author: by Read, J.

text:
    Watts and Parker, Executors, versus Fox.
    1. Under the Act of March 21st 1772 (Landlord and Tenant) the object of the law is, that the summons to appear before the inquest should be served on the premises on the person in actual possession.
    2. Service on the premises on a person in possession claiming to be the agent of the lessee, is sufficient.
    February 21st 1870.
    Before Read, Agnew and Sharswood, JJ. Thompson, C. J., at Nisi Prius.
    Error to the Court of Common Pleas of Philadelphia: No. 266, to January Term 1870.
    Isaac Brown Parker leased the American Theatre to Robert Fox for four years, commencing March 31st 1865, for a yearly rent of $3000 — in addition to which Fox was to pay “ all taxes, charges, license fees, assessments, water-rents, gas charges and other impositions of every kind which should be charged on the premises.” Parker died 19th September, 1865, having made his will, whereby he appointed Frederick Watts and John Brown Parker his executors, giving them full power and authority to sell, convey and dispose of all or any part of his real estate.
    On the 31st of March 1869, a notice to quit, signed “ John B. Parker, Frederick Watts, per John B. Parker, executors,” was served on Fox. On the 19th of July, John B. Parker instituted proceedings before two aldermen, under the Act of March 21st 1772, to recover possession of the premises.
    The aldermen issued the ordinary precept to the sheriff to summon an inquest, and also to summon Fox. The sheriff returned that he had summoned an inquest, and that he “ did also summon Robert Fox, to be and appear at the time and place as within commanded by the writ, by leaving a true and attested copy of the within writ on the premises within described, with William J. Gilmore, his agent, and making known to him the contents thereof, July 20th 1869.”
    Fox did not appear before the aldermen and inquest, who found against him, and assessed “the sum of $916.66 damages, for taxes $600, for gas consumed $101.09, and water-rent §26.35; making in all $1644.10 for the damages of the said executors, occasioned by the unjust detention of the said premises.”
    Fox removed the proceedings into the Court of Common Pleas by certiorari, and filed the following exceptions :—
    1. The suit was improperly brought by executors, who cannot maintain proceedings for the possession of real estate.
    2. The notice to quit was signed by one executor only, and was therefore defective.
    3. Defendant was not summoned as required by law.
    4. Sheriff did not summon freeholders as required by the Act of Assembly.
    5. Damages are excessive, and given for other objects than the unjust detention of the premises.
    The Court of Common Pleas (Allison, P. J.) reversed the proceedings, on the ground that the service on Fox. had not been a personal service.
    The plaintiffs removed the ease to the Supreme Court, and assigned the reversal of the proceedings for error.

      II. Sanson (with whom was D. Dougherty), for plaintiffs in error.
    — The objection to the service was too late, the defendant should have applied to the aldermen to set it aside: Winrow v. Raymond, 4 Barr 501; Zion’s Church v. St. Peter’s Church, 5 W. & S. 215. The notice was sufiicient: Act of March 21st 1772, § 12, 1 Smith’s L. 373, Purd. 613, pl. 18; Bujac v. Morgan, 3 Yeates 258; Oakland Railroad v. Keenan, 6 P. F. Smith 198.

      May 5th 1870,

      P. P. Qarroll (with whom was J. P. O’Neill), for defendant in error,
    referred to Winrow v. Raymond, 4 Barr 501. The return of the sheriff was part of the record: Freeman v. Caldwell, 10 Watts 11; Flick v. Troxsell, 7 W. & S. 65. The executors were not the proper persons to institute the proceedings : 2 Williams on Exrs. 831; Wilson v. Hamilton, 9 S. & R. 431; Henderson v. Boyer, 8 Wright 220. He referred also to Railroad v. Heister, 8 Barr 452.
   The opinion of the court was delivered,

by Read, J.

— The leased premises were a theatre, and not a dwelling-house, nor did the defendant live in it, but it was occupied by his agent, William J. Gilmore, and the return of the sheriff shows that in obedience to the writ issued by the two aldermen he summoned the defendant to be and appear at the time as within commanded by the writ, by leaving a true and attested copy of the within writ on the premises within described, with William J. Gilmore, his agent, and making known to him the contents thereof, July 20th 1869.

The exception sustained by the court below, was that the defendant was not summoned as required by law, and not that he had not actual notice of it and of the proceedings.

The Act of 21st March 1772, in the 12th section says, “and also to summon the lessee, or other person claiming or coming into possession under the said lessee or tenant,” and it therefore appears to be the object of the law, that the service should be made in such a manner, that the person in actual possession of the demised premises, should have notice of the summons. At the time of the passage of this act, personal service of the ordinary summons was not necessary, and the sheriff might leave “ notice in writing of such summons at the house of the defendant, in the presence of one or more of his family or neighbors, signifying that the defendant should be and appear, according to the contents of such summons.”

From the language of the act, service on the demised premises upon the person in possession seems to be contemplated, and therefore the service of the summons upon the person in possession claiming under the lessee as his agent, is a sufficient service in the present case. The objection was purely technical, the defendant no doubt having actual notice of all the proceedings — although voluntarily abstaining from appearing and taking defence.

There is nothing in the 1st, 2d and 4th exceptions, but there is in the 5th exception, and the plaintiffs have agreed to withdraw all that portion of their claims which relates to the damages, and to consent to a reversal of so much of the judgment as relates to the same, it is therefore ordered that the judgment of the Court of Common Pleas be reversed, and that so much of the judgment of the aldermen as directs that restitution of the said demised premises be made to the said Frederick Watts and Isaac Brown Parker be affirmed, and the residue of said judgment is reversed.

Restitution to be made forthwith.


source: Caselaw Access Project

license: Public Domain

text:
    Commonwealth ex rel. Gordon et al. versus Graham et al.

    1. Quo warranto is the proper remedy against persons usurping the office of trustees of a chartered church.
    2. A motion to quash must be for some defect in the suggestion itself, not for any matters outside.
    3. Mere defects in form that can he amended, will not he regarded on a motion to quash.
    February 28th 1870.
    Before Read, Agnew and Sharswood, JJ. Thompson, C. J., at Nisi Prius.
    Sur motion to quash writ of quo warranto: No. 109, to January Term 1870.
    On the 23d of October 1869, George Gordon and others filed a suggestion in the Supreme Court, setting forth that James Graham and others had been and were exercising the franchises and privileges of the board of trustees of “ The First Reformed Presbyterian Congregation in the City of Philadelphia;” that the said congregation is a corporation under a charter from the Commonwealth, which was also set out at large.
    The following were articles in the charter:—

      “ Art. 4. That there shall be a board of trustees which shall consist of seven members, who shall be recognised by the session of this congregation, as being in full communion with this church.
    “ Art. 5. That there shall be an annual election for the members of the board of trustees on the first Monday of every year, of which notice shall be given two weeks previously from the pulpit. The election shall be by ballot in the church.

      “ Art. 6. That the persons capable of electing shall be all who are in full communion with the congregation, as well as all pew-holders, though not in full communion.”
    The suggestion averred:—
    “ That at the regular annual election for the members of the board of trustees of said congregation, held in accordance with the terms of the charter, on the first Monday of the year, viz., on the 4th day January, a. d. 1860, the 'said George Gordon, &e. (the relators), were in due and regular form of law elected as a board of trustees of said congregation, and have been recognised by the session of the said congregation as being in full communion with the said church. But notwithstanding the premises and the said election they, the said James Graham, &c. (the defendants), have, during all the time since the said the 4th day of January, A. D. 1869, used and do still use the franchises, offices, privileges and liberties of a board of trustees of the said, ‘ The First Reformed Presbyterian Congregation in the City of Philadelphia,’ and during the said time have usurped, &c. * * * Wherefore the said relators for the said Commonwealth do make suggestion and complaint of the premises, and pray due process of law against the said James Graham, &c., to he made to answer to the said Commonwealth by what warrant they claim to have, use and enjoy the franchises, offices, privileges and liberties aforesaid.”
    The quo warranto was allowed by Thompson, C. J., returnable on the first Monday in January 1870.
    On that day the defendants moved to quash the writ for the following reasons:—
    I. Because the relators are strangers to the corporation, and therefore are not entitled to sue out a writ of quo warranto in this case.
    II. Because the defendants were, on the first Monday of January 1869, elected trustees of the First Reformed Presbyterian Congregation in the city of Philadelphia, in conformity with the charter of said corporation, as the same is set forth in the suggestion of the said relators, to wit:—
    1. The notice of election prescribed by the charter was given.
    2. The election was held at the time and in the place and manner prescribed by the charter.
    3. The defendants -were elected by the votes of duly qualified members of the corporation.
    4. The defendants are duly qualified members of the corporation.
    5. The defendants have been and are recognised by the session of the said congregation as being in full communion with the said church.
    III. Because the relators, who claim to have been elected trustees of the said corporation on the said first Monday of January 1869, were not elected in conformity with the provisions of the charter of said corporation, to wit:—
    1. The notice of election, prescribed by the charter of said corporation, was not given.
    2. Express personal notice of the said election was not given to every member of the said corporation.
    3. Their election was not held in the place prescribed by the charter of said corporation.
    4. The relators were elected by strangers, and not by members of the said corporation.
    5. The relators are not members of the corporation, but are strangers to it, and are therefore ineligible as trustees.

