text:
    McClure versus Commonwealth.
    Under the 19th section of the Act of 31st of March 1860, in an indictment for forgery under the 169th section of the same act, it is not necessary to. prove an intent to defraud any particular person, but it is sufficient to prove a general intent to defraud.
    February 27th 1878.
    Before-Aonew, C. J., Sharswood, Merour, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Quarter Sessions of Philadelphia county-:■ Of January Term 1878, No. 28.
    Indictment of Robert McClure for fraudulently signing and uttering a diploma purporting to be issued by the Veterinary College of Philadelphia. The first count of the indictment charged that the defendant “ unlawfully and- fraudulently did make and sign, and was concerned in making and signing ” said diploma; and the second that he “ unlawfully and fraudulently did utter as true” said instrument. The indictment was found under the 169th sect, of the Act of March 31st 1860, Purd. Dig. 364, pi. 253. At the trial it. appeared that the “ Veterinary College ” had been incorporated by Act of Assembly, but had not been in existence for some years. It having come to the knowledge of the police authorities, however, that a number of diplomas, purporting to be of said college, were in the hands of improper parties, who were plying the vocation of veterinary surgeon, they were traced to the defendant, who had been one of the faculty of the college when in existence. A detective was directed by the police authorities to procure the proper evidence to convict McClure of the offence of making and uttering these diplomas, and a young man named Standin, who had been a student at the college, was employed to negotiate with defendant and procure a diploma. Following the directions given him, he finally, after some correspondence, concluded an arrangement whereby he was to receive a diploma for $120. The money to be paid therefor was marked, and when the diploma was delivered to Standin, a dectective arrested McClure. When McClure handed the diploma to Standin, he gave him three books, saying to Standin, “ These will help you in your practice. You are now a full-fledged doctor, and are as much entitled to write M. D. after your name as any doctor in the land.” There was no communication or understanding between McClure and Standin that the college was not in existence, or that the names signed to the diploma were not written by the parties whose names were thereto signed, or that the diploma was not a genuine one.
    The diploma, which was in evidence, read as follows:—

      Ars Veterinaria post Medicinara Secunda est. VETERINARY COLLEGE OE PHILADELPHIA.
    To all whom it may concern.
    Know ye, That we, the Officers and Professors of the Veterinary College oe Philadelphia,
    Do, by the authority vested in us by the Sovereign Power of the State of Pennsylvania, confer the degree of Doctor of Veterinary Medicine and Surgery, with all the attending immunities consequent thereto, upon Francis Standin, he having attended the curriculum of Studies, and complied with all the requirements imposed by the laws of our Institution. And we hereby certify his entire ability .to treat, in a scientific manner, all kinds of Diseases peculiar to Veterinary Practice.
    In testimony whereof, we have granted him this Diploma, on this first day of March, Anno Domini 1877, in the Hall of our College, at Philadelphia, affixing our signatures and the Seal of the College thereto.
    Alered S. Elwin, M. D., Pres’t. Robt. McClure, M. D. V. S. Geo.. W. Orless, V. S. Secretary. John H. Gould, V. S.
    [seal.]
    Both Dr. Elwyn and Mr. Gould, who had in no manner been connected with the college for many years, testified that the signatures purporting to be theirs were forgeries, and- another witness, Warren, a professor of penmanship, testified that they vrere written to the diploma by him-at the request of McClure, who had given him genuine signatures, upon which he was to practise so as to consummate the forgery.
    The points of defendant, with the answers of the court thereto, were as follows:—
    1. That in order to convict the defendant, the Commonwealth must prove, beyond a reasonable doubt, that there' was an intent to defraud; and there has been no evidence whatever of an intent to defraud.
    Ans. “ I will affirm the first; and as to the latter, it is the jury’s right to determine if there was an intent to defraud any one.”
    2. There is no evidence before the jury to convict the defendant under the bill of indictment before them.
    “ Refused.”
    In their general charge the court said: “If you find that the defendant intended to defraud any one when he procured the names to be signed to the diploma, he is guilty.”
    The defendant having been found guilty, took this writ, and assigned for error the admission in evidence of the diploma, the answers to his points, and the foregoing portion of the charge.

      George Haldorn, F. F. Brightly and William B. Mann, for plaintiff in error.
    — The 169th section of the Act of 31st of March 1860, is derived from the English statute, 14 Viet., c. 100, in the construction of which it was held that it is sufficient, in an indictment for forgery, to allege that the act was done with an intent to defraud, without alleging an intent to defraud any particular person ; yet it is still essential to a conviction, that such an intent should be proven: Regina v. Hodgson, Dearsley & Bell’s Crown Cases 3; Regina v. Mills, Id. 205.

      William W. Kerr, Assistant District Attorney, and Henry S. Hagert, District Attorney, for the Commonwealth.
    March 11th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

Foreign cases cannot override the express words of a Pennsylvania statute. The 19th sect, of the Criminal Procedure Act of March 31st 1860, 1 Brightly Dig. 379-80, pl. 20, is in these words:—

“It shall be sufficient, in any indictment for forging, uttering, offering, disposing’ of, or putting off, any instrument whatsoever, or for obtaining or attempting to obtain any property, by false pretenses, to allege that the defendant did the act with intent to defraud; without alleging the intent of the defendant to be to defraud any particular person; and on the trial of any of the offences in this section mentioned, it shall not be necessary to prove any intent on the part of the defendant to defraud any particular person, but it shall be sufficient to prove that the defendant did the act charged with an intent to defraud.”

Here is a positive statute which says you need not charge or prove an intent to defraud any particular person, but it shall be sufficient to charge and prove a general intent to defraud. Hid the legislature mean what it said in this act ? Who can doubt it ? What was the purpose ? Clearly to meet those frauds which affect the public at large. If a man forge bank notes, bonds to bearer, or other documents, intended to deceive the public, and make money out of the imposture, on what principle is this a less offence than if he intended to cheat a single individual ? He often does not circulate them himself, but sells them, at a percentage on their face, to accomplices, who circulate them to the injury of the public. Such a counterfeiter is far more dangerous to society than the- “shover,” as he is called, of the bills or counterfeit papers. Now that any foreign case should control a Pennsylvania statute, so plain in its intent and beneficial in its purposes, would itself be almost a fraud upon the public. We cannot recognise any such authority.

The case before us is a clear one. The defendant procured a certain diploma to be fraudulently and falsely signed with the names of certain persons as the ■ officers of a once existing institution authorized to grant degrees. He sold this diploma to a person named Standin for $120, after a correspondence on the subject, resulting in the price named. Standin, it is true, was engaged to trap the defendant and he was not deceived. But not so the defendant; he sold the forged diploma-in order to make money out of it, and thereby intending to defraud any and every one putting trust in it, as the evidence of the skill and knowledge of the person named in the diploma. He fell directly within the words and intent of the 19th sect, referred to; he had a fraudulent intent in his act; his purpose was corrupt and injurious; and this the law says shall be sufficient; and it shall not be neqessary to prove any intent to defraud any particular person. No one can doubt the fraud such a document is intended to perpetrate, or the intent to defraud, that the forger had, when he got it up and used it. It is just such a case as the law intends to reach, a general intent quite as injurious to the public as an intent to defraud a particular person.

Sentence affirmed, and the record is ordered to be remitted' to the Court of Quarter Sessions, for the purpose of proceeding to bring the defendant into court and committing him to custody, in order that the sentence of the court shall be fully carried into effect.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Henry Randall versus A. D. Weld, Jr., et al.

    1. The affidavit of defence law is not a violation of the constitution.
    2. Where the payees of drafts have paid them out of funds of the drawer in their hands, they hold them substantially as vouchers for money paid, and cannot treat them as bills of exchange so as to prevent an inquiry into the equities of the parties thereto.
    February 27th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1876, No. 282.
    Assumpsit by A. D. Weld, Jr., and others, against Henry Randall, upon two bills of exchange, drawn by Robert E. Randall, and accepted by the defendant.
    The plaintiffs filed copies of the bills, and defendant filed an affidavit of defence, which is sufficiently set forth, together with the other material facts, in the opinion of this court.

      P. S. Lawrance, for plaintiff in error.

      Wm. LI. Lex and Greorge W. Thorn, for defendants in error.
    March 11th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

This suit was brought .against the acceptor of two bills of exchange. They were drawn by Robert E. Randall, while in London, on the defendant in Philadelphia, payable to the order of Robinson Fleming & Co., and accepted by the defendant. Judgment was entered for want of a sufficient affidavit of defence. To this judgment two grounds of error are assigned.

1. That all laws and rules of court, permitting judgment to be taken for want of an affidavit of defence, are in conflict with the constitutional right of a trial by jury, and therefore invalid.

2. That the affidavit filed does aver a good and sufficient defence.

Having so recently, in the carefully considered case of Lawrence v. Borm, ante 225, held that it was no violation of the constitution to require a defendant to set forth under oath, facts sufficient to show he has a defence, it is unnecessary to repeat the reasons there given, or to add to their number. The first ground is not sustained.

