author: — Per Curiam:

text:
    July Term, 1882,
    No. 165.
    January 19, 1883.
    Garrett et al. v. Green, Treasurer, &c.
    1. The act of 26th September, 1761, amended by the act of 15th April, 1782, constitutes the Schuylkill Point Meadow Bank Company, a quasi corporation, authorized to levy assessments, and the charges, by virtue of its provisions, are so far of a public character as to prevent the statute from being unconstitutional.
    2. It is not essential to the validity of such assessments that notice of their levy should be given to the owners of the lands.
    3. Where the taxes were duly and regularly laid for seven years after the widow and devisee of a former owner acquired title, she is personally liable for them; and the fact that they were not collected sooner by the managers constitutes no defense to an action against her.
    Before Merctjr, O. J.; Gordon, Paxson, Trtjnkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas No. 3 of Philadelphia County.

    Case by John I. Green, treasurer pro tem., (substituted in place of Samuel Kilpatrick, deceased, treasurer,) to the use of the Schuylkill Point Meadow Bank Company, against John A. Garrett, executor of the last will and testament of George Hoffner, deceased, and Sarah A. Hoffner, sole devisee, to recover assessments for the years 1872, 1873, 1874, 1876, 1877, 1878, and 1879, for keeping up the banks upon meadow property. Pleas — non-
    assumpsit, and a special plea that the acts under which plaintiff claimed to recover were unconstitutional, and denying the right to recover as against Sarah A. Hoffner. The Schuylkill Point Meadow Company was created under the act of 26th September, 1761, which provides that Hugh Roberts and others are nominated, authorized, and appointed to divide the banks which surround and include a certain parcel of meadow land and marsh situated in the township of Passyunk, and allot how many perches of the said bank each owner or possessor of the said tract shall make, repair, maintain, and support in proportion to the number of acres of meadow he holds therein, allotting the part and proportion so to be made, repaired, maintained, and supported as near and convenient as may be to the land of each respective owner thereof.
    The act further provides that said banks shall always be kept at least six inches above all tides ; that the costs and charges thereof shall be paid by all the owners, occupiers, or possessors according to the number of acres that each of them shall hold, possess, and occupy; that the owners shall elect managers and a treasurer; that said managers shall have power to lay ‘ ‘ such assessment and taxes on every acre of land belonging to the said company as they shall judge to be necessary for the benefit and security of the same;” that they are authorized to enter upon and inspect, at least four times in each year, all the banks, &c. ; and if any part shall be in any manner insufficient “on such inspection and determination, the said managers shall give notice to and require the said owners or possessors, or their guardians, (if minors,) and within the county of Philadelphia, forthwith to amend their, and each of their parts or allotments in such manner as they shall direct; ” that if any owners or occupiers so warned shall refuse or neglect to repair, it shall be lawful for the said managers, with workmen, horses, &c., to enter and repair the same in such manner as they shall think fit and reasonable, and adjust and settle the expense thereof, and deliver to the said owners their respective bills; and in case of their refusal or delay of payment, they shall order the treasurer to advance so much out of the public stock as shall be sufficient; that the managei-s shall cause a true list of the names of all the said owners or possessors, with a true account of every acre of meadow in the aforesaid tract which they respectively hold, and shall furnish the treasurer with a true copy thereof, together with the sum per acre of the general assessment; and the treasurer shall cause public notice of the said rate or assessment per acre to be given at least ten days before the day of payment.
    ‘£ Seo. 11. That if any of the said owners, possessors, or occupiers shall neglect or refuse, as aforesaid, to pay the several sums of money, together with the forfeitures arising thereon, which they respectively ought to pay at any time or times hereafter, for the space of twelve months after any of the days or times in which it ought to be paid; or shall have neglected or refused to make, amend, or repair his, her, or their part or share of the bank, so as aforesaid to them allotted, or shall have neglected or refused to re-imburse the treasurer for the time being, the necessary expense thereof, agreeable to the direction of this act; that then and so often it shall and may be lawful to and for the said treasurer, by direction of the said managers, or any three of them, in his own name,- to sue all and every such person or persons so refusing or neglecting, for the respective sum or sums of money which he, she, or they ought to have paid by virtue- hereof, by action of debt, if five pounds or under, before any justice of the peace of the county, or if above five pounds, in any court of record where the same may be cognizable, and give this act and the said assessment, or the said account, as the case may require, in evidence; and the said justice of the peace and the said court are hereby empowered and directed to give judgment and grant execution for the same, with costs of suit accordingly ; to be levied on the tract or piece of marsh, meadow, or cripple belonging, as aforesaid, to such owner or owners so neglecting or refusing, and delivered unto the managers for the time being, who, or any three of them, are hereby empowered and authorized to let out or rent any part of the said meadow belonging to any of the said owners who shall so neglect or refuse, or who shall not be found in the county as aforesaid, from year to year, for so long time as until the rent or rents arising therefrom shall, as nearly as may be computed, pay all such sum or sums of moneys so assessed, or so charged, together with all costs arid forfeitures arising thereon for his or their neglect or refusal to pay the same as aforesaid, and no longer: Provided always, That in letting out the said meadow, the said managers do publicly notify the leasing thereof, and let the same to the*highest bidder at private sale or bargain.”
    The above act was amended by act of April 15, 1782, (2 Smith’s Laws, 44,) which provides :
    Sec. 2. And whereas, It is found by experience that the mode of supporting the said bank by individual allotments is attended with divers inconveniences,

      Be it therefore enacted, * * * That from and after the publication of this act, the several owners of meadow ground within the banks surrounding the said Schuylkill Point Meadows shall be, and they are hereby, released and discharged from making, repairing, maintaining, and supporting the several proper shares, parts, proportions, and quantities of the said bank to them allotted, in pursuance of the said recited act, at their own proper expense and charge, and of and from all penalties. and forfeitures, by the said recited act annexed to the neglect thereof.
    ■ Sec. 3. And he it further enacted hy the authority aforesaid, That immediately after the passage of this act it shall and may be lawful for the present managers of the said company to enter into and upon the said banks ; and if, upon inspection, it shall appear to them that any particular allotments thereof shall stand in immediate need of repair, then it shall be lawful for the said managers, without consulting the owners of the particular allotments which shall so require immediate repair, to enter upon the adjoining grounds with such workmen, horses, carts, implements, and tools as shall be necessary, and to dig and cast earth, or purchase other materials, and cause the said allotments of banks to be repaired so as to put them all in order and repair, as nearly as possible equal, at the several expenses and charge of each of the said owners of the said allotments which shall require such repair, and to levy, recover, collect, and receive from each of them, respectively, the several amounts of the said respective expenses and charges, in the same manner, and under the same penalties and forfeitures, as the taxes for other purposes in the said recited act mentioned are directed to be levied, recovered, collected, and paid.
    Seo. 4. And in order for the better and more certain and expeditious repairing and supporting the said bank in future, and for rendering the burthen and expense thereof more equal upon the said owners :

      Be it enacted, by the authority aforesaid, That from and after the publication of this act, it shall and may be lawful to and for the managers of the said Schuylkill Point Meadows, elected and to be elected in pursuance of the before-recited act, and they are hereby enjoined and required to enter upon and inspect the said banks, drains, and ditches, so often as they shall think necessary, but not less than four times in every year ; and if, upon such inspection, it shall appear to them that any part of the said bank stands in need of repair, whether from gradual decay or a sudden irruption of the water, or otherwise, then, and in such case, it shall and may be lawful for the said managers, without consulting the owners of the particular place where such repairs are wanting, to enter upon the adjoining grounds, with such workmen, horses, carts, implements, and tools as shall be necessary, and there to dig and carry earth, or purchase other materials for the repair and support of the said bank, (in a good, substantial, and sufficient manner, according to the directions in the said recited act contained,) at the joint expense and charge of all the said owners. * * *
    Seo. 6. And be it further enacted by the authority aforesaid, That it shall and may be lawful for the said managers, elected and to be elected as aforesaid, from time to time to lay such assessments and taxes on every acre of land within the said bank as they shall judge necessary for repairing, maintaining, and supporting the same, and for the other purposes herein above mentioned, to be paid, collected, and recovered in the same manner, and under the same penalties and forfeitures, as the taxes for other purposes in the said recited act mentioned are thereby directed to be levied, recovered, collected, and paid. * * * * * *
    Seo. 8. And be it further enacted by the authority aforesaid, That so much of the said recited act as is herein and hereby altered shall be -and is hereby repealed, and made null and void; but all and every other matter and tiling therein contained shall be and remain in full force and virtue, as if this act were never made.
    On the trial before Ludlow, P. J., the following facts appeared:
    George Hoffner, in the year 1853, became the owner of about thirty-two acres of land in the southern part of the city of Philadelphia, including about twelve and three quarter acres within the boundaries of the Schuylkill Point Meadow Company. He became a member of the company and so remained, paying his assessments until his death in May, 1871. By his last will and testament he devised all of his real estate to his wife, Sarah A. Hoffner, forever, and appointed John A. Garrett his executor. At the time suit was brought the devisee still owned the land. No notice of the assessments had ever been given to her or to the executor.
    The Court charged the jury:
    “The facts in this case are virtually admitted. The Schuylkill Point Meadow Bank Company was incorporated in the year 1761, and the 'object of the company was to raise a fund for the purpose of building a bank along the river Schuylkill in the southern part of this city, to keep the river from overflowing the meadows lying between the Schuylkill and Delaware rivers. This fund, according to the provisions of the act, was to be raised by the managers levying asssessments, from time to time, upon land lying within the limits of the company. These assessments were to be paid by the owners or possessors of said land.
    “ It is undoubtedly true that this company have extraordinary powers under their charter, and as this case will eventually turn upon the law, I will reserve those questions for future consideration. I will say to you, gentlemen, that the counsel for defendants lay some stress upon the point that the plaintiff has failed to show that Mrs. Hoffner’s land has been benefited by the work done by the company, for the reason, as is contended, that the footing ditch along Hollander’s creek has not been kept open so as to drain her land. For the purposes of this case I charge you, that if there was a general benefit to the land-owners by the work done by the company, that seems to me to be sufficient under the law; and I do not think the company were bound to keep the footing ditch along Hollander’s creek open for the purposes of drainage. Neither do I think the company were bound to give Mrs. Hoffner notice of the levying of assessments. Now, gentlemen, if you believe that the work was done by the company, as the plaintiff alleges, and about which there is no serious dispute, and that said work was necessary, then your verdict should be for the plaintiff, subject, of course, to the points of law submitted by the counsel for defendants, and which points I reserve for the court in banc.”
    The following points of law were reserved for the court in banc:

      First. Whether the act of Assembly of September 26, 1761, and the supplement thereto, passed April 15, 1782, under which the plaintiff seeks to recover, are not in violation of the bill of rights and unconstitutional.

