text:
    Custar versus The Titusville Gas and Water Company.
    1. Where representations made by an agent to obtain subscriptions to stock of a corporation are a part of a scheme of fraud participated in by its officers; or where the representations are such as the agent may reasonably be presumed to have authority to make, they may be given in evidence to show the fraud by which the subscription was procured.
    2. Where there is no reasonable presumption of authority and no actual authority, the corporation will not be prejudiced by the acts of the agent.
    3. Where the representation of the agent is contrary to the interests and duty of the corporation, e. g., that he will release a subscription that he is taking, it is not a reasonable presumption that he has such authority.
    4. A subscriber on such terms would be particeps criminis, and held to all the responsibilities of a bond fide subscriber.
    5. A subscription to stock is a contract between the subscriber and the corporation, governed by the same rules of honesty and fairness as apply to ordinary contracts.
    6. An act of incorporation provided that delinquent subscribers “ should pay interest for delay at the rate of 5 per cent, per month,” &e. Held, that the 5 per cent, is a penalty.
    November 22d 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Crawford county: No. 145, to October and November Term 1869.
    This was an action of assumpsit to February Term 1867, by The Titusville Gas and Water Company, to the use of Stephen Parish, against George Custar, for the recovery of his subscription for 10 shares of the capital stock of the plaintiffs.
    The company was incorporated February 17th 1865, with a capital of $50,000, in shares of $50 each, with privilege to the directors to increase the same.
    Sect. 5 provided that if any subscriber should neglect to pay any instalment called for by the company at the time and place appointed and it shall remain unpaid for 30 days he shall in addition to the instalment pay interest for the delay at the rate of 5 per cent, per month, and the company may recover the said instalment and interest or forfeit the amount already paid as the directors may choose.
    The plaintiffs gave in evidence a subscription paper for stock of the company, signed October 30th 1865 by the defendant (amongst others) for “ Ten shares — $500.”
    They gave evidence that the first instalment was called January 22d 1866, for 10 per cent., payable immediately; the second payable May 5th for 10 per cent.; four other instalments, of 20 per cent, each, were called, payable respectively June 9th, July 14th, August 27th and September 25th 1866.
    The defendants offered to prove: by Joseph Barnsdall, “ That lie is a subscriber to the capital stock of the company of plaintiff for ten shares made before the subscription of the defendant; and that when he made his subscription the president of the company agreed with him that he should not be called on to pay said subscription, and thus to show a fraud on bonfi fide subscribers, to be followed by evidence of like agreements with other subscribers.”
    And by J. H. Broas, “ That he was induced to subscribe to the stock of the company by the declarations of the president and secretary, acting for the company, that the subscriptions made were bond, fide, and he was induced to change his subscription from six shares to twenty-six shares, on receiving from the president of the company a release in writing, from the payment of the twenty shares, and that he was a subscriber before the defendant, for the purpose of showing fictitious subscriptions that would be a fraud on the defendant.”
    Also “ that the subscriptions of many others of the subscribers were those of irresponsible persons.”
    These offers were all rejected, and several bills of exception sealed.
    The defendants gave in evidence the minutes of the company of August 11th 1865, showing that on that day 1000 shares— $50,000 — the authorized capital stock — had been subscribed; also, minutes of October 18th 1865, showing that the subscribers to the above 1000 shares of stock had transferred them to J. N. Angier and others; also, an act approyed Eebniary 17th 1865, repealing so much of the act of incorporation as provides for the payment of interest at 5 per cent, per month for delay in paying instalments.
    The plaintiffs, in rebuttal, gave in evidence their minutes of October 18th 1866, at which time it was resolved that the capital stock be raised to $75,000; also, resolved that J. N. Angier, &c., be requested to transfer back to the company the stock which “they obtained from the original stockholders.” The request was “acceded to by Messrs. Angier,” &c. It was also resolved that the secretary open a stock book and solicit subscriptions, &c.
    The defendant requested the court to charge the jury:—
    “ 1. That if they find that $50,000 of the capital stock of the Titusville Gas and Water Company was subscribed and taken before the date of the subscription of defendant, and that there had been no resolution by the board of directors increasing the same, prior to that date, the company had no stock for which the defendant could subscribe, and the plaintiff cannot recover in this action.
    “ 3. That the act of the 15th of April 1869, having repealed so much of the act of incorporation of the Titusville Gas and Water Company, approved the 17th day of February 1865, as allowed a penalty of five per cent, per month on subscriptions not paid, the plaintiff cannot recover the same, there being no law now in force authorizing the collection thereof.
    “ 4. The act of the 17th of February 1865, being a private act of legislation, the penalty imposed by its provisions for the non-payment of subscriptions cannot be enforced unless, the defendant is shown to have had actual notice thereof.”
    The court (Vincent, J.) charged:—
    “ The date of October 18th 1866, under which the transfer of stock to the company was made, and stock book as claimed opened, is so clearly a mistake, that we treat it as of the proper date, viz. October 18th 1865, for the very next entry is Nov. 14th 1865, and the next December 11th 1865, at which time the subscription to stock was reported, which includes that of the defendant in this suit.
    “The subscriptions then reported amounted to $57,600, of which $20,000 had been subscribed before defendant made his subscription. * * *
    “ The defendant subscribed for ten shares, or $500 worth of the stock of the company.
    “’The directors of the company called for his subscription at various times until the whole amount was called for — no part of the amount subscribed has been paid.” * * *
    “ Some time after the last call was made, this suit was brought to recover the said subscription, with the interest allowed by the act of incorporation.” * * *
    “We think the defendant is liable to the plaintiff for the amount of his subscription, if he had notice of the calls made by the company.
    “ But the defendant contends that even if the plaintiff is entitled to recover, he can recover only the amount of his subscription.and legal interest, or six per cent, per annum, and not five per cent, per month or' sixty per cent, per annum. The act of incorporation calls this five per cent! per month ‘ interest,’ and says, the delinquent subscriber shall pay it in addition to the instalment called for, if he fails to pay for a period of thirty days after the time fixed for payment, and authorizes the company to sue for and recover ‘said instalment and interest thereon,’ or if any money has been paid, to forfeit that, at its option.
    “ There is no provision for forfeiting or selling the shares as in most acts of incorporation. It is contended that this five per cent, per month is a penalty imposed upon the delinquent subscriber, and no part of the contract — that being a penalty it can only be collected by force of the statute authorizing it, and that inasmuch as by an act approved April 15th 1869, the legislature has repealed so much of the 5th section of the act of incorporation as allows the plaintiff to ‘ sue for and recover’ this five per cent, per month, the right to recover for that is gone.