The main facts in the affidavit, on which the other assignments rest, are substantially these : That the drawer is his brother, who has been accustomed to visit Europe for several years, and while there drew on the "affiant on moneys in the hands of the latter, belonging to the drawer ; .that on one occasion he drew through Robinson Fleming & Co.; that affiant accepted the same, and that the funds necessary to meet the draft were furnished by the drawer; assuming that the drawer would in like manner place funds in his hands to protect these drafts, he accepted them for the honor of his brother; that the latter not only failed to furnish the money, but advised him that he had a legal defence to the payment of the drafts, and that affiant had no money in his hands belonging to the drawer when the drafts became respectively due.

Affiant further averred that he was informed, believed, and expected to be able to prove, that the drafts are not the property of the defendants in error; but that they are the property of Robininson Fleming & Co.; that this suit is without their authority, and that the money they advanced on the drafts was not their money, but was the money of said drawer in their hands, and that these drafts were given as memoranda for advances thus made.

If these facts be true, as we must now assume them to be, the defendants in error have no property in the drafts and. no right to bring suit. They stood on no higher ground than the payees. If the payees paid the drafts out of the funds of the drawer in their hands, and now own them, as averred, then they hold them substantially as vouchers for so much money paid, and cannot treat them as bills of exchange so far as to prevent an inquiry into the equities between the parties thereto: Moeck v. Littell, 1 Norris 354. The learned judge, therefore; erred in entering judgment for want of a sufficient affidavit of defence.

Judgment reversed, and a procedendo awarded.


author: Per Curiam.

text:
    Mohry versus Hoffman.
    1. Where a father verbally agrees that his daughter shall reside as a servant in a stranger's family for a certain number of years, he does not thereby surrender his parental control so as to bar his right to recover for her seduction, during her minority, by a son of her employer.
    2. Where a father has not relinquished his right to his daughter’s services beyond recall, but retains the right to command them, he may maintain an action per quod servitium amisit in case of her seduction.
    March 5th 1878.
    Before Asnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trünkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Lehigh county: Of January Term 1878, No. 108.
    This was an action on the case, brought by Francis Hoffman against John Mohry, for the loss of the services of his daughter by reason of her seduction by the defendant. Under a parol contract made with Addison Mohry by her father, the daughter, when about thirteen years of age, went to live as a servant in the family of Mohry, where she was to remain until she was eighteen years of age, receiving schooling, board and clothing from her employer, and when she reached the age of eighteen, Mohry was to supply her with an outfit for housekeeping, consisting of a number of enumerated articles of furniture. The father reserved the right to call the daughter home in case of sickness in his family. She lived for two years with Mohry under this agreement, when she was seduced by Mohry’s son, a lad about seventeen years of age.
    Upon the foregoing facts, a motion by the defendant for a non-suit having been refused, he presented the following among other points, which the court also refused:
    “ As a condition precedent, the plaintiff must show that his daughter was in his service, or he had a just right at will to command her services, and it being the uncontradicted evidence in the case, that by a contract between the plaintiff and Addison Mohry, the services of the daughter were bound to the said Mohry, and by the terms of that contract the daughter became the servant and was in the service of the said Addison Mohry for a definite term, to wit: until she arrived at the age of eighteen years, therefore, the said plaintiff has not shown the essential relation of master and servant, or that by reason of the seduction he lost the services of his daughter, and hence cannot recover in this action.”
    In the general charge, the court, Longaker, P. J., inter alia, said:—
    “As á matter of law, I instruct you that the evidence in this ' case is of such a character that the plaintiff can maintain his action. All that plaintiff is required to do, under the decisions of this state, is to show that his daughter was subject to his control, and that he had the right to command her services.”
    Verdict and judgment for plaintiff for $353, when defendant took this writ, assigning for error the refusal of the foregoing point, and the portion of the charge noted.

      Edward Harvey, for plaintiff in error.
    — An action on the case for the seduction of a daughter is founded exclusively on the relation of master and servant, not parent and child; and the gist of it is the consequential loss of service: South v. Denniston, 2 Watts 474; Martin v. Payne, 9 Johns. 387; Wilson v. Sproul, 3 P. & W. 49; Logan v. Murray, 6 S. & R. 175. The father of an indentured servant cannot maintain action against her master by whom she is seduced, for he has not the right to her services: Dein v. Wycoff, 3 Selden 191.
    A parent cannot maintain an action for the seduction of a daughter not residing in the house with such parent, but being a domestic servant, living in the house of her master: Thompson v. Ross, 5 II. & N. 16; Blaymire v. Haley, 6 M. & W. 55.

      E. Forrest, W. J. Forrest and E. Holben, for defendant in error.
    — The parental control does not cease until the child has attained the age of twenty-one years, and until that time the father may maintain an action for seduction, although the child resides in a stranger’s family: Hornketh v. Barr, 8 S. & R. 39; Hilliard on Torts 518; Bartley v. Richtmyer, 2 Barbour 183; Ingersoll v. Jones, 5 Id. 661.
    March 18th 1878,
   The judgment of the Supreme Court was entered,

Per Curiam.

— The parol contract set up in this case, unlike a legal indenture duly acknowledged, did not transfer the right of service of the plaintiff’s daughter beyond recall. There is no law providing for the arrest of the apprentice in such a case, and her return to the service of her master. While the father, here, might in a proper case, be held liable for a breach of contract, his parental right of control over his daughter is not transferred. The right of action for an injury such as this, per quod servitum, anvisit, therefore, remains, and especially where, as here, the son of the person with whom the contract is made, debauches her in his house. The form of action, or rather the ground of legal liability, is purely technical, while the real injury is the seduction; and as to this the plaintiff never gave his consent, or lost his control of his daughter.

Judgment affirmed.


author: Mr. Justice Sharswood

text:
    Berks County, to use of School District of Greenwich Township, versus Levan et al.

    1. By the Act of April 15th 1834, five per cent, commissions are allowed to tax collectors. The Act of March 24th 1851 gives the collection of taxes in Greenwich township, Berks county, to the lowest bidder, and directs that the difference between the bid and the five per cent, commissions allowed by the Act of 1834 should be paid to the school district of the township. Held, that the practical effect of this act was to reduce the commissions to the amount bid, and that the county can recover the difference on the official bond of the collector appointed under the Act of 1851.
    2. In a suit on a bond, where a legal and equitable plaintiff are joined, it is not necesssary for the latter to show title to the obligation, unless for the purpose of meeting and answering some defence, which, though good against the legal plaintiff, is not good as against him.
    March 5th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Berks county: Of January Term 1878, No. 10.
    Debt on an official bond, brought by the county of Berks, to the use of the School District of Greenwich township, against Francis Levan and his sureties, on an official bond given to the county, conditioned that said Levan should faithfully perform the duties of collector of taxes for' said township, in said county, and pay over to the county treasurer the state and county taxes to be colleeted for the year 1871. The facts áre sufficiently stated in the opinion of this court. The defendant contended that there could be no recovery in this action, and the court directed a verdict for the plaintiff, reserving the consideration of the “legal question” involved in the case. Subsequently a rule to show cause why judgment should not be entered for defendant non obstante veredicto was made absolute, the court, Sassaman, A. L. J., in an opinion, inter alia, saying:—
    “ There is no change of parties and the suit still stands to use on the bond. Under the Act of the 15th of April 1834, section 25, every collector of taxes is entitled to retain, at the final settlement of his duplicate, the sum of five per cent, on all moneys collected. The county could not enforce payment of this five per cent., and we fail to see any power given by the 6th section of the Act of the 24th of March 1851, to the county treasurer, to collect anything more from a tax collector than the ninety-five per cent, of the 'full amount of his duplicate. This bond was given to the county of Berks, and so far as the .proof went it was given in evidence under exception in precisely the form in which it was given originally to the county. The county could not recover on this bond. The equitable plaintiff could not recover any more than the legal plaintiff. An equitable plaintiff suing on a bond would be obliged to show his title to the obligation. There was. none (title) shown in this case. If the legal plaintiff cannot recover it is very evident that the equitable party cannot.”
    This ruling was assigned for error by plaintiff, who took this writ.

      JS. G-. Gtreen, for plaintiff in error.
    — The equitable plaintiff need not be named on the record: Reigart v. Ellmaker, 6 S. & R. 44; Reigert v. Ellmaker, 10 Id. 27; Memphis, &c., Railroad Co. v. Wilcox, 12 Wright 161.

      Samuel L. Young, for defendant in error.
    — The condition of the bond was complied with, and the question is not therefore whether Levan owes the school district, but whether this county has, in this action, the right to recover.
    March 18th 1878.
   Mr. Justice Sharswood

delivered the opinion' of the court,

This was an action on an official bond given by the defendant and two sureties unto the county of Berks, reciting that/ “whereas the above bounded Francis Levan has been appointed by the commissioners of Berks county, collector of county and state taxes for Greenwich township in said county for the year 1871,” and conditioned that the said Levan “shall well and faithfully perform the duties of said appointment as collector aforesaid and pay over the amount of the taxes required to be collected for said township to the county treasurer” within the time limited.

