author: Thompson, C. J.

text:
    Bolard and Snyder versus Mason.
    1. An appearance d. b. e. is conditional, if the writ be returned “ served if so returned it is a full appearance unless there be a retraxit before return.
    2. Appearance d. b. e. is to save being defaulted on an irregular or informal process.
    3. Where such objections do not exist, the plaintiff may demand a plea and enforce judgment for want of it, or in ejectment, enter a plea and proceed to trial.
    4. In ejectment an appearance was entered d. b. e., the attorney refused to enter a general appearance alleging the service to be irregular’, the court held the service good, 'and defaulted the defendant for want of an appearance. Held to be error.
    5. Judgment by default in ejectment cannot be entered without an affidavit of the sheriff, setting forth the manner of service under Act of April 13th 1807, § 2.
    6. A return in the name of the deputy sheriff is improper.
    7. Such return is insufficient to bring defendants into court so as to authorize a judgment by default.
    8. Such return may be amended by the sheriff if in office.
    9. Whether a defendant in ejectment can be defaulted after the second term, for want of appearance, not decided.
    October 17th 1870.
    Before Thompson, G. J., Read, Ahnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Qrawford county: No. 61, to October and November Term 1868.
    On the 18th of November 1857, an ejectment for 43 acres of land was commenced by A. A. Mason against David Bolard and Margaret Snyder. The writ was endorsed,—

      “ I authorize and depute S. Landon to execute the within writ, as witness my hand and seal.
    December 28th 1857. W. A. Hurst, Sh’ff. [t. s.] _
    _ December 29th 1857, served personally and by copy on David Bolard and Margaret Snyder. So answers
    S. P. Landon, Dep’y. Sh’ff.
    Sworn and subscribed before 1 me January 7th 1858. >
    H. B. Beatty, Proth’y.” J
    The case was put on the trial-list at January Term 1868, and continued until February Term of the same year. On the 10th of February, J. B. Brawley, Esq., appeared de lene esse for defendant, and moved to set aside the service for irregularity. The motion was refused, and February 11th, defendants refusing to enter a general appearance, on motion, judgment for plaintiff for want of appearance. On the 22d of February, the defendants moved to set aside the judgment, because the writ was not served as required by law. Same day the motion was refused.
    The defendants took out a writ of error, and assigned for error:—
    1. Refusing to set aside the service of the writ.
    2. Entering judgment by default for want of an appearance.
    3. Refusing to set aside the judgment.

      J. B. Brawley, for plaintiffs in error.

    — “ S. Landon” and “ S. P. Landon” are not presumed to be the same person: Nash v. Calan, 5 Manning, Grr. & S. 177; Kinnersley v. Knott, 7 Id. 979; Miller v. Hay, 3 Exch. 14; Wood v. Reynolds, 7 W. & S. 406. The return of the deputy in his own name was insufficient: Stat. 12, Edw. II. ch. v.; Roberts’s Dig. 399 ; Beale v. Comm’th., 7 Watts 183; Dewar v. Spence, 2 Whart. 219; Emlyu. Drum, 12 Casey 123. The service “ personally and by copy” was wrong: Act of June 13th 1836, §§ 2, 86, Pamph L. 572, 587, Purd. p. 30, pi. 3 ; p. 39, pi. 8 ; Winrowu. Raymond, 4 Barr 501; Weaver v. Spinger, 2 Miles 42; Bank v. Perdnarles, Bright. 67; Act of April 13th 1807, § 2, 4 Sm. L. 476, Purd. 365, pi. 5. Entering judgment for want of an appearance more than 10 years after suit brought is irregular: Acts of March 21st 1806, § 12, 4 Sm. L. L. 332, Purd. 366, pi. 10; December 5th 1860, § 1, Pamph. L. 844, Purd. 367, pi. 17 ; Traer v. Bowman, 3 Penna. R. 70. There being an appearance d. b. e., judgment could not be entered for want of an appearance: Blair v. Weaver, 11 S. & R. 84; Michew v. McCoy, 8 W. & g. 501.

      S. N. Pettis, for defendant in error.
   The opinion of the court was delivered, January 3d 1871, by

Thompson, C. J.

— On the 11th of January Í868, the above entitled case being down for trial, having been brought November 1858, judgment by default was entered against the defendants for a refusal to enter a general appearance to the action, an appearance de bene esse by counsel standing on the record at the time. Conceiving the service and return of the writ in the' case to be insufficient, as well as for other reasons, the counsel refused to appear generally, and hence the judgment against their clients by default. They were certainly not bound to appear, if right in regard to the service and return of the writ. “ An appearance de bene esse,” said Duncan, J., “in Blair v. Weaver, 11 S. & R. 87, “ if filled up at length, is an appearance conditionally, viz.: if the summons or scire facias be returned served; if it is, then there is a return with a full appearance, so much so, that on the writ thus returned 1 would consider the party in court, appearing by his attorney, unless on or before the return he entered a retraxit of his appearance2 Tr. & Haley by Eish, 70. Such an appearance is peculiar to Pennsylvania practice. It is not found in the English practice. Its object is to save being defaulted on irregular and informal process. But where objections of this kind do not exist, the plaintiff might demand a plea and enforce judgment for want of it, or in ejectment enter a plea under the Act of Assembly and proceed with the trial. But although the court below held the service and return in the case in hand sufficient, in which case, according to the authorities, the appearance de bene esse became unconditional, yet the defendants were defaulted for want of appearance. This was error on the court’s own theory, measured by the authority referred to. Even if the court had not been in error in holding that there was no appearance, and that the defendants were subject to be defaulted as the record stood, yet this could not be legally done without the affidavit of the sheriff or his deputy, setting forth the manner of service of the writ according to section 2 of the Act of 13th April 1807. No such affidavit appears to have been made. There are, therefore, errors in this also.

Without determining whether the form of the return “ served personally and by copy” was, or was not, sufficient, we are of opinion that it was improperly made in the name of the deputy, merely styling himself deputy sheriff. The English, as also our own authorities, conclusively show, that under the Stat. of 12 Ed. 2, ch. 5, the return of all writs directed to the sheriff must be made in his name by whomsoever served : Wat. on Sheriff’s Marg., paging 67 — 68 ; Dewar v. Spence, 2 Wh. 220; Emly v. Drum, 12 Casey 123. The return here is “served personally and by copy, so answers S. P. Landon, deputy-sheriff.” This was a clear disregard of the rule of the statute; the return was therefore bad and insufficient to bring the defendants into court, so as to authorize a judgment by default against them. We make no account of the omission of a middle initial from the deputy’s name by the sheriff, when deputizing him. It is most likely he was but a special deputy for the occasion. However that may be, the presumption will stand until overturned by proof, that the writ was served by the person authorized, when the Christian' and surname agree, with the exception of a middle initial. It is not intended to say that the irregular return of the deputy might not have been amended by the sheriff if in office. No' doubt it could have been. Whether it might yet be amended we do not say.

While we treat the return of service as we have done, we do not say the writ was void. It is not. It is a good writ, but unexecuted as it stands. Nor do we conceive it necessary to deal with the question raised in argument, that a defendant in ejectment cannot be defaulted for want of appearance after the second term. There are dicta both ways, and I have no doubt the practice has been, to some extent, both ways. This question is therefore reserved. But for the reasons given,

This judgment is reversed.


source: Caselaw Access Project

author: Shaeswoob, J.

license: Public Domain

text:
    Klumph versus Dunn.
    1. In slander it is not necessary that all the words laid in the declaration should be actionable, it is sufficient if some are.
    2. All words spoken at the time may be laid and given in evidence as showing the animus.

    3. Where words impute that a common-law offence had been committed in another state, it need not be affirmatively proved that the offence was indictable there.
    4. The presumption is that the common-law of a sister state is similar to our own.
    5. That words should impute an offence for which there would be liability to prosecution or punishment, is not the criterion of their actionable character.
    6. To render words actionable per se they must impute an offence of moral turpitude punishable criminally.
    7. The law as to the offence in the country in which the words are spoken is to determine their character.
    8. Words spoken in Pennsylvania charged the commission of adultery in Georgia. Meld,, that they were actionable per se.

    9. The position in life and the family of a plaintiff in slander are important circumstances as bearing on the question of damages and are admissible; they need not be laid in the declaration.
    October 17th 1870.
    Before Thompson, -0. J., Read, Agnew, Sharswood and Williams, JJ.

