text:
    Fidelity Insurance Company’s Appeal.
    1. Upon sufficient cause shown a decree of divorce may be vacated, although the libellant is dead and more than twelve years have elapsed since the decree was made.
    ■ 2. In a proceeding to vacate such a decree, after the death of the party who procured it, the party applying is within the exceptions to the Act of 1869 and is not a competent witness.
    February 23d 1880.
    Before Sharswood. C. J., Mercur, Gordon, Paxson, Trunkey, and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1879, No. 141.
    Appeal by the Fidelity Insurance, Trust and Safe Deposit Company from a decree setting aside a decree of divorce in a proceeding wherein James V. Peterson was the libellant and Sarah Peterson the respondent.
    On the 9th of February 1878, Sarah Peterson filed a petition in the Court of Common Pleas which set forth that the petitioner is the widow of James V. Peterson, who recently committed suicide by jumping from a steamboat; that she was married on the 22d of September 1849, at Flemington, New Jersey, and immediately accompanied her husband to his homo in Trenton, New Jersey, where she resided with him about one year. Thereafter she resided with him at Knoxville, Tennessee, Cincinnati, Harrisburg, and at Philadelphia, coming to Philadelphia in the latter part of the year 1851, or early part of the year 1852, whore she continued to reside with the libellant as his wife, and left the city of Philadelphia, by her said husband’s consent and express direction, on the fourth day of November 1858, to reside with her mother at Flemington, New Jersey, until such time as her said husband should request her to return to his homo ; that petitioner continued to reside at her mother's residence, with the full concurrence of her said husband, until October 24th 1865, when she returned to her said husband’s home at his special request, and continued to live with him as his wife until the month of February 1867, when she loft at his request on account of the unsound condition of his mind and his expressed fear of doing her bodily harm; that during the time she resided away from her husband’s home, she received visits from him at her home in Flemington, New Jersey, and that her husband, the said libellant, contributed to her support during all the time she resided away from his home, until February 1867, when he gave her some money to go to her mother’s homo ; that your petitioner during her absence from her husband’s home received from him a number of letters in which she was recognised by him as his wife, and by reason of which at his request she went to Philadelphia to sign the deeds for properties he had sold after the date of the decree of divorce, several of said letters bearing date subsequent to the date of the decree of divorce, made by the old Court of Common Pleas of said county; that the decree of divorce was made on the 24th of June 1865, and that she did not receive any notice or have knowledge of a divorce, having been applied for or obtained until the month of November 1877, which was after the date of her husband’s death, which occurred on the 10th of November 1877 ; that petitioner utterly denies any desertion on her part, and charges that her husband intended the divorce when he requested her absence. That he did not disclose such purpose to your petitioner, who was left uninformed and unadvised of such proceedings to prevent her just resistance and defence thereto. The petitioner then prayed that the decree of divorce might be vacated.
    A rule to show cause was granted, and depositions taken on both sides. The facts will be found in the following opinion of Yerkes, J., in the court below.
    “ In June 1863, James V. Peterson filed his libel in divorce, alleging desertion on part of his wife, Sarah Peterson. May 25th 1865, an examiner was appointed, and in Juno of the same a divorce was decreed.
    “ This decree she now seeks to have vacated, on the ground that, although she had notice of the institution of proceedings, she was led to believe that they had been discontinued, and she and her husband had resumed the marital relation before the decree, and continued in it for about two years after decree, and that there was no wilful and malicious desertion within the meaning of the Act of Assembly.
    “Much of the testimony introduced is that of the wife. We think that in this matter she should not be heard. Her husband being dead she is certainly within the spirit of the exceptions of the Act of 1869, and again, as at that time she was not a competent witness, she cannot be heard now to impeach the propriety of a divorce granted when her evidence would not have been received. We look therefore at the record, the evidence of other witnesses of the letters of the libellant and those of the respondent produced on call.
    “ The record shows she was not served, and that no steps were taken beyond filing the libel for almost two years. The letters show that a separation took place in 1858, but that a correspondence, more or less intimate, was kept up between the parties. The letters in evidence refer to others not produced, but we have enough to show the relation of the parties, and to show the various changes in their disposition and intentions. We have nineteen letters of Mr. Peterson written to Mrs. Peterson between May 1863, and November 1865, and six written by Mrs. Peterson. This correspondence also shows frequent interviews.
    “ The letters of the parties between May 25th and September 7th 1863, show that the parties after the long separation of five years were mutually of the opinion that they should be legally separated. It also appears that in this Mrs. Peterson was the more urgent. In the letter of September 7th it appears that Mr. Peterson had declared that he would take no further trouble in the matter of a separation.
    “On May 27th, Mr. Peterson, referring to his wife’s note of May 25th 1863, writes to her that he desires to converse with her upon the matter mentioned in her note. On June 9th 1863, she writes to him that his letter of the 2d is received, and that she is willing to allow him to commence proceedings as soon as possible. The letter of the wife of September 7th 1863, is the most important of any of the letters of this period. It is quoted entirely :
    “ Elemington, September 7th 1863.
    “ James, yours of the 2d is received. I first wrote you on 25th of May, stating that I thought it best for us to sever this matrimonial tie which has become so irksome to each of us.
    “ You requested me to come to the city, as you wished to converse with me on the subject. I could not make it convenient then to come, and wrote you to that effect. You then assured me in your letter of the 2d of June that you had no opposition to offer to the request made by me in my note of the 25th, but would have my wish carried into effect as early as possible, as you were of the opinion that you could manage the matter better than 1 could, and by so doing could save me much time, trouble and expense. I then gave the matter over to you, supposing you would do what was right. Now, at the expiration of nearly four months, you write that if I am determined to have my own way in the matter you will give your„self no further trouble. I was not aware that I manifested any wilfulness whatever. I merely wished to know whether it was actually necessary for me to go to the city, and if so I would come. I am willing to do all in my power to facilitate the matter; but if you have given the matter over, as you say, why I shall be obliged to have it carried into effect myself, and that without anv further delay.
    Yours, in friendship,
    Sarah Peterson.
    “ It does not seem that thus far there is any evidence that she knew that proceedings had been actually commenced. It is evident that in some letter not in evidence she had inquired if there was an actual necessity for hor to come to the city. When he, in consequence thereof, expressed his determination to give himself no further trouble, had she not a right to think ho was doing nothing, and does not the expression of her determination to act show that she believed that he was not acting ?
    “ Her letter of September 27th 1863, shows a most loving spirit towards her husband. It also shows that an interview had taken place, in which the subject of a reconciliation had been discussed. Her desire for a reunion is very apparent, and there is an entire change from the desire for a separation shown in the letter of September 7th. Upon October 17th, he writes to her requesting hor to come down to join in a deed, and expresses his intention, if her father and mother are willing, to accompany her to hor home in Elemington, N. J. On December 14th, he writes her, acknowledging the receipt of a letter dated the 8th, which said that she expected him to spend Christmas with hor at her home in Flemingfon. He answers that he cannot promise, but that he will be glad to do so. It is clear from these letters that a reconciliation had taken place, but they do not show an actual reunion, although it is clear that the woman who wrote the letter of September 27th 1863, would have followed him to the end of the world if he had wished it. Why she did not do it we cannot exactly see, until his letter of February 18th 1864, is read. In it he acknowledges the receipt of hers of the 13th, and says: ‘As to our domestic difficulties I have nothing new to say, excepting, perhaps, that I do not think I can in justice ask you to leave your father and mother again for me. I am sorry to say so, but I cannot help it.’ Upon the argument much was made of her letter of February 24th, which was in answer to this. The wonder is that she did not say more. All that she did say was justified by what he had said. She truly says, that if he earnestly desired a reunion, as he said, he would not let father nor mother nor anything else on earth stand in the way. From this time forth it cannot be said that there was wilful and malicious desertion on the part of this wife.
    “ There are but two more letters of the wife in evidence. They are relied on as showing that she knew that a suit in divorce had been begun. From them alone it is hard to say whether the divorce case alluded to was ‘ in esse’ or ‘ in fieri.’ At all events she did not seem to know that anything was being done. In her letter of September 18th 1864, she wants to know if it remained the same as when she was down, or had further steps been taken. Then comes the following letter of November 31st 1864.
    “Flemington, Nov. 31st 1864.
    Monday Evening.
    “Dear James: — Yours of the 17th was duly received. You say that you are sorry that I cannot properly appreciate your motives and feelings in saying that you cannot ask me to leave home again. I do understand you perfectly well. You do not wish to destroy the peace and happiness of my father and mother for the sake of promoting your own.
    “James, as my parents are so strongly opposed to a reunion, I am compelled to say that you will be obliged to have the divorce carried out.
    “James, the blessed hope which will sustain me through the remainder of my lonely life will be-that we shall meet again; though it may be never in this life, there is a world of bliss beyond this vale of tears, where sorrow and grief are unknown.
    “ I was glad my picture was a good one. How I should like to have one like it, so that we could each have one alike. Please think of me sometimes as
    Your unhappy wife,
    Sarah Peterson.
    “ He takes no step in the divorce suit, but as her letter of September 7th 1863, brought about the reconciliation disclosed in her letter of September 27th, it seems that this letter of similar tone had the same result. It appears that when she tired of her anomalous condition, expressed her intention of ending it, then he wanted to be reconciled and reunited, but when she was willing he was not. The meagre evidence in the case does not disclose all the steps leading to the reconciliation taking place subsequent to her letter of November 31st 1864, but it is clear that it took place speedily, and that there was no break or hitch until she finally left his home in 1867.
    “ In his letter of January 14th 1865, he speaks of a recent visit to her at Flemington. Upon February 24th 1865, he writes that he had expected to have been in Flemington before he wrote, but that on account of the draft he was unable to do. He writes again March 16th. In this letter there is nothing material, other than it shows the continuity of the amicable relation. Several witnesses testify as to a vist ho made to his wife at Flemington in April. It was of several days duration, and is fixed as occurring just after the death of Mr. Lincoln. It may as well be noticed here that a visit was also made by him late in the summer of 1865. Mrs. Forker, the mother of the respondent,.and with whom she lived, in her deposition says, that Mr. Peterson made several visits to his wife in I860, that the visits lasted generally from Saturday to Monday, and that they occupied the same room.
    “We have no letters of either party during the months of May, June and July 1865, and no testimony as to the relation of these parties during that period. The record shows the appointment of an examine'’ upon May 25th 1865, and a decree June 24th I860.
    “ Upon August 8th 1865, he again writes to her, and in the next ten weeks he writes her seven letters, all of which are addressed to Mrs. Sarah Peterson. In that of August 8th, he speaks of the prospective visit of his nephew Charles to her at Flemington. Charles lived with them before they separated, is spoken of frequently in this correspondence, and seems to have been almost like an adopted child of Mr. Peterson. In his letter of August 28th, he acknowledges the receipt of her letter of the day before, and says that ho is glad to hear that Charley is contented, and wishes a good place could be obtained for him there. Upon August 28th, he again speaks of Charley’s visit, his wish that he could find a place for him there, and of his own expectation to visit Flemington on the succeeding Saturday. Upon September 6th, he writes to her of the liklihood of his selling a house, and asks her to come to the city to acknowledge the deed.

