text:
    Haspel v. Martin, Appellant.

      Mortgage — Building and loan association — ■Fraud—Evidence.
    A mortgage given to a building and loan association in which' the amount stated is larger than the amount actually loaned, is not wholly void, where it appears that although the financial secretary of the asso-. ciation either drew the mortgage or knew its contents, it is not shown that he made any representations respecting the same to the mortgagor, or that he did or said anything to induce the latter to refrain from reading the paper, or asking to have it read. In such a case the association may recover the amount actually loaned.
    Argued Oct. 11, 1907.
    Appeal, No. 129, Oct. T., 1907, by defendant, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1905, No. 3,555, on verdict for plaintiff in case of Lewis A. Haspel,’ Receiver, v. Thomas Martin.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur mortgage.
    At the trial the court gave binding instructions for plaintiff for the amount admitted to be due, i. e., $657.06.
    On a motion for a new trial and for judgment non obstante veredicto, Audenried, L, filed the following opinion:
    This action is brought by the receiver of the United Building and Loan Association upon a mortgage found by him among the assets of that society.
    The mortgage in suit (which is duly recorded) was given by the defendant in 1893 to secure his bond to the building association conditioned for the payment of $1,600, together with interest, the premium on his loan and the dues and fines on his eight shares of stock in the association. The defendant pleaded “Non assumpsit, non est factum, payment, payment with leave, etc.” No notice of special matter was given.
    At the trial the mortgage was offered in evidence by the plaintiff, and, not being objected to, was admitted.
    The defendant thereupon testified in substance as follows: About nine years prior to 1893 he had borrowed $1,000 from the association, giving a mortgage to secure it on his property, No. 2030 Wilder street. Half of this money was spent in extinguishing a ground rent charged on the mortgaged premises; and with the other half he started in business. To secure repayment of that loan he had pledged five shares of stock that he was carrying in the association. In the summer of 1893 the defendant became involved in financial difficulties and an execution was levied upon him for $119, under a judgment obtained by one of his creditors. He thereupon applied to the association for a loan of $600, which he was informed by one Carroll, the financial secretary of the association, was the sum required to pay the difference between the withdrawal value of his stock and the amount of his existing mortgage debt, satisfy the judgment against him and pay the dues on the eight shares of new stock that he must subscribe for in order to obtain the loan, that stock belonging to a series which had been running for a year. Carroll prepared the new bond and mortgage and attended to the application of the money advanced by the society, procuring the satisfaction of the old mortgage and paying the debt for which execution had been levied on the defendant’s effects. For some- unexplained reason, the amount of the defendant’s indebtedness to the association was mentioned in these papers as $1,600 instead of $600. Martin signed them without reading them or asking to have them read to him. He did not say that Carroll misstated their contents to him. Carroll is now a fugitive from justice.
    It was admitted on behalf of the defendant that his indebtedness to the association amounted, on the day of the trial to $657.06. 'Being unable to produce any evidence to throw further light upon the transaction in question, - the plaintiff consented that the verdict should be limited to that amount. The defendant, however, asked for binding instructions in his favor, on the ground that the insertion in the bond and mortgage of an amount of indebtedness exceeding by $1,000 the sum that he had actually borrowed from the mortgagee was a fraud that vitiated the mortgage and operated to prevent the enforcement of the mortgage debt as a lien on his property. This request was refused, and by direction of the trial judge the jury rendered a verdict for the plaintiff for $657.06.
    The defendant now moves for judgment non obstante veredicto, or for a new trial, if that judgment be refused. We are of opinion that both motions should be dismissed and that judgment should be entered in favor of the plaintiff on the verdict. Our reasons are as follows:
    In Sheppard’s Touchstone, page 56, it is said: “If the party that is to seal the deed can read himself and doth not, or being illiterate or blind, doth not require to hear the deed read or the contents thereof declared, in these cases, albeit the deed is contrary to his mind, yet it is good and unavoidable.” This principle was stated by Gibson, C. J., sitting at nisi prius, in Greenfield’s Est., 14 Pa. 489, as follows: “If a party who can read will not read a deed put before him for execution, or, if being unable to read will not demand to have it read or explained to him, he is guilty of supine negligence, which, I take it, is not the subject of protection either in equity or at law.” On the appeal of that cause, it was intimated by the Supreme Court that equity will interfere in a clear case to correct a mistake even where a grantor has failed to read the deed that he signed; and we have no doubt that to-day in such a case relief may be had against fraud and accident upon equitable principles.
    At law, in the trial of an issue under the plea of non est factum, when the plaintiff puts in evidence the mortgage under which he claims, that being duly acknowledged and recorded and presenting no signs of alteration or erasure, the burden of proof shifts and it becomes incumbent on the defendant to offer evidence to show that the instrument before the jury is' not his deed. If no such evidence is forthcoming, the plaintiff is entitled to a verdict. Testimony that the mortgage does not correctly state the debt, but that, although he could read, the defendant neglected to read the paper before he signed it, nothing being said as to misrepresentations to him of its contents, falls far short of what is requisite to sustain the burden on him. Such a defense, whether it shows fraud or mistake, is purely equitable, and, while recognized in Pennsylvania, is governed by equitable principles. Since, then, he that would have equity must do equity, it follows that, at the most, such evidence amounts to a defense only to the extent that the debt named in the mortgage exceeds the real debt.
    There was no evidence in this case to take to the jury the question whether or not the mortgage in suit was a nullity. It was not denied that Martin had signed and sealed it. He did not say that its contents were misrepresented to him. As he might have read the paper but did not, he is presumed to have been acquainted with all that it contained. Such a verdict as that which the defendant asked the trial judge to direct could not possibly be sustained, nor can judgment non obstante veredicto be entered in his favor. Had there been doubt as to the amount which the defendant actually owed upon the mortgage, that question should have been left to the jury. But there was not. The amount of his indebtedness was agreed upon. There was no question of fact open, and there can be no need of a new trial.
    November 18, 1907:
    The application to this case of the principles upon which we have decided it works no injustice to the defendant. He borrowed $600 and agreed to pay it back with interest. The verdict is for that sum with interest at the stipulated rate. He undertook to secure payment of the loan on his property by mortgage. The judgment on the verdict is that his property shall be taken in execution and sold to pay the mortgage debt. The fraud or mistake by which the mortgage was made to refer to the debt secured by it as greater than its true amount was not the fault of the building association, but of his own scrivener and agent. Ordinary care on Martin's part would have led to its discovery and prevention. It would be hard law, indeed, for such a reason to deprive the estate of the association of its lien on his land.

      Error assigned was the charge of the court.

      Edmund Randall, with him James A. Flaherty and Thomas A. Mullen, for appellant.

      Wayne P. Rambo, with him Albert L. Lewis, for appellee.
   Per Curiam,

In the appellant’s statement of the question involved it is assumed that the mortgage was prepared by Carroll, the financial secretary of the building and loan association, mortgagee, and in disposing of the motion for judgment for defendant non obstante veredicto the court took the same view. It is true, as the appellee’s counsel say, that it does not affirmatively appear who actually drew the mortgage. But as Carroll, with whom the defendant’s prior negotiations were had, presented it to the defendant for his execution, it is fairly inferable, in the absence of evidence to the contrary, that Carroll knew its contents; therefore we cannot see that the defense is to be viewed in any less favorable light because it was not affirmatively shown that the mortgage was actually prepared by Carroll: But while it is inferable that he knew the contents of the instrument, it is to be observed that there is no evidence that he made any representation respecting the same to the defendant, or that he did or said anything to induce the defendant to refrain from reading the paper or asking to have it read. This being so, we think the court was right in holding that although the mortgage was drawn for a larger amount than was actually advanced thereon, it was not wholly void, and that the receiver of the association could recover the amount actually advanced to the defendant. This conclusion is so well supported by the opinion of the learned judge below that we deem it unnecessary to add anything further to the discussion.

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Fifth Bluecher Building Association v. Frederick Sylvester, Appellant.

      Vendor and vendee — Contract—Sale of land — Breach of contract — Resale — Measure of damages.

