author: Mr. Justice Mercur

text:
    Barr and Daugherty versus Boyles.
    1. It seems that in a suit against plaintiffs in an execution for seizing and selling property they must show the judgment on which the execution issued to justify the taking.
    2. '1'he rule is held differently, however, where the suit is against a sheriff or constable, who are ministerial officers. When an execution, regular in form, and having nothing on its face indicating a want of jurisdiction, is directed to a constable and placed in his hands, it is sufficient to protect him in duly executing it according to its commands.
    3. The apparent regularity and presumed jurisdiction, as evidenced by the execution, not only protect such officer in its due execution, but make it his duty to proceed to execute the writ.
    4. Whether a debtor assigned his property with intent to defraud his creditors is for the jury.
    5. When it is for the jury to say whether the sale of personal property and the delivery and possession taken thereafter were such as would make the sale valid as against subsequent judgment creditors.
    October 25th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Armstrong county : Of October and November Term 1880, No. 130.
    Trespass de bonis asportatis by Joseph H. Boyles against William Barr and Robert Daugherty, for levying upon and selling, as constables, the machinery and fixtures of an oil well as the property of W. P. Floyd, which'property plaintiff claimed he had purchased from said Floyd.
    At the trial it appeared that Floyd was the lessee of a farm upon which was an oil well with certain machinery and fixtures. Under the terms of the lease Floyd had the right to remove, and on November 29th 1875 he sold said leasehold interest and the machinery and fixtures to the' plaintiff, Boyles, for $425. A bill of sale was prepared and Floyd went at once to the land with Boyles, showed him the machinery and fixtures in a little wooden house, and gave him a key to the door of the house. Boyles took the key, locked up the house, and went home. It was in evidence that at the time of the sale the debts of Floyd did not exceed §150, and that he was worth, by his own estimate, between §2000 and §3000. The fixtures and machinery sold were estimated to be worth about §250. During the following December suits were brought against Floyd and judgments recovered to the amount of §150. In the meantime Floyd had remained in possession of a house on the property sold by him to Boyles, which he had reserved out of the bill of sale, occupying the same at a small rental which he paid to Boyles. About three weeks after the sale Boyles went to the land and nailed up the house containing the machinery. About the 7th of January 1876 he returned and directed Floyd and some other men to remove the machinery and fixtures, as he wanted them elsewhere. On the next day Floyd and others proceeded to remove them, wdien they were interrupted by the defendants, who, as constables, had levied on the same as the property of Floyd. The latter informed the defendants that he had put the property out of his hands, and that he had things fixed so that his creditors could not get a cent out of it. A day or two thereafter Boyles served on the defendants a formal notice of his claim to the goods. They, however, proceeded with the levy, and on the 14th of January sold the property and the purchasers carried it away. Boyles then brought this suit.
    The defendants produced as a witness James Solley, a justice of the peace, who testified to the correctness of a record on his docket, whereby it appeared that two judgments were recorded as obtained by Adams and McBride, respectively, against Floyd, and that executions had been issued by said justice against said Floyd, and that said executions had been issued to Barr, as constable, and returned by him as having made the money by virtue of a levy and sale upon the machinery and fixtures in question. These executions were then offered in evidence.
    The defendants then offered in evidence “ an execution dated the 8th day of January 1876, by H. R. Fullerton, a justice of the peace, and under his seal, directed to Robert Daugherty, constable, at the suit of Thomas Phillips & Co. v. W. P. Floyd, commanding him to make the sum of §45.55; to be followed by evidence that H. R. Fullerton was a justice of the peace of Parker City, in the county of Armstrong, and that the witness-under such, execution levied upon and sold some of the property in this suit, for the purpose of justifying his selling of the same as the property of W. P. Floyd.”
    Objected to because these offers do not show nor propose to-show any judgments as the basis and authority for the executions. (First, second and third assignments of error.)

      The following were among the points of the plaintiff, with the answers of the court thereto :
    1st. That it is not necessary in order to perfect a purchaser’s title to an oil well rig, including the derrick, engine, boiler, &c., attached to the land, that the purchaser should remain at or in the property purchased, but he is only required to take such possession as the property is susceptible of, and the taking of the key of the engine-house and locking the door thereof and retaining the key is such possession as will protect the purchaser as against the vendor and his creditors.
    Ans. “ Affirmed as qualified and explained in general charge.” (Fourth assignment of error.)
    3d. That fraud must be proved or inferred from competent evidence and cannot be presumed, and if the jury believe from the weight of evidence in this cause that the sale of the 29th day of November 1875 of the oil well, rig and ijixtures by Floyd to the plaintiff was bona fide and for a valuable consideration, paid without notice to or knowledge of the plaintiff that Floyd was indebted, in that event the verdict of the jury should be for the plaintiff.
    Ans. “Affirmed if there was such delivery and change of possession as are required, as explained in general charge.” (Fifth assignment of error.)
    5th. That there is no authority shown in the case to justify Robert Daugherty in selling any of the property claimed in the case.
    Ans. “Affirmed as explained in the general charge.” (Sixth assignment of error.)
    The defendants submitted, inter alia, the following points, to which are appended the answers of the court:
    1st. There is no evidence in this cause that actual possession of all the property mentioned in the bill of sale of 29th November 1875 was delivered or ever attempted to be delivered by Floyd to Boyles prior to 8th January 1876. We instruct you that such alleged sale was fraudulent in law, and conveyed no property to Boyles as against Floyd’s creditors.
    Ans. “ The evidence is for the jury, and the request is refused.” (Seventh assignment of error.)
    2d. If the jury believe that the property alleged to have been sold by defendants on 14th January 1876, was by Floyd, on 29th November 1875, sold or attempted to be sold to Boyles by bill of sale, and that the purpose and intention of said Boyles, at the time of such alleged purchase, were not to use said property in operating upon .the land where it then was, but to remove the same to Butler county, and that said Boyles took no possession of the same (other than locking the door of the engine-house), but permitted Floyd to remain in possession of at least part of the property mentioned in said bill of sale, and to exercise acts of ownership over the same, and to afterwards sell part of it; then we instruct you that said alleged sale by Floyd to Boyles was fraudulent in law and conveyed no property to Boyles as against Eloyd’s creditors.
    Ans. “ Refused; that is for the jury, as explained in general charge.” (Eighth assignment of error.)
    3d. If the jury believe from all the evidence in the cause that at the time of the alleged sale by Floyd to Boyles, the object and intention of the parties were to prevent the property being made liable for the claims of Floyd’s creditors, then such alleged sale is void, and the verdict of the jury must be in favor of defendants.
    Ans. “ Affirmed so far as Barr is concerned and his executions extend, and in the negative so far as property not taken aside from his execution, as explained in general charge.” (Ninth assignment of error.)
    In the general charge the court, Boggs, P. J., inter alia, said:
    “ The concurrent possession with the vendor is colorable where the vendor appears to keep the same relation to the property that he did before the sale; the court will pronounce it fraudulent and colorable per se. While it is settled that where there has been such sufficient, actual or constructive delivery to the vendee, the fact that the vendor is employed as a servant about the premises in a capacity where he holds out no right of ownership, does not constitute such concurrent possession as the law demands, and the court in such case is relieved from pronouncing it so. In such case it is a question for the jury whether the change of possession has been actual and bona fide; and so I leave this case to you, for you to say from the evidence how that was.
    “You will carefully consider all the evidence in the case and determine respecting the nature of the transaction as to whether or not the purchase of the property in dispute by the plaintiff from Floyd was bona fide, or whether it was colorable and fraudulent, with intent to hinder, delay and defraud creditors; and as you find that question one way or the other, so should be your verdict. If you find it bona fide and honest, then your verdict should be for the plaintiff for such measure of damages as I have already indicated: but if you find it fraudulent and colorable, as 1 have already explained, your verdict should be for the defendants on the executions in the hands of W. S. Barr ; but as to any of it sold by the defendants which has not been levied and sold on the executions in the hands of Barr, your verdict should be for the plaintiff, giving compensatory damages therefor, as the defendants have shown no warrant or execution to justify themselves for selling any property not levied and sold in said three executions. This would be so even if the sale to Boyles was in fraud of creditors; it would still be binding between Floyd and Boyles and no outside person could attack it except creditors.” (Tenth assignment of error.)

      Verdict for plaintiff. Defendants took this writ and alleged that the court erred as set forth in the above assignments of error.

      John Gilpin and G. S. Crosby, for plaintiffs in error.
    It was enough for the constables to show an execution issued by competent authority. Whether the execution was supported by a judgment was a question in which it would be unreasonable to involve them : Paul v. Vankirk, 6 Binn. 124. Under the circumstances of the case the court should have instructed the jury as a matter of law that the sale was void as against Floyd’s creditors-: Chase v. Ralston, 6 Casey 539 ; Haynes v. Hunsicker, 2 Id. 58; McKibbin v. Martin, 14 P. F. Smith 352; Billingsley v. White et al., 9 Id. 465; Trunick v. Smith, 13 Id. 21; Garman v. Cooper, 22 Id. 32; Streeper v. Eckart, 2 Whart. 308; Clow v. Woods, 5 S. & R. 275; Dunlap v. Bournonville, 2 Casey 72; Milne v. Henry, 4 Wright 357; Brawn v. Keller, 7 Id. 104; Steelwagon v. Jeffries, 8 Id. 407.

