author: Mr. Justice Mercur

text:
    Hindman’s Appeal.
    1. In this country a person’s domicile is that place in which he has fixed his habitation, without any present intention of removing therefrom.

      % A mere intention to remove permanently without an actual removal works no change of domicile; nor does a mere removal from the state without an intention to reside elsewhere. But when a person sells all his land, gives up all his business in the state in which he has lived, takes his movable property with him and establishes his home in another state, such acts prima facie prove a change of residence. Vague and uncertain evidence cannot remove the legal presumption thus created.
    3. The determination of domicile depends not upon proving particular facts, but whether all the facts and circumstances, taken together, tending to show that a man has his home or domicile in one place, overbalance all the like proofs tending to establish it in another.

      4. Where an auditor reports facts directly proved by the witnesses liis report is entitled to great weight; but when the fact is simply a deduction from other facts reported by him, his conclusion is the result of reasoning and is subject to revision and correction by this court if error is discovered therein.
    November 12th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeal from the Orphans’ Court of Washington county: Of October and November Term 1877, No. 64.
    This was the appeal of Samuel Hindman, administrator of the estate of George Hindman, deceased, from the decree of the court confirming the report of the auditor appointed to make distribution of the estate of said decedent.
    The facts will be found fully stated in the opinion of this court.
    The only question raised by the assignments of error was that of the domicile of George Hindman at the time of his decease, which the auditor found was in Virginia, and accordingly reported that the distribution of the estate should bo made in conformity with the intestate laws of that state. This report the court, Acheson, P. J., confirmed, and from this decree this appeal w'as taken.

      D. F. Patterson and John A. Campbell, for appellants.
    — While the findings of fact by an auditor will only be set aside for plain error, yet when his conclusions are supported by false deductions from the facts this court will review and correct the error: Phillips’s Appeal, 18 P. F. Smith 130. The facts found by the auditor, and set out in his report, clearly show that there was no question before him involving the credibility of witnesses, and hence no peculiar weight is to be attached to his finding.
    As to what is domicile : Story’s Conflict of Laws, § 43; Carey’s Appeal, 25 P. F. Smith 205; Guier v. O’Daniel, 1 Binn. 349; Bruce v. Bruce, 1 American Leading Cases 890; Ennis v. Smith, 14 Howard 423; 20 Curtis 263.
    What constitutes a change of domicile: Guier v. O’Daniel, supra; Evans v. Smith, supra; Greene v. Windham, 13 Maine 225 (1 American Leading Cases 889); Sears v. The City of Boston, 1 Metc. 250; Inhabitants of Wilbraham v. Inhabitants of Ludlow, 99 Mass. 587; Harris v. Firth, 4 Cranch C. C. 710; Inhabitants of Hampden v. Inhabitants of Levant, 59 Maine 557; Carey’s Appeal, supra.

    The declarations of the decedent are not competent evidence upon the question of his abandonment of his West Virginia domicile, except such declarations as accompanied and characterized the act of removal. The weight to be given to such declarations depends altogether upon circumstances. If the acts of the party are in manifest conflict with his declarations, his intention must be determined by his acts : Butler v. Farnsworth, 4 Wash. C. C. 101; Butler v. Hopper, 1 Id. 499; Holmes v. Greene, 7 Gray 297; Bruce v. Bruce, supra; Carey’s Appeal, supra; Story’s Conflict of Laws, § 45.

      Braden & Miller, for appellee.
    — Domicile is a question of intention. Our courts in this country have all held substantially that we may travel from state to state, staying as long as we desire in each, without losing our domicile, provided we do not intend to become citizens of the states visited. The question is one of fact, not of law. West Virginia was the domicile of the decedent’s origin, and it must be regarded as his domicile until he has acquired another; not only acquired another, but manifested and carried into execution an intention of abandoning his original domicile, and taking that other as his sole domicile: 2 Williams on Ex’rs 1086 (ed. 1841); Somerville v. Somerville, 5 Vesey 787; Guier v. O’Daniel, supra.

   Mr. Justice Mercur

delivered the opinion of the court, January 7th 1878.

All the assignments of error relate to the question of the place of George Hindman’s domicile, at the time of his death; they will therefore be considered together. Vattel defined domicile to be a fixed residence, with an intention of always staying theré. This definition is too limited to apply to the migratory habits of the people of this country. So narrow a construction would deprive a large proportion of our people of any domicile. The better definition is, that place in which a person has fixed his habitation, without any present intention of removing therefrom: 1 Bouv. Law Die. 499 ; Story’s Confl. of Laws, § 43; Putnam v. Johnson et al. 10 Mass. 488; Greene v. Windham, 13 Maine 225; Carey’s Appeal, 25 P. R. Smith 201.

The evidence in this case shows that George Hindman was born in Brooke county, West Virginia, where he resided till 1869. Then he moved on a farm which he had purchased in Hancock county, of the same state. There he resided until March 1871. He then sold his farm, which was all the real estate he owned, and went to live with his brother-in-law, McOlurg, in Washington county, Pennsylvania. He never married, and had no family. His property was all in personal estate. He took with him a horse, a box containing- his notes, bonds and valuable papers. Soon afterwards he brought his other horse to McClurg’s, leaving in Virginia only some farming implements of little value. He continued to live with McOlurg, paying his board, and there made his home until April 187.2. He then went to live with Gibson, another brother-in-law, in Washington county, taking with him his box, a bureau, clock and table. There he continued to live until the time of his death, 22d June 1872. All these facts appear by the evidence and by the auditor’s report, and are uncontradicted. Although he thus resided, and made Ms home in this state for about fifteen months, and died hero, yet the auditor and court below, found that he was domiciled in West Virginia at the time of his death. They appear to have reached this conclusion, from his declarations made while he was residing in Pennsylvania.

The evidence shows that after he thus removed from West Virginia, he at different times made visits to friends in that state, yet he always returned to the room which he retained at the house of his brother-in-law in Pennsylvania. Here was his property and his home. He had no house, no residence, no property, no family in the state from which he had moved. When he sold the farm on which he had lived, he gave up possession and removed therefrom. He thereby gave up that domicile. He then made no new abode, and established no other residence in that state. He gathered up his property, and with it departed, and located in another state. This unequivocal act of moving from the state and taking up his residence in another state, is very strong evidence of the establishment of a domicile in the latter. Its effect is not destroyed by his expressed and indefinite intention to go back into West Virginia at some future time and there buy land. Nothing less than a present intention to retain his domicile there would prevent its transfer to the state into which he moved. He did not come into Pennsylvania for his health, or as a traveller, nor for any other particular business of a temporary nature. No person can have more than one domicile at the same time in regard to succession to personal property: Abington v. North Bridgewater, 23 Pick. 170.

It is true that a domicile once gained remains until a new one is actually acquired, facto et ammo ; Story on Conflict of Laws, § 47. The fact and intention must concur, yet the former may prove the latter. A mere intention to remove permanently, without an actual removal, works no change of domicile; nor does a mere removal from the state, without an intention to reside elsewhere. But when a person sells all his land, gives up all his business in the state in which he had lived, takes his movable property with him and establishes his homo in another state, such acts prima fiicie prove a change of domicile. Vague and uncertain evidence cannot remove the legal presumption thus created Story on Conflict of Laws, § 46; Wilbraham v. Ludlow, 99 Mass. 587; Harris v. Firth, 4 Cranch C. C. 710.

