text:
    Hazen et al. versus The Commonwealth.
    1. The Supreme Court on application of defendants in a criminal proceeding may direct a writ of error to be returnable to another District than that in which the indictment was tried, the jurisdiction of the Court under the constitution extending over the state, and the Act of 14th April, 1834, dividing the state into judicial districts, not being designed and would be ineffectual to contract its limits.
    2. A conspiracy entered into to induce and procure other persons to do an act prohibited under a penalty by statute, is an indictable offence, whether the object was effected or not.
    3. In an indictment for such an offence the particular means by which it was to be accomplished, not being material ingredients in the offence, need not be set out in the indictment. The conspiracy to effect such an object is indictable, whether any acts be done in pursuance of it or not.
    4. On error every material allegation in an indictment must be taken as true.
    5. A conspiracy was indictable which was entered into to solicit, induce, and procure certain persons named, stated to be officers of a bank, and others, to violate and disobey the 48th and 49th sections of the Act of 16th April, 1850, prohibiting under penalties the circulation in Pennsylvania of foreign bank-notes of a less denomination than five dollars, one of them prescribing certain money penalties, and the other declaring the persons guilty of the offence to be also liable to indictment.

    6. In an indictment for such offence the means by which it was to be accomplished need not be set out.
    7. If an indictment contain several counts in only one of which an indictable offence is charged, it is sufficient after conviction generally to sustain the sentence.
    Error to tbe Court of Quarter Sessions of Allegheny county.

    The Supreme Court sitting at Harrisburg in tbe Middle District of the Court, on May 17, 1854, on application of counsel of defendants, granted a special allocatur in this case, returnable before the said Court on tbe 1st June, at Harrisburg, where tbe case was subsequently argued.
    Hazen, Morris, Davis, and Lawson, two or more of whom were citizens of Ohio, were indicted for a conspiracy to solicit, induce, and procure the president, cashier, and directors of The Farmers’ Deposit Bank of Pittsburgh, and other persons named, to violate the 48th and 49th sections of the Act of Assembly of 16th April, 1850, entitled An Act regulating banks. The 48th section provides that it shall not be lawful for any person or persons, corporation or body corporate, to issue, pay out, pass, exchange, or put in circulation, &c., any bank-note, note, bill, &e., issued or purporting to be issued by any bank or incorporated company or association of persons-not located in Pennsylvania, of a less denomination than five dollars. It provides that every violation by a corporation shall subject it to the payment of $500; and a violation by a public officer shall subject him to the penalty of $100; and that the violation by any other person, not being a public officer, shall subject him to the payment of $25; one-half to go to the informer, and the other half to the county in which the suit is brought, and may be recovered as debts of like amount are recoverable.
    In the 49th section it is provided that, in addition to the civil remedies imposed by the 48th section, every person who shall violate the provisions of that section shall be deemed to have committed a misdemeanor ; and upon conviction may be fined in any sum not less than one dollar and not more than $100.
    The indictment contained eleven counts. In the first count, the defendants were charged with a conspiracy to solicit, induce, and procure James Marshall, the president, and others named as directors, and John Magoffin, the cashier, of the Farmers’ Deposit Bank of Pittsburgh, to violate and disobey the 48th and 49th sections of the Act of 16th April, 1850, referring to the Act by its title, &c., and setting out the said sections. In pursuance of which combination it was alleged that Davis deposited large sums of money not for the purpose of lawful business, and drew them by checks for unequal sums, and then and there unlawfully requested the said checks to be paid' in bank-notes of a less denomination than five dollars, &c., and then and there caused to be passed to him and Morris a number of bank-notes of a less denomination than five dollars, and describing certain of the notes.
    In the second count was charged a conspiracy to extort money from the president, cashier, and directors; and, as overt acts, referred to Davis’ depositing money, and he and Morris drawing it out by checks for unequal sums,’ requesting the payment in small notes and procuring fourteen small notes, Ilazen threatening to bring penal action unless the president, &e., paid $3250.
    In the third count was charged a conspiracy to defraud the county of Allegheny, by an offer to compromise by taking half of the penalties.
    In the fourth was alleged a conspiracy to extort money from John Magoffin, the cashier of the Farmers’ Deposit Bank; and, amongst the overt acts, stated threats made to bring a great number of suits unless $3500 was paid by him.
    The fifth was a general count, to induce the president, cashier, and-directors of t.he Farmers’ Deposit Bank to violate the 48th and 49th sections of the Act as aforesaid, and thereby then and there cause them to pay great sums of money and expose them to the pains and penalties of an indictment.

      Sixth count. Conspiracy to extort money from the president, cashier, and directors of the Farmers’ Deposit Bank of Pittsburgh, and payment of notes to defendants by said bank, and threats to bring suits unless $3500 was paid.

      In the seventh count — General count, to cheat and defraud the county of Allegheny; agreement to accept $3250. (In this count no time was laid within which the offence was committed.)
    In the eighth count, conspiracy to cause Kramer, Rahm & Co., to violate the 48th and 49th sections of the small note law. Overt act — Morris and Davis going to their banking-house and buying currency; request of Morris to receive small notes; 40 notes paid out.
    In the ninth count, conspiracy to induce Nathaniel Holmes and Thomas R. Holmes to violate the law. Overt acts — Morris and Davis going to the banking-house and purchasing $60 in small notes; requesting currency.
    In the tenth count, conspiracy to induce II. D. King to violate the law. Overt act — Davis and Morris going to the banking-house of H. D. King and requesting small notes in exchange for par; 60 notes obtained.
    In the eleventh count, conspiracy to induce the Allegheny Saving Fund Company to violate the law. Overt acts — Lawson furnishing money to his co-conspirators; David F. Davis opening an account with the bank and drawing money; Morris with him and present when the money is paid.
    A motion was made to quash the indictment on the grounds as follows: — 1st. That the indictment does not set forth an indictable offence. 2d. That in an indictment for conspiracy to accomplish an end or purpose by solicitation, inducement, and procurement, the means as set forth to be employed therefor ought to be charged in the body of the offence, and not as having been done in pursuance thereof, and it is not sufficient to charge them as overt acts. 3d. That the means or overt acts as charged, even if properly set forth, do not make any criminal offence, because they are not necessarily in pursuance of such conspiracy. 4th. That the offence charged is a conspiracy to do a legal act by illegal means, and in such cases the indictment should show on its face the means alleged to have been used, and they should of themselves be illegal.
    In support of the motion, reference was made to the cases of Commonwealth v. Hunter, 4 Metcalf 125; People v. Lambert, 9 Cowen 594, 53 Com. Law 806, 808; Randolph v. Commonwealth, 6 Ser. & R. 398; Hartman v. Commonwealth, 5 Barr 60; Megargell v. Hazleton Coal Company, 8 W. & Ser. 346. Wharton’s Criminal Law was referred to to show the propriety of making this motion, at this stage of the ease.
    On part of the Commonwealth, reference was made to the opinion of Gibson, J., in Commonwealth v. Carlisle, Brightly 36, 39, 40; 3 Greenleaf’s Ev. 82, as to the definition of conspiracy; also Commonwealth v. Spearing et al., Brightly 315.
    April 15, 1854, verdict of guilty on all of the counts except the ninth. A motion was made for a new trial, and in arrest of judgment. A number of the reasons assigned applied to the admission of testimony, and others to the charge of the Court. The reasons assigned for an arrest of the judgment, were
    1. All the counts in the indictment are defective for vagueness and want of precision in the description of the offence; and there is no offence duly, properly, and legally set forth in the indictment.
    2. All the counts are defective, in not stating, in the charging part of the indictment, the means concerted or agreed upon for accomplishing the object of the alleged conspiracy.
    3. None of the acts of the defendants, set forth in the various counts of the indictment, having been done in pursuance of the alleged conspiracy, are in themselves illegal, wrongful, or unusual, or reasonably tending to coerde the will of the subjects of said conspiracy, or to influence or tend to influence them to a violation of the law prohibiting the issuing of foreign bank-notes of a less denomination than five dollars.
    4. The third and seventh counts of the indictment charging a conspiracy to defraud the county of Allegheny out of her share of tibe penalties, are defective, in not averring such matters and things as would show that, under the statute, said county had acquired an interest in, or right to, any portion of said penalty; and in not averring that the' county had an interest therein; and there is no offence known to the law set forth in said counts, which do not charge a conspiracy at common law, to defraud by means of false tokens; or by statute, to defraud by means of false pretences.
    5. The counts charging the defendants with having conspired “to solicit, induce, and procure” the corporations and brokers therein named to issue such notes, are defective in not describing the means whereby that object was to be effected; as, for example, falsehood, threats, intimidation, promises of secrecy, or any acts calculated to coerce the will of the subjects of said conspiracy.
    6. The counts charging the defendants with having conspired to extort money from the Farmers’ Deposit Bank, or J. Magoffin, the cashier thereof, are bad and defective, for vagueness and want of precision in the description of the offence; and also in not describing the means concerted for accomplishing the object; and because the overt acts of the defendants, stated to have been done in pursuance of said conspiracy, are not unlawful, or reasonably tending to coerce or affect the will of the subjects thereof, so as to induce them involuntarily to pay money.
    7. In the fourth count no time is laid, at or within which the offence was committed.
    8. In the seventh count Andrew T. Lawson, and not David T. Lawson, is charged to have committed the offence.
    Verdict of guilty against all of the defendants upon all the counts in the indictment except the ninth.

