text:
    Bast and Others’ Appeal.
    1. There is an implied obligation amongst partners, that their property shall be used for the benefit of the firm, and that each partner shall not engage in any business which will deprive the partnership of a portion of his skill or diligence, or capital which he is bound to employ in it.
    2. A partner is in a fiduciary relation to his fellows, and must account for all money received in and through the firm’s legitimate business.
    3. Before partners .can be estopped from claiming the labor of one of their fellows or profits earned in the business, it must be clear that they have yielded their right to them.
    4. In this case, transactions in the name of one partner, and intended by him for his individual benefit, held to be for the firm.
    January 4tb 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Appeal from tbe decree at Nisi Prius : In Equity.
    The bill in this case was filed to January Term 1870, No. 16. It was by Emanuel Bast, Robert Taylor, and Robert M. Lindsay, against Charlemagne Tower and John B. Heyl, executors, &e., of Davis Pearson, deceased.
    The bill set out that the plaintiffs and Pearson had been partners under the name of Davis Pearson & Co., from January 1st 1865 to January 1st 1868 ; and that Pearson had received from Joseph 0. Wright, $27,838.99 for the use of the partnership, of which Bast was entitled to one-third, Taylor and Lindsay each to one-sixth ; that Pearson had not accounted for that sum, but claimed to retain it as his own.
    The prayer was for an account and a decree for the payment of what should be found to be due. An answer and replication were filed, and C. H. T. Collis, Esq., appointed examiner and master. The articles of partnership were dated January 6th 1865. By them Pearson and Bast sold to the other partners for $20,$33.33 each, one-third of the interest in their collieries, &c., their offices in Philadelphia, Ashland, and New York, and their wharf at Richmond, to be paid for with interest, from the profits of the business after deducting the necessary expenses of Taylor and Lindsay, not exceeding $1500 per annum; the partnership to continue until it should be dissolved by mutual consent.
    The partnership was dissolved January 1st 1868; Pearson died July 21st 1868.
    Pearson and Lindsay conducted the business at Philadelphia;— Bast at Ashland, and Taylor at New York.
    In March 1865, the government advertised for coal to the amount, if necessary, of 3000 tons per day, during April, May, and June. A number of coal companies united in a bid for the coal; Pearson & Co. were not asked to join in the combination.
    On the day the proposal for the coal was to be sent in to the quartermaster, John Tucker came to Pearson & Co.’s office; he told Pearson that he was in the confidence of the companies proposing for the coal, and had obtained from them the prices they intended to bid, and these companies having decided that there should be no opposition in bidding, Tucker advised Pearson to offer a bid somewhat less than the others had offered. Pearson informed Lindsay what Tucker had said to him, and after consultation with Lindsay, it was arranged that Elubac'her, a clerk in the office of Pearson & Co., should make a proposal in his own name with Davis Pearson as his surety; Elubacher made a bid and it was accepted; the other companies assuming the contract was Pearson’s, refused to sell him any coal, and announced that they would endeavor to prevent others from selling to him. After much negotiation, in which Tucker was very active, an instrument was executed of which the heading was:—
    “Philadelphia, March 27th 1865.
    Memorandum of agreement between the parties whose signatures are annexed hereto, who severally agree as follows :”-r-

      This paper was signed by 0. Wilson Davis, President New York & Schuylkill Coal Co., Tyler & Co., “ Davis Pearson,” and four other firms.
    In pursuance of this agreement, Flubacher assigned his contract to Joseph C. Wright, as the representative of the association. The several parties were to furnish coal to Wright to fulfil the contract in the following proportions, viz: Pearson, The New York & Schuylkill Coal Co., and Tyler & Co., each one-sixth; the remainder to be furnished by the other four parties; the coal to be furnished to the association by the several parties at twenty-five cents per ton above the market price. •
    If there should be any differences amongst the parties they were to be settled by Tucker. The profits or loss were to be divided in the proportions in which the coal was to be furnished.
    At the meetings of the association each company was represented, by one of its members; Pearson attended, — none of his partners attended. There was testimony that it was a matter of doubt whether there would be profit or loss. “ If General Grant had been defeated instead of Lee, it would have been a loss.” All the other parties in the association treated the transaction as if the firm of Davis Pearson & Co., were one of the members, and the understanding was that the original contract had been awarded to the firm.

    In the books of the association the accounts relating to the one-sixth represented by Pearson were kept in the name of “Davis Pearson & Co.,” and the checks for payments were drawn in accordance with the entries. In the private books of Davis Pearson there were entries of the profits made by Lindsay to Pearson individually. Lindsay having received from the association $20,000 of the profits, signed the receipt, “ Davis Pearson per Eobert M. Lindsay.” The only mine from which Pearson could furnish coal to the association was one belonging to Davis Pearson & Co.; that firm furnished coal to the association to the amount of $21,472.29, from which they realized a profit.
    The contract with the government was filled and the business closed July 31st 1865; the value of the coal furnished the'government was $1,012,565.59; the profit of the association was $167,033.98; the portion paid to Pearson was $27,838.99.
    After closing the business Pearson paid one-half that amount to Tucker.
    There was evidence that this division with Tucker was in consequence of a previous arrangement between Pearson and Tucker. Tucker testified that the sum paid him by Pearson “was not under a previous arrangement, but as a voluntary gift.”
    Gideon Bast, formerly one of the firm of Davis Pearson & Co., and father of Emanuel Bast, one of the plaintiffs, testified:—
    “ I knew of this coal-contract from my son. He told me about the contract. Shortly after this I came to Philadelphia and broached the subject to Mr. Pearson at the office of Davis Pearson & Co. I said, ‘ Mr. Pearson, I understand that you have a large contract by,the government.’ He said, ‘ Yes, whereby we will make a good deal of money, but these boys don’t thank me for it.’ ”
    The master amongst other things reported:—
    * * * “ There is no evidence that from the awarding of this contract by the government, in March 1865, until the death of Davis Pearson, any claim was ever made upon him by his copartners for their pro raid share of the profits. Had such demand been made it could have been proved, if not directly, owing to the exclusion of plaintiffs as witnesses, certainly collaterally by the correspondence between Philadelphia, Ashland and New York, or otherwise. In February 1868, Mr. Bast retired, selling his interest to Taylor & Lindsay.
    “ In July 1868, Mr. Pearson died, and in November 1869 (four years and three months after the winding up of the contract), this bill is filed against his executors, claiming a pro raid share of the profits in that enterprise.
    “ There is no doubt whatever that the plaintiffs to this suit were fully aware of the fact that Mr. Pearson was a member of the association (which fact was communicated to them by Mr. Pearson himself before he went into it), formed to supply the government contract, and that they assisted the association by sales of coal. It is also clear that they never entered any protest or objection against Mr. Pearson becoming so associated. It also appears that nearly three years after the conclusion and winding up of this association, to wit, in February 1868, Mr. Emanuel Bast, one of the plaintiffs here, retired from the firm of Davis Pearson & Co. by selling his interest therein to Robert M. Lindsay and Robert Taylor for $20,000; the agreement executed by him at the time containing also the following language: £ I do hereby accept from Davis Pearson & Co. the sum of $24,146.50, which amount is in full for my one-third proportion of the capital of said firm of Bast & Pearson and Davis Pearson & Co. These sums, amounting to $44,146.50, cancel all my claims upon the firms of Davis Pearson & Co. and Bast & Pearson.’ The document contains no reference whatever to any existing or contemplated claim against Davis Pearson or Davis Pearson & Co., for any share of the profits arising from the government contracts, which profit had been realized and passed to the credit of Davis Pearson nearly three years before, with the full knowledge of Lindsay, and at least the constructive knowledge of Taylor & Bast.
    “ It also appears that all money advanced to the association by Davis Pearson for the purchase of coal to fill the government contract was so advanced from the private means of Davis Pearson and not of Davis Pearson Sy Go. It is in evidence that one-half the profits acquired by Davis Pearson were paid to Mr. John Tucker, but whether by previous arrangement with Mr. Tucker, is a question upon which the evidence conflicts ; and is immaterial to the issue, excepting so far as to illustrate the fact that Mr. Pearson deemed himself as having absolute control of said profits. * * *
    “ By the articles of copartnership admitting Lindsay & Taylor to the firm of Davis Pearson & Co., it appears that when this government contract was entered into Lindsay & Taylor each owed Bast & Pearson $20,833.33, which they were required to pay out of their accruing profits in the business of the concern, with legal interest on the same. This government contract would have wiped out over $9000 of their joint indebtedness, yet it is not shown they made any application therefor, or that Mr. Bast manifested any anxiety to collect the debt due him.
    “ It is proper to consider whether any reason existed why Mr. Pearson entered into this contract alone, and what that reason was. It is abundantly proved by the evidence of persons in the trade, and must he conceded to be the fact without regard to testimony, that this was a contract which involved extraordinary risk. It was to supply a government engaged in war, and in the midst of active operations, with coal for three months from date, to be paid for in certificates of indebtedness selling at a discount and redeemable in a depreciated currency, fluctuating with the vicissitudes of the war, the profit on the contract depending exclusively upon the success of the arms of the government. It is not unreasonable, therefore, to suppose that Mr. Pearson, who was a gentleman of large means, was willing to assume the risk, advancing no funds but his own and using none of the capital or stock of his firm for which the firm was not paid a higher rate than they could have obtained from any other party; for it must be remembered that the contract to supply the government was at a fixed rate per ton, and Davis Pearson was the bondsman who guarantied that it should be so supplied for three months, whereas the coal supplied by Davis Pearson & Co. was to be paid for at 25 cents per ton above the market rates, which market rates of course were at all times regulated by the vicissitudes of war and the fluctuations in the money market. In the latter case the profit was a certainty, in the former it was at best a risk, and if the plaintiffs had elected to supply the association in preference to supplying the government, it would perhaps have been an exercise of sound and prudent judgment under the circumstances.
    “ There was another reason for Pearson being solely interested.
    “ Mr. John Tucker testifies that he thinks Mr. Pearson’s chief object in bidding for the contract, was to teach the parties to the combination, that when future bids were to be made he could not be entirely ignored. He underbid the combination, and when the contract was awarded to him, or rather to his agent, he doubtless deemed himself bound to carry it out without incurring any risk for his copartners.
    ■ “ Upon this statement of facts proved by the testimony in the case, it would be difficult to apply any principle of law or of equity which would entitle the plaintiffs to a share in the profits realized from this transaction by Mr. Pearson. * * *
    “ The law may be stated to be ‘ that a partner cannot, either openly or secretly, lawfully carry on for his own benefit any business in rivalry with the firm to which he belongsbut I know no rule which prevents a partner engaging at his own risk of profit and loss, in an enterprise which was in either event to bring profit to his firm, and from which enterprise his firm would obtain no profit, unless he did assume the risk. Mr. Pearson did nothing ‘ clandestinely,’ or ‘ behind the backs’ of his copartners. He obtained no advantage ‘ at the expense of,’ or by ‘ throwing any burden upon’ his copartners. There was ‘ no fraudulent concealment.’ He did nothing which ‘gave him a lias against the due discharge of his trust or confidence towards tha plaintiffs;’ on the contrary he placed himself, at his own risk, in a position which must have biassed him in their favor.
    “ Admitting that the boná, fides and the fiduciary relation existing, required that Mr. Pearson should not engage in the business of selling coal, except as a member of his firm, still the long-continued silence and neglect of the other partners on the subject of their claim, is fairly open to no other explanation than that there was a mutual understanding upon the subject. Add to this the acts of Lindsay in making the entries and signing the receipts, the act of Pearson in reference to Tucker, and the acts of all in reference to the retirement of Bast, and the circumstances cannot be reconciled with the theory of a joint interest; but I am drawn to the conclusion that there existed no difference of opinion among the parties as to Mr. Pearson being exclusively interested. I report that the bill should be dismissed with costs.”
    Exceptions were filed to the report.
    Their exceptions were dismissed at Nisi Prius, and the report confirmed.
    The plaintiffs appealed to the court in banc, and assigned the confirmation of the report for error.