    In an action to recover damages for the nonperformance by the vendee of a parol contract for the sale of lands at public auction, the measure of damages is the difference between the price brought at the original sale, and the price brought at a resale at public auction after full notice to the public and the vendee, upon the same or as advantageous terms as the first sale. Bowser v. Cessna, 62 Pa. 148, followed.
    Argued Oct. 18, 1907.
    Appeal, No. 21, Oct. T., 1907, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1906, No. 3,268, on verdict for plaintiff in case of Fifth Bluecher Building Association v. Frederick Sylvester.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      Assumpsit to recover damages for the nonperformance of a parol contract for the sale of lands.
    Martin, P. J., charged as follows:
    In this case the plaintiff put up at auction the property 2018 Arch street. When it was offered for sale by the auctioneers, the defendant bid $7,000 and it was knocked down to him. In the book offered in evidence, it seems that a stipulation that the sale is subject to the terms of sale as presented on one of the pages of the catalogue was signed “Frederick Sylvester, Attorney.” There is nothing to disclose for whom he was acting and, therefore, until there is some evidence to the contrary he is personally responsible for his acts. An agent for an undisclosed principal is hable individually until his principal is disclosed.
    Upon examination of the page of the catalogue referred to in the salesbook, there appears a condition that “In addition to any other remedies given by law to the seller, it is agreed that: In case of failure by the purchasers to comply with the terms of the sale the seller shall have the option of declaring the sale off and retaining the deposit money on account of liquidating damages for the default, or reselling the property at the expense and risk of the purchasers and of retaining said deposit money on account of any loss that may be occasioned thereby.”
    It has been testified that subsequently to the date of the sale, someone acting for the plaintiff visited Mr. Sylvester with a deed executed and ready for delivery and demanded the balance of the purchase money. He declined to accept the property and said his client would not comply with the terms of the sale. After notice to Mr. Sylvester the property was sold again. At the second sale, on January 31, 1906, it brought $6,300, which was $700 less than the price bid at the first sale.
    Mr. Sylvester has paid to the auctioneers $100. A settlement was made between the plaintiff and the auctioneers, whereby the building association got the benefit of the $100.
    [If you find that Mr. Sylvester agreed to purchase this property at a price of $7,000 and failed to comply with his agreement to take the property, and that the property was subsequently sold, upon the same terms and conditions, and brought but $6,300, then you will be justified in rendering a. verdict against him for the loss which the building association was subjected to by reason of a resale.] [1]
    November 18, 1907:
    Verdict and judgment for plaintiff for $630. Defendant appealed.

      Error assigned was portion of charge as above, quoting it.

      E. Cooper Shapley, for appellant.
    — The trend of the later decisions is to follow the rule that on any parol contract for the sale of land, all that can be recovered is the actual damage and not damages for the loss of the bargain, because to allow otherwise would be to allow all the pecuniary advantages to be derived from specific performance of the contract. In other words, that it is inconsistent to hold that the vendor cannot recover in a suit for the purchase money, but that he can recover what is the same thing by first taking part of the purchase money from a third party and then recover the rest of it from the first vendee: Carner v. Peters, 9 Pa. Superior Ct. 29.
    Unless the same rule prevails in cases of real estate as in cases of chattels, then Bowser v. Cessna ought to be distinguished from cases' of parol agreements for the sale of real estate, where there is no other evidence than of the sale by parol, and of a breach. Certainly, the same rule does not apply as in cases of chattels: Rineer v. Collins, 156 Pa. 342; Eberz v. Heisler, 12 Pa. Superior Ct. 388; Walter v. Transue, 17 Pa. Superior Ct. 94; Huffman v. Bradshaw, 17 Pa. Superior Ct. 205..

      James H. Wolf, for appellee.
    — The case is ruled by Bowser v. Cessna, 62 Pa. 148.
   Per Curiam,

The facts of this case are clearly and concisely stated in the charge of the learned trial judge, and need not be restated. The general question is, what is the measure of damages in an action to recover damages for the nonperformance by the vendee of a parol contract for the sale of lands at public auction? In the statement of the question we have spoken of the sale as a parol sale, by which is meant that while the vendee signed the memorandum in the auctioneer’s book, no written memorandum of any ldnd was signed by the vendor. The plaintiff was allowed to recover the difference of price on a resale. The resale, it is to be noticed, was within about nine weeks after the first sale, and, according to the implied finding of the jury, upon the same terms and conditions. There was no unreasonable delay while the land was falling in market value, and no evidence which would prevent the application of this measure of damages, if it is ever applicable to a parol contract for the sale of real estate at auction. On the contrary, the facts are undisputed that the resale was a public one, fairly conducted, after full notice to the public and the vendee, upon the same or as advantageous terms as the first; in short, that it was bona fide. Upon such a state of facts it was distinctly decided in Bowser v. Cessna, 62 Pa. 148, that the measure of damages is the difference of price on the resale. We see no ground upon which this case can be ruled differently if that decision is still authoritative. It is very earnestly urged by the appellant’s counsel that the trend of later decisions is towards abolishment of the distinction between public and private sales, and establishment of the rule that on any parol contract for the sale of land all that can be recovered is the actual damage, and not damages for the loss of the bargain. But the case of Bowser v. Cessna has been recognized in several late decisions, amongst which may be mentioned Pepper v. Deakyne, 212 Pa. 181, wherein it was distinctly declared upon the authority of that case that a defaulting bidder is hable for the loss occasioned by his failure to comply with the terms of sale, and that the measure of damages is the difference of price on a resale, fairly conducted, upon terms not less advantageous to the purchaser than the first. Notwithstanding the earnest argument of the appellant’s counsel we cannot regard the question raised by this appeal as an open one, but must regard Bowser v. Cessna as authoritatively determining it against his contention.

The judgment is affirmed.


author: Beaver, J.,

text:
    Chew, Appellant, v. Philadelphia.
    November 18, 1907:

      Appeals — Interlocutory order — Assessment of taxes — Quashing appeal.

    An order made on a petition for an appeal from an assessment of taxes in the city of Philadelphia directing that the proceedings shall be under the Act of April 19, 1889, P. L. 37, is an interlocutory order from which no appeal lies.
    Argued Oct. 15, 1907.
    Appeal, No. 261, Oct. T., 1906, by plaintiff, from order of C. P. No. 2, Phila. Co., Sept. T., 1904, No. 3,468, allowing an appeal from a tax assessment in case of Samuel Chew and Mary J. B. Chew v. City of Philadelphia.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Appeal quashed.
    Petition for an appeal from tax assessment.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was the order quoted in the opinion of the Superior Court.

      L. J. Palmer, with him B. H. Innes, for appellants-.

      James Alcorn, assistant city solicitor, with him Mayne R. Longstreth, assistant city solicitor, and J. Howard Gendell, city solicitor, for appellee.
   Opinion by

Beaver, J.,

The appellee moves to quash the appeal in this case, for the reason that it is taken from an interlocutory and not a final decree.

The appellants presented a petition to the court below, setting forth a description of the properties, together with the assessed and actual valuation thereof, and concluding: “Your petitioners, therefore, appeal from the valuations and assessments made by the said assessors and board of revision of taxes; and pray your honorable court to cause a jury of five or seven men to be drawn in the manner and for the purposes set forth and provided in the Act of assembly of April 1, 1836, sec. 52, P. L. 436, and to take such further action in said appeal as is provided by the said act and the laws of this commonwealth.”

A rule to show cause was granted and the members of the board of revision of taxes for the city and county of Philadelphia duly filed their answer thereto. Depositions were taken, and, after argument, the court made the following decree: “Petition allowed. Order to be drawn under Act April 19, 1889, P. L. 37.” From this prehminary order this appeal was taken.

The record does not show that any order under the act of 1889 was ever drawn, as directed by the court, nor does it show that the appeal from the assessments has ever been tried. It is claimed by the appellee that the question of the validity of the assessments is, therefore, still pending.

The general rule in regard to judgments from which an appeal to an appellate court lies is that “No appeal can be taken from a judgment or decree which is not a final disposition of the matter in controversy:” 1 P. & L. Dig. of Dec. 771. There are exceptions to this general rule, such as an appeal from the discharge of a rule to enter judgment for want of a sufficient affidavit of defense or from a decree making absolute a rule to show cause why a judgment should not be opened; but in such cases the appeal is allowed by statute and they are thereby removed from tbe operation of the rule. . The appeal in this case has no statutory authority.

The petition is based upon the Act of April 1, 1836, sec. 52, P. L. 436, and the order of the court from which the appeal is taken directs that the order allowing the appeal from the assessments complained of be drawn, and in consequence the proceedings thereon had, under the Act of April 19,1889, P. L. 37.

Two steps must be taken before the appellants could have a final disposition of their case: first, the order directed by the court should be drawn, and, secondly, the appeal should then be pursued in accordance with the act of assembly to which the court makes reference in its order. If, on the final disposition of the case, the petitioners should secure the reduction in the assessment, which is the object at which they aim, there would be no need of an appeal. If they should be unsuccessful, the question as to whether or not the proceedings should have been under the act of 1836, for which they petition, or under the act of 1889, which the court directs, would come up for final adjudication.

“A decree is not final, within the meaning of the act conferring appellate jurisdiction, unless upon its affirmance nothing remains but to execute it:” National Transit Co. et al. v. U. S. Pipe Line Co., 180 Pa. 224.

In Watkins v. Hughes, 206 Pa. 526, it was held that “An order directing a decree to be prepared in accordance with the findings of the trial judge in an equity suit is not a final decree from which an appeal may be taken.” In that case the Supreme Court said: “The agreement made by counsel September 9, 1901, is not a decree and cannot be so regarded. This court will not proceed, even with the consent of the parties, in cases where no judgment or decree has been entered by the court below: West’s Appeal, 3 S. & R. 92.” In that case it is also said: “An appeal will not he, except to a final decree of the court below: Eckfeldt’s Appeal, 13 Pa. 171; Commonwealth v. Mitchell, 80 Pa. 57; Gesell’s Appeal, 84 Pa. 238; Snodgrass’s Appeal, 96 Pa. 420; Pennsylvania Steel Company’s Appeal, 161 Pa. 571.”

It is unnecessary to cite additional authorities, which are very numerous. They will be found in P. & L. Dig. of Dec. 771 et seq.

The motion to quash must, therefore, be allowed.

