387) it was said that the equitable remedy may be adopted solely on the ground that it is more convenient than an action of assumpsit. In the present case, the greater convenience of the chancery process cannot be doubted, for admitting the possibility of compelling the defendants to answer jointly in the action of assumpsit for the disposition of the collaterals in controversy, yet we may safely assert that the remedy thus proposed would be neither the most certain nor the most convenient.

Conyngham's Appeal (7 P. F. S. 474) was a case involving a pledge of collaterals, like the one in hand, and because the account between the parties involved a number of items, it was held properly cognizable in equity. But the contention here now presented involves not merely an account between parties whose status as to each other is uncertain, but also the charge of the breach of a parol contract by Laird and a fraudulent conversion by both defendants of the pledged collaterals to their own use, which would, according to Long v. Perdue (2 Nor. 214), make them trustees ex maleficio, and accountable as such. It is, therefore, difficult to see how a case thus complicated can be properly disposed of in a common law action.

The decree of the Court below is now reversed and set aside at the costs of the appellees, and a procedendo is ordered. Opinion by GORDON, J.

July, '83, 2272.

J. P. K.

Error to the Common Pleas No. 3, of Philadelphia County.

Assumpsit, by G. H. Martin against Charles S. Nelson et al. trading as Nelson Bros. & Co., upon a check for $750 drawn by defendants to plaintiff's order.

On the trial, before FINLETTER, J., the following facts appeared: The plaintiff, Martin, was a dealer in horses, and had on April 24, 1882, a certain mare for sale in Herkness's Bazaar, in the city of Philadelphia. On that day Charles S. Nelson called at the bazaar, and saw the mare. Martin told him that "she was a very extraordinary mare, very speedy; trot better than forty; sound, kind, and anybody could drive her." Nelson then went away and saw one Sharp who was or was supposed to be a good judge of horses, and asked him to call at the bazaar and look at the mare, further authorizing him to buy the mare, "if she was what Martin said."

Sharp went to the bazaar, saw and approved of the mare, and wrote a note to Nelson informing him that he had bought her. Nelson then went on the day following with Sharp to Martin, and Sharp said to the latter: "This mare is for Mr. Nelson, if she is not right let us know now." Martin said she is all right in every way," and thereupon Nelson gave to the plaintiff his firm's check in payment, being the check sued on. The mare subsequently proved to be lame and unsound; defendant refused to take her, and demanded the return of the check, which was refused. Plaintiff kept the mare for some time, and then sold her for keep, realizing $315.

Defendant offered to prove the condition of January 30, 1884. the mare a few hours after sale. Objected to by plaintiff. Objection sustained. Exception. (First assignment of error.)

Nelson Bros. & Co. v. Martin.

Sale-Evidence-Contract-Fraud-
Rescission.

A. having seen a mare belonging to B. which the latter highly recommended, requested C. to look at the mare, and authorized him to purchase her for him "if she was what B. said." C. purchased the mare of B. and informed A. A. and C. then went together to B., and C. informed the latter that the mare was for A. and requested him to state then and there if the mare was not all right. B. averred that she was, and A. thereupon gave his check in payment. The mare proving defective, the check was not honored. Suit having been brought thereon by B. against A.:

Held, that there was evidence for the jury that A. and not C. was the purchaser, and that therefore it was error for the Court to exclude evidence to the effect that the mare was defective, and that B. admitted that he knew it when he sold her, on the ground that C. alone was the purchaser, and that there was no evidence that A. purchased the mare.

When a party selling a horse makes an assertion of his soundness in the course of the transaction which he knows to be false, this constitutes such a fraud on the vendee as entitles him to rescind the contract, irrespective of the question whether or not the assertion amounted

to a warranty.

Defendant offered to prove further that on the day after the sale plaintiff said to defendant: "Then you don't want her," meaning the mare, and upon defendant stating that he did not, that plaintiff stated he would then return the check in order to show thereby a rescission of the contract. Objected to by plaintiff on the ground that if it was a rescission, there was no consideration for it. Objection sustained. Exception. (Second assignment of error.)

Defendant asked Sharp the following questions: "When you went to the 1 azaar with Nelson to pay balance of purchase-money, what was said by Martin as to condition and qualities of the mare? What did you say to Martin at that time as to condition and qualities of the mare ? Objected to by plaintiff. Objection sustained. Exception. (Third assignment of error.)

Defendant offered to prove further that plaintiff admitted that he knew the mare was lame when he sold her. Objected to by plaintiff. Objection sustained. Exception. (Fourth assignment of error.)

