text:
    The Commonwealth versus Henry.
    It was alleged in an indictment that the defendant, with intent to defraud the prosecutor, falsely asserted to him, and also to another person who communicated it to him, that he had a warrant, issued by competent authority, commanding the arrest of the daughter of the prosecutor, for an offence punishable by fine and imprisonment, and that he threatened to arrest' her; by means óf which representations he obtained from the prosecutor effects and money of the value of $100: It was Held, that this was such an obtaining of money under false pretences as was indictable under the 21st section of the Act of 12th July, 1842.
    Error to the Court of Quarter Sessions of Crawford county.

    A bill of indictment was found against Michael Henry, for obtaining money under false pretences. On the part of the defendant a rule was obtained to show cause why the indictment, should not be quashed on the ground that the facts alleged in it, if true, did not constitute the offence charged. On March 28, 1853, the indictment was quashed, and this was assigned for error.
    In the indictment .it was charged that Michael Henry, on the 6th of November, 1852, unlawfully, designedly, and intending to cheat and defraud James B. Smith of his goods, &c., falsely pretended and asserted to him that he had in his possession a warrant, issued by competent authority in the county, authorizing and commanding him to arrest Esther Ann Mapes, the daughter of the said James B. Smith, for an alleged offence or crime against the Commonwealth, punishable by. fine and imprisonment — that he threatened to arrest her, &e.; which said representations, it was alleged, were falsely and designedly made by the said Henry, with intent to cheat and defraud the said James B. Smith of his moneys, &c.; by means of which said false representations and pretences, the said. Henry obtained from Smith moneys and property of the value of $100, in order to protect the said Esther from exposure, prosecution, conviction, &e., for the alleged offence, with intent to cheat and defraud the said Smith, when in truth and fact the said Henry had not then in his possession or control any such warrant, &c.
    In a second count it was alleged that the false allegation was made to one Alanson Canfield, and by him communicated to Smith, in consequence of which Smith requested Canfield to settle and suppress the proceeding ; by means of which false representations and pretences Henry obtained from Smith money and property to the amount of $100, in order to protect his daughter from exposure, &c.
    In a third count it was alleged that Henry, intending to extort money from said Smith, proposed to compromise and suppress a warrant and complaint as before represented, if Smith would pay to him $100 as a consideration for compromising and suppressing the complaint, and alleging that Smith paid the money.
    In the 21st section of the Act of 12th July, 1842, it is declared that, “ Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing, or by any false pretence whatsoever, obtain from any person any money, personal property, or other valuable things, upon conviction thereof shall be imprisoned in the penitentiary or in the county jail, at the discretion of the Court before whom he shall be tried, not exceeding one year, or by fine not exceeding three times the value of the money, or property, or other thing so obtained, or by both such fine and imprisonment.”

      Richmond, with whom was Thompson, for the Commonwealth.
    In support of the indictment reference was made to the case of the Commonwealth v. Burdick, 2 Barr 163; Commonwealth v. Thompson, 3 Penna. Law Journal 250; Lewis U. S. Crim. Law 197. It was said that it seemed that under the Act of 1842, it was necessary only that the pretence be false and successfully used with intent to cheat or defraud: 3 Pa. L. J. 250. In the present case it whs not pretended that the defendant had a warrant as he alleged. It was stated that Henry was not an officer.
    In the Now York Act the provision is that, “if any person shall knowingly and designedly, by false pretence or pretences, obtain from any other person or persons any moneys, goods, or merchandise, or other effects whatsoever, with intent to cheat or defraud such person or persons, he shall be deemed guilty of an offence.” In the case of The People v. Haines, 11 Wend. 557, it was held, that it is sufficient if the false pretence had so material an effect that, without its influence on the mind of the prosecutor, the property would not have been delivered: Lewis Crim. Law 574.

      Pinney, for the defendant.
   The opinion of the Court was delivered by

Woodward, J.

This is an indictment under our Act of Assembly of July 12, 1842, for obtaining money under false pretences. The Court of Quarter Sessions quashed it, on motion, “because the facts alleged, if true, do not constitute the offence charged.” The facts alleged are that the defendant by himself and through one Alanson Canfield, falsely and fraudulently represented to James B. Smith, that he had a warrant issued by competent authority, for the arrest of his daughter, Esther Ann Mapes, for a public offence punishable by fine and imprisonment,'and by reason of such representation obtained from said Smith goods and moneys to the value of one hundred dollars. It is fully charged that this was done with intent to cheat and defraud the said Smith. There is no complaint on record against the manner of charging these facts, but the objection is they do not constitute the statutory offence.

“Every person, who, with intent to cheat or defraud another, shall designedly by color of any false token or writing, or by any false pretence whatsoever, obtain from any person any money, personal property, or other valuable things, upon conviction thereof shall,” &e. Such is the Act. There was no false token or writing in this case, but was there not a false pretence ? In the Commonwealth v. Burdick, 2 Barr 163, the late Ch. J. Gibson took notice that our Act of Assembly was more comprehensive and emphatic than the English statutes, and suggested a doubt whether a naked lie, by which credit has been gained, would not in every case be deemed within our statute. If this doubt be not well grounded, if to constitute a false pretence there must be a lie with a circumstance, I think we have it in the facts set forth in this indictment. To pretend that his daughter had committed a public offence—that a warrant had been issued for her—that the defendant had come to arrest her—and particularly to procure another individual to carry the same intelligence to the prosecutor, was a well concerted scheme to alarm his fears and to extort from him money. It was quite as false a pretence as a fraudulent misrepresentation of a party’s means and resources, which has many times been decided to be a false pretence within our Act and similar statutes in our sister states and in England. See the cases collected in Wharton’s Crim. Law 627. And it was quite as immoral as in the case of Rex v. Young et al., 3 Term Rep. 98, where four men came to the prosecutor, representing that a race was about to take place—that they had bet on William Lewis’s going a certain distance within a limited time, and should probably win, and induced him to advance money. Afterwards the whole story proved to be an absolute fiction. Lord Kenyon very justly observed, “it seems difficult to draw the line, and to say to what cases the statute shall extend; and therefore, we must see whether each particular case, as it arises, comes within it. I admit there are certain singularities which are not the subject of criminal law. Rut when the criminal law happens to be auxiliary to the law of morality, I do not feel any inclination to explain it away. Now this offence is within the words of the'Act, for the defendants have by false pretences fraudulently contrived to obtain money from the prosecutor, and I see no reason why it should not be held to be within the meaning of the statute.” And in more recent cases it has been held, under the English statutes, that if a man fraudulently represent, as an existing fact, that which is not an existing fact, and so gets money, that is a false pretence. Nor is it less a false pretence because the party imposed upon might, by common prudence, have avoided the imposition: Regina v. Wolley, 1 Den. C. C. R. 559; 4 New Sess. Cases 341; 19 Law J. R. C. 165.

Here was a fraudulent representation of several things as existing facts which the indictment alleges were false pretences, and which, if proved, would be so adjudged under the English statutes, and, a fortiori, ought so to be under ours.

In the Commonwealth v. Thompson, 3 Penna. Law Journal, and commented on in Lewis U. S. Crim. Law 197; a similar pretence of a warrant of arrest was held not to be within the statute, only because it was used to procure payment of an honest debt. A false representation by which a man may be cheated into performance ofr a duty is not within the statute. The ingredients of the offence are the obtaining money by false pretences and with intent to defraud, and these are found in the facts alleged in this indictment, and therefore, the judgment of the Court is reversed, and a procedendo awarded.


source: Caselaw Access Project

author: Knox, J.

license: Public Domain

text:
    Steele versus Spruance.
    1. Though by the Act of 1st March, 1780, a sale of unseated Donation Land for taxes made during the life of the soldier is void, yet by the Acts of 1804 or 1815 the purchaser is entitled to compensation for his improvements made thereon, the same to be ascertained by the jury trying the action for the recovery of the land. See Coney v. Owen, 6 Watts 435.
    2. But where a recovery in such a case is had, the land is not forfeited by the delay of the soldier or of his representative for nearly twelve years to pay the sum fixed by the jury for improvements thereon.
    3. In an ejectment by the soldier or his representative, the party in possession of the land is not entitled to interest on the sum fixed by the jury as the value of the improvements.
    4. Nor is he entitled to payment for improvements made on the land six years after the verdict and before any tender was made of the amount fixed by the jury for the previous improvements.
    Error to the Common Pleas of Erie county.

