text:
    The Dimes Savings Institution versus The Allentown Bank.
    1. The defendants delivered to the plaintiffs (a bank) coin to be transmitted to defendants’ agent, sold and the proceeds to be passed to the plaintiffs’ credit in a city bank. The agent wrote to the plaintiffs that he had sold the coin and deposited the proceeds in the city bank to the credit of the plaintiffs, who thereupon credited the defendants and sent them the agent’s letter on which they charged the plaintiffs. After some days it was discovered that the agent had not made the deposit and had failed. Held, that the plaintiffs were not bound by the entry of the credit and that the loss fell on the defendants.
    2. The agent some days after he said he had made the deposit, deposited his check to the plaintiffs’ credit in the city bank, which gave notice to the plaintiffs of a deposit of so much money. The check was not good. Held, neither the plaintiffs nor the city bank were bound by the credit.
    3. The check was not money and the agent had no right to substitute his check for money.
    4. Nothing but an actual and bonff fide deposit of money to the plaintiffs’ credit could charge them.
    5. The defendants were responsible for the acts of their agent, as if they had deposited the worthless check.
    6. Making numerous assignments of error criticised.
    March 23d 1870.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lehigh county: No. 79, to January Term 1870.
    This was an action of assumpsit by The Allentown Bank against The Dimes Savings Institution, commenced August 3d 1861. The suit was for a balance of $524.64, an amount alleged to be overdrawn by the defendants in their account with the plaintiffs December 10th 1860.
    The defendants alleged that they should have been credited with the proceeds of $487 in coin, delivered on that day to' the plaintiffs.
    The plaintiffs gave evidence that before that day Charles S. Bush, the cashier of the defendants, upon his inquiry as to where he could sell specie, had received from another cashier the name of Cronise & Co., who were specie and bullion dealers in Philadelphia.
    Also, by W. J. Hoxworth, their teller, that on the 10th of December Mr. Bush delivered to him a bag of coin, tied up, sealed and labelled with the name “Cronise & Co.,” their place of business and amount marked on it; he asked no credit, memorandum or receipt, but said, “Mr. Cooper (the cashier) knows how to dispose of it.” It was put into the bank vault and sent to Philadelphia by express the next day. This receipt was taken from the express agent:—
    “ Received from the Allentown Bank one bag of specie, marked Cronise & Co., 40 S. 3d Street, Philadelphia, Pa., Four Hundred and Eighty-seven Dollars. To be forwarded to its destination.”
    The coin was not credited on the bank-books, nor entered in the pass-book.
    Cooper testified, that his attention had been brought to the bag of coin by the teller, who said Bush had told him, he, witness would know what to do with it; witness wrote to Cronise & Co. by mail; the plaintiffs never did any business with Cronise & Co. On the 6th of December, at the defendants’ place of business, Bush, in conversation with witness, recognised the fact that the defendants had overdrawn their account, and said it would be made good in a few days; that they had some old coin to sell, and that they would send it to Cronise & Co.; witness said plaintiffs had an arrangement with the express company for carrying packages of money, and suggested that defendants might send the coin through the plaintiffs; that the proceeds might be deposited to plaintiffs’ credit “ below,” and defendants get credit with plaintiffs; Bush assented, and witness told him to pack the coin, direct it, hand it to plaintiffs, and they would send it by express ; $492.72, the proceeds of the coin, was put to defendants’ credit, on plaintiffs’ books, December 13th 1860.
    The plaintiffs gave in evidence the following papers, produced by defendants on call: — ■
    Letter, dated December 12th 1860.
    “ Cash. Allentown Bank.
    “Dear Sir: We have received your favor of 11 with enclosure as stated to your credit with Manf. & Mchs. Bk.
    Specie $493.22
    Yours Cronise & Co.”
    Statement by Cronise & Co., of sales of the specie, footing up $493.22. At the bottom of this statement there was in Cooper’s writing,—
    “Dimes Savings Bank. Your credit, . $493.22
    Less Express, ..... 60
    Dec. 13 1860. -$492.72”
    Cooper testified that he received these papers December 13th 1860, and after making the note at the bottom, sent them immediately to Bush, and gave credit to the defendants on the plaintiff’s books. Witness testified that his recollection was “ distinct and clear, so far as he gave it.”
    M. W. Woodward, cashier of Manufacturers’ and Mechanics’ Bank, testified that Cronise & Co. made no deposit in that bank December 12th 1860. The plaintiffs here rested.
    The defendants then gave in evidence the following letter, produced by plaintiffs on call:—

      “ Manufacturers’ and Mechanics’ Bank, Philadelphia, December 22d 1860.
    “ C. W. Cooper, Cashier:
    “Dear Sir — Cronise & Co. have deposited to your credit $493.22. M. W. Woodward, Cashier,”
    and rested.
    The plaintiffs in rebuttal recalled Woodward, who testified that the deposit of December 22d was a check of Cronise & Co. on the Farmers’ and Mechanics’ Bank, which was' not paid, and had been protested; that the credit on their books was “ Allentown Bank, $493.22.” All checks are entered, whether paid or not; if not paid, are returned to the party credited. The plaintiffs rested.
    The defendants called Woodward, who testified: In December 1860, the notes of country banks were coming in rapidly for redemption. ,
    Charles S. Bush testified: “I was cashier of defendants in December 1860; we commenced business on the 1st November preceding; I went to the Allentown Bank to get the direction of Cronise & Co.; Mr. Dillinger (an officer of the bank) gave me a circular price-list of that firm containing quotations of the value of old coin with their address printed on; I mentioned to Mr. Dillinger that we had old coin to send to Philadelphia, to sell; a few days later, being again at the Allentown Bank, Mr. Cooper, cashier, proposed sending it, as it would be less expense; I consented to that; he said,put it in a bag and mark the direction on it; I took the bag to the Allentown Bank December 10th 1860, handed it to Mr. Hoxworth, the teller, saying, ‘ Mr. Cooper knows about it;’ three days after this I received Cronise & Co.’s statement of the proceeds of coin from Mr. Cooper through the post-office, with a pencil-note at bottom advising credit; had no further conversation with any officer of plaintiff about this coin, to my recollection; nothing that I recollect was said about the M. & M. Bank; nothing was said about any other bank in Philadelphia; nothing was said as to what was to be done with the proceeds of the coin in Philadelphia; nothing was said about the Allentown Bank getting credit in Philadelphia; I did not give the Allentown Bank authority to intrust the coin with Cronise & Co.; we had an arrangement with the Allentown Bank by which we had a right to overdraw our account not exceeding $5000; and in return we were to give them our specie funds and specie-paying banknotes and other exchange; Dillinger mentioned to me, when I was at their bank, that Cooper was in Philadelphia, that their notes were running in fast; said they were hard pressed for exchange; the defendants had no account with any bank in Philadelphia; I have no recollection of meeting Mr. Cooper at our banking-room December 6th 18,60; I have heard his testimony; I do not recollect having had such a conversation at our hank or elsewhere.; it was not my habit of being at our bank in the evening; the Savings Bank was closed in the evening.”
    On cross-examination, witness said: * * * «j had made up my mind to send it to Cronise & Co. before Cooper told me to put their address on it; I charged the Allentown Bank with it after receiving the Cronise & Co. statement with Cooper’s note of credit enclosed through the post-office; when I took it there I knew what was to be -done with it; Mr. Cooper also knew what was to be done with it; he knew the coin was to be sold by us to Cronise & Co., and proposed to send it; nothing was said about what was to be done with the proceeds of the sale; I knew or expected what would be done with the proceeds, because we had overdrawn our account with plaintiff; when I received the detailed statement from Mr. Cooper I did not make any objection to the disposition of the proceeds.”
    On re-examination he said: “Before and up to the time of depositing the bag in the Allentown Bank I did not know what the Allentown Bank intended to do with the proceeds. Prior to my putting the bag in bank or at the time, nothing was said about plaintiffs writing to Cronise & Co.; I resigned |as cashier in the spring of 1864. I knew it was to go to Cronise & Co., and that we were to have credit for it at the Allentown Bank after it was sold.”
    They gave evidence also that Cronise failed,' December 22d 1860; that they transacted business till 2 o’clock that day, kept their deposits in the Farmers’ and Mechanics’ Bank. Also the following letters:—
    “ Allentown Bank,
    “ Allentown, Pa., Dec. 10th 1860.
    “ Messrs. Cronise & Co. :
    “ Per express to-morrow $487 coin. Allow best rates; report proceeds, and deposit the same to our credit with the Manufacturers’ and Mechanics’ Bank, Philadelphia. Yours,
    “Chas. W. Cooper, Cashier.”
    “ Allentown Bank,
    “ Allentown, Pa., Dec. 29th 1860.
    “ M. W. Woodward, Esq., Cashier.
    “Dear Sir: Yours of the 27th and 28th with enclosures are received. The Dimes Savings Bank objects to paying Cronise & Co. Yery respectfully, yours, &c.,
    “ Chas. W. Cooper, Cashier.”
    There was much additional evidence on both sides, including correspondence between the plaintiffs and Manufacturers’ and Mechanics’ Bank after the transaction, in which no notice had been taken of the fact that there had been no deposit.