      Error to the Court of Common Pleas of Crawford county: No. 144, to October and November Term 1868.
    This was an action of slander brought June 28th 1865 by James L. Dunn against Lester E. Klumph.
    The declaration was:—
    “ That whereas, he, the said James L. Dunn (a practising physician and married man), is a good, true, faithful and honest citizen of Pennsylvania, and from the time of his nativity hitherto hath been held, esteemed and reputed of good name, &c., and from drunkenness, adultery and all other acts of a degrading character free, &c. Nevertheless the aforesaid Lester E. Klumph, not being ignorant of the premises, but maliciously intending the said James L. Dunn of his good name, &e., to deprive, and also the said James L. Dunn unto danger of the laws against such offences made, to bring, on or about the-day of June 1865, at the county aforesaid, these false, feigned and scandalous words following of and concerning said James L. Dunn, in presence and hearing of divers citizens of said Commonwealth, maliciously, falsely and unjustly did say, speak and publish, to wit: ‘ That Dr. Dunn is ■----. He lay drunk all the time he was in the army; had a negro wench for his waiter and slept with her every night (meaning thereby that he committed adultery with said negro wench), and had one of his own townsmen put in the guard-house for speaking to her. This he could prove.’ ”
    The case was tried January 3d 1868 before Johnson, P. J. The plaintiff gave evidence, by a number of witnesses, that in June 1866, at a store, in the presence of a number of bystanders, the plaintiff not being present, the defendant used the words laid in the declaration, accompanied with other gross and profane expressions; also that the plaintiff had been a surgeon in the army, and continued so during all the war of the rebellion. F. A. Temple, a witness for plaintiff, on cross-examination said that he “ took it for granted that the conversation was about Sherman’s march to the sea-coast.” The plaintiff gave evidence also that he had lived in Conneautville ten years; had four children, of whom three were daughters; he was a physician.
    The defendant gave evidence that in his declarations he had said that the conduct of the defendant of w'hich he spoke.was “while he was with Sherman at Atlanta.” He gave evidence also that the words were spoken in an excited altercation which he had had with Temple, one of plaintiff’s witnesses, in which Temple mentioned the plaintiff as authority to establish something which witness had stated, and that defendant said that he had been told what he stated by a soldier.
    The defendant’s points and the judge’s answers were:—

      “ 1. All the words laid in the narr. are not actionable.
    “ 2. If they were spoken of the plaintiff with reference to his acts while in the South, or outside of Pennsylvania, it must be shown that they were there criminal, and in violation of law, and unless so shown, the plaintiff cannot recover.”
    “Answers: 1. We have no hesitation in saying that the words ' are actionable.
    “ 2. That if the evidence had shown that the crime alluded to had been charged to have been committed in a particular place, and it had been proven that the alleged offence was not a crime indictable as such at that place, we think the charge would not, per se, be actionable here where uttered; but this question does not legitimately arise, because no venue is given, either in the narr. or in the evidence, to the crime imputed.”
    The judge said in his charge:—
    * * * “ This declaration does not allege the plaintiff’s professional character as inducement, nor charge that the damage resulted to it. It merely recites, in parenthesis, that the plaintiff was a practising physician and a married man; and it is proper these facts, as well as any others that relate to his character and standing in community, should be taken into consideration by the jury. It is his character as a man that is assailed, and in that capacity he has brought suit.”
    The verdict was for the plaintiff for $700.
    The defendant took a writ of error, and assigned for error the answers to his points and that part of the charge given above.

      J. B. Brawley and Derrickson, for plaintiff in error.
    — Words are actionable per se only when they impute an indictable offence: Lukehart v. Byerly, 3 P. F. Smith 418. When words not actionable are laid in the same count as those actionable, it is the same as where there is a general judgment and some of the counts are faulty: Ruth v. Kutz, 1 Watts 489; Stitzell v. Reynolds, 9 P. F. Smith 489; Gosling v. Morgan, 8 Casey 273. The plaintiff should have shown that the offence was criminal in the place in which it was asserted to have been committed: Barclay v. Thompson, 2 Penna. R. 148. Adultery is not indictable at common law: Buys v. Gillespie, 2 Johns. R. 114.

      S. N. Pettis (with whom were M. P. Davis and H. L. Richmond), for defendant in error,
    cited 2 Whart. Crim. Law, §§ 2400. 2648. Words to be actionable need not charge an indictable offence: Beck v. Stitzel, 9 Harris 522.
   The opinion of the court was delivered, January 3d 1871, by

Shaeswoob, J.

— It is not necessary that all the words laid in the declaration should be actionable. It is sufficient if some of them are. The court below, therefore, were not required either to affirm or deny the defendant’s first point as presented: “ that all the words charged were not actionable.” They answered correctly that the words laid were actionable without saying whether all were. It is true that a general judgment in slander, where some of the counts set out words which are not actionable, is erroneous; but non sequitur that a count in which non-actionable words are laid with those which are actionable is therefore bad. All the words spoken at the time may properly be stated and given in evidence; for they explain and show the animus of the principal charge.

The court below may have erred in their answer to the defendant’s second point, in saying that the question whether the words would be actionable if the offence was charged to have been' committed in another state without showing that it would be criminal there, did not arise, because no venue was given either in the narr, or in the evidence to the crime imputed: and also in the charge that the evidence did not show where the offence was stated to have been committed. These form the second and third errors assigned. It must be conceded that there was evidence from which the jury might legitimately have inferred that the conversation to which the defendant’s witnesses had testified was the same conversation as that referred to by the plaintiff’s witnesses, and that taking the whole together the defendant meant to confine his accusation to what had occurred in the South while the plaintiff was with Sherman at Atlanta, or from Atlanta to Savannah. Even Temple, the witness of the plaintiff, -testified on his cross-examination that he took it for granted that the conversation was about Sherman’s march to the sea-coast. If this was a material question in the cause it was for the jury to decide, and it was error in the court to withhold it from them. But if it was immaterial it did the defendant no injury. The court, as often happens, gave a wrong reason for a right decision.

The case of Barclay v. Thompson, 2 Penna. R. 148, decides that an action will not lie for words spoken in another state when the offence charged is not indictable in that state, although it may be indictable here. To the same effect are Stout v. Wood, 1 Blackford 71; Offut v. Earlywine, 4 Id. 460; Linville v. Earlywine, Id. 469; Langdon v. Young, 33 Vt. 136. The reason is a very plain one. The defendant committed no legal wrong where the words were spoken. No action lay there, and therefore not in any other state in which the defendant might afterwards be found and sued. In this case, however, the words were spoken in this state. It has often been held that where the words impute a common-law offence to have been committed in another state it need not be affirmatively proved that such offence is indictable there. The presumption is, that the common law of a sister state is similar to our own, and in one case it is intimated, though not decided, that if the offence charged derives its quality as a crime from the statute alone, the rule would be otherwise: Johnson v. Dickens, 25 Miss. 580; Van Ankin v. Westfall, 14 Johns. 233; Poe v. Green, 3 Sneed 664; Montgomery v. Dealey, 3 Wisc. 709. But after a careful search, I find no case which directly holds that words charging an offence of moral turpitude, and indictable by the statute law of the country where they are uttered, are not actionable per se, because they state the offence to have been committed in another country. The opinions in some of the cases cited seem to rely upon the liability of the defendant to extradition under the Constitution of the United States, or treaties with foreign states. But that surely is not the true ratio decidendi. Nothing seems to be better settled than that liability to prosecution or punishment is not the criterion. Both ancient and modern cases agree in this.

In Carpenter v. Tarrant, Ridg. temp. Hardw. 339, the words were : “ Robert Carpenter was in Winchester gaol and tried for his life and would have been hanged had it not been for Leggat,for breaking open the granary of Farmer A. and stealing his bacon.” Here the words necessarily imported that the plaintiff had been tried and acquitted, and therefore could never be convicted of the same offence. In Gainford v. Tuke, Cro. Jac. 536, the words were : “ Thou wast in Launceston gaol for coining.” The plaintiff replied: “If I was there, I answered it well.” “Yea,” said the defendant, “you were burnt in the hand for it.” Here the words clearly meant that the plaintiff had been tried, convicted, pleaded his clergy and been burnt in the hand, and of course could not be again punished for the same offence. So in Baston v. Tatham, Cro. Jac. 622, it was held to be no defence to prove that the offence charged was within the terms of a general pardon, for the court remarked that although the pardon might discharge of punishment, yet the scandal of the offence remained. It may be said that in these cases there was liability to indictment oh the charge, though the plaintiff by pleading could prevent conviction and punishment. It is to be remarked, however, that in all of them the slander carried its antidote with it as far as risk of indictment was concerned. They are distinguishable in this respect from that class of decisions where the corpus delicto is shown never to have existed; as where the words were “ you have killed Bob Waters; you have poisoned him, and I can prove it,” and it appeared by the plaintiff’s witnesses that at the time when the words were spoken, Bob Waters was alive in a distant part of the country: Eckart v. Wilson, 10 S. & R. 44; Deford v. Miller, 3 Penna. R. 103; Colbert v. Caldwell, 3 Grant 181. There are 16 P. F. Smith — 10 other cases, however, in which there could be no pretence of risk of prosecution. In Fowler v. Dowdney, 2 Moo. & R. 119, Lord Denman ruled those words to be actionable : “ He is a returned convict,” as importing that the punishment had been suffered, but the infamy remained. There was here no charge that the plaintiff had been guilty of any particular offence, so that it could not be said that he ran any risk in consequence of the slander of being subjected to another prosecution. Such was the determination of this court in Smith v. Stewart, 5 Barr 372, in which the words were “ that man was in the penitentiary of Ohio.” Here there was neither liability to punishment nor prosecution growing out of the charge, which was that the plaintiff had committed some crime for which he had already been punished in the penitentiary; yet the words were held to be actionable per se.

IVhat then is the, criterion ? Mr. Starkie, after an elaborate review of the cases, comes to the conclusion that as it is necessary to have some clear and certain rule by which the line of demarcation between actionable and non-actionable words can be drawn, none could be adopted more convenient than that which refers the question to the criminal law, and confirms the action to imputations of offences of moral turpitude, punishable in the temporal courts: 1 Starkie on Slander 27.