      This was a scire facias in the name of Presley Spruanee, executor of the will of James Jones, deceased, for the use of Robert H. Moore and others, v. Adam Steele and others.
    It was issued upon a judgment in ejectment recovered in the Common Pleas of Erie county on the 17th July, 1839. The ejectment was instituted on the 4th October, 1837, for donation tract No. 94, in the 10th Donation District, in Wayne township, Erie county, the title to which was claimed by the plaintiff, Presley Spruance, as executor of the will of James Jones, the soldier for whom the lot was drawn. The defendants (plaintiffs in error) were in possession of it, and claimed to hold it by virtue of a treasurer’s sale for taxes. The case was tried on the 17th July, 1839, when the jury found for the plaintiff, and valued the improvements made by the defendants at $776.
    The defendants remained in possession after the verdict, and after three years, as alleged in the plea, made other improvements. The plaintiff in the action made no offer to pay until the 1st June, 1851, when he tendered $776, the amount of the verdict, without interest. This was refused by the defendants, and on the 8th July, 1851, the scire facias was issued.
    To the scire facias it was pleaded in substance, first, that by the delay for nearly twelve years to pay the amount found by the jury, the title to the premises became vested in the defendants. Secondly, that after waiting a reasonable time after the verdict, viz., three years and upwards, for the plaintiff to pay the amount assessed, other improvements of the value of $2000 were made, and that these must be paid for before recovering possession.
    These pleas were demurred to.
    Afterwards, on the 5th May, 1852, additional pleas were filed, in which it was alleged that the amount of the verdict should have been paid within a reasonable time; that the defendants, after waiting a reasonable time from the rendition of the verdict, viz., for six years, and supposing by the delay of payment that the plaintiff had abandoned all claim to the land, made other improvements on it of the value of $2000; the plaintiff, whilst the said improvements were in progress, “ standing by and giving no notice that he intended to insist upon his claim to the land.” By reason whereof the title became vested in the defendants.
    An amended replication and demurrer were filed, in which it was. in substance averred, that after the 17th July, 1839, the date of the verdict, and before the issuing of thé scire facias, to wit, on the-1st of June, 1851, the plaintiff tendered the defendants the sum of $776, which the defendants refused to receive, and it was averred that the plaintiff -was willing to pay that sum; it was brought intoGourt.
    As to the improvements alleged to have been made since the-verdict, it was alleged that they had been made as alleged in the plea, and that the plaintiff was not bound to pay for any additional improvements made since the verdict, &c. And a demurrer was submitted.
    The opinion of Knox, President Judge, was as follows:—
    “ The demurrer in this case presents two questions :
    “ 1st. Whether the party plaintiff, by his delay in paying or offering to pay the assessed value of the improvements, is precluded from asserting his judgment, by now paying the amount found due the defendants by the verdict of the jury ?
    “2d. Whether interest is properly chargeable upon the assessed value of the improvements ?
    “In our opinion, the law is against the defendants upon both of these propositions; and we therefore enter judgment upon the demurrer, in favor of the plaintiff.
    “ The question of facts alleged upon the one side, and denied upon the other, must be tried by a jury, before the plaintiff will be entitled to final judgment.”
    Judgment upon the demurrer, in favor- of plaintiff, as of May Term, A. D. 1852.
    Error was assigned to the judgment.
    By the third section of the Act of 3d April, 1804, relative to the sale of unseated lands for taxes, it is inter alia enacted, that no action for recovery of said land shall lie unless the same be brought within five years after the sale thereof for taxes as aforesaid. Provided always, &c. * * * * * “but where the recovery is effected, in such cases the value of the improvements made on the land so sold after the sale thereof shall be ascertained by the jury trying the action for recovery, and paid by the person or persons recovering the same before he, she, or they shall obtain possession of the lands so recovered.”
    A similar provision is contained in the 4th section of the Act of 13th March, 1815, relative to the sale of unseated lands for taxes.
    In the 20th section of the Act of 12th April, 1842, (Acts 262) is another provision in favor of the recovery of the value of improvements in all cases whatsoever where there is a recovery against the tax title, without regard to the nature of the defects of said title; and it is enacted that wherever any person claiming under such tax title may be out of possession and on account of defects in said title fail to recover the land, the jury, under the direction of the court trying the cause, shall assess the value of the improvements made by such person or those under whom he claims, and shall fix the time within which said assessment shall be paid, &c.

      Thompson, for plaintiff in error.
    The defendants had a right to show cause why execution should not issue: 2 Saunders 72; 2 W. & Ser. 95.
    By the Act of 1804 the plaintiff had a right to the land upon payment of the value assessed by the jury, and not otherwise. The defendants have the right of possession till payment or tender: 12 Ser. & R. 143; 5 Watts 350, Miller v. Keen. The defendants having no means to enforce the payment, and being bound to remain in possession or lose the advantage of the improvements, the plaintiff should be bound to tender the amount fixed by the jury within a reasonable time. In this case there has been gross laches, and during such period no notice was given by the plaintiff to the defendants that he intended to take advantage of the verdict. After waiting for six years other improvements were made, and after several years more the lands having risen in value, the position of the parties is different from what it was at the rendition of the verdict.' It was said that under these circumstances the plaintiff should be estopped: 4 Dallas 348; 5 Ser. & R. 443; 7 Watts 400; 1 Jones 429; 4 W. & Ser. 328; 12 Ser. & R. 376; 3 Harris 429; 5 Watts 451.
    It was further contended, if the plaintiff was not estopped, that interest on the amount found by the jury was recoverable. That it was an incident to every judgment in this state: 4 Dal. 251; also cited 5 Watts 350. The law recognises the equity of improvement as a high equity. It was further .contended that the plaintiff should not have execution on the judgment of 1849, but should be left to resort to a second ejectment, wherein the defendants could have their whole improvements estimated.

      Marshall, for defendant in error, plaintiff below.
    As to whether the plaintiff was estopped, it was said that the right of compensation in the defendants for improvements was a statutory right, under the Act of 13th March, 1815, and the remedy allowed was the retention of the possession till payment of the amount assessed for improvements. No time for payment is fixed by that Act, and the Court have no power to limit it. If they had, there was no necessity for the provision as to limitation of time in the Act of 1842. The valuation is no part of the judgment: 5 Watts 350, Miller v. Keene.
    As to the 2d point, it was said that interest was not given by the Act of Assembly. > At common law the defendants were liable to be turned out of possession without compensation for improvements. They are not entitled to other or more extensive rights than are given by the Act. But further, the defendants have had the use of the improvements.
    The question as to compensation for improvements made sinee
      the verdict was not pressed in this Court; hut as to such it was said that they were made by defendants after notice by the recovery of the plaintiff’s title, and were made in their own wrong. Reference was made to the opinion of Gibson, C. J., in the case of Gilmore v. Thompson, 3 Watts 110.
   The opinion of the Court was delivered by

Knox, J.

A majority of the Court in Coney v. Owen, 6 Watts 435, held, that a sale for the non-payment of taxes of unseated donation land, during the life of the soldier, was void, and conferred no title upon the purchaser; but that he could, not be dispossessed without compensation for his improvements.

Under this decision, the defendant’s damages were assessed for his improvements at $776.

Three questions are now presented by the pleadings, all of which were ruled below in favor of the plaintiff:

1. Did the delay in paying or offering to pay the assessed value of the improvements for a period of nearly twelve years work a forfeiture of plaintiff.’s title ? ,

2. Was he bound to pay for improvements made after three years had passed from the date of the verdict, and before the tender of the sum found ?

3. Should the tender have included the interest upon the assessed value of the improvements ?

Before proceeding to the consideration of these questions, I desire to say, that the equity of the defendants below, so strongly urged on the argument, has not presented itself to my mind in a very favorable point of view. It is conceded that this tract of land, in the hands of the old soldier, was free from taxation. Its assessment and sale was therefore a plain violation of his rights; and to compel him to lose his land, or to pay a large sum for improvements made without his knowledge or consent, was, to say the least, a somewhat harsh rule to apply to one who was in no default whatever. But the plaintiffs in error, not content with the construction of the statute already given in their favor, ask us to go further, and hold, that, as the money was not paid within what they call a reasonable time, they have an indefeasible title to the land; or, if not, that they are entitled to Toe remunerated for improvements made since the verdict, with interest upon the first assessment.

Unlike the Act of 1842, neither that of 1804 nor 1815 fixed, nor authorized the jury to fix, any time within which the value of the improvements should be paid; and the only means of enforcing the payment was the retention of the possession. The extent of the remedy was fixed by the legislature, and we have neither the power nor the disposition, in a case like the present, to enlarge it. The provision in the Act of 1815, which is copied from that of 1804, is as follows: “ But where the recovery is effected in such cases, the value of the improvements made upon the lands so sold, after the sale thereof, shall he ascertained by the jury trying the action for recovery, and paid by the person or persons recovering the same, before he, she, or they shall obtain possession of the lands so recovered.”

On the one hand, the penalty for non-payment is a stay of proceedings; and, on the other, the compensation* for non-payment is the possession and use of the estate.

To allow additional improvements to be made and paid for, or to require the payment of interest whilst the possession is withheld, would be to make a new statute, rather than to enforce the old one.

If the position of the plaintiffs in error is seemingly a hard one, it must be remembered that it was originally caused by their own voluntary act in attempting to procure a title by illegal means. The officers of the county could not rightfully sell, nor could the defendants legally buy the land in controversy, and the rule of caveat emptor applies to all public.sales of this character.

This case was properly ruled in the Common Pleas.

Judgment affirmed.


author: Woodward, J. Lewis, J., Black, C. J.

text:
    McCandless versus McWha.
    1. A physician or surgeon is under obligation to possess, and it is his duty, in the treatment of a case, to employ such reasonable skill and diligence as is ordinarily exercised in his profession ; and in judging of this degree of skill, regard is to be had to the advanced state of the profession at the time.
    2. It is the duty of the patient to conform to the necessary prescription, if it be such as a surgeon of ordinary skill and care would adopt or sanction; and if he will not, or under the pressure of pain cannot, his physician is not responsible for injury resulting therefrom.
    3. In an action against a physician for malpractice in the setting and treatment of a broken leg, it was error in the Court to charge that “ the defendant was bound to bring to his aid the skill necessary for a surgeon to set the leg so as to make it straight and' of equal length with the other when healed, and if he did not, he was accountable in damages just as a stone-mason or bricklayer would be in building a wall of poor materials, and the wall fell down; or if they built a chimney and it would smoke by reason of a want of skill in its construction.”
    4. The action depending entirely on its own circumstances, it was not error in the Court to remark to the jury on the policy of instituting suits against physicians, for injuries sustained on account of malpractice.
    Error to the Common Pleas of Beaver county.