      . The plaintiffs and defendants submitted points which were categorically answered by the court, but are substantially answered in the charge in which Longaker, P. J., said:—
    * * “ Construing the opinion of the Supreme Court, delivered by Agnew, J., on a hearing of this case on appeal to that court, we say to you, that under the law controlling this case, the question of negligence by the plaintiff, or the liability of the Manufacturers’ and Mechanics’ Bank to account to the plaintiff, does not arise. It is a question of agency as regards Cronise & Co.
    “ This agency will be determined by finding whether Cronise & Co. were the agents of the Dimes Savings Bank for the purchase of the coin, and to account for its proceeds ? If they were not, then they must have been the agents of the Allentown Bank.
    “ This litigation arises from the fact that Cronise & Co. failed to account for the proceeds of the coin purchased by them. The loss resulting from their bad faith and fraud must be visited upon the party who employed them, and who intrusted to them the disposition of the proceeds of the sale of the coin.
    “ In inquiring as to the scope of this agency, it will be perceived, that two acts to be done were intrusted to Cronise & Co.: the purchase of the coin, and the placing of the proceeds thereof in the Manufacturers’ and Mechanics’ Bank to the credit of the Allentown Bank. Were they then the agents of the Dimes Savings Bank for both or either of these purposes ? If only for the first, the purchase, did the loss arise from that agency ? or has the whole loss been occasioned by a failure to deposit the proceeds in the Manufacturers’ and Mechanics’ Bank ?
    “ It is alleged by the plaintiff that Cronise & Co. were the agents of the Dimes Savings Bank for both purchase and subsequent deposit. As this is a fact asserted affirmatively by the plaintiff, it must be made to appear by proof stronger than that of the defendants that this allegation of the plaintiff is true. Can you then find this fact in favor of the plaintiff? If not, were Cronise & Co. the agents of the Allentown Bank ?
    “ The plaintiff alleges that the coin was sent by them at the request and by the authority of the Dimes Savings Bank, to be sold to Cronise & Co. and the proceeds of sale to be deposited by them — Cronise & Co. — as the agents of the defendant, and that the plaintiff was to acquire no property in the proceeds of the coin until the same should be deposited with the Manufacturers’ and Mechanics’ Bank. Is this allegation sustained by the weight of the testimony ? It is a fact for your finding.”
    The judge referred to the evidence and proceeded:—
    “ These facts, in a general way, present the most important points of the testimony as regards the history of the-sale of the coin, and the subsequent disposition of the proceeds thereof, and its consequent loss. There then was no deposit made December 12th 1860, as was supposed from the statements contained in the •letter of Oronise & Oo. under that date; or in other words, did the plaintiff and defendant understand this letter to mean that such a deposit had been made, and acting under it make the proper entries of credit and debit in their books ? These entries, if so made, would be a mutual mistake, caused by the had faith or fraud of Oronise & Co. Whose agent then were Oronise & Co. when this fraud was committed ? The solution of this important question brings you to a careful consideration of the testimony bearing upon the question of agency.
    “ What light does the testimony of Mr. Hoxworth afford you ? What weight will you attach to the fact that the coin was counted, sealed and addressed when delivered at the bank of the plaintiff, with the direction from Mr. Bush, that Mr. Cooper will know what to do with it? No credit was then given and none asked. You will also ask yourselves what bearing, if any, has the fact that Mr. Bush before the delivery of the coin made inquiry of Squire Saeger for coin brokers in Philadelphia, and that Cronise & Co. were recommended.
    “ You have next in its order, the testimony of Mr. Cooper, and amongst other things he says* * *
    The judge stated Mr. Cooper’s testimony.
    “ If you believe this testimony and you further find that it has not been neutralized or negatived by testimony equally as strong, does it satisfy you of itself, and as weighed with the other testimony, that the agreement between Mr. Bush and Mr. Cooper was, that the coin and its proceeds should remain the' property of the Dimes Savings Bank until it should be deposited in some Philadelphia bank to the credit of the Allentown Bank, and that when that credit was thus given, then the defendant was to have a credit for it with the' Allentown Bank ? If you are so satisfied, then the plaintiff will be entitled to recover.” * * *
    “ Is this testimony reliable ? Has Mr. Cooper forgotten ? Is it consistent with the transactions, and corroborated by the other testimony ? and does it aid you in determining the scope of the agency of Cronise & Co., as regards the purchase of the coin, and the disposition of the proceeds to be made by them.
    “ While bearing upon this you have the testimony of the defendant and especially the testimony of Mr. Bush, which must be considered by you.”
    Here Mr. Bush’s testimony was read.
    * * * “ While in many particulars the testimony of Mr. Cooper and Mr. Bush agrees, there are upon important points wide discrepancies. Both cannot he right, and where there is a conflict one must be wrong. It is your duty to reconcile their statements; if you cannot do that you must find who has the best recollection, and who is supported by corroborating circumstances and testimony.
    “ You will observe that Mr. Bush says he has no recollection of this conversation, while Mr. Cooper swears he has a recollection of it. The testimony of Mr. Cooper is positive, and if you believe him, it is stronger than the negative testimony of Mr. Bush. Could then this conversation have taken place and he now forgotten by Mr. Bush? If not forgotten — it could not have taken place. Is he as likely to recollect it as Mr. Cooper ? You have had both witnesses before you, and you may judge from their manner, their appearance, and their relative ages, who is likely to be right under the surroundings of this case.
    “ Where a witness swears positively to a fact as being within his recollection, and you reject his testimony, by so doing you must conclude that he is unworthy of belief. In other words, if you do not conclude that Mr. Cooper has also forgotten by the lapse of time as to what was said, to reject his testimony will be equivalent to find that he has sworn falsely. No charge of perjury has been made against him, nor is his credibility attacked by the direct testimony of witnesses that he is unworthy of belief. Is he mistaken ? He swears he has a recollection of what he has testified to.
    “ If then you give full credit to his testimony, considering at the same time the surrounding circumstances of the case, and then contrasting all the testimony of the defendant, and other circumstances in his favor, does it satisfy you that Cronise & Co. were the chosen agents of the defendant to purchase the coin, and also to be intrusted with the proceeds thereof to be deposited with the Manufacturers’ and Mechanics’ Bank, or some other Philadelphia bank, and that the plaintiff acquired no interest in, or right to the proceeds until the deposit was so made ? If you are so satisfied, then the plaintiff will be entitled to your verdict. Or do you find that the plaintiff was not only an agent of the defendant for the transmission of the coin, but also did assume the risk of the appropriation of the proceeds, or that he assumed the control of the proceeds without the authority of the defendant ? If you so find, the defendant will be entitled to your verdict. Or do you find that the plaintiff acquired the absolute right to the coin as soon as sold, and that Cronise & Co. were the chosen agents of the Allentown Bank to make the deposit with the Manufacturers’ and Mechanics’ Bank ? If you do, your verdict will be for the defendant.”
    The verdict was for the plaintiffs for $751.56.
    The defendants took a writ of error,' and in twenty-six specifications assigned the charge and the answers to the points, for error.

      J. H. Oliver and J. D. Stiles, for plaintiffs in error.
    The court so commented on and compared the testimony of Cooper and Bush as to mislead the jury; this was error: Lackawanna Railroad v. Chenewith, 2 P. F. Smith 382; Heilbruner v. Wayte, 1 Id. 259; Parker v. Donaldson, 6 W. & S. 132; Keeler v. Vantuyle, 6 Barr 250. The plaintiffs could not relieve themselves of the credit by proof of fraud or mutual mistake: Vantries v. Richey, 8 W. & S. 87; Levy v. U. S. Bank, 4 Dall. 236; Wetherill v. Bank, 1 Miles 399. There was laches in the plaintiffs in not making inquiry between the 13th and 22d of December, or giving notice and acting so as to prevent the consummation of the fraud; the liability is therefore on them: Brown v. Arrott, 6 W. & S. 402; Wingate v. Bank, 10 Barr 104; Harvey v. Turner, 4 Rawle 229; Devall v. Burbridge, 4 W. & S. 305; Clark v. Bank of Wheeling, 5 Harris 322. The credit given to plaintiffs and by them to defendants was payment: Bayard v. Shunk, 1 W. & S. 92; Irvine v. Hanlin, 10 S. & R. 219; 1 Pars. on Cont. 76, 77, 218, 220; Byles on Bills 161, 267; Grant on Banking 97, 293.

      S. A. Bridges and R. E. Wright, for defendants in error,
    cited Mechanics’ Bank v. Earp, 4 Rawle 384.
   The opinion of the court was delivered, May 5th 1870, by

Agnew, J.

