author: Mr. Justice Gordon

text:
    Lichty, Administrator, versus Hochstetler.
    1. Where a scire facias issued to revivo a judgment within five years from the entry of the judgment, the lien thereof continues for five years from the issue of the scire facias, although no service was had on either the defendant or terre-tenant.
    2. An alias scire facias may he served on the terre-tenant and the judgment revived against him at any time-within five years from the date of the issue of the first scire facias.
    October 27th 1879.
    Before Sharswood, C. J., Merotjr, Gordon, Trunkey and Sterrett, JJ. Paxson and Green, JJ., absent.
    Error to the Court of Common Pleas of Somerset county: Of October and November Term 1879, No. 201.
    This was a proceeding by Samuel Lichty, administrator of Daniel Beachy, deceased, to revive a judgment of said Beachy against Jonathan J. Weller, without notice to Adam Hochstetler, terre-tenant.
    On February 27th 1872, a judgment was entered in the Common Pleas against Weller, at the suit of W. B. Humbert, to the use of Daniel Beachy. The latter died, and letters of administration were granted to Lichty. On February 2d 1877, the death of Beachy was suggested, and Lichty was substituted as plaintiff, and on the same day a scire facias issued to revive the judgment, with notice to all the terre-tenants, and on the 18th of February was served on Weller, the defendant, alone. On the 6th of April 1878, an alias scire facias issued, which was served on Hochstetler and other terre-tenants. There were no facts in dispute. The court below, Hall, P. J., directed a verdict for plaintiff, reserving the question of law : “ Whether the scire facias, issued 2d February 1877, with the alias scire facias issued 6th April 1878, are sufficient to continue the lien against the land in the possession of the terretenants, to be determined on a motion to enter judgment non obstante veredicto in favor of the defendants terre-tenants.”
    Subsequently upon a motion by Hochstetler for judgment for defendants non obstante veredicto, the court, inter alia, said:
    “ The object of the act is to give record notice to purchasers by compelling a judgment-creditor to obtain a judicial notice of his lien once in every successive period of five years. The writ of scire facias must be issued within five years, and it must be prosecuted with reasonable diligence to judgment. In every case the judgment must be obtained within the five years, or another scire facias would seem to be necessary to give the record notice required by the Act of 1827.
    “In the case at bar, fourteen months having elapsed, and five terms having been suffered to intervene after the return of the scire facias before the issuing of an alias to bring in the terre-tenants by service, we think the case is ruled by the authority of Westmoreland Bank v. Rainey, 1 Watts 26, that there was want of due diligence, and that the lien is lost as to the land in the hands of the terre-tenants, and accordingly we direct judgment to be entered in favor of the terre-tenants, non obstante veredicto.”

    The plaintiff took this writ and assigned this action for error.

      Wm. H. Koontz, for plaintiff in error.
    The statutes regulating the revival of judgments, and the Acts of April 4th 1798 and March 26th 1827, continue it for five years, only from day of entry or revival. By judicial construction of the Act of 1798, a scire facias was not required to be issued where an execution was issued within a year and a day, and the lands levied upon, as that was held to preserve the lien: Young v. Taylor, 2 Binn. 218; Commonwealth v. McKisson, 13 S. & R. 144. The Act of 1827, provides, that it shall only be for five years from the rendering of such judgment, notwithstanding an execution was issued. There is another change which was made by the Act of 1827, as to the period in which the plaintiff is bound to prosecute his scire facias to judgment. Under the Act of 1798 the question was raised in several cases as to what constituted due diligence in prosecuting the scire facias, but the Act of 1827, and the decisions thereon, we contend, fix the diligence required by the plaintiff in getting a judgment upon the scire facias within five years from the issuing thereof.
    The cases relied upon by the court below are, Westmoreland Bank v. Rainey, 1 Watts 26, and Vitry v. Dauci, 3 Rawle 9. A careful éxamination of these cases will show that they have no resemblance whatever to the case now before the court. The question as to what constitutes due diligence is fixed by the ruling in Meason’s Estate, 4 Watts 344, and is also recognised in Silverthorn v. Townsend, 1 Wright 266, that “ where a scire facias is issued to revive the judgment, the lien is continued for five years and no longer. The law does not recognise the possibility, when due diligence has been used, that the plaintiff can fail to obtain a judgment of revival within the period of five years; and what is due diligence is indicated by the act, viz:: having a judgment of revival within that time.”

      Baer & Baer, for defendants in error.
    We admit that a scire facias, issued on the last day will suffice, if followed by a return of tarde venit, and the issuing of an alias scire facias in reasonable time, serving it as required by statute, and then prosecuting it to judgment within five years. But the sheriff, if he had the writ in time, so as to preclude a return of tarde venit, had but one of two ways to return it. Either the writ, as returned, must show it to have been served upon the person or persons named in the act; or, that the land was not in the immediate occupation of any person, and that the defendant or defendants, his or their feoffees, or their executors or administrators could not be found: Westmoreland Bank v. Rainey, 1 Watts 33. If the land is occupied by any one the writ must be served.
    The terre-tenant is the principal party, and service and return as required by the act are indispensable. The provisions of the act as to service on the terre-tenant are peremptory, while as to service on the defendant they are merely directory: Lusk v. Davidson, 3 P. & W. 229.
    Something more is required than the mere issuing of a scire facias within five years. It must be followed up by a return tarde venit, if issued too late, or, if in time, by a return as required by the Act of Assembly to same term. ’ If so much is done, and all the virtue of the soire facias has not been expended, an alias may issue, not at any time within five years, but in a reasonable time, and then prosecuted to judgment within five years : Westmoreland Bank v. Rainey, supra; Vitry v. Dauci, supra; Davidson v. Thornton, 7 Barr 129; Meason’s Estate, 4 Watts 344; Silverthorn v. Townsend, 1 Wright 266.
    November 24th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

Judgment was entered in the Common Pleas of Somerset county against Jonathan J. Weller, at the suit of William B. Humbert, for the use of Daniel Beachy, on the 27th day of February 1872. On the 2d day of February 1877, a scire facias to revive this judgment, with notice to all terre-tenants, was issued and served on the 13th of the same month, on the defendant in the judgment alone. Afterwards, to April Term 1878, an alias was issued, which was served on Adam Hochstetler ot al., as terre-tenant.

On this condition of the record, the question was, whether, as to the terre-tenants, the alias writ was in time. The court below held, in answer to this question, that the scire facias must not only issue within the five years prescribed by the act, but that it must be prosecuted with reasonable diligence, and that the suffering of fourteen months to elapse from the service of the writ on the defendant to the issuing of the alias against the terre-tenants, was not an exhibition of due diligence, and therefore entered judgment, non obstante veredicto, for those tenants. This ruling seems to have been founded on the case of the Westmoreland Bank v. Rainey, 1 Watts 26. This case arose under the Act of 1798, and although the scire facias and alias were issued after the passage of the. Act of 1827, the argument is based wholly on the provisions of the previous act. On the first writ there was a return of nihil habet, and the alias was issued five terms after this return; this was held to be too late; that the delay was unreasonable; that the Act of 1798 not only directs the time within which the scire facias shall be issued, but how it shall afterwards be served and upon whom; and in ease the land be unoccupied, and the person or persons on whom it is ordered to be served are not to be found, then proclamation shall be made in open court at two succeeding terms; and in case of either a service of the writ or proclamation, the judgment of revival, unless sufficient cause be shown to prevent the same, must be entered “ at or before the same term subsequent to the issuing of the writ.” It was held, that this was an express limitation of time, within which the judgment of revival must be entered, unless sufficient cause be shown to prevent it. It was on this ground that the alias was held to be too late; that the delay was unreasonable. However applicable this reasoning may have been to the provisions of the Act of 1798, it certainly does not apply to those of 1827; for, as -was shown by Mr. Justice Rogers, In Re Meason’s Estate, 4 Watts 341, and as will also appear by the act itself, the issuing of the scire facias alone, without the entry of judgment, will continue the lien for five years from the date of such issue. And upon the question of what is due diligence, he says: “ The law does not recognise the possibility, when due diligence has been used, that the plaintiff can fail to obtain a judgment of revival within the period of five years; and what is due diligence is indicated by the act, viz., having a judgment of revival-within that time.” But in Silverthorne v. Townsend, 1 Wright 263, Mr. Justice Strong says that this was so under both the acts above mentioned; hence, where a judgment had been entered on the 23d of January 1851, scire facias to revive sued out August 1855, returned nihil as to the defendant, and “served” on the terre-tenant, it was held, that had there been no other scire facias, the lien of the judgment would have been continued five years from the day on which the first writ was issued. When speaking of the alias which was issued to bring in the defendant on the 7th of April 1858, the learned justice says: “ If, then, the alias scire facias, instead of being an abandonment of the first writ, was a prosecution of it, the land was not discharged from the lien of the judgment.”

