48 Pa.

Volume 48 — Pennsylvania State Reports

105 opinions

48 Pa. 9Oswald v. Kennedy (1864)
Erbor to the Common Pleas of Cumberland county. This was an action of trespass on the case by John Kennedy against Richard Oswald, Andrew J. Kauffman, Joseph Millisen, John S. Boyer, Daniel Comfort, Levi Kauffman, and Levi Eberly, to recover damages for an alleged false imprisonment. The material facts of the case were these:— On the 29th June 1861, the plaintiff was in the borough of Mechanicsburg, in Cumberland county. He started from Herd’s tavern on horseback, in the direction of his home, four or five miles south of the town, had passed to the upper end of town and turned into a cross street on his way home, when he was followed by a crowd, wbo signalled to Richard W. Oswald, one of the defendants, to stop him, after he had passed into the cross street near Oswald’s dwelling on his way home. Oswald did stop him, and a crowd of men and boys came up and collected round Kennedy. After some little delay, in which Millisen said he should not be harmed, Oswald and Andrew J. Kauffman led Kennedy’s horse, one at each side of the bridle, with Kennedy on the horse, down the Main street of the town, the crowd of men and boys following, and took him to the town hall. Joseph Lease, Esq., was sent for, who said he had no jurisdiction of the case, and afterwards, by a vote of those present, Kennedy was permitted to leave. Afterwards a crowd collected round Kennedy at the tavern, and he was again taken to the town hall and again released. In justification of this conduct or in mitigation of damages, the defendants gave in evidence that on the day Kennedy was arrested he came to Mechanicsburg with marketing for sale, that he went into the store of John Boyer, and there in conversation with Mr. Boyer, one of the defendants, and Levi Kauffman (in reference to the case of one Alvey, who had been arrested by order of the government, and had passed through the town in the cars that morning), said that the government had no right to arrest Alvey, that it was unconstitutional; and in the same conversation said that the South was right in rebelling against the North; that if the North had not interfered with the rights of the South, the South would not have rebelled; and if it came to that point he would be found fighting on the side of the South. That afterwards at Herd’s tavern, where the arrest of Alvey and its legality was again discussed, he used similar expressions in reference to the arrest of Alvey; said that he would talk as he pleased, and defied any one to arrest him; that he spoke in derogatory terms of the government, saying “Damn such a government; we have no government.” There being no evidence against Levi Kauffman, a nolle prosequi was entered as to him. On the trial, one of the plaintiff’s witnesses testified in chief, that “he heard some man in the crowd say, at the time they were leading the horse, that there was a pistol presented to Kennedy to stop him when .he was arrested.” On cross-examination the witness said, “I can’t tell who I heard speak of the pistol. I heard it repeated two or three times. It was said that a pistol was drawn when he was arrested and they were taking him down street. I was not present when he was arrested.” Defendants’ counsel thereupon moved the court to withdraw from the jury the declaration in reference to the pistol proved by the witness, but the court declined, saying, “In connection with what was said by one of defendants’ witnesses, that he would have been shot if he had resisted, we will submit to the jury the evidence of what was said in the crowd in presence of some of the defendants.” In the general charge, the court (Graham, P. J.), after stating the facts, instructed the jury as follows :— “ If Kennedy used the language stated' by some of the witnesses, he certainly acted very imprudently, rashly, and indiscreetly, and in a manner well calculated to produce excitement with his auditors. But after all this he was permitted to get on his horse and ride up town in the direction of his home, a few miles distant; he passed to the upper end of the town, turned into a cross street leading to his residence, but was followed by a crowd of men and boys, as detailed by the witnesses, his horse caught by the bridle by Andrew Kauffman and Kichard W. Oswald, and forced, against his will, to return to the town hall, where a crowd collected, and after a statement made by those who heard what was said, he was permitted to leave. He returned with a crowd again to the hall, and after a further hearing, was again permitted to leave, and went home. “We have said that the evidence of defendants was received, not as a justification of their conduct, but to show the circumstances under which the arrest was made, in mitigation of damages. “ If the defendants were only influenced in their actions in this case by their love of our union, its constitution and laws, their preservation and perpetuity, they have been unfortunate in the manner selected to evince their zeal for the preservation of law and order against violence, lawlessness, treason, and rebellion. It is a bad way to preserve our union and the constitution and laws of our government, by violating the constitution and laws in attempting to protect them. “ Under all the circumstances, we submit to you to say what the damages ought to be under the facts detailed by the witnesses. “We don’t consider it, under all the circumstances, a case that calls for heavy damages. But at the same time we consider that it is one in which more than nominal damages ought to be awarded, and that you ought to return such verdict as would satisfy the defendants that the laws of our country cannot be violated and disregarded with impunity. “ But, as we have said, the amount of damages is for you and not for the court, and to you we submit the case, to find- such a verdict as you may consider the facts detailed by the witnesses may justify and require.” Under these instructions there was a verdict “ in favour of the plaintiff for $900. Daniel Comfort stricken out.” The verdict having been entered by the clerk against all the defendants by name, except Daniel Comfort, including Levi Kauffman, and there having been a non pros entered as to Levi Kauffman in the progress of the trial, the court directed “ the entry of the verdict by the clerk to be corrected by striking out the name of Levi Kauffman,” which was done. Judgment having been entered on this verdict, the defendants sued out this writ, averring that the court erred— 1. In their general charge to the jury, in saying, “ we consider that it (this case) is one in which more than nominal damages ought to be awarded.” 2. In altering the verdict as rendered by the jury, so as to leave out the name of Levi Kauffman and Daniel Comfort. 3. In leaving it to the jury to find a verdict against all the defendants, when there was no evidence to justify them in finding any verdict against John G-. Rupp and Joseph Millisen. 4. In refusing to withdraw, on defendants’ request, from the jury that part of the testimony of Thomas English, in which he said: “ I heard some man in the crowd say, at the time they (Oswald and Kauffman) were leading the horse, that there was a pistol presented to Kennedy to stop him when he was arrested the witness having stated on cross-examination, “ I can’t tell who I heard speak of the pistol; I heard it repeated two or three times ; it was said that a pistol was drawn when he was arrested; this was after he was arrested, and they were leading the horse down street; I was not present when he was arrested.” The name of the counsel for plaintiffs in error did not appear in the printed paper-book.
48 Pa. 13Gunkle's Appeal (1864)
Appeal from the Common Pleas of Lancaster county. This was an appeal by William Gunkle from the decree of the court below, affirming the report of the auditors on the account of Horace Rathvon, assignee of The Lancaster Bank. The material facts of the case, as found hy the auditors, were these:— On the 3d day of February, A. D. 1857, the Lancaster conveyed to Horace Rathvon all its estate, real, personal, and mixed, “ in trust for payment of all the just debts of said Lancaster Bank.” This conveyance was recorded on the 5th February, A. D. 1857, and tbe trustee therein named entered upon the performance of the duties of the trust in the mode usually practised in cases of assignment hy individuals for the benefit of their creditors; and, after one or more partial accounts, on the 1st day of January, A. d. 1862, filed his final account. The validity or efficacy of this appropriation of the property of the bank was not contested by either the stockholders or creditors of the institution; but in behalf of certain of the creditors repeated efforts were made to use the agency of the trustee for the enforcement of the liabilities imposed upon stockholders and directors, by the 15th and 23d sections of the Act of Assembly of 7th April 1849, entitled an act to “ extend the charter of the Lancaster Bank.” The first was by petition to the Common Pleas of the county of Lancaster for mandamus to the directors of the bank, commanding them to file in the office of the prothonotary of the county the statement of the affairs of the bank, required by the 25th section of the Act of 1849, when a bank is compelled to make an assignment. The court refused to grant the prayer of the petition, on the ground that the provisions of that section were applicable only to a compulsory assignment, while that of the bank was a voluntary one under the Act of March 12th, 1842. Subsequently suits were brought, by creditors in the name of the assignee, against a number of persons who had been directors of the bank, for their proportional shares of the loss which had accrued by reason of the insolvency of the institution under the 23d section of the Act of 1749; in all of which cases the assignee filed disclaimers, and asked and obtained the leave of court to discontinue. Under the exceptions filed to this final account, it was urged that the refusal of the trustee to take any step for the enforcement of the liabilities of the stockholders and directors of the bank, as provided by the 15th and 23d sections of the Act of 1849, was a failure in the performance of his duty which rendered him liable to an amount equal to that which might have been realized, if he had proceeded to enforce those liabilities. These exceptions were as follows: — • 1. The accountant has not charged himself with the whole estate of the assignor which came, or ought to have come, into his hands. 2. He has neglected and refused to sue the directors of the bank for the recovery of large sums of money known to have been declared in dividends out of the capital stock, and he ought to be charged with the money that could have been collected from them. 3. He has neglected and refused to sue out a scire facias against the stockholders of the bank, to recover the amount necessary to pay the outstanding circulation of the bank, and he ought to be charged with the money that could have been collected from them. 4. The accountant ought to be charged with the moneys that might have been collected by the suits instituted by undersigned exceptants in the name of the accountant against directors, and which were discontinued by the accountant against the consent of exceptants. In support of these exceptions proof was offered “that the stockholders of the bank are many of them responsible, and if the assignee of the bank had brought suit against them to recover their'individual liability under the charter of 1849 he might have recovered an amount of money for the creditors equal to the par value of the stock held by them respectively. “ That the creditors, being note-holders and exceptants here, brought a number of suits in the Court of Common Pleas of Lancaster county, in the name of Horace Rathvon, assignee, against a number of directors of the Lancaster Bank, for declaring dividends out of the capital stock, which suits the said Horace Rathvon disclaimed, and asked leave of the court to discontinue the same. And the rule to discontinue aforesaid was made absolute by the court; and further, that in some of those suits the defendants were responsible men, fully able to have paid. “ And, that Horace Rathvon, the assignee, was at the time of the assignment an officer of the bank, and had possession of its books and papers, and was fully cognisant of the condition of the bank at the time of the acceptance of the assignment.” The question raised before the auditors was this: Was it the duty of the accountant to enforce against the stockholders and directors of the Lancaster Bank the liabilities to which they are respectively subjected by the 15th and 23d sections of the Act of 1849, extending the charter of that institution ? After an elaborate examination of the authorities bearing upon this question, the auditors (H. B. Swarr, A. H. Hood, and A. Slaymaker) came to the following conclusion: — ■ • 1. That the proper instrumentality for the enforcement of the individual liabilities to which the stockholders and directors of the Lancaster Bank have been subjected by the Act of 12th March 1849, is a compulsory assignment. 2. That the provisions of the Act of 12th March 1849, with reference to compulsory assignments, have not abrogated the common law right of the Lancaster Bank to make a voluntary assignment for the benefit of its creditors. 3. That this having been a voluntary and not a compulsory assignment, the assignee was not empowered, and it was therefore not his duty to enforce against the stockholders and directors of the Lancaster Bank, the liabilities to which they individually have been subjected by the Act of 12th March 1849. This report was excepted to by creditors of the bank, and the counsel for the accountant also objected to so much of the report as directed the payment of the costs of the audit out of the fund in court. The court below on hearing, confirmed the report of the auditors, overruling all the exceptions; which was the error assigned.
48 Pa. 20Trustees of the Lutheran Congregation v. St. Michael's Evangelical Church (1864)
Error to the Common Pleas of Somerset county. This was an action of ejectment by a portion of the members of the Lutheran congregation worshipping in Pine Hill Church, against the trustees of the church, to recover possession of the church edifice and grounds. The whole case will be found in the opinion of this court.
48 Pa. 22Hale's Executors v. Ard's Executors (1864)
Account-book of attorney, whether evidence of indebtedness for services charged, dubitatur. — Proper subjects of book charge. — Boole not evidence of collateral matters — Statute of Limitations, what evidence will rebut.— When it commences.— Qosts in assumpsit. 1. How far the book of accounts of an attorney at law, containing charges for professional services, are evidence of indebtedness to him by the persons charged, not decided; but dubitatur. 2. An item of commission for collecting a sum of money is not a proper subject for a book charge; and a charge for visiting the house of the client at the request of a third person is no evidence of indebtedness; nor is a charge for a fee in an equity case, where it did not appear that the plaintiff was concerned in it as attorney; a party is liable only for services rendered therein upon his request, but books of original entry of the attorney are not evidence of a request, made by a third person. 3. The record of a suit which had been brought against the defendant and others, is not admissible on behalf of the plaintiff to take out of the Statute of Limitations his book charge for going to defendant’s house, and counsel-ling in regard to it, where the suit was not brought at the time of the entry, and the plaintiff was not employed to attend to it, and did not appear as attorney on the record; nor was it evidence of a continuing relation as counsel and client. 4. In an action upon a book account of an attorney against defendant’s executors, it is not competent for the plaintiff to prove by a witness that he was the general legal adviser of the defendant, either for the purpose of establishing a continuing relation as counsel, or for the purpose of avoiding the Statute of Limitations; nor is the will of the defendant admissible for such a purpose. 5. The Statute of Limitations runs against a claim for professional services as soon as they are finished; and the relation of continuing attorney in a litigated case will not prevent the claim for services generally from being barred by the statute, though it may for services rendered during the progress of that particular case, and in that case. 6. Where the plaintiff in assumpsit recovered less than ¡¡¡>100, and there was nothing to show that the demand was reduced by set off, judgment was .properly entered without costs.
