author: Mr. Justice Sharswood

text:
    Rheem versus Carlisle Deposit Bank.
    1. The plaintiff, a bank in Carlisle, was the holder of a draft payable in Philadelphia, endorsed by defendant; notice of protest was duly received by the bank on Saturday ; on that day an officer of the bank called at defendant’s house and place of business to serve notice personally, but could not meet him. On Sunday he called at defendant’s house and handed him a sealed envelope containing the notice, saying what it contained; defendant put it unopened into a drawer, and did not look at it for some weeks after-wards. Held, That the service of the notice being on Sunday was unlawful and the endorser was not bound.
    2. The defendant was not bound to receive the notice nor to open or read it on Monday, although the service would then have been in time.
    3. Receiving the notice on Sunday .in silence was not a waiver of the irregularity.
    4. Stern’s Appeal, 14 P. F. Smith 447, remarked on.
    May 12th 1874.
    Before Agnew, 0. J., Sharswood, Williams, Merour and Gordon, JJ.
    Error to the Court of Common Pleas of Cumberland county: No. 20, Of May Term 1874.
    This was an action of assumpsit, brought March 9th 1871, by the Carlisle Deposit Bank against Jacob Rkeern, endorser of the following draft, of which the plaintiff was the holder:—
    “$1200. Philadelphia, November 17th 1870.
    Forty days after date pay to the order of myself at the Union Banking Company, Philadelphia, twelve hundred dollars, value received, charge the same to account of Wm. Leeds.
    Union Drove Yard, West Philadelphia.
    Accepted — Henry Glass.
    Endorsed by William Leeds, Jacob Thudium, William Leeds, Jacob Rheem.
    The defendant filed an affidavit of defence, that “he never received proper and legal notice of the dishonor of the instrument on which this suit is brought so as to charge him with the same.”
    On the trial, April 25th 1873, before Junkin, P. J., it appeared that the note had been protested for non-payment, December 30th 1870, at the Union Banking Company.
    Lewis A. Smith, a teller of plaintiff, testified:—
    “ I received notice of the protest of this draft on 31st of December 1870. There were four notices of protest m the letter from Brobston, the notary, to wit: One to J. P. Hassler, cashier, one to William Leeds, one to Jacob Thudium, one to Jacob Rheem, and we retained the notice to J. P. Hassler, and the notice to William Leeds I left with his wife at his residence. The notice to Jacob Thudium I served in person, and the notice to Jacob Rheem, I called several times at his residence and at his office, which is his place of business, and was unable to find him. These calls at his house and place of business, were made on Saturday afternoon and evening, of the 31st December 1870. Then on Sunday January 1st 1871, I served the notice of this protest, which I had previously attempted to serve, about 9 o’clock, A. M., at the residence of Mr. Rheem, by handing it to him in person. Rheem’s daughter came to the door first, and I asked for Mr. Rheem, and then he came.”
    For defence, Jacob Rheem, defendant, testified:—
    “ When Mr. Smith called on Sunday, January 1st 1871, I was engaged at family worship. I went to the door after worship was over, and Mr. Smith handed me the paper, and stated that he was sorry, that he was obliged to do it. I took the paper from his hand and went back to the dining-room, and threw it into the drawer of my desk. I did not look at its contents, nor did I for some weeks afterwards, and then only inadvertently, while looking for other papers. He did not tell me what the notice was when he handed it to me.”
    Lewis A. Smith, recalled for plaintiff, testified:—
    “ The paper containing notice was in a sealed envelope. I said or told Rheem when I handed him the envelope, that I was very sorry, that I was compelled to serve it on him, and told him it was the notice of the protest of the Leeds draft.”
    The court charged:—
    “]We instruct you, that [if you find from the evidence that Mr. Smith, the teller of the' plaintiff’s bank, told Rheem, the defendant, when he handed him the notice of the protest on Sunday, the 1st day of January 1871, that it was the notice of the protest of the Leeds draft, the plaintiff is entitled to recover.]
    “ If you find that Smith, the teller, did not tell the 'defendant, Rheem, when he handed him the envelope, that it contained notice of the protest of the Leeds draft, you will find a verdict for the defendant.

      “ The court reserves the following point, to wit: Should the jury find for the plaintiff the fact that Smith, the teller, did tell defendant Rheem, on Sunday, the 1st day of January 1871, that the envelope which he then and there (on that Sunday) handed to defendant, contained notice of the protest of the Leeds draft, then the following facts are ascertained, to wit:—

      “ First. That defendant endorsed the draft in suit.

      “ Second. That it was presented for payment to Henry Glass, the acceptor, on 30th December 1870, who refused payment; that payment was on same day demanded at the counter of the Union Banking Company, Philadelphia, where by its terms it was payable, and payment refused there also.
    “ Third. That it was duly protested for non-payment on Friday, the 30th December 1870, but the notary instead of mailing the protest to the address of the defendant, Rheem, at Carlisle, Pa., his place of residence, enclosed said notice in an envelope and mailed it on 31st December 1870, to plaintiff as last endorser, and it was received by plaintiff same day at its place of business in Carlisle, Pa., aforesaid; that the same evening (31st December 1870), Smith, an officer of plaintiff’s bank, attempted to serve the said notice of protest, on defendant, but failed, because he did not find defendant at his usual place of business.
    “Fourth. That on Sunday, the 1st January 1871, the said officer, Smith, 'went to the dwelling-house of defendant, and handed him the envelope containing the notice of the protest of said draft, telling him at the moment of so doing that the envelope contained notice of the protest of the Leeds draft.”
    The question reserved is: “As plaintiff had by law Monday, the 2d January 1871, to give this notice of protest to defendant, was the delivery of the envelope in the manner set forth, on Sunday, sufficient to charge the endorser?”
    The verdict was for the plaintiff for $1367.
    In his opinion on the reserved point, Judge Junkin said :—
    * * * “Notice of protest is authentic information from the proper source that the paper has been dishonored; its object is to enable the party notified to take measures for his own security against parties liable to him. It need not be in writing — any information coming from parties interested, and whose duty it is to give it, and certain to a reasonable intent, will suffice. When the endorser lives elsewhere than at the place fixed for payment, notice by mail may be given. It may be given verbally and personally, or in writing, and left at his place of business or dwelling. If it can be shown that it was actually received by the endorser in due time, when in writing, there is no difficulty; but when this cannot be done, then rules have been established, which if complied with, are considered equivalent to notice, although notice may never have reached him. Actual notice dispenses with the ordinary formal requirements: Hallowell & Co. v. Curry et al., 5 Wright 322. In Bank of U. S. v. Corcoran, 2 Peters 132, and Dickins v. Beal, 10 Id. 578, it was held that though left at an improper place, nevertheless if in point of fact it was received in due time by the endorser, it was sufficient in point of law to charge him; so that, after all, the question is, did he know certainly, and from proper sources, that the particular draft was dishonored.

