author: Per Curiam.

text:
    The Mutual Benefit Life Insurance Company versus Bales et al.
    1. The Act of April 4th 1873, having prohibited foreign insurance companies from, doing business in this state through sub-agents, without the appointment of such sub-agent being duly certified, and the agent commissioned by the insurance commissioner, it is the duty of such insurance company to see that such agents are commissioned, and unless that is done, the company cannot recover from sureties money received by the agent when not commissioned.
    2. On March 19th 1874, a company certified the appointment of B. to the commissioner, and the latter issued his certificate that B. was duly authorized to transact business as agent of the company, for and during the current year. On the 26th of April 1875, a like certificate was issued, and a similar one April 12th 1876, certifying that the said B. was duly authorized to transact business as agent of the company for and during the current year, and that was the last certificate issued to B. After the first of January 1877, and prior to the 12th day of April 1877, it was claimed that B. had received of the company’s money $564.58, and that after the 12th day of April 1877, and prior to the 22d day of May 1877, received the additional sum of $1425.13 in money belonging to the company. These amounts, with interest, the company claimed to recover from the bondsmen of B. Held, that the authority to B. to act as the agent of the company, under the certificate of the commissioner, expired by its own limitation December 31st 1876, which was the end of the “ current year that thereafter B. was not legally qualified to act as agent, and that his bondsmen were not liable for his acts after that time.
    3. Thorne v. Travellers’ Ins. Co., 30 P. F. Smith 15, followed.
    November 28th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Tbunkey, JJ. Stérrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Orawfbrd county: Of October and November Term 1879, No. 326.
    Debt by the Mutual Benefit Life Insurance Company against Marion T. Bales and C. B. Caldwell, Henry C. Davis and Charles Beirschmitt, his sureties, on a bond given by said Bales to the plaintiff company.
    The following was the opinion of the court below, Taylor, P. J., in which the facts are fully stated:
    “ The plaintiff is a foreign life insurance company, located at Newark, in the state of New Jersey. Marion T. Bales, one of the defendants, was its agent, and as such received certain premiums, which, it is claimed, he neglected or refused to pay over, amounting in the aggregate to the sum of $1989.71; and this action is brought against the agent and his sureties jointly, to recover the amount received, with the interest accrued.
    “ The facts given in evidence, and which are admitted, are briefly as follows: March 2d 1874, Bales was duly appointed the agent of the company, for the purpose and within the district specified in the written agreement. On the 28th of the succeeding April, he executed and delivered to the company his bond in the sum of $5000, conditioned for the faithful performance of his duties as their agent, with Chauncey B. Caldwell and the other defendants as his sureties. March 19th 1874, the company having complied with the requirement of the Act of the 4th of April 1873, and certified the appointment of Bales to the insurance commissioner, he issued his certificate, under the official seal of the department, certifying that said Bales was duly authorized to transact business, as agent of the company, for and during the current year. April 26th 1875, a like certificate was issued, and a similar one April 12th 1876, which was the last one issued to Bales, who was, on the 19th of May 1877, notified of the appointment of another agent; and on May 22d 1877, William H. Woodruff was certified by the insurance commissioner, as the authorized agent of the company, in the stead of Bales. May 12th 1878, the commissioner certified that the company had complied in all respects with the requirements of the law. Bales was indebted to the company for moneys received by him, as their agent, after the 1st of January 1877 ; and prior to the 12th of April next succeeding, in the sum of'$564.58; and after the 12th of April, and prior to the 22d of May 1877, he in like manner received the additional sum of $1425.13, which was also owing to the plaintiff.
    “ The plaintiff’s points were answered pro forma in the affirmative, and the defendants’ in like manner negatived, and the jury instructed to find for the plaintiff the sum of $2176.65, being the whole amount admitted to be due, with interest to date; and also to find specially, 1st, the amount received after the 1st of January, and prior to the 12th of April 1877 ; and 2d, the amount received after the 12th of April, and prior to the 22d day of May succeeding ; the court reserving the question, 1st, whether, upon the facts admitted, proven and heretofore stated, the plaintiff was entitled to recover; 2d, whether the amount received after the 1st of January 1877, and prior to the succeeding 12th of April, was not unlawfully received, by reason of neglect of the company, or the agent, Bales, in not taking out the certificate, required by the 11th section of the Act of April 4th 1873; and, 3d, whether the amount received after the 12th of April was not, for the same reason, unlawful, and the sureties thereby released. If the court should be of the opinion, that the plaintiff was entitled to recover the whole amount admitted to be due, the judgment to be entered for the plaintiff for the same, upon the verdict. If the court should be of the opinion, that the plaintiff was .entitled to recover the amount received prior to the 12th of April 1877, but not what was afterwards received, then judgment upon the special verdict for the amount thus found due. But if the court should be of the opinion, that the plaintiff was not entitled to recover, then judgment to be entered for the defendants non obstante veredicto.

