and this country, seems to be clear. R. v. Robinson, 1 Moody, 413; Douglass v. R., 13 Q. B. 74; Barnes". The State, 19 Conn. 398; The State v. Ambs, 20 Miss. 214; 1 Bishop's Cr. Pro. (3d ed.) SS 455, 1005 a; Wharton's Cr. Pl. & Pr. § 910. Indeed, in this State, the common law rule as to misdemeanors may, in the discretion of the court, be extended to felonies. Bailey v. The State, 4 Ohio St. 440; Boose v. The State, 10 Ohio St. 575. And in Massachusetts there may be a lumping sentence embracing all the punishment that might be inflicted by separate sentences. Regularly, where the indictment contains more than one count, the verdict should respond specifically to each count, and not generally to all; and where the verdict is guilty as to more than one count, there should be judgment as to each, the sentences to operate consecutively. To refuse a request that the court direct the jury to make such separate finding, would no doubt be error. Commonwealth v. Carey, 103 Mass. 214. Indeed, doubt has been expressed "whether, in any case, a general verdict of guilty will authorize separate penalties to be inflicted upon separate counts of the indictment." Buck v. The State, 1 Ohio St. 61, 62. But we are of opinion that where, on such general verdict, the court has sentenced as to each count, it will be presumed, in the absence of any showing to the contrary, that several offenses were proved. 1 Bishop's Cr. Pro. (3d ed), §§ 1015, 1325-1327; Wharton's Cr. Pl. & Pr., § 907. Motion overruled. [This case will appear in 37 O. S.] CIRCUIT COURT, UNITED STATES. THE LAKE SHORE & MICHIGAN SOUTHERN V. THE NEW YORK, CHICAGO & ST. LOUIS RAILWAY CO. SEPTEMBER 5, 1881. 1. Real estate acquired by a railroad corporation by purchase or condemnation and held for the necessary enjoyment of its essential franchises, cannot be taken from it by another railroad corporation by the usual method of appropriation. 2. But the extent of such acquisition is not conclusively determinable by the directors of the first corporation; and where another corporation seeks to make such appropriation, it is a proper subject of judicial inquiry whether the real estate proposed to be taken is reasonably necessary to the first corporation. 3. In determining this question every reasonable intendment will be made in favor of the primary rights of the first corporation, and in measuring their extent, there must be a liberal consideration of the future as well as the present necessities of the corporation. 4. But where at a preliminary hearing the affidavits do not fully disclose the necessities present and prospective of the first corporation, and the case is not free from doubt, a preliminary injunction will not be granted to restrain the second corporation from constructing its road over land of the first corporation, where the acts complained of will not immediately interfere with the business or operations of the first corporation. In such case the court will not undertake to determine the rights of the parties until final hearing. Sur motion for a preliminary injunction. [The railroad in course of construction by the respondent company, The New York, Chicago & St. Louis Railway Company, runs side by side with the road of the plaintiff company from Buffalo, N. Y., to Cleveland, Ohio, passing through the part of Pennsylvania wherein lies the land in dispute. The plaintiff had built several spur tracks reaching out on the south side of the main line to gravel pits at some distance therefrom. The respondent company proceeded to construct their main line across these spur tracks, upon which the plaintiff made application for a preliminary injunction, claiming the exclusive right to use and control the ground occupied by their spur tracks by virtue of the verdict and order of condemnation giving them title and possession thereof. The opinion of the court denying the motion for a preliminary injunction, fails to show anything more than an evasion of the question involved. The high reputation of Mr. Acheson as a lawyer, before his appointment to the bench, gives certain regret that the question of the right to condemn and appropriate previously condemned and appropriated property, was not met in a more manly way. If the plaintiff has any rights the respondent is bound in law to respect, why not so award? And if not so, why request or suggest to the defendant that he shift his line and not interfere with the plaintiff's tracks? The opinions we credit to the Pittsburgh Legal Journal. EDS. OHIO LAW JOURnal.] ACHESON, D. J. At the late sitting of the Circuit Court at Erie, I heard and refused a motion for a preliminary injunction in this case. The importance of the controversy is such, however, that a re-argument was allowed, and the case has been heard by the Circuit Judge and myself upon fuller