    This was an action on the case by James McWha v. Dr. Alexander Gr. McCandless, for an injury sustained by reason of alleged malpractice in the setting and treatment of his broken limb. The action was brought to September Term, 1848.
    The plaintiff, by accident, had his left leg broken about the 24th March, 1847, and the defendant, a surgeon and physician of good standing in his profession and otherwise, was called to set the leg and attend to it.
    After the leg had healed, this suit was brought to recover damages for malpractice, on the alleged ground of a want of the exercise of sufficient surgical skill and attention to the broken limb, whereby it was alleged the leg had become shorter than the other one.
    On the part of the plaintiff in error, the defendant in the action, the only testimony stated on the paper-book, was a deposition of one Dr. Duncan, who, inter alia, testified that he had been in practice over two years. That in the' capacity of a student under the defendant, he went with the defendant to visit the plaintiff about a week after the fracture had occurred. The character of the fracture was that of an oblique comminuted fracture of the tibia and fibula of the leg, which was fractured nearly half-way from the ankle to the knee. The bandages were opened so that he discovered that there were splints on the fore' and back parts of the leg, reaching from the ankle to the knee, to keep up extension and counter-extension. He subsequently stated that at the time he referred to, the leg was considerably swollen. He said he did not feel the limb, but so far as he could determine by the eye, the limb appeared to be correctly set. He further testified that on this occasion he heard a conversation between the defendant and the patient in reference to the limb, and heard the defendant give instructions to the plaintiff as to the dressing and position in which the leg was to be kept. The conversation was in substance a complaint by defendant against the plaintiff for having disturbed the bandages and dressing, by loosing them ; the plaintiff defending the act because his leg was painful. The defendant instructed the plaintiff not to disturb the bandages, to keep them moist and keep the leg in the position he left it, viz. horizontally, telling him if he loosed the bandage the leg might be shortened.
    He further stated that the plaintiff’s habits were intemperate at times before the accident. He expressed the opinion that from the disposition and habits of the plaintiff, no physician could maké him obey instructions as to the care of his leg; nor, considering his disposition and habits, treat his case in the ordinary manner.
    He said that he saw the leg about six months afterwards; the bones of it were displaced, but whether that was the result of unskilful treatment or improper conduct of the patient, he said he could not tell.
    On the paper-book furnished on the part of the defendant in error, the plaintiff in the action, was a statement of the testimony of several witnesses, which was however not brought up with the record.
    September 3, 1850, verdict was rendered for plaintiff for $850.
    _ _ A motion for a new trial was made, and it was stated on the paper-book that upon consultation the Court declared that if the plaintiff would release all but $500, judgment wmuld be given for that sum. Before release the President Judge, Bredin, died; and after his death a reléase having been filed, releasing the damages above $500, on 5th June 1851 judgment was entered on the verdict.
    A writ of error was taken. In the Supreme Court a motion was made for the continuance of the case, on the ground that the bill of exceptions to the charge, which it was alleged had been taken in the case, had not been sealed. The case was continued, and in the opinion delivered in the case by Justice Lowrie, a mode was suggested for having a bill of exceptions made up and sealed. See the opinion in 8 Harris 184-5. In pursuance of such suggestions, a petition was presented to the Court of Common Pleas, representing that Bredin, J., had charged in a certain manner; that exception was taken to the charge, which the president judge had been requested to seal and to file the charge, but though the exception to the charge had been noted by the judge, yet the charge was not filed nor the exception sealed.
    An affidavit was annexed as to the truth of the facts stated in the petition.

    Testimony was heard, after which a bill of exceptions was sealed. It was as follows:
    “ In this case the plaintiff, by his counsel, alleged that he had received serious damage by defendant not setting his leg properly, or when set, of not using proper splints and bandages to keep it in place, and in using no means to keep up extension and counter-extension, in consequence of which, and through neglect of defendant not visiting plaintiff, and examining the leg to see that it was right, the end of the bones slipped past each othér, and when knit, the. broken limb is two inches shorter than the other, or thereabouts.” s . '

      “ After the close of the testimony on the trial of the above case, the Hon. John Bredin, President Judge, charged the jury substantially as follows:—That the defendant was bound to bring to Ms aid the skill necessary for a surgeon to set the leg so as to make it Straight and of equal length with the other when healed, and if he did not,'he was accountable in damages, just as a stone-mason or bricklayer would be in building a wall of poor materials, and the wall fell down; or if they built a chimney, and it would smoke by reason of a want of skill in its construction, they could not only not recover pay for building, but would be accountable for damages. And “ if suits were more frequently brought, we would perhaps have fewer practitioners of medicine and surgery not possessing the requisite professional skill and knowledge, than we now have. But it is due to the defendant to state that, with the exception of the matter complained of in this suit, there is nothing in the evidence given to show that he is not respectable in his profession.”
    “ To which charge defendant’s counsel, on the returning of the jury, and before verdict rendered, took exceptions, and requested the said judge to seal a bill thereof, and file his charge of record. The said judge noted the said exceptions, but omitted to seal the bill of exception and file his charge, and afterwards died on the 21st of May, 1851, suddenly and without having done as requested; and we, the Associate Judges of the said Court (the present President Judge having been counsel for the plaintiff), on petition of the defendant’s counsel to supply the said charge and bill of exceptions thereto, having heard the same,, and the answer of plaintiff’s counsel thereto, and the evidence adduced in support of said petition and answer, do consider and adjudge that the foregoing bill in substance correctly contains the charge as delivered to the jury in the said action, and do accordingly certify and seal the same, this 21st day of September, 1853.”
    It was assigned for error: 1. The Court below erred in charging the jury, “ that the defendant was bound to bring to his aid the skill necessary for a surgeon to set the leg so as to make it straight and of equal length with the other when healed, and if he did not, he was accountable in damages, just as a stone-mason or bricklayer would be in building a wall of poor materials, and the wall fell down; or if they built a chimney, and it would smoke by reason of a want of skill in its construction, they could not only not recover pay for building, but would be accountable for damages.”
    2. In charging the jury that, “ if suits were more frequently brought, we would perhaps have fewer practitioners of medicine and surgery not possessing the requisite skill and knowledge, than we now have.”

      Cunningham and McCandless, for plaintiff in error.
    It was said that the rigid and unqualified position stated in the bill of exceptions was not a correct exposition of the law. It was, however, admitted that the law implies a contract upon the part of medical men to discharge their duty in a skilful and attentive manner: 1 Saunders 312, n. 2; 1 Lord Raym. 213; 2 Wils. 359: 8 East 348. A physician or surgeon is liable for injuries resulting from the want of ordinary diligence, care, and skill: 9 Conn. 209, Loudon y. Humphrey. A physician contracts to employ the usual
      skill, but not to cure: Gallagher v. Thompson, Wright’s (Ohio) Reports, 466. But the rule stated in the bill, that the physician was bound to bring to his aid, not the ordinary and usual care and skill, but such as “to set the leg so as to make it straight and of equal length with the other when healed,” it was said was in conflict with philosophy and the science of surgery. If such were the rule, all that would be necessary for a patient, to do to entitle him to damages, would be to show that the injured leg was shorter than the other.
    It was further contended, that the jury was misled by the Court assimilating the case of the surgeon to that of a stone-mason or bricklayer. If a mason or bricklayer should build a wall out of poor materials which were furnished by Ms employer and the wall fell in consequence of the defect of the materials, the architect would not be liable; also, the mason or bricklayer works with inanimate matter, but the surgeon has for his subject a thing of life, active and changing by its nature. The mode of treatment in one case may not be proper in another. Reference was made to Ferguson’s System of Practical Surgery 316, for observations on the mode of treatment in cases of fracture of the leg, and to the observation that, “ Sometimes a fracture may be treated without the aid of any appliances; on other occasions, what may be deemed the most perfect apparatus will not enable the surgeon to be so successful in his treatment as he could wish;” also to Professor Colles’ Lectures on Surgery 315; Principles of Surgery, by Prof. Miller of Edinburgh, 497; Pruitt’s Modern Surgery 233; same page, “There are some cases which it is as difficult to account for as to remedy;” also Gibson's Surgery, vol. 2, p. 204; Abernethy’s Lectures on Surgery 200 ; Id. 209, “ it is of no use to strap and bandage a fracture to make it unite by main force.” The support to be given to a fracture “ should be gentle and equable, such as it would derive from the healthy state of the parts.” It was said, from the surgical principles stated in the works cited, and from the fact testified to, of the fracture being such as stated— that the plaintiff’s habits were restless and intemperate, and that he interfered with the treatment prescribed and attempted, that the charge was erroneous, and led the jury to a misapprehension of the true principles which should govern the case.
    As to the 2d assignment, it was said that the part of the charge there referred to was contrary to the policy of the law, as tending to promote litigation. For observations on the subject, reference was made to the September No., 1853, of “The New York Journal of Medicine.”

