text:
    Winton’s Appeal Morss’s Appeal. Winton versus Morss, Executor of Mott.
    1. A supplemental bill in aid of a final decree in equity, whose object is to compel the carrying out of the decree, and give full and complete effect to it, will be entertained.
    2. Where a court of equity has once obtained jurisdiction of a subject, it has power to enforce its own decree in reference thereto, without being obliged to have recourse to the assistance of a court of law.
    3. Where a complainant in equity, who has filed a bill praying that certain conveyances of real estate may be declared to amount to a mortgage, obtains a decree in his favor, by the terms of which he is declared to be entitled to a conveyance of said real estate on the payment of certain sums of money by him to defendant, and afterwards said complainant fails to pay said sums, although said conveyances are executed and tendered by defendant, it is competent for the court, on the filing by defendant of a petition in the nature of a supplementary bill to enforce the decree, to order the amount of rent in the hands of the lessee of said real estate to be paid by him to defendant, to apply on the original decree.
    4. Although a court of equity has no right to decree a sale of mortgaged premises at the instance of a mortgagee, in a distinct and independent proceeding. it is nevertheless justified, under the circumstances mentioned above, in ordering a sale of the real estate in question, if, within a specified time, the amount due by complainant to defendant be not paid, the purchase-money to be applied on account of the amount so due.
    March 11th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeals from the decree of the Court of Common Pleas of Luzerne county. In Equity. Of July Term 1879, Nos. 43 and 82.
    This was a petition, filed April 13th 1877, by D. K. Morss, surviving executor of James Mott, deceased, defendant in the equity cause of Winton v. Morss et al., in which cause a final decree was entered January 26th 1875, and affirmed in the Supreme Court, upon appeals taken by each party January 29th 1876. This petition was in the nature of a supplemental bill to enforce the said final decree. It was entitled as a proceeding in the said cause. It recited the prior proceedings in the ease, which were as follows:
    The original bill, filed December 26th 1870, by W. W. Winton, against D. K. Morss, surviving executor, and the widow and heirs of James Mott, deceased, set forth, that on April 9th 1855, Mott, Newton and Vosburg became owners in equal undivided third parts of a tract of coal land in Luzerne county; that by lease dated August 28th 1858, they leased all the coal in said lands at certain rates per ton mined to Barker and others, who, with the assent of the lessors, assigned their interest to the Delaware & Hudson Canal Company, who have since operated under the lease and paid royalty to the lessors. That by virtue of sundry conveyances and agreements, between the lessors, or some of them, and other parties, the plaintiff, Winton, became the owner in equity of one-third (the Newton third) of said tract, subject to said lease; and'of another third (the Yosburg third) subject to the lease, and subject also to the payment of a balance of purchase-money not definitely ascertained; that the legal title to said two-thirds was in James Mott at the time of his death; the complainant Winton offered to pay to the defendant Morss, executor of Mott, all the moneys due by him, and to carry out and perform all the matters and things lawfully required by him to be done, and requested the defendant thereupon to convey to him the said two-thirds of said tract, but the defendant refused, &c. The complainant offering to pay the sums, &c., and to do equity in the premises, prayed equitable relief: 1. That certain assignments, deeds and agreements therein referred to might he decreed to constitute a mortgage to secure the payment of money to the estate of Mott. 2. That the amount of money due by the plaintiff to Mott’s estate be ascertained. 3. That on payment by the plaintiff of such sum, the defendant, as executor, be required to convey to the plaintiff the Newton third and the Yosburg third of said tract.
    An answer was filed, and the cause was referred to a master, who reported that the papers referred to constituted a mortgage; that the mortgage money of the Newton third had been paid in full; that the balance of the purchase-money due by the complainant on the Vosburg third was $5820.79, and the balance due by the complainant on a loan, which was alien on said Yosburg third, was $5120.73, which sums were payable by the plaintiff to entitle him to a conveyance of this third.
    Exceptions filed to the report were dismissed by the court, the report confirmed, and on January 26th 1875, the court entered a decree (1) that on payment by plaintiff of the costs of suit, the defendant Morss, executor, convey to the plaintiff the Newton third; (2) that upon payment by the plaintiff to the defendants of the sum of $10,941.52, with interest from December 1st 1873, within sixty days, the defendant, Morss, executor, &c, convey to the plaintiff the Yosburg third, subject to the rights of the Delaware & Hudson Canal Company under the above mentioned lease.
    From this decree both parties appealed to the Supreme Court, which court dismissed the appeal of each party, and affirmed the decree of the court below, subject, however, in • Winton’s appeal, to the settlement of a bill of costs filed, which the Supreme Court remitted to the court below for taxation. This remittitur was filed June 29th 1876.
    On September 8th 1876, the court below, on motion, ordered that the defendants file the deeds from Morss, executor, to Winton for the Newton and Yosburg thirds, as directed by the decree of January 26th 1875, subject to the order of the court; and it was further ordered that the plaintiff make full compliance on his part with the said decree, on or before the first Monday of October 1876, twenty days’ notice to be given to the plaintiff of this order.
    The plaintiff paid into court the costs of suit, and moved the court to permit him to take the deed for the Newton third out of court. The court dismissed this motion, on the ground that plaintiff could not comply with the decree in part and obtain a partial benefit under it, but must obey it in full.
    No further proceedings were had in the cause, until the filing of the present petition by the defendant on April 13th 1877. This petition after setting forth in substance the foregoing facts, averred that the petitioner (the defendant) had been at all times ready and willing to comply with the decree of January 26th 1875; had tendered to the plaintiff and filed the deeds to him for the Newton and Vosburg thirds; but that the plaintiff refused to pay the sum of $10,941,52 with interest, for the Yosburg third, .as directed by the said decree.
    The petitioner further averred that the value of the said Yosburg third has depreciated by reason of the taking out of coal by the Delaware & Hudson Canal Company under the lease; that it is entirely insufficient for the payment of the amount so due upon it; and that the coal rents or royalties have been retained by the Delaware & Hudson Canal Company, under notice from all parties that they should not be paid over until the rights of the parties should be legally determined.
    The petitioner prayed: (1) Fora rule upon plaintiff, Winton, and also upon the Delaware & Hudson Canal Company, to appear and show cause why the question of rents should not be referred to a master, to ascertain and determine the amount thereof due and owing from said company, for coal taken under the lease from the Yosburg third and also from the Newton third. (2) For an order upon said Delaware & Hudson Canal Company, for the payment of said rents to the petitioner to apply on the balance found to he due to the estate of James Mott,'deceased. (3.) For an order for the sale of the said Yosburg third for the payment of any balance that may he found to he due after deducting the rents, the surplus, if any, to be paid over to the plaintiff
    The court having granted a rule to show cause in accordance with the prayers of the petition, the plaintiff, Winton, filed an answer, in which he denied the right of the petitioner to make the Delaware & Hudson Canal Company a party to the suit, or to compel them to interplead therein; he excepted to the petition and rule as irregular and insufficient to give the court jurisdiction over the subject-matter thereof, for the reason that the decree entered on January 26th 1875, and affirmed by the Supreme Court in June 1876, before the filing of the said petition, was final and conclusive. He further denied the right of the defendant Morss, executor, to receive the rents accrued under the lease from the Newton and Yosburg thirds, which rents, he averred, were his absolute and exclusive property ; and he denied the jurisdiction, in this proceeding, to take cognisance of the question of the right to said rentals, or to refer the question to a master, or to make any order or decree concerning the same. He further denied the jurisdiction of the court to order a sale of the Yosburg third, as prayed in the petition.
    The Delaware & Hudson Canal Company filed an answer setting forth that they were, many years ago,' notified by Mott and by Barker (through whom Winton claims) not to pay coal rentals to either of said parties; that the rents in their hands up to February 1st 1875 were attached by attachment-execution, issued out of the Court of Common Pleas of Luzerne county, and served on that date; under a judgment in said court, in favor of one Flower against the said Barker for $3570, which amount is greater than any balance of rents in their hands. The company further submitted that it is not a party to the said cause of Winton v. Morss et al., and that the question to whom the said rents are payable by them cannot be'legally determined under the said petition and rule.
    The court, on January 30th 1878, entered the following order: “ Aaron Flower, plaintiff in the attachment-execution against Abel Barker, appearing and waiving further notice, the ascertainment of the rents due from both the Vosburg and Newton thirds, is referred to George R. Bedford, master, who will report to the court the amounts respectively due on the Yosburg third, and those due on the Newton third at the time of the notice by Mott to the Delaware & Hudson Canal Company to retain the same, and those which have since accrued on each of said interests.
    “ The rule for an order on the Delaware & Pludson Canal Company to pay said rents to defendant, and for an order of sale of the Yosburg third is continued.
    “The decree of 26th January 1875, ordering the plaintiff to pay to said defendant the sum of $10,941.52, together with lawful interest thereon from December 1st 1873, within the time in said decree specified, being the amount ascertained to be due on the Yosburg third, is hereby amended by adding to it this clause, to wit: ‘ And upon the plaintiff’s failure to make said payment (of $10,941.52, with interest), for a period of thirty days after the filing of this order and notice of the same him, that he, the said plaintiff, be for ever barred from all claim to, and equity of, redemption in the said Yosburg third.’ ”
    From this order the plaintiff, Winton, appealed to the Supreme Court, which court reversed the said decree on the ground that the amendment of the decree was error, and remitted the record for further proceedings in accordance with the opinion of the Supreme Court. The proceedings upon this last-mentioned appeal are reported in Winton’s Appeal, 6 Norris 77, q. v.

