text:
    Douglas’s Appeal. Landis’s Estate.
    3. Partial accounts of a guardian, filed during minority, are not conclusive upon a ward, even though they go through the form of a settlement and confirmation.
    2. When a step-father takes his step-child to live with him as one of his family, he is not entitled to be repaid for expenditures made for her during her minority.
    3. B. took his step-daughter, L., under two years of age, to live with him as one of his family, where she lived until her majority; a former guardian, whose security B. was, in settling his account claimed a credit for payment to B. for L.’s support; and B., when appointed guardian of L., asked credit for certain yearly payments as the cost of her maintenance: Held (affirming the court below), that B., as guardian, was not entitled to compensation for maintaining L. during her minority.
    May 24tb 1876.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    This was an appeal from the Orphans’ Court of Franklin county: Of May Term 1876, No. 105.
    It was taken from a decree of the court below confirming the report of the auditor appointed to audit the final account of James H. Bratten, deceased, guardian of Mary Perry (formerly Landis), as filed by his administrator c. t. a., J. W. Douglas.
    The case was this:—
    In the end of 1849, Jacob Landis, of York county, died intestate, leaving to survive him his widow, Catharine Landis, and a daughter, Mary, then but a few weeks old. In April 1851, the Orphans’ Court of York county appointed Jacob Ehrhart guardian of Mary Landis. In June 1851, when the daughter was about eighteen months old, Catharine Landis married James H. Bratten, and from that time until Bratten’s death, in 1868, Mary Landis lived with her mother and step-father at Chambersburg, in Franklin county. As to the circumstances under which she lived with her step-father, Mrs. Susan Frey testified as follows:—
    “ Mr. Bratten was one day in our house and talking to Mr. Frey; he said in my presence, in reply to Mr. Frey’s saying to him about marrying a widow with a child, that ‘ that made no difference to him, that he intended-to raise that child as his own, that he had promised his wife before he married her that as long as he had bread, she should have it — that he would care for and support the child as if it was his own.’ He did do so; the child was in his family the same as his own children; when he bought for them, he bought for her just the same; if he gave to his own daughters for spending money or for church, he gave to her also; she called him ‘ father,’ and he called her ‘ daughter,’ or ‘ Mary.’ She was a young lady when he died; she did a good deal of work in the family, more I think, than any of them; she nursed the children, and when I was there, I saw her cooking just the same as his own children. The children were all educated at the common schools here in town, and went to the same schools as my own children; he never sent her away from town to school.”
    In 1856, Ehrhart was removed from the guardianship by a decree of the Orphans’ Court of York county, and Hezekiah Easton a2Dpointed in his place. Easton entered the necessary security, with James H. Bratten as his surety. In 1860, Easton being desirous of withdrawing from the trust, filed his account in the proper office in Franklin county, in which he charged himself with $600, under date of April 1st 1857, as “ money received when appointed,” and claimed credit for the following :—
    April 1st 1857 — Paid Jas. H. Bratten for keeping said Mary Landis near four years, ..... $100.00
    Also, the interest on said money, it being (Jan. 17th 1860) five hundred dollars, which amounted to . . . 70.00
    Allowance for guardian,......20.00
    Mortgage in favor of said Mary Landis, coming from James
    H. Bratten, entered in Mortgage Book E, page 160,. 410.00
    $600.00
    Register, ......... 3.50
    Clerk, ......... 2.50
    This account was. duly confirmed by the Orphans’ Court of that county. Easton was thereupon discharged from the trust at his own request, and James H. Bratten was appointed guardian in his place. On October 1st 1867, Bratten filed a partial account in the Register’s office of Franklin county, as follows:—
    March 13th 1860 — Money received from her former guar-
    dian, Jacob Ehrhart, ...... $500.00
    Interest to the present, ...... 220.00
    $720.00
    In this account he claimed credit for Fees paid G. W. Toms, register, .... 3.50
    Fees paid H. Easton,...... . 20.00
    Supporting, maintaining, clothing and educating said ward
    for eight years, at $100 per annum, .... 800.00
    $823.50
    All the funds are consumed and there is no further estate.
    T. M. M. (paid $1.00). Fees on account paid, . . 4.00

      This account was in due' time confirmed by the Orphans’ Court and a balance decreed in favor of the accountant of $107.50. Within a.year, and on January 3d 1868, Bratten died leaving a will, of which J. W. Douglas was subsequently appointed administrator de bonis non cum testamento annexo. On September 8th 1875, after citation by Mary Landis, who had then reached her majority and become Mary Perry, Douglas filed the following guardian’s account of the estate of Mary Landis.
    June 1st 1875, the administrator of said guardian claims the following credits:—
    “ To balance found due the guardian on his account filed
    August 7th 1867,......$103.50
    Interest from August 7th 1867 to June 1st 1875, . 49.68
    To supporting, maintaining, clothing and educating said ward, from August 7th 1867 to January 3d 1868, the day of James H. Bratten’s death, at the rate of one hundred dollars per year, ..... 41.70
    Interest from January 3d 1868 to June 1st 1875, . 17.50
    $212.38
    Accountant’s fees, ..... $20.00
    Advertising and register’s fees, . . 4.90
    Clerk’s fees,......'2.00
    The accountant suggests that no estate of the ward ever came into the hands of the accountant.”
    Counsel for Mrs. Perry filed six exceptions to this account and upon motion the court appointed an auditor “to examine the exceptions filed to the said account and to state a full and completo account according to law of the management of the said ward’s estate.’'’
    The first exception was as to the omission of the items of the partial account from the final account, and the other five exceptions raised the question as to whether the minor was chargeable by Bratten, her guardian, for maintenance during her minority and while an inmate of his family.
    The above facts appeared in evidence before the auditor.
    On the first point the auditor reported that the account should be restated so as to include the earlier items. As to the payment made by the former guardian, Easton, to Bratten, for the minor’s maintenance, as set forth above in Easton’s account, the auditor was of opinion that in these proceedings and at so late a day, in the face of his confirmed account, they could not be disturbed. As to the credits of $800 and $41.70, the auditor reported that they should bo stricken out, on the ground that Bratten was legally bound to maintain his step-daughter, under the circumstances, and could not charge her in his account with her maintenance and support. After making some unimportant changes in the account, the auditor reported a restated account, as follows:—
    The accountant should be and is now charged as follows:—
    March 13th 1860 — To cash received from H. Easton, guardian, . ........ $500.00
    Interest on same from March 13th 1860 to March 13th 1876,......... 480.00
    $980.00
    The accountant is credited as follows:—
    March 13th 1860, cash paid H. Easton, allow-

      ance, ....... $20.00
    March 13th 1860, cash paid Gr. W. Toms, . 3.50
    August 7th 1867, cash paid T. M. Mahon, clerk’s
    fees,.......1.00
    Interest on $23.50 to March 13th 1876, . 22.56
    Interest on $1 to March 13th 1876, . . .52
    Accountant’s fees, ...... 20.00
    Advertising and register’s fees, . . . 4.90
    Clerk’s fees, ......2.00
    Douglas excepted to the auditor’s report, (1) and (2), on the ground that the auditor had disallowed the credit claimed by the guardian for the minor’s support; (3) that the auditor charged Bratten with $500 as principal, whereas Easton’s confirmed account shows that Bratten received but $410, less certain costs; (4) and (5) that the auditor erred in opening Easton’s account and Bratten’s first account.
    The court dismissed the exceptions and confirmed the report of the auditor.
    Douglas took this appeal and assigned for error that the court erred in not sustaining the exceptions of appellant and in confirming the auditor’s report, and in not confirming the account of James H. Bratten, guardian of Mary Landis, now Mary Perry, as stated by J. W. Douglas, administrator of the estate of Jas. H. Bratten, deceased.

      J. W. Douglas, p p. —
    Bratten always demanded, and in part received from Easton, compensation for the minor’s support, and cannot therefore be presumed to have assumed the position of a parent to her.

      Bratten’s account was practically a final account, upon the confirmation of which the court would at his request have discharged him. After a lapse of eight years, when Bratten’s estate is almost distributed, this court will not disturb it: McLellan’s Appeal, 26 P. F. Smith 232; Rhoads’s Appeal, 3 Wright 189.

      McCauley <f- Orr and J. Kell, for Mary Landis (then Perry).—
    Bratten was bound to maintain his step-daughter and could not charge her for her support: Lantz v. Frey, 2 Harris 202; Ruckman’s Appeal, 11 P. F. Smith 253; Duffey v. Duffey, 8 Wright 402. His account was not a final account and did not conclude his ward: Bowman v. Herr, 1 Penna. R. 282 ; McCormick v. Joyce, 7 Barr 248; Yeager’s Appeal, 10 Casey 173; Foltz’s Appeal, 5 P. F. Smith 428. The representatives of Bratten improperly refused to account for the minor’s estate and the costs should be put upon them.
   Mr. Justice Sharswood

delivered the opinion of the court, May 29th 1876.

