text:
    Harrison et al. versus Collins.
    1. One not personally interfering or giving directions respecting the manner of work, but contracting with a third person to do it, is not responsible for a wrongful or negligent act in the performance of the contract, if the act agreed to be done is legal.
    2. If one renders service in the course of an occupation representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished, it is an independent employment.
    3. The fact that a contractor is paid by the day does not destroy the independent character of his employment.
    4. The owner of a sugar refinery employed a master rigger to remove certain heavy machinery for use therein from a railroad train to their place in the refinery. In the prosecution of the work he opened a coal-hole in the pavement. in front of the refinery, into which to place a beam to secure a purchase for his tackling. After this purpose was accomplished, the beam was removed, and the hole remained opened a few moments, in which interval a lad walked into it and was severely injured. The owner of the refinery did not interfere in any manner with the work, and the entire direction of the same was under the control of the rigger, who was paid by the day. Suit was brought on behalf of the lad against the owner of the refinery: Held, that he was not liable. Held, further, that the own'er would not be liable for this unauthorized uncovering of the hole until such time had elapsed, under all the circumstances, that a reasonable and prudent man ought to have discovered its dangerous condition.
    January 23d 1878.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkev,-JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1876, No. 223.
    Case, by John Collins, by his next friend, Daniel O’Keefe, against Charles C. Harrison, Theodore A. Havemeyer and others, trading as Harrison, Havemeyer & Co?

      The narr. alleged that the defendants were the owners or occupiers of certain premises on the east side of Water street, below Shippen street, Philadelphia, fronting on a public footway or highway, in which there was a coal-hole opening into the cellar on defendants’ premises ; that the defendants, not regarding their duty in the premises, on May 7th 1875, wrongfully and unjustly permitted the coal-hole to be open and uncovered, by means whereof the plaintiff, whilst lawfully passing over the footway, without any negligence on his part, unavoidably fell into the hole, suffered damage to his body, and lost the sight of one eye, &c. The damages were laid at $5000.
    The plea was, “Not guilty.”
    At the trial, before Elcock, J., it appeared that the defendants were the owners of a lot, and large sugar refinery thereon erected, at Swanson and Almond streets, in the city of Philadelphia. In May 1875, they had purchased two large iron coolers, weighing from seven to ten tons each, to be used in their business. They were brought by railroad to the north end of the railroad track on Swanson street, whence it was necessary to move them along the pavement and into the refinery. The distance they were to be moved was about eighty-eight feet. The defendants employed one John Connor, a master rigger, to move the coolers from the railroad tracks and place them in position in the refinery. Eor this work he was to be paid four dollars per day for himself and for each of the assistant riggers and for the use of his rigging. When he needed any additional men, he was to have the assistance of some of the men about the refinery. From the time he commenced until he finished the work, Connor controlled all the men, gave all the orders, and had the sole direction of whatever was done.
    Under the sidewalk, in front of the refinery, was a vault for the storage of coke or coal. This -vault had an opening in the sidewalk on Swanson street, constructed in accordance with the requirements of an ordinance of the city, which provides that said opening shall be covered by an iron plate or grating, made of iron bars of at least an inch in thickness. This opening or hole is twenty inches in diameter, and is securely fastened by a heavy cast-iron cover, weighing about sixty pounds. At the bottom it was fastened with lock and key.
    Connor commenced the work by moving the smaller cooler along Swanson street, resting it partly on the curbstone and partly on the pavement. In order to do this, he put wooden rollers under the cooler, and fastened ropes to it, and used the ordinary tackle of riggers. For the purpose of obtaining a purchase, he directed his men to open the coal-hole, and to put a strong piece of timber in it, and across and below the pavement, and fasten their ropes to it. This they did, and by means of the tackle they drew the cooler as far as. they could, with this purchase, to within five or six feet of the hole. The cooler was about ten feet long by five feet wide and five feet deep. It was thus drawn to within a few feet of the coal-hole a little before 12 o’clock noon. The rigger then ordered his men to take the tackle from the coal-hole, and pull it around the corner of Bainbridge and Swanson streets, and thus get a new purchase. In doing this, the hole remained open from three to five minutes. In this interval the plaintiff, a boy about thirteen years old,-walked into it and was injured.
    The main defence was, that the employment of Connor was an independent one, and that consequently the defendants were not responsible for his acts.
    The. defendants’ second point was as follows, to which is appended the answer of the court:—
    That if the jury find that the injury to the plaintiff was caused by the negligence of Connor, and his employment was an independent one, the defendants are not liable, and the verdict must be for the defendants.
    Ans. “I cannot instruct you in that language. If Connor was simply the servant .or agent of the defendants,.they are answerable for his negligence.* But even if his employment was an independent one, if he used this hole or opening in defendants’ sidewalk for his own convenience, by the permission of the defendants, either express or implied, then the defendants would be liable, the care and control of the hole not being incident to his employment. If without their permission, then as a trespasser the defendants would be liable for the acts resulting. If the hole was left open for any time after its use was ended by Connor, then the defendants are liable.”
    Their third point and the answer of the court were as follows:—
    That the verdict must be for the defendants, the uncontradicted evidence in the case showing that Connor’s employment was an independent one. The negligence, if any, from which the accident occurred, was during this independent employment.
    Ans. “I cannot so charge you, and refer you to my general charge in that regard.”
    In their general charge, the court, inter alia, said:—
    “The defendants say, ‘we employed in the moving of these machines a competent rigger, who, with his workmen, was paid $4 per day, who was assisted by our workmen from the factory, but all at the same time under the guidance of Connor, the rigger.’
    “ I do not think it becomes important in this case to determine whether that was an independent employment within the legal definition or not, whereby the responsibility was shifted from the defendants to Connor, because Connor’s undertaking was simply to move and hoist this machinery, and he would be in any event only liable within the scope of his employment.

      “If Connor, in his employment, for the mere purpose of convenience, or an easy way of obtaining a purchase for his rigging, used the hole or opening referred to, by express or implied permission of the defendants, then for the time being he became their agent, because the care and control of the hole was not necessarily incident to his employment.
    “If he used it without their permission, then he became a wrongdoer, and defendants, not protecting such a species of property as this hole from such acts, would be guilty of negligence, and liable for any injury occurring during the time. But whether the defendants impliedly gave permission, or whether Connor was a trespasser during the time he was using the hole or the opening, the instant that he ceased to use it its control reverted to the defendants, and from that instant they were bound to protect it, there being no undertaking on the part of Connor to see to its subsequent care or management. He who, being the owner of property, seeks to shift the responsibility for its care or management, must show that he has parted with the power or authority over it, or the superior control upon which it falls. . If, then, you find that this occurred after the ropes were taken out of the hole, and before the cover was placed upon it, the defendants would be responsible if the plaintiff was otherwise entitled to recover.”
    The verdict was for the plaintiff for $3000, and after a rule for a new trial had been discharged (Thayer, P. J., dissenting), judg-. ment was entered thereon. The defendants then took this writ, alleging that the court erred in the answer to their second point, in the portions of the charge quoted, and, lastly, in the answer to their third point.

      George JunJcin and George W. Biddle, for plaintiffs in error.—
    In their instructions to the jury, the court below erred, first, in not telling them that, as the uncontradicted evidence showed the rigger’s employment to be an independent one, the defendants were not liable for the result of an accident occurring during this independent employment. The evidence clearly demonstrated that the accident was occasioned solely by the acts of Connor and his men. He was employed as a master rigger to do a specifie job, over which he had assumed entire control, and in regard to which he gave every direction. He was in no way, directly or indirectly, interfered with, and everything was left to his skill and judgment, untrammelled even by a suggestion. He was clearly a contractor, and not a servant, and his employment an independent one: Pack v. Mayor, 8 N. Y. 222; Kelly v. Mayor, 11 Id. 432. And the fact that such an employee is paid by the day makes no difference : Corbin v. America Mills, 27 Conn. 274; Forsyth v. Hooper, 11 Allen 419. The true test as to what is an independent employment is ’given in Shearman and Redfield on Negligence, sect. 74
      : Ascertain AYhether he renders the service in the course of an occupation representing the will of the employer only as to the result of his Avork, and not as to the means by Avhich it is accomplished.” And applying this test to the facts in this case, it will be conclusively demonstrated that Connor’s employment Avas an independent one; that he Avas in no sense the agent or servant of the defendants, and therefore they are not responsible: Hilliard v. Richardson, 3 Gray 349; Barry v. City of St. Louis, 17 Mo. 121; Blake v. Ferris, 1 Selden 48 ; Painter v. Mayor of Pittsburgh, 10 Wright 221; Potter v. Seymour, 4 Bosw. 140, 148; Allen v. Willard, 7 P. F. Smith 374; Hunt v. Railroad Co., 1 Id. 475; O’Rourke v. Hart, 7 Bosw. 511; Vanderpool v. Husson, 28 Barb. 196.
    The fact that a few of the laborers employed in the refinery ■assisted in pulling at the ropes does not alter the matter, as they were and became the servants, pro hac vice, of Connor, and acted entirely under his orders. The opening of the coal-hole was not only without the authority, express or implied, of the defendants, but without their knowledge.
    The court erred secondly, in assuming throughout that the fact of the coal-hole being opened or uncovered at all constituted a nuisance, by reason of which a liability was fastened upon the defendants. In other words, a citizen who has a coal-hole in his pavement must have it so constructed that it Avill be physically impossible for a wrongdoer to open it. It is negligence unless he protects the hole from its being opened by any trespasser. This is novel doctrine, and such as has never been held in this state, or anywhere else, where the privilege of having such a coal-hole is accorded and regulated by law. The right to these vaults under the pavement has been recognised by universal use, as Avell as by legislation. They are very useful, and add to the value of the property, and unless they are allorved to be opened and used they lose their value.
    The court erred thirdly, in -assuming, against law and against common experience, that “the instant the rigger ceased to use the coal-hole for the purpose of a purchase, its control reverted to the defendants, and they were bound to protect it.” •
    Is it reasonable that an owner of property shall have no time given him to undo the acts of a mere trespasser upon his property ? Unless he instantly sets right what a bad man has set wrong, he must be held liable for all that may result from the wrongful act. Surely he is only bound to exercise the care of a prudent, careful man over any of his property. If this new doctrine be correct, then every house-OAvner must be himself on his pavement, or have some one there, to watch for and undo instantly the wrongful acts of every trespasser.

