text:
    Allum’s Ex’rs versus Carroll’s Adm’rs et al.

    1. In an action against three, heard before arbitrators, the plaintiff called Carroll, one of the defendants; McKenna, another of the defendants, was then examined on their behalf. There was an appeal, afterwards Carroll died. On the trial in court McKenna could not he examined by the defendants nor his testimony before the arbitrators read.
    2. On the trial of an appeal the proceeding is de novo.

    3. On the trial the case stood under the Act of April 13th 1869, and .the plaintiff being dead a defendant was not a witness.
    4. McKenna not having been called by the plaintiff, his credibility had not been endorsed by him.
    November 15th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Cfreene county: Of October and November Term 1870, No. 191.
    This was an action of assumpsit by James Allum, executor, &e., of Charles Allum, deceased, against William McKenna, Thomas Carroll and Robert McKenna, on a note to the decedent, dated September 25th 1864, payable in twelve months, for $856, signed by the three defendants. The execution of the note was admitted. The defence rested upon declarations of the decedent in his lifetime, that McKenna, the principal in the nóte, had borrowed but $300 instead of $856.
    The case had been heard before arbitrators, when the plaintiff called Thomas Carroll, one of the defendants, to testify; the defendants then examined W. McKenna, another defendant. There was an appeal from the award of arbitrators; afterwards Carroll died, and his administrators were substituted.
    January 3d 1871,
    On the trial in court, September 24th 1870, before Gilmore, P. J., the note having been given in evidence, and these proceedings before the arbitrators admitted; the defendants offered to call W. McKenna and prove by him that the note in suit had been signed by mistake, and when it was discovered it was laid aside, and a note given for $300 which was the only money then borrowed. The offer was made on the ground that the plaintiff having called Carroll made all the defendants competent.
    The offer was overruled.
    The defendants then offered to prove what W. McKenna had said on the hearing before the arbitrators. The plaintiff objected that as the plaintiff had not called one of the co-defendants on the trial, it was not competent to prove what McKenna • said on the hearing before the arbitrators.
    The court admitted the offer and sealed a bill of exceptions for the plaintiff.
    The verdict was for the defendants.
    The defendants below took a writ of error and assigned the admission of the evidence for error.

      C. A, Black, J. Phelan and R. W. Downey, for plaintiffs in error,
    cited Act of April 10th 1867, § 1, Pamph. L. 60, Purd. 1463, pl. 1; Seip v. Storch, 2 P. F. Smith 210; Acts of March 20th 1810, § 8, 5 Sm. L. 165, Purd. 597, pl. 52; March 28th 1814, § 1, 6 Sm. L. 208, Purd. 425, pl. 22; Dyott’s Estate, 2 W. & S. 463; Leeds v. Bender, 6 Id. 318; Act of April 9th 1870, Pamph. L. 44; Wolfinger v. Forsman, 6 Barr 390; 1 Greenl. Ev., § 418.

      A. A. Pwrman, for defendant in error.
   The opinion of the court was delivered,

by Agnew, J.

This was an action against three joint promissors, and had been tried before arbitrators, when the plaintiff called upon Thomas Carroll, one of the defendants, to testify, under the provisions of the Act of 27th March 1865. The defendants then, under the Act of 10th April 1867, called upon William McKenna, another of the defendants, to testify. Carroll died after an appeal taken, and at the trial of the cause in court in September 1870, the defendants offered in evidence the testimony of McKenna as given to the arbitrators, which the plaintiff objected to as incompetent, and it was received by the court. This, we think, was an error. McKenna himself was incompetent to testify under the Act of 15th April 1869, Charles Allum being dead, and the action in the name of his executor. On the trial of an appeal the proceeding is de novo, and it required an Act of Assembly to make a deposition taken to be read before arbitrators competent to be read afterwards on the trial in court. McKenna’s testimony was made competent before the arbitrators, not by being called by the plaintiff and his credibility thus endorsed by him, but by the calling of Thomas Carroll, a co-defendant. It is true the plaintiff by calling Carroll ran the risk of any one of his co-defendants being called by the adverse party; but this risk was assumed solely on the ground that it could safely be met by the testimony of Carroll. But when Carroll died the circumstances changed. Then the case stood precisely upon the reason of the Act of 1869, which excludes one party when the other is dead; that is, because it would be unjust to hear one party when the other party could not be called to contradict him, or to explain what might be even the truth. Carroll being dead, the plaintiff was not bound to call either of the other defendants, and in fact did not. On what proper ground, therefore, can the defendants be permitted to give in evidence the former testimony of one of them called only to rebut or explain the testimony of Carroll ? The plaintiff had not endorsed his credibility, and had not chosen that he should be heard alone. His former testimony was not more competent than his present testimony, and that the judge had properly excluded and given to the defendants a bill of exceptions.

Eor the error stated the judgment is reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: by Williams, J.

license: Public Domain

text:
    Davis et ux. versus Zimmerman et al.

    1. Mrs. Davis bought a horse in. West Virginia (where the common law as to husband and wife prevailed), to he paid for from her share of her father’s estate in Pennsylvania. Her note for the purchase-money was taken to the vendor by her husband and the horse delivered to him; being in his possession in Pennsylvania it was sold under an execution against him to the creditor; the wife afterwards paid the note from her separate estate. Held, that the horse had become the property of the husband on its delivery to him and was liable to be seized for his debt.
    2. The mere delivery of the horse to the husband for the wife, without any act or declaration by him, was not a waiver of his marital rights nor evidence of his assent from which the jury could find it.
    3. The case was to be determined by the rules of the common law.
    November 15th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Gtreene county: Of October and November Term 1870, No. 114.
    This was an action of replevin commenced April 28th 1868, for a mare, by James Davis and Phoebe his wife against Mary Zimmerman and^John Zimmerman. The mare was levied on and sold under an execution against James Davis at the suit of the defendants, and was bought by them. Mrs. Davis alleged that the mare was her separate property, and brought this replevin for its recovery.
    On the trial, June 15th 1870, before' Gilmore, P. J., the following facts were agreed on:—
    1. That Mrs. Davis bought the horse of Mrs. Dollison, and was to pay for it when she got the money from her father’s estate; that she did get the money from her father’s executors on the day of the arbitration of this case, and paid for the horse with the identical money she got from her father’s executors; that the note given for the purchase-money of the horse was carried to Mrs. Dollison by the husband of Mrs. Davis, and that the horse was delivered to Davis by Mrs. Dollison for Mrs. Davis, the contract made and the horse delivered in West Virginia, and the money paid in Pennsylvania — and the money she paid for the horse was derived from an estate in Pennsylvania.
    2. That the judgment against Davis on which the horse was sold was regular, and that execution was issued thereon from before Justice Webb; that the horse was seized within the state of Pennsylvania and sold regularly before the payment of the note given for the horse by Mrs. Davis.
    The plaintiffs asked the court to charge:—
    “ That the jury may find from the evidence, as agreed upon in this case, that the horse in controversy was bought and paid for by the female plaintiff with her own separate money, which her husband had never reduced to possession, and by moneys over which he had no control, and that the husband agreed for a valuable consideration, prior to the purchase by the wife, that the said horse should remain the property of the female plaintiff, and that by such agreement he released all right of property in said horse; that the horse was delivered to the female plaintiff; that the possession continued in the female plaintiff; and if they so find the facts, such a purchase and delivery of the horse to the female plaintiff would vest in her a good legal title to the property in controversy, and the husband and his execution-creditors are estopped from setting up any title to the property, and the plaintiff is entitled to recover.”
    The court charged: — •

      “ Our refusal to affirm the plaintiffs’ point, which you have just heard read and answered, comprises the whole case. When this contract for the sale of this horse was made in West Virginia, the law therd regulating the rights of husband and wife was the same as in our state before the passage of the Act of 1848. The rights existing in this relation were governed by the common law as respects personal property. The possession by the husband (however it might he understood otherwise) gave the property at once to the husband. The fact of possession nolens volens invested him with the property in the article.”
    January 3d 1871,
    The verdict was for the defendants.
    The plaintiffs took out a writ of error, and assigned for error the refusal to affirm their point, and the charge.

