author: Woodward, J.

text:
    Michener versus Dale.
    1. A donatio causa mortis is a gift of a chattel made by a person in his last illness or in periculo mortis, subject to the implied condition that if the donor recover, or if the donee die first, the gift shall he void.
    2. Delivery is indispensable, but whether to the donee immediately or to another person for him, is immaterial.
    3. Though the property which is the subject of the gift he the principal part of the donor’s property, the gift is not on that account invalid.
    4. When a chattel has been given causa mortis, and possession delivered and the death of the donor immediately ensue, no title to the chattel descends to the administrator, and he has no right to the possession of it for the purposes of administration. The donee, however, must account for its value if creditors appear and there he not other estate sufficient to pay their claims.
    5. If the administrator has received the chattel which was the subject of the donatio causa mortis and converted it, the donee may maintain assumpsit against him.

      6. Where the gift was to two persons jointly they could sue jointlyfor its value.
    7. A person at sea, being seized with cholera, sent for the purser, and in his presence, holding in his hand a bag of gold dust and some pieces of coin, requested a sailor in attendance to hand it to the purser, which was done. The latter inquired who he wished to have Ms effects. To which the former replied his sister and brother residing in Philadelphia. The purser further testified that the gold dust and coin were given to him in presence of the donor and at his request, and he wished his brother and sister to have it. About sis hours after the occurrence the sick man died of the said disease. Ildd, that this was a donatio causa mortis in favor of the brother and sister.
    8. The property having been received and converted by the administrator of the donor's estate, the brother and sister could jointly maintain assumpsit for its value.
    Error, to the District Court, Philadelphia.

    This was an action of assumpsit by Samuel E. Dale and Elizabeth Jane Dale against John Gr. Michener, to recover the value of 109J ounces of gold dust, and some coin, the latter amounting to about $22.60.
    The plaintiffs claimed by virtue of an alleged donatio causa mortis, made by their brother James E. Dale, who died on board the steamer Panama, at sea, in the Pacific Ocean, in August, 1850. He had been a sailor, but leaving that employment he went to California and worked as a miner. He died on his voyage from San Francisco to Panama. Immediately before his death, he had in his possession the gold dust and coin. These were afterwards delivered to the Consul at Panama, by whom the gold dust was converted into money, and remittance made to' Michener, the defendant, who, at the instance of the father of Dale, had received letters of administration, at Philadelphia, on the estate of the deceased. The amount received was claimed by the plaintiffs, who were the brother and sister of the decedent.
    It was said that the gold dust and coin were the whole estate of Dale except his clothing, at the time of his death.
    On the trial, it ajopeared from the deposition of M. Lent, the purser of the steamer Panama, that James E. Dale, about six hours before his death, sent for Lent to see him. Lent went to him. He was in the steerage of the boat, with a man who appeared to be a sailor, also a steerage passenger. Dale was sick with cholera, and the man was attending to him. Dale had in his hands, loose, some coin, and a bag of gold dust tied up. He told the sailor to give the bag and coin to Lent, which he did. “ In answer to questions put to him by” Lent, “ he said his name was James E. Dale ; that he was twenty-six years of age; that he was not married.” Lent “ asked him, who he wanted to have his effects ? He said, his sister and brother.” Lent “asked him where they lived? he replied, in Philadelphia; and that was all he said.” In answer to subsequent interrogatories, he said, “ the gold dust and coin was given to me in the presence of James E. Dale, and at his request, and he wished his Irother and sister to have it;" and “James E. Dale did not inform me that he had any property, otherwise than by directing the sailor to deliver to me the bag of gold dust and coin, and by saying, that he wished it to go to his Irother and sister.”

    By the same deposition it appeared that Dale died about six hours after the said conversation, of the cholera, with which he was then suffering.,
    It was also testified by a witness that he gave to the said James E. Dale about fourteen ounces of gold dust, to bring to the witness’s family in Philadelphia. It appeared that a suit had been brought against the defendant as administrator, for the value of the said 14-J ounces of gold dust.
    On the part of the defendant points were submitted.
    The judge, inter alia, charged that if the jury found that Dale was dangerously ill, and believed he was about to die, and then expressed his desire that the gold dust and coin should become the property of his brother and sister in the event of his death, and that the same was delivered to Lent to be delivered by him to them, and that his intention was that this property and no more should be given to his brother and sister; and that Dale died within a few hours after, of the sickness with which he was then suffering, in such event the plaintiff could recover the amount received by the defendant.
    But, that, if the jury found that when the gold dust and coin were put into the hands of Lent, by direction of Dale, the intention of the latter was, that all his effects whatever they might be, and not merely the gold dust and coin, should become the property of the plaintiffs, then the verdict should be for the defendant.
    The third point submitted was, that if the proceeds of the gold dust received by the defendant was the whole of Dale’s estate, he could not dispose of it by a gift which would take effect as a donatio causa mortis. As to this point, the judge charged that it was correct, but that he reserved the point.
    Verdict was rendered for the plaintiffs.
    A number of specifications of error was made; the first three were to the admission of the testimony of Lent; the fourth was to the charge; the fifth was to leaving it to the jury to determine the meaning of the words used by Dale, which were alleged to constitute the donatio causa mortis. 6. In leaving it to the jury to determine his intention. 7. That if the plaintiff's were entitled to the proceeds of the gold dust, their remedy was several and not joint. 8. That the evidence was not sufficient to establish a donatio causa mortis. 9. That if the gold dust was the principal part of Dale’s property, he could not dispose of it in the manner in question. 10. That a donatio causa mortis is subject to the debts of the deceased; and if it be necessary to pay the debts, the administrator was entitled to retain the proceeds for that purpose. 11. iThat being liable for debts, the administrator is entitled to retain it until all claims are ascertained and settled. 12. If there was in this case, a gift of the gold dust, the remedy of the plaintiffs was for the balance after settlement of the administrator’s accounts. 13. That the plaintiffs could not recover in this action. 14. In reserving the third point charged upon. It was intimated in the argument that from the point being reserved the jury might have considered it doubtful.

      T. 8. Smith, for plaintiff in error.

      Thayer, for defendants in error.
   The opinion of the Court was delivered by

Woodward, J.

James B. Dale, a native of Philadelphia, and a bachelor, having lived several years in California, embarked at San Francisco in the month of August, 1850, for Panama, on board a steamship. On the voyage, between Acapulco and Panama, he was seized by cholera. He sent for the purser of the ship, Mortimer Lent, who when he came found Dale lying dangerously ill, on the steerage deck. A sailor was in attendance upon him. The sick man held in his hands a buckskin bag of gold dust, and some pieces of coin, together amounting in value to $1770.60, which he handed to the sailor, and requested him to deliver them to Mr. Lent, which was done on the spot. In answer to questions put to him by Lent, he said his name was James E. Dale;. that he was 26 years old; that he was not married. Lent asked him who he wanted to have his effects ? He said his sister and brother, residing in Philadelphia. This, says Lent, was all he said; but on further examination, the witness stated, “ the said gold dust and coin were given to me in presence of said James E. Dale, and at his request; and he wished his brother and sister to have it.” About six hours after this occurrence Dale died of the disease from which he was then suffering.

This is an action brought by his brother and sister, to recover the value of the gold dust and coin, after conversion, from the administrator, into whose hands it has come. The question is, whether these circumstances establish a donatio causa mortis.

The plaintiff in error, who was defendant below, founds an argument on the word “ effects;” that it was a nuncupative disposition of his whole estate, and not a mere gift of the gold dust and coin. This question was properly submitted to the jury, and they found that the words of donation had reference only to the gold dust and coin. And interpreting the words of the dying man by his action, there is no room to doubt that the effects which he meant to give to his brother and sister were what he handed to the sailor.

Though we have derived the name and some of the principles of such gifts from the Roman law, yet we treat them with less favor than they enjoy in that system of jurisprudence, because it is the policy of our law to require all testamentary dispositions to be in writing. Our statute of wills does indeed provide for nuncupation in respect to personal property, but surrounds it with so many requisites and restrictions (all which we hold to be indispensable, Haus v. Palmer, 1 Am. L. R. 635) (9 Harris 296), that it is scarcely more than a nominal exception to the general rule that testaments must be written. And I agree it is a fair principle of decision, as suggested in Headley v. Kirby, 6 Harris 329, that we take our statute of wills as a general rule, and treat donationes mortis causa as exceptions which are not to be extended by way of analogy. It results, thence, that nothing can be sustained by way of donatio causa mortis, that is not strictly and purely such.

Donatio causa mortis is a gift of a chattel made by a person in his last illness, or in perieulo mortis, subject to the implied conditions that if the donor recover, or if the donee die first, the gift shall be void.

In this definition I have followed, substantially, C. J. Tilghman in Wells v. Tucker, 3 Bin. 370, and the English cases collected in 6 Bac. Abridg. 162; but I am aware that in Nicholas v. Adams, 2 Wh. 22, it was criticised by C. J. G-ibson, who quoted from Justinian’s Institutes to prove that there was nothing about sickness in the primitive definition, and to deduce what he considered the proper definition — a conditional gift dependent on the contingency of expected death.

I am far from thinking definitions unimportant, for, in the law as in all other sciences, they are the very keys to accurate knowledge ; but the difference between these definitions is not material as applied to the case before us, for, according to either or both of them, a good donatio causa mortis was made by Mr. Dale. It was a gift in his last sickness, and in view of expected death; and the donees surviving him, the implied conditions were taken away and the gift became absolute. Delivery was indispensable, but whether made to the donee immediately, or to another for him, was held to be immaterial in Drux v. Smith, 1 P. Wms. 404. The delivery to Lent was all that the law required.