      “ His letters to her dated October 6th, 11th and 19th 1865, arc remarkable, coming from a divorced man to his divorced wife, and cannot be reconciled with her knowledge of the divorce, and seem totally inconsistent with his knowledge of it. The letter of October 11th does not in its heading indicate the year distinctly, but its substance shows it to bo subsequent to that of October 6th, and that it is one of this series of letters. In that of October 6th, he says that he went to Flemington on Monday to see if she would come to him, that she did not seem able to make up her mind, that her father had said that if she left, he and his wife would break up and board, that he did not want this done, and had concluded, as soon as he could, to sell out in Philadelphia, to go to Flomington, buy her father’s house, so that all could live together. After much more, he closes thus: ‘You must be your own judge whether you come on Monday or not; the number is 1245 North Eleventh street.’ He adds, in a postscript, that the reason he speaks of going to Flemington and buying her father’s house, is that she suggested it on Tuesday night. In the letter of October 11th he addresses her as ‘ My dear wife,’ in all others as ‘ My dear Sarah,’ or ‘ Dear Sarah.’ He speaks of his disappointment in having received a letter from her instead of seeing her. Then says that he has never been so miserable and unhappy since their separation, as he has been since her father said if she left, he and her mother would break up and board. This fixes the letter as having been written in 1865, subsequent to the conversation detailed in his letter of October 6th. The rest of this long letter is full of consideration of her duty to her aged parents, and seems to concede that her prior duty is to them ; but its unhappy tone would bring a true woman to her husband if she loved him at all. Upon October 19th, he writes that he has told his servant that he will keep house no longer with her. He also says that he will not give the person who wishes his house a decided answer, for in his own words, ‘ I would like to know if you are still of the opinion that you would be willing to come and give it a trial of being alone in the house during the day before you bring all your goods.’
    “ The next we know is that they are living together at the house mentioned in the letter of October 6th. Mrs. Forker’s testimony clearly established that they were so living in 1866. The evidence of several witnesses also establish the fact that Mr. Peterson always spoke’of the petitioner as his wife, and that this continued up to his death. They separated in 1867, and met but once afterward. On November 4th 1865, he made a deed in which she joined as his wife.
    “ The conduct of Mr. Peterson is entirely inexplicable. Twice, when he and his wife seemed to have reconciled their difficulties and wei'e upon the point of re-uniting, he prevents a re-union by referring to her duty to remain with her parents.
    “ Again her duty to her parents is put in a strong light just before the final re-union. There is nothing in the correspondence to show that he was not acting in good faith. His anxiety for their welfare seems entirely sincere. He obtained, however, divorce, and must have known it; he certainly remembered it, since after the final separation he passed titles without her joining. Before the divorce, whilst they were separated, he had her to join in his deeds. We hardly think that he intended to perpetrate the great outrage that was done to his wife. We think it the result of mental rather than moral obliquity.
    “ Can this decree be vacated ? The case is clear of certain ole-merits which have embarassed the consideration, of others. Here there was no subsequent marriage, and the offer of the petitioner, made in open court, to release her interest in all properties conveyed by her husband without her joining, relieves it of all solicitude for purchasers, whether for value or not. The case of Smith v. Smith, 3 Phila. R. 489, also reported as Boyd’s Appeal, 2 Wright 241, is authority here. The grounds of divorce there were desertion. The depositions taken on behalf of the petitioner showed, as they do hero, that there was no wilful and malicious desertion. Here in addition, we have the resumption of the marital relation. It was argued here, that in that case the year for an appeal had not elapsed, but that does not appear to have been considered material by the Supreme Court in that case, nor in the earlier case of Allen v. McClellan, 2 Jones 328. Ordinarily control of a judgment expires with the current term, but this rule does not hold where a judgment has been obtained surreptitiously or fraudulently. Nor does there seem to be any reason why it should where there is no one interested except the parties to it and their heirs.
    “ Is there anything to conclude her. Ordinarily knowledge or notice of any kind, ought to conclude parties after decree. But even if it is granted that she had actual knowledge, we think there was enough in this case to convince her that the proceedings had been abandoned. From his letters we find he made her several visits in 1865, and at least two other visits in that year are established by oral testimony. Both before and after the divorce his visits were those of a man to his wife. How complete their reconciliation was at this time, before the divorce, is shown in that soon afterwards she left her parents to go to him, notwithstanding his recognition of their groat need of her, and his almost persuasion of her to remain with them. What else could she think but that all their difficulties were at an end. There is no evidence or pretence that she knew more of the divorce than is contained in the correspondence. In the light of his intercourse with her, his frequent visits, their reunion and living together as man and wife, we must say that we believe that he led her to believe that the divorce suit, if she over knew of it, had been utterly abandoned, and that the decree obtained was a fraud upon her.
    “ Upon filing in this court an agreement to release all grantees of property conveyed by her husband during coverture, and after said decree, without her joining from all claim of dower, and recording such a release in general terms as to such grantees in this county, the decree will be vacated.
    “The above condition is made because of the offer of petitioner.”
    A decree was entered accordingly, when the appellant, the administrator of James V. Peterson, deceased, took this appeal.

      John W. Patton and Charles Hart, for appellant.
    The application to set aside, the decree of divorce entered thirteen years before the petition to vacate it was filed, is in the nature of a bill in equity. He who comes into equity must come with clean hands. Did the petitioner fulfil this requirement ? The basis and foundation of her case is stated in her petition to be her entire ignorance that proceedings in divorce had ever been commenced by her husband. On this vital point she is contradicted by her own letters.
    The application to vacate the decree was too late. There is no authority to vacate a decree of divorce after such a lapse of time. The application to set aside the divorce resolves itself into a question of distribution of the libellant’s estate after his death. In such litigation it would be inequitable to wrest from his heirs and personal representatives an inheritance cast upon them by the law, solely to give it to a woman from whom he had been legally divorced ; who had, while her husband was alive, acquiesced in it for over twelve years, and who did not present her petition to set the decree aside until nearly three months after the libellant’s death : Singer v. Singer, 41 Barb. 139.

      H. W. Gimber and Thomas Greenbank, for appellee.
    The appellant did not know of the divorce until a short time before she made this application to court. Fraud vitiates everything it touches, and time is not an element in this case. All the testimony shows conclusively that appellee did not know of the divorce, and none of her letters disclose the fact of knowledge. The court will set aside a decree of divorce even where one of the parties is dead, where fraud has been practised: Smith v. Smith, 3 Phila. R. 489; Boyd’s Appeal, 2 Wright 241; Allen v. McClellan, 2 Jones 328 ; Van Leer v. Van Leer, 1 Harris 213.
   The judgment of the Supreme Court was entered, March 8th 1880,

Per Curiam.

We have examined with care the evidence in this case, and concur entirely in the opinion delivered by the learned judge in the court below.