      W. H. JRawle and W. L. Hirst, for appellants.

      F. C. Brewster, Attorney-General, and E. Olmsted, for appellees.
    One partner may carry on the same business with his firm, where there is no' conflict; Story on Partnership, sect. 178, 179. The conduct of the other partners may raise a presumption of assent: Ex parte Harris, 1 Rose’s Bankruptcy Cases 437; Jackson v. Sedgwick, 1 Wilson’s Ch. C. 297; Cragg v. Ford, 1 Younge & Collyer 285. Knowledge will be imputed when a proper investigation would have led to a discovery: Sadler v. Lee, 6 Beavan 324.
   The opinion of the court was delivered, January 29th 1872, by

Thompson, C. J.

A careful consideration of the master’s report, and the exceptions thereto, present very clearly, we think, a case wherein one partner, the defendant’s testator, if he meant what they claim he did, attempted to realize profits for himself exclusively from and out of the business and capital of the firm, without authority from his copartners, and against the law of partnership generally.

There is always an implied obligation among partners “ to use the property of the firm for the benefit of those whose property it isCollyer on Part., § 179. So is it also an implied duty without any stipulation on the subject, that every partner shall abstain from engaging in any business which will “necessarily deprive the partnership of a portion of the skill, industry, diligence or capital which he is bound to employ thereinStory on Part., § 177. These are general principles regulating the duties and relations of partners, yet they may define them otherwise if they choose, provided they violate no positive law. In the absence, however, of special provisions, each partner is in a fiduciary relation to his copartners, and must devote all his energies for the promotion of the firm exclusively, and account for all moneys received by him in and through its legitimate business. These being the duties and obligations of every member of a partnership, he who claims exemption from them must show that it exists either in the terms of the organization, or by the assent of all his copartners. It must, therefore, be clear that partners have yielded their right to the labor of one of their fellows, or of profits earned in the business, before they can be estopped from claiming them.

We do not mean to discuss in detail the testimony reported in the case, in testing the accuracy of the master’s conclusions from it. To some extent we must treat it in general views. We need not argue to convince, but must investigate so that we may be well convinced ourselves of the proper conclusions to be deduced from the testimony. This we have done, and the result is, we find no reservation in the articles of partnership establishing the firm of Davis Pearson & Company, which allows any member of it to contract and do business for his own sole benefit, in the business of the firm, or elsewhere. Nor do we discover any express assent of the members of the firm otherwise, to that effect, in favor of Davis Pearson, for whom it is claimed by the appellees. The opposite, it seems to us, is plainly inferable from the testimony of Flubacher, the principal clerk of Davis Pearson & Co., and from other sources. According to him, a consultation was had between Davis Pearson and R. M. Lindsay, the only other resident partner at the time, after the former had ascertained how a bid might be put in for the government contract for coal, and be successful against other coal companies intending to bid, and it Was agreed to bid for it in the name of their clerk Flubacher. The bid was made out at their oflice and put in by Flubacher, and the contract was awarded to him. A subsequent arrangement was made, by which several other companies became partners in the contract, and it was assigned to one Joseph C. Wright, as the agent or actuary of the association.

We have considered the testimony of Flubacher,: on this branch of the case, with great care, and we discover no evidence of any assent whatever, by the members of the firm of Davis Pearson & Co., that Davis Pearson was to be the contractor with the .government for the contract for himself, or that he was authorized so to contract with the association. Neither acts nor words in evidence, raise such an inference against his copartners. On the contrary, up to the time of the award of the contract to Flubacher, everything was done in the ordinary mode of .transacting business.in' the firm. The resident partners consulted together, prepared the bid their clerk was to put in, and it was a matter inquired of by Pearson, whether the business of the contract could all be done in their office. This looks like anything else than an individual contract. But again : Flubacher was the clerk of the firm, not the servant of Pearson. In the absence of qualifying testimony that he was to bid for a particular member of the firm, the presumption would undoubtedly be that he acted for the firm, and not for one of its members. This would assuredly give the contract to the firm. But all this was done in the absence of Bast and Taylor, and even if Lindsay had assented to all that is assumed, it would not hind his absent copartners, who gave no assent precedent or subsequently. We are looking for an express assent that Pearson should contract for his own benefit, and alone share with the associated coal companies the profits to be made out of their contract to furnish coal to the government under the award to Flubacher. A few of the grounds for the assumption by the appellees will be noticed.

The most prominent of these is, that Pearson signed the articles of association of the coal companies in his own name, and not in that of his firm. In the absence of any authority given him to do this, the theory is, that he did it to save from possible loss his partners, if the adventure should prove a losing concern. But as this was not communicated to his partners, and not assented to by them, it would not entitle him to take all the profits. But this was surmise at best, and an unreasonable surmise. It was not likely that the contract would prove hazardous, or a failing adventure, unless the government should be overthrown by the rebellion, a result not believed in or feared by anybody at the time. The coal-mines were in the hands of the associators, from which any such amount of coal as was required, could be procured. The wants of the government were pressing, and competition was impossible, for such an amount as was required, as rapidly as it was wanted. There was nothing, therefore, to prevent the associators from making profits if they chose, and as they did. The department certificates given in payment of coal, although at times slow of negotiation, were no real hazard, and was a fact most probably never thought of in making the contract, and resulted in no loss, or but little, and gives but slight support to the presumed self-sacrificing theory set up, that Pearson signed his own name instead of that of his firm to save his partners from the danger of eventual loss. Indeed, there is no evidence in the case to show knowledge of the partners that he had so signed the articles of association. Bast and Taylor were absent, and it is not shown that they ever knew it until after this contest arose. Nor is there any evidence that even Lindsay knew it. Under no circumstances could they be presumed to have assented to what they did not know.

Another matter relied on, is Lindsay’s signature to a receipt for Davis Pearson, for a portion of the profits of the contract of the association with the government. It is probable that as Pearson alone had signed the contract, although unknown and unauthorized by his copartners, the recéipt was put in that form by the clerk or cashier of the association, Mr. Wright, to accord with this fact, known doubtless to him, as he had the possession of the papers. Lindsay may too be presumed to have thought that the form of the receipt could not affect his firm in its right to profits, especially after having furnished the coal from which they were realized.