    “ In one view of the case it is somewhat remarkable, as but one authority was cited upon the argument; both plaintiff and defendants relying upon it to sustain their widely different views.
    “ The 9th section of the Act of 4th of April 1873, provides 4 it shall be unlawful for any person, company, or corporation to negotiate or solicit, within this state, any contract of insurance, or to effect an insurance, or insurances, or pretend to effect the same, or to receive and transmit any offer or offers of insurance, or receive or deliver a policy or policies of insurance, or in any manner to aid in the transaction of the business of insurance, without complying fully with the provisions of this act.’
    “The 10th section provides, inter alia, that 4 no person shall act as agent, or solicitor in this state, of any insurance company of another state or foreign government in any manner whatever relating to risks, until the provisions of this act have been complied with on the part of the company or association, and there has been granted to said company or association, by the commissioner, a certificate of authority showing that the company or association is authorized to transact business in this state.’ * *
    “ The 11th section recites that ‘companies to which certificates of authority are issued, as provided in the preceding section, shall from time to time certify to the commissioner the names of the agents appointed by them to solicit risks in this state; and no such agent shall transact business until he has procured from the commissioner a certificate showing that the company has complied with the requirements of this act; and that the person named in such certificate has been duly appointed its agent.’
    “ This act, like the Act of 1868, which it supplied and repealed, is a remedial statute, and is to be so construed as to suppress the mischief and advance the remedy. The mischief sought to be remedied, was the imposition by foreign insurance companies, some of them worthless, upon the citizens of Pennsylvania, and the defrauding the state of its revenue.
    “ The Act of 1868 provided for the taking out a license. This clause is omitted in the Act of 1873, but the latter requires in effect the same thing, viz. : the procuring of a certificate from the insurance commissioner; the difference is more in name than substance.
    “ That the legislature intended by the certificate required by the 11th section of the Act of 1873, something more than the mere evidence of the appointment of the agent, is evidenced by the language employed. ‘No such agent shall transact business until he has procured from the commissioner a certificate showing that the company has complied with the requirements of this act.' If the design of the legislature in requiring this certificate was simply the evidence of the appointment of the agent, why specify that such certificate should show upon its face that the company had complied with the requirements of the law? The object was the protection of the citizens of our own Commonwealth, not only from the acts of unauthorized agents, but also from worthless companies. The language of this section is just as important as that of the 10th section, requiring the company to procure a certificate. The 9th section makes it unlawful to transact any business, ‘ or to in any manner aid in the transaction of the business of insurance without complying fully with the provisions of this act.’ The requirements of the act cannot be held to have been fully complied with when no certificate has been issued to the agent. It is this alone that authorizes him to act. Without it all his acts as agent of the company are in direct violation of a positive mandate of the law. They are unlawful, and being so, under the ruling in Thorne v. The Travellers’ Insurance Co., 30 P. F. Smith 15, the sureties cannot be held for such unlawful acts. We have not overlooked the dictum near the close of the opinion in this case. The principle enunciated in the case is that- the company must show affirmatively that they have complied with all the requirements of the law; and if they have not done so the acts of the agent are illegal, and his sureties cannot be held for such acts. This is placed above the consideration of private interest, and upon the ground of public policy. We have not the egotism to assume that we can add anything to the able reasoning of the learned justice who delivered the opinion in this case.
    “ It is contended on the part of the plaintiff, that the company having certified the name of the agent to the commissioner, and procured his certificate, that they had in all respects complied with the law; that it was the duty of the agent to take out the certificate required by the 11th section, and his neglect to do so cannot be interposed as a bar to a recovery in this action against him and his sureties. The certificate of the insurance commissioner that tne company had complied with the law, would undoubtedly be prima facia evidence that they had done so; but it is not conclusive. It is admitted that the certificate of April 12th 1876, is the last one issued to Bales. It was for the current year. If after the expiration of the certificate, he transacted business for the company, it was done in direct violation of the statutes, and no general certificate of the commissioner, issued to the company, May 12th 1878, could galvanize their acts into lawfully authorized ones. If it primarily was the duty of the agent to take out this certificate, it was also the duty of' the company to see that he performed no act relating to the business of insurance, as their agent, until the provisions of the act were fully complied with. The act of the agent was the act of the principal, and the company could perform no act without the intervention of an agent, within the scope of his authority, his act was their act, and his neglect their neglect.
    “Having reached the conclusion that the certificate required by' the 11th section was something more than a mere matter of form; that it was of such vital importance that acts performed by the agent without such certificate were unlawful, it remains but to inquire at what time the certificate issued April 12th 1876, expired. By the express terms of the certificate Bales was the authorized agent of the company for the current year. In the absence of anything appearing to the contrary, the current year was the year 1876 ; it expired on the 31st of December 1876. Bouvier defines it as £a term used to express present time; the current month is the present month.’ Webster says ‘now passing; present in its course; as, the current month or year.’ That the words ‘current year’ were intended to express a definite TDer'iod of time is evidenced by the fact that it twice appears in the certificate; 1st in certifying that the company was authorized to transact business in this state, ‘during the current year,’ and again that Marion T. Bales was the authorized agent of the company ‘ for and during the current year.’ Referring to the 10th section of the act it provides, inter alia: ‘And it shall be the duty of every such company or association authorized to transact business in this state, to make report to the commissioner in the month of January of each year, under oath of the president or secretary thereof, showing the entire amount of premiums received by said company or association in this state during the year or fraction of the year ending with the 31st day of December preceding.’ * * * In the light of this section the words ‘ current year’ in the certificate are clearly defined, for it is clear that there was to be an annual statement, and balance struck. The certificate to Bales authorized him to act for and during the current year; his authority expired with the 31st of December 1876; every act of his as agent for the company after this date was without authority — against the explicit requirements of the statute, and under the 9th and 11th sections of the act unlawful, being such under the authority above referred to. The sureties cannot be held responsible for such unlawful acts of the agent; and as this action is joint, it cannot be sustained. The plaintiff’s points, so far as they are inconsistent with the views herein expressed, are answered in the negative; the defendants’-affirmed, and judgment must be entered for the defendants non obstante veredicto.”

    The following were the points of plaintiff:
    1. That the certified copies of the records and papers on file in the department of insurance of the Commonwealth of Pennsylvania, show a full and complete compliance, on the part of the plaintiff company, with the law of the state regulating foreign insurance companies.
    2. That the plaintiff company having complied with the requirements of law, and being lawfully empowered to transact the business of life insurance in the state, and having duly certified the name of the defendant, Bales, to the commissioner of insurance as one of its agents, it was the duty of said Bales to procure from the commissioner of insurance a license authorizing him to act as such agent, whenever such license became necessary by the expiration of a former one, and if he failed to do so, neither he nor his sureties can set up the want of such license as a defence in this action. ,
    3. That under the evidence-in this case, the defendant, Bales, continued as the agent of the plaintiff company until the name of William M. Woodrufl’ was certified to the insurance department, and was appointed by the company its agent in his stead, unless he sooner resigned or was'dismissed by the company.
    The following were defendants’ points:
    1. That the plaintiff can only recover on the bond in question against the sureties in this case, for money received by the defendant, Bales, while he was the agent of the plaintiff company, duly appointed and qualified to act as such agent by the law.
    2. That after April 12th 1877, Bales was not legally qualified to act as the agent of the plaintiff company, and that his sureties were not liable for any money received by him after said date.
    3. That the certificate given to Bales, April 12th 1876, expired by its own conditions, on the 12th of April 1877 ; that Bales was not legally qualified to act thereafter as agent of the company ; and that his bondsmen are not liable for any money received after that date.
    4. That the fact that no certificate was issued to Bales after April 12th 1877, raises the presumption that the appointment was revoked at that date; and that in the absence of proof to the contrary, the presumption is that his appointment Was revoked at that date.
    5. The Act of 1873 having prohibited foreign insurance companies from doing business in this state through sub-agents, without the appointment of such sub-agent being duly certified, and the agent commissioned by the insurance commissioner; that it is the duty of such insurance company to see that such agents are commissioned, and unless that is done, the company cannot recover from the sureties for money received by the agent when not commissioned.
    The company took this writ and, inter alia, alleged that the court erred in the answers to the above points, and in entering judgment for defendants.

      B. 0. McCoy, for plaintiff in error.
    It is not to be presumed, that the legislature intended more than that there should be a fair, reasonable and substantial compliance with the law; or that it was intended that a dishonest agent should be allowed, on a mere technicality, to retain the money of a company which he admits he has and has no just reason for retaining or refusing to pay.
    It was plainly the duty of Bales to procure a certificate from the commissioner, and his failure to procure it cannot be set up by him or his sureties as a defence.
    It is confidently believed, that the position that the certificate expired on the 31st of December, and that, consequently, the agent was violating the law, and because he was, that the company was also, until another was issued, is not well taken. The commissioner certainly did not so regard it. He certainly would not solemnly certify year after year, that the company and its agent were complying with the law, if they were in fact violating it during one-third of the time. The fact that the companies are required to make reports to the department in each January, up to and including the 31st of December, only show's that the reports were to be made then. This is merely an arbitrary provision of the statute, as some time had to be fixed, and is evidence of nothing, except what it provides.

