author: Mr. Justice Woodward

text:
    The Glamorgan Iron Company versus Snyder.
    1. Under the various Acts of Assembly which have provided for the dispositions of causes by a law judge from another district, where the proper president judge is unable to preside, it was never designed that the law judge thus called should perform his duties under the supervision and subject to the appellate control of the associate judges unlearned in the law.
    2. "Where, therefore, a judge learned in the law thus called into another district holds any matter under advisement, and in vacation' determines the matter so held, the associate judges cannot set aside his decision and make a different one, and it differs not whether the question so held and decided arose at the regular term of the court or at the session of a special court.
    3. The relations of associate judges to the court discussed and defined by Woodward, J.
    May 28th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Common Pleas of Mifflin county: Of May Term 1877, No. 21.

      This was an action of trespass on the case, brought by Joseph Snyder against The Glamorgan Iron Company, for damages alleged to have been sustained by plaintiff, in consequence of the negligent washing of defendant’s ore whereby the land of plaintiff was overflowed and a spring and a stream of water thereon were polluted.
    The facts are sufficiently stated in the opinion of this court.
    D. W. Woods and Greorge W. Elder, for plaintiffs in error.
    When a special court is held in any judicial district by the president or associate law judge of another judicial district, and matters are held under advisement and points reserved, and a motion for a new trial is left pending after the term or session, the judge so holding the special court has the power in vacation to determine the matters so held under advisement and send his decision in writing to the prothonotary or clerk of the court, and when his decision is entered of record, the associate judges of the county in which the court was held have no authority to set his decision aside and enter another and entirely different one in vacation. We further contend that the associate judges of the county have no authority whatever to enter any decree on the points reserved or the motion for a new trial in vacation ; that this power belongs solely to the president or other law judge holding the special court: Act of Assembly of May 5th 1864, sect. 2, Pamph. L. 829, 1 Br. Purd. 232, pl. 133. It was held in Kolb’s case, 4 Watts 154, that the associate judges cannot determine a motion for a new trial in the absence of a president judge.

      John A. McKee and Andrew Reed, for defendants in error.
    This case was tried at the regular term of the court, and not at a “special court,” and the argument of plaintiff in error does not apply. The Act of 1864 is particularly limited to special courts, but this case is embraced by the provisions of the Act of April 2d 1860, Purd. Dig. 232, pl. 130, where it is provided that the president judge of one judicial district may call upon the president judge of another judicial district “ to hold the regular term of the court.” No case at the term was certified into a special court. It is contended that the associate judges are a proper part of the court to decide the question of granting a new trial, and with equal power with the president.
    June 11th 1877.
   Mr. Justice Woodward

delivered the opinion of the court,

At the January Term of the Mifflin Common Pleas in 1876, this cause was tried before Judge Junkin, President of the 41st Judicial District, in place of Judge Bucher, by whom the business of the court had been begun, but who had been called home by the death of a relative in Lewisburg. The trial resulted in a verdict in favor of the plaintiff below for $300. The defendants moved for a new trial, and at the succeeding term, in April 1876, the motion was argued. On the 3d of May 1876, in vacation, an opinion was filed by Judge Junkin, embodying an order for a new trial unless the plaintiff should file, within thirty days, in the prothonotary’s office, a release to the defendants of all damages to arise thereafter from the injury which had formed the foundation of the January verdict. On the 27th of May 1876, also in vacation, the associate judges of Mifflin county signed a paper in which they expressed their entire satisfaction with the verdict, overruled the motion for a new trial, and directed the entry of judgment. This paper was entered of record, and stands as the final disposition of the cause.

For many purposes the associate judges of the several counties of the Commonwealth have formed a most useful class of public officers. In the absence of the President Judge, their services have been almost indispensable where formal judicial action in vacation has been required in the current practice of the courts. Wherever two or more counties have constituted a district, their local knowledge has been found to be an essential aid in adjusting questions relating to the values of property, to appointments of minor officers, to bail, and to the selection of viewers, appraisers and inquests in the Orphans’ Court and Quarter Sessions. In the minor details of the business of the Common Pleas also, president judges have been able to rely safely on their judgment, integrity and business experience. But in the conduct of jury trials they have usually not sought to interfere, and usually their interference has not been invited. The purely legal business of a court of original jurisdiction must be subject to the control of a single judge, if efficiency, promptitude, and official responsibility are worth maintaining. If the deliberately formed purpose of a president judge may be thwarted and overturned by action on the part of his associates which must necessarily be ill-considered and may often be prejudiced, rules of law will be subordinated to individual caprice. The president is the constitutional head of the court, under responsibilities to the community which a court of review can always enforce, and hedged around by duties and obligations for the performance of which no other guaranty is needed than his regard for his own professional reputation. The fact that in Pennsylvania thére has been no failure in the due discharge of those duties and obligations, is adequate proof that the exercise of supervisory and appellate jurisdiction by associate judges is, to state the conclusion in the mildest form, entirely superfluous.

Ail the Acts of Assembly which have provided for the disposition of causes by a law judge from another district where the. proper president judge may be unable to preside, have been cases requiring the employment of trained legal experience, and that experience the legislature have assumed that associate judges do not possess. It certainly was never designed that the president of the Forty-first district should be called into the Twentieth district to perform duties within the recognised jurisdiction of the associate judges of Mifflin county. Nor was it designed that the president judge thus called should perform his duties under the scrutiny and supervision and subject to the appellate control of those associates. The Act of the 4th of April 1884 authorized special courts to be held by the nearest resident president judge, whenever the president judge of any court should be personally interested; whenever the-title of any party should have been derived from him; whenever any near relative should be interested; and whenever he should have been counsel for either party in any suit or in any other action touching the same subject-matter. By the 1st section of the Act of the 10th of April 1849, it was made lawful for the president judge of a county where a special court was required, to hold the courts of the adjoining district in place of the president judge holding the special court. By the 2d section of the same act it was provided that, if the despatch of business should require it, the judge whose place was supplied might take the place of the other judge at any regular term or at any adjourned court, and that all proceedings had should have the same force and effect as if the same had occurred before the proper president of the district. The Act of the 22d of April 1856 directed that any cause, prosecution or proceeding, in which any president judge should be interested, should be tried and heard before the nearest disinterested president judge. The Act of the 2d of April 1860 permitted a president judge who should be unable to hold the regular term of the courts in any county, to call on any other president judge in the Commonwealth to supply his place. With the law thus established by these enactments, the Act of the 5th of May 1864 was passed. The 2d section provided: “ For the purpose of expediting and furthering the business of special courts holden by any president, district or associate judge, where matters shall be held under advisement by him, or points reserved, and when motions for a new trial and in arrest of judgment, and other questions, shall be left pending after the termination of the term or session, the judge so holding the said special court shall have power, in vacation, to determine the matters so held under advisement, reserved and left pending, and to send his decision in writing to the prothonotary or clerk of the court, as the case may be (with his reasons, if he deem it necessary), to be filed of record in the cause, either in vacation or in term-time, with the same effect as if decided and entered in term-time.” All these statutes are in pari materia, and are to be construed as parts of a system designed to be general and symmetrical. The spirit and reason, the subj ectmatter, and the effects and consequences of the Act of 1864, require it to be so applied as to embrace not only the courts authorized by the Act of 1834, but. those authorized by the Acts of 1849, 1856, and 1860. However varied the earlier statutory language, and however limited the scope of the 1st section may have been, the legislature had no other end in view, in the 2d section of the Act of 1864, than to regulate the practice in all the cases in which law judges should hold courts out of their respective districts, and in all cases those courts were included in the designation in that section of “special courts.”- This is clearly shown by the phraseology employed. The power conferred was extended to “any president;, district or associate judge.” The questions to be decided in vacation were those “ left pending after the termination of the term or session” — the regular “term” on the one hand, and the “session” of the special court on the other.

Judge Junkin’s order of the 3d of May 1876, was in due exercise of statutory authority, and was a final and binding determination of the subject of the controversy, which could not be legally disturbed except - by the supplementary action of the Common Pleas on a formal application in open court. The step taken by the associate judges was wholly unwarranted. In no case has authority been conferred on them to enter a final judgment by their fiat in vacation. It is extremely doubtful, indeed, whether even in a court held by them alone, they would be justified in interfering, without the consent of the parties, with a record made up in a cause where the necessity for a special court had been once judicially ascertained. Kolb’s Case, 4 Watts 154, was an application to the judges of the Common Pleas of the county of York to hear and determine a motion for a new trial in a case where the president before his appointment had been concerned as counsel. The fact that he had been thus concerned was necessarily treated as an adequate answer to the application on his behalf. The answer of the associate judges alleged their legal incapacity to act. Their refusal was sustained, and the motion was denied on the ground that the case was within the clear letter, spirit and meaning of the Act of Assembly relating to special courts. A practice based on a recognition of the right of judges unlearned in the law to interpose in questions so delicate and complicated as that out of which this controversy has grown, would encourage unseemly conflicts, subvert all wholesome discipline in the administration of. the law, and produce every variety of disorder and disaster.

