Imagens da página
PDF
ePub

act did not apply, because the defendants were not carriers of the trunk by land, the trunk having been accepted to be carried partly by land and partly by sea. But LOPES, J., rightly held that the contract was divisible, and that the trunk was lost, within the meaning of the act, directly it was on the road to the Victoria Docks instead of to Liverpool. As an authority for this position he referred to Le Conteur v. London, etc., R. Co., L. R. 1 Q. B., 54, to which we may add references to Pianciani v. L. & N. W. R. Co., 18 C. B., 225; Baxendale v. Great Eastern R. Co., L. R. 4 Q. B., 244; Moore v. Midland R. Co., 8 Ir. L. T. Rep., 165; Doolan v. Midland R. Co., L. R., 2 H. L. 792, and London, etc., R. Co. v. James, L. R. 8 Ch. App., 241. Again, it was contended by the plaintiff that | the defendants were not entitled to the protection of the act, because they were wrongdoerswrongdoers in that they sent the trunk on the wrong road and not on the journey contracted for. But Morritt v. North Eastern R. Co., 1 Q. B. D., 302, affords an answer to that objection; BLACKBURN, J., saying: "Unless it is proved the misdelivery was intentional, the case is within the act;" and MELLISH, L. J., saying: "If goods by negligence of the carrier are carried beyond the point of destination and injured, this is within the Carriers Act."

arrival of the defendants' train, sought to recover the costs of a special train which he had engaged. MELLISH, L. J., said: "Now one mode of determining what, under the circumstances, was reasonable, is to consider whether the expenditure was one which any person in the position of the plaintiff would have been likely to incur, if he had missed the train through his own fault, and not through the fault of a railway company. I think the plaintiff would have gone to the same expense and bought the same articles for the use of his wife if there had been no railway company to look to, and if the trunk had been lost by his own fault. There was nothing extravagant or unreasonable in his so doing. I do not think these damages too remote." This conclusion seems to us to be fortified by the cases of Walton v. Fothergill and British Columbia Saw Mill Co. v. Nettleship, to which we referred at the outset; the former case seeming to hold that, if the plaintiff, in order to perform a contract, was forced to buy other goods at an increased price, in consequence of the non-arrival of those which the defendant had contracted to carry, this would be such a natural result of the defendants' neglect as to entitle him to recover his loss; while in the latter case the court considered the plaintiffs entitled to recover the sum necessarily expended in replacing the lost box of machinery there in question. Nor can we any longer deem it doubtful that in Eyre v. Midland Great Western R. Co., 15 Ir. L. T., 291, the plaintiff would have been entitled to recover for the loss incurred by having to replace the personal necessaries contained in his trunk.

RECENT CRIMINAL CASES.

Defenses-Former Jeopardy.

-On indictment for murder against two, a verdict of acquittal on the evidence being ren

But, lastly remained the question whether the plaintiff was entitled to recover the £10 for repurchase of other articles in Rome at enhanced prices, irrespective of the Carriers Act-the plaintiff contending that the act did not apply to that part of his claim. "I think the plaintiff is right," said LOPES, J., "for this is not a loss by the carrier of the trunk, nor an injury to its contents, but damages sustained by the owner in consequence of the non-delivery within due time; it is something consequential to its loss. I do not think this £10 is within the protection of the Carriers Act. But the defendants say if it is not within the protection of the Carriers Act, 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 and necessary act of the plaintiff to buy these articles in Rome. This is a question of fact which I have to decide, and I think it was both the reasonable and necessary consequence of defendants' failure to deliver, that plaintiff should purchase what he did in Rome-a necessity arising from the non-delivery of a trunk which the defendants might fairly assume contained wearing apparel. The observations of MELLISH, L. J., in the case of Le Blanch v. London, etc., R. Co., 1 C. P. D., 286, are not inapplicable here. That was a case where a passenger, delayed in his journey by the want of punctuality in the

murder in the second degree, which judgment was reversed on error, at the instance of the latter, because the record showed a fatal defect in the formation of the grand jury by which the indictment was found, though no objection was raised to it in the court below on that account, the verdict and judgment operate as a bar to another prosecution of the defendant who was acquitted, and are available to him under the plea of former acquittal; and as to the other defendant, when again indicted, operate as a bar to a prosecution for murder in the first degree.-Ala. Supreme Court. Berry v. State, 65 Ala., 117.