      “ Can the day on which, or the channel through which the knowledge comes, whether written or spoken, be material ? Could a purchaser, who had received notice of a trust, on Sunday, written or spoken, say, he knew it not, on account of the day, and therefore be discharged ? Now, it is found as a fact, that the teller told him that the envelope contained notice of the protest of the Leeds draft. He had knowledge of the fact, both verbally and in writing. That under our Sunday law, all contracts made on that day are to be considered as not made at all, is conceded, and had the 1st January 1871 (Sunday) been the last day the plaintiff had for giving this notice, it would have amounted to nothing, for he was not bound to open it on Sunday, and the authorities say it is to be considered as received on Monday: Parsons on Notes and Bills, ed. of 1873, p. 515, vol. 1, and he cites Wright v. Shaw-cross, 2 B. & Aid. 501, note; Bray v. Hawden, 5 Maulé & S. .68; Diblieux v. Bullard, 1 Rob. (La.) 66, where the notice was given on the 4th July. Martin, J., said it might be given on Sunday. ‘ If a holiday or Sunday intervenes it is not counted, but adds one more day of allowable delay. If notice is received on Saturday it need not be forwarded until by some mail on Monday, even if there is a Sunday mail.’ Then plaintiff had Monday, the 2d January 1871, to give the notice, and inasmuch as defendant was in possession of the envelope containing said notice (and was told so by the teller) on that Monday, he was duly notified that the draft was protested. Had a post-carrier delivered the envelope on Sunday it would suffice; but then that would be good on the ground that it was duly posted, and he bound, though he never received it. Nor do we rest our conclusions on the ground that he might have declined receiving the letter, and by receiving waived irregularity, because the statute was not his to waive. But we place his liability solely on the ground that on Monday, the 2d day of January 1871, that day being in good time, ho had in his possession a notice of the protest of the draft in suit, and knew that he had it. Had the envelope fallen from the clouds, or been carried to him in the mouth of a fish, like the tribute for Caesar, with the direct information from the teller of the bank, plaintiff, ‘this is the notice of the protest of the Leeds draft,’ he would have been fixed for the money, because the whole purpose of the notice is to inform him of non-payment.
    “ The. statute does not forbid talking or writing on Sunday, and a fact communicated on that' day is as much the truth as it would be spoken on any other. In Barker v. Hopkins, 7 Barr 472, a bond void because executed on Sunday, was used as an admission of liability, and Coulter, J., there says, a man may acknowledge the truth on Sunday, and he knew of no rule preventing its being given in evidence against him; that if a man writes a letter on Sunday, and sends it to his creditor,'who gets it on Monday, or even takes it from the office on Sunday, he presumes that it would be competent evidence against the debtor. He further adds, “ We cannot carry the law so far as to say, that the admission of a previously existing debt, made on the Sabbath, is not good.” And in Uhler v. Applegate, 2 Casey 140, it was held that an agreement though made on Sunday, and void as an executory contract or agreement, yet the payment of the money afterwards, and its receipt by the obligee, constituted a new contract, which was binding on the parties. Defendant was not bound to open and read the notice on that Sunday; the law gave him until Tuesday, the 3d January 1871, to notify the parties to whom he would look for indemnity; but being in possession of the notice on Monday was all the law required, and how he came by it is not material, so that he had it. We are not unmindful of Stern’s Appeal, 14 Smith 447, where it was held that an order to the sheriff, given verbally on Sunday, to resume action on a suspended execution, did not create a lien on the defendant’s goods nor give precedence; and that the sheriff was not bound to receive such order on Sunday, for if he was, then he must keep his office open on that day. It is enough to observe that this order required the sheriff to act, and this he was not bound to do on Sunday. Rut had a written order been handed him on Sunday, which was in his hands on Monday following, and he knew its purport from the person handing it, could he have said that he was not bound to act ? How he came by it, if he had it on Monday, would not be material.”
    The court directed judgment to be entered for the plaintiff on the verdict on the reserved point.
    The defendant removed the record to the Supreme Court by writ of error.
    He assigned for error the part of the charge in brackets and entering judgment for the plaintiff on the verdict on the reserved point.

      L. Todd, for the plaintiff in error.
    The holder must show by clear and satisfactory proof that demand and notice had been made: Lawson v. Farmers’ Rank, 1 Ohio Rep. 206. The law will not lend its aid to enforce a contract made on the Sabbath: Foreman v. Ahl, 5 P. F. Smith 325. A notice on the Sabbath is a nullity: Stern’s Appeal, 14 P. F. Smith 447.

      J. Hays and I?. Iff. Henderson, for defendant in error.
   Mr. Justice Sharswood

delivered the opinion of the court, May 25th 1874.

It is very important that the Acts of Assembly providing for the observance of the Lord’s day, commonly called Sunday, should be enforced according to their true spirit and meaning. We are not called upon to discuss the policy of these statutes, but the legislature in the unquestionable exercise of their constitutional power have enacted that one day in seven, the first day of the week, shall be a day of rest, when all worldly employment and business shall be intermitted. By the Act of 1705, § 4, 1 Smith 25, no person or persons upon the first day of the week shall serve or execute or cause to be served or executed any writ, precept, warrant, order, judgment or decree, except in case of treason, felony or breach of the peace; but the serving of any such writ, precept, warrant, order, judgment or decree shall be void to all intents and purposes whatever. And the Act of April 22d 1794, § 1, 3 Smith 177, imposes a penalty upon any person who shall do or perform any worldly employment or business whatever on the Lord’s day, commonly called Sunday (works of necessity and charity excepted). It was said in Stern’s Appeal, 14 P. F. Smith 450, that judicial business in civil cases, done on Sunday, is violative of the common law. The notice from the attorney of the party to the sheriff in that case was not an order within the letter of the Act of 1705, though it is so termed in the case. It was a mere notice to him to proceed according to his duty under the writ of execution already in his hands. It cannot, I think, be doubted that any other notice by party or counsel in the course of legal proceedings would be equally ineffectual. Nor would it be necessary that a suit should be actually pending. Notices are often required to fix the liability of a party. Thus notice to a magistrate before commencing a suit against him for any act done by him in virtue of his office surely could not be served upon him on Sunday. Nor would it matter that it would have been in time if served on the following day. To fix an endorser with legal liability, a notice of non-payment is required. It is a step in the legal proceedings, though before the commencement of the suit. The party was not bound to receive or notice such a communication. It is against the spirit of the Act of 1705, to permit it to have any effect. Besides it was a part of the worldly employment or business of the teller of the bank, directly violative of the Act of 1794, an unlawful act on his part, and fell within the prohibition of that statute.

