« AnteriorContinuar »
act did not apply, because the defendants were arrival of the defendants' train, sought to renot carriers of the trunk by land, the trunk cover the costs of a special train which he had having been accepted to be carried partly by engaged. MELLISH, L. J., said: “Now one land and partly by sea. But LOPES, J., rightly mode of determining what, under the circumheld that the contract was divisible, and that stances, was reasonable, is to consider whether the trunk was lost, within the meaning of the the expenditure was one which any person in act, directly it was on the road to the Victoria the position of the plaintiff would have been Docks instead of to Liverpool. As an authority likely to incur, if he had missed the train for this position he referred to Le Conteur v. through his own fault, and not through the London, etc., R. Co., L. R. 1 Q. B., 54, to which fault of a railway company. I think the plainwe may add references to Pianciani v. L. & N. tiff would have gone to the same expense and W. R. Co., 18 C. B., 225; Baxendale v. Great bought the same articles for the use of his wife Eastern R. Co., L. R. 4 Q. B., 244; Moore v. | if there had been no railway company to look Midland R. Co., 8 Ir. L. T. Rep., 165; Doolanto, and if the trunk had been lost by his own v. Midland R. Co., L. R., 2 H. L. 792, and Lon- fault. There was nothing extravagant or undon, etc., R. Co. v. James, L. R. 8 Ch. App., 241. reasonable in his so doing. I do not think these Again, it was contended by the plaintiff that damages too remote." This conclusion seems the defendants were not entitled to the protec- to us to be fortified by the cases of Walton v. tion of the act, because they were wrongdoers, Fothergill and British Columbia Saw Mill Co. wrongdoers in that they sent the trunk on the v. Nettleship, to which we referred at the outset; wrong road and not on the journey contracted the former case seeming to hold that, if the for. But Morritt v. North Eastern R. Co., 1 Q. | plaintiff, in order to perform a contract, was B. D., 302, affords an answer to that objection; forced to buy other goods at an increased price, BLACKBURN, J., saying: “Unless it is proved in consequence of the non-arrival of those which the misdelivery was intentional, the case is the defendant had contracted to carry, this within the act ;” and MELLISH, L. J., saying: | would be such a natural result of the defend“If goods by negligence of the carrier are carried ants' neglect as to entitle him to recover his beyond the point of destination and injured, loss; while in the latter case the court considthis is within the Carriers Act."
ered the plaintiffs entitled to recover the sum But, lastly remained the question whether necessarily expended in replacing the lost box the plaintiff was entitled to recover the £10 for 1 of machinery there in question. Nor can we repurchase of other articles in Rome at enhanced any longer deem it doubtful that in Eyre v. prices, irrespective of the Carriers Act- the Midland Great Western R. Co., 15 Ir. L. T., 291, plaintiff contending that the act did not apply the plaintiff' would have been entitled to recover to that part of his claim. “I think the plaintiff for the loss incurred by having to replace the is right,” said LOPES, J., “for this is not a loss personal necessaries contained in his trunk. by the carrier of the trunk, nor an injury to its contents, but damages sustained by the owner
RECENT CRIMINAL CASES. in consequence of the non-delivery within due time; it is something consequential to its loss.
Defenses—Former Jeopardy. I do not think this £10 is within the protection of the Carriers Act. But the defendants say if --On indictment for murder against two, a it is not within the protection of the Carriers verdict of acquittal on the evidence being renAct, this portion of the claim is too remote. dered as to one, and the other found guilty of Much depends on whether it was a reasonable murder in the second degree, which judgment and necessary act of the plaintiff to buy these was reversed on error, at the instance of the latarticles in Rome. This is a question of fact ter, because the record showed a fatal defect in which I have to decide, and I think it was both the formation of the grand jury by which the the reasonable and necessary consequence of de- indictment was found, though no objection was fendants' failure to deliver, that plaintiff'should raised to it in the court below on that account, purchase what he did in Rome--a necessity the verdict and judgment operate as a bar to arising from the non-delivery of a trunk which another prosecution of the defendant who was the defendants might fairly assume contained acquitted, and are available to him under the wearing apparel. The observations of MELLISH, plea of former acquittal; and as to the other L. J., in the case of Le Blanch v. London, etc., defendant, when again indicted, operate as a R. Co., 1 C. P. D., 286, are not inapplicable here. bar to a prosecution for murder in the first deThat was a case where a passenger, delayed in gree.- Ala. Supreme Court. Berry v. State, 65 his journey by the want of punctuality in the Ala., 117.
