author: Mr. Justice Gordon

text:
    Berryhill versus Kirchner.
    1. A mortgage is the conveyance of an estate or property byway of pledge for the security of a debt and to become void on the payment of it.
    2. Where a mortgagor has parted with his estate, but the recorded title still remains in him, his mortgagee will take no title.
    3. The fact that such a mortgagor paid a portion or even the whole of the proceeds of the mortgage to the heirs, who owned the fee, or in relief of the estate, is of no consequence if the heirs were minors, and had no power to assent to such an encumbrance.
    4 The sheriff’s vendee of mortgaged premises stands upon the equities of -the mortgagee.
    5. Where one claiming to own the fee is in possession all parties in interest are presumed to have notice of all the necessary particulars of the title.
    6. Evidence by comparison of handwriting is not allowed as independent proof, and the comparison must be made by the jury and not by experts. Aumick v. Mitchell, 1 Norris 211, followed.
    November 3d 1879.
    Before Shajrswood, C. J., Mercur, Gordon, Paxson and Trunkex, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 279.
    Ejectment by John IT. Kirchner against Alexander Berryhill, for a lot of ground in the Fourth ward of the city of Allegheny.
    On the 8th of May 1866, Alexander Berryhill, Sr.-, was the owner of a lot of ground in Allegheny city, of which the premises in dispute formed a part. At that time he executed and delivered to Eliza Rector (now Eliza Barndollar), a deed for said lot. No consideration passed for said deed, and it remained unrecorded until the 4th of January 1868. It was claimed by defendant that on the 29th of June 1868, Mrs. Rector reconveyed said lot of ground to Berryhill, by deed recorded December 4th 1876. Berry-hill was in possession of the property when he made the deed to Mrs. Barndollar, and never left the possession, but continued there until his death, which occurred in September 1871. At the time of Berryhill’s death, his deed from Mrs. Rector was not recorded. On the 20th of May 1876, Mrs. Barndollar (formerly Rector), with her husband, executed a mortgage on said premises for $1350 in favor of A. L. McGeary, areal estate broker. No money passed on this mortgage until December 29th 1876, when it was sold and assigned to IT. S. McGeary. At this time the deed of Mrs. Rector to Berryhill had been recorded twenty-five days. Of the proceeds of this mortgage, $300 or $400 was given by Mrs. Barndoliar to Mrs. Elizabeth Hibler, wife of the guardian of the Berryhill heirs. Mrs. Barndoliar retained $150. A portion was applied to payment of some small liens against the property, and the costs of negotiating the mortgage. What became of the balance did not appear.
    The mortgage was foreclosed in default of payment of interest, and the premises sold by the sheriff to John H. Kirchner. At the sale, notice was given that the title to the premises was not in the mortgagors, but in the Berryhill heirs. At the time the mortgage was negotiated, some of the Berryhill heirs were in actual visible and notorious possession of the premises with their guardian, Samuel Hibler, and so continued until after the sheriff’s sale. Mrs. Barndoliar denied that she ever executed the deed of June 29th 1868. She acknowledged the signatures to the mortgage in evidence, and to her deposition.
    Defendant then offered to prove by WV T. Lindsay, an expert, that the signature to the deed of June 29th 1868, was made by the same person who signed the mortgage and deposition. This offer was objected to by plaintiff, and objection sustained by the court. (First assignment of error.)
    The plaintiff presented the following point, to which is appended the answer of the court:—
    That the plaintiff's title dates back to the date of the recording of the mortgage on which the property was sold, viz.; to May 21st 1876.
    Ans. “ That, as a general proposition, is affirmed, and the plaintiff has made out a good prima facie case to you, and unless the defendant satisfies you that this deed is genuine, and that notice was given and_lhat he was in possession as alleged, he cannot recover. If he/does satisfy you erf that, and you believe the money was put into/this very property for the benefit of the heirs, and they got the benefit of it, then your duty would be to find for the plaintiff.” (Fifth assignment.)
    The defendant submitted the following points, all of which the court refused
    4. If Kirchner knew, at the time he purchased, of the unrecorded deed of the defendant, the deed will take precedence. (Second assignment.)
    5. That if Kirchner purchased with knowledge of defendant’s unrecorded title, he became trustee of defendant. (Third assignment.)-
    7. If the holder of an earlier deed have it recorded before the sale to a vendee from one who had a recorded title of a subsequent date to deed unrecorded, the recording of the deed operates as notice. (Fourth assignment,)
    In the general charge, the court, Collier, A. L. J., inter alia, said:—
    “ It is claimed Mrs. Barndollar raised the money on this mortgage and applied it honestly to the payment of liens, and that she gave $300 or $400 to the wife of the guardian, who had these little children to take care of, and that the amount was not more than it was worth. I think if' that was honestly done, it would give a right in equity to the purchaser of this mortgage who paid his money, to whatever amount was honestly put into this very property for the benefit of these heirs and children. * * * (Sixth assignment.)
    “ If you find that the deed from Mrs. Rector to Berryhill was a genuine deed, and it was put upon record before McCreary purchased the mortgage, if he was the first purchaser of it, if it was given first to a broker and then transferred, and the deed was put on record before he purchased, and the defendant was in possession, old man Berryhill to the time of his death and his children afterward, then your verdict should be for the defendant, unless you believe that this money was put into the property and was reasonably expended on behalf of the property and the heirs. In that event, the plaintiff would be entitled to recover.” (Seventh assignment.)
    Verdict for plaintiff, and after judgment defendant took this writ and alleged that the court erred as set forth in the above assignments of error.

      J. McF. Carpenter and W. A. Stone, for plaintiff in error.

      Barton & Sons, for defendant in error.
   Mr. Justice Gordon

delivered the opinion of the court, Novem 24th 1879.

A mortgage is the conveyance of an estate or property by way of pledge for the security of debt, and to become void on payment of it: 4 Kent’s Com. 136.

If this definition of a mortgage be a true one, and we presume no one will doubt it, and if Mrs. Barndollar (formerly Rector), had parted with her estate in the premises in controversy previously to the 20th of May 1876, then it is certain she had, at that time, no estate to pledge and her mortgage was good for nothing.’ That the Berryhill heirs received from her a portion, or even all, of the proceeds of that mortgage, comes to nothing, for it does not appear that they assented to or indeed knew that Mrs. Rector had thus attempted to encumber their estate. Indeed it does not appear that these heirs were, at that time, sui juris ; that they had the power, even if they had the will, to assent to such an encumbrance. What then does it amount to, that she, of her own motion, made a gift to them of part of the money so raised, or paid it in relief of the estate ? She was in this but a volunteer and her mortgagee could claim no benefit from an act or acts of that kind. Had the Berry-hill heirs been of age at the time of the execution of the mortgage— had they been privy thereto, or perhaps had they afterwards, though ignorant of the mortgage at the time of .its execution, received the money knowing whence it came and how it was raised, they might have been estopped from setting up their title as against the mortgagee. But, of all this there is not one particle of evidence; on the other hand, it would seem from parts of the learned judge’s charge, that these heirs, or some of them, were minors — “little children,” and therefore incapable of the performance of an act that would estop them. The fifth, sixth and seventh assignments, so far as they embrace exceptions to th’e submission to the jury of this kind of evidence, are sustained.

The court was right in refusing to receive the evidence of an expert to prove that the signature to the deed, from Mrs. Rector to Alexander Berryhill, was made by the same person who signed the mortgage. This was but an attempt to prove handwriting by comparison with other signatures of the same parties, and was, therefore, not within the rulings of Ballentine v. White, 27 P. F. Smith 20, or Reese v. Reese, 9 Norris 89, but it does fall directly within the case of Aumick v. Mitchell, 1 Norris 211, wherein it is said, by Mr. Justice Paxson, “ evidence by comparison of handwriting is not allowed as independent proof. And the comparison must be made by .the jury, not by experts.”

The second, third and fourth assignments are not sustained; that the purchaser- at sheriff’s sale had notice of the conveyance from Mrs. Rector to Berryhill was of no moment if the mortgagee had no such notice, for the sheriff’s vendee stands upon the equities of the mortgagee.

Neither do I see how this could become important, for, when the mortgage was executed, and down to the present time, the Berry-hills were and still are in possession, therefore, presumptively, all parties in interest had notice of all the necessary particulars of the title, and hence, the main, if not the only, question in the case is, did Mrs. Rector execute the Berryhill deed, or was it, as the plaintiff contends, a forgery? The answer to this question, by the jury, must, so far as the evidence now appears, definitely determine this Case.