    The judgment was arrested on the 4th and 7th counts. Each of the defendants was sentenced to pay a fine of $100 and the costs, and to imprisonment in the jail for three months.

      Counsel for the Commonwealth were Roberts, District Attorney, Elanegin, Hampton, Howard, and Stokes.

    For the defence. — Darragh, Cf. P. Hamilton, T. B. Hamilton, and Ewing.

    It was assigned for error, 1. The Court erred in overruling the motion to quash the indictment; 2. In overruling the motion in arrest of judgment, and in entering judgment.

      Gr. P. Hamilton, for the plaintiffs in error.
    The indictment contains eleven counts, which, for convenience, may be divided into three classes, according to the nature and objects of the alleged conspiracies. In the first class the defendants are charged with having unjustly combined, conspired, confederated, and agreed together, to “induce, solicit, and procure” James Marshall, president, and the other officers of the Farmers’ Deposit Bank, Henry Irwin, president, and the other officers pof the “ Allegheny Saving Fund Company,” Kramer & Rahm, brokers, and N. Holmes & Son, brokers, to violate and disobey the 48th and 49th sections of the Act of 16th April, 1850, prohibiting the issuing and circulating of notes of foreign banks of less denomination than five dollars. The above is substantially the charging or conspiracy part of the counts included under the first class. The various counts included in this class set out the following as the overt acts done in pursuance of the conspiracy, viz.: depositing with the hanks and brokers named, sums of money and checking the same out in uneven sums, so as to compel, in the language of the indictment, the subjects of the alleged conspiracy to pay out the fractional portions of said checks in unlawful money.
    We allege that the counts embraced in this class are defective for vagueness and want of precision in the description of the offence; and that they do not set forth any offence at all — cited case of Hartman v. The Commonwealth, 5 Barr 60; Regina v. Parker, 43 E. C. L. R. 741; 1 P. & Dav. 508; 9 Cowen 578; 1 Cushing 189, Commonwealth v. Eastman. The case of O’Connell v. The Queen, was cited to the point that the word intimidate did not necessarily import a bad sense. Neither do the words “induce and solicit” used in this indictment. To constitute a conspiracy, the purposes to he effected by it must be unlawful; and where the object is not unlawful, but the means of effecting it are so, the means should be set out in the confederacy part" of the indictment: 4 Metcalf 125, Commonwealth v. Hunt; 9 Cowen 594, People v. Lambert. Though the object attributed to defendants was to induce a violation of law, yet it was manifest that the ultimate object was to obtain the penalties, and if so, the design was not unlawful in its nature and object: 3 Greenleaf 89; and where a conspiracy consists in the means of accomplishing its object, the means must be unlawful per se, and they must be set out.
    2d class. — In the second class of counts is charged a conspiracy to extort sums of money iyom John Magoffin, cashier, &e., and from the bank itself. Hawkins says, “ extortion is the taking of money by a legal officer, by color of his office, that is not due, or more than is due.” In this indictment the term is not used in its technical or common law signification, but in its usual and ordinary meaning. If this were an indictment for the perpetration of the offenee, it would have to set forth the aets and circumstances of which the offence was constituted: Hartman v. Commonwealth, 5 Barr. If the overt aets charged were set forth in the confederacy part of the indictment, as descriptive of the offence, they would not amount to extortion technically or morally.
    3d class. — In the third class of counts is charged a conspiracy to defraud the county of Allegheny out of her share of the penalties incurred by the Farmers’ Deposit Bank in issuing the fourteen small notes described in the indictment. The overt acts charged under this branch of the conspiracy, consist in Hazen going to Wellsville in company with some of the officers of the bank, and there proposing to compromise by taking less than one-half of the whole penalty, and to burn or destroy the evidences of the bank having issued the notes. The indictment does not aver that the county of Allegheny had acquired any interest in the penalties incurred by the bank, nor does it allege that an action had been brought by any of the defendants to recover said penalties, or by anybody else: Commonwealth v. Hartman referred to. Unless the county had an interest in these penalties, a conspiracy to defraud her out of them would be impossible. In indictments for conspiracy to defraud another of his property, there must be an averment of title and ownership, and an identification of the property: Rex v. Fowle, 4 Car. & Pay. 592; Regina v. Kendrick, 9 Ad. & Ell. 686 (36 E. C. L. R.); Regina v. Parker, 43 Common Law 741. The cases of Lambert v. The People, 9 Cowen 578, and Commonwealth v. Eastman, 1 Cushing 189, are authorities against the sufficiency of the counts included in this class.
    Until action brought, the right to the penalty is ambulatory, and it cannot be predicated of any county or individual, that either has an interest in it. The action, too, like all other personal actions, is transitory, and may be brought in any county of the Commonwealth where a legal service may be had. But the Court below, on the authority of Brobst v. Bank of Pennsylvania, 5 W. & Ser. 379, held that the action for the penalty, if brought at all, must be brought in the county of Allegheny, and that, therefore, the county had acquired an interest in the penalty, the moment it was incurred by the bank. The case referred to does not establish any such principle. The county could not he defrauded out of that which did not belong to it. The substance of the charge to defraud the county of Allegheny, consisted in an offer to compromise with the bank before suit brought by taking less than half of the whole penalty, and yet it is held in the case of Megargell v. Coal Company, 8 W. & Ser. 342, that a qui tarn plaintiff may discontinue, receive and give acquittance, and may proceed or not, as he pleases, with the action.

      Roberts and Stokes, on part of the Commonwealth.
    Though not contested in this case, it was not admitted that the return in this case was regular.
    As to the allegation of vagueness, &c., in the counts, it is too late after trial on the merits. In the case of Commonwealth v. Hunt, 4 Metcalf 125, it was held, that, under proper circumstances, the Court may order a bill of the proof intended to bo relied on to be furnished to the prisoners. So also in R. v. Kenrick, 5 Ad. & E. 49; R. v. Hamilton, 7 C. & P. 448. Though persons may conspire to do an act injurious to the community or to individuals, if it be necessary to set out the acts agreed on by conspirators, yet, if they be not agreed on beforehand, they could not be convicted though they participated in them, and though they accomplished their object. There are offences created by statute relating to matters not immoral in themselves, but for the public good forbidden: King v. Lynn, 2 Term Rep. 723, case of a combination to take up dead bodies for scientific purposes. Conspiracies to do things forbidden by statute are indictable, without regard to the means made use of: 3 Harris 272; Whart. Crim. Law 674. The case of Rex v. Gill, 2 B. & Ald. 204, questioned or overruled in Rex v. Biers, 1 Ad. & El. 327, has since been affirmed. In an indictment for a conspiracy to commit an indictable offence, the means used need not be set out; but where the offence charged is not indictable, they must be stated: Whart. Crim. Law 675; Lewis Crim. Law 224; Id. 655; 8 Ser. & R. 420. An indictment is sufficient which simply avers that the defendants conspired together to cheat and defraud a bank of its moneys: Commonwealth v. Foering, 6 Law J. 281. Reference was also made to 3 Harris 272; 4 Barr 210; 2 Parsons 341; 9 Barr 211; 5 W. & Ser. 461.
    The object of the defendants was not to obtain the penalties; such position is negatived by the verdict.
    That to solicit, induce, or procure the doing of an indictable offence is itself indictable, reference was made to Rex v. Higgins, 2 East 5; Rex v. Vaughan, 4 Burr. 2494; Rex v. Plympton, 2 Lord Raymond 1377; Young’s Case, 2 East 14-16; Rex v. Butler, 6 C. P. 368; Rex v. Roderick, 7 C. & P. 795; 1 Russell on Cr. 46; 1 Hawkins 25, s. 3; State v. Knapp, 6 Conn.
      415; State v. Danforth, 8 Conn. 112; State v. Avery, 7 Conn. 267. And the particular means intended or used need not be set out in the charging part of the indictment, where the object of conspiracy is to induce the commission of an indictable offence: State v. Bartlett, 36 Maine (17 Shep.) 132; People v. Brush, 4 Hill 133; State v. Murray, 15 Maine 100; Commonwealth v. Harrington, 63 Bick. 26; Damarest v. Haring, 6 Cow. 76; State v. Keys, 8 Verm. 57; State v. Taylor, 3 Brevard 243; Whar. Crim. Law, p. 38, last edition; 4 Wend. 263.
    The term extort necessarily implies the adoption of illegal means: 6 D. & R. 345. A conspiracy to extort money is per se an offence at common law, and need not be charged to be attempted by unlawful means: 6 D. & R. 345; 4 B. & C. 329 ; 13 Law Jl. 131; 8 Jur. 662. It is indictable to attempt to extort hush-money, whether the charge be true or false: 7 Boston L. R. 58, Commonwealth v. Woods; Whar. Crim. Law 542.
    If the county of Allegheny had no right to the penalties, the defendants had none, and their pretence of claim was false. But the county had an interest, for there the place of business of some of the corporations was located, and there the liability was incurred, and the indictment charges a conspiracy to defraud the county. The 49th section of the Act of 1850 declares the passing of the notes in question a misdemeanor, and it is punishable only in the county where it was committed. But whether the allegation were true, or false, and whether the conspiracy resulted in injury or not was not material. The offence was complete when the corrupt engagement was closed.
    July 19, 1854,
   The opinion of the Court was delivered, by.

Lewis, J.

