ASSIGNMENT OF ENDOWMENT INSURANCE

POLICY.

NEW YORK COURT OF APPEALS, OCTOBER 4, 1881.

BRUMMER V. COHN.

A life policy recited that in consideration of the payment by the wife of B. of a specified sum, and annual payments thereafter, the company insured the life of B. for a sum to be paid to the wife or her representatives at a specified date, or at the death of B. if before that date. All the payments were in fact made by B. Held, that an assignment by the wife of such policy to secure a debt due from B., there being children of her marriage living at the time, was invalid under Laws 1840, chapter 40, and amendments thereto.

APPEAL by defendant from a judgment in the New

York Common Pleas in favor of plaintiff, in an action to compel defendant to re-assign a policy on the life of Aaron Brummer, the husband of plaintiff, Peane Brummer.

On the 12th of May, 1868, the Mutual Life Insurance Company of New York issued the policy in question. It was therein set forth that in consideration of $687.30 paid by plaintiff, wife of Aaron Brummer, and of the annual payment of a like amount on or before May 12 in each year during the continuance of the policy, the company assured the life of Aaron Brummer in the amount of $10,000, and agreed to pay that sum to the said Peane Brummer, or her executors, administrators or assigns, on the 12th day of May, 1883, or should he die previous thereto, in sixty days after due notice and proof of his death, to her, or her executors, administrators, etc.

All the premiums were paid by the husband, as far as premiums were paid, in cash. At a certain period the dividends which the policy had earned were, by consent of the company, applied to the payment of premiums.

After the issue of the policy plaintiff assigned the same to defendant as collateral security for a debt due from the husband to defendant. At the time of the assignment there were children of the marriage between the husband and plaintiff living.

By New York Laws, 1848, chapter 80, amended Laws 1850, chapter 187; Laws 1862, chapter 70, and Laws 1866, chapter 656, it is thus provided: "§ 1. It shall be lawful for any married woman, by herself and in her name, or in the name of any third person, with his assent, as her trustee, to cause to be insured for her sole use the life of her husband for any definite period, or for the term of his natural life; and in case of her surviving such period or term, the sum or net amount of the insurance becoming due and payable by the terms of the insurance shall be payable to her to and for her own use, free from the claims of the representatives of the husband or of any of his creditors, but such exemption shall not apply where the amount of premium annually paid out of the funds or property of the husband shall exceed three hundred dollars.

§ 2. The amount of the insurance may be made payable in case of the death of the wife before the period at which it becomes due, to her husband or to his, her or their children for their use, as shall be provided in the policy of insurance, and to their guardian if under age."

The court at special term gave judgment for plaintiff, which was affirmed by the general term.

David Leventritt, for appellant.

A. Blumenstiel, for respondent.

ANDREWS, J. This case is governed by the decision in Eadie v. Slimmon, 26 N. Y. 9. The contention that to bring an insurance by a wife upon the life of her

husband within the operation of the act of 1840 it must appear from the terms of the policy, or must be shown by extrinsic evidence, that it was the intention of the assured to avail herself of the provisions of the act, cannot, we think, be maintained. The right of a wife to insure the life of her husband was not given by that act. She had at common law an insurable interest in her husband's life. Reeb v. Royal Ex. As. Co., Peak Adm. Cas. 70; Lord v. Dall, 12 Mass. 115; Loomis v. Eagle Ins. Co., 6 Gray, 396; Conn. Mut. Ins. Co. v. Schaefer, 94 U. S. 457. The amount insured must necessarily be the measure of damages in case of his death. The pecuniary interest of a wife in her husband's life is incapable of exact measurement. The insured, by issuing a policy to the wife, agrees that her interest is at least equal to the sum insured, and the policy is in the nature of a valued policy, and the full amount insured is recoverable in case of death, without proof of actual damages.

Nor did the provision in the second section of the act of 1840- that the insurance by a wife on the life of her husband may, in case of her death before the decease of her husband, be made payable to her children -confer any new power or authorize a contract which before the statute would be unauthorized. There does not seem to be any ground to doubt that before the statute, a provision in a life policy issued to a wife on her husband's life, that in the event of her death before the death of her husband the policy should inure to the benefit of her children, would be entirely valid and enforceable. But the act of 1840 did secure to the wife the sole benefit of an insurance on the life of her husband, procured by or for her and in her name, in case she survived her husband, free from any claim by him or his representative or by his creditors, subject to the limitation that the annual premium paid should not exceed a specified sum.