The sixth sect, of the Act of March 24th 1851, Pamph. L. 243, provided that “the collection of state and county taxes in the townships of Maxatawney and Greenwich, in Berks county, shall be given to the lowest bidder for the same,” “ and the difference between the compensation now allowed by law for the collection of such taxes and the bids obtained under the provisions of this sec tion shall be paid into the common-school fund for the purposes of education in said township.”

It appeared that under this section the collection of state and county taxes for Greenwich township for 1871 was awarded to Levan at his bid of $38.90. It appeared also that he had settled in full his duplicate, retaining his full commission of five per cent, on the amount. The difference between the' commission five per cent, and the amount of his bid was $89.30. Whether he is liable on his official bond to the county of Berks for this sum was really the question reserved and upon which a judgment for defendant non obstante veredicto was afterwards entered.

We are of opinion that on the proper construction of the Act of 1851, the collector is legally liable to the county for the whole amount of the duplicate, less the amount of his bid for collection. The difference is to be paid by the county into the common-school fund. Practically the effect of the act is to reduce the commissions to the amount bid. The collector is appointed by the commissioners and is to pay over the taxes collected to the county treasurer. He stands in no relation to the school directors. Some difficulty seems to have arisen in the court below from the fact that the suit on the bond had been marked to the use of the school district. It was mere surplusage. It is the legal party on the record only that is to be looked at, unless indeed a defence should be shown against the equitable party. No doubt this suit was prosecuted for the use of the school district, and if it’ had been shown that Levan had really paid the difference between his bid and the five per cent, commission into the common-school fund, it would have been a perfectly good defence. But nothing of the sort was pretended or offered to be proved. It was an error in the court below to suppose that an equitable plaintiff suing on a bond would be obliged to show his title to the obligation. It is never necessary unless for the purpose of meeting and answering some defence which though good against the legal plaintiff is not good as against him; as for example, payment to the legal plaintiff after notice of the equity. On the whole we think the plaintiff below, the county of Berks, is entitled to judgment on the reserved point.

Judgment reversed and now judgment for the plaintiff in the verdict on the reserved point.


text:
    Kline’s Appeal. Seibert’s Estate.
    1. A testator provided in his will that O. should be one of his residuary legatees, and directed that her share should be held by his executors to pay the interest to her for life, and after her death bequeathed the principal to K. In a codicil he provided, “I give and bequeath to K. the sum of $500, * * * and what I have heretofore bequeath in my will to K. shall be null and void, and that he shall have not more, as I bequeath in my codicil, the annual interest of K. shall be paid to C., and after her death the principal to 1Í.” By a second codicil §500 additional were bequeathed to It., and it then made the following provision. “ And whereas in my said will and in my codicil I have given and bequeath to C. the annually interest during her natural life, which I do hereby declare that the same shall be void, and no heir in my will and codicil, and shall have nothing out of my estate and be paid the same to It., as before mentioned in my will and codicil.” JffeM, that It. was a residuary legatee.
    2. A decree of the Orphans’ Court making a partial distribution of the funds of an estate, is conclusive only as to the funds then distributed.
    3. Guenther’s Appeal, 4 W. N. C. 41, followed.
    March 6th 1878.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Trunkey, JJ. Woodward J., absent.
    Appeal from the Orphans’ Court of Berks county: Of January Term 1878. Nos. 13 and 96.
    Appeal of B. M. Kline from the decree of the court dismissing his exceptions to, and- confirming the report of the auditor appointed to make final distribution of the estate of George Seibert, deceased. The testator died in 1866, leaving a will, wherein he bequeathed his residuary estate to several persons, among whom was his sister, whom he variously designated in his will as Christiana and Catharine. Among the provisions of the will was the following:—
    “ And it is also my will and desire, and I do hereby order and direct that the share of the said Christiana Kline shall remain in the hands of my hereafter named executors. They shall put it on interest and pay her the interest' annually during her natural life, and after her death the principal sum to Benjamin Kline and to his heirs and assigns; and case if he should die without any issues, his share shall be equally divided the same among the other devetees and legatees of residentuary estate above mentioned.”
    In a codicil this was changed as follows :—
    “ I give and bequeath unto Benjamin Kline, the sum of five hundred dollars, to him and to his heirs and assigns for ever. And what I have, heretofore, bequeath in my will to Catharine Grim, Sally Ginder and Benjamin Kline, shall be null and void, and that' they shall have not more, as' I bequeath in my codicil, the annual interest of Benjamin Kline shall be paid to Catharine Kline, and after her death, the principal to B. Kline.”
    And in a subsequent codicil testator provided as follows:—

      “ And further, I give and devise and bequeath the sum of five hundred dollars to Benjamin Kline, to in addition to the first codicil mentioned, to him and his heirs and assigns for ever ; but if it should happen that Benjamin Kline should die without any issue, then in that case I give and bequeath his share to the hereafter legatees * * * their heirs and assigns for ever. And whereas, in my said will and in my codicil, I have given and bequeath unto Christiana Kline, the annually interest during her natural life, which I do hereby declare that the same shall be void and no heir in my will and codicil, and shall have nothing out my estate, and be paid the same to Benjamin Kline, as before mentioned in my will and codicil.”
    An auditor was appointed in 1868 to - distribute the fund embraced in the first account of the executors, before whom the appellee claimed to participate in the distribution as a residuary legatee. The auditor reported he was not a residuary legatee under the will and codicils. The final account of the executors was referred to a second auditor in 1876, before whom Kline again claimed a share as residuary legatee; first, in the fund embraced in the account filed in 1868; and second, in the fund for distribution on the final account. He also claimed that there had been no absolute confirmation of the first report.
    The auditor reported: “Kline has no claim upon the fund embraced in the first account, and the auditor therefore reports against such claim for the following reasons: Said account was duly referred to an auditor, whose report was presented to the court and duly confirmed August 1868. By said report it appeal’s that B. M. Kline claimed participation in the fund then before the auditor, as a residuary legatee, under the will of George Seibert; that the auditor rejected his claim and reported to the court that he was not a residuary legatee under said will and codicils thereto annexed. No exceptions were ever filed to this report by B. M. Kline, but the same was in due time confirmed absolutely by the court. No bill of review was ever asked, and no appeal was ever taken from such confirmation. Before your auditor, no evidence was produced to show that the executors did not act in accordance with said report, and distribute the money among the parties entitled to the same. Neither was it alleged that any mistake had been made in the first account, nor that the accountants had omitted to charge themselves with any item or items which they had received or ought to have received.”
    He further reported that Kline was not a residuary legatee. The court,' Sassaman, A. L. J., dismissed the exceptions filed by Kline to this report, when he took this appeal.

      Daniel and James N. M-mentrout, for appellant.
    — The decree of the Orphans’ Court, confirming an account, is conclusive only of the funds therein distributed, and does not bind the court when another account comes up for adjudication: Guenther’s Appeal, 4 W. N. C. 41. It did not preclude further inquiry as to whether Kline was a residuary legatee.
    The appellant was made a residuary legatee by the will, the payment of his share being postponed until the death of his grandmother, Christiana Kline. The first codicil destroyed this residuary interest and substituted the specific legacy of $500, the income of which was to go to the grandmother, together with the income of the original residuary share in the estate. The second codicil extinguishes the entire provision for Christiana. The first codicil destroyed also the appellant’s right to the principal of the share. A full share of the residuary estate, therefore, is undisposed of as to both' principal and interest. The testator directs “ and be paid the same to Benjamin Kline, as before mentioned in my will and codicil.” It was thus intended that the appellant should have the share of the residue bequeathed to him in the will, and the $500 bequeathed to him under each codicil.

      Amos JB. Wanner and Samuel L. Young, for appellees.
    — In confirming the report of the first auditor the court decreed that Kline was not a residuary legatee, and no appeal having been taken therefrom he is concluded: Bhoads’s Appeal, 3 Wright 186 ; Shindel’s Appeal, 7 P. F. Smith 45; ’ McLellan’s Appeal, 26 Id. 231. The second codicil having revoked the bequest for Christiana, every interest thereunder fell with it. Thereafter the appellant could have no residuary interest.
    May 6th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

The first question we will consider is whether the appellant took as a residuary legatee, under the last will and testament of George Seibert ?

By his original will of the 7th of November 1861, the testator disposed of his whole estate. After several specific devises, he devised all his residuary estate to Christiana Kline, and divers other persons named, to be equally divided among them, share and share alike. He further proceeded to say, “ it is also my will and desire, and I do hereby order and direct, that the share of the said Christiana Kline shall remain in the hands of my hereafter-named executors. They shall put it on interest and pay her the interest annually during her natural life, and after her death the principal sum to Benjamin Kline and to his heirs and assigns,” with remainder over in default of issue. Christiana was a sister of the testator, and Benjamin was her grandson. By the first codicil thereto, dated the 10th of February 1863, he devised to Benjamin Kline, his heirs and assigns, the sum of $500, but declared that the annual interest thereon should be paid to Catharine Kline, and after her death the principal to Benjamin Kline, and he revoked the devise made to Benjamin in the original will. Catharine and Christiana were one and the same person. Benjamin is the appellant. Thus this codicil took from him the residuary estate given by the original will on the death of his grandmother, and gave him a specific legacy of five hundred dollars; but it also gave to her during life the interest on these $500 in addition to the interest on the residuary estate given her in the original will.

