author: Chief Justice Sharswood

text:
    Snyder’s Appeal.
    S. conveyed a property to T., about three o’clock in the afternoon, taking at the same time a judgment-note for the unpaid purchase-money. She returned to her home at once, but owing to the lateness of the hour and the condition of the weather and the roads could not that night go to Somerset, which was the county seat, eight miles distant. She started early the next morning, and reached the prothonotary’s office before it was opened, and entered the judgment within fifteen hours from the delivery of the deed. Held, that the delivery of the deed and the entry of the judgment were a continuous act, so as to give effect to the judgment as a lawful continuation of the lien for purchase-money, and judgments which had been entered against the equitable estate of X. were not entitled to priority.
    October 28th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Green, JJ., absent.
    Appeal from the Court of Common Pleas of Somerset county: Of October and November Term 1879, No. 374.
    Appeal of Samuel Snyder, administrator of Stephen Trent, deceased, from the decree of the court confirming the report of the auditor to distribute the proceeds of a sheriff’s sale of the real estate of Charles Trent.
    In 1872, Harriet Snyder, by a parol contract, sold a tract of land to Charles Trent for $2400, of which $800 was to be paid in hand, and the balance in annual payments of $150. The deed was not to be executed until the hand-money was paid. Trent took possession, paid at different times $898 of the purchase-money, and made improvements on the land. On February 19th 1877, Stephen Trent entered a judgment for. $438 against Charles Trent, and on November 6th 1877, Samuel Snyder entered a judgment for $315 against Charles and Stephen Trent. For the purpose of executing the deed Mrs. Snyder and Charles Trent were to meet at the house of the latter, about eight miles from Somerset, the county seat, on the 23d of November 1877. The notes for the unpaid purchase-money were then to be made, and a justice of the peace was to be present to prepare and take the acknowledgment of the deed.
    Mrs. Snyder, who was a widow, in feeble health, and who, on that occasion, had no male person about her house, except a son aged about seventeen years, made preparation to go to Somerset after the delivery of the deed and notes, and went to Trent’s house distant about a half mile from where she lived, at eight o’clock, A. M., of said day, for the purpose of executing the deed, &c. The justice not being there, she returned to her home, and when the justice arrived at Trent’s house, they sent for her. This was between one and two o’clock, p. M., of said day, but owing to the delay caused by sending for, a person to witness the deed, and the settling of disputes that arose between the parties, the deed was not delivered until late in the afternoon, between three and four o’clock, at which time Trent gave her two judgment-notes, one for $323.41, the balance then due, and one for $850, the amount of the deferred payments.- Mrs. Snyder returned to her home immediately, but owing to the lateness of the hour, the condition of the weather and the roads, could not go to Somerset that night, but started early the next morning, and reached Somerset before sunrise and before the prothonotary’s office was open, and the notes for the balance of the purchase-money were entered of record as soon as the prothonotary’s office was opened, and within fifteen hours after the delivery of the deed.
    On the 8th of November 1878, the real estate of Charles Trent was sold upon a writ of venditioni exponas, issued upon one of the judgments of Harriet Snyder, for the sum of $1000. The sheriff brought the money into court, and on the 22d of November 1878, upon the petition of the sheriff, an auditor was appointed to distribute the fund arising from the sale. On the hearing before the auditor the money was claimed by Stephen Trent and Samuel ■ Snyder, whose judgments had been entered against the equitable estate of Charles Trent, and who claimed that their judgments had priority over that of Harriet Snyder, by reason of her judgment not having been entered on the day the deed was delivered. The auditor held that, under the circumstances, the delivery of the deed and the entry of the judgment was a continuous act, and distributed the money to the judgments of Harriet Snyder. Exceptions were filed to the auditor’s report, but the court dismissed them and confirmed the report. From this decree of the court, Samuel Snyder, administrator of Stephen Trent, deceased, took this appeal.

      Valentine Hay, for appellant.
    Judgments against the vendee bind every kind of equitable interest that he may have at the entry thereof, and the lien fastens upon the legal title, eo instanti, it is conveyed to him: Waters’s Appeal, 11 Casey 523; Brown v. McCormick, 6 Watts 64.
    Price on Limitations and Liens, p. 240, says: “Although the equitable title of the vendee be bound by judgments against him, the vendor, on conveying the legal title, may take a mortgage or judgment for the purchase-money, or make the deed subject to it, which will have priority of lien over the previous judgment against the vendee: Episcopal Academy v. Frieze, 2 Watts 16; Love v. Jones, 4 Id. 465. But such security must be taken in the same transaction in which the deed for the title is delivered and be entered of record; a judgment on the same day, the mortgage within sixty days, or the priority of the lien for purchase-money will be lost, and the lien on the previous equitable title will be let into a priority upon the legal as well as the equitable title: Wath v. Steel, 1 Barr 386; Hepburn v. Snyder, 3 Id. 78; Lyon v. McGuffey, 4 Id. 126.”
    We think there are no exceptions to the rule, and should be none. If distance from the county seat, sickness, want of facilities and such like, would continue or preserve the lien of the vendor for one whole day after delivery of deed, why not for two or ten days, under certain circumstances ? The equities in one case might be as strong after the lapse of ten days as in another after one day.

      J. L. Pugh and W. H. Koontz, for appellee.
    The rule that a judgment against the equitable estate attaches to the legal title is a fiction of law, and as such should only be invoked for the furtherance of justice, and should “ not be carried further than the reasons which introduced it necessarily require:" 1 Lilly’s Abr. 610; 2 Hawkins Pl. Cr. 320; Best Pres., 20. The transaction should have such operation as would most effectually promote the intention of the parties. By giving to the delivery of the deeds and the confession of judgment a contemporaneous and connected operation, this object is attained: Love v. Jones, 4 Watts 470; Foster’s Appeal, 3 Barr 81.

      November 10th 1879.
   Chief Justice Sharswood

delivered the opinion of the court,

Applying a very strict rule to the case before us, any interval of time however short between the delivery of the deed and the entry of the judgment for the purchase-money, ought to let liens upon the vendee’s equitable title in upon the legal estate, according to their priority. But apices juris non sunt jura. A different principle was therefore adopted in Love v. Jones, 4 Watts 465, in which Mr. Justice Kennedy said: “It is evident, however, that the delivery of the deeds to Stauffer (the vendee) and his confession of the judgment an hour afterwards for the residue of the unpaid purchase-money, were but parts of the same transaction, done in pursuance of the same agreement, and were to have such operation only as would most effectually promote the intention of the parties, so far as it was lawful.” It is true that it was decided in Watt v. Steel, 1 Barr 386, that a judgment for residue of purchase-money entered up a day after the vendor had conveyed the legal title, did not exclude a prior judgment against the vendee. In that case, however, there was an evident break in the transaction, and for all that appeared it would have been entirely practicable to have proceeded to the seat of justice and entered up the judgment on the same day. In Jacob’s Appeal, 11 Harris 480, Mr. Justice Lewis said: “ The administrator of Samuel Jacobs conveyed to Grove on Saturday evening, the 19th of May 1849, taking at the same time judgments for the unpaid purchase-money. This transaction took place sixteen miles from Gettysburg, the seat of justice. It was unreasonable to require the entry of the judgments that night. It was equally unreasonable to expect them to be entered the next day, which was Sunday. They were regularly entered on Monday.” It is true that he distinguishes the case from Watt v. Steel, by the consideration that this was the act of an administrator under an order of the court, and that the act of the law does not receive so strict a construction. But so far as respects the rights of the prior judgment, it seems to be a distinction without a difference. Both cases were within the rule as originally announced in Love v. Jones, that the whole proceeding must be one continuous act clearly evincing that it was the intention of the vendor to preserve the lien of the purchase-money. In the case before us, according to the facts as reported by the auditor, it is very apparent that both parties intended to continue the lien, and so he reports. The judgments were to have been entered up on the same day, but from a circumstance not within the control of either party, the deed was not delivered until late in the afternoon, and the judgment was entered in the prothonotary’s office the next morning as soon as it was open. We think, with the learned auditor whose report was confirmed by the court below, that this was all one continuous transaction — all done within the space of a day — within twenty-four hours — and it is entirely within the spirit and principle of the authorities to give effect to the judgment as a lawful continuation of the lien for the purchase-money.

