author: IClNG, President. —

text:
    Collom v. Francis.
    "Where the object of a hill for discovery is to supply the party ashing the discovery, with the materials for future contemplated litigation, it must clearly appear on the face of the hill, that the plaintiff has a title to the discovery he seeks, or in other words, an interest in the subject-matter, to which the discovery is attached, proper to he vindicated in some judicial tribunal.
    Such title so to be shown, must be present and vested. Where the plaintiff in his bill shows only the probability of a future title, or interest, upon an event which may never happen, he has no right to institute any suit concerning it, either for discovery or for relief.
    The allegations and charges of such a bill should be precise and specific, for without such allegations and charges, there can be no test by which the right to discovery can be tried.
    Unless the facts set forth in the bill, admitting their truth, will enable the plaintiff to maintain an action, he has no title to the assistance of a Court of Equity. The want of such right may be objected to by demurrer. Such a bill must, at least, be certain to a common intent. It must not be vague, nor uncertain.
    Where the bill avers that an action is brought, or where such is the necessary effect in law, from the facts stated in the bill, it appears the plaintiff has the right to bring an action; he has a right to discovery in aid of the action alleged to be brought, or one which he appears to have the right to bring. But no one can file a bill, not venturing to state who are the persons against whom the action is to be brought; nor not stating such circumstances as may enable the Court to judge of the liability of the parties.
    If a bill does not aver some judicial proceeding pending, for which the discovery is sought, or that such is contemplated, it will not be entertained.
    This was a bill in equity, filed by John Collom against Griffith Francis, of Abington, in the county of Montgomery, in which it was stated that the complainant was born the 11th day of July, 1776, at Abington, then in the county of Philadelphia, but now forming part of the county of Montgomery, at the place now occupied by the respondent; and that the ancestors of the complainant were among the earliest settlers in Pennsylvania, and were possessed of large sections or parcels of land situate in what is now Philadelphia, Bucks, and Montgomery counties. That the complainant believed, that at various times from the year 1700 until his birth, parts of said land were granted by the owner thereof, ancestors of the complainant, to various persons on long leases of ninety-nine years, or thereabouts. That the complainant, when a child, some time about the year 1782, was residing as he had from his birth, in Abington, at the place now occupied by the respondent, which place was then owned by William Francis, the father of the respondent, and brother of the complainant’s mother, and at which place also resided the mother of the respondent’s father, William Francis, Jesse Collom, the father of the complainant, and his mother, Jane Collom, and a young sister of the complainant’s mother, named Nancy Francis.
    The hill then averred that the said Nancy, being about fourteen years of age, and the complainant about six years of age, they •were left alone in the house one day to keep house until the old people should come home ; that the said Nancy Francis then took out of an old desk which was in said house, a number of papers and parchments, and spreading them on the table before the complainant, said, “ These papers will make you rich when you become an old manshe then folded all the papers up and replaced them in the desk; said papers were, a large parchment with a large seal, and several small papers and parchments, and one of these papers, the complainant averred, he was informed and believes it to be true, was a will. That he repeatedly saw those papers afterwards, but they were never unfolded; that they always remained in the same desk, and were last seen by him when he was about eighteen years of age; and that the said Nancy Francis died at the age of seventeen years.
    It was then stated that about the year 1189, the complainant, being about twelve years of age, was driving his grandmother, the mother of the said William Francis, and grandmother of the respondent, to Philadelphia, in company with the complainant’s mother, and while driving along the Old York road, towards the city, at some place, the complainant at this distance of time could not recollect, his grandmother stretched out her right hand, and speaking to the complainant, said, “ John, here is a farm for you ; it was willed to you; it is on a long lease of ninety-nine years ; and when you come to the age of ,” which age he could not remember; then turning to the complainant’s mother, said, “John looks like a healthy boy; he may live to that age;” then again speaking to the complainant, said, “Remember, you must apply for it;” and again pointing her hand, said, “Here is more land for you.”
    It was then stated that in the year 1796 the complainant went to the western country, where he had resided to the present time. That the house remained in the possession and ownership of his uncle, William Francis ; that about the year 1833, when the complainant being of the opinion that the time was about to expire when he was to apply for whatever he supposed was his, and that he could get by applying, he wrote to his uncle, William Francis, for information respecting said matters, and also what was contained in said papers; but receiving no answer, he visited him in 1835, and asked him if he had ascertained what those old papers contained; and his answer was that he had taken them to Joshua Tyson and had them examined, and declined to let the complainant see them, but said, “I have all the paper that ever was, but you shall never see them while I live; for if you were to see them I could not go to Heaven.”
    It was then stated that about two years ago said William Francis died, leaving the respondent, his son, in the possession of said house, and as the complainant believed, the said papers. And that William Francis had, during his lifetimé, acknowledged that he had in his possession papers in which the respondent was interested, and that Griffith was his executor, and took by devise the house at Abington, and as executor and devisee came into the possession of all said papers which were in the house of his father during his lifetime. It was stated that the complainant had applied to the respondent for an opportunity to examine said papers, but he denied having them, and professed ignorance of the existan ce of such.
    It was then averred by the complainant, that he believed all of said papers were in the possession and under the control of the respondent, and that among them there was an ancient will, or the memorandum of a will, or some other ancient writing, by which there is bequeathed to him the reversion of one or more of those long leases of ninety-nine years; by means of which writing or writings the complainant would be able to establish his right to some valuable property in Philadelphia or Montgomery counties, and that he has no means of knowing anything of the right he may have, other than what said papers may disclose; and unless permitted to examine them or have copies thereof, he will be deprived of the only means of establishing the right he may have in the premises; and by the refusal of the respondent to examine them he was deprived of the means of prosecuting his claim.
    The bill then prayed that the respondent might be compelled to answer certain interrogatories that were propounded; and that he make a full and true discovery and disclosure of all- and singular the matters and things before stated, in order that the complainant might use them in an action at law or in equity, which on such discovery he might see proper to institute; and that said papers and parchments, of a date anterior to the year 1783, in the possession or under the control of the respondent, he might be decreed to bring into Court, or deposit where the Court should direct, with liberty for the complainant to examine the same, &e., &c.
    To this bill there was a demurrer.

      The cause was argued by Mr. Tener for the plaintiff, and Mr. Tox for the defendant.
   The opinion of the Court was delivered by

IClNG, President. —

This is certainly a most extraordinary proceeding. The plaintiff seems to think that he has some sort of title to lands situate in what was, before the American Revolution, part of the county of Philadelphia. And that the title papers thereto are in the hands of the defendant, as heir and executor of his father, William Francis, deceased. The object of the bill is to compel the defendant to bring into Court all papers and parchments in his possession, bearing date anterior to the year 1783, in which the plaintiff may have an apparent interest, for the plaintiff’s inspection, that thereby he may obtain the necessary evidence to enable him to prosecute his claim to said lands, if any he has. The defendant has demurred to. the bill.

The first ground of demurrer assigned arises from the proviso to the 13th section of the Act of 1836, giving this Court jurisdiction in equity, which declares that no process to be issued by this Court or the Supreme Court, under the chancery powers therein specially granted, excepting such as have hereinbefore been exercised, shall at any time be executed beyond the limits of the city and county of Philadelphia. The return to the subpoena shows it to have been served by the sheriff of this county, and the presumption is that the writ was executed by him within his bailiwick. Indeed it is not denied, but admitted, to have been so served. The argument against our jurisdiction is derived from the circumstance that the defendant is described in the bill as of Abing-ton, Montgomery county, it being supposed that our jurisdiction in equity extends only over the actual and permanent inhabitants of this county. The real object of this proviso was to exclude the idea, that in giving original jurisdiction in equity to the Supreme Court and this Court, in this county, it' was in the contemplation of the legislature to make such jurisdiction co-extensive with the Commonwealth. The interdiction of the law is against issuing process to be executed out of the county, which means original process for the commencement of a suit. Where the defendant is, however, found within the county, the jurisdiction of the Court, which, in the administration of equity, acts always on the person, arises. If the legislature had intended that our jurisdiction in equity should be confined to the resident inhabitancy of this county, and to exclude all persons from its operation who were not permanently domiciled here, it would have been easy to say so; and such an important qualification of jurisdiction would not have been left to be inferred from words which, in their natural and legal signification, convey no such idea. Such a construction of the words of the law would deprive this Court, sitting as it does in a great commercial city, of much of its usefulness; and we should be disinclined to adopt it, unless under the pressure of the words of the law, or from necessary and inevitable inference therefrom.

