text:
    Catawissa Railroad Company’s Appeal.
    1. The 5th section of the Corporation Tax Act of May 1st 1868, requiring the taxes to be deducted from dividends is not repealed by the 4th section of Act of April 24th 1874; but stands as a necessary part of the system intended to be perfected by the Act of 1874.
    2. No change is made by the Act of 1874 in the nature of the tax.
    3. Commonwealth v. Pittsburg, Port Wayne and Chicago Railroad Co., 24 P. P. Smith 83; Phoenix Iron Co. v. Commonwealth, 9 Id. 104, referred to.
    February 11th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the District Court of Philadelphia: In Equity: Of January Term 1875, No. 65.
    This was a bill by Edward Whelen, for himself and others, stockholders of the Catawissa Railroad Co., against the Catawissa Railroad Co. and the Philadelphia and Reading Railroad Co.
    The allegations of the bill showed that the charter of the Catawissa Railroad Company, under the Act of March 21st 1860, authorized a capital stock of $3,850,000, of which $2,200,000 were to be preferred stock, and $1,100,000 common stock ; the preferred stock to be entitled to a dividend of 7 per cent, per annum ; after the payment of such dividend, the common stock to be paid a dividend of the same amount, and afterwards, the surplus of the net earnings to be divided amongst all the stockholders. It was also provided, that the corporation, by a vote of the preferred stockholders, in the manner set out in the act, might increase the amount of the common or preferred stock. Cn the 5th of October 1872, the Catawissa Railroad Company created 20,000 shares of new preferred stock of the par value of $1,000,000, and leased their road to the Philadelphia and Reading Railroad Company for 999 years.
    The 4th section of the Act of April 24th 1874, enacted that every railroad company and other transportation companies, should be subject to, and pay a tax into the treasury of the Commonwealth annually, at the rate of nine-tenths of one mill upon its capital stock for each one per cent, of dividend made or declared by such company, and in case of no dividend being made or declared by such company, upon either its common or preferred stock, then six mills on a true valuation of the capital stock on which no dividend has been made or declared. The Act of April 24th 1874 repealed several of the sections of the Act of May 1st 1868, to revise, amend and consolidate the laws taxing corporations, &c., but did not repeal the 5th section of that act, which provides that the tax imposed on capital stock by that act, should be paid by the treasurer, &c., of the company, and deducted from the dividends. The Philadelphia and Reading Railroad Company, lessees, refused to admit its liability to pay the taxes, under the 4th section of the Act of 1874. By the terms of the lease, the lessees were to pay the lessors $77,000 semi-annually, in the year 1873; to he increased in the next year to $89,000; in the next year to $101,000, and thereafter $113,000 — these sums were semi-annual. The stock issued in October 1872, was entitled to a dividend of 2J per cent., for the year commencing November 1st 1873; for the year commencing November 1st 1874, a dividend of 4f- per cent.; and for the year commencing November 1st 1876 and thereafter, 7 per cent. — these stipulations for dividends were printed across the face of the certificates of this stock. The Catawissa Railroad Company intended to pay the tax, under the Act of 1874, out of the rent received from their lessees; then to pay a dividend of 7 per cent., in full, on the original preferred stock, and then to distribute the remaining sum to the holders of the new preferred stock, which would throw the entire tax on the fund for the payment of dividends on the new preferred stock, and would reduce the dividend on that stock from $1.16 per share (2J per cent.) to 44 cents per share. When the lease of the railroad was made, it was arranged between the preferred and common stockholders, that stock, equivalent to the arrears of dividend due the preferred stockholders,' should be issued, which was either delivered to the preferred stockholders or sold and the proceeds paid to them. The plaintiff purchased some of this stock ; he averred that the promise of payment of dividends, printed on the face of the certificates, gave him a prior right to both the old preferred stockholders and the common stockholders. He prayed that in case of a deficiency of income to pay dividends on all the stock, the new preferred stock should be declared entitled to full payment before any payments were made on the old preferred stock.
    He further prayed for “a decree declaring the tax in question is a tax upon the stock of the Catawissa Railroad Company ‘ in the ratio of the dividend thereon; that it is a tax upon all stock upon which a dividend is declared, and that it is to be assessed upon the stock called preferred stock, in the ratio of the dividend as well as upon the new preferred stock, and that said Catawissa Railroad Company be enjoined against making any payment to the holders of the preferred stock which will impose upon the holders of the new preferred stock any greater portion of said tax than their agreed dividends of two and one third the per cent, hears to the agreed dividend of seven per cent, due to the preferred stockholders.’ ”
    The tax imposed by the 4th section of the Act of May 1st 1868, on corporations, &c., was “ one half mill for each one per cent, of dividend,” or if no dividends, “then three mills upon a valuation of the capital stock.” By the Act of 1874, the 1st, 2d, 3d, 4th, 7th, 8th and 9 th sections of the Act of May 1st 1868 were expressly repealed.
    The defendants contended that the 5th sect, of the Act of 1868 did not refer to the tax imposed by the Act of 1874, that the taxes imposed by the two acts were of an entirely different character, and that the omission to include the 5th sect, of the Act of 1868, amongst those repealed by the Act of 1874, was because the 5th sect, of the Act of 1868 provided the mode of collecting the taxes accrued under that act at the passage of the Act of 1874, those taxes being still collectable. The plaintiffs contended that the 5th sect, of the Act of 1868-was not repealed, and that the taxes were therefore to be deducted from the dividends.
    The case was heard in the District Court on bill and affidavits, and the court, Hare, P. J., and Briggs, J., decreed, that “an injunction issue restraining the Catawissa Railroad Company, until further hearing, from paying any dividend on the issue of seven per cent, preferred stock, known as the old preferred stock, without deducting therefrom a tax on all dividends declared on said stock since the 24th of April 1874, at the rate of nine-tenths of a mill upon said preferred stock, for each one per cent, of dividend made or declared since said 24th of April 1874.
    The defendants appealed to the Supreme Court and assigned for error:—
    1. Granting the preliminary injunction.
    2. Deciding that the tax chargeable under the 5th section of the Act of April 24th 1874 was under the 5th section of the Act of May 1st 1868, was to be deducted from the dividends payable on the seven per cent, preferred stock of the Catawissa Railroad Co.

      J. JE. Growen, for appellants.

      W. S. Drayton, for appellee.
   Judgment was entered in the Supreme Court, February 23,1875,

Per Curiam.

We are all of opinion that the 5th section of the Act of May 1st 1868 is not repealed by the Act of 24th April 1874, Pamph. L. 70, but stands as a necessary part of the system intended to be perfected by the latter act. In regard to the nature of the tax itself no change has been made. In the Phœnix Iron Co. v. The Commonwealth, 9 P. F. Smith 104, the Acts of 1844 and 1859 were considered, and it was shown that the tax imposed by them was on the capital stock measured by the dividends, but not a tax on the dividends. The Act of May 1st 1868 was but a revision of the former laws, and in express terms imposed the taxes on the capital stock. The subject is referred to in the case of Commonwealth v. The Pittsburg, Fort Wayne and Chicago Railroad Co., 24 P. F. Smith 83. If this case depended wholly on the Act of 1874 and the 5th section of the Act of 1868, the case would be clear against the defendants. But the question of relative liability for the tax, between the first and second preferred stockholders, is m the case, together with the right of the company to adjust this relative liability between the different kinds of stock, in the order of their title to the dividends. That question cannot be determined upon the present state of the ease as it appears before •us. It is a question to be considered, how far the holders of the first preferred stock may be entitled to be heard in a matter affecting their rights. We are not at liberty to determine these questions now. The injunction must therefore be continued, and the case go on to a final hearing, when all parties can be fully heard on a report of a master, which will settle the facts and present the proper points for decision. In the meantime, it is in the power of the company to pay out the undisputed portion of the dividends, and thus prevent any injustice arising from delay.

Decree of the District Court affirmed, and the costs of the appeal ordered to abide the final result.

Appeal dismissed and record ordered to be remitted.


source: Caselaw Access Project

author: Mr. Justice Williams

license: Public Domain

text:
    City of Philadelphia, to the use of Winmill et al., versus Edwards et al.

