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the stock as soon as the market price negligence on the part of the defendant, reached $50 per share. The plaintiff had and therefore the verdict must be for the been in the habit of dealing with the de- defendant.” Answer. “The evidence is fendant, whose business was that of buy for the jury. If they find there is no gross ing and selling Western lands and negoti- negligence on the part of the defendant, ating loans in the West. Nothing was and that defendant was a voluntary bailee said by the plaintiff in his letter, or was without hire, then the verdict must be for there any evidence of any subsequent the defendant.'' agreement between the parties as to what The Court in the general charge said, compensation, if any, the defendant should inter alia, "Is there any evidence that dereceive for his services. At this time the fendant contracted for or received any market price of the stock was about $46 compensation or reward for anything he per share. A few weeks later the price did in and about the selling or disposal of beginning to rise, the defendant took the this stock sent to him ? We have not certificate to the banking house of J. B. been able to perceive any, but that is a Long, in Lancaster, who transacted a question of fact for you. business of buying and selling stocks, with Court gives you the law on this point, hewhom Swartz was in the habit of dealing, cause as the Court comprehends the law and requested him to sell it as soon as it of this case it is a case of bailment, and would bring $50 per share. The defend the main inquiry for you is—What is the ant testified that he told Mr. Long it was duty and what is the responsibility of the on Hause's account. The proper market bailee, Mr. Swartz ?

bailee, Mr. Swartz ? Did he do or order for this stock being in Philadelphia, Mr. anything respecting those twenty shares Long sent the certificate to Glendenning, of stock that a man of common sense unDavis & Co., brokers, in Philadelphia, for der the circumstances would not do with sale as soon as it would realize $50 per his own stock ?

* If you find share. In November, 1872, Long failed, that the defendant, Mr. Swartz, was a and Glendenning, Davis & Co., to whom bailee for hire, in that case the bailee is he was indebted, sold out all the securities required to exercise great care, and is rewhich Long had placed in their hands, in- | sponsible for slight negligence. The cluding the twenty shares of stock be- Court has been unable to see that any hire longing to Mr. Hauser. The stock did was paid to the bailee, yet that is a quesnot, at any time, reach $50 a share. Hau- tion for you to decide on the evidence.ser, on January 4, 1873, called on Swartz, If the evidence so satisfies you, and if you who paid him the dividend then due, and find he was bailee for hire, and if the subsequently continued to pay him quar- loss was occasioned by negligence on bis terly dividends until July, 1876, at which part, he would be liable to the bailor, Mr. time Hauser asked for the stock or its Hauser, for the loss. proceeds. Swartz thereupon made the Verdict and judgment for the plaintiff following entry in Hauser's pass-book :- for $871.36.

The defendant took this “On Aug. 4, 1872, I handed to J. B. Long, writ, assigning for error, inter alia, the broker, at Lancaster, twenty (20) shares i answers to his points, and the portions of Central Transportation Co. stock to sell, the charge above quoted. limit $50 per share, the said stock having been sent to me by H. C. Hauser, to sell ly would have been manifest error in the

May 16,1881. THE COURT. It certainfor his account, and I took said Long's learned judge to submit any question to receipt. D. G. Swartz.”. Swartz paid the jury of which there was no evidence. no further dividend upon the stock, and the plaintiff brought this suit June 18,1878. defendant below had contracted for com

; He thought there was no evidence that The defendant presented, inter alia, pensation for his services, yet he submit the following points : (1) “The undis- / ted it as a question of fact. But this did puted evidence in this case shows that the the plaintiff no harm. There was no didefendant was voluntary bailee without rect evidence, perhaps, of a contract to reward ; he is therefore responsible only pay, but the law implied one in the abfor gross negligence." Answer. “If the sence of an express contract not to pay.jury find that the defendant was a volun- We see nothing in any of the errors astary bailee without reward, then he is only signed of which the plaintiff has any right responsible for gross negligence." (2) to complain. "There is no evidence in the case of gross Judgment affirmed. PER CURIAM.

VOL. IV.