      G. W. E. Waddell and A. A. Purman, for plaintiffs in error.
    In equity, a married woman, before the Act of 1848, was allowed to own property for her separate use, free from the debts, &c., of her husband: 2 Story’s Eq., § 1368; Livingston v. Livingston, 2 Johns. Ch. R. 539; Glancy’s Husband and Wife 251, 252; 2 Kent’s Com. 147; Arundell v. Phipps, 10 Ves. 144-149; Griffith v. Griffith, 5 B. Monroe 115; Frarey v. Booth, 4 Am. Law Reg. N. S. 142. And can acquire it by agreement with her husband : McKennan v. Phillips, 6 Whart. 576; 2 Kent’s Com. 147; 1 Bac. Abr. tit. Baron and Feme, M. 508; Jamison v. Brady, 6 S. & R. 466; 2 Story’s Eq., § 1368-1372; 1 Fonbl. Eq., b. 1, ch. 2, note n; Harvey v. Harvey, 1 P. Wms. 125-126; Bradish v. Gibbs, 3 Johns. Ch. R. 523, 540; Sidler v. George, 4 Rawle 469. The husband may agree with his wife that if §he will purchase property with her own money it shall be for her and for her own use, and when so purchased it is exempt from seizure and sale by his execution-creditors: Dennison v. Nigh, 2 Watts 90; Hulme v. Tennant, 1 Bro. C. C. 16; 1 Leading Cases in Equity 389-414; Smethurst v. Thurston, Brightly’s R. 127; Timbers v. Katz, 6 W. & S. 290; Harvey v. Harvey, 1 P. Wms. 125; Rolfe v. Budder, Bunb. 187; Bennet v. Davis, 2 P. Wms. 316; Rich v. Cockel, 9 Ves. 369; Parker v. Brooks, Id. 583; Glancy’s Husband and Wife 256-259; Gamble’s Estate, 1 Pars. R. 489.

      Wyly & Buchanan, for defendants in error.
    A wife’s chose in action and chattels, before the Act of 1848, passed to the husband : Timbers v. Katz, 6 W. & S. 281; Gickers v. Martin, 14 Wright 138; 2 Black. Com. 435; Glancy’s Husband and Wife 1-4; Smith on Contracts 298. Declarations of trust in favor of a wife should be narrowly scanned: 1 Barr 329; Gochenaur’s Estate, 11 Harris 463.
   The opinion of the court was delivered,

by Williams, J.

This was an action of replevin by husband and wife, in right of the wife, for a bay mare which the defendants had purchased at a constable’s sale as the property of the husband. The plaintiffs reside in West Virginia, and it was admitted, on the trial in the court below, that the wife bought the horse in that state, and was to pay for him when she got the money from her father’s estate in Pennsylvania; that the note given for the purchase-money was carried bythe husband to the vendor, who delivered the horse to him for the wife; that subsequently to the purchase the horse was seized in this state upon an execution issued on a judgment against the husband before a justice of the peace, and regularly sold to the defendants^ before the payment of the note given for the price; and that after the commencement of this action the wife paid for the horse with the money she got from the executors of her father’s estate. It was also shown on the trial that at the time of the purchase of the horse, and its seizure and sale by the constable, the rights of husband and wife in West Virginia, in relation to personal property, were governed and controlled by the rules of the common law; and if the personal property of the wife was levied on and sold for the husband’s debts prior to the adoption of the Code which went into effect on the 1st day of April 1869, the purchaser would acquire a good title thereto as against the wife.

The plaintiffs requested the court to charge: That the jury may find from the evidence, as agreed upon in this case, that the horse in controversy was bought and paid for by the wife, with her own separate money, which her husband had never reduced to, possession, and over which he had no control, and that the husband agreed for a valuable consideration, prior to the purchase by the wife, that the horse should remain the property of the wife, and that by such agreement he released all right of property in said horse, that the horse was delivered to the wife, that the possession continued in the wife, and that if the jury so find the facts, such a purchase and delivery of the horse to the wife would vest in her a good legal title to the property in controversy, and the husband and his execution-creditors are estopped from setting up any title thereto, and the plaintiffs are entitled to recover. The court refused to charge as requested, and instructed the jury that when the contract for the sale of the horse was made in West Virginia, the law there regulating the rights of husband and wife was the same as in our state before the passage of the Act of 1848. The rights existing in this relation were governed by the common law as respects personal property. The possession by the husband (however it might be understood otherwise) gave the property at once to the husband. The fact of possession nolens volens invested him with the property in the article.

Did the court err, as alleged by the plaintiffs, in refusing to charge as requested, and in the instruction given to the jury ? It is clear that, under the evidence, there was no error in the refusal of the court to give the instruction prayed for. The facts agreed upon by the parties do not show that the husband consented to waive his marital rights, or that he agreed that the horse should be and remain the property of his wife, and there is nothing'in the admitted facts' from which such waiver or agreement can be fairly inferred. The fact that the horse was delivered to the husband for the wife, without any act or declaration on his part, was not a waiver of his rights, nor was it any such evidence of his assent that it should he and remain her property as would justify the jury in finding it. We are therefore relieved from the necessity of determining whether by the common law a husband could make a valid and binding agreement with the wife, so as to protect her chattels in possession from liability to seizure and sale for his debts. The case falls clearly within the common law, unaffected by any waiver of the husband’s rights, and must be determined by its well-established rules ; and it is horn-book law that by marriage the husband becomes the immediate and absolute owner of the personal property of the wife, which she has in possession at the time of the marriage in her own right, and it never can again revest in the wife or her representatives. She can acquire no personal property during coverture, and if she obtains any by gift or otherwise, it becomes immediately, by operation of law, without any act on his part, the property of the husband. Her acts of ownership are his acts of ownership, a'nd her possession is his possession, and so is the property. It follows that upon the delivery of the horse in question to the husband for his wife, it became immediately the property of the husband, liable to be seized and sold for his debts.

Judgment affirmed.


author: by Sharswood, J.

text:
    Cross versus Noble.
    1. A married woman and her husband by articles not acknowledged, agreed to sell her land, part of the purchase-money to be secured by judgment bond, and possession to be delivered at a day named. The deed of the husband and wife with warranty was delivered and the bond given ; the vendee could not get possession as stipulated, the premises .being under a lease of which he was ignorant. Held, that he had a defence against an action on the bond to the extent of his injury, notwithstanding the coverture of the vendor.
    2. The vendee was entitled to the rent reserved under the lease, and his receipt of it would not preclude him from setting up failure of title to the extent of his real injury, allowing for what he had received.
    3. The vendor’s defence was not set-off, which is a cross action, and in which the personal liability of the vendor to damages woujd have arisen.
    4. Had the whole purchase-money been paid, the vendee could not have sustained an action against the vendor either on the article or the deed.
    5. In an action to recover the consideration of a sale, the defendant may show that the consideration has failed in whole or in part.
    6. Steinhauer v. Witman, 1 S. & R. 438, a leading case.
    November 15th 1870.
    Before Thompson, C. J., Read, Agnew, . Sharswood and Williams, JJ.

