author: Mr. Justice Potter,

text:
    Walsh’s License.

      Liquor law — License—Petition—Citizenship.
    A petition for a liquor license which states that the appellant is a citizen of the United States, and that he was born in Ireland, is not fatally defective because it fails to state in what manner the appellant became a citizen.
    Argued Feb. 2, 1904.
    Appeal, No. 70, Oct. T., 1904, by Patrick J. Walsh, from decree of Superior Ct., April T., 1904, No. 12, reversing order of Q. S. Allegheny Co., March T., 1908, No. 463, granting liquor license in re Petition of Patrick J. Walsh.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Appeal from Superior Court: See 24 Pa. Superior Ct. 87.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was the judgment of the Superior Court.

      A. L. Pearson, Jr., with him Edwin A. Stowe and Edwin W. Stowe, for appellant.
    Citizenship may be acquired without birth within the territory of the United States or without naturalization, by the child succeeding to the status of his father as a citizen: State v. Adams, 45 Iowa, 99; Oldtown v. Bangor, 58 Me. 353.

      M ÜT. Stevenson, for appellee.
    April 11, 1904:
   Opinion by

Mr. Justice Potter,

The question of amendment does not arise in this case. The appellant stands squarely upon the sufficiency of the petition as originally filed. It is averred by the remonstrants that the petition is defective in that it does not show that the applicant has ever been naturalized. We have the original application before us, and upon inspection we find that it states as a fact that the petitioner is a citizen of the United States; and, further, in compliance with the requirement that the applicant shall state his place of birth, he sets forth that he was born in Ireland.

A printed form of petition was used, with suitable blanks left to be filled tip with pen and ink. This printed form was arranged to suit the case either of one born a citizen, or of one who had become such by means of naturalization.

The third' clause of section five of the act of May 13,1887, which is the statute authorizing this proceeding, requires the statement of the place of birth of the applicant, and if a naturalized citizen, where and when naturalized. In the petition before us, the applicant did not rest with the statement of the place of birth, which was given as Ireland, but in addition he gave the year of birth, and then, as we read the record, added the date, March 12th, of that year. But in writing the date March 12th, the scrivener, no doubt inadvertently, continued along the same line too far, in disregard of the printed vertical lines of division between the two sections of the printed form; and by so doing, the date, March 12th, was placed beneath that portion of the blank form which was intended to be used by a petitioner who had been naturalized. The error, however, is purely a clerical one, and is apparent at a glance.

We do not find anything in the statute requiring the applicant to state the day of the month upon which he was born. If he were a naturalized citizen, he would be required under the act to state where and when he was naturalized. But as a matter of course, if he were not a naturalized citizen, he could make no statement as to any such fact. We are then left to consider whether or not the statement that the applicant was born in Ireland necessarily negatives the preceding averment in the same petition that he is a citizen of the United States.

The opinion of the Superior Court concedes that there is no necessary antagonism between the two statements, and that, taken as a whole, it may be that the petition is not misleading; and yet it holds that the petition was defective, in that, as it suggests, special learning and investigation is required to explain its apparent contradictions. We cannot agree with this conclusion. It is quite possible that one may be a citizen of the United States and at the same time have been born in Ireland; and this without having been personally naturalized. The only learning required to substantiate this statement is a knowledge of the act of congress, and of this the judges of the court would take judicial notice.

By the act of congress of April 14, 1802, Rev. Stat. of U. S. sec. 2172, it is provided that “ the children of persons who have been duly naturalized under any law of the United States .... being under the age of twenty-one years at the time of the naturalization of their parents, shall if dwelling in the United States, be considered as citizens thereof.” The naturalization of the parent in such case is ipso facto, the naturalization of the child, and the rights and privileges of citizenship are at once imputed to the child, to the same extent as though arising from birth.

The statute under which the court of quarter sessions proceeds in granting licenses for the sale of liquor requires the statement of certain specified facts which are essential to the exercise of jurisdiction. But when these facts are stated it is not necessary to state in the petition the proof of their truth.

The testimony taken at the hearing is no part of the record, and is not before us; but it must be presumed that the evidence to support the allegations of the petition was satisfactory to the judges of the court. And it does appear from the record that the applicant filed an affidavit showing that his father was duly naturalized in the year 1872. The averments of the affidavit taken in connection with the statements set forth in the petition, show that applicant was rightly to be considered as a citizen of the United States. We do not consider this affidavit in the light of an amendment to the petition, but rather as a part of the evidence adduced in support of its allegations. Nor do we regard the petition as being deficient in the presentation of any jurisdictional fact which was essential to the exercise of authority by the court in the premises.

The assignments which allege error in reversing the decree of the court of quarter sessions of Allegheny county are sustained. It is therefore ordered that the judgment of the Superior Court be reversed, and that the decree of the court of quarter sessions granting the license in this case be reinstated and affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Baxter, Appellant, v. Doane.

      Vendor and vendee — Parol sale of land — Possession—Statute of frauds.

    Exclusive possession is an indispensable ingredient in a parol contract for the sale of land.
    To pass title to land by a parol sale so as to constitute the equivalent of a decree for specific performance, possession must have been taken in pursuance of the bargain or contract. If possession was taken against the consent of the vendor and in the face of his violent opposition, the parol sale is barred by the statute of frauds.
    Argued March 14, 1904.
    Appeal, No. 197, Jan. T., 1903, by defendant, from order of C. P. Bradford Co., Sept. T., 1900, No. 6, refusing to take off nonsuit in case of Ezra Baxter v. Allen A. Doane, Elizer C. Ely and John H. Brown.
    Before Dean, Fell, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Ejectment for an interest in land in Springfield township. Before Niles, P. J., specially presiding.
    The opinion of the Supreme Court states the case.

      Error assigned was refusal to take off nonsuit.

      Bodney A. Merour, for appellant.
    The possession taken by the plaintiff was sufficient: Riel v. Gannon, 161 Pa. 289; Brodhead v. Rainbold, 200 Pa. 618; Reed v. Reed, 12 Pa. 117; Billington v. Welsh, 5 Binney, 129; Parker v. Wells, 6 Wharton, 153; Lance v. Gorman, 136 Pa. 200; Smith v. Lessee of Patton, 1 S. & R. 80; Rhodes v. Frick, 6 Watts, 315; Pugh v. Good, 3 W. & S. 56; Milliken v. Dravo, 67 Pa. 230; Ballas v. Wolff, 11 Pa. Superior Ct. 150; Haslet v. Haslet, 6 Watts, 464; Jamison y. Dimock, 95 Pa. 52; Anderson v. Brinser, 129 Pa. 376.

      M. K. Mitchell and William Maxwell, for appellee,
    cited: Hart v. Carroll, 85 Pa. 508; Haslet v. Haslet, 6 Watts, 464; Moore v. Small, 19 Pa. 461; Allen’s Est., 1 W. & S. 383; Anderson v. Brinser, 129 Pa. 376; Jones v. Peterman, 3 S. & R. 543; Armstrong v. Armstrong, 3 M. & K. 45; Brawdy v. Brawdy, 7 Pa. 157; Parker v. Wells, 6 Wharton, 153; Reno v. Moss, 120 Pa. 49.
    April 11, 1904:
   Per Curiam,

This was ejectment by plaintiffs to recover possession of the undivided seven eighths of a farm in Springfield township, Bradford county. The court below was of opinion there was no evidence on the part of plaintiff which would warrant a recovery and directed a nonsuit, which it afterwards refused to take off and plaintiff brings this appeal alleging for error the refusal to take off the nonsuit. Was there any evidence which if submitted to the jury would have sustained a verdict ? There was considerable evidence of a sale by parol but to pass the title so as to constitute the equivalent of a decree for specific performance, possession must have been taken in pursuance of the bargain or contract. This has been so often decided that we need only cite the leading case, Haslet v. Haslet, 6 Watts, 464, “Exclusive possession is an indispensable ingredient in a parol contract for the sale of land.”

What possession was taken ? Some time after plaintiff was notified he could not have the land he made some repairs to an old house and put some sheep in a fifteen acre field of the farm. From this he was driven away by defendant. If this possession had been taken in pursuance of the parol contract, it might have been constructively extended to the whole farm, but it was not in pursuance of the contract, on the contrary was against the consent of the vendor and in the face of his violent opposition.

There was an entire absence of such proof as would take the case out of the prohibition of the statute of frauds. The alleged possession instead of being exclusive of the vendor was at most what the law calls a “ scrambling ” one.

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


author: Mr. Justice Dean,

text:
    Guinter, Appellant, v. Williamsport.

      Negligence — Municipalities—Sidewalk—Province of court and jury.

    In an action against a city to recover damages for injuries sustained by a fall on a sidewalk, it appeared that the accident occurred on the side of a street on which plaintiff had lived for ten or twelve years, and over which he passed half a dozen times a day to and from his home. The street proper had never been paved, nor was the sidewalk actually separated from the street by a line of curbstone, although the demarcation between the two was noticeable. By an ordinance there had been laid upon the sidewalk a paving of stone five feet wide. The ordinance directed that the entire width of the sidewalk between the property line and the street should be ten feet. One foot ten inches from the property line the stone pavement began, so that adding this to the five feet of pavement, and deducting this from the entire width of the sidewalk, would leave a space not paved, of three feet two inches. On this space some trees were planted, and between them the ground was maintained as a grass plot. The grass was protected by a quarter inch wire guard on posts about fifteen inches above the ground. A pair of steps led from plaintiff’s residence to the sidewalk. The protecting wire of the grass plot at one end was bent at right angles and connected with one of the tree boxes. Plaintiff in passing a knot of several women who were standing on the walk endeavored to turn out from the paved walk on the side next the wire along the grass plot, struck his leg against the wire, fell and was injured. Held, (1) that the evidence failed to establish negligence per se on the part of the city; (2) that a verdict and judgment in favor of the city should be sustained.
    Argued March 14, 1904.
    Appeal, No. 233, Jan. T., 1903, by plaintiff, from judgment of C. P. Lycoming Co., June T., 1902, No. 114, on verdict for defendant in case of John L. Guinter v. City of Williamsport. '
    Before Dean, Fell, Mestrezat, Potter and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries sustained by falling on a sidewalk. Before Hart, P. J.
    The facts appear by the opinion of the Supreme Court.
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were various instructions, and particularly (2) that the court failed to instruct the jury that the wire was a nuisance per se.

