text:
    Patterson et al. versus Kountz et al.

    1. It is not necessary for a judge to answer every point presented to him separately if they are substantially answered in the charge.
    2. It is not error in a j udge to extract the law contained in points and apply it in. a connected form to the evidence.
    3. The 3d section of Act of April 17th 1856 (Charge of Court) does not require that each point shall be answered separately; if one sufficient answer is given to the whole, the law is complied with.
    4. If an answer be contained in the charge it is sufficient.
    5. The provisions of the Acts of 15th and 17th April 1856, that the points and answers shall be filed immediately by the prothonotary, and that the judge shall file his charge with the prothonotary, &c., are directory, and the neglect does not render a judgment erroneous.
    6. The Acts of April 1856 and February 24th 1806 are in pari materiá.

    7. A judge has a right to request the jury to find particular facts; but the jury may disregard the request, and find a general verdict.
    8. Wheeler v. Winn, 3 P. F. Smith 128, remarked on.
    November 12th 1869.
    Before Thompson, 0. J., Read, Agnew, Shauswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 141, to October and November Term 1869.
    This was a scire facias issued to April Term 1867, by Joshua C. Patterson and another, partners as J. C. Patterson & Co., against William J. Kountz and others, officers and building committee of the Pittsburg Savings Bank, on a mechanics’ lien against a four-storied banking-house, corner of Virgin alley and Liberty street, Pittsburg, for $5,066.74, balance unpaid, for erecting the building on a written contract, dated March 14th 1866, between the plaintiff and defendant, viz.: * * *
    “ That the said party of the first part agree to build a banking-house for the said party of the second part, on the lot selected by the said party of the second part, corner of Liberty street and Virgin alley, according to the plans and specifications made by Messrs. Barr & Moser (architects of the city of Pittsburg) in a substantial and workmanlike manner, and to the entire satisfaction of the said building committee of the second part, and to finish and complete the same on or before the 16th day of July 1866, and in consideration thereof the said building committee, party of the second part, agrees to pay or cause to be paid to the party of the first part, $23,227, in payments as follows, &c. * * * And it is further agreed by the party of the first part, that if the banking-house is not finished and ready for occupancy on the 16th day of July 1866, they agree to pay to the said building committee rent for the said building at the stipulated price of $30 per day for each and every day after the 16th day of July 1866.”
    On the agreement was this endorsement:—
    “ The finish or completion of building to be extended to the 15th day of September 1866, except the banking-room, and that not to exceed the time named within.”
    By the specifications of the architect it appeared that the defendants were to furnish the iron doors, have them put up as the building progressed; and also to furnish other materials mentioned in the specification, &c.
    The defendants filed an affidavit of defence to all of plaintiff’s claim (except $.1100, for which sum they tendered judgment), “ that plaintiffs failed and neglected to perform their written contract, a copy of which is attached to affidavit; that the work was not done within the time specified in the contract, &c., &c.; that defendants were entitled to a set-off of $30 rent per day for each day said banking-room and banking-house remained unfinished, viz.: On the banking-room from the 16th July until 31st October; the banking-house from 15th September to 15th December.” They pleaded set-off, defalcation, payment with leave, to give special matter in evidence, the special matter being the same as set forth in the affidavit of defence.
    The plaintiff showed the contract and their account, by which it appeared there was due to them a balance of $5012.44.
    The defendants gave evidence that they did not get into the banking-room until the 31st of October 1866, that the building was not finished until the latter part of December; that the loss which they sustained by the delay was at least $30 per day.
    The plaintiff in rebuttal gave evidence tending to show'that they had been delayed on account of a public sewer of which the parties were ignorant, crossing a corner of the lot; also by the neglect of the defendants in not furnishing the iron doors and other work which was to be done by them, &c. There was other evidence on both sides relating mainly to the question of delay.
    The plaintiffs submitted eight points, and the defendants submitted three. — The court (Williams J.) did not answer the points categorically, nor reduce any answers to writing.
    The judge, after stating the claim, the grounds of defence, and the allegations of the respective parties, and instructing the jury as to the law, proceeded : * * *
    “ If the jury find that the plaintiffs finished the banking room and completed the entire building as soon as they could, taking into consideration and making allowance for the delay occasioned by the defendants’ failure to do their part of the work, including the changes made in the sewer, then they will find for the plaintiffs the full amount of the balance claimed by them.

      “ But if the jury find that the banking room was not finished, and the entire building completed at the time they ought to have been, then the defendants will be entitled to the proper deduction for such delay on account of the rent stipulated to be paid therefor by the plaintiffs.

      “ But will tbe defendants be entitled to defalk the whole per diem rent stipulated to be paid for the whole delay, viz.: from the time the banking-room ought to have been finished until the time the building was finally completed ? Or should some abatement or apportionment of the rent be made for the whole or a portion of the time ? This is a question which the court will reserve for further consideration in case it shall become necessary by the finding of the jury. [But to enable the court to enter the proper judgment the jury are instructed to find the amount of the rent for the whole period of the delay, that is to say, from the time the banking-room ought to have been finished, until the final completion of the entire building, at $30 per day, and deduct the amount from the plaintiff’s claim.
    “ Then the jury will find the actual damages sustained by the defendants, in consequence of the failure of the plaintiffs to finish and complete the banking-room and the entire building at the proper time; assessing the damages, on the basis of the rent stipulated to be paid, at what they actually were.
    “ And to do this the jury will divide the delay into three periods, and assess the damages for each period.
    “ The first period will embrace the time between which the banking-room should have been completed, and the time when the entire building should have been completed — if it ought to have been completed before the 31st of October, when the defendants took possession of the banking-room.
    “ The second period will embrace the time between which the entire building should have been finished and the time the defendants took possession of the banking-room, viz.: the 31st of October 1866, if the entire building ought to have been finished before that time.
    “ The third period will embrace the time that elapsed from the 31st of October, if the entire building ought to have been completed by that time, until its final completion on the 20th of December, or thereabouts.
    “ Eor the first period the jury will assess the actual damages sustained by the defendants for the loss of the use of the banking-room, if it ought to have been finished before the 31st of October. But the jury cannot find as damages for this period a larger sum than the amount of the stipulated rent of $30 per day for the time, whether the damages exceeded that sum or not.
    “Eor the second period the jury will assess the damages at the rent stipulated to be paid, viz.: $30 per day from the time the entire building should have been completed until the 31st of October 1866; provided the entire building ought to have been completed before that time.
    “ Eor the third period the jury will assess the damages actually sustained by tbe defendants for tbe non-completion of tbe building after the 31st of October, when the defendants took possession of the banking-room. The sum for which the residue of the building would have rented would be reasonable damages for that time.
    “ The jury will deduct the whole amount of the damages thus ascertained from the demand of the plaintiffs, and render their verdict in the alternative for the respective balances they ascertained, subject to the opinion of the court on the reserved question.
    “ The court will mould the verdict of the jury, and enter it in the proper form.]

      “ The points presented by the counsel on both sides are sufficiently answered in the charge, and so far as they are not answered they are refused.”
    The verdict was as follows: “ The jury find for the plaintiffs the sum of $2671.62J, after allowing the defendants’ claim of set-off for the non-completion of the banking-room and of the entire building at the times the same ought to have been done under the contract, making due allowance for the delay occasioned by the default of the defendants; and they further find that the actual damages sustained by defendants for the non-completion of the said banking-room and building, are equivalent to the per die.m rent of $30, stipulated to be paid by the said plaintiffs from the time that said banking-room and building ought to have been finished until the same were finally completed.” Same day the plaintiffs move for a new trial. Reasons filed. Judgment was entered on the verdict July 23d 1868.
    The plaintiffs took out a writ of error and specified, amongst others, the following errors:—
    “ 1. The judge did not reduce the answers to the points to writing, and read them to the jury before they retired from the bar to consider their verdict.
    “ 2. The plaintiffs’ points and answers thereto were not immediately filed by the prothonotary, and become part of the records of the court; and said points and the charge containing answers thereto, in part, were not filed till June 23d 1868, although the case was tried February 8th 1868.
    “ 3. The charge of the court to which exceptions had been taken by plaintiffs’ counsel was not filed in writing by the judge with the prothonotary before the rising of the court or within thirty days thereafter.
    “ 4. The court erred in not charging as requested by plaintiffs in their 2d point, viz.: That if the jury believe that the plaintiffs’ work was materially delayed by the defendants’ fault, in not having matters done and attended to, which it was their duty to do, then defendants are not entitled to recover a set-off of rent of $80 per day; but if plaintiffs prosecuted tbeir work with due and reasonable diligence, then they are entitled to recover their whole claim with interest.
    “ 15. The part of the charge in brackets.
    “ 16. The court erred either in not having the jury find as they directed, or in not moulding their verdict into proper form.
    “ 17. The charge of the court and the verdict of the jury and judgment thereon were contrary to law and to the just merits of the case.”