"Sharp bought for $675, and has a right of action against Martin for the difference between that and the amount of check. Nelson does not say he bought the horse. Sharp does not say So. Martin does not say so. Whether Sharp was acting for himself or for Nelson, the sale was concluded when the $20 was paid. Martin is only responsible for what was said at the time of sale, and as nothing was said about soundness, now.' and as that was the case she was bought as she stood. If you find for the plaintiff you should give credit for $315, and find for the face of check less that credit." (Sixth assignment of error.)

very.

soundness in every way. In any conceivable | admitted, and if believed by the jury they would view of the case, this testimony carried the whole have been authorized to find that the contract subject of the contract to the jury, who, if they was rescinded by the mutual agreement of the believed the witness, would be authorized to find parties, and therefore there could be no recothat the purchase was by Nelson, and not by Sharp, that it was not finally agreed to until But, in addition to all the foregoing, there was Martin asserted the soundness of the mare, and another element introduced into the case by the that the price was assented to and the money assertion of the mare's soundness by Martin bepaid by Nelson on the faith of that assertion. In fore the transaction was closed. Whether Martin view of this testimony it mattered but little what warranted the mare or not, if he asserted her to had passed between Sharp and Martin, because be sound and she was not, and he knew it at the Nelson was disclosed as the purchaser, and Sharp, time of the sale, his mere assertion of her soundin the presence of Nelson, and before the con- ness was such a fraud upon Nelson as to authotract was closed, demanded from Martin a repre- rize the latter to rescind the contract with or sentation as to the condition of the mare to which without Martin's consent. Thus, in Croyle v. Martin assented, and gave the assurance that she Moses (9 Norris, 250), we held that where upon was all right in every way. Nothing had been a sale of the horse the vendor knew him to be done on either side under the agreement with unsound in a certain respect, and by artifice Sharp, the mare had not been delivered, no concealed the defect, or in answer to inquiries money had been paid, and before any was paid, gave evasive and artful replies with intent to dethe seller, upon the demand of the purchaser, ceive the vendee, and did thereby deceive him makes the assertion of soundness. Surely it can- to his injury, it was such a fraud on the vendee not be said as matter of law that all this consti- as would justify him in rescinding the contract. tuted no part of the contract. The whole trans- The case is reversed on the first, second, third, action was in parol, and was clearly for the jury. fourth, sixth, seventh, eighth, ninth, tenth, and Yet the learned Court took it all away from them sixteenth assignments. upon the theory that Sharp alone was the purchaser, and that there was no evidence that Nelson purchased the mare. To our minds it is quite clear that there was considerable evidence that Nelson was the purchaser, known as such to Martin before the bargain was closed and money paid, and that, in addition, a new element was added to the transaction by the assertion of soundness made by Martin before the matter was closed.

This being so, the assignments of error are readily disposed of. The defendant offered to prove the condition of the mare a few hours after the sale, but the Court refused the offer, and refused also an offer to prove that the plaintiff admitted he knew the mare was lame when he sold her, and also an offer to prove by Sharp the conversation which occurred when Nelson, Martin, and Sharp were together, all upon the absolute assumption that Sharp alone and not Nelson was the purchaser. These offers should all have been received on the ground that the question who was the purchaser and what were the terms of the contract was for the determination of the jury. The defendant, Nelson, also testified to a positive rescission of the contract by a return of the mare on his part and an acceptance of her by Martin, who agreed to return the check, and offered to prove the same fact by another witness, which offer was rejected, the Court holding that if there was a rescission there was no consideration for it. In view of the fact that the plaintiff had received back the mare and then had her in his possession we cannot assent to this position. The evidence should have been

Judgment reversed, and venire de novo awarded.

Opinion by GREEN, J.

Quarter Sessions.

Q. S. of Carbon Co.

T. R.

December, 1884.

Commonwealth v. Meekes. Costs-Criminal law-Costs may be imposed by the jury on a defendant although he was acquitted by the direction of the Court, on the ground that the misdemeanor was not committed within the county, as charged in the indictment.

Rule to strike off so much of the verdict of the jury as imposes costs on the defendant; and motion in arrest of judgment.

The facts are stated in the opinion of the Court.

Craig & Loose, for the rule.

