text:
    Rockland and Venango Coal and Oil Co. versus McCalmont et al. McCalmont et al. versus Rockland and Venango Coal and Oil Co.
    1. P., on behalf of ten, purchased land, they took possession, made improvements, and were afterwards incorporated. Afterwards M. purchased the land at treasurer’s sale for taxes; the corporation brought ejectment against him; Held, that a deed to the corporation executed and delivered after the commencement of the suit was evidence for the plaintiffs.
    2. The purchaser, unless his purchase at treasurer’s sale be valid, was an intruder and could not contest the validity of the sale as between the holders of the legal title and the purchaser.
    3. The entry and possession- of the land by the corporation, with the consent of the holders of the legal title, was a title under which the corporation could recover in ejectment against a worthless title.
    4. The Statute of Frauds or Act of 1856 against parol trusts is not applicable ; the title between the vendor and vendee not being in controversy.
    5. The possession of the plaintiffs was a sufficient title on which to recover against an intruder.
    6. The time for redemption of lands sold for taxes begins to run from the sale, not from the treasurer’s deed.
    7. The Act of May 1st 1868, repealed the provisos of 41st section of Act of 1844, as to sale of seated land for taxes in Venango county, and left the right of redemption to be regulated under the former acts.
    8. Croinelien v. Brink, 5 Casey 522, adopted.
    October 22d 1872.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Venango county: Of October and November Term 1872, No. 102 and 103.
    The action in which these writs of error were taken, was an ejectment commenced February 28th 1871, by the Rockland and Venango Oil Company, against S. P. McCalmont and another, for a “ tract of land in Rockland township, containing 87 4-10 acres, being allotment 418 of Bingham lands, part of warrant 3508.”
    The cause was tried May 11th 1872, before Jenks, P. J., of the 18th district, when it was admitted that the title of both parties was derived from Elihu Chadwick.
    The plaintiffs gave in evidence, deed for the land in question, E. Chadwick to A. Stranford and W. Smith, dated January 21st 1861: deed Stranford and Smith to H. S. Withridge and N. Gr. Penniman, dated October 29th 1864; letters patent from the Commonwealth, dated February 17th 1865, incorporating the plaintiffs.
    They then called N. O. Penniman, one of the grantees from Stranford and Smith, who testified that the land had been purchased on behalf of ten individuals who afterwards organized the Rockland and Venango Oil Company; that in execution of the trust a deed had been made by Withridge and himself to the plaintiffs ; it was executed and delivered April 30th 1872 (after the issuing of the writ in this case). The company took possession of the property in the fall of 1864, and adopted the title before they got the act of incorporation. William Winner sold the property to them and acted for them for a short time.
    The plaintiffs then offered in evidence a deed from Withridge & Penniman to them for the land in question, dated February 18th 1865. The offer was objected to by the defendants on the ground that the deed was delivered after the issuing of the writ in this case. The court admitted the offer and sealed a bill of exceptions for the defendants.
    The defendants then gave in evidence, the assessment list of Rockland township, for 1865, “William Winner & Co., No. 418, 87 acres, seated list;” and same for year 1866. Treasurer’s sale of land as seated June 10th 1868 to S. P. McOalmont, for taxes of 1865 and 1866, and treasurer’s deed to him for same, dated July 30th 1868. _ . _
    _ _ The plaintiffs in rebuttal gave evidence by N. Gr. Penniman that in the latter part of 1864, they put a stationary engine' on the ground and erected a dwelling-house near the line of McOalmont; they sank a well in 1865. In that year their superintendent lived in the house; got oil out of the well in June 1866, when there was $100 or $150 worth of oil in the tank; they leased in June 1866 to one Anderson, who agreed to continue pumping the well and to put another down ; on going to the premises in the fall of that year, witness found that Anderson had gone; the engine, tank, derrick, &c., were worth $1100; oil was left in the tank in 1866 to pay the taxes.
    There was evidence also that part of the machinery was on the ■ premises in 1867, 1868 and 1869.
    Hugh Craig testified, that under instructions from Penniman he went to the county treasurer and told him he wanted to get the amount of taxes against the Rockland and Yenango Oil Company; the treasurer said there were no taxes against that company; witness described the property and gave him the names of Withridge, Penniman, Stranford, Smith and others; if he had got the amount he would have paid the taxes; he went again with R. S. Cochrane and examined the land book to see if the property had been sold; he examined the recorder’s office for the names of owners in the line of plaintiff’s title, and in the commissioners’ office for assessments for a number of years; he described the property to the township assessor who told him it was not assessed; he saw a piece assessed in Winner’s name, but it contained two acres less than this tract; he did not look for the number of the tract, nor examine asséssments earlier than 1867.
    Cochrane testified as Craig did with reference to their joint examination.
    The plaintiffs offered to prove “ that on the 24th day of June 1870, more than two years after the date on which the land had been struck down to defendant, but within two years after the execution, acknowledgment and delivery of the treasurer’s deed, or either of them, and within two years after the payment of taxes and costs and execution and delivery of the surplus bond by defendant, or either of them, the agent of the plaintiff offered to pay the treasurer the money necessary to redeem the land, which said money was refused by said treasurer.”
    This was objected to by the defendant, for the reason that the offer is to prove a tender of the money after the expiration of two years from the date of sale.
    The offer was rejected and a bill of exception was sealed for the plaintiffs.

      The defendants in answer gave evidence as to the abandonment of the land and that there was no property on it about September 1866 and after, except a derrick of much less value than the amount of taxes.
    The Act of April 29th 1844, section 41, provides that where lands upon which personal property sufficient to pay taxes cannot be found, and the owners neglect to pay the taxes, the collectors of the proper townships shall return the lands to the commissioners, and they shall be sold as unseated lands, provided that no sale shall be made of such lands until the owner shall have neglected to pay for two years and that the owner may redeem at any time within one year after receiving actual notice from the county treasurer that the lands have been sold, by paying the amount of taxes and costs with interest from the time when the taxes became due.
    The Act of May 1st 1868, Pamph. L. 1158, repealed the provisoes to the 41st section of the Act of 1844.
    The Act of April 3d 1851, section 3, Pamph. L. 317, provides that if any taxes in Venango county shall remain unpaid for thirty days after the 1st of August in any year a warrant for their collection shall be issued by the treasurer and placed in the hands of the constable of the proper township; and if any persons owing taxes shall neglect to pay them in ten days after demand the constable shall distrain the goods of the delinquent and sell them. By the 6th section of the same act the constables are required to settle their accounts and pay the money collected by them under the warrants within four months after the delivery of the warrants to them.
    The defendant’s points were:—
    1. The plaintiff not having shown either a legal or equitable title in itself, for the land described in the writ prior to tfie beginning of this suit, the verdict must be for the defendants.
    This point was answered in the negative.
    3. If the collector, at any reasonable time between the time the duplicate came into his hands and the time he was required by law to return the same, went to the land and found it vacant and no property there out of which the taxes might be made and had no reason to believe there would be property on the land in due time, out of which the taxes might be made, the sale of the land would not be void because there might have been property there at some time while the duplicate was in collector’s hands.
    The court answered the 3d point as follows:—
    “We perhaps do not fully understand this point, but as it appears to us this qualification is necessary, that if there was not personal property on the land sufficient to pay the taxes after the time the constable, by reasonable diligence, could have levied upon the same, he had the right to return the land, and a regular sale upon such return would vest a good title in the defendants. As thus explained we affirm this point.”
    The verdict was for the plaintiffs.
    Each party took a writ of error
    The plaintiffs assigned for error the rejection of their offer of evidence.
    The defendants assigned for error:—
    I. Admitting the deed from Withridge and Penniman'to the plaintiffs.
    2-3. The answers to the defendants’ 1st and 3d points.

      J. D. Haneock, for plaintiffs below,
    referred to Act of 1844 and 1868, supra. Such acts should be construed liberally in favor of the owner of the land sold: Gault’s Appeal, 9 Casey 97. By Act of March 13th 1815, sect. 4, 6 Sm. L. 301, 2 Br. Purd. 1447, pl. 30, two years after sale are allowed to redeem. A purchaser acquires no right until he receives his deed Hoffman v. Bell, 11 P. F. Smith 444; Burd v. Patterson, 10 Harris 219; Sheik v. McElroy, 8 Id. 25. The land* having been purchased for the company and possession taken for them, they had an equitable title on which they could recover in ejectment: Willing v. Brown, 7 S. & R. 467; Schuylkill Navigation Company v. Farr, 4 W. & S. 62. A naked possession is sufficient to recover in ejectment against o.ne who has put plaintiff out without title: Shumway v. Phillips, 10 Harris 11; Woods v. Lane, 2 S. & R. 56. If the plaintiff have not a regular paper title, it is sufficient if he show a right of entry: Milligan v. Dickson, 1 P. C. C. R. 435, note; Hylton v. Brown, 1 W. C. C. R. 204; Allen v. Lyons, 2 Id. 475. The trust resulted directly to the party for whom the purchase was made: Brightly’s Eq. Jur. 338; 4 Kent’s Com. 307.

