text:
    Alldred’s Estate
    (No. 1).

      Promissory notes — -Indorsement-—Indemnification of indorsers — Notice of protest — Corporations.
    1. Where the directors of a corporation indorse the promissory notes of the company for the benefit of the company, and thereafter accept the benefit of a deed of trust of all of the property of the company executed for the sole purpose of indemnifying them against loss by reason of their indorsement, the directors become principals and cannot rely as a defense against the payment of the notes, on the fact of nonpresentment and the lack of notice of dishonor.

      Promissory notes — Indorsement — Irregular indorsement■— Act of May 16, 1901, P. L. 194.

    2. Under the Act of May 16, 1901, sec. 64, P. L. 194, a person not otherwise a party, who places his signature in blank, before delivery, on a promissory note payable to the order of a third party becomes liable as indorser to the payee and all subsequent parties. Prior to the act, the indorsement of such person would have been irregular and he would not have been liable to the payee.
    Argued Oct. 18, 1910.
    January 3, 1911:
    Appeal, No. 15, Oct. T., 1910, by John Alldred and Emma A. Trautman, Executors, etc., from decree of O. C. Allegheny Co., Sept. T., 1906, No. 117, awarding distribution in Estate of William H. Alldred.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Exceptions to adjudication. Before Hawkins, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was decree awarding distribution to estate of E. E. Lusk.

      Wm. E. Schoyer, of Lyon & Hunter, for appellant.

      F. It. Stoner, for appellee.
   Opinion by

Mr. Justice Potter,

This appeal is by the executors of the will of William H. Alldred, deceased, from the decree of the orphans’ court of Allegheny county, holding the estate liable by reason of the indorsement by William H. Alldred, of two promissory notes, made by the Tri-State Mining & Manufacturing Company, to the order of Mrs. E. E. Lusk.

It appears from the record that in 1903 and 1904, William H. Alldred, the decedent, was a stockholder and director in the Tri-State Mining & Manufacturing Company, a corporation organized under the laws of New Jersey, and engaged in mining operations in Tazewell and Russell counties, Virginia. On or about June 17, 1903, Mrs. E. E. Lusk loaned the sum of $2,000 to the company; and on or about June 20, 1903, loaned to it the further sum of $500. As security for these loans the company executed its demand notes to the order of Mrs. Lusk, for the respective amounts loaned. The transaction was managed by B. E. Tinstman, who was the son-in-law of Mrs. Lusk, and held a general power of attorney from-her to manage her business, including the investment and reinvestment of her money. Tinstman was also treasurer of the Tri-State Mining & Manufacturing Company. He testified that he represented the company in the transaction and that the notes were not delivered to Mrs. Lusk until after the signatures of Alldred and the other directors had been placed on them. At the annual meeting of the company, January 11, 1904, the notes were indorsed by Alldred and by five other directors of the company. These directors consented to indorse the paper of the company in order to raise money for its benefit, and it was further agreed that they were to be ‘indemnified by a deed of trust to be given by the company. They did indorse a number of notes, including three to the order of Mrs. Lusk, two of which are the basis of the claim in this case. On May 10, 1904, the company executed and delivered a deed of trust to W. P. Keil of Pittsburg, for certain real and personal property therein described, which in fact included all the assets of the corporation. The deed recited that it was in trust, and for no other purpose than to secure the indorsers, for becoming security for the company, and for advancing money to it. Subsequently, by proceedings in Tazewell county, Virginia, where most of the company’s assets were, a receiver was appointed, at the instance of the directors, and the property of the company was sold under an order of court. The beneficiaries under the deed of trust waived their right to a preference in the distribution of the proceeds of this sale, in favor of the local creditors of the company. The sale appears to have realized no more than sufficient to satisfy the claims of those creditors. The entire property was purchased on behalf of certain stockholders of the company and was transferred to a new corporation, organized by the purchasers.

At the final hearing upon this claim, the court below, sitting in banc, held that under the facts shown, the indorsers had by their own action, become principals, and were therefore bound as such by their indorsements; and that although there was no proof of demand for payment having been made upon the company, the maker of the notes, or notice of dishonor given, yet under the circumstances, this was not necessary. We agree with the court below, that the indorsers should not now be permitted to rely upon the fact of nonpresentment, and the lack of notice of dishonor; for the reason that the indorsers were indemnified against loss by the deed of trust which they provided should be given to them by the company. Having accepted this security, and taken from the company all its assets, they put themselves in the place of the makers of the notes. Notice to them of nonpayment was not therefore necessary for their protection. In Kramer v. Sandford, 4 W. & S. 328, Chief Justice Gibson said, "An indorser is entitled to notice whenever it is necessary to protect him; for he is not presumed to have waived it to his detriment. It is useless to him, where he has taken a general assignment of the maker’s effects, and thus obtained, beforehand, all the advantage that his own or the indorsee’s vigilance could give him; and it has accordingly been held that he assumes the maker’s debt when he receives his means to pay'it. The chance of the maker’s acquirement of other property, to which he might resort if the fund in his hands should fall short, is so inconsiderable as to fall within the maxim de minimis. When the indorser, therefore, has got all which the maker possessed, he has got all which the law supposes can be of value to him.” That was the case here, for by its terms, the deed of trust conveyed to the directors, to secure them from liability as indorsers, “all the property of all kinds” of the company. In Barclay v. Weaver, 19 Pa. 396, Mr. Justice Lowbie said (p. 400): “Where the indorser is himself the real debtor, as in the case of accommodation notes and bills; or has taken an assignment of all the property of the maker as security for his indorsement; or where he can have no remedy against the maker; or in the case of the drawer of a bill of exchange, where the drawee is, and during the currency of the bill continues to be, without funds of the drawer; and in many other such cases, demand and notice are not necessary. . . . The reason is, that, in such cases, demand and notice can be of no use, and therefore the law does not require them.”

In Patton v. McFarlane, 3 P. & W. 419, it is pointed out (p. 425) that a demand upon the drawer and notice of nonpayment, to the indorser of a negotiable note “may be proved by showing that the indorser, before the note became payable, accepted from the drawer an assignment of his estate, for the purpose, inter alia, of indemnifying him against his indorsement; which in fact is neither a demand, nor yet notice of nonpayment; but in law has the same effect, as it renders.demand and notice unnecessary.”

In the form in which the notes are drawn, Mrs. Lusk is the payee, and would therefore of necessity be the first indorser. Prior to the Act of May 16, 1901, P. L. 194, known as the Negotiable Instruments Law, the indorsements of the directors would have been held irregular, and under a line of decisions, from Schafer v. Bank, 59 Pa. 144, down to Temple v. Baker, 125 Pa. 634, the indorsers would not have been liable to the payee. But the Negotiable Instruments Law, sec. 64, provides: “Where a person, not otherwise a party to an instrument, places thereon his signature in blank, before delivery, he is liable as indorser in accordance with the following rules: 1. If the instrument is payable to the order of a third person, he is liable to the payee and to all subsequent parties.” Upon the face of the transaction, this provision makes the indorsers liable to the payee, Mrs. Lusk, or her executor. Attention is called to the fact that liability is imposed under this section of the act only where the signature is added before delivery of the instrument, and it is contended that in the present case, the notes were not indorsed until after delivery. They were dated in June, 1903, and not indorsed until January 11, 1904. The only testimony as to the actual time of delivery seems to be that of Mr. Tinstman, who was an agent of the payee, but was also a director and treasurer of the company which made the notes, and he was also one of the indorsers. He testified that the notes were in his possession from the time they were executed until they were indorsed by the directors, and that they were not delivered to the payee until after they had been indorsed. This testimony was uncontradicted, and was sufficient to justify the court below in its conclusion that the notes were indorsed before delivery.

The assignments of error are overruled, and the decree of the orphans’ court is affirmed.


source: Caselaw Access Project

author: Mr. Justice Potter,

license: Public Domain

text:
    Alldred’s Estate
    (No. 2).

      Promissory notes — Indorsers—Indemnification of indorsers — Release of sureties.

    1. Where a corporation makes'a demand note to its own order, and the directors of the company indorse the note, which is delivered as collateral security for the payment of another note of the company, and subsequently the directors accept the benefit of a deed of trust of all the property of the corporation executed to secure them against loss as indorsers, and it appears that the property covered by the deed of trust was amply sufficient to secure them, they become principals and cannot be relieved of their liability as indorsers by claiming any privilege incident to the contract of indorsement.
    2. In such a case the consideration paid for the property covered by the deed of trust at forced sale made with a view towards reorganization, cannot be regarded as conclusive of its value, if it appears that it was purchased in the interest of the directors and stockholders, and at the reorganization made the basis of a largely increased capitalization.
    ' ’3. The indorsers on a demand note made by a corporation to its own order and delivered as collateral security to an indorser upon another note of the company cannot be relieved from liability because of' renewals of the second note, where there were no renewals or extensions of the note which they indorsed.
    Argued Oct. 18, 1910.
    Appeal, No. 16, Oct. T., 1910, by Emma A. Trautman and John Alldred, Executors, from decree of O. C. Allegheny Co., Sept. T., 1906, No. 117, awarding distribution in Estate of William H. Alldred.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    ■ Exceptions to adjudication. Before Hawkins, P. J.
    The opinion of the Supreme Court states the facts.

      Error assigned was decree awarding distribution to Third National Bank.