The evidence of Hindman’s declarations shows he had a fickle and uncertain mind. Sometimes he expressed an intention to buy a farm in Brooke county, at other times, in Hancock county, then in Washington county ; sometimes complaining of the collateral inheritance tax of Pennsylvania, and declaring that he did not want to become a citizen of this state, but vs ould go back and make Virginia his home, and that he never intended to pay any tax in this state. He refused to bo assessed or registered, and did not vote in Pennsylvania. It, however, does not appear after he moved here, that he was either assessed or registered in West Virginia, or voted there. Soon after paying his taxes, the 1st of November 1871;, assessed against him in Virginia prior to his sale, he said to Gardner it was the last tax he ever expected to pay in Virginia, and soon thereafter declared he did not want land, as he could do better with his money than by farming. Again, in January 1872 he said to Samuel Hindman that he wanted no more land, and would make his home in Pennsylvania. After this he again talked of buying land in Virginia. Without giving more of the evidence in detail, the whole of it tends to show that he gave up his domicile in West Virginia and acquired one in Pennsylvania,; that at first he intended to purehasé a farm, and wherever that should be, to go and reside on it. While he talked of purchasing in each state, yet his preference appeared tobe in favor of one.in Virginia. He seems to have avoided all assessments and all taxes everywhere, for the time he lived in Pennsylvania. He made no purchase anywhere. As time ran on he became less desirous of purchasing land. During the last two or three months of his life, he made no mention of land. As he had only indicated an intention of returning to Virginia in connection with his purchasing land there, when he ceased to talk about the purchase of land; he said no more about returning to Virginia. It was said in Abington v. North Bridgewater, supra, “it depends not upon proving particular facts, but whether all the facts and circumstances taken together, tending to show that a man has his home or domicile in one place overbalance all the like proofs, tending to establish it in another.”

Applying this rule, which we believe a correct one, we think all the facts and circumstances proved clearly preponderate in favor of his domicile in Pennsylvania. The conclusion to which we have arrived, must not be understood as changing the rule in regard to the force to be given to an auditor’s finding of facts. When he reports facts directly proved by the witnesses, his report is entitled to great weight. But when the fact is simply a deduction fi-om other facts reported by him, his conclusion is the result of reasoning, the correctness of which we are as competent to judge as he. We will therefore review such result, and correct it if we discover error therein: Phillips’ Appeal, 18 P. F. Smith 130; Moyer’s Appeal, 27 Id. 482.

The learned judge erred in the effect he gave to the declarations, followed by no corresponding action changing the domicile. The distribution must be made according to the intestate laws of Pennsylvania.

Decree reversed and record remanded, with instructions to decree distribution conformably with this opinion.


source: Caselaw Access Project

author: Mr. Justice Sharswood

license: Public Domain

text:
    Scott et al. versus Strawn, for use, &c.
    1. A collector of bounty tax, appointed by the board of school directors, offered to settle his accounts with them. They refused to allow him to do so and referred him to the township auditors, by whom his accounts wore settled in the presence of three of the board and a settlement duly made and recorded, after which the auditors destroyed his vouchers. No action was taken by the board for five years. In a suit on the collector’s bond: Held, that the auditors were not the proper tribunal and that the 14th section of the Act of March 25th 1864 (Pamph. L. 90), and the 1st section of the Act of April 11th 1866, (Pamph. L. 778), gave them no power to audit the accounts.
    2. Held, further, however, that the board was estopped by its conduct and long acquiescence from objecting to the record of the settlement as at least prima facie evidence of the facts it contained, and that it should have been received.
    November 14th 1877.
    Before Agnew, C. J., Sharswood, Mercer, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Grreene county: Of October and November Term 1877, No. 76.
    This was an action of debt brought in the court below by Stephen Strawn, for the use of the school district of Centre township, against Jesse Scott, principal, and James Call and Jackson Chedister, surviving sureties upon a bond given by Scott for the faithful discharge of his duties as collector of bounty taxes.
    The facts in the case were as follows:—
    In the spring of 1866, the school directors of Centre township appointed Jesse Scott collector of bounty taxes, and placed the duplicate therefor in his hands. There seems to have been difficulty in the collection of these taxes, for it was not until late in November 1868, that Scott was prepared to settle his accounts. At that time lie appeared before the board of school directors and informed them of his readiness to make settlement with them, but they declined to allow him to do so, and requested him to settle with the township auditors, as the proper tribunal to pass upon his accounts. He accordingly appeared before the auditors on November 28th 1868, produced vouchers, and settled his accounts in the presence of three of the school directors ; was found by the auditors to have in his hands a balance of $54.72, and a settlement showing that balance was made and recorded. The auditors, thereupon, caused all the vouchers presented by the collector to be destroyed. No further action was taken until January 10th 1874, when this suit was brought.
    At the trial, before Willson, P. J., the defendants made the following two offers of evidence, the rejection of which by the court under exception for defendants was the subject of the third and fourth assignments of error.
    “ 1. That before the 28th of November 1868, he called on the board of school directors, ready and prepared to settle with them as collector of bounty taxes; that said board declined to settle with him, and directed Mm to settle with the township auditors; that in pursuance of this direction, he appeared before the township auditors on the 28th of November 1868, and settled with them; that the said auditors had convened on that day for the purpose of settling with him at the request of the school directors; that three of tho school directors were present and participated in the settlement; and that in said settlement, two of his vouchers were rejected by said auditors and a balance was found against him of $54.72, to be followed by the production of the township books, showing said settlement and balance. This evidence is offered for the purpose of showing that the plaintiff cannot recover more than the balance so found and its interest; to be followed by the record of said settlement contained in the proper books, showing that the collector was allowed in said settlement credits to the amount of $1536.25; and to be further followed by proof by this witness, that the collector produced legal vouchers to that amount, and that at the close of the settlement, all of said vouchers were left by him with said auditors, and were by them destroyed, in accordance with their usage in such cases. This evidence is offered for the purpose of showing the aggregate amount of the vouchers so destroyed and supplying their loss.”
    2. The same as above, so far as the words “ to be followed by the record,” adding: “to be followed by evidence that the result of said settlement was communicated soon after, by the secretary of the board of school directors, to James Call, one of the sureties; that, at that time, Jesse Scott, the collector, was solvent, and in a condition to furnish indemnity; and that nothing was done by the school directors till the bringing of this suit, about five years afterward, at which time Scott had become insolvent. This is offered to show that the plaintiff is estopped from claiming, in this suit, anything more than the balance so found.”
    Verdict for plaintiff, for $499.55, and judgment thereon, to which defendants took this writ of error, assigning for error, inter alia, the rejection by the court of the two offers of evidence as above set forth.

      Wyly, Buchanan & Walton, for plaintiffs in error.
    — The evidence should have been received. . The school directors were estopped by a settlement which they themselves procured, and in which they acquiesced for so long a time.

      Donley, Inghram & Sayers, for defendant
    in error, cited Cunningham v. Mitchell, 17 P. F. Smith 81; Chalker v. Ives, 5 Id. 81.
   Mr. Justice Sharswood

delivered the opinion of the court, January 7 th 1878.

We think the learned judge below was clearly right in holding that the township auditors were not the legal tribunal to settle the account of the plaintiff in error as collector of bounty taxes under the warrant from the school directors of Centre township. We have been referred to the fourteenth section of the Act of March 25th 1864, Pamph. L. 90, which enacts “that all accounts of the receipts and expenditures of the bounty fund, arising from any taxes that have been assessed or that may be assessed for the purpose as aforesaid (the payment of bounties to volunteers) shall be audited in like manner as other county, township, city, borough, or school district accounts are audited.” This very evidently refers to the bodies assessing and levying the taxes, from whom only could an account of expenditures as well as receipts be required. If the plaintiff in error did in fact disburse as Avell as collect the taxes, he did so with the acquiescence of the school directors as their agcnffi. They would be responsible for his disbursements and must account to the auditors, not he. We have also been referred to the first section of the Act of April 11th 1866, Pamph. L. 778, which provides “that it shall be the duty of the commissioners, supervisors, borough and city councils, school directors, board of election officers, and all other persons and officials, avIio under the directions and authority of an Act of the General Assembly, approved March 25th 1864, and the several supplements thereto, proceeded to raise money by taxation or otherwise as the agents, officials or representatives of any county, toAvnship, Avard, city or borough, for the payment of bounties to volunteers to have their accounts regularly and legally audited at the time of auditing other accounts, by the proper board of auditors of the county, toAvnship, ward, city or borough, for which such moneys Avere so raised and expended.” It is plain also that this act comprehends only the accounts of the authorities avIio had raised by assessing and levying taxes or otherwise, and expended monej in payment of bounties to volunteers. This section extended to money raised for the purpose otherAvise than by taxation, to Avhich the provision of the Act of 1864 did not apply. The learned judge Avas right therefore in rejecting the settlement before the auditors by the plaintiff Avhen offered as conclusive evidence of a settlement. Nor Avas there any evidence of an arbitrament and award which Avould make it final and conclusive. The first and second assign nients are therefore not sustained.