In this respect the act of 1840 is enabling and not declaratory. The act does not require that it should appear by the policy that it was issued under the act, in order that the insured should have the benefit of its provisions. There are no restrictive terms. The act is remedial and was passed for the benefit of married women and her children and the intention of a married woman insuring the life of her husband to avail herself of its provisions is inferable from its beneficial nature. In Eadie v. Slimmon the policy did not refer to the act, although it might perhaps be fairly inferred that the parties had the act in view from the fact that it incorporated substantially the language of the second section in providing for the payment of the insurance to the children in case of the death of the wife before the decease of her husband. But in Wilson v. Lawrence, affirmed in this court (76 N. Y. 585), the policy made no reference to the act; nor did it make any provision for children. It was, aside from the endowment feature, substantially like the policy in this case. It was held that the policy was subject to the act of 1840, and unassignable within Eadie v. Slimmon and other cases. The learned judge who delivered the opinion at general term, in considering whether the policy was subject to the act of 1840, and in answer to the suggestion upon the subject that it made no provision, for children, remarked that it did not appear that there were children of the marriage. But this circumstance seems to me to be immaterial where the question is as to the wife's power to assign her interest. The act as amended expressly provides that the insurance may be made payable in case of the death of the wife before the insurance becomes due to the husband or to his or their children as may be provided. Laws of 1862, chap. 70; Laws of 1866, chap. 656. The omission to provide for the devolution of the fund or claim in the contingency of the wife's death before the death of her husband, or as in this case, the deliberate statement in the application in answer to the

question, For whose benefit is the insurance to be effected? that it was for the benefit of the wife, and the striking out of the words "and her children," does not, we think, rebut the presumption that the wife in taking the policy had in view the act of 1840. But we do not mean to decide that extrinsic parol evidence, showing that the insurer and insured did not intend to make the policy subject to the act of 1840, would be allowable to control the legal effect of the contract. That question can be determined when it arises.

It is claimed that the policy in question is not within the act of 1840, and is not therefore subject to the rule of non-assignability established in Eadie v. Slimmon, for the reason that it is an endowment policy-that is, a contract by the insured in the alternative, in consideration of the payment by the insured of an annual premium, to pay the sum insured at the expiration of a term of years, or on the death of the husband at any earlier period. The husband insured by the policy in this case is still living, and the period has not arrived when the obligation of the insurer to pay has become absolute; and it is insisted that the assignment of the wife sought to be annulled in this action was valid, so far at least as to convey her contingent interest, in the event of the husband surviving the time when the policy becomes absolutely payable. This contention is based on the claim that only contracts for life insurance strictly - that is, insurance payable in the event of death are within the purview of the act of 1840, and that the reason assigned in Eadie v. Slimmon for holding that policies of life insurance payable to wives are non-assignable, is that the Legislature had in view the protection of widows and orphans who would or might be frustrated if a wife was permitted to assign the policy during her husband's life; that this reason has no application to the endowment feature of a life policy which contemplates the maturity of the contract during the husband's life. There is considerable force in the argument that an endowment policy was not in the mind of the Legislature when the act of 1840 was passed. The original act provides that "a married woman may cause her husband's life to be insured for her use for any definite period or for the term of his natural life;" and further provides that the insurance shall be payable to her "in case of her surviving her husband," and refers to no other event upon the happening of which she is entitled to receive it. It seems reasonable therefore to suppose that the words "any definite period" in the original section referred to an insurance for a limited period, but nevertheless to an insurance payable only in the event of death. This construction justifies the remark of Denio, J., in Eadie v. Slimmon, that the statute "looked to a provision for a state of widowhood and for her orphan children." The policy in that case was issued in 1852. But the act of 1840 was amended by chapter 656 of the Laws of 1866, by striking out the words, in the first section of the original act, which made the insurance payable to the wife "in case of her surviving her husband," and inserting in their place the words "in case of her surviving such period or term." This amendment seems to have been intended to bring within the act insurance of the precise character of the one in question.

