author: Mr. Justice Gordon

text:
    Hays et al. versus The Commonwealth ex rel. McCutcheon.
    1. Sect. 4, article 16, of the new constitution, which provides that, “ In all elections for directors or managers of a corporation, each member or shareholder may cast the whole number of his votes for one candidate, or distribute them upon two or more candidates as he may prefer,” does not apply to a corporation that existed prior to the adoption of the new constitution, that has not since accepted the benefits of any legislation under said constitution, and whose charter contained the following provision, “ at all general meetings or elections by the stockholders, each share of stock shall entitle the holder thereof to one vote.”
    2. It seems that charters of private corporations are left exactly as the new constitution found them, and so must remain until the companies holding them shall enter into a new contract with the state, by accepting the benefit of some future legislation.
    3. The system of cumulative voting discussed.
    October 81st 1876.
    Before Agnew, C. J., Sharswood, Mbrcur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to tbe Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1876, No. 197.
    This was an application by the Commonwealth, on the relation of J. 0. McCutcheon, for a quo warranto, requiring M. D. Hays and others to show by what warrant they exercised the offices of President and Directors of the Pittsburgh and Castle Shannon Railroad Company, and excluded the relator from the office of director.
    The railroad company was incorporated September 21st 1871, under the provisions of the Act of 4th of April 1868 (Pamph. L. 62), and a special act approved the 21st of April 1872. On the 15th of February 1876, a president and board of directors were elected. It appeared that at this election some of the stockholders claimed the right to cast the whole number of their votes for one candidate, or to distribute them upon two or more, conformably to the following provision of section 4, article 16, of the new constitution : “ In all elections for directors or managers of a corporation, each member or shareholder may cast the whole number of his votes for one candidate, or distribute them upon two or more candidates, as he may prefer.”
    At this election one of the candidates for director was the r.elator, who alleged that he had received 5188 single votes, each representing one share of stock, and 19,359 votes cast upon the cumulative system provided for in the above section of the constitution, and that James McQuiston, voted for at the same time, and who was returned elected, had only received 6660 votes, of which 500 were cast for him upon the cumulative system, and 6163 by single votes, one for each share of stock, and claiming therefore that the relator was elected. McQuiston, it appeared, had received the smallest number of votes of those declared elected.
    Upon a petition setting forth the foregoing facts, the quo warranto issued, and the respondents in their answer averred that at said election no votes cast upon the cumulative plan had been received by the tellers, although some had been offered; that the election was conducted under the following provision of the charter of the company: “ At all general meetings or elections by the stockholders, each share of stock shall entitle the holder thereof to one vote, and each ballot shall have endorsed thereon the number of shares thereby represented;” that the election on the 15th of February was a general election and regulated by said provision; that the corporation was in existence prior to the adoption of the new constitution, and had not in any way accepted the benefits of said constitution, or received or accepted the benefits of any legislation by a general or special law since its adoption, nor has the legislature in any manner changed the provisions of its charter, and that therefore section 4 of article 16 of said constitution did not apply to said corporation, or authorize any stockholder to vote otherwise than provided for in the above-mentioned provision of the charter.
    To this answer the Commonwealth demurred, and after argument the court entered judgment upon the demurrer, ousting McQuiston and declaring MeCutcheon duly elected a director of the company.
    This action of the court was assigned for error.

      D. T. Watson, for plaintiffs in error. —
    A statute should be interpreted to operate prospectively only unless the language is so clear as to preclude all question as to the intention of the legislature: Taylor v. Mitchell, 7 P. F. Smith 209, and cases cited. The constitution is .construed by the same rule. Sect. 4, art. 16, of the new constitution clearly has no express words making it retroactive, and there is certainly no necessary implication that it is meant to be retroactive. Nor does the context favor this view. Sect. 2' says: “ The G-eneral Assembly shall not remit the forfeiture of the charter of any corporation now existing, or alter or amend the same, or pass a)ny other general or special law for the benefit of such corporation, except upon condition that such corporation shall thereafter hold its charter subject to the provisions of the constitution.” Why was this section inserted if the constitution, proprio vigore, applied to and governed corporations already in existence ? Sect. 10 of article 16" provides, “ No railroad, canal or other transportation company in existence at the time of the adoption of' this article shall have the benefit of any future-legislation by general or special laws, except upon condition of complete acceptance of all the provisions of this article.” Why this section, if, ipso facto, on the adoption of the constitution it applied to pre-existing corporations? Sect. 2 of the schedule is : “ All laws in force in this Commonwealth at the adoption of this constitution not inconsistent therewith, and all rights, actions, prosecutions and contracts shall continue as if this constitution had not been adopted.”
    That the grant of the charter by the state to the Castle Shannon Company, for which the company paid a bonus and tax, as set forth in. the answer, is a contract, no one since the Dartmouth College case will attempt to deny: Trustees of Dartmouth College v. Woodward, 4 Wheat. 518. This- state has recognised and approved that doctrine: Dugan v. Bridge Co., 3 Casey 303; Iron City Bank v. Pittsburgh, 1 Wright 340.
    The amendment of 1857 to the old constitution provides that “the legislature shall have power to alter, revoke or annul any charter of incorporation hereafter conferred by or under any special or general law, whenever in their opinion it may be injurious to the citizens of the Commonwealth; in such manner, however, that no injustice shall be done to the corporators.” It is only then the legislature of the state with whom the power- is lodged to “alter, revoke or annul” charters, and it can only be exer-, cised in such shape as to do the corporators no injustice. Here every stockholder bought on the faith of one share of stock having one vote. A. purchases more than one-half the stock, and therefore controls the company. What right, with no provisions for his indemnity, have the people to give the minority power to change the result?

      A; M. Brown, for defendant in error,
    referred to Commonwealth ex rel. C. Donnelly et al. v. Lintsman et al., 23 Pittsburgh Legal Jour., March 22d 1876, 122, wherein Sterrett, P. J., ably discussed and determined the question presented in this case. The debates of the constitutional convention show that section 4, article 16, was intended and understood to embrace all corporations, both old and new. An Act of Assembly which operates merely upon the remedy, and not upon the right, is not unconstitutional. Therefore the legislature may pass retrospective laws, such as in their operation may affect suits pending, and give to a party a remedy which he did not previously possess, or modify an existing remedy or remove an impediment in the way of legal proceedings: Schenley v. Commonwealth, 12 Casey 29; Marshall v. Allegheny City, 9 P. F Smith 455-462 ; Cooley on Constitutional Limitations 361. Any rule or regulation in regard to the remedy which does not, under pretence of modifying or regulating it, take, away or impair the right itself, cannot be regarded as beyond the proper province of legislation: Id. 362.
    ■ The constitutional provision under consideration is a mere regulation of the right of suffrage in its application to the government of corporations, and mainly intended, as constitutional provisions generally are, for the protection of minorities. It deprives no one of a vested right, jbut grants to each and all equal privileges and equal rights as to the mode of voting. It give's the stockholders of corporations the right to vote just as many shares as they voted before the adoption of the new constitution, by the terms of their several acts of incorporation, reserving the power to cumulate as is provided for in this section.
   Mr. Justice Gordon

delivered the opinion of the court, January 2d 1877.