The judgment is reversed, and a new venire awarded.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Rowand versus DeCamp.
    1. Where a man exercises the citizen’s right to denounce the action of a public officer, it is unlawful for him to make a false and malicious charge of crime or misdemeanor in office.
    2. There is no obligation upon a citizen, when discussing the conduct of public servants in their official capacity and who speaks the truth, as he designs to be understood, and as he is understood by his hearers, to employ any prescribed form of expression or language. So long as he speaks the truth, in words meaning nothing else, he is not liable in damages, whether his language be chaste or vulgar, refined or scurrilous. The style of speech seems to be governed by the taste of the speaker and not by the civil law.
    November 11th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 4.
    Case by Archibald H. Rowand, Jr., against George W. DeCamp, for slander.'
    The plaintiff and defendant were citizens of the borough of Verona, Allegheny county, Pa., at the time of the uttering and publishing of the alleged slanderous words. The words published of plaintiff by the defendant, and upon which the plaintiff specially declared were those testified to by W. D. Houghteling, of January 4th 1875, aud were that Rowand, the■ plaintiff, was a “damned thief,” and also, that in another conversation with the same witness on a succeeding day, said defendant called the plaintiff a “thief.” Other witnesses, at other different times and places, heard the defendant make use of the same language, except that the defendant added that “if any of the borough,” meaning the borough of Verona bonds, “came into bis hands,” meaning the possession of Archibald II. Rowand, Jr., “he would steal them and run.away with them.”
    The defendant pleaded “ not guilty.” He contended, throughout the trial of the case, that he did not utter the words imputed to him of and concerning the plaintiff, but that if the jury should believe that any such words were spoken by him of the plaintiff, then they were spoken of said Rowand, as burgess of the borough of Verona, and were privileged.
    At the trial, before Collier, A. L. J., the defendant asked a witness- the following question: “ I wish you would state whether there has been a controversy in Verona borough, and between the people residing there, about the propriety of issuing bonds for local purposes tfiere. The court admitted the evidence under objection. (Seventh assignment of error.)
    The defendant also made the following offer: “ To prove by the witness on the stand, that the witness, in common with other citizens interested in the question of taxation in the borough oi Verona, in view of the threatened issue of a larger number of borough bonds, sought DeCamp and applied to him for the purpose of securing his aid in the resistance of the issue of these bonds, DeCamp, being himself a property holder and citizen in Verona; and that, in consequence of this intervention of DeCamp, a bitter controversy arose between the burgess, the plaintiff, and DeCamp, upon the subject of the issue of bonds, to be followed by other evidence showing that DeOamp became involved in this controversy with Rowand in consequence of this, and in pursuance of his employment by the citizens, and that the words spoken of and concerning Rowand, were spoken of him in his official capacity as burgess, threatening to issue these bonds, and involve the property and taxpayers in a large bonded debt — -this, for the purpose of showing the circumstances under which these words were spoken, and to rebut any presumption of personal malice, or malice on part of DeCamp towards Rowand.”
    Objected to, when the court said: “ We will allow you to show the circumstances under which these words were uttered at any time.” (Eighth assignment of error.)
    The following points were submitted by the plaintiff to which are appended the answers of the court.
    1. If the jury believe, from the evidence in this case, that the defamatory words, viz., that Rowand was “a thief,” “a damned thief,” were uttered and published by the defendant in the presence of William D. Houghteling, on January 4th 1875, and before any excitement had arisen respecting the erection of a town hall, then such communication, if the testimony of defendant himself is to be’believed, was not a privileged communication, and the plaintiff was entitled to recover
    Ans. “Affirmed.”
    2. The minutes of the borough council are open to the inspection of the citizens and property holders of the borough of Verona, and it was the duty of the defendant DeCamp, by examination thereof, to have possessed himself of the information contained in said minutes respecting the sale and purchase of said lots of ground for the erection of a town hall, and the issue of bonds, &c., before making the-statements that he, Rowand, was “athief,” “a damned thief,” and that “if the bonds came into his hands he [Rowand] would steal and run away with them,” either as an official or as a private citizen; and if the jury believe that said DeCamp did not make the necessary inquiries from said minutes, or from other sources, and that the defamatory words that he, Rowand, is “a thief,” “a damped thief,” and “if the bonds of the borough come into his hands he will steal and run away with them,” were-uttered and published by defendant respecting the plaintiff, then such communication is not a privileged communication, and the plaintiff is entitled to recover.
    Ans. “Refused.”
    3. If the jury believe that the words charged were uttered by defendant in reference to the issue of borough bonds, and in reference to the conduct of plaintiff in the sale of lots on which to erect a town hall, and in receiving the bonds of the borough in payment thereof, they are not privileged.
    Ans. “ Refused.”
    4. If the jury believe the words charged were privileged, and also that malice in fact has been shown, the verdict of the jury should be for the plaintiff.
    Ans. “Affirmed.”
    5. That the said Arch. H. Rowand, Jr., as burgess of the borough of Verona, did sell said lots of ground to said borough, receiving bonds in payment thereof; and if the jury believe that the defendant uttered and published the words charged of, and respecting the plaintiff, then such communication is not privileged, and the verdict must be for the plaintiff.
    Ans. “ Refused.”
    6. Unless the jury believe that the explanation that the words charged had reference to the bonds, and that there was a sufficiently clear and unequivocal explanation made at the time the words were uttered to prevent an erroneous impression, the verdict must be for he plaintiff.
    Ans. “Affirmed as to any .words spoken of the plaintiff notin his official capacity.”
    The following were the points of defendant with the answers of the court thereto.
    1. That it is a question of fact for the jury, under all the evidence, to find whether the alleged slanderous words, “ he is a thief,” or “ damned thief,” were spoken by the defendant of and concerning the plaintiff within one year preceding the 27th day of December 1875. If the jury do not find that the w'ords were so spoken their verdict should be for the defendant.
    Ans. “Affirmed.”
    2. The jury, in the consideration of the words charged as spoken by the defendant of and concerning the plaintiff, are to look at and consider all the facts and circumstances in evidence which may tend to shed light upon the meaning of the speaker.
    Ans. “ Affirmed and bill sealed for plaintiff” (First assignment of error.)
    3. If the jury believe, from the evidence the words “he is a thief,” a “damned thief,” or words in substance the same, were spoken with other words by which they were qualified and to refer to a contemplated issue of bonds, and that if so issued the plaintiff would or might steal or convert them to his own use, and the said words “ he is a thief” or “ damned thief” were uttered by the defendant in the view that the plaintiff would unlawfully use or convert the bonds, there can be no recovery in this action.
    Ans. “ Affirmed and bill sealed for plaintiff.” (Second assignment.)
    4. If the jury should find that the alleged slanderous words were spoken by the defendant solely in reference to the official conduct of plaintiff as.burgess of the borough, whether spoken at public meetings, citizen’s meetings, school board meetings, or to citizens who were taxpayers and interested in the question of the issue of bonds, and if at the time of the uttering of said words he acted in good faith, with the belief that the plaintiff had been guilty of fraudulent conduct in the issue of borough bonds and the purchase of lots for a town hall, there can be no recovery, unless the jury believe the defendant was actuated by personal ill-will and hatred and mali.ce toward the plaintiff.
    Ans. “Affirmed and bill sealed for the plaintiff.”

      5. That the discussion of the conduct and character of public servants is a right inherent in the citizen; that this right cannot be lawfully denied or abridged; that in the discussion and free comment upon the conduct of public servants acting in their official capacity the citizen is protected whenever he speaks the. truth as he designs to be understood, and as he is understood by his hearers, no matter what may be the form of expression or the language employed.
    Ans. “Affirmed and bill sealed, for the plaintiff.” (Third assignment.)
    6. If the jury believe that the plaintiff, a burgess of the borough of Yerona, in connection with confederates in the council of the borough, was engaged in an enterprise to issue a large quantity of borough bonds for the purpose of enabling himself and others to reap individual gain and advantage from the creation of a borough debt, then it was the right and duty of the defendant to denounce the breach of duty, arid the same will protect rather than punish the vigilance which seeks to protect the public interest.
    Ans. “ Affirmed as a general proposition.”
    7. If the jury believe from the evidence that the plaintiff, taking advantage of his official position as burgess of the borough of Yerona, made a sale, either directly or indirectly, of property, for the purpose of erecting a town hall in the immediate vicinity of his own property, and received therefor more than a fair market price for the property, thus using and perverting his official position and influence to his own profit, it was a public theft, punishable by the law, and no damages should be awarded against a citizen who may denounce such conduct.
    Ans. “ Affirmed as a general proposition.” (Fourth assignment.)