The order made on the 27th of May 1876, by George Weiler and A. Troxel, Associate Judges of the Court, of Common Pleas of the county of Mifflin, overruling the motion for a new trial and directing judgment to be entered on the verdict, is reversed and wholly set aside.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Wise versus Rhodes.
    Testatrix by her will gave to her sister-in-law a house and lot together with interest of her personal estate in consideration that she would take care f anci provide for the comfortable maintenance of the husband of testatrix, was old and enfeebled,during his natural life. Held, that if the husband, a full knowledge of the property, consented that the devisee should enter take possession undqr-the will, and by his request she took possession for a period of several months discharged the duty imposed upon her by will, he was presumed to have elected to take under the terms of the will was estopped from making any other claim to the property.
    May 28th 1877.
    Before Agnew, C. J., Siiarswood, Mercub, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Blair county: Of May Term 1876, No. 26.
    Ejectment by Abraham Rhodes against Sarah Wise, for a house and lot of ground.
    The plaintiff claimed as tenant by the curtesy and the defendant as devisee under the will of Mary Rhodes, the wife of plaintiff. Abraham Rhodes, it appeared, was an old and feeble man, and his wife devised the property in dispute together with the interest of her personal estate to the defendant, a widowed sister of the plaintiff, to be used by her in his support.
    The defendant contended that the plaintiff had elected to take under the will and to support this contention gave evidence to show, that he had induced defendant to leave, her home, remove her goods to the house, and that she had there nursed him for eight months, and expended her means in his maintenance; that during this time he accepted her services under the will and never complained of its terms or the treatment he received, and that he therefore was es-topped from setting up the claim here made.
    The verdict was for the plaintiff, and this writ was taken by the defendant.
    The other material facts and the fourth point submitted by defendants, with the substance of the reply of the court thereto, will be found in the opinion of this court.

      Samuel S. Blair, for plaintiff in error.
    One who has taken a beneficial interest under a will is thereby held to have ratified every other part of the will, and will not be permitted to Set up a claim, however well founded, to defeat its operation: Thelluson v. Woodford, 13 Ves. 209; Churchman v. Inland, 1 Russ & My. 250; Tibbetts v. Tibbetts, 19 Ves. 655; Brown v. Rickets, 3 Johns. Ch. 553.
    An election by matter in pais must be manifested by plain and unequivocal acts with a full knowledge of all the circumstances and of the party’s rights: Anderson’s Appeal, 12 Casey 496; Kreiser’s Appeal, 19 P. F. Smith 194.

      H. M. Baldridge, for defendant in error.
    An election by matter in pais can only be plain and unequivocal acts with a full knowledge of all the circumstances and of the party’s rights : Anderson’s Appeal, 12 Casey 496; Kreiser’s Appeal, 19 P. F. Smith 194; Dickinson v. Dickinson, 11 Id. 401.
    The husband has the option of taking his estate by the curtesy in the real estate of his wife, or such share of her real and personal estate as she can when electing to take against his will: Clarke’s Appeal, 29 P. F. Smith 376.
    June 11th 1877.
   Mr. Justice Sterrett

delivered the opinion of the court,

Both parties claim under Mary Rhodes, deceased, whose last will and testament contains the following clause, viz. : “ I give and bequeath to my sister-in-law, Sarah Wise, my house and lot of ground, with all the improvements thereon, in the town of Newry, with all the household furniture and everything therein, for which the said Sarah Wise is to keep and take good care of my dear husband Abraham Rhodes after my death — to provide for him everything necessary to make him comfortable and happy during his natural life. I also will and bequeath to my sister-in-law, Sarah Wise, all the interest of my money during the lifetime of my husband, Abraham Rhodes, so that he may be well taken care of.”

The plaintiff, in the court below, claimed the house and lot, in question, as tenant by the curtesy, alleging that he had declined to accept the provisions of his wife’s will. The defendant claimed as devisee of Mary Rhodes and contended that her. brother had acquiesced in the will, and accepted the provisions intended for his benefit, and that she had been taking good care of him and providing everything necessary to his comfort; and offered testimony tending to show that he had elected to take under the will and had enjoyed the benefit of its provisions. In view of this and other testimony her counsel requested the court to charge the jury as follows, viz. “ If Abraham Rhodes, having a full knowledge of the- property that passed by the will, consented that Sarah Wise should enter under the will, and if she did so enter by his request and consent and there discharged the duties imposed upon her by the will for a period of eight months, it was an election, on the part of Rhodes, to accept under the will and he cannot recover.”

The court declined to affirm the point, and instructed the jury that, if these facts were found, they would be strong evidence of an election on his part, but not necessarily conclusive. In this we think there was error. In the absence of qualifying circumstances, the defendant was entitled to an affirmance of the point. If the facts were found to be as therein stated, the -legal conclusion would be that he had elected to accept the provisions of the will, and having done so, he could not assert his right as tenant by the curtesy. While the facts stated are not, in express terms, notice to the devisee of his election to take under the will, they are equivalent thereto, and at the same time utterly inconsistent with his claim as tenant by the curtesy. If, with a full knowledge of the property, he consented that the devisee should enter under the will, and by his request she took possession of the property devised to her, and for a period of several months discharged the duties imposed upon her by the will, it was too late for him to say that he did not acquiesce in its provisions. Under such circumstances he would be estopped from claiming otherwise than under the will.

There is nothing in any of the other assignments that calls for special notice.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Paxson

text:
    Durborrow’s Appeal.
    1. One who at a sheriff’s sale purchases the interest of a partner in the personal property of the firm, is not thereby entitled to take possession of any portion of the property.
    2. When the purchaser of such an interest leased the property upon terms to the defendant in the execution, who failed to comply therewith, and refused to deliver possession at the expiration of the lease, Held, that the lease being void the proceedings to obtain possession were all erroneous.
    May 29th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Certiorari sur appeal from the Court of Common Pleas of Huntingdon county: Of May Term, 1877, No. 152.
    The proceedings in the court below were as follows :—
    J. Hall .Musser filed a bill in equity against J. R. Durborrow, which set forth in substance :—
    That on and prior to the 24th day of March 1873, J. R. Durborrow and John A. Nash, under the firm name of J. R. Durborrow & Co., were publishing The Huntingdon Journal newspaper, and were in possession of certain printing presses, types, stock, materials, &c., used in carrying on the same, the said Durborrow claiming in the same an undivided interest of seven-twelfths, and John A. Nash claiming the other five-twelfths ; that on the 25th March 1873, the interest of Durborrow in the same was levied in execution by the sheriff of Huntingdon county for the individual debt of J. R. Durborrow and sold to said Musser. Musser then leased'the property to Durborrow at an annual rental of $600 and agreed that if certain terms were complied with at the end of three years the property should be conveyed to Durborrow. The latter made default in the payment of the rent and as to the other terms of the agreement, and Musser then gave him written notice to surrender the property at the expiration of the lease, at which time he demanded possession and was refused. The bill therefore prayed for specific performance of this agreement and that defendant should deliver to complainant all the property and interest mentioned in the lease; that he be enjoined from selling or encumbering the property, and for a receiver.
    The defendant demurred to the whole bill, and the court overruled the demurrer and awarded a preliminary injunction.
    The defendant then filed an answer and the case was referred to a master, who suggested a decree that Durborrow be directed to pay to Musser $1972.46 with interest, or in default thereof to deliver up to Musser all the presses, types, &c., purchased by Musser as the interest of Durborrow, and the defendant meantime be enjoined from selling or encumbering said property.
    The court, Dean, P. J., overruled the defendant’s exceptions to the master’s report and confirmed the same.
    The plaintiff then made a.n affidavit of non-payment of the $1972.46, and caused to bo issued a writ of habere facias possessionem de bonis, with a fi. fa. for costs, to which the sheriff returned that he had demanded possession of Durborrow, who refused. Upon the petition of plaintiff a writ of assistance under a rule of the court and the allocatur of the president judge was issued, to which the sheriff made return as follows :—
    “ Executed the within writ by going with plaintiff to the printing office of J. R. Durborrow & Co., and then and there declaring to him, that I delivered to him the said plaintiff, all the interest of him the said plaintiff- in the presses, types, imposing stones, cases, racks, and all other printing material purchased by said J. Hall Musser at a sheriff’s sale on the 25th day of March 1873; and money made.”

    Defendant appealed, assigning for error the overruling of the demurrer and the confirmation of the master’s report.

      Greorge B. Orlady and B. Bruce Petriken, for appellant.

