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Pittsburgh Legal Journal.

:

Editor.

In Memoriam.

On motion, the President appointed the fol

lowing committee on resolutions: M. SwartzESTABLISHED 1853.

welder, W. D. Moore, H. H. McCormick, Jacob E. Y. BRECK,

H. Miller, A. McBride, C. S. Fetterman and N.S., Vol. XIII.

J. H. Hampton. The committee reported the 0. S., Vol. XXX. }

No. 15.

following minute for the action of the meeting: PITTSBURGH, PA., NOVEMBER 22, 1882.

As fellow-members of this Bar we deeply deplore and lament the sudden and premature death of our young brother in the profession, (HARLES W. COLLIER.

While death is the inevitable common lot, and brings with it to the surviving friends grief and lamentation, yet when it falls upon the worthy young man fully equipped for the struggle of life, and just entering upon

his career full of promise and of just hope, our sorrow Action of the Allegheny County Bar on the Death of and lamentations assume almost the character of repinCharles W. Collier, Esq.

ing and murmuring at the behests of “ Him who doeth all things well." Our lamented young brother, born,

bred and educated in our midst. the son of a judge, surA meeting of the Bar of this county was held rounded by a legal aunosphere, naturally became the on Monday last, in the Court of Common Pleas, adopted child of the law, and it in the providence of God No. 1, to take appropriate action on the death of

he had been permitted to remain with us, the mature

man would have entirely fulfilled the early promise of CHARLES W. COLLIER, Esq., which occurred on

his youth. Saturday last. The meeting was called to order His intellectual and moral character were in perfect by the Hon. C. S. FETTERMAN, who moved the harmony; logical, clear in his perception, sound in judy. election of the Hon. E. H. STOWE, President

ment and honest in his convictions, he pursued his Judge of the Court of Common Pleas, No. 1, as

profession with high purposes, disdaining all mean

ends. CHARLES ('OLLIER could not think an unworthy President.

thought or do a dishonorable act. To those who loved Judge STOWE, on taking the chair, said: and mourn him, and all who knew him do so, we exGENTLEMEN:-It is entirely unneccessary to mention

tend our profoundest sympathy, and rejoice with them the cause that has brought us together this morning.

that his life leaves nothing to regret but its early terniYou are all aware that it is the death of our friend, and

nation, and will forever be a sacred and cherished your fellow-member of the Bar, CHARLES W. COLLIER. memory. I do not know that I can say anything to give force to a After remarks by W. D. Moore, Jacob H. Milmeeting of this kind. You all know the vigorous health, ler, R. B. Carnahan, ('. E. Cornelius, Jacob F. the young athletic manhood of the deceased, and you have all felt as I have the shock caused by hearing of the Slagle, 1. F. Patterson, W. 1). Porter, Judge sudden, and until within a very few days, unanticipated White, Judge Over, J. McF. Carpenter and death, of a man of so much vigor and promise of life. T. M. Marshall, the minute was unanimously

We are in the habit of saying, on occasions of this kind, adopted. It was also resolved that the action that it is another warning. Surely this is, at least to the older members of the Bar, an occasion when, if we ever

the meeting be suitably engrossed and a copy be do pause to think of futurity, we ought to stop and con- presented to the parents and one to the wife of sider where and what we are. How long will it be ere the deceased, and that the members of the Bar the inevitable summons comes to us! If the sons-if our attend the funeral in a body. sons-our children are so suddenly stricken down, should not we, their fathers, expect soon to follow them. This son has gone in the early dawn of manhood. The father, in the full maturity of life, bowed with grier, still re

THE Bar of Philadelphia county have tenmains, and yet he and I and all of you here are going dered a banquet to Chief Justice SHARSWOOD) rapidly and inevitably in the same direction, and the on his retirenient from the Supreme Court, and question will, on such an occasion as this, force itself he has accepted the invitation. The Albany upon us, how long till our time comics? And while I will not now seek even to “point a moral" by a more

Law Journal last week paid the following bigh particular reference to the deceased, yet when we look tribute to his ability : “The legal profession all back two or three weeks and recall him so young and over the country will vote with regret the apcarnest,-surrounded by all that could make life enjoyal- proaching retirement of Chief Justice SHARSble, and see him now ready for the grave, the contrast is one that not only gives us the greatest sorrow, but

Woon), of Pennsylvania. This gentleman has makes us feel deeply the uncertainty and the worthless- for many years been one of the most admirable ness, in one sense, of earthly anticipations.

of American judges. The books are full of his The other officers were: Vice-Presidents-J. learning, and the dignity, purity and moderaH. Bailey, J. W. F. White, J. M. Kirkpatrick, tion of his character have lent weight to his Thos. Ewing, W. G. Hawkins and J. W. Over, opinions. His name, cherished in his own Judges of the county courts. Secretaries—W. State, will always be among the foremost of D). Porter, C. C. Montooth, J. 0. Petty, T. D. that great line of judges who have made the Carnahan, Marshall H. McGeary and John M. jurisprudence of Pennsylvania respected and Gelring.

potential both at home and abroad.”'