proofs. Of these proofs, however, I may say, that they consist in the main of ex parte affidavits, and in some particulars are less full than is desirable. For example, they afford little information as to the extent of the business done at Harbor Creek Station. It is true, we have the opinions of respectable and intelligent witnesses as to the requirements of the plaintiff company at that point; but in matters of fact the affidavits are deficient. In respect to the plaintiff's properties occupied, or proposed to be occupied, by the defendant at Twenty-Mile Creek, Sixteen-Mile Creek, the Brawley piece and the gravel pit, we have had no difficulty in reaching a conclusion adverse to the plaintiff's application. As to the wood-yard at Moorhead's the case is not entirely clear. But as the answer and the affidavit of Mr. McGrath, the defendant's superintendent of construction, (as we understand them), declare that the defendant does not intend to take up or remove either of the plaintiff's spur tracks at this place, or in any wise interfere with the plaintiff's use thereof, we think that the present proofs do not make out such case as calls for a preliminary injunction. At the final hearing, with all the evidence regularly taken before us, we can more intelligently and safely determine the rights of the parties. With some hesitation we announce a similar conclusion in respect to the land at Harbor Creek Station. I myself entertain serious doubt whether any portion of the plaintiff's land at this point is open to appropriation by the defendant; but for lack of complete information my mind has not reached a settled conviction. If the right of appropriation exists, it certainly ought to be exercised so so to avoid all unnecessary injury to the plaintiff. The defendant's line as located divides the plaintiff's property, cutting off a strip of forty-one feet in width along Boynton's line. If there is no engineering difficulty or other obstacle in the way the defendant had better consider whether it ought not to shift its location down to Boynton's line and thus leave the plaintiff additional available space south of its southerly track. Upon the whole case as now presented, and after a careful consideration thereof, the court is of opinion that the motion for a preliminary injunction should be denied. And it is so ordered. MCKENNAN, Cir. J., concurring. tioned or allowed; and in measuring their extent, there must be a liberal consideration of the future as well as the present necessities of the complainant, touching the use of existing tracts, the construction of additional ones, the convenient storage of its freight at all seasons, and the unembarrassed transaction of freight business. In view of these considerations, the suggestion of Judge Acheson has great force, that it might be most prudent on the part of the respondent to modify its location at Moorheads and Harbor Creek. UNITED STATES CIRCUIT COURT, W. D. PENDLETON v. KNICKERBOCKER LIFE INS. CO. Life Insurance-Draft taken in Payment of PremiumCommercial Law. Where an insurance company takes a draft in payment of a premium, the company is bound to comply with the rules of the commercial law as to negotible paper, as to presentation for acceptance and payment. Action on a life policy. The company took from the policy holder, on account of the premium, a draft dated July 14, 1871, reading: "Three months after date, without grace, pay to The opinion of Judge Acheson announces the the order of the Knickerbocker Life Insurance Co. decision of the court on the motion for a pre-received, for premium on policy No. 2346, which three hundred and twenty-five dollars, value liminary injunction in this case. The motion was argued before him alone at Erie, and was then denied, but as he assented to the request of counsel for a re-argument, and desired me to be present at it, I consented to sit with him merely that I might render him, by conference and suggestion, such assistance as I could, leaving still with him the ultimate burden of responsible decision. I concur with him in the denial of the motion, and in the reasons given for it. It is undoubtedly true that real estate acquired by a railroad corporation, by purchase or condemnation, and held for the necessary enjoyment of its franchises cannot be taken from it by another corporation, by the usual method of appropriation. But I do not agree with the argument that the extent of such acquisition is conclusively determinable by the directors of the corporation, and that the exercise of their power in this connection is questionable only on the ground of bad faith, as the equivalent of fraud. The power of acquisition is limited by the necessary wants of the corporation, and an exercise of it beyond this limit is not within its protection. I see no reason