      [“We are not without a doubt as to the amount of interest allowed by the act of incorporation, but we think the interest payable is as much part of the contract as the subscription itself, and that the company’s right to the interest was as much a vested one at the end of thirty days after the call, as the right to the instalment.]
    “If the right was thus vested, the legislature could not take it away, and for the purposes of this case we charge, that the right was so vested, and the plaintiff is entitled to recover both instalment and interest, subject to your opinion as to the fact of notice having been given as we have before stated.
    “We answer defendant’s points as follows:—
    ’“1. We cannot answer this as requested, because the minutes of the company show, that at the time the defendant made his subscription, all the stock taken August 11th 1865, had been revested in the company, and beside that $25,000 of new stock had been created, none of which had been subscribed, nor was it all subscribed when the defendant made his subscription.
    “3. We answer this in the negative.
    “4. We answer this in the negative. The act of incorporation was spread out in full upon the books of the company before subscriptions were made.”
    The verdict was for the plaintiffs for $1298.75.
    The defendant took a writ of error and assigned for error:—
    1, 2 and 3. The rejection of his three offers of evidence.
    4, 5 and 6. The answers to the points.
    7. The part of the charge in brackets.

      P. B. Guthrie W. R. Bole, for plaintiff in error. —
    The subscription of the defendant was obtained by fraudulént representations, and therefore void: Crossman v. Penrose Ferry Bridge Co., 2 Casey 69; Crawford Co. v. Pittsburg and Erie Railroad, 8 Id. 141; Mercer Co. v. same, 3 Id. 389; Kishacoquillas & C. Turnpike v. McConaby, 16 S. & R. 140; McConahy v. K. & C. Turnpike, 1 Penna. 426; McCully v. Pittsburg & Conn. Railroad, 8 Casey 25; Pittsb’g & Conn. Railroad v. Graham, 2 Grant 259; Stainbank v. Fernley, 9 Simons 556; Central P. Railroad Co. v. Clemens, 10 Mo. 359; Troy Railroad Co. v. Newton, 8 Gray 569; Smith v. The Red River Silver M. Co., 12 Jur., N. S. 616; Clark v. Dickson, 5 Jur., N. S. 1029. The 5 per cent, for delay of payment was a penalty which the legislature might repeal, and the repealing act would relieve from the penalty: Maryland v. Balt. & O. Railroad, 3 Howard 534; Stoever v. Immell, 1 Watts 258; Hatfield Road, 4 Yeates 392; Abbott v. Commonwealth, 8 Watts 517; Norris v. Crocker, 13 Howard 429; Yeaton v. United States, 5 Cranch 281; United States v. Morris, 10 Wheat. 246; Lewis v. Foster, 1 N. H. 61; Pope v. Lewis, 4 Alabama R. 489; Thompson v. Bussitt, 5 Inch 535; Eaton v. Graham, 11 Ill. 619; People v. Livingston, 6 Wendell 527. The legislature had power to pass the repealing act: Grim v. Weisenberg District, 7 P. F. Smith 433.

      J. B. Brawley and T>. Berriekson (with whom was W. S. Morris), for defendants in error. —
    No notice for payment of instalments was necessary: L. Ontario Railroad v. Mason, 16 New York 451; Shedd v. Brett, 1 Pick. 401; Smith v. Bank of Washington, 5 S. & R. 322. The law repealing the 5 per cent, was invalid as impairing a contract: Dartmouth College v. Woodward, 4 Wheat. 518; Brown v. Hummel, 6 Barr 86; Commonwealth v. Cullen, 1 Harris 138; Menges v. Dentler, 9 Casey 495. The 5 per cent. was not a penalty: 2 Bouvier’s L. Dict. 324; Bavington v. Pitts’g & S. Railroad, 10 Casey 358.
   The opinion of the court was delivered, January 3d 1870, by

Agnew, J. —

In Crossman v. Penrose Ferry Bridge Co., 2 Casey 69, it was said by Justice Knox that a subscription to capital stock, induced by the fraudulent representations or statements of an agent appointed to obtain subscriptions, may be avoided by the subscriber. And in Coil v. Pittsburg Female College, 4 Wright 439, it was held that representations by agents of the college, that enough had been and would be subscribed, before the subscriptions for scholarships would be collected, to pay off the entire indebtedness of the college, and make the scholarships worth the notes given for them, are to be treated as expressions of opinion only, no fraud being alleged; from which it might be inferred that fraud being alleged, the falsehood of the representations would invalidate the subscription. On the other hand, it was held in Bank of U. S. v. Dunn, 6 Peters 51; Bank of Metropolis v. Jones, 8 Peters 12, and Stewart v. Huntingdon Bank, 11 S. & R. 267, that the declarations and assurances of the officers of a bank, that an endorser or other party would incur no responsibility by his endorsement or signature, are unauthorized and not binding on the bank without authority from the directors. In Hackney v. Allegheny County Mutual Ins. Co., 4 Barr 185, it was decided that the false and unauthorized representations of an agent to receive applications for insurance and the premium for a mutual insurance company, whereby the assured became a member of the company, are not admissible as a defence to an action on the premium note; nor are the similar representations of the president to the agent at the time of his appointment. The representations there were that the company was not taking risks in Pittsburg or other large cities. As it turned out, the company was broken up by its numerous risks taken in Pittsburg before the great fire of 1845.

The law as to the acts of an agent of a corporation is thus stated in Angelí & Ames on Corporations, p. 249. “ The representations, declarations and admissions of the agent of a corporation stand on the same footing with those of an individual. To bind the principal they must be within the scope of the authority confided to the agent, and must accompany the act or contract which he is authorized to make.” The principle of the cases would seem to be this, that where representations made by an agent to obtain subscriptions, are a part of a scheme of fraud participated in by the officers authorized to manage its affairs; or where they are such as the agent may reasonably be presumed, by the subscriber, to have the authority of the corporation to make them, his representations may be given in evidence to show the fraud by means of which the subscription was procured. But when there is no reasonable presumption of authority, and no actual authority to make them, the corporation should not be prejudiced by the unauthorized acts of the agent. Hence, when the representation of the agent is contrary to the interests and duty of the corporation, as that be will release or has authority to release the subscription he is taking, it is not a reasonable presumption that he has such authority, and a subscriber on such terms would be particeps eriminis, and held to all the responsibilities of a bon& fide subscriber. This is the very point decided in Robinson v. The Railroad Co., 8 Casey 334. On the other hand, a subscription to be paid in blacksmith work, acquiesced in by the commissioner taking the subscription, was held to be recoverable only on this condition: McConahy v. Turnpike Co., 1 Penna. 426. Tested by these principles the first assignment of error cannot be supported. The offer was not to show a scheme of fraud on the part of the company to procure worthless subscriptions of stock in order to inveigle others; but it was merely to prove the ■agreement of the president that the subscriber should not be called on for payment of his subscription, as itself the evidence of fraud upon bond, fide subscribers. Offered in connection with the participation of the directors, the act of the president might be a link in the chain of fraud to be proved ; but, offered as itself the evidence of the fraud, it was not competent without showing or offering to show that the company, through its managing officers, were privy to the fraud. The president of himself had no authority to release subscriptions, and it would be unreasonable to suppose he had, as it was contrary to the interest and duty of the company.