But we think that, for the purpose stated in the third and fourth assignments, the offers of evidence by the plaintiff' in error should have been received. These offers in effect were, that the plaintiff, before November 28th 1868, had called on the board of school directors, prepared to settle Avith them as collector of bounty taxes ; that the said board declined to settle with him, and directed him to settle with the township auditors; that, in pursuance of this direction, he appeared before the township auditors on the 28th of November 1868 ; that the auditors had convened on that day for the purpose of settling with him, at the request of the school directors; that his vouchers were produced, left with the auditors and destroyed by them; and that the account was settled, showing a balance against him of $54.72; and the record of such settlement was offered in evidence in connection with these facts; and that nothing was done by the school directors until the bringing of this suit, about five years afterward.

Under the circumstances, the school' directors were estopped by their acts and long acquiescence from requiring the collector to give either primary or secondary evidence of his vouchers. He had been deceived and misled by their acts, and the record of the settlement was prima facie evidence against them of their legal character and amount. It -would be inequitable, under the circumstances, especially after so long an acquiescence, to require the collector or his sureties to prove them. It was almost mockery to say that he might give secondary evidence of their contents. The settlement with the auditors had been made at the suggestion of the school directors — they knew of it, and folded their hands for five years. Clearly these facts shifted the burden. The record of the settlement ought to have been received, not as conclusive, but prima facie, open to be attacked and shown to be erroneous by the school district. It was sti’ictly analogous to an account stated between merchants, where an account rendered and not objected to within a reasonable time is considered as an account settled: Revan v. Cullen, 7 Barr 281.

The remaining assignments of error are not sustained.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Sterrett

text:
    Dale versus Pierce.
    In a feigned issue to try the right to certain cattle, A. offered evidence that ho purchased the cattle through B., who was his agent, in the name of B.; that it was agreed that the latter should butcher and sell the meat, and out of the proceeds return to A. the cost and one-fourth of a cent per pound of dressed meat additional, and that B. should have the balance. Upon this evidence the court granted a new suit, on the ground that it did not tend to prove an exclusive ownership in A., but established a partnership. Held ■(reversing the court below) that this agreement between A. and B. did not constitute a partnership, inter se, or as to third parties; and that the case should have been submitted to the jury to say what was the actual relation of the parties.
    November 14th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Washington county: Of October and November Term 1877, No. 150.

      This was a feigned issue under the Sheriff’s Interpleader Act, in which George Dale, the plaintiff, claimed, as his sole property, certain cattle which had been levied upon by Joseph Pierce, the defendant, as the property of George J. New.
    The plaintiff produced the evidence which will be found, in substance, in the opinion of this court and there rested. The court below, Hart, P. J., granted a compulsory nonsuit, and refused a subsequent motion to take it off on the grounds that,
    1. The evidence for the plaintiff does not tend to establish a sole and exclusive ownership in him, as is alleged in the notice to the sheriff, and in the issue framed, but establishes a partnership.
    2. The ownership claimed by the plaintiff is void and fraudulent in law, for want of such visible and open transfer of property as the law requires.
    This action of the court was the error assigned by plaintiff, who took this writ.
    C. C. & E. A. Montooth and John L. Gow, for plaintiff in error.—
    The terms of their contract did not make Dale and New partners, either as between themselves or as to third persons: Benjamin v. Porteus, 2 H. Bl. 590; Miller v. Bartlet, 15 S. & R. 137; Dunham v. Rogers, 1 Barr 255.
    An agreement to place goods in the hands of an agent who is insolvent, for the purpose of sale, upon the terms of his paying to his principal the invoice price of the goods and retaining the over-plus for himself] is not fraudulent: McCullough v. Porter, 4 W. & S. 177.

      A. W. & M. C. Acheson, for defendant in error.
    — A participation in the profits, such as was here had, is, as to third persons, a partnership: Edwards v. Tracy, 12 P. F. Smith 381; Lord v. Proctor, 7 Phila. 638; Dunham v. Rogers, 1 Barr 255; Purviance v. McClintee, 6 S. & R. 261.
   Mr. Justice Sterrett

delivered the opinion of the court, January 7th 1878.

The plaintiff in error, in his notice to the sheriff as well as in answer to the rule, claimed the absolute ownership of the cattle levied on as the property of New; and it was upon this claim that the issue, which he tendered and undertook to maintain, was awarded. He assumed the onus of proving what he asserted, and if he failed to adduce testimony tending to prove that he was the sole owner of the cattle in controversy, the judgment of nonsuit was properly entered. He could not succeed by offering testimony tending to show, or even by proving a limited or qualified interest in them: Meyers v. Prentzell et al., 9 Casey 482. It is claimed, however, that there was testimony which should have been submitted to the jury, and from which they might have found that New was merely the agent of Dale in purchasing the cattle, and that the money used in paying for them was furnished by Dale for that purpose. If this be so there was error in withdrawing the case from the jury, no matter how strong the evidence may have been to the contrary.

Dale testified in substance that New was his agent in the transaction ; that he sent him to Young for the purpose of buying the cattle for him on the best terms that he could make; and after reporting the price at which they could be purchased, he bought twenty-two head, amounting to about $875, to be paid for when he took them away. He further testified that he furnished the money to pay for them, viz.: $100 about the 4th September, $176 about the middle of the same month, out of the proceeds of sale, and $600 cash in October. In speaking of the arrangement between them, he says that New was to butcher the cattle, sell the meat and out of the proceeds give him the price of the cattle and one-fourth of a cent per pound dressed meat, additional, and that New was to have all that remained. The testimony of New as to his agency in the purchase of the cattle, and the terms on which he was to butcher them and dispose of the meat is substantially the same. Upon this and other testimony before the jury it is claimed that it was a question solely for their determination, whether New was not merely the agent of Dale in the purchase of the cattle, and' whether the arrangement as to butchering them was not simply a mode of compensating the former for his services in dressing and disposing of the meat. If the jury had found, as they might have done, that such was the true state of the case, the plaintiff would have been entitled to their verdict. If the cattle were purchased and paid for by Dale through- the agency of New, the latter had no interest in them; and if he agreed to butcher them, &c., and accept as compensation for his services, all that might remain after deducting the cost of the cattle, and twenty-five cents per hundred pounds dressed meat, the transaction did not constitute a partnership inter se, or as to third parties. On the other hand, if it had been shown that the transaction was in fact a loan of money by Dale to New for the purpose of buying cattle for himself and carrying on the business of butchering, the plaintiff would have no claim to the cattle thus acquired by New. Doth parties however deny that such was their relation to each other. The case should have been submitted to the jury, under proper instructions, to say what was the actual relation of the parties, or rather, whether the cattle were purchased by Dale through the agency of New.

There appears to be nothing in the evidence to justify the conclusion that the transaction was fraudulent in law and void as to creditors.

Judgment reversed, and a procedendo awarded.


author: Mr. Justice Woodward

text:
    Thompson versus Boyle.
    1. In a suit by an attorney, on a quantum meruit, for professional services, it is competent for the defendant, on cross-examination of another attorney practising at the same bar, to ask the witness what is the ordinary charge for defending a criminal charged with felony.
    2. It is also competent for him to show by the examination of other members of the same bar what is the usage of that bar in cases similar to that which plaintiff had tried, and what the services of counsel therein wore really worth.
    3. The facts and circumstances upon which any reasonable presumption Or inference can be founded as to the truth or falsity of the issue or disputed fact, are admissible in evidence.
    4. A resort may bo had to the general value belonging to things of a given class, in order to infer the value of a particular member of such class.
    November 14th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Fayette county: Of October and November Term 1877, No. 95.
    Assumpsit by Charles E. Boyle against Samuel Thompson, for fees for professional services rendered by plaintiff to defendant.
    The facts are stated in the opinion of this court.
    The case was tried before Willson, P. J. The verdict was for the plaintiff for $5000, and the defendant took this writ, assigning for error the rejection of his several offers of evidence, which are also set forth in the opinion.