Upon the main question presented upon the auditor’s report and the exceptions thereto there are no merits in the appellant’s case. It has neither law nor justice on its side. The opinion of the court in Duffey v. Duffey, 8 Wright 402, is direct to the point — that when a step-father takes his step-child to reside with him as one of his family, while the one cannot claim for services the other is precluded from compensation for expenditures. The facts reported by the auditor and fully sustained by the evidence make this a very strong case in illustration of the justice of that ruling. The only fact relied on to meet it — that the former guardian was allowed in his account a small sum paid to the step-father — is a very insignificant one, when we consider that he was the surety for that guardian, and was his successor in the trust. In the settlement of the account of Easton, before his discharge and the appointment of Bratten to succeed him the wise provision of the 11th section of the Act of March 1832, Pamph. L. 192, “ that in every such case it shall be the duty of the court to appoint some suitable person to appear and act for the ward in respect of the settlement of such account,” seems to-have been entirely overlooked. We have not the question of the conclusiveness of that settlement upon the ward now before us. No exception was taken on the subject of the allowance of the f 100, for which Easton had credit in his settlement as paid to Bratten. The account of the latter settled during the minority of the ward, and hot accompanied or followed thereupon by his discharge, stands upon an entirely different footing. All partial accounts of guardians during the minority of the ward, whether filed in the Register’s office or in the office of the clerk of the Orphans’ Court, are not for settlement and confirmation, and even if they go through the forms of a settlement and confirmation are not conclusive upon the ward. Yeager’s Appeal, 10 Casey 173. There was here no one to represent her and take care of her interest. The court cannot be expected to do so. They have not knowledge of the necessary facts to enable them to adjudicate. In the present instance non constat that the court were made acquainted with the relation between the guardian and ward. The names were different and there was nothing to indicate that any such relation existed. It is clear that the decision in Rhoads’s Appeal, 3 Wright 186, has no application, but only to cases where the account is properly and legally presented for settlement and confirmation. The learned court below were therefore entirely right in dismissing the exception of the appellant and confirming the report of the auditor.

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


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    Thompson versus McElarney.
    1. A license for the enjoyment of certain privileges in land obtained under an executed verbal contract founded upon a sufficient consideration, is irrevocable by the licensor or those claiming title in the land under him.
    2. T., who was preparing to build a saw-mill on a site selected by himself, at the request of B. changed his plan and agreed to build his mill at a point chosen by B., and agreed at the same time to give B. possession of a strip of land required to straighten B.’s lines (upon which B. wished also to move a small house belonging to him), and to saw B.’s lumber at a price below the market rates ; B., in return, agreed to give T. the right to build a tramway across his (B.’s) land, and to throw the waste from the mill into a stream which ran through B.’s land. This contract between them was verbal; it was fully executed by both parties. B. afterwards died. Some years afterwards, McE., the vendee of B.’s heirs, brought an action against T. for damages caused by the deposit of waste from B.’s mill thrown into the stream. Held, that the right acquired by B. was a license and not an easement: Held also (reversing the court below), that the license in B. to throw the waste from the mill into the stream was irrevocable.
    May 24th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas of Centre county: Of May Term 1876, No. 74.
    Case by Terence McElarney against John J. Thompson, to recover damages for the flooding and washing of his land and the deposit of sawdust thereon. The facts appear in the opinion of the court. The agreement therein mentioned between Thompson and Beckwith was verbal. After verdict and judgment for the plaintiff below, McElarney, the defendant below, took this writ of error, assigning for error that part of the charge given in the opinion of the court.

      McAllister and Beaver, for plaintiff in error,
    cited the cases given in the opinion of the court.

      Alexander and Bower (with them JD. B. Fortney), fob defendant in error. —
    The license given by Beckwith was revoked by his death: Bridges v. Purcell, 1 Dev. & B. 492; Prince v. Case, 10 Conn. 375; Foot v. N. H. & N. Co., 23 Id. 214. The notice given to Thompson by McElarney at the commencement of the injuries complained of was a revocation of the license, if not revoked before: Mumford v. Whitney, 15 Wend. 381; Dark v. Johnston, 5 P. F. Smith 164. The plaintiff’s cases may all be distinguished, as they were all cases where money was expended upon the faith of the license.
   Mr. Justice Woodward

delivered the opinion of the court, October 9th 1876.

In the year 1862, John J. Thompson, the defendant below, was preparing to build a saw-mill on his land along Laurel run in Bald Eagle Valley, and had selected the site for its erection. Clement Beckwith, then the owner of the property now belonging to the plaintiff below, had laid out the village of Port Matilda, and urged the defendant to build the mill in the neighborhood of this village, at a point lower down the run than that originally selected. The defendant objected on the ground that his access to the railroad would be made difficult, and that he would be unable to dispose of the waste resulting from the manufacture of lumber. These objections were removed by an agreement finally made between the parties stipulating that the defendant should erect the mill near Port Matilda, should surrender a strip of land which Beckwith wanted to enable him to straighten his lines and to remove a small house he owned, and should saw Beckwith’s lumber at a dollar a thousand less than the current price; in consideration of which Beckwith agreed to give the defendant the right of way for a tramway to the railroad, and' the privilege of casting his sawdust into the stream which flowed for some distance over Beckwith’s property. This agreement was carried into effect. The mill was erected by the defendant, the tramway built on Beckwith’s land to the railroad, and the lumber of Beckwith was thenceforth sawed at the stipulated price. Beckwith took possession of the strip of land surrendered by the defendant and moved his house upon it. Throughout his lifetime he acquiesced in the deposit by the defendant of the sawdust and refuse from the mill, and took precautions to keep the stream clear by cutting away the drift caused by the accumulation of logs and refuse lumber in Bald Eagle creek along his land below the mouth of Laurel run, a- tributary of tbe creek. After the death of Beck-with, one of his sons sold the land on which the drift had accumulated to the plaintiff, who subsequently took no steps to remove the obstructions. Sawdust was floated into the crevices of the drift, forming a dam in the stream, and during a flood the land of the plaintiff was overflowed, and sawdust was carried and deposited upon its surface.* To recover damages for this injury, the plaintiff, denying the right of the defendant to cast the refuse of the mill into the stream, brought this action.

No essential facts relating to the original agreement or the acts of the parties under it were in dispute. The question submitted to the jury was “whether the injuries alleged to have been done to the land of the plaintiff were caused by the sawdust having been thrown into the stream by the defendant. If they were,” the court charged, “then the plaintiff is entitled to be compensated in damages for the injuries sustained.” The first assignment of error has not been pressed. The second error is assigned to that portion of the charge in which the court said: “ If the right acquired by Thompson from Clement Beckwith was a license, the death of Beckwith, which occurred prior to the commission of the acts complained of by the plaintiff, would have revoked it, and the right of Thompson to throw the sawdust into the stream would have been terminated. If it was an easement, it could not be created in any other way than by grant' or prescription. It is well settled that an easement cannot exist in parol, and as there has been no uninterrupted and exclusive user and enjoyment of said easement for a period of twenty-one years to give title by prescription, we are of the opinion that the defendant’s second ground of defence cannot prevail.” The jury were not permitted to ascertain what the exact character of the agreement between Beckwith and the defendant was. That was unnecessary if the legal view expressed by the court was sound throughout. But if they were in error in ruling that the death of Beckwith extinguished the defendant’s rights, it may be that the jury should have been instructed to decide whether the agreement had created an actual license, or had amounted only to a parol grant of an easement. There is nothing, however, in the exigencies of the case to require a present decision of the question. ' Treating the transaction as having conferred on the defendant a simple incorporeal right, and as having, for his benefit, subjected Beckwith’s land to a mere servitude, the ruling of the court was possibly right. Hess v. McCauley, 3 P. F. Smith 206, at least is an authority for the doctrine, that the grant of an easement, where no principle of estoppel is applicable, cannot rest in parol; that the grant is revocable even where a consideration has been paid, and that the remedy for a breach of the contract is by action. The material inquiry now is as to the accuracy of the instruction that, in any event, Beck-with’s death extinguished the defendant’s rights.

• The admitted facts clearly show that a contract upon sufficient consideration was made between these parties, and that the contract was executed. The defendant built his mill at the point suggested by Beckwith. He surrendered the strip of land stipulated for, and Beckwith took possession of it and moved his house upon it. The agreement by the defendant to saw Beckwith’s lumber at a minimum price, and the agreement for the right of way for the tramway, were carried out. And the right of the defendant to deposit sawdust in Laurel run, to be carried thence into Bald Eagle creek, was exercised by the defendant and recognised by Beckwith as long as he lived. The only interests affected by this contract were those of Beckwith and the defendant. Beckwith had the rights of a riparian owner in the water flowing through this land. He agreed to surrender and transfer to the defendant a portion of those rights on stipulated conditions. The defendant changed his plans, and made the necessary expenditures in the erection of his mill and building his tramway to the railroad on his faith in the agreement of Beck-with, that he should have the undisturbed use of the water of the stream for a purpose for which both parties knew that use to be indispensable. Nothing appears to indicate that the mill was designed to be other than a permanent structure, and if it was to be permanent, it would seem to follow that the agreement for the disposition of the lumber refuse was to be perpetual. While technically it may be that the nature of the transaction was one for the ascertainment of a jury, it is not doubted that the facts presented by the record established a license and not an easement.

As a license, the authorities on the subject prove that it was irrevocable. In Le Fevre v. Le Fevre, 4 S. & R. 241, where a deed had been executed, conveying a right to a watercourse through the granted land by courses and distances, it was decided that a verbal agreement entered into between the parties for their mutual accommodation, altering the route of the watercourse, could be enforced provided the agreement had been carried into effect. In Rerick v. Kern, 14 S. & R. 267, it was held, that if a parol license be given, without consideration, to use the water of a stream for a sawmill, in consequence of which the grantee goes to the expense of erecting a mill, the license cannot be revoked at the pleasure of the grantor; and if he divert the water to the injury of the grantee, the latter may maintain an action against him. In delivering the opinion in that case, Judge Hibson said: “A right under a license, when not specially restricted, is commensurate with the thing of which the license is an accessory. Permission to use water for a mill, or anything else that was viewed as a permanent erection, will be of unlimited duration, and survive the erection itself, if it should be destroyed or fall into a state of dilapidation. Having had in view an unlimited enjoyment of the privilege, the grantee has purchased by the expenditure of money a right indefinite in point of duration, which cannot he forfeited for non-user, unless for a period sufficient to raise the presumption of a release.” Both these cases prove that the use of the water of a stream may be made the subject of a license by agreement, and in neither of them were the purpose and method of the use more directly indicated than they are indicated here. The rule of Le Fevre v. Le Fevre and Rerick v. Kern was followed in Swartz v. Swartz, 4 Barr 353, and in Ebner v. Stichter, 7 Harris 19. In the course of the opinion in Swartz v. Swartz, it was said that the principle of Rerick v. Kern was, that the revocation of the license would be a fraud, and that to prevent it, a chancellor would turn the owner of the soil into a trustee ex maleficio. Huff v. McCauley, 3 P. F. Smith 206, was decided on its peculiar facts. The judgment was affirmed on the ground that the verdict had established either that the agreement alleged had not been made or that there had been no expenditure under it.