      Second. Whether the said Garrett, executor, and said Sarah A. Hoffner, sole devisee, of George Hoffner, deceased, it having been shown that they were not members of said company, and have not assented to the laws or acts of said company, are bound by said acts of Assembly.

      Third. Whether there can be a recovery against the defendants in this suit, under the following point, (3rd,) submitted by defendants, to wit: “ That it is not the true intendment of the said acts of Assembly that the managers may suffer the assessments to remain unpaid for an indefinite time, finally to be collected from a new tenant or an innocent purchaser ; that prompt collection of the assessments from the proper parties is enjoined by the spirit of the act, rather than a loose and unwarranted construction for the r enlargement of the powers of the managers.”

      Fourth. Whether the said Sarah A. Hoffner, being the sole devisee of George Hoffner, deceased, is bound by covenants between him and said company, she not being a member of said company.
    April 11, 1882. — yerdictfor plaintiff for $535 50, subject to points reserved.
    The, defendants moved for a-new trial and for judgment non obstante veredicto upon the points reserved. The Court discharged the rule for a new trial, and refused to enter judgment for the defendants non obstante veredicto. By agreement of counsel the verdict was afterwards reduced, to $338, and judgment entered thereon. The defendants then took out a writ of error, assigning as error the charge of the Court and the refusal to enter j udgment for the defendants non obstante veredicto.

      Lewis Qassidy and Qhartes Davis for plaintiffs in error.
    The act of 1782, in not requiring notice to be given, does not repeal the notice required by the act of 1761. Amendments must be reasonable and consistent with the object of the act of incorporation : Shields v. Ohio, 5 Otto, 321; Miller v. R. P., 21 Barb., 513.
    The act of 1782, dispensing with notice, is unconstitutional, because it deprives a citizen of his property without “due process of law.”
    These acts should not be construed as to work injustice to those who were not parties to them.
    Prompt collection of the assessment from the proper parties is required by the spirit of the act: Rutherford v. Maynes, 9 W. N. C., 561.

      Jerome Oarty for defendant in error.
    In Rutherford ». Maynes, supra, an analogous act was held to be constitutional. The decision there was upon the point that the assessments could not be collected by distress from a tenant who went into possession after they were laid, or from any innocent purchaser. The assessments were made only for the years during which Mrs. HofEner was owner, and therefore Rutherford v. Maynes does not apply.
    January 29, 1883.
   — Per Curiam:

The defendant in error is a quasi corporation authorized by statute to levy the taxes in question. The charge is so far of a public character as to prevent the statute from infringing on the Constitution. The land is properly chargeable with the payment of these taxes. Mrs. HofEner is the widow of the former owner of the land and the sole'devisee thereof. The taxes .were duly and regularly laid since she acquired title to the land. She became personally liable for the taxes, and the fact that she has not paid them sooner constitutes no defense against their payment now.

Judgment was correctly entered on the verdict.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    July Term, 1882,
    No. 90.
    January 16, 1883.
    Hale & Kilburn Manufacturing Company’s Appeal.

    1. Plaintiff and defendants entered into a contract, under seal, by which plaintiff assigned to defendants his patent for an improvement in wardrobe bedsteads, and defendants were to manufacture and introduce said bedstead, to term them in their advertisements “ The Everitt Bedstead,” to pay plaintiff a royalty of seven per cent, upon the wholesale price received by them, at the end of each mouth, “ upon all the said patented bedsteads made and sold by them; ” to keep full accounts, and if in default for sixty days, to re-assign the same; any improvements in said bedsteads to be held by the defendants, subject to the terms of the agreement. Defendants "were in default for sixty days, broke their covenant to- account j ustly, advertised them as the “Champion Folding Bed,” and entered into a fraudulent conspiracy to deprive plaintiff of ail benefit of his own invention, and to appropriate it exclusively to themselves, by purchasing a prior patent, upon which the patent of plaintiff did not infringe, and having it re-issued so as to cover plaintiff’s patent, and secretly assigned to themselves. Held: Affirming the decree of the Court below, that the evidences of fraud were so manifest as to fully justify a court of equity in making a decree for a compulsory assignment to the plaintiff of the original patent, with all the improvements made by the defendants, and also of the reissued patent under which the fraud was attempted to be perpetrated.
    2. The royalty due plaintiff is chargeable,on the price of the completed bedstead, whether expensively or plainly finished, and including springs, ornaments, and all that constitutes the complete bedstead when sold.
    3. The defendants cannot be permitted to deduct the cost of the reissued patent from the balance of account due to plaintiff.
    4. One who has a common interest with, and a confidential relation to, another cannot avail himself of an outstanding or hostile title or incumbrance to the prejudice of his fellow, much less can he create one himself.
    5. When he has created such a title, the wrong-doer will be held in equity to be a trustee, ex-maleficio, for the benefit of the interest intended to be defrauded, and equity will compel a conveyance to the cestui que trust, without compensation.
    Before Mercur, C. J., Gordon, Pans on, Sterrett, and Green, JJ.
    Appeal from the decree of the Court of Common Pleas, No. 4, of Philadelphia County,
    Bill in equity filed by Elisha E. Everitt against Henry S. Hale, Artemus Kilburn, J. Warren Hale, Cheney Kilburn, and Warren Hale, who survived H. W. Curtis, with whom they traded as Hale, Kilburn & Company, and The Hale & Kilburn Manufacturing Company.
    The bill was filed on September 24, 1878, and alleged that on March 24,1874, a patent was issued to the plaintiff for an improvement in wardrobe bedsteads ; that on April 16, 1874, the plaintiff entered into a contract in writing with Hale, Kilburn & Co., whereby it was, inter alia, stipulated that his patent should be assigned to them, and that they should pay him $500. It proceeded:
    “ Second. The said parties of the second part agree to pay to said party of the first part, his heirs or assigns, a royalty or patent fee upon all of the said patented bedsteads made and sold by them, at the rate of seven per cent, upon the wholesale prices received by them therefor; and, furthermore, to pay to said party of the first part, his heirs or assigns, one half of the net profits which they may derive from the sale of any rights and licenses in and under said letters-patent; and they agree to account for, in writing, and to pay over such sums as may be due under this clause of agreement, at the end of each and every month, from and after the date hereof; and, furthermore, to keep just and true books of accounts, to be open, at all reasonable times, to the inspection of said party of the first part, his heirs, assigns, or his or their duly authorized agent or agents, and showing the number of said patented bedsteads made and sold by them, and the prices received therefor, and showing also all rights and licenses granted under the patent, and the amount received therefor.

      Third. The said parties of the second part promise and agree to use all reasonable efforts to promote the sale and introduction of the said patented bedsteads.

      % * % * * *
    And if the said parties of the second part, or their said assignees, shall at any time fail to account for and pay over, when due, sums accruing to the said party of the first part, his heirs or assigns, under the terms of the agreement, and shall continue in said default for sixty days after demand for payment, or, if they shall fail to keep the stipulation' made in clause three hereof, then, and in any such case, the party or parties so in default shall forfeit all his or their interest in said letters-patent, and shall re-assign the same, by proper instrument in writing, to the said party of the first part, his heirs or assigns.