We have in this case twenty-six errors assigned to a single charge of ordinary length, which is as much as to say the judge did not open his' mouth unless to commit an error. This skill at multiplication is accomplished by dividing the charge into short paragraphs and assigning error to each. The injustice of thus manipulating a charge by piecemeal is obvious; while a still more serious injury is done to the cause by indiscriminate allegations of error and useless discussion. They distract our minds by diverting them to consider matters of no moment, and weaken the strong points, if any, by heaping upon them those that are feeble. Upon a writ of error it is much better to consider well the positions which seem to be fairly tenable, and to present them alone. Then the argument spends its concentrated force upon that which commands consideration, and the attention of the judges is not diverted to that which is immaterial. In this way real error is apt to be detected; while in the other, the mind, wearied by unimportant exceptions and inconclusive discussion, is more likely to overlook material errors. We commend these remarks to those who practice before us.

In the present case, after a careful examination of the charge of the learned judge below, as a whole, we can say confidently there were a very few questions in the case, and they were presented fairly. In saying this we dispose of nearly all of the assignments of error. There was one primary and leading question of fact which, found by the jury, solved the case. Were Cronise & Co. the agents of the plaintiffs or of the defendants in converting the coin sent to them and depositing the proceeds in bank? This question was fairly submitted to the jury. We do not discover that one-sidedness in presenting the facts, of which the plaintiffs in error complain. According to the charge returned to us, the judge read the whole of Mr. Bush’s testimony to the jury. As to the material points of difference between him and Mr. Cooper, his testimony was negative in its true character, while that of Mr. Cooper was positive. This was a transaction of nearly nine years standing, and therefore depended on distinctness of memory. What Mr. Cooper stated he remembers positively and clearly; while all that can be said of Mr. Bush’s statement is, that he does not remember the facts stated by Cooper, and yet it is possible they existed. The recollection of Coo'per is sustained by the inherent probability of the thing itself. Bush had been-making inquiries for a suitable broker to send coin to for' conversion, and made inquiry of Cooper also. He took the coin, tied and sealed up in a bag, after business hours, labelled with the name and place of business of Cronise & Co., handed it over to the teller at the Allentown Bank, asking no credit, memorandum or receipt, and merely saying that Mr. Cooper knew what to do with it. The money was neither counted nor credited by the Allentown Bank, and not charged by Bush. The Allentown Bank needed funds to meet their circulation in the city of Philadelphia, and the Dimes Bank had overdrawn its account, while Mr. Bush himself admits that he expected (if he did not express it) the proceeds of the coin would be carried to the credit of the Dimes Bank in its account with the Allentown Bank. What difficulty was there, therefore, in believing the positive recollection of Mr. Cooper that he suggested to Bush that he might take advantage of Cooper’s arrangement with the express company to send the coin to Cronise & Co., and that the proceeds might be deposited to the credit of the Allentown Bank in Philadelphia, and the Dimes Bank get credit in the Allentown Bank, and that Bush consented to this suggestion ? With all these strong corroborating facts, we are unable to discover any unfairness on the part of the judge in presenting the testimony to the jury.

The fact being established that Cronise & Co. were the agents of the plaintiffs to convert the coin and make the deposit to the credit of the Allentown Bank in the Manufacturers’ and Mechanics’ Bank, the other questions are solved by it. The credit given by the Allentown Bank, on the 13th of December 1860, for the proceeds of the coin ($493.22) was founded on the letter of the defendants’ own agent. The defendants themselves were misled by the same letter. The credit and charge were therefore entered by each respectively, through a common mistake, whether that arose from a misconstruction of the terms of the letter, or a false statement by Cronise & Co. Whether Cronise & Co. meant by that letter that they had deposited'the proceeds in the Manufacturers’ and Mechanics’ Bank, or that. they would do so, is immaterial — it is clear they never did so, and this was bad faith and fraudulent conduct on their part. The judge was therefore justified in characterizing it as bad’faith and fraud. It was their duty to deposit the proceeds of the coin on the next day, but they did not. When they professed to make the deposit, it was by their own check, when they knew they were insolvent, and not in money, as good faith required. They failed on the same day they drew the check, and whether they had funds in the Farmers’ and Mechanics’ Bank is not material, as they had violated their trust before and up to the day they failed. Their check was not money, and being the agents of the defendants who had sent them money in fact, they had no right to substitute their own check in place of the money. The Manufacturers’ and Mechanics’ Bank had no authority from the plaintiffs to receive the check; and no authority being given to deposit it, either by the plaintiffs or the defendants, the check was neither a payment nor a deposit, as against the plaintiffs. Cronise & Co. thus being the agents of the defendants, it is plain that nothing less than an actual and boná fide deposit of the money to the credit of the plaintiffs can charge them with the receipt of the proceeds of the coin. The reason is obvious — until such a deposit was made, the plaintiffs had no part in the transaction, and could be in noyise implicated in the affairs of Cronise & Co. with the Manufacturers’ and Mechanics’ Bank. If such a deposit were not made, it was the fault of the defendants, for it was the breach of duty of their own agent. The case is no better than if the defendants themselves had deposited a worthless check in place of money which they agreed to deposit to the credit of the plaintiffs. The plaintiffs having given no authority to the Manufacturers’ and Mechanics’ Bank to receive the check, were not bound, after the withdrawal of the credit, to abide the result of a litigation with the bank about the cheek. The simple fact was that no money was deposited to the credit of the plaintiffs, and they gave no credit on the faith of the check, and recognised it in no way. The credit they did give was really given nine days before, upon the false or misapprehended letter of the agent that the money had been deposited. But the fact of a deposit was untrue and the credit unfounded. Nor can the plaintiffs be implicated in the delay of these nine or ten days to inform the defendants that the correspondence of the Manufacturers’ and Mechanics’ Bank did not disclose the credit. Cronise & Co. being the agents of the defendants, the plaintiffs cannot be condemned because they relied on their information. During this short interval between the 13th and 22d of December there was nothing to excite suspicion, from the omission of the bank to notify them, to cause the plaintiffs to be very prompt, or to cast upon them a loss caused by the bad faith of the agent of the defendants. The failure of Cronise & Co. was unknown to them, and no good reason, till that became known, existed to cause a doubt of their good faith.

Upon the whole, we are not able to perceive any error in the charge, and the judgment is therefore affirmed.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Knerr versus Hoffman et al.

    1. Assumpsit will lie for a balance struck between partners.
    2. If a balance be not struck, account render is the remedy unless the partnership be a single transaction.
    3. “Debt,” in the Act of June 16th 1836, § 35 (Attachment Execution), will not extend to balance on an unsettled partnership account.
    4. Neither the Act of April 4th 1831, g 1, nor the Act of October 13th 1840, $ 18 (Account Bender), have any application to a proceeding by attachment.
    5. The defendant in foreign attachment in account render is not necessarily a party in the scire facias against the garnishee, nor is a non-resident defendant partner in an attachment execution.
    6. A creditor of a partner may sell all his interest in the partnership, and the sheriff's vendee can proceed by account render or bill in equity against the other partner.
    7. A balance struck between partners may be attached without an express promise to pay it.
    8. It is error to reserve a question of the competency of a witness.
    9. Strock v. Little, 9 Wright 416, remarked on.
    March 23d 1870.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.. Read, J. at Nisi Prius.
    Error to the Court of Common Pleas of Lehigh county: No. 150, of January Term 1870.
    This was an attachment execution, issued December 2d 1865, by John L. Hoffman and William H. Hoffman, trading as J. L. & W. H. Hoffman, against Abraham Diefenderfer, in which Edward H. Knerr was garnishee. The judgment of the plaintiffs against Diefenderfer was for $378.33, recovered February 16th 1863. The garnishee pleaded “ nulla Iona.” ■