      E. S. Golden and J. P. Goiter, for defendant in error.
    The question whether the sale was fraudulent -was properly submitted to the jury. It was clearly incompetent to put in evidence an execution without showing the judgment whereon it was founded.
   Mr. Justice Mercur

delivered the opinion of the court, November 15th 1880.

This was an action of trespass for seizing and carrying away the machinery and fixtures of an oil well. They were on land leased for a term of years, with a right in the tenant to remove them therefrom. At a previous time they had been unquestionably owned by one Floyd. The plaintiffs in error were constables. They sought to justify the taking under and by virtue of executions against Floyd, to them severally directed. The defendant in error claimed to have purchased the property of Floyd, and to have taken possession thereof prior to any levy thereon. The validity, as against Flood’s creditors, of this alleged sale was denied, and presented the main contention in the case.

The executions directed to Barr, and the records of the judgments on which they issued, were given in evidence. Under the several offers covered by the first, second and third assignments, the plaintiffs in error offered in evidence the execution directed to Daugherty, to be followed by proof that H. R.. Fullerton, by whom it purported to be signed, was a justice of the peace in and for the county of Armstrong, having ,his office at Parker City therein, and as such justice and at his office he issued the execution under his seal and delivered the same to Daugherty as constable ; that as such constable he levied on, duly advertised and sold as the property of said Floyd some of the articles in question. The execution was in due form. It recited that a judgment had been obtained before said justice by Thomas Phillips & Co. against W. P. Floyd, for the sum of $45, together with $7.20 costs, which judgment remained unsatisfied, and commanded him, said Daugherty, to levy the said debt, and interest thereon, together with costs, on the goods and chattels of the said debtor, and to expose the same to sale, &c. The evidence was objected to, and rejected by the court by reason of the judgment recited in the execution not being shown.

In a suit against the plaintiffs in the executions for seizing and selling the property, they must show the judgments on which the executions issued to justify the taking. The rule is held differently when the suit is against a sheriff or constable who are ministerial officers.

When an execution regular in form and nothing on its face indicates want of jurisdiction in the justice is directed to the constable and placed in his hands, it is sufficient to protect him in duly executing it according to its commands. He is not required to examine the record to ascertain whether the justice had jurisdiction, and whether the proceedings are all regular. The apparent regularity and presumed jurisdiction, as evidenced by the execution, not only protect him in its due execution, but make it his duty to proceed to execute the writ. Among the numerous decisions recognising this principle may be cited Kerlin et al. v. Heacock, 3 Binn. 215; Paul v. Vankirk et al., 6 Id. 123; Allison v. Rheam, 3 S. & R. 139; Kingsbury v. Ledyard, 2 W. & S. 37; Moore v. Allegheny City, 6 Harris 55; Billings et al. v. May, 11 Id. 23; Cunningham v. Mitchell, 17 P. F. Smith 78; Fall Creek Coal and Iron Co. v. Smith, 21 Id. 230. Also, Savacool v. Boughton, 5 Wend. 170; Beach v. Furman, 9 Johns. 330; Holden v. Eaton, 8 Pick. 437. It follows that the offer of evidence covered by the third assignment, in connection with those covered by the first and second, was improperly rejected.

Under the evidence admitted, no error is discovered in the fifth, ninth and tenth assignments. The remaining assignments relate to the sale and delivery of possession to the defendant in error. As a whole the charge contains a fair exposition of the law. Qualified and explained as the answers to the points are by the general charge, we see no sufficient cause therein for reversal. The substantial error consists in the rejection of evidence, and for this Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Swan, Assignee, versus Watertown Fire Ins. Co.
    1. Foreign insurance companies doing business in Pennsylvania, without having complied with the provisions of the statute relating to such companies, cannot set up their turpitude to defeat actions on their contracts brought by innocent persons. The statute does not impose upon the insured the duty of seeing that the insurer and his agents have complied with the statutory requirements.
    2. An application was signed by the insured and taken by the agent of the insurance company, who changed the same by inserting therein an additional piece of property as well as answers to throe interrogatories relative to the title, encumbrances and value of the land. These changes were made by the agent without the knowledge of the insured or the company. Held, that this fraudulent act was within the apparent limits of the agent’s employment, although not within the actual authority conferred upon him, and that the company was liable. Held, further, that although the insured was not, because of the fraud, held to the warranties of representations in the application, he was bound by the terms of the policy, if after the lapse of a reasonable time he made no objection. Held, further, that what is reasonable time when the facts are clearly established is a question of law to be determined by the court.
    October 26th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Indiana county: Of October and November Term 1879, No. 205.
    Assumpsit by George Swan, assignee of George H. Warren, against the Watertown Fire Insurance Company, on a policy of insurance.
    The defendant is a foreign insurance company, organized under the laws of New York. It obtained a license to do insurance business in this state under the provisions of the Act of 4th of April 1873, Pamph. L. 26. The company named Samuel G. W. Brown as an agent, to whom the insurance commissioner issued a certificate under the provisions of said act, which authorized him “•to transact business as the agent of said -company, so far as he might be empowered by said company.” The company afterwards empowered him “ to take applications, make surveys, and underwrite, deliver and consent to the transfers and assignments of policies of insurance, signed by the president or vice-president and attested by the secretary of said company, in the counties of Armstrong, Indiana, Butler, Jelferson and Clarion.” In pursuance of this authority Brown established his principal office in Kittanning, Armstrong county, and opened branch offices at Indiana, Brook-ville, Butler and Clarion. He also employed persons at fixed salaries to take charge of these offices and aid him in the prosecution of his work. The persons so employed were authorized by Brown to solicit risks, make surveys, take applications, countersign them as agents, .and forward them to him at Kittanning. Upon receiving these Brown transmitted them to the company and delivered policies to the parties insured. To take charge of the branch^qffiee at Indiana he employed II. S. Smullen. Among others Smullen solicited Warren to insure his property in the company. The amount of insurance agreed upon was $1500. Of this $1000 were tcr-be placed on the dwelling-house, and $500 on the personal property in the house.' The cash premium required, $16, was paid. Smullen had blank applications with him. He produced one partially filled, and Warren, at Smullen’s instance, signed it. The parties then proceeded to Warren’s residence to examine the property and finish the application. It was late in the evening when they reached the house. They made a partial examination of the property. Among the household goods there was a sewing-machine. Smullen wanted to insure it. Warren informed him that it was property owned by him and his brother, and declined to insure it. It then being late, in the evening, and Smullen having an engagement for that night, the work was suspended, with the understanding that Smullen would return the next morning and the parties would then complete the application. No inquiries had been made up to this time as to encumbrances, and the questions in the application as to title, encumbrance and value of the land were not asked by Smullen nor answered by Warren. Smullen did not return the next morning, according to arrangement, hut went to Indiana. Sometime during that week, after returning to Indiana, he filled up the balance of the application by inserting the sewing-machine, and the answers to the three interrogatories in relation to title, encumbrances and value of land. This was done in the absence of Warren, and without his authority, knowledge or consent. When the application was thus filled up by Smullen he countersigned it as agent, and forwarded it by mail to Brown, the agent at Kittanning. Brown transmitted it to the company. Sometime afterwards a large envelope, supposed to contain the policy of insurance, addressed to Warren, reached his place by mail. Warren was absent when it came, and it vtas laid in the clock on the mantel unopened. On the 15th day of October 1875, about two months afterwards, a fire occurred in the absence of Warren and his family, whereby his house with all its contents -was destroyed, including the envelope which was supposed to contain his policy. The loss was total. Notice of the fire and loss of the policy was given. The company refused to pay, and this suit was brought. The company filed a copy of the policy, wherein it appeared that the sewing-machine was included as one of the items insured. It appeared in evidence that a judgment of $119 existed against the assured and Augustus H. Warren, his brother, which was a lien against the property at the time it was insured; that this judgment had been confessed by direction of Augustus,, his co-defendant, and that the assured was not aware of its existence at the time the insurance was taken.
    One of the provisions of the policy was that “ all statements and representations contained in any written or verbal application, survey, plan or description of the property herein insured shall be taken and deemed to be warranties on the part of the insured, and if the insured in any such written or verbal application, survey, plan or description, shall make erroneous representations or omit to make known any fact material to the risk, or if the interest of the insured in the property be any other than the entire unconditional and sole ownership of the property, for the use and benefit of the insured, or if the same or any part thereof shall be encumbered by mortgage, judgment or otherwise, and be not so stated to the company, and so expressed in the written portion of the policy, then, in every such case, and in either of said events, this policy shall be null and void.”
    At the trial before Blair, P. J., of the Fortieth Judicial District, holding special court, the plaintiff offered in evidence the copy of the policy furnished by the company. The defendant objected to its admission unless accompanied by the application which by the terms of the policy was made part thereof. The company having retained possession of the application, produced it. This was the first knowledge the assured had of its being filled up by Smullen in the manner stated. The company objected, that the policy made the statements contained in the application warranties of the truth thereof, that the assured had broken these by false representations as to his ownership of the sewing-machine, and by false answers to the interrogatory as to encumbrances. The plaintiff replied by proof of the fraudulent making and altering of the application by Smulleu, who acted in the premises as agent of the company, and alleged this made the application void as against the plaintiff; and requested the court to instruct the jury as follows :
    1. That if the jury find from the evidence that the company appointed Brown its agent in the counties of Armstrong, Indiana, Jefferson, Clarion and Butler, to solicit insurance, agree upon rates, receive premiums, make suveys, take applications, fill up policies signed in blank by the proper officers of the company, and deliver the same to the insured; that in pursuance of said appointment he established his principal office at Kittanning, and opened branch offices at Indiana, Broolcville, Clarion and other places in the counties aforesaid, and employed clerks and others to aid him in the business aforesaid, with the knowledge of the company, then in such case the acts of his employees in the premises are his acts, and, as such, are binding upon the company.
    2. That if the jury further find that Brown, in pursuance of his aforesaid agency, employed Smullen to aid and assist him in the aforesaid insurance business, in the county of Indiana, that in pursuance of his employment Smullen solicited the plaintiff for the risk in suit, and procured the application in evidence to he signed by the plaintiff, with that part embracing the interrogations in blank, without reading or otherwise making known to him the purport thereof; and that he afterwards filled in the sewing-machine and the answers to the interrogatories in plaintiff’s absence, and without his authority, knowledge or consent, then, and in such case, the application is void, and is not binding upon the plaintiff.
    The court refused to so instruct the jury and, inter alia, charged:
    “ That when Warren accepted the policy, he adopted Smullen’s work. * * * He must be taken as assenting or acquiescing in what Smullen did. The evidence, we think, is insufficient to reform the contract or to make a contract different from that expressed in the papers. Your verdict should therefore be for the defendant.”
    Yerdict accordingly, when plaintiff took this writ and alleged that the court erred in refusing to charge as requested above and in the portion of the charge quoted.

