text:
    Helms, Appellant, v. Delaware County Trust, Safe Deposit & Title Insurance Company.

      Contract — Equitable assignment — Evidence—Parol evidence.

    Where a city contractor by an instrument in writing assigns to his surety, a trust company, all moneys due him by a city for the construction of a sewer, and the writing discloses no consideration and no inducements to its execution, and it is conceded that all the money paid on it did not belong to the trust company, parol evidence is admissible to show that two persons who had indemnified the trust company for its contract of suretyship were entitled to share in the moneys under a parol agreement made with the trust company and the contractor at the time the assignment was executed. Such an assignment covers not only the moneys paid directly by the city for the construction of the sewer, but also assessments on property owners collected by the city, and paid over to the trust company.
    Argued Nov. 20, 1907.
    Appeal, No. 143, Oct. T., 1907, by plaintiff, from judgment of C. P. Delaware Co., June T., 1903, No. 273, on verdict for defendant in case of J. Bartram to the use of John B. Hannum, assignee for creditors of J. Bartram Helms, v. The Delaware County Trust, Safe Deposit & Title Insurance Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Assumpsit for moneys had and received. Before Johnson, P. J.
    The facts are stated in the opinion of the Superior Court.
    At the trial the court overruled under objection and exception plaintiff’s motion as follows:
    I move to strike out what he has said about that order of May, 1901, as to the purposes for which it was given, as not germane. The order will speak for itself. There is nothing there said about him or McDowell & Bro. or Robinson in that order. [1]
    The court charged in part as follows:
    [Did that agreement take place? If it did that was an equitable assignment to Mr. McDowell and to Daniel Robinson for whatever there should be left in the hands of the trust company after they had been paid what was necessary to reimburse them for the advances .... which they had paid out on account of Helms.] [4]
    [Did he, Helms, intend that money which should come into the hands of the trust company should be used for the payment . . for that note and for the material which they should furnish, and did he tell them at that time that that was its purpose and that he had done it? If he did this money is theirs to the extent of their bills.] [5]
    February 28, 1908:
    Verdict and judgment for plaintiff for $16.77. Plaintiff appealed.

      Errors assigned were (1) ruling on evidence, quoting the bill of exceptions; (4, 5) above instructions, quoting them.

      David F. Rose, for appellant.
   Opinion by

Henderson, J.,

J. B. Helms was a contractor with the city of Chester for the construction of a sewer. The contract called for security from the contractor for the completion of the work according to the plans and specifications and the defendant trust company undertook to become his surety. It required, however, that Helms indemnify it against liability and he procured McDowell and Robinson to sign his bond to the defendant to save it harmless on account of its suretyship. Helms needed $1,000 to be paid for labor in the execution of his contract. The trust company proposed to lend him this if McDowell and Robinson would sign a note with him. The parties met at the office of the trust company in May, 1901, at which time the trust company became surety on Helms’ contract with the city, McDowell and Robinson entered into an agreement to indemnify the trust company on its undertaking and the trust company loaned Helms $1,000 for which he gave his note with McDowell and Robinson as sureties. At the same time Helms delivered to the trust company a written order in the following form: “Chester, May 1,1901. J. Craig, Jr., Esq., Treasurer of the City of Chester. Dear Sir: I hereby authorize you to pay to the Delaware County Trust, Safe Deposit and Title Insurance Company all moneys due me by the City of Chester on a certain contract for the construction of a sewer on Fourth street west from Ridley Creek to connect with the Caldwell street sewer and any additions to said contract. This order is irrevocable. Yours respectfully, J. Bertram Helms.” The contractor proceeded with the work and during its progress McDowell and Robinson furnished material used therein to the amount of $2,006.90, of which there was due to McDowell $667.15 and to Robinson $1,339.75. Helms made an assignment to the pla’ntiff for the benefit of creditors before the work was accepted by the city and on notice from the trust company McDowell and Robinson furnished a small amount of material to complete the work. An ordinance of the city provides that the amount assessed against the owners of property for the construction of sewers shall be collected from the owners by the contractor constructing the sewer by lien or suit in the name of the city for the use of the contractor and that all liens shall be filed by the city solicitor. The contract between the city and Helms provided as follows: “the said contractor is hereby authorized to collect from each and every owner of lands abutting on the streets above specified, in front of whose lands the said sewer is constructed and against whom assessment may be made by a jury of view to be appointed by the court to make assessments for the cost of the construction of said sewer, such assessment or assessments, and the said contractor hereby agrees to accept the said assessments in payment of the cost of said sewer if the said assessments equal the cost thereof, and in part payment of the said sewer if the cost of the same is greater than the amount of the assessments, in which event, the balance of the cost of constructing said sewer over and above the amount of the assessments shall be paid to the said contractor by said city.” By virtue of the order above quoted the trust company received from ■ the city $4,060.82, the amount of the city’s share of the cost of constructing the sewer and $966 collected by the city solicitor on liens filed by him against property owners. McDowell and Robinson claim a part of this fund in satisfaction of their bills for material furnished to the contractors. Their claim is based upon the allegation that at the time they indemnified the trust company as surety for Helms and signed the note for him for $1,000 it was agreed between Helms, themselves and the president of the trust company, who was acting for the company, that the order given to the trust company for the collection of the money on the contract was, and was intended to be, security not only to the trust company but to them for their indorsements for Helms and for the bills which the latter might contract with them for material to be used in the construction of the work. They offered evidence to sustain this position and this evidence raised the question of fact which was submitted to the jury. The plaintiff denied any agreement that the order was to inure to the benefit of McDowell and Robinson and contended further that the amount collected by the city solicitor on liens against abutting property owners was not covered by the order. The order is not self-explanatory, no consideration is stated and the inducements to its execution are not recited. It is conceded that all the money paid on it did not belong to the trust company. It was competent to show by parol in whose behalf the money was to be paid to that company. It was a material inquiry whether any of it was payable to McDowell and Robinson — in other words, whether the contractor in giving the order and the trust company in accepting it agreed that the fund should be held, first, for the benefit of the trust company and, secondly, for McDowell and Robinson. The jury found upon sufficient evidence that the agreement was that the claims of thé latter should be secured. The trial judge properly overruled the plaintiff’s motion to strike out the evidence relating to the purpose for which the order was given.

There is no denial of the fact that the money received by the trust company from the city solicitor as well as that paid by the city treasurer was received by virtue of the order of May 10. The president of the trust company, who was called by the plaintiff, so testified, and no one up to the time of the completion of the contract questioned the propriety of such payment. This is corroborative of the allegation of the intervening creditors that the order was intended to cover all the payments made on account of the contract. And it is the more probable in view of the fact that the extent of the liability of the city had not been determined at the time the order was given. How much of the improvement would be assessed against the property of abutting owners could only be determined after the report of the viewers. The contract for the construction of the sewer was with the city. The city alone had authority to file a lien. The right of the contractor to proceed on the liens could only be worked out through the city ordinance and the agreement that he should look to the liens for his pay to the extent to which they would recompense him. The actions were prosecuted in the name of the city and the liability of the property owners was to the city and through it to the contractor. That the parties so interpreted the contract is shown by their conduct and this we consider the purport of the order. In any event it would be competent under the circumstances of the case to prove that the paper was intended to cover the whole fund to which the contractor would become entitled under his contract and the jury has found that such was the intention. The plaintiff’s point was properly refused.

The judgment is affirmed.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Commonwealth ex rel. v. Guarantors’ Finance Company of Philadelphia.

      Insurance — Employer’s indemnity — Securities deposited with state— Rights of policy holders — Contract—Street railway.

    Mi insurance company engaged in business of insuring employers against liability for the negligent acts of their servants, became insolvent, and the securities deposited with the insurance commissioner for the protection of policy holders, were sold. A street railway company claimed a portion of the proceeds on the theory that it was in the position of a policy holder, although it did not produce or prove any policies. It was shown that at one time the insurance company had issued policies to the railway company, and had become liable for the payment of large sums under these policies. The railway company becoming dissatisfied with the arrangement with the insurance company entered into an agreement with the latter about two years before it went into the hands of a receiver, by which the railway company took over the management of its accident claims. A definite sum was fixed, as the amount due from the insurance company, and the latter gave its bond to the railway company secured by a large number of bonds and mortgages which it had in its treasury. It was provided that if the mortgages were not as warranted, and the insurance company did not within ten days after notice substitute cash or other satisfactory security, the liquidation of the liability should be null and void. The railway company held the mortgages and did not down to the date of the receivership make any complaint that any of them were unsatisfactory. Held, that the railway company was not in the position of a policy holder entitled to share in the fund for distribution, but was merely a general creditor.
    February 28, 1908:
    Argued Nov. 22, 1907.
    Appeal, No. 5, March T., 1908, by the Union Traction Company, from order of C. P. Dauphin Co., Commonwealth Docket, 1898, No. 365, dismissing exceptions to auditor’s report in case of Commonwealth ex rel. Henry C. McCormick, Attorney General, v. Guarantors’ Finance Company of Philadelphia.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Exceptions to report of S. J. M. McCarrell and Howard W. Page, Esqs., auditors.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in dismissing exceptions to auditor’s report.

      Boyd Lee Spahr, with him Ellis Ames Ballard and Olmstead & Stamm, for appellant.