Supreme Court, Penn'a.
On March 21, 1879, Samuel A. Frankenfield filed his final account, in which he claimed
credit, inter alia, for the sum of $1,000, deposited FRANKENFIELD'S APPEAL.
| by him in the savings bank, which had not been The committee of a lunatic can only protect himself from , repaid him, and also for the $60 counsel fee paid
risk when he invests the trust funds in real or govern- by him. The auditor being of opinion that the ment securities, or makes the investment in pursuance
deposit in the savings fund was unauthorized of an order of the court.
and illegal, declined to allow the accountant Where a person makes a deposit in a savings fund, receiving a certificate in return, by the terms of which he
credit for those items, and surcharged him in is to be entitled to draw the money with interest at the sum of $1,060. He also reported a decree three months from date, on giving thirty days' notice of distribution among the next of kin of the of his intention so to do, this is to be regarded properly atie
as an investment and not as a deposit. Where the committee of a lunatic invests money belong
| Frankenfield filed exceptions to this report, ing to the lunatic's estate in the above manner, and on the ground, inter alia, that he should have afterwards the savings bank becomes insolvent and been allowed the credits claimed by him. The fails to refund the whole sum so invested, the committee
court, in an opinion by ALBRIGHT, P. J., diswill be held responsible for the loss. Where the committee of a lunatic files a final account,
missed the exceptions and confirmed the report, after the lunatic's death, the Court of common Pleas whereupon Frankenfield took this writ, assignhas no jurisdiction to distribute the estate among the ling for error, inter alia, the surcharging him deceased lunatic's next of kin, but must award the
| with the sum of $1,060, and the distribution of same to his personal representative, to make distribution according to law.
the estate to and among the heirs of the lunatic. Appeal of Samuel A. Frankenfield from a de- ! For appellant, Messrs. Edward IIarvey and cree of the Court of Common Pleas of Lehigh | W. H. Sowden. county, dismissing his exceptions to and con- ' Contra, John Rupp, Esq. firming the report of an auditor appointed by the court to audit appellant's final account as
Opinion by GREEN, J. Filed April 3, 1882. committee of Samuel Frankenfield, a lunatic. In this case the appellant, who was the com
The following were the facts of the case, as mittee of a lunatic, having trust funds in his reported by the auditor: On October 31. 1870. / bands, made a deposit of $2,000 thereof in the Samuel Frankenfield was duly adjudged a luna-| Franklin Savings Bank of Allentown, Pa., and tic, and Samuel A. Frankenfield was appointed took a certificate therefor in the following from: as committee of his estate. On November 8, Certificate
Franklin Savings Bank, of Deposit.
Allentown, Pa., STAMP. 1876, certain money belonging to the lunatic was
November 11, 1876. paid to Samuel A. Frankenfield, who, on No S. 1. Frankenfield, Committee of Samuel Frankenfield, vember 11, 1876, having previously consulted his
has deposited in this Bank Two thousand Dollars, pay
able to his order, three months after date, with interest counsel, deposited $2,000 thereof in the Franklin
at the rate of six per cent. per annum, on return of this Savings Bank of Allentown, receiving the fol
certificate. lowing certificate:
Thirty days' notice to be given of the intenNo. 417. Franklin Savings Bank, $2,000
tion to withdraw this deposit. ('ertificate of
D. H. MILLER,
Cushier. Per J. E. Z., President. S. A. Frankenfield, Committee of Samuel Frankenfield, has deposited in this Bank Two thousand Dollars, pay
The deposit was made in the name of the comable to his order, three months after date, with interest mittee as such, it was done by the advice of at the rate of six per cent. per annum, on return of this counsel, and at the time of the transaction the certificate.
bank was in good repute. So far, therefore, as Thirty days' notice to be given of his inten$2,000 tion to withdraw this deposit.