      Pierce Archer, Jr., and Lewis O. Cassidy, for defendants in error.
    — The unlawful act of opening or leaving open a coal-hole on a public highway, or using it, or permitting or suffering it to be opened and used, for any other purpose than as a coal-hole for the reception of coals, was such omission of his duty to the public as rendered the owner and occupant liable, even though it was opened by one bearing the relation of an independent contractor or technical trespasser: Pickard v. Smith, 100 E. C. L. R. 470; Whiteley and Wife v. Pepper, 36 Law Times Reports 588. To constitute an independent employment, the contractor must be engaged in a lawful work and have exclusive control thereof: Homan v. Stanley, 16 P. F. Smith 464; Baird v. Pettit, 20 Id. 477; Reed v. City of Allegheny, 2 W. N. C. 189; West Chester Borough v. Apple, 11 Casey 284.
    Even if Connor had been an independent contractor, yet both he and defendants, or either, are liable to the plaintiff for the unlawful act of leaving the coal-hole open on a public highway ; it was a public nuisance: Shearman and Redfield on Negligence, sect. 84; McCleary v. Kent, 3 Duer 27; Ellis v. Sheffield Gas Co., 2 Ellis & B. 767; Gray v. Pullen, 5 Best & S. 970; Wiswall v. Brinson, 10 Iredell 554; Irvine v. Wood, 51 N. Y. 224; Congreve v. Morgan, 18 N. Y. 84.
    May 6th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

This was an action by the defendant in error to recover damages for injuries which he sustained by falling into a coal-hole of the plaintiffs in error. They were sugar refiners, occupying buildings on Swanson street, in the city of Philadelphia. They purchased two large iron coolers, to use in their business. The coolers were brought by rail to within about one hundred feet of their works. They then employed John Connor, a rigger, to take thé coolers from the cars and place them in their building. He was to be paid four dollars per day for his own services, and for each of his three assistant riggers. On each off these three men he made a profit of fifty cents per day. He was to furnish the ropes, hoisting apparatus, and all the necessary machinery incident to his occupation. Yet for the use of these he appears to have received an additional sum. The distance to move the coolers being so short, he moved them with skids and rollers, over the sidewalk. While so moving them he uncovered the coal-hole, and left it open, by reason of which the defendant was injured. The question presented is, whether the plaintiffs in error are liable for the injury thus sustained.

As one general principle pervades all the assignments, they will be considered together. The learned judge thought it unimportant whether Connor was merely the servant or agent of the plaintiffs, or whether his employment was an independent one; that if he used the hole by either the express or implied permission of his employers, they were liable; or if he used it without their permission, and as a trespasser, and left it open “for any time,” after so using it, they were liable. In this we think there was error. If Connor was their mere agent or servant, they would be liable for his negligent manner of performing the work. Yet, if his employment was an independent one, they are not so liable. This distinction has been rocognised in numerons cases. Among others may be cited Painter v. The Mayor, &c., of Pittsburgh, 10 Wright 213; Hunt v. Pennsylvania Railroad Co., 1 P. F. Smith 475; Allen v. Willard, 7 Id. 374.

It is well settled in England and in this country, that persons not personally interfering or giving directions respecting the manner of the work, but contracting with a third person to do it, are not responsible for a wrongful or negligent act in the performance of the contract, if the act agreed to be done is legal: Gray & Wife v. Hubble & Pullen, Law Jour. Rep., vol. 32, part 8, N. S.; Hilliard v. Richardson, 3 Gray 349; Blake v. Ferris, 1 Selden 48; Painter v. The Mayor, &c., supra. The fact that the contractor is paid by the day does not necessarily destroy the independent character of an employment: Forsyth v. Hooper, 11 Allen 419; Corbin v. America Mills, 27 Conn. 274. If one renders service, in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished, it is an independent employment: Shearman & Redfield on Neg., sec. 74; Pack v. The Mayor, &c., of New York, 4 Selden 432; Barry v. The City of St. Louis, 17 Mo. 121.

In the present case the evidence was most ample to submit to the jury to find that Connor's employment was an independent one. It does not appear that the plaintiffs in error reserved any right to advise or direct as to the manner in which the coolers should be moved, nor that they assumed or exercised any such authority during the progress of the work. It is not pretended that the moving was an unlawful work. As to Connor it was a distinct employment in the line of his occupation. His employers stipulated for the result only. He alone superintended and directed the manner in which his assistant riggers should work. He had the exclusive control and direction of the plaintiffs’ men, who assisted him. He testifies that he did the job according to his own' views. Under his directions the coal-hole was opened. It is not shown that the plaintiffs in erroi’, or any one acting under their directions, were present, or had knowledge that it was opened. It is not claimed to have been opened by their express authority. How could their permission be implied ? We see no necessary connection between the work to be done and the use of this coal-hole in performing it. If the jury should think there was no reasonable presumption that Connor would, use the hole in such a manner as to uncover it, the plaintiffs in error were guilty of no negligence in not stationing a man there to prevent its being opened.

The coal-hole appears to have been in all respects constructed and protected according to the city ordinance. Its cover was of solid cast-iron, weighing about sixty pounds. At the bottom it was securely fastened. Certain it is that the coal-hole was not made nor maintained for any such use as it was subjected to by Con-nor. If, then, it should be found that his employment was an independent one, and that he had no implied permission to use it in the manner in which he did use it, or if Connor was a trespasser while so using it, the plaintiff would not be liable for an injury sustained by the defendant, on the instant that Connor ceased to use it. While it is true, as the learned judge said, “the instant that he ceased to use it, its control reverted to the” plaintiffs in error; yet it does not follow “from that instant they were bound to protect it.” This is imposing too harsh terms on them. If they had no expectation that the hole would be uncovered or thus used, and no knowledge that it was, they should not be held liable until such reasonable time had elapsed, under all the circumstances, that a careful and prudent man ought to have discovered its dangerous condition. If, after such reasonable time had elapsed, and they failed to make the hole secure, they cannot be relieved from the consequences of their own negligence, by showing the previous trespass of Connor. It then follows that the assignments, except the last, are substantially sustained.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Wister’s Appeal. Humphreys’s Estate.
    In the absence of an agreement to waive his commissions, a trustee is not estopped from claiming them in his final account, because of the fact that he had for five years rendered informal semi-annual accounts to his cestui que trust, without deducting his commissions.
    January 23d 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from the Orphans’ Court of Philadelphia county r Of January Term 1877, No. 191.
    Appeal of W. Wynne Wister, Jr., executor of L. W. Humphreys, deceased, from a decree of the court allowing commissions to A. A. Humphreys, trustee.
    By the will of Charles Humphreys, deceased, dated July 1870, he left all his property to his nephew, A. A. Humphreys, to pay the net income thereof, for life, to his widow, L. W. Humphreys, and at her death the testator gave his whole estate to the trustee and his heirs. The trustee was also appointed executor of testator’s will. No trust accounts were ever filed in court. Income was collected semi-annually, and statements rendered, which were signed by the trustee and by the cestui que trust. These were accounts of income. No commissions had ever been charged in any [of these statements. The cestui que trust died August 11th 1876. At the time of her death the semi-annual interest, due on the 1st of July next previous, had not been paid over to the cestui que trust. The trustee filed his first and final account in the Orphans’ Court, October 5th 1876, and claimed a commission of five per centum ($2684.64) upon the amount of income actually collected ($53,692.86) during the five years of the trust, less certain small expenses attending such collection, and craved allowance out of the fund then in his hands.
    Wister, the executor of L. H. Humphreys, objected, but the auditing judge ( Hanna, J.,) allowed the claim. The executor filed exceptions, and it having been agreed that the exceptions should be dismissed pro forma, a decree was made accordingly, when the executor took this appeal.

      H. T>. Miller, A. Sidney Biddle and George W. Biddle, for appellant.
    — The right of a trustee to payment for services rendered is a special and peculiar right to reimburse himself for trouble, by retaining from the income, as it passes through his hands, the commissions which the law allows. If he does not do so, he waives his right, and cannot seek to obtain it from some other fund. Even though the trustee may have managed the estate in such a way as to greatly enhance its value to the remainder-man, he cannot, if he chooses to pay all of the income to the life-tenant, subsequently charge the commissions upon the principal: Biddle’s Appeal, 2 Norris 340. If such a charge cannot be made against the remainder-man, who has been benefited, much less should it be made against the heirs or legatees of the life-tenant, who has had no benefit whatever. Where a trustee has for years rendered semiannual statements to his cestui que trust, of which duplicates were signed by both, and a copy retained by each of them, the latter has a right to consider these statements as settlements in favor of all claims, for in them were charged the expenses attending their collection, and other charges in relation thereto. There was no evidence that the cestui que trust was ever informed that commissions would be charged, and the length of time that elapsed rebuts any presumption that they would be: Barton’s Estate, 1 Pars. Eq; C. 24.