An endowment policy is an insurance into which enters the element of life. In one aspect it is a contract payable in the event of a continuance of life; in the other, in the event of death before the period specified. The amendment of 1866 entitles the wife to the insurance whenever she survives the period or term of insurance, and her right is not limited as in the act of 1840, alone upon the event of her surviving her husband, and seems to contemplate as well the case of an insurance payable before the death of the husband as one payable on his death. We are of opinion

that the principle of non-assignability in Eadie v. Slimmon applies to this case.

The statute as it now stands makes provision as well for wife and children, the husband living, as for widow and orphans, and there is no ground for imputing a different legislative policy in respect to an insurance payable during the husband's life and one payable only on his death.

We are not called upon to indicate the doctrine of Eadie v. Slimmon. The inference of a legislative intent to make a policy procured by a wife on her busband's life unassignable deduced by the court in that case has sometimes been thought to rest on a slender foundation; but the case has been repeatedly followed. Barry v. Eq.Life Ass. Co., 59 N. Y. 587; Barry v. Brune, 71 id. 262; Wilson v. Laurence, 76 id. 585.

The Legislature, in conferring by subsequent acts a limited power of assignment, have recognized the policy attributed to the legislation of 1840, chapter 821, Laws of 1873, chapter 248, Laws of 1879. The assignment in this case was not within the authority conferred by those acts.

The fact that the premium paid may have exceeded the sum limited in the statute presents no question between these parties.

We think the judgment is right and should be affirmed.

WESTERN UNION TELEGRAPH Co. v. NEILL.

A condition in a form furnished by a telegraph company, upon which a half-rate message is written, that the telegraph company shall not be liable for error in the transmission of such message, etc., to an amount exceeding ten times the sum paid it for transmission, assented to by the sender, is valid, and limits the liability of the company to the amount stipulated for an error arising from other cause than its misconduct, fraud or want of proper care.

ACTION by Andrew Neill to recover the value of

property claimed to have been sold by mistake in consequence of an error in a telegram sent over the lines of defendant below to him. An offer for the purchase of a quantity of real estate owned by plaintiff below was sent by his agent in Seguin to him in Austin. This offer as sent included property known as the "home place." As received the word "home" was changed to "have," so as not to include that property, in consequence of which plaintiff was misled and telegraphed back to his agent a direction to accept the offer, which was done and the entire property conveyed. Other facts appear in the opinion. Plaintiff recovered $1,750, and defendant took a writ of error.

BONNER, J. The controversy in this case arises from an error in the transmission of a message over the lines of the appellant, the Western Union Telegraph Company, sent to the appellee, Andrew Neill, by his agent, A. J. Fry.

The message was one known as a half-rate or night message, being sent at half the rate charged for a day message.

The principal form accompanying it and underneath which it was written, together with the message itself, the latter being in italics, is as follows:

THE WESTERN UNION TELEGRAPH COMPANY.

Half-Rate Message.

The business of telegraphing is liable to errors and delays arising from causes which cannot, at all times, be guarded against, including, sometimes, negligence

of servants and agents whom it is necessary to employ. Most errors and delays may be prevented by repetition for which, during the day, half price extra is charged in addition to the full tariff rates.

The Western Union Telegraph Company will receive messages for transmission between stations in the United States east of the Mississippi river, to be sent without repetition during the night at one-half the usual rates, on condition that the sender will agree that he will not claim damages from it for errors or delays, or for non-delivery of such messages, happening from any cause other than the acts of its corporate officers, beyond a sum equal to ten times the amount paid for transmission, and that no claim for damages shall be valid unless presented in writing within twenty days from sending the message.

The company will be responsible to the limit of its lines only, for messages destined beyond, but will act as the sender's agent to deliver the message to connecting companies or carriers, if desired, without charge and without liability. WM. ORTON, President.

G. H. MUMFORD, Secretary. Send the following half-rate message, subject to the above terms, which are agreed to:

To Col. A. Neill, Austin:

Seguin, May 8, 1878.

Sold block four, five and six, and have place for two thousand five hundred, two thousand down, five hundred nine months. A. J. Fry.

The error occurred in substituting the word "have" for the word "home."

It is not contended but that the agent, Fry, knew of the above rules and regulations of the company in regard to sending their message, and the difference between what is known as a full-rate or day message, and a half-rate or night message. Breese v. Tel. Co., 48 N. Y. 132.