It is true that the English authorities hold that a notice of protest served on Sunday is to be considered as received on Monday: Byles on Bills 224. But our Act of Assembly is more comprehensive in its terms than the English statute of 29 Charles 2, cap. 7, which forbids only labor in one’s “ ordinary calling on Sunday,” whereas the statute of 1794 is aimed against “ any worldly employment or business whatever Johnston v. The Commonwealth, 10 Harris 108; Omit v. The Commonwealth, 9 Id. 432; Kepner v. Keefer, 6 Watts 233. If the plaintiff in error was not bound to receive the notice on Sunday, neither was he bound to open and read it on Monday. He said nothing to lull the officer of the bank into security. The mere taking of the notice from his hands in silence, though informed of what it was, cannot be construed into an agreement to accept it and a waiver of the irregularity. We must be careful not to open the door to exceptions which will fritter away the plain provisions of the law. Especially is it in the construction of written statutes that hard cases have made bad precedents. Thus wé have seen the Statute of Uses, of Frauds and Perjuries, and of Limitations, almost judicially repealed, by exceptions gradually introduced by construction. In such cases it is a safe rule, obsta principiis.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Williams

license: Public Domain

text:
    Columbia Insurance Company versus Masonheimer.
    1. A mutual insurance company in its policies reserved the right to cancel them for non-payment of assessments for thirty days. Shoemaker insured in the company; an assessment on him being unpaid less than thirty days, he assigned his policy to defendant with approval of the company. After the assessment had been unpaid for thirty days, the secretary informed defendant “the company cancels all policies on which assessment is not paid in thirty days.” In a suit for assessments afterwards made against defendant, Held, that the company was bound by the letter of the secretary, and it justified the defendant in believing that the policy was cancelled, and if he acted on such belief, they could not recover the assessments against him, although the policy had not been cancelled on their books.
    2. The secretary was the proper organ between the plaintiff and defendant ; it was within the scope of his authority to inform defendant of the cancellation of the policy, and this was binding on the company.
    May 13th 1874.
    Before Agnew, C. J., Sharswood, Williams, Merour and Gordon, JJ.
    Error to the Court of Common Pleas of Cumberland county: No. 54, to May Term 1874.
    This action was commenced before a justice of the peace by the Columbia Insurance Company against J. M. Masonheimer, and removed by appeal into the Court of Common Pleas, December 30th 1869. The plaintiffs, a mutual insurance company, declared in assumpsit for two assessments of $16.50 each on a premium-note of $330, the consideration of a policy of insurance No. 13,895, which had been issued for three years from March 28th 1868 to Daniel Shoemaker on his store, which he afterwards sold to the defendant and assigned to him the policy of insurance on the 10th of August 1868; the defendant giving to the plaintiff his premium note, and they approving the assignment.
    The' note was as follows:—
    “$330. For value received, in policy No. 13,895, issued by the Columbia InsuranceCompany, I promise to pay the said company the sum of three hundred and thirty dollars, in such portions, and at such times as the directors of said company may agreeably to their act of incorporation require. J. M. Masonheimer.”
    Dated August 10th 1868.
    The following was one of the conditions of the policy: “ Whenever any assessment shall have been declared and demanded by the company, or their agent, and the insured shall for the space of thirty days refuse or neglect- to pay the same, the company may, at their option, cancel the policy of insurance, but retain and collect the premium-note like all others.”
    The case was tried March 10th 1873, before Junkin, P. J.
    The plaintiffs gave evidence of the foregoing facts.
    Shoemaker, who was called by the plaintiffs, testified that an assessment had been made on the note against him of which neither he nor the defendant knew when the policy was assigned.
    This assignment was made August 4th 1868, and was not paid nor claimed until after the assignment.
    Plaintiffs gave in evidence certificates of the secretary of the company that assessments had been made February 1st and May 4th 1869 on all premium-notes, and there were due from the defendant on each of these assessments $16.50.
    The plaintiffs having closed, the defendants under objection and exception, gave in evidence the following letter from the secretary of the company:—
    “ Office Columbia Insurance Company.
    Dec. 26th 1868.
    J. M. Masonheimer — Dear Sir : — Yours of 27th came to hand. If the transfer was made to you after the assessment was levied, the company have no legal claim on you for its payment, but the transfer cannot 'alter the policy, and the company cancels all policies on which the assessment is not paid in thirty days after the same is called for. If you have paid the agent you are all right; if not, the company will renew the policy when it is paid.
    Very respectfully,
    Geo. Young, Jr., Sect’y. [seal]”
    The defendant testified that after he received this letter he supposed the policy was cancelled and effected an insurance in another company. He returned the policy to Shoemaker and notified the company of it.
    The plaintiffs in rebuttal gave evidence that the policy stood uncancelled on their books during the period it had to run, with the transfer to defendant approved.
    The court after recapitulating the facts said:—
    “ Now we submit to you this question. Did this letter of the secretary Young, dated 29th December 1868, mislead Masonheimer, by informing him that his policy was of no validity under the regulations of the company, unless he would pay up the assessment against Shoemaker, and when this was done the company would restore the policy ? Did this letter fairly imply that this policy was cancelled and could be reinstated only by paying up the assessment aforesaid ? If it did, and Masonheimer chose to accept the situation, he was at liberty to take the company at its word, treat the policy as cancelled, and insure in another company, which he did. If you find this fact in favor of the defendant, then we instruct you, that the plaintiff cannot recover; although in point of fact the policy never was cancelled, but continued in force as appears by the books of the company. The reason we think so is, that in mutual fire insurance companies the secretary is the active business man, and is so largely intrusted with the management of the affairs of the company, that in point of fact the directors seldom meet; and it would lead to grave injustice if the company were permitted first to intrust their secretary with their business in a general way, and then question his authority when it was found that he had misled the insured. If a secretary informs a policy-holder that his policy is cancelled, and thereby induces him to insure in another company, the company whose officer has thus misled a member, cannot recover subsequent assessments as is attempted in this case. The company will not be permitted to play fast and loose at the will of the directors, approve or disapprove years after, of the act of their secretary. We say then that if the letter of 29th December 1868 misled Masonheimer in reference to the policy he held under the assignment from Shoemaker, the plaintiff cannot recover. But if, on the other hand, this letter had not this effect, the plaintiff would be entitled to recover, as the policy continued in full force during the time it had to run, as shown by the books of the company.”
    The verdict was for the defendant.
    The plaintiffs took a writ of error. They assigned for error: Receiving the secretary’s letter in evidence, the answer to their point, and the charge of the court.

      J. Hitner, for plaintiffs in error.
    The secretary of a company is not presumed to have authority to bind the company; it must be shown: Williams v. Chester, &c., Railway, 5 Eng. L. & Eq. 497; Baxter v. Chelsea Mutual Eire Ins. Co., 1 Allen 294.

      J. Hays, for defendant in error.
   Mr. Justice Williams

delivered the opinion of the court, July 2d 1874.

The secretary was the proper organ of communication between the company and the defendant, as the assignee and holder of one of its policies, and it was clearly within the scope of his authority to inform the defendant of its cancellation for the failure of the assignor to comply with the condition upon which it was issued, and for the non-performance of which the company had reserved the right to cancel it. If the policy was in fact cancelled, there can be no recovery of the assessments on the premium-note given by the defendant. It was wholly without consideration, if the contract of insurance was rescinded, after the assignment of the policy, for the non-payment of a previous assessment by the assignor. No question is made in regard to the right of the company to cancel the policy, but it is contended that it was not in fact cancelled, and that the letter of the secretary, taken in its broadest sense, does not declare that the company had cancelled the policy, but only that they had power to do it if they chose to exercise it. There can be no doubt, as already suggested, that the letter of the secretary was within the scope of his official authority, and that it is binding on the company, whether they expressly authorized it or not. The only question then is whether it admits of the construction put upon it by the'defendant. It is true that it does not assert in express terms that the company have cancelled the policy for the non-payment of the assessment, but is not this the obvious meaning and import of its language ? If it was not intended that the defendant should understand that the policy was cancelled, why was he informed that the company cancel all policies on which the assessment is not paid in thirty days after the same is called for” ? And why was he told “ if you have paid the agent you are all right. If not, the company will renew the policy when it is paid” ? What is the meaning of this language, if it was not intended to convey the impression that the policy was cancelled ? That the defendant so understood it is shown by his acts. He returned the policy to the assignor, obtained other insurance, and informed the company of the fact. If the company did not mean to be understood as having cancelled the policy, why did they not undeceive him ? They do not deny, but tacitly admit, that they received his letter. Why then should they not be treated as having acquiesced in the construction which he put on the secretary’s communication ? If he misapprehended its meaning, it was their duty to inform him of his mistake. But it is evident from the whole tenor of the letter that he understood it just as it was intended he should. If so, the letter was rightly admitted in evidence, and the case was submitted to the jury with as favorable instructions as the company had any right to ask.

