text:
    Cohen versus Teller.
    1. In an action upon a promissory note it is not competent to show that the defendant was estopped from setting up the defence of forgery to the note in suit, by proving th#,t he had paid other forged notes or recognised them to be valid.
    2. Where the defence was forgery in a suit upon a note, it was competent to show that the endorser recognised the note with its endorsement as valid, and that this fact was communicated to the plaintiff, who bought the note upon the faith of it.
    3. Letter-press copies of letters are not competent to establish a standard for comparison of handwriting. To authorize the admission of a writing offered as a test or standard, nothing short of proof by a person who saw the party write the paper, or of an admission by the party of its genuineness, or evidence of equal authority, is sufficient.
    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. 1, of Philadelphia county: Of July Term 1877, No. 51.
    Assumpsit by August Cohen against Solomon Teller, on a promissory note, drawn by M’. Kuhn & Brother, to tbe order of the defendant and endorsed by him. The defendant alleged that the endorsement was a forgery. Moses Kuhn, one of the partners of Kuhn & Brother, was the son-in-law of defendant. Teller Brothers were in the habit of loaning money to Kuhn & Brother and Solomon Teller, who was the senior member of the firm of Teller Brothers, was on most of the paper of Kuhn & Brother as accommodation endorser. Kuhn & Brother failed in December 1874, and left the city, and a large amount of their paper was on the market with Solomon Teller’s endorsement. Some of these endorsements, although they were declared to be forgeries by Teller, were nevertheless paid by him. The testimony was conflicting in regard to the genuineness of the note in suit which the plaintiff had bought from David Kohn, a note-broker, who had received it from Kuhn & Brother. On behalf of the plaintiff, one Cansler testified as follows : “ David Kohn handed me this note. In consequence of what he told me, I took this one and a second note to defendant, Teller Brothers. I asked to see defendant. He came out. I handed him these two notes. I asked him to discount them. We were near each other. He said he had no funds at present, but might at a future time take them. I then retired. I returned to David Kohn. I handed him hack the notes. I repeated to David Kohn what defendant had told me. Defendant stood when I handed him this and the other note first outside of his inner office, in part of the store. I handed them both to him. He had them in his hand. He looked at them, and then said what I have stated. Defendant looked at his handwriting to the best of my knowledge.”

      Defendant moved to strike out of the answer of the witness that he “repeated to David Kohn what defendant told him.” The court struck out the evidence. (First assignment of error.)
    The plaintiff recalled David Kohn, and offered to show that after Cansler returned, the latter stated to witness what had passed between defendant and Cansler, as just testified to by Cansler, and that in consequence of this report from Cansler, the witness told plaintiff, before plaintiff bought the note, that there was no doubt about the genuineness of the endorsement. Objected to by defendant. Overruled. (Second assignment of error.)
    Also, to prove by the same witness, that Cansler returned with the notes, and reported the conversation to the witness which he had with the defendant, as testified to by Cansler, and that two or three days afterwards the witness offered the note sued on to plaintiff to purchase it. The plaintiff asked whether it was an accommodation or merchandise note, as plaintiff did not like accommodation paper, and preferred merchandise paper. That the witness told plaintiff it was an accommodation note, but was perfectly safe, as defendant had told a friend of the witness, who went up and showed defendant the endorsement (meaning Cansler), that he, the defendant, said he would buy it, but had no money just then. To be followed by proof that the plaintiff, on the faith of that, bought the note. Defendant objected. Offer overruled. (Third assignment of error.)
    The plaintiff then proposed to ask this same witness, “ Had you, or not, any conversation with defendant in the summer of 1874, as to his endorsement?” Objected to. Objection overruled. (Fourth assignment of error.)
    The defendant offered in evidence, as test signatures, three letter-press copies of letters signed by defendant, dated July 2d 1874, August 10th 1874, and September 5th 1874. Objected to, and objection overruled and evidence admitted, (Fourteenth assignment of error.)
    In the general charge, the court, Peirce, J., inter alia, said: “ Urged by duty to himself, to society, and to the law, on one hand, and, on the other hand, urged by considerations of family interest, and the protection of those who are dearer to him than his own life, defendant may have committed acts of embarrassment, he may have halted and hesitated, and may, in consequence, have assumed responsibilities and become liable to others. We must look at these matters tenderly and mercifully, and not with too sharp a judgment.
    “ A forgery is a dreadful crime; it is a blow struck at the very well-being of society; it, and its kindred crime of perjury, are alike infamous in their character; they are blows struck, sometimes at the life of men, sometimes at their good name and character, and sometimes at their estates and fortunes, and in the presence of these foul crimes no man is safe, either in life, reputation or estate; therefore, before you give validity to a document which is alleged to have been forged, you should carefully deliberate, and substantially and well satisfy your minds that it is a genuine endorsement; for, if you find this endorsement a forgery, and Solomon Teller is not estopped from showing that it is a forgery, every man in the community has an interest in your saying that it is a forgery, for it is to the interest of every community that no forgery should prevail. If encouragement be given to perpetrators and circulators of forgeries, no man’s estate would be safe, nor would his life be without jeopardy, nor his good name worth preserving.”
    These two portions of the charge constituted the fortieth and forty-first assignments of error.
    The verdict was for defendant, and after judgment thereon the plaintiff took this writ, alleging, inter alia, that the court erred as set forth in the above assignments of error.

      Francis E. Brewster and F. Carroll Brewster, for plaintiff in error.
    It is submitted, that by inconsistent rulings, while the plaintiff was allowed to prove what the broker told him, he was not allowed to support this by the testimony of the broker. He thus stood before the jury upon this important branch of the case uncorroborated by the other party to the conversation. The injustice of this more strikingly appears when it is remembered that upon this branch of the case the defendant attempted to contradict Cansler. The plaintiff contends that there was error in ruling out his offer to show that David Kohn had repeated to plaintiff the defendant’s admissions. Unless these admissions were the operating cause with the plaintiff in the purchase of the note, there was no room in the case for the doctrine of estoppel. If it were competent to prove by the plaintiff that David Kohn told him this, why was it not competent to show the same thing by David Kohn? For these reasons it is submitted that there was error in striking out of Cansler’s testimony the statement that he repeated to David Kohn the defendant’s admissions as to the note in suit. This was part of the res gestee.

    The defendant, according to the theory of his defence, knew for months that his name was being forged to negotiable paper. He made no effort during all this time to acquaint himself with the true state of affairs, and when at length large amounts of this paper were brought to his immediate notice, he commits himself in some cases, in others he eludes inquiry by evasive answers, and in all he quietly stands by and allows innocent parties to buy this forged paper. He is estopped by his own acts: Pickard v. Sears, 6 Ad. & E. 469; Freeman v. Cooke, 2 Exch. 654; McMahon v. McMahan, 1 Harris 380; Waters’s Appeal, 11 Casey 523; Reel
      v. Elder, 12 P. F. Smith 308; Smith v. McNeal, 18 Id. 164; Niven v. Belknap, 2 Johns. 589; Gregg v. Von Phul, 1 Wall. 280; Chapman v. Chapman, 9 P. F. Smith 218; Meason v. Kaine, 17 Id. 132. The silence of a party to whom a note purporting to be signed by him was shown, with a request to pay it, 'is competent evidence that his signature is genuine, or if not genuine, of his assent to be bound by it: Corser v. Paul, 41 N. H. 24 ; Greenfield Bank v. Crafts, 2 Allen 269. See Starkie on Evidence, 9th edition (note), star page 51; Casco Bank v. Keene, 53 Maine 103 ; Hefner v. Dawson, 63 Ill. 403; 14 American Rep. 123. The jury were instructed by the court to look at the defendant’s conduct “tenderly and mercifully.” Such language from the court was undoubtedly calculated to enlist the sympathies of the jury in favor of the defendant and control its deliberations adversely to plaintiff’s interest: Mohney v. Evans, 1 P. F. Smith 80; Burke v. Maxwell, 31 Id. 153. The court, in stating their opinion, based upon a confession of handwriting, withdrew from the jury the duty which belonged appropriately to them, as laid down in Bank v. Whitehill, 10 S. & R. 110; Lodge v. Phipher, 11 Id. 334; Baker v. Haines, 6 Whart. 284; Travis v. Brown, 7 Wright 9; Haycock v. Greup, 7 P. F. Smith 438; Aumick v. Mitchell, 1 Norris 211.

