author: Mr. Justice Gordon

text:
    Hoopes versus Beale.
    1. It is well settled, except in the case of negotiable paper, that parol evidence is admissible to contradict, vary or even avoid a written instrument, where it is proved that but for the oral stipulation it would not have been executed.
    2. Where the evidence of what occurred at the execution of the instrument is clear and precise, there is no limitation to the power to modify, explain or reform written agreements by parol evidence.
    3. A. executed a bond and mortgage to B., who assigned it to C. The latter died, and in a suit brought by B. to the use of C.’s administrators: Held, that parol evidence was admissible to prove that the bond and mortgage were executed with the understanding that, there would be no personal liability. Held, farther., that the suit being in reality by an administrator, A. was incompetent as a witness.
    March 28th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Chester county: Of January Term 1877, No. 96.
    Debt by William B. Hoopes to the use of Samuel H. Hoopes and others, administrators of Abraham Baily, deceased, against Horace A. Beale and others, members of Williamson Lodge, No. 309, A. T. M.
    The narr. contained four counts. The first was on a bond made on behalf and by the authority of defendants, by which they acknowledge themselves to be bound to plaintiffs in the sum of $20,000. The .other three were the common counts. The defendants pleaded non est factum, nil debit, payment with leave, &c.
    At the trial it appeared that this bond was given by Wells and other trustees of the lodge to William B. Hoopes for $10,000, secured by a mortgage on the real estate of the lodge, which mortgage was assigned to Abraham Baily. It also appeared that there was a prior mortgage of $4000 on the said premises, under which the real estate had been sold; that an auditor had been appointed .to distribute the fund arising from the sale; that in said distribution the $4000 was paid in full, and a portion of the $10,000. 'This suit was brought to recover the balance. The defendants ioffered to prove by Wells and other defendants, “that Mr. Hoopes Shad the money and proposed to lend it to the trustees on behalf of the lodge, and that at the time the trustees had some hesitancy .about putting their- names to the bond and mortgage and said they would not do it if there was to be any liability on any person; that the security was to be solely the real estate to be covered by the mortgage; that Mr. Hoopes said distinctly that he did not ask any personal security ; that all he asked was the real estate; that he was told more than once on the occasion by the trustees that they would not take the money if they were to be held liable for it, and that the transaction was then completed; this being on the same day the papers were executed and after the papers were prepared; that the money was received and the papers delivered in pursuance of the promise of Mr. Hoopes.”
    The plaintiffs objected both to the admissibility of the evidence proposed to be given, and to the competency of Wells and the other defendants to testify as to the matter proposed. The court, Butler, P. J., overruled the objections, and'permitted the witnesses to testify.
    The verdict was for defendants. The plaintiffs, inter alia, assigned for error the admission of the foregoing evidence.

      Charles PC. Pennypaeher, Wayne MacVeagh and Joseph J. Lewis, for plaintiffs in error.
    The witnesses were the obligors in a bond, the assignee of which is dead, and his administrators are the equitable and real plaintiffs. They were clearly incompetent under the Act of 1869. The suit is indeed in the name of Hoopes, but for the use of the administrators of Baily, who was, in his lifetime, assignor and sole owner of the bond. The administrators might, indeed, have sued in their own names. But the form of the action can make no difference, as to the evidence, which may be admissible for either party. There can be no advantage gained or lost by suing in the name of the assignor, for the use of the assignee, or in the name of the assignee, as the legal plaintiff. Parol evidence was not admissible to contradict the terms of the bond.

      John J. Pinkerton, R. PI. Monaghan and P. PVazer Smith, for defendants .in error.
    The evidence was admissible: Lippincott v. •Whitman, 2 Norris 244; Greenawalt v. Kohne, 4 Id. 369. The witnesses were competent under the Act of Í869; Pattison v. Armstrong, 24 P. F. Smith 476. Executors and administrators are not the plaintiffs here. Hoopes is the plaintiff technically; he stands so on the record; he is so spoken of in the declaration as the party with whom the contract was made. The plaintiff could not have declared in any other way than that the contract was made with him; there is no averment of any interest whatever in the use parties.
    May 7th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

That parol evidence may be admitted to contradict, vary or even avoid a written instrument, where it is proved that, but for the oral stipulations, it would not have been executed, is a doctrine now so well settled that its discussion would be a mere waste of time.. It is understood that this rule does not apply to negotiable paper, when in the hands of innocent holders for value, but other than this, we know of no exception.

Admitting the competency of the evidence, and there is no doubt but that W ells, Mullin and Doan, the trustees of the lodge, signed the bond in suit, with the express understanding that they were not to be personally liable, and it is manifest, that under no other condition would they have executed it.

This brings the transaction directly within the ruling of Irwin v. Shoemaker, 8 W. & S. 75, wherein it was held, that where a mortgage and bonds were given to secure the purchase-money of land sold, it was competent, in an action on one of the bonds, for the vendee to prove that it was part of the contract that the vendor was to look alone to the property sold for payment of the said purchase-money. It is indeed true, as was said by Mr. Justice BogerS, in that case, in order to set aside the solemn agreement of the parties and convert it into an obligation of a different import, the evidence of the fraud or mistake ought to be of what occurred at the execution of the instrument and should be clear and precise, but when these conditions are fulfilled there is no limitation to the power to modify, alter, explain, or reform written agreements, by parol evidence, excepting only negotiable paper, as above stated.

It is urged, however, that, in the case in hand, there is no evidence of fraud in the original transaction. It may be that William B. Hoopes intended no fraud when the bond in suit was executed; but having obtained the obligation for one purpose, his attempt afterwards to use it for another, was such a fraud as brings the case within the rule above stated: Renshaw v. Gans, 7 Barr 117.

A more serious question arises from the admission of the defendants, Wells, Mullen and Doan, as witnesses. The action is by administrators, and, hence, as to it, the Act of April 15th 1869, does not apply. As was said, by our brother Mbrcur, in Taylor v. Kelly, 30 P. F. Smith 95, “The same imperative ‘shall not apply,’ extends as well to a case in which an executor is a party, as to the prohibition of husband and wife testifying against each other, and counsel to the privileged communication of his client. The language is neither doubtful nor obscure. Its clear and mandatory edict takes all these cases out of the statute.” It follows, that cases falling within the proviso, stand just as though the Act of 1869 had never been passed, and we need scarcely say, that, before the passage of that act, the evidence of these defendants would not have been admissible.

It is true the assignor of the bond, William B. Hoopes, is alive and was admitted to testify on part of the plaintiffs, but this bond was assigned to Baily in his lifetime, and at his death was part and parcel of his estate, and as such is now sought to be collected by his administrators. The assignment was made in due form, under the Act of 28th of May 1815, and so became as absolutely the property of Baily as though it had been originally drawn to him. The administrators might have brought suit in their own names; the use of Hoopes’s name as legal plaintiff is surplusage. This, however, is of minor importance, because the determining facts of the ease are, that the suit is by the administrators and for the estate, and it alone must reap the benefit or suffer the loss resulting therefrom. It follows, that none of the parties to the bond were competent witnesses.