      8. If the jury believe that the plaintiff, whilst burgess of the borough of Verona, prostituted his public trust to his own profit, either by a direct sale of lots to the borough at an exorbitant price, or indirectly by cunningly conveying to a confederate his property, and by means of that confederate reaping the fruits of the sinuous and unlawful transaction, the defendant, as a citizen and a taxpayer, had a right to criticise and denounce the transaction as a theft.
    Ans. “ Affirmed and bill sealed.for plaintiff. (Fifth assignment.)
    9. It is the province of the jury, from all the evidence in the case, to judge and determine the sense in which language was used and employed by the defendant. In the interpretation of his language they are to take a reasonable view of all the circumstances, the motives of the speaker, his right of comment and criticism, the occasion for speech, the presence or absence of malice in the speaker. All these inquiries are for the jury, and they are the exclusive judges of the facts involved.
    Ans. “Affirmed.” (Sixth assignment.)
    In the general charge, the court, inter alia, said: “The plaintiff charges that the defendant has spoken certain slanderous words of and concerning him; that he has called him a thief,’ ‘ a damned thief,’ and said that if the borough bonds came into his ‘(Rowand’s) possession he would run away with them.’ These words are in law actionable per se; that is to say of a man that ‘he is a thief,’ ‘ a damned thief,’ that ‘ he will run away with the b'orou-gh bonds if they came into his possession,’ are actionable words in themselves. The first question for you to look at, then, is whether these words were uttered, and several witnesses have been called to prove that they were. The defendant denies uttering some of the words, and qualifies the uttering of others. If you find that the words were used in their plain ordinary meaning, with nothing to qualify them, your verdict must be for the plaintiff There is a defence set up, however,, which is made the great contest in this case. On the part of DeOamp it is denied that he used the word ‘ thief ’ unqualifiedly, except in one instance, where he had a personal encounter in the cars; thatJie used it there because the plaintiff came up behind him and struck himj that at all other, times it was under certain circumstances, and with certain qualifications, that would render the words used privileged, and therefore not actionable. DeOamp alleges that he was a citizen and large property owner in the borough of Verona; that the plaintiff was burgess of the borough and a member of the town council; that at some time, early in 1875, the council passed an ordinance to build a town hall, and to issue bonds to a large amount to pay for it; that on his own behalf, and at the request of other citizens and property holders, he opposed the building of the town hall and the issue of the bonds ; that an indignation, meeting was called, and as a result of the opposition to it, the council repealed the ordinance ; that a short time, some few months afterwards the ordinance was re-enacted, and two lots were sold to the borough, in an indirect way, by the plaintiff, who was still burgess, and that he eventually got the bonds of the borough in payment for them; that it was done by a covinous, sinuous, tortuous arrangement, to which the plaintiff was a party ; that, acting for some of the citizens of the borough as well as himself, he (the defendant) was endeavoring to defeat the issue of these bonds by legal'means, by speaking in meetings, talking to taxpayers and other citizens interested, -while, in the meantime, the burgess and council were proceeding with their scheme for a town hall, until stopped by an injunction (suggested by DeOamp) obtained on the ground that under the Wallace Act the council had no power to issue bonds. Under such a state of facts, if believed, the question arises had the defendant a right to use the language complained of. Merely to say of aman, because he is in office, that ‘he is a thief,’ is as bad a slander as to say it of a private citizen, and probably worse, because he has ordinarily less chance to defend himself. I apprehend that the law of Pennsylvania is, and so instruct you, that if the burgess and council were going to issue these bonds, the citizens had a right, in every proper manner, to defeat the issue, but whatever they did must have been done in a truthful, or bel'ievingly truthful and fair way; that any words uttered by DeOamp during the time this controversy ivas going on, if uttered in good faith, DeCamp believing them to be true, would be justified, unless express malice, personal malice, personal ill-will, or malice in fact is shown.
    “ It is contended on the part of the plaintiff that some of these words were not spoken by the defendant during this controversy, and were spoken of and concerning the plaintiff independently of his position as burgess, and not in any way concerning this controversy. If that is so, if at any time before this controversy arose DeOamp, called Rowand a thief, said he would steal a thousand dollar bond, for instance, on the 4th of January 1875 (although the utterance on that date is disputed), the plaintiff would be entitled to recover. DeCamp’s right to speak what he honestly believed to be true existed only under the circumstances alleged here on his behalf. If what he said was said under these circumstances, and so understood by the parties to whom it was addressed, he is protected, unless express malice or malice in fact is shown. The defendant must have acted in good faith in the utterance of.these words; he could not go around and use that language maliciously, and with intent to injure Rowand, with personal ill-will and hate and spite. ,
    “ He contends that there was no personal ill-will outside of this bond question, and has called a great many witnesses to testify to that. On the other hand the plaintiff offers evidence to show that in September he wrote a letter to the defendant asking him to quit calling him (the plaintiff) a thief and bankrupt, and that after receiving that letter DeCamp repeated this language. Also, evidence what DeCamp said to one witness that he had a paper in his safe that would send him (Rowand) to the penitentiary, and to another witness that he would ‘ ruin him.’ This testimony bears on the question of express malice, or malice in fact, and if this is shown the law will not shield the defendant.
    “ There is one other fact, already alluded to, to which you must direct your attention, that is, that before this difficulty at all the defendant called Rowand ‘a thief’ or ‘a damned thief,’ and added that he had stolen a thousand dollar bond. If that is true it is totally unjustifiable, and your verdict must be for the plaintiff. He had no right to speak those words except under the circumstances and in the light of the instructions I have given you.
    “In conclusion, the law makes you the exclusive judges of the facts, and we are very glad it does. It is your duty to carefully consider the testimony. If you should believe that the defendant used the words ‘he is a thief,” ‘a damned thief,’ as alleged, without any explanatory words showing a meaning other than the common ordinary meaning, they are actionable per se, and the law implies damages. They must have been spoken however within one year from the beginning of this suit, which was December 27th 1875. But if you believe that these words were spoken in good faith concerning the burgess, acting in his official capacity, the defendant believing what he uttered, he is protected unless express malice is shown, malice in fact, ill-will, or that the words were uttered before this trouble commenced, all of which the plaintiff contends has been shown. If you should conclude that the words spoken were justifiable, were spoken of the plaintiff in his official capacity, that there was no personal malice, you should return a verdict simply for the defendant; but if you should find for the plaintiff on any of these points, the last question will be the measure of damages. The measure of damages in an action of slander is first, compensation for the injuries received; then if there are circumstances of aggravation or express malice is shown, you can give punitive damages, such damages as you «nay think proper under all the circumstances. The question of damages in an action of slander is one peculiarly for the jury. You take the case with these instructions and give it a careful consideration, remembering that many of these questions of fact are hotly contested on either-side, particularly the question of the selling of the íots to the borough.”
    Verdict for plaintiff with six and a quarter cents damages. He then took this writ and alleged that the court erred, as set forth in the assignments of error noted above.

      Marshall Swartzwelder and Robb & Fitzsimmons, for plaintiff in error.
    When the circumstances of the publication are controverted or uncertain a case is presented in which the court is to instruct the jury what condition of circumstances would under the publication be privileged, and then leave it to the jury to determine the character of the publication: Duncan v. Brown, 15 B. Mon. 136; Townshend on Slander and Libel, sects. 287, 288, pl. 387; Durby v. Ouseley, 36 Eng. Law and Eq. R. 518; Wenman v. Ash, 13 C. B. 836.
    .Although the specific charge upon which the plaintiff relied was of the date of January 4th 1875, long prior to the issue of any borough bonds for the improvement of the streets and erection of a town hall, yet under the second point, language used long subsequent to January 4th 1875, by the defendant, must be taken into account by the jury in construing the language used by the defendant of January 4th 1875. Such a position can certainly not be supported: Smith v. Smith, 3 Wright 441; Barr v. Hack, 46 Iowa 308; Garrett v. Dickerson, 19 Md. 418. The third point of defendant, being the third assignment of error, lays down a principle which, if law, would sap the foundation of any society sufficiently human to require public officers or servants. To say that “ the citizen is protected whenever he speaks the truth as he designs to be understood, and as he is understood by his hearers, no matter what may be the form of expression or the language employed,” is simply to say that the private character and reputation of any citizen, no matter how honorable or just he may be, who may serve as officer or public servant, is open continually to the scurrilous attacks of abandoned and dissolute men.
    It is the duty of the court to pass upon a question of privilege, and the jury to find the facts under the charge of the court. Whether words sufficient in themselves-to raise the legal presumption of malice, are privileged, is a question of law, determinable from the circumstances attending their utterance: Garrett v. Dickerson, 19 Md. 418.
    It is not competent for the defendant to prove that a rumor prevailed in the neighborhood of the truth qí the words spoken by him : Miller v. Varner, 2 Pitts. 149; Chapman v. Calder, 2 Harris 365; Pease v. Shippen, 30 P. F. Smith 513.

      Hampton & Dalzell and Thomas M. Marshall, for defendant in error.
    That the facts in controversy were justly submitted under proper legal direction by the court is manifest. If the words were spoken of and concerning Rowand as burgess, in a matter free to public debate and criticism, good faith is the rule, good faith in an honest expression of the public conduct of a public officer. It is complained that this court did not assume the function of the jury aud decide the fact. DeCamp had testified that all his utterances were in regard to, and touching the public conduct of Rowand as burgess. The court could 'not decide the fact, it was for. the jury. The specific charge of January 4th 1875, was specifically denied by DeCamp. The authorities cited by counsel are against them. When the language is certain and undisputed, as in a printed libel, it is for the court to pass upon the character of the publication, but when as here, the speaking of the words and the circumstances of the speaking are in controversy, it must be left to the jury to find the facts.
    In all cases of slander or libel excusable on the ground of being privileged, “ all the facts and circumstanceg may be given in evidence by the defendant to show probable ground and to rebut the idea of malice.”
    Numerous authorities are cited in the opinion, and the question is settled in Pennsylvania that evidence tending to prove the truth of the charge may be given in evidence, under the general issue alone, when words are spoken of a public servant in his official capacity.
    The case of Chapman v. Calder was followed by the learned judge who. tried this case. It governed and controlled the law of the case.
   Mr. Justice Trunkey

delivered the opinion of the court, January 5th 1880.