then why this limitation of the power of a corporation to acquire and hold real estate is not as proper a subject of judicial inquiry, where alleged encroachments by another corporation is to be determined, as the existence of the power itself. I Upon the result of such an inquiry the decision of this case depends. In finally disposing of it, every reasonable intendment must be made in favor of the primary rights of the complainant. At the points of the alleged conflict, no actual encroachment upon these rights can be sanc policy shall become void if this draft is not paid at maturity. (Signed.) S. H. Pendleton," and directed to a firm in New Orleans. The policy contained a condition that it should be void if the draft was not paid when due "without notice to any party or parties interested therein." The defendant claimed that the draft was presented before due and acceptance was refused. No notice of presentment, etc., was given the insured. On motion of defendant for a new trial. HAMMOND. J. The defendant corporation, in order to avoid liability upon the policy, is compelled to assume that it had absolutely no duty whatever to perform in relation to the draft, and that what it did do toward presenting it was merely ex gratia. It was conceded at the hearing that if the money had been in the hands of Greenwood and Co. to pay the draft on the 14th day of October, 1871, when it was due, the company would have been liable if it had failed to present it on that day, and the only question of fact which the company desired to try was whether or not Dr. Pendleton had thus placed funds in the hands of his merchants to pay the draft. This concession seems to have been receded from in the printed brief submitted on this motion for a new trial, and it is now said: "That the receipt of the draft imposed no obligation upon the company to do any thing beyond presenting it for payment, at or after maturity, at the place designated therein, and we very much doubt whether we were bound to go as far as we did on the trial, and show a presentation in fact, for the production of the draft on the trial prima facie established its nonpayment, and the burden of proof to show that it would have been paid on presentation rested. on the plaintiff." This seems to still concede a necessity for presentation at some time, and in order to meet the exigencies of the proof, the occasion of presentation for acceptance is taken as a compliance with that duty; and inasmuch as acceptance was refused, it is said that "on principle, as well as authority, this refusal rendered a demand for payment on the day of maturity unnecessary;" for which Plato v. Reynolds, 27 N. Y. 586, is cited. This statement of the law ignores entirely an essential factor in the rule invoked, and that is due notice of non-acceptance, which was given in the case cited, and must be always, to excuse non-presentation for payment, as the jury were told in this case. 1 Daniel on Neg. Inst. (2d ed.) §§ 449, 598. But the notice not having been given in this case, the jury were properly told that a failure to give it rendered presentation for payment as necessary on the day when the draft fell due as if no presentation for acceptance had been made. Ib SS 449, 454. Indeed, it is possible, although the holders of this draft, payable, as it was three months after date, on a day certain, were not bound to present it for acceptance; that having undertaken to do so, the failure to protest for non-acceptance itself discharged the drawer, and operated to make the payment of the premium complete by making the paper their own absolutely. Ib. § 452; Gracie v. Sanford, 9 Ark. 233. There was scarcely any proof before the jury to justify them in saying that the relations between the drawer and drawee were such as to make the drawing of this bill a fraud that would excuse the laches which seems under modern decisions, to be the only excuse. 1 Daniel on Neg. Inst. (2d ed.) § 450; 2 Ib. §§ 1075-1079. It was repeatedly said in the argument, that no injury could result to the plaintiffs by want of presentation and notice. I do not understand, from the foregoing authorities, that this is now the test by which we determine whether the failure to present and give notice has been excused; but if it be so, this case manifestly falls within the cases of injury, as pointed out by the adjudications cited by this learned author on the commercial law of negotiable instruments. Moreover, there were special circumstances in this case which made the probability of injury much. greater, and the laches more inexcusable. In the first place, we all know that where relations like those between Dr. Pendleton and Greenwood and Co. exist, there would be much more prospect of acceptance where protest where protest would result from refusal than