      R. M. Speer and S. T. Brown, for appellee.
    June 11th 1877.
   Mr. Justice Paxson

delivered the opinion of the court,

This case is saturated with error. The vice of it runs through all the proceedings in the court below back to the transactions of the parties based upon the sheriff’s sale of the appellant’s interest in the property in question. There appears to have been an entire misapprehension of the legal effect of that sale, resulting in protracted proceedings in equity when there was no jurisdiction, and culminating in a decree which the court below was powerless to enforce. Briefly stated, the sheriff’s sale passed nothing but the interest of the appellant, whatever it may be, in the property levied upon. The reason of this is manifest. The property levied upon and sold by the sheriff to Mr. Musser belonged to the firm of J. R. Durborrow & Co., which, firm rvas composed of J. R. Durborrow, the appellant, and John A. Nash. We need not cite authority to show that upon an execution against one partner for his private debt the sheriff cannot seize the property of the firm. He can only sell the interest of the partner against whom the execution issued. It follows that all the sheriff sold and all that Musser bought was the interest of Durborrow'. As the purchaser of such interest Musser had the right to an account from Nash, nothing more. He could not take the possession of any specific article of property. The possession and the right of possession were in Nash. Hence the various agreements by which Musser attempted to lease the property to Durborrow were no better than blank paper. They had no validity. Musser bought nothing which could be the subject of a lease. He is undoubtedly entitled to an account from Nash, but to what extent and for what property we are not now called upon to decide. Nash .is no party to this record and his rights cannot and ought not to be affected by any decree in this case. The attempt of the court below to put Musser in possession of his interest was a fruitless proceeding. The writ of assistance commanded the sheriff to do an impossible thing. The attempt of that officer to execute the writ sufficiently appears by the return. A writ of habere facias possessionem de bonis with fi. fa. for costs was first issued. Upon this writ the sheriff demanded the possession of the property from Durborrow' and was refused. Then came the writ of assistance referred to with fi. fa. for costs, under which writ the sheriff went .with the appellee to the printing office of J. R. Durborrow & Co., and then and there declared to the appellee that I delivered to him, the said plaintiff, all the interest of him, the said plaintiff, in the presses, types, imposing-stones, cases, racks, and all other printing materials purchased by said J. Hall Musser at a sheriff’s sale, on the 25th day of March 1873, and money made.” All this was harmless enough except the concluding words and money made.” Eor the money thus made the appellant must have restitution. We have not touched the merits of this controversy. They are not before us.

The decree is reversed and the bill dismissed. The costs, including those collected upon the writ of assistance, to be paid by the appellee.


author: Mr. Justice Sharswood

text:
    Woods versus North et al.

    The insertion in a promissory note of the clause, “ and five per cent, collection fee if not paid when due,” renders the note uncertain, destroys its negotiability and relieves the endorser from liability thereon.
    May 29th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Huntingdon county: Of May Term 1877, No. 99.
    Debt by James North and others, trading as the Union Bank of Huntingdon against W. II. Woods, endorser of the following note:—
    “ $377.
    Huntingdon, Pa., May 5th 1875. .
    Sixty days after date I promise to pay to the order of W. II. Woods at the Union Bank of Huntingdon, three hundred and seventy-seven dollars and five per cent, collection fee if not paid when due, without defalcation, value received.
    No. 14915. Due July 7th. Samuel Steeeey.”
    Endorsement — “W. H. Woods.”
    “I waive protest, demand and notice of non-payment on the within note, July 7th 1875.
    W. H. Woods.
    $7 paid on the within note July 30th 1875.”
    The defendant originally pleaded nil debet, to which he subsequently added the pleas of payment with leave, &c., and usury.
    Upon the trial, before Orvis, A. L. J., it appeared that the note in suit was the renewal of a note which had been originally discounted by the bank for the benefit of the drawer on the 28th of August 1871, and had been renewed from time to time thereafter. It was also in evidence that the note was first discounted at the instance of Woods, who was a" stockholder and director in the bank, and that upon the subsequent renewal the maker paid a discount in excess of the legal rate.
    The defence was that the note by reason of the insertion of the clause “and five per cent, collection fee, if not paid when due,” was not negotiable and therefore the defendant was not liable on his endorsement. The note was admitted in evidence under objection made on this ground.
    The defendant submitted the following points, to which are appended the answers of the court:—
    1. That under the evidence in this case the plaintiffs are not entitled to recover.
    Answer. “We refuse to instruct you as requested in this point, but instruct you directly the reverse, that they have a right to recover whatever may be due upon this debt.”
    2. That if the court refuse to instruct the jury as prayed for in the first point, then the defendant asks the court to instruct the jury that the defendant is not liable to pay the five per cent, for collection.
    Answer. “ We refuse to so instruct you. The contract in the note was, that if it was not paid at maturity, the maker, Steffey, would pay five per cent, additional for collection fee. And Mr. Woods endorsed that contract and made himself liable to pay it if Steffey did not.”
    In their general charge, the court, inter alia, said:—
    “ It is urged on part of the defendant that the addition of these words, ‘And five per cent, collection fee if not paid when due,’ destroys the negotiable character of this note, and relieves him from any liability upon it as an endorser. Objection was made to the admission of this note in evidence, and we now instruct you as matter of law, that the addition of these words does not destroy the negotiability of the note, and it does not release Mr. Woods, the defendant, from his liability as endorser upon it.”
    •The verdict was for the plaintiff for $306.98; and after judgment the defendant took this writ, assigning for error the admission of the note in evidence, the answers to his points, and the foregoing portion of the charge.

      D. W. Woods (with whom were Woods, p. p., and Williamson), for plaintiff in error.
    A promissory note must be for a fixed and certain sum, and not for an amount that is variable or subject to any contingency : Story on Bills, sect. 42 ; Story on Prom. Notes, sect. 20-27; 1 Parsons on Notes 37, 38; Bayley on Bills, ch. 1, sect. 6; Cook v. Saterlee, Redf. & Big.’s Lead. Cas. on Bills of Ex. and Prom. Notes 8; Philadelphia Bank v. Newkirk, 2 Miles 442; Patterson v. Poindexter, 6 W. & S. 227; Overton v. Tyler, 3 Barr 346 ; Sweeney v. Thickstun, 27 P. F. Smith 131; Ayrey v. Fearnsides, 4 M. & W. 168; Fralick et al. v. Norton et al., 2 Mich. 130. Here the clause, “ and five per cent, collection fee if not paid when due,” renders the amount uncertain and variable. On the day the note falls due the amount is $377; on the next day it is $395.85. Can it be contended for one moment that the amount to be paid is entirely certain ? If a valid note, does the endorser know at the time of his endorsement which of these amounts he will be called upon to pay ? What obligation was there upon the endorser to pay the five per. cent, for collection ? His liability was fixed when he endorsed the note, and could neither be increased or diminished thereafter. If th.e note had a clause waiving the exemption laws, would his endorsement make this waiver the contract of the endorser?

      K. Allen Lovell, for defendants in error.
    The amount is not so uncertain or contingent as to destroy the negotiability of the note. The cases cited by plaintiff in error are distinguishable from this case, for in them to ascertain the true, amount of the notes sued upon it was necessary to resort to external evidence. Here there is no such necessity as the amount appears on the face of the instrument. In Patterson v. Poindexter, the instrument did not contain an express promise to pay, and in Overton v. Tyler and Sweeny v. Thickstun, contained warrants of attorney. In Nickerson et al. v. Sheldon, 33 Ill. 372, an instrument similar to the one in controversy was held to be negotiable. The tendency of our own and the courts of other states is to a more liberal construction of the law of commercial paper than formerly obtained: Zimmerman v. Anderson, 17 P. F. Smith 422; Hodges v. Shuler, 22 N. Y. 114.
    The liability of the endorser is as broad as the contract of the maker. The exemption clause in a note is not analogous to this case as there the waiver is of a right personal to the maker.
    June 11th 1877.
   Mr. Justice Sharswood

delivered the opinion of the court,

It is a necessary quality of negotiable paper that it should be simple, certain, unconditional, not subject to any contingency. It would be a mere affectation of learning to cite the elementary treatises and the decided cases which have established this principle. It is very important to the commercial community that it should be maintained in all its rigor. Applying it to the note sued upon in this case, we are of opinion that it violates this rule. If it had been made payable at sixty days, with five per cent., it would have been objectionable as usurious on its face. It would not however on that account have invalidated the note or destroyed its negotiability. A negotiable note may be made payable with interest from its date, and if more than lawful interest is stipulated for, it does not in Pennsylvania make the contract void, but only the usury. Hence such a note is sufficiently certain. It is payable at maturity with lawful interest. But, in the paper now in question there enters as to the amount an undoubted element of uncertainty. It is a mistake to suppose that if the note was unpaid at maturity, the five per cent, would be payable to the holder by the parties. It must go into the hands of an .attorney for collection. It is not a sum necessarily payable. The phrase “collection fee” necessarily implies this. Not only so, but this amount of percentage cannot be arbitrarily determined by the parties. It must be only what would be a reasonable compensation to an attorney for collection. This, in reason and the usage of the legal profession, depends upon the amount of the note. Five per cent, would probably be considered by’ a jury as a reasonable compensation upon the collection of a note of $377. But if it were $3000 they would probably think otherwise, and certainly so if it were $30,000. How then can this note be said to be certain as to its amount or that amount unaffected by any contingency ? Interest and costs of protest after non-payment at maturity are necessary legal incidents of the contract and the insertion of them in the body of the note would not affect its negotiability. Neither does a clause waiving exemption, for that in no way touches the simplicity and certainty of the paper. But a collateral agreement as here, depending too as it does upon its reasonableness, to be determined by the verdict of a jury, is entirely different. It may be well characterized, like an agreement to confess a judgment was by Chief Justice Gibson, as “luggage” which negotiable paper, riding as it does on the wings of the wind, is not a courier able to carry. If this collateral agi’eement may be introduced with impunity what may not be ? It is the first step in the wrong direction which costs. These instruments may come to be lumbered up with all sorts of stipulations, and all sorts of difficulties, contentions and litigation result. It is the best rule obsta principiis.