Appeal quashed.


text:
    Sarver v. Mitchell, Appellant.

      Negligence — Automobiles—Master and servant.

    The owner of an automobile cannot be held liable for the killing of a child by his chauffeur, where it appears that the accident occurred when the chauffeur was not using the machine in the course of his employment, and on his master’s business, but, on the contrary, in practical opposition to the master’s instructions, and upon a pleasure trip in which the chauffeur’s personal friends or acquaintances were sharing the pleasure with him.
    In such a case evidence of the ownership of the machine is not sufficient in itself. The plaintiff must go further and show that the machine was being used in the course of the master’s business. If he fails to do this he may be properly nonsuited.
    Argued Oct. 9, 1907.
    Appeal, No. 10, Oct. T., 1907, by defendant, from judgment of C. P., No. 3, Phila. Co., June T., 1905, No. 2,642, on verdict for plaintiff in case of Austin C. Sarver v. John K. Mitchell.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for death of a child. Before von Moschzisker, J.
    The facts are stated in the opinion of the Superior' Court.
    Verdict and judgment for plaintiff for $1,000. Defendant appealed. *

      Error assigned was in discharging the rule for judgment non obstante veredicto.

      Thomas Bidgway, for appellant.
    — A nonsuit should have been entered: Lotz v. Hanlon, 217 Pa. 339; Quigley v. Thompson, 211 Pa. 107; Bard v. Yohn, 26 Pa. 482; Towanda Coal Co. v. Heeman, 86 Pa. 418; Rudgeair v. Traction Co., 180 Pa. 333; Murphey v. Transit Co., 30 Pa. Superior Ct. 87; Clark v. Buck-mobile Co., 94 N. Y. Supp. 771; Cavanagh v. Dinsmore, 12 Hun, 465; Sheridan v. Charlick, 4 Daly, 338; McCarthy v. Timmins, 178 Mass. 378 (59 N. E. Repr. 1038); St. Louis S. W. Ry. Co. v. Harvey, 144 Fed. Repr. 806.

      November 18, 1907:

      Chester N. Farr, Jr., with him William C. Mayne, for appellee.
    — Upon proof of ownership in the defendant a presumption is raised that the car was being operated by the defendant’s servant and that the servant was acting within the scope of his employment: Hershinger v. Penna. R. R. Co., 25 Pa. Superior Ct. 147; Hennessey v. Baugh, 29 Pa. Superior Ct. 310; Corpies v. Sand Co., 31 Pa. Superior Ct. 107; Edgeworth v. Wood, 58 N. J. Law, 463 (33 Atl. Repr. 940); Joyce v. Capel, 8 C. & P. 370; Doherty v. Lord, 28 N. Y. Supp. 720; Schulte v. Holliday, 54 Mich. 73 (19 N. W. Repr. 752); Norris v. Kohler, 41 N. Y. 42; Birnbaum v. Lord, 28 N. Y. Supp. 17; Perlstein v. ‘Express Co., 177 Mass. 530 (59 N. E. Repr. 194); Spitzer v. Delivery Express Co., 45 N. Y. Supp. 682; Stables v. Eley, 1 C. & P. 614; Baldwin v. Abraham, 67 N. Y. Supp. 1079; Spear v. Railroad Co., 119 Pa. 61; Penna. R. R. Co. v. Weiss, 87 Pa. 447; Railroad Co. v. Miller, 87 Pa. 395; McCafferty v. Railroad Co., 193 Pa. 339.
   Opinion by

Beaver, J.,

What was said in Lotz v. Hanlon, 217 Pa. 339, applies here: “It was essential to a recovery in this case that it be made to appear that the accident from which plaintiff’s injury (the death of plaintiff’s child) resulted, occurred while the person in charge of the automobile was using it in the course of his employment, and on his master’s business. Plaintiff offered no direct evidence as to this, but, having shown the ownership of the machine to be in the defendant, sought to derive from this circumstance, and this alone, not only the fact that the person in charge was defendant’s servant, but the further fact that he was at the time engaged on the master’s errand. If when plaintiff rested a nonsuit had been ordered, he could not have been heard to complain. Ownership of the machine in eases of this character is at best but a scant basis for the inference that was here sought to be derived from it. It is allowed as adequate only when the attending circumstances point to no different conclusion. In itself, it is but one of a series of circumstances and its significance depends on the extent of the general concurrence of these. If they indicate something different, the scant basis that this single fact otherwise might afford is reduced below the point of sufficiency. Because its value as a probatory fact so entirely depends upon attending circumstances, it is always the duty of the party seeking to establish through it a prima facie case to develop the whole situation, so that its significance could be accurately measured. When he fails in this regard and his evidence leaves the general situation undisclosed, and this without explanation of the failure, he is liable to suffer from the inference that what was not disclosed was prejudicial to his case. Where this occurs, the mere fact of ownership can count for little.”

In this case the plaintiff showed that the automobile which caused the death of his child bore a number which corresponded with that of a machine owned by the defendant. He did not show that the man driving the machine was in the employ of the defendant, nor that it was engaged in any way in the service of the defendant at the time the accident occurred. The chauffeur was not called as a witness. A motion for a nonsuit was refused. The defendant, however, being called as a witness in his own behalf, admitted that the man engaged in running the automobile was in his employ. This, of course, established the second fact necessary to a recovery. Not only did he state, however, that the man was not engaged in running it upon his business, or by his direction, or upon any errand in his behalf, but, on the contrary, that he was using it in practical opposition to the defendant’s instructions and, as the attendant circumstances showed, upon a pleasure trip in which his (the chauffeur’s) personal friends or acquaintances were sharing the pleasure with him.

The trial judge in the court below was correct in holding that the credibility of the defendant as a witness was for the jury and that it did not, therefore, necessarily follow that, because the defendant was not contradicted in regard to the instructions given by him to his employee, that the fact of his acting in violation of instructions was established, but it is to be remembered that the plaintiff gave no testimony whatever as to the fact that the chauffeur was in the employ of the defendant or that he was engaged in his master’s business; and, even if the jury disbelieved the defendant as to his instructions to his employee, there would, therefore, be no evidence whatever as to the character of the errand or business in which the chauffeur was employed at the time of the accident, all the attending circumstances, as narrated by plaintiff’s witness who was in the party at the time the child was killed, tending to show that the occupants of the car were the friends of the chauffeur and not of the defendant.

In the opinion of the trial judge in the court below, discharging the rule for a new trial and for judgment non obstante veredicto, he said: “There cannot be any doubt that at the close of the defendant’s testimony the jury could take it as conclusively proven, if they so saw fit, that the automobile in question was owned by Mr. Mitchell and was operated by his chauffeur, and that the chauffeur was acting within the scope of his general authority at the time the accident happened, and, therefore, that Mr. Mitchell was responsible.” As authority for this position, the judge quoted Hershinger v. Penna. R. R. Co., 25 Pa. Superior Ct. 147; Hennessey v. Baugh, 29 Pa. Superior Ct. 310; Corpies v. Sand Co., 31 Pa. Superior Ct. 107, and a number of other cases referred to in the cases just cited; but in all of these cases the jury was allowed to infer that the drivers of the wagons were servants of the several defendants and that they were in the discharge of their duty as such, because the defendants were either public service corporations or were engaged in a business which employed their wagons, on which their names were painted, upon the streets, in such a way as to lead to the plain inference, and no other, that they were employed in the service of the defendants.

There is a very clear distinction, we think, between these cases and the one under consideration. Here was a private vehicle, driven by the employee of the defendant. Nothing in the vehicle itself or the circumstances attending the trip made by it, when the accident occurred, indicated that it was being used in the service of the defendant. On the contrary, leaving the testimony of the defendant as to this part of the case entirely out of view, the attendant circumstances already referred to indicated that it was being used for a pleasure trip in which the friends or acquaintances of the employee were taken in the vehicle by his invitation. Under such circumstances, it seems to us that the case is governed rather by Kerns v. Piper, 4 Watts, 222, in which it was held, that: “The acts of a servant bind his master only when done in the course of the business committed to him or within the scope of an authority specially delegated,” and Bard et al. v. Yohn, 26 Pa. 482, which decides that: “Where a person employed by one as a servant is using the team of his master for his own purposes and benefit, and, in the absence of and without any directions from the master, uses the team so negligently as to occasion injury to a third party, the master is not hable for such injury, although he assented to the servant using the team for his own benefit.

“If one man loans or hires a horse to another, to be used exclusively for the purposes of the latter, the owner of the horse is in no wise responsible for the negligent manner in which the horse may be used.” See also Towanda Coal Co. v. Heeman, 86 Pa. 418.

There being, therefore, in this case no evidence of the fact of the use of the car by the chauffeur in and about the business of the defendant, and no facts or circumstances in the case from which such a use can be legitimately inferred, the rule for judgment, non obstante veredicto, should have been made absolute.

Judgment reversed.

