author: Mr. Justice Sterrbtt

text:
    Workingmen’s Building and Loan Association versus Coleman.
    1. The application for the charter of a building association, and the action of the Court of Common Pleas in granting the same, were intended to be under the provisions of the “ Building Association Act” of April 12th 1859. The leading features of the charter corresponded with the provisions of said act, and it apparently was organized thereunder, and conducted its business in accordance therewith. The act, however, provides that ten or more persons must make the application to the court for the charter, while this application was signed by nine only. Held, that while the application and proceedings thereunder were clearly defective, the defect was cured by the Act of May 11th 1874, which is declared to be applicable to such corporations as were actually operating under, and transacting business in pursuance and by virtue of charters defective in validity, and the association was entitled to exercise the rights and franchises conferred by the Act of 1859.
    2. Rhoads v. Hoernerstown Building and Savings Association, 1 Norris 180, distinguished.
    March 14th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1879, No. 198.
    On February 23d 1872, the Workingmen’s Building and Loan Association of Ilyde Park, Pennsylvania, entered a judgment against Owen Coleman, on a note given by him to said association. The note was for $1000, and contained a confession of judgment, and •was given'for a loan made to him by the association in accordance with its regulations. On January 5th 1877, the defendant in the judgment obtained a rule to show cause why said judgment should not be opened, and defendant let into a defence, which rule was made absolute and an issue framed. At the trial before Handley, J., the plaintiffs claimed that they were entitled to the special rights and privileges conferred by the Act of April 12th 1859, known as the “ Building Association Act.” The defendant alleged that the charter of the association was defective, inasmuch as in the application made for said charter there was not the requisite number of signers, prescribed by said act, and it could not therefore claim its privileges, and contended for this reason, that defendant could only be compelled to pay plaintiff the money actually loaned with interest. It was agreed by the parties that if the plaintiffs were incorporated under the Act of 1859, and possessed the rights and franchises conferred by said act, the plaintiffs were entitled to recover $836 ; but if not, to recover only $207.19.
    The plaintiffs submitted the following point, which the court, Handley, J., affirmed:
    “ That the validity of the charter of incorporation cannot be inquired into in this case; cannot be assailed collaterally.”
    The • defendant submitted the following point, to which is appended the answer of the court.
    If the association was incorporated in 1869, by the Court of Common Pleas, upon a petition signed by a less number of persons than required by the Act of 1859, it is not entitled to recover of the defendant more that the sum actually loaned, with legal interest thereon.
    Ans. “ This point we affirm. There is nothing in the charter of the plaintiffs to show that this association was incorporated under any act specially named. No authority .is given to the Court of Common Pleas to incorporate any number of persons less than ten for the purposes claimed by these plaintiffs. Yet the plaintiffs contend that they were incorporated under the Act of 1859, and hence are entitled to all of its privileges and benefits. But it was recently held by the Supreme Court of Pennsylvania, that unless the number of persons called for by the Act of 1859 shall have signed the petition, they are not incorporated as the law provides.”
    In the general charge the court, inter alia, said : “ In this case, the number of persons who signed the petition, as we have said, before to you, falls short just one, and that, in the eye of the law, is as fatal as if the charter was signed only by one, and fell short nine. Whilst the plaintiffs may be a corporation de facto, yet they are not incorporated as the Act of 1859 provides. We therefore instruct, under the evidence and the law, that your verdict will be •in favor of the plaintiffs for the sum of $207.19.” •

      The plaintiffs took this writ and alleged that the court erred in affirming the defendant’s point, in the portion of the charge noted, and in the foregoing instruction.

      JE. B. Sturges and It. W. Archibald,, for plaintiffs in error.—
    Rhoads v. Hoernerstown Building Association, 1 Norris 180, simply decided that the fact of there being a less number of signers to the petition for incorporation than ten, was evidence that they did not seek for a charter under the Act of 1859. There was also in the charter in that case various powers which were not conferred by the Act of 1859, which showed that it was not granted under that act.
    In the plaintiff association, on the contrary, the various sections of the charter show the closest adherence to the Act of 1859, although there is no express reference to that act. Several sections quote its provisions word for word, and it is believed that there is not the slightest inconsistency in any of its provisions.
    We contend, however, that all defects in the granting of the present charter were cured by the Act of 11th May 1874, Pamph. L. 133; Brightly Purd., p. 1851, pi. 60. That act was passed to cover “technical defects,” whereby “innocent persons might be injured.” It is certainly sufficient in itself to meet the case of a man who had accepted the charter as a contract, had drawn out money from the association, under its provisions, and had shared the advantages and benefits of its membership for years. Can he now come in and claim immunity under the proviso of the statute reserving any “previously acquired rights.” We claim that the defendant in error has taken himself out from the benefit of this proviso.

      Lemuel Amerman, for defendant in error.
    That this association was not incorporated under the Act of 1859, is clearly shown by the decision in Rhoads v. Hoernerstown Building Association, supra.

    The Act of 1874 is not appliable to the present case.
   Mr. Justice Sterrbtt

delivered the opinion of the court, March 24th 1879.

The corporate existence of the plaintiffs in error has not been called in question, nor indeed could it be in this collateral proceeding : Rhoads v. The Hoernerstown Building and Savings Association, 1 Norris 180; but, the defendant denies that the association was incorporated under the Act of April 12th 1859, and therefore not clothed with certain rights and franchises conferred by that act. It cannot be doubted that the application for the charter in question, and the action of the court in granting the same, were intended to be under that act. The leading features of the charter correspond with the provisions of the act; and, so far as appears, the association was organized and its business conducted in accordance therewith. The act, however, provides that when ten or more persons may desire to form an association under its provisions, they shall make application to the Court of Common Pleas of the proper county, &c. In this case the petition was signed by nine only, and there is nothing in the body of the charter, or in the record of the proceedings, to clearly show that others united in the application or were in fact associated with the petitioners for the purposes specified in the articles of association presented to the court. It is claimed, however, that the fourth article of the charter, which provides that the officers shall be a president, vice-president, secretary and nine directors, implies that ten or more persons were associated and desired to be incorporated. This does not necessarily follow. The three officers named might be chosen from the nine directors. The application and proceedings to obtain the charter were evidently informal and defective in not clearly showing that the requisite number were before the court, on their own petition or otherwise, asking to be incorporated under the act; but, we think this defect was cured by the Act of May 11th 1874, Pamph. L. 133. The act is general, very comprehensive in its terms and is declared to be applicable to such corporations as were “ actually operating under and transacting business in pursuance and by virtue of” charters, “ defective in validity.” The language is certainly sufficient to include such charters as the one now under consideration. The association was actually in operation, transacting business in pursuance of its charter, which contains provisions corresponding with those of the Act of 1859, and to be found nowhere else.

The proviso to the act declares that rights acquired previous to its enactment shall not be affected thereby. If the defendant had any such rights they were thus protected, and there was nothing to prevent him from asserting them. He continued to recognise the contract which he had previously 'made with the association of which he was all the while a member. It was doubtless for the mutual benefit of all the members that any technical or other defect in the charter, under which they were transacting business, should be cured and thus any doubt as to their corporate power and authority removed; and if the defendant continued, after the passage of the curing act, to maintain his relations to the association, as a member thereof, enjoying, in common with other members, the benefits of the charter thus validated, he should be bound by its requirements.

This case differs from Rhoads v. The Hoernerstown Building and Savings Association, supra. In that case it was manifest that the association was not incorporated, nor intended to be, under the Act of 1859. An examination of the charter revealed the fact that many of its important provisions were inconsistent if not in direct conflict with that act. Several of these inconsistences are pointed out by our brother Paxson in his opinion in that case. In addition to this the Act of 1874 was not brought to the notice of the court, for the reason perhaps that it was deemed inappliable, or, it may be because the suit was commenced in the court below before the date of its passage.

We are of opinion that the learned judge erred in holding that the plaintiffs were not entitled to exercise the rights and franchises conferred by the Act of 1859, and consequently could not recover more than the sum actually loaned, with legal interest thereon.

Judgment reversed, and a venire de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Pauli versus Commonwealth.
    1. An interlineation of certain words in a lease, so as to make it conform to the understanding of the parties at the time of its execution, is not a fraudulent alteration or forgery.
    2. General evidence that a defendant is a had man is not admissible upon a trial for forgery, and if inadvertently admitted upon the trial, it was error to submit it to the jury as an element for their consideration in disposing of the question of character.
    3. It was error to charge the jury, that to acquit a defendant, they must find a theory that will lead to a verdict of not guilty conclusively.
    4. In favor of the liberty of the citizen, and in a proper case the court should declare that the evidence is insufficient to convict.
    March 14th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Quarter Sessions of Luzerne county: Of July Term 1878, No. 33.
    Indictment of E. S. Pauli for forgery. At the trial, before Stanton, J., it appeared that the defendant had leased to A. Johnson two upper stories of a certain building in the city of Scranton. The alleged forgery consisted in the interlineation in the lease by the defendant of the words “save the outside improvements, not to be restricted by the second party in removing poi'ches on the outside.” Pauli prepared the lease, and before signing it, Johnson went away with a copy of it to consult certain parties in regard to its terms. Previous to his going, Pauli had said to Johnson that; he intended to remove two small porches in front of the demised premises. During the absence of Johnson, Pauli inserted the above words, “save the outside,” &c., in the lease. Johnson did not bring back the copy he took with him, but on his return signed the lease in which Pauli had inserted the above words.
    Two witnesses testified that Pauli called the attention of Johnson to the words which had been inserted.' This was denied by Johnson, but he admitted that Pauli had spoken to him in regard to the alteration of the porches. The other material facts will be found in the opinion of this court.

