Orbin v. Stevens

Opinion by

Beaver, J.,

Referring to the findings of fact and opinion of the court below, which will doubtless be given in full in the report of this case, it may be remarked:

1. The plaintiff’s bill was dismissed not because of want of jurisdiction. It is distinctly recognized that equity may be invoked for the purpose of securing the result at which the plaintiff aimed in the filing of its bill in a proper case. In McGowin v. Remington, 12 Pa. 56, where the English cases are reviewed at some length, and where Fells v. Reid, 3 Ves. 70, in which plaintiffs prayed for the restoration of a silver snuff box used for many years by a society as the symbol of their association, which was deposited with the defendant as a member of the society upon certain terms, to be redelivered upon the happening of certain events, is especially commented upon, it was held that in equity “the inquiry must be whether the law affords adequate' redress by a compensation in damages where the complaint is of the detention of personal chattels. If not, the aid of a court of chancery will always be extended to remedy the injury by decreeing a return of the tiling itself.” This has been followed in many later cases and, as the principle was not doubted in tbe court below nor disputed by the defendant here, need not be further discussed.

2. The plaintiff association being unincorporated, the original parties, as set forth in the bill, when it was filed, were properly used to represent the association: Singing Society v. Turn-Verein, 168 Pa. 265. The names of the individuals representing the association were, on motion of the plaintiff, stricken from the bill as plaintiffs, but as this seems to have been done at the suggestion of the court below we would have no hesitation in permitting them to be restored to the record, if that were necessary to a proper disposition of the case.

3. It is conceded that the flag, which is the subject of the present controversy, having been presented to the regiment as an organization, which was under no obligation to deposit it when it was mustered out of service either with state or national authorities, belonged to all the members while in service and to the survivors, after their term of service ended, jointly. The defendant is one of the survivors of the regiment and his interest, from a legal standpoint, in the flag is no more than, but is just the same as, that of any other survivor. His right to its custody is no greater than, but just as great as, that of any one of the survivors. If he had originally secured the custody and control of the flag, under the circumstances alleged in the bill, as color-bearer of the association, subject to the trust, express or implied, that it should be delivered to his successor in office, it would undoubtedly be his duty to surrender it in accordance with the terms of the trust governing its custody, but the court below does not so find, and, after a careful reading of the testimony, we are convinced that it would not have been justified in so finding. The defendant seems to have had, perhaps because of the local associations which surrounded it, a peculiar veneration and affection for this flag. He kept it while in service at times in his own tent. He was not mustered out with his regiment, being at the time on peculiarly important detached duty, but upon his return a comrade in company with some twenty others came to his father’s house and delivered the flag into his special custody “ to keep and take care of.” This is not denied and it is not alleged that any one of his comrades who thus joined in placing it in his care and custody is here complaining. The findings of fact of the court below as to the organization of the regimental association seem to be fully warranted by the testimony. The rules, regulations or by-laws, if there ever were any, have been lost and no testimony as to what they were has been presented. The plaintiff assumes ownership of the flag because of the organization of the regimental association by about ninety of the survivors of the regiment in 1873, but it is quite clear that each one of the ninety or more who participated in the organization could not have transferred thereto more than his interest in or title to the flag, and even if this had been done, it would not have vested in the association more than the undivided one-fifth interest therein, there being about 470 survivors. The sixth finding of fact as to the lack of any transfer of title, by the survivors of the regiment or even of those who acknowledge themselves as belonging to the association to it, is fully warranted by the evidence. The legal conclusion arrived at seems, therefore, inevitable that “the plaintiff association having shown no title to the flag in question, its bill must be dismissed.”

We fully sympathize with the members of this association in their desire to see their battle scarred and tattered standard in safe custody. The defendant, however, has apparantly only the same desire. He seems to have good cause for his anxiety in regard to the safety of what remains of the flag. It is not denied that on the occasion when he first allowed it to pass out of his possession, as he supposed temporarily for a legitimate purpose, the flag was mutilated and practically destroyed. To use his own expressive language in one of his answers as a witness to a question of counsel, “ When they borrowed that flag from me, the field was all there and the stars were all there in it and there was a piece of a bullet imbedded in the stem and in the spear a bullet was imbedded and the stripes were all -there, so that you could make out that it was a flag; and when I got it back at Scottdale nobody could make out what it was; there wasn’t a star in it nor a single white stripe on it. . . . Half of the bullet was picked out of the spear and I wouldn’t bave had that done for all the flags in the country.” It is not ours to dictate or even suggest the final disposition to be made of this flag, but the efforts of the court below to secure a safe and permanent place for its custody are entirely commendable. Upon a careful consideration of the whole case, the decree of the court below dismissing the plaintiff’s bill is affirmed and the appeal dismissed at the costs of the appellant.