Oklady, J., dissents.


text:
    Commonwealth v. Sawyer.
    November 18, 1907:

      Criminal law — Cost of transportation of prisoner — Practice, Q. S.— Act of March 31, 1860, sec. 1, P. L. 427.
    A county cannot be held liable for the cost of transporting a prisoner from another state, where such cost has been incurred- at the instance of a captain of detectives, but without compliance with any of the formalities provided by the first section of the Act of March 31,1860, P. L. 427.
    Argued Oct. 8, 1907.
    Appeal, No. 123, Oct. T., 1907, by-George Cochran, from order of Q. S. Phila. Co., Aug. T., 1906, No. 768, dismissing petition for payment of costs in case of Commonwealth v. James Sawyer, alias John Murray, alias Harold Sawyer.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for payment of costs.
    • The opinion of the Superior Court states the case.

      Error assigned was the order of the court.

      H. B. Hodge, of Reilly, Hodge, Scott & Hare, for appellant.

      Ernest Lowengrund, assistant city solicitor, with him Alex. Simpson, Jr., and J. Howard Gendell, city solicitor, for appellee.
   Opinion by

Beaver, J.,

The appellant presented his petition in the court of quarter sessions of the county of Philadelphia, praying for an order directing “the commissioners of the city and county of Philadelphia to draw their warrant on the treasurer of said city and county in favor of your petitioner for the sum of $100,” alleged to have been paid out by the petitioner at the request of the captain of detectives for the city and county of Philadelphia for the purpose of paying the costs of transporting the defendant from the city of Chicago in the state of Illinois, whither he had fled, to the city of Philadelphia, where he “was charged with the crime of larceny of certain goods and chattels of great value, the property of your petitioner.” ■

The claim is based upon the first section of the Act of March 31, 1860, P. L. 427, which is as follows:

“Section 1. That the judges of the Supreme Court, of the court of oyer and terminer and jail delivery, of the courts of quarter sessions, or any of them, shall and may direct their writs and precepts to the sheriffs and coroners of the several counties within this commonwealth, when need shall be, to take persons indicted for felonies, or other offenses before them, who may dwell, remove or be received into another county; and it shall and may be lawful to and for the said judges, or any of them, to issue subpoenas into any county of the commonwealth, for summoning and bringing any person to give evidence in any matter or cause before them, or any of them, and to compel obedience to such writs, precepts or subpoenas, by attachment or otherwise, and under such pains and penalties as other writs or subpoenas are or ought by law to be granted and awarded; and that it shall be lawful for said judges, or any of them, if they see fit to direct such writ, precept, summons, subpoena or attachments, to be executed by the sheriff of the county in which the same is awarded, which said writ, precept, summons or subpoena shall be the sufficient warrant of such sheriff for executing the same throughout this commonwealth, as fully and effectually as if directed to, and executed by, the sheriff of the proper county where issued: Provided, that the reasonable expenses of executing such process, when issued on behalf of the commonwealth, shall be paid out of the funds of the county where issued, and the expenses of moving any person charged with having committed an offense in one county into another county, or of transporting any person charged with having committed any offense in this state from another state into this state for trial, or for conveying any person, after conviction, to the penitentiary, shall be paid out of the treasury of the county where the offense is charged to have been committed.”

To this petition a demurrer was filed on behalf of the county commissioners, based upon three several distinct grounds: 1. “That the petition does riot set forth that any judge of this court, or any other court, directed any writ or precept to any sheriff or coroner of this or any other county of the commonwealth to take the prisoner named therein as defendant into custody to be brought before them;” 2. That it “does not set forth or name any person responsible under said act to authorize the expenditure set forth therein,” and 3, that it “does not set forth that any petition was ever filed in accordance with the terms of sec. 1 of the Act of March 31, 1860, P. L, 427, under which said expenditure could be made and recovered, or that any writ or precept was ever issued directing transportation of the person named therein from another state into this state for trial.” The demurrer was sustained. The appeal is from the decree sustaining it.

The petition sets forth with great particularity that the amount advanced by the appellant to cover the costs of conveying the prisoner from Chicago to Philadelphia was made at the request of the captain of detectives of the city and county of Philadelphia. But it is not shown, or even alleged, that this officer had any authority under the act of 1860, or any other act of assembly, to legally authorize such an expenditure. The first section of the Act of March 31, 1860, P. L. 427, expressly provides, as hereinbefore quoted, that the authority for apprehending persons under circumstances such as appear here shall be upon a writ or precept issued by judges of the Supreme Court, the court of oyer and terminer and jail delivery, or the court of quarter sessions, or any of them, and in the proviso to this section it is enacted, “that the reasonable expenses of executing such process, when issued on behalf of the commonwealth, shall be paid out of the funds of the county where issued, and the expenses of removing any person charged with having committed an offense in one county into another county, or of transporting any person charged with having committed any offense in this state from another state into this state for trial, or of conveying any person after conviction to the penitentiary shall be paid out of the treasury of the county where the offense is charged to have been committed.” None of the provisions of this act of assembly were complied with. So far as appears by the petition there was not even an information made against the defendant. No warrant was issued, no precept from any judge directed to the sheriff or coroner of any county was issued, or even applied for, and none of the formalities of the act complied with.

The appellee in its argument urges other grounds upon which the prayer of the appellant’s petition cannot prevail, such as the lack of power on the part of city and county commissioners to draw upon the treasury for money not specifically appropriated, and others of like fundamental character, but they are not embraced in the grounds upon which the demurrer rests. Confining ourselves strictly to what is contained in the demurrer, we are of opinion that the appellant has not brought himself within the provisions of the first section of the Act of March 31, 1860, P. L. 427, under which he claims the return of the money expended by him at the request of the captain of detectives for the transportation of defendant from the city of Chicago to the city and county of Philadelphia for trial.

We are, therefore, of opinion that the demurrer was properly sustained.

Decree affirmed and appeal dismissed at the costs of appellant.


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    Commonwealth v. Belserawitz, Appellant.

      Criminal law — Evidence—Good character — Reasonable doubt — Charge.
    On the trial of an indictment for assault and battery, the court commits no error in charging on the question of good character and reasonable doubt as follows: “Now, gentlemen of the jury, he has also introduced testimony here as to his good character. As I have said before, probably to some of you jurors, this is substantial testimony. You will take up the testimony upon the one side and the other here, and determine the guilt or innocence of this defendant. After having considered it, if there is a reasonable doubt of the defendant’s guilt, that doubt belongs to him, and should enure to his acquittal. It must be a reasonable doubt, gentlemen of the jury, it must be an honest one; one that springs from a fair, thoughtful, careful consideration of the testimony. If there is such a doubt it is a reasonable doubt, and should enure to the defendant’s acquittal. It has also been held, and it is a rule, that testimony as to the good character, which is substantial, may also of itself create a reasonable doubt in the minds of the jury. Of course, many persons are accused guilty of crime when, up to the time of accusation, they have had a good character.”
    December 12, 1907 :
    Argued Nov. 11, 1907.
    Appeal, No. 42, Jan. T., 1907, by defendant, from judgment of Q. S. Luzerne Co., Sept. T., 1907, No. 456, on verdict of guilty in case of Commonwealth v. Joseph. Belserawitz.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for assault and battery. Before Halsey,'J.
    The opinion of the Superior Court states the case.
    Verdict of guilty, upon which judgment of sentence was passed.

      Error assigned was portion of the charge quoted in the opinion of the Superior Court.

      Stanley Kwryloshi, with him Miner B. Schnerr, for appellant.

      John H. Dando, assistant district attorney, for appellee.
   Per Curiam,

Upon the oral argument of this case the counsel for the appellant rested his claim for reversal almost wholly upon the charge of the court upon the subject of reasonable doubt. Other objections to the charge discussed in the printed brief were not insisted upon, as indeed they could not be in view of the noncompliance with our rules of court relative to the substance of assignments of error and the presentation thereof in the appellant’s paper-book. We remark, however, that we have' considered the evidence with reference to the question of its sufficiency to sustain a conviction of assault and battery, and that we entertain no doubt upon that subject. We shall not incumber this opinion by a recital of the testimony of the child who was alleged to have been assaulted. It is sufficient to say that if what she testified to was believed by the jury, as the verdict implies it was, a verdict of acquittal upon the ground, either that the defendant’s act as described in her direct examination and more fully in her re-direct examination was not intentional, or that she consented, or that it did not constitute an assault and battery, would have been gross miscarriage of justice. The controversy was not over either of these points, but over the question whether the defendant laid hands upon her at all, and this question of fact was settled by the verdict of the jury.

The instructions, of which particular complaint is made, were as follows: “Now, gentlemen of the jury, he has also introduced testimony here as to his good character. As I have said before, probably to some of you jurors, this is substantial testimony. You will take up the testimony upon the one side and the other here, and determine the guilt or innocence of this defendant. After having considered it, if there is a reasonable doubt of the defendant’s guilt, that doubt belongs to him, and should enure to his acquittal. It must be a reasonable doubt, gentlemen of the jury, it must be an honest one; one that springs from a fair, thoughtful, careful consideration of the testimony. If there is such a doubt it is a reasonable doubt, and should enure to the defendant’s acquittal. It has also been held, and it is a rule, that testimony as to good character, which is substantial, may also of itself create a reasonable doubt in the mind of the jury. Of course, many persons are accused and guilty of crime when, up to the time of accusation, they have had a good character.” Reading these'instructions as a whole, as they should be, we cannot agree with the appellant’s counsel that they were calculated to give the jury the impression that if they found such a doubt existed as the law recognizes, then they wére vested with a discretion to determine whether the defendant should have the benefit of that actually existing reasonable doubt. On the contrary, the jury must have understood that if they had a reasonable doubt, it was their duty to acquit. This is the plain import of the language. The instructions were not the same in language or effect as those which were held to be erroneous in Commonwealth v. Rider, 29 Pa. Superior Ct. 621.