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


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Berkey and Wife versus Auman.
    Under an arrangement between plaintiff and her daughter and son-in-law, the details of which were disputed, the latter moved on a farm owned by plaintiff. In general terms the arrangement was that the daughter and son-in-law were to live on the property and take care of and support plaintiff during her life, and at her death the daughter was to have the land. The plaintiff lived on the farm in pursuance of these terms until some disagreement arose when she moved away and gave her daughter and son-in-law notice to quit. Upon their refusal she brought an action of trespass guare clausum fregit. The evidence was conflicting as to whether by the terms of the contract defendants were to take and hold exclusive possession during the life of plaintiff. Held, that as the defendants had control of the farm and used it as their own, and had such lawful possession as authorized them to put in the crops, their right of possession did not, during the growth thereof, at once cease and determine, so as to make them liable in trespass for continuing there, although they failed to fulfil all the terms of their contract thereafter.
    October 28th 1879.
    Before Sharswood, C. J., Mercer, Gordon, Trunkey and Sterrett, JJ. Paxson and Green, JJ., absent.
    Error to the Court of Common Pleas of Somerset county: Of October and November Term 1879, No. 205.
    Trespass quare clausum fregit by Elizabeth Auman against Abraham Berkey and Priscilla Berkey, his wife.
    The plaintiff was an aged widow lady, and prior to the 1st of April 187G, had been living alone on a small tract of land in Somerset township, of which she was the owner. By some kind of arrangement she induced the defendants, her son-in-law and daughter, to dispose of their land and move into her house and board her. There was some dispute as to the exact terms of the contract under which the defendants took possession. The plaintiff claimed that she was to retain control of the land during her life, and that the defendants were to live in the house and have enough land to raise potatoes and for gardening purposes, and were only to cut the fallen timber. The defendants alleged that they were to have immediate and exclusive possession of the entire place, but were to keep the old lady during the rest of her life. About some of the terms of the contract there was no controversy: 1. The contract was made between the plaintiff and her daughter, Mrs. Berkey. 2. Sooner or later the title was to vest in Mrs-. Berkey. 3. The defendants were to move into the house and board the plaintiff during her life.
    After the defendants had been living on the place several months the plaintiff went away, and then brought this action of trespass. The only alleged acts of trespass were done by Abraham Berkey, and consisted of the ploughing of one or two fields, and the cutting of a few trees, but the trees that were cut were used in repairs about the place. All the acts complained of were done during the time the plaintiff was boarding with the defendants.
    The plaintiff, inter alia, submitted the following points, to which are appended the answers of the court:—
    3. If the jury believe that defendants purchased from plaintiff the premises by parol contract, and that they were to have the same on condition that they would keep and maintain her well during her lifetime, and that they were to move in the house with her, and if they did not treat her as became her age and condition in life, and treated her so that she could not live with them, defendants broke the contract, and their right to be on the premises at once ceased and determined, and plaintiff having the legal title and being in possession, can maintain this action of trespass against defendants.
    Ans. “Affirmed. There is little, if any, testimony, outside the plaintiff’s testimony, to show that the defendants failed to keep the plaintiff properly. The evidence of the defendants and of the neighbors is that she was well provided for and kindly treated. The facts of the case, however, we leave for your determination.” (Second assignment of error.)
    5. If the defendants, under the contract, were tenants at will, the cutting of timber trees and other acts of defendants were trespasses, and they are liable for damages in this action.
    Ans. “Affirmed.” (Third assignment.)
    Yerdict for plaintiff, when defendants took this writ, and alleged that the court erred, inter alia, as set forth in the above assignments of error.

      Coffroth & Ruppel, for plaintiffs in error.
    The alleged acts of trespass were all committed during the time the plaintiff boarded with the defendants, and while friendly relations existed between them, and in affirming the points the attention of the jury ought to have been called to this fact.
    The Six Carpenters’ Case, 1 Sm. Lead. Cas. 62, established a distinction between the abuse of an authority conferred by law and one obtained by contract. In the first, the tort-feasor becomes a trespasser ah initio, while in the latter the mere abuse of a privilege does not render the party liable to an action of trespass. See Boults v. Mitchell, 3 Harris 378. When another person has the alleged occupancy, the exhibition of a paramount title is not sufficient to sustain trespass: Caldwell v. Walter, 10 Harris 380; Clark v. Smith, 1 Casey 138; Weitzel v. Marr et al., 10 Wright 463; Williams v. Dougherty, 6 Phila. 156; Narehood v. Wilhelm, 19 P. F. Smith 67.
    Before this action was brought, the plaintiff had left the premises and taken up her abode elsewhere, and consequently had no sort of possession; and if she wished to dispossess the defendants, her remedy was by a different form of action.

      Valentine Hay and John H. Uhl, for defendant in error.
    In their answer to the third point the court are sustained by authority : 2 Waterman on Trespass 368, and Rollins v. Riley, 44 N. H. 9. This latter case is very analogous to the one at bar.
    The affirmance of plaintiffs’ fifth point was clearly right. If defendants were tenants at will the cutting of timber trees and other acts unauthorized by such a tenancy, was a determination of the tenancy and their acts were trespasses and they were liable in damages: 1 Chitty on Pleading, p. 178 (note); Taylor’s Landlord & Tenant, pp. 503, 520, 572-5; Boults v. Mitchell, 3 Harris 371.
    January 5th 1880.
   Mr. Justice Mercur

delivered the opinion of the court,

This is an action of trespass quare clausum fregit, brought by the defendant in error against her son-in-law and daughter. The alleged trespass consisted in cutting four trees standing on a piece of land containing about fifteen acres, the legal title to which was in the defendant in error, and also in ploughing up some meadow land thereon. Under some arrangement between the parties, the precise details of which are in dispute', the plaintiffs in error moved on to the land in the spring of 1876. In general terms, it may be said they were to live on the property, take care of and support Mrs. Auman during her life, and, at her death, Mrs. Berkey was to have the land. The evidence is conflicting as to whether, by the terms of the contract, the plaintiffs in error were to take and hold the exclusive possession during the life of Mrs. Auman. As matter of fact they appear to have so taken it, and for some months thereafter Mrs. Auman lived with them, and was supported by them. During the year of 1876 they cultivated the improved land, putting in oats, corn, potatoes and buckwheat. They also improved the property to the value of $200 or more, by clearing the fields and fixing the house, out-buildings and fences. .While the plaintiffs in error were thus occupying the house and cultivating the lands, and Mrs. Auman living with them, they committed the acts complained of. The trees appear to have been cut to use the lumber made therefrom in repairing the fences and buildings on the premises. Mrs. Auman remained with them until after oats harvest of the same year, when she became dissatisfied, gave them notice to leave, and then she left and moved off the farm, taking most of her property with her, but leaving a few household goods. The plaintiffs in error remained in possession, and were still there when this suit was brought.

In affirming the point covered by the second assignment, the court assumed the defendant in error to be in possession, and held that if the plaintiffs in error failed to fulfil their contract, their right to remain on the premises at once ceased and determined. In this there was error. The actual possession was a matter of fact to be determined by the jury. In addition to the evidence of the plaintiffs in error, that they took possession under the parol contract, the evidence of the defendant in error herself, as well as that of Levi Adams, a witness called by her, as to the manner in which they occupied the farm, was amply sufficient to submit the question of their actual possession to the jury. She testified to Mr. Berkey having ploughed and put in the crops stated, and added: “ I did not order him to do it. I gave him no permission to plough.” Thus clearly showing he was not acting under her authority or instructions, but under his own claim of right. Adams, on cross-examination testified that he was there often; that Berkey “ was farming while she was there; she made no objections. He had the control of the farm, and used it as his.” Still further, if the plaintiffs in error had such a lawful possession as authorized them to put in the crops, their right of possession did not, during the growth thereof, at once cease and determine, so as to make them liable in trespass for continuing there, although they failed to fulfil all the terms of their contract thereafter. Even if tenants at will, they were entitled to a reasonable time to take the emblements therefrom. She could not determine the estate after they had sowed, and before they had reaped, so as to deprive them of the crops. The possession of the land on which the crops were growing continued in the plaintiffs in error until the time for harvesting them arrived: 4 Kent’s Com. 3; Clark v. Smith, 1 Casey 137. Any notice which she may have given them to leave before a reasonable and proper time for harvesting the crops, did not destroy their right of possession. If then they were in possession, and she out, trespass cannot be maintained. The second and third assignments are substantially sustained. We see no merit in the remaining assignments.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Sterrett

