Weber (26 P. F. Smith, 168), and Central R. R. Co. of New Jersey v. Feller (4 WEEKLY NOTES, 160.) It is not exceptional within the principles stated in P. R. R. Co. v. Ackerman (24 P. F. Smith, 268.) Upon the trial (before PEARSON, P. J.) it appeared that Thaddeus Stevens, who was the owner of a large tract of land in Franklin and Adams Counties, known as the Caledonia Iron Works, procured with Daniel V. Ahl, his partner, and Had the deceased and his friend stopped before others an Act, approved 22 March, 1867 (P. reaching the track, the danger would have been L. 542), to incorporate the Caledonia Iron, discovered. But they drove on without halting, Land and Railroad Co., by which the comand the accident resulted from this imprudence. pany was authorized to purchase lands, to manThis was negligence, and the improper speed of ufacture lumber, mine coal and ore, and to the defendants' train, when entering the city of construct a railroad from any part of their lands Camden, inexcusable as it was, had its counter-to any other railroad. Subscriptions to the part in the inexcusable speed with which the de-stock of this company were made, Mr. Stevens ceased entered upon the track of the railroad subscribing for 300 shares; and on June 3, 1867, company. The company was saved by his con- the Governor issued his letters patent. No curring negligence. Nevertheless the frequent organization took place under the charter prior recurrence of such accidents resulting in the loss to Mr. Stevens's death in 1868. Ahl then enof life loudly demands legislation at least in tered into an arrangement with one Jones to Pennsylvania to protect the lives of persons both build a railroad to the Mount Pleasant estate, in the train and on the roadway. owned by Ahl. Jones was to find the means for Judgment affirmed. this purpose. They accordingly obtained con PER CURIAM. GORDON, J., dissents. SHARS- trol of the charter of the Caledonia company, WOOD, J., absent. It is not error to submit to the jury what was the original purpose of a charter, and whether the purpose was subsequently changed in fraud of the original stockhold ers, by supplement to the Act of Incorporation. The supplements to a charter of an iron and railroad company changed its name, authorized the purchase and cancellation of the original stock, and gave it the power of a general transportation company: Held, that it was a fair question for the jury whether there was a combination formed for the purpose of effect ing fundamental changes in the purposes of the company, and to divert the stock previously subscribed to the new purpose. If such a combination were found by the jury, an action for the amount of a subscription to the original stock could not be sustained. Error to the Common Pleas of Lebanon County. Assumpsit, by the Southern Pennsylvania Iron and Railroad Co. against the executors of Thaddeus Stevens, to recover $28,500, with interest, the balance due on a subscription by Mr. Stevens to the original stock of the Caledonia Iron, Land and Railroad Co. Pleas, non assumpsit, payment, payment with leave, etc. This action was originally brought in the Court of Common Pleas of Lancaster County, which, upon the plaintiff's petition, ordered a change of venue to Lebanon County. and procured the enactment of two supplements Mount Pleasant estate, running about thirteen The Court submitted two questions to the jury for determination. (1) What was the original object, scheme, and design of the law under which this company was incorporated, and to which Mr. Stevens subscribed his money? (2) Has that object been entirely perverted and changed by the supplemental law under which and this corporation was formed and carried on, was the change effected with the view, or attempted to be used for the purpose of perpetrating a fraud on the estate of Mr. Stevens. which the plaintiff took a writ of error, assignVerdict and judgment for the defendants, to ing for error the submission of the above questions to the jury. Wayne Mac Veagh (with him C. H. Jones, A. R. Boughter, and Thos. E. Franklin), for the plaintiff in error. The subscription was an unconditional contri-, bution to all the purposes described in the charter, and a change of purpose cannot absolve. Irvin v. Turnpike Co., 2 Penna. 