The judgment is affirmed.


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    St. Joseph’s Beneficial Society of Columbia, Pennsylvania.

      Corporation — Charter—Similarity of names — Discretion of court— Review.

    On an appeal by one member of St. Joseph’s Roman Catholic Beneficial Society of Columbia, Pennsylvania, from a decree dismissing his exceptions and granting a charter to St. Joseph’s Beneficial Society of Columbia, Pennsylvania, the appellate court will not review the discretion of the lower court in granting the charter, where there is nothing to show that the decree involved an abuse of discretion.
    Argued Nov. 13, 1907.
    Appeal, No. 35, Oct. T., 1907, by William Herbert, from decree of C. P. Lancaster Co., Charter Book, No. 1, p. 363, granting a charter to St. Joseph’s Beneficial Society of Columbia, Pennsylvania.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to application for charter.
    Hassler, J., filed the following opinion:
    All the requirements of the act of assembly and rules of court have been complied with in the application for this charter. It is also in proper form, and for a purpose for which corporations of the second class may be formed, according to the provisions of the Act of April 29, 1874, P. L. 73, sec. 2. Exceptions have been filed objecting to our granting it by William Herbert, who signs the same “on behalf of himself and other members of St. Joseph’s Roman Catholic Beneficial Society.” We cannot consider the exception filed by anyone but William Herbert,- as it is necessary to set out the names of the others for whom he acts: In re Road in Strasburg Township, 23 Lane. Law Rev. 94.

      Two of the exceptions object to our granting the charter, for the reason that it is but an amendment of a charter of another corporation, and that certain provisions of that charter relating to amendments have not been complied with. Whatever may have been the intention of the applicants, this is not an amendment of another charter; it is not applied for as such; none of the requirements for the amendment of charters have been complied with; but it is asked for as a charter for a new corporation, and, if granted, will not change or affect the rights or liabilities of any other corporation, but will form an entirely new one. Whether or not the intention of the petitioners is to take over the property and business and affairs of another corporation is something with which we are not concerned in this application. So long as the purposes are within the purposes allowed by the act of assembly, we cannot inquire into or be concerned with what the intended corporation purposes to do, provided it does not exceed the powers given it by law.
    The other exception is that the charter should not be granted because its name is very similar- to an existing corporation, the name of which is “St. Joseph’s Roman Catholic Beneficial Society of Columbia, Pa.” It is the practice of the courts, and of the state department of this commonwealth, to refuse' charters to intended corporations of the same, or nearly the same, name as existing corporations: American Clay Mfg. Co. v. American Clay Mfg. Co., 198 Pa. 189, and cases therein cited on page 196. The reason for this is that corporations having similar names are liable to interfere with each other’s rights and confuse those having business with them. St. Joseph’s Roman Catholic Beneficial Society of Columbia, Pa., does not object to the name of the new corporation, but, on the contrary, when the proposed charter was read at one of their meetings, they approved it, name and all. Eighty-nine of the ninety members of that corporation ask us, in petitions, to grant it, and one of the members only, who is the expectant here, objects. It is. a corporation of the second class, and, while it may have business with people, other than its own members, and may be confusing to them, it is not a corporation intended to do business, but it is organized for the purpose of the social benefits and intellectual improvement of its members, and to afford them moral and material aid, and is not likely for this purpose to have much business with outside parties, so that little confusion, if any, would be caused by the similarity of names. While the name of this corporation, therefore, is very similar to the name of an existing corporation, they are not exactly alike, as the proposed corporation omits the words “Roman Catholic” from its name. In view of the almost unanimous request of the members-of the old corporation to us to grant this charter, and of the approval by the old corporation, at its meetings, of the charter, and the unlikelihood of much confusion arising in the transaction of its business because of the similarity of title, we dismiss the exceptions and grant the charter.
    December 12, 1907 :
    Exceptions dismissed.

      Error assigned was decree of the court granting the charter.

      William H. Keller, with him John A. Coyle, for appellant.—
    The name of a corporation is a property right, which will be protected by law: American Clay Mfg. Co. v. American Clay Mfg. Co., 198 Pa. 189; First Presbyterian Church of Harrisburg, 2 Grant, 240; Waverly Ladies of the Red Cross, 1 Pa. Dist. Rep. 605; Bradley Fertilizer Co. of Phila., 6 Pa. Dist. Rep. 423; Sons of Progress, 14 W. N. C. 31; United Brethren Hebrew Congregation’s Charter, 11 York, 89; Yaux’s App., 109 Pa. 497; Fort Pitt B. & L. Assn. v. Model Plan B. & L. Assn., 159 Pa. 308; Grand Lodge of the A. O. U. W., 110 Pa. 613.

      D. F. Magee, for appellee.
   Per Curiam,

This is an appeal by one member of St. Joseph’s Roman Catholic Beneficial Society of Columbia, Pennsylvania, from a decree dismissing his exceptions and granting a charter to St. Joseph’s Beneficial Society of Columbia, Pennsylvania. The names of the two corporations are not identical, therefore the case of American Clay Manufacturing Co. v. American Clay Manufacturing Co., 198 Pa. 189, does not absolutely rule the question presented on this appeal. Nevertheless, there is such similarity between the name of the older corporation and that of the proposed corporation that, under ordinary circumstances, a court would be clearly justified in withholding its approval of the later application. On the other hand, the pertinent circumstances and local conditions might be such that no confusion would result. The question was addressed primarily to the discretion of the common pleas, and, if the proceedings be regular, it is only where there has been a plain abuse of discretion, either in granting, or in refusing the application for a charter, that the appellate court will reverse. See Philadelphia Lying-In Charity v. Maternity Hospital, 29 Pa. Superior Ct. 420, and cases there cited; also In re Polish National Catholic Church of St. Francis, 31 Pa. Superior Ct. 87. Having regard to the nature and object of the proposed corporation, and the reasons which the court below assigns for overruling the appellant’s exceptions, we cannot say as matter of law that the granting of the charter involved abuse of discretion. The fact that eighty-nine out of the ninety members of the old corporation assented to and petitioned the court for the granting of the charter, was properly taken into consideration by the court in determining whether confusion in the public mind, and consequent loss to the old corporation, would be likely to result.

The assignments of error are overruled, and the decree is affirmed at the costs of appellant.


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    North Penn Iron Company v. New Jersey Bridge Company, Appellant.

      Promissory notes — Debtor and creditor — Payment.
    A promissory note, though negotiable, given by a debtor to his creditor, does not operate as a payment of a pre-existing indebtedness, in the absence of an agreement between the parties that it shall so operate, and action may still be maintained on the original indebtedness.
    Argued Nov. 19, 1907.
    Appeal, No. 41, Oct. T., 1907, by-defendant, from judgment of C. P. Bucks Co., April T., 1905, No. 16, on verdict for plaintiff in case of North Penn Iron Company v. New Jersey Bridge Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for goods sold and delivered. Before Stout, P. J.
    At the trial the following offer was made by defendant:
    Mr. DuBois: It is proposed to prove that a note for $350.49, was given by the defendant company to the plaintiff company, and that this particular note matured before the bringing of the suit at bar, and also that this particular note is outstanding and is in the possession of the plaintiff company, and that the defendant company is now liable for its payment. Payment upon this particular note was refused by the defendant company.
    Plaintiff objects to the offer on the ground that the mere giving of a note which matured before the suit was brought, and which has never been paid, payment upon which was stopped by the defendant, is not admissible in evidence as a payment on account.
    The Court: The objection is sustained. To which ruling of the court defendant excepts, and a bill is sealed. [1]
    Verdict for plaintiff for $1,069.2,5.
    On a motion for a new trial Stout, P. J., filed the following opinion:

      The second reason assigned complains that the court refused to admit the defendant’s offer as an offset to plaintiff’s claim a certain promissory note for $350.49 given by the defendant to the plaintiff on account of his claim. The plaintiff presented the note for payment at maturity and payment was refused. The note was then protested, and it still remains in the hands of the plaintiff company unpaid. There was no offer to show that the plaintiff accepted the note as a payment, or that there was any agreement whatever that it was so regarded by the parties.
    The first reason assigned complains that the court directed upon plaintiff’s motion the testimony in relation to a certain certified check for $352.25, given by the defendant company for the use and benefit of the plaintiff company, should be stricken out. The purpose of the testimony was to use the said check as an offset to plaintiff’s claim.
    This motion was made at the close of the defendant’s case. All the testimony on this branch of the case showed that the said check was given to take up the said note of $350.49; that the defendant had placed the check into the hands of Mr. John J. Albertson, the engineer in charge, to deliver it to the plaintiff company upon certain terms; that a dispute arose between the plaintiff and the defendant as to whether the terms upon which the check was to be delivered had been complied with by the plaintiff; the defendant contended that they had not, and directed the said Albertson not to deliver the said check. In pursuance of this instruction by the defendant the said Albertson refused to deliver the check. The check has never been paid and still remains in the possession of Albertson. The plaintiff never had possession or control of said check nor derived any benefit therefrom. The plaintiff now sues on the original claim, and the defendant was permitted to go fully into its various claims of set-off, including that upon which it had passed its order not to deliver the said check to the plaintiff.'
    According to the. general doctrine a promissory note, though negotiable, given by a debtor to his creditor, does not operate as a payment of a pre-existing indebtedness, in the absence of an agreement between the parties that it shall so operate, and action may still be maintained on the original indebtedness: 22 Am. & Eng. Ency. of Law (2d ed.), p. 555.
    December 12, 1907:
    It is settled, by a long and unquestioned line of authorities, that when a creditor receives from his debtor the note or check of the latter, or of a third party, on account of a pre-existing debt, such note or check is only collateral to the original indebtedness; that it is taken not as absolute, but as conditional payment; and that the debt will be extinguished only if the collateral obligation be paid: Mechanics’ Nat. Bank v. Kielkopf, 22 Pa. Superior Ct. 128; McCartney v. Kipp, 171 Pa. 644.
    Motion overruled and new trial refused.