But to what law are the courts to refer to ascertain whether the offence charged is of this character ? Upon every principle of reason and policy the answer seems to be the law of the country where the words are spoken. That law is the exponent of the moral sense of that community — of the estimation in which they hold offences against the moral law, and words which accuse a man of any crime, condemned and subjected to infamous punishment by that law, expose him in that community to obloquy and contempt. The moral character of the act canpot be affected by the place where it is committed. What matters it to those to whom the words are addressed, or in whose hearing they are spoken, that the crime is charged to have been committed in a state or country where such actions are not subject to punishment ? Even if they arc to be presumed to know that the act was not a crime punishable by the law of the country where it was alleged to have been committed, would it any the less injure the moral character and standing of the party charged ? Is it possible that a man living in Pennsylvania can be accused of having committed the crime inter Ohristianos non nominandum upon some uninhabited coast or island where there is no government and no law, or among some barbarous people where such practices may be, as they have been, tolerated ? Is such a plaintiff to be turned out of court unless he can prove some special damage ? This may be an extreme case, but nevertheless it tests the principle. If the criminal code laid its heavy hand upon such calumniators, there might be some good reason for requiring special damage to be shown in all actions of slander, but we know that it does not, and unless the lash is placed in the hands of the injured party they must go “ unwhipped of justice.”

If the evidence of the plaintiff’s witnesses was to be believed, the defendant below charged him in a public store, in the presence of many persons, in the grossest terms with open and continued criminal connection with a negro wench, and asserted with an oath that he could prove it. By the law of Pennsylvania, from 1705 to the present time, adultery has always been ah indictable offence, and of its moral turpitude there can be no question. The plaintiff was a married man — the defendant knew him to be so, and meant to charge him with this offence, and in language which was designed to convey his own sense of its detestable character, especially no doubt in view of the race and color of the party who was alleged to have been a partaker in the crime. We are of the opinion that the words were actionable per se, whether they were limited to the state of Georgia or were general; and that the plaintiff in error has no just ground of complaint with the answer and charge of the court below in this respect.

The 4th error assigned remains to be noticed. It is true, as decided in Chubb v. Gsell, 10 Casey 115, that in an action of slander the plaintiff cannot introduce evidence as to his good character until it has been attacked by the defendant; for until then the law presumes it to be good, and the defendant admits it. Surely the jury may weigh the fact that the character and standing of the plaintiff is unimpeached in estimating the damages. But the court told the jury that they might also take into consideration that the plaintiff was a practising physiciaii, although the declaration did not allege his professional character as an inducement, nor charge that the damage resulted to it. The position in life and the family of the plaintiff are always important circumstances as bearing upon the question of damages, and have always been held to be admissible in evidence for that purpose : Beehler v. Steever, 2 Whart. 313. It was not necessary that they should be specially laid as the ground of recovery in the declaration. Evidence of these particulars was given without objection, and it would have been error to have instructed the jury that they ought to disregard them.

Judgment affirmed.


author: Read, J.

text:
    Wright et al. versus Davenport.
    1. The Act of April 16th 1850, § 40-45 (Insolvent Banks), construed.
    2. The 45th section contemplates the single case of a report of the auditors finding fraudulent insolvency.

    3. When the report is that the insolvency is not fraudulent the proceeding is at an end and an issue cannot be ordered.
    4. On an issue to try whether the insolvency of a bank was fraudulent, the court charged: “The Act of Assembly pronounces every insolvency fraudulent, prim& facie, and this presumption shall be rebutted only by proof on an investigation that the affairs of the bank had been honestly and legally administered by its officers and directors. No actual fraud or corrupt mismanagement, or embezzlement of the funds is necessary to be shown. The fact of insolvency is declared to be a legal fraud, and this judgment of the law remains until rebutted by proof.” Held to be error.
    5. In sue!) issue the question is to be tried without any primfi, facie imputation of fraud.
    October 17th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Prie county: No. 160, to October and November Terms 1869.
    This was a feigned issue, ordered August 12th 1865, “ to try the fraudulent insolvency of the Bank of Commerce from the auditor’s report.”
    The issue was ordered to be made up between S. A. Davenport, assignee of the Bank of Commerce, plaintiff, and C. B. Wright and twelve others, defendants, and that the plaintiff should declare in indebitatus assumpsit.

    The origin of this case was as follows: The Erie City Bank was organized in August 1858, under an act of incorporation, approved» April 5th 1853; it suspended in December 1856. In April 1858 it was reorganized under the name of the Bank of Commerce, its name having been thus changed upon application, to'the court. It continued to do business until the 20th of November 1860, when it closed its doors.
    The defendants in this issue were the officers and directors at the time the bank suspended. On the 10th of January 1862, the bank made an assignment to the plaintiff in the issue, and filed a statement of the condition of its affairs.
    The court appointed three auditors “ to make a strict investigation of the affairs of the bank, and of the accuracy and fairness of the statement presented to the court.” A report was made in I September 1863, signed by two of the auditors: they say “ they ¡ are called upon to characterize the management of the bank from November 1854 to its suspension in 1856 as extremely prejudicial to its interests and disastrous to its prospects;” and also “ that since the time of resumption in 1858 it appears to have been carefully managed.”
    The proceedings were under the following sections of the Act of April 16th 1850, Pamph. L. 492, 493, Purd. 103, 104, pi. 108-113

      “ Sect. 40. If the insolvency of the said hank he occasioned by the fraudulent conduct of the directors of the said bank, the directors, by whose acts or omissions the insolvency was in whole or part occasioned, and whether then in office or not, shall each be liable to the stockholders and creditors of the said bank for his proportional share of the losses, the proportion to be ascertained by dividing the whole loss amongst the whole number of directors liable for its reimbursement.
    “ Sect. 41. The insolvency of every bank hereafter incorporated shall be deemed fraudulent unless its affairs shall appear, upon investigation, to have been fairly and legally administered, and with the same care and diligence that agents receiving a compensation for their services are bound by law to observe.
    “ Sect. 42. The term insolvency used in this act shall be construed to apply to the said bank when it'is compelled to make an assignment according to the provisions of this act; and it shall thereupon be the duty of the directors of the said bank, for the time being, within ten days after such assignment, to file in the office of the prothonotary of the Court of Common Pleas or District Court of the proper county, verified by oath or affirmation, a full statement of .its affairs, containing, &e. * * *
    “ Sect. 43. If the court shall be in session when the statement is filed, the same shall be immediately presented' to the court by the said directors for examination; and if the court shall not be in session at such time, then the said statement shall be presented upon the first day of the session of the court thereafter; and it shall thereupon be the duty of the court to appoint three competent auditors, who shall be sworn or affirmed, to make a strict investigation of the affairs of such bank, and of the accuracy and fairness of the statement thus presented to the court, and to perform their duties with fidelity.
    “ Sect. 44. The auditors thus appointed shall have power to compel the production of the books and papers, and to subpoena and examine the directors and officers of such bank, and generally to have and exercise all the authority now conferred on auditors by existing laws; and, after having performed their duties, they shall report to the court the result of their investigation ; and in case they report that the insolvency was fraudulent, it shall be their duty also to ascertain and report the amount due from the several directors, according to the liabilities imposed by this act.
    “ Sect. 45. The said court shall thereupon proceed to the investigation of the matters contained in said report, and shall determine whether the insolvency of such bank was fraudulent or otherwise; or, if they deem it necessary for the purpose of justice, they may direct an issue at the request of any person interested, to try the fact of fraudulent insolvency; and if the judgment of the court upon the report of the auditors, or upon the verdict rendered upon such issue, shall he that the insolvency of such bank was fraudulent, then and in such case the said court shall proceed to decree against the directors the amount due from each according to their several liabilities; and the said Court of Common Pleas or District Cohrt, for the purpose of carrying into effect the provisions of this act, shall have the same powers and authorities to obtain the appearance of persons, and to compel obedience to their orders and decrees and enforce execution thereof, as are by law vested in the said courts in cases of trust.”
    On the 2d of September 1865, a declaration in assumpsit was filed. On 12th a rule was granted to show cause why the issue should not be stricken off. Dec. 1st 1865, on motion of plaintiff’s counsel, form of issue changed by striking out the words, “ indebitatus assumpsit,” and substituting case, and pleadings to be altered accordingly. On the 5th a declaration in case was filed. On the 16th of June 1866 the rule to strike off the issue was discharged, to which the defendants excepted, and the court sealed a bill of exceptions. November 22d the defendants entered a rule for a special jury. November 30th the court directed that the jury be struck on the third Monday of December.
    “ The cause came on for trial December 12th 1866. A struck jury had been theretofore ordered, and but twenty-five jurors answering, defendants’ counsel moved for leave to strike from the entire list of jurors drawn for the term. This the court overruled, and ordered that the striking be from those jurors present.” The defendants excepted, and the court sealed a bill of exceptions.
    The plaintiff gave in evidence the assignment of the bank to the plaintiff; the statement of the directors of the bank filed to February Term 1862; also the condition of the Erie City Bank, and evidence for the purpose of showing the fraudulent insolvency of the Bank of Commerce. He offered legislative documents for 1861 showing the statements of the bank. The offer was objected to by the defendants, admitted, and a bill of exceptions sealed. The plaintiff closed.
    The defendants offered the report of the auditors in evidence, the plaintiff objected, the offer was rejected, and a bill of exceptions sealed.
    The defendants submitted these points:—
    1. If the bank was insolvent when it passed into the hands of defendants, the charge of fraudulent insolvency is not imputable to them.
    2. To make the defendants liable, the evidence must satisfy the jury that they were guilty of fraud in producing the insolvency of the bank.
    3. Fraud is not to be presumed; its positive existence must be shown; and if it has not been, the verdict must be for the defendants.
    4. Mismanagement, or errors in judgment in the affairs of the bank, unless purposed, and the result of fraudulent intention, will not make the defendants liable.
    5. If there were directors — other than the defendants — in the management of the bank when it first failed and afterwards, and they are not made parties to the present issue, there can be no recovery against the defendants.
    6. If there should be a verdict against the defendants, it must be against all or none.
    The court answered the points as follows:—
    “ 1. This point is answered in the negative. If the new organization was insolvent at its inception, and this fact was known to those who composed and managed the organization, and upon its rotten foundation they built the superstructure of a bank and issued a large circulation, promises to pay, which were represented and intended to be taken by the community as good and solvent, it would be fraudulent. The insolvency would be fraudulent. The Act of Assembly was passed just or mainly to guard against such like fraudulent organizations.' If it .was insolvent no notes should have been issued. If they had not been issued, there would have been no insolvency. Their insolvency was the result of the issue. Then, if their issue was fraudulent, their insolvency was fraudulent, and that fraudulency is attributable to those who made out and put that issue into circulation/’

