WEEKLY NOTES OF CASES. removal or misappropriation of the petroleum received by the same, and providing for the appointment of examiners of the business thereof, and for penalties for violation of the provisions of this Act. Section 1 of the Act provides that every cor VOL. XXIX.] FRIDAY, FEB. 19, 1892. [No. 13. poration, person, etc., who engages in the busi Supreme Court. Oct. 91, 244. October 21, 1891. Boyle v. Smithman. ness of transporting or storing crude or refined petroleum by means of pipe lines or storage by tanks, shall conduct such business in conformity with and subject to the provisions of this Act. Section 5 requires the posting of a statement on or before the tenth day of each month, duly signed, setting forth the amount of petroleum on hand at the close of the preceding month, where Pipe lines-Act of May 22, 1878-Monthly it was stored, the amounts received during the statement required by that Act-Whether required of one who owns the oil which is transported through his lines-Penal action -Privilege of defendant to refuse to produce his books. The Act of May 22, 1878, is highly penal; its object is to punish one who disobeys its provisions. A defendant in a suit brought under it could not be compelled to testify against himself, and for the same reason cannot be compelled to produce his books. In such a case, the plaintiff sought to compel the defendant to produce his books. The Court having sustained the defendant's objection to their production, the plaintiff's request afterwards to be allowed "to refer to and draw any legitimate conclusion that may be drawn from the fact, that defendant refuses to produce his books," was rightly refused. When the Court sustains an objection to testimony or to the form of a question or extends a privilege claimed by the objecting party, the evidence is then excluded or the privilege extended as the act of the Court; and all the jury can properly know about it is that an offer was made in their hearing, which was rejected, and which therefore is, for the purpose .of the trial, as though it had never been made. Appeal of P. C. Boyle, plaintiff, from the judgment of the Common Pleas of Butler County, in an action brought by himself to the use of himself and the County of Venango, against John B. Smithman, under the provisions of the Act of May 22, 1878, P. L. 104, entitled— month just past, and from whom, and to whom they were liable to deliver, and the outstanding receipts given therefor. Section 8 provides penalty for selling oil without the consent of the owner. Section 9 provides that any one Engaged in the business of transporting by pipe lines or storing petroleum, crude or refined who shall neglect or refuse to make the report required by the fifth section of this Act within the time and manner directed by said section, shall forfeit and pay the sum of one thousand dollars, and in addition thereto, the sum of five hundred dollars for each day after the tenth day of the month, that the report or statement required by section 5 shall remain unposted. Section 13 provides that one-fourth of the fines and penalties should go to the informer, and that they should be recovered in an action of debt in any Court where service could be had, to the use of the informer and the county. The action was originally brought in Venango County; and on petition of defendant a change of venue to Butler County was granted. On the trial, before McMICHAEL, J., it appeared that Boyle was the publisher of a newspaper which published statistics relating to the oil business, and called on the defendant for a statement of his business. The defendant, however, alleging that he was engaged in the business of transporting only his own oil, and contending that the Act did not apply to him, declined to give the statement. The demand was repeated several successive months and this suit was then brought for penalties aggregating $78,500. The plaintiff having subpoenaed the defendant to produce his books, proposed to compel their production and to offer them in evidence. 66 The defendant objected to the witness being called and interrogated, or in the presence of the An Act relating to corporations, companies, associa- Court, or compelled to produce his books to be tions and persons engaged in the storage or transpor- used in evidence against him, for the reason that tation by pipe lines of crude or refined petroleum, and this is a penal action and quasi criminal; that to providing for reports and statements, and for the pre-compel him to testify or furnish evidence against vention of the issue or circulation of fraudulent receipts, certificates, accepted orders or vouchers, by said himself is in violation of the 8th and 9th sections of companies, corporations and persons, to prevent the the 1st Article of the Constitution of Pennsylvania, and of the 4th and 5th Amendments to the Con- | any oil that was offered for that purpose, by any stitution of the United States. That to compel other citizen of the Commonwealth, and being him to produce his books to be used in evidence such citizen, being, so far as the evidence is conagainst him, is an unwarranted search or seizure cerned in this case, a private individual, the