      John B. Compton, Wm. B,. Bole and A. 6r. Church, for defendants in error.
    The authority of Bales to act as the agent of the plaintiff’s company, under the certificate of the commissioner, expired by its own limitation, December 31st 1876. That was the end of the current year for which it was granted. Notwithstanding the fact that Bales had no legal authority to act as agent of the company, and both the company and Bales were forbidden by law to do business through him as agent without such legal qualifications, the company through Bales did carry on their business of insurance ; and they now seek to hold the bondsmen of Bales, for acts done by him, when he was in no sense the lawful agent of the company, and was not authorized to do business for it. The undertaking of the bondsmen was to answer for the acts of Bales, when lawfully qualified to act as agent for the company and not otherwise. After the expiration of his agency, they were not bound by the terms of their undertaking to answer for his acts. The statute pointed out the only mode by which he could be legally qualified to act as the agent of the company, and it was the duty of the company to see that he was so qualified. Without the certificate he had no right to act, and was in no proper sense the agent of the company. His bondsmen are therefore not liable for acts done by him.
   The judgment of the Supreme Court was entered January 5th 1880.

Per Curiam.

We affirm this judgment upon the opinion of the learned judge of the court below, on the points reserved. The case indeed, is ruled by Thorne v. Travellers’ Insurance Co., 30 P. F. Smith 15.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Crawford County versus Barr.
    1. To recover from a county costs accrued in a criminal proceeding, it is necessary to show a statute obliging the county to pay, and when this cannot be done, an action against the county must fall.
    2. Section 64 of the Act of March 31st 1860, on its face, applies to costs on bills of indictment. It is part of an act directing the procedure in courts of Oyer and Terminer and Quarter Sessions, and was not intended to extend the liability of the county for costs to convictions before justices of the peace.
    3. County commissioners have no power to discharge a prisoner, or to remit fines, forfeitures and costs. If courts have sanctioned their acts in paying costs out of county funds, where a party was committed solely in default of payment of costs, that does not authorize their interference where there has been a conviction and sentence for a criminal offence.
    November 28th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1879, No. 267.
    Case stated wherein Lafayette Barr was plaintiff and the county of Crawford defendant. The.facts, as stated, were these: That the plaintiff in this case is an acting justice of the peace in the 4th ward of the city of Meadville; that on the 4th of March 1879, one Elmer Stebbins was brought before him, charged with violation of the Act of Assembly “ for the prevention of trespassing upon railway trains and consequent injury to minors and other persons,” approved March 24th 1878, Paraph. L. 125 ; that the said defendant was convicted before him, and sentenced to pay a fine of $5 and costs, and to be imprisoned in the county jail for the term of ten days, and the defendant refusing to pay said penalty, the said justice committed him as by said Act of Assembly prescribed. That upon the expiration of the time of imprisonment in said sentence mentioned, the said defendant was discharged by the sheriff of said county, by direction of the county commissioners; without fine or costs being paid by said convict; that the plaintiff in this case has demanded his proper costs to be paid out of the county funds, and that the commissioners of said, county refuse so to pay, for the reason that the act raises no obligation upon the county to pay any costs in such cases.
    If the court should be of the opinion that the county of Crawford is liable for said costs, then judgment be entered in favor of plaintiff, but if not, judgment to be entered for the defendant.
    The first section of the Act of March 24th 1878, is as follows:
    “ That any person found entering, or being in or upon, any railroad engine or car, whether the same be passenger, freight, coal or other car, on any railroad, in any city or county in this Commonwealth, contrary to the rules of the person, persons or corporations, owning or operating the same, and with the intention of being in or upon, riding or travelling upon, such engine or car, without paying fare, or committing larceny, violence or destruction thereon, or of threatening, intimidating'or assaulting travellers or other persons, upon such engine pr cars, shall, upon conviction, forfeit and pay a penalty of not less than five dollars, nor more than fifteen dollars, which penalty shall be paid to the treasurer of the school district in which said offence was committed, for use of said district, and-such person so convicted, shall be committed to the county jail of such county, for a period not exceeding ten days.” The court, Church, P. J., in ruling upon the case stated in an opinion, said:
    “ The 64th section of the Act of 31st March I860,, known as the ‘ Criminal Code,’ provides, inter alia, ‘ that in all cases of conviction all costs shall be paid by the party convicted, but where such party shall have been discharged according to law without payment of costs, the costs of prosecution shall be paid by the county.’
    “ This provision is very comprehensive ; ‘all cases of conviction,’ &c., must have included cases of summary conviction before a magistrate, and then immediately follows the phrase as to the result of a discharge according to law, i. e., costs to be paid by the county. According, then, to the terms of the case stated, judgment must be entered in favor of the plaintiff. This view of the construction of the vagrant act, and of the cases above cited, is held by many of the judiciary throughout the Commonwealth, notably the judges of the 6th and 41st districts. Judgment on the case stated in favor of plaintiff.”
    The county took this writ, alleging that the court erred in the this action.

      Thomas Roddy, for plaintiff in error.
    The question is simply whether the county is liable for the fees of the committing magistrate, under the Act of 24th May 1878, Pamph. L. 125, and hence the burden of proof was upon him to show : 1. That the offence committed by the defendant was a crime, and that the act under which he was sentenced contemplated a violation of its provisions, a crime within the meaning of the 64th section of Act of 31st March 1860, Pamph. L. 445. 2. That he was discharged according to law, so as to fix the responsibility upon the county for the costs.
    That the violation of every public law is a crime in its broadest signification is admitted, but it cannot be that such was the intention of the framers of the criminal code when they penned the section aforesaid. The.word “crime” undoubtedly was held by them in a more limited sense, and clearly was intended to cover only such offences as were the subject of indictment, or at least offences against public justice and morals, not a mere trespass.
    The convict in the case stated was sentenced to pay a fine of $5 and costs, and to be imprisoned in the county jail for the term of ten days. In order, then, to comply with the requisites of the sentence, it was necessary to serve ten days in jail, pay his fine and costs; on failure to pay the fine and costs, it was imperative he should remain in jail the further period of ten days before he could be lawfully discharged, so as to impose the costs of prosecution upon the county. This we submit -was not done, but the sheriff, acting, as is claimed, upon the authority of the county commissioners, discharged the convict at the expiration of the time of imprisonment in said sentence mentioned, without fine or costs being paid by said convict.
    Such discharge, we contend, was strictly unlawful, and no agreement on the part of the county commissioners to pay the fine could make it lawful; hence the discharge was illegal, and the county not responsible.