text:
    Brown’s Appeal.
    1. The real estate of a debtor was sold by the sheriff and the proceeds paid into court for distribution. All the judgments entered or revived within five years preceding the sale were paid in full, leaving a surplus. There were two judgments the liens of which had expired, not having been revived within five years, and the auditor appropriated the surplus to these judgments. The court overruled the auditor and awarded the surplus to the defendant in the execution. Held, that this was error.
    2. As to creditors whose judgments were either entered or revived within five years before the sale the judgments not revived’had undoubtedly ceased to be liens, but as between them and the judgment debtor the lien continued, notwithstanding the lapse of more than five years from the entry of the judgments without revival.
    October 29th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Green, J., absent.
    Appeal from the Court of Common Pleas of Armstrong county: Of October and November Term 1879, No. 263.
    Appeal of James E. Brown from the decree of the court sustaining the exceptions to the report of the auditor appointed to distribute the proceeds of the sheriff’s sale of the real estate of Linas Townsend.
    The real estate of Townsend was sold and the proceeds, $3685, paid into court and distributed by an auditor. All the judgments entered or revived within five years preceding the sale were paid in full, leaving a surplus. There were two judgments the liens of which had expired, not having been revived within five years, and to these th.e auditor appropriated the surplus in preference to the defendant in the execution.
    Exceptions were filed to this distribution, and the court, McDermitt, P. J., in ruling upon the exceptions said: “ The authority for the auditor’s distribution, he contends, is contained in Konigmaker v. Brown, 2 Harris 269, and Fetterman v. Murphy, 4 Watts 424. These decisions are, however, based on the acts regulating the duration of liens against decedent’s real estate while in the hands of his heirs ordevisees. They are, therefore, not in point.
    The Act of June 16th 1836, Purd. Dig. 657, pl. 116, regulating the distribution of the proceeds of sheriff’s sales, reads: “ Whenever the proceeds of a sale upon execution as aforesaid shall be more than sufficient to satisfy the liens upon the property sold, the officer making such sale or receiving such proceeds shall pay the surplus to the debtor, unless the fund shall have been paid into court, and then, and not before, such officer shall be discharged thereof upon record in the court to which he shall make return of his proceedings concerning such executions.”
    The exceptions are sustained, and the entire surplus remaining, after satisfying the judgments, which were liens on the land. when sold, is ordered to be paid to the defendant.” This action was assigned for error by appellant, the owner of one of the judgments whose liens had expired.
    E. S. Golden and G. N. Guthrie, for appellant.
    By interpretation of the Statute of Westminster II., a judgment binds the land held at the date of it, and without limitation of time. The creditor might have execution of it in the hands of the debtor at any indefinite period while the judgment remained unpaid. Thus stood the law in Pennsylvania till the statute of 1798 restrained the lien of a judgment to a period of five years (but only in favor of purchasers from the debtor, and judgment-creditors in his lifetime) ; it left it without bound or limit against every one else: Aurand’s Appeal, 10 Casey 151; Fetterman v. Murphy, 4 Watts 424; Brobst v. Bright, 8 Id. 124; Wells v. Baird, 3 Barr 351; Marsh v. Haldeman, 2 Clark 234; Baxter v. Allen, 1 W. N. C. 271.
    But the learned judge holds that this rule of law only applies in cases of decedents’ estates. What higher right has the debtor himself to limit the lien of his debts evidenced by judgment than his heirs or devisees ? And the reason that his judgments remain liens against his heirs and devisees is that they occupy his place and are entitled only to his rights.
    Again, the learned judge cites the Act o.f 1836. The word lien in that act was used by the legislature in full vieAV of the construction theretofore given to the Statute of Westminster II., and the Act of 1798 and these recognise all judgments as liens as against the debtor himself or his heirs and devisees.

      J. A. Getty and H. W. Wier, for appellees.
    As early as 1705, the statute, Purd. Dig., pl. 123, page 484, provides that in a sale by the officer, upon a mortgage, he “ must render the overplus to the debtor or defendant.” Act 4th April 1798, Purd. Dig., pl. 3, page 819, defines what are liens upon real estate and, in these Avords: “No judgment hereafter entered in any court of record within this Commonwealth shall continue a lien on the real estate of the person against whom such judgment may be entered, during a longer term than five years, unless the person who may obtain such judgment, or his legal representatives, or other person interested, shall, within the said term of five years, sue out a Avrit of scire facias to revive the same.”
    January 5th 1880.
   Mr. Justice Sterrett

delivered the opinion of the court,

It is conceded that the judgments against the appellee, entered or revived within five years before the sheriff’s sale of his real estate, are entitled to be fully paid out of the proceeds. After satisfying these judgments there remains a surplus, in regard to which the present contention has arisen between the appellant, whose judgment was entered more than five years before the sale and was not revived in the meantime, and the defendant in the judgment. The former claims that as against the defendant his judgment is entitled to the surplus. The appellee, defendant in the judgment, contends that it ceased to be a lien before the sale, not only as to subsequent judgment-creditors but also as to himself, and hence the surplus should be awarded to him.

As to creditors whose judgments were either entered or revived within five years before the sale the judgment of appellant had undoubtedly ceased to be a lien, but as between him and the judgment-debtor the lien continued notwithstanding the lapse of more than five years from the entry of the judgment without revival. When the debtor continues, as did the appellee in this case, to be the owner of the land originally bound by the judgment, and the same is sold on execution against him, the judgment-creditor has a right to participate in any surplus that may remain after satisfying judgments entered or revived within the five years. This appears to be the construction heretofore given to the Act of April 4th 1798. The mischief intended to be remedied by the act did not extend to the defendant. Prior to the passage of the act the lien of a judgment on real estate owned by the defendant at the date of its rendition was unlimited as to time, and the creditor might have execution of the land in the hands of his debtor at any time while the judgment remained uiipaid. This indefinite lien was limited by the act to a period of five years, “ but only in favor of purchasers from the debtor and judgment-creditors in his lifetime; it left it without bound or limit as to everyone else:” Aurand’s Appeal, 10 Casey 151; Fetterman v. Murphy, 4 Watts 424. In the latter case it is said that the second section of the act, which provides that “ no judgment hereafter entered in any court of record within this Commonwealth shall continue a lien,” &c., has no relation to the defendant in the judgment. It leaves the rights of the plaintiff, as to him, precisely as they were before; but, if the creditor fails to revive his judgment, according to its provisions, the act limits his right to five years against purchasers or those who acquire subsequent liens on lands originally bound by the judgment.

It follows that the learned auditor was right in appropriating the surplus fund as he did, and his report should have been confirmed.