It may be urged, however, that this case is not in point in that' the terre-tenant who was the one who made defence was served with the writ within the statutory time; but we may observe, from the general principles upon which the opinion is based, that the substitution of the defendant in the original judgment for the terretenant could make no difference, for the ruling was that the issuing of the scire facias within the five years continued the lien, not only as to the tenant who had been served, but also as to the defendant who had not been served. It is, therefore, clear that the substitution of the one for the other could have made no change in the result, since each had the same right to notice. But the case of Davidson v. Thornton, 7 Barr 128, is directly in point, for there the first writ was issued without naming a terre-tenant and returned tarde venit; another scire facias was issued after the five years had expired, and without reference to the first. To this objection was made, that as the terre-tenant was not named in the first writ, and as it was returned without service on him, the subsequent process would not connect him with it, or be carried back by' an alias to the day of its inception. To this it is answered by Gibson, O. J.: “ We must remember, however, that we have to deal with a Statute of Limitations, and that if the originating process issued a single day within the time, it saves the bar, whether the party to be affected have notice of it or not.” He also says further on: “It is the better practice not to name the terre-tenant in the writ, but to direct the sheriff to name him in the return; and the plaintiff having thus proceeded is in no default; consequently, if the officer was remiss in his duty, he alone is responsible for it. But to whom ? Not to the terre-tenant, who is in no worse condition than if he had been served.”

Further than this it is not necessary for us to proceed, for from the decisions above recited, we have seen that the Acts of 1798 and 1827 are statutes of limitations; that if the process issues a single day within the time it saves the bar; that with this process, though not named in it, the terre-tenant may be connected by an alias, and that the time, the reasonable time, within which this may be done, is the statutory period of five years. Nor is there in this any hardship imposed upon the terre-tenant, for buying, as he does, subject to the judgment, by resorting to the dockets, he can always ascertain its exact condition.

Having thus arrived at a conclusion different from that of the court below, we direct that the judgment be reversed, and that a judgment be entered on the verdict for the plaintiff.


source: Caselaw Access Project

license: Public Domain

text:
    Shattuck versus Haworth.
    1. The word “ fraud,” as used in the 33d section of the Bankrupt Law of 1867, means positive fraud or fraud in fact.
    2. S., with the money and for the account of H., purchased certain oil certificates, which were to be delivered to H. upon payment of storage charges. Under the instruction of H. the oil and the certificates were several times transferred, accordingly as the market rose or fell. It was the custom of the trade, in their dealing with oil and certificates, that the parties intrusted therewith should have absolute control of the capital used, and in pursuance of this custom the money or certificates were deposited in bank by S. in his own name. H. directed S. to sell one certificate and loan three, and the money realized from the sale and as security for the certificates was thus deposited as usual. The bank failed, and after demand, II. sued S. in trover for the certificates. S. pleaded his discharge in bankruptcy, which the court overruled. Held, that this was error; that S. was guilty neither of the actual fraud contemplated by the 33d section of the Bankrupt Law nor even of constructive fraud.
    October 23d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Venango county: Of October and November Term 1879, No. 59.
    Trover and conversion, by John W. Haworth against L. L. Shat-tuck, for four oil certificates.
    The material facts were these:
    In the years 1876 and. 1877, Richard L. Irwin and Leander L. Shattuck were engaged in buying and selling petroleum for third persons, for a commission, and in taking charge of petroleum for other persons, to transact such business as might be necessary relative thereto, and among other things for the purpose of paying storage, called by the trade “freshening.” The actual oil was not in their possession, but it. was represented by accepted orders of pipe-line companies. In the language of the petroleum trade they were known as “ oil brokers.” On the 2d of February 1877, John W. Haworth delivered to Irwin, a United Pipe-Line accepted order calling for one thousand barrels of crude petroleum, and received a receipt for the same, signed by Irwin, in the firm-name of Shat-tuck & Irwin, specifying that the firm held the certificate for Ha-worth, and agreeing to deliver the same to him on demand upon the payment by Haworth of the storage that Shattuck & Irwin might advance for him. On the 27th of February 1877, Haworth delivered to Shattuck similar accepted orders for two thousand barrels of petroleum, in addition to the one thousand previously given, and received a similar receipt, signed by Shattuck, by the firm-name of Shattuck & Irwin. Irwin lived in Pleasantville, six miles from Titusville, and Shattuck lived in the latter place, and had the active management of the business. Irwin sent to his partner, Shattuck, the certificate for one thousand barrels, so that Shattuck had in his possession the three certificates, representing three thousand barrels of crude petroleum. On the 16th of June 1877, Haworth sent to Shattuck, at Titusville, in a letter, still another accepted order for one thousand barrels of petroleum, and in the letter instructed him to loan all the certificates he had in his hands for the purpose of saving fire loss and storage charges. By other letters Haworth had theretofore, instructed Shattuck to sell his certificates in the manner known in the jargon of the trade as “ spot,” and to make contracts for future delivery of the same amount of oil, so sold, known as “seller’s options.”
    Among other letters were the following:
    “ Pleasantville, Pa., June 14th.
    Major Shattuck:
    Buy me from three to five thousand options buyers the year any place from $2 to $2.10. Howard offered them yesterday less, and if spot should run up to $2 sell against them, or if it goes to 95, if you think it is going back, sell at 95; use your own judgment; but I think it is a good time to take some options, unless there is something new struck at Bullion, then it would be better to sell spot. If you get me some options, and spot should run up so you could cover even the 95, do the best you can, just as if you was doing for yourself, and no reflections.
    Yours respectfully,
    J. W. H.”
    “Pleasantville, Pa., June 16th.
    Major:
    I wish you would loan out whatever certificates you may have of mine, and also this one I send you. I am afraid of fire. Loan them subject to your call, if spot runs up a little I will sell them. I have not heard anything from you for a few days about options. Bumstead told me that they were offered at Oil City the day I told you to buy them at 8f and 10c. I wish you would try to get me some at $2.10, or thereabouts. Post me whenever you hear anything.
    J. H. W.”
    As the holders of the certificates were required to pay the storage charges and fire loss assessments made by the pipe-lines according to the system of general average, Haworth instructed them to loan the certificates for the purpose of avoiding the charges and assessments, which they accordingly did, taking as security for them the prevailing price in money at the time of the loan, and these moneys and all others realized' by them out of these transactions, which were chiefly managed by Shattuck, were by him placed in bank in his own name.