      Wm. E. Schoyer, of Lyon & Hunter, for appellant.
    The taking of the deed of trust of all assets of the TriState Company as security did not render the indorsers of the company’s paper primarily liable: Smith v. Steele’s Est., 26 Vt. 427; Home National Bank v. Waterman, 134 Ill. 461; Fay v. Tower, 58 Wis. 286; Phelps v. Walkey, 84 Iowa, 120; Rouse v. Bradford Banking Co., L. R. (1894) App. Cases, 586.
    January 3, 1911:

      James B. Sterrett, of Patterson, Sterrett & Acheson, for appellee.
    William Alldred and his coindorsers, being fully secured by having all the assets of the company in their possession, or under their control, were virtually principals, and no extension of time of payment would discharge his liability: Smith v. Steele’s Est., 25 Vt. 427; Brandt on Suretyship (3d ed.), sec. 383; Shrewsbury Savings Institution’s App., 94 Pa. 309; Warren v. Sennett, 4 Pa. 114; Bank v. Davis, 87 Mo. App. 242; Turner v. Stewart, 51 West Va. 493.
   Opinion by

Mr. Justice Potter,

In this appeal the executors of the will of William H. Alldred, deceased, contend that the orphans’ court erred in allowing a claim against the estate, presented by the Third National Bank, upon a promissory note indorsed by William H. Alldred. The note was dated May 11, 1904, was payable on demand, and was drawn by the Tri-State Mining & Manufacturing Company to its own order. It was indorsed by the company and by six of the directors, including William H. Alldred. Above the indorsement was written: “We do hereby waive protest on the within note and guarantee the payment of the same with interest.” No question arises in this case, as to demand for payment, or notice of dishonor; nor is the regularity of the indorsement questioned.

It appears from the testimony that this note was given to Peter Keil, as collateral security, to protect him in placing his indorsement upon another note of the company for a like amount known as the Hobson note. That note was discounted at the bank, and was frequently renewed; but no change was made in the collateral note. The facts with regard to a deed of trust, which was taken by the directors to indemnify themselves as indorsers for the Tri-State Mining & Manufacturing Company, were set forth in the decision just handed down in the appeal by the same executors from this same decree, as to the allowance of a claim upon two notes made by the same company, and indorsed in the same way, given to Mrs, E. E. Lusk. We there affirmed the decision of the orphans’ court holding that by reason of the indorsing directors having received the benefit of the deed of trust, they were to be regarded as principals.

It is hardly necessary here to discuss the question of the value of the indemnity taken by the directors. Admittedly they took into their hands for their own protection all the assets of the mining company. It is stated as a general principal in 27 Am. & Eng. Ency. of Law (2d ed.), 507: “A surety who holds indemnity or security from the principal is not discharged by an indulgence or extension which otherwise would have that effect. But if the indemnity proves to be of no value he is discharged.” The indemnity taken here was of very considerable value. The consideration paid for the property at forced sale made with a view towards reorganization, cannot be regarded as conclusive of its value; for it seems to have been purchased in the interest of the directors and stockholders of the company; and, after the reorganization, made the basis of a largely increased capitalization. We find nothing in the evidence to justify a conclusion that the real value of the property included in the deed of trust was not sufficient to fully indemnify the indorsers. On the contrary, it appears from the record of the proceedings in Virginia, offered in evidence, that in the bill in equity there filed, the directors of the Tri-State Mining & Manufacturing Company, including William H. All-dred, averred that the sum of $115,000 had been invested in the company’s mines and plant, that the corporation then owned in fee simple mining rights, with all timber and mining privileges on 308 acres of land, on which there lay large and valuable accessible mineral deposits of the finest quality, and that the company had booked and promised orders from which they expected to realize at a reasonable estimate, over $100,000. The findings of a commissioner fixed the total of indebtedness to Virginia creditors, and of the debts secured by the deed of trust, at about $51,600. We are clear that the orphans’ court was right in holding that the indorsers became in effect principals, and that the indemnity which they held prevented them from properly claiming the privilege which might be asserted, by a surety who was without indemnity.

The contention that Alldred, the surety in this case, was discharged from liability by reason of extensions of time given to the principal debtor, is not borne out by an examination of the evidence. The Tri-State Mining & Manufacturing Company was the maker and payee of the note in question. This note was never renewed and there is no evidence that any extension was ever given to the maker. It is payable on demand, and it does not appear that there has ever been a time since it was given when suit could not have been brought upon it against the maker. “The right to sue the principal is the test:” Brubaker v. Okeson, 36 Pa. 519. As was said in Campbell v. Floyd, 153 Pa. 84 (p. 94): “Mere forbearance, however prejudicial to the surety, will not release him: U. S. v. Simpson, 3 P. & W. 437. Nor will indulgence, accompanied by payment of interest by the debtor and a promise of punctuality in the future, have that effect, if the creditor’s hands are not tied: Johnston v. Thompson, 4 Watts, 446.”

It is true that the note of Hobson to the order of Keil, for which this note was held as collateral, had been renewed from time to time, but that had no effect upon the present note. Mr. Alldred, against whose estate the present claim is made, was not a party to the Hobson note, but this note was given to protect the parties to that note. We do not see that Alldred or his estate was in any way prejudiced by the renewals of the Hobson note.

The assignments of error are overruled, and the decree of the orphans’ court is affirmed.


author: Pee Ctjeiam,

text:
    Daughters of the American Revolution, Appellant, v. Pennsylvania Railroad Company.

      Deeds — Boundaries—Street—Vacation of street.

      ' Where the grantor in a deed describes one of the boundaries of the land as a street “as at present located by the city, of a width of sixty feet, but not yet opened,” and reserves to himself the exclusive-right to represent the land in all proceedings looking to the opening of the street thus described, and subsequently the city repeals the ordinance locating the street, the grantee in the deed has no interest or easement in the street, nor in the land within the line of the same as originally located, but never opened.
    Argued Oct. 18, 1910.
    Appeal, No. 22, Oct. T., 1910, by plaintiff, from decree of C. P. No. 3, Allegheny Co., Nov. T., 1904, No. 210, dismissing bill in equity in case of Daughters of the American Revolution of Allegheny County v. Pennsylvania Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, J.J.
    Affirmed.
    Bill in equity for an injunction.
    Kennedy, P. J., filed the following opinion:
    • The object of this bill is to enjoin the defendant company from obstructing, by building or otherwise, within its lines, O’Hara avenue, a street located by the city of Pittsburg but never opened, and the ordinance for the location of which was subsequently repealed.
    The material facts, which are undisputed, are -as follows, viz.:
    1. An ordinance of the city of Pittsburg, locating O’Hara avenue, sixty feet wide, from Water street to Sixth street, and running about midway between Penn avenue and Duquesne way, in said city, was approved October 9, 1892, a copy of which ordinance is attached to plaintiff’s bill. From Water street to Third street this avenue was located wholly on property then owned by Mrs. Mary E. Schenley, except where it crossed other open streets and alleys, and on it were a large number of buildings.
    2. The plaintiff is a corporation organized under the laws of Pennsylvania, for the purpose, as expressed in its charter, of maintaining private parks in Allegheny county, Pennsylvania, in which to preserve the blockhouse built by Colonel Bouquet, now in the first ward of the city of Pittsburg and other archaeological remains in said county, and for the purpose of perpetuating the historical associations surrounding the same, and promoting historical research.
    3. By deed of gift, dated March 15, 1894, duly executed, delivered and recorded, Mrs. Mary E. Schenley conveyed to the plaintiff certain property therein described, upon which is located the blockhouse mentioned in the second paragraph of plaintiff’s bill, for the purposes set forth in plaintiff’s charter, as stated in said deed, a copy of which is attached to plaintiff’s bill. In this said deed, the grantor, Mrs. Schenley, made the conveyance of the property known as the blockhouse property, subject to the right of herself to represent the said described ‘property in all proceedings looking to the opening of O’Hara avenue and the vacation of Fort street and Point alley, her purpose, as stated therein, being to retain and reserve and not part with the right to petition the city of Pitts-burg in behalf of said real estate to open said O’Hara avenue and to vacate said Fort street and Point alley; and stating also in said deed that she made the conveyance for the purposes of the corporation (plaintiff) named in the second finding above, “and for no other use or purpose whatever, the said Block House and premises to revert to the party of the first part thereto” (Mrs. Schenley) “and her heirs ipso facto upon the failure or neglect of the party of the second part” (plaintiff), “or its successors, to maintain and preserve them as aforesaid for the uses and purposes aforesaid.”