      The j ury gave a verdict of guilty. The court overruled a motion for a new trial and asked the district attorney to move for sentence, which that official refused to do. The court subsequently, against the expressed protest of the district attorney, sentenced the defendant to pay a fine of $200, to pay the costs, and to an imprisonment of two years at hard labor. A writ of error was taken by defendant, the Supreme Court in the allocatur ordering sentence to be stayed. The assignments of error are sufficiently set forth in the opinion of this court.

      Daniel Dougherty, for plaintiff in error.

      H. W. Palmer and O. P. Rice, District Attorney, for the Commonwealth.

      Mr. Palmer stated to the court that he had been asked to assist in the trial of this case and that having heard the testimony he was convinced that the prosecution was an outrage and withdrew therefrom. He argued that a new trial should have been granted, and asked the court in the interest of justice to reverse the case.
    Mr. Rice said that a new trial should have been granted and he had so stated to the court below before sentence. As the prosecuting officer, after hearing the testimony, he -was compelled to say there should have been no conviction.
   Mr. Justice Paxson

delivered the opinion of the court, March 24th 1879.

It is fortunate for the administration of criminal law in Pennsylvania that a case seldom comes before us containing such serious errors as are disclosed in this record. The vice of it runs all through the charge of the court. The jury were not only erroneously instructed upon the law, but were palpably misled by the comments of the court upon the evidence.

The learned judge might well' have declined the defendant’s second point for the reason that it assumed the facts. Instead of merely declining it, he answered it in a way that was calculated to mislead the jury. The defendant was indicted for forgery; the alleged forgery consisting in the interlineation of the words: “ Save the outside improvements, not to be restricted by the second party in removing porches on the outside,” in a lease for certain real estate in the city of Scranton, between F. S. Pauli, the defendant below, and one Andrew Johnson. The defence was that the words, were interlined before the lease was signed by Johnson, the lessee,' and his attention called thereto at the time he executed it. There was evidence of an understanding that the porches should be removed. The defendant’s second point asked the court to instruct the jury, that'in view of this agreement to remove the porches.the alteration, even if made after the lease had been signed by Johnson, was not made fraudulently, and to the prejudice of the lessees’ rights. The court said : “ Well, we can scarcely affirm that, because this statute makes it a misdemeanor if it be done to the prejudice of another’s right. If it had been done as alleged by the Commonwealth ; if it has been done, it certainly has been done to the prejudice of the rights of this man Johnson, and we cannot affirm this point.” This was not an adequate instruction. The concluding sentence of it was positive error, as it practically took from the jury the question of the existence of the parol agreement. The jury should have been told that if the lease had merely been interlined, to make it conform to what was in truth the understanding and agreement of the parties at the time it was executed, such alteration was not made fraudulently, or to the prejudice of the rights of the lessee.

The next error (second assignment) was more serious. The jury were told by the court that Mr. Johnson, his wife and Mr. De Long, had all testified that the alteration had been made after the lease was signed by Johnson and Mr. Pauli, and that if they believed the testimony of these parties, it was sufficient to convict the defendant.

An examination of the evidence shows that this instruction was clearly erroneous. Neither Mr. De Long nor Mrs. Johnson testified that the lease was interlined after its execution. Mr. Johnson is the only one of the three who does say so, and even he admitted, upon his cross-examination, that the removal of the porches was referred to at the time. He says: “ I don’t know whether he (Pauli) told me the time; he never said anything about it only at the time the lease was signed; then he did say something about moving them ; he mentioned to me about this before I signed the copy; it was at the time I signed the original.” The gravity of this error is apparent. It opened a way to the jury to convict the defendant when such an event would not have been possible under any correct view of the case. A judge cannot exercise too much care in commenting upon evidence; especially in cases where a man’s liberty and reputation are involved in the issue. Mistakes will sometimes occur in the hurry of trial, and when they do, they may and ought to be corrected upon a motion for a new trial. The court below must have taken a view of this evidence which is concealed from our vision, as the motion for a new trial was overruled and sentence imposed upon the defendant.

The portions of the charge embraced in the third and fourth assignments are equally erroneous, but not quite so damaging. The learned judge, assuming the testimony of the three witnesses above referred to, to be as he understood it, told the jury that it was impossible to reconcile it with the evidence of Pauli, Goodrich and Porter, witnesses for the defendant. The judge erred here both in his premises and his conclusion. Under the view which we take of the evidence there was no serious conflict upon any material fact in the cause.

The vice of the instruction contained in the fifth assignment is that it does not give proper weight to the defence. It does not adequately present it to the jury. The court said: “Mr. Pauli himself takes the stand, and denies that this insertion of the words I have read to you was made after the lease was signed by himself and Mr. Johnson. He is supported in this, in a measure, by two or three other witnesses whom he alleges were present, but who Mr. Johnson thinks were not present.” The defendant called two witnesses, Henry Porter and C. F. Goodrich, who were present in Pauli’s store when Johnson signed the lease. Porter said : “ I was present when Mr. Johnson came in ; I think it was on the 30th of March, before noon, at Mr. Pauli’s store; Mr. Johnson said he was ready to sign that lease, and Pauli says to him: “Johnson, I have put in these leases about those porches; now if you want to sign this lease with this in it, you can do it or let it alone.” Mr. Goodrich was equally distinct and to the same effect. It was conceded that these were both intelligent and respectable men. They were the only disinterested witnesses who testified upon this point with knowledge of the facts. Opposed to their testimony there was really nothing but the denial of Johnson that the words were in when he signed the lease, qualified by his admission that Pauli did tell him at the time that he was going to take down the porches. The portion of the charge referred to was modified to some extent by what followed immediately after. But with this qualification there was a failure to present the case of the defendant to the jury in the clear and impartial manner in which he was entitled to have it considered.

The sixth assignment alleges error in the instruction of the court upon the question of character. I quote the language especially objected to: “ Witnesses have been produced by the other side, who say, that they have heard certain things alleged against Mr. Pauli; for instance, the one allegation that he is a bad man. Now, this is testimony that you are to give due consideration to.” General evidence that a defendant is a bad man is not admissible in any civilized country upon a trial for forgery, by any recognised rule of evidence. If admitted by an oversight upon the trial, it was certainly error in the court to submit it to the jury as an element for their consideration in disposing of the question of character.

Equally erroneous were the rulings referred to in the seventh and ninth assignments. The jury were told : “You must not say that he may not be guilty, but you must find a theory that will lead to a verdict of not guilty conclusively, and that will have substance to it, not a mere shadow.” While there is some obscurity in this portion of the charge, the jury could not have failed to understand, that unless they could find a theory that conclusively established the innocence of the defendant, they must convict him. There is no authority for such a rule as this. It was laying too heavy a burden upon the defendant.

The assignments from ten to eighteen inclusive may be passed without comment. The nineteenth assignment is based upon the defendant’s third point, and alleges that the court erred in not distinctly instructing the jury that the testimony produced by the Commonwealth was insufficient under the law to .convict the defendant of forgery as indicted. This is not a question of the weight of the evidence, but of its sufficiency. We have no doubt that in favor of the liberty of the citizen, the court may, and in a proper case should, declare the evidence insufficient to convict. We think the defendant’s point was justified under all the facts of the case, and it should have been affirmed. There was no evidence to justify the jury in rendering a verdict of guilty, or the court in sustaining it.