      “2. This point answered in the negative,'with the explanation in its answer to the defendant’s 3d point.”
    “ 3. The Act of Assembly pronounces every insolvency fraudulent primd facie, and this presumption shall be rebutted only by proof on an investigation that the affairs of the bank had been honestly and legally administered by its officers and directors. No actual fraud or corrupt mismanagement, or embezzlement of the funds, is necessary to be shown. The fact of insolvency is declared to be a legal fraud, and this judgment of the law remains until rebutted by proof. The issue framed is for the purpose mainly of allowing the directors to prove that the affairs of the bank have been fairly and legally administered. Of course it must appear in that investigation that its affairs were administered unfairly and illegally. This is the converse of the proposition, and the verdict affirms as true one or the other of those propositions.” “ 4. Our last answer applies to this point. Men are presumed to intend just what they accomplish. Legal frauds are often perpetrated without any intention of the party implicated in them. While the rule as to the proof of fraud indicated in these points is true in its general application to the conduct and affairs of men, I cannot affirm it as correct in its applicátion to the case under consideration, because tbe legislature have prescribed a different rule for our guidance in such an issue as the one before us. Mere errors of judgment would not authorize a verdict of fraudulent insolvency.”
    “ 5. We decide this point in tbe negative.”
    “ 6. The issue you are sworn to try is tbe fact of fraudulent insolvency. The question of whether the defendants named are too many or too few is one not involved in our present duty. Tbe issue is formed between tbe assignee and those who appear by the books of tbe bank to bave been tbe directors elect at tbe time it closed its motions. The issue is for a specific purpose. The parties on the record are sufficient for tbe attainment of that purpose, and whether it embraces more or less than may appear to bave been in default, is a matter of no material consequence.”
    Tbe verdict of tbe jury was: “ They find tbe Bank of Commerce fraudulently insolvent, and further find that this was attributable to tbe acts and omissions of C. B. Wright, one of -its directors.”
    February 1867. A rule to show cause why tbe verdict of tbe jury should not be set aside was made absolute so far as to strike out that part of tbe verdict designating O. B. Wright as the only-party implicated, as surplusage, and discharged as to balance.
    Tbe defendants took out a writ of error, and assigned for error :
    1. Ordering tbe issue.
    2. Refusing leave to strike tbe jury from tbe whole list.
    3. Changing tbe form of tbe issue.
    4. Refusing to admit the report of tbe auditors in evidence.
    5-10. Tbe answers to tbe points.

      W. H. Rawle (with whom were J. O. Marshall, F. F. Marshall and Derriokson), for plaintiffs in error.

      J. M. Walker (with whom was 8. A. Davenport, p. p.), for defendant in error.
   The'opinion of tbe court was delivered, January 3d 1870, by

Read, J.

The decision of this case depends upon a fair construction of tbe Act of tbe 16th April 1850, "regulating banks. This act, with its kindred legislation, has been practically swept away by tbe establishment of national banks, and deprives the case of tbe interest which would arise if it were to form a precedent for tbe future.

By tbe42d section, “Tbe term insolvency used in this act shall be construed to apply to tbe said bank, when it is compelled to make an assignment according to tbe provisions of this act;” and by tbe 41st section, “ The insolvency of every bank hereafter incorporated shall bei deemed fraudulent, unless its affairs shall appear, upon investigation, to have been fairly and legally administered, and with the same care and diligence that agents receiving a compensation for their services are hound by law to observe.”

By the 40th section, “ If the insolvency of the said hank be occasioned by the fraudulent conduct of the directors of the said bank, the directors by whose acts or omissions the insolvency was in whole or in part occasioned, and whether then in office or not, shall each be liable to the stockholders and creditors of the said bank for his proportional share of the losses, the proportion to be ascertained by dividing the whole loss amongst the whole number of directors liable for its reimbursement.”

Within ten days after the assignment, it is the duty of the directors for the time being to file in the office of the prothonotary, on oath or affirmation, a full statement of its affairs, containing the particulars specifically mentioned in the 42d section.

This statement must be immediately presented to the court by the directors, for examination, and if the court is not in session, then upon the first day of the session of the court thereafter;— “ and it shall thereupon be the duty of the court to appoint three competent auditors, who shall be sworn or affirmed to make a strict investigation of the affairs of such bank, and of the accuracy and fairness of the statement thus presented to the court, and to perform their duties with fidelity.”

By the next section, “ The auditors thus appointed shall have power to compel the production of books and papers, and to subpoena and examine the directors and officers of such bank, and generally to have and exercise all the authority now conferred on auditors by existing laws; and after having performed their duties, they shall report to the court the result of their investigations ;— and in case they report that the insolvency was fraudulent, it shall be their duty also to ascertain and report the amount due from the several directors, according to the liabilities imposed by this act.”

The provisions in the next section clearly contemplate the single case of a report by the auditors of a fraudulent insolvency, with the amount due by the directors. In such case the court proceeds to examine the matters contained in the report, “ and shall determine whether the insolvency of such bank was fraudulent or otherwise,” or they may direct an issue to try the fact of fraudulent insolvency;” and if the judgment of the court, upon the report of the auditors, or upon the verdict rendered upon such issue, shall be that the insolvency of such bank was fraudulent,” [it will be observed the sole inquiry here is — was the insolvency fraudulent ?] then and in such case the said court shall proceed to decree against the directors the amount due from each, according to their several liabilities.” It is clear that an issue only can determine the question of fraudulent insolvency, and the court must resort to the report of the auditors for the amount due by the directors, and their several liabilities, and for this purpose the court is given the same powers as are by law vested in them in cases of trust.

It is clear therefore that this whole section has no application except where the auditors report a fraudulent insolvency, and the amount due by the directors. Where the report is that the insolvency was not fraudulent the whole proceeding is at an end.

The Erie City Bank was organized in August 1853, and continued in active business till in December 1856, when it suspended. It continued in this condition till in April 1858, when other and distinct parties undertook to resuscitate it, and had its name changed to the Bank of Commerce. Under this name it continued to do business until the 20th or 21st of November 1860, when it suspended, and on the 10th of January 1862 made an assignment of its effects to S. A. Davenport, which was approved by the court, and a statement of the bank’s condition, and an inventory and appraisement of its assets, were afterwards filed. They were referred to three auditors, and in September 1863 a detailed and elaborate report was made by two of the auditors, the other one dissenting from its conclusion, in which they say they are called upon to characterize the management from November 1854 to its suspension as extremely prejudicial to its interests and disastrous to its prospects, and also “ that since the time of its resumption in 1858 it appears to have been carefully managed.”

Not one word here as to fraudulent insolvency, and of course not a word as to any amount due by the directors. Here, of course, by the terms of the act, the case really ended.

It rested until September 1864, when without authority of law the court, on the application of the assignee, ordered an issue, in which the assignee and the present named defendants were to be the parties, to try the fraudulent insolvency of the Bank of Commerce.

The. defendants objected to the whole proceeding, but without avail. The docket entry styles it — “ Issue to try the fraudulent insolvency of the Bank of Commerce from the auditors’ report.”

On the trial of the issue, the defendants offered in evidence the report of the auditors, which was rejected by the court, in which we think there was error, and as the issue grew out of the report, it would seem to have been a proper part of the plaintiff’s case, and as he did not choose to produce it, it was the right of the defendants to bring it before the court.

The issue was — was the insolvency fraudulent ? — and not whether any of the defendants were culpable or guilty; and there can be legally no finding implicating all or any of the defendants.

The court certainly erred in supposing an investigation not necessary, in order to ascertain whether the insolvency was fraudulent. The appointment of the auditors shows this, for they are “ to make a strict investigation of the affairs of such bank,” “and they are to report the result of their investigation,” and they are not to assume the insolvency to be fraudulent, but, on the contrary, they are by strong implication forbidden to do so.

So when the court “ proceeds to the investigation of the matters contained in said report,” and shall determine whether the insolvency of such bank was fraudulent or otherwise,” it does not assume it to be so, but to depend upon the unbiassed judgment of. the court. So when an issue is directed, the report is naturally the subject of investigation by the jury, and the question is to be tried without any primá facie imputation of fraud. There is therefore an error running through the answer of the court to the second and third points of the defendants, in asserting an investigation is only to be in rebuttal, when the investigation must be made to show whether it was fraudulent or otherwise.

