38 Pa.

Volume 38 — Pennsylvania State Reports

115 opinions

38 Pa. 9Stephens's Executors' Appeal (1861)
Lien of Vendor for Purchase-Money. — Award under Amicable Arbitration Act. — Sai. fa. on immature Judgment. — Notice of Lien, actual and constructive. — Levy and Extent of Land under an expired Lien. 1. A vendor of land has a lien for the purchase-money hy virtue of his title, only up to the time of conveyance: afterwards, he has no lien except it be created by judgment or mortgage. 2. Under the Amicable Arbitration Law of 1836, an award has no greater effect than the verdict of a jury, until judgment absolute be entered upon it. 3. Unless judgment absolute be entered on the lien docket, it cannot be continued by scire facias as against subsequent judgment-creditors without actual notice. 4. Though the lien docket is the usual notice of existing liens of judgments and awards, and the only docket to be examined, yet actual notice of a lien, independently of it, may be effective. 5. After the lien of a judgment is gone, a seizure, and extent of land on an execution upon it, will not continue the lien, though made while it existed between the parties to it.
38 Pa. 16Eldred v. Hazlett's Administrator (1861)
Error to tbe District Court of Allegheny county. This was an issue tried in the court below, where a judgment, in which M. Eldred, Jr., for the use of Patricks & Friend and now for the use of Mrs. Ann Patrick, was plaintiff, and James Murray, administrator de bonis non of Dr. Robert Hazlett, was defendant, had been opened and the defendant let into a defence. The case was this. On the 24th of June 1852, the defendant’s intestate gave his judgment-bond to M. Eldred, Jr., the legal plaintiff, in the penal sum of $16,000, -conditioned for the payment of $8000 with interest from date, in eighteen months, upon which judgment was confessed as of July Term 1852, No. 513, in the District Court of Allegheny, June 26th 1852, by virtue of the warrant of attorney thereto attached. In this bond the obligor waived the condemnation of his real estate and the benefit of all exemption laws, &c. In February 1854, this bond and judgment was assigned to Patricks & Friend, by whom it was on the 28th of December 1854 assigned to Mrs. Ann Patrick, whose executors were the beneficial plaintiffs. Dr. Hazlett died in September 1854, about three months prior to the assignment to Mrs. Patrick, and a scire facias was issued against his administrator to revive the judgment to January Term 1855, No. 459. On the 21st of February 1856, a rule was entered by the administrator to show cause why the judgment should not be opened and defendant let into a defence, which rule was made absolute April 28th 1856. Same day the following pleas were filed by defendant:— 1. Non est factum. 2. Release of said bond, except the sum of $1500. * 8. Set-off of certain notes and due-bills given by M. Eldred, Jr., to defendant’s intestate, viz.: — A promissory note for $6500, dated June 24th 1852, payable eighteen months after date; one due-bill, dated October 19th 1851, for $250; one other due-bill, from same to same, dated February 5th 1853, for $183.41, and also one other due-bill, from same to same, dated 15th February 1853, for $150. 4. Failure of consideration as to the said plea of $1500 in second plea mentioned. 5. That the plaintiff, by his writing of the 4th March 1854, agreed to surrender to the defendant the said bond in controversy. 6. Payment. 7. That said bond was fraudulently obtained by the plaintiff, without consideration. And 8. That the beneficial plaintiff never gave any consideration for said bond, and that the same was not assigned to her bond fide. The plaintiff traversed defendant’s 2d, 3d, 4th, 5th, 6th, and 7th pleas — and replied to the 8th plea that the beneficial plaintiff is a purchaser for a valuable consideration, without notice of any of the defences set up in the 2d, 3d, 4th, 5th, 6th, and 7th pleas of defendant; and further, that the defendant is estopped from setting up the matters and things in said pleas contained, by his intestate’s written and verbal acknowledgment made before the assignment of the said bond and judgment to Patricks & Friend, under whom the beneficial plaintiff claims; and also by verbal and written acknowledgments to the beneficial plaintiff before the assignment of the same to her. That said bond was made and delivered to the said plaintiff for the purpose of negotiation and transfer, for the accommodation of the plaintiff, and was negotiated by the plaintiff in pursuance of the assignment and understanding. The defendant rejoined that he is not estopped by any written or verbal acknowledgment of his intestate from setting up the said matters and things in his said pleas pleaded, and that the said bond was not made and delivered for negotiation and transfer for the said plaintiff’s accommodation, as in replication alleged. On the issues thus made up the parties went to trial. October 21st 1856, the case was tried by jury, and a verdict and judgment entered for plaintiff for $2272.33. A writ of error was then filed, and on March 31st 1859, record was returned, with certificate of judgment reversed, and venire de novo awarded,. April 11th 1860, the death of Mrs. Ann Patrick was suggested, and W. Wallace Patrick, Robert Patrick, and Andrew Patrick, executors of Mrs. Ann Patrick, deceased, substituted as beneficial plaintiffs. April 13th 1858, scire fiadas de novo qu. ex. non, and to continue the lien of the judgment issued, which was served personally on all the defendants. August 29th 1859, judgment see. reg. in default of an appearance, for $16,000, to be released on the payment of debt, interest, and costs in the original action. April 11th 1860, rule to show cause why this judgment should not be set aside or opened; reasons and affidavit filed. April 13th 1860, judgment ordered to be opened, and the defendants let into a defence; and it is ordered that the reasons and affidavit filed by the defendant be filed nunc fro tunc, as of the 11th instant. In April 1860 the cause was again tried. On the trial the plaintiff gave in evidence the bond with the assignment above mentioned, and then offered the record of a suit by M. Eldred for use to James Murray, administrator de bonis non of Robert Hazlett, deceased, to April Term 1859, .No. 599, being the scire facias to show cause why plaintiff should not have execution for the debt and continuance of the lien above mentioned, in which the writ had been served by copy on the administrator, and on the widow and guardian of the minor children of Dr. Hazlett, and judgment entered for default of appearance for $16,000, to be released on payment of debt, interest, and costs in the original action and the costs on the seire facias. To which offer defendant’s counsel objected, but the court overruled the objection, and admitted the evidence under exception. The plaintiff then rested. The defendant, to maintain the issue on his part, offered in evidence the following receipt of M. Eldred, Jr., to Robert Hazlett, dated June 24th 1852:— “ Received of Robert Hazlett, this day, a judgment for $8000, to secure the payment of a certain note given to me by said Hazlett for $1500 payable eighteen months after date, which amount was for a payment made by me to the Fayette Manufacturing Company for said Hazlett. Also, to secure any further sum I may in any way become liable to pay for said Hazlett, during the time above named, or until all accounts due me are paid, so as to satisfy that judgment in full. M. Eldred, Jr.” Also an agreement dated March 4th 1854, between Eldred and Hazlett:— “ Pittsburgh, March 4th 1854. “ Whereas, Robert Hazlett has bound himself in writing to pay to M. Eldred, Jr., in a judgment, fifteen hundred dollars — said amount of fifteen hundred dollars was paid by M. Eldred, Jr., to the Fayette Manufacturing Company for said Robert Hazlett, on or about the 24th day of June 1852. Said sum was due to the Fayette Manufacturing Company, on one hundred and fifty shares of the capital stock of said company, from said R. Hazlett, and was paid by M. Eldred, Jr.; and said company, through their treasurer, did endorse the same on the certificates of stock holden by R. Hazlett, and did cancel all claim against said R. Hazlett, on account of said ten dollars per share on one hundred and fifty shares of the stock of said Fayette Manufacturing Company, so holden by him. Reference to the books of said company will show. “ Now this agreement witnesseth, that if said R. Hazlett and all other bond fide stockholders, were or are not now liable to pay the remaining sum due on all shares held by them to said company, or to the creditors of said company, by due course of law, then and on the legal and final decision of such a legal proposition by any competent court, in such case, M. Eldred, Jr., agrees to surrender to R. Hazlett, the writing above referred to, to the amount of $1500, without any further delay. “M. Eldred, Jr.” To which the plaintiff’s counsel objected, but the court overruled the objection, and admitted the evidence under exception, reserving the question of its legal effect. The defendant then offered, A note of M. Eldred, Jr. dated June 24, 1852, for $6500, payable to R. Hazlett or order eighteen months after date, with interest. Also, promissory note dated October 19, 1851, by same to same, at six months, for $250. Also, due-bill from same to same, dated February 15, 1858, for $150, payable on demand, and rested. The plaintiff, having first offered evidence that the signature was the proper signature of Robert Hazlett, offered in evidence the following paper— “ No. 513 of July Term 1852. Judgment in the District Court of Allegheny County, Pennsylvania. M. Eldred, Jr. h D. S. B. for sixteen thousand dollars, conditioned for the payment of eight I thousand dollar^, with interest from v' f date of bond, in eighteen months after date. Bond dated July 24, Robert Hazlett, M. D.J 1852. Pittsburgh, February 13, 1854. Gentlemen: — I have received notice that you have this day purchased from M. Eldred, above named, the above judgment and bond. The whole amount of said bond was justly due and owing at the time I gave him the bond, and the same is still due and owing by me: and I have no set-off or defence to the said bond or any part thereof. Yours, respectfully, Pi. Hazlett.” To which defendant’s counsel objected; but the paper was admitted, and a bill of exceptions sealed. Plaintiff then called George Swartz, who testified, inter alia, that Patricks & Friend advanced said Eldred $4000 on account of the said bond — $2000 on the 13th of February 1854, and $2000 on the 16th of February 1854, in their time bills of exchange on New York, which were paid at maturity; and that he understood the assignment of the judgment to have been made to Patricks & Friend, as collateral security for the payment of the two drafts and some previous indebtedness of Eldred to them. Plaintiff then offered in evidence a letter, dated Pittsburgh, August 14, 1854, from M. Eldred to Patricks & Friend, authorizing them to sell said bond for whatever could be had therefor, and to apply the proceeds on account of his indebtedness to them. Also, check of Ann Patrick on Patricks & Friend, dated December 28, 1854, for $5000. George Swartz testified that this check was charged to her on the books of Patricks & Friend, on which there was a large balance in her favour. The defendant controverted the genuineness of the signature, It. Hazlett, to the paper of February 13, 1854, and called a number of witnesses to show that the signature was not that of Robert Hazlett. The plaintiff also called a large number of witnesses, who testified to the genuineness of the signature. The plaintiff’s counsel then submitted the following points:— 1. That the judgment on the sei. fa. in No. 599, April Term 1859, is conclusive between the parties to this action, and the verdict must be for the plaintiff. 2. If this preceding point is not affirmed, then the court is requested to charge, that the judgment on the saire facias is some evidence in favour of the plaintiff’s claim, which the jury may consider in connection with the other evidence in the cause. 3. That the bond in controversy affords a legal presumption that it was given for an actual existing indebtedness, and against any alleged equities or defalcations at its date; and that this presumption is strengthened and fortified by the form and stipulations of the bond, and also by the paper of the 13th February 1854, if the jury believe that the same be genuine. 4. If the jury believe from the evidence that the papers purporting to be signed by M. Eldred, and bearing even date with the bond in controversy, had no existence at that time, their mere production is no evidence of their existence anterior to the assignment of the bond to Patricks & Friend; and they constitute no defence either as against the said Patricks & Friend or the executors of Mrs. Ann Patrick, provided the jury believe that the said Ann was a purchaser of said judgment for a valuable consideration. 5. If the jury should believe that the papers bearing date on the 24th day of June 1852, purporting to be signed by M. Eldred, were then in existence, and they also should believe from the evidence that the said bond was created to enable Eldred to raise money on it by assignment, sale, or pledge, and that the said papers were contrived or concocted to enable him to defraud or impose upon any person who might purchase or advance money upon said bond, they cannot be set up as a defence to this action. 6. If the jury believe that the paper of the 13th February 1854 is genuine, it not only tends to rebut, but actually overthrows the presumption arising from the face of the papers anterior to that time — that they were in existence at the period they purport to have been; and the defendant was bound to prove their existence by other evidence than the papers themselves; and not having done so, they are to be excluded by the jury. 7. If the court decline to affirm the foregoing point, then they are requested to instruct the jury, that the date of a paper is only presumptive or primd facie evidence of the time when it was actually executed; and if the jury believe the paper of the ■13th February 1854 is genuine, it is evidence from which the jury may infer that not only the papers purporting to be dated on the 24th June 1852, but the other papers in the cause purporting to be dated before the 13th February 1854, had no existence ; and if so, they are to be considered as inoperative as against the beneficial plaintiff to the action. 8. If the jury believe the paper of 13th February 1854 to be genuine, and that Patricks & Friend advanced money to Eldred on the strength and faith of it, and afterwards sold the same to Mrs. Ann Patrick, who was a bond fide purchaser of said bond, the beneficial plaintiffs are entitled to recover the amount of money paid by Mrs. Patrick for said bond. 9. If the court decline to affirm the preceding proposition, then the court is requested to charge that, under the circumstances stated in the preceding proposition, the beneficial plaintiffs would be entitled to recover whatever Patricks & Friend advanced to Eldred on the strength and faith of said paper of 13th February 1854. The court (Williams, J.), after stating the facts of the case, charged as follows: — ■ “There is no controversy in relation to the execution and delivery of the bond by the intestate. The defence set up is, that the bond was given as collateral security for the payment of a note for $1500, drawn by Dr. Hazlett in favour of Eldred, of even date with the bond, payable eighteen months after date— and as security for the payment of any further sums for which Dr. Hazlett might become liable to Eldred, during the time which the note and bond had to run; and the defendant alleges that the note for $1500 has been paid, and that the purpose for which the bond was given has been satisfied. “ Another ground of defence is, that the defendant’s intestate was the holder of three promissory notes and a due-bill, amounting, in the aggregate, to the sum of $7083.41, exclusive of interest, which the defendant alleges are a good and available set-off to the bond in controversy, without reference to the purpose for, or the consideration on which, it was given. “ 1. The first question for consideration is this, viz.: has the defendant shown a good and valid defence to the bond, as against M. Eldred, Jr., the legal plaintiff in this case? “ The receipt given by Eldred to Hazlett, bearing even daté with the bond, and showing the purpose for which it was given, would, in the absence of evidence impeaching its validity, preclude Eldred from recovering anything more on the bond than the note for $1500 therein mentioned, with interest; and even if Eldred could recover the amount of the said note, without the production thereof, or accounting for its absence, still the defendant might set off any claims held by his intestate against the said Eldred. The receipt of the 24th of June 1852, and the notes .signed by Eldred, and produced by the defendant, to which I have referred, if signed and delivered by Eldred, constitute a good and available set-off and defence to the bond as against Eldred, the legal plaintiff. “ 2. Has the defendant shown a good and available defence as against the executors of Mrs. Ann Patrick, the assignee of the judgment ? It is well settled, that the assignee of a bond takes it subject to all the equities which subsisted between the original parties, and that the obligor can set up any defence to the bond in the hands of the assignee, that he could set up to it in the hands of the obligee, at the date of the assignment, and notice thereof. The defendant, therefore, may set up any defence to this bond in the hands of the executors of Mrs. Patrick, which he could set up to it in the hands of Eldred, unless estopped by some act or thing done by his intestate, from denying its validity. ‘ If an obligor induce a person to take an assignment of his bond, by. admitting the justice of the debt, or declaring that he has no defence, he cannot afterwards deny it to the prejudice of the assignee. But in order to create this equitable estoppel, it is necessary for the assignee to show, not only that he took the assignment, bnt that he paid a valuable consideration for it. If the law were otherwise, an ignorant obligor might easily be trapped into an admission, and a sham assignment might be made for the very purpose of keeping out an honest defence. The assignee must also be able to show, that the admission was made before he expended his money in procuring the assignment. Anything said afterwards can do no harm, because it could not be his motive for making the purchase, and therefore it shall not affect the other party by way of estoppel:’ Weaver v. Lynch, 1 Casey 451 — Eldred v. Hazlett’s Admr., 9 Casey 307. “ Did, then, the defendant’s intestate induce Mrs. Patrick, or her assignors, Patricks & Friend, to take an assignment of the bond, by admitting the justice of the debt, or declaring that he had no defence to'it? The bond was first assigned to Nancrede and Ballard, to secure the payment of $5000, to be re-assigned on payment thereof. It was re-assigned to Eldred, on the 11th of February 1854, who assigned it to Patricks & Friend, on the 13th of February 1854, to whom the judgment thereon was also assigned by Eldred, on the 16th of February 1854, as of the 13th, the day on which the bond was assigned. “ Did Patricks & Friend, then, under whom Mrs. Patrick, the plaintiff’s testatrix, derived title, take the assignment of the bond and judgment on the faith of the representations of Dr. Hazlett, that the debt was due, and that he had no defence or set-off thereto ; and did they advance any money or securities on the faith of the representations he made? If they did, they, would be protected to the extent of the money or securities so advanced. “ The plaintiffs allege that the defendant’s intestate, by his letter, dated 13th February 1854, addressed to Patricks & Friend, admitted that the bond was due and owing by him, and that he had no defence or set-off thereto, or to any part thereof. The defendant alleges that this letter was never signed by Dr. Hazlett — that the signature appended thereto, as the signature of Dr. Hazlett, is a forgery. Whether the alleged signature of Dr. Hazlett is his genuine and proper signature, or whether it be a forgery, as alleged, is a question of fact for the determination of the jury, from all the evidence in the cause. (The court here referred to the evidence.) “ If the jury find that the signature is not the genuine signature of Dr. Hazlett, but that the same is a forgery, the defendant is not estopped from setting up any defence which he may have to the bond, and having shown a good defence as against Eldred, would be entitled to your verdict. But if you find, that Dr. Hazlett signed the letter in controversy, another question will arise for your determination. “ 3. When was the paper executed by Dr. Hazlett, and when was it delivered to Patricks & Friend? Was it signed and deliverecl on the day on which it bears date, or was it signed and delivered afterwards, some time between the 13th and 16th of February, or after the latter date? The legal presumption, in the absence of all other evidence, is that the letter was signed and delivered the day it bears date. But this presumption may be rebutted by evidence showing that it was not, in point of fact, delivered the day it bears date, but afterwards. The jury will determine from the date of the letter, its contents, and the testimony of Wm. C. Friend, when the letter was signed by Dr. Hazlett, and delivered to Patricks & Friend. “ 4. The next question for your determination is, did Patricks & Friend advance any money to Eldred on the bond, after the letter of Hazlett came into their hands, on the faith of it ? If they did, they would be protected for the amount of the advance so made. But if they made no advance on the bond, after the letter came into their hands, the defendant is not estopped by it from setting up the defence to the bond in their hands — and it is no protection for advances previously made, because the letter of Dr. Hazlett could not have been their motive for making them: Weaver v. Lynch, 1 Casey 451. “ If the defendant is not estopped from setting up a defence to the bond in the hands of Patricks & Friend, I see no evidence in the case that will prevent him from setting up the defence as against the executors of Mrs. Patrick, the beneficial plaintiffs. There is no evidence that she purchased the judgment on the faith of the letter of the 13th February 1854, or that she even saw it, or was informed of its contents. Besides, if the letter was exhibited to Mrs. Patrick when the judgment was assigned to her, it could not operate as an estoppel against the defence set up here, because it was, as the Supreme Court, in the opinion delivered by Thompson, J., in this very case, have said, ‘ res inter alios acta, if genuine,’ and ‘ would not so operate as between the parties to this suit.’ Mrs. Patrick was no party to the letter of Hazlett — it was not addressed to her. She had no more right to advance her money on the faith of the letter, than she had to advance it on the faith of the bond or judgment, without inquiry. And there is ‘ no exception to the rule of the right of the obligor to defalcate or set up equities as against an assignee, unless he has inquired of the obligor, and ascertained that there is nothing to be set upEldred v. Hazlett’s Admr., 9 Casey 315. But though the letter of the 13th February 1854 cannot operate as an estoppel as between the executors of Mrs. Patrick and the defendant, the former may recover on the bond whatever Pat-ricks & Friend advanced thereon, on the faith of the letter, if the jury find it to be genuine. “ 5. I have thus far considered the case, and instructed the jury, on the hypothesis that Dr. Hazlett, at the date of the letter of the 13th February 1854, if that letter is genuine, might have set up the same defence to the bond as against Eldred which is now set up by his administrator here, and that the said defence is not fraudulent or covinous. But there are two other aspects in which the case must be considered: “ (1.) The plaintiffs allege that the receipt and note for $6500, given by Eldred to Hazlett, bearing even date with the bond, and the two other notes — one dated October 19, 18.51, for $250, the other dated February 5, 1853, for $183.41; and due-bill dated February 15, 1853, for $150 — were not in existence when the letter of the 13th of February 1854 was executed and delivered to Patricks & Friend, but that they were subsequently given by Eldred to Hazlett without any consideration therefor, or, if given for a consideration, then for one arising after the date of the said letter, and after notice of the assignment of the bond by Eldred to Patricks & Friend. If the receipt, notes, and due-bill referred to were not given until after the execution and delivery of the letter of the 13th February 1854, and if they were given without consideration, or for a consideration arising subsequently thereto, and after notice of the assignment of the bond and judgment to Patricks & Friend, then they constitute no defence as to the amount advanced by Patricks & Friend to Eldred, and to secure the payment of which the bond and judgment were assigned as collateral security, even if the jury should find that the letter of the 13tli of February 1854 was not actually signed and delivered to Patríeles Friend until after the delivery of the drafts and the assignment of the judgment. But if the notes and due-bill ‘ represented a bond fide indebtedness which was ascertained and fixed before the assignment by Eldred,’ then, although ante-dated and delivered after the assignment of the judgment to Patricks & Friend, they constitute a good defence as against the said Patricks & Friend, and their assignee, except so'much as was advanced by Patricks & Friend on the faith of the letter of the 13th of February 1854, after the same came to their hands. And if nothing was advanced thereafter, there can be no recovery in this case. The facts are for the determination of the jury. The legal presumption is, that the papers referred to, viz. the receipt notes and due-bill, were signed and delivered on the days and at the times they respectively bear date. But this presumption may be rebutted by evidepce showing the fact to be otherwise. The only evidence tending to rebut this presumption is the letter of 13th February 1854, and the forms, conditions, and stipulations of the bond itself, to which your attention has been called by the plaintiff’s counsel. If you find that the letter of 13th February 1854 is a true paper — that it was voluntarily given by Dr. Hazlett — it is evidence, taken in connection with the bond itself, tending to rebut the existence of the papers bearing date anterior to the letter. The letter contains admissions against the interest of Dr. Hazlett, and inconsistent with the defence now set up. If can admit of but one of two constructions, as it seems to me, consistent with honesty and fair dealing — either that the facts stated therein are true, and that Dr. Hazlett had no defence to the bond, or if he had, that he was willing to forego that defence so far as it respects Patricks & Friend; and that it might stand as security for such an amount as they might advance thereon. The jury will determine, from all the evidence in the cause, what are the facts in the case, and whether they are, or are not, as alleged by the plaintiffs. '££ (2.) But the plaintiffs contend that if the receipt and note for $6500, bearing even date with the bond, and the other notes and due-bill given in evidence, were executed and delivered On the days and at the times they respectively bear date, that the bond was created to enable Eldred to raise money on it by assignment, sale, or pledge, and that the said papers, to wit, the receipt, notes and due-bill referred to, were contrived or concocted to enable him to defraud or impose upon any person who might purchase or advance money upon said bond. And if the facts be as alleged, then these papers cannot be set up as a defence to this action, either as to the amount for which the bond and judgment were pledged to Patricks & Friend, or as to the amount advanced thereon by Mrs. Patrick. But Eldred and Hazlett had the right to make any arrangement between themselves for the satisfaction of the bond at the time it was given, if it was not intended as a means to defraud others, that they might see fit; and such an arrangement would be as good and effectual a defence against the assignees of the bond, who had taken it without inquiry, as against Eldred himself. If the papers referred to were not executed for the purpose of enabling the parties to defraud those who might become purchasers or assignees of the bond, then the defendant may set them up as against the assignees with the same effect as he could against Eldred himself, except so far as they may have advanced their money on the faith of the representations contained in the letter of Hazlett of the 13th of February 1854, if the jury find the letter to be genuine. ££ The counsel on both sides have submitted a number of points, which will now be considered. The defendant’s points are sufficiently answered in the charge, and so far as they are not answered they are refused. ££ As to plaintiff’s points, the 1st and 2d are refused. The plaintiff had the right to issue the writ of soi. fa. in order to continue the lien of the judgment, pending the controversy as to the validity and the amount due thereon; and it was an oversight, if not negligence, on the part of defendants, not to enter an appearance thereto. But the judgment on the soi. fa. is not con-elusive upon tbe defendant’s rights in this case; if it is, why are we trying the issues which involve the validity, and the amount due on the original judgment ? Instead of spending our time in a vain trial, application ought to have been made to the court to revoke the order opening the judgment in this case, if the judgment on the sei. fa. is conclusive between the parties litigant here. But the judgment on the sei. fa. is not, conclusive, nor is it, in my opinion, any evidence in favour of the plaintiff’s claim, which the jury may consider in connection with the other evidence in the case. And even if there was any difficulty on this point, I should be disposed to make the rule to open the judgment on the sei. fa. already taken, absolute. But it seems to me that the judgment, as entered, being for the penalty to be released on payment of the debt, interest, and costs of this case, may well stand for whatever amount, if any, may be found due on the trial of the issues here. And if nothing be found due, then the defendants will be entitled to have the judgment satisfied on payment of the costs. “ The 3d point is affirmed. “ The 4th and 5th points are sufficiently answered in the charge. “ The 6th point declined. “ The 7th point is sufficiently answered in the charge. “ The 8th point is declined, except so far as affirmed in the instructions contained in the charge; which the jury will bear in mind. “ The 9th point, is already affirmed in the charge. “ The jury will then determine : “ 1st. Whether the defendant has shown a good and available defence to the judgment as against Eldred, the legal plaintiff. “ 2d. If so, whether or not he is estopped by the acts and admissions of his intestate from setting up the same defence as against the beneficial plaintiffs in this case ? Did Dr. Hazlett sign the letter of the 13th February 1854, or is the signature appended thereto a forgery ? “ 3d. If he signed the letter, when was it delivered to Patricks & Friend ? “ 4th. Did Patricks & Friend, after the same came into their hands, advance any money or securities on the faith of it ? If so, the executors of Mrs. Patrick would be entitled to recover the amount advanced, with interest from the date thereof. But they would not be entitled to recover more, unless the defence set up here is fraudulent or covinous. “ 5th. When did Eldred execute and deliver to Hazlett the receipt for the judgment and the note for $6500, and the two other notes and due-bill given in evidence? Were they signed and delivered on the days and at the times they respectively bear date, or after the execution and delivery of the letter of the 13th February 1854 ? And i-f they were signed and delivered after the letter of the 13th February 1854, were they given without consideration, or for a consideration arising subsequent to the date of said letter, and after notice of the assignment of the bond and judgment to Patricks & Friend ? If so, the beneficial plaintiffs may recover the amount advanced by Patricks & Friend, even if the latter did not receive the letter of the 13th February 1854, until after they had delivered the drafts to Eldred, and had taken an assignment of the bond and judgment. “ Was the bond, upon which the judgment in this case was entered, created to enable Eldred to raise money on it by assignment, sale, or pledge ? — and were the receipt, and the note for $6500, and the other notes and due-bill given in evidence, contrived and concocted to enable Eldred to defraud or impose upon any person who might purchase the said bond or advance money or securities thereon ? If so, the beneficial plaintiffs may recover the amount advanced by Patricks & Friend, or even by Mrs. Patrick, although the receipts and notes may have been executed and delivered when the bond was given. “ One word in regard to the agreement of the 4th March 1854. The jury will give to that agreement no consideration whatever, if they find that Hazlett had notice of the assignment of the judgment to Patricks & Friend, when that paper was delivered to him by Eldred.” To which instructions of the court and answer to the points submitted, the plaintiff’s counsel did then and there except. The jury found in favour of the defendant, and judgment having been entered thereon, the plaintiffs sued out this writ, and assigned for error the following matters, viz.:— 1. The court erred in opening the judgment rendered on the sei.fa. de novo, in No. 599, November Term 1859, at the instance of defendant, upon his following reasons:— “ First. A sei. fa. on the same judgment is still pending and undetermined, at No. 459, January Term 1855. “ Second. The original judgment had been, was, and now is, opened to let the defendant into a defence on its merits, and a jury sworn is now to try the issue joined therein. “ Third. The reasons given in the opening of the original judgment are again reiterated upon this application.” And in making the following order thereon: — ■ “And now, to wit: April 13th 1860, the court order the judgment in the above case to be opened, and the defendant let into a defence — and direct this paper to be filed nunc pro tune, as of the 11th inst.” 2. The court erred in refusing to charge the jury as requested in the plaintiff’s first point, and in answering the same as was done. 4. The court erred in not answering plaintiff’s fourth point. 5. The court erred in refusing to charge the jury as requested in plaintiff’s sixth point. 6. The court erred in refusing to affirm plaintiff’s eighth point. And in charging the jury that Mrs. Ann Patrick could recover no more on the bond than Patricks & Friend. 7. The court erred in admitting in evidence the agreement of the 4th of March 1854 (anté, p. 19); and in charging as follows as to the legal effect of said paper: “ One word in regard to the agreement of the 4th March 1854. The jury will give to that agreement no consideration whatever, if they find that Hazlett had notice of the assignment of the judgment to Patricks & Friend, when that paper was delivered to him by Eldred.”
38 Pa. 34Crawford v. Stewart (1861)
Error to the Common Pleas of Fayette county. This was an action of debt, brought by “ The treasurer of Eayette county, for the use of Isaac Baily, administrator of Christian Wireman, deceased, and Mary Zeilin, against Andrew Stewart,” on a bond given by him as purchaser at a treasurer’s sale of unseated land, for the surplus-money that remained after satisfying the taxes for which it was sold, and costs. The suit was brought September 6th 1856, and the writ served September 9th 1856. December 10th 1856, there was a rule on plaintiff to declare or non pros., and on the 26th of December a declaration was filed with a rule to plead, under which the defendant pleaded nil debet and payment, and payment with leave, &c. At March Term, when the cause came on for trial, the court, on application of plaintiff’s counsel, struck out the name of Mary Zeilin, as ’one of the equitable parties; and at the same term, on leave given, the defendant filed the following special plea:— “ That at the time of the sale of the tracts of land by the treasurer of said county, on which the surplus bond sued upon in this case was given, neither Christian Wireman nor Mary Zeilin were the owners of said land, nor had they or either of them any interest or estate in or to said tracts or either of them.” To this plea the plaintiff put in the following replication, viz.: “ And the plaintiff to the above plea of the defendant pleaded, says that by reason of anything therein contained that he ought not to be barred of his said action, because he says that the facts as therein alleged are not true, and this he prays may be inquired of by the country, &c.” The cause was then continued. At June Term 1860, the case was again called for trial, when plaintiff’s counsel, on leave given, amended the style of the suit by inserting the name of “William Crawford, late,” so as to read William Crawford, late treasurer of Fayette county, for use, &c. A jury was then called and sworn, when the plaintiff gave the bond of the defendant.-in evidence, and rested. The defendant’s counsel then moved the court to quash the writ, upon the ground that the administrators had no right to bring the suit, and must show that they were the original owners at the time of the sale. The plaintiff’s counsel objected that the writ of summons could not be quashed after a plea in bar, and asked and obtained leave further to amend by striking out the name of the cestui que use. The court- discharged the jury and quashed the writ, for the following reasons :— “ The plaintiff has yielded to the special plea of the defendants, which is an admission that the persons for whose use the bond was sued were not the original owners, or that they were not prepared to show it. Now the defendant stands ready with his other pleas, and professes to be able to show that he himself was the original owner at the time of the sale. Is it our duty to permit the suit to go on under the circumstances ? If we do, the rights of others might be impaired or lost altogether. We think there is sufficient in the case in 1 Jones 488, Irish v. Johnston, to warrant the court to discharge the jury and quash the writ. If no defence to the recovery was to be made, we might receive the verdict and enter judgment and ascertain the rights to the money, after its payment into court. But as it at present stands, the real owner of the land or money arising therefrom, might be for ever barred by a verdict and judgment, and that without being allowed a day in court. The jury is therefore discharged, and the court order the writ of summons to be quashed.” The plaintiff thereupon sued out this writ, and assigned for error the discharging of the jury and the quashing of the writ, as above stated.
38 Pa. 40Arthurs v. Smathers (1861)
Sale of Seated Lands for Taxes, Notice to Owner. — Right of Landowner to redeem. — Transfer from seated to unseated list. — Assignments of Error, how made. 1. Where seated lands are sold for taxes, under Act of 29th April 1844, the owner must have actual notice from the treasurer of the county where the lands lie. He has the right to await such notice, and is entitled to one year thereafter to redeem. 2. Land once seated and occupied by residence and cultivation cannot be assessed and sold as unseated, where the dereliction of possession was but little more than one year; but it may be transferred from the seated to the unseated list without notice to the owner. 3. Under the rules of the Supreme Oourt (6 Harris), assignments of error to the answer of the court below to points, will be dismissed if the point do not appear upon the paper-book. 4. Laird v. Heister, 12 Harris 453, affirmed.
38 Pa. 46Plumer v. Reed (1861)
This was an action of ejectment brought by Samuel F. Plumer and Frederick G-. Crary, for the use of Frederick Gr. Crary, against John L. Reed, for twenty-two acres of land in Licking township. The case was this: — In 1837 Mrs. Curwin entered into articles of agreement with Henry Neely, for the sale of 216 acres of land.
38 Pa. 49Gibson v. Winslow (1861)
This was an action of ejectment brought by Reuben Winslow against John Gibson, Charles Miller, Robert Rothrock, and Thomas Tozier, for the undivided moiety of a tract of land in Jay township, known as the Caledonia'property, surveyed on warrant No. 5285, in which the writ was served on all the defendants except Miller, and an appearance entered for all defendants served.
38 Pa. 56Duvall's v. Darby (1861)
Error, to tbe Common Pleas of Washington county. This was an action brought by J. M. Spriggs, executor of the last will and testament of William Duvall against J. W. Darby, Hugh McClelland, and A. Wallace, on an accommodation note for $1650 dated May 29th 1856, signed by defendants, made payable to Darby & Craig and by them endorsed to plaintiff’s testator. The plea was non assumpsit and payment with leave.
38 Pa. 60Taylor v. Henderson (1861)
Error, to tbe Common Pleas of Mercer county. This was an action of trespass guare clausum fregit, brought to January Term 1858, by Samuel Henderson, against Aaron Taylor, to recover damages for an alleged trespass on a tract of land in Worth township, containing about twenty acres, situate in the south-west corner of a tract of four hundred acres, warranted in the name of Jacob Eritz.
38 Pa. 63Brandon v. Bannon (1861)
This was an action of ejectment, brought by Elliott Brandon against Wallace Bannon and others, to recover a tract of four hundred acres of land in Sugar Creek township. The case was tried in the court below in 1858 or 1859, when there was a verdict and judgment for the plaintiff. On writ of error the judgment was reversed, and a venire de novo awarded.
38 Pa. 65Baskin's Appeal (1861)
Appeal by B. F. Baskin, one of tbe administrators of Gr. W.. Baskin, deceased, from the decree of the Orphans’ Court of Mercer county confirming the report of the auditor, directing the administrators to appraise and set apart $300 worth of personal and real estate to L. Eveline Baskin, widow of deceased. Dr. Gr. W. Baskin died on the 1st of April 1853, without issue, leaving a widow and mother surviving him, who were entitled to his estate.
38 Pa. 69Hunt v. McFarland (1861)
Error, to tbe Common Pleas of Lawrence county. This was an action of ejectment, brought in the court below, to May Term 1856, by Rob.ert McFarland against James Hunt and Alexander Hunt, for a tract of land in Scott township, Lawrence county, described in the writ as “bounded on the west by George and Jacob McCracken, on the south by James Hunt and Alexander Hunt, east by land of Zaehariah Dean, and north by land of plaintiff, containing about sixteen acres, more or less,…
38 Pa. 72Hite v. Kier (1860)
Err.or, to the District Court of Allegheny county. This was an action of covenant brought by James .Kier and Margaret his wife to November Term 1858, against P. Y. Hite, on an agreement made October 6th 1856, between James Kier and Margaret his wife (only child and heir of Andrew Sproule, deceased), and Mary Sproule, widow of said Andrew, of the one part, and P. Y. Hite the defendant. By the agreement Kier and wife and Mrs. Sproule agreed to sell, assign, and set over, and by good and sufficient deed to convey to Hite, his heirs and assigns, all the right, title, interest, estate and claim of said Kier to certain leasehold premises therein described, being the same premises described, &c., in an original lease thereof, dated January 29th 1853, from Joseph Crawford to Israel Overall and A. W. Lane. And in consideration thereof, Hite agreed to pay §6000 in instalments, &e. On the 6th of October 1858, an instalment of $500 became due, which Hite refused to pay, alleging that Kier and wife had no title in the said premises, but that the title thereof was in the heirs of Crawford; and that he (Hite) had been obliged to buy the same afterwards, at an Orphans’ Court sale, in order to save himself from greater loss and damage. The plaintiffs thereupon brought this action, and filed their declaration, to which defendant pleaded covenants performed absque hoc, &c., payment with leave, &e. At the opening of the case, defendant’s counsel asked leave to amend his plea, and craved oyer of the agreement declared on; which being granted, he alleged and pleaded, that plaintiff at the time of executing said agreement, had no right, title, interest, ■and claim to the premises covenanted for, nor to the lease or premises therein described. The plaintiff then offered in evidence the agreement declared on, and asked leave to amend the declaration by adding the name of Mary Sproule, so as to make it correspond with the agreement, which was allowed under objection. The plaintiff then proved possession of the premises by Andrew Sproule, and after his decease by Kier, and that the hand-money and several instalments had been paid under the agreement by Hite, and closed. Defendant’s counsel moved for nonsuit on the ground that the evidence offered by plaintiffs was insufficient to enable them to maintain their action, as it did not show any right, title, interest, or claim in the property which they covenanted to convey. This motion being overruled by the court, the defendant offered in evidence a deed from Joseph Ball and others to Joseph Crawford for two hundred and fifty-nine acres of land, embracing the premises described in the agreement; the proceedings in partition by the heirs of Joseph Crawford, which resulted in the sale of the property to Hite. In the Orphans’ Court proceedings, the property is described as being subject to certain leases of salt work privilege, &c., referring to a devise under which Sproule claimed to hold possession. Defendant’s counsel then requested the court to instruct the jury:— 1. That the plaintiffs not having shown any title to the premises covenanted to be conveyed, are not entitled to recover. 2. The defendant having shown a title in the lands of Joseph Crawford, derived from him to himself, holds a perfect title to the property mentioned in the agreement as against Israel Overall and Abner W. Lane, and all persons having an assignment from them. 3. That the plaintiffs having covenanted that at the time they entered into the agreement they had a title to the property, are bound to show that title under the pleading in this action, and having failed to do so, are not entitled to recover. 4. That as the case stands, the defendant is entitled to a verdict, on the ground that equity would interfere and set aside the contract, for the reason that the plaintiffs having exhibited nothing but a possessory right, the price covenanted to be paid by the defendant, shows a fraud, which would induce a Court of Equity to interfere, and set aside the contract. And if the court did not charge as requested in the last point, that it be submitted, as a question of fact for the determination of the jury. , The court refused to charge as requested in defendant’s points, and instructed the jury that the defendant had failed to show any good and valid defence to this action. To which the defendant’s counsel excepted. Under this instruction there was a verdict and judgment for plaintiff for $600.50, whereupon the defendant sued out this writ, and assigned for error the following matter, to wit:— 1. The court erred in allowing plaintiff to amend his declaration by adding the name of Mary Sproule, because it changed the cause of action: in refusing to charge as requested in the defendant’s points, and in instructing the jury, that defendant had failed to show any valid defence to the action.
38 Pa. 76King v. McCully (1860)
In Equity. This was a proceeding in Equity, by Alexander King against James McCully, in which a decree of the court below was prayed for, requiring the respondent to remove and abate certain fences and other obstructions which complainant averred had been erected across a private way which he claimed as appurtenantto certain lots in Collins township (part of a larger tract the property of James S. Negley), which he had purchased at sheriff’s sale.
38 Pa. 78Partridge v. Partridge (1860)
This was a scire facias on a mortgage, brought in the name of Ann Partridge, Adam Roy, and Elizabeth Roy, for the use of James McMahan, against Joseph Partridge, to November Term 1860.
38 Pa. 81Hays v. Pittsburgh & Steubenville Railroad (1861)
This was an action on the case hy the Pittsburgh and Steuben-ville Railroad Company against Robert S. Hays and George Black, partners trading as Hays &, Black, to recover an… Held: that the evidence of the calls for instalments, and the notice, was sufficient to entitle the company to recover, except the instalment required on the 1st of March 1853, for which, as there was no evidence of a resolution authorizing a call, the plaintiff was only entitled to simple interest.
38 Pa. 93Lorenz's Administrators v. King (1861)
Attachment of Legacies. — Set-Off by Administrator. — Acceptance of service by Attorney. — Form of Judgment against Administrators and, Trustees. 1. A legacy or distributive share may be attached before any settlement of the estate of the decedent. 2. Judgment may be had against the administrators as garnishees, if they have ample funds to pay the legacy after all debts of the estate are discharged. 3. Whether an attorney may accept service of an attachment execution— quaere ; but appearance by the parties is a waiver of defects in the service. 4. A judgment held by an administratrix in her own right against a legatee, cannot be set up against one who attaches the legacy in the hands of the administrator. 5. Where the administrators are garnishees, it is error to enter judgment against them de bonis propriis. Layman v. Beam, 6 Wh. 186, qualified.