within the meaning of the Constitutional pro- owner of a pipe line, that he had a right to convisions cited, and a compelling of him to give trol as he saw fit; that the right to refuse to take evidence against himself. Further, that a party or receive or transport any oil, unless he himself can only be compelled to produce books and was willing to receive it—and if it be true, then, writings in the manner prescribed by the 1st that this oil that he did transport through this section of the Act of February 27, 1798." line was his own oil, not the property of another, Objection sustained. Exception. (Second as- when it was so transported, then this Act of signment of error.) Assembly was not intended to apply to him. Plaintiff's counsel then made the following statement: Plaintiff's counsel claims the right during this trial and in the argument of the case to the jury, to refer to and draw any legitimate conclusion that may be drawn from the fact that the defendant refuses to produce his books. THE COURT. The counsel will not be permitted during the argument of the case, nor during this trial, to refer to the fact that the defendant refuses to produce his books as evidence in any way in favor of the plaintiff or against the defendant. (Third assignment of error.) Plaintiff's counsel offered to show "how other pipe lines were operated, and that this one was operated in the same way." Offer overruled. Exception. (Fifth assignment of error.) Defendant offered in evidence certain certificates of the National Transit Company for the purpose of contradicting the plaintiff's allegations that defendant carried on business in the same manner as other pipe lines. The plaintiff objected because the Court had overruled his offer to show by a witness on the stand, to be followed by the testimony of a number of other witnesses, the similarity in the conducting of the business of the various pipe lines, the National Transit named specially as one of them. Objection overruled. (Seventh assignment of error.) Considerable testimony bearing on the question of the ownership of the oil in defendant's line was offered on both sides. The Court charged the jury, inter alia, as follows: "In this case it is conceded that Mr. Smithman, the defendant here, was in 1887 and 1888, during the time that is covered by the question in controversy, actually transporting, by pipe line, oil. It is alleged on his part that he was the owner of that pipe line, and that he was the owner of all the oil which he transported through or by means of it. “While the language of it, that it is intended to apply to companies, associations, and persons engaged in the storage or transportation by pipe lines of crude or refined petroleum,' would, technically speaking, include him, yet in the same application of the language, it would include the well-owner-a producer who had a well, and who through pipes got the oil from that well, or through pipes ran it from his well to a tank that he himself owned, and there stored it for himself. "If the application that is insisted on here by plaintiff would require, as it would, that he should post the statements provided for in the fifth section of this Act, then it would, on the same construction, require a producer who had a tank where he pretended to store—even for a time-oil from his gell, to make out the same sort of a statement as to the amount of oil that he stored in his tank, or that he run through any line of pipe to such tank. "This is a construction of this Act which I am satisfied was not within the intent of the Legislature. It was intended to apply to all those public corporations who have laid their lines by reason of franchises, and by means of franchises that they have obtained from the State as public corporations. It was intended to apply to all private individuals—such as this defendant is here who would undertake to transport the oil of others for those others, or to store that oil of others for such others, in any tanks or receptacles that he may have for any such purpose, but it was not intended to apply to an individual who operated for his own exclusive use, like a producer, the owner of an oil well, or like a refiner, who stored his oil in his tanks for his own immediate use at his works.” The plaintiff requested the Court to charge, inter alia, as follows: 2. If the jury find that the defendant owned "If that be true, gentlemen, there being no or controlled a pipe line, and used it for transevidence in this case that he was a common car-porting crude petroleum from wells of others to rier; that he was obliged by reason of any un-Oil City, and for such transportation received dertaking between him and the government, the compensation, this constitutes the business of State, or by reason of any franchises which he transporting oil by pipe lines within the meaning held from the State in any way, that he was and intendment of the Act of Assembly in such obliged to transport or convey through his pipe case made and provided. Answer. This point is affirmed, if the jury further find that the crude line, Boyle called upon him for a statement of petroleum he so transported, or some of it, was at his business made out