The same rule has been long, and it is believed uniformly, recognised in England. It was held in Taylor v. Waters, 7 Taunton 374, that a beneficial license to be exercised upon land may be granted without deed and without writing; and that a license to be exercised upon land for twenty-one years, granted for a valuable consideration, and acted upon, cannot be countermanded. The judge who delivered the opinion referred to Ward v. Lake, Sayer 3, as deciding that a license to stack coals on defendant’s close for seven years cannot be revoked at the end of three. The case of Liggins v. Inge, 7 Bing. 682, in its principles strongly resembles this. The plaintiff’s father, by oral license, permitted the defendants to lower the bank of a river, and make a weir above the plaintiff’s mill, whereby less water than before flowed to the mill. It was held, that plaintiff could not sue the defendants for continuing the weir. “We consider the license,” said Tin dal, C. J., in entering the judgment, “ to be simply an acknowledgment, on the part of the plaintiff’s father, that he wanted the water no longer for the purposes of his mill, and that he gave back again and yielded up, so far as he was concerned, that quantity of water which found its way over the weir which he then consented should be erected by the defendants. And we think after he has once clearly signified such relinquishment, whether by words or acts, and suffered other persons to act on the faith of such relinquishment, and to incur expense in doing the very act to which his consent was given, it is too late then to retract such consent, or to .throw on those other persons the burden of restoring matters to their former state and condition.” He said further: “ This is not a license to do acts which consist in repetition, as to walk in a park, to use a carriage-way, to fish in the waters of another, or the like; which license, if countermanded, the party is put in the same situation as he was before it was granted; but this is a license to construct a work which is attended with expense to the party using the license; so that after the same is countermanded, the party to whom it was granted may sustain a heavy loss. It is a license to do something that, in its nature, seems intended to be permanent and continuing.” The cases of Winter v. Brockwell, 8 East 308, Taylor v. Waters, supra, and Hewlins v. Shippam, 5 B. & C. 221, were referred to as decisive authorities in support of the judgment.

The ground was taken by the plaintiff’s counsel at the argument that nothing was done by the defendant on the faith of the agree-, ment, and that the rule of the cases quoted could therefore have no application. It was said that “ Thompson proposed to build the mill at all events, and did build on his own land. The mill could be enjoyed as well and be of as much use to him at one place as at the other.” That is hardly so, for the change caused the very embarrassment in disposing of the mill waste against which it was the object of the agreement to provide. Suppose a man having selected a site for a building, changes it .and builds his house adjoining that of a neighbor at the latter’s invitation. In doing this he closes up the windows on one side of the neighbor’s house. Is it possible that at the neighbor’s death his heir or alienee may enforce the destruction of the builder’s house by setting up the doctrine of ancient lights ? Or suppose the offered use of a right of way were the-motive for the change. Could the neighbor’s heir or alienee oust the builder from the enjoyment of the right because he possessed by the agreement only an easement resting in parol grant ? In reference to the argument, it is enough to say that the defendant changed the location of his mill, and placed it where he did not want it, at the persistent instance of Beckwith; that his objections to the change were founded on the' inconvenience of access to the railroad from the new site, and the difficulty of disposing of the sawdust; and that the use of the land for the tramway, and the right to deposit the sawdust in thé stream offered by Beckwith, were the motives that induced him to consent. The same reason that would justify the revocation of the license to use the water, would justify the revocation of the lidense to maintain the tramway. The entire agreement has been executed, and every advantage he sought in making it having been gained by Beckwith, the rights derived by the defendant from it became absolute and irrevocable.

Judgment reversed and venire de novo awarded.


author: Mr. Justice Paxson

text:
    Rhoads versus The Hoernerstown Building and Savings Association.
    1. The Act of October 13th 1840 provided for the incorporation of literary, charitable,' religious and beneficial societies, fire engine and hose companies. The Act of April 22d 1850 extended the Act of 1840 to mutual savings, land and building associations, but confined its operations to the counties of Philadelphia, Schuylkill and Berks. By the Act of May 7th 1855, the Act of 1850 was extended to Lehigh, Northampton, and Dauphin counties, and by subsequent acts to other counties of the state. The Act of April 12th 1859, after referring in the preamble to the Act of 1850 and its supplements and providing in its eighth section that all charters granted under these acts should be valid, and that the premiums paid by mutual savings fund, loan and building associations should not be deemed usurious, made a general provision for the incorporation of these associations. Held, that the general Act of 1859 repealed the local Act of 1850 and its supplements, and that thereafter these associations must be incorporated under the provisions of the general law.
    2. Held,, further, that a building and savings association incorporated in 1869 by the Court of Common Pleas of Dauphin county upon a petition signed by a less number of persons than required by the.Act of 1859, and having other provisions inconsistent with those conferred by that act, cannot assume to have the powers and privileges of a building association under the Act of 1850 and its supplements and claim that it is protected by the eighth section of the Act of 1859, and therefore when said association sued out a writ of scire facias on a mortgage given by a shareholder to secure a loan made by the corporation to the former who had ceased to pay interest and dues, it could derive no support from the Act of 1859 and could only recover the amount of money actually loaned with legal interest.
    May 25th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Common Pleas of Dauphin county: Of May Term 1876, No. 103.
    This was a scire facias on a mortgage wherein The Hoernerstown Building and Savings Association was plaintiff, and Frederick E. Rhoads, defendant.
    On. the 24th of March 1869, Daniel Schaffner, Jacob Fackler and Simon R. Rhoads petitioned the Court of Common Pleas of Dauphin county for the charter of the company plaintiff and upon the 27 th of April 1869, the court made a decree, “that the persons who have signed the within application and their successors shall, according to the articles and conditions within set forth and contained, become a corporation or body politic.”
    By this charter the corporation was to be known as the Hoernerstown Building and Savings Association, “having for its object the accumulation of a fund, by the savings of the members thereof, sufficient to enable every stockholder to invest his earnings safely and speedily, and to purchase real estate or to invest the same as it may be deemed by him or her most profitable.” No limitation was fixed to the existence of the corporation.
    The portions of the charter essential to a proper understanding of the question involved in this ease, and referred to in the opinion of.the court as inconsistent with the Act of 1859, are as follows:—
    “Art. II. Members and Stockholders. — Sec. 8. Each person becoming a shareholder of the stock of this association, shall pay the sum of twenty-five cents as an initiation fee, for each and every share he and she subscribes, and shall afterwards, in each and every- calendar month, pay to the treasurer the sum of one dollar on each and every share, during the whole period through which it shall continue. As soon as the funds of the society shall have accumulated, so as to divide to each and every share the sum of two hundred dollars, or property to that amount, the association shall then wind up, and distribute its funds to the shareholders.
    “ Sec. 4. In case any stockholder shall neglect or refuse to pay his or her monthly dues and interest, as often as the same shall be .payable, each and every shareholder-* so neglecting or refusing shall forfeit and pay the additional sum of ten cents on each share for each and every such monthly refusal or neglect, to be charged with the monthly dues; and in case he or she persists in such refusal for a period of six consecutive months, such shareholder’s name shall be stricken from the list, and - he or she shall be entitled to receive the money he or she has actually paid in, deducting therefrom the fines he or she owes, and such proportion of losses the association may, up to.that period, have sustained — such loss to be taxed and ascertained by the treasurer and secretary. No interest shall be allowed to such delinquent and expelled stockholder.
    “ Sec. 5. Any stockholder to whom one or more loans shall have been granted, neglecting or refusing to pay the monthly interest accruing thereon, as is hereinafter directed, and continuing so delinquent for the period aforesaid, shall be made to pay back the loan or loans so granted to him or her, deducting therefrom such payment as he or she may have made on his or her share or shares, and the fines charged against him or her, together with the proportion of losses sustained and ascertained as aforesaid, not allowing him or her any interest on the money by him or her paid in: Provided, however, That any shareholder wishing to withdraw from the association shall be allowed to do so on gpod and sufiicient cause shown, 'of which the board of directors shall be the judges, provided such withdrawal shall not operate to the loss or injury of the association : And provided further, That on the death or removal to a distance of any shareholders, such persons shall be entitled to receive, after one month’s notice, the full value of the money they have paid in, with six per cent, interest, first deducting their pro ■rata share of expenses.”
    “Art. IV. Loans. — Sec. 1. Each shareholder, for each and every share he or she may hold in this association, shall be entitled to a loan of two' hundred dollars from the funds of the society, so soon as the funds shall be sufiicient for that purpose.

      “ Sec. 2. Whenever the funds of the treasurer will warrant, there shall be one or more shares loaned to the highest bidders, but in no case shall the premiums offered be less than ten dollars on each and every share loaned.
    “ Sec. 3. The directors shall be empowered to purchase ground as they may think prudent for the association, which may be offered to the shareholders for their share; and in case such property cannot be so applied, it shall be rented or otherwise disposed of to advantage: Provided, however, That one-half the monthly receipts shall be offered to loan to such shareholders as may wish to make a loan, if any there be.