E. M. Mulherrin, District Attorney, contra.

January 3, 1885. THE COURT. The defendant was tried in Carbon County on an indictment charging him with fornication and bastardy in said county. The proof was that the offence was committed in Monroe County, and, on that ground, the Court directed the jury to acquit the

defendant, but left the question of costs for their law refuses to interfere in his behalf, and leaves determination. As the undisputed evidence was him as he stood at the common law. The parthat the offence was not committed in Carbon ticular aspect of the case, as presented by the County, it is contended, on behalf of the defen-record and evidence, is somewhat novel, and, in dant, that the Court of Quarter Sessions of Carbon the absence of authority, either one way or the County had no jurisdiction to try the indictment, other, on the precise question, we feel it our duty it was error to submit the question of costs to the to follow analogous cases, and hold that there jury. The indictment on its face was regular, was no error in submitting the question of costs and, to that extent, the Court had complete to the jury. jurisdiction. The defendant pleaded not guilty generally, on which issue was taken by the Commonwealth. The defendant, however, contends that as he was acquitted by direction of the Court, on the ground that the offence was committed in Monroe County, he would, nevertheless, be subject to indictment and trial in the latter county, that a plea of autrefois acquit would not avail him there, and he might be compelled to pay costs the second time. That such

And now, January 3, 1885, rule discharged, and motion in arrest of judgment overruled. Opinion by MEYERS, P. J.

a plea could not be sustained in a case like this Common Pleas—Equity.

C. P. No. 4.

December 10, 1884. Corson, Executor, v. Garnier et al.

Life insurance—Insurable interest-A creditor has an insurable interest in his debtor's life which is not defeated by subsequent payment of the debt.

contract for indemnity, but is a contract to pay a sum of Life insurance, unlike fire insurance, is not a mere

money in a certain event.

Where one has an insurable interest at the time he procures a policy of insurance on the life of another, the fact that his interest terminates in the lifetime of the insured will not deprive him of the right to receive and retain the insurance money, as against the personal representatives of the insured.

A nephew insured the life of his aunt, he being a creditor of his aunt when the insurance was effected; the between the nephew and the executor of the aunt: Held, that the nephew was entitled to the proceeds of the insurance.

debt was settled before the aunt died. In a contest

seems to have been decided in Methard v. State (19 Ohio St. 363). But that case does not meet the question under our statute, which expressly provides that in all prosecutions for misdemeanors, in cases of acquittal, the petit jury shall by their verdict determine who shall pay the costs. It has, however, been held by the Supreme Court in this State, that if a defendant is acquitted where the indictment is defective, or charges an offence unknown to the law, and a party goes to trial on a plea of not guilty, the jury must determine whether the county, the prosecutor, or the defendant shall pay the costs. (Com. v. Harkness, 4 Binn. 194; Com. v. Tilghman, 4 S. & R. 129.) And where a defendant has been acquitted on a defective indictment, such an acquittal is not a bar to a second indictment for the same offence. (People v. Barrett, 1 Johnson, 66; 1 Wh. Cr. L. sec. 551 and cases there cited.) And in Linn v. Com. (15 Norris, 288), the Court say: "Where the indictment sufficiently charges an offence, a failure to convict for want of evidence does not take from the jury the control of the costs in cases of misdemeanor." The distinction between the words "prosecutions" and "offences," used in the statute relative to costs (supra) is clearly pointed out in Com. v. Tilghman (supra), and as the case in hand is a "prosecution," though the evidence was that the offence was not committed in Carbon County, yet, as it comes within the letter of the statute, viz., a "prosecution" by indictment, the jury must determine the question of costs. "The judgment," says GIBSON, J., in the last-cited case, is not on the indictment, but on something collateral to it." The defendant is not punished for a matter of which he stood indicted (for he is acquitted of everything The bill set forth, that the said policy on the life of that sort), though, on account of something of of the said Ellen McLean for the benefit of Garwhich he was not indicted-some impropriety of nier was issued to secure an indebtedness due conduct, or ground of suspicion, which the ver- the said Garnier, which said indebtedness, prior dict of the jury has fastened on him-the statute to the death of the said Ellen McLean, had

Sur exceptions to Master's report.

Bill in equity, filed by Robert Corson, executor of Ellen McLean, deceased, against the Provident Savings Life Assurance Society of New York and James Garnier, to compel the assignment and surrender by Garnier to the complainant, as executor, of a certain policy issued by said company to Garnier on the life of the said Ellen McLean, now deceased, and to compel payment to said executor by the Provident Savings Life Assurance Society of New York of the sum of $2000, the amount of said policy.

been duly paid, and full settlement made | ship or otherwise in view of the current of between them. decisions in Pennsylvania."

The Provident Savings Life Assurance Society made no defence, disclaiming any interest in the matter, and paid the amount of the policy into court to await the decision in this suit.

