In the District Court of Allegheny County.

THE P. & C. R. R. Co. v. GARRARD.

(Vol. V., p. 109, 1857.)

Where coupon bonds, issued under the provisions of an Act of Assembly, by a municipal corporation for stock in a railroad company, to enable them to build their road, are in the possession of the president, and the fact that he is the president of the company is shown by the bonds themselves, his possession is primâ facie evidence that they belong to the company, and constructive notice of their title to one about to take them as collateral security for a private debt owed by the president. The fact, that time for the payment of such debt is given in consideration of the transfer of such bonds as collateral security, is immaterial, where the creditor has constructive notice of the company's title. The giving of time cannot divest or impair the title of the company.

MOTION for a new trial.

This was an action of trover for a coupon bond issued by the County of Allegheny, for $1000 stock in the Pittsburgh and Connellsville Railroad Company, of which William Larimer, Jr., was president.

The defendant, in October, 1854, deposited with Larimer the sum of $700. On the 10th of November, 1854, Larimer delivered the bond in controversy to defendant, as collateral security for the payment of the deposit. There was evidence that at about that time there was a run on Larimer, as well as on the other brokers of the city. Larimer failed on or about the 1st of January, 1855, and made an assignment. The railroad company shortly after demanded this bond of defendant, which he refused to deliver, and this action was brought. The Court charged the jury that the fact that Larimer was president of the company, as shown by the bond itself, was sufficient to put the defendant on inquiry as to his title, and constructive notice that the bond be longed to the company. The jury rendered a verdict for the market value of the bond, with interest; and thereupon defendant's counsel moved for a new trial.

The opinion of the Court was delivered by

WILLIAMS, A. J.-The reasons mainly urged on the argument in support of the motion for a new trial, were:

1st. The Court erred in charging the jury that the defendant had constructive notice that the bond belonged to the company.

2d. The Court erred in not leaving it to the jury to find whether the defendant did not permit the deposit to remain in the hands of Larimer in consideration of the delivery of the bond as collateral security for its payment.

I. Notice is either actual or constructive. Actual notice is a matter of fact for the determination of the jury. Constructive notice is a matter of law for the decision of the Court: Gonzales v. Hoover, 6 S. & R. 118. It is such notice, although it be not actual, as is sufficient in law. When there is evidence of actual notice, it is the province of the jury to determine the fact. But where the evidence does not tend to show actual notice, but merely establishes the existence of some fact known to the adverse party, or of which he was bound to take notice, it is the province of the Court to determine whether it amounts to constructive notice. The jury have no discretionary power to find

as matter of fact that which is matter of law: 6 Gill 121. Let us apply these principles to the case in hand. There was no evidence tending to show that the defendant had actual notice that the bond belonged to the plaintiff. If he did not have constructive notice of the fact, he took it without notice of any kind. The bond showed on its face that it was issued by the commissioners of the county for stock in the Pittsburgh and Connellsville Railroad Company, and that Larimer was president of the company, his likeness being on the face, and his signature as president being at the foot of the blank assignment on the back of the bond. Was this constructive notice that he held it not in his own right, but in his official capacity as president of the company, and that it belonged to them? The defendant's counsel contends that it was not, because the bond, being payable to bearer and passing by delivery, was prima facie the property of Larimer, in whose possession it was. And in support of this he relies on the case of Carr v. Le Fevre, 3 Casey 413, where the Court, speaking of such bonds, says that "possession is primâ facie evidence of ownership"-and so it must be if, as there

ruled, the bonds pass by delivery so as to enable the holder to
maintain an action on them in his own name.
But this expres-

sion must receive a reasonable construction. Regard must be had
to the nature and character of the possession. If that appears
to be in the holder's own right, it is primâ facie evidence of his
ownership. But if the holder's possession be primâ facie that of
a mere trustee, then it is prima facie evidence not of his, but of
another's ownership. Surely the Court did not intend to declare
that where bonds to the amount of half a million, or a million of
dollars, are issued by a municipal corporation, for stock in a rail-
road company to enable them to build their road, that the pos-
session of them by the chief officer of the company is primá
facie evidence of his ownership. Such a rule would strip the
company of all protection; for bonds so issued must, of necessity,
go into the hands of the president or some of its other officers.
In this case they necessarily went into the hands of the presi
dent, for his signature; and so long as they remained in his pos-
session, they were primâ facie the property of the company. If
he undertook to pledge them for his own debts, the presumption
being that he held them in his official capacity, his creditor, was
put upon inquiry as to his title and bound to ascertain his
authority.

