destroy the itinerant plan." This provision is not to receive a technical interpretation, but is to be construed in the light which the whole instrument throws upon it, and so as to advance the interests of the church and promote its objects. Navigation Co. V. Coons, 6 Watts & S. 114; Com. v. Clark, 7 Watts & S. 127; Com. v. Hartman, 17 Pa. St. 119; Com. v. Maxwell, 27 Pa. St. 444. The purpose and effect of section 4, when so construed, is not to prohibit changes in the confession of faith that are in the interest of clearness of expression, or fullness of statement, of the accepted doctrines of the church, but to prevent changes in the doctrines to which the church was committed. The provision was not intended as an impassible barrier thrown in the way of improvement of all sorts, but as a protection against the introduction of heretical doctrine, destructive of the distinctive theological character of the church. It follows that the changes made in 1889 were not within the prohibition of this section, since they are shown to be changes in statement in the interest of clearness and completeness of declaration of belief in the doctrines actually held by the church, and which are found less fully stated in the confession prepared in 1845. The contention of the appellants upon this subject fails, therefore, for this rea

son.

The confession of faith was not "absolutely unchangeable" in its manner of expressing the doctrines held by the church. It was unchangeable so far as relates to the distinctive doctrines or principles actually embodied in it.

We come, finally, to inquire whether the proceedings of the conference and the commission, and the expression of assent and dissent by the society, are substantially in harmony with the provision of the constitution of 1841, that authorized changes on the request of two-thirds of the whole society. The exact words of the provision are: "There shall be no alteration of the foregoing constitution unless by the request of two-thirds of the whole society." Alterations are not forbidden, but, as the constitution is the fundamental law of the whole society, it is proper that it should be changed only by the action or assent of the body affected by it. But there are two requirements to a lawful alteration: The action of the society, and the action of its highest church judicatory. The action of the first must be formulated and declared by the last. Which body, the popular one, described as the "society," or the ecclesiastical body, called the "General Conference," shall originate the alteration, is not prescribed. The proposition may therefore come from either. The bishops and clergy, who make up so largely the membership of the conference, are, by reason of their constant attention to religious and theological subjects and the working of the machinery of the church, peculiarly qualified

to lead the thought of the church on all such subjects. It is not desirable, nor is it necessary, under the provision we are considering, that they should sit with folded hands, waiting to be addressed by the society on any subject of denominational or religious importance. They may, and it is clearly their duty to, direct attention to any given subject. They may urge its consideration and counsel speedy action, but they cannot make the change that is needed. The society must move. The word employed is "request;" but how or when, in the course of procedure, the request must be made, is not stated. It may therefore be in any manner that expresses the desire of the society, and at any time before the final act of the conference. The only thing that can be positively affirmed as to its character is that it must express the wish of the society. In the present case, action by the conference preceded and followed the expressed wish of the membership. That which preceded suggested the desirability of certain changes, and reduced them to form for the examination and action of the society. That which followed rested on the expressed wish of the society in regard to the proposed changes, and carried it into effect. The whole society was taken into council by the conference. Its wish was asked and its answer received. The enrolled membership at that time was something over 200,000. Of this number, 51,070 signified their desire for the proposed change by an affirmative vote. Those voting against the acceptance of the revision were only 3,310. Those who preferred another mode of proceeding than that which had been taken, and petitioned the general conference accordingly, were 16,187. The total number of those who expressed themselves upon the subject was 70,567. This was more than one-third of the enrolled membership. How many of those who made no response to the request of the conference for an expression of opinion were old and feeble, how many were young and immature, how many were wholly indifferent to the subject, we have no means for estimating. It is said that some refrained from voting because of objection to the proposed revision, or the mode of proceeding to ascertain the wish of the society. If so, it was an ineffectual kind of opposition. all elections the nonvoting must be counted as willing to be bound by the action of the majority of those who vote. Any other rule would lead to interminable trouble and uncertainty. Craig v. Presbyterian Church, 88 Pa. St. 42. In elections under the laws of the states or the United States, this has never been doubted. In parliamentary bodies the same thing is true, unless the rules of such body require that a quorum of the membership shall participate. In that case it is a majority of the required quorum, not of the whole body, that is nec