      S. O. T. Dodd, for defendant below.
    — To raise a resulting trust the purchase-money must be paid at the time of the purchase: Barnet v. Dougherty, 8 Casey 371. He cited also the several Acts of Assembly as to tax sales, referred to supra. When land is knocked down at the treasurer’s sale is the time from which the period for redemption is to be computed: Cromelien v. Brink, 5 Casey 522.
    November 4th 1872,
   The opinion of the court was delivered, by

Agnew, J.

— These writs of error were heard together, and will be disposed of in the order in which they are stated. The first and second specifications of error in the first case may be considered together. The evidence shows that the land was bought by the members of the Rockland and Yenango Coal and Oil Company for the purpose of organizing the company, and using the land for the purposes of its intended corporation. The company was duly organized and incorporated, the land taken into possession and held by the company in its incorporated capacity; the members as individuals claiming no title in themselves, and valuable improvements made by the company, all which took place before the sale of the land for taxes to S. T. McCalmont, Esq. On the trial of the cause one or more of the original purchasers and corporations made pi’oof of these facts. The contest here is not between the company and one claiming title under the purchasers of the land for the corporation or other claim out of an ownership before the treasurer’s sale, but between the company and one who stands as an intruder upon the land, unless he can make good his treasurer’s title. Those who might gainsay the trust for the company do not, but, on the contrary, admit it. Under these circumstances the entry and prior possession of the land by the corporation, with the consent of the holders of the legal title, constitutes a sufficient title to recover against the purchaser at the treasurer’s sale, if his title be worthless: Shumway v. Phillips, 10 Harris 151, and cases there cited. The reasons for enforcing the Statute of Frauds and Perjuries, or the Act of 1856, against parol trusts do not exist, for that title is not the subject under controversy. In this case, it being an ejectment, the only principle to be enforced against the plaintiffs is that which requires them to show a sufficient title to recover; and this is found in their former possession which was intruded upon by the defendants. Christy v. Brien, 2 Harris 248, is an analogous case. There the claimants of a parol title without delivery of possession, which was supported by the testimony of the vendor at the trial, were allowed to recover against an intruder who held by less than twenty-one years’ possession, on the ground that such a case did not fall within the Statute of Frauds. This principle was reiterated in the case of Houser v. Lamont, 5 P. F. Smith 311.

These reasons show that the admission of the deed to the corporation, though dated and delivered after the bringing of the suit, was no error. It was not received as the evidence of the plaintiff’s title. Had that been the case, the title vesting after suit, it would have been an error to receive it. But it was properly received as another circumstance connected with the possession, improvements and testimony of the former owners of the legal title, to show a recognition of the rightful character of their possession, by the individual members who made the purchase. We discover no error in the answer of the court recited in the third specification. It needs no elaboration.

In the second writ of error brought by the defendants below the question for review is the period from which the right of redemption runs. It is also a question whether any right of redemption exists under the special law applicable to Venango county, passed on the 1st of May 1868, P. L. 1158. That law repeals the provisos to the 41st section of the Act of 29th April 1844, authorizing the sale of seated lands for unpaid taxes. This repeal left seated lands to be “ sold as unseated lands are now sold in satisfaction of the taxes due by the said owner or owners.” Had the 41st section of the Act of 1844 ended with these words, it is evident the sale of seated lands would have been regulated throughout by the laws then existing for the sale of unseated lands, which would have included the right of redemption. The legislature saw this, and therefore added the two provisos to carry out an intended change of the features in the former law's. , The first was to sell seated land after a neglect to pay taxes of two years instead of one in the case of unseated lands. The second was to authorize the redemption within one year after actual notice of the sale by the treasurer, instead of an absolute requirement to redeem within two years after the sale without notice, as in the case of unseated lands. The purpose and arrangement of the provisos show clearly the intent to regulate the redemption, not to give it. Existing under the former laws, therefore, the repeal of the provisos left the right of redemption as regulated under the former acts.

In regard to the time of redemption we think the court below was right in holding that it begins to run from and after the day of sale. This was the decision in Cromelien v. Brink, 5 Casey 522. It is said the precise point in this case was not made in that. But it is not supposed that the question whether the day of sale should be included or excluded in the computation of the two years, and an elaborate opinion on that point be given by this court, if the time ran from the making of the deed instead of the day of sale. The sale there was on the 10th of June, and the redemption on the 10th of June, two years afterwards. The court adopted the plain language of the 4th section of the Act of 13th of March 1815, which is “two years after such sale.” What sale ? Undoubtedly the sale stated in the 1st section, which requires the treasurers of the several counties “ to commence on the second Monday of June in the year 1816, and at the expiration of every two years thereafter, and adjourn from day to day, if it shall be found necessary so to do, and make public sale,” &c. This section does not stand alone in the interpretation, the sale being an act referred to in various parts of this act, and previous laws to regulate the system. This long publication of the day of sale is required in various places to inform owners as well as bidders, the time when taxes have been unpaid, to wit, one year before the sale, the time when the purchaser must pay the taxes and costs, to wit, as soon as the property is struck down: Act 1817, § 1. There are very strong reasons also for the day of sale being so fixed. Of that day every one has notice ; the owner as well as the purchaser. It is a day known to the treasurer and to be found in his books, and can always be ascertained. But if the deed be the index of time the case is different. Shall the date, the acknowledgment in court, or the delivery, begin the computation ? If so, it is evident the owner has no certain guide to regulate his action. If it be the date, that is not always to be found in the treasurer’s books; if the acknowledgment, he must go into the Court of Common Pleas, and if the delivery, he is wholly at a loss to know his rights. The right of redemption is too important to be thus uncertain. The legislature required the redemption to be made at the treasurer’s office, and through that officer. His book of sales was intended to guide both the. owner and the officer, and not evidence to be sought aliunde. Besides, universal practice has been to regard the day of sale, the time -when the property was knocked down, and the taxes and costs required to be paid by the purchaser, as the time from which the computation is to be made. Any other time now adopted, would endanger many titles. The judgment is affirmed in both cases.


source: Caselaw Access Project

author: Read, C. J.

license: Public Domain

text:
    Follansbee versus Walker.
    1. An attorney who has opened his client’s case and cross-examined witnesses is a competent witness for the client.
    2. Coal was ordered by defendant in the name of a firm, and received by him ; judgment was recovered by the vendors against the firm for the coal; it was paid by one of the firm. Held, that he could not recover in his own name against the defendant, but must sue in the firm name.
    3. Frear v. Drinker, 8 Barr 520, remarked on.
    October 25th 1872.
    Before Thompson, C. J., Read, Agnew and Shabswood, JJ.
    Error to the Court of Common Pleas of Brie county: of October and November Term 1872, No. 9.
    This was an action of assumpsit brought April 3d 1869, by John W. Walker against H. N. Armstrong and Joshua Follansbee, trading as H. N. Armstrong & Co. The declaration was in the common counts.
    The plaintiff’s claim, filed in the name of the plaintiff alone, is as follows:
    “1867.
    Nov. 1. — To quantity of coal sold and delivered by
    plaintiff to defendants at the agreed price of - $2300.00 To one-half rent of office and yard one year - 125.00
    To one-half rent of horses and wagons 6 months 50.00
    $2475.00