where it is waived, as the agents of the company here assumed to do without Dr. Pendleton's authority. He had not waived protest, and they had no right to do it for him without discharging him from all liability to pay the draft, and thereby releasing the condition for a forfeiture which depended on that liability. Again on the facts of this case, there is good ground t say that there was that obligation on the part of Greenwood and Co. to accept and pay, that a failure to do so would render them liable for consequential damages and require them to idemnify these plaintiffs against the forfeiture claimed in this case, if it should result from their refusal to accept or pay. Sedgwick on Dam. (6th ed.) 84, in notes; Daniel on Neg. Inst. (2d ed.) § 564; Story on Bills, § 398; Hadley v. Baxendale, 9 Exch. 341; S. C. 26 Eng. Law and Eq. 398; Prehn v. Bank, 5 Exch. 92; Riggs v. Lindsay, 7 Cranch, 500; Russel Wiggin, 2 Story, 214, 242. And whether they would be so liable where by the laches of the holder, the drawer had been discharged, or where they could say in their own defence, if this draft had been presented on the day when due, we could and would have paid it, but not being so presented we are now unable, or having parted with the drawer's funds, should not be required now to pay, may be doubtful. Why the holder of a bill of exchange, who has by his negligence released the obligation to pay it, should be allowed to claim a forfeiture for non-payment, is not clear to me; but certainly, if the drawer has by that negligence lost his remedy for damages against the drawee, he should not be permitted to enforce the forfeiture. Hence, there was a greater reason for acting promptly, under the law merchant, with this draft. The burden of proving the presentment was on the plaintiff, and that there was no such proof as the law requires is plain. 1 Daniel on Neg. Inst, 598. There is no little doubt that if the presentment for payment had been made the draft would have been paid. The draft for the cash portion which by calculation appears to have been just enough to cover the interest and agent's commissions was paid; and as precisely the same course had been pursued in reference to the first premium, it appears by the account of Greenwood that that draft was not presented promptly, nor for some days after it was due. This, taken with the proof here as to the mode of of business adopted in reference to this draft, shows that the agents of the company were not so diligent or prompt in their dealings with this policy to justify them in requiring strict and prompt action on his part. Here was a man in the wilds of Arkansas, where communication was difficult at all times some hundreds of miles away from this city, where the insurance agency was located, and many hundreds more away from the city where he did all his financial business and got all the money' to pay his debts. His insurance was solicited at his house by a travelling agent, who recognizing from the nature of his business as a planter that he would not be in funds till his crop matured, took a long time draft on this commercial house for the premium, which was paid. Then, when the second premium was about to fall due, the process is repeated. Now, while it must be admitted that the commercial law did not require it, acting in a spirit of liberality and fairness, it does seem to me that looking at all the facts, if the company intended to rely upon the forfeiture with that strictness it now does, these agents should have forwarded the draft prom ptly-far Error to the Court of Common Pleas of Clearfield County. MERCUR, J. This contention is whether a subscription made on Sunday toward the erection of a church edifice is void. A contract made on Sunday is not void at common law: Kepner v. Keefer, 6 Watts, 231; Fox v. Mensch, 3 W. & S., 446, Shuman v. Shuman, 3 Casey 90. If then this contract is void it is by reason of the Act of 22d of April, 1794. That act declares "If any person shall do or perform any worldly employment or business whatsoever on the Lord's day, commonly called Sunday, works of necessity and charity only excepted," and such other exceptions as are mentioned in the proviso, every person so offending shall be subject to a penalty as in the act prescribed. It may be conceded that the making of this subscription is not a work necessarily done on Sunday. The question then is whether the raising of money to build a house of worship is a work within the meaning of the act, or is the solicitation of contributions for that purpose from a congregation assembled on Sunday for religious worship a work of charity? more promptly than they did for acceptance, with instructions to protest and give notice if not accepted, so that Pendleton would have timely warning to prepare for payment and save