No. 24

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C. P. of

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YORK LEGAL RECORD. out of a contract. It was clearly decided

in Zell v. Arnold, (2 P. & W.292) that an THURSDAY, AUGUST 16, 1883.

action to recover damages for negligence COMMON PLEAS.

in the execution of work, employment,

trust, or duty, under a contract, is not cog

Luzurne County. nizable before a justice of the peace. In Klinetob v. Roth.

the later case of Conn v. Stump, (7 C. 14) In an action before a justice, the plaintiff's demand was the plaintiff, on appeal, charged in his defor "five dollars and twenty-five cents damages, by reason of defendant's not repairing plaintiff's gun as by him

claration that he retained and employed" agreed to do, and receiving pay for it:" HELD, that the the defendant to iron his wagon, and the justice had jurisdiction.

defendant "undertook and promised to do Rule to show cause why affirmance of it with care and skill,” and the breach asproceedings entered November 9, 1875, signed was, that “not regarding his proshall not be stricken off, and the case rein- mise and undertaking,” he did not do it stated for argument.

with proper care and skill. The court March 6, 1882. RICE, P.J. On the 7th below, acting on the authority of Zell v. of April, 1875, exceptions were filed to Arnold, dismissed the case for want of this record, and on the oth of November jurisdiction in the justice. This was held following the proceedings were affirmed. to have been an error. It is certainly not May 18, 1876, this rule was granted. It easy to reconcile these two cases, nor, as is in the nature of an application for a re- we read this record, it is necessary to atargument, upon the ground that the court tempt to do so. The cause of action here erred in affirming the proceedings. The set forth is not that the defendant failed sole reason urged before us was, that the to perform the work undertaken in a justice did not have jurisdiction of the workmanly manner, but a failure to percase of action.

form as he had agreed to do, and of this It is asserted by the defendant's counsel the justice had jurisdiction, as is shown that this matter was decided by the judge by abundant authority. In the case of who granted the rule. This, however, is

Hunt v. Wynn (6 W. 47), and action, denied by the counsel for the plaintiff. In against a common carrier for not deliversuch a dispute we must necessarily rely ing goods intrusted to him, the declaration, entirely upon the record, and as the re

on appeal, charged the defendant with cord shows no previous disposition of the negligence, and in a second count, generrule, we must assume that the questionally, but not having delivered the goods has not been finally adjudicated.

according to contract. It was held that

the action was within the jurisdiction of The cause of action, of which the jus- the justice. In the case of McCahan v. tice took jurisdiction, is thus stated in the Hirst (7 W. 178), Mr. Justice Kennedy transcript : "Plaintiff demands five dol- said: “The complaint of the plaintiff belars and twenty-five cents damages, by low substantially was, that the defendant, reason of defendant's not repairing plain- having become by contract the bailee of tiff's gun as by him agreed to do, and re

clover seed belonging to the plaintiff, did ceiving pay for it."

not take care of and account for it to the It is assumed by the defendant's coun- latter as he ought to have done. Contract, sel that the gist of the action, as thus then, being the foundation of the duty stated in the transcript, was the failure to imposed upon the defendant by his havrepair the gun in a workmanly manner; that this was a tort, and that a justice of ing become bailee, it is clear that a breach the peace had no jurisdiction of such a of duty thereby imposed, which is the real cause of action, though it indirectly arose cause of action here, must be regarded as

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HELD in this case that

arising out of contract, and therefore finding that fact in the affirmative. ” The within the jurisdiction of the justice,” etc. fact to which the learned judge referred See, also, Todd v. Figley, 7 W. 542 ; Liv- was the promise of marriage. He has eningston v. Cox, 7 Barr 360 ; Seitzinger v. tirely mistaken our language and meanSteinberger, 2 J. 380-1.

ing. We repeat now what we said then, We have no other evidence of the

that the evidence of intentions on the part cause of action in this case, than that fur- of the plaintiff to the prosecutrix was not nished by the transcript, which shows sufficient to submit to the jury upon the that the plaintiff's demand was based on question of corroboration. And the jury the defendant's non-feasance of a contract should be so instructed in the future, if between them, and not on his misfeasance necessary, upon the same or similar state in the performance of a duty implied by of facts. that contract, and hence the justice had But one other matter remains. We jurisdiction, and there was no error in the said before, with some reluctance, that affirmance of the proceedings.