      R. $. Woods, for plaintiffs in error.

      A. M. Brown, for defendants in error,
    referred to Schmoyer v. Schmoyer, 5 Harris 520; Morgan v. Weir, 1 Casey 119; Allegheny v. Nelson, Id. 332; Thomas v. Mann, 4 Id. 520; Brewster v. Sterrett, 8 Id. 115; Deakers v. Temple, 5 Wright 234; Childs v. Digby, 12 Harris 23; Groft v. Weakland, 10 Casey 304; McCoy v. Hance, 4 Id. 149; Utt v. Long, 6 W. & S. 174; Coates v. Roberts, 4 Rawle 112; Hays v. Paul, 1 P. F. Smith 134.
   The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

In this case there are seventeen assignments of error, but fortunately it will not be necessary to consider them seriatim. In the court below there were eight points in writing presented by the plaintiffs, and three by the defendant. The learned judge, at the close of his charge, answered them by saying : “ The points presented by the counsel on both sides are sufficiently answered in the charge, and so far as they are not answered to, they are refused.” The 1st assignment of error is, that the judge did not reduce the answers to writing, and read them to the jury before they retired from the bar to consider of their verdict. The 2d is, that the points and answers were not immediately filed by the prothonotary, and the 3d, that the charge was not filed in writing by the judge before the rising of the court, or within thirty days thereafter. These alleged errors may all appropriately be considered and disposed of together.

It is certainly well settled, by many decisions of this court, that it is not necessary for a judge to answer every point which may be presented to him separately, but that, if they are substantially answered in the charge the judgment will not be reversed on that account: Geiger v. Welsh, 1 Rawle 349; Stewart v. Shoenfelt, 13 S. & R. 368; Coates v. Roberts, 4 Rawle 100; Lynch v. Welsh, 3 Barr 297; McCoy v. Hance, 4 Casey 149; Groft v. Weakland, 10 Id. 304; Deakers v. Temple, 5 Wright 234. “ It is a mistake to suppose,” said Chief Justice Gibson, in 3 Barr 297, “that every prayer must have a separate answer. The judge’s recognition of a parcel of disjointed propositions would give the jury little more instruction than the scattered leaves of the sibyl gave to those who consulted her; and it certainly is not error in him to extract the law contained in them, and apply it, in a connected form, to the evidence.” It is supposed, however, that the law in this respect has been changed by the 3d section of the Act of April 17th 1856, Pamph. L. 396. It provides “that whenever the parties, or either of them, shall request the court to charge the jury on particular points of law, drawn up in writing and handed to the court before the close of the argument to the jury, the judge who charges the jury shall reduce the answers to the points to writing and read them to the jury before they retire from the bar to consider the verdict.” For myself I consider it very questionable whether this enactment has any application except to the courts of the Sixth Judicial District of the state. The title of the act is an “Act to provide for the election of an additional law judge of the Courts of Common Pleas in the Sixth Judicial District.” Every other provision in the act is evidently confined to the courts of that district. At the close of the 2d section, and immediately preceding the 3d, it is provided that “ questions of law, which may arise before the president judge, or the said additional judge may, in the discretion of the judge, be reserved for the determination of all the judges, either in term time, or at such adjourned sessions as they may appoint and hold for the purpose.” Then follows the clause in. question at the beginning of the 3d section. It does not say “any” court or “a” court indefinitely, but definitely “the” court; grammatically, the court spoken.of before, and about which alone the legislature was making regulations. I do not see how any one can read the whole act together without coming to that conclusion. I am aware that in Wheeler v. Winn, 3 P. F. Smith 128, Mr. Justice Woodward treats it as a general law applicable to the whole Commonwealth, but, most probably, he did not turn to the Pamphlet Laws, and examine it in connection with the whole act of which it forms a part. Mistakes have often arisen from neglecting this precaution, in the construction of Acts of Assembly. I speak for myself only, and by way of protestando, that the question may not be supposed to have been passed upon sub silentio. It is not necessary to decide it in this case. We are all of the opinion that the act, if it be a general one, makes no change in the law in the particular matter with which we are now dealing. It does not say that every point shall be answered separately, but if one sufficient answer is given to the whole, the law is complied with. Nor need the answer be written on a separate piece of paper; if contained in the charge, it is good enough. If the point is not pertinent, or the proper answer would do the party no good, the law still is, that it need not be answered at all. It would be in the power of any counsel to impose an intolerable burthen upon the judge, if the law was not so.

In regard to the subsequent provisions of the same section, that the points and answers shall be filed immediately by the prothonotary, and that it shall be the duty of the judge who delivers the charge to file the same in writing with the prothonotary before the rising of the court, or within thirty days thereafter; it is enough to say that they are only directory, and the refusal or neglect of the prothonotary or judge to perform the duty enjoined does not render the judgment erroneous and entitle either party to a reversal.

The same remark is applicable to the Act of April 15th 1856, Pamph. L. 337, which provides that “ the president judges of the several Courts of Common Pleas of this Commonwealth, shall, in every case tried before them respectively, upon request of any party or attorney concerned therein, reduce the whole opinion and charge of the court, as delivered to the jury, to writing, at the time of the delivery of the same, and shall forthwith file the same of record.”

By the 25th section of the Act of February 24th 1806, 4 Sm. Laws 276, it was provided, that in all cases in which the judge shall deliver the opinion of the court, if either party, by himself, or counsel, require it, it shall be his duty to reduce the opinion so given, with his reasons therefor, to writing, and file the same of record in the ease. On the construction of this act, which is in pari materia with that before us, it has been often held that it was not error, for which the judgment should be reversed, if the judge refused or neglected to file his opinion as required by the act: Morberger v. Hackenberg, 13 S. & R. 26; Kennedy v. Daily, 6 Watts 274; Koons v. Steele, 7 Harris 203. “In executing this law,” said Chief Justice Tilghman, in 13 S. & R. 28, “ every judge acts on his own responsibility. But what we have to consider is, whether, if the act be disobeyed, it is error for which the judgment should be reversed. And I am clearly of opinion that it is not error; because the act does not say that it shall be so, and it would be most unjust to visit the offence of the judge (supposing that he had been guilty of an offence) on an innocent suitor, who had obtained an honest and legal judgment.”

The learned judge below had a perfect right to request the jury to find particular facts, though they might have disregarded his request and found a general verdict: Chambers v. Davis, 3 Whart. 40. It is often a very convenient practice, and prevents embarrassing questions from arising subsequently, on a motion for a new trial, or on a writ of error, when it cannot otherwise be known on what grounds the verdict was rendered. In this instance, where the jury found a sum for the plaintiff “ after allowing the defendants’ claim of set-off for the non-completion of the banking-room, and of the entire building at the time the same ought to have been done, under the contract, making due allowance for the delay occasioned by the default of the defendants, and further, that the actual damage sustained by defendants for the non-completion of the banking-room and building are equivalent to the per diem rent at $30, stipulated to be paid by the said plaintiffs from the time that said banking-room and building ought to have been finished, until the same were finally completed,” the verdict took the wind out of all the plaintiffs’ points and exceptions. They must have decided that they did not do the work under the contract in a reasonable time, taking into consideration the delays which occurred by the faults of the defendants. They could have found no otherwise if all the plaintiffs’ points had been separately and explicitly affirmed. We find no error, therefore, in this record for which the judgment ought to be reversed.

Judgment affirmed.


source: Caselaw Access Project

author: Sharswood, J. —

license: Public Domain

text:
    Pittock and Mills versus O’Niell.
    1. The quality of an alleged libel as it stands on the record, either simply or as explained by averments and innuendoes, is purely a question of law for the court.
    2. Both in civil and criminal cases, the court may express to the jury their opinion whether the publication is libellous.
    3. In criminal cases, the court is not bound to express their opinion; if they do, it is not binding on the jury, and if the verdict is for the defendant, a new trial cannot be granted against his consent.
    4. The jury has the right to determine the law and the facts in indictments for libel as in other cases.
    5. In civil cases, the court is bound to instruct the jury as to whether the publication is libellous, supposing the innuendoes to be true.
    6. Where words are of a dubious import, the plaintiff may aver their meaning by innuendo, and the truth of the innuendo is for the jury.
    7. A libel is any malicious publication, written, printed or painted, which by words or signs tends to expose a man to ridicule, contempt, hatred or degradation of character.
    8. Where there is a publication of judicial proceedings, mingled with the publisher’s observations, &c., the general principle is, that if the publication, either in itself or in connection with extrinsic facts, be defamatory, malice is an inference of law, which the jury is bound to find by direction of the court.
    9. An act, unlawful in itself and injurious to another, is considered to be done malo animo.

