author: by Sharswood, J.

text:
    Howard Express Company versus Wile.
    1. The doctrine that where there is a scintilla of evidence, it must be submitted to the jury, is exploded.
    2. When there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury however strong or persuasive may be the countervailing proof.
    3. Where a court should say that there is no evidence sufficient to authorize the inference, the verdict would be without evidence, not contrary to the weight of it.
    4. Evidence may be legally admissible as tending to prove a particular fact, which yet standing by itself is incompetent for the purpose.
    5. If a verdict is contrary to the charge of the court on a question of law, it must be set aside, whether it be the second or second hundredth.
    6. When the weight of evidence on one side is of such a character as not to incline the beam at all, then it is as much a question for the court as if there were not even a scintilla.

    February 10th 1870.
    Before Read, Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia,: No. 144, to January Term 1870.
    This was an action on the case commenced February 14th 1866, by Henry Wile against The Howard Express Company. The declaration was that the defendants were common carriers, and received from the plaintiff a package containing $165, to be carried from Reading to Philadelphia, and delivered to the plaintiff, and that the package was lost by the negligence of the defendants.
    The evidence of the plaintiff was that a sealed package, which in the receipt of the defendants was “said to contain $155,” had been delivered to the defendants, reached Philadelphia and was taken on Saturday, December 80th 1865, by the defendants’ proper clerk to the office of the plaintiff. The office was closed and locked, and the clerk, after making some ineffectual effort to find the plaintiff, wrote a notice for him to call at the Express office for the package, and slipped the notice under the door. The clerk made no further effort to deliver the package, took it back to the company’s office and gave it to the chief clerk. A person in the employ of the plaintiff afterwards got the notice, and on the same afternoon went to the Express office and asked for the package, but was told that the delivering clerk had not returned, and would probably stop at the plaintiff’s office again.
    The defendants gave evidence that the package was brought by the delivering clerk on the same afternoon and given to the chief clerk; he put it into a fire-proof safe in which such packages were kept. When the office was closed at night, the keys of the safe were handed to the night watchman. On Monday, it being the 1st of January, the office was closed between twelve and one o’clock, up to which time no one had called for the package; the keys were again delivered to the same watchman. During that night a fire occurred in the office building; the watchman opened the safe, took out all the packages he could find, put them into a box and locked the safe. The box was sent to the Adams Express office. Other packages were taken elsewhere, the police having assisted to remove the portable property. The fire was then falling about the watchman ; the back part of the office was in flames; the watchman was in great danger and was much excited. The safe was afterwards found in the cellar of the building, having fallen through. The defendants recovered all the packages w’hich had been taken away except three, that in question being one of them.
    The defendants presented the following points :—
    1. If the defendants promptly took the package to the place to which it was directed for the purpose of delivery, and no person was present authorized to receive it, the contract of defendants as carriers or forwarders was completed, and after that the defendants were only liable as bailees without hire, viz., for gross negligence.
    2. As such bailees the defendants are not liable for the loss of the package by fire while in their possession except for gross negligence.
    3. There is no evidence either of negligence or want of ordinary care on the part of the defendants.
    4. There is not sufficient evidence of the contents of the package to be submitted to the jury.
    The court answered the points as follows:—
    “ If the defendants promptly took the package to the place to which it was directed for the purpose of delivery, and no person was present authorized to receive it, the contract of defendants as carriers or forwarders was completed, and after that the defendants were liable only as bailees without hire for gross negligence.”
    The verdict was for the plaintiff for $185.
    The defendants moved for a new trial, and on the motion, it was agreed by the counsel for the parties, that the question of negligence might be considered and decided by the court in banc as if it had been reserved at the trial.
    On the motion for a new trial, Hare, P. J., delivered the following opinion, which will show the ground on which the case was ruled below.
    * * * “The question whether the loss was due to negligence was left to the jury, who decided it in favor of the plaintiff. It is the second verdict to the same effect, the former having been set aside by the court as contrary to the weight of evidence. Obviously, if the jury are the sole judges of such matters, it would be wrong to reverse a decision thus solemnly confirmed. It is, however, contended that their jurisdiction is concurrent, not exclusive ; that negligence is a wrong which should not be presumed, and that when there is no evidence from which an inference of misfeasance or of a want of due care can reasonably be drawn, the court should take the ease into their own hands, by directing a verdict for the party against whom the charge is made. Such is unquestionably the duty of the court when there is an entire want of evidence; but it has, until a very recent period, been generally if not universally held, that when conclusions of fact are to be deduced from testimony, the case will not cease to be within the province of the jury because the evidence is clear, and could only be interpreted in one way by a man of sound judgment. If the question is plain, there is the more reason for supposing that it will be decided correctly, and if this expectation is disappointed by the verdict, it may be set aside and a new trial granted.
    “ This rule would seem to be peculiarly applicable when the conduct and motives of individuals are put at issue, because such an investigation is one where the judgment of twelve men, drawn from the body of the county, may justly be preferred to the opinion of one, however wise or learned. The doctrine that questions of fact ought not to be left to the jury when the evidence does not admit of a reasonable doubt, has, however, been gaining ground of late years, both in England and this country. In the recent case of Ryder v. Wombwell, 4 Law Rep. Ex. 32, 39, Willes, J., in delivering the opinion of the Exchequer Chamber, said that 4 it was formerly the custom in all cases to leave the question to the jury if there was any evidence, even a scintilla in support of the case, but it is now settled that the question for the judge (subject of course to review) is, as stated by Maule, J., in Jewell v. Parr, 13 C. B. 916, not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.’ In Toomey v. R. W. Co., 3 C. B. N. S. 150, Williams, J., enunciates the same idea thus: 4 It is not enough to say that there was some evidence. A scintilla of evidence clearly would not justify the judge in leaving the case to the jury. There must be evidence on which they might reasonably and properly conclude that there was negligence;’ the fact in that case to be established. And in Wheelton v. Hardisty, 8 Ex. 262, in the well considered judgment of the majority of the court it is said: 4 The question is, whether the proof was such that the jury could reasonably come to the conclusion that the issue was proved. This,’ they say, 4 is now settled to be the real question in such questions by the decisions in the Exchequer Chamber, which have, in our opinion, so properly put an end to what had been treated as the rule that a case must go to the jury if there were what had been termed a scintilla of evidence.’
    “ If these views prevailed in Pennsylvania, there would be little difficulty in saying that the jury should have been instructed to find for the defendants, and that judgment should now be entered in their favor, under an agreement made by counsel that the point should be decided as if it had been reserved at the trial. There is nothing in the evidence indicating negligence, and much to repel such an inference. But the, decisions in this state have, with little or no variation, followed the ancient doctrine that the jurors should respond to questions of fact; the judge, to those involving matters of law. It cannot be denied that this rule may sometimes be attended with inconvenience, but the advantage resulting from it would seem far to outweigh the evils. The distinction between law and fact, is one easily comprehended and applied. It affords an important safeguard against any undue extension of the power of the court, and can hardly be laid aside without endangering the institution which has always been esteemed the peculiar excellence of our system of jurisprudence. I may be permitted to express my belief, that such a result would be one much to be regretted. If there ^ere no other reason for preserving the trial by jury, it should be cherished as a means of popular instruction. It is by taking part in the administration of their laws that the people can best learn to make them. Nor is this all. The jury is also a school for the jurist and the judge. In the speeches of counsel, in the charge of the court the law ceases to be an abstract science, and descends to the level of everyday life. Legal rules are divested of their technicality, and assume the proportions of common sense. It is in a great measure to this cause that the common law owes the practical character by which it has been distinguished for many years.
    “ I do not, however, mean to imply that the benefits of trial by jury are merely collateral and indirect, and am, on the contrary, convinced that the great majority of causes are more satisfactorily determined by this method than they could be by any other. Nothing is more common than to hear verdicts censured, but it does not follow that the jurors are always wrong when they differ from the lawyers and tibe judge. They take' the popular view of every question — that which strikes the common mind, or appeals to the. individual conscience — and although this is often tinged with error, it still contains elements of great importance in the investigation of moral and legal truth. I might go further, and speak of the value of the jury as giving the minority an opportunity to be heard in a country where all the branches of the government have a tendency to become the representatives of a part as opposed to the whole. But enough has perhaps been said to show that in a matter of so much importance we should be slow to alter what time has sanctioned. And it is very obvious that if a change is requisite it should come from the court of last resort, who can look at the subject in all its bearings, and establish a uniform rule throughout the state. The Supreme Court have said that when a culpable want of care is shown, the judge should pronounce it negligence; .but there is as yet no decision that when the conduct of a party is impugned as negligent the jury can be instructed that there was no want of care. Unless the issue turns on a single point the cases are obviously not the same or even analogous. The court may perhaps say that a particular act of omission is or is not wrongful in itself, or relative to the other facts in evidence, but they cannot go further consistently with the principle on which the trial by jury is based.
    February 17th 1870,
    “ The rule for a new trial is discharged, and judgment entered for the plaintiff on the verdict.”
    The defendants took a writ of error, and assigned for error, the . answer to their points, and the entering of judgment on the reserved question.

      T). Webster, for plaintiffs in error.
    — There was no sufficient evidence of negligence. The court should have determined it as matter of law: Pittsburg & Con. Railroad v. McClurg, 6 P. F. Smith 294; Catawissa Railroad v. Armstrong, 2 Id. 286; Penna. Railroad v. Ogier, 11 Casey 71. Negligence is the absence of care according to the circumstances: Frankford Turnpike v. Trenton Railroad, 4 P. F. Smith 345.

      H. Gr. Eartranft and W. Ernst, for defendant in error.—
    Non-delivering goods is primá, facie evidence of negligence, and throws the burden of proof on the defendant: Verner v. Sweitzer, 8 Casey 208. Where the deposit of the goods until delivery is merely accessary to the carriage, the common carrier is liable in case of loss by fire in the mean time: Clarke v. Needles, 1 Casey 338. If the carrier cannot deliver, he must still keep the goods safely in the mean time: Tanner v. Oil Creek Railroad Co., 3 P. F. Smith 415.
   The opinion of the court was delivered,

by Sharswood, J.