    On March 10th 1879, the report of the master, to whom had been referred the matter of the ascertainment of rents due by the Delaware & Hudson Canal Company to the defendants, was filed. The master reported that the Delaware & Hudson Canal Company are indifferent stakeholders of accrued rents as of June 28th 1878, to the extent of §2085.26, due on the Vosburg third, and a like amount of §2085.26 due on the Newton third. Exceptions thereto were dismissed, and the report confirmed by the court, Hardisg, P. J., saying, in an ’opinion, filed: “Two questions seem yet to remain in this long-litigated case, * * * first, has this court, sitting in equity, jurisdiction to decree the sale of mortgaged premises, at the instance of the mortgagee ? secondly, has this court, sitting in equity, jurisdiction to make the order, in respect to the rents, sought under the exceptional, anomalous and extraordinary circumstances and facts developed in the case, as well before as after final decree ?
    “ In the beginning this case was clearly within the jurisdiction of equity. The established principle is that when once a court of equity takes cognisance of a litigation, it will comprehend within its grasp every subject embraced in the circle of contest, whether the question be one of remedy or of distinct yet connected topics of dispute; it will decide all incidental matters necessary to enable it to make a full and final determination of the whole controversy. In other words, when its jurisdiction rightfully fastens to even one of the subjects of contest, it may embrace all that are inseparably involved, for equity abhors multiplicity of suits.
    “ But this must be understood as referring to matters thus incidently involved, which are themselves within the jurisdiction of chancery; otherwise questions triable solely in a court of law before a jury, such as ejectment founded on legal title, an action of scire facias on a mortgage where the relation of debtor and creditor alone existed, an action of debt on bond or a replevin and the like, might become intermingled in a proceeding in equity, and all the contested facts connected with them be decided by the judge without the intervention of a jury at all. This would be ail wrong. Under our Constitution even the legislature could not confer such chancery power upon the courts. The authority to do so, apparently contained in the concluding words of art. V., sect. 20, must be subordinated to the Declaration of Rights, art. L, sect. 5, which provides that ‘ trial by jury shall be as heretofore, and the right thereof remain inviolate.’
    “Besides, it must not be overlooked that, in Pennsylvania, chancery jurisdiction over mortgages, involving only the relation of debtor and creditor between the parties, has never been conferred upon the courts by the legislature, either directly or by implication. Whatever may have been, or still may be, the powers of the English chancery in this respect, we have none of them in this state. * * * Mortgages are neither mentioned nor referred to in any of the statutory provisions upon the subject. The jurisdiction invoked now nowhere exists.
    [“ No matter, then, how great may be the equities of the defendants in the bill, I must refuse the motion for ‘ an order of sale of the Yosburg third.’3 The case of Ashhurst et al. v. The Montour Iron Company, 11 Casey 30, is directly in point; it was there distinctly, and in so many words, decided that the courts of Pennsylvania have no jurisdiction in equity to decree a sale of mortgaged premises at the instance of the mortgagee.] (Assignment of error in Morss’s appeal.)
    “ In the second place, what is to bé done with the motion for an order on the Delaware & Hudson Canal Company to pay to the defendants in the bill as well the rents due from the Yosburg and Newton thirds, respectively, a,t the time of the alleged notice by Mott to the company to retain, as those which have accrued from the same subsequently ? * * * As I understand the motion, it contemplates a purpose altogether proper and remedial in the premises; and, in my judgment, if acted upon within the limits of our clearly possessed chancery power, it must and can have no other effect than to aid in enforcing or carrying out a long standing decree of this court, which hitherto has been set at naught, and which may possibly fail of enforcement altogether if this power be not exercised. * * *
    “ The Delaware and Hudson Canal Company are the lessees of the coal, acknowledged as such on all sides; a large amount of rents have accrued prior to and during the pendency of this litigation, and are now in the hands of that company ; these rents represent the very body of the estate in dispute ; they stand in its stead; the lessees are mere indifferent stakeholders with notice to retain: clearly, then, the chancery power of this court may direct the application of the rents where undoubted equity points. Why, if there had been no lease in the case, and the plaintiff, refusing to pay the purchase-money and the mortgage money decreed, had insisted upon taking out the coal and selling it, would not a court of equity enjoin him at once ? Or, if he had taken out the coal and sold it, would not replevin lie against the purchaser with notice ?
    “To conclude : The order for a reference to a master cannot be awarded to the extent sought. The Delaware and Hudson Canal Company cannot now be interjected into this suit as a party, nor be called upon in any way connected with it, to answer matters involving possible litigation between the company and the grantors under whom the plaintiff claims, or between the company and the plaintiff himself. Such litigation, if perchance there be any, might develop questions triable only in a court of law before a jury. Nor can the -plaintiff be called upon to answer further in this business. The controversy between him and the defendants, in respect to all matters upon which the final decree was based, has been put at rest. To the extent, however, that the Delaware & Hudson Canal Company are indifferent stakeholders of the rents after duo notice to retain, I think this court may inquire. The plaintiff should have due notice of the proceeding always, and also Aaron Flower, attaching creditor of Abel Barker. After ascertainment of the amount, I am of the opinion that we possess ample chancery power to direct the application of the rents where unmistakable equity suggests. If the amount should equal the sum of the original decree, its application, as indicated, would accomplish already adjudged equity between the parties; if less, and the plaintiff should still persist in his refusal to obey the original decree, subsequently accruing rents may be alike ascertained, and their application alike directed. Thus will be completed in equity what was begun in equity, without resort whatsoever to another tribunal.”
    The following decree was entered:—
    “Now, May 12th 1879, it is ordered, adjudged and decreed, that the sum of forty-one hundred and fifty-three hundredths dollars, one-half thereof being from the Yosburg third, and the other half being from the Newton third, as ascertained to be now in the hands of the Delaware & Hudson Canal Company, indifferent stakeholders, and not involved in any possible litigation between the company and the grantors under whom the plaintiff claims, nor between the company and the plaintiff himself, be paid by said company to the defendant to apply on the original decree in this case.”
    Both parties thereupon took an appeal, Winton assigning for error: (1.) The assuming of jurisdiction by the court under the defendant’s petition; the appointment of a master to ascertain the rents due on the Yosburg and Newton thirds by the Delaware & Hudson Canal Company, and the making said company a party by the order of January 30th 1878. (2.) The overruling of his exceptions and the confirming of the master’s report. (3.) The final decree of May 12th 1879, as above. *
    The appellant, Morss, assigned for error the refusal of the court to grant the prayer contained in his petition for the sale of the Vosburg third, as expressed in the portion of the above opinion within brackets.

      James Ryon (with him A. H. Winton), for the appellant in Winton’s Appeal, and for the appellee in Morss’s Appeal.
    The petition of the defendant Morss, filed two years after the controversy between the parties, had been finally settled by the Supreme Court in Winton’s Appeal, 6 Norris 77, was an anomalous and illegal proceeding, which gave the court belbw no jurisdiction to re-open the case. It was neither a cross-bill, an interlocutory petition, nor a bill of review: Dennison v. Goehring, 6 Barr 402; Riddle’s Estate, 7 Harris 431; Russell’s Appeal, 10 Casey 258; Hartman’s Appeal, 12 Id. 70; Green’s Appeal, 9 P. F. Smith 235. The issue raised on the petition was entirely different from the objects of the original bill. The decree was that Winton may, upon payment of a certain amount, at his option, compel a reconveyance. The petition does not seek, as a supplemental bill in aid of a decree, to enforce the decree; for the decree was in Winton’s favor, and the defendant is seeking to enforce it as a judgment against him.
    A mortgagee out of possession has a mere lien on the land, he is not entitled to the rents, issues or profits, and the lessee cannot be made a party, especially after final decree, and be compelled to pay over such rents to the mortgagee: Bittinger v. Baker, 5 Casey 66; Bank v. Patterson, 9 Barr 311; Anderson v. Neff, 11 S. & R. 208; Kenton v. Vandergrift, 6 Wright 344; Ashhurst v. Montour Iron Co., 11 Casey 30. In this case, the mortgagee, having never had actual possession, has no right to the two-thirds of rents belonging to the plaintiff.
    The statutory proceeding on a mortgage in Pennsylvania is by scire facias, and the courts have no jurisdiction in equity to decree a sale of mortgaged premises at the instance of the mortgagee. The defendant cannot come in after the final decree and have it altered by attaching to it an order of sale and foreclosing the equity of* redemption: Turnpike Co. v. Martin, 2 Jones 361; Winton’s Appeal, 6 Norris 77; Ashhurst v. Montour Iron Co., 11 Casey 30; Denison v. Goehring, 6 Barr 402; Brightly’s Equity, sect. 827, p. 578.

      Henry W. Palmer and Benjamin S. Bentley, for the appellant in Morss’s Appeal, and for the appellee in Winton’s Appeal.
    This petition was in the nature of a bill to enforce the final decree by compelling the plaintiff to do the equity which in bis bill he offered to do, but which, after obtaining a decree for the relief prayed for, he has refused to do. This is not the case of a mortgagee out of possession demanding rents and profits. The body of the estate, whether pledged, leased or sold, was the coal. The lessees by removing the coal, which they had a right to do, took the estate itself, the lessors’ and mortgagee’s portion of which is represented by the royalties or proceeds thereof remaining in the lessees’ hands. The Delawai’e & Hudson Canal Company lessee is not made a party to the litigation, but, as indifferent stakeholder, is willing to pay the stake to the party entitled thereto. The defendant has complied with his duty under the decree, 'and merely asks that the decree be enforced' as against the plaintiff.
    Under the circumstances of this caso we were entitled to a decree for the sale of the Vosburg third. We might have brought an equitable ejectment, and obtained a conditional verdict, and if not complied with the court would order a sale. But we were brought directly into a court of chancery by our opponents, and the court of equity, having taken jurisdiction, and awarded to the plaintiff the equity he claimed, will work out our equities by enforcing the plaintiff to do the equity he promised. A court of equity will decree a sale of mortgaged premises for the benefit of the mortgagee if necessary to work out the equities of both parties. The money proceeds of coal, in the hands of the lessees, represents part of the purchase-money which the plaintiff was decreed to pay us for the Vosburg third: these proceeds should be paid to us in the partial enforcement of the decree; and the Vosburg third, or what remains of it, should he sold to pay us the rest. It is argued our remedy is by scire facias or ejectment, hut the coal as to a part is gone, and the proceeds are in the control of the court. Wo have no personal security, and if we were to proceed by scire facias we would have the privilege of selling a hole in the ground.
   Mr. Justice Paxson

delivered the opinions of the court May 2d 1881.