      Samuel Dickson, John C. Bullitt and Moses A. Dropsie, for defendant in error.
    The part of Cansler’s testimony that was stricken out Was inadmissible, because it was a communication made in the absence of the defendant, who was to be affected by it, and the witness could not testify by wholesale but should have repeated the language used, so that the jury could judge whether he had correctly repeated it. The striking out of evidence is a matter for the court only, as the jury must be instructed to disregard incompetent testimony, if once admitted: Yeager v. Weaver, 14 P. F. Smith 425. The objection to the letters was that they were copies. A copy is a transcript, imitation, or representation of the original, and in a loose sense the impression taken from types is said to be a copy, but strictly speaking, an impression taken, from one’s writing is not a copy, as it is neither a transcript, imitation or representation, but is the same as or identical with the original, being produced from it.
    The court correctly enunciated the lav of estoppel as enunciated by Bigelow on Estoppel 485, and in Commonwealth v. Moltz, 10 Barr 527. The defendant could not be estopped by anything said to Cansler unless notice was in some way brought to him that Cansler was about to act upon the faith of his declaration: Bigelow 485, 491; Hackett v. Callender, 32 Vt. 97; Morgan v. Spangler, 14 Ohio 102; Danforth v. Adams, 29 Conn. 107; Taylor v. Ely, 25 Id. 250. The court ruled the law against the defendant, and the.plaintiff failed to prove that the defendant ever saw or spoke to Cansler. In such a state of evidence the only maxim necessary is cadit qucestio.

   Mr. Justice Paxson

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

There are forty-three assignments of error in this case. I have examined them all patiently and laboriously. To discuss them in detail would extend this opinion to an unreasonable length. Nor is it necessary. While the record abounds in exceptions, many of the errors assigned have been cured by the subsequent rulings of the court; evidence improperly excluded having been afterwards admitted, and evidence improperly admitted subsequently stricken out.

The suit below was an action of assumpsit, brought by August Cohen, the plaintiff, against Solomon Teller, the defendant, as endorser of a promissory note made by the firm of M. Kuhn & Co.; one of the makers was a son-in-law of the defendant. The latter alleged that his signature as endorser was a forgery. The case went to the jury upon this issue.

The record is voluminous and not very clear. This was perhaps due in part to the fact that some, matters not pertinent to the issue wore allowed to be introduced upon the trial, the consideration of which occupied much time, and may have misled the jury. The force of this observation will be the more readily understood when the fact is stated that the trial in the court below upon the single issue of forgery occupied nearly one month. The contention of the plaintiff was that even if the endorsement was a forgery, yet the defendant was estopped by his acts and declarations from setting up the forgery as a defence. Instead of confining the case to the particular note in suit, evidence was offered and admitted to show that a large amount of similar forged paper had been issued, which, it was contended, the defendant had recognised or paid. All of this evidence should have been excluded; the only effect of it was to consume time, and confuse if not mislead the jury. It was not competent to show that the defendant was estopped from sotting up the defence of forgery to the note in suit by proving that he had paid other forged notes, or recognised them as valid. It would be a harsh rule to hold that a man who had paid one or more forged notes to save the honor of the makers, thereby rendered himself liable upon all other forged paper which the makers may have issued. As the case must go back for another trial, we deem it proper to make this reference.

We will now consider such of the assignments of error as require notice. The first, second and third allege the court erred in excluding the evidence tending to show that defendant’s admissions in regard to the note in suit had been communicated to the plaintiff. The ground of the alleged estoppel was that the defendant had recognised the note with its endorsement as valid; that this fact had been communicated to the plaintiff, who bought the note upon the faith of it. The learned court subsequently permitted the plaintiff to testify that the witness David ICohn had told him what had been said by Cansler as to the defendant’s admissions, and to this extent the error was cured. But if it was competent to prove this by the plaintiff, it was also competent to prove it by Kohn, and the exclusion of his testimony upon this point deprived the plaintiff of the benefit of Kohn’s corroboration.

The fourteenth assignment is sustained. The letter-press copies of defendant’s letters were not competent evidence to establish a standard. When a writing is introduced as a standard to enable a jury to make a comparison of handwriting, the standard itself must not be open to dispute. It must either be admitted to be genuine or established in the cause. To authorize the admission of a writing offered as a test or standard, nothing short of proof by a person who saw the party write the paper, or of an admission by the party of its genuineness, or evidence of equal authority, is sufficient: Baker v. Haines, 6 Whart. 284; Depue v. Place, 7 Barr 428 ; Travis v. Brown, 7 Wright 9. Here there was merely a copy — a press copy, it is true — of the nature of a fac simile, but not necessarily exact, as the spreading of the ink in such copies often obliterates the fine lines of a handwriting, though substantially preserving its original form. It is manifest such copies would be an unsafe standard. I know of no authority for their introduction, and upon principle they are inadmissible. It is difficult to see why this evidence was introduced, as a reliable standard had previously been given in evidence.

The portions of the charge embraced in the fortieth and forty-first assignments, considered alone, are not free from criticism, but when read in connection with the whole charge, of which they form a part, are not seriously objectionable, at least, not to the extent of justifying a reversal. But the case must go back for the other reasons above stated. The remaining thirty-seven assignments do not require discussion.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Olive Cemetery Co. versus City of Philadelphia, to use, &c.
    The charter of a cemetery company contained the following clause : “ That no street, lane or road shall hereafter be opened through the said tract occupied as a cemetery without the consent of a majority of the lot-holders ; and the samo, when used as a place of sepulchre, shall be exempt from taxation, excepting for state purposes.” A sewer was constructed on a street along the line of which were a number of these burial lots, and an assessment was charged against said lots to defray, in part, the cost of the sewer. In a suit to recover this assessment, held, that the assessment was a species of local taxation and within the exemption clause of the charter, and that tlie lot-holders were not liable.
    February 3d 1880.
    Before Sharswood, O. 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 1878, No. 41.
    Case stated wherein the City of Philadelphia, to the use, &c., was plaintiff, and the Olive Cemetery Company defendant. The case as stated disclosed the following facts: That the Cemetery Company was incorporated by the Act of the oth of February 1849, the third section of which provided as follows:
    “ That no street, lane or road shall hereafter bo opened through the said tract occupied as a cemetery, without the consent of a majority of the lot-holders; and the same, when used as a place of sepulchre, shall be exempt from taxation, excepting for state purposes; and no lot which may be purchased as a place of sepulchre shall be subject to attachment or execution for any debt or debts of the owner thereof; provided, that said exemption from attachment or execution shall not extend to more than four lots as owned by any one individual.”
    On the line of Merion avenue all of the lots in the cemetery were sold, and are mostly improved and interments made therein. In said avenue the equitable plaintiff has constructed a sewer, extending from Girard avenue to Wyalusing avenue; and has filed a lien therefor covering the whole extent of the cemetery. The lot-holders on the line of Merion avenue had no notice of the construction of this sewer, nor notice of the filing of the claim therefor. No deeds of the lot-holders have been registered in the registry bureau of the department of surveys of the city of Philadelphia, nor have they been recorded in the office for recording deeds for the city and county of Philadelphia.
    If the court be of opinion, that under the said charter the lots purchased by the lot-holders for burial purposes, and lands of the cemetery company are subject to lien and sale under the said lien, or that the lot-holders’ consent, or notice to them, was not necessary before filing the lien, then judgment for the plaintiff; but if not, then judgment for the defendant.
    The court, without filing an opinion, entered judgment for the plaintiff, when defendant took this writ, and alleged that the court erred in entering judgment.