— The doctrine that wherever there is a scintilla of evidence of a material fact, the question must be submitted to the jury has not stood the test of experience, and it has accord-' ingly been exploded in England: Ryder v. Coombwell, Law Rep. 4 Exch. 34. The more reasonable statement of the rule is, that where there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof. A court may set aside a verdict as against the weight of the evidence, but that is the most they can do to assist the party. But in a case in which a court ought to say that there is no evidence sufficient to authorize the inference, then the verdict would be without evidence, not contrary to the weight of it. Wherever this is so they have the right, and it is their duty to withhold it from the jury. Evidence may be legally admissible as tending to prove a particular fact, which yet by itself is utterly insufficient for the purpose. It may be a link in the chain, but it cannot make a chain unless other links are added. Where successive juries from prejudice against one party or sympathy for the other, persist in finding verdicts wholly unwarranted, must the court permit palpable injustice to be done ? If a verdict is contrary to the charge of the court on a question of law it must be set aside, whether it be the second or the second hundredth. Where evidence on both sides is to be weighed, so as to determine on which side the scales incline, the jury is the appropriate tribunal. But where the weight on one side is of such a character as not to incline the beam at all — what the civilians term a mere adminiculum, good to help something else but nothing in itself — nothing but a conjecture — then it is as much a question for the court as if even this scintilla was absent. The rule thus understood does not impair the true value of trial by jury. It restrains it from arbitrary power, which would endanger its existence, and might lead to its entire abolition, a result which I agree with the learned President of the District Court, would be very much to be deprecated.

The plaintiff’s own evidence in the court below showed that the defendants had fully performed their duty as carriers. So the jury were properly instructed. The package was taken to the plaintiff’s place of business during business hours, and no one was there to receive it. The office was closed — no one was about. Notice was left under the door, which in fact was received. All that was done was to send to the office of the Express Company, where the servant or clerk was told that the company’s messenger was out delivering packages and had not yet returned. No other or further demand was made. Here the plaintiff rested, and here he might have been nonsuited had a motion for that purpose been made. On his own showing, the onus of proving negligence was upon him. The defendants, however, took up the case at this point. It was on Saturday the package was received, and attempted to be delivered. When returned to the defendants it was deposited in their fire-proof. On the Monday night following a fire broke out in the building, in no way pretended to be attributable to the defendants or any of their servants. Their watchman having the key of the fire-proof, left with him for the very purpose of using in such a contingency, opened it and removed the packages in order to have them taken to some place of safety. In the hurry, excitement and confusion of the scene this particular package was lost or stolen. What was there in this to leave to a jury as evidence of negligence ? We think there was nothing. It is said that if the fire-proof had not been opened, all that it contained would probably have been saved. The fire-proof fell through into the cellar, and was found uninjured the next day. But we are not to judge the actions of men by the event. The question is, did the watchman act with reasonable care and prudence ? Had he suffered the package to remain when he had time and opportunity to remove it, and it had been burned up by the fire, or the fire-proof broken open and rifled of its contents, the imputation of negligence would have been much more plausible.

As it was agreed between the counsel, on the motion for a new trial, that the question of negligence might be considered and decided by the court in banc, the same as if it had been reserved at the trial, and it appears by the record that the court gave judgment for the plaintiff on the point reserved, we have the unquestionable right, besides reversing the judgment, to enter such a judgment as the court below ought to have done.

Judgment reversed, and now judgment for the defendants below on the point reserved.


source: Caselaw Access Project

author: by Agnew, J.

license: Public Domain

text:
    Wells et al. versus McCall et al.

    1. A donor may create an active, operative trust, to preserve an estate and protect it against the husband or creditors of a beneficiary or to make it conduce to some useful and legal but temporary purpose, without infringing on the law against perpetuities.
    2. Entire freedom of disposition in a beneficiary, would impose an unreasonable restriction on the power of a benefactor to provide for the beneficiary’s future support.
    3. A trust will be supported notwithstanding the cestui que trust is a feme sole, provided that it be done in immediate contemplation of marriage.
    4. “Immediate contemplation of marriage,” means a marriage presently in view of the donor to take place with a particular person a short time after the instrument is to go into effect.
    5. The marriage must be in immediate view when the trust is created.
    6. On the termination of the coverture, the trust falls and is not revived by a second marriage.
    7. That a marriage is in view, need not appear by the instrument creating the trust.
    8. The creation of the trust is evidence that the marriage was in contemplation of the donor, and when this is followed within a reasonable time by its consummation, it concludes the proof.
    9. McBride v. Smyth, 4 P. F. Smith 245, approved.
    March 4th and 5th 1870.
    Before Read, Agnew and SharSwood, JJ. Thompson, C. J., at Nisi Prius.
    Appeal from the decree of the Supreme Court at Nisi Prius: in Equity: No. 45, to January Term 1869.

      This was a hill filed by Kirk B. Wells, and Mary W. his wife (formerly Mary Wilcocks) in her right, against Peter McCall, Harry McCall and Alexander Wilcocks, trustees under the will of Joseph R. Ingersoll, deceased, and Charles Ingersoll, executor of the said will, and in his own right.
    This was an amicable bill for the partition and division of the estate of Joseph R. Ingersoll, deceased.
    Mr. Ingersoll died in February 1868, leaving a will dated in 1862, and republished in 1864, of which the material parts are these:—
    “I give, &c., to my said nephew, Charles Ingersoll, and to the trustees hereinafter named of Mary Wilcocks, now living with me, the niece of my late wife, his and their heirs, executors, administrators and assigns, the sum of $100,000, equally to be divided between them, share and share alike; that is to say, one-half, or $50,000, to Charles Ingersoll, &c., and the other half, or $50,000, to the trustees hereinafter named of Mary Wilcocks, &c. These two bequests are to take effect in preference of all others.
    “I nominate and appoint Peter McCall, Harry McCall and Alexander Wilcocks, and the survivors and survivor of them, trustees of the said Mary Wilcocks, with power and authority to receive the aforesaid legacy and sum of money or effects for her sole use and benefit, whether she be married or single, free from any debt, control or liability of any husband, and, under this restriction, subject to her direction and disposition during her life, and, after her death, subject to her last will and testament.
    * * * * “ The rest, residue and remainder of my estate and effects, which may belong to me at the time of my death, I give, devise and bequeath one-half thereof to Charles Ingersoll (my nephew) aforesaid, his heirs, executors, administrators and assigns; and the other half thereof to the trustees aforesaid of Mary Wilcocks, their heirs, executors, administrators and assigns, in like manner and with the same limitations, power and authority, uses and purposes, as have been expressed with regard to the one-half of $100,000 hereinbefore given to said trustees.”
    The bill set forth these provisions of the will, and that, since the testator’s death, his niece, the complainant Miss Wilcocks, had married the complainant Mr. Wells, and averred that they were advised that, under the said will, Mrs. Wells was entitled to an equitable estate in and to one-half of the testator’s estate; that the trust attempted to be created for her was inoperative; and prayed for—
    1. An account;
    2. Partition and division of the said estate between the complainants and the defendants;
    3. An injunction restraining the said defendants from making partition and division among themselves, &c.

      To this bill the defendants filed separate answers. The trustees averred “ That the said Mary Wilcocks, from her early youth to the time of the testator’s death, was an inmate of his house, and for many years prior thereto was the only member of his family who resided with him; and that she kept his house, and by her faithful care and devotion to his comfort, contributed largely to his happiness.

      “ And they aver, upon information and belief, that at the time of the execution of the said will and codicil, the said Mary Wilcocks was engaged to be married to the said Kirk B. Wells, and continued to be so until the testator’s decease.
    “ They do not know, and therefore cannot aver, that the fact of this engagement was made known to the testator; but they aver, upon information and belief, that the testator did contemplate that a marriage would take place between the plaintiffs after his decease, and spoke of it as a thing likely to occur.

      “ That the said intended marriage was not solemnized during the life of the testator, by reason of the said Mary’s unwillingness to leave his residence in his declining years; but the said marriage was solemnized about a month after his decease.
    “ And the respondents submit that the provisions of the said will, creating the trust for the said Mary, were made in contemplation of the said marriage.”
    They submitted to act as the court should direct.
    The separate answer of the defendant, Charles Ingersoll, averred as follows: — “ I have been informed and believe, that the said Kirk B. Wells and Mary Wilcocks, now Mrs. Mary W. Wells, were at the time of and for several years before the periods of the making and republishing of the said will, and thence continuously to the period of the said marriage, under mutual engagement to marry, their marriage to be solemnized upon the said testator’s death, and that the said mutual engagement to marry, and proposed solemnization of the said marriage at the period of his death, w'ere, as I have also been informed and believe, well known to the said testator; and, as the said testator, by the trust in the said bill mentioned, provided, in contemplation, as I firmly believe, of solemnization of the said marriage at the period of his death— the more especially as the said plaintiff, Kirk B. Wells, was in trade, and yet is, and his own property and means liable to the hazard thereof — the estate and effects devised by him to the said Mrs. Mary W. Wells, I deny the said trust to be, as insisted in the said bill, inoperative and void.”
    The case was heard at Nisi Prius, upon bill and answer, before Mr. Justice Williams, who dismissed the bill on the 20th of March 1869.
    The plaintiffs appealed, and assigned the decree for error.

      W. IT. Bawle and B. Q. McMwrtrie (with whom was Strong), for appellants.
    — A married woman has no other powers over her separate estate than those given by the instrument creating the trust: Lancaster v. Dolan, 1 Rawle 231. When coverture ceases by the death of the husband, restraint upon the wife’s separate estate is removed: Smith v. Starr, 3 Wharton 66; Hamersly v. Smith, 4 Id. 126; Harrison v. Brolaskey, 8 Harris 302; Faries’ Appeal, 11 Id. 30; Van Rensselaer v. Dunkin, 12 Id. 252; Talbot v. Calvert, Id. 328; Dubs v. Dubs, 7 Casey 154; Nice’s Appeal, 14 Wright 148. A trust for the separate use of a married woman will not, in Pennsylvania, attach unless created in immediate contemplation of marriage: McBride v. Smyth, 4 P. F. Smith 250; Potts’s Appeal, 6 Casey 168. “ Immediate,” popularly means “ instant,” “present;” the technical meaning is the same. Deeds for the separation of husband and wife are valid, provided their object be an actual and immediate, and not a contingent or future, separation : Hutton v. Duey, 3 Barr 104; Dillinger’s Appeal, 11 Casey 357; Hitner’s Appeal, 4 P. F. Smith 114. Articles for future separation will not be enforced : 2 Story’s Eq. Jur. § 1428; Adams’ Eq. 44. The same application of the word must be made to marriage: Legge v. Goldwin, Cases Temp., Talbot 20; Paige v. Horne, 9 Beavan 578. The fact that a trust is created in contemplation of marriage should appear by the instrument. The trust here was to receive the legacy of one sui juris, and this gives her the legal estate. To give effect to the words “ subject to her direction and disjoosition during her life, and after her death subject to her last will and testament,” they must be construed to give the legatee an absolute estate. A power of “ disposing of” an estate, whether principal or income, gives an absolute estate: 1 Roper on Legacies 429; 2 Jarman on Wills 189; Dice v. Sheffer, 3 W. & S. 419; Smith v. Fulkinson, 1 Casey 109; Diehl’s Appeal, 12 Id. 120; Brown’s Estate, 2 Wright 293; and, if the estate be a separate one, enables the cestui que trust to give the property: Towers v. Hagner, 3 Wharton 48; Hoover v. The Samaritan Society, 4 Id. 453.