      Sixth. It is further understood and agreed that the said patented bedstead shall be. known as the ‘ Everitt bedstead,’ and the said parties of the second part shall so term it in their advertisements, circulars, etc. *

      Seventh. It is further understood and agreed that any improvements in said patented bedsteads which may be made by either of the parties hereto, and any letters-patent of the United States obtained for such improvements, shall be held and enjoyed by said parties of the second part, under and subject to the terms of this agreement; and the said party of the first part, for himself, his legal representatives and assigns, promises and agrees that at the request and expense of the said parties of the second part, or their assigns, he will obtain letters-patent of the United States for any such improvements made by him, and will execute and deliver proper assignments of the title to said letters-patent to said parties of the second part or their assigns.”
    The bill further averred that, on October 3, 1876, the Hale & Kilburn Manufacturing Company succeeded Hale, Kilburn & Company, and became assignees of the patent and contract; that defendants have made and patented improvements on the plaintiff’s patent, and have made and sold bedsteads under the patent and its improvements, for which they have not accounted to the plaintiff — the defendants have refused to account or pay ; that they have refused plaintiff access to their books; that they are more than sixty days in default, and that, to defraud plaintiff, they have bought the patent of one Stark, and, as an excuse to hinder and defraud plaintiff, have caused a suit to be brought in the name of Stark to enjoin their use of plaintiff’s patent.
    The bill prayed for an account, a re-assignment of said patent and improvements and rights thereunder, and for an injunction to restrain defendants from disposing of said patents and improvements, and from manufacturing and selling thereunder.
    The answer, which was filed November 22, 1878, and amended December 10, 1878, admitted the averments of the bill as to the plaintiff’s patent; the contract with Hale, Kilburn & Co. ; the succession of the Hale & Kilburn Manufacturing Company ; submits whether their patents are for improvements to the plaintiff’s patented process ; denies that plaintiff has been refused access to the books, or that defendants have failed to account, and annexes an account to the answer, showing a balance due to the plaintiff ; admits that the defendants are in default in payment to the plaintiff; offers to re-assign the patent; avers that they secured the control of the Stark and Maine patents in good faith and with the plaintiff’s knowledge, and charges that plaintiff’s patent is void for want of novelty and utility. The answer then submits to a decree in favor of the plaintiff except under the sécond prayer of the bill.
    After a hearing on bill and answer, the Court, on December 9, 1878, appointed C. Stuart Patterson, examiner and master, and made an interlocutory decree directing, first, a reference to the master to take an account of all and every the bedsteads and furniture manufactured after April 16,1874; second, an injunction as prayed for ; third, a reference to the master “to take testimony upon the matters contained in the second prayer of the bill,’’etc.
    On May 5, 1879, an amendment to the bill was filed, which averred that there was such a relation between plaintiff and defendants that the latter could not, “ during the existence thereof, acquire title to said Stark’s patent adversely” to plaintiff, and prays that the defendants be decreed to assign to plaintiff Stark’s patents and all rights thereunder.
    The Master found, inter alia, the facts as follows :
    On November_19, 1873, the plaintiff filed in the Patent Office of the United States his petition for letters-patent for an improvement in wardrobe bedsteads. His application was rejected on November 22, 1873, again on December 3, 1873, and again on December 12, 1873, and as grounds of objection, the Patent Office Examiner referred to prior patents supposed to cover the same subject-matter, granted on August 22, 1865, to A. Stark ; on June 15, 1865, to S. 0. Maine; on September 6, 1870, to Davis & Romminger, and on May 28, 1872, to H. Goodrich. The objections of the Examiner were, however, overcome by successive amendments to the specifications of claim, and on March 24, 1874, letters-patent were granted to the plaintiff, numbered 148,940.
    On August 16, 1874, the plaintiff entered into a written contract with the defendants, Hale, Kilburn & Co., as set forth in the bill. The contract was drawn by the solicitors of the defendants. There is nothing to show that plaintiff, as an inducement to the making of the contract, made any representation to the defendants in regard to the existence or nature of prior and subsisting patents for the same or a similar subject-matter. After a search had been made in the Patent Office, the contract was recorded. The defendants had taken the opinion of patent solicitors in Washington, and were advised that plaintiff’s patent did not infringe upon the Maine patent.
    Shortly after the execution of the agreement with the plaintiff, the defendants appear to have begun the manufacture of his beds, and their first sale was made in September, 1874. On October 3, 1876, the Hale & Kilburn Manufacturing Company, also a defendant, was organized, and was thenceforth successor to and substituted for Hale, Kilburn & Co.
    ■ The defendants appear to have made regular monthly payments on account of plaintiff’s royalty until January, 1877, when they demanded and he refused to give receipts in full settlement to date ; and during some portion of the period before 1877, the plaintiff seems to have been in their debt, according to their statement of account. In July, 1877, defendants refused to pay royalties on certain styles of bedsteads, which they distinguished as Nos. 10 and 11, although the bedsteads so numbered were marked as being made under plaintiff’s patent. Defendants afterwards withdrew their objections, and until April, 1878, the royalty seems to have been paid with regularity. Defendants kept a book for plaintiff’s inspection, but did not permit him to have access to the books of original entry. From the account, as furnished by defendants, they omitted the springs, which are an essential part of the bedsteads, and the bedsteads furnished with ebony or mirrors they understated the prices, and made a uniform and unauthorized deduction by way of discount from the wholesale prices actually received by them. The account so stated was the basis of defendants’ payment of royalty. The defendants persistently violated that part of the agreement which provided that the bedstead should be known as the “Everitt Bedstead,” announcing it in their advertisements as the “Champion Folding Bed.” As the sales of the bedstead increased, the defendants seemed to have formed the purpose of compelling his reduction and ultimate relinquishment of the royalty. In July, 1877, the defendant, C. Kilburn, asked the plaintiff to reduce his royalty from seven to three and one half per cent. ; and on his refusal, Mr. Kilburn threatened that the defendants would stop the manufacture, or make only enough to hold the bed and keep others from making it. In the summer of 1877, Mr. Kilburn told Asher B. Stevens, a mechanical inventor, that defendants were paying a heavy royalty, and directed him to get up a new bedstead.
    Prior to December, 1876, the defendants had consulted and retained as counsel Mr. D. Rodney Mason, who testified that he had advised the defendants how they could manufacture the folding bed and avoid any pretense of infringing upon the plaintiff’s patent. In the latter part of December, 1877, Mr. Stevens, having com-, pleted the model of his proposed bedstead, showed it, at . defendants’ request, to Mr. Mason ; and on February 28, 1878, Mr. Mason wrote to defendants, advising them to discontinue the use of the Everitt patent, and expressing his approval of Stevens’ invention, as avoiding any infringement upon Mr. Everitt. In the course of his examination of the subject of folding bedsteads, Mr. Stevens saw a drawing of the Stark bedstead, and showed the. drawing to defendants, who directed him to open communication with Mr. Stark, but, before he had accomplished that, Mr. Stark came to defendants’ office, having seen their advertisement. Mr. Mason testified that the plaintiff’s patent did not infringe upon the Stark patent, as it had been originally granted, but that the Stark patent was susceptible of being re-issued in such shape as would entirely cover the Everitt bedstead.
    On February 23, 1878, defendants bought his patent from Mr. Stark for $1,000, not for the purpose of protecting the Everitt patent against a possible infringement, but for the purpose of so using the Stark patent as to defeat plaintiff’s claim for royalty.
    Mason then drew a petition for re-issue to the defendants of the Stark patent, and a formal assignment of the patent to the company defendant. On February 28,1878,. defendants wrote to Mr. Mason that “Mr. Stevens left for Washington last night, and took with him Stark’s papers and check. You understand, we suppose, that if Stark’s patent can be made to cover Everitt, we do not care to make any alterations in the bed, or adopt any of Mr. Stevens’ plans. The bed is j ust splendid as it is, and we hope you can fix us all right.”
    On March 6, 1878, defendants, not having rócorded the former Stark papers, had Stark to sign a petition for a re-issue, in which the specifications were drawn so as to cover the Everitt patent. This application for a re-issue was granted April 9, 1878. The old assignment from Stark to defendants had been destroyed, and a new: assignment to defendants was drawn and executed by Stark, but was not recorded until December, 1878. On March 4, 1878, defendants wrote to Mr. Mason, suggest^ ing that he should notify them that they infringed on Stark’s patent ;• and afterwards wrote several letters relating to the same subject. On April 10, 1878, Mason wrote to defendants, as attorney for Stark, charging them with infringing the Stark patent in manufacturing the “ Everitt bedstead.” This letter was shown by defendants to plaintiff, and was used by them as a reason for ■ refusing to pay the plaintiff his monthly installment of royalty then due. The plaintiff declined to recognize Stark’s claim, and the defendants made him a small payment on account of his royalty. Other letters passed between defendants and Mr. Mason, which were not shown to plaintiff. On May 22, 1879, a meeting was held at the office of E. C. Mitchell, who had been retained as counsel for plaintiff. There were present: Messrs. Connolly and-Mitchell, as his counsel; the defendants, with Mr. Otterson, who was not aware of the relations between his clients and Stark and Mason, as their counsel; and Mr. Mason, really counsel for the defendants but professing to represent the adverse interest of Stark. At this meeting, Mr. Kilburn denied that defendants owned .the Stark patent, and Mr. Mason offered, on Stark’s behalf, to grant a license under the Stark patent, in consideration of a five per cent, royalty, which would have to be deducted from plaintiff’s seven per cent, royalty.
    On July 8, 1878, Mr. Mason, as counsel for Stark, filed in the Circuit Court of the United States a bill in equity, in which Stark was plaintiff, and the Hale and Kilburn Manufacturing Company was defendant, for an injunction restraining defendants from the further manufacture of bedsteads, for an account, &c.
    The master further finds that defendants are in default, and have continued in default for more than sixty days before the bill was filed; that they have obtained and now hold patents for improvements in wardrobe bedsteads other than those above mentioned, and that the defendants’ negotiations with Stark were concealed from the plaintiff ; that he was not offered an opportunity to participate in the purchase of the Stark patent, and that the defendants secretly purchased that patent in their own right for the purpose of using it as a means to compel the plaintiff either to abandon his patent, or to so modify his contract as to let them manufacture under his patent for a diminished royalty.
    The report concluded:
    “ The relation of confidence between the parties created by the contract for the manufacture and sale by the defendants, under the plaintiff’s patent, the defendants’ covenants to promote the sale and introduction of the bedsteads made under the plaintiff’s patent, and to advertise the bedsteads under the plaintiff’s name, and the defendants’ fraud, beginning in their suppression of the plaintiff’s name in their advertisements, continuing in their false accounts, and fitly concluded by their secret purchase of a prior patent, their re-issue of that patent in such shape as to cover the plaintiff’s patent, and their sham suit for infringement against themselves, all combine to make a case which merits the severest condemnation which a court of equity can impose. The master reports that the defendants be directed to assign to the plaintiff the Stark patent, and all their rights thereunder. The defendants cannot be permitted to deduct the one thousand dollars paid by them to Stark from the balance which is due by them to the plaintiff under the account. Having failed in their speculation in the purchase of the Stark patent at the plaintiff’s expense, they must be content to bear the loss.”
    The master recommended a decree that defendants pay to plaintiff the sum of $6,788 07, with interest from December 10, 1878 ; that defendants assign and deliver to plaintiff all the letters-patent for improvements in folding bedsteads, held by them, and also the re-issued patent granted to Andrew Stark, and that defendants pay the costs.
    The defendants filed exceptions to the master’s report, which the Court dismissed, Thayer, P. J., delivering the following opinion:
    UA careful and thorough examination of the master’s report and of the voluminous testimony taken in this case has convinced us of the correctness of the master’s findings, and that the conclusions of law which he has reached are reasonable, just, and entirely in accordance with well-established principles of equity. No doubt whatever rests upon our minds of the bad faith of the defendants in their dealings with the plaintiff. It is proved by a mass of testimony and a concurrence of circumstances which establishes it beyond the possibility of a doubt. Their own uncontradicted acts, letters, and oral communications convict them of it so plainly that it is incapable of denial. An attentive perusal of the testimony leaves, it a self-evident fact which requires neither argument nor demonstration to establish it. They not only broke their express covenant to account justly with the plaintiff, and to pay him monthly his stipulated percentage of the sales, but the evidence shows that they entered into a fraudulent conspiracy, the successive steps in which brought them to the borders, if not actually within the lines of criminal responsibility. The object of this conspiracy was to deprive the plaintiff of all benefit of his own invention, and to appropriate it exclusively to themselves. The means by which it was to be accomplished was the purchase of the Stark patent, which Mason, their own counsel, testified, was not infringed by the plaintiff’s patent, the fraudulent re-issue of that patent, with such cunning devices, that it should be made “to cover entirely the Everitt bedstead,” and a secret assignment by Stark to themselves of that which they already owned ; to be followed by false and covinous notices to and sham suits against themselves, brought under their own instructions and by their owm counsel. All this was duly carried out, was duly discovered by the plaintiff, and is established in all its details in the evidence. The defendants now complain that the master has reported that they cannot be permitted in equity to avail themselves of this fraud, and to consummate it by being allowed to set up this fraudulent instrument as a defense to the plaintiff’s demands. Nothing can be plainer than that upon the state of facts here exhibited the plaintiff is entitled, by some form of decree, to be protected against a deed obtained in the pursuit of this fraudulent and injurious purpose. Sometimes equity affords this protection by requiring the delivering up and cancellation of the fraudulent instrument; sometimes by a perpetual injunction against the use of it. What substantial difference does it make to the defendants whether the plaintiff is protected by such a decree, or by a decree requiring him to assign the re-issued patent to the plaintiff % The master has proceeded upon the well-established principle that one who has a common interest with and a confidential relation to another cannot avail himself of an outstanding or hostile title or incumbrance to the prejudice of his fellow. Much less can he create one himself. Where he has acted in good faith he will in equity be held to be a trustee of a title obtained for the common benefit, and will be entitled to be re-imbursed a proportionate part of the expense of acquiring it; but where he has obtained it for the purpose of defrauding his partner in the adventure he can neither claim any benefit from it himself, zzor demand indemnity for his outlay. In such cases the wrong-doer is held in equity to be a trustee, ex maleficio, for the interest intended to be defrauded, and equity will compel a conveyance to the cestui que trust without compensation. The maxim, that no man shall take advantage of his own wrong, prevails in equity evezi more strongly than at law, and with regard to actual fraud the principles of equity in their application to remedial justice are far more comprehensive. Equity will never permit a person to hold a benefit which he has derived from the perpetration of an actual fraud. ' Neither will it allow him compensation for it in any form whatever. In equity no man can set up his own iniquity as a defense any more than as a cause of action. Our reports are full of cases of constructive trusts arising ex maleficio, ■ and it is well settled by many decisions that where an advantage has been gained by an actual fraud, the wrongdoer, who is converted into a trustee ex maleficio, is in no condition to demand indemnity for his outlay.
    These principles have often been applied in this State in various forms of procedure in equity and at law. Most frequently in actions of ejectment, as in Sharp v. Brady, 4 Casey, 433, and Seydlar v. Carson, 19 Smith, 81, and the numerous cases there cited by Judge Williams, in which a purchaser acquiring a title by fraud at a sheriff’s sale has been held to be a trustee, ex maleficio, for the person wronged, who might recover against him without a return of the purchase money paid. It is often applied in bills quia timet, of which application O’Neil v. Hamilton, 8 Wright, 18, is an illustration, where a fraudulent grantee was compelled to make a conveyance, although he had paid $1,000 for his title. Such a trust, ex maleficio, arises Avhenever a person holding fiduciary relations to another abuses the confidence reposed in him by taking and claiming for himself property which he ought to have applied to the protection of their common interest. The rule Avas clearly laid down by Sharswood, J., in Duff •». Wilson, 22 Smith, 442, and the other cases cited by the master in his report. It is more strongly applied in equity than at law, for the maxim there is, ‘ ‘ He who has done iniquity shall not have equity.” It is apparent, therefore, that even if the construction upon which the defendants so strenuously insist should be put upon the fifth and seventh articles of the agreement, and it should be conceded that their covenants to assign, in case of failure to comply with their contract, extended only to improvements made by the parties, their case is no better, for they are still, by reason of the actual fraud practiced, within the operation of the equitable principle which makes them trustees, ex maleficio, without any title to compensation. But, in the present case, the defendants created themselves the very title which is alleged to be hostile to the plaintiff’s rights, for without the re-issue of the Stkrk patent, which they obtained, the plaintiff would have been in no danger. The plaintiff is entitled, therefore, to relief and protection against the defendants’ fraudulent re-issue of the Stark patent. He might have it by a perpetual injunction against the assignment or use of that patent, or he may have it upon the principles already adverted to, in the form of a decree for the compulsory assignment of it to the plaintiff. The form of the relief is not very material, for the result is the same in either case. The master has seen fit to recommend the latter alternative. In this, we think, he is fully sustained, both by reason and authority, and by the evidence in the cause, and we see no reason to dissent from his conclusions in that respect.
    We are also of opinion that defendants have no just ground of complaint against the master for the manner in which he has settled and stated the account. The royalty was, by the terms of the agreement, chargeable on the price of the completed bedstead, as a whole, whether expensively or plainly finished, and including springs, ornaments, and all that constituted the complete bedstead when sold. It was not upon any bedstead of a particular pattern, but “upon all the said patented bedsteads made and sold by them.” We see no reason to doubt the correctness of the master’s statement, that he has credited the defendants, in his supplemental report, with all the bedsteads shown not to have been delivered. It clearly appears also, upon a careful comparison of the duplicate charges contained in the defendants’ printed statement of those charges, submitted to the Court, with the supplemental report submitted by the master (Exhibit C), that they have all been corrected in that report. A careful examination of the case, and of the forty-three exceptions filed by the defendants, has brought us to the conclusion that none of the exceptions are sustained. Let a decree, therefore, be drawn up for the plaintiff, in the form reported by the master on page 52 of this report, corrected as to the amount of the defendants’ indebtedness according to the result reached by the master in his supplemental report.
    Exceptions dismissed.”
    The defendants appealed from the decree entered in accordance with the above opinion, and assigned as error the dismissal of the exceptions, the confirmation of the report, and the granting of the said decree.