Decree reversed at the costs of the appellee, and it is now ordered and decreed that the report of the auditor be confirmed, and the fund in court distributed in accordance therewith.


author: Mr. Justice Gordon

text:
    City Insurance Co. versus Bricker.
    1. A paper was drawn up in lead-pencil, and purported to contain statements made by an insured and taken down by the agent of the insurance company at the office of the company at the time the policy was applied for. The application on its face was not to the insuring company, but was drawn on the blank of another company. The insured signed this paper, and a policy issued to him which referred by number to this paper. The court below instructed the jury that this paper was not to be regarded as a formal application, but simply as a memorandum. Held, that this was error.
    2. Per Gordon, J. We can see no good reason why an application for insurance may not be drawn in lead-pencil.
    October 29th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Green, JJ., absent.
    Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1879, No. 307.
    Assumpsit by David Brieker, against the City Insurance Company, of Pittsburgh, Pa., on a policy of fire insurance, to recover for a loss.
    The policy contained the following: “ It is a condition of this insurance that, if an application, survey, plan or description of the property herein insured is referred to in this policy, such application, survey, plan or description shall be considered a part of this contract, and a warrantee by the assured; and any false representation by the assured of the condition, situation or occupancy of the property, or any omission to make known every fact material to the risk, or an over valuation, or any misrepresentation whatever, either in a written application or otherwise, avoids the policy.”
    The court below, at the trial, inter alia, charged:
    “ The defendants say, that whether David Brieker, the plaintiff, wilfully misrepresented the value of the property, or honestly believed the property to be worth $1500, and the fixtures worth $250 at that time — whether the representations were false or true in his belief, there being a warranty, if the same turned out to be false, that there can be no recovery. [Reading this policy as carefully as we can, and taking into consideration all the facts in the ease, we are not inclined to look upon this paper, which they say is the application, as a part and parcel of this policy of insurance. It is true that, in the body of the policy itself, an application No. 15,515 is referred to. If the application were a formal, properly prepared paper, drawn up to make it a part of this policy, the defendants would be entitled to the warranty as set forth in this policy. But when we come to look at the paper which purports to be the application, under all the evidence in the case, we are inclined to think that, at the time this paper was made out, it was looked upon as a mere memorandum, lacking the ingredients of a formal application, so formal that it would become a part and parcel of this policy of insurance. This policy itself is very formal, carefully prepared, properly signed, and bears the seal of the company. But this paper is drawn up in lead pencil, and purports to contain the statements made by Bricker, and taken down by the agent at the time the policy was spoken of at the office. It is an application on its face, not to the City Insurance Company, but to the Eire Association of Philadelphia. That may have been a mistake, perhaps; but we mention this fact to bear us out in saying that the paper was not looked upon as a formal application, but simply as a memorandum. When Bricker called on Smith in his office, he took his lead pencil and this printed blank of a different company, and made a memorandum of the representations and declarations of Bricker. The paper was not signed at that time, but was signed at the time the price of the policy was paid and the policy was lifted. Therefore, from the paper itself, and from the testimony of Smith, we are not inclined to look upon this paper as a formal application, but simply as a memorandum made by the agent of the company at the time the policy was procured, or at the time the insurance was taken.”]
    Verdict for plaintiff for $500. Defendant took this writ, and alleged that the court erred in the portion of the charge noted above in brackets.

      Edgar & Frank Cowan and G. L. B. Fetterman, for plaintiff in error.
    In no essential part, nor as a whole, was it denied by plaintiff, that the paper contained the statements which he had made to the agent of the company, and upon which the policy had been secured. The fact that the paper contains the representations of Mr. Bricker, makes it his application; and it matters not that the paper is written in lead pencil, and is seemingly not as formal and as carefully prepared as the policy. Nor does it matter whether the applicant signed the paper or not, thus formally making the clerical act of the agent of the company his own, as long as it contains his representations; but in this case, with irresistible force, the application is demonstrated to be the formal and the carefully prepared application of the assured, from the fact that he did not affix his signature until after he had had in his possession the policy long enough to learn from it that the application, No. 15,515 was made a part of the policy, and that any misrepresentation made therein, with intent to defraud or otherwise, would avoid the policy. The plaintiff in error insists upon the recognition of the application in this case, bearing even number with that referred to in the policy, as coming within the meaning of the terms of the policy, namely, a warranty by the assured.

      McAfee & Atkinson and John F. Wentling, for defendant in error.
    November 10th 1879.
   Mr. Justice Gordon

delivered the opinion of the court,

There is but a single point in this case, that, however, is a material one. The learned judge of the court below, when speaking of the application, says : “ But this paper is drawn up in lead pencil, and purports to contain statements made by Bricker, and taken down by the agent at the time the policy was spoken of at the office. It is an application, on its face, not to the City Insurance Company, but to the Eire Association of Philadelphia. That may have been a mistake, perhaps ; but we mention this fact to bear us out in saying that the paper was not looked upon as a formal application, but simply as a memorandum.” We cannot assent to this conclusion. True, it was drawn in pencil, but as wills, notes, &c., may be drawn in pencil (Myers v. Vanderbelt, 3 Norris 510), we can see no good reason why an application for insurance may not be drawn in the same manner. It is also true that it was written in the blank form of another company, but its identification was unmistakable from the number endorsed upon it, and from the property proposed to be insured. Surely, Bricker, with the policy in his possession, could not be mistaken as to what the application was intended to cover. In that policy was a reference to the application by number, and if he could mistake or overlook that, he could neither mistake nor overlook the fact that in the policy he had an assurance of the same goods mentioned in the application. Knowing this, and having had ample time and opportunity to acquaint himself with the contents of the policy, he signed the paper, under consideration, and so covenanted with the company that his exposition of the facts and circumstances therein set forth were true.

Furthermore, it is not reasonable that if the paper was but a memorandum drawn for the convenience of the agent, it should have been signed by Bricker. This act certainly meant an adoption by him of that paper for some purpose, and that purpose could have been none other than that expressed in the instrument itself; that is to say, to bind the applicant to the truth of his own allegations.

The judgment is reversed and a new venire ordered.


author: Per Curiam.

text:
    Leasure versus Union Mutual Life Insurance Co.
    1. A foreign corporation may sue in the courts of this state to enforce the payment of a loan secured by mortgage on real estate in Pennsylvania.
    2. It seems, however, that if a foreign corporation should resort to the remedy of ejectment to recover possession of the land, or become the purchaser at a sheriff’s sale, a different question would arise.
    October 29th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Green, JJ., absent.
    Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1878, No. 318.
    Scire facias sur mortgage by the Union Mutual Insurance Company of Maine against Lorin B. Leasure.
    The Union' Mutual Life Insurance Company of Maine is a company incorporated under the laws of that state. Included in the charter a power was conferred on the company, amongst other powers, to loan money and secure the payment of it by taking mortgages. Under this power the company loaned to the defendant Leasure $4500, and to secure its payment took from him his mortgage dated 5th October 1875, on the defendant’s land in Westmoreland county, Pa.
    The mortgage was payable one year from date; the interest payable semi-annually at the rate of six per cent., and it contained the usual scire facias clause in case of default in payment of principal or interest. The defendant pleaded payment and subsequently filed the following special plea:—
    “ That the plaintiff is a foreign corporation, incorporated, as alleged, by the legislature of the state of Maine. That said corporation has no authority, under any Act of Assembly of the state of Pennsylvania, to loan money within the state of Pennsylvania and take mortgages for the payment of the same on real estate' situate in the state of Pennsylvania. He therefore prays judgment that the said mortgage is void and no,recovery can be had against the defendant in this action.”
    On the trial the question as to the right of the plaintiff to make the loan and maintain this action was reserved, and the jury instructed to find for plaintiff, and a verdict for $5425.12 was entered accordingly. After argument judgment was entered for the plaintiff on the question reserved.
    This action was assigned for error by defendant, who took this writ.

      Foster & Markle, for plaintiff in error.
    The company acquired the right to insure property in this state under the Act of April 11th 1868, Pamph. L. 89. Tliat act was designed to establish a complete system, under which alone such a company incorporated in another state could do business in Pennsylvania: Thorne v. Travellers Ins. Co., 30 P. F. Smith 15.
    To sustain the position of the plaintiff, it must be shown that there is a law of Pennsylvania conferring on the company the right to loan money and take mortgages.
    The Act of 26th April 1855, expressly forbids corporations other than such as shall have been incorporated under the laws of this state, or any foreign government, potentate or power from acquiring and holding any real estate within this Commonwealth, directly in their corporate name, or by or through any trustee or other device whatsoever, unless specially authorized to hold such property by the laws of this Commonwealth: Purd. Dig. pp. 391-2, pl. 56.
    The power to grant life insurance policies is one thing, and the right of a foreign corporation to transact business in their corporate name without authority of law, when the companies incorporated under our own laws could not do it, is another. If this power is recognised by this court it will be difficult to tell to what limit it may be carried or for what purposes used. Foreign capital may be withdrawn from the reach of the taxing power of this Commonwealth, and revenues which ought to belong to this state will go to another state.