On the 21st February 1866 he executed a second codicil. He therein refers to the original will, and to the first codicil, each separately, and to certain of the devises given in each. By this last codicil he devised to Benjamin Kline, his heirs and assigns, the sum of $500, in addition to the sum in the first codicil mentioned. Then referring to the annual interest which he had devised to Christiana in the original will, and also in the former codicil, he proceeds to say, “ And whereas in my said will and in my codicil I have given and bequeathed unto Christiana Kline the annual interest during her natural life, which I do hereby declare that the same shall be void, and no heir in my will and codicil, and have nothing out of my estate, and be paid the same to Benjamin Kline as before mentioned in my will and codicil.”

It is very evident that these testamentary writings were not drawn by an able lawyer or experienced scrivener, yet we think there is no great difficulty in discovering the intention of the testator. It is clearly manifest that the testator intended to revoke those portions of the original will and of the former codicil that gave to Christiana the annual interest, during her life, on the funds therein specified. We think the intent in regard to the. devise to Benjamin is also sufficiently clear. The testator had in his mind the residuary share mentioned in his first will, as well as the specific legacy in the codifiil. He thus revoked each devise giving annual interest to Christiana. It remained to make some disposition of the residuary share thus relieved from her life interest. In his first will he had given it to Benjamin. In the codicil he had revoked it. He now desires to reinstate it. By transposing two words in the last codicil, which will do no violence to its letter or its spirit, the intention of the testator will be more clearly expressed. This we may do : Schott’s Appeal, 28 P. F. Smith 40. The true reading then is, “ and the same be paid to Benjamin Kline as before mentioned in my will and codicil.” “The same” to be paid to Benjamin manifestly did not refer to the interest only, but to the principal sums which would produce the interest. It professed not to take anything from Benjamin’s portion, but to add to it. Never before had he any devise free from the life charge of Christiana. Now they were discharged therefrom, and so discharged they were both to be paid to him “ as before mentioned in my will and codicil.” The language used is fully adequate to give each devise to him relieved from its former charge. There is no legal impediment in the way of giving effect to this instruction. It therefore follows, the learned judge erred in holding that the appellant took no share in the residuary estate.

The other question relates to the effect to be given to the decree of distribution of a portion of the estate, made in 1868. In that distribution the present appellant was represented by counsel. His claim as residuary legatee was presented and disallowed. It is now claimed on his behalf, that the auditor’s report, distributing that fund, was not finally confirmed. The auditor appointed to distribute the present fund found as a fact, that it was absolutely confirmed by the court. No sufficient evidence is produced, to show that he erred in thus finding. We must therefore hold the decree of'distribution there made to be correct as to the fund distributed: hut it is not conclusive as to every question then considered. The precise point arose and was decided in Guenther’s Appeal, 4 W. N. C. 41. There, as here, the executors had filed a partial account, showing a fund in their hands. On the distribution thereof Lina Clara Guenther claimed her mother’s share, under the will of the testator. The auditor allowed the claim. No exception was filed to the report, and it was confirmed. Payments, in pursuance thereof, were made 'to her for several years. On the distribution of funds, subsequently acquired by the executors, the conclusiveness of the former decree of distribution was the direct question. She claimed it was conclusive of her right to share in the proceeds. The court below held otherwise and excluded her claim. On appeal this court affirmed the decree, and said, “ the prior decree of the Orphans’ Court Avas conclusive only as to the funds then distributed.” That, therefore, rules this case. In so far as the appellant Avas excluded as a residuary legatee, from a share in the fund not included in the former distribution, there was error. To the extent thus indicated the assignments are sustained; the others are without merit.

Decree reversed at the cost of the appellees, and the record is remitted to the court below, with instructions to decree distribution conformably with this opinion.


author: Mr. Justice Gordon

text:
    Finkbone’s Appeal.
    1. The Statute of Limitations does not begin to run until the cause of action has accrued.
    2. Where a deposit is made to be returned on demand the Statute of Limitations does not begin to run until after demand is made.
    3, Where two receipts for money are written upon the same paper, the first barred by and the latter within the Statute of Limitations, the latter amounts to a restatement of the account between the parties, and is a sufficient acknowledgment to remove the bar of the statute as to the first.
    4. Lapage v. Jayne, 9 Barr 410, overruled; Girard Bank v. Bank of Penn Township, 3 Wright 92, affirmed.
    March 7th 1878.
    • Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Appeal from the Court of Common Pleas of Berks county: Of January Term 1878, No. 257.
    Appeal of Mary Finkbone from the decree of the court confirming the report of the auditor in the assigned estate of Pen-rose Wiley, deceased. Dr. Penrose Wiley made an assignment for the benefit of creditors, on the 2d of September 1874, and died shortly thereafter, on the 19th of April 1875. On the 7th of April 1876, his assignee filed an account of his trust, and before the auditor appointed to audit the same came the appellant, who claimed certain amounts of money left by her with the deceased for safe keeping. She gave in evidence, several papers in support of her claim, among which were the following, which were both written on the same piece of paper:—
    “ Received of Mary Finkbone at different times since 1862, four hundred and seventy-five dollars — for safe-keeping — which is to be returned to her in such amounts as she may want.
    $475.00. Leesport, May 15, 1868. ' Penrose Wiley.”
    “ Received October 11,1869, of Mary Finkbone, thirty dollars, to be kept and returned to her whenever she shall want it.
    $30.00 Penrose Wiley.”
    The auditor reported that the first claim for $475, was barred by the Statute of Limitations, and refused to allow it. The appellant filed exceptions to this report, which the court, Sassaman, A. L. J., dismissed when she took this appeal.

      A. G. Green, for appellant.
    — This sum was a deposit subject to be drawn at the pleasure of the depositor. It was not an engagement to pay at any definite time, but on demand. Until such demand and refusal to pay, no cause of action arose; nor is it necessary that the demand should be made within the six years: Girard Bank v. Bank of Penn Township, 3 Wright 92; Thorpe et ux. v.
      Booth, 1 Ry. & Moody 468. The second receipt is such an acknowledgment of the first indebtedness at the time the second was written as will bar the statute: Johns v. Lantz, 13 P. F. Smith 324; Patton’s Executor v. Hassinger, 19 Id. 311; Suter v. Sheeler, 10 Harris 308; Yaw v. Kerr, 11 Wright 333.

      Grarret B. Stevens, for appellee.
    — The paper was evidently intended for a due-bill, and not having made demand within six years, appellant is barred from making this claim: Morrison v. Mullin, 10 Casey 12; Campbell v. Boggs, 12 Wright 524. The second receipt was not such an acknowledgment as will take this case out of the statute: Burr v. Burr, 2 Casey 284; Barclay’s Appeal, 14 P. F. Smith 69.
    March 25th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

The questions presented for our consideration, are-, 1. Whether the paper, executed by Dr. Wiley to the appellant, is of such a character as to bring it within the operation of the Statute of limitations ? 2. Affirming this proposition, was there such a subsequent acknowledgment of the claim as relieved it from the bar of that statute ?

The paper under consideration is in the words and language following, to wit: “Received of Mary Finkbone, at different times since 1862, $475 — for safe-keeping — which is to be returned to her in such amounts as she may want. $475. Leesport, May loth 1868. Penrose Wiley.” On the same piece of paper, and immediately under the above receipt, are the following: “ Received October 11th 1869, of Mary Finkbone, thirty dollars, to be kept and returned to her whenever she shall want it.

“$30. Penrose Wiley.”

It is obvious that the obligation, first above stated, is not in the nature of a due-bill, but rather in the nature of a bailment for safe-keeping, or of a deposit, to be returned on demand. It was. due and payable, only, from the time when demand was made, and until such demand no suit would lie for its recovery. Such being the fact, the case is brought directly within the ruling of the Girard Bank v. The Bank of Penn Township, 3 Wright 92, wherein it was held, that the bank could not defend against a claim for a deposit, on the ground that no demand had been made therefor within six years. This decision is put upon the ground that the engagement by the bank with the depositor was not to pay absolutely and immediately, but only when payment should be required, and, that it followed, that no right of action existed, nor did the statute begin to run until after demand made. It is also noteworthy that the case of Thorpe v. Booth, 1 Ry. & Moody 388, is approved, in which the same rule is applied to a note, payable on demand, given by one private person to another.

Were there no other Pennsylvania authority bearing upon this subject, we might consider the question as authoritatively settled, but we have Laforge v. Jayne, 9 Barr 410, which would seem to adopt a principle the very converse of that above stated. It was there held, that a promise to return a specific sum on demand, borrowed on Pike county checks, was barred by the statute if demand were not made within six years from the date of the promise; and Codman v. Rogers, 10 Pick. 112, was cited in support of the ruling. Now, it is remarkable, that Judge Strong, who delivered the opinion in the Girard Bank case, does not mention Laforge v. Jayne, though it was cited by the counsel for the plaintiff in error, but he does refer to Codman v. Rogers, on which it was based, in order to show that this latter case was not authority for the rule adopted. The two cases do, indeed, present some differences by which they might have been distinguished; but it was, no doubt, felt that any effort of that kind must be regarded as but a factitious attempt to exhibit a difference in cases which, though slightly variant in fact, were not so in principle, therefore the case itself ivas passed sub silentio, whilst its doctrine was overruled. We feel warranted in adopting the later case, not only because it was the more carefully considered, but also because it accords better with the general rule that the statute cannot begin to run until the cause of action has accrued.