Among other defenses relied upon are, that the printed rules and regulations accompanying the message as written and delivered to the company, constituted the contract between the parties, and that this should govern the question of the liability of the company and the amount to be recovered against it; that under the terms of the contract this damage should be limited to the sum of $5, being ten times the amount paid the company, and could not include the sum of $1750 for which the judgment below was rendered; and further, that appellee, Neill, was charged with notice of the ambiguity in the message as received by him, it appearing that there was a probable error in it, and that in order to hold the company liable he should have had the message repeated, and thus in all probability have corrected the error and avoided the damage.

These general propositions bring up the principal questions believed to be necessary to the decision of the case as now before us.

In the application of the principles of law to the new and intricate agency of telegraphy, it may reasonably❘ be expected that mistakes and conflicting decisions

would be made until time, experience and reflection should settle the proper basis upon which this application should be made.

Whether or not telegraph companies should be held as common carriers, with all their common-law liabilities, has been the subject of much discussion and conflicting decisions.

In many jurisdictions their rights, duties and liabilities have been defined by statute, and thereby much of the difficulty has been solved, but where, as in this State, there has been no such legislation, and where it is comparatively a question of first impression, we must find the proper solution in such common-law principles as are applicable, and in the decisions of those courts in which, in our opinion, this application has been most appropriately and correctly made.

The great weight of authority and which from the nature of the employment of telegraph companies seems founded upon reason, is that though in some essential particulars they partake of the character of common carriers, they are not strictly such, and should not be held to the same degree of strict responsibility. Scott & Jarnagan's Law of Tel., part 2, ch. 4; 2 Sedg. on Dam. (7th ed.), 122, note c; 2 Redf. Railw. (4th ed.) 290; Cooley on Torts, 646; 2 Thomp. on Neg. 836, citing many authorities in note 3; Ellis v. Tel. Co., 13 Allen, 226; Grinnell v. Tel. Co., 113 Mass. 301; Tel. Co. v. Carew, 15 Mich. 525; Binney v. Tel. Co., 18 Md. 358; Breese v. Tel. Co., 45 Barb. 274; reaffirmed, 48 N. Y. 132; Aiken v. Tel. Co., 5 S. C. 358.

As our Legislature however has delegated to telegraph companies the power to exercise the right of eminent domain, and as their employment is quasi public, they should so far be governed by the law applicable to common carriers, that the general duty devolves upon them to serve the public, and act impartially and in good faith to all alike, and to send messages in the order received. But they are not, as is the general rule with common carriers, insurers simply by reason of their occupation, but are held only to a reasonable degree of care and diligence in proportion to the degree of responsibility, and it follows that they have the right, in a proper manner and within a proper limitation, to restrict their liability for damages. Otherwise, as said by Lord Chief Justice Jervis, in McAndrews v. Tel. Co., they "would become what it is not pretended that they are, general insurers against loss arising from casualties over which they have no control." 17 C. B. 13; Breese v. Tel. Co., 48 N. Y. 132; Ellis v. Tel. Co., 13 Mass. 226; Tel. Co. v. Gildersleeve, 29 Md. 246; Hibbard v. Tel. Co., 33 Wis. 565.

In accordance with these principles, and which have been often recognized by the legislative departments also, it may now be considered as settled law, that telegraph companies can, by express contract or by proper rules and regulations contained in printed notices, or otherwise, and brought to the knowledge of those with whom they deal, under such circumstances as to create an implied contract, limit their liability for delays and errors in transmitting and delivering messages, except when caused by the misconduct, fraud or want of due care on the part of the company, its servants or agents.

In cases of this character that exemption from liability cannot be claimed for such misconduct, fraud, or want of due care, is a cardinal doctrine of the common law which has become deeply rooted into our own jurisprudence, and the wisdom of which has received the sanction of ages. 2 Sedg. on Dam. (7th ed.) 130; 2 Redf. on Railw. (4th ed.) 290; 2 Thomp. on Neg. 839. § 4; Tel. v. Carew, 15 Mich. 525; Ellis v. Tel. Co., 13 Allen, 226; Birney v. Tel. Co., 18 Md. 358; Tel. Co. v. Gildersleeve, 29 id. 232; Breese v. Tel. Co., 45 Barb. 274; reaffirmed, 48 N. Y. 132; Camp v. Tel. Co., 1 Metc. (Ky.) 164; Passmore v. Tel. Co., 78 Penn. 238; Aiken v. Tel. Co., 5 S. C. 358.