But the second offer comes up more nearly to the line, and depends on the meaning to be attributed to the language of the offer. The offer was to show by a previous subscriber, for six shares, that he was induced by the president to change his subscription to twenty-six shares, on receiving from the president a release in writing from the payment of twenty shares, for the purpose of showing fraud by means of fictitious subscriptions. Whose release was meant ? The president’s or' the company’s ? If the former, it was unauthorized without proof of authority, and this offer went no farther than the first. If the company’s release, then it was a fraud on boná fide subscribers. It seems to us we must understand that it was the company’s release that was meant. Nothing less would exempt the subscriber from payment of the twenty shares, and make the stock “ fictitious ” in the language of the offer. We must take it, therefore, that the release of the company was the kind meant by the offer, and in that view the court below erred in rejecting the offer to prove the fraud of the company. A subscription to stock is a contract between the subscriber and the company, governed by the same rules of honesty and fairness in its enforcement, that apply to ordinary contracts: Railroad Co. v. Byers, 8 Casey 22; Railroad Co. v. Graham, 12 Casey 77.

We think there was error also in taking from the jury the decision of the fact whether the meeting of October 18th was in 1865 or 1866. The entry bore date in 1866, and if this was a mistake, it was for the jury to find it.

We are of opinion, also, that the interest of five per cent, a month on the subscription payable after a failure for thirty days to pay the calls is a penalty, and not merely interest, in the ordinary sense of the term. It is called interest in the act, but its obvious purpose, and the amount (being at the rate of sixty per cent, per annum) is for the enforcement of payment by way of a penalty. The act says as much as that the company may enforce payment either by forfeiture of the stock itself, or by a penalty of five per cent, a month for delay.

Judgment reversed, and a venire de novo awarded.


source: Caselaw Access Project

author: Read, J. —

license: Public Domain

text:
    Hart et al. versus Girard Borough.
    1. Hart was burgess of Girard borough and Wright was a councilman; in April 1863 the borough resolved to pay f>300 each for recruits under the call for July 1864: it was agreed that “each member should act as agent and hire a man if he could.” Hart and Wright procured seven recruits, but before they were mustered in the quota was filled; they then transferred the recruits to another district at a higher price. In a suit by Girard for the difference, the plaintiffs’point was: “The council were ex oifieio agents of the corporation, they may act as a body corporate, they may agree that each may represent the whole in any particular transaction, and if the council did so agree among themselves their authority was ample and both are bound by the transaction in putting the men in.” The court affirmed the point, “ provided that was a general authority for all drafts and not confined to the particular one.” Held to be correct.
    2. H^rt v. G'irard, 6 P. P. Smith 23, recognised.
    November 22d 1869.
    Before Thompson, C. J.,Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Mrie county: No. 157, to October and November Term 1869.
    This was an action on the case brought September 30th 1865, by the Borough of Girard against Leffert Hart and L. S. Wright to recover the difference between the amount paid' by the defendants for seven rebruits alleged to have been procured by them as agents of the borough and the amount received by them from another district to which they transferred the recruits. These recruits were for the call of July 18th 1864.
    The case has been previously considered in the Supreme Court and is reported in 6 P. E. Smith 23.
    Hart was the burgess and Wright was one of the council of the borough of Girard in 1864. On the 23d of April 1864 the council resolved to fill their quota for a draft impending at that time and “ it was agreed that each member was to act as agent and hire a man whenever he could * * * and to do so without calling the council together.”
    Thomas McClure, who was a member of the council, testified for the plaintiffs that at a meeting of the council in reference to raising recruits: * * * “I told them I was going away and they must attend to it, they said we must all attend to it; that I must look out in Buffalo and they would look out here; and we agreed to stand by each other in all acts in filling that quota, they agreeing to keep me posted as to what they did, and I them: I heard of the putting in of these men; we never had any conversation in regard to putting in these men, but I approved of it because I thought it was right; it was the understanding that we should fill the quota of the calls then made, but no further calls were provided for.”
    On the. 20th of July 1864, James Webster and Asa Battles were appointed agents to go to the South to procure recruits.

      On the 13th of August 1864, whilst their success was uncertain, the defendants procured seven men at $300 each. On the 6th of September information was received from Webster and Battles, that they had procured a sufficient number of men to fill the quota of the borough; the defendants then transferred the seven men to Girard township, receiving $500 for each of them.
    The plaintiffs claimed that the defendants acted as agents for the borough and were accountable to them for the increase of price; the defendants alleged that in procuring the men they acted for themselves and were entitled to any profit made in the transaction.
    Both parties gave evidence to maintain their respective positions. The evidence and facts above stated sufficiently exhibit the case.
    The plaintiffs’ third point was:—
    “ The burgess and town council of a borough are ex-officio agents of the corporation; that they may act as a body corporate, and they may agree that each may act for and represent the whole in any particular transaction, and if the town council did so agree among themselves with regard to the enlisting of men, as testified by Thomas McClure and others, their authority was ample, and both the borough and the defendants were bound by the transaction of the defendants in putting in the men.”
    The court answered this point in the affirmative, “provided that was a general authority, applicable to all drafts, and not confined to the particular one pending when the agreement was made.”
    The defendants’ 4th and 5th points were :—
    “ 4. The conversation had among the members of the council in the spring of 1864, referring specially to the calls that had then been made, could not be applied to the call subsequently made in July 1864, under which these men had been enlisted.
    “ 5. That if the defendants had any authority, by virtue of the conversation mentioned in the last point, and as testified to by Thomas McClure, to enlist men and pay them bounties, such authority was superseded by the appointment of Battles and Webster, by resolution of council, as special agents to go South and fill that quota.”
    The answers were:—
    “ The authority, if any, which the defendants had to enlist the men in question, was not derived from any conversation proved by McClure or any other witness, but from the authority conferred by the Act of Assembly of March 16th 1864, conferring power on boroughs to fill quotas, the resolution of the burgess and council to do it, and the general agency of said officers, by virtue of their office, to execute the decrees and discharge the duties of the borough under the supposed exigencies of the case. The conversations referred to are only evidence of how the defendants may have regarded their own act, or supposed it would be regarded by their associates. If they knew it would be approved by the other councilmen, it would furnish a strong motive for its performance as agents of the borough. Rut if they were not assured of its ratification or knew it would not be, it would furnish a strong reason for believing that they hired the men on their own responsibility, not earing whether the act was ratified or not. The conversation or agreement referred to, if proved to your satisfaction, tends to throw light on the motive or interest of the defendants.”
    The court further charged:—
    “ Unlike the case at the former trial of the cause, there is now some conflicting evidence as to the capacity in which the defendants acted when securing the enlistment of these men.

      “ It seems to me the fact of agency or no agency will have to be determined as a question of intention at the time, on the part of the defendants. The fact that they were, one the burgess and the other a councilman of the borough, is an important one in this-connection. There was no one else there to consult, no one but themselves from whom an appointment or authority as agents could be obtained. This fact does not seem to have attracted the attention of the Supreme Court in the review of the case.
    “ As such, they were the representatives, and, to a certain extent, the agents of the borough. It had already resolved, in its corporate capacity, to fill the quota. These men were but executing its behest. The mere appointment of two men to go South to look after recruits, was not a consummation of the purpose. It was but an effort towards it.
    “ How then are you to determine whether these defendants were agents or not ? Was it necessary to pass and record a resolution, as councilmen, appointing themselves agents of themselves to do this thing ? [It seems to me the only way to solve the problem of agency is to inquire and ascertain from the evidence what was their intention. How did they mean to be understood by others as acting ? Did they intend to have these men credited to the borough of Girard, and that the borough should pay them their price, or did they intend to pay the money themselves, without recourse on any one, and hold them, to be transferred at their pleasure when they could dispose of them to the best advantage? Did they intend to act as individuals or as agents and representatives of the corporation, in hiring these men ? • As was their intention, so was their character and capacity. If they were agents of the borough, acting in good faith for its interests, according to their best judgments, the corporation would be bound by their action, even though it had turned out that the men were not needed.”]
    The verdict was for the plaintiffs for $1757.