    November 13th 1869.
    Before Thompson, C. J., Reas, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Allegheny county. No. 159, to October and November Term 1869.
    This was an action on the case for libel, to December Term 1867, by Daniel O’Niell against John W. Pittock, James Mills and James B. O’Niell. On the trial there was no evidence against J. B. O’Niell, and the court directed the jury to find a verdict for him. The other defendants were publisher and editor of a newspaper published in Pittsburg, called “ The Sunday Leader.”
    The publication complained of was made in the Sunday Leader, April 21st 1867, and is as follows:—
    “The Latest Divorce Sensation. — An application for divorce by an injured husband. A terrible story of domestic treachery and guilt.
    “ There was a great deal of excitement in certain circles in this city yesterday, growing out of developments made in regard to an appliéation to the Court of Common Pleas for a decree of divorce. It is no pleasant duty to record these frequently occurring instances of domestic infelicity; but the custom has become sanctioned by usage, and we believe in the end its results are beneficial, in so far as it holds up to public scorn and condemnation those for whom the law affords no adequate punishment, and whose crimes carry in their train household ruin and the wreck of domestic happiness. Such a case we have now to deal with, and it is one characterized by the most shameless treachery and hypocrisy. The annexed petition filed in the Court of Common Pleas yesterday, gives the names of the parties to the proceeding now pending, and the alleged cause of the divorce asked for:”
    Then followed the petition, by J. B. O’Niell, for divorce in the usual form, alleging that the plaintiff had committed adultery with petitioner’s wife.
    The publication proceeded:
    “Mr. Daniel O’Niell referred to in this petition, is a member of the Common Council from the Second Ward, and has considerable local reputation as a journalist. He is a first cousin and brother-in-law of the applicant for divorce, having married his sister some twelve years ago in Ireland. This lady died in June last, and her husband was again married last Thursday to a young lady of Allegheny, and is now absent from the city on a wedding tour. We have further details of this scandalous affair, but withhold them until the party upon whom the great weight of the public odium must fall, returns to the city, and has an opportunity of being heard in his own defence.”
    The declaration set out the publication with appropriate innuendoes as to the persons mentioned in it.
    The plea was not guilty.
    There did not appear, on the trial before Sterrett, P. J., to be any dispute as to the publication of the alleged libel.
    The defendants submitted points, two of which were disaffirmed by the court.
    The court, after referring to the facts and defining a libel and explaining the law in regard to it, proceeded:—
    “ The writer of the article complained of appears to have taken for his text the petition of James B. O’Niell for divorce, filed in this court shortly before the date of the paper given in evidence. [Taking the whole article together, the petition for divorce and the comments upon it, there can be no doubt that it is libellous and grossly so. It is of a character tending necessarily to injure the reputation of the plaintiff and expose him to public hatred and contempt.]
    “ In a criminal prosecution for libel, the defendant cannot— except in particular cases — justify and prove the truth of the libellous expressions for the reason that the injury to the public morals and the tendency to provoke a breach of the public peace is about as great when the libellous matter is true as when it is false. The object of a criminal prosecution is, as already stated, to redress the public wrong, but in a civil action for damages the defendant may, if he is able to do so, put in a plea of justification and prove the truth of the allegation contained in the alleged libel.
    “In this case the defendants have not attempted to justify and prove the truth of the alleged libel. Their plea is not guilty, and this virtually concedes the falsity of the libellous matter contained in the article before you. It was therefore unnecessary for the plaintiff to offer any evidence tending to show that they were false.
    “ It is necessary however for the plaintiff to prove to your satisfaction that the libel was published by the defendants, and on this point considerable testimony has been given. [If the evidence satisfies you that it wras published by them, the burthen is then thrown upon them of disproving malice in the publication by showing justification, extenuation or excuse.]” * * *
    The jury found for the plaintiff against Pittock and Mills for $1000. They took a writ of error and assigned for error, the answers to their points and the portions of the charge included in brackets.

      T. M. Marshall, for plaintiffs in error. —
    When the article is not per se libellous the jury is to decide: Graves v. Walter, 19 Conn. 90; Hakewell v. Ingram, 28 Eng. Law & Eq. 413, 2 Green. Ev. § 411. The defendants had a right from good motives, and for the information of the public, to publish the petition for divorce and comment on it, and therefore whether libellous or not should have been submitted to the jury: Parmiter v. Coupland, 6 M. & W. 105; Mix v. Woodward, 12 Conn. 287; Huff v. Bennet, 4 Sandf. 120; Newman v. Atto, Id. 668; Snyder v. Andrews, 6 Barb. 43; People v. Croswell, 3 Johns. Cases 336; Townsend on Law of Libel, § 69 and note 55, §§ 282, 284, 285, 288; Lancey v. Bryant, 30 Maine (17 Shep.) 466; Powis v. Smith, 5 B. & Ald. 850; Abrams v. Smith, 8 Blackf. 95; Townsend on Law of Libel 379, and notes 1145, 1447, 1448; Heard on Libel, §§ 89, 90, 108, 110; Insurance Company v. Walden, 12 Johns. 513; Haight v. Cornell, 15 Conn. 74; Howard v. Thompson, 21 Wend. 319. The publication was a privileged publication, and it was incumbent upon plaintiff to prove malice: Gray v. Pentland, 2 S. & R. 23; s. c., 4 Id. 420; 2 Greenleaf on Evidence, § 418; Thorn v. Blanchard, 5 Johns. 508; Vanderzee v. McGreggor, 12 Wend. 545; White v. Nicholls, 3 How. 266; Gilpin v. Fowler, 26 Eng. Law & Eq. 386.

      J. H. Hampton and' A. M. Brown, for defendant in error.—
    It was for the court to construe the language of the publication and determine whether it was libellous per se: Townsend on Libel, § 286; Green v. Telfair, 20 Barb. 11; Fry v. Bennett, 5 Sandf. 54; Snyder v. Andrews, 6 Barb. 43; Hunt v. Bennett, 19 N. Y. 173; Hakewell v. Ingram, supra; Shattuck v. Allen, 4 Gray 541. The charges in the article were unequivocal; and the plaintiff clearly indicated by his name, business, &c., it was a libel per se: Townsend on Libel, § 176, and notes. It is only where the words are of dubious import that the jury is to construe them: Hays v. Brierly, 4 Watts 392; Van Vechten v. Hopkins, 5 Johns. 211. “Not Guilty” admits the falsehood of the words, and does not raise the question of privileged publication; nor under this plea can there be evidence to disprove malice: Townsend on Libel, § 40; Thomas v. Danaway, 30 Ill. 373; Chapman v. Calder, 2 Harris 365; Minesinger v. Kerr, 9 Barr 312; Kay v. Fredrigal, 3 Id. 221; Petrie v. Rose, 5 W. & S. 364; Barger v. Barger, 6 Harris 489.
    Malice is implied from an untrue publication : Townsend, § 77, 78, and notes 76, 77, 80, § 287, 288; Littlejohn v. Greeley, 13 Abb. Prac. Reps. 55; Howard v. Sexton, 4 Comst. 157-160; 2 Greenleaf on Evidence, § 410-421. They referred also to 2 Wharton’s Am. Crim. Law, 2561-2572, 2577-2581; 2 Archbold’s Crim. Law, 245, 246, and notes; Commonwealth v. Culver, 2 Penna. L. J. 362; Donelly v. Public Ledger, 2 Phil. Reps. 57; Elliott v. Boyles, 7 Casey 65.
   The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

As the rule is well expressed'by an approved elementary writer, — “ the quality of the alleged libel as it stands on the record, either simply or as explained by averments and innuendoes, is purely a question of law for the consideration of the court:” 2 Starkie on Slander and Libel 281. That this was the law in England, both1 in civil and criminal proceedings, up to 1792, was maintained so rigidly that nothing was submitted to the jury in such cases but the fact of publication and the truth of the innuendos: Rex v. Woodfall, 5 Burr. 2661; The King v. The Dean of St. Asaph, 3 T. R. 428, note; The King v. Withers, 3 T. R. 428. In consequence of these decisions the statute of 82 Geo. 3, c. 60, commonly known as Mr. Fox’s Act, was passed. This statute is confined in terms to trials of indictments or informations, when an issue or issues are joined between the king and the defendant or defendants on the plea of not guilty pleaded, in which case it declared and enacted that the jury may give a general verdict of guilty or not guilty upon the whole matter put in issue, and should not be required or directed to find the defendant guilty merely on proof of the publication, and of the sense ascribed to the same in the indictment or information. By the second section it was provided “that on every such trial the court or judge, before whom such indictment or information shall be tried, shall, according to their or his discretion, give their or his opinion and direction to the jury on the matter in issue between the king and the defendant or defendants, in like manner as' in other criminal cases.” It has never been pretended that this statute had any application to civil actions: Levi v. Milne, 4 Bingh. 195; and its obvious intention was merely to restore to juries their common-law right to give a general verdict in cases of libel, just as in other criminal cases, of which they had been unconstitutionally deprived. Hence the law was carefully made declaratory. The seventh section of the ninth article of the Constitution of Pennsylvania has expressed the same constitutional doctrine and incorporated it with the Declaration of Rights. “In all indictments for libels the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.” There can be no doubt that both in criminal and civil cases the court may express to the jury their opinion as to whether the publication is libellous. The difference is, that in criminal cases they are not bound to do so, and if they do, their opinion is not binding on the jury, who may give a general verdict in opposition to it, and if that verdict is for the defendant, a new trial cannot be granted against his consent. As our declaration of rights succinctly expresses it, the jury have the right to determine the law and the facts in indictments for libel as in other cases. But in civil cases the court is bound to instruct the jury as to whether the publication is libellous, supposing the innuendoes to be true, and if that instruction is disregarded, the verdict will be set aside as contrary to law.

In England the courts have recently disregarded, to some extent, this plain distinction between criminal and civil proceedings. It appears to be put upon the ground that Mr. Fox’s Act, though limited in terms to indictments and informations, was declaratory of the law in all cases of libel; upon what principle of construction, however, it is not very easy to understand. It is there the approved practice for the judge in civil actions, after explaining to the jury the legal definition of a libel, to leave to them the question whether the publication upon which the action is founded falls within that definition: Folkard’s Starkie 202; Baylis v. Lawrence, 11 Ad. & Ell. 920; Parmiter v. Coupland, 6 M. & W. 105; Campbell v. Spottiswoode, 3 B. & S. 781; Cox v. Lee, 4 Exch. Law Rep. 284. These cases were followed in Shattuck v. Allen, 4 Gray 540.