      On June 14th, in pursuance of the instructions of the letter of that date, Shattuck sold one of Haworth’s certificates as spot oil against outstanding options, at the same time selling some of his own in the same manner. What Haworth’s portion sold for was not specified, but it was included in $11,021 deposited by Shattuck on that date in the Exchange Bank. And following the instruction of the letter of June 16th, he loaned the remaining three certificates on June 20th, reserving as security for the loan, $4625. This money he deposited on June 21st in the Exchange Bank. These deposits were as usual in his own name. The bank failed, and on June 22d its doors were not opened, nor has it since resumed. On that day, Haworth demanded his oil, and in answer Shattuck informed him of the facts, and that the money was in the Exchange Bank. Subsequently, in answer to Haworth’s inquiries, Shattuck informed him that he had placed the money in bank to his own credit, and the oil also. - Thereupon Haworth sued the firm in trover to recover the certificates, and Irwin dying pending the suit, proceeded against Shattuck alone.
    At the trial the defendant offered to prove “that Irwin had an arrangement with the Pleasantville Bank for a credit there on account of this business, by which money was to be deposited there subject to check on account of the business of Shattuck & Irwin, and the circumstance the plaintiff relies upon, that the money was deposited to an overdrawn account, would amount to nothing, because they had money there at Pleasantville.”
    The court rejected the offer.
    “ The defendant offered to follow the .evidence already in, and in connection therewith, with evidence that said money was deposited in the Exchange Bank of Titusville, in his own name, according to the custom of trade and the course of business with the plaintiff, known to him, and in such transactions the plaintiff became and is indebted to him and the estate of his deceased copartner in about the sum of $500.”
    Plaintiff objected to so much of said offer as proposes to prove a custom of trade for brokers to deposit money of their principals in their own name.
    By the court: — We reject so much of the offer as includes the offer to' prove a custom of brokers to deposit money of their principals in their own name, especially as in this case it appears that the money — as appears by the testimony of the defendant — that the money he had deposited — the proceeds of the plaintiff’s oil, was deposited to his own credit to an overdrawn account.
    The plaintiff submitted the following point, which the court affirmed :—
    If the jury believe that Shattuck, acting as broker or agent for Haworth, took the certificates in controversy belonging to Haworth, and loaned or sold them without disclosing that they were not his own property, but dealing with them as his own, and deposited the money received for them to his own account in bank, the said account being at the same time overdrawn, this was a conversion of said certificates to defendant’s use, and he is liable to plaintiff for the value of them, as of the date of said conversion with interest.
    The defendant submitted the following points :
    1. If the jury believe from the evidence that the plaintiff, on or about June 16th 1877, instructed the defendant to loan three of the-oil certificates referred to in the declaration, and sell the other pursuant to instructions, and the defendant did loan and sell them in accordance with the custom of the trade, and received the sum of about $6525 as security for said loans and for said sale, which sum he deposited on the day of its receipt, to wit, June 21st 1877, in the Exchange Bank of Titusville, and the said Exchange Bank failed on the 21st day of June 1877, and did not open its doors for business on that day nor since, these facts did not constitute a conversion of said certificates by the defendant, and the plaintiff cannot recover in this action.
    2. If the jury find from the evidence that the defendant followed the instructions of the plaintiff and loaned and sold the oil certificates referred to in the declaration, and received money therefor, which he deposited in the Exchange Bank, this action cannot be sustained.
    3. If the jury believe from the evidence that for several months prior to June 22d 1877, the defendant had been buying, selling and loaning oil certificates for the plaintiff, and transacting the incidental business connected with these acts in his own name, and that this was known to the plaintiff; and that on or about the 21st day of June 1877, the defendant, in pursuance of instructions from the plaintiff, loaned a,nd sold the pipe-line oil certificates, and received the sum of about $6525 as security for said loan and for said sale, and deposited the same in the Exchange Bank of Titus-ville, and that on the day of said deposit defendant had an arrangement with said bank by which he had deposited collateral security with it, and that his checks were to be honored until notice from the bank to the contrary; and should also find that the Exchange Bank failed and closed its doors the next day after such deposit, and the defendant never received any part of the money he had deposited, and did not deposit it with the intention of paying his own debt, even though the account was overdrawn, and the collateral not sufficient to cover such overdraft, then there is no evidence of actual fraud, and the defendant’s discharge in bankruptcy is a complete bar to this action, and the verdict must be for the defendant.
    These three points the court answered as follows:—
    “ These points assume as proven facts and theories deduced from such facts, of which there is no sufficient evidence to submit to the jury, and the other statements therein contained, while true, do not contain the whole truth, as conceded by both parties from the evidence. The court declines to answer the above stated three points as requested.”
    In the general charge, the court, inter alia, charged:—
    “ But really, we will say to you that the developments in the case show Shattuck not to be a broker in any legitimate sense of that -word; he is a mere speculator. In this case he was not a broker in this transaction in any legitimate sense of the term. I do not know,what the other brokers in this Exchange are, whether they are entitled to the name of brokers or are mere speculators with their own money or the money of other persons, and cannot bring-themselves within any legitimate definition of brokers or claim any of the ordinary rights of brokers. * * *
    “ A broker, when he undertakes to act for another, ought to disclose the name of his principal, or disclose if he is acting in the capacity of a broker, agent or factor. * * *
    “We say to you, if you believe the evidence as detailed by witness, and in one sense of the word- there is not very much discre.paney between the testimony of the parties, except as to the authority; if you believe that evidence, Shattuck is guilty of conversion of this property to his own use. * * *
    “ One portion of the evidence, that tends to show that it was a conversion, and a fraudulent conversion in fact, was in taking the proceeds and paying his own debt with it to the Exchange Bank. * * *
    “ Now it is alleged on the part of the defence, that although this account was overdrawn $7000, he still had credit with the bank. It does not appear in evidence that Shattuck had the right to draw to an unlimited amount upon that bank, or rather to draw checks till the bank told him to stop. Hoag said they had collateral for his overdrafts, and he could get any collateral he had that exceeded his overdraft; but it nowhere appears, if the court understands the testimony, that he was authorized to overdraw any collaterals he had there. * * *
    “ Now it is also alleged that Mr. Shattuck was simply doing what was the custom of the trade, that he, not only did that, but that he was authorized by Haworth to sell or to loan. There is a letter in evidence of the 16th June 1877. It looks towards an authorization on the part of Haworth to loan. But it seems to have been an authorization to loan for Mr. Haworth, and if the defendant loans for himself or uses the proceeds for himself, it is still a conversion because he has not followed the instructions, and as to the failure of this hank, causing this loss or causing a failure upon the part of Shattuck to repay or to recompense Haworth his loss, or for the non-return or non-delivery of the oil certificates, we fail to see how that affects the question at all, because at the time the bank failed Shattuck was still overdrawn some $7000 and the collaterals were insufficient to pait.” * * *
    “ If you believe the evidence of Haworth and Merrick, sufficient demand was made to authorize the bringing of this suit.” * * *
    “ Now you will recollect Haworth and Merrick both testified. Haworth himself testified on the day of the failure of the bank he asked Shattuck for his oil certificates ; Shattuck put him off from time to time. He says he asked for them three times and when the news of the failure of the bank came Shattuck said he had loaned three thousand and one thousand still remained in the bank. I believe he afterwards told Merrick so. That is all, however, for you, and it tends to show the mala fides of this defendant. * * *

      “ We have it that he received about $2500 from the officers of the bank; whether to keep quiet or not we do, not know; he received $2500 as his share of the margin on the advance of oil after the overdraft had been paid. There was certainly then $2500 of the proceeds of the-plaintiff’s own oil that he received which he had failed to account for these oil certificates, enough, to say nothing of what he was to be accountable for, growing out of the transaction; after all these occurrences he receives $2500 which was the legitimate proceeds of Haworth’s loan.”
    Yerdict for plaintiff for $7279.73, when defendant took this writ, and alleged that the court erred in rejecting the above testimony; in the answers to the foregoing points, and the portions of the charge above set forth.

      Roger Sherman and c. Heydrick, for plaintiff in error.
    A factor with unlimited powers to sell and loan accepted pipe-line orders for oil of his principal, for money, in the manner customary in the business, and according to his own judgment, who does sell and loan them in the manner directed, cannot be held to have wrongfully converted the property into money: Cooley on Torts 442, 448, 449, 450; Everett v. Coffin et al., 6 Wendell 604; Sargeant v. Blunt, 16 Johns. 73; Dufresne v. Hutchinson, 3 Taunt. 117; Jenner v. Joliffe, 6 Johns. 9; Lockwood v. Bull, 1 Cowen 322; Etter v. Bailey, 8 Barr 442; Wagenblast v. McKean, 2 Grant 393; Bunting v. Dessau, 9 Phila. R. 31.
    Whether defendant was a factor or a broker he was clearly entitled to show that the custom of those doing the business he was engaged in, was to deposit the money received for their principals, and buy and sell without disclosing the names of said principals.
    The Bankrupt Act expressly provides for a discharge from a debt or obligation growing out of the taking and converting of goods by the debtor. It makes no difference, therefore, that the plaintiff below brought an action of trover. The form of action determines nothing, and we must look only at the character of the debt. We contend there was no evidence of actual fraud, and nothing from which an inference of fraud could lawfully be drawn: Chapman v. Forsythe, 2 Howard 202; Grover & Baker v. Clinton, 8 Nat. Bank Reg. 312; Cronan v. Cotting, 104 Mass. 245; Neal v. Clark, 5 Otto 704; Hennequin v. Clews, 19 Albany Law Jour. 477.

      Dodd & Lee, for defendant in error.
    It is true the certificates were properly in the possession of Shattuck, and that he was authorized to loan them for Haworth, but when he disposed of them for his own benefit, or deposited them as collateral for his own debt, he made a wrongful and Unauthorized conversion of them. Trover will lie for certificates: Neiler et al. v. Kelley, 19 P. F. Smith 403; Norlin v. Kidder, 54 Me. 187; Graves v. Smith, 14 Wis. 5; Coffin v. Anderson, 4 Black. 395; Hart v. Skinner, 16 Vt. 138; Tallman v. Turck, 26 Barb. 167.
    Clearly Shattuck’s discharge in bankruptcy did not release him from liability on this claim. Bankruptcy is no bar to an action of trover: Hughes v. Oliver, 8 Barr 426. “No debt created by fraud or embezzlement of the bankrupt, or while acting in any fiduciary character, shall be discharged,” is the plain language of the act.
    November 10th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

In the case of Neal v. Clark, 5 Otto 704, it is ruled, “ That the word ‘ fraud,’ as used in the 33d section of the Bankrupt Law of 1867, which provides that, ‘ no debt created by the fraud or embezzlement of the bankrupt, or by defalcation of a public officer, or while acting in a fiduciary capacity, shall be discharged under this act,’ means positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, and not implied fraud, or fraud in law, which may exist without bad faith or immorality.”

Applying this rule to the case in hand, we are obliged to disagree with the court below in overruling the defendant’s plea of a discharge in bankruptcy. There is, so far as we can see, no evidence of an intentional fraud, a design to cheat the plaintiff out of the proceeds of his oil certificates. The head and front of Shat-tuck’s alleged offending is, that he deposited the certificates in bank, to his own instead of Haworth’s credit, and so, as it is said, converted them to his own use. This, however, was’ only a question of how he should have conducted the business with which he was intrusted. The plaintiff alleges that the certificates and their proceeds should have been deposited to his credit; not that there was any contract so to do; not that Haworth directed that it should be so done, but because the character of the agency was such that legally the business should have been so conducted. Admit that this statement of the case is correct, and that Shattuck’s act in depositing the certificates to his own credit, or that of his firm, was a violation of a legal duty, it by no means follows, as the learned judge alleges, that this, of itself, constituted a fraud in fact, for it may have been intended only as a convenient method of disposing of the business he had in hand, or it may have resulted in an ignorance of his duty, and in either of the cases supposed, though it might constitute a legal or constructive fraud, it would not constitute an actual fraud, or fraud in fact, such as comes within the 33d section of the Bankrupt Act.

But we cannot see how, legitimately, the question even of constructive fraud is raised from the evidence in this case. There was a loss, to be sure, but it resulted from no evil intent or action of Shattuck, but from the breaking of the bank, and we cannot understand how the plaintiff would have been benefited had the money and certificates stood on the bank’s books in his own name; at best it was but water spilled upon the ground, it could not be gathered again; it was lost, but lost by the fault of neither of the parties contestant.

Looking then at the evidence what do we find ? The purchase by Shattuck & Irwin of certain oil certificates for the plaintiff, and which they agreed to hold for him and deliver to him on demand. So far as we can learn these certificates were never passed by endorsement, or otherwise, to Haworth, but remained in the possession and power of Shattuck & Irwin.