      Roberts and Fetterman, for defendant in error.
    Complaint was made to introducing in.to the paper-book the deposition of Dr. Duncan only.
    It was stated, that the fracture being hot only oblique but com-minuted, or broken into small pieces, according to the testimony, the bone itself could not keep up the proper extension of the leg, and therefore something was necessary to keep up the extension of the limb, otherwise the muscles of the leg would, by contraction, cause the oblique or pointed ends of the bones to slip past each other; whilst, on the other hand, if the leg was bandaged, so tightly as to prevent them passing, painful tumefaction of the limb would necessarily ensue, and require the removal of the bandages, which result, it was said, was proved in this case. It was therefore necessary, as testified by surgeons, to have splints of such length in this ease, as by fastenings at the knee and foot would counteract the contraction of the muscles and keep up the extension of the leg at the proper length, and obviate tight bandaging. Besides the want of such treatment, it was said that the patient was permitted to lie on a soft feather bed, without a box or other means to prevent the sinking of the heel or the weighing down of the foot by the pressure of the bed-clothes.
    It was said that in making the reference, in the charge, to the mason or bricklayer, the judge spoke only of the duty to bring the requisite skill of a surgeon to his aid, referring to the mechanical trades by way of illustrating the principle. That the reference was understood as illustrating the principle of duty, and not as intended to assimilate the work of a surgeon to the inanimate wall of the mason or bricklayer. That after the lapse of three years, the recollection of the language must be imperfect, and the Court should not strain the language of the bill of exceptions to produce a meaning contrary to common sense and probability.
    It was said that it was not stated in the bill of exceptions that the defendant was bound to set the leg so as to make it straight and of equal length with the other, but that he was bound to bring to his aid the skill necessary for a surgeon to set the leg, &c., and it was this skill .to which the Court had reference. That the Court have before it but an isolated part of the charge. The surgeon is bound to bring to his aid the skill necessary to that end, if it be surgically possible. It was said that, according to the charge, he is only to possess the skill necessary for the purpose; but according to the argument on part of the plaintiff in error, he is also bound to accomplish that result.
    As to the portion of the charge referred to in the 2d assignment, it was said that the remark was not specially applied to this case, and that a judge trying a cause has a right to express his opinion on matters of fact, not as binding instructions, but as enforcing on the jury the performance of their duty.

      It was said that medical authorities have been cited to show that extension of the limb is unnecessary in setting a fracture. Whether this be so, is not now a question for this Court. This Court does not sit to correct errors of surgery, but of law. If the judge correctly laid down the law on the evidence before him, he committed no error.
   The opinion of a majority of the Court was delivered by

Woodward, J.

This was an action on the case by the defendant in error against the plaintiff in error, a respectable physician and surgeon, for malpractice in setting a broken leg of the plaintiff; and the only question of any importance presented for our consideration is, whether the Court erred in charging “ that the defendant was hound to bring to his aid the skill necessary for a surgeon to set the leg so as to make it straight and of equal length with the other, when healed; and if he did not, he was accountable in damages, just as a stone-mason or bricklayer would be in building a wall of poor materials, and the wall fell down, or if they built a chimney and it should smoke by reason of a want of skill in its construction.”

It is impossible to sustain this proposition. It is not true in the abstract, and if it were, it was inapplicable to the circumstances of the case under investigation. The implied contract of a physician or surgeon is not to cure—to restore a fractured limb to its natural perfectness—but to treat the case with diligence and skill. The fracture may be so complicated that no skill vouchsafed to man can restore original straightness and length; or the patient may, by wilful disregard of the surgeon’s directions, impair the effect of the best conceived measures. He deals not with insensate matter like the stone-mason or bricklayer, who can choose their materials and adjust them according to mathematical lines; but he has a suffering human being to treat, a nervous system to tranquillize, and a will to regulate and control. The evidence before us makes this strong distinction between surgery and masonry, and shows how the judge’s inapt illustration was calculated to lead away the jury from the true point of the cause. Dr. Duncan describes the fracture as an oblique comminuted one of the .tibia and fibula of the leg, about half-way between the ankle and the knee; and he says that on one occasion when he was present at a dressing of the limb, he heard Dr. McCandless complain that McWha had loosened the bandages, and he told him that if he loosed them his leg might be shortened; but McWha justified his act because his leg was painful. Now, upon such a state of facts, the question was not whether the doctor had brought to the case skill enough to make the leg as straight and long as the other, but whether he had employed such reasonable skill and diligence, as are ordinarily exercised in his profession. For less than this he is responsible in damages ; but if he be held to the measure laid down by the Court below, the implied contract amounts on his part to a warranty of cure ; for which there is no authority in law. In a fracture like this, a shortening of the limb is sometimes an inevitable consequence. Dr. Dorsey in his Elements of Surgery, speaking of broken legs below the knee, says, “ the fracture of both bones is most frequent; it may be transverse or oblique, simple or compound, comminuted or single. The fragments are occasionally displaced in every direction. In transverse fractures there is generally no shortening of the limb, but in those that are oblique the leg is generally shortened.” And from Perguson’s System of Practical Surgery, cited in the argument, we learn that “ the fissure in the tibia may be oblique, and the fragments, two or more, may have a constant tendency to become displaced; there may be great irritability of the muscles, particularly during the early part of the treatment; great restlessness of the patient, or unwillingness to submit to the requisite confinement; in shorty a vast variety of circumstances likely to cause difficulty in the treatment.” Hot to multiply authorities, these are sufficient to show that the rule prescribed by the Court is too rigid for this class of cases; that shortening of the leg may result from the most careful and approved practice, or from the misconduct of the patient. Nothing can be more clear than that it is the duty of the patient to co-operate with his professional adviser, and to conform to the necessary prescriptions; but if he will not, or under the pressure of pain cannot, his neglect is his own wrong or misfortune, for which he has no right to hold his surgeon responsible. Ho man may take advantage of his own wrong, or charge his misfortunes to the account of another.

We do not mean to intimate an opinion that this case was properly treated, or that the leg could not have been restored to the length of its fellow; but in view of the diversified circumstances that attend cases of this sort, it was very important that the true rule of professional responsibility should have been given to the jury, with instructions that they should inquire, from all the facts in proof, whether the defendant had come up to it or stopped short of it.

We have stated the rule to be reasonable skill and diligence ; by which we mean such as thoroughly educated surgeons ordinarily employ. If more than this is expected, it must be expressly stipulated for; but this much every patient has a right to demand in virtue of the implied contract which results from intrusting his case to a person holding himself out to the world as qualified to practise this important profession. If a patient applies to a man of different occupation or employment for his assistance, who either does not exert his skill or administers improper remedies to the best of his ability, such person is not liable in damages; but if he applies to a suegeon and he treats him improperly, he is liable to an action even though he undertook gratis to attend the patient, because his situation implies skill in surgery. Per Heath, J., in Shiels v. Blackburn, 1 Hen. Blac. 161; Seare v. Prentice, 8 East 348. The principle is contained in the pithy saying of Eitzherbert that “it is the duty of every artificer to exercise his art rightly, and truly, as he ought.” This is peculiarly the duty of professional practitioners, to whom the highest interests of man are often necessarily intrusted. The law has no allowance for quackery. It demands qualification in the profession practised not extraordinary skill such as belongs only to few men of rare genius and endowments, but that degree which ordinarily characterizes the profession. And in judging of this degree of skill, in a given, case, regard is to be had to the advanced state of the profession at the time. Discoveries in the natural sciences for the last half-century have exerted a sensible influence on all the learned professions, but especially on that of medicine, whose circle of truths has been relatively much enlarged. And besides, there has been a positive progress ’ in that profession resulting from the studies, the experiments, and the diversified practice of its professors. The patient is entitled to the benefit of these increased lights: The physician or surgeon who assumes to exercise the healing art, is bound to be up to the improvements of the day. The standard of ordinary skill is on the advance; and he who would not be found wanting, must apply himself with all diligence to the most accredited sources of knowledge.

If, in view of the principles here stated, Dr. McCandless shall be found, on re-trial, to have performed his whole duty to his patient, and that any defects in the limb are due to the patient’s fault, or to the peculiarities of the fracture, there ought to be no recovery in damages. But if the blemish be fairly attributable to professional negligence, the jury should assess the damages.

The only remaining error assigned is scarcely worthy of notice. The action depended so entirely on its own circumstances that the observation of the Court as to the policy of such suits was irrelevant, and we may fairly presume harmless. But, for misdirection on the other point, the judgment is reversed and a venire de novo awarded.

Lewis, J.,

delivered an opinion as follows:—

Without dissenting from the able opinion of Mr. Justice Woodwaed, I make the following additional remarks.

The case is peculiar, and relates to matters of such general interest as to justify this course. The Court below charged the jury that “the defendant was bound to bring to his aid the skill necessary for a surgeon to set the leg, so as to make it straight, and of equal length with the other when healed; and if he did not, he was accountable in damages., just as a stone-mason or bricklayer would be in building a wall of poor materials, and the Avail fell down; or, if they built a chimney, and it would smoke by reason of a want of skill in its construction.” This is the error complained of, and it seems to be thought that the Court, in giving this instruction, held the surgeon bound under all circumstances to cure the fractured leg, so as to “make it straight, and of equal length with the other when healed.” I do not so understand the language of the judge. He only held the surgeon bound to “ bring to his did” the skill necessary for the purpose. If the fracture in question was one which might have been restored by the exercise of ordinary skill, there was no error in requiring its exercise from one who held himself out as possessing it, and received compensation for his services in consequence of his represented professional ability. This brings us to the question, Was the injury one which might have been cured by the exercise of ordinary surgical skill ? To decide this question we must have a description of the fracture. The evidence given has not been brought up by the bill of exceptions, and the defendant in error objects to that part of it which has been inserted in the paper-book, without being certified as correct. The only testimony presented for consideration here by the plaintiff in error is the deposition of Dr. Duncan, who was his student at the time of the injury, and visited the patient in company with his preceptor after the first visit of the latter. This witness describes the injury to be “ an oblique comminuted fracture of the tibia and fibula, nearly half-way from the ankle to the knee, or thereabouts and informs us, in speaking of the treatment of it by Dr. McCandless, that “ there were splints on the fore and back parts of the leg, reaching from the ankle to the knee, to keep up extension and counter-extension.” Dr. MeCandless, on this visit, complained that the patient had disturbed the bandages and dressing by'loosing them;” and the patient “defended the act of loosing the bandages, because the leg was painful.” The witness further states that the leg, at this time, was “considerably swollen.”