under the Act of 1878. the time he so transported it the property of He declined to make a statement of his business, others than himself. If it was all his own prop-and denied that he was within the provisions of erty when he transported it, then he was not the Act. This demand was repeated in succesengaged in the business of transporting oil by sive months until the penalties for not posting pipe lines within the meaning and intendment of the statements in his office and the additional the Act of Assembly referred to. (Thirteenth daily penalties for the delay would aggregate assignment of error.) nearly eighty thousand dollars. This action was then brought. Verdict and judgment for defendant. Plaintiff thereupon appealed, assigning error, inter alia, as above. John M. Thompson (Charles McCandless, Isaac Ash and P. M. Speer with him), for appellant. It The defence was that the Act of 1878 was applicable to persons and corporations doing business as carriers, and to those providing storage for the public; and that its object was to protect the public by compelling a correct showing of Christopher Heydrick (W. D. Brandon, D. the business done and the stock in store. B. Kurtz and Carl I. Heydrick with him), for was also contended that the defendant was not a appellee. carrier and provided no storage for the public, but was a private purchaser, collecting and storJanuary 4, 1892. WILLIAMS J. The trans-ing his own oil, and selling it as opportunity portation and storage of petroleum are regulated by the Act of May 22, 1878. Among other provisions to be found in it is one that requires every corporation, association, person or persons engaged in the business of transporting crude or refined petroleum by means of pipe lines, or storing it in tanks, to make and post couspicuously in the principal business office of such corporation, association, person or persons, a monthly statement showing the quantity of crude and refined petroleum on hand at the beginning and The case turned therefore on the character of at the close of the previous month, and where the defendant's business. Whether he was in the same was stored or kept. The statement fact a purchaser of all the oil he transported, or must also show how much petroleum was received, was a common carrier serving the public, was a and how much was delivered to purchasers and question of fact for the jury to determine. They owners during the month. Also how much of have found this question in his favor, and under the whole amount was held for other corpora-instructions which are not open to any just comtions, associations, or persons, and how much of plaint. If the plaintiff was not injured by the the amount so held was represented by certificates, rulings of the Court now assigned for error, the accepted orders or other form of outstanding question must be treated as finally settled by the vouchers. For a failure to make out and post verdict. such statement of each month's operations on or before the tenth day of the following month the Act provides a penalty of one thousand dollars, with an additional five hundred dollars for each day after the tenth that the neglect shall con offered. Not holding oil for others he issued no tinue. . The first of these rulings was the refusal of the learned Judge to permit the plaintiff to amend his declaration at the trial so as to include therein a charge that the defendant provided storage for the public, as well as transportation. As the jury have found that his business was that of a private purchaser and that he was not serving the public, this refusal ceases to have any significance and it is unnecessary to enter upon a consideration of it. Smithman owned or was in possession of a pipe line leading from storage tanks in or near Oil City to a number of wells some miles away, and having connection with wells along the route. He was, as the jury have found, engaged The second assignment is to the refusal of the in the business of buying and selling oil on his Court to compel the defendant to produce his own account, using the pipe line to collect his books in Court so that they might be used as oil in the storage tanks from which his sales were evidence against him on the trial. The Act of made. Boyle was the publisher of a newspaper, 1878 is highly penal. This action is in form a and, as such, interested in the collection and pub-penal action. Its object is to punish the defendlication of statistics relating to the oil business. ant for disobeying the statute by imposing penAssuming that Smithman was engaged in trans-alties amounting to about eighty thousand dollars. porting and storing oil for producers along his The defendant could not be compelled to testify against himself as a witness, and for the same reason he cannot be compelled to aid in his own conviction by the production of his books and papers. He had an unquestionable right to insist upon his privilege, and the Court was bound to protect him in the enjoyment of it: Logan v. The Railroad Co. 132 Pa. 403. defendant was engaged in the business of transportation as a carrier for the public. It was competent, however, for the defendant, when he came to reply to the case made against