In

essary to the validity of any proposed action. A majority consists of more than one-half of those who vote at a given election, not of those who might have voted, but did not vote, for we have no machinery for ascertaining the number of the latter class, and we should find it still more difficult to determine on what side they should be counted. It is true that the voting, in its case, was not done under the authority of any general law of the church, and that it is not to be treated, in all respects, as an election. It was, in its object and results, a mere expression of the individual preference, wish, or request of the voter. If any of the members of the society felt that they had no wish or request to express on the subject, it was proper for such persons to say so, by refraining from any expression in answer to the request of the general conference. But, if a positive preference was felt, it was the privilege, if not the duty, of the member entertaining such preference, to express it, for the information and guidance of the highest ecclesiastical tribunal in the society. To one looking at this subject from the standpoint of a disinterested spectator, it would really seem as though courtesy towards the growing body of the denomination, love for the church, and zeal for its prosperity and peace, alike required those who opposed revision to say so, squarely, on all suitable occasions, with voice and vote. The inference is a natural one that those who did not oppose were either favorable or indifferent to the proposed change.

Our conclusions on the whole case are as follows: This society had a constitution and a confession of faith prior to 1889 which established both the polity and the creed of the church beyond question, "so far as they were clear". and complete in expression. The general conference suggested revision of both documents, not for the introduction of new or heretical doctrine, but in the interest of clearness and fullness of declaration of the actual belief of the society, and for the removal of ambiguity and uncertainty from the written documents. The "whole society" was asked, in a regular and proper manner, to express its preference or wish upon the adoption or rejection of the revision proposed. An ample time for consideration and decision was afforded them, and a suitable system provided for gathering up the result of the wishes and preferences to be expressed. very large majority of those who expressed any wish on the subject favored the revision proposed. In conformity with their request or wish of the society, the general conference of 1889, by proclamation made by the bishops of the church, under its direction, declared the fact that, by the concurrent action of the society and the general conference, the revised constitution and confession of faith had been adopted, and were

A

to be accepted as the constitution and creed of the society. This general conference, and the churches adhering to it, are the Church and Society of the United Brethren in Christ, as fully, to all intents and purposes, as they were prior to 1889. Those who withdrew from the conference of 1889, and organized another conference, together with those who adhere to them, while they may be, in theological belief and religious observances, identical with the body from which they withdrew, are ecclesiastically distinct, as a result of their own acts, and they have no title to the property held by the society prior to 1889. The plaintiffs are therefore entitled to the relief prayed for, and provided by the decree appealed from, and the decree is now affirmed; the appellants to pay the costs of this appeal.

In re WALN'S ESTATE.
Appeal of VAUX et al.

(Supreme Court of Pennsylvania. July 19, 1893.)

WILLS-CONSTRUCTION-REVOCATION OF BEQUEST -RIGHTS OF RESIDUARY LEGATEES.

Where a testator, by codicil, revokes a bequest to one of the residuary legatees of his will, because of his death, but makes no disposition of the share of such legatee, it passes to his next of kin, and not to the remaining residuary legatees.

Appeal from orphans' court, Philadelphia county; William B. Hanna, Judge.

In the matter of the estate of Henry Lisle Waln, deceased. Richard W. Clay, assignee of Edward Waln, and Ellen W. Harrison, assignee of Jacob S. Waln, and others, except to an adjudication of the orphans' court distributing one-fourth of one-fifth part of the residue of the estate to the residuary legatees. Exceptions sustained. Mary W. Vaux, Sally M. Waln, and Annie Waln, the residuary legatees, appeal. Affirmed.

Henry Lisle Waln died April 8, 1891, having made his will, dated April 7, 1882, which, after certain legacies, provided: "The rest, residue, and remainder of my estate, real and personal, I devise and bequeath to my sisters, Mary, Sallie, Ellen, and Annie, and my brother, Edward, in equal shares." He had then no other brothers or sisters living. Ellen died May 26, 1887, unmarried and without issue. Edward died in October, 1887, leaving several children surviving him. The testator, January, 1890, made a codicil providing, only, "I revoke my bequest to my brother Edward, as he is not living." The fund in question is that part of the testator's residuary estate which would have passed under the residuary clause to Edward, had he lived. The auditing judge awarded it to his surviving sisters. Edward's children claimed that one-fourth of it should have been awarded to them. They excepted to the adjudication, and thereon the

and decreed that one-fourth to them. From that decree this appeal is taken by Edward's surviving sisters.