They were negotiable; made so by the Act of May 15th 1874. Hence the meaning of this transaction was that this company should use this paper as-to them might seem proper, and upon demand made by the plaintiff, deliver to him, not these identical certificates, but certificates of a similar character and amount. If, then, this is the true meaning of the contract, it follows, of course, that if this paper was deposited in bank at all it must go to the credit of Shattuck & Irwin, for if it was indorsed to Haworth, and passed to his credit, that would be a delivery and an end of the contract between the parties. This, however, was not designed. For if Shattuck was a speculator so also was Haworth; he did not buy this, oil for the purposes of trade, but to sell, and, with its proceeds, buy again as the market might rise and fall; it was in this' way he intended to make money upon his investment. But in order to do this he must have some person who was engaged in the business to handle his capital for him; for this reason he did not take a transfer of the certificates sold to him by Shattuck & Irwin, but allowed them to remain in their hands. In pursuance of this same design, he writes to the defendant under date of April 5th, * * * “ Buy me two thousand; use your own judgment. * * * Keep me posted and buy one or two when you think best, and no reflections.” So on the 16th of the same month: “ Every body seems to think its going lower, so we will work on small margins; sell then; when it drops 5c., pick up.” Again, on the 8th of June : u I think it a good time to get options. * * * You keep watch of them, and when you think she has struck the bottom, get me some.” Also, June 14th : “Buy me from three to five thousand options, buyers, this year, any place from $2 to $2.10. * * * if spot should run up to $2, sell against them, or, if it goes to 95, if you think it is going back, sell at 95; use your own judgment; but think it is a good time to take some options, unless there is something new struck at Bullion, then it would be better to sell spot. If you get me some options, and spot should run up so you could cover even the 95, do the best you can, just as if you was doing for yourself, and no reflections.”

Again, June 16th, some five days before the Exchange Bank closed, he writes : “ I wish you would loan out whatever certificates you may have of mine and also this one I send you. I am afraid of fire. Loan them subject to your call; if spot runs up a little I will sell them.” From the above it is manifest that the power of the defendant was most ample to sell, buy and loan ; all of which he did. The plaintiff’s capital, upon which this business was founded, was three thousand barrel certificates of the United Pipe-Line, mentioned in the receipts of Shattuck & Irwin of February 25th and 27th 1877. But in order to obey the instructions above written, if the defendant were to buy options, to sell in orders to cover, or meet, these options, to loan subject to his own call, he must have the absolute control of the certificates and of the money realized from them. For the plaintiff to say to Shattuck, sell, buy, loan on your own call and on your own judgment, and at the same time to expect that the certificates and money, hypothecated for the loans, should go into bank to the credit of himself, the plaintiff, involves ideas so utterly inconsistent with the ordinary rules governing such business as to be incredible.

As we have said before, had the original certificates been endorsed over to the plaintiff, that would have been an end of Shat-tuck’s power, and it would have been vain to have told him to sell that over which he had no control. Just so with the loans, the character of which Haworth seems to have well understood, for he says : “ I understood if the broker loaned certificates and took the money at the market price, by tendering this money, he could redeem the certificates,” and in the same connection he says Shattuck told him he had loaned his certificates at $1.58. Now, if the defendant was not to retain this money in his own name, to have it in such a shape that he could draw on it when the certificates were to be redeemed, why direct him to loan subject to his own call? His call without the money to give it force would certainly not be an effectual one. And this matter the plaintiff understood just as well as any one else. He says, in answer to the question: “ What do you suppose he did with the money when he loaned your certificates?” “I suppose he took care of it; probably put it in the bank; never asked him anything; he never told me he put it into the bank to my credit; I told him to be careful of my certificates and not lose them or their proceeds.” And again; to the question : “ When he had money to pay, how did you suppose he got that money?” “I supposed when he would sell he would have some money again, and when he would buy again he would buy with that money.” Nothing more than this is necessary; it is an epitome of the whole transaction. Shattuck was to buy and sell, use the property and money, as in his own transactions, and account to Ha-worth for the final proceeds. His orders from his principal were : “ Do the best you can, just as if you were doing for yourself, and no reflections." So it turns out that so far from Shattuck’-s having committed an actual, intentional fraud, such as would deprive him of the benefit of his certificate in bankruptcy, he has not even committed a constructive one. When the bank closed and shut out both him and the plaintiff, he was just where he had previously been ; in the full discharge of the duties imposed upon him by his contract with the plaintiff.

Judgment reversed, and a new venire ordered.


author: Per Curiam.

text:
    Duff versus Allegheny Valley Railroad Co.
    1. A person riding on the train of a railroad company in violation of the regulations of the company, with or without the knowledge of the company’s employees, cannot recover damages for injuries received while so riding.
    2. A boy was permitted by a conductor to ride on the train of a railroad company, to sell newspapers, in violation of the regulations of the company, and was killed by an accident. Held, that the boy was a mere trespasser, and the company was not liable.
    October 24th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Venango county: Of October and November Term 1879, No. 124.
    Case by Thomas H. Duff and Mary M. Duff, his wife, in right' of said wife, against the Allegheny Yalley Railroad Company to recover damages for the death of James Cordell, a son of Mrs. Duffy, by a former husband, which lad, it was alleged, was killed by the negligence of the defendant company.
    The facts are sufficiently stated in the opinion of the court below, Church, P. J., of the Thirtieth Judicial District; the material portions of which were as follows:—
    “ You now come to another question which is the more serious question of all. Railroad companies being common carriers are under duty to carry passengers in safety. It is their duty to have such road-hed and machinery (rolling-stock as it is called) as to enable them to carry passengers safely, and that the latter shall not lose their lives or their limbs. This is also their duty in a more limited sense as to their employees. The latter duty is not as great as the former.
    “ An employee cannot recover unless the employer has been guilty of such gross negligence and gross wrong as would be implied from this state of affairs. For example, an employer is bound to furnish safe and sound mechanical appliances about which the employee is to work. A railroad company, so far as its duty to its employees, is bound to furnish safe and suitable cars, engine and track. They are not bound to guard them against any negligence on the part of their fellow employees. This is shown in the distinction between the passenger and the employee. But it is alleged that the boy, for whose death this suit is brought, was neither an employee of defendant nor a passenger on their road.
    “ It appears from the evidence that the fireman on this train running regularly between Oil City and Brady’s Bend, going down the road in the morning and back again in the afternoon, was a young man by the name of Scott, who was a step-brother of this deceased, who was about fifteen years old when he first went into the business he was engaged in when he met his death. This fireman contrived or arranged with the conductor of the train, or of his own motion he procured a verbal permit for this step-brother of his to ride upon this train and sell newspapers. This seemed to be a sort of passive acquiescence on the part of the conductor. It is in evidence that the conductor had no authority to let any person ride upon the road without paying fare. It is in evidence that this boy did not pay fare. It is also in evidence by the rules of the company, that the conductor is not allowed by these rules to permit any one to ride upon a train except passengers who do pay or have paid their fare, or who have tickets or free passes signed by some of the proper officers of the company, and the conductor violates his duty if he permits any one to ride upon the train, except he is one or the other of these three classes.

      “ It is in evidence, therefore, that this boy for four or five months had, through the instrumentality in some way of the fireman, his step-brother, got on to this train and sold papers. The conductor says he had no authority to let the boy ride there, but it was by a sort of passive permission upon the part of the conductor, procured thereto by the fireman. It is also in evidence that the boy did nothing on or about the train, except sometimes he might have been asked by the conductor to light one of the lamps. It is not alleged or proven that the boy’s duty was to light lamps, build or replenish fires, or do anything else about the train. If he did any of these things he did it as a friend to the brakeman, whose duty it was to do these things. Now, if this be the case, we say to you that this deceased boy was neither a passenger, for he did not come within that category by having paid his fare, having a ticket or free pass, nor was he an employee of the defendant; but being on that train as stated he was an intruder or trespasser, not, of course, that he was a wilful trespasser, in that he had used force, but that he was an intruder or trespasser upon the train in that he was a stranger to it and was where he had no lawful business to be; and we say to you that if this boy was on the train as a trespasser without authority from any one having power to give it, plaintiff cannot recover damages, except for intentional injury or very gross negligence, and then probably not from the company but from the person causing the damage. If a person is invited on a train by some employee of the company not having the supreme control in that department of the company’s business, but it is at the time out of the range of his employment, and the person invited is injured whilst so on the train, the company is not liable.
    “ ‘ Where, by the rules of the company, the engineer and fireman are prohibited from taking any one on the engine, except the conductor of the train or the agent having control of that branch of the company’s business, and the engineer and fireman permit a man to ride, or invite him on to the engine, it is out of the usual course of the company’s employment, and if the person so invited is injured through carelessness, ‘ the company is not responsible. The reason a right to recover exists is because the company comes under some duty to the person which makes the protection necessary.’ We cannot see where the company came under any duty to this boy under the circumstances of the case; and the words we have quoted above are approved by the Supreme Court. You are to take the law of the case from the court. If we are wrong, the Supreme Court will set us right.
    “ This boy is said to have been a bright, active boy, say fifteen and one-half years old, and had been in and around the train for six months. He knew a great deal about the train and its employment. If he was there by the invitation of the fireman, permitted by the conductor, for the purpose simply of pursuing his own employment, and without the authorization of the company’s superior officers, then he was an intruder and stranger upon the train, and the company came under no obligation to him, and his mother cannot recover in this action, The reason recoveries are allowed to be had against corporations is because they owe a duty to the passenger for the consideration of the fare paid, but in the absence of fare paid or invitation from the superior officer, to wit, the free pass, the company has neither expressly or impliedly agreed to carry such person safely.
    “ We believe this to be decisive of this case if you believe the testimony.”