      John A. Burton and Benjamin Harris Brewster, for plaintiff in error.
    Municipal assessments are taxes, and derive their validity from the constitutional power of the legislature to levy and collect taxes, delegated to the municipality by the legislature. There can be found no other power but this which clothes the legislature with authority to levy and collect these assessments for local purposes, and such assessments are taxes by whatever name called: Pennock v. Hoover, 5 Rawle 291; Pennel’s Appeal, 2 Barr 216; Hammett v. City of Philadelphia, 15 P. F. Smith 164; People v. City of Brooklyn, 4 Comst. 419-438; Washington Avenue, 19 P. F. Smith 352.
    And this power of taxation for local purposes is restricted to the benefit to be derived by the property assessed, and to the extent of that benefit: Washington Avenue, supra; Hammett v. Philadelphia, supra; People v. City of Brooklyn, supra.

    But, it may be alleged, the legislature did not mean to exempt from all taxation, when they said “taxations, except state taxes.” To t-his, it is answered: It is a well-settled rule that an exception in a statute excludes all other exceptions: Miller v. Kirkpatrick, 5 Casey 226; Warfield v. Fox, 3 P. F. Smith 383.

      Henry C. Terry, for defendant in error.
    The assessment for' the construction of this sewer is not a ta.x within the meaning of the plaintiff’s charter: Pray v. Northern Liberties, 7 Casey 69; Northern Liberties v. Church, 1 Harris 104; Borough of Greensburg v. Young, 3 P. F. Smith 284; Sharp v. Spier, 4 Hill 82; In re Mayor of New York, 11 Johns. 77; Bleeker v. Ballou, 3 Wend. 263.
   Mr. Justice Sterrett

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

The Olive Cemetery Company was incorporated by Act of February 5th 1849, for the purpose of establishing and maintaining a cemetery on a certain tract of land situated on the north side of Lancaster avenue, in the county, now city of Philadelphia, containing about ten acres and twenty-two perches. The third section of the act declares, “ That no street, lane or road shall hereafter be opened through the said tract occupied as a cemetery, without the consent of a majority of the lot-holders; and the same, when used as a place of sepulchre, shall be exempt from taxation, excepting for state purposes ; and no lot which may be purchased as a place of sepulchre, shall be subject to attachment or execution for any debt or debts of the owners thereof; provided, that the said exemption from attachment or execution shall not extend to m-ore than four lots as owned by any one individual.”

On the line of Merion avenue, by which the cemetery is hounded on one side, all the lots have been sold and mostly used for burial purposes. In that avenue the corporate authorities of the city caused a sewer to be constructed, and filed a lien for a proportionate part of the cost thereof against the entire cemetery tract, including the lots that have been sold, and claim the right to enforce payment thereof by sale of the land. The facts are fully presented in the case stated in the nature of a special verdict, and the questions of law involved submitted to the court below in the following terms: “ If the court shall he of opinion that, under the said charter, the lots purchased by the lot-holders for burial purposes, and the lands of the cemetery company, arc subject to lion and sale under said lien; or that the lot-holders’ consent or notice to them was not necessary before filing the lien, then judgment for the plaintiff'; but if not, then judgment for the defendant.” The court entered judgment, on the case stated, in favor of the city.

The main contention on the part of the cemetery company is, that the assessment for construction of the sower on Merion avenue is a species of taxation, and clearly within the letter as well as the spirit of the exemption contained in the charter. The exemption is from taxation excepting for state purposes.” The obvious meaning of this is that the Commonwealth releases, in favor of the cemetery company, her right to tax its land,when used as a place of sepulchre, in any form or for any purpose of a local nature, as distinguished from general state purposes; reserving to herself the right of taxation for the latter purposes only. The exemption is general, and embraces every species of taxation not specifically excepted; and the rule is well settled, that an exception in a statute excludes all other exceptions: Miller v. Kirkpatrick, 5 Casey 226. It is not pretended that municipal assessments for constructing sewers, &c., are within the accepted meaning of taxation for state purposes; on the contrary, it is contended by the city, that they do not come under the head of taxation at all. It is conceded, however, that the authority to make and collect such assessments is delegated by the Commonwealth. If it does not emanate from the inherent powers of the government to levy and collect taxes it is difficult to understand whence it cornos. The only warrant for delegating such authority must he either in the right of eminent domain or in the taxing power. It cannot be found in the former, and hence it must he in the latter.

Taxation is the exercise of the inherent powers of government to compel contributions from persons and property for public purposes, either of a general or local nature. Eor general or state purposes, the power of taxation has usually been exercised directly by the government, while for local objects it has generally been delegated to and exercised by the municipal subdivisions of the state. The history and growth of this delegated power are traced in Washington Avenue, 19 P. F. Smith 352. It is there said that “the practice of municipal taxation by counties, townships, cities and boroughs for local objects had its origin in necessity and convenience. Hence, roads, bridges, culverts, sewers, pavements, school-houses and like local improvements are best made through the municipal divisions of the state and paid for by local taxation. These have always been supported as a proper exercise of the taxing power. * * * In cities and towns where the population was dense, the authorities began to make improvements of special advantage to certain of the citizens at their expense. * * * So far, public opinion and long continued legislative practice have sustained local taxation with great unanimity, and this is strong evidence of the true interpretation of the constitutional power of the legislature to authorize municipal taxation of this sort.” In McMasters v. Commonwealth, 3 Watts 292, a new phase of taxation was presented in the assessment of one person’s property to pay compensation awarded to another whose property had been taken for a public use under the power of eminent domain ; but it was sustained as a proper application of that principle of local taxation which authorizes the assessment of property specially benefited by a local improvement of a public nature, for the purpose of defraying the expense thereof. The admitted authority of the legislature to confer upon municipal corporations the power of assessing the cost of local improvements on properties benefited, is recognised in Hammett v. Philadelphia, 15 P. F. Smith 146, as “ a species of taxation ; not the taking of private property by virtue of eminent domain.” We have thus referred to these cases not for the purpose of vindicating the right of the legislature to authorize assessments in various forms for local improvements, but to show that they are regarded as a species of' taxation ; that it is only on the principle of taxation that they are sustained. The cases of Northern Liberties v. Church, 1 Harris 104, Pray v. Northern Liberties, 7 Casey 69, and Borough of Greensburg v. Young, 3 P. F. Smith 280, have been cited as authority for the position that assessments for local improvements are not taxes. What is said in Washington Avenue, supra, in regard to two of these cases is equally applicable to the other viz. : the court did not mean to decide that such an assessment is not taxation within the general legislative power to tax. Had it been meant to say that such an assessment is not taxation at all, it would, in effect, deny the power of die legislature to authorize the assessment — a power which was affirmed in all these eases.