      Edward Campbell and Amzi S. Fuller, for plaintiff in error.—
    Great latitude is allowed, in cross-examination, to test the knowledge and accuracy of a witness. The witnesses here were attorneys, practising in the same court in which the services wrere rendered by plaintiff. They had made estimates of the value of his services, and it was certainly competent for a defendant, on cross-examination, to propound any question that would tend to elicit their knowledge upon the subject: Greenl. on Ev., § 446; and the best means of obtaining this knowledge was to interrogate them as to the fees usually charged for professional labor in the courts of the locality. For the purpose of aiding the jury in determining the value of the services of an attorney, it is proper to receive evidence of the price usually charged for similar services by other persons of the same profession practising in the same court: Stanton v. Emery, 3 Otto 548; and the testimony of Mr. Kaine should have been admitted, to show what were the usual charges in the court of Fayette county.
    All facts from which any reasonable inference can be drawn as to the truth or falsity of the issue, which tend in the slightest degree to sustain a material averment, or are illustrative of other facts in the case, are relevant, and should be received in evidence: Starkie on Ev., § 7; Miller v. Stem, 2 Jones 386; Brown v. Clark, 2 Harris 469.

      A. D. Boyd, for defendant in error.
    — There can he no “ordinary charge for defending a criminal charged with felony.” That task may involve one-half hour’s work, without any preparation, in behalf of some unfortunate person without character and without means, on a charge of petty larceny, or it may require services extending over a year in a case involving great interests and responsibilities. There can be no fixed standard to measure the value of such services. The importance of the cause must be taken into consideration to determine their value: Kentucky Bank v. Combs, 7 Barr 548.
   Mr. Justice Woodward

delivered the opinion of the court,- Jan- - uary 28th 1878.

When Mooney v. Lloyd, 5 S. & R. 412, was overruled by Gray v. Brackenridge, 2 P. & W. 75, the rule was settled that an action for attorney and counsel fees could be maintained. Whenever a controversy has since involved its discussion this rule has been recognised and enforced. The implied contract between counsel and client has become the subject of litigation, therefore, and the law applies to it the same principles that are applicable to other similar contracts, and affords relief in the same forms that it affords it to litigants concerning them. It has been made a ground of complaint by the defendant below, that the trial of this cause was governed by exceptional and special rules, under a belief, as was alleged in the argument, on the part of the court, that the fact that it was a controversy between counsel and client made its circumstances exceptional and special.

In December 1873, Samuel Thompson, the defendant, was indicted in the Quarter Sessions of Payette for the offence of abortion, and was tried and convicted in the following September. Some months afterwards, upon the petition of citizens of the counties of Payette and Westmoreland, a hearing was had before the Board of Pardons, and upon their recommendation a pardon was granted by the governor. Throughout the preparation and trial of the cause, and in all the proceedings taken to secure his pardon and discharge, the plaintiff below and George W. K. Minor, Esquire, were the defendant’s counsel. Por the professional services rendered by him the plaintiff demanded a fee of five thousand dollars, and the defendant refusing to pay it this suit was brought for its recovery.

In the course of the trial Mr. Minor was called as a witness for the plaintiff, and it was proposed by the defendant’s counsel to ask him, on cross-examination, what was the “ ordinary charge,” in Fayette county, “ for defending a criminal charged with felony.” In the cross-examination of another witness, K. Ewing, Esquire, it was proposed to ask if he ever knew of a fee of five thousand dollars to be paid for services in that court. Both questions were objected to as irrelevant, and the objections were sustained. These rulings have been made the grounds of the first and second assignments of error. The question to Mr. Minor, most probably, would have elicited no testimony of any importance, and the refusal to permit an answer to it would hardly Avarrant a reversal of the judgment. It was very general in its terms, but the objection to it was not on that ground. It was certainly relevant. If there Avas such a thing as an “ordinary charge” for defending a criminal in a trial for a felony, the defendant had the right to sIioav it. When the question to Mr. Ewing was propounded he had SAVorn that he regarded the individual services of the plaintiff as worth five thous- and dollars. Why Avas not the question pertinent for every reason and in every aspect ? It was asked in the course of a cross-examination, and the defendant had the right to elicit the means and extent of the knowledge of the witness, in order to test the value of his opinion. It was relevant, for the measure of compensation for professional services was in issue, and Avhere there is no other standard that measure must be found from evidence of current charges for similar services, in accordance with the ordinary professional usage. The question could not have been asked, in chief, by either party, but as cross-examination it was unobjectionable.

The third and fourth errors have been assigned to the rejection of the offers to sIioav by Daniel Kaine, Esquire: 1. What Avas the usual compensation charged at the Payette county bar for defending a prisoner charged in the Quarter Sessions with felony, where the time consumed in the trial was one day, and AA’hore a motion for a new trial and a motion in arrest of judgment were made; and 2. What the services of an attorney would be Avorth to go before the Board of Pardons at Harrisburg, where the time consumed did not exceed three days in going and returning. The minds of the plaintiff and his counsel seem to have been imbued Avith the idea that some special mystery attached to the trial of the indictment against this defendant, which excluded it from a.ll comparison Avith any other litigation, withdrew the question of compensation from the operation of ordinary rules, and gave peculiar merit to the present claim. In refusing to hear the testimony of Mr. Kaine the court appear to have acted under the same impression. It is true that no two causes are identical, and the amount of labor in the preparation and trial of one will never be precisely the same that may be required in the preparation and trial of any other. And it may be assumed to be equally true that the defendant derived all the advantage from the efforts of his counsel Avhich the highest legal ability and skill could give. And yet, the fact remains that the case presented here is a demand of five thous- and dollars by one of tAvo counsel of a defendant charged Avith a felony, for services rendered upon his trial and in his application for a pardon. The same fee demanded by Mr. Minor would swell the amount to ten thousand dollars. This is a pretty significant sum to be paid as compensation to counsel in a cause to the trial of which a single day was devoted. The action was not upon any special undertaking by which the defendant had become bound. It was on a quantum meruit. If the fee demanded was such as any usage warrants it is very clear that poor men charged with crimes must defend themselves without professional aid. Whether or not the proceedings were so exceptional as to justify a charge transcending any known usage would depend on facts to be found by a jury on evidence submitted to them. But professional employment in one difficult case cannot be essentially different from professional employment in another case of equal difficulty. And its value being ascertained in one instance, its value in the other can be at least approximated. The very best means of adjusting this value are the opinions of those who, in earning and receiving compensation for them, have learned what legal services in their various grades are worth. And the fact that the proposition was to adjust the whole value by specific estimates in regard to the different items and details of the general claim would make the adjustment more satisfactory than an estimate in gross would be. There can be no necessary connection between the trial of an indictment and proceedings to procure a convicted defendant’s pardon. Accuracy in the production of results required that the value of the separate services should be separately estimated.