      Edgar Cowan, for defendant in error.
    A corporation of one state may sue in the courts of' another. If it may sue, why may it not make a contract ? The right to sue is one of the powers it derives from its charter. If the courts of another country take notice of its existence as a corporation, so far as to allow it to maintain a suit and exercise that power, why should not its existence be recognised for other purposes, and the corporation permitted to exercise another power, which is given to it by the same law and the same sovereignty, when the last-mentioned power does not come in conflict with the interest or policy of the state ?
    Here the plaintiff had power to lend money and secure it by mortgage. The exercise of this power is not forbidden in Pennsylvania, either by policy or statute, and the right to sue here becomes undoubted by the comity of nations, and especially by the comity of the states of the union. As well might the plaintiff in error contest the right of a citizen of Maine to recover a just debt as to attempt to avoid this mortgage. The morality of the one is as obnoxious as the other. “ One who has enjoyed the fruits of his contract with a corporation cannot set up that it was ultra vires:" Oil Creek & Allegheny Railroad Co. v. Pennsylvania Transportation Co., 2 Norris 160.
    November 10th 1879,
   The judgment of the Supreme Court was entered,

Per Curiam.

That a foreign corporation can contract with a citizen of this state, and enforce the contract by suit in the courts, has never been controverted: Bank of Augusta v. Earle, 13 Pet. 519. By the common law, alien friends could always sue, and there is no distinction in this respect between natural and artificial persons. Why, then, may not the performance of such a contract be secured by a mortgage as well as a judgment ? Both are merely liens. It is true that a mortgagee can bring ejectment and recover possession of the land. Should a foreign corporation resort to this remedy, or become the purchaser at sheriff’s sale, a different question would arise. But that even could not release the debt or destroy the validity of the title, except as against the Commonwealth. The Commonwealth indeed might enforce its claim by virtue of the Statutes of Mortmain: Leazure v. Hillegas, 7 S. & R. 320; but the grantor or mortgagor could not set up that as a defence against his own conveyance or mortgage.

Judgment affirmed.


author: Mr. Justice Trunkey

text:
    Williams versus Commonwealth.
    1. In the trial of an indictment of a sheriff for perjury in taking the oath of office prescribed by art. 7, sect. 3, of the constitution, the court sustained a challenge to the array of jurors made by the Commonwealth and ordered a venire for twenty-four traverse jurors to be immediately summoned from the bystanders, or from the body of the county at large. The coroner being sick, elisors were appointed, who summoned the jurors, and the court proceeded with the trial. Held to be error.
    2. Sect. 41 of the Criminal Procedure Act of 1860 authorizes all courts of criminal jurisdiction, when occasion shall render the same necessary, to order a tales de circumstanlibus, either for the grand or petit jury. A tales by its very name signifies a returning of so many as will make up the full complement ; and therefore it is not granted when there is a total default, but only when the number is deficient.
    3. Two witnesses to the falsity of the matter on which the perjury is assigned are not essentially necessary, for if any material circumstance be proved by other witnesses in confirmation of the witness who gives the direct testimony of perjury it may turn the scale and warrant a conviction.
    4. Where there are several assignments of perjury it seems that in addition to the testimony of a single witness there must be corroborative proof with respect to each, and this although all the perjuries were committed at one time and place.
    5. An indictment which charges the crime substantially in the language of the Act of Assembly is sufficient under the Criminal Procedure Act of 1860. The accused may, however, apply to the court or a judge for an order for a bill of particulars, and on the trial the Commonwealth will be restricted to the items specified.
    6. Under art. 7 of the constitution and the Act of 1874 a candidate for office may pay and contribute for printing, travelling expenses, the dissemination of information to the public, political meetings, demonstrations and conventions, and may make interest, without corruption, and use art, without abusing it, to secure his election, but must not, either directly or indirectly, purchase the vote or influence of an elector, or do any act for any corrupt purpose whatever incident to the election.

      October 30th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and. Sterrett, JJ.. Paxson and Green, JJ., absent.
    Error to the Court of Quarter Sessions, of Armstrong county: Of October and November Term 1879, No. 65.
    Indictment of George A. Williams, sheriff of Armstrong county, for perjury.
    Williams was the Republican candidate for sheriff of said county and was elected and duly commissioned. He assumed the duties of his office on January 1st 1877, taking and subscribing to the oath of office. The information charged him with perjury as to the part of the oath as follows: “ I have not paid or contributed, either directly or indirectly, any money or other valuable thing, to procure my election, except for necessary and proper expenses expressly authorized by law. I have not knowingly violated any election law of this Commonwealth or procured it to be done by others in my behalf.”
    On the 15th of August 1878, the same day the information was made, Williams appeared before a justice and gave bail for his appearance at the next term of the Quarter Sessions in September 1878. At the September sessions of said court, the grand jury found a bill of indictment against him, which recited the portion of the oath above set forth, except that the words “nomination or” were inserted between the words “my” and “election.” The indictment had three counts, the first and second in the words of the oath; the third “ that he, the said George A. Williams did, before and previous to taking the oath- aforesaid, and signing the same, and previous to his said election, pay and contribute and promise to pay and contribute, money and other valuable things to procure his nomination for the office of sheriff.”
    On the 11th December 1878, when the cause was called for trial, and before plea pleaded or jury sworn, the defendant’s counsel moved the court to quash said indictment, because :—
    1. The grand jury, by whom the same was found, was not properly constituted, and the Commonwealth was permitted to exclude therefrom two members, viz.: Benjamin Oswald and John Orim, who were duly served and in attendance at said sessions as grand jurors, and the Commonwealth was allowed to interrogate, and did interrogate, the members of the grand jury upon their voir dire as to their opinion relative to said prosecution, except Frank Mateer, who was known (not to the court) to have expressed opinions strong and decided against the defendant, and who was permitted by the Commonwealth to be sworn, and served upon the grand jury in said cause, without being interrogated or sworn upon his voir dire.