      1869.
    Apr. 2. — Judgment in the Erie Common Pleas, &c., G. R.
    Wilson & Co. v. John W. Walker and H. N. Armstrong, and paid by plaintiff in above' suit, J. W. Walker - $531.64
    Costs in said suit - 28.11
    $3034.75
    Follansbee appearéd and pleaded “Non assumpsit.”
    There was no appearance or plea for Armstrong.
    The case was tried, February 3d 1871, before Wetmore, P. J., when it appeared that the plaintiff and H. N. Armstrong, one of the defendants, during the year 1866 and until the 1st or 18th of November 1867 (as to which day the evidence was conflicting) were partners, under the firm of Walker and Armstrong, and held a lease for ten years of a coal-yard, ofiice, &c., in the city of Erie. On one of those days the firm of Walker & Armstrong sold to Follansbee one-half the interest of the firm property. Follansbee and Armstrong continued in business under the firm name of H. N. Armstrong & Co.
    There was evidence that on the 8th and 21st of November 1867 orders for coal in the name of Walker & Armstrong were drawn on Wilson & Co., of Buffalo, and the coal ordered was shipped to “Walker & Armstrong,” by Wilson & Co.; that the coal had been ordered by Armstrong, in the name of “Walker & Armstrong,” after the dissolution of that firm, and that it had been received by H. N. Armstrong & Co. The firm of Walker & Armstrong was sued by Wilson & Co. for the coal and a judgment recovered which was paid by Walker.
    On the trial, A. J. Foster, Esq., the attorney for defendant, Follansbee, was offered as a witness for him. Mr. Foster had opened the case for the defendant and examined witnesses on his behalf.
    Mr. Foster was objected to by the plaintiff as incompetent for these reasons ; he was rejected by the court and a bill of exceptions sealed for the defendant.
    The defendant’s 3d point was:—
    The plaintiff cannot, in this action, recover the money he paid in discharge of the judgment of Wilson & Co. v. Walker & Armstrong, and D. D. Walker against the same, there being no evidence of any promise or assumption by H. N. Armstrong & Co. to repay the same to plaintiff.
    The answer was:—
    “ If the coal was received by H. N. Armstrong & Co. and used by them on an order made by Walker & Armstrong before the formation of the firm of H. N. Armstrong & Co., and Wilson & Co. sued Walker & Armstrong and recovered a verdict for the amount of the coal so received, and John W. Walker paid the amount of the verdict, he can recover the same in this suit.”
    The verdict was for the plaintiff for $653.12.
    The defendant took a writ of error and assigned for error the rejection of Mr. Foster and the answer to defendant’s 3d point.

      W. Benson (with whom were A. J. Foster and F. Babbitt), for plaintiff in error.

      J. O. Marshall (with whom was F. F. Marshall), for defendant in error.
    January 6th 1873,
   The opinion of the court was delivered, by

Read, C. J.

— On the trial of this case A. S. Foster, Esq., was offered as a witness on the part of the defence, objected to by the plaintiff’s counsel, and rejected by the court for the following reason : “ Mr. Foster is attorney for the defendant Follansbee, opened the case for him to the jury and examined the witnesses for said defendant, and the court on this ground excludes him as a witness.” This is assigned for error.

In Frear v. Drinker, 8 Barr 521, Mr. Justice Rogers says: “It is also contended an attorney is not a competent witness for his client. In England it has been lately ruled that an attorney is not to give evidence under certain circumstances.” He cites two cases before Mr. Justice Patteson and Mr. Justice Erie, and he says, “ The furthest the court has yet gone is to discourage the practice of acting in the double capacity of attorney and witness, but there is nothing to prohibit an attorney from being a witness for his client when he does not address the jury.”

“ It is said, and I agree, that it is a highly indecent practice for an attorney to cross-examine witnesses, address the jury, and give evidence himself to contradict the witnesses. It is a practice which, as far as possible, should be discountenanced by courts and counsel. But these cases are not open to this objection, because it appears negatively, that the counsel did not address the jury. It is sometimes indispensable that an attorney, to prevent injustice, should give evidence for his client.” In the earlier cases in Pennsylvania, the objection to the examination of the attorney in the cause was his interest in it, as in the case of the late Judge Baldwin in Miles v. O’Hara, 1 S. & R. 32, in 1814. In the first case, Newman v. Bradley, 1 Dallas 240, in the year 1788, Howell, who was of counsel for the plaintiff, gave the chief evidence to support the action, and he and Tod argued the cause before the jury, and there was a verdict for the plaintiff. “ When Howell offered himself as a witness Levy objected, that he was interested, inasmuch as his judgment fee depended on his success in the cause. But the objection was overruled by the court.”

The two English cases cited by Judge Rogers have since been overruled. Pitt Taylor, in the 2d volume of his Treatise on the Lavr of Evidence, p. 1170, sec. 1240, 4th edition, thus states the law: “ The judges at Nisi Prius were at one time inclined to regard as incompetent to testify all persons, whether counsel, attorneys or parties, Avho being engaged in a cause had actually addressed the jury on behalf of that side on which they were afterwards called upon to give evidence. Further investigation of the subject, however, has led to a judicial acknowledgment that no such practice exists.” The authority for this, Cobbett v. Hudson, 22 L. J. Q. B. 11, 1852, the judgment of the court (of which Mr. Justice Erie was one) being delivered by Lord Campbell, C. J..

The question may therefore be considered as settled in England and Pennsylvania, and also in Massachusetts: Potter v. Inhabitants of Ware, 1 Cushing 519. There was therefore error in holding Mr. Foster was not a competent witness.

The paper-books on both sides speak of testimony, and argued upon it, without printing the evidence on which the remarks are based, which obliges us to disregard what might otherwise be of importance.

The answer of the court to the third point appears to be open to the technical objection that the plaintiff could not recover in his own name, but must use the name of the firm of Walker & Armstrong.

Judgment reversed, and venire de novo awarded.


author: Agnew, J.

text:
    The Oil Creek and Allegheny River Railway Co. versus Clark.
    1. A railroad ticket stating on its face to be from one station named to another station named, does not import a right to make the journey between the stations, by different trains.
    2. Such ticket imports only a single continuous trip.
    3. Dietrich v. henna. B. B., 21 P. F. Smith 432, recognised.
    October 25th 1872.
    Before Thompson, O. J., Read, Agnew and Sharswood, J.J.
    Error to the Court of Common Pleas of Crawford county: No. 49, to October and November Term 1872.
    This was an action on the case, brought to September Term 1870 of the court below by Samuel J. Clark, against “The Oil Creek and Allegheny River Railway Company.”
    The plaintiff’s cause of action was the putting him off the cars of the defendants under the following circumstances: The plaintiff had bought a car ticket from a station on defendants’ road called “Miller Farm” to go to Oil City, a distance of 12 miles; the ticket was as follows:
    OIL CREEK & ALLEGHENY R. R’WAY. O. C. & A. R. R. WAY
    MILLER FARM January
    to 6
    OIL CITY. 1870.
    He entered the car of the defendants, exhibited his ticket to the conductor, who “punched” it and returned it to him. He travelled on the train for three and a half miles to “ Petroleum Centre,” another station on the road, where he stepped from the train to the platform of the station, and whilst there conversing with an acquaintance, the train moved on and left him on the platform. The plaintiff waited for the next train on the defendants’ road; he took that train and the conductor refused to accept the ticket which had been punched, although the plaintiff informed him that he had been accidentally left; he demanded the fare from the plaintiff, and upon his refusal to pay removed him from the train.
    By a general rule of the company, passengers were not allowed to leave one train and take a later one without giving notice to the conductor of the first, and the conductors of the later trains are required to remove such passengers from the train, unless they pay their fare: punching is a cancellation of a ticket.
    Lowrie, P. J., charged:—

      * * * “[Whether or not the company defendant has such a rule of practice as is insisted on here, is a question of fact for the jury. If it has such a rule, requiring passengers, once started on their journey, to give notice to the conductor, before leaving the train in order to finish their journey on a later one, under the penalty of having their ticket treated as cancelled and of being ejected from such later train; it is not an unreasonable one, and it ought to be obeyed].
    “ General society has its customs, and every trade, occupation, office and business has its usages; this is as natural and necessary as habits to the individual man. These usages and customs may grow up spontaneously and unconsciously, or they may be instituted by expressed law or rule. The general customs of the country are its common law, and all are charged with knowledge of them. Not so however with the rules and usages of particular occupations, trades and businesses, other people are not bound by them merely by coming into transient relation with trades. These usages are principally for the convenience of the trade itself, and others are not bound by them, except so far as they know and may be presumed to accept them. Whatever a law says it says to those who come under it, that they may not have the excuse of ignorance of it, and thus by law is knowledge of sin and of duty in matters of this kind as well as in other cases.

