exclusive possession of the premises, as stated in the affidavit filed, kept and retained the possession of the same against the defendants, and accepted the keys of the premises." N. DuBois Miller, for the rule. mentioned die without children, then their share of the said estate shall go to the surviving heirs, and the said children shall not have any power to sell or mortgage any of the said estate." The widow died in 1869, and the incumbrances referred to in the will have been paid and satis Mere entry by the landlord, without the expulsion of the tenant, does not amount to evic-fied. Two of the children, Andrew Malseed tion, and does not suspend the payment of rent. Bennett v. Bittle, 4 Rawle, 343. Noble v. Warren, 2 Wr. 340. It is not every entry which even amounts to a taking possession. The defendant fails to show either an eviction or a taking of possession. Breuckmann v. Twibill, 7 WEEKLY NOTES, 188. Diehl, contra. and Margaret Bell, have since died, leaving children, one of whom seeks to effect a partition of the estate. Does the trust interpose any obstacle to the present granting of the prayer? The trust was active because active duties attended it, and because it subserved contingent interests. But if we correctly interpret its terms, it has ceased as to two of the shares, and Dec. 6, 1884. THE COURT. Rule absolute. partition of those shares may accordingly be (See Whitaker v. Read, 9 WEEKLY Notes, 144.) A. B. W. Orphans' Court. November 18, 1884. Malseed's Estate. Decedent's estate-Active trust-Partition-In a devise of real estate to children in trust for their children, the share of any child dying without children to go to surviving heirs, the grandchildren take per stirpes, and those for whom the trust has determined are entitled to partition. made. We may assume, what was earnestly pressed at the argument, that the grandchildren were the chief objects of the testator's solicitude, and were to participate equally in his bounty. At first thought, equality among them as a class could be worked out only through a per capita division of the estate. But the equality thus sought might be wholly illusory, because it would postpone the distribution until the death of the last surviving child had precluded the chances of other issue, and would cut out from the distribution all the grandchildren who should die in the interval. On the other hand, an equality more nearly absolute in its results, might be obtained by a distribution per stirpes, because on the death of a parent his surviving children would come at once into possession of their shares. Both the policy of the law, which favors an early vesting of estates, and the clear language of the testator would seem to sanction the latter interpretation. All the material facts in the petition of Thomas The testator declared that the share of a child R. Bell, by his guardian, James P. Malseed, dying without children should go to the surviving under the will of John Malseed, the decedent, heirs. The plain meaning, which is all that we are fully stated in the opinion of the Court infra. are to look for, is the then surviving heirs, not The prayer of the petition was for a citation those who should be afterwards born and should to Daniel N. Malseed, Montgomery Baggs, and survive a future contingency. If this be so, the others, to show cause why an inquest in partition only point in obscurity is his disposition of the should not be granted. An answer was filed, income. He charges against it the payment of alleging the continuation of trusts under dece-incumbrances, the annuity to his wife, and the dent's will, for which reason the said partition ought not now to be made. Sur petition for an inquest in partition. Charles Henry Jones, for the petitioner. December 6, 1884. THE COURT. The testator's will created the following trust: " I give and bequeath to my five children, Ann M. Baggs, Andrew Malseed, Daniel M. Malseed, Margaret Bell, and James P. Malseed, in trust for their children, all my real estate, share and share alike, after the decease of my wife, Mary Malseed, and the payment of the said bonds and mortgages against my real estate shall have been satisfied. Should any of my children before legacy of $500 to his grandson John, but he says W. L. S. WEEKLY NOTES OF CASES. VOL. XV.] (7) The Court erred in entering judgment for the defendant upon the point reserved. (8) The Court erred in entering judgment for the defendant upon the point reserved, such point not having been made a matter of record THURSDAY, JAN. 22, 1885. [No. 24. at the time of the trial. Supreme Court. Jan. '84, 89. January 24, 1884. Mason v. Frick. Bradbury Bedell, for the plaintiff in error. Where a point of law is reserved, the verdict must be in favor of the plaintiff. Lippincott v. R. R. Co., 2 Leg. Chron. 