The judgment is reversed and a new venire is ordered.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Tinicum Fishing Co. versus Carter.
    1. Where, under the authority conferred by an Act of Assembly, a bank and stone wall ax-e ex-ected to pi-event an ovex-flow of water from a l'iver, damages cannot he recovered for an injury to a fishery occasioned thereby.
    2. Such damages are merely consequential, and the constitutional provision, that compensation shall be made to the owner of property taken for public use, does not apply to such damages.
    3. In a suit for damages for injury to a fishex-y, to px-event a recovery, it is not necessary to show that the fishery was entirely destroyed, but it is sufficient if it be shown that it was worthless.
    March 28th 1879.
    Before Sharswood, C. J., Mercur, Gornod, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Delaware county: Of January Term 1876, No. 133.
    This was an action commenced July 26th 1867, by P. B. Carter against the Tinicum Fishing Company, to recover damages for an alleged interference and injury to a fishing right on the river Delaware, of which the plaintiff claimed to own twelve-fourteenths. This was the fourth time this case was before the Supreme Court, having heretofore been reversed three times, reports of which will be found in 11 P. F. Smith 23 and 32, and 27 Id. 310.
    At the last trial, the plaintiff' claimed that the fishing right consisted in the right to draw nets from Hart’s wharf to Darby creek, a distance of about a mile, between high and low-water marks, with the privilege to drag out the nets on the shore. A small portion of this mile is embraced within the boundaries of defendant’s property. The plaintiff rested his title to the twelve-fourteenths upon user, and claimed that Joseph Carter had in 1830 acquired such title as he could devise, and that under him the plaintiff claims. The plaintiff’s claim was for damages, which he- alleged he was entitled to by reason of the erection of a pier and a stone wall and bank, which interfered with the drawing of the fishing nets.
    The defendant offered to show that the bank and wall complained of, are part of a system of banks and walls erected by the Darby Meadow Company, incorporated by the Act of April 3d 1851, Pamph. L. 340, incorporating the Kingsessing and Tinicum Company, the main provisions of which were extended to the Darby Meadow Company, by the Act of March 2d 1854, Pamph. L. 139. The 11th section of the Act of 1851 is as follows:
    “ Sec. 11. It shall and may be lawful for the said managers, their officers and agents, from time to time, as they shall judge necessary, to enter upon all and every part of the lands within the boundaries of the said Kingsessing and Tinicum Meadow District, and to inspect, build, make, alter, enlarge, repair, rebuild, support and maintain all dams, banks, cross-banks, walls, sluices, flood-gates, footings, and other works and things necessary for the drainage, embankment and protection of the said tract, without regard to any allotments, divisions or districts heretofore made, it being the true intent and meaning of this act that all the dams, banks, walls and sluices, flood-gates, footing-drains and footings, or spaces so called, between the footing-drains and the banks, and other devices for the complete draining and embanking of the said tract of land (the divisions and internal ditches only excepted), shall be made and repaired by and under the superintendence of the managers aforesaid ; and it shall and may be lawful for the said managers, their officers and agents, to enter on any lands in the said tract, and to take and carry away any stone, earth, gravel or other materials, which shall be required for the construction or repair of any of the works aforesaid, the value of which stone, earth, gravel or other material shall be paid to the owner of the lands, and shall be assessed in the manner hereafter provided.”
    The offer was, under objection, Rejected. (First assignment of error.)
    The defendant then offered to prove that the bank and wall had been kept, maintained and repaired by the Meadow company, during a period of time beginning more than six years prior to the commencemént of the suit, and continuing up to the .time of the trial.
    This was also rejected. (Second to seventh assignments.)
    The defendant also offered to show that the fishery was utterly worthless. Rejected. (Eighth assignment.)
    The defendant submitted the following points, to which are appended the answers of the court:
    3. The defendant has a right to erect and maintain the wall mentioned in this case, and is not responsible for the damages alleged to have been done thereby to the fishing rights alleged to belong to the plaintiff.
    Ans. “ This point is negatived unless the jury shall find that the erection of the wall at this precise place was absolutely necessary for the protection of the fast land from encroachments from the river, and that the old bank, when in proper repair, was not sufficient for that purpose.” (Ninth assignment.)
    6. If the jury believe that the erection of the pier, and the necessary effect thereof, destroyed the fishery, their verdict must be for the defendant.
    Ans. “ This is affirmed, but the fact of the erection of the piers having rendered the fishery less profitable is not enough. It must be an absolute obliteration of all privileges owned by the plaintiff. Under all the evidence, I do not think the plaintiff’s right has been absolutely obliterated by the piers. If you shall find that, at any time, this fishery could be used with profit, then this point is not sustained.” (Eleventh assignment.)
    7. If the jury believe that the fishery has been destroyed by the operation of natural causes, their verdict should be for the defendant.
    Ans. “This is affirmed; but the destruction should be full and complete — not partial.” (Twelfth assignment.)
    I.n the general charge, the court, Clayton, P. J., inter alia, said:
    “If you find, from the testimony, that this wall and bank interfere with the privileges to which Mr. Carter is entitled — the privilege of drawing the seine from the river to the fast ground, and maintaining the necessary appliances and appurtenances to his fishery; in a word, if you find that this wall interferes with his right, as it had been previously enjoyed, then you may find for the plaintiff, provided, you shall find the other questions submitted to you in his favor; but if you shall find from the testimony that this fishery has been so completely obliterated by natural causes that it is for all time destroyed, then, of course, there can be no recovery — not destroyed for a season, not rendered less valuable, but completely obliterated and swept out of existence; but if it is only injured and rendered less valuable than it was in 1853, they are not sufficient to warrant you in finding for the defendant. If you find that the erection of that wharf has completely destroyed the fishery, then you should find for the defendant, or if you shall find that natural causes have so destroyed it, then, of course, you will find for the defendant. You must recollect that the shore is liable to changes. The same causes which wash mud in, may wash it out again, and thus the fishery become valuable again. But, as I stated before, the evidence is for you.” (Sixteenth assignment.)
    The verdict was for plaintiff for $420. The defendant took this writ, among his assignments of error being those noted above.

      William Ward and Wayne Mao Veagh, for plaintiff in error. — ■
    Every fishery in the navigable waters of the state exists subservient to the will of the state: Tinicum Fishing Co. v. Carter, 11 P. F. Smith 29. Where an owner has acquired title to flats or lands in a state of nature, lying between high and low-water lines, his title to such land is clearly qualified, being subject to the public use and the right to improve the banks for useful public purposes: City to use v. Scott, 2 W. N. C. 52; Rutherford’s Case, 22 P. F. Smith 82. Various causes have combined to make the fishery worthless. The defendant should have been permitted to show these causes, and that the fishery was abandoned. It was error to apply a standard for the measure of damages such as that set up by the court, to say that the true questions were future possibilities, rather than present realities.

      Aaron Thompson and P. B. Garter, for defendant in error.
    May 7th 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

This case has been so thoroughly discussed in 11 P. F. Smith 21, and 27 Id. 310, that little more remains to be said. While the main point now raised was not ■ expressly decided by either of the former cases, the principles by which it must be disposed of were clearly pointed out. It was held in Tinicum Fishing Co. v. Carter, 11 P. F. Smith 21, that the plaintiff below was not entitled to recover damages for the injury to his fishery resulting-from the construction of a pier out into the river under a license from the port wardens of the city. “As the state,” says Justice Sharswood, “might itself have erected or caused to be erected the wharf and pier built by the defendants below, without any responsibility to the plaintiff for any consequential damages to his easement, or right of drawing his seine on the shore, so neither is the grantee or licensee of the 'state liable for such damage. As to him it isdamnum, absque injuria.” This ruling is equally applicable to the erection and maintenance of the stone wall, which is the chief ground of the plaintiff’s complaint. The Darby Meadow Company has the right under its charter to protect the meadows by the erection of walls to keep back the water, and if in doing so, the plaintiff’s rights of fishery are interfered with or even destroyed, he is without remedy. His damages, if any, are merely consequential, and the constitutional provision that compensation shall be made to the owner of property taken for public use, does not apply to such damages: Monongahela Navigation Co. v. Coons, 6 W. &. S. 101. The meadow company having the right under its charter to construct the wall, it fallows that if said wall had been- constructed under the authority of, or license from the company, as a part of its system, the defendants would have a right to avail -themselves of such authority or license as a defence to this action. Further, if the meadow company neither built, nor authorized its construction, yet if after the wall had been erected, they adopted and maintained it, and had continued to maintain it for more than six years prior to the commencement- of this suit, it would be a complete answer to any claim for damages growing out of its construction.

It was certainly error to exclude from the jury evidence to show that in 1868 the fishery was utterly worthless. This error was cured to some extent subsequently by the admission of testimony of a similar character, and is referred to now to avoid misapprehension in the future.

The court below was called upon by the defendants’ sixth and seventh points to say that if either by the erection of the pier, or from natural causes, the plaintiff’s fishery had been destroyed, the verdict must be for the defendants. The learned judge affirmed these points, with the qualification, that the plaintiff’s right must be absolutely obliterated; and that the destruction of the fishery must “be full and complete — not partial.” Herein we think the learned judge fell into error. There was no question of the obliteration of plaintiff’s right. That might continue long after its exercise had become impracticable or unprofitable. Nor was it a question of the absolute destruction of the fishery. It was certainly sufficient for the defendant to show that- it was- worthless. The plaintiff was suing for damages, and the destruction of a worthless thing could have done him no injury. If the fishery could no longer be fished to profit or advantage, it was worthless. The fact that a few stray shad could be caught there occasionally amounts to nothing.

The first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, eleventh, twelfth and sixteenth assignments of error are sustained.

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


author: Mr. Justice Trunkey

text:
    Reese versus Reese.
    1. It is within the power of a court to make a rule, to allow an instrument to be admitted in evidence without proof of its execution, unless the opposite party give notice that he requires such proof to be produced.
    •2. Although parts of a charge when taken separately may seem to be erroneous and indicate a leaning to one side or the other, there is yet no error, if taken as a whole, the questions at issue are fairly left to the jury.
    3. Where an expert acquires his knowledge of the handwriting of a person by simply observing him write several times, and this for the purpose of testifying, he is not competent to give an opinion as to the genuineness of that person’s signature.
    4. Where it is alleged and denied that the body and signature of an instrument are in the same handwriting, an expert may be asked whether, in his opinion, the two parts were written by the same person.
    March 28th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Chester county: Of January Term 1878, No. 302.
    Debt by Margaret Reese against her son John Reese, on a note under seal for $993, drawn by defendant in favor of plaintiff.