      H. W. Watson, with him John J. Reardon and J. C. Watson, for appellant.
    Every unauthorized encroachment upon a public highway or any portion thereof is a common nuisance: Phila. & Trenton Railroad Case, 6 Wharton, 25; Reimer’s App., 100 Pa. 182; Norristown v. Moyer, 67 Pa. 355; State v. Atkinson, 24 Vt. 448.
    The city is presumed to have knowledge of an open defect after a reasonable time for its ascertainment and removal: Vanderslice v. Philadelphia, 103 Pa. 102; McLaughlin v. City of Corry, 77 Pa. 109.

      P. F. Cummings, city solicitor, with him Seth T. McCormick for appellee.
    It is the contention of the appellee that the erection by the adjoining lot owner of a wire for the protection of a grass plot located on the sidewalk area outside of that part of the sidewalk area specifically set aside for the use of pedestrians, and the acquiescence therein by the city for even such a length of time as to constitute implied notice, does not constitute negligence on the part of the city : McArthur v. City of Saginaw, 58 Mich. 357 (25 N. W. Repr. 313); Oliver v. City of Denver, 57 Pac. Repr., 729; Dougherty v. Village of Horseheads, 159 N. Y. 154 (53 N. E. Repr. 799); McDonald v. City of St. Paul, 84 N. W. Repr. 1022; Dubois v. City of Kingston, 102 N. Y. 219 (6 N. E. Repr. 273); Heiss v. Lancaster, 203 Pa. 260; Canavan v. Oil City, 183 Pa. 611; Vanderhurst v. Tholcke, 113 Cal. 147 (45 Pac. Repr. 266); City of Atlanta v. Milam, 95 Ga. 135 (22 S. E. Repr. 43); Stackhouse v. Vendig & Co., 166 Pa. 582; Kelly v. Bennett, 132 Pa. 218; Mattimore v. Erie City, 144 Pa. 14; Macomber v. City of Taunton, 100 Mass. 255.
    One cannot recover damages for an injury which by the exercise of reasonable care he might have avoided: Delaware, etc., R. R. Co. v. Cadow, 120 Pa. 559; Pittsburg Southern Ry. Co. v. Taylor, 104 Pa. 306; Erie v. Magill, 101 Pa. 616.
    April 11, 1904:
   Opinion by

Mr. Justice Dean,

The accident complained of occurred in broad daylight on the sidewalk on the south side of Lycoming street in the city of Williamsport being that side of the street on which plain.tiff had lived for ten or twelve years and over which he passed half a dozen times a day to and from his home. The street proper had. never been paved, nor was the sidewalk actually separated from the street by a line of curbstone although the demarcation between the two was noticeable. By an ordinance of the city there is laid upon the sidewalk a paving of stone five feet wide. The same ordinance directs that the entire width of the sidewalk between tbe property line and the street shall be ten feet. One foot ten inches from the property line the stone pavement begins, so that adding fhis to the five feet of pavement, and deducting this from the entire width of the sidewalk would leave a space, not paved, of three feet two inches. On this space some trees are planted and between them the ground is maintained as a grass plot. The grass is protected by a quarter inch wire guard on posts about fifteen inches above the ground. A pair of steps led from plaintiff’s residence to the sidewalk; the protecting wire of the grass plot at one end was bent at right angles and connected with one of the tree boxes. 'Plaintiff in passing a knot of several women who were standing on the walk endeavored to turn out -from the paved walk on the side next the wire along the grass plot, struck his leg against the wire, fell and was injured. He brought suit against the city for damages, alleging that permitting the use of the wire in that situation was such negligence as rendered the city answerable. The court below submitted the evidence to the jury to find whether as a question of fact, under the circumstances, the city was negligent. The jury found for the city and plaintiff now appeals. We think the court fully and fairly submitted the question to the jury and that they found the fact just as the court might properly have, peremptorily on the evidence, instructed them to find it.

But counsel for appellant argues very earnestly, that the evidence established negligence per se on the part of the city; we do not think so and have so decided in Martin v. same city in an opinion handed down this day, a case very like the one before us on its facts. Although no case presenting exactly the same facts, has heretofore" reached us, the principle applicable to similar facts we have frequently announced, as notice Canavan v. Oil City, 183 Pa. 611, and other like cases. But that the facts do not establish negligence per se has been pointedly decided in the courts of several states. In Oliver v. City of Denver, Court of Appeals of Colorado, 57 Pac. Repr. 729, the paved part of the sidewalk was only four feet in width; there was no obstruction whatever upon that; iron railings about one foot high had been placed on the outer edge of the pavement to protect the grass plot; the complainant attempting to step outside the paved part, struck and was injured by the iron railing which had been placed there to protect the grass. The court says :

“ The only conclusion which can be drawn from the statements of the complaint is that the plaintiff was injured in an attempt to step from this (the paved) portion of the sidewalk area prepared and plainly provided for the use of foot passengers to a part of the sidewalk area not intended for foot travel or that he was crossing from the street to the sidewalk over a portion of the sidewalk area not intended for such foot travel. In either event he had no right to assume that the way from the sidewalk to the street was smooth and even.”

Like decisions with reference to injuries sustained in collisions with similar structures to protect grass plots along sidewalks were rendered in Dougherty v. Village of Horseheads, 159 N. Y. 154; Raymond v. City of Lowell, 60 Mass. 524; McArthur v. Saginaw, 58 Mich. 357, and many other cases. The grass plot here, inclosed as it was, was not either in itself or by permission of the city a nuisance and therefore the city is not answerable in damages for negligence.

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

       Also reported 53 N. E. Repr. 799.


text:
    Martin, Appellant, v. Williamsport.

      Negligence—Municipalities—Sidewalk—Grass plot—Wire around grass plot—Nonsuit.

    A municipality may set aside portions of the streets or sidewalks, not necessary to be used for business purposes in particular localities, for the construction of boulevards, parks, grass plots, the planting of shade trees, the maintanance of hitching posts, stepping stones, or for other purposes useful, healthful or ornamental merely; and may protect the same by reasonable means from the encroachments of travel.

      In an action against a city to recover damages for personal injuries sustained from a fall on a sidewalk, it appeared that the sidewalk where the accident occurred was in a residential part of the city, and that the plaintiff was familiar with the locality. At the point in question the distance between the property line and the curb was twelve feet six inches. By ordinance of the city five feet of this width on the side near the curb was paved for sidewalk, and the remaining width was used as a grass plot with flowers and trees. A wire fastened to the top of the posts about ten inches high extended along the grass plot to protect it. The grass plot was about four feet eight inches wide, and occupied the space between the curb and the stone walk. Plaintiff testified that in going along the stone walk he saw a friend on the other side of the street, and in hurrying toward him caught his foot in the wire, fell and was injured) Held, that a nonsuit was properly entered.
    Argued March 14, 1904.
    Appeal, No. 44, Jan. T., 1904, by plaintiff, from order of C. P. Lycoming Co., March T., 1903, No. 1, -refusing to take off nonsuit in case of William F. Martin v. City of Williamsport.
    Before Dean, Fell, Mestbezat, Potteb and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Hast, P. J.
    The facts appear by tbe opinion of the Supreme Court.

      Error assigned was refusal to take off nonsuit.

      W. E. Ritter, for appellant.

      Seth T. McCormick, with him F. P. Cummings, city solicitor, for appellee.
    April 11, 1904:
   Per Curiam,

We take the statement of the leading facts and the question involved as they are set out by appellant in his paper-book, for we assume that they are stated as favorably to his side of the case as his able counsel thought the evidence warranted.

“ A wire had been maintained along the edge of the stone walk laid in the areaway allotted for sidewalks along West Fourth street in the city of Williamsport for several months. It was fastened to the top of the posts, about ten inches high driven in the ground. The wire was between the stone walk and the space separating it from the curb and extended longitudinally along, the walk.

“ Was the city negligent in maintaining the wire ? ”

The plaintiff stumbled over or tripped on the wire, fell and sustained injury. He brought suit against the city for damages, by direction of the court was nonsuited and now appeals.

