text:
    Waite versus Palmer.
    1. An action was “ Waite against Palmer,” and the declaration was on a note from Palmer to Waite, January 27th 1873; the form of action.and pleadings were amended so as to be “Morris, to the use of Waite,” &c.; on the trial the plaintiff was allowed to recover on a note, Palmer to Morris, dated January 27th 1871: Meld to be error, but as it was amendable below, the defendant in error was allowed to amend in the Supreme Court upon payment of the costs in error including the paper-book.
    2. The rule is to allow an amendment in the Supreme Court or treat the record as amended, where it is in furtherance of justice and the case has been tried on its merits, if no real injury will be done to the party complaining of it.
    March 25th 1875.
    Before Agnew, C. J., Sharswood, Mercer, 'Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Warren county: Of January Term 1875, No. 350.
    This action was originally brought before a justice of the peace by H. B. Waite against II. H. Palmer, and removed into the Court of Common Pleas by appeal entered September 2d 1872. The justice’s transcript did not appear on the paper-book. On the 28th of April 1873, the declaration was filed. The declaration was “ H. H. Palmer, &c., was summoned to answer H. B. Waite of a plea that he render unto him $60. * * * And .thereupon the said II. B. Waite saith that whereas the aforesaid H. H. Palmer, on the 27th day of January 1873, * * * by his certain bill obligatory, * * * acknowledged himself to be indebted and promised to pay in three days * * * to said plaintiff the sum of $60.” * * *
    On the same day the defendant pleaded, “ Nil debit,” &e. Same day, on motion of the plaintiff, the court allowed him “ to amend the title to tins case and all pleadings therein so that the same shall stand and read, Mary Morris, for use of H. B. Waite, v. II. H. Palmer.” On the 3d of March 1874, the defendant, by leave of the court, added the plea of “Non est factum.” On the trial of the case, March 3d 1874, before Wetmore, P. J., the plaintiff offered in evidence the following note:—
    “ $60. Garland, January 27th 1871.
    Three days after date I promise to pay to Mary Morris or bearer the sum of sixty (60) dollars, with use, for value received. Waiving all right to the exemption of property from sale under Act of April 9th 1849. Without stay of execution. Witness my hand and seal.
    Hosea Palmer, [l. s.]”
    The defendant objected to the offer, because the note offered was not the one described in the declaration.
    The court admitted the offer and sealed a bill of exceptions.
    The verdict was for the plaintiff for $71.16.
    The defendant took a writ of error and assigned for error the admission of the evidence objected to.

      R. Brown, for plaintiff in error.

      W. JD. Brown, for defendant in error;
    he moved to amend the-record in the Supreme Court to correspond with the facts.
   Judgment was entered in the Supreme Court, April 1st 1875,

Per Curiam.

As the declaration stood at the time of the trial, there was a technical variance between it and the note offered in evidence, the date in the former being laid as in 1873, and in the latter being 1871. Hence the exception was good. But the declaration was amendable, and the means of amendment appeared in the record as set forth in the transcript from the justice. The true date is set forth in his transcript, showing that the note was the same exhibited to the justice and the cause of action therefore the same. The plaintiff below, defendant in error, moves to amend the narr. so as to correspond with the transcript and note. We think he is entitled to his motion, as the amendment was one to which he was entitled below; but having omitted to ask it there, and having suffered the defendant to take his writ of error, and bring it before us for argument, he can have the benefit of his motion only on condition of paying the costs in error, including the expense of the paper-book. There is ample authority for this course : Wampler v. Shissler, 1 W. & S. 370; Morris v. McNamee, 5 Harris 173; Miller v. Weeks, 10 Id. 89. The rule is to allow the amendment to be made in this court, or treat the record as amended, where it is in furtherance of justice, and the case has been heard and decided on its merits, and no real injury will be done to the party complaining of it.

Judgment affirmed, and the costs in error, including expense of paper-book, ordered to be paid by the defendant in error, and the remittitur to be withheld until this condition is complied with.


source: Caselaw Access Project

author: Mr. Justice Sharswood

license: Public Domain

text:
    Kilborn versus Field et ux.

    1. A decree pro confesso cannot be made upon a libel in divorce. If either party does not attend, the court must decide on testimony taken ex parte.

    2. A contract between husband and wife pending proceedings in divorce to pay her a sum of money, the consideration of which was, in whole or in part, that she would not oppose the divorce, is void.
    March 26th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Clinton county: No. 161, to July Term 1874.
    This was an action of debt, brought April 2d 1874, by Eurman Field and Margaret his wife, late Kilborn, in her right, against James R. Kilborn.
    The cause of action was the following note :—
    “ $400. On the 1st day of January, A. D. 1872, I promise to pay to Margaret A Kilborn four hundred dollars, without defalcation, for value received, with interest from date. Witness my hand and seal at Williamsport, this 4th day of August 1870.
    James R. Kilborn. [l. s.]”
    Mrs. Field had been the wife of the defendant, and upon his libel they had been divorced from the bonds of matrimony. The defence set up to the note was, that whilst the proceedings were pending an agreement was entered into between her and the defendant, that if she would not resist the application for the divorce, he would give her $1200, in three notes of $400 each, to be held by a third person, and delivered to her when the divorce should be decreed. She made no opposition to the libel, and the divorce was decreed; the notes were then delivered to her; the note in suit is one of them.
    On the trial, before Orvis, J., there was evidence of the foregoing allegations, and also that other matters were the consideration of the note.
    The court directed the jury to find a verdict for the plaintiffs, reserving the question whether the plaintiffs had the right to recover under the evidence.
    The jury found a verdict for the plaintiffs for $469.14, and the court entered judgment for the plaintiffs on the verdict on the reserved point. ,
    The defendant sued out a writ of error, and assigned for error, that the court directed the jury to find for the plaintiffs and entered judgment on the verdict.

      C. J. McCormick, for plaintiff in error.
    Courts will not enforce a contract for the performance of an act immoral, contrary to public policy, &c.: Addison on Contracts 9, 91, 102, 104, 706. Agreements for divorce are for an immoral act, and are contrary to public policy: Pettit v. Fretz, 9 Casey 123. It is also contrary to the Act of Assembly, and cannot therefore be enforced : Fowler v. Scully, 22 P. F. Smith 466; Bank of United States v. Owen, 2 Peters 538; Seidenbender v. Charles, 4 S. & R. 151; Coppell v. Hall, 7 Wallace 558 ; Swan v. Scott, 11 S. & R. 164 ; Brua’s Appeal, 5 P. F. Smith 294.

      S. JO. Ball, for defendants in error.
    The libel in divorce es-topped the defendant from denying that the divorce must be decreed: Addison on Contracts 840; 2 Story’s Eq. Jur., sect. 1533, 1546 ; Commonwealth v. Moltz, 10 Barr 527, and therefore the parties might agree that there should be no opposition. This was in the nature of a settlement on separation; such settlements and those in bastardy cases are constantly recognised: Wyant v. Lesher, 11 Harris 338.
   Mr. Justice Sharswood

delivered the opinion of the court, May 10th 1875.