38 Pa. 98Denny & Exchange Bank v. Lyon (1861)
In Equity. This was a proceeding in equity by Electa Lyon against William Denny and the Exchange Bank of Pittsburgh, in which the complainant prayed for a preliminary injunction, enjoining and restraining Denny from making, and the Exchange Bank from permitting or suffering to be made on the books of the bank, a transfer of twenty-eight shares of capital stock of the bank, and for a decree ordering the transfer of said shares to complainant.
38 Pa. 102Gallagher v. Fayette County Railroad (1861)
This was a proceeding in equity in this court, by John Gallagher against The Fayette County Railroad Company, in which the complainant set out a contract with the company for a right of way over his grounds, and for the purchase and sale of an acre and a half of land for the erection of a depot, &c., averring a breach of the contract on the part of the company in the purchase of other land for a depot, and praying for an injunction to restrain the respondents from…
38 Pa. 104Frazier v. Pennsylvania Railroad (1861)
This was an action on the case brought against the Pennsylvania Railroad Company by William Frazier, who was a brakes-man employed by the defendants, to recover damages for personal injuries received by him in the course of his employment, by reason of a collision of trains, caused by the negligence of one of the conductors of the defendant.
38 Pa. 112Duval's Appeal (1861)
Construction of Will. — Rights, Liabilities, and Duties of Trustees empowered to sell Real Estate.— Compensation of Trustees. — Protection of Contingent Interests on conversion of Real Estate. 1. A testator by his will appointed his wife executrix, and after giving certain real estate to his children, devised the residue to trustees in trust, to be sold at public or private sale, the proceeds to be applied to the payment of debts not otherwise provided for, and the surplus to be divided among his children or their issue. Held, that notwithstanding the devise to trustees, the duty of paying the debts devolved upon the executrix: That the directions in the will did not make the trustees the personal representatives of the deceased, but substituted a sale by them to pay debts, &c., for a sale by the Orphans' Court: That it was not a misapplication of the trust fund for the trustees to place a portion of the proceeds of the residuary estate in the hands of the executrix, and That under the circumstances, the trustees were under no obligation to see to the application of the money paid by them to her while the debts were unpaid. 2. The powers given in the will to the trustees to sell, include a power to convey to the executrix to enable her to mortgage the property conveyed, in order to raise money to pay the debts. 3. In the case of a trust to sell real estate and apply the proceeds, though continued in existence for sixteen years, the allowance of five per cent, commissions and one per cent, brokerage, would be unreasonable. 4. The compensation allowed to trustees is determinable by no fixed rule, oecause the labour and skill required in executing the trust must vary with its subject-matter. 5. Where money is substituted for land, after a sale of real estate, all interests, subsequent to those of the first taker, which may vest on the happening of a contingency, require protection, and to that end the Orphans’ Court, under the Act of 24th February 1834, must exact security from him.
38 Pa. 122Wagner's Appeal (1861)
This was an appeal by Samuel Wagner, as trustee of his wife Emily and children, from the decree of the Orphans’ Court, distributing the estate of James S. Duval, deceased, in the hands of Samuel Wagner and Oeorge B. Rodney, who were surviving trustees under the will of said deceased. James S. Duval died in 1842, having first made his will, dated March 18th 1842, and a codicil thereto, dated March 22d 1842, which were proved at Philadelphia, April 19th 1842.
38 Pa. 128Uhler v. Sanderson (1861)
Verdict on Common and Special Counts in Assumpsit. — Defence to Action on Banlc Chech. — Evidence under plea of Payment with Leave¡ &c. 1. Where the declaration in an action of assumpsit contains a special count on a check or note, with the common counts, and the pleas are payment with leave and set-off, the plaintiff can recover no more than the amount of the check with interest, if he offer no evidence under the common counts. 2. In an action on a check given for keeping and feeding hogs, the drawer may, under the plea of payment with leave, show in defence an overcharge, deficiency in quantity, &c., as unliquidated cross-demands growing out of the same transaction. 3. Payment with leave is a general issue plea, and with notice of special matter admits anything which proves fraud, mistake, want or failure of consideration, and shows that ex ceguo et bono a part or whole of the amount claimed should not be recovered. 4. The defendant is not estopped from recovering damages for breach of contract, known to him when he gave the check upon which suit was brought.
38 Pa. 130Desilver v. State Mutual Insurance (1861)
Error to the District Court of Philadelphia county. These were actions on the case, brought by R. Wilson Desilver, to - the use of Robert J. Hemphill, against The State Mutual Insurance Company. The declarations were in assumpsit on policies of insurance in the usual form, to which the defendants pleaded the general issue, with several special pleas, one of which negatived the averments in the narr., “that the plaintiff delivered to the defendants an account of the said loss and damage, and in all other respects complied with the provisions, terms, by-laws, and conditions of the said policy, on his part to be performed;” and one other of which negatived the averment in the narr., “ that the defendants dispensed with and waived all the proofs, declarations, and certificates required by the said policy, or necessary before instituting the suit.” To which said pleas the plaintiff replied, joining issue. On the trial the plaintiff gave in evidence the policies declared on, which covered his interest in a brick dwelling-house in Duke street, Philadelphia, and which, with other policies, .had been assigned to Mr. Hemphill. To these policies there were certain conditions attached, among which was the following: “ 9. All persons insured by this company, and sustaining loss by fire, are forthwith to give notice to the company; and as soon after as possible to deliver a particular account of such loss, signed with their own hands, and verified by their oath or affirmation ; and also, if required, shall produce their books of account and other proper vouchers; they shall also declare, on oath, whether any, and what other insurance has been made on the same property; what was the whole value of the subject insured; what was their interest therein; in what general manner (as to trade, manufactory, merchandise, or otherwise) the building insured or containing the subject insured, and the several parts thereof, were occupied at the time of the loss, and who were the occupants of such building; and when and how the fire originated, so far as they know or believe ; and procure a certificate under the hand of a magistrate, or notary public (most contiguous to the place of the fire, and not concerned in the loss, or related to the insured or sufferers), that he is acquainted with the character and circumstances of the person or persons insured, and has made diligent inquiry into the facts set forth in their statement, and knows or verily believes that he, she, or they, really and by misfortune, and without fraud or evil practice, hath or have sustained by such fire, loss and damage to the amount therein mentioned; and until such proofs, declarations, and certificates are produced, the loss shall not be deemed payable.” The plaintiff proved also the destruction of this property by fire, and that the following notice had been given to the company by Mr. Hadder, a book-keeper of the plaintiff: “ I went to the premises in Richmond on the 21st of February 1852. This wa.s one or two days after the fire. I came right down, and went on the same day to the office of the insurance company, and saw Mr. Coggshall (a member of the firm of Gillett & Goggshall, who were the Philadelphia agents of the company), and told him of the fire. He said he was already aware of it. Mr. Hemphill accompanied me to Richmond and to the insurance office. Mr. Hemphill asked Mr. Coggshall if he would send a person up to see the premises. I don't distinctly recollect his answer; but it was either that he had sent, or that he would send. Mr. Hemp-hill asked him if he wished any further notice, or whether that would be sufficient. He said no, that no further notice was necessary. That was distinctly said. I think Mr. Hemphill asked him the second time as to notice, and he gave the same reply again.” The plaintiff contended that this amounted to a waiver by the company of the notice, and the proofs, declarations, and certificates mentioned in the foregoing condition; or, at ieast, that it was some -evidence of a waiver which should go to the jury. But the learned judge of the District Court directed a judgment of nonsuit to be entered, and refused, on motion, to take it off. Whereupon the plaintiff sued out this writ, assigning for error that 1. The court below erred in directing a nonsuit, and in not allowing the evidence to go to the jury. 2. There was some evidence of a waiver, and this should have been left to the jury to give it such effect as they might deem proper.
38 Pa. 135Bank of Delaware County v. Broomhall (1861)
Error to the Common Pleas of Delaware county. This was an action on the case, brought August 9th 1858, by John Broomhall against the Bank of Delaware County, to recover damages for an alleged negligence in protesting before maturity a note which had been left with the bank for collection. The case was this: Broomhall, being the endorser and holder of a promissory note drawn by Henry E. Peirce to the order of John L. Pennell, for $225, at sixty days, deposited it, on or about the 1st of January 1858, in the bank for collection. At the time of its execution the date, which was December 11th 1857, had been altered with consent of the parties to December 15th 1857, in which condition it went into the bank, but it did not appear that the officers were informed of this. Tho date as altered was imperfect and obscure, and was, after a careful examination, read by the bank officers “December 5th 1857,” marked as maturing February 6th 1858, on which day it was, in due form of law, protested for non-payment, of which the parties had notic-e. The defendant below requested the court to charge the jury as follows:— 1. The bank acted in the matter as the agent of the plaintiff, and, receiving no compensation for its services, is only responsible for gross negligence. 2. If the jury believe that the face of the note was such that an ordinary observer might be misled as to the time of maturity, the defendant is not liable for a mistake of the time. 3. If the plaintiff was guilty of negligence, and if that negligence contributed to the mistake of the defendant, the latter is not liable. 4. The date of the note having been altered, it was the duty of the plaintiff to notify the defendant of the true date. 5. If the jury believe that the plaintiff received notice of the protest at or about the time, then as the true maturity was ten days after, it was the duty of the plaintiff to inform the defendant of the error, and his not doing so was such negligence on the part of the plaintiff as wholly relieves the defendant from liability. 6. The notary, as well as the bank, was the agent of the plaintiff. If a mistake was made, it was his; and he, and not the bank, is liable. The court below, after stating the facts briefly, charged in substance that “it was in evidence that the note had been altered from December 11th to December 15th at the time of its execution, with the knowledge and consent of Mr. Pennell;” that “there was negligence in the bank, in not ascertaining from the plaintiff the true date of the maturity of the note before handing it over to the notary for protest;” that “the bank was a general agent in the collection of notes, and, whether with or without reward, was bound to use due diligence in such cases,” defining that to be “ reasonable and proper care, skill, and judgment, such as other persons of experience and skill exercising the same profession would have exercised under similar circumstances.” The second, fourth, fifth, and sixth points of defendant were negatived. There was a verdict and judgment in favour of the plaintiff for $280.05; whereupon the defendant sued out this writ, and assigned for error here— 1. The court below erred in deciding the true date of the note. This should have been left to the jury upon the testimony and upon inspection. 2. The court erred in instructing the jury that the bank was guilty of negligence in not “ ascertaining the true date from the plaintiff before handing the note to the notary.” 3. The court erred in not affirming the defendant’s second, fourth, fifth, and sixth points. 4. The court erred in not instructing the jury that the plaintiff had not made out his case.
38 Pa. 137Rogers v. Whiteley (1861)
 Errors assigned must appear on the Record. The Supreme Court will uot review the decision of the court below, discharging a rule taken to stay an execution, on the ground that the debt due by the judgment was attached in the defendant’s hands, where the record of the attachment was not brought up with the writ, nor so pleaded as to make it a part of the record ; nor will they review a decision where the question raised by the rule was submitted to the discretion of the court below.
38 Pa. 138Rees v. Stillé (1861)
Proper Authentication of Wills. — Sealed Verdict no part of Record. 1. The proof of a will consists of evidence of its authentication in due form of law, and of its being the voluntary testamentary disposition of a sound mind. Whether it be duly authenticated, is a question of law for the court; whether it was the product of a sound mind, is exclusively for the jury. 2. The issue being as to the validity of a codicil, the paper itself would have been properly laid before the jury, without any proof of its execution, not as evidence, but to enable the jury to see what they were to try; admitting it in evidence was only deciding that there was sufficient preliminary proof to warrant a submission to the jury to find whether the fact was established that the testator affixed his signature. 3. Of three subscribing witnesses to a codicil, one proved unqualifiedly the signature and' mental capacity of the testator; the second testified that the testator wrote his name, unassisted, except as to the last two letters (his hand being held or guided in forming them), but denied that at the time of such execution he was possessed of mental capacity: Held, that the fact of execution was sufficiently proved by two witnesses, and that it was therefore proper to submit the codicil to the jury, and that there was no duty incumbent on the plaintiff to call the third subscribing witness. 4. The due execution of the codicil being proved, the burden of disproving it, and showing that a paper, the contents of which were unknown to the testator, was imposed on him, rests on the defendant. 5. A sealed verdict is no part of the record, and does not become so by filing; the finding in open court being the only verdict that is admitted of record.
38 Pa. 146Ramborger's Administrator v. Ingraham (1861)
On the 4th of June 1856, Peter Ingraham and wife conveyed to Hannah Ramborger a house and tract of land in Darby township, and took from her a judgment-bond in $600, conditioned for the payment of $300, in one year from June 5th 1856, part of the purchase-money, which was entered up on the same day. At the time of the execution of this bond, Hannah Ramborger was a married woman. Shortly afterwards, she died, leaving her husband and an infant child surviving her.
38 Pa. 147Hearn v. Kiehl (1861)
This was an amicable action in case, entered in the District Court of Philadelphia, to December Term 1859, in which George A. Hearn was plaintiff, and John Kiehl and William Kiehl, partners, doing business as John Kiehl & Son, were defendants. The suit was brought on a promissory note for $168.95, signed by defendants, September 5th 1859, and payable to order of plaintiff, four months after date.
38 Pa. 150Collins v. Webster (1861)
Error to the Common Pleas of Delaware county. Thomas Collins, of Philadelphia, purchased in March 1859, a farm in Delaware county, for $9500; paid on account of the purchase-money in cash about $3000, and gave a bond with warrant of attorney to confess judgment and a mortgage for $6700, to John Webster, payable in five years from date, with interest at six per cent., payable annually, and providing, therein that if default be made on the payment of interest for sixty days after any of the interest payments shall become due, then the whole debt should become due and payable. Judgment was entered on this bond in the District Court of Philadelphia, March 18th 1859, in which the proviso as to interest was entered on the record. On the 16th of August 1860, the record of this judgment was filed in the Court of Common Pleas of Delaware county (and entered as in the original entry) by the plaintiff, who on the same day issued an execution, under which the farm of defendant was levied on and condemned. On the 24th of September 1860, a vend. ex. was issued, and on the 8th of November 1860, the farm was sold by the sheriff for $4600. On the 24th of October 1860, Collins sued out this writ, and assigned for error the allowance of any process in execution of the judgment entered in the District Court of Philadelphia county, because the record shows that the money mentioned in the condition of the bond was not due and payable.
38 Pa. 151Hill v. Newman (1861)
The plaintiff in error, George W. Hill, on the 9th of February 1860, filed a mechanic’s lien against a two story dwelling house, kitchen, and stable, and the lot of ground on which they were erected, in Aston township, Delaware county, naming therein the Right Rev. J. N. Newman, and his successors in office, as owner, or reputed owner, and George W. Williams, contractor, and appending thereto his bill, which was for hauling lumber for the building described in the claim.
38 Pa. 153Richardson v. Hogg (1861)
Error to the District Court of Philadelphia. William Richardson and John Lemon were sued in the District Court as partners trading as John Lemon, by William Hogg, Jr., on a promissory note dated March 21st 1860, for $580.79, payable in six months, signed by John Lemon; payable to his own order, and endorsed by him in blank. There were two other suits against the same firm, one by Mr. Journey and one by Mr. Hogg, in which the same questions were presented for the decision of the court below, the same errors assigned, and which were argued together in this court. A copy of the plaintiff’s claim was filed with the declaration in each case, and was responded to by aflidavits of defence on the part of Mr. Richardson, who was joined with Mr. Lemon as co-defendant, as follows, to wit:— “William Richardson, one of the above defendants, being duly sworn, deposes and says that he has a defence to the above action, of the following nature and kind, viz.: That the note sued upon was drawn and endorsed by John Lemon, above named, without this deponent’s knowledge or privity; that the firm of John Lemon was a limited partnership, under the Act of 1836, in which he, this deponent, was a special partner only, and that he, this deponent, has complied with the terms and conditions of the law, which were duly published; that he, this deponent, has not withdrawn any part of the moneys contributed by him, as set forth in the articles of copartnership — a copy of which, recorded in Limited Partnership Book T. H., No. 1, page 305, &c., is hereto annexed, marked ‘ A,’ and which he submits to the court as a part hereof. Nor has this deponent received anything in money, goods, or securities, from the partnership on account thereof; nor has he interfered in the general conduct or management of the business, which was alone conducted by the said John Lemon, under the name of John Lemon, and not by this deponent and him, under that name, except in the special manner above mentioned.” By the articles of copartnership referred to in the affidavit, it appeared that William Richardson and John Lemon, on the 6th of March 1860, entered into an agreement for a limited partnership in the business of buying and selling carpeting in Philadelphia, under the firm name of John Lemon, for two years, unless dissolved by consent of parties or death. Richardson was to furnish the stock in the store, valued at $6700, and $5000 in cash capital, while Lemon was to furnish all his time, attention, labour, and skill in and about the conducting of the business. Richardson was to be entitled to the interest at 6 per cent, on $10,000, and 66-| per cent, of the annual profits of the business, while Lemon was to have for his services 38£ per cent, of the profits if the same should exceed $1200, which sum he was to have in any event. A son of Mr. Richardson was to keep the books of the firm, and receive a salary of $1500. All notes, checks, and obligations of the firm were to be signed by John Lemon, but not without the knowledge and approval of the book-keeper, who was to enter the same in a book to be kept for the purpose, all books to be open to the inspection of the partners. The salary of Lemon to the extent of $1200, and the interest due to Richardson, to be drawn out by them annually. This agreement was duly executed and acknowledged by the .parties, and, with the affidavit of Lemon that Richardson, the special partner, had paid into the common stock the $5000 specified in the agreement, was properly recorded. The court entered judgment in favour of the plaintiffs in each of the cases for want of a sufficient affidavit of defence, which was assigned here for error by Richardson, by whom the writs of error were taken.
38 Pa. 157West Chester School District v. Darlington (1861)
Error to the Common Pleas of Chester county. ' This was an amicable action in case between The West Chester School District, plaintiffs, and William Darlington, guardian of the estates of. Sarah H. Tanner and Caroline M. Tanner, and also guardian of the estate of Emma V. Cornog, defendant, in which the following case was stated for the opinion of the court: William Darlington, a resident of the borough of West Chester, was, on the 2d day of May 1855, appointed by the Orphans’ Court of Chester county, guardian of the estates of Sarah H. Tanner and Caroline M. Tanner, minors, residing in the state of Ohio, they being possessed of estates' lying within the jurisdiction of said court: and on the 29th day of April 1852, he was also appointed by said court, guardian of the estate of Emma V. Cornog, a minor child of John Cornog, she residing with her father in Wallace township, in said county of Chester. At the last levy and apportionment of the taxes for school purposes, made by the said School Directors of the West Chester School District, there was levied and apportioned on the personal property of the said Sarah IT. Tanner and Caroline M. Tanner, the minors resident in the state of Ohio, a tax of $4.78; and on the personal property of the said Emma V. Cornog, the minor resident with her father in Wallace township, Chester county, a tax of 96 cents. These taxes were levied and apportioned on the personal property of the said minors made taxable for state and county purposes, agreeably to the copy of the last adjusted valuation furnished by the commissioners of Chester county, and it is admitted to be a correct apportionment of said tax, on the amount of personal property belonging to said minors, in the hands of said guardian, but which the said guardian objects to paying, on the ground that the said property is not justly chargeable with the payment of a common school tax, for the benefit of the West Chester common school district. If the court shall be of opinion that the property of said minors, resident in the state of Ohio, and in Wallace township, Chester county, is thus taxable in the hands of the said guardian, resident in West Chester, for the benefit of the West Chester School District, then judgment to be entered in favour of the plaintiff, for the sum of $5.74. If the property of either the minors residing in Ohio, or the minor residing in Wallace township, ■ Chester county, shall be thus taxable, and the other not thus taxable, judgment to be entered for the plaintiff, for the amount of taxes levied on the property thus taxable. If neither is thus taxable, judgment to be entered for the defendant. The court below gave no written opinion, but directed judgment to be entered in favour of defendant, which was assigned for error here by the plaintiff.
38 Pa. 160Directors of the Poor v. Worthington (1861)
Error to the Common Pleas of Chester county. This was an action by Wilmer Worthington, against the Directors of the Poor and of the House of Employment of the County of Chester, in which, after a trial and verdict, and the filing of reasons for a new trial, the following case was stated for the opinion of the court: Humphrey Broomhall, on the 27th day of October 1856, received a severe injury upon the Pennsylvania Railroad near Oakland Station, in Chester county. His arm was broken, and he was otherwise seriously injured, so as to require prompt medical attendance. Several physicians were immediately called, among whom was the plaintiff. Upon consultation, it was concluded that he could not be moved to the county poor-house, with any hope of preserving his life, but that possibly he might be removed by railroad to West Chester, his place of residence. Accordingly he was put upon a bed, placed in a car, and carried to that place and left in his brother’s house, on the 29th of October 1856. On the 30th of October 1856, his arm was amputated and wounds dressed by the plaintiff, who continued to attend him until the 9th of February 1857, when he was removed to his father’s house in Delaware county, a distance of about eight miles, by putting him in a bed, in a light wagon, and walking the horses carefully all the way. Up to this period he was unfit to be moved to the poor-house. He recovered, and some time prior to April 1859, he returned to West Chester. He was poor at the time of the accident and during his illness, and was a proper subject for relief, under the poor laws of Pennsylvania. On the 18th day of April 1859, the plaintiff procured an order of maintenance and relief from Henry Fleming, a justice of the peace of said county, declaring said Broomhall a pauper. The plaintiff’s bill, as physician, amounted to $120. The distance from Oakland to the Chester County Poor-House is from eight to ten miles. The distance from West Chester to the poor-house is about six miles. Marshall B. Hickman, one of the Directors of' the Poor in 1856 and 1857, lived about two miles from West Chester. His residence was well known to the plaintiff, and he was in the habit of receiving his letters and papers at the post office in West Chester. He, or some of his family, visited the post office three or four times every week. If the court should be of opinion that, under these circumstances, the plaintiff is entitled to recover, then judgment to be entered in his favour for $120; otherwise, judgment to be entered for defendants. The court entered judgment for the plaintiff. Whereupon the defendants sued out this writ, and assigned the entering of said judgment for error here.