      March 10th 1870,
    6. The relators have not been, and are not recognised by the session of said congregation as being in full communion with the said church.
    IV. Because this is not a proper case for the issuing of a writ of quo warranto.
    A number of affidavits and documents were filed on each side, which it is not necessary to give.

      O. S. Patterson and Lowrie (with whom was Porter), for the motion.
    — The writ of quo warranto is issuable, not of right, but only in the discretion of the court: 5 Bac. Abr. 184, tit. Information; People v. Sweeting, 2 Johns. 184; Commonwealth v. Murray, 11 S. & R. 73; Commonwealth v. Reigart, 14 Id. 216; Commonwealth v. Arrison, 15 Id. 127; Commonwealth v. Jones, 2 Jones 365; Commonwealth v. Cluley, 6 P. F. Smith 270. The practice is to issue the writ upon special allocatur, but to allow the defendant his preliminary hearing upon a motion to quash: Murphy v. Farmers’ Bank, 8 Harris 415; Commonwealth v. McCutchon, 2 Pars. 205. The issue of the writ does not end the discretion of the court. Upon rule to show cause or motion to quash, where the material facts are not in dispute, the court will examine into the merits sufficient to satisfy themselves that the relators are entitled to sue out the w'rit, and that there is a primá facie case against the defendant: Commonwealth v. Burrell, 7 Barr 34; Commonwealth v. Farmers’ Bank, 2 Grant 392; Commonwealth v. Railroad Co., 8 Harris 518; Savings Institution Case, 1 Whart. 461; Commonwealth v. McCloskey, 2 Rawle 369.

      J. S. Price and F. 0. Breivster, Attorney-General, for relators.
    — The court will not quash an information on motion, but will leave the defendant to demur or plead to it: Cole on Crim. Information 70, 242; Rex v. Bricknell, 4 Burr. 2135; Rex v. Nixon, 1 Stra. 185; Rex v. Gregory, 1 Salk. 372; Com. Dig. Information, D. 4; Rex v. Stratton, 1 Doug. 227. A party exercising an office is a usurper unless he has a complete title: Cole on Crim. Inform. 138. They cited also Resp. v. Wray, 3 Dall. 490; Commonwealth v. Arrison, 15 S. & R. 132; Commonwealth v. McCloskey, 2 Rawle 369; Commonwealth v. Meeser, 8 Wright 343.
   The opinion of the court was delivered,

by Read, J.

— This is a writ of quo warranto, and the suggestion, filed and verified by affidavit, sets forth the charter of incorporation of “ The First Reformed Presbyterian Congregation in the City of Philadelphia,” and that at the regular annual election for the members of the board of trustees of said congregation the said relators were in due and regular form of law elected as a board of trustees of said congregation, and have been recognised by the session of the said congregation as being in full communion with the said church; and it then charges that the defendants have notwithstanding used and do still use the franchises, offices, privileges and liberties of a hoard of trustees of said congregation, and have usurped and do usurp upon the Commonwealth therein, to the great damage of the constitution and laws thereof; wherefore the said relators pray the process of law against the said defendants to answer the said Commonwealth by what warrant they claim to have, use and enjoy the franchises, offices, privileges and liberties aforesaid. This court has jurisdiction of this case, and it is a proper case for the issuing of a writ of quo warranto (Commonwealth v. Arrison, 15 S. & R. 127; Same v. Woelpper, 3 Id. 29), as settled by the uniform course of decision and practice for more than half a century.

This writ was allowed by the Chief Justice, and the rule to show cause is entirely dispensed with: Murphy v. Farmers’ Bank of Schuylkill County, 8 Harris 415 ; Commonwealth v. Commercial Bank of Pennsylvania, 4 Casey 383. In these cases motions to quash were made, and in the first the writ was quashed, whilst in the second the motion to quash the writ was overruled. Since the case in 4 Casey, which was thirteen years ago, motions to quash seem to have fallen into disuse, and the course pointed out by the Act of the 14th June 1836 has been pursued, the defendants either answering, pleading, or demurring to the suggestion filed.

Upon a motion to quash, it must be for some defect in the suggestion itself, and not for any matter outside of it. Mere defects in form that can be amended will not he regarded. All th$ affidavits and evidence that have been put before us by either side must be laid aside, and we must confine our attention to the suggestion alone. The suggestion seems regular in form, and if demurred to, it would seem might hold water: 4 Casey 387. It asserts the title of the relators, which upon demurrer would seem to be sufficient. We do not so decide now, but a reasonable doubt, or rather a reasonable belief, that such might be the case must oblige us to refuse the motion.

We express no opinion whatever on the merits which have been so ably argued by the counsel on both sides, and confine ourselves to the naked legal question arising out of the motion to quash.

The motion to quash the writ of quo warranto is overruled.


author: by Sharswood, J.

text:
    Birkey versus McMakin.
    1. Birkey made a note payable to T. who endorsed it; it was afterwards endorsed “ J. & B. McMakin.” Four years after its maturity and after the death of B. McMakin, it was found amongst his papers. _ In a suit by J. McMakin as survivor, evidence was given, that B. McMakin directed credit for the amount of the note to be given to an account of defendant against J. & B. McMakin. Held, to be evidence of appropriation to that account.
    2. Under this evidence, the defendant’s book of original entries against B. McMakin and J. & B. McMakin were evidence.
    3. The endorsement “J. & B. McMakin,” and the note being found in possession of B. McMakin, were evidence that the note belonged to him and he had the right to make the appropriation.
    4. The note was unclaimed in the possession of B. McMakin for four years after maturity and until after his death. Held,, to be corroborative of the ownership of B. McMakin and of his appropriation to the accounts.
    March 1st 1870.
    Before Read, Agnew and Sharswood, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: Of January Term 1869.
    This was an action of assumpsit, brought January 4th 1868, by Joseph B. McMakin, who survived Benjamin McMakin, they having been partners under the firm of J. & B. McMakin, against William J. A. Birkey.
    The suit was on the following note:—
    “$300 Philadelphia, July 24th 1863.
    Ninety days after date, I promise to pay to the order of Dr. Samuel Tucker, three hundred dollars, without defalcation, value received. Wm. J. A. Birkey.
    (Endorsed) Samuel Tucker, M.,D.
    J. & B. McMakin.”
    On the trial, before Hare, P. J., the plaintiff, having given the note in evidence, rested.
    The defendant called William Birkey, his son, who testified that the plaintiff told him he had known nothing of the note till after the death of Benjamin ; whose daughter had told him that she had found it in her father’s pocket-book after his death; the endorsement, “ J. & B. McMackin,” is the writing of Benjamin. There were twelve notes, commencing January 5th 1860, each at 90 days for $300; each note was given to take up a preceding one; all had been delivered to Benjamin and had been returned by him, except one which was missing and for which he gave a receipt, October 9th 1860, which was the day the note fell due. “ When the last note was due, Benjamin said, It is not necessary to renew it; I have it; give credit on my account. The account we have against him and his brother. The words were, ‘ against me and my family;’ lie said, charge it to his account. He told me, if my of his family came, charge it to his account.”
    March 7th 1870,
    The plaintiff then proved books, which were produced, to be his books of original entries. . The books contained charges against “Joseph McMakin,” and “Benjamin McMakin” from 1856 to 1859; against “Captains Joseph and Benjamin McMakin,” from 1859 to November 1860; against “Captains McMakin,” from 1861 to December 1864,” and against “ Captains J. & B. McMakin,” from January 2d 1865 to October 1866.
    William Birkey, being recalled, testified:—
    “ I know the defendant got the money; he received it from Capt. Benjamin McMakin. The first note was discounted in bank, and my father got the money. So far as I know, all the notes, including the last, were in bank.”
    The defendant then offered the books in evidence; their admission was objected to; they were rejected, and a bill of exceptions sealed.
    The court instructed the jury to find for the plaintiff. The verdict was for the plaintiff for $5380.75.
    Judgment having been entered on the verdict, the defendant took a writ of error. He assigned for error the rejection of his offers of evidence, and the instructions of the court.