      The verdict was for defendant, when plaintiffs took this writ and alleged, inter alia, that the court erred in charging as above.

      Isaac Ash and James D. Hancock, for plaintiffs in error.
    If the court below is sustained, this court must reverse its ruljngs in Hydraulic Works Co. v. Orr, 2 Norris 333; Oakland Railway Co. v. Fielding, 12 Wright 320; Railway Co. v. Caldwell, 24 P. F. Smith 421.
    If the agents of the company, in violation of the rules of the company, permitted the deceased to ride, the company cannot repudiate the acts of its agents so as to free themselves from responsibility for negligence: Redfield on Railways, 3d ed., vol. 1, p. 510; Jones v. Western Vermont Railway, 27 Vt. 110; Lackawanna and Bloomsburg Railroad Co. v. Chenewith, 2 P. F. Smith 382; Powell v. Pennsylvania Railroad Co., 8 Casey 414; Idem v. McCloskey’s Administrators, 11 Harris 526.

      E. S. Golden, for defendant in error.
    The case of Flower v. The Pennsylvania Railroad Company, 19 P. F. Smith 213, is conclusive of this question. The rules of the company prohibited the boy from being upon the train, whether he was there by invitation of the conductor or the fireman. Rule No. 117, governing the conductors, is as follows: “ They will not pass any person without a ticket or pass from the proper officers of the company; and it will be considered sufficient cause for the dismissal of any conductor who shall allow a free passage to any person without having such ticket.” See also Kirby v. Pennsylvania Railroad Co., 26 P. F. Smith 506.
    It is clear from the evidence that the conductor never permitted this boy to ride upon the train, but that he was there by invitation of the fireman, who was his half-brpther. Even if the boy was upon the train colluding with the conductor, he could not recover. “ A person riding upon a train of a railroad company without the knowledge of the company’s employees, or in collusion with them or otherwise, knowingly in violation of the regulations of the road, cannot recover damages for injuries received while so riding:" Toledo, W. & W. Railroad v. Brooks, 81 Ill. 292.
    November 3d 1879,
   The judgment of the Supreme Court was entered

Per Curiam.

This was an action by a parent to recover damages for the death of her son on account of the alleged negligence of the defendants. It is clear, from the evidence, that the boy was on the train from day to day, not as a passenger or employee of the company, but by the connivance of the conductor, in order to sell newspapers. It is not like a person allowed by the conductor to ride in a car as a passenger without paying fare. In that case there is a legal liability to the company for the fare. This is the case of a mere trespasser, and the company owed him no duty. We are of opinion that the rulings of the learned judge below were right.

Judgment affirmed.


text:
    McLaughlin versus McLaughlin.
    1. A sheriff sold the land of a debtor to a judgment-creditor, who after-wards conveyed the land to the wife of the debtor. Another creditor whose judgment wan prior to that on which the land was sold, subsequently sold and purchasec. the land on his own judgment, and brought ejectment against the wife t'heiefor. Held, that the second sheriff’s sale vested no title. Held, further, that the title of the defendant was vested in the vendee at the first sheriff’s sale, and the sheriff’s deed to him not having been contested on the ground of fraud, he had a perfect right to convey to the wife of the debtor, and ci editors of the husband could not attack her title.

      2: The decl nations of a vendor after he has parted with the land cannot be received in evidence to impeach the title of the vendee.
    October 27th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunxey and Sterrett, JJ. Paxson and Green, JJ., absent.
    Error to the Court of Common Pleas of Armstrong county: Of October and November Term 1879, No. 66.
    Ejectment by Thomas McLaughlin against Mary McLaughlin, widow of Wi lliam McLaughlin. Both parties claimed under sheriff’s deeds. On "he 3d of May 1861, a judgment in favor of J. E. Willis was entered against William McLaughlin, who then owned the land in dispute. An execution issued thereon to June Term 1861, a levy was made or. the land, and the writ returned “ stayed by plaintiff’s attorney.” No written order of said attorney was attached to the writ, and no date was mentioned at which said order to stay was given. On the 30th of January 1862, pursuant to the praecipe of Willis’s attorney, a certified copy of this fieri facias was issued to the sheriff, upon which he held an inquisition, and the property was condemned, and upon the same day a vend. ex. issued, and the property was sold to Willis, the plaintiff in the writ. At the time of the sale William McLaughlin was in possession of the land, and by a written lease thereafter became the tenant of Willis until the death of McLaughlin in 1864. After his death his wife, the defendant in "his action, became the tenant of Willis, until 1869, when with her own means she purchased the land and received from Willis a deed therefor. On the 21st of March 1861, a judgment was e itered against William McLaughlin in favor of John Hildenger, :.bf use of Thomas McLaughlin. Upon this judgment a fi. fa. issued, and the sheriff levied on the land in dispute. An inquisilion was held, the property condemned, a vend. ex. issued, and the land sold to Thomas McLaughlin, the plaintiff in this action. At this sale, and before the same, Willis gave notice of his title. Thomas McLaughlin brought a former action for this land, and in April 1877, obtained a verdict therefor. A new trial was awarded, and plaintiff secured a second verdict in his favor. Judgment was entered on this verdict, and the land delivered to plaintiff by the sheriff. The defendant sued out a writ of error, and in 1878 the Supreme Court reversed the judgment of the court below,'and awarded a venire facias de novo. (See report of case in 4 Norris 317.) In February 1878, a writ of restitution was awarded, and the property returned by the 'sheriff to defendant.
    At a new trial before Taylor, P. J., of the Twenty-eighth Judicial District, various offers of evidence were rejected by the court, who in the general charge, inter alia, said:
    “ We instruct you that the first sale by the sheriff vested in the purchaser, Willis, a good title to the land. The prior judgment was entitled to the purchase-money, but the sale to Willis being the first in point of time vested the title in him, unless that sale be attacked for fraud or some other cause of which we have seen but little evidence.

      “ The plaintiff asks us to instruct you that, if the jury believe from the evidence that the original purchase of the land in dispute was made by William McLaughlin from Willis, and $100 paid upon it, and that a deed was afterward made to the wife of William McLaughlin, the present defendant, in order to hinder, delay or defraud the creditors of William McLaughlin, in that event the deed is void, notwithstanding the defendant may have paid the balance of the purchase-money, and the verdict of the jury should be» for the .plaintiff.
    “ This point, as made, answered.in the negative.
    “ The deed from Willis to the defendant, Mary McLaughlin, has been attacked by the plaintiff upon the ground of fraud. It is true, as a proposition of law, that if this deed was executed with the intent to hinder, delay or defraud the creditors of William McLaughlin, including Thomas McLaughlin, the plaintiff, as alleged upon his part, it would be void as against the interest intended to be defrauded, but it does not necessarily follow that the plaintiff is entitled to recover. The plaintiff in an action of ejectment must recover, if at all, upon the strength of his own title, and not upon .the weakness of the defendant.
    “ The question of fraud in the inception of the title of Mary McLaughlin, has little to do with the moulding of your verdict under the evidence in the cause, in our view of the law.
    “We instruct you, if you find that the sheriff’s sale under which the defendant claims, was an honest one, not tainted with fraud, it vested a good title in Willis, and your verdict should be for defendant.”
    The verdict was for defendant,' and after judgment plaintiff took this writ and alleged that the court erred in rejecting his offers of evidence, and in charging as above.

      E. S. Golden, for plaintiff in error.
    The importance of the question, to wit, the validity of the sheriff’s sale to Willis, passed upon by this court in McLaughlin v. McLaughlin, 4 Norris 317, with two judges absent, is our apology for raising it anew. We do not propose to elaborate the point, but invite the court to a review of the case upon the arguments and the opinion of McDermitt, P. J., as reported in that case.
    It will not be doubted that it was competent for Thomas McLaughlin to show that after Willis had purchased the land in dispute it had been repurchased by William McLaughlin, the original defendant, before the entry of the judgment under which the plaintiff in error claims. This for two purposes: 1. To show that the lien of the plaintiff’s judgment attached to the equity residing in William McLaughlin, in virtue of his purchase from Willis. 2. To show that the conveyance made to Mary McLaughlin was simply held in trust for the purchase of William McLaughlin’s title. And 3. That the conveyance thus made, if done to defeat the creditors of William McLaughlin and the purchaser of his estate, was fraudulent and void.
    There is no doubt but that the facts alleged could be proved by parol. The court, however, refused to allow the evidence, mainly upon the ground that the declarations of Willis were prior to the conveyance to McLaughlin, involving in the assumption itself the fact that Mary McLaughlin was a bona fide purchaser for value. This was the very question in dispute.