      4. An ordinance of the city of Pittsburg repealing the ordinance locating O’Hara avenue, as stated in the first finding above, was approved January 3, 1901. A copy of this repealing ordinance is attached to defendant’s answer.
    5. - The deed mentioned in the third finding above, described the land conveyed as bounded, inter alia, by O’Hara avenue, as then located by the city of Pittsburg, of a width of sixty feet, but not opened, and reserved to the grantor, Mrs. Schenley, the right to petition the city of Pittsburg in behalf of the land conveyed to open said O’Hara avenue and to vacate Fort street and Point alley, which also bounded the land conveyed, as well as the other reservations mentioned in the third finding above, and more fully set forth in the said deed. And said Fort street and Point alley were subsequently vacated by the city of Pittsburg.
    6. By deed dated February 12, 1902, duly executed and delivered and recorded, Mrs. Schenley conveyed to H. C. Frick, inter alia, the property situated in the First ward of the city of Pittsburg, bounded by Third street, Penn avenue, Water street and Duquesne way, including the blockhouse property, an interest in which had been heretofore conveyed to plaintiff, as stated in the third finding above; but “excepting and reserving from this conveyance such title and interest as she” (the party of the first part) “by deed dated March 15, 1894” (mentioned in the third finding above) “granted and conveyed to the Daughters of the American Revolution of Allegheny County, Pennsylvania” (the plaintiff) “in the following described lot or piece of ground, being included within the boundaries of the tract of land first above described,” and then giving a description of the blockhouse property as conveyed to the plaintiff by deed of March 15, 1894, mentioned in the third finding above: “but including in the said conveyance all the right, title and interest which she, the said Mrs. Schenley, may have in and to the property included, inter alia, in Fort street, Point alley and O’Hara street, for the vacation of which said streets and alleys ordinances have been passed by the councils of the City of Pittsburg and approved by the City Recorder.”
    7. By another deed, dated February 12, 1902, duly executed, delivered and recorded, Mrs. Sehenley conveyed to H. C. Frick the property known as the blockhouse property, as described in the third finding above, subject to the interest in said property which she, the said grantor, conveyed to the plaintiff by deed referred to in the third finding above, but conveying “the reservations, and all the right, title and interest of the grantor, Mrs. Sehenley, of, in and to the lot or piece of ground, to said H. C. Frick.”
    8. Subsequently, the said H. C. Frick, by deed duly executed and recorded, conveyed to the defendant in this bill, all the property, rights, etc., conveyed to him by the deeds referred to in the sixth and seventh findings above, and the defendant took the title to said property, etc., with knowledge only of the right of plaintiff as contained in said deeds, and without notice or knowledge of any alleged right or easement of the plaintiff in or over O’Hara avenue, unopened, and the ordinance for the opening of which had been repealed.
    9. The blockhouse property of plaintiff has now access to it by a twenty-foot strip of ground fronting on Penn avenue, conveyed to plaintiff by deed mentioned in the third finding above. Note: This was admitted by the plaintiff on the trial of this case.
    DISCUSSION.
    The plaintiff claims an easement of passage, sixty feet wide, from Third street to Water street, over what was formerly O’Hara avenue, as located by the city of Pitts-burg but never opened, and the ordinance for the location of which was subsequently, and before Mrs. Schenley conveyed to H. C. Frick, repealed. This claim is based, first, upon the language of Mrs. Schenley’s deed to the plaintiff, and also upon oral testimony and letters offered in evidence as tending to show Mrs. Schenley’s intentions; all of which were objected to by the defendant’s counsel. This oral testimony and these letters were admitted subject to these objections, their competency to be subsequently passed upon.
    We now find them to be incompetent and that they should be stricken out for two reasons:
    1. Mrs. Schenley’s intentions are to be gathered from her deed to the plaintiff, and all prior communications are merged in that deed.
    2. Defendant took title without any notice of these matters, none having been averred or proven.
    So that plaintiff’s claim must depend entirely on its deed from Mrs. Schenley. And in considering this, attention is called to certain dates:
    1. The ordinance locating O’Hara avenue was approved October 19, 1892.
    2. Mrs. Schenley’s deed to the plaintiff bears date March 15, 1894.
    3. The ordinance repealing the ordinance locating O’Hara avenue was approved January 3, 1901.
    4. The two conveyances made by Mrs. Schenley to H. C. Frick bear date February 12,1902; and subsequently H. C. Frick made his conveyance to the defendant.
    The ordinance locating O’Hara avenue, passed October 19, 1892, merely created a paper or plotted street, and was entirely the act of the city of Pittsburg, with which Mrs. Schenley had nothing whatever to do, and which street she never recognized as an existing or opened street. The deed of Mrs. Schenley to the plaintiff, which bears date March 15, 1894, was a deed of gift, and in the description of the property conveyed uses very accurate language in reference to the streets and avenues bounding the property, recognizing Penn avenue, First street, Third street and Fort street as existing streets, while as to O’Hara avenue the language is different, but quite as accurate and specific: “On the southerly side of O’Hara avenue as at present located by the City of Pittsburg, of a width of sixty feet, but not yet opened.”
    Attention also is called to the significant language used by Mrs. Schenley in the reservation in this deed to plaintiff. She reserves to herself the exclusive right to represent Fort street and Point alley in proceedings to vacate them, because they were at the time existing, opened streets; while as to O’Hara avenue, she reserves the exclusive right to represent the land in all proceedings looking to the opening of O’Hara avenue. There was nothing to vacate as to O’Hara avenue; hence the appropriateness of the language.
    Why this precise and unmistakable language with reference to O’Hara avenue? Plainly because she owned the balance of the property, and her buildings, of which there were a large number, were located within the lines of this projected street. Is it at all likely that Mrs. Schenley should have intended to convey to plaintiff, without any consideration, any right or control over this unopened street which would affect so vitally her other property? Her language show's that she intended the plaintiff, to whom she was giving the blockhouse property, should have no rights as to O’Hara avenue, which was an unopened street and might never be opened, and that instead of giving the plaintiff the right of an abutter, her purpose was to reserve such right exclusively to herself in case the street was ever opened.
    Easements granted by conveyances calling for a street as a boundary are based upon the ground of implied estoppel. The grantor in his deed declaring the existence of a street is estoppel to deny it; but in all such cases there must be a street corresponding with that described in the conveyance, and in all the cases cited by the plaintiff in which an easement was declared, created by such description, the instrument described the street as existing. This is not done here. Mrs. Schenley states that O’Hara avenue is only located by the city of Pittsburg, not by her, and is not yet opened and may never be opened; but in case there be proceedings for its opening, she reserves all right to represent the land in that proceeding. She says nothing about the repeal of its location, as that matter was wholly within the control of the city and this control was exercised when, on .January 3, 1901, the city passed its ordinance repealing the location of O’Hara avenue. O’Hara avenue never actually existed as a street, and its location was thus wiped out.
    Then followed, on February 12, 1902, the deeds of Mrs. Schenley to Mr. Frick, and later the conveyance of Mr. Frick to the defendant. In the deeds of Mrs. Schenley to Mr. Frick she uses the same careful and appropriate language with reference to O’Hara avenue as in the deed to plaintiff, and conveys to Mr. Frick not only the property, but all rights reserved in her deed to plaintiff; and there is nothing in them to sustain the plaintiff’s claim that a right to an easement was created. On the contrary, the language used by Mrs. Schenley and the circumstances attending the conveyances completely negative the implication of such a grant or creation. These positions are fully sustained by Bellinger v. Union Burial Ground Society, 10 Pa. 135, and Neely v. Phila., 212 Pa. 551.
    Our conclusions of law are:
    1. The plaintiff has no interest or easement in O’Hara avenue, or in the land within the lines of the same as originally located, but never opened.
    2. That this bill must be dismissed at plaintiff’s costs.
    Let a decree be drawn accordingly.

      Error assigned was the decree of the court dismissing the bill.

      Samuel A. Ammon, with him Edward B. Scull and A. M. Irnbrie, for appellant.
    Where a grantor of land bounds it by a street laid down upon a city map, as though said street were then an existing highway, though in part it is not opened as such, the grantee is entitled as against the grantor and his assigns to have the street kept open to its full width: White v. Tide Water Oil Co., 50 N. J. Eq. 1 (25 Atl. Repr. 199); Carroll v. Asbury, 28 Pa. Superior Ct. 354; Wickham v. Twaddell, 25 Pa. Superior Ct. 188.
    January 3, 1911:
    As between vendor and vendee, the description in the instrument of lands bounded on a highway is a dedication whether they be opened to public use or not: Paul v. Carver, 24 Pa. 207; Cox v. Freedley, 33 Pa. 124; Trutt v. Spotts, 87 Pa. 339; In re Lehigh St., 81* Pa. 85; Patterson v. Harlan, 124 Pa. 67; In re Brooklyn St., 118 Pa. 640; Dawson v. St. Paul Fire & Marine Ins. Co., 15 Minn. 136; Hawley v. Baltimore, 33 Md. 270; Hall v. Baltimore, 56 Md. 187; Booream v. Ry. Co., 40 N. J. Eq. 557 (5 Atl. Repr. 106).
    The repeal by the city of the ordinance locating O’Hara avenue was without effect on the rights of plaintiff: Hancock v. Phila., 175 Pa. 124; Plitt v. Cox, 43 Pa. 486; Black v. Ry. Co., 34 Pa. Superior Ct. 416; Saccone v. West End Trust Co., 224 Pa. 554.

      M. W. Acheson, Jr., of Patterson, Sterrett & Acheson, for appellee. — Neely v. Phila., 212 Pa. 551, and Bellinger v. Union Burial Ground Society, 10 Pa. 135, rule this cause for the appellee.
   Pee Ctjeiam,

The decree dismissing the plaintiff’s bill is affirmed on the opinion of the learned president judge of the common pleas.


author: Mr. Justice Stewart,

text:
    Snyder, Appellant, v. Erwin.