He might well conclude that if Pearson received the profits in his own name, it would furnish no reason why he should retain them. This could not directly result from the act, nor alone, was ”it a circumstance to presume assent to the action of Pearson for his own benefit, and we do not see anything in the testimony which aids it. Certainly not as against those knowing nothing of it. Lindsay must have known that the associated companies regarded their'firm as co-contractors. He must have seen the books when the receipt was given, if not at other times, and they showed that his firm was credited with the profits, and not Davis Pearson, and thus he probably believed the form of the receipt an unimportant thing, as it was, in our judgment. It did not estop him, nor any other copartner, from asserting the truth in the case. Many better reasons might be given for Lindsay’s receipt in the form it was given, than that he meant to do an act, or admit a fact, tending to cut himself out of four or five thousand dollars, his share of the profits. With equal force, these views apply to the two entries made by Lindsay in Pearson’s private books. These acts, standing against the rule of law, which bound Pearson to operate and contract only for the benefit of the firm, weigh but little. They were all equivocal, and also without the knowledge of his copartners. The significant fact against all this is, that these profits were derived, from the business, property and capital of the firm, and by the labor and skill of the partnei’s. Although it is true, in one sense, that Davis Pearson furnished money to carry out the contract, he furnished it to his firm and had credit on their books for it. Thus the firm became debtor for the amount and took credit for the advance to the association. Nothing could be more indicative of an intent to act for the firm than this. Further: against this theory of Davis Pearson’s title to these profits, are the facts that all his co-associators testify that the firm of Davis Pearson & Co. was their partner, not Davis Pearson individually. That they so understood it, is further evidenced from the fact that the representatives of the companies in charge of the business, consulted Lindsay about furnishing coal equally with Pearson, especially when the latter was not present. Again, the testimony of Gideon Bast, proves Pearson’s admission to the fact, that the profits to be made were to be for the firm and not himself. “I said to Mr. Pearson,” says the witness, “ I understand you have a large contract by the government. He said yes, whereby we will make a good deal of money, but these boys don’t thank me.” He did not say, I shall make a good deal of money, but we will. The expression evidently alluded to his partners. His firm as a unit was to make the money, not a portion of it. Nor is it credible that he meant, that the “ boys were only to share with him the extra twenty-five cents per ton for coal above the ordinary price of coal which the association agreed to charge. This would only give to Lindsay and Taylor, each owning a sixth interest in the firm, about $107 profits each, and himself, owning a third, twice that amount. Was this what he intended to describe as the “ good deal of money” they were to make ? It is inconceivable that a large operator, and a wealthy man, could have meant this by the words used.

It is claimed that the silence of Pearson’s copartners about their profits for three years, is some proof that, they did not expect to share in them. By itself, it is nothing, absolutely nothing. Does it help to interpret any other act or acts in the aspects claimed ? We have considered this, and we think it does not. Circumstances to amount to proof, must point to and bear upon the facts to be proved, and be inconsistent with any opposite theory. A hundred reasons might account for this delay, just as satisfactorily, and more so than the one supposed. Pearson remained in the firm up to the time of his death, which occurred on the 21st of July 1868. No final settlement had ever taken place between the members of the firm, and it was not an unreasonable presumption, or unnatural, that the younger members, knowing their money to be safe in his hands, awaited a period of final settlement, in confidence that the matter would be fully accounted for then. It will not do to hold their rights concluded by such a delay. Delays are common, even where much larger sums than that involved in this controversy, is in the hands of one party belonging to another. Whether the parties were silent on the subject among themselves or not, we know not, as death has fallen on one of them, and this closes the lips of the other partners. We think this principle is of little account.

In conclusion, the name in which these profits were received, amounts also to little against the name and fact in which they were earned, and which the defendants’ testator must have known as a member of the association and firm both. His disposition of half of them by gift to Mr. Tucker, for the latter, in his testimony, repudiates any precedent contract to that effect, is no evidence of ownership, nor does it bind the firm. If he choose to give them away, it would not release him from accountability for them. His generosity must be at his own expense. He was a trustee for the firm, and could not legally apply the funds without the consent or assent of his copartners to anything but the firm business. The disposition he made of half these profits was not so applied. From a full consideration of the testimony, and the master’s report, we think the latter erred in so finding the facts from the testimony as to recommend a dismissal of the plaintiffs’ bill, and that the court erred in their pro forma decree dismissing said bill.

And now, January 29th 1872, the decree in this case dismissing the plaintiffs’ bill, is reversed, and the same is hereby reinstated, and referred to the former master, Charles H. T. Collis, Esq., to state an account between the parties to the bill. The costs to abide the final decree of the court.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Eby’s Appeal.
    1. Where neither the parties nor subject-matter are within the jurisdiction of a court, its judgment has no effect.
    2. Under Act of April 6th 1859 to authorize service of process on a defendant beyond the jurisdiction of a court of equity, the subject-matter must either be within the jurisdiction or must be brought within it by service on a “ principal defendant.”
    3. Land in Elk county is not a “ subject-matter” within the equity jurisdiction of the Court of Nisi Prius.
    4. Under the Amendments of 1864 to the Constitution, the title is part of an act.

      5. The Act of April 6th 1859 (service of process in equity on defendants not residing in the jurisdiction, &c.), examined and construed.
    January 4th 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Appeal from the decree at Nisi Prius: Of July Term 1870.
    The bill in this case was filed, April 18th 1870, by Ann W. Eby by her next friend, &c., against John P. Cowan.
    The bill set out that the plaintiff had been the wife of Joseph Gonder, deceased, and was devisee, &c., of all his real and personal estate; that Gonder and Cowan, the defendant, had become the purchasers of five tracts of land in Elk county, Pennsylvania, the purchase-money for which Cowan had represented to be $2400, and on account of it Gonder had paid Cowan $1224.50, but the consideration for the land was but $900; that Cowan had sold four of the tracts, and she, not being able to ascertain from the records that he had sold the fifth, charged that Cowan still held it. She averred that, the defendant had resided in New York for many years, and had not been a resident within the jurisdiction of Pennsylvania since 1859, &c.
    She prayed for a decree against Cowan to repay the excess of Gonder’s proportion of the purchase-money, to account for the proceeds of the land sold, and execute a conveyance to her of the tract not sold, and for further relief.
    On affidavit that the defendant resided in New York, the court, on the 30th of April 1870, ordered that the bill, &c., should be served on the defendant in New York.
    The service was ordered under the Act of April 6th 1859, § 1, Pamph. L. 387, 1 Br. Purd. 598, pi. 51, which provides, that it shall be lawful for the court in any suit in equity in this Commonwealth, “ concerning goods, chattels, lands, tenements or hereditaments, or for the perpetuating testimony concerning any lands, tenements and so forth, situate or being within the jurisdiction of such court or concerning any charge * * * thereon, or where the court have acquired jurisdiction of the subject-matter in controversy by service of its process on one or more of the principal defendants, to order and direct that any subpoena or other process to be had in such suit be served upon any defendant therein, then residing or being out of the jurisdiction of such court wherever he may be found, and upon affidavit of such service, to proceed as fully and effectually as if the same had been within the jurisdiction of such court.” It was also provided that such defendant should be served with a copy of the order and the bill, or a statement of the substance of the proceedings, &c.
    On the 21st of September, proof of service of the bill and order was filed; and, December 10th, on motion of the defendant’s solicitor, the order of service was vacated, and the service of the bill was set aside.
    The plaintiff appealed to the court in banc, and assigned the order vacating the service, &e., for error.

      G. Bull, for appellant.
    The Act of 1859 is constitutional: 1 Bl. Com. 160; Commonwealth v. McWilliams, 1 Jones 61; Norris v. Clymer, 2 Barr 277; Commonwealth v. Hartman, 5 Harris 119; Sharpless v. Philadelphia, 9 Id. 147.

      A. V. Parsons, for appellee.
    The Court at Nisi Prius had no jurisdiction over the land, it being in Elk county: Hottenstein v. Clement, 5 Wright 502; Cassell v. Jones, 6 W. & S. 552; Hays v. Penna. Railroad, 5 Harris 9; Crawford Co. v. Erie Railroad, 8 Casey 141; Commonweath v. Baroux, 12 Id. 262.
   The opinion of the court was delivered, January 16th 1872, by

Sharswood, J.

It is certainly important that the true construction of the Act of Assembly of April 6th 1859 (Pamph. L. 3 87) should be settled. It provides for the service of process in' certain cases' in • equity, upon defendants not resident or found within the jurisdiction of the court. Upon the broad interpretation of the act here contended for, defendants not within the jurisdiction of the court can be served wif«h process, and of course be bound by the decree within the Commonwealth in all cases of equity cognisance. If such a construction does not impinge on the Constitution it certainly violates one of the first principles of law — which denies effect to a judgment when neither the parties nor the subject-matter are within the jurisdiction of the court. To such a judgment, sentence or decree no extra-territorial effect is accorded. As this must be conceded to be so — and there is neither person nor thing within the jurisdiction on which it can be' enforced — it must be without legitimate end or purpose. Such a proceeding, after a long sleep, may wake up against some person or thing accidentally brought within its reach, and upon which it may suddenly and unexpectedly pounce. But surely no such design is to.be imputed to the legislature. We are required by every sound canon to give such a construction to the statute as is reasonable and conforms to the general rules and principles of the law. The act provides that it shall be lawful for any court of this Commonwealth having equity jurisdiction in any suit in equity concerning goods, chattels, lands, tenements or hereditaments, or for the perpetuating of testimony concerning any lands, tenements, and so forth, situate or being within the jurisdiction of such' court,” to order and direct that any subpoena, subpoenas or other process to be had in such suit be served upon any defendant or defendants therein, then residing or being out of the jurisdiction of such court wherever he, she or they may reside or be found. It is contended that the clause “ concerning goods, chattels, lands, tenements or hereditaments” is without limitation, and that the words “situate or being within the jurisdiction of such court” apply only to the latter part of the sentence, “ for the perpetuating of testimony concerning any lands, tenements, and so forth.” We think, however, that it is very clear that “ the goods, chattels, lands, tenements or hereditaments” spoken of in the clause were intended otily to be such “ as are situate or being within the jurisdiction of such court.” This is further evident by the provision following, “ or concerning any charge, lien, judgment, mortgage or encumbrance thereon,” that is, on lands or tenements situate or being within the jurisdiction of such court. If the first clause is to have the effect claimed for it, it would include the two which follow, and render the limitation on the power in those special cases ineffectual — for, if the court are to have the power in all cases “ concerning goods, chattels, lands, tenements or hereditaments,” surely eases “ for the perpetuating of testimony concerning lands, tenements, and so forth,” or “ concerning any charge, lien, judgment, mortgage or encumbrance thereon,” fall within the comprehensive words “ concerning goods, chattels, lands, tenements or hereditaments.” If we read further, we shall find the legislature still careful to preserve this feature of the law — that the court shall have jurisdiction of the subject-matter, for it goes on to provide that the act shall extend to cases “where the court have acquired jurisdiction of the subject-matter in controversy by the service of its process on one or more of the principal defendants.” This limitation is equally ineffectual, if the power of the court embraces all cases “ concerning goods, chattels, lands, tenements or hereditaments.” To save this legislation, then, from being unreasonable if not senseless and absurd, we must hold that to authorize a court having equity jurisdiction, to exercise the power conferred by this act, the subject-matter of the suit must either be itself within the jurisdiction of the court, or must be brought within its jurisdiction by the service of its process on one or more of the principal' defendants.