    The plaintiffs offered Diefenderfer as a witness; he was objected to on the ground of interest. The plaintiffs then executed a release to him, reciting that he had been objected to on the ground of interest, and for the purpose of making him competent they agreed that they would not issue any writ to revive the judgment against him, nor any process to collect it, and would not seek to recover it except by the attachment then trying against Knerr, and that when that should be terminated in any way, they would satisfy the judgment against Diefenderfer.
    The garnishee still objecting, the court admitted the witness, and sealed a bill of exceptions.
    The witness testified that Knerr, who was mining ore for the Carbon Iron Company, entered into an agreement with him to assist him in mining. Knerr agreed to buy horses and carts, and give witness half the profits and two dollars per day. Witness had sole charge of raising the ore; he was to attend to the work and Knerr to the money; Knerr occasionally paid witness money; witness stated that after paying expenses, &c., there was a balance of $1418.36, of which he was entitled to one-half, from which some deductions were to be made, and the balance due him was $618.36. There did not appear to have been any settlement of the partnership accounts. After this attachment had been issued, Knerr and witness went to a justice of the peace for advice. Kn,err said, “ there was an attachment laid on my money he had there; the justice asked how much it was; Knerr said, some $620; Knerr said it was partnership we raised the ore in.” There was other evidence that Knerr and Diefenderfer were in partnership, and also as to the condition of their accounts.
    The defendant submitted these points:—
    1. An equitable demand which Diefenderfer might have against Knerr, the garnishee, is not the subject of attachment.
    3. The release of plaintiffs to Diefenderfer is an absolute discharge and satisfaction of the judgment against him, and the plaintiffs have no judgment upon which a recovery can be founded.
    5. There is no evidence of any sum or amount in the hands of Knerr, which is the subject of attachment, and the verdict should be for the garnishee, Knerr.
    6. Under the evidence in the cause Knerr, garnishee, is entitled to a verdict.
    The court (Longaker, P. J.) reserved the 1st, 3d and 5th points “ on the finding of a special verdict,” and denied the 6th point. The judge also reserved the question whether Diefenderfer was a competent witness.
    The verdict was: “ The jury do say they find the sum of five hundred and twenty dollars due Abraham Diefenderfer by Edward Knerr, garnishee of said Abraham Diefenderfer, not wages.”
    The defendant moved for a new trial, and the plaintiffs moved for judgment against Knerr for $520.
    On the 1st of November 1869, Judge Longaker delivered the opinion of the court, holding Diefenderfer to be a competent witness, made this order:—
    “ The 1st, 2d and 5th points of the defendant, which were reserved as part of the special verdict, are now answered in the negative.

      “ The reasons filed in behalf of a new trial are overruled, and the motion of the plaintiff for judgment for $520 and costs upon the special verdict, is made absolute.”
    The garnishee took out a writ of error.
    He assigned for error 1st, 2d, 8d and 5th, the answers to his points; 4th, reserving the question of the competency of Diefenderfer, “ because, if decided to be incompetent, judgment non obstante veredicto cannot be entered.” 6th, admitting the testimony of Diefenderfer; 7th, 8th and 9 th, portions of the opinion of the court on the reserved questions.

      J. D. Stiles, for plaintiff in error.
    As to Diefenderfer’s competency: Fitzsimmons’s Appeal, 4 Barr 248; Wilkinson v. Turnpike Co., 6 Id. 399. As to the reservation: Wilde v. Trainor, 9 P. F. Smith 439; Clark v. Wilder, 1 Casey 314; Irwin v. Wickersham, Id. 316; Wilson v. Steamboat Tuscarora, Id. 317; Winchester v. Bennett, 4 P. F. Smith 510.

      Erdman and Oliver, for defendants in error.
    What was due Diefenderfer was not wages: Heebner v. Chave, 5 Barr 115; Hipple v. Brooke, 13 Wright 147. The balance due Diefenderfer was subject to attachment, although there was a partnership: McCarty v. Emlen, 2 Dall. 277; Morgan v. Watmough, 5 Whart. 125; Ins. Co. v. Field, 9 Wright 129; Strock v. Little, Id. 416. As to Diefenderfer’s competency: Evans v. Sexton, 2 Philada. R. 300.
   The opinion of the court was delivered, March 31st 1870, by

Sharswood, J.

The nine specifications of error may be most advantageously considered by classifying them.

The 1st, 3d and 5th raise the question whether the claim or demand by Diefenderfer, the original defendant, against Knerr, was the subject of an attachment in execution under the Act of Assembly of June 16th 1836, § 35, Pamph. L. 767. According to the testimony of Diefenderfer himself, who was examined as a witness for the execution-creditor, he was engaged by Knerr to superintend the raising of ore for “ half the profits and two dollars a day.” By the 5th section of the Act of April 15th 1845, Pamph. L. 460, it is provided “that the wages of any laborers or the salary of any person in public or private employment, shall not be liable to attachment in the hands of the employer.” As wages or salary cannot be attached, if anything was the subject of the process it was the balance of a partnership settlement. If such a balance be struck between the partners, assumpsit will lie; but if not, account render is the only proper form of action, unless indeed it be a partnership in one single transaction: Ozeas v. Johnson, 1 Binney 191; Andrews v. Allen, 9 S. & R. 241; Van Amringe v. Ellmaker, 4 Barr 281; Brubaker v. Johnson, 3 Penna. R. 295; Galbreath v. Moore, 2 Watts 86. Now although the word “ debt” in the Act of 1836 has received a very wide interpretation so as to include unliquidated damages in actions in form ex contractu, as in Girard Fire and Marine Insurance Co. v. Field, 9 Wright 129, yet it has never been held to extend to a claim for a balance arising upon an unsettled partnership account. The learned judge below refers to Strock v. Little, 9 Wright 416, as deciding the contrary. But it was not there held that the balance of an unsettled partnership could be attached, but merely that an action of account render could be commenced between the partners by the process of foreign attachment. When account render is the only form of action between the parties, it is very plain that there is no debt which can be attached. In such an action the first judgment is properly quod computet, and then either by auditors or by a jury in the sound discretion of the court, an account is settled, and a balance ascertained. The Act of April 4th 1831, Pamph. L. 492, invested the jury with full power to settle the account of the parties, with a necessary proviso that the court or a judge might make “ such orders upon any of the parties, in relation to books, documents or papers, as may appear to be necessary, for a full and equitable adjustment of the controversy.” After a few years’ experience it became evident that partnership accounts in nine cases out of ten could not be settled by a jury trial, and the legislature interposed by the 18th section of the Act of October 13th 1840, Pamph. L. 1841, p. 7, leaving it to the discretion of the court “to appoint auditors and proceed according to the practices and usages of the common law or direct a jury to be impannelled to settle the accounts of the parties and find the balance due the plaintiff or defendant.” Neither of these acts has any application to a proceeding by attachment. Indeed in a foreign attachment, to which this process of execution is likened, to the scire facias against the garnishee, the non-resident defendant who is the partner between whom and the garnishee the account is to be settled, is not a party; nor in an attachment of execution is the defendant, if a non-resident, necessarily a party. It would be entirely intolerable to leave a jury to settle a long and complicated partnership account of many years’ standing — occupying as it necessarily must many days or even weeks — the tribunal being altogether incompetent to that careful and full examination of books, correspondence and papers, which is required of auditors at common, law or masters in chancery. Nor is the execution-creditor without an appropriate remedy. Upon a fieri facias he can sell all the right, title and interest of the defendant in the partnership, and the sheriff’s vendee can institute either an action of account render or file a bill in equity.

But there was evidence from which the. jury might have inferred, that the account in this case had been settled between the parties, and a balance struck. Diefenderfer testified to having gone over the books with Knerr, and added, “ Knerr and I went to Squire Kemmerer. Knerr asked the squire for advice; he stated that there was an attachment laid on my money that I had there ; Kemmerer said how much it was; Knerr said some$620.” In the assignments of error, under consideration, the plaintiff complains of the refusal of the court to charge, that there was no evidence of any sum in the hands of Knerr, which was the subject of attachment; but here was evidence of an admitted balance which the jury might well have inferred had been struck between the parties, and such a balance is a debt, for which ah action of assumpsit may be maintained without proof of an express promise, as was held in Van Amringe v. Ellmaker, 4 Barr 281, and therefore properly attachable in execution. It is true, that it does not appear from the copy of the charge filed of record, that the case was put to the jury on that ground, but there is no assignment of error, which applies to that part of the charge, and we see rio reason to notice it, where substantial justice has been ■done by the verdict.

The 2d and 6th assignments, relate to the effect of the instrument of April 12th 1869, executed by the plaintiffs, under seal, and given in evidence, upon the competency of Diefenderfer as a witness, and upon the right of recovery. It was a covenant to.look only to the pending attachment for payment of the judgment, and upon its final determination to satisfy the same. It was not an absolute release, and could not be set up in this proceeding as such, though it might in any other. It was in no sense an assignment of the claim ■ by Diefenderfer; for the failure of the plaintiff to recover in the attachment, would have been no bar to an action or bill by him against Knerr. Under this covenant Diefenderfer stood indifferent between the parties; indeed, he was testifying against his own interest, for a judgment for the plaintiffs would have been a bar at least pro tanto to an action by him against the garnishee. These assignments of error are therefore not sustained.

The 7th, 8th and 9th assignments are to portions of the opinion of the court delivered on entering judgment on the special verdict, and the reserved points. "We have before us only the question whether that judgment was right, not whether the reasons for it -were sound. Many a right decision has been made for wrong reasons. What is termed the special verdict, was that the jury found the sum due by the garnishee — adding “notwages.” This was merely surplusage. It may sometimes be useful for a jury to indicate how they find particular facts,-but in this instance it was unnecessary, as they could not, under the instructions they received, have found for the plaintiff at all, unless they had found that the debt, attached was not for wages. The judgment, upon the points properly reserved, was, as we have seen, right.