    2. The said indictment does not specify or name the person or persons to whom the alleged promises, contributions or payments Were made, or the circumstances, nature or amount of such promises, contributions or payments, or the times and places thereof, or in what respect or how, and by what manner or means the. defendant violated or caused to be violated the election laws of this Common wealth.
    The court, Boggs, P. J., overruled the motion, but said it would be heard and considered on motion for a new trial, or in arrest of judgment. Exception by defendant’s counsel and bill sealed.
    And thereupon the defendant pleaded not guilty. Immediately thereafter the counsel of the Commonwealth challenged the' array of traverse jurors for the reason that they had been summoned by the defendant as sheriff, which challenge the court sustained- and ordered a venire for twenty-four persons for jurors, and the coroner being sick and not able to summon the jurors, appointed Joseph Clark and C. C. Jessup elisors to summon twenty-four persons as traverse jurors from the bystanders or from the body of the county at large. The elisors named proceeded to a neighboring hotel and selected and summoned twenty-four persons as said jurors. They made return as follows:—
    “ List of the names of to persons summoned to serve as traverse jurors in the Court of Common Pleas, to be holden at Kittanning, in and for the county of Armstrong, commencing on the 11th day of December A. D. 1878, -JRo'clock, p. m.” (Here followed a list of the names simpl$¿ wi^Bp any residence or occupation.)
    “We do hereby^naHjBThat the foregoing is an accurate list of the names of persone jBmoned by us for jurors, to meet the 11th day of December, ¿ co^B78, from the body of the county of Armstrong, according W tW writ hereto annexed, dated 11th day of December A. D. 187#¿ff
    Witness our hanttrBt Kittanning, this 11th day of December A. d. 1878.
    Joseph Clark,
    C. C. Jessup,
    Elisors.”
    The jurors were then called, when defendant challenged C. N. Henry, for cause, in that the said Henry was the competitor of said defendant for the office of sheriff of Armstrong county, at the general election in said county, in November 1876, at which the breaches of the election laws are alleged to have been committed by defendant.
    To this challenge, the Commonwealth demurred, and the court sustained the demurrer, and allowed the juror to sit and try the cause.
    The Commonwealth called a number of witnesses, who testified relative to promises, payments, &c., alleged to have been made by defendant to .secure his nomination. In the general charge, the. court withdrew this point, but by some inadvertence the defendant’s first point, requesting the withdrawal of this evidence, was refused.
    The defendant submitted the following points, to which are appended the answers of the court:
    1. The court is respectfully requested to withdraw from the jury all evidence relative to any of the alleged payments, contributions or promises made .by defendant to procure his nomination as sheriff, and to instruct the jury to wholly disregard the same, and that their verdict must be not guilty upon the last count of the indictment.
    Ans. “Refused.”
    2. That in this case the Commonwealth is required to prove by the oaths of two witnesses, or by the oath of one witness and corroborative facts equal to the oath of another witness, each specific, corrupt promise, payment or contribution which they charge the defendant with having made or paid, and that it is not sufficient to prove one corrupt act by one witness, and another corrupt act by another witness.
    Ans. “Affirmed as explained in general charge.”
    In the general charge, the court, niter alia, said:
    “ The case you were sworn to try i®he prosecution by the Commonwealth v. George A. Williams, aBM-ging him with corruptly violating the organic law of this Con^Mtowealth. * * * The allegations on the part of the CommonweaMLpn the one hand, and on the part of the defendant on the othe^Rnd, form the issue you were sworn to try and determine from t’iHievidence in the cause, and the law as laid- down to you by theHurt for your guidance. ***** Now, you will determine ho^Kie issue in this case, is from the evidence in the cause, hav® regard to the law given by the court. * * * The learned co®sel for the defendant contends that this organic law was not inteBded to apply to individuals, but only to combinations of parties^ud owners of- manufacturing establishments; but I am constrained to say such is not the true meaning of the law. I instruct you that this organic law is intended to apply not only, as is contended by the learned counsel, to combinations of persons and owners of manufacturing establishments, but also to individuals.
    “ * * * Here I remark that some of the witnesses, perhaps one or more, spoke of having to go to electioneer; some called it to work for the defendant, but Webster thus defines the word, ‘Electioneer,’ to make interest for a candidate at an election; to use arts for securing the election of a candidate. Here I remark, if you find from the evidence in the cause, that the defendant did pay or contribute, or promise to pay or contribute, either directly or indirectly, any money or valuable thing to procure his election, except for necessary and proper expenses expressly authorized by law, if you so find, then the law presumes it was done knowingly and wilfully. So you observe, if you find from the evidence in the cause that the defendant did as charged in the bill of indictment, pay or contribute, or promise to pay or contribute, either directly or indirectly, any money or other valuable thing to any elector who was called and testified in this case for his vote, or for the purpose that such elector should make interest for the defendant when he was a candidate before his election, arid before he took his oath of office; or in other words, if he did pay or contribute, or promise to pay, such elector, either directly or indirectly, any money or other valuable thing for his vote, or for the purpose that the elector should use arts for securing the election of the defendant as a candidate for sheriff of this county, if you find this to he true from the evidence in.the cause, then your verdict should be that of guilty, in manner and form as he stands indicted, in the first and second counts of the indictment. •
    “ Here I instruct you, that it is a general rule that the testimony of a single witness is insufficient to convict on a charge of perjury, and there must be such other circumstantial evidence of facts as is equal to another witness. Such corroborative facts, proved by other witnesses as is equal to a second witness. If other material facts and circumstances be pro^^by other witnesses in confirmation of the witness who gives the^Hfct testimony of perjury, it is sufficient ; some other indeperifiSHmdence, equal to another witness, should be produced. > ^
    “ I am asked by the learned counsel for the defendant to instruct you that such rule must? be observed,-respecting each specific corrupt promise, payment /or contribution charged, and that it is not sufficient to prove one corrupt act by one witness, and another corrupt act by another witness. This request, as I understand it, I cannot sustain. /
    “You will consider well and carefully all the evidence in the case, and ferret out the plain, naked truth ; and, as you find the truth, one way or the other, so. should be your verdict. You are to follow in the light of the evidence, and determine from the evidence, and from it alone, the issue in the cause.”
    Verdict, “guilty in manner and form as he stands indicted.” The court afterwards overruled a motion in arrest of judgment, and sentenced the defendant to pay a fine of $100 to the Commonwealth, the costs of prosecution, and to undergo an imprisonment in the Western Penitentiary for two years and one month.
    The defendant took this writ, and, inter alia, made the following assignments of error: 7. The order sustaining the challenge to the array; ordering a venire and appointing the elisors. 8. The precept to the elisors. 12. The refusal of defendant’s first point. 18. The answer to his second point. 14. The portion of the charge set forth above. 15. The overruling of the motion in arrest of judgment, and 16. The sentence.

      J. H. McCain, F. Mechling and J. Gilpin, for plaintiff in error.
    The Commonwealth cannot challenge a grand juror in any other manner than a private person, and the defendant cannot examine grand jurors on their voir dire as to the alleged cause of challenge. The jurors should have been taken from the jury-wheel and not selected by the elisors. The evil of such a course is manifest in this case, where the elisors went to a hotel, which was the Democratic headquarters, and from the registry of the hotel and those standing around selected the panel.
    The defendant, Williams, could get from the indictment not a scintilla of information as to what act or words, done or uttered (during the campaign two years previously), the Commonwealth complained of. No person’s name, save that of himself and of the recorder before whom he was sworn, is mentioned in the indictment from its caption to the signature of the district attorney. It nowhere states what he paid or gave, promised to pay or give, whether money, chattels, lands or appointments, or how the election laws or the constitution was violated.
    In the construction given to art:- 7 of the constitution and to the Act of 18th April 3874, which was passed to enforce it, it did not fully state the construction contetó^j| for by the defendant’s counsel, which was and is, that said ;||^He and act were intended to prevent a candidate from purchaswWvi''1h money, promises or contribution, either the votes of electo» from the electors themselves; as, for instance, going to one and offering .or paying him so much money to vote for the candidate, or the control of votes; that is influence; as for instance, the candidate going to the officers of a political club and paying to them money' in consideration of the club and its members voting for him, or going to the officers of a railroad company or other corporation, and in consideration of their compelling their employees, by threats of discharge or otherwise, to vote for him, paying money to said officers, or promising to procure benefits (e. g. beneficial legislation) for the corporation; or going to a manufacturer and paying him money to induce him to use his power, as master over his employees, to induce or compel them to vote for him (the candidate). And that neither the article nor the act was intended to prevent a candidate, say for governor, residing in Philadelphia, and perhaps not personally known in the oil country, who learns that damaging and slanderous reports are being circulated about him in the oil district, which will defeat him unless refuted, and which he can only refute by sending his friend, in whom the oil people have confidence, to personally refute and contradict the stories, from sending such friend, and if necessary, paying him for the time lost, and expenses incurred in going, delaying and returning.
    . A suitor in a court of justice is allowed to pay an advocate to electioneer for him (e. g. use arts, for Gorgias demonstrates that rhetoric is an art) with a jury sworn in the cause. The words for dissemination of information to the public, not dissemination of public information used in the Act of 18th April 1874, wqre doubtless intended to have some meaning.
    Where there are several assignments of perjury in addition to the testimony of a single witness there must be corroborative proof with respect to each: Greenleaf on Evidence, sect. 257.

      J. R. Henderson, District-Attorney, for defendant in error.—
    This is the first indictment under the constitution of 1874, in reference to elections, and demands the most serious attention of the court.
    January 5th 1880.
   Mr. Justice Trunkey

delivered the opinion of the court,

When the case was called for trial, the court sustained a challenge to the array of jurors made by the Commonwealth, and ordered a venire for twenty-four traverse jurors to be immediately summoned from the bystanders, or from the body of the county at large ; and to this action the defendant excepted. In obedience to said order, return was made forthwith, and the cause called for trial, against the defendant’s objection. No argument has been made in support of this unusual, if not unprecedented procedure, other than a reference to the opinion of the court, which rests it on the Act of April 14th 1834, sects. 146,147, Pamph. L. 367. These sections refer to civil cases ; the former providing that when a challenge to the array of jurors shall be made by either party to a cause, and sustained by the court, so that there shall be no jury present legally qualified to try the same, the court shall have power, at the instance of either party, to award a venire returnable forthwith for the trial thereof; and the latter, that every such venire shall be directed to the sheriff or coroner, or if the case, so require, to two elisors, and shall require him or them to summon and return forthwith twenty-four good and lawful men to be jurors in such case, and upon return thereof the trial shall proceed. Section 148 provides that a court having jurisdiction of any criminal cause, shall have the like power, whenever a challenge to the array shall be made by the defendant and sustained by such court, so that no jury shall be present legally qualified to try such cause.” It is plain that the provisions of these sections do not apply in a criminal ease where the challenge is made by the Commonwealth. The first two apply when either party to a civil cause makes the challenge; the last gives like power to courts having jurisdiction of criminal cases, when a defendant’s challenge is sustained. Familiar rules of interpretation forbid extending the last to a case not named therein. Probably the legislature thought there was good reason for not allowing a public prosecutor to come into court, challenge the array of jurors, and immediately force a prisoner to trial before those sélected in absence of all statutory safeguards against packing the jury. It is public policy to prevent delays in trials by trivial objections to the jury, and it may have been believed in the interest of justice to permit a defendant’s challenge to be followed by trial as in civil cases. He takes that risk in making the challenge; yet, I apprehend, few district-attorneys or judges would refuse a continuance until a regular jury could be obtained, if the challenge were not merely for delay, but for meritorious cause.