The judgment is reversed, and the plaintiff in error is discharged from his recognisance.


author: Per Curiam.

text:
    Rhoads versus Reed.
    1. Where a bond is conditioned for the payment of a certain sum, and no time is fixed therein for payment, it is in law a covenant for immediate payment.
    2. Where the prsecipe for a scire facias refers to the record of a mortgage, the writ may issue thereon, although the scire facias contains no averment as to the time of payment of the debt.
    March 17th 1879.
    Before Sharswóod, C. J'., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Schuylkill county: Of January Term 1879, No. 159.
    Scire facias sur mortgage issued by Henry Reed against Isaac Rhoads. The prsecipe for the writ of scire facias was filed on the 9th of May 1877, wherein reference was made to the record of the mortgage by book and page. The mortgage, which was dated August 15th 1868, set forth that said Rhoads “ by a certain obligation or writing obligatory, under his hand and seal duly executed] bearing even date herewith, stands bound unto the said Ilenry Reed in the sum of $6000, conditioned for the payment of the just sum of $3000 until the 1st day of April 1869, with interest at 3 per cent, from the above date, until due and after due, if not paid, to bear 6 per cent, interest for the same without any fraud or further delay, as in and by the said bond recited, obligation and condition thereof, relation being thereunto had, may more fully and at large appear.”
    On. July 2d 1877, judgment was entered against defendant for want of an affidavit of defence, and the damages were assessed at $3405.50. On the 12th November 1877, a writ of levari facias was issued to December term 1877. On the 19th November 1877, after the property had been advertised for sale, the defendant filed an affidavit that the writ of scire facias, issued in above case, set forth no time when the principal or interest on the mortgage became due and payable, and on the same day the court granted a “rule on plaintiff to show cause why the judgment in above case should not be stricken off or opened for matters appearing on the record.” This rule was made returnable in one week. The court made no order to stay proceedings upon the writ of levari facias, and the property was sold on the 1st day of December 1877, to the plaintiff, and on the 17th December 1877, a rule was granted to show cause why the acknowledgment of the deed by the sheriff should not be disallowed and the sheriff’s sale set aside for the reason that on 19th November 1877, a rule had been granted at the instance of defendant to show cause why the judgment should not be set aside, which rule was pending and undetermined when the sheriff’s sale of the real estate of defendant took place.
    On January 5th 1878, the court discharged both rules and the sheriff acknowledged his deed to plaintiff. Defendant took this writ, assigning for error the entry of judgment for plaintiff and discharging the rules.

      Benjamin W. Gumming, for plaintiff in error.
    The scire facias showed on its face no immediate cause of action. It omitted to set forth when the alleged debt fell due, arising from the recited conditional obligation. No inference from the date can be drawn as to the time of payment. An averment that one was indebted is not a ground to infer that the debt was then payable. It cannot be intended that a debt presently due was meant from the allegation that it was unpaid. The time of payment is part of a contract. The instrument must be stated in terms or according to its legal effect. A scire facias answers both the purposes of a writ and declaration, and it must show on its face an immediate cause of action to warrant judgment thereon by default: Swift et ux. v. Allegheny Valley Building Association, Í Norris 142. In the present case, the obligation is conditioned for the payment of $3000, but no inference from the date of the indenture can be drawn as to time of payment. It cannot fairly be intended that a debt presently due was meant. It is submitted that justice requires that when a plaintiff resorts to a judgment by default, he should not violate an essential rule of pleading, by omitting to state when the obligation falls due, and that, if he does omit this necessary statement, he is as much in default as the defendant, and therefore is not entitled to judgment.
    G. R. and S. S. Kaercher, for defendant in error.
    In Kennedy v. Ross, 1 Casey 256, the court below, though no copy of the bond or mortgage had been filed, and the prsecipé simply referred to the mortgage, upon a motion for judgment for want of an affidavit of defence, resorted to the accompanying bond for the purpose of construing the recitals in scire facias and mortgage, which left it very obscure as to whether anything was due at the time the writ was issued. Notwithstanding this, the court below granted judgment for want of an affidavit of defence, and the Supreme Court affirmed the same.
    In the present case the praecipe refers to the place of record of the mortgage; there is no ambiguity in the recitals of the mortgage, and it plainly appears the principal debt was due and payable eight years before suit brought. The scire facias averred that the debt “with interest thereof, as yet remains unpaid.” The Act of 14th April 1851, sect. 14, Pamph. L. 625,' authorizing the entry of judgment for want of an affidavit of defence; in actions, inter alia, of scire facias on mortgages, did not require a copy of the mortgage to be filed. In McConeghy v. Kirk, 18 P. F. Smith 201, it was held that where a copy of a note was filed in an action against an endorser, the presumption was that all necessary steps were taken to fix liability, and it was not essential to aver presentment, demand, &c. The defendant must so aver in his affidavit of defence, if such steps have not been taken.
   The judgment of the Supreme Court was entered March 31st 1879,

Per Curiam.

The praecipe for the scire facias on the mortgage referred to the record which gave the defendant all necessary information, as the Act of the 14th of April 1851, Pamph. L. 625, did not require a copy of the mortgage to be filed. Besides, the scire facias set out the mortgage, reciting a bond conditioned for the payment of $3000, which in law means forthwith, and the scire facias issued ten years from the date of the mortgage. If the mortgage was not due and ripe for a scire facias, it was for the defendant to aver it in an affidavit of defence.

Judgment affirmed


author: Mr. Justice Trunkey

text:
    Pottsville Mutual Fire Insurance Company versus Horan.
    1. By the terms of a fire insurance policy, the assured stipulated that the representations made by him in the application were a warranty on his part that said application contained a true exposition of the consideration, situation, value and risk of the property, and further, if by any means the risk should be increased, and the assured neglect to notify the company, that the policy should be void. Held, that the neglect to mention the existence of a carpenter shop on the premises at the time of the application, and the erection after the insurance of a new building by the insured on an adjoining lot, without notice to the company, avoided the policy.

      2. To set off the claim that the risk had been increased by the erection of the new building, it was contended that the risk had been diminished by the removal of the carpenter shop and its erection into a dwelling-house, and the court left it to the jury to determine the question. Held, that this was error.
    March 17th 1879.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Schuylkill county: Of January Term 1878, No. 6.
    Covenant by Thomas Horan against the. Pottsville Mutual Fire Insurance Company on a policy of insurance. At the trial it appeared that on April 5th 1873, Horan applied to the agent of the company for an insurance of $2000 upon a two-story frame house, upon lot No. 6 in the town of Gilberton. In the application were a number of questions, the seventh of which was in these words, “ For what purpose are the adjoining buildings used within eight rods ?” and the answer thereto was, “ Private dwellings.” At the foot of these questions were the following stipulations:
    “And the undersigned, applicant for the proposed insurance, hereby covenants and agrees to accept of the policy issued upon this application and survey, if in accordance therewith. But if any untrue answer has been given to the foregoing interrogatories, whereby the said company has been deceived, as to the character of the risk, or if any change be made as to tenants and occupancy of these premises, without being notified to this company, and endorsed upon their policy, then said policy of said insurance to be void and of no effect. It is also agreed, if the company so elect, that by returning the premium for the unexpired term of this insurance, after giving due notice of their intention to do so, this insurance shall thenceforth cease. And the insured hereby covenants and engages that the representations given.in the application for this insurance is a warranty on the part of the assured, and contains a just, full and true exposition of all the facts and circumstances in regard to condition, situation and value of the property insured.
    “And the said applicant hereby covenants and agrees to and with the said company, that the foregoing- is a just, full and true exposition of all the circumstances in regard to the condition, situation, value and risk of the property to be insured, so far as the same are known to the applicant, and are material to the risk.”
    The conditions of insurance attached to the policy stipulated, inter alia, as follows:
    1. Applications for insurance shall specify the construction and material of the buildings to be insured, * * * by whom
    occupied, whether as a private dwelling or how otherwise; its situation with regard to contiguous buildings, and their construction or' materials. The applicant shall also state the true cash value of the property to be insured; also any other facts relating and material to the risk.