Crawford & Loughlin, for appellants. Richard C. Dale and Rowland Evans, for appellees.

MITCHELL, J. It is conceded that, the share of the residuary bequest left to testator's sister Ellen having lapsed by her death during his lifetime, he died intestate as to that, and it goes to his next of kin, and not to the other residuary legatees. The only question, therefore, is whether the share of Edward follows the same course. Is there any substantial difference, in regard to its effect, between a lapsed or a void residuary bequest, and one expressly revoked? The English cases apply the same rule to both. Thus, in Creswell v. Cheslyn, 2 Eden, 123, the testator appointed his daughter Mary one of the residuary legatees, but afterwards, by a codicil, revoked that appointment. The other residuary legatees claimed that their shares were thereby increased; and the argument was expressly made that a codicil is a republication of the will, which should be construed as if then rewritten, with the revoked legacy omitted. Logically, it is difficult to escape this conclusion, but Lord Chancellor Northington held that it could not prevail, saying: "The testator has made no new devise, by the codicil, of the share which he has revoked from his daughter Mary, and therefore the sons can have no greater interest than they had by the original will." This decision met with criticism, but does not seem ever to have been modified. On the contrary, in Skrymsher v. Northcote, 1 Swanst. 566, where there was also an express revocation, by codicil, of part of the residuary bequest, Sir Thomas Plumer, M. R., held that the revoked share went to the next of kin; and in his opinion, after stating the rule, using the general word "fails" in connection with the disposition, he gives an illustration of a lapse, without taking any notice of a distinction between a lapse and an express revocation, which was the case before him. The rule, as he expresses it, is that "part of the residue of which the disposition fails will not accrue in augmentation of the remaining parts, as a residue of a residue, but, instead of resuming the nature of residue, devolves as undisposed of." And this whether the failure arises because the gift is void or lapsed or revoked. The English rule, as we said in Gray's Estate, 147 Pa. St. 67, 23 Atl. Rep. 205, does not commend itself to sound reasoning or to the preservation of the testator's actual intent; but we found it recognized and accepted in our own cases before these particulars in its application arose, and we felt ourselves bound by it. The distinction between "lapse" and "revocation," though logically clear, is thin, and

lapse is expressly assigned by the testator as the reason for the revocation. It has little practical bearing on what should be the only object of testamentary construction, -the actual intent of the testator. As we said in Gray's Estate, supra, we think it better not to draw subtile distinctions, but to let the rule stand entire, as it was left by our predecessors. Decree affirmed.

BOYD et al. v. SHIFFER et al. (Supreme Court of Pennsylvania. July 19, 1893.)

SALE-RESCISSION-FALSE STATEMENT- - RATIFICA

TION.

1. Plaintiffs, on receipt of defendants' order for goods on credit, asked them for a statement and references to others with whom they had dealt. Defendants grossly misstated their assets and liabilities, and gave some references. Plaintiffs consulted one of these, who gave them, without comment, a statement made him lately by defendants, similar, in substance, to that given to plaintiffs. The active partner of plaintiffs' firm swore positively that they sought corroboration of the statement from said dealer, but sold their goods solely on the credit of the statement made to them. Held, as to plaintiffs' right to rescind the sale, that the question whether they relied on the statement, or on their own judgment after inquiry, was for the jury.

2. Defendants having committed an act of bankruptcy 13 days after the sale, plaintiffs' agent, with his attorney, called on them, accused them of falsehood in their statement, and demanded payment or security, which were refused. Held, that the agent's acts did not ratify the sale, and an instruction "that if plaintiffs asked for payment and an assignment of book accounts after they were aware of the fraud, they could not recover the goods," was much too favorable to defendants.

Appeal from court of common pleas, Lack awanna county; Fred W. Gunster, Judge.

Sheriff's interpleader rule on Boyd, White & Co., plaintiffs, and J. B. Shiffer and others, defendants, to appear and show cause why they shall not maintain or relinquish their respective claims. Verdict and judgment for plaintiffs. Defendants appeal. Affirmed.

George M. Watson and Walter Briggs, for appellants. W. G. Ward and Geo. S. Horn, for appellees.