Marriage is a civil contract, but it is more, it is an institution of the state. Parties cannot rescind or dissolve it, as they may all other contracts, at their own mere will. The state has provided for what causes alone it can be dissolved, and the question is, in all cases, submitted upon evidence adduced, to an appropriate tribunal. There can be no decree pro confesso upon a libel for divorce. If either party will not attend, the court shall inquire and decide ex parte by the examination of witnesses or interrogations, exhibits, or other legal proofs, had either before or at the hearing : Act of March 13th 1815, sect. 2 ; 6 Sm. Laws 287. The libel must be supported by an affidavit of the libellant, that “ the complaint is not made out of levity or collusion between the husband and wife, and for the mere purpose of being freed and separated from each other, but in sincerity and truth for the causes mentioned in the petition or libelIbid. Without such an affidavit the libel is fatally defective, and the decree for divorce under it will be reversed: Hoffman v. Hoffman, 6 Casey 419. Causes for divorce ‘‘being recognised by law,” we are to take it that the true philosophy of life, the ends of justice, and the interests of society, are best promoted by allowing the dissolution for such recognised causes. Courts, however, ought to be careful to see that all the requirements of the law, in such proceedings, be complied with, both as to form and substance, so that divorces may never be obtained through “ levity or collusion per Thompson, J., Ibid. Such then being the clear policy of the law, every contract founded upon a consideration in contravention of it must, according to well settled principles, be illegal and void. The libellant can no more buy the release or default of the respondent, than a defendant in a criminal prosecution can buy off the prosecutor and compound a felony. If the consideration of the note sued upon was in part or in whole that the respondent should not appear and oppose the divorce, the note was void. Whether such was the consideration was a question of fact which ought to have been submitted to the jury.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Mercur

text:
    Harkinson’s Appeal.
    1. A mother sold her place of business and contracted that “she will not engage in the same business, directly or indirectly,” in the Twepty-second Ward within ten years, but would by her counsel promote the business of the purchaser; she bought a lot and put up buildings suitable for the business for her son; she advanced money to him for carrying on as she had done to other children in their business. The master found that the business was really that of the son and not that of the defendant, was carried on by him on his own credit and means, and not by her. There was no evidence of injury to the purchaser. Under a bill to restrain her, from aiding in the business, permitting the premises to be used for the business, or selling the property to be used for the business : Held, under the circumstances an injunction should not be decreed.
    2. Agreements in restraint of trade generally, are void ; to be valid they must be limited in time or partial in their operation and supported by a sufficient consideration..
    3. That a court of equity may enjoin against the free exercise of a trade, the violation of the agreement should not be doubtful.
    4. Certainty is an essential element in the contract whose enforcement is sought by an injunction, and some appreciable damage should be shown.
    5. When damages will compensate the benefit derived or the loss suffered, equity will not interfere by injunction.
    March 29th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson, and Woodward, JJ.
    Appeal from the Court of Common Pleas of Philadelphia: In Equity: Of July Term 1873, No. 90.
    The hill in this case was filed October 22d 1870, by Abraham Engard against Elizabeth Harkinson. It alleged that the defendant, on the 11th of August, owned “ Harkinson’s bakery and confectionery establishment,” in the Twenty-second Ward, Philadelphia, where she had, for a number of years, been carrying on that business; that, at the date above mentioned she contracted with the plaintiff for the sale of the “establishment” to him for $30,000. One covenant in the contract was, that she would not engage in the same business, directly or indirectly, within the limits of the Twenty-second Ward, within ten years, but by her advice and counsel would encourage and promote the plaintiff’s business interest; that plaintiff had received a conveyance of the premises, and, up to the filing of the bill, had been carrying on the business of baking and confectionery; that the defendant, about April 1870, bought in fee, in her own name, a lot of ground in the Twenty-second Ward, with the avowed intention of erecting a bakery and confectionery; had since erected a building for that purpose on it, and had fitted it up, under her own direction and expense, with fixtures, &c., used only in that business, and for the purpose of having it carried on there; that David Harkinson nominally had charge of the premises, but the defendant was really the manager, and the business was carried on with the knowledge, sanction, encouragement and assistance of the defendant; she was constantly on the premises overlooking the business, making purchases, employing persons to conduct it, &c., and, directly and indirectly engaging in the business to such an extent as to induce the customers of the plaintiff to believe that she was actually prosecuting it, and to make purchases therefrom in that belief, with the intention and effect of injuring the plaintiff. The prayer was, that the defendant might be restrained for ten years, from August 11th 1868, from engaging in the bakery and confectionery business in the Twenty-second Ward; from making purchases, superintending and advising others engaged in the same business in the same limits, and from permitting the premises to be used in the same business, and from selling the premises to be used by others for the same purposes.
    The defendant, admitting several of the allegations in the bill, averred that she did not know, when the agreement was executed, that there was a stipulation in it that she should not engage in the same business in the Twenty-second Ward; she admitted'her purchase of the lot mentioned in the bill, and erection on it of a building adapted to the bakery business, &c., and that it was fitted up for the purpose with the intention of having that business carried on there, but denied that the fitting up was under her directions; her intention in buying the lot was that her son, David Harkinson, might go into business there, that he made and furnished the plans, the fitting up was under his orders, and the money which she had expended in the lot, in building the house, &c., was in the nature of an advancement to him; that he was the real owner, and the business was carried on solely for his benefit. She denied that she had any control of the business, or that the business of baker and confectioner, which was cax-ried on in the premises had her encouragement or assistance, further than the advancement, &c., she had made to him, to enable him to go into business; she denied, also, the other allegations of the bill.
    Replication was filed, and an examiner appointed; the pleadings and the testimony were referred to George Junkin, Esq., as mastex-
    He found the facts as follows:—
    John Harkinson, the husband of defendant, resided in German, town, in the Twenty-second Ward of Philadelphia, and for many years carried on most successfully the business of a baker and confectioner. He amassed a considerable fortune, and he and his business were well known throughout the ward. He had four sons and two daughters. Shortly before his death, in 1863, he furnished his son Charles with about $2400, with which the latter went into the heater, stove and range business,- and has continued in it ever since. In 1870, his mother gave him $2900, with which he bought out his partner. No obligation of any kind was given or demanded when these sums were given to Charles Harkinson, and he has repaid no part of the money or any interest, and there seems to have been no distinct contract of any kind for its return. In February 1864, John Harkinson died, and by his will, dated July 25th 1863, he gave tAvo-sevenths of his estate to his daughter Marian, after the decease of his Avidow, and all the 'rest of his estate, absolutely, to his widow, and appointed her sole executrix. Mrs. Harkinson continued her husband’s business at his well-known business stand, known as “ Harkinson’s,” from his death up to the time of her sale to the plaintiff, in September 1868. In the summer of 1865, her son, John Harkinson, desired to go into the confectionery and bakery business for himself, having been brought up to it by his father. He first started the business in Frankford, receiving from his mother about $1400 for the purpose, and continued there about a year. His mother fitted up his store and stocked it. He then removed to Germantown, about a half a mile below his mother’s store. She bought the place, taking the title in her oAvn name and paying $5000 cash for it, subject to a mortgage of $4000. .In addition to this, she paid about $2500 for repairs and fixtures, &c.
    In August 1868, Mrs. Harkinson, being then upAvards of seventy years of age and desirous of relinquishing business, put her business and place of business into the hands of Mr. Robert Thomas, conveyancer and real estate agent, of Germantown, for sale.
    After some negotiation, a contract for the sale of her property and place of business, dated August 11th 1868, Avas made with plaintiff; the consideration was $30,000. The contract contained the following clause:—
    “ An¿ the said Elizabeth Harkinson further agrees, that she will not engage in the same business, directly or indirectly, within the limits of the Twenty-second ward of the said city (Philadelphia), at any time within ten years from this date, but that she Avill by her advice and counsel, endeavor to encourage and promote the business interest of the said Abraham Engard.”
    The deed for the property was duly executed and delivered to the plaintiff.
    In January 1870, Mrs. Harkinson gave to her son James Harkinson $5000, with which he commenced the upholstery business in Germantown; no note or other obligation was given or demanded for this. It has not been repaid. In the spring of 1870, Mrs. Harkinson, in like manner, gave to her daughter Marian Harkinson $6000, with which she commenced the millinery business in Germantown. No note or other obligation was given or demanded for this. And the money has not been repaid.
    In the spring of the same year 1870, her remaining child David, who had been working in the confectionery and baking business, with his brother John Harkinson, in Germantown, asked his mother to set him up in business in Germantown. This she declined to do, “because it would not be fair to Mr. Engard.” Mrs. Harkinson, David and Marian, went to Chestnut Hill, to look at Fox’s bakery. They met a carpenter at Chestnut Hill, by whom Mrs. Harkinson was induced to purchase a lot of ground next to the depot of the Chestnut Hill Railroad, and to build thereon a house and the other appliances suitable for a bakery and confectionery. The title to this real estate was taken in her name; the general plans of the house, &c., were prepared by her son David, and she and he both took an active part in superintending the erection and fitting up of the establishment, complete in every respect for the business. For the lot and buildings, she paid $11,190. In addition to this, she furnished about $1200, for the purchase of the working utensils of the business, a large portion of which she personally bought and paid for, lists of articles being made out by David. All of this was done openly, and without any attempt at concealment, she stating to most of the parties from whom these purchases were made, that they were for him. There was no evidence to show that the plaintiff had any knowledge of all this at the time.
    The place thus brought by her, built, fitted up and stocked, is within the Twenty-second Ward of this city, about four miles from Mr. Engard’s store, near to the county line, next to the railroad depot, and the connection with Germantown by the railroad, is almost hourly every day, except on the Sabbath. The name put over the door was and is “ Harkinson.” David Harkinson moved to this place in August 1870, and on August 1st 1870, took out a United States license as a retail dealer for the year ending May 1st 1871; and with some means of his own, bought the articles necessary to start the business with ; and he has continued to carry it on there ever since, paying the taxes on the place for the year 1871. Mrs. Harkinson purchased some few things for him at the first, but of no great amount. There was some slight evidence, that she had taken some part in the management of this business; but it was not enough to make one say that it was her business ; and certainly, was not more than a mother would be expected to do, and would naturally do for a son, under the circumstances. Her course with him, as to this property and business, seems to have pretty much the same as that pursued by her with her other children. It was in each instance loosely done, and with no very definite contract or agreement; hut with a general understanding, that the children were getting in advance their shares of the estate which their parents had accumulated — in no event was the money in the case of either child to be returned; and the payment of interest was to depend upon success, and most probably, would not be enforced at all.
    Upon the whole evidence, the master reports, that the business carried on at the store in Chestnut Hill has been, and really is, the business of David Harkinson ; and was and is not, that of the defendant; and is managed and carried on by him on his own credit, and with his own means, and not by her.
    There was no proof of any special damage suffered by plaintiff, by reason of the opening of this bakery and confectionery establishment, at Chestnut Hill, or that customers had left him and gone there.
    The master reported that Mrs. Harkinson’s conduct was a breach of her covenant with the plaintiff and that she should bec,required by injunction to close the property as a bakery and confectionery until August 1878, and that she be restrained for ten years from August 11th 1868 from- engaging directly or indirectly in that business, &c., within the limits of the Twenty-second Ward.
    He recommended a decree in accordance with the prayers of the bill, except as to damage.
    Exceptions were filed to the report of the master. The Court of Common Pleas overruled the exceptions, confirmed the report and made the decree recommended by the master.
    The defendant appealed to the Supreme Court, and in a number of specifications assigned the decree for error.

