text:
    Thomas Robb v. The Pennsylvania Company for Insurance on Lives and Granting Annuities, Appellant.

      Banks and banking — Forgery—Rubber stamp.

    The mere fact that a depositor, without knowledge of his bank, had a rubber stamp made which was a substantial facsimile of his bank signature does not, irrespective of depositor’s negligence, relieve the bank from loss which occurs by reason of the unauthorized signing by means of such stamp, by a third person of the depositor’s signature to a check.

      Negligence — Rule as to innocent parties.

    The rule governing loss by one of two innocent parties has no application in cases where the two persons are not equally without fault, but where one owes a duty to the other, to do or to refrain from doing, a particular thing, and has failed in the performance of his duty.

      Negligence — Forgery by a facsimile stamp) — Proximate cause.

    It is not negligence per se for a depositor to have in his possession a rubber stamp, a facsimile of his signature. He is bound to use it and keep it with prudent car? so as to secure it against unlawful use by others, but it cannot be said that his mere possession of the thing was the proximate cause of the mispayment of money to one who unlawfully possessed himself of it and used it to commit forgery.

      Proximate cause — Negligence—Non-negligent act.

    In determining what is proximate cause the true rule is that the injury must be the natural and probable consequence of the negligence, such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act. The same rule, and for a stronger reason, applies when it is sought to hold one liable for the consequences of a lawful and non-negligent act.

      Negligence — What constitutes — Province of court and jury.

    There are cases in which the court can determine that certain omissions constitute negligence, but they are exceptional, those in which the precise measure of duty is determinate, the same under all circumstances. What constitutes negligence when the standard shifts, not according to any certain rule, depends upon the facts and circumstances developed at the trial, and cannot be determined by the court but must be submitted to the jury.
    Argued October 14, 1896.
    Appeal, No. 113, November T., 1896, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1894, No. 275, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Assumpsit to recover the amount of two checks alleged to have been forged.
    The checks were signed by means of a rubber stamp made as a facsimile of a depositor’s bank signature, which had been feloniously extracted from plaintiff’s safe. The court below left the question of plaintiff’s negligence in the custody of the stamp to the jury, who found in favor of the plaintiff for $666. Defendant appealed.
    Other essential facts are sufficiently indicated by the assignments of error and by the opinion of the Superior Court.

      Errors assigned were (1) in refusing to charge as requested in the first point submitted on behalf of the defendant, as follows :
    “ If the plaintiff had a rubber stamp made which was substantially a facsimile of his bank signature, and did not inform the defendant of it, he cannot hold the defendant liable for loss in consequence of the use of that stamp.”
    (2) In qualifying and answering the second point submitted on the part of the defendant, as follows :
    “If the plaintiff had a rubber stamp made which was substantially a facsimile of his bank signature, and left the stamp where others could have access to it, and did not inform the defendant of it, he cannot hold the defendant liable for loss in consequence of that stamp. Answer: I have already stated to you what is substantially the same as that contained in this point; that if he had such a stamp made, and left it where people could have access to it easily in the way I have described — if it was lying around where people could probably stumble on it, or in the. ordinary course of their relation to the business would find it at hand, then the defendant would not be liable for this loss. The question is whether that was the way in which it was left, or whether it was put away in such a manner as you would say was, in view of all the probabilities of the case, sufficient to protect the stamp from being improperly used.”
    (3) In refusing to charge as requested in the defendant’s third point, which was as follows:
    “ Under all the evidence in this case, your verdict must be for the defendant.”
    (4) In'charging the jury as follows:
    “ It is true, undoubtedly, that a man who occupies the relation of depositor to a bank may be so careless in regard to putting in the hands of bad people the means of deceiving the bank, that when the bank is deceived by the misconduct, the fraud, the crime of such people, he cannot say that he should not be charged with the consequences. For instance, supposing a man leaves bank checks tying around his office signed, lying loose in his office, everything else filled up excepting the name; that he leaves them there for days and weeks ; that somebody in his office gets hold of one of those checks, fills it up and presents it to bank; I should say in a case of that sort that you might very reasonably conclude that such a man was careless — so careless that he ought to be held responsible for the consequences, and that it would be grossly unjust and inequitable in such a case to charge the loss upon the bank, because he had put within the power of somebody, not only the means, but almost an invitation to do that which was wrong.
    “ So also I can conceive, in this particular case, using some of the facts of this case, that if the plaintiff had had a stamp made, which was practically a duplicate of his own signature— one which, when impressed upon paper, would produce a signature which to the paying teller of a banking institution would seem to be his own signature — and left that lying around his office, where the office boy, or any clerk or bookkeeper could use it, and that could be shown to the satisfaction of a jury, that it would be quite natural for a jury to say, in that case, that the man’s own carelessness had afforded an opportunity for imposition, and that he ought not to be permitted to recover where an innocent payment was made upon the faith that the signature was a genuine one. That perhaps, however, is a different case and an entirely different case from the present. Supposing you believe that this plaintiff, when he got this stamp back into his possession, if he did, put it in a safe inside of a small safe, which was inclosed in a larger one, locked the door to the small safe, put the key away in a drawer in that safe, and then took, as he says he thinks he did, the key to that drawer, and hid that somewhere else in the safe, then locked the safe, and put the key of the safe away in a box, which was on top of another one, and as he saj^s, nobody in the office but himself or his son had access to either safe, would you or Avould you not say that a man doing those things, trying to protect himself so well as he did in such a case, was guilty of such carelessness as to involve himself, as matter of fairness, as betAveen man and man, in responsibility for the conduct of somebody who surreptitiously found his way, notwithstanding all those guards, into the safe, and got hold of the means of perpetrating what you may call, and Avhathas been called in this case, forgery? Now that is the question for you to settle; if you think that the plaintiff was careless in so doing, that he was negligent, that he Avas doing what he ought to have presumed would open the door to something like what was done in this case; if there was a fraud perpetrated in the manner described, then yon ought to find against him upon that ground. But if, on the other hand, you think that his conduct was business like, that it was natural, that there was no such negligence in it, then you ought not to find against him upon that ground.”

      Frank P. Prichard and John G. Johnson, for appellant.
    While it is true that this exact case has never been presented to the courts, it would seem to be equally true that it falls Avithin general principles which are well established. The rule governing it was well stated by Judge King in Bank of Kentucky v. Schuylkill Bank, 1 Parsons’'Equity Reports, 248, and repeated, by Mr. Justice Sharswood in Penna. R. R. Co.’s Appeal, 86 Pa. 80, as follows : The true doctrine on this subject is that where one of two innocent persons is to suffer from the tortious act of a third, he who gave the aggressor the means of doing the wrong must alone bear the consequences of the act: Grant on Law of Bankers, 17; Morse on Banks and Banking, 2d ed. 331; Van Schaack on Bank Checks, 119; Young v. Grote, 4 Bing. 253. This last ease was followed by the Supreme Court of Pennsylvania in Garrard v. Haddan, 67 Pa. 82.
    The same principle, although under different facts, was applied in the case of United States v. National Exchange Bank, 45 Fed. Rep. 163.
    And the same principle has been recently laid down in an elaborate opinion and under similar facts in the case of Burnett & Wood’s Savings & Building Co. v. German Nat’l Bank, 3 Ohio N. P. Cases, 84. Even if the court did not err in leaving the question of negligence to the jury, the instructions given by the court were insufficient and erroneous, and laid down a wrong standard of negligence.

      Samuel Gustine Thompson, for appellee.
    As to the liability of the drawer or depositor for carelessness in keeping the check book, etc., cited Morse on Banking, 480; Belknap v. Bank, 100 Mass. 376 ; Leas v. Walls, 101 Pa. 64; Brown v. Read, 79 Pa. 372; Zimmerman v. Rote, 75 Pa,. 191; McIntosh v. Bank, 123 Mass. 393.
    January 18, 1897:
   Opinion by

Rice, P. J.,

This was an action to recover the amount of a bank deposit. The defense was that the money had been paid out on checks purporting to be drawn by the plaintiff. The jury have determined by their verdict that the signatures were forged, and no question is raised as to the correctness of this finding. But there was evidence that the signatures were made by a third person by the unauthorized and criminal use of a rubber stamp, which the plaintiff owned and kept in his safe. Upon this evidence a novel and interesting question is raised. The defendant’s first proposition is, that if a depositor, without the knowledge of his bank, has a rubber stamp made which is a substantial facsimile of his bank signature, he cannot hold the bank responsible for a loss which occurs by reason of the unauthorized signing by a third person of the depositor’s signature to a check by means of this stamp. It will be observed that this proposition assumes that the depositor is responsible for the loss although there be no negligence on his part in the manner of keeping the stamp. If he keep it as securely as possible, if, for example, he should keep it securely locked in the best modern safe, to which no other person has access, and a burglar should break into the safe and use the stamp to affix the depositor’s signature to a check, and the bank should honor the check, the loss would fall on the depositor. This is not an extreme statement of the defendant’s position. But it is not unlawful for a man to have a rubber stamp by which a facsimile of his written signature may be affixed to papers. Nor is it so extraordinary a thing as to warrant a bank in presuming, without inquiry, that a depositor will not possess nor use such a stamp for any purpose. If the owner place it in the hands of a third person for the purpose of affixing his signature to certain papers, and he without authority, use it to forge the signature of the owner to checks, it might well be argued that the bank honoring the checks should not be responsible for the loss.