We have no'precise account of the manner in which the splints were secured so as to “ keep up the extension and counter-extension,” for which the witness tells us they were designed. I am unable to comprehend how splints, “ reaching only from the knee to the ankle,” could be applied to such a purpose without manifest danger of injury by means of the attachments which would be necessary to produce the result. Extension, as used among surgeons, is the force exerted on the lower fragment, in order to bring its superior extremity lower than the inferior extremity of the superior fractured portion; and counter-extension is a resisting force -which prevents the whole limb, or even the body, from obeying the force of extension. The attachment, by means of a circular bandage at the ankle, for the purpose of extension, and that at the knee, for the purpose of counter-extension, would tend to impede the circulation, particularly the venous return (which ought not to be obstructed), and would irritate the parts so as to produce great pain and probable injury. Professor Boyer, in his Lectures on Diseases of the Bones, recommends that the splints should he long enough to extend from the knee to a short distance .beyond the sole of the foot; and that they should rest perpendicularly on their edges, and a third splint on the anterior portion of the leg. Professor Miller, in his Principles of Surgery, states that the splints should “ invariably be of sufficient length to command the neighboring joints ; otherwise, by rotation, re-displacement will certainly take place.” Dr. Hutchinson recommends splints extending from the knee six or eight inches below the sole of the foot, so as to dispense with irritating attachments at the ankle. But Professor Dorsey, whose skill and experience entitles his opinion to great respect, in his work on surgery, informs us that even Hutchinson’s convenient method is found to produce great irritation, and to cause the leg to swell from the pressure of the circular bandages; and that when this happens, in oblique fractures of the' leg (such as the case in question), “ the long splint of Desault must be substituted, and the counter-extension made at the pelvis, in the same manner as in the case of a fractured thigh, except that the leg must be dressed with the bandage of strips.” In fractures of the thigh, permanent extension is usually effected by means of a long splint, acted on by a band attached to its upper extremity, and passed over the perineum, by the tightening of which the splint and the limb are pushed steadily downwards. By the addition of a shorter splint, but long enough nevertheless to extend from the perineum to six or eight inches beyond the sole of the foot, united at the lower extremity to the long splint, by means of a cross-piece, the extending force could be applied to the ankle by attachments to the cross-piece, in such manner as to avoid irritation or other injury. But, according to the opinion of eminent surgeons, “ a short splint, extending a little above and below the fractures only, is not only an absurdity, but a mischievous absurdity Miller’s Prin. Surgery 506. Entertaining these views of the case, I am bound to say, that the plaintiff in error has failed to satisfy me, either upon philosophical principles, or by surgical authority, that the means made use of for the purpose of producing “extension and counter-extension,” were adequate or even proper for the purpose. vIf this was a case in which such extension by artificial means was not required, the mere want of adaptation of the means to that end would be immaterial. But w'e must remember that the fracture was oblique, not transverse; that it was comminuted: that is, the bones were broken, not only at one point, but many; and that both the tibia and fibula were thus fractured. Under those circumstances, in preventing the shortening of the limb by the contraction of the muscles no reliance could be placed upon the bones thus broken into fragments. The necessity of supplying the place of these natural splints, by artificial means, must therefore have been manifest to a surgeon of ordinary skill in his profession. But in addition to the application of means not sufficient to produce the result which was indispensable to a proper restoration of the leg, there is reason to believe, judging, solely from the imperfect view of the evidence presented by the plaintiff in error himself, that the short splints were applied by attachments above and below the fracture, so,as to impede the circulation, to irritate the parts, to cause the limb to be “considerably swollen,” and to produce so much pain that the patient, notwithstanding the strong motive which he had to submit to any treatment likely to effect a perfect recovery, “loosed the bandages because the leg was painful.” If this was the case, whatever may be thought of the propriety of the original application of these means of extension, their continuance, and. the neglect to adopt others less liable to objection, was primé facie evidence of a want of surgical skill, and if not explained to the satisfaction of the jury, the defendant below ought to answer in damages for the injury.

A patient is bound to submit to such treatment as his surgeon prescribes, provided the treatment be such as a surgeon of ordinary skill would adopt or sanction. But if it be painful, injurious, and unskilful, ho is not bound to peril his health, and perhaps his life, by submission to it. It follows that before the surgeon can shift the responsibility from himself to the patient, on the ground that the latter did not submit to the course recommended, it must be shown that the prescriptions were proper, and adapted to the end in view. It is incumbent on the surgeon to satisfy the jury on this point, and in doing so, he has the right to call to his aid the science and experience of his professional brethren. It will not do to cover his own want of skill by raising a mist out of the refractory disposition of the patient.

The “intemperate habits” of the patient are also relied upon here. But this furnishes no excuse for the want of skill in the surgeon. On the contrary, it was a circumstance calculated to admonish him that the case called for more skill and care, than cases of less difficulty demand. We are therefore brought back to the main questions in the cause:

1. Did the surgeon exercise ordinary skill and care in his treatment of the patient ? If he did, he is not liable. If he did not, he is.

2. Was the injury one which, under all the circumstances, might have been perfectly cured by ordinary surgical skill and care ? If it was, and the surgeon failed in his duty in this respect, the damages ought at least to be commensurate with the injury. If the injured limb was not susceptible of a more perfect restoration, the surgeon would nevertheless be liable for ,any unnecessary pain or delay occasioned by the application of unskilful and improper remedies.

Although the error assigned may not be fully sustained, we have nevertheless a right, in our' discretion, to reverse for an error not assigned, if it is believed to involve an important principle, or to affect the justice of the case. In the charge the Court told the jury in substance that the surgeon was bound to bring to- his aid the skill necessary to effect a perfect restoration of the leg. The propriety of this instruction depends upon the question whether the injury was one which, under ail the circumstances, a surgeon of ordinary skill might have perfectly cured. This was a question of fact, which should have been submitted to the jury. Plain as the question may seem, it is not a matter of law, the decision of which can-be taken from them and assumed by the Court. There was, therefore, error in giving the peremptory and unqualified direction which withdrew this part of the case from the jury. -But there are errors of omission as well as those of commission. When the judge spoke of the obligations of the surgeon to bring to his aid the necessary skill, he ought to have enforced the correlative duties of the patient, to submit to all the skilful and proper requirements of his professional attendant. When the jury were told in effect, that the defendant was liable if he failed to exercise the skill necessary to a perfect restoration of, the leg, they ought also to have been informed that if he exercised-’ ordinary skill and care, he is not responsible for the disastrous result which.ensued. Where a case turns upon a question of fact, the jury should be advised of the conclusions of law which apply to each aspect of.it. The object of instructions is to enable the jury to form an enlightened judgment on the whole case. The errors of commission and omission referred to tended to give the jury a one-sided view of the controversy; and, when considered in connection with the facts that a professional man was on trial before a jury of laymen, and that the Court, instead of guarding him as in duty bound, against the prejudices likely to arise in such cases, actually indulged in a strain of remarks calculated to inflame them, it is our duty to correct all the errors within our reach. The remarks complained of in the 2d assignment of error affirm no principle of law, and are-therefore not the subject of review here, further than as they suggest the propriety of exercising a prudent discretion in regard to matters which are subject to review.

It is important to the interests of society that the profession intrusted with the preservation of the health and lives of the community should be held to a strict rule of accountability. Men of true science will not object to this. They court investigation. But the incompetent practitioner, and the designing empiric, “love darkness rather than light,” and the sooner they are driven, by judicial scrutiny, into other pursuits for which they are better qualified and where they can do less mischief, the better for the public welfare. But it is equally important that professional services should be fairly treated, and that true skill and worth should receive.the firm protection of the law. All men have a right to the instructions which make in their favor. But the exigency of the surgeon’s case rendered them indispensable on the present occasion. The difficulties which seem to stand in his way are sufficient without aggravating them by withholding the proper instructions in his favor.

For these reasons I am in favor of reversing the judgment and awarding a venire de novo.

Black, C. J.

We all concur in the law of this case. The judge in his charge fell into an error in stating the amount of skill required in the treatment of the case. We reverse for that reason. But when we decide the legal point we are done with it. We are not authority on questions of surgery. 'Our hands are abundantly full of questions which belong to our own profession, without volunteering opinions on sciences which relate to others. I think it necessary to say this in order to prevent the Court below on second trial from supposing that we intend to give them any instructions on matters in which we have no jurisdiction.

But this is my own opinion, for which no other member of the Court is responsible.


author: Woodward, J.

text:
    Cattison versus Cattison.
    1. In an application by a husband for a divorce, the wife in her answer alleged as the cause of her desertion, that her husband had assaulted her with a knife in his hand and hurt and drove her off, and had been guilty of other misbehavior towards her which justified her desertion, without otherwise specifying the particular misconduct; to which the husband made a general replication and denial, and demanded an issue. On the trial no special instructions were asked, and the Court submitted to the jury whether the respondent had suffered such treatment as acquitted her of wilful and malicious desertion, and verdict was rendered for the respondent: Held, that no special instructions having been asked of the' Court, this Court will presume that the matters alleged in the answer were true, and that the desertion was justifiable.
    2. The declarations of the wife, made on the night of her flight and immediately after it, stating the reason of her departure, were evidence on her part.
    Error to the Common Pleas of Lawrence county.