      Hampton L. Garson, for appellee.
    — A trustee has no special right to reimburse himself for his trouble by retaining commissions from the income as it passes through his hands. The amount of compensation due to a trustee depends upon the circumstances of each case. The rate has never been definitely established. It is a matter resting in the sound discretion of the court, dependent upon the amount of labor and shill expended by the trustee, and the risk and inconvenience attendant upon the discharge of his duties: Askew v. Odenheimer, Baldwin’s Rep. 380; Burr v. McEwen, et al., Id. 154; Pusey v. Clemson, 9 S. & R. 209; Walker’s Estate, Id. 225; McElhenny’s Estate, 10 Wright 347; Perry on Trusts, vol. 11, §§ 916, 918; Bispham’s Eq., § 144, p. 148; Spangler’s Estate, 9 Harris 337; Copely’s Appeal, 1 Norris 143.
    A trustee does not forfeit his right to commissions by permitting them to remain uncollected until the account is brought into court for an audit. No such decision can be found. The utmost extent to which the cases go is this: That compensation is to be regarded as earned at the time the services were rendered for the purpose of surcharging the trustee with interest upon balances remaining in his hands uninvested: Say v. Barnes, 4 S. & R. 112; Callaghan v. Hall, 1 Id. 241; Sterrett’s Appeal, 2 P. & W. 419; Walker’s Estate, 9 S. & R. 223; Harland’s Accounts, 5 Rawle 323; McElhenny’s Appeal, 10 Wright 347; Adams’s Appeal, 11 Wright 94; Parker’s Estate, 14 P. F. Smith 307.. Biddle’s Appeal, 2 Norris 340, has no application to the facts of this case. The corpus of the life-tenant’s estate is not looked to for payment. The claim is made to payment out of an instalment of income still in the hands of the trustee. The semi-annual statements were not formal accounts, nor were they formally accepted by the life-tenant. The signature of the trustee merely verified or identified the accounts. There is no proof that the trustee ever told the cestui que trust that he did not intend to charge commissions. The real intention of the parties is unknown. Certainty is essential to all estoppels. Certainty existed in Barton’s Estate. It was found as a fact that the trustee never intended to claim any commissions.
    February 4th 1878,
   The judgment of the Supreme Court was entered, "

Per Curiam.

— The statements rendered in this case of the semiannual receipts and disbursement of the income had not the effect of accounts stated between merchants or other dealers. The legal duty of accounting, in the proper court, is inconsistent with such an effect. In the absence of an agreement to waive commissions, the mere holding over of them for a proper account would be no waiver. The owner of the income had the advantage of the use of her whole income, and unless she had been so misled by the other acts of the accountant as to give these semi-annual statements the effect of an estoppel, the mere delay in claiming the commissions was not in itself an act of estoppel. We do not discover any error in allowing the commissions in the final account settled according to law.

Decree affirmed, with costs to be paid by the appellant, and the appeal is dismissed.


author: Mr. Justice Mercur

text:
    Brooke versus The Commonwealth, ex rel. Jenkins.
    1. Art. 8, sect. 3, of the Constitution, requiring all elections for city, ward, borough and township officers for regular terms of service, to be held on the third Tuesday of February, does not alter the Act of April 27th 18(34, which declares that in case of a vacancy occurring in either branch of councils, the qualified voters of the ward at the next general election shall elect a person for the unexpired term.

    2. The Act of March 10th 1875 provides that all members of councils to be elected at the February election thareafter, whose term of office would, under existing laws, expire prior to the first Monday of April next, shall continue in office from the date at which such term would otherwise expire, until the first Monday of April next ensuing. D., a member of Select Council of the city of Philadelphia, elected in 1873 to serve until the first Monday of January 1877, resigned in July 1875, and B. was elected in February 1876, to fill the vacancy. Held, that the term of B. ended on the first Monday of January 1877, and it was regularte elect in February 1876 a member for the new term, commencing on the first Monday of January 1877, and the Act of 1875 extended the new term for three months and not the unexpired term.
    January 23d 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of July Term 1877, No. 107.
    Quo warranto by the Commonwealth, at the suggestion of Theodore F. Jenkins, against John G. Brooke, to show by what warrant he held the office of select councilman for the Fourteenth ward of the City of Philadelphia.
    The suggestion averred ip substance that on the 8th of July 1875, B. W. Downing, a member of Select Council from the Fourteenth ward of Philadelphia resigned said office, whereby there became a vacancy to be filled at the next municipal election; that by the laws existing at the time of the election of said Downing his term of office would have expired on the first Monday of January 1877; that by the Act of March 10th 1875, “all members of councils * * * to be elected on third Tuesday of February next, or in any year thereafter, whose terms of office would, under existing laws, expire prior to the first Monday of April, shall continue in office from the date at which said term would otherwise expire, until the first Monday of April next ensuing thereto; and the terms of their successors shall begin on the first Monday of April, and shall continue for the period now fixed for the duration thereof, by existing laws, in each particular case; and hereafter all elections for offices which shall be vacant on the first Monday of April shall he held on the third Tuesday of February next preceding theretothat on January 24th 1876, the sheriff of Philadelphia county issued a proclamation that on the third Tuesday of February 1876, an election would be held for a member of Select Council fo'r the unexpired term of said Downing, resigned, and until 'the first Monday of April 1877, and that on said day Erooke, the respondent, was elected, and forthwith entered on the duties of his office ; that by virtue of said Act of 1875 the said unexpired term for which Erooke was elected was continued until the first Monday of April 1877, and the term of his successor would begin on the said first Monday of April 1877; that on the 22d of January 1877, the sheriff issued a proclamation that on the third Tuesday of February 1877, an election would be held for members of Select Council for said ward, to serve for three years from the first Monday of April 1877; that at said election the relator was elected; that said Brooke has since the first Monday of April 1877 unlawfully held said office of select councilman from said ward; that at the meeting of Select Council on April 5th 1877, the relator presented his certificate of election and requested to be sworn in as a member thereof, but was refused admission by reason of the usurpation of said Brooke, wherefore he prays the process of the law against him, &c.
    The respondent answered: “ That on the third Tuesday of February 1876 respondent was duly elected to fill the said office for the remainder of the term for which the said Downing was elected; that it is not true, as in said suggestion alleged, that respondent was elected to serve until the first Monday of April 1877, but until the first Monday of January 1877, the date on which the said Downing’s term expired; that under the provisions and prohibition contained in section 13 of article 3 of the Constitution of the Commonwealth of Pennsylvania, wherein it is provided: ‘No law shall extend the term of any public officer,, or increase or diminish his salary or emoluments, after his election or appointment,’ the term of. the said Downing was not affected by the provisions of the Act of Assembly quoted and referred to in the said suggestion, and the said Brooke was elected to succeed the said Downing in the term for which he was elected, and to serve out the remainder thereof; that the said term, ending as aforesaid, on the first Monday of January 1877, and there being no other municipal election than the one above named before that date, it became necessary to elect a person to serve as select councilman from the Fourteenth ward, for the new term commencing on the first Monday of January 1877, and continuing for three years and three months, in accordance with the provisions of the Act of 1875 above mentioned, which extended the term .for three additional months; that on the said third Tuesday of February 1876, said Brooke was duly and lawfully elected to serve as select councilman for the said new term, commencing on the first Monday of January 1877 ; that a certificate of his election was duly made and issued to him, and that on the first Monday of January 1877, aforesaid, he was duly qualified, and took his seat as a member of Select Council from the Fourteenth ward aforesaid, and is now serving in said office; that at the time the said relator pretends that he was elected there was no vacancy, and his election was irregular and unlawful.”
    The Commonwealth demurred to this answer, assigning as a reason therefor that the alleged election of John Gr. Brooke, the respondent, on the third Tuesday of February 1876, to serve as a select councilman for the Fourteenth ward, for‘ three years and three months, from January 1st 1877, was contrary to the provisions of the Act of March 10th 1875, and was therefore illegal and void.
    The court entered judgment for the Commonwealth on the demurrer. A re-argument was ordered and the same judgment was again entered, Briggs, J., dissenting at the entry of each judgment. The respondent took this writ, assigning this action of the court for error.

      George 8. Graham and Charles IT. T. Collis, for plaintiff in error.
    — At the time of the passage of the Act of 1875, there were two statutes in existence regulating the manner of filling vacancies in councils ; that of April 27th 1864, Pamph. L. 689, as follows: “ That in case of a vacancy occurring hereafter in either branch of the councils of Philadelphia, the qualified voters of the ward at the next election shall elect a person for the unexpired termand that of the 20th of May of the same year, Pamph. L. 912, which makes a like provision.
    When these acts were passed there were no spring elections. They were instituted by the néw constitution, art. 8, sect. 3. “ All elections for city, ward, borough and township officers, for regular terms of service, shall be held on the third Tuesday of February.” There is nothing in this language which interferes with the established system of filling vacancies for unexpired terms at the first election succeeding the vacancy. On the contrary, the framers of the constitution purposely avoided interfering with it, by use of the words “for regular terms of service.” The constitution having fixed when the election for regular terms should be held, it became necessary for the legislature to fix when the terms should commence, as under the existing state of things the man elected in February would not enter upon his office until the succeeding January. Therefore, the Act of March 10th 1875 was passed, providing that thereafter the terms should begin and end on the first Monday of April. What terms? “Regular terms,” not unexpired terms or fractional terms. Unexpired terms and fractional terms being already much better provided for, to wit: to be filled at the very next election succeeding the vacancy.
    There is nothing inconsistent in the Acts of 1864 and 1875. One applies to unexpired and the other to regular terms. The new term for which respondent was elected began on the first Monday of January 1877, for three years and three months, by the Act of 1875.