      Will — Probate—Undue influence — Meretricious relation — Evidence.
    1. Where a meretricious relation has been shown to have existed between a testator and the principal beneficiary under his will, and the will diverts the entire estate from the natural objects of the testator’s bounty, and gives it over to a married woman with whom adulterous commerce has been carried on, a presumption of fact arises that the will was procured by undue influence.
    2. A verdict of a jury against such a will will be sustained where in addition to the meretricious relation, it is shown that the man was seventy-five years of age, that the woman was persistent in following him to his different boarding places, in accompanying him to public places, in showering assiduous attentions upon him in various ways, and in sending him letters addressed in terms of dearest affection, and professing abiding love for him and him alone.
    Argued. Oct. 18, 1910.
    Appeal, No. 25, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., Second Term, 1909, No. 820, on verdict for defendant in case of Amanda Snyder v. Alice L. Erwin.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Issue devisavit vel non. Before Swearingen, P. J.
    The facts appear by the opinion of the Supreme Court.
    ■ Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in submitting the case to the jury.

      L. P. Monahan, with him John D. Brown, for appellant,
    cited: Alexander’s Est., 206 Pa. 47; Kane’s Est., 206 Pa. 204; Caughey v. Bridenbaugh, 208 Pa. 414; Robinson v. Robinson, 203 Pa. 400; Allshouse v. Kelly, 219 Pa. 652; South Side Trust Co. v. McGrew, 219 Pa. 606.

      R. T. M. McCready, for appellee,
    cited: Dean v. Negley, 41 Pa. 312.

      January 3, 1911:
   Opinion by

Mr. Justice Stewart,

This was an issue devisavit vel non, in which the jury found against the paper propounded as the last will of Charles S. Jenkins, on the ground that the same had been procured by undue influence. A general reference to the evidence from which the jury derived their conclusion will suffice. Charles S. Jenkins, at the time of the execution of the paper, was a man of about seventy-six years. He was then, and for years had been, a resident of Pitts-burg. He was twice married, but had been a widower for some years before his death. His only children were by his first wife, two daughters. One of them died in his lifetime, married, but without issue; the other survives, is married, and is the contestant in this proceeding. Upon the death of his second wife Charles S. Jenkins discontinued his home life and thereafter boarded. He had retired from business about 1901. About 1906 he went to the home of his daughter in Sewickley and resided with her for a year. He then returned to Pittsburg and found a new boarding house. Here he remained the better part of a year, when becoming somewhat enfeebled he was taken by the proponent, Mrs. Amanda Snyder and her husband, to their home in Pittsburg, where he continued to reside until his death June 7, 1908. The estate left is of the value of about $10,000. By the will in issue he gives to his daughter, the contestant, the sum of $5.00, and the entire balance of his estate to Mrs. Amanda Snyder the proponent. The first five assignments of error may be considered together, since they raise but the single question, whether there was sufficient evidence in the case to warrant a finding by the jury of undue influence in the procurement of the will. The verdict of the jury necessarily involves a finding that at the date of the execution of this paper the proponent was sustaining meretricious relations with Charles S. Jenkins. The issue with respect to this matter of fact was too squarely presented to be avoided; and as we read the evidence no different conclusion in regard to it was possible than that reached by the jury. The letters written by the proponent to Charles S. Jenkins and introduced in evidence, are so many unequivocal and unmistakable acknowledgments of the relation. Such of the letters as are admitted to be genuine, as well those which without acknowledging she would not distinctly repudiate, are equally incriminatory with those she disavowed. The evidence leaves the genuineness of none of them in doubt. It clearly appears that the unlawful relation thus established began several years before; that it existed at the making of the will, and that it continued thereafter. This fact, taken- in connection with the further fact that the will gives the entire estate to the proponent, to the exclusion of an only daughter against whom no other grievance existed than that she had declined to receive into her home the woman she believed to be her father’s •paramour, was evidence of an undue influence exerted by the proponent affecting the dispositions of the will, and ■ sufficient in itself to carry the case to the jury. For this we have express authority in Dean v. Negley, 41 Pa. 312, a case more closely resembling this in its facts than any to be found in our books. It is a mistake to suppose that the rule in that case has ever been departed from. Allshouse v. Kelly, 219 Pa. 652, and Chidester’s Est., 227 Pa. 560, cited by appellant’s counsel, are so wholly unlike the present case on the facts, that they are wholly inapplicable here, and nothing can be found in either of them that.in any way conflicts with the earlier case. Dean v. Negley announces no general rule applicable in all cases where a meretricious relation has been shown, but it does decide that when that meretricious relation has been shown, and the will diverts the entire estate from the natural objects of the testator’s bounty and gives it over to a married woman with whom adulterous commerce has been carried on, a presumption of fact arises, viz., that the will was procured by undue influence. And these were exactly the facts in this case. If there were nothing more in the evidence than what we have referred to, the case would have been for the jury, and we would be without disposition to disturb their verdict. But there was far more. There was evidence from which the jury might have found that proponent was present at the execution of the will; it clearly appeared that she was persistent in following this old man to his different boarding places, and in accompanying him to public places daytime and night; and that she was most assiduous in showering her attentions upon him in various ways, all so unbecoming in one who was the wife of another, as to suggest, now that the disposition of the estate is made known, a purpose that had relation to the framing of it. Then too in this connection, the letters offered in evidence, are of like significance. When a woman, the wife of a second husband and a grandmother, writes to a man of seventy-five years without family, with ample property, with whom she is carrying on adulterous commerce, and addresses him in terms of dearest affection, protesting abiding love for him and him alone, it is no strained inference that the actuating motive in her case is some other than the passion so ardently expressed. When the party so addressed, in full assurance of the sincerity of the protestations, replies in equally ardent terms, it is some evidence at least that the process of mental decay in his case had not simply begun, but had so far progressed as to render him pliable in the hands of a designing woman to such extent that he could readily be persuaded to accept her will for his own. There is abundant evidence in the case from which the jury could derive the weakened condition of mind in the one and the mercenary purpose in the other; and the case abounds in circumstances all tending to show that advantage was taken of the opportunity thus afforded. These circumstances do not call for further or fuller recital. It is only necessary to add that the case was submitted to the jury in a most clear and impartial charge, in which both the law and the evidence were fully and correctly stated. We have already said that the letters of the proponent were properly in evidence. The witness who testified as an expert to their genuineness had sufficient qualifications.

The assignments of error are overruled and the judgment is affirmed.


author: Mr. Justice Mestrezat,

text:
    Burns v. Pennsylvania Railroad Company, Appellant.

      Railroads — Condemnation proceedings — Evidence—Settlement of litigation.

    1. In a proceeding to assess damages for land condemned by a railroad company, it is improper to admit evidence to the effect that, after the land was taken and bond filed, an agent of the company offered to settle the litigation for an amount stated, as shown by a witness for the plaintiff and an unsigned agreement which had been prepared to carry out this settlement.
    2. In such a case where the plaintiff offers in evidence a deed from another person to the railroad company for lots adjacent to lots of the plaintiff, which had been condemned, and it appears that the consideration named in the deed was a lump sum which covered not only the lots named in the deed, but some additional land, included imthe deed the railroad company is entitled to show how the consideration was made up and what was paid for each of the lots, and what was paid for the additional land.
    Argued Oct. 18, 1910.
    Appeal, No. 32, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1905, No. 398, on verdict for plaintiff in case of Thomas Burns v. Pennsylvania Railroad Company.
    Before Fell, C. J., Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Reversed.
    Appeal from award of jury of view. Before MacfarLANE, J.
    At the trial, when plaintiff, Thomas Burns, was on the stand, the following question was asked him:
    “ Q. It was testified by Mr. Walter that he didn’t know whether he made you an offer about the time of this condemnation of $10,000 for the property. I will ask you whether or not he made you such an offer.”
    Mr. Crawford: Objected to generally as incompetent and irrelevant; and further for the reason that in view of the testimony adduced on cross-examination from Mr. Walter it would appear that he acted as broker or agent for the Pennsylvania Railroad Company in acquiring property in this immediate locality, and there is a presumption that if he negotiated with Mr. Burns or his attorney that it was with a view to a compromise of litigation.
    The Court: What date was it?
    Mr. Stoner: “Q. It was right at the time of the condemnation. I am unable to say whether before or after the condemnation.”
    Objection overruled and bill sealed for defendant.
    Question read to witness.
    Mr. Stoner: “Q. Answer yes or no. A. Yes, sir.” [3]
    When Joseph Stadtfeld was on the stand he was asked:
    “Q. Mr. Walter, a witness on the stand, testified that he did not make to counsel for Mr. Burns an offer of $11,000 for the property lots Nos. 604, 605, 610 and 611 in the Borough of Aspinwall. I will ask you whether he did or did not make you as counsel for Mr. Burns, such an offer.”
    Objected to that no time is specified, and if it was after the filing of the bond it would not be competent.
    Mr. Stoner: It was after the filing of the bond.
    Mr. Crawford: If it was after the filing of the bond it was for the purpose of making a settlement of litigation, and would be incompetent for that reason.
    Objection overruled and bill sealed for defendant. [4]
    “A. I don’t recall the numbers of the lots, but it was the property they appropriated in the condemnation proceedings. I can refresh my recollection as to the numbers of these lots by a paper which was sent up to me by Mr. Walter on November 16, 1903. They were lots 604, 605, 610, and 611. On November 16, 1903, Mr. Walter had made a proposition to pay Mr. Burns $11,000 and sent up an agreement to be executed by Mr. Burns. That agreement they sent up Mr. Burns declined — ”
    The Court: Never mind that.
    The following offer was made by plaintiff:
    Mr. Stoner: To rebut the testimony of Mr. Walter that he never made an offer to Mr. Burns or his counsel of the sum of $11,000 for the property in question, I offer in evidence an agreement unsigned, dated November 16, 1903, between Thomas Burns and Geo. L. Walter, being the agreement stated by Mr. Stadtfeld, the last witness, to be the one sent to him by Mr. Walter for execution.
    Mr. Crawford: Objected to, first, because the exhibit is merely an unexecuted paper. Second, because if any such agreement was in contemplation it was in settlement and compromise of litigation. Third, as being generally incompetent and irrelevant.
    Objection overruled and bill sealed for defendant. [5] The defendant made the following offer:
    Mr. Crawford: The deed from the Aspinwall Land Company to the Pennsylvania Railroad Company having been offered in evidence by plaintiff’s counsel, the defendant’s counsel offers to-prove how the consideration was made up and what was paid for each of the lots described in the said deed and for the river frontage described in said deed.
    Objected to as incompetent and irrelevant because they cannot undertake to correct the deed or to explain it; and further, because it was offered as part of the cross-examination of one of the defendant’s witnesses and for no other purpose.
    Mr. Stoner: I will correct that. It was offered in view of the question asked Mr. Wright as to the sale of lots 612 and 613 for $2,000 and he said that he knew differently.
    Objection sustained and bill sealed for defendant. [6] Defendant presented these points:
    1. That the jury will disregard the testimony of Joseph Stadtfeld as to the offer of purchase testified to have been made to him as attorney for plaintiff, after the beginning of this litigation between plaintiff and defendant, by George Walter, representing the defendant company. Answer: Refused. [1]
    January 3, 1911:
    2. That the testimony in the case as to the offer of compromise or settlement of this litigation by the purchase of the land in question from the plaintiff is stricken out and is not for your consideration. Answer: Refused. [2]
    Verdict and judgment for plaintiff for $15,280. Defendant appealed.

