author: Reeder, J.,

text:
    City Treasurer, Richard G. Oellers, to the use of the Commonwealth of Pennsylvania, v. H. C. Horn, executor of the estate of J. Rush Ritter, deceased.

      Theatrical licenses — Review of previous legislation respecting same.

    It would seem that the purpose of the act of June 24, 1895, was to codify the previous legislation upon the subject.
    That legislation seems to show clearly that a tax although in form levied on a house, is not a tax on real estate, but on the trade, occupation or profession of players and showmen. This in the Pennsylvania tax system means a business with money returns, not a business done by one who works gratuitously. Amateur actors are not, therefore, taxed, and therefore the building in which they perform is not, since the tax on the building is simply a method of taxing the occupation.
    The act of March 23, 1865, exempting from taxation representations by amateurs in Philadelphia and Pittsburg, the net proceeds of which are to be devoted to the relief of widows, etc., cannot be construed to impose a tax by implication on amateurs who may devote the proceeds of their representation to other purposes. Taxes are not imposed by implication.

      Theatre — Amateur performances do not constitute. .

    A single performance in a building of a play or drama, does not constitute such building a place for theatrical exhibitions or entertainments within the contemplation of the act of June 24, 1895, nor, would a succession of performances given by persons not professional players, even though the proceeds or profits of the exhibition were to be devoted to purposes other than those religious or charitable in their character and not to the pecuniary advantage of the participants.

      Theatre — Intent of act of June 2-1, 1895, P. L. 219.
    It was clearly the intent and purpose of the legislature in enacting the act of 1895 to impose a license fee upon places where plays were given by professional players, who played for compensation where the exhibition was given for personal profit, and it was not the intention of the legislature to impose this tax of $500 upon a building where theatrical performances were given bj'amateurs who were mere volunteers, for the purpose either of amusing themselves or others, even though there was a profit from such exhibition which was devoted to other than charitable purposes and not to their own use.
    Argued Oct. 8, 1896.
    Appeal, No. 59, Nov. T., 1896, by plaintiff, from judgment of C. P. Phila. Co., No 2, Dec. T., 1895, No. 327, on case stated in favor of defendant.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Case stated to determine the status of a certain building as a theatre. Before Sulzberger, J.
    The facts sufficiently appear in the opinion of the court below, which was as follows:
    'On November, 27, 1895, the defendant was the owner of a three-story building on Fortieth street, below Locust. The first floor was divided into a reception hall, a cloak room, an office for the sale of tickets, and back of that a hall with a seating capacity, including balcony, of three hundred and twenty-eight persons. The hall was arranged with fixed folding chairs, similar to those used in theatres, a stage, a curtain, some scenery and dressing rooms for performers. On the second floor there is a dancing room and balcony. On the third floor there is a supper room and kitchen, with the necessary china and cooking utensils. The building is rented for social receptions, parties, dances, etc., for school exhibitions, festivals and like purposes. On the day named the building was rented to and used by “ The Garrick Club of the University of Pennsylvania ” for the presentation of a play called “ The Rivals,” by Sheridan, the performers appearing in costume.
    The Garrick Club is an organization composed of undergraduate students of the University, formed for the purpose of studying the English drama, the members contributing to the support of the organization by the payment of dues. The play was presented by the club under the patronage of a committee of ladies. Tickets were sold by members of the club to the public, and the proceeds were used to pay the rent of the building and the other expenses incurred in the production of the play; the profit, if any, being appropriated for the purpose of securing a suitable meeting place for the club. The persons taking part in the representation Avere all amateurs and members of the club; none of them received pay or compensation of any kind, nor did they derive any pecuniary benefit therefrom. No theatrical performances or operas are given in said building by any professional theatrical or operatic companies, nor by any professional players, nor by any persons Avho receive any pay or compensation for their services; but plays are occasionally given by amateur performers Avho do not MIoav the business of players and who receive no pay or compensation for their services, for the benefit of various charities, including those mentioned in the act of March 23, 1865, and also including other kinds of charities not mentioned in said act.
    The plaintiff contends that on the foregoing agreed statement of facts the defendant is liable, under the act of June 24, 1895, P. L. 249, to pay to the commoirwealth a license tax of |500 for the jmar beginning NoAmniber 27, 1895. The defendant denies all liability. ■
    The real question invoNed in the discussion is, whether the license tax in question is a tax on a profession, trade or occupation. If it be, the defendant is not liable, because persons associated for the study of the drama or for perfecting themselves in dress, manner or speech, are not, when so engaged without pay or profit, following a profession, trade or occupation which is taxable under tire law.
    To ascertain the nature of the tax imposed by the act of 1895, the previous legislation on the subject ought to be examined. Such an examination shows that there are two kinds of theatrical licenses in Pennsylvania; one, whose principal object is the supervision of the drama, and the other, Avhose sole purpose is to obtain revenue. The former is in the nature of a negative censorship, and is intended to forbid improper performances, without giving the right to modify or alter any proposed exhibition, and the latter is a mere tax on a profession, trade or occupation.

