author: Chief Justice Sharswood

text:
    Baumgardner et al. versus Burnham et al.
    1. In an action on a book-account for work and materials in the repair of a locomotive the claim was attacked as excessive. Held, that the true question for the jury was what was the ordinary price for such work and materials charged by other persons in the same business.
    2. In said action the court charged the jury : “ It is not your province to say how much profit ought to be charged by the plaintiffs.” Held, that this was error; that the court should have contented itself with saying: “ You are not to set yourselves up as judges of what locomotive engine builders ought to charge as profits, but simply whether the charges in the plaintiff’s bill are the usual charges in the trade.”
    3. Per Shakswood, O. J. — “ It will always be well for the learned judges of the courts below to see to it that so much of their charges at least are set out as may be necessary to explain the particular points excepted to.”
    January 21st 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1879, No. 102.

      Assumpsit by George Burnham and others, trading as Burn-ham, Parry, Williams & Co., against Henry Baumgardner and William F. Lockhard, trading as Henry Baumgardner & Co., to recover for work done and materials furnished in the repair of a locomotive.
    The declaration contained the common counts only, with a copy of the book-account as a bill of particulars. The following facts, with those set forth in the opinion of this court, sufficiently state the case. Mr. Baumgardner sent to the plaintiffs a locomotive for repair. Previously there had been a correspondence in regard to the repairs, in which plaintiffs had written: “We estimate the cost of the above repairs at from $1000 to $1200.” On the return of the engine it was still found to bo unfit for use, and was sent back to plaintiffs at an estimated cost of $210 for additional repairs. The locomotive was returned with bills for repairs amounting in the aggregate to $2552.79, which the defendants refused to pay, when this suit was brought.
    The plaintiffs admitted that they charged for material at the usual rates, which included a profit to them, and that they added to the labor 100 per cent, for the use of tools, interest, fuel, gas, clerk hire, &c., and twenty-five per cent, more for profit.
    Messrs. Baumgardner asserted that this was too much, and showed by Hugh B. Garrett, master mechanic of the West Philadelphia Railroad shops, that the amount to be added to the actual labor, in doing such work as this, to cover cost of tools and machinery, is but fifteen per cent., and that in doing work for other roa'ds the Pennsylvania Railroad Co. add fifty per cent, to cover cost and profit. “ This bill,” he said, “is a question of profits.”
    In charging the jury, the court, Finletter, J., inter alia, said: “ It is not your province to say how much profit ought to bo charged by the plaintiffs.”
    The verdict was for the plaintiffs for $2900.30, and after judgment thereon, defendants took this writ, and alleged that the court erred in the above portion of the charge.

      John R. Read and Silas W. Pettit, for plaintiffs in error.
    Inasmuch as there was no special contract for repairing the engine, the estimates which were much less in amount than the bills finally presented, are conceded to have been approximations only- — -the claim of the plaintiffs below was simply on a quantum meruit; in such action the question is, what ought the defendants to pay, and what ought the plaintiffs to have : Cole v. Clark, 3 Wis. 323; Stockbridge v. Crooker, 34 Me. 349; Edington v. Pickle, 1 Sneed (Tenn.) 122.
    The defendants contend that they were not bound absolutely by the prices that the plaintiffs might choose to charge them with, hut had a right to question their fairness, their sole contention being that they had been grossly overcharged. Having no means of disputing the accuracy of the various items of work done and materials furnished in making the repairs, they admitted them ; but denied that multiplying the actual cost of the labor employed on the work by two and a half was a fair charge, and averred that the profits so charged upon the work and materials were exorbitant. The defendants bad shown that a reasonable reward to plaintiffs included only fifty per cent, advance on wages paid, and thereby it became the province of the jury to say whether an addition of 150 per cent, was not an unreasonable and unfair charge.

      John G. Johnson, for defendants in error.
    It is to be hoped that the practice adopted in this case, by the defendants, of isolating a sentence of the charge, and of excepting thereto, without giving any of the context, will not be encouraged. Were the whole charge before this court, no assignment of error could be seriously maintained. Can it be, that in every suit for materials furnished and for work done, the defendants, without any evidence contradicting plaintiffs’ proof that the price charged is the market or ordinary one, may be allowed to ask a jury to examine how much profit is included in the latter, and to find a verdict for less than such price, if they think the same, though usual, is too much ? To do so, will be to open the door to inquiries, intricate in length, and expensive beyond endurance. There can certainly be no denial of the fact that the plaintiffs were entitled to the “market” or “ ordinary” price of their work. There was no evidence that they charged more; but positive evidence that they did not. The ordinary or usual price of work includes the usual profit. If the jury had awarded less than such usual profit, this would have denied to the plaintiffs the usual price of. similar work.
   Chief Justice Sharswood

delivered the opinion of the court, February 16th 1880.

It is very probable that if the full charge had appeared on the bill of exceptions, this judgment would not have been reversed. It will always be wise for the learned judges of the courts below to see to it that so much of their charges at least are set out as may be necessary to explain the particular parts excepted to. We have here a single isolated sentence taken from the charge without any thing that went before or came after. It may possibly have been harmless, but as it stands, we think it was calculated to mislead the jury.

The action was on a book account for work and materials in the repair of a locomotive. The claim was attacked as excessive. The true question for the jury was, what was the ordinary price for such work and materials charged by other persons in the same business as that of the plaintiffs. Their book was prima facie evidence not only of the work done and materials furnished, hut of the prices. They gave further evidence, however, of the character of the repairs, to show that there had nothing been done hut what was necessary to put the engine in complete working order. The defendants then introduced' testimony as to the prices charged in other establishments, and proved without objection, the profit they added on the amount paid for labor. Garrett, a master mechanic in the West Philadelphia railroad shops, said : “ In the railroad company where I was employed before going with the Pennsylvania Railroad, the point came up as to what ought to be added to the actual labor to cover the cost of tools and machinery. The president wanted to bring it down to the actual cost on some work done for another road, and we considered that fifteen per cent, added would cover. In the Pennsylvania Railroad, wo add fifty per cent, on work done for other roads to cover cost and profits. This bill is a question of profits, and I cannot speak for others.” The plaintiffs in rebuttal called one of their number, who said: “ There are general expenses which cannot bo assigned to any particular piece of work ; as for instance, tools and the maintenance of tools, stationary-engine, boilers and machinery, gas, clerks, office expenses, interest, &c. The one hundred per cent, added to the actual cost for labor is to cover these general expenses, and we add twenty-five per cent, for profit.” Now, if the learned judge had intended to instruct the jury that it was not their province to determine what ought to be the rate of profit in any particular business, it would not have been error. That is settled at the lowest rate at which the business can be carried on by the effect of free competition in the market. Prices, where there is no monopoly, naturally settle down as near as tnay be to the ordinary profits on invested capital. There are many apparent exceptions, however. Such is the case of an apothecary, who must add to ordinary profits on the materials he uses, a liberal compensation for his own skill, acquired by years of patient study and apprenticeship, as well as the cost of attending lectures, and, moreover, there is to be added a premium for the responsibility he incurs for himself and his employees. Hence, considering the small sum he pays for his materials, and the short time it takes to compound a prescription, to the unthinking, his profits would seem out of all proportion to the rate of ordinary profits in other business. The same thing, though not to the same effect, may be true of loeomotiye engine builders. They must have skilled workmen, scientific superintendents, with a great outlay of capita], and also responsibility for the safety of those who put in operation the works they send out. If the learned judge then had contented himself with saying to the jury : “ You are not to set yourselves up as judges of what locomotive engine builders ought to charge as profits, but simply whether the charges in the plaintiff’s bill are the usual charges in the trade,” there would have been no error, but he went much further where he instructed them : “ It is not jour province to say how much profit ought to be charged by the plaintiffs.” That profits necessarily entered into the price was shown by the evidence on both sides, and how could the jury decide intelligently as to the price without considering what was the usual rate of profits and whether the plaintiff’s charges conformed thereto ?