It follows from what has been said, that the claim of the city is a species of taxation for local and not state purposes, based solely on the taxing power delegated by the state, and inasmuch as the charter of the company expressly exempts its land from such taxation, the lien is invalid and the plaintiff in error is entitled to judgment.

If it were at all necessary, it would be an easy task to show the wisdom and propriety of exempting such property as that of the plaintiff in error from local taxation, hut nothing of that kind is required. It is sufficient to know that the legislature, in creating the corporation, exempted its property from such taxation. It is unnecessary to consider other minor points involved in the case stated.

Judgment reversed; and judgment is now entered on the case stated in favor of the defendant below.


author: Per Curiam.

text:
    Ralston’s Appeal.
    1. There is no authority for a sheriff in this state to depute a sheriff in another state to execute a writ in the bailiwick of the latter, so as to give it the effect of a personal service. A service thus made cannot give the court in this state jurisdiction of the person of a respondent, so as to decree a divorce.
    2. The language “wherever found,” in the Act of March 13th 1815, cannot be so construed as to give to a court of this state extra-territorial power to bring within its jurisdiction the person of a citizen and resident of another state.
    3. A husband cannot obtain a divorce from his wife on the ground of desertion, although she has separated herself from him for over two years, where it appears, that during that period, he remitted an allowance to her.
    February 4th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1880, No. 131.
    Libel in divorce, a vinculo matrimonii, filed by Robert S. Ralston against his wife, Mary N. Ralston. The libel charged the respondent with desertion. The subpoena, libel, interrogatories and notice of the meeting before the examiner were all served personally on the respondent, who entered no appearance, filed no answer, and did not attend before the examiner. The evidence showed that after the marriage, which took place in Wilmington, Delaware, in 1865, the respondent had continued to reside in Wilmington with her mother. Libellant, who was an officer in the U. S. Revenue Marine Service, and necessarily absent on shipboard the greater portion of the time, resided with her whenever he was on shore. In 1870, libellant was mustered out of the revenue service, and was for some two years without any permanent employment. He then entered the employ of the Philadelphia & Reading Railroad Co., and is still in their employ. When first employed by the railroad company, his duties permitted him frequently to visit his wife in Wilmington, and he consequently spent most if not every Saturday and Sunday with her. Subsequently his duties became such as to prevent him from absenting himself from his office excepting at rare intervals. The respondent, when spoken to by him on the subject, frequently expressed her determination of never coming to Philadelphia to live. During this time the libellant made his-home in Philadelphia with his mother. In March 1876, libellant’s mother died, and on the occasion of her funeral he informed respondent that he wanted her to come to Philadelphia to reside, stating that he would take a house for her and go to house-keeping, or would take board if she preferred it. To this arrangement respondent then consented, but when some two or three weeks afterwards, libellant visited her in Wilmington, she positively refused to either leave her mother or to remove her mother to Philadelphia with her. Since that refusal there has been no further intercourse between the parties, except that libellant has regularly remitted an allowance of $40 a month to the respondent for her support.
    After the examiner’s report was filed, a rule was taken to show cause why a divorce should not be decreed. This rule and a copy of the examiner’s report were also duly served upon the respondent. Of these no notice was taken by her, and an ex parte argument on the rule was held before the court, Biddle, J., after which the court below discharged the rule, in an opinion, saying:
    “ That the domicile of the husband is not by implication that of the wife when the purpose is to, destroy her maritial rights was decided in Bishop v. Bishop, 6 Casey 416; Colvin v. Reed, 5 P. F. Smith 375; Reel v. Elder, 12 Id. 308. And that although the law of the place of the actual bona fide domicile of the parties gives jurisdiction to the proper courts to decree a divorce, it means the domicile of both parties. And that nothing but the possession of the person of the wife before or at the time of the proceeding can warrant another state to subject her to its jurisdiction. The injured party must seek redress in the forum of the defendant, unless the defendant has removed from what was before the common domicile of both.
    “ The case here is almost identical with that of Colvin v. Reed. The husband and wife residing in Wilmington, Delaware; he gets employment in Philadelphia, and finds his return to his home irksome and inconvenient. He asks his wife to accompany him to Philadelphia to live, and she replies that she cannot leave her mother. At the end of two years, without further communication, he asks to be divorced here, on the ground of wilful and malicious desertion on her part. As ho had never previously provided a home for his wife, hut had lived with her at her mother’s, he had placed his wife under obligations to her mother, in addition to those which a child naturally owes to a parent. It certainly was natural, therefore, that she should at least hesitate to obey his first summons. His first summons, however, appears to have been his last, for he does not pretend that he ever repeated the request. It is rather stretching a point therefore, we think, to hold that this was persisting in her desertion for two years, even if we brought ourselves to the belief that it was wilful and malicious in its inception. The complainant by his own oath makes out a technical demand and refusal, with two years’ absence, sending funds to his wife in the meanwhile, and then in a jurisdiction foreign to their only joint domicile, which he has left, applies for a divorce from his wife. In questions of divorce a case technically made out is not one which recommends itself to our favorable consideration. Husbands who are too willing to have their iniquities made manifest, and wives who acquiesce with such cheerfulness in their misfortunes as to supply all the necessary evidence to establish them, generally fail to convince us that, in the words of the Act of 1815, ‘ the application is not made out of levity, or collusion, or from the mere purpose of being separated from each other.’ If the husband was wilfully and maliciously deserted here, he certainly has borne it with wonderful philosophy and patience. We think, therefore, that even if we had jurisdiction over the person of the wife, the evidence here presented would fail to satisfy us of her wilful, malicious desertion, without adequate cause, for the space of two years from her husband. But as the wife has never resided within our jurisdiction, we think, in conformity to the cases we have cited, the motion should be discharged.”
    The libellant took this appeal, and alleged that the court erred in this action.

      James L. Ferrier, for appellant.
    The reasonable cause which justifies a wife’s desertion and abandonment of' her husband, must be such as to entitle her to a divorce: Eshbach v. Eshbach, 11 Harris 345; Angier v. Angier, 13 P. F. Smith 450.
    The provision of the Act of 13 March 1815, sect. 2 and 3, Purd. Dig. 510, pl. 12 and 13, providing for proceedings in divorce suits, all contemplate, that the residence of the respondent need not be within the limits of this Commonwealth, in order to give the courts jurisdiction. The practice of our courts in authorizing service outside of the Commonwealth, in such cases has the sanction of forty years duration, and has received the approval of the learned judge himself, who delivered the opinion of the court below: Snyder v. Snyder, 10 Phila. 306; Harvey v. Harvey, 2 W. N. C. 225; Hollister v. Hollister, 6 Barr 452.

      By the Acts of April 26th 1850. sect. 6, Purd. Dig. 509, pl. 6, and of April 22d 1858, Id. 510, pl, 10, if either a husband or a wife is guilty of desertion or adultery, no matter where the parties are domiciled, and afterwards the innocent party removes to this state, and by a residence of one year evinces his or her intention of becoming a bona fide citizen or resident of this state, the courts of this state shall have jurisdiction to grant such a party a divorce, without any regard to the domicile or residence of the other party, upon due proof of the charge set forth in the libel. The acts, by their provisions, that the applicant in such cases must be a citizen of this Commonwealth, or a resident therein for one year, contemplate, that the respondent might be a resident or citizen of some other country or state.
    Ro paper book nor counsel contra.

   The judgment of the Supreme Court was entered February 16th 1880,

Per Curiam.