Yet it is clearly held that a verdict for the defendant upon that issue will be set aside and a new trial granted: Hakewell v. Ingram, 28 Eng. Law & Eq. Rep. 413. “ Though in criminal proceedings for libel,” said Jervis, C. J., “there may be no review, in civil matters there are cases in which verdicts for the defendant are set aside upon the ground that the matter was a libel, though the jury found it was not.” This must be conceded to be an anomaly; and it will be best to avoid a practice which leads to such a result. The law, indeed, may be considered as settled in this state by long practice, never questioned, but incidentally confirmed in McCorkle v. Binns, 5 Binn. 340, and Hays v. Brierly, 4 Watts 392. It was held in the case last cited that where words of a dubious import are used the plaintiff has a right to aver their meaning by innuendo, and the truth of such innuendo is for the jury. In New York, since the recent English cases, the question has been ably discussed and fully considered in Snyder «. Andrews, 6 Barb. 43; Green v. Telfair, 20 Barb. 11; Hunt v. Bennett, 19 N. Y. 173, and the law established on its old foundations.

A libel may be defined to be any malicious publication,’written, printed or painted, which, by word or signs, tends to expose a man to ridicule, contempt, hatred or degradation of character: 1 Am. Lead. Cases 109; McCorkle v. Binns, 5 Binn. 340. The publication set forth in the declaration in this case, and given in evidence, was unquestionably a gross libel. Its language is clear and unambiguous, and it may be doubted whether, taken altogether, it needed any innuendo to point it to the plaintiff. Such innuendoes are given, however, and we must consider their truth to have been found by the jury. Its avowed purpose was to hold up the plaintiff below to public scorn and condemnation, as guilty of a crime carrying in its train household ruin and the wreck of domestic happiness. It denounced the act imputed to him as one characterized by the most shameless treachery and hypocrisy. No words could have been used more directly calculated to excite against him public hatred, or to degrade his character. Had the publication been confined to the petition filed in the Court of Common Pleas for a divorce, it might have been considered as privileged, and the plaintiff held bound to prove express malice: Curry v. Walter, 1 Bos. & Pul. 523; McLaughlin v. McMakin, Bright. Rep. 132; Nuff v. Bennett, 4 Sanf. 120. But the comments which accompanied it deprived it of its privilege. It has been held to be libellous to publish a highly colored account of judicial proceedings mixed with the party’s own observations and conclusions : Stiles v. Nokes, 7 East 493; Lewis v. Clement, 3 Barn. & Ald. 702. In such a case the general principle is, that if the publication, considered either by itself or in connection with extrinsic facts, be defamatory, malice is an inference of law, which the jury are bound to find according to the direction of the court: 2 Starkie on Slander and Libel 322. I take it to be a general rule,” said Abbott, C. J., in Duncan v. Thwaites, 3 B. & C. 556, “that an act unlawful in itself and injurious to another is considered, both in law and reason, to be done malo animo ; and this is all that is meant by a charge of malice in a declaration of this sort, which is introduced rather to exclude the supposition that the publication may have been on some innocent occasion, than for any other purpose.”

These considerations dispose of the third and fourth assignments of error, and the first and second not being secundum regulam, must be treated as none.

Judgment affirmed.

Bead, J., dissented.


text:
    McGinniss versus Sawyer. Same versus Millar et al.

    1. The general rule as to the admission of a copy of an instrument is, that it should be proved by some one who has compared it with the original.
    2. The evidence in this case insufficient to admit the copy.
    3. A party relying upon an entry to bar the Statute of Limitations, should show with reasonable certainty the time when the entry took place.
    November 13th 1869.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    These were writs of error to the Court of Common Pleas of Allegheny county: No. 143 and 144, to October and November Term 1869.
    In the court below two writs of ejectment were issued, February 29th 1868. One by Alexander C. McGinniss and William McGinniss against Edward McGinniss for three acres of land in Chartiers township: on the 7th of December, Benair C. Sawyer, vendee of the plaintiffs, was substituted as plaintiff. The other writ was at the suit of Alexander Millar and Charles Millar against the same defendant for about 118 perches of land in the same township. The two lots adjoined each other. Both cases depending on the same evidence, they were tried together.
    In 1838 Jeremiah Dunlevy owned a tract of about 26 acres of land, part of which was called the West Elliott tract, which he sold to Joseph Gunther, Francis Snyder and Nicholas Snyder. They went into possession and made parol partition of the tract; Gunther’s part adjoined David Noble and on the line between them Gunther put up a fence; in 1839 he sold his part to William McGinniss. On the 12th of June 1840, Noble conveyed his tract to Edward McGinniss. On the 5th of April 1860, William McGinniss conveyed 118 perches of his tract to Alexander Millar, William J. Millar and Charles Millar. On the 6th of August 1862, H- Woods, sheriff, conveyed the interest of William McGinniss to H. Baker and Jacob Henrici, who on the 12th of September 1865 conveyed to Alexander C. McGinniss and William McGinniss, Jr.; they, August 1st 1868, conveyed to Benair 0. Sawyer. The land in dispute is on the line between Gunther and Noble, now Millar and Sawyer, on the one side and Edward McGinniss on the other. There had been two ejectments previously for the land, in the first, brought February 5th 1862 by Edward McGinniss, there was a verdict for the defendants, May 17th 1864. The second suit was brought by Edward McGinniss, May 31st 1864; the verdict and judgment were for the plaintiff and possession was delivered to him by the sheriff November 1st 1866. The whole question is dependent upon the proper location of the line between the parties, which commenced at a point, designated as the Lorenz corner.
    The plaintiffs claimed that the line ran from the Lorenz corner, north 43|-° east to the river : the defendant claimed that the line from the Lorenz corner, ran north 50° east to the river. The principal question in the case being as to the title under the Statute of Limitations.
    On the trial of the case, December 7th 1868, before Sterrett, P. J., the plaintiffs gave the following evidence as to a survey or plot, spoken of as the “ Steele survey.”
    Condoreet McGowan testified:—
    “ Am engineer and surveyor; am brother of R. E. McGowan, deceased; was acquainted with Z. W. Remington; have been surveying for about 28 years. I have a plot of lots made for McGinniss and Snyder by Remington in 1849. This is a copy made by myself from the original. I have a copy of the Steele survey among my papers, but I have not had time to find it. This Steele plot or draft was in possession of Remington, and after-wards of my brother. * * * In 1849 I assisted my brother, R. E. McGowan, in running the line; he ran then as I did myself afterwards.”
    Being recalled, he testified:—

      “ I examined for the copy of the Steele survey of the river hill lots ; found it — have it in my hand; it had got mixed up among other papers. This copy is in the handwriting of my brother, R. E. McGowan, now deceased. It was copied off a plan supposed to be the original in the hands of Z. W. Remington. I may have seen the original, but will not be positive. Don’t know that I have any right to answer what became of the original and other papers in Remington’s possession; I believe Remington burned them up — didn’t see him doing so. The date of this copy is as appears on its face — ‘ Copied Dec. 8d 1835,’ is in the handwriting of R. E. McGowan. I first saw this copy in 1841 or 1842, and it has been in my possession ever since, only when it was in court. At the time I first saw it, it was in possession of Remington & McGowan; they were in business together at that time. I have surveyed part of the John Elliott land; have surveyed the river hill lots from Saw-mill Run to Cork’s Run. In my surveys I found marks upon the ground showing that a survey had been made upon the ground about 1810 — trees marked at that time. If they were blocked, they would count back to that date — trees standing still.”
    N. Patterson testified: —
    “ I saw a plan of the river hill lots, purporting to have been made by David Steele; had seen Steele’s signature to different surveys; he was a surveyor in this county in olden times; the plot purported to have been made some time before 1820. I have surveyed some of the river hill lots by what I took to be the old plan; this was about 1833, for John M. Snowdon; he went out west; don’t know that he is dead. I would take this to be a copy of the original, or what I took to be the original, in the handwriting of Steele. In running the river hill lots I find the lines on the ground to correspond with the draft; these marks on the ground, corresponding with the plan, satisfied me that the survey had been made upon the ground.”
    James Trunick testified:—
    “ Knew David Steele. He followed surveying. I owned at one time a part of the West Elliott tract. In 1834 I bought some of the river hill lots. I went to D. Frew, executor of West Elliott, and got Steele’s plot of 1807 of the whole tract of West Elliott land, showing the subdivision of the whole tract — Elliott’s Delight —including the river hill lots, 12 in number; No. 1 beginning at Edward McGinniss’ land and numbered up to No. 12, at the John Elliott line. Major Patterson and I had that plot when he was running the line of my lots. I think Patterson had the plot afterwards, I think in 1837, to survey for John M. Snowden, and then in 1839 Z. W. Remington got it. I think it was 1807 the plot bore date — it might have been 1809; there was a blot on the figure and I took it to be 1807. I never saw this plot, but think it corresponds with the original in sizes and shapes of the lots.”
    E. H. Heastings testified: (witness shown Steele’s plan of the river hill lots):—