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Dock versus Boyd & Co.
    1. M. owed to B. a sum of money and D. promised to B. that if he would give time to M. he would see that B. was paid, saying that he had money of M.’s in his hands. B. agreed not to push his claim against M., but did not surrender his claim, and afterwards prosecuted it to judgment. Held, that the promise of D.’ was not within the Statute of Frauds, and he was liable thereon, and further, that he was estopped by his own declarations upon the faith of which his verbal promise to pay the debt was accepted.
    2. It seems, when the promise is to apply the funds or property of the debtor in the hands of the party, it is not necessary that the creditor should give up his recourse against the debtor upon the original claim. The promise is not a collateral, but an original one, founded on sufficient consideration.
    January 12th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 118.
    Case by Yfilliam S. Boyd and Charles S. Boyd, trading as William S. Boyd & Co., against Luther Dock.
    E. G. Miller, doing business as E. G. Miller & Co., owed the plaintiffs $1428.11, partly on book account and partly on a note for $1000 maturing Hovember 29th 1875. The plaintiffs drew on Miller & Co. for $428.11, the excess of their claim over the note, and the draft came back protested, whereupon the plaintiffs wrote to them, threatening legal proceedings. E. G. Miller & Co. sent the plaintiffs’ letter to the defendant Dock, who was .a joint owner with E. G. Miller, one of the firm of Miller & Co., and one Mitchell, of certain lumber lands on Lick Run, on which they carried on the lumber business in partnership. Dock, -with plaintiffs’ letter in his hands, went to their store, and, as they testified, though he in his evidence denied it, said that Miller had sent him the letter; that he, Dock, had come to intercede for them ; that they were “ in tight papers,” and he did not want them pushed ; that he had money or other property of theirs in his hands, and he would sell it and pay the plaintiffs; that he would not give his own note, but his word was as good as his bond; that he would not fix a time for payment, which might be next week, or not for thirty or sixty days; that there was no danger of the property being taken out of his hands by other creditors, for he had it so fixed that that could not be done; that the plaintiffs wore secure, and he would see them paid. Upon this, as the plaintiffs testified, they agreed not to push Miller without notifying Dock, and made a memorandum to that effect on the protested draft. Dock sent Miller $1000 to take up his note for that amount to the plaintiffs, which matured on the 29th of November 1875, and Miller received it, but did not pay plaintiffs’ note, and absconded. Plaintiffs subsequently sued Miller & Co. on their claims and got judgments.
    It also appeared that Miller was largely indebted to Dock, but that Dock had in his hands lumber in which Miller was interested, which was taken from the above-mentioned tract of lumber land.
    The third and fourth points of the defendant were as follows :
    3. “ The jury must upon the evidence find for the defendant, there being no sufficient evidence to show that defendant ever had in his hands property of Miller’s, -which, as between him and said Miller, he was bound to apply to the payment of his debt to the plaintiffs.”
    4. “ If the jury find that, as between the plaintiffs and Miller, the liability of the latter was never given up or abandoned, but still remains existing and unaffected, the agreement of the defendant, as alleged by plaintiffs, was collateral to said liability of Miller, the Statute of Frauds requiring a writing applies, and the jury must find for defendant.”
    In answer to these points, the court said: “ If you believe Boyd & Co., although they did not abandon their claim, had been induced to give time to Mr. Miller through Mr. Dock’s promise, it would be enough.”
    In the general charge, the court, inter alia, said: “ If Mr. Dock agreed to apply the means in his hands to the payment of Miller’s debt, with Miller’s acquiescence, he is bound by that agreement, and it is not necessary it should be in writing.”
    .The verdict was for plaintiffs for $1270.G6, and after, judgment thereon the defendant took this writ, and alleged that the court erred in the answer to the points, and in the foregoing portion of the charge.

      H. A. L. Pyle and Chapman Biddle, for plaintiff in error.
    Such a contract as the one here alleged is void, unless the original claim is given up and the new contract accepted in its stead: Shoemaker v. King, 4 Wright 110; Maule v. Bucknell, 14 Id. 52.
    [Sharswood, C. J. — If Dock had property of Miller’s in his control it was not necessary that the promise should be in writing. If he had not, is he not now estopped from the denial of that fact by having induced them to put faith in his statement ?]

      To make Dock liable on such a promise it was necessary to show first that there was sufficient property of the debtor in his hands; second, that as between him and the debtor, he assumed to pay the debt out of the property; and third, that he had promised the creditor to appropriate the money to his use. Neither of the first two of these essentials was shown. There was not a particle of testimony that this lumber or any property or money of Miller had ever been put in Dock’s hands as trustee to pay Boyd & Co., or with a view to its application to their debt. At the date of his alleged promise, Dock, as one of the partners of the Lick Run lumber firm, happened to have in his hands some of its lumber, with the right as between him and his partners to sell it and keep the money for his own use — that is, to reimburse himself for advances made for his partners. The promise of Dock was without any consideration whatever.

      George Junkin, for defendants in error.
    Forbearance, either limited or general, is a good consideration for a promise to pay the debt of a third person : Silvis v. Ely, 3 W. & S. 420.
    No proof need have been made that Dock actually had money and property of Miller’s in his hands, or that he and Miller had so arranged the matter. Dock’s representation and promise estopped him from denying that such was the case. But the proof in the case went much further. It appeared, and there was no attempt to deny it, that Dock had in his hands a large quantity of property belonging to Miller. It consisted of lumber, the proceeds of lumber and a promissory note.
    Wherever money, or funds, or securities, or other property of a debtor are in the hands of another, and pledged or devoted to the payment of his debts, the party holding the same and promising to pay is bound by the promise, and the case is not one within the statute. This law is distinctly recognised in Maule v. Bucknell, supra; Stoudt v. Hine, 9 Wright 31; Shoemaker v. King, supra.

   The judgment of the Supreme Court was entered, January 26th 1880,

Per Curiam.

That Dock had means in his hands belonging to Miller was in evidence, but if the contrary had appeared he would have been estopped by his own declarations, upon the faith of which his verbal promise to pay the debt was accepted. Such being the case, it was clearly not within the Statute of Frauds. When the promise is to apply the funds or property of the debtor in the hands of the party, it is not necessary that the creditor should give up his recourse against the debtor upon the original claim. The promise is not a collateral but an original one, founded on sufficient consideration.

Judgment affirmed.


author: Mr. .Justice Paxson

text:
    The Union Canal Company versus Gilfillin.
    1. The legislature has the power to require a creditor of an embarrassed corporation or individual to indicate his dissent from measures deemed essential to the common welfare of creditors and debtors, or else suffer the penalty of being held to an assent.
    2. The Act of April 10th 1862, relating to the Union Canal Company, provided a scheme to relieve the company from its financial embarrassments. The act directed the calling of a public meeting of the stockholders and bondholders, whereat said stockholders and bondholders, voting separately, might enter into an agreement to carry out the provisions of the act. The act also contained the further provision that every bondholder who “ shall fail to file with the president of said corporation, his or her refusal in writing, to concur in the said agreement, within three months from the date thereof, such bondholder shall bo taken to have agreed to the same.” The court below held that this provision was unconstitutional, in that it impaired the obligation of the contract between the company and the bondholder. Held, reversing the court below, that the act was constitutional.
    January 22d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of July Term 1879, No. 45.
    Case stated whereiu John G. Gilfillin was plaintiff and the Union Canal Company defendant.
    1. The plaintiff holds a number of coupons, amounting in all to the sum of $4200, running from November 1st 1857, to May 1st 1877, inclusive, for interest upon four certain bonds of the defendant, all dated November 1st 1853, being No. 899 for $500, and Nos. 116, 1290, and 1661, for $1000 each, said bonds being secured by a mortgage dated August 23d 1853.
    2. Upon April 10th 1862, Pamph. L. 395, and April 22d 1863, Pamph. L. 563, respectively, two certain Acts of Assembly, being supplements to the several acts theretofore passed relating to the Union Canal Company of Pennsylvania, were approved.
    Copies of the said acts are annexed hereto as a part of this case stated. [The portions of said acts essential to an understanding of the case will be found in the opinion of this court. — Rep.]
    3. The said Act of April 10th 1862, was accepted by the corporation defendant at a general meeting of its stockholders, called in accordance with law, and held May 26th 1862.
    4. Under and by virtue of the said Act of Assembly, the stockholders of the said corporation defendant, and the holders of the bonds secured by the mortgage of August 23d 1853, at a general meeting duly called and held June 9th 1862, the said stockholders and the said bondholders acting and voting thereat as separate bodies, did, by a majority of the votes of each body, duly taken and counted, enter into an agreement providing for the carrying out of the provisions of the said Act of April 10th 1862, wherein and whereby it was provided, among other things, that all interest on the said bonds theretofore accrued or due, or thereafter falling due or accruing, should be paid out of the net income, revenues or profits of the said corporation, accruing after May 1st 1861, and that there should at no time be any coupons paid or payable otherwise than out of and from the clear net income and profits of the business of the corporation, and that said net income and profits should be received in full consideration for its coupons falling due.
    5. The notice specified in the proviso to the third section of the Act of'April 10th 1862, was duly published, and the plaintiff, who was then the holder of the bonds, the coupons of which are now sued on, had actual knowledge of the said notice and of the matter thereof.
    6. The said plaintiff did not actually take part in the making of the said agreement, nor did he signify his assent in writing thereto, nor did he ever file with the president of the said corporation his refusal in writing to concur therein.
    7. The whole amount of the bonds secured by the said mortgage of August 23d 1853, and outstanding, is $2,500,000. The whole amount of the bonds so secured, held by persons who did file with the president, of the said corporation their refusal in writing to concur in the said agreement, was $85,000.
    8. Since the making of the said agreement, to this time, there has not been any clear net income and profits of the business of the said corporation.
    9. If the court shall be of opinion that the plaintiff is entitled to recover, judgment shall be entered against the defendant for the sum of $4200 ; otherwise for the defendant.
    The court entered judgment for the plaintiff on the case stated, Ludlow, P. J., delivering the following opinion.:
    “ The company defendant, by reason of numerous financial difficnlties, obtained certain legislation, especially the two Acts of Assembly referred to in the case stated and made a part thereof.
    “ The. plaintiff, the holder of numerous coupons, with a knowledge of the legislation, was entirely silent upon the subject of the proposed settlements made or to be made under and by virtue of that legislation ; it is now proposed to destroy his right of recovery upon the evidences of the indebtedness held by him against the company, because he has seen fit simply to remain silent. Or, in the language of a clause in sect. 3, Act of 10th April 1862, as he has failed to ‘ file with the president of such corporation his (or her) refusal, in writing, to concur in said agreement, within three months from the date thereof, such bondholder,’ that is, this plaintiff, ‘shall be taken to have agreed to the same.’
    “ The question to be settled here is not like the ordinary questions which arise whenever a corporation, intending to extend its legitimate business, obtains legislation enlarging its powers, and compelling its members to raise the necessary funds. This legislation endeavors to destroy the right of a creditor, simply because he remains silent. That this cannot be done appears to be certain.