The only remaining assignment is the 4th, that the court erred in reserving the question^of the competency of Diefenderfer as a, witness. This was undoubtedly an. error, but a harmless one, for the judgment is not entered non obstante veredicto. That judgment clearly could not have been entered upon such a reservation, unless indeed the testimony of the witness objected to had been the only evidence in the cause.

Judgment affirmed.


text:
    Spackman versus Ott.
    1. Ripka conveyed a ground-rent to Winpenny, of which he informed Ogle but did not record his deed ; afterwards Ripka mortgaged the ground-rent to Ogle in trust to pay his creditors who were named. Winpenny received the rent for some years, Ogle died; Olay was substituted and received notice of the deed. He sold the ground-rent under the mortgage and purchased it at the sheriff’s sale, the deed being still unrecorded. Olay had no better title after the sheriff’s sale than before.
    2. The trustee and creditors under the mortgage were in the same situation as an assignee and creditors under a voluntary assignment.
    3. Such assignee and creditors are not purchasers for value within the Recording Act of March 18th 1775.
    4. Such assignee is the representative of the debtor, enjoying his rights only and not representing the creditors.
    5. Winpenny being a purchaser for value, his title was not postponed to that under the mortgage.
    March 24th 1870.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Philadelphia: No. 210, to January Term 1870.
    This was an action of covenant on a ground-rent deed by Samuel Spackman against Reuben Ott, commenced August 5th 1865. The case was tried before Pierce, J., a verdict found for the plaintiff, and a new trial granted, which was tried, October 11th 1869, before Allison, P. J.
    On the 1st of November 1847, Joseph Ripka conveyed to the defendant certain real estate reserving a ground-rent of $80 per annum. On the 20th of November 1857, Ripka executed a mortgage to George Shields and Henry K. B. Ogle, trustees, to secure two bonds conditioned to pay in one year a large number of sums of money which Ripka owed to different persons, his creditors, as shown by schedules annexed to the bonds respectively; part of the mortgaged property was the ground-rent of the defendant; the mortgage was recorded on the day of its date. Shields, one of the trustees, having died, H. Gr. Clay was appointed in his place; Ogle also died in January 1864. Proceedings were after-wards commenced on the mortgage, and the ground-rent was sold on a levari facias to Samuel Spackman, the plaintiff, for $650, and the sheriff’s deed acknowledged January 14th 1865.
    The plaintiff having given the foregoing evidence, closed. The defendant then offered in evidence a deed for the ground-rent to Samuel Winpenny, dated November 5th 1857 and recorded April 3d 1867, to be followed by proof of notice of its existence to Shields and Ogle, the original trustees, prior to the deed of trust and subsequently to Clay, the present trustee, before the sheriff’s sale, and that the plaintiff bought as agent for the trustee. The plaintiff objected to the offer, it was admitted, and a bill of exceptions sealed. The plaintiff then read the deed; also one from S. Winpenny to B. Winpenny, trustee, for the same ground-rent dated March 19th March 1863 and recorded the 27th of the same month. S. Winpenny testified that Ripka borrowed $1500 from him under the promise of repayment in two weeks; at the expiration of the time, he said he could not raise the money, but said he had a ground-rent of $1300 or $1400 which he would give the witness and would pay him the balance in a few days; he said he wished to secure him; he paid the difference between the ground-rent and $1500. On the morning of the transfer of the ground-rent, witness told Shields and Ogle of the conveyance; Ripka, while he lived, collected the rent and paid witness; witness did not know of the sheriff’s sale till after it took place, when Spackman gave notice to the ground tenant not to pay; witness had held the ground-rent six or seven years, but knew nothing of the mortgage. Ripka requested him not to record the deed. There was other evidence as to the notice to Ogle.
    W. A. Allison, a creditor under the mortgage, testified that after the trust mortgage was made, he being one of the largest creditors, had frequent conversations with Ogle; the Ott ground-rent being referred to, Ogle said it did not belong to the trust, it had been put there in the confusion of drawing the mortgage. After Clay came into the trust, and before the sheriff’s sale, he told witness that the ground-rent was claimed by Winpenny, who. had a deed for it not recorded ; that as it was doubtful whether it belonged to the trust he had had searches made and could find nothing of it. He said he got his information from Ogle, the mortgage had been given to secure wages and borrowed money. The defendant proved that the plaintiff bought as agent for the trustees. The plaintiff in rebuttal called Clay who testified that he had no recollection of notice of Winpenny’s deed before the sheriff’s sale, but had after the sale when he was making efforts to sell the ground-rent; he then made searches.
    The plaintiff requested the court to charge the jury:—

      1. That there is no evidence of actual notice of the unrecorded deed from Ripka to Winpenny, being given to the trustees for creditors.
    2. That the creditors, for whose benefit the mortgage was made to Shields and Ogle, are regarded as bond fide purchasers for valuable consideration, and cannot therefore be bound by any unrecorded assignment of the ground-rent, even though made prior to the date of the mortgage under which they claim.
    3. That actual notice must be proved to have been given to the creditors for whose benefit the mortgage was made; and there being no evidence of such notice, the plaintiff is entitled to recover.
    4. That the plaintiff, being the sheriff’s vendee, cannot be affected by any assignment of the said ground-rent made by Joseph Ripka, and unrecorded at the date of the said sheriff’s sale.
    5. That the defendant, as a creditor of Joseph Ripka, cannot stand in any better position than any other of his creditors.
    6. That notice to Shields or Ogle, prior to their acceptance of the trust, was no notice to affect creditors under the trust.
    7. That such notice would not be notice to a subsequent trustee.
    8. If the subsequent trustee purchased the ground-rent at sheriff’s sale, and receipted to the sheriff on account of the debts of the creditors, this made him a purchaser for value.
    9. That notice to charge Mr. Clay must have been notice by some one interested, and not by a mere stranger, and that mere rumor was not sufficient to put him on his guard. And that if the jury believe Mr. Clay, after such notice, made searches and found nothing, he is a bonfi fide purchaser for value, without notice.
    10. That if Winpenny held the ground-rent as a security for the payment of his debt, the mortgage being first on record, has a claim prior to it.
    The court answered:—

      “ I affirm plaintiff’s last point. If Winpenny took the conveyance as security merely, it is not good as against the claim of the plaintiff.
    “ I disaffirm all other points submitted by plaintiff, except so far as they refer to the question of notice, and I would not affirm that, had it not been a question raised in the argument of the motion for a new trial, when Pierce, J., ordered a new trial on the ground that defendant ought to have been permitted to prove this notice to trustees. If I did not feel myself precluded on this question of notice, I would affirm the points submitted by defendant, and disaffirm those of plaintiff, even to that extent. But, inasmuch as I consider myself precluded by the judgment of the court, I affirm those points of defendant, with the qualification that you must take into consideration this question of notice to trustee. If you find the conveyance was made to Winpenny under the circumstances testified to, and if also you find that it was made in payment, and not by way of security; and that both Ogle and Clay had notice of this, then your verdict must be for defendant.”
    The verdict was for defendant.
    The plaintiff took a writ of error and assigned for error the admission of the evidence and the disaffirmance of his points.

      J. G. Johnson, for plaintiff in error.

      R. P. White and George H. Earle, for defendant in error.
   The opinion of the court was delivered, March 31st 1870, by

Sharswood, J.

Joseph Ripka, on the 5th of November 1857, executed a deed conveying to Samuel Winpenny in fee the ground-rent in question. It was absolute on its face, and after the verdict below must be assumed to have been for a valuable consideration, having been given and received in payment and extinguishment of a debt, due by the grantor to the grantee. It was not recorded, however, until April 3d 1867.

On November 20th 1857, Joseph Ripka executed a mortgage of this ground-rent with other real estate, to George Shields and Henry K. B. Ogle, in trust to secure certain of his creditors, conditioned for the payment by the mortgagor, within one year from the date, of a sum sufficient to discharge their debts with interest. George Shields died, and Harry G. Clay was appointed by the Court of Common Pleas trustee in his place. Afterwards Mr. Ogle, the other trustee, died, and Mr. Olay proceeded by scire facias on the mortgage, and the plaintiff, Samuel Spackman, became the purchaser at the sheriff’s sale, but bought, however, as agent for the trustee, as the jury have found. The. mortgage was recorded the same day.

It is contended that the deed to Winpenny not having been recorded within six months from its date, nor until long after the recording of the mortgage, the title derived under it must be postponed to that derived under the mortgage. It has not been and cannot be pretended that the purchase by the trustee at sheriff’s sale gave him any better title than he had before. The jury must have found that Ogle had notice of the deed to Winpenny, and that notice was communicated by him to Mr. Clay, after his * appointment and- before the sale. All question on that point, must be considered as at rest.