38 Pa. 164Vastine's Appeal (1861)
Appeal from the Common Pleas of Schuylkill county. This was an appeal by Lewis Yastine, from the decree of the court below, reversing the report of the auditor appointed by the court to distribute the proceeds of the sheriff’s sale of the personal property in and about a certain spike or nail forge of Nathan L. and Thomas J. Attwood. The contest was between the execution-creditors and certain mechanics and labourers employed by the Messrs. Attwood at this forge, who claimed a preference by virtue of the 3d section of the Act of April 2d, 1849, entitled “ An Act for the protection of miners, mechanics and labourers.” The facts of the case were not disputed. The auditor, under the authority of Wood’s Appeal, 6 Casey 274, rejected the claims of the mechanics and labourers, and distributed the mon.ey to the execution-creditor. Exceptions were filed to this report, and on argument, the court below reversed the decision of the auditor, and decreed that the miners, mechanics, and labourers be paid their respective amounts, and that the surplus be paid to the execution-creditors. The case was then removed into this court, where the decree of the court, as above stated, was assigned for error.
38 Pa. 166Wynn v. Story (1861)
This was an amicable action between Jane E. Story, Caroline Story, Joseph Story, and Malinda Story, plaintiffs, and Isaac Wynn, defendant; in which the following case was stated for the opinion of the court:— “ It is hereby agreed that an amicable action in covenant be entered in the Common Pleas of Chester county, in the above form, and that the following statement of facts for the opinion of the court, be considered in the nature of a special verdict, and subject to a writ…
38 Pa. 169Richardson v. Young (1861)
This was a foreign attachment by John Gr. Richardson and Joseph Richardson, trading as Richardson Brother & Co., against Stephen Young Smith, C. Cox, and Horatio Stevens, in which Stephen Baldwin & Co. were summoned as garnishees.
38 Pa. 176Delaware Insurance v. Winter, Latimer & Co. (1861)
This was an action of covenant, brought by Winter, Latimer & Co. against the Delaware Mutual Safety Insurance Company. The case was this: On the 7th of May 1851, the defendants had insured for the plaintiffs $2500 on the schooner Orb, valued at $5500, and $5000 on a cargo valued at $17,000, on a voyage from Baltimore to Portland, Oregon.
38 Pa. 190Strouse's v. Becker (1861)
An attachment execution issued against Edward Becker, at the suit of Emanuel Strouse, executor of Joseph Strouse, under which the Lycoming Mutual Insurance Company were summoned as garnishees. To interrogatories filed in the usual form, the garnishees admitted an indebtedness to defendant of $137.
38 Pa. 194Peters v. Florence (1861)
Certificate from Nisi Prius. This was an action of ejectment, brought March 1st 1859, by Benjamin Peters, Sarah Peters, Matilda Carothers, Joseph A. Maybin, and Daniel Oldenbergh, heirs at law of Frances Eliza Peters, against Thomas B. Florence, tenant, Anna M. Lewis, Margaretta Lewis, Richard Wistar, Jr., W. Lewis Wistar, Rachel Wistar, Fannie Scott, late Wistar, and Sarah Hopkinson, late Wistar, heirs of Wharton Lewis, deceased, for a house and lot in Third street, on the corner of Springer Lane, between Lombard and South streets, in the city of Philadelphia. On the 12th of April 1805, the premises were purchased, with the consent of her husband, by Mrs. Frances E. Cuthbert, under whom the plaintiffs claimed as heirs at law. September 19th 1811, James L. Cuthbert, and his wife, the said Mrs. Cuthbert, joined in giving a bond and a mortgage upon these premises, to her mother, Mrs. Lawerswyler, for $3697.71. Mrs. Cuthbert survived Mr. Cuthbert, and married a second husband, Wharton Lewis, under whom the defendants claimed as heirs at law. On the 3d of August 1847, Mrs. F. E. Lewis, in virtue of a powei’ contained in a settlement made in trust for her by her father, made her will, which purported to give all her property to her husband, Wharton Lewis, whom she also made the executor of her will. She died on the 31st of August 1848. Acting as her executor, Wharton Lewis paid the said mortgage, and entered satisfaction on the record May 12th 1849. His account, filed in 'the register’s office, September 18th 1849, acknowledged a balance of personalty of f!12,751.13, which he received as sole legatee under her will. By his death, August 31st 1857, the estate for life in the premises by the courtesy determined, and the property devolved upon the heirs of Mr. Lewis. On the trial of the cause at Nisi Prius, February 9th 1860, C. J. Lowrie charged the jury that the plaintiffs were entitled to recover; “ but if they (the jury) think that the payment by Wharton Lewis of the mortgage, was made by mistake, on the supposition that he was the owner of the lot; or, that as executor of his deceased wife, he was bound to pay it, then their verdict shall be with the condition that execution shall not issue until the plaintiffs shall have paid to E. Wain, the administrator of the said Wharton Lewis, the amount which would be due on the said mortgage, if the same had been' assigned to him, and subject to the opinion of the court on the point reserved, to wit: can we in this action allow the mistake to be corrected by a conditional verdict ?” February 27th 1860, the court directed judgment to be entered for the defendants on the point reserved. The plaintiffs thereupon requested a certificate to the court in banc, assigning said charge and ruling as error. And also, that the judge at Nisi Prius erred in giving judgment on the point reserved, to wit, that the mistake could be corrected by a conditional verdict, and in not charging that the plaintiffs were entitled to recover absolutely, without any condition.
38 Pa. 200Stallman's Appeal (1861)
Appeal from the Common Pleas of Philadelphia county. . This was an appeal by Stallman and others, “ Trustees for the sale of Harmony School-House,” under the Real Estate Act of 1853. The case was this: On the 12th March 1794, a lot of ground on Chestnut Hill, near the dividing line of Springfield township, Montgomery county, was conveyed by Wigand Miller and Ann Miller to certain persons, in trust, “ for the use of the neighbourhood in general for an English Protestant school, and for no other use or uses whatsoever,” for the consideration of £5 12s. Qd. . On the 8th February 1806, an adjoining lot was conveyed to the same persons on the same trust, for the consideration of ¿640. A school-house was erected on the property by the joint and equal contributions of the residents of Chestnut Hill and Springfield township, and a school was kept up in it for many years. In 1857, the school having been discontinued, the property was sold under the Real Estate Act of 1853, and the trustees filed their account in the Common Pleas, charging themselves with the proceeds of sale. Two parties claimed the fund, viz. : The Directors of the Public Schools of Springfield township, Montgomery county, claimed one-half of the fund upon the ground that the school-house and premises were located centrally in regard to that township and Germantown township,'and that the contributions of the neighbourhood, with which the schoolhouse was erected, were equally furnished by the people of the said adjoining townships, and that since the erection of the school-house, the school was used by an equal proportion of scholars residing respectively in said townships. It was admitted that the school-house itself was of little or no value, but the land had increased in value, and was the real source of the fund. The accountants, viz., the trustees themselves, claimed, 1st, the whole fund upon the ground that the trust was an existing trust, and that the fund could be employed, and ought to be appropriated to educational or like purposes, as near to the object of said trust as practicable; and 2d, that if the school directors of Springfield township were held to be entitled to the moiety of the said fund, then that the remaining moiety of said fund should be held and appropriated by the trustees to and for like purposes of education. The account was referred to an auditor, who distributed one half to Springfield township, and affirmed the claim of the trustees as to the other half.- Exceptions were filed, and the court awarded the fund, one-half to the directors of the public schools of Springfield township, and the other half to the city of Philadelphia, to be applied to the expense of education. From this decree the trustees have appealed to the Supreme Court.
38 Pa. 203Woelpper v. City of Philadelphia (1861)
This was an action on the case brought to recover back certain premiums paid in the year 1835, by the plaintiff to the city, for the right to the occupancy of certain market stalls, in the market west of Broad street.
38 Pa. 206Shuster v. Commonwealth (1861)
Jacob Shuster was indicted for the forgery of a bank note, and on his trial claimed the right to challenge twenty jurors peremptorily, which the court below refused to allow. On conviction, the case was removed into this court, where the decision of the court on this point was inter alia assigned for error by the prisoner.
38 Pa. 207Wenrich & Co. v. Heffner (1861)
This was an action of assumpsit brought by William Wenrich and Henry Pfeiffer, trading as Wenrich & Co., against Samuel Heffner, to March Term 1853.
38 Pa. 210Shelly's Appeal (1861)
Appeal by Francis Shelly from the decree of the Common Pleas of Bucks county, distributing the money arising from the sale of the real estate of Aaron F. Shelly. Francis Shelly held a judgment against Aaron F. Shelly for $3500, which was a lien on a house and two lots of land, belonging to Aaron, in Milford township. Subsequently John Sheetz obtained a judgment against Aaron F. Shelly for $1380, which bound the same property. On this last judgment an execution was taken out, and the real estate sold for $3050, the whole of which was claimed by Francis Shelly on account of his judgment. The sheriff claimed to deduct $63.37 as his costs on the writs of execution, and refused to pay more than the balance, after deducting this sum. It was received by Mr. Shelly under protest, who ruled the $63.37 into court for distribution. The court, without delivering any opinion, decreed the money to be paid, first to the costs of the sheriff on the sale proceedings, and the balance if any to Francis Shelly on his judgment; from which decree this appeal was taken.
38 Pa. 211Owens v. Salter (1861)
This was a seire facias, which issued October 15th 1850, sur mortgage dated November 22d 1844, on a lot of ground in Potts-ville, to secure the payment of $200, in instalments of $100 each, on the first of December 1845 and 1846, and was sued out to enforce the payment of the last instalment, with interest.
38 Pa. 214Williamson v. Fox (1861)
This was an action of assumpsit, brought March 1st 1859, by James Eox against Thomas Williamson and Elias A. Hunsicker, trading as Williamson, Hunsicker & Co., to which defendants appeared by different counsel. March 12th 1859, a copy of plaintiff’s original entries was filed, and on the 19th of same month Hunsicker filed an affidavit of defence, which is not given in the paper-books.
38 Pa. 217Norcross v. Benton (1861)
There was a foreign attachment in case sued out by John B. Benton and Thomas G. Benton, trading as Benton & Brothers, against Samuel S. Simmons and James McClees, trading as Simmons & McClees, in which, among others, John F. Norcross and John A. J. Sheets, trading as Norcross & Sheets, were summoned as garnishees of defendants.
38 Pa. 220Mahler's Appeal (1861)
Appeal from the Common Pleas of Montgomery county. This was an appeal by Charles Mahler, Peter Beirel, and John Beck, Trustees of the Pocahontas Tribe, No. 6, I. 0. of B. M., from the decree of the court, confirming the report of the auditor appoiuted to distribute the proceeds of the sale of the real estate of Jacob Siegler, made on a vend, ex., at their suit against William Siegler, Jacob Siegler, and Eliza Brock. The property was purchased by Henry Davis for $1500, who claimed as a lien-creditor having the first judgment on record against Jacob F. Siegler. The sheriff returned him as a lien-creditor, under the Act of Assembly relative to purchases by such creditors; to which other lien-creditors of Jacob Siegler excepted, alleging that there was no consideration for the Davis judgment, and that it was not the first lien, nor entitled to the proceeds of sale, on the ground that it was not a lien on the property of Jacob Siegler which was sold, but was held against one Jacob F. Siegler. Testimony was taken before the auditor, which showed that the person whose property was sold under this writ,, signed his name sometimes Jacob and sometimes Jacob F. Siegler. The auditor, Charles Hunsicker, Esq., for reasons given in his report, distributed the money in court to Davis, which distribution was excepted to, but was confirmed by the court (Smyser, J.). From this decree Mahler et al. appealed to this court, assigning for error the confirmation of the report.
38 Pa. 222Lewis v. Nenzel (1861)
Error, to the District Court of Philadelphia. This was an action of ejectment, brought July 11th 1859, by Anna Maria Lewis against Frederick Nenzel, Jr., for a lot of ground, with the buildings and improvements thereon erected, situated on the west side of Third street, between Poplar and Culvert streets, Philadelphia.
38 Pa. 225Cassey v. Smith (1861)
Construction of Will. — Testamentary Trust limited by the terms of the Devise to the life of the Trustee. A testator who died in 1848, had devised to each of his five children a house and lot, and gave to another, born about the date of the will, a legacy of $3000, and appointed his widow trustee during her natural life, to collect the rents, issues, and profits of the rest, residue, and remainder of his real estate, as also of the property devised to his children before they came of age, and apply the same to the payment of interest of encumbrances on every part of his real estate, support the widow during life, maintain and educate the children during their minority, and apply the residue, if any, to paying the principal of the said encumbrances. The widow acted as trustee until 1850, when she married and removed from the state. Another trustee was appointed in her stead by the Orphans’ Court in 1851. In 1856 the widow of testator died, whereupon one of the children brought suit against the new trustee for his share of the income of the property which accrued after her death. Held, 1. That the trust created by the will terminated at the death of the widow; of testator. 2. That the will contemplated a division of the property among the devisees at her death, at which time each devisee was to become the exclusive owner of the property given to him or her under it, and that consequently the plaintiff was entitled to no part of the income arising from the property given to the children who were minors when that event occurred.
38 Pa. 231Dubois's Appeal (1861)
This was an appeal by John L. Dubois, for himself and as administrator of Samuel M. Dubois, deceased, from the decree of the court below, distributing the proceeds of the sale of the real estate of Harper Hellerman and Sarah Ann Hellerman his wife, which was sold on a judgment obtained on a mortgage at the suit of Joseph Beans, assignee of Edward Rohrer.
38 Pa. 237Hill v. Milligan (1861)
Might of Plaintiff to remit part of Verdict found on sci. fa. sur Mechanic’s Lien. Where a jury find that certain items of material for a building were furnished under one entire contract, the court may permit the plaintiff to deduct from the verdict the amount of certain items, whose dates in the claim do not correspond with their dates in his books of original entries.
38 Pa. 239Peters's Appeal (1861)
Appeal from the Orphans’ Court of Delaware county. This was an appeal by Mary D. Peters, administratrix of James S. Peters, deceased, and of James S. Peters, Jr., from the decree of the court confirming the report of the auditor appointed to settle the account of said administratrix. Mary D. Peters, who was administratrix of the estate of her husband, James S. Peters, filed her account, in which, among other items, she took credit for $300, the value of a horse which was upon the farm of deceased, and had been appraised at $300, but which was claimed by his son, James S. Peters, Jr., who was living with his father at the time of his death. Objection being made by some of the children, the administratrix, with their consent, agreed with James to submit the question of ownership to Mr. Lewis, her counsel, who, on hearing a number of witnesses, decided that the horse belonged to James. The horse was accordingly delivered to James, and credit asked by the administratrix for the appraised value. Exceptions were filed to this item of the account, and an auditor appointed, who rejected the credit on the ground that four of the children of Mr. Peters had not joined in assenting to the reference. To his report the testimony bearing upon the question of ownership was appended. Exceptions were filed to this report by Mrs. Peters, alleging error in charging her with the value of the horse, in deciding that the question of ownership was not finally decided by Mr. Lewis, and in deciding the question of fact as to the ownership of the horse. The Orphans’ Court (Haines, J.) overruled the exceptions and confirmed the report. Whereupon the case was removed into this court by appeal, where the decree of the court dismissing the exceptions and confirming the report was assigned for error.
38 Pa. 241Boyd's Appeal (1861)
Appeal from the Common Pleas of Philadelphia county. This was an appeal by David Boyd, Jr., as administrator of the estate of Harvey J. Smith, from the order and decree of the Court of Common Pleas, vacating and annulling the decree of divorce granted in the case of Harvey J. Smith v. Mary C. Smith, as also from the decrees directing the payment of counsel fees and allowance for the support of Mary C. Smith and child, by the said administrator, and confirming the decrees of the register of wills, by which the letters of administration granted to the appellant were annulled, and letters granted to said Mary. The ease was this. On the 18th of August 1857, Harvey J. Smith filed his libel, praying for a divorce a vinculo from his wife, Mary C. Smith, on the ground of wilful and malicious desertion. A subpoena was issued, and returned N. P. I. An alias subpoena was then issued, which was also returned N. P. I. On the 21st of December 1857, an order of publication was issued, returnable to March Term, which was returned “ Published in Leg. Int.” Interrogatories in the usual form were then filed, depositions taken, and a divorce as prayed for decreed,May 15th 1858, a copy of which was sent to Mrs. Smith, who was then with' her father in Georgetown, Ky. In August 1858, Mr. Smith was taken sick, removed to Georgetown, and remained at his father’s house until February 22d 1859, when he died. , On the 5th of 'March 1859^ Mrs. Smith presented her petition to the Common Pleas of Philadelphia, setting forth her marriagé to Mr. H. J. Smith, in December 1852, in Georgetown, Ky., their removal to Philadelphia, their residence there until August 2d 1855, at which time, with her husband’s consent, and by his direction, she returned to visit her father’s family and friends; that her husband procured her tickets, and paid her fare out, sending her in charge of Mr. Ringo’ and wife; that she had no idea of his desire to be separated from her until it was communicated to her by letters from him, August 29th 1855 ; that she refused to consent, and so informed him by letter, but that he persisted, and procured a divorce without any information or notice of the institution of legal proceedings, until the certificate of divorce was transmitted to her; denying the desertion, charging that her husband sent her away for the purpose of obtaining the divorce, and praying the court to vacate and annul the decree, &c., &c. On filing this-petition, a rule was granted, and notice given by publication in Philadelphia and Georgetown, Ky. Depositions were taken, and on the hearing, the court made absolute the rule to vacate the decree of divorce, and set the decree aside, which was followed by decrees for alimony, counsel fees, and for confirming the decree of the register and the Register’s Court above mentioned. The case was then removed into this court by appeal, where the decrees of the Common Pleas in the premises were assigned for error.
38 Pa. 246Boyd's Appeal (1861)
This was an appeal by David Boyd, Jr., administrator, &c., of Harvey J. Smith, deceased, from the order and decree of the Register’s Court, made December 16th 1859, annulling and vacating letters granted to the appellant, and granting letters to Mary C. Smith. Harvey J. Smith died February 22d 1859, having been divorced from his wife, Mary C. Smith, May 15th 1858.
38 Pa. 247City of Philadelphia v. Dickson (1861)
Errur tc the District Court of Philadelphia. This was an action of debt brought May 21st 1859, by James Dickson against the City of Philadelphia, for an award of a jury to assess the damages which'the plaintiff would sustain by reason of the opening of Poplar street through his grounds. The plaintiff in his declaration averred that the defendants “entered upon and took possession of Poplar street,” wherever the same passed through a certain lot belonging to the plaintiff, and “ did open the same for public use.” Under the provisions of the Act of April 21st 1858, the city had passed an ordinance for the opening of this and certain other streets, and, as required by the act, gave notice to the plaintiff that at the expiration of three months from the date of said notice, the councils would order Poplar street to be opened from Ridge Avenue to Nineteenth street, which included land belonging to the plaintiff. Under this notice, as authorized by the Act of Assembly, the plaintiff filed his petition in the Quarter Sessions for a jury to assess his damages, who were appointed, and in due time met and awarded to plaintiff the sum of $2198.22. The act further provided that if the award be not paid within one year, the party injured may sue the city for the recovery thereof. On the trial the plaintiff gave in evidence the ordinance directing the commissioner of highways to notify the landowners of the intention of the city authorities to open this and other streets, and the notice served on him in pursuance thereof, but there was no evidence that councils had ordered the street to be opened, or that it had actually been opened. The defendants requested the court below to charge, 1st. That as councils had not, by ordinance, ordered the street to be opened which runs through the plaintiff’s ground, he cannot recover; 2d. That as the street has not been actually opened through the plaintiff’s ground, he cannot recover — which was declined. A verdict and judgment was then entered for plaintiff for $2439.40, whereupon the defendants sued out this writ, and assigned for error here that the court below erred in not charging as requested by the defendants.