      Errors assigned were (1, 2) above instructions, quoting them; (3-6) rulings on evidence, quoting the bill of exceptions.

      James S. Crawford, of Patterson, Sterrett & Acheson, for appellant.

      W. W. Stoner, for appellee.
   Opinion by

Mr. Justice Mestrezat,

We will not sustain the third assignment of error. While we think it apparent that Mr. Walter was acting for the defendant company at the time he made the offers, yet it was the duty of the defendant’s counsel to elicit that fact clearly from the witness so as to disclose his incompetency. Walter’s preliminary examination having left in doubt whether he was acting for the company, we cannot convict the court of error in admitting the testimony complained of in this assignment.

Mr. Stadtfeld’s testimony was admitted under different circumstances. When it was offered the defendant’s counsel objected on the ground that a bond having been filed and the matter being in litigation, the testimony was incompetent. Before the witness was permitted to answer, it appeared by his testimony that a bond had been filed, and the property in question had been appropriated by the defendant company. It was, therefore, manifest that if an offer had been made to Mr. Stadtfeld as the plaintiff’s counsel, it was in compromise of the litigation. The property was not at the time open for purchase by any one except the defendant. But Mr.' Stadtfeld’s subsequent testimony disclosed clearly the fact that Mr. Walter was at the time representing the defendant, that the witness so understood the fact, and that the offer “was in settlement of litigation,” and “to dispose of the entire transaction.” The testimony was therefore clearly incompetent and should have been excluded. At the close of Mr. Stadtfeld’s testimony, the defendant’s counsel asked the court to instruct the jury to disregard it. The refusal, of this motion constitutes the first assignment of error. The admissioh of the testimony against the defendant’s objection is the subject of the fourth assignment.

It appears from Mr. Stadtfeld’s testimony that the unsigned agreement was to be executed by Mr. Walter as the reprsentative of the defendant company, and was in settlement of the plaintiff’s claim for damages against the company for the land appropriated by it. It was admitted in evidence subject to objection, and is embraced in the fifth assignment of error. The reason which excludes Mr. Stadtfeld’s testimony as to the offer having been made, also excludes the admission of the agreement. The agreement was merely to consummate the settlement of the claim for damages against the company.

The plaintiff offered in evidence a deed from the Aspinwall Land Company to the defendant company conveying several lots of ground in the grantor’s plan of lots adjacent to the lots taken by the defendant, and also a strip of land on the south side of River avenue and along the Allegheny river, “for the purpose of showing the consideration, and what was conveyed.” This offer was, of course, for the purpose of showing the price of the lots conveyed as evidence of the value of the lots taken by the defendant company in its condemnation proceedings. The consideration named in the deed was a lump sum. The deed itself did not show the consideration for the lots or for the strip' of land. The defendant, therefore, should have been permitted to show how the consideration was made up, and what was paid for the river frontage and each of the lots. This was the offer of the defendant and it should have been admitted. It was not an attempt to correct or explain the deed, but simply to explain the consideration, and to inform the jury what was paid for each of the several lots embraced in the deed. This testimony was necessary if the price of the lots conveyed by the Aspinwall company was to be of service to the jury in ascertaining the value of the lots condemned by the defendant company.

The first, fourth, fifth and sixth assignments of error are sustained, the judgment is reversed, and a venire facias is awarded.


author: Lowrie, J.

text:
    Amelia Smith’s Appeal.
    1. A devise of real and personal property to the testator’s children in equal shares, with a provision that, in case of the death of any of them without issue, his or her share shall be equally divided among the survivors, passes an estate tail in the land to the first takers with vested remainders over in fee, and the absolute title to the personal property.
    2. The widow of a tenant in tail who dies without issue is entitled to her statutory dower of one-half of the land during her life.
    3. In the construction of wills, the law, in doubtful cases, leans in favor of an absolute rather than a defeasible estate; Of a vested rather than a contingent one; of the primary rather than the secondary intent; of the first rather than the second taker as the principal object of the testator’s bounty; and of a distribution as nearly conformed to the general rules of inheritance as possible.
    Appeal from the decree of the Orphans’ Court of Philadelphia, in relation to the distribution of the estate of Mrs. Matilda W. Smith. She died in 1848, leaving ten children surviving her, and leaving a will, of which the following is the material clause:—
    “ I will and bequeath all my property, real and personal, to my children (except my daughter Letitia, who is otherwise amply provided for), to be equally divided among them. In case of the death of any of my children without issue, his, her, or their portion or portions to be equally divided among the survivors. I hereby appoint my sons William, Harrison, and John my executors, and request them to dispose of my estate as above directed.”

      Her son John died in 1849 without issue, and leaving the appellant, his widow, who administered upon his estate. The amount for distribution is $53,881, consisting of proceeds of personal property, and income of the real estate. The claim of John’s widow to a share in the distribution was rejected, and hence this appeal.

      B. BrinhU, for appellant.

      Me Call, for appellees.
   The opinion of the Court was delivered by

Lowrie, J.

We lose no material word or idea of this will when we say, that by it the testatrix gives all her real and personal estate to her children in equal shares, and provides that, in case of the death of any of them without issue, his or her portion shall be equally divided among the survivors. What estate did each child take under the will ? It is very clear that each took an estate tail in the land as in the cases of Lapsley v. Lapsley, 9 State R. 130, and Eichelberger v. Barnitz, 9 Watts 447, and that of course was John’s estate.

What, then, is the right of his widow? At common law a widow is entitled to dower out of any estate of inheritance of her husband, fee simple or fee tail, to which her issue might have been heir; and, under our law, the widow of a man dying without issue is entitled to one-half of his real estate during life. That is, in estates out of which she would before have been entitled to common law dower, she is now entitled to what may be called statutory dower, Hence it follows, that the appellant is entitled, during life, to the undivided half of the real estate devised in tail to her late husband.

Now as to the personal property. Let it be noticed that the legacy is in its terms absolute, and that it is qualified only by the bequest over on his death without issue. But these are words of entailment, and therefore, when applied to personal estate, they pass the absolute property: 1 Meriv. 20; 3 Id. 176; 2 Keene 57; 2 Bro. C. C. 33; 3 Ves. Jr. 99; 17 Id. 479; 19 Id. 73; 1 Edw. 157. A different construction is usually put upon the phrase “dying without leaving issue,” when applied to personal property: 2 Rop. on Leg. 1551.

It is a general, not to say a universal rule, that words which, when applied to land, would create an estate tail, will,, when applied to chattels, pass the entire interest. How can it be otherwise ? Chattels cannot be inherited. They pass to one set of representatives, and land to another. The personal representatives cannot take land by descent, nor the real representatives, chattels. A devise of land to a man and his issue is therefore good; hut of chattels it is, prima facie, bad as to the issue; for that word, unexplained, must be taken in its technical sense, as a word of limitation, and not of purchase.

There is nothing in this devise to take it out of the general rule. Not one word indicates an intention to limit the interest of the first takers to a life estate. It is not the profits that are to be ■ paid to them. No trustees are appointed to take charge of the fund. But executors are appointed to settle up the estate and “dispose” of it as directed, that is, to “divide” it among the children.

To construe it a life estate in the first takers, would be to prefer the second takers, who are unknown, to the first, who are known, contrary to the rule which prefers the primary to the secondary objects of the testator’s bounty. It would be giving a life estate in chattels, which some of the legatees might never be able to enjoy, because of their inability to give adequate security. In cases of doubtful construction the law leans in favor of an absolute, rather than a defeasible estate; of a vested, rather than a contingent one; of the primary, rather than the secondary intent; of the first, rather than the second taker, as the principal object of the testator’s bounty; and of a distribution as nearly conformed to the general rules of inheritance as possible. If this case were doubtful on the words of the will, these considerations would rule. it. But it is not doubtful. John, on the death of his mother, took a vested absolute title to one-ninth of her personal property, and on his death his administratrix became substituted to his right.