But it is certainly very doubtful, to say the least, whether the notice to Ogle before he became trustee can affect the eestuis que trust under that mortgage, if they can be considered as purchasers for value. In The Lessee of Henry v. Morgan, 2 Binn. 497, an ejectment against a trustee, it was held not to be competent to give evidence that he had notice of an unrecorded deed before his appointment, because it cannot affect the eestuis que trust. But were the creditors of Eipka, secured by the mortgage, purchasers for a valuable consideration, within the protection of the recording Act of March 18th 1775 ? (1 Smith’s L. 422.) It provides that an unrecorded deed shall be adjudged fraudulent and void against any subsequent purchaser or mortgagor for valuable consideration.” It is very well settled that an assignment in trust for the payment of debts is not within the protection of the act. The assignee is not a purchaser for value, neither are the creditors, having surrendered no right, nor agreed to any forbearance on the faith of the instrument: Twelves v. Williams, 3 Wharton 493. “ Perhaps nothing is better settled in this state,” says Mr. Justice Agnew, in In Re Fulton’s Estate, 1 P. F. Smith 211, “ by uniform and numerous decisions than this, that a voluntary assignee is the mere representative of the debtor enjoying his rights only, and no others ; and is bound where he would be bound; that he is not the representative of creditors and is not clothed with their powers; that he is but a volunteer and not a boná fide purchaser for value. Nor are the creditors for whom he holds his trust such purchasers under his deed.” See the cases there cited. Wherein does a mortgagee for the benefit of creditors differ from an assignee ? The ingenious counsel for the plaintiff has indeed argped very strenuously that the assent of the creditors to the delay of a year under the mortgage would amount to a contract to forbear for that period, and thus constitute them purchasers for value. But where was the evidence of their assent? Had they actually become parties to the mortgage, or executed a release or letter of license, there might have arisen such a question. There is nothing to show that every one of the creditors could not have proceeded against Ripka personally at any period. In Bixler v. Ream, 3 Penna. Rep. 282, the defendant endorsed on a bond held by the plaintiff an agreement to pay it in one year from the date, yet it was held that, there being no agreement to forbear, it was without consideration.

It is evident, from the determination of this question, that the plaintiff in error has no ground to complain of the admission of the evidence, or the refusal of the court below to affirm his points.

Judgment affirmed.


author: Agnew, J.

text:
    Winpenny and Chedester versus Philadelphia.
    1. The Act of April 14th 1859 relating toiobstructions in rivers does not repeal the 28th section of Consolidation Act of 1854, requiring Philadelphia to keep the navigation clear.
    2. The Act of 1859 relates to trading vessels sunk in tide water.
    3. The act was to provide for raising and removing vessels in use having some value and having owners, &c., liable to port regulations who could be reached.

      4. An owner is not liable to raise or remove the hulk of a worthless wreck, sunk in navigable waters, nor is he liable for injuries to other navigators.
    5. If instead of abandoning a sunken vessel the owner retains such possession and control of it as it is susceptible of,*he is bound to exercise a reasonable degree of diligence in removing it.
    6. If he attempts to remove the wreck and fails, the inadequacy of the means will not be proof of negligence.
    7. A municipal corporation through which a stream passes, is not bound to keep it in a navigable condition.
    8. The understanding is that removing obstructions, &c., from navigable streams is upon the state or United States, accordingly as they may be confined within state limits or extending beyond and necessary for inter-state commerce.
    9. Such obligation cannot be enforced against the will of the state.
    10. By the 28th section of the Consolidation Act the councils of Philadelphia are required to keep the “ navigable waters” within its limits clear.
    11. “Navigable waters” intended are those without the wharf lines, and the city is liable for negligence in not removing obstructions from them.
    12. Pittsburg v. Grier, 10 Harris 54, distinguished.
    March 24th 1870.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ. Read, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 199, to July Term 1869.
    This was an action on the case by William Winpenny and William Ohedester against The City of Philadelphia, brought to March Term 1868. The cause of action was the negligence of the defendants in permitting the navigation of the river Schuylkill to be obstructed by a sunken barge, against which the plaintiff's tug-boat struck and was injured.
    The evidence was, that about the last of March 1868, the wreck of a canal-boat which had been carried down the Schuylkill by a freshet, sank in the channel opposite South street wharf. The master warden of the port of Philadelphia was informed of the wreck, and having ascertained the name of the owners, he found that they had gone to New York and he could not reach them; “ the wreck was of no value, not fit even for firewood; having no funds to pay the expense of the removal, he let it go.” After the wreck had been there about a month, the plaintiffs’ boat in coming up the river struck the wreck, and after going a short distance sank. Some time afterwards the man who notified the warden removed the wreck, without any contract or obligation for payment; the councils afterwards made an appropriation to pay him. The plaintiffs gave evidence of damages, and closed.
    The 28th section of the Act of February 2d 1854, Consolidation Act, Pamph. L. 37, provides, “ That after the requisite surveys and soundings shall have been made, it shall be the duty of the city councils to fix the lines beyond which no wharf or pier shall be constructed, 11 and to keep the navigable waters within said city for ever open and free from obstruction.’ ”

      The Act of April 14th 1859, Pamph. L. 643, provides, that “ whereas, frequent obstructions to safe navigation in the Delaware and Schuylkill rivers, within the tide-water thereof, do frequently occur by the sinking of canal-boats, barges and other vessels trading on said rivers, and there being no adequate remedy to compel the owner, master or other agent having charge thereof to raise and remove the same: therefore it shall be the duty of the master warden of the port of Philadelphia, immediately upon information of the sinking of any canal-boat, barge or other vessel in the channel-way of the tide-waters of the river Delaware or Schuylkill, within the limits of the port of Philadelphia, to give notice to the owner, master or other agent having charge thereof, to raise and remove such obstructions within ten days, under a penalty of one hundred dollars,” &c., and that in the case of the failure of the parties notified to remove the obstruction, the master warden shall have it removed at the expense of the owner, master or agent, and that he shall have a lien on the vessel and cargo for all expenses.
    This act repeals “all laws inconsistent” with its provisions.
    The court (Stroud, J.) directed a nonsuit, which the court in banc, Thayer, J., delivering the opinion, refused to take off.
    The plaintiff removed the case to the Supreme Court by writ of error and assigned the judgment of nonsuit for error.

      R. P. White and G. H. Earle, for plaintiffs in error.
    They referred to the foregoing Acts of Assembly. The above provision of the Consolidation Act is not repealed, for the section of the Act of 1859 is not inconsistent. The city was bound to keep the navigation clear: Pittsburg v. Grier, 10 Harris 54.

      C. H. Gross and T. J. Barger, for defendant in error.
    The acts referred to do not impose on the city the duty of keeping the navigation clear, that belongs to the United States: Gibbons v. Ogden, 9 Wheat. 1; Smith v. Turner, 7 How. 283; Corfield v. Coryell, 4 W. C. C. R. 371; The Barque Chusan, 2 Story 455; Hammett v. Philadelphia, postea 146.
    The preamble is not part of a statute; Dwarris on Statutes 655.
   The opinion of the court was delivered May 5th 1871, by

Agnew, J.

The true question in this case seems not to have been brought to the attention of the learned court below, whose decision appears to have been rested on the effect of the Act of 14th April 1859, Pamph. L. 643. But the case does not fall within the scope of that act. The evidence shows that the obstruction which caused the injury to the plaintiffs’ vessel was an abandoned canal coal-barge, which had been wrecked somewhere in the upper waters of the Schuylkill, was brought down by a freshet and lodged ■within the port limits of the city of Philadelphia opposite South street wharf. It was also testified that the wreck was of no value, not even fit for firewood, and was claimed by nobody. The persons said to have been the owners were not within reach, and had gone to New York.