      “ I think I have seen this plan before. From my surveys on the ground and the description in the Shamway deed of the lots, I think this plan represents correctly the river hill lots. I saw the original plan; I should take this to be a copy of this original plan. I believe the original plan was burned, from the circumstance : At the time R. E. McGowan had a lawsuit with Remington, Remington came to me after the lawsuit and wanted me to take his place, books, papers, office, &c., and I declined; at the same time or afterwads he intimated that the papers were pnt out of the road, so that there would be no more lawsuits about them. I got the impression — whether from what he said or not, I cannot say — that they were burned in the back-yard. Remington went out west; don’t know where he is — whether he is living or dead; I heard that he was living, and heard also that he was dead. I have seen this plan two or three times; saw it lately, I think, in another case.”
    Plaintiffs offered in evidence the copy of the river hill lots referred to by the last witness and others. Defendants object to the offer, 1st, because the copy is not sufficiently authenticated; 2d, that the loss of the original, of which this purports to be a copy, is not sufficiently proved; 3d, because it is incompetent and irrelevant.
    The evidence was admitted by the court and a bill of exceptions sealed.
    Peter Brady, who had been engineer of the Pittsburg and Steubenville Railroad, which passes through the land of both McGinnisses, testified that in running the line of the railroad and supervising its construction about 1853 and 1854; he found the line fence between the parties where the plaintiffs claim that it should be; that the defendant was on the ground with witness when he staked off about an acre of land on defendant’s side of the fence, for a “borrowing pit,” allowing some distance from fence for slope; defendant was there by appointment of the chief engineer, witness told him they wanted to keep far enough from the fence so as not to let it fall and to take all the pit from his ground; defendant made no objection and said nothing about the line. William McGinniss then claimed up to the fence from the other side; the fence appeared to be of some age; the posts were decayed.
    William McGinniss under objection and exception testified: that when he purchased the land in 1839, Noble claimed up to the fence and the witness down to it; when railroad damages were assessed he and Edward, who had bought of Noble, claimed in the same way, and the damages were so paid to them respectively. At one time Edward moved the fence over on witness and the next morning witness tore it down and put it back into the old post holes; witness did not know how long before the first suit against him it was that the fence was torn down; witness always claimed to the fence; there was'no dispute about the fence till since the sale to Millar.
    Owen McGowan testified that in 1856 or 1857 under the direc-. tion of Edward McGinniss he moved the fence 12 or 14 inches over on Williams side.
    There was much other evidence given by the plaintiffs tending to show an adverse holding of the land in dispute by themselves and their predecessors for such a length of time as to give them title by the Statute of Limitations.
    The defendants gave evidence by a number of witnesses that about the line of these tracts there was a piece of sunken ground and that the line fence was over one end of this sunken ground ; this would bring the line to the place claimed by the defendant. There was also much other evidence by the defendant tending to show that the line was where he claimed it to be, and to establish other marks than the sunken ground. There was also a large amout of documentary evidence and evidence bearing upon questions other than the Statute of Limitations, given by both parties.
    In the course of the trial witnesses were offered by the plaintiffs, objected to an account of interest, and admitted under exception.
    The court charged:— * * *
    “ A great deal of testimony has been given in relation to lines of different surveys, and a number of deeds have been given in evidence by both parties, but in our judgment this amounts to nothing, so far as showing a paper title in either party is concerned. In short, neither party has shown a paper title to the land in controversy, and it is unnecessary to embarrass your inquiry by any explanation on this point. Neither of the plaintiffs is entitled to your verdict upon the strength of the paper title given in evidence. But we do not mean to withdraw from your consideration the surveys, plots and other papers given in evidence. So far as these, taken in connection with the other testimony in the cause, may assist you in determining the point up to which the respective parties held and occupied, you can avail yourselves of them.
    “ The plaintiffs can claim your verdict only on two grounds, either of which, if sustained by the testimony, will entitle them to recover.
    “ 1st. That they, and those under whom they claim, have had exclusive, peaceable, continuous, notorious and adverse possession of the land in controversy for a period of more than twenty-one years prior to the 31st day of May 1864, the time the second suit was brought in the District Court; or.

      “ 2d. That the line to which the plaintiffs claim, and on which they allege the division fence was erected and maintained — running from the Lorenz corner north 41|° east to the river — was recognised as a division line by them and those under whom they claim, as well as by the defendant and those under whom he claims, for a like period of more than twenty-one years prior to the institution of the second suit. * * *
    “ Keeping these propositions before you, then, apply the testimony to them and ascertain whether either of them is sustained by the evidence.
    “ The plaintiffs claim that immediately after Gunther and the Snyders purchased in 1838, they employed a surveyor and divided their land into three equal portions, so that each would have an equal front on the river; that Gunther went into possession of his portion — being the lower part — built a fence on the line to which they claim, cultivated a portion of the land up to this fence in the spring and summer of 1839, and in 1840 sold to William McGinniss, who went into possession of the same immediately, built a house, kept up the fence on the same line, and continued to occupy and use the land up to the division fence, as he claimed it, for more than twenty-one years; that during this period the land was used and occupied up to the line claimed by plaintiff as lands are usually occupied and used by owners ; that he cultivated portions of it, cut and sold timber off the wood land, pastured the upper and lower portions of it, used and rented the river landing below the public road ; that the Millars, who purchased a portion of the river front from him in 1860, used and occupied the same until they were ejected after the recovery in the second suit; that the vendees of William McGinniss at sheriff’s sale continued in possession in like manner as he had done. The plaintiffs have offered testimony tending to show all this, and unless it has been successfully met by the testimony of the defendant, the plaintiffs have made out a complete title under the Statute of Limitations, if their testimony is believed by you.
    “ On the other hand, the defendant contends that the division fence and line between the two tracts were not located where the plaintiff’s witnesses have placed it, but on the line to which he claims — the line running north 50° east, through the lower end of the sunken ground, on striking the river about 15J rods above the point to which the plaintiff claims, and the Lorenz line about 9 26-100 perches east of the plaintiff’s starting point; that the plaintiffs and those under whom they claim, did not occupy and use the land in controversy, as claimed by them; and they have offered testimony tending to prove this state of facts. Whether they have done so or not is for you to say, from all the evidence before you. * * * The location of the division fence is the great question in these causes, and it must be admitted that there is a great conflict of testimony in regard to it. It is your special province to decide it, and say by your verdict what the fact is.

      “ Under the evidence it would appear to he highly improbable, if not -impossible, for two fences to have been located on these respective lines at the same time. No witness in the cause even intimates that there were ever two fences at the point in question running from the public road up the hill to the Lorenz line. [The plaintiff’s counsel contend that the testimony of Peter Brady, as to the connected map made by him at the time the railroad was being constructed, showing the lines of the different landowners through which the road passed, verified by his recent measurements upon the ground, and corroborated by other testimony in the. cause, establishes conclusively that the division fence was on the line claimed by them at that time, viz.: in 1854 or 1855, and that there is no evidence to show that it had ever been removed from where the defendant alleges it was located to that point. On the other hand, the defendant’s counsel contend that their testimony fixes the location of the division fence at the point claimed by him, through the end of the sunken ground.]
    “ [The second proposition on which we have said the plaintiffs may recover, if it is sustained by the evidence, viz: a fence on the location claimed by them, recognised by the parties on each side as a division fence for a period of over twenty-one years, &c., depends mainly on the same testimony. It will avail the plaintiffs nothing to show that there was a division fence which the parties on each side recognised as such, unless they show that it was located on the line to which they claim. * * *
    “ If you find that the division fence was located and maintained on the line claimed by the plaintiffs, there is no evidence of any entry by the defendant that would interrupt the running of the Statute of Limitations in favor of the plaintiff prior to the institution of the second suit. There is some evidence that at one time the defendant moved the fence over some twelve or fourteen inches on William McGinniss, but this would not affect the plaintiff’s right to recover, so far as the Statute of Limitations is concerned.]”
    The verdicts were for the plaintiffs.
    The defendant removed the cases to the Supreme Court and assigned for error: the admission of the copy of the Steele plot; the portions of the charge in brackets and the admission of the witnesses objected to on the ground of interest.

      M. W. Aeheson and J. S. Large, for the plaintiff in error. —
    As to the admission of the copy of the Steele plot, proof of loss and search for original should have been made: Parke v. Bird, 3 Barr 360; the existence of the original, its destruction or unavailing search for it: Porter v. Wilson, 1 Harris 641; Murray v. Buchanan, 7 Blackf. 549. The copy should have been testified to by one who had compared it with the original: Kerns v. Swope, 2 Watts 75. There should have been clear proof of the contents of the original: McBurney v. Cutter, 18 Barb. 209; Catlin v. Underhill, 4 McLean 199; Smith v. Carrington, 4 Cranch 62. As to the second error. In commenting upon evidence, everything on the point should be brought to the notice of the jury: Nieman v. Ward, 1 W. & S. 82. The court should not have led the jury to think there was but one point, when there are two: Relf v. Rapp, 3 W. & S. 21; Parker v. Donaldson, 6 Id. 32; Brown v. Clark, 2 Harris 469; Gregg Township v. Jamison, 5 P. F. Smith 468.