      J. JT. MoOloslcey and Myron Park Davis, for defendant in error.
    The court below placed the right construction on the 64th section of the criminal code, for by the terms of the case stated, Stebbins was convicted before a court of competent jurisdiction. And it being a summary conviction, there was but one way of disposing of the costs, there being no jury to fix the costs as in the case of misdemeanors, the distinction being, that the term conviction when applied to the verdict of a jury finding the defendant guilty, means conviction before sentence and judgment, while in summary proceedings the conviction and judgment are one and the same. While the Act of 1878 does not say that the offence therein prohibited is a crime, yet it enumerates offences that are so well known as both crimes and misdemeanors, that it is surprising that the question should ever be raised. The criminal code does not specify any particular crime that the person shall be convicted of, to make him liable for the costs, and in case of discharge according to law, the county to be liable, but on the contrary, provides that “in all cases of conviction of any crime,” &c. A crime is any act committed or omitted in violation of a public law, either forbidding or commanding it. And the general rule is that no person shall be excused from punishment for disobedience to law, unless he be expressly defined and exempted by the law itself. This man Stebbins was convicted of violation of a penal law, and the law considered him guilty, and the court before whom he was convicted pronounced the sentence against him, and he was placed in custody for the fulfilment of that sentence, part of which was the payment of the costs of the magistrate. The second section of the act commanded the infliction of this punishment, and the county authorities were bound by it, to see that the sentence was duly executed.
    The commissioners have the power to discharge, and while it may be true that this power should be executed with great discretion, none are so well able to exercise that discretion as the county commissioners, who are on the ground and familiar with all the circumstances surrounding the particular case, and when it has been exercised and the county made a saving by it, they should not be permitted to repudiate their contracts. “The county commissioners have a right, and it is their duty to manage the financial affairs of the county. They are the guardians of the treasury and no money can be paid out except on their order. All special contracts for or on behalf of the county are made by them. They must see to the collections of the debts due to the county, and provide the.ways and means to meet those which it owes. In the performance of those duties they have a wide latitude of discretion. They are not bound to sue a debtor from whom they claim nothing can be recovered; and when a prisoner is detained merely for the non-payment of costs, even in a criminal case, they may advance the sum necessary to discharge him if they are satisfied that by doing so money can be saved to the treasury.” — Chief Justice Black in the case of Schwamble v. The Sheriff, 10 Harris 19.
   Mr. Justice Trunkey

delivered the opinion of the court, January 5th 1880.

Eor prevention of trespasses upon railway trains it has been enacted that the trespasser, on conviction before a justice of the peace, shall forfeit and pay a penalty of not less than five dollars nor more than fifteen, and be committed to the county jail for a period not exceeding ten days; but if he neglect to pay the penalty and costs immediately, he shall be committed for a further period of ten days: Act March 24th 1878, Pamph. L. 125. Punishment at hard labor is not authorized. The act has not provided that the county shall pay the costs, if the convicted trespasser be lawfully discharged without having paid the same.

To recover costs, accrued in a criminal proceeding, it is necessary to show a statute obliging the county to pay, and when this cannot be done, an action against the county must fall. It is said the plaintiff may recover by virtue of a clause in the 64th section of the Act of March 31st 1860, Pamph. L. 445, namely, “ that in all cases of conviction all costs shall be paid by the party convicted, but when such party shall have been discharged according to law, without payment of costs, the costs of prosecution shall be paid by the county.” That Section is a part of the Criminal Procedure Act, and is a consolidation of sections 11 and 15 of the Act of September 23d 1791, 4 Carey & Bioren’s Laws 80, section 1 of the Act of March 20th 1797, 5 Id. 224, and section 13 of the Act of March 28th 1814, Pamph. L. 359. The Act of 1791, sect. 13, declared the county should pay the costs on indictments returned ignoramus, and the Act of 1797 imposed like obligation when a party charged should be acquitted by the petit jury. Later acts made other provision in all cases of such acquittal, except felonies. The Act of 1791, sect. 15, enacted, “That in all cases where any person shall be convicted of any offence or offences, which shall be punished capitally or by imprisonment at hard labor, the county” shall pay the costs of prosecution if the defendant hath not property to discharge the same. Prior to 1860 it was decided that the county was liable, under that section, for costs on conviction and sentence of a person, before a justice of the peace, for an offence punishable at hard labor; but not, unless the conviction and sentence showed the case was within said act: County of Northampton v. West, 4 Casey 173; County of Cumberland v. Holcomb, 12 Id. 349. The Act of 1814, sect. 13, enacted, “That*in case of conviction in any Court of Oyer and Terminer, Quarter Sessions or mayor’s court, all costs shall be paid by the party convicted, but when such party shall have been discharged according to law, without payment of costs, the same shall be paid by the county.”

Section 64 of the Act of 1860, on its face, applies to costs on bills of indictment, it is part of an act directing the procedure in Courts of Oyer and Terminer and Quarter Sessions, and said act is silent as to convictions and costs before justices. The clause relied on as making the county liable in this, and like cases, is taken from the Act of 1814 which was limited to the courts therein named. Nothing in the report of the code commissioners indicates a purpose to extend the liability of the county to convictions before justices, and we see no reason for taking a clause out of a sentence, which constitutes the section, and giving it a construction it would not bear in its proper place. The detached clause may be separated without destroying its sense, yet it must be interpreted as in its true relation. It may be within the intendment of the consolidated statute to continue the liability which was imposed by the Act of 1791; but, manifestly, there was no intention to include cases of convictions, before justices, punishable only by simple imprisonment.

County commissioners have no power to discharge a prisoner, or to remit fines, forfeitures and costs. If courts ' have sanctioned their acts in paying costs out of county funds, where a party was committed solely in default of payment of costs, that does not authorize their interference when, there has been a conviction and sentence for a criminal offence. A judge considers the pecuniary ability of the party when he imposes the «fine, and often will make the period of imprisonment shorter, because of the probability that the convict will remain, after its expiration, the prescribed time before he can be discharged under the insolvent laws : Schwamble v. The Sheriff, 10 Harris 18; Berks Co. v. Pile, 6 Id. 493. Stebbins was not discharged according to law; and the plaintiff could not recover, even if the county were liable in such a case after a lawful discharge without payment of costs.

Judgment reversed, and now on the case stated, judgment for defendant below.


text:
    Titusville Building and Loan Association versus McCombs and Wife.
    The Supreme Court is bound to disregard an assignment of error, under the Act of April 18th 1874, unless the record shows an exception was taken.
    November 28th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1879, No. 365.
    Scire facias sur mortgage issued by the Titusville Building and Loan Association against James McCombs and wife.
    In this case a rule for judgment for want of a sufficient affidavit of defence was discharged and a writ of error taken under the Act of April 18th 1874, Pamph. L. 64. It did not appear of record that any exception was taken to the decision of the court. The errors assigned by the building association were the discharge of the rule, and the refusal to make the same absolute and to enter judgment for the amount of the claim.

      Neill ‡ Heywang and J. B. Brawley, for plaintiff in error,
    moved to quash the writ of error for the reason that no exception appeared to the order of the court below discharging the rule for judgment.

      Bole Frey, for defendants in error.
    An exception was asked for and refused on the ground that it was not necessary.
   The judgment of the Supreme Court was entered January 5th 1880,

Per Curiam.

This is a writ of error to an order of the court below refusing a judgment for want of a sufficient affidavit of defence. This writ is given in such case by the Act of 18th April 1874, Pamph. L. 64, which, however, expressly provides, “ plaintiff may except to such decision and take a writ of error to the Supreme Court.”. As the record shows no such exceptions it is clear that the court is bound to disregard the assignment of error.