      J. M. Thomas and I. Sazlehurst, for appellees.
    — A separate estate may be created in favor of an unmarried woman, which will be valid during coverture. The case of McBride v. Smyth, 4 P. F. Smith 245, is not the rule: Fullet v. Armstrong, 4 Myl. & C. 377. The following cases were examined and compared by the counsel: Beable v. Dodd, 1 T. R. 193; Anderson v. Anderson, 2 Myl. & Cr. 427; 1 Sugden on Powers 206; Woodmeston v. Walker, 2 R. & M. 197; Brown v. Pocock, Id. 218; Barton v. Briscoe, Jacob 603; Jones v. Salter, 2 R. & M. 208. The doctrine in Massey v. Parker, 2 M. & K. 174, was speedily overturned: Davies v. Thornycraft, 6 Simons 420. Lancaster v. Dolan, 1 Rawle 231, is the same as this. There is a difference between a trust created by the will of a testator for protection against the future marriage of another and a trust created for the like purpose by conveyance of the party owning the estate: Pullen v. Rianhard, 1 Wharton 520; Wallace v. Coston, 9 Watts 137; Lyne v. Crouse, 1 Barr 113; Thomas v. Folwell, 2 Wharton 11; Dorrance v. Scott, 3 Id. 309. In McBride v. Smyth the question of the trust for the testator’s daughter was one of minor importance, another question was the principal one. A trust may be created for the separate use of an unmarried woman : Snyder v. Snyder, 10 Barr 423; Shirley v. Shirley, 9 Paige 363 ; Nix v. Bradley, 6 Rich. Eq. 43; Fears v. Brooks, 12 Geo. 197; Fellows v. Tann, 9 Alab. 999; Beaufort v. Collier, 7 Humph. 487 ; Fisher v. Taylor, 2 Rawle 33; Vaux v. Parke, 7 W. & S. 19; Norris v. Johnson, 5 Barr 289; Ashhurst v. Given, 5 W. & S. 323; Holdship v. Patterson, 7 Watts 547 ; Brown v. Williamson, 12 Casey 338; Eyrick v. Hetrick, 1 Harris 491; Barnett’s Appeal, 10 Wright 392. Mackason’s Appeal, 6 Id. 330, only establishes that a settlement cannot he made by a person sui juris of his own property free from liability to his creditors. That the trust was created in contemplation of marriage need not appear in the instrument. Parol evidence to show it may be resorted to: 1 Greenleaf on Ev. 325 — 7; Brown v. Thorndike, 15 Pick. 400; Doe v. Martin, 1 N. & Man. 524; 1 Jarman on Wills 342 (in note); 2 Id. 525; Rogers v. Smith, 4 Barr 99; Rewalt v. Ulrich, 11 Harris 391; Bush’s Appeal, 9 Casey 86; Jones’s Appeal, 7 P. F. Smith 372. Mrs. Wells had only a life estate with power of appointment. The absolute estate to the trustees would not affect the amount of her estate: Hill on Trustees 239 ; Koenig’s Appeal, 7 P. F. Smith 354. A power of appointment does not enlarge a life estate: Jackson v. Robbins, 16 Johns. 388; 2 Kent’s Com. 526; Flintham’s Appeal, 11 S. & R. 19; Morris v. Phaler, 1 Watts 390; Hess v. Hess, 5 Id. 191; Girard L. Ins. Co. v. Chambers, 10 Wright 490; Fisher v. Herbell, 7 W. & S. 63; Porter v. Thomas, 23 Geo. 467; Anderson v. Dawson, 15 Vesey 532. The gift cannot be construed without treating “ during her life” as consistent with a fee which it is not: Fisher v. Herbell, 7 W. & S. 63. If she has a fee it is equitable only : Brown v. Wright, 8 Wright 224; Jones’s Appeal, 7 P. F. Smith 369. “ Disposition” is often used in connection with estates for separate use; Ex parte Ray, 1 Madd. 199; Prichard v. Ames, 1 T. & R. 222; Pullen v. Rianhard, 1 Wharton 515; Yardley v. Raub, 5 Id. 118; Methodist Ep. Church v. Jaques, 3 Johns. Ch. 87; Reid v. Lamar, 1 Strobhart’s Eq. 37.
    May 5th 1870,
   The opinion of the court was delivered,

by Agnew, J.

— The late Joseph R. Ingersoll, Esq., by, his will made in 1862, republished in 1864, and proved in 1868, bequeathed $100,000 to his nephew, Charles Ingersoll, and to the trustees of Mary Wilcocks, a niece of his late wife. “ One-half, or $50,000, to Charles Ingersoll, his heirs, executors, administrators and assigns, and' the other half, or $50,000, to the trustees hereinafter named, of Mary Wilcocks, their heirs, executors, administrators and assigns.” He directs these two bequests to take effect in preference of all others, and proceeds thus: “ I nominate and appoint Peter McCall, Henry McCall and Alexander Wilcocks, and the survivors and survivor of them, trustees of the said Mary Wilcocks, with power and authority to receive the aforesaid legacy and sum of money or effects for her sole use and benefit, whether she be married or single, free from any debt, control or liability of any husband, and, under this restriction, subject to her direction and disposition during her life, and, after her death, subject to her last will and testament.” After certain specific legacies, he devises and bequeaths one-half of the residue and remainder of his estate to the same trustees of Mary Wilcocks, their heirs, executors, &c., in like manner and with the same limitations, power and authority, uses and purposes, as were expressed with regard to the $50,000 given to the said trustees. Mrs. Wells’ bill in this case was to declare this trust inoperative, and to compel an account by the executor of the will, and a partition between Charles Ingersoll and herself. The important question is, whether the trust created by Mr. Ingersoll is valid and effectual; Mary Wilcocks being a feme sole at the death of the testator. In Barnett’s Appeal, 10 Wright 392, it was held, that a devise to trustees to lease real and invest personal estate, to collect the rents, interest and profits, and to pay over to the three children of the testator during their lives, is an active, operative trust, and is not executed by the statute, or by any principle of the state common law, notwithstanding the cestui que trusts were males and sui juris. This case has been followed by a number of decisions running in the same direction, though diversified in circumstances, all supporting the power of the donor or devisor to control his gift by creating an active, operative trust, when necessary, to promote a proper and useful purpose, without infringing upon the law against perpetuities. Previous to Barnett’s Appeal, the doctrine of trusts had not been uniform or consistent, owing to the strife between the will of the donor and that public policy which forbids restraints on alienation. In Dodson v. Ball, 10 P. E. Smith 492, we noticed these opposing principles underlying the doctrine of trusts, and the predomination of each, as the judicial mind happened to incline to the one or to the other. Arranging the cases in their respective classes, Lancaster v. Dolan, 1 Rawle 231, decided in 1829, led the column in favor of the right of the donor to control his gift; Kuhn v. Newman, 2 Casey 227, decided in 1856, headed the opposite column in favor of the policy of striking down trusts that before had been believed to be valid. Then came Barnett’s Appeal, decided in 1864, overruling Kuhn v. Newman, and turning back into the former direction which has been followed by others. Looking, therefore, at the earlier and later authorities, it must be taken to be settled that an active and operative trust may be created to preserve an estate, and protect it against the husband or creditors of a beneficiary, or to make it answer some useful and legal but temporary purpose, without infringing upon the law against perpetuities.