A lawyer may bring suit for his fees, but his cause is to be tried like the causes of other men. When Chief Justice Gibson said in The Kentucky Bank v. Combs, 7 Barr 543, that “ a lawyer charged with particular preparations íbr a lawsuit, is not to be held responsible, or paid as a porter or a shoemaker,” he intended simply to declare that the sacrifices of labor, time and money made by a lawyer in qualifying himself to discharge difficult and responsible ■ duties, were to be considered in settling the amount of his compensation. The general proposition of the defendant was to show by Mr. Kaine, from his knowledge of the usage of the Fayette bar, in cases similar to that which the plaintiff had tried, what the services of counsel were really worth. In regard to compensation for labor performed in procuring the pardon, expert testimony would only be required to fix the allowance lawyers should receive for the time devoted to its performance. Upon both points Mr. Kaine was undoubtedly competent to speak. And the right of the defendant to the admission of the testimony not only rested on authority, but grew out of the very circumstances and nature of the case. “ The. great and general rule on the subject of evidence seems to be this, that the facts and circumstances upon which any reasonable presumption or inference can be founded, as to the truth or falsity of the issue or disputed fact, are admissible. * * * The rule depends principally upon two considerations : First, that where direct evidence can be obtained of the disputed fact, it is still essential for the purposes of justice that it should be open to contradiction and confirmation from collateral circumstances; and, second, the frequent necessity of depending wholly upon presumptions and proofs from collateral circumstances, a necessity frequently arising from the failure of direct evidence 1 Stark. 17, 18. “ So frequent is the failure of evidence from accident or design, and so great is the temptation to the concealment of truth and misrepresentation of facts, that no competent means of ascertaining the truth can or ought to be neglectedId. 39. The admission of res gestee is justified by the author on that ground. In accordance with the rule thus stated, it has been held that even evidence which is too slight to prove a fact, but which is illustrative of other facts, is relevant, and ought to be received : Brown v. Clark, 2 Harris 467. And it is a sufficient answer to an objection to testimony as irrelevant, that it tends in the slightest degree to sustain a material averment: Miller v. Stem, 2 Jones 386. But the offered testimony of Mr. Kaine was something more than merely illustrative and relevant. It had a direct bearing on the very point of the controversy. It is well settled that market value may be proved by any one conversant with the markets. If the thing is one of ordinary use, ordinary business experience is sufficient for the purpose. As a general rule, persons accustomed to deal in real estate, or other property, may be examined as to the value of such property, and the effect on it of certain extraneous conditions. On questions of valuation of property, the safest course is to permit the examination of all having experience in the thing valued, leaving their authority to be tested on their cross-examination. These principles are developed and supported by numerous cases collected in the notes to sections 446 and 447 of Wharton’s Law of Evidence. But it is claimed that the circumstances of this case resembled those of no other, and that testimony as to the value of general professional services was inadmissible for that reason. While evidence of exceptional and peculiar facts would always remain for the consideration of a jury, evidence resting on knowledge of circumstances of general similarity would not, therefore, be necessarily excluded. “ A resort may be had to the general value belonging to things of a given class, in order to infer the value of a particular member of such class. A witness may not be allowed to speak of the exact distinctive value of an article he has not seen. He is allowed, however, to speak of the market value of the class to which this article belongs. He has never, for instance, seen a horse whose value is in controversy, and he cannot, therefore, answer as to the specific value. But he may answer as to the generic value of horses, of age, color, soundness and speed, such as those assumed to belong to this particular horseWharton’s Evidence, § 448. “ Whenever the value of any particular kind of property, which may not be presumed to be within the actual knowledge of all jurors, is in issue, the testimony of witnesses acquainted with similar property is admissible, although they have never seen the particular article in question Miller v. Smith, 112 Mass. 475. In the present case, the defendant should have been permitted to show the value of the services of counsel under circumstances of general similarity to those under which the plaintiff’s services were rendered. All the distinguishing and peculiar features whose existence was alleged, could very easily have been still kept in view.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Paxson

text:
    Commonwealth versus Bartilson et al.

    1. In the first count of an indictment charging defendants with a conspiracy to cheat and defraud, the conspiracy was not laid within the statutory period, but the count charged the commission by the defendants of a series of fraudulent acts “ in pursuance and as a renewal of such confederacy, conspiracy and agreement,” some of which acts were laid within two years from the finding of the bill. Held, that the prosecution was barred by the Statute of Limitations.
    2. The second count charged a conspiracy within the statutory period. In a bill of particulars filed under this count divers overt acts of conspiracy were set forth, being for the most part the same acts as were charged in the first count and which were admitted to have been done in pursuance of the original conspiracy. The court being of the opinion that they would not be admissible in evidence under the second count, and that the result of a trial could only be the acquittal of the defendants, quashed this second count. Held, that the court erred in this view of the evidence; that .the purpose of the bill of particulars was merely to give the defendants notice of the particular acts relied upon by the Commonwealth to establish the conspiracy, and that it could be altered or supplied to meet the exigencies of the case.
    3. When the indictment was quashed the district-attorney gave notice of his intention to remove the case to the Supreme Court, and at the same time moved the court to require the defendants to renew their recognisance, which the court declined to do. Held, that it was within the discretion of the court either to hold the defendants to bail pending the certiorari or writ of error, to hold them in their own recognisance, or to discharge them without day; and such action is not reviewable, except, perhaps, for a gross abuse of discretion.
    4. Gise v. Commonwealth, 31 P. F. Smith 428, explained.
    November 13th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon,, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Quarter Sessions of Washington county: Of October and November Term 1877, No. 232.
    Indictment of T. A. Bartilson, Joseph Hanen and John H. Little, found on the 22d of May 1877, charging said parties, on the complaint of O. H. P. McCoy, with a conspiracy to cheat and defraud said complainant of his property. The indictment contained two counts, the first of which charged that the defendants, “ being persons of evil minds and dispositions, wickedly devising and intending to cheat and defraud one O. H. P. McCoy, on the 20th day of December A. D. 1874, * * * fraudulently, falsely, maliciously and unlawfully, did conspire, combine, confederate and agree together, between and amongst themselves, falsely and fraudulently to cheat and defraud the said O. II. P. McCoy of his moneys, goods, chattels, property and estateand then proceeded to state a series of overt acts done in pursuance of the conspiracy. Each of these averments of overt acts is linked to that which precedes it, and to the original general charge of the conspiracy to cheat, by the allegation that it was “ in pursuance and as a renewal of said conspiracy, combination, confederacy and agreement, so as aforesaid had and made.”
    Two of these overt acts were laid within two years of the finding of the indictment, viz.: on the 2d of June and the 26th of July '1875.
    The second count of the indictment laid the conspiracy as having been entered into May 21st 1877, and charged in general terms that the defendants did “ falsely, fraudulently and maliciously combine, conspire, confederate and agree together, by divers false pretences and subtle means and devices, to obtain and acquire to themselves of and from O. II. P. McCoy, divers large sums of money, and to cheat and defraud him thereof, and did then and there do divers .dishonest, malicious and unlawful acts,” &c.
    On the 6th of August 1877, the defendants applied by petition to the court for an order on the district-attorney to furnish them with a bill of particulars under the second count.
    The order was granted, and on the 9th of August a bill of particulars was furnished. The defendants were therein notified that “ under the second count of the indictment the Commonwealth expected to prove that the defendants were engaged in an unlawful and fraudulent combination and conspiracy to cheat and defraud O. II. P. McCoy, at the date laid in said count, to wit: the 21st of May 1877, which conspiracy of the said defendants was only arrested by the prosecution and indictment preferred against them.”
    The bill of particulars then proceeded to state the different overt acts in regard to which the Commonwealth would oiler proof, the same as were set forth in the first count in the indictment; adding thereto the fraudulent transfer by Bartilson of his real estate to one John C. Glenn, a person without means, made September 21st 1875, with intent to defraud McCoy, &c.
    On the 27th of August defendants moved to quash the indictment, for the following, among other reasons :—
    1. The prosecution of the offence charged in the first count is barred by the 77th section of the Act of 31st March 1860 : Purd. Dig. 934, pi. 36.
    2. The Commonwealth, by the bill of particulars furnished with respept to the second count, is precluded from offering any testimony in support of the said count, other than such as would tend to prove a conspiracy entered into at a date so long prior to the finding of the bill as to be within the provisions of the act aforesaid.
    After argument on this motion to quash, the court, Hart, P. J., in an opinion, inter alia, said: “ It is conceded by counsel on both sides, that the gravamen or gist of the offence charged is the unlawful conspiracy. And this is evident from the consideration that the authorities are all agreed, that it is not necessary that any act should be done in pursuance of the conspiracy. ■ From the moment the unlawful confederacy is formed the offence is complete, and the conspirators are liable to indictment and punishment, though it may have been followed by no overt act whatever. But it was argued with great force and ingenuity that the conspiracy is renewed and kept on foot by each and every overt act done in pursuance of it, and that, in fact, it is so averred in the count. We would be glad to accept this view of the case if we could. In view of the outrageous character of the series of frauds charged against the defendants, we would strongly incline to open the door for the fullest investigation did the larv so permit. But we think the Commonwealth, by the Act of 81st March 1860, has herself barred the door against us.” * * *
    After a review of the case of Gise v. Commonwealth, 31 P. F. Smith 428, the court continued: “ It is the unlawful agreement which constitutes the offence of conspiracy, and when that is once fully formed the statute begins to run. While, later on in time, other offences may follow and flow from the agreement, as embezzlement in the one case, and adultery in the other, yet they do not interrupt the running of the statute, although they may be punished as distinct substantive offences. We take the language of the Supreme Court as a solemn warning, that we are not, by applying the doctrine of continuous offences, and setting up a new conspiracy with each successive overt act, to take down the bar of the statute and open a door which the law has closed.”
    With regard to the second count the court said: “ Although the count charges the alleged conspiracy to have been entered into on the 21st day of May 1877, yet the bill of particulars which the district-attorney was ordered to furnish the defendants shows that the conspiracy is the same as that charged in the first count, and that it ‘ originated about the month of November 1874,’ and that it is to be evidenced by the same overt acts as are set out in the first count, with an addition of one other. Now, under the views we have just expressed in regard to the first count as affected by the Statute of Limitations, and with this solemn admission of the Commonwealth that the two counts are intended to charge the same offence, it would be a vain thing for us to put the defendants to trial on this second count, when we know beforehand that all the evidence which the Commonwealth can offer must be ruled out as inadmissible.”