Upon the whole we think there was error in directing the issue, and that all the proceedings subsequent to the report of the auditors must be reversed. .

Agnew, J., filed a dissenting opinion, in which Williams, J., concurred.


text:
    Brown’s Appeal.
    1. The Act of December 14th 1863 (Landlord and Tenant) is a complete system for obtaining possession by a landlord.
    2. A landlord commenced proceedings before a justice to recover possession ; before judgment, the magistrate and plaintiff were enjoined by the Common Pleas. Held to be error, and out of the jurisdiction of the court.
    3. The remedy for the tenant was by certiorari or appeal.
    4. Where there is a positive statutory remedy, which may be pursued, equity cannot interfere on the ground of irreparable mischief.
    5. Lex nemini fácil injuriam, applied.
    6. Irreparable damages cannot be alleged against statutory remedies legally pursued.
    October 17th and 18th 1870.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Appeal from the Court of Common Pleas of Erie county. In Equity. No. 187, to October and November Term 1869.
    On the 16th of April 1866, Philena Brown and Joshua Folansbee, two of the executors of Hiram L. Brown, deceased, commenced proceedings under the Act of December 14th 1863 (Pamph. L. 1864, 1125, Purd. 1341, pi. 1), against William C. Curry and the plaintiff, to recover possession of certain premises, the estate of the decedent; the complaint alleged that they had given notice to the tenants to remove, &c. The parties appeared on the 21st, and at the request of the tenants the case was adjourned until the 18th of May.
    On the 12th of May 1866, The Second National Bank of Erie filed a bill against Philena Brown, John Hearn and Joshua Folansbee, executors, &c., of H. L. Brown, deceased, setting out:—
    2 and 3. That about April 1st 1865, they entered into a parol agreement with Mrs. Brown and Hearn to rent for banking purposes two rooms in a building known as “Brown’s Hotel,” part of the estate of the decedent, for three years, with the privilege of extending the lease two years longer, at the rent of $800 per annum, payable quarterly, and to execute a written lease shortly after; that the rooms were not in a propor condition for the business, and in consideration of the length of the lease, the complainants made extensive and costly improvements, under the observation of Mrs. Brown and Hearn.
    6. Mrs. Brown and Folansbee refused to carry out the agreement, Hearn being willing to do so, and they had instituted proceedings at law to dispossess complainants unless they would pay an increased rent.
    The prayer was to restrain Mrs. Brown and Folansbee from proceeding at law to dispossess complainants, and that defendants be decreed to execute a lease according to the agreement.
    Judge Johnson, at chambers, granted a special injunction.
    Mrs. Brown and Folansbee by their answer averred:—
    4. That the complainant had a full and adequate remedy at law.
    5. Folansbee denied knowledge of the agreement, &c., with complainants, but admitted that he had joined in proceedings to dispossess complainants.
    6 and 7. Mrs. Brown denied the agreement to lease set out in the bill, or that complainants took possession under such agreement, and averred that one Curry had been in possession of the premises as tenant from year to year, and that the complainants’ possession was but a continuance of Curry’s.
    Hearn admitted the allegations in the bill.
    Testimony was taken in support of the allegations in the bill, and on the 30th of September 1868, the court (Vincent, J.) decreed that the injunction be made perpetual.
    The defendants appealed to the Supreme Court, and assigned the decree for error.

      B. Grant (with whom, was S. A. Davenport), for appellants.
    The mode provided in the Act of 1863 (supra) must be pursued: Act of March 21st 1806, § 13, 4 Sm. L. 432, Purd. 41, pl. 5. This was a proceeding at law, and the court in equity have no power to enjoin it: Gilder v. Merwin, 6 Whart. 541-543; Hagner v. Heyberger, 7 W. & S. 107; Erie Canal Company v. Lowry, 6 Am. L. Reg. 750; Bright’s Eq., § 25, p. 283.

      J. C. Marshall (with whom was F. F. Marshall), for appellee.
    Jurisdiction in equity is not ousted unless the-remedy at law be complete and adequate: Kirkpatrick v. McDonald, 1 Jones 387; Skilton v. Webster, Brightly’s R. 302.
   The opinion of the court was delivered, November 3d 1870, by

Thompson, C. J.

— The only question we shall notice in this appeal is, that of the jurisdiction of the Court of Common Pleas in granting the injunction complained of: we shall therefore pass by all questions in the case but this.

The Landlord and Tenant Act of 1863 provides an ample remedy whereby to recover possession of leased premises when it is alleged that the term has expired. It is not a one-sided remedy, for it allows to the defendant ample scope to allege and prove any legal defence he may have against the plaintiff’s demand, with the right of review by appeal or certiorari. It is a complete system for that species of controversy. I do not know that it is a wise system; that may be doubted, but it is complete in itself. Proceedings under this system were legally and regularly begun by the defendants, as appears by the records before us; but before a final result was arrived at, the Court of Common Pleas interposed by injunction, and stopped them. The reason assigned for this was, supposed hardship upon the plaintiffs, if the plaintiffs in the proceeding repossessed themselves of what they had leased to the defendants. This was manifest interference without authority of law. The court had no jurisdiction in equity of the proceedings. They were not contrary to law; and if they had been, an injunction was not a correctional process. That was to be done by the process provided in the act, viz., by appeal or certiorari. These were the legal matters provided in the act, and a court of equity could not supplement them. Courts may restrain acts contrary to law, but not where they are according to positive law. That would be to put the courts above the legislature. Where a positive statutory remedy exists and may be pursued, equity cannot interfere on the ground of irreparable mischief. The “law injures no one,” is a maxim which inculcates obedience to law. Where positive law in point of fact injures, it is the legislature which must furnish the corrective; courts cannot. Irreparable damages cannot be alleged against statutory remedies legally pursued, and that was the case of the plaintiffs before the magistrate. These principles are plain, and need neither authority nor elaboration to substantiate. We think the court below had no jurisdiction in equity to restrain these defendants from proceeding under the Landlord and Tenant Act referred to, to try their right to repossess themselves of the leased premises in question. The decree in the case is therefore reversed, and the bill is dismissed at the costs of the appellees.


author: Agnew, J.

text:
    Wheeler versus Woodward.
    1. Arbitrators awarded, “ we And for the defendant for tbe reason * * that the defendant did * * tender to the plaintiff the sum of $20 * * and did bring $20 before the arbitrators and tendered the same to the plaintiff, which is now in the hands of the arbitrators subject to the demand of the plaintiff. And we find that the balance due from defendant to plaintiff on account was $10.43.” Judgment was entered for the defendant on the award; the court directed judgment to be entered for plaintiff for $10.43. Held to be error.
    2. l'ho arbitrators could be compelled to pay the money into court.
    3. If the defendant took the money,the court could compel him by attachment to restore it.
    4. Tender is a good plea in bar, and if followed up, protects the defendant.
    5. The sum brought into court becomes the money of the plaintiff and the verdict goes for the defendant carrying with it costs.
    October 18th 1870.
    Before Thompson, C. J., Rea», Asnew, Shakswood and Williams, JJ.
    Error to the Court of Common Pleas of JSrie county: of October and November Term 1870, No. 95.
    This case was between Daniel J. Woodward, plaintiff, and Charles M. Wheeler, defendant. It was commenced before a justice of the peace, and on the 26th of July 1866 removed into the Court of Common Pleas by appeal.
    Under a rule of reference entered by the defendant, the arbitrators made this award ;—
    “May 12th 1870, arbitrators, after due deliberation, do say, that we find for the defendant, for the reason that we find, from the evidence, that the defendant did, prior to the commencement of this suit, tender to the plaintiff the sum of $20 lawful money, which the plaintiff did refuse to take as a settlement, and that we further find that the defendant did bring $20 United States legal tender notes before the arbitrators, on the trial, and tendered the same to plaintiff by laying it on the table, as money brought into court, which plaintiff did not accept, and which is now in the hands of the arbitrators, subject to the demand of the plaintiff. And we find that the balance which was due from defendant to plaintiff on account, was $10.43.”
    The docket entries were:—
    “May 13th 1870, award of arbitrators filed, who say, £we find for the defendant;’ same day judgment upon the award for the defendant nisi.
    “May 28th 1879, on motion of plaintiff, rule granted to show cause why the award of arbitrators should not be amended, and judgment be entered for the plaintiff for $10.43.
    “May 30th 1870, the court, on hearing, refuse to alter the award, but construe the award to be one in favor of the plaintiff, for the sum of $10.43, and direct the entry to be so amended by the prothonotary.”
    Judgment was entered accordingly, and there was no appeal.
    The defendant took out a writ of error, and assigned for error entering judgment for the plaintiff.

      W. Benson, for plaintiff in error.
    — If the award was wrong, the remedy was by appeal: Post v. Sweet, 8 S. & R. 391. The reasons of the arbitrators were surplusage: Green v. Fricker, 7 W. & S. 171; Fisher v. Kean, 1 Watts 259. Tender was greater than the amount due, and the award should be for defendant: Pennypacker v. Umberger, 10 Harris 495; 2 Archbold’s Pr. 183.