      Error to tbe Court of Common Pleas of Butler county: Of October and November Term 1870, No. 124.
    On the 6th of February 1867, a judgment was entered in tbe Court of Common Pleas of Butler county in favor of Catharine Gr. Noble, wife of Daniel D. Noble, against John Cross, for $600 on a bond with warrant of attorney. The bond was given for part of tbe purchase-money of a tract of land belonging to Mrs. Noble.
    On the 26th of January 1867, an agreement was made by Mrs. Noble and her husband with tbe defendant in tbe judgment, to sell him tbe land for $2300, of which $1700 were to be paid on tbe delivery of tbe deed, and tbe remainder in six annual instalments of $100, with interest; with tbe stipulation “ that party of tbe first part shall give party of tbe second part’possession on tbe 1st of April.” The agreement was signed by Mr. and Mrs. Noble, with their seals, but was not acknowledged.
    On tbe 4th of February, a deed for tbe premises, with general warranty duly acknowledged by Mr. and Mrs. Noble, was delivered to Cross; be paid tbe purchase-money, and executed and, according to the stipulation of tbe articles, delivered tbe bond, being that on which tbe judgment was entered. It afterwards appeared that tbe property was under a lease to one Michael Murrin until tbe 1st of April 1868, and in consequence Cross was not able to get possession until that time.
    On tbe 23d of April 1867, Cross petitioned tbe Court of Common Pleas, setting out these facts; also that be did not know of tbe lease until after paying tbe $1700 and giving tbe bond for $600, averring that be bad sustained damage to tbe amount of $300, besides $15.55 costs in endeavoring to obtain possession; and praying for a rule to show cause why be should not have credit to that amount on bis judgment. A rule was granted according to bis prayer, and on its bearing, tbe court directed an issue on a wager, in which Cross was plaintiff and Mr. and Mrs. Noble defendants, to try “ bow much damages (Cross) is entitled to recover from (Mrs. Noble) in consequence of tbe non-delivery of possession of the land * * * tbe amount thereof to be entered a credit upon tbe judgment upon tbe instalments due and to become due annually hereafter.”
    On tbe trial, tbe facts above stated appeared; there was evidence also that Cross bad received profits, &c., from tbe land duringjbe year ending April 1st 1868.
    Tbe plaintiff’s 2d and 3d- points, with their answers, were as follows:—
    “ 2. Tbe plaintiff cannot recover, because at tbe time of tbe execution of tbe article of agreement and deed Catharine Gr. Noble was a married woman, living with her husband, Daniel D. Noble.” -
    “We answer: That if tbe jury believe Catharine Cr. Noble, from the evidence before them, was at the time of the making of the article a married woman with a husband living with her, and he did not join with her in the writing in evidence, we answer in the affirmative.”
    “ 3. The article of agreement entered into by Catharine G, Noble with John Cross, in evidence in this case, was void and not binding on her, she being a married woman, and therefore the plaintiff cannot recover.”
    “We say to the jury, if from the evidence it appears she was and still is a married woman, the article of agreement would not be binding upon her without her consent, and therefore in the issue joined the plaintiff under the evidence (she having interposed her coverture), if believed, is not entitled to recover.”
    The court charged also :—
    * * * “ Her contract not being acknowledged before a justice of the peace, or other competent authority, is not binding upon her if she refuses to execute it. If, however, she afterwards executes- the contract by the delivery of a deed for the land, her husband joining her, and the same being duly acknowledged and delivered, would pass her title to the land therein described, and the plaintiff would be entitled to the possession according to the terms of the contract of bargain and sale. No question is raised as to the delivery of the deed or the payment of the hand-money. But it is one of possession, the contract providing for the delivery of the possession upon the 1st of April 1867, and the non-delivery thereof at the time, Cross claims the right in equity to have defalked from her claim on said judgment such amount as you may determine he is entitled to. And the question you may decide under the instructions we may give you upon the law arising upon the facts before you.
    “ The bond provides for the payment of $600 in annual instalments of $100 each, and whatever amount you shall allow would be a credit upon those instalments first falling due.
    “ It is denied on the part of Catharine G. Noble that she is responsible to Mr. Cross in any way, or to be held liable for any damages claimed by him for the non-delivery of the possession-of the land at the time stipulated in the contract; that being a married woman at its date, she is not responsible upon the contract or article because not being joined therein by her husband, and, not being acknowledged before competent authority according to law, the same is not binding upon her, and the plaintiff is not entitled to be allowed any credit upon the judgment. The facts are for you, and if you are satisfied from the evidence that they are as she alleges, we instruct you, as we have already declared, that she is not bound or responsible for damages upon the article of agreement. The law will not hold her responsible when she sets up her coverture. Although perhaps he might be compelled to comply if she were seeking to enforce the contract, as was formerly understood by the profession. Yet now I doubt whether specific execution of the contract would be enforced against him in her favor.”
    January 5th 1871,
    The verdict was for the defendants.
    The plaintiff took a writ of error, and assigned for error the’ answers to his points, and the portion of the charge given above.

      E. M. Bredin, for plaintiff in error.
    Mrs. Noble in this proceeding is seeking to recover purchase-money; Cross is defending for defect of title. His defence is equitable; and, to the extent he is injured in not obtaining possession, he has the right to reduce the unpaid purchase-money.

      L. Mitchell, for defendants in error.
   The opinion of the court was delivered,

by Sharswood, J.

The three assignments of error, grounded upon exceptions to the charge and the answers of the learned judge below to the 2d and 3d points of the defendants, depend upon a single question: Whether, when a deed has been delivered containing no covenants, and the vendee has taken possession, he can defend against an action for the unpaid purchase-money by showing a defect in the vendor’s title ? It must be conceded that Mrs. Noble being a married woman when she executed the article and the deed, was not personally bound by any covenant contained in either. No action upon them could have been successfully maintained against her. We must strike out of the article the agreement to give possession on the 1st of April, and from the deed the covenant of special warranty. How, then, does the case stand ? . This is an issue awarded to ascertain the amount due upon a judgment entered upon a bond given for the purchase-money. It is to be considered to all intents as an action upon the bond by Mrs. Noble, the vendor. The existence of a valid lease for one year from the 1st of April 1868, when possession was to have been given, a fact not known at the time of the agreement, was undoubtedly a defect — an incumbrance — reducing the value of the land to the vendee: Dick’s Appeal, 7 P. F. Smith 467. What that reduction was, the jury are to settle, under proper instructions from the court. The vendee, as assignee of the reversion, was entitled to the rent reserved to the vendors; and his receipt of it from the tenant would not preclude him from setting up the failure of title to the extent of his real injury, allowing for what he had so received. The defence of the vendee in such a case is not defalcation or set-off. Then, indeed, the question of the personal liability of the vendor to damages would arise. A set-off is a counter claim — a cross action. Had the purchase-money been paid in full, Cross could not' have sustained an action against Mrs; Noble, either upon the article or the deed. Coverture would have been a good plea in bar. If the plaintiffs had brought an action upon another distinct contract against Cross, he could not have availed himself of the breach of either of these covenants under a plea of payment or set-off. Coverture would have been a good replication. But when a plaintiff — covert or sui juris — sues to recover the consideration of a sale, it has always been competent for the defendant to show that such consideration has failed in whole or in part. In the leading case of Steinhauer v. Witman, 1 S. & R. 438, there was only a covenant of special warranty, and the defence set up to the recovery of the purchase-money was eviction under a paramount title not within the terms of the covenant, and therefore the case was the same as if there had been no covenant at all; and Mr. Justice Kennedy, in Roland v. Miller, 3 W. & S. 390, has stated the rule as it has always been understood and acted upon in this state. The doctrine of Steinhauer v. Wit-man is, that if the consideration-money has not been paid, the purchaser, unless it plainly appear that he has agreed to run the risk of the title, may defend himself in an action for the purchase-money, by showing that the title was defective, either in whole or in part, whether there was a covenant of general warranty or of right to convey or quiet enjoyment by the vendor, or not; and whether the vendor has executed a deed of conveyance for the premises or not:” Lloyd v. Farrell, 12 Wright 73; Weakland v. Hoffman, 14 Id. 513; Herrod v. Blackburn, 6 P. F. Smith 103; Dankel v. Hunter, 11 Id. 382.