Negligence is the absence of care according to the circumstances. Although the city did not actually put the wire at that place or maintain it there, yet having permitted it to be there, although constructed by a resident at that point, legally the city is answerable for its existence in that situation at that time. The circumstances which prompted the resident to construct and the city to permit its construction were these : West Fourth street is exclusively a resident street; the usual business and traffic are not carried on upon or along it; the dwellings both as to architecture and comfort are better than those along most of the other streets; the lots are wide with larger space between the buildings and the buildings are set back some distance from the property line leaving a lawn in front; at the lot where the accident occurred the distance between the property line and the curb is twelve feet six inches; by ordinance of the city five feet of this width next the curb wras paved for sidewalk and the remaining width was used for ornamental purposes, such as grass plots, flower borders, trees and like purposes; to protect the grass plots this wire was put up, not only at this point but on other parts of the street. It is not alleged that the five feet of paved sidewalk was not of ample width for any number of persons who in that part of the city desired to pass and repass thereon on their way up and down the street. In this particular the city had performed its full duty to the public, that is, it had provided a reasonably safe way for the passage of the public by night and day along Fourth street. But there was still left a space between the outer edge of the pavement and the curb of about four feet eight inches occupied as a grass plot as before stated protected by the wire ten inches high. That it was there and so protected any resident of the city including the plaintiff must be assumed to have known. That the fact was not consciously manifest to him at the moment he fell is'not material. If he unconsciously stepped into a gutter at the side of the street and had fallen, or failing to lift his feet high enough at an abrupt crossing had stumbled, he might have truthfully said he did not at the moment know the gutter or the crossing was there, yet at other times when not agitated or hurried he knew and must have known from his knowledge of the customary plans and construction of the city streets they were there. The unpaved part of the sidewalk was being used at the time of the accident as it had been used for years and as the residents knew it was being used. The plaintiff states he came out of Mr. Cochran’s house on the west side of Park street and started down Fourth, that he saw a friend at Fifth avenue and hallooed to him, and then went across, caught his foot in the wire and fell. His friend testifies that plaintiff started to run to catch him and fell.

Now according to all these circumstances, and they are undisputed, where was the want of care on the part of the city? It is not an insurer against accidents. It was not bound to prohibit residents beautifying their homes and the streets by the cultivation of grass plots on that part of the sidewalk which was not necessary for public passage. We do not say that plaintiff had no right to cross over from one side of the 'street to the other through the grass plot, we only say there was no duty on the part of the city to provide him with an unusually safe path through the grass plot at that particular point that he might hurriedly cross the street to meet his friend.

While we have no case in this state involving exactly the same facts, the principle announced in Robb v. Connellsville Boro., 137 Pa. 42; Stackhouse v. Vendig, 166 Pa. 582; Canavan v. Oil City, 183 Pa. 611, is the same. Many cases however are cited from other states based on the facts as the one before us, holding that:

“ A municipality may set aside portions of the streets or sidewalks, not necessary to be used for business purposes in particular localities, for the construction of boulevards, parks, grass plots, the planting of shade trees, the maintenance of hitching posts, stepping stones, or for other purposes useful, healthful or ornamental merely. And may protect the same by reasonable means from the encroachments of travel: ” Dougherty v. Village of Horseheads, 159 N. Y. 154; Oliver v. City of Denver, 57 Pac. Repr. 729.

We think the court below committed no error in refusing to take off the nonsuit. All the assignments of error are overruled and the judgment is affirmed.


author: Mr. Justice Fell,

text:
    Bailey’s Estate.

      Trusts and trustees — Discretion of trustee — Payment out of principal for maintenance — Accounts.
    Where a testator directs his trustee to pay to his son $300 per year for life, if the income should be sufficient, or $400 per year if the sickness or necessity of the son made it necessary, in the discretion of the trustee, and the trustee pays the larger sum, and his accounts showing such payments are confirmed, other parties in interest cannot claim on a bill of review that the burden is upon the trustee to show that he properly exercised his discretion in paying to the son the larger amount. In such a case the burden of proof is not on the accountant, but on those who question the correctness of his accounts. Every presumption is in favor of the trustee’s honest exercise of his discretion.
    Where an accountant charges himself with interest on the whole balance of principal carried forward from prior accounts, and it appears that the principal is being encroached upon and diminished by proper annual payments in excess of income and by expenses of administration, an adjustment is properly made by taking credit for the interest on the amount of principal paid out.

      Bills of review — Orphans’ court practice — Grounds for review.

    A bill of review may be had as a matter of right only for errors of law appearing on the face of the record, or for new matter that has arisen since the confirmation, and ex gratia for new evidence discovered after the confirmation that could not have been produced before.
    Argued March 14, 1904.
    Appeal, No. 208, Jan. T., 1908, by H. H. Mercer, administrator, from decree of O. C. Lycoming Co., dismissing exceptions to auditor’s report in Estate of Harvey Bailey, deceased.
    Before Dean, Fell, Mesteezat, Pottee and Thompson, JJ.
    Reversed.
    Exceptions to report of B. S. Bentley, Esq., auditor.
    The opinion of the Supreme Court states the case.

      Errors assigned were in sustaining the bill of review and dismissing exceptions to auditor’s report.

      Thomas M. B. Hides, with .him H. H. Mercer, for appellant.
    ■ — The fundamental error made in this case by both the auditor and the court below was in placing upon the accountant the burden of proof to show that the several items of his accounts, three of them confirmed absolutely more than five years and the last one confirmed absolutely nearly three years before the petition for review, were lawful and correct.
    Even had the court below been right, as it was not, in placing generally upon the accountant the burden of justifying the accounts sought to be reviewed, the presumption would be that his exercise of the discretion conferred upon him by the will of the testator was proper and rightful, and this presumption would stand until overcome by countervailing proof: Chew’s Executors v. Chew, 28 Pa. 17; Williams’s Appeal, 73 Pa. 249; Ingles’s Estate, 76 Pa. 430; Bartol’s Est., 182 Pa. 407; Myers’s App., 62 Pa. 104.
    Review may be had only for error of law apparent upon the record: Russell’s Appeal, 34 Pa. 258, 261; Riddle’s Estate, 19 Pa. 431; Milligan’s Appeal, 82 Pa. 389, 395; LeMoyne’s Appeal, 104 Pa. 321, 323; Scott’s Appeal, 112 Pa. 427; Priestley’s Appeal, 127 Pa. 420.
    The error of law complained of must be indicated in the bill or petition with precision and established thereby with absolute certainty : Clothier’s Estate, 4 Pa. C. C. Rep. 214; same case on appeal, Fletcher’s Appeal, 125 Pa. 352; Yeager’s Appeal, 34 Pa. 173; Russell’s Appeal, 34 Pa. 258; Cramp’s Appeal, 81 Pa. 90, 95.

      William R. Peoples and 8. P. Wolverton, for appellee,
    cited: Pry’s App., 8 Watts, 253; Nevins’s Estate, 70 Pa. 410; Bishop’s Est., 10 Pa. 469; Rittenhouse v. Levering, 6 W. & S. 190; Jones’s App., 99 Pa. 124.
    April 11, 1904:
   Opinion by

Mr. Justice Fell,

The testator left the residue of his estate, after the payment of specific legacies, in trust to pay $300 of the annual income to his son, John C. Bailey for life, with the direction, if the income should be sufficient, to pay him annually the further sum of $100 ; and if it should not be sufficient to pay him $300 annually, that so much of the principal as should Tie necessary to make up the payment should be taken. The will further provides as follows: “ I authorize and empower and direct my said executors hereinafter named, if sickness or necessity shall overtake my said son John C. Bailey, in their discretion, if deemed by them or tiieir survivor necessary, to use enough of my said residuary estate, in their hands and trust, together with the annual interest arising thereon, to pay my said son $400 a year during his natural life as above stipulated.”

One of the executors named in the will declined to act. The other filed four accounts during the period extending from the death of the testator in 1880 to the death of his son in 1895. The first account was designated “ The first and partial account,” but it appears to have been the full and final account of the administration of the estate except as to an unimportant item with which the accountant afterwards charged himself as trustee. The other accounts were triennial accounts of the trustee. Due notice of the filing of these accounts was given by advertisement, and they were all confirmed absolutely by the court. In 1896 a petition was presented by the residuary legatees asking the court to open and review these accounts and to grant a rehearing as to so much thereof as was alleged to be erroneous. The main objection to the accounts and the only one to be considered, because it was the only one sustained by the court, was that the accountant had paid the testator’s son more than he was authorized to pay. An answer was filed by the accountant in which he denied the right of the court to review the three accounts that had been filed more than five years before the date of the petition, and in which he averred that all of the accounts were correct. The matter was referred to an auditor whose report was filed in 1899, more than a'year and a half after the death of the accountant. The court approved the finding of the auditor that a devastavit had been committed by the payment to the testator’s son of an amount in excess of the payments authorized by the will; the accounts were opened and the accountant was surcharged with the amount of these payments and with two other amounts for which credits had been taken.

There was no testimony presented to the auditor that tended in any manner to impeach the accounts or to show that they were not entirely correct. The payments for which credits were taken as having been made under the direction of the will were at the rate of $400 per year, the maximum allowance to be paid in the event that the income amounted to that much, or that the sickness or necessity of the testator’s son in the judgment of the accountant warranted the payment of that amount. The view expressed by the auditor and adopted by the court was that, since the accounts filed showed that the annual income did not exceed $300, these, payments could be justified only on the ground of sickness or necessity, “ and in the entire absence of any proof showing or tending to show that the condition of sickness or necessity as provided for in the will had overtaken J. C. Bailey, that the payment to him of an annuity exceeding $300 was unauthorized.”

In this there was error. The burden of proof was not on the accountant, but on those who questioned the correctness of his accounts. The power given him to pay in his discretion the larger amount in the event of sickness or necessity was a very broad one, largely a matter of personal judgment, and his discretion could not be interfered with except for clear abuse of the power. Every presumption was in favor of its honest exercise: Pulpress v. African M. E. Church, 48 Pa. 204; Naglee’s Estate, 52 Pa. 154; Williams’s Appeal, 73 Pa. 249. Fraud will not be presumed, and there was nothing on the face of the account in regard to these payments that offered the slightest ground for its inference, or that made it incumbent upon the accountant to justify his action. The other reasons assigned for granting the petition for a review are equally untenable. The credit taken in the first account for $700 “ paid J. C. Bailey annuity at decedent’s request during his lifetime ” was not claimed in the account as a payment made by direction of the will, and as it appeared from its face that it was made during the testator’s lifetime, it could not have been. Prima facie it was a repayment to the accountant of money paid by him for and at the request of the testator. The credit for “ interest on payments ” in the last two accounts carry their own explanation and justification. In these accounts the accountant charged himself with interest on the whole balance of principal carried forward from the prior accounts. Since the principal was being encroached upon and diminished each year by annual payments in excess of income and by expenses of administration the charge was too large, and an adjustment was made by taking credit for the interest on the amount of principal paid out.