We know no authority for a sheriff in this state to depute a sheriff in another state to execute a writ in the bailiwick of the latter, so as to give to it the effect of a personal service. A service thus made, cannot have the effect of a legal service made within this state: Coleman’s Appeal, 25 P. F. Smith 441.

It was by such an invalid service, the appellant claims to have brought the appellee within the jurisdiction of the court; and then, mostly on his own evidence, and without any appearance of the appellee, he sought to procure a decree of divorce. This cannot be done. Still further, an examination of the evidence shows, the court was right in refusing the decree prayed for oh the merits of the case. During all the time the appellee was separated from her husband, his evidence shows that he made her an allowance, and remitted her not less than $40 a month. This fails to establish that wilful and malicious desertion and absence contemplated bv the Act of Assembly.

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

A motion was subsequently made for a re-argument, which the court refused in an opinion as follows, delivered March 29th 1880, by Merour, J.

In this application for a re-argument it is assumed that we did not give due weight to the Act of 13th March 1815, under which the appellant claims to have made a service. It declares “ upon due proof at the return of the said subpoena that the same shall have been served personally on the said party wherever found, or that a copy had been given to him or her fifteen days before the return of the same,” a divorce may be decreed. It is contended in case the libellee in divorce is not found within the bailiwick of the sheriff, the latter may, under this act, depute some person to make the service in another state. If a legal service could thus be made in Delaware it can be in California. Such cannot be a true construction of the statute. The language “wherever found” cannot be so construed as to give to a court of this state extraterritorial power to bring within its jurisdiction the person of a citizen and resident of another state. The property found within this state of a non-resident may be reached and charged and sold in the enforcement of a debt resting on a contract without any personal service on the debtor. In the case of an ordinary debt the person of a non-resident defendant not found within the state cannot be reached by any process issued by a court of common law. In cases where the language of the statute would seem to give extra-territorial power this court has denied its exercise. Thus the 16th section of the Act of 13th June 1836, relating to the removal of paupers, authorizes them to be removed “ at the expense of the district to the city, district or place where he was last legally settled, whether in or out of Pennsylvania.” It has, however, been held the provision for a removal into another state is of no force or effect: Overseers of Limestone v. Overseers of Chilisquaque, 6 Norris 294. The first section of the Act of 6th April 1859, authorizes any court of this Commonwealth having equity jurisdiction, in any suit in equity instituted therein concerning property within the jurisdiction of the said court, to order and direct that any subpoena or other process to be had in such suit be served on any defendant therein “ then residing or being out of the jurisdiction of said court wherever he, she or they may reside or be found.” It further provides for the proof of service both within and without the limits of the United States. It was held in Coleman’s Appeal, 25 P. F. Smith 442, that process thus issued in this state and served in another state on a resident thereof could not give jurisdiction of the person thus served. The Act of 1815 is less explicit than the two we have cited of an intention to extend the jurisdiction of a state official or tribunal beyond the limits of our state. The service of a subpoena in divorce thus made in another state on a resident thereof for the purpose of giving jurisdiction of his person is not authorized by any law. If any such practice has prevailed it is a vicious one and should be abolished. The motion for a re-argument is denied.


author: Mr. Justice Paxson

text:
    Potts versus Aechternacht.
    1. A usage which is to govern a question of right should he so certain, uniform and notorious, as probably to be known to and understood by the parties as entering into their contract.
    2. Where a custom exists, it is to be presumed parties deal in view of it, and where no agreement is made as to commissions, that they agree to pay the customary rate. In the absence of such custom and of any agreement as to rate, the measure of compensation would be the value of the services rendered.
    3. The testimony in support of a customary rate of commissions paid to brokers for the sale of collieries varied from five to twenty-five per cent. The court was asked to charge that there was no evidence of a fixed rate of commissions, and that a just compensation for services rendei'ed was all that could be recovered, which was refused. Meld, that this was error.
    4. In a suit by a broker to recover commissions for the sale of a colliex-y, a broker whose business was the sale of real estate in Philadelphia, and who, by his own testimony had no experience, and knew of no sales or commissions paid on sales of collieries, is not competent as an expert in said suit.
    February 5th 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 1878, No. 212.
    Assumpsit by Henry A. Aeehternacht against George C. Potts to recover commissions for the sale of a colliery. The defendant pleaded the general issue. (The case originated in the old Supreme Court at Nisi Prius, and was transferred to Common Pleas, No. 3.)
    The defendant owned a colliery in Schuylkill county, which was for sale. The plaintiff met him in the streets of Pottsville in October 1868, and Aeehternacht alleged then employed him to sell the colliery. No arrangement was made as to compensation. Aeehternacht was then employed in the coal commission business in New York, and was selling coal for R. B. Wigton. Plaintiff alleged that by the management of one Wadleigh, another broker, who acted at the suggestion of plaintiff, the property was sold to R. H. Powell and R. B. Wigton, for $65,000, which was after-wards reduced to $45,000. Powell paid Wadleigh $666.66 as commission. Plaintiff disclaimed of record “ any claim for compensation effecting the sale other than the ordinary commissions for the sale of a colliery.”
    William L. Williams, called for the plaintiff, testified that he was a dealer in coal, and had been a coal operator. Was familiar with sales of collieries. “ Commissions generally were from twelve to twenty-five per cent., sometimes ten per cent.” On cross-examination he testified: “ I never knew twenty-five per cent, commissions to be paid of my own knowledge, Have heard of sales at fifteen per cent. Sold one of my own through an agent and paid him sixteen per cent, commission. Am selling one now at a commission of ten per cent.”
    J. M. Wadleigh also testified for plaintiff: “ Five per cent, was a low commission at that time. As business was transacted at that time ten per cent, was an ordinary commission. I am familiar with the sales of that kind of property in Schuylkill county.”
    Lewis H. Redner, called by defendant, testified : “ Have been a real estate broker and conveyancer for over twenty years. Have conducted sales. I am familiar with customary commissions on large sales of real estate in 1868 — 9.”
    And being cross-examined by plaintiff, further testified: “ I have had no experience in the sale of collieries, but have had in loaning moneys on collieries. Know of no sales or commissions paid on sales of collieries.”
    Defendant then offered to ask the witness the following question : “ What was the customary commission upon the sales of real estate in the years 1868 and 1869, involving the sum of $65,000 or thereabouts?”
    To which plaintiff objected, and the court sustained the objection and rejected the evidence.
    Defendant then offered to ask the witness the following question : “ What would be a suitable compensation for the sale of real estate involving the sum of $65,000 or thereabouts, in the years 1868 or 1869 ?”
    To which plaintiff objected, and cross-examined the witness, who testified: “ I had no experience in 1868 or 1869 in the sale of coal lands or collieries in Schuylkill county. I had charge of a colliery in Centre county in 1868.” Objection sustained.
    Among the points submitted by defendant was the following, with the answer of the court thereto:
    6. As no definite rate of commission is alleged to have been promised, and there is no evidence of any fixed rate of commission for the sale of collieries, in no event can the plaintiff recover more than just compensation for the services rendered (if any) by him to the defendant.
    Ans. “Refused, in view of Mr. Wadleigh’s testimony that ten per cent, was the ordinary rate of commission in 1868.”
    Verdict for plaintiff for $2565.23 ; and after judgment thereon, defendant took this writ, and alleged that the court erred in rejecting the evidence of Mr. Redner, and in the answer to the sixth point.