      The case was brought into the court below on an appeal from an award of arbitrators, who had awarded the plaintiff the sum of $1997.04. The defendant filed an affidavit of defence in which he averred that the note was never executed by him. He also pleaded non est factum and set-off.
    At the trial, the defendant objected to the admission of the note in evidence, because no proof whatever had been offered of its execution by the defendant, whose plea of non, est factum required such proof to be presented before said note can be read or received in evidence. The court overruled the objection on the ground that the defendant had not given notice of his intention to impeach the execution of the note, in accordance with the following rule of court: “In all cases where the plaintiff’s cause of action or the defendant’s set-off, is founded in whole, or in part, on any bond, note or other instrument in writing, and stated specially in the pleadings, on notice given, fifteen days before the first day of the term, at which the cause is set down for trial, the same may. be given in evidence without proof of its execution, unless the opposite party shall, at least eight days before the first day of said term, give notice to the party offering such instrument, that he requires such proof to be produced.”
    The defendant testified that he had never made the note in suit; had never seen it, and never owed the money for which it was alleged to have been given. Several other witnesses testified that the plaintiff had stated in their presence that the defendant did not owe her anything.
    The defendant proposed to ask E. H. Rauch, an expert, “ In your judgment did the same hand execute the signature that executed the note?” The question was objected to, and the court sustained the objection.
    The same, witness who had examined the handwriting of the defendant shown to him before the trial,'with a view, as the witness supposed, of preparing for the trial, and who had never therefore seen the handwriting of the defendant, was asked whether in his opinion the signature to the note was in defendant’s handwriting. Objected to, and objection sustained.
    The plaintiff offered several witnesses in rebuttal, who testified they had seen the defendant sign the note. All of the note, except the signature, was admitted to be in a different handwriting from the signature.
    In the general charge, the court, Butler, P. J., alluding to the evidence that plaintiff had stated that defendant did not owe her anything, inter alia, said :
    “The question.here is, whether this note was forged. If the old lady said John owes me nothing but on book account, what weight should this testimony have ? What did she mean if she said that ? Did she mean that John owed her nothing but on book account ? Did she mean that he had not given her the note ? There is no pretence that he ever paid anything on it. Did she mean this claim arose out of book account? * * * You will look at the paper and judge whether it is a paper made since the conversation a year or months ago, or whether it is an old paper made years back. If that is so, then she could not have meant that she had no note at the time. [As she was talking to strangers, she was under no obligation to tell them the truth about her business.] If she did not mean to say she had not the note, did she mean to say the note she had was a forgery ? Do people ordinarily confess when they have papers purporting to be made by others, but are not, that they are forgeries ? Did she mean so to confess ? You will say. whether it is probable or not. If she made such statement before these witnesses, is it probable she would come here and swear to the contrary ? She swears here that the note is due her; has never been paid. If she made the statement to these witnesses that they understood her to make, as the defendant construes it, that the note is a forgery, it is inconsistent with her attitude since and here. If willing to make such confessions then, why not do so still ? Her son John, it may be inferred, is as near to her now as then, and if she made such confessions in his favor then, why change her position? I only suggest these thoughts; they arise naturally out of the evidence, and must be considered by you in reaching a correct conclusion. They are for you entirely. In respect to them the court does not mean to bias your minds in the least.
    “You will say what weight should be attached to Mr. Rauch’s testimony. He says, I doubt whether this signature to the note’is a natural signature; I am inclined to believe it is simulated. This witness does not know the handwriting of defendant, and therefore cannot testify whether this is his handwriting or not. He is an’ intelligent man, and if familiar with the handwriting of the defendant he might have given valuable testimony; but, unfortunately, he knows nothing of his handwriting. * * * Is that testimony of any value at all ? He never saw the man write; he does not base his judgment on that. Looking at the signature without knowing anything about the signature of the man, he says, I doubt whether I it is a natural hand; I incline to believe it is simulated. [I say to you, that to such testimony, in my judgment, little weight should be attached.] * * * The case presents questions of fact only; they are entirely for you to determine. You will consider them with care. * * * I submit the case to you.”
    Verdict for plaintiff for $1511.20. The defendant took this writ and assigned for error the admission of the note without proof of its execution, the exclusion of the above evidence offered by defendant and the foregoing portions of the charge in brackets.

      Charles H. Penwypacher, for the plaintiff in error.
    The plea was non est factum. The rule of court provided for notice. That notice was given by the affidavit of defence. The construction of the rule by the court worked injustice to John Reese, and the Supreme Court has' the power to revise and correct such error: Sterling v Ritchey, 17 S. & R. 263; Magill’s Appeal, 9 P. F. Smith 430; Brennan’s Estate, 15 Id. 16.
    The testimony of experts that the whole of an instrument was written by the same hand, is receivable: Fulton v. Hood, 10 Casey 370; Burkholder v. Plank, 19 P. F. Smith 225: Ballentine v. White, 27 Id. 26.
    The plaintiff’s declaration to three disinterested witnesses repelled the idea that she had any claim upon any note against her son. And yet the’ court below uses this remarkable language to the jury: “As she was talking to strangers, she was under no obligation to tell them the truth about her business.” This was manifestly erroneous.

      II. H. Grilkyson and William B. Waddell, for defendant in error.
    A failure to enforce, the rule, in this instance, would have taken the plaintiff by surprise, and worked injustice to Margaret Reese, and, if disregarded by the court, would have been such an error as the Supreme Court would have -revised and corrected: Brennan’s Estate, 15 P. F. Smith 16.
    The court had power to make such a rule of practice, not being in violation of law, and the extent and application of the same were properly decided by the court below. The Supreme Court will not interfere in the construction of the rules of practice: Snyder v. Bauchman, 8 S. & R. 336; Rundel v. Keeler, 7 Watts 237; Frank v. Colhoun, 9 P. F. Smith 381; Coleman v. Nantz, 13 Id. 178; Carey v. Commonwealth, 4 Brewst. 62; Andrews v. Bank of Titusville, 23 Pitts. L. J. 133.
    A comparison of handwriting is only permitted when the paper sought to be made the test or standard has been established by positive testimony, ¿S the authentic and genuine handwriting of the same party : McCorkle v. Binns, 5 Binn. 348; The Farmers’ Bank v. Whitehill, 10 S. & R. 110; Lodge v. Pipher, 11 Id. 334; Baker v. Haines, 6 Whart. 291; Travis v. Brown, 7 Wright 9; Aumick v. Mitchell, 1 Norris 211.
    The recognised rule in the discussion of evidence permits a judge in charging the jury, to. express an opinion upon the facts in the case, and the weight of the evidence, provided the facts be not withdrawn from the jury: Williams v. Carr, 1 Rawle 420; Ditmars v. Commonwealth, 11 Wright 335; Mohoney v. Evans, 1 P. F. Smith 84; Ralston v. Groff, 5 Id. 278; Burke v. Maxwell’s Admrs., 31 Id. 139.

      May 5th 1879.
   Mr. Justice Trunkey

delivered the opinion of the court,

The rule is within the power of the court to make, and filing an affidavit of defence is not the requisite notice to put a party to proof of execution of the writing. There can be nothing in the allegation that “the construction of the rule by the court; worked injustice to John Reese;” nor was it a favor to Margaret Reese. The first witness called‘by the latter testified that she saw the former sign his name to the note. With that witness present, both parties having knowledge of what she would say, the whole contention would seem to have been to obtain a construction of the rule; and we are not convinced that there was error or hardship in the interpretation. It would be an extreme case which would require reversal, because of error in admitting a writing without preliminary proof of signature, when, in a subsequent stage of the trial, positive evidence was given of its execution: Hannay v. Stewart, 6 Watts 487; Gaskell v. Morris, 7 W. & S. 32.

The last four assignments are to portions of the charge. By themselves, some of these seem erroneous; but are not, taken with the context. For instance, the sentence: “As she was talking to strangers, she was under no obligation to tell them the truth about her business,” is in the midst of remarks of which the judge says: “I only suggest these thoughts; they arise naturally out of the evidence, and must be considered by you in reaching a correct conclusion. They are for you entirely. ' In respect to them the court does not mean to bias your minds in the least.” Again, the subject of the eighth assignment is not “relative to the testimony of experts,” but to the particular testimony of the witness, quoted immediately preceding the alleged erroneous words. The jury were expressly told that it was for them to say what weight should be attached to the testimony of the expert; Mr. Rauch. Although the charge as a whole very decidedly exhibits the learned judge’s opinion in favor of the plaintiff, supported by able argument, it is not assigned that the jury were misled thereby. He submitted every question to the jury, saying in conclusion:.“ The case presents questions of fact only ; they are entirely for you to determine.”

Rauch, while waiting as a witness for John Reese, saw him write several times — he wrote at request of his counsel. From knowledge of Reese’s handwriting, thus acquired, the witness was incompetent to testify his belief as- to the genuineness of the signature in question. It has never been the .practice in Pennsylvania to permit a witness to give an opinion when taught in that manner. In Stranger v. Searle, 1 Esp. 14, the witness had seen the defendant write his name several times, previous to the trial, for the purpose of showing to the witness his true manner of writing; Lord Kenyon rejected the testimony, saying: “The defendant might write differently from his common mode of writing his name, through design.”