      The defendants took a writ of error, and assigned for error, amongst others, the answers to the above points and the part of the charge in brackets.

      Walker and Cutler, for plaintiffs in error,
    cited Cooper v. Lampeter, 8 Watts 125; Dull v. Ridgway, 9 Barr 272; Rogers v. Rogers, 7 Cowen 526; Hart v. Girard, supra; Pennsylvania Railroad v. Zebe, 9 Casey 323.

      S. JE¡. Woodruff, for defendant in error:
    Pottsville v. Norwegian Turnpike, Angell & Ames on Corp., § 294, 2 Hilliard on Torts 427; Story on Agency, §§ 336, 211, 214; Kimmel v. Stoner, 6 Harris 157; Brightly’s Eq., §§ 97, 98; 1 Parsons on Contracts 86, 141; Fisk v. Sarber, 6 W. & S. 21.
   The opinion of the court was delivered, July 7th 1870, by

Read, J. —

This case has already been before this court and is reported in 6 P. F. Smith 23. The error upon which the judgment was reversed, was that the question of agency was not submitted distinctly to the jury to be passed upon by them. “For this reason,” say the court, “and for this reason alone, the judgment must be reversed. There is no error in any other part of the record.”

In discussing the question of agency the first point was, were the alleged agents legally authorized to act for the borough authorities.

The third of the plaintiff’s points was in these words : “ That the burgess and town council of a borough are ex-officio agents of the corporation: that they may act as a body corporate, and they may agree that each may act for and represent the whole in any particular transaction, and if the town council did so agree among themselves with regard to the enlisting of men as testified by Thomas McClure and others, their authority was ample, and both the borough and the defendants were bound by the transaction in the putting in of the men.”

The court said: “ This is answered in the affirmative, provided that was a general authority applicable to all drafts, and not confined to the particular one pending when the agreement was made.”

The law as stated in this point and answer was affirmed by this court in substance in 6 P. F. Smith, and we see no reason to doubt its correctness.

Nor do we see any error in that part of the answer to the fourth and fifth points of the defendants’. “ The authority, if any, which the defendants had to enlist the men in question was not derived from any conversation proved by McClure or any other witness, but from the authority conferred by the Act of Assembly of March 16th 1864, conferring power on boroughs to fill quotas, the resolution of the burgess and council to do it, and the general agency of said officers by virtue .of their office to execute the decrees and discharge the duties of the borough under the supposed exigencies of the case.”

This language is explained by the succeeding part of the same answer: “ The conversations referred to are only evidence of how the defendants may have regarded their own acts or supposed it would be regarded by their associates. If they knew it would be approved by the other councilmen it would furnish a strong motive for its performance as agents of the borough. But if they were not assured of its ratification or knew it would not be, it would furnish a strong reason for believing that they hired the men on their own responsibility, not caring whether the act was ratified or not.”

Leffert Hart was burgess, and L. S. Wright one of the town council of the borough of Girard; a draft was impending, and there were seven men who were willing to volunteer for one year for a bounty of $300, and, being urged by several citizens, the said Hart and Wright on the 13th August 1864 engaged the men, arranged to pay them the stipulated sum and started with them to Erie, and had them regularly enlisted. There were separate recruiting papers for each man. The papers were made to “ Girard,” one to “ Girardtown” and the rest four or five to “ Girard Borough.”

On the 7th September 1864, the defendants sold these seven men for $3500 to Girard township and they were credited to it.

On the 20th July 1864 James Webster and Asa Battles were appointed recruiting agents to go South and procure volunteers to fill the quota of Girard borough, who on the 6th September telegraphed Hart from Vicksburg that they had succeeded in raising men enough to fill the quota, who were enlisted for three years, which men (seventeen in number) were afterwards duly and properly credited so that the quota of the borough was filled and three men to spare.

During the uncertainty as to success, in recruiting in the south, outside of our state, which continued during nearly seven weeks, these seven men were enlisted in Pennsylvania, and the question is, whether they were so enlisted by the defendants as the agents of the borough, or in their individual capacities.

The learned judge in his charge put this question to the jury in the following clear and pertinent language:—

“Now it is for you to determine from the evidence whether the defendants were the agents of the plaintiffs, and acted as such in the enlistment of these seven men, or whether it was done by them individually, and on their own personal responsibility.” The jury have decided this in favor of the plaintiffs by their verdict.

Judgment affirmed.

Thompson, C. J., dissented.


author: Agnew, J. —

text:
    Gilliland, Executor &c., of Hutchman versus Bredin.
    1. A legacy can be sued for in the Common Pleas by Act of February 24th . 1834, ? 50.
    2. The opening of a judgment will not be inquired into on a writ of error.
    3. It is only when a legacy is charged on real estate and the purpose is to enforce the charge that the jux-isdiction of the Orphans’ Court is exclusive.
    4. In opening a judgment by default the court has the right to prescribe terms.
    5. M. bequeathed to B. $100, “ if she shall continue under the direction of my husband J. till she comes of age.” She gave some other legacies, and then gave the whole residue to J., and appointed him executor; he took out letters testamentary, possessed himself of the whole estate and died leaving an executor. Held, that B. could not maintain a suit for her legacy against the executor of J.
    6. The legacy to B. was contingent, and she could not recover it without performing the condition.
    7. When the contingency is attached to the legacy, and not merely to the payment, the legacy itself is contingent.
    8. A legacy which does not vest until a condition be performed, is not affected by the want of a bequest over.
    9. If such legacy does not vest it goes into the residue.
    November 23d 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lawrence county: No. 77, to October and November Term 1869.
    This was an action of debt commenced, August 2d 1860, by Maria Bredin against Robert Gilliland and Joseph Morrison, executors, &c., of Josiah Hutchman, deceased. The action was for a legacy under the will of Margaret A. Hutchman, the wife of Josiah Hutchman, the above-named decedent. The will of Mrs. Hutchman was dated April 2d 1849, and directed amongst other things as follows:—