    1. An ordinance of Philadelphia required owners to pave in front of their property, and on neglect, after twenty days’ notice, “ left or placed on the premises, if the owner was unknown or could not be found,”, the commissioner of highways should pave, and file a lien for the cost. A notice to pave was placed on the premises, “ under a stone which covered it entirely.” Held, not to be a sufficient notice to the owners.
    2. l'he Act of April 19th 1843, relating to defences to municipal claims in “ the incorporated districts of Philadelphia county,” is a restraining act, which takes away a defence that the law would otherwise allow ; it is to be construed strictly and confined to the corporations and districts expressly described in it; it was not intended to embrace the city of Philadelphia.
    3. The Act of February 2d 1854 (Consolidation Act), which takes the districts mentioned in the Act of 1843 into the city, does not extend the provisions of the latter act to the enlarged city.
    4. The Act of 1843 is impliedly repealed by the Consolidation Act.
    5. If the commissioner had authority to contract for the paving, he was bound to do it in conformity with the ordinance.
    February 15tb 1875.
    Before Agnew, 0. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of January Term 1873, No. 322.
    This was a scire facias by the City of Philadelphia, to the use of Joseph B. Winmill and another, against John H. Edwards and Elizabeth R. Edwards, issued October 21st 1871, on a municipal claim, filed November 23d 1870, for $146.26, for paving, &c., against a lot of ground in the Twenty-fifth ward, on the northeastwardly side of Somerset street. y

      An ordinance of Philadelphia of May 3d 1855, provided, that when the councils ordered the paving, &e., of footways of any street, the owner of the ground fronting on the street, should, without delay, and at his own cost, cause such paving to he done, and if he should neglect for twenty days, after having been required by the commissioner of highways, “ or if the owner is unknown, or cannot be found, then after a notice requiring the same shall be left or placed upon the said premises by the said commissioner, he, the said commissioner, or proper authority, shall cause the same'to be graded, paved and curbed, or repaired, as the case may be, and the charge thereof shall be paid by the said owner.” The contractor was authorized to file a lien against the property for the work.
    The case was tried December 9th 1872, before Briggs, J.
    The plaintiff gave evidence that the work, mentioned in the claim, had been done.
    F. F. Herbaugh, supervisor, testified: “ I served a notice on the defendants to repair the footways, by placing it under a stone on the premises, July 16th 1870.'* * * I put this, notice under a stone, which covered it entirely. I am always very particular to do it in that way ; am so instructed. I folded the notice up, and placed it entirely under the stone.’,’
    The court charged: “ I instruct you that there is not sufficient notice to the defendants to pave, and your verdict must be for the defendants.”
    The verdict was for the defendants. The plaintiffs took a writ of error, and assigned the charge of the court for error.

      B. Daniels (with whom were A. A. Grace and G. W. Dedrich), for plaintiffs in error.
    The defendants could defend only on the ground -that the work was not done, &c., or that the price was too great, or that it had been paid: Act of April 19th 1843, sect. 1, Pamph. L. 342; 2 Br. Purd. 1089, pl. 26. The presumption is that all directory provisions have been followed: Fowler v. Jenkins, 4 Casey 178.

      F. 11. ■Janvier, for defendants in error.
    The authority to do the work, although authorized by Act of Assembly, could be exercised only through the ordinance: City v. Lea, 5 Phila. R. 77. If the ordinance is deviated from, there will be no lien: Kensington v. Keith, 2 Barr 218; Dwarris on Statutes 223, n. 29. The Act of 1843 does not preclude the defence of want of notice: Reilly v. Philadelphia, 10 P. F. Smith 467; Pittsburg v. Walter, 19 Id. 367.
   Mr. Justice Williams

delivered the opinion of the court, October 18th 1875.

If the paving in controversy was done under the ordinance of May 3d 1855, as alleged, the defendants were entitled to the notice for which it provides, and if it was not given they were guilty of no default, and the commissioner of highways had no authority to contract for the work or cause it to be done at their expense. This is the plain meaning of the ordinance, and, without ignoring or setting aside its provisions, no other interpretation can reasonably be given to it. If the commissioner of highways may cause the paving to be done without any notice to the owner, then the provision requiring notice can have no force or meaning whatever. Was notice then given to the defendants, as required by the ordinance ? If the notice was folded up and placed upon the premises, under a stone which covered it entirely, as testified by the supervisor, it was clearly insufficient. As it respects the purpose for which the notice was intended it might as well have been put in the supervisor’s pocket and allowed to remain there. Giving notice, by leaving or placing it upon the premises, as required by the ordinance, is not hiding it under a stone.

But it is contended that under the Act of 19th April 1843, Pamph. L. 342,Lthe plaintiff was not bouncTto prove that' any"notice was given to the defendants, requiring them to pave the footway in front of their property, and that they are precluded from raising the question as to the sufficiency of the notice. This point was not made at the trial, and as the act was not given in evidence or otherwise brought to the notice of the court, is evidently an afterthought. The act provides that “ in all actions, whether by scire facias or otherwise, now pending or which may hereafter be brought by the commissioners and inhabitants of the incorporated districts of Philadelphia county, for the recovery of any sum claimed for water-pipe, curbing, paving, work done and materials furnished, and for which the said districts now by law have a lien, /-it shall only be required to be proved by said districts to entitle ( them to recover on the same, that said work was done or the.mate- < rials furnished, and the just value thereof: and upon any such (trial it shall only be lawful for the defendant to deny that the..said work was done 'or material furnished, or prove that the -price ; charged therefor is greater than the value thereof, or that the amount claimed has been paid or released.” Is the plaintiff’s claim within the provisions of the act, if it is still in force ? It is entitled “ a further supplement to the act entitled ‘ An Act to incorporate the district of Southwark,’ ” and is local in its provisions, being limited to actions brought by the commissioners and inhabitants of the incorporated districts of Philadelphia county, for the recovery of any sum claimed for water-pipe, curbing, paving, &c. The territory embraced in the district of Southwark was erected into a separate district for the purpose of making streets, &c., by an act of the colonial legislature, passed the 26th of March 1762, 1 Penna. Laws 248; and was duly incorporated as a district by an Act of Assembly passed the 18th April 1794, 3 Penna. Laws 130. The other districts were incorporated at different times, but Philadelphia was, as it now is, the chief city of the state when the oldest district was incorporated, and doubtless, if it had been intended to be embraced in the Act of 1843, it would have been expressly named. In all the special or local legislation relating to the city of Philadelphia, it is never described or referred to as an incorporated district of Philadelphia county. Why then should we hold that it is embraced in the provisions of the Act of 1843 ? It is not an enabling but a restraining statute. It takes away the right to make a defence which the law would otherwise allow, and is, therefore, to be strictly construed, and its operation confined within the limits of the corporations or districts expressly described therein. If it was not originally intended to embrace the city of Philadelphia, its provisions were not extended to it by the incorporation, within its territorial limits, of the districts embraced in its provisions. There is nothing in the consolidated Act of February 2d 1854, Pamph. L. 21, or its supplements, so far as we discover, that extends the provisions of the Act of 1843 to the city of Philadelphia as thereby enlarged. If it has not been virtually repealed and rendered inoperative by the consolidated act, it is only' applicable to such portions of the city as were embraced in the incorporated districts; and there is nothing in the record showing' that the defendant’s property is in any of these districts. But if the record showed the fact, we think that the act should be regarded as impliedly repealed by the consolidated act. It certainly could not have been intended that the owners of property in one portion of the consolidated city should be allowed to make a'defence to municipal claims which it was not competent for the owners of property in other parts of the city to make. The defendants then were not precluded from setting up the defence that they had received no notice to pave; and, therefore, that under the ordinance there was no authority in the commissioner of highways to contract for the paving at their expense. It does not appear from the record that the councils ordered the street to be paved, and if they did not, it is clear that the commissioner had not even the semblance of authority to contract for the paving of the foot-way, and if they did, he was bound to do it in conformity with the requirements of the ordinance. He had no authority other than that conferred by its provisions. The error assigned is not sustained, and the judgment must be affirmed.