There is no part of the jurisdiction of a Court of Equity more conducive of justice, more important in maintaining right and in suppressing wrong, than is found in the power of compelling the discovery of facts, resting on the knowledge of one party, which are necessary in order to establish the right of the party demanding such discovery. But it is a jurisdiction fraught with .danger to the rights and interests of those against whom its force is directed, unless the most anxious caution is employed by the functionaries exercising it, against its abuse. Hence, especially in cases like the present, where the object of the proceeding is to supply the party asking the discovery with the materials for future contemplated litigation, it must clearly appear on the face of the bill that the plaintiff has a title to the discovery he seeks, or, in other words, that he has interest in the subject-matter to which the discovery is attached, capable and proper to be vindicated in some judicial tribunal: 1 Story’s Eq. 706. The title so to be shown must be present and vested; for where the plaintiff in his bill shows only the probability of a future title or interest, upon an event which may never happen, he has no right to institute any suit concerning it, either for discovery or for relief: Mitford’s Eq. by Jeremy, 156-7. The allegations and charges of such a bill should be precise and specific; for without such allegations and charges there can be no test by which the right to discovery can be tried. When so stated, the Court has the means given it of judging whether the facts alleged are such as will support an action; for unless the facts as set forth in his bill, admitting their truth, will enable the plaintiff to maintain an action, he has no title to the assistance of a Court of Equity to obtain from the defendant evidence of the truth of the case. If he shows no right of action in any Court, he can have no title to discovery in a Court of Equity; and the want of such right may be objected to by demurrer: Digby v. Lord Howe, cited in Rondeau v. Wyatt, 3 Bro. C. C. 154; Wallis v. The Duke of Portland, 3 Vesey, Jr. 494; Lord Kensington v. Mansell, 13 Vesey, 240; Coke v. Bishop, 8 Viner’s Abridgment, 537, placitum 5. Sucb a bill must at least be certain to a common intent. The case intended to be made by it must neither be vague nor uncertain, ,nor must the allegations be so vague as to draw with them the consequences and mischiefs of uncertainty in pleading. In both cases the plaintiff’s right of discovery will be affected by the uncertainty of the pleadings: Wigram on Discovery, 126-7.

The present very much resembles the case of Ryves v. Ryves, 8 Vesey, Jr. 343. There a bill sought a discovery and delivery up of deeds to the plaintiff, and alleged that at the time of the marriage of his father and mother, his mother was seised and possessed or entitled to divers freehold, leasehold, and copyhold estates as one of the co-heiresses of her father, or under his marriage settlement, or his will, or codicil, or by some such or other means; and that upon the marriage of the plaintiff’s father and mother, or before, or at some time after the said marriage, some settlement or settlements was or were executed, whereby all or some parts of the said estates were conveyed upon certain trusts and purposes, in such a manner, as that estates for life were given to his father and mother, or one of them, or at least an estate for life to his father, with a provision by way of jointure or otherwise to his mother, who died in the lifetime of his father, remainder to the first son of his father and mother, or to their first and other sons successively, or in some manner so that the plaintiff upon the death of his father and mother, or the death of his father, became seised or entitled to all or most of the estates, &c., either in fee or absolutely, or as tenant, or in tail, in possession, or in some other manner, as would appear by the deeds, &c., in the defendant’s possession ;— upon demurrer, the bill was held bad for vagueness and uncertainty ; and that the defendants could not plead to it, but must discover all deeds relating to their estates. In The Mayor and Commonalty and Citizens of London v. Levy, 8 Vesey, 398, Lord Eldon allowed a general demurrer, put in to a bill of discovery in aid of an action at law. In his judgment he observes, in reference to the subject under consideration, That where the bill avers that an action is brought, or where the necessary effect in law of the case stated by the bill appears to be, that the plaintiff has the right to bring an action, he has a right to discovery to aid that action so alleged to be brought, or which he appears to have a right and intention to bring, cannot be disputed. But it has never yet been, nor can it be laid down, that you can file a bill not venturing to state who are the persons against whom the action is to be brought; not stating such circumstances as may enable the Court, which must he taken to know the law, and therefore the liabilities of the defendant, to judge; but stating circumstances, and averring that you have a right of action against the defendants, or some of them.

No man was better aware than Lord Eldon of the dangerous consequences of giving countenance to these fishing hills; for, a short time before he ruled London v. Levy, he had observed, in the case of Cooke v. St. Bartholomew’s Hospital, that “the Newcastle case was a good lesson upon this subject of production. They produced their charters to satisfy curiosity: some persons got hold of them, and the consequence was the corporation lost £7000 a year:” 8 Vesey, 138.

The bill seems even liable to other objections. It does not distinctly aver that the discovery is sought in aid of' some judicial proceeding commenced or contemplated, though it hints at such an intention, should the investigation sought for prove propitious. Such an averment is indispensable ; for, as was said by the Vice-Chancellor, in Cardale v. Watkins, 5 Madd. Rep. 10, “a Court of Equity does not compel discovery for the mere gratification of curiosity, but in aid of some proceeding, either pending or intended, and that there must be allegations to that effect.”

Again, it is not directly asserted that Griffith Francis is in possession, or that he claims title to any of the lands to which the plaintiff supposes himself to be entitled. In that event, Francis is but a witness; and it is well settled that a party who may be examined as a witness, cannot in general be compelled to answer a bill for a mere discovery: Plummer v. May, 1 Vesey, Sr. 426; Dinely v. Dinely, 2 Atkyns, 394; Story’s Commentaries on Equity Pleading, § 234.

We are therefore of the opinion, that the demurrer to this bill is well taken, the case intended to be made by the bill and its allegations and charges being vague, imprecise, and uncertain.

The demurrer is allowed, with costs.


source: Caselaw Access Project

author: King, President. —

license: Public Domain

text:
    Bank of Virginia v. Adams.
    To induce a Court of Equity to refuse its aid to a suitor, it is not sufficient that he may have some remedy at law.
    An existing remedy at law, to^ induce equity to decline the exercise of its jurisdiction in favour of a suitor, must be an adequate and complete one. where, from the nature and complications of a given case, its justice can best be reached by the means generally employed by a Court of Equity, this tribunal will take cognisance of the suit.
    And the general rule is, that where a full, perfect, and complete remedy cannot be afforded at law, equity extends its jurisdiction in the furtherance of justice.
    In the case of a corporation located within the state, and having the capital stock subscribed to by stockholders applicable to the objects of the association, a Court exercising equity jurisdiction can compel the stockholders to pay their just creditors, when the debt is established, in proportion to the amount of stock subscribed by them respectively, and remaining unpaid.
    This power will be exercised when the directors of the corporation neglect and refuse to call in the unpaid instalments, and to apply it to the debts of the corporation.
    A bill may be supported against individual corporators, on a contract with the company for the discovery and application of the funds of the corporation in their hands.
    The capital stock of an incorporated company, remaining unpaid by its stockholders, is a trust fund, applicable to the payment of its debts. It is such a trust as can and will be executed by a Court of Equity.
    A Court of Chancery acts primarily and properly on the person, and at most collaterally on the thing. If the person be within the jurisdiction of the Court, it will generally be exercised, although the subject of controversy be without. But this general rule has its exceptions.
    To induce a Court of Chancery to interfere in causes of action arising in a foreign jurisdiction, it must be complete to administer the appropriate equity required by the case, and capable of giving effect to its decree.
    Against a foreign corporation, a Court of Equity in Pennsylvania can exercise no jurisdiction to compel stockholders residing here to pay the stock subscribed to such corporation, on the application of a creditor of such company.
    A corporation has no legal existence out of the boundaries of the sovereignty by which it was created. The official functions of the agents and officers of such a corporation do not follow them, so as to authorize the service of process upon the corporation.
    A Court of Equity has no jurisdiction, because a foreign corporation is insolvent, or its officers neglect or refuse to perform their duty, to compel them to execute their functions. The remedy is in.the sovereignty where the corporation was created, and not in another country.
    This was a bill in equity, filed by the “Bank of Virginia” against Thomas Adams and thirty-three others, naming them, in which it was stated that the plaintiffs sued in behalf of themselves and all other creditors of the “Rappahannock Mining Company,” who should come in and contribute to the expense of the suit; that by an act of the legislature of Yirginia, passed on the 6th of January, 1834, entitled, “An Act to incorporate the Rappahannock Mining Company,” which* was set out verbatim in the bill, certain persons therein named were incorporated under the name of the “Rappahannock Mining Company,” and were authorized and empowered, for the purpose of mining, to raise and contribute among themselves and such other persons as should thereafter become associated with them, a capital sum of not less than $100,000, nor more than $500,000, to be divided into shares of $100 each. That after the passing of said Act, Thomas Adams and thirty-three other persons named in the bill as defendants, all of the city and county of Philadelphia, became associated for the purpose of mining, with the persons in the said Act named, and subscribed for the capital stock of said company, and became stockholders therein, and promised to pay to the said company $100 for every share of stock so subscribed for by them; and severally subscribed for the number of shares stated in the bill, and respectively promised to pay the sums of money specifically stated in the same. That said persons, with divers others as yet unknown to the plaintiffs, subscribed and promised to pay the sum of $133,300 to the capital stock of said company.
    It was also averred that said company, being duly organized, commenced and prosecuted their mining operations. That to raise funds for the purpose of mining, said company became indebted to the plaintiffs in the sum of $3000, by a bill of exchange drawn by the superintendent and agent, endorsed by the assistant superintendent, and accepted by the treasurer of said company, at Philadelphia, for and on behalf of the said company, which bill of exchange was duly protested for non-payment, and, with interest thereon, yet remains wholly due and unpaid to the plaintiffs. That the capital stock of said company was established and designed, held forth, and represented to be a fund for the payment of the debts of said company ; and the plaintiffs gave credit to said company on the faith of the capital stock being and remaining a fund liable for and adequate to the payment of said bill of exchange. That the plaintiffs are advised that the capital stock of said company was and is a fund appropriated by the act of incorporation, and by law, to the payment of the just debts and liabilities of the company; and that the said Adams and the other subscribers in the bill named, in subscribing for the number of shares and sums of money therein mentioned, became severally liable to pay the several amounts in discharge of the debts of the company, and are bound in justice or equity for so much as remains unpaid of the sums subscribed as ■ aforesaid. Yet, that the said subscribers, though thus bound, have not fulfilled their several undertakings, and have only paid a small portion, to wit, forty per cent, upon each share of the capital stock of said 'company subscribed for by them, and the remainder thereof now remains due and unpaid; and the President and Directors of said company, though authorized by the act of incorporation aforesaid to call in and enforce the payment of unpaid capital, or so much thereof as may be required for the payment of the debts of said company, yet refuse to enforce the payment of the said unpaid capital, according to the provisions of the act of incorporation; by means whereof the Rappahannock Mining Company are without any funds for the payment of their just debts to the plaintiffs and others.
    It was further stated in the bill that the president and treasurer, and the directors of said company, reside in the city of Philadelphia, out of the limits of the commonwealth of Virginia; and that there is no person within the said commonwealth, upon whom legal process against said company can be legally served; and that the plaintiffs were thereby wholly prevented from recovering a judgment at law against the company. That the plaintiffs are advised that the sums of money remaining unpaid on the several shares of stock are, in justice and equity, now a fund in trust in the hands of the subscribers for the payment of the just debts of the company. That the said subscribers being so in possession of said funds in trust as aforesaid, the plaintiffs requested them to pay and satisfy their demand. But that the said subscribers, combining and confederating with one another, and with divers others at present unknown to the plaintiffs, whose names, when discovered, it was prayed might be inserted to charge them as parties, refused to comply with said request. Interrogatories were then propounded, and the bill prayed that accounts might be taken, under the direction of the Court, of what is due to the plaintiffs for principal and interest on their demand, and of the sums remaining due and unpaid on the shares of the capital stock of said company subscribed for by the defendants. That the demand of plaintiffs might be decreed to be paid out of the sums so remaining due and unpaid as aforesaid; and a prayer for general relief.
    The defendants, most of them, demurred to the bill, and assigned as causes of demurrer;
    1. That there is no equity in the bill.
    2. That the Rappahanock Mining Company is a necessary party.