      The right of issuing a license of the former kind appears to have been first exercised by Governor Hamilton, in 1754; but the opposition aroused by the playhouse so licensed caused the assembly to pass a bill to suppress lotteries and plays, and the governor signed it; but, being repealed by the king and council, a new theater was opened on June 25, 1759.
    On March 10, 1779, the legislature passed an act concerning vice and immorality, in which was incorporated a provision against theatrical performances and shows of every kind. Notwithstanding the prohibition, a theater was opened on March 1, 1785, in which the true character of the performances was veiled under various thin disguises: Westcott’s Phila., vol. 2, p. 965, et seq. On September 25, 1786, the legislature passed “An Act for the prevention of vice and immorality and of unlawful gaming, and to restrain disorderly sports and dissipation: ” 2 Dallas’s Laws, 474. The sixteenth section of this act rigidly forbade plays or parts of plays under penalties which were quite severe. Notwithstanding this, the “Lectures,” “Tales,” and other disguises for plays continued to be presented until, in 1789, the conflict of adroitness ended in a legislative battle.
    A petition, signed by nineteen hundred citizens, was presented to the legislature, asking the repeal of the prohibition against theaters. A remonstrance, signed by thirty-three hundred and ten persons, was presented on the other side, which was met by counter petitions, signed by six thousand citizens, for the repeal, against four thousand, to which number the adversaries of the theater had by that time been augmented: Westcott, supra.
    As the total population of the city of Philadelphia, the Northern Liberties and the District of Southwark, in 1790, was only 42,516 (Watson’s Annals, vol. 2, p. 407), there may be a little doubt as to the genuineness of some of the signatures. At all events, the advocates of the theater prevailed, and on March 2, 1789, the legislature passed “An Act to repeal so much of an Act of General Assembly of this Commonwealth as prohibits dramatic entertainments within the City of Philadelphia and the neighborhood thereof:” 2 Dallas’s Laws, 647. By the second section of this act, the prohibitory law of 1786 was repealed, so far as it related to the city of Philadelphia or the territory within one mile thereof. By the third section, the president of the supreme executive council, the chief justice of the Supreme Court or the president of the court of common pleas for the county of Philadelphia, or any or either of them, were empowered, during three years from the passing of the act, to license such theatrical exhibitions only “ as shall, in the opinion of him who shall grant such license, be unexceptionable.” Presenting plays without a license was punished by fine and imprisonment. This general right of supervision still exists, though it is no longer exercisable by state officers.
    By the nineteenth clause of the second section of the act of April 3, 1851, P. L. 320, entitled “An act regulating boroughs,” the power was conferred on borough officers “to regulate and prohibit the exhibition of plays, shows, mountebanks, jugglers and all other exhibitions within the same.”
    By the act of May 5, 1876, P. L. 112, entitled “An act conferring additional powers upon the several boroughs and incorporated towns of this Commonwealth,” this right was extended to every borough or incorporated town theretofore or thereafter incorporated.
    By the first section of the act of May 22, 1879, P. L. 73, entitled “An act to regulate places of public amusement in cities of the first class,” the mayor’s previous license was made necessary before any representation can be given, and, before granting such license, it was made the mayor’s 'duty to satisfy himself that the exhibition, performance or entertainment “ shall not be immoral in its nature or tendencies, or otherwise unlawful or hurtful to the community.” By the third section of this act the mayor is authorized to vacate and annul such license, if he be satisfied that any of the performances have been immoral or unlawful. For such a license the proprietor of the building must pay for the use of the city twenty-five dollars, and the same amount at each yearly renewal.
    It would seem that all dramatic representations are subject to this supervision by the local authorities, and to the tax, by way of police regulation, connected therewith.
    The act of June 24, 1895, P. L., 249, under which the defendant is sought to be made liable, provides for a license of quite a different character.
    Its history is as follows : On April 15,1834, an act of assembly was approved entitled “ An act relating to county rates and levies and township rates and levies: ” P. L., 511. By section 4 of this act the assessors were required to take an account of the names and surnames of all the taxable inhabitants, and also an account of certain kinds of real and personal property, as well as of “all offices and posts of-profit, professions, trades and occupations, and all single freemen above the age of twenty-one years who shall not follow any occupation or callings.” By section 25 of the same act the supervisors were authorized to lay a rate of assessment not exceeding one cent in the dollar upon real and personal estate, offices, trades and occupations.
    By the 2d section of the act of June 11, 1840, P. L. 612, entitled “an act to create additional revenue to be applied towards the payment of interest and the extinguishment of the debts of the commonwealth,” it was provided that the commissioners of each county should annually, until the year 1846 inclusive, add to the county rates and levies for the use of the commonwealth, upon all real and personal property, persons, trades, occupations and professions, made taxable by the laws of this commonwealth, for the purpose of raising county rates and levies, one mill upon every dollar of the actual value thereof.
    By the act of May 4,1841, P. L. 307, entitled “ An act to provide revenue to meet the demands on the treasury, and for other purposes,” a tax of one per cent was imposed on every dollar of the value above 1200 of persons, trades, occupations and professions. By the 10th section of that act all sellers of goods and merchandise were first subjected to a license tax.
    By the 32d section of the act of April 29, 1844, P. L. 486, entitled “ An act to reduce the state debt, and to incorporate the Pennsylvania Canal & Railroad Company,” it was provided that “ salaries and emoluments of office, all offices, and posts of profit, professions, trades and occupations, except the occupation of farmers,” shall be valued and assessed and subject to taxation for the purposes mentioned in the act. By the 33d section of the same act the annual tax on trades, occupations and professions was fixed at one per cent upon every dollar of the value thereof above $200, all laws theretofore passed levying taxes for state purposes being repealed.
    It will thus be seen that, from 1840 to 1844, the commonwealth had been endeavoring to reach the trades, occupations and professions of men as sources of revenue. It is quite possible that theatrical performers were not easily reached by these acts. Perhaps the old prejudice against the legality of their business operated in their favor so far as to prevent the assessors from seriously considering their work as a trade, occupation or profession, viewing it rather in the light with which many persons at this day regard organ-grinders or bands of itinerant musicians. The business had, however become too important and respectable to escape taxation.
    The second section of the “ act to increase the revenue and diminish the legislative expenses of the commonwealth,” passed April 16, 1845, P. L. 532, provided “that no theatrical exhibition or exhibitions of circus performances, or menageries, shall hereafter be allowed in this commonwealth without a license from the state.” The rates were fixed as follows: f200 for Philadelphia county; $100 for Allegheny county, and $50.00 for any other county. It was further provided that the act should not exempt from payment of city or borough taxes. A license in any county authorized exhibitions in the others for one year, except that before a license obtained out of the counties of Philadelphia or Allegheny could be exercised in either of said counties, there was required the payment of such additional sum as would make the whole amount paid equal to the license tax in said counties respectively.
    On April 10, 1849, “ An act to create a sinking fund and to provide for the gradual and certain extinguishment of the debt of the commonwealth,” was approved: P. L. 570. By the second section thereof, all revenues derived from certain specified sources were devoted to the sinking fund. Among them were “ the taxes .... on theatrical, circus, and menagerie exhibitions.” By the twenty-fourth section of the said act it was provided, “ that hereafter the price of a theatre or circus license in the city or county of Philadelphia shall be $500, and' in the county of Allegheny $200, and for every theatre or circus in any other county in this Commonwealth, $80.00.”
    A supplement to this act was approved on May 15, 1850, P. L. 772. By the fifth section of this supplement the license tax was fixed, for Philadelphia and Allegheny, as before; but the license in other counties was reduced to $50.00 The privilege to exhibit in any other than in the licensing county which had been granted by the act of April 16, 1845, was taken away. The wording of the act was also changed in another manner, which has been deemed significant. Section 5 began thus: “ That hereafter the price of a theatre or circus license, or museum, or any other place for theatrical representations shall be . . . .”
    It has been said, in a case affirmed by the Supreme Court, that the use of the word “ place ” authorized the taxation of the building in Philadelphia and Allegheny counties : Hayes v. Coatesville Opera House Co., 8 C. C. 537; affirmed, 139 Pa. 636.
    By the twelfth section of the act of April 14,1851, P. L. 596, the proprietor or manager of a theatre, circus or menagerie, could obtain a license for the whole state for one year for $1,000.
    The doubt whether the tax was on the players or on the building was set at rest by the act under which the commonwealth claims in this case. It is entitled “ An act to provide for the licensing of buildings and other places in which theatrical, operatic or circus performances are held, and menageries or museums are exhibited, and fixing the prices to be paid for said licenses, and providing for the licensing of circuses and menageries exhibiting in tents and enclosures of like character,” and was approved June 24, 1895; P. L. 249. By section 1, the owner or lessee of a building used for theatrical purposes must pay an annual license tax of $500 in cities of the first class, $400 in cities of the second class, $75.00 in cities of the third class, and $30.00 in all boroughs and townships. For exhibitions given in a tent or enclosure, the license is to be paid by the proprietor at the same rates as provided for a theatre building, but he may, for $1,000, receive a license for the whole state for one year. By section 2, the licenses provided for in the first section are to be in lieu of all licenses theretofore required to be paid for the use of the commonwealth. By section 3, city and borough taxes are saved, and by section 4, all inconsistent acts are repealed.
    This act of June 24, 1895, is thus seen to be an amendment and codification of all the acts in force at the time of its passage. The main doubt which it was intended to remove was caused by the transformation of the theatrical business of the United States since 1860. Prior to that time, the rule was that resident players, called “ stock companies,” presented plays at the same house during the whole year. Under this system the tax on the player’s occupation or profession was laid with equal effect, whether it was directed against the person or the house.
    After the year 1860, however, player companies became itinerant, remaining one or more days in one place, in large cities about a week, then proceeding elsewhere. If each of these companies had been compelled to pay a license of $500 for the county of Philadelphia, or $1,000 for a general state license, a large part of the theatrical enjoyment of the people of this city would have been taxed out of existence.
    By virtue of the wording of the act of 1850, the taxing officers were enabled to interpret the law to mean that the house itself should pay $500 and no more. The act of June 24,1895, declares and confirms this common understanding and usage.
    The history of the legislation seems to show clearly that the . tax in question, though in form levied on a house, is not a tax on real estate, but on the trade, occupation or profession of players and showmen. The term “ trade, occupation or profession ” in the Pennsylvania tax system, means a business with certain money value or returns, a fraction or percentage of which the state collects as taxes. A man who gratuitously does work which might have a value in money, and for which another person might demand and receive payment, may, so far as the advantage to the community is concerned, be following a trade, profession or occupation, but he is not doing so within the meaning of the tax laws. The case stated concedes that none of the players who appear in the defendant’s building earn anything by their playing. Receiving no income from this source, they need pay no tax in this regard; and, as the tax on the building is evidently a way to tax the players, it follows that, if the players are exempt from the license tax, so is the building.
    In view of the conclusion reached, it is not necessary to dwell long on the effect of the act of assembly of March 28, 1865, entitled “ A supplement to an act to increase the revenues and. diminish the legislative expenses of this commonwealth, approved the sixteenth day of April, 1845, and supplements thereto, relating to theatres or theatrical exhibitions.” By the first and only section, it is enacted “ That the provisions of the several acts, requiring a license from the state, for theatres or theatrical exhibitions, shall not be held to extend to any musical or dramatic representations, bjr amateurs, in the city of Philadelphia, or the city of Pittsburg, the net proceeds of which are to be devoted to the relief and support of widows or orphans, the wounded or the sick.” If, prior to the passage of this act, amateurs playing without pay were not taxable, they could not thereafter be taxed without Severely straining the language of this act. Its primary purpose was to assure certain amateurs who may have feared or doubted their liability. From such a purpose, it is not fair to conclude that the legislature intended to impose a tax on a class of persons not named in the act, nor apparently contemplated by its provisions, to wit, such amateurs, receiving no pay, who devoted their proceeds to purposes other than those named in the act. Taxes are not imposed by implication : Schuylkill Co. v. Township, 42 Pa. 21, 25.
    In County of Erie v. City of Erie, 113 Pa. 360, Mr. Justice Green expressly held that, where the legislature had exempted certain property from taxation, other property not theretofore liable, upon which no taxation had been imposed, was not made taxable by reason of having been omitted from the exemption. And though Mr. Justice Mitchell, in Phila. v. Barber, 160 Pa. 123, 128, intimated' that Erie Co. v. Erie City, might require reconsideration, he expressly saved cases where the tax had never been imposed.
    In our opinion, no tax has been imposed on the defendant for the use of the commonwealth.
    Let judgment be entered for the defendant on the case stated.

      Error assigned was entering judgment for defendant on a case stated.

      Geo. Bradford Carr, for appellant.

      C. H. Eimerman, with him W A. Manderson, for appellee.
    February 16, 1897:
   Opinion by

Reeder, J.,

We can add but little to the able opinion of the learned judge of the court below, so far as it relates to the exhaustive history of the legislation upon this question, as well as the decisions relating thereto.