466. Caley v. Railroad Co., 2 WEEKLY NOTES, 313. as increase its powers are no defence to an action | purposes of the corporation. The title of the on a subscription for stock. Clark v. Nav. Co., 10 W. 364. Everhart v. R. R. Co., 4 Casey, 339. Fraudulent and illegal conduct on the part of other stockholders or officers of the company, or even the attempted exercise of illegal authority over the corporation by the Legislature itself, will not avail as a defence to an action on a subscription before organization. Bedford R. R. Co. v. Bowser, 12 Wr. 29. Nippenose Co. v. Stadon, 18 Sm. 256. Anderson v. R. R. Co., 12 Indiana, 376. The motives which procured the passage of the supplements of 1869 are immaterial, and the Court submitted to the jury questions of fact which were irrelevant to the case. Cochran v. Arnold, 8 Sm. 399. Hon. Jeremiah S. Black (with him Josiah Funck and Geo. M. Kline), contra. The changes made by the supplements of 1869 were vital and fundamental, and relieved the estate of Mr. Stevens from the subscription. The original charter constituted a limited contract for a special purpose, which was expanded into a general transportation company. Angell & Ames on Corp., pl. 531. Crawford Co. v. Same, 8 Id. 141. The Court properly submitted the questions of the scheme and design of the supplements as facts for the jury. There was such ambiguity also arising from extrinsic evidence as made the intention of the old company a question of fact. Beatty v. Lycoming Co. Ins. Co., 2 Sm. 456. Eby's Appeal, 20 Id. 314. May 27, 1878. THE COURT. The charter of the Caledonia Iron, Land, and Railroad Company, passed on the 22d of March, 1867, to enable the stockholders to purchase and hold lands to a large extent, and manufacture iron, lumber, and fire-brick, and to mine coal, ore, fire-clay, and other minerals, was intended for a private purpose. It had nothing public in its character, the railroad being ancillary to the business, and local and not intended for general transportation. The second section of the supplement of April 10, 1867, distinctly recognizes the true character of the principal purpose, in authorizing the company, after organization, to proceed to purchase any lands for the business specified in the Act of Incorporation, increasing the quantity to twenty thousand acres, and to take possession and to proceed to carry out the Act of 22d of March, 1867, corresponds to this purpose. It was to the stock of this land, manufacturing, and mining company Mr. Stevens subscribed, evidently intending to use his own large landed estate called the "Caledonia Iron Works," which gave its name to the corporation, and was then operated by Mr. Ahl and himself in partnership-after Stevens, Ahl being one of the largest subscribers. No organization took place under this charter, and Mr. Stevens died. After his death, Ahl and Jones clasped hands and projected the scheme of a railroad for general transportation, in order to interest the public and specially to benefit themselves; the former to sell his Mount Pleasant lands, and the latter to obtain a construction contract, payable in bonds at enormous prices, from which he hoped by inflation to realize a fortune. Hence the Acts of the 20th of February, 1869, and April 30, 1869. These together formed the basis of the new scheme. The contracts and transactions of Ahl and Jones, who was the factotum of the new company, plainly exhibit their designs; while the fifth section of the Act of 20th February, 1869, drawn by a skilful hand, shows that the writer thought it would be necessary to purchase the original stock in order to enable them to execute the new powers acquired for the main purpose of a railroad for general transportation. The authority was, not simply to cancel the original stock, but to purchase, and then sell or cancel it. Had this intent been fulfilled as to Mr. Stevens's stock, and Ahl had procured this with the other shares, to carry out his agreement with Jones, there would have been no fraud on Mr. Stevens's rights. The large sum to be refunded to the estate was too powerful an attraction, and therefore this suit. Now with all these facts before the jury, it was a fair question whether the combination between Ahl and Jones to change the fundamental purpose of the original Act by the new Act procured by them, and divert the stock of Mr. Stevens to this new end, was not a fraud upon his estate. There was sufficient evidence to be submitted to a jury, and the verdict is therefore conclusive. This puts an end to the action without reference to other grounds, and the other questions in the case are therefore immaterial. The other errors alleged are unsubstantial, and even if sustained, ought not to reverse the judgment. Judgment affirmed. SHARSWOOD, J., absent. PER CURIAM. The treasurer of a school district was indicted for the embezzlement of school funds, under the 65th section of the Act of March 31, 1860 (Purd. 333, pl. 94), which provided that if any state, county, township, or municipal officer of this Commonwealth charged with the collection, safe-keeping, transfer, or disbursement of public moneys, should convert to his own use, or use by way of investment any such moneys, or prove a defaulter . every such act should be deemed an embezzlement, to be punHeld, that a school treasurer was indictable under the section as the officer of a municipality of specific statutory ished as a misdemeanor. creation. Certiorari