      3. That there are other necessary parties who are alleged to have subscribed to the capital stock of said company, and that the plaintiffs do not ask that they may charge them, when discovered, with apt words, as parties to the bill.
    4. That the Court has not jurisdiction of the case.
    In support of the plaintiffs’ case, a printed argument was submitted by B. O. L. Moncure, Esq., of Virginia, with whom was J. Randall, Esq. And to sustain the demurrer, a printed argument was submitted by O. Fallon and (?. M. Dallas, Esqs.
    It was said by the plaintiffs’ counsel that two leading propositions were submitted for the consideration of the Court: 1st, Whether the plaintiffs are entitled to the equitable relief which they claim against the defendants ? and if so, 2dly, Whether such relief can be administered by this Court ?
    In support of the first proposition, it was contended that upon general principles, as well as according to the legislative intention, the capital stock of incorporated companies is deemed a trust fund for the payment of the debts of the corporation so that the creditors have a lien on, or right of priority of payment out of such capital stock, in preference to any of the stockholders in the corporation : from which it would follow, that if the capital stock should be divided, leaving any debts unpaid, every stockholder receiving his share of the capital stock, would in equity be liable, pro rata, to contribute to the discharge of such debts out of the funds in his own hands.
    That if the directors of the corporation, in violation of their duty, fail to make calls upon the stockholders, or to enforce them when made, and the corporation is without funds for the payment of its debts, a Court of Equity will compel the directors to perform their duty, or afford relief to the creditors by a decree against the stockholders. And lastly, that this is a remedy which can be obtained in equity only.
    It was said these are plain principles of law, as well as common sense, and were fully sustained by Wood v. Dumme, 3 Mason, 308, 2 Story’s Eq. § 1252, and by this writer laid down as elementary principles.
    The following authorities were also relied upon: Vasev. Grand, 15 Mass. 505 ; Spear v. Grant, 16 Mass. 9 ; Slee v. Brown, 19 Johns. 456; Salmon v. The Ilamborough Company, 1 Cases in Ch. 204; 1 Kyd. on Corp. 273; Briggs v. Penniman, 8 Con. 387; Hume
      v. Winyaw & Wando Canal Co., 5 American Law Magazine, p. 92. In tbis case no specific fund was set apart, or provided as corporate capital, either in the charter or the organization of the corpo-rators ; and as the means of supplying it, the company entered into a resolution that it should be raised by assessment on the individual members, in proportion to the number of shares owned by each. The company imposed an assessment on its members ; but some of them neglected or refused to pay the assessment, and the company neglected to enforce such payment. The corporation being without funds, the plaintiff, a creditor, exhibited his bill in equity against the delinquent members ; all but one admitted the debt, and expressed a willingness to pay their respective proportions ; one demurred; and on the argument of the demurrer, the broad ground was taken, that the individual members of a corporation are never liable for acts or debts of the corporation, unless the act creating it makes them so. But Chancellor Dessaussure overruled the demurrer, and gave relief against the individual members ; and his decree was affirmed by the Court of Appeals of South Carolina. Another authority was cited to this point, Ward v. The Griswoldville Man. Co. 16 Conn. Heps. 593. These cases, say the learned counsel, conclusively show that the plaintiffs are entitled to the equitable relief which they claim.
    The present case is much stronger for the plaintiffs than most of those cited; whether we look to the general principles of equity, or the particular circumstances of each case.
    The case of Riddle v. Manderville, 5 Cranch, 322, is an illustration of the principle: 2 Story, § 1250; Harman v. Tappenden, 1 East, 555.
    To sustain the second proposition, whether such relief can be administered by this Court, it was contended that this Court has at least as much jurisdiction to grant the relief prayed for, as if it were sitting in Virginia, or the company were incorporated by the legislature of Pennsylvania; in either of which cases the relief would be granted. The grounds on which the relief is claimed, are, that the corporation is indebted to the plaintiffs, has no funds to pay its debts, and is not in a condition to be sued; and the defendants subscribed for stock, and engaged to pay the amount of their subscriptions, but have not done so; that the corporation has power under the charter, and is in duty bound, to call in the capital, and pay its debts, but has neglected and refused to do so ; and that the capital is a trust fund, devoted by law and the charter to the payment of the debts of the corporation, which were created on the credit of such capital; and that the plaintiffs are without remedy if they cannot follow this trust fund into the hands of the defendants, and subject it to the payment of their debts.
    To sustain this position was cited Henry v. Richards, 1 Mason, 281; Desesbats v. Berquier, 1 Binn. 387; Greer v. O’Daniel, lb. 349, note; Tunstall v. Pallard, 11 Leigh, 1.
    A Court of Equity, as has been often said, git in ‘personam. If the person be within the jurisdiction of the Court, such jurisdiction will be exercised, even though the subject in controversy be without, provided the Court can give its decrees : 2 Story’s Eq. §§ 899, 960; 2 Sory, §§ 1184, 1186, 1290.
    And even though the subject affected be land; unless, indeed, the relief which is asked is of such a nature that the Court is incapable of administering it: 2 Story’s Eq. § 1292; 2 Com. Dig. Chan. 3 X.; 4 Watts, 27 ; 1 Yern. 75; Arglasse v. Muschamp, lb. 419; 1 Yesey, Sr. 444 ; Penn v. Lord Baltimore, 1 Hen. & Munf. 2; 2 Des. 583; Massie v. Watts, 6 Cranch, 160; 16 John. 6; 16 Pick. 286; 13 Peters, 520.
    Eor the defendants it was contended that the bill does not allege that the company are insolvent or without funds to pay their debts, nor are they made parties to the bill. That there were three causes for demurrer: 1st, want of equity; 2d, a want of parties; 3d, a want of jurisdiction in the Court
    As to the want of equity: it has been argued for the plaintiffs that the capital stock of incorporated companies is a trust fund for the payment of the debts of the corporation, and may be followed by the creditors into the hands of the subscribers. But, assuming for the present the correctness of this position, the plaintiffs cannot take advantage of it in the present case. If unpaid instalments constitute a trust fund, then the company, or the directors in whom the management of the company is vested, are the trustees for the collection and distribution of it; and before a creditor can reach it, he must show neglect on the part of the trustee and insolvency of the corporation; that neither insolvency of the corporation is averred in the bill, nor is default of the directors sufficiently set forth. To sustain this view, Wood v. Dumme, 2 Pick. 292, was relied upon. It was then concluded that plaintiffs’ bill showed no equity, by not showing that the company is insolvent — in not showing that the directors are in default, or that the company is dissolved.
    In not showing that the capital had been actually paid in and thus a trust created; and in not showing that the plaintiff is a creditor of the corporation ; and for this ground the bill ought to be dismissed.
    2d. That the want of parties was fatal.
    That all parties interested must he made parties to a bill, is a principle too familiar to cite .authorities to support; and it is equally clear, that all who may be affected, or who are necessarily affected by the decree, are interested, and must be made parties to the bill. That if these principles were applied to this case, the demurrer must be sustained. The plaintiffs’ bill is predicated on the existence of a debt due to them by the corporation, and before a final decree can be made, the Court must decide whether such debt is really due.
    There may be defences to the suit which none but the corporation know of, or can take. It would be an anomaly for a Court to determine that a debt is due by a party not before them, or without giving that party an opportunity to 'defend. The Court cannot decree this application of the property of the company to the discharge of a claim, the liability for which is neither admitted by the debtor, nor determined by the decree of the Court.
    It was necessary to make the corporation a party to the'bill, in order that the Court might have those who could legally sue before them.
    It was also further contended, in support of the last ground of demurrer, that the Court had no jurisdiction in the case, because all the necessary parties have not in fact appeared to the action^ and the Court has not the power to oblige them to appear. We have shown that the corporation is a necessary party.
    A foreign corporation cannot be sued in this state : 1 Miles, 78 ; Dawson v. Campbell, 2 Miles, 170, 8 Law Journal, 58. A corporation created in Pennsylvania, is not suable out of the county where it has its principal office: 5 W. & S. 879. Therefore, a corporation chartered in Virginia, is not suable in any county in this state: 1 Amer. Law Magazine of January 1845, page 373, 96, 101.
   The following opinion was delivered by

King, President. —

In considering this case, we will first 'regard it as if the bill had been filed by the creditors of a Pennsylvania corporation, containing all formal requisites, and 'having for its object the compelling the stockholders thereof to pay certain unsatisfied instalments of the capital stock unpaid by them, in order to raise the necessary means for the liquidation of corporation debts. Which instalments of capital stock had not been paid into the corporation treasury, in consequence of tbe neglect or refusal of the directors of the company to make the necessary demand on the stockholders, and to enforce thé same according to the provisions of the charter.