      “ Sect. 5. The amount of premium at whicheach loan was granted to the shareholders shall, in all cases, be deducted from the loan, and such borrower shall moreover secure such loan to the association, by bond and mortgage, and a policy of insurance against fire, or by the assignment of stock of this association, sufficient to secure the loan. Of the sufficiency of such securities the directors shall in all cases be satisfied, and in case such satisfactory security can in any instance not be given, such loan shall not be granted, but the interest shall nevertheless be exacted; and the borrower be made to pay it for one month, in the nature of a penalty.
    “ Sect. 7. Stockholders who have obtained loans from the capital of the association shall pay to the treasurer every month one-half per cent, interest for the same. Any stockholder paying the monthly instalments on his stock for six months or a longer period in advance, shall be credited with the amount to be paid in advance; but no interest for any sum or amounts so paid shall be allowed to the stockholder.”
    The corporation duly organized under the provisions of this charter and commenced business.
    The mortgage on which the scire facias in this suit issued was made by the defendant, who was a shareholder, on the 28th of February 1870, to the association, to secure the payment of a bond of $1000, which conditioned that the mortgagor should pay monthly to the association and until it ceased to exist, one dollar on each share of stock he held, interest at the rate of one half per centum on the sum of $1000 of the money loaned to him, ,anc[that he should pay all fines to which he might become liable under the constitution and all by-laws of the association, and in case of default of monthly payments of one dollar or of interest on the sum mentioned at the times provided, then the association was authorized to collect forthwith the $1000 and interest thereon by execution or other means.
    Rhoads ceased paying both interest and dues in February 1873, and the association claiming the powers and privileges of a building association under the Act of 1859, commenced these proceedings to recover from him $809.90, the amount alleged to be due upon the mortgage.

      The defendant resisted, contending that the, association was not a 'building association under the Act of 1859, and not entitled to the powers conferred therein, and that it could only recover the money ■■actually'loaned with interest. . , -..
    The court below (Henderson, A. L. J.) charged the jury:—
    “ The Hoernerstown Building and Savings Association was incorporated April 27th 1869, by the Court of Common Pleas of Dauphin county. Is it a corporation under the Act of 1859 ? It is earnestly contended on the part of the defendant that the requirements of this act have not been complied with, and that the charter is not under its provisions. The first section of the act declares ‘ That at any time when ten or more persons may desire to form a mutual savings fund, loan or building association.’ It appears in the present case that the decree is made and the charter granted upon an application signed by only three persons. We do not propose to go behind the decree of the court, but we may look into it and the charter in order to ascertain the privileges and immunities of the association and the rights of its members.
    “ This however is a question of little practical importance in this ■ case. The court had ample power under the Act of April 22d 1850, extended to Dauphin county by Act. of May 7th 1855, to grant the charter upon an application, as prescribed by the 13th section of the Act of October 13th 1840. The 8th section of the Act of 1859 covers this case. The loan having been made subsequently to the passage of that act, the law can in no sense be open to the charge of mere ‘arbitrary legislative interpretation.’ In its application it is not retroactive.”
    The verdict was for the plaintiff for $615.96, and judgment was entered upon the verdict.
    Defendant took this writ and assigned for error, inter alia, the foregoing portion of the charge of the court, which is the only question that enters into the decision of this court.

      Fleming $ Me Carr ell, for plaintiff in error. —
    The association is not a.building association under the Act of 1859. No reference is made to the Act of 1859 in petition for charter, decree of incorporation, or charter itself. To possess the powers claimed it must have been affirmatively shown therein. The.requisite number of persons under the Act of 1859 did not join in the petition; only three joined here; that Act requires ten or more. The intention of the Act of 1859 was to group together and re-enact all the material provisions of the Act of 1850 and its supplements. The purpose of the 8th sect, of Act of 1859 was to confer upon all associations previously incorporated under Act of 1850 and supplements, the same privileges which could be conferred on those incorporated afterwards under Act of 1859. It was never contemplated that after Act of 1859 any associations should be incorporated under Act of 1850 and supplements. The Act of 1859 was a repeal of thé Act' of 1850 and supplements, saving the validity of their charters and securing to them the same powers as associations under Act of 1859. A subsequent statute, revising the whole subject-matter of a former one, although it contains no express words to that effect, operates to repeal the former: Johnston’s Estate, 9 Casey 511; Commonwealth v. Cromly, 1 Ashmead 181; Bartlet v. King, 12 Mass. 545. So where the prior enactment is local and new one general in its operation: Nusser v. Commonwealth, 1 Casey 126. Acts which grant a right conditioned on different things, are clearly inconsistent: Grwinner v. Lehigh Railroad Co., 5 P. F. Smith 126. The rights of shareholders under these charters and that under Act of 1859 are inconsistent and entirely different.

      Gilbert McPherson, for defendant in error. —
    There is no requirement of law that all the applicants for a charter shall sign their names to a written petition. The manner of their application is left to the discretion of the court, and the decree of the court is conclusive that all matters necessary to give it jurisdiction were done. It is not a subject of inquiry here whether a sufficient number made application for the charter. Even if this corporation has powers inconsistent with those conferred by the Act of 1859, and they have never been exercised, courts will not try to invalidate franchises lawfully granted because they are coupled with others which a court might possibly not have power to confer. It is not necessary for a charter to repeat all- the parts of a statute which creates it, and therefore why express its duration ? If it obtains the privileges intended by a law it takes them with the limitations prescribed in that law without mentioning them in the charter. ■ The Act of 1859 contains no words of repeal, and repeal by implication is not favored in law. The Act of 1850 is a particular law and applies to only a small portion of the Commonwealth. It is extended by local Act of 1855 to Dauphin county. In absence of repealing clause in Act of 1859 these laws are in’ force : Brown v. Commissioners, 9 Harris 37; Street v. Commonwealth, 6 W. & S. 209; Johnston’s Estate, 9 Casey 511.
   Mr. Justice Paxson

delivered the opinion of the court, October 9th 1876.

The Hoemerstown Building and Savings Association was incor.porated by the Court of Common Pleas of Dauphin county in the the year 1869.- The petition for the charter was signed by three citizens only, and the decree'of the court sets forth that the persons who have signed the application, and their successors, shall, according to the articles and conditions set forth in the application, become a corporation or body politic, &c. The company subsequently commenced business under its charter, and sued out a writ of scire facias upon a mortgage of $1000, given by Frederick E. Rhoads, plaintiff in error, and a member and shareholder of said corporation, to secure a loan of money made to. him by the latter. Mr. Rhoads ceased paying his interest and dues in February 1878, whereupon the •association commenced these proceedings in the court below, and upon the trial claimed the powers and privileges of a building association under the Act of 1859. The sum of $809.90 was demanded as the amount due upon the mortgage. This claim was resisted by the defendant below, upon the ground that the said association was not incorporated under the Act of 1859; was not entitled to exercise the powers specified in said act, and could only recover the amount actually loaned, with interest. The main point in the case, therefore, is the extent of the powers of the association under its charter. The validity of its charter is not questioned; indeed, could not be in this collateral proceeding.

That this association was not incorporated under the Act of 1859 is manifest. Said act (Pamph. L. 544) provides, that when any ten or more persons may desire to form a mutual savings fund, loan or building association, under the provisipns of said act, they shall make application to the Court of Common Pleas, &c. No authority is given to said court to incorporate any number of persons less than ten for such purpose. As before observed, the application for this charter was signed by but three persons, and the decree of the eourt, by its express terms, confers the corporate privileges upon the petitioners and their successors. We will not assume that so experienced a court as the Common Pleas of Dauphin' county intended to confer upon three persons the rights and powers embraced in the Act of 1859. An examination of the charter itself shows that ■ many of its important provisions are inconsistent with the Act of 1859, if not in direct conflict with it.- No limitation upon its own existence is contained in this charter, nor is any such limitation to be found in the decree of the court. The first section of the Act of 1859 declares, “ that no charter granted under or' by virtue of the provisions of this act be for a longer period than twenty years.” Shareholders in this association can withdraw only upon “ good and sufficient cause shown, of which the bpard of directors shall be the judges,” while stockholders in associations under the Act of 1859 have the absolute right to do so by giving thirty days’ notice of his or her intention to withdraw. (Sec. 2.) Again, associations under the Act of 1859 have no power to purchase and hold real estate, unless they have a previous lien upon or interest in it, where they may purchase the same, if necessary, to protect the interests of the association. (Sec. 9.) The directors of this association are “ empowered to purchase ground and erect or build dwellings, or may purchase such property as they may think prudent for the association, which may be offered to the shareholders for their share.” Other and-, striking points of'dissimilarity might be noticed between the powers contained in this charter and those conferred by .the Act of 1859. What has been said is sufficient to show that it was.not granted under said act. The court below appears to have felt the strain of this part of the case, and avoided it by saying: “ This is a question of little practical importance in this case. The court had ample power, under the Act of April 22d 1850, extended to Dauphin county by Act of May 7th 1855, to grant the charter upon an application as prescribed by the 13th section of the Act of October 13th 1840. The 8th section of the Act of 1859 covers this case. The loan having- been made subsequently to the passage of that act, the law can in no sense be open to the charge of mere arbitrary legislative interpretation. In its application it is not retroactive.” If the premises assumed by the court below be right the conclusion is not inaccurate.