This case came before us at the Middle District, on a writ of error directed to the Court of Quarter Sessions of Allegheny county. As that county is part of the Western District, a question arises in relation to the power of this Court to hear and determine the cause out of its proper place. It is true that the parties do not raise the question; but as their consent cannot give jurisdiction, we are bound to ascertain, before we proceed, how far we have authority over the case. By the fourth section of the fifth article of the Constitution, it is expressly declared that the “jurisdiction of the Supreme Court shall extend over the state.” As the Constitution itself fixes the extent of our jurisdiction, it is plain that an Act of Assembly cannot contract its limits. But the Act of 14th April, 1834, dividing the state into districts, was not designed to circumscribe the jurisdiction of the Court. The object was merely to give suitors the privilege of having their cases heard within convenient distances from the places in which they originated, and, where, generally, the parties are presumed to reside. This, like any other advantage, may be waived with the consent of the Court. There is nothing in the statute which is repugnant to such a waiver. The Act of Assembly requires the Supreme Court to be held at stated times annually in the several districts. This has always been done; so that the statute, in that particular, has been satisfied. But justice may sometimes require that a case be taken up out of its proper district. A delay which works irreparable mischief is sufficient to call for the exercise of this power, under the constitutional injunction that “justice shall be administered without denial or delay.” So, an abuse of process or a mistake in entering a judgment has been deemed sufficient to justify the interference of the Court, although, at the time, not sitting in the district where the mistake or abuse occurred. In one instance we have made an order in the Eastern District to grant relief against process issued on a judgment erroneously entered in the Western District; and it is a common practice to pronounce judgments in one district on causes originating in another. In the case now before us, as the parties make no objection, and as our jurisdiction over them and over the subject-matter in controversy is not doubted, the propriety of exercising it in the manner proposed is to be decided by considerations of expediency alone. As the punishment imposed by the sentence would be fully suffered and ended before the cause could be reached in the ordinary course, and this would produce injustice, if erroneous, for which there is no adequate redress, we deem it our duty to proceed to the examination of the record returned.

An indictment lies not only where a conspiracy is entered into for an illegal purpose, but also where it is to effect a legal purpose by the use of unlawful-means; and this, although such purpose be not effected: 2 Lord Ray. 1167; 8 Mod. 11; 6 Mod. 185; 8 Ser. & R. 420; 4 Met. 126; 2 Russ. & M. 553. Where the object itself is unlawful, the means by which it is to be accomplished are not material ingredients in the offence; and, therefore, in such a case it is never necessary to set them forth. The offence is complete the moment the conspiracy is made, whether any acts be done in pursuance of it or not. Such acts form no part of the offence, and the statement of them in the indictment is but surplusage.

It is by no means necessary that the object to be accomplished should be malum in se. It is sufficient if it be made criminal or even be prohibited under penalties by statute. The indictment against workmen for a conspiracy to defeat the operation of the Act of Parliament regulating their wages, and that for a conspiracy to violate the Acts of Assembly prohibiting the sale of lottery tickets, were sustained on this principle: 8 Mod. 10; 4 Met. 128 ; 7 Ser. & R. 476. In an indictment for a conspiracy to do an act prohibited by the common law, where the apt has a specific name which indicates its criminality, it is not necessary to describe it minutely. But it has been thought that where the object of the conspiracy is merely forbidden by the statute, it can be described only by its particular features : Commonwealth v. Hartman, Lewis’ U. S. Crim. Law 223. But even in offences of this character it has never been held necessary to set forth the unlawful object with the precision required in an indictment for perpetrating it. It is the conspiracy and not the object sought to be accomplished by it that is. the subject of indictment. Where the indictment is for an act done, it is always in the power of the prosecutor to lay it with certainty; and this the accused has a right to require, as well for the purposes of his defence as for his protection against a second prosecution for the same cause. But this reason does not extend to an object which may never have been accomplished, and which is not the gist of the offence charged, although an essential ingredient in it: Commonwealth v. Gillespie, 7 Ser. & R. 475-6.

Let us apply these principles to the case before us. It is scarcely necessary to say that we cannot re-judge the facts. These we must take to be conclusively established by the verdict. Every material allegation in the indictment must, on error, be taken for absolute verity. The verdict on the first count, therefore, conclusively establishes the facts that the defendants below entered into a conspiracy to “solicit, induce, and procure” certain persons therein named, and stated to be officers of the Farmers’ Deposit Bank of Pittsburgh, to violate and disobey the 48th and 49th sections of the Act of 16th of April, 1850. Those sections are fully set forth. One of them prohibits the circulation of what are commonly called foreign bank bills of a less denomination than five dollars, under certain penalties to be sued for as debts of like amount are recoverable. The other contains the same prohibition under the penalty of indictment in the Criminal Courts for a misdemeanor. The count referred to also sets forth in language which plainly brings the case within the statute, the particular acts of violation which it was the object of the conspiracy to “ cause and procure.” There can be no doubt that the statute prohibiting the circulation of foreign bills, under the denomination of five dollars, is founded on the soundest policy, and that the public interest would be greatly promoted by its faithful observance. A conspiracy to defeat its operation is a combination against the public welfare, and we can, have no hesitation in declaring that such a conspiracy is an indictable offence. If the first count contained nothing more than this charge, the offence would be complete. But it goes farther. It avers that the purpose of the conspirators, in causing the officers of the bank to violate the Act of Assembly, was to compel them “unjustly and unlawfully” to pay large sums of money ufor the corrupt gain” of the conspirators. If the object was merely to compel the payment of the penalties by a bond fide prosecution for them, the offenco of inciting persons to violate the law remains. But a recovery of the

penalties, even in that case, would not be “unlawful.” We are, therefore, left to infer that the “large sums of money” were to be obtained by some other means than a fair prosecution of the offenders. In a subsequent part of the indictment it appears that the money was to be drawn from the victims by compounding their offences. If the object was merely to detect and bring to punishment suspected violators of the law, there was nothing indictable in the transaction. Norden’s case in Foster’s Crim. Law 129, and many other cases in detecting post-office larcenies and other offences, are instances of this. But it was the business of the plaintiffs in error to show on the trial the lawfulness of their acts. They had their day in Court for this purpose. The mistake of the jury, if there be one, cannot be corrected here. A writ of error reaches nothing but the errors manifest upon the record. The evidence submitted to the jury is no part of the record, and is, therefore, not before us. It is found as a fact that the object of the defendants below was not the detection and suppression of crime, but the promotion of their own corrupt gain. The idea of procuring the violation of the law for the purpose of detecting and punishing suspected offenders, nowhere appears upon the record. On the contrary, this motive is entirely excluded by the averments in the indictment, all of which the jury have found to be true. It is not material whether the “ corrupt gain” of the conspirators was to be secured by recovering the informer’s share of the penalties, or by receiving money to suppress prosecutions for the offences committed. In either case there can be no doubt of the criminal character of the transaction. The double iniquity of inducing a person to commit a crime, and then extorting money from him to suppress a prosecution for it, is such a plain violation of public and private rights, that it requires no argument to show that a conspiracy to promote such an object is indictable. The act of inducing a person to commit an offence for the purpose of recovering the penalties against it, may be less in the degree of its enormity, but it is in principle the same. It is an offence not unlike that which was punished in the case of King v. McDaniel et al., Foster’s Crim. Law 130. In that case there was a conspiracy to procure persons to commit a robbery upon one of the conspirators, for the purpose of obtaining the rewards given by Act of Parliament for the conviction of highway robbers. Although the means used to induce the perpetration of the robbery were not more seductive than those adopted in the case before us, the prisoners were convicted of the conspiracy, and the conviction, upon the fullest consideration, was affirmed. They •were set in the pillory twice, and committed for seven years. But the offence of inducing others to commit crimes for the purpose of obtaining the rewards given for their conviction, was so abhorrent to public feeling, that one of them lost his life in the pillory through the resentment of the populace: Foster 130.

It is true that the means made use of to prevail over the virtue of the victims, in this case, were not such as could have succeeded with persons of ordinary devotion to the law. Rut as the conspiracy itself is indictable, without regard to the result or to the means used to effect it, the facility with which the result was effected may prove that the officers of the bank were unable to. resist a very slight temptation; but it is far from extinguishing the guilt of the conspirators. Their offence is none the less because aimed against persons too weak to resist a small temptation. If the means resorted to had failed, there is no reason to believe that the conspiracy would have been abandoned. On the contrary, as the plaintiffs in error had bound themselves together to accomplish the unlawful object, the presumption is, that .if one measure failed, another more effective would have been adopted. Rut all this is immaterial, for, as already said, neither the final result, nor the means used to effect it, vary the legal character of the offence.

We are of opinion that the first count charges an indictable offence. As this is sufficient to sustain the sentence, it can make but little difference to either party in what manner the remaining counts are disposed of. In the Commonwealth v. McKisson, 8 Ser. & W. 420, where, on error, one count was found to be sufficient, it was not deemed necessary to express an opinion on the others. But we may certainly look into the whole record for the purpose of ascertaining, for our own satisfaction, how far the present decision accords with the real justice of the case. In one count, the jury have found that the plaintiffs in error caused the officers of the bank to violate the statute, and then threatened them with a great number of actions for penalties (amounting in the aggregate to $20,000), unless they would pay the sum of $3000 to the conspirators. In another count the jury have found that the plaintiffs in error actually offered, for the sum of $3000, to bind themselves against bringing any action for penalties, and to “ tear up, burn, and destroy” the evidences of fourteen violations of the law, in which the penalties amounted to the sum of $70,000. These facts show that their object was not the detection and punishment of offenders, but the promotion of their own corrupt gain, and that to accomplish their purposes they entered into a combination to prostitute the law and its process. It is plain that they sought to extort “ hush-money” for suppressing the evidences of guilt, and thus defeating the object and policy of the statute. Their proceedings, as spread upon the record, have not the least smack of a bond fide prosecution in support of the policy of the law. Those who bring offenders to punishment are entitled to a share of the rewards offered, because they render their services to the public in suppressing the mischief. But those who induce a violation of the law, for the purpose of compounding the offence and making gain by defeating public justice, are guilty of a gross public wrong. A conspiracy to effect such an object is clearly indictable.