      Weir & Gibson, John N. Banks and John R. Wilson, for plaintiff in error.
    Smullen solicited the risk, made the contract, received the premium, countersigned the application with his own signature as the company required its agents to do; then forwarded all to Brown, the general agent, who transmitted them to the company. Thus the company received, accepted and appropriated to its own use the fruits of Smullen’s agency, and thereby recognised him as its agent, and it was their duty under the law to certify his name to the insurance commissioner, that he might thereby be lawfully authorized to act for it: Act 4th April 187 3. But if the company neglected this duty and permitted Smullen to do business for it without license, in violation of law, it was the fault of the company, and it cannot take advantage of its own wrong. The company was affected by the fraud of Smullen in altering the application: Musser v. Hyde, 2 W. & S. 314; Story on Agency, sect. 452; New York Life Ins. Co. v. McGowan, 6 Am. Law Record 190; Massachusetts Life Ins. Co. v. Eshelman, 30 Ohio St. 647. Acquiescence in legal contemplation is a fixed and unbiased determination not to impeach the transaction. It may be proved either by acts evidencing acquiescence, or by the mere lapse of time during which the transaction has been allowed to stand. It is a question of fact, and not purely of law: Kerr on Fraud and Mistake 300; Irving v. Thomas, 6 Ship. 418; Cumberland Coal Co. v. Sherman, 20 Md. 117. Warren could not have acquiesced in, adopted or ratified the fraud when he had no knowledge of its existence

      Silas M. Clark, for defendant in error.
    The right to impeach a transaction on the ground of fraud may be lost by confirmation, acquiescence or delay. A transaction originally voidable on the ground of fraud may become unassailable in consequence of the acquiescence of the injured party in the state of affairs which has resulted from the fraudulent act: Kerr on Fraud and Mistake 296. Warren was of course fully apprised of his right to impeach the transaction, as .he knew the application was to have been returned to him for complete execution, and was not. The material portions of the application were unsupplied when Smullen took it away, and Warren knew the transaction was impeachable, and by examination of the policy which the company put into his hands, “ he knew, or might or ought with reasonable or proper diligence, to have known of the nature, extent and character of that fraud:” Kerr on Mistake, ch. 1, sect. 6. He therefore acted knowingly and advisedly. A person who is injured by fraud must be prompt and energetic in seeking redress. Warren by his course accepted the policy and then acquiesced in and approved Smullen’s work. We maintain that Smullen was in no sense the agent of the company for any purpose, or possessed any power whatever under the law to represent the company, and that throughout this whole transaction he was the agent of Warren and not of the company.
   Mr. Justice Trunkey

delivered the opinion of .the court, November 15th 1880.

The application and policy constitute the contract, unless some matter was fraudulently or mistakenly inserted or omitted, changing it to something else than was agreed upon. Each party pretends not fully to have known the contents before the burning of the property insured; the company asserts it had not seen the application and had no knowledge of Smullen’s agency, and Warren says he never read the policy and that the application was altered after he had signed and delivered it' to the agent. Yet both claim they made an agreement'; one that it is evidenced by the policy and application together, the other that the policy alone is the contract. At the trial the 'defendant withdrew the testimony given on its part, and the cause was submitted upon the plaintiff's; whereupon the court instructed the jury to find for the defendant. Hence, in determining whether the instruction was erroneous, the testimony must be treated as true, with inferences which the jury could properly have drawn in favor of the plaintiff.

Brown was agent for the company doing business in the counties of Clarion, Jefferson, Indiana and Armstrong, with numerous persons employed under him. If such applications as Warren’s were forwarded to the company it had notice of the sub-agency — if Brown retained them and issued the policies thereon, then the notice to him was notice to the company. When a general agent in the due prosecution of the business of his principal, employs another in a branch of the business, the acts of the sub-agent have the same effect as if done by the general agent. In such case the sub-agent becomes the agent and direct representative of the principal : Massachusetts Life Ins. Co. v. Eshelman, 30 Ohio St. 647. At the foot of the application appear these words: “ I fully recommend the applicant and risk. H. S. Smullen, agent.” Then follow “remarks of agent” where he answers interrogatories. This is the part of the contract signed by Warren and retained by the company.' Smullen solicited and made out the application, received the premium, forwarded the same to Brown, and the policy was sent to the applicant. It is a natural inference that he was the company’s agent. It may be, as alleged, that in so acting he rendered himself liable to a penalty for violating the statute relating to foreign insurance companies. These companies doing "business in this state without having complied with the provisions of the statute, for that reason, may not enforce their contracts; but cannot set up their turpitude to defeat actions on their contracts brought by innocent persons. Their agents may neglect to procure the prescribed certificates, but that shall not avail the principals to avoid their contracts for insurance. The statute does not impose upon the insured the duty of seeing that the insurer and its agents have complied with the statutory requirements. That a company soliciting and receiving the consideration for insurance, may avoid its obligation on the ground that either itself or its agent has violated the law, is a proposition repugnant to familiar elements of the law.

After the application was signed by Warren and taken by the agent, it was changed by inserting the sewing-machine and the answers to three interrogatories respecting title, encumbrance and value of the land. This was done by the agent without the knowledge of either party to the contract. But if the fraudulent act was within the apparent limits of the agent’s employment, although not within the actual authority conferred upon him, the principal will be liable. The company invited the public to deal with its agent in relation to a branch of its business, and so long as he is within the apparent scope of the employment intrusted to him, the law will hold the principal liable for his acts, and charge it with his knowledge, whether the fraud is upon itself or third persons to the extent the tort affects third persons. This is but a practical application of the well recognised rule, that where one of two parties must suffer loss by reason of the fraud of an unfaithful agent it must be the company and not the innocent assured : Massachusetts Life Ins. Co. v. Eshelman, supra. We think the plaintiff’s first and second points sound, but they do not determine the case in his favor.

Warren received the policy in due time, and no misrepresentations, concealments, or forgery of its contents are in the way of its enforcement, taken by itself. It contains these stipulations: “ If the interest of the insured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured, or if the same or any part thereof shall be encumbered by mortgage, judgment or otherwise, and be not stated to the company, and so expressed in the written portion of the policy, then and in every such case, and in either of said events, this policy shall be null and void.” These are stipulations in the policy, as binding upon the assured as if he had made no written application. He is not held to the warranties of representations in the application because of the fraud upon him ; but that fraud does not affect the terms of the policy independent of the application. When he accepted the policy he accepted its terms. He was not the sole owner of part of the property insured, and part was encumbered by judgment, neither of which facts was expressed in the written portion of the policy. This was plain and he could readily see that his policy was void. To say that he did not read the policy and, therefore, is not bound by its terms, sounds as ill in him as in the company to say it did not know Smullen was its agent. Warren held the policy more than two months before the fire. Not a circumstance is proved tending to induce him not to read it; but instead, he says the application was not finished when he signed it, that he was not satisfied about the sewing-machine being put in, and that he instructed Smullen to fill it up. Then he knew facts to incite him to read the policy. After the lapse of a reasonable time, without objection, he is presumed to have accepted it. There is no evidence which ought to overcome that presumption. The learned judge of the Common Pleas ruled that he accepted it by retaining it so long, and that was not error. He well remarks that the policy might have been returned and premium demanded, if not satisfactory. Although Warren was not prejudiced by anything wrongfully written in the application by the company’s agent, he was bound by what he held in his own hand. In this case there is no difficulty about, the facts and it must be presumed that the assured assented to the policy as written.