In addition to the reason thus stated there is yet another why the statute does not operate as a bar in this case. As has already been stated, Dr. Wiley wrote the subsequent receipt of October 11th 1869, upon the same piece of paper and directly under the former. It is very certain, therefore, that the claim in controversy Avas, at that time, not only before his eyes but in - his possession ; when, therefore, he wrote the subsequent receipt upon it and re-delivered it, what was that but an acknowledgment, in the most distinct and unequivocal manner, that, on the 11th of October 1869, he held, for the use of Mary Einkbone, four hundred and seventy-five dollars, plus thirty, or a gross sum of five hundred and five dollars ? It amounts to a re-statement of the account in which thirty dollars are added to the former indebtedness. It is precisely, in its effect, as though Dr. Wiley had delivered, to the appellant, at the date of the last receipt, an account stated setting forth' the receipt of $475, on the 15th of May 1868, and of $30 on the-11th of October 1869. Under this view of the case, we need hardly add that the statute formed no bar to the claim in controversy, and that that claim might not to have been rejected.

The decree of the Court of Common Pleas is reversed. Costs to be paid out of the assigned estate, and a redistribution is ordered.


author: Chief Justice Agnew

text:
    Ex parte Blumer.
    A guardian who fraudulently fails to account for the funds of his ward after a settlement of his account, is liable to attachment and is not entitled to be discharged under the insolvent laws until he has been in custody sixty days. But if, while in custody, he petitions for discharge, he should be committed for trial to the Quarter Sessions, and if a true bill is not found before the next session, he is entitled to his discharge.
    March 7th 1878.
    Before Asnbw, O. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward,.!., absent.
    Certiorari to the Court of Common Pleas of Lehigh county: Of January Term 1878, No. 155.
    This proceeding arose upon the petition of William II. Blumer, which set forth that he had been appointed guardian of Ida Oberly; that upon the settlement of his account it was found that there was due his ward the sum of $2315.16 ; that he was unable to pay the same, and that in consequence an attachment had.issued, under which petitioner was held in custody, and praying that he might be discharged under the Insolvent Debtor’s Act. This petition was supplemented with a schedule of the. petitioner’s debts and the required affidavits. It was objected that the petitioner should not be discharged, because he had not been in custody and confinement for sixty days, and the court, Longaker, P. J., sustained the objection. This refusal to grant his prayer was assigned for error by the petitioner, who brought this suit.

      Edward Harvey and J. E. Stiles, for appellant.

      O. J. Erdman, for appellee.
    March 18th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

The court below erred in holding that the 17th section of the Insolvent Act of 16th June 1836, applies to this case, and prevented a discharge until the petitioner had suffered sixty days’ imprisonment. The refusal to discharge was right itsélf, the petitioner, as guardian, having illegally appropriated the funds of his ward to his own use. The 113th section of the pqnal code of March 31st 1860, 1 Brightly 348, pi. 166, declares, “ If any person being a trustee of any property for the benefit, either wholly or partially, of some other person, or for any public or charitable purpose, shall, with intent to defraud, convert or appropriate the same or any part thereof to or for his own use or purpose, or for the use or benefit of any other person, or shall, with intent aforesaid, otherwise dispose of or destroy such property or any part thereof, he shall be guilty of a misdemeanor.” The 124th section of the same act, p. 349, pi. 177, defines the word “ trustee” to mean a trustee' on some express trust, by deed, will or writing; and to include the heir, devisee and personal representative of such trustee, and all executors, administrators and assignees. The Act of 22d April 1863, 1 Brightly 350, pi. 181, extends the 124th section, just mentioned, to “ include any guardian or guardians of a minor child or children appointed by the Orphans’ Court of the respective counties, in the same manner as \ executors, administrators and assignees.” Thus a guardian fraudulently appropriating his ward’s property to his own use is guilty of a misdemeanor under the 113th section referred to. The refusal to discharge was, therefore, proper, and it was the duty of the Court of Common Pleas, under the 131st section of the same act, to commit the petitioner for trial in the Quarter Sessions: 1 Brightly 352, pi. 189, clause 11. This clause is, “That such petitioner had embezzled or applied to his own use any money or other property with which he had been intrusted, either as bailee, agent or depository, and to the prejudice of the opposing creditors.” The true purposeof the 131st section is to define the duty of the Court of Common Pleas upon its appearing that the petitioner has been guilty of such fraudulent acts as should prevent his discharge, while the indictment in the Quarter Sessions for the fraudulent offence, in this case, would be framed upon the 113th section already quoted. The provisions of the 131st section, the commissioners say, were taken from the insolvent law of 1836, and this accounts for the generality of the language, bailee, agent or depository; language capable of embracing the case of a fraudulent guardian, who unlawfully appropriates the property or money of his ward intrusted to his care.

The court, therefore, after refusing his discharge, ought to have committed the petitioner for trial in the Quarter Sessions, in order that he might have an opportunity of defending himself against the charge of fraud, and showing, if he could, that his inability to account for the ward’s money or property arose from innocent causes. In this view the court erred in dismissing the petition; for the 133d section, 1 Brightly 352, pl. 191, provides for the final discharge of the petitioner under the insolvent laws, if no bill be presented to the grand jury at the next sessions, or if it be not found, or if the petitioner be acquitted on trial. The court, therefore ought to have retained the petitioner and suspended the proceeding until the result in the Quarter Sessions should be known.

The order dismissing the petition is set aside, and the record ordered to be remitted to the court below for further proceedings according to law.


author: Mr. Justice Paxson

text:
    Schimpf & Son versus The Lehigh Valley Mutual Insurance Company.
    1. It is not ultra vires for a mutual insurance company to assess members giving premium notes to pay losses which have occurred to insured who held policies on the “all cash premium plan,” whereby members are free from liability and assessment.
    2. The directors of such company have the power to make such an assessment after a general assignment by the company for the benefit of creditors.
    March 7th 1878.
    Before Agnew, C. J., Sharswood, Merour, G-ordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Lehigh county: Of January Term 1878, No. 48.
    Amicable action in debt brought by the Lehigh Valley Mutual Insurance Company against John Schimpf & Son, to recover an assessment on a premium note. The facts are fully stated in'the opinion qf the court. The case was submitted to the court, under the provisions of the Act of April 22d 1874. In an opinion the court, Longaker, P. J., held that the members of this mutual company giving premium notes were liable to assessments, to pay losses which had occurred to the insured who had policies on the cash premium plan, and that such an assessment was valid and proper, although made by resolution of the board of directors of the company, held more than a month after a general assignment for the benefit of creditors. The court entered a verdict for the plaintiff for $232.25. The defendants filed exceptions, which the court dismissed, and entered judgment on the verdict. The defendants then took this writ alleging, inter alia, that thé court erred in holding as above stated.

      Lutz Schwartz and L. L. Wright tf Son, for plaintiffs in error.
    — The mere fact that a company has a capital stock does not make its policies stock policies, nor does the fact that a company is incorporated as a mutual company and is so called, make any policy it may see fit to issue a mutual policy. If the mere wiping out of the capital stock would have made this company a mutual company exclusively and changed its policies to mutual policies, though in the form of “cash” or “stock” policies, why should the legislature, in the Act of 1871, Pamph. L. 325, provide that thereafter it shall have the powers of a mutual company only. If the defendant in error and the court below are correct, then the Act of 1871 did nothing more than retire the capital stock, leaving the powers of the company as to the character of business it was to transact just as broad as they were before the passage of the act. Yet this can hardly be contended in view of the emphatic recitals and enactments in the act. To permit a member of the company to purchase indemnity from the liability, for which, by the act. all persons are made liable, by the payment of a small annual sum of money, destroys the mutuality that should exist between the members. In a mutual company, he is not only the insured but the insurer, and liable to indemnify his associates, in consideration of his right to insist upon indemnity from them. To strike this feature from his contract, destroys its mutuality. It will not do to say, that by the payment of a definite sum annually the mutuality is continued, because that sum constitutes a fund out of which the other insured persons are to be paid, for the reason that the fixed premium, when it is paid, becomes the property of the company, and not a fund belonging to the insured persons individually, against which the company can make its drafts.