48 Pa. 26Myers's Appeal (1864)
Appeal from the Orphans’ Court of Adams county. This was an appeal by Ann Myers, late Ann Snyder, the widow of Baltzer Snyder, from the decree of the court below on the distribution of the estate of her deceased husband. The case was this:— Baltzer Snyder died on the 27th day of November 1860, having made a will dated the 18th day of November 1860, which was proved December 4th 1860. Letters of administration, with the will annexed, were granted to Daniel K. Snyder, December 4th 1860. The testator left personal property, which as per inventory filed December 18th 1860, amounted to $6601.60 Consisting of bonds and notes - - 5148.36 And household property, stock, and implements on farm.....- 1050.77 The real estate amounted to - 8420.00 By his will he directed that all his just debts and funeral expenses be paid as soon after his decease as possible, out of the first moneys that should come into the hands of his executors— and then proceeded as follows: “ I will and bequeath unto Jacob Ilersh and his wife Sarah $250; I will and bequeath unto Henry Yeagy $250; I will and bequeath unto David Dietrick and his wife Elizabeth $250; I will and bequeath unto David Wolf and his wife Lydia $250; I will and bequeath unto Jesse Houck $250; I will and bequeath unto Baltzer Houck $250 ; I will and bequeath unto Sabina Gardner $250; I order and direct my executors hereinafter named to sell all my real estate as soon as convenient after my decease to the highest and best bidder or bidders either at private sale or public outcry, hereby giving them authority to make as good a title to the purchaser or purchasers as I myself might or could do if living. I will and bequeath unto my beloved wife Ann as much of my personal property as she chooses to retain, to he set apart for her without any appraisement being had of the same. I desire that my beloved wife Ann remains on the property I now reside on, until the same is sold and possession given to the purchaser. I also will and bequeath unto my beloved wife Ann $200 yearly, until my real estate is sold and possession given to the purchasers. I also will and bequeath to my beloved wife Ann $4000, to be paid to her as soon as it can be collected from the sale of my real estate. My will is that all the rest and residue of my estate be divided equally among my brothers and sisters or their children, to wit: George Snyder, Conrad Snyder’s heirs, Henry Snyder, Sarah, intermarried to Christian Benner, Elizabeth Brinkerhoff’s heirs, Lydia Hersh.” Under this will the widow claimed the whole of the personal estate of the testator, of which claim due notice was given the administrator, December 12th 1860. In his account the administrator claimed credit for the payment of the legacies of $250 each; to Henry Yeagy, David Dietrick and wife, Daniel Wolf and wife, Jesse Houck, Baltzer Houck, and Sabina Gardner. To these credits the widow’s counsel excepted, and claimed the same as belonging to her. An auditor was appointed to dispose of these exceptions and make distribution of the balance in the hands of the administrator. The balance in his hands was, as per account, $198.99, or per auditor’s report, after deducting expenses, &c., $181.90. There were also outstanding and uncollected, notes amounting to $2348. The auditor dismissed the exceptions to the account, but gave to the widow all the bonds and notes of testators’ estate, after paying the debts and above-mentioned legacies. To the payment of these legacies out of the bonds and notes, the widow’s counsel excepted. The court below decided, that the testator did not intend to bequeath to his widow the ehoses in action, dismissed the exceptions which had been filed for her, and directed the $181.80, which the creditor had given to her, should be distributed to the testator’s brothers and sisters as set out in the will. It was averred here for the appellant, that the Orphans’ Court erred:— 1. In decreeing that the widow was not entitled to the bonds and notes of testator’s estate. 2. In decreeing the distribution of such bonds and notes or their proceeds to the general and residuary legatees, the general or definite pecuniary and residuary legatees, not being entitled to any portion of the personal estate, until the claim of the widow upon it is fully satisfied on account of her bequest, and the claim of the residuary legatees in particular being postponed by the express terms of the will to the debts and all other legatees; and 3. In dismissing the exceptions of the widow to the auditor’s report.
48 Pa. 29Bedford Railroad v. Bowser (1864)
Error to the Common Pleas of Bedford county. This was an action of assumpsit by The Bedford Railroad Company against Jonathan Bowser, to recover the amount due on his subscription for three shares of stock of the company, at $50 a share. The subscription was made June 12th 1858, and this fact was not denied on the trial; but the defendant, under the pleas of payment, release, illegality of consideration, &e., gave notice that he would oifer in evidence the following special matters as a defence:— 1. That by the terms of the original charter to the plaintiffs, passed March 19th 1858, it was required that the sum of $150,000 should be subscribed in good faith before letters patent should be issued to the plaintiff's. That all or nearly all of the stock, including that of the defendant, was subscribed upon that,as well as upon other conditions. That in 1859, a supplement to the original charter was obtained or procured from the legislature, authorizing the issuing of letters patent when $25,000 of stock should have been subscribed. 2. That the subscriptions, including defendant’s, were conditional, but certified to the governor, in order to obtain letters patent, as unconditional. Two of these conditions were, that $75,000 should he subscribed in good faith by non-residents of the county, before the defendant and others should be required to pay their subscriptions; and also that when paid, the money should be applied to the construction of the road on the end next to Bedford. 3. That two subscriptions to stock were made, one by J. K. Moorhead, and one by William P. Schell, agent, amounting to $75,000, to comply with the aforesaid conditions. That the said subscriptions were made without authority, and not in good faith. That they were afterwards, in part, released and in part transferred, but were really never paid by those to whom the stock was transferred, nor by the subscribers. 4. That the certificates of stock- to the governor to obtain letters patent were not properly authenticated. 5. That said certificate of stock contained a subscription of William B. Schell & Oo. for $75,000 worth of stock, when in truth and in fact no such subscription had ever been made. 6. That by gross mismanagement of the affairs of said company, $10,000, or a large sum of money, was paid to Collins, Dull & Co., over and above other bids for the contract of the work. That a gratuity of $6000 was afterwards paid said Collins, Dull & Co., over and above the contract price of their work, by the company, whose directors at the time were elected by fraud and collusion, for the accomplishment of this purpose. 7. That the subscription of the defendant was cancelled and annulled by an order of the board of directors, and the defendant released. Issues having been formed on these pleas, a jury was called on 4th of May 1863. The material facts were as follows: The Bedford Railroad Company was incorporated by an Act of the General Assembly of Pennsylvania, passed March 19th 1858, with a capital of five thousand shares, of $50 each, and with the right to increase the same, from time to time, by a vote of the stockholders, to an amount sufficient to carry out the object of the charter; and the governor was authorized to issue letters patent, whenever it was duly certified to him that three thousand shares had been subscribed. A supplement was passed January 20th 1859, which authorized the issuing of letters patent when 10 per cent, of the capital stock should be subscribed, in conformity with the second section of the general law regulating railroad companies. Books to receive subscriptions to the capital stock were opened by the commissioners named in the act, in the spring and summer of 1858, on the first leaf of which was written the following:— “ It is hereby agreed by the undersigned, commissioners named in the Act of Assembly incorporating the Bedford Railroad Company, that all subscriptions to said railroad, made in this book, shall be payable on the following conditions, viz.: The first instalment shall not be required by the board of directors of said company until after the first day of October next, nor until at least $75,000 shall be obtained outside the county of Bedford, and the same shall have been approved by the board of directors of said company. “ Witness our hands and seals, this 7th day of May 1858.” Signed and sealed by nine commissioners. The caption to the subscriptions was in the following words :— “ We, whose names are hereto subscribed, do promise to pay to the treasurer of the Bedford Railroad Company the sum of $50 per share, for each and every share of stock set opposite our respective names, in twelve monthly instalments. Witness our hands.” Subscriptions to the amount of $100,000 were obtained, and amongst the subscribers of stock, residing in the county of Bed-ford, was the defendant. Letters patent were issued by the governor to the company on the 3d of February 1859, and the company was duly organized by the election of a president and directors, on the 19th of February 1859, of which public notice was given, as recraired by law. The defendant took part in this election, and voted for the officers. On the trial, the plaintiffs, having given in evidence under exception the subscription of defendant, over which was written, “ cancelled by order of the board of directors,” offered to prove that at a meeting of the directors of the company, held on the 11th of January 1861, three days before the expiration of their term of office, Mr. Cessna, who represented himself as the attorney of the stockholders, appeared and handed to the board a set of resolutions to cancel and annul the stock, and stated that the object of the resolutions was to defeat the claims of Collins, Dull & Co. (who were contractors on the road), and that the resolutions were passed by the board. This was objected to by defendant— 1. Because the conversations and allegations of persons about the board, when the purpose of annulling was under consideration, are not evidence in the case. 2. It is of no importance to the case what motives led the directors to the act of cancellation. The record itself is the evidence, and the only evidence, the company can offer. 3. Parol evidence, is inadmissible to alter, vary, or contradict the record; and 4. The declarations of Mr. Cessna are not evidence in this case to affect the defendant, for whom he did not appear. The court rejected the evidence, unless it were made to appear that Mr. Cessna was attorney for Mr. Bowser at the time the resolutions were offered. After some further evidence, the plaintiff offered the minutes of the board meetings held March 23d and 25th 1861, at one of which the directors were elected, and at the other the resolutions-of January 11th 1861 were rescinded and declared null and void; which were objected to and rejected by the court. Among the points presented by the plaintiff were the following :— 3. If the jury believe that debts had been contracted in the honest prosecution of the enterprise for which the corporation was created, and that some of the stockholders had paid the amount of their subscription to the capital stock of the company, then the directors had no power or authority to cancel subscriptions of stock, on which no payments had been made, and thus leaving the creditors without the means of collecting their claims, and render valueless the stock of the paying subscribers. 4. That if the jui-y believe the object of the cancellation of the stock was to defeat Dull, Collins & Co., and olher creditors in the collection of their claims against the company, such a cancellation was a fraud on the creditors, and therefore null and void. 5. That the defendant cannot set up the cancellation of the stock subscribed by him, under the facts and circumstances of this case, as a defence, and that the unauthorized acts of the directors in making such cancellation, leave the case in the same situation as if such cancellation had never taken place. 6. The fact that defendant voted at an election for directors, after the supplement to the charter was passed, prohibits him from setting up any defence on the ground that $150,000 were not subscribed before the issuing of the letters patent. Which were answered as follows:— “ 3. We answer this point by instructing you, that, notwithstanding some of the stockholders of said corporation had paid the amount of their subscriptions to the capital stock of said company, the directors had authority to cancel subscriptions of stock on which no payments were made; and if the corporation has assets enough to pay their creditors left, their cancellation of stock would be valid. “4. If the jury believe the object of the cancellation of the stock was to defeat Dull, Collins & Co., and other creditors in the collection of their debts, such cancellation was a fraud on such creditors, and would render the action of the board null and'rvoid; but we are of opinion that the creditors of said company would have a right to complain. If, however, the assets of said corporation were sufficient to pay the debts, and you are satisfied from the evidence in the case that the debts were paid, the cancellation cannot be taken advantage of by the directors of said company in this suit. “ 5. We answer this by saying to you that the defendant can set up the cancellation of the stock subscribed by him, under the facts and circumstances of this case, as a defence, and that he is discharged by such cancellation, unless said company proves that he has agreed to pay his subscription since the cancellation. There is no evidence before the court, that we know of, that he, the defendant, agreed or promised to pay his subscription since said cancellation; this being the case, your verdict should be for the defendant. “ 6. We answer by instructing you that the fact that Bowser, the defendant, voted on the 19th day of February 1856, at an election held for the election of directors of said corporation, one day less than oner month after the change of the charter, does not prohibit him from setting up this defence, unless he knew of the modification of the charter from $150,000 to $25,000. The presumption of law, under the facts, would be that he knew of the existence of the change of the charter— whether he did or not we submit to you, under the testimony in the ease, and you will decide accordingly.” Under these instructions there was a verdict and judgment for defendant. Whereupon the plaintiff sued out this writ, and assigned for error— 1. The rejection of the plaintiff’s offer as to what took place at the meeting of the board which was held January 11th 1861. 2. The rejection of the minutes of the meetings held March 23d and 25th 1861. 3. The refusal of the court to answer the plaintiff’s 3d point in the affirmative. 4. 5, 6, and 7. The answers given by the court below to the plaintiff’s 3d, 4th, 5th, and 6th points.