The case stated admits that bub a single theatricaL exhibition was ever given in the building owned by the defendant, and that one by the Garrick Club, a dramatic organization composed of the students of the University of Pennsylvania, at which there was a price charged for admission, the profits from it to be appropriated to a fund for securing a suitable meeting place for the club.

The appellant claims that this charge for admission and the purpose to which the profits were to be applied, brings the owner of the building where the exhibition was given within the provision of the act of June 24, 1895.

That act provides, that the owner of a building “ fitted up and used for theatrical exhibitions or entertainments or for the exhibition of museums,” shall pay an annual license fee in cities of the first class of five hundred dollars.

The only question for the consideration of the court upon the case stated is, whether the facts contained therein bring this case within the provisions of the act of 1895'. We agree with the learned judge of the court below that it does not.

A single performance in a building of a play or drama does not constitute such building a place for theatrical exhibitions or entertainments within the contemplation of the act of June 24, 1895, nor would a succession of performances given by persons not professional players, even though the proceeds or profits of the exhibition were to be devoted to purposes other than those, religious or charitable in their character, and not to the pecuniary advantage of the participants.

It was clearly the intent and purpose of the legislature in enacting the act of 1895, to impose a license fee upon places where plays were given by professional players, who played for compensation where the exhibition was given for personal profit, and it was not the intention of the legislature to impose this tax of five hundred dollars upon a building where theatrical performances were given by amateurs who were mere volunteers for the purpose either of amusing themselves or others, even though there was a profit from such exhibition which was devoted to other than charitable purposes, and not to their own use.

For this reason, and the reasons given by the court below in its able opinion, the judgment is affirmed.


source: Caselaw Access Project

author: Willard, J.,

license: Public Domain

text:
    Anna O’Grady v. The Prudential Insurance Company of America, Appellant.

      Insurance — Designated beneficiary — Right of action by assignee — Act of 1873.
    When the language of a policy of life insurance contemplates and invites a designation of a beneficiary, and the company furnished a blank form for such designation the designation of a daughter by the mother who was the insured, vests a right of action in the daughter. Such designation never having been revoked and having been accompanied by delivery of the policy to the beneficiary who paid the subsequently accruing dues with the knowledge of the company’s agents, is a virtual assignment.
    The beneficiary so designated being the assignee of the policy has a right of action in her own name as such assignee under the provisions of the act of March 14, 1873, P. L. 46.
    The fact that the policy was under seal and the assignment was not, is immaterial under the provisions of the act of 1873, which was intended to cure just such cases.
    Argued Jan. 12,1897.
    Appeal, No. 28, Jan. T., 1897, by-defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1891, No. 184, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder and Orlady, JJ.
    Affirmed.
    Assumpsit on policy of insurance. Before Gunster, J.
    Tbe case -was tried with another case on another policy between the same parties. The company defended on the ground that there was no privity of contract between the plaintiff and the company, and, because the alleged assignment was not an assignment but a paper testamentary’- in character, and gave the plaintiff no standing to sue in her own name.
    The court charged the jury in part as follows :
    That “Form 159,” the alleged assignment, was simply a request by the insured that the company pay the money to the plaintiff after her death and was revocable at any time by the insured during her lifetime; but the court also charged that if the jury believed the insured gave the policy itself to the plaintiff intending at the time that she should be the owner, then she had the right to bring this action in her own name.

      The defendant submitted the following points:
    1. That the evidence in the case discloses no privity of contract between Anna O’Grady and the Prudential Insurance Company of America, and the verdict must be for the defendant.
    2. Under all the evidence in the case the verdict must be for the defendant.
    Verdict for plaintiff for $143.53. Defendant appealed.

      Errors assigned were (1, 2) refusal of points; (3, 4) to charge of the court in that it left the jury to determine whether the insured had made an absolute transfer of the assignment to the plaintiff; (5-7) to the admission of evidence as to what took place at the time of the alleged parol transfer of the policies of insurance.

      A. A. Vosburg, with him W. S. Hulslander, for appellant.
    The question raised by this appeal is whether the plaintiff proved such an assignment of the policies as entitled her to bring suit to recover in her own name.
    The act of May 28, 1715, 1 Sm. L. 90, provides that assignments of all specialties must be in writing and witnessed bjr two persons.
    The act of 1873, P. L. 46, simply provides that the assignees of insurance policies may sue in their own names. It is contended that both of these acts are in force, and that they are not repugnant with each other.
    The company had the same option of payment under the form 159 as under the policy itself: Thomas v. Ins. Co., 148 Pa. 594; Brennan v. Ins. Co., 170 Pa. 488.
    A policy of insurance under writing cannot be assigned by parol: Walsh’s App., 122 Pa. 177.
    The gift of a bond by parol will be inoperative: Licey v. Licey, 7 Pa. 251.
    The construction of form 159 was exclusively for the court, it being a writing : Esser v. Linderman, 71 Pa. 76.
    Whether a writing is a will or not does not depend upon the maker’s declaring it a will at the time of his executing it, but upon its contents : Patterson v. English, 71 Pa. 454.
    Form 159 is certainly not an assignment and therefore the plaintiff is not entitled to recover.

      John P. Kelly, with him J. Alton Davis and John R. Edwards, for appellee.
    -To create an assignment no particular form is necessary, an order for the whole fund is an assignment thereof: Caldwell v. Hartupee, 70 Pa. 74.
    Any act which shows a present intention to appropriate a particular fund amounts to an assignment: 1 Am. & Eng. Ency. of Law, 835.
    Parol assignments of life insurance policies have always been favored in Pennsylvania: Maderia’s Est., 15 W. N. C. 318; Maderia’s Est., 17 W. N. C. 202; Morrell’s Est., 8 W. N. C. 183.
    The plaintiff as assignee of this policy wap clearly authorized to bring suit in her own name under the act of March 14, 1873, P. L. 46.
    February 16, 1897:
   Opinion by

Willard, J.,

Two actions were brought in the court below by Anna O’Grady, the appellee, against the Prudential Insurance Company of America, the appellant, being there tried as one action and argued together in this court. The actions were upon two policies of insurance each insuring the life of Cecilia O’Grady,, mother of the appellee, and promising to pay the amount in each policy named to the executor or administrator of the insured, with a proviso that after the death of Cecilia O’Grady a receipt signed by a relative by blood of the insured for the amount agreed to be paid, should be a full discharge of the company from all liability under the policies.

At the date of the policies no beneficiary was designated, but on August 17, 1889, the assured designated her daughter, the appellee, as the beneficiary to receive the moneys mentioned in both policies after her death. At the request of the insured the agent of the company procured from the home office the necessary blanks for designation of a beneficiary. These blanks were procured by him from the appellant’s office and are designated by the company as “ Form 159.” They were filled up by the agent, signed by the insured in his presence, after execution being attached to the policies hy the agent and delivered to the. insured. By a foot note to the said “ Form 159 ” the holder of, the policy is directed to retain the same after execution and present it to the company when claim is made. On the same. day the insured delivered to the appellee the designations thus executed and the policies, at the same time saying to her “ Anna, I give those to you to have after my death, that you collect this money after my burial and keep it for yourself.” The policies thus delivered were deposited by the appellee in her own trunk and she continued to pay the company the weekly dues until the death of her mother on the 23d of April, 1891. It ivas admitted at the trial that due proofs of death were delivered to the company by the appellee according to the terms of the policies.

It is contended by the appellant that the designation of the daughter as the beneficiary by the mother was ineffectual to. vest a right of action in the appellee, because the instrument-of designation was revocable. It is sufficient for us to know that the instrument was never revoked and its effect remains to be considered.

The language of the policy contemplates and invites a desig-; nation of the character made and provides for payment to and receipt by any blood relation of the insured. To make more effectual this clause of the policy, “ Form 159 ” was prepared and issued by the company. Its terms are not equivocal. By the designation on the form thus furnished, Mrs. O’Grady re-' quested and directed the appellant, in the event of her death-prior to the death of her daughter, to pay the benefit specified in the policies to the appellee, and her receipt or other proof of payment to her should operate as a full discharge to the company from all liability under the terms of the policies. Of this designation the company had full knowledge through its agent, and continued to receive its weekly dues from the beneficiary for nearly two years prior to the death of the insured, without calling in question the validity of the instrument of designation. The death of the insured fixed the rights of the appellee and they then became vested in her as fully and completely as though she had been originally designated in the policy as the beneficiary. In default of payment on the part of the company-a right of action accrued to the appellee which she had a right to maintain in her own name.

The delivery of the policies to the appellee and the retention of the same in her possession until the time of her mother’s death, coupled with other, circumstances connected with the transaction, was an assignment of the policies by the mother to the daughter: Malone’s Appeal, 38 Leg. Int. 303; Maderia’s Appeal, 17 W. N. C. 202; Bond v. Bunting, 78 Pa. 210.

The appellee being the assignee of the policies had a right of action in her own name as assignee under the provisions of the act of assembly of the 14th of March, 1873, P. L. 46, which provides that “It shall be lawful for the assignee or assignees of the whole or any part of any policy of life, fire or marine insurance, his executor or administrator, to bring suit, in the name of the assignee or assignees, for his, her or their interest in any policy of insurance, against the company issuing the same, upon the happening of the contingency provided against.”