The only error appearing is the overruling an offer to prove by an expert whether, in his judgment, the body of the note and signature were written by the same hand. “It was ruled in Fulton v. Hood et al., 10 Casey 365, that the testimony of experts is receivable, in corroboration of positive evidence, to prove that in their opinion the whole of an instrument was written by the same hand, with the same pen and ink, and at the same time. This case indeed is the converse of that, but the principle is undoubtedly the same, whether the evidence is of experts to attack or support the instrument:” per Sharswood, J., Ballentine v. White, 27 P. F. Smith 20. John Reese had previously testified that he did not sign the note. Confessedly, he did not write the body of it. When one party alleges the body and signature were written by the same hand,' and the other the contrary, what can be more clearly admissible than testimony of one so skilled as to be able to determine the point by inspection ? Just here, if anywhere, is the testimony of an expert competent and valuable. It is certainly true that the positive declaration of a witness that she saw the party write his name, if believed, cannot be overcome by the opinion of an expert; nor can it by any other kind of evidence. Peradventure, such declaration may not be credited by the jury, and, therefore, evidence pertinent to the issue, shall not be rejected .by the court.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Mercur

text:
    Shaffer versus Clark
    1. The Act of 1869 having made parties to an action competent witnesses for all purposes, the evidence of a defendant in his own behalf, although unsupported and positively contradicted by the plaintiff, must be submitted to the jury. Prowattain v. Tindall, 30 P. P. Smith 295, followed.
    2. The payment of usurious interest, after a debt becomes due, is not a valid consideration for an agreement to give time. Hartman v. Danner, 24 P. P. Smith 36, followed.
    March 31st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Wayne county: Of January Term 1.878, No. 146.
    Scire facias to revive a judgment wherein Thomas Clark was plaintiff and Thales K. Varney and Joseph Shaffer defendants. The pleas were nul tiel-record, payment with leave, &c. The plea of nul tiel record was withdrawn and Shaffer filed a special plea averring, that he was surety for the defendant Varney on the note on which judgment was entered; that after the note became due he gave notice to plaintiff to collect the same of Varney, or he would no longer be bound as surety, and that plaintiff wholly neglected to collect said note from Varney, although such collection could then have been made: that plaintiff, for a valuable consideration, extended' the time of payment from 4th September 1872, to 4th September 1876, at the instance of Varney, and without the knowledge or consent of Shaffer; and that plaintiff had released lands of Varney from the lien of said judgment, without the knowledge or consent of Shaffer. The replication was a general denial of the matters alleged by the defendant.
    At the trial it appeared that on September 4th 1871, Clark loaned Varney $1000, for which the latter gave his judgment note payable one year from date with lawful interest. At the request of Varney, Shaffer signed the note as surety. Judgment was subsequently entered on the note to December Term 1871. At the time of the execution of the note, Varney paid Clark a bonus of $40. It appeared that the note was extended from year to year, and at each extension Varney paid Clark $100 ; one year’s interest at 10 per cent. On September 4th 1876, this action was brought to revive the judgment. On April 5th 1875, Clark also released a house and lot which Varney had sold to one Bloes for $350, from the lien of the judgment. Shaffer testified that he met Clark after the original note had become due and had notified him to collect it; that Varney had property and that if plaintiff did not collect it, defendant would not be responsible; that after that defendant did not know whether the note -was paid or not; that he supposed it was paid; that he never heard of any further time having been given by Clark, and that he first learned that the note had not been paid ~ by the service of the writ upon him in this case. The defendant was not corroborated in any of these statements and was contradicted in every particular by the plaintiff, who declared he scarcely knew the defendant and had never spoken a half dozen words to him ; that no conversation as that alleged occurred.
    The defendant submitted the following points, to which are appended the answers of the court, Waller, P. J.:
    1st. If Shaffer was a surety for Varney, and after the debt became due, gave notice to plaintiff to collect it, and he failed to do so, he (Shaffer) would no longer be bound as surety; Shaffer would be discharged in law if plaintiff neglected to collect the debt; and the burden of proof is on the plaintiff to show that it could not by due diligence have been collected from Varney after such notice was given.
    Ans. “In answering this point we first inclined to affirm it, leaving to you the question of the weight of evidence as to the notice; but on more deliberation, in view of the fact that our courts of law are leaning largely to doing equity, and considering that we have the naked, unsupported oath of the defendant, upon whom devolves the onus of sustaining his plea, as positively contradicted by the oath of the plaintiff, thus leaving the jury to guess which of the parties in interest may have told the truth, we have concluded to instruct you, and do so instruct you, that there is no sufficient evidence upon which to submit to you the question of notice. We therefore negative this point.”
    Sd. If Shaffer was a surety for Varney, and plaintiff, for any legal consideration, extended the time of payment beyond the period designated in the note on which judgment was entered, without Shaffer’s consent, Shaffer is in law discharged.
    Ans. “ This point is sound as a legal proposition, but, in its application here, we must instruct you that the first payment upon the judgment by Varney was six days after the maturity of the note, and was not a legal consideration for the extension of the time of payment. The payment of interest or part of the principal, or payment of a bonus, after the debt has become due, is not a valid consideration in law for an agreement to extend payment. We must therefore negative this point.”
    In the general charge, the court, inter alia, said:
    “And now you will take this case and ascertain, .under the instruction we have given you, what amount, if any, remains due to plaintiff' upon the judgment. You will see what amount has been paid, applying any excess over interest to the principal, year by year, to April 5th 1875, when you will deduct the value of the Rloes house and lot released, and ascertain the balance. All payments made after the 4th September 1872, were to be applied upon a debt due, and there was no time when the plaintiff could not after that have issued execution, or at which this defendant Shaffer could not have paid plaintiff, taken' assignment of the judgment,, and enforced collection.”
    The verdict was for plaintiff for $483.12. The defendant, after judgment thereon, took this writ, and assigned for error, inter alia, the answers to the foregoing points, and the portion of the charge noted.

      W. S. Dimmieh and JI. Wilson, for plaintiff in error.
    If the rule adopted by the court below is to apply when there is but a single witness on each side, it must, on principle, hold equally well when there are two, or ten, or a hundred, on each side; and every question of fact must be decided by a show of hands, or a poll of witnesses. Such a rule is unknown either in law or equity. The Act of 1869 does not require that the evidence of the party in interest, though the only evidence on his side of the case trying, should be corroborated in order to make it effective. Such testimony, just as any other, must be submitted to the jury, and it is for that body to, say how far the interest of the witnesses giving it shall affect its credibility. • The jury may discard it as unworthy of belief, but the court may not do so: Prowattain v. Tindall, 80 P. F. Smith 295.
    The extension of the time of payment for a valuable consideration without the knowledge of the surety discharged the surety. In the present case, the plaintiff unquestionably extended the time of payment for four years after the maturity of the debt. But it is contended, on his part, that this extension was without consideration, and therefore did not interfere with his right to proceed against his debtor at any .time. But an extension of time, placed on record by the plaintiff, even if without consideration, should estop him from denying that his right to collect the debt was thereby suspended. If it did not so estop him as against the principal debtor, it should at least have that effect so far as the rights of others are involved. If it is contended that the entry on record was notice to the surety of the extension of time, he had a right to assume that a legal consideration had passed in the case, and that the plaintiff was bound by what he had thus placed on the record. If the record, from year to year, was constructive notice to Shaffer that the debt remained unpaid, it afforded like notice of transactions from which he had a right to infer that he was discharged. The extension of time entered on the record by the plaintiff should be treated as an actual stay of execution — such as in Clippinger v. Creps, 2 Watts 45, was held to discharge a surety, the principal debtor not being legally entitled to a stay.

      George G. Waller, for defendant in error.

    “A notice from a surety to the creditor to proceed against the principal or otherwise the surety will be discharged, ought in justice to be in writing, and in the most explicit terms. * * * We have a right to hold, and justice requires us to say, however, that nothing less than clear and positive proof of the notice given by a person duly authorized to give it, and a notice clear and explicit in its terms, given at a time when the creditor has it in his power to proceed to collect his debt, should discharge the surety from an undoubted legal obligation to pay the debt:” Conrad v. Foy, 18 P. F. Smith 381. An agreement to give time in order to discharge a surety requires a consideration to support it: Ashton v. Sproule, 11 Casey 492; Brubaker v. Okeson, 12 Id. 519; Zane v. Kennedy, 23 P. F. Smith 182.
    It is not claimed that Yarney paid anything for an extension, except the usury he agreed upon at the time of the original loan. An agreement to extend the time of payment, in consideration of the payment of usurious interest, does not discharge the surety; it has no effect on the original contract: Mayfield v. Gordon, 2 Am. Law Reg. 187; Hartman v. Danner, 24 P. F. Smith 36.
    May 7th 1879.
   Mr. Justice Mercur

delivered the opinion of the court,

This was an action of scire facias on a judgment. The judgment was entered on a judgment-note, signed by one Yarney and by Shaffer. The latter claimed that he signed as surety. He therefore requested the court to instruct the jury, “if Shaffer was a surety for Varney, and, after the debt became due, gave notice to plaintiff to collect it, and that if he failed to do so, he, Shaffer, would no longer be bound as surety, Shaffer would be discharged in law, if plaintiff neglected to collect the debt; and the burden of proof is on the plaintiff to show that it could not, by due diligence, have been collected from Varney after such notice was given.”

The learned judge conceded this point to be correct as a legal proposition, and impliedly admitted that if the evidence of Shaffer was sufficient to establish the fact, he would submit that evidence to them, but declined to affirm it. He assigned as a reason for his refusal that the only evidence of the notice was “the naked, unsupported oath of the defendant,” and it was “positively contradicted by the oath of the plaintiff,” and therefore he concluded “ there is no sufficient evidence upon which to submit to you the question of notice.”