      O. S. Paneoast, for appellant.
    There is nothing in the agreement to prevent merely a rival establishment and no condition can be implied: Midland Railway Co. v. London & N. W. Railway Co., Law Rep. 2 Eq. 524. The covenant is to restrain her personally, not to prevent her from setting her children up in business ; such agreement would be against public policy, unreasonable and void; to he enforced the contract must be reasonable : Horner v. Graves, 7 Bing. 743; Morris Run Coal Co. v. Barclay, 18 P. F. Smith 173; Gompers v. Rochester, 6 Id. 194. An injunction is not of right; a chancellor must regard not only the rights of the parties, hut those also of others which may he involved : Wood v, Sutcliff, 2 Sim. N. S. 42 : Mayor v. Commissioners, 7 Barr 365 ; Grey v. Ohio & P. Railroad Co., 1 Grant 412 ; Richards’ Appeal, 7 P. F. Smith 113; Clark’s Appeal, 12 Id. 450; Browne v. Newhall, 2 Myl. & Cr. 570 ; Bonaparte v. Camden & A. Railroad Co., Bald. 218; 2 Story’s Eq. 959, b. note 5. The inconvenience of enforcing an injunction is a reason for withholding it: Collins v.
      Plumb, 16 Vesey 454 ; Deitrichen v. Cabbum, 2 Phil. 52 (22 Eng. Chanc.); Lumbs v. Wagner, 1 DeG., M. & G. 620; Jaster v. Partington, 7 Id. 328 ; South Wales Railroad Co. v. Wythes, 5 Id. 880; Hoop v. Broderick, 11 Sim. 47.

      J. Q-. Johnson, appellee.
    Damage is presumed to result from a breach of covenant, and the defendant will be restrained although no actual damage is proved : Attorney General v. Railway Co., Law Rep. 3 Ch. Ap. 104. The acts of defendant were indirectly engaging in the business: Perkins v. Lyman, 9 Mass. 522.
   Mr. Justice Mercur

delivered the opinion of the court, May 10 th 1875.

The first question which arises in this case is, has the appellant violated her agreement, not to engage, either directly or indirectly, in that business, the good-will of which she sold to the appellee ?

Her husband had owned and carried on a bakery and confectionery establishment, in the Twenty-second Ward, in the city of Philadelphia. .He devised most of his estate to the appellant absolutely, appointed her his sole executrix, and died leaving six children. She continued the business for a time, and then sold to the appellee the establishment, together with the good-will of the business, for a gross sum, in 1868. At the same time, she agreed not to engage in the same business, directly or indirectly, within the limits of the said ward, at any time within ten years from the date of said sale; but, by her advice and counsel, she would endeavor to encourage and promote the business interest of her vendee. During the life of her husband he had furnished one of their sons a few thousand dollars, with which he had entered into business. After the death of her husband the appellant had also furnished the same son several thousand more. She had also furnished a second son with an amount somewhat larger, to start him in business. In each case no obligation was demanded or given, nor had any of the money, or interest thereon, been repaid, nor does it appear that there was any distinct agreement of any kind for its return.

In 1870, appellant purchased a lot at Chestnut Hill, within the said ward, near the county line, but four miles from the establishment sold to the appellee. On it she huilt and fitted up a house, and the other appliances suitable for a bakery and confectionery. The general plan of the house and its appertenances was arranged by a third son, David, and both he and his mother took an active part in superintending the erection and completion of the establishment. Having put over the door the name “ Harkinson,” she gave to her son David the possession of the establishment. He took out license as a retail dealer, and had continued to carry on the business down to the time of the hearing before the master. The master found and reported that “ the whole evidence shows that Mrs. Harkinson did what she had done in pursuance of a plan pursued towards her other children, and which seems to have been understood and been acquiesced in by all of them.”.

There appears to have been no specific binding agreement between David and the appellant, but an understanding that after he should be thoroughly established in business he should pay her interest on the sum advanced, and in case of her death, the property was to be his ; but if its value was more than his share of liis father’s estate, he was to make payment to his brothers and sisters of the exoess. He thus took and held the possession, subject to an equitable adjustment, with his brothers and sisters, of its relative value on the death of his mother. He has paid no rent and no interest qn the investment. Upon the whole evidence, the master reported “ that the business carried on at the store in Chestnut Hill has been and really is the business of David Harkinson, and was and is not. that of the defendant below, and is managed and carried on by him on his own credit, and with his own means, and not by her.” Nevertheless, the master found that by furnishing the means and fitting up the establishment for her son, by which he was enabled to engage in the business, the appellant had violated the true intent and spirit of her contract. The case of Perkins v. Lyman, 9 Mass. 522, goes far towards sustaining that conclusion. • Yet that case is distinguishable from the present in this: there, with an intent to violate his contract, with an intent to engage in the business from which he was excluded, he fitted up and owned a vessel for such a voyage. His design was to be interested in the business;. thus throwing his knowledge, skill and experience into competition with one, in violation of his agreement. In the present case the appellant did not erect nor furnish the establishment with any intention that she would engage in the business, or be in any manner interested therein. In furtherance of her plan for aiding her children, she had substantially advanced to him his supposed share in her estate. It was invested in that particular for his benefit, and not hers. The effect was the same as if she had given or loaned to him money, with a knowledge that he intended so to use it. It is certainly going very far to say that by the general terms used in this agreement a parent has covenanted to control the business of her son by withholding from him his share in her estate. Without deciding adversely to the conclusion of the master and court on this point, we think the case is not free from doubt.