But aside from the want of merit in the objections to the accounts, there was no ground for the granting of a review. It has been settled in a long line of cases that petitions of review under the act of 1840 are governed by the chancery rules as to bills of review, and that a review may be had as matter of right only for errors of law appearing on the face of the record or for new matter that has arisen since the confirmation, and ex gratia for new evidence discovered after the confirmation that could not have been produced before : Green’s Appeal, 59 Pa. 235; Milligan’s Appeal, 82 Pa. 389; Scott’s Appeal, 112 Pa. 427; Priestley’s Appeal, 127 Pa. 420. The averments of the petition did not bring it within these rules, and it should have been dismissed.

The decree is reversed at the cost of the appellee.


text:
    Fullmer v. New York Central & Hudson River Railroad Company, Appellant.

      Negligence — Railroads—Master and servant — Fellow servant — Car inspector — Brakeman.

      • Where an inspector of air brakes, in working under a car in a railroad freight yard is injured by the negligence of a brakeman in failing to open and close certain switches, the inspector cannot recover damages from the railroad company, inasmuch as his injuries were due to the negligence of a fellow servant. In such a case the absence of a signal target which had formerly been in use cannot be considered as the proximate cause of the accident where it appears that its presence would not have reminded the brakeman of his duty, and its absence did not mislead the plaintiff.
    Argued March 14, 1904.
    Appeal, No. 45, Jan. T., 1904, by defendant, from judgment of C. P. Lycoming Co., June T., 1903, No. 360, on verdict for plaintiff in case of Herman Fullmer v. New York Central & Hudson River Railroad Company.
    Before Dean, Fell, Mestrezat, Potter and Thompson, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Hart, P. J.
    The facts are stated in the opinion of the Supreme Court.
    At the trial the jury returned a verdict for plaintiff for 18,000, subject to question of law reserved. Subsequently the court entered judgment on the verdict.

      Error assigned among others was ih not entering judgment for defendant non obstante veredicto.

      Seth T. MeQormiok, for appellant.
    Negligence of- a fellow servant was the proximate cause of the injury: Casey v. Penna. Asphalt Paving Co., 198 Pa. 348; Hughes v. Leonard, 199 Pa. 123; Duncan v. Roberts Co., 194 Pa. 563; Velas v. Patton Coal Co., 197 Pa. 380; Valentine v. Colburn Co., 10 Pa. Superior Ct. 453; Prevost v. Citizens’ Ice & Refrigerating Co., 185 Pa. 617; Keystone Bridge Co. v. Kennedy, 9 W. N. C. 552.
    The absence of the switch target or other safety device was not the proximate cause of the injury: Chicago G. W. Ry. Co. v. Price, 16 Am. & Eng. R. R. Cases (N. S.), 324; Bunting v. Hogsett, 139 Pa. 363; Willis v. Amstrong Co., 183 Pa. 184; R. R. Co. v. Tribble, 3 Am. & Eng. R. R. Cases (N. S.), 632; Louisville, etc., Ry. Co. v. Southwick, 16 Ind. App. 486 (44 N. E. Repr. 263); Cochran v. Phila., etc., R. R. Co., 184 Pa. 565; Snyder v. Penna. R. R. Co., 205 Pa. 619.
    It cannot be said that the negligence in not having a switch target concurred with the negligence of Hollins to produce the accident, because, as was held in the case of Dixon v. Butler Township, 4 Pa. Superior Ct. 333, in order that two distinct causes of negligence shall be concurring, they must be operating at the same time to produce a different result than might be produced by either. If they are unrelated in their operation, they cannot be concurrent: Chicago, etc., Ry. Co. v. Elliott, 55 Fed. Rep. 949; Baltimore & Ohio R. R. Co. v. School Dist., 96 Pa. 65; Savitz v. Lehigh, etc., R. R. Co., 199 Pa. 218; R. R. Co. v. Driscoll, 12 Am. & Eng. R. R. Cases (N. S.), 644; Ahern v. Melvin, 21 Pa. Superior Ct. 462.

      Otto Gr. Kaupp, with him W. R. Peoples, for appellee.
    If a master subject his servants to dangers such as he ought to provide against, he is liable for any accident resulting from them: Patterson v. Pittsburg & Connellsville R. R. Co., 76 Pa. 389; Penna. & New York Canal & R. R. Co. v. Mason, 109 Pa. 296; Chicago, Milwaukee, etc., Ry. Co. v. Ross, 112 U. S. 377 (5 Sup. Ct. Repr. 184).

      The duty of inspection and proper repair of the switch target, and repair track was on the appellant, and this duty could not be delegated: Philadelphia & Reading R. R. Co. v. Huber, 128 Pa. 63; Penna. & New York Canal & R. R. Co. v. Mason, 109 Pa. 301.
    April 11, 1904 :
   Opinion by

Mr. Justice Fell,

The plaintiff was employed in the defendant’s repair yard to inspect and repair air brakes. All the tracks in the yard were connected at one end with a track by means of which cars were transferred to different parts of the yard. The tracks and switches were in the exclusive use of the yard crew, and when men were working under the cars a blue flag was used as a signal of warning to this crew. The plaintiff had been employed in the yard nearly a year, was familiar with its management, and knew the dangers incident to his employment. On the morning of the accident, while working under a car on track No. 6, which was the outside track on the south side of the yard, he was notified that a freight c?,r which had been placed on this track the night before was to be removed. He left his work while this was being done. When he returned a few minutes later, he looked to see whether the blue flag had been replaced and where the yard crew were. He saw a fellow workman in the act of replacing the blue flag between the rails of track No. 6 and saw the crew at work on the connecting track between tracks No. 8 and No. 10. He then resumed his work under the car.

The crew after removing the car from track No. 6 took a train of cars from another track to transfer them to different parts of the yard. They placed two cars on track No. 10 and then pushed or, in the vernacular of the shifting crew, “ kicked ” the other cars in order to make them run onto track No. 7. The brakeman whose duty it was to open and close the switches forgot to open the switch leading onto No. 7 and to close the one connecting No. 6, which he had opened a few minutes before when the car was removed from that track. He stood at track No. 8 looking north, in the opposite direction from the switoh, when the cars passed him. They ran past track No. 7 and onto track No. 6 and over the blue flag, aud collided with the car under which the plaintiff was working. This brakeman, called by the plaintiff, testified that it was his duty to close the No. 6 switch and to open the No. 7, that he forgot to do it, and that he did not look in that direction as the cars came down the connecting track.

The negligence alleged was the employment of an incompetent brakeman, and the failure to supply signal targets at the switches. There was no proof in support of the first allegation of negligence. To sustain the second it was shown that at one time a signal target had been in use at the switch connecting track No. 6, and that it had been broken or removed six months or a year before the accident. And testimony was admitted under objection, based on the incompetency of the witness to testify as an expert, to show that targets were in general use in repair yards. The jury were instructed that the brakeman was a fellow servant of the plaintiff and that if his negligence was the proximate cause of the accident, there could be no recovery; but that there could be a recovery if the proximate cause was the failure of the defendant to provide a device necessary for the safety of its workmen and in common use.

The want "of a signal was not the proximate cause of the accident, nor did it concur in producing it. Its presence would not have reminded the brakeman of his duty, because he did not look toward track No. 6 but stood with his back to it looking in the opposite direction. Its absence did not mislead the plaintiff, who knew no signal had been in use for months, and who looked only to see that the yard crew had left track No. 6 and that the blue flag was in place. There was only one conclusion to be drawn from the testimony produced by the plaintiff, and this was so clear and free from all doubt that the court should have instructed the jury to find for the defendant. The accident was the direct and immediate result of the negligence of a fellow workman, who opened the switch and forgot to close it.

The judgment is reversed and judgment is now entered for the defendant.


author: Mb,. Justice Thompson,

text:
    Learock v. Paxson, Appellant.