      And the said valuation, description and survey shall be taken and deemed to be the act of the insured, and a warranty on his, her or their part.
    A false description of, or omission to make known in said application any fact or feature relating to the risk, or which, if known, would induce the company to reject said application, or would, in their, estimation, increase the hazard of the same, or an over-valuation of the property or interest insured, shall render absolutely void any policy issued upon such description or valuation.
    2. If, after insurance, the risk shall be increased by any means whatsoever, or if the property be used or occupied so as to render the risk more hazardous than at the time of insuring, and the assured shall neglect to notify the company of said increased risk, or fails to pay such additional premium as the company shall determine, and obtain the written consent of the secretary to a continuance of the policy, such insurance shall be void and of no effect.
    11. Persons sustaining loss or damage by fire * * * shall deliver * * * particular account of their loss or damage, rendering to this company * * * the actual cash value of each article or item, respectively, at the time of such loss, signed with their own hands, which said account shall set forth the whole cash value of the subject insured. And they shall accompany the same with their oath or affirmation, declaring the said account to be true and just; showing also whether any or what insurances have been made on the same property, * * * and giving a copy of the written portion of the policy of each company, with the endorsements thereon ; * * * how the fire originated, so far as- they know or believe, or have any information, and how the premises were occupied, and who were the occupants at the time of the loss.
    Any misrepresentation or concealment, fraud or false swearing, shall cause a forfeiture of all claims on the insurers, and shall be a full bar to all remedies against this company, under the within policy. And said company shall in no case be deemed to have waived a full, strict and literal compliance with and performance of each and every of the terms, provisions, conditions and stipulations in this policy contained, and hereto annexed, to be performed and observed by and on the part of the insured, and every person claiming by, through or under them, unless such waiver be express, and manifested in writing, under the signature of the secretary of said company. And no agent of this company shall have power to violate any of these conditions.
    19. No agent of this company shall have the right or power to waive any of the foregoing conditions, unless fully authorized thereto by the secretary of this company, in writing.
    It appeared that at the time of the application for insurance there was a little one-story shed or building, used as a carpenter shop, on lot No. 6 (the same lot on which the building insured stood), lot No. 7 being entirely vacant at that- time. This little building stood north and back of the house insured,, but was not taken into consideration by Davidson, the agent, or Horan as affecting the risk, because it was understood that Horan, would at once remove it to the opposite side of lot No. 7, and convert it into a dwelling-house.
    About two months after obtaining the policy, Horan commenced to erect a frame dwelling-house upon lot -No. 7, and finished the same that summer. This building filled up the vacant space be^ tween Horan’s house and one Hildebrand’s, and thus made a continuous row of houses. The agent never' notified the company of the existence of the carpenter shop or of the erection of the new building.
    The fire by which the insured property was destroyed, occurred on the 23d day of September 1874,- and originated in the Hildebrand house, whence it spread to the adjoining new building lately erected by Horan, and through it was communicated to the house insured.
    The company offered evidence tending to show that the erection of the new building upon the vacant lot, without notice to the company, was a material increase of the risk to the property insured and claimed it avoided the policy. There was evidence on t¿he part of plaintiff that he informed the company’s agent of his intention to build at the time he made the application, and that after the building was erected, he showed it to.the agent. The latter alleged that plaintiff did not speak to him about it in his capacity as agent. The eleventh assignment of error was the following portion of the court’s (Green, J.,) charge :
    “ But it becomes a question of fact for you to determine as to whether there was any increased risk by reason of the erection of the adjoining building. If there was no increased risk, then there was no necessity imposed upon Horan of. .giving any notice to the company at all, because the risk was not increased. It is a question of fact for you to determine whether it was increased'ór not. If. you shoirld determine that it was increased, then it would be the duty of Horan to give notice to the company of the increased risk.
    “You will recollect the testimony in this case, that at the time that this application was made, or at the time the policy was issued there was this building upon lot No. 6, purchased from Seaman, and in addition to that there was a little building in the rear, some 16 by 24 feet, which had been used by Seaman as a carpenter shop. That was adjoining the main building of Seaman, just in the-rear. When Horan had purchased this property, the carpenter shop was removed from where it was and put oyer- to the other line of the lot close to Hildebrand’s, and was changed from a carpenter shop to a dwelling-house. That possibly may have lessened the risk of fire to the building insured by Horan ; it was moved to a greater distance away. You have the testimony with regard to the erection of the building upon this adjoining lot between Hildebrand’s and the other house which Ploran purchased. You have also the testimony as to the character of the building that was there, and it becomes a question of fact for you to decide as to whether there was any increased risk — that is, increased beyond the risk that existed at the time when the application and policy were effected. You must take into consideration, in the first place, the erection of the building that was placed there, and the testimony of the witnesses with regard to that; the testimony of the different fire insurance agents ; the testimony of Miller and Hill; the testimony of the officers’of the Pottsville Fire Insurance Company with regard to the increase of risk and the amount of additional premium that they would have charged by reason of the increase of risk. Then you must take into consideration whether there was anything by which the risk was lessened, so it would be for you to determine, under all the evidence in this case, whether, by reason of the erection of one building and the removal of another, the risk of fire at the time that the insurance was affected was substantially increased or diminished by the erection of the one and the removal of the other.
    It is a question of fact for the jury to decide, under all the evidence in this case, as to whether there was any increase of risk by fire; and whether it was counterbalanced by the removal of the building to which he has referred.”
    The verdict was for plaintiff for $1717.50. The defendant took this writ; among its assignments of error were the foregoing portion of the charge.

      A. W. Schallc, for plaintiff in error.
    A policy of insurance, with its clauses, conditions and stipulations, is the law of the legal relation between the insurers and insured, by which their mutual rights and liabilities are to be understood and measured: Weisenberger v. Harmony Insurance Co., 6 P. F. Smith 444.
    The erection of the adjoining building, without notice to the company, was an increase of the risk and avoided the policy: Flanders on Fire Insurance, 2d ed. 520-531; Calvert v. Hamilton Mut. Ins. Co., 1 Allen 308; 4 Bennett’s Fire Ins. Cases 538; 1 Id. 316; Stebbins v. Globe Ins. Co., 2 Hall 632; Francis v. Somérville Mut. Ins. Co., 1 Dutcher 78 ; Murdock et al. v. Chenango Mut. Ins. Co., 2 Comstock 210. Before the erection of the new building upon the premises, the assured should have obtained the consent of the company or paid an additional premium : Evans v. Tri-Mountain Mut. Fire Ins. Co., 9 Allen (Mass.) 329; Id. p. 310, sect. 29); Kern v. South St. Louis Mut. Ins. Co., 40 Mo. 19; Roberts v. Chenango County Mut. Ins. Co., 3 Hill (N. Y.) 501: Allen v. Massasoit Ins. Co., 99 Mass. 160.
    The court erred in submitting to the jury the question as to whether there was an increase of risk by the erection of the new building by the assured. The court thought that the mere existence of the little carpenter shop back of the building insured altered the case; assuming that the company had taken the risk of the proximity of this shop to the building insured, and that its removal had lessened the risk assumed by the company when it issued its policy, and, therefore, that such decrease of risk might properly be set off against the increase of risk caused by the erection of the new house. This is a novel and very dangerous doctrine.

      Joseph L. Walsh, M. M. L’ Velle and I). B. Green, for defendant.
    It was admitted that the erection of the new building had increased the risk. But it was shown, on the other hand, that at the time the property was insured, a carpenter shop stood upon the lot directly in the rear of the house, and in very close proximity to it; that it was. fourteen feet in width by from twenty to twenty-four feet in depth, and from eight to twelve feet in height; that after the insurance, this shop had been removed to the other side of the adjoining lot (next to Hildebrand’s), some twenty feet away, and placed nearer the rear end of the lot, and that it had been changed from a carpenter shop (admittedly hazardous,) into a dwelling-house. It was very evident that the risk of fire had been very much diminished by its removal and its change into a dwelling-house. This left it as a fair question of fact for the jury to decide whether the risk was as much lessened by the removal as it was increased by the erection of the new building.
    An insurance company will not be allowed to take advantage of the mistakes or omissions of its agents, notwithstanding the rule that all parol statements and negotiations are merged in the written compact: Beal v. Park Fire Ins. Co., 16 Wis. 241.
    When an agent, as well acquainted with the premises as the assured himself, fills up an application,and has the assured sign it, the assured is not responsible for any misrepresentations in such survey: Roth v. City Ins. Co., 6 McLean (C. C., U. S.,) 324; Howard Fire Ins. Co. v. Bruner, 11 Harris 50 ; Michael v. Mut. Ins. Co., 10 La. Au. 737.
    Where an application was unintentionally defective, on a point well known to the agent, the company and not the insured should be the sufferers : Campbell v. Merchants’ and Farmers’ Mut. Fire Ins. Co., 37 N. H. 35 ; Plumb v. Cattaraugus County Ins. Co., 18 N. Y. 392; Sarsfieldv. Met. Ins. Co., 61 Barb. 479.
   Mr. Justice Trunkey

delivered the opinion of the court, May 5th 1879.

Thomas Horan, by accepting the policy, became a member of the Pottsville Mutual Fire Insurance Company. In his application, he warranted his representations of facts and circumstances. Among the statements is, the adjoining buildings, within eight rods, are used for the purpose of private dwellings. The survey, on the back of the application, shows a vacant lot, twenty-six feet wide, between the property to be insured and Hildebrand’s house. No mention is made in application or survey of the small building, called a carpenter shop. That Horan knew the contents of the application when he signed it, seems to be conceded; and there is no pretence of fraud or mistake, unless against the company, and in which the applicant participated. They talked about the shop, and of erecting a house on the vacant lot, and wittingly omitted both in giving the situation and surroundings. The applicant knew as well as the agent knew, that the company acted on a warranty that no building, save dwelling-houses, was Avithin eight rods of the one to be insured, and that the lot on the east side Avas vacant. If they were honest, the shop Avas omitted in the description, because it was to be removed; if the applicant colluded with the agent in making a false statement, he shall not profit by the fraud: Smith v. Ins. Co., 12 Harris 320.

In the printed argument for defendant in error, it is said that, at the time of insurance, a carpenter’s shop stood directly in rear of the house, in very close proximity to it, and admittedly hazardous. If that be so, it was a breach of the assured’s Avarranty, and, by its express terms, the policy was void : Smith v. Ins. Co., supra. In such case defendants’ tAvelfth point ought to have been affirmed. But the evidence of Davidson is, that it had ceased to be used as a shop, before the insurance, and Avas to be removed and used for a dwelling; it was soon after removed.