But a single question is presented for our consideration. Does section 4, article 16, of our new constitution apply to the corporation known as the Pittsburgh and Castle Shannon Railroad Company ? That section reads thus : “ In all elections for directors or managers of a corporation each member or shareholder may cast the whole number of his votes for one candidate, or distribute them upon two or more candidates, as he may prefer.” This section is understood to confer upon the individual stockholder the right to cast all the votes which his stock represents, multiplied by the number of directors or managers to be elected, for a single candidate, should he think proper so to do. Though from this section, as originally proposed, words nearly similar to those we have used, were stricken out, yet we have no doubt we have in -our statement embodied the intention of the convention. If, indeed, we do not, in this manner, reach the meaning of this part of the constitution, it has none; for it would be a. vain thing to propose to confer a power upon members of a corporation which they already possessed. Adopting this interpretation as the true one, and we must concede that the intent was to work a radical change in the method of conducting corporate elections. The importance of this innovation is not to be underrated in the face of the very significant fact that it was thought worthy of a place in the supreme law of the state, and thus placed beyond the power of legislative interference. Applying this rule to the Pittsburgh and Castle Shannon Railroad Company, let us observe its effect. This company was incorporated on the 21st of September 1871, in accordance with the provisions of the Act of April 4th 1868 (Pamph. L. 62); among other provisions of its charter is this one: “At all general meetings or elections by the stockholders, each share of stock shall entitle the holder thereof1 to one vote.” Of course this means one vote for each officer to be elected, as it means one vote on each resolution that may be pro-' posed at any general meeting. Thus, a stockholder, owning one share, would have one vote for each of the ten directors. If, however, we annul this provision of the charter, and substitute the constitutional provision above referred to, this shareholder will have ten votes for any one of the ten candidates for the office of manager, whom he may choose to select, or five for each of any two he may so choose. Thus, those holding a minority of the shares of the stock of this corporation would be enabled to do what under the charter is impossible, to wit, to elect, in spite of the majority, one or more of the managing officers. Now, whilst it cannot be said that this would not be an alteration in the terms of this charter, it is nevertheless urged that it is a mere regulation of the right of suffrage in corporations, but affects the vested rights of no one. PBut if it be not a vested right in those who own the major part of the stock of the corporation, to elect, if they see proper, every member of the board of directors, then I would like to know what a vested right means. This was part of the contract under which they entered into the company, and for which they paid their money.- The compact was, that they should have the power to select those who should have the management and control of the funds which they adventured in this enterprise. If, indeed, it be admitted that the minority in a board of directors amounts to nothing, the above stated proposition would be admissible, but we cannot seriously entertain such an idea, for it was just because such a minority does amount to something, and because it often can control, or modify, the acts of a majority, that the introduction of the constitutional provision under discussion was thought necessary. The framers of this part of our constitution were no neophytes in legal science, but masters and teachers, who well knew what, they were about, and that they intended to introduce a radical change in the law governing corporations is not doubtful. But when we have come to this conclusion we have reached the turning point of this' case/for if the' charter method of voting be a material part of the organic law of the company, it follows, that the constitutional convention, even had it so intended, could not alter that method./ In the case of the Iron City Bank v. Pittsburgh, 1 Wright 340, this matter is carefully considered in an elabprate opinion by Justice Woodward, in which, after citing the case of the Trustees of Dartmouth College, 4 Wheat. 518, wherein it was held that the royal charter granted to the trustees of that college before the revolution, was a contract within the meaning of the Constitution of the United States, and that an act of the legislature of New Hampshire altering the charter, without the consent of the corporation, was an act impairing the obligation of a contract, and therefore unconstitutional and void, he says, that this' decision, though often questioned, has been generally followed, and that the doctrine therein stated may now be regarded as the settled rule of law of every state in the union.

This authority is supported by the cases of the Bank of Pennsylvania v. The Commonwealth, 7 Harris 144, and the Commonwealth v. The Pittsburgh and Connellsville Railroad Co., 8 P. F. Smith 26. So we may take it as settled that the charter of a company is such a contract as cannot be impeached by state authority, except for proper cause shown. It is said, however, that by the amendment of 1857 the legislature has the power to alter or revoke the charter' of this corporation. Be it so; it may be an answer to say, that a constitutional convention is not the legislature in the meaning of that amendment. If, however, it were such it could only make such alteration or revocation when it was made to appear that the charter in the part proposed to. be revoked or altered was “ injurious to the citizens of the Commonwealthfor the legislature cannot act arbitrarily in a matter of this kind, and impose its own will as the ultima ratio. In the case last above cited, Mr. Justice SharsWOOD sets it down as a rule settled not only by judicial but legislative authority that the legislature is not the final judge of whether the casus foederis, upon which the authority to repeal is based, has occurred. As there is in this case no allegation of a breach of any • condition under which the Pittsburgh and Castle Shannon Railroad Company accepted its charter, or that that charter is in any particular obnoxious to the welfare of the citizens of this Commonwealth, it cannot be successfully urged that it may be revised or abrogated by any state authority whatever. But the constitutional convention claimed for itself no such power; on the other hand, it has expressly set down (art. 2- of the schedule) that all rights, actions, prosecutions and contracts shall, continue as if the constitution had not been adopted. And by the 2d section of the 16th article, it is manifest that the convention did not intend to subject any private corporation to any of the provisions of the constitution which might in any degree change the charter thereof. If otherwise, why say: “The (General Assembly shall not remit the forfeiture of the charter of any corporation now existing, or alter or amend the same, or pass .any other general or special law for the benefit of such corporation, except upon the condition that such corporation shall thereafter hold its charter subject to the provisions of this constitution.”

This section is so comprehensive and clear that nothing is left for surmise or doubt. Charters of private corporations are left exactly as the new constitution found them, and so they must remain until the companies holding them shall enter into a new contract with the state by accepting the benefit of some future legislation. It is •only on the theory that the manner of voting is not material that the cumulative system is sought to be saddled on this corporation; but if this company does not hold its charter subject to the provisions of the present constitution, how can it be made subject to any one of such provisions, material or immaterial ? It is indeed manifest that such an argument is foreign to the question in hand. It might apply to a legislative enactment attempting to alter this charter, but it cannot apply to this case, arising, as it does, directly on the constitution itself, for it is excluded by the very terms of that instrument. The judgment is reversed.

Mr. Justice Woodward dissented.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Schmidt & Friday’s Appeal.
    1. A judgment was entered by the prothonotary in pursuance of the terms of a judgment note for real debt, with costs of suit and attorney’s commissions of five per cent. Execution issued for real debt, interest and costs, and “attorney’s commissions, five per cent., $300,” which last was endorsed upon the back of the writ. Defendant’s real estate having been sold under the execution, a subsequent judgment creditor contested the payment out of the proceeds of the $300 commissions. Held (reversing the court below), that the attorney’s commissions being a part of the judgment, their endorsement on the writ while informal was not material, and real estate having been sold in satisfaction of the judgment of which the commissions formed a part, they should be paid out of the proceeds.
    2. McAllister’s Appeal, 9 P. E. Smith 204, distinguished.
    October 31st 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1876, No. 154.
    This was the appeal of Schmidt & Friday, from a decree of the court disallowing attorney’s commissions.
    The proceedings were these:—
    Schmidt & Friday, who were the holders of a judgment note of Marker Rush for $6000, filed the same in the office of the prothonotary, and he, at their instance, entered judgment thereon in the following form:—

      “D. S. B. $6000, interest from May 13th 1875. And now, May 13th 1875, a single bill filed, dated May 12th 1875, payable one day after date, and judgment entered thereon against the defendant for the sum of six thousand dollars, with costs of suit and an attorney’s commission of five per cent., waiving inquisition, condemnation and exemption.”
    On the 15th of December 1875, the attorneys of appellants caused a writ of fi. fa. to be issued on this judgment, which had, inter alia, this endorsement:—
    “ Att’s com. 5 per cent., .... $300.00”
    By virtue of this writ the sheriff levied upon the real estate of Rush, and sold it on the 8th of January 1876, to Schmidt & Friday for $8100, and in the special return made by the sheriff was this clause:—
    “To costs on this writ (which includes an attorney’s commission of $300), .... $398.70”
    To this return William Suiram, a lien creditor of Rush, excepted, alleging that the sheriff erred in applying the sum of $300 to the payment of five per cent, attorney’s commissions.
    The court (White, A. J.) sustained the exceptions and disallowed the $300 commissions, under the decision in McAllister’s Appeal, 9 P. F. Smith 204.
    From this decree this appeal was taken.

      A. M. Brown and John S. Larnbie, for appellants. —
    The decree of the court below is not sustained by McAllister’s Appeal, 9 P. F. Smith 204, and is at variance with the uniform practice of the state. The decision of this court in McAllister’s Appeal establishes the right of a contract for attorneys’ commissions in such cases, and expressly recognises the propriety of a reasonable percentage, such as was stipulated for in this case. There had been no trial here, as in Mahoning County Bank’s Appeal, 8 Casey 158. Had defendant paid the debt before execution, no commission would have been earned or collected, but failing to pay, and being in default for months, the plaintiffs employed attorneys and proceeded to collect their debt, interest, attorneys’ commission and costs, and the execution went out with the commission, liquidated at $300, as part of the judgment and not as costs. It is true the sheriff unnecessarily connected the costs and attorneys’ commission in making his special return, but that simple irregularity should not defeat the legal right of the plaintiffs.

      David Beed, for appellee. —
    When the appellee examined the judgment docket and schedule of liens, he found nothing to give him notice of appellants’ claims to commissions. The first information he had of the claim to these commissions was long after the sale, and not until the sheriff made his special return. Attorneys’ commissions are no part of the costs. They are not given by any statute. It is no more than an agreement by the debtor to allow the party, to whom the judgment is given, commissions to compensate him for what he may possibly be compelled to pay to an attorney for the collection of his claim. If this be so, why should he not follow his warrant of attorney and liquidate the commissions in the judgment rendered ? The judgment then would be notice to subsequent lien creditors of the amount of antecedent encumbrances. The Act of February 24th 1806, Purd. Dig., p. 826, § 32, empowers the prothonotary to confess judgment for the amount which, from the face of the instrument, may appear to be due, and the defendant shall not be compelled to pay any costs or fee to the plaintiff’s attorney when judgment is so entered. This prohibition certainly would prevent the prothonotary from taxing on the writ, and the sheriff from collecting as costs any fee or compensation for the plaintiff’s attorney. The authority given by Rush was to confess judgment for the debt and commissions ; but instead of liquidating the commissions as part of the judgment, they were taxed upon the writ of execution. This case is governed by Mahoning County Bank’s Appeal, supra. In that case as in this, the attorney’s commissions were endorsed upon the writ; they formed no part of the judgment! The court there held that the judgment was a unit; that it cannot exist in distinct parts at one and the same time, so as to enforce the collection of these commissions by execution, when they are no part of the judgment, but simply endorsed on the back of the execution. In McAllister’s Appeal it was ruled that the attorney’s commissions, being no part of the judgment in favor of the plaintiff, there was no power to enter a separate judgment in favor of the attorney. As in this case, the judgment was there confessed for the debt, with attorney’s commissions, and these commissions were endorsed on the writ of execution.
   Mr. Justice Paxson

delivered the opinion of the court, November 13th 1876.