      JEdward Haney and John D. Stiles, for defendant in error.—
    The theory of a mutual insurance company, is that the premiums paid by each member constitute a common fund devoted to the payment of any losses which may occur.» The cash premium may as well represent the insured in the common fund as the premium .notes. Companies have been chartered to do business on the mutual plan, with authority to give the insured the option to pay the whole premium in advance, in cash, without further liability to assessments or to pay in an assessable premium note, and it has been held, that such option is not inconsistent with the principles of mutuality: May on Insurance, sect. 548, pp. 684, 685; Mygatt v. N. Y. Protection Insurance Company, 21 N. Y. 52; White v. Havens, 20 Howard N. Y. 177; Ohio Mutual Insurance Company v. The M. W. Factory, 3 Ohio St. 348; Blanchard v. Waite, 28 Maine 51; Brouwer v. Appleby, 1 Sand. S. C. R. 158. The directors had the rights to make the assessment after the assignment : Burrell on Assignments, 401; Hurlbut v. Carter, 21 Barb, 221; Germantown Pass. Railroad Co., v. Fitler, 10 P. F. Smith 125; Mann v. Pentz, 3 Comst. 422.
    March 25th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

This action was brought in the court below by the Lehigh Yalley Mutual Fire Insurance Company against John G. Schimpf & Son, plaintiffs in error, to recover an assessment upon a premium note. The defendants resisted payment upon two grounds, viz.: 1. That the assessment was ultra vires; and 2d. That it was made by the company after it had executed a general assignment for the benefit of creditors. These two questions involve all that is important in the numerous assignments of error. In order to discuss them intelligently it is essential to have a clear understanding of the facts. The company was incorporated March 30th 1866, Pamph. L. of 1867, p. 1398, with a capital of $20,000, divided into shares of $50 each, with power to increase the capital stock to $500,000, “ and to be organized and managed according to the provisions of an act to provide for the incorporation of insurance companies, approved the 2d day of April 1856, and shall be limited to risks designated in the first class in the 7th section of said act, with the right to transact its business on the mutual principle in connection with its capital stock as aforesaid.” On the 11th of March 1871, a supplement to its charter was passed by the legislature (Pamph. L. 325), which after reciting that the said company possessed the power to insure on the stock and on the mutual principle, that policies had been issued on the mutual principle only, and that $10,000 of the capital 'stock had been paid in, declared, by the 1st section, “ that it shall be lawful for the directors of the said company, with the approval of the holders of a majority of the said capital stock, to withdraw said stock and pay the amount thereof paid in to the parties entitled thereto; and by the second section, “ That if said stock be withdrawn, as above provided, thereafter the powers and liabilities of said corporation shall be those of a mutual insurance company only.” The company accepted this amendment, and the capital stock was withdrawn. After this it proceeded to issue two classes of policies, the one for premium notes and the other for cash. Members insuring upon the all-cash plan were not liable to any further assessment to pay losses, but were permitted to participate in the profits, and to enjoy equal rights with other members. Those insuring upon the note plan paid a cash assessment of ten per cent, upon their premium note, and were liable to further assessment to the full amount of the note, in case the losses and expenses of the company required it. Revenues thus derived were the common property of both classes of members, and were received into and paid out of a common treasury in the liquidation of losses and expenses. On May 16th 1874, the defendants made application to the company for insurance in the sum of $1500, and a policy was issued to them accordingly, for which they gave their note for $875, subject to such assessments as might be made by the company, in accordance with the provisions of its charter and by-laws. In February 1877, the company executed an assignment for the benefit of its creditors, after which the assessment, which is the subject of this contention, was made by resolution of the board of directors. It is admitted that its losses, to cover which the assessment was laid, were on cash policies $30,697.48, and on premium-note policies $7105.55. It was urged that the cash policies were issued by the company in violation of its charter; that by the withdrawal of its capital stock, under the Act of- 1871, it was limited to a strictly mutual business. We think it clear its acceptance of the provisions of that act, and the subsequent withdrawal of its capital, put an- end to its power to insure upon a stock basis. Nor is there any evidence that any stock policies were ever issued. We must not confound a stock policy with a cash policy. They are essentially different. The payment of a cash premium does not decide the character of the policy as to whether it is mutual or stock. A mutual company may insure for either note or cash; so may a stock company. The distinction between them rests upon different principles. A stock policy is issued solely upon the credit of the capital stock of the company to one who may be an entire stranger to the cqrporation, who acquires no right of membership by reason of his policy; no right to participate in its profits, and who subjects himself to no liability by reason of its losses. In such case it can make no difference whether the premium is paid in cash or by note: that is a private matter between the insurer and the insured, which concerns no one but the parties to the contract. Mutual companies, on the other hand, are somewhat of the nature of a partnership ; the insured becomes a member of the corporation by virtue of his policy; is entitled to a share of the profits and is responsible for the losses to the extent of his premium paid or agreed to be paid. In the language of the 11th section of the Act of April 2d 1856, “all persons insuring with (mutual companies), and continuing to be insured therein, shall thereby become members during the period they shall remain so insured and no longer, and shall pay such rates as shall be'determined by the board of directors, and be liable for all losses and expenses of said company to the amount of the premiums paid or agreed to be paid by the members respectively.” The true principle of mutual insurance is the payment by each of the insured of a certain sum of money towards a common fund, which fund is to be held for the protection of each person so contributing. Is there any substantial reason why the cash premium may not represent the insured in the common fund as well as a premium note? There are numerous and respectable authorities which hold that there is not; among which may be mentioned Angell on Fire and Life Insurance 422; Insurance Co. v. Hoge, 21 Howard 64; May on Insurance, sect. 548; Mygatt v. N. Y. Protection Ins. Co., 21 N. Y. 52; and White v. Havens, 20 How. Pr. 177. It was held in Susquehanna Ins. Co. v. Perrine, 7 W. & S. 351, that the insured shall ipso facto be a member of the company, and on no other plan could a mutual company be constituted. The 11th section of the Act of 1856, supra, evidently refers to two classes of premiums, viz.: those which shall be paid in cash, and those which shall be paid by note or other evidence of indebtedness. In either case the insured is liable for losses to the extent of his premium “paid or agreed to be paid.” Where his premium is paid in cash that fixes the extent of his liability. If paid by note such note is liable to future assessments. The one is the equivalent for the other. The practical effect is that the premium note policy holder gets his insurance at a comparatively trifling cost, provided there be no losses. In such event he is not called upon for assessments. But he takes that risk, and in case of losses must respond. The insured for a cash .premium pays in a sum which is considered by the company as a fair equivalent for future assessments, and his proper proportion of the common fund. This is a matter of equitable arrangement between the members of a mutual company. It is not prohibited by any law, and is a matter with which the outside public have no concern. It comes with an exceeding bad grace for a member of the company insured on the note plan to object to the payment of a loss upon a cash policy. By a mutual arrangement, to which the assent of every member must be presumed, the holder of the cash policy has made his contribution to the common fund created for the benefit of all. He has contributed the precise sum which the rules of the company have designated as the quota which in justice he ought to pay. The insured by note have contributed nothing, or at most but little to the common fund, and cannot now be permitted to escape the payment of what they agreed to pay because other parties made their contributions in cash at the time they were insured. We are of opinion that the position of the plaintiffs in error is untenable. It is unjust to their fellow members.

Equally untenable is the position that the directors had no power to make the assessment after the assignment. That instrument passed only the assets of' the corporation, not its franchises. The assignees can do no corporate act. The corporation exists for many purposes, and may make an assessment upon the premium notes where it is necessary to pay debts. Were this not so it is difficult to see how the rights of those members who have sustained losses upon their policies could be enforced; while those who have insured by premium notes would enjoy the protection afforded by the common fund, and at the same time escape the payment of their contribution thereto.

Upon a careful consideration of the case we find no error in the record, and the

Judgment is affirmed.


text:
    Commonwealth, to use of Assignees of Dimes Saving Fund, versus McDowell.
    Where a point is reserved for the opinion of the court, on the trial of a case, it must set out facts as found by the jury or agreed upon by the parties. A judge cannot draw conclusions of fact from the evidence. Hence the reserved question must be a pure question of law and cannot be a mixed question of law and fact.
    March 7th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.

      Error to the Court of Common Pleas of Lehigh county: Of January Term 1878, No. 229.
    Debt by the Commonwealth of Pennsylvania to the use of Peter Gross et al., assignees of the Dimes Saving Fund of Slatington, against Robert McDowell, upon the bond of the latter, as a trustee of said institution, ^conditioned for the faithful custody and appropriation of its funds.
    The Dimes Saving Fund was duly incorporated in 1867. Section 2d of the charter provides: That the business of the said corporation shall be to receive on deposit, from time to time, such sums of money, not less than ten cents, as may be offered by tradesmen, clerks, mechanics, laborers, servants, minors, married women, and others, and to invest the same in the stocks of this Commonwealth, or of the United States, or in stocks or bonds of any city or borough, authorized to be issued by any Act of the Legislature of this Commonwealth, or in other stocks, or in bonds and mortgages, promissory notes, with approved endorsements and other approved and valid securities. * * * *
    In 1873 the trustees, of which defendant was one, invested $21,000 of the deposits in six per cent, interest-bearing certificates of deposit of Jay Cooke & Co., and $12,000 of like certificates of William Painter & Co. These firms having failed, the savings fund became insolvent and appointed assignees, Suit was brought upon defendant’s bond for the investment and appropriation of the deposits of the bank contrary to the terms of the charter. Upon the trial of the case, plaintiffs maintained that the business of the bank and character of the deposits were determined by the charter ; that an investment of $37,000 in Philadelphia, in interest-bearing certificates of deposit, was not necessary to carry on the business permitted, nor such investment of the deposits as directed by the charter. Defendant contended that government securities and other charter-prescribed investments were not available, ready assets for the bank; that the large investment of this character was necessary for the business of the bank, and that it was an investment in accordance with the charter.
    The court directed a verdict in favor of the plaintiff, reserving the question whether or not the whole or any portion of the money in the hands of Painter & Co., or with Jay Cooke & Co., was authorized by the charter of the bank, and whether or not the bond of defendant is legal and valid.
    The court, subsequently, was of the opinion that the whole of the money with Painter & Co. and Jay Cooke & Co., was authorized by the charter, and that the bond was legal and valid, and entered judgment on the question reserved in favor of defendant, non obstante veredicto. Plaintiff excepted and assigned for error the reserving of the question of law and fact, and the entry of judgment non obstante veredicto.