By section 41 of the Criminal Procedure Act of 1860, it is enacted that all courts of criminal jurisdiction of this Commonwealth shall be and are hereby authorized and required, when occasion shall render the same necessary, to order a tales de circumstantibus, either for the grand or petit jury. This is a summary of much contained in the sections referred to above of the Act of 1834, including also section 145 of said act; but those sections are not repealed. By itself, the summary authorizes the calling of talesmen in no case when a venire has not been issued and returned with a panel of jurors present. A tales, by its very name, signifies a returning of so. ma-ny as will make up the full complement ; and, therefore, it is not granted where there is a total default, but only where the number is deficient: 1 Chit. Cr. L. 518. The first process for convening the jury is the venire facias, and thereupon then issue the habeas corpora and distringas juratores. If all the jury do not attend, or if so many be challenged and drawn that there do not remain a sufficient number to make a jury, there are at common law the writs of undecim, decern, or octo tales, according as the number was deficient, or by statute, the plaintiff may pray a tales de cireumstantibus to prevent the delay of the decern tales: Bacon’s Ab. tit. Juries, C. But if the whole of the jury be challenged off, then a new venire facias, and if none appear, then a distringas juratores shall issue and no tales: Id. B. 2.

By the statutes of this state, ample provision is made for the impartial selecting, summoning and returning of jurors in the courts of criminal jurisdiction. The Court of Quarter Sessions has power, whenever the public business shall require it, to fix adjourned or special courts for trial of criminal cases; but if this were not so, and if a cause be continued it cannot be tried till the next term, there is no authority for calling a jury forthwith from bystanders, or the body of the county, to try a prisoner who has not challenged the array. Both letter and spirit of the statutes secure to persons charged with crime a trial when a regular panel of jurors is in attendance, and only for deficiency in the number can talesmen be called. When the array is quashed there is no jury — that is no more a necessary occasion to order a tales de cireumstantibus than it would be had none been drawn, summoned and returned. “ The next desideratum to the pure administration of justice is the giving satisfaction to the suitors, that their causes have been fairly and impartially decided.” Were a man, holding an office, indicted for perjury in his official oath, in that he had falsely sworn that he had not paid money or other valuable thing to procure his election except as expressly authorized by law, brought to trial before a jury not selected, drawn and returned as the law provides, but selected and summoned by a sheriff, coroner, or two citizens on the day of trial, who returned a panel of which four-fifths were the names of his political opponents, including that of the defeated candidate for the same office, no matter if his guilt were clearly proved, he would naturally feel that his conviction was an outrage done in the name of justice. Such cases, and even worse, might arise if the law permitted the Commonwealth’s counsel to challenge the array of jurors and, upon it being sustained, to forthwith compel the defendant to go to trial with a panel selected from the spectators and persons attending the court. The seventh, eighth, fifteenth and sixteenth assignments are sustained.

It is a general rule that the testimony of a single witness to the falsity of the matter on which the perjury is assigned, is insufficient to convict on a charge of perjury. Two witnesses are not essentially requisite, for if any material circumstance be proved by other witnesses in confirmation of the witness who gives the direct testimoney of perjui’y, it may turn the scale and warrant a conviction. “ When there are several assignments of perjury, it does not seem clearly settled whether in addition to the testimony of a single witness there must be corroborative proof with respect to each, but the better opinion is that such proof is necessary, and that, too, although all the perjuries were committed at one time and place: 1 Greenlf. Ev., sect. 257, a. Thus, A., in an affidavit, stated that he had paid all the debts proved under his bankruptcy, except two; on an indictment for perjury on this affidavit, one of the assignments was that A. had not paid all the debts proven except two, and another that certain other creditors were not paid in full; in support of the indictment several creditors were called, who each proved the non-payment of his own debt: Held, that this was not sufficient to warrant conviction, and that as to the non-payment of each debt, it was necessary to have the testimony of two witnesses or of one witness, and some circumstance to supply the place of a, second witness: Regina v. Parker, 1 C. & M. 639 (41 E. C. L. R. 346); see 2 Rus. on Cr. 654. The weight of authority and the general rule require that where an indictment contains several assignments of perjury, in order to convict on any one, there must be either.two witnesses or one witness, and corroborative evidence to negative the truth of the matter in such assignment. The defendant’s second point was affirmed as explained in the general charge. The explanation ought to have been that the Commonwealth is required to prove by two witnesses or one witness, and corroborative evidence, at least one corrupt payment, contribution or promise which the defendant is charged with having made or paid; and, though each of several of such acts be proved by a single witness, if none be proved by two witnesses or by one witness, and corroborative proof of circumstances, there could not be a conviction. We think the learned judge so intended; yet it is urged that he permitted the jury to treat the several acts as corroborative of each other — they should have been clearly instructed that proof of a corrupt act by one witness was not corroborative evidence of another which was proved by a different witness.

In reference to defendant’s first point, it is only necessary to say that the word “ refused” seems to be a mistake, for it is affirmed in the charge, the court saying, “you will discard any evidence that was given on that count as Avithdrawn from your consideration, and confine your deliberations to the first and second counts, and the evidence on those íavo counts.”

The indictment is sufficient under the Criminal Procedure Act, and the motion to quash was rightly refused. It does not furnish sufficient information to enable the defendant to prepare his defence, and this may often occur where the law declares an indictment good, “ which charges the crime substantially in the language of the Act of Assembly prohibiting the crime, and prescribing the punishment, if any such there be, or, if at common law, so plainly that the nature of the offence may be easily understood by the jury.” Prior to 1860, when greater particularity was required in setting out the offence in the indictment, it sometimes failed to give the defendant such notice as he was entitled to, of the specific matters which would be attempted to be proved against him on the trial. Whenever such is the case, the accused may apply to the court or judge for an order that a bill of particulars be filed, and on the trial the Commonwealth will be restricted to the proof of the items contained therein: Rex v. Hodgson, 3 C. & P. 422; Rex v. Bootyman, 5 Id. 300; Commonwealth v. Snelling, 15 Pick. 321. Doubtless, had the defendant made application, a bill of particulars would have been ordered. In simplifying indictments, it was not the intendment to make their brief and comprehensive terms a cover for snares to be sprung on the accused. Whether a refusal to order the bill would be a subject of review, is a question not now raised.