38 Pa. 250Simpson v. Pennsylvania Fire Insurance (1861)
This was an action of assumpsit, brought January 20th 1859, by Hood Simpson against The Pennsylvania Fire Insurance Company, to recover the amount insured on the buildings, stock, and machinery of plaintiff, by defendants’ policy No. 13,714, dated December 27th 1852. The declaration was in the usual form on the policy and endorsements, setting forth the conditions of insurance at length, to which the defendants pleaded the general issue.
38 Pa. 257Collyer v. Collyer (1861)
In Equity. — This was a proceeding in equity by Robert Coll-yer, against Perry McNiell and George Collyer. The parties were partners for the purpose of fulfilling a contract which George Collyer had made with the Blue Ridge Railroad Company, for cutting a tunnel through the Blue Ridge, in Pickens District, South Carolina.
38 Pa. 259Carlile's Appeal (1861)
This was an appeal by Hudson Carlile and John W. Moore, executors of the last will and testament of David Carlile, from the decree of the Orphans’ Court, confirming the report of the auditor appointed to audit, settle, and adjust their account. By the auditor’s report, the following were the material facts in the case:— .
38 Pa. 265Logue v. Commonwealth (1861)
The defendant was jointly indicted with one Ira Davis, in the Oyer and Terminer of Clarion county, for the murder of Jared Lewis, but was tried separately. He had robbed the house of Thomas Stewart, and had absconded. On the information of Mr. Stewart, a warrant was placed in the hands of constable Cartwright for his arrest. Cartwright wrote a deputation on the writ, and gave it to Jared Lewis, a private citizen, to execute, for which service Stewart was to pay him.
38 Pa. 270Horton v. Miller (1861)
This was an action of debt, brought November 25th 1858, by John Miller against Roger H. F. Horton and Henry Heil.
38 Pa. 273Bartolett v. Achey (1861)
This was an action of debt, brought originally before a justice of the peace by Joseph Achey against Abraham Bartolett, to recover the penalty imposed by the Act of Assembly for taking illegal fees, and which came into the Common Pleas by appeal. The material facts of the case were these: Bartolett was a justice of the peace, before whom two suits were brought, August 28th 1858, against Achey, by William Becker.
38 Pa. 277Rhoads v. Gordon (1861)
Error to tbe Common Pleas of Delaware county. This was a feigned issue under the Sheriff’s Interpleader Act, wherein Jane T. Rhoads was plaintiff and James Gordon defendant. Gordon, who was a judgment-creditor of Andrew Rhoads, the husband of Jane, sued out an execution and levied on the farm-stock and produce of a farm occupied by Rhoads and wife. Mrs. Rhoads claimed the property levied on, and the provisions of the Sheriff’s Interpleader Act having been complied with and an issue properly framed, the cause was tried at June Term 1859. The farm was part of a larger tract of land of which Issachar Edwards died seised in 1844, who left at his death two children, viz. Joseph, and Jane, the wife of Andrew Rhoads. Under proceedings in partition, the whole farm was adjudged to Joseph Edwards, who, on the 11th of May 1855, conveyed 58 acres of it, with a dwelling-house and barn, to his sister Mrs. Rhoads, for the consideration of $5820. It did not appear from the evidence that this conveyance was in settlement of the estate of Issachar Edwards, nor was there any evidence in regard to the consideration other than that mentioned in the deed, nor that Mrs. Rhoads was the owner of any money in her own right. Mrs. Rhoads managed, the farm herself, as her husband was a mechanic and was frequently from home. He owned property in Philadelphia, and it- was proved by one who acted as agent for both husband and wife, that he kept their accounts separate, settled with each separately, and never paid to one any of the income or proceeds of the property of the other. Nor did it appear that the husband was insolvent; on the contrary, there was proof that he was the owner of several dwelling-houses in Philadelphia, in which county the judgment held by Gordon had been originally entered. The court, after stating the preliminary facts, charged the jury as follows :— “ Whether the property levied on by the sheriff as the property of Andrew Rhoads, is in truth and in fact the property of Jane T. Rhoads or not, this is the issue you are trying, and this is the question you will have to determine. You will see at once, that, as Andrew Rhoads and his wife Jane T. Rhoads lived together in the same house and on the same real estate, the ownership of the personal property would of course be presumed to be in the husband and not in the wife. This is not only a legitimate presumption, but it is a fair and reasonable presumption; for if a claim by the wife on the goods and effects so situated was sufficient to take them out of the hands of the sheriff, without proper proof, no creditor of the husband could ever be secure of his debt. To avoid a condition so open to fraud, the Supreme Court have declared that ‘ to bring the property claimed by a married woman, under the protection of the Act of the 11th day of April 1848, it is necessary that her ownership should be proved, by identifying it as property which she owned before her marriage — or if purchased afterwards, that it was paid for with her separate funds.’ They have further declared that ‘ in the absence of clear and satisfactory proof that property purchased by the wife after marriage, was paid out of her' own separate funds, the presumption is that it was paid for by means furnished by the husband.’ Such is the law of the land, and it is binding upon courts and juries. Indeed any other principle would involve great uncertainty as to the ownership of property, and must lead to fraud in the concealment and possession of chattels, injurious to the sound policy of social intercourse. Satisfied of the justice of these views, I feel myself bound to say, as I am requested by the defendant, that the husband is presumed to be the owner of all the personal property possessed by the family — that evidence that the plaintiff purchased any of the articles or property levied on in this case, .amounts to nothing unless it be accompanied by clear and full proof that she paid for such articles with her own separate funds — in the absence of such proof, the presumption with regard to all such articles is a violent one, that the husband furnishes the means of payment, and the jury are bound so to find. That with regard to such of the articles levied on as are the proceeds of the farm on which the plaintiff and her husband reside, the plaintiff, in order to establish her title to them so as to entitle her to a verdict, must show beyond a reasonable doubt that the farm belonged to her, and that the purchase-money or consideration paid for it was not furnished by her husband. On failure to prove either of these points, or in the absence of any proof on the subject, the jury should find all such articles to be the property of the husband; that all property levied on in this case, or such proportion of it as is the fruit or result of the labour, energy, or industry of either the plaintiff or her husband, is the property of the husband, and liable for the payment of his debts — that the plaintiff establish her title to each of the articles levied on according to the rules hereinbefore stated, and the jury is bound to find in ■favour of the defendant as to all articles to which the plaintiff does not give full and most satisfactory proof of title in herself. These principles are all true, and they should govern the finding of the jury. There is evidence in the case that the plaintiff purchased articles and that she paid for articles; but there is no evidence to show that these articles were paid for out of her own funds, and the presumption is that they were paid for by means furnished by the husband. In the whole case no evidence has been produced by the plaintiff to show by clear and satisfactory proof that the property levied on or any part thereof was the property of Jane T- Bhoads, and under these circumstances I feel myself constrained to instruct you that the plaintiff has not made out her case, and that your verdict should be for the defendant. If I am wrong in this view, I am pleased to know that the case can be carried to a superior court, and any errors of judgment in the court below can be corrected. It is your duty to find for the defendant.” Under this charge there was a verdict and judgment in favour of defendant in the issue. Whereupon the plaintiff sued out this writ, assigning here as cause for reversing the judgment, that the court erred in instructing the jury that the plaintiff had not made out her case with respect to any of the articles levied upon. The case was submitted to the consideration of this court on the paper-books, and without any oral argument.
38 Pa. 281Buckwalter v. Black Rock Bridge Company (1861)
Error to the Common Pleas of Montgomery county. This writ was sued out by David R. Buckwalter, who complained of the action of the court below by which a fi. fa., sur judgment on an award of referees in his favour, against the Black Rock Bridge Company, was stayed and set aside, the judgment on the award opened, and the award set aside and stricken from the record. The case was this:— David R. Buckwalter is the owner and occupier of a ferry across the Schuylkill river, at a point called Black Rock, where the canal and tow-path change from the Chester county side of the river to the Montgomery county side. This ferry had been maintained and used at that point for a period of thirty years and upwards, in the same way and for the same purposes as now. The travel across it consisted almost entirely of the horse and mule teams used for hauling boats on the canal and dams of the Schuylkill Navigation Company. When the plaintiff purchased it, some seven or eight years ago, he became the owner of the land on each side of the river at that point. On the 8th of April 1859, the Black Rock Bridge Company were chartered by the legislature, and in the summer of 1859 located the site of their bridge about 500 feet below the ferry, and proceeded to erect it as speedily as possible. It was completed some time in October last, and since that time has been used to accommodate the travel on the canal, as well as the other travel at that point. The 13th section of the said charter provides as follows:— “ That the said bridge shall not be located within the distance of a half mile from a point at which David R. Buckwalter now owns and maintains a ferry, unless the said company first obtain the assent of said Buckwalter, or his heirs and assigns, thereto, and in case the assent of the said Buckwalter cannot be so obtained, then in that event the said company shall choose one disinterested person, and the said David R. Buckwalter a second, and the persons thus chosen shall choose a third disinterested person, who, after being sworn, according to law, shall go upon the premises and view and receive such other testimony as they may desire, and assess the damages, if any, which the' said David R. Buckwalter may and shall sustain by reason of the erection of the said bridge, and the valuation, set and agreed upon by the said referees, shall be final and conclusive, and be paid by the said company before the erection of said bridge, and the said assessment may be entered as a judgment against said company in the Court of Common Pleas of either county in which said bridge is located, and be of the same effect in law as any other judgment obtained by legal process.” The company having, located the bridge below and within a half a mile of the said ferry, without first having obtained the assent of David R. Buckwalter thereto; on the 5th day of September 1859, the said Buckwalter and the bridge company, by a written agreement, under their hands and seals, among other things therein contained, agreed as follows: “ that it is hereby left and referred to the final arbitrament, award, and determination of the said Joseph J. Lewis, Abraham B. Longaker, and William Henry, or any two of them agreeing, whether the said David R. Buckwalter has sustained, or may or shall sustain, any damages by reason of the erection of said bridge, and if they find that he has sustained or may or shall sustain any damages by reason thereof, then to value and assess the said damages, and make their award in writing of and concerning the premises within a'reasonable time after they shall have made their arbitrament and award of and concerning the same.” The referees met upon the 5th day of September 1859, went upon the ground, viewed the premises, heard the allegations of the parties, and received their proofs by the examination of such witnesses as they desired to submit, as to the damages and matters at variance. On the 9th day of September aforesaid,' two of the referees, Abraham B. Longaker and William Henry, made an award in favour of David R. Buckwalter, assessing damages to him in the amount of $1200. Joseph Lewis, the other referee, dissented from said award. The award was as in the following words:— “And now, to wit, September 9th, A. d. 1859, we, the said referees, having met pursuant to adjournment, and after mature deliberation had in the premises, are of opinion that the ferry of the said David R. Buckwalter will become depreciated by reason of the erection of the said bridge, as proposed, within the distance of a half mile of said ferry, by' the diversion of the travel thereupon; and we, the said A. B. Longaker and William Henry, two of the said referees, agreeing, do accordingly assess the damages which the said David R. Buckwalter has and will sustain, by reason of the erection of the said bridge and diversion aforesaid, at the sum of twelve hundred dollars ($1200), and we do therefore award said sum of twelve hundred dollars ($1200) in favour of said David R. Buckwalter, and against the said Black Rock Bridge Company.” To this the other referee filed his protest in the form of a minority report, as follows:— “ Whereas, the claim of the said David R. Buckwalter, made on the hearing before the said referees, was for the loss which will, probably, be sustained by the diversion of the travel from the said ferry, and the consequent loss of profits occasioned thereby; and whereas, I deem such diversion and loss not to be such an injury as is contemplated by the said Act of Assembly, and as one required to be compensated in damages, I award and determine that the said David R. Buckwalter is not entitled to recover any damages against the said Black Rock Bridge Company.” The award was filed September 17th 1859, in the Common Pleas of Montgomery county, and same day judgment entered in favour of Buckwalter against the bridge company in the sum of $1200. Upon this judgment a writ of fieri facias was issued to November Term, a. d. 1859, No. 101. On the 23d of November 1859, the Black Rock Bridge Company, pending the said writ, presented a petition to the Court of Common Pleas, praying the court that said writ may be stayed and set aside, and that the judgment may be opened and the award set aside and be stricken from the record. Whereupon the court granted a rule to show cause why the prayer of the petitioner should not be granted. Returnable January 9th 1860. The following were the reasons offered by defendant for setting aside the award:— 1st. The Act of Assembly, under which the said referees were authorized to assess damages, does not provide for the assessment of such damages as those mentioned in the award. 2d. The referees unlawfully assessed damages for the depreciation in the value of the ferry of said David R. Buckwalter, by reason of the erection of the bridge of said company within a half mile of said ferry, by the diversion of the travel therefrom —the said Buckwalter having no license or grant of any exclusive right of ferriage. 3d. The said David R. Buckwalter has no lawful claim for any diversion of the travel, or any consequent loss of profits which the erection of the said bridge may cause, as such diversion and loss are not such an injury as is contemplated by the Act of Assembly in this case made and provided, as one for which damages are to be awarded to the said David R. Buck-waiter. 4th. The said David R. Buckwalter has not, as yet, sustained any damages whatsoever which can be lawfully assessed against the said company, inasmuch as the bridge of said company has not, as yet, been erected. On the return of the rule and argument thereon, the court below (Smyser, J.) made the rule absolute in all its parts. Whereupon this writ of error was taken by plaintiff, who assigned as cause for reversal the following matters, viz.:— 1. The court had no jurisdiction over the subject-matter, and erred in entertaining the application of the defendant below to stay and set aside the fi. fa., and in actually staying and setting aside the same. 2. The court erred in opening the judgment entered against the defendants below upon the award filed. 3. The court erred in setting aside and striking off from the record the said award.
38 Pa. 289Brown's Estate (1861)
These were appeals by Thomas Neill and The Pennsylvania Company for Insurance on Lives, &c., from the decree of the Orphans’ Court, on the accounts of George B. Reese, administrator with the will annexed of Susan B. Brown, and as executor of Mrs. Christiana Finney.
38 Pa. 294Horton's Appeal (1861)
This was a proceeding in the Orphans’ Court by B. W. Horton, one of the executors of Jesse Horton, for the review of a decree of the court confirming the distribution made by the auditor on the account of said executors. The account of the executors was referred to an auditor, who reported for distribution a balance of $2024.25, of which the widow was entitled to one-third. This report was confirmed May 27th 1856.
38 Pa. 296Barbier v. Smith (1861)
Error to the Common Pleas of Philadelphia. This was a scire facias on an apportioned mechanic’s lien, sued out by John Smith against George H. Barbier and George Bartolett, owners, and Elizabeth Leeds, executrix of Ezra B. Leeds, contractor. . The claim, which was in proper form and filed in due time, was for lime and other materials used in the buildings by Leeds the contractor, amounting to $93.21. The bill attached to the claim was against “ the estate of Ezra B. Leeds, for lime, &c., furnished to Bartolett’s new stores adjoining railroad depot in Germantown.” The lien claim was filed against “ George H. Barbier and George -Bartolett, owners or reputed owners, and Elizabeth Leeds, executrix of Ezra B. Leeds, deceased, who was the contractor,” describing the buildings and curtilage. The defendants pleaded separately non assumpsit, payment, and set-off, with leave to add, alter, and amend, and to give the special matters in evidence, to which plaintiff replied non solvit, no set-off, and on the issue thus made up the case was tried. On the trial, the plaintiff’s book of original entries was offered in evidence, in which the charges were made against “ George Barbier, for new building next to depot on Main street.”The evidence was objected to because of the variance between it and the lien charges; but the court overruled the objection, and admitted the evidence under exception. The plaintiff then' proved the delivery of the materials to the buildings; that Leeds was the contractor; that Barbier had ordered some of the materials ; that Bartolett had bought an interest in the buildings, and that Bartolett, in settling with Leeds, had retained $82.98, to pay Smith’s bill. The defendants submitted the following points, on which the court were requested to charge the jury:— 1. The plaintiff cannot recover, as the materials are charged to George H. Barbier, and not to the contractor alleged in the lien. 2. The plaintiff cannot recover, as the apportionment of the claim is arbitrary and mere guess-work, there being no statement or explanation by which the quantity of materials furnished each building can be ascertained. 3. The plaintiff cannot recover, as by the lien and the plan accompanying the same, two of the buildings not contiguous are described as one building. The learned judge declined to affirm either of these points, whereupon there was a verdict and judgment in favour of plaintiff for $33.92. The defendants then sued out this writ, and assigned as cause for reversal the following matters:— 1. The learned court below erred in admitting in evidence, to sustain the lien claim, the plaintiff’s book of original entries, which charged the materials furnished, and work done, to George H. Barbier; and the lien claim sets forth and avers that the estate of Ezra B. Leeds was the contractor. 2. The party charged in the lien claim, and the party charged in the plaintiff’s book, put in evidence, are different parties. 3. There is a fatal variance between the lien claim and the evidence admitted by the court to sustain it. 4. The court below erred in refusing to affirm the first, second, and third points, presented by defendants below.
38 Pa. 298Butchers' Beneficial Ass'n (1861)
 Charter of Incorporation refused. The Supreme Court will not approve a charter for the Incorporation of any association, where the articles contain an indefinite statement of the offences that may result in expulsion: as that auy member may be expelled who commits any misdemeanour or any other act that may prove injurious to his character or standing.
38 Pa. 299Beneficial Ass'n of Brotherly Unity (1861)
 Charter of Incorporation refused. The Supreme Court will not approve a charter of incorporation for a beneficial, society which*gives a majority of the association power to expel any member “ guilty of any offence against the law.’1 The expression is too general for the purposes of such an association.
38 Pa. 300Gaynor v. Wilde (1861)
This was an action of trespass, quare clausum fregit, brought by James Gaynor et al. against Henry Wilde, Jeremiah Boone, Dr. William Wetherill, and Jacob Gordon. The plaintiffs were owners of certain lands in- Schuylkill county, who, finding defendants in possession, brought ejectment against them, recovered, and were placed in possession by the sheriff, under an habere facias, about four years after the commencement of the suit.
38 Pa. 302Paul v. Stackhouse (1861)
Consideration of Contract of Suretyship. — Moral Obligation. — Contract to pay the Debt of another, within Statute of Frauds. 1. One loaned money to another upon the promised security of a third person, taking a note from the borrower, payable in one year, which, three days after the year expired, was signed by the surety. In an action by the lender against the surety, it was Held, that, though a moral obligation alone was insufficient to support the contract of suretyship, yet the money having been loaned at the request of the surety, the consideration for his promise, though past, was continuing and valuable, and that his signature to the note was a completion and full execution of the promise upon that consideration. 2. The signature, connected with the original transaction, constituted one entire contract, evidenced by the note in writing, which was sufficient to take it out of the Statute of Frauds of 1855.
38 Pa. 307William H. Love & Son v. Brown Brothers & Co. (1861)
Error, to the District Court of Philadelphia. This was an action of assumpsit, brought May 30th 1860, by Brown Brothers & Co. against William H. Love and Alfred H. Love, trading as W. H. Love & Son.
38 Pa. 309Miller v. Gorman (1861)
In Equity. This was a proceeding in equity, commenced November 14th 1858, by Charles Miller, Morris Patterson, and James Gowan, against Darby Gorman, supervisor, and Patrick Preston, collector of road taxes in New Castle township, Schuylkill county. The matters complained of, the answer, and the reasons given by the court below for dismissing the complainants’ bill, are fully stated in the opinion of this court.
38 Pa. 314Mütter's Estate (1861)
This was an appeal by Mrs. Mary W. A. Miitter, from the decree of the Orphans’ Court, confirming the report of the auditor appointed to audit her account as executrix of Thomas D. Miitter, deceased, under whose will she claimed as legatee. Thomas D. Miitter died in 1859, leaving a will dated June 15th 1858, which was duly proved April 14th 1859, and in and by which his widow Mary W. A. Miitter was appointed executrix.