This record presents the single question whether the appellants were entitled to receive out of the proceeds of the real estate sold under their execution the sum of three hundred dollars, attorney’s commissions, as against a subsequent lien-creditor. The judgment of the appellants was entered by the prothonotary for the sum of $6000 real debt, with costs of suit and an attorney’s commission of five per cent. The execution of the appellants was issued for $6000, interest and costs, and “attorney’s commission, five per cent., $300.” The latter was endorsed upon the back of the writ. The learned judge of the court below, upon the 'authority of McAllister’s Appeal, 9 P. F. Smith 204, held that the appellants were not entitled to the $300, and awarded it to the appellees, who were the next lien-creditors. The appeal in the case cited was taken by the attorney to the decree of the court disallowing the attorney’s commissions. It was held by this court that he had no standing; that the commissions were included in the judgment of his client, and that the appellant had no authority to confess a separate judgment for the commissions, and had in fact confessed no such judgment. He had no assignment or order from the plaintiff in the judgpaent, and therefore no title to any portion of its fruits. This was the scope of the decision in McAllister’s Appeal. The doctrine was there asserted upon the authority of Mahoning County Bank’s Appeal, 8 Casey 158, that the attorney’s commissions could not be collected as part of the costs.- In that case the judgment had been liquidated upon a scire facias to revive, and the attorney’s commissions were not included in the judgment. The court said they might have included them, but did not. An attempt was then made to collect the commissions by endorsing them on the back of the execution as a part of the costs. This, the court said, could not be done. Here the attorney’s commissions are a part of the judgment. It is true they are not embraced in the body of the execution, but they are as much a part of the judgment as the interest, and as easily computed. Their endorsement on the writ, while informal, is not material. The real estate was sold in satisfaction of the judgment of which the commissions formed a llpart. No good reason has been shown why they should not be paid out of the proceeds.

It is proper to say that no question in relation to the judgment docket was before the court. Whether the judgment was so entered therein as to amount to notice to subsequent lien-creditors of the attorney’s commission is a question that was not raised upon this record.

We think, therefore, that the learned judge erred in decreeing the $300 for attorney’s commissions to the judgment of the appellees. It should have been awarded to the appellants.

The decree is reversed,, at the costs of the appellees, and the record remitted for further proceedings.


author: Mr. Justice Sharswood

text:
    Clarke’s Estate.
    1. Testator directed his executors to hold certain stocks in trust for the sole benefit and use of such of his grandchildren as were in being at the date of his will and designated for each of said grandchildren by name one hundred shares of stock of Pennsylvania Railroad Company and one hundred shares of the Union Railroad and Transportation Company. He then directed his executors to provide or procure out of his residuary estate for each and every child that might be born of his son Charles and' his daughter Agnes after the date of his last will and before noon of the 4th day of April 1883, stocks to the same amount and value (viz., ten thousand dollars) as those already bequeathed for the use and benefit of the grandchildren before named. The executors in an amicable action petitioned the court below to determine whether the after-born grandchildren were entitled only to the stocks of the value of ¡¡¡>10,000 or to stocks of the same value as those specifically bequeathed.' Held (reversing the court below), that the after-born grandchildren as they came into being should have set aside for them respectively stocks of the same market value as one hundred shares of stock in Pennsylvania Railroad Company and one hundred shares of stock in Union Railroad and Transportation Company were on the day of the date of the will of testator.
    2. As a general rule a will speaks from the death of a testator, yet it is otherwise where its language by fair construction indicates the contrary intention.
    November 1st 1876.
    Before Agnew, G. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1876, No. 268.
    Thomas S. Clarke made a will dated May 30th 1867) and died October 19th 1867.
    By article 6 of this will he directed that his executors should hold in trust for the sole use and benefit of his grandchildren certain stocks. .
    He,designated by name each of his grandchildren then living, and provided for each one hundred shares of stock of the Pennsylvania Railroad Oo. and one hundred shares of stock of the Union Railroad and Transportation Oo.
    He then provided as follows
    “ Sect. 2. And further, it is my will, and I do hereby order and direct, that the executors or trustees aforesaid, <3r the survivor or survivors of them, shall provide or procure, out of my residuary estate, for each and every child that may be born of my said son, Charles J. Clarke, and my daughter, Agnes S. Kennedy, after the date of this, my last will and testament, and before the noon of the 4th day of April 1883, stocks of the same amount and value (viz., $10,000) as those herein bequeathed for the use and benefit of the grandchildren above-named.

      “ Sect. 3. And further, it is my will, arid I do hereby order and direct, that my said executors, or the survivor or survivors of them, shall have full power and authority, at any time, and at all times, to change or convert any or all of said before-mentioned stocks into other stocks, or into other securities, which they may consider good or safe, whenever they may deem the said change or conversion to be expedient, and for the best interests of my said grandchildren, and the said executors are hereby directed to invest the dividends or profits arising from the said stocks or securities, in securities of the United States, or of the state of Pennsylvania, at the expiration of every six months, or within a reasonable time after receiving the same, for the use and benefit of my said grandchildren, and that the stocks or other securities, together with the accrued dividends which may be received, shall be delivered by the said executors or trustees to each of my said grandchildren who may be living at the time of my death, or who may be born of my said son and daughter before the 4th day of April 1883, as each and every of them respectively shall arrive at the age of twenty-one years, as hereinbefore directed. * * * It is further my will that if any of my grandchildren shall die before arriving at .the age of twenty-one years without leaving lawful issue, the shares of stocks or securities, with accrued profits, bequeathed herein to such deceased, shall be equally divided among the survivors of said grandchildren.”
    Charles J. Clarke, William Thaw and William M. Hersh were named as executors in the will.
    Several children had been born to Charles J. Clarke and to Agnes S. Kennedy since the testator’s death. For each of these children, except the last, the executors procured the same number of shares of the same stocks as designated by.the testator in his bequest to his living grandchildren.
    Preceding the birth of the last child, James King Clarke, the Union Railroad and Transportation Company was dissolved, and its affairs were at the time of this proceeding in process of liquidation.
    Its stock, however, had a known value, and two of the executors, Charles J. Clarke and William M. Hersh, contended that under the provisions of the will in question they were bound to provide for this last born child the equivalent of one hundred shares of Union Line stock, with one hundred shares of Pennsylvania Railroad stock- or its equivalent.
    Mr. Thaw, the other executor, however, contended that the child was entitled only to $10,000 in stocks.
    To arrange this dispute, therefore, an amicable action was commenced, wherein Clarke and Hersh, two of the executors, petitioned the court below to put a construction upon the terms of the will, whereupon the court (Hawkins, J.) delivered the following opinion: — •

      “ The intention of Thomas S. Clarke, in the 2d and 3d sections, article 6th of his will, evidently was that his trustees should invest the sum of $10,000 in first-class stocks, to be selected by them.
    “ The legacies given therein are general. There is no restriction as to the company in which the stock shall he procured, nor as to the number of shares. The trustees are left free to select any stocks in a certain class. The description would be answered as well by the procurement of stocks in one company as in another in that class. There are no ‘ ear-marks ’ on the given thing, but merely an indication of the class from which it shall be selected. The trustees are simply directed to procure ‘stocks,’ without any specifications of the kind. To make a legacy specific, a clear intention to do so must be manifested by the testator. The thing given must be so marked as to be susceptible of identification. This is wanting in the present instance : Roper on Leg. 193 ; Blackstone v. Black-, stone, 3 Watts 335.
    “ The limitation of the power of the trustees is in the amount to be invested. They are directed to ‘ procure * * * stocks of the same amount and value (viz., $10,000) as those ’ bequeathed to grandchildren in esse at the date of the will. ' It seems to have been the object of the testator to equalize, as far as possible, the legacies given his grandchildren. He placed those of his grandchildren living at the date of the will on an exact equality. He gave them each the same number of shares in the same companies. To those who might thereafter be born, he gave ‘ stocks of the same amount and value.’ What amount and value ? The testator has fixed it at $10,000, for the purpose of equalization. It was entirely competent for him to put any value he chose upon his property, with this view. It was the only mode indeed in which he could accomplish his object. Stocks necessarily fluctuate in value. Today they may be worth par; to-morrow double in value, and the next day be worthless. Within the time limited by this testator, years must elapse and great changes in the values of stocks and in the condition of the companies which they represent, must necessarily take place. The testator seems to have recognised this law of change when he authorized his trustees to sell any of the stock which he gave his grandchildren, and invest the proceeds in other securities ‘ whenever they may deem the change or conversion to be expedient and for the best interests ’ of said grandchildren. Had the testator intended his trustees to procure stocks in certain companies, the change in values within the time limited for their procurement might have required the expenditure of $20,0-00 instead of $10,000, and thus exhausted the estate to the prejudice of other beneficiaries, or the stock might become worthless, and thus equalization be defeated.
    “When the will was made the stocks which the testator specifically gave to the grandchildren then living were first-class. The language used in the bequest to after-born grandchildren, and the direction to accumulate dividends, evidence an intention that the stocks to be procured for the latter shall all be of the same character, although not necessarily in the same companies, as those specifically given to the other grandchildren.
    “ The value of the gift having been fixed by the donor, can those who were appointed to carry out the intention of the testator exceed the limit fixed ? The will is their warrant. The amount specified by the testator is an appropriation of so much of his estate to the purchase of stocks, contingent upon the birth of issue, and is the law of the trust.
    “ The investment should be made in accordance with the foregoing views.”
    The court then decreed that the executors should invest in first-class stock, to be selected by them, in place of the stock of the Union Railroad and Transportation Company, the sum of $5000 for each and every child that may be born of Charles J. Clarke or of Agnes S. Kennedy, after the date when said Union Railroad and Transportation Company went into liquidation, and before noon of the 4th day of April 1883.
    From this decree this appeal was taken.