to the Quarter Sessions of Luzerne County. Dennis Morrisey was indicted for the embezzlement of school funds coming into his hands as treasurer and director of the school district of Lackawanna Township. The indictment was framed under the 65th section of the Act of March 31, 1860 (P. L. 385; Purd. Dig. 333), as follows: Wharton v. School Directors, 6 Wr. 363. Why is it not as well a municipal or quasi municipal one? The school treasurer throughout the school law is termed an officer. He is therefore a "municipal officer." A. Farnham, contra, presented no paper-book, but argued that a school district, although for several purposes a corporation, had nothing to do with the government of a city or municipality, and could not be termed a municipal corporation, nor its treasurer a municipal officer. May 6, 1878. THE COURT. At the Luzerne Sessions in September, 1877, Dennis Morrisey, the defendant below, was indicted for the embezzlement of eight hundred and fifty dollars of the school district of the township of Lackawanna, of which he was treasurer. The indictment was framed under the 65th section of the Crimes Act of the 31st of March, 1860, which declared that if any state, county, township, or municipal officer of the Commonwealth, charged with the collection, safe-keeping, transfer, or disbursement of public moneys, should convert to his own use, or use by way of investment, any such moneys, or prove a defaulter, or fail to pay over the same on legal requisition by the state, county, or township treasurer, or other proper officer, or "If any state, county, township, or municipal officer of person authorized to demand and receive the this Commonwealth charged with the collection, safe- same, every such act should be deemed an emkeeping, transfer or disbursement of public money, shall bezzlement, to be punished as a misdemeanor. convert to his own use in any way whatever, or shall use At the same session, on motion of the defendby way of investment in any kind of property or merchandise any portion of the public money intrusted to him for ant's counsel, and on the ground that the treasucollection, safe keeping, transfer, or disbursement, or shall rer of a school district was not within the statuprove a defaulter, or fail to pay over the same when there-tory description of a township or municipal unto legally required by the state, county, or township officer," the indictment was quashed. treasurer or other proper officer or person authorized to This question is well worth examination. A demand and receive the same, every such act shall be deemed and adjudged to be an embezzlement of so much general rule of construction of the criminal code, of said money as shall be thus taken, converted, invested, so narrow as that which was here applied, would used, or unaccounted for, which is hereby declared a mis- strip it of half its vitality. If the action of the demeanor." Quarter Sessions was warranted, the clear legisThe Court, upon motion, quashed the indict-lative purpose will have been thwarted by a negment, on the ground that the defendant was nei-lect to express it adequately. In 1860 school ther a "state, county, township, or municipal directors and the agents they appointed were officer." The Commonwealth took this writ, assigning for error the action of the Court. Chas. E. Rice, District Attorney (H. W Palmer and W. H. Gearhart with him), for the plaintiff in error. This case is distinguishable from Beamish's case (3 WEEKLY NOTES, 111), being framed under the 65th section of the Criminal Code, while that case was framed under the 118th section. If the defendant is not indictable under the 65th section, it is a most serious omission, and if the law cannot be construed to cover his case, it will be deprived of half its force. A territorial division for the purpose of the common school law is a quasi corporation. 66 popularly regarded as township officers as fully as constables, and supervisors were so regarded. Such officers, it is true, they were not in a strict technical sense, because they did not possess the powers conferred by law on the agents of townships as corporate bodies. But they exercised corporate powers of their own, including a taxing power, which many of the citizens of the Commonwealth had learned to appreciate, over a territory co-extensive with the boundaries of each township. And by express enactment school districts had been placed in precisely the same rank of municipal corporations as townships themselves. By that enactment, when the Act of 1860 was passed, officers of school districts had been made municipal officers, as literally and technically as those of any city or county in the | was offered in evidence, containing, inter alia, State. the following provision : : "That the business of the said corporation shall be to receive on deposit from time to time, such