Judgment affirmed.


text:
    Sleek & Blackburn versus Turner’s Assignee.
    1. Turner, October 21st 1871, gave Sleek for value a judgment-note, on which he entered judgment February 26th 1872; an execution issued March 11th and his personal property was levied on ; April 10th his creditors filed a petition of bankruptcy against him; April 11th his personal property was sold by the sheriff; he was adjudged a bankrupt and an assignee appointed July 5th; the proceeds of sheriff's sale were brought into court: Held, the note having beien given four months before the proceedings in bankruptcy, that Sleek’s judgment was not in fraud of the Bankrupt Law and was entitled to be paid from the proceeds of the sheriff’s sale.
    2. Turner being passive in the entry of the judgment and the issuing of the execution, had not given Sleek a preference; the case was no stronger than it would have been if judgment had been obtained in a suit on a plain note, no defence being interposed.
    3. Mere passive non-resistance in an insolvent debtor will not, under the Bankrupt Laws, invalidate a judgment and levy on his property when the debt is due and he has no defence.
    4. Though such judgment-creditor may know the insolvency of the debtor, his levy and seizure are not void, nor any violation of the Bankrupt Law.-
    May 14th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Somerset county: No. 101, to May Term 1874.
    This was a feigned issue framed July 29th 1872, between A. J. Colborn, assignee in bankruptcy of Lewis A. Turner, against Sleek & Blackburn, to try the validity of a judgment entered February 26th 1872, No. 31, to May Term 1872, in favor of Sleek & Blackburn against Lewis A. Turner. The judgment was entered on a note dated October 24th 1871 for $204, payable in sixty days, with warrant of attorney to confess judgment. The note was given for a debt which had been due for some time to Sleek & Blackburn. They issued a fi. fa. on their judgment March 11th 1872. Under this execution the sheriff levied on the personal property of Turner. On the 10th of April 1872, some of the creditors of Turner petitioned the District Court of the United States to have him adjudged a bankrupt. On the 11th and 12th of April the sheriff sold Turner’s personal property. Turner was afterwards adjudged a bankrupt, and on the 5th of July 1872 Colborn, the plaintiff in the issue, was appointed his assignee. On the 19th of July the proceeds of the sheriff’s sale, $2206.39, were paid into court.
    The question in the issue was whether, under the facts in the case, the judgment was in fraud of the 35th section of the Bankrupt Law of March 2d 1867. The section enacts:—
    “ If any person, being insolvent, or in contemplation of insolvency, within four months before the filing of the petition by or against him, with a view to give a preference to any creditor or person having a claim against him or who is under any liability for him, procures- any part of his property to be attached or seized in execution, or makes any pledge, assignment, transfer or conveyance of any part of his property, either directly or indirectly, absolutely or conditionally, the person receiving such payment, pledge, assignment, transfer or conveyance, or to be benefited thereby, or by such attachment, having reasonable cause to believe such person is insolvent, and that such attachment, payment, pledge, assignment or conveyance is made in fraud of the provisions of this act, the same shall be void, and the assignee may recover the property, or the value of it, from the person so receiving it or so to be benefited.” * * *
    The foregoing facts appeared on the trial of the case May 6th 1873, before Hall, P. J., who refused the following point of the defendants:—
    “ If the note, on which the defendants’ judgment was entered, was given for a valuable consideration more than four months before the commencement of the proceedings in bankruptcy against L. A. Turner, then the judgment and fi. fa. issued thereon are valid, although the judgment was entered and fi. fa. was issued within four months of the commencement of said proceedings in bankruptcy, and the verdict must be for the defendants.”
    He further charged:—
    * * * “ It seems to be settled that the note with the warrant of attorney for the confession of judgment was merely an evidence of debt, which first became effective as a transfer to give preference when it was entered on the 26th of February, with a view to execution, which was issued on the 11th of March. When this entry of judgment and execution and levy are made within the four months before the petition of bankruptcy, the preference thus given is invalid, although the judgment-note was given more than four months before.'
    “ The allegation is that the preference of the creditor, which the law forbids, was made effective by the entry of the judgment-note, followed by the execution, levy and sale, and the inception of the transfer in avoidance of the act was the entry of the judgment. That, therefore, becomes the point of time to which your inquiry, as to the existence of reasonable cause for belief of insolvency, is to be directed.” * * *
    The verdict was for the plaintiff.
    The defendants took a writ of error, and assigned for error the charge and the refusal of their point.

      A. S. Ooffroth (with whom was W. H. Koontz), for' plaintiffs in error,
    referred to the 35th section of the Bankrupt Act; Holl v. Deshler, 21 P. F. Smith 301.

      J. Kimmel and A. J. Oolborn, for defendant in error,
    cited Terry v. Weaver, 4 Bank. R. 33; In re Dibble, 2 Id. 185.
   Mr. Justice Sharswood

delivered the opinion of the court, May 25th 1874.

This was a feigned issue in the court below to determine the validity of a judgment entered upon the 26th day of February 1872, upon a judgment-note executed by Lewis A. Turner for the sum of $204, on the 21st October 1871, for a just debt owing by him to Sleek & Blackburn. It was payable in sixty days. On the 10th April 1872 certain creditors of Turner presented a petition to the District Court of the United States for the Western District of Pennsylvania, to have Turner adjudicated a bankrupt. Under these proceedings an assignment was made to the plaintiff below on July 5th 1871, and the fund in court having been raised under an execution upon the judgment, the assignee came in and claimed the money on the ground that the judgment was a fraudulent preference, and void under the thirty-fifth section of the Bankrupt Law, the Act of Congress of March 2d 1867. This section provides that “ if any person, being insolvent, or in contemplation of insolvency, within four months before the filing of the petition by or against him, with a view to give a preference to any creditor or person having a claim against him, or who is under any liability for him, procures any part of his property to be attached or seized in execution, or makes any pledge, assignment, transfer or conveyance of any part of his property, either directly or indirectly, absolutely or conditionally, the person receiving such payment, pledge, assignment, transfer or conveyance, or to be benefited thereby, or by such attachment, having reasonable cause to believe such person is insolvent, and that such attachment, payment, pledge, assignment or conveyance is made in fraud of the provisions of this act, the same shall be void, and the assignee may recover the property or the value of it from the person so receiving it or so to be benefited.”