      Charles Henry Jones and Wayne McVeagh, for plaintiff in error.
    The custom set up by plaintiff should be so well known and so long persisted in, that the law can presume it was in view of Mr. Potts, when, as is alleged, he employed Aechternacht to make this sale, otherwise plaintiff cannot avail himself of it: McMasters v. Pennsylvania Railroad Co., 19 P. F. Smith 374; 2 Pars. on Cont., *544. It can not be proved by single isolated instances : Cope v. Dodd, 1 Harris 37. It must not be fluctuating: Lawrence v. McGregor, Wright’s Ch. (Ohio) 193. _ “A legal usage is a thing which it is not easy to establish:” Justice Baldwin, in Wilcocks v. Phillips’ Executors, 1 Wall., Jr. 65.
    At any rate the testimony in this ease was not sufficient tó establish a customary commission good in the law. It lacked the two essential elements of certainty and uniformity. In no two instances were the rates named the same. Five, ten, twelve, fifteen, sixteen and twenty-five per cent, were all mentioned by these two witnesses. It lacked also the essential element of reasonableness, as any one of these sums was too large on such large amounts for the services rendered.
    It was error to reject the testimony of Mr. Redner. He testified that he had been a real estate broker for tweDty years. Had conducted sales and was familiar with customary commissions on large sales of real estate in 1868 and 1869. Had loaned money on collieries, and had had charge of a colliery in. Centre county in 1868. The contract of sale in this case was made in Philadelphia. Both purchasers resided there, and it was stipulated that the payments should be made in Philadelphia. If there was any custom as to the rate of compensation of the broker who effected the sale, it was the custom prevailing here which should have governed, and Mr. Redner established his competency to prove it.

      S. S. Hollingsworth and F. W. Hughes, for defendant in error.
    A usage does not require the same character of evidence to support it as a technical custom. The distinction is clearly stated in Juggomohan Ghose v. Mauchchund, 7 Moore’s Indian Appeals. It is there said, “ to support a mercantile usage there needs not the antiquity, the uniformity, or the notoriety of custom, which, in respect of all these, becomes a local law. The usage may be still in course of growth. It may require evidence for its support in each case, but in the result it is enough if it appear to be so well known and acquiesced in that it may reasonably be presumed to have been an incident tacitly imported by the parties into the contract.”
    The same distinction is made by Lord Ellenborough, in Legh v. Hewitt, 4 East 155-9, and by Mr. Justice Mercur, in Carter v. Coal Company, 27 P. F. Smith 290-1.
    In Shephard v. Payne, 104 Eng. Com. Law Rep. 414, it was distinctly held that a variation from time to time in the amount of fees received by the register of the Archdeaconry Court did not affect the validity of an immemorial custom to receive fees.
    Apply this reasoning to the present case. Mr. Wadleigh says the ordinary commission was ten per cent. Mr. Williams says it varied from twelve to twenty-five per cent. Sometimes it was ten per cent. This is quite enough to show that it was never less than ten per cent. And that is just double what the plaintiff could possibly recover under his bill of particulars.
    The plaintiff claimed “ the ordinary commission ” on the sale of a colliery. Mr. Redner knew of “ no sales or commissions paid on sales of collieries.” How, then, was he competent to testify on that subject? He was called as an expert, and he said he knew nothing of the only subject-matter about which his testimony could be material. It was utterly unimportant what was the customary commission upon “ sales of real estate.”
   Mr. Justice Paxson

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

This was a suit to recover commissions upon the sale of a colliery in Schuylkill county. Upon the trial in the court below, the plaintiff disclaimed any claim for compensation in effecting the sale other than the ordinary commissions for the sale of a colliery, and so interpreted his bill of particulars.

If the plaintiff is entitled to recover anything under the evidence, which is by no means clear, it is manifest he is not entitled to the ordinary, that is, the customary rate of commissions, for the reason that there was no evidence of the existence of a fixed customary rate in Schuylkill county. The defendant’s sixth point raised this question, but the court below refused to affirm it for’the reason that one witness (Mr. Wadleigh) had testified that ten per cent, was an ordinary rate of commission in 1868. What the witness did say, was this: “Five per cent, was a low commission at that time. As business was transacted at that tíme, ten per cent, was an ordinary commission. I am familiar with the sale of property of that kind in Schuylkill county.” The witness appears to have been engaged in mining, and for anything that the evidence discloses, never bought or sold a colliery on his own account or as a broker, save in this single instance. The only other witness called by the plaintiff upon this point was William L. Williams, a dealer in coal and formerly “ a coal operator,” who said that commissions generally vary from twelve to twenty-five per cent. All this falls very far short of establishing a customary rate for the sale of collieries. The plaintiff having disclaimed of reeord any claim for compensation “other than the ordinary commissions ” elected to recover under and by force of a custom by which the rate of commission on sales of collieries in that county was fixed at a certain sum. It is almost needless to say that to establish such a custom, it must be reasonable, certain, uniform, continued, and moreover, generally understood and acquiesced in by persons engaged in buying and selling collieries. Where a custom exists, parties are presumed to deal in view of it, and where no agreement is made as to commissions, that they agree to pay the customary rate. In the absence of such custom, and of any agreement as to rate, the measure of compensation would be the value of the services rendered. This is always a safe standard and should never be set aside for a custom unless the latter is proved to be so well known and so long persisted in that the parties must be presumed to have known of it. A usage which is to govern a question of right, should be so certain, uniform and notorious as probably to be known to and understood by the parties as entering into their contract : United States v. Duval, Gilp. 356. And it cannot be proved by isolated instances : Dean v. Swoop, 2 Binn. 72; Cope v. Dodd, 1 Harris 33.

Here the testimony in support of a customary rate lacked the essential elements of certainty and uniformity. Five, ten, twelve, fifteen, sixteen and twenty-five per cent, were all mentioned by the witnesses. And it is at least a question whether the rate relied upon — ten per cent. — is not open to the further objection of being unreasonable. Upon this point, however, we are not called upon to express an opinion.

It follows from what has been said, that the defendant’s sixth point should have been affirmed. The answer to the defendant’s fourth point (first assignment), was immaterial, as the plaintiff did not seek to recover on the promise to pay the $1000. Nor was there error in the exclusion of Mr. Redner’s testimony. He admitted that he had “ no experience in 1868 or 1869 in the sale of coal lands or collieries in Schuylkill county.” He was not, therefore, an expert.

Judgment reversed, and a venire facias de novo awarded.