      R. Woods and W. P. Fetterman, for defendants in error,
    as to the admission of the copy of the plot cited : Ralph v. Brown, 3 W. & S. 395; Porter v. Wilson, 1 Harris 641; Flinn v. McGonigle, 9 W. & S. 75; Bouldin v. Massie, 7 Wheaton 122; Cotton v. Huidekoper 2 Penna. R. 152; Devling v. Williamson, 9 Watts 316. As to the 3d specification: there was no evidence of entry within 21 years; it would have been error to submit the question to the jury: Stafford v. Henry, 1 P. F. Smith 514; Urket v. Coryell, 5 W. & S. 60. The defendant could not have been injured if it was error, the court therefore will not reverse : Ormsby v. Ihmsen, 10 Casey 462; Newman v. Edwards, Id. 32; Bain v. Doran, 4 P. F. Smith 124.
   The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

The first assignment of error is, that the court below erred in receiving in evidence, the copy of a survey alleged to have been made by David Steele. We may assume that such a survey had been made as early as 1807 or 1809 — * that the original of that survey was traced to the possession of Remington, who had left the state and not been heard from for several years, so that sufficient ground was laid for the introduction of secondary evidence: Ralph v. Brown, 3 W. & S. 395; Flinn v. McGonigle, 9 W. & S. 75. Its absence might then be supplied either by parol evidence of its contents or by a copy. No offer or attempt was made to give parol evidence of its contents. No witness, who had seen the original, was asked to testify from recollection what the course of the line in controversy was as marked upon it. The person, by whom the copy offered is said to have been made, was deceased. No one testified that he had ever compared the copy with the original. McGowin, who said that the copy was in the handwriting of his deceased, brother, and that it was taken from a draft supposed to be the original in the hands of Remington, was unable to say that he had ever seen that supposed original. The testimony of Major Patterson was: “ I would take this to be a .copy of the original or what I thought to be the original in the handwriting of Steele;” and of Neastings: I saw the original plan ; I would take this to be a copy of the original plan.” To admit in evidence a copy upon testimony of this vague and loose character would be fraught with great danger to the rights of parties. The draft produced might profess to be and have all the appearance of a true copy, and yet as to the very matter upon which the whole controversy hinged, the course and distance of a single line, it may have been false or incorrect. The general rule of the law upon this subject requires that a copy in order to be admitted as secondary evidence, should be proved by some one who has compared it with the original: 1 Starkie on Ev. 270, 9th Am. ed.; Kerns v. Swope, 2 Watts 75. We think therefore that there was error in the admission of this evidence.

There is nothing in that part of the charge which forms the subject of the 2d assignment of which the plaintiff in error has any just cause to complain. If the learned judge did not expressly state to the jury that it was part of his ease that the fence had been moved from the sunken ground, it was necessarily implied. If the attention of the court had been called to the omission at the time, no doubt it would have been explained and supplied. We never reverse on exceptions of this kind, unless it is clear that the jury may have been misled.

The 3d specification relates to that part of the charge in regard to the effect of the entry, of which there was some evidence, to stop the running of the Statute of Limitations. From the position of this clause at the end of the charge, it may be conjectured that it was in answer to some point orally put by the counsel of the defendants below. It may be that there was some evidence of an interruption of plaintiff’s actual possession, a break in its continuity, to a very small and unimportant extent — twelve or fourteen inches. It is evident, however, that the point to which the attention of the court was called was not this, but the effect of the entry upon the plaintiff’s title by the Statute of Limitations to the entire premises in dispute. The testimony relied on to sustain this assignment is that of William McGinniss, who said: “ at one time Edward McGinniss moved the fence over on one part of it, and next morning we tore it down and put it back in the old post holes ; at that time Edward claimed about 60 odd feet * * * don’t know how long it was before Edward brought the first suit against me.” Now, considering this as sufficient evidence of a formal entry, and that Edward McGinniss had such a right or title as would make it available to him to stop the running of the Statute, Hole v. Rittenhouse, 7 Harris 305, it is necessary that he who sets up such an entry should show with at least reasonable certainty when it took place. The Act of Assembly of April 13th 1859, Pamph. L. 603, provides “ that no entry upon lands shall arrest the running of the Statute of Limitations, unless an action of ejectment be commenced therefor within one year thereafter.” Without evidence, then, ascertaining with some degree of precision, if not the exact day, at least that the entry was within the space of a year before Edward McGrinniss commenced the first action of ejectment, the entry went for nothing. There was no evidence whatever to authorize the jury to infer this; and the learned judge below was therefore right in this part of his charge.

The three remaining assignments of error are to the admission of witnesses whose competency was objected to on the score of interest. We think that there was no error in the admission of these witnesses. It is unnecessary to discuss these assignments at length, because, as the cause goes back to be again tried, all objection to their competency is now removed in consequence of the change of the law of evidence introduced by the Act of Assembly passed April 15th 1869, Pamph. L. 80.

Judgment reversed, and venire facias de novo awarded.


author: Asnbw, J. —

text:
    Stewart versus Bremer.
    1. Bremer owned a line of coaches, Bennington was his agent at a station. Leopold owing Bennington, pledged tools for the debt, borrowed them from Bennington to work with and. pledged them to Stewart for a debt to him. Stewart put them into one of Bremer’s coaches to be carried, and did not pay, or tender the freight. When the coach reached Bennington’s, he took the tools out, claiming them under the pledge, tendered Stewart the amount due him from Leopold, declaring that he took the tools on his own responsibility, and not as agent for Bremer. Held, that Bremer was not liable as common carrier to Stewart.
    2. Bennington was not the servant of Bremer in. the transaction, and liable over to him for negligence or breach of duty.
    3. If there was any liability on Bennington, it was to Stewart or Leopold for taking the tools.
    4. The freight not having been paid, Bremer’s liability as a carrier had not begun and no contract for carriage had been consummated.
    November 15th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the court of Common Pleas of Payette county: No. 20, to October and November- Term 1869.
    This action was commenced before a justice of the peace, August 8th 1866, by Lock Stewart against R. M. Bremer. The justice having rendered judgment for the plaintiff for $35, the defendant appealed to the court of Common Pleas.
    The facts in the case appeared to be these: The defendant was the owner of a line of stages running from Cumberland, Maryland, to Washington, Pennsylvania. One Moses Bennington, innkeeper in Brownsville, was the stage agent for Bremer. A man named Joseph Leopold had become indebted to Bennington for boarding, and as a pledge for the debt had delivered his carpenter’s tools to Bennington; Leopold at the same time owed one Moffitt $6. After the tools had been in the possession of Bennington for some days, he lent them to Leopold to enable him to go to work. At Leopold’s request the plaintiff paid the debt due Moffitt, and also paid $1, Leopold’s stage fare to Uniontown, for the repayment of which sums Leopold pledged the tools to the plaintiff and delivered them into his possession. The plaintiff put the tools into one of the defendant’s stages before it had reached the station at which Bennington was agent, to be delivered in Uniontown, and told the driver that he would be over at the office (Bennington’s) and pay the freight. When the stage came to the office, Leopold was on the driver’s seat. Bennington seeing him there with the tools, upbraided him for going away with the tools, took them from the coach and put them into his bar under lock. The plaintiff came in and demanded them, saying he had advanced Leopold $7 for them. Bennington handed the plaintiff $7, which he returned, saying he would hold the defendant responsible. Bennington said he was acting on his own responsibility, the defendant had nothing to do with it. Leopold was present. The plaintiff did not pay or tender payment for the carriage of the tools.
    On the trial the defendant called Bennington as a witness; he was objected to by the plaintiff on the ground of interest, but was admitted by the court who sealed a bill of exceptions.
    The defendant was in the habit of carrying packages, &c., on his coaches. The drivers were authorized to receive the packages, pay over the freight to the agent at the next station, and have them there entered on the way-bill; if the package, were put on the coach at the station the agent received the freight.
    The court (Gilmore, P. J.) after stating the facts charged: * * *
    “ The policy which holds common carriers so strictly, for fear of collusion, or fraud or neglect, has no place in a case like this. Here the claimants were face to face, contesting the matter. The tender of the seven dollars took away all hold which the plaintiff had to the tools. He was completely stopped of any right to the possession, and of consequence cannot maintain this action. But if we should be mistaken as to this, and we feel there is some doubt about it, we are sure that the plaintiff will be barred of his recovery on another ground. It is admitted the freight was not paid, and that it was to be paid to the agent. Now we say, and so charge you, that the freight not being paid, although the tools were on the hack —thebargain for carrying not being consummated — the agentmight refuse for any reason to carry them, and having refused to do so, his principal is not responsible. I think that if any one had stepped forward and said, ‘ I claim these articles and am about to be defrauded,’ it would have been competent for the agent to refuse to assist in this fraud by carrying them away.”
    The verdict was for the defendant.
    On the removal of the case to the Supreme Court by the plaintiff, he assigned for error the admission of Bennington as a witness ; and the charge of the court.

      G-. W. K. Minor (with whom was A. P. Willson) for plaintiff in error. —
    As to admission of the witness cited 1 Greenleaf’s Ev., §§ 393, 394; Dorrance v. Commonwealth, 1 Harris 160; Catawissa Railroad v. Armstrong, 13 Wright 187. As to the charge: Story on Contracts,. §§ 752, 758, b.; Jones on Bailments, Appendix 7.
    There was no argument or paper-book for defendant in error.
   The opinion of the court was delivered, January 3d 1870, by

Asnbw, J. —

We discover no substantial error in this case. In the whole transaction in respect to the tools in question, Moses Bennington was acting in his own behalf, and not as agent for Bremer, and the plaintiff and Leopold, the owner of the tools, were so informed at the time of the transaction. Bennington was, therefore, not the servant of Bremer, and not liable over to him for negligence or breach of duty. If liable to any one, he was liable to the plaintiff in trespass for taking the tools out of his custody, or to Leopold the owner. Both were present and acting in the affair, and both understood Bennington to claim the tools in his own right, while as to Bremer they knew he had not been paid the freight, and that his liability as a carrier had not fairly begun. The tools were put aboard the stage at the upper end of the town, a short distance from the station, and Stewart was to come over and pay the freight. He did come over, made no tender of the money, at first took the amount he had advanced for Leopold, the owner of the tools, and then returned it at Leopold’s instance., The whole transaction plainly shows that the carrier’s duty had not fairly begun, and consequently that the contract for carriage was not fully consummated. If Bennington had no right to the possession of the tools, he was a trespasser and the remedy of the plaintiff is against him.

Judgment affirmed.


author: Agnew, J. —

text:
    Grant et al. versus White et al.