Supreme Court, Penu'a.

notices of a similar character from the treasurer and solicitor of the city. The plaintiffs, believ

ing the assessment was illegal, paid installments GEORGE E. PEEBLES and WIFE V. THE

amounting to $6,316 with a distinct declaration CITY OF PITTSBURGH.

that the same were paid under protest, and with

notice that if plaintiffs were not legally liable to A payment of taxes is not compulsory, when it is not made under any duress of person or goods, or under pay the same they would seek to recover them any impending danger of seizure or sale of property;

back. The solicitor for the city assented to the or where, before a warrant directing a levy can be proposition that if there was no legal liability issued, the party against whom the tax is charged is

to pay the assessment, the money could be reentitled to a day in court.

covered back from the city. Where there is a compulsion actual, present, potential in inducing the payment by force of process available

Afterwards, in the case of Seely v. City of Pittsfor instant seizure of person or property, and the cie-burgh, 1 Norris, 360, the Supreme Court, reversmand is really illegal, there the party by giving notice ing the court below, held that “the mode of of the illegality and his involuntary payment can assessing the costs cannot be applied when the recover back the money so paid.

street improvement is made through rural or Where the payment is voluntary, as in this case, a protest with notice of an intent to reclaim is not sufficient suburban districts, and the Act of April 2, 1870, to sustain a recovery. The voluntary character of the in so far as it applies this mode of assessment to payment still remains, notwithstanding the notice, such districts is unconstitutional." and is fatal to the action. A protest is of no avail except in the case of payment with-it was admitted that the character of the

At trial by the court-a jury being dispensed made under duress and coercion, and then only as evidence tending to show that the alleged payment plaintiffs' property brought it fully within the was the result of duress: Je Millen r. Richards, 9 Cal., protection of the rule in Seely v. City of Pitts417; Shane v. City of St. Paul, 10 Reporter, 368.

burgh. The court found the facts substantially The doctrine of Hospital 1. Philadelphia County, 12 llar

as above stated, and ordered that judgment be ris, 229, and Taylor ». The Board of Health, 7 ('asey, 73, approved.

entered in favor of the defendant. The cases of the Borough of Allentown i'. Saeger, 8 Harris, Plaintiffs filed exceptions to the conclusions

421, and McCrickart v. City of Pittsburgh, 7 Norris, 133, of law; the exceptions were overruled, and the distinguished from cases at bar.

plaintiffs took a writ of error. Error to the Court of Common Pleas, No. 1,

For plaintiffs in error, Wm. P. Elliott, Esq. of Allegheny county.

Contra, W. C. Moreland, Esq. The plaintiffs were owners of a tract of rural property fronting on Penn avenue for a distance Opinion by GREEN, J. Filed October 25, 1882. of 1,400 feet just within the city limits of Pitts- The assessment against the plaintiff's could burgh. Under the Act of Assembly, known as only be collected adversely by means of a pro"the Penn Avenue Act,” approved April 2, ceeding in the courts. It was payable in install1870, this avenue, without the co-operation of ments, and if these were not paid within thirty the plaintiffs in any respect, was improved and days after they became due, the city attorney the entire costs thereof was assessed equally per was to file a claim for the same in the District front foot upon the property abutting, upon said Court in the same manner as mechanics' liens avenue.

are filed, and a writ of scire facias and levari When the improvement was completed per- facias might issue thereon as in case of meemptory notice was given the plaintiffs, by the chanics' liens. Of course, in such a proceeding city treasurer, of the special assessment against the person assessed would be accorded every them, amounting to $13,582.32, with interest at possible opportunity to appear and interpose all 7 per cent. ; that the first installment, $3,359.76, objections to the recovery of the money. In the was due, and if not paid within thirty days a present case notice of filing the assessment with lien for the whole assessment would be filed the city treasurer was given to Mr. Peebles by against their property.