We are met in this case with the objection that Mrs. Wells, then Miss Wilcocks, was a feme sole at the testator’s death, when his will took effect, and it is contended that the trust being intended for a protection against a coverture not then existing, could not take effect. The question therefore arises upon the power to provide a trust for a future marriage, and confronts us with the old and opposing forces already referred to. The ground of public policy invoked to destroy the trust, is the restraint it imposes upon the freedom of alienation; a restraint which, in Smith v. Starr, 3 Whart. 62, and Hamersly v. Smith, 4 Id. 126, is recognised as being ineffectual, as well in the case of a female as in that of a male, when repugnant to the nature of the gift. If therefore an absolute estate in personalty or a fee in realty be intended to be vested in a cestui que trust, her condition as a feme sole would, on this principle, render inoperative any attempt to fetter her power over the estate by means of a trust for a future and as yet uncertain purpose. But on all hands it is admitted that entire freedom of disposition would impose an unreasonable restriction upon the power of a parent (or indeed any other benefactor) to provide for the future support of a daughter. And Rogers, J., says precisely this in Smith v. Starr, supra; while the whole doctrine of Lancaster v. Dolan, supra, and its sequents is filled to saturation with this admission, and its principle acted upon therein. The necessary consequence of this conflict between private right and public interest is a compromise, which yields the doctrine of policy so far as to enable the donor to impress a trust upon his gift when it is done in “ immediate contemplation of marriage.” This is conceded in Smith v. Starr, Hamersly v. Smith, Cochran v. O’Hern, 4 W. & S. 95 (per Grier, P. J.), and in McBride v. Smyth, 4 P. F. Smith 245, a case most vigorously attacked by the trustees of Mrs. Wells, but which we think states the true doctrine in this state. The doctrine is supported also by Lancaster v. Dolan, Wallace v. Coston, 9 Watts 137, Lyne’s Executor v. Crouse, 1 Barr 113, and Rogers v. Smith, 4 Id. 93. In all these cases the trust was by deed, created by the owner of the property while a feme sole, to protect her estate upon a future marriage, and without a recital of the intended marriage; and in none was the validity of the trust doubted for a moment. We take it, therefore, as settled, that the trust will be supported, notwithstanding the cestui que trust is a feme sole at its creation, provided that it be done in immediate contemplation of marriage. This leads us to inquire what is meant by an immediate contemplation of marriage. Evidently the expression means in contemplation of an immediate marriage —one presently in view of the donor, and to take place in a short time after the instrument is to take effect — in contemplation of marriage with a particular person, says Gibson, C. J., in Hamersly v. Smith, supra. That the marriage must be in immediate view at the time of the creation of the trust, is proved by all the cases which decide that on the termination of the coverture the trust falls and is not revived by a second marriage, for if any marriage would answer to the provision for the trust, a second would as well as the first. But a second marriage is evidently a thing not in immediate contemplation, being cut off from view by the uncertainties of a first marriage, the death of the husband, and an intention to marry a second time. The marriage then being one in view of the donor or devisor at the time of creating the trust, the question arises,'how is this to appear? It is argued with plausibility that it must appear in the instrument creating the trust. At first this position seemed to me to have weight. But clearly it is contrary to the whole current of decision. An examination of the foregoing cases, to which may be added Snyder v. Snyder, 10 Barr 423, wherein the trust has been supported in favor of married women who were sole at the time the estate vested, will discover the 'fact that in none did the contemplated marriage appear specifically in the instrument creating the trust. It is asking too much of us, to suppose that the bar and the bench have suffered so many cases to pass without question, if it were deemed to be the rule that the intended marriage should he recited in the instrument. It is argued that it leads to uncertainty in the title, and that after a number of years a conveyancer would find it difficult to ascertain whether a marriage had been in immediate contemplation or not. Perhaps the easiest answer would be, that the law has been so understood since Lancaster v. Dolan, more than forty years, and the evil has not made itself felt, or drawn forth an adverse decision. But a contemplated marriage is a fact that discloses itself, and is perhaps as easily ascertained by concomitants as the existence of any other fact not patent on the face of the paper, on which titles sometimes depend. Such is always the case in estates upon condition precedent or subsequent, or dependent on entry or re-entry, &c. There can be no complaint of any want of notice to lead to the fact, for the creation of the trust itself puts 'every one on inquiry, and leads at once to knowledge. The creation of the trust constitutes the evidence of the fact being in the contemplation of the donor or devisor, and when this is followed within a reasonable time by consummation of the marriage, it concludes the proof. If the uncertainty be too great, the remedy must come from the legislature, for we are incompetent to change a rule of property sanctioned by so many decisions. To do it by judicial decision would overturn many trusts having their root in Lancaster v. Dolan, Wallace v. Coston, Lyne v. Crouse, Rogers v. Smith, Smith v. Starr, Hamersly v. Smith, et id genus omne. In all those cases in which an owner of an estate has conveyed in trust for herself upon marriage, without a recital of the particular marriage to take place, the very fact that one sui juris thus limits her own power upon marriage, affords a strong presumption that a speedy marriage is intended.

Having these principles in view, it is obvious that the creation of the trust for Miss Wilcocks by Mr. Ingersoll, followed by her almost immediate marriage after his death, in connection with the facts set forth in the answers of her well-known engagement to Mr. Wells, and the testator’s knowledge of it, leave no doubt that the trust was created with a view to this particular marriage, and is therefore operative as well as active, as it clearly is.

The trust being valid, the quantity of estate or interest vested in Mrs. Wells is not material, for whether it be for life or absolute, the trust remains during coverture, which cannot outlast her life, to protect the estate from the control of her husband and from any liability she might be influenced to create for the payment of his debts. This is the very restriction the testator intended to impose upon his gift that it might not be diverted from her to him or to his creditors, and to effectuate this purpose he placed it in the hands of the trustees. Even if in all other respects her estate was by the terms of the will to be subject to her direction and disposition during her life, yet as to this restriction the trustees must still preserve their grasp of the fund to prevent that direction and disposition from being exercised in favor of the forbidden object.

The decree of the Court of Nisi Prius is therefore affirmed at the costs of the appellants.


text:
    Megargee versus Naglee et al.

    1. A gift by a will was of real and personal estate to trustees, “the one-third in trust for my daughter, wife of S. M. and her heirs * * for the sole and separate use of my said daughterher share of personalty to be invested and the net income paid to her for her “ sole and separate use,” the trustees to have the care of the real estate and pay the rents, &c., to the daughter for her sole and separate use, and after her death “ her share to be for the use of her heirs and legal representatives,” with authority to her to will as “fully as if she were a feme sole.” The husband died: Held, that the estate became executed in the daughter and decreed that the trustees convey the legal estate to her.
    2. The will authorized the trustees to make necessary improvements and to make partition; this being done the active duties of the trust ceased, and the trust continued, only to protect the daughter’s estate during coverture.
    3. The gift was a fee in the realty and an absolute estate in the personalty.
    March 4th 1870.
    Before Read, Agnew and Sharswood, JJ. Thompson, C. J., at Nisi Prius.
    Appeal from the decree of the Supreme Court at Nisi Prius: Of January Term 1870, No. 9.
    This was a bill filed by Margaret Megargee against Henry M. Naglee and others, trustees under the will of John Naglee, deceased. John .Naglee was the father of the plaintiff; he died in February 1852. By his will he gave one-half of the residue of his estate to Henry M. Naglee and others “ in trust for my three daughters; the one-third of the said one-half in trust for my daughter Margaret Megargee, the wife of Samuel Megargee and her heirs; * * and for the sole and separate use of each of my said daughters.”
    He then authorized the trustees, if they thought best, to set out '.each daughter’s share in severalty; and proceeded: “ It is my will that the share of the personal estate to which my daughters shall be entitled, shall be invested by the said trustees in good and safe securities, and the net income thereof to be paid my said daughters for their sole and separate use. And the said trustees shall have the care and management of the real estate of my said daughters, shall receive the rents thereof, pay the taxes, and make all necessary repairs and improvements upon the same, and let any portions of the vacant lots upon ground-rent, and make and execute all necessary deeds and conveyances for that purpose, &c., and after deducting, &e., to pay over the residue of the rents and profits to each of my said daughters, to her sole and separate use, and her receipt shall be a sufficient discharge for the same, and after the death of either of my said daughters, her share to be for the úse of her heirs and legal representatives; and I do hereby authorize my said daughters to dispose of any share or part of the said property hereby bequeathed and devised to her by her last will and testament, &e., as fully and effectually as if she was a feme sole and unmarried.”
    May 5th 1870,
    Mrs. Megargee’s share in the estate devised under the will was afterwards allotted to her. Her husband died June 29th 1865.
    The bill set out these facts, and prayed for a conveyance and transfer of the property by the defendants to her in fee and absolutely.
    The defendants filed an answer admitting the facts stated in the bill, and submitting themselves to the order of the court.
    On the 18th of September 1869, the cause was heard on bill and answer by Mr. Justice Williams, who made a decree dismissing the bill pro forma.

    The plaintiff appealed to the court in banc, and there assigned this decree for error.

      P. K. Price (with whom were P. H. Weil and J. Page), for appellants,
    referred to Catherwood’s Appeal, 2 P. F. Smith 154, and Keyser’s Appeal, 7 Id. 236 decisions in the same estate. This trust is executed: Lewin on Trusts 246; Williams on Real Prop. 135; Dubs v. Dubs, 7 Casey 155; Physick’s Appeal, 14 Wright 128; Kepple’s Appeal, 3 P. F. Smith 212. If not executed, it ceased on discoverture: Nice’s Appeal, 14 Wright 143 ; Steacy v. Rice, 3 Casey 75; Ralston v. Wain, 8 Wright 279; Koenig’s Appeal, 7 P. F. Smith 352; 2 Crabb on Real Prop., § 963; Smith v. Starr, 3 Whart. 62; Hamersley v. Smith, 4 Id. 126; Quigley v. Com., 4 Harris 353.

      J. P. Growen, for appellees.
    — The trustees had active duties to perform, and the trust was therefore unexecuted: Barnett’s Appeal, 10 Wright 392; Shankland’s Appeal, 11 Id. 113; Bacon’s Appeal, 7 P. F. Smith 504; Keyser’s Appeal, supra.

   The opinion of the court was delivered,

by Agnew, J.

— This is a bill in equity, praying for a conveyance of the estate in the defendants as trustees on the alleged expiration of the trust at the death of the plaintiff’s husband. A decree dismissing the bill pro forma was made at Nisi Prius, in order that the ease might reach the court in banc. But one question is involved, and that is, whether the trust created for Mrs. Megargee during coverture, by her father John Naglee, in his last will, has fallen by the death of her husband Samuel Megargee. It seems to us very clear that the active trust vested in the joint board of trustees of the sons and daughters for the improvement of the estate, and its partition, ceased after the term fixed for the performance of these duties had expired and the partition made. Thenceforth there was nothing to keep alive the trust for the daughters, except so far as the will created a special trust for them as married women to preserve their estates and protect them from their husbands and from the creditors of their husbands. The devise and bequest in the eighth clause in trust for the daughters are clearly of a fee in the realty, and an absolute estate in the personalty. A continuance of the special trust, after the death of the husband of any daughter, would be clearly at variance with the absolute estate thus vested in her. Being no longer necessary for the protection of the daughter, the trust falls, and she is entitled to receive the estate into her own hands as its owner, with all the incidents of ownership. In Bacon's Appeal the trust was for the daughter for life, and being an active one, the estate in her was merely equitable, so that it did not unite with the legal remainder to create a fee in her. But here the will gave Mrs. Megargee a fee and an absolute estate in the first instance. That in such a case the statute executes the use upon discoverture is sustained by abundant authority : Smith v. Starn, 3 Whart. 62; Hamersley v. Smith, 4 Id. 126; Harrison v. Brolaskey, 8 Harris 299; Steacy v. Rice, 3 Casey 75; Ralston v. Wain, 8 Wright 279; Nice’s Appeal, 14 Id. 143; Freyvogle v. Hughes, 6 P. F. Smith 228; Koenig’s Appeal, 7 Id. 352; Dodson v. Ball, 10 Id. 492.

Decree reversed, bill restored, and a decree ordered to be drawn up for the plaintiff for the conveyance of the legal estate to her with costs, subject to the settlement of the account of the defendants as trustees for all proper charges and deductions to which they may be legally and equitably entitled, for and by reason of the trust estate in their hands.


author: 'by Agnew, J.

text:
    Springer versus Arundel et al.