It is also said that “ it was admitted that the erection of the new building increased the risk;” that fact was conclusively proved. Thereupon, it is urged that the risk of fire had been very much' diminished, by removal of the shop and its change to a dAvellinghouse, and that it was a question for the jury, Avhether the risk had not been as much lessened by the removal as it was increased by the erection of the neAV building. This view was adopted by the court, and so much of the charge as relates thereto, constitutes the eleventh assignment of error. Some respect should be paid to a contract of insurance. Here, the assured warranted that he gave a “ full.and true exposition of all the circumstances in regard to the condition, situation, value and risk of the property;” and the assurer issued the policy on condition that “ if, after insurance, the risk shall be increased by any means Avhatsoever * * * and the assured shall' neglect to notify the company of said increased risk,” such insurance shall be void. The risk was increased by act of the assured himself; the court instructed the jury that notice Avas not given to the company. This instruction is not here for review, and the argument respecting it cannot be considered. How, then, coulu there be a recovery on the policy ? Is it according to the spirit of the contract, to say nothing of its letter, to set up the removal of a shop which he had warranted.was not there ? “ The purpose of requiring a warranty is to dispense with inquiry and cast entirely upon the assured the obligation that the facts shall be as represented. Compliance with his warranty is a condition precedent to any recovery upon the contract. It is, therefore, that the materiality of the thing warranted is of no consequence. The assured, by his warranty, engages that, whatever the condition of things when he makes his application, the facts shall be as warranted when the policy attaches.” Per Strong, J., Ins. Co. v. Arthur, 6 Casey 315. It would be hard to hold Horan to the letter of his application, that no shop was-near the house to be insured ; he having promptly removed it, justice demands that the warranty be treated as unbroken when the policy attached; it is unconscionable to use its removal as a diminishing of risk and set-off, against the increased risk from his violation of the conditions of insurance. The company did not undertake to insure the house on the basis that it was “ in very close proximity to” a carpenter shop, and the assured must accept this fact, or the consequences of a broken warranty.

In another view, the contract was made in reference to.the situation and surroundings of the property. For a price paid by one party the other agreed to carry the risk. They did not agree that the assured may build on the adjacent Vacant lot, making an unbroken line of buildings, and remove' a back building. It might be quite easy to satisfy most persons that the removal lessened, as much as the new building increased, the risk, but it would be hard to satisfy anybody that, after such change, the risk was the same as contracted for. The contract provides.- for notice, assent, or cancellation, in case of increase of risk. After the change, the assurer, if notified, might have been willing to continue the insurance, with or without, additional consideration, or might have terminated the policy and refunded a ratable portion of the premium. It is not for the assured alone to change the contract, and the courts cannot do it for him. A setting up of some real- or fancied lessening of risk, as a set-off against the increased risk by building up the vacant lot, could not have been apprehended when the contract was executed. A company which would submit-to- such imposition would soon be over-burdened, and its ■ policies become worthless to their holders.

The proofs of loss are not set out in the paper-book, and the eighth and ninth assignments cannot be considered. The court having instructed the jury that notice was not given to the company, no other assignments require remark.'

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Continental National Bank versus Draper.
    Under the Act of March 16th 1869, entitled “ An act relative to fraudulent debtors,” real estate cannot be attached.
    March 17th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunket and Sterrett, JJ.
    Error to the Court of Common Pleas of Schuylkill county: Of January Term 1878, No. 15.
    On the 2d of February 1877, the Continental Bank, of Boston, by Charles F. Smith, its cashier, made affidavit, setting forth that John W. Draper was indebted to them in a sum exceeding $100, upon promissory notes, aggregating $9700, and that said Draper had assigned and disposed of his property, namely, his dwelling-house in the borough of Pottsville, with intent to defraud his creditors. They, at the same time, filed their bond, in pursuance of the Act of Assembly of March 16th 1869: Purd. Dig. 53, pi. 71, and' a! prcBcipe for a writ of attachment in conformity with said act. The attachment issued, and on the 9th of February 1877, the sheriff attached a lot and dwelling-house in the borough of Pottsville, and returned the writ non est inventus as to John W. Draper. On the 19th of March 1877, the defendant moved to have the writ quashed for matters apparent upon the record, and, after argument, upon the 3d of September 1877, the opinion of the court was filed, quashing the writ, on the ground that the Act of 1869 did not authorize an attachment of real estate.
    The court, Walker, J., in the opinion said:
    “ In this ease a writ of attachment under the Act of 1869, was issued upon a judgment of $9331.89, originally obtained in Massachusetts by the plaintiff against the defendant, and entered up in the Court of Common Pleas of Schuylkill county, to March Term 1877. A house and lot of ground in the borough of Pottsville were attached, and this rule upon the part of the defendant is to quash said writ.
    “ The writ was issued under the provisions of the Act of 1869, and the defendant’s real estate is attached. Can this be done, or is the act confined to personal property solely ? We do not deem it necessary to discuss this question, as all the law judges of this court have given the subject a full and careful investigation, and have unanimously come to the conclusion that the provisions of the act were intended solely to apply to personal property and not to real property. Rule made absolute.”
    The bank took this writ, assigning this action for error.

      Fergus Gr. Farquhar and Samuel Dickson, for plaintiff in error.
    — The court below construed the word “property ” as it is found in the several sections of the Act of 1869, to mean only personal property ; in other words, they have added to the Act of Assembly in evéry place where the same speaks of' “ property ” the word “personal.” Is such an interpretation of the act consonant either with the spirit of the act itself or with the remedy which it proposes to give for the protection of creditors ¡against fraudulent debtors ? In the absence of any positive limitation of the right of attachment, real estate may as well be attached as personalty: Drake on Attachments, sect. 233; Isham v. Downer] -8 'Conn. 282. There was nothing in the Act of 1705 providing for,the sale of land, but this court held rhat land was to be treated as a mere chattel for the payment of debts: Schacklett and' Grlydé’s Appeal, 2 Harris 329 ; Ludlow v. Bingham, 4 Dali. 44 ; McOlanachan v. McCarty, 1 Id. 376. If the practice was right under the Act of 1705, where there is no mention of land,'why’is it not in this ease, where the word “ property” is used, which includes everything, and embraces both realty and personalty. .
    If this limitation of the word “property” be admitted as a proper construction, then the remedy provided is .a very imperfect one. It would permit a man owning real estate to commit any fraud by disposing of his real estate, and leave his creditors without a sufficient and prompt remedy.
    It will also be seen that the Act of Assembly of 16th Mhrch 1869, speaks of a “ lien” acquired. This word used in this connection must certainly have been used in contemplation of an attachment of real estate, for where personalty is attached, the property itself is taken into the custody of the court by its officer, and under such circumstances the word“lien,” in legal phraseology, has little meaning. ■ ■„

      D. O. Henning and James JRgon, for. defendant in error.
    The remedy provided, is to give the attaching creditor a lien for his claim upon such property as may be-removed out of the jurisdiction of the court, or be concealed, or which may be assigned, disposed of, or removed with intent to defraud creditors. Now, as no provision is made in the act for the seizure of real estate, in express terms, to include it by necessary implication, it must be capable of being disposed of by the debtor, in one or other of the ways provided in the Act of Assembly, to the injury of creditor, and in such manner as leaves him without a remedy.
    As real estate is capable of neither removal nor concealment, the act of the debtor, to give jurisdiction, must.be to assign or dispose of it. As personal property is movable, and may attend the owner wherever he may go, and title thereto may so readily be acquired and lost by simple delivery of possession, and the goods may not be forthcoming after litigation, it is necessary that a speedy remedy be given the creditor, and to be effectual he must make a manual seizure of the goods. But it is not so with real estate; if assigned or disposed of with intent to.defraud creditors, it can be followed by the creditors into the hands of any-person in whose possession it may be found; and the proceedings under the writ of foreign attachment would be ample notice to third parties.
    Then, too, the act makes no provision for the seizure of real estate under a writ issued in pursuance thereof; nor does it make any provision by which third parties may have notice of the lien of the attachment. ,
   Mr. Justice Gordon

delivered the opinion of the court, May 7th 1879.

We think with the learned judge of the court below, that the Attachment Act of March 17th 1869 (Br. Purd. 53, pi. 71), was not intended to embrace real property. An examination of the act will make this obvious. In the first place, this writ is issuable upon the affidavit of the creditor that the debtor or debtors “ is about to remove his, her or their property out of the jurisdiction of the court on which the attachment is apjjlied for, with the intent to defraud his, her or their creditors; or that said party defendant has property, rights in action, or interest in any public or corporate stock, money or evidences of debt, which he, she or they fraudulently conceal; or that the said party defendant has, or have assigned, disposed of, or removed; or is about to assign, dispose of or remove any such property, money, rights in action, interest in public or corporate stock, or evidences of debt, with the intent to defraud his, her or their creditors.” In all this there is clearly no intent to embrace realty; the “property” spoken of, is such as may be removed or concealed, and hence; necessarily embraces only personalty. Real estate, not being susceptible of removal, and its conveyance in fraud of creditors being otherwise amply provided for, the legislature, in this act, made no provision against its disposition.