The judgment of the Court of Quarter Sessions is affirmed.


source: Caselaw Access Project

author: Lowrie, J.

license: Public Domain

text:
    Stigers versus Thomas.
    The agreement of 4th July, 1760, between the Penns and Lord Baltimore relative to the boundary line between Pennsylvania and Maryland, construed under the light of the other agreements and documents concerning that controversy, does not confirm any Maryland titles to land in Pennsylvania west of the Susquehanna river, except those that existed by grant and occupation at the date of that agreement and that are not more than one-fourth of a mile north of Mason and Dixon's line.
    The case of Thomas v. Stigers, 5 Barr 481, corrected in this respect.
    Error to the Common Pleas of Fulton county.

    Ejectment by Abner Stigers and others, heirs of John Watt deceased, against George Thomas and James Conley. Stigers holds a warrant dated April 6, 1842, and Thomas one dated in May, 1842; but the plaintiff’s principal reliance was upon an outstanding title under a Maryland warrant, with which he did not show that he had any connexion. That warrant was issued in 1753, and a patent was obtained under it in 1754, not including the land in controversy. But by the land laws of Maryland any owner of land had a right, at any time, to get an office order of resurvey, so as to connect with it any contiguous vacant land that he might wish; and under this law an order of resurvey was issued in 1765, and a contiguous vacancy, including the land in dispute situate in this state, was surveyed and patented by Maryland to Hawkins. On the authority of this same case, Thomas v. Stigers, 5 Barr 480, the Court below decided that the Hawkins title was valid. That report is now referred to for a more particular statement of the facts.
    Lyon, for plaintiff in error.

      Cessna and J. A. Fisher, contra.
   The opinion of the Court was delivered by

Lowrie, J.

The law of this case is to be found in the agreements between the Penns and Lord Baltimore in relation to their boundary, viewed by the light of the circumstances under which they were made. That is the test of the Hawkins title.

The agreement of 4th July, 1760, is the principal one. Does it confirm the Hawkins title ? On the first trial the Court below decided that that title was entirely ineffectual so far as it embraced land in Pennsylvania. In the Supreme Court that decision was reversed, and it was held that the order of resurvey of 1765 related back to the original warrant of 1753, and was therefore within the spirit of the agreement of 1760, between the Penns and Lord Baltimore.

The question raised in the Court below on the second trial was different, in form at least, from that raised on the first trial. It is that a Maryland title, without actual possession at the time of the agreement of 1760, is of no effect in Pennsylvania.

There is a still more important difference between the two trials, arising from the fact that since the former hearing in 1846, all the documents, then so much needed, and the whole history of the disputes about the boundary line between Pennsylvania and Maryland, have been brought to light and published; and now we have before us, in the Pennsylvania Archives and Colonial Records, all the agreements about the line and all the facts necessary to illustrate them.

These circumstances are sufficient to account for and to require all the differences that will appear between our opinion now and that expressed by the Court at the former trial, and we shall spend no time in attempting to reconcile them.

The agreement of 4th July, 1760, refers (4 Pennsylvania Archives, p. 27) to the line fixed by the agreement of 10th May, 1732, and Lord Baltimore releases to the Penns all the land north of that line, providing, however, p. 28, that the release shall not affect grants “heretofore” made by Lord Baltimore to persons “now in actual possession and occupation” of such lands; and providing, further, and this is the relevant provision here, that it shall not affect grants heretofore made of lands on the west of the Susquehanna, which do not encroach more than one-fourth of a mile over the line fixed by the agreement of 1732, and which are “ now in the actual possession or occupation” of such claimants.

A corresponding release was executed by the Penns to Lord Baltimore, p. 34, with identical provisions, p. 35, except that on the east of the Susquehanna, encroachments by grant and possession under the Penns were protected to the distance of one-fourth of a mile south of the line. Thus all encroachments by grants and possession under the Penns, and west of the Susquehanna, were protected generally, and those east of it were protected to the distance of one-fourth of a mile south of the line fixed by the agreement of 1732. The Baltimore grants over the line, which were east of that river and which were actually possessed, were protected generally, and those west only to the distance of one-fourth of a mile north.

All this is perfectly comprehensible when read with reference to the previous state of the controversy. The agreement of 10th May, 1732, fixed the boundary as a line of latitude, 15 miles south of the most southern part of Philadelphia, and provided that titles to lands granted by either, and which were “ cleared occupied, and possessed” before 15th May, 1724, should be protected. The date of these settlements was, perhaps, fixed by the date at which an agreement dated 17th February, 1724, and made in London, went into effect in the colonies: 1 Archives 338, 483; 3 Col. Records 231. It provides that no persons should be disturbed in their, possessions on either side, nor should any lands be surveyed, taken up, or granted within the disputed territory; which elsewhere, 3 Col. Records 213, appears to have been about half a mile wide. This agreement in 1724 was limited in its operation to 18 months, under the expectation that before the expiration of that time the boundary would be finally settled.

The agreement of 1724, therefore, protects only occupiers of land at that time; and since it prohibits all new grants and settlements, it was reasonable to expect that the agreement of 1732 would not protect grants and intrusions in violation of it. And so the matter was viewed by Governor Gordon in his letter to Governor Ogle of Maryland, 15th June, 1732, before seeing the agreement of May 10, 1 Archives 331, and so it is written in the agreement of 1732, 4 Archives 10: and in another letter, 13th September, 1731, Id. 291, he says that Pennsylvania had allowed no surveys contrary to the agreement of 1724.

But there are other indications that mere paper titles without possession cannot be regarded as protected by the agreement of 1760. The line which was provided for in the agreement of 1732 was not run, and the border difficulties continued, especially by illegal settlements from Maryland, west of the Susquehanna: 1 Archives 448. An active correspondence was carried on between the governors of the two colonies, and it was proposed to have a provisional line run, and an arrangement made of the difficulties in the mean time: 1 Archives 453; 4 Col. Records 218.

The immediate result of all this was that, by the King’s order in council, 18th August, 1737, the governors were enjoined not to make grants or permit settlements of the lands in contest: 4 Col. Records 298; and shortly thereafter the proprietors entered into a provisional agreement, stipulating that all lands “now possessed” under either proprietor should remain so, and that all vacant lands on the east of the Susquehanna, so far as 15] miles south of the latitude of the southern part of Philadelphia, and on the west of the river, so far as 14-|- miles south of the same latitude, should belong to the temporary jurisdiction of Pennsylvania, until the final settlement of the line; and that the respective parties might grant lands on their side of the said limits, and account for the proceeds after the final settlement of the boundary: 4 Col. Rec. 299-301.

This arrangement was confirmed by the King in Council, and ordered to be carried into execution by the actual running and marking of the line, 25th May, 1738: 1 Archives 595, 612. A joint commission was therefore appointed, 5th December, 1738, to run the temporary line: 4 Col. Records 313; and in April and May, 1739, it was run by them, 15\ miles south of the latitude of Philadelphia, as far west as the east side of the Susquehanna, and the starting point for the rest of the line was marked one-half a mile further north on the west side of the river. The minutes, and a map of their work, are given in 1 Archives 595-611. The line was in the same month of May continued westward 14f- miles south of the latitude of Philadelphia, by the Pennsylvania commissioners alone, and marked for a distance of 88 miles further west, “ to the top of the most western hill of a range of hills, called the Kittochtinny hills,” which was beyond where persons were then permitted to settle: 1 Archives 613. We further learn, from a letter of Governor Ogle of Maryland in 1749, that the line was afterwards completed by Pennsylvania: 4 Col. Records 422.

With all this light shed upon the subject by these transactions and documents, it is easy to understand the part of the agreement of 1760 that is in question here.

It protects no Maryland title west of the Susquehanna that was more than one-fourth of a mile north of the true line, as it should afterwards be ascertained; and.not even that, unless it was accompanied by actual possession. It allowed that much margin, because it had been allowed by the agreement of 1737; but it disallows it for the future. It did not allow more, because no equity demanded it; for all settlements and grants along the disputed boundary had been often forbidden, and the line was accurately described, and had even been previously run and marked on the ground, and none could be excused for ignorance of it.

In none of the agreements does a grant by one proprietor give title within the limits of the other (except the one of 1737 to the extent of one-fourth of a mile over the line), unless followed by occupation. The agreement of 1760 ratifies some grants that were over the line, but only such as were then in actual occupation and possession” of the claimants. Unless the defendant below ean show a Maryland title existing by grant and occupation at the date of that agreement, and of land not more than one-fourth of a mile north of Mason and Dixon’s line, he must depend on the merits of his Pennsylvania title.

Judgment reversed and a new trial awarded.


text:
    Forster versus The Cumberland Valley Railroad Company.
    1. Statutes of limitation being in definition of the common maxim, vigilantibus non dormientibus subveniunt leges, are applied rather according to the substance of the claim than to the form of the proceeding, and hence may be relied on in all Courts, even though their letter may refer only to proceedings in Courts of common law form.
    2. The statute of limitations may be pleaded in bar of the special statutory remedy provided for the recovery of damages caused in the construction of a railroad.
    Error to the Common Pleas of Dauphin county.

