author: Per Curiam.

text:
    Maffet & Rhoads versus Leuckel.
    ]. Where at the time of obtaining a loan, the reason for the loan, and the ■ uses to which it was to be applied, were distinctly stated to be for a partnership, and it was so understood by both borrower and lender, and the money was, in fact, so used, the inference is a fair one that the advance was on the credit of the partnership.
    2. A. loaned to B. a certain amount taking therefor B.’s individual note. B. stated at the time the note was given that the money was to be expended for the purposes of a firm of which he was a partner, and it was so expended. A. brought suit against the firm to recover the amount. Held, that A. could show these facts, and that he had relied upon the firm for repayment, and thereby fix the liability of the firm.
    March 2d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Luzerne county: Of July Term 1878, No. 18.
    Assumpsit by F. Leuckel against W. B. Maffet and W. T. Bhoads, late partners as Maffet & Bhoads, for a sum alleged to be due to plaintiff by the firm.
    The case was referred to a referee, G. B. Bedford, Esq., who reported the facts as follows: “ That the defendants, during the year 1866, were partners engaged in building a section of the Lehigh and Susquehanna Railroad; that upon the 27th day of November 1866, W. T. Rhoads, one of the defendant firm, applied to the plaintiff for §200, representing that he wished the same for the purpose of paying the men in the defendants’ employ, and thereupon the said amount was advanced by the plaintiff, and the sum was used by Rhoads for the purpose mentioned, he giving the plaintiff a note, of which the following is a copy:
    ‘ §200. Mauch Chunk, Pa., Nov. 27th 1866.
    ‘ One day after date, I promise to pay to the order of F. Leuckel, at the First National Bank of Mauch Chunk, §200, without defalcation, for value received. W. T. Rhoads.’ ”
    The referee in his report, inter alia, said: “ That a note given by one partner for a debt of the firm is not an extinguishment of the original debt, unless so agreed when the note was given, is too well settled to admit of argument. The burden of proof is upon the defendant to show that the note was taken in payment and satisfaction, and not as collateral security. See Mason v. Wickersham, 4 W. & S. 100; Tams v. Hitner, 9 Barr 441 — 8.
    “As the referee conceives, it makes no difference, in principle, whether the debt is an antecedent one or one that is created at the time the security is given. It is true that it has been held that if a partner borrow money and give his own security for it, it does not become a partnership debt by being applied to partnership purposes. It is treated as the discount of a note, and not the loan, and hence is not affected by the subsequent use to which the money is applied. See Graeff v. Hitchman, 5 Watts 454. But the presumption of the advance on the credit of the individual partner may be rebutted; and where, as in this case, at the time of obtaining the money, the reason for the loan and the uses to which it was to be applied were distinctly stated, and were understood by both the lender and the borrower, and the money was in fact so used, the inference is a fair one that the advance was on the credit of the partnership.”
    The referee was therefore of opinion : “ That, though the defendant firm are not liable on the note as such, yet they are responsible under the money counts, and hence that the plaintiff is entitled to recover in this action the amount mentioned in said note, with interest from the 27th day of November 1866.”
    Exceptions were filed to the report of the referee, which the court dismissed, and confirmed the report, when the defendants took this writ.

      A. Ricketts, for plaintiffs in error.
    Parol evidence cannot be received to contradict, vary or alter an instrument of writing, where there is no allegation of either fraud, accident or mistake in the making of it: Harbold v. Kuster, 8 Wright 392, and cases cited.
    Where a partnership is known, and one partner borrows a sum of money and gives his own note for it, it does not become a partnership debt, even though the money be applied to partnership purposes; and the lender cannot recover against the firm, either upon the note, or on account for money had and received: Graeff v. Hitchman, 5 Watts 454.

      H. W. Palmer and John Lynch, for defendant in error.
    The intention with which the money was given and accepted is a matter of fact, which was found by the referee: Mason v. Wickersham, 4 W. & S. 100. The burden of proof was on the defendant below to show that the note was taken in payment and satisfaction, and not as collateral security : James v. Hitner, 9 Barr 441. It makes no difference in principle that the debt is an antecedent one or one that is created at the time the security is given: Graeff v. Hitchman, 5 Watts 454; Hoskinson et al. v. Eliot et al., 12 P. F. Smith 893.
   The judgment of the Supreme Court was entered March 22d 1880,

Per Curiam.

There was nothing in the form of the note produced in evidence to preclude the plaintiff from showing that it was given for a partnership debt — that it was not accepted in satisfaction, but merely as collateral security. It matters not that the making of the note was cotemporaneous with the partnership debt. On the facts found by the referee, we are of opinion that the judgment was right.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Fellows’s Appeal.
    1. The title of a trustee under a deed of trust is complete and irrevocable by the settler, although the transaction be purely voluntary. Nor does the fact that the grantor reserved an interest during life in the proceeds of the property, and gave a future benefit to other persons named, give an implied right to revocation. It contravenes no rule or policy of law, but executes the intention of the grantor.
    2. Frederick’s Appeal, 2 P. F. Smith 338, distinguished.
    June 20th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas of Luzerne county:
      Of January Term 1878, No. 178. In Equity. Certified from the Eastern District and argued at Harrisburg, in the Middle District.
    Bill in equity filed by Joseph Fellows and others, heirs-at-law of Joseph Fellows, deceased, against John Heermans, trustee, and others. The facts are stated in the opinion of this court.
    The case was hoard on bill and answer, the court, Handley, A. L. J., delivering an exhaustive opinion, in which he, inter alia, said: “ When parties make just such instruments as they intended to make, and without fraud, surprise, undue influence or mistake of their rights, but labor under error as to the legal effect, that alone will not authorize a correction by the court: Storrs v. Barber, 6 Johns. Ch. Rep. 166 ; Chapin v. Laytin, 18 Wend. 412; Hunt v. Rausmanier, 8 Wheat. 174. The grantor, Mr. Fellows, when in full life, was noted as one of the most expert conveyancers. lie was trained in the law long before many of the well-known rules of the common law were changed by statute. That he intended to create an active trust by his deeds there can be no doubt. When he directed his trustee to sell the lands in this county by retail, ha fully comprehended about what period of time it would take to sell his land in that manner, it having been laid out in building lots, streets and avenues long before he executed those deeds. From our knowledge of the land to be sold, it will take at least twenty-five years to dispose of it by retail, if it can be done within that period of time. The deeds of Mr. Fellows are not purely testamentary. The trusts created are not solely for the benefit of the grantor. Several relatives have a beneficial interest since the making of these deeds, and this interest took effect during the lifetime of Fellows ; they are not postponed until after his death, and hence the rule laid down in Frederick’s Appeal does not apply in this case.
    “We, therefore, order and direct plaintiffs’ bill dismissed, with costs.”
    From this decree Fellows and others took this appeal.

      James O. Parker and Stanley Woodward, for appellants.
    There was no money consideration for those deeds. Fellows revoked the deeds and afterwards revoked the revocation. The analogy to Frederick’s Appeal, 2 P. F. Smith 338, and Nace v. Boyer, 6 Casey 99, is striking. The court misconceived the intention of the Fellows deed. These instruments on their face are revocable deeds, and the subsequent will did revoke them. Heermanns had the power under' the deeds to have disposed of all the real estate, and turned over the proceeds to Fellows, and the estate was not therefore vested during the lifetime of the grantor. A revocation of the revocation did not bring the original deeds into being without words to that effect. A deed to take effect after death of grantor is testamentary in its effect and dies with the grantor. Heermanns having taken out letters of administration is estopped from overthrowing the will.

      A. Ricketts, for appellee.
    Wherever there has been an actual transfer of the legal interest in property, either real or personal to a trustee upon trusts declared in favor of volunteers, and the relation of trustee and cestui que trust has been established, there the trusts will be enforced in equity; and though the transaction be purely voluntary, the title of the trustee is complete and irrevocable: Ellison v. Ellison, 6 Vesey 656; s. c. 1 Lead. Cas. in Eq. (3d. Am. ed.), and notes.; Kekewich v. Manning, 1 DeG., M. & G. 176, and cases cited therein, and in notes; Hill on Trustees 82, and cases cited in notes; Perry on Trusts, sect. 98, and notes. And the same doctrine is fully held in this country : Slifer v. Beates, 9 S. & R. 166; Sprague v. Woods, 4 W. & S. 192; Dennison v. Gœhring, 7 Barr 175; Reed v. Robinson, 6 W. & S. 329; Delamater’s Estate, 1 Whart. 362; Reese v. Ruth, 13 S. & R. 434; Greenfield’s Estate, 2 Harris 489; Stone v. Hackett, 12 Gray 227.
    The conveyance to Heermans is manifestly a simple conveyance of the legal estate in fee for the purposes of the trusts therein declared. It not only conveys the grantor’s estate to Heermans, his heirs and assigns, for ever, but also empowers him to sell the real estate and convey it in fee-simple to purchasers; and meanwhile to rent it, and pay the.net income of the whole estate to the parties entitled by virtue of the said conveyances. The original and supplementary deeds are evidently to be taken together: 2 Prest. Conv. 363 — 6 ; 5 Cru. Dig. 200, sect. 39; Id. 219, sect. 90; Lord Cromwell’s Case, 2 Rep. 69, 75, a; Earl of Leicester’s Case, Vent. 278; Hamilton v. Elliott, 5 S. & R. 375, 381; Greenfield’s Estate, 2 Harris 489. And the interests of the beneficiaries became thereby vested.
   Mr. Justice Mercur

delivered the opinion of the court, October 6th 1879.