Turning to the second and third sections, which provide for the service and return of the process, we find that the sheriff is directed to attach “so much of the money, stocks, rights in action, evidences of debt, or other property of said party defendant, not' exempt from sale upon execution, as will be sufficient to pay the debt demanded, with costs.” Now it may be conceded that the words “ other property” might be made to include land, and we might agree that such was the legislative intent, were it not that several difficulties' oppose themselves to a construction of this kind. First, we have already seen that the statute in the preceding section, has attached the idea of mobility to other property.” Second, there are no provisions or directions for the attachment of real estate, as in the foreign and domestic attachment acts; and third, the language of the act precludes such a conclusion. An inventory of the attached property is to be made and a copy thereof left with the defendant if he can be found within the county; but if he does not reside in the county, then, such copy is to be left “ with the person in whose possession or care said property may be, or in whose hands it may be attached.” We need scarcely say that the above-stated language can properly be applied only to personalty. But again, “ it shall be the duty of the officer, serving such attachment, to take the property attached into his possession, when the same is capable of manual seizure, and when not the same shall be bound by such attachment, in the hands or possession of such party, from whom it is due or owing, or whose duty it is to account for the same.” This part of the act informs us definitely what may be attached. In the first place, it is something that the officer may take into his own possession by manual seizure; and, in the second place, if it is not capable of such seizure, then, it is something of a kind that may be due or owing or • that is to be accounted for. The first embraces personal goods and chattels; the second, debts, obligations, stocks, &c., but by no stretch of the imagination can this language be made to embrace real estate, since of it there can be no manual seizure, neither is it a thing which may be due or owing or to be accounted for in the meaning of the act.

But, further, the defendant, may retain the property, thus attached, by giving bond for its surrender, in as good condition as •when attached, “ to any officer having an execution against said defendant on any judgment rendered in said attachment in favor of the plaintiff.” Language of this kind, we know, is applicable only to personal property; applied to real estate it is meaningless.

If, indeed, we were to deal with this act as Chief Justice Gibson tells us the Act of 1705 was dealt with, we might make it cover realty. He says, (Schacklett and Glyde’s Appeal, 2 Harris 326), “it is an undoubted fact that the framers of the Act of 1705 intended to exempt land from attachment.; but as there was no reason for an exemption, as land was liable to execution as a chattel, and as the language of the act was not imperative, though its details were adapted to cases of garnishment, the courts made no distinction. Nor ought they to have done otherwise; at least they did not.” In these days, however, this court can hardly make so free with a statute as to inject into it what may be thought to be an improvement, the clear intention of the law-making power to the contrary notwithstanding. '

The order of the court below quashing the attachment is affirmed.


author: Chief Justice Sharswood

text:
    Wynkoop versus Cooch.
    1. The Act of May 13th 1871, entitled “An act to obtain possession of real estate by purchasers at coroners’, sheriffs’ and Orphans’ Court sales within the county of Schuylkill,” is not in derogation of the right of trial by jury, and is constitutional.
    2. In a case under the provisions of this act the possessor being an unjust one, he has no common-law right to notice to quit; the legislature may therefore constitutionally enact that notice may be provided in any mode, and before any tribunal.
    3. An Act of Assembly will not be declared void because some portions thereof are unconstitutional. It may well be that one or more provisions of a statute are unconstitutional and the other provisions not so.
    March 18th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Schuylkill county: Of January Term 1879, No. 38.
    The plaintiff below, Thomas Cooch, filed in court a petition setting forth that he was the purchaser at sheriff’s sale of the property of the defendants below, John E. Wynkoop and wife, that he had given three months’ notice requiring them to surrender possession, and that they had failed to do so, and praying the court for a rule to show cause why a writ of possession should not be awarded, as provided by Act of May 13th 1871 (Pamph. L. 820), relating to the county of Schuylkill. An affidavit of a constable accompanied this petition, averring that he had served the notice as set forth in the petition.
    To this petition and rule exceptions were filed, setting forth, among other reasons why possession should not be awarded, that the Act of May 13th 1871 was unconstitutional. The exceptions were overruled and defendants directed to answer. In the answer it was again claimed, among other things, that the act under which the proceedings were had, was unconstitutional. The answer was deemed insufficient by the court, and a writ of possession was awarded.
    This action was assigned for error by defendants who took this writ.

      D. C. Henning, Hughes Farquhar and B. W. Bumming, for plaintiffs in error.
    The Act of 1871 is unconstitutional, inasmuch as the right of trial by jury is entirely ignored in said act. By the 7th section the duty is devolved on the court or judge in case of a finding for the petitioner “ to assess such damages as they or he shall think right against the defendant person or persons in possession for the unjust detention of the premises.” As the assessment -of the damages is discretionary no error in the measure adopted could be successfully assigned in the court above, and they would be unable to review or correct the error in case of excessive damages. Questions of fact which must necessarily enter into the assessment of damages are thus to he decided by the court below, without the consent of the defendants. In this manner the appropriate function of the jury is transferred to the court in palpable violation of the constitutional principle that “the trial by jury shall be as heretofore,” and the right thereof remain inviolate: Art. 9, sec. 6, Constitution. .

      J. Lineaweaver and William B. Wells, ,fo.r defendant in error.
    —The remedy provided in the 7th section of the Act of 1871, is in the nature of a fine, for a tortious act, or wrongful holding over, and is a new statutory remedy, not known to the common law, to which our constitutional right of trial by jury alone applies: Byers v. Davis, 6 Wright 89; Ligat v. Commonwealth, 7 Harris 456: Van Swartow v. Commonwealth, 12 Id. 131; Rhines v. Clark, 1 P. F. Smith 96. If this court should be of opinion that the 7th section of the act, which is the only section that confers power upon the court to assess damages,- is unconstitutional, it would not affect the case now before the court, as no damages were asked for, or assessed by the judges below, and as it cannot be successfully contended, that the whole of a- beneficial act is made unconstitutional because one section, which may be separated from the rest of the act, may be declared void: Lea v. Bumm, 2 Norris 23.
   Chief Justice Sharswood

delivered the' opinion of the court, March 31st 1879.

The main contention of the plaintiffs in -error is that the Act of May 13th 1871, Pamph. L. 820, entitled “ An act to obtain possession of real estate by purchasers at coroners’, sheriffs’ and Orphans’ Court sales within the county of Schuylkill,” is unconstitutional, being in derogation of the righs of trial by jury secured in the Bill of Rights, by the declaration, “ Trial by jury shall be as heretofore, and the right thereof remain inviolate.” The object of this provision was to preserve the'jury as a tribunal for the decision of all questions of law and fact in criminal trials; and of all questions of fact in-civil causes. Such it-had been theretofore; and it was ordained by the people that such it should continue to be thereafter inviolate. Thus it was determined by this court that an Act of Assembly authorizing the court to enter a compulsory nonsuit — in a case where on all the facts given in evidence there was no legal liability in the defendant was constitutional: Munn v. Pittsburgh, 4 Wright 364. “The complaint,” says Mr. Justice Strong, “ that the constitutional right of trial by jury has been violated is made'without due consideration. The province of a jury has always been to determine facts. What is the law applicable to those facts has always been a question for the court. In ordering the nonsuit, the court conceded all the facts which the jury could have found, and simply declared that under the law as applicable to them there was no liability on the part of the defendant.” This principle is so obvious that it needs no elaborate vindiqation. Was there any question of fact in an action of ejectment brought by a purchaser at sheriff’s sale against the defendant in the original judgment, or any person claiming title under him by deed or conveyance subsequent to the judgment, which by this act is submitted to the decision of the court ? We put outrfjf the case the seventh section, which provides for an assessment of damages against the defendant, person or persons in possession, because there was no such assessment in this case; for it may well be that one or more provisions in a statute are unconstitutional, and the other provisions not so. We look in vain through this act for any clause or section which violates the rule as laid down in Munn v. Pittsburgh. As to the defendant in the judgment or other persQn claiming under him subsequent to the judgment, the judgment and sheriff’s deed duly acknowledged are' conclusive, and matters of law exclusively for the court. So it has been uniformly held from Culbertson’s Lessee v. Martin, 2 Yeates 443, to Drake v. Drown, 18 P. F. Smith 223. “ A purchaser at sheriff’s sale,” said Mr. Justice Agnew, “is not bound to show more than his deed and-the proceedings under which it was made, to recover possession from the defendant in the execution.” By the tenth, eleventh, twelfth and thirteenth sections of the act under consideration, it is provided, that “if the person or persons in possession shall make oath or affirmation, that he has not come into possession, and does not claim under the defendant in the execution, but in his own right, or that he has come into possession under title derived to him from the said defendant, before the judgment under which the execution and sale took place, and shall become bound in a recognisance, with one or more sufficient sureties, in the manner hereinafter provided, the said court or judge shall forbear to give the judgment aforesaid.” By the eleventh section a summons is directed to issue to such other person under whom the possessor claims; and on his making oath or affirmation to his title and giving recognisance, the court or judge shall forbear to enter judgment. The form of the oath and the recognisance are given; and the parties are then referred to a common-law action of ejectment. It is unnecessary to show, either by argument or decided cases, that there is nothing in all this which derogates from the right of trial by jury. The jurisdiction of justices of the peace, the compulsory arbitration law where the right of appeal has been encumbered with similar provisions, have uniformly been held to be constitutional: Emerick v. Harris, 1 Binn. 416. As to the proof of notice to the person in possession being submitted to the court, it is sufficient to remark that there is no common-law right to notice in such a case. The unjust possessor of land, which the defendant below as against the plaintiff was, can be turned out of possession by real action or ejectment without any notice. To provide for notice in the case in hand was a mere act of grace by the legislature; and, as they need not have provided for it at all, they can constitutionally enact that it shall be proved in any mode and before any tribunal. The purpose of the constitution undoubtedly was to preserve the jury trial wherever the common law gave it, and in all other cases to let the legislature and the people do as their wisdom and experience might dictate: Van Swartow v. Commonwealth, 12 Harris 131; Borough of Dunmore’s Appeal, 2 P. F. Smith 374; Paschall Street, 31, Id. 118.