On the trial of the feigned issue, the learned judge was requested to charge the jury “that if the note on which the defendants’ judgment was entered was given for a valuable consideration more than four months before the commencement of the proceeding in bankruptcy against L. A. Turner, then the judgment and fi. fa. issued thereon are valid, although the judgment wa.s entered and fi. fa. was issued within four months of the commencement of said proceedings in bankruptcy, and the verdict must be for the defendants.” This point the learned judge refused to affirm, but, on the contrary, instructed the jury that when the entry of judgment and execution and levy are made within the four months before the petition of bankruptcy, the preference thus given is invalid, although the judgment-note was given more than four months before. In this we think there was error, and as it was an error which ran through and infected the whole charge, it will be unnecessary to consider the other assignments.

It is clear that Turner did not procure the judgment to be entered on the 26th of February 1872, within four months of the filing of the petition. As to that entry he was entirely passive. He had made and delivered the judgment-note on October 4th 1871, more than four months before the petition, for an honest debt, to which he could interpose no defence. He was entirely passive so far as the entry of the judgment and the issuing of the execution were concerned. How then could he be said in any sense to have procured the judgment and execution, and thereby given the defendants a preference ? Had the note been a simple note, and the defendants had commenced suit upon it, and in due course obtained judgment for want of a plea or affidavit of defence, the case would have been no stronger. The Supreme Court of the United States have decided that something more than passive nonresistance in an insolvent debtor is necessary to invalidate a judgment and levy on his property when the debt is due and he has no defence: Wilson v. The City Bank of St. Paul, 31 Leg. Int. 29. It was held also in that case that, though the judgment-creditor may know the insolvent condition of the debtor, his levy and seizure are not void under the circumstances, nor any violation of the Bankrupt Law. We regard this decision as directly in point, and are bound to receive it as an authoritative exposition of the Act of Congress by the highest tribunal in the land invested by the Constitution with the power of deciding such questions in the last resort.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Mercur

text:
    Culbertson’s Appeal.
    1. After payment of a decedent’s debts from the sale of Ms real estate, by order of the Orphans’ Court for that purpose, the administrator, widow and heirs, without the settlement of an administration account, adjusted a sum as the “ dower” of the widow, to be retained by the administrator, the interest to be paid to her during life and the principal to the heirs at her death. The widow and all heirs joined in a request to the administrator to pay the principal to her. Held, that she was entitled to receive it upon all giving t'o him proper releases.
    2. The Orphans’ Court had jurisdiction over the administrator and the fund and could decree a determination of the trust.
    3. Although a trust may not have ceased by expiration of time, or its purposes may not all have been accomplished; if all who are or may be interested are in existence and sui juris and consent, courts of equity may decree a determination of the trust and a distribution of the fund, amongst those entitled.
    3. A trust continues in equity no longer than the thing to be secured by it demands.
    5. Under Act of February 24th 1834, sect. 46, a tenant for life'in real' estate sold for payment.of debts has a right to receive the surplus on giving-security to protect those in remainder, and they may waive the security by-writing filed of record.

      May 14th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and G-ordon, JJ.
    Error to the Orphans’ Court of Cumberland county : No. 112, to May Term 1874. In the estate of John Culbertson, deceased.
    The proceedings in this case commenced by the petition, June 7th 1871, of Hannah Culbertson, widow of John Culbertson, deceased, and Samuel D. Culbertson, James S. Culbertson, Nancy B. Culbertson, Alabama E. Culbertson, Cumberland R. Culbertson and William E. Culbertson, “parties in interest of the estate ” of'the decedent, by their attorney in fact, Joseph F. Culver. The petition set out the death of John Culbertson intestate, in April 1850, the grant of administration of his estate to William Culbertson and William Keller, the death of Keller in February 1869: that the estate of the decedent had “been settled and closed” except a fund of $2424.50 in the hands of the surviving administrator, the interest of which was payable to the widow during life, and the principal to the other petitioners at her death. The petition further set out that all the parties in interest had agreed that the widow should receive the fund and that they would release the surviving administrator from all liability for it: that the administrator declined to pay over the fund. The prayer was for a citation to William Culbertson, the administrator, to show cause why he should not pay over the fund “to the said parties in interest upon their giving him a proper release,” &c.
    The administrator filed an answer admitting the material allegations in the petition.
    In his answer he declined to pay over the fund unless compelled by the court for the reasons:—
    1. That the time had not arrived when by law he was required to pay the fund.
    2. That it was of importance “ to the security and comfort of the widow that it should not be paid over, as he is well satisfied that certain of the parties intend to control the fund if paid over, and that the interest of the widow would by no means be certain by payment to her.”
    3. That the widow and the daughter, Alabama, were not in a condition of mind to execute a release and “ would .be easily practised and imposed upon.”
    The matter was referred to E. E. Beltzhoover, Esq., as auditor to report the facts and his opinion.
    He reported that John Culbertson died leaving a widow and six children, the petitioners, as stated in the petition, owning real and •personal estate to a large amount; that the real estate had been sold by the administrators by order of the Orphans’ Court for the payment of his debts. After the confirmation of the sale November 4th 1851, and the payment of the debts; “ an agreement and settlement ” between the administrators, widow and guardian of the minor children was made by which her dower was adjusted at $2424.50, of which she was to receive the interest during her life, and the principal to go to the heirs of John Culbertson at her death. Under this agreement the fund had remained in the hands of William Culbertson, who had paid her the interest annually up to the 1st of April 1871. About the same time the widow and children — they all having attained full age — -joined in a request to the administrator to pay over the principal of the fund to the widow, declaring that it was their “ desire to release all our claim in remainder or reversion to said dower estate to said Hannah Culbertsonall the parties offering to execute and deliver to the administrator proper releases and to discharge him of record.
    There was evidence taken by the auditor as to the capacity of the widow and Alabama F. Culbertson: he reported that it did not sustain the allegation that they were not capable of executing a valid release.
    He also reported as his opinion that the payment of the fund to those entitled should be decreed upon their giving to the administrator proper releases.
    Upon exceptions, the court (Junkin, P. J.) overruled the report, saying in the conclusion of the opinion: “ The law of the auditor is unexceptionable, but reflection has compelled us to refuse the decree, which it was the purpose of the investigation to secure. Let the money he paid-as contemplated when the trust was created, and no faster.” He refused a decree to dissolve the trust.
    The widow appealed to the Supreme Court and assigned the decree for error.

      J. B. McPherson and F. F. Beltzhoover, for appellant.
    Courts will give effect to the agreement of parties having the entire legal and beneficial interest of property, to dispose of it in a particular way: Perry on Trusts 882, 833; Eowditch v. Andrew, 8 Allen 339.

      W. 3. Miller, for appellee.
   Mr. Justice Mercur

delivered the opinion of the court, May 18th 1874.