      Q-. M. Bldridge and D. Paul Brown, for plaintiff in error,
    cited Hodge v. Comly, 2 Mo. 286.

      H. Hanson (with whom was D. Dougherty), for defendant in error.
    — The endorsement showed that the note was J. & B. McMakin’s, the contrary could not be proved by parol: Harbold v. Kuster, 8 Wright 392. A partner cannot have an individual debt charged against the firm : Purdy v. Bowers, 6 Barr 492; King v. Faber, 10 Harris 21. The set-off and the claim were in different rights: Walker v. Eyth, 1 Casey 216; Milliken v. Gardner, 1 Wright 456.
   The opinion of the court was delivered,

by Sharswood, J.

— The note in suit fell due in October 1863, and according to the testimony of William Birkey: “ When the last note was due, Benjamin said, It is not necessary to renew it; I have it; give credit on my account. The account we have against him and hi’s brother. The words were ‘ against me and my family;’ he said charge it to his account.” This was evidence of an appropriation by Benjamin McMakin at that time, of the amount of this note to the payment or extinguishment of whatever he then owed the maker, and perhaps also of what he and his brother owed jointly; for the jury might well have inferred an acknowledgment of a liability on a joint account, for services rendered to each member of the firm severally. It ought to have gone to the jury as such; for at that time the bar of the statute had not run against the claim. We think, therefore, that the book entries proved by the oath of the defendant against Benjamin McMakin, and Captains J. & B. McMakin, and Captains McMakin, ought to have been received to show a set-off, which would be available, if the jury believed that the note in suit was the separate property of Benjamin. There can be no doubt that there was evidence of this. But the court below appear to have thought that it contradicted the endorsement — “ J. & B. McMakin.”

This endorsement was shown to have been in the handwriting of Benjamin McMakin, and as it appears to us so far from contradicting it rather confirmed the theory of the defence. It showed primá facie that J. & B. McMakin had assigned their interest or title in the note, and why not to one of the members of the firm as well as a stranger ? If then Benjamin McMakin was the owner of. the note when it fell due he had a perfect and unquestionable right to direct the appropriation of it to the payment of any debt due by him, or due by himself and brother to the maker. The fact that it remained unclaimed for more than four years after maturity and until after the death of Benjamin McMakin, and was found by his daughter in her father’s pocket-book with other papers, tended strongly to corroborate the defence.

Judgment reversed, and venire facias de novo awarded.


author: by Agnew, J.

text:
    Bingham’s Appeal.
    1. The intention of the donee of a power is the criterion to determine its execution.
    2. The intention must appear in the instrument, which must refer to the power to be executed or actually dispose of its subject.
    3. The intention to execute may be ascertained, when the instrument cannot have any operation, except that the donee intended to execute the power.
    4. Positive legal presumptions cannot judicially arise upon equivocal or uncertain conditions of fact.
    5. Merely the fact that the bequests exceed the testator’s estate, will not manifest an intention to execute a power.
    6. The subject of a power is the property of the donor, not of the donee, in whom it is but a trust.
    7. An English statute provided that a bequest of personal property, &e., in a general manner, shall include personal property of which the testator had the appointment. Held, that such bequest by the donee residing in England, of a power created by the will of a resident of Pennsylvania, did not pass property under the will.
    8. The law of the situs of the subject of the power, controls the execution of the power.
    March 1st 1870.
    Before Read, Agnbw and Sharswood, JJ, Thompson, C. J., at Nisi Prius.

      Appeal from tbe decree of the Orphans’ Court of Philadelphia: No. 259, to January Term 1870: In the matter of the account of Charles Willing, trustee of Alexander B. Bingham, under the will of William Bingham, deceased.
    William Bingham was domiciled in Philadelphia; his will was proved there June 16th 1856.
    In the first paragraph the testator says :—
    “ I hereby declare that my domicile is now, and has always been, notwithstanding my residence abroad, in the said city of Philadelphia, and that I have neither done or intend to do any act whereby to make any change thereof, and that this my last will and testament and appointment, is and shall be made, taken and considered to have been made under and subject to the laws of the said state of Pennsylvania, and that my whole estate, real and personal, whether standing in my own name or in the name or names of any trustee or trustees for my use or subject to my appointment, shall be subject to and divided and distributed according to the provisions hereof, and according to the laws of said state.”
    He bequeathed one-fifth of the residue of his personal estate to trustees, in trust, “to invest and keep the same invested in English or American securities, according to the best judgment of the said trustees or a majority of them; and after paying the expenses of this trust, to pay over the whole net income thereof, unto my son Alexander Baring Bingham, his own receipt or orders to be the only sufficient vouchers for the payment thereof, for and during the full term of his natural, life, and immediately upon his death, to divide the same equally among his children, or the issue of any deceased child, living at the time of his death, the issue of said deceased child taking only their parents’ share.”
    He further provided that the income payable as aforesaid should not be liable in the hands of the trustees to the debts of the cestuis que trust, nor be subject to alienation or anticipation either by act of law or of the parties.
    In the 14th clause he directed as follows : “ And I further will, direct and appoint, that if either of my children shall survive me and then die, never having been married, then and in such case (and in no other), he, she or they shall have after my death, the power of bequeathing his, her or their share of the said residuary personal estate, held in trust for them severally and respectively as aforesaid by any last will and testament, signed by their own hand, in the presence of two competent witnesses, to such person or persons as they shall think proper, and the trustee or trustees, for the time being as aforesaid, shall pay over the same to such legatee or legatees, whose receipt therefor shall be a full and sufficient discharge for such payment.”
    In the 15th clause: “ And I further will, direct and appoint, that if either of my said children shall die either before or after me unmarried and intestate, or if married, or having been married, without leaving any lawful issue living at the time of their respective deaths, then the share held in trust for such of my children respectively, as may so die as aforesaid, shall be equally divided by the said trustee, among my then surviving children, and the issue of any deceased child, such issue taking only the parents’ share; the said accruing shares to be subject to all the trusts, limitations and provisions herein contained, respecting the said respective original share or shares.”
    Alexander Baring Bingham died in 1865 in England, which was his place of domicile, having never been married.
    He left a will, which has been proved in Pennsylvania, and letters of administration c. t. a. have been granted to the Pennsylvania Company for Insurance on Lives, &c.
    The will was, in part, as follows : “ I, Alexander Baring Bingham, Esquire, second and only surviving son of the late William Bingham, Esquire, of Philadelphia and Paris, and Marie Charlotte Chartier de Lotbiniere, his wife, at present residing at Hatchett’s Hotel, London, do hereby declare this to be my will. I give the sum of twenty thousand pounds sterling to the trustees of this my will, hereinafter named, &c., upon trust, to invest the same upon government and real securities in Great Britain or in the United States of America, or in the provinces of Upper or Lower Canada, or upon'the guarantied stocks or securities of any colonial dependency of the British Empire, &c., * * * and to stand and be possessed of and interested in the said sum of twenty thousand pounds, &c., and the annual produce or income thereof and hereinafter referred to (as the said trust legacy) upon trust to pay the ■interest, dividends and annual produce thereof unto my nephew, William Alexander Baring Bingham, during the term of his natural life, and after his decease to stand possessed of the said trust legacy in trust for such son of my said nephew as shall first or alone may attain the age of twenty-one years, for his absolute use and benefit; but if my nephew shall have no such son who shall attain twenty-one, then, &c., * * * I give one thousand pounds sterling to each of the children of my sister Marie Louise Bingham, wife of Count du Bois Guilbert, Julia Charlotte Bingham, wife of Count du Douhet Bomanges, and Georgiana Jelly Bingham, wife of Count d’Epremesnil, living at my decease, &c. * * * Part of my personal estate may be invested at the time of my decease in bonds, mortgages and other securities in the United States of America or in the province of Lower Canada. Now I authorize my trustees and executors hereinafter named to continue such investments as they shall think fit, &c. * * * I give, devise and bequeath all the rest and residue of my property, &c., * * * unto the trustees hereinafter named, &c., upon trust to manage, sell or lease my real estate at their discretion during the minority of my said nephew, and to collect and get in any part of my personal estate, &c., * * * and to stand possessed of and interested in such residuary real and personal estate and the annual income and proceeds thereof upon trust during the minority of my said nephew, to collect and receive the annual income thereof, &o., * * * and to stand possessed of and interested in my said residuary real and personal estate and any accumulations of the income thereof for the sole use and benefit of my nephew, the said William Alexander Baring Bingham absolutely. I authorize and empower my trustees during the minority of any legatee to pay any portion of the income of his or her bequest to the parent or other legally constituted guardian for his or her maintenance and education.”
    He appointed Alexander Hugh Baring and Henry Bingh'ain Mildmay, of London, to be the trustees and executors of his will.
    The account of the trustee was referred to Edward Olmstead and Peter McCall, Esquires, as auditors, to adjust the account and report distribution.
    The claimants of the fund were the guardians of William Alexander Baring Bingham, who claimed that the will of Alexander Baring Bingham was an execution of the power under the will of William Bingham; and the surviving three daughters of William Bingham, who claimed that the will of Alexander was not an execution of the power, and that they, with W. A. B. Bingham, took under the 14th and 15th clauses of William Bingham’s will.
    The auditors decided that the will of Alexander B. Bingham was not an execution of the power, and awarded the fund to the daughters and grandson of William Bingham. On exceptions, the Orphans’ Court (Ludlow, J.) confirmed the auditors’ report. The guardians of William A. B. Bingham and the Pennsylvania Company for Insurance on Lives, &c., administrators c. t. a. of Alexander B. Bingham, appealed to the Supreme Court, and assigned the decree of confirmation for error.
    Strong, for appellants.
    — The question as to the execution of a power is one of intention : Sugden on Powers 367; 1 Jarman on Wills 631; Thompson v. Garwood, 3 Wharton 287 ; McKonkey’s Appeal, 1 Harris 259; Keefer v. Schwartz, 11 Wright 508; White v. Hicks, 43 Barbour 64. The law of the country where Alexander was domiciled is to govern: 2 Greenleaf Ev. § 671; Harrison v. Nixon, 9 Peters 503; Story’s Conflict of Laws, § 479 a.; Trotter v. Trotter, 4 Bligh (N. S.) 502; Anstruther v. Chalmer, 2 Simons 1; Thornton v. Curling, 8 Id. 308; Price v. Dewhurst, 4 Mylne & Craig 81; Burge Comm. on Col. and For. Law, pt. 2, ch. 9, p. 858; Boys v. Bedale, 1 Hem. & M. 805; Laurenville v. Anderson, 3 Swaby & Tristram 44; Hare v. Nasmyth, 2 Addams Eccl. R. 25; Schultz v. Dambmann, 3 Bradford R. 377.
    March 21st 1870,
    The English statute 1 Vict. c. 26, § 27, provides that “ a bequest of the personal estate of the testator, or any bequest of personal property, described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend (as the case may be) which be may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will.”
    Appointments under wills are construed as ordinary bequests : Harvey v. Steacy, 1 Drewry 127. The intention is to be gathered from the instrument executing the power, not from that creating it: Thompson v. Garwood, supra.