In such a state of things, would a Court of Equity entertain a bill filed by a creditor on behalf of himself and others, who might afterwards become parties thereto against such defaulting stockholders, in order to coerce the proportionate payment of such unpaid instalments, to be applied by the Court to the satisfaction of the creditors of the corporation according to the exigencies of their respective equities ?

That creditors so circumstanced are not absolutely without a remedy at law, seems probable. Because, under such a state of things, a Court of law perhaps might afford some relief by mandamus, directed to the proper corporate officers, commanding them to do that which their duty and the requisitions of their charter required: to wit, to call in the unpaid instalments due by stockholders: The Queen v. The Victoria Park Company, 1 Ad. & Ell. N. S. 288; 41 Eng. Com. Law Rep. 544.

But to induce equity to refuse its aid to a suitor, it is not sufficient that he may have some remedy at law. An existing remedy at law, to induce equity to decline the exercise of its jurisdiction in favour of a suitor, must be an adequate and complete one. And where, from the nature and complications of a given case, its justice can best be reached by means of the flexible machinery of a Court of Equity, in short, where a full, perfect, and complete remedy cannot be afforded at law, equity extends its jurisdiction in furtherance of justice.

Of the superiority of the remedy in equity in cases like the present, through which payment of the fund applicable to the satisfaction of creditors may be required from the stockholders and distributed among all the former, according to the particular equities of each, it is submitted that no doubt can be entertained; even considering the question merely with regard to general con-, venience and practical usefulness. In point of authority, also, the doctrine is well sustained, that a bill may be supported against individual corporators, on a contract with the company, for the discovery and application of the funds of the corporation in their hands to the satisfaction of the contract. The question has arisen in Courts of Equity in tAvo classes of cases. The one in which no defined capital was required by the charter; the other, where the charter provided for raising by subscription a certain amount of corporation capital. The earliest case of the first class is that of Dr. Salmon v. The Hamburg Company, Chancery Cases, 206, 7, (23 Char. 2); Viner’s Abridgment, vol. 6, p. 310-11. In this case the bill charged, that the company were incorporated by letters patent, and had power to make by-laws and to assess rates upon cloths (which was the commodity they dealt in), and by poll on every member, to defray the necessary charge of the company; that the company had imposed rates accordingly, namely 4s. Qd. upon every white cloth exported, and divers others, and thereby raised ¿£8000 per annum towards the support of the common charge of the company; that they had thereby got great credit, and borrowed great sums of money by their common seal, and that particularly the plaintiff lent £2000 upon that security. That the company having no common stock, the plaintiff had no remedy at law for his debt; that their usage had been to impose taxes, and levy actions upon the members and their goods, to bear the charge and to pay the debts of their company; and that they afterwards refused to execute that power. The bill further complained against divers of the members by name, that they had refused to meet and levy taxes, pretending want of power to do so; whereas they had formerly exercised the power, and thereby gained credit, whereupon the plaintiff had lent them £2000, which was for the use and support of the company, and so ought to be made good by them; and he prayed to be relieved. The defendants demurred, and the Lord Chancellor dismissed the bill. But on an appeal to the Lords, his decree was reversed, and it was adjudged that the Chancery should issue its process to compel an answer, or to take the bill pro confesso; and should proceed to examine what the complainant’s just debt was, and should decree the said company to pay what was justly due; and upon non-payment by the corporation, then the Lord Chancellor should order and decree, that the Governor and assistants of the company should proceed to make such assessment (or leviation as it was called) on every member of the company, who was to be contributor, as should be sufficient to satisfy the sum decreed to be due, and to collect and levy the same, and pay it over to the plaintiff; and on failure of such assessment, then and from thenceforth every person -of the said company should be made liable to pay his proportion; and that such process should issue against such member refusing or delaying to pay his proportion, as is usual against persons charged by decree of the Court, for any duty in their several capacities. The company and divers particular members thereof by name, in their natural capacities, were the defendants.

The doctrine of this case was applied by Chancellor Dessaussure, in 1828, in Hume v. The Winyaw and Wando Canal Company, and his decree was afterwards affirmed by the Court of Appeals of South Carolina, in 1828: American Law Journal for October 1844, p. 94. The Winyaw and Wando Canal Company was incorporated by the legislature of South Carolina, for the purpose of constructing a canal. No specific fund was set apart or provided for as a corporate capital, either in the charter or organization of the corporators; and as the means of supplying it, the company entered into a resolution that it should be raised by assessments, to be made on the individual members, in proportion to the number of shares owned by each, according to the contracts and exigencies of the work. The company imposed an assessment on its members, which it was supposed would cover the extent of their liabilities; but some of the members refused or neglected to pay the assessment, and the company neglected to enforce such payment. The corporation being without funds, the plaintiff brought his bill against certain members of the company, to compel the payment of a balance due him on a contract entered into by the company with him for work done under the contract. To this bill the plaintiffs demurred. This demurrer was overruled by Chancellor Dessaussure, after a learned and elaborate judgment, and a decree was entered, directing a Master to examine and report when the contract was made between the company and the plaintiff, and how much was justly due to him thereon; and that the company should lay before the Master a statement of their joint stock applicable to pay the said debt, and take measures to make the same productive, by sale or otherwise; and that on failure thereof, in whole or in part, each individual member be held liable to pay his quota or proportion of the deficiency; and that on any one failing to pay his proportion, the process of the Court should issue to enforce the payment thereof, unless the money should be raised within six months after the decree, by assessments made and collected by the company or its members.

In observing on the propriety of the exercise of equity jurisdie- ■ tion in this case, Mr. Justice Johnson, who delivered the opinion of the Court of Appeals, remarks that there is no common-law process of which I am aware, by which the complainant could compel the corporation to enforce this demand against Mr. Matthews (that is, for the amount of assessments which had been made on him as a member of the corporation), or to compel the company to appropriate it, if raised, to the satisfaction of the complainant’s demand. As a corporation, no' proceeding at common law can operate upon them in personam, and they have no common property upon which the process of the Law Courts can act; and without the aid of the extraordinary power of a Court of Chancery, the complainant would be without a remedy.”

The case of Ward v. The Griswoldville Manufacturing Company, 16 Connecticut Reports, 593, was that of a corporation, in which the charter thereof provided for the creation of a capital stock, by subscription to shares in the ordinary manner.

The bill was filed by Ward and others on behalf of themselves, and on behalf of such other creditors of the Griswoldville Manufacturing Company as might elect to become parties to the bill, against Thomas Griswold and others, stockholders of the corporation, praying the Court to order and decree that the defendants pay into the hands of a receiver, an instalment of sixty per cent, upon their stock, or so much thereof as would be sufficient to pay the debts of the plaintiffs, and such other creditors as might elect to come in under the decree, to be applied by such receiver to the discharge of the same; or, that the Court would require the directors of said corporation to call in such instalment and apply the same to discharge such debts. The bill stated the incorporation of the company with a capital of $50,000, divisible into shares of $100 each; the authority of the directors to call in the subscriptions by instal-ments at their discretion; the fact that the company was duly organized and had commenced business, buying, manufacturing, and selling goods, &c.; that the corporation being indebted to the plaintiffs, they had commenced suits and obtained judgments against it, on which judgments executions had issued, and had been returned nulla bona. The bill then proceeded to name the president, directors, agent, and stockholders of the company, with the number of shares held by each, and averred that only forty per cent, of the capital stock had been paid into the corporation on each share, there being still due from each shareholder sixty per cent, on each share; that if said sixty per cent, were called and paid in, the said corporation would be able to discharge all its present indebtedness; but that the directors had neglected and refused theretofore so to do.

This bill was demurred to for want of equity, and because the plaintiffs had a remedy at law. The demurrer was, however, overruled ; the Supreme Court of Connecticut holding that the amount of the shares subscribed for, and not merely the amount actually paid in, constituted tbe capital stock of tbe company; that tbe unpaid balances of tbe shares were as much subject to tbe call of the directors as any debts due the company; that the directors were bound to make such call to tbe extent of tbe whole subscription of each stockholder, in order to satisfy the creditors of tbe corporation, if such whole subscription should be required for that purpose; that their negle.ct and refusal so to do, gave jurisdiction, under the circumstances disclosed in the bill, to equity, to grant the plaintiff relief; and that although the officers might at law be compelled to call in the unpaid subcriptions, yet that it was in the power of a Court of Chancery to do more ample and complete justice to the parties interested, than could possibly be done in a Court of law, and in- all respects to afford the more appropriate remedy.