48 Pa. 38Dreer & Wilson v. Carskadden (1864)
Ekkor to the Common Pleas of Qlinton county. This was an action of ejectment by F. J. Dreer and James Wilson against David Carskadden, for a tract of land in Bald Eagle township, containing four hundred and fifty-nine acres. The plaintiffs claimed title under a warrant granted to Jane Nelson, on the 7th April 1794, for four hundred and fifty acres in Bald Eagle township, Lycoming county, upon which a survey was made of four hundred and fifty-nine acres and one hundred and thirty-three perches, on the 10th of September 1795. By virtue of certain conveyances given in evidence, an undivided interest in this tract became vested in the plaintiffs. On the supposition that the “ Jane Nelson” survey embraced more land than the warrant called for, Joseph B. Anthony, on the 31st of May 1831, took out a warrant, and on the 17th of August 1831 made a survey, laying it on the “Nelson” tract, calling for Thompson, Martin, and Gray as its northern boundary, and covering nearly one-half of the Nelson survey. The defendant asserted title to the premises under a warrant to Charles Carskadden, dated October 3d 1859, upon which a survey of four hundred and ten acres and four perches was made on the 6th October 1859. The paper titles of the parties under which they claim respectively were not in dispute, and the question presented, and upon which the whole case depended, was one of location. If the Nelson survey was located where the plaintiffs alleged it is located, then, according to the testimony of the surveyors, it would embrace the land covered by the Carskadden survey. The defendant, however, contended that a proper location of the Nelson survey would not interfere with the survey of Charles Carskadden. The location of Carskadden being a survey of recent date, was well established by the evidence as lying along the northern, boundary of the tracts in the name of Mark Slonacker, Abram Lawshe, and Thomas Calvert, so that the question was still further narrowed down to this — Did the Charles Carskadden survey occupy the land which had been previously appropriated by the survey of Jane Nelson? On the trial the defendant offered in evidence a certificate of the proceedings of the board of property, September 20th 1859, on the petition of Frederick J. Dreer and James Wilson, in relation to this tract of land, for the purpose of showing that the plaintiffs in the suit disclaimed having any title to the' land covered by defendant’s warrant and survey, and that the board of property recognised and acted on their declarations; to be followed by proof that the resurvey then ordered did not include the land embraced in the defendant’s warrant; and also to show declarations of defendant as to the location of the survey claimed by them and named in their petition. This was objected to because it was not offered to show the return in pursuance of the petition, but. the objection was overruled and the paper admitted. Among the points presented by the defendant, on w'hich the instruction of the court was requested, were the following:— 1. That no marks being found upon the ground corresponding in date with the Jane Nelson survey, it must be located by its calls, and that the location of the junior survey in the name of Joseph B. Anthony, can in no way affect the question of the true location of Jane Nelson. 8. That the white oak called for on the western end of the Jane Nelson survey can only be regarded by the jury, in fixing her location from east to west. The court below in their general charge, after stating the main facts of the case, instructed the jury as follows:— “ How are we to ascertain the location of Jane Nelson ? The marks on the ground are the best evidence of the location, and where these are found the survey must conform to them, notwithstanding they may differ from the return made by the surveyor into the land office. Where, however, no marks are found upon the ground corresponding with the survey, then the next best evidence of location are the boundaries called for in the return of survey made by the deputy surveyor. Now let us apply these rules to the case in hand. The surveyors who have been on the ground from time to time, and who have testified as to the result of their explorations, have all concurred in saying that the southern line of the Thompson, Martin, and Gray surveys, which is called for as the northern boundary of the Jane Nelson, and is properly known as the Cadwalader Evans line, is so well established as not to admit of dispute; they agree in saying that they find a white oak, which, if the Evans survey were extended southward as far as claimed by the defendants, would correspond with the call for a white oak near the south-western corner of the Nelson survey, and a survey in the names of James Taylor is also found by nearly all of them, which, the plaintiffs allege, adjoins Nelson on the west. You will notice a dotted line running westward from the white oak on the official draft of Jane Nelson. The plaintiffs say that this white oak is the north-east corner of the James Taylor tract, and that the southern line of the Nelson should be run from a fallen maple which stands about twenty-seven perches south of the white oak, and which counted in 1827, according to Mr. Treziyulny’s statement, thirty-nine years. This would very nearly correspond with the Taylor survey which was made in 1789. [In running the line from the fallen maple N. 60 E., which is claimed as the southern line of Nelson, according to plaintiff’s location, no marks are found corresponding with the date of Nelson survey exactly.] Judge Quay speaks of a tree which he blocked and found that it counted sixty-four in April 1860, and Mr. Treziyulny speaks of finding a small black oak at two hundred and twenty-three perches, which he blocked and found it to count to 1789. This is claimed as the black oak in the southern line of the official survey of Nelson, and from which a dotted line is run nearly at right angles. With the exception of the tree spoken of by Judge Quay, the other marks found by the surveyors along the southern line are quite too old or too young to have been made for the Nelson survey. [You will notice by reference to the draft of Nelson, that it calls on the south for Taylor’s land. There is, however, no evidence in the case tending to show that there is any survey in the name of Taylor, or which was known as Taylor’s land, lying south of a line running from the fallen maple. An old draft has been produced by one of the witnesses said to have been made by old Mr. Treziyulny, upon which he has protracted a survey in the name of John Taylor, but, so far as the evidence in the case shows, no one ever heard of such a survey lying in that place.] Have the plaintiffs satisfied you that the line running N. 60 E. from the fallen maple is the southern line of the Nelson survey? If they have, then it will extend northward to the Cadwalader Evans line, called for as its northern boundary, and include all of the Carskadden survey, notwithstanding it may thus be made to embrace double the quantity of land called for by the return of survey. So far as we can discover, the Supreme Court have never defined the quantity of excess which may be held by a warranty against a subsequent grantee from the Commonwealth, and we therefore think it expedient in this case to instruct you in plain terms, as we have done, that the plaintiffs will be entitled to hold to the Cadwalader Evans line, notwithstanding the marks on the ground may fix the southern line of the Nelson survey so far distant as to embrace twice as much land as returned. [But before you can adopt the line from the fallen maple or the southern line of the survey, you must he satisfied that there are marks on that line corresponding with the date of the survey, or that the black oak found by Treziyulny is the black oak called for by the return of the surveyor. It is not enough that the plaintiffs show a marked line; they-must also show that the marks correspond with the return of survey.] “ If the plaintiffs have failed to fix the southern line by marks upon the ground corresponding with the survey of its calls, then the Nelson survey can extend no further southward from the Evans line than the distance indicated by the official return, and it seems to be quite clearly proven that in such case it would not interfere with the Carskadden tract. “ From this you will discover that after all the question upon which the case turns is, where is the true location of the southern’ line of Nelson ? Its northern boundary is fixed by the call for the Evans line, and its extent eastward and westward is not in dispute. This is a question of fact which we submit to you. If, under the evidence and the instructions we have given' you, you find the line from the fallen maple to be the southern line of the Jane Nelson, then the plaintiffs will be entitled to recover such undivided interest as is vested in them by the deeds given in evidence. But if the plaintiffs have failed to show the location of the southern line of their survey by marks upon the ground corresponding therewith, they will he confined to the official distance southward from the Evans line, and if you believe the surveyors, that the tract would not in such case interfere with Charles Carskadden, the plaintiffs have no claim to recover, and your verdict should be with the defendant.” The defendant’s points were answered as follows:— “ 1. Whether there are marks found upon the ground corresponding with the Nelson survey is a question of fact for you, although the evidence tending to show the existence of such marks may be but slight and indistinct. If no such marks are found, then the survey must be located by its calls. We affirm the proposition that the location of the junior survey, in the name of Anthony, can have no effect upon the location, of the older survey of Nelson. The calls of Joseph B. Anthony for the Nelson cannot influence the location of the latter. “ 8. As we understand this point, the defendant’s counsel asks us to instruct you that the white oak cannot he regarded as determining the extent of the Nelson survey southward, but only westward ; and thus understanding the prayer for instruction, we answer it in the affirmative. It is not pretended that the white oak is a corner of the Nelson tract, but on the contrary it is argued that it is a corner of James Taylor, and stands in the western line of Nelson, a short distance from the south-western corner. The distance from the white oak called for to the corner of Nelson is not given on the survey as returned, and therefore we affirm this proposition of the defendant, and instruct you that the location of the southern line of the Nelson cannot be determined or fixed protraction from the white oak. Nothing short of the finding of marks upon the southern line of Nelson, corresponding with the date or return of survey, will be sufficient to extend the survey southward beyond its official distance from the Evans line.” Under these instructions there was a verdict and judgment in favour of defendant. Whereupon the iDlaintiffs sued out this writ, averring-here that the court below erred in admitting in evidence the certificate of the proceedings of the board of property above mentioned; in so much of the general charge as is printed above in brackets; and in the answers given to the first- and eighth points propounded by him on the trial.
48 Pa. 46Duffey v. Presbyterian Congregation (1864)
Certificate under seal admissible without proof of seal. — Ratification of will by acceptance of legacy. — Interest on legacies. 1. A deed proved in 1803 before the mayor of Wilmington, Delaware, and certified under the corporate seal of the city, is admissible in evidence without proof of the identity of the impression. 2. Where the evidence of the ratification of a will, by the acceptance of legacies under it, consists of the acts of the party and of the language used by the party in the will, it is not error to submit the whole question to the jury under proper instructions as to the effect of such ratification. 3. Interest is chargeable on legacies that are payable without any contingency or limitation as to time.
48 Pa. 53Commonwealth v. Capp (1864)
Certiorari to the Quarter Sessions of Clinton county. At December Sessions 1863, ITosea Capp, one of the conductors of passenger trains upon the Philadelphia and Erie Railroad, in the employ of the Pennsylvania Railroad Company, was indicted for obstructing one of the streets of the borough of Lock Haven, by permitting cars to stand upon the crossing of said street, contrary to the Act of Assembly and the peace and dignity, &c. The defendant demurred to the bill, and the district attorney joined issue on the demurrer. The court below, on hearing, delivered the following opinion, and gave judgment for the defendant, which was the error assigned:— “ The question presented is, whether the indictment alleges an offence of which the defendant can be convicted under the laws of Pennsylvania. “ There can be no doubt that the allegations of the bill, if true, would be sufficient to convict the defendant of nuisance at common law, and this we do not understand the defendant to deny. But the allegation is, that the legislature having, by an Act of Assembly passed the 20th March 1845, provided a specific remedy for the injury complained of, the common law remedy by indictment cannot be resorted to. Now, if this position be correct, the demurrer is sustained, because, in this view, the bill does not allege an offence punishable by indictment. It is contended, however, by the counsel for the Commonwealth, that the remedy provided by the Act of 1845 is but cumulative, and does not supersede the common law remedy by indictment. The act referred to is in these words: ‘ It shall not be lawful for any railroad company to block up the passage of any crossings of public streets or roads, or obstruct the said crossings with their locomotives or cars; and if any engineer or other agent of any railroad company shall obstruct or block up such crossings, he or they shall be subject to a penalty of $25, to be recovered with costs in the name of the Commonwealth of Pennsylvania, before a justice of the peace; one half of such penalty shall be paid to the informer or informers, and the remaining half shall bo paid into the treasury of the Commonwealth: Provided, That in the event of such engineer or agent being unable to pay the said penalty, then and in that ease the said railroad company employing the said engineer or agent shall pay the penalty aforesaid.’ “ The Act of 1806 ordains that ‘in all cases where a remedy is provided or duty enjoined, or anything directed to be done by any Act or Acts of Assembly of this Commonwealth, the directions of the acts shall be strictly pursued, and no penalty shall be inflicted or anything done agreeably to the provisions of the common law in such cases further than shall be necessary for carrying such act or acts into effect.’ This act is introduced verbatim into the new Penal Code of 1860, and thus its provisions are made applicable to both civil and criminal cases. If, then, a remedy has been provided by the Act of 1845 for the injury complained of, the offence charged is not indictable, but the act providing for the recovery of a penalty in a qui tarn action must be strictly pursued. It seems to us that the injury provided for by the Act of 1845 is not distinctly set forth in the indictment, as was the case in Kelly v. The Commonwealth, 11 S. & R. 845, but, on the contrary, the nuisance complained of consists in the commission of the very acts for which a penalty is provided by the Act of 1845. The indictment charges that the defendant obstructed the highway by allowing the cars to stand upon the crossing, and the statute forbids any railroad company to block up the passage of any crossings of public streets or roads, or to obstruct the said crossings with their locomotives or cars, under a penalty of $25. We are unable to discover wherein the offence stated in the bill differs from that mentioned in the statute, and we are therefore of the opinion that this indictment cannot be sustained. “ This conclusion is fully sustained by the cases of The Commonwealth v. Evans, 13 S. & R. 426; Garman v. Gamble, 10 Watts 382; Pennsylvania Railroad v. Kelly, 7 Casey 372; Oliphant v. Smith, 3 Penna. R. 180; Criswell v. Clugh, 3 Watts 330; Brown v. Commonwealth, 3 S. & R. 275; and McIlhenny v. Commonwealth, 10 Harris 365. “Judgment is therefore given for the defendant on the demurrer, that he the said defendant go without day.” This writ was then sued out by the district attorney, without a special allocation.
48 Pa. 57Appeal of the Farmers' & Mechanics' Bank (1864)
Appeal from the Orphans’ Court of Lancaster county. This was an appeal by The Farmers’ and Mechanics’ Bank of Philadelphia from a decree of the court below, confirming the report of the auditor appointed to distribute the assets of the estate of Joseph Konigmacher, deceased. The material facts of the case were these: — On the 29th of March 1861 t'he bank - discounted two notes, one drawn by Christian Smith in his favour, and endorsed by him, dated March 23d 1861, at three months, for $1600, the. other drawn by William Meiley, in his favour, endorsed by him, dated March 30th 1861, at three months, for $1260. Before the maturity of these notes Mr. Konigmacher died. At the time of his death there were on deposit in the bank to his credit the sum of $700.66. When the notes fell due they were protested for nonpayment. On settlement of the account of the executors of the will of Mr. Konigmacher, his estate was found to be insolvent, or nearly so. The bank then claimed to retain the money deposited on account of these notes, and asked a dividend out of the estate of deceased upon the balance. This was objected to by other creditors, who insisted that the bank was bound to account for these deposits to the estate of deceased, and receive a dividend only on the amount of Konigmacher’s indebtedness to it thereon. The auditor decided this question against the claim of the bank, and the court below, on exception taken, confirmed this decision; which was the error assigned.
48 Pa. 58Wilson v. Crowell (1864)
Reciprocal rights and duties of parties to an agreement for sawing lumber in equal annual instalments, discussed and defined. 1. Where, as part of the consideration for the sale of a lease of land with a saw-mill and other buildings erected thereon, the vendee was to saw for the vendor a sufficient amount of lumber, at a certain price, in three equal annual instalments, amounting to the sum to bo paid thereby, held, that the vendee was entitled to the whole of the sawing season in eaeh year, to saw the proportion of that year: and where the vendor, before the close of the third season, took his logs out of the mill-basin, at a time when the balance of that year’s instalment could have been sawed, in consequence of which, sawing at the mill was stopped for want of logs six weeks or more before the close of the sawing season, it was held, that he could not recover damages from the vendee for a breach of the contract. 2. Where it was stipulated in the agreement that the vendor’s sawing “ was to be done in the customary way, that is, of sawing two weeks about with other logs in the basin,” and that he was “ to have the privilege to put his logs in the basin in proportion to the other stock coming to the millhe was held not entitled thereby to two weeks in every four, hut to two weeks in proportion to the other logs in the basin, or two weeks about with each of the other customers of the mill who had logs in the basin.
48 Pa. 66Hughes v. Commonwealth (1864)
 Liability of surety of county treasurer for state taxes. A surety on the state bond of a county treasurer is liable for taxes on real and personal property received by him for the use of the Commonwealth and not paid over: and though the county is the debtor of the state for interest accrued and accruing on, and possibly for the principal of such taxes, the surety cannot require the state to look to the county, and it to the sureties on the county bond.
48 Pa. 68Brotherline v. Swires (1864)
Error to tbe Common Pleas of Blair county. This was an action on the case by John Brotherline against James Swires and Anthony Swires, to recover damages for the trover and conversion of a portable steam saw-mill and some lumber, which the plaintiff had purchased at a judicial sale. A judgment in ejectment had been recovered in the Circuit Court of the United States by Murray Hoffman against Anthony Swires and others, on which writs of habere facias and fieri facias for costs were issued. The marshal levied on the property above mentioned, which was withheld by the defendant. It appeared, from the evidence, that the property was worth from $1500 to $1800. Mr. Brotherline was the crier, and receiving no bid on the day fixed for the sale, May 16th 1857, he adjourned until the fix-st day of July following. It was proved that on the 16th of May he had said to one or more of the bidders in attendance that he (Brotherline) “had no right or authority to sell,” which observation, the witness testified, deterred him from bidding; that on the 1st of July, at the second sale, Brotherline had told the same person that “he should go away, and that he did not want him there at all;” and that there being no other bidder, Brotherline struck off the property to himself for $20. The court below instructed the jury “that the sale to John Brotherline in the manner and in view of the facts clearly disclosed in the evidence was in law fraudulent and void, upon the clearly proved and undisputed facts of the case,” and directed the jury to find for the defendants; which was the error assigned here by the plaintiff.
48 Pa. 70Henry v. Brothers (1864)
Refusal of court below to open judgment not reviewed, on error.— Original judgment not to be assailed on trial of sci.fa. to revive. — Assignment of judgment on record, not notice to defendant. 1. The refusal of a court to open a judgment on the trial of a scire facias thereon to revive it, is not the subject of a writ of error, which can bring up for review only the proceedings upon the scire facias. 2. As the original judgment is not, on the trial of the scire facias, assailable for fraud or irregularity, the record of proceedings in lunacy had after the entry of the judgment is inadmissible, either under the plea of nul tiel record, or as evidence of the defendant's incompetency to execute the note on which the judgment was entered. 3. An assignment of a judgment on record is not constructive notice thereof to the debtor: hence payment by him to the obligee before notice of the assignment, is good.
48 Pa. 73Lloyd v. Farrell (1864)
Vendee of land, only entitled to special warranty deed. — Admissibility of parol evidence to affect agreement and deed for sale of land.— Concealment of defects in title, when constructive fraud.— What defects in title are covered, by the statutory covenant in the words “grant, bargain, and sell.” 1. The purchaser of land in fee simple is entitled to a covenant of special warranty only: he cannot claim anything more than a covenant against the acts of the grantor and his heirs. 2. Where, in an action on a purchase-money bond, given for land sold by articles of agreement, the title to which proved defective, there was parol evidence to support the allegation of the vendor that the purchaser had bought at his own risk, it was held, to be error to refer it to the jury in connection with the agreement and the fact that the deed was made and taken with a special warranty, as proof from which they might infer that the vendee had agreed to take the land at his own risk. 3. Where the vendor contracted by the articles of agreement to convey the land in fee simple clear of all encumbrances, parol testimony that at the time of the execution of the agreement the understanding was that the vendee should take whatever title the vendor had at his own risk, was held inadmissible to contradict the written instrument, and incompetent to destroy its covenants. 4. As the bonds for the purchase-money were given on the execution of the deed and not of the agreement, what was said at the signing of the latter could have no bearing upon the deed: hence as the question as to the vendee’s agreement to take the title at his own risk was submitted, without proper evidence, to the jury, such submission was held error. 5. Where the vendor, at the time of his conveyance, knew of the interest of others in the land, growing out of the original purchase, it was held, that he could not bind his vendee, who was ignorant of the facts, to assume all the risk of the title: and that his concealment of such facts was constructive fraud. 6. The defect of the plaintiff's title in this case was not covered by the statutory covenant contained in the words “ grant, bargain, and sell," of the deed, or by the express covenant of special warranty therein.