      Error assigned was, inter alia (1), rulings on evidence, quoting the bill of exceptions.

      John L. DuBois, for appellant.

      Clifton Maloney, with him Yerkes, Ross & Ross, for appellee.
   Per Curiam,

The assignments of error are overruled and the judgment is affirmed for the reasons given by the learned judge below in the opinion overruling the motion for new trial.


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    Farrell Road.

      Road law — Report of commissioners — Signatures to report — Review— Participation in review — Act of July 2,1901, P. L. 607.
    A report of reviewing road commissioners in proceedings under the Act of July 2, 1901, P. L. 607, signed by only two of the three commissioners, and not showing on its face that all of the commissioners participated in the review, is not fatally defective.
    Argued Nov. 20, 1907.
    Appeal, No. 268, Oct. T., 1906, by M. A. Evans, from order of C. P. Bradford Co., Dec. T., 1905, No. 272, sustaining report of reviewers In re Vacation of Farrell Road in Ridgebury Township.
    December 12, 1907:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and ■ Beaver, JJ.
    Affirmed.
    Exceptions to report of reviewers. Before Panning, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was in sustaining the report.

      H. F. Maynard, of H. F. Maynard & Son, with him W. G. Schrier, for appellants.

      David J. Fanning, with him William Maxwell, for appellee.
   Per Curiam,

This case in the court below was a certiorari to bring up the proceedings in the matter of the vacation of a certain road. These proceedings were regulated by local statutes applying to Bradford county, and consisted of a report of road commissioners vacating the road, and a report of reviewing road commissioners confirming their action. The jurisdiction of and procedure in the common pleas in such a case are defined and prescribed in the Act of July 2, 1901, P. L. 607, which also authorizes an appeal from the order of that court either in confirming the proceedings, or setting them aside. The particular in which it is claimed that the proceedings were fatally defective is that the report of the reviewing commissioners was signed by only two of the three commissioners, and does not show on its face that all of the commissioners participated in the review. Applying the principles of analogous cases, all of the reviewing commissioners must view, but two may make a valid report. The question then arises whether a report signed by only two of the commissioners, which does not show affirmatively that the other commissioner joined in the view, is fatally defective. In determining this question decisions under the road laws of 1836 and 1845 are pertinent. In McCall’s Ferry Road, 13 S. & R. 25, which has been followed in several subsequent cases, it was held that it need not appear in the body of a report of review of a road that all the reviewers viewed; it is sufficient if it be proved to the satisfaction of the court below. It is argued that this rule does not apply here because under the statute the common pleas had only the jurisdiction which the certiorari gave, and therefore could not receive evidence outside the record in aid of the report. But was it necessary to resort to extrinsic evidence in order to sustain the report? In Spring-brook Road, 64 Pa. 451, the same formal defect that is urged as an objection against this report, existed in the report there under review, and it is apparent from the report of the decision that the objection was not overcome by proof in the court below. It was nevertheless held that the confirmation of the report, notwithstanding this formal defect, was not error. We cannot distinguish that case from the present in any particular which would require or justify a different ruling. We conclude, therefore, that the learned judge below was right in relying upon it in overruling the exception. ,

■ The order is affirmed.


author: Rice, P. J.,

text:
    Commonwealth v. DeCost, Appellant.

      Criminal law— Perjury— Evidence — Materiality—■ Appeals— Indictment.

    Testimony may be assigned for perjury either where it directly tends to prove or disprove one side or the other of the main issue, or where under the established rules of evidence it directly tends to do so by corroborating or discrediting other evidence or the testimony of another witness. In the former case the materiality may usually be determined by reference to the pleadings without reference to the other testimony; in the latter case, the testimony being given on some secondary issue of fact arising on the trial of the case, its materiality is ordinarily determined by an examination of the other testimony which it is intended to corroborate or contradict.
    If the question whether or not the materiality of the testimony assigned as perjury was proved, is to be raised on appeal after judgment upon a verdict, it is highly important that the record, including the pleadings in the case in .which it was given, be brought up for examination by the appellate court.
    It is not absolutely essential in an indictment for perjury to set out the precise words of the testimony alleged to be false; it is sufficient to set forth its substance and effect, talcing care, however, that the meaning of the matter set forth is clearly apparent.
    Where the indictment contains several assignments of perjury, in order to convict on' any one there must be either two witnesses, or one witness and corroborative evidence to negative the truth of the matter in such assignments.
    Argued Oct. 8, 1907.
    Appeal, No. 29, April T., 1907, by defendant, from judgment of Q. S. Allegheny Co., Dec. T., 1906, No. 152, on verdict of guilty in case of Commonwealth v. William B. DeCost.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for perjury. Before Evans, J.
    At the trial when Mary Scott Hartje was on the stand, she was asked this question:
    “Q. He (DeCost) testified on the trial of the case of The Commonwealth v. Hooe, that about September 5 or 6, 1903, in substance that you came to his tailoring establishment — ”
    Objected to.
    Mr. Brennen: Under the indictment, stating that it was September 5 or 6, counsel proposes to read a different allegation from that which is in the indictment. We object to that.
    Objection overruled.
    To which ruling counsel for the defendant request an exception. Exception allowed and bill sealed. [1]
    Whereupon the witness testified in response to a question by Mr. Robb:
    “Q. He testified that about September 5 or 6, 1903, you came to his cleaning establishment and interviewed Clifford Hooe, that he asked about the children and that you said the children were well and that they always liked you, Clifford, and that you shook hands with Clifford and had a low-toned conversation with him. Is that true or false? A. That is false. I never was in his establishment; never talked to him. Q. Did you ever see Clifford Hooe in his establishment in your life? A. No, sir.”
    Defendant presented these points:
    4. That in this case there is not sufficient evidence, in the opinion of the court, which would warrant the jury in finding that the defendant swore falsely to the assertion that on or about September 5 or 6, 1903, Clifford Hooe introduced to defendant a woman as Mrs. Hartje, and that a conversation took place between Hooe and that woman. Answer: Refused. [2]
    5. That there is not sufficient evidence, in the opinion of the court, to warrant the jury in finding that defendant swore falsely in relation to the incident of a woman waving her hand from the street car to Hooe, and that the woman was the same woman introduced to defendant as Mrs. Hartje. Answer: Refused. [3]
    8. - That the materiality of the matter alleged in the case to be perjury has not been shown by the commonwealth. Answer: Refused. [4]
    9. That in this case there is not direct evidence even of a single witness as to the falsity of the matter testified to by defendant at the Hooe trial. Answer: Refused. [5]
    10. That before the jpry can convict, it must be satisfied beyond a reasonable doubt of the truth of every fact or circumstance alleged by the commonwealth as tending to establish the charge of perjury, and it must also be satisfied beyond a reasonable doubt that such facts and circumstances make a case inconsistent with the innocence of the defendant. Answer: Refused. [6]
    Verdict of guilty, upon which judgment of sentence of two years in the penitentiary was passed.

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

      J. S. Ferguson, with him W. J. Brennen and J. W. Holmes, for appellant.
    — This case is a most remarkable one, in this: there is not a single bit of direct testimony indicating that from any standpoint appellant committed perjury.

      December 12, 1907 :
    Perjury consists in swearing falsely and corruptly contrary to the belief of the witness, not in swearing rashly and inconsiderately according to his belief: Commonwealth v. Cornish, 6 Binn. 249; State v. Cockran, 1 Bailey (S. C.), 50; United States v. Shellmire, Fed. Cas. No. 16,271; Com. v. Brady, 71 Mass. 78; Williams v. Com., 91 Pa. 493.
    It is an elemental principle that the offense of perjury must be proved beyond a reasonable doubt: Regina v. Yates, 1 Carr. & Marsh. 132.
    It is admitted, of course, that the fact as to what the defendant may have sworn to may be proved by a single witness, but the falsity of such testimony cannot be proven by the testimony of a single witness: People v. Stone, 32 Hun, 41 (39 N. Y. Sup. Ct.); Regina v. Wheatland, 8 C. & P. 238; Schwartz v. Commonwealth, 27 Gratt. (Ya.) 1025; Rhodes v. Commonwealth, 78 Va. 692; Regina v. Yates, 1 Carr. & Marsh. 132; Galloway v. State, 29 Ind. 442; Gandy v. State, 27 Neb. 707.