"we cannot say that it was error to reThe rule is discharged.

fuse to withdraw the question of seduc

tion from the jury. There was some SUPREME COURT.

proof that plaintiff in error admitted the

promise to marry." The evidence was Rice v. Commonwealth, No. 2. exceedingly weak, but as the case had to

go back for other reasons we thought 1. The evidence set forth in the opinion was insuffi. cient to go to the jury upon the question of a promise of

best to allow this question to be again marriage by the defendant prior to the seduction.

submitted to the jury. It has not been 2. The failure of the Commonwealth to call a certain witpess commented on.

strengthened upon a second trial. The Error to the Court of Quarter Sessions mother of the prosecutrix sent for the of Lackawanna county.

plaintiff in error after she learned her April 2, 1883 Paxson,J.-When this daughter was in trouble. He came to her case was here on a former writ of error* , house and had an interview with her in we said pointedly that “the mere evi- the presence of her husband and her dence of his (plaintiff's) attentions was daughter. Mrs. Robertson thus relates not sufficient to carry the case to the jury." what occurred : In other words they were not such atten- Q. “What did you say to him (plaintions as would justify a jury in presuming tiff), what were the words ? A. I told a promise of marriage, or would amount him this was a nice job he had done; I to such corroboration of the prosecutrix told him he must fulfill his promise and as the Act of Assembly requires in cases not bring the rest of the family to shame. of seduction. Upon a state of facts in no Cross-examination.-Q. I want you to essential features differing from those of tell the first thing said, who said it, and the former trial the learned judge below the answer ? A. He bid good evening charged the jury (see the 7th assignment); with me and said he was sorry for what “but there is evidence of social attention he had done Q. He told you he was of various kinds, if you believe it. If it is sorry for what he had done? who spoke true that this young man did accompany next? A. Himself. He said he would this young lady from church, and waited marry her if I waited two weeks, because upon her home, and called at the house of he said he owed his sister some money. her parents, and there waited upon her I told him to fulfill his promise and not now and then for two years, that is such bring my family to shame." There is social attention within the meaning of our Supreme Court as would warrant you in nothing here from which a jury would *See Rice v. Com., 3 YORK LEGAL RECORD 99.

safely find a previous promise to marry

This view is strengthened by what fol- strengthened by the testimony of Ody lowed. Upon her re-direct examination Biglin, who stated that he had a converthe same witness related what occurred sation with the plaintiff, in which the latas follows:

ter said "he would give two hundred Q. “Tell us what took place at the time dollars to settle it, and wouldn't give no Rice came to your house when you sent more; that he was guilty of the crime." for him ? A. He came to talk to me.

It would be straining this language to say Q. What was the first thing said ? A. the plaintiff referred to the promise of We bid good evening together, and he marriage. The crime of which he admittold me he was sorry for what he had ted his guilt was evidently the illicit indone, and if I would leave it for two tercourse. That was not seriously denied, weeks he would marry her; I told him I indeed, the plaintiff acknowledged it on a would not leave it two days ; I said I had former trial. a small family coming up and didn't want There was one feature of the trial beto bring them to shame; he said he hadn't low that we cannot pass without comment. money enough to get married now, he It was the failure of the Commonwealth owed his sister board. I said he could to call the father of the prosecutrix in reget married and have her home there, and gard to the conversation we referred to not bring my little family to shame." between the mother of the prosecutrix Cross-examination. Q. "Then, if I un- and the plaintiff. The prosecutrix and her derstand it now,

was this way: Rice father were present at that interview.said he owed some money for board, and Neither was called. It matters little about could not marry short of two weeks ? A. the prosecutrix, as her evidence in regard Yes, sir. Q. And then you went on and to the promise of marriage could not be said he could fulfill his promise, that he aided by placing her upon the stand again. would have a home there ? A. I said, if But under the circumstances of this case. he would fulfill his promise and let her it was the plain duty of the Commoncome home, as he promised, that her wealth to have called her father. This home was there for her, and not bring my

was the more necessary by reason of the family to shame, as I told you before.” equivocal character of Mrs. Robertson's As the case now stands it is our duty The Commonwealth demands justice, not

testimony, as well as that of her daughter. to express a decided opinion upon this evidence. The implication which might

victims. This belongs to a class of cases

where the whole truth should brought be gathered from the examination-in chief that the plaintiff referred to a pre

out if possible. Upon so vital a question,

as whether, at the interview referred to. vious promise to marry is entirely removed by the cross-examination which shows

the plaintiff admitted a promise of marrithat the plaintiff was merely expressing a

age prior to the seduction, the neglect of regret for what he had done, and a will the Commonwealth to call the father of ingness to repair the wrong by marrying and heard all that was said, would have

the girl, who was present at the interview, the girl. And when we examine the subsequent re-examination and re-cross ex

justified the jury in drawing an inference amination there cannot be a doubt upon and the court below would have been at

seriously unfavorable to the prosecutrix, this matter. There is nothing here upo! least justified in saying so. which this verdict can stand. The evidence was at most a scintilla, and it will If the plaintiff in error has been guilty not do to send a man to the penitentiary of fornication, of which there seems little upon a scintilla.