      “ 1. Because the bondholder is a creditor of the corporation, and as a creditor holds a contract with the company for the payment of money, which contract is protected by the laws of this state and the Federal constitution.
    “ 2. While there may be cases in which silence may, by a jury, bo interpreted to mean consent, this is not one of them, for the debtor has no right by legislation to impose terms upon a creditor not within the intent and meaning of the original contract.
    “ Those points seem to us to be so clear as to require little, if any, argument to sustain them. That the claim of the plaintiff is based upon a contract is not denied. To declare that he shall by any legislation lose the fruit of it, is to break the contract, and when an attempt is made in that direction, the creditor simply points to his bond. He may be very foolish to act thus, or he may be very wise ; that is nothing to us ; he simply clings to his bargain, and that he has a legal right to do. Gan a debtor impose terms upon a creditor, or compel him to speak if he chooses to remain silent? Such has not yet been determined to be the law as between private persons, and the most powerful corporation has not yet obtained greater rights.

      “ This contract declared that upon such a sum of money, such an amount of interest shall be paid. This Act of Assembly, after providing how the debts of this corporation shall be consolidated or reduced, at a joint meeting of directors, stockholders and bondholders, provides that any creditor who does no.t dissent within three months ‘ shall be taken to have agreed to the same.’ Between private individuals the proposition involved in .the section of the act now under consideration, would be so absurd as to be unworthy of consideration. I owe A. a debt, and inform my creditor that in one week I w'ill pay fifty per cent, thereof in full payment and satisfaction thereof, and if he does not object he will be taken to have agreed to my proposition. Would my creditor be bound by his silence? We think not. Is the case different because a corporation is the debtor ? In answer to this inquiry, it may be contended that public interests may require another construction of the law. That may be the case, where the questions arise between the directors and the stock and bondholders of a concern, and involve methods of management, and of finance, additional aud extensive corporate powers, and the legitimate exercise thereof. All such questions may be settled by a majority vote, but where the issue is between the corporation and á creditor who desires to be paid his debt, we find no difference between a private debtor and a corporation ; and as by this contract the creditor has a legal right to demand the payment of his money, no legislation can destroy this right, because it cannot compel him to speak.

      “Judgment for plaintiff on case stated.”
    The defendant took this writ, alleging that the court erred in entering judgment for the plaintiff.

      Thomas Hart, Jr., for plaintiff in error.
    It is not pretended, as the court below seems to have assumed was the defendant’s position,.that any debtor, either individual or corporate, can, of his or its own motion, call upon a creditor to do some act, or otherwise be barred of the right of action. The question is, can not the legislature pass a law providing, under certain' circumstances, that creditors, either of a corporation or individual, shall do an act simply to signify their own minds, and provide, protecting all those who do express themselves, that those who remain silent and passive shall be considered as agreeing to the proposed measure ? It is certainly no new idea, and has been a frequently occurring provision in legislation: Acts of February 17th 1847, Pamph. L. 142; April 7th 1852, Pamph. L. 261; April 10th 1852, Pamph. L. 316; April 17th 1861, Pamph. L. 319; April 11th 1862, Pamph. L. 422. In general legislation we also find like provisions: Acts of May 16th 1861, Purd. Dig. 1223, pl. 52; March 24th 1865, Purd. Dig. 1225, pl. 63; March 7th 1861, Pamph. L. 88.
    These acts suggest the principle upon which all legislation of this nature is to be sustained ; that it is, in fact, a statute of limitations, providing a time, short if you please, but necessarily so, within which the dissatisfied stockholder or bondholder must assert Lis rights.
    The act under consideration is a simple act of limitation, giving the bondholder three months within which he must act, if at all. A remedy is provided, by following which, his rights will be preserved, but that remedy must be followed within the time prescribed.
    The seventh section of the Act of April 27th 1855, Pamph. L. 369, which was a statute of limitations as to ground-rents, and which provided for its going into effect within three years from the passage of the act, has been held to be retrospective and constitutional : Korn v. Browne, 14 P. F. Smith 55.
    The case of the Philadelphia, Wilmington & Baltimore Railroad Co. v. Cowell, 4 Casey 329, is a significant one upon the subject of a party’s silence, and its effect in the way of ratification. See also Martin v. Pensacola & Georgia Railroad, 8 Fla. 370; North Carolina Railroad Co. v. Leach, 4 Jones 340 ; Ireland v. Palestine, &c., Turnpike Co., 19 Ohio 369 ; Terry v. Anderson, 5 Otto 628. See also the following cases as to the constitutionality of the stay laws: Chadwick v. Moore, 8 W. & S. 49; Breitenbach v. Bush, 8 Wright 313; Coxe v. Martin, Id. 322.

      J. Duval Rodney, for defendant in error.
    The several Acts of Assembly referred to by plaintiff in error, have never been the subject of judicial scrutiny as in this case, and it will not be contended that a mere multiplicity of defective enactments will make any one of them legal.
    As to the cases cited, they are one and all in support of a principle which is not denied, viz.: that stockholders may be affected by their fellows, with or without the aid of a legislature, but to the case of the defendant in error, who is a bondholder, they can have no application.
   Mr. .Justice Paxson

delivered the opinion of the court, March 1st 1880.

We find nothing in the Act of April 10th 1862 relating to the Union Canal Company that is objectionable upon constitutional grounds. The object of the act was to provide a scheme to relieve the company from its financial difficulties. It had issued bonds to the amount of $2,500,000, which were secured by a first mortgage. The coupons upon these bonds had been unpaid for years. The scheme contemplated the surrender of the over-due coupons by the bondholders, and the funding of them by the company in a new issue of bonds to the extent of $500,000, to be secured by the same mortgage. The last scries of bonds were to be used in settling the liabilities of the company. This would make the whole amount of bonds $3,000,000, the coupons upon all of which were to be paid out of the net income, revenues and profits of the company, after May 1st 1861, and not otherwise. In other words, if the company earned no profits, the bondholders were to receive no interest. The act further provided for the calling of a public meeting of the stockholders and bondholders, whereat said stockholders and bondholders, voting separately, might enter into an agreement providing for carrying out the provisions of the act. But here the legislature appears to have taken especial care not to abridge or impair the rights of dissenting bondholders. Those who refused to enter into the agreement were not to be bound thereby. Up to this point there certainly was nothing to impair the obligation of the contract between the company and its bond holders. But the act contained the further provision that every bondholder who “ shall fail to file with the president of said corporation, his or her refusal in writing to concur in the said agreement, within three months from the date thereof, such bondholder shall be taken to have agreed to the same.” The learned court below held this provision to bo unconstitutional in this, .that it impaired the obligation of the contract between the company and the bondholder.

It may be conceded that a debtor, whether a natural or an artificial person, cannot say to his creditor: Unless you signify your dissent from a certain proposal by a given time, I will hold you to a consent; and act accordingly. The question here is, may the legislature, as the representatives of the people, in the exercise of the sovereign will, require a creditor of an embarrassed corporation, to express his will within a reasonable time, in regard to measures believed to be essential to the interests of both creditors and stockholders. The power of the legislature is supreme, except where restrained by the fundamental law. No presumption arises that a law is unconstitutional; on the contrary, every presumption is in favor of the constitutionality of an Act of Assembly.

As bearing upon this question it is proper to say, that we have upon our statute books a large amount of legislation in which the principle embodied in the Act of 1862 is distinctly recognised. It is not new, and I am not aware that its constitutionality has ever before been doubted. The Act of February 17th 1847, Pamph. L. 142, entitled “An act for the relief.of the creditors of the Philadelphia, Germantown and Norristown Railroad Company,” contains a provision substantially similar to the one in question. So does the Act of April 7th 1852, Pamph. L. 261, passed for the protection of the creditors of the Schuylkill Navigation Company. The same principle will be found in the Acts of April 10th 1852, Pamph. L. 316 and April 17th 1861, Pamph. L. 319, relating to the Susquehanna Canal Company, and the Act of April 11th 1862, Pamph. L. 422, for the relief of the Chester Valley Railroad Company. The question now under consideration does not appear to have been raised under either of the above-mentioned acts, and their existence cannot therefore be accepted as conclusive évidence of their constitutionality. They come to us, however, with the approval of two of the co-ordinate departments of the government, and the fact that they have been acted upon in the adjustment of large and important interests for so many years is not without weight in the consideration of a question of this kind.

It is not difficult to find in' the general legislation of the state' much that bears a close analogy to this section of the Act of 1862. Thus the Act of 16th May 1861 (Purd. Dig. 1223), authorizing the merger of one railroad company by another, provides that the remedy thereby given to dissatisfied stockholders shall be pursued within thirty days after the execution of the agreement for consolidation. The Act of 24th March 1865 (Purd. Dig. 1225), authorizing the consolidation of railroad companies, contains a like provision. It is true these acts affect the stockholders who may lie presumed to have bought their stock subject to the general legislative power of control over the affairs of corporations. In like manner a creditor must be presumed to have bought his bond subject to such power so far as it exists, and to the general right of the legislature to change or modify his remedy to a reasonable extent, and so that it shall not deny his right..