2. Does the appellee present a case which should move a chancellor to enjoin the appellant against permitting the premises to be used in carrying on the business in which her son is qngaged ? Is it a violation of such a character, and to such, an extent, as to justify this specific remedy ?

We have clearly shown that the appellant personally is nowise engaged or interested in the business, otherwise than by the master’s assumed indirectness. So there is no occasion to enjoin her against doing what she has not done, and does not propose to do. Shall she turn her son out, or enjoin him against pursuing his business ? An attempt to do either might not be entirely successful.

It must be borne in mind that agreements in restraint of. trade generally are void. To give validity to them they must be limited in time or partial in their operation, and be supported by a sufficient consideration : Gompers v. Rochester, 6 P. F. Smith 194.

When a court of equity is called upon to enjoin a person against the free exercise of a trade, the violation of the agreement ought not to be doubtful. Hence, a merchant, who, upon selling his stock in trade and business, covenants not to carry on the same business at the same place or within certain limits surrounding, and who thereupon gives up his place of business, will not be enjoined from afterwards soliciting and procuring orders within the specified territory — the question of whether this constitutes a breach of the covenant being regarded as too doubtful to warrant an injunction, without bringing an action: High, on Inj., § 743; Sivener v. Evans, 2 De Gex, M. & G. 740. So, where one undertakes the management of the business of a chemist, having, covenanted against carrying on the same business in his own name and for his own benefit, or in the name and for the benefit of any other person,' within a certain radius, under a specified penalty named by bond, and he afterwards solicits orders for another chemist within the limits specified, the effect of such conduct upon the covenant in question is regarded as too doubtful to warrant a preliminary injunction: High, on Inj., supra; Clark v. Watkins, 9 Jur. N. S. 142. If, however, one agrees not to set up or follow, or practice a particular business, and then act.s as an assistant or manager in the business for another person, it is a violation of his covenant: Dales v. Weber, 18 Weekly Rep. 993. In such a case his covenant not only excluded him from interest or profit in the business, but also from personal employment therein. Nor is a covenant against engaging in a certain trade, or in any matter pertaining thereto, within a certain district, regarded as violated by loaning money to one engaged in such business, the loan being secured by mortgage on the business premises, even though the covenantor may know that the mortgagor's only means of repaying the money is out of the profits of the business: High, on Inj., supra; Bird v. Lake, 1 Hem. & Miller 338.

“There is no power,” said Mr. Justice Baldwin, in Bonaparte v. Camden & Amboy Railroad Co., 1 Bald. Cir. C. R. 218, “ the exercise of which is more delicate, which requires greater caution, deliberation, and sound discretion, or is more dangerous in a doubtful case than the issuing of an injunction. It is the strong arm of equity that never ought to be extended, unless to cases of great injury, where courts of law cannot afford an adequate or commensurate remedy in damages.” It ought, therefore, to be guarded with extreme caution, and applied only in very clear cases : Story’s Eq. Jur., § 959 b. Certainty is an essential element in the contract, whose enforcement is sought by injunction, and where a covenant is uncertain, in its provisions, no injunction will be allowed: High, on Inj., § 720. So, too, it is usually requisite that the party aggrieved should show some appreciable damage, as the result of the breach of covenant which he seeks to restrain: Id. Where damages will compensate either the benefit derived or the loss suffered, equity will not interfere: Grey v. Ohio & Penna. Railroad Co., 1 Grant 412. So, where either party may suffer by the granting or withholding an injunction, the rule in equity requires the court to balance the inconveniences likely to be suffered by the respective parties, by means of the action of the court, and to grant or withhold the injunction according to a sound discretion: Id.; Richards’ Appeal, 7 P. F. Smith 105. A court of equity will not interfere if the damage is slight, and the nuisance is of a temporary character, so that damages at law would furnish an entire and adequate remedy : Bisph. Eq., § 440. It was said in Butler v. Burlesow, 16 Vermont 176, “when there is an express covenant, and an un con tro ver ted mischief arising from the breach of it, equity will grant an injunction to restrain the breach.” In Clark’s Appeal, 12 P. F. Smith 447, Mr. Chief Justice Thompson said, “injunction is a remedy in equity, to restrain or prevent such acts of wrong, as would, if done, result in irreparable injury to. the property of the complainant. No decree should ever be made to be followed by writ of injunction, unless this element be clearly established.” There should be some irreparable injury, either committed or threatened, to justify an injunction.

In McOlurg’s Appeal, 8 P. F. Smith 51, the question of injury sustained is not distinctly presented in the report of the case, yet, in the opinion of Mr. Justice Sharswood, he clearly assumes it to exist, and cites with approbation the case of Butler v. Burlesow, supra.

The appellant denies, in her answer, that she has encouraged and promoted the business of others with the intent and effect of injuring complainant; on the contrary, she alleges and avers that she has advised and encouraged the old customers of her place to continue their custom, and has endeavored to remove objections on their part to purchasing of the appellee. The master has found “ there was no proof of any special damage suffered by plaintiff (below) by reason of the opening of this bakery and confectionery established at Chestnut Hill, or that customers had left him and gone there.”

The master does not find that this establishment will be any more injurious to the appellee in the future than it has been in the past. The proof then not only fails to show irreparable injury to the property of the appellee, which cannot be compensated in damages, but shows that no appreciable damaged has been done to, or suffered by him.

It is not the province of courts to decide abstract questions, but to determine relative rights, and to redress relative wrongs, according to the rules of law and equity.

The complaint here rests on an alleged violation of a contract. The fact of a violation is not free from doubt. The appellee has not sustained, nor has he reason to fear, any substantial injury to his property. Under all the circumstances, it is not a case that now calls for the exercise of the high power invoked. We think the learned judge erred in adopting the conclusion of the master, and in decreeing accordingly.

Decree reversed, and bill dismissed at the cost of appellee.


author: Per Curiam.

text:
    Chambers et al. versus Union National Bank.
    1. An Indiana bank drew on a Philadelphia bank in favor of the cashier of a New York bank ; the draft was stolen, the name of the cashier (payee) forged as endorser and passed to defendants, October 16th, in payment of goods sold to the holder, they giving to him a check on the Philadelphia bank for the difference which was drawn, and the draft endorsed by the defendants was deposited to their credit in the same bank. After learning of the fraud, on November 2d the bank demanded payment of the draft from defendants. Held, that the demand was in time.
    2. Under Act of April 6th 1849, the amount of the draft could be recovered back from the defendants.
    3. The holder of a draft which is endorsed and passed by him, guaranties the prior endorsements.
    March 29th 1875.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia, No. 126: Of July Term 1873.
    This was an action of assumpsit, brought December 21st 1868, by the Union National Bank against John H. Chambers and others, trading as Chambers & Cattell.
    The suit was brought by the bank, plaintiff, to recover the amount of a draft upon it, in favor of C. N. Jordan, cashier, and endorsed with his name, which had been passed to the credit of the defendants and the amount drawn out by them; the endorsement being a forgery. The draft was as follows:—