It was urged by the plaintiff’s counsel that whether the assured is bound to the terms of the policy by having kept it an unreasonable time is a question of fact for the jury. Where the facts are not clearly established, or where the question of time depends on other controverted facts, or where the motives of the party enter into the question, perhaps the whole must necessarily be submitted to the jury. But what is a reasonable time is a question of law, and where the facts are clearly established, must be determined by the court. It has been settled that where no time is specified for the performance of a contract, that the law implies that it shall be performed within a reasonable time; also that a reasonable time is a question of law: 2 Parsons on Cont. 535, 661, and cases cited in notes. The reasons are quite as strong that the law implies that if the assured does not return the policy within a reasonable time he accepts, and that the court must determine what is a reasonable time. We are of opinion that it was not error to direct a verdict for defendant.

Judgment affirmed.

Justices Merour and Sterrett dissented from that part of the opinion which imputes legal negligence to the act of retaining the policy, also from the judgment.


author: Mr Justice Mercur

text:
    Montgomery versus Heilman.
    1. A justice of the peace has no jurisdiction of an action brought by a distributee in the Orphans’ Court to recover from an executor his distributive share. Nor can consent give jurisdiction so as to prevent objection thereto being made- in a future trial of the cause.
    2. Where, however, such a suit is instituted and by agreement of the defendant the case is tried before a justice of the peace and results in a judgment for plaintiff, and defendant takes an appeal to the Common Pleas, and afterwards the plaintiff in accordance with a rule of court files a sworn copy of his account and takes a judgment for want of an affidavit of defence, the defendant is estopped from objecting to the jurisdiction of the justice in order to destroy the validity of the judgment.
    3. A rule of court provided that before judgment was entered for want of an affidavit of defence the plaintiff should “ file, on or before the return day of the writ, with his declaration or statement when necessary, or, in cases of appeal, on or before the first day of the term to which the appeal is entered, an affidavit stating the amount he verily believes to be due from defendant, together with a copy of the book entries or instrument upon which the suit is brought; or where the claim is not evidenced by writing, a brief setting forth a full and detailed statement of the same, verified as aforesaid.” The plaintiff in the above case, in due time, filed a sworn calculation of the amount due him “ per auditor’s report” in the Orphans’ Court. Held, that this was a sufficient compliance with the rule, and in default of defendant filing an affidavit of defence within the stipulated time the plaintiff was entitled to judgment.
    October 26th 1880.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Tritnkby, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Armstrong county: Of October and November Term 1880, No. 104.
    Appeal from a judgment entered by a justice of the peace in favor of Jacob TIeilman against Thomas Montgomery.
    The defendant was the executor of' Jacob Heilman, Sr., and the suit was instituted against him on the following bill:

      [Montgomery a. Heilman.]
    Thomas Montgomery, Dr.,
    To Jacob Heilman,
    Jan’y 21, ’79, amount of principal due per auditor’s report of distribution of the estate of Jacob Heilman, $95.87
    Or. by cash paid, ,87.00
    The defendant was duly summoned, and the transcript of the docket of the justice, inter alia, recited: “ Defendant appears and claims that the above claim is on record in the Orphans’ Court of Armstrong. * * * Defendant appears and agrees to have the case tried before Justice Schall.” The trial was had before the justice, and judgment entered for plaintiff for $8.87. The defendant appealed to the Common Pleas, and filed a transcript of the entries on the docket of the justice. On June 2d 1879 the plaintiff filed a sworn eopy of his account as above, and on June 23d 1879 entered a judgment for $9.03 for -want of an affidavit of defence.
    The following was a rule of the court in regard to the entering of judgments for want of an affidavit of defence:
    “ In actions on recognisances, judgments, mortgages, liens of mechanics and material-men, municipal claims, transcripts from the Orphans’ Court, book-accounts, bonds, bills, notes and other instruments of writing for the payment of money, and in all actions on express contracts for the payment of money, and whether the same be in writing or not, and in appeals from the judgments of justices of the peace, if the plaintiff shall file on or before the return day of the writ, with his declaration or statement Avhen necessary, or in cases of appeal, on or before the first day of the term to Avhich the appeal is entered, an affidavit stating the amount he verily believes to be due from the defendant, together with a copy of the book-entries or instrument upon which the suit is brought, or where the claim is not evidenced by writing, a brief setting forth a full and detailed statement of the same, verified as aforesaid, he shall be entitled to judgment at any time after twenty days from the return day of the writ, or in case of appeal from the first day of the term to which the appeal is entered, unless the defendant shall have filed an affidavit of defence setting forth fully the nature and character of the same.”
    The defendant obtained a rule to show cause why the judgment should not be stricken off, on the ground that the record showed, 1, That the claim was not Avithin the Affidavit of Defence Law, and 2, That the justice of the peace had no jurisdiction of the cause of action. The court, Neale, P. J., discharged the rule, which action was assigned for error by defendant who took this Avrit.

      E. S. Golden, for plaintiff in error.
    Neither declaration nor statement was filed, and hence the plaintiff did not bring himself within the rule, and his judgment was therefore unauthorized by it. Statement is a technical term, and means a substitute for the common-law narr. or declaration and does not mean a mere copy of the plaintiff’s claim. Before the plaintiff can take judgment in any case for want of an affidavit of defence, his case before the court must exhibit upon its face jurisdiction in the court and a present obligation on part of the defendant to pay money. The practical test is, could the plaintiff go to the jury and recover on proof of the statement filed without more: Hon. J. T. Mitchell’s Lecture on Motions and Rules 63; Dickinson v. McCausland, 3 W. N. C. 327; Imhoff v. Brown, 6 Casey 504; Commonwealth v. Pelletier, 8 W. N. C. 516.
    A distributee in the Orphans’ Court cannot sue before a justice of the peace for his distributive share. His remedy is exclusively in the Orphans’ Court: Loomis’s Appeal, 10 Barr 390. Consent will not give jurisdiction : Collins v. Collins, 1 Wright 387.

      M. F. Leason, for defendant in error
   Mr Justice Mercur

delivered the opinion of the court, January 24th 1881.

It may be conceded that this cause'of action was not within the jurisdiction of a justice of the peace. It is equally true that consent cannot giye jurisdiction so as to prevent objection thereto being made in a future trial of the cause. It however is not obligatory on a party to interpose such objection. In this case, as appears by the record, after the claim was filed the plaintiff in error appeared and at first objected, but afterwards agreed that the case be tried before the justice, and it was so tried. On appeal to the Common Pleas be made no allegation of want of jurisdiction. He put in no plea ; made no affidavit of defence as required by the rules of court, and permitted judgment to be entered against him. Thus by express agreement before the justice, and by his tacit consent afterwards, judgment was regularly entered. After this the court granted a rule to show cause why the judgment should not be stricken off, but subsequently discharged it. The alleged grievance of the plaintiff is that “ the court erred in discharging the rule to show cause, and refusing to strike off the judgment for want of an affidavit of defence.”

It is clearly shown by the rule of court and the opinion of the judge that the requisite time had elapsed after the affidavit of claim was filed to entitle the defendant in error to judgment for want of an affidavit of defence. It is urged, however, that if the record showed want of jurisdiction it dispensed with the necessity of putting in such an affidavit. The record did show a waiver of that question and an agreement to try the case on its merits. A view of the whole record, created no presumption, and gave no notice that any objection would be taken to the jurisdiction. As the case then stood with jurisdiction agreed to, the action was subject to the same rule which applies to appeals from the judgment of a justice entered on a claim for money due. The attempt now is not to show want of jurisdiction in a pending action, nor that an affidavit of defence was not necessary, if under the showing of the record the court could entertain jurisdiction. Suppose when judgT ment was moved for the plaintiff in error or his counsel had risen in court and said “ I interpose no objection by reason of want of jurisdiction. I expressly agreed to waive that and that the case should be tried before the justice on its merits and it was so tried. I still adhere to that agreement, and.desire the court to pass upon the case as if there was undoubted jurisdiction,” and the court had thereupon ordered judgment, the case would have been no stronger than it is now. It would have been an oral assertion of what his declaration of record was asserting to the eye of the court. Let us follow it a step further. Suppose he had suffered execution to issue on the judgment, and his property to be sold, could he then be permitted to question the validity of the judgment for want of jurisdiction in the justice? Could he maintain suit against the officer or purchaser resting on alleged w'ant of jurisdiction ? We think he would be estopped from so doing.

If then, under any circumstances, he would be estopped from interposing want of jurisdiction to destroy the validity of the judgment, why not under the admitted facts in this case ? With full knowledge of the law, by his express agreement, he induced the defendant in error to incur the costs and expenses of a trial, and the justice and the prothonotary to render their services for which the statute gives them fees. He invited the judgment to be entered against him. Can he thus trifle with two courts, and also escape the application of the doctrine of equitable estoppel ? We think not. He now attempts to avoid the payment of costs which he expressly induced the other party to incur. The judgment was regularly entered. His effort now is to contradict what he said of record before and at the time judgment was taken. He appealed to the sound discretion of the court either to open a judgment regular on its face or to strike it off for a cause shown by the record to be waived. The learned judge was right in refusing to disturb the judgment.

Judgment affirmed.