DEAN, J. H. D. Judd & Co. carried on a furniture and carpet store in Scranton. The plaintiffs, Boyd, White & Co., are wholesale carpet dealers in Philadelphia. Simpson was a salesman for their house. In June, 1891, he called upon Judd & Co. in Scranton, and took an order from them for a bill of carpets, amounting to $1,005.41, which he transmitted to his firm. On receipt of it, they wrote to Judd & Co., asking for a statement of their financial condition. They got from them in reply this letter: "Scranton, Pa., July 1, 1891. Boyd, White & Co.-Gentle men: In answer to yours, we send the following: Stock on hand, $22,000; good ac

counts, $6,000. We owe accounts, $8,000. We have no real estate. No judgments against us. Buy goods of E. R. Artman, Trickler & Co., and W. & J. Sloane. H. D. Judd & Co." The plaintiffs then, in five different shipments, ending 8th of August, filled the order, and charged the price, $1,005.41, on their books. No part of it was paid. On 21st of August, 13 days after the last delivery, Judd & Co. confessed judgments, the greater part to near relatives, for over $17,000, on which executions immediately issued, and the sheriff levied on the entire stock of furniture and carpets in Judd & Co.'s store. Two days after the levy, plaintiffs, learning of the situation, sent their agent, B. F. Murphy, to Scranton, to have the contract rescinded, and reclaim the goods, because of alleged false and fraudulent representations of Judd & Co. in procuring it. Murphy identified the goods still in the store, which had been delivered under the contract, scheduled them, notified both Judd & Co. and the sheriff of their election to rescind, and demanded a redelivery. The sheriff thereupon petitioned the court for an issue under the interpleader act, to determine the ownership. This issue between these plaintiffs and defendants, the execution creditors, was framed. On the trial plaintiff showed that Judd & Co., on the 1st of July, when they stated their indebtedness at $8,000, were in fact indebted $44,000, and that their assets were largely overstated. They also offered testimony tending to show that they relied on the statements of Judd & Co. as to their financial condition, and that on the faith of them the goods were shipped. There was evidence that Murphy, when he first went to Scranton, and discovered the amount of indebtedness, sought to get some sort of payment or security for plaintiffs' account. His first step was, not at once to identify and reclaim the goods, but to make a demand on Judd & Co. for payment or security. There was ample evidence of the falsity of the representation. The evidence as to whether plaintiffs relied on the representation when they delivered the goods was not undisputed; that tending to show any act of Murphy in distinct affirmance of the contract after full knowledge of the fraud was very meager. But, however this may be, all the evidence was fully and very fairly submitted to the jury by the learned court below, with instructions on the law pertinent to the issue. The jury found for the plaintiffs, and from the judgment entered on that verdict this appeal is taken.

The assignments of error are all to answers by the court to defendants' points. Of these there were ten. Eight of them were affirmed and two denied, yet four of the five assignments of error are to the affirmative answers of the court to appellants' own special requests to charge. While the learned judge very properly followed his peremp

The third assignment of error is to the refusal of the court to affirm defendants' eighth point, that under all the evidence the verdict should be in their favor. It is argued that plaintiffs failed to show they had delivered the goods on the faith of the false representations, but that, on the contrary, their own evidence showed they relied on their own judgment, based on inquiry from others. It is the law that, no matter what may have been the falsity of the representations made by the vendee, if the vendor relied not on them,-did not part with his goods on the faith of them,-he cannot avoid the sale. The plaintiffs did make inquiry of W. & J. Sloane as to the financial standing of Judd & Co., and they replied by giving them the statement of Judd & Co., made some time before to them. The Sloanes did not give their opinion, but only Judd & Co.'s representations to them, which were, in substance, the same made to Boyd, White & Co. It will be noted that Judd & Co., in their letter of July 1st., in effect, had referred plaintiffs to the Sloanes, with whom they had already placed a similar written statement. The point is well made that if plaintiffs relied on the opinion of the Sloanes, and not on Judd & Co.'s representation of 1st July, there could be no rescission because of the falsity of that representation; but when the Sloanes expressed no opinion, and simply repeated Judd & Co.'s statement, the inference that plaintiffs did not rely wholly on the false representation to them personally by Judd & Co. is not warranted. Mr. Hill, of Boyd, White & Co., the active partner in the contract, testifies positively that, while they sought corroboration of Judd & Co.'s statement from the Sloanes, they parted with their goods solely on the credit of that statement. The question was clearly one of fact for the jury, who were instructed, both in the general charge and in answer to plaintiffs' fourth and fifth points, that unless plaintiffs made the contract relying upon the truth of Judd & Co.'s statement to them, they could not rescind, no matter what the degree of its falsity. There would have been manifest error in not submitting this question for the determination of the jury.