The act in question is entitled “ An act to authorize execution of process in certain cases in equity concerning property within the jurisdiction of the court and on defendants not resident or found therein.” However it was in England, where the title was held to be no part of a statute, indeed was commonly framed by the clerk of Parliament after the bill had passed, without any vote being taken upon it, certainly since the first amendment of the Constitution adopted in 1864, — Art. XI. sect. 8 — it is now necessarily a part of the act, and a very important guide to its right construction. It will be seen by the title the act relates to cases in equity “ concerning property within the jurisdiction of the court.” The other clause “ and on defendants not resident or found therein,” evidently refers to that other part of the act, “when the court have acquired jurisdiction of the subject-matter in controversy by the service of its process on one or more of the principal defendants.”

In this case there was but one defendant, and he not resident or found within the jurisdiction. The subject-matter of the suit was| certain lands in Elk county, Pennsylvania, not within the original jurisdiction of this court sitting in equity in Philadelphia, nor of course within the jurisdiction of the Court of Nisi Prius. The defendant is charged in the bill as the trustee of five tracts, four of which he had sold. Whether the title remained in Cowan or had been sold by him clear of the trust, neither the land nor its proceeds were subjects within the jurisdiction of the court. It follows that the motion to vacate the order for special service and set aside the service of the bill was properly granted.

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


text:
    Savage et al. versus Everman.
    1. “Accord and satisfaction” is a good defence to a proceeding on a judgment.
    2. A defence which has arisen since a judgment, may be set up in a subsequent proceeding.
    3. An agreement to accept something collateral to a debt, is without consideration and not binding; it is made effectual by acceptance.

    4. Accepting a less sum of money than that due is not a discharge.; but if it may be advantageous, the court cannot measure the extent of the advantage.
    5. An agreement to give a less sum for a greater, if the time of payment be anticipated, is binding.
    6. The delivery of specific articles is satisfaction of a money debt; the law intends that they are more valuable than the debt to the creditor accepting the arrangement.
    7. A debtor in Pennsylvania agreed to convey, and his creditor to accept, land in New Jersey, in satisfaction of his debt. To effectuate the agreement he went into New Jersey, submitted to service, judgment was rendered against him by default and in pursuance of the agreement, the creditor purchased the land at sheriff’s sale,under the judgment, at a less sum than the debt. This was a good defence in an action upon the judgment for the balance.
    8. The sale by the sheriff was a formal method to pass the title and the price was of no consequence.
    9. The defendant under the agreement might have allowed the creditor to purchase at a nominal sum.
    10. Generally the Supreme Court will enter judgment on the whole record as the lower court should have done; but where injustice might thus be done, the record will be remitted to the lower court for further proceedings.

      January 4th 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 75, to July Term 1870.
    This was an action of debt, to March Term 1868, of the District Court, brought by John W. Everman against John R. Savage and others, trading as. Savage, Martin & Co. The cause of action was a judgment by default in the Supreme Court of New Jersey, in a suit by the plaintiff against the defendants, for $810.47.
    In-the suit in the District Court, the defendants pleaded “Nil deberunt,” “Nul tiel record,” and “Payment with leave, &c.” They also pleaded specially, viz.:—
    “ That after th,e making of the said several promises (for the non-performance of which damages were recovered as is alleged by the plaintiffs) in the declaration mentioned and before the commencement' of this suit, it was agreed between the said John W. Everman, who was a resident of the state of Pennsylvania, and John R. Savage & Co., who were also residents of the said state, and who were the owners, &c., of certain real estate in the state of New Jersey, that the said John R. Savage, &c., should permit and cause to be effected a sheriff’s sale of the said real estate, and that the said John W. Everman should at the said sale purchase the said estate and receive the same, and the title of the said John R. Savage, &c., in full' satisfaction and discharge of the said several promises and of the sums of money due by reason of the said promises, and of all damages arising therefrom.
    “ And the defendants aver that to fulfil and carry out the said agreement, the said John R. Savage went into the state of New Jersey, and there accepted the service of a writ of summons for himself and his partners,.in a suit which had been commenced in the state last aforesaid, by the.present plaintiff against the present defendants, that the said suit was so proceeded in by the plaintiff, no defence being made by the defendants, that judgment was obtained, which is the same set forth in the declaration; and execution issued thereon, by virtue whereof a sale by the sheriff of Camden county, in the state of New Jersey, was had of the said real estate and'title, of the defendants, at which sale the plaintiff purchased the real estate and-title aforesaid, and then accepted and received the same * * * in full satisfaction and discharge of the said promises and of all the sums of money in the declaration mentioned, and of the said damages.”
    The plaintiff replied to the pleas; but at the trial, by leave of the court, withdrew the replication to the special plea and demurred
    “Eor that the first part thereof sets forth matter which is not pleadable against the record sued on, and the second part thereof does not aver payment after judgment rendered. And the said plea is wholly argumentative, and contains no traverse.”
    The court entered judgment for the plaintiff on the demurrer.
    On the trial, January 25th 1870, before Hare, P. J., • the defendant, under the general issue, offered to prove' the matters set out in the special plea.
    The court rejected the offer and sealed a bill of exceptions; under the instruction of the court, a verdict was rendered for th-1 plaintiff for $862.24.
    The defendants took out a writ of error. They assigned for error, rendering'judgment for the plaintiff on the demurrer, rejecting the defendants’ offer of evidence, and instructing the jury to find for the plaintiff.

      J. R. Mead and S. Sanson, for plaintiffs in error.
    The acceptance of a chattel in satisfaction of what is due is a discharge of the debt, though the chattel be of less value than the amount of the indebtedness: Littleton, § 344; Blake’s Case, 6 Reports 342. If a plaintiff accept the thing, though but for a moment, for that for which the other gives it, he cannot by his subsequent dissent get rid of it: Hardman v. Bellhouse, 9 M. & W. 596. The acceptance of a chattel irrespective of the sufficiency of its value, discharges an indebtedness on a simple contract if it be received as satisfaction: Sibree v. Tripp, 15 M. & W. 22; Blinn v. Chester, 5 Day 359; Reed v. Bartlett, 19 Pick. 273; Very v. Levy, 13 How. 345; Pennel’s Case, 5 Reports 117. There can be no averment in pleading against the validity of a record, though there may be against its operation: 1 Chitty Pl. 512; Biddle v. Wilkins, 1 Pet. 686; Lincoln v. Tower, 2 McL. 473; Hearn v. Kiehl, 2 Wright 147.
    The same defence can be made here to the judgment as could be made in New Jersey: Mills v. Duryee, 7 Crunch 481; Hampton v. McConnel, 3 Wheaton 234; McElmoyle v. Cohen, 13 Pet. 312; Baxley v. Linah, 4 Harris 241. Control is exercised- over judgments by the courts, guided by the principles of equity.

      G. Bull, for defendant in error.
    In a suit on a judgment in another state, the defendant cannot set up fraud, mistake or want of consideration: Evans v. Tatem, 9 S. & R. 260; Benton v. Burgot, 10 Id. 240; Baxley v. Linah, 4 Harris 241; Swan v. Scott, 11 S. & R. 155; Baker v. Lukens, 11 Casey 147. Parol evidence cannot be used to explain or deny the truth of a record: Selin v. Snyder, 7 S. & R. 172; Withers v. Livezey, 1 W. & S. 433; Buffington v. Burham, 4 P. L. J. 418; Clark v. McComman, 7 W. & S. 469; Gallagher v. Kennedy, 2 Rawle 163; McClelland v. Slingluff, 7 W. & S. 134; 5 Barr 469; Gardner v. Davis, 3 Harris 41; Musser v. Hyde, 2 W. & S. 314; Graham v. Smith, 1 Casey 323; Woods v. Wallace, 10 Harris 175. A parol release of a written obligation must be founded upon a sufficient consideration : Albert’s Executors v. Zeigler’s Executors, 5 Casey 50; Miller v. Hemler, 5 W. & S. 486; Kidder v. Kidder, 9 Casey 268.
   The opinion of the court was delivered, January 29th 1872, by

Sharswood, J.