these considerations affect the question of the J. E. ZIMMERMAN,
D. H. MILLER,
appellant's liability for the loss of the money by Cashier, Per J. E. Z., President. I reason of the insolvency of the bank, it must be The savings bank had a capital of $20,000, of conceded at once that no liability would arise. which $5,000 were paid in. It was at the time | There was no bad faith on the part of the appelof the deposit actually insolvent, but had the lant, and although the bank was really insolvent reputation in the community of being a safe and when the deposit was made, that fact was not solvent institution. In April, 1877, it closed its known in the community. The question at doors, and made an assignment for the benefit issue is thus reduced to the narrowest limits. of creditors. Samuel A. Frankenfield then em- If this had been an ordinary deposit, subject to ployed counsel to bring suit against it, and re- the check of the depositor from the day it was covered the sum of $1,000. He paid to his coun-made, it is very probable the appellant would sel $60 for professional services in this suit. | not have been liable. But it was not such a
deposit. In practical effect, it was a loan to the shall be duly appointed, and he can make disbank for a fixed period and payable with inter-tribution according to law. This subject was est. During that period it was entirely beyond not presented to the attention of the court below. the control of the depositor. He could make no The decree of the court below is affirmed, exlegal demand for the money until at least three cept as to so much thereof as makes distribution months had expired, and not even then unless of the fund in the hands of the accountant; and he had given thirty days' notice of his intention as to that part of said decree, the same is now to withdraw the fund. In no essential feature reversed, and the record is remitted to the court does this transaction differ from an ordinary | below for further proceedings, the costs of this loan. It is true, the borrower is a bank and appeal to be paid by the appellant. not an individual. But that circumstance is of no moment in determining the character of the
J. W. PORTER, Defendant Below, v. A. ZEITtransaction. It is a loan still, just as it would
INGER & P. ZOPPI. have been had the depositary been a citizen or a firm of the greatest wealth, or a manufactur
Where a factor is instructed to sell goods upon credit, ing or business corporation of large capital and and in his letter of instruction is informed that his resources. In these latter cases the security principal will dispose of the note of the purchaser, the would apparently have been greater, for the
factor will be liable to his principal for the amount of
the note, if, instead of transmitting it to his principal, capital of this bank was actually very small.
he takes it in his own name and has it discounted The distinguishing feature of the case is, that himself. even if the money be regarged as deposited in
Error to the Court of Common Pleas, No. 1, the technical sense, it was also loaned, and
of Allegheny county. hence was subject to the qualities and incidents of a loan superadded to those which belonged to
Zeitinger & Zoppi, during the years 1874 and it as a deposit. Nor does the brevity of the time
1875 and subsequent thereto, were engaged in affect the question. There could be no differ
the manufacture of iron blooms, etc., in St. ence in principle between a deposit payable in
Louis, and J. W. Porter at the same time was three months and one payable in twelve or
an iron commission broker in Pittsburgh, Portwenty-four months, when the question relates
| ter occupied the relation of a factor towards only to its character as a loan. This being so,
Zeitinger & Zoppi, receiving consignments dithe law regulating investments by committees
rectly from them, making advances thereon of lunatics becomes applicable to the case and and carrying the proceeds of sales to their credit. controls it. The Act of June 12, 1836, % 25, ex
In the early part of 1875, Zeitinger & Zoppi were pressly directs that such investments must be
indebted to Porter for advances in a sum exmade under the direction of the Court of Com
ceeding $14,000. To secure himself for the inmon Pleas, and only exempts the committee
debtedness, Porter had on hand a large quantity from liability for loss when he pursues this
of blooms, the property of his principals. His course and in good faith: Purd. Dig. 983, pl. principal:
principals were anxious to sell to Rogers & 25. In Hemphill's Appeal, 6 Harris, 303, it was
| Burchfield, a firm doing business in Pittsburgh, formally and definitely settled that a trustee can
a bill of goods, including the blooms in Porter's only protect himself from risk when he invests
custody, but Porter, believing Rogers & Burchthe trust fund in real or governmental securities
field to be insolvent, was unwilling to make the or makes the investment in pursuance of an
sale. Porter then received the following letter order by the court. On p. 306, BLACK, C. J.,
from his principals : says: “It has never been doubted anywhere
"SOUTH ST. LOUIS, MO., June 5, 1875. that a loss which accrues of a trust fund, in
"MR. J. W. PORTER, Pittsburgh, Pa.,
“Dear Sir :-We refer to our last letter, and hereby vested on personal security, must be borne by
notify you that if you can sell one hundred tons blooms the trustee.” These considerations determine
to Rogers & Burchfield we will take the paper and the that the auditor and court below were right in risk. In this case if you have not enough double blooms holding the appellant liable for the loss of the on hand we will send the balance. We are informed by sum of one thousand dollars, deposited with the
parties we are dealing with in pig metal that they will
take any paper of the above-named firm, and therefore Franklin Savings Bank.
if you can effect any sales please do so at the best The decree of distribution, however, cannot market price.