Judgment reversed.


author: Mr. Justice Gordon

text:
    In re Road in Lewistown.
    Where viewers have assessed the damages for a road and re-viewers report the same road with a different amount of damages, the court cannot choose between the two assessments, but must approve the damages last assessed.
    May 29th 1877.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    . Certiorari to the Quarter Sessions of Mifflin county: Of May Term 1877, No. 110.
    Yiewers were appointed to lay out and extend Dorcas street in the borough of Lewistown, who reported in favor of said street and assessed the damages to George Blymyer at $333. Subsequently re-viewers were appointed whose report was adverse to said street. Upon petition of other citizens, re-re-viewers were appointed, who assessed the damages to Blymyer at $350.
    The associate judges (the president judge dissenting) confirmed the first report, which was assigned for error.

      D. W. Woods, for plaintiffs in error.

      Andrew Reed and John A. McKee, for defendants in error.
    June 11th 1877.
   Mr. Justice Gordon

delivered the opinion of the court,

In this case there was a view of the road or street which is the subject of controversy, on which there was a favorable report, and an assessment of damages in favor of George Blymyer of $833. A re-view was granted, on which there was a report unfavorable to the proposed way or street; and finally, on a re-re-view, the report was favorable to the road as first reported and located by the original view, and damages were found in favor of George Blymyer in the sum of $350. The court confirmed the first report, including the assessment of damages. This was wrong. The discretion of the court did not extend to a choice between the damages assessed by the first and last sets of viewers. The approval should have embraced the damages last assessed: Road in Bensalem Township, 2 Wright 368.

The order of the Court of Quarter Sessions is reversed, and the record is remitted with a procedendo.


text:
    The Pennsylvania Railroad Company versus Gorsuch.
    1. Where a report of viewers to assess damages has been made, exceptions filed by both parties and the court has entered judgment upon the award, this judgment is a final adjudication of the controversy until set aside by the court or reversed by writ of error.
    2. The railroad company obtained the appointment of viewers to assess certain alleged damages to G., in the construction of their road. When the viewers made their award the company and the claimant both filed exceptions and the latter appealed, although no appeal was allowed under the Act of 1846 and its supplements, incorporating the railroad. The court on the 16th of June 1874 overruled the exceptions of both parties, quashed the appeal and entered judgment on the award. On the 13th of June 1874 an Act of the General Assembly was approved, allowing appeals in proceedings of this kind, and on the 17th of June 1874 the claimant appealed from the award, under the provisions of this act. The company asked the court to strike off this appeal which was refused, and the case proceeding to trial, resulted in a verdict for the plaintiff largely in excess of the award of viewers. Held, reversing the court below, that the appeal under the Act of 1874 and all the proceedings thereafter were erroneous.
    May 29th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodavard and Sterrbtt, JJ.
    Error to the Court of Common Pleas of Blair county: Of May Term 1877, No. 120.
    The proceedings in the court below were these: The Pennsylvania Railroad petitioned the Court of Common Pleas for the appointment of viewers to assess the damages sustained by the construction of their road through the lands of Harrison Gorsuch, in pursuance of the Act of 27th of March 1848. On the 28th of January 1874, the court appointed said viewers, who on the 16th of March awarded Gorsuch, the claimant, $645 damages. Both parties filed exceptions, the claim'ant, on the ground that the viewers were appointed under the Act of Assembly incorporating the Pennsylvania Railroad and its supplements, wherein no appeal is provided, and that by reason thereof the act is unconstitutional and the appointment of the viewers void. On the 8th of April following, however, the claimant also appealed from the award of viewers. On the 16th of June 1874, the court overruled the exceptions, quashed the appeal of claimant and ordered judgment to be entered upon the award. Three days before, on the 13th of June 1874, an act entitled, “ An Act for further regulation of appeals from assessments of damages to owners of property taken for public use,” became a law, and on the 17th of June, the day after judgment had been entered by the court, the plaintiff entered an appeal, claiming the right to do so under this act, the provisions of which are as follows:—

      “ Sect. 1. That in all cases of damages assessed against any municipal or other corporation, or individual or individuals, invested with the privilege of taking private property for public use, for property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, whether such assessment shall have been made by viewers or otherwise than upon a trial in court, and an appeal is not provided for or regulated by existing laws, an appeal may be taken by either party to the Court of Common Pleas of the proper county, within thirty days from the ascertainment of the damages, or the filing a report thereof in court, pursuant to any general or special act and not afterwards.
    “ Sect. 2. (This merely prescribes the requisites, such as affidavit, &c.)
    “ Sect. 3. That any party entitled to an appeal under the 8th section of the 16th article of the constitution, or who would be entitled to an appeal in any future case under this act, under the same circumstances, shall have the right to take an appeal from any assessment of damages, or re-assessment or ascertainment thereof as aforesaid, made or filed on or after the 1st day of January of the present year, and before the passage of this act; but such appeal shall be taken within thirty days after the passage of this act, and in conformity with the second section thereof.”
    The plaintiff assumed to take an appeal because the ■ assessment of damages was filed after 1st January 1874.
    The defendant obtained a rule to show cause why this appeal should not be stricken off, which after argument, on the 1st of September 1876, was discharged. The appeal having been allowed the plaintiff filed a statement of his claim as ordered by the court, and defendant pleaded specially that the Act of 1848, under which the viewers were appointed, made no provision for an appeal, and that when the judgment was entered on the 16th of June 1874 the plaintiff was concluded. The court overruled this plea and directed defendant to plead generally. The trial resulted in a verdict for $4200, upon which judgment was entered.

      The defendant then took this writ, assigning for error the action of the court in discharging the rule to strike off the appeal and in overruling defendant’s special plea.

      Aug. S. Landis and L. W. Mall, for plaintiff in error.
    The act allowed no appeal, but under the practice customary in such case, exceptions were allowed, and the plaintiff both filed exceptions and entered an appeal. He was heard by the very tribunal to which the law assigned his case, and the exceptions filed by both parties were overruled, the appeal dismissed, and judgment ordered to be entered for the amount of the award. This concluded him. It was tlie-judgment of a competent coyrt, and that judgment could only be disturbed on an application to open and grant a re-hearing, or by a reversal for error apparent upon the record in entering the judgment: Pennsylvania Railroad Co. v. Luth. Cong., 3 P. F. Smith 449. A regular or an irregular judgment can only be reversed on a writ of error, or set aside in the court below on motion: Drexel’s Appeal, 6 Barr 272.