This bill was filed by some of the heirs-at-law of Joseph Fellows, deceased. It prayed the court to decree certain instruments in writing, executed by said Fellows, and dated respectively the 3d, 10th and 15th October 1868, had been duly revoked, and become null and void. The case was heard on bill and answer, and the bill was dismissed. So far as the present inquiry is concerned, all these writings may be considered as parts of one instrument. The first is a deed whereby Mr. Fellows conveyed all his real and personal estate situate in eight different states named, in trust to John Heermans, his heirs and assigns for ever, in consideration of the grantor’s infirmities of advanced age, and of one dollar to him in hand paid. It contains a proviso that the grantee shall soil the lands therein conveyed by retail for the best prices obtainable, and convey the same in fee-simple to the purchasers, with covenants of warranty binding Fellows’s heirs to warrant and defend the title thereto ; that the avails of the real and personal estate shall bo paid, distributed and disposed of as follows : During Mr. Fellows’s life all money shall be paid over to him; afterwards they shall be applied first to the payment of his debts and the expenses' of this trust, and the residue be distributed as may be directed in a writing to be thereafter executed by him, or in default thereof, then said residue to be distributed to his heirs according to the laws of the state of New York. The instrument of October 10th is also a deed, substantially a repetition of the first, with additional directions to the grantee to rent the lands until they can bo sold. The third instrument refers to the deed of October 10th, and states it to be the supplementary writing therein mentioned to be executed for the purpose of directing distribution of the funds. It confirms the preceding deed, and orders distribution, first, the payment of certain annuities; second, of the conveyance of specific parts of the real estate to certain persons in fee, and the rent due for the use of the same to be remitted; also to his brother and his wife, or the survivor of them, the use of a certain house and lot during their natural lives ; third, the residue of the avails of the real and personal estate to be equally divided among his nephews and nieces named.

There is no power of revocation reserved in either of the deeds. It is not shown that either of these conveyances was procured by fraud or unfair dealing. They appear to have been the result of the deliberate judgment and unconstrained will of Mr. Fellows. The trust was accepted and acted upon by the appellee. The title of a trustee under a deed of trust is complete and irrevocable by the settler, although the transaction be purely voluntary: Hill on Trustees *82. Nor does the fact that the grantor reserved an interest during life in the proceeds of the property, and gave a future benefit to other persons named, give an implied right of revocation : Reese et al. v. Ruth, 13 S. & R. 434; Eckman v. Eckman, 18 P. F. Smith 460. It controverts no rule nor policy of law, but executes the intention of the grantor: Lewin on Trusts 137. In December 1868, and again in January 1879, Mr. Fellows executed an instrument of writing purporting to revoke the deeds of trust and the order of distribution. He after-wards instituted proceedings in equity in tho Common Pleas of Luzerne county, against John Heermans and Edmonds Heermans, to set aside the deed of the 10th and 15th October 1868, respectively ; and a like proceeding against John Heermans in the Supreme Court of the state of New York. In June 1871, an agreement under seal, duly acknowledged, was entered into between Fellows, of the one part, and John Heermans and Edmonds Heermans of the other part, reciting the commencement of said actions, and stating that in the one commenced in the state of New York a judgment had been rendered and affirmed, sustaining the validity of said deeds; and whereas the litigation was involving the estate in large and unnecessary expense and waste, therefore in consideration of the premises, and also of the sum of $100 paid by the parties of the second part to Fellows, it was agreed that the said action be forthwith discontinued, and that “ said John Heermans shall forthwith take possession of the property and effects conveyed by said deeds, and of all the books and papers relating thereto, and enter upon and perform all the powers and duties granted to and vested in him, the said Heermans, by said deeds, hereby revoking any and all instruments that said Fellows has heretofore executed, which are inconsistent with or repugnant to this agreement, or to the execution and performance by the said Heermans of the trusts, powers and duties required of him by said deeds.” This was also followed by another instrument under seal, executed by said Fellows, and duly acknowledged, dated the 1st July 1871, in which he declared that his instrument of revocation, executed in December 1868, and recorded, was made under a misapprehension, and did not express his true wishes and intentions, which were really expressed in his deeds to John Heermans; and thereupon said Fellows revoked, annulled and withdrew the said instrument of revocation, and declared the same to be void and of no effect, to the intent that the said deeds to John Heermans should have full force and effect, and that he be no further hindered or impeded in the due execution of the powers and duties intrusted to him therein. In September following Fellows made and executed his last will and testament, and appointed John Heermans and Ebenezer Leech executors thereof in respect to his real and personal property in the state of Pennsylvania, and directed deeds to be made in fulfilment of contracts for the sale of lands in said state, on payment of the purchase-money. The money so paid he directed to be applied in payment of debts due by him, and the residue to be disposed of according to the provisions of' a separate paper to be executed by him. It does not appear that such separate paper was ever executed.

The withdrawal in 1871 of the attempted revocation of the trust deeds made to Heermans is so clear, express and unequivocal as to admit of no doubt in regard to the intention of Mr. Fellows. He used no language indicating that he considered or intended them to be letters of attorney or instruments of a testamentary character. He designated them as “deeds,” and declared they “should have full force and effect,” and that Heermans should be no further hindered or impeded in the due execution of all the powers therein given to him. If doubt existed before as to the irrevocable character of these deeds, the compromise of the suit brought to revoke them removed that doubt. The payment to him of the $100, and his agreement in consideration thereof, show a clear ratification and confirmation that they conveyed the legal estate in fee for the purposes of the trust therein declared.

It is claimed by the appellants that the deeds executed in October 1868 are testamentary in their character under the authority of Frederick’s Appeal, 2 P. F. Smith 338. We think' that case distinguishable from the present in many particulars. The deeds in the present case show a clear intent to take effect immediately. In Turner v. Scott, 1 P. F. Smith 126, the deed declares “ this conveyance in no way to take effect until after the decease of the said John Scott, the grantor.” The controlling effect of these words is pointed out by the present chief justice in Eckman v. Eckman, supra. This last case, we think, fully sustains the conclusion that the deeds in question were not revocable by the settler. Heermans so claimed. The suit commenced by Fellows was to test the validity of that claim. Conceding it was doubtful, the compromise of the suit settled the question in favor of Heermans’s view. The instruments thereupon became fixed and irrevocable.

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


text:
    Honor versus Albrighton.
    ‘1. A lad about thirteen years old was employed as a slate-picker in a coal breaker. Another lad who was attending the machinery called to him to bring to him the oil-can, and he left his post, and in taking the can fell into a pair of rollers breaking coal where he was severely injured. It appeared that the rollers were covered with a box upon the top of which was an opening covered by a plank which was displaced at the time of the accident, and was so often before with the knowledge of the injured boy. Held, that the provision in the Act of March 3d 1870, that all machinery where boys work shall be properly “ fenced off” was intended to mean properly protected, and that in providing this cover for the rollers the employer did his whole duty under the act. Held, further, that if the cover was unnecessarily removed without the fault or knowledge of the employer, through the negligence of one of the employees, there could be no recovery according to well-settled principles. Held, further, that the conduct of the boy presented a case of contributory negligence.
    2. Pee Cueiam.' — It was not the intention of the act to change these just and reasonable rules.
    March 9th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, of Luzerne county: Of January Term 1878, No. 195.
    Case by John Honor against John Albrighton and others, doing business -as Albrighton, Roberts & Co., to recover damages for injuries to the minor son of the plaintiff, alleged to have been caused by the negligence of defendants.
    It appeared at the trial, that Edward Honor, the minor son of the plaintiff, was, in 1871, employed at the defendants’ coal breaker at Plymouth, Luzerne county, as a slate-picker. In breaking coal it is passed through rollers and broken into the various sizes required for use, and after being broken it is shot down chutes to storing places, whence it is loaded into the cars. Boys stand by the sides of the chutes, and, as the coal passes by, pick out the slate therefrom. This was the daily employment of young Honor, and while thus engaged, on the 15th of September 1871, at the lower portion of the breaker, there was just above him a pair of rollers called the “monkey-rollers.” His place as a slate-picker was about twenty feet below these rollers, and did not in any way expose him to danger from them. The lad, who was about thirteen years old, was engaged at his usual work, when a boy named Hobbs, who was attending the machinery above, called to him loudly to bring him the oil-can, which was by the stove near Edward to be kept warm. The latter seized the can and ran up rapidly towards Hobbs, when, just before he reached him, he stepped into the monkey-rollers and his leg was caught and crushed by them.
    The opening over the small rolls was six inches wide, and two feet eight and a-half inches long; this opening was secured with a plank fitting into the opening, and which could not be removed except by lifting it up. When the plank was down there was entire security against any danger from the rolls. The plank was intended to be removed, if the rolls became choked, for the purpose of clearing them out. The plank was displaced at the time of the accident, as it frequently had been before, to the boy’s knowledge.
    The Act of March 3d 1370, Pamph. L. 3, making provision for the health and safety of persons employed about coal mines, enacts, in the 13th section that, “ all machinery in and about the mines, and especially in the coal-breakers, where boys work, shall be properly fenced off;” and the 24th section provides: “That for any injury to person or property occasioned by any violation of this act, or any wilful failure to comply with its provisions by any owner, lessee or operator of any coal mine or opening, a right of action shall accrue to the party injured, for any direct damages he may have sustained thereby, &e.”
    In the general charge, the court, Harding, P. J., inter alia, said:
    “ But conceding that the statute amounts to more than a reiteration of the common law, with reference to the right of an employee who has been injured about one of these collieries, and who brings an action to recover compensation, still, in my judgment, it does not absolve him from the same rule of conduct in connection with the subject-matter of the injury that applied before. Contributory negligence on his part would be as fatal to the success of his action to-day, as it would have been before the statute had existence.
    “ Assuming the colliery in question to have been dangerous, assuming further, that these defendants were guilty of negligence in not having complied with all the provisions of the act to which reference has been made, still [if the boy, Edward Honor, knew, as he says he did, of the condition of these rollers, and of the danger in approaching them ; but nevertheless, at the call of his co-einployee, hastened to deliver the oil-can, an errand wholly outside of his own duty, and injury befell him, as has been described, his father cannot recover in the present action. The conduct of the boy cannot be regarded as less than negligent.] [We have then only to say to you that the plaintiff is not entitled to recover, and that your verdict must be for the defendants.]
    The verdict was for defendants, and after judgment thereon plaintiff took this writ, alleging that the court erred in the portions of the above charge included in brackets.