      “ The First National Bank of Warsaw, Inch, October 8th 1868.
    Pay to the order of C. N. Jordan, Esq., cashier, two thousand dollars.
    $2000. _ W. C. Graves, Cashier.
    _ To the Union National Bank, Philadelphia.
    Endorsed — Pay M. R. Rizer & Bro., or order.
    0. N. Jordan, Cashier.
    M. R. Rizer & Bro.
    Chambers & Cattell.”
    On the 15th of October 1868, a man who said he was Mr. Rizer, of the firm of M. R. Rizer & Bro., and who had been introduced by that name to defendants by Mr. Keeler, of the firm of D. S. Winebrenner & Co., bought goods from the defendants, amounting to $258.50; on the next day about nine o’clock in the morning, the man came for’ his bill and’ presented for payment the above-stated draft. Mr. Jordan, the payee, was cashier of the Third National Bank of New York; when presented to defendant the draft was endorsed, “ Pay M. R. Rizer & Bro., or order. 0. N. Jordan, Cashier.” The man endorsed the draft, “ M. R. Rizer & Bro.the defendants gave him a check on the plaintiff for $1741.50, the difference between the draft and the amount of the goods bought by him. After the defendants had received the draft and the man had gone away, they sent the draft with their book-keeper to the bank at its opening at ten o’clock, showed it to the paying-teller and asked if it was good ; the teller said it was ; he asked the book-keeper if he knew the signature “ M. R. Rizer &Bro.the book-keeper replied, that defendants would take care of that. Some time in the after part of that day the defendants endorsed the check and deposited to their, credit with the plaintiff. Their check to M. R. Rizer & Bro. for $1741.50 was drawn out and charged to defendant’s account; the whole of the amount of the draft was drawn from the defendant’s account. The draft itself was genuine; it had been stolen from the mail and Mr. Jordan’s name on it forged.
    The case was tried March 31st 1873, before Thayer, J.
    In addition to the facts in the foregoing statement, there was evidence that on the 2d of November 1868, the receiving-teller of the plaintiff presented the draft to the defendants and demanded payment; the defendants refused; there was evidence also that the drafts drawn by one bank on another payable to a third, rarély get into private hands; that New York banks usually endorse by a printed stamp in blank, to be filled up in writing with the name of the endorsee and the signature of the cashier, part of the printing being, “for collection;” also that when the draft was shown by defendants’ book-keeper to the teller and asked whether the draft was good, the teller said, it was good if defendants would take the risk of M. R. Rizer & Bro., and that the book-keeper said if the draft was good they would take the risk of the Rizers ; that after the book-keeper told the defendants that the draft had been pronounced at bank good, the defendants endorsed it and directed him to deposit it with other drafts with the plaintiff. On the 5th of November defendants were informed that the draft had been stolen and the endorsement forged; they then took the $1741.50 check, which had been returned to them on the settlement of their bank book, and told the teller that the check had been paid on a forged endorsement, and they declined to have it counted in their settlement. There was evidence also that such drafts sometimes got into private hands.
    The following five points of defendants were refused::—
    1. If the jury find that, at a time when notice to the defendants of any cause of suspicion in connection with the draft in evidence would have prevented loss to them, it was presented to the paying teller of the plaintiffs by the defendants, to ascertain whether it was good, and that he, though there was that in the character of the draft, and of the first endorsement thereon, which was calcu- . lated to excite his suspicion, did not mention that fact to the defendants, but said the draft was good if the defendants would take care of M. R. Rizer & Bro., and that relying on the information, defendants trusted the person claiming to be one of the Rizers, delivered the goods sold to them, and permitted the check for $1741.50 to be drawn, the plaintiffs cannot recover.
    2. If the jury find that the endorsements of M. R. Rizer & Bro. on the draft and on the check were made by the same person, and that both were genuine, the assurance of the paying teller that the draft was good if the defendants would take care of Rizer & Bro., prevents their recovery in this ease. If they find that both of said endorsements were forged, the plaintiffs cannot recover the $1741.50 paid out on a forged endorsement.
    3. If the jury find that the endorsement of Mr. Jordan’s name on the draft was not made in the usual manner, and that the draft itself was of a character very rarely put in circulation or received from private hands, it was negligence on the part of the bank to receive it without inquiry or remark, and the plaintiffs cannot recover.
    4. If the plaintiffs gave no notice to the defendants that the endorsements on the draft were forged till sixteen days after it was deposited with them, the jury may, under the evidence, find that they were guilty of negligence, and, if the defendants were injured thereby, may find for them.
    5. There is evidence from which the jury may find negligence on the part of the plaintiffs, which will relieve the defendants from liability to them, if the jury also find that such negligence led to the loss which will arise if the plaintiffs should recover in this case.

      The sixth point was:—
    If the plaintiffs are right in their allegation that the endorsements on the draft, which is in evidence, were forgeries, and that the amount of the draft did not properly go to the credit of defendants, this is, in effect, an action to recover hack an overdraft, and, if the amount claimed was paid out on defendants’ check, the plaintiffs must, before they can recover, show that the party to whom it was paid had title to the check, and that it was properly endorsed by the payee.
    The court answered: If the check was paid upon a forged endorsement, by the plaintiffs, they paid it in their own wrong.
    The seventh point was affirmed. It was : If the overdraft resulted from the payment, by the plaintiffs, of the check of defendants to a person who claimed under a forged endorsement, they cannot recover the amount so overdrawn.
    The court, amongst other things, further charged: — * * * [“ The defendants seek to rid themselves of the liability of paying back the amount of the draft by setting up negligence on the part of the plaintiffs. It would not, under the Act of Assembly, have made any difference if the paying teller had done what the defendants allege. The endorsement of Chambers & Cattell was an absolute guarantee of the genuineness of all prior endorsements. If the case ended here, I do not see how the defendants could escape liability.”] * * *

      “ The case does not end here, but a portion of the sum for which the defendants received credit was drawn out by means of the check for $1741.50 in favor of M. R. Rizer & Bro., and if the jury find that the endorsement of their name on said check was a forgery, and that it was paid by the bank to a person not a member of the firm of M. R. Rizer & Bro., and not authorized by them to receive payment, such payment was void, and the verdict, to that extent, should be for the defendants. In other words, if the endorsement of the payee’s name on the check was a forgery, the plaintiffs cannot charge the check to the defendants, for they were only justified in paying upon a. genuine endorsement of M. R. Rizer & Bro.”
    The verdict was for the plaintiff for $2535. The defendants took a writ of error, and assigned for error the answer to their six points and the part of the charge in brackets.
    The Act of 5th April 1849, Pamph. L. 420, 1 Br. Purdon 159, pi. 5, enacts that wherever any value shall be received as a consideration for, or in payment of, any bill of exchange, draft, check, promissory note, or other negotiable instrument, by the holder thereof, from the endorsee or payer of the same, and the signature of any person represented to be a party thereto, whether as drawer, acceptor or endorser, shall have been forged thereon, and such value, by reason thereof, erroneously given or paid, such endorsee or payer respectively shall he entitled to recover back from the person previously holding or negotiating the same the amount so, as aforesaid, given or paid by such endorsee or payee to such person, with lawful interest thereon from the time of demand of repayment.

      E. S. Miller, for plaintiffs in error.
    Can the action, under its circumstances, be maintained under the Act of 1849 ? In the case of Levy v. Bank of the United States, 1 Binn. 27, it was held, that where a bank pays a forged check, it cannot recover it back, because it is presumed to know the handwriting of the drawer. The Act of 1849 was passed to remedy the effect of this decision, but does not apply when the parties are equally innocent: Bayard v. Shunk, 1 W. & S. 92 ; or where there is negligence on the part of a bank, &c., in paying: Roth v. Crissy, 6 Casey 145; Rick v. Kelly, Id. 527 ; Corn Exchange Nat. Bank v. Nat. Bank of the Republic, postea, p. 233. An officer of the bank said the draft was good; this was evidence on which to base an estoppel: Elliott v. Callan, 1 Penna. R. 24; McMullin v. Wenner, 16 S. & R. 18. The delay in informing defendants of the forgery was too great: Thomas v. Todd, 3 Hill 341; Gloucester Bank v. Salem Bank, 17 Mass. R. 33.

      0. Gilpin, for defendant in-’error,
    cited Tradesmen’s Bank v. Third National Bank, 16 P. F. Smith 435.
   Judgment was entered in the Supreme Court, April 2d, 1875,

Per Curiam.