Decree affirmed, and appeal dismissed at the cost of appellant.


source: Caselaw Access Project

author: Sir. Justice Sterrett

license: Public Domain

text:
    Swope versus The Jefferson Fire Insurance Co.
    1. Where one alleges that a contract should he avoided on the ground that it was made to compound a felony, it must be shown that there was an agreement not to prosecute, and it must appear by a preponderance of evidence that a crime was actually committed.
    2. Threats of prosecution, unless a certain security was given, will not justify an inference that if the security was given the agreement was that no prosecution would follow.
    February 23d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to tlie Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1880, No. 136.
    Scire facias by the Jefferson Eire Insurance Company, assignee of Philip Coleman, against Enoch Swope, on a mortgage given by defendant to Coleman.
    The defendant pleaded payment, with leave, &c., with notice of special matter.
    At the trial the plaintiff offered in evidence the mortgage, proved its execution and assignment, and rested.
    The defendant then offered to prove by his own testimony, “ that the defendant’s son, Albert, was in the employ of Mr. Philip E. Coleman, who was secretary of the company plaintiff; that in such employment he assisted him as such secretary; that on or about the 1st October 1876, Coleman sent for the witness, and said to him, ‘ Your son has been stealing from the company, and I want you to pay it back;’ that witness asked what amount, to which response was made, ‘Between $700 and $800;’ that witness told said Coleman that he could not pay it, as he had no money and no means of getting any; that Coleman then said, ‘You have your house, mortgage that;’ to which witness responded, ‘ That is all I have in the world, and I am getting old; I can’t do that ;’ that Coleman rejoined, ‘ Well, if that is not done, I’ll arrest Albert, and he’ll go to the penitentiary, sure;’ that the witness declined to give the mortgage, and left; that about a week thereafter, Coleman again sent for witness, who did not respond, but sent his son Edwin; that from what Edwin reported to him on his return, and the contents of another letter immediately thereafter received from Coleman, the witness again called on Coleman, who then said, producing a paper, ‘ This amount is now $1800 that Albert has stolen, and I want to see if you are going to fix it up;’ that witness replied, ‘I am unable; I have no money, and can’t raise any;’ that Coleman said, ‘ Mortgage your property, and I’ll have it taken by the company, and if you do not we will have Albert arrested for his stealing, and put him in the penitentiary ;' that witness became much alarmed and mentally depressed, and under this condition the paper was signed; that it was never acknowledged by the witness; that he never received a cent from Coleman or the company in consideration of the mortgage ; that throughout the transaction the said Coleman acted for the company plaintiif, and not for himself; that the purported certificate of no set-off was not given until ¡November 1878, and witness did not know the purport thereof; and that the compounding of the said felony committed by his son was the only consideration of said mortgage.” The court overruled the offer.
    Also, to prove by his son Edwin, that at the request of defendant, his father, he called upon Coleman in response to a letter from Coleman to his father; that Coleman said he wanted to see his father; “that this stealing of Albert’s had to be made up to the company, and if he (defendant) did not come down immediately, and give the mortgage they had spoken of, the company would at once arrest Albert, and put him in the penitentiary.” Offer overruled.
    The court directed the jury to find for the plaintiff. There was a verdict and judgment in accordance with this direction, when the defendant took this writ, alleging that the court erred in rejecting his evidence and in directing a verdict for plaintiff.

      W. F. Johnson, for plaintiff in error.
    The contract was void, as it was against public policy and impeded the course of public justice. It was founded on an illegal consideration: Edgcombe v. Rodd, 5 East 294; Filson v. Himes, 5 Barr 452. The offence committed by Albert Swope is made a felony by the 107th section of the Act of Assembly of 31st March 1860, Pamph. L. 409; and by sect. 10 of the same act, Pamph. L. 385, the taking of money to compound or conceal the same is in itself a misdemeanor punishable by fine and imprisonment. An action will not lie upon a contract made in violation of a statute: Eberman v. Retzel, 1 W. & S. 181; Wheeler v. Russell, 17 Mass. 280; Prole v. Wiggans, 3 Scott 607; Hinesburg v. Sumner, 9 Vt. 23; Hipple v. Rice, 4 Casey 406; Seidenbender v. Charles, 4 S. & R. 151.

      William D. Wetherill and John F. Belsterling, for defendant in error.
    To avoid a contract or mortgage, on the ground that it was given to stifle a prosecution, the. defendant must prove that a crime was actually committed: Steuben County Bank v. Mathewson, 5 Hill 249; Catlin v. Henton, 9 Wis. 476. A mere threat of a criminal prosecution is not sufficient. The evidence must establish that there was an agreement not to prosecute, and that such agreement was the consideration for the mortgage: Fulton v. Hood, 10 Casey 365; Jones on Mortgages, vol. 1, p. 626; Plank v. Gunn, 2 Wood’s U. S. C. C. 372 (1874); Catlin v. Henton, supra; Ward v. Allen, 2 Metc. 53; Report on the Penal Code, 13. If the plaintiffs had a lawful claim civilly against the defendant’s son, the mortgage must be taken to have been given for that: Wallace v. Hardacre, 1 Camp. 46; Harding v. Cooper, 1 Stark. 467.
   Sir. Justice Sterrett

delivered the opinion of the court, May 3d 1880.

The negotiations which resulted in obtaining from the plaintiff in error the mortgage in suit were conducted, on behalf of the insurance company, by Philip E. Coleman, its secretary. Although the mortgage was given in his name, and by him assigned to the company, it was not taken for himself, but for the benefit of the company which he represented in the transaction. It follows, therefore, that the company, in seeking to enforce a contract obtained through the agency of its executive officer for its own benefit, is bound by his acts affecting the validity of the contract.

It cannot be doubted that a mortgage executed in consideration of an agreement to compound a felony is void, and will not be enforced. Such was the nature of the defence sought to be interposed in this case; and the only question is whether the offers of testimony excluded by the court tended to prove that Albert Swope, the son of the plaintiff in error, fraudulently embezzled money of his employer, the insurance company, and thus committed the felony, punishable by sect. 107 of the Crimes’ Act, Purd. Dig. 345, pl. 152, and that the mortgage was executed and delivered in consideration of an agreement that he should not be prosecuted for the felony. If the testimony tended to prove these facts, it should have been received and submitted to the jury with instructions to find for the defendant if the facts were satisfactorily established.

The proposition covered by the first assignment was to prove in substance that the son had been accused of stealing from the company, and a demand that the father should execute the mortgage to secure the sum stolen, coupled with the threat that if it was not done, Albert would be arrested and sent to the penitentiary ; that the plaintiff in error, having at first declined to accede to the demand, was again urged by Coleman, who exhibited a paper containing a statement of the sums alleged to have been embezzled, and said: “ This is now §1300 that Albert has stolen, and I want to see if you are going to fix it up.” To which the father replied : “ I am unable ; I have no money and cannot raise any.” Whereupon Coleman said: Mortgage your property, and I’ll have it taken by the company, and if you do not we will have Albert arrested for his stealing and put him in the penitentiary.” The offer covered by the second assignment was to prove that Coleman said, on another occasion, “ that this stealing of Albert’s had to be made up to the company, and if ho (defendant below) did not come down immediately and give the mortgage spoken of, the company would at once arrest Albert and put him in the penitentiary.” This is the substance of the offers overruled by the court. While the substantial proposition embodied in them was to prove that defendant’s son was accused of embezzlement, and that criminal prosecution therefor was threatened unless restitution was made or the money alleged to have been embezzled secured to the company, there was no offer to prove that the felony had actually been committed, or that there was an agreement not to prosecute if the security demanded was given. The guilt of the party accused and an agreement not to prosecute are essential ingredients in the compounding of a felony. Though the proof of guilt need not be of that conclusive character that would be necessary to convict, there should be at least such preponderance of evidence as will justify the jury in finding that a felony was committed. If all the allegations of fact embodied in the offers had been proved, they were not sufficient to justify the jury in finding that Albert was guilty of the crime laid to his charge. There was no offer to prove an admission of guilt on his part, or any fact from which the jury could reasonably infer guilt. At best it would be merely a matter of conjecture. If this were permitted, mortgages and other real estate securities would rest on a very frail foundation. Nor was there any offer to prove an agreement not to prosecute. The offers were to prove threats of prosecution if the security was not given, and it is claimed that the jury might have inferred from this that if the mortgage was given the agreement was that no prosecution would ensue. But this would be unwarranted. In National Bank of Oxford v. Kirk, 9 Norris 49, the defendant offered testimony tending to show that he was induced to give the note in consequence of the threatened prosecution of his son for forgery, coupled with the representation of one of the officers of the bank, that if the note was given it would probably be paid by the son, and “ no one would then know anything about ” the forgery. This tended to show' an agreement on the part of the bank not to prosecute, and the question was accordingly submitted to the jury. In the present case the testimony was insufficient to sustain the defence that was relied on, and there was therefore no error in overruling the offers.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Maxwell versus Perkins.
    1. In a certiorari to the judgment of a magistrate in a proceeding by a landlord, under the Act of 1830, to recover possession of premises for nonpayment of rent, it is sufficient if the transcript of the record of the magistrate discloses the facts necessary to give jurisdiction. It is not necessary that all the facts should be set forth in detail.
    2. McKeon v. King, 9 Barr 213, followed.
    February 23d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 3, of jPhiladelphia county: Of January Term 1880, No. 103.
    This was a certiorari to bring up the record from a magistrate in a proceeding by- John Maxwell, under the Act of April 3d 1830, Purd. Dig. 884, pl. 25, against Ellen R. Perkins, to recover possession of premises for non-payment of rent.
    The complaint before the magistrate was as follows :
    “ On the 13th day of August, 1879, personally appeared John Maxwell before the subscriber, William H. List, Esq., magistate of Oourt No. 5, in and for the said city, and being duly sworn according to law, saith: That he demised the premises situated No. 226 North Ninth street, in the city of Philadelphia, for the term of one year, to Eilen R. Perkins, at a monthly rent of §45.84. That the said rent, to wit, the sum of §45.84, dne on the first day of July, 1879, is in arrear and unpaid. That there are not sufficient goods and chattels on the premises to pay and satisfy the said rent, except such as are by law exempted from levy and sale, and that the said lessee has (after being notified to quit the said premises within fifteen days from the date of said notice, at which time the amount of rent due was demanded), refused to render and deliver up possession of said premises.”
    Upon which complaint a summons issued to the defendant, reciting the complaint and summoning her to appear at a certain time to answer. The summons was duly served.
    The following is the magistrate’s transcript as certified:
    “August 13th 1879, the plaintiff appears and complains on oath that he demised to the defendant a certain tenement, situated No. 226 North Ninth street, in the city of Philadelphia, for the term of one year, at an annual rent of §540, from the first day of May 1879 ; that the rent thereof is in arrear and unpaid; that there is not sufficient goods and chattels on the said premises to pay and satisfy the said rent, except such as are by law ex-empt from levy and sale; that the said defendant has, after being notified to quit said premises within fifteen days, according to law, from the date of such notice, at which time the amount of rent was demanded, refused to render and deliver up possession of the said prem ses.

