the plaintiff; whereupon the defendant took this writ, assigning for error, inter alia, the answers to points, and the judgment of the Court as above given. S. Hepburn, Jr., and S. Hepburn, for plain tiff in error. Act of April 9, 1856, sec. 1, Purd. Dig. 285, pl. 21. Rathbone v. Tioga Nav. Co., 2 W. & S. 74. Irvine v. Bank, 2 W. & S. 190, The defendant dealt with the corporation as such, and is estopped from denying its existence. Cong. Soc. v. Perry, 6 N. H. 164. Dutcher's Manf. Co. v. Davis, 14 Johns. 238. This is not an attempt to set up a mere defective organization as a defence to an honest debt. The plaintiff's right to recover depends on its legal existence as a corporation. The defendant, as indorser, had rights secured under the charter May 24, 1880. THE COURT. A corporation of 1868, which the plaintiff sought to evade by is the mere creature of the law. It can exercise setting up a pretended new charter, in violation no powers which are not expressly conferred or of all law as to the dissolution of one corporation necessarily implied in furtherance of the object and the creation of a new one. It is a new prin- of its creation. (Diligent Fire Co. v. Com'th, ciple to admit acts done by one corporation to prove the creation of another, when none of the 25 P. F. Smith, 295.) When, however, a charconditions precedent, required by law, have ter has actually been granted to certain persons to act as a corporation, and they are actually in been complied with. The manner in which the possession and enjoyment of the corporate corporations may be dissolved and charters sur- rights granted, such possession and enjoyment rendered is fixed by statute. will be valid against one who has dealt with them in their corporate character. (Angell and Ames on Corp., § 80.) He cannot be permitted to prove, in a collateral proceeding, that a condition precedent to its full corporate existence has not been complied with. As against him, the charter and a user of rights claimed to have been When there is a conferred by it, are sufficient. de facto corporation, and the State does not interfere, its corporate existence and its ability to contract cannot be questioned in a suit brought upon an evidence of a debt given to it. (Commissioners v. Bolles, 4 Otto, 104.) It is well settled, that although a charter may be declared null and void by the proper authority, yet the violation thereof cannot be determined in a collateral suit. (Irvine v. Lumberman's Bank, 2 W. & S. 190.) Green's Brice's Ultra Vires, 651, and note. Potter on Corporations, sec. 703. The special Act of 1861 was not a re-charter, nor a supplement or amendment of the existing charter. It contemplated the organization of a bank in the usual way, and the intention of the corporators cannot affect the intention of the Legislature. It directed the capital of $100,000 to be divided into 2000 shares, to be paid in such instalments as the bank should by its by-laws direct. There having been no bona fide organization under the new charter, it was invalidated by the Constitution of 1874, Art. xvi., Sect. I. The plaintiff failed to show that it was a legally organized corporation, but did show that the old "Farmers' Bank" is in existence, and that that bank, by violating its charter in taking usurious discount, by the terms of its charter forfeited the whole debt and interest. W. F. Sadler and L. Todd, for defendant in error. Where a charter is granted to named corporators by a special Act of the Legislature, creating a corporation in presenti, they become a corporation immediately on the passage of the Act, and the production of the charter is proof of incorporation. The omission to do certain acts directed by such Act, though possible cause for dissolution by the commonwealth or the courts, does not, ipso facto, affect the corporate status, and cannot be inquired into collaterally. The omissions here were of directory provisions only, and would not support a quo warranto. Potter on Corp., sec. 66. Talladega Ins. Co. v. Landers, 43 Ala. 115. The facts show the bank has professed to carry on all its business under the Act of 15th of On the 1st of May, 1871, it March, 1871. reported to the Auditor-General that it had ceased to act under its former charter, and commenced operations under the Act of 15th of March, 1871. It transferred all the stock and assets of the former corporation to the present one. It gave up the exercise of all powers under the old charter, and has continuously used and exercised the powers given by the new charter. Although it has been done in an irregular manner, yet it lies not with the plaintiff in error to question its powers in this transaction and in this suit. Judgment affirmed. Opinion by MERCUR, J. SHARSWOOD, C. J., and GREEN, J., absent. Jan. '80, 118. Duncan's Appeal. May 14, 1880. Duncan v. Pennsylvania Railroad Co. Preliminary injunction When