      “ The defendant is a public carrier, and, as such, is bound to carry any one who offers to go on their trains, on payment of the legal fare; and, in doing so, it can impose no unreasonable terms, nor claim any higher quality or' authority for its rules and usages than is conceded to those of other forms of business. The rule insisted on is said to require a passenger to give notice to the conductor of his intention to get off and take another train at any point, so that the conductor may punch or otherwise mark his ticket accordingly; but it is not shown how the rule originated, who made it, or whether it applies to the whole or only to a part of the defendant’s road, and I know of no evidence that the plaintiff had any knowledge of the rule. From the argument of the defendant’s counsel it might seem to be specially applicable to the locality in question, for the purpose of providing against the crowds who throng the cars there and the attempts of some of them to steal a ride. But honest men are not to be presumed to know of such necessity. We cannot dispense with the passengers’ knowledge of the rule, because the defendant’s business is so great that they cannot give notice of their rules, and especially against a passenger who may accidentally and unintentionally find himself left by the train. This would be like 'saying, the greater the company’s profits the less its duties to the public.
    “ [A man who never travelled the road would not be expected to know the rule, and one who had never stopped at an intermediate station would have little chance of learning it, unless by seeing some one ejected for transgressing it. None but railroad men would be expected to know that a special rule is necessary to prevent people from stealing rides] at particular places. [The ticket grants the plaintiff the right to travel on the journey named on it, and it does not seem that he was bound to any particular train, and it imposes no terms and gives no notice of any rule that he is required to obey or to inquire about].
    “ It is argued that the plaintiff was bound to inquire for written terms of the contract. But of whom must he inquire ? Conductors offer no information and generally have no time to give any. At principal stations there are many offices, and modest men cannot be expected to run from one to another to inquire, at the risk of finding themselves very unwelcome. At way stations there is only the ticket agent, and he has no time to give instruction in the few minutes before train time that he opens his window to a jostling crowd of applicants. If the people are bound to find out such rules, then reason would require that the company should provide agents to give the information, and let it be known who they are, and give time and opportunity to find them and obtain it. It is not denied that the plaintiff had a right to travel the whole journey, part on one train and part on later ones, but it is claimed that he forfeited part of this right by leaving the first train without giving notice to the conductor. For the purpose of raising the answer relied on by the plaintiff, I assume this to be true; if the plaintiff knew of the rule of the road which the defendant relies on, I should hesitate about accepting this claim as a true statement of the law, even with this qualification, if the case depended on it; because it makes a cancellation mark, which at the will and for the convenience of the defendant, is made in advance of satisfaction of the ticket, equivalent to a real satisfaction, if for any reason part of the journey is postponed for a later train, and will bear no excuse for relief from the alleged forfeiture; but this is a suggestion aside of the’ point in issue.
    “ The defendant’s counsel argue that the ticket constituted a contract with this rule of forfeiture implicitly incorporated in it; and this is the proper way of regarding it; but people do not make contracts without knowing their terms, and the law does not consider terms as implied, unless, because of the general customs of the country, or special usages of trade known to the parties, they are to be considered as intended by both parties.
    “ Much reliance is placed upon the punch mark made by the conductor as meaning cancelled, but it did not mean that he could ride no farther, and how could the plaintiff know that it meant that he must stay on that train ? How should he know that each conductor had a different form of punch ? How could the plaintiff read the meaning of that punch ? Most probably he considered it a private mark of the conductor, and then modesty or propriety, if not. want of time, would forbid him to inquire about its meaning.

      “ [I have said this much, gentlemen of the jury, that you may the better understand and appreciate the principle that you are to apply. It is this, assuming the rule relied on as proved, it does not bind the plaintiff unless it was, in some way, known to him before he transgressed it.”]
    The verdict was for the plaintiff for $495. The defendants took a writ of error, and assigned the parts of the. charge in brackets for error.

      D. A. Me Coy (with whom were Me Crosby and Douglass), for plaintiffs in error,
    — cited: Dietrich v. Penna. R. R., 21 P. F. Smith 432; 1 Redfield on Railways 100 in note, 101, 102; Beebee v. Ayres, 28 Barb. 275.

      Roe Reisinger (with whom was A. B. Richmond), for defendant in error. —
    Usages are primarily for the convenience of the trade itself, and others are not bound by them, except so far as they know and may be presumed to accept them: Zemp v. W. & M. Railway, 9 Richardson 84; 2 Redfield on Railways 232, sec. 13; Powell v. P. R. R. Co., 8 Casey 414; Angell & Ames on Corporations 381: Great Western R. Co. v. Goodman, 12 C. B. 313; Chenney v. Boston and Maine R. R., 11 Metcalf 123. The passenger having done no unusual or negligent act in stepping from the car while the train was standing still, and his being left, purely an accident, his non-compliance with the rule was no fault of his. And when he took passage on the next train, had not the conductor full power, and was it not his duty in the emergency, to have accepted the plaintiff’s ticket ? O’Donnell v. Allegheny Valley Railroad Co., 9 P. F. Smith 239.
    November 4th 1872,
   The opinion of the court was delivered, by

Agnew, J.

— This case was heard and decided by the learned president of the court below, before the decision of this court, at Harrisburg in May last, in case of Deitrick v. The Penna. R. R. Co., 21 P. F. Smith 432. The principles there ruled govern the question before us, and require a reversal of the judgment below. A ticket such as that printed in our paper-book imports upon its face no right to stop off, or in other words to make the journey, between the points named in it by stages, and by different trains. It is simply a ticket from the station called Miller Farm to Oil City, and imports nothing but a single and continuous trip. If a privilege of stopping off and continuing the trip at a subsequent time and by a different train exist, it is only by the rule or sufferance of the carrier, who having commenced the performance of his part of the contract of carriage has a right to pursue it to completion. This shows that the argument that notice of the terms of the rule permitting the passenger to stop and get upon another train must come from the company, is unsound. As the ticket imports a continuous passage, the company having undertaken and commenced its performance, it is evident that it lies on the passenger holding such a ticket to inquire whether a rule to suffer him to change the terms of his ticket exists, and what are the conditions of the exercise of the privilege. He must ask for his stop-off, and exercise the privilege upon the conditions imposed; and this is usually by obtaining a stop-off ticket, to be presented to the conductor of the next train. Of course we must be understood as treating of a case such as that before us, where no custom or general license of the company has been shown. This license to stop off at pleasure is sometimes given by some companies, or given upon certain trains. The effect of such a license, it is not our purpose now to treat of. But to hold that the passengers on every train have a right to stop and get on at pleasure, and that they are not bound by the terms of getting off unless notice can be shown by the company, would in effect take the government of their trains out of the hands of the company. This subject has been so fully discussed in Deitrick v. Penn’a. R. R. Co., we shall not pursue it further.

Judgment reversed, and a venire facias de novo awarded.


author: Thompson, C. J.

text:
    Leonard and Wife versus Parker et al.

    1. A suit was against three, “ the court being satisfied” that the name of fourth defendant was omitted by mistake, on motion of plaintiff, added the fourth without notice to him. Held that previous notice was not essential.
    2. Under the Act of May 4th 1852 (Amendments), the only question is whether there be an omission or mistake.
    3. Such inquiry involves the ascertainment of whether the name to be added appears to have connection with the subject of the suit.
    4. If the name be added without notice, the party must be brought into court by an alias or a rule to appear and plead.
    5. A name having been added without notice to the party, it was stricken off subsequently for that reason. Held to be error, and the name ordered to be, re-inserted.
    6. The presumption is that the name had been added upon cause shown and within the Act of Assembly.
    October 28th 1872.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Armstrong county: No. 126, to October and November Term 1872.
    On the 27th of January 1865 a writ in ejectment was issued, in which Reuben Leonard and wife were plaintiffs, and Fullerton Parker, Greorge Parker, William Morrison were named as defendants.
    On the 10th of February an appearance was entered for Morrison, Connelly and Greorge Parker. On the 6th of March the following order was made:—
    “ On motion of J. Boggs, the court amend the record in this case by adding the name of James W. Parker as a defendant, the court being satisfied that his name was omitted in the precipe by mistake of the counsel.”
    On the 27th of March a rule was taken on the plaintiff to file their abstract of title, and on the 12th of June the abstract was filed. March 5th 1866 the defendants’ attorneys suggested the death of Connelly, and his heirs were substituted as defendants.
    On the 26th of November 1869 the defendants’ attorneys obtained a rule to show cause why the amendment making James W. Parker a defendant should not be taken off, and his name stricken from the records. Depositions were taken by both parties for the hearing of the rule, and on the 12th of July the court (Jenks, P. J. of the 18th district) made the rule absolute, and the name of James W. Parker was stricken off.
    The plaintiff took a writ of error and assigned for error the order making the rule absolute.

      J. Boggs and S. A. Purviance, for plaintiff in error,
    cited Acts of March 21st 1806, sect. 6, 4 Sm. L. 329 ; May 4th 1852, sect. 2, Pamph. L. 574 ; 1 Br. Purd. 68-70, pl. 1, 3, relating to amendments ; Horbach v. Knox, 6 Barr 377; Walthour v. Spangler, 7 Casey 523; Kaylor v. Shaffner, 12 Harris 489. Under the Act of 4th of May 1852, parties to an action, whether plaintiffs or defendants, may be struck out or added, whenever such amendments are necessary to a trial on the merits, and whenever the rights of a party are liable to be defeated by having joined too many plaintiffs or defendants, these amendments may be made. In such circumstances the fact of mistake will be presumed if, without them, the merits may not be fully tried: Rangler v. Hummel, 1 Wright 130; Hite v. Kier, 2 Id. 72; Jackson v. Lloyd, 8 Id. 82; Schollenberger v. Seldonridge, 13 Id. 83; Ritcher v. Cummings, 10 P. F. Smith 441. A party shall not lose his rights by reason of mistake, either in law or fact; and where an amendment is made in such case, the presumption is that the court below were legally satisfied of the mistake: Wilson v. The Mechanics’ Saving Bank, 9 Wright 488; Cochran v. Arnold, 8 P. F. Smith 399; Musser v. Gardner, 16 Id. 242.