    1. 'Boss gave all her estate to a trustee for the sole and separate use of an unmarried adopted daughter, he to collect the income and pay the whole to the separate use of the daughter for life without control of any husband she might take and without it being liable for his debts, her receipt alone whether covert or sole to be a discharge, and to permit her to let, &e., and take the rents, &c., with power of appointment, for want of which, to convoy to her children at her death, and the lawful issue of deceased children. Held, that this was an active trust for the daughter for life with remainder to her children, who in default of appointment would take as purchasers.
    2. In such case where an express estate for life is given and the remainder is not to heirs or issue generally, a power of appointment will not enlarge the estate into a fee.
    3. The will was dated a few days before Ross’s death; the daughter was married a few days after: Held, that the trust was in contemplation of marriage.
    February 10th 1870.
    Before Read, Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.

      Error to the District Court of Philadelphia: No. 61, to July Term 1869.
    This was an ejectment, commenced April 29th 1868, by John 33. Springer, trustee, &c., of Mary M. Clarke, late Ross, against Robert J. Arundel and the terre-tenants.
    The premises were a house and lot on Fourth street, Philadelphia. On the 8th of September 1841, they belonged to Margaret J. Ross, widow, who on that day made her will, which contained the following clause:—
    “ I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, &c., unto Harris C. Fahnestock, and to his heirs, executors, administrators and assigns. In trust, nevertheless, for the sole and separate use and-benefit of my beloved adopted daughter Mary M. Rogers, the said Harris C. Fahnestock, his heirs or assigns to collect and receive the rents, issues and profits of my real estate, and the interest, income and profits of my personal and mixed estate, and immediately after my decease, after paying the taxes and all other charges against the said estate to pay the whole of the said income or product of my said estate to the said Mary M. Rogers for her sole and separate use, during the term of her natural life, without the control or interference of any husband which she may hereafter take, and without being liable for his debts and engagements, and her receipt alone, whether she be covert or sole, to be a sufficient discharge therefor; or at her option to permit and suffer her the said Mary M. Rogers to let, demise, manage, direct and take and receive the rents, issues, incomes and profits aforesaid herself, for her own sole and separate use during the term aforesaid, without any liability to the debts and engagements of any husband which she may take; and from and immediately after her decease then to grant, convey, assign, transfer and pay over all the said estate, real, personal and mixed aforesaid to such person or persons as she the said Mary M. Rogers shall, notwithstanding any coverture, by her last will and testament, or any instrument in the nature of a last will and testament, under her hand and seal executed in the presence of two or more credible witnesses, direct and appoint to take and receive the same. And for want of such direction and appointment, then to grant, convey, assign, transfer and pay over all the aforesaid estate to such child or children as the said Mary M. Rogers may have at her death, if more than one as tenants in common, and the lawful issue of such deceased child or children who may then be deceased leaving issue, such issue taking such part and share only as his, her or their deceased parent or parents would have had and taken if living.”
    She appointed Mary M. Rogers executor of her will, and died October 1st 1841. Mary M. Rogers was married to Samuel Clarke October 3d 184*1; the will was proved October 4th. Fahnestock having died, Springer was subsequently appointed trustee in his place.
    An agreement was made October 18th 1841, between Samuel Clarke and Mary M. his wife, of the one part, Charles J. Jack, of the second part, and Robert J. Arundel, of the third part, which recited: “ Whereas, Margaret J. Ross, by an instrument purporting to be her last will and testament, dated the 8th day of September last past, devised and bequeathed the greater part of her property and estate in trust for the sole and separate use of- her the said Mary M. Clarke (late Rogers) with powers to dispose of the same by writing in the nature of a last will and testament. * * * And whereas, the said Charles J. Jack and Robert J. Arundel are the next of kin and heirs at law of the said Margaret J. Ross, and have filed a caveat and opposed the probate of said instrument, but all the said parties being at the same time desirous of apaicably settling their difference and preserving the harmony and good understanding of their families with each other, have agreed to compromise and settle their respective pretensions and claims, as hereinafter set forth and stipulated.” ‘
    Arundel and Jack then agree that the will may be proved, and they release all their right and claim to the estate of Mrs. Ross.
    The agreement then stipulates :—
    “ And they, the said Samuel Clarke and Mary M. Clarke, each, according to all the power and ability in him or her vested to act in the premises, and pledging themselves to a moral as well as legal responsibility for all they have undertaken and agreed to perform, have covenanted, &c., with the said Charles J. Jack and Robert J. Arundel respectively, &c., that there shall be paid by the said Mary M. ,Clarke, out of the rents, &c., of the property and estate bequeathed and devised for her separate use, for each and every year during the life of her the said Mary M. Clarke, unto the said Charles J. Jack $300 per annum; unto the said Robert J. Arundel $300 per annum; and at the decease of the said Mary M. Clarke, the principal of said annuity, to wit, $5000, shall be bequeathed or appointed- unto the said Charles J. Jack, or his legal representatives, and $5000 unto the said Robert J. Arundel, or his legal representatives, by virtue of the power vested in her, the said Mary M. Clarke, in and by the said will.” * * *
    On the 3d of January 1846, Jack assigned all his interest under the agreement to John Bouvier.
    On the 8th of June 1848, an agreement was made between Arundel and Bouvier of the first part, and Mr. and Mrs. Clarke of the second, by which it was recited that it had been agreed “ that the parties of the first part should take and are hereby authorized to take possession of a certain house and store situate on the west side of Delaware Fourth street, between Market and Chestnut streets, city of Philadelphia, No. 22, and take and receive the rents, issues and income thereof, in lieu of interest to be paid to them by the said Samuel Clarke and wife during receipt of such rents, &c.” * * And Arundel and Bouvier agreed that “while they shall be permitted to receive the said rents, &c., they will not ask or demand from the latter any other interest on the moneys that are or shall be owing to them than such as may be met and discharged by the net revenue of said house and store,” &c. * * *
    And when Arundel and Bouvier should have been paid from the income of the house after paying interest, &c., the sums of $3000 and $2500 respectively, they shall acknowledge the same to be full satisfaction of their claim under the agreement of October 18th 1841, and shall release all their estate under that agreement.
    The house and lot mentioned in this agreement are the premises in dispute.
    Samuel Clarke died March 19th 1859.
    The court (Stroud, J.) instructed the jury to render a verdict for the plaintiffs, subject to the opinion of the court upon the point reserved, whether upon the whole evidence in the cause the verdict should not be for the defendants.
    On the 24th of April the court in banc, Hare, P. J., delivering the opinion, entered judgment for the defendants on the point reserved, non obstante veredicto.

    Stroud, J., dissented.
    The plaintiff took a writ of error. He assigned for error, entering judgment for the defendants on the point reserved.
    Cr. Junkin, for plaintiff in error.
    — A married woman’s deed is void: Caldwell v. Walters, 6 Harris 79; Dorrance v. Scott, 3 Wharton 313; Glyde v. Keister, 8 Casey 85; Ramborger v. Ingraham, 2 Wright 146; Steinman v. Ewing, 7 Id. 53; Bear v. Bear, 9 Casey 525; Heugh v. Jones, 8 Id. 433; Schlosser’s Appeal, 8 P. F. Smith 495. And this though the married woman receives and retains the consideration: Gliddon v. Strupler, 2 P. F. Smith 400; Rumfelt v. Clemens, 10 Wright 455; Colburn v. Kelley, 11 P. F. Smith 314. Where the truth is known to both parties there can be no estoppel: Hall v. Epley, 7 Casey 331; McAninch v. Laughlin, 1 Harris 371. A married woman can do nothing with her separate property unless the power is expressly given to her: Pullen v. Rianhard, 1 Wharton 514; Thomas v. Folwell, 2 Id. 11; Dorrance v. Scott, 3 Id. 309; Wallace v. Coulston, 9 Watts 137; Cochran v. O’Hern, 4 W. & S. 95 ; Lyne v. Crouse, 1 Barr 111; Heath v. Knapp, 4 Id. 228; Wright v.
      Brown, 8 Wright 224; Jones’s Appeal, 7 P. F. Smith 372; Lancaster v. Dolan, 1 Rawle 231; Rogers v. Smith, 4 Barr 93. The law will not strike down such trusts : Barnett’s Appeal, 10 Wright 392; Bacon’s Appeal, 8 P. F. Smith 504. Where an instrument creates a separate use it will be maintained if there is a subsequent marx-iage: Snyder v. Snyder, 10 Barr 423; Jamison v. Brady, 6 S. & R. 466. A testator may so tie up a provision for a child that it shall not be liable for the child’s debts by way of attachment or assignment, or anticipation : Girard Co. v. Chambers, 10 Wright 485; Vaux v. Park, 7 W. & S. 19; Jones’s Appeal, 7 P. F. Smith 372.
    May 5th 1870,

      J. B. Townsend, for defendants in error.
    — Coverture at the time of the transmission of the estate or a settlement in contemplation of a particular marriage are required to impose upon the property granted a restriction against alienation. A limitation to the separate use of a woman who is sole, or who being covert becomes discovert, does not impose any restriction on her power to alien, dispose of or encumber her property, and a second marriage will not revive the trust which existed during the first coverture: Smith v. Starr, 3 Wharton 62; Hamersly v. Smith, 4 Id. 126; Quigley v. Commonwealth, 4 Harris 356; Harrison v. Brolasky, 8 Id. 302; McBride v. Smyth, 4 P. F. Smith 250; Freyvogle v. Hughes, 6 Id. 228. Land passes to a devisee without probate of the will, which may on due proof,'be given in evidence in ejectment without having been filed with the register: Smith v. Bonsall, 5 Rawle 86; Asay v. Hoover, 5 Barr 21; Rowland v. Evans, 6 Id. 435; Girard v. City, 4 Rawle 323; Hays v. Harden, 6 Barr 409; Barker v. McFerran, 2 Casey 211; Flannery’s Will, 12 Harris 502. Mrs. Clarke’s appointees for a valuable consideration are delegated in her stead to take the rents and profits; this will always be maintained in equity unless there be express prohibition of alienation or anticipation : Dowell v. Dew, 12 Law Journal, N. S. Chan. 158; 2 Roper on Husband and Wife 184; 2 Story’s Eq. Jur. 567; Major v. Lansley, 2 R. & M. 355; Broughton v. Langley, Equity Cases, Abr. 383; Phillips v. Smith, 12 East 455; Gregory v. Henderson, 4 Taunt. 772.
   The opinion of the court was delivered,

'by Agnew, J.