properly refused -Bill to restrain Pennsylvania Railroad Company from building railroad in a public street in Philadelphia. Appeal from a decree of the Common Pleas No. 2, of Philadelphia County, refusing a preliminary injunction. This cause was fully reported, in the Court below, 7 WEEKLY NOTES, 551, Q. V. The Court having refused to grant a preliminary injunction, this appeal was taken, under the provisions of the Act of June 12, 1879 (P. L. 177), and on motion the record (with the record of two similar cases) was certified to the Middle District for argument at the May Term (see 8 WEEKLY NOTES, 340). The only assignment of error was the refusal to grant a preliminary injunction. M. Hampton Todd and D. T. Watson. for appellant. Subsequently to this, at an annual meeting of the board of directors on January 14, 1878, at which the plaintiff was not present, the above by-law was amended by the enactment of the following additional clause : rebuild the property injured or destroyed by fire.” On October 17, 1879, the plaintiff's barn was destroyed by fire, and at or about the expiration of the ninety days which the company had, under the by-laws, within which to settle the loss, the defendants claimed the right to rebuild, and proceeded, against the plaintiff's consent, to deposit materials, etc. on plaintiff's premises for that purpose, and began work. The plaintif claimed the insurance money in cash, and on refusal of his demand brought this suit. The defendants filed a plea in abatement, alleging that they were rebuilding as provided for by said amended by-law. The plaintiff replied that said amendment was passed more than a year and a half after the policy was issued; that plaintiff was not present at the time of its passage, and never subsequently consented that said by-law should change, modify, or forfeit his rights under re- the said contract. To this replication defendap-ants demurred, and joinder. Wayne Mac Veagh and John Scott, for appellee. May 24, 1880. THE COURT. Decree fusing preliminary injunction affirmed, and peal dismissed at the costs of the appellants. PER CURIAM. SHARSWOOD, C. J., and GREEN, J., absent. N. H. Larzelere, for plaintiff. Jan. 15, 1881. THE COURT (after reciting the facts). The question presented by this record is, whether the defendant corporation has the right, under the 18th section of the by-laws, as amended, to rebuild the burnt premises. It re Common Pleas-Law. solves itself into another inquiry, which is, C. P. of Montgomery Co. Nov. 30, 1880. Bradfield v. Union Mutual Insurance Co. Mutual insurance companies-Dual relation of insured member to the company-Contract rights under the policy, and liabilities as corporator-A by-law, authorizing company to rebuild, passed subsequently to date of policy, binds one in his relation of corporator, but does not affect his rights under the policy to recover the amount insured in cash. Sur demurrer to replication. Covenant, on a policy of insurance issued by the company defendant to the plaintiff, insuring the plaintiff's barn and other buildings against loss by fire. At the date of the policy, August 23, 1876, the 18th section of the by-laws provided as follows: whether a mutual fire insurance company can, by an amendment to their by-laws, change or alter the contract made with one of their mem bers, in pursuance of the charter and by-laws existing at the time the contract was made? carefully borne in mind that one insured occuTo answer the question correctly, it must be pies a dual relation to the association: (1) as a member of the company-a corporator; (2) as Co. v. Connor, 5 Harris, 142; Rosenberger ". a contracting party with the corporation. (Ins. Fire Ins. Co., 6 Norris, 207; Revere v. Boston Copper Co., 15 Pickering, 363.) As a co-porator simply, he is bound by the acts of the majority, and his corporate rights are subject to the authority of the corporation. As one insured by contract with the company his rights stand entirely free from such control. The distinction is well drawn by TRUNKEY, J., in Rosenberger v. Fire Ins. Co. (6 Norris, 212). It is there said: "They are, as members, sub"Damage by fire shall be valued by the committee ject to liabilities, and entitled to privileges; a appointed for that purpose at the actual damage sustained, member may participate in its benefits; is prewithout reference to that which was not destroyed, pro-sumed to know its rules and regulations; its books are evidence against him; and he shall vided it does not exceed the whole amount of insurance thereon." bear his proportion of burden. His corporate | of it. But if it is said that the object of the inrights may be subject to the control of the cor-surance is to protect the insured against loss, and poration; but his rights as a party insured rest that, if the burnt building be replaced, he is upon the contract." "Assurer and insured are made