Judgment reversed, and venire facias de novo awarded.


author: by Agnew, J.

text:
    Cunningham versus Mitchell.
    1. The Acts of March 25th, April 8th, August 25th 1864, and May 1st 1866, give authority to school directors, &c., to levy taxes to pay bounties to volunteers; and they having jurisdiction of the subject-matter, a warrant to collect such taxes is a justification to the collector, notwithstanding the previous proceedings of the directors may have been irregular.
    2. In collecting such taxes directors and other authorities must proceed in the same manner as that in which they respectively collect other taxes levied by them.
    3. The directors are the proper judges in the first instance to determine when and to whom to pay bounties and raise taxes for the purpose.
    4. A collector having a warrant from an authority having power to issue it, cannot inquire into the precedent steps.
    5. An inferior public officer acting within the scope of his warrant when apparently regular, is protected, unless the authority issuing it is without jurisdiction.
    6. Moore v. Allegheny, 6 Harris 58, recognised.
    November 15th 1870.
    Before Thompson, C. J., Read,. Agnew, Sharswood and Williams, JJ.

      Error to the Court of Common Pleas of Fayette county: No. 27, to October and November Term 1870.
    This was an action of trespass, issued February 19th 1868, by David Mitchell against Francis M. Cunningham. The cause of action was the seizure and sale by the defendant of a wagon belonging to the plaintiff. , The defendant justified under a warrant from the school directors of Stewart township for the collection of a tax assessed by the school directors, under the Act of May 1st 1866, to pay $600 — bounties to two veteran volunteers — the defendant being one, and one Williams, a member of the school board which authorized the tax, being another. The evidence showed that a resolution to raise by tax the amount to pay the bounties was adopted by the school boards — the duplicate in pursuance of the authority in which the plaintiff was charged with $18.27, the warrant to the defendant as collector, the demand on the plaintiff for the tax and his refusal.
    There was no evidence that Stewart township had offered to pay bounties to volunteers.
    The defendants’ point was: “ The plaintiff is not entitled to recover, if the jury believe from the evidence that the defendant levied upon and sold the plaintiff’s property by virtue of a warrant signed by the president of the school board, and countersigned by the secretary of said board of Stewart township, authorizing him to collect bounty tax, the plaintiff having refused to pay said tax after demand made by the defendant.”
    This point was refused,.and Gilmore, P. J., further charged: * * * “ Stewart township never paid or agreed to pay bounties. The single question is, had the board of school directors or any four of them the right to levy the tax and issue a warrant for its collection ? It is decided that this cannot be done, and so far as this tribunal is concerned that ends the matter, and leaves you only to assess the damages, which we think should be nothing more than compensatory,” &c. t
    The verdict was for the plaintiff for $23.60.
    The defendant took a writ of error and assigned for error the answer to his point and the part of the charge given above.

      A. E. Willson (with whom was G. W. K. Miner), for plaintiff in error.
    The proceedings to levy the tax not having been restrained, the duplicate and warrant justified the collector. The directors had jurisdiction of the subject-matter, and the collector could not go behind his warrant: Clinton School District’s Appeal, 6 P. F. Smith 315; Wharton v. Birmingham, 1 Wright 371; Moore v. School Directors of Clearfield, 9 P. F. Smith 234.

      C. E. Boyle (with whom was A. Howell), for defendant in error,
    cited Washington Co. v. Berwick, 6 P. F. Smith 466; Hilbish v.
      Hower, 8 Id. 94; Meek v. Bayard, 3 Id. 217; Susquehanna Depot v. Barry, 11 Id. 317; Stephens v. Wilkins, 6 Barr 260; Pearce v. Torrence, 2 Grant 82; Petersburg v. Noss, 2 P. F. Smith 448.
    January 3d 1871,
   The opinion of the court was delivered,

by Agnew, J.

The defendant below was a collector of bounty taxes appointed by the board of school directors of Stewart township, and acting under a regular warrant for collection of taxes in a duplicate put into his hands by the board. The plaintiff below brought an action of trespass against him for levying upon and selling a wagon of the plaintiff for taxes contained in the duplicate which he had refused to pay. No objection was made to the regularity of the warrant and assessment, but the court below held that the defendant was not protected by his warrant, on the ground that the board of school directors was not authorized to levy the tax. We think the judge erred in this.

The 6th section of the Act of 25th March 1864 confers power on the county commissioners to raise money to pay bounties to every volunteer from the county entering the military or naval service of the United States after the 17th October 1863, and to every one who should enter the service and be credited to the quota of the county after the date of the act.

The act is retrospective as well as prospective. If the commissioners neglect or refuse to perform their duty, any township, ward or borough by their authorities, to wit, school directors, ward commissioners or supervisors, shall have power to proceed and raise bounties as fully and effectually as if done by the county authorities. The 7th section makes provision for levying the taxes, which shall be collected as county, city, ward or borough taxes are levied and collected. The 1st section of the Act of 8th April 1864, supplementary to the act referred to, declares it. to be the true intent and meaning of the former act, that school directors of each and every ward and borough in the Commonwealth are as fully empowered to assess and collect taxes to pay bounties to volunteers, and to issue bonds in payment of the same as the school directors are authorized to do by said act. This was followed by the Act of 25th August 1864, which again invested the authorities of any city, borough, township and ward with power to borrow money and levy and assess taxes for the payment of bounties as fully, to all intents and purposes, as the county commissioners might or could have done under the provisions of the former act. Volunteers who re-enlist and have been termed veterans, were expressly included in the terms of the Act of 25th March 1864, by the 12th section. After these acts came that of the 1st May 1866, which expressly authorized the payment of bounties to all veterans re-enlisting under General Orders, No. 191, from the War Department, dated June 25th 1863, and its supplements extending to April 1st 1864. The 3d section of the Act of 1866 expressly authorizes the school directors or other proper authorities to levy and collect a sufficient tax to pay such veteran volunteers or their heirs or legal representatives. The practice under these acts has been for the authorities who levy and collect the tax to proceed in the manner prescribed by law for the collection of taxes by such authorities; that is, school directors according to the mode provided by the school law, and other township authorities in the mode prescribed for them. This mode of proceeding has been recognised by this court as the proper one in the case of Chalker v. Ives, 5 P. F. Smith 83. Thus we find the school directors clothed with full and general power to assess and collect taxes for the payment of bounties including those to veterans; making them, in the first instance, the proper judges to determine when and for whom to pay bounties and raise taxes for this purpose. But it was said by the'court below, and the opinion of the judge is founded on this ground, that Stewart township or its authorities had never offered to pay bounties to volunteers, and therefore, under the decision of this court, in Washington County v. Berwick, 6 P. F. Smith 466, the assessment of taxes to pay bounties was illegal. This was not the precise point decided in that case; but let it be so considered, as a corollary from the decision, yet the judge fell into error when he held that the collector could be made liable in an action of trespass for the irregularity, when acting under a warrant entirely regular on its face, and issued by a board having full general jurisdiction and power over the subject.

It is very evident that the irregularity arises not because of a want of power or authority to levy and collect taxes to pay bounties to veteran volunteers, but from a misjudgment of the directors of the case in which they should exercise the power. When a collector takes a warrant regular on its face issued by an authority having lawful power to issue it, how can he inquire into the precedent steps and determine that in his opinion the power has not been exercised in a proper case. This determination does not belong to him but to the board whose warrant he must obey. Any other doctrine would put an end to the collection of taxes whenever a difference of opinion arises as to the object to which the tax is to be applied. If officers having a full power to act in such a matter, attempt to exercise it for a purpose not lawful, they are to be held amenable, and they may be enjoined by the courts, or may be mulcted in damages in trespass; but having a power to act, their misjudgment of the case in which it is proper to exercise their-power, is not to be visited on their subordinate who acts under a proper warrant from them. In the case of public officers, an inferior acting within the scope of his warrant, when apparently regular, is always protected; unless the authority issuing it was without jurisdiction. It has been a question how far this protection extends, when the superior authority acts, irregularly and illegally. But now the doctrine appears to be settled as it should be that even in such case the inferior has to look only to his warrant, and cannot be required to rejudge the judgment of his superior. Certainly it must be considered as so settled in this state since the case of Moore v. Allegheny City, 6 Harris 58, in which Judge Bell examines the question very elaborately, and says, it is now.settled that where the person or tribunal issuing the process has jurisdiction of the subject-matter, and the process is regular on its face, the officer executing it is not to be affected by any illegality in the previous proceedings.