What rules and regulations are reasonable and what are not has given rise to many judicial decisions.

That they can so limit their liability in regard to night messages, which are more subject to delay from natural and other causes, that would readily suggest themselves, would seem very reasonable, and particularly when the party who avails himself of that kind of message, at a reduced rate, does so voluntarily in preference to what is known as a day message.

We fail to perceive, on principle, why in such case the parties may not, as they did here, agree upon a sum certain in the nature of liquidated damages for an error or delay arising from other cause than misconduct, fraud, or the want of proper care as above shown. Aiken v. Tel. Co., 5 S. C. 358.

If the testimony however should show that the failure to properly transmit or deliver a message arose from such misconduct, fraud or want of due care, then it might be very seriously questioned indeed whether the same reasons of public policy which prohibited exemptions from liability on these grounds would not also prohibit a limitation upon the true amount of damages which should be recovered, telegraphic communication having become now almost a social as well as a commercial necessity, and the want of competing lines, giving to the company greatly the advantage ground over the public.

This question however is not necessary to the present appeal, and not having been fully argued by counsel we do not make any decision upon it.

Bartlett v. Tel. Co., 62 Me. 209, was a suit for damages caused by an error in a night message, and was based upon the reasoning in the preceding case of True v. Tel. Co., 60 id. 9, to the effect that the company could not, on grounds of public policy, claim a general and unlimited exemption from any and all liability beyond the sum paid, "from whatever cause accruing," not excepting even gross negligence or the want of the lowest degree of care. That this was in effect no contract at all as the company was not bound either to transmit it correctly or to deliver it when transmitted; and that the agreement in case of failure to simply repay the money received was no sufficient consideration. That the construction placed upon the contract, in the case of True v. Tel. Co., was a strained one, is clearly shown in a comment on that case in Aiken v. Tel. Co., 5 S. C. 374, and in Grinnell v. Tel. Co., 113 Mass. 305, it is said by Gray, chief justice, that the opinion of the majority of the court in True v. Tel. Co., supra, appears to be founded on a false analogy between telegraph companies and common carriers, and is opposed in a very able dissenting opinion by Chief Justice Appleton.

We do not admit the correctness of the principle announced in the above case of Bartlett v. Tel. Co., 62 Me. 209, that if there is expressed in the contract an invalid ground upon which exemption is claimed by the company, that this taints the whole contract, and will render void other grounds therein contained which may be valid. Such has not been the rule in other courts of high standard. MacAndrew v. Tel. Co., 17 C. B. 3; Ellis v. Tel. Co., 13 Allen, 226; Passmore v. Tel. Co., 78 Penn. 245.

It is a well known rule of construction that one part of a law may be unconstitutional and hence void and another part valid, and we think the same principle would apply to a contract like the one under consideration.

The other cases of night messages which have come under our observation are generally those in which the company is sought to be held liable, not as in the case now before the court, for an alleged error in the message, but for want of due care and diligence, either in not transmitting it at all or in not delivering it in due time, and which would come within one of the

exceptions before shown, as not constituting a sufficient ground of exemption.

Among the cases of night message which come within the above designations may be mentioned the following: True v. Tel. Co., 60 Me. 9; Hibbard v. Tel. Co., 33 Wis. 559; Candee v. Tel. Co., 34 id. 471; Tel. Co. v. Fontaine, 58 Ga. 433; and the cases cited by counsel for appellee, decided by our Court of Appeals at the late Galveston term. Tel. Co. v. Weiting.

We are of the opinion that the company had the right to make the limitation of their liability in regard to the night message under consideration, and that it was valid and binding to the extent to protect them from damages for an error in the transmission of the message, unless shown to have been occasioned by the misconduct, fraud, or want of due care of itself, its servants or agents; and that unless thus occasioned the measure of damages is the price agreed upon, ten times the value of the sum paid to transmit the message.