whole, and the object intended to be proalike bound by the charter; and neither can do vided for is substantially attained. But if one what it does not authorize; nor can either contracts with a tailor for a suit of broadcloth, change a by-law so as to modify the contract and in fulfilment he has given to him a suit of without the other's consent." To the authorities Lyons velvets of equal or greater value, it canalready cited may be added Flanders on Insur- not be pretended that the contract is executed. ance, 20, 218; and it seems to be clear, that no An insurance to be paid in money is almost by-law can be made which will abrogate the con- totally different from an insurance to rebuild. It tract, or by its effect forfeit the rights of a cor- changes the rights of the insured, and directs a porator in his contract relations. value for which he contracted as an indemnity to a special purpose, when, by the terms of the agreement, it was to be at his absolute disposal. It compels him to accept a similar structure upon the same site, with materials partly new and partly old; whereas, by this contract, he could have either devoted the money to another purpose, selected a different site, and remodelled his building in accordance with his own taste, or the existing architectural fashion. It seems clear, therefore, upon general reasoning, that the amendment involves a material alteration and modification of the original contract, short, it is true, of forfeiture, but changing the contract essentially. This being true, the next question that presents itself is, whether the alteration and amendment of the by-law in the case at bar is within the rule laid down. It does not present a forfeiture such as was worked by the operation of the amendment in Insurance Co. v. Connor; and, in the Supreme Court, that case was ruled by LEWIS, C. J., upon the distinct ground that a forfeiture was wrought by its operation. There is no case in Pennsylvania where the point raised here is decided, though TRUNKEY, J., arguendo, declares, in the opinion already cited, "nor can either change a by-law so as to modify the contract, without the other's consent," and refers to Ins. Co. v. Connor as the authority for this statement of the law. The question, being an open one, must be determined either by an application of principles or by rulings upon kindred questions in other States. Tested first, by the former, it would seem that if contract rights are altered or greatly modified by the amendment, it ought not to affect the holder of a prior insurance. If it can, then contract rights are altered or greatly modified or destroyed by what, in fact, is ex post facto legislation. This is well illustrated by the reasoning of C. J. LEWIS in Ins. Co. v. Connor (5 Har. 143), who says: "What security is there in a policy of insurance which is liable to be declared forfeited by one party without the consent of the other? The chances of indemnity against loss would be diminished by such an uncertain provision. If this be established as the law which is to govern contracts with mutual insurance corporations, it will be destructive of all business transactions with them. Its tendency would be to defeat the chief object of the party who effects an insurance. The recognition of the power claimed in this case by the plaintiff in error would be injurious to the interests of insurance companies, contrary to the principles upon which they are founded, and dangerous to the just and equal rights of the citizen." This is at once contrary to law and against public policy. But the question is not without the guiding light of authority. In Flanders on Fire Insurance, p. 20, it is laid down as elementary law, "that where the assured has duly become the member of a mutual insurance company, and the company subsequently make by-laws without his consent, which are in conflict with the charter, and which would, in fact, change and impair his rights under the contract, such by-laws are void as to him." (Citing Ins. Co. v. Harvey, 45 N. H. 292.) Here the by-law, it is true, is not in conflict with chartered rights, but it does change and impair his rights. The same doctrine is again succinctly declared by the same author, page 218 (citing Mutual Fire Ins. Co. v. Butler, 34 Maine, 451); and the very question at bar seems to have been ruled in Wallace v. Ins. Co. (4 La. 289). Flanders, in citing the case, p. 569, states its conclusion as follows: "An insurance company has no right to rebuild, or replace the articles lost, unless the right is expressly given in the policy; otherwise they would have the right to change the contract, and substitute one mode of performance for another." The case cited by the author will be found in 1 Bennett's Fire Ins. Cases, 414. The whole doctrine of the right to make bylaws is to be determined by the fact that it is purely a legislative power, and is restricted and It is difficult to distinguish, under this reason- limited by the constitutional and statute law of ing, the difference between a forfeiture of the the State in which it is established, as well as by contract and a material alteration or modification | the general principles and policy of the common law as it is there accepted. (Angell and Ames on Corp., chap. x.; Revere v. Boston Copper Co., 15 Pick. 363; Bank v. Baker, 4 Metc. 176; Savings Institution, 1 Wh. 468; Ins. Co. v. Harvey, 4 Am. Law Reg. N. S. 508; Slee v. Bloom, 19 Johns. 