Order affirmed, the writ of error dismissed 'at the cost of the plaintiff without prejudice.


author: Mr. Justice Gordon

text:
    Davis and Wife versus Dickson et al.
    1. Where the widow of an intestate enters into possession of realty as a tenant for life, under a decree in partition, the owners of the remainder can have no possessory action until her death, and the Statute of Limitations only begins to run against her and her vendees from that time.
    2. Where, however, the proceedings in partition are inchoate and never consummated, and she had no right thereunder, and her claim and posses-, sion were adverse for over thirty years prior to the action of ejectment, such a lapse of time will bar a recovery against her and her vendees.
    November 28th 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1879, No. 347.
    Ejectment by Kennedy Davis and Margaret, his wife, against Joseph Dickson and others.
    This was an action by Davis and his wife, a daughter and one of the heirs-at-law of Henry Hurst, deceased, to recover her proportionate share (one-seventh) of two lots in the city of Meadville, Pennsylvania, being a part of the estate of her deceased father. Henry Hurst died intestate in May 1823, leaving to survive him, a -widow, Isabella, and nine children, Robert, George, Thomas J., Henry H., James M., William A., Maria, intermarried with Wm. A. Foster; Ellen, intermarried vnth Robert McCurdy, and Margaret N., the plaintiff, who intermarried with Kennedy Davis, in 1832, then in the 21st year of her age. On the 13th of June 1823, letters of administration on the estate were granted to Ira Blossom, Eliphalet Betts and Isabella Hurst, the widow: Ira Blossom having removed from the state, the Orphans’ Court, August 25th 1827, on petition of John Brooks, guardian of the minor heirs and the other administrators, appointed William Vincent in his place. In 1833, the petition of Betts and Vincent was presented to the Orphans’ Court, setting forth that the affairs and business of the estate were all in the charge of, and conducted by Isabella Hurst, the widow, and asking that they be discharged; the widow concurred in the prayer of the petitioners, and on the 28th of December 1833, they were discharged, and the widow continued in charge of the affairs of the estate as administratrix. No administration-account was ever filed, nor was the widow in any way relieved of her trust until her- death-in September 1861. On the 31st of December 1834, George Hurst, one of the heirs, presented his petition to the Orphans’ Court of said county, setting forth “ that his father, Henry Hurst, died intestate, leaving a widow, Isabella Hurst, and nine children (Robert, since deceased, .intestate and without issue) the names of all the heirs as before stated, and seised of certain lots and buildings in the borough of Meadville, (including Nos. 267 and 268, the lots in controversy,) and certain other lands in said county, all fully described in said petition. An inquest was awarded, as prayed for, and a writ of partition issued. In March 1835, the sheriff returned his writ and schedule annexed, setting forth “ that he had taken twelve good and lawful men to the premises mentioned in said writ, the parties in the same being severally warned, and as many as chose being present, and the jurors upon their oaths and affirmations, respectively do say, that the property as mentioned in said writ, can be parted and divided without prejudice to or spoiling the whole;,,and proceeded to divide the premises; valuing each purpart, and allotting to each heir, by name, his specific part of the premises, and to Isabella Hurst, widow of said deceased, a certain lot of ground fronting on North street, and adjoining Andrew Work’s lot on the north-east, and describing the same fully by metes and bounds; also, lots fronting on the south side of North street. Also, one hundred acres of land in Conneaut township, now sold.”
    March 11th 1835, the court confirmed the partition of the real estate of Henry Hurst, deceased, according to the return of the sheriff, made the 7th of March 1835, inst., and it is “ considered and adjudged by the court that the same be and remain firm and stable for ever.”
    No exceptions were ever taken to this partition, nor any appeal taken therefrom, and there was no evidence upon the trial of any dissatisfaction on the part of the widow or any of the heirs with the partition made by the inquest; on the contrary, the evidence was clear that the widow and the heirs entered into and took possession of the several purparts as allotted to them respectively. The. mansion house and lot were occupied by the widow and children from the death of Mr. Hurst until the partition. Under these proceedings, the mansion house and premises were allotted to George and Maria, intermarried with William A. Foster. Soon after the partition the widow, with the younger portion of her family, moved to the part allotted to her, and continued to reside thereon, with some of her children, until her death in September 1861. Several of the heirs, subsequent to the partition, sold the purpart allotted to them, respectively, and their deeds therefor recite the partition in the Orphans’ Court, as the source of their title, the premises conveyed being the same awarded to them in the proceedings in partition.
    On the trial below, the defendants sought to attack this partition, and alleged that the same was incomplete and invalid, and that the widow claimed an absolute title to that portion of her deceased husband’s estate set apart to her under the proceedings in partition. There was no pretence that Mrs. Davis, the plaintiff, has ever made any assignment or conveyance of her reversionary interest in the premises. Upon the trial there were several objections taken to the reception and rejection of evidence, and after testimony and arguments of counsel closed, the court charged the jury substantially, that the partition in the Orphans’ Court was inchoate, unconsummated and incomplete, and if the jury believed that Mrs. Isabella Hurst began to exercise acts of ownership, committing acts of ouster against the plaintiffs in common with the other heirs, for over thirty years prior to bringing this suit, she is barred from recovery in this action. The jury, under this charge, returned a verdict for the defendants, and to correct these and other errors this writ was taken.

      Joshua Douglas and Q. W. Tyler, for plaintiffs in error.
    The plaintiff in this case is one of the heirs-at-law of Henry Hurst, deceased, and on the trial below established by the record, and admitted facts, a complete title to the undivided one-seventh part of the premises in controversy. To defeat this the defendants undertook to show that Mrs. Isabella Hurst, the plaintiff’s mother, under whom the defendants claim, while in possession of a portion of the real estate of the ancestor, entertained some idea that a certain part of the real estate of her deceased husband was her own, and offered in evidence some declarations of claim and acts of the widow, which they asserted amounted to a disseisin of the plaintiff and the other heirs, and gave title to the widow in fee. In answer to this plaintiff gave in evidence proceedings in partition of the real estate of the ancestor in the Orphans’ Court in 1835. The plaintiffs maintain that this partition was the chart which defined and limited the title of the widow and heirs to the portions of real estate of the decedent allotted to them respectively ; that the partition of the estate of the ancestor ivas complete and efficient-for all the purposes contemplated by law; that the decree of the Orphans’ Court confirming this partition as made by the inquest was final and conclusive, and the regularity of the proceedings could not be inquired into in this action.