John Sparhawk, Jr., and N. Dubois Miller, for complainant.

Where a policy has been taken out to secure a debt, the surplus over and above what is necessary to pay the debt enures to the benefit of the estate of the insured.

American Life & Health Ins. Co. v. Robertshaw, 2
Casey, 189.

An answer was filed by James Garnier, averring that the said Ellen McLean was his aunt and his only blood relation in this country; that he had always acted as a son towards her, and that the policy of insurance for his benefit If there is no sufficient interest to support a was applied for and issued with a full knowledge policy of insurance, the beneficiary has no standby the company's agents of his relationship to ing, and if he has collected the money from the and the circumstances surrounding his interest insurance company he is bound to account to the in the life of his aunt; that there never was any-estate of the insured. thing like a settlement between him and his aunt, and from the nature of things could not be. The cause was referred to a Master, who reported the facts substantially as follows:

Gilbert v. Moose's Adm., 13 WEEKLY NOTES, 489.
Cammack v. Lewis, 15 Wallace, 643.
Stevens v. Warren's Adm., 101 Mass. 564.

Am. Life & Health Ins. Co. v. Robertshaw, supra. Ruse v. Mut. Res. Life Ins. Co., 23 N. Y. 516. Franklin Life Ins. Co. v. Hazzard, 41 Ind. 116. The defendant in this case has ceased to be a creditor of the decedent, and is therefore not entitled to the proceeds of the policy; nor will his relationship as nephew sustain his claim upon that ground. The interest necessary to sustain a policy of insurance must be of a pecuniary kind, or, in the case of relations, the person in whose favor the policy is taken out must be dependent on the person whose life is insured whereby he has an interest in the prolongation of that life.

Bliss on Life Insurance, 33.

Rombach v. Piedmont & Arlington Ins. Co., 12 Ins.
Law Journal, 268.

James Garnier, the defendant, was a nephew of Ellen McLean; at his instance and at his expense she removed from Lawrence, Massachusetts, to Philadelphia, where she carried on a grocery store which he had bought and stocked for her, for which she paid him as she got money from the receipts of the store. A good opportunity offering itself, the defendant wound up and sold this business, the proceeds being paid to Mrs. McLean, and the defendant then bought another store for her, it being stocked and replenished from time to time by him, and subsequently sold out for Mrs. McLean's benefit. This was repeated more than once; Mrs. McLean on each occasion receiving the price. The relationship between Mrs. McLean and Garnier was most intimate. He was her friend and adviser. The Master reported that it was in Wm. F. Johnson, for the defendant Garnier. consequence of this relationship between GarThis policy is either valid, or it is void because nier and his aunt that this policy was taken out "contrary to good morals," or in his favor, and that neither the policy nor the against public application for it had any reference to any in-be returned to the party defrauded, i. e., the inpolicy.' If the latter, the money realized should debtedness from Mrs. McLean to Mr. Garnier, and that Garnier did not claim the right to the surance company; if the former, it belongs to in whose favor the policy was issued. insurance by reason of any indebtedness. The person premiums and charges on this policy were paid has no interest whatever in the matter at its A wager policy is one in which the party insuring by Garnier. inception.

The Master found that the defendant Garnier had no pecuniary interest in the life of the said Ellen McLean, and therefore had no insurable interest. He therefore reported that after payment to the defendant of the cost of the policy and subsequent premiums paid thereon with interest, the remaining portion of said fund should be paid to the complainant, as executor, etc.

To this report exceptions were filed by both the complainant and the defendant, the latter excepting, inter alia, because the Master found "that the said defendant James Garnier had not any pecuniary interest in the life of the said Ellen McLean, either by virtue of his relation

the

Lewis v. Phoenix Mut. Ins. Co., 39 Conn. 100.
Halford v. Kymer, 10 B. & C. 724.

Singleton v. St. Louis Mut. Ins. Co., 66 Mo. 63
(1377).

66

Insurance Co. v. Schaffer, 4 Otto, 460.

Any such interest arising from the ties of blood or marriage as will justify a reasonable expectation of advantage or benefit from the continuance of life will support a policy.

Warnock v. Davis, 14 Otto, 779.
Etna Ins. Co. v. France, 4 Otto, 564.

Loomis, Adm., v. Eagle Life & Health Ins. Co., 6
Gray, 399.

Ins. Co. v. Schaffer, 4 Otto, 460.

A policy taken out in good faith and valid at the time of its inception, is not avoided by cessation of interest.

Ins. Co. v. Shaffer, supra.