    This was an application by Thomas Cattison v. Susan Cattison, his wife, for a divorce. In the petition it was averred that his wife had wilfully and maliciously deserted his habitation for upwards of two years.
    In the answer her absence was admitted, but it was averred that in July, 1847, and for a long time before, the said petitioner, by the indulgence of a violent temper and intemperate habits and by repeated indignities to her person, had embittered her life; and that on the 1st July, 1847, he assaulted her with a knife in his hand and hurt and drove her off; and was guilty of other cruel and barbarous treatment of such enormity, as to make her condition intolerable and her life burdensome, and thereby forced her to withdraw from his house and family.
    A general replication was made denying the allegations of the respondent, and an issue was asked. ,
    On the trial, Daniel Cole was offered on the part of the respondent, to prove that she left her husband in the beginning of July, 1847; that she came to his house on the 2d July between 11 and 32 o’clock at night; that she came barefoot, &c. It was then offered on her part to prove her condition and appearance at the time, and what she said on her arrival “ explaining the motive and reason of her coming there.” This was objected to as incompetent, but was admitted.
    It was also offered on her part to prove, by another witness, that she came to his house on the same night about 12 o’clock. It was then offered to prove, on her part, her condition and appearance at the time, and what she said as explaining the cause and motive of her flight, and that she claimed assistance. This was objected to, hut was admitted.

      The Court charged that “ The question for the jury is not whether the defendant has suffered such treatment as to entitle her to a divorce. She is not seeking it, but on the contrary desires to remain in the bond of matrimony. But the question is, whether she has suffered such treatment as acquits her of wilful and malicious desertion from her duty and her husband’s roof. Whether this treatment existed, and what her motives in separating from him were, are facts for the jury.”
    Verdict was rendered for the defendant.
    Error was assigned to the admission of the parol testimony; and 3dly, to the charge to the jury.

      McGfuffin, for plaintiff in error.

      Taylor, for defendant,
    the Court declined to hear. As to the declarations of the wife were cited 1 Greenl. Ev. 108; 2 Russ. 682; 14 Ser. & R. 275.
   The opinion of the Court was delivered by

Woodward, J.

The libellant charged that his wife had wilfully and maliciously deserted his habitation without any just or reasonable cause, for two years and upwards; and on this ground prayed for a divorce a vinculo matrimonii. In her answer she denies the wilful and malicious desertion, and assigns as the cause of her leaving him, his violent temper, intemperate habits, and repeated indignities to her person which had embittered her life; and especially that on the first day of July, 1847, he assaulted her with a knife in his hand, hurt her, and drove her off, and was guilty of other cruel and barbarous treatment of such enormity as to make her condition intolerable, and her life burthensome, and thereby forced her to withdraw from his house.

As to the general charges of barbarous treatment contained in this answer, the libellant would have been entitled to demand specifications of time, place, and circumstance, before joining issue; but he waived this right, and put in a general replication denying the truth of the “ matter and things in the respondent’s plea, alleged in bar of his libel,” and on this issue demanded a jury.

On the trial no particular instruction was asked, and the Court submitted to the jury the question whether the respondent had suffered such treatment as acquitted her of wilful and malicious desertion from her duty and her husband’s roof, and they found that she had.

On an issue made up and tried in this manner, the questions argued here do not arise. The rule contended for by the plaintiff in error may be conceded: that the reasonable cause which would justify a wife in abandoning her husband must be such as would entitle her to a divorce. The answer is, all that is found by the verdict.

It will not be disputed that the matters alleged in the respondent’s answer would, under the Act of Assembly, be cause of divorce. Sitting in a Court of error, we are obliged to assume that these matters have been found; so that, according to the strictest application of the rule contended for, they were sufficient to justify her desertion, or, at the least, to take away from it the wilful and malicious aspect which the statute requires it to bear in order to'entitle him to a divorce. Whether the acts proved amounted to such cruel treatment as justified her desertion, is a question that does not arise on the record, and therefore we do not decide it. The Court below expressed no opinion on this point, and not being asked to do so, the omission is not assignable for error, for it has been often ruled that want of direction, not asked for, is not error: McClure v. McClure, 1 Barr 374; Churchman v. Smith, 6 Wh. 146; Burns v. Sutherland, 7 Barr 108.

We think the evidence contained in the bills of exception was properly admitted. The declarations of the wife, the night of her flight, were so connected with the principal fact under investigation as to b'e competent' as part of the res gestee. In Rawson v. Haigh, 2 Bing. 99, cited by Mr. Grreenleaf, letters written during absence from home, were admitted as original evidence explanatory of the nature of thé departure and absence, the departure and absence being regarded as one' continuing act. Here the declarations were much more immediately connected with the act of departure than the letters in that case, and were full as worthy evidence, explanatory of the motives of the party.

The judgment is affirmed.


author: Black, C. J.

text:
    Good Intent Company versus Hartzell.
    1. The pleadings on the part of the defendant need not be changed on amendment of the narr. Those put in previous to the amendment are applicable to a new narr. subsequently filed.
    2. If no plea be put in on the part of defendant, the want of it is not a ground of objection on his part in a Court of error. A trial without plea is a waiver of form and a tacit agreement to try the cause on its merits.
    3. Though the cause of action cannot be changed by a new count, yet the defendant's responsibility may be stated therein in a different form or as arising in a different way, or by several contracts express or implied.
    4. The name of one superintendent of the Cumberland Road having been omitted as a plaintiff, in instituting a suit for tolls, it was properly added under the provisions of the Act of 4th May, 1852.
    5. A plea in abatement is not receivable after a plea in bar.
    6. It being provided in the Act of 14th April, 1845, to regulate tolls on the Cumberland Road, that in no suit for tolls under this Act or under former Acts relating to the same road, shall any plea in abatement for non-joinder of any person or persons jointly liable with the person or persons, be allowed or sustained. It was Held that a plea in abatement was not admissible after the plea of the general issue to the original declaration and a demurrer to the amended declaration, and after the trial was in progress. The Act of 1845 is not to be confined to cases wherein there is no contract.

      7. The non-joinder of a co-promissor in an action of assumpsit, is no cause of demurrer. Though in the declaration the contract was stated to have been made jointly with other parties not sued, this will not take the case out of the general rule, it not being averred in the narr. that the party not joined is alive.
    8. The Act of 1845 to regulate tolls on the Cumberland Road, prohibiting a plea in abatement on account of the non-joinder of a co-promissor as defendant, such non-joinder could not be interposed as an objection to evidence offered in the case.
    9. A general assignment of error as to several bills of exceptions, or to the answers to several points, is not according to the rules of Court. Each point should be the subject of a distinct specification.
    10. An agreement was made by a commissioner of the Cumberland Road with two stage companies, as to the amount of toll for a limited time, viz. till May, 1848. After the expiration of the time the companies continued to run their stages till 1851, without any other agreement, paying for a part of the time according to the amended agreement, but not paying anything for the latter portion of it; but not notifying the person in charge of the road, of their refusal to be bound by the contract, or without tendering the amount of toll legally chargeable against them: Held, that the defendants were to be considered as tacitly agreeing to be bound by the contract.
    Error to the Common Pleas of Fayette county.