And it was the completeness of this delivery in execution of the gift, which excluded the rights of the administrator. A gift is an executed contract. It may be defeated by conditions subsequent; but it must vest presently or it is nothing, for a mere promise to give cannot be enforced either at law or in equity. When a chattel has been given causa mortis, possession delivered, and death has performed the condition subsequent on which it depended, no title what ever in that chattel descends to the executor or administrator, and he has no right to the possession of it for purposes of administration. If the title of the donor be so effectually divested by a gift causa mortis that he cannot affect it by his subsequent will, as was held in Nicholas v. Adams, 2 Wh. 23, then, beyond controversy, his personal representative can take no interest in it. The donee, it is true, must account for the value of the chattel, if creditors appear and there be not estate enough beside to satisfy them, for in no manner whatever can a man, living or dying, give away his estate in fraud of creditors. The law compels him to be just, before it permits him to be generous. But until the donation is needed to satisfy creditors, the donee is entitled to enjoy it, and it is not subject to the ordinary course of administration: Roper on Legacies, p. 3; Tate v. Hilbert, 2 Vesey, Jr. 120; Walter v. Hodge, 2 Swans. 98.

It was greatly insisted on in argument that the Court ought to have instructed the jury that if the gold was the principal part of Mr. Dale’s property, he could not make a donatio causa mortis of it, and for this Headley v. Kirby was relied on. In that case there was a variety of chattels — they were not specified by the donor — nothing more than a constructive delivery occurred — the language was evidently testamentary — and it referred expressly to all her property. In these particulars the case is broadly distinguished from the present, and it does not decide that where a single chattel is the whole of a man’s estate, or the “ principal part of his property,” it may not be given causa mortis. The doctrine of that case, predicated of the circumstances then before the Court, is not to be questioned, for it rests on sound reasons; but, if. applied to a case like this, it would defeat all gifts made as memorials of gratitude and affection in the most solemn circumstances of life. It is due to the sensibilities of our nature that the law permit, under proper limitations, such expressions of a dying man’s regards. Many a chattel of small intrinsic worth has been thus impressed with an unspeakable value, which it would be a sort of sacrilege to subject to inventory, appraisement, and sale in open market. The Court did not charge that a man could dispose of his whole estate as a gift causa mortis ; and if the gold dust and coin were the principal part of the decedent’s property, we see nothing on the record to impeach it as a donatio causa mortis.

The property having been converted, and its equivalent only being in the hands of the administrator, the action was well brought in assumpsit; and because the title of the plaintiffs was joint, the implied promise followed it, and they were properly joined to sue upon it.

Though the fourteen errors assigned have not been discussed in order, it is believed the substance of all of them has been disposed of in these observations, and the judgment is affirmed.


source: Caselaw Access Project

author: Lowrie, J.

license: Public Domain

text:
    Philadelphia Life Insurance Company versus American Life and Health Insurance Company.
    1. The circumstances under which a writing is made may often be a necessary element in its interpretation.
    2. An insurance on a life in a distant state was for one year and was dated 31st May, and it appeared that the life had then expired, though unknown to the parties; that the interest of the insured arose out of a previous insurance and greater risk by them on the same life for one year from the 24th February preceding, with privilege to renew, and this, with its terms, was known to the insurers, and the premium was measured by the amount of the risk taken by them for the whole year: Held, that this was a reinsurance, or taking a share of the original risk for the whole time.
    Error to the District Court, Philadelphia.

    This was an action of covenant by The Philadelphia Life Insurance Company v. The American Life and Health Insurance Company, on a policy issued by the defendants on the 11th February, 1851, whereby they insured the life of Sarah Riddle for the sole use and benefit of the plaintiffs, in the sum of $2000 for the term of five years. Narr. filed on 21st December, 1852, and on the same day the defendants submitted four special pleas, and fifthly, the ple'a of set-off.

    In relation to the latter plea, it appeared that on the 24th February, 1851, the American Life and Health Insurance Company insured the life of Maxwell Nushaum for $2500, with the privilege to him of insurance for another year. On the 31st May, 1851, they obtained an insurance of $1000 of the risk from the Philadelphia Life Insurance Company, for the term of one year; but the time when the year was to begin or end was not stated. It was stated in the policy to be its intent and meaning that if the declaration made by the secretary of the American Insurance Company, on the faith of which this second insurance was made, was untrue, the policy was to be void. In the declaration by the said secretary it was declared that he believed Nusbaum’s age did not exceed thirty years, and that “ he is now in good health.”
    This declaration was dated on the 31st May, 1851.
    By a memorandum on the policy of the same date, signed by the secretary of the Philadelphia Company, it was agreed that in consideration of an extra premium of $30, included in the premium on this policy, the party insured had permission to go to California.
    It afterwards appeared that Nushaum was then dead, having lost his life in the fire which took place in California on the 4th or 5th May, 1851. The material question was whether the risk under the second insurance commenced from its date, or from the date of the first insurance. In the application of Nushaum for insurance, liis name was stated as Maxwell Nusbaum, merchant, Harrisburg, to California.
    In the proposal by the American Insurance Company, he was stated as going to California. At the time of the second insurance it was known to both companies that Nusbaum had left Philadelphia for California, but neither of them knew that he was then dead. His death was not known to them till some weeks after the second policy was made. The American Insurance Company then claimed the $1000 under the second insurance, as an off-set to the claim of the plaintiffs on account of the insurance of the life of Sarah Riddle. The secretary of the American Insurance Company was examined on part of the defendants, under objection, and stated that they had taken the risk on the life of Nusbaum, and that he inquired of the secretary of the other company if they would take half of it; or rather he offered him part of the risk on the policy. He agreed to take it, and a copy of Nusbaum’s application to the American was made out, and the plaintiffs issued to them a policy of $1000 of the $2500, and for which the company, which was defendant, paid to the plaintiffs two-fifths of the whole premium received from Nusbaum. He said that no objection was made to the date of the plaintiff’s policy to the defendants.
    The jury found for plaintiffs $2053.38; and under the plea of set-off, they found for the defendants $1095, subject to the opinion of the Court, and afterwards judgment was entered for the plain tiffs for $958.33.
    The material assignment was the instruction to find for defendant under the plea of set-off.

      Gibbons, for plaintiff in error.
    It was contended tha,t the American Insurance Company did not sustain any loss during the time within which the policy operated; that the event insured against did not happen within that time.

      T. 8. Smith and Meredith, contó.
    A risk may commence before the policy is subscribed, where it is not known by the parties whether the property insured is in safety: 1 Phillips on Ins. 163; or that life insured against is not in existence: 5 Burr. 2802. To render the policy in this ease void, it should be shown that the secretary did not believe his own statement: 2 Marshall on Ins. 772; Cowp. 785; 1 Phillips 83. The supposition that Nusbaum was living was not the basis of the contract, which was the uncertainty of the risk of the defendants.
   The opinion of the Court was delivered by

Lowrie, J.

This controversy' turns on a set-off made by the defendants to the plaintiffs’ claim, being the amount of a policy of reinsurance by the plaintiffs of $1000, on a risk of $2500 taken by the defendants on the life of Maxwell Nusbaum, of Harrisburg, Pennsylvania, and going to California. The insurance of the defendants was dated 24th February, 1851, for one year with the privilege of another at the same rate. The reinsurance by the plaintiffs was dated 31st May, 1851, and was for one year simply. The loss had actually occurred by the death of Nusbaum in California on the 4th May, and hence arises the difficulty, the plaintiffs insisting that their risk never attached, and the defendants, that from the very nature of the transaction, the reinsurance covers the whole time embraced in the insurance.

How ought the parties to have understood the transaction ? This is a question of interpretation, and, in order to answer it intelligently, we must place ourselves as nearly as possible in the circumstances under which the contract of reinsurance was made: 3 State Rep. 254. The writing by itself would be construed as a contract running one year from its date. Do the circumstances require a different construction ?

It is very important to notice that we are compelled to look outside of the policy to ascertain that this is a case of reinsurance, for inside of it there is no word to indicate this fact, though it constitutes one of its most important characteristics. This is one of those slovenly consequences of the use of printed blanks, which have caused those great conveniences and the contracts thus executed to be so much suspected. Being a reinsurance, it is a contract to take a share of defendants’ risk. This necessarily raises the presumption, and the evidence proves it, that the plaintiffs knew all the terms of that risk, and the premium paid for it. They knew that it was to run for one year from the 24th February, and they reinsured for one year. Does this mean from the 31st May ? It is unreasonable to suppose so. The defendants could not have intended, and the plaintiffs could not understand them as intending, to be insured for three months beyond their interest.

It is said that the contingent liability of the defendants to become insurers for another year, was an insurable interest. Suppose it so; still, being a contingent risk, it would not be taken as a certain one. It would not be taken as a matter of course, and without special treaty as this one was. Moreover, the premium was measured by the certain, and not by the contingent risk. We cannot thus make up the year insured against in the intention of the parties. The contract and the circumstances express themselves in seeming contradiction of each other, and our duty is to make them harmonize by construction. We cannot alter the facts to suit an inference drawn from the mere words of the policy, but we must suit the inference to the facts. Without the circumstances wre would draw one inference as to the intention of the parties; with them we must draw a different one. The fact that the reinsurance was for one year on a risk running for one year from the 24th February, and in consideration of a proportional share of the premium as from that date, settles the question, and starts the year of the reinsurance from that date, and all the representations must be read as of the same date; and this makes the time of the loss immaterial. See Chouteaux v. Leech, 18 State R. 224.