      A. Ricketts, John Lynch, C. R. Buckalew and W. J. Buckalew, for plaintiff in error.
    It is not claimed that the plaintiff can recover, if the injury was occasioned by the wilful or reckless conduct of his son; .but that the question whether his conduct was of that character — was without justification or proper excuse — should be submitted to the jury.
    By the statute 7 and 8 Vict. c. 15, sect. 21, mill owners are required to fence all their mill gearing and certain other parts of machinery while in motion, for manufacturing purposes. Under this statute it has been decided, that the requirements of the statute being absolute, it is no defence to show that fencing would not have lessened the danger of the particular machinery in question ; and that the omission to have a fence where it is required, is an act of negligence, for which damages may be recovered irrespective of the penalty in the statute: Doel v. Sheppard, 5 E. & B. 856 ; Caswell v. Worth, 5 Id. 849. In addition, it may be observed, that in our statute a right of action is expressly given to the party injured, by the 24th section, and he is not left to resort alone to the principles of the common law in connection with the statute, for his remedy.

      C. L. Lamberton and Andrew T. McClintock, for defendants in error.
    The statute of 28 and 24 Viet. c. 151 (1860), is very similar to our mine ventilation act, and it has been held in Wilson v. Merry, L. R., 1 Scotch and Divorce Cases 341, that the statute cannot have the effect of giving the plaintiff a right of, action which he could not have had without it.
    The evidence is uncontradicted, that the defendants’ breaker was of the best and most secure known to, or used in the region ; that the guard against danger from the rolls was perfect, when the plank was in place; that it was in place the morning of the day of the accident. The defendants were not, therefore, negligent. They had provided the best and safest arrangement against accident used in their business. The removal of the plank intended and used to guard the rolls, was the negligence of a co-employee, and defendants were not therefore liable.
   The judgment of the Supreme Court was entered' March 22d 1880,

Per Curiam.

The Act of March 3d 1870, ought to have a liberal .but reasonable construction. In providing that the machinery in and about the mines and coal breakers “ shall be properly fenced off,” it evidently intended merely proper protection. Then, to protect the opening into which the plaintiff fell, a fence, in its literal sense, would not have been as efficient protection as the board used to cover the opening. In providing this cover, the employer did his whole duty under the act. If that cover was unnecessarily removed without his fault or knowledge, through the negligence of one of the employees, no other servant could recover according to well-settled principles. The conduct of. the boy presented a case of contributory negligence. It was not the intention of the Act of Assembly to change these just and reasonable rules.

Judgment affirmed.


author: Mr. Justice MErcur

text:
    Hochreiter’s Appeal.
    B. and others filed a hill in equity against II. and others, alleging that they were the duly elected officers of an unincorporated society, and that defendants had possession of certain assets of said society which they proposed to sell or transfer, and prayed for injunction to restrain them. The defendants in their answer denied that they had any knowledge of any such incorporated society, but averred that defendants were the duly constituted officers of an incorporated society with which plaintiffs had been associated as members up to a certain time, when they refused to attend its meetings. It appeared from the report of the master, to whom the ease was referred, that in 1866, an unincorporated society had been formed in which both plaintiffs and defendants were members, and that in 1872, said society had been duly incorporated by a decree of the Court of Common Pleas. No minute of the adoption of this charter appeared in the books of the company, but there was a minute of a reference of it back to the attorney who obtained it, for corrections. It appeared also that-this charter was handed down with the other papers of the society by one president to another as they were successi vely installed. The master also found that, in 1875, a new constitution was prepared and declared carried, although not approved by three-fourths of the members present, as required by the constitution of the unincorporated society, and that said new constitution materially changed the objects of the society. It was under this new constitution the plaintiffs made their claim as set forth in the bill. Held, that there was sufficient evidence of the adoption of the charter without a formal minute thereof, and that therefore the bill must fail. Held, further, that even if the charter had not been adopted, the new constitution not having been adopted in accordance with the provisions of the existing constitution of the society, was illegal and of no effect.
    March 9th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas of Luzerne county: Of January Term 1878, No. 69. In Equity.
    This was a bill in equity, filed by the German Catholic St. Nicholas Society, J. Baker, president, and others, against J. Hochreiter and others.
    The bill alleged that said society was an unincorporated society ; that Baker and others were its duly elected officers; that defendants were also members of said society, and that by virtue of their offices, the terms of which had expired, had obtained possession of the funds and assets of the society; that defendants claim to be entitled to the possession and control of said assets; that among these they have fraudulently combined to secure possession of certain promissory and judgment notes, which they are about to proceed to collect and transfer. The bill therefore prayed that defendants should be enjoined from collecting said notes or securities, or disposing of the same.
    The joint and several answers of the defendants denied all knowledge of the existence of the society of the plaintiffs, or of its officers, and averred that, on the 22d of October 1872, “the Saint Nicholas Mutual Assistance Association was duly incorporated by the Court of Common Pleas of Luzerne county. That we were at that time, and have ever since been, members of the said incorporated society, and the plaintiffs mentioned in the bill were also associated with us in said society up to the 8th of June 1875. That there exists in the United States an organization known as the German Roman Catholic Central Association, which is composed of certain local associations throughout the said states. The said 'Central Association, at a general meeting held in Cincinnati, Ohio, in May 1875, adopted and prescribed a constitution for the several local associations within its organization, by the provisions of which, the said local associations are placed wholly subject to the control and domination of the priests connected with them. ■ That, on the said 8th of June 1875, the Rev. P. C. Nagle, priest in charge of the St. Nicholas Catholic congregation of the city of Wilkesbarre, came into the meeting of the said St. Nicholas Mutual Assistance Association, and proposed the adoption of the constitution as aforesaid prescribed by the said Central Association, by this society, in place of the charter and organization under which they had theretofore been acting. This was acceded to by the plaintiffs, but refused by the defendants, who declared that they would keep up their said former organization and charter. Whereupon, the plaintiffs and their associates withdrew from the said incorporated society, and have not since acted therewith, although duly notified by defendants and their associates that they would continue the organization under the charter aforesaid, which they have ever since done.' And we, the said defendants, are duly elected and acting officers of the said incorporated association, and as such have been placed in possession and control of the property of said association, and all our acts in and about such property have been done simply in carrying out and discharging the duty devolving upon us as such officers. And we further answer that it is true that the notes and assets of the said association were, at least in part, acquired while the plaintiffs, or some of them, were members aforesaid; but we deny that when they thus wilfully abandoned the said association, they had any right to take any of the assets thereof with them, and make them the property and assets of another organization. And we further aver that the notes mentioned in complainants’ bill, and the appendix thereto, are the sole and peculiar property of the said St. Nicholas Mutual Assistance Association, incorporated as aforesaid, and that complainants, by abandoning the said association, abandoned all right and title to said property and assets, both individually and collectively, as any other organization, and that complainants have at this time no right, title or property of any kind, in the said notes and assets, either legal or equitable.”
    The case was referred to an examiner and master, Charles E. Rice, Esq., who found the facts as set forth substantially in the opinion of this court.