      It. G. McMurtrie, for appellees.
    — The intent to execute must appear on the instrument: Wetherill v. Wetherill, 6 Harris 265; Andrews v. Emmot, 2 Brown Ch. C. 297; Jones v. Tucker, 3 Meriv. 533; 1 Sug. on Powers 385-9.
    The testamentary instrument executing a power is part of that creating it: Commonwealth v. Duffield, 2 Jones 279; 1 Sug. on Powers 155, 156. Its validity is to be determined by the law of the donor’s domicile: Tatnall v. Hankey, 2 Moore P. C. Cas. 342. A power is an agency for another’s estate: Heffernan v. Addams, 7 Watts 121.
   The opinion of the court was delivered,

by Agnew, J.

— It may be admitted that the intention of the donee of a'power is the true criterion to determine its execution. But this intention must appear in the instrument itself. In Pennsylvania the rule is, that the instrument must refer to the power to be executed, or actually dispose of the subject of it: Wetherill v. Wetherill, 6 Harris 265; Thompson v. Garwood, 3 Whart. 287; Meconkey’s Appeal, 1 Harris 259 ; Keefer v. Schwartz, 11 Wright 508; Commonwealth v. Duffield, 2 Jones 280; Heffernan v. Addams, 7 Watts 116. When the donee of a power refers to it, or when he disposes of the subject of it by such a description as identifies it, the intent to execute it is free from uncertainty. A third mode of ascertaining the intention is, when the instrument of execution cannot have any operation except on the ground that the donee intended to execute his power; as where it is a power to dispose of real estate and he has none of his own. It is manifest the third mode is rather a legal presumption than a manifestation of intention — a positive inference drawn from a negative fact. But positive legal presumptions cannot judicially arise upon equivocal or uncertain conditions of fact. Hence, t.he mere fact that the bequests in a will exceed the testator’s estate cannot draw after it an intention to execute the power. The excess may arise from a mistaken estimate, or from changes in the testator’s property — a mistake common to that numerous class who keep no accounts, or imperfect ones, of their affairs. The evidence of this is the common occurrence of the abatement of legacies. In the present case, Alexander Baring Bingham had a large estate of his own, too large to make the inference clear that he must have intended to execute the power contained in the will of William Bingham. The auditors have reported no clear facts to sustain such a conclusion. It is possible, but not certain, that he intended an execution of the power. It must not be forgotten, when handling such a question, that we are dealing with the property of another, and not with that of the donee of the power. In the donee it is but a trust, and those interested in the estate of William Bingham have a right to know that the will of their testator has been actually executed as he intended by the donee of his power. Hence, they are entitled to certainties, not mere conjectures or possibilities. The New York case of White v. Hicks, 43 Barb. 64, is entitled to no weight here. Justice Sutherland admits that the English authorities, since the Revolution, are strongly against evidence of intention, dehors the instrument, and states the will in regard to personal property is, that you cannot look beyond the face of the will for an intent to execute the power. The question was one of evidence, and its character peculiar; and, at the close of his opinion, he clearly derives his conclusion from local and in part statutory considerations in determining that the evidence of the intrinsic fact was properly received.

The will of Alexander B. Baring refers to his own estate, and none other. When he says, “part of my personal estate may be invested at the time of my decease in bonds, mortgages and other securities in the United States of America,” it is straining the words to say he meant not his own but the estate of William Bingham.

There is no reference whatever in any part of the will to any other estate than his own. The estate of William Bingham he knew belonged to the United States, and was administered under authority there. It was not likely to be removed out of the United States, and had he meant William Bingham’s esta-te, the strong probabilities are he would have referred to it as being there. As a question of interpretation, properly so called, it is impossible to infer an execution of the power from the will of Alexander B. Bingham. This leads us to consider the effect of the statute of 1 Vict. c. 26, § 27, upon his will, Alexander then being domiciled in England. It is doubtless in the power of the Parliament to say that a bequest of a testator’s own estate shall be deemed to extend to the estate of another, over which the testator has a power, unless lie express the contrary intention. But this effect is produced hy operation of law, not by the words of the will. It is manifest that no possible judicial interpretation of the words “my personal estate” can make them mean the estate of another. It is simply a legal effect or operation of law by statutory construction which can do so. But where the situs both of the will containing the power, and of the property subject to it, lies beyond the domain of Parliament, it is evident that the statutory construction of the instrument of execution can have no operation upon it. That would be to subject Pennsylvania rights to English dominion. Whether a power contained in a Pennsylvania will over Pennsylvania property has been duly executed, is evidently a question of Pennsylvania law, and not that of a foreign country having no jurisdiction. The proof of this is the possession we have, and the right we are now exercising in determining the very question before us. The fallacy of calling it interpretation, if we should give effect to the statute of Victoria, is seen in this, that judicially we can take no cognisance of the statute. It must come to us in the form of proof of a foreign law, and the moment it comes in that form we perceive that we are not simply interpreting the will, but we are constructing for it a new meaning by virtue of a foreign statute.