      Hampton Dalzell, for appellants. —
    To determine the proper construction of the will in question, the intention of the testator, if it can be gathered from the will itself, furnishes the primary rule superior to all rules on the subject: 2 Williams on Executors 1103; per Bell, J., in Bayard v. Atkins, 10 Barr 17. Following this rule the intention of the testator seems very clear that his grandchildren born during his lifetime and those to be born thereafter should be placed on an equality.

    They are treated of in the same article of the will, and the will is marked as making provision for each class by itself. They are treated alike as to the quantum of their legacies. Those of the born grandchildren are specifically designated; those of the unborn are to be “of the same amount and value.”
    No distinction is made between them as to their title; that of each is held by trustees. The trustees are the same as to both classes. The trust estate of each is to be managed in the same way. The times of payment areN alike. Each class takes a like estate.
    Nor does the testator seem to have intended any distinction founded upon age. Each of the born grandchildren, whether older' or younger, takes the same bequest as every other. Each member of that class would then have “stocks of the same amount and value as those bequeathed” to the members of the first class, provided the distribution were made to all at the same period of time.
    This result is accomplished by making the provisions of article 6 of Thomas S. Clarke’s will take effect at the time of his death, by providing and procuring the legacies for unborn grandchildren out of the residuary estate at that time.

      The one hundred shares of Pennsylvania Railroad stock, and the one hundred shares of Union Railroad and Transportation Company stock, given to each of his grandchildren named, were-of the far value of $10-,000, though of a much greater marlcet value. By construing the clause in parenthesis in article 6, section 2 (viz., ten thousand dollars), to refer to far value, it will apply as a designation of the value of the stocks specifically named. ' Taking them as a standard then, the intention of the testator can only be carried out by giving his after-born grandchildren “ stocks of the same amount and value.”
    To define our position then, we contend that the trustees named in article 6 of Thomas S. Clarke’s will took immediately at his death, for each of his grandchildren then living, a vested legacy, and for those to be thereafter born a legacy to vest immediately at birth, and that all of these legacies were equal in amount and value, that amount and value being then fixed by that of the legacies given to the grandchildren called by name in the will.

      Gr.eorge SMras, Jr., for appellee. —
    In this section under discussion we find, in the first place, a legacy of $10,000 to each grandchild^born between the prescribed limits; and, in the second place, a direction to the executors of the mode or kind of investment. The testator could not have felt assured that the requisite amount of stocks would be procurable by the executors, of the identical kinds bequeathed in the first section; and, in point of fact, just such a contingency has arisen in respect to the stock of the Union Railroad and Transportation Company.
    Plainly, therefore, while it may be incumbent on the. executors to select stocks of a character similar to those bequeathed to the grandchildren in esse at the date of the will, their power of choice is not restricted to any particular stocks. We, therefore, contend that in the case of James King'Clarke, a grandchild born since the date of the will and prior, of course, to April 1883, it is the duty of the executors, in the first place, to appropriate out of the residuary estate, left in their hands for that other, purpose, the sum of $10,000, and then to invest that sum in stocks prudently selected by •them, in pursuance of the trust confided in them by the testator.
   Mr. Justice Sharswood

delivered the opinion of the court, November 12th 1876.

In studying the will of the testator, Thomas S. Clarke, in order to arrive at his meaning in the second section of article 6, which has given rise to the controversy presented for decision in this case, it is evident that we must consider the whole scope of the instru-' ment in reference particularly to the bequests to his grandchildren.

Two primary intentions, we think, are very manifest. The first is that he meant to give legacies to his grandchildren, not in money, but specifically in stocks. As to such of his grandchildren as were in being at the date of his will he ordered and directed that his executors should hold certain stocks, thereinafter specifically mentioned, in trust for their sole benefit and use, and then he proceeds to specify for each of his then living grandchildren by name one hundred shares of stock in the Pennsylvania Railroad Company and one hundred shares of stock in the Union Railroad and Transportation Company. He then orders and directs his executors to provide or procure out of his residuary estate for each and every child that might be born of his son, Charles J. Clarke, and his daughter, Agnes S. Kennedy, • after the date of his last will and testament, and before the noon of the fourth day of April 1883, stocks of the same amount and value (viz., .ten thousand dollars) as those already bequeathed for the use and benefit of the grandchildren before named. In further prosecution of the same primary intention he provides in the next section that his executors shall have full power and authority, at any time and at all times, to change or convert any or all of the said before-mentioned stocks into other stocks, or into other securities which they may consider good or safe, whenever they may deem the said change or conversion to be expedient and for the best interests of his said grandchildren, and the executors are directed to invest the dividends or profits arising from the said stocks or securities in securities of the United States or of the state of Pennsylvania, at the expiration of every six months, or within a reasonable time after receiving the same, for the use and benefit of his said grandchildren, and that the stocks or other securities, together with the accrued dividends which may be received, shall be delivered (not converted into money and paid, but delivered) by the executors or trustees to each of his said grandchildren who may be living at the time of his death, or who may be born of his said son and daughter before the fourth day of April 1888, as each and every of them respectively shall arrive at the age of twenty-one years. And after a proviso, unnecessary to be here referred to, he finally directs that if any of his grandchildren should die before arriving at the age of twenty-one years, without leaving lawful issue, the shares of stock or other securities, with accrued profits, bequeathed to such deceased, should be equally divided among the survivors of the said grandchildren. It is evident from these provisions of the will that the testator intended that stocks should be set aside for each grandchild separately, and should be held in that form or in the form of other securities into which they might be changed or converted by the executors under the power expressly given to them for that purpose, and that the dividends or profits arising from the said stocks or securities should be invested only in securities of the United States or of the state of Pennsylvania, the whole to be delivered over to each grandchild on arriving at the age of twenty-one years.

But there was another primary intention, equally if not more important and prominent, in the mind of the testator. This was, that the legacies to his grandchildren should be equal in amount and value. He makes no distinction between those then living at the date of his will, each having set aside an equal number of shares of the same stocks; and as to those after-born, he expressly declares that they shall be of the same amount and value as those bequeathed to his living grandchildren. These last were not necessarily to be stocks of the same companies, for he declares very explicitly that his executors should provide or procure (not shall hold, which is the language used as to the stocks specially named in the preceding section) out of his residuary estate for each and every grandchild born after the date of. his will — not the same stocks, or stocks of the same companies — but stocks, any stocks, of the same amount and value.

If the will had stopped here, it is apprehended that there would be no difficulty in coming to the conclusion at which we have arrived, that the after-born grandchildren would be entitled to have set aside for them, to be provided or procured out of the residuary estate, stocks which should be of the same amount and value as one hundred shares of stock in the Pennsylvania Railroad Company and one hundred shares of stock in the Union Railroad and Transportation Company.

The questions would then remain, what did the testator mean by value, and as such stocks are fluctuating in price, as of what date is that value to be ascertained ?