38 Pa. 322Kitchen's Estate (1861)
Appeal from the Orphans’ Court of Philadelphia county. These wore appeals by Maria M. Woodward, late Maria M. Kitchen, in her own right and as guardian of the minor children of-Andrew B. Kitchen, deceased, and by Andrew C. Craig, from a decree of the Orphans’ Court, confirming the report of the auditor appointed to audit, settle, and adjust the account of said Andrew 0. Craig, acting trustee under the will of said Andrew B. Kitchen. The case was this:— Andrew B. Kitchen, by his will dated September 1st 1848, after giving an annuity to his aunt Sarah Boyd, and certain specific articles to his wife Maria M. Kitchen, devised to his said wife, one third part of the residue of his estate, and the remaining two-thirds of said residue, he devised to his four children, William Francis, Emma Matilda, Charles Henry, and Ella Kitchen, the income thereof to be applied to the support and education of said children, and their respective parts or shares of the principal to be paid by the executors, to the sons when they should respectively attain twenty-four years of age, and to the daughters when they should respectively attain the age of twenty years. The testator appointed his wife guardian of the persons and estates of his children, and also appointed her with Andrew 0. Craig and Samuel R. Warrington his executors. On the 18th day of March 1859, Maria M. Woodward (late Kitchen) presented her petition to the Orphans’ Court for the city and county of Philadelphia, setting forth (inter alia) that Emma Matilda Kitchen, one of the daughters of said testator, would attain the age of twenty years, on the 14th day of May 1859; that the executors were about to pay over to the petitioner, as guardian of Emma Matilda, a portion of her share of her father’s estate, praying the said court to make an order authorizing her to invest as guardian of said Emma Matilda, the sum of $8750 in the purchase of a messuage and lot on Arch street west of Twentieth street, in said city, subject to the payment of the sum of $2000, being the balance of a mortgage-debt originally of $5000, the deed therefor to be made to said guardian. The court granted the prayer of said petitioner. During the month of March 1859, Andrew O. Craig paid over to the said guardian on account of the share of the said Emma Matilda Kitchen, the sum of $10,250, with a portion of which the said premises were purchased, as a residence for the said ward, who was then on the eve of marriage with Mr. Joseph M. Davis. 1 By the deed dated March 19th 1859, Samuel C. Spackman and wife granted said premises to the said “Maria Matilda Woodward (late Kitchen), testamentary guardian of her daughter Emma Matilda Kitchen, under the will of Andrew B. Kitchen, deceased. Consideration $8750, under and subject nevertheless, to the payment of a certain mortgage debt or sum of $2000 with interest, being the balance unpaid of a certain mortgage-debt of $5000, secured hereon by a certain indenture of mortgage, given and. executed by the said Samuel 0. Spademan to Charles Harlan, dated the 28th day of June, A. d. 1858, and recorded in Mortgage Book A. D. B., No. 10, page 180.” Which mortgage was then held by The Western Saving Fund. On the 19th day of April 1859, Emma Matilda Kitchen intermarried with Joseph M. Davis, and on the 14th day of May 1859, attained the age of twenty years. On the 26th day of January 1860, she died without issue, leaving her said husband to survive her, to whom, on the 2d day of January 1860, letters of administration on her estate were granted. The account of Mr. Craig having been filed, it was referred to an auditor. It related only to the income of the estate held in trust under the will of Mr. Andrew B. Kitchen. There was invested on mortgage, on account of the four children, the sum of $81,000. After deducting the expenses of the audit, there remained $80,688, which, divided by four, gave to each child $20,172. The shares of Charles Henry and Ella Kitchen (minors) were, by the report of the auditor, to remain in the hands of the accountant, as trustees under the will, and the share of William Francis was with interest distributed to him without objection; but it was contended before the auditor, on behalf of the accountant and the guardian, that Mrs. Davis had incurred a personal responsibility for the payment of the mortgage of $2000, by accepting the deed for the Arch street property, under and subject to its payment, and that therefore the mortgage should be paid out of the distributive share to which Joseph M. Davis was entitled as her administrator. This the auditor declined doing, but stated the distribution of the share of Emma Matilda Davis, thus:— Her share of the estate,.....$20,172.00 From which deduct amount paid to her guardian (March 1859), as above stated, . . . ■ 10,250.00 Balance, . 9,922.00 Interest from her death to date of report, . 138.00 Awarded to Joseph M. Davis, ' 10,060.00 To this report exceptions were filed by Mrs. Woodward and by Mr. Craig, which were dismissed by the Orphans’ Court and the report of the auditor confirmed. Appeals were then entered by Mrs. Woodward and Mr. Craig, and the case removed into this court, where the following matters were assigned for error 1. The court erred in dismissing the exception filed by the appellant to the auditor’s report. 2. The court erred in confirming the report of the auditor. 3. The court below erred in affirming so much of the report of the auditor as directs that the mortgage on the real estate of Mrs. Davis should not be paid out of her personal estate in the hands of the executors and trustees of the estate of Andrew B. Kitchen, deceased, before the same is paid and transferred to the administrator of her estate.
38 Pa. 330Craig's Appeal (1861)
Appeal from the Orphans’ Court oí-Philadelphia county.
38 Pa. 331McCaffrey's Estate (1861)
This was an appeal by Byron Woodward, from the decree of the Register’s Court affirming the decision of the register of wills, in revoking the grant of letters of administration on the estate of Thomas McCaffrey to the appellant, and dismissing his appeal from the register to the Register’s Court. Thomas McCaffrey died in 1832, leaving a widow and two children (minors), having made a will in which he appointed Michael Clark and Daniel Hughes executors.
38 Pa. 334Michener v. Cavender (1861)
This was a scire facias sur mortgage by Thomas S. Cavender against George W. Michener and Eveline E. Michener his wife, dated September 30th 1853, and duly recorded, to secure the payment of $3200. The property covered by the mortgage was the separate property of Mrs. Eveline E. Michener, which she held under deeds from James Alcorn and wife and Edward W. Clements and wife, neither of which were recorded at the date of the mortgage.
38 Pa. 339City of Philadelphia v. Greble (1861)
Error to the District Court of Philadelphia. This was a rule entered in the court below, at the instance of D. Greble, to show cause why a lien should not be stricken off which had been filed against his lot, on the north-east corner of Twenty-first and Sansom streets, by the City of Philadelphia, for work done and materials furnished by the city, to wit, for one hundred and eighty-eight feet of culvert in Sansom street, in front of said lot, at seventy-five cents per foot, and amounting to one hundred and forty-one dollars. A similar rule was entered as to a lien filed for the same cause against a lot of S. K. Hoxie. On hearing, the rules were made absolute by the court, on the ground that no lien could be filed in the old city of Philadelphia for building culverts. The cases were then removed into this court by the city, where the decree of the court below striking off the liens was assigned for error.
38 Pa. 340Noble v. Warren (1861)
, ' • This was an action of covenant, brought by Elisha C. Warren and Parker H. Warren, doing business as E. C. & P. H. Warren, against William S. Noble and Alfred L. Hough, who survived Cyrus C. Davis, late partners under the firm name of C. 0.
38 Pa. 344Blanche v. Bradford (1861)
This was an action of replevin brought by Elthea Blanche, wife of Louis Blanche, against Vincent L. Bradford, under the following circumstances :— Louis Blanche leased a house in Sansom street, in Philadelphia, of Vincent L. Bradford, at an annual rental of $425, which he afterwards occupied with his family.
38 Pa. 346Davis v. Moss (1861)
The Law of Fixtures, as between Landlord and Tenant. — Forfeiture for breach of condition. — Entry for condition brolcen, when necessary. 38 346 1. A tenant may remove from demised premises, fixtures erected by him 29SC__55fchereon for the benefit of his trade or business, if the removal be made during the term; after the term they become part of the realty, and are not sever-able. 2. Where by the terms of a lease it was provided, that if the lessee should cease mining operations for twelve consecutive months, it should become void, the entry of the lessees from time to time, to clean and grease an engine which had been erected on the premises and used in mining, after the suspension of operations for twelve months, was not a continuance of mining operations, within the terms of the lease, and would not prevent a forfeiture. 3. In Pennsylvania the right of the landlord to enter for condition broken, depends upon the terms of the lease, unless there be evidence to affect the landlord with a waiver of the breach, like the receipt of rent, or other equally unequivocal act.
38 Pa. 355Serrill v. City of Philadelphia (1861)
Error to the District Court of Philadelphia. This was an amicable action between the City of Philadelphia as plaintiff and Pearson Serrill defendant, in which the following case was stated for the opinion of the court:— It is agreed that this action be entered with like effect as if a lien for the taxes hereinafter mentioned had been duly filed and advertised, and sei. fa. thereon duly issued, returnable to the first Monday of March 1860, regularly made known to said defendant by the sheriff, and so returned. And it is agreed, that Pearson Serrill, defendant above named, is the owner of a tract of land situated in the Twenty-fourth Ward of the city of Philadelphia, which is assessed for the year 1859 at the sum of $10,300. The whole of the said tract is returned by the assessor as “rural.” A portion of the said land is “upland,” and the remainder is “marsh or meadow land,” and is subject to a tax for keeping up and in repair the banks on the said lands. The said “upland” and “ meadow” are divided in the assessment as follows, viz.:— The upland of said tract is assessed at . $2250 The meadow or marsh tract is assessed at . 8050 Total assessment.....$10,300 The rate of city tax for the year 1859 was $1.75 in the one hundred dollars. The sum of $49.72 was duly tendered on the 14th day of January 1860, by the said defendant to the receiver of taxes in payment of the amount of defendant’s taxes for the year 1859 on said tract, on the assessment or valuation of $10,300 aforesaid. 1. If the court shall be of opinion that the statement as follows, viz.: Amount of tax for 1859 as stated and tendered by defendant, viz:— $2250 assessed as upland at $1.75 city rate . . $39.37 Less £ for rural ....... 13.12 $26.25 $8050 assessed as meadow at $1.75 . $140.87 Off J for rural ..... 46.96 93.91 Off | of $140.89 for banks . . . . 70.44 23.47 Total..... $49.72 represents the amount lawfully due by the defendant for the city taxes on said tract for the year 1859, then judgment to be entered for plaintiff for the sum of $49.75 without costs. 2. If the court shall be of opinion that the rate of tax to be charged on the property assessed as “meadow or marsh” $8050, should be one-half the rural rate, then judgment to be entered for plaintiff for $82.15, with interest from January 1st 1860. 3. But if the court shall be of opinion that the bills or statements hereto annexed, marked “ A” and “ B,” to wit: represent the amount lawfully due by the defendant for the taxes aforesaid, then judgment to be entered for plaintiff for the sum of $101.89 with interest from January 1st 1860, and the commissions thereon for collection, awith right of writ of error to either party. The learned judge of the District Court, to whom the case was submitted, delivered the following opinion and judgment:— “ The assessor returned the whole of the defendant’s land as “ rural,” and assessed as its value $10,300. By the 42d section of the. Act of 21st of April 1855, the rate at which this was to be assessed could not exceed two-thirds of the rate fixed as the general rate for 1859. This was $1.75 on every one hundred dollars. “By the Act of 16th of April 1858, it is enacted that all meadow or marsh lands situate in the Twenty-Fourth Ward of the city of Philadelphia, and assessed as marsh or meadow land, and paying a special tax for keeping up and in repair the banks of such meadow land, shall be liable to pay half only ‘ of the tax levied on real estate in said city for city purposes.’ “ Of the $10,300 returned by the assessors as the proper value of the whole of the plaintiff’s land, the assessors have returned also that $8050 is the value of the marsh or meadow land, and that the remainder, $2250, was not meadow or marsh land. “ It seems abundantly plain, therefore, that plaintiff, under the Act of 1858, should be taxed one-half of the tax assessed on real estate in the city for city purposes. “One-half of the rate on $8050 is , . . $70.43 “ And two-thirds on the remainder of ‘ rural’ lands, viz., on $2250, is......26.25 “ Making together ...... 96.6$ “ Suit has been brought to recover the tax due. “ This subjects the defendant to 5 per cent, penalty 4.83 “ And to the expenses of advertising ... 37 $101.88 “ Interest from January 1st 1860, and commissions. “ Judgment upon the case stated is to be entered for $101.89, with interest from January 1st 1860, and commissions.” The defendant thereupon sued out this writ, assigning for error here that the court below erred in entering the above judgment for plaintiff on the case stated.
38 Pa. 359City of Philadelphia v. Gratz Land Co. (1861)
On the 23d of March 1856, the city of Philadelphia filed a claim against the Gratz Land Company for $526.50, for. “removing a nuisance from a lot of ground at the south-west corner of Mary and Master… Held: that the lien was defective, in not stating with sufficient precision when the work was done, and struck off the lien. The plaintiff then sued out this writ, and assigned for error that the court erred in striking off the lien.
38 Pa. 361North Branch Passenger Railway Co. v. City Passenger Railway Co. (1861)
In Equity. — This was aa appeal by the North Branch Passenger Railway Company, to the court in banc, from the decree of the judge at Nisi Prius, dismissing the bill of complainants.
38 Pa. 368Road in Bensalem Township (1861)
Certiorari to the Quarter Sessions of Bucks county. Under the special road law passed April 23d 1857, for Bucks county, which authorizes the viewers to procure releases from the landowners, or in case this cannot be done, to assess the damages and make report to the court for their approval, &c., a proceeding was had under which a road was laid out in Bensalem township, on land of Mrs. Bilbrough. The jury were appointed at February Sessions 1859, and to April Sessions they made a report, laying out the road as prayed for and assessing Mrs. Bilbrough’s damages at $175. At September Sessions a jury of -review was appointed on petition of Mrs. Bilbrough. In their report they laid out the same road, but assessed her damages at $500, and directed it to be paid by the county. The court approved and confirmed the report nisi, but directed the damages to be paid by the petitioners. On the 18th of March 1860, the following exceptions were filed by one of the petitioners : 1. The court erred in directing the damages to be paid by the petitioners; and 2. The road is of sufficient public necessity to require the court to order the damages to be paid by the county. On argument, the court made the following decree: — • “ The exceptions to the order of court as to the payment of the damages overruled, and the court, having before them both the report of viewers and reviewers, adopt the report of viewers, and order the road to be opened in conformity therewith of the width of 33 feet, so soon as satisfactory evidence shall be exhibited, agreeably to the rules of court, that the damages assessed by the said viewers have been paid by the petitioners, who are hereby ordered and decreed to pay the same.” Mrs. Bilbrough, who was not present at this argument, nor represented by counsel, afterwards, to wit, on the 11th of September 1860, presented a petition to the court, in which, after reciting the fact of the laying out of the road in question, and the existence of another road running through her land from the Erankford and Bristol turnpike to the Delaware river, dividing it into narrow strips and occasioning great expense for fencing, which the sum reported by the reviewers would not repay; that the new road has been laid out for the accommodation of Joseph Ashton and Lemuel H. Davis, who, having erected a wharf on the Delaware, desired this road as accessory to it, and had offered her $500 if' she made no opposition to the road; that the exceptions which had been filed, argued, and disposed of, involved no question as to the correctness of the damages, but only as to who should pay them; that she was no party to ■ the questions raised by them, and had no notice of their being filed, or of the taking of depositions; that' the highest damages given were not high enough to compensate her; and that the court had no power to adopt that report which deprived her of the damages awarded by the reviewers; she prayed the court to rescind the order approving of the report of the viewers.. Same day the court made the following decree:— “ The court refuse to open their order and decree of 13th of June 1860, or to grant any rule in the premises on the within petition, on the ground that the application comes too latp: the petitioner having had her day in court, when, with proper diligence and vigilance on her part, the questions she now raises might have been presented.” On the next day, to wit, September 12th 1860, the court made the following final decree : “ The report of viewers in said road case, which was filed on the 4th day of May, A. D. 1859, having been adopted by the court on the 13th of June 1860, and, on application now made for an order to open said road, it.being' admitted in open court that the sum of one hundred and seventy-five dollars, the damages assessed to the said Margaret S. Bilbrough by the said viewers, had been tendered to her and refused, and permission being asked on the part of said petitioners who are ordered to pay said damages to pay the same into court, the said permission is now granted. And it further appearing that the said sum of money has been paid into court, in pursuance of said permission, to be drawn out by the said Margaret S. Bilbrough in satisfaction and payment of her said damages, and that Joseph Ashton, to whom a like sum of one hundred and seventy-five dollars was assessed by said viewers, appeared in open court and waived his right to the same, the court order and direct that the clerk of said court shall issue an order to the supervisors of roads and highways of said township of Bensalem to open said road.” The money paid into court was not taken out by Mrs. Bilbrough, who sued out this certiorari, and assigned for error the following:— That the court erred in confirming the report of the jury of view, and in setting aside the report of reviewers.
38 Pa. 373Dehaven's Appeal (1861)
Sheriff’s Deed.— Where to he acknowledged. A sheriff's deed for land sold under process issued out of the Court of Common Pleas, but acknowledged in the District Court, is void, and passes no title to the purchaser.
38 Pa. 376Heebner v. Worrall (1861)
This was an action on the case, brought November 17th 1858, by William Worrall and J. Hunter Worrall against Christopher Heebner, Sarah Heebner, D. Morgan Casselberry and Ann his wife, and Hannah Heebner, to recover damages for alleged injuries done to the reversion of the mill of plaintiffs by backwater caused by the erection of a dam in Perkiomen creek, on the premises of defendants.
38 Pa. 380Solliday v. Johnson (1861)
 Trespass maintained for talcing Stone collected from the bed of a River. In an action for the value of a lot of paving-stones belonging to plaintiff, •which had been carried away by the defendant, it is not a valid defence that they are the property of the state, because they were gathered out of the river Delaware.
38 Pa. 382Griffin v. Rogers (1861)
This was an attachment-execution issued March 20th 1858, by Mrs. Griffin, as administratrix of William Griffin, on a judgment against the Bank of Pennsylvania for $12,287.58, in which Charles H. Rogers, John B. Austin, and Adolph E. Borie, were summoned as garnishees. Interrogatories in the usual form were filed and answered by the garnishees, who also pleaded nulla bona.
38 Pa. 385Beekman's Appeal (1861)
Distribution of Proceeds of Sheriff’s Sale among Lien- Creditors.— What Liens are discharged by Judicial Sale. 1. A judgment is a lien according to the title which the defendant holds; if he has no title when it is entered, it is no lien. 2. Although all liens, whether by judgment, entry of test. fi. fa., or by levy on the title sold, which existed prior to a sheriff's sale, appear to be discharged by it; this appearance may be changed by showing fraud in the sale. 3. In distributing the proceeds of a sheriff's sale, the title to the land may be so far examined as to ascertain what interest was sold, and what judgments were liens upon it, so as to be discharged by the sale; but not to investigate alleged fraud in the title. This can only be tried in an action.
38 Pa. 389Westcott v. Tyson (1861)
 Rights and Duties of Liquidating Partners. A member of an insolvent firm, while acting as agent for the creditors, in the settlement of the partnership affairs, assisted another party to purchase frota the creditors their claims, together with their rights to certain pledged assets of the firm. Held, that the purchase did not enure to the benefit of the firm, and that the transaction did not come within the operation of the general rule of equity that a trustee cannot buy trust property for himself, or act as agent in buying it for another person.
38 Pa. 396White v. Welsh (1861)
Right of Vendor to retain Goods on Insolvency of Vendee. — Effect of on Contract. — ■Delivery, actual and constructive. — Stoppage in Transitu. — Right of Possession hy Vendee, under Contract for Sale. — Custom of Merchants.— Charge for Storage what evidence of. — Insurance, effect of on Delivery. — Delivery of Samples, effect of. 1. A vendor of goods, so long as they are in his possession, or in the custody of his agents, and while they are in transit from him to the vendee, has the right to refuse or countermand the final delivery, if the vendee be in failing circumstances. 2. The rejection of evidence as to constructive delivery and the contract of sale, is unimportant where the goods retained had not been removed after the sale, but continued in the stores and custody of the vendor, until, the insolvency of the vendees. On their failure the vendors had the right of retention for unpaid purchase-money, where no rights of third persons had intervened.
38 Pa. 422Hotz's Estate (1861)
This was an appeal by Charlotte B. Hervy, late Charlotte B. Hotz, from the decree of the Orphans’ Court dismissing her petition praying for a decree of the Orphans’ Court, directing the executors of the last will and testament of Peter Hotz, to pay over to her an annuity of $300 in semi-annual payments, which had been left to her under the said will.
38 Pa. 426Moyer v. Thomas (1861)
Error to the Common Pleas of Bchuylldll county. This was an action of ejectment, brought by Septimus Thomas against William Minnich, for the undivided half of a messuage and tract of land in North Manheim township, Schuylkill county, containing two hundred and twenty-six acres and forty-two perches, in which the following case was stated for the opinion of the court:— The fee simple of the tract of land in dispute was vested in Benjamin Pott, who, by his deed and his wife’s, bearing date the 9th day of October, A. d. 1829, which is made part of the case stated, conveyed a tract of land containing two hundred and twenty-six acres and one hundred and twelve perches, to Jacob Minnich in trust. And Jacob Minnich and Mary his wife, by their deed dated the 30th day of October, A. D. 1832, granted and conveyed the same tract of land to Joshua W. Comley and to his heirs and assigns, in trust. Jacob and Mary Minnich had four children, viz., William, Jeremiah, Maria, and Catharine. Jeremiah and Catharine died in the lifetime of their father and mother, unmarried and without issue. Maria, one of the children, was married on the 2d of March, A. D. 1847, to Septimus Thomas, the above-stated plaintiff, and died on the 23d day of June, A. D. 1853, leaving issue a daughter, Maria, who died on the 2d day of August, A. D. 1853. Mary Minnich, the mother of Maria, who was intermarried with Septimus Thomas, the above-stated plaintiff, survived her daughter, and her daughter’s issue, and died on the 7th day of April, A. d. 1854, leaving her son William Minnich surviving her in possession of the land in dispute, and the defendant in the above-stated action. Jacob Minnich, the husband of Mary Minnich, and the father of William and Maria, the surviving children, died in the month of September, A. d. 1854. The question for the opinion of the court is whether the plaintiff is entitled to recover any, and, if any, what part of the tract of land in dispute. If the court shall be of opinion that the plaintiff is entitled to recover any part of the premises, then judgment to be entered for him, for whatever he may be entitled to recover, with costs. If the opinion of the court shall be that the plaintiff is not entitled to any interest in the premises, then judgment to be entered for the defendant with costs. The one-half of the land in controversy was claimed by the plaintiff, as heir to his daughter Maria, while the defendant claimed the whole of it, thus: one-fourth by the original limitation in the deed from Benjamin Pott; one-fourth as heir to his brother Jeremiah and his sister Catharine; and one-half as the heir of his sister Maria, the deceased wife of Septimus Thomas, who, he averred, owned one-fourth by the above-mentioned limitation, and one-fourth as heir to her brother Jeremiah and her sister Catharine. On argument, the court below (Hegins, J.), on September 22d 1856, directed the entry of judgment in favour of the plaintiff for the undivided half of all the property described in the writ, with six cents damages and six cents costs, under which judgment possession was delivered by the sheriff, and the costs paid by defendant. After the judgment of the court below, the defendant died, and his widow (who was married to John T. Moyer), with his children, suggested his death on the record, and were substituted in his stead. This writ of error was then sued out in the name of John T. Moyer and Kate his wife, late Kate Minnich, who was the widow of the late William Minnich, deceased, and Mary Ellen Minnich, William F. Minnich, and John Minnich, minor children and heirs-at-law of William Minnich, deceased, who sue by John T. Moyer, their next friend, as plaintiffs in error, and Septimus Thomas defendant in error. The error assigned here was the entering of judgment for the plaintiff and not for the defendant, upon the facts contained in the case stated.