337. Where a question of law is reserved, the facts upon which it arises must either be admitted on Bonds-Coupon bonds-Negotiability-Corpor- the record or found by the jury. ation-Seal-Detinue. A coupon bond of a private corporation, payable to bearer, and secured together with other bonds of the same character by a mortgage on the works of the company, is a negotiable instrument, and the mere addition of the seal of the corporation does not destroy its negotiability. When such bond is delivered by a person having possession of the same to another party who gives value for it and takes it without notice of any defect in the title, the title passes to the transferee irrespective of any defect in the title of the transferrer. Error to the Common Pleas No. 1, of Philadelphia County. Detinue and debt, by Allison Z. Mason, against Aaron K. Frick, to recover a bond, or its value, in the possession of the defendant, which bond had been stolen from said Mason. Pleas non detinet, nil debet, and a special plea that the defendant was a bona fide purchaser. On the trial, before BIDDLE, J., the following facts appeared:— C. D. Freeman borrowed about $900 from defendant, and deposited with him as security a coupon bond of the Denver City Water Works, which said Freeman knew to have been stolen, and for which he had paid no value. Defendant testified that he knew nothing of the prior history of the bond, and that he took it in good faith, believing that Freeman was the lawful owner of it, although he had made no inquiries concerning it. The Court, without allowing counsel to address the jury, instructed the jury that he reserved the question of law as to whether the bond was so unqualifiedly negotiable that a thief could convey to a purchaser title to it, as against the real owner; that there was no evidence of mala fides or wilful ignorance on the part of the defendant, and that they should render their verdict for the defendant, which was done. Subsequently judgment was entered for the defendant on the point reserved. Whereupon plaintiff took this writ, assigning for error, inter alia, as follows: Wilson v. Steamboat, I Casey, 319. Under the action of the Court, plaintiff could not move for judgment on the point reserved, because such a judgment would have no verdict to support it. Glading v. Frick, 7 Norris, 460. The presence of the seal rendered the bond a specialty. Frevall v. Fitch, 5 Wharton, 325. W. Horace Hepburn, for the defendant in error. A plaintiff in error will not be permitted to take advantage of alleged errors of the Court in reserving points of law, unless excepted to at the time of the trial, and it will be presumed that the statement of the Judge has been made by agreement of counsel. Insurance Co. of Penna. v. Phoenix Ins. Co., 21 P. Smith v. Van Horne, 22 P. F. Smith, 207. where no injustice has been done the plaintiff. Cumming v. Garside, 6 Wharton, 302. Credit Mobilier v. Com'th, 17 P. F. Smith, 299. It was the duty of the Court to take from the jury the question of mala fides, for there was no evidence of it. Battles v. Webster, 3 Norris, 446. Reehling v. Byers, 13 Norris, 323. McSparran's Admr. v. Neeley, 10 Norris, 25. A coupon bond is negotiable and a bona fide holder takes a good title. Carpenter v. Rommel, 5 Phila. 34. Gibson v. Lenhart, 14 WEEKLY NOTES, 149. October 6, 1884. THE COURT. The plaintiff declared in detinue and debt to recover a (2) The Court erred in instructing the jury bond, or its value, in the possession of the to render their verdict for the defendant, a defendant, which had been stolen from tle question of law being reserved. plaintiff. The uncontradicted evidence was that the defendant obtained the bond in good faith, and paid a valuable consideration there for. These facts were well established. The main contention was whether the bond was so far of a negotiable character as to pass a valid title thereto, to the defendant. This question of law was reserved by the Court, and judgment afterwards entered thereon in favor of the defendant. The instrument was a "Denver City Water Company" bond. It was one of a series issued at Denver, Colorado, and made payable to or bearer, in the city of New York, twenty years after the date thereof. The interest was provided for by coupons attached, payable to bearer semi-annually at the agency of