The testator has added, in the clause before us, to the expression “ stocks of the same amount and value,” these words in a parenthesis, “viz., ten thousand dollars.” It is contended that this parenthetical clause means that the executors are to take from the residuary estate the sum of ten thousand dollars in money, and invest that amount for each of his after-born grandchildren as they come into being. But we think this construction is clearly inadmissible. It violates both the primary intentions of the testator. It is in effect a bequest originally of money, not of stocks, and it makes the legacies to the grandchildren unequal — it may be grossly so. It is clear that ten thousand dollars may not be sufficient to procure or provide stocks of the same amount and value as those bequeathed to the living grandchildren, if the market value of those stocks at the time of procurement has much appreciated above that in the contemplation of the testator when he made his will. On the other hand, if they have much depreciated, the amount would be much greater, though the value of the increased amount might be the same as that of the less amount. In-either event the shares of the grandchildren would evidently be unequal, depending upon the fluctuating character of such property. It is not then a bequest of ten thousand dollars to be invested in stocks. That is not, indeed, the proper grammatical construction of the clause. The words viz., ten thousand, dollars ” describe .the amount and value of the stocks he had before bequeathed to his living grandchildren ; that is, that their nominal amount and par value was ten thousand dollars; and this was in fact strictly true. But surely the testator did not mean that the executors should provide or procure out of his residuary estate for his after-born grandchildren any stocks of the nominal amount and par value of ten thousand dollars. Whatever confidence he might have that his executors would act justly and impartially, it is not to be supposed that he meant to invest them with a power and discretion which-might entirely frustrate one of the great objects of his will — equality among the objects of his bounty. By “ value” he must have meant market value. It is said however that conceding that value meant market value, the testator intended to declare what that value was at the date of his will. There is considerable plausibility in this contention and it very much simplifies the duties of the executor. This appears to have been the view of the learned judge of the Orphans’ Court. It was entirely competent no doubt for the testator to put any value he chose upon his property with a view to equalization, but is there enough-in this short parenthesis to enable us to say that he meant to do so ? Suppose he was mistaken, ought this his declaration of what he thought their market value was at the date of his will to be conclusive f We think not. It falls within the principle of the familiar maxim falsa demonstrate non nooet, or, as it is otherwise expressed in an excellent standard work, “ as soon as there is an adequate and sufficient definition with convenient certainty of what is intended to pass by the particular instrument, a subsequent erroneous addition will not vitiate itBroom’s Legal Maxims 630. That by value was meant market value, and that market value at the date of the will we think abundantly clear from a subsequent provision made applicable by him to all the bequests without exception. I direct,” says the testator in article 10, “ that in the event of the sale of any of the securities or property herein named by me during my lifetime the full equivalent, at the value realized by me, shall be paid to the person or party to whom the same may have been bequeathed herein.” We regard this as a key which easily unlocks the difficulty of the clause now in question. It establishes this rule of construction for this will that it is to speak as of its date, and that so far as the interest of the beneficiaries was concerned, it was to be considered as vesting at that time. While it is undoubtedly true that as a general rule a will speaks from the death of the testator, yet it is otherwise when its language by fair construction indicates the contrary intention: 1 Redfield on Wills 379, and cases there cited.

After what has been said it will scarcely' be necessary to consider what has been so urgently pressed by the learned counsel of the appellants, that the legacies to the after-born grandchildren vested at the death of the testator, and that it was the duty of the executors at that time to set aside stocks for the grandchildren who should afterwards be born. How can legacies for unborn children who may never come in esse be vested ? And how could the executors set aside stocks for them without knowing how many there would be, if indeed there would be any ? If the whole residuary estate is locked up until April 4th 1883, it is a necessary result of the provisions of the will by which the amount to be appropriated out of that estate is made to depend upon contingencies which may indeed happen before, by the deaths of Charles J. Clarke and Agnes S. Kennedy, but cannot be postponed beyond it.

The appellants, in their petition to the, court below, ask that an appropriation be made to James King Clarke, the after-born grandchild in question, out of the residuary estate, of the equivalent of one hundred shares of Pennsylvania Railroad stock and one hundred shares of Union Railroad and Transportation Company stock; that is, as we understand it, at the present market values of those stocks. We agree entirely with the learned judge of the Orphans’ Court that this is not admissible; for a change in the market value of the stocks might exhaust the estate to the prejudice of other beneficiaries, or the stocks might have become utterly worthless, and thus all equality have been defeated. Had the executors, with wise foresight, sold the stocks set apart for the living grandchildren, and invested the proceeds in other and safe stocks, and the stocks first set aside had become worthless, what would have been the condition of the after-born grandchildren under such a construction? It is true that these stocks may have much appreciated since the date of the will, and the after-born grandchildren will not receive what those then living now have. But that result is unavoidable. From the time these stocks were set apart, the legatees are to be regarded as the owners and entitled to all the advantages of their appreciation. Had the executors converted them into other stocks, which had doubled in value, it could not be contended that the after-born grandchildren would he entitled to stocks equal in value to such subsequent investment. Neither ought they to suffer by their depreciation.

We are of opinion then that the after-born grandchildren as they come into being should have set aside for them respectively stocks of the same market value as one hundred shares of stock in the Pennsylvania Railroad Company and one hundred shares of stock in the Union Railroad and Transportation Company were on the 30th day of May 1867, the date of the will of Thomas S. Clarke, deceased.

Decree of the Orphans’ Court reversed. And now, No-' vember 13th 1876, it is ordered and decreed that the executors of Thomas S. Clarke, deceased, set aside from the residuary estate or invest in stocks, to be selected or bought by them, for each and every child of Charles J. Clarke and Agnes S. Kennedy that has been or may be born after May 30th 1867 and before April 4th 1883, such an amount as will be equivalent to the market value of one hundred shares of stock in the Pennsylvania Railroad Company and one hundred shares of stock in the Union Railroad and Transportation Company on the 30th day of May 1867.

And it is further ordered that the costs in the court below and in this court be paid out of the residuary estate of the said Thomas S. Clarke.


author: Mr. Justice Woodward

text:
    Heslop versus Heslop.
    1. Demandant counted for dower in certain real estate against defendant and her son. At the trial, the court, against his consent, struck the name of the son from the record, refusing judgment in his favor or to allow his costs. Held, that this amendment was broken-under the Act of 4th of May 1852.
    2. It was not error to receive testimony which alleged the participation of the defendant in an attempt to corrupt the plaintiff’s witness.
    3. It was error to instruct the jury that “ when a party in a cause attempts to manufacture testimony, the jury were justified and warranted in presuming that his case is not well founded.”
    4. Plaintiff counted for dower in certain real estate of H„ deceased, who, as she alleged, was her husband. Defendant, who also claimed to be the wife of H., offered to show that she was entirely ignorant that H. had ever been married to plaintiff when she herself married him; that, at that time, he had no means of his own; that she had an estate of several thousand dollars which he appropriated and invested in the property in which dower in this suit is claimed; and that she had since earned considerable sums of money which were applied to the maintenance of H.’s family. This evidence the court rejected. Held to be error.
    5. It was not error to instruct the jury that where a husband wilfully deserted his wife or deserted her without cause, that the fact that she would not cross the sea to join him, and that she afterwards fell into immoral practices, would not bar her right to dower.
    October 26th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas of Cambria county: Of October and November Term 1876, No. 41.
    In this action Alice Heslop counted against Mary Heslop and Joseph Heslop for dower in the real estate of Joseph Heslop, Sr., deceased.

      The demandant, Alice Heslop, averred that she was married to Joseph Heslop, Sr., the deceased, in the year 1828, in England; and it was in evidence that about that time, in that country, the demandant and deceased lived together as man and wife for three or four years; that from England they went to Scotland, taking with them a daughter who had been born to them, and that they lived together in Scotland for three or four years more, when the deceased came to this country and took up his residence in Potts-ville, in this state. Shortly after the departure of deceased from Scotland, the demandant with her child returned to England, and she and deceased never met thereafter.
    It appeared also that while the deceased resided inPottsville, which was for several years, he lived and cohabited-with Mary Heslop, the defendant, whom, it seemed, he had known in England, and that subsequently he moved with her to Johnstown, in this state, where they lived together as man and wife for twenty years, and up to the time of his decease, in 1870.
    During this period the property was acquired out of which the demandant claimed to be endowed, and which the deceased by will devised to the defendant for life, and' at her death to her son, Joseph Heslop, Jr., born during the cohabitation of Joseph Heslop, Sr., with his mother, Mary Heslop.
    At the trial, the court (Dean, P. J.), on motion of plaintiff, struck from the record the name of Joseph Heslop, who, it was alleged, was joined with defendant by mistake; to which amendment Joseph Heslop objected and asked that judgment be entered'in his favor and his costs allowed, which objection the court overruled. This action of the court constituted the first assignment of error.
    Plaintiff offered to prove by George Rich that at the instance of ' Joseph Heslop, Jr., the son of defendant, and under promise of pay from the latter for the service, the witness induced William Heslop, the brother of deceased, to come to the house of defendant, where defendant and her son proposed to said William Heslop that they would pay him well and take him to board with them, as an inducement to secure him to be a witness in behalf of defendant; that witness conspired with the son of defendant and others to get William Heslop drunk, to induce him to say something to contradict testimony he had given before an auditor in behalf of the plaintiff; and that at the request of defendant witness had brought whiskey to her house and that said William Heslop was supplied with a bottle and kept drunk; this for the purpose of-showing that defendant had tampered with plaintiff’s witness.
    This testimony, under objection, was admitted and was the second assignment of error.
    In commenting upon this testimony, the court charged:—