The doctrine of this case had been intimated previously in the cases of Vose v. Grant, 15 Mass. 505, and Spear v. Grant, 16 Mass. 9, in which the Supreme Court of Massachusetts, while it refused aid to the plaintiffs at common law, pointed out in whát manner, and on what principle relief might be obtained in equity. The subsequent case of Wood and others v. Dummer and others, 3 Moran’s Reports, 308, was a bill on the equity side of the Circuit Court of Massachusetts, filed by the plaintiffs as holders of the bank-notes of' the Hallowell and Augusta Bank, against the defendants or stockholders, for the payment of the notes, upon the ground of an asserted fraudulent division of the capital stock of the bank by the stockholders. There was not the slightest proof of fraud, and the plaintiffs rested their case at the hearing, on the ground that the capital stock was a trust fund for the payment of the debts of the bank; and it was held “ that the capital stock tvcts a trust fund for the payment of the bank-notes, and might be followed into the hands of the stockholders; and that a bill in equity for such purpose might be maintained by some of the holders of the ba,nk-notes, against some of the stockholders; the impossibility of bringing all before the Court being deemed sufficient to dispense with the ordinary rule, making all parties in interest parties to the suit.

The principle upon which both these classes of cases rest, is well expounded in the opinion of Judge Story, in this last case. “It appears,” says he, “to me very clear upon general principles, as well as legislative intention, that the capital stock of banks is to be -deemed a pledge, a trust fund, for the payment of the debts contracted by the bank. The public, as well as the legislature, have always supposed this to be a fund appropriated for such purpose. The individual stockholders are not liable for the debts of the bank in their private capacities. The charter relieves them from personal responsibility, and substitutes the capital stock in its stead. Credit is universally given to this fund by the people, as the only means of repayment. Why otherwise is any capital stock required by our charters? If the stock may, the next day after it is paid in, be withdrawn by the stockholders without payment of the debts of the corporation, why is its amount so studiously provided for, and its payment by the stockholders so diligently required ? To me it appears so plain, upon principles of law as well as common sense, that I cannot be brought into any doubt, that the charters of our banks make the capital stock a trust fund for the payment of all the debts of the corporation. The stockholders have no rights until the other creditors are satisfied.

“ If I am right in this position, the principal difficulty in the case is overcome. If the capital stock is a trust fund, then it may be followed by the creditors into the hands of any person having notice of the trust attaching to it. As to stockholders, there can be no pretence to say that both in law and fact, they are not affected with the most ample notice of it.”

On principle and authority, therefore, it seems alike clear, that in the case of a Pennsylvania corporation, located within our jurisdiction, and having a capital stock subscribed to by stockholders, applicable to the objects of the associated enterprise, we possess the jurisdiction to compel such stockholders to pay the just creditors of the corporation, duly established to be such, in proportion to the amount of stock subscribed to by them, respectively, and remaining unpaid; where the directors of such corporation neglect and refuse to call in such unpaid capital, and apply it to the payment of corporation debts, such a jurisdiction is essentially conservative of the rights of the public, which gives credit to the corporation on the faith of their ostensible capital, and to which such capital is pledged. Any doctrine short of this would leave the general public subject to he prayed upon by reckless speculators, who will he always found ready to enter into any enterprise in which the prospect of profit seems great, and the certainties of hazard little.

Hut can we properly entertain such a hill filed hy creditors of a foreign corporation against a stockholder thereof, who has not paid up all his subscription to the capital stock of such corporation, and who may be found within our jurisdiction ? It is on this branch of the case that the doubts of the Court have arisen. We do not question but that the Bank of Virginia is as competent to maintain an action in the Courts of Pennsylvania as any citizen of or corporation created by the state of Pennsylvania. The cases of the Bank of Augusta v. Earl, 13 Peters, 520, and the judgment of this Court, confirmed by the Supreme Court, in The Kentucky Bank v. The Schuylkill Bank, ante, 226, settles that question beyond dispute. Nor is this case that of a creditor of the Rappahannock Mining Company, seeking to recover a debt due him by an attachment laid against a stockholder of the company, who has not paid up all the instalments on the stock held by him, treating such unpaid instalments as a debt due the company and attachable as such by a creditor thereof.

The grounds on which the compainants’ case rests, is, that the capital stock of this company, unpaid by its stockholders, is a trust fund applicable to the payment of its debts; and that it is such a trust as can and will be executed by the Courts of any civilized forum in which the stockholder is found. Part of this proposition has already been shown to be true; to wit, that unpaid instalments of the capital stock of such a corporation as this, are, so to say, trust funds primarily pledged to the payment of corporation creditors. It is the extent to which the second branch of the proposition is sought to be carried in this case, that produces the difference between the Court and the learned advocates of the complainants.

Undoubtedly, a Court of Chancery acts primarily and properly on the person, and at most, collaterally only on the thing. If the person be within the jurisdiction of the Court, such jurisdiction will in general be exercised, although the subject of controversy be without. But that this rule, general as it is, has its exceptions, is shown by the case of Morris v. Remington, ante, page 389, where the subject is much discussed. To induce the Court to interfere in causes of action arising in a foreign jurisdiction, it must he competent to administer the appropriate equity required by the case, and capable of giving effect to its decree.

What equity has deemed the appropriate remedy in cases analogous to the present, is found in the authorities relied upon by the complainant; and that remedy is manifestly one which can only be administered by the Courts of the country in which the corporation exists, by which it has been created, and to whose laws only it is amenable. Thus in the case of Salmon v. The Hamburg Company, the decree was, first, that the company should pay the plaintiff’s debt; second, upon non-payment thereof, that the Chancellor should order the corporation officers to make such assessment on the members thereof as should be sufficient to pay the sum due; and, third, that on failure of such assessment, process should issue, to make every member of the company contribute his quota to the payment of the plaintiff’s debt. In Hume v. The Winyaw & Wando Canal Company, the decree was that that company exhibit to the Master a statement of their joint stock applicable to pay the debt, and within six months make sale thereof for that purpose ; on failure thereof, that each individual member should be held liable to pay his quota of the deficiency, and on the failure of any member to pay such proportion, process to issue against him to enforce the payment thereof; unless within six months after the decree the money was raised by assessments made and collected by the company on its members.

In Ward v. The Griswoldville Manufacturing Company, the decree asked was in the alternative, either that the defendants should pay their unpaid instalments to a receiver, to be applied by him to the payment of the corporation debts, or that the Court would require the directors to call in such instalments, and apply the same to discharge the debts. Now there are decrees suited to reach the real justice of all such cases. Because the obligation of the stockholders to respond to the debts of the corporation, in proportion to the extent of their unpaid instalments, is but a pledge or guarantee to the public dealing with such corporation, for the faithful performance of its obligations; and like all other guarantors, the stockholders have the right to require that the first action of the Court should be directed against those primarily liable, viz. the corporation. Such decrees as those made in the eases cited could be made by us against a Pennsylvania corporation, within our jurisdiction, in an appropriate case, and could be enforced when made. But as against a foreign corporation, we can exercise no such jurisdiction. It has no legal existence out of the boundaries of the sovereignty by which it was created: Augusta v. Earle, 15 Peters, 588. It must live, and has its being there only. The circumstance that one or more of its stockholders are residents of another sovereignty, makes no difference in this respect. If its official agents should even be found within a different sovereignty, by accident or otherwise, their official functions would not follow them, so as to authorize the service of process against the corporation upon them: M’Quin v. The Middletown Manufacturing Company, 16 Johns. 6; Peckham v. The North Parish in Haverhill, 16 Pick. 286. There is therefore no means in our power to get such a foreign corporation into our county; none which could enable ns to enforce our decrees. The proceedings in .the cases relied upon were in fact as much against the corporation as the stockholders; and in that which manifestly formed the precedent followed in the others, we mean Salmon v. The Hamburg Company, the stockholders were only held liable after all remedies against the corporation were exhausted.

No trace is found of any case in which a jurisdiction identical with that invoked here, has ever been exercised by a Court of Equity; that is the case of proceedings against individual stockholders of a foreign corporation, because of the insolvency or refusal to execute its corporate duties by such corporation in the sovereignty of its creation. The inconvenience and difficulties which would arise from the exercise of such a jurisdiction are manifest. These, it is admitted, would form no just objection against the exercise of a clear jurisdiction; but they form strong reasons against the assumption of a doubtful one. Such a procedure against stockholders is founded on the theory that the proper corporate authorities have neglected or refused to perform their corporate duties, which require them to collect all unpaid instalments of the capital stock, and to apply them to the satisfaction of corporate obligations. The fact of such neglect or refusal is the predicate on which equity intervenes to make those liable immediately who are liable ultimately for the payment of the debts of the corporation. If, however, issue should be taken on the fact of such neglect or refusal, this draws with it the inquiry whether the foreign corporation has done that which its charter requires; in fine, whether the corporation has or has not been in default in its administration of corporate duties. The assumption of such a jurisdiction might draw into our Courts like inquiries, not merely affecting corporations created by our sister sovereignties, but foreign corporations, properly so called, in which a citizen, a resident, or a person temporarily in the state might be interested as a stockholder. For, the jurisdiction once admitted with reference to stockholders of corporations created by the respective states, the principle on which it rests must embrace cases of corporations, wherever existing, or by whomever created. The simple statement of such a proposition seems to us to carry with it its own condemnation. If stockholders in one state could be so proceeded against, so might they in every state of the Union of whose jurisprudence English equity formed a part. Such proceedings might even be simultaneous, and certainly could not fail to present strange conflicts of decision.