456.) It is, therefore, concluded by the Court, that this by-law, while it controls the plaintiff as a corporator, and in that relation is binding upon him, does not and cannot affect his contract relations under his contract as evidenced by his policy: (1) because, being passed without his assent, it is, as to him, ex post facto; (2), because it materially modifies and changes his contract rights. This being true, it follows that judgment upon the pleadings must be entered in favor of the plaintiff and against the defendant quod respondeat ouster. Opinion by Ross, P. J. C. P. No 4. Dec. 17, 1880. We contend that it was our right to have the goods appraised, that in the event of other and sufficient goods belonging to the tenant being found on the premises, the landlord could have satisfied his claim for rent without depriving us of our property. The tenant could not, as agent for the owner, have either waived the appraisement, or given the landlord permission to leave the goods on the premises. Briggs v. Large, 6 Cas. 287. for rent, and the distraint having been made, he Besides, in this case, no sale was had, and complaint cannot be made as to the waiver of thereby. The waiver of appraisement did not appraisement, for the plaintiff was not injured and could not vitiate the distraint, but at the most would have vitiated a sale thereunder. McKinney v. Reader, 6 Watts, 40. Non constat but that, before the sale had been made, there would have been an appraisement. The fact that the landlord evinced an intention to proceed and sell does not affect the matter. Johnson v. Black. Landlord and tenant-Distress-ReplevinFailure to appraise goods distrained where no sale has been made-Act of March 21, 1772. Motion for judgment non obstante veredicto. Edward P. Johnson leased certain premises from John Black, by lease dated October 1, 1878. On June 1, 1879, the tenant was four months in arrears for rent. On June 17, 1879, distress was made for the rent due. On June 23, the tenant waived an appraisement of goods. On June 27, January 22, 1881. THE COURT (after stating the goods were replevied by John J. Johnson, the facts). It is now contended that the tenant the present plaintiff. On the trial it was proved could not waive the appraisement as to the goods that the goods were the property of the plaintiff of a stranger, and, as the landlord did not apat the time of the levy; that notice of said ownership was given by the tenant to the bailiff at the time the levy was made, and that the tenant waived an appraisement of the goods. The jury rendered a verdict for defendant, the Court reserving the following points: "The landlord having notice at the time that the distress was made that the ownership of the goods was in a stranger and not in the tenant, was he not bound to make an appraisement according to the terms of the Act of Assembly of March 21, 1772, and did not his failure to appraise the said goods render him a trespasser so far as the property of the stranger was concerned ?" W. M. Mervine, for plaintiff. The landlord, failing to make an appraisement of the goods in question, became a trespasser ab initio; the tenant, being a bailee of the goods, had no authority to waive an appraisement. The landlord had no authority to enter upon the premises unless under the authority of the law which regulated the manner of taking a distress. The Act of 1772 makes it imperative that an appraisement be made after five days. C. A. V. praise the goods before the replevin, he has no claim thereon for his rent. The first of these propositions is undoubtedly correct (see Briggs v. Large, 30 Penna. St. 287); but we do not see that there is anything in either the statute or the common law which requires a landlord to appraise the goods distrained within any period save a reasonable time, and at least six days be fore sale of them under his warrant. By the Act of Assembly of 21st March, 1772, it is provided: "Where any goods or chattels shall be distrained for any rent reserved upon any demise, and the tenant or owner shall not, within five days after such distress, replevin the same, then, on the expiration of said five days, the person distraining shall and may cause the goods and chattels so distrained to be appraised, and after such appraisement shall or may, after six days' public notice, lawfully sell the goods and chattels." There can be no necessity for an appraisement where the goods are replevied, the object of the appraisement being that the tenant may know the sum at which he can redeem his goods. Our Act of Assembly follows that of The claim of the church was disallowed, to which finding exceptions were filed. 