      “ It is urged further by plaintiff in reply that money was offered to suborn witnesses or manufacture testimony in the case by Joseph Heslop, the son of the defendant. It is urged from the testimony of Rich that he was endeavoring, by improper means, to secure a verdict in his favor. You will remember that Heslop denies everything of this kind. It is for you. Where a party in a cause attempts to manufacture testimony, the jury are justified and warranted in presuming that his case is not well founded. You will consider the testimony on this question and give to it such weight as it may be entitled to.”
    This portion of the charge was the third assignment of error.
    The following offer was made by defendant:—
    “The defendant proposes to show by the witness that Joseph Heslop, at the time of his marriage with Mary Heslop, the defendant, was without any means ; that the said Mary had an estate of several thousand dollars, which was brought by them to this country and was invested in the property in which dower is claimed in this suit; that Mary Heslop, during her residence in Johnstown, was an industrious person, and served as a nurse, whereby she made considerable sums of money for the maintenance of the family of Joseph Heslop, to be followed by proof that Mary Heslop was entirely ignorant that Joseph, her husband, had ever been married to the plaintiff, and never heard of the claim of marriage now set up until after the death of her husband, Joseph Heslop.”
    This offer, under objection, was excluded and was the fourth assignment of error.
    The fifth assignment was to a portion of the charge of the court as follows:—
    “We say to you: if-Joseph Heslop, senior, wilfully deserted his wife, the fact that she did not cross the seas to join him, or did not offer so to do, would-not bar her claim for dower; or, if without cause he deserted her, thus exposing her to the temptations of the seducer, and she fell into immoral practices, and afterwards led a lewd life, this would not bar her right to dower.”
    The verdict was for the demandant, and the defendant took this writ, assigning for error the errors heretofore noted.

      Samuel S. Blair, for plaintiff in error.

      B. L. Johnston and I). McLaughlin, for defendant in error.
   Mr. Justice Woodward

delivered the-opinion of the court, January 2d 1877.

In the charge to the jury the court instructed them that “ where a party in a cause attempts to manufacture testimony, the jury are justified and warranted in presuming that his case is not well founded.” This instruction is the subject of the third-assignment of error. While the testimony offered on behalf of a party whom the jury find to have tampered with witnesses should be carefully and even suspiciously scrutinized, yet that testimony is not to be utterly disregarded and set aside, and the verdict be left to rest on a presumption arising from the party’s misconduct, however flagrant and however clearly proved. It is manifest that the court did not intend to lay down a rule that would produce such a result, for in the same connection the jury were told to consider the testimony on this question, and give .to it such weight as it might be entitled to. Still,' the effect of the rule which was stated could easily have been to mislead the jury, and to induce a verdict against evidence which might have been found to be conclusive under a more guarded charge.

Under the peculiar circumstances of this case the evidence specified in the fourth assignment of error ought to have been received. Alice Heslop, the plaintiff below, sought to recover dower in lands of which Joseph Heslop, whom she claimed to have been her husband, died seised. By his will Joseph Heslop devised the land to Mary Heslop, the defendant below, during her life, and after her death to their .son, Joseph Heslop, Jr. The plaintiff alleged that she was married in 1828, and the fact of the marriage has been found by the verdict. The substance of the evidence offered by the defendant, which the court rejected, was that she was entirely ignorant that Joseph Heslop had ever been married to the plaintiff when she herself married him; that he had at that time no means of his own; that she had an estate of several thousand dollars, which he appropriated and invested in the property in which dower was claimed in this suit; and that she earned during her residence in Johnstown considerable sums of money, which were applied towards the maintenance of Heslop’s family. If Heslop was the husband of the plaintiff, the defendant was certainly not his wife. The second marriage was a mockery and a fraud. It gave to Heslop no right to the possession of the defendant’s person and no right to the possession of her property. Even if she gave him her estate, the gift was to a man who had imposed himself upon her as her husband, and his title to it was worse than worthless. She had the right to regain possession of it, wherever it was invested, so long as its identity could be traced, against any claimant under a legal title which he had so iniquitously acquired. Receiving it under the false pretence that he was her husband, he acquired no more right to it in any legal sense than he could have acquired by any other form of fraud or crime. The fact that the defendant acquiesced in the provision made for her in Heslop’s will did not bar the right to claim the property for which her money paid. At his death she supposed herself to be his widow. The devise was to her and her son. She accepted it in the belief that she had been an actual and not merely an apparent wife. She permitted her apparent husband to dispose of it by will, just as she had permitted the ownership to- pass in his lifetime into his hands. Nor was she estopped from the assertion of her title by the proof of the will given at the trial. The fact that Heslop made it was part of the general evidence given to illustrate his relation to the two women who were the parties in the controversy. The proof of the marriage of the plaintiff failing, the defendant could claim only under Heslop’s will. The marriage, of the plaintiff being established, the defendant had the right to claim the property as her own, if it was bought with the proceeds of her estate. The rule that a wife cannot acquire property out of moneys earned by her has no application to a case like this. If the defendant lived with Heslop in the false relation which is alleged as the very ground-work of the plaintiff’s suit, her earnings were her own. The offer did not assert that they were applied to the purchase of the property, but it was competent to show that defendant had not been a burden upon Heslop, and that she had provided for more than her own support.

There is nothing in the other errors assigned to require detailed discussion. The amendment of the record was one which the courts were empowered to allow by the express terms of the Act of the 4th of May 1852. The offer of the testimony of George Rich was properly received, for it alleged the participation of the defendant in the attempt to corrupt the plaintiff’s witness. Reel v. Elder, 12 P. F. Smith 317, would seem to be authority for the instruction complained of in the fifth assignment. All necessity for an inquiry into the question of alienage is obviated by the discovery of the record of Heslop’s naturalization, a copy of which has been appended to the paper-book of the defendant in error.

Judgment reversed and venire facias de novo awarded.


text:
    Collins et al. versus Barnes.
    B. contracted with a railroad company to build its road, and sublet certain sections of the road to 0. & Co., the work to be paid for according to the estimates of the division engineer. After the work was completed by 0. & Co., B. refused to pay the balance claimed by 0. & Co., on the ground that the engineer’s estimates showed that they had been paid in full for all their work. 0.1c Co. then sued B. in Connecticut, to recover what was due them on the contract, but afterwards suspended that action under an agreement with B., by which he agreed to prosecute an action against the railroad company, with the assistance of C. & Co., and pay them all that he recovered on their sections. B. recovered a large sum from the company, but still refused to pay 0. & Co., on the ground that they were already overpaid, and that he had recovered nothing on their sections; C. & Co. then brought this action. The court below refused to submit the evidence of the new contract to the jury and to charge that the plaintiffs were entitled to recover from B. whatever he recovered from the company on the plaintiffs’ sections, and directed a verdict for the defendant. Held, to be error.
    October 3d 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to tbe Court of Common Pleas, No. 2, of Allegheny county : Of October and November Term 1875, No. 250.
    Covenant (afterwards changed to debt) by P. E. Collins and J. M. Moorehead, trading as Collins & Co., against O. W. Barnes. The material facts were these: The defendant in 1869 entered into a contract with the Connecticut Western Railroad Company to build their road. He afterwards sublet the building of mile sections, from 18 to 24, inclusive, to the plaintiffs. The contract between the plaintiffs and the defendant was the same precisely as that between the defendant and the railroad company. It was agreed between them that estimates of the work should be made by the division engineer, and upon these being certified by the chief engineer, eighty-five per cent, of their amount should be paid to the plaintiffs. The remaining fifteen per cent., was to be retained till the completion of the work. The contract further provided that the decision of the chief engineer should be final and conclusive in any dispute which might arise between the parties to the agreement. Monthly estimates were furnished to Collins & Co., and payments made on them under the contract till December 1870, Avhen a new division engineer revised the estimates of his predecessor, and cut them down by changing the classification of the work. This brought Collins & Co. in debt to Barnes. After this no more monthly estimates were furnished to the plaintiffs. Barnes, however, told the plaintiffs to go on with their work and finish it, and that the company had no right to change the estimates, but would be bound by the first estimates. Barnes further assured them that he would not submit to the change, but would aid the plaintiffs in inducing the chief engineer to replace the first estimates. The plaintiffs applied to the chief engineer, but he told them he had nothing to do with them, as the company had contracted with Barnes, and they must look to him. The plaintiffs went on with their work until February, when their property was attached for a debt. Barnes then suggested that the plaintiffs should unite with him in getting one O’Hara to finish the work for their benefit, and this Avas done. After the completion of the contract, Barnes refused to make a settlement, on the ground that the first estimates had never been put back, and as things then stood the plaintiffs were indebted to him. Collins & Co. then began suit against Barnes by attachment against the railroad company in Connecticut; Avhereupon Barnes came to them and told them he had refused to be bound by the chief engineer’s estimates, and had brought suit in New York against the company to recover, among other things, for the amount due on the work on the plaintiffs’ sections. It Avas then agreed between them that Collins & Co. should procure the necessary witnesses in the suit in NeAV York to prove the amount of work done on their sections, and that Barnes, upon a settleinent with the railroad company, should pay Collins & Co. the amount received for the work done by them. The attachment in Connecticut Avas alloAved to rest. Collins & Co. assisted Barnes in his action in New York, in which Barnes sought to recover over .$38,000 for Avork done on the plaintiffs’ sections. On this point the evidence Avas contradictory, Barnes testifying that he had not recovered anything on the plaintiffs’ sections. Barnes settled his case and received a large sum from the railroad company. He then refused to come to a settlement with Collins & Co., and this action was brought.
    The original narr. was in covenant; at the trial a narr. in debt was filed, and the plaintiffs, in addition to a large mass of testimony as to their performance of the old contract and the above matters, gave evidence tending to show, that after the making of the contract it was agreed between the parties to waive that clause- in it which made the chief engineer’s decision in all disputes final, and also that the chief engineer refused to act in the matter ; also,.to show that Barnes agreed with the plaintiffs that if they would stop their proceedings in Connecticut, and help him in his suit in New York against the railroad company, he would pay them all he recovered from the company for the work done on their sections.
    The plaintiffs asked the court to charge as follows: “If the jury should believe that, after the work was all done, plaintiffs and defendant agreed that if plaintiffs would not prosecute their action, then pending in Connecticut against the defendant, and would aid him (defendant) in his suit, then pending against the railroad company, and would assist him in proving the work done on plaintiffs’ sections, he, the defendant, would give them, the plaintiffs, such sum as he should receive from the said railroad company on account of plaintiffs’ sections, and that the plaintiffs performed their part of the said agreement, then the plaintiffs are entitled to recover from the defendant what he (defendant) received from the railroad company on account af the said sections of plaintiffs.”
    The court (Kirkpatrick, J.,) refused so to charge, and directed a verdict for the defendant.
    After verdict and judgment for the defendant, the plaintiffs below took this writ of error. The material assignments of error were to the charge of the court and the answer to the above point.