Prior to the Act of 1859 our legislation in regard to building associations was mere patchwork. The Act of 13th of October 1840 (Pamph. L. 5) makes no mention of building societies. It refers to associations for literary, charitable and religious purposes, beneficial societies, fire engine or hose companies. The Act of 22d April 1850 (Pamph. L. 550) extended the Act of 1840 to mutual savings funds, land and building associations.” The Act of 1850 was local, being confined to the counties of Philadelphia, Schuylkill and Berks. The Act of May 7th 1855 (Pamph. L. 481) extended it to Lehigh, Northampton and Dauphin. By various other acts not necessary to enumerate, it was extended to some other portions of the state. But it never became a general law. Then came the Act of 12th April 1859 (Pamph. L. 544), referring in its preamble to the Act of 1850 and its supplements ; reciting the fact that said act and its supplements had been extended over several of the counties of the state; that the authority thus conferred had been freely exercised, and by such encouragement, and by allowing members of said associations to adopt such constitutions or articles of association as to them might seem most beneficial, and by allowing parents to sign the constitutions for and on behalf of their minor children, a large and constantly increasing interest has been created, such associations affording to the indigent an opportunity to safely and profitably invest their earnings, thus inducing the people to form habits of economy and self-denial by ' setting apart periodically a portion of their earnings, enabling them to purchase or build their own homes, increasing the number of small real estate owners, and thereby enriching and strengthening the Commonwealth,” &c. The act then proceeds to provide “ that at any time when ten or more persons may desire to form a mutual savings fund, loan or building association * * * they shall make application to the Court of Common Pleas of the proper county,” &c. The 8th sect, makes valid all. charters previously granted under the Act of 1850 and its supplements, and provides that the premiums taken by such companies shall not be deemed usurious. There are no words in the Act of 1859 by which the Act of 1850 was expressly repealed. It is clear, however, that it was intended to supply it. The Act of 1850, as before observed, was local; The Act of 1859 is a general law, extending over the entire state, and legislating upon the same subject. The 8th sect, conferred upon all building associations previously char.tered, all essential rights and powers which' could be given to associations afterwards chartered under the Act of 1859, thus placing all these corporations practically upon the same footing. Surely the legislature could not have intended after thus disposing of the whole subject by a general law, to continue in force the local laws then in existence, and which if left to remain could only lead to confusion. It was clearly the intention of the law-making power that after the passage of the Act of 1859; all applications for charters of building associations should come under its provisions, and should be made by not less than ten persons, else we should have the anomaly of one law requiring such application to be made by not less than ten persons, and another law authorizing it to be made in many portions of the state by any number less than ten. The legislature having by the Act of 1859 revised and passed upon the whole subject, we think the reasonable construction of said act is that the Act of 1850 is repealed by implication, leaving all rights acquired and charters granted under said act to remain as they were previously to the passage of the Act of 1859, excepting in so far as certain additional powers were conferred upon them by said last-named act. It was held in Johnston’s Estate, 9 Casey 511, that “ a subsequent statute, revising the whole subject-matter of a former one, and evidently intended as a substitute for it, although it contains no express words to tjiat effect,, must, in the principles of law,' as well as in reason and common sense, operate to repeal the former.” To the same effect is Bartlet v. King, 12 Mass. 545; King v. Cator, 4 Burr. 2026 ; King v. Davis, 1 Leach’s Cases 306. Says Lowrie, C. J., in Nusser v. Commonwealth, 1 Casey 126, where the prior enactment is local and the new one general in its operation, the maxim (that a subsequent statute is a repeal of all repugnant provisions in a prior one) applies with undiminished force; because the whole includes the several parts, and all local laws establishing one rule for one portion of the community, and a different one for the remaining portion, are inconvenient and of doubtful propriety except where they relate to matters which are local in their nature, and ar'e enacted by the proper municipal authorities of the territory over which they are designed to operate.” In Gwinner v. The Lehigh & Delaware Gap Railroad Co., 5 P. F. Smith 126, it Avas said by Justice Agnew that “ acts Avhich, although in pari materia, grant a right conditioned on different things, are inconsistent, and the inconsistency operates as a repeal.”

We are of opinion that this corporation was not incorporated under the Act of 1859,, and that the Act of Í850 and its supplements were repealed by the passage of the former act. It follows that it cannot derive any support from the Act of 1859, and that in this suit it can only recover the amount of money actually loaned with legal interest. We are not bound to pursue the subject further. The Act of April 12th 1867 (Pamph. Xi. 70) may possibly sustain the charter of this corporation as a savings fund association. No such question is before us and we will not speculate.

Judgment reversed, and a venire facias de novo awarded.


author: Per Curiam. —

text:
    Ervin’s Appeal.
    A decree which restrains a man’s power of disposition over all his real estate, stocks, bonds or other securities, without tracing the money of the plaintiff into their purchase or ownership, and which thus locks up his entire available estate on the ground that he has received the money of another as his agent, cannot be supported by any reasonable exercise of equity powers.
    May 25th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ. Williams, J., absent.
    This case was certified from the Eastern District. ■
    • Appeal, No. 131, of July Term 1875, from the order and decree of the Court of Common Pleas, No. 2, of Philadelphia county, in equity, for a special injunction.
    On the 30th of June 1875, Charles E. Morris, assignee of Henry G. Morris, filed a bill in equity against Alexander Ervin, the Seventh National Bank and the Second National Bank of Philadelphia, which set forth, that on the 29th of April 1875, Henry G. Morris, being largely engaged in the iron business at Southwark Foundry, in Philadelphia, finding he was insolvent, executed a general assignment for -the benefit of his creditors; that Morris commenced business at said foundry in January 1871, and employed Alexander Ervin at a salary of $6000 per annum, as his confidential agent and financial manager; that he had the fullest faith in the business ability and integrity, of Ervin, and trusted him unreservedly with the control and management of the finances of his business and the receipts of moneys; that the private ledger of Morris was kept by Ervin, and the other books by Ervin’s nephew, under his charge; that so great was the confidence of Morris in Ervin that he never personally examined the books as kept by Ervin, nor investigated the condition of the business, but received a statement, from time to time, on balance sheets prepared by Ervin; that, in April 1875, he became insolvent, and an examination of his books showed that in four years and four months he had lost $1,200,000 in the foundry business; that this investigation of the books showed they had been kept in a grossly irregular manner, and disclosed the fact' that Ervin, while acting as financial manager for Morris, had received large sums of money for which he failed to account; that from the account in the private ledger, as kept by Ervin himself, it-- appeared he had fraudulently, at divers times, drawn out of the cash assets of Morris various sums of money, aggregating up to 30th of July 1873 the sum of $80,000; that finding himself so indebted, Ervin, without the knowledge or consent of Morris, fraudulently credited himself, on July 31st 1873, as follows: “July 31st, special pig iron- account. On account of interest to cover notes issued to his order, $100,000;” that said credit was purely fictitious and without consideration or authority from Morris, and was made to conceal large sums due by Ervin to Morris, and which, being illegal and unauthorized, should be disallowed; and that after disallowing this credit the account as kept by Ervin showed that the latter was indebted to Morris $79,740.27; that in the course of business Morris was accustomed to make numerous notes for large sums, and at times drew them to Ervin’s order to have the same discounted; that the books showed that $62,840 of these notes were intrusted to Ervin to negotiate, and that the same were paid by Morris at maturity, although the books failed to show that they were issued, and that Ervin has appropriated the proceeds thereof to his own use and never accounted for the same; that the books of the foundry show that Ervin is indebted to Morris on his private ledger account in the sum of $79,740.27, which, added to the proceeds of the above notes, make an aggregate indebtedness of $142,220.27.
    The bill further set forth that, because of threatened attachments by certain creditors, moneys received by Morris were deposited at the Seventh National Bank in Ervin’s name, and that the bank has declined to give any information as to the character or amount of money so deposited; that Ervin was also in the habit of depositing money of Morris in Ervin’s personal account at the Second National Bank, and that the true condition of the indebtedness of Ervin cannot by discovered without a copy of the latter’s account with the bank, which the officers of the bank decline to give; that Ervin invested large sums of money of Morris in real estate, in securities and in the stock of the Seventh National Bank, all of which he is about to assign and transfer, &c.
    Wherefore the bill prayed that an account be stated between Ervin and Morris, and that Ervin be ordered to pay over the amount found to be due; that he be restrained from transferring, assigning or disposing of any real estate, stocks, bonds or other securities- of which he may be. possessed, until final hearing; that the, several banks be restrained from paying out any moneys in their hands or permitting the transfer of any stock in the name of Ervin, and that all. the defendants be compelled to make full discovery in answer to interrogatories filed and appended to bill.
    Injunction affidavits were annexed to the bill, that of Henry Gr. Morris following closely the averments of the bill.
    A preliminary injunction issued on the 30th of June 1875, and upon the 13th of July 1875 an application was made to continue the preliminary injunction, which was heard upon bill and affidavits, the defendant Ervin in his counter-affidavit admitting that he was employed by Morris as his commercial manager, but that he was not known as his “ confidential agent and financial manager” and never was so constituted; that the duties of his employment were to purchase materials, collect and procure money and arrange details of contracts ; that the business was under the eye of Morris; that the books were kept under his direction and instruction, and were frequently examined by him, .and he was informed of the course of his financial transactions from the accounts and consultations; that all the books were not kept by deponent, but were in the charge of other persons, and not under the control or supervision of deponent ; that the private ledger kept by deponent was the capital and personal account of Morris to which he had constant access, and which he often examined, and to none of the items contained therein did he ever object, until this bill was filed; that many of the items in said account on the debit side are payments to deponent on account of profits realized from certain purchases and sales of pig iron to which deponent was entitled by express agreement with Morris, a memorandum of which was in writing and signed by Morris and a copy of which is annexed; that Morris and deponent had agreed, that for the purposes of settlement under this agreement the profits should be computed, and that the credit of $100,000 was on account of deponent’s share in the profits of this pig iron speculation, and that it was entered with the consent and agreement of Morris ; that in making purchases of iron deponent had become liable, for from $300,000 to $400,000, on account of Morris, $40,000 of which were still outstanding, and for which deponent had received no consideration whatever; that deponent: denies- that the promissory notes were given to him to have discounted as asserted in the affidavit of Morris; that the money placed to deponent’s personal account in the Seventh National Bank was charged to deponent by Morris in deponent’s personal account in Morris’s private ledger; that deponent was the largest stockholder in the Seventh National Bank before he had any connection with the foundry, and that he had never increased the number of the shares he held at that time; that he never had money deposited in the Second National Bank in which Morris had any interest, and that he was not the owner of real estate. Deponent further denies that he was the agent or trustee of Morris or received any of his property as his bailee and that he has any property which belongs to said Morris or is indebted to him, but that on the contrary . Morris is largely indebted to deponent, which indebtedness is likely to be increased by his insolvency, and the liability of deponent as his endorser for his accommodation of notes outstanding.
    The following is the decree of the court below:—
    “ And now, July 13th 1875, this cause having been argued and • considered, it appearing to the court that large sums of money, the property of Henry G. Morris, have come to the hands of defendant, Ervin, as the agent of said Morris, and are still retained by said defendant to the prejudice of plaintiff, assignee of said Henry G. Morris, and the defendant having failed to discover to the court where the said sums are deposited, or in what property or securities the. same are invested or converted, now it is ordered and decreed that the injunction heretofore granted be continued, and the said defendant, Ervin, be restrained from transferring or disposing of any real estate, stocks, bonds or other securities of which he may be possessed; and that the defendant, the Seventh National Bank, be restrained from paying over to said Ervin any moneys standing in his name, or permitting the transfer of any shares of stock standing in his name; and that the defendant, the Second National Bank, be restrained from paying over to the said Ervin any moneys standing to his credit therein.”
    Ervin appealed and assigned this decree for error.