The distinction is between the usurpation of a power not conferred, and the irregular or illegal exercise of a jurisdiction possessed. So in Paul v. Vankirk, 6 Binney 124, Ch. J. Tilghman held that a constable and his assistant might justify upon an execution though it was wholly irregular, saying, “It is enough for them to show an execution issued by competent authority. Whether the execution is supported by the judgment is a question in which it would be unreasonable for the law to involve them.” When the warrant is issued by one having no authority it will not protect, as held in Stephen v. Wilkins, 6 Barr 260, and Hilbish v. Hower, 8 P. F. Smith 93, but as remarked by Coulter, J., in the former case, a tax collector is the agent and minister of the law, but to almost all people an unwelcome messenger. The law whose servant he is will therefore protect him in all proper acts done within the scope of his authority.

Judgment reversed, and a venire facias de novo awarded.


author: by Thompson, C. J.

text:
    Garrard versus Haddan.
    1. Garrard signed a printed note, in the blank of -which was written “ one hundred,” leaving a blarik space between that and “ dollars” which was in print; this, after delivery, was filled with “fifty” in the same hand, and nothing in the appearance to raise a suspicion that it was not all right. Held, that Garrard was liable for the face of the note to a bonft fide holder for value.
    2. If the blank had been scored or the alteration in any way perceptible, a purchaser would have taken it at his own risk.
    3. If one by his acts, or silence or negligence, misleads another or affects a transaction whereby an innocent party suffers, the blameable party must .bear the loss.
    4. Worrell v. Gheen, 3 Wright 388, remarked on.
    November 16th 1870.
    Before Thompson, C. J., Read, Acnew, Sharswood and Williams, JJ.

      Error to the Court of Common Pleas of Fayette county: Of October and November Term 1870, No. 56.
    This was an action of assumpsit, brought August 25th 1869, by Armstrong Haddan against Joseph G-. Garrard.
    The case was tried February 4th 1870, before Gilmore, P. J.
    The plaintiff gave in evidence the following paper, the signature of which was admitted to be the defendant’s, and rested.
    “Luzerne, October 6th 1868.
    “ On or before the 1st day of August 1869, for value received, I promise to pay J. K. O’Neil, or bearer, One Hundred and fifty dollars, with use, without defalcation, or stay of execution. And hereby waive the benefit of the exemption and stay laws and requisition on real estate.
    “ Joseph G. Gakrarjd.
    “ Payable at the First National Bank of Brownsville.”

    The defendant gave in evidence a paper purporting to be an agreement between Smith, Clarke & Co. and himself, by which in consideration of $100 he was appointed agent to sell the hay-forks of Smith, Clarke & Co. He then testified that the note in suit was given for the consideration of the agreement, that the agreement was drawn .by a man named Enslow, representing himself to be agent of Smith, Clarke & Co. — that when he, defendant, signed the note it was for $100; it was a printed blank and was filled in by Enslow; that the note given in evidence was the one he then signed; he signed but the one note.
    A witness testified that he saw the note signed by the defendant, it was then for $100; he saw it the next day after its date. The plaintiff testified that he bought the note before it was due, directly after it was drawn, paid $25 less than its face for it, and had no knowledge that it had been altered.
    The jury by a special verdict found for the plaintiff for the sum of $162, with leave to the court, notwithstanding the verdict, to enter judgment for the defendant, if the court should be of opinion that the alteration of the note, after it was made and before it was negotiated, from one hundred to one hundred and fifty dollars makes the note invalid in the hands of an innocent purchaser for valuable consideration, either in whole or only to the extent of the alteration.
    Judge Gilmore delivered the following opinion on the point reserved: — “By inspection of the note, the most skilled expert would have failed to detect any alteration in its make: and yet it is established by the most undoubted evidence and so found by the jury that it was altered by the payee or the immediate bearer of the note by adding in the blank left, for the sum to be put in, the words‘and fifty’ immediately after the words ‘one hundred,’ making the note read ‘ one hundred and fifty’ instead of one hundred dollars,’ which it was before the alteration, and when it was executed by the defendant and passed to the bearer. The note was seen the day after its execution unaltered; but a few days after it was altered and passed before due to the present plaintiff for valuable consideration. * * *
    January 3d 1871,
    “ The fraudulent alteration or erasure of a deed avoids it in toto ; but we think it otherwise as to commercial paper where a bond, fide holder is to be affected.
    “We construe the case of Worrell v. Gheen, 8 Wright 388, to mean that when a negotiable note like this has been altered, as proven in this case, and passes into the hands of a boná. fide holder for valuable consideration, he may recover for the amount of the note, discarding that which is proven to be fraudulent. Here there is no question made as to the facts, and no difficulty in distinguishing the true amount of the note from the fraudulent addition. * * * Here the note was partly written and partly printed. In the blank left to fill in the sum after the words one hundred had been written, there was sufficient room left to write any other sum. This blank was not scored by the maker or any other precaution taken to prevent the fraudulent addition to the amount of the note. It was therefore through the fault of the maker that this fraud was perpetrated. Knowing the character of the note, it was as little as the maker could do to see that the blank was scored. We therefore direct judgment for the plaintiff for one hundred and three dollars, being the amount of the note as actually given by the defendant together with the costs of suit.”
    The defendant, took a writ of error and assigned for error, entering judgment on the reserved question.

      A. C. Nutt and D. Kaine, for plaintiff in error.
    Any material alteration of a promissory note avoids it: 1 Greenlf. Ev., § 565; Chitty on Cont. 297; Bank of United States v. Russel, 3 Yeates 391; Stephens v. Graham, 7 S. & R. 508; Simpson v. Stackhouse, 9 Barr 186; Miller v. Gilleland, 7 Harris 124; Struthers v. Kendall, 5 Wright 229; Southwark Bank v. Gross, 11 Casey 80; Hill v. Cooley, 10 Wright 261; Neff v. Horner, 13 P. F. Smith 327.

      C. E. Boyle, for defendant in error.
   The opinion of the court was delivered,

by Thompson, C. J.

There could be no question but that the alteration made in the note in this case would avoid it as between the maker and payee, the consent of the latter to it being wanting, and there being neither an implied nor express authority for making it.

But how is it with the plaintiff, an innocent holder for value in the usual course of business ? There was a blank in.the body of the note (a printed note) between the words “ one hundred” and “ dollars,” when the maker signed and delivered it. 'The payee afterwards filled the blank with the words “ and fifty,” which made the note read “ one hundred and fifty,” instead of “one hundred dollars,” the sum for which it was drawn. In this condition it was taken by the plaintiff without the least grounds existing for any doubt of its entire genuineness. By inspection of the note,” says the learned judge -in his opinion on the reserved question, “ the most skilled expert would have failed to detect any alteration in its make.” There was no difference in the handwriting between the words added and those which preceded them; no difference in the ink, and no crowding of words, to put the most careful man on inquiry, or to raise a suspicion that all was not right. The note thus clear on its face, was taken on the credit of the drawer, and now shall he be discharged from his obligation by reason, or on account, of his own negligence in delivering a note that invited tampering with ? He could have saved all difficulty by scoring the blank with his pen. It would have been impossible almost to have written over this without leaving traces of the alteration. In that case a purchaser of the note would take it at his own risk. This is, therefore, one of the cases in which it is a maxim, “ that where one of two innocent persons must suffer, he shall suffer who by his own acts occasioned'the confidence and the loss:” Story’s Eq., ss. 387. If a bill or check be drawn in so careless a manner as thereby to enable a third person to practise a fraud, the customer and not the banker must bear the loss:” Chitty on Bills, s. 60; Byles on Bills 332; 22 Eng. L. and Eq. 516; 31 Barb. 100; 41 Ib. 465. “ A party who intrusts another with his acceptance in blank is responsible to a bond fide holder, although the blank be filled with a sum exceeding that fixed as a limit by the acceptor. Though the filling of the blank in violation of the agreement of the parties be a forgery, the acceptor is estopped from setting up the fact: 7 Smith (N. Y. Rep.) 531. Denio, J., in delivering the opinion of the Court of Appeals in this case says, among other things, “ that the principle which lies at the foundation of these actions, Í think, is, that the maker who by putting his paper in circulation has invited the public to receive it of any one having it in possession with apparent title, is estopped to urge the actual defect of title against a bond fide holder.”