Judgment affirmed.


author: Black, C. J.

text:
    Chancellor versus Schott.
    Where a judgment-creditor who had purchased the defendant’s goods at a sale under his own execution, and allowed the defendant to retain the possession, afterwards received payment of the amount of money composing his judgment out of a trust fund provided by another for the purpose, without crediting the amount of his purchases at the sale, it was Held, that he could not claim the goods against a subsequent execution-creditor, even though he had other claims against the defendant beyond the amount of the levy and salo, exceeding the amount of his receipt to the trustee and not mentioned in the same.
    Error, to the District Court, Philadelphia.

    This was a feigned issue between Wharton Chancellor as plaintiff, and James Schott defendant. See a report of the case when up on a former occasion in 8 Harris 195, &c.
    James Schott, under a judgment in his favor against Henry Chancellor entered in October, 1845, had a levy made on certain household furniture in the possession of Henry Chancellor at his residence. The property was claimed by Wharton Chancellor by purchase at a previous sheriff’s sale, under a judgment in his favor against the said Henry Chancellor, entered October 18, 1845, for $8820. This issue was directed to try the right of the said Wharton Chancellor to the property levied upon. On the former trial it appeared that the sheriff had returned on the writ of Wharton Chancellor a sale, in October, 1845, of the defendant’s household furniture, to the amount of $2694.80. The purchase was for the plaintiff in the writ. No credit was, however, given by the plaintiff, on the docket, for the amount. The property remained in the possession of Henry Chancellor.
    Hannah Chancellor, the mother of Henry, by her will dated in 1848, but proved in 1847, devised the third part of her estate to trustees in trust, inter alia, to pay to Wharton Chancellor all moneys which at her death were due to him by Henry, and the balance of her personal estate was to be put at interest, and the interest thereof and the rents of her real estate were to be paid to Henry Chancellor, without being liable for his debts.
    It was testified by one of the trustees that the share of the personal estate of the testatrix so devised, exceeded $25,000. Also that he paid to the agent of Wharton Chancellor $7500; on which occasion a receipt was produced, signed by W. Chancellor, for $10,850.70. The agent of W. Chancellor claimed but $7500, which was paid to him; and the residue was paid to Henry Chancellor. A portion of the said balance was expended in repairing the trust property, and the witness knew when he paid it, that it was to be so expended. In the receipt, dated November 23, or 29, 1847, were stated loans of $500 on 29th September, 1842; of $3500 on October 29,1842; and of $3500 on November 11,1842; in all to the amount of $7500, which with interest added were stated to amount to $10,850.70.
    The answer of Wharton Chancellor to a bill of discovery was read on the part of the defendant. In it, it was stated that on the 18th October, 1845 (the date of the entry of the judgment in his favor against Henry Chancellor), he was a creditor of the latter to a large amount. On the 9th April, 1839, he loaned him $500, with interest, amounting on 18th October, 1845, to $695. On 29th September, 1842, he loaned him $500, with interest, amounting at the same date to $591.67; and on the 29th October and 11th November, 1842, he loaned him two sums of $3500 each, amounting with interest to $8243.08. That these loans were intended for the temporary accommodation of Henry Chancellor. He stated that besides these loans, he had advanced to his brother Henry various sums of money. That, at the time of the advances, nothing was said or agreed upon as to the return of the money, as it never occurred to him that Henry would be able to return it— but that he considered these advances were, in legal contemplation, loans.
    He further stated that after the amount realized by the sheriff’s sale was deducted, there remained due to him on the loans before stated the sum of $6869.57, which, with interest due thereon, amounted, on 20th November, 1847, to $7708.19. That, in addition thereto, he advanced to Henry, in September, 1844, $300; and in 1845, ’46, ’47, and ’48, various sums exceeding in all $7400 — which were unpaid. That he had determined to receive under the will of his mother but $7500, which was all he did receive from the trustees. He denied that the judgment was designed as a mere security until he could receive payment out of the estate of his mother, but alleged that the sheriff’s sale and purchase was considered by him an absolute extinguishment of so much of the indebtedness, and that he had no intention that Henry should again acquire an ownership in the said property.
    He further said that, as he had settled in his own mind the sum he intended to receive from the trustees, he did not examine the statement of the account nor the receipt. Also that the judgment was not thought of at the settlement, and that the amount received by him did not discharge his entire claim even after deducting the •amount realized by the sheriff’s sale.

      It was contended on the part of Wharton Chancellor, that if, after deducting the amount of the levy, a greater sum was due to him, at the time of the payment by the trustees, than was actually paid him, his title to the property sold was not affected by such payment.
    The judge, inter alia, charged the jury to inquire, — 1. What was the debt for which the judgment was confessed ? Upon that point they had the record. The judgment was entered merely on a warrant of attorney; and that there was evidence in the answer that there were other debts. But he observed that the judgments included at least two of the items composing the $7500. The jury were to inquire what was the debt at the time of the entry of the judgment. 2. Was the judgment paid in full ? The receipt was for $10,850.70, and for that sum the trustees took credit in their account. If the plaintiff chose to take of that sum but $7500, that could not alter the legal nature of the transaction. 3. That jf the jury believed that the settlement between the trustees and Wharton Chancellor, to which Henry was a party, covered or included the whole debt for which the judgment was confessed, without allowing credit for the sum of $2694.80 (the amount of the sale), their verdict must be for the defendant; and he refused to instruct them as requested on part of the plaintiff, that if more was due to Wharton Chancellor, on any account, after deducting the amount of the levy, than was receipted for, his title was not affected by the receipt; or, secondly, if more was due on any account, by Henry Chancellor, than the plaintiff actually receipted for, or than he authorized any one to receive, his title is not affected.
    Yerdiet was rendered for the defendant.
    Error was assigned to the refusal to charge as requested.
    McMurtrie, for plaintiff in error.
    It was said that Wharton Chancellor extinguished a part of his judgment by the levy and purchase. Being still a creditor for a large amount, and intending to receive a sum considerably less than was due, he signed the receipt for a larger sum without examination; but in fact for a less sum than was due after giving credit for the amount of the levy. Does the fact that the particular items, mentioned in the receipt, happen to be the same as had been extinguished by the sale, re-vest the property in the debtor, so as to subject it to levy; and is the plaintiff forbidden to show that another debt should have been stated in the receipt ? When the case was up before, this Court reversed under the supposition that the entire debt due to Wharton Chancellor, without deduction of the amount of the sale, had been paid to and received by him.
    It was said that the law will apply a payment to what is due, even if the. parties, through forgetfulness, applied it to what has been once paid. That a stranger cannot take advantage of such a mistake.

      Webster and H. M. Phillips, for defendant in error.
    The only matter before the Court under the assignments, is the refusal of the Court to instruct the jury that if, notwithstanding the payment of the judgment, more remained due to the plaintiff than he actually received, his title to the property was not affected. This point was immaterial to the issue. It was contended that the payment of the judgment in full revested the title. The only question was whether the $10,850.70 paid and discharged the judgment; and it was of no consequencewhat other accounts subsequently existed between the parties, it is not alleged that the payment was made in reference to them.
   The opinion of the Court was delivered by

Black, C. J.

On a former writ of error in this ease, 8 Harris 195, we decided that the present plaintiff in error, who had, under an execution of his own, caused his brother’s goods to be sold, and bought them in himself, but never removed them; and afterwards received full satisfaction of bis debt, without giving any credit for the proceeds of the sale, could not hold the goods against a subsequent execution-creditor. We are content with this decision, not only because it is a decision, but because it is right in itself, and in accordance with the previous cases on the same and on kindred subjects. But when the cause went back to the District Court for a new trial, the plaintiff in error raised another point. It seems that Wharton Chancellor, the creditor, settled with the trustees of Henry, his brother, who paid him upwards of ten thousand dollars out of Henry’s funds, in their hands, and took his receipt. The payment is not denied, nor the application of it to the debt on which Wharton’s execution was issued against Henry; for Wharton’s receipt expressly mentions that debt, with the amount of principal and interest, and acknowledges the payment of the whole sum, without any deduction for the price of the property sold by the sheriff. Henry, however, owed Wharton some other debts not mentioned nor referred to in the receipt. On this the Court below was asked to charge that, if Wharton received no more than what was due to him, after deducting the amount of the levy, his title 'to the property was not affected by his receipt. The refusal of the Court so to instruct the jury, is the only error assigned now. We think the judgment is right. When the money was paid, it was applied by the act of both parties to the judgment, and not to those other debts which are shown to have existed. That application cannot now be changed, when it would affect the rights and interests of third persons.

Judgment affirmed.


text:
    Insurance Company versus Johnson.
    1. A person was appointed agent and surveyor of a fire insurance company and was authorized “ to take applications for insurance” and “ receive the cash percentage to be paid thereon;” and in his certificate to the parties applying for insurance it was stated that they have made application to the Company for insurance and paid a cash premium; but adding, “if not approved by the directors, money to be refunded.” Held, that this was not an authority to make a contract of insurance; and if the application were forwarded to the Company, there was no evidence that it had been acceded to by it.
    2. An acceptance of the proposition for insurance was not to be presumed merely from the lapse of near six months without a reply to the proposition for insurance.
    3. The rates of hazard and the instructions to their agents or the by-laws of tbe Company, were not evidence on the part of the Company, it not appearing that the adverse parties had been informed of their terms.
    4. Evidence is admissible of the testimony of a witness before arbitrators in the same case, he being at a distance out of the state, being unmarried and having never had a permanent residence in the state.
    Error to the Common Pleas of Susquehanna county.