      Bailment — Conversion of stock — Damages—Measure of damages — Brokers.
    In an action against a firm of stockbrokers by one of their customers, to recover damages for the wrongful conversion and sale of the latter's stock, the measure of damages is the highest price for the stock between the date of the conversion and that of the trial.
    In such a case where the customer reserves his right to sell the stock pledged in the hands of his brokers upon any occasion that he might desire to do so, and the brokers sell it without notice to the customer, or authority from him, although he was ready and willing to protect it, a tender on the part of the customer is unnecessary before suit brought.
    Argued March 21, 1904.
    Appeal No. 80, Jan. T., 1908, by defendant, from judgment of C. P. No. 2, Phila. Go., Dec. T., 1899, No. 206, on verdict for plaintiff in case of George F. Lea-rock v. William B. Paxson and Mablon B. Paxton, trading as Frederick Paxson & Company.
    Before Dean, Fell, Brown, Mesteezat and Thompson, JJ.
    Affirmed.
    Trespass to recover damages for alleged conversion of stock. Before Sulzberger, J.
    The facts are stated in the opinion of the Supreme Court.
    The court charged in part as follows :
    The plaintiff was the manager of a theater, and apparently, from the results, a capable and competent manager, with a certain degree of thrift, as is evidenced by his savings bank books, and a certain degree of success, as shown by the fact that he had at least $7,000 in cash apparently from savings, or other receipts. His occupation as manager of a theater appears to have allowed him a certain amount of leisure, and this leisure he proposed to employ by going into a kind of merchandising. He began by dealing in the great agricultural staple of the country, wheat, and then he dealt in the shares of a trading company that was concerned with another great staple, tobacco; According to the account presented, his sagacity respecting the production and marketing of wheat seems to have been at fault, and on the whole he was a loser in that matter. He bought 300 shares, Philadelphia standard, of the stock of the American Tobacco Company, at an average price of about $60.00 a share, in November, 1899, being a total price of about $18,000. First and last he paid on account of this purchase what was accepted as cash, and therefore is cash, the sum of $6,000, or thereabouts, and thereupon he had to raise $12,000 more, and this he raised- — theoretically, of course, but still he raised it — by depositing these 800 shares, which both parties agree existed, with Paxson & Company, who loaned him $12,000 on it. The relations of the parties were therefore these : Paxson & Company, besides being his brokers, had become money lenders and had loaned him $12,000 — I suppose at six per cent, since no other rate was mentioned — upon the implied condition, evidenced by their acceptance of the security, that they would hold the collateral as security for the payment of the loan. It is undoubtedly usual in transactions of this kind where dealings are in securities liable to fluctuate rapidly in the market, to make an agreement whereby the lender of so large a sum of money as $12,000, upon such securities, may, when he is in peril of loss, secure himself against actual loss, by a sale of the collateral in the market. In the absence of any special agreement respecting the rights of the pledgee,' the man who advances the money on the collateral, however, they stand merely on the ordinary footing of pledgor and pledgee, and that ordinary footing is this : When a man has borrowed money on a pledge of collateral security, with the implied understanding that the collateral security is to be effectually used so as to protect the lender against loss on that loan, the lender must give the borrower reasonable notice of his intention to sell the collateral. [It is conceded in this case that no reasonable or other notice was given to the borrower, and that this collateral was, contrary to the law of pledges, sold without any notice whatever being given to the man who was the borrower of the money and the owner of the collateral. That was, in law, a breach of the contract of the lender, and for that breach he is liable in damages.
    There must, therefore, .if there be any damage, be a verdict for the plaintiff, and that there is damage is claimed by the plaintiff and conceded by the defendants.
    The plaintiff, however, claims that the damages suffered by him exceed the sum of $14,000, whereas the defendants contend that the whole damage suffered by the plaintiff was 1744, less $36.00 which would be $708.
    There are certain patent facts which you must not leave out of your minds, namely, that at the time of the sale of this pledged security the whole amount of money that the plaintiff ever put into that security was $5,600, according to the evidence. That is all he had in it. The rest had been put in by the defendants. Now a man cannot conceivably lose more than $5,600 on $5,600. That is all he can lose — that is the whole of it — unless that $5,600 is in a shape that it enhances in value. There is no evidence before us that at the moment when Mr. Learoclc was notified that his property was sold, the property had at all advanced in value. On the contrary, it had gone down in value over $5,000. I think there is no evidence before us of its having in a short time afterwards enhanced considerably, perhaps for a month — certainly for some weeks.
    The point of the case appears to me to be this, and that is what I leave to you: I take it that the calculation of the defendants is not quite correct. According to their statement, the sale at $80.00 produced $224 in favor of the plaintiff, and the sale at $85.00 necessarily produced $750 more. Therefore, there would have been in their hands on the 19th of December, $974, and that, with interest to date, nearly three years, whicli would make pretty nearly $180, would make the plaintiff’s claim about $1,150 to date, roughly calculating it. To that amount, accurately calculated, I take it the plaintiff is entitled anyhow.
    There are complications in the case. The first complication is that the defendants sold this collateral without any order and without any_ legal authority. The second complication is that after the defendants had sold it for $85.00 a share, they sent the plaintiff an account in which they alleged that they had sold it for $80.00 a share. Where a man in a confidential relation like that of a pledgee sells, without notice to the pledgor and in his absence, the pledgor’s property,' the highest good faith is required. If, therefore, the defendants wilfully made the return at $80.00 then it is for the jury to consider whether this intent to defraud the plaintiff, if it existed, was not older than the making of the account, was not in their minds when they made the sale, and would not be one of the reasons why they had made the sale.

      You are therefore to determine whether the defendants had in their minds a fraudulent intent when they made the sale. If you find that they acted merely from error and that they had at that time no fraudulent intent, then the recovery of the plaintiff is limited to the amount I have stated.
    If, however, you find that there was a fraudulent intent in the sale, then you are at liberty to add to that amount such reasonable sum as may serve as punishment to the defendants for this fraudulent act. That sum is not to be ascertained by finding the highest price that the stock sold for in the market since, as counsel for the plaintiff contends. That is not the law which is to govern you in finding the amount of that -smart-money. You are to view the transaction as a whole; you are to view the degree of turpitude, if any, in the conduct of the defendants; and you are to give an approximate amount, in addition to the amount really due on the account, as a punishment to the defendants and a deterrent to other people. You are not to impart into that consideration feelings of vindictiveness or malice, or general prejudice. You are to bear yourselves as judges who know neither malice nor wrath, but who sit calmly and deliberate, and who, if they must punish, punish with requisite severity, but with judgment and with reason.]
    Verdict and judgment for plaintiff for 17,000. Defendant appealed.

      Error assigned among others was (2) portion of charge as above, quoting it.

      Ruby R. Vale, with him Alexander f Magill and Alfred Moore, for appellants.
    In cases of the conversion of stock certificates or bonds of similar securities, in the absence of a breach of trust or disregard of an obligation to deliver certain stock at a specified time, the measure of damages is the market value at the time and place of conversion with interest thereon to the time of trial, deducting therefrom, by way of recoupment, any moneys advanced by the pledgee ori account of the purchase price of the stock or for expenses incurred: Neiler v. Kelley, 69 Pa. 403; Work v. Bennett, 70 Pa. 484; R. R. Co. v. English, 86 Pa. 247; Wilson v. Whitaker, 49 Pa. 114; Montg. County Bank v. Reese, 26 Pa. 143; Reitenbaugh v. Ludwick, 31 Pa. 131; Musgrave v. Beckendorff, 53 Pa. 310; Persch v. Quiggle, 57 Pa. 247; Jennings v. Loeffler, 184 Pa. 318.

      Gavin W. Hart, with him Edward D. McLoughlin, for appellee.
    The Pennsylvania decisions divide the cases of conversion of stock in which the highest price is the measure of damages into three classes:
    1. Where there is a breach of fiduciary relations, as in Montg. County Bank v. Reese, 26 Pa. 143.
    2. Where there is an obligation to deliver specific stock at a certain time, as in Reitenbaugh v. Ludwick, 31 Pa. 131, and Musgrave v. Beckendorff, 53 Pa. 310.
    3. Where there are circumstances of fraud, malice, oppression, or other aggravation attending the conversion or detention, as pointed out in Montg. County Bank v. Reese, 26 Pa. 143; Conyngham’s Appeal, 57 Pa. 474; Neiler v. Kelley, 69 Pa. 403, and other cases.
    The plaintiff’s case falls within the first and third classes because a pledgee is a trustee and‘because of the fraud practiced by the appellants which the jury have determined influenced the sale.
    April 11, 1904:
   Opinion by

Mb,. Justice Thompson,

The appellee was clearly entitled to recover and the main question in controversy turned upon the measure of damages in such recovery. The appellee purchased through appellants, as brokers, three hundred shares of the preferred stock of the American Tobacco Company for the sum of $18,000, and from time to time deposited with them sums of money amounting to $5,600 for the purpose of protecting them in a loan required to pay the amount of such stock so purchased. Having done so they held this stock as a pledge to secure the loan which represented an amount equal to the balance of the money, which had been required to make the purchase. On December 15, 1899, Friday, the appellee was at the banking office of the appellants and paid on account of such loan the sum of $3,000, although the sum of $1,000 was stated to be then necessary to protect appellants in consequence of the decline in the price of the stock. This sum was a part of the $5,600. On this occasion appellee testified that he had more money with him to put up if he had been asked to do so by the appellants. On Monday following appellee was at appellants’ office until a few minutes after two o’clock, when he left for his place of business. Up to the time he left a change of a few points in the price of the stock in question had taken place, and appellants said nothing to appellee about requiring additional money to protect the loan and at this time the loan was sufficiently protected. Some time after two o’clock on that day and without any authority from or notice to appellee, appellants sold his stock. Upon receiving notice of such sale the following morning appellee went to appellant’s office and stated that they had no authority to sell his stock and that he intended to hold the same and had been and was always ready to protect them against any loss in the event of a decline in its price. He testifies: “ I told him (one of appellants) that was an unjust way to deal with me. I said I was prepared as I told you in the presence of your brother on BTidáy that I was going to hold this tobacco and for this reason I put up the last $3,000 instead of $1,000.”