38 Pa. 430Walker v. Dunshee (1861)
Certificate from Nisi Prius. In Equity. This was an appeal by Elizabeth Y. Walker from the decree of the court at Nisi Prius, dismissing her bill of complaint against Sophia V. Dunshee et ál. The bill was for the partition of the real estate late of Amor Marshall, deceased; and, with the answer, disclosed in substance the following facts:— Amor Marshall, of Philadelphia, died sometime in 1816, seised of the following real estate, viz.:— No. 1. A store and lot No. 20 Bank street. No. 2. A messuage and lot on Gaskill street. No. 3. A messuage and lot on Arch street. No. 4. A messuage and lot on Quarry street. No. 5. A messuage and lot on Walnut street. At his death he left a widow, named Mary, and three children, viz., Frances Matilda, Ann Elizabeth, and Joseph Yorkson. By his will, which was dated in 1813, he made the following disposition of his real estate:— Gaskill street property (No. 2) to his said wife, Mary Marshall, in fee. Walnut street property (No. 5) to his “ son Joseph Y. Marshall, and the heirs of his body lawfully to be begotten, and for default of such issue then I give and devise the same unto my two daughters, Ann Elizabeth Marshall and Frances Matilda Marshall, and the heirs of their respective bodies lawfully to be begotten, to have, hold, and enjoy the rents, issues, and profits thereof in equal portions, and in default of issue in either of them, then to such survivor, and the heirs of her body lawfully to be begotten, and on default of such issue, remainder to my right heirs and the right heirs of my wife as tenants in common for ever.” Quarry street property (No. 4) to his daughter, Ann E., with remainder to her brother and sister, and remainder over, in precisely the same words, mutatis mutandis, as the devise of the Walnut street property. Arch street property (No. 3) to his daughter, Francis Matilda, with remainder to her brother and sister, and remainder over, in precisely the same words, mutatis mutandis, as the devises of the Quarry and Walnut street properties. His wife was to have dower in all his/real estate. As to the Bank street property (No. 1), he died intestate, there being no devise or provision in Ms will respecting it, or in wliicli it could be included in any general terms. Frances Matilda Marshall died in the lifetime of her mother, intestate, unmarried and without issue. Mary Marshall, the widow, died April 1854, leaving a will, dated February 8th 1826, duly proved October 6th 1859, whereby she devised the said Gaskill street property (No. 2) to said three children in fee, subject to the payment of half the rents to her daughter, Frances Matilda, for life; and if said Frances M. died without issue, then to the other two children as tenants in common in fee. Ann Elizabeth Marshall died in March 1859, intestate, unmarried and without issue. Joseph Y. Marshall died April 7th 1859, intestate, unmarried and without issue, leaving no brothers or sisters, nephews or nieces; but leaving two aunts, and the children of another deceased aunt, on his mother’s side (see A., B., and 0. in the following table); and the issue of three uncles and of one aunt on his father’s side (see D., E., F., and G. in the following table). A fourth uncle and two aunts on his father’s side, died prior to the death of Mrs. Mary Marshall, the widow of Amor (see H., 1., and K. in the following table); and a fifth uncle on his father’s side has not been heard from for twelve years, and is supposed to be dead (see L. in the following table). These four, viz. H., 1., K., and L., died intestate, unmarried and without issue. HEIRS ON MOTHER’S SIDE. A. ELIZABETH Y. WALKER (Complainant). B. SOPHIA V. DUNSHEE. C. Prances Patchen (died before Joseph Y. Marshall). 1. George M. Patchen. 2. Sarah Ann Martin (married Mulford Martin). 3. HENRY PATOHEN (died before Joseph Y. Marshall). а. George Patchen, б. Ed. F. Patchen, c. Samuel S. W. Patchen, d. Joseph Patchen, I Minors. John F. Belsterling, [ Guardian ad litem. HEIRS ON FATHER’S SIDE. D. Thomas Marshall (deceased Nov. 1831). Sarah Marshall, widow. 1. Thomas Marshall. 1 2. MARTHA TRIMMER (deceased January 8th 1860, since Joseph Y. Marshall), leaving no husband, but children): a. Thomas Stewart. b. Sarah E. P. Grattan, wife of Edward N. Grattan. e. Alfred Trimmer. (James 0. Finney, Guardian.) 3. Sarah Buck. 4. Emma Durney. E. John Marshall (deceased June 1838). 1. William Marshall. 5 2. Emma Marshall. 6 3. Samuel Marshall. 7 4. John Marshall. 8 E. Joseph Marshall (died before Joseph Y. Marshall). 1. Ann Marshall. 9 G. Ann M. Entriken (deceased April 1831). 1. William M. Entriken. 2. Elizabeth E. Entriken. 3. Emma Entriken. 4. Mart Ann Johnson (married Benjamin Johnson). 10 11 12 13 5. THOMAS ENTRIKEN (died in the lifetime of his mother a. Thomas Entriken. V 5. Emma Entriken,) -,T. c. Esther Entriken, * Minorsd. John Entriken, John E. Belsterling, Guardian ad litem. 14 H. David Marshall (died in 1825). X. Mary Hurley (died February 1832). K. Hannah Marshall (died March 1845). L. William Marshall. (Not heard from for twelve years, supposed to be dead.) The complainant, Elizabeth Y. "Walker, (A.), one of the maternal aunts of Joseph Y. Marshall, filed this bill against the said remaining next of kin of Joseph Y. to compel a partition of said real estate, and the allotment of her share in severalty. She claimed that she is entitled to one-third of the Gaskill street property (No. 2), “ as one of the three sisters of Mary Marshall, deceased, mother of Joseph Y. Marshall;” and to one-sixth of the Walnut (No. 5), Bank (No. 1), Arch (No. 3), and Quarry street (No. 4) properties, on the ground “ that, by the death of Joseph Y. Marshall, Ann E. Marshall, and Frances M. Marshall, each without heirs of his or her body lawfully begotten, by the terms of the will of Amor Marshall the said properties passed to the heirs at law of Amor Marshall and Mary Marshall his wife, as tenants in common, and that the legal mode of distribution between the heirs of the said Amor and the said Mary* is per stirpes, and not per capita.” Those of the defendants who are of kin to Joseph Y. Marshall on the mother’s side, to wit, Sophia V. Dunshee (B.), and the issue of Frances Patchen (0.), have allowed the bill to be taken pro confesso, in default of appearance. The remaining defendants, who are of kin to Joseph Y. Marshall on the father’s side, averred and claimed in their answers, that all five of the said properties ultimately vested in Joseph Y. Marshall in fee; and that upon his death, intestate, unmarried and without issue, they descended to and vested in his next of kin on the father’s side, to the exclusion of those on his mother’s side. ■ The issue of Thomas Marshall (D.) and Joseph Marshall (F.) averred and claimed that the twelve next of kin on the father’s side who are in equal degree (D. 1, 3, and 4, E. 1, 2, 3, and 4, F. 1, and G. 1, 2, 3, and 4), are each entitled to one-thirteenth of said five properties; and that the remaining one-thirteenth should be divided equally among the children of Martha Trimmer (D. 2), who has died since Joseph Y. Marshall. The remaining next of kin on the father’s side, averred a.nd claimed that the said twelve next of kin on the father’s side, who are in equal degree, above specified, were each entitled to one-fourteenth ; the children of Martha Trimmer as aboye, to one-fourteenth; and the children of Thomas Entriken, deceased (G. 5) to the remaining one-fourteenth of said five properties, to be equally divided among them, All the defendants, next of kin on the father’s side, averred and claimed that as to the Arch street (No. 3), Quarry street (No. 4), and Walnut street (No. 5) properties, if the estate therein which was vested in said Joseph Y. Marshall at and immediately before his death, was not a fee simple, and if at his death it vested in the right heirs of Amor Marshall and the right heirs of Mary Marshall as tenants in common in fee, then and. in such case the legal mode of distribution is per capita and not per stirpes, and that in such case the complainant (A.), Sophia Y. Dunshee (B.), the issue of Frances Patchen (C.), the issue of Thomas (D.), the issue of John (E.), the issue of Joseph Marshall (F.), and of Ann M. Entriken (G.), respectively, are each entitled to one-seventh of said three properties. The case was heard upon bill and answers before Mr. Justice Read at Nisi Prius, May 5th 1860, and after argument the bill was dismissed; whereupon the complainant entered this appeal, and assigned for error, that the court erred in dismissing the complainant’s bill and refusing the decree prayed for.
38 Pa. 439Kleinert v. Ehlers (1861)
Legal Presumption of Legitimacy, how rehutted. — Record of Decree of Divorce, what evidence of. — Effect of, as Proof of Legitimacy. 1. Where, in a feigned issue to determine the legitimacy of a son and daughter, it was alleged that the mother was pregnant with the son, when married to the putative father, and there was contradictory evidence as to the time when the son was born, and as to the pregnancy of the mother, which-the court submitted to the jury, with instructions that the law presumed a child born after marriage, whether begotten before or after, to be the child of the husband; that where the parents might have had sexual intercourse,' access was to be presumed, and that these legal presumptions must be rebutted by evidence plainly showing non-access by the husband, so that he could not,, in the order of nature, be the father of the child: jBeZd,.that it was not error thus to submit the case to the jury, there being no conclusive evidence of non-access to repel the legal presumptions arising from the birth of the son after marriage. 2. In the same issue, as to the legitimacy of the daughter, where, nearly two years before her birth, the mother had left her husband (who resided in Pottsville), and gone to Philadelphia to reside, in which city she was frequently visited by her husband, who, however, after the birth of the daughter, procured, in Schuylkill county, a divorce from his wife, on the ground of desertion, without appearance for or notice to her, it was not error in the court to submit to the jury all the evidence of access on the part of the husband, with the record of divorce, and to decline to charge them that the divorce was a judicial determination as to separation for two years, which, with evidence of their separate residence, rebutted the legal presumption of access. 3. The record of divorce concluded only the desertion of the wife, not the non-access of the husband: and it did not estop the children from claiming legitimacy, for, if illegitimate, they were not parties to the record, and if privies, either in blood or estate, they were legitimate.
38 Pa. 446York County Bank v. Carter (1861)
Error, to the Common Pleas of Schuylkill county. On the 81st of July 1858, the York County Bank obtained a judgment against John Carter, surviving partner of Richard Carter, late partners doing business as J. & It. Carter, for $4592.74. Kfi.fa. was issued thereon, under which the sheriff of Schuylkill county levied upon certain personal property, as the property of the late firm of J. & R. Carter. The property levied on consisted of a coal lease from Smith & Buck to John & Richard Carter, on the Greenwood tract of land near Tamaqua, which had about three years to run; a coal lease from the Little Schuylkill Navigation, Railroad, and Coal Co., to John & Richard Carter, one slope No. 4, burnt out, one frame breaker-house, two frame engine-houses, four frame miner’s houses, one and a half miles of said road more or less, thirty-five mules, three horses, one hundred and eighty-five drift cars, one frame blacksmith-shop, carpenter-shop, stone powder-house, frame office, about five tons of old iron, thirty-five sets of harness, lot of carpenter tools, a lot of blacksmith tools, screens, schutes, four wheelbarrows, three two-horse wagons, two four-horse wagons, two buggy wagons, one barrel of oil, lot of sheet iron, one bellows, lot of old car wheels, and other personal property. This property was claimed by William T. Carter, whereupon the Court of Common Pleas directed an issue, in the usual form, between William T. Carter, as plaintiff, and the York County Bank, as defendants, to try the title to the property. The material facts of the case, as disclosed by the testimony, were as follows: — • On the 1st of October, A. D. 1857, J. & R. Carter, who were largely engaged in the business of mining and selling coal, and also in the foundry and machine business, as members of the firm of Carters & Allen, and who were also owners of valuable real and personal estate, but also heavily indebted, by judgments and otherwise; by two bills of sale transferred to William T. Carter, their nephew, the coal leases and personal property embraced in the sheriff’s levy, and, on the same day, conveyed to him all their real estate in Schuylkill county and elsewhere, by deeds duly executed, acknowledged, and recorded, all which were valued in the transfers at $114,500. On the same day, and at the same time, and in consideration thereof, William T. Carter entered into an agreement with John & Richard Carter, to pay the debts of certain of their creditors, who were named, amounting to $114,500, including a debt of $12,000 alleged to be due by them to him. Under these bills of sale and deeds, William T. Carter took formal and actual possession of the mines and movable chattels, and from that time worked and managed the mines on his own account. After the purchase by William T. Carter, he proceeded to pay off the indebtedness which he had assumed, and settle with the creditors generally. The defendants, alleging that these sales and transfers were fraudulent and void in law and in fact, offered in evidence proof that the firm were at the time indebted by judgment to the amount of $181,891.68; that a house and lot in Tamaqua, conveyed by J. & R. Carter to William T. Carter, for the consideration of $8000, was worth $12,000; that another deed, conveying all their real estate in Pennsylvania, worth, by estimate, $100,000, was executed for the nominal consideration of $49,250, without any description by metes and bounds. That the property of the firm of Carters & Allen, worth $60,000, had also been transferred to W. T. Cartel}, when the indebtedness of that firm was equal to $71,000, which was afterwards arranged by a mortgage by John Carter and William T. Carter, for $58,312.16, to secure the creditors of Carters & Allen. That Richard Carter had remained in the concern as the active business man and financier until his death, and had said that this transfer was to prevent the payment of certain debts which had been contracted by one McAuley, who had been their partner in Luzerne county, but that they intended to pay their own creditors. In the course of the trial, several exceptions were taken to the admission and rejection of testimony, all which are stated at length in the specification of the errors assigned here. The following points were submitted by the plaintiff and defendant, on which the instruction of the court was requested:— Plaintiff’s points. — 1. That J. & R. Carter had the right to make a sale of property at a fair price, and arrange that the purchaser should apply the purchase-money to the payment of any of their debts they might designate. 2. That, if the jury believe that the price agreed to be paid by William T. Carter was the full value of the property at the time, and the purchase-money was intended by both seller and buyer to be applied to the payment of particular debts of J. & R. Carter, there can be no inference that such sale was intended to delay or defraud creditors whose debts were not provided for by the sale, although such sale necessarily resulted in giving the creditors whose debts were thus provided for a preference to the exclusion of creditors- not so provided for. 3. If J. & R. Carter believed the demands of the creditors of Carter, McAuley & Co., had less equity than those of their other creditors on account of their nature and origin, and that they should be postponed until the others were paid, they had a right to prefer the others, and in doing so they did no more than any honest man under such circumstances ought to have done. 4. J. & R. Carter had a right to convey their property for a fair price to their other creditors, for the very purpose of paying them, and postponing plaintiff until they were paid. Defendant’s points. — 1. If the bills of sale and conveyance by John & Richard Carter to William T. Carter were made to delay, hinder, or defraud particular creditors, though made for a valuable consideration, they are not bond fide, but void; and if such are the facts, the defendants are entitled to a verdict. 2. That, even if the jury should find from the evidence that William T. Carter agreed to assume the payment of certain debts of John & Richard Carter as the consideration of the assignment’ of their property, but that the design was to hinder or delay other creditors from the collection of their debts which were not assumed by him, the transaction is void, and the defendants would be entitled to recover. 3. That, it being an undisputed fact in the cause that John & Richard Carter were indebted in more than $130,000 on the 1st of October 1857, the date of the transfer of their property to William T. Carter, and there being no evidence that he paid any money at the time of the transfer, but only assumed to pay certain debts particularly mentioned, many of which were liens on the real estate conveyed on that day, and it being proved that there were other debts to a large amount not assumed by him, those bills of sale and the transfer and conveyances in evidence gave him no title to the property which is now the subject of controversy, and are void as against the defendant in this suit. 4. That if the jury believe the evidence of Edwin Booth, F. N. Buck, and other witnesses in the cause, that Richard Carter and William T. Carter stated that the object of these assignments was to pay certain particular creditors, and the design and intention of the transfer of their property was to prevent, hinder, or delay another class of creditors, then the assignments were void, and William T. Carter has shown no title to the property in controversy, and the verdict should be in favour of the defendants. 5. If the jury should find from the evidence that the intention of conveyances of assignments from John & Richard Carter to W. T. Carter was to hinder, delay, or defraud creditors, no debts due to him nor payment by him to the creditors of debts due by John & Richard Carter would render those assignments valid; and should the jury so find, their verdict ought to be in favour of the defendant. The court below (IIbgins, J.) answered all the points of the plaintiff in the affirmative; affirmed the first, second, and fifth points of the defendant; negatived the defendant’s third point; and, in answer to defendant’s fourth point, instructed the jury that, “if they believed, from the evidence in the ease, that the design a,nd intention of the transfer of the property by J. & R. Carter was to prevent, hinder, or delay any of their creditors,' and William T. Carter knew of such design and intention, and participated in it, the transfer would be void as to the creditors intended to be hindered and delayed in the collection of their debts, the jury should find for the defendant.” In the general charge, the court said: “ The law does not forbid, nor is the mere fact that this preference has been given, evidence of fraud, if the intention was not to hinder, delay, or defeat the creditors not preferred, although the preference may produce that result. The question is, was the transaction bond fide; was the intention honest? This you are to decide from the evidence, in doing which it is proper to take into consideration the fact that the parties were uncles and nephew; the value of the property transferred; the means and ability of the plaintiff to pa.y ; the fact that no security was required from him ; the amount and character of the debts and encumbrances; and the conduct and declarations of the parties at and since the transfer.” Under these instructions there was a verdict and judgment in favour of the plaintiff in the issue; whereupon the defendant sued out this writ, and assigned as cause for reversal here the following matters, viz.:— I. Because the court erred in their admission of the evidence as contained in the first bill of exceptions, which was as follows : Plaintiff proposes to prove by Robert Carter that upon the 1st of October, 1857, and after the execution of the bill of sale of the personal property, W. T. Carter went upon the premises in company with John Carter, one of the vendors, and then and there took formal possession of the property sold, and that John Carter then and there declared that J. & R. Carter had sold the property to W. T. Carter, and that he having delivered possession of the same, and that W. T. Carter then and there accepted such possession, and gave directions to witness and others in regard to the future management and care of the property. (The defendant’s counsel objecting to the declaration of W. T. Carter, and of John Carter, but to no other part of the offer.) II. Because the court erred in the admission of the evidence contained in the second bill of exceptions, which was as follows: “ For and in consideration of sundry conveyances to me by John & Richard Carter, and their wives, of certain real estate in the said conveyance more fully described, and in further consideration of the transfer and assignment of two coal leases from F. N. Buck, and John K. Smith respectively, to John & Richard Carter, and of two bills of sale, one of J. & R. Carter, and the other of Carters & Allen, of the personal property in the inventors attached to said bills of sale, more particularly mentioned, I have agreed and bound myself, my heirs, executor’s, and administrators, and do hereby agree and bind myself, my heirs, executors, and administrators, unto the said John & Richard Carter, and Carters & Allen, their and each of their heirs, executors, administrators, and assigns, to pay the foregoing mentioned and described debts and liabilities of the said J. & R. Carter and Carters & Allen, amounting in the whole to one hundred and fourteen thousand dollars ; witness my hand and seal, 1st of October 1857,” signed, W. T. Carter; which was objected to because, 1. It is not rebutting evidence. 2. It amounts, taken in connection with the other papers, to a voluntary assignment, and has not been recorded, and 3. .There is no evidence of its delivery; being produced by the plaintiff himself. III. Because the court below admitted the evidence contained in the third bill of exceptions, which was as follows: plaintiff offers to prove by William P. Jewel, that William T. Carter borrowed money from time to time to the amount of $6000, or thereabouts, 'for the purpose of reloaning the same to John & Richard Carter, prior to the 1st October, 1857. (The defendant’s counsel objecting to witness stating anything that was said by W. T. Carter, as to what he intended to do with the money borrowed.) IV. Because the court admitted the evidence in the 4th bill of exceptions, viz: Plaintiff offers to prove the payment of indebtedness of J. & R. Carter to N. Sturtevant & Co. V. Because the court erred in affirming the second point submitted by plaintiff’s counsel. VI. Because the court erred in affirming the 3d point, submitted by the plaintiff’s counsel. ' VII. Because the court below erred in affirming 4th point submitted by plaintiff’s counsel. VIII. Because the court erred in refusing to answer affirmatively the third point submitted by the defendant’s counsel in the affirmative. IX. Because the court below erred in their answer to the 4th point submitted by the counsel for the defendant, and in not answering the whole of it. X. Because the court below erred in that part of their general charge to the jury in which they say: This the law does not forbid, nor is the mere fact that this preference has been given evidence of fraud, if the intention was not to hinder, delay, or defeat the creditors not preferred, although the preference may produce that result.