      W. S. Price, for appellant. —
    This suit is founded on a claim for money ; and in such a suit there is an injunction to restrain the defendant, Ervin, from parting with any of his property while the plaintiff tries to make out his case, and to obtain a, final decree for an indefinite amount of money and until he can entitle himself to a writ of execution, and levy upon the property held in waiting by the injunction. It is submitted, that this is without warrant in law or equity. The inducement recited in the decree, even if admitted, does not justify the injunction. The gist of it is, that it appears to the court, that moneys, the property of Henry G. Morris, have come to the hands of Ervin, as the agent of Morris, and are retained by him to the prejudice of the plaintiff, assignee of said Morris. Therefore it is that the court restrains Ervin from transferring or disposing of any real estate, no matter when or how he acquired it, or stocks, bonds or other securities of which he may be possessed, even though he purchased or inherited them years before he ever heard of Henry G. Morris. The injunction affidavits do not designate a single piece of real estate, or any stocks, bonds or other securities in which it is supposed that money belonging to Morris was invested, unless it be in the vague reference to stock of the Seventh National Bank.

      Lewis Wain Smith and William A. Porter, for appellee. —
    The bill and affidavits disclosed a relation of trust between Morris and Ervin, and that the appellant, as agent of Morris, received large sums of money of the latter for which he has failed to account; that he either has this money now in his hands or else has invested it in securities which are unknown to the complainant, and that he is about to make way with the money or transfer the securities so as to defeat the complainant’s claim. The question then simply is whether the defendant, having secured the money of the complainant and refused to discover to the court the form in which it has been invested by him, should thus be able to defeat the complainant’s claim, or whether he should not be restrained from disposing of any and all property until he has made discovery as to which is the complainant’s and which is his own. The rule applicable to this case, both in law and equity, has been well settled for over a hundred and fifty years, and has remained unshaken in this country and in England. It has always been held, that if any one having charge of the property of another willfuly intermixes it with his own, or wilfully conceals which is the property of the other and which is his own, that in such cases he, through whose wrong the confusion occurred, must show affirmatively which is his own and which is the property of the innocent party; or failing so to do, all shall be taken as the property of the innocent party. If it is a case for damages, they will be given for the utmost value the article will bear. In support of this position cited, Armory v. Delamirie, 1 Strange 504; Lord Chedworth v. Edwards, 8 Ves. Jr. 46; Lupton v. White, 15 Id. 432; Hart v. Ten Eyck, 2 Johns. Ch. 108; Brackenridge v. Holland, 2 Blatchford 377; Hesseltine v. Stockwell, 30 Maine 237; Bryant v. Ware, Id. 295; Norris’s Appeal, Brown’s Estate, 21 P. F. Smith 106.
   The judgment of the Supreme Court was entered June 5th 1876,

Per Curiam. —

We shall give no opinion on the merits of this case, but the decree of the court below is so sweeping in its terms it cannot be supported. ■ A decree which restrains a man’s power of disposition over all his real estate, stocks, bonds or other securities, without tracing the money of the plaintiff into their purchase or ownership, and which thus locks up his entire available estate on the ground that he has received the money of another as his agent, cannot be supported by any reasonable exercise of equity powers. An injunction of this wide operation would be an instrument of oppression in many cases. Property or money of thei plaintiff, or which may be reasonably presumed to be his, in fact or in trust, may have to await the result of litigation, but what the defendant has in his own right cannot thus be locked up by such a sweeping decree.

Decree reversed, and injunction dissolved and record to be remitted.


author: Mr. Justice Gordon

text:
    Roumfort, Administrator of Miller, versus McAlarney.
    1. A creditor of a decedent’s estate cannot pay himself by withholding the property of the estate in his possession from, the administrator.
    2. A sale of goods of an intestate to one of his creditors by his widow, before letters of administration have been taken out, the goods being in the possession of the creditor at the time of the sale, and the creditor not paying for them, passes no title.
    3. The fact that the widow afterwards paid debts of the estate with her own money does not make the sale a valid one, so as to pass a title to the goods.
    4. ■ M. and McA. were partners in the practice of the law; M. died leaving his law library in the possession of McA. The widow of M. undertook to settle his estate without taking out letters of administration and made a sale of the library to McA.; she paid' some of, M.’s debts with her own money. The library was never paid for. Afterwards R. took out letters of administration on M.’s estate and brought an action of replevin to recover the library: Held (reversing the court below), that the sale to McA. passed no title and that R. could recover.
    5. It seems that if the widow had had possession .of the property, had sold it to the defendant and applied the purchase-money to the payment of his debts, there would have been a quasi administration which it would be inequitable to disturb.
    May 26th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Common Pleas of Dauphin county: Of May Term 1876, No. 104.
    This was an action of replevin, brought by Roumfort, administrator of W. H. Miller, against J. C. McAlarney, for a law library. The defendant pleaded “ non cepit ” and “ payment,” and when the case was called for trial added a plea of “property.” It appeared that Miller and McAlarney had been partners in the practice of the law, and that the books in question, which belonged to Miller, had been used by the firm, and upon Miller’s death had remained in the possession of the surviving partner, McAlarney.
    At the trial the plaintiff gave evidence to prove that the title to the books was in Miller at the time of his death (as to.- which there was no dispute), and to prove a demand for them by the administrator upon the defendant.
    The appraisers appointed to appraise the personal estate of the-decedent testified that they had performed their duties in May 1871, and that at that time McAlarney pointed out General Miller’s library to them and made no claim to it.
    Roumfort’s evidence was as follows:—
    “ I took out letters of administration on W. H. Miller’s estate-, April 19th 1871. From the time I was appointed till I demanded the library in July 1872, I had several interviews, and a distinct recollection that Mr. McAlarney said he couldn’t get along without the library. He expressed regret that he was obliged to part with the library. I told him if he would give me security for the appraised value of the library he might retain it. He said this proposition was satisfactory, but he never gave the security or paid any inoney. No 'claim to the property in the library was ever made by him direct or indirect. He never complied with the proposition.” Cross-examined: “ He never paid anything to me. I do not know that he paid anything for the library. All the debts of the estate were paid. I got'the money partly from sales and partly from Mrs. Miller. I paid all. Mr. Kreiter had a claim ; he had a settlement with Mrs. Miller.”
    Eor the defendant, an offer was made to prove that Mrs. Miller, the widow of General Miller, sold the library in question to the defendant, to be followed by proof of payment of the debts of the decedent with the proceeds of the sale, and that this sale was prior to the taking out of letters by the plaintiff. This was objected to by the plaintiff as irrelevant, on the ground that Mrs. Miller had no right to sell the library. The court admitted the evidence as relevant under the plea of “ property,” reserving its effect till the whole case had been heard. The plaintiff excepted.
    The defendant, Mr. McAlarney, then testified as follows:—