After the purchase of this stock the relation as to it between appellee and appellants was that of pledgor and pledgee. It was a violation, of appellants’ duty as pledgee to sell the stock without notice to or authority from appellee, the pledgor, and was a wrongful conversion of it. It is unnecessary to discuss the causes which induced the appellants to make the sale in question. It is sufficient to say that in making the sale without notice to or any authority from the appellee, they were guilty of a violation of the trust imposed upon them as pledgee and their action was wrongful. B'or such wrongful conversion, < the measure of damages, which the appellee was entitled to recover, was the highest price of the stock between the date of the conversion and that of the trial. The sale made by them with the notice and statement sent by them was a wrongful conversion and a distinctive refusal to deliver the stock from that day up to the trial and for such conversion therefore the measure of damages was the highest price of the stock in the market up to the date of such trial. While it is true that in the case of conversion of ordinary chattels, the measure of damages is the value at the time of the conversion, yet in view of the shifting character of the prices of stock in our stock exchanges, such rule would be manifestly inadequate. It has therefore been held that stocks are an exception to the rule in question and the highest price in the market is consequently made the measure of damages.

The foundation of this rule rests upon the changing character of the value of such property as evidenced by the varying quotations in the different stock markets and sometimes the advances in valuation are made with astonishing rapidity. Political action or material or financial combinations often are the occasion of such exceptional advances. The very nature of such property with its constantly changing valuations indicates the necessity of a measure of damages shifting in character, and hence it has been made to differ from that in the case of ordinary chattels where it is based upon their valuation at the time of the conversion, because such value is not so changeable. Such difference is clearly marked in the- leading case of Montgomery County Bank v. Reese, 26 Pa. 143, where Chief Justice Lewis says: “ If a bank or any other trustee might deprive the cestui que trust of his stock, without answering for the rise in the value, the beneficial owner would be deprived of the very advantage which he had in view when he made the investment. It is plain therefore, that the ordinary measure of damages, for the conversion or refusal to deliver chattels of determinate value and unlimited production, will not reach the justice of the case when applied to bank stock.” Again he says : “ It is a settled principle in the court of chancery that where a trustee sells stock contrary to his trust the cestui que trust is entitled to his election, to have the stock replaced or the produce of it with the highest interest: Hart v. Ten Eyck, 2 Johns. Ch. 62, 117; Forrest v. Elwes, 4 Ves. 492; Pocock v. Reddington, 5 Ves. 794. If the cestui que trust has an election in equity to have the stock replaced, why shall he not have its value in an action at law where he cannot have the stock itself. If the chancellor would compel the trustee to go into the market and purchase stock to replace what he had improperly sold, although it had risen in value in the meantime, is not that done upon the principle that he is liable for the increased value ? And when a court of law compels him to pay that increased value, it does nothing more than prescribe the same rule of justice which a court of equity enforces in another form.”

In Neiler v. Kelley, 69 Pa. 403, it is said by Mr. Justice Shabswood : “ The general rule as to the measure of damages in an action of trover, undoubtedly is well settled to be the value of the goods at the time of the conversion, to which may be added interest up to the time of the trial, unless there were some circumstances of outrage in the ease, when the jury may give more : Jacoby v. Laussatt, 6 S. & R. 300; Dennis v. Barber, 6 S. & R. 420; Berry v. Vantries, 12 S. & R. 89; Taylor v. Morgan, 3 Watts, 333; Harger v. McMains, 4 Watts, 418. This rule may be considered to have been, to some extent, modified as to stocks, railroad bonds and other securities of a similar nature, by the cases of The Bank of Montgomery v. Reese, 26 Pa. 143; Reitenbaugh v. Ludwick, 31 Pa. 131; Persch v. Quiggle, 57 Pa. 247, and perhaps others.”

In Coningham’s Appeal, 57 Pa. 474, it is said by the same judge : The stocks were still a mere pledge; their dividends! and accretions belonged to the pledgor. After the unauthor-.', ized sale of them to third persons, they are also in equity chargeable with what would have been received had they retained them, as they ought to have done until the equity of redemption in the complainant was foreclosed by a sale after notice in the manner prescribed by law. It follows that they must account to the plaintiff and the appellant for the value of the stock at the highest rate which it has at any time since attained in the market.”

It is contended however by the appellants that such measure of damages cannot be applied in the present case because no specified time was fixed for the delivery of the stock wrongfully converted. The appellee reserved the right to sell it upon any occasion that he might desire to do so, intending to provide for a sale in case the prices of the stock market should at any time induce him to conclude to do so, and thus each day was , understood and intended for such delivery, if the appellee so desired and with the duty so to deliver, the sale was a distinctive refusal to. do so. A different conclusion, where stocks are thus pledged, might cause a sacrifice without any regard whatever for the rights of the pledgors and when so sacrificed they might be substantially remediless. It is also contended that there could be no recovery because there was no demand or tender by appellee. The appellants sold the stock pledged by the appellee without notice to him or authority from him to do so. They gave him notice that they had sold and they gave him a statement of the results of such sale. He promptly called upon appellants and denied their authority to make the sale and then stated that he had always been ready to protect his loan for which the stocks were pledged and that he was still ready to do so. If they sold and parted with the stocks under the circumstances shown, without' authority of appellee and without notice to him of their intended action, a tender on the part of the appellee became unnecessary. Such conversion dispensed with the necessity of any tender before suit brought. A tender'would have been a vain and useless act, “ Lex neminem cogit ad vana .’seu inutilia.”

It is clear that if the measure of damages as above stated had been applied in the present case the verdict would doubtless have been greatly in excess of what it was, probably to an extent almost double. The learned trial judge in fixing a lower standard for the measure of damages from which the jury found a smaller verdict than otherwise they would have been warranted in finding, cannot successfully be charged with doing that which was harmful to appellants. On the contrary they were advantaged by it and if so it is no ground for reversal.

The assignments of error are not sustained and the judgment is affirmed.


text:
    Hawn v. Stoler, Appellant.

      Wills — Donatio mortis causa — Gift—Chose in action — Delivery—Assignment. ' .

    The law does not look with favor upon gifts causa mortis, and nothing can be sustained as such-unless it is purely and strictly so. If the subject of the gift is a chose in action, there must be an assignment or some instrument equivalent thereto to perfect the delivery.

      Where testatrix has placed a fund of money in the custody of another person merely for safe-keeping, and such person has deposited the fund in bank in his own name, testatrix cannot subsequently make a valid donatio mortis causa by word of mouth without an assignment or some instrument equivalent thereto.
    Argued March 7, 1904.
    Appeal, No. 118, Jan. T., 1903, by défendant, from judgment of Superior Court, Oct. T., 1902, No. 151, reversing judgment of C. P. Franklin Co., Feb. T., 1901, No. 83, for defendant non obstante veredicto in case of Mary Hawn v. Samuel M. Stoler, Executor of A. B. Stoler, Deceased.
    Before Mitchell, ' C. J., Fell, Brown, Mestrezat and Potter, JJ.
    Reversed.
    Appeal from Superior Court. See 22 Pa. Superior Ct. 307.
    The facts appear by the opinion of the Supreme Court.

      Error assigned was the judgment of the Superior Court.

      J. R. Rnthrawff, with him J. S. Omwake and W. TJ. Brewer, for appellant.
    The money remained in the hands of the donor’s agent and within the control and dominion of the donor until her death. This is fatal to plaintiff’s claim. The title must pass out of the donor absolutely and irrevocably at the time of making the gift, and must vest presently in the donee in the lifetime of the donor. It must be such title as the donee could assert against the world including the donor. The latter herself could not recall the gift unless she recovered : Campbell’s Estate, 7 Pa. 100; Walsh’s App., 122 Pa. 177; 3 Pomeroy’s Equity sec. 1146; Thornton on Gifts, page 110.
    In all gifts causa mortis, delivery must be made for the express purpose-of consummating the gift, and a previous and continuing possession of the donee is not sufficient: Drew v. Hagerty, 81 Maine, 231, reported in 3 L. R. A. 230 (17 Atl. Repr. 63); Hatch v. Atkinson, 56 Maine, 324; Lane v. Lane, 76 Maine, 521; Parcher v. Sav. Inst., 78 Maine, 470 (7 Atl. Repr. 266); Dunbar v. Dunbar, 80 Maine 152 (13 Atl. Repr. 578); Miller v. Jeffress, 4 Gratt. 472; French v. Raymond, 39 Vt. 623; Cutting v. Gilman, 41 N. H. 147; Delmotte v. Taylor, 1 Redf. 417 (Egerton v. Egerton, 17 N. J. Eq. 419; Kenny v. Public Admr., 2 Bradford, 319; Dickes chied v. Exchange Bank, 28 W. Va. 340; Walsh’s Appeal, 122 Pa. 177.

      Walter K. Sharpe, of Sharpe Elder, for appellee.
    April 11, 1904:
   Opinion by

Mr. Justice Potter,

This was an action of assumpsit by Mary Hawn against A. B. Stoler, to recover the sum of $300 as a donatio causa mortis alleged to have been made to plaintiff by Catherine J. Little, and which subsequently came into the hands of defendant.

Upon the trial the learned judge of the court of common pleas directed the jury to find a verdict for the plaintiff, subject to the question of law reserved, whether there was any evidence in case upon which the plaintiff is entitled to recover. Judgment was afterwards entered for the defendant non obstante veredicto. Upon appeal to the Superior Court, this judgment was reversed.

The material facts upon which the controversy arose are not in dispute. Mrs. Little lived in Waynesboro, Pa. On June 21 she was very sick at her home. She sent for her neighbor, Mrs. Slentz, and committed to her keeping a sum of money, amounting to $595. This money was taken by Mrs. Slentz to her home and given to her husband, and he took it to a bank, and deposited it, taking therefor a certificate in his own name. The certificate was not returned either to Mrs. Slentz or to Mrs. Little. The next morning the two women took the train for Baltimore, where Mrs. Little entered a hospital, and upon the evening of the next day, which was June 23, she died. Mrs. Slentz says that in the afternoon, she saw that Mrs. Little was dying, and that she said to her, “ I may go home this evening and I don’t know what to do with that money; we don’t know what might happen.” Mrs. Little said, “Yes, you know it goes very hard for me to talk.” I said, “ yes, I know it does, but I have this money in my possession and I would not know what to do with it if you did not tell me.” Mrs. Little then said, “ You give $300 to my sister, Mrs. Hawn,” etc.