      Pierce Archer and P. P. Wwrell, for defendant in error.—

      Term is a generic word, and includes regular, irregular, full and unexpired terms.- If unexpired terms are not to be included, the legislature would have so provided. And yet the court is told that the word term in the Act of 1875 includes the greater (a full term), and excludes the less (an unexpired term).
    The touchstone of the case is, “did Brooke by the election of 1876 take the office for a term?” Taking the office for a term, which would have ended January 1st 1877, were it not for the Act of 1875, that act continuing the term until the first Monday of April 1877, he was not to be elected for the term for which Downing would have held, but for the term fixed by law. The fact that Downing had been any select councilman from the Fourteenth ward did not divest the legislative function. Downing’s term was not extended, and Brooke had no term when the Act of 1875 first applied.
    May 6th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

The contention in this case must he decided by the construction to be given to the Act of 10th March 1875.

A reference to some of the laws changed by this act will assist in giving a clearer understanding of its intent and purpose.

The Act of 21st March 1861, Pamph. L. 165, directed the election of members of councils, in the city of Philadelphia, to be held on the second Tuesday of October in each year. It declared that each ward should have one member of Select Council, who should serve for three years from the first Monday of January next succeeding their election, and that one-third of Select Council should be chosen each year.

Under this law, in October 1873, Downing was elected a member of Select Council, for the term of three years from the first Monday of January 1874. Hence, not only the term of Downing, but the term of all the class or third of which he was a member, would expire on the first Monday of January 1877.

While thus holding an office, the term of which was fixed by the Act of 1861, the constitution of 1874 went into effect. Article 8, section 3, required all elections for city, ward, borough and township officers, for regular terms of service, to be held on the third Tuesday of February. Article 3, section 13, declared that no law should extend the term of any public officer after his election or appointment.

Thus the constitution designated the only time at which a member of the councils could be elected for a “regular term,” but imposed no restraint on legislative power prescribing the time when an election might be held to fill a vacancy for the unexpired term ; nor did it forbid the enactment of any law lengthening the term of such officers thereafter to be elected, provided it was done prior to their election ; and it left to legislative discretion to fix the time for them to enter on the duties of their office.

The Act of 1861 did not authorize the election of a member of councils to fill a vacancy, to be held at any other time than at the general election in October.

In case the vacancy occurred soon after the election, it would leave the office vacant for nearly a year. To obviate this objection, the Act of 27th April 1874, Pamph. L. 638, was passed. It declared, “ in case of a vacancy occurring hereafter, in either branch of the councils of Philadelphia, the qualified voters of the ward, at the next election, shall elect a person for the unexpired term.”

In July 1875, Downing resigned his office. The vacancy thus created should have been filled by an election in October of the same year. The fact that it was not filled until the election in February following, does not affect the question we are now considering. The present purpose is not to decide when the official term of the person elected to fill the vacancy began, but when it ended.

It would seem the words of the Act of 1874 make this sufciently clear by declaring the voters shall elect a person “ for the unexpired term.” It certainly was not intended to give to the locum tcnens, or substitute, an office to continue beyond the end of the term of the one whose place and unexpired term he was elected to fill. The act did not contemplate any disarrangement of the three classes, nor of the time when the term of each should expire.

Under the law in force at his election, Downing’s term expired in January 1877. The constitution of 1874 forbade its extension by legislative enactment. In the absence of language clearly indicating such an intent, we will not assume the legislature intended to extend the term of the person elected to fill the vacancy, beyond the time fixed by law for the expiration of Downing’s term. To extend it beyond would be more than to fill the vacancy which his resignation created.

This brings us to a consideration of the 1st section of the Act of 10th March 1875, Purd. Ann. Dig. 2047, pi. 53. It declared, inter alia, “all members of councils to be elected on the third Tuesday of February next, or in any year thereafter, whose term of office would, under existing laws, expire prior to the first Monday of April, shall continue in office from the date at which said term would otherwise expire, until the first Monday of April next ensuing thereto; and the terms of their successors shall begin on the first Monday of April, and shall continue for the period now fixed for the duration thereof by existing laws, in each particular case. Arid hereafter all elections for offices which will be vacant on the first Monday of April, shall be held on the third Tuesday of February next preceding thereto.”

Thus this act did not direct that the election for members of councils should be held on the third Tuesday of February; but it recognised the fact that the constitution required them “ to be elected” then for a regular term. The legislature was aware that, under the laws then in force, the term of a member of councils began and ended on the first Monday of January, and therefore he could not enter on the duties of his office until more than ten months after his election. The time of his election they could not change, but they could designate the time when he should assume his.official duties. To shorten the intervening time, to not permanently lengthen a regular term beyond three years, and at the same time not to disturb the existing division into three classes, the act provided: 1. For a longer term for each member to be first elected at the expiration of each term, which, under existing laws, would expire in January. The term of each to be so elected was to extend until the first Monday of April next following the January when the term would otherwise have expired. As the term of all members of councils then in office expired in January, this act necessarily extended the term of all members to be elected at the expiration of those terms. This, however, was limited to the first election in each case. 2. As soon as the object of requiring the person elected to enter on the duties of his election within a few weeks after his election was accomplished, then the regular term was again to be three years only. This was in entire harmony with the constitution of 1874.

It necessarily follows that, inasmuch as Downing’s regular term would have expired on the first Monday of January 1877, the person elected to fill the vacancy caused by his resignation was elected “for the unexpired term” only. The fact that the sheriff, in his proclamation giving notice of the election, declared that the person to be elected would serve until the first Monday of April 1877, could not change the statute nor extend the term. The term for which Downing was elected, as well as the term of the person who filled out the unexpired portion of Downing’s term, expired on the first Monday of January 1877. Hence the third Tuesday in February 1876 was the proper time to elect a successor, to enter on his duties in January 1877. The respondent, John Gr. Brooke, was, at said election in February 1876, duly and legally chosen a member of the Select Council from the Fourteenth ward of the city of Philadelphia, for a regular term. The learned court erred in not entering judgment in his favor on the demurrer.

Judgment reversed, and judgment in favor of the plaintiff, John G. Brooke, on the demurrer, with costs.


author: Mr. Justice Paxson

text:
    Singmaster’s Appeal. Black’s Assigned Estate.
    1. The Supreme Court will not review the finding of facts by an auditor, where the evidence, upon which his conclusions were founded, is not brought up in the record.
    2. An assignee, for the benefit of creditors, has no standing to appeal from a decree made upon his account, so as to interfere between creditors. If he is also a creditor and desires to appeal, it should be done in that capacity.
    January 25th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Appeal from the Court of Common Pleas, No. 1, of Philadelphia county: Of July Term 1875, No. 5.
    Appeal of P. M. Singmaster, assignee of the estate of II. W. Black, from the decree of the court, confirming the report of the auditor to whom was referred the account of said assignee.
    Black failed in 1873, and assigned his estate to Singmaster for the benefit of creditors. The assignee’s account was referred to an auditor in 1874. The paper-book of the appellant contained in substance the following statement:—
    William Buchanan claimed before the auditor as against the creditors under this assigned estate of Black, upon a promissory note for $300, with arrears of interest, drawn by John Bailey and Elizabeth Robinson, dated August 26th 1863, at six months, payable to said William Buchanan. One of the co-makers .of the note, Elizabeth Robinson, had died, and Black was her exeoutor. On the back of the note was an endorsement of a credit of interest up to April 11th 1870, more than a year after the outlawry of the note, apparently in the handwriting of Buchanan, without date, and not specifying whether the alleged payment of interest was by Bailey or by Robinson. It did not appear whether there was ■ or was not any adjudication of the estate of Elizabeth Robinson, but the auditor of this private estate of Black, thus assigned for the benefit of creditors, reported on January 11th 1875, inter alia, as follows:—
    “ William Buchanan claimed upon the promissory note of John Bailey and Elizabeth Robinson, dated Cambridge, August 26th 1863, for $300, payable six months after date, to the order of William Buchanan, and endorsed by him.
    “Objection was made to this claim, and it was argued that the Statute of Limitations barred it, but your auditor is of the opinion that since interest was paid on the note to April 11th 1870, it was kept alive by the payment of said interest, and it should be allowed.
    “H. W. Black was the executor of the estate of Elizabeth Robinson, deceased, and as such he became responsible for the amount of the note to William Buchanan.”
    The further statement was made that Singmaster was also a creditor of Black to a large amount, and that his assets had realized about twenty-five per cent, of his liabilities. None of the evidence produced before the auditor was furnished in the paper-book, and the above extract was all that was given of his report.
    The court dismissed the exceptions filed by Singmaster to this report, and confirmed the same when he took this appeal.

      JEdward Brady, for appellant.
    No paper-book nor argument for appellee.
    March 11th 1878.
   Mr. Justice Paxson

delivered the opinion of the court,

_ _ It may be that the auditor and the court below erred in allowing the claim of William Buchanan, but the case is. so meagerly presented that we cannot safely say so. Buchanan claimed upon the promissory note of John Bailey and Elizabeth Robinson, dated August 26th 1863, for $300, to the order of the said William Buchanan and by him endorsed. It appears that the note was objected to on the ground that it was barred by the Statute of Limitations. The auditor, however, finds the fact that interest was paid on the note “down to April 11th 1870; that it was kept alive by the payment of said interest, and it should be allowed.” If the auditor was correct as to the facts his conclusion is not erroneous. We are not in a position to review his finding of the facts. No exception was filed in the court below to such finding, and the evidence is not before us.

Another ground of objection was that the claim against H. W. Black was, as executor of the estate of Elizabeth W. Robinson, deceased, one of the makers of the note. It was urged that such a claim could not be allowed out of the assigned estate of II. W. Black. Upon this point the auditor finds : “ H. W. Black was the executor of the estate of Elizabeth Robinson, deceased, and, as such, became responsible for the note to William Buchanan.” This meager statement is all we have upon the subject. How Black, as executor, became individually responsible for the note of his testator wo are not informed. As, however, there are various ways by which he might have made himself so responsible we must assume that the auditor based his finding upon sufficient evidence. His finding upon this point was not excepted to in the court below. In the absence of the evidence we must presume the auditor and the court were right. It is not sufficient for the appellant to allege error in the decree. He must show it. This has not been done.