Mr. Justice Trunkey filed a dissenting opinion, in which Chief Justice Siiarswood and Mr. Justice Paxson concurred.


author: Mr. Justice Sterrett

text:
    Walbridge versus Knipper, Administrator.
    1. Testimony when not perpetuated by depositions or preserved in notes of trial, may be proved by witnesses wlio were present at the trial and remember what was then testified to by the party since deceased or rendered' incompetent by the death of his adversary.
    2. This rule applies as well to testimony before arbitrators as in court, and it was error therefore to reject the testimony of arbitrators who testified in regard to a claim which came before them as arbitrators during the lifetime of a decedent who was then a defendant.
    October 21st 1878.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Strrrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Erie county: Of October and November Term 1878, No. 52.
    Assumpsit by C. II. Walbridge against Peter Knipper, administrator of Peter Wingerter, deceased. This was an appeal from a board of arbitrators.
    At the trial before Galbraith, P. J., the plaintiff made the following offer:
    To prove what plaintiff testified concerning his claim attached to the declaration before the arbitrators in the lifetime of Peter Wingerter, the defendant, by the arbitrators’ testimony.
    The court refused, saying :
    “ This offer is rejected, it not appearing that the testimony was reduced to writing, nor that the defendant was present; therefore the offer is not within the decision in the case of Evans v. Reed, 28 P. E. Smith 415, or that of Pratt v. Patterson, 31 Id. 114.”
    Verdict for defendant, and after judgment thereon plaintiff took this writ, his first assignment of error' being the rejection of the above offer.

      S. E. & T. S. Woodruff, for plaintiff in error.
    If the ruling of the court is sustained it would logically exclude every witness from testifying to anything he heard said about any matter in controversy, unless he had made and kept a memorandum of what was said at the time the words he is called to testify to were spoken. But the court below went further, and determined that the deceased party must have been personally present at the trial when his opponent testified, or else the testimony of the survivor cannot be proved. This would reduce the supposed perpetuation of testimony toa nullity ;for before the Act of 1869 it was always allowable to prove what either party said or swore to in the presence of the opposite party.

      Q-. A. Allen and L. Rosenzweig, for defendant in error.
    The statutes provide a method by which the evidence of a party competent to testify may be perpetuated. Each party stands on an equal footing, and the courts have not gone so far as to say that the recollection of a man as to a person’s evidence shall be 'admitted, when the same party fails to avail himself of the benefit of the statute. The court below held that in order to admit the evidence offered as a declaration it must have been made in the presence of Wingerter, which does not in any manner conflict with the rule allowing either party to prove what the other said or swore to in the presence of the opposite party.
    A re-argument was ordered on this first assignment of error.

      S. E. & T. S. Woodruff, for plaintiff in error.
    It was not necessary that Wingerter should be personally present at the trial : Starkie on Evidence, pp. 24, 25, and sect. 164. Nor was it necessary that the testimony should be reduced to writing: Greenleaf’s Evidence, sects. 163, 166. In the case of Insurance Co. v. Johnson, 11 Harris 72, the testimony of a witness before arbitrators was permitted to be proved by another witness, he living out of the state, and no notes of his testimony before the arbitrators having been taken.
    A witness may state the substance of what was sworn by a witness on a former trial: Conner v. Green, 10 S. & R. 14; Lightner v. Wike, 4 Id. 204. When this court decided in Evans v. Reed, 24 P. F. Smith 415, that the judge’s notes were evidence they decided, a fortiori, that the testimony of a witness, who remembers what was sworn to, is evidence. The brief notes are but the shadow. The substance is the testimony of the party who gave his testimony in the lifetime of his adversary, under the sanctions of a judicial oath,-with full opportunity for cross-examination. The Act of 1869 says that it shall be evidence. When did it cease to be evidence ? The case of Pratt v. Patterson, supra, determines that it does not cease to be evidence at the death of the opposite party. Then the only question is as to the method of proving what the party did testify to in his lifetime. This may be done according to Evans v. Reed, supra, by notes taken of his testimony. They serve to refresh the memory of the witness or judge taking them, but are weaker or secondary evidence to that of the witness who can testify positively to what was sworn to. Parol evidence is competent in Pennsylvania to alter or disprove writings of any kind, and why 'the hasty notes of the testimony of a witness, should be evidence, whilst that of the living witness who speaks from recollection is excluded is difficult to see.

      G. A. Allen and L. Rosenzweig, for defendant in error.
    In carrying out the true spirit and meaning of the proviso of the Act of 1869, the living have not been permitted thus far to testify against the rights of the dead, unless by deposition regularly taken during the lifetime of the parties, or what is equivalent thereto, notes of testimony so taken and authenticated as to give them the character of depositions. In the case of Evans v. Reed, 28 P. E. Smith 417, the notes of testimony of the plaintiff, properly proven and authenticated, were treated as a deposition and as such his testimony was perpetuated under the provisions of the third section of the Act of 1869, and were made admissible under the provisions of the Act of March 28th 1814, and in Pratt v. Patterson, 31 P. F. Smith 114, the same doctrine is more explicitly set forth. This doctrine is again held in Zell v. Benjamin, Leg. Int., Oct. 3d 1879. In the case of Allum’s Ex’rs. v. Carroll’s Administrators et al., 27 P. F. Smith 68, this court held that the testimony of McKenna given on the trial before arbitrators, could not be shown in a subsequent trial after the death of Carroll, one of the parties. This case is very like the one at bar, and two very potent reasons are given why the offer to prove what McKenna testified to before the arbitrators should have been rejected. 1st. Because it required the force and power of an Act of Assembly to make the deposition of a party evidence on the trial, and if it required an Act of Assembly in such case how could a much more inferior kind of testimony be admitted without an Act of Assembly so providing. 2d. Because if not excluded the equality intended to be preserved between parties by the provisions of the Act of 1869 would be destroyed. The rule deducible from the cases then is that the testimony of a party to a suit after the death of one or both of the parties, can only be used and admitted in evidence, in the form of a deposition, as provided by the Act of Assembly, or that which is equivalent thereto, notes made a deposition by a proper authentication.
   Mr. Justice Sterrett

delivered the opinion of the court January 5th 1880.

It is well settled that the testimony of a witness, since deceased, may be reproduced on a subsequent trial between the same parties, in relation to the same subject-matter: Whart. on Ev., sect. 117 ; Greenleaf Evidence, sect. 163. Nor is the rule restricted to deceased witnesses. It applies equally to those who are non-residents of the state in which the trial takes place, and out of the jurisdiction of the court; and also to those who have intermediately become insane (Emig v. Diehl, 26 P. F. Smith 359), or incompetent by reason of the decease of the opposite party since the former trial: Pratt v. Patterson, 31 P. F. Smith 114. In Emig v. Diehl, supra, the present chief justice says: “ It seems clear on principle that the deposition or testimony of a witness, formerly taken in the same cause, can be read in evidence on showing that he is sick or unable to attend, insane or in such a state of senility as to have lost his memory of the past, equally as where he is dead or out of the jurisdiction.”

If it appears that the witness was not sworn or that he testified coram non juclice, or that the opposite party had not at least an opportunity of being present and cross-examining, whether he availed himself of the privilege or not, the testimony is not admissible. The rule applies as well where the witness testified before arbitrators as in court: McAdams’s Ex’rs v. Stilwell, 1 Harris 90.

As to the mode of reproducing the testimony of such witnesses, it may be done by introducing their depositions, properly taken and authenticated, or notes of their testimony, the accuracy of which has been first shown, as in Pratt v. Patterson, supra, or by proving what they testified to on the former trial, by some person who heard them testify and remembers their testimony or the substance thereof: Magill v. Kauffman, 4 S. & R. 818.

If the testimony offered and rejected by the court below had been that of a stranger to the suit, since deceased, or not within the jurisdiction of the court, there can be no doubt that, under the uniform current of authority, it would have been perfectly competent. The fact that his testimony before the arbitrators had not been reduced to writing would not have been a valid objection; nor the additional circumstance that the defendant was not present and did not hear him testify, provided he had an opportunity of being present and neglected to avail himself of it. What difference can it make that the testimony offered was that of the plaintiff instead of the testimony of a stranger to the suit ? It is impossible to point out any valid ground of distinction. As to competency, it was the purpose of the Act of 1869 to place the parties to an action on the same plane of equality with strangers, leaving the fact of their being parties in interest to go to their credibility. We have-■already held that it is competent for the surviving party to a suit to reproduce his own testimony, given on a former trial, when both were living and alike competent, by introducing his deposition or proving his testimony from notes of former trial, as well as for the personal representatives of a deceased party to introduce, in like manner, his testimony given on a former trial when both were living and competent to testify in person as other witnesses: Evans v. Reed, 28 P. F. Smith 415; Pratt v. Patterson, supra. The conclusion reached in these cases was the logical result of the application of well-settled principles of the law of evidence to the act allowing parties in interest to be witnesses. A proper application of the same principles requires us to hold that the testimony when not perpetuated by depositions or preserved in notes of trial, may be proved by witnesses who were present at the trial and remember what was then testified to by the party since deceased or rendered incompetent by the death of his adversary. Any other construction of the act would, in effect, be legislating into its provisions an exception or limitation that does not exist. What has been so well said by our brother Mercur in the cases last cited, in relation to the spirit and purpose of the' act, is so appropriate to the present case that further consideration of the question before us is rendered unnecessary. We think there was error in rejecting the testimony referred to in the first assignment.