One of the policies upon which this suit is founded purports to be under the seal of the company, the other is not under seal. It is claimed by the appellant that as to the policy under seal the appellee had no right of action in her own name for the reason that the assignment was not executed under seal and in the presence of two witnesses as provided in the act of 1815 relative to the assignment of bonds and specialties.

At the time the act of 1873 was passed, policies of insurance were issued by the companies, some under seal and others not under seal. Blank forms of assignment were, in many cases, attached to the policies, or blank forms furnished by the companies, not contemplating execution by seal or in the presence of witnesses. To remedy this mischief the act of assembly in question was passed providing for the bringing of actions by assignees in their own names without regard to the form of assignment.

If the contention of the appellant is correct this act of assembly would be useless legislation, as no action could be brought by the assignee upon a policy under seal unless the assignment was also under seal and executed in the presence of two witnesses. The act of 1873, being a remedial statute, is to be construed liberally. The intent of the legislature was evidently to do away with the forms prescribed by the act of 1815 as to fire, life and marine insurance policies. If that was not the intent, the act accomplished nothing, and to give it the construction contended for by the appellant would render its provisions ineffectual to remedy the mischief.

A bona fide owner of an insurance policy by assignment in writing, or by its delivery as a chose in action is entitled to a speedy remedy to enable him to recover the amount agreed to be paid by the terms of the policy. To make the remedy effectual the act of 1873 declares that the assignee may bring the action in his own name. The legislature evidently intended to provide the remedy for the existing mischief. So the act was intended and so it should be construed.

It will be observed that the consent of the company to the assignment of the policies in question was not required by their terms. It was said by Mr. Justice Sterrett in National Aid Society v. Lupoid, 101 Pa. 119, “ It is claimed, however, that the suit was rightly brought under the act of March 14, 1873, authorizing assignees of life, fire and marine insurance companies to sue in their own name. This would undoubtedly be so if the association had assented to the transfer; but when it is made an express condition of the contract itself that the certificates should not be otherwise assigned or transferred, the act referred to does not apply.” In the above case the assignment required the assent of the company to make it valid. The transfer or assignment was not, however, executed in pursuance of the act of 1715.

The question of the age of the insured was properly left by the trial judge to the jury.

The assignments of error are all overruled and the judgment affirmed.


text:
    Anna O’Grady v. The Prudential Insurance Company of America, Appellant.
    Argued Jan. 12, 1897.
    Appeal, No. 29, Jan. T., 1897, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1891, No. 184, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder and Orlady, JJ.
    Affirmed.
    Verdict for plaintiff $151.91. Defendant appealed.
    February 16, 1897:
   Opinion by

Willard, J.,

For the reasons assigned in the opinion in the case of Anna O’Grady v. The Prudential Insurance Company of America, No. 28, January term, 1897, the specifications of error are overruled and the judgment affirmed.


author: Wickham, J.,

text:
    Commonwealth v. Samuel S. Shober, Appellant.

      Principal and agent — What constitutes the relationship.

    A factor is an agent employed to sell goods consigned to him or delivered to him by or for his principal for a compensation commonly called factorage or commission.
    An agreement to sell as factor or consignee certain goods to be shipped by the consignor and.further providing that until settlement made all such goods, moneys, accounts, etc., arising from sales of same shall be considered as belonging to consignor and as such to be kept separate and distinct constitutes the relation of principal and agent.
    ' Criminal law — Agent liable for fruit of illegal transaction.

    If money has been actually paid to an agent, for the use of his principal, the legality of the action of which it was the fruit does not affect the right of the principal to recover it. nor the criminal liability of an agent for embezzlement as consignee. An agent may not be heard to deny the tille of his principal.

      Foreign corporation — Proof of compliance with act of 1874 not required ■ — Embezzlement of agent.

    A foi'eign corporation having caused its agent to be indicted under section 125 of the act of March 31, 1860, P. L. 411 providing for the punishment of embezzling consignees, the commonwealth is not obliged to prove that the consignor had complied with the act of April 22, 1874, P. L. 108, which makes it unlawful for any foreign corporation to do business in Pennsylvania, without first filing in the office of the secretary of the commonwealth, the statement required by the act.
    Argued Nov. 10, 1896.
    Appeal, No. 149, Nov. T., 1896, by defendant, from judgment and sentence of Q. S. Lancaster Co., Jan. T., 1895, No. 122, on verdict of guilty.
    Before Rice, P. J., Willard, Wickham, Beaver, Orlady and Smith, JJ.
    Affirmed.
    Orlady, J., dissents.
    Indictment for embezzlement as factor and consignee. Before Brubaker, J.
    The facte sufficiently appear in the opinion of the Superior Court.
    Verdict of guilty and sentence thereon. Defendant appealed.

      Errors assigned, seven in number, were directed to the single question whether or not a conviction- should • have been permitted in view of tbe evidence as to whether or not tbe commonwealth had proved a compliance with the provisions of the act of 1874 relative to foreign corporations, by the consignor company which it was admitted was a corporation, of the state of Maryland. The exceptions challenged the sufficiency of proof by the commonwealth and assigned as error (6) the following specific portion of the charge of the trial judge: “ If you believe the witnesses for the commonwealth, and that the defendant embezzled these moneys of the company, then you ought to find him guilty, no matter whether the prosecutor is a nonresident or not. It would be a shame to the commonwealth of Pennsylvania for people to say we do not mete out justice here to people because they are not residents.”
    N. Franklin Hall and J. Hay Brown, with them W. U. Hensel for appellant.
    Where a foreign corporation has not complied with the act of April 22, 1874, P. L. 108, an indictment cannot be sustained which charges the defendant with embezzlement as consignee in the transaction of business with a corporation doing business under such circumstances: McCanna & Frazer Co. v. Citizens’ Trust & Surety Co., 74 Fed. Rep. 597. See also 6 Dist. Rep., 25.
    “ Where a contract grows immediately out of and is connected with an illegal or immoral act, a court of justice will not lend its aid to enforce it:” Holt v. Green, 73 Pa. 198; Johnson v. Hulings, 103 Pa. 504; Armstrong v. Toler, 11 Wheat. 258; Craig v. State of Missouri, 4 Pet. 410.
    The provisions of the act of April 22, 1874, it was declared in an opinion delivered by Mr. Justice McCullom, “ indelibly stamped as unlawful any business transaction in the state by a foreign corporation which has not complied with them. It is only by its observance of them that it can have a legal existence for business purposes within this jurisdiction, or acquire contractual rights which our courts will recognize: ” Lasher v. Stimson, 145 Pa. 30; Thorne v. Insurance Company, 80 Pa. 15.
    “ A foreign corporation which has not complied with the act of April 22,1874, is not competent to enter into a contract such as that involved in this case; ” and any contract made under it is unlawful and void: Atherton v. The city of Wilkesbarre, 3 Kulp, 402.
    “No court will lend its aid to a party who grounds his action upon an immoral or an illegal act. The principle to be extracted from all the cases is, that the law will not lend its support to a claim founded on its own violation: ” Holt v. Green, 73 Pa. 198.

      Wm. Aug. Atlee, with him B. F. Eshleman and George A. Lane, district attorney, for appellee.
    February 16, 1897 :
   Opinion by

Wickham, J.,

Samuel S. Shober, the defendant, contracted in writing, on June 2,1893, with the Maryland Fertilizing and Manufacturing Company, to receive and sell in Pennsylvania on commission, as a factor or consignee, land fertilizers, of different kinds, to be shipped to him by the company. . The company was a Maryland corporation.

Among other stipulations of the contract are the following: “ It is also agreed that until settlement is made as herein provided for, all fertilizers and all monies, accounts, notes, liens or evidences of debt arising from sales of same, shall be considered as belonging to the said Maryland Fertilizing and Manufacturing Company, and shall not be estimated or valued in any other manner, and shall be kept separate and distinct from any other business transacted by the said S. S. Shober, until turned over to the said Maryland Fertilizing and Manufacturing Company, as before specified.”

Under all the authorities, English and American, the agreement mentioned created the relation of principal and agent, between the defendant and the company. A factor is defined to be “ An agent employed to sell goods or merchandise consigned, or delivered, to him, by or for his principal, for a compensation, commonly called factorage or commission : ” 1 Bouv. L. D. 640. One selling goods for another is an agent, although paid by a share of the profits, provided that the arrangement falls short of making him a partner. But even a partner, who in a sense is an agent too, is fully subject to the principle of the law of agency hereafter to be considered.

Within a few months after the contract was entered into, the defendant received from his principal, fertilizers of the value of $964, all of which, save a small quantity, valued at $29.00, he sold and received the prices thereof. The company managed to get back the unsold goods; for the rest it has not received a cent of compensation. When the time for a settlement came, the defendant offered, provided he received a full release, a sum so absurdly small, that the principal’s representative refused to consider the offer. Failing to accomplish his purpose, the defendant, although admitting, that from his own standpoint he owed the company over $415 — whereof he had $225 then in his pocket — which was demanded of him, utterly refused to pay anything. After being given ample time wherein to make restitution, and thus at least mitigate his offense, during which period he tendered neither explanation nor money, an agent of the consignor made an information against him, under section 125 of the act of March 31, 1860, P. L. 412, providing for the punishment of embezzling consignees or factors. On this information he was indicted and very justly convicted.