      J. J. Henderson, Wm. R. Bole and J. W. Smith, for defendants in error.
    The legal question to which the plaintiffs in error have addressed themselves is as to the legal effect of the partition proceedings in the Orphans’ Court. The court below charged that the proceedings were “ never consummated or completed as required by law, to vest title to the respective purparts in severalty.” The payment of the money or the giving of security for the shares of the other heirs is a condition precedent without the performance of which no estate vests: Harlan et al. v. Langham and wife, 19 P. F. Smith 235; Bellas v. Evans, 3 P. & W. 479; Bavington et al. v. Clarke, 2 Id. 115; Smith v. Scudder, 11 S. &. R. 325; Scott on Intestate Laws 414. Therefore the ruling of the court below as to the force and effect of the Orphans’ Court record was correct. And it was not an attempt in a collateral proceeding to impeach the decree of the Orphans’ Court. That decree was in effect but a confirmation of the appraisement; It is true the parties might accept the purparts designated by the jury at the appraisements made, and after twenty years the law would raise a presumption that the sums necessary to equalize the shares had been paid; but that would be nothing more nor less than a parol partition. And this is just what these heirs did. They used the forms of law to make the appraisement, and then took possession and disposed of their lands in this and other counties according to their family arrangement and agreement giving, the widow her lots in fee. A feme covert may become a party to an amicable partition and so may minors by their guardians: Willard et al. v. Willard, 6 P. F. Smith 119; Darlington’s Appropriation, 1 Harris 430; Calhoun v. Hays, 8 W. & S. 127; Weekes v. Haas, 3 Id. 521; Wetherill v. Micke, Brightly’s R. 135.
    But if this court should be of opinion that there was a perfect partition it would not be ground for reversal, for the reason that it was competent for the widow and heirs, after the partition of the lands in Crawford county, to agree that the widow should hold her purpart, not as tenant in dower, but in fee, in consideration of her release of dower in the lands in other counties; and such agreement, whether in parol or b-v deed, would render her possession thereafter adverse.
   Mr. Justice Gordon

delivered the opinion of the court, January 5th 1880.

From the evidence in this case, there is no doubt about the rectitude of the verdict. Isabella Hurst, widow of Henry Hurst, took possession of the property in dispute some forty-three years ago; and, since that time, she and her vendees, with the knowledge and assent of the heirs, have occupied it, made valuable improvements upon it, and in all respects regarded and treated it as though they were the absolute owners of the fee. Nor is there much doubt, but that she entered under a family arrangement, or parol partition, by which she was to have the Meadville lots in fee, in lieu of her dower.

That she so entered, is rendered probable from the fact, that of property of her husband, in other counties than Crawford, she claimed no dower, but permitted his heirs to divide it among themselves as they saw' fit; besides this, however, there was positive proof of such an arrangement. Whatever, therefore, "might have been the effect of the partition, there was some evidence to submit to the jury, that she held as owner of the fee and not merely for life.

Nevertheless, if the decree in partition was valid and binding upon the parties, if thereby a life estate only, vested in Mrs. Hurst, it would be all but conclusive evidence, that she not only entered but continued, during her life, to hold under that decree; and this, of course, would go far to defeat the defence of her vendees, so far as it depends on the Statute of Limitations.

Mrs. Hurst died in 1861; and if, under the decree, she entered as tenant for life, the owners of the remainder in fee could have no posessory action until her death, and the statute could only begin to run from that time: Ege v. Medlar, 1 Norris 86. If, however, that decree gave her no "right, then her entry was without right, and her claim and possession being adverse, the statute would give her a good title.

Now, the court held, that no title vested in her by force of the decree in partition; that, so far as it was concerned, she entered without right; that it was inoperative, except in so far as it was adopted as the basis, of the family settlement already referred to. In this we think the court was right.

In the first place, the jury appointed, under the proceedings in partition, to make division of the-property, finding that they could not make an equal partition of the estate, divided it as best they could, and appraised the purparts. Here, under the Act of 29th April 1832, their power ended. They proceeded, however, to allot the several purparts to the widow and heirs nominatim ; this of course, they had no power to do. This power belonged to the court alone, and that, only after choice by the heirs, in regular order. Nevertheless, the court adopted this allotment, and, though irregular, it might have been valid if the heirs had come into court and accepted under the decree; but they never did so; and it is hardly necessary to say, that, without such acceptance, the partition came to nothing. Neither court nor jury could impose owelty on either of the heirs, without his or her consent; neither could the widow he compelled to accept less than her dower. In the case of McClure v. McClure, 2 Harris 134, it is said, by Mr. Justice Coulter, that the judgment in partition does not even divest the title in common, until payment of owelty be made to the other parties in proportion to their respective rights; and that the taker’s title depends upon his making payment, and not upon the judgment in partition. It was also held, in Harlan v. Langham, 19 P. F. Smith 235, by our brother Sharswood, the present Chief Justice: “ That a partition, whether by action or proceeding in the Orphans’ Court, leaves the title as it found it. It dissolves tenancy in common, but it does not divest title in common, until payment of the shares of the other owners.” To the same effect is Smith v. Scudder, 11 S. & R. 325; and Bavington v. Clarke, 2 P. & W. 115. As, in the case in hand, neither of the heirs so much as accepted a purpart, it follows that the partition came to nothing; and that the title to the property remained just where the partition found it; that is, in the heirs in common, charged with the widow’s dower. To us, then, it seems clear, if the widow and heirs adopted this partition at all, it must have been by arrangement among themselves, and not by force of the decree of the court; and if this be so, the whole matter rested in parol and was properly determined by the jury, under the instructions of the court.

There is another difficulty in this partition, which to me seems insuperable. Notwithstanding the jury could not make equal partition between the widow and heirs, and so were forced to make a valuation, in order to equalize the purparts; yet one of those purparts, so valued just as the others, was assigned to the widow, without any consideration of, or reference to, the fact, that her estate was of one-third of the whole for life; and, furthermore, by that assignment and valuation, she became entitled to owelty. Here then, is certainly a fatal defect in these proceedings, for dower is not set off to the widow ; nor is there a pretence in that direction, but she is treated as an heir, and allotment made to her accordingly.

But again, if she may, in any case receive owelty, it follows, that she may be charged with it; but she could not be so charged without her consent, or peradventure, she might be charged out of her dower. She must therefore have the right of choice along with the heirs, but for this, no provision' is made in the statute; and this for the very good reason, that her estate is but for life, hence not equal to that of an heir. If she were required to pay owelty, it might be more than her estate would be worth, for it might be determined with her life, the next hour after payment; and the same objection lies to her receiving it.

How can a life-estate possibly be equalized with a fee ? Had the partition been regularly made; had the purparts been numbered and valued, and thus returned, as they ought to have been, to the court for allotment, it is certain the widow could not have been called upon to choose one of the purparts, but her dower would have been apportioned among the several allotments, and so it would have remained charged upon the whole estate until her death. Certainly this partition, at least as to the widow, was utterly worthless and void.

There is nothing else in the case which requires comment.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Commonwealth, ex rel. Torrey, versus Ketner.
    1. Where a person is being prosecuted in a court for a matter which is not an indictable offence by the law of Pennsylvania, or is one over which the court below has no jurisdiction, the Supreme Court will discharge such person on habeas corpus.
    2. Embezzlement by the cashier of a bank is not a common-law offence. An indictment therefor must rest upon some Statute or it cannot be sustained.
    3. Embezzlement by a cashier of a national bank is punishable solely under section 5209 Revised Statutes of the United States. The Acts of March 31st 1860, May 1st 1861 and June 12th 1878, of the General Assembly of this state, were not intended to provide a punishment for such officers, and the penalties of said acts cannot be imposed upon them.
    January 6th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Gr.een, J., absent.
    In the Supreme Court, Eastern District, of January Term 1880, No. 104.
    This was a writ of habeas corpus specially allowed by one of the justices of the Supreme Court. The facts were these: William Torrey petitioned the Supreme Court, setting forth that he was unjustly confined in the jail of the county of Schuylkill, to await trial upon a bill of indictment charging him, as the cashier of the First National Bank of Ashland, a bank organized, incorporated and established under the laws of the United States, with embezzling the moneys of said bank, and suggesting that the court in w'hich said indictment had been found had no jurisdiction of the offences charged in said indictment, and that he was therefore unlawfully detained in the custody of the warden of said jail, and praying for a writ of habeas corpus, &c.