Judgment affirmed'.


author: Mr. Justice Mercur

text:
    Marr’s Appeal.
    1. Where an account is asked on the ground of fraud, it is not sufficient to charge fraud in general terms; particular acts of fraud should be stated.
    2. Fraud without damage is no ground for relief at law or in equity.
    3. Fraud used in obtaining a decree, being the principal point in issue, must be established by proof before the propriety of the decree can be investigated.
    4. A bill of review is never sustained on strict law, against equity.
    5. A guardian may within a reasonable time be called to file and settle his account, although he may have made a settlement with the ward on his arrival at age.
    6. The Act of March 29th 1832, sect. 11, does not prohibit the.Orphans’ Court in all cases from discharging a guardian without his having first settled his account in court.
    7. After a ward has arrived at full age, he may waive his legal rights to an account and join his guardian in asking for his discharge; and the court has power to grant it.
    8. Where there was a settlement with the ward, and a release to the guardian after she came of age, and on the joint application of the ward and her guardian a decree made discharging the guardian, the decree could not be vacated without proof of some specific act of fraud in obtaining it, or of some injury occasioned by it.
    9. The 11th sect, of Act of March 29th 1832, relating to the discharge of a guardian, construed.
    February 16th 1875.
    Before Agnew, C. J., Sharswood, Widliams, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Philadelphia: In the estate of Caroline Gould (now Marr), a minor; No. 305, of January Term 1873.
    On the 28th of September 1867, Caroline Gould presented a petition to the Orphans’ Court of Philadelphia, setting forth that she now resided in Williamsport, Pennsylvania, and “is the daughter of Isaac Gould, deceased, late of Trenton, New Jersey ; that on the 19th day of February A. D. 1864, William Grant was appointed by this court, guardian of the person and estate of your petitioner, and that the estate of the petitioner, to the amount of $50,000, has passed into, or ought to have passed, into the hands of -the said guardian, which your petitioner was not aware of, until a long time after certain releases had been given by said petitioner to said guardian, and that your petitioner is well informed, and believes that her said guardian, William Grant, has filed no account or settlement of the estate whatever. That your petitioner became of age on the 20th day of November A. D. 1866, and that on the 21st day of November A. d. 1866, the said William Grant procured from your petitioner, a release from his guardianship, by misrepresenting the true state of facts to your petitioner —your petitioner not comprehending the object or purport of said release.”
    The prayer was for a citation to the guardian, to file an account of his guardianship.

      A citation was awarded as asked for.
    The guardian answered:—
    “ That he was appointed guardian of the person and estate of the petitioner, by the court, February 19th 1862. That no estate of the petitioner has passed into his hands, or ought to have come into his hands, nor is he under any liability to the petitioner on any account, either-by receipt of estate or negligence in not receiving estate belonging to her, or otherwise, howsoever. That after she became of age she executed the release, with full knowledge of the facts of this respondent’s relation to her estate, and it is not true that he ever made any misrepresentations to her, or that she did not comprehend the object and purpose of said release, and the same was read to her and she fully understood it and acquiesced in it. That thereafter, upon her application through her counsel and attorney of this court, the respondent and his sureties as guardian, were discharged from said guardianship and liability, by this court.
    The discharge of the guardian and his sureties by the Orphans’ Court was on the 22d of December 1866.
    The release was dated November 21st 1866; it recited the respondent’s appointment as guardian, and proceeded:- “And whereas the said William Grant, since his appointment as guardian, has counselled, assisted and advised in the partition and division of the real estate of the said Isaac Gould, deceased, representing the interest of his ward therein, but has not received any of the rents, issues and profits thereof, nor any moneys, interest, proceeds or profits whatever, belonging to or arising from the personal or real estate of the said Caroline Gould, but on the contrary thereof, has paid out, laid out, expended and advanced, divers sums of money for the benefit of the said Caroline and to her use. And, whereas, the said Caroline is now of full age, and a final settlement has this day been made between the said Caroline Gould and the said William Grant, touching all matters and accounts between them:' Now, know all men by these] presents, that I, the the said Caroline Gould, in consideration of the premises, * * * do remise, and for ever discharge and quit claim, the said William Grant, of and from and all manner of actions, suits, &c., * * * concerning the management or disposition of the real or personal estate to which I was entitled as one of the children, next of kin, and heirs-at-law of my said father, Isaac Gould, deceased, whether situate in the state of New Jersey or Pennsylvania, or elsewhere, or for, or by reason of any matter, cause or thing whatsoever, relating thereto, or to the duties or trust imposed upon, or reposed in the said William Grant, as my guardian, as aforesaid.”
    On the 20th of June 1868, the ward presented a second petition, reciting the former petition and answer. She averred “ that the said release was obtained by misrepresentation and fraud, and that she never did authorize or direct any attorney of this court to apply for or consent to the discharge of the said respondent or his sureties, and that any such application was made without her knowledge and consent and against her will. Your petitioner therefore prays that the said alleged release may be declared null and void, and that the said decree of discharge, if such there be, shall be vacated and rescinded, and that the said William Grant may be ordered and directed to file, exhibit and settle an account of his trust aforesaid according to law.”
    The respondent answered this petition, averring “ that it is not true that the release mentioned in his answer to the petition of Caroline Gould first filed against him was obtained by misrepresentation or fraud, or that she never authorized or directed an application for or consent to his discharge of the sureties, or that said application was made either without her knowledge or consent or against her will, but on the contrary the said release was made by her freely, without any misrepresentation or fraud, and with full knowledge of all the facts, and she did voluntarily, of her own free will, consent to said application for his discharge in writing upon the petition therefor, with full knowledge of its purpose and object.”
    An examiner was appointed, who took a large amount of testimony, which was reported to the Orphans’ Court.
    The facts are fully stated in the opinion of Mr. Justice Mercur, and, with the foregoing documents, will sufficiently present the case.
    On the 30th of November 1872 the Orphans’ Court dismissed the petition with costs.
    The petitioner (now Mrs. Marr) appealed to the Supreme Court, and assigned for error, the decree dismissing her petitions.

      JD. W. Sellers, for appellant.
    The law will not support a ward’s release to a guardian made in so short a time after she comes of age : Stanley’s Appeal, 8 Barr 433; Lukens’ Appeal, 7 W. & S. 48 ; Say’s Ex’rs. v. Barnes, 4 S. & R. 114; Will’s Appeal, 10 Harris 332; Kinter’s Appeal, 12 P. F. Smith 318; Witman’s Appeal, 4 Casey 378.

      G. L. Grawford and B. H. Brewster, for appellee.
    If it be apparent that nothing would be due, an account will not be decreed. The real estate belonged to the ward’s brothers and sisters as tenants in common with herself, and they had the right to work it, being responsible to her for the proceeds; her guardian could not stop them : Hilliard on Inj. 372, pl. 31; Twort v. Twort, 16 Vesey 128 ; Filbert v. Hoff, 6 Wright 97. The petitions here are to vacate a final decree, and they should state specific error: Kachlein’s Appeal, 5 Barr 95; Yeager’s Appeal, 10 Casey 173; Russell’s Appeal, Id. 258.
   Mr. Justice Mercur

delivered the opinion of the court, January 17th 1876.

This was an application hy the appellant to have a decree of the Orphans’ Court vacated, which had discharged the appellee as her guardian. The object was to have the decree removed so as to compel him to file and settle the account of his guardianship.

On the day after the appellant became of full age, she had made a final settlement with the appellee. She had then duly executed, under seal, acknowledged and delivered to him, a full release as her guardian, both in New Jersey and in Pennsylvania. About a month after its execution, on the presentation of a petition duly signed and acknowledged by both the appellant and the appellee, he was discharged by a decree of the Orphans’ Court here. More than nine months thereafter she presented her first petition, asking for an order on him to file and settle his final account. After nearly the same interval of time, she presented a second petition, in which she further asked that the release which she had given him be declared null and void, and that the decree be vacated. In neither of the petitions was any distinct act of fraud specifically and particularly averred.

Where an account is sought on the ground of fraud, it’ is not sufficient to make such a charge in general terms, but it should be pointed, and state particular acts of fraud: Bright. Eq. Juris., § 57. The attempt here was to have set aside and vacated, on a general allegation of fraud, a final decree of a court of record. It was a decree made by a court, in regard to its own records, at a time when all the parties were before it. Its jurisdiction of the subject-matter and of the persons was undoubted. She was under no legal disability when it was made. It was then an application to the equitable power of the court to cause it to set aside one of its own decrees.

The application ought not to have been entertained, without some distinct and specific act of fraud having been averred in procuring the decree, and without the additional averment of some specific error and wrong that had been committed, which could not otherwise be corrected. Fraud without damage is no ground for relief at law or in equity: Bispham’s Eq., § 217; Clarke v. White, 12 Peters 178. That a decree obtained by fraud, and resulting in injury, may be impeached, is undoubted. It may be done by original bill, without the leave of the court: 1 P. Wms. 736; 2 Id. 73 ; 3 Id. 111. But the bill must set out the circumstances of the fraud. The fraud used in obtaining the decree is the principal point in issue, and must be established by proof before the propriety of the decree can be investigated: Johnson’s Appeal, 9 Barr 416. It follows then that the court would have committed no .error if it had refused to entertain the application. Having decided otherwise, the obligation rested on the appellant to establish by proof, facts sufficient to show fraud in obtaining the decree.