It is contended, however, and this is the only defense pressed here, that the defendant should have been acquitted because, as is alleged, the commonwealth failed to fully prove that the consignor had complied with the act of April 22, 1874, P. L. 108, which makes it unlawful for any foreign corporation to do business in Pennsylvania, without first filing, in the office of the secretary of the commonwealth, the statement required by the act, and also provides for the punishment of any one transacting business for such corporation, unless the statutory provisions are first complied with.

The commonwealth was not required to establish the fact in question. It is an elementary rule of the law of agency, applicable alike in civil and criminal proceedings, that the agent shall not be heard to deny the title of his principal. This rule is founded on reason, public policy and common honesty. Nor does it matter whether the goods or money retained or embezzled, by the agent, came to his hands through transactions tainted with illegality. “ The contract of the agent to pay the money to his principal is not immediately connected with the illegal transaction, but it grows out of the receipt of the money for his principal: ” Story on Agency, sec. 347. “ If money has been actually paid to an agent, for the use of his principal, the legality of the action, of which it is the fruit, does not affect the right of the principal to recover it. . . . The agent, whose liability arises solely from the fact of having received money for another’s use, can have no pretence to retain it: ” Dunlap’s Paley’s Agency, 62. “ While the law will not enforce an illegal contract, yet if a servant or agent of another has, in the prosecution of an illegal enterprise for his master, received money or other property belonging to his master, he is bound to turn it over to him and cannot shield himself from liability therefor, upon the ground of the illegality of the original transaction : ” Wood on Master and Servant, sec. 202. “ An agent who has in his hands money belonging to his principal, on a closed or terminable account, cannot set up as a defense to an action by the principal for money had and received, the illegality of a part or of the whole of the transactions: ” Whar. on Agency, secs. 26. 250; see also to the same effect, Mechem on Agency, sec. 526 ; 1 Am. & Eng. Ency. of Law, 2d ed. 1088. In 2 Bish. Crim. Law, sec. 354, the author says that a servant prosecuted for embezzlement cannot defend on the ground that the master became a wrongdoer by causing the servant to receive the money. The same author remarks (vol. 2, sec. 347), that in the cases on embezzlement, the words “clerk,” “agent” and “servant” are employed almost interchangeably.

If a servant obtain money fraudulently for his master and then embezzle it, the offense is complete. Where the servant holds the money for his master, whether the master could have recovered it from the party who paid it is irrelevant: 1 Whar. Crim. Law, secs. 1025, 1038.

The rule, thus announced by all the leadihg writers on the subject of agency, as well as by all the authors of text books on criminal law who have touched on the subject is no longer open to doubt. It was applied in Sharp v. Taylor, 2 Phillips’ Chan. 801, where a partner refused to recognize his copartner’s ownership in a vessel and right to an accounting for profits, because they had used the vessel in traffic in a manner violative of the navigation laws of both Great Britain and the United States; in Tenant v. Elliot, 1 Bos. & P. 3, where the plaintiff’s broker effected, for him, an illegal insurance, and on the ground of the illegality tried to withhold from his principal the money paid by the underwriters, and also in other English cases.

These decisions have been approved and followed by the Supreme Court of the United States in McBlair v. Gibbes, 17 How. 232, Law ed., book 15, p. 132, and Brooks v. Martin, 2 Wall. 70; Law ed., book 17, p. 732.

In the U. S. Express Co. v. Lucas, 36 Ind. 361, it appeared that the plaintiff had not complied with a statutory, preliminary requisite to warrant it in doing business in Indiana, and its agent, the defendant, interposed this as a defense. It was held that while a suit could not be maintained on the defendant’s bond, yet a recovery might be had for money had and received, the court saying, “ To hold that an agent is not bound to account for money received by him, is to sanction an act of the grossest dishonesty and bad faith on the part of the agent, without the accomplishment of any equivalent benefit to any one, or to the public.” In State v. Turney, 81 Ind. 559, the agent of a foreign insurance company, when prosecuted for embezzlement, set up the defense, that the company had failed to file a statement in the proper office, as required by statute. It was held insufficient to prevent conviction. In State v. O’Brien, 94 Tenn. 79, likewise a prosecution for embezzlement, a similar defense was held unavailing. It State v. Shadd, 80 Mo. 358, one • selling pools, contrary to law, received money in behalf of a purchaser and embezzled it. In was decided that his conviction was proper. The defendant, in Commonwealth v. Smith, 129 Mass. 104, sold liquors contrary to law, in the state of Massachusetts, for his principals living in Ohio, receiving a share of the profits in lieu of salary. The illegality of the business did not save him from conviction, for embezzling his principal’s money, received from the goods sold. So, in the same state, it was held that a broker might be guilty of embezzlement for converting to his own use, money placed in his hands for an illegal purpose: Commonwealth v. Cooper, 130 Mass. 285. In State v. Spalding, 24 Kan. 1, Judge Brewer, now of the United States Supreme Court, tersely said, “ one who is agent enough to receive money, is agent enough to be punished for embezzling it.”

In our own state, while it was held in Thorne v. Ins. Co., 80 Pa. 15, the leading ease cited for the appellant, that a foreign corporation, doing an illegal business in Pennsylvania, could not recover on a bond given by its agent to secure the proper performance of his duties, yet it was conceded, in the opinion, that an action would lie against the agent, for money had and received.

The English case of Regina v. Hunt, 8 Carr. & Payne, 642, hastily decided at nisi prius, has sometimes been cited as not being in harmony with the authorities referred to above. It is, however, easily distinguished from the latter, as was pointed out in Commonwealth v. Smith, supra.

In Regina v. Hunt, it appeared that the society, whereof the defendant was a servant, was made, by statute, absolutely and wholly illegal. In the present case, the corporation was not, inherently an unlawful body. Our statute goes no further than to make .its business unlawful, where there has been a failure to comply with the statutory requirements. It may be doubted too, whether any court in America would, to-day, go so far as was done in Regina v. Hunt, in protecting a dishonest servant or agent.

The decision in State v. Williamson, 118 Mo. 146, is not applicable here. In that case a mail carrier attempted to assign money to become due him from the government in the face of an act of congress declaring such an assignment void. He afterwards collected the money and refused to pay his assignee. This was held not to be embezzlement, as the assignment did not divest him of the right to collect for himself, hence he was not the agent of the assignee in receiving the money. At the same time the rule, which governs the present case, was referred to and fully recognized.

It is hardly necessary to say, that actions brought by unlicensed brokers for commissions, by principals on bonds given by agents to secure the performance of their duties in illegal enterprises, and similar cases based on executory contracts, do not fall under the operation of the rule here applied.

The specifications of error are overruled, the judgment affirmed, and it is directed that the record be remitted to the court below, to the end that the sentence may be executed.

Orlady, J, dissents.


author: Orlady, J.,

text:
    Emma L. Clowes v. David D. Hughes and Evan G. Hughes, Copartners, trading as Hughes Brothers, Appellants.

      Warehouseman — -Conversion—Notice of title.

    Ordinarily in order to create a conversion a sufficient demand and re fusal are both essential. A demand is nothing without a refusal. Where, however, on notice of title to goods stored with a warehouseman there is not only denial of title in the claimant but an assertion of title in and. delivery of the goods to another pei'son, after notice of a dispute, a clear case of conversion of the property is made out.
    Where a warehouseman elects 'to settle a controversy between disputants he volunteers too much, as he is fully protected under the statute regulating his business.
    Under such conditions it is not necessary to make tender of the charges and demand the property before bringing suit.
    Argued Oct. 6, 1896.
    Appeal, No. 6, Nov. T., 1896, by-defendants, from judgment of C. P. No. 3, Phila. Co., June T., 1894, No. 1001 on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Trespass. Before Feyletter, P. J.
    The facts are sufficiently set out in the opinion of the Superior Court.
    Verdict for plaintiff for $287.50. Defendants appealed.

      Errors assigned were (1) In overruling the following offer of testimony on behalf of the defendant.
    “ Counsel for defendant 'offers to show by this witness (Mrs. Bourne), that this bill of sale was executed by witness to Mrs. Clowes to secure an indebtedness amounting to about $300— that the goods mentioned in the bill of sale — the possession of said goods was never parted with by Mrs. Bourne, and that after the date of the bill of sale she continued to retain possession of the goods as before, and exercised full ownership over them.”
    (2) In overruling the following question propounded by counsel for defendant to. said witness, Mrs. Bourne.