But the argument of defendant's counsel, it seems to me, almost, if not altogether, yields the whole question. He complains that the Court charged the jury as matter of law, that the defendant had constructive notice of the company's ownership, but he concedes and insists that the Court should have submitted the question to the jury for their determination, under all the evidence, whether the defendant had notice or not. This certainly implies that there was evidence of notice of some kind, else why submit the question to the jury? It is not claimed, nor can it be, that there was any evidence tending to show actual notice; the evidence then could only tend to show constructive notice, a question which, as we have seen, it is the province of the Court and not of the jury to determine.

There may possibly be a difference of opinion as to the suf ficiency of the evidence, to make out a case of constructive notice; but there can be no doubt that it was for the Court and

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not for the jury to determine that question. As there was no evidence of actual notice, if a case of constructive notice was not made out, the Court ought to have instructed the jury that there was no evidence of notice of any kind, and not to have submitted the question to the jury. I thought at the trial that there was enough to put the defendant upon inquiry, and so charged. If I have erred in this, the defendant has his remedy. I still think that Larimer must be regarded as holding the bond in his official capacity, and that his possession was prima facie evidence of the company's ownership.

II. There was no direct evidence as to what took place between the parties, at the time of the delivery of the bond, nor what was the inducement or consideration therefor. There was evidence that there was a run" on Larimer, as well as on other brokers of the city, about the time the bond was delivered to the defendant. Perhaps the jury would have been justified in finding that the deposit was allowed to remain, in consequence of the transfer of the bond as collateral security for its payment. But of what avail would it have been to the defendant if they had so found, or if it had been clearly shown that this was the consideration for the delivery of the bond? It would have been wholly immaterial, if the defendant had constructive notice that the bond belonged to the company and not to Larimer. The fact that he allowed the deposit to remain in consideration of the transfer of the bond could not, if he had notice, divest the plaintiffs of their property, or give the defendants a title as against them. The whole case, it seems to me, turns on the question of constructive notice. The jury have found that the bond belonged to the company. If the defendant had constructive notice of their title, he has no equity as against them. If he had made the proper inquiry, he might readily have ascertained that Larimer had no authority to pledge it for his own debt.

The motion for a new trial is overruled.

Affirmed, 5 Casey 155.

In the District Court of Allegheny County.

BAKER ET AL. v. LEWIS.

(Vol. V., p. 124, 1857.)

1. Where a coal merchant had moored his boats, so that they extended from his landing out into a navigable river 150 feet, it was held, that he was only in the exercise of a clear legal right, and was not answerable for accidents as for a nuisance.

2. The Court ought to grant a new trial even after two concurring verdicts, if they are against the law.

MOTION for a new trial.

The facts in this case are fully stated in the opinion which was delivered by

WILLIAMS, A. J.-The plaintiffs, on the 13th of November, 1853, started from Pittsburgh with a pair of loaded coal boats, intending to run them to Cincinnati; but in passing defendant's boats, which were moored at his landing, on the south side of the Ohio river, a short distance below the city, their larboard boat struck one of the defendant's, and was so injured that it sunk, and, with its cargo of coal, became a total loss. This action was brought to recover damages for the injury.

On the trial two questions arose:

1st. Was the loss occasioned by plaintiff's negligence in running their boats against the defendant's?

2d. Did the defendant's boats so obstruct the navigation of the river, so as to render him liable for the injury to plaintiff's boats?

I. The plaintiffs, as shown by their own evidence, were opposite the Marine Railway, some three hundred yards above defendant's landing, when they first saw his boats. Their crew (consisting of the usual number), immediately commenced pulling out from the shore, and, as one of them testifies, did all they could to avoid defendant's boats, and prevent the collision. The plaintiffs' boats were forty or fifty yards from the shore when they first discovered defendant's boats, which extended into the river about one hundred and fifty feet from the shore. The river was