— Mary M. Rogers (now Max-y M. Clarke) was a feme sole at the time of the death of Mx-s. Margaret J. Ross. By her will Mrs. Ross devised and bequeathed real and personal estate to a trustee to collect and receive the rents, issues and profits of her real estate, and the interest, income and profits of her personal and mixed estate, and after payment of taxes and all other charges against the estate, to pay the whole of the income or product of the said estate to Mary M. Rogers, for her sole and separate use during the term of her natural life, without the control or interference of any husband which she might thereafter take, and without being liable for his debts and engagements, and her receipt alone, whether she he covert or sole, to he a sufficient discharge therefor. This was followed by a power of appointment by Mary M. Rogers, by will, and on failure to appoint by a trust, to convey and transfer the estate to her child or children. This will was executed by Mrs. Ross twenty-three days before her death, and Mary M. Rogers married Samuel Clarke two days after Mrs. Ross’s death. Under these circumstances the District Court held that no valid trust was created for Mary M. Rogers by the will of Mrs. Ross, and consequently she was competent to execute the deed referred to in the evidence. We think the District Court erred in this opinion. The will created an active and operative trust for Mrs. Clarke for life only, with remainder to her children, who in default of an appointment by Mrs. Clarke by will, would take as purchasers, and not by descent. In such case, where an express estate for life is given, and the remainder is not to heirs or issue generally, a power of appointment will not enlarge the estate to a fee: Dodson v. Ball, 10 P. F. Smith, and authorities there cited. Under the circumstances of this case the trust created for Mrs. Clarke (then Miss Rogers) was plainly in contemplation of marriage. As remarked in Wells et al. v. McCall, antea 207, the creation of the trust constitutes the evidence of the fact of the marriage being in the contemplation of the devisor, and this being followed in so short a time by the consummation of the marriage, concludes the proof. Having considered this question fully in the case just referred to, further observation is unnecessary.

Judgment reversed, and judgment for the plaintiff on the point reserved in the court below against the defendants with costs.


author: by Thompson, C. J.

text:
    Barrett versus Johnson.
    1. Barrett employed Johnson to sell his land for the sum it had cost him, which he stated was $28,000 ; -the commissions to be 2 per cent, on the cost and 30 per cent, on the amount beyond. Johnson sold the land for $36,000. In a suit for commissions according to the above terms on the whole sum, it was competent for Barrett to show that he was bound to pay to another, one-fourth of the peach crop on the land and that it was understood between him and Johnson that this one-fourth was an item in the cost of the farm.
    _ 2. The one-fourth of the peach crop was as if the land had been sold subject to liens to that amount.
    February 10th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.

      Error to the District Court of Philadelphia: No. 99, of July Term 1869.
    Albert T. Johnson brought an action of assumpsit on the 2d of November 1867, against Benjamin E. Barrett, to recover commissions for the sale of real estate.
    On the trial, before Greenbank, J., the ground of the plaintiffs claim was contained in a letter from the defendant to him, dated October 9th 1865, asking the plaintiff to effect a sale of 500 acres of land in the state of Delaware. In the letter he says: * * * “ I have made a calculation of the whole cost to me. The whole thing will stand me in $28,682.93. * * If I get this, I shall consider myself made whole — and that is all I now expect or ask. * * * If you can sell it for the above-named sum, I will allow you your commissions of two per cent.; and you shall have thirty per cent, of whatever you get above this. * * * I figure the thing thus:
    Buildings (at lowest cash estimate) . . $6,000
    10,000 peach trees do. 75c. . . . 7,500
    Grape vines, raspberries, blackberries . . 250
    500 acres of land, do.
    15,000
    Total,......$28,750”
    The property was sold by the plaintiff to Eli Felt for $36,000. His claim was for commissions at 2 per cent, on $28,682.93, amounting to $573.65, and commissions at 30 per cent, on $7317.07, the remainder of the $36,000, amounting to $2195.12, from which were to be deducted $720 paid by the defendant. The plaintiff having closed, the defendant offered to prove by Eli Felt, “ that he, the defendant, had to pay one-fourth of the peach crop on the said farm to Mr. Taylor; also to prove the value of the one-fourth of the peach crop; and also that it was distinctly understood between the plaintiff and the defendant that one-fourth of the peach crop was an item in the cost of said farm. And also to prove by this witness the true amount realized by the defendant, from the sale of this property; and also the sum which made him whole, so as to furnish the basis for an estimate of the thirty per cent, commission claimed by the plaintiff, if the defendant is at all liable for such a rate of commission on the sale of his property.” After objection by the plaintiff the evidence was rejected, and a bill of exceptions was sealed.
    The verdict was for the plaintiff for $2435.83.
    On a writ of error by the defendant, he assigned for error the rejection of his offer.

      H. E. Keene, for plaintiff in error,
    cited Miles v. Stevens, 3 Barr 21.

      October 20th 1870,
    <7. I). Freeman and W. S'. Price, for defendant in error.
   The opinion of the court was delivered,

by Thompson, C. J.

— There is only one error assigned on the record, and we think it is sustained. If, as proposed to be proved, Johnson, the plaintiff, knew from Barrett, anterior to the sale of the farm in question, that the one-fourth of the peach crops for one or more years was to go to others, and was not the property of Barrett to sell, and to be deducted from the gross amount of sales proposed to be made by him, and that they did so go, and the amount of the purchase-money was in fact reduced by that amount, he was certainly not entitled to thirty per cent, commissions on that sum. Barrett never received it, and the offer was to prove that he knew he was not to receive it. With that knowledge he was no more entitled to commissions on the amount deducted than if he had sold subject to liens. We think the testimony should have been received and have gone to the jury as a means of determining the amount the plaintiff was entitled to, if anything, on the basis of his claim. On the hypothesis that the deduction of the one-fourth of the peaches was necessary to enter into the calculation of what would be requisite to make the defendant whole in the sale of his property, we predicate nothing, for we see no evidence that the plaintiff was only to receive thirty per cent, of the amount he should sell the property for over and above what would make the defendant whole. That is the aspect of the case now, but for the preceding reason we think the case should be reversed.

Judgment reversed, and venire de novo awarded.


text:
    Meier versus The Pennsylvania Railroad Company.
    1. Carriers of passengers are liable only for negligence, and are not insurers of the safety of their passengers as they are as carriers of goods and baggage of passengers.
    2. The carrier is bound to guard the passenger from every danger which extreme vigilance can prevent.
    3. Although carriers of passengers do not warrant absolute safety, they are bound to exercise the utmost degree of diligence and care.
    4. The slightest neglect resulting in hurt or loss, against which human foresight and prudence may guard, renders carriers of passengers liable.
    5. Negligence is the ground of liability on the part of a carrier of passengers.
    6. The requirement of extreme care does not extend beyond the use of known machinery and the’modes of using it.
    7. Railroads must keep pace with science, art and modern improvement in their application to the carriage of passengers.
    8. Primft facie where a passenger on a train is injured without his own fault, there is negligence in the carrier, casting the burden of disproof on the carrier.
    9. The carrier may relieve himself by showing that the injury arose from an accident which the utmost skill, foresight and diligence could not prevent.
    10. The rule as to carriers of passengers requires that the highest degree of practicable care and diligence should be exercised that is consistent with the mode of transportation adopted, but not every possible preventive which the highest scientific skill might suggest. Per Thayer, J.
    11. New Jersey Railroad v. Kennard, 9 Harris 203, Laing v. Colder, 8 Barr 479, remarked on.
    February 11th. 1870.
    Before Read, Agnew, Sharswood and Williams, JJ. Thompson, O. J., at Nisi Prius.
    Error to the District Court of Philadelphia: Of July Term 1869, No. 111.
    This was an action on the case for negligence, brought February 6th 1868, by Theodore Gr. Meier against The Pennsylvania Railroad Company.
    The plaintiff’s case was the following : — ■
    On the evening of February 7th 1867 Theodore Gr. Meier, the plaintiff in error, took passage on the train of defendants’ cars at Jersey City, bound for St. Louis. He occupied the sleeping car, which was the rear car of the train. On the following morning, about eight o’clock, at a point on defendants’ road between Tyrone and Altoona — the train running at a speed of twenty-six miles to the hour on an ascending grade — the axle of the forward truck broke in two places. The end of the car then dropped down and slid along the rails. The plaintiff was thrown forward so that his knee caught in the side-rest of the seat, and the ligaments of the right knee-joint were torn, and the bones of his leg were severely bruised.
    The defendants proved that new wheels and new axles had been put under the car in October 1866; the axles were made at the Sligo Works of Lyon, Shorb & Co., and they were of good quality ; that the train had been inspected seventy miles east of the place of the accident, and again twenty-two miles east of it; the truck and the road were in good order; the train running at a proper speed. They gave a large amount of evidence to show that minute and constant care had been exercised to keep the road, apparatus, cars, running gear, &c., in perfect order, and that they employed such appliances, &c., as are approved by the most experienced railroad operators and mechanics; and gave evidence generally for the purpose of showing that they used the utmost care that human knowledge, skill and foresight could provide, and that the accident was due to some circumstance against which these could not guard.
    Under a lucid and exhaustive charge by Judge Thayer, which the Reporter regrets his space will not allow him to give in full, the jury found a verdict for the defendants.

      The plaintiff took out a writ of error, and assigned for error, that the judge erred in charging the jury:—
    “ 1. That common carriers of passengers are liable only for negligence; they are not insurers of the safety of their passengers like common carriers of goods. There is a well-established distinction in that respect between the responsibility of the carriers of goods and the responsibility of the carriers of passengers; which distinction is founded in the consideration that in the case of goods committed to a carrier the owner is deprived of all control and custody over them; and also upon the consideration that if the contrary rule prevailed it would enable the carrier of goods to collude with other people for the purpose of depriving the consignor of his rights and his property. But common carriers of passengers are not liable for injuries happening to passengers from unforeseen accidents, where there has been no negligence. They do not undertake absolutely to be responsible for unavoidable accidents; for accidents which, in a word, are not the result of their own negligence.