      John M. Freeman, with'him John S. Robb, Jr., and Harry L. Goehring, district attorney, for appellee.
    — It is not necessary that the indictment shall set forth the precise language used by the defendant in his oath or affidavit. The substance is sufficient: Williams v. Commonwealth, 91 Pa. 493; Commonwealth v. New Bethlehem Borough, 15 Pa. Superior Ct. 158.
    The testimony of Mrs. Hartje is corroborated on material, points by at least five witnesses. It is not necessary that her entire testimony be corroborated by more than one witness, but it is sufficient if there be substantial corroboration on some material point: Williams v. Com., 91 Pa. 493; State v. Miller, 24 W. Va. 802.
    The appellate court will not consider assignments of error where material testimony relating thereto is not included m the record: Commonwealth v. Hasse, 21 Pa. Superior Ct. 291; Commonwealth v. Sober, 22 Pa. Superior Ct. 22.
   Opinion by

Rice, P. J.,

The indictment upon which the defendant was convicted averred that upon the trial of one Clifford Hooe upon a charge of perjury, the defendant, DeCost, willfully, falsely and corruptly testified in substance and to the effect that Mary Scott Hartje on the fifth or sixth day of September, 1903, came to his, DeCost’s, store, and then and there met, shook hands with, and conversed with Clifford Hooe, and that he, DeCost, on a certain morning after the fifth or sixth of September, 1903, saw Mary Scott Hartje wave from a street car to Clifford Hooe.

Testimony may be assigned for perjury either where it directly tends to prove or disprove one side or the other of the main issue, or where under the established rules of evidence it indirectly tends to do so by corroborating or discrediting other evidence or the testimony of another witness. In the former case the materiality may usually be determined by reference to the pleadings without reference to the other testimony; in the latter case, the testimony being given on some secondary issue of fact arising on the trial of the case, its materiality is ordinarily determined by an examination of the other testimony which it is intended to corroborate or contradict. It is seen from this statement of familiar principles that if the question whether or not the materiality of the testimony assigned as perjury was proved is to be raised on appeal after judgment upon a verdict, it is highly important that the record, including the pleadings in the case in which it was given, be brought up for examination by the appellate court. The record in the Hooe case, although offered in evidence, is not printed in the appellant’s paper-book. From this omission we are justified in inferring that the relevancy and materiality in that issue of the matter assigned as perjury, are not seriously questioned; and we add that, judging from the statements of counsel on both sides as to the nature of that issue, they could not be questioned.

But it is very earnestly urged, to adopt the words of appellant’s, counsel, that “there was no proof whatever to sustain the averments of the indictment,” and that “the indictment did not aver the matter on which the case was submitted to the jury.” In the consideration of these propositions, it is to be borne in mind that it is not absolutely essential in an indictment for perjury to set out the precise words of the testimony alleged to be false; it is sufficient to set forth its substance and effect, taking care, however, that the meaning of the matter set forth is clearly apparent: 2 Wh. Cr. L. (9th ed.), sec. 1297; 16 Ency. of Pl. and Pr. 333; sec. 21, Act of March 31, 1860, P. L. 427. It follows that if the proof of the testimony alleged to .have been given substantially supports the narration of it in the indictment, there is no fatal variance. Turning now to the evidence given on the Hooe trial, we find that the defendant, DeCost, testified that about the fifth or sixth of September, 1903, a woman came to his store whom Hooe introduced to him as Mrs. Hartje; that Hooe shook hands and conversed with her, part of the time in a low tone of voice; that after he received this introduction he recognized her voice as that of the person he had heard before over the telephone inquiring for Hooe; and that shortly afterwards he saw the same woman wave her hand from a street car to Hooe. There is no evidence that prior to these alleged occurrences DeCost knew Mrs. Hartje, or would have been able to identify her if he had seen her. Therefore, proof of the giving of this testimony, and of its falsity, would not of itself sustain the indictment, and so the learned trial judge plainly instructed the jury. But the testimony given by the defendant upon the Hooe trial did not rest here. Before he detailed the occurrences at his store, he testified that Hooe worked for him from the second or third of August, 1903, until Christmas, and then his examination proceeded as follows: "Q. Now while he was there did you know Mrs. Hartje? A. I know a lady came over to the store that I received an introduction to by Clifford who he named as Mrs. Hartje. Q. Did you see her here? A. Yes, sir. On the stand here and by the papers. Q. Is that the same lady that was on the stand here? A. Yes, sir.” Later in concluding his narration of the street-car occurrence he said, "So, I stepped out there to see what it was, whether it was the lady that I had received the introduction to through Mr. Hooe, and it was Mrs. Hartje.” Taking the defendant’s testimony as a whole the jury before whom it was given could naturally and reasonably interpret it as an assertion of a fact within his knowledge, that Mary Scott Hartje, the person whose conduct was brought in issue in that case, conducted herself towards Hooe in the manner substantially described in the testimony assigned as perjury. The fact that DeCost did not claim to have the knowledge at the time of those occurrences to testify to more than that the woman who waved to Hooe was the same woman whom Hooe had met at his place and introduced to him, does not determine the question of variance in the appellant’s favor. The conclusive fact is that at the time he gave the testimony he had seen Mrs. Hartje on the witness stand, and therefore had the knowledge, according to his own assertion, which enabled him to testify whether or not she had conducted herself in his presence in the manner in question. His testimony was not merely an assertion of a belief, or an opinion that she was the woman who had so conducted herself, but an assertion that a woman had so conducted herself, and that Mrs. Hartje was the woman. Not only is this the fair interpretation of the testimony he gave upon the Hooe trial, but it is apparent from his reiteration of the assertion upon his own trial that this was the interpretation he intended it to have. Without further elaboration we conclude that there is no substantial variance between the indictment and the proof as to the testimony which the defendant gave upon the Hooe trial.

' In the defendant’s tenth.point the court was requested to charge that before the jury could convict it must be satisfied beyond a reasonable doubt of the truth of every fact or circumstance alleged by the commonwealth as tending to establish the charge of perjury, and it must also be satisfied beyond a reasonable doubt that such facts and circumstances make a case inconsistent with the innocence of the defendant. This point was properly refused. If the defendant testified willfully, corruptly and falsely that Mrs. Hartje conducted herself in the manner testified to, a conviction could be had even though the jury might not be convinced beyond a reasonable doubt that no woman conducted herself in that manner at the time and place in question.

The weight of authority and the general rule require that where the indictment contains several assignments of perjury, in order to convict on any one there must be either two witnesses, or one witness and corroborative evidence to negative the truth of the matter in such assignments: Williams v. Commonwealth, 91 Pa. 493. In the affirmance of the defendant’s first point, as well as in other portions of his charge, the learned judge properly instructed the jury upon the question of the corroboration which it was necessary to produce in support of Mrs. Hartje’s absolute and unqualified denial of the facts testified to by the defendant. No good purpose would be served by a recital of the evidence produced in compliance with the rule. This was quite fully done in the charge of the court, and all that is necessary for us to say upon that subject is that there was ample evidence to warrant the conviction of the defendant, and that the case was submitted to the jury in a fair, clear and adequate charge.

All of the assignments of error are overruled, the judgment is affirmed, and the record is remitted to the court below to the end that the sentence be fully carried into effect, and to that end it is ordered that the defendant be committed to serve such part of his sentence of imprisonment as had not been complied with at the time his appeal was made a supersedeas.


text:
    McCloskey v. O’Hanlan, Appellant.

      Justice of the peace — Appeals—Transcript—Amendments—Names.
    Where an appeal has been taken from a justice of the peace and a transcript of the judgment filed, a petition asking leave to amend by-filing a transcript annexed to the petition will not be granted, where there is nothing on the record to show that there was any fraud practiced, nor anything to show that the transcript attached to the petition was correct and that the one filed was incorrect.

      Ejectment — Answer—Insufficiency of answer — Act of May 8, 1901, P. L. 142.
    In an action of ejectment where the defendant files a plea and answer, and subsequently, in compliance with a rule for a more specific answer, files a second answer, the court has no authority in law to enter a judgment against the defendant for want of a sufficient specific answer.
    December 12, 1907:
    Argued Oct. 10, 1907.
    Appeal, No. 104, Oct. T., 1907, by John O’Hanlan, from order of C. P. No. 1, Phila. Co., Sept. T., 1906, entering judgment against defendant for want of a sufficient specific answer in case of John McCloskey and Richard P. McCloskey, trading as John McCloskey & Son, Agents for John J. Heck et ah, v. John O’flanlan.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Appeal from judgment of a justice of the peace.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were (1) in permitting an amendment of the record and (2). in making absolute the rule on defendant for judgment for want of a sufficient specific answer'.