      “ Q. What was said to you at the time the paper was signed ? ”
    (3) In overruling the following offer of evidence upon behalf of the defendant:
    “ Counsel for defendant offers to show by this witness, Mrs. Bpurne, that at the time the paper was signed it was signed without her understanding the nature- and purport of it, and that it was not explained to her.”
    (4.) In charging the jury as follows :
    “ The goods in controversy in this case were originally owned by Mrs. Bourne, and were placed by her on storage with the defendants. After they had been so placed there Mrs. Bates (Bourne), by a bill of sale, sold the goods to the plaintiff. I have not seen the bill of sale, but I presume it is in the usual form, and was an absolute change of ownership. The goods were originally placed on storage with the defendants. It is a matter of no consequence that Mrs. Bourne sold these goods to the plaintiff, if it was before she placed them on storage, then she had no claim whatever on them, and she had no right to interfere in any way with the care or custody or ownership of the goods, but inasmuch as she allowed her to have possession of the goods, and she put them on storage, then the defendant was bound to recognize no one but Mrs. Bates [Bourne] who placed the goods in his charge as owner.”
    (5) In charging the jury as follows:
    If there is no evidence in this case that she made a tender or an offer to secure him for the charges he had upon them the verdict must be for the defendant. If, however, you are satisfied from all the testimony in the case that the plaintiff did make such a tender and did make such an offer, and was ready and willing and able to comply with the offer and defray all the charges up to that time, then he was bound to deliver them to her whenever she made a proper demand.”
    (6) In charging the jury as follows :
    “ In cases of this kind there should be positive and direct evidence satisfactory to the juiy, I mean, that the goods were of some specific value, and the plaintiff should not leave a matter of. this kind for the jury to guess at, but the jury must determine from the evidence, whatever it is, what the value of the goods was. ■ It is in evidence that they were sold for #300, while in his possession. That is, shortly before any demand whatever was made.”

      (7) In declining the defendants’ first point, to wit:
    “1. It was the duty of the defendants to deliver the goods to the party who deposited them with the defendants, and with whom they made their contract. Your verdict should therefore be for the defendants.”
    (8) In declining the defendants’ third point of charge, to wit:
    “ 3. A mere notice in writing mailed to the defendants is not a legal or proper demand. To constitute a legal or proper demand the plaintiff or her agent should have demanded the goods in person, prepared to remove the same, and offering to pay the legal charges and expenses to which the defendants were entitled.”
    (9) In declining the defendants’ fourth point of charge, to wit:
    “ 4. The evidence in this case shows that the goods in question were the property of the owner, Mrs. Bourne, and the defendants were justified in delivering the goods to her. Your verdict should therefore be for the defendants.”
    (10) In declining the defendants’ seventh point of charge, to wit:
    “ 7. Under all the evidence the verdict should be for the defendants.”

      Charles A. Chase, for appellants.
    Plaintiff’s claim was simple debt, and a debt cannot be recovered in an action of this kind: Davis v. Thompson, 12 Cent. 721; Berry v. Vantries, 12 S. & K. 89; Jones v. Hart, 2 Salk. 441; Muller v. Knapp, 133 Pa. 275.
    There was no proper demand by plaintiff for the goods, and an offer to pay the lien for storage: Miller v. Smith, 1 Phila. 173.

      Joseph S. Goodbread, for appellee.
    It is a principle of law that as between vendor and vendee the actual delivery to the possession of the purchaser is not necessary: Stephens v. Gifford, 137 Pa. 219; Com. v. Hess, 148 Pa. 98; Garretson v. Hackenberg, 144 Pa. 107; Croft v. Jennings, 173 Pa. 216.
    Trover could have been maintained against Mrs. Bourne for the conversion of these goods and chattels, but the appellee proceeded against the appellants because they had possession of them with the knowledge that they belonged to the appellee.
    January 18, 1897:
   Opinion by

Orlady, J.,

This action of trespass was brought against defendants, who conducted a piano and storage warehouse business, to recover the value of certain household goods which had been deposited on storage by one Mary F. Bales (Bourne) on September 16, 1892, and returned by them to her May 26, 1898.

While the goods were in storage, Hughes Brothers had notice that the title to the goods was in dispute. The plaintiff testified: “Q. Did you notify Hughes Brothers of the sale of the goods to you? A. Yes, sir; they knew that they belonged to me. Q. With whom did you go there and tell them ? A. Mrs. Sweeny. Q. Who else? A. Mrs. Bourne. Q. And she is the one who sold them to you? A. Yes, sir.”

Mrs. Sweeny, for plaintiff, testified: “Q. Was there anything said by anybody to Mr. Hughes about who owned the goods ? A. Yes, sir; Mrs. Bourne told Mr. Hughes that Mrs. Clowes owned them. Q. Before you bought them? A. When I was about buying them. Q. What became of the other goods? A. They were moved away on Wednesday; he (Mr. Hughes) said they belonged to Mrs. Bourne, and he gave them to her.”

For defendants, Evan G. Hughes testified: “ Q. Had you any conversation with Mrs. Clowes? A. Yes, sir; she claimed the goods belonged to her, and we recognized no one but Mrs. Bourne in the matter. Q. You were informed before that Mrs. Clowes was the owner of the goods ? A. No, sir. Q. Didn’t she claim the ownership of the goods ? A. She claimed them, no doubt; but Mrs. Bourne claimed them, and she was the only one we knew in the transaction. And later, Mrs. Clowes came there and said that the goods belonged to her.”

Defendants did not admit formally that there was a change of ownership, but from the above, and a letter delivered from counsel for plaintiff, they had notice that the goods were claimed by Mrs. Clowes. With this knowledge of disputed title and claim made by the plaintiff for the property, the defendants received the storage charges from Mrs. Bourne and delivered the goods to her.

Plaintiff admits that no formal demand for the property was made, or offer to pay the charges against them, but contends that these usual requisites were not necessary in view of defendants’ denial of her title and refusal to recognize any one but Mrs. Bourne in the matter.

Ordinarily a sufficient demand and refusal are both essential. The demand is nothing without the refusal: Taylor v. Hanlon, 103 Pa. 504. But here was not only a denial of title in Mrs. Clowes, but assertion of title in and delivery of the goods to Mrs. Bourne after notice of the dispute. This was clearly a conversion of the property: Hinckley v. Baxter, 13 Allen, 139; Thompson v. Rose, 16 Conn. 71; Story on Bailment (8 ed.), sec. 122; 2 Greenleaf on Evidence, secs. 642, 644, 645.

The warehouseman elected to settle the controversy between these disputants, and decide whether the contract exhibited called a bill of sale, was a bailment or an absolute sale. He volunteered too much, as he was fully protected under the statutes regulating his business. Hughes Brothers were not guarantors of the title to the goods. While Mrs. Bourne held the receipt given by them when the goods were stored, they knew the claim of Mrs. Clowes was, that she was absolute owner of the property which had been stored with them iii fraud of her right to them: Insurance Co. v. Kiger, 13 Otto (U. S.), 352.

Under the facts as made by Hughes Brothers, it was not necessary to make tender of the charges, and demand the property before bringing suit: Alden v. Pearson, 3 Gray, 342; Springer v. Groom, 21 W. N. C. 242.

They waived all this by assuming' to determine the title in Mrs. Bourne and delivering the property. Hughes Brothers were not the agents of Mrs. Bourne, but the bailees of the property for the rightful owner, and could properly have refused to deliver to either without being made secure in so acting; or refer the disputants to the courts, where the warehousemen would have been protected as to their charges and liability. If the defendants were not entitled to the benefits of the law regulating the business of warehousemen they were admittedly bailees with notice of the plaintiff’s claim of ownership, and whether her claim as absolute owner was well founded or not, it is conceded that she held a bill of sale for the property as security for moneys advanced to Mrs. Bourne. This under the .law entitled her to the possession of the property as against all but bona fide claimants in possession, and was sufficient to enable her to maintain the action: Boyle v. Rankin, 22 Pa. 168 ; Steelworks v. Hallgarten, 15 W. N. C. 47; and the defendants having disposed of the goods in disregard of her claim entitled the plaintiff to bring suit without notice or demand: Croft v. Jennings, 173 Pa. 216.

There was sufficient evidence of the value of the property to warrant the verdict.

The judgment is affirmed.


author: Rice, P. J.,

text:
    Commonwealth of Pennsylvania v. Solomon Fogelman and Harris Flomenhaft, Appellant.

      Practice, Superior Court — Review—Forfeited recognizance.

    The forfeiture of recognizance after judgment will not be reversed for a cause which, if it has any merit at all, might have been pleaded when, defense was made to the action.

      Practice, Superior Court — Review—Forfeited recognizance — Certiorari.

      . An appeal from the order of the quarter sessions discharging a rule to show cause why the forfeiture of a recognizance should not be remitted and the judgment stricken off cannot be treated as an appeal under the act of 1783, but rather as a substitute for a certiorari, and any application to strike off the judgment can only be sustained on the ground of irregularity appearing on the record.

      Practice, C. P. — Relief from forfeited recognizance.