This conversation upon which the plaintiff relies to establish the gift, took place in the hospital in Baltimore. Mrs. Hawn, the donee, was not present, and the fund from which the gift was to be made was not then in the possession of Mrs. Little or of Mrs. Slentz, but was on deposit in the bank at Waynesboro, in the name of Mr. Slentz, and they did not even have the certificate, which was the evidence of the deposit, with them ; nor does it appear to have been indorsed or assigned by Mr. Slentz.

When the money was given to Mrs. Slentz it was for safekeeping only, and there is nothing to indicate- that- Mrs. Little had then in mind any thought of making a gift of it to any one. It passed completely out of her possession, and out of the possession of the party to whom she gave it and found its way into the bank, where it was deposited in the name of a third party. The money was thus transformed from a chattel in the possession of Mrs. Little, presumably with her consent, into a chose in action. She did not have in her possession any evidence of the ownership of the deposit. If she had held a certificate of deposit, or any equivalent evidence of the ownership of the fund, she would have had something to deliver or transfer, but as it was, she had nothing of the kind.

So long as she had the gold or paper money in her possession, she had a visible, tangible thing; but when she passed it over to another and that other, presumably with the consent of the donor, handed it to still another person, who in turn deposited it in bank, the right which remained in Mrs. Little could not in any sense of the word be held to be anything more than a right of action to recover the amount of the money from the party who held it. Therefore, when she was in the hospital in Baltimore, she had nothing to give except a chose in action, and to transfer this, the law requires an assignment or some equivalent instrument, and the transfer must be actually executed: 2 Kent’s Com. 439.

Undoubtedly a valid gift might have been made of a chose in action had it been properly assigned or transferred. Had it been evidenced by a note, bond, certificate or any other instrument capable of indorsement or actual delivery, and had that instrument been present, and duly assigned by Mrs. Little when she attempted to make the gift, there would have been ground upon .which to contend that there was an actual delivery.

In Fross’s Appeal, 105 Pa. 258, it was said: “ The delivery must be according to the nature of the subject, and the donor must in some form relinquish not only the possession but all dominion over it.”

The doctrine that an assignment or some instrument equivalent thereto is necessary to perfect the delivery of a chose in action is distinctly affirmed by Sharswood, J., in Bond v. Bunting, 78 Pa. 210.

The law does not look with favor upon gifts causa mortis, and under all the authorities nothing can be sustained as such unless it is purely and strictly so. Delivery is in all cases indispensable, but whether to the donee immediately or to another for him is immaterial: Michener v. Dale, 23 Pa. 59; Wells v. Tucker, 3 Binn. 366.

Without an act of delivery, an oral disposition of property in contemplation of death could be sustained only as a nuncupative will, and in the manner and with the limitations provided for such wills : Drew v. Hagerty, 81 Me. 231.

. When the words of gift were uttered by Mrs. Little in the hospital, as is well said by counsel for appellee, the subject-matter was incapable of being delivered at that time by her to any one, because neither the money nor the certificate of deposit was present. But it is urged in the argument that the delivery of the money to Mrs. Slentz, two days before was sufficient, even though at that time no intention to make a gift was entertained by Mrs. Little. We cannot assent to this proposition. Nothing short of clear and explicit evidence of delivery in furtherance of an intention to make the gift will answer the purpose. When the money was delivered to Mrs. Slentz it was certainly not for the use of any intended donee. Hud she retained the money specifically in her possession, and under her control, so that actual delivery of it as a chattel could have been made when the intention to make a gift was manifested, the case would have been very different. But Mrs. Little and her agent had by their actions put it out of her power to make any actual delivery of the money as a chattel in possession, at that time. By the deposit of the money in the bank, there was substituted for it, on the part of Mrs. Little, a mere right of action, .and it is clearly apparent that the requirements necessary for the valid transfer of a chose in action were not complied with by her.

We are not disposed to favor any relaxation of the law in aid of a gift causa mortis. Reason and the weight of authority-are opposed to it. Tilghman, C. J., said in Wells v. Tucker, supra: “ These donations do in effect amount to a revocation pro tanto of written wills, and not being subject to the forms prescribed for nuncupative wills, they are certainly of a dangerous nature.”

We are clear that there was not in the present case a delivery of the subject-matter intended to be conveyed, and without it there could be no valid gift. The assignment of error is sustained.

The judgment of the Superior Court is reversed and the judgment of the court of common pleas is reinstated and affirmed.


text:
    Fenn, Appellant, v. McCarrell.

      Equity — Referee’s findings of fact — Review.
    A referee’s finding of fact in an equity suit, that a particular fund had been divided among the parties to the suit without fraud, will not be reversed, where such findings are based upon sufficient evidence, and confirmed by the court below, and no manifest error is made to appear.

      Contract — Champerty—Fruit of litigation.

    While contracts by litigants with others in consideration of aid given to share in the fruits of litigation are not looked upon with favor either at common law or in equity, it cannot be said that in Pennsylvania they have been regarded as so contrary to public policy, as to be certainly void.
    Argued March 21, 1904.
    Appeal, No. 150, Jan. T., 1903, by plaintiff, from decree of C. P. No. 2, Phila. Co., June T., 1898, No. 608, dismissing bill in equity in case of James V. Penn v. Samuel J. M. McCarrell et al.
    Before Dean, Fell, Bkown, Mestkezat and Thompson, JJ.
    Affirmed.
    Bill in equity for an account.
    The bill charged in substance that the defendants jointly combined to distribute in fraud of the rights of the plaintiff a certain fund amounting to $33,196, being the amount of a judgment obtained by the plaintiff Fenn against William Dickey and others in a proceeding in the court of common pleas of Jefferson county, affirmed by the Supreme Court (see Fenn v. Dickey, 178 Pa. 258), in particular, charging that in such wrongful distribution the defendant Barton Pardee had received the sum of $3,000, the - defendant Harry A. Hoopes the sum of $10,949.35, the defendant J. Rider Cady the sum of' $4,500, the defendant Samuel J. M. McCarrell $4,500, and the defendants David Fleming’s executors $4,195.65, and the plaintiff had only received the sum of $2,000, the balance of said fund being distributed in a manner to which the plaintiff did not object, whereas in fact the plaintiff charged said Pardee was not, entitled to receive more than $50.00, the said Hoopes not more than $3,000, the said McCarrell not more than $608 and the said Cady not more than $2,008.80, and the said Fleming’s executors nothing, and that the balance of said funds, except as above specified, should have been received by the plaintiff.
    The defendant Cady is a resident of the state of New York, upon whom no process was served and by whom no answer was filed. The other defendants filed answers admitting the receipt by themselves respectively of the moneys specified, but denying all charges of fraud or conspiracy and specifically asserting their right to receive the moneys thus paid to them and the plaintiff’s assent to the distribution at the time it was made, on January 15, 1895.
    The case was referred to Richard C. Dale, Esq., who reported in part as follows :
    The case as presented is an effort upon the part of the plaintiff to undo two independent settlements, one made between himself and the defendant Barton Pardee, the other between himself, of the one part, and the defendants Hoopes, Cady, McCarrell and the estate of David Fleming of the other part.
    There is no relation between these two settlements except that they were made on the same day and arose out of the same general fund, and the point was made on behalf of Barton Pardee that the joinder of these questions in one bill rendered it multifarious and defective in law. The point was probably raised at too late a stage in the cause to have any legal force, and in the view which the referee takes of the merits of the case it is not necessary to further refer to it except to call attention to it. Each settlement was, however, sufficiently independent of the other to render it proper that such settlement should receive independent consideration.
    THE PARDEE SETTLEMENT.
    It will be sufficient to call attention to the main feature of the situation as it existed when the parties met at McCarrell’s office at Harrisburg on the afternoon of January 15, 1897.
    Messrs. Stewart and W. N. Conrad were there from Brook-ville with bank paper amounting to $29,145, representing the balance of the fund collected on account of the judgment of James V. Fenn against Dickey et al. After deducting the fees of Stewart and Conrad, as to which there is no contention, they had brought these funds to Harrisburg under explicit instructions from John Conrad not to make any payments or distribution until the foreign attachment which Pardee had placed upon them, and also the bill in equity filed in Jefferson county, was discontinued.
    Pardee was there represented by counsel, both at Brookville and Harrisburg, Messrs. Jenks, Kress and Weiss and Gilbert, whose good faith in asserting Pardee’s claim for $6,000 is not questioned.
    Fenn was there, and the uncontradicted evidence is that he was supported in his contention that Pardee’s claim was without merit by McCarrell, Cady and Hoopes. There is nothing in the evidence to suggest that these last named defendants failed in any respect to stand with Fenn, both in the contention and subsequent negotiation which led to the settlement. The averment of the bill charging a conspiracy between Pardee and the remaining defendants is without a scintilla of evidence to support it. Indeed, plaintiff’s counsel, who, through this most difficult and unpleasant litigation, has sought to protect and enforce the interest of his client with a zeal and intelligence which is worthy of the highest commendation, rested his argument in this aspect of the case not so much upon any proof of actual conspiracy, as upon the ground that the claim of Barton Pardee was so clearly devoid of merit as to render his action in pressing it in connection with the circumstance, that by so pressing it the entire fund was tied up, was per se fraudulent and so inequitable as to justify a chancellor • to reopen the settlement and compel restoration of the booty.