Only one other point, which is in the fourteenth assignment, requires notice. The court was right in ruling that the Act of 1874 applies not only “to combinations of persons and owners of manufacturing establishments; but also to individuals;” and that if the defendant paid or contributed, or promised to pay or contribute, either directly or indirectly, any money or other valuable thing to any elector for his vote or influence, he Avas guilty. But not resting there, it was also held that if he so paid or promised to any one to electioneer for him, that was a violation of the statute; and the word electioneer was defined: “ to make interest for a candidate at an election ; to use arts for securing the election of a candidate.” Art. 7 of the constitution requires an officer, before entering on the duties of his office, to take an oath containing, inter alia, “I have not paid or contributed, or promised to pay or contribute, either directly or indirectly, any money or other valuable thing to procure my nomination or election (or appointment), except for 'necessary and proper expenses expressly authorized by law; that I have not knowingly violated any election law of this Commonwealth, or procured it to be done by others in my behalf.” Sect. 9 of art. 8 imposes severe disabilities on “ any person who shall, while a candidate for office, be guilty of bribery, fraud or wilful violation of any election law.” The Act of 1874, sect. 36, Pamph. L. 64, authorizes a candidate to pay or contribute as follows: “ 1. For printing and travelling expenses; 2. For dissemination of information to the public; 3. For political meetings, demonstrations and conventions;” and sect. 87 declares that “nothing contained in this act shall be so construed as to authorize the payment of money or other valuable thing for the vote or influence of any elector, either directly or indirectly, at primary, township, general or special elections, nominating conventions, or for any corrupt purposes whatever incident to an election.” Both the organic law and the statute strike at bribery, fraud and every corrupt act incident to an election, but leave the candidate free to use all honest means for the success of his party and promotion of his own election. He may disseminate information to the public respecting affairs of state, the principles, the purity and the corruption of the several political parties, and the merits and demerits of candidates; and in so doing he may use every honorable art of persuasion, eloquence and reasoning. These are lawful, are within the very life of free government, and are not forbidden to a candidate, though they make interest for him at an election. The statute carries its own interpretation. In comprehensive terms’it expressly authorizes payments and contributions by candidates for printing, travelling expenses, dissemination of information to the public, political meetings, demonstrations and conventions, and excepts out every direct and indirect purchase of the vote or influence of an elector, and every act for any corrupt purpose whatever incident to an election. What is clearly embraced within those terms and not excepted therefrom, is lawful. Interest may be made for a candidate without taint of corruption. Art may be used in securing his election, with pure motive and patriotic purpose. The statute forbids the perversion of art, not its use. We are, therefore, of opinion that it was error to unqualifiedly charge, that if the defendant paid or contributed, or promised to pay or contribute, either directly or indirectly, any money or other valuable thing, to an elector, “for the purpose that such elector should make interest for the defendant when he was a candidate before his election,” * * * “or for the purpose that the elector should use arts for securing the election of the defendant as a candidate for sheriff,” then the verdict should be guilty. However, where the evidence requires, such instruction ought to be given, with the addition that the jury also find the elector’s influence was purchased, or that he was to make interest by bribery, fraud or other illegal means, or that he was to use wicked and corrupt arts in securing the election of the candidate.

Judgment reversed, and the record, with this opinion, setting forth the causes of reversal, is remanded to the Court of Quarter Sessions of Armstrong county, for further proceeding.


text:
    Kuhns et al. versus Bowman.
    K. brought ejectment against B. in 1869, and obtained a verdict in his favor on November 29th 1876, upon which judgment was entered January 20th 1877. On the 14th of October 1876, B. brought an action of trespass quare clausam fregit against K., and in March 1877 brought a second action of ejectment against K. This latter action and the trespass were tried together before the same jury. The court charged the jury that if they found in favor of B., in the action of ejectment, to also find a verdict in his favor for nominal damages in the action of trespass, and added, “ both stand or fall together, as far as any contested question in the causes you are sworn to try are concerned.” Held, that this was error, and there should have been no recovery in the action of trespass, as K. by his judgment in the ejectment entered January 20th 1877, acquired a conclusive right against B. to recover mesne profits for the length of time that action of ejectment was pending. ’
    October 31st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Trunkey and Sterrett, JJ. Paxson and Green, JJ., absent.
    Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1879, No. 187.
    Trespass quare clausum fregerunt by Adam D. Bowman against. John Kuhns, Sr., and his sons.
    The material facts will be found in the opinion of this court.
    The court below charged the jury as follows :—
    “ Although the fact has not been adverted to during the progress of the trial, yet it is not to be overlooked by the jury that you are sworn in two separate actions, which invites separate verdicts at your hands. The one is an action of ejectment brought to recover the premises described in the writ, and the other an action of trespass brought to recover damages for alleged entries upon the premises by the defendants. In the first action, Adam D. Bowman is plaintiff and John Kuhns is defendant, and in the last action there is the same plaintiff and John Kuhns, Sr., John Kuhns, Jr., - Henry Kuhns and Joseph Kuhns are defendants. [It may be said in general, that in the event of your finding a verdict in favor of the plaintiff in the first action, then under the same evidence, and if you credit the additional testimony of one witness as to cutting timber on the disputed tract, you will also find a verdict for merely nominal damages in favor of the plaintiff in the second action. In other words both actions stand or fall together, as far as any contested question in the causes you are sworn to try is concerned.”]
    Verdict for plaintiff, when defendants took this writ, and alleged that the court erred in the portion of the above charge included in brackets.

      H. P. Laird, for plaintiff in error.
    The recovery by John Kuhns in the action of ejectment to May Term 1869, which was pending until the 20th of January 1877, when judgment was entered on the verdict rendered on November 29th 1876, was conclusive that he could commit no trespass in 1876 on this land, for which damages could be recovered in an action of trespass quare clausum fr eg erunt, brought on October 14th 1876. The judgment was- conclusive of Kuhns’s right to possession and to mesne profits: Drexel v. Man, 2 Barr 271; Barnes v. Dean, 5 Watts 543; Shoenberger v. Barker, 10 Harris 404; Lane v. Harrold, 22 P. F. Smith 267.

      H. D. Foster, H. C. & J. A. Marchand, for defendant in error.
    Kuhns, although he had an action of ejectment pending at the time the trespass was committed, had no right to enter upon the possession of Bowman and commit a trespass. He had a right after his recovery in the ejectment to issue a habere facias possessionem, and until that was done he had no right to enter on the land and commit a trespass against Bowman’s actual possession.
    January 5th 1880.
   Mr. Justice Mercur

delivered the opinion of the court,

This was an action of trespass, quare clausum fr eg erunt. The case presents a single question. The facts necessary for an understanding of the case are these: In March 1869, John Kuhns, the plaintiff in error, brought an action of ejectment against the defendant in error for the land on which this alleged trespass was committed. In November 1876, he recovered a verdict for the land, and judgment thereon was duly entered. During the pendency of that action, in October 1876, the defendant in error brought this action of trespass against Kuhns and his sons, who were acting under him, for alleged trespass committed in September previous on the same land. In March 1877, the defendant in error also brought an action of ejectment against said Kuhns for the same land. Both cases were tried together before the same jury. The learned judge charged the jury substantially, that if they found in favor of the plaintiff below, in the action of ejectment, to also find a verdict in his favor for nominal damages in the action of trespass, and added, “ In other words, both stand or fall together, as far as any contested question in the causes you are sworn to try is concerned.” This charge is assigned for error.

A consideration of this assignment involves an inquiry into the effect to be given to the verdict and judgment procured by Kuhns. That the recovery was no bar to a second action of ejectment for the same land is well recognised; but the present question is, what was its effect as to the right of the plaintiff therein to recover mesne profits. That he might have recovered them at the same time he recovered in the ejectment, on his giving due notice of his intention to claim them, must be conceded. Failing to so do, the verdict and judgment were conclusive evidence of his right to mesne profits from the time of the commencement of the suit until the judgment, unless the defendant left the possession after service of the writ, which is not pretended in this case. This conclusive effect is declared by numerous English and American authorities. We will content ourselves by citing two of our own cases, in which many of the authorities are collected. They are Man v. Drexel, 2 Barr 202, and Drexel v. Man, Id. 271. So conclusive is a verdict and judgment of the right to mesne profits, that in this last case it was held, though the defendants’ title be established by two verdicts and judgments between the same parties and on the same title, one of which was prior, and the other subsequent to the time for which the recovery of mesne profits was sought, yet they constituted no bar to a recovery for the time covered by the immediate action of ejectment. Thus, under the well-settled rule of law, Kuhns acquired a conclusive right against the defendant in error to recover mesne profits for the length of time that action of ejectment was pending. The latter now claims to recover of the plaintiffs in error for damages done by them to the land during the same time. If the defendant in error had done in September 1876, the identical act of which he now complains, he would have been unquestionably liable in damages therefor to Kuhns. It cannot be that he can now recover in trespass against the plaintiffs in error for that act. To so hold would fritter away the substantial right to recover damages which Kuhns acquired by his recovery in ejectment. The learned judge erred in holding that both actions stand or fall together. There should have been no recovery in this action of trespass.

Judgment reversed and a venire facias de novo awarded.