    A survey called for a tree “on the bank of the Monongahela river, and thence down said river by the several courses and distances,” &c., to the beginning. The distance from the tree to the water was fourteen perches, and the diagram showed the marks as being at some distance from the margin. Held, there being no evidence of a contrary intention, the river was the boundary.
    November 15th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Washington county: No. 108, to October and November Term 1869.
    This was an action of ejectment, commenced October 9th 1867, by Noah Grant and Eliza Grant against Murray A. White and others, for 20 acres of land, bounded by the Monongahela river on the south, George F. White on the east, &c.
    On the trial before Acheson, P. J., the plaintiffs gave in evidence a patent to Noah Grant, dated July 26th 1867, in pursuance of a warrant to him dated January 30th 1865, and survey, for 13 acres 22 perches, dated February 6th 1865. It was admitted that the patent covered the land in dispute, and that the. defendants were in possession. The defendants gave in evidence the official survey, May 7th 1799, for John Fenton, in pursuance of a warrant to him dated March 5th 1796, for a tract of land called “Sugar Narrows:” also patent for the tract included in the survey, “beginning at a locust or elm, north 29° east 73 perches,” &c., thence by various courses and distances set out in the patent “to a post, south 41° east 87 perches to a sugar tree on the bank of the Monongahela river, and thence down said river by the several courses and distances 169 perches to the beginning, containing 134J acres,” &c. The defendants own the title of Fenton. The elm and locust, and the sugar trees, were on the bank of the river, and the question was, whether Fenton’s survey terminated his title there or whether it extended to the river. The land in the plaintiffs’ survey and patent being the land lying between these marks and the low-water line of the Monongahela. A certified copy of the official draft of the survey, given in evidence, showed the marked trees on the bank of the river as described in the patent, and showed also that these trees were at some distance from the river. There was evidence for the plaintiffs in rebuttal that the marks were 14 perches from low-water mark, that the content of the land covered by plaintiffs’ patent was 13 acres 21J perches, and that the land covered by Fenton’s survey was 140 acres 73 perches and allowance. There was other evidence showing that the marked trees were about 14 perches from the water of the river.

      The court, after referring to the facts, and applying the legal principles, concluded: “We instruct you, thatthe Fenton survey established the river as the boundary of the defendants’ land, and the plaintiffs’ action must consequently fail.”
    The jury found for the defendants. The plaintiffs took a writ of error and assigned the instruction of the court for error.

      W. Montgomery, for plaintiffs in error. —
    Where the line was, was a question of fact which should have been submitted to the jury: Bank of Pittsburg v. Whitehead, 10 Watts 402: Newbold v. Wright, 4 Rawle 195.

      W. MoKernan, for defendants in error. —
    The description in the Fenton survey and patent as “on the Monongahela river” carried the line to low-water mark: McCullough v. Wainwright, 2 Harris 174; Howard v. Ingersoll, 13 Howard 381; Cox v. Freedly, 9 Casey 128; Child v. Starr, 4 Hill, 369; Ball v. Slack, 2 Wharton 538; Klingensmith v. Ground, 5 Watts 459; Kelly v. Graham, 9 Id. 117; Wharton v. Garvin, 10 Casey 340.
   The opinion of the court was delivered, January 3d 1870, by

Agnew, J. —

The examination of authorities in the opinion just read, in the case of James Wood’s Heirs v. Adam Appal (ante p. 210), makes this case a very plain one. The return of survey and diagram leave no doubt of the intention of the surveyor to make the Monongahela river a boundary of the survey on the south-east side of the tract. The tract is returned as situated on the Monongahela river, the diagram represents the river as a boundary, and the courses and distances down the river, instead of being laid down along the margin, are set to one side of the diagram and headed “courses and distances downriver.” The intention to make the river a boundary is too clear to be disputed. There was no evidence whatever to contradict this return. ’ While the corner trees, it is true, as is often the case, stood on the high bank of the river, at some distance from the stream, there was no line from one corner to the other, and no marks on the ground; but the survey is as open on the ground by the river as it is upon the diagram. In short there was nothing but the finding of the corners at the distance of twelve to fifteen perches from the stream to contradict the return, and this alone, as shown by the opinion in Wood v. Appal, is insufficient. The survey is returned to, and must go to the river, and no error was committed by the court in so instructing the jury.

Judgment affirmed.


author: A&new, J. —

text:
    Hedge and Horn’s Appeal.
    1. In proceedings in equity, for account, &c., there was an answer denying the allegations of the bill, but no replication: — the court without finding a partnership, or decreeing an account, referred the case to a master who heard testimony, found facts and reported an account. Held to be irregular, but no exception being taken in the court below, the Supreme Court would disregard the irregularity.
    2. The Acts of April 21st 1846, July 14th, 1857, April 14th 1835, June 16th, 1836, relating to appeals from decrees in equity and in the Orphans’ Court remarked on.
    3. A joint stock company .is a partnership, the capital of which is divided or agreed to be divided into shares, so as to be transferable without express consent of all the copartners.
    4. An application for shares and payment of the first deposit, does not constitute one a partner, where he had not interfered in the concern.
    5. The insertion of such subscriber’s name by the secretary in a book of the company, containing a list of the members, is not holding him out to the public as a partner, because he does not thereby acquire a right to a share of the profit.
    6. If a subscriber act as a member or director, attend meetings, &c., or otherwise give himself out as a member, he will make himself liable, though there be some want of the necessary formalities or acts of a party to make him legally a member.
    7. A partnership is founded in a voluntary contract of the parties, as distinguished from a mere community of interest, which by operation of law, may arise in various ways.
    8. A subscription to shares is but an act or declaration of the subscriber to become a partner, and is executory only.
    9. The meeting of some of the subscribers to organize their company and enter into the actual relation of members to it, binds none but those who meet.
    November 15th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Washington county: In Equity: No. 170, to October and November Term 1869.
    On the 12th of June 1867 Morgan W. Zollars filed a bill against Shadrach Hedge, Christopher Horn, Caleb H. Zollars, A. H.
    Deaves and thirty-nine others. The bill alleged :—
    1. That about April 1865 the plaintiff and defendants formed a voluntary association, called The Keystone Oil Company, to procure land and bore for oil.
    2. That the company was composed of 80 shares, the plaintiff owning four shares, C. H. Zollars four shares, Horn and Hedge two shares each, and the remaining shares were held by the other defendants in proportions set out in the bill.
    3. That there was to be paid $125 for each share, that thirteen of the defendants have paid the full amount for their shares, and that if the others would so pay there would be sufficient assets to discharge the liabilities of the company.

      4. That the company secured a lease of land, purchased machinery and sunk a well, but failed to obtain oil, and since November 1866 have done nothing further.
    5. That the company owes the plaintiff $827.50, and other persons about $1066.70.
    The prayers were for discovery of the amounts paid by each member; of the disbursements of the funds and of the liabilities of the company; for a receiver; for a settlement of accounts between the members and payments of the sums adjudged against them respectively and for further relief.
    C. H. Zollars admitted that he subscribed for four shares, but that by consent of the directors and at his request his subscription was reduced to two shares.
    Hedge and Horn answered jointly:—
    1. That on the application of Deaves they subscribed for two shares in a company to be formed, but never took any further part in the company, were never informed of any meeting, &c.
    2. They denied that they had any shares in The Keystone Oil Company, and averred that they never1 received any evidence that they were regarded as members of it.
    8. They averred that the value of the shares for which they subscribed was $50 each.
    4 and 5. They were not informed as to the allegations in these paragraphs.
    All the other defendants made default, and the bill as to them was taken as confessed.
    No replication was filed to the answer of Hedge and Horn.
    The court did not find a partnership nor decree an account. Alexander Wilson, Esq., was appointed master; he heard a large amount of testimony on the questions raised by the bill and answer.
    The master, in his report, stated the evidence very much at large, and reported that Hedge and Horn had each subscribed for two shares of the stock and that neither had paid any part of their subscription. He further reported: * * *
    “ There is no testimony that Hedge and Horn ever did participate in any meeting of the company, but the evidence is plenary that the company was formed; and that a formal organization took place shortly afterward by the election of a president, vice president, secretary, treasurer and board of directors. This was done by the stockholders, as the minutes show, on the 28th day of April 1865.
    “Although the want of this formal organization would not relieve the respondents from liability, it shows that prompt £ steps were taken’ by the members to carry out the objects of the association. And the evidence is also plenary that £ liabilities were incurred’ by the company; undoubtedly incurred on the faith of the subscription of stock. Had Hedge and Horn desired to withdraw from the company, it was their duty to do so promptly before any liabilities had been incurred, or any steps taken toward the prosecution of the work. Hedge and Horn subscribed to the stock, told divers persons that they had taken stock, suffered the company to go on with the work and incur large indebtedness, and they cannot now be permitted to set up the defence that they never received formal notice of meetings, or participated in the formal action of the company. The consideration for their subscriptions was the prospective gains of the association in the venture for oil, and the law does not recognise the doctrine of Hedge that if oil was obtained, he would pay; otherwise he would not.” * * *
    “ So soon as 'a subscription paper, such as this was, becomes complete by the subscription of the stipulated amount of money, the subscribers become an association, united for contributing to a common fund for a common purpose; the subscription of each becomes a contract by each with his fellows, in consideration of similar contracts by them, to contribute to the common fund the amount subscribed by him. But this subscription may be withdrawn before the actual organization and before any liabilities have been incurred on the faith of the subscription.” * * *
    The master reported an account finding amongst other things that Hedge and Horn owed $250 each; also what was due from each stockholder, the names of the creditors and the amount due to each, the claim of the plaintiff, $507.71, being one.
    The report of the master was excepted to and confirmed by the court; who decreed that Hedge and Horn should each pay $250, that the other stockholders pay what was ascertained by the report to be due by them, that the plaintiff and the other creditors be paid their respective claims, &c.
    Hedge and Horn appealed and assigned for error: Referring the case to a master without first decreeing an account, decreeing the payment by Hedge and Horn of $250 each, and confirming the master’s report.