Decree. — This cause came on for hearing on the appeal of Amelia Smith from the decree of the Orphans’ Court of Philadelphia county, in the distribution of the funds in the hands of William W. Smith and Harrison Smith, executors of Matilda W. Smith, decéased, and was argued by counsel, and thereupon, on consideration thereof, it is adjudged and decreed that the decree of the said Orphans’ Court in the premises be reversed and set aside, and this Court, now proceeding to make such decree therein as the said Orphans’ Court ought to have made, do decree and declare that, under the last will of Matilda W. Smith, her son John Gr. Smith and the other devisees acquired a fee tail title as tenants in common to the land thereby devised, and an absolute title, to the personal estate; that, on the death of the said John, his widow Amelia became entitled to a life estate in one-half of his share of the real estate, and that, subject hereto, his said share goes over as a vested remainder in fee to the surviving devisees; and that his share of the personal estate passed to his administratrix, to be accounted for and distributed by her according to law. And it is now here ordered that the account of the said executors of Matilda W. Smith be referred to John K. Findlay, Esq., as auditor, with directions to proceed without delay, and report to this Court the shares of the several devisees and legatees of the fund in Court, in accordance with the foregoing part of this decree, first deducting thereout the costs of this proceeding.


author: Black, C. J.

text:
    McFadden versus The Commonwealth.
    1. Until the jury in a capital ease are sworn, they may be discharged by the Court and the case continued.
    2. A criminal trial does not begin till the jury is empannelled and sworn; and the party charged is not in jeopardy till that time.
    3. On an indictment for murder, eleven jurors were empannelled, when, the panel being exhausted, a tales was awarded. After its return, the Commonwealth’s counsel challenged for cause the tenth juror empannelled, and the juror was discharged, the prisoner’s counsel objecting. Another juror was then called, in whose selection the prisoner declined to participate. He was empannelled; but before another juror was called or any of the jurors were sworn, on motion of the Commonwealth’s counsel the jurors empannelled were discharged and the case continued. At the next term the prisoner was arraigned, and judgment being given against him on his special pleas to the former proceeding, he refusing to plead further, the plea of not guilty was entered by direction of the Court, and he was convicted of murder in the second degree. Held, that he had not been in jeopardy in thefirst proceeding.
    4. A challenge may be made on the part of the Commonwealth at any time before the oath is tendered to the juror; and the mere passing of the juror by the District Attorney over to the party charged or his counsel is no waiver of the right of challenge on the part of the Commonwealth.
    5. Though a juror challenged for defect of religious belief may be heard by the Court in reply, yet it is not a ground of error that he was not so heard, it not appearing that he offered to testify.
    6. It is a good cause of challenge to a juror that when on a jury in another case at the same term, he said he was “ a Tom Paine man, and would as lief swear on a spelling book as on a Bibleand that on a former occasion while a member of the panel of jurors, he had said that he had tried to acquit any one the judge desired to have convicted.
    Error to the Court of Oyer and Terminer of the county of Philadelphia.

    A bill of indictment for murder was found against James McFadden, on 1st December, 1851. On 19th January, 1852, the plea of not guilty being entered, the case was proceeded with. Each juror, on being called, was challenged for cause, by the Commonwealth; was examined upon oath or affirmation, sur voir

      dire; and, according to Ms answer, he was either set aside for the cause shown, or, the challenge being withdrawn or overruled, he was submitted to the prisoner, for either choice or peremptory challenge. Some jurors were challenged peremptorily by the prisoner, some set aside for cause, and eleven were thus chosen, when, the panel being exhausted, the District Attorney prayed a tales de eomitatu, which was awarded, returnable at three, P. M., until which hour the Court adjourned. At the opening of the Court in the afternoon, the writ of tales was returned by the sheriff; when the District Attorney ashed leave to challenge one of the empannelled jurors (the tenth) for cause, which the Court permitted; and, after examining witnesses to sustain the alleged cause, the Court sustained the challenge, and the juror was dismissed. This was done against the prisoner’s consent.
    The cause of challenge which was assigned to the tenth juror, was “ the misconduct of the juror on a previous occasion, in another case, in quarrelling with his fellow jurors, and saying that he did not mind the Court, and did not care for the Bible any more than for a spelling book.” The challenge was objected to by the prisoner’s counsel. Testimony, in support of the challenge, by one witness was, that he was a juror with the person challenged, on the trial referred to, at the term of the Court then existing; that the jury were out all night — that in the morning, the said person took up the Bible, and said that he was “ a Tom Paine man, and would as lief swear on a spelling book as on that.”
    Another witness testified that the person then challenged was a juror in this Court about a year before; and on that occasion he had said to the witness that he had tried to acquit any one the judge desired to have convicted.
    The Court sustained the challenge, and the challenged person was discharged.
    The deputy sheriff then proceeded to call from the special venire and called Robert Steen, who was challenged by the Commonwealth for cause, and being sworn on his voir dire, was examined, and the challenge was withdrawn. The defendant, on being referred to as to the juror last called, stood mute, and the juror was empannelled.
    Thereupon, on motion of the District Attorney, the Court, without the consent and against the will of the prisoner, dismissed the jurors empannelled, and the case at that time ended. The jurors had not been sworn or affirmed severally in the case.
    At the next succeeding term, the indictment was ordered for trial, when the prisoner’s counsel preferred certain special pleas, in which the facts before stated were in substance alleged. A replication was made denying their sufficiency because' the jurors had not been sworn. A demurrer was filed, and the Court gave judgment for the Commonwealth. The prisoner stood mute as to other pleas. The Court had the plea of “ not guilty” entered, and the prisoner was convicted of murder in the second degree. Reasons in arrest of judgment were filed, which were overruled, and the prisoner was sentenced to imprisonment.
    It was assigned for error, 1. The Court erred in giving judgment for the Commonwealth upon the defendant’s demurrer. 2. In discharging the empannelled juror, against the prisoner’s consent. 3. In dismissing the empannelled jurors, and continuing the case, against the prisoner’s consent. 4. In permitting the prisoner to be tried a second time, he having been previously put in jeopardy of life and limb for the same offence.

      Webster and Phillips, for plaintiff in error.
    By the 153d section of the Act of 14th April, 1834, every person arraigned for murder or any other felony, is entitled to twenty peremptory challenges; while, by the 154th section, the Commonwealth is not to challenge without cause.

    It was suggested whether it was not the duty of the Court to inquire of the juror and ascertain the state of his moral or religious feeling: 2 W. & Ser. 262, Cubbison v. McCreary; 4 Whar. 334, Quinn v. Crowell; 1 Greenleaf, sec. 369 & note; 4th sec., 9th Art. of the Constitution of Pennsylvania.
    It was further contended that it was too late to dismiss the juror or discharge the juror after a tales had been awarded and returned. The tales was awarded to “fill up” the jury. In opposition to the discharge, reference was made to the case of Commonwealth v. Cook, 6 Ser. & R. 577; Commonwealth v. Clue, 3 Rawle 498; Dunn v. Commonwealth, 6 Barr 384; Peiffer v. Commonwealth, 3 Harris 468; Doebler v. Commonwealth, 3 Ser. & R. 237. Though the jurors empannelled were not sworn, the prisoner was in the power of the Commonwealth for trial. There must be a necessity for a discharge of the jury to authorize it: 2 Grat. 567, Williams v. Commonwealth. If the jury in a capital case separate without returning a verdict, the prisoner shall not be again tried for that offence: State v. Garrigues, 1 Haywood 241; 1 Inst. 227; 6 Missouri Rep. 644, The State v. Spear. It was said that the danger and peril of a verdict do not relate to a verdict rendered; that where the jury are empannelled and the indict-, ment not defective, the life of the prisoner is in peril and jeopardy : 1 Chitty’s Criminal Law 63.

      Reed, District Attorney, contrá.
    July 25, 1853,
   The opinion of the Court was delivered, by

Black, C. J.

The defendant was indicted for murder, and, being found guilty of murder of the second degree, was sentenced to undergo an imprisonment in the Eastern Penitentiary.

On the trial in the Court of Oyer and Terminer, the prisoner pleaded that he had once before been in jeopardy of life for the same supposed offence, and that he had been acquitted. He set ■forth in his several pleas the particular facts as follows: — He had been arraigned before the same Court, on the same indictment, at a previous term, and pleaded not guilty. A jury was thereupon called; eleven jurors were chosen, and all the rest of the pannel challenged or set aside. A tales was awarded, but before the selection proceeded any farther, and before any of the jurors were sworn, the District Attorney claimed the right to challenge (for cause) one of those already chosen. The Court permitted the cause to be shown, and sustained the challenge. When the twelfth juror was called, the prisoner refused to take any part in the selection; and the Court, on the motion of the District Attorney, dismissed the jurors, and postponed the trial to the following term.

To these pleas the Commonwealth replied that no one of the jurors had been sworn before they were dismissed; and, therefore, the prisoner was not acquitted or in jeopardy. To which replication the prisoner demurred.

The judgment of the Court on the demurrer, was against the prisoner, who, when called on to plead over, stood mute. The plea of not guilty was put in for him, and the trial proceeded with the result already mentioned.

If it can be legally said of the prisoner, that the proceedings at the first term after the indictment was found placed him in jeopardy, the subsequent conviction was wrong and should be reversed. Neither the constitution nor the , rules of the common law will permit a man to be twice tried for the same offence.