In looking through the voluminous testimony taken' by the examiner, we discover no such evidence. The appellant appears to have been an intelligent woman, of good business capacity. She was fully conscious that about a month before she united in asking for this decree, she had made a full and final settlement with the appellee, touching all matters and accounts between them.” She knew that on that settlement she had admitted, averred and declared in the release, which she had then executed, that the appellee had not received any of the rents, issues or profits of her lands, nor any moneys, interest, proceeds or profits whatever belonging to, or arising from her personal or real estate; but on the contrary he had paid out, expended and advanced, divers sums of money for her use and benefit.” She knew his functions as her guardian had ceased. She therefore recognised his right to be discharged.

No witness contradicts any fact averred in the release. She does not now allege any of them to be untrue. They are conceded to be true. Being true, they established sufficient grounds for the discharge of the appellee. No fraud was then practised on the court in obtaining the decree.

The appellant, however, claims that the appellee had neglected and omitted to look after her interest in some timber lands and lumber in this state. The facts on which that claim rests are briefly these. Isaac Gould, the father of the'appellant, died intestate at; his residence in Trenton, New Jersey. He left a widow and four children. Three of the children were of full age. The appellant was nearly three years under that age. The appellee also resided at Trenton. He was first appointed guardian for the appellant in New Jersey, and soon thereafter by the Orphans’ Court of Philadelphia. Gould died seised of real estate in New Jersey, and of valuable timber lands in this state; more than a year before the appellant became of full age, she made an agreement with the other heirs for a partition of the lands. The appellee refused to participate in the agreement, and she executed the writing in her own name. Sometime after the execution of this agreement she and one of her sisters, Mrs. Westeott, made an arrangement with Mr. Westeott for the manufacture of lumber on some of the timber lands in this .state, which, under the agreement of partition, were taken by the two sisters. The appellant now complains that Westeott did not fully account to her and pay over the proceeds of her share of the lumber manufactured, and that the appellee is liable to her therefor.

She was nearly of full age when these transactions occurred. About the same time she entered into a contract with Westeott to sell him the undivided half of the mansion property at Trenton, which she took in the partition. After arriving at majority she ratified it by deed, and confirmed the partition made with all the members of the family. She also settled and adjusted with Westcott a claim he had against her for hoard, and for money advanced. Precisely to what extent this may have affected their lumber transactions, or how far she thereby ratified and assumed the contract with Westcott, in her own right, the evidence fails to disclose. This lumber transaction was the act of the appellant and not that of the appellee.

At the time she executed the release, her knowledge relating thereto was vastly superior to his. While in the possession of this information she made the settlement, executed the release, and petitioned for the decree of his discharge. Under all these circumstances it would now be most inequitable to hold him liable for any sum that may be due to her from Westcott. Her application may be considered in the nature of a bill of review, which is never sustained on strict law and against equity: Stevenson’s Executor’s Appeal, 8 Casey 318; Yeager’s Appeal, 10 Id. 173.

The view we have taken does not conflict with Lukens’ Appeal, 7 W. & S. 48; Stanley’s Appeal, 8 Barr 433, and kindred cases. It is not now to be questioned that a guardian may, within a reasonable time, be required to file and settle his account in the Orphans’ Court, although he may have made a settlement with his ward on his arriving at full age.

The 11th section of the Act of 29th March 1832, Purd. Dig. 413, pl. 44, has been urged as prohibiting the Orphans’ Court in all cases from discharging a guardian until he shall have first filed and settled his account in said court. A careful consideration of that section leads us to a different conclusion, and one which accords with the practice in many parts of the state. The whole of that section which precedes the proviso declares, the Orphans’ Court shall have power, upon the petition of any such guardian, to discharge him from the duties of his appointment.” It professes to extend to those cases only in which the discharge is granted on the petition of the guardian alone. The proviso then declares what action shall precede the discharge thus asked for by the guardian. It does not enlarge the application of the enacting part of the section to cases not included within it; but restrains and qualifies its operation. A proviso is something engrafted upon a preceding enactment: 9 B. & C. 835; Dwarr. on Statutes 514. Then, without that enacting clause the proviso has no support. It is not self-sustaining. The basis of its power and the source of its strength is that original root. It extends to the class of cases only which are covered by that enactment. The more prominent thought expressed in this section is to provide for the discharge of a guardian before the ward shall have become of full age. The first proviso, inter alia, directs the surrender of the estate to a subsequent guardian of such ward, or to such other person as the court shall appoint to receive it. The second proviso declares it shall be the duty of the court to appoint some suitable person to appear and act for the ward in respect to the settlement of such account.” It manifestly is not the design of the act to make it obligatory on the court “ to appoint some person to receive the estate” after the ward has passed his minority, whether one month or ten years, nor to act for him, when he is competent to protect himself. But conceding that the spirit of the act also requires that the account of a guardian shall in all cases be filed and settled in the Orphans’ Court, before he shall be discharged under that section, it still limits the' operation of the enacting clause to those cases wherein the discharge is asked for “ upon his own petition.” The act is wholly silent in regard to granting the discharge of a guardian, on the concurring petition and request of a late ward, after he or she shall have arrived at full age. After the ward has arrived at full age, and being sui juris, she may undoubtedly waive her legal rights, and join with her former guardian, in asking for his discharge. When she does so unite in the request, the power of the court to grant it is clear. To deny this, is to impose upon her a guardianship beyond her minority, and make it of uncertain duration. We concede that in such cases the court should act with due caution, and be satisfied that no fraud was being perpetrated, in obtaining the decree of discharge. In this case the court did so act and was satisfied. They are still satisfied that no fraud was practised on them in procuring the decree, and have refused to vacate it. In the face of this action there is no warrant for saying that any fraud was practised on the court. It is sustained by no proof. The record substantially denies it.

We hold that when to a settlement made, and release duly executed by the ward, after she arrived at full age, is superadded, on her concurring petition, a decree of the court regularly obtained, discharging the guardian and his sureties, that decree cannot be vacated without proof of some specific act of fraud in obtaining it, and of some injury occasioned thereby.

The learned judge was therefore entirely correct in dismissing the petitions.

Appeal dismissed, and proceedings affirmed with costs, to be paid by the appellant.

Chief Justice Agnew and Justices Sharswood and Paxson dissented.


author: Mr. Justice Gordon

text:
    Stanfield et al. versus Phillips.
    1. The declaration in an action for malicious arrest was general; under it only such general damages as the law presumes would follow from the arrest could be recovered.