sums of money, not less than ten cents, as may be offered by tradesmen, clerks, mechanics, laborers, servants, minors, married women, and others, and to invest the same in the stocks of this Commonwealth, or of the United States, or in stocks or bonds of any city or borough, authorized to be issued by any Act of the Legislature of this Commonwealth, or in other stocks, or in bonds and mortgages, promissory notes, with approved indorsements, and other approved and valid securities." It also appeared that the trustees of the savings fund had invested $21,000 in the six per cent. interest bearing certificates of Jay Cooke & Co., and $12,000 in like certificates of Wm. Painter & Co. By the 1st section of the Act of the 8th of May, 1854, every township, borough, and city of the Commonwealth was constituted a school district. By the 5th and 6th sections the mode of electing directors was prescribed. By the 12th section the School Board were required to choose a president, secretary, and treasurer annually. The 16th section provided that the treasurer of each district should give bond, receive all funds of the district, pay all orders of the board, settle his accounts annually, pay over the balance in his hands without delay to his successor in office, and generally do and perform all acts and duties, "lawfully pertaining to his office." The 18th section declared that "the several school districts within the Commonwealth shall have capacity as bodies corporate" to sue and be sued, and to purchase, hold, sell, and convey real and personal property. The language used was identical with that of the 3d section of the Act of the 15th of April, 1834, which fixed the character of counties and townships as municipal corporations. Officers of cities were not expressly included in the terms of the 65th section of the Code, yet it was held in the Commonwealth v. Marcer (29 The Court subsequently entered judgment for Leg. Int. 52) that their money was protected by the defendant on the point reserved, non obstante the statute. No doubt is entertained that a school veredicto. To this judgment the plaintiff extreasurer is indictable under that section as the cepted, and took this writ of error, assigning for officer of a municipality of specific statutory crea- error the entering of judgment for the defendant tion. The cause must go back, and the defend-upon the point reserved, non obstante veredicto. ant must take the chances of a trial. The order quashing the indictment is reversed, and the record is remitted for further proceedings in conformity to law. Opinion by WOODWARD, J. These firms having failed, the moneys thus invested were lost to the savings fund. There was a verdict for $4000 for the Commonwealth, subject to the opinion of the Court upon the following reserved point: "Whether or not the whole or any portion of the money in the hands of Painter & Co. or with Jay Cooke & Co. was authorized by the charter of the bank, and also, whether or not the bond of the defendant is legal and valid." E. Harvey and C. J. Erdman, for the plaintiff in error. The question reserved by the Court was a mixed one of law and fact. This was improper. If a point of law be reserved it must be done by stating on the record the facts on which it arises, without which judgment cannot be entered, non obstante veredicto. In order to enter such judgment, the Judge below cannot himself draw conclusions of fact from the evidence; these are to be determined by a jury or agreement of the parties. The reservation of a mixed question of law and fact is improper. Winchester v. Bennett, 4 Sm. 510. R. E. Wright & Son and E. J. Fox, contra. The position taken that the Court had no right to reserve the questions of law in the manner in which they did, is not tenable. Error to the Common Pleas of Lehigh County. In Miller v. Hershey (9 Sm. 67), AGNEW, C. Debt, by the Commonwealth of Pennsylvania, J., in commenting upon the question of the to the use of the assignees of the Dimes Savings manner of reserving points, says: "There are Fund of Slatington, against Robert McDowell, but three modes in which facts, arising upon the upon a bond given by him as a trustee of the said evidence, can find their way into the record, (1) savings fund, conditioned for the faithful keeping by the finding of a jury, which is a special verand appropriation of the funds of the institution. dict; (2) by agreement of the parties, called a Upon the trial the charter of the savings fund case stated; and (3) by the certificate of the Court, contained in a bill of exceptions." In the case at bar, when the Court reserved the questions arising in this case, both parties exceptea to the instructions which the Court had given to the jury, and asked that "the notes of testimony be reduced to writing, and a bill sealed for both parties." This was done, and under this bill of