him, to show that his business was that of a private purchaser, both in its character and its methods. In this connection, having shown his method of keeping accounts with those from whom he made purchases, it was competent for him to show the methods adopted by those who were known to be common carriers, that the jury might be the bet ter able to determine the real character of the business. The judgment is affirmed. Horner v. Horner. R. H. N. June 1, 1891. Promissory note-Time of payment - Contemporaneous parol agreement-Setting aside judg ment entered for want of an affidavit of defence-Discretion of the Court-Rules of Court. When no time for its payment is mentioned in a promissory note, the legal inference is that it is payable on demand; but this inference may be rebutted by time for the payment of it. proof of a contemporaneous parol agreement fixing the The answer to another of the assignments follows as a matter of course from what has been said. If the defendant was exercising a clear legal right in refusing to produce his books, it was the duty of the Court to deny to the counsel for the plaintiff the leave they asked to comment upon his refusal in their addresses to the jury. They asked to be allowed "to refer to and draw any legitimate conclusion that may be drawn from the fact that the defendant refuses to produce his books." The Court held that they had May '91, 3. no right to refer to the defendant's refusal “ as evidence in any way in favor of the plaintiff or against the defendant." This was the least the Court could say. The privilege of the defendant to decline to furnish evidence against himself would be of very little value if the fact that he claimed its protection could be made the basis of an argument to establish his guilt. To extend to a defendant the formal protection of his privilege, and then allow the fact that he had claimed it to be used as. affording a presumption against him, would be a sort of mockery of which the law is not guilty. It not infrequently happens in the trial of causes that a party offers evidence that is objected to as irrelevant, and that is excluded for that reason; but I am not aware that any Court has been afterwards asked to allow the counsel by whom the evidence was offered, "to refer to and draw any legitimate conclusion that may be drawn from the fact" that the evidence offered was objected to by the other side. A party has a right to object to the form of the question put by his adversary, or to its subject-matter. He has a right to insist on his privilege, whether his confidential adviser is called to the stand against him, or he is asked Under the rules of Court of Adams County which proto testify against himself in a criminal case or a vide: 1. That when a defendant appeals from the judg penal action. When the Court sustains his ob- ment of a justice of the peace, he shall, at the time of jection, or his claim of privilege, that is, as to filing the transcript, enter a rule on plaintiff to dethat point, a judgment in his favor. The evi- clare, and the plaintiff shall give notice of the filing of the narr. to the defendant, and to plead in thirty days. dence is then excluded, or the privilege ex-2. That the transcript may be treated as a narr., and tended, as the act of the Court; and all the jury within thirty days from the filing of it by the defendcan properly know about it is that an offer was ant he shall plead to it; and 3. That the pleadings made in their hearing which was rejected, and and procedure on appeals from the judgments of which therefore is, for the purposes of the trial, justices of the peace shall be the same as in like cases commenced in Court, and when defendant takes a rule as though it had not been made. for a more specific statement, he " is required to reply thereto by affidavit as in the other cases:" The remaining assignments do not require a separate consideration, and are not sustained. The certificates issued by the National Transit Company made no part of the plaintiff's case. What he had to do was not to show how other transporters conducted their business, but that the Such an agreement is not in contradiction of the terms of the written instrument; it only prevents the implication raised by the law in the absence of any agreement as to the time of payment. A written instrument obtained on the faith of a con temporaneous parol agreement cannot be enforced in violation of such agreement. If an affidavit of defence is not presented in time and judgment is entered, the Supreme Court cannot review the action of the Court below in refusing to take off the judgment so entered. The Court below, in the exercise of a sound discretion, may set aside the judgment, but it must be a palpable abuse of discretion which will warrant the interference of the Supreme Court in such a matter. Held, that judgment will be entered against defendant after the lapse of thirty days, when he has taken affidavit of defence thereto : a rule for a more specific statement, and has filed no Held, also, that the notice to plead by the plaintiff upon filing the narr. in response to a more specific statement, is not a waiver of the right to require an| affidavit of