In such a case there might be propriety in applying the maxim that where one of two innocent persons must suffer, he should suffer who by his own acts occasioned the confidence and the loss. In the case supposed the loss would be traceable to the act of the owner of the stamp in the selection of the agent to use it. In the case in hand it was traceable, proximately, to the criminal act of a third person in the use of the stamp, and more remotely to his tortious, if not criminal, act in possessing himself of it against the will of the owner. In 'the former case there would be an element of negligence in the care of the stamp, while in the case in hand (looking at it from the present standpoint) there is none. These distinctions are, well illustrated in Penna. R. R. Co.’s Appeal, 86 Pa. 80, where it was held that if the owner of stock intrusts the certificates with blank powers of attorney to an agent for safe keeping, who fraudulently transfers them to a third party, who, in turn, without the knowledge of the fraud, has them transferred to himself, the owner cannot recover from the corporation for the loss. This decision was put upon the ground that the owner had been negligent, and should not-be permitted to shift from herself to the corporation the loss which resulted from the dishonesty of her own agent. Said Sharswood, Justice: “ Where one of two parties, who are equally innocent of actual fraud, must lose, it is the suggestion of common sense, as well as equity, that the one whose misplaced confidence in an agent or attorney has been the cause of the loss shall not throw it on to the other. As Judge King has well expressed this principle in the Bank of Kentucky v. Schuylkill Bank, 1 Pars. Eq. Rep. 248: ‘ The true doctrine on this subject is that, where one of two innocent persons is to suffer from the tortious act of a third, he who gave the aggressor the means of doing the wrong must alone bear the consequences of the act.’ ” Neither statement of this important principle sustains the defendant’s proposition now under discussion; and in the case cited Judge Sharswood conceded, that had the certificates of stock been lost or stolen from the possession of the owner the corporation would have been responsible for permitting the fraudulent transfer. See also Biddle v. Bayard, 13 Pa. 150.

We are referred to the decisions relative to the alteration of negotiable instruments by filling up blanks left by the maker. But in these cases there is an element of either negligence or of agency. It is a well settled principle in the law of negotiable securities, that, if the maker of a bill, note or check issue it in such a condition that it may be easily altered without detection, he is liable to a bona fide holder who takes it in the usual course of business before maturity. “ The maker ought surely not to be discharged from his obligation by reason or on account of his own negligence in executing and issuing a note that invited tampering with: ” Brown v. Reed, 79 Pa. 370, citing Phelan v. Moss, 67 Pa. 59; Garrard v. Haddan, 67 Pa. 82; Zimmerman v. Rote, 75 Pa. 188. According to these decisions the question is not, whether the maker so drew the paper as to make it possible to alter it without detection, but whether he used ordinary care and precaution. In Leas v. Walls, 101 Pa. 57, the instrument was a printed blank note with an open space for the insertion of the amount, the word “ dollars ” being printed at the end of the space. The successful alteration of the amount from eight to eighty was made possible by the maker’s omission to close up the space so that not even a single letter could be inserted. It was held, however, that the question whether the maker was negligent was clearly a question of fact for the jury. “ In these circumstances to hold that tbe defendant was so palpably guilty of negligence, in not taking-sufficient precautions against forgery, as that the jury could not be permitted to determine the question, and the court must determine it as a matter of law, would be equivalent to holding that the maker of a negotiable instrument must so execute it as to prevent the possibility of alteration in any event. Such a doctrine would be monstrous and contrary to every legal principle.”

The rule, that where one of two innocent persons must suffer loss that party who did the act which was the occasion' of the loss ought to bear it, is often misapplied to cases where the two persons are not equally without fault, but where one owes a duty to tbe other to do, or to refrain from doing, a particular thing, and has failed in the performance of that duty. But a man’s responsibility, even for his negligence and that of his servants must end somewhere. As was truly remarked in Hoag v. Lake Shore, etc. R. R. Co., 85 Pa. 293, there is possibility of carrying an admittedly correct principle too far. It may be extended so as to reach the reduetio ad absurdum, so far as it applies to- the practical business of life. The doctrine as to remote and proximate cause as held in Pennsylvania has been thus stated in many cases: “ In determining what is proximate cause the true rule is that the injury must be the natural and probable consequences of the negligence; such a consequence, as under the surrounding circumstances of the case might and ought to have been foreseen by the wrong doer as likely to flow from his act.” Hoag v. R. R. Co., supra; Pass. Ry. Co. v. Trich, 117 Pa. 390; Swanson v. Crandall, 2 Pa. Superior Ct. 85. The same rule, and for a stronger reason, applies when it is sought to hold one liable for the consequences of a lawful and non-negligent act. To apply the maxim invoked here, without' regard to the question whether the act was the remote or proximate cause of the injury, would establish a degree of responsibility “ quite beyond any legal limitations which have yet been declared.” This would be a striking illustration of the danger of carrying an admittedly correct principle too far.

A bank is bound to know the signature of its depositors, and if it pay out tbe money on a. forged check it cannot charge the depositor with the amount, but as against him must bear the loss. It may be conceded that the relation of the depositor tó the bank implies a duty on his part to subject it to no extraordinary risks with regard to payment of bis checks which he may avoid by the exercise of ordinary care and prudence. But we cannot assent to the proposition that it is negligence per se for him to have in his possession a harmless and useful thing; and one lawful for him to have^ but which, in the hands of a thief breaking into his house or his safe, may be used to forge his signature. If he commit the use of it to an agent, selected by himself, or leave it in such a place as to invite the use of it for illegitimate purposes, there would be plausibility in the contention that he should be deemed to contemplate such use. as one of the natural and probable consequences of his act. But, where he has used due care in securing it against unlawful use by others, it canilot be said that his mere possession of the thing was the proximate cause of the mispayment of the money to one who unlawfully possessed himself of it, and used it to commit a forgery.

The -defendant’s second proposition is, that, even if the court did not err in leaving the question of negligence to the jury, the instructions given by the court were insufficient and erroneous, and laid down a wrong standard of negligence.- In order to discuss tins proposition properly, it will be necessary to state some of the undisputed facts. t In 1893 the plaintiff as president of a corporation had occasion to send out a large number of invitations to a banquet, and in ordér to save himself the labor of writing his name so often-, had a rubber stamp made which would make.a facsimile of his signature. For a time the stamp was kept in the company’s office, but after he resigned the presidency it was sent to his private office which he rented from a gentleman who had the adjoining office. ' With this office he was entitled to the services of an office boy, of about sixteen years of age. For about nine months he employed this boy for errands and messages, including the sending of him to bank to draw money on checks. Fie never had occasion to doubt the boy’s honesty. When the rubber stamp was returned to the plaintiff from the corporation office, he placed it in a compartment inside of a fire proof safe. He locked this compartment and put the key in a drawer in the safe, behind some papers, and covered it up. He then locked the drawer and put the key in another unlocked drawer in the safe. He then locked the safe and put the key in a little box, which he put in a wooden drawer or box, and this was kept on top of another safe. The plaintiff’s surmise was that the office boy had watched his moves, found where he kept the safe key, opened the safe and rummaged around until he found the stamp, and with it signed the two checks. Assuming this theory to be correct, it turned out that, notwithstanding the plaintiff’s precautions to guard the stamp, it was not kept where it would be absolutely inaccessible to others. It follows that an unqualified affirmance of the defendant’s second point would have been equivalent to binding instructions to find for the defendant. But, for the reasons given in our discussion of the first proposition, the defendant was not entitled to such instructions. The practical effect would be to hold the owner of a rubber stamp up to the same standard of responsibility as the owner of a vicious animal: in other words, to hold that he is bound to keep the stamp at all hazards where a trespasser or a thief cannot possibly get possession of it and use it. This is not the standard of his responsibility to the bank in which he is a depositor or to the public. He is not an insurer against its' unlawful use, but it may be conceded that he is responsible for the consequences of his negligence in keeping it. He is bound to exercise the care of an ordinarily prudent man. To adopt the language of the learned trial judge ; “ was it put away in such a manner as was, in view of all the probabilities of the case, sufficient to protect the stamp from being improperly used? ” This was a question of fact for the jury, and was fairly submitted. There are cases in which the court can determine that omissions constitute negligence, but they are exceptional — those in which' the precise measure of duty is determinate, the same under all circumstances. What constitutes negligence when the standard shifts, not according to any certain rule, depends upon the facts and circumstances developed at the trial, and cannot be determined by the court, but must be submitted to the jury: D., L. & W. R. R. Co. v. Jones, 128 Pa. 808, and cases there cited.