Appellants further allege there was undisputed evidence of an affirmance of the contract by plaintiffs after the discovery of the fraud. It is settled that a defrauded vendor must promptly declare his election to

rescind on discovery of the fraud. He cannot accept payment or advantage under the contract, and then, when disappointed, elect to rescind. It appears here, from the evidence, that on the 25th of August, immediately after the seizure, Murphy, agent of plaintiffs, went to Scranton, and with his attorney called upon H. B. Judd, one of the partners. They accused the firm of falsehood in the statement or July 1st, and, according to appellants' view of the testimony, demanded payment, judgment note, assignment of accounts, or security of some kind, which the debtors, under the advice of counsel, declined to give. The same day plaintiffs gave notice of their election to rescind.

Assuming this to be the correct view of the rather contradictory testimony as to what took place, it was not such an affirmance or ratification of the contract as would bar the plaintiffs of their right to rescind. Plaintiffs could accept payment or security for their goods, if the fraudulent debtor chose to make the one or give the other. The fraud on them consisted in the representation at the time of the purchase that he was amply able to pay. and refusal only demonstrated the absolute falsity of his previous representation. He gave them nothing in response to the demand, and they got nothing by it. If any note or property had passed, or there had been an assignment of any book accounts as payment or security, this would have been such an affirmance of the contract as would have been wholly inconsistent with the right of rescission, and plaintiffs' case would fall. But there was nothing of this kind; only a demand for payment or security, a refusal, followed immediately by reclamation of the goods. The court, at the request of appellants, in their ninth point instructed the jury "that, if plaintiffs asked for payment and an assignment of book accounts after they were aware of the fraud, they could not recover the goods." The jury, from their verdict under this instruction, must have found the demand was before they were aware of the fraud; but the instruction given was much more favorable to appellants than the law or the evidence warranted. There was no sufficient evidence of an affirmance of the contract to warrant a submission.

We find nothing of merit in any of the assignments of error. The verdict of the jury determines that Judd & Co., by the grossest falsehood, induced plaintiffs to part with the possession of their goods, without paying on them a single doilar, and this only 13 days before, by an act of bankruptcy, they put them in the grasp of preferred creditors. The whole issue was one of fact, and the verdict settles the fraudulent character of the transaction with reference to these plaintiffs; and, while we do not hesitate to affirm the judgment, it is

2. Plaintiff, at the request of defendant's solicitor, discharged of record a mortgage held by it on land of W., to whom defendant was about to make a loan to be secured by a mortgage on the same land, relying on the solicitor's representations that settlement would be had after the discharge. Held, that the acceptance by plaintiff of the solicitor's personal check was not a substitution of the solicitor's personal liability for that of defendant, and that plaintiff was entitled to a cancellation of the discharge, and to a reinstatement of its mortgage as a lien superior to that of defendant's mortgage; it appearing that the solicitor's cheek was worthless.

3. Nor will the fact that plaintiff held the check of the solicitor for three days relieve defendant of liability.

4. A bill in equity will lie to cancel the discharge of record of a mortgage, and for the reinstatement of it as a lien superior to that of defendant's mortgage, executed after the discharge, where such discharge was effected through the fraudulent representations of defendant's agent.

Appeal from court of common pleas, Philadelphia county.

Bill by the Independent Building & Loan Association of Philadelphia against the Real-Estate Title Insurance & Trust Company and Hugh Wilson and wife. From a decree for plaintiff, defendant trust company appeals. Affirmed.

The bill in this case was filed by the complainant, the Independent Building & Loan Association of the city of Philadelphia, praying that the entry of satisfaction of a certain mortgage held by the complainant be stricken off the record, on the ground that the entry of said satisfaction had been procured by the fraud of one Henry C. Thompson, the solicitor and agent of the