      Hampton Dalzell and B. T. Watson, for the plaintiffs in error.
    — The plaintiffs’ point raised a question of fact as to whether Barnes recovered anything on the plaintiffs’ sections, and this ought to have gone to a jury.

      Hill Burgwin, for the defendant in error.
   Mr. Justice Gordon

delivered the opinion of the court, November 13th 1876.

By the contract of December 15th 1869, Barnes agreed to pay to Collins and Moorehead, on the monthly estimates of the engineers of the railroad company, eighty-five per cent, of the value of the work to be by them done, and when all said work was fully completed, “ agreeably to the specification, and in accordance with the directions and to the satisfaction and acceptance of the chief engineer of the Connecticut Western Railroad Company,” there was tobe “a final estimate made'of the quantity, character and value of said work,” agreeably to the terms of said agreement, and' then, and not until then, Barnes became liable to pay the plaintiffs the balance which might appear from such final estimate to be due. Now, undeir this contract, what the division engineers have done is of no consequence, for their estimates governed only as to the partial payments, but when Collins and Moorehead came to demand final payment, the reserved fifteen per cent., or whatever may have been due upon the contract, they were.obliged,to produce the final estimate of the engineer-in-chief, for that alone could show that 'the work had been approved and accejrted by him, and without this no action would lie against Barnes. This was the law the parties adopted for themselves, and they must be governed by it. It was but reasonable that it should be so, for Barnes was but a contractor; he was himself governed by the same rule, and if the estimates fell short of the expectations of Collins and Moorehead, Barnes could not help it; he lost as well as they, and they could not expect him to pay what he could not get. Both parties were in the same venture, and its failure was a mutual disaster to be borne equally, and so the contract intended. In like manner, the testimony of Collins about his application to Mr. Schunk, the chief engineer, for estimates in order to settle an alleged dispute between himself and Barnes, amounts'to nothing, for he had those estimates as made for the company and its contractors, and it was not Schunk’s business to revise his work upon the call of a sub-contractor. And what was the dispute between himself and Barnes which required the intervention of an arbiter ? They were in perfect accord concerning the estimates, for, if we are to believe Collins’s own testimony, Barnes found as much fault with the estimates as he did; in the condemnation of the work of the engineer they agreed. The dispute, if such it may he called, was one which no arbiter was needed to settle, for Collins wanted, Barnes to pay him for that which, under the contract, he had nó right to demand; to pay him for work which the final estimate showed he had not done. It is manifest, therefore, that that part of the agreement which constitutes tlie chief engineer an arbiter to settle any disputes that might arise between the parties touching the stipulations therein contained, has no place in this controversy. If, however, Collins is to be believed, there was a subsequent arrangement by which the plaintiffs were to receive a pro rata share of what Barnes might recover from the company in a suit then pending against it. The design of this suit was to compel the company to account for work over and above that estimated by the engineer, and to test the question whether that estimate was conclusive on the contractors, or not. It was, indeed, but common justice, that if the defendant recovered from the railroad company for work done by the plaintiffs, they should receive their fair proportion of what that company might be compelled to pay. Independently of this, however, Collins says, that in consideration of this promise from Barnes, they agreed to suspend an action which they had commenced against him, and to assist, as far as they were able, in the suit against the company; all of which he alleges they did do. If these statements be facts, and it be also true that Barnes compromised with the company and received money or other valuables, we cannot see why he should not be compelled to account to the plaintiffs for a proper share of what was received on account of their sections of the work. Furthermore, if, as Collins testifies, Barnes undertook to see that they were paid what was justly due to them, and agreed to conduct- the suit for their mutual benefit, he, in good faith, was bound so to do, and he would be responsible for any fraud or negligence in the prosecution of the suit, or in the compromise by which it was terminated. These were matters that ought to have been submitted to the jury, and the court erred in refusing so to submit them.

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


author: Per Curiam.

text:
    Craig versus Gregg et al. Houston versus Same.
    An individual stockholder cannot maintain a separate action at law against the directors of a corporation for damages sustained by reason of the negligence of the directors. The remedy of the stockholder must he in a form to protect the interests of the corporation as the trustee for all the stockholders and the creditors.
    October 5th 1876.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1875, Nos. 251 and 252.
    These were actions on the ease, brought, respectively, by Mary A. Craig and Harriet Houston, stockholders, against David Gregg and others, directors of the Security Trust Company, to recover the amount they had paid in on the stock of the company, which they alleged was rendered worthless by the negligence of said directors.
    The company was incorporated under the provisions of the Act of April 12th 1866 and its supplements, and did a banking business in the city of Pittsburgh, from January 1872 to September 1873, when it suspended and made an assignment for the benefit of creditors. An investigation disclosed the fact that the entire capital stock of the company had been lost, and that its assets were insufficient to pay its creditors, and these actions were brought by plaintiffs to recover damages for the losses they had sustained, as they alleged, through the negligence of the directors in the discharge of their duties.
    At the trial, the plaintiffs gave evidence to show that James T. Brady, of the firm of James T. Brady & Co., who was a director and vice president of the company, was the chief instrument in organizing the company and obtaining-subscriptions to its stock; that said Brady was permitted by defendants to assume entire control of the management of its affairs, and had, with their knowledge, circulated printed circulars, falsely representing that certain responsible parties were trustees of said company, and that although defendants knew that said Brady was engaged in hazardous speculative enterprises, they had intrusted with him on deposit the large sum of $168,000, without taking any security therefor, and which, through the failure of Brady & Co., was totally lost, thereby causing the suspension of the Trust Company.
    When the plaintiffs’ evidence was all in, the defendants moved for nonsuits, on the ground, inter alia, that plaintiffs, as stockholders, could not maintain separate actions against the directors for the redress of damages sustained by them in common with the other stockholders, and the court granted the nonsuits, with leave to move the court in banc to take them off.
    The court in banc refused to take off the nonsuits, White, J., in an opinion, saying,
    “ But there is another ground on which I think the nonsuit was proper. This is a common-law action for negligence against the directors of the bank. The negligence charged is a neglect of duty by which the entire capital of the company was lost and the institution became insolvent. The plaintiff charges no act of negligence by which she was specially injured. The acts charged affect alike the defendants and all other stockholders, and all the creditors of the institution. The principle which' would allow a common-law action against the directors by each stockholder for a total loss of his stock, would sustain such an action for a partial loss or for a depreciation in the market price. If such is the law, who will act as a director ?
    “ But further, the creditors of the bank have a prior claim to the stockholders; for the stockholders elected the directors as their agents. If those agents have lost the funds of the stockholders, and also of innocent parties, intrusted with them, as the agents of the stockholders, these innocent parties should be paid first. Yet, if each stockholder can maintain his individual action against the directors, a few of them might bankrupt the directors and leave nothing for the creditors or the other stockholders.
    “ The only way I conceive to do justice in such a case and work out the equities of the various parties, would be by a bill in equity, or a common-law action in the name of the corporation. The fraudulent acts of Brady might possibly have justified a verdict against him; but the plaintiff’s counsel declined to take that, frankly admitting that a verdict against him was not what he wanted. As Brady was worth nothing, this verdict would be fruitless.”
    This writ was taken by plaintiffs, who assigned the judgment of the court and the refusal to strike off the nonsuits as error.