48 Pa. 80Clark's Executors v. Wallace (1864)
Interest on legacy charged upon land during life of testator’s daughter, •when payable to her children for their maintenance after her death. 1. Where a legatee, to whom the testator has placed himself in loco parentis, is a minor incapable of supporting himself, and for whom no special provision for maintenance is made, interest will be allowed on the legacy, although not payable until a future time, as upon the legatee's attaining full age, for the purpose of maintaining the legatee, and such interest must be paid whether it be particular and vested, or particular and contingent, or residuary and vested or contingent. 2. A testator bequeathed to a married daughter a sum of money for her separate use for life, the interest to be paid her annually during life, to remain a lien upon his real estate during her life and until her children became of lawful age: at her death the principal to be equally divided among her children if twenty-one years of age, but if not, then not to be paid until that time: interest to commence upon his legacies and bequests when his debts were paid, to be paid and borne by his two sons, devisees of his real estate, in equal proportions. The mother subsequently dying, leaving three children under the age of fourteen years, but no estate except this legacy and a small sum of money which was inadequate for their proper support, the father being without means or property: on application of their guardian for the payment of the interest on the legacy, it was held, (1.) That the devisees were liable for interest on the legacy from the time it became payable by the will, to be paid to their guardian for their past support and maintenance, and also for the annual payment of the interest thereafter for their future support and maintenance until they became of age. (2.) That the legacy was vested in the children, and was payable on their respectively arriving at the age of twenty-one years, in equal proportions.
48 Pa. 86Brooks v. Smyser (1864)
Error to the Common Pleas of Dauphin county.. This was a scire facias to August Term 1862, to bring in the administrator de bonis non cum testamentum annexo of John Brooks, deceased, as defendant, and to reverse a judgment which had been entered on a scire facias, issued on a mortgage to April Term 1848, No. 97. The mortgage, dated April 24th 1813, was given by John Brooks to Christian Kunkel and George Hoyer, administrators of Peter Kunkel, deceased, to secure the sum of $627.40, the interest of which was to be paid to Eve Kunkel, widow of Peter Kunkel, during her life, and the principal to her heirs after her death. It appeared, from the evidence, that this sum was a balance which remained out of the proceeds of the sale of the real estate of Peter Kunkel, after the payment of his debts. The mortgage and bond were in the name of the administrators for the use of' the heirs after the death of Eve Kunkel, to whom the interest was paid during her lifetime. Christian Kunkel, one of the administrators, died in 1823, and George Hoyer, the survivor, died in 1841, leaving Sarah Hoyer and Philip Smyser executors of his last will. John Brooks died in December 1845, having made a will, in which he appointed De Witt Clinton Brooks his executor, and directed that all his estate, real and personal, should remain for the use of his wife, and such of his children as should remain at home, and not to be sold, or disposed of, or divided without his wife’s consent. On the 8th of April 1848, the executors of George Hoyer made an informal assignment of the mortgage to Simon Cameron. The heirs of Peter Kunkel received their shares and executed releases in due form, which were recorded May 16th 1848. On the same day a scire facias was sued out on the mortgage in the name of Philip Smyser and Sarah Hoyer, executors of George Hoyer, deceased, who was surviving administrator of Peter Kunkel, deceased, for the use of Simon Cameron, against De Witt Clinton Brooks, executor of John Brooks, deceased. The defendant appeared to the suit, waived the service of the writ, confessed judgment in favour of the plaintiff for $665.04, with costs, and paid on account $165.04, as per credit entered thereon April 8th 1848, by Simon Cameron. In 1855 D. C. Brooks died. To January Term 1861, No. 83, a sci. fa. sur mortgage was sued out by Simon Cameron against Mary Brooks, administrator with the will annexed of John Brooks, in which the plaintiff suffered a nonsuit. The matter rested thus until May 9th 1862, when the death of D. C. Brooks was suggested, and on motion of Mr. Alricks and affidavit filed, a rule was granted requiring the plaintiff to show cause why the judgment of April 8th 1848, and all subsequent proceedings should not be stricken off and set aside. On argument this motion was refused, and the rule was discharged. To August Term 1862, No. 27, a scire facias was sued out to make Mary Brooks, administratrix of John Brooks, a party, and to reverse the judgment of April 8th 1848, above mentioned, and Avas served personally on Mary Brooks. Mr. Alricks appeared for Mrs. Brooks, and moved to set aside this sci. fa., and all pre\dous proceedings, Avhich motion was on hearing refused, and the rule discharged. The defendant then filed a plea in abatement, and subsequently on petition filed by Elizabeth Brooks, Horatio Hubbell and Rebecca H. his wife, and Julia P. Brooks, they were allowed to appear and make defence pro interesse suo. Pleas were then filed by the defendant and replication by the plaintiff, with rejoinders by the defendant. April 28th 1863, part of the defendant’s special plea was stricken out, and on May 5th 1863 the defendant pleaded non est factum. Under the ruling of the court below (Pearson, P. J.), there was a verdict and judgment for plaintiff for <$952.38, Avith costs. On the trial the plaintiff offered in evidence the record of the scire facias to April Term 1848, No. 97, which was objected to, because there were no legal parties plaintiffs, and that if the legal title to the moneys secured by the mortgage was in the estate of Peter Kunkel, deceased, none but the representatives of Peter Kunkel could sue; that De Witt C. Brooks had ceased to have any interest in the estate of his testator, and that his voluntary appearance before the time for issuing a scire facias on the mortgage Avas a fraud on his testator’s estate; but the court below decided that none of these reasons presented any objection to the receipt of the record, and admitted it in evidence. The mortgage of April 24th 1813, from John Brooks to Hoyer and Kunkel, administrators of Peter Kunkel, was then read, and the .plaintiff closed his case. There were several exceptions taken in the court below to the rejection of evidence offered by the defendant, and the ruling of the court on these points was assigned here for error. Several points were propounded by the defendant, on which the instruction of the court below was requested, and the answer of the court to all the points, as well as to the greater part of the general charge, were also assigned for error, by the defendant, after a verdict and judgment for plaintiff. But the principal question in the case in the court below, and in this court, was as to the right of the executors of the surviving administrator of Peter Kunkel to maintain the sci. fa. on the mortgage. The other errors assigned were not considered of much importance.
48 Pa. 96Hiester v. Green (1864)
Error to the Common Pleas of Lancaster county. This was an amicable action in debt between Cynthia E. Green and Isaac E. Hiester, in which the following case was stated for the opinion of the court:— The will of Evan Green, who died in 1854, was proved October 7th 1854, and contains, inter alia, the following:— “ Item 2. I will and bequeath to my beloved wife, Cynthia E. Green, the free and uncontrollable use of the dwelling-house and lot of ground in which we now reside, on Pront street, Columbia, with the avails and rents accruing therefrom, for and during the time she remains my widow, or during her natural life, whichever may first take place, she paying the taxes and keeping the same in good repair, also all the goods and furniture that she may choose for her own use and convenience, any surplus of furniture to be sold at public vendue with her free will and consent, and the amount of sales applied to the same purposes as any other part of my personal property.” “ Item 5. I will and bequeath to my son, Amos S. Green, my brick house and lot of ground in which we now reside, he to receive the same from and after the widowhood or decease of my said wife, as specified in item second.” May 20th 1857, the following paper was executed by Cynthia E. Green: “Whereas, in and by the second item of the last will and testament of Evan Green, of the borough of Columbia, in the county of Lancaster and state of Pennsylvania, proved October 7th 1854, in the register’s office, in the county of Lancaster, it is provided as follows:— “ ‘ Item 2. I will and bequeath to my beloved wife, Cynthia E. Green, the free and uncontrollable use of the dwelling-house and lot of ground in which we now reside, on Pront street, Columbia, with the avails and rents accruing therefrom, for and during the time she -remains my widow, or during her natural life, whichever may first tak'e place, she paying the taxes and keeping the same in good repair, &c.’ Now, I, Cynthia E. Green, the devisee above named, for and in consideration of the payment to me yearly and every year during the continuance of my widowhood, of the sum of one hundred dollars lawful money of the United States, by Amos S. Green, the son of my deceased husband, Evan Green, do hereby release unto the said Amos S. Green, all the right, title, and interest which, under the above-recited item of the will of Evan Green, I am entitled to claim or hold in the dwelling-house and lot of ground therein described. “Witness my hand and seal, this 20th day of May, Anno Domini one thousand eight hundred and fifty-seven. Cynthia E. Green, [seal.] Witness present: Samuel Evans, SelinA G. Slaymaker.” “ Acknowledged before Samuel Evans, a Justice of the Peace, May 21st 1857, and recorded October 4th 1860, in the recorder’s office of Lancaster county, in Record Book Z, vol. 8, p. 629, &o.” Afterwards, on the 4th day of October 1860, Amos S. Green executed to Isaac E. Hiester, a mortgage on said house and lot for $2000, which was recorded the same day in mortgage book Ho. 16, p. 253. On the 8th day of April 1861, Mr. Hiester issued a scire facias on said mortgage to April Term 1861, Ho. 239, and obtained judgment August 26th 1861, on which was issued a levari facias to Hovember Term 1861, Ho. 95, and alias levari facias to January Term 1862, Ho. 21, on which the sheriff sold the said house and lot January 4th 1862, as the property of Amos S. Green, to Isaac E. Hiester, and executed and delivered a deed for the same March 21st 1862. If upon these facts the court should be of the opinion that the said Cynthia E. Green is entitled to recover from the purchaser at the sheriff’s sale $100 per annum, the consideration mentioned in the release to Amos S. Green, then judgment to be entered in her favour for such sum as she may be entitled to (nothing having been paid since May 20th 1861, but the said $100 per annum being paid by A. S. Green to that date), otherwise judgment to be entered for the defendant. The costs to follow the judgment, and either party to be allowed to take a writ of error from the Supreme Court without oath or bail. The court below, on argument, filed the following opinion:— “ The decision made by a majority of the Supreme Court in Heas’s Case, 7 Casey 293, we think governs the question involved in this case. It resembles that case in its features as well as general character, according to the view taken by the court in that case. On one side it is an executed conveyance, so as to pass the title, and on the other it remains executory for the payment of the money. The intention of the parties, that it was to remain a charge on the land, we think is as clearly manifested in the case before us as in the case referred to. Heither do we think that it is a case which falls under the ruling of Sweigart v. Beck’s Administrators, 8 S. & R. 299, demanding an apportionment of the yearly demand secured by the agreement, and holding the purchaser only liable for the amount which had accrued since the day of sale. We therefore direct judgment to be entered for the plaintiff for the two yearly payments now due, viz., $200.” And this was the error assigned here by the defendant.
48 Pa. 103Wike v. Aurandt (1864)
Construction of will. — Liability of husband’s estate for wife’s money received by Mm during coverture. A testator gave to his daughter an equal share of his estate, with the rest of his children, and directed the one half to be paid to her husband, and the other half to remain in his lands devised to his sons, until after her death, the interest of which was to be paid to her yearly for life, and if the husband survived her, to him for life: the husband died after receiving the portion directed to be paid to him, and some interest upon the other portion. In an action by her against his executor for the amount received by him, it was held, that the husband took the amount directed by the will to be paid him, absolutely and not in trust for his wife, and that she was entitled to recover only the interest upon the portion bequeathed in trust for her, which he had received.
48 Pa. 107Wilson v. Cochran (1864)
Vendee of real estate bound by known encumbrance or easement. — Right of vendee to detain purchase-money. 1. A purchaser with a covenant of general warranty cannot, before eviction, detain purchase-money on account of a known encumbrance or defect. 2. Whilst a right of way successfully assorted against a vendee may be a breach of covenant of general warranty, if the purchaser have bought without notice of it, yet the law is that he shall perform his engagements whenever his knowledge and the state of facts continue to be the same they were at the date of the purchase.
48 Pa. 113Jack v. Morrison (1864)
Parol contract to pay debt of another, when not enforced.--Contract not inferred from mere endorsement of negotiable paper. 1. A parol contract of guaranty that a third party will pay his note, the amount being over $50, cannot be enforced because of the Act of Assembly of 29th April 1855, requiring an agreement or memorandum in writing or a note thereof, to bind one to answer for the debt of another of that amount. 2. The defendant’s endorsement, after the plaintiff’s, on the note, is not such a note in writing, for it imports only an endorsement of commercial paper, and makes him liable as an endorser, only to subsequent, and not to prior, holders of the paper. ' 3. But wliere the drawer of the note had placed other notes in the hands of the endorser, to indemnify him against this very debt, from which a certain sum was realized, held, that the plaintiff, the holder of the note, might recover that sum on the common money counts.
48 Pa. 118Prescott v. Burgess of Duquesne (1864)
Error to the Common Pleas of Allegheny county. This was an appeal from the judgment of a justice of the peace, in an action of assumpsit brought in the name of John Long, for the use of the Burgess and Council of Duquesne Borough, against Charles H. Prescott, to recover the fees or charges for wharfage which the borough was authorized to levy and collect from transporters landing their goods on the public wharves. After the appeal, and while the case was at issue, on motion of the plaintiff’s counsel, the court struck the name of John Long from the record, leaving the case stand: “ The Burgess and Town Council of Duquesne Borough v. Charles H. Prescott.” This was done without the knowledge or assent of the defendant or his counsel. On the trial in the court below, the plaintiffs gave in evidence two Acts of Assembly. The first was passed on the 6th of April 1850, authorizing the borough of Duquesne to construct a wharf, and to charge and collect wharfage for boats, rafts, &c., landing at the same, and requiring that the amount of wharfage so charged and collected, should be applied to the purpose of establishing and maintaining said wharf. The other act was passed on the 27th day of April 1852, and authorized the borough to issue bonds to be expended for the purpose of grading and protecting the hank of the river, and deepening the harbour, and to levy and collect wharfage from boats and rafts landing at the wharf. They also gave in evidence an ordinance passed by the borough authorities, on the 22d of April 1854, prescribing the amount of wharfage to be charged. They also gave evidence showing the amount of work done by the borough, and the amount of bonds issued. They then offered John Long as a witness to prove the amount of wharfage due by the defendant. This was objected to by defendant’s counsel, on the ground that John Long was a party to the suit; or, at all events, that he was so at the irupetration of the writ, and was therefore incompetent. The court, however, overruled the objection, and admitted the witness to testify. The testimony of this witness showed that the defendant’s raft, instead of being landed and tied up to the shore, was anchored out in the stream some fifty or sixty feet, when there was water to float it, apd that when the water fell it lay upon the gravel in the bottom of the stream. The defendant gave evidence to show the landing in an unsafe condition, by reason of refuse matter having been permitted to be thrown into and along the bank of the river; and contended that taking the whole of the evidence in the cause together, there was no such establishment and maintenance of a wharf shown as was contemplated by the Acts of Assembly, and that therefore there could be no recovery by the plaintiffs. The court, however, instructed the jury “that if the plaintiffs had shown that they had prescribed and designated the limits or boundaries, and prescribed rates and regulations, and constructed any conveniences or accommodations whatever for the accommodation of the public, it was sufficient; and that the state and condition of the wharf was immaterial so far as regards the right of the borough to collect wharfage for landing at it.” To this charge, as well as to the answers of the court to certain points put by defendant, embodying the defence above mentioned, the defendant’s counsel excepted, and a verdict and judgment having been rendered for the plaintiffs, this writ of error was sued out. The errors assigned were to the admission of Long as a witness, and the refusal of the court below to affirm the points of defence above referred to.