Supreme Court, Penn'a.

FRANKENFIELD'S APPEAL.

The committee of a lunatic can only protect himself from risk when he invests the trust funds in real or government securities, or makes the investment in pursuance

of an order of the court. Where a person makes a deposit in a savings fund, receiving a certificate in return, by the terms of which he is to be entitled to draw the money with interest at three months from date, on giving thirty days' notice of his intention so to do, this is to be regarded properly as an investment and not as a deposit. Where the committee of a lunatic invests money belong

ing to the lunatic's estate in the above manner, and afterwards the savings bank becomes insolvent and fails to refund the whole sum so invested, the committee will be held responsible for the loss.

Where the committee of a lunatic files a final account, after the lunatic's death, the Court of Common Pleas has no jurisdiction to distribute the estate among the deceased lunatic's next of kin, but must award the same to his personal representative, to make distribution according to law.

Appeal of Samuel A. Frankenfield from a decree of the Court of Common Pleas of Lehigh county, dismissing his exceptions to and confirming the report of an auditor appointed by the court to audit appellant's final account as committee of Samuel Frankenfield, a lunatic.

The following were the facts of the case, as reported by the auditor: On October 31, 1870, Samuel Frankenfield was duly adjudged a lunatic, and Samuel A. Frankenfield was appointed as committee of his estate. On November 8, 1876, certain money belonging to the lunatic was paid to Samuel A. Frankenfield, who, on November 11, 1876, having previously consulted his counsel, deposited $2,000 thereof in the Franklin Savings Bank of Allentown, receiving the following certificate:

[blocks in formation]

D. H. MILLER, Per J. E. Z., President.

Cashier, The savings bank had a capital of $20,000, of which $5,000 were paid in. It was at the time of the deposit actually insolvent, but had the reputation in the community of being a safe and solvent institution. In April, 1877, it closed its doors, and made an assignment for the benefit of creditors. Samuel A. Frankenfield then employed counsel to bring suit against it, and recovered the sum of $1,000. He paid to his counsel $60 for professional services in this suit.

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 by him in the savings bank, which had not been repaid him, and also for the $60 counsel fee paid by him. The auditor being of opinion that the deposit in the savings fund was unauthorized and illegal, declined to allow the accountant credit for those items, and surcharged him in the sum of $1,060. He also reported a decree of distribution among the next of kin of the lunatic.

Frankenfield filed exceptions to this report, on the ground, inter alia, that he should have been allowed the credits claimed by him. The court, in an opinion by ALBRIGHT, P. J., dismissed the exceptions and confirmed the report, whereupon Frankenfield took this writ, assigning for error, inter alia, the surcharging him with the sum of $1,060, and the distribution of the estate to and among the heirs of the lunatic. For appellant, Messrs. Edward Harvey and W. H. Sowden.

Contra, John Rupp, Esq.

Opinion by GREEN, J. Filed April 3, 1882.

In this case the appellant, who was the committee of a lunatic, having trust funds in his hands, made a deposit of $2,000 thereof in the Franklin Savings Bank of Allentown, Pa., and took a certificate therefor in the following from: Certificate of Deposit.

Franklin Savings Bank, Allentown, Pa., November 11, 1876.

STAMP.