After payment of the debts of John Culbertson, deceased, and of a distribution to his children of the sums to which they were then severally entitled, there remained in the hands of his administrator, the appellee, the sum of $2424.50. This was one-third of the remaining proceeds of a sale of the intestate’s real estate. An agreement was entered into between the widow, the guardian of the minor children, and the administrator of the decedent, by which the money should remain in the hands of the administrator, the widow to receive the interest upon it, and at her death the principal go to the heirs of John Culbertson. It had so remained for nearly twenty years; the appellee paying over to the appellant the interest annually. It does not appear that the administrator ever settled any final account. In the meantime all the children of the decedent became of age, and they being sui juris, united with their mother, the appellant, in requesting the administrator to pay over^ to her the whole fund; the widow and heirs at the same time offering fully to release and discharge of record the administrator and his sureties. The appellee refused to pay it over. Upon application to the Orphans’ Court by the widow and heirs a citation was awarded commanding said administrator to appear and show cause why the fund should not be paid over upon his receiving a proper release. To this the appellee assigned, substantially, as reasons for his refusal;

1. By the terms of the trust he was not to pay over the fund until the death of the widow.

2. In case it passed into her hands she was under the influence of persons who would defraud her out of it.

3. She and one of the heirs were not in a proper condition of mind to execute a valid release.

The court referred the case to an auditor, who found the allegations were not sustained by the evidence, and that the fund should be paid over. Nevertheless, the court, without questioning the correctness of his- finding of facts, and conceding the entire accuracy of his law, refused to decree the payment of the money, and a dissolution of the trust. This refusal is assigned for error.

It must now be considered a well-settled rule in equity that, although a trust may not have ceased by expiration of time, and although all its purposes may not have been accomplished, yet if all the parties who are or who may be interested in the trust property are in existence and are sui juris, and if they all consent and agree thereto, courts of equity may decree the determination of the trust and the distribution of the trust-fund among those entitled thereto: Perry on Trusts, §§ 274 and 920; Smith v. Harrington, 4 Allen 576 ; Bowditch v. Andrew et al., 8 Id. 339.

The principle appears to be well recognised that no matter what may be the nominal duration of an estate given to a trustee, it continues in equity no longer than the thing sought to be secured by the trust demands. Hence a trust for the separate use of a married woman ceases on the death of the husband, or on her divorce from him : Kœnig’s Appeal, 7 P. F. Smith 352.

While the Orphans’ Court has not the general jurisdiction of a court of equity, yet within the sphere of its jurisdiction it is essentially such in its proceedings and in its decrees: Commonwealth v. Judges, 4 Barr 303. It is not, however, bound by the strict rules of equity practice, nor by the elaborate forms of equity pleading. Johnson’s Appeal, 9 Barr 419. The court had undoubted jurisdiction over the administrator and of this fund.

This money came from a sale of that portion of the real estate of the decedent in which the widow had substantially a life-estate. It was sold for the payment of debts. She was entitled to the interest on this residue during her life. The 46th section of the Act of 24th February 1834, Purd. Dig. 431, pl. 126, clearly recognises the right of a tenant for life in real estate sold for the payment of debts, to receive the surplus, upon giving security to protect the interests of the persons entitled in remainder. The right of such persons, being under no legal disability, to waive that security by writing duly executed and filed of record, cannot be questioned. This, in effect, the heirs have proposed to do, so as for ever to bar any claim they might have against the administrator.

The purpose for which this fund was left in the hands of the appellee was to protect for the heirs the corpus of the estate. This was the thing sought to be secured. That object has been accomplished. The purposes of the trust have been fulfilled. The heirs are of full age, and now desire to take control of their property and place it in the hands of the person who is entitled to its use. Why shall this reasonable request be denied ?

The court appears to have based its refusal on, 1. A suspicion of the imbecility of the appellant; 2. A fear that the fund would be invested in hazardous speculations in the Western States, and thereby be lost to the appellant.

As we have already shown, the first ground is not supported by the proof. The second seems to us not to rest on any substantial basis. It is possible such may be the result. A bare possibility, however, will not justify the withholding of the fund. The affirmation of such a doctrine would tie up a trust-fund for ever.

The appellant now represents all the parties interested in the fund. She conies, then, not supplicating for a favor, but asserting a right. She asks, inasmuch as the right to the possession of the corpus of the trust, as well as the use of it, are both united in her, that the actual possession of the fund shall be decreed to her. In the absence of any substantial reason to the contrary, we see not why this request should be denied. It depends not upon mere judicial discretion, but is demandable of right.

We think the learned judge erred in refusing to grant the prayer of the appellant, and the action of the court must be reversed.

And now, it is ordered that the record be remitted, with instructions to the court to decree a determination of the trust and payment of the fund to the appellant, upon the execution by her and by the heirs of proper releases to the administrator; and that the costs of this appeal be paid by the appellee.


author: Per Curiam.