We discover no error in this case. The draft of the First National Bank of Warsaw, Indiana, on the Union National Bank of Philadelphia, never having reached the hands of C. J. Jordarf, ,the payee, it is evident the time lost before the discovery of the forgery of his signature was owing to no fault of the Union National Bank. Notice was given by it to Chambers & Cattell as sooii as a knowledge of the fact came to the officers of the bank. In regard to the endorsement of Jordan, it is to be noticed it was a signature in the line of the title of Chambers & Cattell. The presumption is that the drawee of a bill is acquainted with the signature of the drawer, his own correspondent, and, therefore, a voluntary payment to a bond fide holder for value cannot be recovered back. So the law was before the Act of 5th April 1849, 16 P. F. Smith 435. But surely the drawee is not to be supposed to know all the endorsements on the bill down to that of him who presents it for payment. There might be half a dozen endorsements of distinct persons entirely unknown to the bank, and certainly the holder must guaranty them to the bank, and not vice versa. We see no error in the way the cash was submitted to the jury. Judgment affirmed.


text:
    Bond versus Bunting.
    1. To perfect a gift, the deliveiy must be according to the nature of the thing, an actual delivery, so far as the subject is capable of it, and be the true and effectual way of obtaining the command and dominion of the subject.
    2. If the thing be not capable of actual delivery, there must be some act equivalent to it; the owner must part both with the possession and dominion of the property.
    3. If the thing be a chose in action, an assignment or some equivalent instrument must be actually executed.
    4. Wherever a party has power to do a thing and means to do it, the instrument he employs shall be so construed as to give effect to his intention.
    5. The provisions of the Married Woman’s Act, April 11th 1848, are confined to powers given to her husband to sell and dispose of her real and personal property.
    6. A wife may assign her choses in action, her husband joining, without acknowledgment of any kind.
    7. Haffey v. Carey, 23 P. IT. Smith 431, followed. Kennedy v. Ware, 1 Barr 445; Licey v. Licey, 7 Id. 251, compared.
    March 30th 1875.
    Before A&new, C. J., Siiarswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: No. 136, to July Term 1873.
    This proceeding was commenced August 27th 1872, in an action of assumpsit, by Martha W. Bond against the Mutual Benefit Life Insurance Company, on a policy of insurance, not under seal, dated January 26 th 1870, issued by the defendants to Mrs. Bond, the plaintiff; the insurance ivas for $10,000, on the life of her husband, John R. Bond,'payable to her in ninety days, after due notice to the defendants of the death of the husband.
    On the 28th of December 1871, a paper was executed, purporting to be under the hands and seals of John R. Bond and Martha W. Bond, assigning to Henry B. Bunting in trust for “ James H. Bond and Jane S. Bond, children of the said John R. Bond (the amount of the policy), over the sum of $5600, which the said Martha W. Bond reserves for herself and for her own use, and subject to the payment pro rata of the funeral expenses,” &c. The signature of John R. Bond was by his mark.
    James H. Bond died on the day after the execution of this assignment.
    The policy remained in the possession of Mrs. Bond.
    On the 5th of January 1872, notice of the assignment with a copy of it was served on the insurance company.
    On the 24th of the same month, Mrs. Bond furnished the company proof of her husband’s death, and stated to them that she had been informed that a portion of the insurance money was claimed by an alleged assignment from her; she notified the company not to pay to any one but herself.
    On the petition of the company, a rule was granted for the parties in interest to interplead, and the court directed the corapany to pay the insurance money into court. The court awarded the issue between Henry B. Bunting, trustee of James H. Bond, and Jane S. Bond, as plaintiff, and Martha W. Bond, defendant.
    The questions in the issue were:—
    1. Whether a paper, purporting to he an assignment of a portion of the policy of insurance on which the above suit has been brought, dated December 28th 1871, and to be signed by John R. Bond by making his mark thereto, was in fact so signed by him.
    2. Whether, if so signed, the said John R. Bond so signed the same under the pressure of undue influence.
    3. Whether, if so signed, the said John R. Bond, at the time of so signing, had sufficient mental capacity to understand the nature and consequences of the act of signing.
    4. Whether Martha W. Bond, at the time of signing the same, had sufficient mental capacity to understand the nature and consequences of the act of signing.
    5. Whether Martha W. Bond signed the same under the pressure of undue influence.
    6. Whether there was any consideration for an assignment of any portion of said policy.
    7. Whether there has been any assent by the Mutual Benefit Life Insurance Company to any assignment of any portion of said policy.
    The issue was tried May 28th 1873, before Lynd, J.
    A large amount of testimony was heard on the questions, whether the husband had in fact signed the assignment; if so, whether he and his wife had sufficient understanding when they signed, and whether they signed it under the pressure of undue influence.
    The first five issues were found for the plaintiff in the issue; the sixth and seventh were found for the defendant; the jury, as to the sixth, finding also that the consideration moving from John R. Bond was affection for his children, and that Mrs. Bond, the defendant, received no pecuniary consideration.
    The plaintiff moved for judgment on all the issues.
    The District Court entered judgment for the plaintiff, Hare, P. J., delivering the opinion as follows:—
    “This case originated in the following circumstances: in the year 1870, Mrs. Martha Bond insured the life of her husband, John R. Bond, for the sum of $10,000, in the Mutual Benefit Life Insurance Company of New Jersey. She subsequently joined him in executing an instrument under seal, by which the amount insured above the sum of $5000, was assigned and set over to one Henry Bunting, in trust for her husband’s children, who are alleged to be the offspring of a former marriage. This was not the conduct of a stepmother; but when her husband’s influence was removed by death, she challenged the right of the trustee to the fund. The money was paid into court, and an issue framed and submitted to a jury, who found that the only consideration for the transfer was the affection which John R. Bond bore to his children. It is proper to add, that the trustees had notice of the assignment — a circumstance which might be material in England, but seems to be of no moment in Pennsylvania. We have now to determine the validity of the assignment, with the aid of the light derived from this verdict.
    “ It is obvious^jrom what has been said, that the case involves two inquiries.NTs a voluntary assignment of a chose in action, which does-not pass the legal title, effectual as an equitable transfer Jj Can a married woman dispose of her personal property, without a separate acknowledgment ?
    “ Those who are conversant with such studies, know that the former question has been the subject of a protracted controversy, which is not yet terminated. It was long held, that where an assignment without a -valuable ^consideration was legally inoperative, it could not be upheld in equity: Kennedy v. Ware, 1 Barr 445. The presence of a seal made no difference in the application of the principle: Ellison v. Ellison, 6 Vesey 658; Ward v. Audland, 8 Beavan 20. If the instrument was so worded as to confer a right of action in debt or covenant, the plaintiff would not be restrained by an injunction. If it was not, the want of a legal remedy did not afford a ground for equitable relief. In either case, the chancellor suffered the law to take its course.
    “The rule, as stated by Lord Eldon, in Ellison v. Ellison, is, ‘ that if you want the assistance of the court to constitute you cestui que trust, and the instrument is voluntary, you shall not have that assistance for the purpose of constituting you cestui que trust, as, upon a covenant to transfer stock, &c., if it rests in covenant, and is purely voluntary, this court will not execute that voluntary covenant. But if the party has completely transferred stock, &c., though it is voluntary, yet the legal conveyance being effectually made, the equitable interest will be enforced by this court.’ A grant which fails of effect at law, is a covenant in the sense of this distinction. In Ward v. Audland. Lord Langdale said: ‘ If the property was legally vested in the plaintiff, he might have recovered it at law, and applied it on the trusts; if the property was not legally and effectually vested in the plaintiff, then, as the deed was voluntary, this court could afford no assistance to the plaintiff in recovering it; and, under these circumstances, the only question between the parties is, what is the legal effect of the assignment? * * * The debt and policy of assurance are choses in action not assignable at law, and it is plain that the whole estate and interest of the assignor did not and could not pass to ,an assignee; and I apprehend that, in the case of a voluntary deed, neither the assignor nor his executor could’ have been compelled to permit the assignee to use his name for the recovery of the debt.’ So in Meek v. Kettlewell, 1 Hare 474, the vice chancellor was clearly of opinion, that an assignment under seal of that which did not pass at law by the operation of the assignment itself, unaccompanied by other acts, was no better than a covenant or agreement to assign. It was by treating a deed which failed of effect as a covenant, that chancery was enabled to give relief through a decree for specific performance: Chew v. Barnet, 11 S. & R. 389; Bayler v. The Commonwealth, 4 Wright 37. Hence it followed, that where the grantor received no consideration, and the obligation was merely gratuitous, the grantee was left to find such remedy as he could at law.