      2. To recover special damages the declaration should set out with particularity the causes which produced them.
    3. Evidence of special damages can be given only where they have been properly averred in the declaration.
    4. In an action for malicious arrest, under the Act of July 12th 1842, of the plaintiff, who was a merchant, the court allowed a witness to be asked, “ in what manner the plaintiff was injured in credit and circumstances and to what extent.1' Held to be error.
    February 23d 1875.
    Before Agnbw, C. J., Sharswood, Williams, Merour, Gordon,- Paxson and Woodward, JJ.
    Certificate from Nisi Prius: No. 223, to January Term 1873.
    This was an action on the case, commenced January 21st 1871, by James R. Phillips against Mark M. Stanfield, Philip II. Went-worth, Lyman B. Jewell, James S. Leavitt and John L. Melcher, trading as Stanfield, Wentworth & Co.
    The action was for damages for the malicious arrest of the plaintiff by the defendants. The plaintiff, in 1870, was in partnership in Philadelphia with his brother, Fleming S. Phillips, under the firm of J. R. & F. S. Phillips. They had had dealings to a large amount with the defendants, who were merchants in New York. The Phillips’ being considerably indebted to the defendants, about the 17th of November 1870, the defendants wrote to them requesting a settlement; the Phillips’ and defendants, after two or more interviews, having failed to come to an arrangement satisfactory to the defendants, one of their firm came to Philadelphia, and on the 17th of January 1871, had both of the brothers arrested by a warrant of arrest, under the Act of 1842, for fraudulently removing their property, and with having procured goods from the defendants with intent not to pay for them, but to convert them to their own use, &c. On a hearing before Mr. Justice Sharswood, they were both discharged.
    The declaration was:
    That, whereas, the said defendants, on the 17th day of January 1871, at, &c., not having any reasonable cause whatsoever against the said plaintiff for which they caused him to be arrested, as hereinafter mentioned, but contriving and intending to injure the said plaintiff, falsely and maliciously caused to be issued and prosecuted out of the said court by the Honorable George Sharswood, one of the justices thereof, against the said plaintiff, a certain warrant of arrest, &c., * * * to arrest the said plaintiff upon the complaint of the said defendants, that the plaintiff, with one Fleming S. Phillips, were then and there about to remove their property out of the jurisdiction of the said court, with intent to defraud their'creditors, and that they then and there had property which they fraudulently concealed, and that they had assigned, removed, and disposed of, and then and there were about to dispose of some of their property, with intent to defraud their creditors, and that they had fraudulently contracted the debt for which the said suit was brought, and the said defendants * * * caused the said warrant of arrest to be delivered to the sheriff, to be executed according to law, and the said defendants * * * caused the said plaintiff to be arrested under and by virtue of the said warrant of arrest, and to be detained and imprisoned thereon * * * until the 17th day of January, in the year aforesaid, when the said plaintiff, to obtain his liberation, procured a certain person to become bound by bond for the appearance of the said plaintiff before the said Honorable George Sharswood, justice as aforesaid, according to the exigency of the said warrant of arrest, for a hearing upon the charges and allegations aforesaid. And the said plaintiff avers that such proceedings were thereupon had before the said justice, that on the 21st day of January, in the year aforesaid, it was considered by the said justice, upon the hearing of the said complaint and allegations of the said defendants, that the same were not in anywise substantiated, and that the said plaintiff should be then discharged and go without day, and by means of the premises the whole proceedings are wholly ended and determined. By means of which said several premises, he, the said plaintiff, during his said imprisonment, suffered great pain and anxiety of body and mind, and was prevented from transacting his necessary affairs and business by him during that time to be performed, and thereby also the said plaintiff necessarily incurred divers costs and expenses, to wit, to the amount of $500, in and about the obtaining of his release from the said arrest and imprisonment, and in and about the defending himself against the said warrant of arrest, and in and about the other premises and by means of the premises the said plaintiff was and is injured in his credit and circumstances and otherwise greatly damnified, &c.
    The case was tried at Nisi Prius, March 18th 1873, before Mr. Justice Williams.
    The plaintiff gave in evidence the affidavit of one of the defendants on which the warrant of arrest was issued ; also, his arrest by the sheriff’s officer, by virtue of the warrant and bringing him before Judge Sharswood, on the 17th of January 1871; his giving bail for his appearance for a hearing on the 21st of the same month, and his discharge at that time by the judge.
    E. S. Phillips, for plaintiff, testified as to the dealings of his firm and denied the allegations in the affidavit for the warrant of arrest.
    The plaintiff proposed to show in what manner he was injured in credit and circumstances and to what extent.

      This was objected to, “because no special damage is averred in the declaration, because the evidence should be confined to specific acts of damage, and because the matters were not elements of damage to be recovered in this action.”
    The offer was admitted and a bill of exceptions sealed..
    The witness testified :—
    “ First, defendant prevented carrying out amount for examination. That arrangement was not carried into effect. We paid all the money we had to our creditors — which deprived us of means to carry. Made ill by it. Cause of preventing other creditors from acceding to other propositions. Our hands were completely tied. Not able to conduct our business on account. Caused us to suspend business. This was commencement of it, — all our trouble, — primary cause of it. Had to pay our legal fees ; compared to our other troubles that very light, — about $1000 for both.”
    Witness testified also that his firm did not give notes ; that they did not care to give notes to any one; that they did not buy for notes and then refuse to give them; they had not refused giving notes when they contracted to give them.
    The plaintiff testified that he had bought the goods on four months ; they did not at any time contract to give their notes to defendants. Also, that a memorandum “ Four months notes,” which was on all the bills was not construed by him to mean that those were the terms; in some cases the terms were notes on discount.
    The plaintiff gave other evidence for the purpose of showing malice and want of. probable cause in his arrest.
    The defendants gave evidence in answer to the plaintiff’s case. Amongst other things, they offered in evidence a letter from the plaintiff’s firm, dated October 7th 1870, to E. 0. Tufts '& Co., as tending to prove that by the terms of purchase from defendants, the plaintiff’s firm were bound to give notes in settlement of their accounts at the expiration of sixty days, in case they did not exercise the option of discounting the bill; and also as tending to contradict the plaintiff and his brother on this point. [The letter was not set out in the paper-book.]
    The court rejected the offer and sealed a bill of exceptions.
    In the course of the trial a number of rulings on offers of evidence were made, for which bills of exceptions were sealed for the defendant.
    The defendants submitted a number of points.
    The grounds of the decision of the Supreme Court do not require any further statement of the case.
    The verdict was for the plaintiff for $15,000.
    A motion was made for a new trial, which was overruled upon the plaintiffs agreeing to remit $5000 of the verdict.

      The defendants had the case certified to the court in banc and assigned twenty errors.
    The 1st and 2d errors were the admission of evidence to show in what manner the plaintiff was injured in credit and circumstances, and to what extent.
    5. In overruling the defendants’ offer of the letter of E. 0. Tufts & Co.

      S. Diclcson and J. 0. Bullitt (with whom was L. 0. Qassidy), for plaintiffs in error.
    As to the 1st and 2d assignments: No such special damages as were given in evidence were laid in the declaration : Hart v. Evans, 8 Barr 13 ; Good v. Mylin, Id. 51; Bryce v. Bailiff, 1 Campbell 58. The damages must be the natural and necessary result of the injury: McKnight v. Ratcliff, 8 Wright 156; Pittsburg Coal Co. v. Foster, 9 P. F. Smith 365; 1 Chitty’s Pleadings 396; Kelly v. Partington, 5 B. & Ad. 645.

      0. Gibbons and Wm. L. Hirst, for defendant in error,
    as to the 1st and 2d assignments, cited: Hood v. Palm, 8 Barr 237; Swan v. Saddlemire, 8 Wend. 676 ; Laing v. Colder, 8 Barr 479 ; Hart v. Evans, 8 Barr 13.
   Mr. Justice Gordon

delivered the opinion of the court, March 15th 1875.

The declaration, in this ease, was general, and therefore only such general damages as the law would presume to flow from the illegal arrest complained .of could be recovered under it: 1 Chitty’s Pl. 395. If the plaintiff desired to recover special damages he should have set forth the cause which produced them with particularity, in order that the defendants might know with certainty what they had to meet. This rule imposes no hardship upon the plaintiff, and the enforcement of it is but a matter of justice to defendant.

The above stated rule, of course, governs the evidence which should be admitted in such cases. Evidence of special damage may only be given where the way has been prepared for it by proper averments in the narr.

It is evident, therefore, that the learned judge, who tried this cause at Nisi Prius fell into error in admitting the testimony which followed the plaintiff’s offer to show, “ in what manner the plaintiff was injured in credit and circumstances, and to what extent ?” The offer itself indicates its special character, and the defendants object to it on that ground. If, however, there was any doubt on that subject, it was fully and completely dissipated by what followed. Proof was made by Fleming S. Phillips, on the part of the plaintiff, that the consummation of an arrangement, which they, that is, the copartnership composed of the witness and the plaintiff, under the name of J. It. & F. S. Phillips, had with their creditors for an extension of time on their claims, failed by reason of the illegal action of the defendants in the prosecution and arrest of the plaintiff; that they were thereby obliged to pay out all their moneys upon their debts, and were thus deprived of means with which to carry on business ; that this action on the part of the defendants, caused the plaintiff’s illness, and prevented their creditors from acceding to their propositions; that it embarrassed them in the conduct of their business, and led to their suspension.

Now, if it be the law, as stated by Chitty, in his work on Pleading, vol. 1, pp. 396-7, that the plaintiff, in an action for false imprisonment, may not, unless the fact be specially stated in his narr., give evidence that his health was injured thereby, how can the testimony as above set forth be admissible under the pleadings in this case ? We see, from the a|)ove stated rule, that proof of the only direct personal effect stated in the testimony, i. e., the plaintiff’s illness, was inadmissible, much more the remoter consequences which resulted to him through the embarrassments of his firm. These are not consequences which the law presumes to arise from an arrest, and hence they should have been excluded from the case.