      J. Edward Aeldey, George Biddle, James Otlerson, and George W. Biddle for appellants.
    Many of the goods marked in the order-book as delivered were afterwards returned, and should not have been taken into account. Royalties should not be allowed on bedsteads which were only marked in the order-book, as the use of the oider-book is not to make charges. It would not be evidence in an action for goods sold and delivered : Rhoads ». Gaul, 4 Rawle, 404.
    The agreement allows the royalty only upon all bedsteads sold. A subsequent exchange or return should avoid the royalty. The master has allowed royalties twice upon the same bedstead. He has included the charges for boxing, &c., which are not subject to royalty. The master erred in adding thirty-three and one third per cent, to the returns from their agents, which it does not appear was collected, because the contract allows royalty only on wholesale prices, which means the sixty-six and two thirds per cent, actually received. The springs, the mirrors, and ebony strips were not parts of the bedstead upon which royalties should be allowed.
    The complainant is not entitled to the Stark patent, because the agreement refers only to the Everitt patent, or improvements thereunder. An improvement has essential reference to a subject-matter to be improved: Page v. Ferry, 1 Fish Pat. Cas., 298.
    A re-issue must be for the same invention: U. S. Revised Stat., sec. 4916; Bump on Patents, 170, 179, 180, 148 ; Seymour v. Osborne, 3 Fish, 555 ; 11 Wall., 516 ; 3 Story, 742 ; 1 Fish Pat. Cas., 509 ; O’Reilly v. Morse, 15 How., 62; Battin ®. Taggert, 17 How., 74; Bischoff v. Wethered, 9 Wall., 812; Betts v. Menzies, 116 E. C. L. R., 1001.
    The doctrine of Keech v. Sandford, 1L. C. in Eq., 48, does not apply where two parties go into a joint venture: Bast’s Appeal, 20 P. F. Sm., 301.
    Complainant had no right to royalties on sales made after filing this bill.