that officer, and demands were made for the Subsequently a notice, partly in writing and payment of several installments, accompained partly in print, from the city attorney notified with the statement that unless they were paid the plaintiff's that said installment had been they would be collected by process of law. These left with him for collection, stating that “unless demands were made by the city attorney, in immediate payment is made it will become my whose hands the claims had been placed for duty to collect the same by process of law within collection. The plaintiffs allege, and the court thirty days. You will avoid trouble and ex- has found, that in consequence of these demands pense by attending to the matter at once." they paid several assessments protesting that

All the installments sued for were paid after they were not legally liable to pay the same and

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would seek to recover back the money. The is called on peremptorily to pay upon such a court also finds that the plaintiffs believed the warrant, and he can save himself in no other assessment to be illegal and void at the time way.than by paying the illegal demand, he may the installments were paid, and further, that the give notice that he so pays it by duress, and not city solicitor assented to the proposition that if voluntarily and maintain an action to recover there was no legal liability to pay the assessment it back: 17 Mass. 461; 12 Pick. 13." The forethe money could be recovered back from the going extract expresses the whole law applicable city.

to this case. Where there is compulsion actual, In such circumstances can the plaintiffs re- present, potential in inducing the payment by cover? We think not. The reason is that the force of process available for instant seizure of payments were not compulsory. They were person or property, and the demand is really not made under any duress of person or goods, illegal, there the party by giving notice of the or under any impending danger of seizure or illegality and of his involuntary payment can sale of property. No warrant or other process recover back the money so paid in an action had been issued directing a levy upon any prop- brought for that purpose. Where the payment erty, nor had any right been acquired to issue is voluntary, as in this case, a protest with notice such process. Before such a right could possibly of an intent to reclaim is not suliicient to sustain be obtained, the plaintiffs were entitled to a day a recovery. The voluntary character of the in court, to be heard in opposition to the claim, payment still remains, notwithstanding the to have the adjudication of the regularly consti- notice, and is fatal to the action. The element tuted courts of the Commonwealth, including of coercion is essential to the right. Thus, in the court of last resort on writ of error. The Dillon on Municipal Corporations, Sec. 940, one plaintiffs believed, at the time the installments of the requisites to the right of recovery is thus were paid, that the assessment was wholly void, described: “The payment by the plaintiff'must and the Act of A sembly under which it was have been made upon compulsion to prevent laid unjust and unconstitutional. There was, the immediate seizure of his goods or the arrest therefore, no mistake, either of fact or law, un- of the person, and not voluntarily. Unless these der the influence of which the money was paid. conditions concur, paying under protest will not A payment in such circumstances is a voluntary give a right of recovery." In the case of Taylor payment and cannot be recovered back, and v. The Board of lIealth, 7 Cas., 73, it was said, this has been many times held. The doctrine in the opinion of this court, on page 70: “We is fully set forth in Hospital v. Philadelphia state the case as one of a voluntary payment of County, 12 Harris, 229, one of the cases relied taxes, because there is no pretense that the deupon by the plaintiff's. On page 231, LOWRIE, fendant's officers did any more than demand J., said: "A voluntary payment of money in the tax under a supposed authority of the law, der a claim of right cannot, in general, be re- and this is no more a compulsion than when covered back; but it has been held that when a an individual demands a supposed right. The party is compelled by duress of his person or threat that is supposed to underlie such demands goods to pay money for which he is not liable, is a legally harmless one; that in case of refusal, it is not voluntary but compulsory; and he may the appropriate legal remedies will be resorted rescue himself from such duress by payment of to." Neither this case nor the case of Borough the money, and afterwards, on proof of the fact, of Allentown v. Saeger, 8 Harris, 421, decides recover it back: Astley v. Reynolds, 2 Str., 916; that a mere protest and notice, where the pay12 Pick, 13. But the threat of a distress for ment is voluntary, will confer a right of rerent is not such duress, because the party may covery. In the latter case the money was paid replevy the goods distrained, and try the questo an ordinary tax collector who, it must be tion of liability at law: Knibbs v. Hale, 1 Esp. supposed, was armied with a warrant in the Rep., 86. The threat of legal process is not such usual manner. In McCrickart v. City of Pittsduress, for the party may plead and make proof, burgh, 7 Norris, 133, the question was not raised. and show that he is not liable: Brown v. Mc- The payment was purely voluntary, and the kinally, 1 Esp. Rep., 279. But the warrant to decision was put upon that ground. We have a collector, under a statute for the collection of not been referred to any case, and we know of taxes, is in the nature of an execution running none, in which upon the question being directly against the person and property of the party, raised, it has been held, that where the payment upon which he has no day in court, no oppor- was entirely voluntary a right to recover back tunity to plead and offer proof, and have a judi- the money paid was created by a protest and cial decision of the question of his liability. notice of an intent to reclaim. On the contrary, Where, therefore, a party not liable to taxation it has been frequently, and by diflerent courts