      “August 19th 1879, at 11 a. m., plaintiff appears, and defendant also.
    “August 27th 1879, at 12 M. parties present. John Maxwell, plaintiff, sworn, claims $45.84 rent due of above premises to July 1st 1879. Copy of notice, produced and in evidence, served on defendant July 22d, to vacate in fifteen days. William G. Carroll sworn for plaintiff, Harriet E. Maxwell sworn for plaintiff; Ellen R. Perkins, defendant, sworn ; Lizzie Henry sworn for defendant; there is not sufficient goods on the. premises to satisfy the rent in arrear. .
    “ Held under advisement to August 80th 1879.
    “ And now August 80th 1879, whereupon, on hearing, our said magistrate finds that the said complaint is in all particulars just and true, and enters judgment against the said lessee, that the said premises shall be delivered up to the lessor; and he also ascertains that the amount of rent due. by the defendant to the plaintiff is $45.84.”
    The following were the eighth and ninth exceptions to the record returned on the certiorari:
    8. It does not appear from the evidence adduced before the magistrate or the complaint, that said rent is due until the end of the term, for which said premises were leased, to wit, one year, from the first day of May 1879.
    9. The complaint shows that no rent is due until May 1st 1880.
    The court, no opinion being filed, sustained the exceptions and reversed the judgment. This action of the court was assigned for error by Maxwell, who took this writ.

      Harold Mann, Henry C. Hawkins and E. R. Worrell, for plaintiff in error.
    Although the record shows that the defendant’s exceptions were sustained generally, the decree of the court below was based upon the eighth and ninth exceptions, which state, that it does not appear from the complaint, that there was any rent due until the end of the term for which the premises were leased. The complaint, itself, which is a part of the record returned on certiorari, shows that the demise of the premises was for one year, at a monthly rent of $45.84, and that the said rent was due on the first day of July 1879. The magistrate, however, in reciting the complaint, states that it was an annual rent of $540 from the first day of May 1879, which is the aggregate amount of $45.84 per month. The court below, upon the argument, stated that it was an inference of law from this, that no rent was due until the end of the term. How can this be so when it appears from the magistrate’s transcript that the rent was in arrear and unpaid, from which it naturally follows from the very meaning of the terms that it was due.

      J. Alexander Simpson, for defendant in error.
    A magistrate’s court is not a court of record; tho complaint must be recited by him in his docket, as must all pleas and all matters reviewable by the court below on certiorari. Nobody has access to his papers, and the exact situation of a case cannot be known except by obtaining a transcript of his record, his docket, as prescribed by sects. 4 and 23 of the Act of March 20th 1810, 5 Sm. Laws 164. As a necessary practice, therefore, and as a universal custom in the city of Philadelphia, the party against whom the magistrate decides obtains a transcript of the magistrate’s record, and either appeals or removes the record by certiorari, accordingly as the transcript shows a good cause of action, or otherwise. This was done in this cause, and as the transcript discovers no good cause of action, showing no rent due until May 1st 1880, a certiorari was taken.
   Mr. Justice Mercur

delivered the opinion of tho court, May 3d 1880.

This case came into the Common Pleas by certiorari to the judgment of a magistrate. It was a proceeding by a landlord under the Act of 1830 to recover possession of certain premises by reason of the non-payment of rent by his lessee. The magistrate entered judgment against the lessee for the premises. On certiorari the judgment of the magistrate was reversed by the Common Pleas. To that reversal this writ of error was taken.

Numerous exceptions were filed in the Common Pleas. The court filed no opinion. The record fails to show on what ground the judgment of the magistrate was reversed. We are therefore obliged to search the whole record to discover the ground of reversal.

The complaint of the lessor was made under oath on the 13th August 1(779. It averred that he had demised the premises described, for the term of one year to the lessee at a monthly rent of forty-five dollars and eighty-four cents. That the said rent, to wit, §45.84 due on 1st July 1879, was in arrear and unpaid. That there were not sufficient goods and chattels on the premises to pay and satisfy the said rent except such as by law are exempted from levy and sale, and that the said lessee, after having been notified to quit the premises within fifteen days from the date of said notice, at which time the amount of rent due was demanded, had refused to render and deliver up possession of said premises.

The transcript shows due service on the lessee and the appearance of the parties. On the hearing, they both testified and gave other evidence. The §45.84 rent claimed was shown to have been due on the 1st of July 1879, and that the notice referred to in the complaint was served on the lessee on the 22d July 1879. It was also proved by a witness of the lessee that there were not sufficient goods on the premises to satisfy the rent in arrear. The transcript also shows that the plaintiff complained under oath that he demised to the defendant the premises in question for the term of one year, and the day when the term commenced. In addition to these specific facts, the transcript proceeds: “ Whereupon, on hearing, our said magistrate finds that, the said complaint is in all respects just and true, and enters judgment against the said lessee that the said premises shall be delivered up to the lessor; and he also ascertains that the amount of rent due by the defendant to the. plaintiff is forty-five dollars and eighty-four cents.” It is true, in a recital of the complaint, the magistrate declares the rent to be at an annual sum, but the finding shows the sum stated in the complaint to be actually due.

'• In case of a certiorari to the judgment of a magistrate, the statute requires him to certify the whole proceeding had before him, by sending the original precepts as well as a copy of the judgment and executions, if any. The complaint is therefore made a part of the record. It is true, all the facts are not set forth with commendable regularity or order; yet all the facts necessary to give jurisdiction appear in some part of the record. The general finding is in the very words of the statute and a full compliance with the law. It is not necessary that all the facts should be set forth in detail in the finding: McKeon v. King, 9 Barr 213. As there was no allegation of fraud, and the record shows jurisdiction, no parol evidence could have been considered by the court below. In fact, none such appears to have been before it. The case was there as it must be here, decided on the record: Bedford v. Kelly, 11 P. F. Smith 491; Wistar v. Ollis et al., 27 Id. 291. An examination of the whole record discloses no fatal error in the judgment of the magistrate, therefore,

Judgment of the court below reversed, and the judgment of the magistrate is affirmed at the costs of the defendant-


author: Mr. Justice Gordon

text:
    Economy Building Association to the use of Smyth versus Hungerbuehler
    1. Where the stock of a building association is assigned as collateral security for a mortgage given to the association, payments on the stock are not ipso facto payments on the mortgage.
    2. Testimony of the officers of such an association, that they considered the payments as, in law, payments on the mortgage, is not evidence of an appropriation of them to that object.
    February 24th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1879, No. 173.