    This was an action on the case by S. N. Chittenden & Gr. Johnson v. The New York Union Mutual Insurance Company, to recover for an alleged insurance on two wooden buildings in Carbondale, Which were burned on 25th March, 1852. The defendants were incorporated in New York, and had their office in Johnstown.
    On 16th Sept. 1851, S. S. Wickham received a certificate of his appointment as agent of the company; it being certified that1 he had been appointed agent and surveyor of the said company, and that he is “ authorized to take applications for insurance in said company, and receive the cash percentage to he paid thereon.”
    On part of the plaintiffs was produced, as eyidence of a contract, a paper to the following effect;—
    “ This; certifies that Johnson k Chittenden, of Carbondale, have made application to the New York Union Mutual Insurance Company for insurance upon property specified in said application, to the amount of $ , and has given therefor premium note $ , and paid cash premium $25.00. If not approved by the directors, money to be refunded.”
    Signed, S. S. Wickham, Agent.
    October 9, 1851.
    As part payment of the $25 premium, Wickham took a note for $9, which Johnson held against him; and the residue was paid in money. This was done at Waymart, about six miles from Oarbondale.
    On the part of the plaintiffs it was testified that Wickham, the agent, was a single man, was out of the state, in which he had never had a permanent residence, and had gone to the city of Washington temporarily, or “for an office,” where he then was. It was testified, under exception, that he had testified before arbi-. trators in this case, that he had mailed this application within a day or two of the time it was made, and that it was directed to the secretary of the company.
    On the part of the company, evidence was given tending to show that the letter had not been mailed, and the secretary of the company testified that he had not received it.
    The rates of hazard by the company were shown.
    On the part of the company it was also offered to prove the printed instructions to agents, with evidence tending to show that one of them had been sent to Wickham. These were objected to, and were rejected.
    The by-laws of the company were also offered, and were rejected.
    On the paft of the plaintiffs was then read an advertisement, put up in Carbondale, by a former agent of the company, to the effect, inte/ alia, that the company will hold itself responsible for “ all surveys, and other official acts of its authorized agents.” * * * “ The insurance will take effect on all approvable applications the day they are taken, unless a different day is ordered by the applicant.”
    The case was tried before Wilmot, J., and verdict was rendered for plaintiffs for $2652.08.
    It was, inter alia, assigned for error, — 1. That the Court erred in admitting evidence as to the testimony of Wickham before the arbitrators. 2. In rejecting the “instructions to agents,” a copy of which, it was alleged, accompanied the certificate of appointment. 3. In rejecting the proof as to the by-laws. 4. It vras alleged that the Court erred in charging that there is nothing in the evidence showing that the plaintiffs knew or had the means of knowing anything as to the limitations and restrictions imposed upon the agent by the company, or its secretary. * * * The receipt for the premium showed that it was liable to be rejected by the directors, but whether it would be or not the plaintiffs had no means of knowledge.
    In charging that Wickham was not to be regarded “as a medium through whom the parties undertook to negotiate, and to make propositions for a contract, but as an agent of the company acting for it and in its stead.” In charging that the law presumed the assent of the company, from its failure to give notice, within a reasonable time, of its dissent and refusal to become bound in the proposed contract. “With the fidelity of the agent or the hazards of transmission through the mail, the plaintiffs had nothing whatever to do;” and if, through the infidelity or negligence of the agent, the application was never laid before the directors, it should not affect the rights of the plaintiffs;. and that if the evidence on the part of the plaintiffs was believed, they were entitled to recover.

      Little, for plaintiff in error.
    It was contended that the absence from the state, which will render the former testimony of a witness admissible, must have the character of permanence. It was contended that the instructions and by-laws should have been admitted, in order to show that the insurance of the property in question was unauthorized. That the agent had not power to bind the company in this matter, reference was made to 4 Barr 185. The law will not imply the assent of a principal to what he does not know. Rut if the insurance was declined, the company would be liable only to refund. The agent had only authority to receive proposals and transmit them to the office of the company. In the case of Lightbody, in 23 Wendell 18, the agent was appointed for “ effecting insurances,” and he gave an unconditional receipt for the premium. Case in 4 Cowen 645, referred to. The case of Hamilton v. L. M. Ins. Co., 5 Barr 339, not in point.

      W. S. Jessup and W. Jessup, for defendants in error.
    Wick-ham, the agent, had no family, and never had a permanent residence in this state, and was at the time in Washington City. The admission of such testimony is much a matter of discretion with the Court: 7 Watts 309; 3 W. & Ser. 293; 8 Ser. & R. 387; 10 Barr 418. There was no evidence that the “ instructions to agents,” or the 'by-laws" were known to the plaintiffs. The company cannot set up in defence the mala fides of their agent in failing to transmit the application. The case of Hamilton in 5 Barr 339, is in point.
   The opinion of the Court was delivered by

Lowrie, J.

This is an action on a contract to insure, and the question whether or not there was any insurance depends very much upon the authority of the company’s agent, through whom the business was transacted. He was appointed “ agent and surveyor” of the company, and “authorized to take applications for insurance, and receive the cash percentage to be paid thereon.” Now, it does not seem easy to make it.plainer, that this is not an authority to bind the company by effecting insurances. He was to survey property proposed to be insured, as we infer from the name of his office, and to receive applications or proposals for insurance, and of course to transmit them to the company; but no word indicates that he could bind the company by accepting a proposition, or making a contract of insurance for them. lie might spring the game, not seize it.

It is argued that it has often been declared that taking a man’s application, fixing the terms, and receiving the premium, are sufficient evidence of an insurance; and so they are, when it thereby appears that the contract is complete, and nothing is wanting but the issuing of the policy. But when, as here, it is plain that the application and payment of the premium amount only to a proposal for insurance, we cannot make a contract out of it.

When we turn to the certificate of the agent taken by the plaintiffs below, this point becomes, if possible, more clear. It certifies that the plaintiffs had “made application for insurance,” and had “ paid cash premium $25 — if not approved by the directors, money to be returned.” It seems impossible to read this as a contract of insurance — it is a proposal to the directors, that is to become a contract when they accept it. The proposal, and the premium advanced with it, go together. If the proposal be withdrawn, or rejected, the premium must be returned. At any time before acceptance of the proposal, the plaintiffs could have withdrawn it, and demanded payment of the premium. They were never bound as by contract, and of course the defendants were not.

But it is said that the loss did not take place for near six months after the application, and that during all that time the defendants neglected to refund the money, and to notify the plaintiffs that their proposal was rejected. And this is thought to be such negligence on the part of the defendants below as justifies and requires the inference that they had approved or accepted the proposal, and here is the root of the error of the Court below.

A principal is bound by the authorized acts of his agent, whether notified of them or not, and therefore the defendants are chargeable with having received this proposal; but that does not help the plaintiffs, for receiving it is .not an acceptance of it. A principal is also bound by the unauthorized acts of his agent, if, on being notified, he does not disavow them; but neither does this help the plaintiffs, for the agent made no contract to insure, and even if he did, no notice of such contract is proved.

What is the true effect of the delay ? It cannot of itself make a contract. A proposal cannot become a contract by delay in rejecting or answering it. A delay in paying $25 cannot make a man liable for $2500. A neglect or delay that has properly a tendency to mislead another, and which is incompatible with honesty, may be charged as a ground of liability; as where one knows that another is acting as his agent in a particular matter without or beyond his authority, and does not promptly disavow his acts. But in this case the plaintiffs had in their own hands the power of correcting the delay; for undue delay in accepting a proposal may be and ought to be treated as a rejection of it, and the proposer may refuse to be bound by a tardy acceptance. A proposal not answered remains a proposal for a reasonable time, and is then regarded as withdrawn. Both parties are interested in its acceptance, and both are expected to attend to it with reasonable diligence.

The exceptions to evidence are not sustained.

Judgment reversed and a new trial awarded.

Woodward, J., dissented.


author: Black, O. J.

text:
    Lincoln versus Wright. Same versus Caldwell.
    1. In an action against an alleged owner of a vessel for supplies furnished to the vessel, other persons who furnished supplies not paid for are competent witnesses for the plaintiff: Though interested in the question, they had no interest in the suit trying and were therefore competent.
    2. The promise of the defendant to pay for the supplies was not binding on him as a promise unless he was liable for the claim: but it was evidence of his liability.
    3. An editorial statement in a newspaper of the sale of a vessel to othor persons is not evidence on the part of the defendants of such sale in order to relieve them from liability for supplies to it, merely because the plaintiff-was a subscriber or usually read the paper. To amount to notice to the plaintiff of such statement, it must appear that he read it.
    4. If however the plaintiffs had read such notice, the defendants would not thereby have been relieved from liability for the supplies if they were the real owners of the vessel; or if not the legal owners, if they retained a substantial interest or control over it, ordering the supplies, and directing the work upon it.
    5. A judge is bound to instruct the jury only on the law itself, and not on its history, object, or purpose.
    6. The object of a register of a ship is not alone to entitle it to the benefits of an American bottom.
    7. A certificate of the register of a ship is not evidence of ownership in favor of the person therein named as owner; nor in actions between other parties.
    8. It is no defence in an action for supplies furnished for a vessel to show that the vessel is registered in the name of another; and the oath of the defendant, in procuring the register, that he was then the owner, is evidence against him that he was the owner at the time the oath was made.
    9. A delivery of the goods in question on board of the vessel by the order of the defendants would be such a delivery as would make them liable for them.
    Error to tbe District Court, Philadelphia.