All of the foregoing legislation comes within the recognised power of the General Assembly to pass statutes of limitation and stay laws. The constitutionality of such laws has been so often decided that it would be an affectation of learning to cite the authorities. The one question that arises in all such cases is the reasonableness of the limitation. The third section of the Act of 1862, is an act of limitation. It takes away no man’s right, and violates no man’s contract. The creditor may dissent, and is not thereafter affected by the proceedings. All that is required of him is to express his will in a particular way within three months. No one can or does pretend that the time given is unreasonable. May then the creditor be required to signify his dissent upon pain of being held to an assent in case of neglect to do so ? The argument that the law cannot compel a creditor to do any act in order to preserve his claim is unsound. He may be compelled to act. The Statute of Limitations is a case in point. It compels the creditor to sue within the statutory period or lose his claim. A man must so exercise his rights in a community of law as not to needlessly embarrass or injure the rights of others. All this Act of Assembly does is to require the creditor to say whether he will accept or refuse the agreement. The rights and interests of other parties require that he shall do this. There are many instances in the laws relating to insolvents, where a creditor is bound by the act of the majority, or of a given number of creditors not less than a majority. Of this nature is the seven years’ exemption from execution on consent of a majority in number and value of the insolvent’s creditors, contained in the Act of 1886. The Bankrupt Act contains provisions which recognise the same principle. All this leads to the conclusion that there is power in the law to require a creditor of an embarrassed corporation or individual to indicate his dissent from measures deemed essential to the common welfare of creditors and debtors, or else suffer the very mild penalty of being held to an assent. And this violates no right of the creditor guaranteed to him by the fundamental law.

The judgment is reversed, and judgment is now entered for the defendant below upon the case stated.

Justices Merger and Gordon dissented.


author: Mr. Justice Mercur

text:
    McCauley’s Appeal. Hardy’s Estate.
    H. and his wife each purchased a policy of life insurance in favor of the other and payable to his or her respective executors, administrators or assigns. II. died first, whereby the policy on his life became payable to the wife. She afterwards died and the money secured by the policy on her life was paid to the executors of her deceased husband. H. by his will devised and bequeathed to his wife “ all my estate both real and personal, of whatsoever kind and wheresoever the same may be at the time of my decease, for and during the time of her natural life, with full power and authority to appropriate to her own use such of the personal property as to her shall seem meet.” He further provided, “ after the death of my said wife, I give, devise and bequeath all the rest, residue or remainder of my estate, both real and personal, to my son John, his heirs and assigns for ever,” and in the case of the death of John before the death of his wife, without leaving issue, then to testator’s daughter Esther. John died before the wife. On a distribution of the funds in the hands of the executors of II., the executors of the wife claimed the amount of the policy secured on her life for the benefit of the legatees of the wife, alleging that they were entitled thereto under the provisions of II.’s will. The court below held that the wife had only a life estate, and no power of appointment to dispose of the proceeds of the policy of insurance, and rejected the claim. Held, that this was not error.
    January 23d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1878, No. 100.
    Appeal of.James McCauley and William Hein, executors of Jane Hardy, deceased, from the decree óf the court confirming the adjudication in the matter of the settlement of the estate of William Hardy, deceased.
    The following adjudication of O’Brien, J., sufficiently states the facts of the case :—
    “It appeared that the decedent, William Hardy, died October 6th 1874, leaving a will, by which his wife, Jane Hardy, was appointed his executrix. Jane Hardy died June 27th 1875, and upon July 8th 1875, letters of administration de bonis non cum testamento annexo were granted unto the accountant, William Corbin.
    “ The will of William Hardy provided, inter alia, as follows :—
    “ ‘Item : I give, devise and bequeath unto my beloved wife,-Jane, all my estate, both real and personal, of whatsoever kind and wheresoever the same may be at the time of my decease, for and during the term of her natural life, with full power and authority to appropriate to her own usé such of the personal property as to her shall seem meet; also giving and granting unto my said wife full power and authority to sell or in any manner dispose of any and all my real estate, for the purpose of purchasing other real estate, or otherwise investing the proceeds arising from such sale or sales, with absolute power to my said wife, to execute and deliver such deeds or instruments in writing, for the purpose of conveying and assuring an absolute estate, in fee simple, for all such real estate, without any liability on the part of the purchasers thereof to see to the application of the purchase-money.
    “ ‘ Item : After the death of my said wife, I. give, devise and bequeath all the rest, residue or remainder of my estate, both real and personal, unto my son, John Hardy, his heirs and assigns, for ever.’
    “ By a codicil to said will, it was provided as follows
    “ ‘ Item: In case my son, John Hardy, the residuary devisee named in my said will, should depart this life before the time of coining to his estate — that is, before the death of my wife within-named, without lawful issue him surviving, then and in such case I give, devise and bequeath unto my daughter, Esther Canning, the use, benefit and income of and from my residuary estate (as within devised, to my son John), for and during the term of her natural life, and at her death to her children absolutely, share and share alike.’ John Hardy died before the widow of decedent, and left no lawful issue him surviving, whereupon Esther Canning became the residuary devisee. A claim was presented on behalf of the executors of Jane Hardy to the proceeds of a certain life insurance policy for $2500. It appeared that both William and Jane Hardy had insured their lives in favor of each other. The present policy in question was payable at the death of Jane Hardy, to William Hardy, her husband, his executors, administrators or assigns. The proceeds were never in the possession of Jane, as they were not payable until after her death, and by the terms of William Hardy’s will, she had only a life interest in his estate, with full power to appropriate to her own use such of the personal property as to her should seem meet. This did not give her the power to bequeath the policy, or any power of appointment over the fund.
    “In her will, Jane Hardy made the following bequest:
    “ I give and bequeath unto my friends Jane Stewart and Sarah Ann Stewart, the policy of insurance on my life for twenty-five hundred dollars which I hold in the New Jersey Mutual Life Insurance Company, and all moneys that may bo realized therefrom, share and share alike, for their sole use and benefit absolutely.’
    “ The Court of Common Pleas, No. 2, upon proceedings by bill' in equity, decreed that the insurance company should pay the proceeds of the policy to the administrator de bonis non cum testamento annexo of William Hardy, deceased. As Jane Hardy had only a life estate and clearly no power of appointment to dispose of the proceeds of the policy of insurance, the claim is rejected, and Mrs. Esther Canning being the residuary devisee under the will of William Hardy, deceased, the balance in the hands of the accountant, viz. : $2257.06, less the court clerk’s costs, is awarded to her, subject to the provisions of the said will of William Hardy, deceased.”
    Exceptions were filed to this adjudication by the executors of Jane Hardy, which the court in bane dismissed, Hanna, P. J., in an opinion, inter alia, saying: “ The single question presented is, to whom did the principal of the policy upon the life of the widow belong at the time of her death — whether to her or to the executor of her deceased husband ? In view of the law, as settled in Deginther’s Appeal, 2 Norris 837, we are of opinion, that the moment the widow died the policy became a part of her deceased husband’s estate, and to be disposed of according to the provisions of his will. By this, while he bequeathed his entire estate to his wife, yet it was only for life, with power to appropriate to her own use such portion a3 to her shall seem meet. This language standing alone would have given the wife the whole estate absolutely, but that was not the intention of the testator, as is evident from the subsequent clauses of the will. By these he bequeaths the residue of his estate to his son, and then by a codicil, in the event of his death without issue, to his only daughter. Testator, while he contemplated the probable necessity for the use of his entire estate by the widow for her maintenance, yet never intended she should have the power to dispose, by will, of any portion not used or appropriated by her. The residue remaining at her death he disposed of as his property. The policy of insurance was a part of the residue of his estate, and, as the same was not payable until after the death of the widow, and could not possibly be appropriated by her, the residuary legatee was consequently entitled to the proceeds.”
    Erom this decree confirming the adjudication this appeal was taken.

      C. H. Howell, H. Budd, Jr., R. Ingram and J. W. Coulston, for appellants.
    ;The appellants claim the proceeds of the policy, because that policy, during the lifetime of the testator, was part of his personal property, and upon his death, passed to his widow, under the terms of his will. Deginther’s Appeal, 2 Norris 337, establishes the existence of a vested interest in the holder of a policy of life insurance, and although the proceeds were never in the possession of the widow, because the amount was payable only upon her death, yet, as the legatee of her husband, she became the owner of the policy, and her representatives are entitled to the proceeds of the same.
    How could the widow “ appropriate” the property to her own use except in. the manner she did ? It is submitted the words of the husband’s will cannot be restricted to mean that the widow’s power was simply to consume the property in her lifetime. In more than, one authoritative case, words no stronger than these have been held to possess an absolute interest: Bull v. Kingston, 1 Meriv. 814; Sprange v. Bernard, 2 Brown Ch. 585; Barford v. Street, 16 Ves. Jr. 135; Church v. Disbrow, 2 P. F. Smith 219.

      John H. Campbell, for appellee.
    There can be no doubt under the decision in Deginther’s Appeal, supra, that the policy upon the life of the wife, payable at her death to her husband, his executors, administrators or assigns, belongs to the husband’s estate and goes to his executors, even if he dies before the wife. The fact that the insurance was upon the life of the wife, instead of upon a third person, makes no difference, as observed in that decision.
    The proceeds of the policy became part of the husband’s estate immediately upon the wife’s death and followed the disposition of his estate made by his will. The cases cited by appellants do not warrant the strained meaning of the word “ appropriated” for which they contend. The ordinary rules for the construction of wills govern the case. Technical rules of construction are not to be applied to defeat the plain intention of the testator: Still v. Spear, 9 Wright 168.
   Mr. Justice Mercur

delivered the opinion of the court May 2d 1880.

William Hardy and Jane Hardy, his wife, each procured a policy of life insurance in favor of the other, and payable to his and her respective executors, administrators or assigns. He died first, whereby the policy on his life became payable to her. She after-wards died, and the money secured by the policy on her life was paid to the executors of her deceased husband. By her last will she devised this policy to Jane Stewart and Sarah Ann Stewart. On a distribution of the funds in the hands of the executor of William Hardy, the appellants claimed the amount paid on this policy for the benefit of the legatees of Jane Hardy. They claimed it under a clause in the will of William Hardy, which reads thus: “ I give, devise and bequeath unto my beloved wife, Jane, all my estate, both real and personal, of whatsoever kind, and wheresoever the same may be at the time of my decease, for and during the term of her natural life, with full power and authority to appropriate to her own use such of the personal property as to her shall seem meet.” In a subsequent clause, he declares, “ after the death of my said wife, I give, devise and bequeath all the rest, residue or remainder of my estate, both real and personal, unto my son, John Hardy, his heirs and assigns for ever.” By codicil, he provides, in case of the death of John, before the death of testator’s wife, Jane, without leaving lawful issue surviving, then devise over to testator’s daughter, Esther.