This cause was so fairly submitted that not a phrase of the general charge is alleged to be erroneous; and the plaintiff does not complain of the answers to his points, which embraced everything on which he desired special instructions. Therefore, no just complaint can be made that matter was omitted necessary to enable the jury to understand the case. The defendant’s points, and answers thereto, must be considered with the charge, which explains and qualifies them. Indeed the charge and the points of both parties, which were affirmed, together constitute the instructions to the jury, and one part should not be taken without reference to the others. Had the verdict been for defendant, perhaps some of the assignments of error would be sustained — being in favor of the plaintiff, we cannot say the jury were misled.

In the disposition of this case we do not affirm the right of a citizen to call a public officer a thief, under such circumstances that the word would likely be understood in its ordinary sense by the hearer.. When a man exercises the citizen’s right to denounce the action of a public officer, it is unlawful for him to make a false and malicious charge of crime or misdemeanor in office. We think the learned judge of the Common Pleas intended to be so understood; and although he affirmed the defendant’s third, fifth and ninth points, which seem to recognise the right to denounce an officer a3 a thief and his transaction as a theft, yet he told the jury that to say of a man in office that he is a thief is as bad a slander as to say it of a private citizen and probably worse; that if the defendant used the words as alleged without explanatory words, showing other than their ordinary meaning, they are actionable per se, and the law implies damages; and (plaintiff’s fourth point), if the words were privileged, and malice in fact be shown, the verdict should be for the plaintiff. The jury could not have found the words were privileged, for there was express instruction that if spoken of the plaintiff in his official capacity, without malice, to find for the defendant. Hence, if it be true, as urged, that the court should say whether the words were privileged, the omission to do so did the plaintiff no harm. No statute or rule was cited which obligates a citizen when discussing the conduct of public servants in their official capacity, who speaks the truth as he designs to be understood and as he is understood by his hearers, to employ any prescribed form of expression or language. So long as he speaks the truth, in words meaning nothing else, he is not liable in damages, whether his language be chaste or vulgar, refined or scurrilous. The style of speech seems to be governed by the taste of the speaker and not by'the civil law. No error is found in the matter set forth in the second, third and fifth assignments which can avail the plaintiff, he having obtained the verdict.

It is assigned that the affirmance of the defendant’s second point-must have led the jury away from the issue which centered in the words proved by Iioughteling. As a general proposition that point is sound. If it needed remark to explain its application to the case, it is found in the charge where it is said, among other things, that if, before the difficulty, the defendant called the plaintiff a thief, adding that he had stolen a thousand dollar bond, it -was totally unjustifiable, and the verdict must be for the plaintiff. Moreover, the answer to plaintiff’s first point directly and positively affirmed his right to recover if the facts therein stated were true.

On June 10th 1875, the plaintiff, then the burgess of Verona, conveyed two lots to W. E. Hope in consideration of a promissory note for $1500; and, on the 30th of December thereafter, Hope conveyed the same lots to the borough for $1500 in borough bonds. Hope exchanged the bonds with plaintiff for the promissory note. Before the plaintiff conveyed to Hope he had offered two lots to the borough for $1500, and, by the end of the year, the lots -were vested in the borough, the bonds in the plaintiff, and Hope had neither paid, made nor lost money. According to the testimony of nearly a half-dozen witnesses, in 1875, the lots were worth about $500— one-third the amount of bonds given for them — two or three witnesses said they were worth $1500. The plaintiff called in chief numerous witnesses to prove words spoken by defendant at various times down to the end of the year 1875, who, on cross-examination, said they were uttered after the controversy had arisen respecting the bonds. Property owners had become alarmed about a proposed issue of borough bonds, and requested the defendant to oppose it for them as well as himself: the dispute between him and the plaintiff soon became violent. Notwithstanding the perverted use of the word “theft” where it occurs in defendant’s seventh and eighth points, it certainly applies to the transaction described in said points; and, in view of the evidence, we are not convinced their affirmance was error.

The ground covered by the plaintiff’s testimony opened the door for the defendant to show there was a controversy about the propriety of issuing the bonds, and the circumstances under which the words were uttered: Chapman v. Calder, 2 Harris 365; Stees v. Kemble, 3 Casey 112; Minesinger v. Kerr, 9 Barr 312. The evidence admitted had no tendency to prove the truth of the words set out in the declaration, and was not received for that purpose. It was to show the circumstances under which the words were spoken, and was clearly admissible.

We have not been unmindful of the point urged in argument, that though the plaintiff obtained a verdict he failed in recovering punitive damages because of erroneous answers to defendant’s points. We áre of opinion the instructions fairly left the question of damages to the jury. Possibly the result was more on account of the personal satisfaction attempted to be taken of the defendant in a public conveyance, before the suit was commenced, than of any supposed error by the court. Jurors usually have common sense.

Judgment affirmed.


author: Per Curiam.

text:
    Nicholson versus The Commonwealth.
    1. An information had beenmadefor seduction under promise of marriage. In drawing the indictment a count for fornication and bastardy was included although there had been no information as to the last offence: Held, that they could be properly joined in the same indictment.
    2. In a criminal case the court charged the jury : “ The only safe course for you to pursue, as to the law regarding offences which you may have given you in charge, is to receive your instructions from the court, for the reason that you are not supposed to be learned in the law ; and if you should commit an error therein, or counsel should be mistaken in stating the law to you, and you, relying on their version, or your own ideas, in either case should you commit an error, there is no remedy for such error:” Held, that this was noterror. The court had an undoubted right to instruct the jury as to the law, and to warn them as they did, against finding contrary to it.
    3. Per Curiam. — This is very different from telling the jury that they must find the defendant guilty, which is what is meant by a binding instruction in criminal cases.
    October 21st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunicey and Sterrett, JJ. Green, J., absent.
    ' Error to the Court of Quarter Sessions of Venango county: Of October and November Term 1879, No. 306.

      Indictment of William A. Nicholson for the seduction of Hessie Thorn. The defendant was indicted for seduction under the provisions of the Act of .March 31st 1860, sect. 41, Pamph. L. 385, and also for fornication and bastardy under the provisions of the 37 th section of said act. The* defendant moved to quash the count for fornication and bastardy for the following reasons: “ That no information had theretofore been made charging the defendant with fornication and bastardy; nor was said charge made or indictment for fornication and bastardy found upon the return of a constable; and that said count was unauthorized by law.” The defendant,- at the trial, pleaded “not guilty.” The Commonwealth offered in evidence a letter from defendant to Hessie Thorn as showing the relation existing between them. Admitted under objection.
    In the general charge, the court, Taylor, P. J., inter alia, said: “ The only safe course for you to pursue, so far as the law regarding offences which you may have given you in charge, is to receive your instructions from the court, for th.e reason you are not supposed to be learned in the law; and if you should commit an error therein, or counsel should be mistaken in stating the law to you, and you, relying on their version, or your own ideas, 'in either case should you commit an error, there is no remedy for such error.”
    The jury found the defendant guilty on all the counts, and he was sentenced accordingly. He then took this writ and alleged that the court erred, inter alia, in refusing to quash the count charging fornication and bastardy, the admission of the letter above alluded to and the foregoing portion of the charge.

      Mackey & McGough, Osmer & Dale and Dodd & Lee, for plaintiff in error.
    Fornication and bastardy is a distinct offence from seduction, made so by a different statute, the 52d section of the Penal Code. Seduction partakes essentially of the character of civil process: 2 Whart. Am. C. L., 7th ed. sect. 2667; Duncan v. Commonwealth, 4 S. & R. 448. The two offences cannot be joined in one indictment. See also, Updegraff v. Commonwealth, 6 Id. 9.
    It has been the uniform practice in Pennsylvania for years to require prosecutions to he instituted either upon information made before a committing magistrate, by return of constable, upon motion of the district attorney, or upon personal knowledge of the grand jury: McCullough v. Commonwealth, 17 P. F. Smith 30; Rowand v. Commonwealth, 1 Norris 405; Commonwealth v. Maloy; 7 P. F. Smith 298. None of the above requirements were complied with as to the fornication and bastardy.
    The letter was wholly incompetent for any purpose, and this is especially true of one relating to a breach of a marriage engagement written months after the alleged seduction. The court could scarcely have been more emphatic in their instructions to the jury — not only to disregard any comments upon the law made by defendant’s counsel, as well as any opinion of their own— than their often repeated and binding instructions which we assigned for error. The jury are the judges of the law as well as' of the facts. The power of the jury to judge of the law in criminal cases is one of the most valuable securities guaranteed by the Bill of Rights: Sharswood, C. J., in Kane v. Commonwealth, 8 Norris 522.