This instruction fails to give due effect to the Act of 1869, which permits parties to testify in their own behalf. Within the class of cases prescribed by the statute, “no interest nor policy of law” excludes them. Their legal disqualification is thereby removed. They are competent witnesses for all purposes. Being thus made competent, the court cannot withhold their testimony from consideration of the jury. It was well said by Mr. Justice Gordon, in Prowattain v. Tindall, 30 P. F. Smith 295, “ the act does not require that the evidence of the party in interest, though the only evidence on his side of the case trying, should be corroborated in order to make it effective.” The fact that in a common-law action, one party swears in-direct conflict with the other party, no more authorizes that evidence to be withheld from the jury than the conflicting evidence of two disinterested witnesses. The court passes on the competency of a witness, but the jury on his credibility.' They may believe one witness and discredit another, whether interested or disinterested. Hence, in the case of Flattery’s Appeal, 7 Norris 27, we sustained a decree in divorce upon the testimony of the wife, wdiich was substantially contradicted by the husband. The first, second and third assignments are sustained. There is no error in the portion of the charge covered by the thirteenth assignment. As the payment of usurious interest after a debt becomes due is not a valid consideration for an agreement to give time (Hartman v. Danner, 24 P. F. Smith 36), we discover no fact to sustain the remaining assignments.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Sterrett

text:
    Wayne County versus Waller et al.
    1. Where counsel are assignecLby a court to defend a pauper criminal, the county wherein the trial is had is not bound to pay their fees, nor even the expenses incurred in the preparation and course of the trial. One of the incidents of the office of counsel, who is an officer of the court, is to defend such prisoners gratuitously.
    '2. At common law no money can be drawn from the public treasury except by virtue of a statute. In Pennsylvania the courts have always proceeded on the safe principle of requiring statutory authority, either in express terms or by necessary implication, for all claims upon the public treasury. If counsel, therefore, make advances on account of the defence of a pauper criminal, they cannot recover such advances from the county.
    March 31st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Wayne county: Of January Term 1879, No. 247.
    Case stated, wherein George G. Waller and Henry M. Seely were plaintiffs, and the County of Wayne defendant, as follows:
    Mary E. Van Alstine was arrested and committed to the county jail of Wayne county, in August 1878, on the change of having murdered her husband by poisoning with strychnine, and at September Sessions of the Court of Oyer and Terminer, in said county, she was indicted for murder. Upon November 8th 1878, she presented her petition in writing to the judges of said court, setting forth her poverty and innocence, and praying that the court would assign counsel to defend her, and provide some means of paying the necessary expenses of preparing her case for trial. The plaintiffs, who are attorneys at law, were, thereupon, appointed by the court to defend Mrs. Van Alstine, the court at the same time recommending that the county of Wayne furnish her with one hundred and fifty dollars to meet her expenses and pay her counsel. On 9th December 1878, the trial of Mrs. Van Alstine having been continued at the request of the Commonwealth, and no funds having been appropriated by the county under the recommendation of the court for her benefit, Henry M. Seely, one of the counsel appointed to conduct her defence, presented to the court a petition, setting forth Mrs. Van Alstine’s confinement in jail, her poverty, the necessity of incurring expense in properly investigating the case and preparing the defence, and praying the court to direct the county commissioners to appropriate and pay over to Mrs. Van Alstine’s counsel the sum of one hundred and fifty dollars for the purpose of defraying such expense, which petition was granted by the court and served upon the county commissioners, who made answer that it would be impossible for them to comply with the order of the court.
    On .January 13th 1879, a new board of commissioners having come into office, a new order of court was made, directed to the commissioners, commanding them to appropriate and pay over unto Gr. Gr. Waller or Henry M. Seely, the sum of one hundred and fifty dollars to defray the necessary expenses of preparing Mrs. Van Alstine’s defence, or show cause on Saturday, the 18th of January, why an attachment should not issue. To this order the commissioners made answer, denying that the order of the court would protect them in the payment of money for such purpose, denying the right of the commissioners to pay such money, setting forth that the county was largely in debt and the treasury empty, and that the commissioners are of the opinion that they would render themselves personally liable for any moneys which they might appropriate for the purpose mentioned. This answer was adjudged insufficient by the court, and the matter was continued to the 24th of January, at 2 o’clock, with order that attachment should then issue if the money was not paid. On January 24th the matter was left open by consent of counsel in order that a case stated might be prepared and presented to the Court of Common Pleas to try the question of the obligation of the county in the premises. In the absence of any appropriation by the county commissioners, Mrs. Van Alstine being confined in jail without money or property, the said Waller and Seely proceeded, at their private expense, to prepare the defence of Mrs. Van Alstine, and expended in the investigation of the case, necessary to its proper presentation in court, the sum of one hundred and fifty dollars. At February Sessions 1879, of the Court of Oyer and Terminer in Wayne county, Mrs. Van Alstine was tried upon the said charge of murder, defended by these plaintiffs under appointments by the court, and acquitted by the jury-
    If the court shall be of the opinion that it was the duty of the county of Wayne, under the direction of the court, to furnish necessary means to enable the counsel assigned by the court to properly investigate the case and prepare the defence of Mrs. Van Alstine, it is agreed that such necessary expense actually incurred was one hundred and fifty dollars, and the court shall direct judgment in favor of the plaintiffs against the defendant for that sum.
    If the court shall be of the opinion that the counsel, undertaking - and conducting, under assignment by the court, the defence of Mrs. Van Alstine, are entitled to compensation from the county for services so rendered, they shall receive the sum of two hundred dollars, and the court shall direct judgment for the plaintiffs against the defendant for that sum in addition to the sum of one hundred and fifty dollars for expenses above stated.
    If the court shall be of the opinion that the county of Wayne is not liable to pay, either for the expense incurred or services rednered by counsel in the preparation and conduct of the defence of Mrs. Van Alstine, then judgment to be awarded for the defendant.

      The court, Waller, P. J., after argument, ordered “that the plaintiffs have judgment against the defendant for the sum of three hundred and fifty dollars, to wit: Two hundred dollars for services preparing and conducting the defence of Mrs. Mary E. Yan Alstine, under assignment by the court, and one hundred and fifty dollars for the expenses necessarily incurred in the preparation of such defence.”
    This order was assigned for error by defendant, who took this writ.

      Q-eorge S. Purdy, for plaintiff in error.
    By the common law, the public pays no costs. As the liability is created by statute, it cannot be extended beyond the limits assigned to it by the legislature. Neither the court, nor the county commissioners, nor any other functionary can bind the county for costs in any way not prescribed by statute: Berks Co. v. Pile, 6 Harris 493; Commonweath v. Horner, 10 Casey 440.
    The sixty-fourth section of the Criminal Procedure Act of 1860 (Purd. Dig. 391), provides that “the costs of prosecution accruing on bills of indictment charging a party with felony, shall, if such party be acquitted by the petit jury on the traverse of the same, be paid by the county.” Under this statute the plaintiffs below must claim the $150, if at all. The costs and expenses of a defendant in resisting an indictment are no part of the costs of prosecution, and do not accrue upon the bill of indictment: County of Franklin v. Conrad, 12 Casey 317; Huntingdon County v. Commonwealth, 22 P. F. Smith 80. Since the Act of 1860, the costs of a defendant in a case of felony are as at common law, and the county is not liable: Huntingdon County v. Commonwealth, supra.

    The order, if obeyed by the commissioners, would not discharge them from personal liability to the county for the money so misappropriated, and it would be the duty of the county auditors, upon settlement of the commissioners’ accounts, to charge the same back to them: Commissioners of Lycoming v. The County of Lycoming, 10 Wright 496. It has been decided in other states that counsel assigned by the court are not entitled to compensation for their services: Vise v. Hamilton, 19 Ill. 78; Rowe v. Yuba, 17 Cal. 61.