The learned counsel for the complainant have pressed upon us the exercise of tbis jurisdiction, on the ground that the complainant can nowhere else obtain relief. Because they say, that inasmuch as none of the corporate officers are residents of Yirginia, process cannot by the laws of that state be served on them, so as to place the winding up of the affairs of this corporation where it properly belongs — in the hands of a Yirginia Court of Chancery. But admit the fact, it establishes nothing except that further legislation is required in that state to provide a manner of service of process in equity against corporate officers, who, by keeping out of that commonwealth, prevent their doings being submitted to the censure of her Courts.

If a Yirginia Court of Equity could possess itself of the case of the Rappahannock Mining Company, and appoint a receiver to collect its assets, whether due by debtors or stockholders, with authority to use the name of the company, such an officer could undoubtedly sue all defaulting stockholders resident in this state, and recover unpaid instalments of stock in the same manner that the company could have done itself. In this way, the remaining assets of the company could be obtained, and be appropriated according to the laws of the state by which the Rappahannock Mining Company was chartered.

In the judgment of the Court, the defendant’s demurrer must be sustained, and the plaintiffs’

Bill dismissed, but without costs.


author: By the Court.

text:
      Court of Common Pleas, Dauphin County,

      September 9th, 1851.
    Hummel v. Singer.
    An agreement to pay ground-rent comes within the rule of court requiring an affidavit of defence. But it is necessary for the plaintiff to file the agreements through which he claims, or if the contract is by parol to make sufficient averments.
   By the Court.

There is no doubt that an action of debt or covenant, founded on ground-rent due, comes within the fifty-second rule of court, requiring the defendant to make an affidavit of defence. It is an instrument of writing for the payment of money.” This subject was carefully considered in Hummel v. Nelson, 1 Miles, 340; Watkins v. Phillips, 2 Wh. 209. The only doubt arises from that provision in the rule requiring the plaintiff to file a copy of ■ the instrument of writing, record, or claim on which the writ is founded. Here the original ground-rent deed is filed, which is certainly the same to all legal intents as a copy, and even more beneficial to the defendant; but, unfortunately for her case, that is a deed or writing between other parties. The various acts of Assembly and rules of court on this subject evidently contemplate, for the most part, a direct contract between the parties to the action. Yet, where there exists that kind of privity which arises between assignor and assignee, devisor and devisee, or the transferee of a tenant of devised premises with a covenant express or implied to pay the rent, I have no doubt that judgment may be taken if an affidavit of defence is not filed. Yet in all these cases the plaintiff must file copies of the assignments or papers through which he claims, or when the writings are of record in the proper county, they must be accurately described and referred to. This was decided in Hummel v. Nelson, before cited. In the present case, the plaintiff was bound to file a.copy of the will of Frederick Hummel, deceased. Also of the article of partition between Frederick Hummel, one of his devisees, and Daniel Hummel, and the will of Daniel Hummel, under which she claims; or, if all o'f these papers are on record in this county, they must be referred to by date and the page of the book on which they aré recorded. A question of greater difficulty is presented. Is the plaintiff bound to file copies of the deeds or writings through which the defendant is supposed to claim ? To so determine seems like a denial of the benefit of the rule to her. Yet that is the principle of Hummel v. Nelson. Where the obligation is not signed by the person to be charged, .the privity or foundation of the contract must be shown. Here it is said that the defendant holds the estate through assignment or transfer of the original tenant. To enable the plaintiff to recover, she must show on the trial privity of contract or estate between the original tenant and Singer, the defendant. It would not be sufficient for her 'to show the original lease and her rights under it, and that the defendant is in possession. She must show how he came into possession, and trace it to the tenant under the lease. If bound to prove it on the trial, why not call on her in advance to file the evidence or copies of the writings ? I can see no legal ground to exonerate her. Therefore I am of opinion, that -to entitle her to judgment for want of an affidavit of defence, copies of the papers, so far as they exist, must be filed, tracing the covenants or obligations from the defendant to the plaintiff, and when the links are not in writing the facts must be averred. For want of this we must refuse the application for judgment.

Fisher, for plaintiff.

McCormick amid Eaton, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      December 9th, 1853.
    Hoffman et al. v. Walborn.
    Where an issue is directed by the court, it is improper to take out a rule of reference under the compulsory arbitration law. An award of arbitrators, under the compulsory arbitration law, which determines the facts and leaves the law to the court, is irregular and will be set aside.
   By the Court.

It admits of great doubt whether this case was the subject of a reference under the compulsory arbitration law, as the Court of Common Pleas may direct an issue to determine any disputed facts if necessary. This very clearly imports that before any steps are taken after entering the appeal, the court shall determine what shall or must be decided, and direct the form of issue to determine the disputed facts, of course reserving to itself the determination of the issues of law. Here, before any action on the part of the court, the appellant took out a rule of reference, and submitted the whole question of law and fact to an arbitration. It is certain that the legislature, when it enacted a law some years afterwards, permitting the issues of fact, when so ordered by the court, to be referred to arbitrators, must have considered that they were not previously the subject of reference. At this time it is unnecessary, whether the general power to compel an arbitration exists in such a case, as the award is itself void. The arbitrators, instead of deciding the law and facts as required by the act of Assembly, have determined the facts and submitted the questions of law to the court, which, according to reported adjudications, is irregular and improper. The legislature has authorized such a report to be made by agreement in a voluntary reference, but never intrusted that power to one by compulsion, such as this was. The award must be set aside.

Fox and Herr, for plaintiff.

Kunkel, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      April 7th, 1853.
    Shell, to use of Hochlander, v. Hummel and Geiger.
    Tlie sale of the property on an execution issued by plaintiff in replevin, does not prevent the defendant from recovering the value of the goods on the • replevin bond- The defendant has an interest in the property replevied -which is subject to legal sale. The plaintiff is entitled to a credit on account of the sum realized by the sale of the article replevied.
   By the Court.

The special verdict rendered by the jury in this case raises three questions. 1st. Did the sale of the boat by the sheriff, on th.efi.fa. issued by Hummel against Hochlander, so far satisfy the replevin bond as to preclude the defendant in replevin from now recovering the value of the boat on the bond ? 2d. Had Hochlander such an interest in the property before the execution of the writ of retorno habendo as was subject to levy and sale? 3d. Is Hummel entitled to any credit in this suit on account of the sum realized from the sale of the boat ? The authorities are abundant, that so soon as Hummel took the boat into' his possession on the replevin, it was subject to levy and sale as his property. 1 Brown’s Chancery R. 427; 2 Dallas, 68; Idem, 131. The replevin bond was substituted for the goods. Hoch-' lander was not bound to look farther after the property, but could resort to the bond to recover his damages, costs, and the value of the boat on the determination of the suit. Gibbs v. Bartlett, 2 W. & S. 29; Balsly v. Hoffmann, 1 Harris, 603. The title was not vested in him until a writ of retorno habendo was executed. Whilst he need not issue, in order to give him a right to recover on the bond, which was forfeited and subject to an action on the failure to prosecute the replevin suit Avith effect. 5 Barn. & Cress. 284; 2 W. & S. 29. In the latter case, Judge Bogers says : It is doubtful Avhether a writ of retorno habendo was ever issued in this State.” It is very clear, from the most abundant authority, that it is unnecessary. The Supreme Court of Massachusetts fully recognizes the doctrine that the property does not vest in the defendant in replevin by the judgment in Iris favor, but he may pursue and retake it by Avrit, or sue the bond at his option. Parker v. Simonds, 8 Met. 205. I am of opinion that, until the Avrit of retorno habendo Avas executed, Hochlander had no interest in the boat which was subject to levy by any one, and least of all by Hummel, who had averred of record that the property belonged to himself, had taken it into his possession, and substituted his bond with security in his stead. Therefore the sale on the Ji. fa. did not satisfy the replevin bond. Hochlander was not bound to look to the property or accept it if tendered to him, as it might have greatly deteriorated in value by the time of trial, or even rendered wholly worthless. This is the doctrine of Gibbs v. Bartlett, which is recognized and approved in several later cases. Although this sale Avas irregular, yet Hochlander has had the advantage of it by obtaining a credit on the judgment which he owed Hummel to the amount which the properly brought on the ft. fa. It is therefore the subject of a fair equitable defence to that extent. The boat sold for $49. $26.05 Avas applied to the debt, and $22.95 to the costs; of the latter $7.75 were the costs of sale, which were improperly incurred, without legal sanction, and must be disallowed. The other costs were those of the original action, and stand on the same footing with the debt. The amount to be deducted from the credit is $41.25. I am aware that in many cases the principle has been recognized that a party cannot raise an equity by an illegal sale; yet our course is sanctioned by the case of Dunham v. Kinnear, 1 Watts, 130; particularly by what is said by Kennedy, J., page 134. In many of its features that case very closely resembles the present. There is another ground on which the present credit ought to be sustained. If the boat had been returned to the defendant in replevin, but in a deteriorated state, he could have still looked to his replevin bond as an indemnity for the difference between the value at the time of trial and the return. The sheriff’s sale shoAvs that this property was worth only $49 after the former trial, and the verdict fixes its value at $150 at the time of trial. It may be presumed that the balance was the difference in value from decay and ill use. I had some doubt as to the effect of the writ of retorno habendo, but have come to the conclusion that it does not stand in the way of plaintiff’s recovery. It is true that by issuing it the plaintiff has elected to take the property instead of relying on the replevin bond, but, as nothing was or could be done by the sheriff under that writ, it is merely void, and can have no effect. There was no necessity to issue it. Prior to that time the defendant in this case had levied on the boat in his own possession and sold it. The illegal act was consummated, and no attempted election on the part of Hochlander could change it. The motion for a new trial is overruled. There was conflicting evidence as to the value of the boat. The plaintiff in replevin had fixed it at $230, which is prima fade evidence of the value at the time, as has been repeatedly decided. Judgment is entered on the special verdict in favor of the plaintiff for $108.75, being the amount due after making the deductions as before stated; also for costs of suit.