[blocks in formation]

The deposit was made in the name of the committee as such, it was done by the advice of counsel, and at the time of the transaction the bank was in good repute. So far, therefore, as these considerations affect the question of the appellant's liability for the loss of the money by reason of the insolvency of the bank, it must be conceded at once that no liability would arise. There was no bad faith on the part of the appellant, and although the bank was really insolvent when the deposit was made, that fact was not known in the community. The question at issue is thus reduced to the narrowest limits. If this had been an ordinary deposit, subject to the check of the depositor from the day it was made, it is very probable the appellant would not have been liable. But it was not such a

J. W. PORTER, Defendant Below, v. A. ZEIT-
INGER & P. ZOPPI.

Where a factor is instructed to sell goods upon credit, and in his letter of instruction is informed that his principal will dispose of the note of the purchaser, the factor will be liable to his principal for the amount of the note, if, instead of transmitting it to his principal, he takes it in his own name and has it discounted himself.

Error to the Court of Common Pleas, No. 1, of Allegheny county.

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 transaction. It is a loan still, just as it would have been had the depositary been a citizen or a firm of the greatest wealth, or a manufacturing or business corporation of large capital and resources. In these latter cases the security would apparently have been greater, for the capital of this bank was actually very small. The distinguishing feature of the case is, that even if the money be regarged as deposited in the technical sense, it was also loaned, and hence was subject to the qualities and incidents of a loan superadded to those which belonged to it as a deposit. Nor does the brevity of the time affect the question. There could be no difference in principle between a deposit payable in three months and one payable in twelve or twenty-four months, when the question relates only to its character as a loan. This being so, the law regulating investments by committees of lunatics becomes applicable to the case and controls it. The Act of June 12, 1836, 25, expressly directs that such investments must be made under the direction of the Court of Com-ceeding $14,000. To secure himself for the inmon Pleas, and only exempts the committee from liability for loss when he pursues this course and in good faith: Purd. Dig. 983, pl. 25. In Hemphill's Appeal, 6 Harris, 303, it was formally and definitely settled that a trustee can only protect himself from risk when he invests the trust fund in real or governmental securities or makes the investment in pursuance of an order by the court. On p. 306, BLACK, C. J., says: "It has never been doubted anywhere that a loss which accrues of a trust fund, invested on personal security, must be borne by

the trustee." These considerations determine that the auditor and court below were right in holding the appellant liable for the loss of the sum of one thousand dollars, deposited with the Franklin Savings Bank.

The decree of distribution, however, cannot be sustained. It was entirely without authority, as the Court of Common Pleas has no jurisdiction to distribute the estate of deceased persons. The fund can be paid to the legal representative of the deceased lunatic, whenever such a person

Zeitinger & Zoppi, during the years 1874 and 1875 and subsequent thereto, were engaged in the manufacture of iron blooms, etc., in St. Louis, and J. W. Porter at the same time was an iron commission broker in Pittsburgh. Porter occupied the relation of a factor towards Zeitinger & Zoppi, receiving consignments directly from them, making advances thereon and carrying the proceeds of sales to their credit. In the early part of 1875, Zeitinger & Zoppi were indebted to Porter for advances in a sum ex

debtedness, Porter had on hand a large quantity of blooms, the property of his principals. His principals were anxious to sell to Rogers & Burchfield, a firm doing business in Pittsburgh, a bill of goods, including the blooms in Porter's custody, but Porter, believing Rogers & Burchfield to be insolvent, was unwilling to make the sale. Porter then received the following letter from his principals:

"SOUTH ST. LOUIS, MO., June 5, 1875. "MR. J. W. PORTER, Pittsburgh, Pa.,

notify you that if you can sell one hundred tons blooms

"Dear Sir:-We refer to our last letter, and hereby

to Rogers & Burchfield we will take the paper and the
risk. In this case if you have not enough double blooms
on hand we will send the balance. We are informed by
parties we are dealing with in pig metal that they will

take any paper of the above-named firm, and therefore
if you can effect any sales please do so at the best
market price.
Yours truly,

"ZEITINGER & ZOPPI."