      Fdward Harvey and O. J. Frdman, for plaintiffs in error.
    — The question reserved was a mixed one of law and fact, and was therefore improperly reserved. If a point of law be reserved, it must be done by stating, on the record, the facts on which it arises, without which judgment cannot be entered non obstante veredicto. In order to enter such judgment, the judge below cannot, himself, draw conclusions of fact from the evidence: these are to be determined by a jury or agreement of the parties: Winchester v. Bennett, 4 P. F. Smith 510; Wilde v. Trainor, 9 Id. 439; Barwell v. Wirth, 11 Id. 133; Ferguson v. Wright, 11 Id. 258. A reserved point can only be of a pure question of law: Campbell v. O’Neill, 14 P. F. Smith 290. Facts arising-upon evidence can appear only on record by special verdict, case stated, or bill of exceptions: Willard’s Appeal, 15 P. F. Smith 64.

      R. F. Wright Son and F. J. Fox, for defendant in error.—
    In Miller v. Hershey, 9 P. F. Smith 67, Judge Agnew, in commenting upon the question of the manner of reserving points, says : There are but three modes in which facts, arising upon the evidence, can find their way into the record: first, by the finding of a jury, which is a special verdict; second, by agreement of the parties, called a case stated; and third, by the certificate of the court, contained in a bill of exceptions.” In the case at bar, when the court reserved the questions arising in this case, both parties excepted to the instructions which the court had given to the jury, and asked that “ the notes of testimony b* reduced to writing, and a bill sealed, for both parties.” This was done; and under this bill of exceptions all the testimony has been sent up, with the record, certified to by the learned judge who tried the case below.
    March 25th 1878.
   Mr. Justice Sharswood

delivered the opinion of the court,

What constitutes a good reservation of a question of law arising on the trial of an issue of fact under the Acts of 28th March 1835, Pamph. L. 90, and 22d April 1863, Pamph. L. 554, has been frequently before the court. The rules established are not arbitrary ones, but arise from the necessity of maintaining the distinction between the respective provinces of the court and jury. Hence in order to a good reservation the facts on which the question arises must be found by the jury or agreed by the parties. They must appear on the record by the verdict or agreement. The judge cannot himself draw conclusions of fact from the evidence: Irwin v. Wickersham, 1 Casey 316; Winchester v. Bennett, 4 P. F. Smith 510. Hence the reserved question must be a pure question of law. It cannot be of a mixed question of law and fact, for that -would necessarily draw to the court what properly belongs to the jury : Wilds v. Trainor, 9 P. F. Smith 439; Campbell v. O’Neill, 14 Id. 290. Tested by these-rules the reservation in this case cannot be supported, and as it was excepted to below and has been assigned for error here, the judgment must on that account be reversed. Whether the whole or any portion of the money in the hands of Painter & Co., or with Jay Cooke & Co., was authorized by the charter of the bank, and also whether or not the bond of defendant is legal and valid, which were the questions reserved depend evidently upon facts which are neither found nor agreed. Under what contract, upon what terms the money was in the hands of these parties, are facts essential to the determination of the first of these, questions; and a great variety of circumstances might enter into the decision of the second. The court by whom the reserved point is to be determined either below or in error are not to look through the evidence to ascertain them. They should be so stated as to enable the court to give a final judgment without sending the case to another jury, however the reserved question may be decided. Now here if the court should be of opinion that the bond of the defendant was illegal, or that the money deposited was authorized, judgment might be entered for defendant. But if the court should arrive at a different conclusion that the bond is legal, and the money deposited not authorized, what judgment is to be entered for the plaintiff ? Surely not for the amount of the penalty, unless the sums deposited exceeded that amount. This necessary fact is not found or agreed. Suppose some deposits were authorized and some not. How is the court to draw the line ? It would be fruitless therefore to consider what is a good investment under the charter, and the liability of the defendant under his bond, which seems to have been the questions intended to be reserved, conceding even that to be a pure question of law, since no judgment could be entered on this record.

Judgment reversed and venire de novo awarded.


text:
    Maurer’s Appeal. Kerper’s Estate.
    The power of a married woman over property settled to her separate use, cannot exceed the limits prescribed in the deed of settlement, and although the power to sell includes a power to mortgage, if the deed limits the power to mortgage, a mortgage which exceeds that limit is void. While-such a mortgage is invalid, if it be found, however, that it was given for a loan to release the lien of another mortgage, which was made in pursuance of the power in the deed of settlement, and that part of the money so raised was used for that purpose, it will be good, pro tanto.

    March 7th 1878.
    Before Agnew, C. J., Si-iarswood, Mercur, Gordon, Paxson and Trunk® sr, JJ. Woodward, J., absent.
    Appeals from the Court of Common Pleas of Berks county: Of January Term 1878, Nos. 231 and 250.
    Bill in equity, filed by Henry Maurer and Benjamin Keim, against D. B. Kerper and Eliza his wife, and G. W. Goodrich, trustee of said wife.
    Mrs. Eliza E. Kerper was tenant in tail, under her father’s will, of certain real estate. The entail was barred by a deed to J. Warren Try on, Esq., in which she and her husband joined. On the 24th of April 1863, Mr. Tryon conveyed the real estate vested in him to George W. Goodrich, upon certain trusts, as follows: 1st. The trustee to mortgage the estate for $2000, said sum to be received by Mrs. Kerper, and to be for her sole and separate use. 2d. The trustee to collect the rents, issues and profits, and after deducting repairs, taxes, &c., upon the premises, the interest upon the mortgage aforesaid, and reasonable charges of trustee, to pay the balance into the hands of’ Mrs. Kerper during her life. 3d. Upon Mrs. Kerper’s death, the trustee to stand seised to the use of her children. 4th. The trustee to sell the whole, or any part of the premises, to any person and for any price that Mrs. Kerper might appoint and direct, by writing under her hand and seal, at any time during her life, the purchaser to be discharged from all obligation to see to the application of the purchase-money; the purchase-money to be substituted for the real estate . sold, after the payment of liens and any debts which Mrs. Kerper might have had when the trust was declared.
    On the same day, Goodrich, trustee as aforesaid, executed a mortgage upon the said granted premises, to George F. Smith, who, in turn, and on the same day, assigned it to Goodrich, to secure said Goodrich for any moneys which he had then advanced, or might thereafter advance, to the said Eliza E. Kerper, not exceeding the sum of $2000. Afterwards, to wit, May 25th 1867, by settlement made between Mr. Goodrich and Mrs. Kerper, it was ascertained that Mrs. Kerper was indebted to him $1128, which she then paid out of the moneys received from Maurer and Keim, the plaintiffs, and Goodrich entered full satisfaction of said mortgage. In the meantime, Mrs. Kerper becoming dissatisfied, desired to revoke the trust declared in the deed to Goodrich, and to resume control of her property; and being advised by counsel that her desire could be accomplished, she executed a deed to Zacharias H. Maurer, May 25th 1867 (same day as settlement with Goodrich), revoking the trusts in the deed to Goodrich, and reserving to herself the right to sell .or mortgage the property without limit, intending thereby, among other things, to revoke the trust mentioned in favor of her children. On the same day plaintiffs loaned her $3000, to secure which she and her husband executed a mortgage, payable April 1st 1868, of a house and lot in Franklin street, in the city of Beading, and of a lot of ground on Centre avenue in said city, all the parties believing and understanding at the time, that she was seised of the premises in fee simple, by virtue of the deed of revocation aforesaid. Mrs. Kerper collected the rents of her property and paid the interest upon this mortgage up to April 1st 1868, but a collateral issue then arose involving the validity of the deed revoking the trusts as aforesaid, and the Court of Common Pleas of Berks county, in Kerper v. Grissinger, No. 183, Jan. T. 18G8, ■held that the trust deed from Tryon to Goodrich was irrevocable, and the deed of revocation therefore void. Relying upon that decision, Mrs. Kerper refused to pay either the interest or principal of the plaintiff’s mortgage. A writ of scire facias issued and judgment was obtained by default upon the mortgage, but the court stayed the execution and granted a rule to show cause why the judgpient should not be opened and set aside. Thereupon the bill was filed in this case praying that an account be taken of what is due .for principal and interest on said mortgage; that Kerper and wife pay to plaintiffs the amount due, together with costs, and in default, that they and all claiming under them be absolutely foreclosed of all equity of redemption in said mortgaged premises; that, .the deed from Tryon to Goodrich be vacated and annulled, or so reformed’ as to enable Mrs. Kerper to convey her, estate in fee, and receive the purchase-money to her own separate use; that Goodrich, trustee, be required to execute a mortgage to plaintiffs for the same amount and upon the same premises described in mortgage to plaintiffs by Kerper and his wife; that Goodrich be required to apply the personal estate of the said Eliza E. Kerper, and the rents, &c., of the real estate, to the satisfaction of her engagements with plaintiffs.
    The bill and answer were referred to a master, before whom the foregoing facts were disclosed, and who reported a decree: “ 1. That the rents, issues and profits of the real estate embraced in the mortgage be paid to the plaintiffs towards payment of the amount due on their mortgage. 2. That George W. Goodrich be directed and ordered to sell and convey in fee simple the lot of ground situate on the west side of the Centre turnpike, in the city of Reading ; that the proceeds of such sale be invested, and the income or interest thereof be paid to the plaintiffs, towards the payment and satisfaction of their mortgage. 3. That the rents, issues and profits of all the other real estate mentioned and embraced in the deed from J. Warren Tryon to George W. Goodrich be paid to the plaintiffs. for the same purpose, until said mortgage is fully paid.”
    Exceptions were filed to this report by both plaintiffs and defendants, which the court dismissed, and confirmed the report. Both plaintiffs and defendants appealed. The former alleged, inter alia, that the court erred in finding that the execution of the mortgage by Goodrich to Smith, exhausted the power to mortgage for $2000 ; in not finding that the power to mortgage for $2000, was a continuing power to be repeated as often as desired, until the lien was discharged and paid by sale of the real estate; in not finding that the mortgage to plaintiffs for $3000, was, in equity, an exercise of the power to mortgage for $2000, and of the power to sell for payment of antecedent debts, for the remaining $1000; in not finding that the power to sell included the power to mortgage, and that as this power had been executed in substance, equity would remedy the defect in form; in not entering a decree for the sale of the real estate mortgaged, for the payment of the whole amount due plaintiffs, with interest; in not entering a decree requiring the trustee to sell or mortgage all of the real estate conveyed to him, or so much thereof as may be necessary to pay the amount due plaintiffs, with interest.
    The defendants alleged, inter alia, that the court erred in directing the appropriation of the rents, issues and profits of the estate to the payment of the plaintiffs’ mortgage.