The doctrine of the point is ably discussed by the learned judge, and the easés touching the subject are noticed and discussed. The doctrine is, however, but an elaboration of a. great principle of justice, that if one by his acts, or silence, or negligence, misleads another, or in'any manner affects a transaction whereby an innocent person suffers a loss, the blameable party must bear it: Story’s Eq. 386-87.

In Young v. Grote, 4 Bing. 253, and also reported in 12 Moore 484, the very case in principle with the one,in hand may be found. It was an alteration by filling spaces or blanks negligently left in a check, and filled by the holder so as to increase the amount and not be detected by inspection of the paper. The bank paid it, and the drawer was held chargeable for the full amount on the ground of his negligence. The same doctrine was held in two Scotch cases, viz.: Ragore v. Wylie, and Graham v. Gillespie, to be found in full in Ross on Bills and Promissory Notes, 104-95. It is true, in 1st Allen (Mass.) 561, the case of Wade v. Whittington seems to limit the doctrine to cases where the alteration is made hy an agent, clerk or confidential party; but this, in my opinion, is against an earlier decision in that state — I refer to Putman v. Sullivan, 4 Mass. 45, in which no such restriction appears. It seems an impracticable limitation.

In Hall v. Puller, 5 B. & C. 750, the case was that of an alteration of a bill perceptible on its face. The bankers paying it were allowed only to charge the drawer with the original amount put in the draft, for it was negligence on their part to pay the face of it in its altered aspect. Such seems to have been the doctrine applied by this court in Worrall v. Gheen, 3 Wright 388; although the case of Hall v. Fuller, asserting the same doctrine, does not seem to have been cordially approved in that opinion.

I regard this case as depending on the principles of the other cases cited above, and not on Worrall v. Gheen. That was a case of a perceptible alteration, and the plaintiff was allowed to recover only to the extent of the original unaltered note (the plaintiff), being entirely innocent of the alteration, or of knowing anything about it. But in the case in hand there was no perceptible alteration on the face of the note whatever. The handwriting was all the same, and no crowding of words to effect the insertion — all was natural and regular in appearance. The words and fifty” were inserted in the space between the words “ one hundred” and the word “ dollars” in the note, by the same hand that filled up the note originally. It had been delivered to plaintiff in this condition. The authorities I have referred to hold the drawer of such a note answerable for the full face of the note as altered, to any bond, fide holder of it for value, on the ground of the negligence of the maker in leaving the blank in the note which was thus filled up after its execution, and so we now hold, notwithstanding, as between the maker and payee or other person making the alteration, it would be a forgery and void.

We think this rule is necessary to facilitate the circulation of commercial paper, and at the same time increase the care of drawers and acceptors of such paper, and also of bankers, brokers and others in taking it. This rule will not apply to cases where the alteration is apparent on the face of the paper. There it is possible the rule in Worrall v. Gheen may apply. The only error, therefore, which we discover in the judgment on the reserved question, was against the defendant'in error. By the rule which I have endeavored to deduce from the cases, he was entitled to judgment for the face of the note and interest. But the defendant in error is not a complainant here, and the plaintiff in error makes no complaint that the judgment against him is too small, and therefore the judgment is affirmed.


text:
    Lawrence County’s Appeal.
    1. Persons having no interest in judicial proceedings will not he heard as parties to impugn them for irregularity. .
    2. Butler and Lawrence counties, under the same Act of Assembly, each subscribed to the stock of a company whose railroad passed through their territory, and on the same terms and about the same time. Held, that there was no implication of a joint liability by the two counties, or of a liability to contribute for eaoh other’s losses.
    3. The bonds issued by the counties in payment for the stoek were prohibited by the act from being sold at less than par; the company increased the stipulated prices for the work of their contractors 36 per cent, and paid in bonds at par. Held, that this was a fraud on the counties, and entitled them to a rescission of the contract for the stock.
    4. The bonds of Lawrence county had been paid out by the company, and she had obtained a decree against the company for their value; a large amount of Butler county’s bonds still being in th'e company’s hands, she obtained a decree to have them restored. Held, that Butler county having a defence to the bonds on the ground of the fraud in the company, the bonds were not assets for the payment of their debts, and Lawrence county, although a creditor of the company, had no standing in the case and could not appeal.
    5. Lawrence county was not a creditor of the company, but a stockholder.
    November 16th and 17th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Butler county: In Equity: No. 118, to October and November Term 1870.