      W. C. Rheem and C. Heydrick, for defendant in error.
    It is usual to join counts for fornication and bastardy in indictments for seduction: Commonwealth v. McCarty, 2 Clark 351: Lewis on Criminal Law, pp. 51 to 53; Duncan v. Commonwealth, supra; Wharton’s Criminal Law, sect. 423; Dinkey v. Commonwealth, 5 Harris 126; Commonwealth v. Birdsall, 19 P. F. Smith 484; Harman v. Commonwealth, 12 S. & R. 69; Henwood v. Commonwealth, 2 P. F. Smith 424; Stevick v. Commonwealth, 28 Id. 463. The court gave no binding instructions to the jury. They only recommended the safest course the jury could adopt in ascertaining what the law was. Had the court been requested to charge that the jury were the judges of the law, they would undoubtedly have done so and given the jury the same advice which the court did and which is so emphatically affirmed in Kane v. Commonwealth, supra.

   The judgment of the Supreme Court was entered November 10th 1879,

Per Curiam.

There was nothing in adding the counts for fornication and bastardy to the count for seduction. They are offences of the same nature. If the Commonwealth had fáiled to prove the promise of marriage, the defendant might have been convicted on the other counts. A party indicted for seduction may plead such acquittal in bar of a subsequent indictment for fornication and bastardy founded on the same act: Dinkey v. Commonwealth, supra. The third, fourth and fifth errors are not assigned secundum regulas. and there were no exceptions below to the rulings on offers of evidence complained of, except to the letter of November 22d 1875, which was clearly admissible to show the previous relation between the parties. The other assignments of error, to the rulings of the court below on questions of evidence, are not sustained by bills of exception, and must fall for that reason; but if they had been they would not avail the plaintiff in error. •

As to the exceptions to the charge, we think there was nothing in it of which the plaintiff can rightfully complain. The court had an" undoubted right to instruct the jury as to the law, and to warn them as they did against finding contrary to it. This is very different from telling them that they must find the defendant guilty, which is what is meant by a binding instruction in criminal cases.

Judgment' affirmed.


author: Mr. Justice Green

text:
    Commonwealth versus Duffy.
    1. Under the 77tb section of the Criminal Procedure Act of March 31st 1860, the limitation of prosecutions for forgery, as a misdemeanor, is two years and not five.
    2. The Act of March 23d 1877 provides, “ That hereafter the offence of forgery, whether the same be a misdemeanor or a felony, shall not be held barred by the Statute of Limitations, when the' indictment therefor shall be brought or exhibited within five years next after the offence has been committed Held, that said act works no change in the rules of evidence or quantum of proof and is not an ex post facto law within the meaning of the federal and state Constitutions when applied to a case which was only subject to a bar of two years when the offence was committed.
    3. An act of limitation is an act of grace purely on the part of the legislature, and especially is this the case in the matter of criminal prosecutions. The state makes no contract with criminals, at the time of the passage of an act of limitations, that they shall have immunity from punishment if not prosecuted within the statutory period. Such enactments are measures of public policy only. They are entirely subject to the mere will of the legislative power, and may be changed or repealed altogether as that power may see fit to declare.
    4. When a right to acquittal has not been absolutely acquired by the completion of the period of limitation, that period is subject to enlargement or repeal without being obnoxious to the constitutional prohibition against ex post facto laws.
    November 25th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Stbrrett and Green, JJ. Sharswood, C. J., absent.
    Error to the Court of Quarter Sessions of Crawford county: 'Of October and November Term 1880, No. 255.
    Indictment of J. 0. Duffy for forgery.
    In the month of September 1875 the defendant was in the employ of the Howe Machine Company, as its agent, for the sale of its sewing machines.. He was then residing in the county of Armstrong, Pennsylvania, and was employed by the said company to sell machines in that vicinity. On or about the 23d of September 1875 he sold a machine to a Mrs. P. J. Wolf, of Templeton, county of Armstrong, for the sum of $75, for which he took her note, payable to the Howe Machine Company one year thereafter. It was his duty, as agent, once every week, to make report of all sales and business done by him to B. E. Porter, manager of the company, at his office in the city of Meadville, Pa. Duffy kept the original note and sent by mail on or about the 25th of September 1875 a copy of it, to which he forged the name of P. J. Wolf, to B. E. Porter at Meadville, by whom it was received. This note was placed to his credit on the hooks of the company, and by Porter sent to the office of the company at Pittsburgh. Shortly thereafter- Duffy left the employ of the Howe Machine Company, and when the year had elapsed the note was forwarded for collection, but it was returned, they stating that it could not be collected. The note was subsequently, about December 1877, sent for collection to Kittanning. It remained there uncollected until the collecting agent of the company, about the fall of the year 1878, went to Templeton and saw Mr. and Mrs. Wolf and demanded payment of the note. Mrs. Wolf claimed that she had paid for the machine and in verification thereof produced the original note, and upon being shown the one in the possession of the company declared it a forgery. This was about the — day of — 1878. Shortly thereafter the Howe Machine Company on the — day of January 1879, made complaint against Duffy for forgery and uttering a forged note, and he was thereupon arrested. On February 9th 1880, -in the Quarter Sessions of Crawford county, February' term 1880, an indictment was presented and a true hill found against him. The defendant then filed a motion to quash the indictment, which was overruled and the defendant ordered to plead. The cause was continued until the May sessions when the defendant pleaded not guilty. He then again contended that the indictment not having been found within two years was barred by the statute.
    The court reserved its opinion, stating if the defendant should be convicted it would entertain a motion in arrest of judgment when the question could be argued. Thereupon the defendant went to trial and the jury found him guilty on the second count in the indictment, namely, for uttering a forged note, &c. The motion in arrest of judgment was then filed, argued, and upon July 10th 1880, the motion in arrest of judgment was granted, the court, Church, P. J., filing the following opinion :
    “ This defendant was convicted of uttering a forged instrument of writing under the 169th section of the Act of 1860, the criminal code. This offence is by that section made a misdemeanor. On the trial the defendant raised the question and asked us to charge the jury that he could not be convicted because it appeared both from the indictment and the evidence that the offence charged had not been committed within two years of the time the indictment was preferred against him. We left the jury to find the actual guilt or innocence of the defendant and reserved the question of the Statute of Limitation to be determined, if a conviction followed by motion in arrest of judgment. That motion is now before us and it raises the simple question whether this offence of uttering a forged promissory note of an individual having been committed on or about the 23d of September 1875, was barred of an indictment found February 9th 1880.