      “ It is my will that if Esther Maria Bredin shall continue under the direction of my husband, Josiah Hutchman, until she arrives at the age of twenty-one years, she shall receive the sum of one hundred dollars.” * * * “ The whole residue of all my estate of every kind or description, I will and bequeath to my well beloved husband, Josiah Hutchman, and I hereby constitute and appoint him the sole executor of'this my last will and testament, &c.”
    Esther Maria Bredin is the plaintiff in this suit.
    On the 7th of June 1861, on motion of the plaintiff’s attorney, the court directed judgment for the plaintiff for default of appearance, the prothonotary to liquidate the damages; they were assessed June 22d, at $210.66.
    On the 10th of January 1865 the court granted a rule to show cause why the judgment should not be opened, which on the 28th of June 1867 was made absolute, “ the plaintiff to file a declaration ■within ten days — the defendant to plead, and put the case to issue within five days thereafter. The ease now directed to be put down for trial at September term , next and to be tried without delay or continuance. The lien of the judgment to continue and no objection to be taken to the form of action or jurisdiction of the court.”
    The plaintiff declared in debt against Gilliland as executor of Hutchman’s will, for the legacy under Mrs. Hutchman’s will. The defendant, amongst other pleas, pleaded “ nil debet, payment and payment with leave, &c.”
    He pleaded also that the plaintiff did not continue under the direction of Plutchman till she came of age, &c.; also that Hutchman had only the estate of Mrs. Hutchman in his hands as her executor, and never became liable to pay her legacy, &c.; also, that the declaration was “ against an executor of an executor.”
    He demurred also for the same reason as the last plea.
    One of the plaintiff’s replications was: — ■

      “ That she did remain under the direction of the said Josiah Hutchman so far as in her power, that when she was but about seventeen years of age said Josiah Plutchman was taken sick and on some time prior to his death he did not assume the direction or control of said plaintiff — that he, the said Josiah Hutchman, had left his home for medical treatment and remained away from home a long time; that when said plaintiff was between eighteen and nineteen years of age he, the said Josiah Plutchman, died, making it altogether impossible for said plaintiff to remain under his direction until she was twenty-one years of age. That her parents, both father and mother, were living, and by the laws óf God and man her guardians and to whom she owed obedience, all of which the said Mrs. Hutchman well knew at the time she made her will.”
    She also replied that Hutchman was residuary legatee as well as executor and took possession of all the decedent’s estate; that he never filed an inventory or settled an account.
    On the trial before McGoffin, P. J., it appeared that letters testamentary were granted to Hutchman, the executor, who took possession of all the estate, but never filed an inventory. Hutch-man afterwards married a second time. There was evidence that the plaintiff in 1854, when she was about eighteen years of age and after the second marriage of Mr. Hutchman, left his residence during his absence from home; stating that she left because she she was going to be married, and because she and Mrs. Hutch-man did not agree.
    The defendant requested the court to instruct the jury :—
    1. That the plaintiff cannot recover against the executor on the first count in the declaration because therein she claims to charge him as the executor of an executor.

      4. That if she (plaintiff) did not comply with and perform the condition of the will, she is not entitled to the legacy, and cannot recover on the first count in the declaration.
    5. That by the plaintiff’s replication she has driven herself into the Orphans’ Court for her remedy, if she has any, and cannot recover in this Court of Common Pleas.
    The court answered:—
    “ 1. The answer to this depends on the fact as to whether Mr. Hutchman in his lifetime, or Mr. Gilliland as his executor, appropriated the estate to their own use or the use of the estate of Mr. Hutchman. In that case it would become an ordinary debt of Hutchman, and his executor would have to account for it as any other debt, Mr. Gilliland not being held as trustee himself in any way. This has reference to the legacy bequeathed by Mrs. Hutchman.
    “ 4. We answer this point in the negative, and we hold and so instruct you that inasmuch as this is a devise of personal property and the non-performance of the condition would not defeat the vesting of the right to recover, inasmuch as there is no limitation over, nor under its provisions does it pass into the devise of the residue of the estate — there being no provision that it shall so become a part thereof.
    “ 5. This point we pro forma answer in the negative, and instruct you that the plaintiff need not originate her proceedings in the Orphans’ Court, reserving the question for decision hereafter, as to whether the remedy is in the Orphans’ Court.”
    The jury found for the plaintiff for $337.08.
    The court afterwards entered judgment on the verdict on the reserved point.
    The defendant took out a writ of error' and assigned for error, that the court erred :
    In opening the judgment on the terms that the defendant should take no objection to the jurisdiction or form of action; in deciding that the defendant had waived objecting by accepting the terms and going to trial; in the answers to the points and entering judgment on the reserved question.

      I). Craig f R. Gilliland, for plaintiff in error. —
    The suit cannot be maintained as being against the executor of an executor: Act of March 15th 1832, § 19, Pamph. L. 136, Purd. 275, pl. 16; Waterman v. Ellis, 4 Casey 264; Field’s Appeal, 12 Id. 11, The legacy did not become a debt of Hutchman: Gallagher’s Appeal, 12 Wright 121; Becker v. Kehr, 13 Id. 223. The condition was not in terrorem: Cornell v. Lovett, 11 Casey 100; Conard’s Appeal, 9 Id. 47; Ashford v. Ewing, 1 Id. 213. The legatee’s remedy was in the Orphans’ Court: Shollenberger’s Appeal, 9 Harris 342; McKee v. Sandford, 1 Casey 105; Mills v. Commonwealth, 1 Harris 630. Want of jurisdiction may be taken advantage of at any stage of the cause: Black v. Black, 10 Casey 354.

      J. McMichael $ R. B. McComb, for defendant in error: —
    The court had no power to open a judgment that had been standing for nearly four years: Commonwealth v. Mayloy, 7 P. F. Smith 291; Mathers v. Patterson, 9 Casey 485; Stevens v. Cowan, 6 Watts 511; Catlin v. Robinson, 2 Id. 373; Huston v. Mitchell, 14 S. & R. 307.
    Mr. Hutchman took into his own hands and converted to his own use all the estate of his first wife. This made his executors liable in debt for the legacies: Clark v. Herring, 5 Binn. 33; Doebler v. Snavely, 5 Watts 225; Waterman v. Ellis, 4 Casey 264.
    The condition contained in the bequest of Margaret A. flutchman must be held as in terrorem and cannot defeat the legacy; 1 Story, Eq. Jur. Pru., §§ 287, 289, 290; Hoopes v. Dundas, 10 Barr 75.
   The opinion of the court was delivered, January 3d 1870, by

Agnew, J. —

That a legacy can be sued for in the Common Pleas, is a matter of express legislation. Act 24th February 1834, § 50. The mode of proceeding is regulated by the six sections following: On a plea of want of assets, the case goes into the Orphans’ Court, for an account, the action of the Common Pleas being, meanwhile, suspended. It is only when the legacy is charged on real estate, and the purpose is to enforce the charge, the jurisdiction of the Orphans’ Court is exclusive. The opening of the judgment will not be inquired into upon this writ of error. It may be remarked, however, that the judgment was by default, and not on trial and verdict. The plaintiff in error cannot complain of the terms on which the judgment was opened. The Court of Common Pleas having jurisdiction for the recovery of legacies, there was no apparent want of jurisdiction in the record. It did not appear that the plaintiff sought to charge real estate. The court was, therefore, not precluded from prescribing terms.

But there are two grounds fatal to the plaintiff’s right of recovery. First. The executor of an executor cannot be sued for a legacy under the will of the first testator: Act 15th of March 1832, § 19, Purdon 275, pl. 16. After this came the 31st section of the Act of 24th February 1834, Purdon 287, pl. 95, vesting in the administrator, de bonis non, the power to recover the assets from any predecessors in the administration of the estate. Many decisions under this section maintained that no action for • assets can be brought, except by the administrator, de bonis non, with or without the will annexed, as the case may be: 9 Watts 479; 7 Barr 315; 6 Harris 313; 7 Harris 201; 11 Harris 164; 4 Casey 264.