text:
    Rhymer’s Appeal.
    1. A testator, by a will executed within one month of his death, left a bequest to a church to be expended in masses for the repose of his soul. The Act of April 26th 1855, Pamph. L. 332, prohibits devises or legacies for charitable or religious uses, unless by will executed at least one month before the death of testator. Held, that the bequest was within the statute and void.
    2. Per Sterrett, J.: While this may not be regarded as a charitable use, within the accepted meaning of the word, it is certainly, in every proper sense of the term, and according to the obvious intendment of the act, a religious use.
    February 6th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1878, No. 234.
    Appeal of Anastatia Rhymer, late Anastatia Power, and Charles G. Stewart, guardian of John and Mary Power, from the decree of the court sustaining the exceptions to the report of the auditing judge in the estate of Martin Power, deceased.
    Martin Power died July 23d 1874, leaving a will, dated July 9th 1874. In this will he made a number of specific bequests, among which were several to Catholic institutions, and the residue of his estate he disposed of as follows:
    “ Item. All the rest, residue and remainder of my estate I give and bequeath to St. Mary’s Catholic Church, to be expended in masses for the benefit and repose of my soul.”
    The account of the executors of the decedent was audited by Hanna, P. J., who held that the residuary bequest was for a “charitable” and “religious” use, and was void by virtue of the Act of April 26th 1855, and that the amount thereof should be awarded to the appellants, the heirs of testator. Exceptions were filed to this ruling on behalf of St. Mary’s Church, which the court sustained, Ashman, J., delivering the following opinion: “The testator, after making provision for all the members of his family, devised the residue of his estate to St. Mary’s Catholic Church, to be expended in masses for the benefit and repose of his soul. He died within thirty days after the execution of his will. The residue of his. estate amounted to <$649.79.
    “ The question is, was this a devise to a charitable or religious use within the meaning of the Act of 26th April 1855 ?
    “ There can be no doubt, that in England it would be regarded as a superstitious use, and therefore void. The making of a gift to procure the saying of masses for the soul of a devisor, was one of the superstitious uses prohibited by the statute of 1 Edw. D. 6, c. 14. But a superstitious use can hardly be said to exist in this country, where in the absence of any state religion there can be no standard of orthodoxy: Methodist Churches v. Remington, 1 Watts 224. It was said in McLean v. Wade, 5 Wheat. 266, that ‘ a religious purpose is a charitable purpose.’ Sir. Thomas Plumer defines a charitable use in these words: ‘ Where the donor appropriates a gift, either to charity or some public purpose, such as the repair of bridges, ports and havens, not operating in any manner to the benefit of himself:’ Melick v. The Asylum, 1 Jac. C. C. 180. But the best definition of what constitutes a charitable purpose is that of Binney, adopted by the court in Price v. Maxwell, 4 Casey 23, and in other cases.
    “ ‘ Whatever is given for the love of God, or for the love of our neighbor, in the catholic and universal sense, given from these motives and to these ends, free from the stain of everything that is personal, private or selfish, is a gift for charitable uses.’
    “ A religious use may be said to be such a charity with the infusion of a religious element. It is difficult to see how the present devise can be brought within the terms of this definition; so far from being free from everything of a personal, private oi selfish nature, it had its origin in a motive which was in the highest degree personal and selfish.
    “ The fact that the church might remotely profit by the money the' testator chose to pay for its mediation, in no sense elevated the gift to the rank of a gift for the advancement of religion ; the object of the testator was as purely private and selfish as if he had bequeathed a fund to the church for the erection of a monument to himself, or the purchase and maintenance of a pew for his family, both of which gifts have been held not to be charities: Roper on Legacies, vol. 2, p. 138.
    “It may be said that the practical effect of this construction would be to .evade the statute; we do not believe that any such intention was in the mind of the testator; but even if the fact be admitted the remedy is with the legisiature, and not the court. In Schultz’s Appeal, 30 P. F. Smith 396, which arose under this act, the court expressly admitted that the evident intention of the testator was to avoid the statute, but it nevertheless gave effect to his gift.
    “ It is not pretended that the question is free from embarrassment. The Act of 1855 was meant to save men from the force of solicitation addressed to them under the sanction of religion in the near view of death; but as that act is in derogation of the absolute right of all men to control the disposition- of their own property, it should be strictly construed. It has been the practice to award a moderate sum in payment of the services of mass in- cases when the decedent is of the Catholic faith, as a part of the funeral expenses, if the testator’s belief in the continued efficacy of these prayers leads him to devote the property to securing them after death. One should be careful that under cover of the statutes intended to protect him from imposition, we do not hinder him in the exercise of what he may regard as a religious duty. It is easy to imagine cases in which the testator might leave the bulk of a large estate to the church in payment of masses for the repose of his soul. But it must be remembered that the fund can never be divested for the benefit of the church from its original purpose, and that, on the first attempt at diversion, equity will intervene and raise another trustee to administer it according to the intention of the donor: Schnorr’s Appeal, 17 P. F. Smith 138. The exceptions to the adjudication are sustained, and the accountant is ordered to pay to St. Mary’s Catholic Church the sum of $649.79, for the purpose and in accordance with the will of the decedent.”
    From this decree this appeal was taken.

      F. W. Patten and H. F. Hepburn, for appellants.
    Bequests to pay for religious services have been held “ charitable,” as also bequests for an object which was personal and selfish : Penstred v. Payer, Duke Ch. U. (Bridgman) 381; Durour v. Motteux, 1 Ves. 820; Lloyd v. Lloyd, 16 Gur. 306; Dexter v. Gardner, 7 Allen 247 ; Swasey v. Am. Bible Soc., 57 Me. 524 ; Gravenor v. Hallum, Amb. 643 ; McGirr v. Aaron, 1 P. & W. 49 ; Grieves v. Case, 2 Cox Ch. 301; Attorney-General v. Combe, 2 Vern. 267. The church receives the money devised, and although it is stated to be a recompense for services, or given from selfish motives, the real object and the actual result should be regarded. The decision of the court below would nullify the statute : McGirr v. Aaron, supra ; Dexter v. Gardner, supra.

    The word “ religious ” has an additional force, and if the devise was not charitable it is within the term religious, and therefore void under the statute of April 26th 1855. This word has no legal and technical signification like the word “ charitable,” and is to be interpreted in its ordinary and well-known sense: Webster’s Dictionary; Blackstone Com. (Sharswood) 59, and cases cited; Miller v. Porter, 3 P. F. Smith 297; Dexter v. Gardner, supra. The statute is to have a liberal construction, and the object with which it was passed should be regarded : Price v. Maxwell, 4 Casey 33; Shelford on Law of Mortmain 122.

      A. A. Hirst, for appellee.
    Martin Power, by his residuary devise, intended to benefit no one but himself. By it he did not intend to benefit his fellow-man or advance the cause of religion. It was a devise purely private, personal and selfish. Ho had already provided for each and every member of his family, for the charitable institutions of his faith, and for his parish church. The court below found those devises to be void under the Act of 1855, and no exception is taken to such finding.
    The money bequeathed under the residuary clause to a trustee to expend in his behalf, he intended should be and will bo applied to pay for time and services rendered in that behalf. This and no other court in this country can determine whether such service, so rendered, will be efficacious, or interfere with Martin Power’s belief therein.
   Mr. Justice Sterrett

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

By the residuary clause of his will, executed fifteen days before his death, the testator bequeathed “ all the rest, residue and remainder” of his estate “to St. Mary’s Catholic Church, to be expended in masses for the benefit and repose of” his soul.

It is contended that the bequest is void under the Act of 1855, the 11th section of which declares that “ no estate, real or personal, shall hereafter be bequeathed, devised or conveyed to any body politic, or to any person, in trust for religious or charitable uses, except the same be done by deed or will attested by two credible and at the same time disinterested witnesses, at least one calendar month before the decease of the testator or alienor, and all dispositions of property contrary hereto shall be void and go to the residuary legatee or devisee, next of kin or heirs according to law.”

While the propriety of legislation which thus limits the right of giving for religious or charitable purposes may sometimes have been questioned, it has never been doubted that the act is constitutional, and the only question presented for our consideration is whether the residuary bequest is for either a religious or charitable use, and therefore falls within the prohibition of the statute.