We are further of opinion that the mere fact that there may have been an error in the message as received by the operator at Austin and delivered to appellee, Neill, is not of itself, sufficient proof of negligence to entitle the plaintiff to recover, as the error may reasonably be referred to some other cause embraced within the exemption clause contained in this contract. Aiken v. Tel. Co., 5 S. C. 577; Sweatland v. Tel. Co., 27 Iowa, 455; Tel. Co. v. Gildersleeve, 29 Md. 248.

Another regulation of telegraph companies held to be reasonable by the great weight of authority is the right to demand, in a proper case, as a condition of liability, that the message be repeated at a reasonable cost. 2 Sedg. on Dam. (7th ed.) 130; 2 Redf. Railw. 290, § 17, note 15; 2 Thomp. on Neg. 841, § 6; Tel. Co. v. Carew, 15 Mich. 525; Ellis v. Tel. Co., 13 Allen, 226; Redpath v. Tel. Co., 112 Mass. 71; Grinnell v. Tel. Co., 113 id. 229; Mann v. Tel. Co., 37 Mo. 472; Breese v. Tel. Co., 45 Barb. 274; reaffirmed, 48 N. Y. 132; Camp v. Tel. Co., 1 Metc. (Ky.) 164; Passmore v. Tel. Co., 78 Penn. St. 238; McAndrew v. Tel. Co., 17 C. B. 3; S. C., 33 Eng. L. & Eq. 180.

The testimony of appellee, Neill himself, shows that upon the face of the message there was an ambiguity in the use of tho word "have," which required an explanation, and that for this purpose he went to the office to have the message repeated. That this was not done however for the reason that the operator said that it was correct as received by him. This was before any damage had accrued, and when in all probability it might have been avoided by having the message repeated. We are of the opinion that in an action ex contractu, the failure to comply with such stipulation without sufficient excuse shown, would be such non-performance of an essential condition precedent, as should exonerate the company from greater liability than that agreed upon; and further, that in such case it would not be a sufficient excuse that reliance had been placed upon the subsequent declarations of the operator, that the message was correct as received by him; to permit this would be to allow the mere hearsay statement of an operator, whose business it was to send and receive messages, to subsequently vary the terms of a prior contract made by the principal, and this too not only without consideration but by releasing the consideration agreed upon for the guaranty against error. Tel. Co. v. Gildersleeve, 29 Md. 248; Grinnell v. Tel. Co., 113 Mass. 306-7; Sweetland v. Tel. Co., 27 Iowa, 458; Aiken v. Tel. Co., 5 S. C. 377.

We are further of opinion that in an action ex delicto where from the face of the message or otherwise, knowledge is brought home to the party to whom the message is sent, that there is a probable error, that the failure to have the message repeated, where this

can be done before the damage 'has accrued, would be such contributory negligence as should defeat his right to recover. Passmore v. Tel. Co., 78 Penn. St. 238, was like the case now under consideration, a suit for damages, for an error in a message relating to the sale of land. The message as received to be transmitted was as follows: "I hold the Tibbs tract for you; all will be right." As delivered by the company, "I sold the Tibbs tract for you," etc. In that case it was held that the failure to have the message repeated was such contributory negligence as relieved the company from liability.

Besides it is a salutary principle of law that every one, as far as practicable, should endeavor to avert the damages which may be occasioned to him by the wrongful act of another; that he should not suffer damages to accumulate which by reasonable exertion he might have avoided. 1 Sedg. on Dam. (7th ed.) 164-5; Champion v. Vincent, 20 Tex. 816; Mather v. Butler Co., 28 Iowa, 253; R. Co. v. Rodgers, 24 Ind. 103; Heavilon v. Kiramer, 31 id. 241; State of Mo. ex rel. Rice v. Rowell, 44 Mo. 436.

Whether under this principle appellee, Neill, should not have sought to lessen the damage by instituting suit against his vendee, Johnson, to cancel his deed on the ground of mistake, and if necessary have made the company a party to the suit, is worthy of serious consideration, but in regard to which we do not feel prepared to give an opinion.

That the notice accompanying the message in terms applied to those sent east of the Mississippi river should not, in our opinion, in the present case, prevent its application to one sent west of that river. That part of the notice was evidently a mere form, and its real essential requisites were agreed to by the parties, and hence would apply to the case under consideration.