Yours truly, be sustained. It was entirely without authority,
“ZEITINGER & ZOPPI." as the Court of Common Pleas has no jurisdic- ! Acting under this authority, Porter sold to tion to distribute the estate of deceased persons. Rogers & Burch field, taking their note at four The fund can be paid to the legal representative months, payable to his own order. This note of the deceased lunatic, whenever such a person he discounted and the proceeds he carried to ------- - --------the credit of Zeitinger & Zoppi, charging them and before it matured the makers failed. The with the discount. Before the maturity of the learned judge correctly held the plaintiff in note Rogers & Burchfield failed and were error thereby became liable to his principal, thrown into bankruptcy.
Judgment affirmed. Porter notified his principals to prove their claim against Rogers & Burchfield, but they RICE v. THE COMMONWEALTH. refused to do so, claiming that they were not concerned in the matter.
The fact that by the Act of April 3, 1872, 2 1, Purd., Upon a final settlement between Porter and
625, a defendant charged with the commission of a
crime or offense, not above the grade of misdemeanor, his principals there was a balance due to them,
is a competent witness, and may testify in his own provided the note in question should be charged behalt, does not repeal the Act of March 31, 1860, against Porter, and claiming that the note 41, Purd., 326, which provides that in prosecutions should be so charged, Zeitinger & Zoppi brought
for seduction, the promise of marriage "shall not be
deemed established unless the testimony of the female this action to recover the balance in their favor.
seduced is corroborated by other evidence, either cirThe errors assigned were as follows:
cumstantial or positive." 1st. The court erred in affirming the second What is sufficient circumstantial evidence from which point of plaintiff's below, to wit: “That the let
a jury may infer a promise of marriage, discussed and
passed upon. ter of June 5, 1875, did not authorize the defendant to sell to Rogers & Burch field at plaintiffs'
Error to the Court of Quarter Sessions of Lackrisk, except upon condition that the paper re awanna county. ceived should be made and delivered to them." Indictment against Frederick Rice for the Affirmed.
seduction of Margaret Robertson under promise 2d. The court below erred in charging the jury of marriage. Plea, not guilty. as follows, to wit: “The instructions in the let- On the trial, before HANDLEY, P. J., it was ter, taken alone, certainly were not complied admitted that the defendant had had illicit conwith ; that is very plain from the evidence. Thenection with Miss Robertson, and that she was letter says: 'If you sell them we will take the under the age of twenty-one years at the time paper and the risk.' Good faith required if Mr. the said illicit connection took place. Miss Porter sold under that title, that he send the Robertson testified that she had been seduced by plaintiff's the paper, or notify them, if he took | defendant under a promise of marriage. There it in his own name, that he had sold and the was no directly corroborative evidence of this paper was at their disposal."
allegation. It was shown that she and the de3d. The court below erred in charging the jury fendant had become acquainted with each other as follows, viz: “It is alleged that in Rogers & about a year prior to the first connection beBurchfield's bankruptcy proceedings, Mr. Por-tween them; that thereafter the defendant had ter proved the note as his own claim, as if it accompanied her home from church every Sunwas his own property, and it is very plain to day night, that they sometimes took evening the court, from all of these facts, that there was walks together, but that Rice almost always left no compliance with the letter, and therefore her at the gate, never entering the house, with the risk ought not to be the plaintiffs' but the the exception of three or four times during the defendant's."
year. There was some evidence which went to For plaintiffin error, defendant below, Messrs. show that the defendant admitied a promise S. Schoyer, Jr., and West McMurray.
to marry. Contra, Messi's. Slagle & Wiley.