      J. Gilpin, for defendant in error.
    We think it unnecessary^ to cite authorities in support of the fixed principle, that a vendor’s declarations, made after he has sold, cannot be given in evidence to impeach the title of his vendee. Willis’s declarations made in 1867, more than two years after he-sold to the present defendant, were offered to be proved. There was no proof or offer to prove by any competent evidence that Willis ever sold the land to any one prior to 1865, when he articled with this defendant. The .purchase by the wife could not be in trust for her husband, William McLaughlin, for he was then in his grave.
    But suppose we admit the alleged sale by Willis to Mary McLaughlin was fraudulent. Is the plaintiff entitled even then to recover ? Is there not left, even with such an admission, a perfect outstanding title in Willis, which would defeat the present action ? It will be observed that the plaintiff does not assert that the sheriff’s sale which vested title in Willis was fraudulent.
    November 10th 1879,
   The judgment of the Supreme Court was entered,

Per Curiam.

When this case was before this court on a former writ of error (4 Norris 317), it was held that the first sheriff’s sale to J. E. Willis vested the title in him, and we are not disposed to disturb that ruling. Willis afterwards sold and conveyed to Mary McLaughlin, the defendant, the premises; and the contention in the court below was that this deed was fraudulent because intended to hinder and delay the creditors of her husband, William McLaughlin. But the deed to Willis was not contested on that ground, and if the title was in him absolutely, he had a perfect right to make a gift to Mary McLaughlin, and the creditors of her husband could not attack her title. All the title of William McLaughlin was divested by the first sheriff’s sale. The proceedings upon the judgment against William McLaughlin, and the sale upon that subsequent to the deed to Willis, could vest no title in the plaintiff. We find no error in the rulings of the learned court below upon questions of evidence. Surely the declarations of a vendor, after he has parted with the land, cannot be received to impeach the title of his vendee.

Judgment affirmed.


author: Mr. Justice Sterrett

text:
    Parker et al. versus Hartley.
    A. made certain contracts for the delivery of oil at his own option within a stated time. He deposited in a bank the counterparts of these contracts, and as security for said contracts, also deposited the checks of H., who was a depositor in the hank. These checks were made payable to the cashier of the hank “ for margin for oil sold as per contracts in the hands” of said cashier. The counterparts of the contracts were endorsed by A., to the effect that the margin was a guarantee for the fulfilment of the contracts, and with the further stipulation that if more margin was needed demand should be made on A., and if not met the contract was to be sold. The cashier also endorsed on the counterparts the receipts for the margins on the conditions therein set forth. Before the contracts matured they were settled and the margins were carried by the bank to the credit of A., who drew them out by check. H. sued the bank for the margins. Held, that the checks operated as a specific appropriation, to the extent named therein, of the drawer’s funds, to be applied by the bank solely to the payment of such sum as A. might become liable to pay, on the event of his failure to comply with the contracts, and the bank as custodian of the money for that specific purpose, had no right to appropriate it in any other way, and was liable.
    October 27th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunket and Sterrett, JJ. Paxson and Green, JJ., absent.
    Error to the Court of Common Pleas of Armstrong county: Of October and November Term 1879, No. 121.
    Assumpsit by William Hartley against James P. Parker and others, doing business as the Parker Savings Bank, to recover a balance of $6250 on plaintiff’s bank account.
    On the 16th of October 1876, R. B. Allen entered into a contract, in writing, with James S. Lowe, for the sale of 5000 barrels of oil at $3.53§, deliverable some days thereafter.

      By the practice and custom of oil dealers in that locality, upon entering into such contracts, the seller deposited in bank his counterpart of contract with money, called margins, sufficient to secure its performance. The buyer also deposited his counterpart in bank, with money sufficient to secure its performance, with the understanding that the counterpart and money deposited by either party should only be released by the consent of both, until the contract was fulfilled. In the present instance, Lowe, the purchaser, deposited his counterpart, with his margin of $1250, in the Exchange Bank. Allen deposited his counterpart, with margin, in the Parker Savings Bank.
    Allen had not of himself enough money for his margin required by his contract. He informed Hartley of the contract and of his need of margins, and requested him to furnish the money required. Hartley agreed to do so, upon condition that he should bear, or receive, the one-half of the losses or profits that should accrue on the contract. He accordingly drew his check in the following form:—
    “No. - Parker’s Landing, Pa.,
    October 16th 1876.

    Parker Savings Bank pay to order of P. McGough, cashier, twelve hundred and fifty dollars, margin on contract for 5000 barrels oil, sold S. King, per contract, in hands of said McGough.
    $1250. William Hartley.”
    This cheek Allen deposited with his counterpart of the contract of that date in the Parker Savings Bank. This counterpart had on it the following endorsements:—
    “Parker City, Pa., October 16th 1876.
    I have placed in the hands of P. McGough, cashier, twelve hundred and fifty dollars, as part guarantee for the fulfilment of the within contract; and I hereby agree to place further margin in cash, or oil, if such is required, in difference, on demand being made by buyer, within twenty-four hours after such demand is made, in writing, to R. B. Allen. If said demand is not complied with within the time, I agree to forfeit margin already up, and that this contract may be sold, without further notice, at public sale.
    “And I hereby authorize and empower the said P. McGough, cashier, to deliver the same at once and without delay to James S. Lowe, at the maturity of the contract, if I fail to fully comply with its terms and conditions. R. B. Allen.”
    “Parker City, Pa., October 16th 1876.
    I hereby acknowledge the receipt of twelve hundred and fifty dollars, on the conditions and for the purposes above set forth.
    P. McGough, Cashier,
    per Sam.”

      Some days afterwards, during the lifetime of the contract, the same was settled and adjusted between the parties thereto, Allen and Lowe. Notice of the settlement and consequent release of the margins wás given to the banks in which they had been deposited. The plaintiff in error thereupon paid to Allen, or his order, the amount of his margin.
    On the 21st day of October 1876, a like contract was entered into by Allen for the sale to one A. Frazer of 10,000 barrels of oil, at $3.07^ per barrel-, deliverable some days thereafter. Allen, in this case also, had not the money required for margin, and again applied to Hartley, who gave to him a check in form following:—
    “No. Parker’s Landing, Pa.,
    October 23d 1876.
    Parker Savings Bank pay to the order of P. McGough, cashier, five thousand dollars-margin (or collateral guarantee) on Frazer and Allen contract of 10,000 barrels of oil at $3.07J.
    $5000. William Hartley.” •
    This check Allen deposited, with the contract, in the bank of the defendant. Allen received from the teller a receipt for the amount of the same.
    This Frazer contract, during its lifetime, wap settled and adjusted between the parties thereto. To effect this settlement, a considerable part of this margin was required to be used by Allen, and the residue thereof was paid by the bank to him or his order. Some time after the completion of these transactions, Allen became insolvent.
    Hartley demanded from the bank the amount of his checks, and upon refusal, brought this suit.
    At the trial, before Taylor, P. J., the defendants offered to prove “ that by the custom of the bank and the custom of the oil trade, upon contracts of the nature of those of the 16th of October 1876, the parties to the contract left the money deposited as security for the performance of the contracts, and when said contracts were settled or paid, either before or at their maturity, the bank would recognise no person in the contract except the parties named as sellers and purchasers, or their agents, and that this custom of the bank or trade was known to the plaintiff on the 16th and 23d of October 1876, at the time he drew the check.”
    Objected to by the plaintiff, first, as incompetent and irrelevant ; that the- contract of the depositing checks was expressed on the face of the checks of the 16th and 23d of October 1876; that there was neither fraud or ambiguity alleged, and the custom of the bank could not affect or change the contract; second, because if Mr. Hartley knew the custom of the bank, the face of the checks shows that he drew them to exclude the custom and to create a specific contract unaffected by any custom of the bank or the trade; third, that the custom of one bank is not such a- custom as is recognised by law.
    The court sustained the objections.
    The following points were submitted by plaintiff, to which are appended the answers of the court:—
    1. That the check of 16th October 1876, expressing, as it does, upon its face, a contingent liability of the drawer, the bank was bound to take notice of the contingency thus expressed, and became a trustee for the drawer to hold the check until the contingency upon which its payment arose, and the contract of 16th October 1876 having been fully paid and satisfied before maturity, the defendant had no right to pay the money upon the check to R. B. Allen, or any other person, except William Hartley, the drawer of the check.
    Ans. “Affirmed, as qualified by the charge. We submit to the jury the question of the right to pay to Allen.”
    2. That the check of 28d October, 1876, expressing, as it does upon its face, a contingent and collateral liability of the drawer, the bank was bound to take notice of the contingency and collateral character thus expressed, and became a trustee for the drawer to hold the check until the contingency, upon which its payment arose, and that the contract of the 21st October 1876, having been fully paid and satisfied, on the day of or before its maturity, the defendant had no right to pay the money upon that check to R. B. Allen or any other person, except William Hartley, the drawer of the check.
    Ans. “Affirmed, as qualified by the charge.”
    3. That a deposit of check or checks as collateral security is to be governed by the law relating to sureties, and where the principal debtor pays the debt before or at its maturity, there is no responsibility upon the surety or his deposit, and the creditor or person in possession of the checks or evidences of suretyship, are bound to surrender them to the surety, and have no right to dispose of them in any other way.
    Ans. “ Affirmed, if there be no evidence of authority to pay to another, outside of the paper itself. This point as made, answered in the negative.”
    5. That the plaintiff is entitled to recover at least the difference between the amount of the check of 23d of October 1876, viz.: $5000, and the amount required of that check to make up the margin on the contract of 21st of October, 1876, viz.: $687.50, with interest from the day of demand.
    Ans. “Affirmed, as qualified by the charge.”
    In the general charge, the court, inter alia, said:—
    “ You will take our construction of these papers, and apply the evidence to our construction of it. And we instruct you that by the terms on the face of the checks, there was a specific appropriation of the funds of Hartley in the bank to the extent of the amount named in the checks, and for the purpose named in its terms. By its terms the defendant was authorized to set apart so much of the drawer’s funds as was covered by the checks to be held as security for any loss that might be sustained by reason of Allen’s, entering into the contract with Frazer or Lowe, or for the faithful performance of the same by Mr. Allen. This limitation, upon the face of the checks, the defendants were bound to take notice of. They might have refused to have receivéd the checks, had they seen fit, and not had anything to do with the transaction. But, having done so, they are bound to the faithful performance of the trust.”
    Verdict for plaintiff for $5959.83, and after judgment, defendants took this writ and alleged, inter alia, that the court erred in excluding the above-mentioned testimony, in the answer to the points and the foregoing portion of the charge.