      Harry B. Gill, with him Frank George Butler and James Wilson Bayard, for appellees.
   Opinion by

Head, J.,

On April 21, 1898, as the result of a suggestion filed by the attorney general, a decree was entered by the court of common pleas of Dauphin county, finding that the Guarantors’ Finance Company had become insolvent, ordering that it be dissolved and its effects distributed and appointing receivers to wind up its business. On December 22, 1898, the same court appointed the same persons receivers for the Guarantors’ Liability Indemnity Company. After the accounts of the receivers had been presented and confirmed, auditors were appointed to make distribution. From their report it appears that the principal fund for distribution, and the only one with which we are called upon to deal, arose from the sale of securities deposited by the Guarantors’ Liability Company with the insurance commissioner of Pennsylvania, under the provisions of the Act of April 6, 1868, P. L. 65. It is agreed that these securities were, under the terms of the act, held “in trust and for the benefit of all its (the depositing company’s) policy holders.” As a consequence no creditor of such company except a policy holder with a claim fcased upon his policy, could be permitted to share in a distribution of this particular fund.

The Union Traction Company, the present appellant, appeared before the auditors and made claim to the allowance, out of the fund mentioned, of a pro rata share based on an alleged policy liability of nearly $200,000. No policies held by claimant were produced or presented, nor, except as hereinafter indicated, was any evidence offered of the existence of such policies then in force, or of the nature, extent or amount of any claims due and owing to the appellant, for the payment of which the insured, under the terms and conditions of such policies, had, prior to the decree of insolvency, become liable.

There were presented, however, two written agreements, one between appellant and the indemnity company, dated January 18, 1897; the other between the appellant, of the one part, and both the indemnity company and the finance company, of the other part, dated January 14, 1898. From the recitals of fact contained in these agreements, the appellant contended, it appeared, prima facie at least if not conclusively, that it had been the lawful holder of certain policies which had never been canceled or surrendered; that under the terms and conditions thereof the insurer had become liable for the payment of large sums; that the extent and amount of such liability had been amicably adjusted and liquidated and payment promised and apparently provided for; but that, such payment not having in fact been made, the liability remained seated upon the policies and the right of the claimant to participate, in the trust fund for policy holders, was thus established.

To the allowance of this claim objections were made by the other policy holders, whose policies and claims thereunder had been proven in the usual way. The nature of the objections, largely drawn from the agreement itself, and the force of the supporting argument, may be thus summarized. The avowed purpose of the agreement of January, 1897, and its legal effect as well, was to destroy the relation of insurer and insured which had become unsatisfactory to both parties; to procure ,a compromise and settlement of a number of claims asserted by the indemnity company against the appellant; to take out of the hands of the former and restore to the latter the management and control of the settlement or trial of claims against the traction company, based on the negligence of its servants; to fix a definite sum which the indemnity company should pay, or secure in a satisfactory manner, to close the transaction. That this agreement had been substantially executed by the indemnity company which had given its obligation, for the sum, payable at the time, agreed on; had released its claims and surrendered control as provided; had stripped its treasury of practically all of its assets — save the securities beyond its control which produced the present fund — in order to collaterally secure, to the satisfaction of appellant, the payment of its bond. That large sums had been secured by the use of these collaterals, which had been accepted and retained as a satisfactory compliance with the agreement; that the latter never contemplated that appellant could, at the same time, enforce the obligations of its policies and enjoy the fruits of the agreement, the purpose of which was to buy the surrender of the policies; that it had never undertaken to rescind or repudiate the agreement, as, in one event only, it reserved the right to do, and could not, after the insolvency, do so and restore the former relation of insurer and policy holder, to the detriment of other policy holders, and certainly not without returning the securities it had received in execution of the agreement.

The learned auditors adopted the theory thus advanced of the true construction and legal effect of the agreement of January, 1897, and denied the right of the appellant to participate in the trust fund. Exceptions were filed to their report, but they were dismissed by the Dauphin county court in an opinion filed by its president judge. We have then this appeal.

A careful study of the agreement itself and of the able briefs presented on both sides leads us all to the conclusion that the position adopted by the auditors and the learned court below is impregnable. That agreement was, in our judgment, more, very much more, than an amicable liquidation, between insurer and insured, of a liability that had arisen under a policy or policies held by the latter. The unanswerable proof of this is found in the language and terms of the instrument itself. Let us glance but briefly at some of the things that undeniably were accomplished by its execution.

It declares that the indemnity company had entered into a contract, known as Contract No. 1, with the Philadelphia Traction Company “agreeing to indemnify and save harmless the said company of and from all claims and demands of every sort and kind whatever arising from accidents happening in the construction, maintenance and operation” of its railway lines; that “certain parties interested in the management and success of Guarantors entered into a bond, in the maximum sum of $300,000.00, guaranteeing the faithful performance of said Contract No. 1;” that these parties were desirous of being released which release “ Union is willing to procure in consideration of the substitution of other securities,” therein-after provided for.

It further declared that “questions have arisen between the parties respecting certain alleged breaches of (another) Contract No. 2, by failure to keep mo tormén under bond, the Guarantors have claimed to recover certain sums of money as damages for said alleged breaches and to be thereby relieved from obligations with respect to certain of the accidents.”

It stated that “a large number of claims and suits covered by said contracts of insurance still remain pending and undetermined and the damages payable therein by the insured and for which the insurer would be liable have not been and cannot be liquidated and determined.” The management and control of all of tírese were in the hands of the indemnity-company. These were some of the perplexing conditions, filled with weighty responsibilities to both parties and pregnant with prospects of future litigation between them, that stimulated them to abolish their existing relation and substitute something else in its stead as the result of which, among other things, guarantors would have “its liability under all of said contracts of insurance liquidated, determined and discharged, and Union to have full control of its own accident business.”

After further reciting that $200,000 was the sum agreed on to be paid by guarantors, it is declared that “it is not convenient for Guarantors to pay said amount in cash upon the execution of this agreement, but it is prepared to furnish security for said payment satisfactory to Union,” but “it is impossible for Union to make an immediate examination of the mortgages included among said securities.” The long list of securities to be turned over, with the bond of $400,000 is then enumerated, after which we find this provision:

“E. The transfer of all said securities and the assignment of all said mortgages to be made simultaneously with the execution of this agreement and upon receipt of the same. Union is to satisfy or cause to be satisfied the said bond attached to Contract No. 1 and hereinbefore referred to, but the said contracts and policies of insurance are not to be surrendered or canceled until Union is satisfied that all of the mortgages hereinbefore referred to are in the condition herein described which is warranted by the Guarantors, and as soon as the mortgages are found to be as alleged all said policies and contracts of insurance shall be surrendered and canceled.

. “E. In case any of the mortgages upon investigation prove not to be as herein warranted by Guarantors then Guarantors shall have ten days within which to substitute cash or other security satisfactory to Union therefor, and if Guarantors thus •fail to satisfy Union within ten days after such notice, then the liquidation of the liability under said policies and contracts of insurance, as hereinbefore provided for (to-wit, $200,000) shall be null and void,” etc.

It is thus clear that the execution and delivery of the indemnity company’s bond and the transfer of the other enumerated securities was to produce the same effect precisely as would have followed, had the $200,000 been paid in cash: to wit: the surrender and cancellation of all policies and contracts. But it further seems clear that if some particular mortgage was not or could not, by the efforts of guarantors, be made a first lién, Union could nevertheless retain it if satisfied it possessed schedule value, or that it was better than anything else that could be secured. And if it was dissatisfied then clause “F,” above quoted, came into operation. The agreement was not to be destroyed by the failure of a mortgage to come up to representations unless notice was given to substitute cash or another satisfactory security therefor, and a ten days’ failure followed. If then, by the exercise of the optional right reserved to Union, any part of the agreement was to be destroyed, it is expressly declared to be “the agreed on liquidation of $200,000.00.”

Now the agreement was signed, presumably the securities were turned over contemporaneously, the mortgages were assigned, the individual sureties on the bond attached to Contract No. 1 were discharged and the bond satisfied; the claims of guarantors under Contract No. 2 were extinguished and abandoned; Union resumed full control of its accident business and retained it; it accepted the securities and mortgages and held them without any complaint that anyone was not satisfactory or giving to guarantors notice or opportunity “to substitute cash or other security satisfactory to Union therefor;” and it appears now standing upon and claiming under that liquidation which, by its own terms, was to “be null and void,” if the securities turned over with the bond were not accepted as satisfactory. If they were not satisfactory, and the liquidation became “null and void,” appellant had no standing before the auditors until it at least presented its policies and proved its claims thereunder like other policy holders. If the securities were acceptable — notwithstanding the fact that one of the mortgages proved not to be a first •lien — and the agreed on liquidated damages, stood, then the appellant should have complied with the law it made for itself: “And as soon as the mortgages are found to be as alleged all said policies and contracts of insurance shall be surrendered and cancelled.”

To further elaborate our reasons for the conclusion .we have reached would serve no good purpose. We think we have sufficiently indicated at least some of the obstacles, to our minds insurmountable, which stand in the way of the appellant’s effort to establish itself in the position of a policy holder with a right to share in the fund reserved for creditors of that class. Its right, as to anything that may yet be due on its bond, to share in the fund derived from the general assets of its debtor is not questioned and to that we think it must resort. The assignments of error are dismissed.