      While such an argument might appeal to the sympathy of the court, particularly under such circumstances as are disclosed in the record where the plaintiff admittedly has received very little personal benefit from his large recovery against Dickey et al., a chancellor as well as a court of law must "decide causes according to established principles, and there are obstacles in the way of plaintiff obtaining the relief which cannot be disregarded.
    1. It cannot be said that Pardee might not have recovered in the enforcement of his claim for a one sixth interest in the proceeds of the verdict.
    It is true that contracts by litigants with others in consideration of aid given to share in the fruits of the litigation were not looked upon with favor either at common law or in equity, but it cannot be said that in Pennsylvania they have been regarded as so contrary to public policy as to be certainly void.
    In Grove v. McCalla, 21 Pa. 44, it appeared that McCalla was employed by Grove to get the 'witnesses into court in a suit brought by Grove against one Marsh; it also appeared that McCalla was examined as a witness for the plaintiff at the trial of that suit. Grove had promised to pay McCalla $ 100 for the services rendered by him, to be paid when the suit against Marsh was settled and the money paid. A recovery was had against Marsh, the money collected, and then McCalla sued Grove.
    At the trial the counsel of Grove asked the judge to charge that if a plaintiff in a suit at law promises one of his own witnesses, who is afterwards examined in the cause on the plaintiff’s behalf, to give him, the witness, a sum of money beyond his witness fee for his services in the cause, when he, the plaintiff, gets his money from the defendant in the cause in which the services are to be rendered, that the .promise is against the policy of the law, and as such a nullity, and cannot be recovered on.
    The judge charged that if the defendant employed the plaintiff to attend to subpoenaing witnesses, and other duties connected with a suit pending, undertaking to pay him a sum certain out of the money recovered in the suit, there is nothing in the policy of the law to prevent the plaintiff from recovering, notwithstanding the fact he was also examined as a witness in the case.
    This judgment was affirmed, the court saying that the contingent interest which McCalla had in the recovery, if it had been disclosed at the trial, would have been a matter going to his credibility, but that it could not be set up to prevent recovery on the express promise.
    In Perry v. Dicten, 105 Pa. 88, a contract between an attorney at law and his client for a contingent fee was sustained, notwithstanding that it appeared that at the time the promise was made it was understood by both parties thereto that the attorney was an indispensable witness on behalf of his client, and that it was expected that as such witness he would testify. It is true that the transaction was one which did not meet with favor even in the majority of the ceurt which sustained the contract, and three of the judges dissented.
    But these two cases show that whatever may be our professional view as to the impropriety of any arrangements made between parties and expected witnesses for contingent compensation dependent upon the result of litigation, it cannot be said with certainty that such contracts are void.
    In Chester County v. Barber et a.l., 97 Pa. 455, the uncertainty of the law upon this question is shown by a sentence taken from the opinion of Mr. Justice Paxson at page 463, where he says:
    “Nor need we stop to consider whether the agreement as set out in the narr. 'is champertous, nor whether the English statutes in regard to this offense are in force in this state.”
    The agreement under consideration was one by county commissioners employing counsel to collect certain claims due the county and to pay counsel a contingent fee of fifty per cent of the recovery.
    This case of course has no direct bearing, but the quotation from the opinion of the court is given for the purpose of showing that the law upon this general subject has never been settled.
    In this uncertain condition of the law, counsel for Pardee might well assert his claim under his contract with earnestness, and counsel for Fenn, while disputing the propriety of the claim under all the circumstances of the case might well have felt there were serious difficulties in the way of maintaining their defense at law, and when, as appears from the testimony, Mr. Fenn authorized a settlement not exceeding $8,000, counsel might wisely conclude that it was to the interest of their clients to bring about a settlement on that basis.
    2. A compromise having been made with what appears to the referee to have been a clear understanding of the material facts on both sides and Pardee having abandoned the assertion of his full claim, discontinued his attachments and dismissed his bill in equity in consideration of receiving $3,000, a court of equity has no power to reopen the settlement thus made in a case where the contract of settlement appears to have been the voluntary and executed act of both parties thereto.
    The learned counsel for the defendant Pardee supported the legal position of his client by reference to certain other propositions of law which possibly are applicable and which if necessary might be successfully invoked in bar of the prayer of the complainant, but the referee being of the opinion that as against Pardee the plaintiff has failed to maintain his bill, refrains from the discussion of legal propositions as to the applicability of which there might be some difference of opinion.
    The referee therefore reports as to defendant Pardee, the bill should be dismissed with costs.
    AS TO THE CLAIM AGAINST FLEMING’S ESTATE.
    The discussion of this branch of the case in some degree involves a consideration also of the facts which are material to the discussion of the claims against McCarrell and Hoopes. The facts which are material have been found. The Pardee claim having been disposed of at the afternoon session, the parties again met at MeCarrell’s office after supper; Stewart and Conrad still had in their possession the remainder of the fund, to wit: $26,145. After a long discussion between the parties, in which it first appeared that the claims of those adverse to Fenn would leave nothing for him, about or shortly before midnight, Fenn, McCarrell and Hoopes joined in a writing, in which Messrs. W. F. Stewart and John Conrad & Son were requested to pay to Cady and McCarrell, attorneys, this sum of $26,145. This was thereupon done. The distribution of this money by McCarrell and Cady at a later hour of the night was pursuant to the written instructions of the plaintiff, and by that writing the plaintiff agreed that the executors of David Fleming’s estate should receive the sum of $4,195. That Fenn owed to the estate of David Fleming at least that sum is a fact, which upon the evidence is not open to doubt, and, in addition to the moral obligation which every debtor owes to apply his assets, when received, to the payment of his debts, the right of Fleming’s estate specifically to receive payment of this indebtedness out of this fund is evidenced by the written agreement of Fenn, under seal, dated August 2, 1888. We have therefore the facts:
    1. That Fenn owed the money and had continued to owe it for nearly ten years without ability to pay it; and
    2. That in 1888 he had evidenced his willingness to appropriate this fund to the payment of his indebtedness to Fleming by a formal writing, executed under seal; and
    Finally, on the night of distribution he made effective both his moral obligation and his legal duty by a writing directing the custodian of the fund to apply the sum of $4,195.65 to the payment of this debt.
    Under-these circumstances the referee is unable to see what basis there is for any complaint on the part of Fenn, except that disappointment of feeling which a man, whom the record shows for many years had been very impecunious, would experience in seeing a fund which arose out of a transaction in which he was the principal passing from under his control. Whatever sympathy may be felt for the plaintiff in his failure to retain that portion of the fund which, by reason of his improvident contracts, was distributed to Pardee and Hoopes, the referee deems it proper to say that the distribution of so much of the fund as went to Fleming’s estate went where both in law and good conscience it ought to go.
    The referee is, therefore, of opinion that as to the claim for the recovery of any portion of the money distributed to the estate of David Fleming the bill should be dismissed.
    Exceptions to the report of the referee were overruled, and a decree entered dismissing the bill.

      Error assigned was the decree of the court.

      Charles H. Edmunds for James V. Fenn, appellant.-

      Alex Simpson, Jr., with him Charles L. Brown, for Samuel J. M. McCarrell, H. A. Hoopes and the estate of David Fleming, deceased.

      W. C. Kress, with him S. Davis Page, for Barton Pardee, appellee.
    April 11, 1904:
   Per Curiam,

The plaintiff obtained a judgment in common pleas of Jefferson county against William Dickey and others, in the sum of $38,196 which was affirmed by this court: Fenn v. Dickey et al., 178 Pa. 258. All of defendants had an interest in the judgment. After its affirmance it was collected and the amount was by mutual arrangement divided among them, Pardee receiving $3,000, Harry A. Hoopes $10,949.35, J. Rider Cady $4,500, Samuel J. McCarrell $4,500, David Fleming’s executors $4,195.65, and plaintiff James Fenn $2,000. This distribution was made about January 15, 1895. Afterwards on July 8, 1898, plaintiff Fenn filed this bill against defendants charging them with fraud in the distribution, averring that Pardee was entitled to receive only $50.00, Hoopes not more than $3,000, McCarrell not more than $608, Cady not more than $2,008.80, and that Fleming’s executors should have received nothing. To this bill all the defendants except Cady, who was not served, appeared and answered denying all the material averments of the plaintiff’s bill, and specifically averring their right to be paid the several sums received by them, and specially averring plaintiff’s assent thereto at the date of distribution. The issue thus made up was referred by agreement of parties under the act of 1874 to Richard C. Dale, Esq., as referee to take testimony, find facts, announce conclusions of law and suggest decree.

He had many hearings, and with much deliberation found the facts in fifty-one separate and distinct specifications. To nearly all of them he appends the reasons on which he bases his conclusions, and to some of them sets out the correspondence and other evidence. Under our well known rule, unless manifestly erroneous, w'e would not touch any one of them. After careful examination of the evidence we do not find that any of them áre tainted with‘error. That his conclusions of law, on these facts are sound, irresistibly follows. On his opinion setting out these conclusions the decree of the court below is affirmed and the appeal is dismissed at costs of appellant.

The findings of fact take up thirty-eight printed pages of appellant’s paper-book, his conclusions of law nineteen pages more. While the elaborate report of these findings and conclusions was necessary for a proper review of the case in this court, they are not otherwise important to the legal profession or to other than the parties. The full publication of them would only incumber the printed reports with useless matter. We therefore direct that the decree be affirmed on that part of the opinion embodying the referee’s general conclusions, as set out on pages sixty-six to seventy-two inclusive of appellant’s paper book.