The preamble of the Act of 1859 recites “that frequent obstructions to the safe navigation of the Delaware and Schuylkill, within the tide-waters, do frequently occur by the smiting of canal boats, barges and other vessels trading on the said rivers, and there being no adequate remedy to compel the owner, master or other agents having eharge thereof, to raise and remove the same’ the act then enacts that it shall be the duty of the master warden of the port of Philadelphia, immediately on the information of the sinlcing of any canal-boat, barge, or other vessel in the channel-way of the tide-waters of the rivers within the limits of the port of Philadelphia, to give notice to the owner, ho., having charge thereof, to raise and remove such obstruction within ten days, under a penalty, he. In case of the refusal or neglect of the parties interested, he is then to raise and remove the boat or vessel at the expense of the owner, master, &e., and the boat and cargo are made subject to a lien for the expense. The master warden is also authorized to sell all such property at public sale for cash, to pay the expenses, returning the surplus to the owner, f” It is very clear these provisions do not apply to the sunken hulk described in the testimony. It was not a trading vessel, or a boat, or barge, capable of use, but an old and worthless wreck, which had drifted off and lodged and became embedded in the mud. It did not sink, within the letter or the spirit of the act, in the tidewater of the Schuylkill and the limits of the port of Philadelphia, but was brought down the river by a freshet. It had no owner, master, or agent having charge of it, but had been abandoned in the upper waters of the river. There were no parties interested ; it was not the subject of a lien, and could not be sold at any price, for it was utterly worthless — not fit even for firewood. Those who have noticed the rusty and mud-and-water-soaked timbers and planks of such a sunken hulk, can readily understand how" worthless they become. The evident intention of the Act of 1859 was to provide for the raising and removing of trading vessels, that is, those in use — vesselshaving some value, and having owners or other parties interested in them, who are liable to port regulations and can be reached. But a worthless wreck like this, abandoned by the owner and brought down by a flood, is not only valueless, and without a party interested in it, but the owner is absolutely not liable to raise or remove the hulk. The principle is stated in the 3d vol. Whart. Cr. Law, sec. 2406 (6th edition), where it is said: “ But if a ship or other vessel sink by accident in a river, although it obstruct the navigation, yet the owner is not indictable as for a nuisance for not removing it.” For this he cites the leading cases of Rex v. Watts, 2 Espinasse Rep. 675; and also R. v. Russell, 9 D. & R. 561; s. c. 6 B. & C. 566; R. v. Ward, 4 Ad. & El. 384; R. v. Tindall, 6 Ad. & El. 143, and R. v. Morris, 1 B. & Ad. 441. In the very recent work of Shear-man & Redfield on the Law of Negligence, sec. 583, it is said: “ It is well settled that the owner of a vessel which has been sunk in navigable waters, and abandoned by him, is under no obligation to remove the vessel, and is not liable for the injuries it may cause other navigators.”. If, however, instead of abandoning the wreck he retains such possession and control of it, as it is susceptible of, he is bound to exercise an ordinary and reasonable degree of diligence and despatch in removing it, or preventing its doing injury to others.” And when he attempts to remove the wreck and fails, the inadequacy of the means will not be proof of negligence. Ibid., and see authorities there cited. And see, also, Angell on Watercourses, 3d ed., p. 211.

There seem to be good reasons for this rule. When a vessel is lost by the act of God, or by accident, the owner suffers oftentimes great damage, and when she becomes a total loss, it seems to be a great hardship to add to his misfortune the duty of removing the wreck. It would discourage commerce to hold him to so severe a duty; for who would engage in trade, if, when he has lost his vessel, he might be forced to incur an expense of more than her original cost in removing the wreck from some difficult position ? If compelled by the accident to abandon his property, the duty of removal should rather fall on the public, who are interested in the navigation, than on him.

That this absence of liability on the part of the owner is commonly understood by the people of this state, is evident from the fact that her large rivers are often strewn with the wrecks of vessels, bridges and buildings, carried down by the floods and lodging among the rocks, in the sand, and along the shore, and yet no one thinks of a suit or indictment against the owners for not removing them. I can see no difference between the wrecks of vessels, and the ruins of mills, bridges and houses swept off by a freshet, and lodged in the waters below; yet no indictment or suit for not removing them has been sustained. Indeed, the reverse is stated by Gibson, C. J., in Lehigh Bridge Co. v. Lehigh Coal and Nav. Co., 4 Rawle 24, who says: When a loss happens exclusively from an act of Providence, it will not be pretended that it ought to be borne by him whose superstructure was made the immediate instrument of it.” The same doctrine was held in Roush v. Walter, 10 Watts 86. The owner of this abandoned wreck not being liable to remove it, or for injuries caused by it, the. next point is the liability of the city.

Whether at common law it was the duty of cities and towns to keep their ports free from obstructions appears (says the learned District Judge) to be a question involved in doubt. Pie then cites from Hale, De Portibus Maritimus, part 2, c. 7; 1 Hawk. P. Cr., c. 32, § 13; Borough of Colchester v. Brooke, 7 Ad. & El. N. S. 339, and Williams v. Wilcox, 8 Ad. & El. 314, to show that in England it has been held in different ways. The later’cases lean to the doctrine that navigable rivers are not like ordinary highways, and no duty lies on the public to keep them free of obstructions. But whatever may be the law necessary to the safety of commerce in a long-settled, wealthy, and populous country, the circumstances attending the settlement of this state, and the total inability of the people along the navigable streams to keep them free from obstructions, leave no doubt of the law as understood here. I remember no instance of an attempt to compel any county, township or city to maintain the waters fronting upon, or passing through it, in a navigable condition. The case of Pittsburg v. Grier, 10 Harris 54, was decided on the special duty of the city growing out of the maintenance of the wharf where the pile of iron lay, and the rents received for its use. As to ordinary highways, see Erie City v. Schwingle, 10 Harris 388. The general understanding in this country is, that the clearing out of streams and removing obstructions to navigation belong to the state or the United States, according to the character of the stream, as confined within state limits, or extending beyond and necessary to inter-state commerce. Yet it is not a duty of perfect obligation, but one of voluntary assumption, or imperfect obligation ; inasmuch as it cannot be enforced against the will of the state.

The loss of the plaintiff would, therefore, fall upon himself had it happened in any other part of the state. But by the 28th section of the Consolidation Act, passed 2d February 1854, P. L. 21, it is made the duty of the city councils, “ after the requisite surveys and soundings thereto have been made, to fix the lines beyond which no wharf or pier shall be constructed, and to keep the navigable waters within said city for ever open and free from obstructions.” It is argued this duty is restricted to the space within the wharf lines. But this is opposed to the language of the act referring to the navigable waters which are to be kept open and free of obstructions. The navigable waters are evidently those outside of the wharf lines. The duty, therefore, is express, and the consequences of negligence rest on the city. What we have already said shows that the case not falling within the scope and intent of the Act of 1859, the duty under the Act of 1854 is not affected by the 2d section of the Act of 1859, repealing all laws inconsistent with the provisions of that act. The court below, therefore, erred in directing a nonsuit.

Judgment of nonsuit reversed, and a procedendo awarded.