      Samuel S. Blair, H. M. Baldridge and Samuel Calvin, for defendant in error.
    It had not been observed that the confirmation of the report was not formally vacated. It was treated, however, by the court and the parties as vacated, the appeal was allowed and the case proceeded on the assumption that the record in this respect had been formally annulled. The decision was a virtual revocation of the order as prematurely and irregularly made, and this court will regard it as amended: Flanagin v. Wetherill, 5 Whart. 280; Bouslough v. Bouslough, 18 P. F. Smith 498.
    June 11th 1877.
   Mr. Justice Sharswood

delivered the opinion of the court,

We may assume, for the purposes of this case, that the Act of Assembly, approved June 13th 1874, Pamph. L. 283, entitled “An Act for further regulation of appeals from assessments of damages to owners of property taken for public use,” was a constitutional exercise of the power of the legislature, and binding upon the plaintiffs in error, notwithstanding the provisions of their charter and the supplementary Act of March 27th 1848, Pamph. L. 274, upon the same subject. That is a question which, in the view we take, it is unnecessary to consider and decide now. Upon that assumption the judgment in the court below, June 16th 1874, overruling the exceptions to the report of the viewers — quashing the appeal of the claimant and confirming the report — having been entered before the time for an appeal under the Act of 1874 had expired, may be conceded to have been irregular. But it certainly was not void. The report of the viewers had been filed March 16th 1874, and exceptions filed by both the claimant and the company. It cannot be pretended that the court had not full jurisdiction of the case. That judgment was a final adjudication of the controversy until set aside by the court or reversed by writ of error. It is clear then that the appeal entered the next day was irregular and cannot be sustained. The report had been merged in the judgment. We have standing upon this record two judgments— one of June 16th 1874, in favor of the plaintiff below for $645, and another upon the verdict of a jury under the appeal entered June 17th 1874, for the sum of $4200, with interest from March 1st 1872. Certainly both these judgments cannot stand together. The first judgment is not now before us for review. The present plaintiffs in error do not complain of it, and have assigned no error in it. The second judgment then is necessarily irregular, and must be reversed. It is urged, however, very strenuously, that as the court adjourned June 16th — the same day the report was confirmed and judgment entered — the claimant and plaintiff below had no opportunity to move to open or set it aside before the expiration of the time for an appeal under the Act of 1874. The fact may have been so, but we cannot see that it helps the case of the defendant in error. It may have been unfortunate for him that he or his counsel did not know of the passage of the Act of 1874 a day sooner. It may be also that the circumstance would have been a good ground to have appealed to the court below to have made an order setting aside that judgment nunc pro tunc. Whether the court could have made such an order — after the right of the plaintiffs in error had been fixed by that judgment — before any appeal under the Act of 1874 had been in fact entered, is, to say the least, very problematical. , It is further contended that the order of the court of September 1st 1876, discharging the rule to show cause why the appeal should not be stricken off, was in effect an order setting aside the previous judgment. The learned counsel for the defendant in error insists that the confirmation of the report was treated by the court and the parties as vacated, because the appeal was allowed, and the case proceeded on the assumption that the record in this respect had been formally annulled. He contends that this decision was a virtual revocation of the order as prematurely and irregularly made, and this court will regard it as amended. He cites Flanagin v. Wetherill, 5 Whart. 280, and Bouslough v. Bouslough, 18 P. F. Smith 495. But neither of these cases support his contention. They were cases in which mere formal defects in the entry of the judgment under review, which might have been amended in the court below, were considered in this court as having actually been amended. But surely that is a very different thing from considering that a judgment had been set aside nunc pro tunc — supposing even that such an order under the circumstances could have been made in this case. The appeal therefore of June 17th 1874, and all the proceedings under it, were erroneous, and the judgment upon the verdict must be reversed.

Judgment (9th January 1877) reversed.


text:
    Beale’s Executors versus Kirk’s Administrator.
    Whether the presumption of payment arising from lapse of time is rebutted by a given state of facts is a question of law for the court.
    May 29th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Juniata county: Of May Term 1877, No. 78.
    Scire facias sur recognizance issued December 17th 1874, by Thomas M. Kirk, administrator of William W. Kirk, deceased, guardian, to use of minor children of William Jacobs, deceased, against Joshua Beale.
    . The recognizance was given by Joshua Beale and John Milliken in the Orphans’ Court of Juniata county on the 3d of December 1839, conditioned to pay to said guardian for the use of said children the sum of $89.44, with interest, one year from date. On the 19th of April 1875, judgment for want of an appearance was entered against Beale for $279.26. He obtained a rule to open the judgment, which after depositions taken, was made absolute upon the terms that defendant should file the deposition made by himself. He then entered the plea of payment. Upon Beale’s death, before trial, his executors were substituted as defendants.
    At the trial, before Junkin, P. J., to rebut the presumption of payment arising from lapse of time, plaintiff offered in evidence the deposition of Beale taken on the rule to show cause why the judgment for want of an appearance should not be opened.
    In this deposition Beale testified that he had paid Boggs, the clerk of the Orphans’ Court, the sum of $91, on the 8th of December 1840. A receipt to that effect, for the amount of the recognizance, was entered on the margin of the record. Beale also testified : “ In December 1840, I paid the money in all these recognizances in full; I have seen William W. Kirk a number of times since December 1840 ; once I met him at the Burnt Cabins; staid all night with him there, and travelled the next day in company with him a distance of thirty miles to Waterloo; I saw him repeatedly after that time; he never mentioned to me at any time that I owed him anything on the Jacobs estate; I don’t owe these people any money whatever; I have paid them fully all I owe them.”
    The court charged the'jury to the effect that this payment by Beale to Boggs was not a payment to Kirk, and the recognizance in law and in fact still remained due and unpaid, and that the facts as stated by Beale himself were sufficient to rebut the presumption of payment arising from the lapse of time. The court, therefore, instructed the jury to find for the plaintiff, reserving, however, the question whether they should be permitted to infer payment from Boggs to Kirk.
    The verdict was for the plaintiff, and the court subsequently determined tbe reserved question also in the plaintiff’s favor, and judgment was then entered upon the verdict.
    The instruction of the court and this entry of judgment were assigned for error by defendants.

      Ezra D. Parker and R. McMeen, for plaintiffs in error.
    A presumption of payment arises from the lapse of time in this case: Diemer v. Sechrist, 1 P. & W. 420; and if this presumption is not rebutted by evidence accounting for the delay, it is a question of law for the court: Summerville v. Holliday, 1 Watts 507 ; Sellers v. Holman, 8 Harris 321; Foulk v. Brown, 2 Watts 214; Reed v. Reed, 10 Wright 239. The fact that a debtor has the money to pay a debt, endeavors to transmit it to-his creditor, leaves it at a proper place, with a proper person, to be delivered, ought to increase rather than rebut the presumption of payment. The presumption of payment after twenty years is an artificial rule of law, but in this case the transmission of the money by Boggs to Kirk, as a matter of fact, is a reasonable inference and probable conclusion from the evidence.
    There was no paper-book nor oral argument for defendant in error.
    June 11th 1877.
   Mr. Justice Paxson delivered the opinion of the court,

The only question in this case is whether the court below was right in denying to the defendants the presumption of payment from lapse of time. There would have been no difficulty in the case but for Beale’s own testimony. Judgment having been entered against him in his lifetime by default, he moved the court to open the judgment and was sworn. He said he paid the money on this recognizance in 1840, to Joseph. Boggs, the then clerk of the Orphans’ Court of Juniata county, in which court the recognizance was taken. This was not payment to Kirk, the guardian, and the court below held that as there was neither proof nor presumption that the money had reached his hands, the presumption of payment was rebutted. That might have been so had there been nothing else in the case. But there were other matters which have a material bearing upon this question. This recognizance was entered into nearly forty years ago. No suit was brought upon it or demand made until 1874, and after the death of William W. Kirk, the guardian. During all that time Joshua Beale, the recognizor, for aught that appears, was solvent. Had he been insolvent, it would have been a strong circumstance to rebut the presumption, and such fact would doubtless have been proved. Then is there no presumption that Boggs paid the money over to Kirk ? It certainly was his duty to pay it. Common honesty required it. We think there is enough in the case to raise a strong presumption that he performed his duty in this respect. Upon this point there is a portion of Beale’s statement that is material. He says: “ In December 1840 I paid the money in all these recognizances in full. I have seen William W. Kirk a number of times since 1840. Once 1 met him at the Burnt Cabins. Staid all night with him there, and travelled the next day in company with him a distance of thirty miles to Waterloo. I saw him repeatedly after that time. He never mentioned money to me at any time, that I owed him anything on the Jacobs estate.” If Beale’s statement that he paid the money to Boggs is to be used to repel the presumption we must also give him the benefit of his testimony in which he says that although he met Kirk frequently, the latter never made any reference to the money as being still due and unpaid. It seems almost incredible if Kirk had not been paid that he should never have demanded the money from Beale, the more so as he was a guardian and liable to account to his wards. If the money reached Kirk, no matter by whose hands, it was a good payment by Beale. In view of the great lapse of time, the. solyency of Beale, which in the absence of evidence to the contrary it is fair to presume, and the fact that no demand was made by Kirk in his lifetime, it is not an unreasonable presumption that the latter received the money. It was therefore error in the learned judge of the court below to deprive the defendants of the benefit of the presumption of payment from lapse of time. There was not sufficient evidence to repel such presumption and he should so have instructed the jury. There is no conflict of evidence here. The facts being established, whether they are sufficient to rebut it, is a question for the court, not the jury. The presumption is one drawn by the law itself from a given state of facts, and whether it exists or not is necessarily for the court: Reed v. Reed, 10 Wright 239; Delany v. Robinson, 2 Whart. 503.