      Scire facias by the Economy Building Association, to the use of Denis Smyth, against Frederick Hungerbuehler, on a mortgage executed by defendant to plaintiff, to secure the payment o'f $2200 one year from date with interest payable monthly, with a proviso that if there should he any default in the payment of interest for the space of six months that then the whole debt should become payable immediately. The writ was duly served on Hungerbuehler, and judgment was taken against him, for want of an appearance, for $2346.37 upon which a levari facias issued. On the petition of Mathias Ruoss the court set aside the levari facias, opened the judgment and let him into a defence. Ruoss then pleaded that the plaintiff ought not to maintain his action, because the $2200 mentioned in the said mortgage were fully paid before the commencement of this suit; that the mortgage was given by defendant to the said plaintiff, as one of the securities on a loan made by the plaintiff to the said Hungerbuehler to secure the repayment of the said loan by the payment of dues, interest and premiums on said loan, on eleven shares of stock, in accordance with the constitution, by-laws, rules and regulations of said association.
    At the trial it appeared that on June 2d 1873, defendant was the owner of eleven shares of stock in the plaintiff association, upon which he had paid in monthly dues of $1 per share $803. On the same day he borrowed from the plaintiff, on bond and mortgage $2200, payable in one year with interest at the rate of six per cent, per annum, and in case one month’s interest should fall in arrear for six months, the whole principal debt should become due, and assigned his stock to the association as collateral security for the loan. He continued to pay his interest dues on his mortgage, with his monthly premium of $7.15 for his loan, as well also as his monthly dues on his stock till January 10th 1876.
    On the 24th of December 1875, Denis Smyth, the use plaintiff, entered a judgment in the Court of Common Pleas, No. 2, of December Term, 1875, against Hungerbuehler for the sum of §1400, and issued an attachment execution thereon against Hungerbuehler as defendant and the building association as garnishee, to which the sheriff made return :
    “ Attached as within commanded by making known to The Economy Building Association, No. 2, by giving to Jacob Muench, secretary of said association, a true and attested copy of the within writ and making known to him the contents thereof, December 24th 1875, at 4 o’clock 15 minutes P. M., and by giving a like copy to Frederick Hungerbuehler, defendant, and making known to him the contents thereof, December 30th 1875.”
    On September 20th 1876, on a rule for judgment on answers to interrogatories filed, the court entered judgment as follows: “Rule absolute, and judgment that the garnishees have in their hands eleven shares of the capital stock of the said garnishees, the Economy Building Association, the property of the defendant, and that the plaintiff have execution against the said shares, subject to all the lifens and rights of the said garnishees.”
    On September 24th 1876, a fi. fa. was issued to levy and sell the stock, and on October 7th 1876, Denis Smyth became the purchaser thereof at sheriff’s sale. On the 31st of October 1876, the association having reached the limit of its chartered existence by being able to divide among the stockholders $200 to each share of stock, the board of directors passed a resolution directing the president and secretary of the association to assign unto Denis Smyth the mortgage bond and warrant of attorney given to the association by Hungerbuehler in full payment of the eleven shares of stock purchased by Smyth at the sheriff’s sale, upon the payment by Smyth of the sum of $36.57, arrearages of monthly dues on said stock, and the further sum of $36.57, arrearages of interest due the association on said mortgage. Pursuant to this resolution, Smyth paid the several sums of money in the said resolution specified to the association, making thereby each share of stock worth $200, and on the 8th of November 1876, took an assignment of the bond and mortgage from the association in payment of the said stock, and surrendered the same to the association, which afterwards cancelled it. The association ran out in September 1876, and paid to the stockholders on each share of stock held by them $200.
    It was admitted Hungerbuehler was at no time six months in arrear in the payment of' his dues and interest on his mortgage.
    In the interval between the passage of the resolution and the assignment of the mortgage, suit was brought on the mortgage in the name of the Building Association, to the use of Smyth against Hungerbuehler; and, judgment was taken against him for default of appearance, and damages were assessed’ at $2346.37, and on the same day a levari facias issued to sell the real estate covered by the mortgage. Pending the proceedings on the levari facias, Mathias Ruoss presented his petition to the court, representing that he was a subsequent mortgagee of Hungerbuehler; that the plaintiffs’ mortgage was paid ; and that, if the plaintiffs should sell the mortgaged property on their writ of levari facias, the lien of the defendants’ mortgage would be discharged. On this petition and a rule to show cause, the court opened the judgment, and let Ruoss into, a defence, and set aside the levari facias.
    Afterwards Ruoss sued out a scire facias on his mortgage, obtained judgment against Hungerbuehler for $1159, and issued a levari facias, and purchased the property at the sheriff’s sale for $1300. On the trial of the cause, the plaintiff claimed the full amount of the mortgage debt, with interest due thereon; whilst Mathias Ruoss claimed, that the payments of dues on the stock, were payments on the mortgage; and that the plaintiff was not entitled, to recover for the use of Smyth, any amount beyond what Smyth paid in cash to the association, at the time of the transfer of the mortgage to Smyth, with interest.
    The secretary of the association testified : “ There is no entry anywhere on our books of the association applying the payment of dues on stock to payments on the mortgage. Our books do not show any such application of dues on stock. My notion is, that, in law, payment of dues on stock is payment on the mortgage. The money of Hungerbuehler wo took to pay our debts and expenses, and we credited it in his receipt book.”
    The court in the charge, inter alia, said: “ The question is, whether there was any appropriation of the payments on stock to payments on the mortgage. Mr. Hungerbuehler had the first right to appropriate; if he did not, then the association had tho right. * * * I submit the question to the jury whether, from the testimony of Muench, the secretary, there has been an appropriation of stock payments to this mortgage. If the'jury find there has been an appropriation of stock payments to the mortgage, Mr. Smyth will be entitled to recover back the money paid the association, on the assignment of the mortgage to him, with interest.”
    The verdict was for the use plaintiff for $8Í.7o, who took this writ and alleged, inter alia, that the court erred in the above portion of the charge.

      S. N. Rich, for plaintiff in error.
    Tho court erred in submitting to tho jury the question of an appropriation of stock payments to payments on the mortgage, there being no evidence of any specific act of appropriation by either Hungerbuehler or tho association, prior to the time of the attachment laid, or even after attachment laid; nor was there any evidence in the cause upon which, at any time, the association could maintain a legal right to appropriate.
    The court gave to the declaration of the secretary such controlling effect, as to override all the other testimony in tho cause, and to exclude the same from tho consideration of the jury; and, in doing so, he ignored the law of attachment as well as the doctrine of subrogation, and misapplied the equitable doctrine of appropriation of payments. This caso cannot bo distinguished from Spring Garden Association v. Tradesmen’s Loan Association, 10 Wright 493 ; North American Building Association v. Sutton, 11 Casey 463, and Kreamer v. Springville Saving Fund and Loan Association, 36 Leg. Int. 28, in which, it is ruled, that payment of dues on stock are not ipso facto payments on the mortgage.
    The court also ignored tho question of the time when tho pretended application was made. No appropriation could have been made either by or for Hungerbuehler, after the attachment of the stock.

      Thomas Wagner, Jr., for the defendant in error.
    The question submitted to the jury in the court below was, what was due on the mortgage, which involved the question whether there had been an appropriation of stock payments to the mortgage, which the jury found, and rendered a verdict in favor of the plaintiff below for the balance due upon said mortgage.
    The association had a right to appropriate, where the stock had been assigned as collateral security : Spring Garden Association v. Tradesmens’ Loan Association, 10 Wright 493. Nothing passed to Smyth by the assignment. The association having dissolved before the assignment of the mortgage to Smyth, the payments made by Hungerbuehler, according to the nature of building associations, worked an appropriation, even if there had been none before.
    It is doubtful whether, under any circumstances, a building association has the power to assign their mortgages to strangers; and much more so, after the association has closed up and virtually ceased, and the exercise of which power the defendant contends, is ultra vires.
   Mr. Justice Gordon

delivered the opinion of the court, May 3d 1880.

Mathias Ruoss who, as terre-tenant, was permitted to defend in this case, was the second mortgagee of Hungerbuehler, the building association having the first mortgage. When Hungerbuehler executed this first mortgage, in amount $2200, he held eleven shares of the company’s stock, which he assigned to the association as collateral for the loan embraced by the mortgage. Upon this stock he had paid, in the way of monthly dues, some $803, and subsequently he seems to have met the instalments and interest as they fell due, except about $73, which Smyth paid after the stock fell into his hands. On the 29th of December 1875, Smyth’s attachment was served on the building association, as garnishee of Hungerbuehler, and, on the answers made by it, he obtained judgment subject to its equities as pledgee. On this judgment a fi. fa. was issued, a levy made on the stock, and on sale by the sheriff, October 7th 1874, it was bought in by Smyth. As, previously to this time, no application had been made of the stock payments to the mortgage, either by Hungerbuehler or the association, it is clear that Smyth took it freed from all claims of Hungerbuehler or his creditors, and subject alone to the equities of the company.

On the 31st of October 1876, the association having reached the limit of its chartered existence, by being able to divide $200 to each share of its stock, its board of directors passed a resolution authorizing an assignment of the mortgage to Smyth, on his payment of the remaining unpaid dues and interest. This he accordingly did, and received the assignment on the 8th day of November 1876. In other words, Smyth, the owner of stock worth §2200, assigned it to the company, by which it had been issued, in consideration of the transfer of the mortgage in suit.

Now the defence made by Ruoss is this, that the payments made on the stock were, in law, payments upon the mortgage, and ought so to have been applied. This view was, in effect, adopted by the couvt below, and so Smyth was permitted to recover only what he himself had paid to the company to close out the arrears on the stock and interest due on the mortgage. But this conclusion was based on a false premise, for it is not so that tho stock payments were ipso facto payments on the mortgage. The converse has been expressly ruled in the cases of the North American Building Association v. Sutton, 11 Casey 463; Spring Garden Assoc. v. Tradesmens’ Loan Assoc., 10 Wright 493 ; and Early and Lane’s Appeal, 8 Norris 411. Either of the original parties might have made such application before the levy of Smyth’s attachment, but this was done by neither of those parties, and so Smyth, by virtue of his attachment, took the place of ELungerbuehler, and as the company might, at ELungerbuehlor’s instance, had he retained the stock, have paid to him the value thereof, and retained the mortgage, so might it have done with Smyth. In such case, however, Ruoss could not be heard to complain, for his position as second mortgagee would not be in the least affected thereby. This stock became collateral security not for his benefit, but for that of the association, heneo its surrender would put him in no worse position than he was when his mortgage was executed. Surely, then, Ruoss could not intervene to prevent the disposition of collaterals in which lie had no interest. In effect this very point is ruled in the case of the Spring Garden Association v. Tradesmens’ Loan Association, above cited. It was there held that a purchaser at a sheriff’s sale of the mortgaged premises could not compel such application, but that where the building association, on notice of the assignee of the mortgagor, agreed to retain the stock and issue a scire facias on the mortgage, it had the right to recover thereon. But if the association plaintiff could have paid the value of the stock to Smyth and retained and collected the mortgage, why could it not retain the stock and assign the mortgage ? It certainly would not put Ruoss’s mortgage in a worse position, because Smyth held the first lien rather than the company. Smyth was undoubtedly, by act of law, owner of this stock, which was worth some §2200, and that amount he had the right to demand of the company or its equivalent. The company, on the other hand, had tho right to retain either the stock or the mortgage: it chose to retain the stock, and by assigning the mortgage to Smyth, as in that case it was bound to do, it thereby clothed him with all the rights it would have had had it paid him the value of the collaterals and kept the mortgage. This, however, was a matter for themselves, a matter with which Ruoss had nothing to do. It is true, had the stock payments been applied to the first mortgage, Ruoss would have been the gainer thereby, but so would he had Hungerbuehler assigned the stock in satisfaction of his mortgage. But as he was powerless to compel the latter, so was he powerless to compel the former. It follows, that under the evidence, as it is now presented to us, there should have been a verdict for the plaintiff for the full amount of the mortgage.