    The North Western Railroad Company was incorporated February 9th 1853 under the General Railroad Law of 1849, to construct a road from the Pennsylvania Railroad west of Johnstown, by way of Butler, to the Ohio state line at some point on the western line of Lawrence county; the capital to be $1,000,000, with right to increase to $2,000,000, in shares of $50 each, with power to borrow money to an amount equal to the capital, with interest at 7 per cent, per annum, to be secured by mortgage of their railroad and franchises. Authority was given also, to the counties through which the road should pass to subscribe to the stock and pay in such manner as the counties and the company should agree upon; but when bonds should be given for county subscriptions they should not be sold by the company at less than par. The company was organized about June 1st 1853, and located their road from the Pennsylvania Railroad near Blairsville through Armstrong, Butler, and Lawrence counties. On the 18th of August 1853, Butler county subscribed for 5000 shares of stock ($250,000), to be paid for in bonds due in 20 years from their date, with interest payable semi-annually; the company to pay the interest until the road should be completed. On the 20th of August, Lawrence county subscribed for 4000 shares of stock ($200,000), payable in all respects as the Butler county subscription ; the company to pay the interest on the bonds in like manner. The City of Philadelphia also subscribed $750,000 to the stock of the company payable by their bonds. Malone & Co. contracted with the company to construct the entire road, five-sixths of their estimates to be payable monthly in the bonds of the two counties and Philadelphia, pro raid of the amount those municipalities were to issue, the remainder in stock of the company; and after those bonds should be exhausted, payable in the bonds of the company; all the bonds to be taken at par and the contract to be forfeited at the option of the company on failure by the contractors to perform. The prices of the work were to be fixed by J. E. Thomson and Herman Houpt, Esqrs. They “ having taken into consideration the terms and modes of payment,” made out a list of prices, which was not satisfactory to the contractors ; the company then raised the prices about 24 per cent, above those arranged by Messrs. Thomson and Houpt.
    The contractors during the ensuing two years did work to the amount of $1,000,000 from Blairsville to Ereeport, $24,000 from Ereeport to Butler, and $56,000 from Butler to New Castle; of this sum about $16,000 were expended in Lawrence county. All the bonds of Lawrence and Butler counties were delivered to the company prior to June 12th 1856. The interest on the bonds being in arrear and there being no provision for its payment, they were unavailable to the contractors. The company, in consequence, on the 6th of August 1856, released the contractors from their contract, except a portion of the work between Blairsville and Ereeport, they to take for what was then and might become due them, the notes and mortgage bonds of the company, and under the agreement they restored to the company $332,500 of the bonds of the two counties which had been received by them. Some work had been done in Butler and Lawrence counties, and about $2000 of Lawrence county bonds had been expended for work done in Butler county.
    On the 2d of April 1857, Butler county filed the original bill in this cause against the company, setting forth her subscription and issuing of $250,000 in bonds; that the,company still held $236,500 of bonds yet undisposed of, were insolvent and unable to comply with their agreement to pay the interest on the bonds, having failed to do so since January 1st 1857, on $13,500 of the bonds disposed of by them, and prayed for an injunction to restrain the company from negotiating any more of the bonds, &c. On the 14th of April, F. W. Higgins, Esq., appeared for the company, and by agreement a preliminary injunction was issued, with leaye for the defendants to move at any time for its dissolution. By proceedings under a mortgage given to secure the company’s bonds, the railroad and its franchises were sold in July 1857, to William L. Hirst, Esq., for the bondholders. On the 18th of November 1858, the county filed an amended bill, averring that the company had wrongfully released Malone’ & Co. from their contract to build the roads, had paid out the bonds at 36 per cent, below their par value, and that since the granting of the injunction the company had, in violation of it, paid out an unknown amount of the bonds. The prayer was that the county’s subscription to the stock might be declared null, and the bonds delivered up to be cancelled. The company answered, January 12th 1859, that at the granting of the injunction they held but $184,500 of the bonds, that they owed more than that amount, that they needed the bonds to pay their debts, and were unable to pay the interest; they admitted that on account of the depreciation of the bonds in the market, they had so increased the prices to Malone & Co. as to reduce $59,000 of the bonds which they had paid out shortly before the injunction to 64 per cent, of the par value, but that the other bonds which they had disposed of had been paid out at their par value, that the bonds were in the custody of the Commercial Bank of Pennsylvania, and that the company did not design to make any use of them till the injunction should be dissolved.
    An act was passed March 22d 1860, creating Mr. Hirst and other bondholders of the North-Western Railroad-Company a corporation by the name of The Western Pennsylvania Railroad Company, with all the rights of the North-Western Railroad Company, and all the acts creating the North-Western Railroad Company were repealed and its charter revoked.
    On the 5th of April 1860, the plaintiff (Butler county) filed a supplemental bill, making the Commercial Bank a party, and setting out the sale of the North-Western Railroad Company to Mr. Hirst, the repeal of its charter and incorporation of the Western Pennsylvania Railroad Company, and averred that by reason of these things the title of the North-Western Railroad Company to the bonds was destroyed, and that the plaintiff had a right to have them restored and cancelled ; the prayer was that this might be done. On the 4th of June 1860, another supplemental bill was filed against the Western Pennsylvania Railroad Company, alleging that that company claimed these bonds as purchasers of the North-Western Railroad Company. The Western Pennsylvania Company answered, claiming the ownership of the bonds by virtue of the purchase of Mr. Hirst.
    On the 29th of September 1866, Lawrence county filed a petition in this cause, which set forth that the petitioner, June 9th 1857, filed in the Supreme Court a bill against the North-Western Railroad Company, which was so proceeded in that at the October Term 1858, it was decreed that her subscription to stock in the company was annulled, without prejudice to the rights of other parties, &c., that the company return $2000 of bonds still held by them, and restore the remaining $198,000 of bonds, or pay that sum. to the petitioner, &c. The petition set forth the appointment by the Supreme Court, February 7th 1866, of A. L. Crawford as receiver of the company, and that June 23d it was ordered that the bonds of Butler county, in possession of the Commercial Bank, should be treated as if in his hands, and that on the same day Butler county obtained a rule to show cause why she should not be allowed to take the bonds out of the receiver’s hands, returnable to the Western District at October Term 1866; the prayer of the petition was that Lawrence county might be made a party to the bill, that the injunctions be dissolved, and the bills dismissed, and for further relief.
    Butler county answered the petition, objecting to Lawrence county becoming a party, averring that the North-Western Railroad Company still held the bonds.
    The Court of Common Pleas of Butler county, in October 1866, allowed Lawrence county to become a party defendant, but refused to dissolve the injunctions and dismiss the bills.
    James Yeach, Esq., was appointed master. ’
    After fully finding the facts, including those above stated, he reported that amongst other reasons, Lawrence county resisted the surrender of the Butler county-bonds to that county, because Lawrence county is a creditor of the North-Western Railroad Company, that the Butler county-bonds are assets of the company, and must be held for the payment of the company’s debts.
    The master reported that whether Lawrence county was or not a creditor of the North-Western Railroad Company, was of no importance, as Butler county had an available defence against their payment. He recommended that a decree be made dismissing the petition of Lawrence county; that the bonds be delivered to the county of Butler, and that they be adjudged null and void.
    After exceptions, the Court of Common Pleas of Butler county confirmed the report of the master, and made a decree according to his recommendation.

      February 9th 1871,
    Lawrence county appealed to the Supreme Court, and in a number of specifications assigned the decree for error.

      R. B. McComb, for appellant.

      J. M. Thompson and C. McCandless, for appellee.
   The opinion of the court was delivered,

by Thompson, C. J.

All inquiry into the regularity of the proceedings of the court below, until we shall have ascertained whether the appellant, the county of Lawrence, has such a status in the case as entitles her to move in the matter of the bill, original or as amended, seems out of place. All the other parties embraced by the decree have acquiesced in it, and it is conclusive as to them. If Lawrence county has no equity in the bill, she has no right to question the regularity of proceedings which alone concern other parties; and which if regular, they could have taken advantage of. It is a rule without exception, I believe, that persons having no interest in judicial proceedings, will not be heard as parties to impugn them for irregularity merely, and this must be the condition of this appellant, unless it be made to appear to the judicial mind, in some way, that she was entitled to consideration in the decree made. Now how is this ?

We have no doubt whatever that the Court of Common Pleas of Butler county, had jurisdiction of the subject-matter of the bill, and jurisdiction of the parties by service and voluntary appearance.

I need not trace the history of the Northwestern Railroad Company to -its culmination in ruin and insolvency, the source of manifold embarrassments, troubles and losses to sundry individuals, and more than one of the counties of this Commonwealth. This history, so far as it may be necessary to illustrate anything that may be here said, will be the duty of another, if it be thought proper to report the result of our action in. the case.

It will therefore suffice to say, that the counties of Butler and Lawrence, each became subscribers to the stock of the defendant company, under the authority of an Act of Assembly of the 9th February 1858, the former to the extent of $250,000, and the latter to $200,000; both on the same terms and conditions as to the time, mode and manner of payment, the payments of interest and restrictions on the sale of the’ bonds.

Each contracted for the payment of her stock subscription in county bonds, to become due in twenty years from date, with interest payable semi-annually, which the railroad company contracted to. pay, with the further stipulation, that the bonds should not be sold by the company at a less rate than par. These stipulations the municipal subscribers were fully authorized to make, by the act authorizing the subscriptions.

The finding of the master shows that the subscriptions of these counties were separately and independently made, without any arrangement between them in regard thereto. Indeed nothing else was ever pretended. Surely the law will not imply any joint liability, from the mere circumstance that these counties subscribed to the same stock, under the same law, and on the same terms. Any liability of the one to contribute to the losses which might be sustained by the other, does not rest in an implication of a contract ; there is no ground for such, nor upon any express arrangement, for none is pretended. Besides, there was no authority to make any such, by anybody.

Each county therefore having subscribed, issued bonds and paid its subscriptions by bonds, on the terms referred to above; and the railroad company let the whole of its road to a company of contractors, who agreed to take their bonds, with others, in payment for work to be done. The contractors not being able to negotiate them on the terms agreed upon, to wit, at par, an arrangement was made between the company and its contractors to evade this stipulation, by adding a percentage to the contract price of the work, which should in effect reduce the bonds to about sixty-four cents in the dollar. That is to say, in place of doing one hundred dollars worth of work for a hundred dollars in bonds as agreed, only $64 worth of work would be done. This was a palpable .fraud on the counties, and for this precisely, this court declared that the contract of subscription was avoided, in the case of Lawrence County v. The North Western Railroad Company, 8 Casey 144, which case had been preceded by Crawford County v. The Pittsburg and Erie Railroad Company, 8 Casey 141, and Mercer County v. Same, 3 Casey 389, holding that a municipal subscription could be avoided, and was entitled to be rescinded, on account of the fraud of the corporation, and the contracts of subscription declared void, and the bonds ordered to be returned.