Winton’s Appeal.

This proceeding was in the nature of a supplemental bill in aid of a decree in equity. It is not so technically, for the reason that it was commenced by petition. The form adopted was not objected to, nor is it material.

That a bill may he filed for such a purpose is well settled. It is true it cannot vary the principle of the decree. Its province is to carry out the decree, and to give full and complete effect to it as it exists: Hodson v. Ball, 1 Phil. Ch. 177; Adams’s Equity, 416, where several authorities are cited.

It would be tedious to recite all the prior proceedings in this case. The original decree which it is now sought to enforce was entered January 26th 1875, on a bill filed by this appellant, praying that a certain deed and certain assignments specified in said bill, may respectively be decreed to be a mortgage; that the amount due by said plaintiff (appellant) may he ascertained, and that when so ascertained, upon the payment thereof by the plaintiff (which payment in full the plaintiff' offered to make), the defendant may be decreed to make and execute “ a deed of conveyance for the undivided one-third part of the said tract of land aforesaid.” A protracted litigation resulted in the decree of January 26th 1875, before referred to, which sustained the position assumed by the plaintiff, that the papers referred to, though absolute on their face, yet in reality constituted a mortgage. The decree further ordered, that upon the payment by the plaintiff of the costs of suit, the defendant should convey a one-third interest in the Calvin Barber tract; and that upon the payment by the plaintiff to the defendants of the sum, of $10,941.52, they should convey another third of said tract. In obedience to this decree the defendants executed the necessary conveyances for the Newton third and the Vosburg third of said tract of land, tendered them to the said plaintiff, who refused to accept them and to pay the money. The deeds were then filed;

This proceeding was then commenced in the court below. Upon the filing of a petition setting forth the facts, the court granted a rule upon the plaintiff and also upon the Delaware & Hudson Canal .Company, lessees of the land in controversy, to show cause why the amount of rent in the hands of said company, due the plaintiff, should not be ascertained and applied to the payment of the amount found to be due defendants by the decree of January 26th 1875; and also to show cause why the Vosburg third of said tract should not be sold for a like purpose. This proceeding^ resulted in the following decree: “Now, May 12th 1879, this cause came on to be further heard, and was argued by counsel, and and thereupon upon consideration, it is ordered, adjudged and decreed that the sum of $4100.53, one-half thereof being from the Vosburg third, and the other half being from the Newton third, ascertained to be now in the hands of the Delaware & Hudson Canal Company as indifferent stakeholders, and not involved in any possible litigation between the company and the grantors, under whom the plaintiff claims, nor between the company and the plaintiff himself, be paid by said company to the defendant to apply on the original decree in this case.”

It was to this decree the appeal was taken..

The court below declined to order the sale of the Vosburg third, as prayed for, from which refusal the defendant appealed. His appeal will be subsequently considered.

The position of the plaintiff is this: Having obtained a decree in his favor by which the deed was declared a mortgage, upon the offer to pay promptly and in cash the amount due thereon, he now declines to pay the money, and denies the power of the court to compel him to do so. He seems to be under the impression that the cause has reached a point where the court has lost its power; that the proceedings are at a dead lock, and that the only remedy left the defendant is to go into a court of law with his scire facias upon the mortgage, a writ of ejectment or action of covenant. In the meantime the land, which is chiefly valuable for its coal, is being constantly depreciated by the working of its mines.

The plaintiff has mistaken the powers of a court .of equity. It is not so helpless as he imagines. When once it has a case within its grasp it has all the authority necessary to a full disposition of all tho questions arising therein. In doing so it has no occasion to call to its aid tho assistance of a court of law. Its remedies are plastic, and may be moulded to meet the exigencies of the case. The plaintiff having invoked this jurisdiction and obtained the relief ho sought, cannot now turn the defendant over to a court of law to obtain tho redress to which he is entitled upon the plaintiff’s own showing. The tribunal to which the latter has appealed will hold him and his property within its grasp until he does that equity which ho solemnly promised to perform.

This is no new doctrine. It was said by this court, in McGowin v. Remington, 2 Jones 63, “ that when a court of equity takes cognisance of a litigation it will dispose of every subject embraced within the circle of contest, whether the question be of remedy or of distinct yet connected topics of dispute. If the jurisdiction once attaches from the nature of one of the subjects of contest, it may embrace all of them, for equity abhors multiplicity of suits.” In Souder’s Appeal, 7 P. F. Smith 498, it was held that “ when a court of equity once obtains jurisdiction of a subject it will comprehend and decide all incidental matters necessary to enable it to make a full and final determination of the whole controversy.” Authorities might be multiplied indefinitely were it necessary.

It is the merest technicality to say that the decree of January 26th 1875 contains no direct order upon the plaintiff to pay the money. Why should it ? It was a decree against the defendant upon the plaintiff’s bill. It was obtained upon the faith of plaintiff’s offer to pay tho money. It would have been gratuitous to make a decree against him to do what he bad offered to do as a ground of his relief. His present attitude is that of one who has trifled with, if not deceived, the court.

The supplemental petition is strictly in aid of the decree. It does not seek to change it or to modify the principles upon which it was pronounced. It merely asks that it may be enforced, and that the amount ascertained to be due, a portion of which is purchase-money, may be paid. The Delaware & Hudson Canal Company, an indifferent stakeholder, has in its possession a sum of money due on the coal lease of this very land. The court below committed no error in awarding it to the appellee.

The decree is affirmed, and the appeal dismissed, at the costs of the appellant.

Morss’s Appeal.]

Much that was said in Winton’s Appeal, just decided, is applicable to this case. The present appeal was to the refusal of the court below to order a sale of the Vosburg third of the Calvin Barber tract of land. The action of the learned judge was based upon the ruling of this court in Ashhurst et al. v. The Montour Iron Company, 11 Casey 30, where it was held that the courts in Pennsylvania have no jurisdiction in equity to decree a sale of mortgaged premises at the instance of the mortgagee.

This principle is correctly stated and is amply sustained hy the authority cited. It has no application to this case, however. This proceeding was not in its origin an application for the sale of mortgaged premises on the part of the mortgagee; on the contrary, it was a bill filed by the mortgagor to have an absolute deed declared a mortgage, accompanied with an offer to pay the mortgage-debt in cash as soon as the amount thereof could be ascertained. The plaintiff (mortgagor) succeeded in his application, and a decree was made in his favor on his bill. He now refuses to pay the debt, and the present application on the part of the mortgagee is to have the mortgaged premises sold to enforce the original decree. The appellant has a clear right to the order of sale. The power of the court to grant it rests not upon the right of a court of equity to decree a sale of mortgaged premises at the instance of .the mortgagee, in a distinct and independent proceeding, for it has no such right, 'but upon that other familiar rule of equity which was referred to in Winton’s Appeal, that where the jurisdiction of a court of equity has once attached, it embraces within its grasp all powers and remedies necessary to give effect to the equity which is invoked. “ It will dispose of every subject embraced within the circle of contest, whether the question be of remedy or of distinct, yet connected, topics of dispute:” McGowin v. Remington, 2 Jones 63. The sale of this property has become necessary to enforce the decree of the court. It does not need the aid of a court of law for such purposes. Its own power is ample, and its process sufficiently plastic to sell either a tract of land or a horse, where either becomes essential to a full and final determination of the controversy. As was well said by the learned judge below: “Equity rightfully took charge of this case in the beginning; equity has rightful charge of it now; equity will not drop it until every matter, whether it be of remedy or of a distinct but connected topic of dispute involved in the controversy, and of itself within equitable jurisdiction, has been decided.”

The appellee was the one to bring his case within equitable jurisdiction. The jurisdiction thus invoked is broad enough to grasp the whole subject-matter of controversy, and the right to sell this tract of land is one of its incidents.

If the appellee does not pay the money specified in the decree of January 26th 1875 within sixty days from this date, to wit: May 2d 1881, it will be the duty of the court below to order a sale of the tract of land in question in accordance with the' prayer of appellant’s petition.