defence; such notice is compulsory under the rule requiring a statement to be filed. O'Neal v. Rupp, 22 Pa. 395, and Duncan v. Bell, 28 Id. 516, commented upon and distinguished. Appeal of Sarah P. Horner, defendant, from the judgment of the Common Pleas of Adams County, in an action of assumpsit brought by Ida G. Horner. This suit was instituted before a justice of the peace upon the following promissory note: Payments amounting to $35 had been made on this note, and interest paid to April, 1888. The justice entered judgment in favor of plaintiff for $263.40, whereupon defendant took an appeal which was entered in the Common Pleas upon January 25, 1890, with a rule on plaintiff to declare in thirty days from January 27, 1890. Upon February 11, 1890, plaintiff filed her statement and gave notice to defendant "to plead, etc., secundum regulam," and pleas were filed by defendant on March 13, 1890. (worth $65.00 to $75.00 yearly) and also pocket money for expenses in travelling and visiting (every year) not less than $15.00 per year-also watch, personal ornaments, etc., for all which she has received no payment. She left just at the beginning of a busy season and put defendant to great inconvenience and expense, she leaving suddenly and without any preintimation. "In taking said Ida G. Horner into her home she took with her (she being unwilling to be separated from her), her youngest sister Nellie, aged then about nine years, and furnished her with boarding, lodging, washing and ironing and clothing and jewelry and watch and personal ornaments, and furnished and paid for her schooling at a select school (except one or two sessions) up until she graduated at the public. school (being there one winter), after and owing to the closing of the select school-and all this without any payment, compensation, or return whatever, except the trifling one of a few errands and small service done." This affidavit of defence was disallowed because not filed in time, and the motion to set aside the judgment overruled. A second motion to set aside the judgment was made on May 20, 1890, accompanied with a further affidavit of defence, and was disallowed the same day by the Court, MCCLEAN, P. J. The rules of Court regulating appeals from justices of the peace in Adams County, and under which the above judgment was entered, are as follows: RULES OF COURT, OCT. 16, 1876. II. In cases of appeals from judgments of justices of the peace, in which the plaintiff is the appellant, he shall file his declaration within thirty days from the first day of the term to which the transcript is filed, and at the time of filing his declaration shall enter and serve a rule to plead in thirty days. In case of appeal by defendant, he shall, at the time of filing the transcript, enter and serve a rule to declare in thirty days from the first day of the term to which the transcript is filed, plaintiff's counsel to give notice to defendant's counsel of the filing of the narr., and to plead in thirty days. Where appeals are entered by the parties personally, it shall be the duty of the prothonotary, at the time of the filing of the transcript, to give notice of the requirements of this rule to the appellant and enter such notice of record. Plaintiff had judgment entered against defendant April 12, 1890, for want of an affidavit of defence. Defendant made a motion to take off this judgment on April 22, 1890, and upon May 8, 1890, filed the following affidavit of defence:"The note upon which the suit is brought does not express or contain any time for payment of the money promised, and for the reason that by the agreement of the parties, maker and payee, the same was (being agreed upon by them at the time of the signing of the note) omitted by mutual consent for obvious reasons. The time fixed for payment being the time when said Ida G. Horner should marry and not before. There was further a condition which was part of their agreement, but by like mutual consent was not written in the note, and that was that said Ida G. Horner should enter with said Sarah P. Horner to learn and complete the art and business of millinery and was to continue with said Sarah P. Horner, assisting her in her business, until her marriage. This agreement was in the year 1882 (see date of note), and said Ida G. Horner, in pursuance of said arrangement, entered with said Sarah P. Horner and continued with her most or all the time until in the first week of October, 1889, without just cause, or any cause relating to herself, she left and has remained away ever since. Since the date of said note said Sarah P. Horner has furnished said Ida G. Horner with boarding, lodging, washing, March 5, 1877. The above rule is ordered as alterironing, and abundantly with good clothing native to Rule No. II., established October 16, 1876. VI. All cases when put at issue to be entered on the trial docket. Oct. 16, 1876. RULE APPEALS. In cases of appeals from judgments of justices of the peace, the transcript may be treated as the narr. When the defendant is the appellant, he shall within thirty days from the time of filing the transscript, plead to it, and thereupon give notice of the plea to the plaintiff or his attorney. |