      The court then ordered the indictment to be quashed, and the defendants to be discharged.
    Before they were discharged the district-attorney gave notice of his intention to remove the cause to the Supreme Court by certiorari, and moved the court belowT to order the defendants to renew their recognisance to abide the issue in said court, which motion was refused.
    This refusal and the quashing of the indictment wore assigned for error by the Commonwealth in taking out this writ.

      John Add. McIlvaine, District-Attorney, A. W. & M. C. Acheson, Crumrine & Murdoch and John Aiken, for the Commonwealth. —
    It is admitted that the crime of conspiracy consists in the agreement to do an unlawful act, but it does not follow that in all cases of conspiracy the prosecution is barred at the end of two years from the formation of the original design. We contend that any overt act. done in pursuance of the original agreement is a renewal or continuance of the conspiracy and may be so charged in the indictment. The illegal agreement is carried into every overt act and the parties may be said to “ conspire ” whenever they attempt to execute their common design, and any act within the statutory period will make them amenable to the charge of conspiracy: People v. Mather, 4 Wendell 230; Commonwealth v. Delany, 1 Grant 225; Commonwealth v. Wishart, 8 Leg. Gazette 137; 1 Bishop’s Crim. Law, sects. 437, 440.
    The court erred in quashing the second count upon the ground that, from the bill of particulars furnished under this count, it appeared that the offence charged was the same as that charged in the first count, which was barred by the statute.
    The question hero was, whether there was a fatal defect on the face of the indictment, as it came from the hands of 'the grand jury. The bill of particulars furnished in response to the defendant’s notice was no part of the indictment, and could not be interpolated into the second, count, in considering the point raised by the second exception.
    It is the common practice in criminal trials to prove antecedent facts and circumstances inside or outside the statutory period to explain the intent with which the particular offence charged in the indictment was done; the statute operates on the crime, not on the evidence. In conspiracy, however, the court thought this was not allowable, because it would be fatal to the prosecution to show that the design to commit the crime existed in the minds of tho conspirators more than two years before the finding of the bill.
    Where an indictment is quashed at the instance of defendants and without the concurrence of the Commonwealth the defendants are not entitled to an unconditional discharge: People v. Stager, 10 Wendell 434; Keefhaven v. Commonwealth, 2 P. & W. 244;
      Mishler v. Commonwealth, 12 P. F. Smith 56; State v. Stout, 6 Halstead 133.
    The Commonwealth, acting through her recognised officer, the district-attorney, could of right appeal to her highest tribunal, whether the crime wherewith she charged ’the defendants was indictable and punishable, and until such a decision was rendered, could demand that the defendants be securely held to answer to the indictment, if it should be decided that the lower court had erred in refusing to try them. This demand she made by her proper officer, coupled with notice of his intention to remove the cause to this court; but the court refused to detain the defendants and discharged them without day.

      Dougan & Todd, D. S. Wilson and D. F. Patterson, for defendants in error. —
    The conspiracy is the gist of the indictment, and though nothing be done in prosecution of it the offence is complete of itself: Rex v. Best, 1 Salk. 174; Collins v. Commonwealth, 3 S. & R. 222; Commonwealth v. McKisson, 8 Id. 420; Twitchell et al. v. Commonwealth, 9 Barr 212; Commonwealth v. Curren, 3 Pittsburgh Rep. 145; Hazen v. Commonwealth, 11 Harris 363. The doctrine of continuing offences has been expressly repudiated in the recent case of Grise v. Commonwealth, 31 P. F. Smith 428. The doctrine of renewing an offence, so as to toll the bar of the Statute of Limitations, has no place in the criminal law: People v. Mather, 4 Wendell 229; 1 Whart. Cr. Law, 7th ed., § 444; Commonwealth ex rel. Whitaker v. The Sheriff, 3 Brewster 394.
   Mr. Justice Paxson

delivered the opinion of the court, January 7th 1878.

The first assignment alleges error in quashing the first count of the indictment. Said count charged the defendants with a conspiracy to cheat and defraud one O. H. P. McCoy of his moneys, goods, chattels, property and estate. The conspiracy is averred to have been formed on the 20th of December 1874. This was more than two years prior to the finding of the bill, and upon this ground the court below quashed the count. It was strongly urged, however, that inasmuch -as it w'as averred in said count that the defendants had in, “pursuance and renewal of said conspiracy,” committed divers overt acts specifically described in said count, the date of one of which at least was within the statutory period, there was a continuance and renewal of the conspiracy from time to time, and the statute was thereby tolled. This is plausible but unsound. The offence charged was the conspiracy. According to all the authorities the conspiring is the essence of the charge, and if that be proved the defendants may be convicted : Collins v. The Commonwealth, 3 S. & R. 220; Commonwealth v. McKisson, 8 Id. 420; Commonwealth v. Judd, 2 Mass. 329; Commonwealth v. Tibbetts, Id. 536; Commonwealth v. Warren, 6 Mass. 74; State v. Richie, 4 Halstead 293; State v. Buchanan, 5 Harr. & Johns. 317; People v. Mather, 4 Wendell 229. According to the first count the offence was complete on the 20th of December 1874. The overt acts set forth do not constitute the offence. They are x»the evidence of it, and are sometimes- said to be the aggravation of it. An overt act may or may not be unlawful, per se. It is because of its relation to an unlawful combination that it becomes obnoxious to the criminal law. The averment that the conspiracy was “renewed” from time to time does not meet the difficulty. If it proves anything it proves too much. The “renewal” of a conspiracy means to begin it again; to re-commence it; to repeat it. From this it is apparent that each renewal is a new offence; a repetition, it is true, of a former one, but still an offence for which an indictment would lie. If, therefore, the overt acts were done or committed in renewal of the conspiracy of December 20th 1874, as charged in the count, they aver distinct offences. It is a well-settled rule of criminal pleading that distinct offences cannot be joined in the same count. This principle is too familiar to need the citation of authority; we will only refer to the latest case: Hutchison v. The Commonwealth, 1 Norris 472. The difficulty in regard to this count arises merely from a mistake in pleading. The date of the conspiracy should have been laid within the statutory period. The Commonwealth must allege and prove a conspiracy within two years. If this cannot be done the Commonwealth has no case. The pleader evidently felt the strain of this part of his case when he introduced the averment that the overt acts were in “renewal” of the original conspiracy. It was practically laying an offence with a continuando ; it was an attempt to prove the existence of a crime within the statutory period, by showing its commission outside of such period, and that it had been continued dowm to a time within it. In a recent case in which I delivered the judgment of the court (Gise v. The Commonwealth, 31 P. F. Smith 428), the doctrine was asserted that there is no such thing as a continuing offence; that it is wholly unknown to the criminal law. This language has been somewhat criticized, in view of which I have re-considered it carefully with a view to withdraw or qualify it if found erroneous. Next to being right, nothing would afford me more pleasure than to correct an error. In order to interpret its true meaning the passage must be considered in its connection. The question before us was whether a man who had been indicted in 1876, for bigamy committed in 1868, could be convicted by showing that he had continued the offence during the intervening years by cohabitation with the second woman. It was held that he could not, and that there was no such thing as continuing a completed offence so as to toll the statute. It wras not intended to assert the absurd proposition that a man might not repeat an offence from day to day, as in the case of maintaining a nuisance, and other familiar instances which might be referred to. This may be done daily for any indefinite period. But a man could not be convicted of maintaining a nuisance charged to have been committed ten years prior to the finding of the bill Of indictment by proving that he had continued the nuisance, day by day, to a time within the statutory period. In the sense, therefore, of tolling the statute it cannot be said that a completed offence can be continued. It may be repeated from day to day, but the statute runs from the close of each day, and the indictment must charge the offence to have been committed within the statutory period. This is all that was intended to be said in Gise v. The Commonwealth ; it was all that the language referred to implies when read in connection with the subject-matter to which it refers. In this sense the doctrine of that case is re-asserted.