Acting under this authority, Porter sold to Rogers & Burchfield, taking their note at four months, payable to his own order. This note he discounted and the proceeds he carried to

the credit of Zeitinger & Zoppi, charging them with the discount. Before the maturity of the note Rogers & Burchfield failed and were thrown into bankruptcy.

Porter notified his principals to prove their claim against Rogers & Burchfield, but they refused to do so, claiming that they were not concerned in the matter.

Upon a final settlement between Porter and his principals there was a balance due to them, provided the note in question should be charged against Porter, and claiming that the note should be so charged, Zeitinger & Zoppi brought this action to recover the balance in their favor. The errors assigned were as follows:

1st. The court erred in affirming the second point of plaintiffs below, to wit: "That the letter of June 5, 1875, did not authorize the defendant to sell to Rogers & Burchfield at plaintiffs' risk, except upon condition that the paper received should be made and delivered to them." Affirmed.

2d. The court below erred in charging the jury as follows, to wit: "The instructions in the letter, taken alone, certainly were not complied with; that is very plain from the evidence. The letter says: 'If you sell them we will take the paper and the risk.' Good faith required if Mr. Porter sold under that title, that he send the plaintiffs the paper, or notify them, if he took it in his own name, that he had sold and the paper was at their disposal."

3d. The court below erred in charging the jury as follows, viz: "It is alleged that in Rogers & Burchfield's bankruptcy proceedings, Mr. Porter proved the note as his own claim, as if it was his own property, and it is very plain to the court, from all of these facts, that there was no compliance with the letter, and therefore the risk ought not to be the plaintiffs' but the defendant's."

[blocks in formation]

The fact that by the Act of April 3, 1872, 1, Purd., 625, a defendant charged with the commission of a crime or offense, not above the grade of misdemeanor, is a competent witness, and may testify in his own behalf, does not repeal the Act of March 31, 1860, 41, Purd., 326, which provides that in prosecutions for seduction, the promise of marriage "shall not be deemed established unless the testimony of the female seduced is corroborated by other evidence, either circumstantial or positive."

What is sufficient circumstantial evidence from which a jury may infer a promise of marriage, discussed and passed upon.

Error to the Court of Quarter Sessions of Lackawanna county.

Indictment against Frederick Rice for the seduction of Margaret Robertson under promise of marriage. Plea, not guilty.

On the trial, before HANDLEY, P. J., it was admitted that the defendant had had illicit connection with Miss Robertson, and that she was under the age of twenty-one years at the time the said illicit connection took place. Miss Robertson testified that she had been seduced by defendant under a promise of marriage. There was no directly corroborative evidence of this allegation. It was shown that she and the defendant had become acquainted with each other about a year prior to the first connection between them; that thereafter the defendant had accompanied her home from church every Sunday night, that they sometimes took evening walks together, but that Rice almost always left her at the gate, never entering the house, with the exception of three or four times during the year. There was some evidence which went to

For plaintiff in error, defendant below, Messrs. show that the defendant admitted a promise

S. Schoyer, Jr., and West McMurray.

Contra, Messrs. Slagle & Wiley.

PER CURIAM. Filed October 17, 1881.

It may be conceded that a factor selling on credit and taking a note in his own name, does not by that alone, become liable to his principal in case of the purchaser's failure. The rule, however, is different if the factor negotiates it for his own use. We think the true construction of the written authority under which the plaintiff in error acted, was in case of a sale, to transmit the note to his principals. Their clearly implied intention was to dispose of it to parties with whom they were dealing. Instead of so doing, he caused it to be discounted,

to marry.

At the close of the testimony on the part of the Commonwealth, the counsel for defendant moved to take the case from the jury, so far as it related to the question of seduction. Motion overruled. Exception. (First assignment of error.)

The defendant then testified in his own behalf, denying that he had made any promise of marriage to induce Miss Robertson to consent to the illicit connection. Other evidence was given to show that the girl was a loose character, and went by the name of “the regular.”