Decree affirmed.


author: Henderson, J.,

text:
    Commonwealth v. Howe, Appellant.

      Evidence — Striking out evidence — Opinion—Hearsay—Answer not responsive to question.

    Where a question, is properly propounded to a witness, but the answer is not responsive to the question, containing both matters of opinion and hearsay, the answer should be stricken out by the trial judge.
    It is only when declarations accompany a transaction so as to be wrought into it, and to emanate from it that they can be rightly regarded as excepted from the rule that excludes hearsay.

      Evidence — Reputation—Criminal law — Qualification of witness.

    Before a witness is qualified to testify in a criminal case as to the general reputation of the prisoner for chastity, it must appear that he is acquainted with the general reputation of the prisoner with respect to chastity in the neighborhood in which the prisoner resides. The mere fact that the witness heard the prisoner’s reputation discussed in a town other than that in which the prisoner resided, does not qualify the witness to testify on the subject in the absence of evidence that the prisoner was known in the place where the discussion took place, and had acquired a reputation there.

      Criminal law — Evidence—Previous good character — Good character.

    Evidence of good character is substantive evidence and not a mere makeweight introduced into a doubtful case. Such evidence may have the effect to create a reasonable doubt, and thereby produce an acquittal, and the weight to be given to it is for the jury.
    A distinct issue is not raised by evidence of good reputation, but it is to be taken into consideration with all of the other evidence against and for the accused. When the jury is satisfied beyond a reasonable doubt of the guilt of the defendant it is their duty to convict, but this conclusion is only to be reached after having given due regard to the evidence of good reputation along with the other testimony in the case.

      Criminal law — Rape—Statutory rape — Women children under the age of sixteen years.

    Under the Act of May 19, 1887, P. L. 128, enacted for the protection of women children “under the age of sixteen years,” a woman is sixteen years of age on the day before her birthday; and a man who has relations with a woman on that day, cannot be convicted of violating the act.
    The phrase “good repute” in the proviso of the Act of May 19, 1887, P. L. 128, means the general reputation for chastity of the woman in the community in which she lives. The law presumes that the woman is a person of good repute, and the commonwealth was not required to prove the fact. If she does not sustain that reputation, the defendant must show it.
    Argued Dec. 2, 1907.
    Appeal, No. 44, Jan. T., 1908, by defendant, from judgment of 0. & T. Lackawanna Co., Oct. T., 1907, No. 19, on verdict of guilty in case of Commonwealth v. Carl Howe.
    Before Rige, P. J., Porter, Henderson, Morrison, Orlady, Head, and Beaver; JJ.
    Reversed.
    Indictment for. an offense against the act of May 19, 1887.
    At the trial counsel for the commonwealth made the following offer:
    Mr. Balentine: I propose to show by the witness at this time that her clothing indicated that she had had sexual connection with this defendant or somebody had, to be followed by evidence that she had it with the defendant.
    Mr. Lewis: We object to that.
    The Court: The objection is overruled. Exception noted for the defendant at whose request a bill is sealed.
    Mr. Balentine: “Q. Describe the condition of her clothing, if there was anything unusual about them the night of May 14? A. Yes, sir; there was. Q. What was it? A. Her clothing was a sight to see; anybody could see what had been going on with that little girl.”
    Mr. Taylor: We object to the question and move that it be stricken out. 1
    The Court: Let it be stricken out.
    Mr. Balentine: “ Q. If there was anything to indicate that she had connection with anybody, will you state it? A. There was, and she admitted it.”
    Mr. Taylor: That is objected to and we move to strike out the answer.
    The Court: The objection and motion are overruled. Exception noted fór the defendant at whose request a bill is sealed.
    Mr. Balentine: “Q. Did you have any talk with her that night? A. I did. Q. On what part of her clothing did you notice these marks? A. On her underclothing.”
    Mr. Taylor: We ask to have the answer stricken out.
    The Court: Not having been objected to the motion is disallowed. Exception noted for the defendant at whose request a bill is sealed. [1]
    R. N. Dersheimer, a witness called by the commonwealth, on the stand under direct examination.
    Mr. Balentine: “Q. Mr. Dersheimer, where are you engaged in business? A. Wilkes-Barre. Q. What is your business down there? A. Bank clerk. Q. One of the trust companies? A. Yes, sir. Q. Your home is where? A. In Wilkes-Barre for two years. Q. Where was your home before that? A. In Dalton. Q. You have moved back to Dalton? A. Yes, sir. Q. Were you acquainted while you were there with the general speech of the people of the borough, the general talk of the community? A. Hardly, in two years back. Q. Before that were you? A. Yes, sir. Q. Were you familiar with the general speech of the people? A. Before that I was. Q. Before two years ago? A. Yes, sir. Q. Did you hear among other topics of discussion the reputation of Carl Howe discussed in Dalton? A. Not prior to that. Q. When did you hear it discussed, if at all? A. I haven't heard it discussed. Q. Did you never hear anything about his reputation? A. Not in a general way. Q. I am not asldng you that, I am asldng you if you have heard his reputation discussed, you say you are familiar with the speech of the people, have you heard his reputation discussed? A. I have. Q. What is his reputation for chastity in Dalton, good or bad?”
    Mr. Taylor: Objected to that the witness is not qualified.
    Mr. Balentine: “Q. What was Carl Howe’s reputation for chastity at that time? A. I didn’t know him then. Q. What was his reputation then? A. How could I tell? I didn’t know the man.”
    The Court: “Q. If he had a reputation that you learned of from the speech of the people, that is the inquiry? A. I don’t know what it is, I don’t know what it was then.”
    Mr. Balentine: “Q. Have you heard it since, anything of his reputation for chastity? A. Yes. Q. When? A. A couple of years ago. Q. What is his reputation now from what you heard then, what was his reputation then for chastity, good or bad?”
    Mr. Taylor: Objected to because the witness is not qualified.
    The Court: Objection overruled.
    The Court: “ Q. Is my understanding correct or incorrect of what you said, that in a general way two years ago you had some knowledge of the defendant’s reputation? A. I did not two years ago. Q. When was it? A. Since two years ago, within the past two years.”
    Mr. Balentine: "Q. Where were you living at that time, the time you heard his reputation discussed? A. I was living at Dorrancetown. Q. How long had you been living at Dorrancetown at that time? A. Possibly six months. Q. Previous to that where had you lived? A. Dalton. Q. How long had you lived in Dalton? A. Ten years, perhaps. Q. You were familiar in a general way up until that time with the speech of the people and the general topics of discussion in Dalton? A. Yes, sir. Q. After you moved to Dorrancetown you heard his reputation discussed? A. I did. Q. From that discussion what would you say his reputation for chastity was, good or bad? A. I should say bad.”
    Mr. Lewis: We object to this and move that it be stricken out.