      Greorge Gr. Waller and 3. M. Seely, for defendants in error.—
    The court was required by law to assign counsel for the prisoner: Act May 31st 1718, sect. 4, Purd. Dig. 1098, pi. 2. The court under the requirements of the act imposed upon two of its ofiicers a specific duty, considered essential to the proper administration of justice in a case then pending before them, involving the life of a citizen of the Commonwealth. Shall it be said the court is absolutely helpless in such a case? That in a case where such an issue is presented justice must go unadministered, and the life and character of an innocent citizen must be sacrificed because the court have no power to require the county to provide the means necessary for the reasonable protection of a defendant, without an Act of Assembly expressly conferring it ? Has a court of general criminal jurisdiction no implied powers by which it can, in an extraordinary emergency, secure the end for which it was created — the administration of justice ? It may impose upon a county the expense of boarding and lodging a jury kept together in a capital case: Commissioners v. Hall, 7 Watts 290. The coroner may direct a post mortem examination, and the county must pay the physician as an expert: Allegheny v. Watt, 8 Barr 462. The county in which this court sits is liable for the incidental expenses of the court: McCalmont v. County of Allegheny, 5 Casey 417. The county is liable for expense of fuel to keep prisoners comfortable in jail: Richardson v. Clarion Co., 2 Harris 200. It is not necessary to multiply authorities. In none of these cases did any statute exist charging the county with any portion of the expenses.
    Dr. Wharton, in his work on Criminal Law, vol. 3, sect. 3006, gives it as his view that counsel assigned for defence of poor defendants in criminal courts, have a right of action against the county for their fees, citing: Regina v. Fogarty, 5 Cox C. C. 161; Blythe v. State, 4 Ind. 525; Dane v. Smith, 13 Wis. 585; Hull v. Washington, 2 Green 473; Davis v. Linn, 24 Iowa 508. We based our claim upon the two grounds: 1. That when the court of general criminal jurisdiction has determined that the payment of certain expenses by the county is necessary to enable the court to perform its legitimate functions of administering justice, and has ordered the county to pay such expenses, a legal obligation is imposed upon the county which will sustain an action. 2. That when the law requires the court to assign counsel to perform certain duties, there is an implied obligation to remunerate them.
    We lay our claim upon both grounds, believing them both to be sound, but hoping to recover our expenses, legitimately as such, and if this cannot be, then to recover them under the form of fees.
    May 5th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

This contention arises upon the facts submitted to the court below in the nature of a case stated. The plaintiffs below, attorneys at law, were appointed by the Court of Oyer and Terminer to defend a woman who was indicted for murder. On her petition, the court first recommended and subsequently ordered the payment by the county of $150 to enable her to secure the attendance of witnesses and prepare for trial. The commissioners of the county refused to comply with the request or to obey the peremptory order, claiming that the court had no authority to make it, and that if they acquiesced, they would render themselves personally responsible to the county for the amount so paid. The facts, as fully set forth in the case stated, were presented to the court in the following terms, viz.:—

“ If the court shall be of opinion that it was the duty of the county of Wayne, under the direction of the court, to furnish necessary means to enable the counsel assigned by the court to properly investigate the case, and prepare the defence of Mrs. Van Alstine, it is agreed that such necessary expense actually incurred was $150, and the court shall direct judgment in favor of the plaintiffs against the defendant for that sum.”
“ If the court shall be of the opinion that the counsel, undertaking and conducting, under assignment by the court, the defence of Mrs. Van Alstine, indicted for murder by poisoning, are entitled to compensation from the county for services so rendered, they shall receive the sum of $200, and the court shall direct judgment for the plaintiffs against the defendant for that sum, in addition to the sum of $150 for expenses above stated.”
If the court shall be of opinion that the county is not liable to pay, either for the expense incurred or services rendered by counsel in the preparation and conduct of the defence of Mrs. Van Alstine, then judgment to be awarded to the defendant. Either party to have the right to sue out a writ of error.”

The learned judge held that the county was liable for both sums, and entered judgment accordingly; and this is assigned for error.

By the common law, no costs are paid out of the public treasury. In the County of Franklin v. Conrad, 12 Casey 317, it is said the recovery and payment of costs, in criminal cases, are so entirely dependent on statutory regulations in Pennsylvania that it is indispensable for every claimant to be able to point to the statute which entitles him to receive what he claims. We are not aware of any law, common or statute, that requires the county to pay a defendant’s costs in a criminal case, or authorizes the court to call upon the county to advance money to be expended by a prisoner or his counsel in subpoenaing witnesses and otherwise preparing for trial. The claim of the plaintiffs below derives no additional strength whatever from the fact that the court first requested and afterwards commanded the commissioners to pay the money. No authority can be found for either a request or peremptory order in such case. If the county commissioners had drawn a warrant for the amount ordered by the court, they would have rendered themselves personally liable for the same, as in the case of The Commissioners v. The County of Lycoming, 10 Wright 496.

The 9th section of the Declaration of Rights gives to the accused, in all criminal prosecutions, the right “ to have compulsory process for obtaining witnesses in his behalf.” The practice which has obtained, and, so far as we know, is recognised in every criminal court, of awarding process and directing the service thereof, at the instance of parties accused of crime, rests upon this sufficient foundation; and no court will turn a deaf ear to the appeal of an impecunious prisoner, who makes timely application for process to bring in his witnesses. It will always be awarded on proper application ; the court will see that it is served, and compel the attendance of witnesses. As to the compensation of the clerk who issues, and the officer who serves, the process, and the witnesses who obey it, that is another matter. They, cannot be paid out of the public treasury, unless statutory warrant can be found for so doing. In many cases this may be a great hardship, but the remedy, if any id needed, rests with the legislature, not in the courts. As to the officers, such service must be regarded as an incident of official position. They take and hold office cum onere. The hardship is greatest on witnesses, especially such as are too poor to pay their expenses while attending court, in obedience to its process, on behalf of an insolvent prisoner. Until otherwise provided for, it must be set to the account of that service which every one at times owes to the government under which he lives and whose protection he enjoys. In Huntingdon County v. The Commonwealth, 22 P. F. Smith 80, Chief Justice Thompson, speaking of the hardship referred to, expresses regret that suitable legislative provision for such cases does not exist.

It is very clear to us that the county was neither bound to furnish money nor reimburse the defendants in error for the amount expended by them in behalf of the prisoner; and we think it is equally manifest that it was under no legal obligation to compensate them for their professional services. They were officers of the court, and, like others, took their offices cum onere. , One of these burthens, which custom has recognised, is the gratuitous service rendered to a poor prisoner, at the suggestion of the court. There are, however, some respectable authorities sustaining, on plausible grounds, the opposite view: Hall v. Washington County, 2 Green 473; County of Dane v. Smith, 13 Wis. 585. In the first of these, it was held, in an opinion delivered by Chief Justice Williams, that inasmuch as the constitution of Iowa guaranteed to the prisoner a speedy trial and “the assistance of counsel for his defence,” and as the court acted in obedience to the express mandate of a statute in assigning counsel, and the latter, as an officer of the court, was bound to serve, an obligation arose to pay a reasonable compensation for the service thus rendered, and consequently the county was liable. In the other case, a somewhat similar view was taken, the court remarking that the liability of the county resulted from the exercise of the power and duty of the court to appoint counsel, not because the court was authorized to contract for the county or its officers. In other states it has been decided differently. In Rowe v. Yuba County, 17 Cal. 61, Chief Justice Field says: “We are clear that the action cannot be main-tamed. The Court of Quarter Sessions is not authorized to create any charge against the county, except in certain special cases of which the employment of counsel for parties under indictment is not one. Besides, it is a part of the general duty of counsel to render their professional services to persons accused of crime, who are destitute of means, upon the appointment of the court, when not inconsistent with their obligations to others, and for compensation they must trust to the future ability of the parties. Counsel are not considered at liberty to reject, under circumstances of this character, the cause of the defenceless, because no provision for their compensation is made by law.” . To the same effect is Vise et al. v. The County of Hamilton, 19 Ill. 78, in which it is said: “The law confers on licensed attorneys rights and privileges, and with them imposes duties and obligations, which must be reciprocally enjoyed and performed. The plaintiffs but performed an official duty for which no compensation is provided.”

While there is some force in the reasoning of the Iowa and Wisconsin courts, we adhere to the opposite view as according better with a practice which has been almost universal and of such long standing as to have acquired the force of law. In this state we have always proceeded on the safe principle of requiring statutory authority, either in express terms or by necessary implication, for all such claims upon the public treasury. To hold that counsel, appointed to defend insolvent prisoners, may demand compensation from the county, would be a departure from a time-honored custom to the contrary, and it is not difficult to foresee the mischief to which it would lead. It is far better to let such cases rest on the foundation which has hitherto sustained them: human sympathy and a just sense of professional obligation. No poverty-stricken prisoner is ever likely to suffer for want of necessary professional or pecuniary aid.

It is but simple justice to the learned gentlemen who defend against this writ, to say, that in their brief, as well as orally, they disclaimed any desire for remuneration beyond an amount sufficient to reimburse them for their actual cash outlay; but we find no warrant for sustaining their claim even to this extent.