      Wendell P. Bowman and E. Ooppee Mitchell for appellee.
    The answer admits the liability to account.
    The master’s report has the same weight- as the verdict of a jury: Reeside v. Reeside, 6 Phila., 507. The excep- ‘ tions do not refer to the particular items objected to, and are not in accordance with the requirements of equity practice: Mengas, Ap., 7 Harris, 221; Dexter d. Arnold, 2 Sum., 108; White ». Hampton, 10 Iowa, 238 ; Holcomb ®. Holcomb, 3 Stockton, 281; Smalley ». Corliss, 37 Vt., 486; Foster v. Gressetc, 29 Ala., 393; Green v. Weaver, 1 Sira., 404; 2 Smith’s Chancery, 372; Rule 12 Eq. Rules, pi. 69.
    The appellants fixed the wholesale prices at ten per cent, discount and fifteen per cent, on cash sales. The master has made his calculations upon this basis. The royalty can only be rated by taking all the parts that go to make up the bedstead.
    The appellants are estopped from questioning the validity of the patent of the appellee: Hilliard on Contr., Vol. 2, p. 191; 5 E., 449 ; Beed v. Blandford, 2 Y. & Jerv., 284 ; 284; Brinley v. Tibbets, 7 Greenl., 70; Kinsman v. Parkhurst, 18 How., 289 ; Crossley v. Dixon, 10 TI. of L. Cases, 293; Bigelow on Estoppel, 338. They cannot defend on the ground of failure of consideration, until the owner of the prior patent has deprived them of the monopoly: Angier v. Eaton, 11 W. N. C., 146; Marston v. Swett, 82 N. Y., 527 ; or until a decree against appellee’s patent: Patterson’s Ap., 11 W. N. C., 572 ; Duff v. Wilson, 22 P. P. Sm., 442.
    Appellee is entitled to the Stark patent under the terms of the agreement.
    To avoid the necessity of a new suit, the account is always brought down to the time of stating the account: Tatham v. Lowber, 4 Blatch., 86 ; Wilson v. Sandford, 10 How., 99 ; Hartell v. Tilghman, 9 Otto, 547; Blanchard D. Sprague, 1 Clifford, 288.
    The parties were not partners, but merely licensor and licensees.
    January 29, 1883.

      An appeal to the Supreme Court of the United States is pending.

   — Per Curiam:

Notwithstanding the full and able argument of counsel for the appellants, we are unable to discover any error in this decree. The evidences of fraud on the part of the company are so manifest as to fully vindicate the conclusion of the Court and to justify the decree.

Decree affirmed and appeal dismissed at the costs of the appellants.


author: — Pee Cijeiam :

text:
    July Term, 1882,
    No. 194.
    January 5, 1883.
    Hope Thread Co. v. Johnson et al.

    1. The declarations of one who acts in the capacity of both purchasing and delivering agent, while so acting, as to a matter important to the issue, are properly admissible to affect his principal, the shipper of the goods.
    2. In an action by the purchaser of goods against the vendor for alleged failure to deliver the whole amount agreed upon, the plaintiff gave evidence of a purchase of 21,250 pounds through an agent. The defendant then called the agent, who testified that he was only authorized to sell 15,750 pounds, and that part of the order went to third parties. In rebuttal, the plaintiff was permitted to testify that he copied the entries in the order-book of the agent, and that they amounted to 20,750 pounds. Held, that since this evidence tended to affect the. credibility or accuracy of the testimony of the agent, it was properly admitted.
    Before Merour, C. J., Gordon, Paxson, Teunkey, Stereett, and Clark, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia County.

    Foreign attachment- case by Charles B. Gunn and Charles M. Johnson, trading as Gunn, Johnson & Company, against the- Hope Thread Company, defendants, to recover damages for an alleged breach of contract in failing to deliver to complainants 21,250 pounds of yarn.
    On the trial before Fell, J., the plaintiff, Johnson, testified, inter alia, that in the latter part of October, 1879, he had called upon Mr. Henry, a yarn broker, “who professed to act for the Hope Thread Company,” and ordered 21,250 pounds of yarn at the then market .price from 21 to 22£ cents per pound. “The order was accepted by Mr. Henry the day I was there. When I called on him, I ashed him what yarns he had for sale. He said he had some for the Hope Thread Company. He told me so at this time. He told me he could place an order with them. He said he would accept an order for the Hope Thread Company. He said he was authorized to sell the Hope Thread Company’s yarn.”
    About 3,000 pounds of yarn were received under the contract. Robert Henry, for the plaintiff, testified: “I was authorized to make the contract, which I made with Gunn, Johnson & Co.”

      The defendants gave evidence to show that they had no authorized general agent in Philadelphia, and then produced Robert Henry, who testified, inter alia: ‘'G-unn, Johnson & Company wanted at first 30,000 pounds of yarn. I put the order down in my book. I sent the order to the Hope Thread Company, and they did not take the whole order, but agreed to accept half. ... I wrote to other manufacturers about this order. I sent a part of this order to other parties. . . . When I received the letter from the Hope Thread Company, I called on Mr. Johnson, and told him that the Hope Thread Company would accept one half of the order, but no more.”
    Upon cross-examination, he said, inter alia: “I did not have an interview with Charles M. Glunn at Pawtucket, in which I told him that the Hope Thread Company had just shipped some of the cops by steamer.”
    They also gave in evidence a letter from R. Henry & Co. to defendants, dated November 3, 1879, saying, inter alia: “Please place an order for Glunn, Johnson & Company, as follows :........Total, 15,750 pounds,” and the reply of the defendants to R. Henry & Company, dated November 4, 1879, saying, inter alia: “Yours of the 3d inst. is received with order of Gl. J. & Co., which shall have attention.”
    On rebuttal, Charles M. Johnson, one of plaintiffs, was recalled, and asked: ‘ ‘ What quantities of yarn were entered in Henry’s order-book as sold to you?” Objected to. Objection over-ruled. Exception. (First assignment of error.) The witness answered. “I copied the entries in Henry’s order-book into my memorandum-book at the time. They are in my memorandum-book, and are as follows, (reading the items :) Total number of pounds, 20,750.”
    • Glunn, one of the plaintiffs, being called in rebuttal, counsel offered to prove by him, “a conversation with Henry before the receipt of the cops, in which Henry assured him that defendants had just shipped them some of the cops by steamer.”
    The evidence was admitted under exceptions. (Second assignment of error.)
    The witness testified: “I had a conversation with Mr. Henry. I met him at Pawtucket. I was on my way to Providence. Henry told me he was going to see the Hope Thread Company. He told me there was some yarn for us on the steamer then leaving for Philadelphia.”
    April 17, 1882. — Verdict for the plaintiffs for $2,300, upon which j udgment was afterward entered.

      The defendants then took out this writ of error, assigning errors as’above..

      J. M. Moyer for plaintiff in error.
    The question which was allowed to be put to the witness, Johnson, assumed that because R. Henry & Co., who, as merchandise brokers, accepted from the plaintiffs a large order, they thereby necessarily bound the defendants for the entire amount, and ignored the fact that R. Henry & Co. at the same time acted for other producers, and had placed a part of the same order with them. The agents’ full power to contract must be first shown before such a question can be properly put: Moore’s Exec’rs v. Patterson, 28 Pa., 505; Hays v. Lynn, 7 Watts, 525.
    The declarations of a purchasing agent made after the completion of the purchase are not admissible in evidence against the principal in an action by the vendor: Butter-field «. Blanchard, 2 Code R., 31.

      John G. Johnson for the defendants in error.
    No exception of any sort or kind to the proof of R. Henry & Co.’s agency, or to the Court’s instructions concerning it, was taken, and the fact of its existence was found by the jury. The question put to Johnson, one of the plaintiffs below, and for the allowance of which it is argued the Court below erred, was in contradiction of Henry, who had sworn that he had only agreed with him to sell him a smaller quantity, while Johnson could prove by his answer that he had actually entered in his books at the time a larger quantity as sold. We concede that the declarations of a purchasing agent, made after the completion of the contract, are not admissible in evidence against the principal in an action by the vendor. Henry, however, -was not only the selling, but also the delivering agent; and his declamtions bearing upon a matter important to the issue were properly admissible.
    Januaey 15, 1883.
   — Pee Cijeiam :

The evidence covered by both specifications of error was in rebuttal. In the first it tended to affect the credibility or accuracy of the testimony of the witness Henry. As he acted in the capacity of both purchasing and delivering agent, his declarations, while so acting, as to shipping tlie goods were properly admitted to affect his principal. W e discover no error in the record.