But, it is argued, that the offer was general, and if improper evidence was received under it, it was the duty of the defendants to call the attention of the court thereto, and have it excluded. But we are not willing to admit, as we have before intimated, that his offer was general. Its terms indicated what followed. The proposition was to prove in what manner, that is, how, in what way, or by what means, the plaintiff was injured in his credit and circumstances. But the law presumes that the manner or way in which the plaintiff was injured, was by the malicious arrest and prosecution, and of these the necessary proofs were already before the court. Then clearly, the plaintiff, by his offer intended either to go farther than this, by introducing some special matter, or to re-introduce evidence which had just been received, and about which there had been no dispute. As the latter presumption is absurd, nothing remains but the former. Thus the special character of the offer was demonstrated by the very circumstances under which it was made, and it should therefore have been excluded from the case.

We discover no other error in the record or rulings which needs correction, except that the letter dated October 7th 1870, J. R. & F. S. Phillips to E. O. Tufts & Co., offered by the defendants, as tending to contradict the testimony of the plaintiff and his brother, should have been admitted.

The judgment is reversed, and a venire facias de novo awarded.

Williams and Mercur, JJ., dissented.


text:
    Haubert versus Haworth.
    1. Mortgagor sued mortgagee for not entering satisfaction on a mortgage which mortgagor alleged had been paid; afterwards mortgagee issued a sci. fa. on the mortgage, and also entered judgment on the bond accompanying it; the mortgagor obtained a rule to open the judgment. Pending all these proceedings the parties made an agreement that the suit for not entering satisfaction and the issue on opening the judgment should be stayed, “ and the issues and questions arising therein be settled and determined, by the final judgment” in the sci. fa. There was a verdict for the mortgagor in the sci. fa. The mortgagee in the action against him for not entering satisfaction pleaded that the mortgagor had agreed “ that the issue and questions arising in this suit should be settled by the final judgment” in the sci. fa. Held, that the plea was bad, either as in abatement or in bar, or as a plea of submission and award.
    2. The verdict for the mortgagor in the sci. fa. was conclusive that the mortgage had been paid, and therefore the mortgagee was in default in not entering satisfaction on the mortgage.
    3. The agreement was not a bar to the action for not entering satisfaction ; it was that the issues, &c., in that case should be determined according to the judgment in the sci. fa.
    February 26th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of July Term 1873, No. 84.
    This was an action on the case, brought February 28th 1867, No. 360 to March 1867 of the court below, by Adam S. Haubert against James Haworth, for damages for refusing to enter satisfaction on a mortgage from the plaintiff to the defendant — the plaintiff alleging that the debt secured by the mortgage had been paid.
    The declaration set out the execution and delivery of a mortgage dated March 8th 1866, to secure the payment of a bond conditioned for the payment of $2000; the payment on the 11th of October 1866, of the amount of the bond; the request of plaintiff to the defendant to enter satisfaction, the tender of costs, and refusal by defendant to enter satisfaction, notice to defendant, &c.
    The defendant pleaded non-assumpsit; also,.that the plaintiffs and not paid the debt of $2000, secured by the mortgage, but that the same still remained unpaid and due.
    The defendant further pleaded an agreement, “ that the issue and questions arising in this suit, should be settled and determined by the final judgment in a suit then depending between him the said plaintiff and the said defendant in this court, instituted to March Term 1870, and No. 770.”
    The case was tried January 3d 1873, before Hare, P. J.
    The plaintiff gave in evidence a purchase-money mortgage from himself to one Geisse; also, the mortgage mentioned in the declaration from plaintiff to defendant; also, scire facias on defendant’s mortgage, to March Term 1867, No. 770, in which there was a verdict for the defendant, January 25th 1872; also, notice November 6th 1866 of plaintiff to defendant to enter satisfaction, with tender of costs, &c. Also, record of entry of judgment on the bond accompanying the mortgage to defendant to June Term 1867, No. 403, in which plaintiff (Haubert) obtained a stay and a rule to open this judgment; conveyance by plaintiff of the land bound by the mortgage to Peter Haubert, July 17th 1867.
    The agreement referred to in the special plea was :—
    “ Adam S. Haubert v. James Haworth. D. C. March Term 1867, No. 360.
    James Haworth v. Adam S. Haubert. D. C. March Term 1867, No. 770.
    James Haworth v. Adam S. Haubert. D. C. September Term 1867, D. S. B., No. 403.
    Agreed that all further proceedings in the above actions, March Term 1867, No. 360, and September Term 1867, D. S. B., No. 403, be stayed, and the issue and questions arising therein be settled and determined by the final judgment in the above-named action, March Term 1867, No. 770, in which defendant ‘will waive the question of mortgage not due, and let an issue be made as to payment of mortgage only.’
    O’Brien, Att’y for James Haworth. Lewis C. Cassidy, for Haubert.
    Philadelphia, Oct. 30th 1867.”
    There was evidence by plaintiff of actual payment of the mortgage, and of expenses incurred by him in relation to the suits upon it and evidence of defendant in contradiction.
    The defendant asked the court to charge :
    1. That as plaintiff has not proved that defendant had received $2060 before request to satisfy, the verdict must be for defendant.
    2. That plaintiff can recover no damages, except that arising from October 11th 1866 to July 17th 1867, the time he parted with his title.
    3. That plaintiff can recover only for the expenses other than counsel fees incurred by him in defence of the suit on the mortgage ; and as no evidence has been given of any such expense, the verdict must be for nominal damages only, although the jury believe plaintiff paid the mortgage debt before the request.
    4. That defendant is entitled to a verdict on the special plea, filed in court January 3d 1873.
    The court refused the 1st, 2d and 3d points, and affirmed the 4th.
    The jury found a verdict for the plaintiff for $1500, and for the defendant on the special plea.
    Judgment was entered for the defendant.
    The plaintiff removed the record to the Supreme Court by writ of error, and assigned for error, that the court erred,

      1. In directing a verdict on the special plea and entering judgment on the verdict.
    2. In not entering judgment on the verdict for the plaintiff.

      P. Archer, Jr. (with whom were S. Waheling and L. Q. Gassidy), for plaintiff in error.
    The special plea if treated as a plea in abatement was out of time: Good Intent Co. v. Hartzell, 10 Harris 277; Irvine v. Lumbermen’s Bank, 2 W. & S. 209, The pendency of a former action for the same cause is pleadable only in abatement', and material only when thus pleaded: Commonwealth v. Cope, 9 Wright 164; Findlay v. Keim, 12 P. F. Smith 117. The plea of a former action pending, without more, was an immaterial issue, and no judgment on the verdict on that plea could be entered for the defendant; the verdict did not help the plea : Tams v. Lewis, 6 Wright 402. A plea averring that the former action was “ depending and undetermined at the commencement of the present suit,” without averring that it was still pending at the time of plea pleaded, is bad: Toland v. Tichenor, 3 Rawle 322; Smith v. Lathrop, 8 Wright 326. The plea as a plea in bar does not allege that the cause of action was the same; that the parties ever pleaded to issue; that there was ever a trial or judgment thereon, not reversed, satisfied or made void ; these are all essential averments to make good the plea : 3 Chitty on Plead. 929, note d. 956. The plea averred an agreement dated in 1867, as having been made in an action commenced in 1870. It was a question to be tried by inspection of the court and not for the jury : Rockwell v. Langley, 7 Harris 509; 1 Selwyn’s N. P. 617 and in notes; Finley v. Hanbest, 6 Casey 190; Bitzer v. Killinger, 10 Wright 44. It should appear of record that the matter had been decided in a court of concurrent jurisdiction ; that it was between the same parties, &c.: Marsh v. Pier, 4 Rawle 273 ; Coleman’s Appeal, 12 P. F. Smith 272; Swayne v. Lyon, 17 Id. 441; Tams v. Lewis, 6 Wright 402. As a plea of submission of the claim to the decision of the sci. fa. -on the mortgage it is bad, because there was no averment of award or performance : 3 Chitty’s Plead. 928 ; Horbach v. Huey, 7 Watts 532. The plea should have averred more than a submission to abide the verdict on the mortgage: Thompson v. Charnock, 8 T. R. 139 ; Mitchell v. Harris, 2 Vesey Jr. 129; Elliott v. Heath, 13 N. H. 131; Chapman v. Secomb, 36 Maine 102 Smith v. Barse, 2 Hill 387 ; Nettleton v. Gridly, 21 Conn. 531; Hayes v. Blanchard, 4 Vt. 510; Leonard v. House, 15 Geo. 473; Scott v. Barnes, 7 Barr 134 ; Wells v. Lain, 15 Wend. 99 ; Jones v. Powell, 6 Dowl. 483 ; Gore v. Chadwick, 6 Dana 477. To affect the parties, the agreement should appear of record: Stokely v. Robinson, 10 Casey 315; Morse on Arbitration and Award 18; Russell on Arb. 486. The construction of the agreement was for the court: Miller v.
      Fichthorn, 7 Casey 252 ; and is reviewable here on error: Bank v. Eyer, 10 P. F. Smith 440. The intent of the parties to the prospective submission is apparent, and is not tobe enlarged beyond the plain terms used: Lauman v. Young, 7 Casey 306; Miller v. Fichthorn, 7 Casey 255. As to the binding operation of the contract, it having been made by counsel, counsel have no poiver to compromise their clients’ claim, without their clients’ sanction or authority : Rowland v. Slate, 8 P. F. Smith 196; Stokely v. Robinson, 30 Casey 315; Holker v. Parker, 7 Cranch 449; Swinfen v. Swinfen, 5 Hurlst. & Norman 890. As to the amount of the verdict, failure to enter satisfaction on a paid mortgage subjects the mortgagee to the payment of any sum not exceeding the mortgage-money : Act of May 28th 1715, sect. 10 ; 1 Smith’s Laws 95; 1 Br. Purd. 481, pl. 116 ; Henry v. Sims, 1 Whart. 187 ; Allen v. Conard, 1 P. F. Smith 487.