text:
    Wilmoth versus Canfield.
    1. Three tracts had been assessed as one entire seated tract and the taxes paid by the owner, two were during the same time separately assessed as unseated and sold for taxes. The sale being void, held, the owner’s possession of part extended to the whole body.
    2. The purchaser at the tax sale entered and cultivated part of the tracts he purchased. Held, that his entry did not extend his possession beyond his pedis possessio, and the owner could maintain trespass against him for cutting timber outside of his cultivation.
    3. Making a survey and cutting timber on another’s land in his actual possession is not a constructive ouster.
    4. O’Hara v. Richardson, 10 Wright 386, followed.
    May 14th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur- and Gordon, JJ.
    Error to the Court of Common Pleas of Somerset county: Of May Term 1874, No. 90.
    This was an action of trespass quarc clausum fregit, commenced January 8th 1872, by E. C. Thomas and Ira Canfield against Alfred Wilmoth. The plaintiffs were trustees of the Southampton Association, the beneficial owners of the land. Thomas, one of the plaintiffs, having died, his death was suggested on the record, and the case went to trial in the name of Canfield alone.
    The case was tried September 16th 1878, before Hall, P. J.
    The alleged trespass was committed on two tracts of land designated in the trial as the Douglass tract and the Hallowell tract. These tracts — the Douglass as containing 316 acres, the Hallowell as containing 283 acres — and a third, called the Redman tract, as containing 305 acres — were patented October 16th 1795 to John F. Mifflin; he having died, his representatives, on the 29th of October 1834, conveyed them to E. L. Anderson.
    The plaintiff gave evidence of payment by E. L. Anderson of the taxes on these tracts, separately as unseated, from 1842 to 1847 inclusive. In 1848 they were sold to Ross Forward for non-payment of taxes and redeemed by Anderson. In 1850-1851 Anderson paid the taxes; in 1852-1853 Forward paid the taxes. On the 3d of July 1853 Anderson sold to Forward. On the 18th of July 1854 Forward conveyed to the Union Coal and Iron Company. Forward paid the taxes from 1854 to 1857 inclusive. These tracts were sold by the sheriff to Jacob Trust, under a judgment against the Coal and Iron Company, and the deed made to Trust September 16th 1858. On the 7th of June 1859 Trust made a bond of conveyance to Stabler and others, called the Southampton Association. On the 11th of June 1860 the Douglass and Hallowell tracts were sold for taxes to Walker and Wilmoth, and redeemed by Trust June 2d 1862. On the 3d of May 1864 Trust conveyed the Anderson tracts to the Southampton Association, who on the same day conveyed to the Somerset Iron and Coal Company. Under a judgment against the Somerset Company, “ a certain tract known as the Anderson land, containing 400 acres more or less,” was sold by the sheriff to E. C. Thomas and I. C. Canfield, and the deed made November 15th 1866 to Thomas and Canfield, who made a written declaration of trust, which was recorded, that they held for the Southampton Association. From 1860 to 1870 inclusive, the Anderson tract, as containing 400 acres, was assessed as seated land in the name of the Southampton Association.
    There was evidence from collectors, supervisors and others that the taxes on the Anderson lands had been paid by the agents of the Southampton Association for every year from 1860. Also that there were cultivated fields on the Redman and Douglass tracts. The entering on the Douglass and Hallowell tracts and cutting timber by the defendant, were admitted by him.
    The defendant gave evidence that the Douglass tract and Hallo-well tract had been assessed as unseated from 1862 to 1869, the Douglass as 216J acres and the Hallowell as 133 acres, and that taxes for 1862-1863 had been paid on both tracts separately by the Southampton Association ; that the Douglass tract had been sold for the taxes of 1864-1865 to J. M. Holderbaum, and treasurer’s deed made to him August 28th 1866. The Hallowell tract had been sold for taxes to the commissioners for the same year, and treasurer’s deed made to them August 28th 1866. On the 9th of June 1869 Holderbaum conveyed the Douglass tract to the defendant. On the 13th of September the commissioners conveyed the Hallowell tract to John D. Roddy, and 21st of September Roddy conveyed it to the defendant. Holderbaum and defendant paid taxes for the Douglass tract for the years from 1866 to 1871 inclusive.
    Alfred Wilmoth, defendant,.testified: “ Right away, after I got deed from Holderbaum, I took possession of the Douglass tract,, and cleared a field and put it in wheat that fall; have had two crops; got it put out on the shares; cut timber on it; had it cut under me ; the company knew of my taking possession ; Mr. Long (agent of the association) was along and saw the lines run; Thomas and Canfield were not along; Mr. Kneaream paid me for bark ; some bark had been cut and was' on the land, and after I took possession I notified Kneaream not to haul' it away without paying' me for it, and he paid me for it in the presence of Mr. Long, by his instructions; Long told Kneaream before me; there was also a corner that Reyhart had cut, and he paid me for it — $5—by Mr. Long’s authority; this bark was cut on the Douglass tract, and Mr. Long knew' that it was on that tract; I have cut on the tract, and wouldn’t allow any one else to cut, except through me, ever since I bought it from Holderbaum; I took possession of the Hallowell tract right away after I got it from Mr. Roddy, and went on to cut props on it, or get Close to cut them; I notified Long that I had bought that tract and was going to cut on it; I did not do anything in the way of taking possession, except ran the lines and cut the props, and I. also paid the taxes ; John Witt ran it once for me; he ran the Douglass twice ; the first time he ran the Douglass was while Wellman was agent; then I got Mr. Colborn to run the Douglass; he sent Raudabaugh to run it for him; that was the time it was decided about the bark ; I told Mr. Long if he would go to cut on Iíallowell, I would put him through.”
    There was other evidence corroborating Wilmoth; also evidence by plaintiff in rebuttal, contradicting him.
    The defendant’s points were:—
    1. If the jury believe that the defendant had the actual possession of the lands on which the alleged trespass was committed, under color of title, he cannot be treated as a trespasser, and the plaintiff cannot recover in this action, although he may have the superior legal title.
    2. If the jury believe that the defendant took possession of the lands by causing them to be surveyed, the lines to be marked on the ground, cutting timber, clearing and cultivating the lands or any part thereof, and exercising acts of ownership, then he had such possession as will prevent him from being treated as a trespasser, and the plaintiff cannot recover.
    The court charged:—
    * * * “ The plaintiff claims that he held these lands as the trustee foy a company of persons known as the Southampton Association.
    “ This action can be maintained only by the person having the actual possession when the trespass was committed.
    “ This suit was instituted on the 1st of January 1872. It relates to any trespasses that are complained of in the declaration, committed on the plaintiff ’s actual possession within the period of six years before that date.
    “The plaintiffs allege that they and those.under whom they claim had paid taxes regularly on this land from 1842 up to this date. They showed by the records of the treasurer’s office that E. L. Anderson paid the taxes for 1842, ’43, ’44, ’45, ’46 and ’47 ” * * *
    The court then recapitulated the chain of title by which each party claimed.
    “ Did the plaintiff have actual possession of the Douglass tract in 1869 and of the Hallow ell tract in 1871 ? Did Wilmoth enter on that possession and cut the timber ? What is the value of the timber cut and taken away ? Did Wilmoth get title or right of possession by two deeds from Holderbaum in 1869, and Roddy in 1871, such as entitled him to enter upon the plaintiff’s possession (if he had any) and cut the timber ?
    “ [The plaintiff has attempted to show you by the supervisors and collectors of taxes that the taxes for 1864 and 1865 were paid in the township on the seated lists. This is a question of fact for you to determine from the evidence, which has been fully discussed to you by the counsel on each side. Were the taxes so paid ? If they were, the sale by the treasurer was void and conveyed no title.] The measure of damages is the value of the timber cut by the defendant as it stood on the ground.
    “ The counsel on both sides have submitted points in writing, which have been read in your hearing. We have answered them substantially in the general charge. [If the plaintiff was- in the actual possession of the whole body of lands, including these tracts, and paid the taxes regularly, and paid all the taxes of every kind assessed on these lands for 1864 and 1865 in the township, on the seated lists, then the sale by the treasurer was illegal and void and conveyed no title, and the defendant’s entry and cutting of timber was a trespass for which the plaintiff ought to recover in damages the value of the timber as it stood before it was cut.”]
    The verdict was for the plaintiff for $190.
    The defendant took a writ of error, and assigned for error the portions of the charge in brackets, and that the court did not affirm his points.

      A. H. Ooffroth (with whom was A. J. Oolboni), for plaintiff in error.
    Land does not become seated until one enters on it with the intention to improve it and derive profit from it: Ellis v. Hall, 10 Barr 296. Seating the Redman tract would not legalize the assessment of the other tracts on the seated list; they were not connected with any ownership so as to identify them: Lyman v. Philadelphia, 6 P. F. Smith 501.

      P. II. Gaither, for defendant in error.
    All the Anderson tracts were assessed as an entire seated tract, and the assessor could not, on the representation of a person in possession, claiming part of the land, give it the character of unseated land: Harper v. Farmers’ & M. Bank, 7 W. & S. 204; Larimer v. McCall, 4 Id. 138; Milliken v. Benedict, 8 Barr 169.
   Judgment was entered in the Supreme Court, May 18th 1874.

Per Curiam.

The charge of the court as to the tax-title was so clearly right no comment is necessary. The payment of the taxes was a question of fact fairly left to the jury. The taxes being paid, for which the land was sold, the tax-title necessarily fell.