Judgment affirmed.


author: Mr. Justice Mercur,

text:
    Gay versus Waltman.
    1. In Pennsylvania one partner can bind his co-partners by submission to arbitration by agreement, not under seal, in any -partnership matter.
    2. A parol award made on a parol submission is a valid award. The law requires no particular form to establish a valid submission. When it is by parol, the fact must be established to the satisfaction of a jury by a preponderance of testimony. - ■ .
    3. V. brought an action of debt on an award of arbitration against J. and 0., as partners. C., in an affidavit of defence, denied that he was the partner of J. as to the subject-matter of the submission, and afterwards so pleaded. J. and O. also both pleaded the general issue, At the trial defendants asked leave to withdraw the plea of no partnership, which the court permitted them to do, stating that the eifect of the withdrawal'of the plea was to admit the partnership, to which ruling no exception was taken. Held, that thus amended the pleadings admitted the partnership.
    March 18th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and S'terrett, JJ.
    Error to the Court of Common Pleas of Wyoming county: Of January Term 1879, No. 200.
    Debt, on an award of arbitrators, by A. Waltman against James Gay and Calvin Gay, partners, doing business as James & Calvin Gay.
    Calvin Gay filed an affidavit of defence, wherein he averred that as a partner of James Gay he had never agreed to make a submission to arbitrators, and that, as such partner, he was not indebted to plaintiff. He subsequently pleaded that he was not a partner in this case with James Gay, and pleaded generally nil debet, payment with leave, &c., and also, with James Gay, put in the plea of “ no award.” At the trial the plaintiff was proceeding to give evidence of the partnership, when the counsel for the defendants asked leave to withdraw the plea of no partnership, saying, “ Our affidavit does not deny the partnership, but only the partnership as to this transaction.” The court permitted the plea to be withdrawn, remarking “ Withdrawing that plea we regard as withdrawing the matter of partnership entirely from the case, and leaving it (as under the rules of court) as though there was no affidavit to the contrary;” and added, in the hearing of counsel of defendant, “ We now understand that the burden of proving the partnership is taken from you (the plaintiff) and that you have only now to prove the submission and award.” The court, in pursuance of this declaration, subsequently excluded offers of testimony by the plaintiff, tending to prove the partnership. No exceptions to these rulings were taken by defendants.
    The plaintiff testified that he had leased a half interest in a sawmill to the defendants ; that a dispute arose, and, being unable to settle what plaintiff' was to receive for the use of the mill, James Gay and witness agreed to refer the matter to three arbitrators; that when the arbitrators met the two Gays and plaintiff appeared before them; that it was then agreed that the only question that should be submitted to the arbitrators was, what plaintiff should receive from James and Calvin Gay, as partners, for the use of the mill; that the arbitrators heard witness’s statement as to the use of the mill, and that of one of the Gays as to the use by the Gays, and announced the award verbally, so far as witness knew ; that he did not see any writing present; that they awarded witness for the use of the mill $1040 and some cents. The defendants admitted that there had been a submission and award, but testified that the submission was as to matters in dispute between plaintiff and James Gay, and was made by the latter for himself alone; that Calvin Gay had no interest in the matters in dispute, did not authorize the submission, and was not present at the meeting of the arbitrators. The testimony of the arbitrators was not positive either as to the subject-matter of the submission, or whether the award was. against one or both Gays, or whether both were present at the meeting. The award had been made several years before the trial and no memorandum thereof seemed to have been preserved.
    The defendants submitted the following points, all of which the court refused:
    . 1. There is no evidence in this case from which you can reasonably conclude that the defendants submitted all matters then in controversy between them and the plaintiff to the arbitration of three persons, mutually chosen and agreed upon by the said plaintiff and defendants, nor that the arbitrators chosen made an award in favor of the plaintiff and against the defendants; and that your verdict should be for the defendants.
    2. One partner cannot bind another by his submission to arbitration even of matters arising out of the business of the firm.
    3. The pleadings do not admit the partnership.
    In the general charge the court, Ingham, P. J., inter alia, said: “As the case stands the existence of the partnership in relation to the subject-matter of the action must be regarged as admitted. * * * ££ These arbitraments may be either in'writing, and the award in writing, or they may be simply by parol agreement, and the award. may be by parol. Such must, have been the submission and award, if any, in this case, the whole matter being by parol; and you therefore .depend entirely upon the evidence of the witnesses in making up your verdict. That is; however, sufficient, if the evidence is sufficiently clear to enable you to satisfy your minds that there was submission, what was submitted, and what was the award of the arbitrators.”
    Verdict for plaintiff. Defendant took this writ and assigned for error the answers to the above points, and the portion of the charge noted. ■ “ •

      Felix Ansart, for plaintiffs in error.
    The submission should be clearly prove’d; who were the parties to it; what was the award; in whose favor and against whom. Where a case is submitted to a jury upon clearly insufficient evidence, such as no court ought to sustain a verdict upon, it should be reversed: Cauffman et al. v. Long, 1 Norris 72.
    Ooe partner cannot bind his co-partner by a submission to arbitration. There must be evidence, written or otherwise, of an authority conferred: Collyer on Partnership, sect. 439, notes 2 and 3; 3 Kent’s Com., sect. 49; Story on Partnership, sect. 114; American Leading Oases, 5th ed.,“p. 452,'notes 5 and 6.
    In the case of Taylor et al. v. Coryell et al., 12 S. & K..243, it is decided “ that one partner may fairly enter into an agreement to refer, by writing, not' under seal, any partnership matter, and this would bind the whole firm.” This case only extends to an agreement in writing, and should not be extended to sustain a verbal award on a parol submission. In the case of Harper v. Fox, 7 W. & S. 143, we have the dictum of C. J. Gibson, as follows: “ A partner has power to dispose of the joint effects by his separate act; and that he may not bind the firm by submission to arbitration, or confession of judgment, is because it would bind the persons and separate estates of the members and thus transcend the limits of partnership authority.”
    The remarks of counsel for plaintiff and their offer to prove the partnership, show clearly that they did not consider that the defendant had admitted the partnership or that it was admitted by the pleadings.

      W. F. & C. A. Idttle and Sittser Harding, for defendant in error.
    Under the ruling in Taylor et al. v. Coryell, supra-, one partner may bind his co-partner, by an agreement not under seal, to refer any partnership matter, and this decision extends to all agreements not under seal. ' With what reason can it be maintained that one partner may pay a firm debt or agree to the amount thereof and that he cannot refer to others the question of amount before he shall pay. The defendants were warned of the effect of their withdrawal of their plea of no partnership and they took no exception to the ruling of the court. There is no rule of law which requires a submission to be in writing: 2 Tr. & H. Pract. 752, 3d ed. by Wharton; McManus v. McCulloch, 6 Watts 357 ; Barnum v. Bachman, 5 Luz. Leg. Reg. 145; Hillard’s American Law, vol. 2, p. 237, and cases cited; Titus v. Scantling, 4 Blackf. 89; Bouv. Inst., vol. 3, p. 47.
   Mr. Justice Mercur,

delivered the opinion of the court, May 5th 1879.

This was an action on a parol award of arbitrators. The submission was by parol, but whether made by one or both the copartners was a question in controversy.