      Archibald Blakeley, for plaintiffs in error.
    — In support of the right of stockholders to maintain these actions against the directors of a corporation, the following authorities were submitted: Slaymaker v. Bank, 10 Barr 375; Dock Company v. Heron, 2 P. F. Smith 280; Railway Co. v. Stutler, 4 Id. 379 ; Kimmel v. Stone, 6 Harris 155; Kimmell v. Geeting, 2 Grant 125 ; Coleman v. Columbia Oil Co., 1 P. F. Smith 74; Bank of Montgomery v. Reese, 2 Casey 146 ; Id. 78; Crook v. Jewett, 12 Howard Pr. 19; Butts v. Woods, 37 N. Y. Appeals 317; Buell v. Warner, 33 Vermont 570.

      M. W. Aeheson, B. B. Carnahan, B. S. Gtolden and W. H. A. Ar. Sutton, for defendants in error.
    —The plaintiffs cannot maintain their actions; and relief, if they are entitled to any, must be sought either by a bill in equity or by a common-law action in the name of the corporation. The plaintiffs have sustained no loss that is not common to all the other stockholders, nor have they special ground of complaint against the defendants. That the corporation itself may maintain an action against the board of directors, in a proper case, for their gross negligence whereby the capital or assets of the corporation are lost or impaired, would seem to be indisputable. In such an action, would not the recovery be the amount of the loss ? And is it possible that every individual stockholder can have his action ? Suppose there be one hundred stockholders, and ninety-nine of them having brought separate actions, had recovered, would' the judgments in these cases bar an action by the corporation ? or would such recoveries affect the measure of damages in a suit brought by the corporation ? It seems not, because the corporation would recover primarily for its creditors. Such grievance can only be properly redressed so as to do justice to all parties in interest, to wit, the creditors, the corporation and the individual stockholders, in one of the two modes already suggested — a bill in equity, or a common-law action by the corporation.
   The judgment of the Supreme Court was entered October 16th 1876,

Per Curiam.

— We are of opinion that the alleged injury to the plaintiffs, as individual stockholders in these cases, cannot be redressed by an action at law for negligence, against the directors of the bank. The remedy must be in a form to protect the interests of the corporation as the trustee for all its stockholders and the creditors. Whether it should be by an action in the name of the corporation against the negligent directors or a bill in equity against both, it is not necessary to decide, as the case is now presented.

Judgments affirmed.


text:
    The Lake Shore and Michigan Southern Railway Company versus Hodapp.
    Where a box improperly directed was delivered to a railroad company for transportation and was safely carried to its destination, and there, after having been securely kept for two months, and due diligence exercised to ascertain the consignee, was delivered, by reason of the improper direction, to the wrong person, the company was not liable for the loss.
    October 18th 1876.
    Before Agnew, C. J., Siiarsavood, Mescur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common, Pleas of Mrie county: Of October and November Term 1875, No 134.
    Assumpsit by Leopold Hodapp against the Lake Shore and Michigan Southern Railway Company, to recover the value of a chest or box delivered to the defendant as a common carrier, which the plaintiff alleged was lost by reason of- a want of ordinary care on the part of defendant.
    On the trial it appeared that the wife of plaintiff, about the 10th of September 1870, took the box to an a'gent of the defendant in New York, and delivered it to him to be forwarded to Erie, Pennsylvania, giving to him, for the purpose of marking the box, the name and address “Leopold Hodapp, Erie, Pennsylvania.”. It being after the hours for shipping, the agent ivas unable to' give her a receipt, saying' that he would give her one in the morning if she would call, which she was prevented from doing by her immediate departure for Erie to join her husband.
    The agent, or whoever marked the box, marked it “Leopold Hotelfa, Erie, Pennsylvania.” The way bill from New York to Buffalo, ivas marked “ Leopold & H.” Avhich at Buffalo was changed by the agent to make it correspond Ayith the marks on the box to “Leopold Hotelfa.”
    The box arrived in due time at Erie, and the plaintiff applied for it in his own name at the freight depot of the company, but no box with that name thereon could be found. The box remained at .the depot of the company for about two months, when it Avas delivered by the agent to Christian Leopold, Avho AAras then keeping a hotel in Erie, at which he Avas in the habit of receiving immigrants and their baggage, the officers' of the company testifying that not being able to find any owner by the mark on the box, they had concluded that the mark thereon meant “ Leopold’s Hotel,” and was sent there to aAvait the arrival of some party who Avas to come to the hotel. Leopold, it appeared, kept the- box unopened, until June 1871, when it Avas opened in Titusville, to which place Leopold had moved, and the contents, Avhich he alleged' were of no value, thrown away.
    Hodapp made repeated inquiries for his box at the freight depot of the company, and subsequently Mrs. Hodapp, having discovered at the office of the company in NeAV York, that the box had been marked “ Leopold Hotelfa,” Iiodapp, upon application in that name for the box, was informed that it had been delivered as above to Christian Leopold.
    The plaintiff alleged that the box contained clothing and tools to' the value of $250.
    At the trial, Vincent, P. J., intér alia, charged the jury:—
    “It is not contended that the defendant is liable as a common carrier, or for extreme care, but only as a warehouseman, or for ordinary caire.
    “The defendant contends that they did use ordinary care, and that they were justified in delivering this box to Leopold, he being at that time in the habit of receiving and caring for such baggage, and a responsible man, and that having kept it so long as it was kept in the depot, it was not in any way negligent in delivering it to Leopold on such an address as was upon it.
    “[This is a question of ordinary care, and taking all the circumstances together we are not clear upon this point, but we will for the purpose of this suit, charge you that the delivery to the wrong person was a want of ordinary care and at the risk of the defendant.”]
    The verdict was for the plaintiff for $150, and judgment was entered thereon. The defendant took this writ, among other errors, assigning the foregoing portion of the charge in brackets.

      J. W. Wetmore, for plaintiff in error.
    — The box was received for immediate delivery and having been kept in the delivery room for two months, it had been held for a reasonable time and the company as a carrier was justified in delivering it to a proper warehouseman to be kept for the owner. Leopold being a responsible hotel keeper near the freight house, whose business and custom it was to talce charge of such baggage, was a proper warehouseman to whom to deliver the box: Fisk v. Newlin, 1 Denio 45. Due inquiry failed to discover Hodapp, but pointed to Leopold’s Hotel as the consignee, as indicated by the direction on the box.

      Gf. A. Allen, for defendant in error.
    — Where there has been an actual delivery of goods by the warehouseman to a third person by mistake, the warehouseman is liable for the goods, and any attempt to show he exercised ordinary care and prudence will not avail him. Such delivery to a third person overrides all such grounds of excuse and charges the warehouseman, and although the delivery may have been entirely by mistake as to the person and under the supposition that he was the true owner, he will none the less be in default: Lichtenhein v. Boston & Providence Railroad Co., 11 Cushing 70.
   Mr. Justice Gordon

delivered the opinion of the court, January 2d 1877.

We have examined this ease with care and find no error, except in that part of the charge where the court say, “ This is a question of ordinary care, and, taking all the circumstances together, we are not clear upon this point, but we will, for the purpose of this suit, charge you that the delivery to the wrong person, was a want of ordinary care and at the risk of the defendant.” This would be correct had the directions on the box been such that by the exercise of ordinary care the agents of the defendant might have known they were making a wrong delivery in committing it to the care of the proprietor of “Leopold’s Hotel.”

Under the circumstances of this case, however, it cannot be said, aS1 a matter of law, that they should have known this fact. The box was marked “ Leopold Hotelfa it had come through from New York under that direction; it had lain in the defendant’s warehouse some two months, during which time, according to the testimony produced by the company, no inquiry was made for it, whilst, on the other hand, the officers had made repeated inquiries for the consignee. Under this condition of things, nothing was more natural than to suppose that the direction was intended for “ Leopold’s Hotel,” and that itwas thus consigned to await the arrival of some Herman immigrant who, in his ignorance of the English language, had written, or caused to be written, “Hotelfa" for “ Hotel.” This view of the matter was strengthened by the fact that Leopold was accustomed to receive consignments of this kind. Whether this view of the case be right or wrong, strong or weak, is not for us, as it was not for the court below to say, but for the jury. If, however, from all the evidence, that body should find that the improper direction contributed to the mistake of the railroad officers, the verdict ought to be for the defendant.

Judgment reversed and a venire facias de novo awarded.