    Petition of John Forster, for the appointment of viewers, under the Act of 2d April, 1831, sect. 15, to estimate the damages done to his land, in the erection of a railroad bridge, report thereon, and appeal to the Court.
    The plaintiff was the owner of an island opposite to Harrisburg, a portion of which is crossed by the railroad bridge of the defendants. The bridge was built in 1836 or 1837, burned down in December, 1844, and rebuilt in 1846. As the case turns, however, upon the validity of the plea of the statute of limitations, it is unnecessary to notice the facts, further than to state that the petition for viewers was filed August 24,1848. The award of viewers was appealed from. The defendants plead not guilty, and added the plea of actio non accrevit infra sex annos. The Court below, Pearson, P. J., charged the jury that there was nothing to take the ease out of the statute of limitations, and that the cause of action not having accrued within six years, their verdict should be for the defendant. This was, inter alia, assigned for error.

      Msher, for plaintiff in error,
    argued that the general statute of limitations did not in terms apply to such a case, and that it ought not to be extended to it by construction; and cited 1 Lord Raym. 289; 15 Vin. Ab. tit. “ Limitation,” 107, pl. 4; Cro. Car. 140, 513; 2 Saund. 67, n. 10; 6 Mod. 26; 11 State Rep. 176.

      McQormick and Watts, for defendant in error,
    insisted that the case was within the equity analogies of the statute.
   The opinion of the Court was delivered by

Lowrie, J.

Statutes of limitations are mere definitions and limitations of the generality of that principle of the common law which is expressed in the maxim vigilantibus non dormientibus subveniunt leges; and the Courts cannot administer such statutes according to their spirit, unless by regarding them as passed in aid of the common law, and therefore as furnishing a general rule for cases'that are analogous, according to their subject-matter, to those expressed by the statute.

And so this subject is regarded: for the limitations are applied by analogy to actions in chancery, in admiralty, (The Mentor, 1 Rob. 182, The Rebecca, 5 Id. 96,) to claims in bankruptcy, in insolvency, in the Orphans’ Court, and to set-off, though none of these are within the letter of the statute; and we applied it very lately to a claim for mesne profits made in an action of ejectment: Lynch v. Cox.

As a general rule, public officers, and also all persons and companies, making public works and improvements, are protected by much shorter limitations. So it is in England, in such a case as this, statute 5 & 6 Vict. c. 97, sect. 5; and so it is here, under the general railroad law of 1849, sect. 14, and under the lateral railroad law of 1832, sect. 10, if we may suppose that the word “ penalties” means damages, which seems probable, since the infliction of penalties is not pertinent to acts done “in pursuance and by authority of” an Act of Assembly: see 8 Barn. & C. 697.

The case of the Union Canal Company v. Woodside, 11 State Rep. 176, does not apply to this case, except so far as it declares this form of action to be in substance an action of trespass. The statute of limitations was not relied, on there; but the presumption of payment was, and as a matter of law that was decided in favor of the defendants.

The action of trespass would seem to be technically proper in such a case, if there were no special remedy provided, for the constitution makes the taking of the land unlawful unless compensation is first paid or secured. But this act was done before this clause was inserted in the constitution; and therefore without the special remedy, trespass on the case would seem to be the proper form of an action. This is the common law remedy for all injuries not falling within the other usual remedies; and it is to the subject-matter of the action that the limitation applies; and therefore it continues to apply even when the form of the remedy is changed. It surely can make no difference whether the action is against many individuals, or against many who are united by an act of incorporation. The public sanction of their union does not render them objects of suspicion, or exclude them from the benefit of the general rule of law.

These views set aside all the other exceptions; for the plaintiff cannot attach anything, as incidental to a claim that has no substance.

Judgment affirmed.

Lewis, J., and Knox,. J., dissented.


author: Lowrxg, J.

text:
    Huyett versus Philadelphia and Reading Railroad Company.
    X. A railroad company is responsible for fires caused by the careless emission of sparks in the running of their engines.
    2. XVhere a house was set on fire by sparks from a locomotive engine and there was evidence that the weather was very dry and windy, and that sparks flew from the defendants’ engines to a great distance and also set fire to several fields and fences near the same time and place, it was for the jury to decide whether this was sufficient evidence of carelessness.
    Error to the Common Pleas of Berks county.

    This was an action in case by Henry Huyett v. The Philadelphia and Reading Railroad Company, for carelessness in the management of their locomotive engines, whereby the plaintiff’s house, near the defendants’ road, took fire and was consumed. Plea, not guilty.
    On the trial below, the plaintiff gave evidence showing that the defendants’ road passes through his farm, with its track 77 feet from his dwelling-house, and that on April 18, 1846, his house was set on fire by sparks from some one or more of several engines passing by on that day, and about the same hour. The weather was, at that time, very dry and windy, the wind blowing strong across the road towards plaintiff’s house. Sparks were seen flying from the engines to the distance of more than 50 yards from the road, and fences and fields were set on fire in several places about the same time, and at considerable distances from the road.
    The defendants gave evidence showing that all their engines were in good order, and were all provided with good spark-catchers. None then in use prevented the flying of sparks entirely; they ■flew most when the furnace door was opened, and the fire stirred; they fly considerably in firing up.
    On this evidence the Court below considered that the case was governed by the decision of this Court in the- Railroad Company v. Yeiser, 8 Barr 366, and directed a verdict for the defendants; and this is the matter complained of.

      H. W. Smith, for plaintiff,
    insisted that the Company is liable for carelessness, and that there was evidence of carelessness that ought to have been left to the jury: New York v. Bailey, 2 Denio 433; Piggot v. Eastern Counties Railway Company, 54 E. C. L. R. 229; Aldridge v. Great Western Railway Company, 3 Man. & Gr. 515, 42 E. C. L. R. 272; 1 Bl. Com. 431; 1 Salk. 13; 7 Harris 298; 2 Camp. 79; 13 Pet. 181; 2 Eng. C. L. & Eq. R. 360.

      Strong and St. Gr. T. Campbell, contó,
    relied on the cases of Railroad Company v. Yeiser, 8 Barr 366, and Pennsylvania Railroad v. Heister, Id. 445, as showing that the defendants were not chargeable for such accidents, and argued that there was no evidence of carelessness: 10 Iredell 206; 5 Barb. S. C. R. 337; 8 Id. 379; 4 Harrington 252; 11 Met. 460; 13 Pick. 76; 21 Id. 146; 4 B. & Ad. 30.
   The opinion of the Court was delivered by

Lowrxg, J.

In the case of the Railroad Company v. Yeiser, all the material principles of this cause are decided except one; and that has reference to what is sufficient evidence of carelessness on the part of a railroad company in case of a fire occasioned by sparks from their engines.

Whether, in this instance, it was caused by the carelessness of the defendants’ servants, must he judged from the circumstances; and we think that the cases referred to by the plaintiff’s counsel, show clearly enough that this question, under the evidence here, is within the province of the jury: see also 1 Denio 91.

How is it possible for the Court to say, as matter of law, how many sparks, or how many fires caused by them, it takes to prove carelessness ? How can the law declare, except as a deduction from facts found, what are sufficient spark-catchers ? When we find fires started by a locomotive, at distances of 80 to 150 feet from the road, how can we say that that is no evidence of carelessness ? It is a question of fact, whether the small sparks that escape through a good spark-catcher will ignite wood at such a distance. We see wooden houses, and lumber, and firewood, and shingles standing all along the very edge of railroads without being burnt; how can we say that the happening of several fires, all about the same time, along the line of the road, is no evidence of carelessness ?

The company has paid for its right of way and for all the inconveniences which were likely to result from the construction and use of its road; but this does not cover all sorts of damage: 10 Mees. & W. 425; 15 Beav. 322, S. C. 19 Eng. L. & Eq. Rep. 295; and it cannot cover damages arising from negligence, for the law never anticipates this in assessing damages, and it never allows people to purchase a general immunity for carelessness. If it did, no railroad company could pay the price in advance. This company, therefore, must submit to have the question of carelessness tried in this case just as it is in others: 1 Vent. 295; 1 Lutw. 90; 2 Stra. 1264; 11 Qu. B. Rep. 347; 1 L. Raym. 264.

They are bound to temper their care according to the circumstances of danger, 20 State Rep. 177, and exert more care when the property of others is in danger than when it is not; and their evidence will he tried by this rule. And if there be evidence of carelessness, the means of rebutting it are so entirely in the defendants’ power, that it is not unreasonable to expect from them that their evidence shall be very complete.'

Judgment reversed and new trial awarded.

Black, C. J., dissented.


author: Woodward, J.

text:
    Zimmerman versus Zimmerman.
    1. When a will duly executed is offered for probate the law presumes competency in the testator, and that his unconstrained desire in regard to the disposition of his property is expressed in the instrument.
    2. Such presumption, may be rebutted by showing that the will was obtained by fraud and imposition practised on the testator, or by duress or undue influence; but the influence must he such as to destroy free agency in the testator.
    3. A testator devised to his two sons certain of his lands subject to certain annual payments. On the same day he executed to his said two sons a lease of certain of his real estate from the date thereof for and during his own life and of that of his wife or of the survivor, they to pay to him or his wife, if surviving him, an annual rent, &c. In his will he directed that the said agreement or lease should remain and continue in force after his death; and if his wife survived him, until after her death, and she to receive the rents, &e., in lieu of her dower. He also directed that if his wife survived him, his will should not take effect until the time of her death :

    In an issue of devisavit vel non it was Held that the lease and will were not inconsistent with each other; that the fee vested in the devisees on the death of the testator, though the time of enjoying the possession was limited upon the death of the wife; and meanwhile the possession was to he held under the lease.