But complaint is made that the court set up an erroneous standard of negligence. We do not think so. The illustration used by the learned judge in his answer to the second point was not intended as a standard to govern the jury. He evidently had in mind the rule that is laid down in the cases heretofore cited relating to the alteration of a negotiable instrument in which the maker has carelessly left blanks “ so that it may be easily altered without detection.” Following the rule laid down in those cases, he told the jury that under the facts of the supposed case the owner of the stamp would clearly be guilty of negligence and the bank would not be liable for the loss. But, recognizing the distinctions pointed out in Leas v. Walls, supra, he did not undertake to decide that under the actual facts of the case on trial, the plaintiff had or had not exercised the precaution of a prudent man in guarding the stamp against improper use.

The defendant has no just cause to complain of the submission, or of the manner of the submission, of that question to the WJ-

Judgment affirmed.


source: Caselaw Access Project

author: Reeder, J., Smith, J.,

license: Public Domain

text:
    Commonwealth v. Samuel M. Zacharias, Appellant.

      Criminal law — Constitutional law — Druggists' acts of 1887 and 1891.
    The act of May 24, 1887, P. L. 19,0, as amended by the act of June 16, 1891, P. L. 313, prohibiting unqualified persons from, engaging in the business of retailing drugs, is unconstitutional.

      Druggists — Certified pharmacist — Police regulation.

    If a statute is only directed against certain persons who ar'e engaged in a given business or against commodities in such manner as to discriminate between those who are engaged in tire same trade or pursuit, in aid of some, at the expense of others, such statute is not a police but a trade regulation. The act of 1891, in that it permits certain unqualified persons to engage in the retail drug business and excludes others, is not an exercise of police power, but presents a condition of class legislation and is therefore unconstitutional, and falls under the ruling of Sayre Borough v. Phillips, 148 Pa. 482.
    Smith, J. concurs in the judgment of reversal but holds that apart from any question of constitutionality a punishable offense has not been committed under the two statutes, and that the case at bar is ruled by Com. v. Johnson, 144 Pa. 377.

      Argued Oct. 16, 1896.
    Appeal, No. 124, Nov. T., 1896, by defendants, from judgment of Q. S. Phila. Co., January Sess., 1896, No. 690, on verdict of guilty.
    Before Rice, P. J., Willard, Wickham, Reeder, Orlady and Smith, JJ.
    Reversed.
    Motion in arrest of judgment.
    Under an indictment for engaging in business of druggist without being registered the jury found a verdict of guilty, and specially found the following facts agreed upon as a special verdict.
    It is hereby agreed that the jury may find the following facts:
    That the defendant, Samuel M. Zacharias, at and before the bills of indictment were found, was part owner of the three drug stores at Forty-fourth and Girard avenue, Forty-second and Westminster streets, and Forty-fifth and Brown streets, in the city of Philadelphia, commonwealth of Pennsylvania.
    That as such he was part owner of the stock and fixtures of said stores, and received from the sales there made a proportion of the profits.
    That he employed in the stores regular registered pharmacists to sell drugs and medicines and to put up prescriptions to whom he paid salaries.
    That the defendant himself did not in any way put up prescriptions or personally sell the drugs, but that the said defendant has never passed an examination before the State Pharmaceutical Board, neither has he received a certificate therefrom, either as a registered manager or a qualified assistant.
    The court allowed a motion in arrest of judgment to be filed, and upon argument overruled the same and sentenced. the defendant.
    Defendant moved in arrest of judgment, which motion was overruled by McMichael, J., in an opinion reported in 5 Dist. Rep., 475.
    Verdict of guilty and sentence that defendant pay a fine of $100 and costs of prosecution and stand committed until this judgment be fully complied with. Defendant appealed.

      Errors assigned were, (1) overruling defendant’s motion in arrest of judgment; (2) entering judgment on verdict and sentencing defendant.

      Charles F. Pancoast and John G. Johnson, with them Frank P. Prichard, for appellant.
    The verdict establishes only that defendant, not being a registered pharmacist, was part owner in certain drug stores, the drugs and prescriptions being compounded and sold by registered pharmacists employed and paid by defendant.
    Two questions therefore arise.
    1. Do the facts constitute a misdemeanor defined and punished by act of May 24, 1887, as amended by act of June 16, 1891?
    2. If so, is the latter act constitutional ?
    1. The acts in question can best be construed by considering the previous legislation on the subject, which is as follows: Act of April 4, 1872, P. L. 905 ; May 24, 1887, P. L. 189. The act of 1887 was construed in the case of Com. v. Johnson, 144 Pa. 377. The act of 1891 is clearly unconstitutional and falls directly within the rule as stated in the case of Sayre Borough v. Phillips, 148 Pa. 482, which was approved in Com. v. Harmel, 166 Pa. 89; Shamokin Borough v. Flannigan, 156 Pa. 43.
    It is not claimed that where a subject is within the police power, the court can review the wisdom of the legislature so long as it merely regulates the manner of its conduct, or even forbids the manufacture of a harmless article, as oleomargarine. But to permit certain persons to own and conduct a business by a registered manager, and forbid others, the character of the business or of the persons showing no reason fo^’ the distinction, is not to regulate a business but an illegal attempt to legislate for a class: Yick Wo v. Hopkins, 118 U. S. 356; Com. v. Gardner, 133 Pa. 284; City of Titusville v. Brennan, 143 Pa. 642. Reversed, 153 U. S. 289, on ground that it was an attempt to regulate interstate commerce. As to control of discretion see Webber v. Virginia, 103 U. S. 344; Jacob’s Appeal, 98 N. Y. 98; Welton v. Mo., 91 U. S. 275; Coe v. Errol, 116 U. S. 517; Loux v. Fox, 171 Pa. 68.

      J. Campbell Lancaster, with him Samuel A. Boyle and George S. Graham, district attorneys, for appellee.
    Certainly it would seem that a man who buys the stock, employs the clerk and receives the profits, is engaged in the business; that this construction is neither strained nor unusual may be conceived from a consideration of cases of other states construing similar acts. In State v. Norton, 67 Iowa, 641, the expression “ conduct a drug store ” was held applicable to a proprietor who took no part in the actual selling of the drugs. In People v. Rontey, 4 N. Y. Sup. 285, affirmed in 117 N. Y. 624, the expression “ open or conduct a pharmacy” was held to apply to a proprietor: State v. Forcier, 65 N. H. 42. In the Pharmaceutical Society v. London Supply Association, Law Rept. 4 Q. B. D. 313, the pharmacy act prohibited any person under a penalty, not being duly registered, etc., from keeping an open shop for the sale of poisons, or using the name of chemist or druggist. And it was held that the penalty might be recovered from an incorporated company for keeping a chemist’s shop, although the business of such shop was managed by duly registered chemists as servants of the company. This case was reversed in Law Rept. 5 Q. B. Div. 310, but solely on the ground that a corporation did not answer the definition of “person,” and therefore, as a corporation, the defendant was not liable for the penalty.
    That legislation regulating the drug trade as a proper exercise of the police power is undoubted, as the cases of Dent v. W. Va., 129 U. S. 114, Smith v. Alabama, 124 U. S. 465, and Railway v. Alabama, 128 U. S. 96, will show.
    The fact that the drug business is a proper subject for legislative restriction under the police power has never been denied, and it is very doubtful that if the subject-matter of an act once be conceded to be within the police power, the manner of its exercise can be reviewed by the courts: Munn v. Ill., 94 U. S. 113; Mugler v. Kansas, 123 U. S. 623; Powell v. Com., 114 Pa. 265; Powell v. Penna., 127 U. S. 685.
    January 18, 1897:
   Opinion by

Reeder, J.,

The defendant was indicted for carrying on, as owner, a retail drug store in the city of Philadelphia. On the trial of the case, the district attorney and the defendant agreed that the jury should find the following facts: “ That the defendant, Samuel M. Zacharias, was part owner of three drug stores — at 44th and Girard avenue, 42nd and Westminster streets, and 45th and Brown streets, in the city of Philadelphia, commonwealth of Pennsylvania.

“ That as such he was part owner of the stock and fixtures of said stores, and received from the sales made a proportion of the profits; that he employed in the stores regularly registered pharmacists to sell drugs and medicines and put up prescriptions, to whom he paid salaries; that the defendant did not himself, in any way, put up prescriptions or personally sell the drugs, and that the defendant has never passed an examination before the State Pharmaceutical Board, neither has he received a certificate therefrom either as a registered manager or qualified assistant.” The court, thereupon, directed the jury to find a verdict of guilty.

The only questions for the consideration of this court, are whether this offense is one that is within the provisions of the act-of assembly of May 24, 1887, as amended by the act of June 16,1891, and whether the latter act is constitutional. The act of 1887, provided, sec. 1: “Be it enacted, that hereafter no person whomsoever shall open or carry on as manager in the State of Pennsylvania any retail drug or chemical store, nor engage in the business of compounding or dispensing medicines or prescriptions of physicians or selling at retail any drugs, chemicals, poisons or medicines without having obtained a certificate of competency and qualification so to do from the State Pharmaceutical Examining Board and having been duly registered as herein provided, -etc.”