This appeal was taken by the accountant as assignee of H. W. Black. As such assignee he had no right to appeal. He has no standing to interfere between creditors. It is true the record shows that he was also a creditor, but he does not appeal in that capacity. We dismiss the appeal, however, upon other grounds.

The decree is affirmed and the appeal dismissed at the cost of the appellant.


text:
    Kerns, Administratrix, versus The New Jersey Mutual Life Insurance Company.
    1. A mutual life insurance company is not liable upon a policy issued to the assured on the receipt of his promissory note for the first premium, which note was not paid at maturity.
    2. The note was a written admission that the recital of payment in the policy was not to have the effect an actual payment would and was an agreement that the policy should be void and surrendered in case the note was not paid.
    January 28th 1878.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1877, No. 138.
    Debt by Sarah C. Kerns against the New Jersey Mutual Life Ins. Co. on a policy of life insurance for $5000 on the life of her deceased husband, Edward L. D. Kerns.
    The plaintiff filed a copy of the policy on which suit was brought, with an averment of the death of Kerns, and that due proof thereof had been made. The policy was dated December 4th 1874, and Kerns died October 14th 1875. Defendants, under the belief that the policy of insurance was not such an instrument as would support a judgment by default under the affidavit of defence law, filed no affidavit, and judgment was entered against them. This fact having beeen represented to the court in an affidavit filed, a rule to open the judgment was granted. One Kramer then filed an affidavit, which in substance averred “that he was the soliciting agent of the company, and received the application of Kerns; that the latter not being able to pay the whole of the first premium of $110.35, deponent took his note for the balance, upon the express agreement that if said note was not paid at maturity the policy should be void; that the note was as follows:—
    “ ‘$82.76. Newark, N. J., April 12th, 1875. Value received., ninety days after date I promise to pay to the New Jersey Mutual Life Insurance Company, or order, at. Second National Bank of Allentown, Pennsylvania, eighty-two ^-0¶ dollars, being for insuranee premium of Policy No. 19,994, issued to me by said company, it being understood and agreed that if this note shall not be paid at maturity, said Policy No. 19,994 shall be cancelled and become null and void, and be surrendered to said company, and the pro rata premium for the risk thereon incurred paid to them on demand. (Signed) Edward L. Kerns.’

      <e That said note was then delivered to the defendants, who accepted the same, and was not paid at maturity.” By agreement of counsel the foregoing affidavits were to have the effect of affidavits of defence, and the case was to be proceeded with as if the plaintiff had entered a rule for judgment, because of their insufficiency, whereupon the court entered judgment for the defendants, and plaintiff took this writ, assigning this action for error.

      iS. O. Perlcins, for plaintiff in error.
    — No request that actual payment of the first premium is essential to the validity of the policy is inserted in any form therein.
    The receipt of the premium is essential to the existence of the contract, and the rule of law is that a party is estopped from denying the receipt of premium when it is thus acknowledged in the policy, if the purpose is thereby to defeat the policy: Madison Ins. Co. v. Fellowes, 1 Disney (O.) 217; 3 Kent’s Com. 260; Goit v. National Protection Ins. Co., 25 Barb. 189; Provident Life Ins. Co. v. Fennell, 49 Ill. 180; Dalzell v. Mair, 1 Campb. 532; 1 Phillips Ins., § 514; Boehen v. Williamsburgh Ins. Co., 35 N. Y. 131; Anderson v. Thornton, 20 Eng. Law & Eq. 339. “ The old law, and which is as old as the time of Lord Mansfield, is that the defendant is estopped by signing the policy from saying he has not received the premium:" McAllister v. New England Mutual Life Ins. Co., 101 Mass. 558; Basch v. Humboldt Mut. F. & M. Ins. Co., 6 Vroom 429.
    The ■ fact of the non-payment of the note set forth in the affidavits, does not prove non-payment of the premiums or forfeiture of the policy by reason of the non-payment of the note. See Mut. Ben. Life Ins. Co. v. French, 2 Cin. S. C. Rep. 321.
    The facts set up in the agent’s affidavit show in any event a waiver of any requirement of pre-payment of the premiums as a condition precedent to the validity of the policy, and this waiver was assented to by the company. Where a credit is intended the policy is valid, although the premium is never paid: Miller v. Life Ins. Co., 12 Wall. 285; Lycoming County Mut. Ins. Co. v. Schollenberger, 8 Wright 263.
    No printed nor oral argument contra.
    February 11th 1878,
   The judgment of the Supreme Court was entered,

Per Curiam.

— The note signed by the assured for the abated premium, when the policy was delivered, is a written admission that the recital of payment in the policy was not true, and therefore could not give effect to the policy, as an actual payment would. It is not only such a written declaration of non-payment, but it is a contract of even date, qualifying the terms of the policy, and an agreement that the policy shall be without effect and surrendered, in case the note for the premium be not paid. It therefore superseded the policy to the extent of the agreement. It would be a harsh measure of justice to hold the company to the terms of the policy, upon a concession made to the assured for his benefit, and evidenced by his own writing of even date with the delivery, and intended by him to govern his rights. Clearly the company caannot be held to the letter of a policy not paid for, and so altered for the benefit of the assured.

Judgment affirmed.


author: Mr. Justice Sharswood

text:
    Haskell et al. versus Jones.
    1. The Act of April 12th 1872, regulating the execution and transfer of notes given for patent rights,-is not in conflict with art. 1, sect. 8, of the Constitution of the United States.
    2. The Act of 1872 requires that the words “given for a patent right” shall be legibly written across the face of notes so given. Held, that the negotiability of a note, given for such a consideration, in which these required words are not inserted, is in no way affected by the act, and an innocent holder who takes it before maturity for value, without knowledge or notice of the consideration, takes it clear of all the equities between the original parties.
    January 28th 1878.
    Before Agnbw C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1878, No. 73|-.
    Assumpsit by Jacob M. Haskell and Charles M. Adams, trading as Haskell & Adams, against Jesse E. Jones, upon a, promissory note, drawn by the defendant to the order of Patton & Baldwin, and by them endorsed to plaintiffs. Defendant pleaded nonassumpsit. The trial resulted in a verdict for the plaintiffs, subject to the opinion of the court on the point reserved, as to whether the plaintiffs were entitled to recover upon the following facts, which were agreed upon:—
    That the plaintiffs are residents and citizens of Massachusetts ; that they are the holders of the note in suit for value; that it was received by them in the regular course of business and before maturity ; that they had no notice of the consideration for which the note was given, and were ignorant of the Act of Assembly of Pennsylvania, approved April 12th 1872; that the defendants gave the note in suit to Patton & Baldwin, the payees, and that part of the consideration for the note was the right to make, use or vend a patent invention; that the words “ given for a patent right” were not written or printed on the face of the note.
    The following is the Act of 1872, Pamph. L. 60, referred to above:—
    “ If any person shall take, sell or transfer any promissory note or other negotiable instrument, not having the words ‘given for a patent right’ written or printed legibly and prominently on the face of such note or instrument above the signature thereto, knowing the consideration of such note or instrument to consist, in whole or in .part, of the right to make, use or vend any patent invention or inventions, claimed to be patented, every such person or persons shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined in any sum not exceeding five hundred dollars, or imprisonment in the county jail not exceeding sixty days, or both, in the discretion of the court.”
    The court below entered judgment for the defendant on the point reserved non obstante veredicto, and the plaintiff then took this writ, assigning this entry for error.

      Lewis Wain Smith, for plaintiffs in error.
    — The Act of 12th April 1872 is in conflict with the eighth section, article 1, of the Constitution of the United States. Powers conferred on Congress un- ■ der'the Constitution are thereby exclusively vested in Congress, and, consequently, forbidden to the states: Brown v. State of Maryland, 12 Wheat. 419; Willson v. The Blackbird Creek Co., 2 Peters 245; Gibbons v. Ogden, 9 Wheat. 1; New York v. Miln, 11 Peters 102; Passenger Cases, 7 Howard 203; Cooley v. Board of Wardens, 12 Id. 311; Gilman v. Philadelphia, 3 Wall. 713; State Taxes Cases, 15 Id. 232, 284 and 300.
    The power is given to Congress to grant patents, and the Act of 1872, when it undertakes to prescribe how a patent can be used, sold or vended, and takes away from notes given for a patent right their negotiability under the law of commerce, and provides severe penalties for any patentee who shall venture to take a negotiable promissory note as part of the price of his patent, interferes with this power.
    Laws identical in purpose, and almost identical in words, were passed not only by Pennsylvania, but also by Ohio, Indiana, Illinois, Michigan and Minnesota; and except Pennsylvania in all of those states have been declared unconstitutional and void: Woollen v. Banker (Ohio), Am. L. Rec. 1877, 236; Ex parte Robinson, 2 Bissell 311; Cranson v. Smith (Mich.) Albany Law Jour. 1877, 330; Crittenden v. White (Minn.) 9 Chicago Leg. News 112; Patterson v. Commonwealth, 11 Bush. 311. In this case the note in question does not fall within the law. The negotiable character of the instrument is only taken away when the words “given for a patent right” are written or printed on its face. An innocent purchaser for value cannot be affected by the act.