We think the learned judge of the court below was right in quashing the first count. This brings us to the second assignment which alleges error in quashing the second count. This count charged a conspiracy within two years and was in proper form. It sets out no overt acts, being what is sometimes called in criminal pleading the common count. That such a count is sufficient has been repeatedly decided: Hazen v. The Commonwealth, 11 Harris 363; Twitchell v. The Commonwealth, 9 Barr 211; Commonwealth v. McKisson, 8 S. & R. 420; Rex v. Hamilton, 7 C. & P. 448; Wharton’s Precedents 351. The court below quashed it not because of any defect ajiparent upon its face, but for reasons dehors the record; in other words, for defect in the proof. The district attorney had filed a bill of particulars under the second count, which, as before observed, was general in its nature, setting forth divers overt acts of conspiracy, being for the most part the same acts as were charged in the first count, and which were admitted by the district-attorney to have been done in pursuance of the original conspiracy of December 20th 1874. The court being of opinion that they would not be admissible in evidence under the second count, and that the result of a tidal could only be the acquittal of the defendants, quashed the said count. We do not deny the power of the court to quash an indictment for matters not appearing upon its face. This is sometimes done for ■ defects in the process for drawing and summoning the grand jury, or irregularities connected with the jury wheel, and where an indictment is found pending a writ of habeas corpus. It is a power, however, that should be exercised with caution, especially where it is done for defect of proof. This may, and sometimes is supplied at the last moment. The purpose of the bill of particulars was merely to give the defendants notice of the particular acts relied upon by the Commonwealth to establish the conspiracy. It could have been altered or supplied to meet the exigencies of the case, always, of course, upon sufficient notice to the defendants. We think the court below eirred. in its view of the evidence. The fact that a conspiracy existed on the 21st day of May 1877, or upon any other day within two years of the exhibiting of the bill of indictment, may be shown by the previous acts, conduct or declarations of the parties. The Statute of Limitations affects the crime, not the proof of it. It is rare that a conspiracy can be established by direct proof. As a general rule conspirators do not publish their intentions. Hence it is that their object, and the conspiracy itself, must usually be shown by their acts. It is said in Roscoe on Criminal Evidence, at page 415 : “ If on a charge of conspiracy it appears that two persons by their acts are pursuing the same object, and often by the same means, the one performing part of an act, and the other completing it for the attainment of the object, the jury may draw the conclusion that there is a conspiracy.” All the leading text writers assert this doctrine, and it is sustained by numerous decisions which it is not necessary to refer to. Acts and declarations of the parties prior to the statutory period may be given in evidence, provided they tend to show a conspiracy existing at the time charged in the indictment. It is true they would not be admissible for the purpose of proving a distinct crime barred by the statute. But where in conspiracy an overt act is done within two years, and said act is but one of a series of acts committed by the parties, evidently in pursuance of a common design and to carry out a common purpose, such acts would be evidence, provided they tend to show that the last act was a part of the series and the result of an unlawful combination; and such evidence may satisfy a jury of the existence of a conspiracy at the later period. And this though some of the prior acts may have occurred at a time when, as an independent conspiracy, it would have been barred by the statute. For, as before said, the overt acts are the evidence from which a conspiracy may be inferred. Hence it is that while as a general rule in criminal cases the venue must be laid in the county in which the offence Avas committed, yet in conspiracy it may be laid in any county in which an overt act has been done by any one of the conspirators. This rule is well settled : Whart. Cr. Law, § 2850; Arch. C. P. 6; Rex v. Scott, 4 East 164; The People v. Mather, 4 Wendell 230. This rests upon the principle that the overt act is evidence of a conspiracy existing at the time and place Avliere the overt act Avas committed. Of course, the overt act must be such as to tend to shoAV that it was the result of conspiracy. As is said in Arch. C. P. & P. 1056, “ Every overt act, to be evidence, must have at least a tendency to prove either the general nature of the conspiracy, or that one or more of the defendants wore operating towards effecting that which is charged in the indictment as being the object of the conspiracy.” But if the overt act charged in the indictment, or proved to have been done within two years, is sufficient to satisfy the jury of the existence of a conspiracy at that time, it is wholly immaterial when the parties thereto first formed the unlawful combination in their minds, or gave effect to it by concert of action. If it has been renewed from time to time, and overt acts committed through a series of years, and one of said acts has taken place within two years, each renewal constitutes a fresh conspiracy, for which an indictment will lie. It has been held that where a conspiracy had been formed outside of the jurisdiction of the court, an overt act committed within the jurisdiction is evidence of a conspiracy there: Rex v. Scott, supra. And all who accede to a conspiracy after it is formed become conspirators: People v. Mather, supra. For the reasons given we think the court below erred in quashing the second count.

The third assignment alleges that the court erred in refusing to hold the defendants to bail pending the determination of the issue in this court. It appears that when the indictment was quashed the district-attorney gave notice of his intention to remove the case to this court by certiorari, and at the same time moved the court to require the defendants to renew their recognisance. This the court declined to do. This action of the court is not assignable for error. It was in the sound discretion of the court either to hold the defendants to bail pending the certiorari or writ of error, to hold them in their own recognisance, or to discharge them without day, and such action is not reviewable here, except perhaps, for a gross abuse of discretion. We feel constrained to say, however, that in our judgment, the discharge of the defendants under the circumstances was not a judicious exercise of discretion. In a case in which it clearly appears that an indictment must be quashed, and that no subsequent proceedings can be had, it may be very proper to discharge a defendant. But where there is at least a serious doubt, and the district-attorney announces upon his official responsibility his intention of removing the record to this court for review, it wmuld certainly be the safer course to hold the defendants to bail pending such removal.

The judgment quashing the second count of the indictment is reversed and a procedendo awarded.


text:
    Duff versus Williams.
    If a party make erroneous representations of the solvency of another he will not be liable in an action of deceit for such representations, if, at the time he made them, he honestly believed them to be true.
    November 15th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Beaver county. Of October and November Term 1877, No. 206.