    Where there is a regular and final forfeiture of a recognizance the liability of the recognizors is absolutely fixed thereby, and relief therefrom should be sought by petitioq to the court to respite the recognizance for cause to be shown under the act of 1783. In a suit upon a recognizance the entry oE a forfeiture stands for proof of all the steps necessary to complete the forfeiture upon the principle, omnia pr-aesumunter rite esse acta, hence, it must be taken for verity that the defendant and his bail were duly called and did not appear or answer.
    Argued Dec. 18, 1896.
    Appeal, No. 174, Nov. T., 1896, by Harris Flomenhaft, from order of Q. S. Phila. Co., Dec. Sess., 1895, No. 1, discharging rule of appellant to remit forfeiture of recognizance and strike off judgment.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.

      Rule to remit forfeiture of recognizance and strike off judgment. Before Hake, P. J.
    The facts sufficiently appear in the opinion of the Superior Court.

      Louis Paul Brenan and H. Homer Dalbey, for appellant.
    The surety was only bound for the appearance of the defendant at the proper term and the respite from term to term without application or consent of said surety does not revive the forfeiture but the same dies and is not extended to the time of first bringing suit: Com. v. Oblender, 135 Pa. 530.
    The commonwealth having continued the case of Fogelman from term to term and stayed proceedings on the forfeited rer cognizance from term to term, this is laches on the part of the commonwealth, and causes the said forfeiture to die: Mishler v. Com., 62 Pa. 55.
    The recognizance itself is the record, and the entries upon th,e back of it are the entries of what took place in regard to the forfeiture: Com. v. Oblender, 135 Pa. 530.

      Clayton B. Fife, with him George S. Graham, district attorney, for appellee.
    No appeal lies from an order of the court of quarter sessions refusing to moderate or remit a forfeited recognizance : Bross v. Commonwealth, 71 Pa. 262; and an entry of forfeiture is conclusive that the defendant was called and did not appear and that all the steps necessary to complete the forfeiture had been taken: Fox v. Commonwealth, 81* Pa. 511.
    When the court of quarter sessions has jurisdiction and no error appears upon the face of the record, an order of said court refusing to remit the forfeiture of a recognizance for appeaiarice therein, may not be reviewed on an appeal to the Supreme Court: Com. v. Oblender, 135 Pa. 530, 536; Commonwealth v. Bird, 144 Pa. 194.
    When there is a regular formal forfeiture of a recognizance the liability of the recognizors is absolutely fixed thereby, and relief therefrom must be sought by petition to the court, tó respite the cognizance for cause to be shown under the provisions of the'act of 1783: Faulke v. Com., 90 Pa. 257.
    The argument of the appellant in siipport of his appeal from the- order to remit the forfeiture is based wholly upon proceed! ings subsequent to the forfeiture, and involves nothing more than questions relating to the merits of the case. These have been passed upon by the court below and decided adversely to the appellant, and that decision is final.
    Even though it were not final, the proceedings subsequent to the forfeiture could not affect in any way the legality of the forfeiture on December 30,1895, and are therefore irrelevant to the question before this court.
    February 16, 1897:
   Opinion by

Rice, P. J.,

In November, 1895, an action of assumpsit was brought against Harris Flomenhaft on a forfeited recognizance for the appearance of one Fogelman to answer a criminal charge. The statement set forth a copy of the recognizance, and averred that it was duly adjudged and decreed to be forfeited on December 30, 1890. Flomenhaft filed an affidavit of defense, in which he admitted that he entered into the recognizance, and did not deny that it was duly adjudged to be forfeited, as alleged in the plaintiff’s statement. It is unnecessary to refer to the other matters alleged in his affidavit further than to say that they were wholly insufficient to constitute a defense to the action. A rule for judgment for want of a sufficient affidavit of defense was granted, which after argument was made absolute on June 12, 1896. No appeal was taken from this judgment, but on October 27, 1896, after two fi. fas. and a vend. ex. had issued and the defendant’s real estate was about to be sold, he applied for and obtained a rule to show cause why the forfeiture of the recognizance should- not be _ remitted, and the judgment be stricken off. It is to be observed, further, that although the defendant had knowledge, for a long time, of the forfeiture, he made no effort to have it remitted, or to produce Fogelman for trial. On the contrary it appears by the original affidavit of defense that he has departed the country.

The present appeal was taken from the order discharging the above mentioned rule.

As the order refusing to remit the forfeiture was entered in the court of quarter sessions, it is questionable whether an appeal — using that term in its original sense — lies. The act of December 9, 1783, 2 Sm. L. 84, provided that all recognizances forfeited in any court of quarter sessions should be sued for and be recoverable in the court of common pleas of the same county, “ which courts may, and they are hereby empowered to order the said recognizances to be levied, moderated or remitted on hearing the circumstances of the case according to equity and their legal discretion.” The next section provided that the Supreme Court “may hear appeals from such orders or judgments of the courts of common pleas on the said forfeited recognizances at the next ensuing term after such judgment given, but not afterwards, and finally decide on the same.” By the act of April 22, 1846, P. L. 477, exclusive jurisdiction of suits upon recognizances forfeited in the court of quarter sessions of Philadelphia was conferred upon that court; and by the prior act of April 4, 1837, P. L. 378, it was provided that the court should have power to moderate and remit the same as effectually as the courts of common pleas might do.

Under the act of 1783 it would seem that the court of common pleas, as well as the- court of quarter sessions, had jurisdiction of an application to remit or moderate the forfeiture of a recognizance entered in the latter court; and it was suggested in Com. v. Rhoads, 9 Pa. 488, that from the order of either court there would be an appeal to the Supreme Court. But in Bross v. Com., 71 Pa. 262 it was held, that the act gave an appeal only when the order was made in the common pleas. Said WmniAMS, J.: “ The suggestion in the ease of Com. v. Rhoads, that from the order of either court there is an appeal is a mere dictum not warranted by the language of the proviso or by any other provision of the statute, which are too plain to admit of any doubt as to their meaning.” To the same effect are Com. v. Oblender, 135 Pa. 536 ; and Com. v. Bird, 144 Pa. 194. Treating the present appeal as a substitute for a certiorari, and not as an appeal under the act of 1783, we discover no error in the record requiring a reversal of the judgment. Where there is a regular and formal forfeiture of a recognizance the liability of the recognizors is absolutely fixed thereby, and relief therefrom should be sought by petition to the court to respite the recognizance for cause to be shown under the act of 1783: Foulke v. Com., 90 Pa. 257. In a suit upon a recognizance the entry of a forfeiture stands for proof of all the steps necessary to complete the forfeiture, upon the principle omnia preesumunter rite esse acta; hence it must be taken for verity that the defendant and his bail were duly called and did not appear or answer: Fox v. Com. 81* Pa. 511; Com. v. Basendorf, 153 Pa. 459.

Prior to our procedure act no evidence was admissible under the pleas of nil debet and payment but wbat tended to show, either that the recognizance was not forfeited, or that it had been remitted by lawful authority: Com. v. Newland, 10 S. & R. 355. But it was always competent to defend the action upon the ground that there was no forfeiture in fact if the record did not show a forfeiture. Such defense involves no impeachment of the record. It is simply a denial of a breach, and of a forfeiture of the recognizance and an offer to sustain the denial by an appeal to the record. Upon this feature of his present application the defendant had an opportunity to be heard when he filed his affidavit of defense. If, as he now alleges, the record shows that the recognizance was not duly and properly forfeited on December 30,1890, but that the case was not called up until 1894 or thereabouts, he might, and should, have made that defense to the action. The commonwealth alleged that the recognizance was duly forfeited, and that the record sued upon showed it. The defendant did not see fit to deny these allegations then, nor to appeal from the judgment within the statutory period. For the purposes of the rule for judgment they were therefore to be taken as admitted facts, and the judgment was entirely regular under the pleadings. It would have been error to refuse judgment, and if it were an ordinary judgment it would have been equally erroneous to strike it off upon the allegations of the defendant’s petition as to matters dehors the record. A motion to strike off a judgment must be on the ground of irregularity appearing on the face of the record: O’Hara v. Baum, 82 Pa. 416; North v. Yorke, 174 Pa. 349, and cases there cited. See also Applegate v. Cohn, 1 Pa. Superior Ct. 174, 344. The judgment unappealed from stood as an adjudication that the defendant entered into the recognizance, and that it was duly forfeited.

We are not to be understood as saying that the court may, under no circumstances, remit or modify the forfeiture of a recognizance after judgment, but only that it is not reversible error to refuse to do so for a cause which, if it has any merit at all, might have been pleaded when defense was made to the action.

Order affirmed, and appeal dismissed at the costs of the defendant.


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    George F. Lasher, Appellant, v. The Medical Press Company, Limited, The Medical Publishing Company, William H. Pancoast, H. W. Hancock, E. W. McMullen and Frank S. Parsons.

      Appeals — Review—Findings of fact by court below — Fraud.
    An appellate court will not reverse the court below upon its findings of fact except for palpable error.
    Fraud is not to be presumed, it must be clearly proven; the presumption of innocence will prevail until overthrown by clear proof of fraud.

      Confessed judgment — Preferred creditor — Fraudulent intent.

    A creditor may take a judgment or conveyance or payment in any form to secure an actual debt, and the transaction will be valid against other creditors, although he knew, (1) that the effect would be to postpone others, (2) that the debtor intended it to have that effect, and (3) although he took it to aid that intention as well as to protect himself. The criterion is not the effect but the fraudulent intent; without that, the transaction cannot be impeached as fraudulent.