      JEdwin S. Dixon, for defendant in error.
    — The fallacy of the argument of the plaintiff in error consists in his treating the Act of 1872 as undertaking to prescribe how a patent can be used or sold, when it simply regulates, as the title implies, the execution and transfer of notes given for patent rights. The acts of other states upon which the rulings in the cases cited by plaintiff in error are based, are plainly distinguishable from our act.
    February 25th 1878.
   Mr. Justice Sharswood

delivered the opinion of the court,

If the act entitled “ An Act to regulate the execution and transfer of notes given for patent rights,” passed April 12th .1872, Pamph. L. 60, makes absolutely void all such notes in which the words “given for a patent right” are not prominently and legibly written or printed on the face of such note above the signature thereto, there would be great reason for the contention that the act. is unconstitutional and void. No state can so interfere with the right of a patentee, secured to him by the* Acts of Congress, to sell and assign his patent. But such is not the operation of the act, according to its letter and spirit. By the express provision of the statute, the only effect of the insertion of such words is that “such note or instrument in the hands of the purchaser or holder-shall be subject to the same defences as if in the hands of the original owner or holder.” By necessary implication, notes without such words inserted in them remain on the same footing as before the act. The sole object of the legislature was to secure, so far as could be done consistently with the rights of innocent third persons, that notice of the consideration should be given to all who should take the paper. Nothing is better settled than that between the original parties to a note given for a patent right, it is a good defence to show that the alleged patent is void; in other words, that it is no patent. right at all, and that the consideration has therefore entirely failed: Bellas v. Hays, 5 S. & R. 427; Geiger v. Cook, 3 W. & S. 266; Holliday v. Rheem, 6 Harris 465. All who take with notice of the consideration, take necessarily subject to the same defence. There is nothing in all this which interferes with any just right’of the holder of a valid patent under the Acts of Congress, nor that the maker of the note shall be permitted to show against a holder with such notice that it was obtained by fraudulent misrepresentation. This very plainly distinguishes our act from the statutes of other states, which have been held unconstitutional.

To secure the insertion of these words, the second section of the act makes it a misdemeanor, punishable by fine or imprisonment.or both, for any person “knowing the consideration of a note” to be the sale of a patent right, to take, sell or transfer it without the words “given for a patent right” inserted, as provided by the act. It is too plain for argument that this section in no way affects the right or title of the holder of such a note, who takes it not knowing that the consideration was the sale of a patent. He commits no illegal or indictable offence. The negotiability of a note in which the required words are not inserted, is in no way affected by the act. The innocent holder, who takes it before maturity for value, without knowledge or notice of the consideration, takes it as heretofore, clear of all equities between the original parties. We think, therefore, that the court below were clearly wrong in entering judgment non obstante veredicto on the reserved point in favor of the defendant.

Judgment reversed, and now judgment for the plaintiff upon the verdict. •


text:
    Woodward versus Carson.
    1. The record of a judgment, standing in full force and unreversed, is evidence of an attachable debt, and when offered in evidence by an attaching creditor in support of his claim, it is error to reject it, because of the pendency of a writ of error taken to the judgment.
    2. O. obtained a judgment against S., who sued out a writ of error. B., pending the writ, obtained a judgment against C., and issued an attachment execution against S., as garnishee. At the trial, to support his claim, B. offered in evidence the record of the judgment against S., which the court rejected, because of the pendency of the writ of error.. Held (reversing the court below), that the record should have been admitted.
    January 80th 1878.
    Before Agneav, O. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the old.District Court of Philadelphia county: Of July Term 1876, No. 97.
    Attachment execution sur judgment issued by Byron Woodward against John Carson, defendant, and Joseph Singerly, garnishee.
    On the 24th of March 1873, David Armstrong, to the use of John Carson, obtained a judgment against Joseph Singerly, in the late District Court of the city and county of Philadelphia, for $8942.94, said judgment having been entered on a verdict for that amount. On the date of this judgment a writ of error from the Supreme Court of Pennsylvania was filed of record in said case.
    Byron Woodward obtained a judgment in the late District Court against John Carson, for $7574. On the 3d -of January 1874, Woodward issued an attachment execution on this judgment, in which Joseph Singerly, the defendant in the case first stated, was made garnishee, who was served with the attachment the same day. After interrogatories and answers thereto had been filed, the. ease was put at issue by the plea of nulla Iona.

    On the 2d of May 1876, said attachment case came up for trial, when Woodward, to maintain the issue upon his part, offeréd in evidence the record'of the said suit and judgment against Joseph Singerly, who objected to its admission, because it appeared by the record produced that said writ of error was pending, and because the record of said judgment was not evidence of the fact that the garnishee, Singerly, was indebted to said Oarson.
    The court sustained the objections and overruled the offer, and the plaintiff offering no other evidence to maintain the issue upon his part, the court directed a judgment of nonsuit to be entered. Defendant moved the court in banc to set aside the said judgment of nonsuit, which was refused, and Woodward took this writ, assigning for error the refusal of the court to admit the record of the. judgment in evidence, the entry of the nonsuit, and the refusal to take it off. *

      R. P. White, for plaintiff in error.
    — Debts in suit and judgments may be attached: McCarty v. Emlen, 2 Dallas 277; Crabb v. Jones, 2 Miles’s Rep. 130; Sweeny v. Allen, 1 Barr 380; Fithian v. Railroad Co., 7 Casey 114.
    An action of debt will lie on a foreign judgment, notwithstanding the pendency of an appeal from the decision of the foreign court: Ins. Co. v. DeWolf, 9 Casey 45; Falkner v. Franklin Ins. Co., 1 Phila. R. 183.
    When a judgment is entered the cause of action ceases to exist, and is wholly merged in the judgment, which is conclusive between the parties until reversed: Bank v. Wheeler, 28 Conn. 433; Doe v. Wright, 10 A. & E. 763; Benwell v. Black, 3 Tenn. 643; Nill v. Comparet, 16 Ind. 107; Burton v. Reeds, 20 Id. 92; Taylor v. Shew, 39 Cal. 539; Cole v. Conolly, 16 Ala. 271; Scott v. Pilkington, 110 E. C. L. R. 10; Suydam v. Hoyt, 1 Dutcher (N. J.) 230; Rheem v. Wheel Co., 9 Casey 357; Ins. Co. v. DeWolf, 9 Id. 45; Falkner v. Franklin Ins. Co., 1 Phila. R. 183. Nor is there any danger of injury to a garnishee in holding a judgment as conclusive pending a writ of error. The court, in the exercise of its equitable powers, can and will protect him.

      A. Sidney Biddle and R. O. McMurtrie, for defendants in error.
    — The question is, was the record evidence of the debt to establish the right in favor of a stranger ? If so, it is conclusive. It creates a debt of record by the defendant to the attaching creditor, and by a process that leaves no trace of the mode of doing this. If the judgment used as evidence is reversed, our liability will remain. A stranger cannot.use a record to establish a fact determined until it has become conclusive, right or wrong. The judgment only proved a fact depending on a contingency and that was incapable of trial. A general verdict Tor a specific sum is bad in attachment execution: Bonnaffon v. Thompson, 2 Norris 460.
    February 11th 1878,
   The judgment of the Supreme Court was entered,

Per Curiam.

— The record of the judgment of Woodward v. Carson, offered in evidence, was standing in full force and unreversed, and was therefore evidence of an attachable debt. This necessarily demanded its admission in evidence, and carried it to the jury. But the record showed a delivery of a writ of error. This, however, did not destroy the effect of the judgment. Non con-stat that the judgment would be reversed. Hence the evidence of the existing debt must carry the verdict on the plea of nulla bona. But as the court has power to administer equity, through the instrumentality of a verdict, the jury had the power, under the instruction of the court, to return their verdict, subject to the right of the defendant to' prosecute his writ of error to judgment of reversal, in a reasonable time to be fixed by-them. On this verdict the court had the power to enter the proper judgment, under the attachment law, subject to a stay of execution in the interval, and with leave, in case of a reversal, to move to open and set aside the judgment, the attachment and lien to remain, and the plaintiff remitted to his right to proceed to. a trial by jury thereupon. The control of the case would then remain in the hands of the court, which has power to extend the time, on sufficient cause shown, or to award final execution. But the exclusion of the record of the judgment was in effect to deprive the plaintiff of the highest evidence of the debt due by the garnishee to the defendant in the attachment, and compel him to try the question of debt de novo, which had already been adjudicated against the garnishee. On the other hand, its admission and an absolute verdict against the garnishee would have deprived him of the fruit of his writ of error, in case he should reverse the judgment against him.- The administration of equity through common-law forms is so well settled in Pennsylvania, that this mode-of proceeding, to save the rights of both parties, is fully justified by the current of Pennsylvania decisions.

Judgment reversed, and a venire facias de novo awarded.


text:
    Appeals of the City of Philadelphia et al.