We may concede under the authority of Deginther’s Appeal, 2 Norris 337, that when Jane died the amount of insurance on her life became a part of the estate of her deceased husband, and was to be disposed of according to his will. We are not, however, able to discover any authority for her to dispose of it by her will, or that will give it to her executors. Under the will of her husband she took during life only, with the additional power to appropriate to her own use such of the personal property as she might choose, and the residue and remainder were devised over. The property was not given to her absolutely, nor was she authorized to dispose of it by will. The evident intent was that she should have no more of the eorjms of the personal estate than she should elect to appropriate to her own use. That election and appropriation must necessarily have been made during her life to be for “her own use.” In so far as she did not thus appropriate it, it passed, on her death, to the other devisee named.

We think it would be a forced inference to assume that by authorizing her to appropriate personal property to her own use, that the testator intended to include money which could not be obtained until after her death. He manifestly referred to such personal property as she could at any time reduce to her actual possession, and use, sell or convert the same so as to appropriate it, or the proceeds thereof, to her use and enjoyment. If, however, during her life, she had actually made any sale or transfer of the policy, thereby indicating an intention to appropriate it to her own use, a more difficult question would arise. But she did no such thing. It remained unchanged and unappropriated, and precisely in the same condition in which it had passed under the will of her late husband. The attempted devise which could have no effect until after her death, was not such an appropriation for her use as was contemplated by her husband’s will. The learned judge was entirely correct in holding that the residuary legatee under the will of John Hardy, was entitled to the proceeds of the policy.

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


text:
    The Peoples’ Bank’s Appeal.
    1. Where the endorser of a note does not disclose the fact that the maker of the note was a minor, his silence cannot be regarded as equivalent to a direct affirmation that the maker was of full age, and is not such a fraud upon one discounting the note as will entitle him to relief in a court of equity.
    2. S. took a note made by his son, a minor, and having endorsed it himself, had it discounted by a bank and the proceeds placed to his own credit. When he obtained the discount he did not disclose the fact that the maker was a minor. He subsequently made deposits in the hank and drew chocks, hut. at no time did his balance fall below the amount of the proceeds of said note. Upon the death of S. his executors drew out all the moneys to his credit in the hank and filed an account in the Orphans’ Court, which included said moneys. The estate of S. proved to be insolvent. The minor when he attained his majority, in writing to the bank, ratified the note. In the distribution of the estate of S. the hank claimed the amount of the note with interest. As an action was pending in the Court of Common Pleas the auditor concluded to suspend proceedings until that action was decided. 'The hank then filed a bill in equity against the administrators of S., and the depositary of the fund to secure the same. Held, that there was no such breach of trust and confidence as is required by a court of equity to enable it to act. Held, further, that the funds of the estate of the endorser being under the jurisdiction of the Orphans’ Court, that tribunal was abundantly able to give complainants every remedy to which they were entitled. Held, further, that the evidence disclosed such a mixture of funds as to bring it within the rule ‘‘ that the right of pursuing a fund fails when the means of ascertainment fail.”
    January 28th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1880, No. 37. In Equity.
    Bill in equity filed by tlie Peoples’ Bank of Philadelphia against Nathan Spering individually, and Nathan Spering and Eleanor Spering, administrators of the estate of Joshua Spering, deceased, and the Fidelity Insurance, Trust and Safe Deposit Company.
    The bill, in substance, set forth that Joshua Spering, prior to. the first day of September 1873, kept an account as a depositor with complainants, and on said day presented for discount a promissory note for $600, signed by his son, Albert Spering, dated Sepr,ember 1st 1873, and payable four months after date, to the order of the said Joshua Spering, and by him endorsed. The said note was discounted by complainants, and the amount thereof, less the discount, to wit, the sum of $587.40, placed to the credit of the said Joshua Spering in his account with the complainants, and said sum continued to stand and be to his credit in his account with complainants up to the time of his death, which occurred on or about December 8th 1873. That at the time said note was presented for discount, the said Albert Spering, the maker thereof, the son of Joshua Spering. aforesaid, was a minor, which fact was well known to the said Joshua Spering, and concealed by hirn from complainants: that after the death of the said Joshua Spering, to wit, on December 8th 1873, Nathan Spering and Eleanor Spering were appointed his administrators, and the account of the said Joshua Spering with the complainants was duly settled. Upon such settlement, there appeared to be due by the complainants to the said Joshua Spering, up to th.e time of his death in said account, the sum of $1080, and afterwards, on December 12th 1873, Nathan Spering, one of the administrators aforesaid, drew a check on the complainants aforesaid, and was paid the said sum of money by the complainants, who were up to and after the time of such payment, ignorant of the fact of the minority of the said Albert Spering, the maker of the note aforesaid, and the said Nathan Spering well knowing at the time he drew and was paid the said money on the said check, that a part of the same, to wit, the sum of $587.40, resulted from and was the proceeds of the discount of the note before mentioned, and that the said Albert Spering was at the time he signed said note, and then still continued a minor; that the said Nathan Spering and Eleanor Spering deposited said sum of $1080 in The-Fidelity Insurance, Trust and Safe Deposit Company, in one sum, at interest at the rate of four per cent, per annum, and said sum still remains standing to their credit as depositors in said company; that .afterwards, said Nathan Spering and Eleanor Spering filed their account as administrators, and included therein the whole of said sum of $1080 before mentioned, and said account was referred by the Orphans’ Court for the county of Philadelphia to an auditor for distribution. Tour complainants appeared before said auditor and claimed out of the fund of $1080, so on deposit, the sum of $587.40 with the interest thereon, at the rate of four per cent, pel annum, from December 12th 1873, as being the specific property and money of the complainants. That objection was made to such allowance, and application was made to the auditor to set apart or reserve a sufficient fund to meet said claim, and to refer your claimants to another and appropriate tribunal for the adjustment of their rights, and thereupon, an order was made to that effect. ,
    The bill further set forth that the estate of Joshua Spering was insolvent. The prayers were for a discovery, and “ that it be decreed that the Fidelity Insurance and Safe Deposit Company aforesaid, pay over to the Peoples’ Bank aforesaid, the said sum of $587.40, with interest thereon at the rate of four per cent, per annum from December 12th 1873.”
    In their answer the administrators admitted the discounting of the note, but averred that at the time the said sum of $587 was placed to the credit of the said Joshua Spering, in his account with the plaintiffs, he had other moneys of his own there, with which the said sum of $587.40 was mingled and confused; and deposits of money in his said account subsequently were made, and checks drawn by the said Joshua Spering upon his said account, and that at no timo was his credit-balance less than said sum of §587. They admitted the minority of Albert Spering, but refused to admit that they had concealed the fact, or that it was unknown to complainants when the note was discounted ; or that at the time said balance of $1080 was drawn from the bank that the said Albert Spering was a minor. It was also admitted that complainants had paid said $1080 to Nathan Spering, and that said sum was deposited with the Fidelity Company. They admitted, likewise, the insolvency of the estate of Joshua Spering; but averred that Albert Spering, the maker of the note, having since attained his majority had. by a writing signed by him and delivered to complainants, ratified and confirmed said note, and agreed that he would be responsible therefor. They denied that an order had been made by the auditor as stated in the bill, but averred that “ it appeared at the audit that said plaintiffs had then a suit pending in Court of Common Pleas, No. 2, of this county, against the defendant, Nathan Spering, in his own right, to recover back the same sum of money, which suit was then at issue and waiting to be tried by a jury. And thereupon the auditor, with the consent of all the parties before him, decided to suspend further proceedings in the audit until the verdict of a jury could be had upon the issue so ponding in the Court of Common Pleas. It is not true that any such order was made as stated in the bill, and we are advised that no more appropriate tribunal for the determination of the matters contained in the bill, exists under the laws of this Commonwealth, than the Orphans’ Court of this county, who now have jurisdiction of the moneys claimed in said bill as is shown therein.”
    It appeared that at the trial in Court of Common Pleas, No. 2, the complainants were non-suited.
    The case was heard on bill and answer, and the court, Ludlow, P. J., delivered the following opinion :
    “We are of the opinion, that the relief prayed for in this bill cannot be granted. In every case of this description, in order to invoke the aid of a court of equity, there must exist some relation of trust and confidence between the partios. The fraud consists in the breach of a trust or confidence partly reposed, and in most, if not all of the cases, the silence of the party must impart as much as a direct affirmation, and must be deemed equivalent to it:. Ins. Co. v. Mabbet, 1 Wis. 667; 1 Story Eq. 214.
    “ The facts as developed in this suit, simply present a cause in which a note drawn by a minor and endorsed by his father, was presented for discount, and was discounted. It does not appear that any representations were made as to the age of the drawer. And, without evidence, it is as fair to presume that the bank discounted the paper, upon the faith of the solvency of the endorser; and after due inquiry as to the drawer, as to believe that in a business transaction like this, the officers of the bank were over-reached and defrauded.
    “It is as well, also, to remember, that the contract made by the minor was not void, but only voidable; and while it could not bind the minor without his consent, yet the drawer did, by a writing signed by him after he attained his majority, ‘ratify and confirm Said promissory note, and agree that he would be bound thereby and be responsible therefor.’
    “ It is impossible to see in this case any such breach of trust or confidence, as is required by a court of equity to enable it to act; and when the fact is that the maker of the note is a minor, silence-alone is not equivalent to a direct affirmation, especially as it is possible that a voidable contract may be made with one not, of age.
    “ Other difficulties stand in the way of the plaintiffs. The funds of the estate of the endorser are now under the jurisdiction of the Orphans’ Court of this county. That tribunal is abundantly able to give to the plaintiffs every remedy to which they may be entitled, while upon the evidence before us, there seems to have been such a mixture of funds, as to bring the case fairly within the decision of the Supreme Court in Thompson’s Appeal, 10 Harris 17, wherein Lewis, J., declares ‘ The right of pursuing it (the fund) fails, when the means of ascertainment fail.’ This is always the case when the subject-matter is turned into money, and mixed and confounded in a general mass of property of the same description, and we may add the remark of the learned judge in that case : This mixture has taken place in the case under consideration. Bill dismissed with costs.”
    From this decree this appeal was taken.