the company in New York. The power of the company to issue the bond and its liability to pay the same are unquestioned. The negotiability of the bond is to be decided by an inspection of its form, and the well-known purpose for which it issued. Do they give it such a negotiable character as to protect a good faith purchaser? It is true the bond is under seal, and the payment thereof secured by a first lien mortgage on the works of the company. As however it is payable to bearer, the manifest intention was to make it transferable by delivery. Presumptively the bonds were issued to raise money, to construct the works of the company. It was a private corporation, and it put these bonds on the market for sale. The clear intent of the maker was that they should pass as negotiable paper. With the language of negotiability on its face, did the seal impressed thereon destroy the negotiability of this bond? We are not dealing with the case of an obligation under seal between individuals; nor with the case of an isolated bond of a corporation executed to secure the performance of a contract to do one specific act; but with the case of a corporation which issued 250 of like bonds to borrow money and put them on the market for sale. It is held by the Supreme Court of the United States, and by the courts of our sister States, that the bond of a corporation of this form and character is negotiable, and that the mere addition of the seal of the corporation which issued it, does not destroy its negotiability. So where the name of the payee is left blank the holder may fill in his own name, and bring suit on the instrument. (Chapin v. Vermont & Mass. R. R. Co., 8 Gray, 575; White v. Same, 21 How. 575.) The bond of a railroad company to secure payment of money, although under seal, when made payable to bearer or to order, is regarded as invested with all the attributes of negotiable paper. (Zabriskie v. Cleveland, C. & C. R. R. Co., 23 Id. 381; Winfield v. Hudson, 28 N. J. L. 255; Murray v. Lardner, 2 Wall. 120; Morris Canal Co. v. Lewis, 12 N. J. Eq. 323.) So municipal bonds, made payable to bearer, are held to be negotiable. They are transferable by delivery, and the holder may sue in his own name. (Taylor on Private Corporations, § 326; Commissioners v. Clark, 94 Ú. S. 278; Cromwell v. County of Sac, 96 Id. 51; Ottawa v. National Bank, 105 Id. 342; Thompson v. Perrine, 106 Id. 589.) The early decisions of our own State do not recognize this rule to its full extent. The later cases, however, have been gradually approaching a conclusion in harmony with the decisions elsewhere. We will refer to a few cases showing the conflict which has been going on and the final conclusion reached. It was held in Frevall v. Fitch (5 Whar. 325), and in Hopkins v. Railroad Co. (3 W. & S. 410), that an instrument in the form of a promissory note, if attested by the seal of the corporation, was not negotiable. In Carr v. Lefevre (3 Casey, 413), it was held that a bond issued by a corporation, payable to bearer, will pass by delivery, and the holder may sue on it in his own name. In the opinion of the Court by Mr. Chief Justice LEWIS, it is said: "We do not desire to have any doubt on the question whether the holder of bonds issued by a corporation, payable to bearer, may maintain an action on them in his own name. Such bonds are not strictly negotiable under the law merchant, as are promissory notes and bills of exchange. They are, however, instruments of a peculiar character, and being expressly designed to be passed from hand to hand, and by common usage so transferred, are capable of passing by delivery so as to enable the holder to maintain an action on them in his own name." This rule is recognized to be correct in Phila. & Sunbury R. R. Co. v. Lewis (9 Casey, 33). It was ruled in Diamond v. Lawrence County (1 Wright, 353), that a coupon bond of the county, under seal, should not be treated as negotiable paper, although it was there conceded that all the courts, American and English, held otherwise. County of Beaver v. Armstrong (8 Wright, 63) contains a very full reference to the authorities, showing that corporation bonds under seal payable to bearer in money were negotiable.