    These were two actions of assumpsit, one by Caldwell & Co., and the other by Wright & Co., v. Lincoln & Reynolds, as Lincoln & Co. The declarations contained counts for money lent, money paid, for work and labor and materials, for goods sold and delivered, &c. The general issue was pleaded with leave, &c.
    The plaintiffs owned furnishing houses; Caldwell & Co. being jewellers and silversmiths, and Wright & Co. being dealers in china ware and table furniture; and the suits were for goods furnished for the use of the steamship Constitution.
    The defendants, with Captain Loper, early in the year 1850, had the said steamship Constitution built, the title to it being in the names of the three. In the early part of June, 1850, they agreed to sell the ship to Howard & Co., of New York, or to Captain Bissell, who was connected with them, for $75,000. On 11th June, 1850, a bill of sale was executed, which was to be retained by the vendors as security for the payment of the purchase-money. Captain Bissell came to Philadelphia, and about the 20th or 25th of June he assumed the command of the vessel, and directed repairs and alterations, selected mates and engineers, and shipped a crew.
    On 10th June, 1850, Captain Bissell paid on account of the purchase-money of the steamer $15,000 to the defendants; and on 3d July, 1850, Howard & Co. paid $55,000. On the 11th June, 1850, Captain Loper, for the purpose of transferring the papers of the steamer, made oath at the custom-house, that he, Lincoln & Reynolds, were the owners of the vessel, and it was so registered. On 3d July, 1850, Reynolds made oath at the customhouse that E. Lincoln & Co. were owners of the vessel, and it was registered accordingly. On the same day Bissell made oath that Howard & Co. were the owners, and the register of the vessel was changed.
    On the 25th of June, 1850, Bissell ordered from Wright & Co. the goods sued for by them, the bill amounting to $514.49. The goods were delivered on the 3d July. They were charged to Steamship Constitution and owners.
    The bill of Caldwell & Co. was for plated ware for table use, amounting to $217. The goods were charged on June 27, 1850, to Ship Constitution and owners, per Lieutenant Bissell. The goods were sent to his house. They were not delivered for some days after they were charged.
    On part of Wright & Co., it was testified that Lincoln, on being called on in relation to their bill, after the steamer had gone, requested suit to be delayed a few days, which he said might place them in funds to pay the bill.
    J. E. Caldwell, one of the firm of Caldwell & Co., was examined in the suit of Wright & Co., and testified that he inquired of Lincoln whether they intended to pay his bill, and that Lincoln replied that “all the bills would be paid;” but he wished him to wait, as other parties were concerned. By the words other parties were concerned he understood him to say, that they might be placed in funds to pay his bill.
    A. H. Stilwell, a ship-smith, was examined, and said he did work for the ship Constitution; that two or three days before the ship sailed he called at the store of the defendants, and Reynolds said, “We pay these hills, leave them.” He was not paid. He said that Bissell afterwards said, the vessel had gone, and no money was left. Bissell ordered the work.
    Gr. S. Cox testified that he did work for the Constitution; the last work was done by orders of E. Lincoln & Co.; the work was done after the vessel was sold. He said that Lincoln & Co. wanted the bills furnished, so that they might be settled before the ship sailed.
    Another witness said, that he did work for the Constitution under a contract with Loper. After it was completed Bissell wanted alterations made, and Lincoln & Reynolds ordered him to do what Bissell wanted. Bissell directed him to charge nothing to Mm, that the vessel had changed owners. Three or four days before the vessel sailed, Bissell said he had bought the ship, and had nothing to do with the bills.
    Captain Loper testified that he and Lincoln & Co. built the Constitution. It was sold on the 11th June, 1850. Bissell owned it on 12th June. Loper said he paid all the bills up to the time when the ship was sold. The price was $75,000; $10,000 was paid in cash to secure the sale, and the papers, including bill of sale, were held as collateral security for the payment of the balance. He said that when he made oath that he was owner, he meant, that he held the vessel as collateral security.
    A reporter of the Public Ledger was called, and it was offered to prove, that he was a reporter for that newspaper, and that the witness was on board of the Constitution on a trial trip. It was-further offered to give in evidence an article in the Ledger of June 10, 1850, stating, inter alia, that Loper, Lincoln & Co., for whom the vessel was built, had sold it to Lieutenant Bissell. Another article in the same paper, under date of June 17,1850, was offered, to the effect that Captain Bissell was her purchaser. The articles were offered with proof that “plaintiffs read the Ledger.” It was said, in the counter statement, that by this was meant, that the plaintiffs were accustomed to read that paper. This evidence was rejected.
    Hare, J., charged that the defendants may be liable, either as owners, apart from express contract, or on the ground of contract apart from ownership. The defendants were owners on the 10th June, 1850; the question is, whether their ownership was determined by Avhat passed between them and Captain Bissell, before the sale of the goods by the plaintiffs. The sale was by a bill of sale, which was retained as security. If the sale was absolute, so as to transfer to Bissell all the interest of the defendants in the vessel, they would not be liable as owners, even if they retained the legal title as security. But if they retained a substantial interest in and control over the vessel, their liability continued.
    If not liable as owners, the defendants may be liable on the ground of express contract. The declarations of the defendants, or either of them, as to their liability, were referred to the jury. He charged that the alleged promise of the defendants to pay for the goods would not render them liable if they were not so before; but that it was evidence from which their liability might be found.
    In each case verdict was rendered for the plaintiffs.
    Error was assigned to admitting Caldwell to prove remarks by Lincoln as to the goods of Caldwell & Co.; and in admitting Stilwell and others to prove what Lincoln said relative to their respective bills. Also, that the judge overruled the question as to whether it was a matter of notoriety that Lincoln & Co. had sold the steamer to Bissell; 7. In overruling the advertisements in the Ledger; 8. In refusing to charge that a mortgagee of a ship, out of possession, is not liable for repairs or supplies; and that the register, standing in the name of some of the defendants, is compatible with the ownership really being in others; 9. In refusing to charge as requested in the' second point, which was, inter alia, that the register of a ship is not conclusive as to its ownership ; that the sale of a ship may be by parol, &c.; and that the object of the register is only to entitle it to the benefits of an American bottom. 10. In charging that the defendants were not liable unless there was a delivery; but that a delivery on board of a vessel, by their orders, would be such a delivery as would make them liable.

      Wain, for plaintiffs in error.
    As to the 8th assignment, was cited 11 Mass. 37; 9 New Hamp. 380; 15 Johns. 298; 1 Wallace Jr. 359; 4 W. & Ser. 240; 1 Wash. C. C. 226; 6 Mass. 163; 2 Wh. Dig. 564, No. 24.
    As to the 9th assignment, relative to the register of a ship, was cited 1 Wash. G. G. 226; 3 Kent 133; 6 Mass. 163; 14 Johns. 201; Id. 202; Abbott on Shipping 47.

      Guyler, for defendants in error.
    March 30,
   The opinion of the Court was delivered, by

Black, O. J.

These suits were brought for supplies to the steamship Constitution. The vessel was built and for a time owned by the defendants. The defence is that they were not owners at the time the supplies were furnished. There was some evidence of a sale previously. But on the contrary it was proved that Mr. Reynolds, one of the defendants, afterwards made oath that he and Mr. Lincoln, the other defendant, were still her true and sole owners, and on that oath had her registered in their names. Later still, he swore in a proceeding against the purchaser, that he and Lincoln were liable for the debts of the ship. On this, and other evidence, the jury found for the plaintiff in both cases. It is very possible that if every point on which the ruling of the court below is complained of, had been decided in favor of the plaintiffs in error, the verdict would have been the same. Nevertheless, we must reverse this judgment, if there be* error in the record; for the defendants are entitled of common right to a fair trial on legal evidence and with correct instructions. We shall therefore consider the errors assigned.

Several persons who had claims against the vessel were permitted to testify that they called on the defendants after the vessel went to sea, and were told that their bills would be paid, &c. This was right. The Avitnesses having no interest in the record, though they had in the question, Avere competent. On the effect of the evidence itself, the judge made the proper comment, Avhen he said that the defendants’ declaration was not binding as a promise, if they were not originally liable, but that it was some evidence of their original liability. When a man says “I pay those bills,” meaning a particular class of debts, a creditor who brings suit on one of them, has a clear right to prove that such words Avere spoken, for it is an admission by the party that he owes the debts. It is true that such acknowledgments are sometimes made by mistake, or in ignorance, and when that is shown they amount to nothing. But there was other evidence here which tended strongly to show that there was no mistake about it.