The judgment is reversed, and a venire de novo awarded.


text:
    McClain versus Boyer.
    1. "Where in an award under the Compulsory Arbitration Law, arbitrators insert in the award the words “ by consent of the parties,” it is not to be implied that the right of appeal is thereby waived.
    2. Nothing but an express agreement can waive the right of appeal from such an award.
    May 30th 1877.
    Before Ágnew, C. J., Sharswood, Gordon, Paxson, Woodward and Sterrett, JJ. Mercur, J., absent.
    Error to the Court of Common Pleas of Blair county: Of May Term 1877, No. 191.

      Assumpsit by A. McClain and Charles Andrews, trading as McClain & Andrews, against Mary A. Weston and J. J. Boyer, trading as J. J. Boyer & Co.
    Boyer was the lessee and keeper of a hotel owned by his sister-in-law, Mary Weston. The plaintiffs, who were butchers, supplied the hotel with meat, and when the bills had aggregated about $2000 demanded a settlement, the bills being made out as against J. J. Boyer & Co. Mrs. Weston denied the partnership and refused to pay them. Suit was brought and Mrs. Weston put in a plea to that effect. The case was ruled for reference under the Compulsory Arbitration Law. The rule of reference was returned with the award of arbitrators thereon in these words:—
    “And now, 3d September 1874, by consent of parties, after having heard their proof and allegations, we the undersigned arbitrators do award no cause of action as against Mary A. Weston, and do award as against J. Jefferson Boyer, the sum of $1797.21 in favor of the plaintiffs.”
    Plaintiffs appealed and subsequently a rule was taken by defendants upon plaintiffs to show cause why this appeal, in so far as it affected Mary Weston, should not be stricken off. The plaintiffs filed an amended narr., but the case was never set down for trial.
    After argument the court said “ that it appearing that the award in the case in favor of Mary A. Weston was made by consent of parties, plaintiffs and defendants, the rule is absolute.”
    This action of the court was the error assigned by plaintiffs, who took this writ.

      A. A. Stevens and R. M. Speer, for plaintiffs in error.
    Does the insertion in the award of the words “ by consent of the parties” amount to a waiver of the right to appeal. These words are not the language of the parties but are given as a reason for the action of the arbitrators. The constitutional right of a suitor to a trial by jury cannot be thus divested: Clark v. Wallace, 3 P. & W. 443 ; Noble v. Houk, 6 S. & R. 421. Nothing hut an express agreement can waive the right of appeal: Dawson v. Condy, 7 S. & R. 366 ; Rowen v. King et al., 1 Casey 409.

      Benjamin L. Hewit and Samuel S. Blair, for defendant in error.
    An award like this is conclusive of the fact of consent.
    June 25th 1877.
   Mr. Justice Sharswood

delivered the opinion of the court,

This was an award under the Compulsory Arbitration Law, and was necessarily subject to an appeal unless it appeared that by agreement of the parties it was to be final and conclusive. What evidence does this record present that there was any such agreement? The arbitrators have inserted in their award the words “by consent of parties.” To wbat did the parties consent? Surely to nothing more than that the arbitrators should then make an award, and even if the construction should be that it meant that they should make just the award which they did, which would be to push the construction to its extreme limit, that would not authorize the conclusion that it was intended to change the whole character of the arbitration from one of the compulsory kind to an agreement of final reference. The right of trial by jury is a constitutional one, and nothing but a, clear agreement can waive the right of appeal. The rule which has been established as to appeals from justices of the peace, is equally applicable to the class of awards of this kind: Dawson v. Condy, 7 S. & R. 366; Rowen v. King, 1 Casey 409. In this last cited case the right of the defendant to appeal even from a judgment by confession was sustained. The reason given in the opinion of the court applies with equal force to an award. It may be a mistake, or the attorney may have acted contrary to the instructions of his client. One party to a suit will sometimes enter a rule to arbitrate for the mere purpose of discovering what his opponent’s evidence is. The other party may properly disappoint such a design by consenting that the arbitrators shall make an award on the evidence before them or find no cause of action without going into his case. He may run some risk as to his evidence by such a course, but surely there is no implication that the right of appeal is intended to be waived. It is not necessary to consider the effect of the delay and the taking the costs out of court.

Order of the court striking off the appeal reversed and procedendo awarded.


text:
    The Huntingdon and Broad Top Railroad, &c., Company versus Decker.
    1. Where a conductor employed on a railroad is habitually intemperate and unfit for such service, and his habits and unfitness are known to the superintendent of the railroad, intrusted with power to employ and discharge, and who employed and retained him in its service, the company is liable in damages for the death of a fellow employee resulting from the carelessness and incompetency of such conductor.
    2. The measure of damages under the Act of 26th of April 1855, where death results through negligence, is such compensation only as the evidence shall clearly prove to have been pecuniarily suffered by the surviving relatives, in this case, by the widow and children of the deceased.
    3. Under the 1st sect, of the Act of 1855 the widow in this case had right of action. The 2d sect, of said act requires that the declaration shah state who are the parties entitled in such action, and that it shall be brought' within one year after the death. The widow brought the action within the time limited, and before trial, but not within the year, the declaration amended by naming the children as j ointly entitled to damages with her. Held,| that the suit was properly brought and in due time, and that the limitation had no application to the subsequent amendment of the declaration.

      May 30th 1877.
    Before Agnew, C. J., Sharswood, Gordon, Paxson, Woodward and Sterrett, JJ. Merour, J., absent.
    Error to the Court of Common Pleas of Huntingdon county: Of May Term 1877, No. 168.
    Case by Mary Decker against the Huntingdon and Broad Top Railroad and Coal Company, to recover damages for herself and children for the death of her husband, Adolphus Decker, who was killed in a collision on defendants’ railroad and whose death she alleged was occasioned by the negligence of defendant.
    • Decker was in the employ of the railroad as a locomotive engineer. His usual “run” was from Huntingdon south to Saxton. On the day of the collision, owing to an accident on the southern end of the road, Deéker was ordered to draw “No'2 coal train” to Mount Dallas, twenty-five miles beyond Saxton. Decker left Huntingdon and was on schedule time at the various points he passed on the road. On the same day an irregular train was run north from Mount Dallas by a conductor named Jacob Bowser. It was not run on schedule time, but by means of telegraph orders transmitted to the different stations along the road, its standing orders, however, which were known to Bowser, were to keep out of the way of the regular trains. Before Bowser left Mount Dallas, McKillips, the superintendent of the railroad, sent a telegraphic order to the operator at Mount Dallas to call Bowser in for orders, and the following order was read and handed to him by the operator:—
    “ Telegraph Train Order.
    ‘No. 2 coal train will be represented. Run accordingly.’ Correct. J. McK. J. McK.”
    It appeared that if Bowser had drawn his train on the siding at Piper’s Run and there awaited until Decker’s train passed he would have been “running accordingly,” but continuing to run after he left Piper’s Run, at a sharp curve, Avhere neither train was visible to each other until a few seconds before the collision, the two trains collided, resulting in the death of Decker, Bowser and three others. The order of McKillips was found on the body of Bowser. It appeared from a remark made by Bowser that he had misread the order as if it had been “ coal train No. 2 will not be represented,” and that in consequence of this mistake he had pushed on and thus brought about the collision.
    The defence was that the railroad Avas not liable for an injury occasioned by the mistake or negligence of Bowser, who was the fellow servant of Decker.
    At the trial the plaintiff offered to prove, (1) by certain witnesses that they were employed by John McKillips as employees or servants of the defendant prior to the accident, and that they Avere then in the employ of the company; that all the schedules and time tables furnished to the employees were printed with McKillips’s name as superintendent at the bottom ; that all conductors arid employees obeyed his orders in running trains and conducting the business of the road, and that he employed and discharged men at his pleasure; (2) to prove by a witness that he was well acquainted with Bowser at the time of the accident; that two hours before it happened witness met and conversed with Bowser, only ten miles from the place of collision, and that Bowser was so drunk that he staggered; that Decker was killed' hy the negligence of Bowser, the result of his habitual negligence and intemperance, to be followed with evidence that the superintendent, McKillips, knew of the habits and character of Bowser; (3) to prove by the witness on the stand, and other witnesses who ran on the train with Bowser, that for more than two years prior to the accident, Bowser was in the habit of getting drank while on duty; of sending the hands employed on his train for whiskey, and holding his train until they would return ; of tapping barrels of whiskey carried on his train as freight, and drinking therefrom, and for this purpose for nine months immediately preceding the accident, carried a gimlet with him on the train; and that during this time he was frequently seen hy McKillips, the general superintendent, in a state of intoxication ; that Bowser was drunk on the day of and at the time of the accident ; and that two bottles, one of them half full of whiskey, were found near his dead body on the day of the accident, and by the first persons who reached the wreck within an hour after the plaintiff’s husband was killed; that whiskey in bottles, such as were found at the wreck, was furnished to Bowser on the day of the accident, a few hours prior to it; that his habits of intemperance and recklessness were so long continued as to have resulted in forming for him a general reputation for recklessness and intemperance, which reputation was known to the superintendent, McKillips, previous to November 1st 1872 ; that prior to the accident, complaint was made by employees to the superintendent of the recklessness and intemperance of Bowser, and that he promised to see Avhathe could do, and said “Wait a little;” that Bowser was repeatedly discharged from the service of the company by McKillips for recklessness, drunkenness and disobedience of orders, and was after such discharge re-employed by him.
    Defendant objected to all that part of the offer which proposed to prove acts of Bowser, not at the time and place of the accident, including all the offer relating to tapping barrels, and the finding of whiskey bottles at the place of the accident, the offer not proposing to show that the bottles Avere in the possession of Bowser.
    The court said: “ In so far as the offer proposes to show that Bowser was an intemperate, reckless man, and that this was knoAvn to McKillips, the superintendent, and that whiskey bottles were found near his body, such as were in his possession or had been given him before the accident, the evidence is admitted. Rut any particular instance of intoxication, except on the day of the accident, is not evidence and is therefore excluded.”
    4. To prove by witness that he is the person mentioned by other witnesses as having been on Bowser’s train on 1st November 1872, with the satdhel and the liquor; that on that day, immediately prior to the accident, he gave Bowser at least two drinks of whiskey, and that before leaving Saxton that day, he saw a person whom he believed to have been Bowser, take a bottle out of his pocket and take a drink from it and put the bottle back again into* his pocket.
    The evidence under these four offers was admitted by the court under objection, and constituted the first four assignments of error.
    The sixth assignment was the affirmance by the court of the following point of plaintiff:—
    “ If under all the evidence, the jury find for the plaintiff, the proper measure of damages is the pecuniary loss suffered by her and her two children; and that loss is what her husband would have probably earned by his labor in his business during his lifetime, and which would have gone for the benefit of the plaintiff and her two children, taking into consideration his age, ability and disposition to labor, and his habits of living and expenditure.”
    Decker was killed on the 1st of November 1872. He left a widow and two children.. On the 23d of September 1873 the widow brought this suit. The children were not therein named nor were they in the narr. filed on the 7th of October 1874. After the cause was at issue, however, on the 2d of April 1875, plaintiff filed an amended narr., claiming for herself and children.
    Defendants’ third point was as follows :—