The order refusing such sale is reversed at the costs of the appellee.


source: Caselaw Access Project

author: Mr. Justice Paxson Paxson, J.

license: Public Domain

text:
    Commonwealth versus McHale, Kelley, Feeney and Others, Unknown. Commonwealth versus McHale and Others, Unknown. Commonwealth versus McHale. Commonwealth versus James T. Kelley. Commonwealth versus John J. Kelly.
    1. Offences against the purity and fairness of public elections are crimes at common law andsindictable as such.
    2. The making of false and fraudulent entries in the book of voters at an election, the depositing of false and fraudulent ballots on a like occasion, and the assuming and undertaking to count the ballots cast at an election, in a false and fraudulent manner, are acts which, if not performed by election officers, are not specified as indictable offences, either by the Act of July 2d 1839, Pamph. L. 519, or any other Act of Assembly. They are nevertheless, offences at common law, and as such indictable, under the terms of the Act of March 31st I860, sect. 178, Patnph. L. 425.
    3. An indictment set forth a conspiracy to commit certain offences against the’ election laws, some if not all of which were expressly made indictable by the provisions of the Act of July 2d 1839, Pamph. L. 519, and further set/forth divers overt acts, constituting the offences above named, alleged to have been performed in pursuance of said conspiracy. Held, that the gist of the offence charged lay in the combination, that the overt acts alleged were no part of the offence, hut merely evidence of it, and that, therefore there being no provision in said Act of Assembly, making a conspiracy to perform the acts nominated as offences therein indictable, the indictment could not be sustained under the terms of said act. Held, further, nevertheless, that said conspiracy, though not particularly nominated as an indictable offence by any other statute, was an offence at common law, and as such indictable under the terms of the Act of March 31st 1860. sect. 178, Pamph. L. 425.
    4. Offences against the election laws, not made indictable by the Act of July 2d 1839, Pamph. L. 519, are governed, as regards the limitation of the time within which prosecution may be instituted, by the terms of the Act of March 31st 1860, sect. 77, Pamph. L. 450, whereby it is provided that such prosecutions may be instituted within two years next after the offence has been committed, and not by the terms of the Act of July 2d 1839, sect. 128, Pamph. L. 457, whereby said time is limited to one year.
    5. Whether the latter provision is repealed by the former, not decided.
    6. The Act of March 12th 1866, sect. 1, Pamph. L. 85, enabling the court to appoint a special district attorney for the conduct of a case, was not avoided by the passage of the new Constitution of 1874, making the district attorney a constitutional officer. The legislature cannot abolish the office, but can control the officer, and if he refuse, or if it be improper for him to act, may alibi'd a remedy.
    7. An indictment was brought against certain persons, for alleged offences against the fairness and purity of an election, which were said to have resulted in the election of the district attorney in office when the indictments were drawn. Said district attorney disagreeing with the private counsel for the prosecutor, as to the method of proceeding, refused to sign the indictments. ■ The court being informed of these facts, by the prosecutor’s counsel, appointed the latter special district attorney to conduct the case, under the provisions of the Act of March 12th 1865, sect. 1, Parnph. L. 85. Held, that said course of action was legal and proper, and that indictments signed by said private counsel, as special district attorney, and by him presented to the grand jury, were valid and sufficient to support a conviction.
    March 14th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Quarter Sessions, of Schuylkill county : Of January Term 1880, Nos. 296, 297, 298, 299 and 300.
    These five cases were argued together. 'The record showed the following proceedings'in each case :
    On October 28th 1879, W. John Whitehouse made informations before a justice of the peace against the above-named defendants, charging them with the offences hereinafter particularly specified. All the defendants waived a hearing except McHale, to whom the justice gave a hearing, and on Monday November 3d 1879, bound him over to appear at court. The justice immediately returned the cases to the district attorney.
    On the same day, November 3d 1879, W. John Whitehouse presented to the court his petition, under the Act of March 12th 1866, Purd. Dig. 491, Pamph. L. 85, setting forth that “a difference of opinion as to the proper manner of proceeding has occurred between A. W. Schalck, Esq., district attorney, and the private counsel employed by the prosecutor, in that the district attorney has refused to sign and send before the grand jury the bills of indictment prepared by the private counsel, which said counsel and this prosecutor believe to state correctly the facts so far as the same have come to their knowledge; that the alleged frauds charged in said indictment were perpetrated in the interest of said district attorney, and the bills of indictment so charge; that the district attorney alleges that the bills of indictment do not correctly state the facts concerning which the prosecutions were brought;” and praying the court to direct the private counsel, Guy E. Farquhar, Esq., employed by the prosecutor, to conduct the entire proceedings, and if necessary to verify the indictments by his own signature.
    The court having given the district attorney an opportunity to .sign the bills, during the session of the court, on his failure to do so, or to present other indictments,' on the same day granted the prayer of the petition and appointed Guy E. Farquhar, Esq., special district attorney to prosecute the'cases.
    Mr. Farquhar having been sworn in, signed and presented the indictments to the grand jury, then in session, which body found a true bill in each case-

      The several cases were as follows:—
    I. and II. Two Conspiracy Cases, January Term 1880, Nos. 296, 297.
    Two indictments for conspiracy were found, the one against Anthony Molíale, James T. Kelley, Martin Feeney and others unknown, and the other against Anthony Molíale and others unknown. They were, excepting as to the names of the defendants, precisely similar. They charged in the first count, in substance, that on November 5th 1877, the defendants, intending to prevent a free election at the South Cass poll, and intending to procure a false return, did conspire, by means of procuring unqualified persons to oiler to vote, and procuring the election officers to accept such votes, and by means of false entries in the books kept by the election clerks of names of persons purporting to have voted, and by means of false ballots and false count, and other corrupt means, fraudulently to procure a return from the election officers to the prothonotary, which would show falsely a greater number of votes for A. W. Schalck for district attorney than a true and correct return would have shown, and to cause the said false number of votes to be computed in the general count of votes cast for said office. It is then alleged, as overt acts, that in pursuance of said conspiracy the defendants did, on November 6th 1877 (election day) procure many unqualified persons (naming them) to oifer to vote, and did procure the election officers to receive such votes, and did cause the names of many persons (naming them) to be falsely added to the books of the election officers, known as the “lists of voters,” as if they had voted, when, in fact, they had not, and did cause false ballots to be substituted and counted instead of the true ballots — the false ballots containing the name of said Schalck for district attorney — and did falsely deposit in the boxes a large number of ballots not polled by voters, all containing the name of A. W. Schalck, and did fraudulently make a false count of the ballots, and did cause a false return of the votes cast, which return they caused to be transmitted to the prothonotary as the return of votes cast at such election.
    The second count was identical with the first, excepting that it did not state specifically the means intended to be used by the conspirators, stating them only as “ divers tricks and devices, and other illegal and corrupt means.”
    The third count was identical with the second, excepting that it stated the intention of the conspirators to be to procure a false return (omitting the charge as to preventing a free election), and that it omitted, in the averment of overt acts, any charge as to procuring unqualified persons to vote, and the reception of such illegal votes by the election officers.
    The fourth count was identical with the third, excepting that it omitted all averment of overt acts, simply charging that the defendants, intending to procure a false count and return of the votes cast at said election, conspired by means of divers tricks, &c., to procure a return from the election officers to the prothonotary as the return of the said election, which return would show falsely a greater number of votes for A. W. Schalck than would have been returned according to the .true count, and to cause said false number of votes so returned, to be computed for said Schalck in the general count.
    The fifth count charged that the defendants, intending to procure a false computation in the general count and computation of the votes cast for said office, conspired by means of divers tricks, &c., to 'cause a false number of votes to be computed for A. W. Schalck for said office, greater than would have been computed according to the true vote cast.
    III. Case v. McHale, for fraud at election, January Term 1880, No. 298.
    The indictment charged that McHale (alone), intending to procure a false count and return, did, on November 6th 1877, make false entries iri books kept by election clerks, known as lists of voters, of names of divers persons (naming them), purporting thereby that said persons had voted at said election when, in fact, they had not voted, and, in a second count, that McHale, with like intent, did fraudulently deposit among the ballots deposited by the voters cast at said election by the electors voting thereat, false ballots to a large number, with the intent that such false ballots should be counted and returned by the election officers with the same effect as though they had been legally cast.
    IV. Case v. James T. Kelley, for fraud at election, January Term 1880, No. 299.
    Defendant was charged in this indictment, that on November 6th 1877, at an.election held on that day at South Cass poll, intending to procure a false count and return of the votes cast by the electors voting, he did fraudulently deposit among the ballots deposited by the persons voting, false ballots to a large number, with the intent that they should be counted and returned by the election officers with the same effect as. though they had been legally cast.
    V. Case v. John J. Kelly, for fraud at election, January Term 1880, No. 800.
    This indictment was against one of the election officers (neither McHale nor James T. Kelley was an election officer) and charged that on November 6th 1877, at a general election held at South Cass poll, intending to procure a false count and return of votes at such election, he did make false entries in the books kept by the clerks at said election, known as “lists of voters,” of the names of a large number of persons (naming them), purporting thereby that they had voted at said election, when in fact they had not so voted.
    The defendants in each case moved to quash the indictments, to wit:
    Conspiracy Cases, Nos. 296, 297.
    To these indictments, the reasons alleged for quashing were:
    1. That the bills were not signed by the district attorney, nor any person authorized by law to sign the same in his stead.
    2. That the bills were found more than one year from the commission of the offence, within which period they should have been found and not afterwards.
    3. That each count contained a joinder of offences.
    4. That the bills charged an executed conspiracy and several substantive offences perpetrated in pursuance thereof, punishable by law.
    6. That the overt acts charged, if done by an individual, would not be criminal, and that no facts are alleged making the commission by combination thereof criminal.
    6. That the bills were’not found upon any return made to the district attorney, but were prepared prior to tho preliminary hearing and return, by a private and unofficial citizen not authorized to act in place of the district attorney, and that the indictments contained a charge for which defendants were not held to answer.
    McHale Case, for fraud at election, No. 298.
    The reasons alleged were the same as Nos. 1, 2 and 6 preceding.
    Case v. James T. Kelley, No. 299.
    The reasons were the same as Nos. 1, 2, 4 and 6 preceding.
    Case v. John J. Kelly, No. 300.
    The reasons were the same as Nos, 1, 2, 4 and 6 preceding.
    In addition to the facts appearing by the record in these cases, as above set forth, the following facts were referred to upon tho hearing of the motions to quash, and were contained in the history of the case in the paper book of plaintiff in error. At the general election, held November 6th 1877, Adolph W. Schalck and W. John Whitehouse were rival candidates for tho office of district attorney of Schuylkill county. A. W. Schalck received tho certificate of election and took the oath of office. Shortly after the said election, W. J. Whitehouse filed his" petition contesting the validity of Mr. Schalck’s election. The matter was referred to an examiner (Mason Weidman, Esq.), before whom nearly two years were occupied in the taking of over 9000 pages of testimony, the gist of which was to the following effect:

      On the day of said election, McHale and James T. Kelley (neither being officers of election), after the poll closed, prepared a quantity of false tickets, numbering them consecutively, and that they subsequently introduced them into the ballot box. These tickets each contained the name of Adolph W. Schalck for district attorney, and doubtless also the names of the other candidates upon the same county ticket (Democratic). To have the records of the election correspond with the false tickets so introduced into the ballot box, McHale caused John J. Kelly, one of the clerks of election, to add a number of names to the “list of voters” kept by the two clerks during the election. To still further cover his fraud he caused himself to be called in by Martin Feeney, the election judge, to count the ballots, upon pretence that the officers were “ green ” and he an old hand at such matters. . Instead of counting each ballot, however, he lumped them and counted as he pleased to make the result tally with his false tickets, and, as was alleged by the contestants, to correspond with some ulterior purpose, i. e., the object of the alleged conspiracy.
    The examiner, in his report, filed October 13th 1879, recommended that the parties implicated be prosecuted criminally for their acts. There was no suggestion of fraud or improper acts on the part of Mr. Schalck. No immediate action was taken, however, by the court or the district attorney, towards a. public prosecution, and as two years had nearly expired since the election (the time believed by the contestant to be the period of limitation fixed by law), Mr. Whitehouse, on October 28th 1879, made his private information against the defendants, as hereinbefore stated.
    After argument of the motions to quash, the court, on February 23d 1880, entered an order in each of the cases, “Indictment quashed.” Pershing, P. J., delivered an oral opinion, which was subsequently reduced to writing and filed-, the material part of which was as follows :
    “The Act of July 2d 1839, constitutes the election code of the state. All subsequent statutes on the subject, including the Act of 1874, were passed as supplements. The proviso to the 128th section of the Act of 1839 (Purd. Dig. 368, pi. 281), limits all suits and prosecutions for the violation of any of its provisions to within one year next after the cause thereof shall accrue, unless therein otherwise provided. If this is still the law on 'this subject, then plainly the statute is a bar to these prosecutions. A reason why such prosecutions should be instituted, within the time mentioned, may be found in the fact that the boxes are needed at the following election, at wffiich time the law requires them to be emptied, and the tickets and papers burned. Thus, what might be most important evidence to bring about a conviction or to establish a defence is obliterated.

      “ It is contended on the part of the Commonwealth that the limitation of one year contained in the Act of 1839, is repealed by the 77th section of the Criminal Procedure Act of 31st March 1860, Purd. Dig. 395, pi. 82, which provides that all indictments for all misdemeanors, perjury excepted, shall be brought or exhibited within two years after such misdemeanors shall have been committed.
    “ It is to be observed that the Penal Code of 1860 does not include in its provisions any offences against the election laws. Legislation upon the subject of regulating elections and punishing frauds committed by the officers conducting them, or others, was left unchanged by the Act of 1860. Does the general language of the Penal Code, limiting the prosecution by indictment of all misdemeanors to two years, repeal the provision of the Election Code requiring offences against it to be prosecuted ‘within one year ?’ We think not.”
    [The court here discussed the principle that a general act is not to be construed to repeal a previous particular act, unless there is some express reference to the previous legislation on the subject, or unless there is a necessary inconsistency in the two acts standing together.]
    “We see no difficulty in the way of applying these rules of construction to the case in hand. The Act of 1860 does not expressly repeal the limitation contained in the Act of 1839, nor does any supplement to the latter act contain any such repeal.
    “ Our conclusion has boon influenced by another consideration. The several offences for which these defendants are indicted are not designated as misdemeanors in the Act of 1839. Giving, therefore, the Act of 1860 full sweep, where it declares that all misdemeanors may bo prosecuted within two years, can we say that this applies to an offence which the statute does not call a misdemeanor, and which is to be proceeded against ‘ within one year?’ It seems to be a peculiarity of the Election Code of 1839, that it provides for the indictment and punishment not only of election officers, but of ‘ any person’ offending against it, without classifying the crime as a felony or misdemeanor, except in one or two instances not involved in those prosecutions. This could not have been merely accidental, and has some weight in our examination of this matter. (See as to the exceptions, sects. Ill, 113, Act 1839, as given in Dunlop’s Dig. 780). As having a bearing on the effect to which the Act of 1839 is entitled since the adoption of the new Constitution and the passage of the Act of May 19th 1874 (Contested Elections, Pampli. L. 208), we may refer to In re Contested Election of Barber, 5 Norris 392; (see particularly p. 400).
    “ If these defendants are guilty, which we do not assume, it is much to be regretted that very nearly two years were allowed to pass by before the law was called into action, especially as all the facts connected with this election in Cass township were known shortly after the election was held. Regarding alone our duty to administer the law, we are unanimously of the opinion that the indictments in these cases must be quashed.”
    The Commonwealth in each case took a writ of error, assigning for error the action of the court in sustaining the motions to quash, and the order quashing the indictments.

      Guy E. Farquhar, special District Attorney, and C. W. Wells (F. W. Hughes with them), for the Commonwealth, plaintiff in error.

      Lin Bartholomew (with him John A. Nash, James B. Reilly and John W. Ryon), for the defendantsin error.
    There are two substantial reasons why the indictments were properly quashed. (1.) The appointment of the special district attorney by the court was unauthorized. The regular district attorney did not refuse to prosecute, and it was not. so alleged in the petition. He is not required to sign all bills prepared by private parties. The reason assigned in the petition was insufficient under the Act of 1866. The district attorney, under the new Constitution, is a constitutional officer, required .by law to sign all indictments; he cannot arbitrarily be deprived of his functions by the courts. The Act of March 12th 1866, is, we contend, repealed by the new Constitution.
    (2.) These indictments are clearly for offences provided for by the Act of 1839, and are barred by the limitation of one year contained in that act. Offences against the election laws are unknown to the common law. They are purely of statutory origin, and such statutes must receive strict construction. Even were the offence charged a common-law offence, the Act of 1806 has superseded common-law remedies wherever a statutory remedy is given, and that act cannot be evaded by calling the offence a conspiracy at common law, to do what is prohibited by the Act of 1839.
   Mr. Justice Paxson

delivered the opinions of the court, May 2d 1881.

Commonwealth v. MoHale, James T. Kelley, Feeney and OTHERS UNKNOWN.

Same v. Anthony MoI-Iale and others unknown.

The single assignment of error in each of the above cases is that the court below quashed the bill of indictment. As the cases are substantially identical they may be considered together.

The indictments were quashed upon the ground th.at the offences charged therein were barred by the Statute of Limitations. They were found by the grand jury on November 3d 1879. The time laid as the commission of the offence was November 5th 1877. This lacks two days of the limitation of two years prescribed for the prosecution for misdemeanors by the 77th section of the Criminal Procedure Act of 1860. The court below held, however, that the latter act did not apply, for the reason that the prosecutions were under the Act of 2d July 1839, Pamph. L. 519, entitled, “An act relating to the elections of this Commonwealth,” the 128th section of which provides that all prosecutions under said act shall be instituted “within one year next after the cause thereof shall accrue, unless otherwise herein provided.” We need not discuss the question whether the limitation contained in this section is repealed by the subsequent Act of 1860, before referred to. We decide the case upon other grounds.

The Act of 1839, with its various supplements, constitutes the Election Code of this state. It defines a large number of offences connected with the holding of elections. The greater portion of them are offences by election officers, though illegal voting and certain acts of unlawful interference with elections and election officers are also prescribed and punished.

The case of the defendants, however, does not come within the Act of 1839, and conséquently not within its limitation. The indictments charge them with a conspiracy to do the things, or at least some of the things prohibited by said act. The object of the conspiracy, as set forth in the first count of the indictment, was “ to procure a false, fraudulent and untrue count and return of the votes so cast by the said electors,” &c. The count then sets forth divers overt acts, some of which, if committed by the parties, would render them amenable to the penalties of the Act of 1839. The second and third counts charge a conspiracy of a like object and similar character, followed by other overt acts committed in furtherance of said conspiracies. The fourth and fifth counts set out the conspiracy but omit the overt acts, being what is known in criminal pleading as the common counts.

It was urged that inasmuch as the particular offences averred as constituting the overt acts were barred by the statute when the indictments were found, the court below was right in quashing the bills. This does not follow. The error into which the learned judge fell was in losing sight of the precise nature of the offence charged, and in supposing the indictment was under the Act of 1839. The indictments were for a conspiracy — a common-law offence — and with which the Act of 1839 has nothing whatever to do. The gisn of this offence is the combination — the unlawful agreement to do the particular thing. And the offence is complete, as all the authorities agree, the moment the combination is formed. The overt acts are no- part of the crime charged; they are merely the evidence of it; the iheans by which the Commonwealth is enabled to prove the conspiracy itself. The object of setting them forth in the indictment is to furnish notice to the defendants of the particular acts the Commonwealth relies upon as evidence of their having acted in concert. In this respect they supply the place of a bill of particulars. The fact of the combination is almost always inferred by the jury from the acts, the overt acts of the parties, as direct evidence in the shape of declarations can seldom be shown. When established, a conspiracy has always been regarded as a serious offence. It is the combination that makes it so. There are many things that one man may do that two or more may not combine to do. In the recent case of Commonwealth v. Bartilson, 4 Norris 487, we had occasion to review this branch of the law of conspiracy with some care, and need not repeat what was there said.

The fourth and fifth counts, as before stated, set forth no overt acts, and there is nothing to connect them even by implication with the Act of 1889.