      Richmond L. Jones and W. H. Livingood, for Maurer & Keim, appellants.
    — The fourth trust directs the trustee to sell everything, at Mrs. Kerper’s request, to whom she pleases, and for the price she names. This power to sell undoubtedly includes the power to mortgage: Kent Com. 345; Sugden on Powers 478; Mills v. Banks, 3 P. Wms. 9; Lancaster v. Dolan, 1 Rawle 247. Her power to mortgage under the first trust to the extent of $2000, and under the fourth trust to any extent whatever, being established, it remains to consider the third question: Will equity treat the mortgage to the plaintiffs, executed by Mrs. Kérper and her husband, as an exercise of the power reserved to her in the trust deed ? The intention and the power to mortgage having been found, the only difficulty remaining is that the power was not well executed in law, and it is to remedy this defect that we have appealed to equity. The mortgage to plaintiffs is an instrument in writing under seal,' and thus answers the requirements of a request from Mrs. Kerper to the trustee to sell or mortgage, no form for which is prescribed. Upon this, equity will compel the trustee to formally execute the power.

      A. G. Green, for Kerper and wife.
    — Granting that 'the deed to Goodrich is an executed, continuing and valid trust, how can it be affected by the acts of the person declaring it ? If Mrs. |£erper is entitled to the rents by virtue of this deed, how can she be deprived of them ? Certainly not by her own act, for that would impair the trust instead of preserving it. But it is said she made a contract by which she parted with her right to the rents; that by executing the mortgage to plaintiffs she relinquished her right to receive them. She is not competent to make such a contract. It may be admitted that a contract for necessaries made on the credit of her separate estate would be collectible out of the rents coming to her under the trust. But a contract to transfer the rents could not be enforced, and hence no act of hers, whether by a mortgage on real estate she does not own, or an agreement to make the income of the trust estate liable for money loaned, will be effectual for this purpose. To hold any other view would be utterly subversive of the object of the trust: Graham v. Long, 15 P. F. Smith 385.
    March 25th 1878.
   Mr. Justice Sharswood

delivered the opinion of the court,

It is too late to shake the authority of Lancaster v. Dolan, 1 Rawle 232. Whether the decision in that case was right or wrong it .has been so often recognised and affirmed since 1829, that it is now one of the most firmly established rules of property in this state. Under the deed of trust of April 24th 1863, executed by J. Warren Tryon, with the assent of Daniel Kerper and Eliza E. Kerper, to George W. Goodrich for the sole and separate use of Mrs. Kerper during her natural life, with remainder to her children, she, being a feme covert, had no power over the separate estate except what' was expressly reserved in the deed. There was an express power reserved to the trustee to execute a mortgage of §2000 for the sole and separate use of Mrs. Kerper absolutely. This mortgage was executed, and, as the master rightly held, that power was exhausted. Subsequently, under a mistaken idea that the deed of trust was revocable, a deed was executed on the 25th day of May 1867 by Kerper and wife to Zacharias N. Maurer in fee, the object of which was to vest in Mrs. Kerper the title to said premises in fee simple for her own exclusive use. It is not now pretended that this deed was operative for the purpose fir which it was designed. The trust for Mrs. Kerper for her sole and separate use for life continued unaffected by it. On the 31st May 1867 Mr. and Mrs. Kerper executed a mortgage to secure the payment of two bonds in favor of Henry H. Maurer and Benjamin Keim of §1500 each. The money was loaned in good faith on the security of the mortgage, in the belief that the deed of trust was revoked and that the mortgagors had a perfect right to make the mortgage. Of the money thus loaned it is reported by the master that about §1100 was used to pay the balance due on the mortgage for §2000 given under the express power in the trust deed, and satisfaction was then entered on that mortgage. In the original trust deed there was a power to Goodrich the trustee to sell “to any person or persons and for any such sum or sums of money as the said Eliza E. Kerper, by wilting under her hand and seal, at any time during her natural life may appoint and direct, and to discharge the purchasers from all obligation to see to the application of the purchase-money ; and the purchase-money of the premises so sold or any part shall in all respects be substituted for the real estate sold as regards the enjoyment and ownership thereof.” It is now contended that the mortgage to the complainants of May 31st 1867, is a valid instrument under the power. Without doubt a power of sale includes a.power to mortgage; nor is it necessary that the deed should on its face refer to the power if it can take effect in no other way. It has also been held by this court that where there is a power in a trustee to convey to such persons as the cestui que trust shall appoint, a deed executed by the latter is a good appointment and the trustee will be decreed to convey: McFadden v. Drake, 29 P. F. Smith 473. In that case hoivever the cestui que trust had the absolute equitable estate, an estate-tail, indeed, but which when converted into money became absolute. In equity then she would be considered as the owner of the money produced, and the payment to her discharged the purchaser. Here however the cestui que trust had but a limited interest for her life, and it was expressly declared, as we have seen, that the purchase-money should in all respects, be substituted for the real estate sold as regards the enjoyment and ownership thereof. If the mortgage had been made by the trustee, or if it had appeared that the mortgage-money had been paid to him, as his was the hand appointed to receive it, undoubtedly under the clause inserted in the deed for that purpose, the mortgagees would not have been bound to see to the application of the mortgage-money. Those interested in remainder must look to-the trustee. But here the mortgagees did not pay the money into the hand appointed to receive it. They had express notice of the trust on the face of the deed. They paid the money to Mrs. Kerper, and so far and so far only, as she had a right to the money received, can the appointment by way of mortgage under the trust deed be supported. But had she not a perfectly good and absolute title to so much of the mortgage-money as was actually applied to the payment of the balance upon the mortgage expressly authorized by the trust deed for her absolute use ? It is not easy to see upon what principle of equity she can controvert the claim of these mortgagees to the security of their mortgage under the power, for so much as was applied by her to relieve her estate from a valid subsisting encumbrance, placed upon it for her sole benefit. It was to that extent a. rightful application of the proceeds of the mortgage under the trust deed.

The bonds which the mortgage was given to secure were void as personal obligations of Mrs. Kerper. They were neither at law or in equity any charge upon her estate. We are of opinion that so much of the decree as sequestered the rents and profits of Mrs. Kerper’s estate to be paid to the complainants was erroneous, as was the order of sale of the mortgaged premises, the proceeds to be invested and the interest paid to the plaintiffs towards satisfaction of their mortgage; but we are of opinion that the complainants are entitled to the security of their mortgage to enforce the pay-, ment of $1148.48, or whatever was the exact amount of the balance paid on the $2000 mortgage, with interest. To this extent the mortagees have a full remedy at law upon their mortgage, and it will be the duty of the court below to permit them to proceed thereon for the purpose of realizing that amount.

Decree reversed and bill dismissed, each party to pay their own costs in the court below and on this appeal.