Judgment reversed and a new venire awarded.


author: Mr. Justice Trunkey

text:
    Hibernia Fire Engine Co. versus Commonwealth ex rel. George Harrison.
    H. was an active member of a volunteer fire company in 1864, and until 1867, when he left the state, but not with the purpose of changing his residence. He paid his dues regularly until April 28th 1871. In March 1871, by reason of the creation of a paid fire department, the company ceased to run to fires, and the next month converted its effects into cash, realizing several thousand dollars, and leased their engine-house. In August following they passed an amendment to their by-laws, changing the rate of dues from 12£ cents to $2 per month. H. did not pay these increased dues, and his name was erased from the. books. In a proceeding by mandamus at his relation, Meld, that the amendment to the by-laws increasing the rate was unreasonable, and a member who did not assent thereto was not bound to pay them. Meld, further, that such a member had rights in common with the other members, and upon a dissolution of the company and the distribution of the property among the members, he was entitled to his share as a member.
    2. Whether a by-law is reasonable or not is a question for the court solely. But its unreasonableness should be demonstrably shown. Courts, in construing by-laws, will interpret them reasonably, if possible, not scrutinizing their terms for the purpose of making them void, nor holding them invalid, if every particular reason for them does not appear.
    February 25th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1880, No. 138.
    This was a proceeding by mandamus brought by the Commonwealth at the relation of George Harrison against the Hibernia Fire Engine Company.
    Upon the presentation of the petition of the relator, a writ of alternative mandamus issued, and the defendants filed a return thereto, to which a replication was filed and issue joined. At the trial, it appeared that the engine company was instituted February 20th 1752, and was incorporated by the Court of Common Pleas of Philadelphia, September 20th 1841. The relator joined the company as an active member in July 1864, and remained upon the active roll until May 1867, when, at his request, bis name was placed upon the absent roll, and he went to the state of Missouri. In the autumn of 1866, the company adopted, among others, Section 16, of By-Law 17, providing, “That if any member shall neglect or refuse to pay his indebtedness, exceeding three dollars, after receiving notice in writing from the assistant secretary, the president shall erase his name from the roll unless a satisfactory reason be given to that officer for such neglect.” The relator left the city in the spring of 1867, and made no payment to the company until June 80th 1871, when he forwarded to the secretary the sum of $8.35, the amount-of his indebtedness from April 1866, until April 1871. On December 29th 1870, the councils of the city of Philadelphia passed an ordinance to create a Paid Fire Department, which substituted such fire department for the voluntary organizations theretofore existing, and after March 1871, the Hibernia Fire Engine Company ceased running to fires. At the stated meeting of May 26th 1871, an amendment to the bylaw, fixing the rate of dues was proposed, and at the stated meeting of August 25th 1871, vras adopted by a vote of 84 in favor of it, to 6 against, in accordance with by-law 32, authorizing amendments to be made by a vote of two-thirds of the members present. This amendment fixed the rate of dues at $2 per month, instead of 12J cents, as they had previously been. In the course of the year 1871, the company converted its personal effects into cash, and leased its engine-house to the city for $1000 per annum.
    In the fall of 1871, the assistant secretary sent through the mail to the relator’s address, at St. Joseph, Missouri, a notice of indebtedness amounting to $4.50, to which no answer was received. In January or February 1872, another notification of his indebtedness, in the same amount, was mailed to him, containing the warning that unless it was paid by the next stated meeting his name would be dealt with in accordance with section 16 of by-law 17. To this an answer was received from the relator by the secretary, refusing to pay the amount and asserting that he was being unfairly dealt with. The secretary wrote in reply, assuring him that no wrong was being done, and informing him of the amount of property in the hands of the company and the number of members entitled to participate in its distribution. At the next stated meeting, February 23d 1872, the roll of delinquents was called; the secretary and assistant secretary reported to the meeting that notifications had been sent to the relator, his letter refusing to pay his indebtedness was read, and no one appearing to answer for him, the president erased his name from the roll. Some weeks afterwards, a former assistant secretary of the company received from the relator a post-office money order for $4.50, dated St. Joseph, Missouri, March 20th 1872, which he retained in his possession until the relator’s return to Philadelphia, when ho drew the money from the post-office and handed it to relator. In May 1872, he came back to Philadelphia, and sometime afterwards sent a letter to the company, requesting to be restored to the roll, which was read in open meeting and laid on the table.
    In pursuance of the Act of Assembly of 28th May 1872, the company, on the 27th of February 1874, passed a resolution to dissolve and surrender its charter, and a committee was appointed to carry the resolution into effect. March 27th 1874, ten members declared their intention to accept the provisions of the Act of 1872, and continue the existence of the corporation as a loan association, under section 1, of said act. December 11th 1874, the last meeting of the company was held, and a report of a committee received, stating the assets to be $42,946.15, and the number of members on the roll entitled to share in the distribution to be 54. In the meantime, various membei’s resigned from the company, receiving different sums of money, regulated by the date of their resignations. This suit was brought by the relator September 23d 1873.
    The third and fourth points of the defendant, both of which the court refused, were as follows:—
    3. That if the relator was indebted to the company in a sum exceeding three dollars, on the 23d of February 1872, and was notified in writing of that fact by the secretary, and refused or neglected to pay his indebtedness after such notification, the verdict must be for the defendant.
    4. That the relator, by his absence from this state for five years, lost an essential qualification for active membership of the company, and hence the verdict must be for the defendant.
    In the general charge the court, Pierce, J., said: “If you find there was no necessity for this increase of dues, the amended bylaw authorizing it was unreasonable and void. If it was made for the purpose of turning out members, then it was oppressive and unreasonable,- and they had no power to make it. The validity of the by-law depends upon the intent with which it is adopted. A by-law endeavoring to get rid^of a member is invalid.
    “ But I rest this case upon the fact that there was no legal trial of the relator. He had no day of hearing before the company. He had no intimation of the increase of. dues until the bill for them was sent to him. If he had been given an opportunity to be heard, he might have contended that the by-law was passed in his absence, and he did not know the reason-of it; that he reasonably hesitated about payment, and that he had come and tendered payment, and that the erasure be stricken off. That might have induced the company not to erase him. I therefore instruct you that the company had no cause to strike him from the roll. They could not disfranchise him or destroy his membership, if that is erasure, without an invitation or summons to appear before the company. The verdict should be for him.
    “ The only remaining question is that of damages, which you must determine. Some of the members got $780, and some over §800. There appears to have been about §48,000 to be distributed, and fifty-four members on the list. The relator’s membership entitled him to an equal share in the distribution.”
    The verdict was for plaintiff for §780.10. After judgment, defendant took this writ, and alleged that the court erred in the refusal of defendant’s points and in the portion of the charge noted above.

      Henry S. Hagert, William A. Thorpe and W. H. Staake, for plaintiff in error.
    From the date of its institution, in 1752, until after the date of the erasure of the relator’s name from the roll of members, the Hibernia Fire Engine Company was simply a charity. All the property of every description in its possession belonged to the public, and was held by it merely as trustee for the public. If, in all this period of nearly a century and a quarter, the company’s legal existence had been determined, the property in its hands would have reverted to the state. No member had the slightest legal ownership or interest in it beyond that he may have had, as a citizen, in common with every other citizen in public property: Burgesses and Council of the Borough of Bethlehem v. The Perseverance Fire Co., No. 1, 3 W. N. C. 104; Humane Fire Co.’s Appeal, 7 Norris 389.
    To defeat a by-law, some distinct rule of law or reason ought to be shown to have been violated : Rex v. Ashwell, 12 East 32; Regina v. The Saddler’s Co., 116 E. C. L. R. 1066 ; Commonwealth v. Cain, 5 S. & R. 510; Weckerly v. Geyer, 11 Id. 35; Franklin Association v. Commonwealth, 10 Barr 357; Insurance Co. v. Connor, 5 Harris 142 ; Harmony Fire Co. v. Fire Association, 11 Casey 496 ; Commonwealth v. St. Patrick’s Society, 2 Binn. 441; Railway Co. v. Fitler, 10 P. F. Smith 124; Society v. Burford’s Adm’r, 20 Id. 321. Relator as a member of the company was bound by its by-laws: Toram v. The Association, 4 Barr 519; Commonwealth v. Pike Beneficial Association, 8 W. & S. 247 ; Grant on Corporations, p. 265. Nothing was submitted to the jury save the questions of the reasonableness or necessity of the increase of dues, and the question of damages. As to the latter, the evidence may be searched in vain for anything by which to form a standard of the amount due the relator in case the verdict should be for him.