We have some hesitation as to the omission of the court to charge on the defendant’s second point. It would have heen better had the court answered it specially, so as to define distinctly to the jury what constitutes possession and ouster. Still we are not able to say that the general charge was so wholly inadequate, as an answer to the point, as to require a reversal. The court distinctly, and more than once, told the jury that the plaintiff could not recover without actual possession of the land. Under this charge the verdict must have been for the defendant, if the jury found that the plaintiff was not in possession of the locus in quo. But the tax-title being void, if the plaintiff were in actual possession of his land, the law extended this possession presumptively throughout the whole. Hence the defendant could not by his entry extend his possession beyond his pedis possessio, unless by an actual disseisin. Consequently the defendant could not have had a constructive possession beyond that within his fields or cultivation. The actual possession of the plaintiff found by the jury necessarily covered all the rest of the land not included within the defendant’s fields or cultivation. The making of a survey and the cutting of timber on another’s land in his actual possession, afford no ground for a constructive ouster: O’Hara v. Richardson, 10 Wright 386. If the defendant did enter and clear land in this case, the actual possession of the plaintiff being found by the jury, we must presume that the jury -found this actual possession to include the locus in quo.

Judgment affirmed.


author: Mr. Justice Gordon

text:
    Koontz versus Franklin County.
    1. By law the first meeting of county commissioners commenced on the first Monday in February in each year ; on that day they appointed a clerk for one year from the first day of the succeeding April. Held to be in excess of their authority — the appointment should be made each year.
    2. The appointment of a public officer and the services rendered by him are not in the nature of a contract.
    5. There can be no express or implied contract for the permanence of a salary of a public officer, unless as specifically provided in the Constitution.
    May 14th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Common Pleas of Franklin county: Of May Term 1874, No. 103.
    This was an action of assumpsit, brought May 21st 1872, by Henry C. Koontz against The County of Franklin.
    The plaintiff had been clerk for the county commissioners, and his claim as filed in the case was for “ $166.66, the monthly salary for the months of February and March 1872.”
    By a special Act of Assembly, the retiring county commissioner of Franklin county vacates his seat on the first Monday in February in each year, and his successor assumes the office.
    On the 1st Monday of February 1870, upon the organization of the board, the plaintiff was elected clerk of the commissioners for one year from April 1st 1870, at a salary of $1000 per annum. On the 6th of February 1871, he was elected for another year from the 1st April 1871. He served up to the 5th of February 1872, when the commissioners elected another clerk and plaintiff was not permitted to go on and discharge the duties; he had been paid up to January 31st 1872. He claimed that his appointment extended until the 1st of April 1872, and that he was entitled to be paid up to that time notwithstanding his discharge.
    The foregoing facts sufficiently exhibit the case as it was considered by the Supreme Court.
    The plaintiff’s first point was:—

      “ If the jury believe from the evidence, that the board of commissioners, at their first meeting, to wit, on the 8th of February, A. D. 1870, appointed the plaintiff clerk to the board for one year, at a salary of one thousand dollars, and that his term of office was to begin on the 1st of April, A. v. 1870, and end on the 1st of April 1871, and if the jury further believe that at the meeting of the board of commissioners in February, A. D. 1871, they again appointed the plaintiff clerk, at the same salary, for another year, to begin on the termination of the first year — this was such a contract as the board of commissioners had a right to make — was binding on the county, and the plaintiff had a right to hold the office until the 1st day of April 1872, and could not be discharged therefrom before that day, except for good and sufficient cause.”
    This was refused.
    The defendant’s point was :—

      “ If the jury believe from the evidence that the plaintiff was employed by the county commissioners for the term of one year, commencing on the 1st day of April, A. D. 1871, the contract, so far as it embraced any period of time, after the commencing and organizing of the next succeeding board of commissioners, was without binding force and could be rescinded or annulled at the pleasure of the new board, without liability to the plaintiff.”
    This was affirmed.
    The court charged:—
    “ The plaintiff is not entitled to recover from the defendant for his services as clerk for the period from the 6th February 1872 to 1st April 1872. He is entitled to recover for the period from 31st January 1872, to 6th February 1872, as it is not disputed that he has not been paid for that time.”
    The verdict was for the plaintiff for $16.44; he took a writ of error and assigned for error the answers to the points and the charge of the court.

      The Act of April 13th 1834, sect. 50, Pamph. L. 541, 1 Br. Purd. 302, pi. 7, enacts:
    “ It shall be the duty of the commissioners of each county to appoint a suitable person as clerk, who shall keep the books and accounts of the board, record or file their proceedings and papers, attest all orders and warrants issued by them, and perform all other acts pertaining to his office as clerk; he shall receive for his services such sum as the commissioners shall, at .their first meeting in each year, agree Upon.”

      J. McD. Sharpe, for plaintiff in error,
    referred to the Act of April 13th 1834. A contract with the commissioners, within the scope of their authority, is binding on the county: Jefferson County v. Slagle, 16 P. F. Smith 202.
    6r. W. Brewer, for defendant in error.
   Mr. Justice Gordon

delivered the opinion of the court, May 25th 1874.

We discover no error in the ruling of the court below. The appointment made by the commissioners of Koontz as their clerk, at their first meeting in February 1871, to commence on the 1st day of April then next, to run for one year from that time, was certainly in excess of their authority. The Act of 13th April 1834, sect. 20, after providing for the appointment of a suitable person as clerk, further stipulates that “ he shall receive for his services such sum as the commissioners shall, at their first meeting in each year, agree upon.” As the salary of the clerk is thus to be fixed at the first meeting of the commissioners in each year, we may reasonably conclude that the act contemplated an appointment each year. For if we suppose otherwise, then, firstly, one board of commissioners may appoint a clerk for any given number of years, and thus forestall the action of subsequent boards. The effect of this would be to impose upon such subsequent boards an important confidential servant who might be utterly repugnant to them. This would certainly be contrary to the policy of the law, which intends that the clerk shall be the exponent of the will of the commissioners, and should therefore be one who is not merely skilful in the performance of his duties, but who also enjoys the confidence of his employers. But, secondly, under this construction, we should have a contract definite and fixed as to time, but, beyond one year, indefinite and uncertain as to compensation. For indubitably under the statute the compensation must depend upon the annual action of the board. We are thus led into a legal solecism, whi,ch it is better to avoid by giving the act its natural construction, that is, as the power of the commissioners to contract for compensation is limited to one year, so in like manner is their power of appointment limited to the same period. But treating this appointment as though it were a contract, is putting the matter in too favorable a light for the plaintiff.

As is said in the case of The Commonwealth v. Bacon, 6 S. & R. 322, “ the services rendered by public officers do not, in this particular, partake of the nature of contracts, nor have they the remotest affinity thereto.”

The ruling in this case was that an ordinance of the city councils reducing the salary of the mayor of Philadelphia, after the time of the commencement of .his term of office, was valid. This case, though not precisely similar to that now in hand, nevertheless contains the principle governing it. That we are not mistaken in this, a reference to the later case of Barker v. The City of Pittsburg, will show. Here it was held that where the city councils had appointed a collector of tolls for the aqueduct over the Allegheny river for the term of one year, at a salary of $500, they might dismiss him at the end of six months, though he was in no default, and that, having been paid for the time he served, he could recover nothing more. Furthermore, the ease of Commonwealth v. Bacon is cited as a conclusive precedent, and the doctrine is reiterated that there can be no contract, express or implied, for the permanence of a salary other than such as is specifically provided for by the Constitution.

These cases, without more, demonstrate the correctness of the ruling of the learned judge of the Court of Common Pleas, and the judgment is therefore affirmed.

Mr. Justice Mercur dissented.