It is manifest, from what has been said, that as the indictments charge a common-law conspiracy, they are within the limitation of the Act of 1860, and are not barred until after two years.

It was urged, however, that the indictments were properly quashed because not signed by the district attorney. They were signed by Guy E. Earquhar, Esq., who was specially appointed by the court to try these cases, under the Act of 12th March 1866, Pamph. L. 85. The appointment appears to have been regularly made in accordance with the provisions of said act, and was eminently proper, as the district attorney was a candidate at the general election at which the alleged frauds were committed, and which frauds, it is stated, increased his vote. It would therefore have been a breach of professional and official propriety for him to have acted as district attorney in these cases. But it is said the appointment was illegal because the Constitution adopted since the act of 1866 was passed, makes the district attorney a constitutional officer, and as such he cannot be stripped of his powers by the legislature. There is little force in this suggestion. While the legislature may not abolish the office, it can control the officer. They can regulate the performance of his duties, and punish him for misconduct, as in the case of other officers. And where he neglects or refuses to act, or where, from the circumstances of a given case, it is improper and indelicate for him to act, it is competent for the legislature to afford a remedy. This is all that the Act of 1866 does, and we think its provisions are not obnoxious to any constitutional provision.

The order quashing the indictment is reversed in each case, and a procedendo awarded.

Commonwealth v. Anthony McIIale. Same v. James T. Kelley.

Same v. John J. Kelly.

Paxson, J.

The court below quashed the indictment in each of the above cases, upon the ground that the offences charged were barred by the Statute of Limitations. If, as was assumed by the learned judge, the indictments are under the Act of July 2d 1839, and its supplements, and the limitation of one year contained in said act is not enlarged by the 77th section of the Criminal Procedure Act of 31st March 1860, his conclusion is not inaccurate. A careful comparison of the several indictments with the Act of 1839 and its supplements leads us to the conclusion that they are not laid under it, and hence do not come within its limitation. One of them, Com. v. John J. Kelly, No. 300, Jan. T. 1880, may have been intended to come within the provisions of section 106 of said act, but the indictment does not charge the precise offence defined in said section, although it does one of a similar nature. Nor are wo able to find any other Act of 'Assembly which will sustain those indictments. If, however, the acts charged are offences at common law they would not come within the limitation claimed for the Act of 1839. The 178th section of the Crimes Act of 31st March 1860, Pamph. L. 425, provides that “ every felony, misdemeanor or offence whatever, not specially provided for in this act, may and shall be punished as heretofore.” This is a saving section, leaving every crime not specially provided for in this act punishable as heretofore: Report on Penal Code 37. Under it an indictment will lie against a woman as a common scold: Com. v. Mohn, 2 P. F. Smith 243.

The indictment against Anthony McIIale contains throe counts. In the first count it is charged that “ intending to procuro a false count and return of the votes cast by the electors,” &c., he did “ make false and fraudulent entries in the hooks kept by the clerks at said election in said election district, which hooks are commonly known as the list of voters, of the names of divers persons, to wit, twenty-one persons whoso names are as follows,” &c. The second count charges that, with like intent, he did “ deposit among the ballots cast at said election in said election district by the electors voting thereat, false and fraudulent ballots of a large number, to wit, twenty-one ballots,” &e. The third count charges that with like intent he did, “ with the connivance of the election officers holding said election, undertake and assume to count the ballots cast by the electors voting at said election in said election district, and did falsely, fraudulently, maliciously and unlawfully make a false and fraudulent count of said ballots as to make it appear that two hundred and eleven votes were deposited for one Adolph W. Schalck for the office of district attorney, when in truth and in fact he did not receive more than one hundred and eighty-five votes,” &c. o( <v* C

The indictmenti against 'James T. Kelley charges! that with a similar intent to procure a false count, he did ‘f deposit among the ballots cajist at said election, in said election district, by th¿ electors voting thereat, false and fraudulent ballots of a large number, to wit: twe.nty-one ballots,” &c. ,,

The indictment, against John J. Kelly charges substantially the same offence as is set out in the first count of the,! indictment against McITale. ^ !

Some‘of these offences, perhaps all of them, are indictable under the Act of 1839, and its supplements, when committed by election officers. The defendants were not election officers; at least, they were not indicted as such.

It must be conceded that offences which strike at the purity and fairness of elections are of a grave character. Are they indictable at the common law ? This is a serious and at the same time comparatively new question. In considering it, we have little in the way of authority to guide us.

It was assumed by the learned counsel for the defendants that an indictment will not lie at common law for such acts. In their printed argument they dismiss the subject with this brief remark: “ Offences against the election laws are unknown to the common law; they are purely and exclusively of statutory origin.” It may safely be admitted that if the question depends upon the fact whether a precise definition of this offence can be found in the text books, or perhaps in the adjudged English cases, the law is with the defendants. This, however, would be a narrow view, and we must look beyond the cases and examine the principles upon which common-law offences rest. It is not so much a question whether such offences have been so punished as whether they might have been.

What is a common-law offence ?

The highest authority upon this point is Blackstone. In chap. 13, of vol. 4, of Sharswood’s edition, it is thus defined : The last speciesjjjóf offences which especially affect the Commonwealth are those against the public police or economy. By the public police and economy I mean the due regulation and domestic order of the kingdom, whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood and good manners, and to be decent, industrious and inoffensive in their respective stations. This head of offences must therefore be very miscellaneous, as it comprises all such crimes as especially affect public society, and are not comprehended under any of the four preceding series. These amount some of them to felony, and others to mis-demeanors only.” Th.e learned author then proceeds to define certain offences of both classes which aro among the crimes against the public police or economy. The felonies I will omit. The misdemeanors aro: 1. Common or public nuisances, of which a large variety are given, commencing with obstructions to public highways and ending with common scolds. 2. Idleness. 3. Sumptuary laws. 4. Gaming. 5. Destroying game. These, as the text shows, are but illustrations. A large number of these and other common-law offences are now, and have for many years been regulated by statute in England. But in most instances the statute is merely declaratory of the common law, the object being to define the crime with greater accuracy or to increase the punishment.

The above quotation from Blackstone is in harmony with other text writers. Bishop in his work on Criminal Law, vol. i., sects. 358 and 368 (1st ed.) says : ‘ The government requires its subjects to do more than simply abstain from attempting its overthrow. It requires them to give, when called upon, their active assistance to it. and at ail times to refrain from casting obstructions in the way of its several departments and functions. Therefore every violation of these duties, being sufficient in magnitude for the law to regard, is criminal. * * * We see it to be of the highest importance that persons be elected to carry on the government in its various departments, and that in every case a suitable choice he made. Therefore any act tending to defeat these objects, as forcibly or unlawfully preventing an election being held, bribing or corruptly .influencing an elector, casting more than onevote, is punishable under the criminal common law.” Mr. Wharton in his work on Criminal Law, vol. i. sect. 6 (6th ed), places the giving of more than one vote at an election as among the misdemeanors at common law. The Supreme Judicial Court of Massachusetts in two cases has recognised the same doctrine. The first was Commonwealth v. Silsbee, 9 Mass. 417, which was an indictment charging that the defendant did “wilfully, fraudulently, knowingly and designedly give in more than one vote for the choice of selectmen of the said town of Salem at one time of balloting, &c.” After conviction the defendant moved in arrest of judgment that there was no statute covering the offence. It was said by the court: 44 There cannot be a doubt that the offence described in the indictment is a misdemeanor at common law. It is a general principle that where a statute gives a privilege, and one wilfully violates such privilege, the common law will punish such violation. In town meetings every qualified voter has equal rights, and is entitled to give one vote for every officer to bo elected. The person who gives more infringes and violates the rights)of other voters, and for this offence the common law gives the indictment.” The other ease is Commonwealth v. Hoxey, 16 Mass. 385. The defendant was charged with disturbing a town meeting assembled to make choice of town officers for the political year then ensuing, and that the said defendant, “ intending as much as in him lay to prevent the choice of said selectmen according to the will of the electors and to interrupt the freedom of election, unlawfully and disorderly did openly declare that the old selectmen should not be chosen, and attempted repeatedly to take from the box, which contained the ballots of the electors, the votes of the electors,” &c. The defendant pleaded guilty to the indictment, and moved in arrest of judgment; “ because the said indictment purports to be founded upon a statute law of the Commonwealth; whereas there is no such statute in the state making the facts set forth in the indictment an offence against the Commonwealth; and because the facts set forth in the indictment do not amount to an offence at common law.” The court, after admitting there was no statute to meet the case, proceeded to say: “ The remaining question is, do the facts charged amount to an offence at common law ? On this question we entertain no' doubts. Here was .a violent and rude disturbance of the citizens, lawfully assembled in town meeting, and in the actual exercise of their municipal rights and duties. The tendency of the defendant’s conduct was to a breach of the peace, and to the prevention of elections necessary to the orderly government of the town, and due management of its concerns for the year. It is true that the common law knows nothing perfectly agreeing with our municipal assemblies. But other meetings are well known and often held in England, the disturbance of which is punishable at common law as a misdemeanor. In this Commonwealth town meetings are recognised in our Constitution and laws; and the elections made and business transacted by the citizens at those meetings lie at the foundation of our whole civil polity. If then there were no statute prohibiting disorderly conduct at such meetings, an indictment for such conduct might be supported.” While the court put this case partly upon the ground that the defendant’s conduct tended to a breach of the peace, it is evident the principal reason was the interference with the rights of the electors, which as the learned judge truly said “lie at the foundation of our civil polity,” and it may be safely asserted that every fraud upon the ballot tends directly to a breach of the public peace if not to revolution and civil war.