      Hood Gilpin and Charles Gilpin, for appellant.
    A person who has been deprived of his property, through fraud or artifice, may follow the fund so taken from him and recover it from the guilty person, the self-constituted trustee: Aycinena v. Peries, 6 W. & S. 243; Lestapies v. Ingraham, 5 Barr 71; Artman v. Walton, 34 Leg. Int. 13; United States v. State Bank, 6 Otto 36; Atlantic Bank v. Merchants’ Bank, 10 Gray 532; Skinner v. Merchants’ Bank, 4 Allen 290; Farmers’ & Mechanics’ Bank v. King, 28 P. F. Smith 202; Chambers v. Bank, Id. 205 ; Tradesmen’s Bank v. Third National Bank, 16 Id. 435; Corn Exchange Bank v Bank of the Republic, 28 Id. 233; Roth v. Crissy, 6 Casey 145.
    The Court of Common Pleas has jurisdiction even pending the settlement of the decedent’s estate in the Orphans’ Court: Aycinena v. Peries, supra; Swain v. Ettling, 8 Casey 486 ; Grigg’ Estate, 32 Leg. Int. 68 : Kimble v. Carothers, 33 Id. 280. The fund which we sought to follow was sufficiently earmarked : Farmers’ & Mechanics’ Bank v. King, supra; Goepp’s Appeal, 3 Harris 428.
    The appellant is therefore entitled to recover for two reasons: Because the rescission of the contract, entered into by the fraudulent concealment of the decedent, avoids it, and leaves the property in the money in the appellant; and, because the facts constitute the decedent a trustee for the appellant.

      E. Coppee Mitchell, for the appellees.
    The jurisdiction of the Orphans’ Court had already attached upon the fund claimed, before the bill was filed. Where the settlement of an estate has reached this point, the jurisdiction of said court is complete and exclusive: Dundas’s Estate, 23 P. F. Smith 474 ; Hammett’s Appeal, 2 Norris 392.
    The admixture of the money paid by the bank with other money of Joshua Spering precludes its identification, and it cannot be reclaimed: Perry on Trusts, sect. 128; Thompson’s Appeal, 10 Harris 16. There was no fiduciary relation whatever between Joshua Spering and the bank. No trust results to the owner of money, where a stranger appropriates it and invests it in other property: Hawthorne v. Brown, 3 Sneed 462; Ensley v. Ballentine, 4 Humph. 233 ; Campbell v. Drake, 4 Iredell Eq. 94 ; Pascoag Bank v. Hunt. 3 Edw. 583.
   The judgment of the Supreme Court was entered February 24th 1880,

Per Curiam.

We affirm this decree upon the opinion of the learned president of the court below.

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


author: Mr. Justice Paxson

text:
    Watson et al. versus City of Philadelphia, to use of Adams.
    _1. Where in a contract for paving there has been a substantial compliance with the requirements of the ordinance under which the contract was done, asyo the width of the pavement, and the city has accepted the work as satisfactory, the owners have no cause for complaint, and cannot resist the recovery of the assessments to pay for the work, on the ground that there were slight inequalities in the width of the pavement.
    2. The Act of March 11th 1846 makes such claims prima facie evidence of all matters^ contained therein ; and where the claim contains an averment that the requisite notice was given, it is prima facie evidence of notice.
    February 2d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.

      Error to the Court of Common Pleas, No. 4, of Philadelphia, county: Of January Term 1877, No. 77.
    Scire facias by the city of Philadelphia to the use of Francis S. Adams against George N. Watson and B. S. Hunt, executors of John H. Jones, deceased, and William H. Kern, owners, on a municipal claim on the front of defendants’ corner property on Market street, Philadelphia. The defendants pleaded no lien, nil debet, payment with leave, set-off, &c.
    The lien filed set forth merely the names of plaintiff and defendant; description of the property, number of square yards of paving and the price. An amendment was afterwards filed, alleging that due notice had been given to the owners to pave, their neglect so to do, and that the work, had been done in accordance with the Acts of Assembly and ordinances. At the trial of the case the plaintiff’s counsel read in evidence the ordinance of May 1872 (Ordinances of 1872, pp. 201-2), authorizing the cart-way of Markoe street to be paved ; the ordinance of May Sd 1855, sect. 3 (Ordinances of 1855, pp. 141 — 2), prescribing that where the cartway of a street has been ordered to be paved it shall be lawful for the chief commissioner of highways to notify the owners of property to pave the sidewalk, and if within twenty days that is not done the city can then proceed to pave, and further prescribing that in streets over forty feet wide, and in front of unimproved property, the sidewalk should be paved at least eight feet wide. The plaintiff then closed, and the defendants moved for a nonsuit on the ground that plaintiff had proven neither the notice to pave nor the fact that the pavement was eight feet wide. The court refused the motion. Defendants then showed that neither of them had ever received the notice to pave this lot; that the pavement was not eight feet wide, averaging but seven feet four inches The plaintiff, in rebuttal, called a clerk in the highway depart ment, who testified that the book in which were the certificates of notice to pave had been lost; that he had made diligent search for it but could not find it.
    Plaintiff then offered to prove that the said book contained a certificate that notice had been served on the owners of the property, and that said certificate in said book was signed with the name of P. C. McGinley, who was, at the date of the certificate, the supervisor, but was then deceased. Defendants objected, but the court overruled the objection.
    The defendants submitted, inter alia, the following points, both of which the court refused :
    “ 3. If the jury believe that the street was over forty feet in width, and that the sidewalk was not paved at least eight feet wide, there can be no recovery, and the verdict must be for the defendants.”

      “ 5. There has been no proof that notice was given to the owners of the property, and the verdict must be for defendants.”
    In the general charge, the court, Thayer, P. J., inter alia, said:

      “ If there was no notice served upon the owner or owners of the property, and they could be found by the supervisor, Mr. McGiriley, then the plaintiff cannot recover. * * * In answer to the defendant’s third point, I can only repeat what I have said in my charge, that there must be a substantial compliance with the ordinance as to width of pavement or the plaintiff cannot recover. They must comply with the requirements of the law. If they should put down a pavement only three or four feet wide, of course that would plainly not be a compliance. If there has been an immaterial variance, and the city has accepted the work, the plaintiff can recover. There were, according to the evidence, some small variations. In some places the pavement seems to have been a little more than eight feet wide, and at some points a little loss— a few inches. The city solicitor, an officer of the city, has passed judgment upon this, and by joining in filing the lien has accepted the work. If there has been an immaterial variation, and the work has been accepted by the city, the plaintiff can recover. I refuse to affirm defendants’ last (5th) point.”
    The verdict was for plaintiff, and after judgment thereon, defendants took this writ, and alleged that the court erred in refusing to enter a nonsuit and in the answer to defendants’ points.

      E. M. Hunt, for plaintiffs in error.
    The court was asked to charge that the plaintiff could not recover unless the jury found as a fact that the pavement was “at least eight feet in width the very words of the ordinance: Kensington v. Keith, 2 Barr 218; Potter’s Dwarris on Statutes 223, n. 29. The court charged that if there was a “ substantial compliance” with the ordinance, this was sufficient, instead of affirming the point unqualifiedly. Of all proceedings in which every step must be sure and exact, every link complete, that of taxing private property for public improvements requires this the most imperatively. The only “ substantial compliance” was the compliance required by law — “ at least eight feet in width.” Seven feet does not meet the requirement in principle any more than one foot. There is no discretion or variation allowed. It is not deemed necessary to refer to all the decisions of this court, holding that all the conditions must be fully complied with before the lien can attach. The position is admirably stated in Wilson v. Allegheny City, 29 P. F. Smith 278 ; Reed v. Erie, Id. 353.

      Henry C. Terry, for defendant in error.
    There is a long line of decisions against the contention of plaintiffs in error. The claim is evidence of the facts stated in it — that is, of the notice to plaintiffs to pave the footway within twenty days, their failure to do so, of the authority of the equitable plaintiffs below to do the work, &c.: Act of 1846, sect. 4, Pamph. L. 115 ; Thomas v. Northern Liberties, 1 Harris 117; Wistar v. Phliadelphia. 3 Grant 311; City v. Burgin, 14 Wright 545; Act of April 19th 1843, Pamph. L. 29; Brinton v. Perry, 1 Phila. R. 436; City v. Lea, 9 Id. 106, affirmed in S. C.; City v. Brooke, 8 Leg. Gaz., p. 81; s. c. 31 P. F. Smith 23: City v. Collom, 1 W. N. C. 525; City v. Gratz Land Co., 2 Wright 359; Hammett v. Philadelphia, 15 P. F. Smith 146, cited as to requisites of claims.
    The conflict of the testimony as to width doubtless arose from the fact of the lot being angular. Where the lines run in so many courses as in the present case, it is impossible that all measurements of the pavement should show an exact width of eight feet. All that was intended by the ordinance, the court gave the jury to understand, was that the city was compelled to furnish a pavement substantially of the width of eight feet, and the jury have so found.
   Mr. Justice Paxson

delivered the opinion of the court, March 1st 1880.