the immense forfeiture that impended over him. Failing in this, the least they could do was to forward it promptly for payment, which they did; but by the neglect of the New Orleans agent it was not presented,-certainly not at maturity, and, as I believe from the circumstances, never at all. This is not a case, as Mr. Justice Woods said in Thompson v. Ins. Co. 2 Woods, 547, where there is an attempt to collect the policy without paying the premium, but where there is an attempt to avoid payment of the policy by taking advantage of the literalism of the contract to defeat the ordinary effect of that negligence on the part of the company which would prevent it from recovering on this draft as if this were an ordinary transaction. Why there should be any different result of this negligence when the consideration of the draft is a premium of life insurance is beyond my comprehension. It is true there was a further security for payment in the condition for a forfeiture, but that security was described by, and depended upon the terms of the contract; not only those contained in the language of the draft and the policy, if you please, but likewise those imported into the contract by the law merchant when this negotiable instrument was taken in payment of the pre-It, however recognizes Sunday as the proper day mium. The cases of Pitt v. Berkshire Ins. Co. 100 Mass. 500; Roehner v. Ins. C. 63 N. Y. 160; Thompson v. Ins. Co. supra; Baker v. Ins, Co. 43 N. Y. 286; Roberts v. Ins. Co. Disney, 106; and Howell v. Ins. Co. 44 N. Y. 276, 2 with others that might be cited to same effect, same effect, have no application to a case like this, and for the plain reason that there is a very essential distinction betwen the undertaking of the maker of a negotiable promissory note with a condition like that found in this case, and that of a drawer of a bill of exchange. The one is an absolute and unconditional promise to pay, and if not otherwise expressed, as these cases properly hold, the duty of the maker is to hunt up the creditor and pay him wherever found, and no demand is necessary to complete the forfeiture. The other is only a conditional promise to pay, and is itself defeasible if the condition is not complied with by the holder of the paper. Motion overruled. SUPREME COURT OF PENNSYLVANIA. EDMUND DALE, TRUSTEE, v. BENJAMIN KNAPP. OCTOBER 2, 1881. The support of religious societies is a charity in a broad Catholic sense, and whatever is morally fit and proper to be done on Sunday in furtherance of the great object is likewise a charity. A subscription made on Sunday towards the erection of a church is a well recognized charitable work of active goodness. It is not prohibited by the Act of 22d April, 1794, and an action will lie to enforce payment of such subscription. No man can legally be compelled to contribute towards the erection of a house for public worship, nor to attend or support religious services therein. The statute imposes no such obligation. for public worship. It leaves every one free to use the day for that purpose or refrain from such use. It is designed to compel cessation of all those employments which will interfere with or interrupt the exercise of religious services, either public or private, on that day. The right to so worship is protected by its penal enactments. Each person has an indefeasible right to worship Almighty God according to the dictates of his own conscience. Each is at liberty to use Sunday for the purpose contemplated by the statute. If he refrains therefrom, he shall not so use the day as to annoy others who may be engaged in religious worship: Johnson v. Commonwealth, 10 Harris, 102. The purpose of the law is to protect the day for the comfort of those conducting or attending religious worship. Charity is active goodness. The means which long established and common usage of religious congregations show to be reasonably necessary to advance the cause of religion are not forbidden, and may be deemed works of charity within the meaning of the statute. It is not essential that they be purely charitable. It is sufficient if they so far partake of that character as to be recognized by the congregation as a part of its active goodness, and are not expressly forbidden by the statute: Common wealth v. Nesbit, 10 Casey: 398. The inclination of this court has long been not to permit a person to set up this law against another person from whom he has received a meritorious consideration or on whom he has inflicted an injury. It was therefore said in Mohney v. Cook, 2 Casey, 342, that the law relating to the observance of the Sabbath defines a duty of the citizen to the State and to the State only. It was there held, that one who had erected an obstruction in a navigable stream whereby the boat and cargo of another were