doubt, he may be convicted of that offence It was said, however, that the case was under this bill.

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The judgment is reversed, and it is or- amounts which they had thus paid to said dered that the record with this opionion Thomas B. Dewees, trustee, and for such setting forth the causes of the reversal, other and further relief as to the court be remanded to the court below for fur- might seem proper. The said Willauer ther proceedings.

filed an answer to a rule granted on said

petition requiring him to pay over to said ORPHANS' COURT.

sureties the amounts which they had thus

paid, &c., or to show cause, &c., setting 0. C. of

Chester County

out that “by reason of the great depreciaJohn's Estate.

tion of real estate, and sundry losses and Where the sureties of a trustee are compelled to pay money, owing to the trustee's refusal to do so, they will misfortunes in business, he was compelled be subrogated to all the rights of the cestui que trust or a new trustee, against him, and can ask for a decree com- on March 31, 1880, to make a voluntary pelling him to pay to them said sums of monev.

assignment for the benefit of creditors ; Petition by one of two paying sureties that his estate is badly insolvent, and that

, to be subrogated.

he is wholly without money or The facts appear by the opinion of the wherewith to pay his said sureties, other Court.

than such dividend as they have or may January 29, 1883. FUTHEY, P. J. receive out of his assigned estate, and Seneca G. Willauer was appointed by the further saith not." Court, Aug. 15, 1874, trustee under the It is a well-setted rule, which now adwill of Jonah John, deceased, of moneys mits of no discussion, that, if a surety is to be held in trust under the provisions of compelled to pay moneys for which he is the will of said decedent, and gave as his and entitled to all the securities, and is

security, he is clothed with all the rights sureties, Marshall B. Hickman and Wel given all the remedies, possessed by the lington Hickman. On Aug. 12, 1880, he original debtor. (Wright v. Grover & asked to be discharged from his trust on

Baker, S. M. Co., I Nor. 80; Leiter's Apaccount of misfortune and pecuniary cited.) In the case before us, the trustee

peal, 10 W. N. C. 225, and cases there losses. The Court, on hearing, appointed received the moneys of the estate and has Thomas B. Dewees, trustee to succeed filed an account, showing the amount for him and to receive from him the trust es- which he is responsible. These moneys tate, and directed Mr. Willauer to be dis- the sureties have been compelled to pay charged, upon his paying over to said

for him. They are entitled to be subroDewees the trust moneys in his hands, the to have a decree of court that Mr. Will

gated to the rights of the new trustee, and amount, according to his petition and ac

auer pay the moneys which are in his count filed and confirmed, being the sum hands as trustee to them. The prayer of of $11,460.96. The moneys, not being the petition of one of the sureties for an paid over according to the decree of court such relief as to the court may seem prop

order for such payment to them, and for after demand therefor, the new trustee

er, is sufficient to move the court to such brought suit against said Willauer and his affection. sureties, Marshall B. Hickman and Wel- It is decreed that Marshall B. Hickman lington Hickman, in the common pleas of and Wellington Hickman be subrogated Chester County, No. 55, to Oct. Term, to the rights of Thomas B. Dewees, trus1880, and the said sureties were compelled of Jonah John, deceased, and that the said

tee appointed by the court under the will to pay to him said trust moneys and their Seneca G. Willauer be and is hereby orinterest ; each of them paying the sum of dered to pay to the said Marshall B. Hick$5,974.69. The said Marshall B. Hick- ' man and Wellington Hickman, each the man, one of said sureties, then came into sum of $5,974.69, being the respective this court, by petition, setting out the facts

amounts which the said Marshall B. Hickand asked for a rule on said Willauer re

man and Wellington Hickman have been

compelled to pay for him as his sureties quiring him to pay to said sureties the as aforesaid.

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