      “ That the action having been commenced by Mary Decker alone and for her own use, there can be no recovery for the use of the children, and" the verdict in no case can exceed $1666.66f-.” The refusal of this point by the court was the seventh assignment.
    The verdict was for the plaintiff for $6000, which was afterwards reduced by the court to $5000, under the second section of the Act of April 4th 1868, Pamph. L. 58, Purd. Dig. 1094, limiting the recovery in cases of death to the latter sum. Defendant took this writ and the assignments of error, inter alia, were those noted above.

      John Cessna and 8. T. Brown, for plaintiff in error.
    The evidence admitted under the first offer was not the best evidence of the fact sought to be proved, when the printed copies of the regulations of the company were available and would have shown the extent of McKillips’s authority. The conversation had with Bowser was too remote from the place of accident to constitute part of the res gestee and there was no evidence to show knowledge thereof by the company. Neither had it the means of knowing of the specific acts contained in the fourth offer.

      If the children were entitled to a portion of the damages they should have been joined with the mother in the action, and not having been joined her recovery should have been restricted to one-third of the maximum allowed by law.

      R. M. Speer and E. S. McMurtrie, for defendant in error.
    The plaintiff alleged that McKillips was the superintendent of the road, with power to employ and discharge all the hands. How was this to be proved ? Clearly by showing that, with the knowledge and consent of the company, he in fact, exercised these powers, and was held forth to the world as the general superintendent.
    The question being whether Bowser was in an unfit condition to run his train, his acts and declarations at the time were clearly evidence. It was undoubtedly competent also to show his habits of drunkenness, and that they were known to the superintendent, who had the control and management of the road. Such habits, in case of accident, raise a presumption of negligence: Huntingdon and Broad Top Railroad Co. v. Decker, 1 Norris 119; Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 343; Gilman v. Railroad Corporation, 10 Allen 238.
    The instruction in regard to the measure of damages was correct : Pennsylvania Railroad Co. v. Butler, 7 P. F. Smith 338. The limitation in the Act of 1855 is to the time within which the action shall be brought, and not as to when the declaration is to be filed.
    October 1st 1877.
   Mr. Justice Sterrett

delivered the opinion of the court,

The husband of the plaintiff, while engaged as engineer in running one of the company’s trains, was killed in a collision with another train, of which Jacob Bowser was conductor. It was claimed, and evidence was offered to show, that Bowser was habitually intemperate, and unfit for the service in which he was engaged; that the collision was wholly the result of his general carelessness and incompetency, and that his bad habits and unfitness for the position were known to the superintendent by whom he was employed and retained in the service of the company.

The general principles of law, applicable to such a state of facts as was disclosed by the testimony, were very fully and clearly presented to the jury by the learned judge below. It cannot be doubted that one who engages in a general service in which others are employed, assumes the risks of such service, including those which arise from the negligence of his fellow-employees; but, while this is true, a duty devolves on the employer. He is bound to use ordinary care in the selection of his employees, and if he neglects to do so, or if he retains them after he becomes aware of their unfitness or incompetency, he is answerable to the fellow-servant for his negligence in this respect. Applying the principle to this case when it was here on a former writ of error, it was said that when a railroad company employs a conductor who is unfit for the business, and knows his unfitness, it is chargeable with the consequences of his negligence, even to one employed in the same general service, and that the knowledge of the superintendent, intrusted with the management of the road and the power of employing and discharging hands, is notice to the company : 1 Norris 119.

The testimony covered by the first four assignments of error was properly admitted. It tended to prove the incompetency of Bowser; that, the collision was the result of his carelessness or reckless conduct, and that he was employed and retained in the service of the company by its superintendent with a knowledge of his character and unfitness for the position of conductor. The purpose of the first offer was to prove that McKillips was held out by the company, to the employees and the public, as the person in charge of its business. If his name appeared on the schedules and timetables of the road as its superintendent, and he acted as such in the management of its business, giving orders to conductors and other employees, hiring and discharging hands, &c., it was certainly competent as well as strong evidence of agency in these particulars. It is difficult to see how such agency could be more satisfactorily established than by showing that these acts were ¡performed in a manner and under circumstances that clearly justified the inference that they were done with the full knowledge and by authority of the company. It was not necessary to show that he acted under or by virtue of any special form of authority. If, in point of fact, he transacted the business with the knowledge and consent of the directors or officers of the board, -and was thus held out to the public, the company was answerable for his acts done within the general scope of the business with which he was intrusted. The second offer was to prove that Bowser was a man of known reckless and intemperate habits; that about tvro hours before the collision occurred he was so much intoxicated that he staggered; that Decker’s death was occasioned by the recklessness and intemperance of Bowser, whose character and habits were known to the superintendent. All this testimony, as well as that introduced under the third and fourth offers, was both competent and relevant. That portion of the testimony which tended to prove the intemperate habits and character of Bowser, and that he was intoxicated shortly before and probably at the very time of the collision, -was most pertinent and material. “ It is certainly incumbent on railroad companies to employ none but sober men on their roads. When a habit of intoxication in a conductor is shown, it raises, in case of an accident, a presumption of negligence, which stands until it is rebutted:” Railroad Company v. Books, 7 P. F. Smith 343.

The fifth assignment was not presented in accordance with the rules of court and was not pressed on the argument. The sixth assignment, relating to the measure of damages, is not sustained. The instructions given on this subject are in harmony with the act which restricts the recovery in cases like the present, to such compensation only as the evidence shall clearly prove to have been pecuniarily suffered or sustained. The jury were instructed that “ the proper measure of damages is the pecuniary loss suffered by the plaintiff and her two children.” If the children are entitled to participate in the damages recovered, it follows that the instruction was correct.