* İn the opinion of the Court, by Mr. Justice READ, it is said: "It is clear then, upon reason and authority, that the coupons which form the subject-matter of this suit, and the bonds to which they were attached, having been regularly issued by the county of Beaver, are on the footing of negotiable paper, and pass from hand to hand by delivery as the representatives of money. I They may circulate together or separately, and July, '83, 196. suits on the coupons are sustained entirely independently of the bonds, to which they were originally annexed. It is therefore of very little consequence whether they are promissory notes, bills, drafts, or checks, for they have the same quality of negotiability as either of those instruments, and the holder sues upon them and re covers in his own name." In Bunting's Adm'rs v. Camden & Atlantic R. R. Co. (31 P. F. Smith, 254), the case of Carr v. Lefevre, supra, is cited approvingly, and it is held that corporation bonds payable to bearer may be sued in the name of the holder. Again, in the late case of Gibson v. Lenhart (5 Out. 522), it was held that every transfer of railroad coupon bonds for value and without notice, gives the transferee a good title to them as against the former holder. In the opinion of the Court by Mr. Justice STERRETT, he says: "Being negotiable securities, every transfer of the bonds to a new holder, for value and without notice, would give the latter a good title to them as against the former holder. That such is the status of coupon bonds similar to those in question, is too well settled by recent decisions to admit of doubt." Citing County of Beaver v. Armstrong, supra, and other cases, he then proceeds, "Like a bank note, or promissory note indorsed in blank, they pass by delivery, and a good faith purchaser is unaffected by want of title in his vendor. The last taker is presumed to be a bona fide holder for value and may maintain his possession against everybody, until the contrary is successfully established by those who undertake to assail his possession." We adopt this conclusion that a bond of the form of the one now in question, must now be held in Pennsylvania as elsewhere, to possess the incidents of negotiable paper. The defendant having taken this bond in good faith, and having paid a valuable consideration therefor, acquired a good title. (Phelan v. Moss, 17 P. F. Smith, 59; McSparran v. Neeley, 10 Norris, 17.) Conceding there was technical error in the charge of the Court, yet the plaintiff was not injured thereby. The conclusion at which we have arrived clearly sustains the correctness of the judgment. We do not reverse for immaterial Coupons-Interest warrants-Actions Interest. in the ordinary form, severed from a railroad corporation bond payable to bearer, and interest may be recovered upon the amount of said coupon from the date of maturity when payment thereof has been refused. Suit may be brought upon an overdue interest coupon An interest warrant attached to such a bond, which warrant is intended to serve as a coupon, may be sued upon as such by the holder, though severed from the bond, even though it contains no express words of nego tiability, provided it is not made payable to any particular person. In such suit interest is recoverable on the warrant from the date of its maturity. Error to the Common Pleas No. 3, of Philadelphia County. Debt, by John F. Smith against the Philadelphia and Reading Railroad Company upon certain scrip certificates, certain coupons in the usual form thereto attached, and certain "interest warrants" upon bonds of the company defendant. The bonds and certificates were payable to bearer. The coupons were in the following form: The Philadelphia & Reading Railroad Company Will pay to hearer, at its office in the City of Philadel phia, thirty dollars, being six months' interest, due July 1st, 1882, upon Scrip Certificate No. 130. $30. D. J. BROWN, Secretary. The company defendant filed an affidavit of defence, averring that the interest warrants were not instruments of writing within the meaning of the affidavit of defence law, and further suggesting that copies of the bonds to which said interest warrants had been annexed had not been filed, and that no action could be maintained upon said warrants as separate and distinct in struments. The affidavit further averred that no interest was recoverable upon the coupons and interest warrants. The court entered judgment for the plaintiff for want of a sufficient affidavit of defence, in cluding in the judgment interest on the coupons that fixes its form in the commercial world; and interest warrants from maturity. Defendant thereupon took this writ, assigning for error the action of the Court in entering judgment as aforesaid. Francis I. Gowen and Thomas Hart, Jr., for plaintiff in error. The Court erred in allowing interest upon the arrears of interest represented by the coupons. The coupons were not