The rule that the same interpretation of a will should be given in a foreign country which the will has in the place of domicile, is misapplied to this case. That'is precisely the rule we are now applying, the will, the property and the domicile of William Bingham being within Pennsylvania, the law of this state must govern the interpretation both of the power and the execution of it. If this were a case of the execution of a power created by a British will, the statute of Victoria would govern the execution of the power, and we should have to say that Alexander B. Bingham’s will was a good execution of the power. The exercise of Alexander B. Bingham’s power of dominion over the property is necessarily regulated by the law which governs the subject of his dominion. It is not the estate of Alexander B. Bingham, but that of William Bingham, which is the subject of the exercise of the power, and its situs being here, it was therefore controlled by our law. The case was well decided by the learned auditors and the court below, and is therefore affirmed.


text:
    McKibbin versus Martin. McKibbin versus Kline.
    1. Fraud in fact in the transfer of chattels, consists in the intention to prevent creditors from recovering their just debts, by an act which withdraws the debtor’s property from their reach.
    2. Acts which though not fraudulently intended, yet as their tendency is to defraud creditors, if they vest the property of the debtor in his grantee, are void for legal fraud.
    / 3. Legal fraud is tantamount to actual fraud.
    ,, 4. Actual fraud is for the jury.
    ' 5. Legal fraud, where the facts are undisputed or are ascertained, is for the court.
    6. Clow v. Woods, 5 S. & R. 275, is the magna ¿harta of the law of Pennsylvania on the subject of actual and legal, frauds in the transfer of chattels.
    7. The retention of possession by the vendor of chattels is a fraud in law / whenever they are capable of delivery and no honest and fair reason can be given for the vendor not giving up possession to the vendee.
    8. Where there is evidence from which a jury could infer under instruc- ' tions of the court, that thére had been an actual and exclusive change of possession, the question should be submitted to them.
    . 9. Whenever the subject of the sale is capable of actual delivery, it must accompany and follow the sale.
    10. The court is to judge whether there is sufficient evidence to infer such delivery.
    11. Where the subject of the sale is not reasonably capable of an actual '^delivery, a constructive delivery will be sufficient.
    12. In such case it is only necessary that the vendee should assume the control of the subject so as reasonably to indicate to all concerned, the change of ownership.
    /13. The question is, did the vendor do all that might be reasonably expected in the case of a real and honest sale.
    ■ 14. In the case of a large hotel, it is enough for the vendee of the furni- " ture, &e., &c., to assume the direction and control of them in such an open and notorious manner as usually accompanies an honest transaction.
    15. The possession of the chattels by the vendee must be exclusive of the vendor.
    ... 16. A possession which in law is concurrent, is such as will lead persons to ’ infer that there has been no actual change.
    , 17. Where there has been a sufficient delivery, actual or constructive, and - the vendee is in possession, the fact that the vendor is employed about the establishment in a capacity holding out no indicia of ownership, is not such a concurrent ownership as the law condemns, and the question is for the jury.
    18. Barra. Reitz, 3 P. F. Smith 256, approved; Steelwagon v. Jeffries, 8 Wright 407, distinguished.
    March 2d 1870.
    Before Read, Agnew and Sharswood, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 10 and 11, to July Term 1869.
    The cases, the subject of these writs of error, were two feigned issues under the Sheriffs’ Interpleader Act, in both of which Chambers McKibbin was claimant and plaintiff; Thomas J. Martin was tbe defendant in one issue and Charles D. Kline in the other. The issues depended on the same facts and were tried together January 13th 1869, before Hare, P. J.
    The defendants had respectively recovered judgments against Jeremiah and W. C. McKibbin, who composed the firm of J. & W. C. McKibbin, and had been proprietors and conductors of the Merchants’ Hotel, a large hotel in the city of Philadelphia. Executions were issued on the judgments, in September 1868, under which the furniture, &c., in the hotel were levied upon as their property and claimed by the plaintiff. The issues were to try the ownership of these goods.
    The plaintiff gave in evidence the following “ Articles of agreement made the 11th day of June 1868, between Jeremiah Mc-Kibbin and William C. McKibbin, copartners as J. & W. C. McKibbin of the one part and Chambers McKibbin of the other, Whereas, on the first day of February, A. D. 1865, the said Chambers McKibbin, being the owner and proprietor at the time, of the lease and good-will of the Merchants’ Hotel, situated on the west side of Fourth street, south of Arch street, in the city of Philadelphia, also of its furniture and fixtures of all kinds, &c., and generally of all its arrangements and appertenances of every nature for the transaction of the business of hotel-keeping, on the said 1st February 1865, sold the same to the said J. & W. McKibbin, for the sum of $30,000, of which $5000 were to be paid in twenty days, and $5000 in each of five other payments, respectively in 6, 12, 18, 24 and 30 months, with interest for deferred time, from February 1st 1805, for each of which payments the said J. & W. McKibbin gave to the said Chambers McKibbin their promissory note ; and whereas the whole of said purchase-money remains due and unpaid, the parties of the first part having wholly failed to pay any of said notes or any interest thereon; and whereas in the event of default in their payment, it was agreed that upon request of said Chambers McKibbin, said premises should be reconveyed :
    “ Now, therefore, these presents testify that for and in consideration of the surrender and cancellation of the said promissory notes and of the debt they represent, &c., and in pursuance of the aforesaid agreement and understanding at the time of the original purchase, the said parties of the first part have sold, &c., unto the said party of the second part, the lease of the said the Merchants’ Hotel premises, together with the good-will, fixtures and appertenances of the business now transacted in said hotel, and all and singular the furniture, &c., and generally all things for the transaction of the business of hotel keeping, to them the parties of the first part belonging, and now to said premises and the business there transacted pertaining.’’
    Jeremiah McKibbin, a son of Chambers and one of the defendants in the executions, testified amongst other things: “Upon sale, the property, in June 1868, passed into the hands of my father— the property described in bill of sale. The ‘ Press’ advertisement of dissolution — also in ‘ Age’ — are authorized advertisements of the change. From 11th of June 1868, C. McKibbin carried on the business of the hotel. Have had no interest in business since sale. Father has lived in the hotel since 1865. He has received the income, paid the bills and conducted the business since sale. I and my brother remained as before, and I was superintendent. I have received nothing but compensation for services, at the rate of $3500 a year, but there was no express bargain. Bills of hotel were made out in name of C. McKibbin as soon as could be printed. Bills are made out every day more or less. The sign ‘ Merchants’ Hotel’ in front of hotel. No sign put up of C. McKibbin. My father boarded with me and paid no board. My mother had general charge of house and no board was charged. He assumed general charge of business as soon as sale. No express contract has been made with me. He directed the payment of bills and business generally. He has since sale received proceeds of hotel and paid money out when necessary. Journal was of J. & W. C. McKibbin up to sale, and journal of C. McKibbin after sale in same book. I do not reside in hotel. The hotel deals with many people — probably 200 — and with all, bills are fnade in name of father since sale. Boarders to firm, who were indebted, had to pay boarding in full to C. McKibbin.”
    George Jacoby testified: “ I was bookkeeper for two years, to middle December last. We were ordered on 16th of June to open new set of books, and did so in name of C. McKibbin. From that time he conducted the business. ‘Merchants’ Hotel’ is the only sign that was on the hotel for two years; was no sign of J. & W. 0. McKibbin. Business was transacted, bills printed and receipted and rendered in name of O. McKibbin. Several were rendered in name of old firm and were sent back for correction. Cash-notes, checks, &c., were signed by C. McKibbin.”
    The advertisements referred to in the testimony of Jeremiah McKibbin are as follows:—
    “ The copartnership heretofore existing between the subscribers in the business of conducting the Merchants’ Hotel of Philadelphia, is dissolved, they having disposed of their interest therein to Chambers McKibbin. Jeremiah McKibbin,
    W. C. McKibbin.”
    “ The undersigned has again become owner of the ‘Merchants’ Hotel,’ and will hereafter conduct and continue the business. He invites a continuance of its former patronage.
    Chambers McKibbin.”
    The court submitted the question of good faith to the jury, and reserved the following point: — “Whether under all the evidence there was such actual, visible, notorious delivery and change of possession from the sons to the father of the furniture as would be valid in law against the creditor of the vendor.”
    March 10th 1870,
    The jury found for the plaintiff. The court afterwards entered judgment for defendant in the feigned issue, on the point reserved.
    The plaintiff took out a writ of error in each case, and assigned the entering of judgment for the defendant on the reserved point, for error.

      A. McQlure and T. Quyler, for plaintiff in error,
    cited McVicker v. May, 3 Barr 224; Long v. Knapp, 4 P. F. Smith 518; Barr v. Reitz, 3 Id. 256; Hugus v. Robinson, 12 Harris 1; Benford v. Schell, 5 P. F. Smith, 393.