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decided, that such a notice and protest are not ing the illegal demand, he may give notice that sufficient to give a right of reclamation where he so pays it by duress and not voluntarily, and the payment was voluntary, the point being by showing that he is not liable recover it back," directly under consideration. The following and he adds: “This, we think, is the true are some of the cases : Commissioners v. Walker, rule.” Many more cases to the same effect 8 Kansas, 431 ; Railroad v. Commissioners, 98 U. might be cited, but it is unnecessary to prolong S. Rep., 541, per WAITE, C. J.; Forbes v. Ap- the discussion as the principle involved is free pleton, 5 Cush., 115; Patterson v. Cox, 25 Ind., of difficulty.

Judgment affirmed. 261. In Shane v. City of St. Paul, 10 Reporter, 368,

Orphans' Court. the court say: “The payment, therefore, was a voluntary one unless the protest which accompanied it gave it a different character. This In Re Application of M. K. MOORHEAD. it could not do. If in fact the party was under no duress, restraint or compulsion, when he The Act of March 29, 1832, P. L., 191, gave to the Ormade it, it can not be said that he acted under

phans' Court jurisdiction over minor children of liv.

ing, as well as of dead parents. The grant of the power the influence of any coercion in making it, be

to care for the persons of infants, under that act, car. cause he accompanied the act with a written or ried with it every incident necessary to effectuate that verbal protest. A protest is of no avail except in the case of payment made under duress or

As a general rule the surviving parent is entitled to the coercion, and then only as evidence tending to

custody of the persons of his children; his right is the

result of a natural, and is recognized by the civil, law; show that the alleged payment was the result and where there is a natural guardian jurisdiction of of duress: McMillen v. Richards, 9 Cal., 417." the Orphans' Court can only be called into action in In the case of Railroad v. Commissioners, supra,

favor of infants, by such guardian's inability, refusal Chief Justice WAITE, after stating the rule sub

or neglect to perform his duties in accordance with the

best interests of such infants. stantially as above, added, on page 544: “This,

The parental right is founded upon the presumption as we understand it, is a correct statement of that it is for the best interest and benefit of the minor the rule of the common law. There are, no children that they should be under his care, and when doubt, cases to be found in which the language

this presumption is overcome by evidence, which must

be clear and satisfactory, that it is not for the best inof the court, if separated from the facts of the

terest of the infant that it should be in the custody of particular case under consideration, would seem the father, the parental right is stricken down. to imply that a protest alone was sufficient to A sense of parental duty ought to withhold a parent show that the payment was not voluntary; but

from pressing his claim to the custody of a child when

ever the true interest of the child forbids it. on examination it will be found that the protest

whenever this parental obligation fails to influence was used to give effect to the other attending the conduct of the parent the principles of our law circumstances.” This observation is applicable authorize the courts to interpose in behalf of the to many of the cases cited by the learned coun

child. sel for the plaintiff. It is worthy of remark that

Such custody is referable to its interest and welfare,

and is to be selected by the court in the exercise of a in the case just referred to the claim paid was

sound judicial discretion irrespective of the claims of for taxes and the treasurer had in his hands at either parent. the time a warrant which would have author- The reason must be strong and cogent to justify a court ized him to seize the goods of the company to

in depriving a father of the custody of his child. enforce the collection, and the warrant was in

A father may emancipate his child for its benefit, wholly

from his authority; if he may emancipate wholly, he the nature of an execution running against the

may partially. property. When the company paid the tax claimed they filed with the treasurer a written Opinion by OVER, J. Filed November 15, 1882. protest alleging the illegality of the tax, and The petition filed in this case prays for the giving notice that suit would be brought to re- appointment of a guardian for the persons of cover back the money paid. Notwithstanding the minor children of John W. Watt, the reall this, it was held that no recovery could be spondent, for two reasons: (1) It is a verred had, because in fact no attempt had been made that, on account of their extreme youth, their to put the warrant in force. The Chief Justice welfare demands that they should be under the quotes, with approbation, the language of Chief care of Mrs. Moorhead, their maternal grandJustice Shaw, in Preston v. Boston, 12 Pick., mother; and (2) that the respondent, on ac14, stating the rule thus: “When, therefore, a cout of his sullenness, cruelty of disposition party not liable to taxation is called upon per- and ungovernable temper, is unfit to have their emptorily to pay upon such a warrant, and he custody. can save himself in no other way than by pay- To sustain the second averment evidence was