      “ Some kind of forgeries defined in the Criminal Code are felonies. They are to be found described in the Criminal Code from section 164 to 168 inclusive. They include among other things ‘ the falsely and fraudulently making, forging or counterfeiting bank notes, or bankers’ checks and drafts, and also offences against the current coin of the government. Other kinds of forgeries, especially as defined in section 169 of the Code are misdemeanors. They comprise the fraudulently making, signing,, altering or publishing any written instrument (other than notes, bills, checks or drafts already mentioned) to the prejudice of another’s rights,’ &c. It is under this latter section the defendant is convicted.
    “ The section of the code limiting prosecutions provides, inter alia, ‘ That- all indictments brought or exhibited for any crime or misdemeanor, murder, &c., excepted, shall be brought and exhibited within the time and limitation hereinafter expressed, and not after, that is to say, all indictments of prosecutions for treason, arson, * * * perjury, counterfeiting, forgery, uttering or publishing any bank notes, checks, and drafts, &c., * * * shall be brought and exhibited within five years next after the offence shall have been committed,.and all indictments and prosecutions for other felonies not named or excepted heretofore in this section, and for all misdemeanors (perjury excepted) shall be brought or exhibited within two years next after such felony or misdemeanor shall have been committed.’ It is manifest from the reading of this section that the ‘ forgery’ named, for which there is a five years’ limitation, is the" forgery of bank notes, checks or drafts, which had been made a felony. The word is in- close and immediate connection with the counterfeiting, uttering and publishing the bank notes, checks and drafts, and although a better word in this sentence would have been forging rather than forgery, the construction contended for cannot be doubted. We are aided in this construction by the next clause, ‘ And all indictments for all misdemeanors, perjury excepted, shall be brought within two years.’
    “This offence, then, of what we may call ‘common forgery,’ is forgery at common law; and being a misdemeanor, is barred by the two year limitation. This construction is not a forced one; but the natural, reasonable and fair construction of the section. Any other would do violence to the force of language and the grammatical and logical construction of the paragraph. The legislature evidently thought this distinction was made, for on the 23d of March 1877 they passed the following act: ‘ That hereafter the offence of forgery, whether the same be a misdemeanor or felony, shall not be held barred by the Statute of Limitation when the indictment therefor shall have been brought or exhibited within five years next after the offence has been committed.’
    “ It is claimed by the Commonwealth that even if before this act was passed, the limitation for this offence was only two years. yet this act extended the limitation to five years, and yet the act applies to the indictment before us. It will be borne in mind that this offence was committed 23d September 1875. The two years limitation of the Act of 1860 had not elapsed on March 23d 1877, when the five year limitation act was passed, but the two years had much more than expired when this indictment was found. The act of 1877 provides that ‘ hereafter the offence of forgery shall not be held barred,’ &e. Does it not apply to future offences, and to future offences only ? Laws are presumed to be prospective rather than retrospective. There is no canon of construction better settled than this: that a statute shall always be interpreted so as to operate prospectively and not retrospectively, unless the language is so clear as to preclude all question as to the intent of the legislature — because retrospective laws and laws divesting vested rights, though they may not be repugnant to any fundamental law, are repugnant to all principles of sound and wise legislation: Taylor v. Mitchell, 7 P. F. Smith 209; Dowart v. Purdy, 5 Casey 113, and cases cited in Bright. Dig. p. 2205. Can it be said from any language used by the legislature that they intended this act to have retroactive effect, and affect crimes and offences already committed ? The actual language used is just the other way. It says : ‘ Hereafter the offence,’ &e., that is to say, ‘that which, after this time, shall be or become an offence,’ &e. This law would have been perfect in phraseology, clear and direct in meaning and purpose, if the word ‘ hereafter’ had not been used at all; why then put this word in the act, if it had not rather been the intention of the law-making power to make it expressly prospective and definitely inapplicable to crimes and offences already committed. I am impelled, therefore, to the conclusion that this Act of 1877 was intended to be, and is, prospective only in its operation, and hence does not apply to the offence committed in 1875.
    “ If, however, the act in question be retrospective as well as prospective, it would apply to this case, and govern it, unless it partook also of the nature of an ex post facto law, and, therefore, repugnant to the Constitution of the United States and the Constitution of this Commonwealth. A retrospective law is not necessarily an ex post facto law. The former, is- not ex post facto, is constitutional and operative. An ex post facto law is prohibited by the state and United States Constitutions, and is, therefore, void and of no effect. What, then, is an ex post facto law ? This question cannot be answered better than in the language of an eminent jurist, Sharswood, C. J., .in note to p. 47 of 1st Black. Com. * * *
    “ At the time of the commission of this offence in September 1875, the law required the Commonwealth, in order to convict the defendant, to prove that he committed the crime within two years from the exhibition of the indictments. At the time of the trial, the law only required the Commonwealth to prove that the defendant committed the crime within five years of the time of the exhibition of the indictment. Is not that an alteration of the legal rules of evidence ? Does it not make the testimony different and less than the law required at the time of the commission of the offence, and render such less and different testimony sufficient in order to convict the offender ? It seems to me that an affirmative answer must be given to these evident propositions. The difficulty or ease with which testimony may be procured and rendered, is not the criterion, but the quantum of proof required is to be taken as the standard by which the rights of the Commonwealth are to be judged, and just as true as five years is more than two years, so true is it that the testimony required of the Commonwealth ‘in the former case is less than in the latter. I hold, then, that the Act of 1877, in so far as it can or may be construed to operate on offences committed before its passage and tried afterwards, is retrospective and ex post facto an'd therefore unconstitutional and of no effect, as to that offence.
    “•Of course, that the law is good and operative on all offences committed after its passage, no one questions. In conclusion : I have shown that the indicted crime is a misdemeanor, and by the Act of 1860 was barred from indictment at the end of two years. That the Act of 1877 was prospective only and not retrospective, and was not intended to apply to crimes committed before its passage, and that if it be retrospective-, it was and is, as to the crimes under consideration, ex post facto, and therefore as to that crime unconstitutional and void. The reserved point is therefore decided in favor of the defendant, and this motion in arrest of judgment is granted, and the judgment on the verdict is arrested.”
    This action of the court was assigned for error by the Commonwealth which took this writ.

      George F. Davenport, District-Attorney, and Thomas Roddy, for the Commonwealth.
    To quiet any doubt which may have existed as to the intent of the legislature at the time of the passage of the 77th section of the Act of 1860, the Act of 23d March 1877, was passed. The Limitation Act of 1860 was, and is the act, supplemented by the Act of 1877, which the defendant must interpose to prevent the passing of sentence. But it is argued that the Act of 1877 is retroactive and retrospective, and hence, partakes of the characteristics of an ex post facto law. This, if true, we admit, if it effected any vested rights or contract, would render it as to all matters prior to its passage inoperative, but we claim that the law is not retrospective nor ex post facto. An Act of Limitation is an act of grace and not of right, in its fullest sense. It has nothing to do with the offence; it neither adds to nor takes-from. The court below predicates something of the difference of time, but the maxim, nullum tempus oeewrit regi, certainly applies. It did not create a punishment for an act after it was committed, nor aggravate the offence and make it greater than when committed —nor change the punishment and inflict a greater than the law annexed to the crime when committed, nor change the rules of evidence, and make less or different testimony than the law required at the time of the commission of the offence sufficient to convict — and hence is not ex post facto. But an Act of Limitation may be retroactive: Kenyon v. Stewart, 8 Wright 191. A retrospective act which merely touches the remedy by removing a technical impediment is constitutional: Hinckle v. Riffert, 6 Barr 196. The legislature, provided it violates no constitutional prohibition, may pass retrospective laws which affect suits pending, giving a party a remedy that he did not previously possess, modifying an existing one or removing an impediment in the way of legal proceedings : Schenley v. Cmmonwealth, 12 Casey 29 ; Hepburn v. Curts, 7 Watts 300; Waters v. Bates, 8 Wright 473. The two years had not elapsed at the time the Act of 1877 was passed, hence defendant had not acquired (if he had any) vested rights. It is competent for the legislature to alter the period of limitation : Miller v. Commonwealth, 5 W. & S. 488. An action may be barred by a statute passed after the cause of action accrued, if a reasonable portion of the time of limitation remain after the enactment of the statute: Howell v. Howell, Am Law Reg., (N. S.), vol. 3, p. 378, citing and approving, Parker v. Kane, 4 Wis. 1.

      J. B. Brawley and A. B. Richmond, for defendant in error.—
    We rely upon the able and exhaustive opinion of the court below. There is no canon of construction better settled than this, that a statute shall always be construed so as to operate prospectively and not retrospectively, unless the language is so clear as to preclude all questions as to the intent of the legislature: Taylor v. Mitchell, 7 P. F. Smith 211; Bedford v. Shilling, 4 S. & R. 408; Neff’s Appeal, 9 Harris 243; Becker’s Appeal, 3 Casey 52; Price v. Mott, 2 P. F. Smith 315. When a retrospective law affects crime it is ex post facto. The law would be ex post facto if it sought to enlarge the bar from two to five years, thereby changing the proof necessary to convict under the law as it stood when the offence was committed. What is an ex post facto law has been judicially determined: 1 Blackst. Com. 46, note by Sharswood; Calder et ux. v. Bull et ux., 3 Dall. 386; Satterlee v. Mathewson, 2 Pet. 380 ; Fletcher v. Peck, 6 Cranch 148 ; Watson v. Mercer, 8 Pet. 88. In .the Act of 1877 the legislature used language which it would seem plainly, declares that they intended the law to apply only to future offences. It declares, “ that hereafter” the offence of forgery, &c. There is certainly no reason for saying that this law applied to past offences committed long prior to its passage.
   Mr. Justice Green

delivered the opinion of the court, January 3d 1881.

We are of opinion that under the 77th section of the Criminal Procedure Act of 31st March 1860, the limitation of prosecutions for forgery as a misdemeanor is two years and not five. It is true the first clause of the section enumerates “ forgery” as one of the offences subject to the five years’ limitation, and were there not other considerations affecting the question we should hold that the limitation of five years applied to all forgeries. But .the concluding clause of the section positively, enacts that all indictments and prosecutions “for all misdemeanors, perjury excepted, shall be brought or exhibited within two years next after such * * * misdemeanor shall have been committed.” Of course the legislature did not intend to say that there should be two different periods of limitation for the same offence in the same act. As certain forgeries are felonies, and others are misdemeanors, the reasonable construction of the act is that the former are barred only after five years and the latter after two year's. The legislature must have supposed that this was the true interpretation of the Act of 1860, because in 1877 they enacted a new law, making a uniform limitation of five years in all cases of forgery, “whether the same be misdemeanor or felony.” They thus recognised the distinction between the two kinds of forgery, and necessarily proceeded upon the assumption that they were not subject to the same limitation, prior to the passage of the latter act. The act would have been useless upon any other theory. If the limitation was five years before, there was no occasion to pass an act to say that, thereafter, it should be five years.