      The Court: The motion to strike out is refused. Exception noted for the defendant at whose request a bill is sealed. [5]
    E. H. Fisk, called by the commonwealth, on the stand under direct examination.
    Mr. Balentine: “Q. Have you heard Carl Howe’s reputation for chastity discussed up there (LaPlume) ? A. I have a little. Q. Have you heard the reputation of Carl Howe discussed up there, his reputation for chastity, whether at Dalton or La-Plume? A. I have at Dalton.”
    Mr. Lewis: Objected to; the witness is not qualified.
    The Court: The objection is overruled. Exception is noted for the defendant at whose request a bill is sealed.
    Mr. Balentine: “Q. You say you are acquainted with the general speech of the people in Dalton? A. Yes, sir. Q. Among the things that they have talked about, have you heard the reputation of Carl Howe discussed in that borough? ”
    Mr. Lewis: Objected to.
    The Court: It has already been objected to and the objection overruled. Exception noted for the defendant at whose request a bill is sealed. [6]
    Mr. Balentine: “Q. What is his reputation for chastity in that borough? A. Not very good.”
    The court charged in part as follows:
    The evidence upon which, if found guilty, the defendant must be convicted as charged in the second count of the indictment, must convince you that he had connection with the girl at some time before she was sixteen years of age and within a period of two years prior to the date of the indictment, which would cover a period of two years back of September 9, this year, and not later than December 3, last year. [So it comes down to this, if he is found guilty it must be upon evidence that Convinces you that he had connection with the girl between December 3, last year, and September 9, 1905.] [15] It is alleged by the commonwealth that these relations began between the defendant and this girl in the spring of 1905, but that is the period that the indictment covers, the period between September 9, 1905, and December 3, 1906, a period of something upwards of a year. [So if you are satisfied beyond a reasonable doubt that he had connection with the girl between these dates, then he should be convicted as charged in that count, namely, the second count of the indictment.] [16] Evidence has been admitted tending to show the commission of the offense both before and after those dates. That was admitted for the mere purpose of throwing light upon the disputed relations of the girl and the defendant during the time covered by the indictment.
    The contention of the commonwealth is that at the age of fourteen, or thereabouts, the girl was led astray by the defendant, and that having in some way gained her consent at that time he continued to meet her frequently, and that their sexual relations continued until last May, when they were discovered. That is the contention of the commonwealth in a nut shell as undoubtedly you all understand. [There is evidence that the offense was committed frequently in 1905 and 1906, within the time that we have referred to, that is, the time covered by the indictment. I have in mind particularly the testimony of the girl in regard to her relations with the defendant during the fall of 1905, and the spring, summer and fall of 1906, down to the night before her sixteenth birthday.] [17] It may be that she was infatuated with the defendant; it may be that she practiced systematic deception upon her father; it may be that she took advantage of the father’s absence to meet the defendant. Be that as it may, if the defendant took advantage of these circumstances to have clandestine meetings with this girl and in that way led her astray, he would be guilty, for the simple reason that at that age the girl had no consent to give.
    In addition to his own denial the defendant has put in evidence some testimony with regard to a previous good character for chastity. That is evidence which he has a right to have considered by the jury. To be of any avail good reputation must be established as a fact like any other fact that is in issue in the lawsuit. Therefore, in order to enable him to ask the jury to give him the benefit of a previous good reputation for chastity he must show it by evidence that satisfies you that it existed as a fact and that he had such reputation. If it be doubtful upon the testimony of his witnesses, then it is not established as a fact, for there must be enough to warrant the jury' in finding as a matter of fact that he had such reputation before he can appeal to it and ask it to be thrown in the scale in his favor. If it be established and the jury find as a fact that he had such reputation, then it is for them to give it such weight as they in their good judgment deem it to be entitled to. [Where proof of a defendant’s guilt is convincing to a jury it is not met and overthrown by a previous good reputation, no matter how well established, but where a case is contested, where it is conflicting, a defendant has the right to have such reputation considered for what it may be worth, and it may in some instances create a reasonable doubt, but a doubtful reputation, an ambiguous and equivocal reputation would not answer for that purpose. You have a right to consider and scrutinize the testimony upon which the defendant relies in claiming a previous good reputation.
    In addition to that, you have the right, you are in duty bound to consider the counter evidence. There is evidence both ways here.] [21] There is evidence on the part of the commonwealth that would, if believed, tend to negative the inference that he did have such good reputation. So, if upon the whole evidence you are not prepared to say he had as a matter of fact a good reputation for chastity prior to the alleged offense in this case, then that falls out of the case and is not to be considered.
    I think I have already told you so that you understand that if there be a reasonable doubt in the case that doubt belongs to the defendant and he should be acquitted. But the law means a reasonable doubt when it uses that term, It does not mean a possible doubt, a fanciful doubt nor an ingenious doubt, but it means one that naturally arises out of the evidence when it is fairly and impartially considered by a fair and impartial juror. If after such fair and impartial consideration of the evidence, out of the evidence itself, and not from some other source, there be a doubt still remaining in your minds as to the defendant’s guilt, then he should be acquitted, otherwise he should be convicted.

      February 28, 1908:
    If convicted he should be found guilty as charged in the second count of the indictment, because the only alternative under the statute would be where a defendant is so indicted and acquitted of the second count, he might under certain circumstances and in a certain state of the evidence' be convicted of fornication, but that is only where the girl had a bad reputation, was a girl of bad repute. [There is no evidence here, it is not charged by the defendant at all that the girl had any bad repute in any way before the time of her alleged relations with the defendant.] [25]
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were (1,5, 6) rulings on evidence, quoting the bill of exceptions; (15-17, 21, 25) above instructions, quoting them.

      R. H. Roígate, with him Taylor & Lewis, for appellant.—
    The object of the legislature was to protect the innocence of youth, but if that innocence was already gone, there was no occasion to protect it: Commonwealth v. Davis, 3 Pa. Dist. Rep. 271.

      Joseph O’Brien, district attorney, with him Clarence Balen-tine, for appellee.
   Opinion by

Henderson, J.,

Without discussing the numerous assignments of error seriatim, we shall consider those deemed material to the determination of the case. The first relates to the refusal of the court to strike out a part of the testimony of George W. Patterson as set forth in the assignment. The question propounded to the witness was perhaps not objectionable, but the answer thereto was not legally responsive and not competent. It not only stated an opinion or conclusion of the witness as to the condition of his daughter’s clothing, but included a statement as to what she had said. If the witness had stated the facts with reference to the clothing, thereby enabling the jury to draw the inferences therefrom, the answer would have been responsive to that extent, but as it was given it presented no basis for a conclusion by the jury on the facts. A description of the condition and not the opinion of the witness was presumably what the commonwealth intended to introduce and the answer resulted, probably, from the. misapprehension by the witness of the legal purport of the question. The record does not present any fact which made competent that part of the answer relating to the admission made by the daughter of the witness. It does not even pretend to be a recital of her language, but whether intended as a repetition of what she said or as the opinion of the witness as to the meaning of her language it was not competent. It related to a transaction not charged in the indictment and was not concomitant with the act to which the declaration referred. How long after the occurrence, shown by the commonwealth to have taken place on May 14, the alleged declaration was made does not appear. It was evidently a considerable time thereafter and the declaration did not spring from the act. It is only when the declarations accompany the transaction so as to be wrought into it and to emanate from it that they can be rightly regarded as excepted from the rule that excludes hearsay: Whar. Crim. Ev. (9th ed.) sec. 262. The motion to strike out this evidence should have been allowed.

The defendant introduced evidence to sustain his general reputation for chastity, to which the commonwealth replied by calling several witnesses, one of whom was R. N. Dersheimer. His testimony was objected to on the ground that he had not knowledge that qualified him to speak on the subject. The defendant lived in the borough of La. Plume. The witness had been a resident for a number of years of the borough of Dalton, near La Plume, but had moved to Dorrancetown. About six months after he moved to Dorrancetown he heard the reputation of the defendant discussed. The witness was then asked: “Q. From that discussion what would you say his reputation for chastity was, good or bad? A. I should say bad.” It was not shown by the witness that the defendant was so generally known in Dalton as to have a reputation there. On the contrary, the witness did not know the defendant in Dalton and never heard his reputation discussed in that borough; nor did it appear from his examination that he was acquainted with the general reputation of the defendant for chastity anywhere. That he heard the subject “discussed”' at Dorrancetown neither created a reputation nor qualified the witness to speak of it in the absence of evidence that the defendant was known in the latter place and had acquired a reputation there. It does not follow that one has a reputation which may be the subject of evidence because a witness has heard it discussed. A discussion may be engaged in by one person, but it will not be pretended that a reputation in a legal sense, good or bad, could thereby be created. The general reputation of the defendant was involved, not what some particular individual may have said of him: Kimmel v. Kimmel, 3 S. & R. 336. There are probably few persons in any community against whom disparaging remarks are not made by someone, but these do not make a general reputation. In Wike v. Lightner, 11 S. & R. 198, it was said “the question is, what is said by people in general? That is the true point of inquiry, and everything which stops short of it, is incorrect.” Before the witness is qualified to speak it must appear that he is acquainted with the general reputation of the person with respect to the particular character involved, in the neighborhood in which he resides. If it appear that he has this knowledge he is competent to testify concerning it; otherwise, not. This course of inquiry was said by Judge Thompson in Bogle’s Executors v. Kreitzer, 46 Pa. 465, to have acquired the binding force of a rule: Whar. Crim. Ev. (9th ed.) sec. 487; United States v. Vansickle, 2 McLean, 219; State v. Randolph, 24 Conn. 363; Bucklin v. State, 20 Ohio, 18; People v. Mather, 4 Wend. 229; Cheritree v. Roggen, 67 Barb. 124; Kelley v. Proctor, 41 N. H. 139. Persons of blameless lives are not ordinarily subject to hostile criticism and a good reputation may be shown by the evidence of witnesses that they have never heard the character of the person spoken against, as well as by affirmative evidence of the favorable speech of the people of the vicinity; but a bad reputation is only shown by evidence of adverse comment on the person’s conduct by the people generally in the neighborhood where he lives. It is necessarily implied that the person inquired about should have been so related to the community in which he lived or acted as to have established a general reputation. The authorities show that the witness was not qualified to testify on the subject of reputation'and the defendant’s objection to his competency should have been sustained, and the evidence having been admitted the motion to strike out should have been granted. The fifth assignment is sustained.

A similar objection was made to the evidence of E. H. Fisk, a witness called for the commonwealth in rebuttal on the subject of reputation. Mr. Fisk lived in the borough of Dalton, about two miles from where the defendant lived in the borough of La Plume. He was not acquainted with the reputation of the defendant in the borough of La Plume. He had heard it discussed at Dalton. Who discussed it and to what extent was not disclosed by his testimony. Whether the defendant was generally known in the borough of Dalton does not appear. The witness was not asked whether he was acquainted with the general reputation for chastity of the defendant in the place where he lived; nor did he state that he knew his general reputation anywhere. The difficulty of getting a character witness to understand the distinction between his own opinion of the person inquired about and the reputation which he sustains among the people of his own neighborhood makes it important that the examination should be so conducted that the opinion, sometimes prejudiced, of the witness should not be made a substitute for the general reputation which alone is competent in such an investigation, and the propriety of the rule is well illustrated by the course of examination adopted when this witness and Mr. Dersheimer testified. The same reasons which prevail against the qualification of the latter exclude the former and sustain the sixth assignment.