And

offered, and admitted under objections, to show home, where every want would be supplied, unkind treatment by the respondent of his wife. | and affectionate care are certain. Why, then, Whilst, if this fact were established, it by no should they be deprived of such a home and means follows that the respondent is to be de- such care during the helplessness of their inprived of the custody of his minor children; yet fancy; and what will be the care and home as such evidence throws light on his disposition they will have if removed from her custody? and temper in the family relations, and tends to the respondent intended to commit them to make up his domestic character, it is certainly the care of Mrs. May, who had been their nurse entitled to some weight in determining the prior to their mother's death and since. She, question at issue. This evidence shows that no doubt, is a very competent nurse. But the the respondent swore at his wife once through contradictions of her testimony and her evident the telephone, at another time at his own house desire to shield the respondent do not commend in the presence of a visitor, using very vulgar her as a suitable person to be placed in the posilanguage, and on another occasion in a railway tion of a mother to these children. Since the car in the hearing of at least one passenger. filing of this petition the respondent's sister,

That when his last child was but three days Mrs. Scott, has concluded that she can devote old, at the breakfast table he conducted himself, some time to assist in taking care of them. She without provocation, towards Mrs. Moorhead in is a widow and has a family of three children, a most ungentlemanly manner, and profanely and is engaged in business in the city. His expressed his wish that she should leave the mother, who has not been in good health and house, and then went from the dining-room who is sixty-two years of age, has also concluded into his wife's chamber in an excited manner that she can devote her time to them. Both of and told her that he had ordered her mother them refused to take charge of the children out of the house, and that she would have to prior to the filing of the petition. choose between them, causing her to burst into Surely, the affection which required the stimtears. And when this child was but eight ulous of this whappy legal contest to cause weeks old he had some disagreement with his them to come to this conclusion would not supwife, and as the witness expressed it, “banged ply the affectionate care which the children are the door against her arm," inflicting a painful certain to receive from Mrs. Moorhead. if not a serious injury to her arm and wrist. This much as to the care, what as to the home?

To support the second averment evidence was The respondent has been a willing pensioner also offered showing that on three or four occa- on the bounty of Mr. Moorhead ever since his sions he chastised his son Maxwell in a manner marriage. He has had situations procured for which was perhaps violent and which certainly him by Mr. Moorhead's influence, in which he deserves to be condemned.

received from twelve to fifteen hundred dollars This evidence shows that the respondent has per annum, and yet it does not appear that he a violent temper which he has failed to control, has ever contributed a penny to the support of especially on occasions when it would be most his wife and children, except to pay a year's expected he should.

rent of a house at Shady Side. His estate, aside And whilst this is not a suflicient reason to from his interest in his deceased wife's estate deprive him of the custody of his children, it is and six acres of land given him by Mr. Moorentitled to some weight in determining the head, amounts to little. And although Mr. question.

Moorhead paid, after his marriage, $10,000 of The next inquiry is, Does the welfare and bis indebtedness, he is still involved in some best interests of these children require that they debt. Judging from the past, there is but little should be under the care of their maternal hope that he would maintain these children in gandmother, Mrs. Moorhead ?

the future out of his own estate, or by his exerTheir mother was her only child. Her relations. There can then be no doubt that they tions with her daughter and them were of the are more certain of a comfortable home with most intimate and affectionate nature. The Mrs. Moorhead than with the respondent. It eldest child was born at her house and remained being so manifestly for the best interests and with its parents there for a year after its birth. welfare of these minors to remain under the Since her daughter's death, with the consent care of Mrs. Moorhead, why should the responand approbation of the respondent, she has dent object ? taken the place of a mother to them. That she The proposition of the petitioner was and is to is entirely competent to train and watch over keep both him and his children, that they should them, and would do so with a mother's love, is make their home with him. The only reason beyond doubt. With her a most comfortable , he gives, which is at all worthy of considera

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