Forscht v. Green

• Decision Date: 17 October 1866
• Citation: 53 Pa. 138
• Parties: Forscht <I>versus</I> Green.
• Court: Pennsylvania Supreme Court

53 Pa. 138

Forscht versus Green.

Supreme Court of Pennsylvania.

October 17, 1866.

ERROR to the Court of Common Pleas of York county.

W. C. Chapman, for plaintiff in error, cited Act of March 24th 1817, Purd. 380, pl. 82; Act of July 2d 1839, Id., pl. 86; McAllister v. Hoffman, 16 S. & R. 147; Scott v. Duffy, 2 Harris 19; Spiese v. McCoy, 6 W. & S. 487; App v. Coryell, 3 Penna. R. 494; Waggonseller v. Snyder, 7 Watts 343; Conklin v. Conway, 6 Harris 330; Mytinger v. Springer, 3 W. & S. 405; Lloyd v. Leisenring, 7 Watts 294; Reichly v. Maclay, 2 W. & S. 59; Waters v. Hixenbaugh's Administrator, 1 Casey 131.

Cochran & Hays, for defendant in error, cited Shearer v. Nickens, 3 Penna. L. J. 388; Mills v. Western Bank, 10 Cush. 22; Act of March 21st 1806, § 13, Purd. 41, pl. 5; Downer v. Downer, 9 Watts 60; Strickler v. Sheaffer, 5 Barr 240; Thomas v. Simpson, 3 Id. 60; Taylor v. Birmingham, 5 Casey 306; Ashford v. Ewing, 1 Id. 214; Commonwealth v. Garrigues, 4 Id. 9; Craven v. Bleakney, 9 Watts 19; Criswell v. Clugh, 3 Id. 330; Spigelmoyer v. Walter, 3 W. & S. 540; McKinney v. Mon. Nav. Co., 2 Harris 65; Commonwealth v. Straub, 11 Casey 137; Commonwealth v. Cope, 9 Wright 161.

The opinion of the court was delivered, October 17th 1866, by THOMPSON, J.

The plaintiff brought this suit against the defendant, who was the stakeholder, to recover back a sum of money bet on the result of the Congressional election, in the York, Cumberland and Perry district, in 1862, by him with one J. R. Donnell. It seems the defendant was notified by the plaintiff, immediately after the result was known, not to pay over the money to the winning party; but he disregarded the notice as well as the Act of Assembly, and paid it over on being indemnified for so doing.

It was claimed in the court below, on part of the defence, that the plaintiff could not recover against the stakeholder, because his interest in the money was by the terms of the 118th section of the Act of the 2d July 1839, Purd. Dig. 380, forfeited to the directors of the poor of the county of York; and of this opinion was the learned judge in the court below: and although the argument in support of this view is plausible, and supported by the decision of an able judge in the District Court of Philadelphia (Judge Pettit) in Shearer v. Nickens, 3 Penna. Law J. 388, we cannot agree that it is sound.

The section of the act declaring the forfeiture of the money bet to the authorities in charge of the poor of the district where such bet on an election shall be made, is in its terms conditional: "provided," it says, "suit is brought within two years from the time of making such bet." In the preceding part of the section, it will be observed that the money or thing bet is given to the authorities in charge of the poor, by conferring on them a right of action to recover it, provided the right be exercised within the time fixed. Undoubtedly, the word "provided," generally creates a condition; and while it may, and often does express an exceptional or different meaning, we feel satisfied that that is not the case here. All right to claim the money after two years in favor of the poor authorities ceases, and how shall we say that that which they have no legal...