      He also recommended that the hill shonld be dismissed. Exceptions were filed to his report, which the court sustained, Handley, A. L. J., delivering the opinion, and an injunction issued in accordance with the prayers of the bill. The defendants took this appeal and alleged that the court erred in this action.
    A. Ricketts, for appellants.
    The respondents are officers of an incorporated society, and the notes and assets are the property of such incorporated society, and placed in the hands of respondents as the proper custodians, and clearly the complainants have no right to maintain their bill against them.
    The acts of the society sending the charter hack to the attorney for correction, instead of rejecting it, requiring it to be returned to the society after correction, and watchfully observing that it should be kept continually by the successive presidents as one of the muniments, are sufficient, if there were no other acts of recognition and acceptance of it, to establish that the charter was accepted hv the society.
    But even if the charter was not accepted, the original constitution is still in force, and by its provisions a majority of three-fourths was necessary to alter it, and this number the complainants do not pretend to have had. The master has found that the constitution recommended by the Central Association did not have this requisite vote, and therefore it is not the constitution of the society: Schnoor’s Appeal, 17 P. F. Smith 138; McAuley’s Appeal, 27 Id. 397; Winebrenner v. Colder, 7 Wright 244

      H. W. Palmer and E. P. & J. V. Darling, for appellees.
    It was incumbent upon the respondents to establish tlioir charter. The alleged secession of the complainants, was not from the old organization, but from the alleged incorporation. It was the new principle» introduced by this alleged charter, that were inconsistent alike with the constitution of the old society, and that of the Central V^rein. The defendants were bound to explain the alterations in thew charter: Earl of Falmouth v. Roberts, 9 M. & W. 469 ; Starkie on Evidence (Sharswood’s ed.) 501 ; Jordan v. Stewart, 11 Harris 249.
    The learned master wmnt beyond the issue presented upon the pleadings, and considered, and in fact decided upon the question whether the original constitution of the incorporated society of 1866 was materially altered by the adoption of the constitution in 1875, of the Central Verein. There is nothing in the pleadings that raised this issue. On the contrary, the pleadings confine the issue, as will appear by an examination of the respondents’ answer, to the question whether or not the constitution of the Central Verein, as adopted in 1875, was in conflict with the alleged charter of the incorporated society of 1872. So that, when it was established that the alleged charter of 1872 was never accepted by the original society, there remained no question at issue.
   Mr. Justice MErcur

delivered the opinion of the court, May 3d 1880.

This case was heard on bill, answer and report of the master. He reported in favor of dismissing the bill. On exceptions, the court reversed the conclusion of the master, and ordered and directed the injunction to issue as prayed for in the bill, and decreed in accordance therewith. From that decree this appeal ■was taken.

The bill was filed by persons claiming to be officers and members of “ The German Catholic St. Nicholas Society,” an unincorporated association, against the appellants, alleging they were members of the same society, and charging that they had unduly obtained possession and control of the money and assets of the society.

The appellants denied that they were members of that association, and claimed to hold the property in question as officers of the “St. Nicholas Mutual Assistance Association,” a company duly incorporated; and averred that the appellees were also members of said corporation until they illegally withdrew therefrom.

The main questions arising in the case are, -whether the association was duly incorporated, and, if not, whether the action of the appellees has been such as to give them a legal right to the possession and control of the funds in controversy.

In 1866 a beneficial association was formed, under the name of “ The German Catholic St. Nicholas Society,” commonly called “ St. Nicholas Verein.” Its main purposes were to a.id and relieve sick and needy members, provide for a suitable burial of their dead, according to the rites of the Roman Catholic Church, and to care for the widows and orphans of deceased members. • One of the qualifications necessary to admit a person to membership was that he must be an active member of the Roman Catholic Church at Wilkesbarre. The pastor of that church was permitted to attend the meetings of the society and to make motions, but had not the right to vote. Any alteration or amendment of the constitution required the agreement of three-fourths of the “present members.” A majority could amend the by-laws. In the spring of 1872, according to the requirements of the constitution and by-laws, the society resolved to be incorporated in the name of “ The St. Nicholas Mutual Assistance Association,” or, in German, “ St.- Nicholas Verein,” and prepared articles of incorporation, setting forth the objects of the association to be substantially the same as those of the previous society. The association was to be located in Wilkes-barre ; and it was provided that “ none but citizens of this Commonwealth can become members of this association,” and did not require that they should be active members of the aforesaid church of Wilkesbarre.

In May 1872, the articles, and a petition of members, were presented to the Court of Common Pleas of Luzerne county, and were directed to be filed and published. At the October Term following, a decree of incorporation was made. The validity of the charter is denied by reason of its alleged departure from the instructions given to the committee which prepared it. In the record of the decree on the continuance docket, and in the recorder’s office, and also in the certificate attached to the charter, each show's the name was originally written “ The St. Nicholas Mutual Assistance Association, called Wyoming Vereinbut in each of them the word “Wyoming” had been cancelled by drawing a line through it, and the words “ St. Nicholas” written over. It does not appear by what authority the word Wyoming was written or afterwards changed. It is further objected that the minutes of the society do not show any vote taken on the question of accepting the charter.

The master, however, found as facts, that the charter was handed to the president of the society in December 1872, or in January 1873, and the bill of the attorney was approved and paid. In March and April following complaint was made that it was not correct. The objections appear to have been that the name was wrong; that it required members to be citizens of the Commonwealth, and did not require members to fulfil their obligations to the church of Wilkesbarre. It was therefore resolved that the charter be handed to counsel for correction. And it was so handed. In June following it was resolved that the committee who had been instructed to hand it to counsel, “ care that the charter would be returned into the hands of the society.” At the next monthly meeting it was brought in and handed to the president. Thenceforth until the close of the year 1874, this charter, with the other papers of the society and key to the desk were handed by each president to his successor as they were severally installed, as a part of the ceremony. Thus, for a year and a half after the charter had been returned to the association, it remained in the hands of the proper custodian thereof, and manifestly was accepted and recognised as the charter of the organization.

It seems to us the necessary inference is, that the association was fully informed as to all the provisions of the charter, and that the charter was accepted and adopted by the society, whereby the latter became a body corporate. Nor do we think the fact, that in January 1875, and again in March, objections were made to a president by reason of his not having performed his duty to the church, under the original constitution, sufficient to rebut the presumption of previous acceptance and ratification. If this conclusion be correct, it is fatal to the bill. If- however, we should concede this charter to be invalid, then the constitution of the original society remained in force. That required the agreement of three-fourths of the “ present members” to change or amend it. It is only by virtue of an amendment that the appellees could maintain this bill. They claim the society adopted the general constitution of the “ Central Society.”- If that pretended amendment or adoption is invalid, they have no standing to take the funds out of the hands of the minority who adhere to the society from which the others have seceded, If the appellees have, contrary to the constitution and government of the society to which, they all belonged, severed their' connection therewith, they cannot' invoke the aid of a court of equity'to take the property of the society from those who adhere to the organization, objects and government of the society: Sutler v. Reformed Dutch Church, 6 Wright 503 ; Schnorr’s Appeal, 17 P. F. Smith 138.

The appellees claim that in June 1875, while they and the appellants were members of the same society, and at a meeting thereof, the amended constitution was adopted. The master has found there were at that time about 180 or 185 active members of the society. About 85 of which were present at the meeting. Before the question was put to the meeting on the adoption of the constitution, one of the appellants arose and protested against it, and produced a paper signed by more than 50 members of the society, declaring they would not accept the proposed constitution. When the vote was taken, about 50 or 55 members voted in favor of the adoption of the “ Central constitution,” and that the negative of the question was not put. Thus it appears that three-fourths of all the active members did not agree to the change, and less than one-third of them voted for it. Three-fourths of the members present did not vote in its favor: and more than the number requisite to defeat it, who were present and desirous of voting against it, were not given an opportunity to so vote. Hence, the very constitution under which the appellees claim to have acted was disregarded, and the master has found their action “was revolutionary.” It therefore follows there was no legal adoption of the “ Central constitution.” He further found the ¿attempt was to make a radical change in the obj-ects of the society. We think the correctness of this conclusion is too clear to need argument. The changes are to the objects o.f the society, and the forms of government. Reference will be made to some of them. Previously, it “was practically a mutual aid society only. The change was to make it a religious society, although retaining a mutual aid feature. The sectarian object was made fully equal to the mutual aid object. The question is not whether such a change may not have been beneficial. It is a question of power. Less than three-fourths of those present had no power to change the constitution. Whether the minority acted wisely or unwisely is a question which we cannot review. They had a legal right to hold the appellees to an observance of the constitution, and still retain their fealty to the church. The new constitution greatly enlarged the powers of the pastor. Thus, the names of the candidatos must be submitted to him, and if he objects that the candidate does not fulfil his duties as a Catholic, the name must be withdrawn until the impediment is removed. If the society fail to exclude a member for certain reasons specified, the priest may move his exclusion. He has precedence over all other members in addressing the society. The names of officers elected must be reported to him. On request, the minutes must be submitted to him for inspection, and must not contain anything contradictory “to the prescriptions of the diocese.” Members “must send their children to a Catholic school if possible.” Thus, the power of passing on the qualifications of its members is practically taken from the society and given to the pastor, and he becomes the governing power of the society. The new constitution is radically so different, that it could not be adopted without the concurrence of three-fourths of the members present. It follows, therefore, the learned judge erred in reversing the conclusion of the master, and in decreeing otherwise.