Anciently, it seems to have been considered that nothing could be pleaded to an action on a judgment which was matter in pais and not of record. Thus even payment was held (30 Eliz.) not to be a good plea: Ordway & Perote’s Case, 2 Leon. 213.' Of course accord and satisfaction fell within the same category: Littleford v. LeMayn, Cro. Jac. 579. For remedy, it was enacted by the statute (4 Anne, c. 16, sect. 12), that “ where any action shall be brought upon any single bill, or where action of debt or scire facias shall be brought upon any judgment, if the defendant hath paid the money due upon such bill or judgment, such payment shall and may be pleaded in bar of such action or suit.” This statute, as to this and some other sections, was reported by the judges of the Supreme Court as in force in this state: 3 Binn. 625; Roberts’ Dig. 45. There is a similar statute in New Jersey: Gulick v. Loder, 1 Green 68. It is said in 2 Saund. on PL & Ev. 115, that accord and satisfaction cannot be pleaded under this statute. He cites 4 Moore 165, but that must be a mistake, as it contains nothing to the point. Whether under this statute or at common law, the American authorities, without a single exception that I can find, maintain the contrary doctrine — that accord and satisfaction is a good defence to an action or other proceeding on a judgment: Witterby v. Mann, 11 Johns. 568; Boyd v. Hitchcock, 20 Id. 76; Le Page v. McCrea, 1 Wend. 164; Brown v. Feeter, 7 Id. 301; Evans v. Wells, 22 Id. 224, 341; La Farge v. Herter, 11 Barb. S. C. Rep. 159; Campbell v. Booth, 4 Gill. 29; McCullough v. Franklin Coal Co., 21 Maryland 256; Reid v. Hibbard, 6 Wis. 175; Jones v. Rahcom, 3 Ind. 327; Farmers’ Bank v. Groves, 12 Howard U. S. Rep. 51. In the recent case of Maute v. Gross, 6 P. F. Smith 250, it was assumed, apparently without question, that such was the law in this state. There the defendants confessed a judgment in favor of the plaintiffs under a cotemporaneous agreement by them, that they would accept in satisfaction lubricating oil of a certain quality, according to sample. The only question was, whether oil of that quality had been furnished, and an issue had been directed to determine that fact. It is certainly within the spirit, if not the letter of the statute of 4 Anne, to admit as a good plea in bar whatever in law or equity amounts to a discharge and satisfaction of the debt secured by the judgment. A text writer of great respectability so states it: 2 Troubat & Haly 13, edition of 1853. The simple, intelligible and well-settled rule on this subject is, that wherever a defence exists, which has arisen since the judgment, and which could not therefore have been available at the time it was rendered, it may be set .up in any subsequent proceeding: Cardesa v. Humes, 5 S. & R. 65; Thatcher v. Gammon, 12 Mass. 270.

Upon this principle, the evidence offered by the defendants ought to have been received. . It was admissible under the plea of payment with leave to give the special matter in evidence: As no objection was made, we are bound to presume that due notice was given, or was waived. The matter contained in the offer could not have availed the defendants as an answer to the demand of the plaintiff in the original suit. All that took place before the rendition of the judgment was a mere accord without satisfaction. An agreement to accept something collateral to the debt is without consideration, and therefore not binding. What made it effectual was actual acceptance by the plaintiff, and this was not until after the judgment: Hearn v. Kiehl, 2 Wright 147. Here, by the accord, a house and lot was agreed to be accepted in satisfaction. Afterwards, and in pursuance of this accord, it was actually conveyed to the plaintiff and accepted by him. It matters not how the title was conveyed, if it was under and in pursuance of the original accord. The learned judge below appears to have thought “ that facilitating the recovery of a just demand, the defendant merely hastened an event which was in contemplation of law inevitable,” While this, certainly, is a sound reason for holding that a mere accord founded upon such a consideration would not be binding, it is inapplicable when the accord is actually executed by acceptance in satisfaction. Even in this case, the accord must certainly be presumptively advantageous. Therefore, acceptance of a less sum in money than the amount due is not good. But if it may be advantageous, the extent of advantage the court is not competent to measure. By gaining time, the plaintiff may have secured a priority over others, and at all events he became possessed of something of value sooner than by the due course of law he otherwise would. Indeed, without an acceptance of service by the defendants in New Jersey, the only process by which their property in that state could have been reached, must have been something in the nature of a foreign attachment— a proceeding against ap absent debtor, and the policy of all laws is to interpose in such a proceeding more than the usual delays. It is well settled that the value of a collateral thing accepted in satisfaction of a cause of action is of no importance upon the question of its sufficiency: Hardman v. Bellhouse, 9 M. & W. 596; Sibree v. Tripp, 15 Id. 22. In Very v. Levy, 13 Howard U. S. Rep. 345, it is said by Mr. Justice Curtis: “ An agreement to give a less sum for a greater, if the time of payment be anticipated, is binding, the reason being, as expressed in Pennel’s Case, 5 Co. 117, that peradventure parcel of the same, before the day, would be more beneficial than the whole sum on the day: Co. Litt. 212 b, Com. Dig. Accord B. 2; Brooks v. White, 2 Met. 283. And when the time of payment is. not anticipated, the law deems the delivery of specific articles a good satisfaction of a money debt, because it will intend them to be more valuable than the money to the creditor, who has consented to the arrangement : Bac. Abr. Accord A.; Pennel’s Case, 5 Co. 117; Booth v. Smith, 3 Wend. 66; Kellogg v. Richards, 14 Wend. 116; Steinman v. Magnus, 11 East 890; Lewis v. Jones, 4 B. & C. 513.”

Nor can it be maintained with any show of reason, that because the property was purchased at the sheriff’s sale for a sum less than the amount of the judgment, the value of the thing has thus been legally ascertained, and that amount being credited on the judgment it stands therefore on the same footing as an acceptance of a part of a debt which cannot in law be a sufficient satisfaction of the whole. The sale in this case was a mere formal method of passing the title — the price being of no more consequence than would have been the consideration named in a deed by the defendants to the plaintiffs; he having in pursuance of his accord accepted the house and lot in full satisfaction of the judgment. It was not necessary that the defendants should offer to show that they had abstained from bidding. It is questionable whether they had any right to bid. They were perfectly safe under the accord in allowing the plaintiffs to purchase at any sum, even a merely nominal one. This course of reasoning evinces that the special plea was good, and as the demurrer admitted the facts to be true, the defendants below were entitled to judgment.

In general this court will enter such a judgment on the whole record as the court below should have entered. But we are not bound to do so. We may remit the record to the court below for further proceeding where it is possible that otherwise injustice may be done. The replication to the special plea appears to have been withdrawn and the demurrer filed while the case was under trial, and as the learned judge had ruled out the evidence offered, it is highly probable that this course was adopted on the strength of his opinion, if not at his suggestion. Under these circumstances we think the learned court below should decide whether the plaintiff below should have leave to withdraw his demurrer, and a venire de novo awarded.

Judgment reversed, and record remitted for further proceedings.


author: Agnew, J.

text:
    St. Mary’s Beneficial Society versus Burford’s Administrator.
    1. The charter of a beneficial society stated its object to be, to afford relief to its members and their families, to defray expenses of their funerals or such other cases of distress as should be defined by the by-laws; it authorized the society to ordain, &c., by-laws, &c., necessary for its government, and generally to do the matters, &c., lawful for them to do for the well-being of the society, &e. A by-law provided, that at the death of a member “ entitled to benefits,” ¡3560 should be paid to his widow or legal representatives. Held, that this provision was within the power of legislating for the well-being of the society.
    2. A by-law provided, that the steward should withhold benefits, when intemperance, debauchery, &c., were the cause of death. Held, not to be an unreasonable regulation.
    3. The regulation is not a determination of the right of the member; the member or his widow may call for a proper trial in the society; it merely restrains the steward from paying until the right is so decided.
    4. The provision that the widow of a member who dies from intemperance shall not receive benefits, is reasonable.
    5. A purely voluntary association may adopt such reasonable regulations as conduce to their interests.
    6. Such societies may prohibit their members from indulgence in vices which multiply disease and death among them, and thus diminish their general fund.
    7. Such provisions are not to regulate behavior, but to strike at acts on whose results relief is to depend. '
    8. The by-law withholding benefits in case of intemperance, &c., is not expulsion or total denial of benefits, but the loss of benefits, pro hac vice: the membership remains.
    9. The title to benefits remains and attaches to every ease of death not from the prohibited vices.
    January 8th 1872.
    Before Thompson, C. J., A&new and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the Court of Common Pleas of Philadelphia: Of July Term 1870, No. 224.
    This was an action of assumpsit brought March 1st 1870, by Michael Bagnell, administrator, &c., of Nicholas Burford, deceased, against the St. Mary’s Beneficial Society of the city of Philadelphia; in which a case was stated as follows :—
    “ Michael Bagnell is the administrator of the estate of Nicholas Burford, who died from intemperance on the 11th day of October 1869, the immediate cause of his death being mania-á-potu.
    Nicholas Burford was at the time of his death a member of the St. Mary’s Beneficial Society of Philadelphia, and the amount of dues charged him on the books of the said society was $1.10 at that date. The incorporation of the said society is admitted as May 1st 1861. By the second section of the act of incorporation it was provided as follows: “ The object of this society shall be to afford relief to the members thereof and their families in cases of sickness, to defray the expenses of their funerals, or such other cases of distress as shall be defined by the by-laws.” And by the first section of the same act it was provided as follows: That the said society should have power “ to ordain, establish and put in .execution such by-laws, ordinances and regulations as shall appear necessary and convenient for the government of the said society, not being contrary to this charter or the laws of the United States or of this Commonwealth.” And by the second section of the tenth article of the by-laws, adopted in virtue of the said last recited provision, the society provided that “ at the death of a member entitled to benefits, there shall he paid to his widow or legal representative the sum of sixty dollars.” And by the fourth section of the fifth article of the said by-laws it was provided that the stewards “ shall withhold all benefits when intemperance, debauchery, fighting, duelling or other disgraceful practices are the causes of disease or death.” If the court be of opinion that, under the said sections of the by-laws and of the act of incorporation quoted above, the said Nicholas Burford died entitled to the amount of $60, then judgment is to be entered for the plaintiff for $60, without costs; otherwise, judgment is to be entered for the defendants, with costs.”
    The court rendered judgment for the plaintiff on the case stated.
    The defendants took out a writ of error, and assigned the entry of judgment for error.
    The charter provided:—
    “ See. YI. A member may be expelled under such provisions as shall be declared in the by-laws.”
    The by-laws further provided that a member, before admission, shall answer the following questions affirmatively:—
    * * * ife * * *

    “ 4. Are you acquainted with our constitution and by-laws ?
    “ 5. Are you willing to support them as a brotherly member should, in case you are elected ?”