The questions involved in the remaining six assignments of error were correctly ruled and require no further notice.

Judgment reversed, and a venire facias de novo awarded


author: Chief Justice Sharswood

text:
    Truby’s Appeal.
    1. The Act of June 7th 1879, which enables a bank to exempt its shareholders from all other taxation by collecting six-tenths of one per cent, upon the par value of all the shares and paying the same into the state treasury, was intended to take effect immediately, so as to include the year of its passage.
    2. Said act is not in violation of art. 9, sect. 1 of the Constitution, providing that “All taxes shall be uniform on the same class of subjects, within the territorial limits of the authority levying the tax.”
    3. Per Shakswood, C. J. — Where appeals are taken from preliminary injunctions the Supreme Court will not, except in flagrant cases, pass upon the merits 'of the case, but will simply continue the injunction.
    October 26th 1,880.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas of Indiana county: Of October and November Term 1880, No. 265. In Equity.
    Bill in equity filed by John Kinter and others against John Truby, treasurer of Indiana county, to restrain the collection of a certain tax.
    The bill set forth that the complainants were stockholders of the Indiana County Deposit Bank. The commissioners of Indiana county, at or about the time they assessed the rates and levies for county purposes for the current year, rated and assessed the stock owned by the plaintiffs in the bank aforesaid to pay five mills on the par value thereof for county purposes, and a special tax of three mills thereon for the current year. These taxes were assessed in pursuance of the Act of March 31st 1870, Purd. Dig. 143, pi. 96, of which the following are the material sections:
    “ Sect. 3. All the shares of national banks, located within this state, and of banks and savings institutions incorporated by this state, shall be taxable for state purposes at the rate of three mills per annum upon the assessed value thereof; and for county, school and local purposes, at the same rate as now is or may hereafter be assessed and imposed upon other monied capital in the hands of individual citizens of the state.”
    “Sect. 4. In case any bank or savings institution aforesaid shall elect to collect annually from the shareholders thereof a tax of one per centum upon the par value of all the shares of said bank or sayings institution, and pay the same into the state treasury, on or before the 20th day of January in every year, the said shares, capital and profits shall be exempt from all other taxation under the laws of this Commonwealth.”
    The taxes above mentioned remaining unpaid, the commissioners, on May 1st 1879 placed them in the hands of the defendant for collection, which he was authorized to do by virtue of the Act of April 4th 1872, Pamph. L. 954, and its supplements. The complainants- contended that he should not do so because on the 7th of June 1879 an Act of Assembly was passed, providing, inter alia, “ that * * * all shares of stock in any bank, banking or savings institution or company, now or hereafter incorporated by or in pursuance of any law of this Commonwealth * * * shall be and are hereby made taxable for state purposes at the rate of four mills on every dollar of the value thereof annually; provided that * * * in case any bank or savings institution incorporated by this state, or any national bank, elect to collect annually from the shareholders thereof a tax of six-tenths of one per centum upon the par value of all the shares of said bank or savings institution, and pay the same into the state treasury on or before the 20th day of June of every year, the shares, capital and profits of such bank shall be exempt from all other taxation under the laws of this Commonwealth;” and that in pursuance of .this law the cashier of said bank collected from the shareholders thereof six-tenths of one per centu-m on the par value of all the stock owned therein and paid the same into the state treasury on the 19th day of June 1879, by reason of which payment appellees claim they are not liable for the payment of the tax complained of on the duplicates in the possession of appellant.
    The bill further alleged that the defendant nevertheless was, under the authority conferred by the Act of April 4th 1872, about to issue a warrant to constables to levy and collect by distress and sale of complainants’ goods said taxes imposed by the commissioners upon the complainants’ shares of stock for the year 1879, which proceedings would subject complainants to expense, inconvenience and irremediable injury. The bill then prayed for an injunction preliminary until hearing, and perpetual thereafter, to restrain defendant from resorting to any process to collect said taxes. The court, Hunter, P. J., granted a preliminary injunction, and subsequently continued the same until an answer or demurrer should be filed and a further hearing had. From this decree this appeal was taken by defendant, who assigned for error the granting, and continuing of the preliminary injunction.

      J. A. C. Ruffner and J. N. Banks, for appellant.
    [Sharswood, C. J.: “ It is needless to bring up eases of this sort on appeal, for this court will, except in flagrant cases, continue the injunction and file no opinion on the merits until the case is brought up on final decree of the court below. The proper way to bring these cases here is to enter final decree by agreement.”] The counsel then agreed in writing at bar that the preliminary injunction granted should be taken as final and the appeal taken from said final decree. They then argued: The Act of June 7th 1879 did not refer to the then current year, and appellees are not released from paying the taxes assessed therefor. It does not seem that the legislature so intended, for in that event banks that paid on or before the 20th day of January, under the law as it then stood, were required to pay into the state treasury one per cent, on the par value of their stock, and this relieved the stockholders from further liability to taxation on their stock for that year, but state banks that neglected to pay the one per cent, on or before the 20th of January could relieve their stock from taxation by payment of six-tenths of one per cent, on or before the 20th of June under the Act of 1879, making thereby two different rates of taxation for the same class of subjects for that year. This is a violation of article 9, sect. 1 of the Constitutution which provides that all taxes shall be uniform on the same class of subjects, within the territorial limits of the authority levying the tax, and cannot be done.
    It will be further observed that the liability of the stock of state banks to taxation for state, county, school and municipal purposes became absolute after the 20th day of'January 1879, in case said bank failed to pay to the state treasurer, on or before that time, a tax of one per centum upon the par value of its stock. The tax complained of was assessed and placed in the hands of the proper officer for collection more than one month before the passage of the Act of June 9th 1879. Some of the persons against whom this tax was assessed may have paid their proportion of it, and if so, they did only what the law required of them. Now, if those who did not pay could be relieved by the bank paying to the state treasurer one-sixth of one per cent, on the par value of' the stock of said bank, this would not make the taxes uniform on the same class of subjects, and would be in violation of the article of the Constitution before mentioned.

      Silas M. Clark and Marry White, for appellees.
    The Act of 1879, by its express terms, was to go into effect immediately. The appellees therefore had an incontestable right to avail themselves of the act. The act is not in conflict with article 9, sect. 1 of the Constitution. The rate of taxation under the Act of 1870 was uniform on the same class of subjects, to wit, three mills ; the price of exemption was also the same to all banks, and such as availed themselves of its provisions all paid that. By the passage of the Act of 7th June 1879, however, therfe was a change effected, which presented a new system, with like uniform rates, and price of exemption to all who saw fit to embrace its offer. That some were benefited by its provisions beyond what was offered under previous laws is no constitutional objection to the enactment ; it was all a matter for the state, and if it was believed the banks would accept the provisions and thus benefit the state it was within the legislative power to make the offer.
   Chief Justice Sharswood

delivered the opinion of the court, November 8th 1880.

That it was the intention of the legislature that the Act of June 7th 1879 should go into effect immediately so as to include the year of its passage is, we think, very plain upon its face, as well as from a consideration of its object. This is indeed but faintly denied by the appellant, but it is- earnestly contended that it was beyond their power because they had already provided differently for that year. It is said, therefore, that- it is wanting in the uniformity required by the Constitution. But the rate provided by the Act of 1879 is uniform. How can its constitutionality be affected by the fact that the Act of 1870 made a different provision, and that one or more banks may have availed themselves of its provision by paying one per cent, on their capital to secure an exemption from all other taxation ? Those banks are not complaining. If the legislature should in the middle of a year repeal totally a tax upon any particular class of subjects, would it be any objection to the constitutionality of making such a repealing act go into effect at once that one or more persons had already paid the taxes for that year which had thus been repealed? Their objections would not be heard to prevent the exercise of the legitimate authority of. the legislature in relief of the whole community. They might have an equitable claim on the government to have the taxes thus paid refunded, but could not insist that the old tax for that year should be collected. In principle we cannot see how this differs from the case in hand.