      Charles J. Sharkey, with him F. Pierce Buckley, for appellant.
    — Whether a transcript truly presents the record is to be determined by the court below upon inspection of the docket and all the papers and evidence before them: Justice v. Meeker, 30 Pa. Superior Ct. 207; Garman v. Glass, 197 Pa. 101.
    There was no authority for the entry of a judgment for want of a sufficient answer. The jurisdiction under the act is special and the record must contain every essential to support the judgment; nothing can be taken by intendment in such a proceeding: Givens v. Miller, 62 Pa. 133; McGinnis v. Vernon, 67 Pa. 149.

      Charles Bay, for appellees,
    cited: Justice v. Meeker, 30 Pa. Superior Ct. 207; Phelan v. Baltimore & Ohio R. R. Co., 14 Pa. Dist. Rep. 634.
   Opinion by

Beaver, J.,

On October 24, 1906, the defendant entered' an appeal in the court of common pleas No. 1 of Philadelphia county, from a judgment by a magistrate in the suit of Richard P. McCloskey v. John O’Hanlan, rendered on October 12, 1906.

On November 21, following, a petition was presented by John McCloskey & Son, per Richard P. McCloskey, and Robert Gillespie, magistrate of court No. 16, reciting the fact “that on the 12th of October, 1906, the said John McCloskey & Son, agents and attorneys in fact as aforesaid (for a number of parties in the said petition named) before said Robert Gillespie, magistrate of court No. 16, in the city of Philadelphia, obtained judgment against the said John O’Hanlan, the defendant above mentioned, in a certain proceeding under the act of assembly of this commonwealth of December 14, 1863, for the recovery of possession of the property Nos. 2605-07-09 North Hope street, Philadelphia, for seventy-seven dollars damages and for costs of suit,” etc., reciting the appeal by the defendant and the entry of an alleged transcript from the docket of the said magistrate; setting forth also, “that the alleged transcript was not a true and correct copy of the proceedings before, the said magistrate, as appears on the record of the docket of the said magistrate, and that a true and correct transcript is hereto attached and marked exhibit 'A,' ” and concluding, “Your petitioners, therefore, pray that a rule be entered on the said defendant to show cause why the record in this case should not be amended by substituting the said exhibit 'A’ as the transcript of the proceedings before the said magistrate, as appears upon the record, on his docket, in the place and stead of the transcript heretofore.”

Upon the filing of this petition, a rule was granted on the defendant to show cause why the alleged transcript should not be amended to conform with the transcript thereto annexed and marked exhibit “A.”

To this rule, the defendant filed an answer, November 26, 1906, alleging: 1. That on December 13, 1905, Patrick P. McCloskey, before Robert Gillespie, magistrate of court No. 16, in the city of Philadelphia, obtained judgment against the said John O’Hanlan for possession of premises Nos. 2605, 2607,2609, Hope street; that, on December 15, 1905, defendant filed his affidavit in the said magistrate’s court, and appealed from the said judgment, and filed his appeal in this court as of December Term, 1905, No. 1589, and that said appeal is still pending. 2. That on October 12, 1906, Richard P. McCloskey before the said magistrate obtained a judgment against the said John O’Hanlan in the sum of $77.00 and for possession of said premises; that, on October 15,1906, defendant filed his affidavit in the said magistrate’s court and appealed from the said judgment and, on October 24, 1906, the said defendant filed in this court, as of September Term, 1906, No. 3311, a true and correct transcript of the proceedings before the said magistrate and so certified by the said magistrate. 3. That defendant is advised and suggests to the court that the proposed amendment is not within the Act of assembly approved May 4, 1852, P. L. 574.

On November 30, 1906, the rule was made absolute.

On January 17, 1907, a statement was filed and a rule upon the defendant to file an answer.

On March 12, 1907, a rule was obtained on the defendant to file within ten days a more specific answer, or judgment sec. leg.

April 1, 1907, a supplemental answer was filed.

April 5, 1907, a rule was obtained upon the defendant for judgment for want of a sufficient specific answer, and April 29, 1907, “Rule absolute.”

It is somewhat significant that there is no allegation in the petition of any fraud on the part of the defendant in securing the transcript which he filed, nor that the same was not signed by the magistrate, nor is it alleged that it was not a true transcript of the record as it existed at the time it was certified. It is also significant that the rule granted was to show cause why the alleged transcript should not be amended to conform, not to the docket of the magistrate, but with the transcript annexed to the petition.

Neither in the order granting the so-called amendment or substitution of the one transcript for the other, nor in the' order making absolute the rule to show cause why judgment should not be entered for a more specific answer, was there any opinion filed. No depositions were taken, nor was there any order, so far as the record shows, upon the magistrate to produce his docket, nor does it appear that his docket ever was produced. It seems to us very clear that the substitution of an alleged transcript for another transcript previously filed is not within any of the statutes relating to amendments. It is certainly not within the provisions of the second section of the act of May 4,-1852, under which the courts are authorized “ to permit amendments by changing or adding the name or names of any party plaintiff or defendant, whenever it shall appear to them that a mistake or omission has been made in the name or names of any such party,” nor does it come within the amendment of that Act of April 12, 1858, sec. 1, P. L. 243, nor yet within the provisions of the Act of May 10, 1871, P. L. 265.

There is nothing upon the record to show in any way how the court reached the conclusion that the so-called transcript attached to the petition of the petitioners was correct, and that the one filed by the defendant was incorrect.

The inherent power of the court to make verbal changes or correct errors in dates and other matters of that nature seems to have been recognized very early. In Caldwell v. Thompson, 1 Rawle, 370, it is stated that on an application to the court of common pleas, where it is alleged that the transcript returned does not conform to the justice’s docket, which is alleged to be erroneous, and an application is made for leave to amend the docket by the transcript, the court below is to determine upon inspection of the docket, and all the papers and evidence before them, what are the true words of the record, and this was recognized by us in Justice v. Meeker, 30 Pa. Superior Ct. 207, as authority for the converse of that proposition, namely, that “A transcript of a judgment of a justice of the peace, filed in the common pleas, may be amended so as to make it correctly show what proceedings were had before the justice,” in which Judge W. W. Porter, delivering the opinion, said: “The judgment is founded upon the record of the justice and the transcript should be made to truly present that record. Whether it does so is to be determined by the court below, upon inspection of the docket and all the papers and evidence before them,” citing Caldwell v. Thompson, 1 Rawle, 370, and Miles v. Tanner, 3 P. & W. 95.

In this case, the court seems to have substituted an alleged transcript not filed for one which had actually been filed in the common .pleas, alleged in the petition which was presented to be erroneous. How was it to be determined whether the transcript on file or the one attached to the petition of the magistrate and the alleged plaintiffs in the suit, was correct? Evidently by a comparison with the record itself. So far as here appears, however, no such comparison was made and no testimony was taken as to what the record showed. If this were the only question in the case, perhaps we might assume that the court did whatever was necessary to be done, in order to determine this question, but inasmuch as another more important question is raised by the record, we dwell upon this in order to emphasize the importance in a case of this kind of having the record full and complete and of having it appear therein upon what the action of the court was based. If “Rule absolute” meant the substitution of one transcript not filed for another already filed, without an examination of the docket itself, we think this order should not have been made.

The second assignment of error relates to the entry of judgment against the defendant for want of a sufficient specific answer. After amendment or substitution of the. alleged transcript, as presented by the plaintiff, the cause proceeded as an action of ejectment. A statement was filed and a plea and answer thereto entered in due course. A rule for a more specific answer, or judgment sec. leg., was taken upon the defendant, and a supplemental answer filed. Upon hearing, this rule was made absolute. The rule was for an entry of judgment according to law. What law? We know of no act of assembly, allowing such a judgment to be entered, and are not referred to any law or rule of court by the appellee which gave the court authority to enter such a judgment, and, as no opinion was filed, the court below gives us no light upon the subject.

The Act of May 8, 1901, P. L. 142, provides, in its second section: “In all actions of ejectment, hereafter to be brought, the plaintiff shall file a declaration which shall consist of a concise statement of his cause of action, with an abstract of the title under which he claims the land in dispute, and, in addition to the plea of 'Not guilty’ now required by law, the defendant shall file an answer in the nature of a special plea, in which he shall set forth his grounds of defense with an abstract of the title by which he claims; and no action of ejectment shall be considered at issue until the plaintiff’s statement and the defendant’s plea and answer shall be filed, nor shall any evidence be received on the trial of said action of any matter not appearing in the pleadings, subject to the power of amendment. The several courts of this commonwealth shall have power, by general rule or special order, to fix the time within which the defendant shall file his abstract of title.”

The appellant refers us to a rule of the court of common pleas of Philadelphia county, the correctness of which is not in any way questioned by the appellee, which is as follows: “In actions of ejectment each party may enter a rule on the other party to file an abstract of his title to the property in dispute and serve a copy thereof in fifteen days, and at the trial so much of the title shown by the said abstracts as is common to both parties shall be taken as admitted. The abstracts shall be verified by affidavit. On the failure of the plaintiff to comply with this rule, judgment of non pros, may be entered against him and, on the failure of the defendant to comply with the rule, he will not be permitted to offer any evidence.”

In this case, however, the penalty pointed out in the act of assembly and in the rule of court, as to the admission of evidence upon the trial, was not imposed, but judgment was summarily entered for the plaintiff and against the defendant. This seems to us to have been unauthorized and the action of the court must, therefore, be reversed.

Judgment reversed and a procedendo awarded.