After the date of the alleged sale to Captain Bissell, and before the plaintiffs sold the goods, the vessel went down the Delaware on a trial trip. The local reporter of the Public Ledger was on board, and was told by the captain that he owned the vessel. That fact, together with a full account of the trip, was published in the paper. But Avhen the paper was offered in evidence, as showing notice to the plaintiffs of the sale, it was rejected. Generally a man can only be said to have notice of a fact when it is actually communicated to him in such a way that his mind could and did take cognisance of it. There are, however, some things which the laAv presumes to be known to all persons interested, however ignorant they may be in reality. For instance, no man can deny that he knoAvs of a deed which has been duly recorded. But the statement of a fact in a public paper, is either actual notice or else no notice at all. There is no rule of law which gives it the effect of constructive notice. It must therefore be proved that he read it. Otherwise it is no stronger than proof that the fact was orally and publicly uttered at a place where he was not present. To show that he Avas in the habit of reading the paper which contained it, does not help the matter. If he must be presumed to know every fact which happens to be published in a daily paper, merely because he is a subscriber, or an habitual purchaser of it, he can make himself safe only by ceasing to take it, or else by reading every word in it. To do the one would be a heavy burden upon a man of business, and the other would be a serious privation. The law puts no citizen to a choice of such evils. By these remarks we are not to be understood as deciding that if the.plaintiffs had read the article, the defendants would thereby have been relieved from their liability. If they were the real owners of the ship, or retained a substantial interest in, and control over her, ordering the supplies and directing the work upon her down to the moment of her departure from the port, the loose assertion of a third person that she had been sold, whether made orally or in print, would not affect the rights even of persons to whom it was communicated.

A person may be the legal owner of a vessel, and have her registered in his name, without being liable for supplies on the order of the master. But the possession, control, and management of her, the right to direct her destination and receive her earnings, will fix his responsibility whether he has the legal title or not. This was substantially what the Court below said in language perfectly free from vagueness or ambiguity. The exception to that part of the charge is wholly unsustained.

The judge was requested, and refused to charge that the only object of the register is to entitle the vessel to the benefits of an American bottom. This refusal was right, because in the first place the proposition is not strictly true. Though it be the ultimate and main object of the register to fix the national character of the vessel, and though she loses nothing else by being transferred to a foreigner, there are other incidental but useful purposes accomplished by it. For instance, it furnishes a record of her dimensions and age; and, in the case of a steamer, it prevents her from going to sea under the protection of the government without having first complied with the act of Congress for the better security of the lives of passengers. But, supposing the proposition to be true, it had nothing to do with the cause. A judge "is bound to instruct the jury on the law itself, and not on its history, object, or purpose. He does his duty by saying what the law is, without an exposition of its reasons. Such an exposition would have been especially unnecessary in this case. One of the defendants swore that he and the other defendant, his partner, were the owners; and we will not believe that the verity of that oath was in any manner dependent on the object of the law which required him to make it, or upon anything else beside the real facts of the case.

A vessel may be sold, and, because the vendor retains the legal title as security for the purchase-money, he has her registered in his own name; a mortgagee may do the same thing, while the mortgagor keeps the possession; or an unconditional sale may be made, and the register be left unchanged. For these reasons, a certificate of the register is no evidence in favor of the person therein named as owner’, nor in actions between other parties. It will not establish an insurable interest in the registered owner as against an underwriter, nor will it disprove such interest in the assured where the policy has been taken for the benefit of other persons. Neither would it be any defence whatever, in an action for supplies against one for whose profit the ship is navigated, to show that she is registered in another name. But all this does not prevent us from saying that a man’s declaration on oath is some evidence against Mm of the fact therein asserted. It is not conclusive, certainly. The defendants were permitted to show, if they could, that they had no actual interest in the ship; but the jury did not think they succeeded, and if they were wronged in this we cannot help it.

The only remaining error not already noticed, either directly or indirectly, is assigned to that part of the charge in which the judge said that a delivery of the goods on board the vessel by the orders of the defendants would be such a delivery as would make them liable. This is so palpably and self-evidently right that we find it quite as impossible to say anything in favor of it as to make an argument against it. It must pass therefore without any comment. We endorse it in blank.

Judgment affirmed.


text:
    Vanderlip and Wife versus Roe.
    1. If the slanderous words alleged contain a charge of fornication, no colloquium is necessary to be averred.
    2. The charge of fornication involved in the words “ she is a loose character, a bad character,” may be sufficiently averred by an innuendo without a colloquium. Such words involve the charge of fornication.
    Error to the Common Pleas of Susquehanna county.

    This was an action on the case brought in June, 1851, in the name of Elsey E.’ Dailey, by her father, H. Dailey, v. Daniel J. Roe, for words spoken of the plaintiff. Subsequently, before trial, Guy Vanderlip, who had intermarried with her, was added as a plaintiff.
    In the declaration, it was averred that the defendant, intending to injure the plaintiff in her good name, &e., and to cause it to be believed that she had been guilty of fornication, in a discourse which the defendant had of and concerning the plaintiff, in the presence and hearing of one Robert Gillespie and of others, spoke and published concerning the said plaintiff, the false, scandalous, malicious, and defamatory words following; that is to say, “Do you,” addressing himself to (Gillespie), “know that Elsey,” meaning the said plaintiff, “is a loose character?” To which the said Robert Gillespie replied, “ No, I haven’t heard of it before; what do you,” moaning the defendant, “ mean by a loose character, a bad character ?” To which the said defendant, Daniel T. Roe, answered, “Yes, a bad character; it is a common talk around town;” meaning thereby that the said Elsey E. Dailey was a person of a bad and infamous character, and that she had been guilty of fornication and-infamous conduct.
    January 20, 1853, verdict was rendered for the plaintiffs.
    Reasons in arrest of judgment were filed. They were, — 1. The words set forth in the declaration are not actionable. 2. There is no colloquium which connects the words with the subject-matter as contained in the innuendo. 3. The innuendo is not properly deducible from the words as laid.
    The judgment was arrested, and this was assigned for error.
    Little, for plaintiff in error.
    The words are actionable, because they impute in direct terms to an unmarried female such a character as to degrade her. It appears to be the contumely, and not the peril, which gives the action: 2 M. & R. 119; Cooke on Defamation 9; 5 Barr 372. The words, “you have done an act for which I could transport you,” are slanderous, and neither colloquium or innuendo are necessary. 4 M. & Scott 337; 10 Bing. 447. The slander need not be charged in direct and positive terms. 2 Wend. 534; 3 Id. 391; 4 Id. 320. They are to be taken in their natural meaning, the old doctrine of “ mitior sensus” is exploded: Cooke on Defamation 13; 13 Mass. 248; 2 Pick. 320. The declaration in this case charges that the words were designed to convey an imputation of infamous conduct and of' crime, and, after verdict, they are to be construed in a sense which will support the verdict: Cooke on Defamation 13.
    It is only when words, per se, do not import criminality or contumely, that a colloquium is necessary: 3 Penna. Rep. 103, Deford v. Miller; 2 Watts 353, McKennon v. Greer.
    Certainty to a common intent is all that is necessary in pleading.

      Jessup, for defendant.
    The words must be such as can be understood only in a criminal sense, or it must be shown in the introductory part, by a colloquium, that they have that meaning, otherwise they are not actionable: 3 Wilson 186; 6 Term Rep. 694; 3 Bos. & Pul. 372; 1 Binney 542; 5 Id. 219; 5 Johns. 190. It was contended that the words in question did not contain an imputation of any crime liable to punishment, and that they were not such as could be understood only in a criminal sense.
    2 and 3. There was no colloquium to connect the subject-matter with the words as contained in the innuendo. An innuendo cannot add to or extend'the effect of words, nor aver a meaning inconsistent with them. It is an averment which explains the meaning of the words used by reference to facts before ascertained by averment or otherwise: Cooke on Def. 64. It can only connect the words with some matter on the record: 2 Cowp. 683; 1 Bin. 543; 2 Bing. 119; 5 Bin. 220; 3 Watts 93; and therefore a colloquium is necessary to show that a particular meaning imputed by the innuendo is legitimately indicated by the attendant circumstances; and the circumstances should be stated: 3 Penna. Rep. 105-6 ; 2 Cowp. 345; 2 Pick. 328; 12 Mass. 500; 5 B. & Ad. 144.
    Where words are defectively laid, a verdict does not cure the defect: 1 Cowp. 278.
   The opinion of the Court was delivered by

Lowrie, J.

That the charge of fornication involved in the words “she is a bad character, a loose character,” may be sufficiently averred by an innuendo without a colloquium, is certainly proved by the opinion of Chief Justice Gibson in Thompson v. Lush, 2 Watts 20; McKennon v. Greer, Id. 353; and Hays v. Brierly, 4 Watts 393. If no other words were used, then there could be no subject-matter for the colloquium; and then there could be no action, if the colloquium is essential. If other words were used, showing a different intention, the defendant could prove them, and thus contradict the innuendo, by supplying the colloquium. If wre have the whole conversation, or if the part of it which is given contains the charge of fornication, we need no colloquium. If the words laid do not of themselves involve the charge or express the meaning repeated in the innuendo, then the colloquium is the place to insert the other facts which give the color to the words laid, and without it there would be no cause of action.

It is said that these words do not expressly charge fornication, and here lurks the whole error of the Court below. This is, in fact, a return to the old doctrine of mitior sensus. They do charge it expressly or not'at all, unless we falsify their meaning by treating them too kindly. Such words are always understood as an assault upon the bright central virtue of a woman’s character, and it is almost always made in a covert way — such is the norma loquendi. There is some natural and instinctive decency still left, even in the most degraded characters, that prevents them from speaking of this offence in the most direct terms; and yet not decency enough to suggest to them the common language of the people. Their euphemisms consist of slang phrases and strange metaphors, which we are often compelled to hear in the course of judicial investigations, and which we dare not write even for the sake of illustration. What use could be made of a colloquium as applied to most of such cases ? Low slanderers have a norma loquendi that is peculiar to the class, and the meaning of such expressions may be properly averred in the innuendo, and the jury must decide whether the averment is true.