Decree reversed, and bill dismissed at the costs of the appellees.


author: Mr. Justice Sterrett

text:
    Briggs’s Appeal.
    While the general rule undoubtedly is that the presumption of payment of a claim founded on a decree would not arise until twenty years have elapsed, it is well settled that a shorter period than that, aided by circumstances which contribute to strengthen such presumption, may furnish sufficient grounds for inferring the fact of payment.
    March 10th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Orphans’ Court of Luzerne county: Of July Term 1879, No. 89.
    Appeal of George W. Briggs from the decree of the court sustaining the exception to the allowance by the auditor of th-o claim of the appellant as the assignee of Peter Cool, Jr., in the distribution of the fund arising from the partition and sale of the real estate of John M. Briggs, deceased.
    John Briggs, father of John M. Briggs, died on the 3d of January 1852, intestate, and his real estate was partitioned in the Orphans’ Court of Luzerne county. The purparts not elected by the heirs were sold in the year 1855. John M. Briggs elected one and purchased one other, purpart. L. D. Shoemaker, Esq., was appointed an auditor to apportion and make distribution among the heirs of John Briggs, deceased, and he charged John M. Briggs, in his report, inter alia, for the purpart elected and the purpart purchased, with the payment to Peter Cool, Jr., son of a deceased daughter of the said John Briggs, deceased, of the sum of $153.58, with interest thereon from the 16th April 1856. Mr. Shoemaker’s report was excepted to, referred back, and was finally, as to the share of Peter Cool, Jr., confirmed absolutely as originally reported, on the 13th June 1860. Peter Cool, Jrv subsequently assigned his share to George W. Briggs, to whom John M. Briggs, on the 6th February 1863, paid on account of the interest and principal of said share (the interest at the time of payment amounted to the sum of $62.74) the sum of ninety dollars. The attorney to whom the payment was made was also attorney for Thomas Y. Briggs. A copy of the receipt for the payment mentioned is in the words and figures following, viz.:
    “Received, February 6th 1863, of John M. Briggs, forty-nine 81-100 dollars for principal and interest of Thomas Y. Briggs’s share in the estate of John Briggs, deceased, and also ninety dollars on interest and balance on principal of Peter Cool’s share as heir in said estate of John Briggs, deceased, making in all one hundred thirty-nine dollars and eighty-one cents.
    G. B. Nicholson, per John Richards.”
    John M. Briggs died on the 25th November 1875. Partition of his real estate was awarded 22d September 1877, by the Orphans Court of Luzerne county. An auditor, George K. Powell, Esq., was appointed to distribute the fund raised by the sale of the real estate. In February 1879, the auditor made his report, inter alia, allowing the claim of Peter Cool, Jr., assigned to George W. Briggs, and appropriating thereto the sum of $245.69. The heirs of John M. Briggs, deceased, excepted to the allowance of said claim, alleging that the receipt of Mr. Nicholson for ninety dollars covered the whole principal and interest. The court sustained the exceptions,, and in an opinion said:
    “ The only exception now before the court is the one alleging error in allowing the claim of George W. Briggs. The exception alleges, first, presumption of payment from lapse of time, and second, actual payment as appears from a receipt dated February 6th 1873, attached to the report of the auditor. We sustain the exception on the ground of actual payment of the claim in question, which makes it unnecessary to discuss the other view of the case. Aside from the receipt there is nothing on the subject worthy of the name of proof either of payment or non-payment, so the case resolves itself into a construction of the receipt which the court may do notwithstanding the finding of the auditor : Hindman’s

      Appeal, 4 Norris 467, and cases there cited. The receipt reads: ‘ Received, February 6th 1863, of John M. Briggs, ninety dollars on interest and balance on principal of Peter Cool’s share as heir,’ &c. We cannot possibly read this sentence so as to make the word ‘ balance ’ relate to anything but the words interest and principal. The writing does not divide the sum of ninety dollars in any way by which we may apply a definite sum to the payment of interest and the balance on the principal. It is clearly meant that the ninety dollars is balance of interest and principal. We are not informed of the amount of interest then due, nor was such information necessary, as the whole debt and interest were cancelled, hut if there had still remained a principal, then the amount of interest or date to which it was calculated would have been necessary and undoubtedly would have been stated. The construction which we have put upon this paper is consistent with the conduct of the parties for sixteen years, and in equity we are bound to take this into consideration: Hughes v. Hughes, 4 P. F. Smith 240. We therefore sustain the exception and disallow the claim of George W. Briggs, amounting to $245.69, which the clerk is directed to distribute to the heirs of the deceased.”
    From this decree this appeal was taken.

      S. S. Winchester, for appellant.
    The law will not raise the presumption of the payment of a record debt by mere lapse of time, short of twenty years, unless there are other facts and circumstances connected with the transaction, strongly inviting to such a conclusion.
    The auditor having heard the whole case and disposed of it under the evidence, his report can only be set aside for clear error in fact or law : Pittsburgh’s Appeal, 20 P. F. Smith 146 ; White’s Appeal, 12 Casey 134 ; Stehman’s Appeal, 5 Barr 413.

      H. B. Payne and Q. A. Gates, for appellees.
    From less than twenty years aided by circumstances, payment may be presumed: Hughes v. Hughes, 4 P. F. Smith, 240; King v. Coulter 2 Grant 77 ; Diamond v. Tobias, 2 Jones 312; Commonwealth v. Snyder, 12 P. F. Smith 153 ; Webb v. Dean, 9 Harris 29. Under all the circumstances in this case, it does not seem reasonable that this claim should remain so long without recognition or payment: Foulk v. Brown, 2 Watts 215; Korn v. Browne, 14 P. F. Smith 57.
   Mr. Justice Sterrett

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

The appellant’s claim on the fund for distribution is founded on the decree entered June 1860, in proceedings for partition of the real estate of John Briggs, deceased, commenced about six years before. As early as 1855, Peter Cool, Jr., in whose favor the decree was made, assigned his interest to the appellant'.

The appellees claimed that payments were made on account prior to February 6th 1868, and on that day the balance of principal and interest was paid to Mr. Nicholson, attorney for appellant, whose receipt was produced for “$90 on interest and balance on principal of Peter Cool’s share as heir in said estate of John Briggs, deceased.” The receipt is so ambiguously worded as to be susceptible of being construed as payment of interest and balance then due on principal, or as payment of the sum named, to be applied, first, to arrears of interest, and the residue on account of the principal. The Orphans’ Court construed it to mean the balance of both principal and interest, and said: “ The construction which we have put on this paper is consistent with the conduct of the parties for sixteen years, and in equity we are bound to take this into consideration.” What the conduct thus referred to was, or what evidence there was on that subject, we are not informed. It appears from this remark of the court, as well as from the auditor’s report, that some testimony was introduced, but it would seem that neither of them regarded it as of much importance; but, whether of much or little importance, it should have been presented for our consideration, and we should not be asked to reverse the decree of the court below without being furnished with all the facts on which it was based. To do so, would be unfair to the court as well as the parties. In a stale claim like that of the appellant, presented to an auditor twenty-five years after it originated, and nearly nineteen years after the entry of the decree on which it is founded, slight circumstances are 'admissible in support of a presumption of payment from lapse of time. While the general rule undoubtedly is that the presumption does not arise until twenty years have elapsed, it is well settled that a shorter period than that, aided by circumstances which contribute to strengthen such presumption, may furnish sufficient grounds for inferring the fact of payment: Hughes v. Hughes, 4 P. F. Smith 240, and cases there cited. But, aside from this, and assuming that the decree was based solely on the construction of the receipt contended for by the appellees, it is by no means clear that the court was not.right. There is not sufficient on the record to justify a reversal of the decree.

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


text:
    Morris & Lewis versus Shafer. Reizenstein Brothers versus Same.
    1. As a general rule a claim for exemption must be made with such promptness as to occasion no delay to the plaintiff, and not cause him to incur costs that otherwise might be avoided.
    2, An attachment execution under the Act of March 17th 1869, issued, August 1st 1877, and was served on a garnishee on August 2d 1877. On August 13th 1877, a rule was obtained by the defendant to dissolve the attachment, and on May 6th 1878, the rule was discharged. Pending the rule, plaintiffs incurred costs and expense in taking depositions in a distant state. After its discharge plaintiffs proceeded to have the case arbitrated, and obtained an award in their favor on June 27th 1878. On July 10th 1878, the defendant claimed his §300 exemption, which the court allowed. Held, that this was error, as the claim was not presented in time.
    3. It seems that the Act of April 9fch 1849, does not create an absolute, unconditional exemption of which the creditor must take notice at his peril, but-leaves to the option of the debtor whether he will claim it or not. If he does not elect to claim the exemption, the property may legally he sold.
    March 10th 1880.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Quarter Sessions of Luzerne county : Of July Term 1879, Nos. 10 and 11.
    Attachment executions under the Act of March 17th Í869, Pamph. L. 8. One writ was issued at the suit of Morris & Lewis against Frank Shafer, and the other by Reizenstein Brothers against the same defendant. The facts were similar in both cases.
    The writ by Morris & Lewis issued August 1st 1877, and was made returnable on the second Monday of September 1877. It was duly served on the Peoples’ Bank of Wilkesbarre, as garnishee, on August 2d 1877. On August 18th 1877, defendant obtained a rule to show cause why the attachment should not he dissolved. On May 6th 1878, this rule was discharged. While this rule was pending, the plaintiffs obtained rules to take depositions, and a commissioner to take testimony was sent to Texas. On May Cth 1878, judgment was entered against the defendant for want of an affidavit of defence. On May 7th 1878, interrogatories to the garnishee were filed, and a rule entered on the hank to answer. On May 11th the bank filed its answer. On May 22d 1878, the case was referred to arbitrators at the instance of plaintiffs, and on June 27th 1878, the arbitrators found an award for plaintiffs for $228.80. On July 10th 1878, by a paper filed, defendant claimed the benefit of the exemption laws, and asked that $800 be set apart to him.
    On the 20th of July 1878, the garnishee, upon motion, paid the money into court, and on the same day, the plaintiff applied to the court for permission to draw the money out. The court, Handley, A. L. J., granted a rule to show causo, and on the 8th of April 1879, refused the plaintiffs’ motion, and allowed the defendant his exemption in an opinion, inter alia, saying:
    “ The evidence in the attachment proceedings does not warrant us in depriving this defendant of his right to claim the benefit of the exemption law, and notwithstanding the attachment was sustained on the 6th of May 1878, and the defendant did not claim the benefit of the Act of 1849, until the 10th of July 18,78, yet we are of the opinion the defendant must he allowed his exemption. The rule in this case is discharged.”
    This action of the court was assigned for error by Morris & Lewis and Reizenstein Eros., who took these writs.