      B. Grant and J. Sill, for defendant in error.
    — The court may reject surplusage: Green v. Fricker, supra. — Tender should have been pleaded: Seibert v. Kline, 1 Barr 38 : Harvey v. Hackley, 6 Watts 264; McDowell v. Glass, 4 Id. 389; Dickerson v. Anderson, 4 Whart. 78; Act of 1705, § 2, 1 Sm. Laws 49, Purd. 331, pi. 2. The court had the right to investigate the award, and therefore to amend: Fitzsimmonsv.Leckey, 3 Penna. R. 111.
   The opinion of the court was delivered, October 27th 1870, by

Agnew, J.

— It was an error on part of the court to direct the award to be entered for the plaintiff, whether it be termed altering or construing the award. It was in fact, however, a dear-alteration. The arbitrators say expressly that after due deliberation they find for the defendant, and for this they gave a good reason. To put this reason in fewer words, they said that the defendant tendered the plaintiff $20, and brought the money into court, while he owed the plaintiff but $10.43. A tender is a good plea in bar, and if followed up protects the defendant. The admitted sum brought into court becomes the money of the plaintiff, and the verdict goes for the defendant, carrying with it a judgment for costs. The finding of the arbitrators on the plea of tender was right, therefore, and left the plaintiff his only remedy, to wit, to call for the money which the arbitrators can be compelled to pay into court for the use of the plaintiff. It does not appear that the defendant took away the money after the award, and if he did, the court can compel him by attachment to restore it.

The order of the court of May 30th 1870 is therefore reversed, and the entry of the award of May 13th 1870 restored with costs.


text:
    Robinson versus The Atlantic and Great Western Railway Co.
    1. Robinson issued execution and levied on land as belonging to a railway company, he thereby affirmed the company’s title.
    2. A company owning land and having power to mortgage gave a mortgage of all their estate and property real and personal, the mortgage covered the land, whether it was necessary to the enjoyment or its franchises or not.
    3. A receiver of all the mortgaged property having been appointed the land was in legal custody and could not be levied on.
    4. Whether the land should pass into the hands of a receiver could be determined only by the court that appointed him.
    October 18th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1870.
    .On the 1st of October 1865, the Atlantic and Great Western Railway Company mortgaged to John R. Penn “ all the estate and property, real, personal and mixed, and all fixtures, rights, privileges, franchises, easements, rights under leases, terms, and parts of terms, agreements, covenants and contracts of all and every kind, held and owned or occupied by the said party of the first part. * * * Together with all and singular the lands, * * * privileges, franchises, rights and interests, real estate, personal property, choses in actions, leasehold and other things, of and belonging to said party of the first part of every kind, nature and character,” &c.
    On the 15th of January 1870, the Supreme Court of Pennsylvania appointed Reuben Hitchcock, receiver of all the property, &c., of the company covered by the mortgage.
    On the 21st of January 1867, the plaintiff recovered a judgment against the company for $1022. On the 17th of March 1870, the plaintiff issued execution on his judgment, and levied on two pieces of ground in Meadville, the property of the company; owned by them before and at the date of mortgage, which were condemned.
    On the 22d of April, Hitchcock, the receiver, petitioned the Court of Common Pleas setting forth the foregoing facts, and praying the “ court to set aside the above writ, levy and inquisition, and restrain the said plaintiff from proceeding to execute his writ on any of the property in the possession, custody, control and ownership of your petitioner as receiver of the Atlantic and Great Western Railway Company.” A rule was granted to show cause why the levy and inquisition should not be aside.
    On the 18th of July 1870, the court set aside the execution and all the proceedings in the case, Yincent, J., saying : “ It appears to us that the property taken in execution by the plaintiff is in the custody of the law and his remedy therefore is by application to the court that appointed the receiver and has control of his actions as such.” This decree was assigned for error by the plaintiff, who removed the case to the Supreme Court by writ of error.

      J. B. Brawley, for plaintiff in error.
    — This property not being necessary for the road, was not covered by the mortgage, and therefore was not under the control of the receiver: Morrill v. Noyes, 3 Am. Law Reg. 18; Seymour v. Canandaigua and N. Railroad, 25 Barb. 284; Shamokin Yalley Railroad v. Livermore, 13 Wright 465; Plymouth Railroad v. Colwell, 3 Id. 337.
    P. Church, for defendant in error.
    — A receiver is an officer of the court, 2 Story Eq. § 831. His possession is not to be disturbed by a private creditor: Id. § 833 a; 1 Sm. Ch. P. 640; Angelí v. Smith, 9 Yesey, Jr., 335; Wiswall v. Sampson, 14 How. 52; Peale v. Phipps, Id. 368; Noe v. Gibson, 7 Paige 513; Packer v. Browning, 8 Id. 388; 3 Daniel’s Ch. 1982; 1 Sanf., ch. 185; 2 Redfield on Railroads, 364. No one but the Commonwealth can call in question the right of a corporation to hold real estate. It cannot be gainsaid by a private suitor: Leasure v. Hillegas, 7 S. & R. 313; Baird v. Bank of Washington, 11 Id. 411; Runyan v. Coster, 14 Peters 122. If the real estate of a corporation is necessary to the enjoyment of its corporate rights and privileges it cannot be taken in execution : Canal Co. v. Bonham, 9 W. & S. 27; G-ue v. Tide Water Canal Co., 24 How. 257; Ludlow v. Hurd, 6 A. L. R. 502.
   The opinion of the court was delivered, October 27th 1870, by

Agnew, J.

— The plaintiff in error, who was plaintiff in the execution, levied upon the property mentioned in the description of the sheriff as the property of the defendants, and proposed to sell it as such. He therefore affirms the defendants’ title by his own act. This is neither the time nor the manner of establishing the want of title of the defendants by reason of a want of power under their charter to take and hold the property.

The court below set aside the plaintiff’s levy and execution on the ground that the property had passed into the hands of a receiver appointed by the Supreme Court, under proceedings in equity on a mortgage given by the defendants. The question is therefore not upon the relation of the property to the railroad, to wit, whether appertenant to it or necessary for the enjoyment of the franchises of the company, but whether it was included in and passed under the mortgage. The property being owned by the company at the time of the execution of the mortgage, it clearly passed under the terms “ all and singular the estate and property real, personal and mixed ” of the company, and the words, “ Together with all and singular the lands, &c., &c., rights and interests, real estate, &c., &c., of and belonging to said party of the first part of every hind, nature and character in either of the states of New York, Pennsylvania and Ohio.” The company having power to mortgage all its property real and personal, and the instrument having embraced everything of a real and personal nature, it becomes immaterial whether the real property in question was necessary to the use or enjoyment of the railroad, or was not. Being included in the mortgage, it passed into the custody and management of the receiver appointed by this court to administer the affairs of the corporation for the benefit of the creditors. It was then in gremio legis, in legal custody, and to permit it to be levied and sold under the process of the Court of Common Pleas would at once raise a conflict of jurisdiction, and interfere with the right of the receiver of the Supreme Court to manage the property under his appointment. If the property might be taken piecemeal from the custody of the receiver, the remedy of the creditors under the mortgage would become worthless, or at least greatly imperilled. Ample authority has been cited by the defendants in error. If a creditor believes that the property was not legally mortgaged, or for any good reason should not pass into the hands of the receiver, his duty is to apply to the court having appointed the receiver to ask its discharge out of custody.in order that he may proceed against it. Eor these reasons we think the court below was right in setting aside the levy and execution.

Order affirmed.


text:
    Barker versus McCreary.
    1. The Supreme Court will not reverse for want of a declaration or plea after a trial on the merits.
    2. A justice rendered judgment for $46 62, the plaintiff appealed and.two years afterwards obtained a judgment on verdict for $50. Held, that he was entitled to costs.
    3. The judgment in court was for a greater sum and more favorable than that from which he appealed.
    4. To ascertain whether the jury added interest in their verdict, the court would have to go out of the record, which cannot be done.
    5. Park v. Sweeney, 3 AVright 111, distinguished.
    October 18th 1870.
    Before Thompson, O. J.,_ Read, Agnhw, Shaeswood and Williams, JJ.
    Error to the Court of Common Pleas of Erie county: No. 117, to October and November Term 1870.
    This was an action commenced before a justice of the peace by K. O. Barker against John C. McCreary, in which judgment was rendered for the plaintiff November 8th 1867 for $46.62. The plaintiff appealed to the Court of Common Pleas: he there filed a declaration in assumpsit; and on the 18th of July, entered a rule to plead on or before the third day of the next term. No plea was entered.
    The parties went on trial September 2d 1869, when the verdict was for the plaintiff for $50..
    On the 4th of September the defendant obtained rules to show cause “ why judgment should not be entered for the amount of verdict and costs before justice only,” and “why defendant’s costs should not be deducted from amount of verdict.”- Both rules were made absolute.
    The plaintiff took out a writ of error, and assigned for error:—
    1. Going to trial without an issue of fact on the record.
    2. Making the rule absolute to show cause why judgment should not be entered for amount of the verdict and costs before the justice only.
    3. Making the rule absolute to show cause why defendant’s costs should not be deducted from amount of verdict.

      B. Grant, for plaintiff in error,
    cited, as to 2d and 3d errors, Act of April 9th 1833, § 1, Pamph. L. 480, Purd. 600, pl. 70; Haines v. Moorhead, 2 Barr 65; Holman v. Fesler, 7 W. & S. 313; King v. Boyles, 7 Casey 424.