      I. Tyson Morris and Pierce Archer, Jr., for defendant in error.
    The company was a corporation owning property, whose charter contained no express power of disfranchisement. Whatever incidental power of amotion they may have had, the disfranchisement of relator for non-payment of dues, amounting to §4.50, was ultra vires : Baggs’s Case, 11 Rep. 99 ; Protector and Town of Kingston, Style 480 ; Ang. & Ames, on Corp., sect. 409, 410; Willcock on M. C., *271, 272 ; Evans v. Philadelphia Club, 14 Wright 107; The Butchers’ Beneficial Association, 11 Casey 151.
    Assuming that the corporation had the power of disfranchisement for such an offence, they could not delegate it to a single officer: Rex v. Doncaster, Sayer 38; State v. Chamber of Commerce, 20 Wis. 63 ; Rex v. Head, 4 Burr. 2515; Rex v. Spencer, 3 Id. 1838; Newling v. Francis, 3 T. R., per Lord Kenyon 196; Rex v. Ginever, 6 Id. 594 ; McCullough v. Annapolis Railroad Co., 4 Gill 58; Ex parte Winsor, 3 Story 411. It imposes an unreasonable penalty for a trifling offence: Adley v. Reeves, 2 M. & S. 53; Cantan v. Society, 3 Daley 20.
    A corporation cannot by a by-law, impose a forfeiture of stock for non-payment of calls, without express power in the charter or act of incorporation: In re Long Island Railroad Co., 19 Wend. 37; s. p., In re Nat. Fuel Co., 5 Jurist, N. S. 420; Kirk v. Nowill, 1 Term R. 118; Phillips v. Allen, 5 Wright 481; Pulford v. Fire Department, 31 Mich. 458; Riddle v. Harmony Fire Ins. Co., 8 Phila. 310. The assent of a member will not be presumed: Great Falls Ins. Co. v. Harvey, 45 N. H. 292.
    There was no notice of intention to expel, no summons or opportunity to defend himself against the charge of indebtedness : Baggs’s Case, 11 Co. 93; Com. v. German Society, 3 Harris 251; State v. Adams, 44 Mo. 570, 585: Delacy v. Navigation Co., 1 Hawks 274; Com. v. Beneficial Society, 2 S. & R. 141; People v. Benevolent Society, 24 How. Pr. 221.
    The question of the reasonableness of the amendment, increasing the dues, was not left to the jury, for the reasonableness of a by-law is a question of law for the court: Ang. & Ames on Corp., sect. 357 ; Bock v. Lauman, 12 Harris 435; Allen v. Phillips, 5 Wright 481; Com. v. Worcester, 3 Pick. 462; Adley v. Reeves, 2 M. & S. 60; Bacon’s Abr. tit. By-law; St. Patrick Beneficial Society v. McVey, 11 Norris 510.
   Mr. Justice Trunkey

delivered the opinion of the court, March 8th 1880.

The relator became an active member of the company in July 1864, and remained such until May 1867, when, at his request, his name was placed on the “Absent Roll,” and he went to Missouri. On February 23d 1872, his name was erased for non-payment of dues. To that date he had been regularly charged with dues, all of which were paid up to April 28th 1871, as appears by the books of the company. Afterwards the dues were increased, he was notified, and his neglect to pay was the sole reason for erasing his name. The entire testimony, including the action and correspondence of the company, repels an inference that he left this state with intention to change his residence, or that he had lost his citizenship,' and the fourth point was rightly refused.

By reason of the creation of a paid fire department, the com pany ceased to run to fires in March 1871. In the next month it converted its personal effects into cash, amounting to $44,462, and leased its engine-house for one year from March 15th 1871 for $1000. In August following, an amendment to the by-law fixing the rate of dues was adopted, changing the rate from 12-|- cents to $2 per month. The 6 th article of its constitution declares “ the object of the corporation shall be the promotion of the jpublic good by the extinguishment of fire; and the fund shall be appropriated to no other object than that for which it was provided.” After the company had ceased to extinguish fire, had sold its engine and other personalty, and leased its house, what was the object in increasing the monthly dues of its members to sixteen times their former rate ? It did not propose to prove any object, its minutes show none, and none is suggested. Undoubtedly there was an object, but no court could conceive of one within the powers of the company. Its charter is simple and easily understood, and not a word, can be distorted into an authority for raising or appropriating funds for a purpose other than is nominated in the 6th section. With its business gone, its personal property converted into money, its real estate leased, with scarcely any legitimate expenses, and thousands of dollars in its treasury, the amendment to the by-law increasing duos was most extraordinary and unreasonable. No member, who did not assent, was bound to pay the increased rate. There is no pretence of necessity for it; no purpose is avowed for which the money was designed. No matter how large the majority, the charter was the law for the whole, protecting a single member in his rights, though all others were against hirn.

A by-law requiring every freeman and brother of the company, whether he used the trade or not, to pay 2s. per quarter for use of the company, was held void, because “there is nothing to show that a quarterage to such an extent, or to any extent, is necessary for the company: and, for anything which appears to the contrary, the company have sufficient funds of its own from other sources for all the purposes of the company:" The London Tobacco Pipe Makers’ Co. v. Woodroffe, 7 B. & C. 838.

Whether a by-law is reasonable or not is a question for the court solely : Ang. & Ames on Cor., sect. 357 ; Commonwealth v. Worcester, 3 Pick. 462. But its unreasonableness should be demonstrably shown. Courts, in construing by-laws, will interpret them reasonably, if possible, not scrutinizing their terms for the purpose of making them void, nor holding them invalid if every particular reason for them does not appear: Id. We have looked in vain through so much of the minutes of the company as has been furnished for a reason for the amended by-law increasing the dues. The striking out of sect. 15, law 17, on the 26th of May previous, was not a good reason. That section provided the terms for restoration of the names of erased members ; it was rescinded, and then the heavy tax imposed. The written evidence and admitted facts demonstrate that the by-law was unreasonable, and the learned judge committed no error in directing a verdict for the plaintiff.

It is unnecessary to consider whether a member could be disfranchised under the said by-law, without proceeding as directed by sects. 1 and 2 of law 24.

The plaintiff had rights in common with the other members. If he had no individual interest in the property prior to the Act of 1872, neither had they. If, by virtue of that act, the property has become vested in the company so that it may be distributed among its members, he is entitled to Kis share as a member.

The right to recover damages is statutory: Act of June 14th 1886, Pamph. L. 626; Marion Ben. Soc. v. Drake, 7 Casey 82. There was evidence that the assets amounted to nearly §43,000; and fifty-five claimants. One witness received §836 as his share. The jury had evidence to enable them to determine the damages.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Dierkes versus The City of Philadelphia.
    The provisions of the Act of June 13th 1836, which give to the Court of Quarter Sessions power to make orders requiring persons of sufficient ability to relieve and maintain certain of their poor relatives, do not authorize said court to demand security, much less to commit a defendant for non-compliance with its order.
    February 25th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Certiorari to the Court of Quarter Sessions of Philadelphia county: Of January Term 1879, No. 15.
    This was a proceeding in the court below to compel Frank J. Dierkes to provide for the support of his mother. Caroline A. Cropley, the daughter of Rosanna Dierkes, made application to the solicitor representing the Guardians of the Poor for a citation, stating that she was unable to alone provide for the support of her mother, who was poor, old and unable to work. The citation was issued, based upon the affidavit, served upon Frank J. Dierkes, the appellant, who, on the 8th of September 1877, appeared in the Court of-Quarter Sessions before Briggs, J., when, after the case was heard, an order was made upon the said Dierkes to pay the sum of §3 per week for the support of his mother, Rosanna Dierkes, and to give security in the sum of §300, pay the costs and stand committed until the order should be complied with. Subsequently, a rule was granted to show cause why the amount should not be reduced, and, after a hearing was had, the court reduced it to §1.50 per week. The said Dierkes, however, not complying with the order of the court, the said Caroline A. Cropley again appeared before the solicitor, and made affidavit to the fact of non-compliance, and upon this affidavit the court ordered the issuance of an attachment for his arrest. Dierkes then took this writ of certiorari, alleging that the court erred in their order and in the issuing of the attachment.

      Christian Kneass and Joseph T. Ford, for the plaintiff in error.
    The Act of June 13th 1836, Pamph. L. 551, does not apply to the city of Philadelphia. The jurisdiction of the Quarter Sessions is derived solely from the Act of March 29th 1803, Pamph. L. 507, entitled “An act for the consolidation and amendment of the laws so far as they respect the poor of the City of Philadelphia, the District of Southwark and the Township of Northern Liberties.” And under the latter statute the court below was powerless to make the order made in this proceeding. By the Act of 1803, a certain mode of procedure is prescribed, and the direction of the act should be strictly pursued: Act of March 21st 1806, 4 Sm. Laws 432.

      Charles F. Warwick, Solicitor of the City for the Guardians of the Poor, Charles E. Morgan, Jr., Assistant City Solicitor, and Wm. Nelson West, City Solicitor, for the City.
    The general law relating to the support and employment of the poor, approved June 13th 1836, Pamph. L. 551, applies to the city of Philadelphia. By said act, it is provided:
    Sect. 28. “ The father and grandfather, and the mother and grandmother, and the children and grandchildren of every poor person, not able to work, shall, at their own charge, being of sufficient ability, relieve and maintain such poor person at such rate as the Court of Quarter Sessions of the county where such poor persons resides shall order and direct, on pain of forfeiting a sum not exceeding twenty dollars for every month they shall fail therein, which shall be levied by the process of the said court, and applied to the relief of such poor person.”
    There is no repugnance between said act and the Act of 1803, on the contrary it is in aid thereof. The legislature has treated the Act of 1836 as in force in Philadelphia: Act May 25th 1840, Pamph. L. 513. See Guardians v. Smith, 6 Penna. L. J. 433 ; Worrell’s Appeal, 11 P. F. Smith 105 ; Demott v. Commonwealth, 14 Id. 302. That a court has power to punish for contempt of its orders by imprisonment cannot be seriously questioned. The Act of 1842, abolishing imprisonment for debt, expressly excepts from its operations proceedings for contempt: Chew’s Appeal, 8 Wright 247; Tome’s Appeal, 14 Id. 285. The practice of the court in cases under the poor laws has been for years the same as pursued in this case.
   Mr. Justice Paxson

delivered the opinion of the court, May 3d 1880.

This was a proceeding in the court below to compel the plaintiff in error to provide for the support of his mother. After a hearing the court made an order “that the defendant, Erank J. Dierkes, pay the sum of three dollars per week for the support of his mother Rosanna, and the further sum of-dollars for each of his minor children, from the 8th of September 1877, and give security in the sum of $300 for the faithful performance of this order, pay the costs, and stand committed until the order be complied with.”