      J. Gilpin and J. P. Coulter, for plaintiffs in error.
    Dealers living at different localities, when they met at Parker and made contracts, desired some place to deposit them and the accompanying securities. The bank there occurred to them as a convenient place for this purpose, and the bank officers, as an accommodation, permitted them to leave there their papers and securities. With the increasing number of these occasions, the bank was (to prevent inconvenience), forced to adopt certain rules in relation to such transactions, and did adopt them. These rules, or this practice, well known to all the parties, were acted on by. them and by all other dealers in that locality.
    It was under and subject to these rules, custom or practice, that the contracts and securities were deposited by Hartley, and the other parties and were received by the bank. Manifestly, therefore, they became part of the contracts between the bank and Hartley, Lowe, Allen and Frazer, the same as if they had been then and there distinctly enumerated, as the condition upon which the bank would receive the custody of the papers and securities: McMasters v. Pennsylvania Railroad Company, 19 P. F. Smith 374; McCarty v. N. Y. & Erie Railroad Company, 6 Casey 247; Carter v. Philadelphia Coal Company, 27 P. F. Smith 286; Whitesell v. Crane, 8 W. & S. 369.

      E. S. Golden and J. M. Reynolds, for defendant in error.—
    Although there is nothing of a fiduciary character in the ordinary relations between banker and customer, who are in those circumstances simply debtor and creditor; the latter having a right to call for his money or any part of it, immediately, yet if the dealings between them go beyond this point, in any tvay, and the banker is employed by the customer to make investments for him or otherwise to manage his monetary transactions, then the banker is, in that respect, the agent of the customer and is hound to observe complete good faith in the performance of the customer’s orders: Grant on the Law of Banking, p. 115. The bank knew Allen was not to have the margin, from the fact that Hartley drew on his own funds, and the contracts and the checks, which accompanied them, pinned together and thus passed into the bank, expressly stated the purposes and the contingencies for which the money had been checked from Hartley’s account to the “ margin ” account, and which would revert to Hartley’s account whenever the contracts were duly satisfied. Nor was this a mere gratuitous undertaking, for the fact is that the bank was remunerated by these very transactions, through the benefits and advantages which usually accrue to banks through the general deposits of their customers ; and these transactions were the inducements to oil dealers to deposit with banks which would undertake to act as stakeholders or holders of securities.
    January 5th 1880.
   Mr. Justice Sterrett

delivered the opinion of the court,

The transactions out of which this suit arose were not in the regular course of a banking business, in which the plaintiffs in error were engaged. The firm, through one of its members and cashier, McGough, became the custodian of Allen’s counterparts of the contracts for the sale of oil, and also undertook to act as stakeholder of the special deposits, known in the trade as margins, which were required to be made to cover any loss the vendees might sustain by Allen’s failure to deliver the oil. Allen was without funds, and Hartley, the defendant in error, having money on deposit in the bank, agreed to place at the disposal of its cashier a sufficient sum to meet the amount Allen might be required to pay under the terms of the contracts in case he failed to comply with them. He accordingly drew the checks in controversy, to the order of McGough the cashier, one for “ twelve hundred and fifty dollars margin on contract for 5000 barrels of oil sold S. King per contract in the hands of said McGough,” and the other for “ five thousand dollars margin (or collateral guarantee) on Erazer and Allen contract for 10,000 barrels of oil at'$3.07J.” Before the maturity of the first contract, it was adjusted by the parties and cancelled without the payment of anything by Allen. The second contract was also settled by the parties before it matured for $687.50, which was all that was ultimately required to be paid on the part of Allen out of the margins on both contracts. The bank w'as fully advised of these facts; and doubtless to the extent of the amount required to settle the contracts and pay the losses incurred by Allen, it had a right to use the funds placed at its disposal by Hartley for that purpose;1 but it did more. It paid over to Allen the residue of the $6250, covered by the checks. It was of this that the defendant in error complained in the court below. He insisted that the payment to Allen was a misapplication of the money; that what remained of the funds he had placed at the disposal of the hank for a special purpose belonged to him, and not to Allen, as soon as that object was accomplished.

It was claimed by the defendants below that, aside from the checks, Hartley had subsequently authorized the payment of the money to Allen ; but the jury,'to whom this question of fact was fairly submitted, found that no such authority had been given. The payment to Allen was therefore a misappropriation of the money, unless the checks themselves operated as a transfer of the funds for the use of Allen.. They were not drawn to his order. On the contrary, they were made payable to the order of the cashier for the purpose expressed on their face, and the bank was thus authorized to apply the whole amount, if necessary, to pay or adjust margins on the contracts of which it was the custodian; but, after that object was accomplished and the contracts were cancelled, Hartley, and not Allen, was entitled to the residue. In other words the checks operated as a specific appropriation, to the extent named therein, of the drawer’s funds, to be applied by the bank solely to the payment of such sum or sums as Allen might become liable to pay, in the event of his failure to comply with the terms of the contracts, and the bank as custodian of the money for that specific purpose had no right to appropriate it in any other way.

We think, therefore, that the learned judge committed no error in construing the checks as he did, and in holding that the bank was bound to take notice of the limitation which the drawer had thus placed on the use to be made of his funds.

There is nothing in any of the assignments that appears to require further notice. We discover no error in any of them.

Judgment affirmed.


text:
    Kimmel’s Appeal.
    1. A judgment note was filed of record, and a confession of judgment entered thereon. Subsequently the parties to the note, in the presence of the prothonotary, changed the terms thereof on the record. Held, that although this was an improper and unqualifiable tampering with the record, it would not, in the absence of actual fraud, postpone the judgment to the liens of subsequent creditors.
    2. The note was merged in the judgment, and was a paper which was functus officio.

    October 28th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunket and Sterrett, JJ. Paxson and Green, JJ., absent.
    Appeal from the Court of Common Pleas of Somerset county: Of October and November Term 1879, No. 372.
    Appeal of J. O. Kimmell and others from the decree of the court confirming the report of the auditor to distribute the proceeds of a sheriff’s sale.
    On July 29th 1872, E. H. Marshall gave his judgment-note to Joseph Cummins for $2000, payable July 29th 1874, which note was entered of record in the Court of Common Pies of Somerset county, to No. 812, September Term 1872. At the time of its entry of record the note read as follows:—
    “ $2000. I owe and stand indebted unto Joseph Cummins, or order, in the sum of two thousand dollars, for value received, payable on the 29th day of July 1874, without interest.
    “ And I confess judgment for the above sum and authorize the prothonotary of Somerset county to enter the same of lien against me, with costs of suit, release of errors, and stay of execution until said sum becomes due.
    “ Witness my hand and seal this 29th July 1872.
    E. H. Marshall, [seal.]”
    When this note was entered of record there were no other judgments against Marshall.
    On the same date that Marshall gave this judgment-note to Cummins, he also gave him four promissory notes for $100 each, for the interest on said judgment-note for two years at 10 per cent. On the 20th day of October 1875, said Marshall and Cummins went to the prothonotary’s office, and in the presence of the prothonotary, altered the said judgment-note, by striking therefrom the syllable “out” in the word “ without,” making the note read 'with interest, no alteration being made in the entries of the case in the continuance and judgment dockets, but at the same time and place Marshall signed a confession of judgment of revival to Cummins for the sum of $2860, viz.: “ $2000 debt, and $360 interest from 29th July 1872,” and costs, which judgment of revival was, by direction of Cummins in writing to the prothonotary, entered of record to No. 291, November Term 3875. Cummins then returned the four promissory notes of $100 each to Marshall.
    Between the time of the entry of the original judgment and the revival, a large number of judgments were entered against Marshall, amounting to more than $5500, and he became insolvent. Execution issued against him and his real estate was sold on a writ of fi. fa., to No. 47 of January Term 1876. The real estate was sold for $2860, and an auditor was appointed to distribute the fund, before whom Cummins claimed the whole amount of the revived judgment, with interest from July 29th 1875, and a feigned issue was asked and granted.
    The foregoing facts were found by the jury, who also found that the alteration of the said judgment-note was not an actual fraud upon the creditors of E. H. Marshall, who entered liens between the date of the entry of the said note and the entry of the revival. The case was then sent back to the auditor. On the hearing, counsel for creditors contended that the facts as found by the jury, constituted such a legal fraud as would vitiate the Cummins judgment, and that it must be postponed to all lien-creditors who intervened between the entry of the original judgment and the entry of the revival. The auditor, however, decided against this view of the case, and gave the Cummins judgment $2177.26, the full amount of the same with interest. The court confirmed the report of the auditor, when Kimmell, with the other subsequent judgment creditors, took this appeal and assigned this action of the court for error.