      JEI. S. Cfolden, for defendants in error.
    — This being a question in the discretion of the court below, whether amendments shall be made in the first instance, or, if inadvertently allowed, whether they shall be rescinded, is not the subject of review in this court: Commonwealth v. Hultz, 6 Barr 469; Mishler v. Commonwealth, 12 P. F. Smith 55. Notice to J. W. Parker was indispensable: Thompson v. Stitt, 6 P. F. Smith 156 ; Gardner v. Post, 7 Wright 19; Locke v. Daugherty, Id. 88; Wright v. Hart, 8 Id. 454; Stout v. Stout, Id. 457; Trego v. Lewis, 8 P. F. Smith 463; Hartshorne v. Mercer, 6 P. L. J. Repts. 152.
    November 14th 1872,
   The opinion of the court was delivered, by

Thompson, C. J.

— The plaintiffs commenced an action of ejectment for the land mentioned in the writ, on the 27th of January 1865, against Fullerton Parker, George Parker, William Morrison and Michael Connelly, and there was an appearance for the last three on the 10th of February 1865. On the 6th of March following, the plaintiffs’ counsel discovering that he had omitted the name of James W. Parker, whom he intended to embrace in the writ as a defendant, in transcribing his precipe, applied to the court for leave to amend under the Act of Assembly of the 4th May 1852, by adding his name. The court being satisfied of a mistake granted leave, and the name was added. On the 27th of the same month defendants’ counsel ruled the plaintiffs to file an abstract of title, which was accordingly done on the 12th June 1865. Thus the case stood, with the exception of the introduction of the heirs of M. Connelly, who had become deceased, until the 26th November 1869, when, on motion of defendants’ counsel, a rule was granted upon the plaintiffs to show cause why the amendment allowed in adding the name of James W. Parker should not be revoked, and his name stricken from the record as a defendant. This rule was afterwards, on the 12th of July 1872, made absolute.

The plaintiffs took testimony to show that the amendment was allowed to correct a mistake and supply an omission. This was clearly shown, but was a work of supererogation, as the act of the court was presumably upon cause shown, and within the Act of Assembly. There was no testimony on the part of Parker to show that it had been improvidently made. Indeed it is questionable whether, had there been, it could have been made to appear here. . But it is alleged that the amendment was made without notice to Parker. It seems to me that this was not essential at this point. The action of the court was only with the view to correct the omission of a name necessary to a full trial of the cause on the merits — to have all proper parties on the record. Had the rule to show cause been served on Parker, and he had offered to resist the amendment, it would have most likely had the effect of making him a party without any process or rule to bring him in. I cannot see how he could have prevented the amendment if he had had notice, unless by satisfying the court of what is not pretended here, that he was an entire stranger to the land in controversy. The Act of Assembly says that the “ courts shall have power in any stage of the proceedings (in actions) to permit amendments by changing or adding the name or names of any party, plaintiff or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party.” It has been often done. See authorities cited by plaintiffs’ counsel. The only question in such an application is whether an omission or mistake has occurred, and of course this inquiry would necessarily extend to the ascertainment of the fact whether the name proposed to be added appeared to have a connection with the subject of the suit. If so, and omitted by mistake, then the amendment would be proper, and no considerations of superior right or title to the thing in controversy in the party can prevent it. That is the fact to be tried when the party is on record. When the name is added, if without previous notice or appearance to the rule, of course the party must be brought into court by an alias summons, or perhaps by a rule to appear and plead. This done, the party added is thenceforth a party to the record, and his rights are to be affected from the time he is thus fully in court, as in cases of parties originally summoned.

James W. Parker having boen regularly introduced as a party defendant, we cannot see any good ground in anything alleged in argument for striking him out. His own affidavit, undoubtedly looked at in the court below, shows a good reason for making him a party. He claims in it the entire property in controversy, and that he is in possession of it. But that is, strictly speaking, not before us, and the defendant can claim no support from it here. We have then nothing to justify the court in striking out the defendant’s name at his own instigation, and against the opposition of the plaintiff who had it added on the ground of omission by mistake. The idea was suggested on argument, that if the name be not stricken out the defendant will be deprived of the effect of the running of the Statute of Limitations in his favor. A consideration of that kind would not do as a ground for striking out the amendment, for peradventure the plaintiffs might be able to show an entry that would toll the statute, or an acknowledgment of title within the bar of the statute or the like. At least they ought to have an opportunity to do so if they can. All such considerations were out of place on this motion: they are necessarily reserved for the subsequent action of the court and jury.

Seeing nothing to justify the court helow in striking out the name of James W. Parker as defendant in this case, the order for the same is reversed, and it is ordered that the name be reinserted, and the record is remitted for that purpose, and that the case be proceeded in as the case stood before the name of James W. Parker, defendant, was stricken out.


author: Sharswood, J.

text:
    Steele versus Lineberger et al.

    1. A scire facias sur judgment was issued against several, judgment was rendered against some of the defendants by default, and in favor of others, on the plea of “ nul tiel recordHeld that the latter were entitled to costs v against the plaintiff.
    2. Statutes in pari materia are to bo construed together and the legislature is presuméd to have former statutes before them and to have known their judicial construction.
    3. The courts of Pennsylvania do not construe statutes giving costs as penal, but as compensating parties for expenses in defending against unjust claims.
    4. Statutes 23 Henry 8, c. 15 ; 4 Jac. 1, c. 3; 8 and 9 Wm. 3, c. 2 (Costs), compared and construed.
    5. Lane ». Harrold, 16 P. P. Smith 319; Maus v. Maus, 10 Watts 87, remarked on. 0

    October 29th 1872.
    Before Thompson, O. J., Read, Agnew, Shaeswood and Williams, JJ.
    Error to the Court of Common Pleas of Armstrong county: Of October and November Term 1872, No. 68.
    To June Term of the Court of Common Pleas Mary A. Steele issued a scire facias sur judgment against John Lineberger and wife and S. 0- Steele and wife; also against A. L. Campbell and a number of other defendants.
    Appearances were entered for Lineberger and wife and Steele and wife by one attorney, and by another attorney for A. L. Campbell. No appearance was entered for the other parties.

      The appearing defendants pleaded “ Nul tiel record,” payment, &c.
    On the 4th of June 1868, a jury having been called, the attorney for Campbell withdrew his appearance, and judgment was taken by default against all the defendants but Lineberger and wife and Steele and wife. A jury was sworn between the plaintiff and them. On the same day, after argument, judgment was entered by the court in favor of'those defendants against the plaintiff, on the plea of “ Nul tiel record,” and the jury was discharged.
    These defendants filed their bill of costs, which was finally taxed at $429.08, and the court (Logan, P. J.) on the 27th November 1871 “ ordered that the plaintiff pay the costs of the defendants, in whose favor the judgment was entered on the plea of “ Nul tiel record.”

    The plaintiff took a writ of error, and assigned this order for error.

      JS. S. Grolden, for plaintiff in error,
    cited Maus v. Maus, 10 Watts 87; Stat. 8 & 9 Wm. III. cap. 11, Roberts’ Digest 140; 28 Henry VIII. cap. 15, sect. 1, Id. 121; 4 Jac. I. cap. 3, Id. 129.