      D. W. Sellers, for defendant in error.
   Mr. Justice Williams

delivered the opinion of the court, October 18th 1875.

This was an action, under the statute, to recover damages for the defendant’s refusal to satisfy a mortgage given by the plaintiff. The jury found a verdict in favor of the plaintiff on the issues under the pleas of “non-assumpsit, and that the mortgage was unpaid, and was still due, &c.,” and assessed his damages at $1500; they found for the defendant in the issue under the special plea filed at the trial, .averring that the plaintiff, on October 30th 1867, agreed in writing with him, that the issue and questions arising in this suit should be settled and determined by the final judgment in a suit then pending between the said plaintiff and the said defendant, instituted to March‘Term 1870, and numbered '770. The court entered judgment in favor of the defendant on the finding of the jury on the special .plea. The only question presented by the record is, was the judgment rightly entered ? The authorities cited in the able argument of the counsel for the plaintiff in error clearly show that the special plea is bad, whether it be regarded as a plea in abatement or a plea in bar; and that it is insufficient as a plea of submission and award. It is not necessary that we should go over the ground so fully explored by counsel; or that we should add anything by way of argument or illustration in support of either of these positions. The authorities referred to conclusively show that the plea is bad in whatever aspect it may be regarded. Let us then come to the agreement itself, and see whether, if it had been properly pleaded, in connection with the record of the final judgment in the case to which it refers, it would have constituted a valid defence to the plaintiff’s action. Treating the agreement, then, as if it had been made by the parties themselves, or by their express authority, is it a bar to the plaintiffs right to recover ? In order to ascertain its true intent and meaning, it must be interpreted with reference to its subject-matter, with the light shed upon it by the surrounding circumstances. What then is the subject-matter of the agreement, and under what circumstances was it made? Three suits were then pending between the parties, all of which are set out in the caption of the agreement and numbered as of the term to which they wrnre brought. The first in the order of time was the action brought by the plaintiff against the defendant (No. 360, March Term 1867), to recover damages for his refusal to satisfy the mortgage, the record of which is now before us ; the case was then at issue on the plea of non-assumpsit, and that the mortgage was never paid and was still due, &c. The second was an action of scire facias on the mortgage (No. 770, March Term 1867), brought by the defendant in error against the plaintiff in error, to which the latter had filed an affidavit of defence, setting forth that he had paid the debt which the mortgage was given to secure. The third was a judgment D. S. B. (No. 403, September Term 1867), in favor of the defendant in error against the plaintiff in error on the bond, with warrant of attorney, secured by the mortgage on which execution had been issued, and in which a rule to open the judgment was pending on depositions. Under these circumstances, and with reference to these suits, it was “ agreed that all further proceedings in the above actions, March Term 1867, No. 360, and September Term 1867, D. S. B. No. 403, be stayed, and the issue and questions arising therein be settled and determined by the final judgment in the above action, March Term 1867, No. 770, in which defendant will waive the question of mortgage not due, and let an issue be made as to payment of mortgage only.” The agreement signed by the'counsel of the respective parties bears date the 3d of October 1867.

The scire facias on the mortgage was tried by a jury, and a verdict rendered for the defendant (the plaintiff in error) on the 25th of January 1872, on which judgment was entered 25th May 1872. The verdict and judgment for the plaintiff in error conclusively established the fact that the mortgage was paid, and if so, the defendant in error was in default in not satisfying it of record as required by the plaintiff, the defendant in the scire facias. How then is the agreement to be interpreted ? What was its object, and what wras the intention of the parties in making it ? Did they intend that all further proceedings in the action for damages for not satisfying the mortgage, and in the judgment on the bond accompanying the mortgage, should be stayed for all time, and that there should be no further proceedings in either of the eases, whatever might be the result of the trial in the scire facias ? Did the plaintiff intend that if the verdict and judgment were in his favor, that he should have no right to proceed in the action which he had brought, and recover the damages which he had sustained by the defendant’s refusal to satisfy the mortgage ? And did the latter intend that if the verdict and judgment were-in his favor, that he should have no right to proceed on the judgment on the bond accompanying the mortgage, if the mortgaged premises were not sufficient to pay the debt ? If the parties intended that the stay of proceedings for which the agreement provides, should be equivalent to a discontinuance, why did they not agree to discontinue the cases and make provision for the payment of the costs ? Why keep them open and pending if no proceedings could be had in either after final judgment in the scire facias ? The agreement does not declare in terms that the stay shall be absolute and unconditional, and there is nothing in the language from which it is necessarily implied. It does not provide that the actions, but that the issue and questions arising therein shall be settled^ and determined by the final judgment in the scire facias ? How settled and determined ? Does this mean that there shall be but the one judgment in the three cases, and that it shall determine and be the measure of the rights and liabilities of the parties in each and all of the cases ? If so, why was payment of the mortgage made the only issue ? Why was there not a provision that if found in favor of the plaintiff in error, that the jury should assess the damages which he had sustained by the refusal of the defendant in error to satisfy the mortgage ? Did the parties intend to give up any of their substantial rights, or did they enter into the agreement for the purpose of having them ascertained and determined with the least trouble and expense ? Did they not know that a final judgment in the scire facias in favor of the plaintiff in error, would be conclusive of his right to recover in this case, and that if in favor of the defendant in error, it would be conclusive of his right to proceed on the judgment upon the bond accompanying the mortgage ?' Did they not intend that the issues and questions in these cases should be settled and determined by,” that is — according to — the final judgment in the scire facias ? The preposition by” is often used in this sense, and this is one of its definitions, Webster’s Dictionary, ad verlum, and is-evidently its meaning as used by the parties here. The stay of further proceedings in the actions referred to was then not to be absolute, but terminable. Nor were the actions to be ended and determined by the final judgment in the scire facias; hut the issue and questions therein were to be settled and determined in accordance with the final judgment in that case. This, as it seems to us, is the reasonable interpretation and obvious meaning of the agreement. And if so, it is no bar to the plaintiff’s right to recover the damages found by the jury. This construction of the agreement renders it unnecessary to determine- whether the parties were bound by it, if it was made without their authority and consent, or whether in the absence of all proof on the subject, their consent must be presumed.