Boas, for plaintiff.

Fleming, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      December 31st. 1853.
    Nisley v. Kinter.
    When a principal instructed his special agent either to have a horse, which he was about to purchase, inspected by a particular person, or obtain a warranty, and failed to do either, the principal is not bound to keep the animal if he is unsound.
   By the Court.

We are still of opinion, as stated on the trial, that if the plaintiff’s agent was instructed to have the horse inspected by a particular person, or obtain a warranty, and failed to do either, the plaintiff was not bound by the contract. It must be conceded, that the man employed was only a special agent, having no general authority, express or implied. The vendor, before dealing with him, was bound to inquire into the extent of his agency. Even if the agent supposed he had a warranty, yet had not, there is an equal failure to obey instructions, as there is not a contract for soundness of which the purchaser could avail himself. It matters not, whether the agent omitted to obtain the warranty through negligence or ignorance, it would be equally fatal to a claim on the part of his principal. There was no evidence in the case that the principal retained the horse in his possession an hour after he first saw him. The witness does not state that the plaintiff was at home, or saw the horse on Friday evening, when he took him to the bam. The first evidence we have of his seeing him, was when he called in the horse-doctor to inspect him. The doctor pronounced him sick from staggers, a dangerous disease. That same afternoon the agent started to return him, but from the feebleness of the animal, or the intervention of Sunday, he was not taken back until Monday morning. The plaintiff was not permitted to prove on the trial the cause of his refusal to keep the horse; therefore, we cannot tell whether it was from a failure to obtain a warranty or a supposed violation of its conditions. If there was no warranty the plaintiff had a right to return the property, because purchased contrary to his instructions; if one existed, we think there was sufficient evidence of sickness to justify sending him back, and offering to rescind the contract before bringing suit. All the plaintiff's witnesses prove that before the horse had travelled three miles he showed evidences of extreme sickness, which continued until his return. In our opinion Nisley was justifiable, from the appearance and actions of the animal and the opinion of the farrier, in sending him back. In fact, the brother of the defendant, one of his principal witnesses, testified that the horse looked extremely ill on his return. The bare fact that the animal had been healthy before, and became so some two months afterwards, is but very slight evidence to contradict the fact that he was sick when sold and returned. It is very true that the plaintiff's counsel did assume on the trial, that there had been a warranty of soundness and a breach of that warranty. But, in our opinion, he failed in the proofs. Had he succeeded it would have been fatal to the case. It is equally certain that the defendant's counsel most strenuously denied the existence of a warranty, which, if conceded by him, would have precluded a recovery; but neither the court nor the jury are bound by these assumptions on either side.

Ifimkel, for plaintiff.

Carson, for defendant.

We are of opinion that this case was correctly decided: therefore we cannot grant a new trial.

Affirmed by the Supreme Court, June 7th, 1855. Not reported.


text:
      Court of Common Pleas, Dauphin County,

      December 15th, 1851.
    Nisley v. The Harrisburg, Portsmouth, Mount Joy and Lancaster Railroad.
    A contractor or laborer has no power to bind a railroad company for materials furnished for the construction of the road. A railroad company, having only a right of way over land, has no right to take stone, or other materials upon the line of its track, to aid in the construction of the road.
   By the Court.

Several of the exceptions in this case, if supported by evidence, would be fatal to the verdict of the inquest. If the jury refused to hear evidence, that the stone used in the work of the company was obtained from the petitioner by contract on the part of Leader, who did the work, they fell into gross error, fatal to their verdict. It was most essential testimony. If a contract was made for the sale of the stone to Leader, the company is not liable. No evidence is adduced to establish the exception : so far as Leader speaks on the subject in his deposition, he contradicts it. The company is not liable in any case for materials used, except 'when taken under the direction of the president, some of the managers, or other known officers or agents; among whom should be classed engineers employed by it, having charge of the construction of the work. The law creating this corporation never conferred on a mere contractor or laborer the power to enter on the property of citizens residing along the line of the road, and take their materials. The person so entering would be a trespasser. Nor did it subject the company to a claim for damages on account of a trespass not authorized by it, though the act of its officers or admitted agents. If a bargain was made to sell the stone to the contractor, Mr. Nisley should pursue him, and not the company. The exceptor is equally at fault in regard to the third and fourth exceptions. They would both be good, if true; but there is no proof on the subject. The fifth exception has not one word of proof to sustain it. No one proves what was allowed or disallowed by the jury, or on what evidence their verdict was founded. We are by no means prepared to say, that the jury could not allow the owner compensation for the materials taken from the bed of the road, provided, on the whole, he was injured thereby. Unless the company purchased and own the land over which the road was laid, they do not own the materials excavated from its bed. It has an undoubted right, under its charter, to level and fill up the track of the road, so as to give it the proper grade; but when materials are excavated, they belong to the owner of the land. The company has only the right of way. It can take the necessary timber, stones, gravel, etc., either on or off the track of the road, by paying for it. The question does not fairly arise here, as it is to be presumed, until the contrary is proved, that the jury had sufficient evidence before it, that the petitioner’s materials were taken under the order of the company, and acted on that evidence. So far as Leader states anything, it is that he took the stone from certain points of hills to straighten tire road, by order of the engineer. Whether on or off the track he does not know; it does not appear that even that proof was made at the inquest. Everything is desired, nothing admitted by the petitioner. We must act alone on the evidence before us. As the exceptions are not supported by any proof, they are overruled, and the verdict of the jury of inquiry is affirmed.

Alricks and Kwilcel, for plaintiff.

Parlce and Fox, for defendant.

Affirmed by the Supreme Court, May 20th, 1852. •Not reported.


text:
      Court of Common Pleas, Dauphin County,

      December 15th, 1851.
    Mumma v. The Harrisburg, Portsmouth, Mount Joy and Lancaster Railroad Company.
    When a turnpike company, having merely the right of way over land, laid railway tracks along the line of its road, it is liable for damages to the owner of the land. Even if the claimant had given a release of damages to the turnpike company, it would still be liable on changing a road that could be used by the whole neighborhood into one merely beneficial to the company. The claimant should be allowed for the future damages to his property that would result from the ordinary use of the railroad ; the company would then be liable only for gross carelessness.
   By the Court.

Numerous exceptions have been filed to the report of the inquest in this case, embracing in substance the following positions: 1st. The complainant did not show that he applied to the company for damages before presenting his petition to the court. 2d. That he was not entitled to any compensation for the land occupied, as it had been previously dedicated to public use, and this company possessed all the rights of the prior turnpike road company. 3d. The petitioner, not being the owner of the said land, is not authorized by law to apply for damages. 4th. The inquest allowed for consequential injuries, which may never occur, and for which the company would be still answerable, should any happen. By Sect. 4, Art. 7 of the Constitution (of 1838), it is provided, that, “The legislature shall not invest any corporate body or individual with the power of taking private property for public use, without requiring such corporation or individual to make compensation to the owner of said property, or give adequate security therefor, before such property is takeh.” The act under which this railroad company derives its power to enter upon the premises of the petitioner and make the road, was passed since that provision was inserted; of course we are to suppose that the legislature made the grant, and the company accepted it in subserviency to this provision.

A mode is pointed out in the charter for assessing the damages, which from its terms looks rather to the action of the company than the individual. The act provides, “That when the said company cannot agree with the owner or owners of such required land for the purchase thereof, or where the owner is unable to sell, either party may apply to the Court of Common Pleas to appoint an inquest” — clearly implying that the company, not the individual, should become the actor in endeavoring to arrange the damages amicably.

Although this law was passed before the change in the Constitution, yet, as the present power to take the petitioner’s property was conferred since, the fair interpretation of that law, in subordination to the Constitution, throws the whole burden of an application for an amicable arrangement upon the company before taking the petitioner’s property. "We consider that to be the proper interpretation of the law, independent of the Constitution. At most, the failure to make such application could only affect the question of costs.