      T. J. Clayton, for plaintiffs in error.

      Henry Heed,, for defendant in error.
   The opinion of the court was delivered, February 5th 1872, by

Agnew, J.

The objects of this society set forth in their charter are, “ to afford relief to the members thereof and their families, in cases of sickness, to defray the expenses of their funerals, or such other cases of distress as shall be defined by the by-laws.” The society has power, by its charter, “ to ordain, establish and put in execution such by-laws, ordinances and regulations as shall appear necessary and convenient for the government of the said society, not being contrary to the charter or the laws of the United States, or of this Commonwealth; and generally to do all and singular the matters and things which may be lawful for them to do for the well-being of the society, and the due arrangement and ordering of the affairs thereof.” One of the by-laws provided that', “ at the death of a member, entitled to benefits, there shall be paid to his widow or legal representative the sum of sixty dollars.” This provision seems to have been made under the clause of the charter which reads: “ or such other cases of distress as shall be defined by the by-laws.” The charter contemplated as one of its expressed objects the burial of deceased members, but required no provision to be made for the widow or family after the death of the member. This provision was therefore wholly regulated by the by-law; and there was nothing in the charter which forbade the by-law from being made upon any condition neces.sary or convenient in the judgment of the society for its well-being, and the due ordering of its affairs. On the contrary, the propriety of such a condition fell within their express power of legislating for the welfare of the society. The payment of the sixty dollars to the widow was therefore made dependent expressly on the condition that the member at his death should be entitled to benefits. This being a case of distress defined by by-law, the only question which can arise upon the condition, to which the by-law subjects the title to relief, is whether it is reasonable or not; a question to which we shall come in a moment. Another by-law provides that the stewards “shall withhold all benefits when intemperance, debauchery, fighting, duelling or other disgraceful practices are the causes of disease or death.” This is not an unreasonable regulation, if we give to it the proper interpretation. It is a direction only to these officers to withhold payment, but is not a final determination of the right of the member, for if he or his widow deny the alleged ground on which the stewards withhold the particular benefit he demands, there is nothing in the by-laws that prevent a call for the determination of the question by a proper trial in. the society. The provision is, however, a very proper restraint on the officer to prevent payment until the right of the member is determined. The case before us comes up on an admitted state of facts upon which the judgment of the court is demanded. The statement admits the fact that Nicholas Burford, the deceased member, died from intemperance, and that the immediate cause of his death was mania-á-potu, and on this fact our judgment is prayed in connection with the by-laws already stated. The only question therefore is, whether the provision that a member shall not be entitled to the benefit conferred on the widow in case his death arises from intemperance, is a reasonable regulation. It would be difficult to construct an argument against its reasonableness. An association of this kind is formed for the benefit of its members. Being a purely volunteer association, it may adopt such reasonable regulations as are conducive to their interests. Now, unless we deny that temperance and regularity of habits have much to do with health and long life, we must concede that the value of the benefits to he derived from such an association depends greatly on the good conduct of its members. Then clearly the members have not only a right to choose their associates, but to stipulate also for the power to prohibit their indulgence in those vices and crimes which multiply disease and death among them, and thus diminish the general fund. It is not the purpose of the by-laws-to regulate behavior. Were that its true character, it might be said with reason that it was no purpose of the charter to regulate conduct, and that that must be left to divine and human laws. But this law strikes only at those acts which are the causes of disease and death. These being the events on which relief is made to depend, the law says to the member, it is only to your misfortunes that the purpose of the association extends, and if by your guilty or disgraceful fault you bring upon yourself disease and death, you exclude yourself from the provided relief. Where is there anything in the charter which forbids this? It is certainly not contrary to law.' The law commends and fosters all institutions which lead to the practice of virtue. The motive it presents to good conduct is worthy of notice. What more powerful incentive than a knowledge on part of the member that by a course of debauchery and crime he cuts himself off from the relief? The by-law therefore appears to be reasonable, and to promote the well-being of all the associates collectively and individually, and in no respect, I can discover, conflicts with the interests of society at large, the charter, or the laws of the land. In addition to this, each member pledges himself to obey these laws as a condition of his membership, by an express undertaking in signing the constitution and his promise to support the constitution and by-laws as a brotherly member. Nor is this pledge executed under the by-laws' until he shall have answered on his word of truth that he is acquainted with the constitution and bylaws. He therefore enters into membership fully impressed with its disabilities as well as its privileges. Having read and pledged himself to this by-law, as well as to all others, he knows beforehand that his title to the particular relief is forfeited when the disease or death upon which the claim depends is caused by intemperance, debauchery, fighting, duelling or other disgraceful practices. These observations show also that the argument that the by-law is a breach of the contract which is formed between each member and the association is unfounded. The association having the right under its charter to make the by-law for the well-being of the society and the proper regulation of its affairs, the regulation being a reasonable and proper one, contributing to the value of membership and the good of the association, and the member having accepted the by-law in express terms on his entry into membership, the by-law constitutes a part of the terms of the contract. Nor is the argument that it operates as a disfranchisement from membership more valid. It is not expulsion, nor is it a total denial of benefits which it is argued is the equivalent of expulsion, but it is only a loss of benefit pro hae vice. The disease arising from the guilty and prohibited fault draws to itself no benefit, but membership remains : and if disease or death the result of misfortune, afterwards overtakes him, the antecedent fault works no loss of the benefit belonging to the latter. It cannot therefore be said that the member is in any sense disfranchised. The title to benefits remains and attaches to every case of disease and finally to death not caused by the prohibited vices and crimes. Upon a survey of the whole case, we do not discover any ground upon which we can declare the by-law invalid. The judgment of the court below is therefore reversed and judgment is now entered for the defendants with costs.


author: Thompson, C. J.

text:
    Smith et al. versus Bouvier et al.

    1. When ajudge has explicitly announced in the general charge a doctrine applicable to the case ; he need not repeat the same thing in answer to points. He may refer to the charge for answer.
    2. The judge commits error, when he says nothing in his charge as to the subject of the points and does not answer the points, if they are material.
    3. Not answering points is not per se error; unless the points were material and ought to have been aifirmed, it is not error.
    5. BonS. fide time contracts for sale of stocks or other personal property are legitimate.
    5. When stocks are bought and sold, although upon speculation, if they are to be delivered, it is not a gambling transaction.
    6. Kames, not owning stock, employed a broker to sell stock for him at a named prioe, to be delivered at a particular day, the stock was sold and at the time of delivery, prices having risen, the broker borrowed stocks to meet the engagement. He afterwards, under instructions from Kames, bought at a higher rate to replace the stock borrowed. Held to be a legitimate transaction and that Kames was liable to the broker for the difference.
    7. Brua’s Appeal, 5 P. F. Smith 294, recognised and distinguished.
    January 5th 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J.
    Error to the District Court of Philadelphia: No. 198, to July Term 1870.
    This was an action of assumpsit brought May 12th 1869, by John V. Bouvier and M. C. Bouvier, trading as J. V. Bouvier & Co., against William F. Smith and Joshua Kames, trading as Smith & Kames, for money laid out and expended by the plaintiffs, brokers in New York, on the purchase and sale of stocks for the defendants.