    1. While a partial assignment of a contract between individuals may be enforced in equity, yet where a municipality is a party to a contract it is not bound to recognise partial assignments of it.
    2. A partial assignment being invalid, notice of it to the engineer and surveyor of the municipality does not render him liable to plaintiff. Having no instructions to give the warrant to any other person than the contractor, and the city recognising the validity of no other claim, the engineer, although he knew of the assignment of a part of the contract to plaintiff, was justified in drawing it in favor of the contractor and delivering it to him.
    3. The controller, having loaned money to the contractor during the execution of the work and having countersigned the warrant, is not liable in this proceeding, by reason of the Act of February 2d 1854, which makes the officer of a city liable to impeachment, if interested directly or indirectly in any sale or contract for supplies furnished the city.
    January 30th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from the Court of Common Pleas, No. 3, of Philadelphia county. In equity, No. 2.
    The bill in equity was filed in this ease June 12th 1874, by Peter A. Quin against the City of Philadelphia, Peter A. B. Widener, city treasurer, Samuel L. Smedley, chief engineer and surveyor, and A. B. Burton. The bill avers that in June 1874 an ordinance was passed by councils of Philadelphia apropriating $6881.45 to pay for the completion of the bridge over the West Chester Railroad at its intersection with Darby road; that its contractor was A. B.-Burton; that plaintiff had expended $4800 in said bridge for Burton, for which he had executed to plaintiff a partial assignment of his contract; that plaintiff notified Smedley of it and showed it to him prior to June 8th 1874 ; that on that date Smedley issued to Burton a warrant for the whole amount of said appropriation ; that the payment of said warrant would he a mis-payment by the city; that plaintiff did not know who held it. The bill prayed for an injunction to restrain its payment and a decree for the sum of $4800, to be paid out of said appropriation. Subsequently the bill was amended by making the city controller a party defendant, and averred that he was interested in it and received the amount of it in cash.
    The answer of Smedley denies that he knew of the assignment when the warrant was issued and admits that Burton brought him the ordinance on June 8th 1874, and that he drew the warrant,-as it was his duty to do. The answer of A. B. Burton admits the appropriation by councils; that he was the contractor; avers that he has no knowledge that Smedley was notified of the assignment to plaintiff prior to June 8th 1874, or of the conduct of Smedley in issuing the warrant, or who has the warrant, or that Widener will pay it; that plaintiff did a part of the work, and that there is a balance due him of $1979.85 ; that this sum was due under the agreement to do the work and not by virtue of an assignment. The answer of the City of Philadelphia avers that the assignment was not to operate as such between plaintiff and Burton ; that Smedley received notice a week before June 8th 1874; that he was not requested to issue the warrant in any manner different from those previously issued; that he issued 'a warrant to Burton for $6881.45, and the same having been properly countersigned, Avas duly paid. The answer of S. P. Hancock denies that the assignment to plaintiff Avas bona fide and that he was interested, but admits a loan to Burton to aid him in completing the work. The ansAver of P. A. B. Widener avers that he has no knowledge of the averments contained in the bill, except that the warrant was issued and paid.
    The case Avas referred to a master, who, after reporting the facts and his conclusion on them, reported a decree that the City of Philadelphia shall pay plaintiff $4601.22. 2. That the bill he dismissed as to Widener with costs. 8. That Smedley shall pay plaintiff $4601.22 with costs. 4. That Burton shall pay plaintiff $4601.22 AYith costs. 5. That Samuel P. Hancock shall pay plaintiff $4601.22 AYith costs.
    Exceptions were filed to this report, and Avere dismissed by the court beloAY, and a decree accordingly was entered in favor of plaintiff. The dismissal of these exceptions and the entry of the decree Avere assigned for error.

      N. S. Sharpless, J). W. Sellers, O. M Morgan, Assistant City Solicitor, and W. Nelson West, City Solicitor, for appellant.
    — The bill is in the nature of a bill quia timet, and prays for an injunction to restrain the payment of the warrant, and -that it be cancelled. The decree made is not under any special prayer for relief, and is not consonant to that made by the bill: Brightly’s Eq. Jur. 455; 1 Daniel’s Oh. Prac. 439.
    This AYas a partial assignment of the claim. In Philadelphia v. Eockhanal, 23 P. E. Smith 216, the assignment was of all the warrants coming to the contractor. A partial assignment amounts to nothing: Jermyn v. Moffitt, 25 P. E. Smith 400; Gibson v. Cooke, 20 Pick. 152; Fairgrieves v. The Lehigh Nav. Co., 2 Phila. 182; Erie v. Knapp, 5 Casey 173; Mandeville v. Welch, 5 Wheat. 277; Walker v. Mauro, 18 Mo. 564; Wilson v. Carson, 12 Md. 54; Ex Parte Alderson, 1 Mad. 53; Row v. Dawson, 1 Vesey, Sr. 332; Rodick v. Gandell, 15 Eng. L. & E. R. 28; Selt v. Morris, 1 Simons 607.

      Anthony A. Hirst and Richard P. White, for appellee.
    — The assignment was for all the substructure. The contract was separable, and this was no effort to divide it. Notice was given the proper officer: The City v. Lockhardt, 23 P. F. Smith 215.

      The contract was not assigned, hut the proceeds of it. A partial assignment is good in equity: Phœnix Ins. Co. v. The City, 2 W. N. C. 596.
    As to the form of the bill, it is amendable, and the court will not reverse on mere matter of form: Williams’s App., 29 P. F. Smith 121.
    May 6th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

Peter H. Quin filed this bill against the City of Philadeljfiiia, Peter A. B. Widener, city treasurer, Samuel L. Smedley, chief engineer and surveyor, and A. B. Burton. Three days thereafter, the bill was so amended as to make Samuel P. Hancock a party defendant. On the final hearing, the bill as to Widener was dismissed with costs; but it was adjudged and decreed that the City of Philadelphia, Smedley, Burton and Hancock should each pay to Quin the sum of $4601.22, together with costs of suit. From that decree, the City, Smedley and Hancock severally appealed, and they were argued together.

On the 30th June 1873, Burton entered into a contract with the City of Philadelphia to furnish the materials and construct a bridge over the Philadelphia and West Chester Railroad at Darby road. Payments were made by the city on the monthly estimates, as the work progressed; in all to the amount of $10,000. This left due on the final estimate the sum of $6881.45. The contention arises in regard to the claim of Quin to this money paid by the city on the final estimate.

It appears that Quin was surety for the fulfilment of Burton’s contract, and by writing bearing date the 1st of July 1873, Burton assigned to Quin all his (Burton’s) interest in the contract, “ except the item of superstructure.”

We will first consider the question whether the city, although notified of this assignment, was so far bound thereby as to be liable to Quin for having thereafter paid the money due on the last estimate to Burton. The assignment was not on the contract, but on a separate piece of paper. It was not noted on the contract, nor was it ever filed in the ofiice of the controller. In all five estimates W'ere made and five warrants drawn. All the estimates were made to Burton as contractor. The four preceding warrants in payment of the estimates, as well as the last, were all drawn in favor of Bui-ton. Although Quin, by himself and agents, assisted in the construction of the work, yet it does not appear that the city ever admitted any liability to him or assumed to pay him. It will be observed that the assignment is not of the whole contract, nor of all the money to become due thereon. It is an assignment of a part only. The obligation which the city assumed with Burton was an entire contract. That which the latter assigned to Quin was an uncertain and undetermined portion in dollars of the sum to be paid. It is true that it was susceptible of afterwards being determined by agreement between the parties to the assignment; yet they were liable to disagree as to Quin’s rights under it,-and in fact did disagree. They disagreed as to the object of the assignment, the amount of work done by Quin, the sum paid him and the amount due him on the completion of the work. In Philadelphia v. Lockhardt, 23 P. F. Smith 211, it was held that an executory contract for the payment of money by a municipal corporation might be assigned so as to pass an equitable right of action to the assignee. That, however, was an assignment of the whole contract, of all the money to become due thereon. The question now presented is whether such a corporation is bound to recognise an assignment of a part only of its obligation. If it must one uncertain part, we see no just reason why it must not as many parts as the convenience or whim of the obligee shall induce him to assign. The probable and natural effect of holding the municipality liable to each assignee would subject its officers to vexatious annoyances and the city to litigation and costs. It is conceded that at law the enforcement of such assignments would be questionable: Jermyn v. Moffitt, 25 P. F. Smith 399; Mandeville v. Welch, 5 Wheat. 277; yet it is claimed that they are good in equity, and therefore this assignment may be enforced here. There is no doubt that as between individuals this rule prevails in equity. Whether it shall so be held against a municipal corporation is now the question. It does not appear to- have been decided by this court, nor has the research of counsel been able to cite the decision of any court of last resort in which it was so held. The policy of the law is against permitting individuals, by their private contracts, to embarrass the financial officers of a municipality. Hence it was held in Buckley v. Eckel et al., 3 Barr 368, that an attachment execution, under the Act of 16th June 1836, would not lie against such fiscal officers. To the same effect is City of Erie v. Knapp, 5 Casey 173. A municipal corporation should not be subjected to the embarrassments, responsibilities and costs of adjudicating contracts to which it was not a party. While we adhere to the doctrine of Philadelphia v. Lockhardt, supra, yet we are unwilling to carry the rule to the extent asked for here, even in equity.

Having reached this conclusion in regard to the city, it necessarily removes the main grounds of complaint against Smedley. The assignment being invalid as against the city, no mere notice of it to him could make him liable to Quin. Smedley was the engineer and surveyor; his duties were limited; he had no power to change the contract, nor to ratify the assignment. Prior to the final estimate he was not authorized to draw a warrant. He made up the estimates of work done and certified them to the Commissioner of Highways. The appropriation was made to that depart•ment, and the Chief Commissioner of Highways drew the warrants. On the'25th of May 1874, Smedley duly certified the final estimate to the Chief Commissioner of Highways. The money remaining unpaid on the 8th of June 1874, the Select and Common Councils of the city passed, and the Mayor approved, an ordinance which ordained “thatthe sum of $6881.45 be and the same is hereby appropriated to the Survey Department, to pay for the completion of the bridge over the West Chester Railroad at Darby road, and warrants shall be drawn by the chief engineer and surveyor, in accordance with existing ordinances.” On the same day Burton presented a copy of the- ordinance to Smedley and asked for the warrant. The latter thereupon drew it in pursuance of the ordinance on the city treasurer, and handed it to Burton. This was four days before the bill was filed. Having no instructions to give the warrant to any other person than the contractor with the city, and the city recognising the validity of no other claim, Smedley was fully justified in drawing it in his favor and in delivering it to him. The fact that he knew that Quin had an assignment of a part of the contract and claimed the money did not impose on him any duty to withhold the warrant until the equities between Quin and Burton should be adjusted.

Then as to the appellant Hancock. Inasmuch as notice to the city or to Smedley of the assignment made to the appellee, was insufficient to prevent the issuing of the warrant to Burton, it necessarily follows that notice to Smedley was not notice to the appellant, and any knowledge he may have had of that assignment furnished no valid reason for withholding his approval.