      McCreary & Gunnison, for defendant in error, as to 1st error,
    cited Sauerman v. Weckerley, 17 S. & R. 116; Bratton v. Mitchell, 5 Watts 69 ; Long v. Long, 4 Barr 29; Ins. Co. v. Seitz, 4 W. & S. 273. As to 2d and 3d errors they cited the Act of 1833, supra; Park v. Sweeney, 3 Wright 111; Magill v. Tomer, 6 Watts 494.
   The opinion of the court was delivered, January 3d 1871, by

Agnew, J.

— The plaintiff in this case has no right to complain of a trial without a plea. He had a rule on the defendant to plead or judgment, and might have enforced it. This court will not reverse a judgment for want of a plea or a declaration after a trial on the merits: Sauerman v. Weckerly, 17 S. & B.. 116 ; Glenn v. Copeland, 2 W. & S. 261; Bratton v. Mitchell, 5 Watts 69; Long v. Long, 4 Barr 29; Ins. Co. v. Seitz, 4 W. & S. 273.

The 2d and 3d assignments of error are more substantial. It may be the jury allowed interest on the plaintiff’s demand, which makes up the difference between the sum for which the justice gave judgment, to wit, $46.62 and $50, the sum found by the jury. But how can we know this ? They may not have done so; and there is no rule, therefore, that can be adopted which will certainly do justice. The plaintiff appealed, and afterwards obtained a greater sum and more favorable judgment than that from which he appealed. He falls therefore within the very terms of the Act of 9th April 1833, and within the express decision in Haines v. Moorhead, 2 Barr 65. To this citation may be added McMaster v. Rupp, 10 Harris 298 ; and King v. Boyles, 7 Casey 424. In the former, the plaintiff appealed from a judgment of seventy cents, and recovered a judgment for eighty-six cents; and in the latter, the plaintiff appealed from an award of no cause of action, and recovered a judgment of ten cents; and in each case the plaintiff was allowed his costs under the Act of 1833. Park v. Sweeney, 3 Wright 111, cited by the defendant in error, is an authority on the other side. It is true that Lowrie, C. J., in that case said that interest must he added to a judgment tendered by the defendant before making his appeal, in order to compare it with the sum actually recovered; but he adds, “ We do not go out of the record to make the comparison, and we could not do so without opening a new field of litigation. The offer was of $50 and interest, for the law adds the interest. We do not speculate about whether the arbitrators added interest after the appeal in making up their award, but simply decide as a matter of law, and of fact, too, that the offer is greater than the award when we bring them together at one date.” But in this case we must necessarily go out of the record to discover whether the jury allowed interest in their verdict. The judgment as to the costs is therefore reversed, and judgment is now given for the plaintiff below for full costs.


author: Sharswood, J.

text:
    The Pennsylvania Railroad Co. versus Riblet.
    1. A railroad company is not bound to make fences along their track unless required by their charter.
    2. The Act of April 13th 1868 requiring railroad companies within Erie county to rebuild fences destroyed by fire from their trains, is within the police power of the state and is constitutional.
    3. It is the duty of the legislature to provide for the public safety; and they have for this purpose all the legislative power of the Commonwealth.
    4. Since the amendments of 1864, the title of an act is part of it.
    5. The effect, not the purpose of an act, determines its validity.
    6. Nothing but a clear usurpation of a power prohibited will justify pronouncing an act of the legislature void.
    October 18th 1870.
    Before Thompson, C. J., Read, Agnew, Shakswood and Williams, JJ.
    Error to the Court of Common Pleas of Erie county: No. 118, to October and November Term 1870.
    Jacob Riblet brought an action before a justice of the peace for the penalty imposed by the Act of March 23d 1868, “ To secure farmers against losses caused by railroads in Erie county,” and its supplement of April 23d 1868, Pamph. L. 424, 1022.— The act provided:—
    “ That it shall be the duty of each company owning or operating a railroad in the county of Erie, to erect, where not already erected, and to keep and maintain on each side of the track or tracks of said roads, at all places in said county, except where said road or roads pass through a village, borough or city, or a public road crosses the same, a suitable fence five feet high, to prevent cattle, sheep and swine from going upon said tracks; and in ease any company referred to in this act shall neglect to perform the duty herein imposed, the company so offending shall be answerable to the owner or owners of any horses, cattle, sheep or swine the value of the property injured upon said roads in consequence of such neglect;' said company or companies shall further be liable to the penalty of fifty dollars for each place along said roads in said county where the fence or fences required by this act to be built, kept and maintained, are destroyed or broken down and permitted so to remain Lor a period of three days; the penalty herein imposed to be recovered one-half to the use of the informer and the other half for the use of the school districts of the township in which said offence or offences shall be committed.”
    The supplement enacted, that the provisions of the above act “ shall not apply to or upon lands in said county, in regard to which contracts exist by virtue of which the owners thereof are bound to build and maintain fences thereon along the line of the railroad passing through or along the same: Provided, That in all cases where fences along the line of any railroad are destroyed by fire caused by the running of trains or by the employees of any railroad, the said railroad company shall be liable to the penalties specified in the” above act.
    The facts in the case were: that the plaintiff owned a farm on the line of the Philadelphia and Erie Railroad, used and operated by the defendants under lease, in the county of Erie; that fences were necessary along said road for the protection of his improved land and crops, and a portion of the same was burned by fire communicated by the defendants’ locomotive since the 4th of July 1868, and that defendants neglected and refused to rebuild or repair the same, for the space of three days and upwards, and therefore plaintiff claimed to recover the penalty of $50 imposed by the foregoing act.
    The justice rendered judgment for the penalty, $50. The defendants appealed to the Court of Common Pleas, where there was a verdict for the plaintiff for $50, subject to the opinion of the court as to the constitutionality of the acts imposing the penalty, ami if deemed unconstitutional by the court, judgment to be entered for defendants, non obstante veredicto.

    The court (Johnson, P. J.) entered judgment on the verdict on the reserved point for the plaintiff.
    The defendants assigned this for error, on the removal of the case to the Supreme Court.

      J. R. Thompson, for plaintiffs in error.
    — The Philadelphia and Erie Railroad Company is not required by its charter to make or rebuild fences. The Acts of 1868 impose new conditions without the consent of the corporation, and are therefore unconstitutional: Meadville v. The Erie Canal Co., 6 I-Iams 66; The City of Erie* v. The Erie Canal Co., 9 P. E. Smith 174; Brown v. Hummel, 6 Barr 86.

      W. Benson, for defendant in error.
    — A railroad is subject to the same rules and regulations as a natural person, provided they do not infringe its charter : Angelí & Ames on Corp., § 266 et seq. The legislature may require railroad companies to fence, that being within the police power : Thorpe v. Rutland & B. Railway, 27 Vermont 140; State v. Noyes, 47 Maine 189; Madison & Indianapolis Railroad Co. v. Whitenck, 8 Ind. 217; New Albany & Salem Railroad Co. v. Tilton, 12 Id. 310; Indianapolis & Cincinnati Railroad Co. v. McAhren, Id. 552 ; Iowa v. Galena, &c., Railroad Co., 16 Iowa 6; Bulkly v. New York, &c., Railroad Co., 27 Conn. 479 ; Suydam v. Moore, 8 Barb. 358; Waldron v. Rensselaer and Saratoga Railroad Co., Id. 390; Talmage v. Rensselaer and Saratoga Railroad Co., 13 Id. 493; Abbott’s Digest of Law on Corporations 643, § 381; Boston, Concord and Montreal Railway v. State, 32 N. H. 215; Dartmouth Coll. v. Woodward, 4 Wheat. 518; Moore v. Veasie, 32 Maine 343; Providence Bank v. Billings, 4 Peters R. 514 ; Easton Bank v. Commonwealth, 10 Barr 442; Peters v. Iron Mountain Railway, 23 Missouri 107; Lyman v. Boston and W. Railroad, 4 Cushing 288. The legislature may give a new remedy: Hepburn v. Curts, 7 Watts 300; Schenly v. The Commonwealth, 12 Casey 29-57 ; Biddle v. Starr, 9 Barr 467; The Pittsburg Turnpike Co. v. The Commonwealth, 2 Watts 43-3 ; Taggart v. McGinn, 2 Harris 157; Sands v. Tillinghast, 11 Ind. 543; Camden and Amboy Railroad Co. v. Briggs, 2 Zabr. 623.
   The opinion of the court was delivered, January 3d 1871, by

Sharswood, J.