Section 6, of the same act, provides: “ That no person shall hereafter engage as manager in the business of an apothecary or pharmacist or of retailing drugs, chemicals or poisons or compounding or dispensing the prescriptions of physicians either directly or indirectly without having obtained such a certificate as aforesaid, but nothing contained in the act shall interfere in any manner with the business of any practitioner of medicine, etc. . . . Any person who shall violate or fail to comply with the provisions of this section shall be guilty of a misdemeanor, and on conviction before any court shall be punished by a fine not exceeding one hundred dollars or by imprisonment in the county jail for one year, or either or both at the discretion of the court.”

This act was construed in Commonwealth v. Johnson, 144 Pa. 377. In that case it appeared that Johnson was unregistered, 'that he purchased and conducted the business with his own money and in his own name, that his money paid the rent and all debts contracted in tbe business, that be employed one Hines, who was a registered pharmacist, at a salary, to do all and everything to be done in and about that business. Hines ordered and purchased in the name of Johnson all drugs, chemicals, etc., used in carrying on the business, and the same were shipped and delivered in Johnson’s name. All the moneys were deposited to the credit of Johnson, and all checks signed by Johnson.

The court below, in a very long, well considered and learned opinion, decided that Johnson did not come within the provisions of the act of 1887, and entered judgment on the verdict for the defendant. The Supreme Court, in a single line affirmed the decision of the court below.

It was there held that ownership did not necessarily imply management, that a manager was one who conducted the business, and was not a mere owner. The court below, in its opinion, in the case now before us, follows this decision, and admits that the defendant cannot be convicted under the act of 1887, but that the special verdict, as found by the jury, brings this defendant fairly within the prohibition and penalty of the act of 1891, which is as follows:

“ Hereafter no person whomsoever shall open or carry on as manager in the state of Pennsylvania any retail drug or chemical store nor engage in the business of compounding medicines or prescriptions of physicians or of selling at retail any drugs, chemicals, poisons or medicines without having obtained a certificate of competency and qualification so to do from the State Pharmaceutical Examining Board and having been duly registered as herein provided, but it shall be lawful for the widow or legal representatives of a deceased person who was a manager and registered pharmacist to carry on or continue the business of such deceased pharmacist, provided that the actual retailing dispensing, or compounding of medicines or poisons be done only by an assistant qualified and registered as herein provided. Any person who shall violate or fail to comply with the provisions of this section shall be guilty of a misdemeanor and on conviction before any court shall be punished by a fine not exceeding one hundred dollars.”

It will be noticed that the descriptive portions of this act are precisely similar to those contained in the first section of the act of 1887. There is, however, this distinction — that, while the first section of -the act of 1887 has attached to it no penalty for its violation (the penalty being attached to the sixth section of that act), the act of 1891 supplies the penalty which was omitted to the first section of the act of 1887, and that seems to have been its only purpose.

The first section of the act of 1887 has received a construction by Judge Rockefeller, in the case of Commonwealth v. Johnson, supra, which opinion was approved by the Supreme Court, which seems to us entirely sound and logical, and this construction is followed in this ease by the learned judge of the court below. He says, “ It is possible that the provisions of the first section of the act are broad enough to make it unlawful for any unregistered person, whether as owner or proprietor, merely to open any drug or chemical store, or to engage in the business of compounding or dispensing medicines, even though he employ a manager or registered clerk to carry on the business ; ” and again: “As before stated, for the purposes of this case it may be conceded that the first section of the Act was intended to prevent all persons whether as owners, proprietors or managers, from opening and carrying on any retail drug and chemical store.”

This brings us to the consideration of whether the defendant comes within the prohibition of the act of June 16,1891. The words of that act, “ nor engage in the business ... of selling at retail any drugs, chemicals, poisons or medicines without having obtained a certificate,” etc., clearly apply to that which the jury found the defendant guilty of doing under their special finding of facts, — that while it is true that the defendant did not personally sell the drugs or compound the prescriptions or dispense the medicines, yet he was engaged in that business although he may have employed some one else to make the sales for him as a manager. It was his business, not the manager’s business. The manager was simply acting as Ms agent or employee, and the Court below was, therefore, fully justified in finding that he had violated the provisions of the act of 1891 and that he was, therefore, guilty of the misdemeanor with which he stood charged under this indictment if the act of 1891 is not unconstitutional.

This brings us to the consideration of the other proposition made by the defendant’s counsel — namely: Is the act of 1891 constitutional ?

It is not contended, by the learned counsel for the appellant that the prohibitions of the act are unconstitutional; but it is admitted that the regulation of the selling of drugs, the dispensing of medicines and the compounding of prescriptions fairly fall within the police power of the commonwealth, and that, for the protection of the lives, health and safety of the citizens of the commonwealth, they have a right to impose such restrictions upon the sale as will best protect the public.

But they contend that the act is unconstitutional because of the exception permitting certain unregistered persons to carry on the drug business by a registered manager. It permits the carrying on of the drug business by a certain class of people who are unregistered, namely, “ the widow and legal representatives of a deceased person who was a manager and registered pharmacist,” and it is, therefore, claimed this is special, or class legislation, such as is forbidden by the Constitution of this State.

It must be noticed that this exception is not to settle, by the “widow or legal representatives of the deceased person who was a manager and registered pharmacist,” the business referred to; but it is authority for them to carry on such business after the death of the prior owner for an indefinite time. The fact that the purposes of this act are within the police power of the State does not affect this consideration of the constitutionality of the act. In this view, it is not an attempt to regulate the manner of the carrying on a dangerous business which may involve the safety of society, but it is a provision that a certain class of people may carry it on, who are uneducated and incompetent as pharmacists, to the exclusion of all other classes. A different question would be presented were the provisions of this exception applied to the widow or legal representatives of a deceased manager or owner of a drug store to wind up the business for the purpose of settling the estate, but that is not the provision. The provision is to carry on indefinitely the business which has been owned by such deceased manager or owner. The decedent’s estate may be settled and distributed between the widow and the heirs or legatees, and yet the widow or legal representatives would have the right, under this exception, to carry on the business under the direction of a competent manager. Could it be successfully contended that the act of 1891 would be constitutional, if this provision were a little broader in its scope, and should except from its provisions all persons who were widoios in the commonwealth of Pennsylvania ? Is it any less unconstitutional because it exempts from its provisions the widows of a certain class of people ? Or would it not be clearly unconstitutional if the act provided that all legal representatives of deceased persons should have the right to carry on such business, and should be exempted from the provisions of the act of 1891 ? Is it not just as unconstitutional to say that such business may be carried on indefinitely by the legal representatives of a certain class of individuals in the commonwealth of Pennsylvania, even though such deceased persons may have been, during their lifetime, competent pharmacists? We fail to see the distinction, and regard the act as being as unconstitutional in the one instance as it would be in the other.

We think that this exception clearly brings the act of 1891 within the ruling of the Supreme Court in the case of Sayre Borough v. Phillips, 148 Pa. 482. The borough of Sayre passed an ordinance prohibiting all persons from peddling within the limits of that corporation except citizens of the borough. In the opinion rendered by Justice Williams, he says : “The business of peddling has been treated as a proper subject for police regulation, and controlled in this state since 1784. The legislature has forbidden it to all unlicensed persons, and has prescribed the conditions under which licenses may be obtained from the court. . . . By the organization of a city or borough within its border, the state imparts to its creature, the municipality, the powers necessary to the performance of its functions and to the protection of its citizens in their persons and property. The police power is one of these. Ordinances of cities and boroughs, passed in the legitimate exercise of this power, are, therefore, valid. . . . But it is very clear that a police regulation must be directed against the business or practice that is harmful, not against one or some of • the persons who may be engaged in it. ... If a statute or municipal ordinance is in reality only directed against certain persons who are engaged in a given business, or against certain commodities, in such manner'as to discriminate between the persons who are engaged in the same trade or pursuit, in aid of some, at the expense of others, such statute or ordinance is not a police but a trade regulation, and it has no right to shelter itself behind the police power of the state or of a municipality. ... So long, however, as it bears upon all persons impartially, it may fairly claim to be a police regulation, intended to destroy a business that was regarded as injurious, but at the end of the prohibiting section of the ordinance a proviso may be found which exempts all residents of the borough of Sayre from its operation. The proviso converts the police regulation into a trade regulation,” and the ordinance is declared unconstitutional.

In Shamokin Borough v. Flannigan, 156 Pa. 43, a borough ordinance which prohibits peddling without a license, excepting those persons holding mercantile, licenses “ within the borough, who complied with the market ordinance, nor to persons selling or offering to sell the products of their own farm or garden, and hucksters who first attend the borough market and comply with the provisions of the market ordinance,” was held to be unconstitutional.

Class legislation, in certain cases, has been held to be valid by our courts, but it is only where certain businesses are restricted to a certain class of people for the purpose of preventing harm to the community which might result if others engaged in it, or to the exclusion of certain people where there may be injury to public safety or morals because of the engaging of certain other people in it. That is to say, the police power of the state can be properly exercised, not only in the restriction or regulation of a business, but also of the people who may engage in it, where danger either to public morals or public peace may result from such conduct of the business by them. Of this character is the legislation which excludes females from keeping bars or waiting in beer saloons or concert-halls, and the state regulation which forbids any but cripples to engage in the business of hawking and peddling.