      S. J. Strauss and J. Vaughan Darling, for plaintiffs in error.
    The notice of the claimed exemption must be reasonable, and to prevent litigation. It is too late as a plea in the proceedings against the garnishee : Strouse’s Ex’r. v. Becker, 8 Wright 208 ; Zimmerman v. Briner, 14 Id. 535. The defendant in an attachment, may claim the exemption when he appears, and before plaintiff has taken steps to his detriment without notice of the claim : Landis v. Lyon, 21 P. F. Smith 473; Bancord v. Parker, 15 Id. 336; Bittinger’s Appeal, 26 Id. 105; Bair v. Steinman, 2 Id. 423. It is in time if made before or with the garnishee’s answers: Yost v. Heffner, 19 P. F. Smith 68.
    If the claim cannot be made by plea on the trial, a fortiori, it cannot be made after the trial, whereby judgment has been recovered against the garnishee.

      E. Robinson and T. J. Chase, for defendant in error.
    A defendant need not claim his exemption until judgment has been entered, and final, or execution process issued against him: Cornman’s Appeal, 9 Norris 254
   Mr. Justice Mercur

delivered the opinion of the court, May 3d 1880.

These two cases involve the same question, and were argued together. The suits were commenced by attachment under the Act of 17th March 1869, Purd. Dig. 53, pl. 57. The contention is in regard to the claim of the defendant to retain $300 worth of property. In the view we take of the cases it is only necessary to consider whether the claim was made in time.

The Act of 9th April 1849 is the basis of all laws exempting property to the value of $300 from levy and sale on execution. It does not create an absolute unconditional exemption of which the creditor must take notice at his peril, but leaves to the option of the debtor whether or not he will claim it. If he does not elect to claim the exemption, the property may legally be sold. It is a right which the debtor may waive, either by agreement when the debt is contracted, or by omitting to claim it in time when legal proceedings are being had against the property. As a general rule, the claim must be made with such promptness as to occasion no delay to the plaintiff, and not cause him to incur costs that might otherwise be avoided. In case of attachment-executions it has been held that the defendant was not required to make the claim of exemption to the officer when he served the attachment; but that it might'be made at the term to which the attachment was returnable, and before the plaintiff had taken any step to his detriment: Strouse’s Executors v. Becker, 8 Wright 206; Yost v. Heffner, 19 P. F. Smith 68; Landis v. Lyon, 21 Id. 473; Bittinger’s Appeal, 26 Id. 105. The true intent and spirit of all the statutes providing for the $300 exemption require that they be construed pari materia.

This attachment was issued 1st of August 1877, and returnable on the second Monday of September. It was served on the garnishees on the 2d of August. On the 18th August the defendant Shafer obtained a rule to show cause why the attachment should not be dissolved. On the 6th of May following, the rule wuis discharged. During its pendency the plaintiffs incurred costs and expense in taking depositions in a distant state. After it was discharged they proceeded to have the cases against the garnishees submitted to arbitrators, and, on the 27th June 1878, obtained an award in their favor. On the 10th of July thereafter, by paper filed, the defendant claimed the benefit of the exemption laws, and asked that $300 be set aside for him. The court allowed the exemption. In this we think it erred. The delay of the defendant in making the claim was inexcusable. With full notice of the issuing of the attachment several weeks before the return thereof, he makes no claim to the exemption; but, both by his active efforts and by his gross delay, he induces and encourages the plaintiff’s to incur large costs and expenses. After this, and- nearly eleven months after he first began to move in the case, he first makes the claim. The learned judge erred in discharging the rule taken by the plaintiff’s to show cause why they should not draw the money paid into court by the garnishees.

Judgments reversed, and now, May 3d 1880, it is ordered that the rule taken by plaintiffs in each case be reinstated, and made absolute.


text:
    Drake versus Kiely.
    1. A lad about ten years of age was forcibly put on board of a freight train by its brakeman, and against his will was carried for a distance of five miles. He returned home on foot, running most of the way, and was taken sick and became permanently crippled in both legs. Meld, that the action of the brakeman was a trespass, and if the conductor of the train was present, and directed or consented to the acts of the brakeman they were joint trespassers, and if the sickness resulted directly from their acts they were liable in an action of trespass.
    2. Per-STERRETT, J. — In view of the testimony in this case the court could not undertake to decide that the trespass had no connection with the plaintiff’s sickness ; that the latter was not the natural and probable consequence of the former. Nor that it was not such a consequence as under the circumstances might and ought to have been foreseen by the defendants as likely to flow from their conduct. These were necessarily questions for the jury.
    March 10th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Bradford county: Of January Term 1877, No. 55.