48 Pa. 121Gallagher's Appeal (1864)
Appeal from the Common Pleas of Armstrong county. This was.an appeal by Jane Gallagher, from the decree of the court below distributing the proceeds of the sheriff’s sale of the real estate of Joseph Gallagher. The case was this: — Anthony Gallagher, father of Jane, made his will, dated 20th August 1858, and died in April 1856. The will was proved and registered 18th April 1856, and contained the following bequest: “ I bequeath and devise to my daughter Jane Gallagher two hundred dollars, to be paid by my son Joseph Gallagher within one year after my decease. One hundred thereof in money, and the remaining one hundred dollars in horses, cattle, sheep, or other stock, at fair prices. And I also direct that my said daughter Jane shall have the right to keep one cow and six sheep on the farm on which I now reside free of charge, so long as she remains with my said son Joseph Gallagher.” The residue of his estate, real and personal, with the exception of a few small bequests, he gave to his son Joseph Gallagher, whom he appointed sole executor. No letters testamentary were ever taken out, but the evidence was clear that Joseph Gallagher took possession of the whole personal estate, and sold and used it for his own benefit before the entry of the judgment under which his real estate was sold. The land, from the sale of which the fund for distribution arises, became thus vested in Joseph Gallagher, and was sold by the sheriff upon a judgment entered by Timothy Moshier, and the money brought into court for distribution. The question before the auditor was,this: Was the land sold by the sheriff either primarily or contingently liable for the payment of the legacy to Jane Gallagher ? And if the latter only, had the liability become fixed and absolute at the date of the sale by the happening of the contingency ? The auditor was of the opinion that it was the intention of Anthony Gallagher to make his real estate either primarily or contingently liable for the legacy given to Jane, and allowed her claim with interest from April 18th 1857, distributing the balance to the proper lien-creditors. On exception to this report, the court below reversed the decision of the auditor, and awarded the whole fund to the plaintiff in the execution; which was‘the error assigned.
48 Pa. 123County of Allegheny v. Western Pennsylvania Hospital (1864)
Error to the District Court of Allegheny county. This Avas an action o’f assumpsit by The Western Pennsylvania Hospital against The Commissioners of Allegheny County, in •which the following case was stated for the opinion of the court: The Western Pennsylvania Hospital, the plaintiff above named, claims -to recover from the county of Allegheny, the said defendants, the sum of $480.58, with interest from the first day of July 1861, for the boarding, medical attendance, maintenance, and clothing of seven indigent insane persons, at their hospital in the city of Pittsburgh, namely: John Aughenbaugh, James Howe, Stephen Clancey alias John Doo, Mary Diamond, Catharine Sahren, William Laidecker, and William P. Snowdon. All of these patients were confined in the common jail of Allegheny county, immediately previously to the time when they were sent to the hospital, and all of them were insane. They were all of them sent to the Western Pennsylvania Hospital by the commis-. sioners of Allegheny county, without any commitment or order of court, at various times between the 3d day of September 1859 and the 21st day of July 1860. The commissioners of Allegheny county, on sending each of these insane persons to the hospital, sent also a note to the superintendent of the hospital, all of which notes were of substantially the same tenor, and one of which is in the following words :— “ Commissioners’ Office, “Pittsburgh, Allegheny Co., July 1st 1860. “Dr. Reed, Keeper of Pennsylvania Hospital: “ Sir: — You are hereby authorized to receive John Doo in your custody. He was imprisoned in said county prison about four o’clock. He is certainly insane,- and we have no proper place to confine him without abusing him and keeping him chained. You will take him in your custody, and treat him as is your custom, and charge said county your usual price. “Yours, respectfully, “John H. McElhennby, “Jonathan Brauef, “Z. Patterson.” The said John H. McElhenney, Jonathan Brauff, and Z. Patterson were, at the time when said insane patients were sent by them to the hospital, commissioners of Allegheny county, and acted as such in writing such notes, and sending said persons to the hospital. The county of Allegheny paid the Western Pennsylvania Hospital for the boarding, medical attendance, and maintenance of said insane persons in full to the 1st of October 1860. The commissioners having neglected or refused to pay the claim of the plaintiffs for which this suit is brought, the superintendent of the hospital returned or threatened to return said insane patients to the commissioners: whereupon, on the 6.th of October 1860, the commissioners of the county of Aliegheny sent a note to the superintendent of the Western Pennsylvania Hospital, of which the following is a copy:— “ Commissioners’ Office, Allegheny Co., “ Pittsburgh, October 6th 1860. “To Dr. Reed, Sup’t of the Western Penna. Hospital: “ Sir: — You. will please detain the persons now in your charge until further orders from the commissioners. “Yours, respectfully, “ Z. Patterson, “ Jonathan Braufe, “ Commissioners.” And the said order contained in said letter was not countermanded during the time that said patients remained in the care and custody of the plaintiff, and the said insane persons were retained in the custody of the Western Pennsylvania Hospital until the expiration of the time for which the charge in this case is made by the hospital. If the court is of opinion that the county of Allegheny is liable to the hospital for the cost of the care, medical attendance, and maintenance of insane persons sent to the hospital by the commissioners of the said county, and by reason of the undertaking of the commissioners, as such, to pay the hospital therefor, then judgment is to be entered for the plaintiffs for the sum of $430.58, with interest from July 1st 1861; but if not, then judgment' is to be entered for the defendants, the costs to follow the judgment, either party reserving the right to sue out a writ of error thereon. On argument, the court below gave judgment in favour off the plaintiffs for $430.58, with interest from July 1st 1861 and costs; which was the error assigned.
48 Pa. 127Randall v. Wait (1864)
Error to the Common Pleas of Erie county. Cleveland Randall brought an action of trespass against Seymour Wait, before a justice of the peace, to recover damages for taking and carrying away cértain personal property of the plaintiff, in which, on the 2d of March 1861, the justice gave judgment against the defendant for $23. On the 16th March Perry Devoe, as the agent of the defendant, came before the justice, and offered to give the plaintiff judgment for $10. Notice of this was given to the plaintiff, which was subsequently returned “served personally,” and the offer was refused. On the same day an appeal by defendant was entered, but neither plaintiff nor defendant were present at that time. On the trial in court, there was a verdict in favour of plaintiff for $10, whereupon the defendant’s counsel moved the court that judgment be entered on the verdict without costs, and that defendant’s bill of costs be set off against plaintiff’s verdict, and his bill before the justice, on the ground that the defendant had made the tender before the justice required by the Act of Assembly. On argument this rule was made absolute, which was the error assigned.
48 Pa. 130Heath v. Page (1865)
Error to the District Court of Allegheny county. This was an action on the case brought by John H. Page against Elijah Heath, to recover the excess of interest over six per cent., paid by him to the defendant, on a loan of $5000. The plaintiff alleged, and gave evidence tending to prove, that, in the winter of 1856, being greatly embarrassed in his pecuniary affairs, having judgments and mortgages against him amounting to some $35,000, and having real estate almost wholly unproductive, he applied to the defendant for a loan of money; that, on plaintiff agreeing to take one hundred shares of stock at par, amounting to $5000, in the Little Sawmill Railroad Company, which was entirely valueless at the time, the company being insolvent, the defendant agreed to loan him $5000 in money on receiving a mortgage from him and his wife for $10,000, on a large amount of real estate left to her by her father; that such was his necessity, that he was obliged to yield to this demand or suffer a great, sacrifice by having his own property exposed to sale by the sheriff; that he took this stock, worthless as it was, for the sake of procuring the loan of $5000, which he received, and gave the mortgage required, which was executed and delivered on the 20th Pebruary 1856, and recorded the next day for $10,000, payable in six years, with interest payable semi-annually; that failing to meet the interest promptly as it became due, and falling in arrears to a considerable amount, and finding it extremely difficult to raise the amount necessary to pay the mortgage when it should fall due, by reason of his continued embarrassment, another mortgage was given, including the arrears of interest on the first, and covering different property. This mortgage was dated the 19th of January 1858, executed by Page and wife for $11,057, payable in ten years from the 24th of November 1857. Satisfaction was entered on the first mortgage, when the second was recorded. This mortgage contained the usual provision, that on failure to pay the accruing interest for a given period it might be foreclosed, and the whole collected. The plaintiff fell in arrears with the interest on this mortgage also, whereupon the defendant placed it in the hands of his counsel, who brought suit thereon, and obtained judgment for $12,567.90. The writ was issued on the 20th of August 1861, and judgment entered on the 3d of September. Meantime negotiations were set on foot, and sundry propositions in writing passed between the parties, for the payment of the mortgage in land, which led to an agreement executed on the 28th of August 1861, by which Page and wife agreed to convey certain real estate therein described, to Heath, in full payment and satisfaction of the mortgage; and in fulfilment of this agreement, by deed dated the 13th of December 1861, and acknowledged the 31st of the same month, they conveyed the several pieces of property therein described, which were received by Heath, and satisfaction entered on the mortgage on the 14th of April 1862. The plaintiff alleged that the original transaction was a contract of loan, by which the defendant contracted for more than the legal rate of interest; that by taking advantage of his necessities, he compelled him to take this stock, which was utterly worthless; and therefore claimed to recover the excess in this action, the mortgage being, in effect, paid. The defendant took several grounds of defence :— 1. He insisted that the original transaction was a sale of stock by the defendant, and a purchase by the plaintiff for his own benefit and that of his son-in-law, for the purpose of enabling the former to become the president, and the latter the treasurer or secretary, of the company, and therefore the contract was not usurious. . , 2. That the giving of the second mortgage, and the entry of satisfaction on the first, amounted to a payment of the original indebtedness, and the usury, if any, being then complete, the plaintiff not having brought his action within six months from that period, was barred by the Statute of Limitations from recovery. 3. That taking land instead of money in payment of the second mortgage, the plaintiff took the risk of its depreciation, and the whole transaction was to be regarded as an exchange of stock for land, and consequently the original contract was not usurious, and the plaintiff ought not to recover. 4. That the true construction of the agreement of August 28th, and the deed of December 1861, was, that there was a mutual discharge of each party by the other of all liabilities arising out of their preceding contracts, and therefore the plaintiff, having released his right of action, even if he had any against the defendant, for taking illegal interest, cannot recover. 5. That, even if the written agreement and deed before referred to were not sufficient in themselves to show a release of the plaintiff’s right of action, yet, when coupled with the parol evidence of Mr. Keenan, who testified as to Page’s anxiety to “ have the whole controversy closed up,” the whole would operate as a settlement and compromise, and the plaintiff cannot recover. 6. That an offer to retransfer the stock before suit is brought is a necessary prerequisite to the plaintiff’s right to recover. 7. That the action should have been in debt and not in assumpsit. There were several points presented by counsel, but the main question in the cause was, whether the original contract between the parties was usurious or not. On this subject there was the testimony of a witness, together ■with the hooks of the company, that Heath had transferred the one hundred shares of stock in question to Page about the time of this transaction; as also the testimony of one other witness, who said: “ About the beginning of 1856, the defendant told me he had sold his stock to Mr. Page. I asked him at what price. He said he had sold it at par. I asked him how it was that he had sold it at par. He said, ‘I had to sugar it.’ I asked him what he meant by that. He said he lent Mr. Page a like amount in money, and took a mortgage on good real property for $10,000.” Another witness testified, “ that in the summer of 1856, Heath told him he had parted with his stock; that Page wanted to borrow some money, viz., $5000 — he had put his $5000 of stock with it, and made it ‘palatable, or sweetened it.’ I said, ‘you don’t expect Page to pay you $5000 for your stock ?’ He said he had it secured by mortgage on property in East Birmingham belonging to Mrs. Page, of the Ormsby estate, well worth the money; that he had Mr. and Mrs. Page for it in a mortgage on lots that were cheap at $10,000.” This witness fixed the value of the stock, in the fall of 1855, at from one to five dollars a share. The treasurer of the company at the time of this transaction, says he would not have given a dollar a share for the stock. He did not consider it worth anything. Other witnesses who were connected or acquainted with the affairs of the company were called to prove the worthlessness of this stock, and the insolvency of the company at that time. The learned judge before whom the cause was tried (PIampTON, J.), after stating the facts, charged the jury as follows :— “If you believe that this was a loan of money, viz., $5000, with this stock put in at its par value, viz., $5000, when in truth and in fact it was not worth more than from $100 to $500, for the purpose of covering up the true character of the transaction; this, taken in connection with the uncontradieted evidence that Page was greatly pressed for money — in very embarrassed circumstances — would, under the law as laid down by the Supreme Court in Fitzsimons v. Wallace, and many other cases, make the contract usurious; and, so far as this ground of defence is concerned, the plaintiff is entitled to recover. “ So far as the facts are concerned, this disposes of the whole case, as I am of the opinion that the testimony of Mr. Keenan is insufficient to prove any such admissions of the plaintiff as would amount to a compromise, or release of his right to bring this action. This being the only parol evidence relating to that question, it devolves on the court to determine whether, by the true construction of the different instruments of writing between the parties, the plaintiff is or is not entitled to recover. We shall reserve these questions of law for the determination of the court in banc. “ The plaintiff’s and defendant’s counsel, each, withdraws his first point, and the court overrules, pro forma, the other points presented by defendant’s counsel, which are reserved, and instruct the jury as follows :— “ If you believe, from the evidence, that the original transaction between'these parties was a contract for the loan of money, at a greater rate of interest than six per cent, per annum, and that this stock was put in by the defendant, taking advantage of the plaintiff’s necessities, at its par value, when it was almost worthless, then you may find for the plaintiff the amount fixed by the counsel on both sides, by the written agreement just read and filed, subject to the opinion of the court on the questions of law reserved, which are raised by the points presented by the counsel on both sides.” There was a verdict in favour of the plaintiff for $7400. Subsequently, the court in banc (Hampton, P. J.) delivered the following opinion:— “ The jury have very properly found that the original contract was usurious, and we are now to determine whether, on the questions of law reserved, the plaintiff is entitled to judgment. “The seventeen points presented by the learned counsel on both sides, so far as they have any legitimate bearing on the case, may all be reduced to three general questions, to wit:— “ Eirst, Whether the plaintiff’s right of action is barred by the Statute- of Limitations ? “ Second, Whether he has compromised or released his right of action? “ Third, Whether a payment in land is equivalent to a payment in money ? “ If any one of these questions should be decided against the plaintiff, he cannot recover, but if the law should be with him on all three, then judgment must be entered on the verdict. “ The first question arises out of the facts and circumstances attending the giving of the second mortgage and entering satisfaction on the first, and the construction of the agreement of August 28th 1861. “ The defendant’s counsel contends that this was a payment of the usurious interest, and from that time the statute began to run. If this position be well taken the plaintiff must fail, for the first mortgage was satisfied January 29th 1858, and this suit was not instituted till 1862. “ That the satisfaction of this mortgage was not understood or intended by either of the parties as a payment of the debt secured by it, is abundantly manifest by the uncontradicted evidence in the cause. More especially is the defendant precluded from making such an allegation by his written agreement under seal, dated 24th of November 1857, which expressly declares the object to be to release the lien on the mortgaged premises, to enable Page to sell and convey the same. And it is well settled, that so long as the debt secured by the mortgage remains unpaid, the entry of satisfaction on the mortgage will operate only as a release of its lien, and destruction of the remedy upon it, as was held in Fleming’s Executors v. Parry, 12 Harris 51, unless it was the intention of the parties that it should operate as an extinguishment of the debt. Hero the contrary is clearly and distinctly shown by the proposition of the defendant already referred to. “In Fleming’s Executors v. Parry, Mr. Justice Woodward said, Had the mortgage been paid the law would treat the bond as paid; and, satisfied on record, the mortgage, though not paid, was thenceforth gone and all remedies on it. But was the bond also null ? This depended on the understanding and intention of the parties as a jury should deduce them from all the circumstances in proof. The principle has been asserted in several cases that a change of securities does not necessarily work an extinguishment of the debt, and that extinguishment or satisfaction depends upon the agreement or intention of the parties, which must be referred to the jury as a question of fact. And in Richabaugh v. Dugan, 7 Barr 394, Mr. Justice Coulter says, ‘ It is the distinct agreement of the creditor to accept the thing in satisfaction and payment of the debt, which makes it good evidence under the plea of payment.’ This rule is now the settled law of the land, notwithstanding the construction given to the case of Musgrove v. Gibbs, 1 Dall. 216, by the defendant’s counsel. But it may be doubted whether, upon a careful scrutiny of that case, it will be found to be in conflict with the modern decisions. Ch. J. McKean’s illustration of the rule by Avhich they were governed in that case, is in perfect harmony with the later cases, when he says, ‘ It is well established that the receipt of one thing in satisfaction of another is a good payment, as the acceptance of a horse in lieu of a sum of money, or of a bond by a third person in discharge of a prior obligation.’ See, also, Jones v. Johnson, 3 W. & S. 276; Eby v. Eby, 5 Barr 440; Mason v. Wickersham, 4 W. & S. 100. “ It was not necessary in the present case to leave it to the jury to determine what the intention of the parties was, as that was fixed and determined by the written proposal under seal of the 24th of November 1858, by the defendant, and the compliance therewith by the plaintiff in giving the mortgage proposed to be taken. No evidence was offered by the defendant to show that the second mortgage was taken and received in payment of the debt secured by the first, and of course no such intention could have been inferred by the jury. “ The whole transaction can be regarded in no other light than as a change of securities without the slightest intention that it should work an extinguishment or satisfaction of the debt. “ Eor these reasons I am clearly of opinion that the Statute of Limitations did not begin to run when the first mortgage was satisfied. “Nor was the agreement of the 28th of August 1861, a payment of the debt, from ivhich period the running of the statute would commence. It was only a promise to pay, which was not fulfilled till the deed was executed and delivered, and satisfaction entered on the second mortgage, which was less than six months before this suit was brought. “ The law is therefore with the plaintiff on the first question reserved. “ Second. Did the plaintiff compromise, or in any way release his right to maintain this action ? “ It is not alleged that there is any express or positive proof on this subject, but it is contended that a compromise of all claims whatsoever, which either party might have against the other, is to be inferred from the evidence. “A compromise implies the existence of a dispute wherein one party claims something which the other is unwilling to yield. “ In such cases the parties sometimes submit their claims respectively to arbitrators, and bind themselves to abide by their award. Sometimes they settle the controversy themselves, by each agreeing to give up a part of his claim. And the settlement of a controversy has always been held a sufficient consideration to support the contract. Where a debt is due and certain, and the debtor able to pay, there is no ground for compromise; for in such cases a payment of a part will not discharge the whole, although the creditor may promise to release the residue, there being no consideration to support the promise. “ Here, neither the validity nor amount of the debt was ever disputed. The original contract being usurious, by the provisions of the Act of Assembly, Page might have claimed a deduction from the amount of the mortgage, to the extent of the excess of interest claimed, yet he did not choose to do so. The debt was fixed and certain, and had become due by the failure to pay up the interest, and there was therefore no controversy about the amount to be paid, nor the time of payment, and no propositions were made by either party on that subject. On the contrary, both parties treated it as a sum fixed and certain, to be paid to the last farthing. The only matter to be settled was the mode of payment, whether it should be in money or land at its cash value. The present defendant had the power to enforce the payment in money, hut he made the proposition to take land in payment at its cash value, and the only difficulty was to fix the valuation. After proposals on both sides to have the value fixed by third persons, the parties themselves agreed upon certain lots, that were to be conveyed and received in full payment and satisfaction of the claim within a certain time. And there was no attempt to prove, on the trial, that this land was not worth the amount due. If the defendant could have shown that it was not worth the amount of his claim, it might have been a very important fact in his defence. We are bound, therefore, to conclude that he did not abate one jot or tittle of his claim in taking land instead of money. The agreement of the 28th of August 1861 shows conclusively that the payment of the bond and mortgage was the only subject of treaty between the parties at that time : and that agreement was carried out to the letter. No allusion whatever is made to any claim that Page might have against Heath, and no expression used from which any such an inference could be drawn as that now claimed. “ But it is contended that the testimony of Mr. Keenan, taken in connection with the written agreement of August 1861, and the entry of satisfaction on the judgment obtained on the second mortgage, shows a compromise of the plaintiff’s right of action. “ After a careful examination of this testimony, which was accurately taken down at the time, I am unable to perceive any foundation for the assumption that the plaintiff surrendered his claim against the defendant. The only matter in hand was the removal of the encumbrances from the property to be conveyed. Nor can the phraseology employed in the entry of satisfaction, under all the circumstances, have the effect claimed for it by the defendant’s counsel. “ The construction of the language there employed must be referred to the agreement of August 1861, and the conveyance made by the plaintiff in pursuance thereof. The defendant was bound by his contract to satisfy all claims he had under said mortgage and suit, in consideration of the deed for the land; so that in doing so, he was only fulfilling his part of the agreement, as the plaintiff had performed his in making the conveyance. There is no evidence that the plaintiff was present or knew what language he employed, and it can hardly be pretended that the defendant could make any new contract for the plaintiff by any set of words he might see fit to employ. “ Taking the whole evidence, therefore, both written and parol, and giving it the broadest construction that can be claimed for it, I am utterly unable to perceive any intention or agreement, on part of the plaintiff to compromise or give up any claim he might have to bring and maintain this action. For these reasons I am of opinion that the law is with the plaintiff on the second question reserved. “ Third. The only remaining question to he considered, is whether a payment in land is equivalent for the purposes of this action to a payment in money ? “ This question involves the true construction of the 2d section of the Act of 28th May 1858, which is as follows:— “ ‘ That where a rate of interest for the loan or use of money exceeding that established by law shall have been reserved or contracted for, the borrower or debtor shall not be required to pay to the creditor the excess over the legal rate; and it shall be lawful for such borrower or debtor, at his option, to retain and deduct such excess from the amount of any such debt; and in all cases where any borrower or debtor shall, heretofore or hereafter, have voluntarily paid the whole debt or sum loaned, together with interest exceeding the lawful rate, no action to recover back any such excess, shall be sustained in any court of this Commonwealth, unless the same shall have been commenced within six months from and after the time of such payment.’ “To entitle the plaintiff to recover he must show, in the language of the law, that he voluntarily paid the whole debt or sum loaned, together with interest exceeding the lawful rate. Let us now inquire whether he has done so according to the true intent and meaning of the act ? “ That the payment was voluntary cannot be denied, as no judgment was obtained against him at the date of the agreement, viz., 28th August 1861, and the only question is, whether the conveyance of this land was a payment, under the Act of Assembly ? The defendant’s counsel contend that nothing but a payment in money will meet its requirements. “ In the first place it may be remarked that money is not mentioned as the only means of payment. We are therefore left to construe the word payment according to its legal signification. Payment of a debt can only be made, if so required by the creditor, in the legal currency of the country. This provision, however, is made for the benefit of the creditor, a privilege which he may waive, and in lieu thereof may agree to take any other commodity, in satisfaction of the debt, which, if he receives in payment, the debtor is as fully discharged as if the payment had been made in gold or silver. Such is, and ever has been, the common understanding of the business world, and such has been the decision of all our courts from the earliest period of our legal history. Payment of a debt may therefore be made in any kind of property, real or personal, which the creditor agrees to take as such: Richabaugh v. Dugan, 7 Barr 394. And it is the constant practice in our courts to give in evidence, under the plea of payment, the performance of any service, or the delivery of any article of property, to the plaintiff which he agreed to take in satisfaction of. his claim. “ By applying this rule to the case under consideration, we shall see whether or not it will avail the defendant. “ Heath held the mortgage of Page and wife for $11,057, dated the 19th of January 1858, payable in ten years from the 24th November 1857, on which a considerable amount of interest had accrued. The first proposition to take payment in land was made in writing by Heath, designating certain lots owned by Page and wife, at a valuation to be fixed by two competent and disinterested persons, one to be chosen by each party, and in case the referees could not agree, they to select an umpire, whose decision, or that of any two of them, should be final and conclusive. “ Next we have a proposition in the shape of an agreement, by Page and wife, dated the 10th of August 1861, offering to convey certain property, therein described, at a valuation to be fixed by two persons named, with privilege, in case of disagreement, to choose an umpire. On the same day Heath replied to this proposition by letter, declining their offer to have the valuation fixed by referees, but renewing his former offer to take thirty-two lots in a certain block, and one hundred and twenty feet off another lot. These negotiations were finally closed on the 28th of August by the written agreement of the parties, by which, after reciting the bond and mortgage, it was mutually agreed that the said Heath should receive, in full * satisfaction and payment of all claims and demands against said Page and wife under and by virtue of said bond, mortgage, and suit,’ certain real estate therein particularly described; and Page and wife agreed on their part to convey the same, clear of all encumbrances, in payment and discharge of the bond and mortgage. The conveyance was afterwards made and received, and satisfaction entered on the mortgage and judgment. “Now, after the express agreement of the parties, that this land should be taken in full payment and satisfaction of all the defendant’s claims under the mortgage, and that agreement fulfilled to the letter, it is gravely contended by the defendant’s counsel that it was not a payment under the Act of Assembly. If it was not a payment, what was it ? He proposed to take 'it in payment — he did take it in payment, and has not ventured to call a single witness to prove that it was not worth every dollar due under the mortgage. After all this, to allow him to escape from the legitimate consequences of his own solemn acts, by such a subterfuge, would be contrary to the plainest principles of law, of equity, and of common sense. For .these reasons I am of opinion the law is with the plaintiff on the third question reserved. “ June 25th 1864, the prothonotary is directed to enter judgment on the verdict in favour of the plaintiff, on payment of the verdict fee.” The defendant thereupon sued out this writ, and assigned here the following matters as reasons for reversing the judgment of the court below:— 1. The formal overruling of defendant’s points. 2. The refusal of the court to instruct the jury that if they were satisfied, from the written propositions of settlement, the written contract of 28th of August 1861, the deed in pursuance of it, the satisfaction of the mortgage of the 19th of January 1858, and the parol evidence in relation to the admissions of Page that the parties consummated said contract as a settlement and compromise of all claims upon either side arising out of the transaction of loan between them, their verdict should be for defendant; and that if the jury believe the bond and mortgage of 20th February 1856, were at the instance of the plaintiff surrendered and satisfied, and a new bond and mortgage, dated the 19th January 1858, given, covering other property, and with different terms of payment, such surrender and satisfaction of said bond and mortgage would amount to a discharge and payment of the original indebtedness, the usury, if any, would be then complete, and the plaintiff, having failed to bring suit within six months thereafter, would be barred by the Statute of Limitations from a recovery. 3. In instructing them “ that the satisfaction of this mortgage (of 20th February 1856) was not understood or intended by either of the parties as a payment of the debt secured by it, is abundantly manifested by the uncontradicted evidence in the cause. More especially is the defendant precluded from making such an allegation by his written agreement under seal, dated 24th November 1857, which expressly declares the object to be to release the lien on the mortgaged premises, to enable Page to sell and convey the same. The whole transaction can be regarded in no other light than as a change of securities, without the slightest intention that it should work an extinguishment and satisfaction of the debt. For these reasons I am clearly of opinion that the Statute of Limitations did not begin to run when the first mortgage was satisfied.” 4. In refusing to charge that the true construction of the contract of 28th of August 1861, and the deed of Page and wife of the 13th December 1861, which must be taken together, is, that as Heath discharged Page from all debts, claims, demands, and suits, arising out of said bond and mortgage of the 19th January 1858, upon condition that Page would give him a conveyance for the land agreed upon, the making of said deed, and the satisfaction of the mortgage, operated as mutual discharges from all further liabilities arising out of or connected •with the before-mentioned obligations. 5. In refusing to charge that the deed of Page and wife to Heath, being the voluntary act of the parties, in which they acknowledge the receipt of $12,500 as the consideration, which sum includes the value of the stock of the road aforesaid, must be taken as an acknowledgment, at that time, of the validity of the stock purchase. After such solemn recognition by Page and wife of the validity of said purchase of stock, and receipting for it in their deed to Heath as lawful money of the United States, it would be against equity and good conscience to allow Page to recover in this case, as it would be substantially allowing him to recover a portion of the very purchase-money which he acknowledges he received from defendant. 6. In refusing to charge the jury that Page having adopted the stock in question as a part consideration for the sale of land, cannot recover in this action without proof of tender to defendant of said stock before suit brought, and having, as appears by the stock-book and the evidence of Mr. Fetterman, assigned, in March 1862, three thousand dollars of said stock to third persons, and thereby put it out of his power to return it, it would be unconscionable to allow him to recover the amount he gave for it, and at the same time sell and pocket the proceeds or keep the same. 7. In refusing to charge the jury that plaintiff having failed to bring his action within six months from the 28th August 1861, the time when the contract for the purchase of the land was complete, he is not entitled to recover. 8. In refusing to instruct the jury that plaintiff has misconceived his action, debt being the only remedy to enforce a statutory obligation; and this action, being in case, cannot be sustained without showing a tender of the stock to defendant before suit brought. 9. In refusing to answer, in any way, defendant’s 11th point, viz., that Page having held the stock from 1856 until 1861, with full knowledge or opportunities of knowledge of its value, and having then appropriated it as part payment of the consideration of the land sold defendant, in the absence of evidence of fraud, or imposition in the contracts of 21st August 1861, he is not entitled to recover. 10. In refusing to charge that the contract of the 28th of August 1861, was a merger of all the others which preceded it; and as by this contract the defendant was to take land for the money and stock he had previously given the plaintiff, and was to stand the risk and hazard of the land depreciating below the value of said stock and money, he was equally entitled to any sum to which it might appreciate beyond the amount of the indebtedness of plaintiff, without being subject to the penalties or the liabilities of the usury law. 11. In rejecting the following offer: Defendant offers to prove by John Heath that Page, the plaintiff, repeatedly called and requested Judge Heath, the defendant, to take land in full satisfaction and settlement of the controversies and claims between them, and the final acceptance by Judge Pleath before the written propositions were made on either side, for the purpose of showing that the contract of 28th August 1861 was a contract of settlement of all controversies, and also for the purpose of showing that Page was the party who first proposed the giving of land in settlement of all claims.