exceptions all the testimony has been sent up, with the record, certified to by the learned Judge who tried the case below. March 25, 1878. THE COURT. What constitutes a good reservation of a question of law arising on the trial of an issue of fact under the Acts of 28 March, 1835 (Pamph. L. 90) and 22 April, 1863 (Pamph. L. 554), has been frequently before this Court. The rules established are not arbitrary ones, but arise from the necessity of maintaining the distinction between the respective provinces of the Court and jury. Hence in order to a good reservation the facts on which the question arises must be found by the jury or agreed on by the parties. They must appear on the record by the verdict or agreement. The Judge cannot himself draw conclusions of fact from the evidence. (Irwin v. Wickersham, 1 Casey, 316; Winchester v. Bennett, 4 Sm. 510.) Hence the reserved question must be a pure question of law. It cannot be a mixed question of law and fact, for that would necessarily draw to the Court what properly belongs to the jury. (Wilde v. Trainor, 9 Sm. 439; Campbell v. O'Neill, 14 Sm. 290.) Tested by these rules the reservation in this case cannot be supported, and as it was excepted to below, and has been assigned for error here, the judgment must on that account be reversed. Whether the whole or any portion of the money in the hands of Painter & Co. or with Jay Cooke & Co. was authorized by the charter of the bank, and also whether or not the bond of defendant is legal and valid, which were the questions reserved, depend evidently upon facts which are neither found nor agreed. Under what contract, upon what terms the money was in the hands of these parties, are facts essential to the determination of the first of the questions, and a great variety of circumstances might enter into the decision of the second. The Court, by whom the reserved point is to be determined, either below or in error, are not to look through the evidence to ascertain them. They should be so stated as to enable the Court to give a final judgment without sending the case to another jury, however the reserved question may be decided. Now here, if the Court should be of opinion that the bond of the defendant was illegal, or that the money deposited was authorized, judgment might be entered for defendant. But if the Court should arrive at a different conclu sion, that the bond is legal, and the money deposited not authorized, what judgment is to be entered for the plaintift? Surely not for the amount of the penalty, unless the sums deposited exceeded that amount. This necessary fact is not found or agreed. Suppose some deposits were authorized and some not. How is the Court to draw the line? It would be fruitless, therefore, to consider what is a good investment under the charter, and the liability of the defendant under his bond, which seem to have been the questions intended to be reserved-conceding even that to be a pure question of law-since no judgment could be entered on this record. Judgment reversed and venire de novo awarded. Opinion by SHARSWOOD, J. WOODWARD, J., absent. Jan. '78, 236. March 21, 1878. Longenberger's Executors v. Kase. Trespass for mesne profits-What sufficient evidence of possession by the defendants. The record of proceedings upon a writ of estrepement from which it appears that the defendants in trespass appeared as defendants in the estrepement, and by their tenant entered security, after which the estrepement was dissolved is sufficient evidence of possession by the defendants to send the case to the jury. Error to the Common Pleas of Wyoming County. Trespass for mesne profits, by Longenberger's executors, and S. P. Wolverton, to the use of Mary McAlarney, against S. P. Kase, H. W. McReynolds, and others. The suit was originally brought to Columbia County by the executors of George Longenberger claiming one-third, and Mary McAlarney, claiming two-thirds of the land. Subsequently S. P. Wolverton, the holder of the legal title to the two-thirds claimed by Mary McAlarney as beneficial owner, presented a petition claiming that he was the beneficial as well as the legal owner, and the Court thereupon directed the case to be marked to the use of S. P. Wolverton and Mary McAlarney according to their respective interests in the case as they should thereafter be made to appear. The case was subsequently upon the application of the defendants removed to Wyoming County. Upon the trial, the plaintiffs put in evidence a certified copy of the record from Columbia County of an action of ejectment, begun in 1863 between the same plaintiffs and defendants as in the present case except that the beneficial owner of the two-thirds interest was not named upon the record as the use party, and S. P. Kase was not named as a defendant. In this case on May 12, 1866, a verdict was rendered for the plaintiffs, |