The judgment of the Common Pleas is reversed and set aside, and judgment is now entered in favor of the defendant and against the plaintiffs below.


author: Per Curiam.

text:
    Dean’s Appeal.
    1. Undecided, whether the refusal of a court to order the removal of the committee of a lunatic is the subject of review by the Supreme Court. Nothing, however, but a very clear case could justify such intervention.
    2. The facts of this case do not justify such intervention.
    March 31st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Appeal from the Court of Common Pleas of Wayne county: Of January Term 1879, No. 195.
    Appeal by John Dean and Catherine his wife, in right qf the wife, a daughter and heir-at-law of Catherine Hoban, a lunatic, from a decree of the Common Pleas of Wayne county, on an application for the removal of H. C. Hand, committee of said lunatic.
    The following are the material facts on which the application in the court below was founded:
    At the commencement of the year 1869, Catherine Hoban, a widow of about eighty, her sons Patrick and James, and daughter Catherine, .lived in the village of Hawley, Wayne county. Patrick was married to a sister of Thomas Hennigan; James never married; and Catherine was married to John Dean. James Hoban and Hennigan were partners in the mercantile business.
    Patrick Hoban died in January 1869. By his will he directed that his mother should have “a decent support” from his estate. The mother, who had previously lived with him, remained with his widow, Bridget A. Hoban, until sometime in 1872, when she went to live with her daughter, Catherine Dean.
    In 1870 Hennigan died. James Hoban remained in possession of the partnership property, and continued the business. In June 1871, Bridget A. Hoban took out letters of administration on Hennigan ’s estate. In September following, James Hoban died, without having made any settlement of the partnership accounts. Letters of administration on his estate were granted to Peter Walsh, a cousin of Hennigan and of Bridget A. Hoban. Walsh neglecting to settle the partnership accounts, a suit was commenced against him in 1873, by direction of Attorney-General S. E. Dimrnick, Mrs. Hoban’s counsel. Walsh, who lived in Luzerne county, accepted service of the writ, and on the part of the defence, F. M. Crane, Esq., appeared “for parties in interest;” but no further steps were taken in this action.
    In December 1874, the administration account of Walsh was referred to H. M. Seely, Esq., as auditor. On the hearing, no claim was presented by Bridget A. Hoban, as administratrix of Hennigan, and the auditor reported that “the accountant is charged with no part of Hennigan’s assets.” She did appear in support of various individual claims, which had been allowed by the administrator, Walsh. The auditor rejected most of these, as unwarranted; at the same time reflecting severely on the transactions “ between these cousins,” as showing “a disposition to absorb the estate, and a want of good faith;” and on this ground he refused to allow Walsh any commissions, and surcharged him with the amount improperly allowed to Mrs. Hoban.
    The auditor’s report was filed in May 1875, but, on motion of Mr. Dimmick, was referred back for further testimony. In September the auditor filed a report, restating the account, and allowing some of Mrs. Hoban’s claims, which he had previously rejected, and also the administrator’s commissions. The balance in the accountant’s hands, $3875.54, he distributed to Catherine Hoban, surviving parent of the decedent. This report was confirmed absolutely.
    In 1874 and 1875, the Orphans’ Court made orders for the payment of $1000 from the estate of Patrick Hoban, for his mother’s support, pursuant to his will. In September 1875, the mother, being in her dotage, was found a lunatic, and F. M. Crane, Esq., was appointed her committee. In December following, an order was made for the payment of' $50 a month from the estate of Patrick Hoban for her support, and this was regularly paid to her son-in-law, John Dean, with whom she lived. Mr. Crane also collected from Peter Walsh the money distributed to Catherine Hoban, and recovered for her James Hoban’s interest in the partnership realty, with $440 mesne profits. He continued to act as committee until his death in January 1877. In March following, H. C. Hand was appointed committee. April 2d, he presented a petition, through Gr. Gr. Waller, Esq., his attorney, setting forth the receipt of moneys and property from the estate of James Hoban, the provision in the will of Patrick Hoban for his mother’s support, and the orders of the court in the premises : “ that since she came into the possession of the moneys and property above named, no change has been made, nor modification of the orders;” and praying the court “to make such order in the premises as they shall think just and proper; and if they decree the estate of Patrick Hoban to pay the whole or any portion toward her support, then to order and direct what sum monthly the executor of Patrick Hoban, deceased, shall pay to your petitioner; and such other and further order as shall to your honors seem proper.”
    On the same day the court ordered, “ that the committee pay, out of any funds in his hands, and belonging to the said Catherine Hoban, in addition to the rent of the house she occupies, a sum not exceeding $20 per month, until the further order of the-court.”
    This being construed by the committee as discharging the estate of Patrick Hoban until further order, the monthly allowance of $50 was no longer collected.
    Meantime, Mr. Dimmick dying in October 1875, Bridget A. Hoban employed G. G. Waller, Esq., as her attorney. In November 1875, an amicable action was entered at the suit of Bridget A, Hoban, administratrix of Thomas Hennigan, v. Peter Walsh, administrator of James Hoban; at December Term 187 6 judgment was taken by plaintiff by consent, for $3500; in February 1877, without scire facias to bring in heirs, a sheriff’s sale of Hoban’s interest in the partnership realty, which Catherine Hoban had recovered, was made to Bridget A. Hoban, for $100, Walsh waiving inquisition; and in May following, the same realty was sold by order of the Orphans’ Court, for the payment of this judgment, on the petition of Walsh, presented by Mr. Waller, and was bought by Bridget A. Hoban for $525. John Dean and wife filed exceptions, alleging that the judgment had been fraudulently confessed, and that no debt was then due from Hoban’s estate to Hennigan’s estate, and praying “that Bridget A. Hoban may be compelled to prove her said claim and judgment against the estate of said James Hoban, and that these petitioners may have opportunity to defend therein.” The court, however, in September following, confirmed the sale absolutely. On appeal to the Supreme Court, this order of confirmation was reversed. (See Dean’s Appeal, 6 Norris 24.)
    Both before and after confirmation of this sale, Mr. Hand was urged by Dean to employ other counsel than Mr. Waller, andMefend Catherine Hoban’s interest. On one occasion Dean was accompanied by Cornelius Smith, Esq., an attorney residing in Scranton, who called on Mr. Hand “for the purpose of getting him to employ counsel to bring the case to the Supreme Court.” Mr. Smith alleged “that this was a fraudulent'judgment,” and “unless the matter was brought up to the Supreme Court, the old lady would lose her whole estate.” He “ did not state to him, or explain the facts or circumstances which constituted the fraud in the case,” but merely stated that “if the sale was confirmed, we could never get behind the deed to investigate this judgment.” Mr. Hand, regarding the life-estate of a woman of ninety, in land.which brought but $525, as too small an interest to justify protracted and expensive litigation, with no knowledge of .the merits of the alleged defence, declined to use her funds for that purpose; especially as Mr. Smith held a judgment for $1000 against Catherine Hoban, John Dean and wife, and other heirs-at-law of James Hoban, entered on a note given September 2d 1872, for services to be performed in protecting their interests in James Hoban’s estate. But alleging that Catherine Hoban had lost all capacity to contract when this note was given, Mr. Hand moved to open the judgment, and an issue to determine its validity as to her was pending when this appeal was taken.
    In May 1878, Catherine Dean presented a petition, setting out the principal matters relating to the estate of Catherine Hoban, and praying for the removal of Mr. Hand from his office as committee. A rule was accordingly granted. On the hearing, in September following, the depositions of Messrs. Dean, Smith, Seely, Hand and Waller, and the records relating to the case, were read, and after argument the rule was discharged, whereupon this appeal was taken. The appellant assigned for error the refusal of the court to make the rule absolute and to dismiss the committee.
    In February 1879, after the appeal was taken, Catherine Hoban, the lunatic, died.

      Q. Smith, for appellant.
    The committee acted not in the interest of the lunatic, but in the interest of Bridget A. Hoban, and was controlled by her counsel. His employment of the counsel who was prosecuting a fraudulent claim against the estate, his refusal to take any step for the protection of Catherine Hoban’s interests against that judgment, and his petition, on which the monthly allowance for maintenance vras reduced from $50 to $20, and the estate of Patrick Hoban relieved from further payments, exhibit a want of good faith, and show “ a transparent conspiracy to rob a helpless old lady out of her valuable estate, through and under the forms of law.”
    An appeal lies from a refusal to remove the committee. The discretion of the Common Pleas, is a legal discretion to be exercised “ in watching over and providing for those who have been smitten in the seat of reason: Black’s Case, 6 Harris 434. It is subject to review. There is a distinction between, the removal of a committee from an office in which he has no legal interest or estate, and a refusal to remove, which involves the rights of the lunatic and her protection against the unlawful acts of the committee.

      II. Wilson, for appellee.
    The decree of the Common Pleas, removing a committee, is not subject to review: Black’s Case, 6 Harris 434. A power to remove at discretion, not subject to review, implies a like discretionary power to refuse to remove. It is difficult to see on what principle it can be held that an affirmative decision, on an application to remove, is within the discretion of the court, but that a negative decision is not. No sufficient cause for removal has been shown. Mr. Waller had been the committee’s counsel for many years, and his position in representing a judgment prima facie valid, was not such as to make it improper to consult him. Cornelius Smith, Esq., was prosecuting a claim against the lunatic, which the court had pronounced prima facie invalid, yet he assumed to be acting in her behalf. If there was any defence to the alleged fraudulent judgment against James Hoban’s estate, Mr. Smith was already employed as attorney to protect the interests of all concerned, and held a large judgment for his services ; and he and the heirs in remainder were more largely interested in making a defence than Catherine Hoban. No facts were communicated to the commifctee as the ground of defence. The committee, acting in 'good faith in the exercise of a sound discretion, decided that the lunatic’s interest was too small to warrant him in using her money to employ additional counsel and engage in doubtful and expensive litigation.
    The petition of the committee, on assuming office, merely set forth existing facta as he found them] and submitted all questions to the judgment of the court with no specific prayer.
    May 5th 1879,
   The judgment of the Supreme Court was entered,

Per Curiam.