    4. The attachment by the register of a survey or draft of the devised land to the will, in making up the papers to be sent with the direction of an issue to the Common Pleas, did not invalidate the will. The survey was no part of the will.
    Error to the Common Pleas of Berks county.

    This was a feigned issue in which Daniel and Abraham Zimmerman were plaintiffs, and John Zimmerman was defendant, directed to try the validity of an alleged will of Isaac Zimmerman. The plaintiffs were the executors of the will, which was dated the 11th June, 1850.
    On part of the plaintiffs, the subscribing witnesses to the will were examined as to its execution, and the capacity of the testator.
    The admission of the will was objected to, because it referred to a written agreement between the decedent and his sons; because the widow of the testator was alive; and because among the papers transmitted from the register, and attached to the alleged will, were two drafts of the lands of the decedent. The will was admitted. The drafts were not offered in evidence.
    The written agreement was then produced in evidence, and the plaintiffs rested.

      On part of the defendant was then offered evidence, by which he attempted to prove the want of a sound disposing mind and memory in the decedent; and also duress.
    On part of the plaintiffs was then given testimony with the view of establishing competency in the ' decedent to make a will, and the absence of constraint.
    The defendant’s counsel requested the Court to charge the jury, —1. That the paper writing, purporting to be the will of Isaac Zimmerman, was not a valid will, because—
    First, — It is not a will complete in itself, but refers to an agreement between him and his two sons, which has no testamentary character, and cannot be proved as a will, and directs that that agreement shall be and remain in full force after his death; if his wife survive him, until after her death, &c.; and the widow did survive her said husband.
    Secondly, — The said paper writing orders that if Mary, the wife of Isaac Zimmerman, should survive him, that his will should not take effect until after her death.
    2. The survey is improperly attached to the will, and the will is therefore void.
    3. If the jury believe that the said Isaac Zimmerman was a feeble, easy, good-natured man, and was influenced contrary to his wishes to make such a will, it is not valid as a will.
    In the will, the testator devised to Daniel Zimmerman, his son, a certain tract of land, of about 100 acres, at a sum of $8000, to be paid in 27 annual &c.
    To Abraham, his son, he devised two other tracts of land, containing about 100 acres, at the sum of $8000, in the same number of annual payments.
    It was directed, in the seventh clause of the will, that the agreement made between the testator and Ms two sons, Daniel and Abraham, bearing the same date as the will, should remain and continue in full force after his death; if his wife survived him, until after her death; and that she should receive the rents and covenants therein set forth in lieu of her dower.
    In the 8th clause it was directed that if his wife survived him, his will should not take effect “ until the tim'e of her death.” His two sons were appointed executors.
    By the agreement or lease referred to, dated 11th June, 1850, the testator leased to his said two sons, Daniel and Abraham, a tract of land containing 200 acres (being the same land devised), to hold the same from the date of the agreement during the lifetime of the testator and Ms wife, or the survivor, at the yearly rent of $200, to be paid to the lessor during his life, and to his wife after his death, if she survived him; the lessees were to occupy subject to other conditions stated in the will. The witnesses to it were the same persons who were witnesses to the will.

      Jones, President J., charged: — “ The theory of the defence is that Isaac Zimmerman was a feeble, easy, good-natured old man, and was influenced contrary to his wishes to make this alleged will, and that therefore, it is not a valid will. *It is not every influence exercised over a testator that vitiates his testament, even though that testament may be contrary to his wishes in many particulars. The influence of a wife, for instance, the result of a long life of devotion to her husband’s happiness, may be exercised in giving a direction to his disposition of his property, and that disposition may be at variance with the judgment and wishes of the husband, yet there would be nothing in that to invalidate his will.* Persons standing in those near and dear relations are allowed to exercise the influence they acquire. That influence must not, however, destroy the free agency of the testator. His will must be the expression of a free will. The influence may give direction to, may lead the testamentary disposition, but must not control it. The law is expressed very forcibly upon this subject in Browne v. Molliston, 3 Wharton 129; and in Small v. Small, 4 Greenl. Rep. 223, from which the true rule is to be deduced. It is for the jury to apply these principles to the facts of the ease.
    “ The will is not invalid for the reasons suggested in the first and second points of the defendant.”
    Verdict was rendered for the plaintiffs.
    Error was assigned to the part of the charge between asterisks. 2d and 3d. In not charging as requested in the first point. 4th and 5th. In not charging as requested in the 2d and 3d points. 6th. In admitting in evidence the will, the admission of which was objected to, 1. Because certain drafts were annexed to it without authority; 2. Because it referred to the agreement; 3. Because it was not to take effect until the death of the widow, and she was still living.

      Davis, Banks, and Sallade, were for the plaintiff in error.

      Strong, for defendants in error,
    the Court declined to hear. — It was alleged in the argument that on the trial it was not alleged that the testator had been influenced by his ivife in .making the will, but by his sons, and that the third proposition to the Court related to that allegation. It was alleged that no evidence was given in the case of any influence exercised by the widow or the devisees, or any other person, upon the testator in relation to the will. It was therefore alleged that if the charge were inaccurate on this subject, it would not avail the plaintiff in error: 10 Barr 363. It was however said that the answer of the Court to the point was correct: 3 Ser. & R. 269; 3 Denio 37; 3 Whar. 129; 4 Greenl. 223, Small v. Small; 1 Richardson 80; 3 Strobh. 44; Id. 552; 5 Id. 167; 2 Greenl. Ev. 688.
    The agreement was merely a lease during the life of testator or his wife; and on the death of the testator, during the life of his wife, the devisees would take subject to the lease. The argument on the part of the plaintiff in error as to uncertainty, &c., is confounding the taking effect of a will with the vesting in possession of an estate given by it.
    As to the fourth error. When the register sent his precipe for a feigned issue, he attached together the precipe, the alleged will, and two drafts of the land of the testator, which had been left in his office. They were drafts of the parts of his lands which the testator had given to his sons. They were on separate papers and were not offered as parts of the will, and were no part of it. The lands devised were according to the drafts.
   The opinion of the Court was delivered by

Woodward, J.

When a will duly executed is offered for probate, the law presumes competency in the testator, and that the instrument expresses his free and unconstrained wishes in regard to the disposition of his property. This presumption may be rebutted by showing, to the satisfaction of a jury, that the will was obtained by fraud and imposition practised on the testator, or by duress, or by undue influence. What constitutes undue influence, is a question which must depend very much on the circumstances of each case. It is in its nature one of those inquiries which, cannot be referred to any general rule. Yet many principles have been settled by judicial decision which, properly applied, afford in most cases an adequate guide to a right decision of the question. Thus one has a right by fair argument and persuasion to induce a testator to make a will in his favor: Miller v. Miller, 3 Ser. & R. 267. And it is not sufficient to set aside a will to show declarations of the testator that he intended to make a different one, but that his wife had a high temper and interfered: Moritz v. Brough, 16 Ser. & R. 403. If a wife by her virtues has gained such an ascendancy over her husband, that her pleasure is the law of his conduct, such influence is no reason for impeaching a will made in 'her favor, even to the exclusion of the ■ residue of her family; though if that influence was specially exerted to procure the will in question, it might be sufficient to impeach it: Small v. Small, 4 Greenleaf 220. Threats and flattery, which induce and coerce a testator to subscribe and execute the will, furnish sufficient ground for setting it aside: Denslow v. Moore, 2 Day 12. A degree of importunity which deprives a testator of his free agency, which he is too weak to resist, and which renders the instrument not his free and unconstrained act, will invalidate a will: Davis v. Calvert, 5 Grill & Johns. 269. But the influence exercised must be such as to destroy free agency. Unless the jury are satisfied that such mental force has been exercised as prevented free agency, the influence exerted is not to be considered improper: Browne v. Molliston, 3 Wh. 138. To the same effect is the rule as laid down in Greenleaf's Ev. vol. 2, see. 688, where it is said that undue influence is not that which is obtained by modest persuasion, or by arguments addressed to the understanding, or by mere appeals to the affections; it must be an influence obtained either by flattery, excessive importunity, or threats, or in some other mode by which a dominion is acquired over the will of the testator, destroying his free agency, and constraining him to do, against his free will, what he is unable to refuse.

From these authorities it results that the presumption of unconstrained competency is not destroyed by showing that the testator was a feeble, easy, good-natured old man, in connexion with such other facts as were in evidence in this cause. Such a man, whatever his age, may possess a sound and disposing mind and memory, and whoever undertakes to show that he did not exercise it, must produce higher and more decisive proof than we have on this record. Without discussing it in detail, we are of opinion that it fell far short of that degree of proof which is required to exclude a will from probate. The plaintiff in error has no reason, therefore, to -complain of the charge of the Court.

The next ■ question relates to the effect of the lease'executed by the testator to his two sons on the same day he made his will, and which is referred to therein. The lease took effect from its date, the will only from the death of the testator, the last clause of which is in these words, — “ It is my will that if my wife Mary shall survive me, that this my will shall not take effect until the time of her death.” Mary survived her husband, and it is argued that the lease under these circumstances worked a complete revocation of the will,

1st. Because of the uncertainty how long the wife would live.