— It appears to be well settled that without some provision in their charter to that effect, a railroad company is not bound to make or maintain fences along the line of their track: 1 Redfield on Railways 482; Railroad Company v. Skinner, 7 Harris 298. It may be conceded that it would not be within the constitutional power of the legislature to impose such an obligation on any existing company : at all events, not on any company whose charter antedates the amendment to the Constitution of 1854 and contains no reservation to the legislature of the right to alter or amend it. The plaintiffs in error succeeding to all the rights of the Philadelphia and Erie Railroad Company, which was incorporated by an Act of April 3d 1837, Pamph. L. 170, by the name of the Sunbury and Erie Railroad Company, and in which there is no such reservation, undoubtedly occupy this position. For the state now to attempt to impose any new burdens in addition to those provided in the charter would be for one party to add a new term to the contract without the consent of the other, and that would impair or make it worse as the word imports : City of Erie v. Erie Canal Company, 9 P. F. Smith 174. It may also be conceded for the sake of the argument that it would not be in the power of the legislature to enlarge the common-law liabilities of such incorporated bodies for injuries to others, either as common carriers of passengers or merchandise, or as grantees of a right of way over the lands of others : at least, unless by some law or rule of general application to all persons, natural or artificial. We need express no opinion however upon so important a question here, as it is not involved in this case. We may agree that the legislature could not make such a .company liable to answer in damages for barns, houses or other improvements destroyed by sparks from their -locomotives without negligence in them, their agents or servants. These would be mere questions of private right between the parties, in which strangers or the public at large would have no interest. The constitutionality of the proviso of the Act of April 13th 1868, Pamph L. 1022, does not depend upon a denial of any of these concessions. It rests upon other and entirely different principles. It may be true that the obligation to make and maintain the fences along the road is on the landowner. If they fall to decay, are broken down by cattle or other trespassers, or are destroyed by fire, generally they are bound to repair. The act in question indeed makes it the duty of the railroad company in the first instance to repair “ in all cases where fences along the line of any railroad are destroyed by fire caused by the running of trains or by the employees of any railroad,” and to do it promptly, under the penalty prescribed by the Act of March 23d 1868, Pamph. L. 424. I am careful in the use of these words “ in the first instance,” because, as will be mentioned presently, we have nothing to do with any question of ultimate responsibility for the expense of the reparation. It is true that this duty is not imposed upon the company in cases only where the destruction was caused by negligence, but absolutely without any regard to that question. Hence the contention on the part of the plaintiffs in error that the act is unconstitutional and void.

Above and beyond any question between the landholder and the railroad.company as to their respective rights and obligations, is that of the public safety. Eor that it is the duty of the legislature to provide; and for this purpose they are vested with all the legislative power of the Commonwealth. By the escape of cattle through breaches occasioned by the burning of fences, the lives of thousands of human beings travelling on the railroad may be in constant peril. Mr. Redfield says well that “ the building of fences along the line of a railway track is no doubt in regard to the security of travel to be regarded as a matter of police:” 1 Redfield 496. In the opinion of the Supreme Court of Indiana, in The New Albany and Salem Railroad Company v. Tilton, 12 Ind. 3, carrying the principle much further than we are asked to do in this case, it is said: When power is granted to organizations to prepare ways for carrying passengers from point to point with great celerity, but by the application of a propelling agent of known danger and almost irresistible power, it would appear but reasonable that a right should be lodged somewhere to maintain over such organization a supervisory control, by which they might be compelled, under penalties, to adopt appropriate means when discovered of lessening the great danger arising from the use of such agent and mode of conveyance. Such would be a police regulation — a regulation for the protection of the public.” It cannot, I think, be doubted that the legislature could compel the landholder, under penalties, promptly to repair his fences even where the destruction is caused by the negligence of the railroad company or of others, leaving him to his legal remedy to recover his damages from those ultimately responsible. If so, they must have the same right to impose that duty upon the railroad company when the destruction has been caused by their act, even without fault or negligence on their part. I do not understand the provisions of the act in question to settle the ultimate responsibility of either party. That question does not arise in this case, and it is not meant to express any opinion upon it. It may well be doubted whether it would be in the power of one legislature hy express contract to tie the hands of any succeeding legislature from the exercise of any necessary power of providing for the public safety. That would be to alienate a trust confided to them for the public good. But in this case they have never undertaken to do so. It is urged indeed that the act before us was not passed for this purpose, but as its title expresses “ to provide for cases where farmers maybe harmed by such railroad companies,” — and it is contended that this shows conclusively that it was the design of the legislature to impose this new burden upon the railroad company for the benefit of the landholders and not for the security of the travelling public. The title of an act since the first amendment of the Constitution of 1864 must now be regarded as a part of it, however it may have been before. But that is important rather upon a question of construction than of power. We cannot try the constitutionality of a legislative act by the motives and designs of the lawmakers, however plainly expressed. If the act itself is within the scope of their authority it must stand, and we are hound to make it stand if it will upon any intendment. It is its effect, not its purpose, which must determine its validity. Nothing but a clear violation of the Constitution — a clear usurpation of power prohibited — will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void.

Judgment affirmed.


author: Williams, J.

text:
    Chase versus The Petroleum Bank.
    1. Obase having balances in a bank requested them to pay a debt for him, agreeing that if they would do so, his balances should be applied to the repayment. The bank paid the debt and Chase gave his note for the amount; it being agreed that the balances should be adjusted in a short time. Before they were adjusted the bank failed and went into the hands of a receiver. Held, that there had been an appropriation of the balances to the note, and that in a suit by the bank on the note the balances were to be deducted.
    2. The transaction was a contract, the appropriation of the balances being the consideration for the advance.
    3. After the advance by the bank, Chase could not have checked out the balances.
    4. The balances could not have been attached by Chase’s creditors.
    October 18th 1870.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Qraivford county: No. 157, to October and November Term 1870.
    In an action of debt in the Court of Common Pleas of Crawford county, of November 1866, between tbe Petroleum Bank to tbe use of F. W. Ames, receiver, plaintiff, and Joseph L. Chase, defendant, on a note for $800, the jury found tbe following special verdict March 29th 1870 :—
    “ On or about tbe 22d day of March 1866, tbe defendant called upon John R. Madison, the cashier and general discount agent of the Petroleum Bank, and requested him to pay the premium on the life insurance policies of the said Chase to the amount of $800, Madison and Chase agreeing that certain, balances then due from the bank to said Joseph L. Chase, E. B. Chase & Co., of which firm Joseph L. Chase was a membei’, and Ida B. Chase, daughter of said Joseph L. Chase, for whom he acted, should he applied to the payment of the said $800.
    “ That said bank did pay the said $800 for the said Chase who, on the 23d day of March 1866, gave his note to the said bank for the sum so paid by it for premiums on said insurance policies. That at the time of this transaction the said Joseph L. Chase was sick, and the balances due the aforesaid parties respectively were to be adjusted, and the matter closed up as soon as he was well enough to be again about his business. That before the said Chase got well, or any actual application of these balances was made to said notes, to wit, on the 28th day of March 1866, the bank failed and never resumed business. That no cheeks for the balances due the several parties before named were ever made by them or any of them in favor of the bank because of the failure of said bank before the recovery of said Chase from his illness.
    “ That E. B. Chase, of the firm of E. B. Chase & Co., agreed and was willing that the balance due the firm should be applied to said note as agreed between the cashier and Joseph L. Chase. That after the failure of the bank the defendants called upon the sa[d Madison several times to apply the balances aforesaid to the said notes, which he declined to do because of the failure of said bank. That the said E. W. Ames is the duly appointed receiver of said bank.
    “ If the court should be of opinion that upon the facts as found by us, the defendant is entitled to have the aforesaid balances deducted from the amount of said notes, we find for the plaintiff the sum of $273.54, and interest from March 23d 1866 to this day. If the court shall be of the opinion that said balances should not be deducted, we find for the plaintiff the sum of $800, and interest from the 28d of March 1866 until this day.”
    The court (Vincent, J.) entered judgment for the plaintiffs for $992.80, as of March 29th 1870.
    The defendant assigned this for error on the removal of the case to the Supreme Court.

      Douglass & McCoy, for plaintiff in error.
    — The transaction between the cashier and the defendant was an appropriation of the balances binding on both: Greenfield’s Estate, 12 Harris 232; Clemson v. Davison, 5 Binn. 392; Nesmith v. Drum, 8 W. & S. 9; Hill v. Epley, 7 Casey 331.

      F. P. Ray, for defendants in error,
    referred to Act of May 1st 1861 (Banking Companies), § 34, Pamph. L. 516, Purd. 84, pl. 35.
   The opinion of the court was delivered, January 3d 1871, by

Williams, J.

— We are of the opinion that the facts found by the special verdict show an equitable appropriation of the balances of the deposit accounts in the bank, of which the defendant had the control, to the payment of the money for which his note was given. The contract was not a mere naked agreement that the funds should be applied to the payment of a debt previously contracted ; but it was a contract under which the bank advanced the money in consideration of the defendant’s agreement that the funds should be appropriated to its payment. There was therefore a good and sufficient consideration for the defendant’s agreement that the funds should be so appropriated. After the bank had advanced the money to pay the premium on h'is- life insurance policies, the defendant had no legal right to withdraw the funds, and the bank might have withheld them. Nor were they liable to be attached by his creditors as against the bank, for they were appropriated by the agreement of the parties to the payment of the money which the bank had advanced on the defendant’s account. If, therefore, the defendant could not have withdrawn the funds, and if they were not liable to an attachment at the suit of his creditors, neither the bank nor its creditors have any right to refuse to have them deducted from the amount of the note. The right to the deduction depends upon the agreement of the parties appropriating the funds, and not upon the giving of checks for the adjustment of the balances in pursuance of the agreement. If the defendant had refused to give checks for the balances, the bank would have had the right to treat them as actually appropriated to the payment of the note. The rights of the parties under the agreement must be mutual, and therefore the defendant is entitled to insist upon the appropriation as if it had been actually made on the books of the hank. The court therefore erred in entering judgment for the amount of the note with interest. The judgment should have been entered for the balance due thereon, after deducting' the deposits in the bank which had been appropriated, by the agreement of the parties, to its payment.

And now, January 3d 1871, it is ordered and decreed that the judgment entered on the special verdict in this case be and the same is hereby reversed: and it is now ordered that judgment be entered for the plaintiff on the special verdict for the sum of $273.54, with interest thereon from the 23d of March 1866, in accordance with the finding of the jury.