      Judgment confessed — Bona fide debt — Fraud.
    A chancellor having found that a judgment had been given to a trustee for the benefit of bona fide creditors under which property was sold and bought in at sheriff’s sale, and subsequently assigned by the sheriff’s vendee to a new corporation composed of directors of a limited partnership, the defendant in the execution, held that the • transaction was valid as against other creditors.
    Argued. Dec. 16, 1896.
    Appeal, No. 144, Nov. T., 1896, by plaintiff, from decree of C. P. No. 2, Phila. Co., June T., 1894, No. 144, dismissing plaintiff’s bill.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Bill, answers and proof. Before Pennypacker, J.
    The above cause having come on to be heard on the sixth and seventh days of November, 1895, before the Hon. Samuel W. Pennypaeker, sitting as chancellor for the taking of the testimony of witnesses on behalf of the plaintiff and defendant, the court, upon due consideration, finds the facts to be as follows:
    First. That The Medical Press Company, Limited, was a partnership association, formed under the provisions of the act of June 2,1874, and that it conducted the business of publishing a periodical known as The Times and Register.
    Second. That on the fifth day of February, 1894, the said Medical Press Company, Limited, being in failing circumstancés, and unable to meet its obligations, confessed judgment for the sum of $321.11 to James D. Winchell, trustee for The Record Publishing Company, Albert DeCernea & Co., the Keighton Printing House, W. H. Hancock and Frank S. Parsons.
    Third. That under said judgment an execution was issued on the sixth day of February, 1894; that the sheriff levied upon the effects of the said Medical Press Company, Limited, including its right, title and interest in and to the said publication, The Medical Times and Register, and sold the same, in due form of law, on the fourteenth day of February, 1894, to J. Martin Rommell, who in turn transferred the same to The Medical Publishing Company, a corporation formed under the laws of the state of New Jersey, subsequent to the confession of judgment by the said Medical Press Company, Limited, to the said James D. Winchell as trustee.
    Fourth. [That there was no fraud in the execution of the confession of judgment by the said Medical Press Company, Limited, to James D. Winchell, trustee, as aforesaid.] [1]
    Fifth. [That there was no fraud in receipt or acceptance of said judgment by the said James D. Winchell, trustee, as aforesaid.] [2]
    Sixth. [That the said judgment was not used fraudulently, by the said James D. Winchell, trustee, as aforesaid.] [3]
    Seventh. That at the time of the confession of the said judgment, the said Medical Press Company, Limited, was indebted to the plaintiff, upon an open account, in the sum of $124.65, and upon a note, dated December 13,1893, payable four months after date, for the sum of $1,059.45, upon both of which judgmentg were subsequently recovered.
    Eighth. That on the twenty-first day of May, 1894, the plaintiff issued an execution upon his judgment recovered as aforesaid, under which the sheriff levied upon and sold the right, title and interest of The Medical Press Company, Limited, in the said publication, known as The Medical Times and Register and purchased the same at sheriff’s sale for the sum of $5.00.
    From these findings the court finds as a matter of law:

      (1) [That the Medical Publishing Company acquired good and valid title to the publication known as the Medical Times and Register from the execution issued on the judgment confessed to James D. Winchell, trustee, as aforesaid, and the sale of the sheriff thereunder.] [5]
    (2) [That the plaintiff acquired no right, title or interest whatever in or to tbe publication known as The Medical Times and Register under the execution issued upon the judgment recovered by him as aforesaid, and the sale by the sheriff to him thereunder.] [6]
    The bill in this case should be dismissed.

      Errors assigned were (1-3) to the findings of fact of the court below, reciting same; (5, 6) to the conclusions of law of the court below, reciting same; (4, 7) in not finding that the confession of judgment was fraudulent; (8-10) in not finding as conclusions of law, as requested by plaintiff, that the transaction was fraudulent and the sheriff’s sale void as to plaintiff; (11) in dismissing plaintiff’s bill.

      Henry Budd, for appellant.

      J. Martin Rommel, for appellee.
    If the judgment were admittedly fraudulent, the plaintiff is pursuing the wrong remedy. The court, even in such a case, would not open the judgment and set aside the sale, but the plaintiff would be relegated to his claim against the fund realized by the sale: Moore v. Dunn, 147 Pa. 359.
    The general rule is that equity will not interfere between debtor and creditor but will leave each to his rights and remedies at law: Artman v. Giles, 155 Pa. 409.
    The facts of this case bring it clearly within the ruling of Werner v. Zeirfuss, 162 Pa. 360.
    A judge of the lower court, when sitting as chancellor, having found that the judgment was not collusive and fraudulent, and his finding having been sustained by the court in banc, the appellate court will not reverse such finding except for palpable error: Baird v. Ford, 152 Pa. 637.
    February 16, 1897:
   Opinion by

Reeder, J.,

We are asked by the appellant in this case to reverse the judge of the court below, sitting as a chancellor, upon certain findings of fact. There are several'assignments of error as to the findings of law, or rather the chancellor’s omission to sustain certain legal propositions which are all dependent upon alleged facts which he did not find. This leaves, therefore, but one question for us to determine.

It is well settled as a law of this state that an appellate court will not reverse the court below upon its findings of fact except for palpable error.

The Medical Press Company, Limited, was a partnership formed under the provisions of the act of assembly of June 2, 1874, and they published for several years a medical journal, known as The Medical Times and Register. Having become involved financially they confessed to T. D. Winchell, as trustee for certain creditors, a judgment upon which execution was issued and the property and effects of the company, as well as all its right, title, and interest in The Medical Times and Register, were purchased by J. M. Rommel at the sheriff’s sale and subsequently transferred by him to the Medical Publishing Company, a corporation organized under the law of the state of New Jersey. The corporators of The Medical Publishing Company were also the directors of the Medical Press Company- and were conversant with and parties to the confession of judgment under which this controversy arose. Several months afterward George F. Lasher, the plaintiff, obtained judgment against the Medical Press Company, issued execution, and purchased at the sheriff’s sale all the right, title, and interest of the Medical Press Company, in The Medical Times and Register. He then brought this bill in equity asking the court below to enjoin the defendants from exercising any control over the property in their possession, because the judgment which led to the sheriff’s sale by virtue of which they claim title was fraudulent and therefore void. The sole question, therefore — except the question of jurisdiction in this case of a court of equity, which was not considered in the court below, and which we will not determine here — is, did the learned judge of the court below, in determining that there was no fraud in tins confession of judgment commit palpable error.

Fraud is not to be presumed; it must be clearly proven; the presumption of innocence will prevail until overthrown by clear proof of fraud: Shoemaker v. Kunkle, 5 Watts, 107; Lutton v. Hesson, 18 Pa. 109; Bear’s Est., 60 Pa. 430; Com. v. Erie & Pittsburg R. R. Co., 74 Pa. 94. While fraud is riot to be presumed yet it can be inferred from facts clearly proved leading to that conclusion : Jackson v. Summerville, 13 Pa. 359; Abbey v. Dewey, 25 Pa. 413; Bentz v. Rockey, 69 Pa. 71.

It is an undisputed fact in this case that the judgment given to Winchell was for the benefit of bona fide creditors. The plaintiff claims, however, that the confession of judgment was made, not for the purpose of paying these creditors, but for the purpose of hindering others. In Werner v. Zierfuss, 162 Pa. 360, the Supreme Court say: “ If a creditor takes a judgment or conveyance or payment in any form to secure an actual debt, the transaction will be valid against other creditors, although he knew, (1) that the effect would be to postpone others, (2) that the debtor intended it to have that effect, and (3) although he took it to aid that intention as well as to protect himself. The criterion is not the effect but the fraudulent intent; without that, the fraudulent transaction cannot be impeached.”

In the case now under consideration there is absolutely no direct proof of any intent to merely delay creditors at the time of the confession of judgment. The plaintiff claims that there is such an inference from the facts proven as is sufficient to overthrow the presumption of innocence. In this the court below differed from him, and in this conclusion we see no error.

The indebtedness of the company consisted at the time of the confession of these judgments of several thousand dollars over and above the aggregate amount of the judgments confessed, together with the indebtedness due this defendant. The fact that some of the creditors whom the Medical Press Co., Limited, desired to protect did not know of the fact that judgment was being confessed to them is, in itself, no evidence of fraud. A party has a right, being insolvent, to protect upon his own motion by confession of judgment, or by payment, any one of his creditors to the exclusion of others, even without their knowledge, and while it may be, in connection with other facts in the case, sufficient to establish fraud, yet in itself it is not conclusive evidence, of fraud; and the other facts in the case, viz : that the parties had, prior to the confession of judgment, determined to create a corporation; that the trustee had no notice of the intention to confess a judgment in Ms favor; the letters written to Dr. Waugh, are insufficient to establish such a strong inference of fraud as would justify the intervention of the court below to restrain by injunction the control by the defendant of the property purchased by them from Rommel, the purchaser at the sheriff’s sale.

The judgment is affirmed.