Judgment affirmed. .


author: — Per Curiam :

text:
    July Term, 1882,
    Nos. 140, 141.
    January 17, 1883.
    James, administrator, et al. v. Milne. Same v. Same.
    1. The principles decided in an appeal from the distribution of a decedent’s estate by the Orphans’ Court, apply with equal force to attachment executions issued from the Court of Common JPleas by the appellants against the distributee’s interest in the said distribution.
    2. The Orphans’ Court lias power to revise and correct its former adjudications, if in those adjudications it discover a palpable mistake, produced either by its own inadvertence or by the blunder of the parties.
    3. The indebtedness of a distributee to the decedent, incurred more than six years before the death of the latter, cannot be set oif against the distributee’s share of the estate.
    4. The statute of limitations begins to run, on a due bill payable on demand, from its date, and no demand is necessary before suit brought.
    5. The running of the statute of limitations is not suspended by the probate of the claim in proceedings in bankruptcy against the debtor.
    6. The act of Congress of 23d June, 1874, under which the creditor could be restored to his former situation in case a discharge was refused or the proceedings in bankruptcy were determined without a discharge, does not apply where a claim has been proved and there has been neither a discharge nor any other determination of the proceedings.
    Before Mercur, C. J., Gordon, Paxson, Trunkey, Sterrexx, and Green, JJ.
    Error to tbe Court of Common Pleas, No. 2, of Philadelphia Qounty.

    Case by Francis F. Milne against William A. James, administrator of the estate of Archimedes J. Bucknor, deceased, and garnishee of A. J. Bucknor, junior, who was sued with David C. McCammon and W. Henry Nassau, late trading as Bucknor, McCammon & Co. Plea, nulla bona.

    In the court below, F. F. Milne brought two actions against A. J. Bucknor, junior, and others composing the firm of Bucknor, McCammon & Co., in which he recovered judgments, one on April 22, 1876, revived March 19, 1878, for $5,635 20, and the other on May 11,1872, revived March 19, 1878, for $5,921 55.

      On January 24, 1878, attachments sur judgments were issued in both cases against W. A. James, administrator of the estate of A. J. Bucknor, deceased, garnishee, who was the father of A. J. Bucknor, junior, and who died December 13, 1877, intestate, leaving a widow and six children, including the said A. J. Bucknor, junior, who died in November, 1878. The administrator hied two accounts, one on September 30, 1878, and one on February 28,1879. The adjudications under these accounts did not pass upon any questions of set-off or deductions, but simply ordered that the share of A. J. Bucknor, junior, should be retained by the accountant until the final determination of the above attachments. Subsequently, upon petition, the Court opened the adjudications and recommitted the accounts to the auditing judge, Hanna, P. J., before whom it was shown, by the production of the record and proceedings in bankruptcy against Bucknor, McCammon & Co., that A. J. Bucknor, junior, was, at the date of the death of his father, indebted to his father in the sum of $13,203 39, upon a due bill for $10,000, dated January 1, 1867, payable on demand ; in the sum of $3,395 46 upon a note of Bucknor, McCammon & Co., due October 5, 1870, and in the sum of $9,807 93 upon an account for money loaned, due September 12, 1870; that a dividend of $382 58 had been paid thereon, and that no discharge had yet been granted. The auditing judge was of opinion “ that while in a suit upon said due bill by the accountant against A. J. Bucknor, junior, or his legal representatives, the plea of the statute of limitations must be sustained in the absence of evidence of a promise to pay, etc., yet it is not applicable to a suit by a legatee or a distributee to recover a legacy or distributive share, for in such event it is well settled that the executor or administrator may retain the legacy or share in part or full satisfaction of the debt,” and accordingly held that A. J. Bucknor, junior, was indebted to his father’s estate in the sum of $39,579 65; that his distributive share in said estate amounted to $14,-767 78, and that as neither he nor his estate would be entitled to share in the fund for distribution, his distributive share, being in part payment of his indebtedness to the estate, should be divided among the widow and children of A. J. Bucknor, senior. Under the second account the distributive share of $2,361 92 was divided and awarded to the widow and children in the same manner.
    To these adjudications Milne filed exceptions, which were dismissed.
    He then appealed to the Supreme Court, and on February 20, 1882, tlie decree of the Orphans’ Court was reversed, G-okdow, J., delivering the following opinion .
    “The appellant, Francis F. Milne, is a creditor of A. J. Bucknor, junior, and on the 21st of January, 1878, levied two writs of attachment on the distributive shares of the debtor in the hands of William A. James, administrator of the estate of A. J. Bucknor, senior, and it is thus that Milne becomes interested in the distribution of this estate and in the decree made by the Court below. On settlements of the accounts of the administrator, the last one audited January 21, 1879, the distributive shares of the younger Bucknor were found to be $17,129 72 and so adjudged. At the time of the deathof A. J. Bucknor, senior, which occurred December 13, 1877, he held two several claims against his son: one a due bill, payable on demand, for $10,000, dated January 1, 1867; the other a claim against the firm of Bucknor, McCammon & Co. made up of a note for $3,395 46, due October 5, 1870, and an account for money loaned in the sum of $9,807 93, due September 12 of the same year. This firm went into bankruptcy October 14, 1870, from which, as yet, there has been no discharge, and the claim above stated was, among others, duly proved. On the settlements in the Orphans’ Court, through some inadvertence or mistake, the effect of these claims, as off-sets to the distributive shares of the younger Bucknor, was not passed upon, and on a petition of the administrator, dated June 21, 1879, setting forth this mistake which is not denied, the Court opened its former decree and proceeded to a re-adjudication. To both the above-mentioned claims against A. J. Bucknor, junior, the appellant interposed the plea of the Statute of Limitations, which was over-ruled by the Orphans’ Court, and the set-off as claimed by the administrator was allowed. We have, therefore, two principal questions presented for our consideration : the power of the Orphans’ Court to open and correct its decree, and the effect of the Statute of Limitations upon the claims of the estate against A. J. Bucknor, junior.
    As to the first question, we answer it by saying that we have no doubt about the power of the Orphans’ Court to revise and correct its former adjudications, if in those adjudications it discovered a palpable mistake, produced either by its own inadvertence or by the blunder of the parties. A sense of fair dealing and justice would be authority enough, in the absence of any other, for so ' holding; nevertheless, other authority will be found, and that directly in point, in Greorge’s Appeal, 2 Jones, 260, where the subject is so fully discussed that further argument from us'is unnecessary.
    This out of the way, next in order comes the question involving the Statute of Limitations. If this statute is operative under the circumstances of this case, then both the claims above referred to are barred thereby, and the appellant is entitled to a reversal of the decree of the Court- below. But-, as we have seen, if it is not operative, it is not for the want of time, for the due bill as well as the claims against Bucknor, McCammon & Co. were more than six years old at the time of the death of the elder Bucknor.
    But it is urged that the statute does not apply to a distribution in the Orphans’ Court where there is an exercise of the right to retain from a distributee’s share his indebtedness to the estate. To support a doctrine such as this, nothing has been produced from our own books, but the dictum of Mr. Justice Read in Thompson Ap., 6 Wright, 346, and that is based solely on English authorities. On the other hand, the contrary was held in the recent case of Reed v. Marshall, 9 Norris, 345, where, on a suit for a legacy, an attempt was made to set-off a claim of the estate against the legatee which had been barred by the statute prior to the death of the deceased.
    Nor is the attempted distinction between equitable and common law proceedings, as respects the Statute of Limitations, well founded. As was said in Hoch’s Ap., 9 Harris, 280, a case where the Orphans’ Court, on objection of a legatee, refused to allow an executor to retain a debt due'himself which was barred by the statute in the life of the testator, a court of equity will not pass upon a claim bad at law. Neither has the argument for a contrary doctrine a sound premise. It is urged that the statute 'does not pay the debt; that it only operates on the remedy. It- is true that the statute operates only upon the remedy, or action for the collection of the debt; but it thus operates because of the presumption that the claim has been paid or otherwise extinguished, if its collection has not been insisted on within six years, and that, therefore, it would be inequitable after that time, to compel its payment: Hanger ». Abbott, 6 Wallace, 538.
    Again the Court below thought that as the ten-thousand-dollar claim was a due bill, payable on demand, the statute did not commence to run from its date, but only after demand made. This was a mistake. Taylor v. Wit-man, 3 Grant, 138, holds that the statute begins to run, on a note payable on demand, from its date, and that no demand is necessary before suit brought. The cases of the Girard Bank v. the Penn Township Bank, 3 Wright, 92, and Finkbone’s Appeal, 5 Norris, 368, are notin point. Those were suits for the recovery of deposits, and the contracts were in the nature of bailments for safe-keeping ; moreover, in the case last named, it was expressly said that the obligation sued upon was not in the nature of a due bill, but that it had rather the character of a deposit.
    As to the claim against Bucknor, McCammon & Co., we cannot agree with the Court below that the running of the statute was suspended by the operation of the United States bankrupt act. The probate of the claim under that act is like the prosecution of any other suit; if it is successful, all is well, and the account is secured ; but if not, if the creditor is in the end obliged to resort to a new process in the State Courts for the recovery of his debt, we cannot see upon what principle, in order to avoid the running of the Statute of Limitations, he can count out the time consumed by 1ns first abortive attempt. He is not compelled to prove his claim; but if he does, it is a voluntary surrender of it, and in this it is altogether unlike those cases where a condition of war, as in Hanger v. Abbott, supra, or public policy, as in Hutchinson «. the Bank, 5 Wright, 42, leaves the creditor without remedy. But under such circumstances, his will is not consulted ; the courts are closed against him. Hence, of necessity, the running of the statute is suspended until the public emergency has passed, and he is again clothed with power of asserting his rights. In the case now being considered, Bucknor had two methods of redress presented for his consideration and acceptance. He might prove his claim in the bankrupt court, or he might sue in the State court. If he adopted the first method, he voluntarily abandoned all other remedies, and made an absolute surrender of his claim ; and it is only by virtue of the act of Congress of June 23, 1874, that he could be restored to his former condition, in case a discharge was refused to the bankrupt, or the proceedings were determined without a discharge.
    Now Bucknor’s claim against the firm of which his son was a member was proved some seven years before his death, and had there been no unwonted delay, a discharge would have been had long before the date of his decease. But, in that event, the indebtedness now sought to be used as an ofii-set would have been fully canceled, and the use of it, as now intended, against the after-acquired estate of the younger Bucknor, would have been out of the question. But, as yet, there has been no discharge, neither have the proceedings in bankruptcy been determined without a discharge ; hence, the act of 1874 does not apply to the claim in controversy, and it may be that it never will so apply.
    How, then, can this surrendered claim be interposed as a set-off, or must the distribution await indefinitely for the happening of a contingency, now rendered exceedingly remote by the death of both the principal parties? We think it will not subserve the purposes of either law or equity thus to suspend the running of the statute on the mere expectation of an event that may never come to pass. If, however, the second method were adopted, the bar of the statute would be effectually prevented, and the creditor might prosecute his claim to judgment, subject only to such delays as might result from the interposition of the court having jurisdiction of the proceedings in bankruptcy.
    We conclude, then, that the delay in this case having arisen from no legal or political necessity, but from the voluntary act of the creditor, the bar of the statute is effective to defeat the appellee’s claim.
    The decree of the Court below is now reversed and set aside, and the former adjudications restored and affirmed at the cost of the appellee.”
    On October 18, 1880, these attachment suits w'ere tried, and the garnishee’s attorney requested the Court to charge as follows:

      First. That the claims of the estate of A. J. Bucknor, senior, against A. J. Bucknor, junior, individually, and as a member of the firm of Bucknor, McCammon & Co., are not barred by the Statute of Limitations ; that the running of the statute was tolled by the proceedings in bankruptcy, and that the administrator of A. J. Buck-nor, senior, may set off these claims against the distributive share of A. J. Bucknor, junior, in the estate of A. J. Bucknor, senior.

      Second. That this Court has not jurisdiction of this suit, exclusive jurisdiction being vested in the Orphans’ Court.

      Third. That the proceedings in bankruptcy have barred this action by the plaintiff, and he cannot recover.
    It was thereupon agreed, by the counsel of both parties, that if the Court in banc should be in favor of the garnishee on the above points, or any of them, then judgment is to be entered in Ms favor, otherwise for the plaintiff on the verdict.
    October 18, 1880. Yerdicts for plaintiffs $6,839 40 and $6,558 33, and the jury find sufficient in the hands of garnishee belonging to defendant to pay the judgments. On June 10, 1882, judgment'was entered for the plaintiff upon the verdict.
    The defendants then took out a writ of error, assigning as error the refusal to affirm the above points and the entry of judgment for plaintiff upon the verdicts.

      8. O. T7iompson for plaintiff in error.
    The Statute of Limitations does not apply, because the debt is not destroyed, but the right of action merely is lost, and the right of the creditor to retain the debts follows : Thompson’s Appeal, 6 Wr., 345. In Milne’s Appeal, this is treated as a dictum, but the dictum in Read ®. Marshall is adopted : Wesner ®. Stein, 38 Leg. Int., 459. Proceedings in bankruptcy are in the nature of a suit, and have the effect of a promise to pay all creditors: Blumenstiel on Bankr., 240; Ramsay®. Warner, 97 Mass., 8; Pond ®. Williams, 1 Gray, 630 ; Wharton on Contr., 933.
    The bankruptcy proceedings operate to suspend the Statute of Limitations: Dingee ®. Becker, 9 Phila., 196. The creditor proving his claim cannot sue until a discharge is refused or wrhen proceedings are determined. Therefore, the statute does not begin to run until after the right to sue arises: Heath ®. Page, 12 Wr., 142.
    The exclusive jurisdiction is vested in the Orphans’ Court: Bank ®. Ralston, 7 Barr, 485 ; Springer’s Appeal, 5 Casey, 208 ; Hughes’ Appeal, 7 P. P. Sm., 181; Ashford ®. Ewing, 1 Casey, 213; Ins. Co. ®. Wilson, 7 P. P. Sm., 182 ; Springer’s Appeal, 5 Casey, 208.

      M H. Hanson for defendant in error.
    The questions raised here are res adjudícala, having been decided by this Court on the appeal from the decree of the Orphans’ Court: Milne’s Appeal, 11 W. N. C, 330. The Supreme Court will not reverse their own decision in the same case and upon the same facts: Dushane ®. Bank, 39 L. I., 280. A former judgment between the same parties is conclusive: Rockwell». Langley, 19 Penna., 502; Philadelphia ®. Girard’s heirs, 45 Penna., 9, and cannot be collaterally questioned: Bower ®. Tail-man, 5 W. & S., 556; Peterson ®. Lothrop, 34 Penna., 223.

      January 29, 1883.
   — Per Curiam :

These two cases present the same question. They were argued together. We think the principle decided in Milne’s Appeal, 11 W. N., 330, rules the cases against the plaintiff in error. While that case was in the Orphans’ Court, yet the reason on which it rests applies with equal force to the present cases. Judgment was, therefore, correctly entered in favor of the defendant in error in each case on the reserved question.

Judgment in each case affirmed.


text:
    July Term, 1882,
    No. 117.
    January 6, 1883.
    Massey et al. v. Clarke.
    1. The depositions are no part of the record on a writ of error for discharging a rule to strike off a judgment and to set aside the fieri facias issued thereon, and they are not legally before the Court in error for consideration.
    2. The record showing a judgment valid and regular on its face, a refusal to strike it off was, therefore, clearly right.
    Before Merour, C. J.; G-ordon, Paxson, Trunkey, Sterrett, and Clark, JJ.
    Error to Court of Common Pleas, No. 2, of Philadelphia County.

    Rule to show cause whyji./a. should not be set aside, and the judgment against Mary H. Massey stricken off.
    Judgment was entered March 14, 1882, in favor of F. T. Clarke, assignee of Jerome Tan turn, against C. T. Massey and Mary H. Massey, for $512 73, upon a single bill, under seal, dated January 21, 1882, for $488 31, payable ninety days after December 13, 1881, with five per cent., attorney’s collection fees, &c., and containing a warrant of attorney to confess judgment.
    The Court below, after hearing depositions taken under this rule, May 31,1882, discharged the rule, and made the following order:
    “The lien of this judgment against Mary H. Massey, and the fi. fa. issued'thereon, is limited and restricted to the goods and fixtures of drug store, 936 Market street, which, she alleges, she purchased from Jerome Tantum, on December 13, 1881, and for which, the judgment-note upon which the above judgment was entered was given in part payment.”
    Counsel for Mary H. Massey then took out a writ of error, and assigned as error the action of the Court in discharging the rule to set aside the ji. fa. and to strike off the judgment against Mary- H. Massey, and, in making the above order, restricting the lien of the judgment, &c.

      Samuel P. Hansom for plaintiff in error.

      B. Daniels and D. W. Sellers, for defendant in error.
    The act of 4 April, 1877, (Purd. Dig., 2115,) provides only for an appeal from a refusal to open a judgment. If this Court can take cognizance of an appeal to strilce off & judgment, it must be brought up by certiorari and not by writ of error.
    January 29, 1883.
   — Per Curiam :

The main complaint is the refusal to strike off this judgment. If there be no error in this, there is none in refusing to set aside the fi. fa., nor in permitting the property named to be seized in execution. This is not an appeal from a refusal to open the judgment, but a writ of error for not granting the relief stated. The depositions taken are not legally before us, and cannot be considered. They are no part of the record to be reviewed on this writ. The record shows a judgment valid and regular on its face. The refusal to strike off was, therefore, clearly right.

Judgment affirmed.


text:
    January Term, 1883,
    No. 58.
    January 26, 1883.
    Pennypacker vs. Camden and Atlantic Railroad Company.
    1. In order to entitle plaintiff to judgment for want of an affidavit of defense upon a guarantee of the defendant indorsed upon the bonds of another railroad company, the fact creating the power to make the guarantee should he averred.
    2. A statement of claim filed without such averment is not sufficient to establish the legal liability of the defendant.

      Before Mercur, O. J., Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, J. J.
    Error to the Court of Common Pleas, No. 2, of Philadelphia County.

    Covenant by Anna M. W. Pennypacker against The Camden and Atlantic Railroad Company upon ten coupon bonds of the May’s Landing and Egg Harbor City Railroad Company, guaranteed by the Camden and Atlantic Railroad Company.
    The plaintiff tiled a claim for overdue coupons and interest as follows:
    Bond.
    $500. United States of America, $500.
    State of New Jersey.
    May’s Landing and Egg Harbor (No. 46) City Railroad Company.
    The May’s Landing and Egg Harbor City Railroad-Company acknowledge themselves indebted to Robert Frazer in the sum of five hundred dollars, which sum they promise to pay to the said Robert Frazer, or bearer, the first day of October, A. I). 1900, with interest, at the rate of seven per cent, per annum, payable half yearly, on the first days of April and October, each year, on the presentation and delivery of the proper coupon hereunto annexed, at the office of the Camden and Atlantic Railroad Company, in Camden.
    The holder of this bond is secured by a first mortgage, dated October 1.1871. on all of the estate of the company, executed and delivered to John H. Doughty and Israel S. Adams, in trust, to secure the full and final payment of such bonds as shall be issued by the said company, not exceeding in the whole $37,500, according to the terms of said mortgage deed.
    In witness whereof, the said company have caused this bond tobe attested in their behalf by their president and secretary, and their common seal to be hereunto affixed at their office, in the village of May’s Landing, this first day of October, in the year of our Lord one thousand eight hundred and seventy-one.
    J. E. P. Abbott, President.