38 Pa. 457Larkins's Appeal (1861)
Appeal from the District Court of Philadelphia. In Equity. This was an appeal, by Sara Jane Larkins, from the decree of the District Court dismissing her bill of complaint against the Cohoeksink Building Association and Henry McNally. All the material facts of the case, as disclosed by the bill, answer, and testimony, are sufficiently set forth in the opinion of this court.
38 Pa. 459Schuylkill County's Appeal (1861)
Certiorari to the Quarter Sessions of Schuylkill county. This was an appeal by the county of Schuylkill from the decree of the court below, confirming the report of viewers to assess damages. In November 1853, on the petition of citizens of Pottsville, praying for the vacating of that part of Callowhill street which extended from Coal street to Line alley, and the laying out of another street, to be called Callowhill, from said Coal street to George street, the court appointed viewers, whose report, in accordance with the prayer of the petitioners, was made March 21st, and confirmed absolutely June 19th 1854. The street was partly opened in 1854. In 1859, Mrs. Margaret A. Dornan, whose property was affected by it, presented a petition, praying for the appointment of viewers to assess damages. Six viewers were accordingly appointed, whose report, assessing her damages at $1700, was filed September 11th 1860, and confirmed nisi. In this report, after stating that they had been duly sworn or affirmed according to law, they returned that they had “ viewed the premises and road therein mentioned in the presence of Edward O’Connor and Evan J. Thomas, Esquires, two of the commissioners of said county, and the representatives of the said Margaret A. Dornan, and having heard their proofs and allegations, it was alleged by the commissioners (and admitted by the parties present) that the road had not been opened according to the draft laid out by the viewers of said street or road, but changed more at right angles through the property, in accordance with the views of the representative of the owner, and a committee of the Borough Council of Pottsville, as was admitted. And having taken into consideration the advantages and disadvantages to the said petitioner sustained, in consequence of opening said street or road, do value and adjudge the loss thereby to the within named Margaret A. Dornan, as at present located, at seventeen hundred dollars. And had the said street or road been laid out according to the draft of the viewers, more triangularly through the premises, we should have estimated the loss or damage at twenty-two hundred dollars.” To this report, the following exceptions were filed for the county of Schuylkill:— 1. The fact appears on the face of the report of the viewers, that the street as laid out, is not the street ordered to be laid out by the court, but one laid out by tbe permission of tbe petitioner. 2. Tbe Court of Quarter Sessions of Schuylkill county has no jurisdiction over tbe road or street laid out, but tbe jurisdiction is in tbe borough of Pottsville. 3. Tbe county is not liable for damages for streets laid out in tbe borough of Pottsville, on tbe 24th of October 1860. Tbe Court of Quarter Sessions (Hegins, J.) overruled tbe exceptions, and confirmed tbe report, whereupon tbe case was removed into this court by exceptants, who assigned tbe action of tbe Sessions in tbe premises for error.
38 Pa. 464Wall's Appeal (1861)
This was an appeal from the decree of the Orphans’ Court on the report of the auditor on the account of Nicholas Wall, executor, &c., of Henry A. Earrell, deceased.
38 Pa. 466McCauseland's Appeal (1861)
Appeal from the Orphans’ Court of Philadelphia. This was an appeal by Alice McCauseland, Alexander Mc-Causeland, Archibald McCauseland, and Catherine Craig, executors, &c., of Alexander McCauseland, from the decree of the Orphans’ Court, in the matter of the petition of Ann McNeran praying for a citation requiring them to file an account, &c. The petition, which was filed January 21st 1859, set forth that Malcolm McNeran died, leaving a will devising to Thomas D. Grover, Alexander McCauseland, and Robert Coburn, and the executors, &c., of the survivor; $4000 in trust, the interest whereof, or such portion as might be necessary, to be applied to the support and education of his daughter, Mary Ann, during her minoi’ity. The surplus, if any, to be invested, and upon her arriving at the age of majority, she was to receive the whole of the interest of said sum of $4000, and the surplus, if any, aforesaid in half-yearly payments, without the interference or control of her husband. The petitioner averred that she had never received any statement of the doings of said trustees, and that they have filed no account since their assumption of duties as such trustees in 1885. She further averred that Coburn was discharged from being one of said trustees, and that Grover and McCauseland have deceased. That the latter managed said estate during his lifetime, and that his executors have done so since his decease, taking the rents of the real estate, &c., and the interest accruing thereon. She therefore prayed for a citation against Alice and Archibald McCauseland and Catherine Craig, executors of said Alexander McCauseland, deceased, directing them to file an account, &c. The answer of Archibald McCauseland and Catherine Craig, filed January 25th 1859, denied that they had at any time, directly or indirectly, received any interest or rents or profits from said trust estate, or any part thereof, or that they were chargeable therewith. It also denied that respondents had ever acted in any manner as executors under said will of Alexander McCauseland, deceased, or otherwise, so as to charge them with any of the matters stated in said petition. The answer further showed that the said Alexander McCauseland died in 1839, and that his widow, the said Alice, died November 9th 1856, That before his decease the said Alexander stated and settled an account of all moneys received by him in said trust estate, and the answer averred that the lapse of time since his decease is a bar to this proceeding.- The answer further stated that for many years before, up to the time of her attaining her majority and after, the said peti-r tioner resided with said Alice McCauseland, who supported, clothed, and educated her at great expense, and at an expense exceeding the full amount of the income of said trust estate, and that said petitioner, after attaining her majority, received on her own account all the income of said trust estate. The respondents further averred that they in no wise represent the estate of said Alice McCauseland, which is alone liable to account to said petitioner,' and that for all moneys received by said Alexander McCauseland, deceased, an account was had and settled. The case was referred to A. I. Fish, Esq., as master and examiner, to inquire of the facts stated in the petition and answer, and report thereon to the court; and if an account be proper, then to state an account between the parties. The report of the master, which was filed May 18th 1860, disclosed the following facts:— That Alexander McCauseland was the only one of the trustees, under the will of Captain McNeran, who acted; and that he did so from 1834 to his death in 1839. That it appeared that the interest on the loan referred to in the will had been regularly paid in 1835 to one Hugh Murray; from January 1836 to July 1839, to Alexander McCauseland; and from January 1840 to January 1856, to Alice McCauseland, the widow of Alexander. That the petitioner claimed that respondents should account for the whole moneys received from 1834 to 1836, which the respondents resisted on the ground that Alexander McCauseland’s estate should not be held accountable for collections made by Hugh Murray. The petitioner’s claim, notwithstanding this objection, was sustained by the master. The respondents urged that Alexander McCauseland’s estate was not accountable for the collections made by his widow. That her own estate should be held responsible. This point was sustained by .the master on the principle that, so far as Alexander McCauseland was concerned, the trust, as to him, died with his death. The proofs showed that Miss McNeran had lived in Alexander McCauseland’s family for some five years after her father’s death, or when she was about eleven years of age, until the death of Alexander. That after the death of Mr. McCauseland, she still continued to live with his widow until the death of the latter. That what moneys Mrs. McCauseland received were expended in the care, tuition, and clothing of the young lady, of which no account whatever had been kept. Neither could any account be now made out, inasmuch as the parties lived together almost precisely as parent and child, and therefore made no memorandum of the trust affairs. In view of these facts, the master did not deem the case as one calling for the application of stringent rules; but the respondents having submitted an account, he proceeded to state it. The accountants admitted the receipt of $944 from July 9th 1835. To this the master added the collections made by Murray, $175, making a total of $1119 received. From this sum the respondents claimed a deduction of $717.51, which was allowed. Commissions on the $4000 loan, at 5 per cent., and on the disbursements, were claimed, the first of which was not allowed by the master, because no reinvestment was made, and because the trustees were never responsible for the loan. The master also charged the accountants with interest, because, 1. Where trustees improperly retain balances, or cause trust-money to be lost, they are chargeable. 2. Where trustees have funds, which they are bound to invest permanently, and neglect to do so, it is optional with the cestui que trust as to whether they shall be charged with interest. 3. Where trustees loan or use the funds in trade, they are chargeable with the interest and the profits. 4. Under the will, the surplus income was to be invested: this the trustee omitted to do, and he must, therefore, be charged with the interest. The master ruled that the expenses of the proceedings under the citation, in this matter, should be equally divided. The respondents excepted to this report so far as it related to the disallowance of commissions; the charge of interest and receipts from 1834 to 1836; the charge of half costs; and the not adopting the account as stated by the respondents. The Orphans’ Court, on hearing the ease, dismissed the exceptions and confirmed the report. The case was then removed into this court, where the dismissing of the exceptions and the confirmation of the report were assigned for error.
38 Pa. 471Howell v. City of Philadelphia (1861)
Liability of the City of Philadelphia for Paving.— Waiver by Plea to a scire facias. 1. Where contracts under which paving and curbing were done, for which a lien was filed, expressly stipulated that the City of Philadelphia should be under no expense for the same, except for intersections, it is not a ground for charging the city that she retained a market place in the centre of the street. 2. An objection to a lien for want of dates, may be made on demurrer, or on a motion to strike it off, but after pleading to the scire facias, that must be considered as waived.
38 Pa. 475Lyman's Administrator v. Byam (1861)
Reciprocal Rights and Duties of Administrators and Widow, under the Acts of April 14th 1851 and April 13th 1859, relative to claim for §300 worth of Real or Personal Property. 1. If a widow appropriate to her own use three hundred dollars’ worth of her deceased husband’s personal property, she cannot recover damages against his administrator for not setting apart for her property to that amount. 2. The Acts of April 14th 1851, and of April 13th 1859, contemplate administration, an election of realty or personalty, and an appraisement for the widow; and therefore, where a widow disregarded the legal mode of procedure, neither administering on her husband’s estate herself, nor causing any one else to do so, making no election under the statute, but appropriating the whole personalty to her own use without an appraisement, it was held error in the court below, in an action brought by her against the administrator, to recover damages for not setting out the three hundred dollars to which widows are entitled, to reject evidence of the value of the goods taken by her. Before recovering damages, she was bound to account for what she had previously taken. 3. The Orphans’ Court may order the sale of the real estate of a decedent, to pay debts, maintain and educate children, &c., but not for the purpose of giving a widow her statutoi’y allowance. 4. A demand by a widow upon an administrator to set apart out of her deceased husband’s real estate, enough to satisfy her claim of three hundred dollars, is in time if made before a sale of the property for the payment of debts; but a demand to sell real estate for this purpose is unauthorized by law.
38 Pa. 480Lanning v. Pawson (1861)
This was a feigned issue allowed by the court to try whether the defendant in a judgment by John E. Clark in favour of James Lanning, was dead when it was filed. The case was this:— On the 1st of December 1857, John E. Clark executed and delivered to James Lanning a judgment-note for $3000, payable on demand, waiving stay of execution from and after its maturity.
38 Pa. 487Ogden v. Grove (1861)
This was an action of trespass vi et armis, &c., brought by Henry Grove, the defendant in error, who was the plaintiff below, against David C. Ogden and Samuel Ogden, the plaintiffs in error and defendants below, for the purpose of trying the. right of the plaintiffs to use a certain alley way between two lots of ground, situate on the east side of Third street, in the city of Philadelphia, above Race street.
38 Pa. 491Huthmacher v. Harris's Administrators (1861)
This was an amicable action of trover and conversion, between Rosanna Gardner, administratrix, and Silas Sutton and Peter H. Scovill, administrators of Elisha Harris, deceased, against David M. Huthmacher, to try the title to sundry promissory notes, bank notes, gold and silver coin, two silver watches, and a pocket compass, together valued at $3754.50, which came into the custody of the defendant under the following circumstances : Elisha Harris died in July 1858.
38 Pa. 500Harvey v. Beach (1861)
This was a scire facias sur recognisance of bail, by Isaac Beach against George Harvey, brought in the Common Pleas of Tioga county, January 9th 1857. On the 17th of September 1846, Isaac Beach obtained a judgment against Jesse Locke for $91.52, before Hiram Tubbs, Esq., a justice of the peace in and for the county of Tioga, from which the defendant appealed to the Common Pleas.
38 Pa. 503Lipps v. City of Philadelphia (1861)
This was a scire facias on a lien filed February 6th 1860, by the City of Philadelphia, to the use of Daniel Stone, against a lot of ground on the east side of Second street, and the southeast side of Germantown Road, in the Sixteenth Ward, belonging to John Lipps, for forty-two feet of culvert laid in Second street, in front of said oremises, at seventy-five cents per foot, amounting to $31.50.
38 Pa. 507Wright's Appeal (1861)
This was an appeal by tbe surviving executors of Joseph Wright, deceased, from the decree of the Orphans’ Court, allowing to the Commonwealth the sum of $500 for collateral inheritance tax, being five per cent, on $10,000.
38 Pa. 512Delaware & Hudson Canal Company's Appeal (1861)
Appeal from the Common Pleas of Wayne county. This was an appeal from the decree of the Common Pleas of Wayne county, by the President and Managers of the Delaware and Hudson Canal Company, distributing the proceeds of the sheriff’s sale of the real estate of Thomas Thomas. The material facts of the case are as follows: — » Thomas Thomas, the defendant, whose lands have all been sold by the sheriff by virtue of three different sales, hereinafter mentioned, was seised of various pieces of land situate in Way-mart borough and Clinton township, Wayne county. The following judgments were the first four liens respectively upon all of said pieces of land, with amounts due on same at date of sale, viz.: — ■ 1st Lien. Lydia A. Forbes v. Thomas Thomas. 2d Lien. W. H. Dimmick v. Thomas Thomas. 3d Lien. E. Owen v. Thomas Thomas. 4th Lien. Cyprian Carr v. Thomas Thomas. No. 149, May Term 1855. Balance due, $40. No. 140, Sept. Term 1856. Balance due, $799.53. No. 133, Sept. Term 1857. Balance due, $610.08. No. 143, Dec. Term 1857. Balance due, $266.16. On the 6th day of Arigust 1857, said Thomas executed to the President, Managers, and Company of the Delaware & Hudson Canal Company a mortgage covering a part of his said real estate, to secure the payment of three judgment-notes of same date, for $2000 each, payable respectively in one, two, and three years with interest, which said mortgage was duly entered of record in Wayne county mortgage-book, December 11th 1857, whereby the above mortgage became the next lien, after aforesaid four judgments, upon the lands embraced in same. In the spring and summer of 1858, and after the entry of record of above referred to mortgage, a number of judgments were entered against said Thomas, which became liens upon all of said pieces of land, four of which it is only necessary to mention, as they alone are interested in the question: — ■ Lemuel Stone’s use v. Thomas Thomas. Same v. Thomas Thomas. George Spangenberg v. Thomas Thomas. Patrick Farley v. Thomas Thomas. No. 144, May Term 1858. Entered March 27th 1858, for $354. No. 146, May Term 1858. Entered March 27th 1858, for $135. No. 167, May Term 1858. Entered April 1st 1858, for $400. No. 122, Sept. Term 1858. Entered June 18th 1858, for $260. On the 3d day of September 1858, the sheriff of Wayne county, by virtue of a writ of fieri faaias issued upon aforesaid judgment of E. Owen v. Thomas Thomas, No. 133, Sept. Term 1857, levied upon and sold one of said pieces of land for the sum of $1500. This piece of land was embraced in said canal company’s mortgage, and said four first judgments referred to were the-first liens upon same, as well as being the first liens upon other lands of said Thomas not embraced in said mortgage, and subsequently sold by the sheriff as hereinafter mentioned. On the 9th of September 1857, the court appointed C. S. Minor, Esq., auditor, to distribute the proceeds of said sale, and to’report the facts under a rule to show cause why the said referred to judgments in favour of Lydia A. Forbes, W. H, Dimmick, E. Owen, and Cyprian Carr, against said Thomas Thomas, should not be marked to the use of the President, Managers, and Company of the Delaware and Hudson. Canal Company, upon their application to said court to be subrogated in place of said plaintiffs in said judgment. The auditor made report appropriating said $1500, less $17.50, expense of audit, to the three judgments first mentioned, viz., L. A. Forbes, W. H. 'Dimmick, and E. Owen; and the balance thereof, $32.89, to ■judgment of Cyprian Carr, which appropriation was, December 11th 1858, confirmed by the court, leaving the question of subrogation undisposed of, but referring the same back to the auditor, “ to report additional facts in relation to the question of subrogation.” On the 7th day of February 1859, the sheriff of Wayne county, by virtue of a writ issued upon the before-mentioned judgment of Lemuel Stone v. Thomas Thomas, No. 146, May Term 1858, sold all the balance of said Thomas Thomas’s land not embraced in the mortgage, for the sum of $950, which moneys were brought into court, but not distributed, depending upon the •question of subrogation. On the 29th of April 1859, the sheriff of Wayne county, by virtue of a writ issued upon a judgment entered upon one of the judgment-notes secured by said mortgage, sold all the balance of said real estate covered by said mortgage for the sum of¡ $4930; and the auditor appointed to distribute the proceeds of said last sale, appropriated the same, less $222.38, the costs of sale and auditing, to the canal company’s mortgage, leaving still a balance of $2069.56 unpaid thereon. The said judgment of Carr v. Thomas, No. 143, December Term 1857, was paid by the canal company, and is satisfied. The mortgage embraced a large number of pieces of land, the-descriptions whereof were furnished by Thomas, and it was the mutual intention and determination of Thomas and said canal company, at the time the mortgage was executed, to embrace in it all the lands owned by him, but it was subsequently ascertained that the land sold by the sheriff, February 7th 1859, for $950, was omitted. Since the execution of the mortgage the company paid to Thomas Thomas, between September 1st 1857 and June 1858, the following sums for the following items, viz.: — ■ [Delaware and Hudson Canal Company’s Appeal.] Paid for lumber ...... $5090.00 “ right of way for railroad . . 1500.00 “ services, about .... 485.00 “ teaming, about .... 300.00 Total ........ $7375.00 The timber from which the above referred to lumber was manufactured, or the principal part of same, was cut from the lands embraced in the mortgage, the same being appurtenant to a steam saw-mill situate upon said premises, which said mill said Thomas was running at the time he executed said mortgage, and continued to run same while furnishing said lumber. Thomas is insolvent, and has no other property, real or personal, to the knowledge of his creditors. The company claimed, under the above statement of facts, to be subrogated to the rights of the first lien-creditors of Thomas, to the extent of the $1500 raised upon said liens from the mortgaged premises. The court below (Barrett, P. J.) filed an opinion, refusing to subrogate the company to the place of the plaintiffs in the said judgment, from which decision this appeal was taken.
38 Pa. 517Talmadge v. Scudder (1861)
This was an action of trespass brought to September Term 1856, by Isaiah Scudder and Daniel C. Scudder, against Henry S. Talmadge and Richard Humphrey, for taking and carrying away a quantity of lumber claimed as the property of the plaintiffs. The case was this: — In 1855, Albert Cottrell entered into a contract to build a bridge across the Delaware at Equinunk, and agreed with the plaintiffs (who were lumbermen) or one of them, to furnish the lumber for this purpose.
38 Pa. 525Stearly's Appeal (1861)
This was an appeal by Jacob Stearly from the decree of the Common Pleas upon his final account as trustee, and administrator c. t. a. under the will of Henry Apple, deceased. Jacob Stearly was, on the 8d of April 1830, appointed trustee under the will of Henry Apple, and as such filed accounts annually, which were admitted to be correct, and receipts and acquittances given by the parties in interest until after the death of the widow, which took place in 1850.
38 Pa. 531Garrison's Appeal (1860)
This was a feigned issue directed by the court to determine certain facts connected with the distribution of the proceeds of certain real estate in the city of Pittsburgh, sold by the sheriff as the property of James Blakely.
38 Pa. 535Appeal of St. Joseph's Orphan Asylum (1861)
This was an appeal by the St. Joseph’s Orphan Asylum, from the decree of the Orphans’ Court of Chester county, directing the asylum to pay the fees of the auditor and other officers of the court, in the audits on said estate. Henry Kimber, executor, &c., of Henrietta Deville, filed his account August 6th 1853, showing a balance in his hands of $1566.02. Among the credits claimed by the accountant, there was one for about $4000, for money lost by unavoidable accident.