      W. H. Koontz, J. R. Edie and Coffroth & Ruppel, for appellants.
    The facts establish a legal fraud and afford sufficient grounds to postpone the Cummins judgment. As Marshall was present and consented to the change, in the note, the judgment is valid against him, but in this controversy, the appellants stand in the same relation to Cummins and Marshall as if they were sureties in the note. Had they been sureties in the note, and the alteration had been made without their assent, they would have been released, although the principal would still be liable — even though the alteration had been made without any fraudulent design: Marshall et al. v. Gougler, 10 S. & R. 164; Fulmer v. Seitz, 18 P. F. Smith 237; Hopkins v. Reed, 1 Pitts. Rep. 120 ; Prowattain v. McTier, 1 Phila. Rep. 105. The revived judgment was the one on which the money was first claimed, and it was claimed on this by virtue of the lien of the original judgment, the record of which had been altered and defaced. The effort to now recover on the judgment as first entered is the same in principle as the attempt to recover on an increased note the original amount of the note, the very thing that was condemned in Neff v. Horner and Fulmer v. Seitz, supra.

      Baer & Baer, for appellee.
    Assume that the judgment-note was altered as stated, it was done by the parties after it had been merged in the judgment; it had no life then, no new suit could have been maintained on it; it was functus officio. The judgment as docketed is the judgment, and causes the lien, even though it differs from a paper filed in the case: Crutcher v. Commonwealth, 6 Whart. 340. No alteration or mutilation of the note could affect the judgment. The auditor was concluded by the judgment as docketed against which nothing appeared.
    November 10th 1879,
   The judgment of the Supreme Court was entered

Per Curiam.

The judgment-note in this case was altered by the agreement of both parties, and the jury upon the feigned issue have found that no actual fraud was intended upon the subsequent judgment-creditors. And no injury was done to them for the judgment entered upon the note remained unaltered. It was indeed a very unjustifiable tampering with a paper which was on file as a part'of the record, but it was a paper which was functus officio. It had merged in the judgment. The plaintiff in the judgment has been awarded what he was entitled to under the judgment as entered and no more. What injury then has been done to the appellant ? Had actual fraud been intended, a very different state of circumstances would arise. But an ignorant and innocent' alteration to correct what was supposed to be a common mistake in the original instrument, ought not to avoid the judgment which was properly and regularly entered and so remains.

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


text:
    Flattery versus Flattery.
    1. The authority given to a married woman by the Act of April 15th 1851 to loan money of her separate estate, through the intervention of a trustee, implies the power to arrange the terms of the loan and provide when and how it shall be repaid, and whether with or without interest.
    2. When the power thus conferred is freely and voluntarily exercised, the transaction necessarily assumes the form of a contract, binding equally on both parties.
    3. Per Sterrett, J. If it should appear that the loan was not voluntarily made on the part of the wife; that it was effected by the fraud or coercion of the husband, the law would doubtless interpose for her protection and compel immediate payment of the money thus unlawfully obtained.
    October 28th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Green, JJ., absent.
    Error to the Court of Common Pleas of Cambria county: Of October and November Term 1879, No. 275.
    Assumpsit by' Mary Flattery, by her next friend, Samuel Shoetaaker, against William Flattery.
    The facts were: William Flattery owed his wife Mary Flattery $2740, her separate funds, which he had received from her. After-wards she was compelled by cruel treatment to leave his abode, and petition for a divorce, which was decreed the 2d April 1877. The case was affirmed by this court, November 4th 1878. (See 7 Norris 27.)
    After the decree in divorce below, Mary Flattery brought the present action. On the trial the plaintiff proved by the sworn admissions of the defendant that he had received $2740 of her money, and rested.
    The only evidence offered by the defendant was a note which he had given his wife for $2540, on the 4th December 1875. This note was produced by the plaintiff on notice and tendered to defendant in court. The note was read in evidence, against the objection of plaintiff’s counsel; its effect to be passed on by the court afterward.
    There was no disputed question of fact for the jury, and the court, Dean, P. J., reserved the legal questions, and directed a verdict for the amount admitted. Afterwards, on argument the legal questions, except the question of interest, was decided in favor of plaintiff.
    The other material facts will be found stated in the opinion of this court.

      James Potts, for plaintiff in error.
    A married woman cannot, by her next friend, maintain an action of debt against her husband on a contract made during coverture. Such action is not authorized by the Act of the 11th of April 1848, or any of its supplements: Retter v. Retter, 7 Casey 396; Pettit v. Fritz, 9 Id. 118; Bear v. Bear, 9 Id. 525; Kutz’s Appeal, 4 Wright 90; Miller v. Miller, 8 Id. 170; Diver v. Diver, 6 P. F. Smith 109.
    A married woman can loan money to her husband, taking an obligation in the name of a third person as trustee; Act of the 11th of April 1851; Johnston v. Johnson’s Adm’rs, 7 Casey 450.
    D. McLaughlin and R. L. Johnston, for defendant in error.
    January 5th 1880.
   Mr. Justice Sterrett

delivered the opinion of the court,

The defendant in error loaned to her husband money of her separate estate, and accepted as security therefor his note, in the following form:—

“ Six years after date, I promise to pay to Samuel Shoemaker, in trust for my wife, Mary Flattery, two thousand five hundred and forty dollars, money loaned by her to me; and in case of her death previous to this date, I agree to pay the above amount within one year after her death to said trustee for her heirs, as she may by will direct, and without interest until paid.
December 4th 1875. William Flattery.”

In July 1876 she instituted proceedings fór a divorce a vinculo matrimonii, which, on March 29th 1877, resulted in a final decree in her favor. A few days thereafter the present action of assumpsit was brought against her late husband to recover the money loaned to him during coverture, including the amount specified in the note. The declaration was in the common counts for money lent, &c. The main ground of defence in the court below, as presented in defendant’s fifth point, was:—

“ That the claim sought to be recovered in this action was for money loaned by the plaintiff to the defendant during coverture, and for which an obligation in writing was made by the defendant to Samuel Shoemaker in trust for the said plaintiff, which obligation was then delivered to and accepted by her, and which she has ever since held and now produces; that by the provisions of said obligation it was not due or payable when this action was instituted, nor is it now due or payable; and there being no allegation of fraud, by the pleadings or evidence, on the part of the defendant in obtaining the money for which the obligation was made and delivered, nor in the conditions of the obligation, it is conclusive evidence of their agreement, and therefore no action can be maintained by the plaintiff against the defendant for the money so loaned, except upon the said written obligation, and the verdict should be for the defendant.”

The allegations of fact embodied in this point were not controverted, and the learned judge refusing, pro forma, to affirm it, directed a verdict in favor of the plaintiff, subject to the opinion of the court on the questions of law reserved. With the exception of the question as to the right of the plaintiff to recover interest, the questions of law reserved were ruled against the defendant below, and judgment entered on the verdict.

The learned judge held, in effect, that the plaintiff below was not bound by the note as to the terms of credit given therein; that it was voidable at her election, and that having elected to repudiate it by bringing suit immediately after she was divorced, she had a right to do so. While he conceded that a married woman may put her husband in possession of her money, and that, in the absence of proof to the contrary, the law will presume it a loan; that the husband may, during coverture, repay or secure the repayment of money received from her, and that a judgment-note given by him directly to her as security will be enforced, he held that “ her power to make a contract so manifestly to her prejudice as this one,” could not be sanctioned, when she chose to repudiate it on being released from the bonds of matrimony. Undoubtedly, the doctrine of protection to married women is greatly favored by the law, but we think it would be extending it beyond the verge of propriety to hold that an instrument like the one before us is, upon its face alone, “ so manifestly to her prejudice” that she may repudiate its terms at pleasure. It is true the term of credit is six years, without interest; but she might have made an absolute gift of the entire sum to him. Moreover, in the event of her decease, which might have occurred at any time after the note was given, it is payable within one year to her testamentary appointees.

It cannot be doubted, especially since the passage of the Act of April 15th 1851, that a married woman may loan her husband moneys belonging to her separate estate. The 22d sect, of that act, in express terms, makes it lawful for her to do so, and provides that she may take as ’security therefor a judgment or mortgage against his estate in the name of a third person, who shall act as trustee for her. The authority thus given to lend money of her separate estate, through the intervention of a trustee, implies the power to arrange the terms of the loan and provide when and how the principal shall be repaid, and whether with or without interest. When the power thus conferred is freely and voluntarily exercised, the transaction necessarily assumes the form of a contract, binding equally on both parties. If it should appear that the loan was not voluntarily made on the part of the wife ; that it was effected by the coercion or fraud of the husband, the law would doubtless interpose for her protection and compel immediate payment of the money thus unlawfully obtained. In the present case it was not shown that any undue advantage was taken of the defendant in error. After receiving the first note of November 13th 1875, she expressed dissatisfaction therewith, for the reason that it was not made payable to a trustee for her use. To meet thi^ objection the note above set forth, payable to a trustee of her own selection, was given in lieu thereof. To hold that under such circumstances the husband was not entitled to the benefit of the credit given, him by the terms of the note, would in a great measure defeat the purpose of the act.

The 7th and 8th assignments of error are sustained. We discover nothing in the remaining assignments that calls for special notice.

Judgment reversed, and a venire facias de novo awarded.