      T. J. Diehl and P. Archer, Jr. (with whom was L. Q. Oassidy), for defendants in error,
    cited Clow v. Woods, 5 S. & R. 275; Cadbury v. Nolen, 5 Barr 320; Dunlap v. Bournonville, 2 Casey 72; Young v. McClure, 2 W. & S. 147; Milne v. Henry, 4 Wright 352; Brawn v. Keller, 7 Id. 104; Edwards v. Harben, 2 T. R. 587; Babb v. Clemson, 10 S. & R. 419; Hoffner v. Clark, 5 Wharton 545; Steelwagon v. Jeffries, 8 Wright 407; Dewart v. Clement, 12 Id. 413; Barr v. Reitz, supra ; Meyers v. Wood, 1 Phila. R. 24; Randall v. Parker, 3 Sandford 97; Travers v. Ramsay, 3 Cr. C. C. R. 354; Reed v. Minor, Id. 32; Hamilton. v. Russel, 1 Cranch 310; The Romp, Olcott 196; Meeker v. Wilson, 1 Gall. 423; Cadogan v. Kennett, Cowp. 432; Billingsley v. White, 9 P. F. Smith 464. Responsibility cannot be avoided by an advertisement: Williamson v. Fox, 2 Wright 214; Watkinson v. Bank of Penna., 4 Wharton 482; Little v. Clark, 12 Casey 114; Lincoln v. Wright, 11 Harris 76.
   The opinion of the court was delivered,

by Sharswood, J.

— There are probably no more difficult and embarrassing questions than those which relate to the respective provinces of the court and of the jury to determine what is law and what is fact. It would require a volume to consider the subject in all its bearings, and deduce accurate and intelligible principles from the great mass of the decided cases, and a philosophical treatise on this important head is still I think a desideratum, of our legal literature. There are undoubtedly some rules clearly established — these ' are plain lines of demarcation, but there is a border land of controversy in which the opposing principles seem to be in continual conflict, the victory sometimes inclining to one side and sometimes to the other. This conflict often has ended in a reasonable compromise by which the question has become what is termed a mixed question of law and fact, to he submitted to the decision of the jury under proper instructions from the court.

One of the questions upon which difficulty has often arisen is fraud in the sale or transfer of chattels under the statute of 13 Eliz. c. 5, Roberts’s Dig. 295. Such fraud may be either actual or legal. Actual fraud or fraud in fact consists in the intention to prevent creditors from recovering their just debts by an act which withdraws the property of a debtor from their reach. Fraud in law consists in acts which, though not fraudulently intended, yet as their tendency is to defraud creditors if they vest the property of the debtor in his grantee, are void for legal fraud, which is deemed tantamount to actual fraud, full evidence of fraud, and fraudulent in themselves, the policy of the law making the acts illegal: Baldwin, J., in Hanson v. Eustace, 2 How. 688. Actual fraud is always a question for the jury — legal fraud, where the facts are undisputed or are ascertained, is for the court: Dornick v. Reichenback, 10 S. & R. 90. “As remarked by an eloquent writer,” says Chief Justice Gibson, “these statutes of Elizabeth produce the most beneficial effects by placing parties under a disability to commit fraud in requiring for the characteristics of an honest act such circumstances as none but an honest intention can assume; and they seem to have been expressed in general terms purposely to leave room for a large interpretation by the judges, who, in accordance with the spirit rather than the words, have engrafted on them such artificial presumptions and legal intendments as are ordinarily subjects of judicial construction. In fact they act exclusively by presumptions, not always inflexible indeed, but sometimes amounting to legal conclusions:" Avery v. Street, 6 Watts 247.

In Twyne’s Case, which came up in the Star Chamber in 44 Eliz., and is reported 3 Rep. 80 b, Moore 638, one of the badges of fraud was declared to be that “ the donor continued in possession, and used the goods sold or given as his own; and by reason thereof he traded and trafficked with others, and defrauded and deceived them.” No distinction was attempted between actual and legal fraud, and the tribunal forbade any question as to law and fact. It is unnecessary to trace the decisions in England. Clow v. Woods, 5 S. & R. 275, decided by this court in 1819, is the magna charta of our law upon this subject. The principles settled in that case have been recognised and affirmed by a bead-roll of subsequent decisions, which it would be a mere affectation of learning to cite. Without adverting to other points, it established that retention of possession was fraud in law wherever the subject of the transfer was capable of delivery and no honest and fair reason could be assigned for the vendor not giving up and the vendee taking possession. Since then the courts have been principally occupied in determining when the evidence of change of possession was such as to present a question of law for the court or of fact for the jury.

No point as to actual fraud arises on this record. That was submitted to the jury, and decided by them in favor of the plaintiff. The whole question of legal fraud, however, was reserved and judgment entered on the reservation for the defendant. If there was evidence from which a jury would have been justified in inferring, under instructions from the court, that there had been in point of fact an actual and exclusive change of possession, it ought, as we think, to have been submitted to them.

The reserved point comprehends two questions, which, in the consideration of the case, it will be best to keep distinct. First: was there evidence from which the jury would be'permitted to find such a delivery, actual or constructive, as the law requires to make the sale valid as against creditors ? Second: was the possession taken by the vendee exclusive of the vendors or concurrent with them, in point of law ?

1. Whenever the subject of the sale is capable of an actual delivery, such delivery must accompany and follow the sale to render it valid against creditors. The court is the tribunal to judge whether there is sufficient evidence to justify the inference of such a delivery. If there is any question upon the evidence as to the facts, or resting upon the credibility of witnesses, the determination of that must be referred of course to the jury. But if not, it is incumbent upon the court to decide it, either by a judgment of nonsuit or a binding direction in the charge: Young v. McClure, 2 W. & S. 147; McBride v. McClelland, 6 Id. 94; Milne v. Henry, 4 Wright 352; Dewart v. Clement, 12 Id. 413. But it often happens that the subject of the sale is not reasonably capable of an actual delivery, and then a constructive delivery will be sufficient. As in the case of a vessel at sea, of goods in a warehouse, of a kiln of bricks, of a pile of squared timber in the woods, of goods in the possession of a factor or bailee, of a raft of lumber, of articles in the process-of manufacture, -where it would be not indeed impossible, but injurious and unusual to remove the property from where it happens to be at the time of the transfer: Clow v. Woods, 5 S. & R. 275; Cadbury v. Nolen, 5 Barr 320; Linton v. Butz, 7 Id. 89; Haynes v. Hunsicker, 2 Casey 58; Chase v. Ralston, 6 Id. 539; Barr v. Reitz, 3 P. F. Smith 256; Benford v. Schell, 5 Id. 393. In such cases it is only necessary that the vendee should assume the control of the subject so as reasonably to indicate to all concerned the fact of the change of ownership. Where nothing of the kind has taken place, it is the duty of the court to pronounce a mere symbolical delivery to be insufficient; but where there is evidence of such assumption of control, it is for the jury to say whether it was boná fide or merely colorable, and whether it was enough to give notice to the world. The question in such case is, did the vendee do all that he might reasonably be expected to do in the case of a real and honest sale ? In Barr v. Reitz, 3 P. F. Smith 256, the rule was clearly expressed in the opinion of the court by Mr. Justice Agnew. “In considering the question what is an actual delivery, the nature of the property and circumstances attending the sale must be taken into the account. We are not, in carrying out a mere rule of policy, to confound all distinctions between that which is capable of easy delivery and that which is not. Squared timber lying in the woods, or piles of boards in a yard, are incapable of the same treatment as a piece of a cloth, or a horse. So there are many cases which allow the force of those circumstances, which take away any false color or appearance of ownership remaining in the seller.” Then, after citing a number of decisions, it is added: “ But without affirming these doctrines to the extent these cases might seem to warrant, it is sufficient to say they are illustrations of the principle we have stated, that the circumstances may prevent the court from pronouncing it a fraud, per se, and carry the case to the jury on the facts with proper instruction from the court on the law, if the jury find the delivery of possession merely formal or constructive.” The distinction founded upon the principle here stated between a question of law and one of fact, may be illustrated by a familiar example. Upon the sale of a single board, or of a cartload of boards, it would not do to set up a constructive delivery by marking, and letting it remain where it was until it was convenient to remove it. The court would he bound to hold as matter of law, that such articles were capable of actual delivery. But it would be different with a board-yard, filled with many piles of lumber. There the circumstances are such as to render an actual delivery and removal impracticable, or at least injurious and expensive. The vendee must assume the control, and do all that an honest man would reasonably be expected to do to advertise the public of the sale.