This order was assigned for error. The 28th section of the Act of 13th June 1836, Pamph. L. 547, under which it is said the order was made, does not justify it. Said section provides that in such cases the defendant shall comply with the order of the court “ on pain of forfeiting a sum not exceeding twenty dollars for every month they shall fail therein, which shall be levied by the process of the said court, and applied to the relief and maintenance o.f such poor person.” The act does not authorize the court to require security, much less to commit the defendant for a non-compliance with its order. Nor can the power to commit for contempt in not obeying the order be implied in view of the penalty expressly imposed. That penalty is $20 per month which “shall be levied by the process of the said court.” The error was doubtless caused by the carelessness of a clerk in making out the order, as the blank used was intended for desertion cases in which the law is different, and the form in question the proper one.

Judgment reversed.


author: Per Curiam.

text:
    Collins versus City of Philadelphia. Hoff versus City of Philadelphia.
    1. A municipality cannot be made liable in damages for the mistakes which may be committed by its officers in the honest, fair exercise of their duties.
    2. A municipality was authorized and required by an act of the legislature to build a sewer along the bed of a creek of sufficient capacity to carry off its waters. Without any negligence on the part of the city, a sewer was constructed which was not of sufficient size to drain the creek, and during a rain-storm it overflowed. In a suit for damages resulting therefrom., Held, that the city was not liable.
    3. Fair v. The City, 7 Norris 309, followed.
    February 25th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.

      Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1880, Nos. 144 and 145.
    Case hy A. M. Collins & Son & Co., and by Hoff, Fontaine & Abbott, against the city of Philadelphia, to recover damages sustained by the plaintiffs by reason of the flooding of their premises on the evening of the 19th of July 1877, in consequence, as it was alleged, of the sewer constructed by the defendant, on Canal street, being of insufficient size and capacity to receive and carry off ali the water which fell upon and ran off the surface of the earth and the public streets in that locality during a rainstorm which occurred at that time.
    After issue joined the case was submitted by written agreement of the parties to W. Wynne Wister, Jr., Esq., as referee, under the Act of May 14th 1874.
    The facts as found by the referee were as follows: Prior to 1859, that portion of the city of Philadelphia lying north of George street, west of the Delaware river to Broad street, and south of the Germantown turnpike, was drained by Cohocksink creek and its tributaries.
    Cohocksink creek, from Front street westward to Sixth street, was declared a public highway of the width of forty feet by an Act of Assembly, passed April 16th 1829. On the 20th of February 1851, an act was passed, authorizing and requiring the commissioners of the districts of Kensington and the Northern Liberties to contract for the building of a culvert along the bed of Cohocksink creek from Front street westward to Sixth street, of such dimensions as may be deemed most expedient for the purpose of draining the waters of said creek, with authority to construct the culvert along any street or road.
    Afterwards, on the 25th of February 1861, an act was passed, which, after reciting the previous acts, and that by reason of the filth and rubbish which was carried by the rains into the canal constructed along the courses of Cohocksink creek, from Front-street eastward, the same had become nearly filled up, and was a nuisance requiring a speedy remedy, authorized the Select and Common Councils of the city of Philadelphia to cause a resurvey of the districts contiguous to Cohocksink creek, and to continue the culvert intended to drain the creek by the shortest practicable course from Front street to the river Delaware along any street, and to fill up such parts of the canal or creek as are not occupied by the culvert.
    Under authority of these acts, the city of Philadelphia caused a sewer to be built along Canal street, beginning at Thompson street near Fifth, and continuing down said Canal street crossing Girard avenue, Fourth and Third streets, and finally connecting with a sewer on Culvert street. This sewer was egg-shaped in form, with its largest diameter four feet, and 'its smaller two feet eight inches.
    There was no negligence on the part of the defendant in building this sewer, it being admitted by plaintiffs that it was constructed in a workmanlike manner, and of good materials. It proved, however, inadequate to carry off all the surface-water which fell during heavy rains on the section drained by it, and at the same time perform the additional duty which the rapid growth and extension of the city compelled, by reason of its connections with other sewers.
    The natural drainage of this part of the city, by Cohocksink creek and its tributaries, was entirely adequate, but after the construction of the sewer, there were frequent overflows, upon the occasion of sudden rainstorms, such- as occur in summer, and petitions had been presented by the residents to councils to have the trouble remedied.
    The plaintiffs occupied the premises situate at the northeast corner of Third and Canal streets, where they carried on the business of manufacturing card-boards, and used the basement or cellar as storage-rooms.
    On the 19th of July 1877, some time during the evening, a heavy summer shower occurred, which lasted for over two hours, and the water fell so rapidly, and the surface drainage was so great that the sewers and inlets became full and overflowing, and being unable to carry it off with sufficient rapidity, the streets were flooded to a considerable depth, and the surface-water running over the pavements, poured down through the windows into the basement or cellar of plaintiff’s premises, nearly filling it, and damaging or destroying the goods therein.
    Besides the ordinary drainage, the sewer in question was performing additional duty at the time of this rainstorm, in consequence of the contractor, who had charge of repairing a break in the culvert on Germantown road, having turned the water which flowed therein into the culvert on Third street, which connected with the Cohocksink creek sewer at Third and Culvert streets. This was done by the contractor, under a written contract for that work made with the city.
    On the authority of Fair v. The City, 7 Norris 309, the referee decided that the city was not liable to plaintiffs. When his report was filed of record in the Court of Common Pleas exceptions were filed to said report which the court dismissed and confirmed the report.
    Plaintiffs took these writs and alleged, that the referee erred in deciding in favor of defendant, and that the court erred in not entering judgment for the plaintiffs.
    The question was raised in the Common Pleas whether, under the 3d section of the Act of May 14th 1874, the exceptions to the report of a referee could be entertained by said court, or if appeals or writs of error should not be taken from the decision of the referee directly to the Supreme Court. The court refused to hear an argument on the question, but heard the exceptions and proceeded as above set forth. This action of the court in refusing to hear the argument was not assigned for error, nor raised in the Supreme Court.

      Michael Arnold and Richard Vaux, for plaintiffs in error.
    By the Act of February 27th 1797, 3 Sm. & Reed L. 278, Cohocksink Creek was created a public highway forty feet in width. By the Act of February 20th 1851, Parnph. L. 92, the commissioners of the districts of Kensington and Northern Liberties, and of the county of Philadelphia, were required to contract for the building of a culvert along said creek. The Act of February 25th 1861, Pamph. L. 42, authorized councils to continue said culvert over Cohocksink creek. These acts take this case out of the ruling in Fair v. The City, supra. The city was thereby deprived of all judicial duty, and that imposed upon it was purely ministerial. The language of the acts was mandatory ; councils had no discretion ; they were bound to erect a culvert, and such an one as would drain the creek. The acts were notice of what was required, and a municipality which, under the circumstances, employs an unscientific engineer, is liable for the consequences of his ignorance. This case is ruled by Carr v. The Northern Liberties, 11 Casey 324; Rochester White Lead Co. v. City, 3 N. Y. 463.
    While judicial duties are discretionary, and, until a discretionary authority is exercised, no real duty arises, yet the instant that the discretion is exercised, certain ministerial duties arise where such discretion has been exercised in the erection of a public work. The city may or may not build a sower to take the place of a natural stream, but when it does build one, it is bound to build it large enough to do the duty of the stream for which it is substituted, and keep it in repair and free from obstruction: Commissioners v. Wood, 10 Barr 93 ; Mann v. Pittsburgh, 4 Wright 364; Nevins v. City of Peoria, 41 Ill. 502 ; Farrell v. Mayor of London, 12 Up. Can., Q. B. 343; City v. Barker, 65 Ill. 518; Ashley v. Port Huron, 35 Mich. 296; Allentown v. Kramer, 23 P. F. Smith 406; Reeves v. Toronto, 21 Up. Can., Q. B. 160; Childs v. Boston, 4 Allen 51; Dillon on Mun. Corp., sect. 802.

      Chas. R. Morgan, Jr., Assistant City Solicitor and William Nelson West, City Solicitor, for defendant in error.
    The question here sought to be raised, has been repeatedly decided by this court, in a series of cases, commencing with Carr v. The Northern Liberties, 11 Casey 324, and ending with Fair v. The City of Philadelphia, 7 Norris 309 ; and it has uniformly been held, that upon such facts there can he no recovery. Where loss is due to an error in the selection of a plan of sewerage, or in the determination of the size of a culvert, the city is not liable in damages. The utmost that can be required by the citizens of those whom they have selected to act for them in the discharge of duties judicial in their nature, is, that they shall act honestly, and with such ability as they may possess: Mills v. Brooklyn, 32 N. Y. 489; Fair v. City, supra. In this latter case, the property had been perfectly drained both by the natural drainage, and by the sewer originally built by the city. And the loss was due to an ill-judged change in the system of sewerage in his neighborhood, the result of which, was to increase very much the demand upon the culvert in front of the property, and to render it insufficient during heavy showers. Notwithstanding this, it was held that plaintiff could not recover against the city.
    The Acts of Assembly referred to by plaintiffs, left the determination of the size or capacity of the sewer to be constructed along and upon the bed of said creek, entirely to the discretion of the municipal authorities.
   The judgment of the Supreme Court was entered March 15th 1880,

Per Curiam.

The main facts in these two cases are the same. They were argued together and depend upon the same principle. They are ruled, we think, by the decision of this court in Fair v. The City, 7 Norris 309. We can discover -no material difference between that case and those upon which a distinction can be based. ■ Whether the natural drainage be by a creek or by the surface — it was in both cases obstructed by the insufficient provision made by the defendant to supply its place. There was no negligence, but want of judgment, and the municipality cannot be made liable in damages for the mistake which may be committed by its officers in the honest, fair exercise of their duties.

Judgments affirmed.