We are of opinion that all such crimes-as especially affect public society are indictable at common law. The test is not whether precedents can be found in the books, but whether they injuriously affect the public police and economy.

It needs no argument to show that the acts charged in these indictments ..are of this character. They are not only offences which affect public society, but they affect it in the gravest manner. An offence against the freedom and purity of elections is a crime against the nation. It strikes at the foundations of republican institutions. Its tendency is to prevent the expression of the will of the people in the choice of rulers, and to weaken the public confidence in elections. When this confidence is once destroyed the end of popular government is notí¡distant. Surely, if a woman’s tongue can so far affect the good of society as to demand her punishment as a common scold, an offence which involves the right of a free people to choose their own rulers in the manner, pointed out by law is not beneath the dignity of the common law, nor beneath its power to punish. The one is an annoyance to a small portion of the body politic; the other shakes the social fabric to its foundations.

We are of opinion that the offences charged in these indictments are crimes at common law. We regard the principle thus announced as not only sound but salutary. The ingenuity of politicians is such that offences against the purity of elections are constantly liable to occur which are not specifically covered by statute. It would be a reproach to the law were it powerless to punish them.

It follows from what has boon said that it was error to quash the indictments.

The judgment is reversed in each caso, a-nd a procedendo awarded.


author: Mr. Justice Trunkey

text:
    William C. Guldin’s Administrators versus Hannah Guldin’s Administrator.
    1. An administrator, party to a suit, who is personally interested in either event of the suit, but whose interest clearly preponderates in favor of a recovery by his adversary, is not a competent witness on behalf of the latter.
    2. Such incompeteney is not removed either by the Act of March 27th 1865, which provides that a party to the record, acting in a fiduciary or representative capacity, may be examined, or by the Act of the same date which enables any party to compel any adverse papty to testify in his behalf. These statutes are to be construed together, their intendment is to enable one party to call the opposite party to testify against his interest, and to make any uninterested fiduciary party a competent witness. They make no interested person a party competent to testify in his own favor. ,
    March 14th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Schuylkill county: Of January Term 1880. No. 161.
    Assumpsit, by Francis A. Mortimer, administrator of Hannah Guldin, deceased, against Benjamin H. Guldin and John S. Rick, administrators of William C. Guldin, deceased. The narr. was in the common counts.
    On the trial, before Walker A. L. J., the following material facts appeared: Hannah Guldin, a widow, died intestate, leaving to survive'her three children, William O. Guldin, Benjamin H. Guldin and Catherine S. Conrad. Letters of administration on her estate were granted to the plaintiff. William C. Guldin subsequently died, intestate, leaving to survive him a widow and a brother and a sister, the said Benjamin H. Guldin and Catharine S. Conrad. Letters of administration on his estate were .granted to the said Benjamin H. Guldin, and John S. Rick, defendants.
    The plaintiff sought to recover an alleged indebtedness due by William C. Guldin to his mother Hannah Guldin. The plaintiff called as a witness the defendant Benjamin H. Guldin and proposed to prove by him, inter alia, that William C. Guldin on the day before his death acknowledged to him that he owed his mother a certain indebtedness of $1600. The defendant’s counsel objected, on the ground, inter alia, that the witness is incompetent, because of interest; that he is entitled under the intestate law to one-third of Hannah Guldin’s estate, while he is entitled under the intestate law' only to one-fourth oí William C. Guldin’s estate. His interest therefore predominates in favor of the plaintiff. Objection overruled ; exception. The witness then testified to the acknowledgment by William O. Guldin of his indebtedness of $1600 to Hannah Guldin, as stated in the offer. There was no other testimony in support of the plaintiff’s claim, except that one witness testified that he was present at the time of the acknowledgment of the indebtedness by William O. to Benjamin H. Guldin, that the latter “ asked him whether he had some of his mother’s money, and he said he had. He did not mention the amount.” The only other person present was a physician who was dead at the time of the trial.
    The defendants requested the court to instruct the jury “ that under all the evidence in the case the defendants are entitled to a verdict.”
    Ans. We decline to instruct you so, but submit the case to you as a question of fact under the evidence given by the plaintiff.
    Verdict and judgment for the plaintiff for $3332.68. The defendants took this writ of error, assigning for error, inter alia, the admission by the court of the defendant Benjamin H. Guldin to testify on behalf of the plaintiff.

      James Ryon (D. B. Green and J. W. Ryon with him), for the plaintiff in error.
    Benjamin H.- Guldin, one of the defendants, was incompetent to testify on behalf of the plaintiff, because personally he was interested in the verdict going against him as administrator. Where a party is interested on both sides of the issue, it is only where the preponderance cannot be weighed by the court that he may testify. But here the preponderance was mathematically demonstrated. It is argued that he was admissible under the Act of March 27th 1885, permitting a party to compel any adverse party to testify. But that was only intended tó apply to an adverse party in fact as well as in name. Without his evidence the plaintiff had no case, and with it the defendant was swearing money into his own pocket, and he was therefore incompetent: Robinson v. Eldridge, 10 S. & R. 140; Ward v. Tyler, 2 P. F. Smith 393; Hogeboom’s Ex’r v. Gibbs, Sterrett & Co., 7 W. N. C. 399; Hess v. Gourley, Id. 159; Diehl v. Emig, 15 P. F. Smith 320; Taylor v. Kelly, 30 Id. 95; Karns v. Tanner, 16 Id. 297; Pattison v. Armstrong, 24 Id. 476; Gyger’s Appeal, Id. 48. The Act of 1869 has no application, as both plaintiff and defendants were administrators.

      F. G. Farquhar (Francis A. Mortimer, P. P., with him), for defendant in error.
    B. H. Guldin was a competent witness for the plaintiff, by virtue of the Act of March 27th 1865. As an “adverse party to the record,” he was within the very terms of the act. If the plea of interest were to exclude testimony offered under this act, then the act would be defeated in every case, because adverse parties are always interested in the subject of the suit. But it is settled that one who is interested in either event of a trial is a competent witness, and in "such case the court will not determine on which side is the preponderance of interest, but that will merely 'go to his credibility, and not to his competency: Brindle v. McIlvaine, 10 S. & R. 282; Potter v. Burd, 4 Watts 15; Finney’s Appeal, 9 P. F. Smith 398.
   Mr. Justice Trunkey

delivered the opinion of the court, March 28th 1881.

This action is by the administrator of Hannah Guldin, deceased, against the administrators of William C. Guldin, deceased. In the trial the Act of April 15th 1869, Pamph. L. 30, by its express terms had no application.

Two acts were passed on March 27th 1865, Pamph. L. 38, relating to witnesses and evidence. One was entitled “An act relating to the admission of parties to judicial proceedings as witnesses in certain cases,” and provided that in all trials and judicial proceedings an administrator or other person acting in a fiduciary or representative capacity, although a party to the proceeding, not having an interest in the subject-matter of the controversy, may be examined as a witness. Hence, in suits by or against administrators, when they are not interested otherwise than their right to compensation out of the estate for their services, they are as competent witnesses as strangers to the record and subject of controversy. The other is entitled “An act amending the law of evidence in Pennsylvania,” and enables any party to compel any adverse party or person for whose immediate and adverse benefit the action is prosecuted or defended to testify in his behalf. Obviously this applies'to a real party, and not to one who sues or is sued as the representative merely. These acts are to be construed together. Their titles are to be considered being a part thereof under the constitutional amendment of 1864. One applies to a party who is a representative, the other to a party in interest. Under the law of evidence, a necessary party to the record, because of his trust relation, could not be a witness in behalf of the beneficiary or trust estate, and the statute makes him competent. Any person not a party, although interested, could be called to testify against his interest, and the statute puts a party on the same footing. The intendment of these statutes is to enable one party to call the opposite party to testify against his interest, and to make any uninterested fiduciary party a competent witness in the cause. They make no interested person or party competent to testify in his own behalf

Is a person sued as administrator of an estate, who is directly interested in the plaintiff’s recovery, a competent witness for the plaintiff? A. sues B., and C-, being interested in A.’s recovery, is incompetent as a witness for A. Pending the suit B. dies, and O. takes out letters of administration and is substituted as party defendant. Nothing but: perversion of the statutes will enable A. to call O. to testify. And if the suit were not commenced until after B.’s death and O.’s appointment as administrator, he, continuing to be interested against the estate, would be as clearly incompetent for the plaintiff.

Hannah Guldin died intestate, leaving children, of whom were William O. Guldin and Benjamin H. Guldin. Afterwards, William C. died, leaving a widow, but no children. Benjamin II. Guldin, one of the administrators of William C., is interested in both estates represented in this action — he is entitled to a distributive share in half his brother’s personal estate and in the whole of his mother’s.

A witness whose interest is equal 'between the parties is competent. If it be doubtful whether it preponderates in favor of the party calling him, the court should permit him to testify, and instruct the jury if they found his interest in favor of the party calling him was greater than he had in favor of the other, they should reject his testimony: Rees v. Livingston, 5 Wright 113. Benjamin H. Guldin had a certain and preponderating interest in favor of the plaintiff, and he was incompetent to testify on that side: 1 Greenl. Evidence, sect. 391; Keymborg & Co. v. Burbridge & Co., 1 Jones 535.