separate and independent contracts upon which interest from maturity, in addition to the face value of the same, could be recovered. The certificates, which themselves bound the plaintiff in error to pay the principal sum "with interest thereon," etc., were included in the present action, and a recovery was had on them. The Court, therefore, really allowed compound interest, which is not recoverable in Pennsylvania. Sparks v. Garrigues, 1 Binney, 152. con A coupon, which in terms differs from the tract contained in the bond, must by construc tion be made consistent with that contract. Jones on Railroad Securities, & 317. Until detached from the bond, the coupons do not acquire the character of separate and independent contracts. Clark v. Iowa City, 20 Wallace, 589. porter, 373. It is true that the language of Mr. Justice READ, in the County of Beaver v. Armstrong (8 Wright, 63), appears to conflict with our view; but in that case the suit was on the coupons, and nothing appeared as to the ownership of the bond. The judgment of the Court can be sustained on other grounds. North Penna. R. Co. v. Adams, 4 Smith, 94. With regard to the interest warrants, it will appear that they contain no promise to pay any sum of money, nor are they expressed to be payable to any person, or to bearer or holder. They are simply an acknowledgment of a sum due upon another instrument, to wit, the bond to which they were attached, and cannot as such be made the subject of a suit independently of such bond. Evertson v. National Bank of N. Y., 66 N. Y. 14. Scott v. Fields, 7 Watts, 360. Fidelity Ins. etc. Co. v. Miller, 8 Norris, 26. Wright v. Ohio & Mississippi R. Co., I Disney, 465. M. Hampton Todd, for defendant in error. With regard to the coupons, the question has been directly ruled against the plaintiff in error. County of Beaver v. Armstrong, supra. North Penna. R. Co. v. Adams, supra. The warrants sued upon were virtually coupons. It is not the phraseology of the coupon without regard to its form it must be a warrant for the payment of a sum of money at a given date, passing from hand to hand by delivery. In the following cases, actions were sustained upon. coupons in substantially the same form. North Penna. R. Co. v. Adams, supra. Woods v. Lawrence Co., 1 Black (S. C. U. S), 390. National Exchange Bank v. Hartford, P. & F. R. Co., Oct. 6, 1884. THE COURT. This contention is whether the holder of certain coupons, and interest warrants, can recover interest thereon from the time they became due and payable. Each was given to furnish security for the prompt payment of the interest on bonds issued by the plaintiff in error. The one class of coupons was expressly made payable to bearer at the several times therein specified. They provided for the payment of the interest before designed to be severed from the bonds. They the principal debt became due. They were were intended to pass from hand to hand by delivery. They were payable in money, and at certain times designated. Their form and nature stamped them as the representatives of money. Each successive holder might well conclude that they were thrown on the market as negotiable paper to draw interest from maturity. It must be conceded as a general rule, that interest upon interest cannot be enforced. As, however, interest is but hire for the use of money there is nothing inequitable in a debtor agreeing to pay interest on it when wrongfully withheld. is hire for the use of land, and interest on rent may be recovered. (Obermyer v. Nichols, 6 Binn. 160; McQuesney v. Hiester, 9 Casey, 435; Newman v. Keffer, Id. 442 in note.) rest on interest, an agreement to so pay Whenever equity requires the payment of inteenforced (Pawling v. Pawling, 4 Yeates, 220); while it has been held that compound interest as a compensation merely for the detention of money cannot be allowed in Pennsylvania, yet if there be a special agreement to so pay, and in such form as to be valid, it may be recovered. (Stokely v. Thompson, 10 Casey, 210; Roberts's Appeal, 11 Norris, 420.) it Rent may be The affidavit of defence in the present case does not aver any readiness or willingness to pay the coupons or warrants when they became due. The case is one of persistent and continuous refusal to pay them. The manifest purpose in making them was to increase the market value of the bonds, by giving assurance of the prompt payment of the interest. The intention was to give currency to them as a separate contract, which would carry with them the usual incident of interest in case of a failure to pay at maturity. |