The general rule in England and in many of our sister states, is that one partner cannot bind his copartner by submission to arbitration. In Pennsylvania it is held that he may so bind his copartner, by agreement not under seal, in any partnership matter. The question was carefully considered in Taylor et al. v. Coryell et al., 12 S. & R. 243. In that case the evidence did not show either consent or dissent on the part of the copartner. The able opinion of Mr. Justice Duncan well states many of the practical inconveniences that would result from a denial of that power. It cannot bo done by instrument under seal because the authority to execute a deed must be by deed, That, however, applies to the manner of binding a copartner, and not to the question of implied agency. When the submission is confined to cases for settling and determining claims arising in the partnership business, it is difficult to assign any substantial reason for denying the power of one partner in good faith, to bind his copartner, by a parol submission. The same doctrine is held in Southard v. Steele, 3 Monroe R. 433. The incidental dictum of Mr. Chief Justice Gibson in Harper v. Fox, 7 W. & S. 143, in no wise impairs the authority of Taylor v. Coryell.

The subject-matter of submission from which the present action arises, was to determine the sum justly due from the plaintiffs in error, fo the defendant for their use of a saw-mill, in which he owned the undivided half. If they had used the mill in manufacturing their lumber, it was clearly within the scope of the partnership business for one partner to ascertain the sum due and pay the same. Failing to agree with the owner of the mill, one partner had the right to submit the question by parol to arbitrators to decide, and the firm was bound by the award made in pursuance of the submission. A parol award made on a parol submission is a valid award: McManus v. McCulloch, 6 Watts 357.

It is contended that conceding the power, qf one partner to hind his copartner by a submission, yet the evidence of an agreement in this case was insufficient to leave to the jury. We think the evidence of the defendant in error was amply, sufficient to justify the court in submitting the question to the jury. ■ He testified in substance that he leased his half of the mill to James and Calvin Gay; that he was unable to settle with them as to the ‘sum he was entitled to receive therefor; that he and they submitted it to three men named; that at first it was also agreed that the arbitrators should determine the differences between him and' James Gay; but while the parties were present before the arbitrators, talking the matters over, the submission was so changed, as to leave to them to decide what he should have for the use of the mill as between him and James and Calvin Gay. After stating where the arbitrators met, he proceeded to say, “ They heard my statements or allegations as to the use of the mill, and Mr. Gay’s accounts and statements as to the use of the mill by them, and announced the award, verbally, as far as I know. I did not see any writing present. They awarded me for the use of the mill from' these parties, $1040 and some cents — fifty-nine cents, I think.” The fact that some other evidence was in conflict with this, or threw doubt on the correctness of Waltman’s evidence, was insufficient to withdraw the case from the jury. The law requires no particular form to establish a valid submission. When it is by parol, the fact must be established to the satisfaction of a jury by a preponderance of testimony: McManus v. McCulloch, supra. The learned judge said'to the jury that they must “ depend entirely .on the evidence of the witnesses in making up your verdict. That is, however, sufficient, if the evidence is sufficiently clear to enable you to satisfy your minds that there was submission, what was submitted, and what was the award of the arbitrators.” In view of the manner in which the case was tried and went to the jury, the plaintiff has no just cause of complaint with this direction.

The remaining question relates to the proof of partnership. The rule of court declares that in actions by or against partners, it is not necessary on the trial to- prove -the partnership; but it shall be taken to be admitted as alleged on the record, unless one or more of the defendants shall make and file an affidavit denying the existence of the partnership as alleged. In this case Calvin Gay filed an affidavit denying that he was a partner, and also pleaded that he was not a partner in the case with James Gay. After the jury was sworn and the- plaintiff below was proceeding to give evidence to establish the partnership, the counsel for the defendant below asked leave to withdraw the plea of no partnership, which the court permitted to be doné; but at the same time stated in the hearing of their counsel that this must be regarded as an admission of the partnership as fully as .if no affidavit had been filed, and thereupon excluded the plaintiff below from giving further testimony of that fact. To this ruling of the court the counsel for plaintiff' in error took no exception and made no objection. They assented to it, thereby. influencing the subsequent action of the court, and of the opposite party. Nor is the effect of it changed by the fact that the notes of the stenographer show that the counsel for defendants below then remarked, “Our affidavit does not deny the partnership; but only the partnership as to this transaction.” The existence of the partnership had been put at issue only as to the transaction in question. It was to that issue only, that the affidavit and plea applied. Having been withdrawn under the circumstances stated, the court committed no error in saying to the jury in the charge, “ As the case now stands, the existence of the partnership in relation to the subject-matter of the action must be regarded as admitted.”

We discover no error in the record.

Judgment affirmed.


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    Pennsylvania and New York Canal and Railroad Company versus Lacey.
    1. The building of plaintiff was about ninety feet from a railroad and was used for the storage of coal arid straw. Some straw scattered about the building, caught fire from sparks from a passing locomotive, and the fire thus ignited was carried by a high wind to the storehouse which was destroyed. Held, that it was properly left to the jury to determine whether the negligence of the railroad company, in allowing the escape of large sparks from the locomotive, was the remote or proximate cause of the injury.
    2. Pennsylvania Railroad Co. v. Hope, 30 P. P. Smith 373, followed.
    March 18th 1879.
    Before Siiarsw.ood, C. J., Mercur, Gordon, Paxson, Woodward, Trunkey and Sterrett, JJ.
    Error to the Court of Common Pleas of Wyoming county: Of January Term 1878, No. 245.
    Case by George S. Lacey and Henry R. Lacey, partners, doing business as G. S. & H. R. Lacey, against the Pennsylvania and New York Canal and Railroad Company, for the burning of the storehouse of the plaintiffs, which they alleged resulted from the negligent management of one of the locomotives of defendant.
    It appeared that the building of plaintiff's, which was about ninety feet from the railroad, was used for the storage of coal and straw. Shortly before the discovery of the fire, a locomotive had passed, which was observed by several witnesses to be throwing out unusually large cinders. Very soon thereafter, some straw on the land of plaintiffs was discovered to be on fire, and before it could be extinguished, the fire, aided by a strong wind, reached the storehouse, and it was destroyed.

      One witness testified: “ The wind -blew very strong; very soon I saw the fire burning. When I 'first -saw it, the Maze was not bigger than a bushel basket. I took some hands right off and hastened to put it out. I thought I could easily enough, but the wind carried it right into the front of. the she’d'; there was a good deal of straw scattered around.”
    The fire started in the straw, between fifteen and twenty feet from the building. It did not appear-that there was more straw scattered about than would ordinarily - collect from the business transacted in the building.
    It was shown by the defendant' that improved spark-arresters wére in general use on the locomotives of the road, but it did not appear from what particular locomotive this fire originated.
    The defendants, inter alia, submitted' the following point, to which is appended the answer of the court, Ingham, P. J.:
    That the jury, in determining accountability in this case, must consider the immediate and not the remote cause of the fire; that if the fire communicated from the locomotive first to the straw and from thence to the building of the plaintiffs, the engine was the remote and not the immediate cause, and the defendant would not be liable.
    Ans. “ This asks us to charge you that if you believe from the evidence that the fire commenced in the straw, and that from thence it ran to the building and the building was thereby consumed, the company would not be liable for damages, even if it were proven to your satisfaction that they were running their engines in a negligent manner. We decline to charge you that this is the law.” .
    In the genera] charge, the court, inter alia, said :
    “ It seems to me, therefore, a question.to be left to you, whether the fire did originate directly from the neglect of running the engine; it is for you, I say, to determine this under the evidence. If you are satisfied that it did originate from the locomotive, and was communicated directly to the straw and then to the building, you would be at liberty to find that the company were guilty of neglect, and in favor of the plaintiffs.”
    The verdict was for plaintiffs for $378.30. After judgment the defendant took this writ, assigning for error the answer to the point and the portion of the charge noted.

      Felix Ansart, for plaintiff in error.
    The neglect of the defendant was the remote cause. There was an intermediate agent, the straw. Except for the strong wind, the fire in the straw would have been extinguished. This case is governed by the principles laid down in Pennsylvania Railroad Co. v. Kerr, 12 P. F. Smith 353.
    Where there is no dispute about the facts, the court should decide the question of remote or proximate cause.

      W. H. G. A. Little and Sittser Harding, for defendants in error.
    It was properly left to the jury to determine what was the proximate cause: Pennsylvania Railroad Co. v. Hope, 30 P. E. Smith 378; Pennsylvania Railroad Co. v. Hendrickson, Id. 182; Pennsylvania Railroad Co. v. Stranahan, 2 W. N. C. 215.
   The judgment of the Supreme Court was entered, March 31st 1879,

Per Curiam.

This case is ruled by the Pennsylvania Railroad Co. v. Hope, 30 P. F. Smith 373. It is a much stronger case than that, for the application of the rule there laid down. The building burned was a storehouse, and the straw fired was a natural incident of the business carried on in the building, and the communication of fire therefore direct to the building without any intermediate cause. Judgment affirmed.’