The court, in Commonwealth v. Brinton, 132 Pa. 70, distinctly rest their decision on the ground that the act showed a purpose to exclude able bodied rogues and vagrants, who might commit felonies under the cover of peddling. So too, where the legislation refers, not to the exclusion of a class of people, or the restriction of the business to a certain other class in the exercise of the state’s police power, but restrains it to a class of business, in tbe conduct of which evil may result because of the character of the business and the way in which it is carried on. On this ground rests the decision of this court in Commonwealth v. Muir, 1 Pa. Superior. Ct. 578.

For these reasons the judgment of the court below is reversed.

Concurring opinion by

Smith, J.,

January 18, 1897:

In all essential facts, there is substantial identity between the case of Com. v. Johnson, 144 Pa. 377, and the present case. In the former, however, the defendant was indicted for “ engagr ing as manager ” in the business of a pharmacist, under section 6 of the act of May 24, 1887, P. L. 189. In the present case, the defendant is indicted for “carrying on as manager” the same business, under section 1 of the same act, as amended by the act of June 16, 1891, P. L. 313.

In Com. v. Johnson, the meaning of the word “manager,” as used in the act, was judicially' settled. It is applied and restricted to the person who immediately conducts, directs or manages the- business, — who personally dispenses medicines and compounds prescriptions.

The statute regulates the practice of pharmacy by requiring that drugs be sold and prescriptions compounded by a person qualified as therein provided. Section 1 forbids any unqualified person to “open or carry on, as manager,” the business described; section 6 forbids such person to “ engage as manager ” in the business. The first provision apparently relates to an owner who may act as manager, while the second as evidently relates to an employee engaged as manager; and these are obviously the only methods in which the business can be conducted. The act further distinguishes between ownership and management, in providing (section 8) that “ no person shall be allowed by the proprietor or manager,” etc.

Whether the legislature may, under the constitution, forbid ownership of the property mentioned in this statute may be seriously questioned. The statute, however, does not forbid ownership. Nor does it forbid any person to open or carry on the business described, provided he does not act as manager. It merely forbids any unqualified person to open or carry on as manager the business in question, or to engage as manager therein. The ground of the distinction is obvious. The pub-lie are in nowise interested in the ownership of a drug store, or in its financial management. They are interested only in having that branch of its management affecting life and health — the sale of drugs, the compounding of prescriptions, etc. — conducted by a properly qualified person. It is only this department of the business that the act assumes to regulate. The part taken by the defendant in the business, as found by the special verdict, was not within its prohibition.

If the amendment by the act of 1891 could be construed as forbidding ownership, and the carrying on of the business through a properly qualified manager, its constitutionality might well be questioned. A statute by which a business is forbidden to one class of persons while permitted to another class equally within the reason of the prohibition, so far as relates to that protection of the public at which the statute aims, cannot be regarded otherwise than as class legislation, and as such unconstitutional. Hence the act of 1891 must be held ineffective as a prohibition of the acts in which the defendant engaged; and as section 1 of the act of 1887 provides no penalty for its violation, any sentence would be erroneous.

In this view of the two statutes the defendant has committed no punishable offense, and the judgment should be reversed.


author: Beaver, J.,

text:
    Estate of John Taylor. Appeal of Margaret Richardson.

      Costs — Liability for — Taxation of — Discretion of court.

    It has been decided by the Supr-eme Court .that by their judgment or decree the liability of a party to pay costs may be determined, but the several items thereof remain to be taxed by the court below. The appellate court will not review its action therein except in a flagrant ease.

      Costs — Stenographer's charges — Act of May 24, 1887.
    A stenographer’s compensation in a case before an auditor is not the subject of contract. It is such as shall be directed by the court and fixed by the auditor within the limitations prescribed by the act. When such compensation has been thus fixed by the auditor and approved by the court below and the exercise of its power has been discreetly used, the appellate court has no disposition to interfere even if it had the power.

      Argued Dec. 8, 1890.
    Appeal No. 52, Nov. T., 1896, by Margaret Richardson from decree of O. C.‘, Montgomery Co., Oct. T., 1895, No. 107, dismissing her exceptions and confirming the report of the auditor, appointed to distribute the balance in the hands of the administrators of John Taylor, deceased.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.,
    Affirmed.
    Exceptions to auditor’s report.
    Jacob A. Strassburger was appointed auditor to distribute the balance in the hands of J. F. Siegel et al., administrators e. t. a., of John Taylor, deceased; the auditor engaged Miss Margaret Richardson to report in shorthand the proceedings of the audit and to furnish four type-written transcripts thereof. The bill which was as follows: To reporting testimony at audit, 175 pp. (4 copies) at 50 cents per p. $87.50, copying 8 pp. at 14 cents per p., $1.12; total $88.62, was objected to by the creditors and the auditor found her charges excessive, awarded her $50.00 as full compensation, and reduced her compensation to that amount. Exceptions were filed to this report of the auditor, which were dismissed by the court in an opinion by Weand, J.
    The claim of the stenographer in this case is governed by the sixth section of the act of May 24, 1887, P. L. 199.
    This act allows an auditor to employ a stenographer “at the request of the parties,” etc., and we will assume that such request was made, as the only contention is as to the amount of compensation which should properly be allowed.
    The act further provides that “ the compensation of the stenographer .... shall be such as the court may direct, together with such reasonable additional compensation as shall be fixed by said examiner and for extra services,” etc. This clearly implies that the court shall, by a general order, fix the compensation; otherwise, in every case after the services were ended, the matter would have to be referred to the court and then .recommitted to the examiner or auditor before a report or distribution could be made. This court has made no such order, and hence the claimant has no standing except for what the auditor might allow her. We can only treat the allowance made by the auditor as “ for extra services or time not otherwise provided for,” and of this amount he is made the arbiter, subject, of course, to correction, if based upon erroneous 'findings as to time, services, etc.
    The auditor appears to have given the subject his careful attention and allowed the claimant what he supposed the court would have allowed her in full, and after hearing the depositions in support of the claim after exceptions filed, he renews his opinion that his allowance was correct; He must necessarily have had better opportunities of coming to a correct conclusion than we can, and we ought, therefore, to adopt his findings.
    And now, February 19, 1896, the exceptions are dismissed and the report of the auditor is confirmed.
    And now, March 11, 1896, the claimant, Margaret Richardson, excepts to the decree of the court overruling her exceptions to the auditor’s report. And bill sealed.

      Hrrors assigned were, (1-5) dismissing the exceptions to the auditor’s report and in confirming the same.

      Irvin P. Knipe, of Wanger & Knipe, for appellant.
    Appellant was entitled to a hearing before judgment: Franklin’s Appeal, 163 Pa. 1.

      J. P. Hale Jenkins, with him N. H. Larzelere and M. M. Gibson for appellee.
    The act of 1887, P. L. 199 expressly governs this case. There is no provision for an appeal from the decision of the court of common pleas to the Supreme Court, and as the whole system is statutory no appellate court can assume jurisdiction of such an appeal without express statutory authority : Gangewere’s Appeal, 61 Pa. 342; Thomas v. Upper Merion Township, 148 Pa. 116.
    January 18, 1897:
   Opinion bx

Beaver, J.,

In Miskey’s Appeal, 18 W. N. C. 100, our Supreme Court says: “ By our judgment or decree the liability of a party to pay costs may be determined, but the several items thereof remain to be taxed by the court below. We will not review its action therein, except in a flagrant case.” The application of this declaration might be decisive in the present case, but we do not wish to rest our decision upon this ground alone.

The authority for the employment of stenographers before an examiner, master, referee, commissioner or auditor is contained in thé act of the 24th of May, 1887, P. L. 199, under the provisions of which the mode of fixing their compensation and the authority for determining it are expressly pointed out. The sixth section of said act provides: “ The compensation of the stenographer appointed under this section shall be such as the court may direct, together with such reasonable additional compensation as shall be fixed by said examiner, master, referee, commissioner or auditor for extra services or time not otherwise provided for, and together also with all traveling and hotel expenses that may be reasonably incurred by said stenographer in pursuance of such employment in such suit, action or proceeding, all which compensation and expenses shall be taxed and recoverable as part of the costs in the suit, action or proceeding.” It will be observed that the compensation is to be fixed by the court and auditor and that, when fixed, it shall be a part of the costs. In this case the compensation has been fixed by the auditor and approved by the court below. With the exercise of this power discreetly used in the present case we have no disposition to interfere, even if we had the power. A stenographer’s compensation in a case like the present is not the subject of contract. It is such as shall be directed by the court and fixed by the auditor within the limitations prescribed by the act. We are satisfied that this has been properly done, in this case, and the decree of the court is, therefore, affirmed and the appeal dismissed at the costs of the appellant.


text:
    First National Bank of Tyrone, Pennsylvania, Appellant, v. J. W. Cooke.

      Practice, C. P. — Service of process — Acts of 1836 and 1887.
    The act of May 25, 1887, P. L. 271, does not in any way repeal or modify the provisions of the act of June 18, 1836, P. L. 568, relating to the beginning of personal actions and the mode therein provided for the service of summons.