2d. Because a will must take effect if at all at the death of the testator.

3d. Because it is inconsistent with the whole scope and design of the testator that the agreement should take effect and the will also — they cannot stand together.

It must not be forgotten that the issue here is devisavit vel non —will or no will — not what its effect and meaning. The question is upon the existence of a will, not its construction. The two papers cannot be regarded as constituting one will, because one of them is a contract to which the sons are parties as much as the testator. The lease is no more the will of the father than it is of the sons. For the same reason they do not fall within the rule that renders inconsistent wills of the same date void for uncertainty.

Did, then, the testator mean to revoke and annul his will as soon as it was made ? It is impossible to believe it. Having provided for the support of his wife by the lease in the event of her surviving him, he doubtless meant that the sons- should hold the land under the lease whilst she lived, and then should take it under the will, or, in other words, that they should take the land subject to the lease.

Now it is true that after a will is executed, a conveyance of the whole estate devised revokes the will — a conveyance of part revokes it fro tanto: Marshall v. Marshall, 1 Jones 430; Balliet’s Appeal, 2 Harris 460. But a lease leaves in the testator an interest to pass under the will, and where no intention to revoke is apparent, nay, where the intention that both lease and will shall stand, is expressed, there is no ground for treating the will as revoked. However difficult it may be to execute it, whatever embarrassments may be encountered in its construction, it is, notwithstanding, a good will and worthy to be proved. The will took effect from the death of the testator, so far as it could, and the limitation expressed was no more than saying that the will should not repeal the lease, but that during her life the wife should have the rent reserved in the lease, instead of dower at law. The fee vested instantly under the will — the time of enjoying it in possession was limited upon the death of the wife — meanwhile the possession was to be held under the lease. All that needs to be decided now is, that this arrangement left the will a provable instrument.

The only point that remains to be noticed, relates to the survey. The plaintiff in error insists that this was improperly attached to the will, which we believe -is true; but we do not agree that the will was therefore void, for it seems it was attached by the register in making up the papers to be sent with the issue into the Common Pleas. It was not given in evidence as part of the will, and it is not to be recorded as such. Its tactual annexation to the will by the register was an unnecessary but harmless act.

The judgment is affirmed.


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    Leah Passmore’s Administrator’s Appeal; or Etter’s Estate.
    1. When a devise or bequest is ambiguously expressed, it is always important to bear in mind the inclination which the law has in favor of the heirs, which, in this state, is a rule of equality; and also in favor of a vesting of the estate at the death of the testator, or at the earliest possible period thereafter; and also in favor of an absolute against a defeasible estate. It is under the influence of this bias that words of survivorship are referred to the death of the testator, if there be nothing indicating a contrary intention.
    2. Where land was devised to a son for life and then to his issue who should survive him, with a provision that at his death without such issue it should revert to the devisor’s estate and be sold by his executors and the proceeds thereof distributed among his surviving heirs named in his will agreeably to the intestate laws of the state; this was equivalent to a vested remainder in the devisees and legatees living at the testator’s death, subject to being divested on the son’s dying leaving issue; and the share of one of the devisees who died before the termination of the precedent estate, passed to her representative.
    Appeal from the decree of the Orphans’ Court of Yorh county, in relation to the distribution of the estate of Henry Etter, deceased.
    The present question arises on the interpretation of the will of Henry Etter, so far as it relates to the land devised to his son Henry. His will was made in 1848, and among other things he devises to Henry a tract of land, “ to hold the same during his natural life; and from and immediately after the death of my said son, I give and bequeath the said premises unto his lawful issue, if such he shall have any to survive him. But if my said son should die without such issue to survive him, then, and in that case, the said premises shall revert to my estate and be sold by my executors, and the proceeds distributed among my surviving heirs hereinafter named, agreeably to the intestate laws of Pennsylvania.”
    At the date of the will, some of the children of the testator were dead, having left issue, and some of their issue were dead. In other parts of his will he provides expressly for his other living children, including Leah Passmore, and for the children of those that were dead. Leah Passmore died without issue, after the testator, in 1848, and her brother Henry, the devisee, died in 1849. The executors sold the land pursuant to the directions of the will, and the administrator of Leah Passmore’s estate claimed to share in the distribution of it as fully as if she had survived her brother; but it was decided that he was not entitled, and hence this appeal.

      JEvans. and Mayer, for appellant,
    insisted that the rule which requires an estate to be construed as vested at the earliest possible period, made this a vested remainder in the devisees and legatees who survived the testator; that describing them as the “ heirs herein named,” and also the words “agreeable to the intestate laws of Pennsylvania,” required this construction; and that it was subject to be defeated by the contingent estate provided for the unborn children of Henry. In support of these views, they cited Brimmer v. Sohier, 1 Cushing 118; Barlow v. Salter, 17 Ves. 479; Wilmot v. Wilmot, 8 Id. 12; Acton v. Brooks, 7 Sim. 204; Lapsley v. Lapsley, 9 Barr 130; Hopkins v. Jones, 2 Id. 69; Johnson v. Morton, 10 Id. 245; Drayton v. Drayton, 1 Dessaus. 324; Earl v. Grim, 1 Johns. Ch. Rep. 494; Hansford v. Elliot, 9 Leigh 79; Vickers v. Stone, 4 Georgia 461; Stimpson v. Batterman, 5 Cushing 153; Bayley v. Bishop, 9 Ves. 6; Price v. Watkins, 1 Dall. 8, and many other cases.

      Gibson and Keesey, for the appellees,
    reviewed the cases cited on the other side, in order to show that they do not sustain the construction contended for, and argued that the word “ surviving” must refer to the testator’s death, and relied upon Moore v. Smith, 9 Watts 403; Leak v. Robinson, 2 Mer. 363; Lamb v. Lamb, 8 Watts 186; Brograve v. Winder, 2 Ves. Jr. 634; Rose v. Hill, 3 Burr. 1881; Houghton v. Whitgreave, 1 Jac. & Walk. 146; Cripps v. Walcott, 4 Mad. 11; Cochran v. Cochran, 3 Dessaus. 186; Caldwell v. Skilton, 1 Harris 152; Jessup v. Smuck, 4 Id. 340, and other cases.
   The opinion of the Court was delivered by

Lowrie, J.

In regarding the principal clause, it is very apparent that the testator does not use the word “ revert” in the strict legal sense; for he certainly means to exclude Henry from having any share in the reversion. In other words, the estate which the devisees or legatees take is not by way of reversion, but' a gift of the reversion. It is intended for only some of his heirs, and is therefore only a remainder. And he does not use the word “heirs,” as correctly indicating their relation to him, but as meaning his children and grandchildren.

The trouble is to ascertain what he means by his “ surviving heirs herein named,” his daughter Leah having died before Henry’s estate terminated. Was she a surviving heir of her father within the meaning of his will ? If, when he wrote it, he was thinking of his children and grandchildren who had already died, or who might die before he should, then she was. This may have been his thought, for he does not describe those who are to take after Henry’s death, as those who shall be then his surviving heirs, nor as the survivors of his devisees, but as surviving heirs who" are herein named, which grammatically refers to the present time, that of the making of the will. And such also would be the most natural interpretation of a gift of the reversion to be divided “ agreeably to the intestate laws.”

But this clause presents itself in other aspects. The estate to Henry was in terms a life estate, with remainder to his unborn issue, if he should leave any. Now if we treat this as constituting an estate tail, then the clause we are especially considering gives a vested remainder in the other devisees or legatees, or in some one for their common benefit. If it was only a life estate, then the estate of his unborn children was a contingent remainder, and that of the other devisees a vested one subject to be defeated by the death of Henry leaving issue living. In either way, therefore, the other devisees or legatees had a vested estate at the moment of the testator’s death: 3 Madd. 410; 2 State R. 69; 1 Baldw. 174; 2 Keen 284; 7 W. & Ser. 279.

This view is very important, for it gives to the devisees an estate independently of the directions concerning distribution, and makes those directions merely the means of placing them in the enjoyment of it. And if we give the fullest meaning to the word “revert” we arrive at the same result; for as a reversion it must vest in them immediately on the taking effect of the temporary estate of Henry, that is, on the testator’s death.

When a devise or bequest is ambiguously expressed, it is always important to bear in mind the inclination which the law has in favor of the heirs, which with us is a rule of equality, and also in favor of a vesting of the estate at the death of the testator, or as early as possible thereafter, and also in favor of an absolute rather than a defeasible estate. All these principles are of use here.

It is in perfect accordance with them, and under their influence, that it has so often been decided that the word survivors shall be referred to the death of the testator, if there is nothing indicating a contrary intention. It favors, in this instance, equality among his heirs or devisees, and we see no word tending to show that he meant to place Leah' on a different footing from any of the others. He makes no provision in defeasance of her estate in any event; but, on the contrary, he seems to say that it shall go to her as an heir agreeably to the intestate laws. It requires clear expressions or implications to divest her vested estate.

We are therefore of opinion that in providing this remainder for his “surviving” heirs, he meant his “other” heirs or rather devisees and legatees. And when he said “ agreeable to the intestate laws” he added a confirmation to this view.

Decree accordingly.