The sixteenth anniversary of the birth of Madeline Patterson occurred December 3, 1906. Evidence was offered by the commonwealth showing illicit relations between her and the defendant on the night of December 2, 1906, and the court charged the jury that the defendant might be convicted if he had such relation with the girl between December 3, 1906, and September 9,1905. The defendant contends that Madeline Patterson was sixteen years of age on December 2,1906. The prosecution was brought under the Act of May 19,1887, P. L., 128. The persons protected by that act are women children under the age of sixteen years.” The 15th, 16th and 17th assignments of error present the question, when was Madeline Patterson sixteen years of age? Numerous authorities hold that a minor attains his majority on the day preceding the twenty-first anniversary of his birth, or on the day preceding the anniversary of birth where a maj ority is fixed by statute at another age. On that day he may execute a deed or make a will or vote as an elector. If an apprentice, his term of service expires that day and, generally speaking, he may perform all the acts of which he is capable after he has passed his majority, and, as the law recognizes no fractions of a day, this ability exists during the whole of the day preceding the anniversary of birth. In Bardwell v. Purrington, 107 Mass. 419, it was decided that a person who was born on the eighth day of September, 1852, would become of the full age of twenty-one years if he should live to the seventh day of that month in 1873. To the same effect are Wells v. Wells, 6 Ind. 447; State v. Clarke, 3 Harr. 557; Hamlin v. Stevenson, 4 Dana, 597; Ross v. Morrow, 85 Texas, 172. Where a statute provided that as to defendants between the ages of nine and thirteen years the burden of proof was on the state to show accountability for crime, the defendant was held to have been thirteen years of age the day preceding the anniversary of his birth: Linhart v. State 33 Texas Cr. App. 504. This decision is an exact authority in support of the appellant’s position. In Griffiths’s Case, 1 Kulp, 157, it was held that one who voted on the day preceding the twenty-first anniversary of his birth was a qualified elector. The same rule is stated in FitzHugh v. Dennington, 6 Mod. 259; 1 Blackstone’s Com. 463; 2 Kent’s Com. 233; 1 Jarman on Wills (6th ed.), 35. Our attention has not been called to, nor have we found, any case holding a contrary doctrine. The subject is discussed in 1 Minor’s Inst. 514, and in a comment thereon by Proféssor Lile in his notes, in both of which the contrary view is taken, but the latter author concedes that the authorities have been against his view for 200 years and that it does not seem possible to shake them. Such being the state of the law it is reasonable to assume that the act of 1887 was passed with reference thereto and that it was the purpose to fix the age of consent with regard to a particular day rather than the hour of the birth of the person concerned. In legal intendment Madeline Patterson was sixteen years of age on December 2, 1906. It follows that (that part of the instruction of the court which permitted the jury to convict the defendant for any act committed on December 2 was erroneous. The 15th, 16th and 17th assignments are sustained.

The 21st assignment relates to the charge of the court on the subject of the defendant’s evidence of good reputation. We think the jury may have been misled by the language of the learned trial judge. It was in effect that if the jury was convinced by the other evidence in the case that the defendant was guilty then evidence of a previous good reputation, no matter how well established, would not overcome the case presented by the commonwealth, but that where a case is conflicting the defendant had the right to have his reputation considered for what it may be worth. It is now a well-established proposition that evidence of good character is substantive evidence and not a mere makeweight introduced into a doubtful case. Such evidence may have the effect to create a reasonable doubt and thereby produce an acquittal, and the weight to be given to it is for tfie jury. It might be that a defendant confronted by very persuasive evidence of a criminating character could present evidence of good reputation of such force that it alone would produce such an impression of improbability as to the crime charged that doubt would arise in the minds of the jurors and an acquittal follow. A good reputation is a substantive fact, like any other, tending to establish the defendant’s innocence: Heine v. Com., 91 Pa. 145; Hanney v. Com., 116 Pa. 322. It is true that where an indubitable case has been made out against the defendant his reputation for good character will not avail, but that may be said of any other evidence introduced in his behalf, however positive and direct it may have been, as was remarked by Judge Gordon in the case last cited. In a doubtful case the defendant is entitled to an acquittal because of the failure of the commonwealth to make out a conclusive case, and he does not need evidence of good character to help him out. If such evidence is only to be taken into consideration when the case is doubtful it is to destroy its value altogether. The accused has a right to appeal to the jury on evidence of his good reputation, even against the most damaging testimony, and of its value the jury are the sole judges. In Hanney v. Com., 116 Pa. 322, the court charged the jury, “ If you believe that the testimony in this case clearly points out the guilt of John Hanney, then his previous good character should have no weight in determining the question of his guilt or innocence.” There was the further instruction that if the jury considered the case of the commonwealth a weak one, though sufficient for conviction, the testimony of good character ought to raise a reasonable doubt which would inure to the acquittal of the defendant. Of this instruction the Supreme Court held that even where the defendant’s guilt was clearly established by other evidence it would be error to instruct the jury to disregard that of good character, for it was for them to determine what effect such evidence would have in connection with what was presented by the commonwealth. Com. v. Eckerd, 174 Pa. 137, and Com. v. Harmon, 199 Pa. 521, do not qualify these adjudications. In each of the cases the jury was instructed that evidence of good character was positive and important testimony and not a mere makeweight and was to be taken into consideration with all the other evidence in determining the defendant’s guilt. A distinct issue is not raised by evidence of good reputation, but is to be taken into consideration with all of the other evidence against and for the accused. When the jury is satisfied beyond a reasonable doubt of the guilt of the defendant it is their duty to convict, but this conclusion is only to be reached after having given due regard to the evidence of good reputation along with the other' testimony in the case. The instruction of the learned trial judge is so similar to that reviewed in Hanney v. Com., 116 Pa. 322 that we feel constrained to sustain this assignment of error.

The 25th assignment criticises the instruction of the court to the jury that there was no evidence that the girl was a person of bad repute. The contention of the appellant’s counsel is that the phrase “ good repute ” in the proviso of the statute is synonymous with “ good character, ” and that the words refer not to what the person is reputed to be, but to what he really is. If the statute named “character” instead of “repute” there would be a basis for the appellant’s argument. The critical distinction between character and reputation is well known; one term representing the combination of qualities or peculiarities which compose one’s mental traits and constitute his ethical individuality, while reputation is reported or attributed character — the estimate attached to a person by the community. This distinction has not been observed generally in the statutes and decisions of the courts, however, and many cases in this state show that “character” and “reputation” are used interchangeably. In Kimmel v. Kimmel, 3 S. & R. 336 it is said that “character” is a term convertible with “ common report, ” and in the same case Judge Duncan said, “Character and reputation are the same. The reputation which a man has in society is his character.” In Wike v. Lightner, 11 S. & R. 198, Chief Justice Tilghman expressed the same thought in these words: “In order to discredit a witness you can examine only to his general character.” Similar expressions in the same opinion show plainly that character was used in the sense of reputation. The same forms of expression appear in Bogle’s Executors v. Kreitzer, 46 Pa. 465; Hanney v. Com., 116 Pa. 322; Heine v. Com., 91 Pa. 145, and other cases. There is much support, therefore, for the position that if the word were “ character ” it should be -understood to mean imputed rather than actual character, but we need not go so far, for the expression is “repute.” This means character attributed; public estimate; established opinion; reputation. Such was the interpretation placed upon the same language in the forty-first section of the act of March 31, 1860. That section made the seduction of a female of good repute under twenty-one years of age, under promise of marriage, a misdemeanor. In Oliver v. Com., 101 Pa. 215, the court held the words “good repute” to be equivalent to good reputation, and that in a trial on an indictment under that act the burden was on the commonwealth to prove that the woman offended against was a person of good reputation for chastity. This interpretation is in harmony with the definitions of the word and we see no reason why it is not strictly applicable here. The “repute” at issue was the general reputation for chastity of Madeline Patterson in the community in which she lived. Her acts of unchastity prior to the time covered by the indictment, disclosed by her own admissions, were not evidence that she was not of good repute for chastity. The law presumes that she was a person of good repute and the commonwealth is not required to prove the fact. If she did not' sustain that reputation the defendant must show it: Com. v. Allen, 135 Pa. 483. The court was not in error, therefore, in charging as set forth in the 25th assignment.

No exceptions were taken to support the 7th, 8th, 9th, 11th and 12th assignments and the questions presented are not properly before us for determination. The other assignments are not sustained.

The judgment is reversed and a new venire awarded.


text:
    Horne v. Welsh, Appellant.

      Arbitration — Revocation—Seal.
    An agreement in writing under seal to arbitrate, can only be revoked by a writing under seal. The formality of the revocation must follow and conform to the formality of the submission.
    Argued Nov. 20, 1907.
    Appeal, No. 61, Oct. T., 1907, by defendant, from order of C. P. Bucks Co., Nov. T., 1906, No. 10, discharging rule to strike off award of arbitrators in case of William Horne v. James J. Walsh.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    February 28, 1908:
    Affirmed.
    Rule to strike off award of arbitrators.
    The opinion of the Superior Court states the case.

      Error assigned was the order of the court discharging rule to strike off award.

      John L. Dubois, for appellant.
    — The agreement to refer, in question, was revoked by serving a written notice upon each of the three arbitrators before the award was signed, or the nature or amount of award was determined: Dickerson v. Rorke, 30 Pa. 390; Shisler v. Keavy, 75 Pa. 79; Paist v. Caldwell, 75 Pa. 161.
    A submission, whether by deed, parole or rule of court, like any other naked authority, is countermandable before the execution of it, though expressed to be irrevocable: Power v. Power, 7 Watts, 205; Lewis’s App., 91 Pa. 359; Williams v. Tracey, 95 Pa. 308; Buckwalter v. Russell, 119 Pa. 495; Mc-Kenna v. Lyle, 155 Pa. 599.