      Action on the case hy Robert Williams against John C. Duff, for an alleged deceit practised upon the plaintiff by the defendant, whereby the plaintiff was induced to loan to Agnew Duff, brother of defendant, the sum of $1500, under the belief that at the time said Agnew Duff was solvent and able to repay the loan.
    For the money loaned Agnew Duff gave a note, dated September 17th 1874, payable in one year. The note was joint in form, having the word “we” written therein, but was signed by Agnew Duff alone.
    The latter, on the 8th of January 1875, made an assignment for the benefit of creditors, his liabilities amounting to about $45,000 and his appraised assets about $87,000. When the plaintiff discovered that out of the assets he would not realize the full amount of his claim he brought this suit, alleging that the representations made by defendant induced the loan and were false and fraudulent and made with the intent to deceive the plaintiff, and that they did so deceive him.
    At the trial the plaintiff testified, in substance: “ I was in the store of defendant about the 12th of September 1874, and had some money which I wanted to give to him. Defendant replied that he did not want it, but that ho know a good man that would want it, and that he would vouch for him ; I remarked it made no difference to me so it was a good man, and defendant said he would go on the note as bail, along with -him, as a good. borrower. He asked me how much I had to loan, and I said $1500. Three or four days thereafter Agnew Duff' came to me and said he had come for that money; that John had sent him for it, and that John said he would go on it as surety. He gave me a note and said to go down to John and he would go on it. I would not have loaned the money at all, only on the representations of John C. Duff. I went down about a week thereafter to see John, and laid the note down on the table before him and wanted him to put his name to it. He said it was good enough without. I could not get him to sign it.”
    The defendant testified: “Plaintiff came to our store about the middle of September 1874; took me to one side and wanted to know if I wanted to borrow some money; I told him not. He then asked me if I knew any one who did; he said he had $1000 to put out; that he did not want to keep it about the house. I told him Agnew might take it, perhaps; ho said he supposed he was good; I told him I thought he was; he asked me if I would go on his note; I told him I would not, as I was endorser for him in bank a good deal, and it had to be paid when it came due; he then said to me lie guessed he was good enough himself; said something about his owning real estate; he then requested me to write to Agnew, as he had the money and did not want to keep it about the house; I wrote to him that he had $1000 he wanted to put out, as he requested me; plaintiff had not been a customer of mine for ten or twelve years ; the sum of $1500 was not mentioned in our conversation at all; he never consulted me before about his financial matters ; about a month after Agnew made his assignment I heard of plaintiff again; had seen him in the store before this, but did not speak to me about the note; not till after the assignment; he did not call at my store, to my knowledge, till next week after the note expired; I did not see him or hear of him.”
    Agnew Duff testified: “I received information from John O. Duff that the plaintiff had $1000 to loan; I went out to see Mr. Williams; met him between the house and the barn; he seemed to know what I was after; told me to come into the house; said he had got $500 more, and wished to put it all out together; he brought out $1500; the note was prepared in his house, on his table; he said he did not know but he ought to have John C. Duff on the note, but he thought it was good enough without; I said I thought it was myself; he said nothing about John having agreed to go on it; the only explanation I can give why I wrote ‘ we ’ in the note is, that when Williams made the remark about John going on it, I said maybe he would; this is all I can tell about it; I did not say he would go on it, but merely that perhaps he would do so; I had'no authority to say he would go on it.”
    The fourth and fifth points of the defendant, with the answers of the court, Hice, P. J., were as follows:—
    4. To enable the plaintiff to recover the jury must believe that John O. Duff represented his brother Agnew to be in good and solvent circumstances at the time the plaintiff applied to him ; that the plaintiff, owing to his relations with the defendant, had a right to rely upon such representation; that such representation was false; that John O. Duff knew and believed, or had reason to know or believe it to be false, and made such representation recklessly, without any just reason for making the same, and with the design and intent fraudulently and dishonestly to enable his brother to obtain the plaintiff’s money.
    Ans. “We cannot affirm this point in all its length, and make it as stated. It is necessary that the jury find as facts in the case that defendant represented his brother as in good and solvent circumstances at the time the plaintiff applied to him, and that such representations were false; but no special relation between the plaintiff and defendant was necessary. In this regard it would be sufficient if the plaintiff went to the defendant to loan him the money, and the defendant not wanting it, then and there made the alleged false representations with the view to enable his brother to get the money, without showing any other relations between the parties, such as those of special trust, confidence, or anything of the kind, nor was it necessary that the defendant, if he made the statements and representations, actually knew them to be false. If he made them recklessly, without sufficient reason for knowing and believing them to be true, and with the intent to enable his brother Agnew thereby to obtain the plaintiff’s money, and the representations turned out afterwards to be false, and damage resulted, it would be sufficient to create the liability of defendant, without it appearing that the defendant knew, or had reason to know or believe them false.”
    5. If the jury believe that John O. Duff from time to time sought information as to his brother’s standing financially, and with an honest belief that he (Agnew) was solvent and could pay his debts, so represented his circumstances to Williams, the plaintiff cannot recover, even if such representation turned out after-wards to be incorrect.
    Ans. “ This we affirm — if by ‘so represented his circumstances to Williams,’ wo are to understand, giving or communicating information to plaintiff as information thus obtained merely; but the case would bo different if he made the representations and statements as actual facts of his own knowledge.”
    The verdict was for the plaintiff for $1491, and defendant took this writ, assigning for error, inter alia, the foregoing answers to his points.

      S. B. Wilson and Frank Wilson, for plaintiff in error.
    — The only question was whether John C. Duff made the representations in good faith, and the defendant having offered evidence to show that they were so made, the jury should have been instructed that if they believed this evidence, there could be no recovery in this form of action: Bokee v. Walker, 2 Harris 139; Dilworth v. Bradner, ante, 238,

      John J. Wickham, for defendant in error.
   Mr. Justice Sterrett

delivered the opinion of the court, January 7th 1878.

In answer to the fourth point the learned judge said to the jury that, if the defendant made the alleged statements and representations, it was unnecessary to show that he “ actually knew them to be false. If he made them recklessly, without sufficient reason for knowing and believing them to be true, and with intent to enable his brother Agnew thereby to obtain the plaintiff’s money, and the representations afterwards turned out to be false and damage resulted it would be sufficient to create the liability, without it appearing that the defendant knew or had reason to know or believe them false.” This instruction was not strictly correct. It ignored the fact that the defendant may have honestly believed that the statements and representations were true ; and it permitted the jury to inquire, not whether, in point of fact he did so believe, but whether he had sufficient reason for knowing and believing them to be true. They might he satisfied that he had entire confidence in the truth of all that he stated, in regard to his brother’s solvency, and yet, at the same time they might come to the conclusion that he had not sufficient reason for the faith that was in him, and thus hold him responsible, not for the want of an honest belief, but for the insufficiency, in their judgment, of the reasons upon which it was founded. The defendant may have spoken inconsiderately or even recklessly, yet if he believed what he said he was not liable. It is said by Chief Justice Gibson in Bokee v. Walker, 2 Harris 139, that “in actions of deceit the jury have to deal with a question of good faith, and if they are satisfied that the defendant believed his own story it is their duty to find in his favor. * * * A man who believes what he says is not chargeable with bad faith ; and the state of his belief is a fact for the jury. * * * Sincerity of belief, however apparently unfounded, is an unmixed matter of fact; and, if it were not the test, every recommendation would be a warranty.” If the defendant asserted as facts, matters of which he had neither knowledge nor belief, or if he knowingly falsified or wilfully suppressed the truth, and did so not for the purpose of injuring the plaintiff, but with the view of giving credit to his brother, he was guilty of falsehood and would be responsible for all the consequences directly resulting therefrom. “ A man who asserts what he does not know is guilty of duplicity, though he happen to assert the truth; and whatever the motive he is not the less dishonest.” But this was not the question submitted to the jury. It appears to have been taken for granted that the defendant had some knowledge of his brother’s financial condition; and the questions raised by the plaintiff’s counsel were whether the statements he made were wilfully false, or whether he had any sufficient reason for believing them to be true. Of course the grounds of his alleged belief were proper subjects of inquiry in determining whether or not a sincere belief was entertained; but after all it must come back to the question of good faith on the part of the defendant. Did he honestly believe that the statements he made were true, or did he know that they were false ? We are of opinion that the question was 'submitted to the jury in a manner that was calculated to lead them into an inquiry that was irrelevant, and prejudicial to the defendant; and for this reason the first assignment of error should be sustained.'

The defendant was entitled to an unqualified affirmance of his fifth point, in which the court was requested to say, “if the jury believe that John C. Duff, from time to time, sought information as to his brother’s standing, financially, and with an honest belief that he was solvent and could pay his debts, so represented his condition to Williams, the plaintiff cannot recover, even if such representations turned out afterwards to be incorrect.” This was putting the defence on its true ground — that of good faith. While the learned judge affirmed this proposition, he did so with a qualification which greatly weakened its force, by saying, “ if by the words ‘ so represented his circumstances to Williams,’ we are to understand giving or communicating information to the plaintiff, as information thus obtained merely; but the case would be different if he made the representations as actual facts, as of his own knowledge.” The jury would likely understand from this that the defendant was bound to inform the plaintiff that ho had made inquiry as to his brother’s standing, and give him in detail the information he had thus obtained, so that he might have the data from which to draw his own conclusions. Of course there could have been no objection to this mode of imparting information to the plaintiff, but it is not the only way in which it could be honestly done. He could, with equally good faith, state, as conclusions of fact, the inferences Avhich he drew from the information he had obtained. If, as the result of inquiry, he came to the conclusion that his brother’s financial standing was as good as his own, what would be the impropriety of honestly stating this to the plaintiff, as a fact, instead of communicating to him the items of information upon which he had formed his judgment and belief? Taking into consideration all that was said and done, it must, after all, resolve itself into a question of sincerity and good faith. The principles involved are so clearly stated in Bokee v. Walker, supra; Boyd’s Ex’rs v. Browne, 6 Barr 310; Huber v. Wilson, 11 Harris 178; Rheem v. The Naugatuck Wheel Co., 9 Casey 358; Graham v. Hollinger, 10 Wright 55, and Dilworth v. Bradner el al., ante 238, that it is unnecessary to pursue the subject any further.

Judgment reversed, and a venire facias de novo awarded.