    Trespass on the case by Patrick H. Kiely, by his next friend, John Kiely, against James H. Drake and George Drake, for an injury alleged to have been suffered by the plaintiff by reason of the unlawful acts of the defendants.
    James H. Drake, one of the defendants, was the conductor of a freight train, with a caboose car attached for passengers, on the Northern Central Eailway, on the 24th of August 1872, at the time of the alleged cause of action, and had acted in that capacity for the period of twenty-two years; the other defendant, George Drake, was a son of J. H. Drake, and acted as brakesman at the time of the alleged cause of action, and was at that time about eighteen years of age. The plaintiff, when injured, was about ten years of age, and resided in his father’s family near the depot. The train, on the 24th day of August, arrived at the depot, in Troy, a little after 4 o’clock p. M., and was about two hours late. The conductor immediately went to transact the necessary business into the office of the agent, whose office was located on the west side of the depot building, the railway track being on the east side. The brakesmen were engaged in the transfer of freight at one of the freight cars standing near the north end of the depot platform; the work at the station was completed, with the exception of loading a piano or melodeon. Henry Hebe, one of the employees of the train, went to the caboose, which stood near the water-tank, at the south end of the depot, to get an iron bar, and saw the plaintiff, with two or three of his brothers and some other boys, in the caboose taking peaches from a crate, which they had broken. He immediately stepped back and informed George Drake of the fact. As George came up the plaintiff came from the car, and had stepped on to the depot platform, when George took him in his arms, carried him into the caboose and put him in the closet on the east side, locked the door, and immediately went back and assisted to load the instrument, which was done in three or four minutes. About the time the work was completed James H. Drake came from the office, and the train immediately started. He alleged he knew nothing of what had happened between his son and the plaintiff, and had no knowledge that the plaintiff was in the car or the closet until the train was in full motion, running at about the rate of fifteen miles an hour on a dowm grade, and was near the plaster-switch, a distance of between a quarter and a half mile from the depot. It was then concluded, upon consultation of the defendants, in plaintiff’s presence, that they would take him on to Columbia X Roads, a distance of some five miles, when he could return with Joseph Williams on the express train coming south, which would bring him back to Troy, his home, in the early part of the evening. He was taken to the Columbia x Roads, got out of the caboose, went home on foot, running or trotting most of the way, as he alleged. He arrived at his home between 5 and 6 o’clock, went to his father’s house, and the same evening bis mother sent him down town. He was seen coming towards town the same evening, and on the Monday following he was seen around the depot. He was taken sick after his return from the X Roads, and remained, it was alleged, in an unconscious state for a long time. No doctor was called until some ten or eleven days after his return from the X Roads. From this sickness he never recovered. He is a cripple in both legs, and will remain so in all probability for life. He brought suit against defendants for damages alleged to have resulted from the sickness caused by his trip to the X Roads.
    At the trial, before Morrow, P. J., defendants proposed to ask the witness, Dr. Axtell, on cross-examination, " If at this first visit Mrs. Kiely stated in the presence of the plaintiff that his (plaintiff’s) sickness was caused by his having been in swimming?” Objected to as not a cross-examination. Objection sustained, question rejected. (First assignment of error.)
    Also to ask witness, Cornelius Sayles, whether, in conversation, Kiely told him how the boy (plaintiff) got hurt, whether he did not say he got hurt playing weak horse. Objected to, because, first, any conversation had with John Kiely will not affect the plaintiff; and, second, defendants were bound by John Kiely’s answers when interrogated in relation to the alleged conversation. Objection sustained. (Second assignment.)
    The second and fourth points of the plaintiff, which the court affirmed, were as follows :
    2. That if J. H. Drake aided, abetted or directed George Drake in taking the plaintiff on board the car, or if the act of George Drake was in the presence of J. II. Drake, he being the conductor in charge and control of the train, and George Drake a brakesman under him, then the act was this act of J. H. Drake, and the plaintiff is entitled to recover. (Seventh assignment.)
    4. That the plaintiff, being a child of tender years, a different rule of responsibility and contributory negligence prevails from that as to adults, and that what might be a bar to the recovery of consequential damages by an adult might not be a bar in the case of a child of tender years. (8th assignment.)
    In the general charge, the court, inter alia, said:
    “The undisputed evidence shows-that the plaintiff was forcibly put onboard the.car and carried against his will to Columbia Cross Roads, a distance of nearly five miles; also, that he returned home on foot, running a part if not all the way. George Drake testifies that he put him on the car and locked him in the closet, and kept him there until after the train was under motion. This was an act of trespass on his part, [and if James H. Drake was present, directing or consenting to the act of George in putting him on the car, they were joint trespassers, and the plaintiff is entitled to recover against both] such damages as the jury find, under the evidence, he sustained at their hands. If his sickness was the direct result of their acts, that is, if their acts, in connection with the plaintiff's fright, excitement and exertion in returning home, were the immediate cause of his sickness, [he is entitled to recover damages, as well from the injuries resulting from his sickness as by being put on the car and carried away.]
    “ But he cannot recover for injuries resulting from his sickness, if his own conduct and acts constituted negligence on his part, which contributed' in any degree to such sickness. [What would be negligence in an adult might not be negligence in a boy ten years of age, and hence, the jury in passing on the question of negligence, must have regard to the age and intelligence of the plaintiff at the time the alleged injuries were received.] If his sickness was not the direct result of the acts of the defendants, was the result of other causes, or if his negligence contributed to his sickness in any degree, then he could recover only such damages as he sustained by reason of having been forcibly put on the car and taken away; that is to say, all damages he suffered prior to, and independent of his sickness, and these, instructions will govern your verdict, whether under our subsequent instructions you find against George Drake only or against both defendants.
    “ This leads us to remark, and we call your attention particularly to the fact, that [there can be no recovery in the case against James H. Drake if he had no knowledge of the acts of his son George in putting the plaintiff on the car, knew nothing about the matter until the train had gone from the station a quarter or half a mile,] and was going at the rate of fifteen miles, or thereabouts, an hour.
    “ He did not make himself a joint tresspasser in refusing to stop the train and allow the boy to get off, although by this refusal the injury the plaintiff sustained was produced in part by the acts of both defendants, if there was no concert between them. Where two or more commit separate trespasses tending to produce an injury to another, there is no joint liability and can be no joint recovery. This, however, will not prevent a recovery against George Drake under the instructions already given, but there must be no recovery against James II. Drake, unless the jury find from the evidence he was a joint trespasser.”
    Verdict for plaintiff for $1658, and after judgment, defendant took this writ, and alleged that the court erred as set forth in the above assignments, and in the portion of the charge included in brackets.
    E. B. Parsons and Delos Rockwell, for plaintiffs in error.
    The sickness of the lad was too remote a consequence of his being put on the train. The defendants are only liable for such damages as their acts directly caused, and not for the consequences of intervening causes over which they have no control, and which had no connection with putting plaintiff on the car: Hoag v. Michigan Southern Railroad Co., 4 Norris 293. See also Pennsylvania. Railroad Co. v. Kerr, 12 P. F. Smith 353; Ryan v. New York Central Railroad Co., 35 N. Y. 210; Oil Creek Railroad Co. v. Keighron, 24 P. F. Smith 320.
    The master as such is not liable for the trespasses of his servant, unless the particular wrongful act of the servant was ordered by the master, or in other words, unless the master be the immediate cause of the injury. Even then he is not liable because he is the master, but because the act is personally and immediately his : Yeager v. Warren, 7 Casey 219.

      B. S. Bentley and Davies & Carnochan, .for defendant in error.
   Mr. Justice Sterrett

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

The trespass in this case was clearly established by undisputed testimony. The only matters about which there could be any difference of opinion were whether the defendants below were joint trespassers, whether the trespass was the proximate cause of all or only some of the injuries complained of, and, as a sequence thereof, what amount of damage the plaintiff was entitled to recover. There were all questions of fact, exclusively for the jury, and considering the charge as a whole they were submitted with instructions of which the plaintiff' in error has no reason to complain. As to the fact of joint trespass, the testimony was such that the court was bound to submit it to the jury. The plaintiff himself testified that George Drake, after forcing him into the car, locked him up in the closet, and that the other defendant directed George to put him on the car. The witness says : “ He caught hold of me and dragged me and put me in the car. His father, James H. Drake, said, put him on. He, George Drake, took hold of me to put me on the car; I took hold of the railing; he pulled me from it; took me in the car; put me in the closet, and left me quite a while, until the train started. I cried and asked him to let me out they would not let me out; James H. Drake was on the platform when he told George to put me on the car. After the train had started, George came and let me out, and was going to let me off the train. His father told him to keep me on, and he took me up to Columbia X Roads.” It is true we find in the defendants’ testimony a different version of the transaction, so far as the conduct of James H. Drake at the outset is concerned, but it was the exclusive province of the jury to determine which was correct. If they believed the boy, the defendants were beyond doubt joint trespassers. After speaking of the conduct of George Drake, and pronouncing it an unqualified trespass, the learned judge proceeded to say that “ if James H- Drake was present, directing and consenting to the act of George in putting him on the car, they were joint trespassers, and the plaintiff is entitled to recover against both such damages as the jury find, under the evidence, he sustained at their hands.” In a subsequent part of the charge, the attention of the jury was again called to this feature of the case, in such a manner that they could not fail to comprehend the principle by which they were to be guided in determining the question of joint liability. They were told there could be no recovery against James H. Drake, “ if he had no knowledge of the acts of his son in putting the plaintiff on the car, and knew nothing about the matter until the train had gone from the station a quarter or half a mile. He did not make himself a joint trespasser in refusing to stop the train and allow the boy to get off, although by this refusal the injury the plaintiff sustained was produced in part by the acts of both defendants, if there was no' concert between them. Where two or more commit separate trespasses, tending to produce an injury to another, there is no joint liability, and can be no joint recovery. This, however, will not prevent a recovery against George Drake under the instructions already given, but there must be no recovery against James H. Drake unless the jury find from the evidence that he was a joint trespasser.” What more could this defendant ask at the hands of the court ? Under the instructions thus given, the jury, if they had adopted his version of the transaction, would have been bound to return a verdict in his favor. The result evidently showed that they did not do so. They believed the plaintiff’s statement, and we are not at all prepared to say they were not right in so doing. The circumstances disclosed by the testimony tended rather to corroborate him, and at the same time render it difficult to understand how such an outrage could occur while the train was stopping at the station, and the conductor not be aware of it. If he was present, and cognizant of the trespass that was being committed, he owed it as a duty to himself and all concerned to assert his authority and prevent further wrong, and if he neglected to do so, it would not be unreasonable to infer consent thereto on his part. According to his own testimony, he certainly manifested great indifference. Referring to the time the train started from the depot, he says : “ I heard an unusual noise in the baggage-car soon after I got in; sounded like noise proceeding from a human creature; I was collecting fare of passengers; after I did that, opened the door and went in there.” If the “ unusual noise,” “ proceeding from a human creature,” had commanded his immediate attention, as it should have done, he could have released the boy, and set him off the train while he was yet in sight of home. His conduct was not calculated to elicit the sympathy of the jury, and if it resulted unduly to his prejudice, the remedy was solely with the court helow. The question of joint liability was submitted with full and guarded instructions, of which he has no reason to complain, and the verdict must be accepted as conclusive. The next question, to which some of the assignments of error are directed, is that of proximate cause. Upon an admitted state of facts this would ordinarily bo a question of law for the court: Hoag v. Lake Shore & M. S. Railroad Co., 4 Norris 293. In the present case the most material facts were in dispute, and the court could do nothing else than submit the testimony to the jury, with proper instructions to determine the facts, apply them to the principles of law, and render their verdict accordingly. It was conceded that the plaintiff had sustained some injury, for which he was entitled to recover, at least against one of the defendants, but it was denied that his sickness and subsequent suffering, in relation to which considerable testimony was introduced, was the result of the trespass. In other words, it was contended that the trespass was not the proximate cause of these injuries. This was the main question in the case, and in submitting it to the jury the learned judge instructed them that if the plaintiff’s sickness was the direct result of the defendants’ acts, “ that is, if their acts, in connection with plaintiff’s fright, excitement and exertion, in returning home, were the immediate cause of his sickness, he is entitled to recover damages as well for the injuries resulting from his sickness as from being pnt on the car and carried away. But he cannot recover for injuries resulting from his sickness if his own conduct constituted negligence on his part, which contributed in any degree to such sickness. What would be negligence in an adult might not bo negligence in a boy ten years of age, and hence, the 'jury, in passing on the question of negligence, must have regard to the age and intelligence of the plaintiff at the time the alleged injuries were received. If his sickness was not the direct result of the acts of the defendants — was the result of other causes, or if his negligence contributed to his sickness in any degree, then he could recover only such damages as he sustained by reason of having been forcibly put on the car and taken away ; that is to say, all damages he suffered prior to and independent of his sickness; and these instructions will govern your verdict whether under our subsequent instructions you find against- George Drake only, or against both defendants.” The instruction thus given was both appropriate and adequate, and is here referred to at length for the purpose of showing how some of the detached sentences of the charge assigned for error are explained and qualified by the context. If the defendants below had desired other or more specific instructions on the subject, they should have preferred their request to'the court. In Hoag v. Railroad Co., supra, our brother Paxson says: “ The doctrine laid down in the Railroad Co. v. Hope, and to be gathered incidentally perhaps from Raydure v. Knight, is, that the question of proximate cause is to be decided by the jury upon all the facts in the case; that they are to ascertain the relation of one fact to another, and how far there is a continuation of the causation by which the result is link-ed to the cause by an unbroken chain of events, each one of which is the natural, foreseen and necessary result of such cause. * * * In determining what is proximate cause, the true rule is, that the injury must be the natural and probable consequence of the negligence; such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act.” In view of the testimony in this case, the court could not undertake to decide that the trespass had no connection with the plaintiff’s sickness; that the latter was not the natural and probable consequence of the former. Hor that it was not such a consequence as under the circumstances might and ought to have been foreseen by the defendants as likely to flow from their conduct. These were necessarily questions for the jury. A child of tender years was forcibly seized, thrust into a car, locked up in a dark closet, and carried five miles from home, released late in the evening, and left to find his way home as best ho could. Was it an unnatural or improbable result, that he should be excited, nervous, terrified; that he should make his way home, if he could find it, with all possible speed, and without thought of consequences? Was it at all unnatural or improbable, that the abuse, excitement and exposure W'ould result in some form of illness, more or less severe? And were not .these such natural and probable consequences as might and ought to have been foreseen by those who committed the trespass? If they were, it was not at all necessary that they might and ought'to have foreseen the nature, severity or extent of such illness. To hold that this was essential would he requiring entirely too much in the interest of the wrongdoer. The actual results depend very much on the physical condition and constitutional tendencies of the person injured; in some cases they, might not be so serious, in others more serious, and even permanent, as in the present case. We fail to see any error, either in the submission of the question to the jury, or in the manner in which it was done. As the case stood upon the testimony, there was no material error in sustaining the objections to questions put to Dr. Axtell and Cornelius Sayles. What has been said refers sufficiently to all the assignments of error that appear to call for special notice. They, as well as those not specially referred to, are not sustained.