As the cause was submitted to the court without the intervention of a jury, and as the record does not disclose any special findings of law or fact by the learned judge presiding, we are not advised of the particular ground upon which his judgment was based. As however it is evident that it must have been some view of the law inconsistent with this opinion, the judgment below is reversed and cause remanded.

FRAUD AT ELECTION A COMMON-LAW OFFENSE.

PENNSYLVANIA SUPREME COURT, MAY 2, 1881.

COMMONWEALTH OF PENNSYLVANIA V. MCHALE. Fraud committed at an election of public officers is an indictable offense at common law.

NDICTMENTS against defendants McHale and two

public officers. The facts appear in the opinion. The indictments were quashed by the court below and the Commonwealth took a writ of error.

Guy E. Farquhar, C. W. Wells and John F. W. Hughes, for plaintiff in error.

Lin Bartholomew, James B. Reilley and John B. Ryon, for defendants in error.

PAXSON, J. The court below quashed the indictment in each of the above cases, upon the ground that the offenses charged were barred by the statute of limitations. If, as was assumed by the learned judge, the indictments are under the act of July 2, 1839, and its supplements, and the limitation in said act is not enlarged by the 77th section of the Criminal Procedure Act of 31st of March, 1860, his conclusion is not inaccurate. A careful comparison of the several indictments with the act of 1839 and its supplements, leads

us to the conclusion that they are not laid under it, and hence do not come within its limitation. One of them, Commonwealth v. John J. Kelly, No. 300, January term, 1880, may have been intended to come within the provisions of section 106 of said act; but the indictment does not charge the precise offense defined in said section, although it does one of a similar nature. Nor are we able to find any other act of assembly which will sustain these indictments. If however the acts charged are offenses at common law, they would not come within the limitation claimed for the act of 1839. The 178th section of the Crimes Act of 31st of March, 1860, P. L. 425, provides that "every felony, misdemeanor or offense whatever, not specially provided for in this act, may and shall be punished as heretofore." This is a saving section, leaving every crime not specially provided in this act punishable as heretofore. Report on Penal Code, 37. Under it an indictment will lie against a woman as a common scold. Commonwealth v. Mohn, 2 P. F. S. 243.

The indictment against Anthony McHale contains three counts. In the first count it is charged that "intending to procure a false count and return of the votes cast by the electors," etc., he did "make false and fraudulent entries in the books kept by the clerks at said election, in said election district, which books are commonly known as the lists of voters of the names of divers persons, to wit: twenty-one persons, whose names are as follows," etc. The second count charges that with like intent he did "deposit among the ballots cast at said election, in said election district, by the electors voting thereat, false and fraudulent ballots of a large number, to wit: twenty-one ballots," etc. The third count charges that with like intent he did, "with the connivance of the election officers holding said election, undertake and assume to count the ballots cast by the electors voting at said election, in said election district, and did falsely, fraudulently, maliciously and unlawfully make a false and fraudulent count of said ballots, as to make it appear that two hundred and eleven votes were deposited for one Adolph W. Schalck for the office of district attorney, when in truth and in fact he did not receive more than one hundred and eighty-five votes," etc.

The indictment against James T. Kelly charges that with a similar intent to procure a false count he did "deposit among the ballots cast at said election, in said election district, by the electors voting thereat, false and fraudulent ballots of a large number, to wit, twenty-one ballots."

The indictment against John J. Kelly charges substantially the same offense as is set out in the first count of the indictment against McHale.

Some of these offenses, perhaps all of them, are indictable under the act of 1839 and its supplements, when committed by election officers. The defendants were not election officers; at least they were not indicted as such.

It must be conceded that offenses which strike at the ' purity and fairness of elections are of a grave character. Are they indictable at the common law? This is a serious and at the same time comparatively new question. In considering it we have little in the way of authorities to guide us.

It was assumed by the learned counsel for the defendants that an indictment will not lie at common law for such acts. In their printed argument they dismiss the subject with this brief remark: "Offenses against the election laws are unknown to the common law; they are purely and exclusively of statutory origin." It may safely be admitted that if the question depends upon the fact whether a precise definition of this offense can be found in the text-books, or perhaps in the adjudged English cases, the law is with the defendants. This however would be a narrow view, and we must look beyond the cases and examine the prin