      Wm. C. Ryan, for appellee.
    — A submission to arbitrators, as to the arbitrators, is a power. When it is under seal the revocation must also be under seal: Van Antwerp v. Stewart, 8 Johnson (N. Y.), 125; Brown v. Leavitt, 26 Maine, 251; Wallis v. Carpenter, 95 Mass. 19.
   Opinion by

Head, J.,

On October 18, 1906, the plaintiff and defendant executed, under their respective hands and seals, an agreement in writing providing, inter alia, that an amicable action be entered in the court of common pleas of Bucks county, and that, without the filing of declaration or plea, “all matters in controversy between the above-named parties, be submitted and referred to” certain persons named as arbitrators. It fixed ¿he time and place of their meeting, provided that an award made and signed by them or a majority of them “shall be final, conclusive and without certiorari, writ of error or appeal. That the award should-be entered as a judgment, should carry-costs and that no court should have power to hear any exceptions to the proceedings, the award of judgment.”

The arbitrators met at the time and place named and both of the parties appeared and submitted their respective claims. We learn from the opinion of the learned court below that plaintiff’s account consisted of “fifty-five items, of which nineteen were disputed; the defendant’s of thirty-eight items, of which ten were disputed. The disputed items were not passed upon that day. The arbitrators adjourned, at the-request of the defendant, to Saturday, the 20th, giving each party opportunity to bring in anything else they might have. The plaintiff appeared (at the adjourned meeting) but the defendant did not. The meeting was a short one. The arbitrators then adjourned to meet again on the 26th to pass upon the disputed items and make up the award.” On the evening of the 25th the defendant notified the arbitrators, by a writing which was not under seal, that he revoked the submission. Notwithstanding this notice the arbitrators met the next day, considered the disputed items and made up their award which was signed by two of them. The award was entered as a judgment in the prothonotary’s office, as the agreement provided, and an execution issued. Thereupon a rule to strike off the award was obtained, but the court, after argument, discharged the rule, holding that the agreement was not a mere naked submission, but a contract, founded upon mutual considerations, and therefore irrevocable; and that the written notice served on the arbitrators, not being under seal, was ineffectual to work a revocation of the submission.

Whilst the right of either party to a naked submission, to revoke it at any time before an award is made, has been recognized from the earliest times, side by side with it there has run another principle, thus well stated in Morse on Arbitration and Award, 232: “The formality of the revocation must follow and conform to the formality of the submission. Thus, if the submission be under seal, so also must be the revocation; if the submission be in writing, the revocation must be written; but if the submission be only verbal, then the revocation may be verbal also.” In a note by Mr. Chitty on the subject, 3 Bl. Com. 16, he thus states the rule: “The parties themselves may revoke the arbitrators’ authority before the award is made: the revocation must follow the nature of the submission: if the latter be by parol so may the revocation : 2 Keb. 64. If the submission be by deed, so must the revocation: 8 Co. 72.” In 2 Am. & Eng. Ency. Law (2d ed.), 599, many cases from the highest courts of a number of different states, including New York and Massachusetts, are cited in support of the proposition that “a written submission requires a written revocation; a submission under seal can only be revoked under seal.” We have been referred to no case in Pennsylvania which in any degree contravenes this ancient and widely recognized rule. In Dickerson v. Rorke, 30 Pa. 390, the submission was by a writing not under seal. It was there said by Lowrie, C. J., that “where a submission is in writing, it cannot be directly revoked except by a written instrument given to the arbitrators or a majority of them.” We cannot well avoid the conclusion that this was a recognition and application of the rule in so far as the facts of that case called for its application. We see no reason, therefore, why this case should mark a departure from a long and unbroken line of precedents. Submissions of disputes to arbitrators are favored by the law and approved by the enlightened sentiment of the world at large. But an attempted revocation, after a solemn submission, after the work of the arbitrators has been entirely or nearly completed and when the award is about to be announced is not, as was said in Mitchell v. Newman, 4 Penny-packer, 443, “entitled to much favor. It cannot be asserted except under a clear claim of right.”

We discover here no such claim and hence we dismiss all the assignments of error. The order discharging the rule to strike off the award is affirmed and the appeal dismissed at the costs of appellant.


author: Per Curiam,

text:
    McMunigal v. Ingram, Appellant.

      Liquor law — Wholesalers—Bottlers—Statutes—Act of April 25, 1907, P. L. 122.
    The Act of April 25, 1907, P. L. 122, giving wholesale liquor dealers the rights and privileges of bottlers, applies only to such dealers as were licensed after the passage of the act.
    Argued Nov. 21, 1907.
    Appeal, No. 158, Oct. T., 1907, by defendant, from judgment of C. P. Delaware Co., June T., 1907, No. 80, on case stated in suit of John McMunigal v. Harry G. Ingram.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Case stated to determine liability on a contract.
    The case stated was as follows:
    1. The defendant, Harry G. Ingram, holds a bottler’s license issued to him by the court of quarter sessions of the peace in and for said county, and is duly authorized and engaged in the business of bottling by purchasing malt or brewed liquors in kegs, barrels or otherwise in bulk and transferring the same into bottles or smaller packages and selling the same in such bottles or smaller packages in the quantities and under the limitations allowed by law, and has duly paid the annual license fee required of such dealers in the city of Chester, in which his said business is conducted.
    2. The said plaintiff, John McMunigal, in like manner holds a wholesale liquor seller and dealer license and is a wholesale liquor seller and dealer and was licensed by the said court of quarter sessions to sell vinous, spirituous, malt or brewed liquors at wholesale for one year from the first Monday of January, 1907, at his place of business in the second ward of the city of Chester, in said county, and has duly paid his license fee therefor and is authorized by law to carry on his'said business.
    3. On or about January 7, 1907, the said plaintiff and defendant entered into an agreement for a good, sufficient and valuable consideration, that the said John McMunigal should and would purchase and buy of and from the said Harry G. Ingram certain malt and brewed liquors-.bottled by the said Ingram, and that he, the said Ingram, should deliver the same to the said MeMunigal in the quantities called for by said contract until such time as that he, the said MeMunigal should have and enjoy the right to purchase vinous, spirituous; malt or brewed liquors in kegs, barrels, or otherwise in bulk, and to transfer the same into bottles or smaller packages and to sell and dispose of the same in such bottles or smaller packages, vinous or spirituous liquors in quantities not less than one quart, and malt or brewed liquors in quantities not less than twelve pint bottles, and none of such liquors to be sold to be drunk upon the premises or in any other place provided for such purpose by the vendor, it being further agreed between the said parties hereto that upon failure to comply with the agreement aforesaid the party so in default should pay to the other the sum of $125 as damages fairly liquidated and ascertained by the parties for such default.
    4. On May 10, 1907, in pursuance of and in full accordance with the contract aforesaid, the said John MeMunigal made demand of and on the said Ingram to have delivered to him malt or brewed liquors in bottles, as called for by said contract, with which demand the said Ingram refused to comply, on the ground and for the reason that the act of assembly, a copy of which is annexed hereto and made a part of this case stated, had before that time become a law of said commonwealth and under said act of assembly the said John MeMunigal had and enjoyed a right to purchase vinous, spirituous, malt or brewed liquors in kegs, barrels or otherwise in bulk, and to transfer the same into bottles or smaller packages and to sell and dispose of the same in such bottles or smaller packages and that thereby the agreement aforesaid between said parties had come to an end and the said Ingram was no longer bound thereby. The said MeMunigal thereupon demanded of the said Ingram the said sum of $125, claiming that said act of assembly did not give him the right to bottle as claimed by said' defendant, which demand and payment the said Ingram thereupon refused.
    The court entered judgment for plaintiff on the case stated.

      February 28, 1907:

      Error assigned was the judgment of the court.