This seems to be just the difference between the case of Steelwagon v. Jeffries, 8 Wright 407, upon which the court below relied, and the evidence as it appears on this record. That was the sale of the furniture of a dwelling-house. Nothing is easier than to remove it to another house, or if that be not necessary, for the vendor to leave the house and the vendee to take possession with all the ordinary indicia of ownership. That is the ground upon which the present Chief Justice placed that determination. “Why,” says he, “is not the transfer of household property to be actual and exclusive .like that of any other personal property ? It is as capable of manual occupancy and removal as almost any other kind. If the sale be actual it usually is removed: if it be only for the purpose of securing it against creditors, why shall it not stand on the same platform with other property, capable of delivery and change of possession ?” But the circumstances of a large establishment like the “ Merchants’ Hotel” are entirely different. Here are many hundred- lodging-rooms, parlours and sitting-rooms, besides the culinary department with its necessary offices, all fully furnished. To what other building can the vendee remove them, or at least without great deterioration and expense? They are valuable mainly for the purpose for which they are used and in the place where they are situated. It is enough that the vendee assume the direction and control of them, and in such an open, notorious manner as usually accompanies an honest transaction. Whether all was done that ought to have been done in this instance, and whether the change of possession was real and boná fide — not merely colorable and deceptive — leaving the actual possession and control in the vendors, were questions of fact which ought to have been submitted to the jury.

2. But the law undoubtedly is, that not only must possession be taken by the vendee, but that possession must be exclusive of the vendor. A concurrent possession will not do. “ There cannot in such case,” said Mr. Justice Duncan, “be a concurrent possession ; it must be exclusive, or it would by the policy of the law be deemed colorable:” Clow v. Woods, 5 S. & R. 287. And again, in Babb v. Clemson, 10 Id. 428: “ There cannot be a concurrent possession in the assignor and assignees"; it must be exclusive, or it is deemed colorable and fraudulent. To defeat the execution, there must have been a boná fide substantial change of possession. It is mere mockery to put in another person to keep possession jointly with the former owner. A concurrent possession with the assignor is colorable.” But what is the concurrent possession which will be deemed such as matter of law ? Evidently as owner, or accompanied with the ordinary indicia of ownership — such as will lead any person not in the secret to infer that there has been no actual change. The vendor must appear to occupy the same relation to the property as he did before. In such a case the court must pronounce it fraudulent and colorable <per se. We have been referred to three cases only in our books which were determined on this ground. These were all of the character I have stated: Hoffner v. Clark, 5 Whart. 545 ; Brawn v. Keller, 7 Wright 104; Steelwagon v. Jeffries, 8 Id. 407. Certainly it may be considered as settled by abundant authority in this court that where there has been a sufficient actual or constructive delivery to the vendee, and he is in possession, the fact that the vendor is employed as a clerk or a servant about the establishment, in a capacity which holds out no indicium of ownership, does not constitute such a concurrent possession as the law condemns. In such, cases it is a question for the jury whether the change of possession has been actual and bonfi fide — not pretended, deceptive and collusive. If there are facts tending to show that he had a beneficial interest in the business; that the proceeds of it went to him beyond a reasonable compensation for his services; that he had an unlimited power to draw upon the till; or that with the knowledge of the vendee he took money to pay his own debts — these are facts for the jury. I will refer to a few of the cases which sustain this view. Thus in McVicker v. May, 3 Barr 224, a sale by a father to a son; when the son had removed to another tavern-stand the father continued to live with him, and was employed about the house as a servant. “ When the son opened the new tavern,” say the court, “his mother and sister kept house for him, and his father did jobs; but the son’s possession and use of the goods were exclusive. But if mere cohabitation were a badge of fraud, a father’s sale to his unmarried son would seldom be sustained. It certainly was not necessary for the son to turn his father out of doors.” Forsyth v. Matthews, 2 Harris 100, as explained by Mr. Justice Lowrie, before whom the case had been tried below, 2 Casey 74, was a sale by a son to his father, and though the business continued to be conducted in the same place and with the assistance of the son, yet there being evidence of an actual transfer of the possession and control of the property, the sale was sustained. Childs v. Simmons, an unreported case, cited 2 Casey 74; the transfer was by a storekeeper to his clerk, the vendor continued to aid in the store, but the sign was changed, and the sale was upheld. Hugus v. Robinson, 12 Harris 9; the subject was a drugstore. The vendee bought it for his son, who had been a clerk and apprentice of the vendor, and put him in possession. The vendor attended the store very much as before, and the signs were not changed. It was left as a question of fact, to the jury, and the judgment was affirmed. In Dunlap v. Bournonville, 2 Casey 72, two brothers transferred a coachmaker’s establishment to a third, and the vendors remained in the capacity of foremen. It was held that it ought to have been submitted to the jury. Chief Justice Thompson has said that this case stands on the very outer verge of settled principles, but on its facts is still within them: 8 Wright 412. In Billingsley v. White, 9 P. F. Smith 464, two partners sold out a store of goods to the brother of one of them. One of the vendors continued in the store as a hired hand. “ If,” said Mr. Justice Williams, “Billingsley’s acts and declarations as a salesman had been such as to leave it doubtful whether he was acting as owner or agent, then his presence and connection with the goods would have been such evidence of retained possession as to render the sale fraudulent. But if his acts and declarations were professedly and apparently those of a mere agent, and were so understood by the parties with whom he dealt, as all the evidence tends to show, then they constituted no such badge of fraud or evidence of retained possession as would justify the court in declaring the sale fraudulent.”

I frankly confess that I have not regarded this line of decisions with favor. Dunlap v. Bournonville was tried before me in the District Court, and I entered the judgment of nonsuit, which was there reversed. I dissented from the determination in Billingsley v. White, because I was afraid that it went a step further than any of the preceding cases in recognising the right of the vendee to employ the vendor as his agent to conduct the business. Perhaps it does not go that far. But I have been too long on the bench — now nearly twenty-five years — not to have learned this lesson, that a judge has no right to adhere to his own favorite opinions, after they have been reversed or overruled. It is his duty to administer justice according to the law as it is settled— not according to his own notions of what it ought to be. Neminem oportet esse sapientiorem legibus: no man out of his own private reason ought to be wiser than the law, which is the perfection of reason, says Lord Coke: 1 Inst. 97, b.

Judgment reversed, and venire facias de novo awarded.