    This was a foreign attachment in case, issued August 16, 1851, in the name of David Hartzell, Superintendent of the Eastern Division of the Cumberland Road in the State of Pennsylvania, v. Thomas Shriver and others, named as partners under the name and style of the Grood Intent Stage Company. The object of the proceeding was to recover an amount for toll on stages and passengers passing along the Cumberland Road.
    Soon after a portion of the Cumberland Road was ceded to Pennsylvania, difficulties arose between the officers of the road and certain stage companies in regard to tolls. See the case of Hopkins v. Stockton, 2 W. & Ser. 163, and Searight, Commissioner of the Cumberland Road, v. Stockton and Stokes, reported in 3 Howard. These adjudications were followed by the Act of 14th April, 1845: Acts, p. 430-2. Under the provisions of that Act an agreement in writing was entered into on the 5th day of September, 1845, by William Hopkins, Commissioner of the said road in the State of Pennsylvania, of the one part, and J. C. Acheson on behalf of the National Road Stage Co., and Wm. H. Stille, on behalf of the Good Intent Stage Co., of the other part, and was signed by the three; by which it was agreed that the coaches of the two companies were to be allowed to pass through the gates, from the 1st October, 1845, till the 1st July, 1846, for the annual sum of $11,000, payable quarterly; the companies agreeing to pay at that rate jointly—the payments to be made quarterly in January, April, and July. On the 3d July, 1847, a second agreement was made, as follows: It is hereby agreed by William Hopkins, the Commissioner of the National Boad in Pennsylvania, that the tolls to be paid by the Central Route Stage Companies on said road, for all the coaches run by them, shall be at the rate of ten thousand five hundred dollars per annum, from the 1st day of July, 1847, to the 1st day of May, 1848, said tolls to be paid quarterly.
    Signed by Wm. Hopkins.
    Wheeling, July 3d, 1847.
    It was testified on the trial of this case, that the companies paid at the rate of $11,000 per annum, till sometime in the summer of 1847, when the amount of toll was reduced as before stated to $10,500; after which they continued to run their coaches till the commission of Wm. Hopkins expired in May, 1848, and after-wards.
    By the Act of Assembly of 8th April, 1848 (Acts, p. 395), the Courts of the counties of Fayette, Washington, and Somerset were authorized to appoint three trustees, whose duty it should be to appoint one or more superintendents, who were to perform the duties before exercised by the commissioner of the Cumberland Boad. Under this Act the Court appointed Wm. Searight and Joseph Doak superintendents, who remained in office till 1st May, 1851, when their appointments expired, and David Hartzell and Abraham Hair were appointed superintendents. During the year 1850, and part of 1851, the toll was said to be in arrear, and this proceeding was instituted to compel- payment.
    On the 10th August, 1852, a narr. was filed, in which it was alleged that the defendants were proprietors of lines of coaches, and that certain other persons were, proprietors, under the name of the National Boad Stage Company, of like lines of coaches, and that the defendants agreed with the commissioner that, in lieu of the tolls' authorized by law to be collected at the gates, they Would, from the 1st July, 1847, till the 1st May, 1848, “ together with the said National Road Stage Company,” pay the commissioner at the rate of $10,500 per annum; and alleging that this contract was continued till the impetration' of the writ in this case, &c., &c.
    The declaration contained another count.
    The defendants, on 2d September, 1852, plead non assumpsit and payment, and payment with leave, &c. At December Term, 1852, the case was on the trial list, but was continued. On the 13th January, 1853, the plaintiffs’ counsel obtained a rule to show cause why Abraham Hair, the other superintendent of the road, should not be added as a plaintiff, and also to add Howard Kennedy and others named as partners, under the name of the National Road Stage Company as defendants. On the 17th January, 1853, the rule was made absolute as to the additional plaintiff, and discharged as to additional defendants. These amendments were asked under the 2d section of the Act of 4th May, 1852 (Acts, p. 574), which is as follows: “ That in all actions pending, or hereafter to be brought, in the several Courts of this Commonwealth, and in all cases of judgments entered by confession, the said courts shall have power, in any stage of the proceedings, to permit amendments by changing or adding the name or names of any party, plaintiff or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party.”
    An amended narr. was submitted, in which was alleged an agreement between the commissioner and the defendants, "together with the National Road Stage Company,” on the 5th September, 1845, for the payment of the annual sum of eleven thousand dollars, in lieu of the tolls chargeable by law; also alleging that the plaintiffs, as superintendents, succeeded the commissioner in charge of the road; and alleging an assumption by the defendants to pay the amount stated to be due. Another count was added, in which it was alleged that the defendants, on 3d July, 1851, were indebted in $64,166 for tolls before that time accruing upon the other lines of coaches, and upon the' coaches of the National Road Stage Company, and alleging a promise to pay.
    The altered narr. was objected to as alleged, because,
    1. In the declaration as originally filed, the plaintiffs declare against the defendants and certain other persons, proprietors, &c., under the name, &c., of the National Road Stage Company. In the amendment they declare against the defendants alone; notwithstanding the contract and parties set out in the declaration originally as filed show that the defendants, if liable at all, were liable jointly with' the other persons named therein.
    2. In the declaration as originally filed, the plaintiffs declare upon a contract dated and commencing on the 1st day of July, 1847, and to continue till the 1st May, 1848, for the sum of $10,500 per annum, of which the defendants were liable at the rate of $5250 annually. In the amendment they declare on a contract dated on the 5th day of September, 1845, and for the annual sum of $11,000, although, in the declaration as originally filed, they admit that all tolls due by the defendants to the plaintiffs were paid till the 1st of April, 1850.
    It was alleged that the plaintiffs had not adhered to the original instrument or contract on which they sued.
    The amended narr. was admitted.
    The defendants then demurred to the declaration, and assigned as ground for it, that the' narr. as amended- charges the defendants and the National Road Stage Company jointly ; and that the suit is against the Good Intent Stage Company alone.
    The defendants then filed a plea in abatement, because the several promises, &c., if made, were each made jointly with the National Road Stage Company, and not by the Good Intent Stage Company alone; and as the National Road Stage Company was not named in the writ, they prayed judgment, and that the writ be quashed.
    On 22d January, 1853, the plea in abatement was overruled. On same day the jury were sworn.
    From the judge’s notes of trial it appeared that the amendment of the declaration was allowed on the trial. That the deposition of Wm. Hopkins, former commissioner of the road, was offered in evidence to prove the contract before alleged, and that it was objected to as not proving the contract as laid in the declaration, but a different one between different persons; that the evidence offered proved a joint contract, and the declaration was against the Good Intent Stage Company alone, &e. It was stated, “ the Court permit plaintiffs to amend so as to meet the objection, and to lay the promise and contract to have been made by the Good Intent Stage Company jointly with the National Road Stage Company.” To this defendants excepted.
    Then the defendants demurred as stated, and the Court gave judgment for plaintiff on the demurrer that the defendants respond over.
    The deposition of Wm. Hopkins was also objected- to, because there was a written contract, as appeared from the deposition. The objection was overruled, because the written contract was attached to the deposition, and to be read with the oral testimony.
    It was further objected to on the ground that the contract was a joint one. Objection overruled, on the ground that the Act of 1845 precludes a plea in abatement in such a case.
    The deposition proved the contract of 1845, for payment for tolls at the rate of $11,000 for a year; that the coaches continued to run without any other agreement except an abatement made by the deponent on 1st July, 1847, of $500. The coaches to run at the rate of $10,500 per annum till 1st May, 1848.
    Joseph Doak was examined, and stated that he commenced to act as superintendent on 7th June, 1848, and went out on 1st May, 1851. That the companies run and paid as they had done whilst Hopkins was commissioner, until after the first quarter was due in 1850. That the contract made with Hopkins “ was continued by. both parties until 1st of May, 1851,” when the witness went out of office.
    He further said the agreement was $10,500; this he said he understood to have been the Hopkins agreement; they paid at that rate during the time he was in office.
    H e further aid, that some time after the first quarter in 1850 had expired, the defendants declined paying; that he heard one of the defendants say that the tolls were too high; that the conversation was not addressed to the witness. In the fall after, he wanted two of the defendants to pay according to the contract for $10,500. They objected, and said it was too high.; that the travel had fallen off.
    The agreement of 3d July, 1847, with the commissioner for tolls from 1st July, 1847, till May, 1848, at the rate of $11,000 for a year, was read.
    It was admitted that the tolls had been paid till the 1st April, 1850, and $1000 afterwards.
    On the part of the defendants it was offered to prove that the travel had lessened from May, 1850. Objected that there was an agreement, and the evidence was overruled.
    Gilmore, President Judge, in his charge said, inter alia, that it was apparent that the defendants refused to pay according to the contract, and gave notice of the refusal as early as 2d December, 1850. He charged that if the contract was made a continuing yearly contract, ending on 1st May of each year, the company were not at liberty to run part of the year under the contract, and then decline to comply for the remainder of the year.
    He further charged, that if it was competent for the defendants to disannul the contract at any period they might think proper, they could not do it so as to make it effectual and binding upon the authority controlling the road, except by offering to pay at the gates the tolls which could be required by law.
    January 24, 1853, verdict for plaintiff for $11,692.41J.
    See 13th section of Act of 14th April, 1845, (Acts, p. 431) passed, inter alia, to regulate tolls on the Cumberland Road, in which it is provided that “ in no suit for tolls under this Act, or under former acts relating to the same road, shall any plea in abatement for non-joinder of any person or persons, jointly liable with the person or persons sued, be allowed or sustained.”
    See the opinion of Black, C. J., for the assignments of error which it was deemed proper to notice.

      Howell and Loomis, for plaintiffs in error.
    It was inter alia alleged, that the original cause of action cannot be changed: 5 Barr 256; 2 Rawle 337; 4 W. & Ser. 277; 1 Whar. 287; 4 Harris 162. The declaration first filed was upon the agreement of July, 1847, for tolls at the rate of $10,500-per annum, to continue till 1st May, 1848, and for the payment of tolls quarterly; and the claim was for the quarters ending on 1st April, 1851, $384.97½; and for the quarter ending on 1st July, 1851, $984.37½; and that the Good Intent Stage Company were liable for only $5250, and that they had paid at that rate.
    In the amended declaration the plaintiffs declare on the agreement of 1845, between the commissioner and the two companies, for the payment of tolls at the rate of $11,000 for a year, payable quarterly—to be paid jointly, and payable quarterly in January, April, and July. It was intimated that these two contracts were not identical; that the agreement of 1845 was abrogated by the agreement of 1847; that the amount of tolls to be paid was reduced by the falling off of the travel, yet that the verdict was rendered for tolls at the rate of $11,000 a year.
    It was contended that the Act of 4th May, 1852, did not authorize a new party to be added to the suit—that the Act only authorizes the Courts to permit amendments, “ by changing or adding the name or names of any party, plaintiff or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party.”
    It was, inter alia, further said that there was no issue when the cause was tried—that the second declaration was a withdrawal of the first—and to it there was no plea: 5 Watts 70; 5 Wh. 186; 9 Barr 139. The defendants did not tacitly agree to waive matter of form, as they were protesting against the proceeding. The case of Sauerman v. Weckerly, 17 Ser. & R. 116, said not to be applicable.
    It was said that the 13th section of the Act of 1845, prohibits pleas in abatement only when difficulty arises in ascertaining the names of all the persons Who are liable for tolls; and that the 16th section of the Act, which gave the commissioner power to make commutation of the tolls, does not contain any prohibition of such a plea. That the commissioner is left to proceed on his contract, under the customary rules of law.
    By the agreement of 3d July, 1847, the tolls were to be paid at the rate of $10,500 per annum, .from the 1st July, 1847, to the 1st May, 1848, and to be paid quarterly. It was said that this was not an agreement for one year or from year to year. It was submitted, that though the defendants, for some time after the expiration of that period, continued to pay at the said rate, that there was nothing to prevent them, at the end of any quarter, from giving notice and refusing to pay according to it. The 15th and 16th sections of the Act of 1845 were referred to. It was said that the contract of 1847 was a new agreement, for a specified period, and that when it expired by its own -limitation, the Act of 1845 prescribed the remedy.