At the close of the testimony on the part of
the Commonwealth, the counsel for defendant PER CURIAM. Filed October 17, 1881. moved to take the case from the jury, so far
It may be conceded that a factor selling on as it related to the question of seduction. Mocredit and taking a note in his own name, does tion overruled. Exception. (First assignment not by that alone, become liable to his principal of error.) in case of the purchaser's failure. The rule,' The defendant then testified in his own behowever, is different if the factor negotiates it half, denying that he had made any promise of for his own use. We think the true construc- marriage to induce Miss Robertson to consent tion of the written authority under which the to the illicit connection. Other evidence was plaintiff in error acted, was in case of a sale, given to show that the girl was a loose characto transmit the note to his principals. Their ter, and went by the name of “the regular." clearly implied intention was to dispose of it to The court charged the jury, inter alia, as folparties with whom they were dealing. Instead lows: “It is contended that this case requires of so doing, he caused it to be discounted, I the essentials so far as the making of presents, writing of love letters and all of such things | record having been brought into this court for that pass between young people, to make out review, several errors have been assigned to the this case. But we have long passed that day, rulings of the learned judge, the most material so far as courtship is concerned. There is no of which are the second and third. doubt but that in the early history of these It was palpable error to instruct the jury that cases, when the defendant was not permitted evidence to corroborate the prosecutrix in reto go upon the witness stand and not allowed gard to the promise of marriage is no longer to testify, there should be corroborative evi- necessary. Upon this point the learned judge dence to sustain the charge made by the young charged: “There is no doubt but that in the lady of the promise of marriage, but in our day early history of these cases, when the defendand generation, when a defendant may go uponant was not permitted to go upon the witness the witness stand and may testify equally as stand and not allowed to testify, there should well as the prosecutor, then of course these es- be corroborative evidence to sustain the charge sentials are not absolutely necessary, although made by the young lady of the promise of marthey may yet appear in the case. The proper riage; but in our day and generation, when a way to dispose of causes of this kind is to take defendant may go upon the witness stand, and each case as it stands on its own four legs, take testify equally as well as the prosecutor, then of the case as the parties built it up, keeping in course these essentials are not absolutely necesmind their standing in society and their im- sary, although they may yet appear in the case. mediate manner of courtship." (Second assign. The proper way to dispose of cases of this kind ment of error.)
is to take each case as it stands on its own four “One man may desire to court the girl he de- legs, take the case as the parties built it up, sires to make his wife in a secluded place, or he keeping in mind their standing in society and may desire to keep it quiet; another may be in their immediate manner of courtship." the habit of keeping company with a young The 41st section of the Act of 31st March, lady and appear upon the public highway from | 1860, P. L., 394, which defines the offense of time to time so that all may see him, hence seduction, expressly provides “That the promthere is no standard, each case must stand on ise of marriage shall not be deemed established its own four legs as the parties built it up." , unless the testimony of the female seduced is (Third assignment of error.)
corroborated by other evidence, either circum“Now it is for you to say from all of the evi- stantial or positive." dence and the surrounding circumstances of The fact that a defendant charged with seducthis case whether the original meeting was | tion is now allowed to testify on his own behalf honorable, or whether, if he made a promise of does not repeal this provision of the Act of 1860. marriage, it was made for an honorable pur- | It is urged, however, that this error was cured pose, and not for the purpose of deceiving this by the previous portion of the charge, in which young lady and gaining her affection so that the law upon this subject was correctly ruled. he might have illicit connection with her." | If we take the charge as a whole, we find this (Fourth assignment of error.)
point ruled both ways. Unfortunately, the erThe jury found a verdict of guilty in man- | roneous ruling was the last, and therefore likely ner and form as indicted.”.
to have made a lodgment with the jury. We The court discharged a rule for a new trial, cannot say it did no harm in view of the conand sentenced the prisoner to a fine of $500 and viction of the plaintiff in error, and the very costs, and one year and six months' imprison- feeble corroboration of the prosecutrix upon the ment at labor by solitary confinement.
question of the promise of marriage. On November 28, 1881, a special allocatur The learned judge also erred in charging: having been obtained, defendant took this writ“It is contended that this case requires the esof error and certiorari, assigning for error the sentials so far as the making of presents, writaction of the court in overruling the defendant's | ing of love letters, and of all such things that motion to take the question of seduction from pass between young people, to make out this the jury, and the portions of the charge of the case. But we have long passed that day, so far court above cited.
as courtship is concerned. * * * One man may For plaintifl' in error, C. Smith, Esg.
desire to court the girl he desires to make his Contra, J. F. Connolly, Esq.
wife in a secluded place, or he may desire to
keep it quiet; another may be in the habit of Opinion by PAXSON, J. Filed March 6, 1882. | keeping company with a young lady, and ap
The plaintill in error was convicted in the pear upon the public highway from time to court below of the offense of seduction. The time so that all may see him; hence, there is