text:
    Hufsmith’s Estate.
    1. Hufsmith conveyed land to each of four sons, with agreements that from the consideration was to be deducted “ such sum as will amount to one equal share with the other children of the whole estate of the said Hufsmith which shall he at the time of his decease.” The consideration was to he paid in annual instalments, the first to he made in one year after his death. Hufsmith died, leaving eight children and the children of two others, and hy his will dated after the conveyances, directed his estate to he divided “ amongst my children,” naming eight, and further, “that an equal share is also to be paid to the heirs of my deceased daughter Julianna;” he left nothing to the children of the tenth. Held, that the estate including the purchase-money of the land was to he distributed under the will into nine parts, and the purchase-money due hy the four sons to he deducted from their shares respectively.
    2. The intention of the agreements was that' the whole purchase-money should fall as assets into his executor’s hands, and the shares of the sons to he deducted at his death.
    3. The contract share and the will share were the same.
    March 24th 1870.
    Before Thompson, C. J., Agnew, Sharswood and. Williams, JJ. Read, J., at Nisi Prius.
    Appeals from the decree of the Orphans’ Court of Monroe county, in Adam Hufsmith’s Estate: Nos. 243, 244, 245, 246, to January Term 1870.
    Adam Hufsmith being the owner of a large quantity of real estate, in 1817 entered into articles of agreement for the sale of separate tracts to each of his three sons Adam, Peter and Jacob, for sums named in the articles. On the 14th of August 1821, by other articles with the same sons, he modified the contract; the material parts of the latter articles with Peter, are as following:—
    “Whereas by an agreement in writing bearing date the twelfth day of June, Anno Domini one thousand eight hundred and seventeen, the said Adam Hoofsmith agreed to convey to the said Peter Hoofsmith a certain messuage and tenement and tract of land situate in Chestnuthill township aforesaid, containing one hundred and thirty-three acres and ninety-seven perches, for which the said Peter Hoofsmith covenanted and agreed to pay to the executors, administrator or assigns of the said Adam Hoofsmith after his decease the sum of two thousand dollars in the manner and form therein mentioned. It is therefore now agreed by and between the parties, that in consideration of the pressure of the times and the price of lands being greatly reduced, that the said Peter Hoofsmith shall pay no more than one thousand four hundred and sixty-seven dollars, first deducting therefrom such sum as will amount to one equal share with the other children of the whole of the estate of the said Adam Hoof-smith which shall be at the time of his decease, and it is also agreed that instead of paying one hundred dollars a year the said Peter Hoofsmith shall pay but sixty dollars a year, the first payment to be one year after the decease of said Adam Hoofsmith, and the said Peter Hoofsmith, his heirs and assigns, shall give the said Adam Hoofsmith twenty dollars’ worth of grain each and every year during his life.”
    The consideration of Jacob’s tract was to be $1800. The other stipulations were the same as Peter’s. The consideration of Adam’s tract was to be $869. The other stipulations were the same except that the provision as to his share of his father’s estate was “ deducting therefrom such sum as will amount to one equal child’s share of the whole estate of the said Adam Hufsmith, Sen., which shall be at the time of his decease, in manner following, to wit: Seventy dollars per annum till the whole is paid, the first payment being due one year after the decease of the said Adam Hoof-smith, Sen.” On the 3d of March 1837, Adam Hufsmith made a similar agreement with his son Philip for another tract, for the consideration of $2314.78; the stipulation as to his share was the same as that with Adam, and he was to pay $150 per annum till the whole should be paid, the first payment being due in one year after the father’s death. Deeds were made to the sons for their respective tracts on the day of executing the agreements subject to the stipulations contained in them. Adam became insolvent and died before his father — his land was sold by the sheriff to James Smith.
    Adam Hufsmith by his will, dated January 23d 1843, and proved October 21st 1850, directed as follows:—
    “ Secondly that give to my loveing wife if she should excead me in life all such liberty and stipulation as specifide in an greement made her before marriage. Thirdly is my will that after my deeeass all my real and personal estate shall be inventoried or appraised and sold by my executors by public or privit sale at their disoreation and the money arising therefrom shall be divided equally divided amongst children namely to my sons Peter Jacob and Philip also to my daughter Margrate now widow, Elizabeth intermarried with Daval't Eisher, my daughter Mary intermarried with Henry Weiss — my daughter' Pave intermarried with Peter Serfass, my daughter Catharine intermarried with Michael Lilly or there heirs. It my further my will that equal share is also paid to the heirs of my deceased daughter Julianna who was intermarried with Charles Haney except shueh amount as the said Charles II. Heaney shall be indebted to my estate shall be deducted therefrom. I also give and bequeath to Elizabeth Hufsmith who was intermarried with my deceased son Adam Hufsmith the sum of One dollar for the full share of my — Adam.”
    Letters testamentary were granted to his sons, Peter and Jacob Hufsmith, the executors named in the will.
    The sons and the purchaser at sheriff’s sale of Adam’s share made payments on account of the purchase-money of their tracts. On the 22d of November 1867 Peter Hufsmith, the surviving executor, filed a final administration account — four partial accounts having been previously filed. In these accounts the executors charged themselves with the whole purchase-money — what remained unpaid and also the several sums theretofore received from the sons on account of the purchase-money of their tracts of land. The balance appearing on the final account for distribution was $8321.27. This was referred to Thomas M. Mcllhany, Esq., as auditor for distribution. After deducting certain errors and the expenses of the audit, the balance was reduced to $8215.02. The auditor reported that this balance should be divided into ten parts — the number of children of the testator— in order to ascertain “one equal child’s share,” according to the articles of agreement; which upon this theory would make the aggregate shares of the four brothers $3286. He reported that this sum should be deducted from the whole balance appearing for distribution, which would leave $4929.02, which he reported should be distributed under the will. To this he added advancements to Eve and the husband of Julianna, and found that each of the nine children would be entitled, under the will, to $580.87. According to this mode of distribution each of the four sons would receive from the whole estate of the testator $1402.37 ; whilst the other children would each receive only $580.87. The other children filed the following exceptions to the report:—
    1. The auditor erred in distributing to Jacob Hufsmith, Peter Hufsmith and Philip Hufsmith, each $580.87, in addition to the $821.50 allowed each of them on their respective agreements with the testator, distributing to the six daughters of testator each only $580.87.
    2. The auditor should have divided the whole estate, including the balances due and unpaid on the four agreements with testator’s four sons, into ten equal shares, and distributed one such share to each of the testator’s six daughters named in the will.
    After hearing the exceptions the court recommitted the report to the auditor, with instructions to make distribution by computing the whole of the estate, ascertaining a child’s share, and distributing the amount equally among those who, under the will, are entitled to equal distribution. To be done without regard to the agreements between the three sons and Adam Hufsmith in his lifetime.
    In his second report, the auditor found the whole amount for distribution, after deducting the expenses of the audit, to be $8500.83, which, after deducting one dollar, the legacy to Adam’s widow, he divided into nine shares amongst the other children and their representatives, and reported in detail the amount due to each after deducting their respective indebtedness to the estate.
    Exceptions on behalf of the four sons were filed to this report. On the 27th of May 1869, the court dismissed the exceptions and confirmed the report. Appeals were taken to the Supreme Court on behalf of the four sons, and the decree of confirmation assigned for error.

      W. Davis and M. H. Jones, for appellants.
    It was not said that the money to be deducted under the agreements was an advancement, and it cannot so be presumed: Kreider v. Boyer, 10 Watts 54. The share, therefore, must be taken to be designed as that under the intestate laws. If these agreements had been mentioned in the will, and there was a bequest of the residue, this would have been in addition: Leidich v. Leidich, 8 W. & S. 863. They referred also to 2 Williams on Ex’rs. 746, 820; Balliett’s Appeal, 2 Harris 460; Witman v. Lex, 17 S. & R. 90.

      S. S. Dreher, for appellees,
    cited Weber’s Appeal, 5 Harris 474; Schneider’s Appeal, 4 Id. 407.
   The opinion of the court was delivered, March 31st 1870, by

Agnew, J.

The articles between Adam Hufsmith and his sons Peter, Jacob, Adam and Philip, evince his intentions as to their shares of his estate. He sold his lands to these sons severally for a large price, not payable until after his death. The whole purchase-money was therefore intended to fall as assets into the hands of his executor or administrator. Then, as an inducement to his sons to buy, he provided that their shares of his estate at his death should not be paid by them, but be deducted from the purchase-money. This was to be their security not only for a share of his estate, but also for the proportion each should receive. Looking at the time when payment of the price of the lands was to begin, to wit, one year after his decease, and the provision for the share to be then first deducted, there can be no doubt of Adam Hufsmith’s intention that this sum so deducted after his death, should be the share each one was then to receive of the entire estate. The language is peculiar: first deducting therefrom such sum as will amount to one equal share with the other children of the whole of the estate of the said Adam Hufsmith, which shall be at the time of his decease.”

This clear intent of Adam Hufsmith to suffer the price of his lands to fall into his estate at his death, and then, and not till then, to deduct the equal shares in his whole estate of these sons, must prevail, unless by his will he has plainly made a different distribution. An intent so rational, so just, and so firmly imbedded in the contracts should not be displaced by anything less than a clear and certain intent in the will to the contrary. We must therefore ascertain whether his will exhibits a different intent.

What good reason had he for making a will ? The purpose appears on its face. He wished to enforce the marriage settlement with his wife, and hence she takes nothing more under the will. He desired to subject the portion of the children of his deceased daughter Juliana to the debt of their father Charles H. Heaney; and also to cut off the family of his deceased son Adam, who had not done well, and had suffered the land, embracing his share, to be sold at sheriff’s sale. But when he had done these things his purpose stops, and upon reaching the shares of the other children, we find no intent different from that exhibited in the contracts, and on the contrary a disposition^ his estate precisely accordant, and identical with the contract provision. Thus, he says, thirdly, “it is my will that after my decease all my real and personal estate shall be inventoried or appraised and sold by my executors by public or private sale at their discretion, and the money arising therefrom shall be equally divided amongst my children, namely,” &c. Thus the testator, aware that by the contracts the purchase-money of his lands fell into and constituted a part of his distributable estate at his decease, by his will grasped precisely the same entirety, including also the debt due by Juliana’s husband, and divided it equally among all his children, excepting Adam, who was then dead, and whose share had been expunged by the sheriff’s sale. It was the failure to pereeive this entire coincidence between the contracts and the will in the evident post mortem distribution of the then whole estate contemplated by both, which led to this litigation. The error is in presupposing an intention to prefer sons to daughters not found either in the contracts or the will. But when we discover that the purchase-money of the contracts, by reason of the time fixed for payment necessarily fell into the estate as an entirety, before an equal share could be ascertained, and that by the will as well as the contracts the equal shares were to proceed from the whole estate existing at his decease, we perceive that the equal share of the contract and of the will are identical, and one cannot be superadded to the other. The provision of the contract was but a mode of securing to the sons as purchasers the retention of their shares in a specified proportion. In order to add the portion of the will to that of the contracts we must cast out the equal shares of the contracts from the whole estate remaining at his death, and then divide the same entirety of estate equally under the will, a matter clearly impossible. In other words, it is the same whole or entire estate which is to be divided at death under the will and under the contract. It can therefore be divided only into equal portions, so that the contract-share, and will-share are one and the same thing; the purchase-money not being payable until a year after Adam’s death, and the shares (not till then deducted), being an equal proportion of the then whole estate.

The distribution made by the auditor and approved by the court was therefore right, and the decree of the Orphans’ Court is affirmed, the record ordered to be remitted, and distribution to be made accordingly, and the costs paid by the appellants.

Thompson, C. J., dissented.