    “ This course of decision seems to have been well founded in the peculiar doctrines of equity and the relation which they bore to the common law. It can hardly be vindicated on the broad principles of jurisprudence. It is a general rule, that he who owns, shall have the power to dispose. The jus disponendi should not be withheld except for some sufficient cause, and on special grounds. What, if anything, the grantor receives as an equivalent, concerns him, and not society at large. The right to give is consequently as clearly incident to the right of property as the right to sell. Choses in action are as much within the scope of this principle as lands or chattels;. and yet, as they cannot be legally assigned, the refusal of equity to aid voluntary transfers rendered it impossible to give a chose in action. The effect was to impose an arbitrary restraint on alienation, which was not unfrequently attended with injurious consequences. A large amount of property is locked up at the present day, in bonds, stocks, and other evidences of debt. A capitalist might count his wealth in these by thousands, and yet find it difficult to provide for a friend or relative. It was easy to give a house or chattel, but if he attempted to bestow a debt, there was an unexpected obstacle. A demand might be sold, or pledged, or released, but it could not be the subject of a voluntary transfer. If the donor was versed in the law, he might obviate the difficulty by collecting the money, and investing it in the name of the beneficiary. But this required time and more knowledge than is ordinarily possessed. It was, moreover, impracticable where, as in the case of a policy of insurance, the debt was payable at a future day and contingent.
    “ The evil was so obvious, that there was a constant effort to escape from it. A chose in action could not be assigned without a valuable consideration, but where a trust exists, it may be enforced, though in favor of a volunteer. Hence an inference, that where a man declared that he held assets which belonged to him in trust for a volunteer, it was a valid gift. If, said Lord Cranworth, ‘ I say expressly or impliedly that I constitute myself a trustee of personalty, that is a trust executed and capable of being enforced without considerationand the doctrine was applied in numerous instances to choses in action.
    “ It is not easy to find any sufficient ground for this distinction.
    “It was established, at an early period, that the transfer of the legal title, in trust, for a third person, would vest the beneficial interest in the latter. Such was the origin of uses, and, subsequently, of trusts. A declaration of trust, under these circumstances, substantiates the existence of a duty which would be obligatory, independently of the declaration. But it does not follow that an admission can give rise to a fiduciary obligation where none exists. ‘ The ordinary power of a chancellor,’ said Gibson, C. J., in Read v. Robinson, 6 W. & S. 329, ‘extends no further than the execution of a trust sufficiently framed to put the title out of the grantor, or to the execution of an agreement for a trust founded on a valuable consideration,’ and the language of the same judge, in Morrison v. Beirer, 2 W. & S. 86, shows that he regarded a declaration of trust as inoperative where it does not rest on an antecedent obligation.
    “ In this uncertainty we may revert to principles. A declaration of trust by the owner of property in favor of a volunteer, has no peculiar efficacy. It is simply a gift, which derives its force from the will of the donor. As applied to land, it is, consequently, invalid, if not under seal; and perhaps even then, unless the estate lies in grant. Where the law prescribes the mode of conveyance, it must be followed. When, however, there are no legal means of transfer, any words expressing an intention to confer a present interest, may be effectual in equity. There can be no clearer manifestation of a design to part with the right of property in favor of another, than an absolute assignment to him or for his use. The notion that a gift, which would be valid if made through a declaration of trust, will fail if put in the form of an assignment, was accordingly repudiated in Richardson v. Richardson, Law Rep. 3 Eq. 686.
    “ The question Avas, whether the beneficial interest in certain promissory notes passed by a voluntary assignment of all the donor’s personal estate. She did not endorse the notes, and the legal title consequently remained in her. The chancellor said that it was impossible to contend, after the decision in IiekeAvich v. Manning, 1 De Gex, Mac. & G. 176, that the beneficial interest did not pass by the assignment, because ‘ the decision in that case was not merely that a person who, being entitled to a reversionary interest or to stock standing in another’s name, assigns it by a voluntary deed, thereby passes, notwithstanding that he does not, in formal terms, declare himself to be a trustee of the property; but it amounts to this, that an instrument executed as a present and complete assignment, is equivalent to a declaration of trust.’
    “ Here, as in Kekewich v. Manning, the instrument was under seal, but the ratio decidendi was broad enough to include an assignment by parol. Accordingly where the donor signed and delivered the following memorandum to his physician : ‘ I hereby give and make over to Dr. Morris an India bond, number D. 506, value 10007, as some token for his kind attention to me during illness;’ Lord Romilly said, ‘ the writing is equivalent to a declaration of trust. If the donor had said : “ I undertake to hold the bond for you,” that would have been a declaration of trust, though there had been no delivery. This amounts to the same thing, and Dr. Morris is entitled to the bond:’ Morgan v. Millison, Law Rep. 10 Eq. 475.
    “ The decisions have advanced, step by step, to this conclusion, which is now established in England. The case of Kennedy v. Ware may be thought to indicate that it does not prevail in Pennsylvania. I have endeavored to show that the English authorities, on which Chief Justice Gibson relied, have been overruled. If' this were a court of error, our course would be clear. As a tribunal of the first instance, we ought to adhere implicitly to the rulings of the court above. If the case of Kennedy v. Ware, were identical with this, it would control our judgment. The assignment there was by parol. Here it is under seal. The difference seems to be immaterial, according to the authorities, but it affords room for a doubt. There is another consideration. The fund is given in trust for Jane and James S. Bond. They are described in the instrument as the children of John R. Bond. If they are also Mrs. Bond’s, there is a meritorious consideration arising from a-tie of blood. It seems that equity will give effect to a provision for a wife or child, though not for a collateral relation : see Hayes v. Kershaw, 1 Sandford Oh. 258; Buford v. McKee, 1 Dana 107; Dennison v. Goehring, 7 Barr 175; Kennedy v. Ware, 1 Id. 445. It was alleged-during the argument that these were Bond’s children by a former wife, but this does not appear of record. On the whole, we deem ourselves entitled to uphold the assignment.
    “ The other branch of the ease is hardly less obscure. At common law a married woman had no power to dispose of her personal estate. The right of alienation belonged to her husband, and could only be exercised by her as his agent. The act of 1848 provides, that the property of a feme covert shall not be sold, mortgaged or transferred, or in any manner encumbered by her husband, without her written consent first had and obtained before one of the judges of the Court of Common Pleas of this Commonwealth. Whoever drafted this act seems to have forgotten that disabling the husband does not enable the wife. The act forbids him to transfer without her written consent, &c., but it provides no means by which she can alienate. The result was a painful uncertainty, which the lapse of twenty-five years, and an exhaustive judicial investigation, have not removed. In Moore v. Cornell, 18 P. F. Smith 820, Sharswood, J., said that the great object of the statute was to secure the property of a married woman against her husband and his creditors. It did not confer upon her any power or capacity which she did not possess before, except that of making a will, and of binding her estate by a contract for necessaries. It had accordingly been held, in Stoops v. Blackford, that an assignment of a mortgage by a married woman is invalid, unless her husband joins in the instrument, and it is authenticated by her separate acknowledgment. It was said, in the course of the same opinion, that a mortgage, though in form a conveyance of land, is substantially a security for a debt. It is personal property — a chose in action — and whatever gives the money secured by the mortgage, will carry the security along with it.
    “ It might be inferred from this language, that the transfer of a wife’s personal property requires not only the concurrence of her husband, but' an acknowledgment in accordance with the Act of 1848, as modified by that of April 9th 1849.
    “ Such a rule would render it impracticable for a married woman to dispose of her stocks and furniture, or even to make the smallest present, without calling in a justice of the peace or notary public. Nay, more, the restriction would extend to purchases, because it is impossible to buy without giving an equivalent. It has not been imposed in terms, and we may believe that the court above will do some gentle violence to the Act of 1848, rather than adopt a conclusion fraught with injurious consequences. The judge who delivered the opinion in Moore v. Cornell, has shown in other instances, with his wonted clearness, that if a mortgagee is a creditor, he is something more. He is an owner, who may enter and take rents and profits, until the debt is satisfied. Hence, a transfer of his interest may be acknowledged and recorded; a mode of authentication which would be inappropriate in the case of a chose in action. The result is, that according to the best consideration that we have been able to give to the subject, the ti’ustee is entitled to the fund transferred by the assignment.”
    The defendant, Mrs. Bond, took a writ of error; she assigned for error:—
    6. Not entering judgment for the defendant.
    7. Deciding that the partial assignment of the policy of insurance by John R. Bond and Martha, his wife, without the separate acknowledgment of the wife under the Act of 1848, was sufficient to pass her interest in the said policy to the extent of the assignment.
    8. Deciding that the assignment created a valid and binding trust in Henry B. Bunting as trustee, enforcable against the said Martha W. Bond.
    9. Deciding that the assignment, though without valuable consideration, was sufficient to bar the right of the said Martha W. Bond to the portion of the said policy intended, to be transferred by the said assignment.