      On the trial a question was raised as to the partnership of the defendants in the transactions; and also whether the plaintiffs had obeyed the defendants’ instructions; both were found against the defendants by the jury.
    The principal question was, whether the transactions were gambling operations.
    J. Y. Bouvier, one of the plaintiffs, testified: — “About 15th April 1869, I met Kames at Stock Exchange, New York ; it was suggested by one of us that he should do business with me, and I was to do it for Jg per cent. When we sold in advance of the purchase, I allowed Mr. Kames one-half of the interest I received. On 16th April 1869, he concluded to sell 1000 shares of N. Y. Central, short; he gave me a verbal order ; I sold as much as 200 shares first, and then 800 on same day, together 1000 shares, at $165. On April 17th 1869, it became necessary to deliver this stock to purchasers, and we had to go to our neighbors to borrow it. Mr. Kames, by the arrangement, was to place in my hands, as security, a margin of 10 per cent, on par value; Mr. Kames came to the office to hand my brother this margin ; on my returning thither I was surprised to see that Kames had only given my brother $5000, instead of $10,000; then I arranged with Mr. Kames to draw for the balance of the margin; he then said he was doing business for the firm of Smith & Kames, and instructed me to draw on them at Downingtown, Pa., up to 21st April. Instead of stock going down it advanced; about 3 per cent, of the $5000 margin became exhausted by the rise in stock. We then drew on S. & K. for $5000, April 21st 1869; wre placed the draft on S. & K. in Bank of Commonwealth for collection. On 24th April Kames returned to New York; he said the operation had gone against him, and he wished to sell a second thousand, which would advance his average 2-J per cent. I sold the second thousand on the same day to R. W. King, at $169f. We then returned to office — had not heard from draft — we were then to draw on Mr. K. for the additional 10 per cent, margin on this new transaction; this was on Saturday; on Monday we heard that the first draft for $5000 had not been honored; * * * On 27th April we bought in 2000 shares of stock, at an average of 174$; we had previously telegraphed them that we would do so. While Mr. Kames was in New York he told me to take back the stock and cover it at a fixed loss; this was put in writing; this is it.
    “ ‘Buy for my account, 2000 shares New York Central (a) 166, or in event of that stock going against me, take the 2000 shares in @ 175. Smith & Kames.’
    April 24th ’69.
    “ ‘ Take in’ means to buy — we did not buy at 166 because the stock did not fall, but rise; we took in the 2000 shares at an average of 174f; that is better than the order — after we had taken in the shares at an average of 174f, we at once notified Smith & Kames that we had done so, both by letter and by telegram ; we covered the stock at the market price. The stock rapidly advanced to a point at which the loss would have been about $70,000, if we had not bought in as soon as we did. The stock went to 218; on May 24th it sold for 194J. The net amount of loss is $9631.36.”
    On cross-examination, witness said: — “We were to charge him one-half commission and allow him one-half interest. We sold 1000 New York Central for them. I was to borrow the stock. Nothing was said about our delivering the stock to him. We did not expect to purchase stock for them. We were, by the agreement, to borrow it from our neighbors, and to deliver it. The margin was to be ten per cent, on par value of stock. We did not expect them to deliver the stock to us. We were to be made ■whole by the payment of the difference. It was a speculation. I reported to Smith & Kames the price at which I sold the stock. This was a ‘short sale.’ A short sale is not a sale with an intention not to deliver the stock. * * * I purchased the stock in the Long Room of New York Stock Exchange. The sessions of the Board are overhead. The Long Room is where the Stock Board meets. I gave notice to Smith & Kames, by telegram and letter, of buying the stock. I think I sent them' notice before night. I did not state when and where I would buy. * * * I made these purchases all in the same day.”
    By deposition, thirty-six bankers and brokers testified “ to the actual sale of 2000 shares of stock, New York Central Railroad Company, on the days and times stated in plaintiffs’ testimony, and at the then market rates; that the same were actually delivered and paid for; and, also, that 2000 other shares of said stocks were purchased by said witnesses, for account of plaintiffs, at the times and rates stated by the plaintiffs in their testimony, and that the then market rates were then paid by the plaintiffs, in full for said stocks, and the same actually delivered by the witnesses to the plaintiffs.”
    The plaintiffs gave evidence of sales of 2000 shares of New York Central Railroad stock to persons who were named, with amounts sold to each, 1000 shares at $165 per share, and 1000 at $169.75.
    M. C. Bouvier testified : “ I suppose in short sales the rule is that the interest accrues to the broker; that is the custom. The shares we purchased to cover the stock were delivered on the 28th of April to the persons from whom we borrowed the shares.”
    The evidence was very voluminous, principally as to the fact of the partnership of the defendants, and as to the plaintiffs carrying out their instructions in the stock transactions.

      The defendants’ points which were refused were: — ■
    2. “ If the arrangement was that the plaintiffs should sell the stock without its being delivered to the plaintiffs by the defendants for delivery to the purchaser, but upon the hazard of the stock falling below the price at which it was sold, in which event it was again to be purchased at the reduced price for the defendants’ account and profit, but, if it should advance in price, then the defendants to be liable for such advance, such transaction was one of chance and hazard, and contrary to law, and cannot be maintained and recognised in the courts of this Commonwealth, and the verdict should be for the defendants.”
    3. “ Nor did the fact that the plaintiffs went through the circuity of borrowing the stock for delivery to the purchasers, in order to keep the transaction as between the plaintiffs and defendants open until the stock should advance to 175, or be ordered by the defendants to be taken in, legalize the operation, as the purchase of the stock was to cover the short sales in. order to ascertain the result of the venture pursuant to the arrangement between plaintiffs and defendants.”
    Besides these, a number of points, not necessary to state in detail, were submitted by each party, on all the questions raised in the case.
    The court (Thayer, J.) charged :—
    * * * “ In regard to the lawfulness of the transaction upon which the plaintiffs’ claim is founded, I instruct you, that if the transaction was a speculation founded on a real sale and purchase of stocks by the plaintiffs for the defendants, which were actually sold and bought and delivered, then it is not a gambling transaction, and is not an unlawful contract, or one which the law refuses to recognise as a lawful contract.
    “ The distinction is between a real transaction, where stock is actually bought and purchased and delivered, and a transaction in which that is not contemplated at all, and where the parties agree, from the beginning, that the stock is not to be delivered, but that they are to settle their mutual wagers upon the price of stock by paying the difference between the sales at the different times. That is a distinction which is very easily appreciated ;■ the law' will not allow the time of the courts of justice to be taken up by settling people’s bets, or any other frivolous engagements in which they may choose to enter. But there is no objection to the transaction, if it be a real transaction, and a real delivery of the stocks is contemplated and effected, or that it was a speculation. It is the business of all people who engage in trade to speculate; all trade is based upon speculation, and no contracts are obnoxious to legal objection merely because they are speculations. * * *
    “ In the first place, I submit to you, that if the transaction was a speculation, founded upon a real sale and purchase of stocks by the plaintiffs for the defendants, which were actually sold and bought and delivered, then it is not a gambling transaction, and is not an unlawful contract.
    “And, secondly, I instruct you, if speculation in stock, by the purchase and sale thereof, is not a part of the regular business of bankers, then Mr. Smith is not bound by this transaction, and is not responsible for it unless he either authorized it or ratified it, or unless the firm, with his consent, engage in stock transactions, or unless by his previous conduct he had allowed Mr. Kames to use the firm name for such purposes, in such a way and to such an extent as to lead persons to believe that that was a part of the business of the firm.
    “ I instruct you, in the third place, that if the contract of the plaintiffs with the defendants was an absolute one, that they were not to buy any stock until it had reached 175, and if they had no discretion in the premises whatever, then of course they had no right to buy it in at less price. I put it to you whether that is a reasonable construction of the contract which was entered into; was it not rather that the plaintiffs were not to let the stock go beyond 175 before buying it in, and is not that a reasonable interpretation of the written order, in view of what was plainly the interest of the defendants, and of what occurred at the time ?” * * *
    Concluding his charge, the judge said :—
    “ I leave all the facts to you, under the following instructions :
    “ 1. If the transaction was a speculation founded on a real sale and purchase of stocks by the plaintiffs for the defendants, which were actually sold and bought and delivered, then it is not a gambling transaction, and is not an unlawful contract, or one which the law will refuse to recognise as a lawful contract.
    “ 2. If speculating in stocks, by the purchase and sale thereof, is not a part of the regular business of bankers, then Mr. Smith is not bound by this transaction, and is not responsible for it, unless he either authorized it or ratified it, or unless, by his previous conduct, he had allowed Mr. Kames to use the firm name for such purposes, in such a way and to such an extent, as to lead persons to believe that that was a part of the business of the firm.

      “ 3. If the contract of the plaintiffs with the defendants was an absolute one, that they were not to buy in the stock until it reached 175, and if they had no discretion in the premises whatever, then, of course, they had no right to buy it in at a less price, and the plaintiffs’ 3d point would be well taken; but is that a reasonable supposition ?
    “ Is that the contract which was entered into ? Was it not rather that the plaintiffs (as Mr. M. Bouvier says) were not to let the stock go beyond 175 before buying it in, and is not that a reasonable interpretation of the written order, in view of what was plainly the interest of the defendants and of what occurred at the time ?”
    The verdict was for the plaintiffs for $10,348.17.
    The defendants removed the record to the Supreme Court by writ of error.
    The errors assigned were — the answers to the points and the charge of the court.
    Some of the assignments were that certain of the points of the defendants were not categorically answered.

      A. Briggs, J. A. Simpson and F. C. Brewster, Attorney-Greneral, for plaintiffs in error,
    cited Brua’s Appeal, 5 P. F. Smith 298.

      P. Archer, Jr., and W. L. Hirst, for defendants in error.
   The opinion of the court was delivered, January 16th 1872, by

Thompson, C. J.

Having attentively listened to an earnest and able argument, to convince us of error committed by the learned judge who tried the case below, and a no less able argument to the contrary, by the learned counsel for the defendants in error, we have addressed ourselves assiduously to the task of determining, by principles of law, which party is right in the contest, and the following discloses the result.

The general charge has been considered in order to discover from it the force of special objections to it, as well as to determine whether its instructions were in themselves sufficient for the points propounded. The scrutiny has resulted in satisfying us of its unobjectionable character in both aspects. Certainly a judge who has explicitly announced a given doctrine or view, supposed to be applicable to a case trying, in the general charge, need not repeat the same thing in answer to points. He may refer to his charge for the answer. Error occurs where the judge has said nothing in his charge on the subject-matter of the points, and then neglects or refuses to answer specifically points material to the case. The failure to answer points is not per se error, and, unless the party propounding them can show that they were material and ought to have been answered as prayed, there is no error.