Judgment affirmed.

Sharswood, C. J., Mercur and Paxson, JJ., dissented.


author: Mr. Justice Trtokey

text:
    Ward versus Vance.
    A. agreed with B., the owner of a hotel, to furnish the same with water by and through the same pipes then used for said purpose, B. afterwards leased the hotel to C., and covenanted that the house should he supplied with spring water in the same manner as then supplied under the agreement with A. B. was to keep certain pipes in repair and C. others, and B. was to see that the covenants made by A. should be kept. In a suit by G. against B. for breach of covenant, the court instructed the jury that B. was bound to supply water, whether the spring from which it was drawn kept up or not. Held, that this was error; that although the water of the spring had always been the source of supply of the house, yet if it failed from drought or other natural cause, it was no breach of any covenant express or implied for its supply.
    March 10th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Bradford county: Of January Term 1879, No. 186.
    Debt by J. C. Vance against John O. Ward, to recover for hauling water to supply a hotel properly leased by Ward to Vance, in consequence of the failure of said Ward to supply said hotel according to an agreement contained in the lease under which Vance held the premises.
    At the trial it appeared that, on January 19th 1866, C. L. Ward and John O. Ward entered into an agreement whereby the former was “ to furnish and supply the Ward House, in Towanda borough (owned by John O. Ward), with spring water, so long as the said John O. Ward, his heirs or assigns, may desire to have the same furnished and supplied, said water to he conveyed and supplied ■with the same, and by and through the same pipes and faucets •which are now used for the same purpose, or by and through other pipes and faucets of the same dimensions.” Under this agreement John O. Ward agreed to keep in repair the pipes and faucets on his own premises, and O. L. Ward agreed to keep in repair the remainder. On July 6th 1871, a lease of the Ward House by John O. Ward was made to Koon & Means, and was subsequently, in July 1874, assigned to J. O. Vance, the plaintiff.
    This lease provided, “ That said Ward House is to be supplied with spring water during said term, in the manner the same is now supplied under that certain agreement,” between C. L. Ward and John O. Ward above mentioned, * * * “and said Ward is to be to all the expense of keeping the pipes, &c., in repair.” * * * “ Koon & Means to keep the inside pipes in repair, and Ward the others ;” * * * and Ward “is to see that the covenants made by C. L. Ward in his agreement” * * * “ are kept by the heirs of C. L. Ward.” Vance took possession May 11th 1874, some little time previous to the formal assignment of the lease. The spring from which the' water was conveyed, as mentioned in the agreement between O. L. Ward and John O. Ward, was a half or three-quarters of a mile out of town, and had been the only regular source of supply of water to the house since the same was built. The claim of Vance for an insufficient supply of water arose in part from the fact that he had put water-closets in the house to the number of five, and had connected them with the water-pipes.
    Erom Vance’s own testimony it appeared that shortly after he took possession of the premises his guests began to complain about the insufficient supply of water ; that the reservoir fed by the spring was cleaned out; that it was quite a dry time, and the reservoir did not again fill, and he was compelled to haul water continually; that a good portion of the summer of 1874 he had to haul water.
    In the general charge the court, Morrow, P. J., inter alia, said :
    “ You are to ascertain how much of the water was necessary to run the house independently of these closets, and whatever it actually cost Mr. Vance for hauling and supplying the house with water, we think Mr. Ward is bound to pay under his agreement, providing you find that the water which was being supplied to the house in the summer of 1871 was sufficient to supply the house all through this time, and that, too, we think, whether the spring kept up or not, because Mr. Ward agreed to supply the house with spring water under that certain agreement between John O. Ward and O. L. Ward, dated January 19th 1866.”
    Verdict for plaintiff for $533; and after judgment thereon defendant took this writ, and alleged that the court erred in the above portion of the charge.

      Edward Overton, Jr., N. C. Elsbree, E. F. Goff and John F. Sanderson, for plaintiff in error.
    Ward did not intend to warrant the capacity of the spring to be sufficient to answer the demands of the hotel for all coining time, under every possible combination of circumstances, and notwithstanding temporary failures of supply from drouth and other natural causes.
    The essential point in the contract was to maintain the present condition of things. It was not to supply the hotel with water, in the sense of answering its full demands, present and future. It was to preserve the supply which the spring then afforded according to its capacity and the other conditions then existing: Angell on Watercourses, sect. 276.

      Davies & Carnochan, for defendant in error.
    But a single error is assigned in this case, and that based upon an isolated expression of the learned judge upon a matter not contested on the trial. The controversy was not as to whether “ the spring kept up or not,” but the defendant below rested that part of his case upon the allegation of the sufficiency of the water supply for ordinary purposes. lie insisted that the deficiency was caused wholly by the increased quantity required to run the -water- closets put in by Vance.
    The contest was not about a casual stoppage of water, but an entire failure of supply. The plain reading of the contract justifies the charge of the court below.
   Mr. Justice Trtokey

delivered the opinion of the court, March 22d 1880.

But one question is presented: If the spring water which was supplied in the summer of 1871 was then sufficient for the use of the house, was Ward bound to keep up a supply equal to that whether the spring kept up or not ? The court charged that he was so bound, “ because Mr. Ward agreed to supply the house with spring water under that certain agreement between John O. Ward and O. L. Ward, dated January 19th 1866.”

It is contended by the defendant in error, that this is an isolated expression on a matter not contested, and the controversy was wholly, whether the deficiency was not owing to the increased quantity required on account of the lessee’s improvements. That such was the chief point respecting the water supply, is apparent in the testimony, yet there is evidence to which the instruction' complained of is applicable. Mr.Vance testifies : “ May 11th 1874, 1 went into possession. A very few days after, cleaned out the reservoir; it was quite a dry time, and Í had to draw water continually. Probably would not have had to draw water so quick, if it had not been for cleaning the reservoir.” Hence it cannot bo said, that if the instruction was erroneous it worked no injury to the defendant. It enabled the jury to include damages when there was a deficiency by reason of failure in the spring.

The lessor covenanted that the house should be supplied with spring water in the same manner as then supplied under his agreement with C. L. Ward, the lessee to keep the pipes in repair inside the house, and the lessor those outside. He also agreed “ that the covenants made by C. L. Ward, in his agreement of January 19th 1866, should be kept. Here is an express stipulation in reference to water supply by the pipes then laid from the house to the spring, and in operation, and that the lessee should have its use during the term, “ to be furnished and supplied with the same, and by and through the same pipes and faucets which are now used for said purpose, or by and through other pipes and faucets of the same dimensions.” If the water failed because of drought, or other natural cause, which neither party could prevent, it was no breach of any covenant, express or implied, for its supply. The lessor did not undertake to lay pipes to other fountains, or furnish water in any other way than as supplied at the time of making the contract. He did not agree to furnish water in caso drought dried that spring. We are of opinion it was error to instruct the jury that he was bound to supply water, equal to the supply in 1871, whether the spring kept up or not.

Judgment reversed, and venire facias de novo awarded.