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    Ryan versus The Cumberland Valley Railroad Company.
    1. AVhere several persons are employed as workmen in the same general service, and one of them, is injured through the carelessness of another, the employer is not responsible.
    2. Where one of the laborers on a railroad gravel train was injured through the carelessness of the conductor or engineer, by the dumping of one of the cars while on their usual passage between their lodgings and their work, it was held that the employers were not answerable; because the maxim sic utere tuo does not apply to the defined relations of life, and the contract of hiring does not contain or involve the relations of protection and dependence, or any warranty against the carelessness of fellow servants.
    Error to the Common Pleas of Franklin county.

    Action on the case by John Ryan against the company for damages occasioned by the breaking of his arm while in the employment of the company, and through the carelessness of their agents.
    The plaintiff, with many others, was employed by the defendants to make repairs on their road, and the work was carried on partly by means of a train of gravel cars, made to dump to either side, and moved- by locomotive power. He was a common laborer, employed in digging, and in filling the cars, and in such like work; and as the hands boarded in Chambersburg, about four miles distant from fheir principal work, it was usual for them to ride to and from their work in gravel cars. While the plaintiff and others were thus going to their work, October 28,1850, at railroad speed, the accident complained of happened by the dumping of one of the cars, which seems not to have been hooked, and throwing the plaintiff out upon the road. It is charged that it was the duty of the defendants by their engineer or conductor to see that all the cars were safe before starting.
    The Court below (Kimmel, P. J.) instructed the jury that under such circumstances the plaintiff had no right to recover, and hence this writ of error.

      Mill and Reilly, for the plaintiff,
    relied on the case in 20 Ohio Rep. 415, and insisted, as matter of principle, that where employers undertake to carry their hands to and from their work, they are bound to carry them safely.

      Watts, for the defendants,
    argued that where many persons are employed to work together, their liability to be injured by the carelessness of each other is one of the ordinary risks of their occupation, which they assume to themselves, and so it has been decided: Story on Agency 574; 4 Met. 49; 1 McMullan 385; Strange v. McCormick, reported in the Am. Law Jour. March 1851, p. 398.
   The opinion of the Court was decided by

Lowrie, J.

The nature of the case requires the admission that it was the understanding of the parties that the hands were to ride on the gravel train to and from their work and at their work, and the plaintiff is entitled to use this fact as a part of his case. He cannot, however, use it as presenting the whole of the relation between him and the defendants. He was not a mere passenger on the defendants’ cars; because his travel upon them was really an incident of a different relation, that of a servant, and this the character in which we must regard him here. He was no more a passenger than is the coachman, or wagoner, or carter, who is in the employment of another. He was simply a servant, with the privilege of riding, as part of his business, in the gravel train, which was one of the instruments of his work. He could not and does not sue on a contract as a passenger, for that was not his relation; but he does sue on his true relation, as a servant injured by the carelessness of his fellow servants.

The plaintiff seeks to strengthen his "position by the allegation and by evidence that it was the duty of the engineer to see that all the cars were safely hooked before starting the train, and that his neglect in this respect is chargeable to the Company. As a matter of fact, this does not seem probable; yet we must examine its influence, as if it might be proved.

This alleged duty did not grow out of any contract between the plaintiff and the defendants, else the contract would have been charged as an essential and relevant bond of their relation, which has not been done. If it was a duty which the engineer owed to the plaintiff in any way, then the action ought to be against him for the breach of it. If he owed it to the defendants, then they alone can complain of its non-performance.

The duty must therefore be alleged as that of the defendants to the plaintiff. In what form shall we put it, or how shall we define' it ? Is it that, when persons are employed to work for others, the employers are bound to see that the instruments of their work are and shall continue in a condition to be used with safety? Then the coachman, the wagoner, and the carter, who ought to know more about the vehicles which they use than their employers do* have a practical warranty that they are in good order, though practically we know that many of them are nearly worn out; the wood-chopper and the grubber are insured that their axe or mattock shall not injure them by flying off the handle; the engineer, the miller, the cotton-spinner, and the wool-carder have a guarantee for the accidents that may befall them in the use of the machinery which they profess to understand, and which they ought so to understand as to be able to inform their employers when it is out of order.

If this be so, then the care and skill required of workmen is reduced very much below what is ordinarily expected of them. If there be any distinction between any of the cases put and the one in hand, it is too narrow to be made the foundation of a new rule, or to cancel the force of the analogy which they afford. Certainly such a duty has never been considered as belonging to these relations, and therefore it cannot be law.

The only way left for defining the supposed duty is to allege that employers are liable when any of those employed by them are injured by the carelessness of their fellow laborers. Though this proposition has never been decided upon by this Court, it has often been considered elsewhere and decided in the negative, and we know but one case that seems to affirm it: 20 Ohio Rep. 415.

It has been decided in the negative in cases relating £o those employed in running railroad cars: 1 McMullan 385; 3 Cush. 270; 4 Met. 49; 5 Exch. Rep. 343; 6 Barb. R. (Sup. C.) 231; 15 Id. 574; in navigating vessels, 2 Richardson 455; in driving a wagon, 3 Mees. & W. 1; in building, 5 Exch. R. 354, 6 Hill 592; and in factories, 6 -Cush. 75. And such is the rule even when the careless one is the superior of the other, or has a special duty to perform upon which the safety of the others depends. Where we find a road is so well beaten, it is easy to follow it, and its beaten character is an indication that we may follow it with safety. We shall trust to this indication, sustained'as it is by reasons which have been so fully expressed by others that we can do little else than repeat them.

The rule announced by these cases is, that where several persons are employed in the same general service, and one is injured from the carelessness of another, the employer is not responsible.

On what principle can a contrary rule be founded ? The maxim, sic utere tuo ut. alienum non Icedas, does not apply; for that is the most general of all rules, intended to define the duties of those who have no other relation than contiguity and a common humanity. It is intended as the general rule, defining the general relation of man in society, and not any of the special relations, which must have their own rules, depending upon their special character. Our question is, therefore, reduced to this: What is there in the special relation of master and servant from which a contrary rule can be deduced ?

With us this relation is always instituted by a contract, and to that we must look for the principal terms by which it is defined. The contract defines the duty of each party; and as we do not find that the duty which is now insisted on was made a part of the contract, we infer that it has no existence.

But it must be conceded that many of the relations of life are instituted in the most general terms, and that the special duties of each party are so well understood in society that they are left entirely undefined in the contract, and each is presumed to have undertaken them without their being formally specified. Certainly . no one will pretend that the duty here insisted upon has, in this way, become part of this contract; for no one so understands it, and no one would so contract if requested.

There is, therefore, no way left but to allege that the law has made it a duty of a master to see that his servants do not injure each other by their carelessness. There is no statute of this purport ; and therefore the allegation must be that it is a part of the common law. But the common law consists of the general customs of the people, and of the maxims and principles on which they act; and it is conclusive against the rule contended for that it has never been found among these, and is not deducible from them.

But the duty insisted upon is substantially one of protection, which cannot exist without implying the correlative one of dependence or subjection. The relations of husband and wife, parent and child, are in law relations of protection and dependence; and there are those which are so in fact, as where a weak-minded person submits himself to the direction of another; and here the law interferes to protect against an undue exercise of influence and power. And there are others, as the Sunday laws and the laws regulating the hours of labor in particular occupations, whereby the law protects men against the danger arising from undue competition ; but the strictness used in defining this relation, as belonging to special cases, implies that it has no wider existence.

There is no relation of protection and dependence between master and servant, or of confidence in the institution of the relation: we speak not of master and apprentice. The servant is no Homan client or feudal villein, with a lord to protect him. Both are equal before the law, and considered equally competent to take care of themselves, and very often the servant is the more intelligent of the two.

The argument that the law implies a warranty that one servant shall not be injured by the carelessness of another, is only another way of stating the proposition that the law imposes the duty of protection; and it must be set aside by the same answer.

And what would be the value of such a rule ? If it exists at all, it must grow out of the relation and affect all persons standing in it; and this rvould change all our ideas concerning the relation of master and servant. Every man must have his own business, whether as master or as servant, and there is no business without its risks. Where many servants are employed in the same business, the liability to injury from the carelessness of their fellows is but an ordinary risk, against which the law furnishes no protection but by an action against the actual wrongdoer. It would violate a law of nature if it should provide an immunity to any one against the ordinary dangers of his business, and it would be treating him as incapable of taking care of himself.

If we declare that workmen are warranted against such carelessness, then the law places all careless men, which means all badly educated or badly trained men, and it places even those who have not acquired a reputation for care, under the ban of at least a partial exclusion from all work. And this is the ordinary result of all undue attempts to protect by law one class of citizens against another. It is done at a practical sacrifice of liberty on the part of those intended to be protected, and to the embarrassment of the common business of life, by imposing upon the people a rule of a new and unusual character which may require half a century to become fitted like a custom, and adapted to the customs already existing which it does not have the effect of annulling.

If this were the rule, it would embarrass the conduct of all business, where any risk is to be run. How could a sailor be ordered aloft in a storm, without the employers being liable to the charge that the captain had shown want of proper skill and care in giving such an order in the circumstances? How could the wearied laborer be allowed to ride home with the driver, without danger that the employer should be called to account for an accidental tilting of the cart ?

IAnd such a rule could have very little application to great corporations, for they would immediately act on the maxim, conventio vincit legem, and provide against it in their contracts. But it would live to embarrass the more private and customary relations, and be the source of abundant litigation.

The Court below decided rightly that the rule contended for has no existence.

Judgment, affirmed.

Lewis, J., and Knox, J., dissented.