48 Pa. 147Miranville v. Silverthorn (1865)
 Estoppel in pais, application of in support of parol purchase of land against assertion of legal title, and against Statute of Frauds. 1. The holder of the legal title to land is not estopped from asserting it, where the contract to which the alleged estoppel is sought to be applied is within the Statute of Frauds. 2. Thus, where the owner of land contracted by parol with another to build a barn, and to give him five acres of land and $10, and when the barn was nearly finished, the builder contracted with a third person to finish it, and take the land, in the presence of the owner, who said, he did not care who finished it, that he was ready to do his part, and did not care to whom he made the deed: it was held, That as neither of the contracts was so far performed as to take them out of the statute, they were void at law; and that the owner was not estopped from denying their validity by his acts and declarations, but was entitled to recover the land in ejectment on his legal title. 3. The remedy of the party injured by the breach of the parol contract for the construction of the barn was by an action for damages.
48 Pa. 151Pennsylvania Insurance v. Gottsman's Administrators (1864)
Effect of misrepresentation as to encumbrance in policy of insurance.— Notice of new liens, when necessary. 1. The stipulation in an insurance policy requiring the person whose property is insured to give notice to the insurance company of an encumbrance or levy made upon the property insured, is a substantive and material part of the contract. 2. Where an insurance was made upon the liquors and furniture of a public-house, and in answer to an interrogatory, the person whose property was insured stated, that the liens upon her real estate amounted to a certain sum, when they really amounted to a much larger sum; and the condition to the policy stated that the policy should be void, if the answers thus made were not true: Held, that such answer is a warranty, and not merely a representation. 3. Where two executions were levied before the policy took effect, and one afterwards — all of which liens lasted until the fire occurred by which plaintiff's property was burned — held, that notice ought to have been given to the insurance company, and that for the want of such notice the right to recover was forfeited.
48 Pa. 159Appeal of Benson, Phelps & Way (1864)
Execution. — Distribution of proceeds of sheriff’s sale. — Right of creditor interested in the fund to an issue to try disputed facts. — Powers of auditor, appointed to distribute fund in court. 1. A creditor interested in the proceeds of a sheriff’s sale is entitled to an issue for the trial of disputed facts, if his demand therefor is in time, the facts material if true, and their nature plainly set forth. 2. An auditor appointed to distribute money made on a specified writ, cannot include in his report other money not so derived: nor after he has filed one report, has he power to file a supplemental report, without a recommitment to him.
48 Pa. 161Memphis, Clarksville, & Louisville Railroad v. Wilcox (1864)
Estimates of engineer, when conclusive as between railroad company and, contractor. — Right of contractor, how affected by suspension of work.— Regularity of foreign attachment not to be questioned by defendant after appearance and plea.— Use party to action, when not necessary on the record. 1. The estimates and decisions of an engineer of a railroad company are conclusive in disputes with contractors, only where such is the positive stipulation in the contract: in every other case, the estimate of the engineer is to be tested by its correctness; and in an action against a company by a contractor to recover a balance due for a work, an instruction to the jury to rely on the engineer’s final estimates unless shown to be erroneous, is not error. 2. Where, during the progress of the work, a new agreement was made, releasing the contractor from completing his contract, and stipulating for what matters compensation should be made, but not providing for any damages for the suspension of work during the existence of the original contract, it was not error, after affirming the point of the defendants, that no such damages could be claimed, to add, that the question was not material, because of the supplemental agreement; for by it no compensation for such a cause was provided. 3. Though the plaintiff had been dismissed, and the work taken off his hands,'the company were not thereby released from paying for the work he had done, as stipulated in the supplemental agreement, what it was fairly worth: nor could his claim be restricted to what was coming to him under the final estimates of the engineer; nor, after their agreement to pay, eould the company claim to set off against any balance due the plaintiff the expense and loss incurred in completing his unfinished work. _ _ 4. Whether a foreign attachment in covenant will lie, not decided: the regularity of the attachment cannot be contested by the defendant after he has appeared and pleaded to the action. 5. The fact that there had been an assignment of the plaintiff’s claim, and a use in favour of another, was held immaterial to the company; their contest was with the legal party, who was plaintiff, and the absence ctf the use party could not prejudice their defence.
48 Pa. 168Burke v. Noble (1864)
Error to the District Court of Allegheny county. This was an action of assumpsit, brought January 1861, by William Noble against E. Burke and Thomas Barnes, partners trading as Burke & Barnes, W. P. Eichbaum, J. B. Dales, J. M. Atkinson, J. F. Gartree, A. O. Hawkins, and G. W. Neare, late owners of the steamboat Paul Jones, to recover a balance alleged to be due to him for goods and merchandise furnished to the boat. Certain credits were claimed, part of which were allowed, and-the others were referred to the jury, to determine under the evidence. But the main defence was based on the following receipt:— “ $120. “ Received, Pittsburgh, April 28th 1858, of G. W. Neare, one hundred and twenty dollars in full for all claim, detriments and demands against said G. W. Neare, as part owner of the steamer Paul Jones, said claim having originally been fifteen hundred and twenty-nine dollars and thirteen cents, and said Neare having paid me his one-seventh of said claim, I hereby agree to release him for ever from all or any claim on my account against him, as an owner in said boat, for the original bill I had against said boat. This settlement is based on the fact of the trustees paying creditors from the sale 50 per cent, on the dollar. If the sale realizes less than that amount, the said Neare is to pay W. Noble the difference, or if the sale pays more than that dividend, Npble agrees to refund to Neare the difference for his one-seventh. This settlement is to be understood as in full of Noble’s claim on G. W. Neare, as an owner in said steamer Paul Jones, but not the other owners. “William Noble.” This paper, the defendants claimed, was not only a release and satisfaction of the plaintiff’s claim against Neare, and a bar. to the action as against him, but that it also operated as a release of all the other defendants, and constituted a valid defence to the plaintiff’s action against them. The court (Williams, P. J.) directed a verdict against all the defendants except Neare, subject to the opinion of the court upon the question reserved, viz.: “ Whether, under the plaintiff’s release and receipt to G. W. Neare, the plaintiff was entitled to maintain this action against the other defendants sued with said Neare, or whether the same operates as a release of all the defendants, and of which they may avail themselves as a defence to the plaintiff’s action.” . Subsequently the learned judge delivered the following opinion:— “The equitable rule of not extending the words used in a release beyond the consideration, and of construing them according to the intention of the parties, was applied in McLaren v. Robertson, 8 Harris 125, and in Pierce v. Sweet, 9 Casey 151. This was a departure from the doctrine which prevailed in Milliken v. Brown, 1 Rawle 391, and inconsistent with the technical rule there adopted of construing a release of one of several joint debtors, on payment of his proportion of the debt as a release of all the others contrary to the intention of all the parties. And why should not the release in this case, as in McLaren v. Robertson and Pierce v. Sweet, be limited by- the consideration, and construed according to the parties ? The releasee has paid his proportion of the joint indebtedness just what in equity he would be compelled to contribute on payment of the whole indebtedness by one or all of the other joint debtors. What harm or prejudice has been done them by the payment of his proportion of the indebtedness and his release from the residue ? “As between the plaintiff and the joint debtors, the latter are severally liable for the whole debt; as between themselves they are only liable to contribute their respective proportions. The payment by the releasee of his portion of the joint indebtedness has not increased the liability of the others to the plaintiff. So far from prejudicing them, it has diminished their several liability to the extent of the payment. And as none of the joint debtors are insolvent, the release of one, on payment of his full share of the debt, has not increased their liability to each other for contribution. They will not be compelled to pay the plaintiff any more than they would be compelled in equity to contribute, if the releasee had paid the whole debt. Why, then, should the release operate as a discharge of their portion of the joint indebtedness? They were not parties to it. They paid-no part of the consideration; they are not prejudiced by it, and it was not intended as a discharge of their liability. It seems to me that the true rule of construction applicable to such a release is the one adopted in the cases first cited, viz.: That the words used ought not to be extended beyond the consideration, and should be construed according to the parties. This ought to be regarded as the cardinal rule of construction, and should be applied in all eases where it can be done without prejudice to the just rights of others. Accordingly, in the more recent cases, the courts, in order to carry into effect the intention of the parties, have moulded and limited the general words of the release, and construed them as a covenant not to sue, whenever it could be done, so as to allow creditors to release one of the several joint debtors without discharging their rights and remedies against the others. Why, then, may we not mould and limit the general words of this release, and construe them to be an agreement not to sue, in order to prevent them from operating as a discharge of the other joint debtors ? The technical rule, sanctioned by a.majority of the court in Milliken v. Brown, if applied here, would work.injustice to the plaintiff, who has done no act to the prejudice of the defendants, even if they are compelled to pay the residue of the joint indebtedness. It is no more than they would be bound in equity to contribute; and if the releasee was indebted to them for payments or advancements on joint account, the release has not prejudiced any of their rights in this respect, or prevented them from proceeding against him for contribution. The release is not a technical release under seal, and in England, and in most if not all of the other states of our Federal Union, it would not operate as a discharge of the other joint debtors. Why should it have a different effect here, contrary to the intention of the parties, and the manifest justice of the case ? It will not, if we are at liberty to apply the equitable rule sanctioned in McLaren v. Robertson and Pierce v. Sweet, instead of the technical one adopted in Milliken v. Brown. “ It will then operate here, as elsewhere, as a discharge of the releasee, but not of the other joint debtors. This will give effect to the intention of the parties. “ Let judgment be entered on the verdict in favour of the plaintiff against the defendants, with the exception of George W. Neare, for the amount found by the jury, with the interest, from the date of the finding, and in favour of the said George W. Neare, on payment of the verdict fee.” The entry of this judgment on the point reserved was the error assigned in this court.
48 Pa. 176Eakman v. Sheaffer (1864)
Declarations of agent or tenant, inadmissible in ejectment to affect title of landlord or owner. — Proper form of bill of exceptions. 1. The declarations of a party in possession of land, as to the extent and boundaries of his claim, are evidence to affect himself: but testimony of the declarations of a tenant, or of an agent, outside the scope of his agency, as to a boundary, is not evidence to affect the title of the landlord or owner: still less, where the agent or tenant is in possession under an executor of a former owner. 2. Where testimony received, under objection, is to be brought up on writ of error, it is the duty of counsel to see that it appears in full, and under the certificate of the judge; and where, in a court of error, it is alleged that the objectionable testimony was offered as rebutting to the declarations of the same witness, under examination by the opposite party, the fact should appear in the bill of exception; and, where it does not, the deficiency cannot be supplied by abstracts of other testimony, not given in full, in the paper-books. .3. If a juror impannelled in the trial of a cause is discovered to have sat as a juror on a former trial of the same cause, the objection should be forthwith made: if not, and the party takes his chance of a verdict, he cannot afterwards complain.