The court charged the jury, inter alia, as follows: "It is contended that this case requires the essentials so far as the making of presents,

writing of love letters and all of such things that pass between young people, to make out this case. But we have long passed that day, so far as courtship is concerned. There is no doubt but that in the early history of these cases, when the defendant was not permitted to go upon the witness stand and not allowed to testify, there should be corroborative evidence to sustain the charge made by the young lady of the promise of marriage, but in our day and generation, when a defendant may go upon the witness stand and may testify equally as well as the prosecutor, then of course these essentials are not absolutely necessary, although they may yet appear in the case. The proper way to dispose of causes of this kind is to take each case as it stands on its own four legs, take the case as the parties built it up, keeping in mind their standing in society and their immediate manner of courtship." (Second assign. ment of error.)

"One man may desire to court the girl he desires to make his wife in a secluded place, or he may desire to keep it quiet; another may be in the habit of keeping company with a young lady and appear upon the public highway from time to time so that all may see him, hence there is no standard, each case must stand on its own four legs as the parties built it up." (Third assignment of error.)

"Now it is for you to say from all of the evidence and the surrounding circumstances of this case whether the original meeting was honorable, or whether, if he made a promise of marriage, it was made for an honorable purpose, and not for the purpose of deceiving this young lady and gaining her affection so that he might have illicit connection with her." (Fourth assignment of error.)

The jury found a verdict of "guilty in manner and form as indicted.”

The court discharged a rule for a new trial, and sentenced the prisoner to a fine of $500 and costs, and one year and six months' imprisonment at labor by solitary confinement.

On November 28, 1881, a special allocatur having been obtained, defendant took this writ of error and certiorari, assigning for error the action of the court in overruling the defendant's motion to take the question of seduction from the jury, and the portions of the charge of the court above cited.

For plaintiff in error, C. Smith, Esq.
Contra, J. F. Connolly, Esq.

Opinion by PAXSON, J. Filed March 6, 1882. The plaintiff in error was convicted in the court below of the offense of seduction. The

[ocr errors]

record having been brought into this court for review, several errors have been assigned to the rulings of the learned judge, the most material of which are the second and third.

It was palpable error to instruct the jury that evidence to corroborate the prosecutrix in regard to the promise of marriage is no longer necessary. Upon this point the learned judge charged : "There is no doubt but that in the early history of these cases, when the defendant was not permitted to go upon the witness stand and not allowed to testify, there should be corroborative evidence to sustain the charge made by the young lady of the promise of marriage; but in our day and generation, when a defendant may go upon the witness stand, and testify equally as well as the prosecutor, then of course these essentials are not absolutely necessary, although they may yet appear in the case. The proper way to dispose of cases of this kind is to take each case as it stands on its own four legs, take the case as the parties built it up, keeping in mind their standing in society and their immediate manner of courtship."

The 41st section of the Act of 31st March, 1860, P. L., 394, which defines the offense of seduction, expressly provides "That the promise of marriage shall not be deemed established unless the testimony of the female seduced is corroborated by other evidence, either circumstantial or positive."

The fact that a defendant charged with seduction is now allowed to testify on his own behalf does not repeal this provision of the Act of 1860. It is urged, however, that this error was cured by the previous portion of the charge, in which the law upon this subject was correctly ruled. If we take the charge as a whole, we find this point ruled both ways. Unfortunately, the erroneous ruling was the last, and therefore likely to have made a lodgment with the jury. We cannot say it did no harm in view of the conviction of the plaintiff in error, and the very feeble corroboration of the prosecutrix upon the question of the promise of marriage.

The learned judge also erred in charging: "It is contended that this case requires the essentials so far as the making of presents, writing of love letters, and of all such things that pass between young people, to make out this case. But we have long passed that day, so far as court ship is concerned. *** One man may desire to court the girl he desires to make his wife in a secluded place, or he may desire to keep it quiet; another may be in the habit of keeping company with a young lady, and appear upon the public highway from time to time so that all may see him; hence, there is

« AnteriorContinuar »