      “2. That the rule in regard to carriers of passengers is this: The utmost care and vigilance is required on the part of the carrier. This rule does not require the utmost degree of care which the human mind is capable of imagining; but it does require that the highest degree of practicable care and diligence should be adopted that is consistent with the mode of transportation adopted. Railway passenger carriers are bound to use all reasonable precautions against injury of passengers; and these precautions are to be measured by those in known use in the same business, which have been proved by experience to be efficacious. The company are bound to use the best precautions in known practical use. That is the rule; the best precautions in known practical use to secure the safety of the passengers; but not every possible preventive which the highest scientific skill might suggest.”
    3. In affirming defendants’ 3d point as follows:—
    “ If the track of defendants’ road and the car which ran upon it, to which this accident occurred, were built and constructed of the best known materials, and in the best known manner, combining all those appliances which men skilled in the art of road-building and car-constructing employ; and if the car and its running gear were duly and carefully inspected from time to time, and as often and in such manner as those skilled in the art have from scientific knowledge and by experience found requisite, so that the jury are satisfied by the evidence that the accident was due to some cause against which precaution and foresight would be unavailable, then there can be no recovery in this case. ”

      I. Hazlehurst, for plaintiff in error.
    — The relation between the plaintiff and defendants was a contract by which they engaged to provide a safe railroad, ro.adworthy cars, and competent management : Sullivan v. Railroad, 6 Casey 239. The provisions for the safety of a passenger should be not merely the best that can be procured, but absolutely perfect: Derwort v. Loomer, 21 Conn. R. 246; Railroad Co. v. Kennard, 9 Harris 204. A railroad company is not relieved by proof of ordinary care: Laing v. Colder, 8 Barr 479; Penna. Railroad v. Aspell, 11 Harris 147; Readhead v. Railroad, 2 Queen’s B. 412. There is a warranty that the carriage is in every respect roadworthy and fit to perform the journey: White v. Boulton, 1 Peake’s Cas. 91; Israel v. Clarke, 4 Esp. R. 257; Bremner v. Williams, 1 Car. & Payne 414; Crofts v. Waterhouse, 3 Bing. R. 321; Christie v. Griggs, 2 Camp. R. 79; Sharp v. Grey, 9 Bing. 331; Alden v. Railroad, 26 N. Y. R. 102. Undertaking a service is a consideration to create a duty in the performance of it: Coggs v. Bernard, 2 Ld. Raym. 909; Jones v. Bright, 5 Bing. 529 ; Gray v. Cox, 4 B. & C. 108; Gardiner v. Gray, 4 Camp. 144; Okell v. Smith, 1 Stark. 107 (86); Bluett v. Osborne, Id. 384 (308); Brown v. Eddington, 2 M. & G. 279; Abbott on Shipping 218; Lyon v. Mells, 5 East 428; Gibson v. Small, 4 H. of L. Cas. 404; Ingalls v. Bills, 9 Metc. N. Y. 1; Sherman and Redfield on Negl. 298.
    delivered, July 7th 1870,

      T. Ouyler, for defendants in error.
    — Extraordinary care, and the highest degree of prudence, foresight and precaution, practically applied, constitute the duty of the carrier: 2 Redfield on Railways 170-190. Carriers of passengers are not liable for injuries happening from unforeseen accidents or misfortune where there has been no negligence or default in the driver: Aston v. Heaven, 2 Esp. 533 ; Hall v. Steamboat Co., 13 Conn. 326; Boyce v. Anderson, 2 Peters 150; Derwort v. Loomer, 21 Conn. 245; Hegeman v. The Railway, 16 Barb. 353; Caldwell v. Murphy, 1 Duer 241; Ingalls v. Bills, 9 Metc. 1; Galena and Chicago Railway v. Fay, 16 Ill. 558; Wilkie v. Bolster, 3 E. D. Smith 327; Chicago & Burl. Railroad v. Hazzard, 26 Ill. 373; Tuller v. Talbot, 23 Id. 357; Bowen v. N. Y. Cent. Railroad, 18 N. Y. 408; Caldwell v. Murphy, 1 Duer 241; Curtis v. The Rochester and Syracuse Railroad, 18 N. Y. 534; Hollister v. Nowlen, 19 Wend. 236; Camden & Amboy Railroad v. Burke, 13 Id. 620; Hegeman v. Western Railroad, 16 Barb. 353; s. c., 3 Kernan 9 ; Wilkie v. Butler, 4 E. D. Smith 327; Holbrook v. The Railroad, 2 Kernan 236.
   The opinion of the court was

by Agnew, J.

— It is agreed on all hands, says Judge Redfield, in his work on Railways, ed. 1867, p. 174, that carriers of passengers are liable only for negligence either proximate or remote, and that they are- not insurers of the safety of their passengers, as they are as carriers of goods and baggage of passengers. The numerous cases cited from which this result is drawn, justify this statement: Alden v. N. Y. Central Railroad Co., 26 N. Y. 102, holding that a carrier is bound absolutely to provide a safe vehicle, irrespective of any question of negligence, is not in accord with the American cases generally, or the modern English decisions. It is reviewed in Readhead v. Midland Railroad Co., 2 Law Rep. C. B. 412, and therein said not to be founded in good reason. See the cases collected in Shearman & Redfield on Negligence (1869) 299, §. 267.

The language of Judge Gibson, taken from N. Jersey Railroad Co. v. Kennard, 9 Harris 204, that a carrier of' either goods or passengers, is bound to provide a carriage or vehicle perfect in all its parts, in default of which he becomes responsible for any loss or injury that may be suffered, has no relation to the question now before us. The case he was considering was that of a car made without guards at the windows to prevent the arms of passengers being thrust out, to their injury, which he considered a defect in the construction of the car, making the carrier liable for negligence. The car was not perfect in its parts as he thought. The car was imperfect in construction and therefore not adapted to the end to be attained, to wit, security. It may not be amiss to say that this opinion of the Chief Justice as to window guards, was not sustained by the court in banc, and has since been overruled in Pittsburg & Connellsville Railroad Co. v. McCleary, 6 P. F. Smith 294. The doctrine we are now asked to sustain, is that though the car is perfect in all its parts, if imperfect from some latent and undiscoverable defect, which the utmost skill and care could neither perceive nor provide against, the railway company must still be held responsible for injury to passengers, on the ground of an absolute liability for every defect. The plaintiff in error in effect contends, that the defendants were warrantors against every accident, but even in the case referred to, Judge Gibson denied this rule. He said of the carrier, he is bound to guard him (the passenger) from every danger which extreme vigilance can prevent. This expresses the true measure of responsibility. He answered a point in these words, “ That the company is responsible only for defects discoverable by a careful man after a careful examination and exercise of sound judgment.” Thus: “ This is true, but were there such an examination and exercise of judgment ? The defective construction of the car must have been obvious to the dullest perception,” &c. The same rule was laid down in Laing v. Colder, 8 Barr 482. Judge Bell says, it is long since settled that the common-law responsibilities of carriers of goods for hire, do not as a whole extend to carriers of passengers. The latter are not insurers against all accidents. But though (he says) in legal contemplation they do not warrant the absolute safety of their passengers, they are bound to the exercise of the utmost degree of diligence and care. The slightest neglect against which human prudence and foresight may guard, and by which hurt or loss is occasioned, will render them liable in damages. The same doctrine will be found in substance in Railroad Co. v. Aspell, 11 Harris 149, and Sullivan v. The Philadelphia & Reading Railroad Co., 6 Casey 234, and in other cases. In all the Pennsylvania cases, it will be found that negligence is the ground of liability on the part of a carrier of passengers. Absolute liability requires absolute perfection in machinery in all respects, which is impossible.

The utmost which human knowledge, human skill and human foresight and care can provide, is all that in reason can be required. To ask more is to prohibit the running of railways, unless they possess a capital and surplus which will enable them to add a new element to their business, that of insurance. Nor can we carry the requirement beyond the use of known machinery and modes of using it. Railroads must keep pace with science and art and modern improvement, in their application to the carriage of passengers, but are not responsible for the unknown as well as the new. The rule laid down by the learned judge, in the language quoted in the second assignment of error, is a correct summary of the law. The rule of responsibility differs from the rule of evidence. Primfi facie, where a passenger, being carried on a train, is injured without fault of his own, there is a legal presumption of negligence, casting upon the carrier the onus of disproving it: Laing v. Colder, 8 Barr 482; Sullivan v. Philadelphia & Reading Railroad Co., 6 Casey 234; Shearman & Redfield on Negl. § 280; Redfield on Railways, § 1760, and notes. This is the rule when the injury is caused by a defect- in the road, cars, or machinery, or by a want of diligence or care in those employed, or by any other thing which the company can and ought to control as a part of its duty, to carry the passengers safely; but this rule of evidence is not conclusive. The carrier may rebut the presumption and relieve himself from responsibility by showing that the injury arose from an accident which the utmost skill, foresight and diligence could not prevent.

We think none of the errors assigned are sustained, and the judgment is therefore affirmed.


text:
    Winsor et al. versus Maddock et al.