Judgment reversed, and judgment for the plaintiff in the sum of fifteen hundred dollars, the amount found by the jury, with interest thereon from January 4th 1873.


text:
    Fisher versus Saylor.
    1. Fisher sold a house to Saylor, agreeing to make good any loss of Saylor in a resale. Saylor sold for less than he gave. In an action against Fisher for the difference there was- evidence that the sale of Saylor was collusive and fraudulent. In answer to a point the court charged, if there was any collusion between Saylor and his vendee in the sale then Saylor “ cannot recover more than the difference between a fair price for the house, and the amount paid to Fisher.” Held to be error; the fraud would prevent Saylor from maintaining the action.
    2. Although there were no fraud in the original contract the foundation of Saylor’s right of action, yet as the sale by him was a condition precedent, he was bound to sell in good faith, and if the sale was collusive, it was fraudulent as to Fisher ; it was as if there had been no sale and there was no right of action..
    3. If the sale had been honestly made, although for less than the market value, Saylor could recover the difference between a fair value and the price paid Fisher.
    4. A right of action cannot arise out of a fraudulent contract, nor out of the fraudulent performance of a condition of the contract.
    March 2d 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon and Paxson, JJ.
    Error to the Court of Common Pleas of Schuylkill county: Of January Term 1873, No 112.
    This was an action of assumpsit, brought to the June Term 1870, of the court below, by Daniel Saylor against Daniel B. Fisher.
    The plaintiff’s cause of action was, that on the 1st of August 1864, he had sold certain real estate in Schuylkill county to the defendant; in payment of the consideration the defendant, amongst other things, conveyed to the plaintiff a house in Philadelphia at $950, under an agreement that if the defendant came whole out of the real estate he bought, he would make up to plaintiff any loss he might sustain on the sale of the house. In March 1868, the plaintiff sold the house for $133.33; the suit was brought to recover the difference between that sum and $950.
    The case was tried March 20th 1872, before Walker, J.
    The plaintiff testified as to the sale of the two properties; after some negotiation as to the plaintiff taking defendant’s house in part payment, the defendant said that if plaintiff would take the house, he, defendant, would sustain all losses plaintiff might have, if he, defendant, did not lose on the land; the plaintiff then “ told him, if you lose on the land, I do not want you to make up my loss on the house. He then agreed to that, provided that he came out whole on his land.” He testified that he had sold the house to Mahlon H. Saylor, his brother, for $133, and that was all he had got out of the property.
    On cross-examination, plaintiff testified that the sale to his brother was a private sale; he had not advertised the property for sale; he had not given the defendant notice that he was about selling the house. He gave evidence that the defendant had made a profit on the land sold to him. He gave evidence for the purpose of showing that the house was of little value and was sold for as much as it was worth.
    The purchaser testified that he was agent for the plaintiff, for three adjoining houses, including the one in question ; he bought the three for $400, held them for about a year and sold them for $1750, after having put some repairs on them.
    The defendant testified as to the original contract and as to the value of the house. He had not known of its sale till he was informed by letter from plaintiff. He saw plaintiff, who told him for what he had sold it, and asked him to pay the difference; the defendant refused, saying that he would have taken the house back at the price he had sold it for; plaintiff said he could not do that, as it was sold.
    The defendant gave evidence that the house in question was the most valuable of the three sold by plaintiff to his brother; and that the two others had been sold about seven months after the sale by the brother for $1620; that the house in question was worth $900 to $950, and that it had been sold to defendant for $950 in July 1864.
    The evidence of defendant was principally to show that the sale by the plaintiff to his brother was collusive and fraudulent.
    Amongst other things, the defendants requested the court to charge:—
    “ That the sale being private and without notice to the defendant, and to the brother of the plaintiff, the jury are to scan the evidence closely, and if there be any evidence of collusion in the sale from the plaintiff to his brother, there can be no recovery in this case by the plaintiff.”
    The court answered :—
    “We say that if there was any collusion between Daniel Saylor and Mahlon Saylor in the sale of the property, then the plaintiff cannot recover more than the difference between a fair price for the house and the amount paid to Fisher.”
    The verdict was for the plaintiff for $500.
    The defendants took a writ of error, and, amongst other things, assigned for error the foregoing instructions of the court.

      6r. It. Kaercher and Gr. F. Farquhar (with whom was F. W. Hughes}, for plaintiff in error.
    If the sale of the plaintiff to his brother was fraudulent, there could he no recovery at all. Collusion resulting in loss to a third person is the same as fraud : Kerr on Fraud 195; Miller’s Appeal, 6 Casey 492; Blystone v. Blystone, 1 P. F. Smith 376; Evans v. Matson, Id. 372. The sale by Saylor of the house to determine his loss was to be bond, fide ; if fraudulent, no right of action against Fisher could be deduced from it: Gilbert v. Hoffman, 2 Watts 66.

      J. W. Ryon (with whom was J. Wright), for defendant in error.
    Fisher was compensated by allowing full value for the house, being more than Saylor had sold it for: Sedgwick on Damages 333, 334, 655, 656, 657; Page v. Parker, 40 N. H. 47; Thompson v. Burgey, 12 Casey 403; Hahn v. Cummings, 3 Iowa 583 ; Reynolds v. Cox, 11 Indiana 226.
   Mr. Justice Williams

delivered the opinion of the court, October 18th 1875. .

The defendant below purchased of the plaintiff an undivided interest in certain real estate in Schuylkill county, and conveyed to him a house and lot in the city of Philadelphia, in part payment of the consideration, and agreed that he would make good any loss the plaintiff might sustain in the sale thereof, if he came out whole in the sale of the land. The plaintiff sold the house and lot for about one-seventh of the price for which the property was conveyed to him, and brought this action to recover the difference. The defendant admitted that he had sold the land at a profit, but alleged that the plaintiff had fraudulently sold the house and lot at an undervalue, and for this reason, among others, was not entitled to maintain the action. It appeared from the plaintiff’s own testimony, that he sold the property to his brother at private sale, without advertising it, or giving the defendant notice of his intention to sell it; and it was shown by a number of witnesses, well acquainted with the property, that it was sold for a price greatly below its value, and for much less than it would have brought at public sale. The defendant contended that the circumstances under which the property was sold, as disclosed by the evidence, showed that the sale was collusive and fraudulent, and he requested the court to charge the jury that if there was any evidence of collusion' in the sale, from the plaintiff to his brother, there can be no recovery by the plaintiff. In answer thereto, the court said, that if there ivas any collusion between the plaintiff and his brother, in the sale of the property, then the plaintiff cannot recover more than the difference between a fair price for the house and the amount paid to the defendant. This instruction is assigned as error, and presents the only material question in the case. Was the plaintiff then entitled to recover the difference between what the property was fairly worth and the sum or price for which it was conveyed to him, if the sale was collusive ? Or was it such fraud as would disable him from maintaining the action ? It is strenuously insisted, on behalf of the plaintiff below (the defendant in error), that this instruction was correct, for the reason that the plaintiff’s right of action was founded on the contract, and if there was no fraud in the contract, it was valid and binding on the parties, and the plaintiff’s subsequent fraud in the sale of the property, could not have the effect of avoiding the contract, or of extinguishing his right of action thereon. Its only effect, as contended, would be to prevent the plaintiff from using the sale as evidence of the value of the property, or of the amount of the loss which he had sustained, but it would not prevent him from recovering the difference between the actual or market value of the property and the amount for which it was conveyed to him. It is true that the plaintiff's right of action is founded on the contract, and though it was honestly made, it does not follow that the plaintiff is entitled to maintain an action upon it, if the sale was collusive and fraudulent. By the very terms of the agreement, no liability could arise upon the contract, unless the plaintiff sold the property for less than the sum for which it was conveyed to him. A sale of the property was, therefore, a condition precedent to his right of action. But it was his duty to sell the property, in good faith, for the best price that could be obtained for it, and if he collusively sold it for less, the sale was a nullity, so far as respects the defendant; and if so, the plaintiff has no more right to maintain the action than he would if he had made no sale. If the sale was collusively made, for the purpose of defrauding the defendant, why should the plaintiff acquire any right of action against him thereby ?

If it had been honestly and fairly made, though for less than the actual or market value of the property, tbe plaintiff might be entitled, as'the court instructed the jury, to recover the difference between what the property was fairly worth and the price at which it was conveyed to him. But if it was collusive, and made with the intent of defrauding the defendant, the plaintiff, if entitled to maintain the action, can only maintain it through and by means of the fraudulent sale. But what difference does it make, so far as it respects the plaintiff’s right to maintain the action, whether the fraud through which he claims was in the making of the contract, or in making the sale ? If a right of action cannot arise out of a fraudulent contract, why should it arise out of the fraudulent performance of a condition of the contract upon which the right of action depends? To hold that it might, would be a palpable disregard of the maxim that no man shall take advantage of his own wrong, nor be allowed to found any claim upon his own iniquity: Nemo ex proprio dolo consequitur actionem. The court, therefore, erred in instructing the jury in effect, that if there was collusion between the plaintiff and his brother in the sale of the property, the plaintiff might recover the difference between a fair price for the house and the amount paid to the defendant. But there 'was no error in not affirming the point in answer to which the instruction was given. In asking the court to charge the jury that there could be no recovery by the plaintiff if there was any evidence of collusion in making the sale, the defendant asked too much. He was not entitled to the instruction prayed for, unless the jury were satisfied from the evidence that the sale to his brother was collusive, and the point should have been so framed. There is nothing of substance in the other assignments, and it would be a profitless task to discuss them.

Judgment reversed and a venire facias de novo awarded.