The next and most important question is, as to the effect of the Act of 1877 upon a case where the forgery was a misdemeanor, and the two years’ limitation had not expired at the time of its passage. Such is the present case, and it presents this exact question. The learned judge of the court below held that to apply the law to a case in which the offence had been previously committed would make it retro-active, and, as it related to a criminal subject matter it would be an ex post facto law, and therefore void under both the federal and state Constitutions. If this view of the case were correct, the conclusion of the court below, that, the case was subject only to the two years’ limitation, would be right, and we should be obliged to affirm the judgment. But we are quite unable to agree with the reasoning of the learned judge on this subject, and have therefore reached a different conclusion. The language of the Act of 1877 is as follows: “ That hereafter the offence of forgery, whether the same be a misdemeanor or a felony, shall not be held barred by the Statute of Limitation when the indictment therefor shall have been brought or exhibited within five years next after the offence shall have been committed. It is true that this language, as well as the title of the act, are somewhat indicative of an intent that the Act of 1877 should be regarded as declaratory of the meaning of the Act of 1860, but we prefer to rest the decision of the case upon a larger and broader ground. It is contended that the word “hereafter,” in the connection in which it occurs, imports that the act was only intended to apply to cases in which the offence was committed after the passage of the act. We cannot so read it. The word “hereafter” in' the act is connected with and qualifies, the expression, “shall not be held barred,” &c.; that is, hereafter, when the Statute of Limitations is pleaded to an indictment for forgery it shall not be held barred if itshall have been brought within five years after the commission of the offence. The defendant would have us read the word “ hereafter ” as relating to the time of the commission of the offence, whereas in truth, it relates only to the time when the question is raised, and the court is required to decide it. “ Hereafter it shall not be held,” &c., is the precise connection of the words. This is rendered quite plain by simply transposing the-word to its more appropriate position and reading it thus — that the offence of forgery, whether the same be misdemeanor or felony,, shall not hereafter be held barred by the Statute of Limitations-' lirhen the indictment therefor shall have been brought or exhibited within five years next after the offence has been committed.” It is argued by the learned judge that the act is ex post facto if applied to past offences, and he bases his reasoning upon the very precise and comprehensive definition given by the present chief justice in his valuable edition of Blackstone’s Commentaries, vol. 1, p. 47. That definition is as follows : “ An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. Every law that makes an act done before the passing of the law, and which was innocent when done, criminal, or which aggravates a crime and 'makes it greater than it was when it was committed, or which changes the punishment and inflicts a greater punishment than the law annexed to the' crime when committed, or which alters the legal rules of evidence, and makes less or different testimony than the law required at the time of the commission of the offence sufficient in order to convict the offender, falls within this definition.” The learned judge of the court below argues that it would be altering the legal rules of evidence to apply the new bar of five years to a case which was only subject to the bar of two years when the offence was committed. The reasoning is that the Commonwealth in the one case would be required to prove that the offence was oommitted within two years, and in the other within five years, and because five years are more than two, “ the testimony required of the Commonwealth in the former case is less than in the latter.!’ This argument assumes that there is something more to be proved than the commission of the offence. But it will be seen at once that whether the bar be five years or two years, the proof of the Commonwealth is precisely the same in either case. The period of limitation is not a subject of proof at all. The Commonwealth proves that the offence was committed, giving the circumstances in evidence, and necessarily as a part of the factum, the time when it was committed. If then it happens that the law interposes a bar to a conviction if the offence was committed more than two years before the finding of the indictment, and such was the fact in a given case, there can be no conviction. But if the bar were five years, the freedom from conviction would not arise till after five years had elapsed. In each case the actual proof is precisely the same. The Commonwealth proves no more and no less in one case than in the other. Hence, both the quantum of proof and the rules of evidence are the same in both cases, and there is no change in these respects in changing the time of the bar.

At the time the Act of 1877 was passed, the defendant was not free from conviction by force of the two years' limitation of the Act of 1860. He therefore had acquired no right to an acquittal on that ground. Now an act of limitation is an act of grace purely on the part of the legislature. Especially is this the case in the ■matter of criminal prosecutions. The state makes no contract with criminals, at the time of the passage of an act of limitation, that ■they shall have immunity from punishment if nof prosecuted within the statutory period. Such enactments are measures of public policy only. They are entirely subject to the mere will of the legislative power, and may be changed or repealed altogether, as that power may see fit to declare. Such being the character of this kind of legislation, we hold- that in any case -where a right to acquittal has not been absolutely acquired by the completion of the period of limitation, that period is subject to enlargement or repeal without being obnoxious to the constitutional prohibition against ex post facto laws. A law enlarging or repealing a statutory bar against criminal prosecutions may, therefore, apply as well to past as to future eases if its terms include both classes. Such legislation relates to the remedy only and not to any property right or contract right. The Act of 1877 in the present case-was legally operative to enlarge the period of limitation as to the defendant, he having acquired no right of acquittal by virtue of the previous limitation at the time of the passage of the act. It follows from these considerations that the learned judge of the court below was in error in entering judgment in favor of the defendant on the point reserved and in arresting the judgment. That retroactive legislation is -not necessarily unconstitutional, especially where it only affects remedies, has been so many times decided that a mere reference to some of the authorities will be sufficient: Satterlee v. Matthewson, 16 S. & R. 179; Hepburn v. Curts, 7 Watts 300; Kenyon v. Stewart, 8 Wright 191; Schenley v. Commonwealth, 12 Casey 29 ; Waters v. Bates, 8 Wright 473.

Judgment reversed and record remanded with this opinion, setting forth the cause of reversal to the court of Quarter Sessions of Crawford county for further proceedings.


author: Mr. Justice Mercur

text:
    Dougherty versus Haggerty.
    An agreement declared that S. “ sells and delivers to the said D 100,000 feet, more or less, of hemlock timber, hoard measure, at the rate of fifty cents per thousand feet, board measure, the said hemlock to be taken off (a certain tract) and the said lumber is to be cut and removed just as soon as it can be; and in consideration and in connection with the above said S. agrees to cut, haul, saw, raft and run to market the above hemlock timber at the rate of §5 per thousand, to be paid as the work progresses, and the said lumber' to be run to any point on the Allegheny river to Pittsburgh.” D. paid §50 upon the execution of the contract and §400 two and one-half months thereafter. After the logs were cut and before they reached the saw-mill, an employee of S., at the request of D., and in his presence, marked the initials of D. on them. When S. piled the lumber at the mill he marked the name of D. upon the piles. While it was yet lying at the mill it was levied upon and sold as the property of S. D. brought replevin against the vendee: Held, that there was not sufficient change of possession to vest the property in D., and the court properly instructed the jury to find for the defendant.
    October 21st 1879.
    Before Sharswood, 0. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Clarion county: Of October and November Term 1879, No". 117.
    This was an action of replevin brought by Thomas Dougherty against James Haggerty on the 14th of April 1877, for 120,000 feet of hemlock lumber. About 80,000 feet worth from $8 to $10 per 1000, of the property was replevined at the mouth of the Clarion river, and retained by the defendant, Haggerty, upon giving property bond.
    In the year 1874, James A. McClelland, Samuel T. Reynolds and S. T. Dougherty, became the owners, by purchase and conveyance, from L. F. Flowers and wife, of the undivided three-fourths of 439 acres of land, being part of Holland warrant 2.775, in Spring Creek township, Elk county, Pennsylvania. It appeared from an article of agreement between S. T. Reynolds and S. T. Dougherty, dated the 16th of January 1875, given in evidence on trial, that said Dougherty and Reynolds had been engaged as copartners, under the name and style of Dougherty & Reynolds, in manufacturing lumber. On that date, S. T. Reynolds sold and transferred by said articles of agreement, to S. T. Dougherty, all his interest in the partnership assets; also his interest in the 439-acre tract. And also a one-fourth interest in a 14-acre tract, on which was erected a saw-mill and other buildings, purchased March Sd 1874, by article of agreement from L. E. and E. M. Powers. On the 1st of August 1876, an agreement was made between S. T. Dougherty and his father, the plaintiff in error, as follows : “ An article of agreement made by and between S. T. Dougherty, of 'Elk county, Pa., and Thomas Dougherty, of Clarion county, Pa., witnesseth, that the said S. T. Dougherty sells and delivers to the said Thomas Dougherty, one hundred thousand (100,000) feet, more or less, of hemlock lumber,- board measure, at the rate of fifty cents per 1000 feet, board measure. The said hemlock is to be taken off a lot of land lying in Spring Creek township, Elk county, Pa., and bought of L. Powers by S. T. Dougherty and James McClelland. And the said lumber is to be cut and removed just as soon as it can be ; and in consideration and connection with the above, S. T. Dougherty agrees to out, haul, saw, raft and run to market the hemlock timber at the rate of $5 per 1000, to be paid as the work progresses, and said lumber to be run to any point on the Allegheny to Pittsburgh, Pa.”
    Endorsed on this contract were receipts by S. T. Dougherty for $50, on the 1st of August 1876, and of $400, on the 14th of October 1876.
    The owners of the tract containing this 439 acres alluded to in the above contract as that from which the lumber was to be taken, were S. T. Dougherty, who owned one undivided half, James McClelland one-fourth, and O. 0. Earies and the heirs of one Graphies jointly the other fourth. S. T. Dougherty was the owner of at least one-fourth of the mill and fourteen-acre tract. S. T. Dougherty, under his contract in the fall of 1876, went on and cut logs on the 439-acre tract, and run them to the saw-mill on the fourteen-acre tract, where they were manufactured by a sawyer in his employ to whom he furnished the sizes. After the lumber was manufactured it was piled up at the mill. After they had been thus sawed and piled ready to raft an execution was issued on a judgment of Powers v. S. T. Dougherty, S. T. Reynolds and James McClelland, and the boards were levied on and sold to James Haggerty, defendant, who employed hands, rafted in and run them to the mouth of the Clarion river, where they were replevined by the plaintiff.
    Verdict for defendant, and after judgment plaintiff took this writ, and alleged that the court erred as follows:
    1. In the answer to the plaintiff’s fourth point: If J. A. McClelland gave S. T. Dougherty a license to cut timber off their joint lands to reimburse himself for money paid by Dougherty for Mc-Clelland, and the lumber in dispute was cut in accordance, with such license, the defendant would acquire no right of property to the lumber in dispute through J. A. McClelland.