    1. Points need not be separately noticed if they are substantially and clearly met and answered in the general charge.
    2. A. party cannot complain of a refusal, if the proper answer would have done him no good.
    3. The owners of a ship, though in a home port where they or their agents reside, are responsible for necessary supplies furnished on the order of the captain, unless it should appear that they were furnished exclusively on his credit.
    4. Supplies, during three years were furnished for a ship, on the order of the captain; no demand had been made on the owners for their payment until fifteen months after the last item. From these circumstances alone there could be no inference that exclusive credit had been given to the captain.
    February 11th 1870.
    Before Read, Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 115, to July Term 1869.
    This was an action of assumpsit by Edward J. Crippen and John B. Maddock, trading as William L. Maddock & Co., against Henry Winsor and William D. Winsor, owners of the steamship “ Saxon.”
    The ship was one of a line between Philadelphia and Boston, which carried passengers as well as freight. The claim was for groceries, such as would be suitable for passengers. It was alleged by the defendants that the goods were furnished on the individual credit of Captain Matthews, the master of the ship, and not on the credit either of the ship or her owners; and that the captain only, and not the ship or its owners, was only liable. The Saxon belongs to the Boston Steamship Line, of which the defendants are agents and part owners. The landing-place of the steamers is Pine street wharf, and the office of the line is on Delaware Avenue, at the corner of Pine street.
    The plaintiffs gave in evidence the account in their books, in which the heading was, “ Steamship Saxon and Owners.” Also a pass-book, endorsed on both covers, “ St. Ship Saxon and owners in account with William L. Maddock & Co.with a similar entry on the head of the first page. The book contained a running account of articles furnished from May 1863 to May 1866 ; also credits of cash and merchandise, showing the balance due May 16th 1866, to be $473.52. The book was brought from time to time to the plaintiffs’ store, by the steward of the ship, the items were entered in the pass-book, which was delivered to the ship with the goods; the go-ods were taken to the ship in the plaintiffs’ wagon, which had their names on it in large letters. The plaintiffs gave other evidence to maintain their case.
    The defendants called Captain Matthews, who testified: He told one of the plaintiffs when he made arrangements for dealing with them, that he got so much per month for victualling the ship, and he was to get the things where he could do best; the plaintiffs made out the pass-book themselves and gave it to the steward; the goods were furnished on witness’s account, and he wras indebted to the plaintiffs for the balance; he informed the plaintiffs when his arrangement with the defendants ceased, and that thereafter their bills must be sent to Henry Winsor & Co. Witness was owner of a sixteenth of the. ship in 1862, when the contract was opened; he transferred his interest in the same year.
    •The steward testified that he informed the plaintiffs that the captain was victualling the vessel.
    Henry Winsor, one of the defendants, testified, that their contract with the captain was to pay him $600 per month for victual-ling the ship and $5 on each passenger; the captain bought the supplies on his own credit where he chose, and all that was due to him had been paid. The plaintiffs never made any demand on the defendants for payment until August 1867 ; they had never seen the plaintiffs or their clerk, or known anything of the bill until that time.
    The witness further said: “ Our captains sometimes purchased some things for the vessel. We generally consulted the captain about the purchases for the vessel of things in which he was most competent as captain to advise, such as rigging, boats, &c. When he bought such things the bills were sent to the office. The bills were generally made out so, ‘ Steamship Saxon and Owners,’ to distinguish them from purchases made for the other vessels on the line. The general accounts of the line are kept at Boston. After January 1866, we found out that Captain Matthews was doing badly, not paying his bills; we required him to pay them monthly. They were paid at the office by the book-keeper, and charged to him. They continued to be so until he left us.”
    The plaintiffs, in rebuttal, gave evidence for the purpose of showing that they had sold the goods on the credit of the ship •and the owners, and had never given credit to Captain Matthews individually; and also to show that the captain’s and steward’s statements on this point were inaccurate.
    The defendants submitted these points:—
    1. The captain of a steamship engaged in a regular established coastwise transportation line between this port and Boston, has no authority presumable solely from his position as captain, to bind the owners of such steamer for supplies purchased by him for the passengers and crew of such steamer, in her home port, where her owners and regularly constituted and advertised agents are resident.
    2. If the plaintiffs had knowledge that the defendants were the agents of the steamship Saxon in Philadelphia, her home port, and managed the affairs of such vessel, then the presumption of the captain’s authority as agent of the owners is rebutted, and the plaintiffs are not entitled to recover without proof of express authority of the captain to pledge the credit of the owners for the supplies in question in this suit.
    3. Proof that the defendants had been well known to the public in this city for a long period as the agents of the Boston Steamship Line, which line the steamer Saxon performed regular trips since the year 1861, and were regularly advertised in the newspapers as such agents, is evidence of the knowledge of such fact by the plaintiffs.
    4. If the jury believe that after the plaintiffs furnished the supplies sued for upon the order of the captain, the plaintiffs permitted a long time to elapse without demanding payment of the defendants, or notifying them of the delinquency of the captain in failing to pay, and thus allowed the defendants to settle with the captain, as if the bills had been duly paid by the captain, such delay upon the part of the plaintiffs is evidence that they gave exclusive credit to the captain, and will operate to discharge the defendants.
    5. If the jury believe that the plaintiffs had knowledge of the agreement between the captain and owners concerning the victualling of the steamer, that the captain should purchase such supplies upon his own account and credit in the best market, receiving therefor a certain stipulated sum, then the plaintiffs could not charge the said supplies to the defendants, and cannot recover in this action.
    6. If the jury believe, from the whole of the evidence in the cause, that these supplies were furnished upon the credit of the captain, the defendants are not liable.
    The court, Stroud, J., did not answer the points specifically, but charged:—
    * * * “ It is in evidence that besides being captain of the vessel, Matthews was also a part owner. The articles furnished are not what are called sea stores, for a particular voyage, but consist of numerous small articles chiefly furnished for victualling, even to a few pounds, and I believe to a single pound.
    [“ Supposing that the captain was also a joint owner with the defendants, who are sued as owners, and that no special information had been given to the plaintiffs as to any particular arrangement between the captain and the defendants, as to whom the obligation of payment existed, I think the law would make the defendants, as owners, liable jointly with the captain for the plaintiffs’ claim.]
    “But if the plaintiffs had been informed at the commencement of the dealing for supplies, that there was an arrangement between the captain and the defendants, by which the captain was to purchase supplies on his own responsibility only, the defendants would not be liable.
    “It is important, therefore, that the jury should look carefully into the evidence on this topic. Captain Matthews says he made the communication as to his individual responsibility, and did it at the outset of the dealing for supplies.” * *
    The verdict was for the plaintiffs for $556.93.
    The defendants took a writ of error, and assigned for error in their first six specifications the neglect of the court to answer their points, and the part of the charge enclosed in brackets.

      J. B. Thayer, for plaintiffs in error.
    — In a home port, where his owners are resident, a master has no implied authority to pledge the credit of his owners, even for supplies furnished to the vessel: Abbott on Shipping 132 ; Maud & Pollock on Merchant Shipping 102 ; McLaughlin on Merchant Shipping 128, 131; Arthur v. Barton, 6 Meeson & Welsby 138. The master cannot bind his owners for supplies when it is known to the creditor that some other person has authority to manage the business of the vessel: The Barque Joseph Conrad, Olcott’s Rep. 125; Phillips v. Ledley, 1 Wash. C. C. R. 226. This is not altered because the captain was at the inception of the contracta joint owner, i'f he was not the agent of the line for such purpose: Maud & Pollock on Merchant Shipping 56, 57, 70; Holt on Shipping 33; Brodie v. Howard, 17 C. B. 109; Heppard v. Brig General Cadwalader, 6 Penna. Law Jour. 474. If the creditor voluntarily gives an enlarged credit to the agent of the debtor, or adopts a particular mode of payment by which the principal is placed in a worse situation than he otherwise would have been, the original debtor is discharged : Paley on Agency 251-253; Story on Agency 515 ; Wyatt v. The Marquis of Hertford, 3 East 147; Smith v. Ferrand, 7 B. & C. 19; Reed v. White, 5 Espinasse 122; Stewart v. Hall, 2 Dow R. 29; McLaughlin on Merchant Shipping 105; Abbot on Shipping 106 (and note); Muldon v. Whitlock, 1 Cowen 290 ; Cheever v. Smith, 15 Johns. R. 277 ; Chapman v. Durant, 10 Mass. 47; Pentz v. Stanton, 10 Wend. 271. As to the court neglecting to answer the points: Garrett v. Gonter, 6 Wright 143; Caldwell v. Holler, 4 Id. 160 ; Walker v. Humbert, 5 P. F. Smith 407; Torrance v. Torrance, 3 Id. 505; Mullen v. Wilson, 8 Wright 413; McKnight v. Radcliff, Id. 166; Penna. Railroad Co. v. Zebe, 9 Casey 318; Wheeler v. Winn, 3 P. F. Smith 122.

      S. Dickson, for defendants in error.
    — As the master is the confidential agent of the owners, he has an implied authority to bind them, without their knowledge, by contracts relative to the usual employment of a general ship: Story on Agency, § 119; Phillips v. Ledley, 1 W. C. C. 226; 3 Kent Com. 161; Phillips v. Tapper, 2 Barr 323; Blackstock v. Leidy, 7 Harris 335; Lincoln v. Wright, 11 Id. 76; Stedman v. Feidler, 20 N. Y. 437; Glading v. George, 3 Grant 290; 3 Kent 153-155; Patterson v. Chalmers, 7 B. Mon. 595; Sawyer v. Freeman, 35 Maine 542; King v. Lowry, 20 Barb. 532; Story on Agency, § 40.
    February 17th 1870,
   The opinion of the court was delivered,

by Sharswood, J.

— It has been often decided in this court that it is not necessary that points should be separately noticed, if they are substantially and clearly met and answered in the general charge, and that a party has no right to complain of a refusal if the proper answer would have done him no good. We had occasion to reconsider and reaffirm these principles in Patterson v. Kountz, 13 P. F. Smith 246, to the opinion in which we refer for a more full discussion and citation of authorities.

It must now be considered as settled in this state by the case of Glading v. George, 3 Grant’s Cases 290, that the owners of a ship, though in a home port where they or their agents reside, are responsible for necessary supplies furnished on the order of the captain, unless it should appear that they were so furnished exclusively on his credit. There was no error then in the refusal or neglect of the learned judge below to answer the points presented by the defendants which form the subjects of the first three assignments of error. The only proper answer would have been a negative one to each of them, and that would have been of no advantage to the plaintiffs in error. As to the fourth error assigned, which appears to be the principal ground of complaint, the want of any answer either specifically or in the charge to the defendants’ fourth point, the same remark is applicable. For certainly the neglect of the plaintiffs below to demand payment of the defendants, unless the fact was that they knew of an arrangement under which the captain was paid a certain sum to procure supplies — a fact not hypothetically stated in the point — would be no evidence from which the jury could have legitimately inferred that exclusive credit was given to him. The fifth and sixth points were distinctly answered in the charge w7hen the jury were instructed that “if the plaintiffs had been informed at the commencement of the dealing for supplies, that there was an arrangement between the captain and the defendants by which the captain was to purchase supplies on his own responsibility only, the defendants would not be liable.” That portion of the charge complained of in the seventh assignment of error is but a reiteration in substance of the same instruction. Indeed when we advert to the evidence of Henry Winsor, one of the defendants, the case was submitted to the jury as favorably for them as they could ask or expect: for he testified that “ when he (the captain) bought such things the bills were sent to the office. The bills were generally made out so, “Steamship Saxon and Owners,” to distinguish them from purchases made for the other vessels on the line.” With full knowledge then that the plaintiffs were charging the supplies furnished by them in this manner, without any objection on their part, there was not only no evidence that they were sold to the captain exclusively on .his credit, but direct evidence brought home to the knowledge of the defendants at the time, that they were sold on the credit of the ship and her owners.

Judgment affirmed.