The death of the lunatic, which has been suggested of record, makes the only question in this appeal one of costs. The functions and powers of the committee ceased Avith the life of the lunatic, leaving him liable to account to her administrator ; and to remove him from the trust would now be a merely nugatory decree. He has already been removed by the act of Providence. It was decided in Black’s Case, 6 Harris 434, that the committee of a lunatic was removable by the Court of Common Pleas at their discretion, and their order of removal was not the subject of revieAv in this court. We do not decide that their refusal to make such order may not be reviewed; but we are very clearly of opinion that nothing but a very clear case A\rould justify our intervention. We do not think that such a case was made out here.

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


text:
    Buck versus Commonwealth.
    1. Where a tax collector, under a Avarrant duly issued by a borough council, directing the collection of a tax that had been properly levied by the borough, collects a tax from a person who it was subsequently shown had been improperly assessed by the assessor and county commissioners, he is not criminally liable therefor.
    2. The Act of May 27th 1841 was directed against the voluntary payment and receipt of taxes to evade the election laws, and not against the enforcement of such payment by legal process, and it Avill not support an indictment for the latter charge.
    April 1st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodavard, Trunkey and Sterrett, JJ.
    Error to the Court of Quarter Sessions of Northampton county: Of January Term 1879, No. 89.
    Indictment of Alfred Buck for receiving payment and giving' a receipt for taxes Avhich had not been duly assessed. The indictment was brought under the 8th sect, of the Act of May 27th 1841, Pamph. L. 402. •
    The facts Avere these: Daniel Ritter owned a house in Saucon township, adjoining the borough of South Bethlehem; the house being situated near the line of said borough. Buck was appointed collector of borough taxes, and was instructed by the town council to collect said taxes for 1878, for which he received his warrant and a duplicate drawn by the clerk from the assessment-book. In this duplicate Ritter’s name appeared with a memorandum of the amount charged against him for the house and lot in question. On demand being made for the taxes by the collector, Ritter claimed that he was assessed in Saucon township, and paid his taxes there, and declined to pay. It appeared that the house actually was within the township limits. Buck applied to the town council to be exonerated from the collection of Ritter’s taxes, but they refused his request, and directed him to proceed with his collection, on the ground that the assessment was regular. Snyder, the borough assessor, testified that the county commissioners had directed him to assess Ritter as of the borough, and he was accordingly assessed in the borough-book. Witness had returned his assessment-book to the commissioners’ office without making any note therein of the valuation of Ritter’s property. The town council having refused to exonerate Buck, and Snyder having informed him that Ritter’s assessment was regular and proper, Buck proceeded to levy upon the horse and wagon of Ritter, who thereupon paid the tax. Buck gave a receipt therefor, and released the property seized.
    The defendant submitted the following points, to which is appended the answer of the court, Meyers, P. J. :
    3. There can be no conviction for a crime unless a criminal intent is laid and proven, and if the jury believe that the collector collected the tax' because it was on his duplicate, because he had compared the duplicate with the assessor’s-book, had applied to be exonerated and had been refused, had been shown the borough surveys locating Ritter in the borough, and been instructed by the burgess to proceed with the collection, and that he executed the orders in good faith, there can be no conviction.
    4. If the jury believe that whatever mistake, if any, occurred by reason of the assessor’s returning one book to the commissioners and a different book to the town clerk, from which the duplicate' was drawn, and that the mistake was the assessor’s mistake, there can be no conviction of the collector.
    5. It was not the duty of the borough tax collector to go behind his duplicate, and the assessment-book exhibited to him by the assessor of the borough.
    Answer to 3d, 4th and 5th points. — “ The offence created by the 8th section of the Act of May 27th 1841, consists in the violation of certain provisions thereof by the public officers named therein ; said violation consisting in the commission by said officers of certain acts, which by said section are declared unlawful. • In this case, the defendant was the collector of the borough taxes of the borough of South Bethlehem, and if the jury find from the evidence, beyond a reasonable doubt, that at the time when the defendant demanded and received the tax from Daniel F. Ritter, he, the defendant, was informed by the said Ritter that he resided in the township of Lower Saucon; that he had no property in the borough of South Bethlehem; that he had been assessed for the year 1877 in the township of Lower Saucon, and had paid his taxes there; and if the jury should further find, beyond a reasonable doubt, that the defendant, by his negligence, failed to use reasonable diligence to ascertain the fact whether Daniel F. Ritter had been duly assessed in the borough of South Bethlehem, and return of said assessment had been made to the office of the commissioners of this county, then, if the defendant received said tax under such circumstances, such act constitutes a violation of the provision of the 8th section of the Act of May 27th 1841.”
    The jury returned a verdict of “guilty,” and defendant was sentenced to pay a fine of $100. He then took this writ, assigning for error, inter alia, the foregoing portion of the answer to his points

      W. P. Poster, for plaintiff in error.
    A collector is not liable for acts done in the execution of his precept, apparently regular and emanating from persons having authority over the subject. His warrant is his protection against all illegality .except his own. When the warrant is regular on its face and issued by an authority having lawful power to issue it, the collector cannot inquire into and determine whether the power has been properly exercised: Moore v. Allegheny City, 6 Harris 55; Cunningham v. Mitchell, 17 P. F. Smith 81; Ford v. Clough, 8 Greenleaf 334; Johnson v. Goodridge, 3 Shepley 29; Holden v. Eaton, 8 Pick. 436. The Act of 1841, under which this indictment was framed, relates to offences against the election laws, and will not support the indictment.

      O. M. Anstett, District Attorney, M. J. Pox and S. V. B. Kachline, for defendant in error.
    There was not an assessment and return according to law. The assessment not having been duly returned to the commissioners'was void: McCall v. Lorimer, 4 Watts 351; Wharton v. Borough of Birmingham, 1 Wright 372. When a tax is attempted to be collected without any authority, all who are engaged in the collection are trespassers. Hence, if a collector is aware that a tax is not legally assessed and proceeds to collect it, he makes himself personally liable to an action: Wilson v. Borough of Lewistown, 1 W. & S. 430; School Directors v. Carlisle Bank, 8 Watts 294. The Act of 1841 will sustain the indictment.
    May 7th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

In the case of Moore v. Allegheny City, 6 Harris 55, it was said, by Mr. Justice Bell, that, as an executive officer, a collector is not liable for acts done in the execution of his precept, apparently regular, and emanating from persons having authority over the subject. The ruling in this case is approved in Cunningham v. Mitchell, 17 P. F. Smith 78, and the doctrine, therein stated, reiterated. Now, there is no doubt about the power of the authorities of the borough of South Bethlehem to levy borough taxes, or that their warrant empowered Buck, the defendant below, to collect such taxes. It is also a fact that the property of Daniel Ritter, the prosecutor, had been assessed as lying in the aforesaid borough. The allegation, however, is that the assessment was irregular, in that the property was not embraced within the borough lines, and also because the duplicate, in which the assessment was made, was not returned to the county commissioners. There is no doubt about the correctness of this allegation, but then who was responsible for these mistakes ? Surely not Buck; he had no power to revise what his superiors had done. Whether Ritter’s property lay in the borough, or in Saucon township, could only be determined by a survey which the defendant had no power to make. He did what he could to ascertain the correctness of his duplicate; he had applied to the assessor and was by that officer informed that the assessment w'as correct; he had applied for an exoneration and was refused; there was, therefore, nothing left for him to do but to collect the taxes. It was not his business to revise the assessments or survey the borough lines, but it was his business, as a ministerial officer, to obey the directions of his warrant. The irregularity, in this case, is certainly no greater than that in Cunningham v. Mitchell, where the school directors had assessed a bounty tax, though the township had never agreed to pay bounties. The error, in the present case, originated with the assessor and county commissioners, for Snyder, the assessor, says the commissioners told him to put this assessment in the duplicate of South Bethlehem. Prima facie, then, Ritter’s property was properly assessed in the borough, and though this was afterwards found to be a mistake, it would be out of all character to make the collector liable criminally for the fault of his superiors.

But, again, it was a mistake to suppose 'that an indictment, on a charge such as this, can be supported under the Act of May 27th J841, Pamph. L. 400. The eighth section of that act, the one relied upon to sustain this indictment, is intended to prevent fraudulent voting. On what other hypothesis can the provisions be explained, that no county treasurer, county commissioner, or collector of taxes in any township, ward or district, nor any other person on his or their behalf, shall receive payment, or give any receipt for the payment of taxes that have not been duly assessed, and that neither of the persons above named shall receive payment, or give any receipt for the payment of any taxes, from the payment of which the party assessed has been exonerated according to law, unless the party so exonerated shall himself appear in his own proper person, and tender payment of the taxes from which he has been so exonerated. Now, it is very clear, that all this is directed against the voluntary payment and receipt of taxes, and not against the enforcement of such payment by legal process. And if it is not meant to prevent the use of tax receipts, improperly obtained, as a fictitious qualification for voting, then we know not what it does mean. For why, ordinarily, should one, who has been exonerated, not be permitted to pay his taxes by the hand of another, or why should he not be permitted, voluntarily, to pay a tax irregularly assessed ?

It follows, from either view of the case, as above taken, that the defendant has been convicted without warrant of law.

The sentence of the Court of Quarter Sessions is reversed and set aside, and record remanded.