It seems unnecessary to say that the mere continuance of a cause is within the discretion of the Court. Refusing it to a prisoner when he gives good reasons for it, or granting it to the Commonwealth without any reason at all, is neither a defence to the accused party when he comes to be tried, nor a legal assignment of error in this Court. But a discharge of the jury, in a capital case, after the trial has begun, is not a continuance of the cause. It is the end of it. And for all purposes of future protection, it is the same to the prisoner as an acquittal, unless it was done with his own consent or demanded by some overwhelming necessity: such, for instance, as the sickness or death of a juror.

When-does the trial begin? Not properly until the jury is charged with the prisoner. But the practice of formally charging the jury is not generally observed in the Courts of this, state,-and ■we cannot refuse to a party any of the rights which ho would otherwise have, merely because a form is omitted by the public officers. We must, therefore, hold that the jury has the prisoner in charge, when a full jury is empannelled, and all the jurors are sworn. Previous to this, everything that is done is merely preliminary, and up to this point the Court may postpone the trial as lawfully at one stage of the proceedings as at another.

To place a man in jeopardy, he must be in peril from the verdict of a particular jury. He cannot be so by the calling of eleven, for they can give no verdict, nor is he endangered by twelve unless they are sworn. Until they have taken the oath they are not jurors, and have no more control of his fate than any other equal number of citizens. His trial cannot begin until the tribunal which is to try him is organized and qualified. If he is in jeopardy at any earlier period, he is in jeopardy from the hour when the first informal accusation was made, and at every step of the subsequent proceedings against him. To say this, would be to assert what no ingenuity can reconcile with either authority or reason.

The prisoner’s counsel cite The Commonwealth v. Clue, 3 Rawle 498, and rely much on a dictum of Chief Justice Gribson, who says: “In the legal as well as the popular sense, he (the prisoner) is in jeopardy the moment he is called to stand on his defence, for from that moment every movement of the Commonwealth is an attack upon his life.” I call this a dictum, because the question before the Court was, whether a prisoner was in jeopardy whose jury had been discharged without giving a verdict after they were sworn. It was decided in the affirmative, and the case is authority for nothing more. But allowing this expression all the weight to which it would be entitled if it were on the point in controversy, what does it come to ? At what moment of time is the prisoner called to stand on his defence ? Certainly not until the Commonwealth is ready to begin the assault. The judge was using a figure borrowed from the battel; and the phrase “jeopardy of life or limb” was also used originally with reference to that mode of trial. In judicial combat, the parties took their attitudes of attack and defence when the judg'es were set, and, all preliminaries being adjusted, the actual conflict was ordered to commence. If this analogy has anything in it worth noticing, it is against the plaintiff in error. This decides the whole cause. Our duty is done when we determine whether the facts pleaded amount to a defence.

But the challenge of a juror after the District Attorney had waived his right, is complained of by the prisoner’s counsel as a grievous wrong, while the District Attorney asserts, with equal confidence, that it is a great right. Both have argued it fully, and asked us to give' our opinion. We will do so.

The right of the Commonwealth and that of the prisoner to challenge for cause stand upon the same ground. One is as sacred as the other. It cannot be exercised after the juror has lifted up his right hand, or taken the book in obedience to the directions of the officer, or after the formula of the affirmation has been commenced. In some of the states it is held that the juror is not beyond the reach of a challenge even when he is sworn. These decisions are not supported by reasons satisfactory to us, and are opposed by certain principles which are well settled here. But the mere passing of the juror over to the Court or the other party, is not an absolute waiver of the right to challenge, if good cause be shown afterwards. This powrer to challenge for cause at any time before the oath is tendered might be abused. If the objection to a juror be kept back at the regular time for an improper reason, or from motives of mere caprice, it would be just enough to' declare the ■ right wholly waived, and the discretionary power to do so ought not to be denied. But instances of such bad faith are likely to be very rare; and submitting a cause to the determination of one who is known beforehand to be partial, corrupt, or incompetent, is so revolting to every sense of right, that no Court can do it without making a struggle to prevent it. When it is proved against a juror by his own admission that he grossly misbehaved himself on a former occasion, declaring that he had tried to acquit every one whom the judge desired to convict, and would as lief swear on a spelling book as a Bible, because he was a Tom Paine man, we can see nothing wrong in sustaining the challenge. It would destroy all confidence in the administration of justice if the most important criminal causes should have to be submitted to men who avow themselves reckless of both human and divine laws. There is no stress of necessity which drives us to that: there is still a sufficient number of “ good, true, honest, and lawful men” for jurors. When a witness is objected to for defect of religious principle, the rule is to let hirq speak for himself, and if he professes faith enough to give a religious sanction to his oath, his testimony is taken. The courts incline against the total exclusion of evidence oil such grounds, because it seals up what is perhaps the only source of information. The choice is very often between a doubtful witness and none. It is, therefore, safer to let the objection go to his credit. But there are no such reasons for tenderness in the case of a juror, where the worst consequence that results from his rejection, is that his place will be filled by a better man. To be sure a juror, like every other person publicly assailed, ought to be heard in vindication of his character, and I suppose an appeal to the Court on that ground would hardly ever be made in vain. But in this case the Court decided after hearing all that was offered. And they decided rightly.

Judgment affirmed.


author: Lewis, J.

text:
    Ghegan versus Young.
    1. An action of debt by a landlord against a tenant for rent,being founded upon the actual enjoyment of the premises, an assignment by the lessee to another, -with the assent of the landlord, would be a defence in such an action ; but where the action is not founded on the privity of estate but on the lease itself and the covenants qr promises contained in it, an assignment of the term by the lessee even with the assent of the landlord does not discharge the lessee from his express contract to pay rent, even though the landlord received some rent from the assignee, no discharge of the lessees from their contract appearing.
    2. Whether the landlord in an action of assumpsit against his lessees under a written lease, wherein the rent was payable quarterly, could recover rent for a fractional part of a quarter averred in the statement to be due on the day on which the possession was delivered to new tenants (who were recognised by the landlord,) and not denied in the affidavit of defence, notwithstanding which the Court below entered judgment for the plaintiff, was not decided by this Court.
    Error to the District Court, Philadelphia.

    This was an action of assumpsit, by William J. Young v. George Ghegan and Charles Gilbert, to recover two quarters’ rent, due respectively on June 1 and September 1, 1852, and also for forty-five days’ rent thereafter, under a written lease dated June 1, 1847, a copy of which it was stated was filed in the Court’ below, whereby the plaintiff let for the purposes of a foundry, pattern, blacksmith, and finishing shop, the premises known as the Weccacoe Foundry, to the defendants below for ten years, together with the “ appurtenances, machinery, tools, flasks, patterns, annealing oven, lathes, and steam-engine, and all and every article appertaining thereto.” The lessees agreed to pay therefor the yearly rent of $600 quarterly, on the first days of March, June, September, and December.
    The forty-five days’ rent was claimed for a period from the last quarter day to the day on which the lessees gave up the possession of the premises, which was accepted by the lessor. A statement of the amount of rent due the lessor was filed after a copy of the lease, and before the first affidavit of defence was made.
    An affidavit of defence was filed by Charles Gilbert; and at the suggestion of the Court, a supplementary affidavit, in which the following facts, in effect, were stated, viz. That after the lease was made and delivered, Gilbert sold out to George Ghegan, who was recognised by .the plaintiff below as tenant. That Ghegan afterwards went into partnership with one Bickley, and that the said plaintiff received the said Ghegan & Bickley as tenants. When the premises were surrendered to and accepted by plaintiff, there were upon them a boiler, platform scales, and other articles, put there and paid for by Gilbert & Ghegan, which the plaintiff retains and refuses to give up, and that they exceed in value the rent claimed in this suit. That Gilbert withdrew from the partnership with Ghegan, and that Bickley took his. place under the name and firm of Ghegan & Bickley. That the plaintiff received them as tenants instead of the lessees, who surrendered possession to the new tenants, and that plaintiff took rent from them as his tenants, and as due from them. That the articles retained by the plaintiff were not attached to the freehold, but were personal property. The Court below entered judgment for plaintiff, for want of a sufficient affidavit of defence.
    It was assigned for error, 1. The Court erred in entering judgment for the plaintiff below. 2. That the assessment of damages was erroneous and excessive.

      H. M. Phillips, for plaintiffs in error.
    It was contended that if an agreement existed between landlord and tenant, to the effect that another tenant be substituted in his place, who was accordingly substituted, this would be a sufficient surrender to determine the tenancy: 2 Stark. 235, Stone v. Whiting; 2 Barn. & Ald. 119, Thomas v. Cook; 1 Cr. & M. 188.
    It was also contended that the plaintiff could not recover rent for the fractional part of a quarter; that in all cuses of periodical payments, accruing at intervals, and not de die in diem, there can be no apportionment: 2 Ed. Ch. R. 379, Clapp v. Astor; 2 Ves. Sen. 672, Wilson v. Harman; Ambler 279 ; 3 Brown C. C. 101; 8 Missouri 213, Garvey v. Dobbyns, where it was held that where rent reserved in a lease is made payable quarterly, no part of the quarter’s rent becomes due until the end of the quarter.