text:
    Wynkoop versus Seal.
    1. Seal, a broker, bought stock on the order of Wynkoop, paid for it, and informed him of the purchase. The stock was delivered to Seal; he frequently asked Wynkoop to take the stock, and although there might have been times when no stock was in his name, he could at any time have delivered it to Wynkoop, who never requested a delivery. Seal might recover for the money advanced.
    2. Wynkoop was estopped from alleging that Seal could not comply, having never offered payment or demanded delivery of the stock, and Seal being ready to deliver at the time of trial.
    3. It was not error to refuse to charge, that the plaintiff could not recover, because at some intermediate time, Seal had not the stock standing in his name or had temporarily hypothecated it.
    4. Shares of stock are alike, and a transfer procured to be made by another of the stock would have been a compliance.
    5. A judgment will not be reversed for an immaterial error which does the party no harm.
    6. Gilpin v. Howell, 5 Barr 41, remarked on.
    March 2d and 3d 1870.
    Before Read, Agnew, Sharswood and Williams, JJ. Thompson, C. J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 50, to July Term 1869.
    This was an action of assumpsit, commenced January 6th 1869, by Lewis Seal against John E. Wynkoop, to recover the price paid by the plaintiff, who was a broker, for stock bought for the defendant at his request. The declaration averred that the order to the plaintiff was for the purchase of stock in “ The McClintock Oil Company.”
    The case was tried May 4th 1869. D. J. Woods testified for the plaintiff, that about February 1865, at the request of the defendant, he introduced him to the plaintiff, and the defendant instructed the plaintiff to purchase for him 200 shares of McClintock oil stock; he paid the plaintiff $200. The witness was then asked, “Do you know from conversation with Mr. Wynkoop whether he knew that this stock was purchased by the plaintiff as instructed by him?” The defendant objected, on the ground that the witness was asked for his “ impression,” &c. The objection was overruled, and a bill of exceptions sealed. The witness answered : • “ I cannot say that he said anything of that kind in so many words. He did intimate to me that the stock had been bought. I knew he was informed of the purchase. I have no doubt that he did intimate to me that the stock was bought for him. I conversed with the defendant after the purchase of the stock, probably the same day, about the purchase of the stock. I think I received telegrams from defendant to plaintiff in relation to this transaction.”
    The telegrams, as follows, were then given in evidence:—
    “ Pottsville, March 30th 1865.
    To Lewis Seal, Esq., Stock Broker :
    I was down yesterday but left unexpectedly, will be down again and see you on Saturday.
    John E. Wynkoop.”
    “ Pottsville, March 30th 1865.
    To Lewis Seal, Esq., Broker:
    Yours has just been received. Extend my McClintock 30 days. I will see you on Saturday.
    John E. Wynkoop.”
    The plaintiff testified: On the 28th of February 1865, the defendant ordered him to buy 200 shares of McClintock oil stock, and paid $200 at the time; he bought 200 shares, which with expenses, &c., cost $1275.25; he had received dividends to the amount of $95. The defendant was informed of the purchase when made, and had been frequently requested to take the stock and pay for it; there never was a time when the plaintiff could not have delivered the stock; it was always under his control; it was bought for the defendant on 30 days’ credit to the buyer ; it .did not pass at the time of the purchase from the seller.
    The plaintiff produced a certificate, in his own name, dated May 3d 1869, for 200 shares of stock in “ The McClintockville Petroleum Company.” He further testified that he had his stock in larger certificates and got the certificate of 200 shares, on the 3d of May, out of a certificate of 500 shares; he had bought stock in the same company, before and after he bought for defendant ; there might have been times when there was no stock in his name; he may have borrowed money on it; this stock was delivered to him April 10th 1865; he never gave defendant notice that the stock was ready.
    The defendant gave no evidence.
    He requested the court to charge:—
    1. That if the jury believe, from the evidence, that there was no notice given to Mr. Wynkoop of the plaintiff having the stock ready to deliver, the plaintiff cannot recover.
    2. That there have been no damages proved, and therefore the verdict must be for defendant.
    3. That if the jury believes, from the evidence, that the plaintiff did not have 200 shares of the stock of the same company always in his possession ready to deliver to the defendant, but on the contrary, had, during that time, pledged or in any way disposed of all he had of said stock, the verdict must be for defendant.
    4. That the stock alleged to have been ordered by defendant being “ McOlintock Oil Stock,” and the stock proved to have been ordered being “ McClintockville Petroleum Company” stock, there can be no verdict for plaintiff.
    The court refused each of the points.
    The verdict was for the plaintiff for $980.25.
    The defendant took a writ of error. He assigned for error the admission of the evidence objected to, and the refusal of his points.
    6r. M. Dallas, for plaintiff in error.
    — As to the 4th point cited 1 Chitty on Pl. 305; 1 Greenleaf on Ev. § 66, 68; Thomas v. Mann, 4 Casey 520; Robbins v. Otis, 1 Pick. 368; Smith v. Barker, 3 Day 312; Waltman v. Allison, 10 Barr 464; Schoneman v. Fegley, 7 Id. 433; Rowan v. Rowan, 5 Casey 181; Reitzel v. Franklin, 5 W. & S. 33; Musgrove v. Gibbs, 1 Dallas 216; Funk v. Arnold, 3 Yeates 428; As to the 3d point: Gilpin v. Howell, 5 Barr 41. As to the 1st point: Deval v. Burbridge, 4 W. & S. 305; Drexel v. Raimond, 11 Harris 22; Harvey v. Turner, 4 Rawle 223; Brown v. Arrott, 6 W. & S. 402; Clark v. Bank of Wheeling, 5 Harris 322.

      J. JR. Rhoads, for defendant in error.
    — As to the 4th point: The court may decline to answer a point which assumes facts which are matters of evidence: Cullum v. Wagstaff, 12 Wright 300 ; Morrow v. Com., Id. 305 ; Addison on Contracts 611, 612; Stephen on Pleading 8. Accuracy in a coi^orate name is not essential: Marine Bank of Baltimore v. Blays, 4 Har. & Johns. 338; Mayor of Stafford v. Bolton, 1 Bos. & Pul. 4; Angell & Ames on Corp. § 645. As to the 3d point: McCombie v. Davies, 7 East 5; Laussatt v. Lippincott, 6 S. & R. 386; Newbold v. Wright, 4 Rawle 195; Warner v. Martin, 11 Howard 225; Gilpin v. Howell, supra. As to the 2d point: Addison on Contracts 612; Bayley v. Wilkins, 7 C. B. 899; Ballentine v. Robinson, 10 Wright 177; Bement v. Smith, 15 Wendell 493; 2 Parsons on Contracts 483; Sedgwick on Damages 281. As to the evidence; Cavendish v. Troy, 41 Vermont R. cited in Amer. L. Reg. Oct. 1869, p. 639; 1 Greenleaf on Ev. § 440.
    March 10th 1870,
   The opinion of the court was delivered,

by Agnew, J.

— This is the case of an agent who has bought stock for his principal and paid his own money for it, claiming to recover the sum that he has advanced for his principal. Seal testified that he had bought and paid for the stock at the request of Wynkoop, and informed him immediately of the purchase. He repeatedly requested Wynkoop to come and take the stock and pay for it. Seal also testified that there never was a time when he could not have delivered the stock to Wynkoop; it had always been under his control. He stated on cross-examination that there might have been times when there had been no stock in his name on the books of the company, and also that he might have borrowed money on it. He repeated, however, that there had not been an hour since his purchase of the stock, that Wynkoop could not have got it. On the trial, Seal produced a certificate for 200 shares, the number he was requested by Wynkoop to buy. There is no evidence that Wynkoop ever called to take the stock, to make payment, or to request a delivery of it. He seems to have left his agent to carry the stock for him without any effort to relieve him. Under these circumstances the defendant’s counsel asked the court to charge that if the plaintiff had not always in possession the 200 shares of stock ready to deliver to the defendant, but on the contrary, had, during that time, pledged, or in any way disposed of all.he had of the stock, the verdict must be for the defendant. The refusal of the court so to charge, is the principal error complained of. The case we have, then, is an advance of money by one man, at the request and for the benefit of another ; and a notice of the purchase and demand of payment, and to take the stock when the agent was unquestionably able to perform his undertaking. Now clearly, it does not lie in the mouth of the principal to say that his agent could not comply, when he never offered payment or demanded delivery of the stock. The readiness of the plaintiff to comply at the time of the trial was evidenced by production of the requisite number of shares, and his crediting the principal with the dividends. Clearly it was not error, therefore, to refuse to say to the jury that the plaintiff could not recover, because at some intermediate time the agent had not that much stock standing in his own name on the books of the company, or because he might temporarily have hypothecated it. The true test of his ability to deliver the stock would have been a tender of payment, and a request for delivery. Had the request been made, he might have shown his ability to control so much stock, and had the transfer made. Shares of stock are alike, and a transfer procured to be made by another of the requisite number would have been a full compliance.

The case of Gilpin v. Howell, 5 Barr 41, does not resemble this. The judge of the District Court said, that when the stock was purchased and pledged as collateral security to the defendants (the brokers in that case) their character as agent ceased, and they became pawnees, pledgees, or bailees. Throughout the opinion of Justice Bell, the same view is taken that the stock was held in pledge; the defendants being bailees of it. And this court, instead of holding to the rigid rule given to the jury, that the bailees must have been always ready to deliver the same identical shares, held that readiness to deliver the same number of shares would be 'sufficient.

These views in effect dispose of the 2d assignment of error, that the judge refused to charge the jury that the plaintiff could not recover unless he had given notice to defendant of his having the stock ready to deliver to him. Notice that he had bought the stock, and to come and take it and pay for it, was all that was necessary in the first instance. Readiness to deliver, under such a notice, could be tested only, as we have said, by an offer to pay and a demand to deliver.

There was no error in permitting the question to be answered contained in the bill of exception. The question called for the personal knowledge of a fact communicated in conversation with the defendant. It was not in the most proper form, and if the answer had given impressions of the witness only, it might have been complained of. But the answer disclosed facts , clearly indicating knowledge, to wit, a conversation, probably on the same day, about the purchase of the stock; and the reception of a telegram afterwards from the defendant, clearly showing his knowledge of the purchase. A judgment will not be reversed for an immaterial error which does the party no harm.

Judgment affirmed.