      J. Grilpin (with whom was J. Boggs), for defendants in error,
    cited Haskins v. Low, 5 Harris 64.
    November 15th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

— At common law no final costs were recoverable by either plaintiff or defendant. The right to them depends, therefore, entirely upon statute. In Dibben v. Cooke, 2 Strange 1005, and Queen v. Danvers, 1 Salk. 194, it was considered as settled by older decisions, that under the English statutes prior to 8 and 9 Wm. III., c. 2, if one of several defendants is acquitted, he is not entitled to his costs, the courts having construed, under the principle of construction to be presently adverted to, those statutes where they used the word “ defendants ” to intend only the case of a total acquittal all the defendants. It was to remedy this to some extent that the Statute of 8 and 9 Wm. was passed. This court has decided, in Maus v. Maus, 10 Watts 87, that the first section of that statute, Roberts’ Digest 140, which provides that where several persons are made defendants, and any one or more of them shall be upon the trial acquitted by verdict, every person so acquitted shall recover his costs, only applies to the actions enumerated in it, namely: trespass, assault, false imprisonment or ejectione firmce, and not to a proceeding by a scire facias to revive a judgment. This section in words only includes the case of an acquittal by verdict, and the previous Statutes of 23 Henry VIII., c. 15, Roberts’ Digest 121, and 4 Jac, 1, c. 3, Roberts’ Digest 129, which gave costs to defendants in all forms of action, is also in like manner confined to nonsuits and verdicts. However, the 2d section of the statute 8 and 9 Wm. III. enacts that in any form of action, whenever upon any demurrer judgment shall be given by the court against the plaintiff, the defendant shall have judgment to recover his costs against such plaintiff. Now, there is no reason why the old decisions upon the statutes of Henry VIII. and Jac. I., that where there were many defendants they intended only a total acquittal of them, should be held to govern in the construction of this 2d section. It was a very strict and literal adherence to the mere words, and certainly against the spirit and equity of the enactments, and, with all due respect to those ancient authorities, be it said, seemed manifestly to infringe upon the maxim, Qui hceret in litera, hceret in eortiee. But while these former statutes make use of the words “ defendant or defendants,” this 2d section of the statute 8 and 9 Wm. III., carefully, and, it would seem, designedly, uses only the word defendant ” in the singular number. All statutes in pari materia are to be construed together, and the legislature is therefore always to be presumed to have had former statutes before them, and to have been acquainted with the judicial construction of them. It would not be easy to assign any other reason to explain why the language of the former acts was thus studiously changed, than that it was meant to make a difference. It was intended either that the case of an action against several defendants should not be included in the purview at all, or that defendant meant any defendant. There are many reasons, as we shall see presently, for preferring the latter construction. This conclusion is confirmed in view of the decisions referred to above, and the provisions of the first section, which, although applicable only to particular actions, were clearly intended to remedy the mischief produced by these decisions. Why the legislature, while confining the case of the acquittal of some defendants by verdict to particular forms of actions, chose in judgments upon demurrers to extend the enactment to all actions, it is unnecessary, perhaps, to inquire except as tending to illustrate the general course of the old authorities upon the subject, of costs. In this v]pw, the proviso to the 1st section will throw considerable light upon the question. By that it is declared that the rule, that where some of the defendants are acquitted they shall recover costs, notwithstanding a verdict against others, shall not apply where the judge, before whom the cause shall be tried, shall, immediately after the trial, in open court, certify upon the record under his hand, that there was a reasonable cause for the making such person or persons a defendant or defendants. It is very evident that the legislature regardéd the imposition of the defendant’s costs upon the plaintiff, not, as we have come in process of time, and especially in this state, to consider it, as a matter of justice to the defendant to compensate him for the necessary expenses to which he has been injuriously subjected by a proceeding ascertained upon trial to be unfounded in fact or in law, but as a punishment upon the plaintiff for his vexation. But though the title of the statute in question is “ An Act for the better preventing frivolous and vexatious suits,” yet the preamble went much further, and declared that it “ was for the relief of his majesty’s good subjects against causeless and unjust suits, and for the better enabling them to recover their just rights.” Yet so rigidly were these statutes construed as penal statutes, that in Dibben v. Cooke, 2 Stra. 1005, the. Court of King’s Bench held that an action of trespass on the case was not an action of trespass within the statute, and refused costs to some defendants acquitted by verdict, a judgment by default having been taken against others: “ Considering these acts giving 'costs,” said Lord C. J. Hardwicke, “have always been looked on as penal acts not to,be extended by equity.” In the actions enumerated in the statute, being ex delicto, if the plaintiff recovered against any of the defendants, and had reasonable ground, as found and certified by the judge who presided at the trial, to make those acquitted parties, he was relieved from the penalty ; for his action could not be considered as vexatious. In other forms of action, being mostly those in form ex contractu, it would be different, for there in joint actions, unless the plaintiff show a good cause of action against all,- he could not recover against any, and if it so happened that some escaped, it could only be by reason of a defence personal and peculiar to them, such as infancy, coverture or bankruptcy; and it would not require a judge’s certificate in such case to ascertain that the plaintiff had a reasonable ground for including them as defendants in his writ. There was no more reason, therefore, in this than in the case where the judge certified that the plaintiff should be mulcted in costs. When they come, however, to provide for judgments on demurrer, it is evident that there could be no reasonable, because no legal, ground for making persons defendants in whose favor the cause had been decided, and therefore the provision was general that any defendant should have his costs whenever a judgment on demurrer was rendered against the plaintiff in any form of action. Indeed, this very reason is given for a decision which strongly illustrates the strong leaning of the English courts against awarding costs' against a plaintiff, even where the very words of the statute gave them. In Thomas v. Lloyd, 1 Salk. 194, it was held upon the construction of this very 2d section of the statute of Wm. III. that it didn’t apply to judgments on demurrer to pleas in abatement, but only to demurrers to pleas in bar. “ It speaks,” say the court, “ of suits which are vexatious, which does not appear to the court on pleas in abatement, but on demurrers in bar, where the court sees the merits of the cause, it does.”

That the courts in this state do not proceed upon the notion that the statutes giving costs are penal statutes to be strictly construed, but have adopted the more wise and just policy that they ought to be largely and liberally interpreted so. as to do complete justice by compensating parties, who have been obliged to incur ^necessary expenses either in prosecuting just and lawful claims, or in defending themselves against unjust and unlawful ones, may be seen by the whole current of our decisions upon our own Acts of Assembly upon the subject. It is the true spirit of the legislation of this state. Upon the construction too of the English statutes, wherever not precluded by express authority, the same principle has been recognised. In Lane v. Harrold, 16 P. F. Smith 319, where in ejectment the defendant pleaded “not guilty,” and when the case was called for trial she disclaimed title to all but an undivided fourth of the land; the judgment was for the plaintiff for three-quarters, and for the defendant for one-quarter, it was held that the plaintiff should recover his costs to the time of the disclaimer and the defendant her costs afterwards. After referring to the provision of the statute Jac. I., that where any verdict happens to pass by any lawful trial against the plaintiff or plaintiffs, the defendant or defendants should recover costs, Thompson, C. J. remarks, “ by a fair interpretation of the statute we think the defendants were entitled to their costs. The plaintiff had a verdict against him on his claim for the land in contest, and is within the spirit of the act, if not within its precise terms, and ought to pay costs. This I regard as largely within the practice in this state, if not wholly so, and so we understood it in Tripner v. Abrahams, 11 Wright 220.”

Applying then this principle of a fair and liberal, in contradistinction to rigid and literal, interpretation to the provisions of the 2d section of the statute in question, we think that the spirit and equity of it require us to hold that a judgment upon the issue raised by a plea of nul tiel record is within its purview. Both a judgment upon a demurrer and a judgment upon that issue are pronounced by the court without the intervention of a jury. The reason is, that as a record proves itself, all that is necessary when it is put in issue is for the court to decide by inspection whether the record produced is that set forth in the proceeding, or variant therefrom, or is a record at all of binding effect as declared on or pleaded. There could be no reasonable ground for making any persons parties defendants, who did not appear by the record to be bound by it, and d fortiori not where on the trial no record, or none of binding force, is produced. No reason, therefore, even on the principle applied by the English courts in the construction of this section, exists, why the plaintiff should not be mulcted for his unlawful and injurious vexation of any of the defendants, though he may by default obtain judgment against others. The judgment that there is no such record as that declared on or pleaded shows that there was no just cause of action against any of the defendants. If we consider the case in hand — a scire facias to revive the lien of an alleged judgment against the original defendant and others made defendants as terre-tenants of the land alleged to be bound by it, it becomes still more palpably unreasonable to hold that a' judgment on such an issue in favor of some of the defendants, that there is no such judgment, and, therefore, no such lien, should not avail to give them costs against the plaintiff, though he may have obtained judgment against the original defendant or some of the terre-tenants; for having parted with the land they may no longer have any interest to take defence; yet the result shows conclusively that if they had so taken defence the determination must have been in their favor. The rule is well settled in England that when one of the several defendants lets judgment go by default, and the other pleads a plea which goes to the whole declaration and shows that the plaintiff had no cause of action, if the plea be found for the defendant who pleaded it, he shall have costs, and being an absolute bar, the other defendant shall have the benefit of it, and shall not pay costs to the plaintiff: see Brightly on Costs 98, and the authorities cited there. If this were not the rule it is plain that all that a plaintiff need do in order to protect himself from paying costs to the defendants in case he should not succeed, would be to make some friend a defendant, who would suffer judgment to go against him by default.