The subject of complaint in the seventh assignment is the refusal of the court to charge that “ the action having been commenced by Mary Decker alone and for her own use, there can be no recovery ;n this action for the use of the children, and the verdict in no case can exceed the sum of $1666.66$.” This assignment is based on the state of the record and what is claimed to be the proper construction of the Acts of Assembly, regulating actions in cases where death has been occasioned by unlawful violence or negligence. Suit was brought by the widow within a year after her husband’s death, and a narr. was filed in which the children were not named. In 1875, after the cause was at issue, the declaration was amended by inserting the averment, “that the parties entitled to the damages in this action, are the said Mary Decker, widow, and John R. Decker and Minnie Maud Decker, the only children of the said Adolphus Decker, deceased.” Under the Act of 1851, the right of action was given to the widow, and if the deceased left no widow, then to the personal representatives. This was followed by the Act of 1855, which provides that “ the persons entitled to recover damages for an injury causing death, shall be the husband, widow, children or parents of the deceased and no other relative; and the sum recovered shall go to them in the proportion they would take his or her personal estate in case of intestacy, and that without liability to creditors.” The next section requires that “the declaration shall state who are the parties entitled in such actionand that it shall be brought within one' year after the death and not thereafter. Instead of confining the right of action to the widow and personal representatives, it designates four separate parties, to one of whom, according to the circumstances of each case, the right of action is given. If the deceased leaves a husband, he alone is clothed with the right of action; if the wife is the survivor, she is entitled to bring suit; if there be neither surviving husband nor widow, the right of action is given to the children, and if there be neither husband, nor widow, nor children surviving, it is given to the-parents of the deceased. But while the right of action is given, according to the circumstances of each case, to one of the four designated parties, it is clear from the wording of the act, that the entire sum recovered is not always to be retained by the plaintiff in his or her own right. It is to be distributed among the relatives named in the proportion they would be entitled to take the personal property of the deceased in case of intestacy; and, to the end that it may appear who are entitled to participate in the damages recovered, it is required that the declaration shall state who they are. In the present case the widow had the right of action, not exclusively for her own use, but for the joint use and benefit of herself and children. She accordingly brought suit, in her own name, within the time limited by the act. Before trial the declaration was amended by naming the parties entitled to the damages claimed. It appears to us that this is the correct interpretation of the act, and that the proceedings Avere regular. The suit was properly brought, in due time, by the widow, and the limitation had no application to the filing or subsequent amendment of the declaration. If it had been the intern tion of the legislature, that the children should be joined Avith the widow, as plaintiffs in bringing suit, their names would of course appear as such, and there could be no object in requiring “ that the declaration shall state Avho are the parties entitled in such action.” The object of the Act of 1855 was not to take aAvay the right of action given to the widoAV by the Act of 1851; on the contrary it recognises her right and provides hoAV the damages shall be distributed.

The subjects of complaint in the remaining assignments are the answers of the court to the defendant’s fourth, fifth, tenth, eleventh and tAvelfth points. There is nothing in either of them that calls for special notice. They are all substantially correct.

Judgment affirmed.


author: Per Curiam.

text:
    Borough of Port Royal versus Graham.
    1. An ordinary county warrant drawn on the treasurer in payment of a debt is not per se a proper subject of an action.
    2. Such an instrument of writing in the form of a warrant and to be held as a voucher, may contain other matters which make it a contract and evidence of debt.
    3. Money lent bears interest even if the instrument which is the evidence of the debt does not so stipulate in express terms.
    May 30th 1877.
    Before Agnew, C. J., Sharswood, Gordon, Paxson, Woodward and Sterrett, JJ. Mbrour, J., absent.
    Error to the Court of Common Pleas of Juniata county: Of May Term 1877, No. 173.
    Debt by George M. Graham against the borough of Port Royal (formerly Perrysville) on the folloAving instrument of writing:—

      “No. 8. Perrysville, January 27th 1865. $225.84.
    Treasurer of Perrysville Borough.
    Pay to G. M. Graham, or order, two hundred and
    [seal oe the borough.]
    twenty-five 84-100 dollars, with interest from September 1st 1864, out of the borough funds of Perrysville borough, for bounty money loaned to the town council, for which this shall be your voucher.
    Coller Wix, President.
    Attest:
    G. W. Jacobs, Secretary.”
    Endorsed—
    “ Received, January 31st 1867, of Philip Isenberg, twenty-two dollars and forty cents, being amount of bounty tax for year 1866. $22.40. G. M. Graham.”
    “Received, January 18th 1872, of Henry Ebberts, twenty-two dollars and forty cents, being amount of bounty tax for 1869. $22.40. G. M. Graham.”
    Defendant pleaded nil debet, non est factum, payment with leave, and Statute of Limitations.
    At the trial, before Junkin, P. J., on behalf of the plaintiff, the minutes of the town council of the borough were put in evidence, those of the 27th of January 1865 being as follows:—
    “ On motion the clerk was directed to make out bonds or orders to all persons who would loan or advance money to the council or bounty fund to pay volunteers’ bounty, not exceeding $300 each, who entered the service of the United States in the year 1864, under calls of the President, and gave their credit to-the borough, and orders to others to whom the borough is indebted for bounty money.”
    Wix and Jacobs, whose names are attached to the instrument as the president and secretary of council, were called, who proved the instrument and testified that it was given to Graham for money he had loaned to council to pay the bounty to volunteers.
    Graham testified that he had demanded payment from Isenberg, the collector and treasurer of the bounty fund, who refused to pay.
    The following points wrere submitted by defendants, to which are appended the answers of the court:—
    1. Plaintiff has brought suit upon a borough order granted in his favor for a certain sum of money, and has specifically set forth in his declaration as his cause of action the refusal of defendant to pay him the amount of said order. But said order is not a bill, nor note, nor contract, nor such other instrument as will support an action. No recovery can be had thereon, and under plaintiff’s declaration the verdict should be for defendant.
    Answer. “We have disposed of this point in the general charge, and reserved it for further consideration.”

      2. But if the court should decline so to charge, then that the order having been granted more than six years before suit was instituted, the Statute of Limitations will bar a recovery thereon. The credits which appear to be endorsed on the order are not such payments as will prevent the bar of the statute; they are but credits given by the collector for the taxes due from the holder of the order, and as such do not operate as an acknowledgment of the debt by the defendant. The effect of the corporate seal is usually to attest the genuine character of the instrument to which it is attached, and does not convert a borough order into a specialty ; and does not hinder the plea of the statute in the present suit.
    Answer. “ The corporate seal appearing on the paper, and proved to be such, makes the paper a specialty, and the statute does not bar it. The payments or credits on the order would not take the claim out of the statute.”
    4, The minutes of the corporation do not show that the corporate authorities specifically directed the granting of the order now in suit, to the plaintiff; nor is there any evidence of an authority lo grant an interest-bearing order, to any one; and if the jury believe that plaintiff obtained said order through the unauthorized act of the corporation clerk, then the verdict should be for the defendants.
    Answer. “ There is sufficient in the minutes of the council to show the orders or bonds were directed to be issued to the lenders of bounty money. It is fair to presume that all things were rightly done.”
    The court, inter alia, charged:—

      “ Should you find from the evidence, that the authorities did, in fact," pay bounty to volunteers in 1864 and 1865, and that this plaintiff did lend this borough'money for that purpose, either by paying it directly to volunteers, upon the agreement and understanding with the authorities that he was to be reimbursed by them, or loaned it ■ directly to them for bounty purposés; and that he demanded payment from Isenberg while treasurer, you may find a verdict for plaintiff. We, however, reserve the following question, to wit: Can a suit be maintained directly upon the instrument given in this case; and has this paper any greater legal significance than the ordinary form of such orders.”
    The verdict was for the plaintiff, and the court subsequently deciding the reserved questions in the affirmative, judgment was entered thereon.
    Defendant took this writ, assigning for error, among others, the answers of the court to the foregoing points, and the entry of judgment. • .

      Charles A. Barnett and Louis E. Atkinson, for plaintiff in error.

      —This order is not actionable : Warner v. Commonwealth, 1 Barr 154; Dyer v. Covington Township, 7 Harris 200; Allison v. Juniata County, 14 Wright 351; First National Bank v. Rush School District, 2 W. N. C. 471. The order is not a contract and the seal could not make it a specialty, and therefore it is barred by the Statute of Limitations.

      JEzra D. Parker, for defendant in error.
    June 11th 1877,
   The judgment of the Supreme Court was entered

Per Curiam.

It has been held repeatedly, and in one case very recently, that an ordinary county warrant drawn on the treasurer •in payment of a debt, is not per se a proper subject of an action as upon a promise in writing. That it may enter into the evidence in an action to recover a debt may well be, but it is not an order or draft which itself may become the foundation of the action. But in this case the paper, though in form a warrant to authorize a payment and to be held as a voucher, contains other matters which establish it to be a contract and evidence of a debt. It sets forth that it is for money lent for bounties, and is with interest and is under the borough seal and was issued under the express authority of a resolution of the council, which was passed to secure the payment of moneys lent for bounty purposes. It therefore has all the essential elements of a contract to refund money lent, which are not destroyed because it also partakes of the character of a voucher when payment is made upon it. . It is -said the insertion of interest was the unauthorized act of the clerk. But this is not a legal presumption, notwithstanding the resolution does not in express terms say the bonds or orders issued are to be with interest. Nothing is better settled by decision than that money lent bears interest. It is a conclusion of law from the fact of the loan: Dilworth v. Sinderling, 1 Binn. 488; Bapelie v. Emory, 1 Dali. 349. Upon the whole we cannot perceive there is substantial error in this record. Judgment affirmed.