The second objection to recovery is, that the legacy under Mrs. Hutchman’s will was contingent — depending on a condition precedent, before it could vést. The clause in her will reads thus: “ It is my will that if Esther Maria Bredin shall continue under the direction of my husband, Josiah Hutchman, until she arrives at the age of twenty-one years, she shall receive the sum of $100.” The condition was inseparably connected with the gift of the legacy, and not merely its payment. The right to it depends upon living out the prescribed time, under the direction of the husband. The legatee was a mere dependant, and the testatrix may have had good reasons for the condition. The interests of her husband may have been the consideration of the bequest, or it might be the interests of the legatee, to preserve her in a course of good conduct. There are numerous authorities, that where the contingency is attached to the legacy itself, and not merely its payment, the legacy itself is contingent: Lamb v. Lamb, 8 Watts 184; Moore v. Smith, 9 Watts 403; Seibert’s Appeal, 1 Harris 503. The legacy not vesting until the condition had been performed, the want of a bequest over makes no difference. It becomes merged in the residue, if it never vests.

Judgment reversed, and a venire facias de novo awarded.


text:
    Rynd versus Rynd Farm Oil Company.
    1. Rynd agreed with Watson for the exclusive right of digging for oil, &c., on a farm, Rynd to have one-fourth, and in case, after a reasonable experiment, Watson should be satisfied that oil, &c., could not be found in quantities profitable to both parties the lease to determine and the possession to revert to Rynd;-Watson not to interfere with Rynd's farming; “should oil, &e., be found in profitable quantities this is a perpetual lease.” On part of the land the boring, &c., had been profitable; Rynd alleging the working had not been profitable on another part, brought ejectment for that. Held, that ejectment would not lie to test Rynd's right to bore for oil, &c.
    2. Ejectment under the agreement would lie if Watson had occupied the land for other purposes, or to an extent greater than allowed by the contract, or if the license was revocable or had been forfeited by Watson.
    3. When the license was entered upon and made effectual by Watson's performance of the covenants and a successful result of the experiment, it became perpetual and irrevocable.
    4. Whether the license was exclusive, not decided.
    November 23d 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Venango county: No. 155, to October and November Term 1869..
    This was an action of ejectment, commenced April 15th 1868, by John Rynd against the Rynd Farm Oil Company, for about 114 acres of land.
    The land in controversy was that part of a tract of 328 acres, lying on the west side of Oil creek. The whole tract belonged to the plaintiff on the 19th day of January 1860. On that day this agreement was made : “ Articles, &c., between John Rynd of, &c., of the one part, and Jonathan Watson and Jacob I). Angier of, &c., of- the second part, Witnesseth, That the said party of the first part, for and on account of the covenants and agreements hereinafter mentioned, doth covenant and agree, that they, the said parties of the second part, their heirs and assigns, shall have the exclusive right and privilege of digging, boring, or otherwise operating, for salt and oil on the farm and land owned and occupied by the party of the first part, situate in the township of Cornplanter, county of Yenango, bounded as follows, &c., containing about 328 acres, more or íess, together with the right of obtaining by pumping, or in any other planner collecting said salt-water and oil, and manufacturing salt, refining or otherwise preparing oil for use and the market, with the full and unobstructed right of way to and from all the springs, wells, and other works they may dig, bore or construct, or cause or procure to be dug, bored, erected, constructed or builded on said premises, with the privilege of erecting such buildings and apparatus as may be necessary or convenient for the purpose aforesaid. And the said party of the second part, for themselves, covenant and agree to and with the said party of the first part, that they, the said party of the second part, bore or dig one or more wells, not less than two hundred feet deep, if necessary to obtain salt or oil from the same to the best advantage, working with proper skill and energy for the interests of both parties, and give to the party of the first part the one-fourth part of all the oil obtained on or out of said premises; and should said second party think proper to engage in the manufacture of salt from any salt water they may find on said land, then they are to give said first party one-twelfth part of said salt so manufactured, said first party to be at no expense whatever, and to receive his share of the oil and salt at the mouth of wells and salt works on the first secular days in each month after oil in profitable quantities shall be found and salt manufactured. And should other valuable minerals be found in boring, digging or operating on said premises for oil and salt, the said party of the first part shall receive at the pit’s mouth the one-fourth part thereof, to be delivered monthly, in like manner as the oil and salt are delivered, if the business of mining and operating for the said minerals should be found profitable for both parties. The said work of boring, &c., as above stated, to be commenced by the party of the second part within one year from the 1st day of September 1859, and be prosecuted with reasonable diligence and energy until oil and salt be found, or further search be- deemed unprofitable and unnecessary; and in the case the said second' party, after a fair and reasonable experiment and search, be satisfied that oil and salt, or either, cannot be found in suflicient quantities to be profitable to both parties, this lease shall be determined and ended, and the entire possession, with all the improvements made thereon by said second party, &c., shall revert to said first party, &c.; and should the said second party occupy any considerable portion of the improved land of said first party, with the works, buildings and apparatus which they may dig, bore, build, erect or construct, to the damage of the said first party, the said second party shall pay to the said first party a reasonable rent or compensation therefor. The said first party expressly reserves so much of said land as lies, &c., * * and should this lease be determined as hereinbefore mentioned, and the possession and improvements revert, it is understood that the said second party may.'remove their machinery, engines, pumps, &c.; and should oil and salt, or either, be found in profitable quantities, this is a perpetual lease for all the purposes therein mentioned : and further, said first party expressly covenants and agrees that he has not sold or leased any part of the premises herein demised, since the 1st day of September 1859; and it is further understood that the said second party are not to interfere with the farming operations of said first party any more than may be necessary and proper to guaranty the said second party the full enjoyment of the premises for the purposes mentioned in this agreement.”
    The following supplemental agreement was made July 2d 1861:
    “I hereby declare and agree that the above-named lessees, &c., shall and may have the right to assign or sub-let the rights and privileges therein and thereby granted to them as to fractional parts of the premises in the above lease or article, to which I add this as a supplement: and further, I, the said John Rynd, &c., do also agree to take my share of the oil and furnish barrels for the same, so as not to impede or hinder the operations or work of the said second party, their heirs and assigns, whenever it may he necessary, on account of room or otherwise desirable, to sell or send away, or put up for market, and any damages for the use of improved land, so far as the parts sub-leased, shall be from this date dispensed with, as the supposed increase of oil, by reason of sub-leasing, will amply compensate for that. It being understood that the said Watson and Angier, &c., are to go on and have the premises heretofore leased surveyed into such sized lots as they may deem proper, and to sub-lease the same to the best advantage, and to have the same worked to the best advantage, either to success or abandonment, and to have -the map or plat of said survey made, and to furnish the said Rynd a copy, free of charge.”
    The agreement was under seal, and signed by both parties.
    The defendants derive their title from the above lessees.