From the examination I have been under the necessity of giving to this case I have been led to the conclusion that an Act of Assembly to consolidate and simplify the whole law upon the subject .of costs in different actions and legal proceedings is much needed, and if some gentleman of the bar, of sufficient practical experience, would prepare such an act for consideration and adoption by the legislature, it would confer a great service on the profession, the courts and the public.

Order affirmed.


text:
    Irwin et al. versus Bidwell et al.

    1. Parties may become liable as partners: 1. When they are actually partners by agreement. 2. When, not being partners or entitled to a share in the profits, they hold themselves out as partners by acts or declarations, on the faith of which they are trusted. 3. When by agreement they are to receive a share of the profits, not a commission on profits, — or a sum equal to a certain share of profits as compensation for services.
    2. A loan on usury to one, to be employed in his business, does not make the lender a partner.
    3. A mortgage to a partner on partnership property for capital invested, puts him in no better position than without it.
    4. Such partner has a lien as against his fellow ; as to partnership creditors it would not avail. o
    5. Bidwell agreed, September 2d 1867, to lend Jones $10,000, to negotiate at their cost §5000 of paper for Jones, and to protect it on renewal till January 1st 1870; Jones to repay the §10,000 and take up the paper before January 1st 1870, to pay Bidwell 30 cents for every barrel of oil refined by him; Jones’s stipulations to be secured by mortgage to Bidwell, Jones to keep accurate accounts of oil refined, not to lease or encumber the refinery, nor pursue a speculative business; to have the entire control of the business ; the posting of the books to be by a person satisfactory to Bidwell, and be open to his inspection; Bidwell, if he elected before January 1st 1870, to become a partner, then the §10,000 and §5000 to be partnership capital; the partnership to date from September 1st 1867, and continue to January 1st 1870, Bidwell during that time to participate in the profits less the 30 cents per barrel received before the election; Jones to receive §2000 salary; upon winding up Bidwell to receive the capital advanced and his proportion of the profits and be subject to losses: until election no partnership to exist. Bidwell did not elect. Held, Bidwell was not liable to creditors as partner of Jones.
    6. An agreement to become partners at a future time will not make the parties partners.
    7. An inchoate partnership must be complete before liability can attach.
    October 15th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: Of October and November Term 1870, No. 180.
    This was an action of assumpsit brought December 9th 1868, by James Irwin and William Holmes, trading as James Irwin & Co., against Oliver B. Jones, D. W. C. Bidwell and Henry Phipps, Jr., trading as O. B. Jones.
    Judgment for want of an affidavit of defence was taken against Jones; the other defendant filed an affidavit of defence and pleaded, “Non assumpsit,” “No partnership with leave, &c.”
    The action was for goods sold and delivered. There was no question as to the delivery of the goods to Jones at the Duquesne Oil Refinery, the only question in the case was whether the other defendants were partners of Jones.
    The case was tried December 16th 1869, before Kirkpatrick, J. The plaintiffs gave in evidence the following article of agreement:
    • “Articles of agreement entered into this 2d day of September, in the year of our Lord 1867, between D. W. C. Bidwell and Henry Phipps, Jr., * * * of the one part, and Oliver B. Jones of the other part, witnesseth:
    “ That the said parties of the first part have agreed to and with the said Jones, for and in consideration of the sum of $1 to them in hand paid by the said Jones, * * * and of the payments, conditions and covenants of the said Jones hereinafter set forth, * * * to loan to him, the said Oliver B. Jones, the sum of $10,000, and to negotiate, at their proper cost and expense, the commercial paper of the said Oliver B. Jones, to the additional amount of $5000: the said sum of $10,000 to be paid by the said Jones, on the 1st day of January, A. D. 1870, and the said commercial paper of the said Jones, to the amount of $5000, or the renewal of the same, to be protected by the said parties of the first part, until the 1st day .of January, A. D. 1870, at which date the said Jones is to take up the said commercial paper.
    “In consideration whereof, the said Jones covenants to and with the said parties of the first part, * * * that he will pay to them the said sum of $10,000, on or before the 1st day of January, a. d. 1870, that he will lift the said commercial paper, that he will pay to them at the beginning of each quarter, commencing on the 1st day of January, A. D. 1868, the sum of thirty cents per barrel for every barrel of oil refined at his oil refinery, known as the Duquesne Oil Refinery, situate * * * from the 1st day of September, a. D. 1867, until the 1st day of January, A. D. 1870; provided that the said royalty or sum of thirty cents per barrel shall not be paid on any oil refined at said refinery in excess of 20.000 barrels in any one year ; that he will, upon the receipt of said sum of $10,000, and of the proceeds of said commercial paper, clear of discount, execute in favor of the said parties of the first part, a bond, conditioned .to repay to the said parties of the first part, the said sum of $10,000 to lift and take up the said commercial paper, for $5000 or its renewal, on the 1st day of January, a. D. 1870, to pay to the said parties of the first part, at the beginning of each quarter, commencing on the 1st day of January, A. D. 1868, the sum of thirty cents per barrel, upon every barrel of oil refined; * * * the said bond to contain clauses for commissions, to provide that upon failure to pay the said royalty or sum of thirty cents per barrel in quarterly payments, as aforesaid, or in thirty days after any quarter shall have expired, the whole of said bond to become due and payable; said bond to be secured by mortgage of the ground and works of the said Oliver B. Jones, known as the Duquesne Oil Refinery, situated * * * said mortgage to contain the clauses and provisions aforesaid.
    “And the said Oliver B. Jones further covenants, that he will pay to the said parties of' the first part the said royalty * * * that he will keep accurate accounts of all oil refined by him, and furnish to the said parties of first part copies thereof once every three months, or as often as may be desired by the said parties of the first part, and that in default of the payment of the said royalty or sum of thirty cents aforesaid, and the copies of the accounts as aforesaid, a scire facias on said mortgage, shall issue for the recovery of the said royalty * * * on the basis of a production of 20.000 barrels per annum, in addition to the other sums mentioned in said mortgage.
    “ That he will not sell, lease or encumber the said refinery or discontinue the operation of the same, until after the 1st day of January, A. D. 1870.
    “ That he will not pursue a speculative business nor contract to sell refined oil without having first secured the crude material for the manufacture of the same, nothing herein contained however, to interfere with the exclusive control of the said Jones with the said business, which is to be conducted in the same manner as he has heretofore conducted the same under the limitation aforesaid.

      “ That he will immediately open a new set of books to be kept by double entry, the original entries of which may be made by the said Jones, but the posting thereof shall be done by persons satisfactory to the said parties of the first part, and said books shall be open to the inspection of the said parties of the first part at all times.
    “ The said Jones further covenants and agrees, that the said parties of the first part may, on or before the 1st day of January, A. D. 1870, elect to become partners with him in the said business to the extent of three-tenths interest, and in the event thereof, the said sum of $10,000 cash aforesaid, and the further sum of $5000, proceeds of the commercial paper aforesaid, shall be treated as capital of the partnership, the said parties of the first part to lift and return the said, commercial paper to the said Jones, the said partnership to date from the 1st day of September, A. D. 1867, and to terminate on the 1st day of January, a. D. 1870, the said parties of the first part to participate in the profits during the term of partnership to the extent of three-tenths, less the said royalty or sum of thirty cents per barrel, before the election received. He, the said Jones, in the event of such partnership, to receive from the business of said partnership as salary the sum of two thousand dollars per annum, from the 1st day of September, A. D. 1867. And upon the winding up of the affairs of said partnership, the said parties of the first part shall be entitled to receive in cash out of the partnership effects, the amount of capital advanced by them and their proportion of profits, if any, subject névertheless to partnership losses.
    “ That upon the election of the said parties of the first part, to become partners as aforesaid, notice thereof in writing shall be given to said Jones, and until said notice of such election is given, no partnership between the said parties exists, or shall exist by virtue of this agreement, anything herein contained to the con-" trary thereof notwithstanding.
    “ And the said Oliver B. Jones further covenants and agrees, that he will keep a line of insurance on his refinery and the .buildings connected therewith, of six thousand dollars, which he will assign to them, the said D. W. C. Bidwell and Henry Phipps, Jr., said insurance to be taken out at the expense of said Jones, and will take out additional insurance on additional improvements to be assigned as aforesaid.
    “ That he will also keep up a line of insurance on his refined oil, kept at the said refinery, equal to an average amount so kept, and will assign to Bidwell & Phipps so much thereof as the interest therein may amount to under this agreement. And he does further, as part of the consideration under this agreement, hereby assign, transfer and set over unto the said Bidwell & Phipps all the residue of said last-mentioned insurance, in case of loss by fire, and does hereby constitute the said Bidwell & Phipps his true and lawful attorneys for him, and in his name to collect and receipt i the said last-mentioned insurance; and does hereby agree to execute such instruments of writing as may be necessary to effectuate this covenant; the proceeds of such last-mentioned insurance to be applied, in the discretion of the said Bidwell & Phipps, either to the rebuilding of the refinery aforesaid, or to the reduction of the indebtedness of the said Jones to them as herein set forth.”
    On the 14th of September and 17th of October 1867, Jones received from Bidwell and Phipps the $10,000, and on the 17th of October, Bidwell and Phipps received from Jones his mortgage of that date, reciting the agreement, and conditioned as was stipulated therein.
    The plaintiffs’ points were:—
    1. The articles of agreement, dated September 2d 1867, in evidence as having been executed and carried into effect, constituted the parties thereto partners as regards creditors, and that the defendants, D. W. C. Bidwell and Henry Phipps, Jr., are liable, with O. B. Jones, to the plaintiffs for the amount of their respective claims.
    2. Secret agreements, whereby one party advances capital or funds to be used in a manufacturing venture, and reserves the right to take interest for the use of the funds or to take a share of the profits, as he may deem most advantageous to himself, is, as against creditors of the said business, contrary to public policy, and the legal effect of such an agreement is to make the parties thereto partners and liable for the debts of said business.
    3. Under the pleadings and evidence, the plaintiffs are entitled , to recover.
    The defendants’ points were :—
    1. The evidence offered by the plaintiffs is insufficient to constitute the defendants, Bidwell & Phipps, partners with O. B. Jones, as to the plaintiffs or other third persons, or charge them as such partners, and the plaintiffs are not entitled to recover against Bidwell & Phipps.
    2. Under all the evidence in this cause, the verdict of the jury should be in favor of defendants, Bidwell & Phipps.
    The court reserved the questions of law presented by the respective points of plaintiffs and defendants, and directed the jury to find for the plaintiffs, subject to the decision of the court on the said questions of law reserved.
    The jury found for the plaintiffs for $3196.51.