The charge before us, referred to for answers to points submitted by the defendants when examined, will be found to be very sufficient answers to the points raised. There was, therefore, no error in not answering them specifically. The condensation by the learned judge of the aspects of the case into three propositions, was a very satisfactory presentation of the matters to be considered by the jury, and were all sustained by the clearest principles. They will appear in the report of the case.

The main contention in the case, however, was not this, but whether or not the transaction, an ordinary purchase and sale of stocks through the plaintiffs as brokers, was or was not a gambling transaction, and one which should for that reason deprive them from recovering for money advanced and commissions earned. This, the learned judge instructed the jury, would be the character of a transaction where, from the beginning, it was agreed and understood, that the stock dealt for was not intended to be deliv-fe ered, but that the parties were to settle their mutual wagers on the prices of the stocks, by paying the difference between sales at different times. He further explained, saying, “ I submit to you, that if the transaction was a speculation founded upon a real sale and purchase of stocks by the plaintiffs for the defendants, actually sold, bought and delivered, then it was not a gambling transaction and not an unlawful contract.”

This was right, but it did not go far enough, according to the theory of the plaintiffs in error. They insisted that the jury should have been instructed that all purchases of stocks, with a view to re-sell and make profit on their rise, or contracts to furnish stocks on time, should be declared gambling transactions and illegal, not only between buyer and seller, but as to the brokers or agents through whom the sales and purchases had been made. This would make a great inroad into what has, for an indefinite period been regarded as a legitimate business, and would either destroy it altogether, or if continued, put the brokers at the mercy of those for whom they transact such business. Let it be understood that a broker has no power to recover either for advances or commissions, however honestly he may have dealt, „and there will be found enough persons whose easy consciences would throw their losses upon the shoulders of those who advanced the money and earned commissions in their service. It would be a very palpable wrong to the brokers who are licensed to do such business, if such were held to be the law. To this extent Brua’s Appeal, 5 P. F. Smith 294, never was intended to go. That case came before the court on the report of auditors, expressly finding that the notes in question were given for stakes or bets on the rise and fall of certain stocks — that neither party was to receive or deliver any stocks. The auditors said: “ Kauffman in effect betted that in twenty-five'days Harlem stock would sell at less than $60 per share; but viewed in the aspect of legal principles and precedents, the contract was one which the parties were free to make, and the obligations created by it, and the subsequent notes are in law untainted by any fraud and deceit, or want of consideration,” and therefore they held that the “ notes” should come in for a pro rata share of the assets of the decedent’s estate.

This we regarded as a “ most lame and impotent conclusion.” Having nothing to do but to administer the law against betting and gambling, we held the consideration of the notes illegal, and the contract incapable of enforcement. This result cannot be doubted. But we held in the same case, that stock-brokerage was not necessarily gambling. We said, “ the bond fide purchase of stocks no doubt can be conducted lawfully, and is generally so conducted without in the least trenching on the gambler’s province. * * * Bond fide time contracts about stocks and other personal property, seem from custom to be necessary in our country, and although such transactions may be greatly affected by the rise and fall of the market, yet they are not for this reason obnoxious to the objections made to the transactions we are now considering ; for in such case the losing party has something for his money, but the losing gambler nothing.”

The doctrine contended for here would place all stock contracts on the same footing, if making profits may be deduced as the motive of the parties buying and selling. When stocks are bought and sold, to be actually delivered, it is a very different case from that of Brua’s Appeal, supra, where the transaction was found to have been simply a bet or wager. In the one case the transaction is within the scope of a business everywhere recognised as legitimate; in the other, it is a gambling transaction, which courts will never exert their power to enforce, if not entirely executed by the parties.

Whether the transactions embraced in this case were bond fide, or were merely in a form to cover gambling transactions, after a full explanation of what constituted the true difference in law between them, was left to the jury to say upon the evidence, to which class they belonged. The jury found them to have been bond fide actual sales, and purchases of stocks to be delivered. 'As there was no error in these instructions, this result settled the defence against the defendants below and plaintiffs in error. The instructions on all the other questions raised here, were proper and such as the case required. We must therefore affirm the judgment.

Judgment affirmed.


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    Norris versus The City of Philadelphia.
    1. Under the Act of April 1st 1864 (Streets in Philadelphia), interest on award of damages is to be computed from the final confirmation of the report, not from its filing.
    2. The damages are not settled till the confirmation; until then the city is not bound to pay.
    3. The owner is not deprived of the use of his property before the confirmation.
    4. City v. Dyer, 5 Wright 463, remarked on.

      January 9th 1872.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Williams, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 177, to January Term 1871.
    The action in this case was debt, by Richard Norris against the City of Philadelphia, commenced December 8d 1869.
    On the 26th of October 1867, Richard Norris, presented a petition to the Court of Quarter Sessions of Philadelphia, setting out that under an ordinance of the City Councils, and notice from the Commissioner of Highways, Spring Garden street was about to be opened through his property, and prayed the court to appoint viewers to assess his damages. ' Viewers were appointed accordingly; they reported the amount of damages to the petitioner to be $40,500. This report was filed May 30th 1868.
    On the 5th of December 1868, the Court of Quarter Sessions set the report aside.
    The record was removed to the Supreme Court by certiorari.
    The Supreme Court ordered that “ the decree of the Court of Quarter Sessions setting aside the report of the jury, be reversed and the report reinstated, and that the record be remanded for further proceedings thereon according to law.”
    On the 19th of January 1870, the report of the viewers was confirmed.
    The action was upon the award of damages by the viewers.
    On the trial in'the District Court, before Hare, P. J., the plaintiff asked the court to charge:—
    “ That the plaintiff is entitled to recover interest on the award of viewers from the date of the filing the said award, and not merely from the date of its confirmation by the Court of Quarter Sessions.”
    The court declined so to charge, and instructed the jury to find a verdict for the plaintiff for the amount of the award of the viewers, with interest only from the date of its confirmation by the Court of Quarter Sessions.
    The proceedings were under the following acts :
    The Act of January 6th- 1864, § 1, Pamph. L 1130, 2 Bright. Purd. 1289, pi. 132, viz.:—
    “That whenever,'hereafter, the report of any jury assessing damages, for opening-or widening of any road or street in the city of Philadelphia, shall be finally confirmed by the Court of Quarter Sessions of the said city and county, the sums assessed as damages, against the owners of the properties found to be benefited by the opening or widening of such street or road, shall be and remain liens on the said properties against which they are severally assessed, for the space of six months from the said confirmation of such report,” &c.
    The Act of April 1st 1864, § 2, Pamph. L. 207, 2 Bright. Purd. 1290, pi. 134, which provides:—

      “ When said award is confirmed by the court, the street shall forthwith be opened by the proper authorities of the city of Philadelphia, and said city shall pay to the respective owners of the property damaged, or their legal representatives, the damages so assessed for said opening.”
    The verdict was for the plain tiff for $41,137.75, being the amount of the award with interest from the final confirmation of the report.
    The plaintiff removed the record to the Supreme Court, and assigned the instruction of the court for error.

      J. E. Gowen, for plaintiff in error, referred to Philadelphia v. Dyer, 5 Wright 468.

      G. D. Budd and C. H. T. Oollis, City Solicitor (with whom were W. P. Messiah and T. J. Worrell), for defendants in error.
   The opinion of the court was delivered, January 29th 1872, by

Thompson, C. J.

I cannot see any value in discussing the numerous cases arising under the peculiar legislation applicable to the recovery of damages assessed to owners of real estate taken for streets, roads, railroads and other public improvements. There is no uniformity in them, the legislation of which they are predicated being diverse.

We have, we think, a clear legislative rule in the Act of 1864, by which the present case must be ruled, and which saves all trouble of construction. The question here is, when did interest begin to accrue on the award of the viewers in this case, from the filing of the report, or from its confirmation ? The second section of the Act of 1864, among other things provides, “When said award is confirmed by the court, the street shall forthwith be opened by the proper authorities of the city of Philadelphia, and said city shall pay to the respective owners of the property damaged, or their legal representatives, the damages so assessed for said property. The city is certainly not required to pay, until confirmation by this act. That the obligation to pay cannot be enforced until confirmation, is thus so plain, that we think we need not argue the point. In fact the damages are not settled until confirmation. The award might be said to be ambulatory, or like a will before the testator’s death. It has form and shape, but is not obligatory. So is the award of the viewers under this act. Nor can the property be taken until that time, so that the owner is not necessarily actually deprived of its use before confirmation, although, as in this case, the effect may be to prevent its use. This is only one case however. Others may arise in which a profitable use may continue until the confirmation of the award, and there the rule would be inequitable to the party who is to pay the assessments.

Whatever has, or may be said of The City v. Dyer, 5 Wright 463, the fact is shown by a simple calculation of interest on the award, that interest was only allowed in the final judgment, from the confirmation of the award. ' Any person can satisfy himself of this by making the calculation from the papers on file. The result of the case was this and no more. It required an Act of Assembly to authorize an allowance of interest on a verdict before judgment: Kelsey v. Murphy, 6 Casey 340. Why should it not be so in case of an award like the one in question, before confirmation, which is equal to a verdict at least? We will not however pursue the subject further. We are all of opinion that the case was well decided below, and the judgment must be affirmed.