Judgment for the plaintiffs on the verdict.


text:
    Lawson’s Appeal.
    1. Advancement is a question of intention; that which was a gift at first cannot subsequently become an advancement.
    2. Where a father having five children, and being worth about $25,000, quitting the lumber business gave to his two sons his remaining- stock and some other property and money, amounting in all to about $5000, and also the use of his lumber-yard, for which no lease was made or any covenant or agreement to pay rent; and. in speaking of the matter, he said “he had given this to the hoys —that “ he had presented them with it,” &c.; and in relation to the lumber-yard, he said that they were to pay the taxes on it as an equivalent for rent. He had also made presents to his three married daughters, that to the exceptant, on her marriage, amounting to about $1100: Held, that these provisions to the sons were^to be considered as advancements, and that they wei-e not bound to pay rent for the yard.
    3. Though the 48th section of the Act of 29th March, 1832, relating to Orphans’ Courts, forbids the wife’s distributive share of the proceeds of real estate to be paid to her husband without security, yet where the payment was made to the wife, and her husband joined with her in the receipt without objection on her part, it was Held that she was not entitled to charge the estate with the money so paid to her.
    Appear from tbe decree of the Orphans’ Court, Philadelphia. This was an appeal by Rebecca S. Lawson, from the decree of distribution on the estate of Joseph S. Snowden, deceased. The moneys for distribution by the administrators consisted chiefly of proceeds of sale of real estate, sold under proceedings in partition.
    Joseph S. Snowden died intestate in the year 1849, leaving five heirs, and an estate real and personal. The questions presented by this ease, arose out of the distribution of his estate.
    Of his five children, two were sons. . He had been engaged in the lumber business; and in March, 184T, he retired from business and established his sons as his successors. He gave to them his remaining stock, of which no value or estimate was taken, some money, and some other articles, supposed to be in value, altogether, about $5000; also, the use of his lumber-yard or wharf. No inventory or statement of these articles, &c., was made. No charge against his sons was entered upon his books, and no memorandum or obligation was taken for them. He declared to various persons “ that he had given this to the boys” — “that he had presented them with it” — and to one of the witnesses he said: “See what it is to have a kind father, I have presented my boys with the business, &c.” -
    _ He had made considerable gifts also to the daughters — the gift to exceptant on her marriage amounting to about $1100.
    The effort was made to charge the provision to the sons as an advancement. • The estate, exclusive of the $5000 received by the two sons, amounted to above $20,000.
    In the report of the auditor was stated a receipt, on April 16th, 1851, by John L. Lawson and Rebecca his wife, of $3500. Also a receipt of James E. Bell and Eliza his wife, a daughter of the intestate, of $2000; and the receipt of E. A. Welsh and wife, who was another daughter of the intestate, on 13th June, 1851, for $1500.
    The auditor, in his report, remarked that it did not appear that the intestate was aware of the technical difference between a gift and an advancement.
    The Orphans’ Court decided that the provision to the sons was intended as an advancement; that no rent for the wharf had been required or intended by the father; that the' payments to the daughters, though married women, if made to themselves, were good under the Act of 1848, a married woman being regarded by that Act as a feme sole with respect to her separate estate; and that such payment would not be invalidated because the husband was present and sanctioned the payment to his wife, as it was alleged appeared to be the case in this instance.
    Credit was allowed for such payments.
    Error was assigned to the decree that the provision to the sons was not an advancement. 2d. In not charging the sons with the rent of the wharf; and 3d. “ In charging the exceptant with the sum of $3500, paid to the exceptant and her husband;” it being alleged that the same was paid in violation of sec. 48 of the Act of 29th March, 1832, relating to Orphans’ Courts.

      Dropsie, for exceptant.
    The question of advancement is one of intention: 6 Whar. 370, King’s Estate. Its relative value to the whole estate and the proportions of the children’s shares, is to be considered. It wras given to set up the sons. The father’s buying an office for the son, and a commission in the army, wore held to be advancements pro tanto: Note in 3 P. Wms. 318; 8 Ves. 51; 7 Jurist 665. Reference was made to 4 Whar. 523, Lentz v. Hertzog. Inconsiderable sums given to a child, or an allowance to a son at the university or in travelling, held not to be an advancement ; or sums given to a daughter, if not given as a marriage portion or in pursuance of a marriage agreement, 3 Atk. 526; or a gold watch or wedding clothes, Id. 526. It was admitted that in this case the father did not intend to charge these allowances as debts; but it was contended that because they were not debts, it did not follow that they were not advancements.
    2. It w'as contended that rent should be charged for the wharf and lumber-yard, they forming part of the means of establishing the sons in business: 4 Humph. 392.
    3. By the Act of 29th March, 1832, the mode is prescribed for the payment or security of money belonging to married women; but it w'as not pursued in this instance. The Court below declared the payment was good under the Act of 1848; but it was suggested that, under that Act, the money of the wife could not legally be paid to the husband without the written consent of the wife given before one of the Judges of the Common Pleas.
    Ouyler, for appellees.
    It was contended that it was apparent from the declarations of the father that he intended the provision to the sons as an advancement. As to the wharf, it was replied that the auditor states that it was proven that the sons were to pay “taxes, and no more.”
    3. The 48th section of the Act of 29th March, 1832, provides that the money of the wife “ shall not be paid to her husband but it was said that the payment in question was to the wife herself, she joining in the receipt.
    April 3, 1854,
   The opinion of the Court was delivered, by

Woodward, J.

The first error assigned relates to the question of advancement. This is a question of intention; and, applying the principles settled in Levering v. Rittenhouse, 4 Wh. 130, King’s Case, 6 Wh. 373, and Haverstock v. Sarbach, 1 W. & Ser. 392, to the facts in evidence before the auditor, we have no difficulty in affirming the judgment of the Orphans’ Court that this was a gift and not an advancement. Mr. Snowden made no charge against his sons for the money and stock in trade with which he set them up, and they gave him no note or other memorandum to indicate that they owed him anything. He often spoke of it as a present or gift to his sons, and never as an advancement. He had made valuable presents to his married daughters; and it is reasonable to infer that what he gave to start his sons was intended in the same manner to be gifts. Nor is this inference excluded by the proportion of the gift to his whole estate. Twenty-five hundred dollars given to each of two sons is not an extravagant provision for a father worth twenty-five thousand dollars, and whose other three children were married daughters. Deducing his intention from what we have in evidence of the transaction, we think the sound conclusion is that he meant a gift rather than an advancement ; and the character impressed then must remain. That which was a gift at first cannot become advancement, no more than an advancement can become a gift.

2. There is not the slightest ground for the second error. There was not only no lease or covenant to. pay rent for the wharf, but it was in proof that the sons were to have the use of it for the taxes; and of course the proposition to charge them with rent is without a fact to justify it.

3. The 48th section of the Act of 29th March, 1832, relating to Orphans’ Courts, forbids the payment of a wife’s distributive share to her husband without the prescribed security; but where, as in this case, the payment was to the wife and her husband joined in the receipt, without objection on her part, she shall not be admitted to surcharge the estate with the very sum that has been once in good faith paid to her. The Act of 1882 was intended as a protection to married women, not as a snare and an instrument of fraud, as it would become if this exception were tolerated.

■ The decree of the Orphans’ Court is affirmed.

^Lbwis, J., dissented.


text:
    Evans versus See.
    1. On a sale of a house and lot in 1835 which was subject to ground-rent, there was left in the hands of the vendees a portion of the purchase-money to be applied to the payment of arrears of ground-rent, the vendees agreeing to pay them. Above sixteen years afterwards the vendor was sued for the said arrears, and he paid them before the return of the writ, and within a year afterwards brought suit for the same against the vendees: Held, that he was entitled to recover.
    2. In the suit by the vendor, which was brought in 1852, there could not be a recovery against the plea of the statute of limitations under a special count in which it was alleged that at the sale of the house and lot in 1835 the sum claimed was due by the defendants as purchasers, who then promised to pay it to the plaintiff when requested. The statute was a bar to a claim under such count.
    3. The statute, however, did not apply to the common counts, because until the ground-rent was extinguished the plaintiff had no claim against the vendees, and the statute began to operate only from the time of payment, which was within one year before the institution of the suit.
    4. It was not a material consideration whether the vendor would have been legally bound to^ pay the arrears of rent. The payment of the arrears, properly made by him, released the fund which was retained by the vendees, and the vendor was then entitled to recover it.
    5. The rejection of evidence which does no injury to the party who offered it is no ground for reversal.
    Error to the District Court, Philadelphia.

    This was an action on the ease, by R. T. Evans v. R. C. See and C. Remington, brought on 10th September, 1852. The writ was served on See only. It was brought to recover $380.83, portion of the purchase-money of a house and lot on Market street, Philadelphia, sold by Evans to them on the 17th October, 1835. The lot was subject to a ground-rent of $30 per annum. The rent was paid till 1820, but was in arrear from 1820 till 1835. The arrears till 1835, were stated at $450; taxes were deducted, and the balance was $380.83, which amount, by a paper of October 17th, 1835, signed by the three parties, it was stated, was left in the hands of See and Remington, “who assume the payment thereof.” In the declaration was contained several of the common counts in actions of assumpsit, including one for money had and received^ and also a special count. In the latter, it was alleged that on the 17th October, 1835, there was left in the hands of the defendants, out of the purchase-money of the property, ground-rent in arrear to the amount of $380.83, the defendants assuming “ the payment thereofof which amount the defendants then agreed to make payment to the plaintiff when requested; and it was alleged that the plaintiff had been legally called on and required to pay; and actually paid to the administrator of the estate of N. Wain, the owner of the ground-rent, the said amount, on the 1st day of January, 1852. The pleas wore non assumpsit, and actio non aeerevit infra sex annos.