Two other questions remain to be considered as affecting the liability of the appellant. The one, whether he had such an interest in the warrant itself as' in law to prevent his approving and countersigning it; the other, whether, in case he illegally received a part of the proceeds thereof, the appellee has not a full and adequate remedy at law against him.

The master found the appellant “ had a direct interest in the warrant in violation of law,” and submitted a decree that he should pay to the appellee the sum due to him from Burton. In adopting the decree the court appears to have rested it on the ground that the appellant was interested in the sum due on the estimate, and was to receive a portion thereof, contrary to the ordinance of 20th February 1856. Whether these conclusions are correct depends on the proper construction of the Acts of Assembly and ordinance relating to the duties of the controller.

Section 12 of the Act of 2d February 1854, Pamph. L. 21, declares the controller “shall countersign all warrants on the city treasurer, and shall not suffer any appropriation made by the city councils to be overdrawn, and shall perform all the duties now enjoined by law on the county auditors.” Section 51 declares if any officer of the city shall be directly or indirectly interested “in any sale to or contract for supplies to be furnished to said city” or “ shall receive any gratuity, money or property whatsoever by reason of such sale or contract,” he shall be subject to impeachment and removal from office. By sect. 29 of the Act of 29th May 1856, Pamph. L. 567, it is provided that the controller shall keep separate accounts, for each specific item of appropriation made by the city councils to each department of the city, and shall require all warrants to state particularly against which of said items the said warrant is drawn; and shall not permit any one of the items of the appropriation to be overdrawn, nor the appropriation for one item of expense to be drawn upon for any other purpose than that for which the appropriation was specifically made ; upon receiving a bill or warrant from any one of the departments he was required to “ proceed immediately to examine the same, and if the said bill or warrant contains an item for which no appropriation has been made or the appropriation for which is exhausted, or to which for any other cause he cannot give his approval, it shall be his duty immediately to inform such department, and the warrant therefor shall not be issued unless by special authority from the city councils.”

The ordinance of 20th February 1856 declares, “ no department shall issue any warrant until the bill containing such claim shall be presented by said department to the controller. The controller shall audit such bill with the view to ascertain whether the supplies have been purchased or the services performed, and the sum charged therefor is proper ; and he shall inquire and ascertain if any member of the councils, member or officer of such board, officer of any department or officer or agent of the city corporation is interested in the sum due therefor or is to receive any portion thereof, or has received any commission, consideration or gratuity relating thereto ; and if any party is so interested, he shall refuse to countersign said bill and.report the same to councils.”

The evidence on which it is claimed these statutes and this ordinance impair the validity of the controller’s action is substantially this : From time to time, during the progress of the work, he advanced or loaned money to Burton. He testified, and the evidence appears uncontradicted, that he did it out of compassion for Bur ton and for the benefit of the city ; that the original appropriation was exhausted and he was informed the bridge was not fit for travel; that this money was lent to be used in doing the work, paying the men and paying for the materials. He took Burton’s due-bills therefor, some of which stated they were payable out of the money for the completion of the bridge, and others for sums-payable on demand. It does not appear that Burton made any assignment to him of the fund. When the warrant was presented for the appellant to countersign by Burton, a certified copy of the ordinance approved was also exhibited to him. He then countersigned the warrant and handed it to Burton. The latter took it to another table, endorsed it, and handed it back to the appellant. Thereupon he deducted the sums he had advanced to Burton and gave him checks for the residue of the warrant. The same day he obtained the money on the warrant.

The master thought the facts brought the case within the forbidden clause of the Act of 12th February 1854. We think it very doubtful whether a contract for building a bridge comes within the meaning or spirit of “ any sale to or contract for supplies.” The rule for construing statutes of this penal character will hardly justify designating this contract as one “ for supplies furnished the city.” It would seem that the word “ supplies” was designed to apply to property of a personal character. Whether this be the correct, construction is unnecessary now to decide. The proceeding against the appellant is not to impeach him and to remove him from office; nor is it to enjoin him against approving and countersigning the warrant. He had done these acts before these proceedings were commenced. This is merely the claim of one individual against another for the money paid on a warrant which Burton was justly entitled to receive. How did the act of the appellant in countersigning it injure the appellee ? If it had not been signed he could not have attached the debt in the hands of the city: City of Erie v. Knapp, 5 Casey 173; nor could he have compelled the issuing of the warrant to him.

The effect intended to be produced by a literal compliance with the Act of 29th May 1856 is to delay the issuing of the warrant until it shall be specially authorized by city councils. The issuing of this warrant had already been so specially authorized and ordered. No action of the appellant could have procured from the councils more specific authority than that which he held in his hands when he signed the warrant. The warrant stated on its face all the statute required. Its truthfulness was verified by the certified ordinance. He had no right to divert that money from the sole purpose for which it was appropriated. There is no allegation that the contract with Burton was not fairly and honestly made; nor that the estimate was not just and correct. The warrant was drawn for the precise sum specifically appropriated, and for the purpose named in the ordinance. The object of the act had thus been accomplished. The issuing of the warrant was specially authorized by councils.

Then as to the ordinance of 20th February 1856. This manifestly refers to those cases in which “ a bill” must be submitted to the controller before a warrant shall be drawn. It makes no reference to warrants. It provides he “shall audit such bill” for the purpose of ascertaining if any of the objections in the ordinance stated exist. If so found, he shall refuse to countersign “said bill.” The present case was one' in which, by an ordinance approved on the day of the appellant’s action, the legislative authorities of the city had appropriated this specific sum for this specific purpose, and had ordered the warrant therefor to be drawn by the chief engineer and surveyor. It was so drawn.

It cannot be doubted that the same power which directed the general action of the controller in the cases coming within the ordinance of 20th February 1856, could, by ordinance of 8th June 1874, provide otherwise for the payment of a sum expressly appropriated to a specific object. In this case no “bill” was submitted to the controller in regard to which he could have inquired whether an official was “ interested in the sum due therefor or was to receive any portion thereof.” It is true he knew that he expected to receive from Burton, after the latter had received the warrant, the sums which he had advanced and for which he held due-bills; but the amount due him was in no manner affected by the sum Burton might receive from the city. It was not to be increased nor diminished thereby. It is not claimed that the appellant was interested in the contract when made, nor that he was to receive any share of the money to be paid thereon, “nor that he was to receive, or did receive, any commission, consideration or gratuity relating thereto.” This ordinance of the 20th of February 1856 is a just and salutary one. It should be invoked whenever necessary to secure or protect the city against any collusion, combination or fraudulent conduct of any of its officials prejudicial to its interest. It should not by a forced construction be applied to the settlement of disputes to which the city is not a party, and in which it has no pecuniary interest. The city makes no complaint that the appellant did not refuse to countersign and did not report the reasons for his refusal to the councils. Had he reported to the councils that Burton was to pay him out of the money he was to receive, for the advances made during the progress of the work, the councils could well have replied, “no bill has been submitted for you to examine and audit. This is the case of a final estimate of the chief engineer and surveyor, made on a written contract. By ordinance, duly approved this day by the mayor, we have appropriated the precise sum to pay the estimate, and ordered a warrant to be drawn therefor. If our ordinance of 20th February 1856 would have required you to examine this claim, our ordinance of to-day relieves you therefrom. The claim is just. The debt is due. Burton is entitled to the warrant. You will therefore countersign and deliver it to him.”

The fact must not be overlooked that the appellant had not only countersigned the warrant, but had actually received the money seven days before he was made a party to this bill. Thus, in advance of any proceedings against him, he had actually received the money. If the appellee is justly entitled to that money he has a full and adequate remedy at law : Patterson v. Lane, 11 Casey 275. As the case was presented and now stands, we do not think the facts justify us in denying to the appellant the right of a trial by jury. A court of common law is the proper tribunal to determine the right of each party’s claim to this money. We cannot, therefore, sustain the decree made by the learned judge.

And now, to wit, 6th May 1878, the decree against each of the three several appellants is reversed and set aside, and the bill as to each of them is dismissed without prejudice to the rights of the appellee against Hancock. It is further ordered that the appellee pay the costs of appeal, and in the court below.


text:
    McCauley’s Appeal.
    1. No appeal lies to the Supreme Court from the taxation of costs by the Court of Common Pleas.
    2. The materiality of witnesses, in a trial before a jury, depends on facts Known to the court below, whose discretion in the allowance of fees to the witnesses cannot be reviewed without the evidence, which is not brought up either by appeal or certiorari.
    January 31st 1878.
    Before Agnew, C. J., Sharswood, Merour, (Jordon, Paxson, Woodward and Trunkey, JJ.
    Certiorari to the Court of Common Pleas, No. 1, of Philadelphia county : Of July Term 1877, No. 55J.
    Daniel McCauley brought an action for deceit against Frank Dickson, in which a verdict was rendered for the defendant. The prothonotary taxed the costs at $125.40, which included the fees of five witnesses, who were in attendance at the trial, but who either did not testify or knew nothing about the case. From this taxation of the costs McCauley appealed, and the court below dismissed the appeal. McCauley then took this certiorari and appeal, alleging that the court therein erred.

      Lucas Hirst, for appellant.

      JE. Hunn, Jr., for appellee.
    February 11th 1878,
   The judgment of the Supreme Court was entered,

Per Curiam.

— No appeal lies from a taxation of costs by the Court of Common Pleas to this court. A writ of error reaches only the record, and errors apparent on the record only can be corrected. The materiality of witnesses in a trial before a jury depends on facts known to the court below, whose discretion in the allowance of fees to the witnesses cannot be re-examined without the evidence, which is not brought up either by appeal or certiorari.

The appeal and certiorari in this case quashed, at the cost of the plaintiff in error.