      On the trial before Trunkey, P. J., Watson testified for defendants that they had commenced operations on the east side, and had taken others into partnership with them ; the operations had been successful; the wells on the west side had not been productive ; they yielded a little; the failure to get oil there was not conclusive that there was no oil there ; they had ceased working on it.
    By another witness it was testified that up to 1865, seventeen wells had been sunk on the west side; one was sunk in 1866; the engine had been recently taken away; all the wells were tested; the machinery was moved away from all the wells that did not produce.
    The plaintiff, in rebuttal, gave evidence tending to show that the defendants had put buildings, &c., on the land not necessary for carrying on their mining business; they also gave evidence of the failure and abandonment of the wells on the west side and the removal of the machinery; of sub-lettings; the rates of the leasing, &c.
    The plaintiff’s claim for the 114 acres, was on the ground that it was not occupied by the defendants and was not necessary to work the wells which were yielding oil.
    The plaintiff’s 1st and 3d points were:—
    1. The agreement of 19th January 1860, gave-a license to Watson and Angier to take salt and oil from his lands, and was revocable by Rynd at any time.
    3. The agreement of 2d July 1861, gave only a license to Watson and Angier to confer the same privilege they had upon third persons, for the benefit of Rynd, and was Revocable by him at any time.
    These points the court (Trunkey, P. J.) denied, and further said in his charge:—
    * * “ In very words, Watson and Angier, their heirs and assigns, shall have perpetually the exclusive right of boring and operating for oil and salt on the whole farm, except the part reserved by defined bounds, and may assign and sub-let their right as to fractional parts of the premises; they, their heirs and assigns, may use all the surface necessary and convenient for their full enjoyment and operations under the grant, and not to interfere further with the Owner of the land for farming purposes. The consideration for this grant is the covenant already stated on the part of Watson and Angier. They are bound, amongst other things, to commence work by a certain date, to work with skill and energy for the interest of both parties, to deliver a certain portion of the oil or salt to Rynd at certain times, to survey and divide the premises into lots, sub-lease and have them worked to the best advantage. [With such grant, upon such consideration, it would seem that the parties had made the right of the grantees to take the oil and salt exclusive of the grantor, as well as other persons. The important right to divide and sub-let is not consistent with the claim that Rynd retained the right to .take oil and salt in common with the grantees.] This right .was given after he had ample time for reflection and observation of the manner in which the grantees were performing their covenant in the first article. The exclusive right to take oil from the land, and to divide and grant small lots in severalty for oil operations, would be essentially interfered with in case the grantor would go on when and where he pleased to operate for oil.

      “ [If oil is discovered in paying quantities, and of this no question is made, the grant is perpetual, not of a part, but of the whole, Rynd and those under him reserving the fee simple estate, with right to occupancy of the soil, when the same is not necessary and convenient for the object contemplated by the lease. The article makes no provision for a return of the land in parts, as to oil rights, when oil is not found thereon. It does not provide for forfeiture of the rights granted in whole or in part in case of breach of covenants. The grant and reservations, covenants and restrictions, are similar to those in case of Funk v. Haldeman, 8 P. F. Smith 229. The similitude is such that I do not hesitate to conclude, on the authority of this case, that Rynd granted to Watson and Angier in fee simple, an incorporeal hereditament, made divisible by the terms of the grant, by the parties made exclusive in the grants within the designated lines; that whatever rights are reserved to Rynd for agricultural and other purposes, within the lines, he has no right to take oil or salt therein, and can have none until the grantees and those claiming under them have forfeited their rights by breaches of the covenant.]”

      “ This action is to cover that part of the tract lying on the west side of Oil creek. It is unnecessary to inquire why it is not for the whole tract, or for all of it not actually operated upon for oil purposes. Whether or not the entire eastern side is operated upon we are not advised, nor is it material. The defence is rested on the same ground as if the action were for the whole instead of a part. The plaintiff may recover this part if the defence is not good. The plaintiff claims a verdict for the land not actually occupied by producing oil-wells, being all except about two acres on the west side of the creek. Rynd has the right of possession and enjoyment of the surface for all purposes, save of so much as may he necessary and convenient for the object of the grant. If oil has been found in profitable quantities, and the granted rights have not been forfeited, the grantees, or the defendants holding under them, have a right of possession to all the surface necessary and convenient for the object given them. Should the evidence satisfy you that the defendants have taken and occupied the land for other purposes than the right given, and that they have ex-eluded Rynd from possession of the surface when it is not required for oil operations, preventing him from enjoying the right of which he had not divested himself, then he ought to recover the premises wrongfully taken from him. But if there is not evidence to show that the defendants have taken and held the land to any greater extent than required for their oil operations, and have not otherwise interfered with Rynd’s enjoyment of the premises, he cannot recover for this reason : Each party has certain rights, and when one has not wrongfully interfered with the other’s premises, there can be ho recovery.
    “Did the defendants, or Watson and Angier, within the time mentioned in the agreement, make search and find oil in profitable quantities ? Have they expended large sums of money in sinking wells? Have they prosecuted the work of obtaining oil with reasonable diligence, obtaining large quantities, averaging some 25,000 or 30,000 barrels annually ? If you find they did all this, then although they may have failed to perform the covenant to the full extent, their rights are not forfeited. Forfeitures at law, as well as in equity, are odious. They may be answerable for non-payment of rent for use of improved land, for not making the survey, for not working with greater diligence; but if they have performed their covenants to the extent stated, the grant is not forfeited. It is not a question here how much damage could be recovered in an action of covenant, or whether Rynd contracted with as much or greater wisdom as others who have leased their lands. There is no allegation that the grant was obtained by fraud or imposition, and the defence is not available that he might have had more favorable covenants. You will observe that your attention has been directed to some facts, while there has been little question made as to them. They are for you to pass upon, and under the instructions given, as you find the facts, your verdict will be for the plaintiff or defendant.”
    The verdict was for the defendants. The plaintiff removed the case to the Supreme Court, and there assigned for error the answers to his 1st and 3d points, and the portions of the charge in brackets.

      F. Oowan and II. D. Foster (with whom was J. D. Hancock), for plaintiff in error. —
    The grant is exclusive and indivisible: Funk v. Haldeman, 3 P. F. Smith 229; Dark v. Johnson, 5 Id. 164; Grubb v. Bayard, 2 Wallace 81; Bainbridge on Mines, &c., 246; Coke Litt. 122; Hargrave’s note; Caldwell v. Fulton, 7 Casey 480; Lord Mountjoy’s case, Godbolt 24; s. c. Anderson 307; Johnstown Iron Co. v. Cambria Iron Co., 8 Casey 246; Chetham v. Williamson, 4 East 469; Clement v. Youngman, 4 Wright 344. If Rynd had revoked the' license before the entry of the licensees they could not have maintained a bill in equity; their covenants want mutuality : Bodine v. Glading, 9 Harris 50; Vincent v. Huff, 4 S. & R. 302; McNair v. Compton, 11 Casey 23.