      McAllister and Cf. W. Biddle, for the defendant in error.
    Neither the affidavit, nor its supplement, disclose any agreement on the part of the landlord to discharge the lessee, Gilbert, from his agreement to pay rent. A surrender of possession by the old tenants to the landlord is not averred; but merely a transfer of interest from them to the new occupiers of the property, which, though in the supplemental affidavit styled a surrender, is merely an assignment of the lease by the original lessees. The only act of recognition of the new occupiers is "the taking of rent from them; and it is settled that this does not operate as a discharge of the original lessee: Graham v. Whichelo, 3 Tyrwhitt’s Ex. Rep. 201.
    The privity of contract between the original lessor and lessee is not destroyed without an eviction, a release, or a surrender : Fisher v. Milliken, 8 Barr 111, and remarks of Gibson, C. J., at the foot of 120.
    Nothing is said in the argument as to the right to set off the articles alleged to have been left upon the premises. It was alleged that as between landlord and tenant, fixtures erected by the latter and which he is entitled to remove, must be removed during the term.
    As to the fractional part of the quarter, it was said that, as the surrender was a termination of the lease by operation of law, the lessees should pay rent for such time as they enjoyed the premises during it. A remittitur may be entered for the excess, if required: 5 W. & Ser. 21, McCaraher v. Commonwealth.
   The opinion of the Court was delivered by'

Lewis, J.

This is an action by a landlord against his lessees, on the contract, for the recovery of rent. A copy of the lease is said to have been filed, but as it is not on the paper-book we know nothing of its terms. As the action is in trespass on the case, and not in covenant, we infer that the lease is not under seal. There is a distinction between an action of debt for rent, and an action of assumpsit or covenant. The former being founded upon the actual enjoyment of the promises, an assignment by. the lessee to another, with the assent of the landlord, would be a defence. But where the action is not founded on the privity of estate, but on the lease itself, and the covenants or promises contained in it, an assignment of the term by the lessee, even with the assent of the landlord, does not discharge the. lessee from his express contract to pay rent. In Fisher v. Milliken, 8 Barr 120, it was remarked by Chief Justice Gibson, that it has been held in a countless number of cases collected in Comyn on Landlord and Tenant 275, that the tenant is bound by a covenant to pay the rent, though he assign his lease with his landlord’s assent, and though the latter accept the assignee for his tenant, and receive rent from him.” It must be remembered that a lessee is under two sorts of obligations to his landlord — one arising from privity of estate, which may be discharged by an assignment of his term with the assent of his lessor —the other in respect to the terms and engagements in his lease, bj privity of contract, which is, as we have seen, not affected in any way by an assignment of the term. The assignment of the term, and the acceptance of the assignee as tenant, instead of the lessee, discharges the latter from all obligations arising from privity of estate, but is not a discharge from the express contract contained in the lease: Comyn on Landlord and Tenant 275; 8 East 314; 4 Term Rep. 94. From these principles it is plain that the affidavits disclose no defence whatever to the action. The first affidavit of the lessee stating his own assignment to Ghegan, the recognition of Ghegan, as tenant, by the landlord — the subsequent partnership between Ghegan and Bickley, and the recognition of them as tenants of the property, contains no intimation whatever that the landlord had discharged the lessees from their express contract to pay the rent. The second affidavit is no better in this respect. After attention had evidently been called to the defects of the first, there is still a failure to supply them. It is true the lessee goes so far, under the pressure of the exigency, as to say that the plaintiff received the said Ghegan & Bickley as tenants, instead of the lessees, who surrendered the possession to the new tenants — but he immediately adds (“that is to say, deponent gave up his place to Bickley), plaintiff took rent from them, as tenants, and as due from them.” So that the alleged surrender is nothing more than an assignment, and the acceptance of the assignees as tenants, instead of the lessees, consists of nothing more than the acceptance of rent from them. So far as they paid rent, it was of course a payment pro tanto of the money for which the defendants below were bound by their contract. But it is idle to rely upon such a transaction as amounting to a release from an express contract.

Thus far a majority of the Court concur. But we are equally divided upon the question whether the plaintiff can recover $75 for the 45 days’ rent, claimed in his statement to be due on the 16th October, 1852. Two of the judges are of opinion that, as the averment in the statement that that sum was due on the said day, is not denied in the affidavit, it is fair to consider it as the admitted amount due at the time of the assignment of the lease. Therefore they think that judgment was properly entered for the sum thus admitted to be due. But two of the judges are of a contrary opinion. The Court being equally divided on this point, the whole judgment stands as rendered by the District Court.

Judgment affirmed.


author: Knox, J.

text:
    Drexel & Co. versus Raimond.
    1. 'Where an agent receives money and gives due notice to his principal, he cannot be sued for it without a previous demand, as he is in no default; but if he neglects to give notice of its receipt, an action lies without a previous demand.
    2. Brokers received a draft for collection, and after a reasonable time for its collection had elapsed, a suit was brought against them for the amount of the draft. Held, that a demand previous to instituting suit was not necessary.
    Error to the District Court of Philadelphia.

    F. X. Raimond brought an action of assumpsit against Drexel & Co., who were bankers and brokers, founded on their receipt as follows:—

      Philadelphia, March 9th, 1850.
    Received of F. X. Raimond for collection, draft of C. L. Jones, due 15 days, payable at Lewistown, Pa., for one hundred and fifty
    dollars, subject to a charge of-per cent.
    $150. Signed, Drexel & Co.
    The narr. was in assumpsit, and it was averred that the defendants to collect the draft, or any part thereof, in a diligent manner, have neglected and refused, and still neglect and refuse, &c.
    After showing the receipt, it was further proved that sufficient time had elapsed before bringing suit, to have collected the money; and this constituted all of the plaintiff’s evidence.
    On the part of the defendants it was testified, that “parties leaving drafts with the defendants for collection, always presented their receipts for payment;” and that the party obtaining this receipt had been dealing with the defendants, from which his .knowledge of the custom might bo inferred. The Court was asked to charge, that “ the plaintiff having failed to prove a demand on the defendants, he cannot recover.” The judge refused to charge the jury, that a demand was necessary, but charged to the contrary, reserving the questions for the consideration of the Court, which subsequently gave judgment for the plaintiff, upon the verdict.
    The opinion of the Court below was to the effect that this was not a gratuitous bailment — if it had been, a demand before suit would have been necessary; but it was an agency for hire, and that it was an implied undertaking that an agent for collection should not only take prompt measures to collect the draft, but keep the party employing him informed of all that occurs to affect his interest. The case of Wingate v. The Mechanics’ Bank, 10 Barr 104, was referred to as sustaining this decision. The rule for a new trial was discharged, and judgment rendered for plaintiff. Such judgment was assigned for error.

      H. M. Phillips, for plaintiffs in error.
    It was contended that in a case like this a demand previous to suit was necessary. If the defendants were liable without demand, because they did not seek the depositor and pay him, so a bank must be liable for the proceeds of notes deposited without a previous demand. The allegation was that the defendants undertook to collect the draft and pay the amount to the plaintiff, and had refused to collect it; but of such refusal, it was said that no proof was given at the trial. An attorney is not liable to his client for money collected until after demand made, unless there be special circumstances dispensing with the necessity therefor. In this case the custom was to present receipts and demand payment. The case of Johnson v. Farmers’ Bank, 1 Harr. 117, Downes v. Phœnix Bank, 6 Hill

      (S. C.) 297, Watson v. Phœnix Bank, 8 Metcalf 217, were cited to the effect that “ an action cannot be maintained for a deposit in a bank without an actual demand, or something equivalent thereto, before suit is brought.” Also cited 16 Mees. & Wels. 321. It was said that in this case there was no breach of contract or duty.

      J. Hamilton, for defendant in error.
    The only question is whether proof of a previous demand was necessary: This case is not material as it respects mere depositaries without compensation. It is not applicable to banks. In the case of Wingate v. The Bank, it was disputed whether any charge was made for collection, except to cover expenses; in this case the charge for service is not disputed. The law implies a promise from brokers and other agents for hire, that they will exercise proper skill and care in their respective callings. In this case, if the defendants did not make the collection in a reasonable time, they should have given notice to the plaintiff and returned the note, or put it in his power: Lex Mercatoria 41; 4 Rawle 229; Id. 392; 4 W. & Ser. 306; 6 Id. 416; 5 Harris 322.
    As to a demand not being necessary was cited 5 W. & Ser. 435, Ludwig v. Meyre; 5 Barr 42, Gilpin v. Howell; 10 Id. 231, Hall v. Rupley; 1 Step. N. P. 381; 5 Whar. 505, Miller v. Bank.
   The opinion of the Court was delivered by

Knox, J.

On the 9th of March, 1850, Raimond placed in the hands of Drexel & Co. C. L. Jones’ draft for $150, payable at Lewistown in 15 days, for collection, subject to a charge of •- per cent. This action is brought to enforce the agreement, and the breach laid in the declaration is in not collecting and paying the amount of said draft.

The only question which is raised upon the record before us is this. Can the action be sustained without a previous demand? The District Court gave a.n affirmative answer to this inquiry, and in doing so were clearly right.

If the amount of the draft was lost by the negligence of the plaintiffs in error, they were liable on their contract, and the institution o'f the suit was the only demand that was necessary. If the money was actually received by them, it was their duty to give notice to their principal that it was subject to his disposal; failing in this, they cannot protect themselves against an action by alleging that no demand was made for the money before the suit was brought. The defence is equally unavailing, whether the cause of action was negligence in collecting or in paying. Where an agent receives money and gives due notice to the principal, ho cannot be sued without a previous demand as he is in no default; but if no notice is given, an action lies without demand.

Judgment affirmed.