      The court (Kirkpatrick, J.) afterwards entered judgment for the defendants non obstante veredicto.

    The plaintiffs took a writ of error, and assigned for error the entry of judgment for the defendants.

      Gf. Shiras, Jr., for plaintiffs in error.
    — A right to an account, a right to participate in the profits, when accompanied with an active and positive control and management of the affairs of a business, create a partnership.
    The object of the limited or special partnership acts was to modify the rules of commercial law in favor of a party who should advance a certain sum of money and refrain from transacting any business, on account of the partnership. The slightest departure from the provisions of the statute will render the special partner a general one : Richardson v. Hogg, 2 Wright 153.
    One who is a partner in fact, though not known to be so, is liable upon all the partnership engagements, to the same extent as though his name had never been concealed: Hoare v. Dawes, 2 Douglas 371; Edwards v. Tracy, 12 P. F. Smith 374; Winship v. Bank of United States, 5 Peters 561; Grace v. Smith, 2 W. Black. 998; Purviance v. McClintee, 6 S. & R. 259; Parsons on Partnership 141, 142.

      S. Sehroyer, Jr., and J. I. Kuhns, for defendants in error.—
    An agreement for a loan of money, which gives the creditor making the loan a right, within a certain period, and in a certain manner, to elect to become a partner with his debtor from the date of the loan, and convert his debt into partnership stock or capital, does not make him a partner as to third persons from the date of the loan, where no such election has been made, and where there is an express provision that until such election has been made in the manner stipulated no partnership shall exist, and where the credit has been given to the debtor alone, and the creditor has not in any way -held himself out as a partner : Gabriel et al. v. Evill, 9 M. & W. 295; Howell v. Brodie, 6 Bingham N. C. 44; Dickinson v. Valpy, 10 Barn. & Cr. 128; Fox v. Clifton, 6 Bingham 776.
    October 21st 1872,
   The opinion of the court was delivered, by

Sharswood, J.

— There are three classes of cases in which parties may become liable to third persons as partners: 1st, When they are actually partners inter se by express agreement. 2d, When not being partners inter se, or entitled to any share of the profits, they hold themselves out to the world as such by acts or declarations, and the particular creditor who sues trusts them as partners on the faith of such acts or declarations. 3d. When there is an agreement to receive a share of the profits as such and not a mere commission on profits, or a sum equal to a certain share of the profits, as a compensation for services.

It has not been, and cannot be, maintained that the facts of this case bring it within either of the two first classes. If there were any acts amounting to a holding out to the world as partners, there was no evidence that the plaintiffs gave credit to the defendants upon the knowledge and faith of such acts. Nor was there here any agreement to participate in the profits. The written contract by which Jones undertook to pay Bidwell and Phipps thirty cents a barrel upon every barrel of oil refined at his refinery had no relation whatever to the profits of his business. That agreement, considering the stipulated sums as a compensation for the advances made by Bidwell and Phipps, was clearly usurious, and could not have been enforced beyond the lawful rate of 6 per cent, per annum on the amount of the loan. Nothing can be more manifest than that a loan at an usurious rate of interest to a person to be employed in his business does not make the lender a partner: Parsons on Partn. 141, 142. Supposing, however, the objection of usury to be out of the way, and the agreement not to be affected byjhat taint, Bidwell and Phipps were entitled under its terms to thirty cents upon every barrel of oil refined, whether the business in which Jones was engaged and in which the money was to be invested turned out to be a profitable or losing one. Nor had they any right to call for an account other than of the number of barrels refined, nor had they any equity or lien superior to that of any other mere creditor of Jones by virtue of that stipulation. Had he proved insolvent (apart from their mortgage security) they must have come in pro rata with all his other creditors, whether for debts contracted in carrying on that business or on any other account. If this be so, and we think that it clearly is so, then the other provisions of the contract relied on do not alter the case. Certainly the bond and mortgage, which were mere securities for the advance, cannot change their relation from that of creditors to partners. A mortgage on partnership property to a partner for capital invested puts him in no better position than he is without it. Subject to partnership debts he has such a lien as against his partner, and as to partnership creditors it would not avail him. The provision for insurance on the stock, and the assignment of the policies to the creditors, is not an uncommon one, and is intended merely as further security. So the provisions regulative of the conduct of the business that Jones should not pursue a speculative business nor contract to sell refined oil without having first secured the crude materials for the manufacture of' the same. These, as well as the stipulation that the posting of the books should be done by persons satisfactory to Bidwell and Phipps, and that they should be open to their inspection, were evidently intended for their better security as creditors. We do not say, for the evidence in the case does not render it necessary, that if all these' provisions had been known to Irwin & Co., the plaintiffs, and it had been shown that they gave credit to the defendants as partners on the faith of them, it would not have been such a holding out to the world as partners as would have made them liable as such.

Had the consideration of the contract been anything else than an advance of money to be invested as capital in the business, the idea that it created a partnership would hardly have occurred to any one. Had Bidwell and Phipps undertaken to render their personal services in the business, to be paid for at so much per barrel of oil refined — had they been producers of oil and sold their crude products to Jones to be paid for in the same way — had they been the owners of the store in which the business was carried on, and demised it for a rent or consideration to be ascertained by the amount manufactured or sold — the case would not have admitted of an argument, for authorities in abundance could have been produced which settle it. A landlord who demises to a tenant on the shares — who lets a tavern or a colliery — as well as a clerk or salesman who gives his attention and services on the same terms, have often been decided not to be liable as partners: Parsons on Partn. 144; Heckert v. Fegely, 6 W. & S. 139; Dunham v. Rogers, 1 Barr 255; Perrine v. Hanninson, 6 Halst. 181; Putnam v. Wise, 1 Hill 284; Blue v. Leathers, 15 Illinois 81; Chase v. Barrett, 4 Paige 148 ; Bowyer v. Anderson, 2 Leigh 550; Tibbatts v. Tibbatts, 6 McLean 80.

It only remains to advert to the argument founded on the supposed effect of the stipulation in the contract by which Bidwell and Phipps had the option to become partners at any time before January 1st 1870. If they should so elect, their advances weye then to be considered as capital invested by them from the beginning, and they were to participate in the profits to the extent of three-tenths, and to be liable for debts and losses. Upon what principle this could make them partners before they actually exercised the option by electing to become members of the firm, it is not easy to comprehend. An agreement between parties to become partners at a future time will not make them such; an inchoate partnership must be complete before liability can attach, as has been expressly ruled in Howell v. Brodie, 6 Bingh. N. C. 44, 87 English Common Law Rep. 272, and the very point in the case of such an option as was here reserved was decided in Gabriel v. Evill, 9 Meeson and Welsby 295; in which Lord Abinger said : “ The defendant clearly was not a partner until he had exercised the option given him of declaring himself such. He never had a right to an account of the profits of the concern.”

Judgment affirmed.