    C. R. Colwell,

      Secretary.

    5 Seal. } ¿ M. L. & E. H. C. R. R. Co. (

      The within bond, No. 46, is one of those bonds issued by the May’s Landing and Egg Harbor City Railroad Company, to the amount of $37,500, and the mortgage therein created has been duly executed, recorded, and delivered.
    John H. Doughty, Israel S. Adams, Trustees.

      Annexed Coupon.

    No. 19. $17 50.
    Warrant for seventeen ^¡- dollars. Being half yearly interest on Bond No. 46 of the May’s Landing and. Egg Harbor City Rail Road Company, payable April 1, 1881. C. R. Colwell, J. E. P. Abbott,

      Secretary. President.

      Indorsement on Bond:

    Payment of the principal and interest of the within Bond" is guaranteed by the Camden & Atlantic Rail Road Company.
    Robert Frazer,

      President Camden and Atlantic Railroad Company. Attest: H. Wi-iiteman,

      Secretary.

    5 Seal. \ J O. & A. B. ft. Oo. $
    [Note.- — Copies of bonds Nos. 47, 48, 49, 50, 51, 52, 54. 55, and 56 were also filed, and are identical in form with No. 46; also, copies of coupon No. 20, accompanying each bond, which is' identical in form with coupon No. 19, except that the date of payment is October 1, 1881.] The plaintiff avers that all the coupons, copies of which are herewith filed, were presented at the office of the Camden and Atlantic Railroad Company in Camden on the 16th day of March, A. D. 1882, by H. 0. Penny-packer, agent for the plaintiff, who was at that time the owner of the said coupons, and that payment of the same was refused.
    The defendant filed an affidavit of defense by C. D. Freeman, setting forth “that he is the president of the Camden and Atlantic Railroad Company, the defendant above named, and he suggests that upon the copy filed in the above-entitled case, the plaintiff is not entitled to judgment for want of an affidavit of defense.”
    Whereupon plaintiff took a rule for judgment for want of a sufficient affidavit of defense, which the Court'below subsequently discharged.
    Plaintiff then took out a writ of error, assigning as error the discharge of the rule and the refusal to enter judgment for the plaintiff.

      S. W. Pennypacker for plaintiff in error.
    The copies filed show an original and primary obligation upon the part of the defendant. The language of the bond show's a promise on the part of the May’s Landing Company that defendant will pay the coupons on presentation. The indorsement shows a ratification by defendant of the promise of the other company. The whole is one original and entire transaction: Snevily v. Johnston, 1 W. & S., 309 ; Amsbaugh v. Gearhart, 1 Jones, 482; Ashton r>. Bayard, 21 P. F. Sm., 139; Allen v. Eighmie, 14 Hun., 559; Leonard, v. Vredenburgh, 8 Johns., 29.
    The contract is one of suretyship, and defendant is liable in the first instance: Campbell v. Baker, 10 Wr., 243; Roberts v. Riddle, 29 P. F. Sm., 468; Street v. Silver, Brightly’s Rep., 96 ; Reigart v. White, 2 P. F. Sm., 438; Brown v. Curtis, 2 N. Y., 225; Bank v. Livingston, 2 Johns. C., 409; Burnham v. Gall entine, 11 Ind., 295 ; Stout ». Stevenson, 1 Southard, 181; Sibley v. Stull, 3 Green, 333.
    The averments accompanying the copy filed are within the rule: Imhoff v. Brown, 6 Casey, 506; Bank v. Thayer, 2 W. & S., 443.

      Pickard C. Dale and Samuel Dickson for defendant in error.
    Snevily v. Johnston, 1 W. & S., 307, was the indorsement of a guarantee upon a negotiable note, a case where the guarantee was surplusage and simply expressed the contract which the law imposed upon the indorser. To the same effect is Amsbaugh v. Gearhart. Ashton v. Bayard rests upon the phraseology used.
    The indorsement is a mere guarantee: Seiple’s Ap., 11 W.'N. C., 392.
    A corporation cannot make a valid guarantee of the bonds of another corporation without express statutory authority, which must be affirmatively established. The Court cannot take judicial notice of the existence of a private statute giving such authority : Timlow v. Phila. & Reading R. R. Co., 11 W. N. C., 218.
    This doctrine would apply with greater force to the statutes of a foreign state.

      Pennypaclcer in reply:
    • Snevily v. Johnson and Amsbaugh v. Gearhart were decided upon the ground that the guarantee was made at the date of the note, and that the whole constituted one transaction: Woods u. Sherman, 21 P. F. Sm., 104. In Seiple’s Appeal, supra, the guarantee was no part of the original contract. In Timlow ®. R. R. Co., the want of authority was set up in the affidavit.
    The Court -will presume from the execution of the contract the power to make it: Broom’s Leg. Max., 948 ; St. Mary Magdalen •». Atty. Gen’l, 6 H. of L. Cases, 189; Robins ». Bellas, 4 Watts, 256.
    February 5, 1883.
   — Per Curiam :

The statement of plaintiff’s claim filed is not sufficient to establish the legal liability of the defendant. It does not aver any fact giving this corporation power to guarantee the payment of a bond of another corporation. Such an act is not within its implied powers ; when the power is claimed to exist, the fact creating it should be averred. The Court committed no error in refusing to enter judgment for the plaintiff. Therefore, writ of error dismissed at the costs of the plaintiff, but without prejudice to his right to trial by jury and second writ of error after final judgment.


text:
    July Term, 1882,
    No. 224.
    January 17, 1883.
    McLean v. McCaffrey et al

    Where a landlord made a lawful and regular distress upon the goods of his tenant, for rent in arrear, and on the fifth day afterwards the appraisement was made and the goods advertised for sale; Held, that the landlord and his bailiff did not become trespassers, ah initio, by reason of the premature appraisement, although a subsequent sale would have been illegal, and they would thereby have become ■ trespassers.

      Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to Court of Common Pleas, No. 1, of Philadelphia County. '

      Replevin for goods distrained for rent in arrear, by John N. McLean against John McCaffrey, landlord, and Charles Bregler, bailiff.
    Upon the trial in the court below, the following facts appeared:
    That the rent being due, the defendant distrained upon certain goods of the plaintiff on January 5, 1881; that the appraisement was made on January 10, 1881, and that the goods were advertised to be sold on January 16,1881. On January 14, 1881, this writ of replevin was issued and the goods delivered thereunder to the plaintiff.
    The plaintiff presented the following point of charge :
    The learned Court is requested, by the plaintiff, to charge the jury that if they find that tile levy or distraint was made on January 5, and the appraisement was made on January 10, that then the proceedings were irregular, and that the defendants became trespassers, ab initio, and their verdict should be for the plaintiff.
    The Court refused so to charge, and reserved the point for the court in banc.
    January 22, 1882. — Verdict for defendant: Pent in arrear, $265 60; value of goods, $245.
    July 1, 1882. — Judgment for defendant on point reserved.
    Plaintiff then took out a writ of error, and assigned as error the refusal of the Court to charge the jury as requested, and the entry of judgment for defendants on the point of law reserved.

      Arthur C. Selden for plaintiff in error.
    An appraisement cannot be made until after the expiration of the fifth day from the day of distress. If made on the fifth day, a sale under it renders the landlord a trespasser, ab initio: Brisben v. Wilson, 60 Penn’a, 452. The trespass was complete on the day after the appraisement, and no sale is necessary to complete it.
    . F-ranTc M. Riter and J. Levering Jones for defendants in error.
    The distress was a valid one. The irregularity of the appraisement did not make the distress inoperative: Act 21 Mch., 1772, Purd. Dig., p. 878, sec. 10. The landlord has no right to sell until he complies with certain preliminaries : Woglam v. Cowperthwaite, 2 Dali., 68. A sale after an irregular appraisement would have been void, but no trespass is committed until he actually sells: McKinney ■». Reader, 6 Watts, 40.
    The cases of Kerr v. Sharp, 14 S. & R., 399 ; Brisben v. Wilson, 10 P. F. Sm., 452, and Richards v. McGrath, 40 Leg. Int., 6, merely decide that an irregular salé under a distress makes a landlord a trespasser, ab initio.

    In making the appraisement within five days no act of trespass was committed. By a distraint, the tenant loses his control over the goods, which, constructively and actually, pass to the landlord, who can remove them or put a person in charge of them. Therefore, he commits no trespass by appraising them : Bannister v. Hyde, 2 Ellis
    & Ellis, 627; Cox v. Painter, 7 C. & P., 767; Woods v. Durr ant, 16 ; M. & W., 158 ; Eagleton v. Gutteridge, 11M. & W., 465 ; Hutchins v. Chambers, 1 Burr, 589.
    January 29, 1883.
   — Per Curiam :

The appraisement made on the fifth day from the day of the distress was premature. A subsequent sale of the property would have been illegal, and the defendants would thereby have become trespassers. No trespass was committed at the time the distress was made. The rent was then due and unpaid. The property was distrained in a lawful and regular manner. Without any sale being made, and merely by reason of the premature appraisement, the defendants did not become trespassers, ab initio. The judgment on the reserved point was, therefore, right.

Judgment affirmed.