The charge of the court was upon the evidence received, and no other question raised by the assignments requires notice.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Mercur

text:
    Lycoming Fire Insurance Company versus Rought.
    1. If a member of a mutual insurance company is in default in the payment of an assessment on his policy, after due notice according to the bylaws and rules of the company, the protecting power of the policy is suspended until the assessment is paid.
    2. A resolution by a board of directors of a mutual insurance company levying a certain percentage on the premium notes of all the members of said company, but without specifying the names of all said members and the precise sum required to be paid by each, constitutes a good and valid assessment upon each and every one of them.
    March 15th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas, of Wyoming county: Of January Term 1881, No. 87.
    Covenant, by Leonard Rought, Jr., against the Lycoming County Mutual Insurance Company, upon a policy of fire insurance. The defendant pleaded specially, inter alia, “ that by the contract of insurance entered into by plaintiff and defendant, the said plaintiff expressly promised and agreed to pay all premiums or assessments within thirty days after notice of the levy and demand for the same; that a levy and assessment had been duly and regularly levied and made, and due and legal notice thereof given to said plaintiff and demand for the amount of said levy and assessment for more than thirty days before said alleged damage or loss by fire, and the said plaintiff neglected and refused to pay the same; that it was expressly agreed that said policy should not be in force if said plaintiff neglected or refused to pay said assessments, and that said plaintiff was in default when said loss occurred,” &c.
    On the trial, before Ingham, P. J., the following facts appeared : On February 10th 1870, the Lycoming County Mutual Insurance Company issued to the plaintiff a policy of fire insurance on the mutual plan, insuring a tannery and contents, situate in Nicholson township, for $1266. In consideration thereof, the plaintiff gave his premium note for $316.50, which amount he thereby promised to pay “ in such proportion and at such time or times as the directors of said corporation may, agreeably to their act of incorporation, require.” He made a cash payment of $15.82 on the date of the note, and paid two assessments, Nos. 27 and 28, levied in September 1870, and in September 1871, respectively. The property was destroyed by fire on March 1st 1872. The company resisted payment on the ground that the plaintiff was in default, and his policy suspended, by reason of non-payment within thirty days after notice and demand of an additional assessment known as No. 29, made by the directors October 19th 1871. The plaintiff contended that this assessment was not lawfully made. The minute-book of the company showed, that at a meeting of the directors on the 19th October 1871, the following resolution was adopted:—
    “ Whereas, the losses by fire in Pennsylvania have been heavy within the last few months, and recently an extraordinary fire has occurred in the city of Chicago, involving a large amount of loss to the company, therefore resolved, that an assessment of twelve and a half per cent, be mad'e on all premium notes held by the company, and in force on the 10th day of October A. D. 1871.”
    On or about November 9th 1871, the following notice was served on the plaintiff:—
    “$39.56. Nicholson, Pa., November 9th 1871.
    “ Leonard Rought, Jr.
    “ You are hereby notified that an assessment, No. 29, dating from October 10th 1871, is due the Lycoming Fire Insurance Company, as authorized by the board of directors, amounting to $39.56, which you are required to pay within thirty days from the date of this notice, in accordance with the charter and by-laws of the company, in such case made and provided.
    “ For your information, the following by-law of the company is annexed: ‘ Whenever an assessment shall have been made upon the premium notes, and the same is not paid within thirty days after having been demanded by 'the company, through their agents or receivers, the policy of insurance given upon such notes shall be null and void, until the said assessment be paid, and the directors shall retain such premium notes and collect thereon such sum or sums so assessed.’
    Kellogg & Smith, Receivers.”
    The plaintiff failed to pay the said assessment No. 29.
    The plaintiff presented the following points:—
    1. That a demand upon the plaintiff to pay an alleged assessment and his failure to pay it within thirty days thereafter would not forfeit the policy unless an assessment had actually .been made on the premium note of the plaintiff, and there is no evidence in the case that such an assessment had been made.
    2. That a resolution to make an assessment is not the assessment itself.
    Ans. “ Roth of these points we affirm, and have already stated to you more at large in our charge.”
    The defendant presented, inter alia, the following points: — 2. The directors of the company, having acted in good faith and in accordance with their act of incorporation and by-laws in the making of assessment No. 29, and no evidence of gross mistake or fraud having been produced to impeach their action in making the same, the assessment must be considered valid in law and binding upon the assured.
    Ans. “There is no evidence which calls into question the good faith of the company. The court decline to say to the jury that the assessment must be considered valid in law and binding upon the assured.”
    In the general charge, the court said, inter alia:
    “ The defence to the plaintiff’s claim is that the plaintiff neglected to pay his assessment on his premium note for more than thirty days after demand, and that the loss occurred while such assessment remained unpaid. This would be a good defence if both facts alleged were established by the evidence — the demand for the payment of an assessment and neglect to pay it, was jjroven. But the fact of the assessment is not sufficiently established. The burden is upon the company of proving the assessment; it is an official act of the officers of the company, and the proof should be olear and satisfactory. The minute-book of the company has been given in evidence, showing that on the 19th of October 1871, a resolution was passed by the board of directors, as follows: * * *
    “ This is the first step in making an assessment, but the act is not complete until the officers designate the amounts to ho paid by each individual whose promissory note is held by the company. Such a statement is essential to the business of collecting; it is preliminary to the issuing of partial duplicates to the several collectors, and it is important to every stockholder in the company. [While perhaps the form of this record is immaterial, yet it cannot he an assessment if it does not set forth the name of the maker of the note and the amount assessed upon it. There is no evidence that such an assessment was made on the premium note of the plaintiff in this case, nor does the notice of an agent that such an assessment had been made supply the defect. Notice that something had been done, which had not been done, is a mere nullity.”]
    Verdict and judgment for the plaintiff for §1742. The defendant took this writ of error, assigning for error, inter alia, the answer to the defendant’s second point and the portion of the charge quoted in brackets.

      Jacob A. Hazen and William M. Piatt, for the plaintiff in in error.
    The judge was clearly wrong in his statement of the law that assessment No. 29 was not a legal assessment on the plaintiff, because his name and the precise sum assessed on him did not appear in the resolution levying it. The notice to the plaintiff supplied the necessary information, and the plaintiff, by failing to pay within thirty days, or before the fire took place, had no right to recover: Hummel’s Appeal, 28 P. F. Smith 320; Buckley v. Ins. Co., 2 Norris 303; Crawford County Ins. Co. v. Cochran, 7 Id. 230; Washington Ins. Co. v. Rosenberger, 3 Id. 373. In Hummel’s Appeal, supra, this court decided the validity of this very assessment No. 29.

      Sittser & Harding and Charles E. Terry, for the defendant in error.
    An assessment is not valid unless it names the party assessed and states the amount. In other words the company cannot assess a man’s premium note without saying so, any more than a county can tax an individual without assessing him by name: Catlin v. Smith, 2 S. & R. 267; Greenough v. Fulton Coal Co., 24 P. F. Smith 500, 501.
   Mr. Justice Mercur

delivered the opinion of the court May 2d 1881.

It is "well settled, if a member of a mutual insurance company is in default in the payment of an assessment on his policy, after due notice according to the by-laws and rules of the company, the protecting power of the policy is suspended until the assessment is paid. No recovery can be had for a loss sustained during the continuance of such default: Hummel Appeal, 28 P. F. Smith 320; Columbia Ins. Co. v. Buckley, 2 Norris 293; Washington Mutual Fire Ins. Co. v. Rosenberger, 3 Id. 373; Crawford County Mutual Ins. Co. v. Cochran, 7 Id. 230.

The main contention here is, whether the alleged assessment was actually made on the 19th of October 1871. It is known as assessment No. 29. The minute-book of the company duly proved, show's that a meeting of all the directors was held on that day, and the following preamble and resolution were adopted: “ Whereas the losses by fire in Pennsylvania have been very heavy within the last few months, and recently an extraordinary fire has occurred in the city of Chicago, involving a large amount of loss to the company, therefore Resolved, that an assessment of twelve and a half per cent, be made on all premium notes held by the company, and in force on the tenth day of October 1871.” The secretary of the company .testified that, in pursuance of that resolution, an assessment was made on all the premium notes, as directed by the board of directors. Among the others, an assessment.was made on the premium note of the defendant in error. H. A. Smith testified that he, as agent of the company, sent a notice of this assessment, No. 29, to the defendant in error about the first of December 1871. The learned judge thought there could be no assessment that did not set forth the name of the maker of the note, and the amount assessed upon it, and therefore charged there was no evidence that such assessment was made on the premium note of the defendant in error, nor did the notice of an agent, that such an assessment had been made, supply the defect.

In holding that an assessment could not be valid unless the resolution levying it set forth the name of the defendant in error, and the sum assessed on his note, there was error. We believe a reference to the maker of each note by name is unusual and wholly unnecessary. The resolution covered all notes in force at the date specified. It imposed a specific percentage on each. That is certain which may be made certain. It was very easy to ascertain the sum imposed on each note. The work was merely clerical, and could be readily performed by any person who understood the multiplication table. The precise sum he was required to pay was ascertained and stated in the notice sent to him. lie was therein required to pay the specific sum within thirty days, and also reminded of the by-law which declared the policy to be null and void unless so paid. It is true a notice of an assessment, when, in fact, none had been made, would not supply the defect. But that is not this case. The notice showed him the precise sum the percentage produced, and relieved him from making the calculation. Levying a specific percentage-on a note of a certain and fixed amount, is wholly unlike fixing a rate of taxation on land on which the valuation is not yet ascertained. Until the valuation of the land is determined, no computation can show the sum to be paid.

There is some force in the argument of the counsel for the defendant in error, that the record does not show clearly what portion of the deposition was received in evidence. There is, however, an assignment to meet each view of the case. If the part to which we have referred was rejected, it was error. If it was admitted, then it was error to charge there was no evidence of an assessment.

Much useless contention appears to have arisen on the trial, when the witnesses on the part of the plaintiff in error referred to the amount of the premium note. The amount of it was distinctly stated on the foot of the policy which tho defendant had already given in evidence. We think the evidence was amply sufficient to submit to the jury to find whether the assessment had been made. In so far as the objections covered by the assignments are in conflict with this opinion they are sustained.

Judgment reversed, and a venire facias de novo awarded.