      Kaine and Veech, for defendants in error.
    The defendants plead to the original declaration; and if when the amendment was allowed and filed they did not withdraw or alter their pleas, they were pleas to the amendment under the Act of 1806: 11 Ser. & R. 126; 17 Ser. & R. 117. The cause of action was the same. A plea in abatement is prohibited in such a case as this by the Act of 1845; such a plea is too late after a plea in bar. The demurrer was in substance the same as the plea in abatement. The Court gave judgment of respondeat ouster. It should have been a judgment quod recuperet: 4 Rawle 83, Bauer v. Roth. The matter alleged was no cause of demurrer and could be taken advantage of, if at all, only by a plea in abatement, (which was prohibited by the Act), unless it appear on the face of the declaration or some other pleading of the plaintiff, that the party omitted is still living, as well as that he jointly contracted; in which case the defendant may demur: 1 Chitty’s Pl. 30; 1 Bos. & Pul. 73; 1 Saunders 291; Id. 422.
    It was alleged that the plaintiff had not declared on a written contract, but only on a parol agreement made with Wm. Hopkins on 5th September, 1845, which was proved by his testimony in connection with the writing.
   The opinion of the Court was delivered by

Black, C. J.

By the 16th section of the act of 1845, relative to the Cumberland Road, the commissioner of the road is authorized to contract with the owners of a line of coaches for tolls in a gross sum, by the month, quarter, or year. Two stage companies were running over the road in 1845, and for some years afterwards,’ namely, the Good Intent Stage Company and the'National Road Stage Company. They jointly contracted with the commissioner for leave to run all their coaches through all the gates in Pennsylvania, at the gross sum of $11,000 per annum, payable quarterly. This contract was reduced to writing, and signed by the commissioner and by one member of each company, on the 5th of September, 1845. Another paper was signed by the commissioner alone, and dated July 3, 1847, by which the rate of tolls was fixed at $10,500 per annum from the 1st July to the 1st May, 1848. No other contract was made, and both the stage companies continued to run without paying toll at the gates, but paying up to 1850, according to the last mentioned paper. In 1850 they ceased to pay regularly according to the agreement, but did not pay or offer to pay at the gates. Being in default about $11,000, the gates were closed upon them in 1851, and this suit brought to recover the sum due to the road. The defendants below now come into this Court, averring that the Court of Common Pleas committed twelve fatal errors in the trial of the cause. Though some of these errors are not specified according to the rule of September, 1852, we will consider and decide upon all that are of any importance.

1. It is said that there was no plea, and the cause was therefore tried without being at issue. In point of fact there were pleas and issues regularly formed. The assertion to the contrary has no foundation except this: that, after the issue was made up, the plaintiffs, on leave given, added several new counts to their declaration. The pleadings need not be changed upon every amendment of the narr. Those which were in at first are held applicable to a new narr. subsequently filed, unless the defendant himself thinks proper to change his defence. But even if it were true that no plea at all had been pleaded by the defendant, it is not an objection which would avail either party in a court of error. -It-has long since been decided for reasons which have never been controverted, that a trial without a plea is a waiver of all matter of form, and a tacit agreement to put the cause on its merits.

2. The suit was brought to recover the tolls which became due in 1850 and 1851, and for which the two stage companies had made themselves jointly liable by their contract with the commissioner, dated 5th. September, 1845. The declaration as first filed based their liability on the paper signed by the commissioner alone, and dated July 3, 1847. In the new counts the latter seems to have been treated as a mere temporary modification of the contract created by the former, and accordingly the first contract is counted upon. The defendants objected to this new narr., as introducing a new cause of action. But the objection cannot be sustained. The demand in both is for the same tolls, the same failure to pay for the same use of the road during the same period. This is the substantial cause of action, and if we would refuse to let the plaintiffs state the defendants’ liability for the same debt in different forms, or as arising in different ways or by several contracts, express or implied, we would soon deprive ourselves of the right, so often exercised, of boasting that we permit amendments in all cases where justice requires it.

3. When this suit was brought, there were two superintendents of the Cumberland Road; one of them east, and the other west of the Monongahela. These officers came in place of the single commissioner who had previously performed the same duties. The suit should have been brought in the names of both. But one was omitted by mistake, and the court allowed an amendment which inserted it. This was simply an exercise of the power expressly given to all the courts by the act of 4th May, 1852. There were no new defendants added.

4. The defendants put in a plea in abatement. This was after declaration filed, and pleas pleaded in bar; after an amendment of the declaration; after the jury were sworn; after a portion of the evidence was given and the trial had made some progress. If there is any technical rule of the law more clearly defined or better understood than another, it is that a plea in abatement cannot be received after a plea in bar. The Court ought not to have allowed it to go upon the record, unless with the consent of both parties, and then only upon the condition that all other defences should he abandoned. It is the duty of a court to lean hard against a party who puts himself upon ground like this. Dilatory pleas which go merely to the action and. not to -the facts upon’ which it is based, are never favored. This would be a sufficient answer to the fourth specification; but there is another, which is not less conclusive. The act of 1845, relative to the Cumberland Road, provides, that in no suit for tolls under that act or any other, shall any plea in abatement for non-joinder be allowed. This was a suit for tolls, under the act of 184,5. The defendants proposed to plead in abatement, and it was not allowed. To have done otherwise would have been to set the statute at nought. We think there is nothing in the argument which would confine this prohibition to cases in which there is no contract.

5. The defendants demurred to the declaration. This also was after the swearing of the jury. The Court seems to have paused in the midst of the trial, and suffered a party who was losing ground in the issue of fact, to try what he could do at an issue in law. When the experiment failed, the investigation of the facts' was resumed, just as if nothing had happened in the mean time. After such unprecedented indulgence, any complaint of the defendants’ against the Court cannot but look a little ungracious. The demurrer admitted the truth of every averment in the declaration, and the judgment should have been, not quod respondeant ouster, but in favor of the plaintiffs, quod recuperent, which would have put an end to the controversy. It is in vain to say that good cause of demurrer was shown. The non-joinder of a co-promissor in an action of assumpsit is barely sufficient to sustain a plea in abatement when it is pleaded in time, and thoroughly proved, and when no statute stands in the way of it; and it is no cause of-demurrer. The argument based on the form of the declaration which states the contract to have been made jointly with other parties not sued, will not take the case out of the general rule. It is well answered by the fact that there is no averment that the party not joined is alive. This is a somewhat sharp reply; but not sharper than the demurrer itself.

6, 7, 8. The sixth, seventh, and eighth specifications relate to the- deposition of William Hopkins, the commissioner who made the contract with the defendants. This was objected to on three distinct grounds, and each objection successively overruled, and the ruling excepted to. The first was, that it proved a joint contract with other persons not sued, and not. mentioned in the narr. To obviate this, the declaration was amended, and the contract was set forth as a joint one. This was unnecessary, for the evidence was admissible without the amendment. But it did not hurt the defendants. On the contrary, it gave them what they seem to have prized very highly, an opportunity afterwards of making other objections which were equally nugatory. The point next raised was, that there was a written contract. This must have meant that the evidence was not admissible to explain, alter, or vary the writing. But that was not the object, purpose, or effect of the testimony. The third objection went to the written contract of 5th September, 1845, and is a mere repetition of the first. It was rightly overruled for the same reasons that made the demurrer unsustainable, and for the additional reason which the Court below gave, namely, that a plea in abatement for the non-joinder of parties jointly liable was prohibited in such a suit. It is no answer to this that the non-joinder may be taken advantage of without a plea in abatement when the fact that other parties are liable is averred by the plaintiffs themselves. Concede that this appears in the declaration; concede also, what certainly does not appear, that the parties omitted from the suit are still alive; nevertheless a fair and just interpretation of the statute will forbid that any advantage shall be taken in any way whatever of a non-joinder. It is very plain what mischief that part of the act was intended to remedy, and it is equally plain that the purpose of the legislature would be defeated if a party forbidden to plead a non-joinder in abatement, should be allowed to show it as a reason for keeping out the evidence.

9. The next specification refers to three bills of exception, angives the substance of neither. According to the rule of this Court, all these errors, if errors they be, are waived by this irregular mode of specifying them. The counsel of the plaintiffs in error probably thought them unworthy of being properly'assigned, for the argument was silent on that part of the case.

10. The tenth specification asserts that the Court erred in answering all the points of the defendants in the negative. Our rule requires that each point should be the subject of a distinct specification. The defendants submitted five points to the Court, and here they are all run together. I think they were rightly answered. "We are, however, not to be understood as giving any opinion on them, but only as deciding that they are not before us in any shape which makes it necessary or proper for us to notice them'.

11, 12. Although the written contract was by its terms to endure only for a limited time, yet the defendants and the other company with which they were connected continued for years after-wards to run their coaches over the road and through the gates, and continued also until 1850 to pay for the privilege the gross annual sum fixed by their agreement. After the expiration of the term limited in the contract, either party had a right to fall back upon his original position. In other words, the commissioner might- have closed the gates, or the stage companies insisted upon paying the tolls according to the rates fixed by law. But when both parties continued to act under the contract, their tacit agreement to he bound by it is as strong as any express renewal could make it. The defendants could certainly not get clear of its operation except by giving a distinct and formal notice to the authorities controlling the road, accompanied by an offer to pay the legal tolls at the gates. As long as they continued to pass the gates without paying, they could only account for their conduct in one of two ways, either by referring' it to the contract, or else by acknowledging that they were guilty of a gross outrage on the rights of the public. Of course, no Court would listen to the latter explanation. Our duty is to put upon their acts the construction most favorable to their character for honor and honesty. This point being settled, it is immaterial whether the Court was right or not in saying it was a contract from year to year.

This disposes of all the grounds taken by the plaintiffs in error. Every question of law is most clearly against them, and there is not justice enough in their case to make it worth the thousandth part of the ability and ingenuity expended on it by their counsel.

Judgment affirmed.