      * O. S. Gross (with whom was T. J. Barger), for plaintiff in error.
    —The Married Woman’s Act of April 11th 1848, Pamph. L. 586, 2 Br. Purd. 1005 et seq., does not change the common law so as to enable her to convey or contract in regard to her property as a feme sole: Petit v. Fretz, 9 Casey 119; Bear v. Bear, Id. 525; Peck v. Ward, 6 Harris 506 ; Ulp v. Campbell, 7 Id. 361 ; Thorndell v. Morrison, 1 Casey 326 ; Glidden v. Strupler, 2 P. F. Smith 400 ; Graham v. Long, 15 Id. 383. The contracts and bonds of a married woman are absolutely void: Caldwell v. Walters, 6 Harris 82; Glyde v. Keister, 8 Casey 85; Keen v. Coleman, 3 Wright 299 ; Keiper v. Helfricker, 6 Id. 325 ; Steinman v. Ewing, 7 Id. 63. A mortgage of wife’s property to secure the husband’s debt, to be properly acknowledged, must be according to the provisions of the Act of 1848: Black v. Galway, 12 Harris 18 ; Lytle’s Appeal, 12 Casey 131. So, of assignments of mortgage by married women : Stoops v. Blackford, 3 Casey 213; Moore v. Cornell, 18 P. F. Smith 320; Jamison v. Jamison, 3 Whart. 457. There having been no valuable consideration for the assignment of a portion of the policy, the assignment was but an imperfect gift, and no perfect trust was created, such as equity will enforce at the suit of a volunteer: Antrobus v. Smith, 12 Vesey 39; Edwards v. Jones, 1 Myl. & Cr. 226 ; Dillon v. Coppin, 4 Id. 647; Searle v. Law, 15 Sim. 95; Ward v. Audland, 8 Beav. 201; Beatson v. Beatson, 12 Sim. 291; Meek v. Kettlewell, 1 Hare 464 ; Kennedy v. Ware, 1 Barr 445; Jeffreys v. Jeffreys, Cr. & Ph. 138; Campbell’s Estate, 7 Barr 100. Partial assignment of a debt will not bind the debtor either in equity or law, nor deprive him of the right to pay the whole to the assignor after notice that part has-been transferred to the assignee: Robbins v. Bacon, 3 Greenl. 346 ; Palmer v. Merrill, 6 Cush. 282 ; Hopkins v. Beebe, 2 Casey 85, 88 ; Gibson v. Finley, 4 Md. Ch. 75.

      T. J. Diehl, for, defendant in error.
    The acknowledgment required by the Act of 1848, applies only to property (evidently real estate) sold, conveyed, mortgaged or transferred; or in any manner encumbered by her husband, and does not apply to her gift, assignment or other disposition of her personal property by an instrument in which he joins : Persch v. Quiggle, 7 P. F. Smith 257; Selden v. The Merchants’ National Bank of Meadville, 19 Id. 424; Hinney v. Phillips, 14 Wright 386 ; Haffey v. Carey, 23 P. F. Smith 431.
   Mr. Justice Sharswood

delivered the opinion of the court, May 10th 1875.

The verdict of the jury on the questions submitted to them in the feigned issue, leaves nothing to be reviewed but the points discussed in the able opinion of the learned president of the court on the motion for judgment. ,

It is not easy to reconcile Kennedy v. Ware, 1 Barr 445, with the subsequent case of Licey v. Licey, 7 Barr 251, in which it was held that delivery of a bond to a stranger passed the right to the debt as a gift. Chief Justice Gibson is reported in the ,latter case to have remarked, when Kennedy v. Ware was cited, there is a distinction between a gift and an assignment; the latter is only available in equity and will only be enforced so far as there is a consideration.” But is not a gift an assignment, perfected by a delivery which debars the donor from revocation, and must not the donee of a bond so given sue upon it in the name of the donor ? So he admitted when he came to pronounce the judgment. “ Such a gift would be inoperative at law, for as a bond is not negotiable the legal title would pass only by an observance of the formalities prescribed by the statute; but on the principle of Cross v. Powel, and the authorities already quoted, it would pass the equitable ownership.” That principle, as the chief justice states it, was that if a bond delivered to the obligor to be cancelled, but not cancelled, come again to the hands of the obligee, though valid at law, the obligor will be relieved in equity. His other authorities abundantly show that a bond delivered to be cancelled without consideration, and actually cancelled, is at an end both in law and equity. But all this serves to confirm the doctrine enunciated by Chancellor Kent, in regard to the delivery necessary to perfect a gift. “ Delivery in this, as in every other case, must be according to the nature of the thing. It must be an actual delivery so far a.s the subject is capable of delivery. It must be secundum subjectam materiam, and be the true and effectual way of obtaining the command and dominion of the subject.yTf the thing be not capable of actual delivery, there must be some act equivalent to it. The donor must part not only with the possession, but with the dominion of the property. If the thing given be a chose in action, the law requires an assignment or some equivalent instrument, and the transfer must be actually executed:” 2 Kent Com. 439. To hold otherwise would be in effect to decide that the owner of a chose in action not evidenced by a note, bond or other instrument, could not make a gift of it, which would be an unreasonable limitation of his right of property. There was a very good reason in the case before us for the non-delivery of the policy, because, being for $10,000, the donor retained the sum of $5600, and the whole was to be subject to the payment pro rata of the funeral and other expenses incurred in the last illness of John R. Bond. Taking the instrument to be not an assignment, but a covenant to allow the covenantee to use the name of the covenantor to recover the money for the use declared, the seal at law imported a consideration.

There is, then, a distinction between this case and Kennedy v. Ware, which- was the ease of a parol assignment of a judgment without a delivery or anything which the law holds equivalent to it.

It is certainly the tendency of all the modern authorities to maintain the general doctrine which may indeed be stated as a formula, that wherever a party has the power to do a thing (statute provisions being out of the way), and means to do it, the instrument he employs shall be so construed as to give effect to his intention. It is but the application of the old maxim, interpreta,tio chartarum benigne faeienda est ut res magis valeat quam pereat— quando res non valet ut ago valeat quantum valere potest. It cannot he doubted that Mr. and Mrs. Bond could by a declaration under seal have constituted themselves trustees for the purpose set forth in the statement, and why, if it cannot for want of consideration operate as a good equitable assignment, may it not be effectual as declaration of trust ? The later English authorities certainly sustain the learned president below in his opinion upon this point, and they have been recognised in this court in a recent judgment, though the case was not one which justified their application: Helfenstein’s Estate, 27 P. F. Smith 328.

The remaining question presents no serious difficulty. The provisions of the Married Woman’s Act requiring an acknowledgment by the wife, is confined by its terms to powers given by her to her husband to sell and dispose of her property, real or personal: Haffey v. Carey, 23 P. F. Smith 431, and cases there cited. It follows, that she may assign her choses in action, her husband joining in the act of disposition, without acknowledgment of any kind; nor is any change made by the Act of May 14th 1864 (Pamph. L. 158), which was evidently only intended to quiet a doubt upon the subject. The assignment of a mortgage stands upon a different footing. It is not a mere chose in action, hut also a conveyance of the real estate. The mortgagee is a purchaser within the statute of Elizabeth, and the recording acts apply to him. Judgment affirmed.