wrecked on Sunday, could not, in an action for such injury, set up as a defense that the plaintiff was unlawfully engaged in navigating his boat on that day. So it was held the hiring of a carriage on Sunday by a son to visit his father created a legal contract although no reason was shown for visiting him on that day, other than flows from a general filial duty and affection: Long v. Mathews, 6 Barr, 417. It is not a violation of the act for a hired domestic servant to drive his employer's family to church on Sunday in the employer's private carriage: Commonwealth v. Nesbit, supra. A will exected on Sunday is not void, although at the time the testator be in his usual state of good health and live five or six months thereafter: Beitman's Appeal. 5 P. F. Smith, 183. Contracts for services on Sunday of the preacher, the sexton, the organist and the singers are not illegal, although these persons may engage in such employment as a means of livelihood. Their services are in furtherance of the same great charity. The custom of soliciting contributions on Sunday from congregations assembled for religious worship, is very general, and has existed from an early period of time. With some denominations it may be for a greater variety of objects than with others. Sabbath offerings may be for the incidental expenses of the church; to light and warm the house, to pay the organist and sexton; to assist the poor; to repair, enlarge and rebuild the church edifice; to support foreign and domestic missions. The latter often extends to furnishing aid to poorer congregations towards erecting houses of worship. If it be illegal to give or agree to give for such objects on Sunday it must be illegal to solicit the giving. We are not aware it has ever been held that the preacher became liable to the penal provisions of the statute by soliciting from the pulpit such contributions. nor any of the officers of the church for taking up the collection. Whether the sum be large or small does not change the principle applicable to the transac tion. It is true there is a legal distinction between having given and agreeing to give, yet inasmuch as we think a subscription towards the erection of a house of public worship is a work of charity, such agreement is not prohibited by the Act of 22d of April, 1794. The conclusion at which we have arrived is not in accord with the doctrine assumed in Catlett v. The Trustees, etc., 62 Indiana, 365, but in principle it is in harmony with the rule declared in Flagg v. Millburg, 4 Cushing, 243; Bennett v. Brooks, 9 Allen, 118; Doyle v. Lynn et al., 118 Mass., 195, and directly sustained in Allen v. Duffy, decided last year by the Supreme Court of Michigan, and reported in 9th volume of the Reports, 646. The support of religious societies is a charity. It is giving for the love of God, or the love of a SUSQUEHANNA MUTUAL INS. Co. v. TUNKHANNOCK Toy Co. It is prima facie sufficient, for an assured to mail notice and proofs of loss, properly directed, to the home office of the insurance company. It is not in contemplation of the parties that such notice should be served upon the company by special messenger. The certificate of any mutual fire insurance company, duly assigned and attested, setting forth that an assessment has been made upon the premium note or notes of any member is prima facie evidence, and it is error to reject such cer'tificate. An assured, in a mutual insurance company, is bound by a by-law enacted before his connection with the company, which enacts that five directors shall constitute a quorum, and an assessment made by a meeting composed of five directors is prima facie valid and binding upon the assessed. THE CITY OF PHILADELPHIA v. LINNARD. When land is taken by a city for opening or widening a street, the true and well settled measure of damages is, the difference between the market value of the land as affected by the taking of partfor the street, and such value is unaffected; that is, what would the land have sold for at and immediately before the street was widened at its front? What would it have sold for as affected by widening? In applying the above rule, it was error for a referee to refuse to regard the conjectural appreciation in value by reason of a possible recession of either or both of the adjoining buildings at some indefinite time in the fu ture. When parties by written agreement submit a civil case to the decision of a referee, under Act of April 22d, 1874, and no provision is made for hearing exceptions or otherwise receiving or controlling the decision of the referee by the Common Pleas, the power of control and review is expressed to be in the Supreme Court. This is constitutional. COHEN'S APPEAL. Two judgments were entered on the same day. One only stated on its face that it was to secure |