      O. B. Dickinson, for appellant,
    cited: Elbert v. Lowenstein, 58 N. Y. Supp. 889; Kelly v. Owen, 74 U. S. 496; Plum v. Fond du Lac, 8 N. W. Repr. 283; Mason v. Heyward, 5 Minn. 74; Forbes v. State, 43 Atl. Repr. 626; Outcalt v. Outcalt, 8 Atl. Repr. 532; Reg. v. Christ Church, 12 Q. B. 149; Fitzpatrick v. Simonson Bros. Mfg. Co., 90 N. W. Repr. 378; Grimes v. Byrne, 2 Minn. 89; Maysville & L. R. R. Co. v. Herrick, 76 Ky. 122; Clapp v. Sherman, 14 R. I. 299; Com. v. Dracut, 74 Mass. 455; Commonwealth v. Jones, 10 Pa. C. C. Rep. 611; Commonwealth v. Sellers, 130 Pa. 32; Commonwealth v. Donahue, 149 Pa. 104.
    No book for appellee.
   Per Curiam,

We all are of opinion that the learned court below properly construed the Act of April 25,1907, P. L. 122, as applying only to wholesale liquor sellers and dealers who should be licensed after its enactment. As shown by the opinion filed, this conclusion accords more fully with the grammatical construction of the language used than does that contended for by the appellant’s counsel; and it is supported by the weightier argument that it harmonizes the act with the general system of laws of which it forms a part. Under the other construction a person licensed as a wholesaler at the date of the approval of the act became invested at. once with the privileges conferred by a bottler’s license without having submitted an application for a license conferring those privileges to the discretion of the court of quarter sessions and (if he was licensed in a borough or township) without paying the increased license fee, which, in view of the additional privileges that a wholesale license will give, the legislature has provided shall be paid by the grantee of such license. Doubtless the legislature had power to give the statute this retroactive effect upon licenses already issued, but an intention so to do is not to be imputed where the words used to express the legislative intent are perfectly consistent with the conclusion that the act was intended to operate prospectively only. It is true it was held in Commonwealth v. Donahue, 149 Pa. 104, that the provision in the act of June 9, 1891, prohibiting wholesale dealers from selling brewed or malt liquors in less quantities than twelve pint bottles, and from permitting liquor to be drunk on the premises where sold, applied to dealers licensed before the passage of the act. But the words of that act include all wholesale dealers and left no room for supposition that the prohibition was to apply only to wholesale dealers thereafter licensed; whereas in this act the words are not only susceptible of, but plainly suggest, the construction which restricts the enlargement of privileges to future licensees.

The judgment is affirmed.


text:
    Woodroffe, Appellant, v. Hagerty.

      Equity — Nuisance—Injunction—Jurisdiction—Remedy at law — Disputed right.

    The remedy at law for a private nuisance is general. Equity also has jurisdiction to restrain the continuance of such nuisance if the rights of a suitor are clear and certain; but an injunction will not be granted until the facts are established by the verdict of a jury, if they are disputed.
    A bill in equity cannot be maintained by a landowner against an adjoining landowner and the supervisors of the township to restrain the defendants from diverting water from a public highway onto the plaintiff’s land, where the evidence as to the respective rights of the two owners is wholly contradictory. In such a case the plaintiff must establish his right at law before he can have the aid of a court of equity. '
    Argued Dec. 6, 1907.
    Appeal, No. 190, Oct. T., 1907, by plaintiff, from decree of C. P. Montgomery Co., March T., 1907, No. 2, dismissing bill in equity in case of Woodroffe v. Solomon S. Hagerty et al., Supervisors of Horsham Twp., and Sophia H. Greaves.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.

      February 22, 1908:
    Bill in equity for an injunction. Before Weand, J.
    The opinion of the Superior Court states the case.

      Error assigned was decree of the court dismissing the bill.

      Henry Freedley, for appellant.
    — The court has found all the facts in the case at bar and without difficulty and these findings are acceptable to both parties. In view 'of this the ease would seem to be ruled by Sullivan v. Steel Co., 208 Pa. 549.
    The following cases also sustain our contention: Scheetz’s App., 35 Pa. 88; Denny v. Brunson, 29 Pa. 382; Stewart’s App., 56 Pa. 413; Com. v. R. R. Co., 24 Pa. 159; Masson’s App., 70 Pa. 26; Allison’s App., 77 Pa. 221; Walters v. McElroy, 151 Pa. 549; McCormick v. Kinsey, 10 Pa. Superior Ct. 607.
    It is a familiar principle of law that a person specially damaged can maintain a bill to abate a public nuisance: Sparhawk v. Union Passenger Railway Co., 54 Pa. 401; Keppel v. Lehigh Coal & Nav. Co., 200 Pa. 649; Riley v. Penna. Co., 32 Pa. Superior Ct. 579.

      N. H. Larzelere, with him Charles J. McAvoy, for appellees.—
    The case we think comes within that class ruled by Mowday v. Moore, 133 Pa. 598; New Castle v. Raney, 130 Pa. 546; Rhea v. Forsyth, 37 Pa. 503.
   Opinion by

Henderson, J.,

The plaintiff seeks to enjoin the defendants from diverting water from a public highway on to his land. One of the defendants, Sophia Greaves, is the owner of land adjoining the plaintiff’s. The other defendants are supervisors of Horsham township. A material averment of the bill is that the land in that vicinity slopes eastwardly and that the natural drainage is from the complainant’s land on to the land of Mrs. Greaves. Another is that the drainage of the northwest side of the Three Tuns Road was on to the northeast side of the Meeting House Road and thence across the latter road by underground pipes or sluices through which the water was discharged over the land of Mrs. Greaves through a ditch. Another averment is that the supervisors of the township cut a ditch along the Meeting House Road in front of the Greaves property and the property of the complainant to carry off the water flowing through the pipes or sluices referred to, as a result of which the complainant’s land was compelled to carry four times the quantity of water that was formerly discharged over it, whereby his land was overflowed and the stability of some of his buildings threatened. The prayers of the bill are: first, that Sophia Greaves be enjoined from obstructing or interfering with the flow of water as heretofore through the ditch upon her land; second, that the defendant supervisors be enjoined from maintaining the trench dug by them along the Meeting House Road; third, that the supervisors be decreed to fill that trench and otherwise to adjust their drains so that the water shall flow over the land of Sophia Greaves. The plaintiff’s case rests on the truth of the allegations referred to. They involved questions of fact which he was required to establish. For this purpose he called numerous witnesses whose evidence tends to support the charge contained in the bill. Sophia Greaves by her answer denied these allegations and the supervisors by their answer neither admitting nor denying demanded proof of the same. Evidence was presented which contradicted the complainant’s claims and tended to show that the natural drainage from Mrs. Greaves’ property is along the Meeting House Road on to the complainant’s property; that the water carried through the pipes opposite the Greaves property did not flow on to the Greaves land except when turned there temporarily at times by the husband of Mrs. Greaves or in the case of an overflow during a heavy rain and that the natural course of the water was along the side of the road into the stream at the complainant’s land. A further fact in the case about which there was no dispute was that the Meeting House Road in this locality was improved by the state under the Act of May 1, 1905, P. L. 318, and that in the course of its construction a culvert or drain was made substantially in the same place where the pipes were located in front of the Greaves property and a ditch was cut of a depth of about three feet and extending about 100 feet through the Greaves property to a place where. the descent of the ground permitted the water to flow away. This ditch Mrs. Greaves filled up soon after it was opened and, as is claimed by the supervisors, before the road was turned over to them. The learned trial judge did not find the facts relating to the allegation that the water had flowed on to the Greaves land before the state road was constructed, but stated the substance of the testimony of the respective sides. It was not determined, therefore, whether the complainant’s averment that water was diverted on to his land which had not been flowing there before was true or not. And if the court had found the facts in favor of the plaintiff we think the complainant must still have been remitted to his action at law to establish his right in the first instance, for if the fact be, as asserted by the witnesses for the defense, that the water continues to flow along its natural course or where it has been accustomed to flow, at the side of the Meeting House Road on to the complainant’s land, he has not been injured by anything which Mrs. Greaves or the supervisors did. He could only have standing, if at all, to complain of the present construction of the road on the ground that that construction subjected his land to a burden which it had not theretofore borne. He seeks to abate a nuisance the existence of which has neither been admitted nor established by an action at law. The remedy at law for a private nuisance is general. Equity also has jurisdiction to restrain the continuance of such nuisance if the rights of a suitor are clear and certain. But it is a well-settled doctrine that an injunction should not be granted until the facts are established by the verdict of a jury, if they are disputed: Rhea v. Forsyth, 37 Pa. 503; Mowday v. Moore, 133 Pa. 598; O’Neil v. McKeesport, 201 Pa. 386; Scanlin v. Conshohocken Boro., 209 Pa. 48; Adams Eq. *211. The learned counsel for the appellant while conceding this to be the law contends that the complainant’s case is made out beyond controversy, but we cannot concur in this view of the case. The evidence of several of the defendants’ witnesses might well lead one to believe that the plaintiff’s land is not subjected to any flow of water which did not exist before the acts charged against the defendants were committed, and if so he has no cause of complaint. If as shown by evidence of the defendants a ditch existed along the side of the Meeting House Road and the action of the supervisors was merely to clean it out and restore it to its original condition they were clearly not offending against any right of the complainant. He cannot insist that the land of Mrs. Greaves be subjected to a new servitude in relief of his own land, nor does his bill assert any such claim. His right to a decree is circumscribed by the facts averred and these are all grouped around the main proposition that he is injured by an increased volume of water discharged upon his property. If the fact were established that the acts of the defendants produced the result which the plaintiff claims we would then be brought to a consideration of the power of the supervisors in the premises and the limitation of their authority said to have been brought about by the act of May 1, 1905; but we agree with the learned judge that these questions do not now arise.

The decree is affirmed without prejudice to the right of the plaintiff to proceed at law.


text:
    Commonwealth v. Darmska.