This was a scire facias upon a city claim for paving a sidewalk. There was no allegation that the work was not well done; on the contrary, one of the defendants testified that it was done properly, and that he wanted to pay for it. Payment, however, was resisted on behalf of one of the joint-owners upon two grounds : 1. That the pavement was not laid of the full width required by the ordinance, and 2. That there was no proof the owners had been previously notified to pave by the city authorities.

It was not disputed that under the ordinances of councils this sidewalk should have been paved to the width of eight feet. The evidence as to the width of the pavement varied somewhat. Mr. Hancock, the surveyor and regulator of the district, testified as follows: “ This was a very good job ; both edges of the pavement had brick on edge. I measured north line of pavement; it is more on curb. On the upper end it measured eight feet two inches, making necessary allowance; it is undoubtedly an eight-feet pavement there. The lower end now averages seven feet eight inches, and the other end eight feet two inches. If curb be added, it is eight feet seven inches.” Under this and other evidence of a similar character, though differing slightly as to width, the learned court submitted to the jury the question whether there had been a substantial compliance with the ordinance, saying, in answer to the defendants’ third point: “I can only repeat what I have said in my charge, that there must be a substantial compliance with the ordinance as to the width of the pavement, or the plaintiff cannot recover. If there has been an immaterial variance, and the city has accepted the work, the plaintiff can recover.” We see no error in this instruction. It was for the jury to say whether the plaintiff had complied with the ordinance, and under all the circumstances that question was fairly submitted to them. This lot appears to have been angular in shape, and it is quite possible some of the slight inequalities in the width of the pavement may have been due to this fact. There was evidently an intention to conform to the ordinance in good faith, and the jury have found a substantial compliance. It was the duty of the owners to have paved the sidewalk. It was their neglect of this duty that compelled the city authorities to procure it to be done by contract. The plaintiff having contracted with the city to do the work, the city having accepted the work as satisfactory, and the jury having found there was a substantial compliance with the ordinance, the defendants have no cause of complaint. It is not alleged they are charged with more pavement than was laid.

The question of notice is unimportant. The claim contains an averment that the requisite notice to pave was given. The Act of Assembly makes such claims prima facie evidence of all matters contained therein. See Act of 11th March 1846, Pamph. L. 114, and Thomas v. Northern Liberties, 1 Harris 117 ; City v. Burgin, 14 Wright 539; Philadelphia, to use, v. Brooke, 31 P. F. Smith 23. The defendant’s evidence upon this point did not overcome the plaintiff’s prima facie case. The executors could not know whether notice had been served upon their testator. The other defendant does not appear to be contesting. At any rate, he said that as to him the notice would probably have been served upon his agent, Mr. Maügle. The latter testified that he had never to his knowledge received notice to pave this lot, but acknowledged that a notice, of the character of which he was unable to speak, had been left some time before the work was done. There was nothing in the evidence of the defendants to call for anything in rebuttal on the part of the plaintiff. This renders it unnecessary to consider the third assignment of error. The admission of the evidence therein referred to, even if erroneous, as to which no opinion is exDressed. did the defendants no harm.

Judgment affirmed.


text:
    In re Samuel Davies.
    1. The power of a court to admit as an attorney to its bar a person possessing the requisite qualifications, and to remove him therefrom when found unworthy, has always been recognised and cannot be questioned. The power of removal for just cause is as necessary as that of admission for a due administration of law.
    2. By admitting an attorney to the bar, the court presents him to the public as worthy of its confidence in all his professional duties and relations-, and if afterwards it comes to the’knowledge of the court that he has become unworthy it is its duty to withdraw that endorsement, and thereby cease to hold him out to the public as worthy of professional employment.
    3. A client made an affidavit before a magistrate charging an attorney with the embezzlement of a bond, and he was arrested and required to give bail for his appearance at court. The client' also made the same charge under oath before the Board of Censors of the Law Association. Subsequently a settlement was made between the client and the attorney, by which the latter paid the former the value of the bond, and the client consented to the entering of a nolle prosequi in the criminal prosecution and a release of all claims. It was contended that this settlement operated as an absolution and remission of the offence. Held, that it did not; that the exercise of the power of the court was not for the purpose of enforcing civil remedies ífetween parties, but to protect the court and the public against an attorney guilty of unworthy practices in his profession.
    February 2d 1880.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1880, No. 61.
    In the court below this was a rule to show cause why Samuel Davies, a member of the bar, should not be stricken from the list of attorneys. The facts as disclosed by the testimony and exhibits and as stated by the court below were as follows:
    Some time in the month of March 1878, the respondent obtained a bond from the Guarantee Trust Company for Cornelia Curtiss, who had employed him professionally for that purpose. It should have been delivered to her forthwith, but instead of performing his duty in this regard Davies pledged the bond to one Humphreys as a security for money lent, and when Mrs. Curtiss and her son-in-law, John N. Spencer, called for the bond, they were put off with evasive promises. Davies did not state what he had done with that instrument, but said on each occasion that it should be forthcoming at the next. A correspondence ensued with Spencer, in the course of which Davies made various promises that were not kept, and he then gave Mrs. Curtiss a written assurance on the 1st of April that if he did not return the bond “ on or before Saturday,” he would pay her what it was worth. This note was followed on the 6th of the same month, by another, in which he promised to call on Monday or Tuesday evening “without fail,” and bring the bond. This promise having been broken like the rest, Mrs. Curtiss made an affidavit before Magistrate List, on the 18th of April, in which she charged Davies with the embezzlement of the bond, and a warrant was issued for his arrest, which took place on the 11th of May, when he was held to bail to appear at the ensuing term of the Court of Quarter Sessions. Mrs. Curtiss had in the meantime made a similar charge under oath before the Board of Censors of the Law Association, and Mr. E. Spencer Miller at their instance obtained a rule on Davies to show cause why his name should not be stricken from the list of attorneys. Before this rule was taken, but after the application to the Board of Censors and his arrest, Davies called on Mrs. Curtiss and induced her to agree to settle the case and discontinue proceedings against him in consideration of the payment of $100, and she subsequently, at his request, made oath to a statement that she was entirely satisfied with the settlement; that the rule was obtained without her knowledge, and that she would willingly have lent the bond to him if he had asked for it.
    Witnesses having been examined on either side before a Commissioner, the cause was argued before Hare, P. J., and Mitchell and Fell, JJ., on behalf of the Board of Censors and for the respondent, and the court made the rule absolute. Hare, P. J., after stating the facts above set forth, delivered the following opinion:
    “ Two grounds were principally relied on for the defence, one that the public had no further concern in a matter which had been settled between the attorney and client; the other, that Mrs. Curtiss had authorized the respondent to pledge the bond. If the latter point were established by the evidence, it would be a sufficient answer to the rule; but it is, unfortunately, at variance with all the testimony in the cause except that given by Davies in his own behalf. Mrs. Curtiss, indeed, says, that when Davies asked her consent to a settlement, she told him that she would have lent him the bond if he had requested it, but this was said reproachfully, and implied that he had not obtained her leave. Still we might have given the respondent the benefit of the doubt, were it not inconceivable that he should have listened to the reproaches that were heaped on him for th.e detention of the instrument, without mentioning a point so vital to his defence, and that he should have made no allusion to it in his correspondence with John N. Spencer and Mrs. Curtiss, or at the hearing before Magistrate List. Nothing could have been easier or more conclusive than to have said that Mrs. Curtiss had lent him the bond, that he had used it in the only way in which it could be made available, and that she must wait until he could find means to satisfy his creditor and redeem the pledge. Such an answer might not have been altogether satisfactory as between attorney and client, but it would have been a refutation of the criminal charge which was hanging over him.
    “ The remaining inquiry, did the settlement with Mrs. Curtiss purge the offence? admits of but one reply. When the property of a client is misappropriated, and she is compelled to set the civil and criminal law in motion as a means of redress, a wound is inflicted on the reputation of the bar that can only be healed by the removal of the guilty party from an office which he has shown himself unworthy to fill. The practice of the law requires that confidence should be reposed by the client and sacredly accepted as a trust by the attorney; and the observance of this obligation is so essential to the dignity and usefulness of the profession, that a judge should not hesitate to enforce the duty, or to visit a breach of it with the appropriate penalty. The rule was not taken by Mrs. Curtiss, but on behalf of a body whose task it is to vindicate the honor and maintain the purity of the bar, and we are not at liberty to withhold the judgment which they demand. We arrived at this conclusion with much regret, some weeks since, and a careful reconsideration of the evidence has satisfied us that no other sentence can be pronounced consistently with the requirements of the law, and the protection due to the community at large. The rule is made absolute, and the prothonotary is directed to transmit a copy of it, and of the judgment of the court, to the other Courts of Common Pleas, to the Orphans’ Court, and to the Court of Quarter Sessions. Rule absolute.”
    The respondent then took this writ, alleging that the court erred in making the rule absolute.