The testator has clearly declared the use or purpose to which his bequest shall be applied. It is to be expended in masses for the benefit and repose of his soul. While this may not be regarded as a charitable use within the accepted meaning of the word, it is certainly in every proper sense of the term, and according to the obvious intendment of the act, a religious use. In the denomination with which the testator appears to have been identified the mass is regarded as a prominent part of the religious service and worship. According to the Roman Catholic system of faith there exists an intermediate state of the soul, after death and before final judgment, during which guilt incurred during life and unatoned for must be expiated; and the temporary punishments to which the souls of the penitent are thus subjected may be mitigated or arrested through the efficacy of the mass as a propitiatory sacrifice. Hence the practice of offering masses for the departed. It cannot be doubted that in obeying the injunction of the testator and offering masses for the benefit and repose of his soul the officiating priest would be performing a religious service, and none the less so because intercession would be specially invoked in behalf of the testator alone. The service is just the same in kind whether it be designed to promote the spiritual welfare of one or many. Prayer for the conversion of a single impenitent is as purely a religious act as a petition for the salvation of thousands. The services intended to be performed in carrying out the trust created by the testator’s will, as well as the objects designed to be attained, are all essentially religious in their character.

It appears to us that the bequest to St. Mary’s Catholic Church was clearly for a religious use, and therefore void according to the express terms of the statute. It follows that the schedule adopted by the auditing judge should have been confirmed by the court.

The decree of the Orphans’ Court is reversed at the costs of the appellee, and it is now adjudged and decreed that the residuary fund, viz., $643.79, be distributed as follows, to wit: To Timothy Kelly, administrator of Mary Power (widow), $214.59; to Anastatia Power, $143.06;. to Charles E. Stewart, guardian of John Power, $143.07 ; to Mary Power, $143.0-7.


text:
    Mathews versus City of Philadelphia.
    1. By the Consolidation Act of 1854, the distinct corporate existence of the Board of Guardians of the Poor was taken away from that body, and it was made a department of the city.
    2. Said boai'd is subject; to the provisions of the Act of April 21st 1858, and cannot make a contract which will bind the city, unless an appropriation sufficient to pay the same has previously been made by city councils.
    3. Parker v. City, 11 Norris 401, followed.
    February 9th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterbett, JJ. Sharswood, G. J., and Green, J., absent.
    Error to the Court of Common Pleas, No. 2, of Philadelphia, county: Of January Term 1878, No. 165.
    Case stated wherein W. M. Mathews was plaintiff and the city of Philadelphia defendant.
    The case as stated was as follows: The appropriation made to the Board of Guardians of the Poor for the year 1877 became exhausted, as to the items to which the subject-matter of this case stated refers.
    In the judgment of said board it became necessary to provide for the maintenance of paupers (who had been rightfully admitted to the almshouse) for the balance of the year, and they awarded contracts to the lowest responsible bidders, after advertising therefor, for the supplies needed in their judgment to attain said result.
    Under the said contracts, goods were received at the almshouse, and the said plaintiff is the assignee of the debts arising from said contracts of sale. The councils of said city adjourned on the 25th day of June, and did not again assemble until the 2d day of October 1877. It is agreed that “ An act for the consolidation and amendment of the laws as far as they respect the poor of the city of Philadelphia, the district of Southwark and the township of the Northern Liberties,” passed March 29th 1808, 4 Sni. Laws 51, and all other acts, public and private, shall be considered as though here inserted, more especially the Act of April 21st 1858, which provides that no debt or contract hereafter incurred or made shall be binding upon the city of Philadelphia unless authorized by law or ordinance, and an appropriation sufficient to pay the same be previously made by councils.
    If the court shall be of opinion that the debts contracted by said Board of Guardians of the Poor, for the necessary maintenance of the poor, are binding on the defendant, although no appropriation at the date of said contracts existed, then judgment for the plaintiff, the damages to be assessed by the prothonotary, otherwise for defendant.
    The court entered judgment for defendant, when the plaintiff took this writ and alleged that this action of the court was error.

      Joseph A. Bonham and David W. Sellers, for plaintiff in error.
    The Act of March 20th 1803, 4 Sm. Laws 51, creates a body-politic and corporate in the law by the name of “ The Guardians of the Poor of the City of Philadelphia, the District of Southwark and Township of the Northern Liberties.”
    The Act of April 1st 1805, 4 Sm. Laws 247, a supplement to the Act of 1803, provides, “ That all money levied, assessed, and collected for the use of the poor of the city * * * shall be under the control and superintendence of the Board of Guardians.” * * *
    Before the Act of February 2d 1854, Pamph. L. 45, commonly called the Consolidation Act, a system had been established in the county of Philadelphia which conferred on the guardians of the poor the primary power to provide for the maintenance of the poor in the almshouse. This power was exercisable upon their own discretion. Although in the city and districts, as the same existed before 1854, there were boards of commissioners and of councils with powers to assess and levy taxes and appropriate moneys, yet the expense incurred in the maintenance of the poor was paramount ¡to the discretion of such city and districts. It is believed that it has not been changed by any subsequent legislation.
    It is contended that under the foregoing acts the debts incurred which are the subject of the present suit have been lawfully contracted, and that there is a primary liability which can be enforced against the city: Williamsport v. Richter, 31 P. F. Smith 508.
    Does the 5th section of “A further supplement to the Act incorporating the City of Philadelphia,” approved April 21st 1858, Pamph. L. 386, change this? It is suggested that the true interjDretation of this statute is that a debt incurred for purposes municipal in its nature, and by officers subject as such to municipal regulation and control are alone meant. The support of the poor is not a municipal duty. It has never been imposed upon them. The duty is imposed by the Commonwealth, and the expense thereof, though a debt, may be collected adversely: Smith v. City, 5 Phila. 1 ; City v. Dyer, 5 Wright 468; Smedley v. Irwin, 1 P. F. Smith 448; City v. Field, 8 Id. 320; Tatham’s Appeal, 30 Id. 470, are cited to show that notwithstanding the words of the Act of 1858, there are debts, which, by operation of law, are not covered by it.

      C. E. Morgan, Jr., Assistant City Solicitor, and Wm. Nelson West, City Solicitor, for defendant in error.
    We submit that the board of guardians of the poor is a department of the city of Philadelphia, and as such is clearly subject to the provisions of the Act of Assembly of April 21st 1858: Bladen v. City, 10 P. F. Smith 464 ; City v. Flanigen, 11 Wright 21; City v. Johnson, Id. 278; Perkins v. Slack, 5 Norris 278, and Parker v. City, 11 Id. 401, which latter distinctly rules this case.

      Prior to the Consolidation Act, approved February 2d 1854, the board of guardians of the poor was a distinct and independent corporation, and as such in its own corporate name and title held property, and was entitled to bring suit, and was the subject of litigation. The said Act of Assembly transferred to the city all the property of every description of said corporation, and made it a department of the municipality.
   The judgment of the Supreme Court was entered, February 16th 1880,

Per Curiam.

It is true the Act of 20th March 1808, created “ The Guardians of the Poor of the City of Philadelphia, the District of Southwark, and Township of the Northern Liberties,” a body politic and corporate. It is also true that a supplement thereto passed 1st April 1805, declared that all money, levied, assessed and collected for the use of the poor of the city should be under the control and superintendence of the board of guardians. The Consolidation Act of 1854, did not substantially lessen the power of the guardians of the poor in that respect, but it did take from that body its distinct corporate existence, and made it a department of the city. The Act of 21st April 1858, expressly declares “ that no debt or contract thereafter incurred shall be binding upon the city of Philadelphia, unless authorized by law or ordinance, and an appropriation sufficient to pay the same be previously made by councils.” The judgment of the court below is fully sustained by this act, and numerous decisions: City of Philadelphia v. Flanigen, 11 Wright 21; Same v. Johnson, Id. 382; Bladen v. Philadelphia, 10 P. F. Smith 464; Parker v. Same, 11 Norris 401.

Judgment affirmed.