      J. B. Brawley and J>. Berrichson, for defendant in error,
    cited Funk v. Haldeman, Lord Mountjoy’s case, supra; Douglass v. Kindall, Yelverton 187; Hoskins v. Robins, 2 Saunders 327; Potter v. North, 1 Id. 352.
   The opinion of the court was delivered, January 3d 1870, by

Agnew, J. —

The most difficult and important question argued in this case is, whether the license to Watson and Angier, to operate for oil, is entirely exclusive of Rynd the owner of the land. But this does not arise in the form of action adopted by the plaintiff. The action is ejectment and relates to the possession only of the land. Assuming that the defendants had taken possession and occupied the premises for other purposes; or to an extent greater than that provided in the contract; or that the license was revocable by Rynd; or had been forfeited by the defendants, the form of action would be a suitable remedy. But the right of Rynd to bore for and take oil from the land cannot be tested in this form of action. Should he attempt to exercise this right, a conflict would arise with the defendants, claiming a right exclusive of Rynd, who might test his claim by an action for a breach of the contract, or possibly by a bill in equity; but the exclusiveness of their right is not a question in this action.

The court below in clear and explicit language left to the jury the fact whether a possession had been taken by the defendants to a greater extent than was necessary for their oil operation; or so as to interfere with the possession reserved by Rynd to himself. The fact has been found by the jury against the plaintiff, and this leaves only the questions of revocation and forfeiture. We agree with the learned judge, and the authorities cited by the defendants as plaintiffs in error show, that this license, when entered upon and made effectual by the performance of the covenants of the defendants, and a successful result according to the terms of the agreement, is perpetual and irrevocable. We think he also fairly submitted the question of forfeiture with proper instructions, in terms consistent with the provisions of the agreement. That fact being determined against the plaintiff, nothing remains but to affirm the judgment, leaving o.ut of view the question of the exclusiveness of the license. This point not fairly arising in the case, it would be improper to state an opinion, which would not be binding as a decision in a future controversy. It admits of argument, and may not be ruled by Funk v. Haldeman, 3 P. F. Smith 243, but we forbear to express an opinion.

Judgment affirmed.


author: RsAd, J. —

text:
    The National Newark Banking Company versus The Second National Bank of Erie.
    Judson, -who resided in Newark, N. J., -purchased, on Saturday the 17th of March, in Erie, Pa., from a bank in Erie, a draft on Culver, New York. On the 19th he left Erie for home, stopping at a number of places on his business, which was a travelling agent, arriving at Newark on the 26th, he sold the draft on the 27th to the Newark Bank, they presented it-on the 28th, payment was refused and it was protested. In a suit by the Newark Bank against the Erie Bank, Held, that under the circumstances the bill -was presented within a reasonable time.
    November 24th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Erie county: No. 185, to October and November Term 1869.
    This was an amicable action of assumpsit, commenced May 15th 1866, between The National Newark Banking Company, plaintiffs, and The Second National Bank of Erie, defendants.
    The suit was on the following draft:—
    “Second National Bank on Erie,
    Erie, Pa., March 17th 1866.
    Pay to the order of A. Judson, Esq., three hundred dollars.
    Wm. 0. Curry,
    Cashier.
    To Culver, Penn & Co., New York.
    The draft was afterwards endorsed by Judson, who sold it to the plaintiffs on the 27th of March; it was presented for payment on the 28th of March, payment was refused and the draft was duly protested. The facts of the case are stated fully and in detail by Mr. Justice Read in delivering the opinion of the Supreme Court.
    The court below (Derrickson, J.), after referring to the facts, charged:—
    “ I am not aware at this moment of any decision which defines the time within which a bill must be presented, but all the authorities say it must be within a reasonable one. What this will be in any one given case, would very seldom, if ever, answer for another, because the circumstances attendant on each are so varied and different, and in most cases it would be a question of fact for the jury to pass upon, and it would be so now, were there any disputed facts arising out of the testimony, which there are not. Admitting, then, what the witness testifies to be true,' we think it affords no excuse for the delay, which we also think was unreasonable. That the Newark Bank itself is free from the charge we readily admit, but not from that of its endorser, for the time which had elapsed was patent on the face of the bill. What is thus said will answer the several points made by the counsel of the plaintiffs.”
    The verdict was for the defendants.
    The plaintiffs took a writ of error, assigning the charge for error.

      Ourtis, Spencer Marvin, for the plaintiffs in error. —
    The question as to unreasonable delay was for the jury. The delay was not unreasonable: Robinson v. Ames, 20 Johns. 146; Aymer v. Beers, 7 Cowen 713; Muilman v. D’Eguino, 2 H. Black. 565; 1 Bouvier’s Inst. 469.

      J. 0. Marshall and D. Derrickson, for defendants in error.
   The opinion of the court was delivered, January 3d 1870, by

RsAd, J. —

The court assuming that there were no disputed facts in this case, undertook to decide the question whether the presentment of the bill or draft which was the subject of this suit was made to the drawees in New York within a reasonable time. Their decision was that the time taken was unreasonable, and that the defendants were not liable to pay the amount of their draft. 0

A. Judson, who was acting as the agent of T. H. Hubbard in the collection of money claimed by him, by way of damages, from different persons for the unlawful use or infringement of a photographic patent, on Saturday, 17th March 1866, purchased the following draft from the defendants:—

' “ SsboND National Bank of Erie.
Erie, Pa., March 17th 1866.
Pay to the order of A. Judson, Esq., three hundred dollars.
(Signed) Wm. C. Curry,
Cashier.
To Culver, Penn & Co., New York.”

Mr. Judson was a resident of Newark, New Jersey, and his business took him through the oil region. He stayed at Erie over Sunday and on Monday the 19th of March left Erie and travelled as far as Oil City that day, stopping at Meadville and Franklin on his way;-he stopped "at Oil City on Monday night, and on Tuesday morning, the 20th, left for Pithole, and reaching that place Tuesday evening, stayed there Tuesday night; on "Wednesday he went to Titusville, where he stayed Wednesday; on Thursday he went to Corry and stayed there Thursday night; on Friday the 23d of March he left Corry and travelled continually night and day, until he arrived at Newark, his place of residence, on Sunday, March 25th. Until he reached Corry he travelled partly by cars and partly by stage, making collections ■on his route at different places where he stopped. On Monday the 26th of March he remained at home very much fatigued and overcome by the journey. On Tuesday the 27th of March he transferred the hill to the plaintiffs, receiving from them in money the full face of the bill. It was sent by them, by mail to their correspondent, the Merchants’ National Bank of New York, and was on the 28th of March presented by them for payment to the drawees, and payment refused, they having failed the day before.

There is no allegation that the plaintiffs, so far as regards themselves, did not present the draft in due time, but it is alleged that the delay on the part of Judson was unreasonable, and so the court held.

The bill was drawn at Erie in the state of Pennsylvania, at the extreme western end of it, upon persons in the city of New York, and sold to a travelling agent whose residence was in Newark in the state of New Jersey. As all bank-notes in the present day are at par everywhere, the object in purchasing a draft was to prevent loss by theft, robbery or accident. The business of the agent led him through the different places we have stated and detained him necessarily on the road, and he was therefore not obliged, nor could it be expected, while so doing that he would transmit this draft for collection to New York, nor would there be in fact any opportunity to negotiate it until he reached his own home in New Jersey.

We are therefore of opinion that under these circumstances the bill was presented within a reasonable time, and that the defendants are liable to pay the same.

Judgment reversed, and venire de novo awarded.