      “ A short timé after the death of General Miller, the widow came to me and said she would pay all his debts. She wanted me to take the library. I told her, that as a lawyer, I knew and she knew that she had no legal right to dispose of the property, because she was simply a widow, but if she would take out letters of administration it would be all right. But she said she did not want any trouble, that she proposed to pay the whole of it: I advised her against it, and refused to have anything to do with it. I gathered a number of bills. She paid a number of bills.
    “ Mr. Kreiter came to my house and got schedule list of books. He came back with price of these books at $426.50. I gave a statement of accounts between Miller and myself. I agreed to take the office furniture and library at prices stated. Mr. Kreiter took ' it away. I took the library under that agreement. I wrote to Mrs. Miller 24th of June 1872. I have had the books ever since. I have claimed the property ever since the purchase.”
    The defendant then offered in evidence a statement and partial settlement of his accounts with the estate of Miller, dated March 24th 1871, to be followed by proof of acceptance and agreement to its terms .by Mrs. Miller, in order to prove the alleged sale to Mc-Alarney. This evidence was objected to and admitted under exception.
    This statement charged the estate of Miller with certain sums due to the firm by the estate, credited it, among other things with the appraised value of the law library in question and with Miller’s share of the furniture (both of which McAlarney therein agreed to take at the valuation set upon them) and showed a balance due by McAlarney to the estate of $168.25. There was no evidence that McAlarney ever paid this balance.
    J. M. Kreiter was then called by the defendant and testified as follows:—
    “ This paper (the settlement) is in my handwriting. I acted for Mrs. Miller by her authority. Went to Mr. McAlarney, and made a final settlement — valuation of library — she agreed and consented to sell the library to Mr. McAlarney at that price. I read the paper to Mrs. Miller ; she was satisfied, and all that was necessary was to get Mr. McAlarney’s name. The endorsement was made in General Roumfort’s dining-room — she was staying there. I left the paper with Mrs. Miller ; we considered it settled. Mrs. Miller made payments of debts of the estate. I settled with Bolton $900 —with Shoemaker. We made a settlement on the 1st of April of the matters between General Miller and myself. It was an obligation of the general’s that I held; $3433.06 was the balance and she gave me her obligation for that.”
    Roumfort’s administration account (duly confirmed by the proper court) was then put in evidence by the defendant, showing a settlement of the estate and the payment of all debts, partly, however, with the aid of $1114.03 advanced by Mrs. Miller for that purpose.
    ' The case was then closed.
    The only point submitted was by the plaintiff, as follows:—
    That Mrs. Miller, after the death of her husband, was incompetent in law to sell or dispose of his personal property, and any arrangement, therefore, made by her with the defendant about the property in question (even if proved), not sanctioned by the plaintiff, can be no defence in this action.
    The court charged in reply to this point in these words:—
    “We cannot answer this point as requested, but say to you that if you find that Mrs. Miller undertook to settle the estate, and pay the debts of her deceased husband, without taking out letters of administration, and that the estate was wholly insolvent, and that in pursuance of that purpose she went on and sold the library in question to the defendant McAlarney, and gave him possession of it, and that he has paid or been ready and willing at all times to comply with the terms of sale as thus made, and if you find further that Mrs. Miller paid debts largely in excess of any amount that came into her hands from the estate, and has since paid to the present plaintiff more than twice the amount or value of the library, as appears by the administration account, then we instruct you that there can be no recovery in this action.”
    The general charge was summed up as follows :—
    “ [You will determine as to the solvency of the estate, and whether Mrs. Miller was acting in good faith knowing it to be largely insolvent. Nobody could complain of that; the heirs could not complain; and if it was all done fairly and honestly, there is no reason why the arrangement she made, with that motive, with that purpose in view, could not be carried out. The law will carry it out, and the law will enforce it. Then if you find that to be the state of facts, we instruct you that1 the plaintiff cannot recover; and that your verdict should be for the defendant.]”
    Verdict for defendant and judgment. Roumfort took this writ of error, assigning for error (1) the answer to the plaintiff’s point, (2) the admission of evidence of a sale of the library by Mrs. Miller to the defendant, (3) the admission of the above settlement in evidence, and (4) the part of the above general charge in brackets.

      H. M. Gtraydon and F. Jordan, for plaintiff in error. —
    It was assumed by the court below that the widow was an executrix de son tort. Even so she could not pass title to the books: Wylly v. King, Georgia Dec., pt. 2, p. 7; Mountford v. Gibson, 4 East 441; Woolfork’s Adm’r v. Sullivan, 23 Ala. 548 ; Carpenter v. Going, Adm’r, 20 Id. 587; Wilson’s Adm’r v. Hudson, 4 Harring. 168. The acts of an executor de son tort are only good when they are such as the true representative was bound to perform: Buckley v. Barber, 6 W., H. & G. 162, 183. No part of the proceeds of the alleged sale went to pay the decedent’s debts. It has been held that an executor de son tort may recoup in damages for payment of debts actually made by him; but only where the estate is solvent : 1 Will. Ex’rs 238; Mountford v. Gibson, supra. Nass v. Vanswearingen, 7 S. & R. 192, is not in conflict with these cases.
    The defendant was not an executor de son tort. His pleadings do not show such a defence: 1 Will. Ex’rs 232; Padget v. Priest, 2 T. R. 99; see also, Wiley v. Truett, 12 Geo. 588; Paull v. Simpson, 9 Ad. & E., N. S. 365.
    The defendant, never having claimed property, is estopped to claim it now: Commonwealth v. Moltz, 10 Barr 527; Patterson v. Lytle, 1 Jones 53.

      J. W. Simonton, for defendant in error. —
    The sale to McAlarney passed title: Weeks v. Gibbs, 9 Mass. 77; Nass v. Vanswearingen, 7 S. & R. 196; Saam v. Saam, 4 Watts 432; Walworth v. Abel, 2 P. F. Smith 370. The vendee of an executor de son tort is in a better position than his vendor and will be absolutely protected. The question of estoppel was not raised below.
   Mr. Justice Gordon

delivered the opinion of the court, June 5th 1876.

At and before the decease of William H. Miller, he and the defendant were partners in the law business, occupying the same office, and, as we understand the evidence and the statements of the parties through their counsel, the property in suit remained in the possession of the defendant until the bringing of the present action, and perhaps until this time. The defence rests solely on the ground of title acquired through the sale by Mrs. Miller. Though Mc-Alarney claims to be a creditor of the decedent, yet it is certainly not law that he can on this ground withhold the property in his hands from the lawful administrator. A creditor cannot be permitted thus to pay himself, to the detriment of the estate: Lomax on Ex’rs 80, 81. Besides this, the defendant’s claim is subject to a settlement between himself, as the surviving member of the firm of Miller & McAlarney, and the administrator, and until such settlement occurs and a balance is found in his favor, he has no debt which he can enforce against the estate of his co-partner. As, however, the court below rightly refused to consider this as a legitimate defence, we need pursue the subject no farther. What then was the title which he acquired through Mrs. Miller? If we assume that she is to be regarded as an executrix de son tort of her husband’s estate; that she took possession of the property in question, sold it to the defendant, received the money and applied it to the debts of the decedent, in such case it plight be that we should treat the title as having vested in the defendant; for under such circumstances the property would have passed into a quasi administration which it would be inequitable to disturb. But two important elements in the above proposition are wanting in this case: (1) Mrs. Miller had neither the possession of, nor the right of possession to the property ; (2) McAlarney did not pay her for it, and hence there was no administration thereof for the benefit of the estate. Hence, as we have already intimated, the 'defence must rest solely on the title acquired by the bargain and sale of Mrs. Miller ; as, however, she had no title her sale could confer none: Sellers v. Licht, 9 Harris 98. That, she paid debts of the estate does not help the matter, for in an action against her for the conversion of the goods of the estate, she could not plead the payment of such debts, but would-be allowed only to recoup them in mitigation of damages on the general issue : Saam v. Saam, 4 Watts 432; Mountford v. Gibson, 4 East 441. If, however, we accept the doctrine of Hardy v. Thomas, 23 Miss. 544, even this rule of recoupment fails where the action is for property remaining undisposed of in the hands of an executor de son tort. This same doctrine is intimated as probable in Buller’s Nisi Prius 48. This case, however, does not require us to endorse* the rule thus enunciated, for under any view, the defence admitted in the court below fails to bear the test of authority. The plaintiff’s point should have been affirmed.

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


author: Mr. Justice Sharswood

text:
    Pennsylvania Railroad Co. versus Shay.
    1. It is error to submit a question of fraud to a jury to overturn a written instrument upon slight parol evidence.
    2. The evidence of fraud in such cases must be clear, precise and indubitable, otherwise the case should be withdrawn from the jury. A mere scintilla of evidence is not sufficient to take a case to the jury.
    3. Since parties are allowed to testify on their own behalf, it has become still more necessary that this important rule should be strictly adhered to and enforced.
    4. The son of the plaintiff below was killed by the defendant’s train while walking on a railroad track. In consideration of the defendant’s paying the funeral expenses, the plaintiff signed a release, under seal, of all damages for his son’s death. He afterwards brought suit for damages and endeavored to invalidate the release on the ground of fraud. The court below charged that the evidence of fraud was too slight to justify the jury in setting aside the release, but left the question of fraud to them upon the evidence: Held, that this was error, and that the case should have been withdrawn from the jury.
    May 26th 1876.'
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas of Dauphin county: Of May Term 1876, No. 98.
    This was an action on the case, brought November 14th 1874, by Shay against the Pennsylvania Railroad Company, to recover damages for the death of his son, about ten years of age. At the trial before Henderson, J., it appeared that on the morning of June 6th 1874, a passenger train on the defendant’s road, passing through a sparsely settled district within the city limits of Harrisburg, ran over and killed the plaintiff’s son while .walking uppn the defendant’s track; further, that as soon as the engineer observed the boy upon the track every possible effort was made to stop the train. It was admitted that the train hands were competent men, and that the track and train and everything about them were in perfect order. The only negligence attributed to the defendant was that the speed of the train was excessive, and in contravention of the city ordinance regulating the speed of trains. It did not appear that the boy had any right to be upon the track. He was apparently prevented from hearing the train that struck him by the noise made by another train; passing in the opposite direction upon another track. As a complete defence to the action the defendant offered in evidence the following paper:—