    On the 18th December, 1851, a suit was brought against the present plaintiff, by the administrator of the estate of Nicholas Wain, deceased, whose claim to the arrears appeared from the chain of title given in evidence; and Evans, on 23d December, 1851, paid the arrears to the counsel of the administrator. The defendants refusing to repay the plaintiff, this suit was after-wards brought to recover the money credited on the purchase, on the 17th October, 1835, for the payment of the arrears of ground-rent. In the deed of Evans to the defendants, such arrears were stated to be due.
    On part of the plaintiff was offered an account, stating indebtedness, by R. C. See to Edward Wain, for 17 years’ ground-rent, accruing after the conveyance, by Evans, viz., from Jan. 1, 1835, to Jan. 1, 1852, at $30 per annum, and a statement of taxes on this property, from 1835 till 1851 inclusive; in all amounting to $405.22. To this paper, was an acknowledgment signed by See, that the said taxes had been allowed to him in the payment of the ground-rent, and agreeing to indemnify Wain against any claims for the said taxes.
    This paper was objected to on the ground that it was not between the same persons as were parties to this action, and it was overruled.
    No evidence was offered on the part of the defendant.
    Stroud, J., charged, inter alia, that it is alleged, in the special count, that the defendants, under the agreement of October 17th, 1835, promised to pay. If this is the import of the paper, it results that the money was due on that day, and if so, the statute of limitations was a bar.
    As to the claim under the common counts, he charged, inter alia, that if Evans was liable to Wain, it was by virtue of privity of estate ; and, in this respect, would be liable for the time of his possession, which it was incumbent on him to show. That, in the deed of Evans to See and Remington, hi% title was stated as derived from his mother, but he observed that the time of her death was not shown. He directed the jury to find for the defendants.

    Error was assigned to the rejection of the paper of 25th February, 1852, signed by See. 4. In charging that the plaintiff could not recover, because he had not given evidence of the time he occupied the estate, whereas he should have charged that if there was any evidence that the arrears had been paid to the proper party, the plaintiff was entitled to recover the sum retained by the defendants, to indemnify them against such arrears. 5. In not submitting to the jury the question whether or not the ground-rent, from 1820 to 1885, had been paid by the plaintiff.

      Porter, for plaintiff in error.
    The paper of 25th February, 1852, rejected, was evidence. See, who signed it, was the only defendant in this case, the other party sued not having been served. It was evidence to show that See had settled with Wain for a portion of the ground-rent, viz., for arrears accruing subsequent to the sale by Evans, and had therein, to some extent, recognised Wain as the rightful claimant of the rent. It was also evidence to show that the former arrears had been paid, as such would be the legal implication from it.
    As to the charge. It was not material whether Evans was legally liable for the rent or not. It was sufficient for him to show that he had left the sum claimed in the hands of the defendant, and that the rent, as an indemnity against which it had been left, had been paid.
    But the deed of Evans to the defendants produced on their part and given in evidence by the plaintiff, showed that the latter had been the legal owner of the estate from the death of his mother till the conveyance by the plaintiff. He was thus liable for the rent during that time, and the extent of that time should have been submitted to the jury.
    The plaintiff did not sue to recover money paid by him under an alleged legal liability, but to recover the amount of money left with them for 'their protection, and the possibility of a loss was removed by the payment to Wain. Such payment was made on 23d December, 1851, and the statute did not begin to run till then. It did not begin to operate till he was legally entitled to sue: 14 Ser. & R. 328; 1 Pa. Rep. 492; 1 Blacks. Rep. 353; 1 H. Blacks. 631; 1 Camp. 539; 1 Har. & Gill 471.

      Horn, with whom was Kennedy, contó.
    On the 18th of December, 1851, an action of covenant was brought by Edward Wain, administrator of Nicholas Wain, deceased, who survived Jacob S. Wain and William Wain, trustees, &c., against Robert J. Evans, the plaintiff in error; claiming arrears of a ground-rent of $30 per annum, reserved in a deed from Jacob Shoemaker to Robert Towers, in 1770, out of a property claimed to be the same which the said plaintiff conveyed to R. Calhoun See, and Clement Remington, the defendants, on the 17th October, 1835; and which ground-rent was alleged to be due from 1820 to 1835. It was alleged that the right of Wain to sue for such arrears was not admitted on part of defendant — and that no notice was given to the defendants of the suit by Waln v. Evans. The agreement referred to in the special count being dated in October, 1835, it was contended that a promise arising under it was barred.
    It was said that in order to recover under the common counts, dating the promise on the 23d December, 1851, the plaintiff should show a request on part of defendants to pay the amount paid, or a liability which in law would amount to such; and not being the covenantor in the ground-rent deed, he could be liable only on account of privity of estate: 2 Harris 110. His deed recites that the premises subject to ground-rent were granted by Robert Towers to his daughter Elizabeth, and that the latter died intestate, and on her death the estate descended to R. J. Evans, the plaintiff, as her heir — but when she died did not appear. The plaintiff could not by a voluntary payment render the defendants liable; 8 Term Rep. 613; Step. N. P. 317.
    The ground-rent from 1820 till 1831, as twenty years had elapsed, was presumed to be paid: 2 Watts 214.
    The settlement rejected was a settlement by See individually, Remington having conveyed to him. It had no connexion with the present claim: 5 Barr 274.
   The opinion of the Court was delivered by

Woodward, J.

One man sells a house and lot to another, and leaves $380.83 of the price in the hands of the purchaser, to meet an outstanding lien of that amount. More than six years after-wards, the vendor, being sued for it, pays off the lien, and within a year thereafter brings an action of assumpsit against his vendee to recover the sum left in his hands, now no longer needed to be retained, the lien against which it was indemnity having been extinguished. It would seem to be a clear dictate of natural justice that such a plaintiff should be permitted to recover; but in this case he was not, and we are now to look into the reasons assigned for denying him a verdict.

The special count of the'plaintiff’s declaration was founded on the memorandum of agreement made and signed by the parties on the 17th October, 1835, the date of the sale, and mpre than six years before suit brought.

The plaintiff having set forth the agreement, declared that it bound the defendants to make payment of the said sum to him when thereunto requested. This was evidently a cause of action as of that date, and the defendants having pleaded the Statute of Limitations, we think the Court were right in ruling that the plaintiff could not recover on his special count.

But the statute would not apply to the common counts, because, until the lien was extinguished, the plaintiff had no right of action on them. The statute bars the action, and does not begin to run until the right of action accrues.

The paper of the 17th October, 1835, whether construed to be an undertaking to the plaintiff or not, evidently took away from him the right to sue for the balance of his purchase-money, until the unpaid ground-rent should be provided for. Whilst that remained outstanding, there was the same reason for See and Remington retaining the f>380.83, that there was for leaving it with them on the 17th October, 1835, and therefore Evans could not sue for it; and because he could not sue for it, the statute did not begin to run against him. But as soon as the ground-rent was paid, this sum of money was loosed, and became demandable by action, and then the statute began to run. Within less than a year, however, after this, the action was brought, so that as to the common counts of the plaintiff’s narr. the statute was no bar.

And such appears to have been the opinion of the learned judge of the District Court, for he rested his objection to the plaintiff’s recovery on these counts, not on the statute, but on his failure to show that he was under legal necessity to pay the ground-rent to Mr. Wain. “Has it been shown,” the Court asked, “that Wain was entitled to recover the ground-rent from Evans ?” The judge answered this question in the negative, and so ruled the case against the plaintiff. The question was founded on the assumption that Wain was the party entitled to receive the ground-rent, for had there been any doubt on this point, it would have been submitted to the jury.

Assuming, then, that the payment was made to the proper party, is it of any consequence in the present case that it was made by a party not compellable to make it ? The question here is, whether the payment of the ground-rent did not release the fund pledged as indemnity against it. We think it did. The payment of the 23d December, 1851, extinguished the ground-rent, and the lien of it was gone for ever. The owner of it, being satisfied, could never assert it against the premises sold by Evans to the defendants. If Wain had forgiven it, cancelled it without consideration, or if it had been paid off by a mere stranger, it could not longer encumber the premises or be set up against the plaintiff’s action. But Evans was not a mere stranger or volunteer. If not strictly liable for the ground-rent, he had such an interest in its extinguishment as entitled'him to pay it. He was sued for it, and its removal was indispensable to the closing of his contract of sale.' Instead of resisting Wain’s right to recover from him, he chose to remove the only obstacle in the way of his recovering the balance of his purchase-money from this defendant, and he had a right to do so. The payment was well made by him, made to the proper party, and could not be disaffirmed or recovered back by him, nor impeached by others. From that moment the money in the defendants’ hands belonged, ex cequo et bono, to the plaintiff, and the action, as to the common counts, was brought in good time for its recovery.

The grounds of objection to the evidence contained in the bill of exceptions were inadequate for its exclusion, but the plaintiff was not injured by the rejection of it, because it tended only to prove that Mr. Wain was the proper party to receive the ground-rent, and this the Court assumed. Herein, therefore, is no cause for a reversal; but for the misdirection the judgment is reversed, and a venire de novo awarded.