2 Wm. & Mary, § 5, and under that it has been | for $500. Miss Stokes died within one calendar decided that the landlord, upon the expiration of month after making the subscription. No work the five days, is allowed a reasonable time after-was done or contract made for the completion wards for the appraisement and sale (Pitt v. of the building till August, 1879. Shew, 4 B. & A. 206). The cases which determine that the landlord becomes a trespasser for a failure to appraise the goods, arise solely when he has made a sale of the property. Judgment is, therefore, ordered in favor of the landlord (the defendant) on the point reserved. A promise in aid of a charity will not be sustained by the moral obligation alone-A joint voluntary promise may be, retracted at any time before the requisite fund is secured, unless some responsibility upon the faith of the pledge has been incurred in the mean while. Quare, Whether a promise inter vivos in writing to pay money to a charity at a future date is avoided by the death of the promisor within a month of the date of the promise, and before the date of payment-Act of April 26, 1855. Sur exceptions to adjudication. A. F. Custis, for the exceptions. A moral obligation is a sufficient consideration to support an express promise, and will sustain an action. A subscription to erect a church raises such a moral obligation. Caul v. Gibson, 3 Barr, 416. Ryerss v. The Congregation, 9 Cas. 114. Shober's Admrs. v. The Park Asso., 18 Sm. 429. Hart's Est., 7 WEEKLY NOTES, 162. The subscription in question was not a solitary but a mutual one, and a consideration therefor was the subscription of previous subscribers. Hart's Est., supra. Helfenstein's Est., snpra. Edinboro' Acad. v. Robinson, supra. The offer or promise of the decedent had been accepted by those authorized to receive the same, and thereby became irrevocable. Helfenstein's Est., supra. This case does not fall within the rule laid down in Phipps v. Jones (8 Harris, 260), and Baird's Est. (7 WEEKLY NOTES, 439). In these cases no organization had been effected, no subscription paid, and nothing done at the time of the death of the promisor. In this case an Mary G. Stokes, the decedent, died in December, 1878. Upon the audit of the account organization had been perfected, and $6000 had of her executors a claim on the estate was pre-been paid by one of the subscribers before the sented by the First Baptist Church of Philadel-death of Miss Stokes. phia, upon a note or instrument in writing signed by the decedent and reading as follows:"$500. : Phila., Nov. 13, 1878. I hereby subscribe to the Building Fund of the Grace Baptist Church Five hundred dollars. Payable to the treasurer of First Baptist Church on or before May 1, 1879. MARY G. STOKES." The date, amount, and signature were written in lead pencil, the rest being a printed form. The Grace Baptist Church of Philadelphia was organized in 1872, and in 1874 had partially erected an edifice on Berks and Mervine Streets at a cost of $22,000 when it was compelled to stop operations from want of funds. The building stood in 1878 under a temporary roof, and was subject to a mortgage of $6000. In order to finish the building, an appeal was made to the First Baptist Church, and a circular was issued in that congregation with blanks inclosed, reading as the above instrument. The provisions of the Act of 26 April, 1855, do not make void the act of the promisor in this case. That Act has reference to dispositions by will or deed, to take effect after the decease of the testator or alienor. E. L. Perkins, contra. There was no consideration to support the subscription. The note was dated November 13, 1878; the decedent died December 12, 1878. The subscription list was not then full, and no contract was made for the work till August, 1879. The death of the decedent under this state of facts worked a withdrawal and revocation of the subscription. No acceptance was made before her death. Phipps v. Jones, 8 Har. 260. Baird's Estate, 7 WEEKLY NOTES, 439. The testimony shows that the payment of $6000 was independent of the subscription list. It was to relieve the church from prior pecuniary difficulties. Neither decedent nor others subscribed to the subsequent appeal for aid on the faith of this gift. The testimony also shows that Miss Stokes gave Mr. Parker the above note nothing had been done by the church nor any Mr. Parker, acting as treasurer of the Building Fund, called on Miss Stokes after the circular had been issued, and told her that a friend of hers had given him $6000. |