      “Pennsylvania Railroad Company,_
    Dept.
    1874 June
    Know all men by these Presents that I, Oliver Shay, in consideration of the sum of Sixty nine Dollars & fifty cents — to me paid by the Pennsylvania Rail Road Company, do hereby release and forever discharge the said Company from all liability to me, for or on account of the accident to my son, resulting in his death, by being struck by Niagara Exp. West, June 6th 1874, near Lochiel Iron Works.
    Witness my hand & seal the 18th day of June 1874.
    Witness Present, Robt. E. Williams. | Oliver Shay, [l. s.]
    “I certify that the above account is correct, and duly authorized.
    G-. Clinton Gardner, Gen’l Supt.”
    “The above account is duly authorized; it has been examined by me, found correct, and is hereby approved.
    Dis.
    “ Thos. R. Davis, Auditor.
    Received, June 18th 1874, of Thomas T. Firth, Treasurer of the Penn. R. R. Co., Sixty-nine Dollars in full of the above account. $69.50. Oliver Shay.”
    The defendant then rested.
    In rebuttal the plaintiff offered to prove that he could neither read nor write, and did not know the contents of the paper signed by him, and understood it to be simply a receipt for the funeral expenses of his son, and did not intend to release his claim for damages. To this offer the defendant objected: 1. Because the receipt was in writing and under seal, and could not be contradicted by the plaintiff. 2. Because it was an offer to show that the plaintiff signed the paper without reading it or asking to have it read to him, which would be evidence of such gross carelessness as would prevent his attempting to repudiate it. The evidence was admitted under exception on the ground that “ if the plaintiff was induced to sign through a false representation by the defendant’s agent, and believed that it was only'a receipt for the funeral expenses paid by the company, it would be competent for him to show that the paper or release was thus procured in fraud of his rights.” Shay then testified as follows: “ After boy was killed, too poor to bury. I went to see Williams; I asked him if the company will bear the expense of burying the boy. Telegraph. He told me he will bury. He told me to tell Mr. Boyd to come to depot. He looked after the funeral. Mr. Roal came for me to house. Mr. Williams. I went to see him, paper lying before him; he told me here is receipt of funeral. I signed and he paid me. I can’t read or write. (Release shown witness.) This is my name. I may have signed it twice.”
    R. E. Williams, the subscribing witness, was then re-called by the defendant and testified as follows :—
    “ I saw the old gentleman the day after the accident. He asked me what to do as to funeral expenses. I answered back if Shay would sign a release, releasing the company from all damages for his boy, I would pay the funeral expenses. Mr. Shay didn’t object to it; he said he would do so. I then notified Mr. Boyd what had transpired and he went ahead with funeral. I notified Mr. Lockard that Mr. Shay had no objections to sign release when sent. Shay came and I explained why I wanted him to sign twice. He took paper and held it up for two minutes. I then explained it to him and he signed. Got the check cashed for him ; I read the release portion of it to him. I have the telegram from Mr. Lockard; I communicated the contents of it to Shay.”
    This telegram was then placed in evidence as follows:—
    “ R. E. Williams. Philadelphia 6. | 6.
    You had better leave the parents of the boy contract for his coffin and funeral expenses. You can say to them that if they desire you will ask the Co. to defray the expenses after the funeral is over; if you find you can settle the matter by paying the expenses we will do so, but will take a release.
    (Signed) W. E. L.”
    The defendant requested the court to charge among other things as follows:—
    14. The release signed by the plaintiff being in full of all damages occasioned by the death of the plaintiff’s son, it bars the plaintiff’s right to recover in this case.
    15. It is not competent for the plaintiff, by his own testimony alone to invalidate a release in writing signed by himself.
    The court, after charging generally on the subject of plaintiff’s and defendant’s negligence, proceeded as follows:—
    “We come now to the release ; this we say to you is inlaw what it purports on its face to be — a release by the plaintiff to the defendant for all damages by reason of, or arising out of, the death of this boy by the alleged accident on defendant’s railroad; it is in writing ; it is signed; it is under seal; it is witnessed. The consideration is expressed in the writing and imported by the seal. It is valid in law and a complete har, and full defence to the plaintiff’s right to recover in this case, unless you are satisfied from the evidence that he was induced to sign it by false statements or fraudulent representations, that being ignorant, he was deceived as to the contents of the paper, that it was not read to him and its import and effect misrepresented to him, so that the execution of the release was a fraud upon him. Whilst the credibility of the witnesses and phe weight of the evidence is for you, we do not hesitate to say that we fail to see any sufficient evidence to justify the jury in a conclusion of fraud to set aside the written evidence, the release in this case. You have on the one hand attacking the release — the plaintiff, the party in interest, he stands alone and seeks to set aside his solemn deed. He says it was only intended by him as a receipt, but you will observe he signed twice, he says he can neither read nor write, but you will have the paper out with you, and may examine his signature, what he admits he wrote. He says the paper was not read to him, but Williams, the witness to the execution, says he read over and explained it to him, and that it was executed in pursuance of an understanding or agreement that he was to execute it, if the defendant would pay the funeral expenses. If there is any truth at all in the testimony of Williams, a witness, it is true, in the employ of the defendants, but he is in no way interested directly in the result of this suit, it overcomes, certainly meets squarely the testimony of the plaintiff. It explains, and when we consider that the defendant claimed immunity from any damage, it explains the small amount in the release, simply the funeral expenses, which were all that they would consent to pay. But even if we set off oath against oath, we must then let the paper speak for itself, and so speaking does it not deny the right of the plaintiff to recover in this action.”
    The jury found a verdict for the plaintiff. After judgment thereon the defendant took this writ of error, assigning for error the refusal of the court to answer the defendant’s fourteenth and fifteenth points as requested, and that portion of the charge given above.

      Sail Jordan, for plaintiff in error. —
    The rule of law is that extrinsic evidence cannot be admitted to contradict or vary a written instrument, especially one under seal: Lighty v. Shorb, 8 Penna. 450; Monongahela Nav. Co. v. Fenlon, 4 W. & S. 205; Rearick’s Ex’rs v. Rearick, 8 Harris 66. This rule is particularly important since the Evidence Act of 1869. In equity, fraud or mistake, plainly made to appear by clear, satisfactory and convincing proof, may be shown. The only evidence of fraud was the plaintiff’s, and the rule of evidence in equity is that where there is oath against oath the denial must prevail: Brawdy v. Brawdy, 7 Barr 157; Ballentine v. White, 27 P. F. Smith 20; Rogers v. Insurance Co., 6 Paige 583; Commercial Bank v. State Bank, 4 Ed. Ch. 32.
    The fact that the plaintiff below could not read, does not entitle him to relief: Seeright v. Fletcher, 6 Black 380; May v. Johnson, 3 Indiana 449; 2 Stark. Ev. 374; Greenfield’s Estate, 2 Harris 489; Hallenbeck v. Dewitt, 2 Johns. 404; Sherwood v. Salmon, 2 Day 136. The evidence of fraud must be clear: Irwin v. Shoemaker, 8 W. & S. 75; Dean v. Fuller, 4 Wright 474; Stine v. Sherk, 1 W. & S. 195; Iddings v. Iddings, 7 S. & R. 111. Especially since the Evidence Act of 1869: Martin v. Berens, 17 P. F. Smith 459. Parol evidence was not admitted in Jarvis v. Palmer, 11 Paige 650; Strong v. Dean, 55 Barb. 337; Stearns v. Tappin, 5 Duer 294; Piersons v. Hooker, 3 Johns. 68; Van Brunt v. Van Brunt, 3 Ed. Ch. 14.

      J. O. MoAlarney and J. W. Simonton, for defendant in error.
    —The part of the charge assigned for error was strongly for the defendant below; the court could not refuse to let the evidence go to the jury, being the evidence of a competent witness. This was a legal defence, and therefore Ballentine v. White, 27 P. F. Smith 27, does not apply.
   Mr. Justice Sharswood

delivered the opinion of the court, June 2d 1876.

The only error assigned is to the charge of the court on the subject of the release by the plaintiff given in evidence by the defendant. Its execution was not denied. It was submitted to the jury to find whether it was obtained by fraud. There was no evidence given upon the trial, as far as appears upon this record, to justify such a submission. The learned judge himself said in his charge: “ Whilst the credibility of the witnesses and weight of evidence is for you, we do not hesitate to say that we fail to see any sufficient evidence to justify the jury in a conclusion of fraud to set aside the written evidence, the release in this case.” Why then should it have been submitted? The scintilla doctrine has been long exploded. If, believing the plaintiff’s witnesses, there was not enough upon which to found a reasonable conclusion, it is not a question of the weight of evidence, but there is no evidence at all.

Putting aside entirely the testimony of Williams, the subscribing witness, who swore that Shay had agreed before to execute such a release if he was paid the funeral expenses of his child; that he read to him the release portion — explained it to him; that he thereupon took the paper in his hand for two minutes and then signed; there was nothing in Shay’s own testimony to raise the question. All he said was: “I went to see him (Williams) — paper lying before him; he told me here is receipt of funeral. I signed and he paid me. I can’t road or write. (Release shown witness.) This is my name. I may have signed it twice. The paper was not read to me.” He does not pretend that he told Williams that he could not read and asked to have it read or explained. There was nothing ■untrue in what he says Williams told him. Below the release was a receipt for the funeral, which he also signed. As he wrote his name, Williams had a right to presume that he could read, and had read it. He was not required to read or explain it to him, unless requested. As is said by Chief Justice Gibson, in Greenfield’s Estate, 2 Harris 496, “If a party, who can read, will not read a deed put before him for execution; or if, being unable to read, will not demand to have it read or explained to him, he is guilty of supine negligence, which, I take it, is not the subject of protection, either in equity or at law.” Shay, did not even deny that he knew what he was signing; that it was a release of all his claim upon the company in consideration of a sum of money sufficient to pay the funeral expenses. It has been more than once held that it is error to submit a question of fraud to the jury upon slight parol evidence to overturn a written instrument. The evidence of fraud must be clear, precise and indubitable; otherwise it should be withdrawn from the jury: Stine v. Sherk, 1 W. & S. 195; Irwin v. Shoemaker, 8 Id. 75; Dean v. Fuller, 4 Wright 474. Since parties are allowed to testify on their own behalf, it has become still more necessary that this important rule should be strictly adhered to and enforced. Judgment reversed.