      On the 10th of December 1879, His Honor, Justice Paxson, of the Supreme Court, specially allowed said writ, returnable forthwith before him.
    Ketner, the warden of - the jail, returned that said Torrey was in his custody, but alleged in said return “ that the said William Torrey is so restrained lawfully by virtue of a surrender by his bail upon a bail-piece, and also by virtue of a warrant issued out of the Quarter Sessions of the Peace of the said county of Schuylkill, and the charge mentioned in said warrant and bail-piece is shown by the copy of the record of said court, hereunto annexed, against said William Torrey.”
    By this record it appeared that Torrey had been arrested by state process and a prosecution begun before a justice of the peace, which was returned to the Quarter Sessions of Schuylkill county, where a true bill was found, the indictment consisting of three counts, each of which charged the petitioner, as cashier of the National Bank of Ashland, with having misappropriated funds of said bank, contrary to the form of the Act of Assembly in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania. The prisoner, on arraignment, pleaded “not guilty,” and the cause being called to trial, the jury disagreed and were discharged, when the court directed the prisoner to renew his recognisance. He was then surrendered by his bail and again arrested, whence his petition.
    Upon the petition and return, Paxson, J., on December 12th 1879, made the following order: “ The hearing in this case is continued to the first Monday of January next at eleven o’clock,
    A. M., before the court in banc, the relator to enter bail in the sum of $6000, conditioned for his appearance on the day aforesaid, and to remain and abide the order of the eourt in the premises, and in default of bail as aforesaid, the relator to be remanded.”
    On the first Monday of January 1880, the case was argued in this court.

      William A. Marr, James Byon, John W. Byon and William B. Mann, for relator.
    Under the Constitution of 1874, the Supreme Court has original jurisdiction in cases of habeas corpus.
    In this proceeding, the court does not assume a jurisdiction to review or reverse the sentence or judgment under which the prisoner is held, but by the exercise of the jurisdiction in habeas corpus, the court will look behind all forms, and inquire into and dispose of the case upon its merits, notwithstanding any technical questions or surroundings.
    When the proceedings in the court are void for want of jurisdiction, habeas corpus will lie: Brown v. United States, 14 Am. Law Reg. N. S. 566; Ex parte Lange, 18 Wall. 163; Ex parte Robinson, 6 McLean 355; The State v. Adams, 4 Black 146; The State v. Pike, 15 N. H. 83; The People v. Kelley, 38 Cal. 145; The People v. Sweetman, 3 Park Crimes R. 338; Martin v. Hunter, 1 Wheat. 304.
    The Act of 1878 contains in substance the whole of sections 116, 117, 118 and 119 of the Crimes Act of 1860, which relates to offences by the officers of banks. As this new act embodies the old acts it is a repeal of the old act. The new act of June 12th 1878, changes the penalty and the period of the Statute of Limitations. If the defendant should be convicted, he could not be sentenced under the Act of 1878, for it was passed after the alleged offence could have been committed, for this bank went into the hands of a receiver in 1877, and the old penalty is repealed. The Crimes Act of March 31st 1860, section 131, 1 Purd. 343, defines the penalty for any of these offences, to be imprisonment not exceeding two years, or be fined in any amount not exceeding $1000, or both or either, at the discretion of the court.
    The Act of 1878 makes the penalty, fine not exceeding $1000, and imprisonment by separate or solitary confinement at hard labor not exceeding six years. The defendant moved to quash the indictment in the court below for the reasons above stated, and then the Commonwealth claimed that the indictment was under the 36th section of the Act of 1st May 1861, entitled, “A supplement to an act to establish a system of free banking in Pennsylvania, and to secure the public against loss from insolvent banks, approved 31st March 1860.” The answer to the Commonwealth’s argument upon this section is that it is not a general act, and applies only to offences committed by officers, &c., of banks created under the Free Banking Act.
    There can, therefore, be no question as to the concurrent jurisdiction in this case of the state and the United States courts; for at the time of the adoption of the Constitution of the United States, there was no jurisdiction in our state court to punish embezzlement, &c., by officers of banks, and also because Congress has made the criminal jurisdiction over all offences cognisable under the authority of the United States, exclusive in the United States courts, except where the laws of the United States should otherwise provide: Houstin v. Moore, 5 Wheat. 1; 1 Kent’s Com. 398; Curtis Com. 176.
    The National Banking Act of 3d June 1864, contains no such proviso, and hence the jurisdiction over offences against the provisions of that act is exclusive in the national courts. And it follows if the state court has no jurisdiction over the particular offence charged against the relator that the indictment, and all the proceedings under it are coram non judice, are null and void, and this court will so say, inasmuch as the respondent set up these proceedings as the ground for detaining the relator: Commonwealth v. Felton, 101 Mass. 204; State v. Tuller, 34 Conn. 280; Commonwealth v. Barry, 116 Mass. 1.

      A. W. Sehalch and Hughes £ Harquhar, for respondent.
    A habeas corpus cannot be made a substitute for a writ of error in a criminal case: Commonwealth v. Deacon, 8 S. & R. 72; Commonwealth v. Lecky, 1 Watts 68; Commonwealth v. Keeper of Jail, 2 Casey 279 ; Passmore Williamson’s Case, Id. 9.
    It is to be noted by the copy of the indictment annexed to the return, that the charge against the relator is not for a violation of the provisions of any Act of Congress as stated in relator’s petition, but is simply a charge of embezzlement by an officer of a bank in violation of the laws of this Commonwealth.
    In Bletz v. Columbia National Bank, 6 Norris 87, this court rules that the courts of this state have jurisdiction of cases brought to recover the penalty of double the usurious interest taken by national banks in violation of the National Banking Acts, and this jurisdiction did not depend upon any provisions in said acts permitting the same.
    The same point has been substantially ruled in the same way by the Supreme Court of Ohio, in the case of Hade, Receiver v. McVagh, reported in the fifth volume of the Reporter 506, and has been substantially recognised by this court in the case of Lucas v. The Bank, 28 P. F. Smith 228.
    The courts of Pennsylvania have the power to try and punish the offence of -which Torrey was guilty. It is a crime against this State. She has the authority, as one of her reserved rights, to try and punish such offenders. The money embezzled belongs to individuals who own the stock of the bank. All that is conferred by Federal authority on the bank is its franchises. It is none the less therefore the property of the citizens of Pennsylvania. The source of title is of no consequence in a criminal prosecution. The question is simply one of the power of the State to protect its own citizens.
   Mr. Justice Paxson

delivered the opinion of the court, January 19th 1880.

_ It appears by the return to this writ, that the relator is held to answer an indictment in the Court of Quarter Sessions of Schuylkill county, charging him, as cashier of the First National Bank of Ashland, with having embezzled the funds and property of said bank. There are three counts in the indictment, each varying the form of the charge, but not essentially changing its substance.