Decree affirmed, and appeal dismissed at the costs of the appellant.


author: Mr. Justice Paxson

text:
    Wilson et al. versus Commonwealth.
    Defendants were charged in the first count of an indictment with a conspiracy to enter upon certain premises and to hold and keep possession of the same, and in the second and third counts with forcible entry and detainer. The jury convicted them of the conspiracy, and acquitted them on the second and third counts. The court sentenced" them to pay a fine of S25, to be imprisoned for one hour, and to pay the costs of prosecution. Held, that this was not error.
    2, It was contended that the indictment was for conspiracy at common law, and that as a remedy was provided for the offence charged by the Act of March 31st 1860, this remedy should have been pursued and the defendants could not be sentenced under the indictment. Held, that the conviction for conspiracy is not inconsistent with an acquittal of the charge of forcible entry and detainer. The legal effect of such a record is to show that the defendants conspired to commit the act, but did not accomplish their object, and they could be punished for the unlawful agreement. Held, further, that the count for conspiracy was laid at common law ; that conspiracy at common law is a much broader offence than the one prescribed by the statute ; that the 128th section of the statute does not and was not intended to interfere with the indictment and punishment of common-law conspiracy, and that the defendants were properly sentenced.
    October 27th 1880.
    Before Sharswood, 0. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Quarter Sessions of Indiana county: Of October and November Term 1879, No. 370.
    Indictment of Edward H. Wilson, Barnabas Douglass and others.
    Wilson, Douglass and twelve others were jointly indicted, the first count charging that they “unlawfully and wickedly did conspire, combine, confederate and agree together, with violence and with a strong hand, to enter into and upon a certain piece or tract of land situate in the township of White,” &c., (fully describing the premises); “ and with violence and a strong hand, unlawfully to expel, remove and put out” the prosecutors “from possession of the said premises and by force and with a strong hand to hold and keep possession of the same against the peace and dignity "of the Commonwealth of Pennsylvania;” and in the second and third counts with forcible entry and detainer of the premises described as in the first count.
    The jury returned the following verdict: “They find the defendants, E. II. Wilson and B. E. Douglass, on the first count in the indictment, guilty in manner and form as they stand indicted ; and as to the other defendants not guilty on the first count of the indictment ; and as to the second and third counts of the indictment they say they find the defendants not guilty.”
    A motion in arrest of judgment was made on behalf of Wilson and Douglass, the following reasons being assigned therefor: 1st. The count of the indictment on which the defendants have been convicted is fpr conspiracy at common law, if any crime at all is charged, a remedy having been provided for such offence by Act of 31st of March 1860, this remedy should have been strictly pursued and defendants cannot be sentenced under this indictment; 2d. Defendants have not been convicted of any offence for which they can be sentenced under the laws of the Commonwealth: 3d. Defendants having been acquitted on the counts of the indictment for forcible entry and detainer, it is illogical and inconsistent to convict them of a conspiracy to commit forcible entry and detainer or forcible detainer; 4th. The defendants having been acquitted on the counts of the indictment for forcible entry and detainer it is illogical and inconsistent to convict them of conspiracy to commit forcible entry and detainer or forcible detainer when it appeared -on the trial they wrnnt into the. locus in quo and remain there still; 5th. The verdict and the indictment are so inconsistent that sentence cannot be pronounced.
    The motion in arrest of judgment and a motion for a new trial were both argued together. The court, Blair, P. J., overruled both motions, and sentenced each of the defendants to pay a fine of $25 and to be imprisoned for one hour in the county jail and to pay the costs. The defendants, Wilson and Douglass, took this writ, and alleged that the co.urt erred: 1. In overruling the motion in arrest of judgment; 2. In sentencing the defendants under the first count of the indictment; 3. In sentencing defendants on the finding of the jury.

      Harry White and S. M. Clark, for plaintiffs in error.
    rIt may have been the intention of the Commonwealth, in drawing the conspiracy count, to charge the defendants with conspiracy at common law, but, it is submitted this could not be done, since the adoption of the Revised Code of 1860, with such averments of facts as appear in the first count of the indictment. Originally, at common law, a technical criminal conspiracy embraced a very narrow class of cases: Lord Coke, in 3d Inst. 143; 4 Blackstone 136; Jacob’s Law Dict., tit. Conspiracy ; King v. Turner, 13 East 228 ; Commonwealth v. Gallagher, 4 Pitts. L. J. 63. By the 128th section of the Criminal Code, Purd. Dig. 350, the offence of conspiracy is clearly definéd. It embraces elements the common law did not. By it also the common-law punishment was changed. The indictment should have been under this statute. It fails to charge the offence in its terms — omits to charge the acts as dishonestly and maliciously done. The language of the statute should have been pursued and failing in this the indictment is bad and no sentence under the statute can be pronounced, nor can any otherwise for the offence charged: Warner v. Commonwealth, 1 Barr 156 ; Chapman v. Commonwealth, 5 Whart. 427; State v. Abernathy, Busbee’s Rep. 428. The charge was of a conspiracy to commit forcible’éntry and detainer The punishment for that offence may be either fine or imprisonment, and in Hartman v. Commonwealth, 5 Barr 60, it is said, “ a conspiracy to do an act, punishable by statute, cannot be more severely punished than would be the successful perpetration of the offence.” The punishment for conspiracy as fixed by Act of March 1860, makes imprisonment compulsory.

      Weir ¿f Gibson and John N. Banks, for defendant in error.—
    The objections urged by the plaintiffs in error if defects at all are merely formal in their character, and should have been taken advantage of in the mode prescribed by the Penal Code. If the omissions in the indictment to conclude against the statute were considered not merely formal defects, still we submit that it concludes in' proper form and is good in law. Where a statute creates or expressly prohibits an offence, and inflicts a punishment, the indictment must conclude against the form of the statute. But where a statute only inflicts a punishment on that which was an offence before, there is no necessity of mentioning the statute : Commonwealth v. Searle, 2 Binn. 332; White v. Commonwealth, 6 Id. 179; Commonwealth v. Russell, 7 S. & R. 489. In the case in hand the crime charged in the indictment is conspiracy. The statute does not create that offence, but simply changes the common-law punishment.
   Mr. Justice Paxson

delivered the opinion of the court, November 1st 1880.

The defendants below were charged in the first count of the indictment with a conspiracy to enter .upon certain premises described therein, and to hold and keep possession of the same; and in the second and third counts with forcible entry and detainer. The jury convicted them of the conspiracy, and acquitted them on the second and third counts. The court below sentenced them to pay a fine of $25, to be imprisoned in the county jail for one hour, and to pay the costs of prosecution. The record having been removed into this court, the defendants have assigned for error, 1st, That the court below erred in overruling the motion in arrest of judgment; and 2d, That the court erred in sentencing the defendants upon the verdict of the jury.

No sufficient reason has been shown why the judgment should have been arrested. The record is without fault, and the conviction for conspiracy is not inconsistent with an acquittal of the charge of forcible entry and detainer. The legal effect of such a record is to show that the defendants conspired to commit the act, but did not accomplish their object. They may be punished for their unlawful agreement. The gist of the offence in conspiracy is the unlawful combination, and the offence is complete the moment such combination is formed.

We are unable to see any good reason why the defendants should not have been sentenced. We have no question affecting the merits of the case before us. It was said, however, that the indictment was for the common-law offence, while it should have been laid under section 128 of the Code: See Pamph. L. 412. An examination of this section shows that it is confined to conspiracies to cheat and defraud, just as the previous section (127) relates to conspiracies to indict. 'A conspiracy at common law is a much broader offence, and embraces cases where two or more persons combine, confederate and agree together to do an unlawful act, or to do a lawful act by the use of unlawful means. Section 128 of the Code does not, nor was it intended to interfere with the indictment and punishment of a common-law conspiracy.

It is manifest, therefore, that the discrepancies pointed out between the indictment and section 128 are immaterial. The indictment was irot laid under the Code. It does not use its phraseology, nor does it conclude against the form of the statute. The count for conspiracy is laid at commop law.

It is said further that the sentence is erroneous; ■ that while the indictment charges a common-law offence, the learned judge imposed sentence under the statute!

There is no such assignment of error.' The assignments are not to the form of the sentence but to its illegality ; that it was error to sentence the defendants at all. Nevertheless if there were error in this respect we might set aside the sentence and impose the proper one ourselves, or send the record back for that purpose.

For offences under section 128 the law .prescribes- both fine and imprisonment. It is not denied that both may be imposed at common law. But it was contended that at common law it was not compulsory to imprison as well as fine. From this the ingenious argument has been constructed that the court below would not have sentenced the defendants to an imprisonment of one hour unless the learned judge believed he was constrained to do so by the statute; therefore the defendants were sentenced under the statute although convicted at common law. This is assuming that which nowhere appears in the case. The court below gave no reasons for the sentence, and the working of the judicial mind does not come up with the record, nor is it assignable for error. We can only reverse for what the learned judge did, not for what he may have thought. As both fine and imprisonment may be imposed at common law, the sentence was clearly legal whatever may have been the line of judicial reasoning which led to it.

Nor is there any merit in the further criticism that the sentence is erroneous for the reason that it is greater than the statute provides for the completed offence. Hartman v. Commonwealth, 6 Barr 60, and Scott v. Commonwealth, 6 S. & R. 224, have no application. Had the defendants been convicted under the counts charging the forcible entry and detainer they could have been sentenced to a fine of $500 and imprisonment of one year.

Judgment affirmed.


author: Per Curiam.

text:
    Fox versus Fox.
    1. Error cannot be assigned for the omission of a judge to charge in a particular way unless his attention was called to it by a special request.
    2. Errors must be assigned according to the rules of this court.
    October 28th. 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Westmoreland county: Of October'and November Term 1880, No. 251.
    Case by John O. Eox against Levi Fox for malicious prosecution. The trial resulted in a verdict for plaintiff, when defendant took this writ, his assignments of error being as follows :
    1. The court erred in not. saying to the jury whether there was probable cause or not for the arrest and prosecution against the plaintiff below.
    2. The court erred in throwing the whole case upon the jury to say whether there was probable cause or not, as well as the question of the proof of the facts.
    3. The court erred in saying to the jury that when the facts are in dispute or uncertain, it becomes a question for the jury to say if there was probable cause or not.
    4. The court erred in answering the fifth point put by the counsel for defendant below, in not saying to the jury whether this was probable cause or not.