Although the public, by the action of the turnpike company, had a right of way over the petitioner’s land, the title thereto remained in him. The soil could not even have been temporarily appropriated for that purpose under the amended Constitution without compensation, nor has it been attempted in the present case. Damages had to be paid by the turnpike company for the use of the land. In the present case it is to be presumed that none was sustained, as damages do not appear to have been asked for or paid. But the legislature was wel-1 aware that roads, which might be highly beneficial to the owners of property, when used by the constructors for the same mode of travel as that ordinarily practiced by the neighborhood, would be extremely inconvenient and deleterious, when so changed as to preclude the use by any one except the company, as is uniformly the case with railroads. Therefore, when the turnpike company was authorized to lay rails on the track of its road, provision was made for assessing damages in the same mode prescribed for the Beading Bail-road Company. Act of April 4th, 1837, Section 8. If a doubt might exist as to the application of that section to the present company, the provisions of the 2d section clearly bring it within the act authorizing the construction of a railroad from Portsmouth to Lancaster; when the property of this road was purchased by the H. & L. R.R. Co., it was taken subject to, and under the provisions of the act granting its original corporate character; the 79th and 80th sections of vdiich provide for the assessment of damages. Even if a release of damages had been given by the petitioner to the turnpike company, it would not have precluded him from claiming, -when the whole object of the road was changed; when that vthich was previously profitable and beneficial, had become by a change of structure highly dangerous and hurtful. He could no more be held bound by the license, than could an individual who had given permission to erect a dwelling-house on his premises, be afterwards precluded from objecting to the construction of a smelting-house or a tannery. Here no release is pretended; and the petitioner is entitled to recover damages for the use of his property by the respondents, although the right of way is vested in the turnpike company. The opinion of the Supreme Court in Mifflin v. The H. & L. R.R. Co. (4 H. 182), applies fully to this case and is decisive of it. That decision meets my entire concurrence, and even if it did not, it is binding on our action. The jury wras right in taking into account the probable consequence to the petitioner’s buildings, and the necessity of changing or removing them. The decision in the P. & R. R.R. Co. v. Yeiser (8 Barr, 364) is directly in point. There is no substantial variance between the words of the act under which that decision was made, and the one under which the present jury acted. If damages occurred to the house or barn of the petitioner by the ordinary use of this road, without carelessness on the part of the company or its agents, there would be • no responsibility. Such chances are presumed to be taken into view in assessing the damages. There could probably be no fairer mode for both parties, than to estimate the cost of removing the- barn and slating the house. It could scarcely be expected that the owner would risk his harvest in the one, or his family in the other, in their present unprotected state.

Alriolcs and Kunhel, for plaintiff.

Parhe and Fox, for defendant.

The objection has failed in all of the exceptions; therefore, the verdict rendered by the jury is affirmed.

Affirmed by ti-ie Supreme Court, July 20th, 1852. Not reported.


text:
      Court of Common Pleas, Dauphin County,

      March 13th, 1852.
    Shell v. McConnell.
    Upon a certiorari to a justice of the peace, the plaintiff may take affidavits to show that the judgment was fraudulent; and also to prove that the date was incorrect, in order to show that the certiorari was issued within twenty days.
   By the Court.

The proceedings of the justice in this case appear on the record to be perfectly regular, and the certiorari did not issue for more than twenty days after the rendition of the judgment, if we may judge from the transcript. Can this judgment be impeached? It is very certain that it cannot be done collaterally; but depositions are offered for the purpose of impeaching it directly, and showing that the same was fraudulently and improperly entered by the justice at a time long subsequent to that stated on the docket. As a general rule, no depositions can be received to sustain or overturn the proceedings of a justice when brought before the court on a certiorari, but the same must be judged of by the record alone. To this rule there are admitted exceptions. You may show that the magistrate had, or had not jurisdiction; that the case was pending before another justice. You may also show corruption or partiality on the part of the justice; or that his docket was falsely kept. The court must go into inquiries, per testes, to show that the magistrate has exceeded his jurisdiction, or acted partially or corruptly, or has made up a false record. To refuse this would, in many cases, be shutting out the only means of light. A justice might make a regular entry of the issuing and return of a summons, the appearance or default of a party, and the rendition of a judgment, when, in fact, no summons had issued, the party never had notice, and the service of an execution was his first knowledge of the claim. This might be done by a magistrate who was perfectly irresponsible. Although the act of 1810 forbids the setting aside of any judgment on a certiorari, unless the same was issued within twenty days after the rendition of the judgment, yet that can only apply to such as are publicly rendered pursuant to the act of Assembly, and of which the defendant had notice. The legislature never intended to exclude an examination from such as were corruptly and secretly entered without notice; and still less would the law debar a party from inquiring into the actual time of entering the judgment, although it might lead to a contradiction of the record. The most solemn records of the highest courts of judicature in the country may be impeached for actual fraud. The question presented by the depositions is one of actual fraud. Whether a false entry was or was not made on the docket of the justice of a judgment rendered November 24th, when in fact it was not done until- December 9th. This must be clearly and satisfactorily made out. The principal evidence in the case is that of Solomon Shadon and the written certificate of the justice. Shadon testifies, that he was subpoenaed as a witness to attend before the justice in this same case on December 9th; that he did attend; that the justice said he had made no docket entries in the case; that he had given no judgment against the defendant, who then demanded a nonsuit. This was granted, and a certificate given him by the justice to that effect; which certificate is annexed to the depositions. The justice afterwards told the defendant oar the same day, that the cause was at an end, and the judgment would not be opened; that the plaintiff had no remedy except by an appeal. This evideaace, standing as it does entirely uncontradicted, is so conclusive that it cannot be disregarded. The defendant took all the precautions that he possibly could, and more than is usual, in obtaining the certificate of nonsuit from the justice, and was not bound to look further after the case. He had every reason for believing that it was at an end. If no subpoena issued for the witness returnable on December 9th; if the justice was aaot called on at that time to enter a aaonsuit; if his docket entries were all of them regularly made, as now exlaibited to court, there might be some proof to that effect made by the plaintiff. At least the deposition of the justice should be produced. The evideaace stands imcontradicted. It is true that the joastice certifies that the paper furnished by him was the mere form of a noaasuit. But, wlay give the defendant the form of a nonsuit on December 9th, when judgment had been rendered against him November 24th, preceding? The anost charitable construction we can come to is, that the magistrate, having, as he says, made no docket entries at the time, had set all dowaa from memory long afterwards, when the circumstance of nonsuit was forgotten. Keeping a docket in the memory is most irregular, and will always lead to mistake. It is itself a fatal error. This judgment must be oaeversed. But if the plaintiff has a good caoase of action, and recovers in another suit, he will obtain all that he loses by this proceeding; if he has not, he cannot coanplain of any iaajustice through the default of the magistrate.

Hawn, for plaintiff.

Herr, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      May 28th, 1852.
    Trump v. Straw.
    An award of arbitrators will be set aside on the ground of undue influence, when they increased the amount found due at the suggestion of the plaintiff's counsel in order to carry costs.
   By the Court.

The whole of the facts on which this motion is predicated are stated in the deposition of Jacob Houser, taken and received by consent. The only question presented is, was the award for six dollars “procured by corruption, or other undue means ? ” There is no pretence that actual corruption existed on the part of any one, client, counsel, or arbitrators; but it is contended that “undue means” were used to raise the amount of the award in order to carry costs. There is no allegation that any impropriety was intended. The question raised and argued is, whether the conduct of the plaintiff’s counsel and that of the arbitrators is against the policy of the law? It is very clear that, in consequence of an ex parte suggestion of the plaintiffs counsel to two of the arbitrators after the award was made out, signed, and handed to him, that the sum was too low to carry costs, it was increased from either three or five dollars to six dollars. On the arbitrators declaring that it was their intention to make the defendant pay the costs, the plaintiff’s counsel might have safely informed them that their award could not have that effect unless differently worded; and had they then changed it to “ full costs,” or “ costs of suit,” their object would have been effected.

He might also with safety have referred them to counsel not interested in the case for information as to the legal form of the award, or the effect of increasing the damages. The suggestion to increase the amount here came from the counsel, innocently I have no doubt, but improperly in contemplation of law. It is against the whole policy of law to permit this kind of interference by the parties or their counsel. Suppose, instead of being an increase of one dollar, on the suggestion of counsel in order to effect the intentions of the arbitrators as to costs, it had been an increase of one hundred dollars, in order to clear up the stigma resting on the character of the plaintiff in an action of slander, we should be startled by the result; yet the principle is the same. Suppose, in the present case, upon the arbitrators showing the plaintiff’s counsel an award for one or five dollars damages and costs of suit, he had stated to them that such an award would leave his client’s character worse than before he had commenced his action, and they had taken back the paper, reconsidered the award, and made it out for one hundred dollars, would not every one be prepared to say that such award was changed by “ undue means ? ” Not by fair open argument on the trial, but by conversation with the arbitrators after the case was over. “Undue means ” signifies any means which are illegal or improper, not right, not according to law or rule. What should we say to the verdict of a jury which was made out in writing, signed, sealed up, and ready to be delivered in court, and should be altered in some material part at the suggestion of either party or their counsel ? Is there any court which would hesitate to set it aside, although the alteration was made upon due consideration by the whole jury? That part of the act of 1836, relative to undue means to influence arbitrators, has not yet received a judicial construction, so far as I have been able to learn. Although the present decision may operate hardly upon an innocent party, yet I am glad that the question has arisen in a case where the counsel and arbitrators are above and clear of all suspicion of improper and corrupt motives, so that the legal question may be investigated without bias. Although I am satisfied that the alteration was innocently suggested, and had it come from any other source would have been within the legal power of the arbitrators and properly made, yet I am constrained to say that it is against legal policy, and that in contemplation of law the award was increased in amount by “ ■undue means,” and therefore must be set aside.

McAllister, for plaintiff.

Pawn, for defendant.

The award is set aside. The question of costs is reserved to be determined after final judgment.