      D. T. Watson, for appellants. —
    There being no replication the answer was to be taken as true : Story’s Eq. Pleading, § 877, note 6; Cooper’s Eq. 328, 329; Brightly’s Eq. §§ 688, 708, 737, and cases cited. An account will be decreed only where there is a fiduciary relation as between partners, &c., not where the relation is merely debtor and creditor: Story’s Eq. Pleading, §§ 227, 262, 514, 516. This association was not a partnership as regards those who only agreed to pay subscriptions; the contract should have been executed: Parsons on Partnership 6 ; Addison on Contracts 725 ; 1 Parsons on Contracts 145; McCully v. Pittsburg and Connellsville Railroad, 8 Casey 25; Pittsburg and Connellsville Railroad
      v. Graham, 12 Id. 77; Rice v. Shuman, 7 Wright 37. On an ordinary contract a bill for account will not lie: Smith v. Levaux, 1 H. & M. 123; 1 Story’s Eq. I., § 442; Fowle v. Lawrason, 5 Peters’s R. 495; Strasburg Railroad v. Echternacht, 9 Harris 222. The appellants were not partners even as to third persons: 1 Parsons on Contracts 145. The breach of their contract is to be remedied by a common-law action: Rhey v. Evansburg Plank Road, 3 Casey 261.

      D. S. Wilson, for appellee. —
    Failure to file a replication avails nothing after hearing on the merits : Clement v. Hayden, 4 Barr 138; Long v. Long, Id. 29. Equity has jurisdiction over unincorporated associations : Act of June 13th 1836, § 13, Pamph. L. 789, Purd. 400, pi. 1, art. 5; Foley v. Tovey, 4 P. F. Smith 190.
   The opinion of the court was delivered, January 3d 1870, by

A&new, J. —

This is a bill in equity, setting forth a partnership, or voluntary association, actually formed, for the purpose of procuring land and boring for oil. The plaintiff, as a partner or member of the association, claims an account, and payment by the delinquent members of the sums alleged to be owing to the company. The principal question raised is, therefore, whether the defendants who appealed were members of the partnership, otherwise they are not liable to account under this bill. It is not an action by the association, against a subscriber for his subscription. If the appellants never became partners, the bill ought to have been dismissed, as to them. The appellants, while admitting that they signed a subscription paper (then being carried around for the purpose of forming a company), for two shares, of $50 each, and not at $125 a share, totally deny their membership as partners, averring that, after writing their names on the subscription paper, they never took any part in the formation of the company, were not informed of any meeting to organize, and never acted with the company as members thereof. This answer was not denied, by replication or otherwise, and the ease went to a master, who seems to have acted also in the capacity of examiner, in taking the testimony. The court did not find the fact of partnership, or decree an account, but the whole thing seenis to have come up on the report of the master, upon the testimony had before him. This was very irregular, but it is unnecessary to decide the case on thi3 ground. Indeed, after a hearing on the merits, without exception in the court below, to the formal defects, as was the case here, we might disregard the irregularity, under the law regulating appeals to this court in equity cases. The Act of 21st April 1846, Purd. 406, pi. 41, declares that appeals in equity from the Common Pleas shall he “ in the same manner and upon the same terms as appeals are allowed from the Orphans’ Court.” By the Act of 14th July 1857, Purd. 402, pi. 11, conferring on the several courts of Common Pleas the additional equity powers vested in the Court of Common Pleas and District Court of Philadelphia, the appeal is directed to be upon the same terms and conditions as provided for appeals from those courts. The appeal from the Common Pleas of Philadelphia is directed to be upon the same terms, and with the same regulations provided for appeals from the Orphans’ Court: Purd. 405, pi. 35. Upon decrees from the Orphans’ Court, the Act of 14th April 1835 provides that the Supreme Court shall “ hear and determine the same, as to right and justice may belong, and refer the same to auditors, when, in their discretion, they may think properand the Act of 16th June 1836 directs the Supreme Court, on appeals from the Orphans’ Court, “ to hear, try and determine the merits of such cases, and to decree according to the justice and equity thereof:” Purd. 769, pi. 50, 51. This brings us at once to the master’s report. The master finds, as to these appellants, and it is the utmost the facts reported can prove, that each of them “subscribed for two shares of stock, in the ‘Keystone Oil Company,’ of the value of $125 each, and that he has not paid any portion thereof.” The master, after stating the denial in the appellants’ answer, to wit, that they never took part in the formation of the company, and never acted as members of it, finds, as a fact, that there is no testimony that they ever did participate in any meeting of the company, but the evidence is plenary that the company was formed, and that a formal organization took place on the-28th of April 1865. In no part of his report does he state as a fact, or any fact indicating that the appellants became members of the company, or did acts of participation. From the subscription for shares alone, and the fact that the appellants gave no notice that they withdrew from the association, the master draws his conclusion that they were partners, or members, and reports against them for the non-payment of their subscriptions.

The whole case is narrowed down, therefore, to the question, whether a subscription to shares of an unincorporated joint stock association, without more, constitutes the subscriber a member- of the association, or partner liable to all the duties and responsibilities of a member. Upon this question we differ from the master, and court below, upon principle and authority. A joint stock company, such as this is, differs, in some respects, from an ordinary partnership. It is defined to be “ a partnership whereof the capital is. divided, or agreed to be divided, into shares, and so as to be transferable without the express consent of all the copartners.” This definition, taken from the statute of 8 & 9 Viet, e. 110, is said by Mr. Parsons, in his work on Contracts, c. 11, p. 144, to be applicable to such companies in this country. He further states, as the result of the authorities, upon the effect of becoming a subscriber to an intended company, as regards the creation of a partnership between the members, that an application for shares, and payment of the first deposit, did not suffice to constitute one a partner, where he had not interfered in the concern ; and that the insertion of his name by the secretary of the company, in a book containing a list of the members, was not holding himself out to the public as a partner; and this, on the ground that such person does not thereby acquire a right to share in the profits. So, on the other hand, if the subscriber interpose and act as a member, or director, or attend meetings, or accept office, or otherwise give himself out as a member, he will make himself liable, even though there be some want of the necessary formalities, or acts of a party to make him legally a member: 1 Parsons on Contracts 145.

Mr. Collyer, in his work on Partnership, p. 626, says, as to what constitutes an actual partner in a joint stock company: that in this, more than in any other .kind of partnership, a variety of acts are done before the partnership is actually commenced; notices are published, prospectuses are distributed, meetings held, officers chosen, deposits paid, scrip receipts given, long before the business is commenced, or the deed of settlement is executed. Many acts are necessarily done before the full number of intended shareholders are made up. Hence the mere subscription for stock, and payment of a deposit, and the doing of acts which merely exhibit an intention to become members, do not alone constitute them partners. Thus far, the contract is merely executory, and it becomes executed and the relation is established only when they evidence the fact by acts of participation. This, it seems to me, is founded upon good reason, and can stand well in principle. A partnership is founded in the voluntary contract of the parties, as distinguished from a mere community of interest, which by operation of law may arise in various ways; and hence, says Mr. Story, in his work on Partnership, § 5, it is an established principle of the common law, that a partnership can commence only by the voluntary contract of the parties. Now, what is a subscription to shares for the purpose of forming a joint association, to prosecute any work or matter of business ? When the first subscriber signs his name, he is unquestionably not a partner, for there is no other on the paper ; when the second subscribes, the partnership is not formed, for it is expected that others will subscribe. When the whole number of shares contemplated have been subscribed, the relation of partnership still is not formed, for until the subscribers enter upon their project nothing is done to effectuate their common purpose. The subscription is but an act, or declaration of the intention of the subscriber to become a partner, and is executory only. The thing itself yet remains to be done. Now, the meeting of some, or of many of the subscribers, to organize their company, and enter into the actual relation of members to it, binds none but those that meet. They can speak only for themselves, for not yet being partners, they cannot exercise their power of partners, to bind others as partners.

It is just at this point the error of the master begins. Because other subscribers met and formed a company, he draws the conclusion that all the subscribers not expressly dissenting, were bound. But this was not so, for the subscribers who met were not yet partners, and could not therefore bind those who did not meet. It needed the voluntary consent of the absent subscribers to the contract of partnership, to make them partners. This they never gave, by word or deed, and consequently they never became partners. If these views need any confirmation from our own authorities, they will be found in the following cases, where, though the very point is not ruled, its underlying principle is: Phipps v. Jones, 8 Harris 260; P. & Con. Railroad Co. v. Graham, 12 Casey 77; Strasburg Railroad Co. v. Echternacht, 9 Harris 220; Rice v. Shuman, 7 Wright 37; Edinboro Academy v. Robinson, 1 Wright 210.

Upon the whole case, we are of opinion that no partnership relation existed between the appellants and the other subscribers, and therefore that the bill must be dismissed, as to the appellants; but without any prejudice to the right at law of the company to sue for and recover, upon the "contract of subscription of the appellants, if any such right exists.

Bill dismissed without prejudice, and at the costs of the plaintiff in the bill.