      Ans. “We do not see the applicability of this point and there-ford decline to answer it.”
    2. In their answer to plaintiff’s fifth point: If S. T. Dougherty and. J. A. McClelland had exclusive possession of the land and S. T. Dougherty cut the timber from the stump, hauled and manufactured it as a jobber for T. Dougherty in good faith under contract of 1st August 1876, and the same was stamped and marked with the mark of T. Dougherty, and the defendant at sheriff’s sale had notice that the lumber belonged to T. Dougherty, if the jury should find the facts as stated in plaintiff’s third point, their verdict should be for the plaintiff
    The third .point referred to in this point is as follows : That if McClelland, Dougherty and Reynolds used the land or timber on warrant No. 2775 as partnership property, and so treated it, and the same was paid or to be paid for' out of partnership funds, as between them the standing timber would be as to their interest therein, subject to sale by any of the partners for the payment of partnership obligations or partnership debts.
    Ans. “ Refused.”
    3. In their answer to the defendant’s third point: If S. T. Dougherty contracted with the plaintiff, his father, to cut, manufacture and deliver the lumber in controversy from land owned by himself and another or others, the marking the logs or lumber while he was still engaged in performance of his contract and in control of lumber before the same had reached place of delivery, would not vest title in plaintiff so as to prevent execution-creditors levying on the same and under such facts plaintiff could not recover.
    Ans. “Affirmed.”
    4. In their answer to defendant’s sixth point: That under all the evidence in this case plaintiff cannot recover.
    Ans. “Affirmed.”
    5. In instructing the jury to find a verdict for the defendant.

      Wilson & Jenks, for plaintiff in error.
    The doctrine that possession must be delivered to constitute a valid sale as to creditors, as to chattels real at best can only be complied with by the purchaser entering upon the chattel. When Thomas Dougherty, by his jobber entered and cut the timber, that was sufficient to constitute a delivery. When he himself went to the logs and had them stamped with his stamp, T. D., this was exercising his ownership. When, after the lumber was sawed, he marked the piles of boards, it was a continuéd assertion of such ownership, and that branch of the doctrine that the connection of the former owner must be entirely severed from the chattel, does not hold as to chattels real, otherwise in many instances no legal sale could be made as to such property. The owner of the land may sell all or a portion of the timber on his land, and yet the property so sold would not be subject to sale on an execution against the vendor, because he was still found in possession of the land.

      W. L. Corbett, for defendant in error.
    The contract was simply a sale of hemlock lumber when sawed and run to market at any point .on the Allegheny river. Such contract was a sale at the place it was to be delivered, at $5.50 per thousand, and until run and delivered, no title to the same vested in plaintiff, Thomas Dougherty. As long as the contract was being performed, there could be no transfer by delivery of the thing, the subject of performance. The attempt to make a constructive or symbolical delivery, by marking the logs and piles of lumber, whilst the vendor was still engaged in the performance of the contract, and before the lumber had reached the place of delivery, could in no way affect the title, and could have no effect as to execution-creditors of the vendor: Garman v. Cooper & Co., 22 P. F. Smith 32 ; Caldwell v. Fisher, 2 W. N. C. 383. In this case, had there been a delivery to plaintiff by his vendor, S. T. Dougherty, still there could be no recovery in this action. S. T. Dougherty was only a tenant in common with others of the land from which timber was taken, manufactured into lumber and sold to plaintiff. And his sale to plaintiff and severance of timber from land did not divest the title of his co-tenants. One tenant in common cannot maintain replevin in his own name, but must join with his co-tenants as plaintiffs in the action. Possession is not sufficient title to maintain replevin. There must be property in the plaintiff, either general or special: Tr. & H. Pract., vol. 2, p. 144; Waterman v. Robininson, 5 Mass. 303; Ludden v. Leavitt, 9 Id. 104; Perley v. Foster, Id. 112; Warren v. Leland, Id. 205; Lester v. McDowell. 6 Harris 91.
   Mr. Justice Mercur

delivered the opinion of the court. November 17th 1879.

This was an action of replevin for a quantity of hemlock lumber. The plaintiff claimed the lumber under a written agreement made between him and his son, Samuel T. Dougherty. The defendant purchased it at sheriff’s sale on an execution against Samuel. The court being of the opinion that there was not sufficient change of possession to vest the property in the plaintiff, directed the jury to find for the defendant. This constitutes the main cause of complaint.

The evidence shows that Samuel owned the undivided one-half of a tract of timber land containing 439 acres, situate in Spring Creek township, Elk county. He also owned an interest in a smaller lot, with a saw-mill thereon. The plaintiff owned no interest in either the lands or mill and had no possession thereof. The agreement declares that Samuel “sells and delivers to the said Thomas Dougherty one hundred thousand feet, more or less, of hemlock timber, board measure, at the rate of fifty cents per thousand feet, board measure; the said hemlock is to be taken off” (the tract aforesaid) “ and the said lumber is to be cut and removed just as soon as it can be ; and in consideration and in connection with the above said Samuel agrees to cut, haul, saw, raft, and run to market the above hemlock timber at the rate of five dollars per thousand, to be paid as the work progresses, and said lumber to be run to any point on.the Allegheny to Pittsburgh.”

Thus the agreement specified no particular trees. None were designated or marked by the parties. No such possession was taken as the nature of the property would have admitted of. Samuel could cut, anywhere on the tract, a sufficient number to make the stipulated quantity of lumber.

The price to be paid per thousand in the tree was not entirely severed from the other part of the agreement. It proceeded to declare “in consideration and in connection” therewith, Samuel was to perform all the work and labor required to convert the trees into lumber, and to run the latter to market. It was substantially an agreement to deliver to the plaintiff, at some market on the river, the quantity of lumber specified, and that it might be cut anywhere on the tract mentioned. He was to pay five dollars and fifty cents per thousand for it delivered at a river market. Fifty cents per thousand feet was for stumpage, and the residue for manufacturing and delivering the lumber.

Both sums were blended together and formed a part of one agreement. The plaintiff did not agree to perform any part of the work in cutting the trees or in manufacturing the lumber, and he did not. He was not present when the trees were cut. He appears to have paid $50 on the execution of the contract, and $400 two and a half months thereafter. After the logs were cut, and before they reached the mill, an employee of Samuel, at the request of the plaintiff, and in his presence, marked the initials of the latter on them. The plaintiff was once at the mill while they were being sawed; but he gave no directions in regard to the sawing. He took no separate possession of the logs and no possession of the lumber. He did not waive nor change the place of delivery named in the agreement. When Samuel piled the lumber at his mill he marked the name of the plaintiff on the piles. The latter was not present, and this worked no actual or legal change in the possession. It indicated a present intention to deliver that specific lumber at some future time, to the plaintiff; but the right of property did not thereby pass. Notwithstanding these marks, Samuel might have substituted other lumber cut from any other trees on the same tract, and it would have been a full compliance with his agreement. Although the plaintiff’s name was thus marked on the piles at the mill, yet the lumber was still to be rafted and run to market by Samuel before the plaintiff was to take possession thereof. While it was yet lying at the mill, and before the plaintiff had accepted it, or it had reached the market where Samuel was to' deliver it, it was levied on and sold as the property of the latter and bought by the defendant. The learned judge was right in holding the plaintiff had not such a possession as to prevent the lumber being sold on execution by a creditor of Samuel. This view being decisive of the case, it is not necessary to consider the other assignments.

Judgment affirmed.