      A. A. Stewart and John F. Wentling, for plaintiff in error.

      H. P. Laird and Hunter $ Klingensmith, for defendant in error. '
   The judgment of the Supreme Court was entered November 8th 1880,

Per Curiam.

There is no error in the charge of which the plaintiff in error can avail himself. Nothing is better settled than that error cannot be assigned for an omission of the judge below to charge in a particular way unless his attention was called to it by a special request. In Laughlin v. Clawson, 3 Casey 328, there was a request for specific instructions. The defendant’s points were substantially affirmed, and the jury were properly instructed as to what in law was probable cause, and as the facts were.in con test they were left to them. Whether the verdict was according to the weight of the evidence it is not our province to consider.

-The errors have not been assigned according to the rules of the court.. It is only necessary to refer to those rules, and to the opinion of the late Chief Justice Thompson in Burkholder v. Stahl, 8 P. F. Smith 371, to which it would be well that the attention of the profession should be again directed.

Judgment affirmed.


text:
    Shearer’s Appeal.
    In proceedings in partition the court decreed that the party to whom the land was adjudged should enter into certain recognisances as specified in the decree. Subsequently it was discovered that there was an error in the decree'as to the nature of the recognisances, and on a hill of review the Orphans’ Court decreed that the surety in the recognisances should enter into' a new recognisance whereby his liability differed from and was enlarged over that incurred by the original recognisances. Held, that, the recognisance could not be thus reformed to the prejudice of the surety.
    October 28tb 1880.
    Before Sharswood, 0. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Orphans’ Court of Westmoreland county: Of October and November Term 1880, No. 250.
    David Evans died seised of a tract of about 200 acres of land and leaving a widow and eight children. One of these children, Lazarus, died intestate, leaving a widow, Mary Evans, but no issue. In May 1875 proceedings were commenced by the heirs of David Evans for the partition of the above tract of land in the Orphans’ Court of Westmoreland county, and the same being found incapable of partition was awarded on November 13th 1875 to W. J. Boss, who was the husband of one of the daughters of said decedent. The court decreed that the said Boss enter into recognisance to pay Ellen Evans, widow of said decedent, the interest annually, during her natural life, on the one-third of the increased valuation, and at her death pay the said one-third to the heirs of said decedent; and also that he enter into recognisance to pay to the heirs of said decedent the remaining two-thirds of the increased valuation, in one year from said date, with interest, &c. And the court further decreed that as to the share of Lazarus, that the said Boss enter into recognisance to pay interest on one-half of his share to his mother, during her natural life, and as to the remaining half, to pay the interest during life to Mary, the widow, during her natural life, and at their respective deaths pay said share to the heirs of decedent, &e.
    Boss took the land and entered into all the specified recognisances in which Hiram Shearer and Hugh Boss were sureties. Hugh Ross died shortly after the recognisances were given. W. J. Ross became insolvent and failed to pay the amount secured by the recognisances. Judgments were then obtained against him arid Shearer by the widow for her arrears of dower, and by several of the heirs, and the tract of land was levied upon and sold. Shearer purchased it at the sheriff’s sale to protect his own interest. Out of the proceeds all that was due on the recognisances was paid, including the interest due the widow of David Evans and that due the widow of Lazarus Evans. Subsequently the widow of Lazarus filed a bill of review which, after setting forth the above facts, averred, “that the said.clerk further failed and neglected to require and obtain of and from said Ross a recognisance to secure to your petitioner, widow, as aforesaid, in event of her surviving Ellen Evans, mother as aforesaid, the payment, annually, during her natural life, of the one-half of one-third of the share, purpart or dividend of said Lazarus, deceased; and also to pay the said share, to wit, the one-half of the. one-third, as aforesaid, at the death of your petitioner, in the event of her surviving said Ellen, as aforesaid, to the heirs of said Lazarus .Evans, deceased. Wherefore your petitioner prays the court to review said decree, and order W. J. Ross, with his surety, H. Shearer, to enter into recognisances in accordance with a - true calculation' to be made and approved by the court, correcting the errors complained of in the bill.”
    An auditor, Gr. D. Albert, Esq., was appointed, who reported in favor of the prayer of the petition. Shearer excepted, and the court, Hunter, P. J., dismissed the exceptions and made a decree in' accordance with the prayer of t'he ^petition. From this decree Shearer took this appeal.

      H. P. Laird, for appellant.
    It is assumed that the Orphans’ Court had jurisdiction to compel the surviving surety in the other recognisances to also acknowledge himself indebted to the widow of Lazarus for her interest, and this without any obligation on the part of the deceased co-surety to share the responsibility. We contend there is no precedent for such a stretch of power in any court, much less in one 'of limited jurisdiction, such as the Orphans’ Court. These sureties, after signing tbe one-half of the recognisances, might have refused to sign the others. And if they signed those remaining under compulsion of attachment and imprisonment, such obligation would lack one of the essential elements of a valid contract, namely, the free and voluntary consent of the party contracting.

      Hazlett and Edgar Cowan, for appellees.
    Shearer wa.s one of the sureties of W. J. Ross, the heir who took the land. He is also now the terre-tenant of the land bound by . the decree, and liable as such for the valuation money as well as personally. Hugh Ross, his co-surety, being, dead, his burden is thrown first, upon the land, second, upon Shearer, his co-surety who survived him, whose remedy, if he is damnified, is over against the estate of said Hugh for contribution. The decision of this court in George’s’Appeal, 2 Jones 260, upon the authority of the Orphans’ Court to review its proceedings and correct errors and mistakes, goes much further than the court below did in this case.
   Mr. Justice Sterrett

delivered the opinion of the court, November 8th 1880.

The main question involved in the several assignments of error is, whether the facts were sufficient to justify the Orphans’ Court in vacating the recognisance given to secure the interest of Mrs. Evans, the elder, in the real estate of her deceased husband, and in requiring appellant, as surviving surety in the recognisance, to enter into a new obligation in lieu thereof, and also to give a recognisance to secure the interest of appellee, as widow of Lazarus Evans in the share of the valuation money to which he would have been entitled if living, &c. We are clearly of opinion that they were not. The personal liability of appellant, either to the widow or any of the heirs of David Evans was measured by the recognisances to which he became a party in 1875, as one of the sureties of W. J. Ross to whoip the real estate was then allotted ; and the court was powerless to impose on him any obligation which he did not then or afterwards voluntarily assume. The recognisances that were given by Ross and hi.s sureties were all that were then demanded, and, as all parties supposed, in due form. If the land, of which appellant subsequently became ter-re-tenant, continues bound in his hands it must be by virtue of the original decree, or the recognisances given in pursuance thereof. It appears that suit was brought on one or more of the recognisances and prosecuted to judgment and execution’under which appellant purchased the land now in his possession. The effect of the sale, thus made, was to divest the liens in favor of the heirs and both of the widows, except as to the annual interest thereafter to become due and payable to each of the widows, and the principal on which that interest is payable. The testimony of appellant was that he purchased the land for the purpose of protecting himself as surviving surety in the recognisances; that the respective heirs received the full amount then due and payable to them by the terms of the recognisances, and that he paid each of the widows the arrears of interest due her in full. So far then as appellant is concerned, it is clear that he cannot be called upon to assume, against his will,, any new or additional obligation, nor- can the land in his possession be charged with any encumbrance that was divested by the sale. The arrears of interest, in the nature of dower, to each of the widows, and the amounts, past due and payable to each of the six heirs, were thus divested, and appellant, as purchaser at a judicial sale, took the land subject only to the fixed encumbrances, viz.: the interest thereafter due to the two widows, and the principal on which it is payable; and the record as it then stood must be resorted to for the purpose of determining what those encumbrances were. After the recognisances passed into judgment which was finally executed by the sale of the land on which they were a lien, it is too late to go behind all these proceedings and seek to impose additional burdens on the sureties in the recognisances or on the land in the hands of the sheriff’s vendee. And, moreoyer, if appellant as surety paid part of the recognisance given to secure the widow’s interest, he has a right to call upon the personal representatives of his co-surety for contribution, and hence he might be seriously prejudiced by the decree vacating the recognisance. The heirs also might be injuriously affected, but they are not here complaining; and it does not appear that they were made parties to the proceeding.

The errors, in the original proceeding, of which the appellee complained, are quite apparent, but they are not in any degree chargeable to appellant or his principal in the recognisances. They gave the recognisances in the form in which they were presented. If the parties who were prejudiced by the errors of the court or its clerk failed to discover them or slept on their rights until after the death of one of the sureties, the insolvency of the principal and sale of the land, by virtue of proceedings on one or more of the recognisances, it is too late to insist on such modification of the original proceedings as will impose any additional burden on the surviving surety or on the land in his possession as terretenant. But if, upon notice to all parties interested, and without prejudice to either of the sureties, the original decree can be so amended as to more clearly define and better secure the interest to which each of the widows is entitled, there is no good reason why it should not be done; and to the end that such further proceedings may be taken in the court below, the decree should be reversed without prejudice. We see nothing in the circumstances of the case to justify the imposition of the costs or any part thereof on the appellant..

The decree of the Orphans’ Court is reversed at the costs of the appellee, and the record is remitted for such further proceedings as may be taken in accordance with the foregoing opinion.