It is almost needless to say, that a habeas corpus is not a writ of error. Hence, if the court below had jurisdiction of the offence, we cannot correct its rulings in this proceeding, however erroneous they may be. On the other hand it is equally clear, that if the relator is being prosecuted for a matter which is not an indict able offence by the law of Pennsylvania, or one over which the court below has no jurisdiction, it would be our right as well as our plain duty to discharge him. No authority is needed for so obvious a proposition.

Embezzlement by the cashier of a bank is not a common-law offence. This indictment must rest upon some statute of this state, or it cannot be sustained. Has it such support ? As preliminary to this question, it is proper to say, that section 5209 of the United States statutes, provides specifically for the punishment of cashiers and other. officers of national banks, who shall be guilty of embezzling the moneys, funds or credits of such institutions. The relator was not indicted under this section, and could not have been in a state court. Our own legislation upon this subject may be briefly stated. We have first, the Crimes Act of March 31st 1860, Pamph. L. 382, the 116th section of which prescribes and punishes the offence of embezzlement by any person, “being an officer, director or member of any bank, or other body corporate or public company.” Then we have the Act of May 1st 1861, Pamph. L. 515, entitled “ A supplement to an act to establish a system of free banking in Pennsylvania, and to secure the public against loss from insolvent banks, approved 31st March 1860,” which also prescribed and punished embezzlement by bank officers. Lastly, there is the Act of 12th June 1878, Pamph.' L. 196, which amends the aforesaid 116th section of the Act of 1860, by substituting a new' section in its place, and imposing a different punishment. This leaves the Acts of 1861 and 1878 as the only ones which could possibly support the indictment. It was urged, however, and with much force, that the Act of 1861 was only intended to apply to banks organized under the free banking law of which it forms a part; and that as to the Act of 1878, the offence charged in the indictment was committed prior to its passage. This ffict was formally conceded upon the argument, and while we might not be able for such reason to grant relief upon habeas corpus, it furnishes a conclusive reason why, upon a trial in the court below, the Commonwealth could derive no aid from the Act of 1878.

• We are spared further comment upon these acts for the reason that they have no application to national banks. Neither of them refers to national banks in terms, and we must presume, that when the legislature used the words “any bank,” that it referred to banks created under and by virtue of the laws of Pennsylvania. The national banks are the creatures of another sovereignty. They were created and are now regulated by the Acts of Congress. When our Acts of 1860 and 1861 were passed, there were no national banks, nor even a law to authorize their creation. When the Act of 1873 was passed, Congress had already defined and punished the offence of embezzlement by the officers of such banks. There was therefore no reason why the State, even if it had the power, should legislate upon the subject. Such legislation could only produce uncertainty and confusion, as well as a conflict of jurisdiction. In addition, there would be the possible danger of subjecting an offender to double punishment, an enormity which no court would permit, if it had the power to prevent it.

An Act of Assembly prescribing the manner in which the business of all banks shall be conducted, or limiting the number of the directors thereof, could not by implication be extended to national hanks, for the reason, that the affairs of such banks are exclusively under the control of Congress. Much less can we, by mere implication, extend penal statutes like those of 1861 and 1878 to such institutions.

The offence for which the relator is held, is not indictable either at common law or under the statutes of Pennsylvania. We therefore order him to be discharged.


text:
    Asay versus Lieber.
    1. When a contract of sale has been executed by a deed, the vendee, in order to defend against a security for the purchase-money, must show a title bad.
    2. In a suit upon a mortgage given for purchase-money, the affidavit of defence alleged that in the deed of conveyance the plaintiff covenanted with defendant for the free use of a certain alley, and that defendant had never had the use of said-alley, and claimed to set-off damages for the loss of said use against the amount of the mortgage. Held, that as the affidavit did not allege that at the time of the conveyance the plaintiff had not a good title to the alley-way it was insufficient.
    January 7th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of July Term 1879, No. 93-|.
    Scire facias sur mortgage by Annie E. Lieber against A. Merritt Asay.
    The defendant filed an affidavit and supplemental affidavit of defence, wherein, inter alia, he set forth :
    “ The mortgage sued on was given to secure a part of the purchase-money for the property. When buying the property, my purchase included the right of a certain alley, three feet wide, leading eastward into Tenth street. The deed of conveyance to me contains a covenant, by the plaintiff, granting to me ‘ the free and common use and privilege of the said three feet wide alley, as and for a passage-way and watercourse, at all times for ever.’ I have, however, never had the privilege or use of said alley so covenanted for, but the same has been obstructed by a building ever since the conveyance. The los.s of this privilege and use, has been a damage to me of at least $1000, and I ask that this amount shall be deducted from the claim made on said mortgage in this suit. * * *
    “When I bought the property in 1851, the plaintiff represented to me, that the alley belonged to the property she was selling me, and could be opened at any time. * * *
    “ Long after I had obtained my conveyance from the plaintiff, I found that her representations as to the condition of the alley, and her statements of the case, were untrue, at the time made to me. The alley had already and before her conveyance to me, been obstructed by the erection of a permanent building thereon, and I have not since been able to enforce the opening of this alley through the lot adjoining Tenth street, or to secure any compensation for the loss of the privilege.”
    The court entered judgment for want of a sufficient affidavit of defence, which action was assigned for error by defendant, who took this writ.

      Pi. K. Nichols, for plaintiff in error.
    The loss of the alley privilege was certainly a part failure of the consideration of the contract of sale, and a violation of the covenant in the deed. As such, the vendee has surely the right to set it off. No more appropriate occasion offers, than - in the suit to foreclose the mortgage, given for the identical purchase-money. Equity will relieve from the effects of an act done, or contract made, under a mistake, or ignorance of a material fact. The mortgage sued on, was given to secure a part of the purchase-money of the property. After the deed is made and mortgage given, this defect is discovered ; and, when at last the mortgage is to be foreclosed, then properly does the defence of the loss of the alley privilege arise: Roland v. Miller, 3 W. & S. 390; Jenks v. Fritz, 7 Id. 201.

      Robert S. Paschall and Pldwin S. Dickson, for defendant in error.
    It appeared by the affidavits of defendant, that his knowledge and the state of facts continued the same they were at the date of his purchase in the year 1851: Wilson v. Cochran, 12 Wright 107. And it does not appear that he ever made any effort to obtain the use of the alley, or that he was deprived of it by any legal right. Therefore he has not made out a good defence : Ludwick v. Huntzinger, 5 W. & S. 51; Spear v. Allison, 8 Harris 200; Thomas v. Harris, 7 Wright 231.
   The judgment of the Supreme Court was entered January 19th 1880,

Per Curiam.

The affidavit of defence does not allege that at the time the property — on which the mortgage for purchase-money was given — was conveyed to the defendant — the plaintiff had not a good title to the alley-way. This was in 1851, and for aught that appears, the defendant has lost the privilege of the alley, by his own neglect to prosecute his right to it. When a contract of sale has been executed by a deed, the vendee, in order to defend against a security for the purchase-money, must show a title positively bad. The representations made by the vendor at the time of the sale of her right to the alley-way, are clearly immaterial, unless they were false, and the mere fact of an obstruction then existing did not tend to prove them so.

Judgment affirmed.