      Constitutional law — Title of act — Appointment of counsel in murder cases — Compensation—Payment by county — Act of March 22, 1907, P. L. 31.
    The Act of March 22, 1907, P. L. 31, entitled “An Act to provide for the assignment of counsel in murder eases, and for the allowance of expenses and compensation in such cases,” does not violate sec. 3, article III of the constitution, and its title sufficiently shows that the expenses and compensation referred to in the act are to be paid out of the county treasury.
    There is no force in the objection that the title of the act is ambiguous in that it contains no notice as to whether the assignment of counsel is to be in aid of the prosecution or defense.
    Argued Dec. 11, 1907.
    Appeal, No. 215, Oct. T., 1907, by City of Philadelphia, from order of O. & T. Phila. Co., July T., 1907, No. 287, overruling demurrer to petition for allowance of fees under Act of March 22, 1907, P. L. 31, in case of Commonwealth v. Josephine Darmska.
    February 28, 1908:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Petition for allowance of fees for professional services in a murder trial, provided by the Act of March 22,1907, P. L. 31.
    The city and county of Philadelphia demurred to the petition.
    The court in an opinion by Yon Moschzisker, J., in which Magill, J., concurred, overruled the demurrer. Wiltbank, J., filed an opinion setting forth a contrary view.

      Error assigned was the order of the court.

      Thomas D. Finletter, with him J. Howard Gendell, for appellant.
    — The title does not indicate that the county was to pay the compensation and expenses. This is a fatal omission and renders the act invalid: Wayne County v. Waller, 90 Pa. 99; Com. v. Ramuno, 16 Pa. Dist. Rep. 449; Dorsey’s App., 72 Pa. 192; Dailey v. Potter County, 203 Pa. 593; Ridge Ave. Pass. Ry. Co. v. Philadelphia, 124 Pa. 219.

      Owen J. Roberts, with him Henry 8. Drinker, Jr., for appellee.
    —The act is constitutional: Com. v. Rapid Transit Street Ry. Co., 219 Pa. 11; Hays v. Cumberland County, 5 Pa. Superior Ct. 159; Baker v. Warren County, 11 Pa. Superior Ct. 170; Read v. Clearfield County, 12 Pa. Superior Ct. 419; Williams v. Northumberland County, 110 Pa. 48.
   Opinion by

Henderson, J.,

This appeal presents for our consideration the constitutionality of the Act of March 22, 1907, P. L. 31. The objection urged is that the subject of the statute is not clearly expressed in its title as required by sec. 3 of article III of the constitution. The title is “An act to provide for the assignment of counsel in murder cases, and for the allowance of expenses and compensation in such cases.” In examining the question we are to have in mind the well-known principle that an act of assembly is only to be declared void when it violates the constitution clearly, plainly and in such a manner as to leave no doubt or hesitation. It must be manifest that the legislative department has overstepped the boundaries marked by the constitution before the courts are justified in nullifying a statute. The legislature comes directly from the people and by its enactment gives expression to the popular will. This will so expressed is the law of the land except where the constitution unquestionably forbids it. The reason for the constitutional provision in question is apparent. It was intended to prevent the incorporation into one bill of legislation on distinct and unrelated subjects. Its purpose is well stated in Road in Phœnixville, 109 Pa. 44. It is just as apparent that it was not the intention that the title should be an index to the contents of the bill. What is required is that the title fairly give such notice of the subject of the act as should lead to an inquiry into its details. Where the title is not deceptive and relates to one subject and is sufficient to put those interested on inquiry as to the contents of the bill the demand of the constitution is met, even though the various provisions by which the object of the bill is to be attained are not indicated in the title. A recent admonition from the Supreme Court in Com. v. Rapid Transit Street Ry. Co., 219 Pa. 11, indicates the true spirit of the constitutional requirement and suggests that brevity which does not mislead should be aimed at in the construction of titles of statutes. Such a title, though general, will cover all details and collateral matters naturally and properly incident to the subject: Stegmaier v. Jones, 203 Pa. 47. What, then, was the purpose of the act? This is indicated with reasonable clearness in the title. It is therein stated that the legislation relates to trials for murder and that provision is made for the assignment of counsel and for the allowance of expenses and compensation to them. The specific object is compensation to counsel appointed by the court to defend impecunious prisoners tried for murder. Prior to this enactment such services were gratuitously rendered according to the duty which the members of the bar owed to the court and to the public. Human sympathy and a due sense of professional responsibility were considered to be the sufficient motive for action in such cases. The relation of the counsel so appointed was not one of contract with the accused, but was a gratuitous responsibility arising from the official relation of such counsel to the court. The right to compensation was denied because neither at common law nor by any statute was it authorized. This act was passed for the purpose of enabling poverty stricken persons accused of murder to more fully prepare a defense. Under its provision the attorneys appointed are not only allowed compensation, but may be reimbursed for their personal and incidental expenses connected with the discharge of the duty imposed. The provision for payment by the county is a reasonable if not a necessary incident. Indeed, it is not apparent how resort could be consistently made to any other fund than that provided by the county. And this view is not answered by the fact that statutory authority for the appointment of counsel for persons charged with crimes, who were financially unable to engage attorneys, had for a long time existed. There is no limitation on the power of the legislature to enact another law on the same subject with additional provisions relevant thereto. Light is thrown on the value of the title when we take into consideration the fact that the cost of the administration of criminal justice is, generally speaking, cast upon the county. Such has been the state of the law since the organization of the commonwealth. This extends to many cases where no statutory liability exists, as in the case of a prisoner taken ill at the trial or a juror in the box; the expenses of a coroner in a post-mortem examination; the lodging and board of a jury, and many other instances which might be enumerated. It was stated in general terms in McCalmont v. Allegheny County, 29 Pa. 417, “where no other provision is made for the expenses of the judiciary, the county in which the court sits is primarily liable.” Many statutes have been passed imposing costs in criminal prosecutions on the county for which it was not theretofore liable. All of the expenses incidental to the trial of causes are borne by the county except that portion particularly known as costs. The county is responsible for the maintenance of the facilities for the administration of justice. It elects the district attorney, the sheriff and the clerk of the courts; it provides the jurors; and the charges of all these functionaries are payable from the county treasury. The act under consideration is an enlargement of the power of the court to direct the payment of expenses connected with criminal justice which the legislature deemed appropriate in certain cases and in line with the authorized action of these courts on kindred subjects and with many statutes fixing the liability for costs in such proceedings on the county. The assignment of counsel is a judicial act as is well known. As applied to a murder case it has reference to the appointment of an attorney or attorneys for one who is financially unable to secure his own counsel. There is no merit in the argument that it may be understood to refer to counsel for the prosecution. The district attorney is the lawfully appointed officer to prosecute the case and if he be disqualified the court will appoint a substitute, but this is in no sense the assignment of counsel, as that phrase is commonly and correctly understood. When reference is made to assignment of counsel by the court in a murder trial no one familiar with the course of criminal trials would fail to understand that what was meant was the assignment of counsel for the defendant, and when it is proposed that this be done by the court and that compensation be allowed to the person so appointed, the reasonable inference is that payment is to be made by the county. There is at least such a notice as would lead to an inquiry. The compensation to be allowed is not on any contract of the accused. The only reason for the assignment of counsel is that the defendant is not able to employ them, himself, and what he is not able to do the law steps in and does for him. The effect of the enactment is to increase, with the approbation of the court, the necessary charges for which the county is liable in the particular case and thus to place persons of a certain class tried for murder in a more advantageous position to secure a fair trial. This is reasonably implied in the title. We need not enter into an extended discussion of the numerous cases cited and carefully considered in the elaborate opinion of the court below. The line of cleavage between them is not always clear, but we think none of them -is inconsistent with the conclusion at which the court arrived. The title of the Act of May 13, 1887, P. L. 108, is “An act to restrain and regulate the sale of vinous and spirituous, malt or brewed liquors, or any admixtures thereof.” Of this act and its title it was said in Com. v. Sellers, 130 Pa. 32, “There is not a single section, or clause of any section, in the act, that is not clearly germane to the subject expressed in its title.” This act, as is well known, is a comprehensive regulation of the sale of liquor and contains many provisions not directly suggested by the title. Among others, it is made a misdemeanor for any person with or without license to furnish by sale, gift or otherwise to any person any spirituous, vinous, malt or brewed liquors on any day upon which elections are now or may hereafter be held. It might be argued with much plausibility that the title of an act relating to the sale of liquor gave no notice that it would be a crime for one • not engaged in the business to give away such a beverage on a day when elections are held, but, as we have seen, this argument could not be successfully maintained. Hays v. Cumberland County, 186 Pa. 109; Baker v. Warren County, 11 Pa. Superior Ct. 170, and Read v. Clearfield County, 12 Pa. Superior Ct. 419, vindicate the judgment of the court below. The cases cited by the learned> counsel for the appellant are of two classes, in one of which the titles were clearly deceptive, as in Quinn v. Cumberland County, 162 Pa. 55; and in the other, there was a radical and unusual change in responsibility and a creation of burdens of a class none of which had been theretofore borne, without any intimation in the title of the enacted change, as in Dailey v. Potter County, 203 Pa. 593. In Stegmaier v. Jones, 203 Pa. 47, the title was clearly misleading. It authorized counties of the commonwealth to purchase and condemn bridges, but the body of the act transferred from the county commissioners, who are the lawful administrators of the financial business of the county, to the grand jury the final authority in such cases; “a shifting and uncertain body not usually, if ever, exercising such powers, nor elected by the voters.” The title gave no notice of this transfer of authority. Taking into consideration all the cases to which our attention has been called we do not find a sufficient warrant for annulling the act in question. If there be any doubt on the subject that must be resolved in favor of the validity of the statute.

The judgment is affirmed.