      Practice, C. P. — Service of process and statement.

    Where a summons has issued and been returned nihil liabet such service

      is a nullity and the issuing of an alias returnable upon a different return day and a service thereof cannot relate back to the issuing of the original summons and the service of the statement, so as to give the latter any value or validity under the provisions of the act of 1887. The service of an alias summons does not bring the defendant within the jurisdiction of the court as of the date of the issuing of the original summons.
    Argued Dec. 16, 1896.
    Appeal, No. 163, Nov. T., 1896, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1896, No. 91, striking off judgment and setting aside sci. fa.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    The form of the action was assumpsit.
    From the record it appears that summons assumpsit, exit Sept. 12, 1896, returnable third Monday.in Sept., 1896, this writ was returned nihil habet, Sept. 14, 1896, statement filed. Oct. 2, 1896, alias summons, returnable first Monday in October, 1896. The return to the alias summons was as follows: “ Served J. W. Cooke, residing at No. 2015 N. 22nd Street, by leaving October 3rd, 1896, a true and attested copy of the within writ at his dwelling house with an adult member of his family. So answers Henry Johnson, Deputy Sheriff and Samuel M. Clement, Sheriff.” Oct. 6, affidavit of service of copy of statement on defendant, on Sept. 14, 1896 filed. Oct. 6, 1896, judgment for want of an affidavit of defense, eo die, damages assessed at $358.12. Oct. 6, 1896, fi. fa. exit, returnable first Monday of Oct. 1896. Oct. 9,1896, rule to strike off judgment and set aside fi. fa. Proceedings to stay. Oct. 24,1896, rule absolute. Plaintiff appealed.

      Errors assigned were, (1-2) making absolute the rule to show cause why judgment entered in said case should not be stricken off and fi. fa. set aside.

      Frederick S. Drake, with him John Sparhawk, Jr., for appellant.
    The alias summons was a continuance of the original process and a judgment for want of an affidavit of defense was entered on October 6, 1896, a day after the return day, when the defendant was in court. Such practice is sustained by the authorities: Marlin v. Waters, 127 Pa. 179; Gorman v. Assn., 154 Pa. 133; Newbold v. Pennock, 154 Pa. 596 ; American Central Ins. Co. v. Haws, 20 W. N. C. 370, citing Lynn v. McMillen, 3 P. & W. 170 ; McClurg v. Fryer, 15 Pa. 293.

      J. Claude Bedford, for appellee.
    If the court decides that the judgment has been properly entered in the present case, it will then be possible for A to issue a summons in assumpsit, return nihil habet, statement filed, a copy served upon B, defendant, a year afterward, by one not an officer of the court; B examines the record and learns that the summons was returned nihil and that an alias has not issued; he waits one year or two years for an alias, and it is served upon him the afternoon of return day, and judgment is entered the following morning.
    January 18, 1897:
   Opinion by

Beaver, J.,

The act of June 13, 1836, P. L. 568, section 1, provides that “personal actions, except in cases where other process shall be especially provided, shall be commenced by a writ of summons,” the form of which is therein set forth. The second section of this act provides the manner in which the service of such a summons shall be made. A summons was issued in accordance with the provisions of this act in the present case September 12, 1896, returnable the third Monday of September, 1896. There was no service and the summons was returned “nihil habet.” An alias summons was issued October 2, 1896, returnable first Monday of October, 1896, which was served. The appellant alleges that on the 14th day of September, 1896, one, Samuel J. Moffett, “ served upon the defendant a copy of plaintiff’s statement filed in above case by handing same to him personally.” Where this statement was handed the defendant does not appear. The appellant alleges that, because the statement was handed the plaintiff more than fifteen days before the return day of the alias summons, he is entitled to judgment, notwithstanding the fact that the defendant was not actually summoned for more than fifteen days after the serving of the statement.

The .act of the 25th of May, 1887, P. L. 271, “ providing for the abolition of the distinctions heretofore existing between actions ex contractu and actions ex delicto, so far as relates to procedure, providing for two forms of actions and regulating the pleadings thereunder,” does not in any way repeal or modify the provisions of the act of the 13th of June, 1836, supra, relating to the beginning of personal actions and the mode in which the summons therein is to be served.

The first and essential step in the commencement of a personal action is to bring both parties within and under the jurisdiction of the court. The plaintiff does this by bringing his suit. The defendant is brought within the jurisdiction by a service of the summons or by an authorized appearance by attorney. The defendant was not within the jurisdiction of the court for the purposes of this suit at the time at which the statement was served upon him, even admitting that the statement was so served within the jurisdictional limits of the court, although this does not affirmatively appear in the affidavit of service. Such service was, therefore, a nullity, and the issuing of an alias summons returnable upon a different return day and a service thereof could not relate back to the issuing of the original summons and the service of the statement, so as to give the latter any value or validity, under the provisions of the act of May 25, 1887, supra.

Whilst it has been held, as argued by the appellant, that alias and pluries writs are a continuance of the original process and not the inception of a fresh suit, so as “ to prevent the running of the statute of limitations from the tune of the issuing of the original summons,” as in McClurg v. Fryer et al., 15 Pa. 293, or as a compliance with the requirements of a clause of limitations as to the time within which an action was to be commenced under a policy of insurance, as in American Central Insurance Co. v. Haws, 20 W. N. C. 371, it has never been held that the service of an alias summons brings the defendant within the jurisdiction of the court as of the date of the issuing of the original summons. To so hold would be destructive alike of the rights of a defendant and of established practice. In Newbold v. Pennock, 154 Pa. 596, a summons had been regularly issued and served upon the defendant who was, therefore, under the jurisdiction of the court. The decision of the Supreme Court, therefore, in that and similar cases does not in any way apply to the facts of the case under consideration. The Procedure Act of 1887 was not intended nor does it in effect in any way modify the duty of the plaintiff to bring or the right of the defendant to be brought under the jurisdiction of the court in which a personal action like the present is pending in the mode pointed out by the statute, before the defendant can be called upon to answer the plaintiff’s statement by an affidavit of defense. The judgment in this case for want of such affidavit was, therefore, improvidently and prematurely taken, and the decree of the court below in making absolute the rule to strike off the judgment entered for want of an affidavit of defense October 6, 1896, and setting aside the fi. fa. issued thereon is affirmed, and the appeal dismissed at the cost of the appellant.


text:
    Samuel Goodman, Wm. E. Goodman and Joseph E. Goodman, trading as Harrington & Goodman, Appellants, v. The Merchants’ Despatch Transportation Company.

      Evidence — Shipping receipt — Bill of lading.

    When a shipping receipt provides that: “ The acceptance of this receipt for goods made subject to the provisions of the bill oE lading of this company makes this an agreement between the M. D. T. Co. and carriers engaged in transporting said goods and all parties interested in the property,” such a provision in the receipt entitled parties to have the bill of lading in evidence as part oE such agreement.

      Common carriers — Evidence—Bill of lading — Question for jury.

    A suit was brought by plaintiffs against a common carrier for alleged misdelivery of goods consigned to R. of Tyler, Texas, by delivering same lo M. at Dallas, Texas. Held, That it was error to direct a verdict for defendant, and that under the evidence it was for the jury to decide the facts as to the purchase by and delivery to M. What the contract was, whether the defendant was liable as common carrier or merely as forwarding merchant, and whether or not plaintiffs are estopped, by reason of delay in making their claim or by the acceptance of part of price of goods forwarded from the person who received them, were questions which will be properly raised under the contract, which, in view of the rejection of the bill of lading, was not fully in evidence and is not now a part of the record.

      Evidence — Beading parts of depositions — Rights of other party to balance.

    Where portions of depositions are read in evidence by plaintiff the remainder can be read by defendant as cross-examination. The time for the introduction of such parts of the depositions as were not used by the plaintiffs was within the discretion of the court.