      William H. Ruddiman and F. Carroll Brewster, for plaintiff in error.
    There was no case, and there existed no professional relations or duty on the part of the plaintiff in error, in Court of Common Pleas, No. 2, which gave that tribunal occasion or authority for the exercise of this power. The case and the relations and duty were in Common Pleas, No. 4. That was the proper forum where the amount due was demandable and the misconduct regularly punishable. The action of Common Pleas, No. 2, was clearly coram non judice. By article 5, sect. 6, of the constitution it is provided that in the county of Philadelphia all jurisdiction and power shall be vested in four distinct and separate courts, and “the said courts in Philadelphia shall be designated respectively as the Court of Common Pleas number- one, number two, number three, and number four * * * and the several courts shall distribute and apportion the business among'them in such manner as shall be provided by rules of court, and each court to which any suit shall be thus assigned shall have exclusive jurisdiction of all proceedings at law and in equity, commenced therein, subject to change of venue as may be provided by law.” Courts of Common Pleas, Nos. 2 and 4, are thus made distinct and separate, and any suit in one, in all its processes, conditions, liabilities, and results, is within the exclusive jurisdiction of that one. If answerable anywhere, Davies was answerable in Common Pleas, No. 4. His praecipe was lodged there, his appearance recorded there, his duties were consequent upon them there, and that was the forum for any order or rule upon him concerning the business in that court. “Exclusive jurisdiction” was in “ number four,” and there it must have inception and completion. In thus attaching to itself jurisdiction in the premises, and proceeding independently by rule and adjudication, the court below violated the requirements of the constitution, and their judgment is void, and of no effect. The plaintiff in error has not had his day in court — a court distinct and exclusive.
    Neither Mr. Spencer nor Mrs. Curtiss were parties asking for the rule on Davies. There is, therefore, no complaining or responsible party in court or upon record moving for such action. On the 28th of May 1878, Davies paid Mrs. Curtiss ¡§100, which she acknowledged was in full satisfaction of her claim. After such acknowledgment there was no basis for a proceeding, and it was too late for the grave and summary process of a rule. The evidence was that Davies had permission to use the bond. The case must be flagrant and the facts clear of doubt to call for action so severe as to strike respondent’s name from the list of attorneys. It is submitted that in the absence of positive evidence of any dishonest intent, or of persistence in wrong-doing, the court is not justified in resorting to a measure so extreme as to deprive the respondent of the valuable right which pertains to his office of attorney.

      R. L. Ashhurst and Samuel Dickson, for Censors of Law Association.
    The contention that this matter was under the sole cognisance of Court of Common Pleas, No. 4, and that no other court could take cognisance of the matter is completely answered by the undisputed facts. This bond was not obtained by Mr. Davies in any legal proceeding whatever. There was never any legal proceeding from anything that appears relating to it. It was deposited with the Guarantee Company by Mrs. Curtiss as security for rent of premises occupied by her son-in-law, Spencer. This was a transaction in fiáis, and no part of a court proceeding. The plaintiff in error, who had been her attorney in other matters, Mrs. Curtiss employed to get the bond back. This he accomplished by negotiation. No rule could be taken in the case in No. 4. In that case Davies had not been guilty of any misconduct. The Censors were right in taking it as an independent new proceeding in the first court they could. Had it not been for the delay in endeavoring to give Mr. Davies a hearing before proceeding against him, the case would have gone to No. 1, in the ordinary course. Even if this was not so, can it be argued that the courts are bound to shut their eye's to misconduct by their attorneys unless committed in their courts in pending eases ? Mrs. Curtiss distinctly authorized the commencement of the proceedings, and never recalled or revoked her authority prior to the granting of the rule. But apart from any authority from her, the courts have ample power on their own motion to purge the list of attorneys of improper persons, and can act whenever the matter is brought to their attention in a proper manner. And can it be questioned that the Board of Censors of the Law Association is competent as the representatives of the general body of the bar, to bring such matters to the attention of the court, and ask their action ?
    The rule was not to compel Davies to pay over money but to disbar him for misconduct as an attorney-at-law. The only defence having the appearance of merit is the allegation that Davies had received the permission of Mrs. Curtiss to use the bond. Unfortunately this is not made out by the evidence, and, as shown by the learned judge below in bis opinion, it is contradicted by the whole weight and tenor of that evidence ; in fact it rests upon the unsupported assertions of Mr. Davies himself in his testimony. It is inconceivable that one who had been permitted to have the use of the bond would have written a series of communications filled with pitiful evasions and excuses for its non-return. And still more amazing that he would have quietly submitted to arrest and allowed the case to be returned to a criminal court for trial when he had a ready defence.
   Mr. Justice Mercur

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

An attorney-at-law sustains an important relation in the administration of justice. He possesses certain powers and privileges from which others are excluded, and assumes important duties and obligations towards both court and client. He is an officer of the former, and a representative of the latter. Ilis position is so responsible, his opportunities for good and for evil are so many that both statute and common law have united in throwing all reasonable safeguards around his conduct. Before he can be admitted to the bar, the Act of Assembly requires him to take an oath or affirmation, inter alia, that he will behave himself in the office of attorney within the court, according to the best of his learning and ability, “and with all good fidelity as well to the court as to the client.” The court also requires satisfactory evidence of proper knowledge of the law, and of the good moral character of the applicant.

The power of a court to admit as an attorney to its bar, a person possessing the requisite qualifications, and to remove him therefrom when found unworthy, has been recognised for ages and cannot nqw be questioned. In fact the power of removal for just cause is as necessary as that of admission for a due administration of law. By admitting him the court presents him to the public as worthy of its confidence in all his professional duties and relations. If afterwards it comes to the knowledge of the court that he has become unworthy it is its duty to withdraw that endorsement, and thereby cease to hold him out to the public as worthy of professional employment. The Act of 11th April 1834, recognises this right and. duty as existing in the court. The 74th section thereof declares “ if any such attorney shall retain money belonging to his client, after demand made by the client for payment thereof, it shall be the duty of the court to cause the name of such attorney to be stricken from the record of the attorneys, and to prevent him from prosecuting longer in the said court.” The specific cause named in this act, which makes the action of the court mandatory, has often been held to be such misconduct as to justify a court in suspending an attorney from practice or in striking his name from the rolls: People v. Smith, 3 Caines 221; Same v. Wilson, 6 Johns. 368; Bohanan v. Peterson, 9 Wend. 503 ; Hyman v. Washington, 2 McCord 498 ; Ex parte Ferguson, 6 Cow. 596. None should be permitted to act who are guilty of unworthy practices or behavior in their profession: Leigh’s case, 1 Munford 481. Such character renders him unfit and unsafe to be intrusted with the powers of his profession : John Percy, 36 N. Y. 651. The offence need not be such as to subject the attorney to indictment. If it shows such a lack of professional honesty as to make him unworthy of public confidence it is sufficient cause for striking his name from the roll: Baker v. Commonwealth, 10 Bush 592. This is a power inherent in every court when a person is shown to be unfit to practice in it: The People v. Turner, 1 Cal. 143; Mills, 1 Mich. Rep. 394; Bradley v. Fisher, 13 Wall. 335; Ex parte Robinson, 19 Id. 505; Austin et al., 5 Rawle 191; Dickens’s Case, 17 P. F. Smith 169. Such an order is a judicial act to bo done in the exercise of judicial discretion. It must, therefore, bo governed by a sound judicial discretion guarding and protecting the just rights and independence of the bar, the dignity and authority of the court, and the safety and protection of the public: Ex parte Secombe, 19 Howard 9. A member of the bar has a property in his profession: O’Hara v. Stack, 9 Norris 477. He cannot be deprived of his right therein without due notice of the complaint, and an opportunity to be heard. In the present case there was a full hearing. The evidence clearly established and the court found that the plaintiff in error was professionally employed by Mrs. Curtiss to procure for her a bond of $100 from the Guarantee Trust Company; that he obtained it, and instead of delivering it to her, he pledged it to one Humphreys as security for money borrowed of the latter. The bond was frequently demanded of the plaintiff in error; but he put off Mrs. Curtiss with evasive promises to deliver it, followed by a promise to pay its value at a day specified if he failed to return it. Having disregarded all his promises, Mrs. Curtiss at length made an affidavit before a magistrate charging Davies with the embezzlement of the bond. He was arrested, and after a hearing required to give bail for his appearance at the next Court of Quarter Sessions. After this, and after application to the Board of Censors of the Law Association, a settlement was made between Mrs. Curtiss and Davies by which he paid her $100 as the value of the bond, and she consented to the entry of a nolle prosequi in the criminal prosecution and a release of all claims. It is contended on the part of the plaintiff in error that this settlement operated as an absolution and remission of his offence. This view of the case ignores the fact that the exercise of the power is not for the purpose of enforcing civil remedies between parties, but to protect the court and the public against an attorney guilty of unworthy practices in his profession. He had acted in clear disregard of his duty as an attorney at the bar, and without “good fidelity” to his client. The public had rights which Mrs. Curtiss could not thus settle or destroy. The unworthy act had been fully consummated. In the exercise of its sound discretion, the court held the misconduct was such as to require that his "name be stricken from the roll. This action, however, is not always understood to be a perpetual disability. In some instances the court have permitted an attorney to be restored considering the punishment in the light of a suspension: 1 Tidd’s Prac. 89, and cases there cited.

We see no merit in the first assignment. This bond was procured without the aid of process issuing out of any one of the courts.

The position of a member of the bar is one of great responsibility. Good faith and integrity in his professional employments are essentially necessary. It is the duty of a court to see the proper standing is preserved. Whenever its right to strike a member from its roll appears to be impartially considered, and prudently exercised as here, we are not willing to reverse its conclusion.

Judgment affirmed.