The interest not having been paid on the bonds of Butler county, the contractors could not negotiate them, even at this margin of practical reduction, and returned most of those received to the railroad company, in order to enter into different arrangements for raising money. Whilst in this situation, Butler county filed her original bill, praying for an injunction to restrain the re-issue of them, on the ground of the failure of the company to pay interest. A preliminary injunction which covered $184,000 of, the bonds returned, was granted, $59,000 of them having been passed away by the company before the service of the injunction. Afterwards the plaintiff amended her bill, charging the company with a violation of one of the fundamental conditions of the subscription, namely, that none of the bonds should be disposed of at a less rate than par. At the time of the return of the Butler county bonds, somp $98,000 of Lawrence county bonds were also returned to the company; but, less fortunate than her neighbor, although she filed a similar bill to restrain the reissue of her bonds, she failed by reason of strenuous opposition and delay, not useful to recite, until in 1859, she got an injunction as prayed. The court granted a perpetual injunction to restrain their re-issue, and rescinded the subscription and ordered those issued to be returned, and their amount in cash to be paid by the company to the county. All the bonds saving only $2000, had disappeared from the treasury of the company by this time. The company some short time after this failed, was utterly insolvent, and it is needless to say the decree has never been complied with. On the 22d March 1860 its charter was repealed, and a new charter granted to another company, the Western Pennsylvania Railroad Company.

Now Lawrence county claims a right to intervene to prevent a final decree in favor of Butler county, that her subscription be declared void by reason of the facts set forth in the bill, viz., nonpayment of interest, and contracting and endeavoring to negotiate her bonds at a less rate than par, and because of the actual negotiation of most of them at such less rate. Upon what solid ground can she be successful in this ? If I understand it aright, she claims as creditor of the company; and that as to creditors, the plaintiff cannot have a rescission of her contract of subscription and her bonds returned, until she contributes to the amount actually out of pocket by Lawrence county. The postulate for this claim is, that her bonds have gone to pay debts due by the company, therefore she has right to equitable .substitution in the place of creditors, to whose debts her means have gone to pay. But she was. not a lender to the company of a dollar, and this is the only relation which could with any plausibility be urged as a ground for a substitution as against the company, and through it to its uncollected assets. Lawrence was not a creditor to the company, but a part of it. Her bargain was to pay her subscription, and look for reimbursement through the company by means of the profits it might realize. If a failure to complete such an enterprise should take place, and a sale of its property and assets follow, a> stockholder could not be regarded as a creditor entitled to a distribution of proceeds. Creditors, that is the lenders of money, contractors and the like, must be first paid, not the company or any of its members as such. That one stockholder should be the debtor of another by virtue of his stock subscription-, is an unheard-of thing. Through the company all stock subscriptions may be collected, and it may be compelled to collect all of them to carry on the enterprise or pay its debts, but not for distribution to stockholders.

It is so manifest, that each takes the risk of gaining or losing to the extent of the stock subscribed, and is not to be reimbursed from the stock of another or others, that words cannot illustrate it. This is something approaching so nearly a self-evident proposition that it is hardly possible to aid the statement by argument. This being so, Lawrence county has no authority at law or in equity to proceed against a stockholder to reimburse herself for loss by virtue of her subscription. There is no privity in law between them, and none by contract has been, shown. If she could have compelled the company to proceed to collect the stock, it would only have been, as I have said above, to carry on the work or pay debts, and then for that purpose only could it have collected subscriptions that were valid, consequently it would have been met, by way of defence, so far as Butler county is concerned, with the very matter she now claims as a ground for a rescission of her subscription, viz., fraud of the company upon her, and which we held in Lawrence County v. N. W. Railroad Co. was a good ground for rescission, and is á fortiori a good ground of defence. The other cases already cited, show that by the fraud of the company a stock subscription will be rescinded. But Lawrence county has not even the corporation to resort to, to compel delinquent subscribers to pay. Its charter and authority were entirely repealed by the Act of 22d March 1860, and before Lawrence county moved in the matter in this case, and a new company — the Western Pennsylvania — was incorporated in its stead, but without any authority over its stock subscriptions.

This is a hard case on Lawrence county, but she is in the category of thousands of others who have lost by misplaced confidence in untried schemes. This hardship merely will not give form, shape and force to her subscription — which did not inhere in it when it was made. As it has not been found that she was induced to subscribe to the stock of this unfortunate railroad company by any act or contract of Butler county, and as the law implies no equivalent, she is without remedy — in the manner attempted against Butler county — and has no equity to interfere in the manner attempted here to prevent her from redressing her wrongs.

It was claimed, in the able and earnest argument of the counsel for the appellant, that the case In re Cook v. Youghal Railway Co., 4 Ch. Ap. Cas. 748, was an authority to support their position. We have looked at the case with care, but we regard it as belonging to an entirely different kind of case from that presented here. In that case, the company became embarrassed and had no authority to raise any more money on mortgage than had been raised under the act of incorporation. Its financial agent, David Leopold Lewis, advanced large sums of money to carry on the enterprise, but himself becoming embarrassed, procured'the company to issue a large amount of bonds, called “Lloyd’s Bonds,” and on these he raised a very considerable amount of money, ■which was disbursed in payment of debts of the company; but, with all this assistance, the company went into the hands of a general liquidator. The company, with its property and assets, •were sold, and the proceeds came into the liquidator’s hands. The bondholders, Mr. Lewis among them, claimed as creditors for a pro raid on their bonds; this was refused by the liquidator on the ground that the bonds issued were not authorized by Act of Parliament. This was certainly true. The company was prohibited issuing them. The holders of them claimed to stand in the ■ shoes of the creditors of the company, whose debts their money had paid, and this ground was sustained by Lord- Chancellor Hatherley, and Lord Justice Gifford, who heard the appeal from the decree of Vice-Chancellor Malins. This was a case of lenders of money to a corporation, which the legal representatives of that corporation wished to pocket for the benefit of the corporation, because of the irregularity of the loan merely. In order to effectuate justice, therefore, equity subrogated the lenders to the rights of the creditors, whose debts had been paid, and refused the claim of the stockholders to any money until the bondholders were satisfied. This was manifestly just, and operated nowhere unjustly. But the case gives no countenance to the idea attempted to be derived from it. It does not at all establish the idea that one stockholder who has lost more than another, can turn upon him and compel him to contribute to his losses as a creditor, more especially when the company could not compel him to pay anything. I cannot see, in anything that has been, written or said, why Lawrence county has any superior equity to escape from loss by this company than Butler has. If Butler county had beguiled her into the loss, or promised to share it, or even had given countenance to the doings of the company by management of its affairs, as if all were right in her own case, there might have been more plausibility in the ground assumed by the appellant; but nothing of the kind appears in the case. We think she is not entitled to interpose here in any manner whatever. The case of Henderson v. The Royal British Bank, 7 E. & B. 90, Com. Law Rep. 355, was also somewhat relied on as authority for the ground assumed by the appellant’s counsel. That was a case under the English “Joint Stock Winding-up Act” of 1848, and supplement of 1849. It is so manifest that this proceeding was under the provisions of a special act relating to joint stock companies in England, that I have not thought it necessary to examine it. But there is a feature of liability under the supposed parallel to this case, which this case is entirely clear of, and which defeats its applicability, even in appearance, to this case. There,' a stockholder endeavored to withdraw his name from the register of stockholders and escape liability for stock, on the ground of imposition and fraud on him in making the subscription. But this was met by the fact, that after full knowledge of the fraud by the subscriber, he acted as if his stock were free from all taint whatever, voted his shares at elections and received dividends on them, like other shareholders, and it was only when the winding up of the concern took place, he endeavored to escape liability upon his stock, and sought a withdrawal from the register. It was on this ground that his application was refused. But Butler county has not been visited with any such equitable estoppel — this we have shown already — and she is not within the principle of this case, even if the Winding-up Act of 11 & 12 Viet, and supplements, eliminated any general principles applicable to corporations generally.

The result of all this is, that the appeal of Lawrence county is dismissed at her costs, and the decree of the court below is affirmed.