      Argued Dec. 18, 1896.
    Appeal, No. 172, Nov. T., 1896, by plaintiffs, from judgment of C. P. No. 4, Phila. Co., March T., 1895, No. 1052, on verdictfor defendant.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Assumpsit for misdelivery of goods by common carrier.
    There was evidence tending to show, that plaintiffs sold on February 18, 1890, certain goods of the value of $430.69 to W. B. Robinson, of Tyler, Texas, and gave them to the Merchants’ Despatch Transportation Co. for transportation, consigned to W. B. Robinson, of Tyler, Texas. The transportation company gave plaintiffs a shipping receipt for these goods consigned as stated.
    These goods were safely, promptly, and properly carried from Philadelphia to Tyler, Tex., and shortly after their arrival they were, upon the order of one A. J. Michell (who in 1889, and up to January 1, 1890, had been conducting business in Tyler, Tex., either under the name of, or as agent for, W. B. Robinson, of Palestine, Tex.), carried by the Pacific Express Company to Dallas, Tex., and at the latter place in April, 1890, delivered to Michell & Co., in which name said Michell was then doing business in Dallas.
    Although Harrington & Goodman knew, at least some time prior to September 18, 1890, that these goods had been delivered to Michell & Co., it does not appear that any notice was ever given to the Merchants’ Despatch Transportation Company or to any of the carrying lines or to the. delivering company that the goods had not been properly delivered, nor does it appear that any claim on account of the alleged loss to the shippers was presented to them or to any of them, until after September 9, 1891. During the period intervening between the arrival of these goods at destination and September 9,1891, Harrington & Goodman corresponded with Michell & Co. in respect of the goods, repeatedly demanded payment for them from Michell & Co., drew upon Michell & Co. for the balance due thereon, and received from Michell & Co. a payment of $50.00 on account thereof, and credited the same on the bill for the goods in question.
    On September 9,1891, Harrington & Goodman’s cashier called at the office of the Merchants’ Despatch Transportation Company, on South Fourth street, Philadelphia, with the original shipping receipt, dated February 18,1890, and made to the clerk there at the time some explanation, which on the trial of this case, upon appellants’ objection, the cashier was not permitted to state, whereupon the clerk signed and retained a bill of lading and handed a duplicate thereof to said cashier.
    By agreement of counsel a commission and testimony taken thereunder and on file as of June term, 1892, No. 1031, was permitted to be used by either party to above suit as if the same had been issued and returned in this suit.
    The court directed a verdict for the defendant as follows:
    The Court: “ These goods were sold to Michell in the name under which he was then buying- g-oods, and under which he had been buying goods from the plaintiffs; were sent to him, were delivered to him and were partly paid for by him. Under these circumstances there has been no wrong delivery, and therefore a verdict is directed for the defendant.”

      Errors assigned were, (1) in not admitting the bill of lading, produced by defendant on plaintiffs’ call, and offered by plaintiffs ; (2) the learned judge erred, after he had admitted in evidence the first, second, third and tenth direct interrogatories and answers thereto, and second cross interrogatory and answer thereto in the deposition of A. J. Michell, taken by defendant under a commission, which interrogatories and answers were offered by plaintiff, in permitting the defendant to offer and read in evidence in plaintiff’s case, and as cross-examination the fourth, fifth, sixth, seventh, eighth, ninth, eleventh and twelfth interrogatories and answers thereto in the same deposition; (3-11) assigned error specifically in the admission of each interrogatory covered by second assignment of error, reciting same; (12-14) to the charge of the court directing a verdict for the defendant.

      Wm. H. Burnett, with him Sheldon Potter and John Sparhawk, Jr., for appellants.
    If a deposition be taken by one party, it is competent for the other to read such parts of it as tend to prove his case, leaving to the other party the right to read the other parts if they be legal evidence for him: Calhoun v. Hays, 8 W. & S. 127; Thomas v. Miller, 151 Pa. 482; 5 Am. & Eng. Ency of Law, p. 606 (6), and notes.
    The shipping receipt is a contract to carry from Philadelphia to Tyler, Texas, and there deliver to W. B. Robinson: Porter on Bills of Lading, p. 558; Read v. Spaulding, 5 Bosworth (N. Y.), 395: Buckland v. Adams Ex. Co., 97 Mass. 124; Ins. Co. v. Chase, 1 E. D. Smith, 115; Christenson v. Express Co., 15 Minn. 270 ; Railway Co. v. Piper, 13 Kan. 376; Clyde v. Hubbard, 88 Pa. 358.
    That a wrong delivery is not a loss or damage has been decided in the following cases: Porter v. So. Ex. Co., 4 Richardson, (So. Car.) 135 ; Clyde v. Hubbard, 88 Pa. 358.
    The defendant was bound by its contract to deliver to W. B. Robinson, at Tyler, Texas.
    It is an insurer for proper delivery as well as sure carriage: Porter on Bills of Lading, p. 45, ch. 5, sec. 63; Pa. R. R. Co. v. Stern, 119 Pa. 24; Wernwag et al. v. Phila., W. & B. R. R., 117 Pa. 46.
    The fact that plaintiffs received from Michell payment in amount, or demanded payment from him after they had ascertained that he had received their goods, does not authorize the inference, as matter of law that they intended him to receive their goods: 2 Am. & Eng. Ency. of Law, p. 903; B. & O. R. R. Co. v. Pumphrey, 59 Md. 390 ; Forbes v. B. & L. R. R. Co., 133 Mass. 154; Jellett v. St. P., M. & M. R. R. Co., 30 Minn. 265.
    Where facts are in dispute or inferences are to be drawn from these facts, or the credibility of the witness is involved, the case is for a jury; Baker v. W. & C. Natural Gas Co., 157 Pa. 593; Ballman v. Heron, 160 Pa. 377; Patterson v. Dushane, 115 Pa. 334; Cover v. Manaway, 115 Pa. 338; Grambs v. Lynch, 20 W. N. C. 376; Ott v. Oyer, 106 Pa. 7; Refining and Storage Co. v. Bushnell, 88 Pa. 89; Bean v. Howe, 85 Pa. 260; Folsom v. Cook, 115 Pa. 539.

      Chas. Heebner, with him J. Claude Bedford, for appellee.
    Under whatever circumstances the bill of lading was obtained its execution and delivery by the clerk or agent at that late date was without the authority of his principal, and the defendant cannot be affected thereby in any way: Hough v. Doyle, 4 Rawle, 291; Hannay v. Stewart, 6 Watts, 487; Clark v. Baker, 2 Whart. 340.
    As to the authority of a railway agent to give receipts, see Hematite Mining Co. v. R. R. Co., 61 Am. & Eng. R. R. Cases, 174.
    If the shipping receipt constitutes the contract between plaintiffs and defendant in respect of the goods in question, a verdict should have been directed for the defendant: Grogan v. Express Co., 114 Pa. 523.
    The simple receipt of goods directed to a point beyond the carrier’s route does not create a special contract to carry them to destination, nor does giving the shipper a through rate: Porter on Bills of Lading, section 328 ; Jenneson v. C. & A. R. R. Co., 5 Clark (Pa.), 409; Mullarkey v. R. R. Co., 9 Phila. 114; Clyde v. Hubbard, 88 Pa. 358; R. R. Co. v. Forsyth, 61 Pa. 81.
    A verdict should have been directed for the defendant, because the only breach of defendant’s contract that was alleged, was its failure to deliver the goods in question to the proper party, and plaintiffs are estopped from asserting that said goods were not delivered to the proper party.
    The case, too, is analogous to the case where one with knowledge accepts the proceeds of an unauthorized sale of his property. He is uniformly estopped to dispute the validity of the sale: Goodman v. Winter, 64 Ala. 410; France v. Haynes, 67 Iowa, 139; Schenck v. Sautter, 73 Mo. 46; Moore v. Hill, 85 N. Car. 218; Field v. Doyon, 64 Wis. 560.
    The following are very similar cases, and were decided in favor of the carrier: Bush v. St. Louis, etc., Ry. Co., 3 Mo. App. 62; Wilson v. Adams Ex. Co., 27 Mo. App. 360; Edmunds v. Merchants’ Des. Trans. Co., 135 Mass. 283 ; McKean v. Mclvor, L. R. 6 Exch. 36; Hough v. London, etc., Ry. Co., L. R. 5 Exch. 51.
    January 18, 1897:
   Opinion by

Beaver, J.,

All the assignments of error in this case, except four, relate to a deposition taken under commission by the defendant, portions of which were used by the plaintiffs in making out their case. The deposition was used by the plaintiffs by permission of the court, under conditions which seem to be reasonable. Having nsed only such portions of the deposition as suited their convenience, it was only fair that the defendant should be allowed to use the remainder, so far as it was competent evidence, as cross-examination. The time for the introduction of such parts of the deposition as were not used by the plaintiffs was within the discretion of the court. That discretion, it seems to us, was properly exercised. No part of the deposition could have been excluded on the ground of incompetency, and all the assignments of error relating thereto are, therefore, overruled.

There are practically but two questions in the case. Was the bill of lading produced by defendant on the call of the plaintiffs and offered by them properly excluded? We think not. The bill of lading which was furnished voluntarily by the defendant to the plaintiffs on the surrender of the shipping receipt was in part at least the contract between the parties. The shipping receipt provides that “ The acceptance of this receipt for goods made subject to the provisions of the bill of lading of this Company makes this an agreement between the Merchants’ Despatch Transportation Company and carriers engaged in transporting said goods and all parties interested in the property.” The plaintiffs should not have been confined, therefore, to the shipping receipt, but were entitled to have the bill of lading, as to the provisions of which the receipt was made subject, in evidence as a part of the agreement between the plaintiffs and defendant. The lapse of time between the shipping of the goods and the exchange of the shipping receipt for the bill of lading was not material in the case. There was no claim for loss or damage in transportation but for a wrong delivery, after the goods reached their destination. It seems to us that the bill of lading should have been received at the time it was offered and, if the contents thereof or subsequent development of the case necessitated the limiting of its effect, it was entirely within the control of the court, and its effect could have been so limited.

The facts in the case should have been submitted to the jury. Michell’s own testimony shows that he was merely agent of W. B. Robinson at Tyler, Texas, to whom the goods were addressed at the time they were ordered, and was paid by the month for conducting the business. W. B. Robinson was not merely a name under which Michell purchased goods but was the name of a person actually in being, apparently reliable and responsible for his contracts, for whom Michell was agent. The goods previously shipped by the plaintiffs to W. B. Robinson were shipped and received during Michell’s agency which continued from May, 1889 to January, 1890. It was, therefore, error for the court to say: “ These goods were sold to Michell in the name under which he was then buying goods and under which he had been buying goods from the plaintiff.” Whether or not the goods which are the subject of the present controversy were sent to W. B. Robinson under the arrangement alleged to have been made by Michell with Thatcher, the traveling agent of the plaintiffs, was a question for the jury. If the plaintiffs sent the goods to W. B. Robinson, Tyler, Texas, in accordance with their previous mode of making such shipments, and without any knowledge that W. B. Robinson had sold his business to Michell, and not knowing that it had been removed from Tyler, Texas, to Dallas, Texas, and the carriers for the defendant, without the plaintiffs’ consent, re-shipped the goods from Tyler to Michell & Co. of Dallas, a verdict for the plaintiff could have been sustained, if the defendant were liable under its contract for a wrong delivery. What the contract was, whether or not under it the defendant is liable as common carrier or merely as forwarding merchant, and whether or not the plaintiffs are estopped, by reason of delay in making their claim or by the acceptance of a part of the price of the goods forwarded from the person who received them, are all questions which will be properly raised under the contract between the plaintiffs and defendant, which was not fully in evidence and is not now a part of the record. The first and twelfth assignments of error are sustained and the judgment is, therefore, reversed and a new venire awarded.


text:
    Estate of Charles E. Luce. Appeal of Mary E. Luce.

      Evidence — Competency of wife to prove marriage.

    The wife is a competent witness to prove marriage with her deceased husband: Drinkhouse Est., 151 Pa. 294.

      Orphans' court — Review—Findings of fact of auditing judge.

    The findings of fact by an adjudicating judge will not be reversed when. based upon evidence sufficient to sustain the verdict of a jury: Drink-house’s Est., 151 Pa, 294.
    This rule is specially applicable where the turning point rests on the credence to be given, to the testimony on one side or the other, such credence depending largely upon the manner of the witnesses, their candor, intelligence and their memory, on which points the finding of the adjudicating judge should control, for the reason that he had the best opportunity lor reaching a satisfactory conclusion in relation thereto.
    The rule upon this subject is founded on reason and should be adhered to unless there are erroneous deductions drawn from practically undisputed facts.

      Evidence of marriage.

    A marriage will be sustained when based not only on evidence of years of cohabitation arid reputation and wifely conduct, but also founded on a formal marriage ceremony performed by a clergyman in the presence of two witnesses; all of which facts were established if claimant’s evidence was credible, and its credibility w'as established by the finding of the ad-judioating judge.
    Argued Dee. 16, 1896.
    Appeal, No. 164, Nov. T., 1896, by-Mary E. Luce, from decree of O. C. Phila. Co., Jan., T., 1895, No. 142, dismissing appeal from the register in the matter of the petition for revocation of letters testamentary.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Appeal from register on refusal to revoke letters.
    Charles E. Luce died intestate. Letters were granted to his brother Francis E. Luce. Mary E. Luce, the petitioner, applied for revocation of these letters as improvident, and the granting of letters to herself as the widow of decedent. The register refused the petition and the case on appeal to the orphans’ court' was heard before Ashman, J.
    The evidence was conflicting, but tended to show a marriage ceremony, long years of cohabitation and affectionate intercourse as well as reputation as man and wife.
    The auditing judge sustained the appeal, revoked the letters, and directed the register to issue new letters to the petitioner. On exceptions filed the auditing judge was reversed by the Court in an opinion by Hanna, P. J., reported in 5 Dist. Rep. 137. Ashman, J., dissenting.

      Errors assigned were, (1-12) to the findings of the court in banc in reversing the auditing judge.

      Alfred N. Keim, with him Homer W. Edwards, for appellant.
    If there be evidence of a marriage in fact, evidence of reputation is not essential. This was decided so long ago as 1859 in the case of Hill v. Hill, 32 Pa. 514; also in Freno v. Freno, 1 W. N. C. 165 (1873). In the case of Senser v. Bower, 1 P. & W. 450, 452 (1830) Chief Justice Gibson, decided also that where the proof is equal, the presumption in favor of innocence must prevail.
    The finding of an adjudicating judge who has heard all the testimony is entitled to the highest consideration, his finding being analogous to the verdict of a jury, and should not be set aside unless the evidence entirely fails to support the conclusions reached; Strauss’ App., 168 Pa. 561 (1895); Agnew’s Est., 29 W. N. C. 520, (1892); Lazarus’s Est., 142 Pa. 104 (1891); Drinkhouse’s App., 151 Pa. 294 (1892) ; Lewis’ App., 127 Pa. 127 (1889).

      Robert J. Williams for appellee.
    The burden is undeniably on the petitioner to prove either an actual marriage with decedent, or such facts and circumstances from which the law will presume a contract of marriage to have been entered into: Sheehan’s Est., 139 Pa. 168.
    .The auditing judge’s conclusion was reached' by deduction from the evidence submitted, and being the result of reasoning 'is the subject of revision and correction: Cake’s Appeal, 110 Pa. 65.
    As to marriage by repute, see Bicking’s App., 2 Brewster, 202; Brinckle v. Brinckle, 34 L. I. 428.

      January 18, 1897:
   Opinion by

Beaver, J.,

The petitioner, who is the appellant here, is a competent witness: Drinkhouse’s Est., 151 Pa. 294. Was she a credible witness ? If she were and she and the decedent, whose widow she claims to be, were in law capable of making a marriage contract in 1876, she is undoubtedly the widow of Charles E. Luce. She testifies distinctly and circumstantially not only to a contract of marriage but to a marriage ceremony performed by a clergyman in the presence of two witnesses, of which she subsequently received a certificate in due form. This contract, if it were made, and this formal ceremony, if it took place, were unquestionably followed by eighteen years of continuous cohabitation. As to this there is practically no dispute. It was continued through all the stress and strain of hard work, poverty and sickness, in which the wife — if she were a wife— bore her part heroically, without complaint and with unfailing devotion to and affection for her companion. Her affection was undoubtedly reciprocated, and the attending physician in the last illness of the decedent speaks of it as unusual. The decedent was only deterred by the embrace of death from completing an effort to show his affection for his companion by a last embrace. All this we are aware is entirely consistent with other relations than those of husband and wife, and we speak of it only as being rather more consistent with the relation which, if the witness be credible, was established at the marriage ceremony which took place at the residence of the Bateheldors, in their presence, performed by the local preacher who happened to be present in pastoral visitation upon a sick member of the family. We might discuss the question of cohabitation and reputation, but to no profit. Was the witness credible? If she were, it is not necessary to discuss them. Who is to judge of her credibility and of the probability of the circumstantial narration of all the facts attending the relation of the parties which led to the marriage contract, and the ceremony which consummated it ? As we view the case, this was to be determined by the adjudicating judge who saw the witness upon the stand, who could not fail to be impressed by the manner as well as the matter of her testimony, and who under the circumstances of this case had better opportunities of weighing it and the other testimony in the case, under all the conditions of environment, which have so much to do in determining the weight of oral testimony, than have we or anyone else. What credence was to be given to the testimony of Frank E. Luce and Hannah Luce? There are undoubted inconsistencies and peculiarities in their testimony. What was their manner on the stand? How did they bear themselves rrnder cross-examination? How did their conduct affect their credibility? Are they to be believed or disbelieved ? Is their testimony to be regarded or excluded? All this must be passed upon by some tribunal. Ordinarily it would be for a jury, but here we have no jury. Who shall pass upon it ? Who can safely pass upon it but the adjudicating judge ? The rule upon this subject is founded in reason and should be adhered to, unless there are erroneous deductions drawn from practically undisputed facts. It may be conceded that, if the facts of this case had been submitted to a jury for its finding, the verdict might have been either way, and a verdict found either way could have been consistently sustained, the turning point in the case being the credence which should be given to the testimony on the one side and the other, and such credence we feel, after a careful reading of the entire testimony, depended largely upon the manner of the witnesses, their candor, their intelligence and their memory. The rule, therefore, of Sheehan’s Estate, 139 Pa. 168, of Drinkhouse’s Estate, 151 Pa. 294, of Strauss’s Estate, 168 Pa. 561, admitting and giving full weight to what is said in regard to it in Kittel’s Est., 156 Pa. 445, should be applied in this case, and the finding of the adjudicating judge should be sustained, largely for the reason that he had the best opportunity for reaching a satisfactory conclusion as to the facts involved.

We have not alluded to the finding of the register, for the reason that the hearing before him does not-seem to have embraced the important and essential facts which were elicited in the hearing before the adjudicating judge.

The decree of the court below is, therefore, reversed at the cost of the appellee, and the record is remitted to the orphans’ court of Philadélphia, with the direction that the letters of administration heretofore issued to Frank E. Luce, the respondent below, be revoked, and that the register be directed to issue new letters to the petitioner, who is the appellant here.