48 Pa. 178Phillips v. Phillips (1864)
Error to the District Court of Allegheny county. This was an action on the case by George Phillips and others, minor children of Thomas Phillips, and grandchildren of David Phillips, deceased, by their next friend Enoch Phillips, against Nelson Phillips, Evan E. Phillips and others, to recover damages for the obstruction of an alleged right of way which the plaintiffs claimed over a piece of land in which Nancy Phillips held a life estate, with remainder in fee to Nelson Phillips, one of the plaintiffs. David Phillips, the father of some of the defendants, and grandfather of the plaintiffs, was in 1841 the owner of about one hundred and fifty acres of land in Snowden township, on which he resided with his family. He had three sons, Thomas, Nelson, and Evan, and three daughters, viz., Mary Ann, Amanda, and Lucinda. The two latter were married, one to a Mr. Larimer, the other to Mr. Anderson; while Mary Ann remained unmarried. Thomas married in 1829, and some time afterwards his father put him on one part of his land, which had certain metes and bounds, containing about forty acres. But at what particular time he first went on this land the witnesses were not agreed; some fixing a much earlier period than others. The latest time mentioned by any of them was about 1842 or 1843; but he lived on a six-acre lot, which subsequently formed a part of the forty acres, for several years before 1843. This forty-acre tract, according to plots given in evidence, lay between two public roads. The upper road, as it was called, ran along his line for some distance, and then branched off; one branch leading to Pittsburgh, and the other to a village called “Library,” and thence to Pittsburgh. The other or lower road, called the “Baptist Church Road,” ran about twenty rods from his line on the opposite side of his land, and past his father’s house, thence to Library, and beyond that to the church. Thomas first moved into an old house, but subsequently built a new one, in which he lived until his death in 1855. This house was some distance from the dividing line between him and his father, on that side of his land toward the Baptist Church Road and his father’s house. Nearly all the witnesses concurred in saying that from the time he first moved on this land until his death, he used a privaté road from his house across his father’s land to the Baptist Church Road, near his father’s house, from twenty to twenty-five years, for going to mill, market, church, hauling c.oal, &c. Some of the witnesses testified that this road at an early period was fenced-on both sides from his line to the public road, and that after-wards the old man took away a portion of the fence, and erected a water-trough for the purpose of watering his stock. After that, gates or bars were put up at both ends, viz., at Thomas’s line, and at the public road. These were kept up most of the time, but sometimes, the witnesses testified, there were neither bars nor gates.- The ground over which this road passes is a ravine, not fit for cultivation, and the lot is small, containing about an acre and a half. In 1855 Thomas died, leaving a widow and a number of children, the plaintiffs in this action, who continued to reside on the place, and to use this road without molestation until December 1862, when three staked and ridered fences were put across it, one at the road, one at Thomas’s line, and one midway between. David Phillips died in October 1856, and his widow still lives in the house where David lived and died. In addition to the foregoing evidence, the plaintiffs introduced the following agreement:— “Article of agreement, made and entered into this ninth day of July, A. D. 1855, by and between David Phillips, of Snowden township, Allegheny county, and state of Pennsylvania, of the first part, and Loami McLarimer, on behalf of the widow and heirs of Thomas Phillips, deceased, of the second part, witnesseth: That the said David Phillips, for and in consideration of the surrender and giving up of a promissory note for the sum of three hundred and fifty-nine dollars, dated May 21st 1845, given by the said David Phillips to the said Thomas Phillips, as well as other good causes and consideration, do hereby promise and agree that the widow and heirs of the said Thomas Phillips, deceased, shall and may continue to occupy and reside upon the premises and tract of land occupied by the said Thomas Phillips, at and before the time of his death, containing about forty acres, for and during the natural life of him the said David Phillips, he the said Larimer, or they the said widow and heirs, yielding and paying unto the said David Phillips, during his lifetime, the yearly rent of ten dollars, and paying all taxes that may be assessed on said land; and at the death of the said David Phillips, they, the said heirs of the said Thomas Phillips, shall hold a,nd possess the said tract of land to them and their heirs and assigns in fee simple. Witness our hands and seals the date above written. “ David Phillips, [l. s.] “ L. McLarimer. [l. s.] ■ “ Attest: Joseph Phillips. “ Proved before Alderman Steel, October 4th 1859, by Joseph Phillips, and recorded the same day.” They then gave evidence showing that the defendants had built the fence complained of, and closed their case. The defendants contended the plaintiffs had no right to the use of the road claimed, and that they were justifiable in closing it up. They gave evidence without objection showing that the plaintiffs or some of them abused their right, if they had any, by leaving the gates or bars open when they passed through, and alleged this to be a justification of their act in fencing it up. They also gave some evidence tending to show that before the present road was used, Thomas Phillips used a road over another part of the land of David Phillips, and contended that the plaintiffs had shown no right, either by prescription, grant, or necessity to use this road. In addition to the foregoing evidence, they also introduced the will of David Phillips, made in 1853, and proved in October 1856, in which he devised the homestead, with thirty and a half acres of land to his widow, certain privileges to his unmarried daughter, Mary Ann, and after the death of his widow, the same to be divided between Nelson and Evan, two of the defendants, they paying certain legacies to Thomas and their sisters. After disposing of the homestead he went on to make the following dispositions, viz.: “And further, I give and devise unto my son Thomas Phillips that part of my farm on which he now lives, containing forty acres, with the improvements, goods, chattels, &c., appertaining, for him, his heirs and assigns, to have and to hold for ever. And also unto Nelson Phillips I give and devise that part of my farm on which he now lives, containing forty acres, with the improvements, for him, his heirs and assigns, to have and to hold for ever. Also, I give and devise unto Evan Phillips that part of my farm on which he now lives, containing forty-one acres, with the improvements, for him, his heirs and assigns, to have and to hold for ever.” , Then, after making some provisions in regard to the farming of the thirty and a half acres by Nelson and Evan, for his widow and daughter Mary Ann, he made the following conditions, viz.: “ In consideration of these donations, all claims of either or any legatee shall be satisfied in the above gifts, which shall stand in lieu against all such claims arising or to arise by said legatee.” The plaintiffs claimed that taking all the evidence to be time, they were entitled to recover. That taking into consideration the evidence as to the use of the road, with the knowledge and consent of the father, the will of David Phillips, the article or deed of the 9th July 1855, and all the other facts in evidence, they had established a clear and indisputable right to the use of this road. On the trial, in the court below, the plaintiffs’ counsel offered to prove by James Boyd that Hiram McCabe, one of the defendants, had told him that David Phillips told McCabe that he had granted this right of way to Thomas Phillips and his family. To this evidence defendants’ counsel objected, because it was an attempt to prove a parol grant of a right which could only be created by deed; but the court overruled the objection, and sealed a bill of exception. Under the instructions of the court, there was a verdict and judgment against Nelson Phillips and Evan E. Phillips for $250, and in favour of the other defendants, Mary Ann Phillips and Hiram McCabe, whereupon this writ was sued out by -Nelson and Evan Phillips. The errors assigned in this court were these:— 1. Admitting evidence of the declarations of McCabe, one of the defendants, as to admissions of David Phillips, deceased. 2. Instructing the jury as follows: “ At an early period after the marriage of Thomas, he (meaning David Phillips) placed him on this forty-acre tract, now owned by his children. Thomas built a two-storied frame house on it, and occupied and used it as his own, without paying any rent for it, so far as we are informed, down to the period of his death.” 3. Instructing the jury as follows: “ Now, if the paper of July 1855 had not been made, it will hardly be pretended that the plaintiffs would not be entitled to the use of this road as an appurtenance to the land devised, after its use for so long a period, by and with the consent of the testator.” 4. Instructing the jury as follows: “ If it be argued that Thomas was a mere tenant at will of his father, and therefore could acquire no right by user, still having put Thomas on this land some twenty odd years before, allowed him the free and unrestricted use of this road during all that time, it may be regarded as a privilege which, by a fair construction of the will, would pass with the land.” . 5. Instructing the jury that “the present plaintiffs, taking under the will of David Phillips, are to be regarded as purchasers, and entitled to the same right as if they held under the deed of their grandfather; and the agreement of the 9th July 1855 can in no way curtail their rights under the will.” 6. Instructing the jury that “the will was of no validity until the death of the testator, which took place some time after the date of this paper, so that even if the latter had actually reserved this right of way, the will, taking effect afterwards, would have conferred it on the devisees.” 7. Instructing the jury as follows : “ These authorities (cited in the charge) abundantly show that if the plaintiffs’ claim rested alone on the paper of the 9th of July 1855, it would be fully sustained by that instrument, provided the evidence be sufficient to satisfy the jury that this road had been used for a great many years by Thomas Phillips, and was necessary and convenient for the use and enjoyment of the land.” 8. Charging the jury as follows: “ The plaintiffs have a right to stand on the will, and claim all the rights and privileges it gives them.” 9. Charging the jury as follows: “ When the father came to make his will, what seemed to be his leading object? Evidently to confirm simply the disposition he had long since made of by far the greater portion of his estate, by leaving to each one of his sons the portion long since allotted to him, and of which they had for many years been in possession.” And in charging the jury, in the same connection, as follows: “ I cannot permit myself to doubt that he intended to confer on, or rather to confirm to Thomas and his two other sons, the portions of his estate long since given to them, with all the incidents, privileges, and benefits enjoyed by them.” And in telling the jury that this construction was in strict accordance with the letter and spirit of the will and the writing of July 1855, and the conduct of all the parties until a very recent period. 10. Charging the jury as follows: “If you are satisfied, from the evidence, that Thomas and his family were put on this place many years ago by his father; that he used this road continually for over twenty years with the knowledge and consent of his father; that it was so used till the death of both the father and the son; and since that by Thomas’s children, with the knowledge and consent of those devisees having an interest in the land over which it passes, without let, hindrance, interruption, or objection, you may find a verdict against such of the defendants as built the fences across this road.” And, 11. In not instructing the jury that, taking all the evidence in the cause together, the plaintiffs below had not established the right of way claimed, either by grant, by prescription, or from necessity, and were therefore not entitled to recover in this suit.
48 Pa. 187Warner v. Henby (1864)
Error, to the Common Pleas of Qambria county. This was an ejectment by Elias Henby against Anthony Warner and William A. Murray, for a tract of land in Jackson township, containing four hundred acres. Murray disclaimed title, and when the cause was called for trial allowed judgment to be entered against him, but issue was joined between Henby and Warner. To sustain the issue on his part the plaintiff gave in evidence a warrant to John Clark, dated 30th of November 1793, for four hundred acres, and a survey dated 1st May 1791, of four hundred and twenty acres, and allowance. The title was then shown out of the Commonwealth, and in John Clark, the warrantee. This evidence was followed by a deed of Thomas Jackson and wife (objected to by defendants, and admitted under exception), dated 30th November 1840, to Philip Beamer; a deed from Philip Beamer and wife to Frederick and Adam Fouse, dated 23d January 1846; by a deed from Frederick and Adam Fouse, dated 14th July 1846, to Owen MeAnally; deed of Owen McAnally, dated 3d April 1848, to John McAnally; a deed of John McAnally, dated 26th July 1854, to Hugh McG-lency; a deed dated 26th August 1854, from Hugh McGlency and wife to Francis R. Lenkfield; by evidence of the existence and loss of a deed from Francis R. Lenkfield to the Cincinnati and Chicago Railroad Company; by a deed from the Railroad Company, dated 5th April 1856, to William Butler, and by a deed of William Butler, dated 5th October 1856, to Elias Henby, the plaintiff. There was, however, no conveyance or other evidence connecting Thomas Jackson and. John Clark, the warrantee, or vesting the ownership of the warrant in Jackson; and the only evidence of title in the plaintiff was the claim and exercise of ownership exhibited in the different conveyances from the date of Jackson’s deed till the commencement of this action, a period short of' twenty years. The defence rested upon the evidence given of a tax sale of the John Clark tract. This evidence consisted of the assessment of the tract for 1854 and 1855; a sale of it on the 11th day of June 1856, to William Yaughn, and the deed of Charles D. Murray, Esq., treasurer, dated the same day, duly executed and acknowledged to Yaughn. The defendant also gave in evidence an article of agreement between him and William Yaughn, dated 15th December 1858, for the sale of the undivided half of the tract, for $425, of which a receipt on the agreement and the testimony of witnesses showed that $150 was paid by defendant at the time.. Under that agreement he was in possession, claiming the undivided half of the tract under it and the tax sale. The plaintiff met this defence with the following allegation, and the evidence adduced to sustain it: — 1. That the taxes for the years 1854 and 1855, for which the tract was sold, had been paid, and that the sale was therefore void, and-vested no right or title in William Yaughn which he could convey to the defendant; and, 2. That there was a fraudulent conspiracy between William A. Murray, the agent of the plaintiff, and William Yaughn, to prevent the redemption of the tract, and to consummate the tax title; and that therefore neither of them could be allowed to derive any benefit or advantage against the plaintiff from the sale; and, further, that Anthony Warner had notice of the fraud, and stands in no better situation. The court reserved the point as to the propriety of admitting the deed from Jackson and wife to Beamer, dated July 7th 1840, in the absence of proof of any conveyance from Clark, the warrantee, to Jackson, or any legal connection between the parties in reference to this land; and in reference to the other points instructed the jury as follows :— “ If the plaintiff has satisfied you that the taxes for which the land was sold had been duly paid; or however this was, has satisfied you that there was a fraudulent conspiracy between William A. Murray, the agent of the plaintiff, and William Vaughn, to prevent the redemption of the tract, and with that effect, and that Anthony Warner knew of that conspiracy when he contracted with Vaughn, your verdict should be for the plaintiff. If, on the other hand, the plaintiff has failed to satisfy you upon one or the other of these questions of fact, as we have stated them, your verdict should be for the defendant.” Under these instructions there was a verdict and judgment for plaintiff on the reserved point. Whereupon the defendant sued out this writ, and assigned for error the admission in evidence of the deed above mentioned, and the entering of judgment for plaintiff on the reserved point.
48 Pa. 191Stewart v. McQuaide (1865)
 Mechanics’ lien valid, when filed against unfinished building erected under contract, if full performance be waived by owner. Where a building erected under contract is substantially completed, full performance in minor particulars may be dispensed with by the party to whom it is due; and a mechanics' lien filed by the builders thereafter, is valid.
48 Pa. 195Stewart & Taylor v. M'Quaide, Kinter & Co. (1865)
Mechanics’ Lien Law. — Appropriation of payment, where two or more buildings are erected for same owner, a question of fact. — SettlemeTit admitting a general balance, the subject of a lien on either building. Where a mechanic has performed work on two properties of the same owner, and a settlement is made, acknowledging a certain balance due him, such balance may be a fair lien on’either one of the properties ; but it must be left to the jury to say from the evidence whether the balance was appropriated or not; and if not, how much of the balance was due upon the particular property against which the lien was entered.
48 Pa. 198McQuaide v. Stewart (1865)
Set off.— Claims arising upon distinct covenants, not the subject of.— Rent accrued under building lease, not a set-off, against mechanics’ lien, filed for erection. — Appropriation of payments. 1. Claims arising upon separate and distinct covenants in an agreement under seal, cannot be set off against each other. 2. Hence in an action on a mechanic’s lien, filed against a building, which had been erected by the plaintiffs under an agreement, also providing for a lease to them for a term of years, a claim for. rent accrued subsequently to the completion of the building cannot be set off. 3. Where the plaintiffs had also a claim on book account against the owner of tfie premises, which was unsecured, and there was no appropriation of the rent by the defendant, held, that they were entitled to appropriate it to the account in preference to the old debt secured by the lien; and that their books of original entries were admissible in evidence for that purpose.
48 Pa. 202Craig v. Brown (1864)
Error to the Common Pleas of Armstrong county. These cases came into court on appeals from a justice of the peace. The defendants were the appellants. Ho stamp was affixed to the justice’s certificate. In consequence of this, rules to strike off, or quash, were taken. One day after these rules were taken in open court, the appellants went into the prothonotary’s office and non grossed the causes while the rules were still pending, under the following rule of court:— “ Unless a declaration be filed in twelve months from the first day of the term to which an action is brought, a non pros, shall be entered by the prothonotary as matter of course, unless the parties otherwise agree by writing filed.” The appeals were entered March 2d 1863 ; the rules to dismiss or quash were taken March 18th 1864. On the 15th of March 1864 the non pros, was entered. On the 5th of June 1864 plaintiff’s counsel moved for a rule to show cause why the non pros. should not he stricken off. June 15th 1864, this rule ana the rule to quash the appeal were discharged. This writ was then sued out, and the refusal of the court to take off the non pros. and to quash the appeal for want of a stamp, were assigned for error.
48 Pa. 204Pulpress v. African Methodist Episcopal Church (1864)
Appeal from the Common. Pleas of Allegheny county. In Equity. This was an appeal by Benjamin Pulpress and others, from the decree of the court below, dismissing a bill in equity, filed by them against the African Methodist Episcopal Church of Pittsburgh et al. The bill was filed September 29th 1862, by Benjamin Pulpress, H. B. Williamson, and others, in their own right, and as trustees of the Mission Church; Abraham Cole, minister in charge of the same; John Williams, John Newman, and others in their own right, and as trustees of the John Wesley Church; Lewis Wood-son, Adam Watkins, and others in their own right and as trustees of Allen’s Chapel, Methodist Episcopal Church, against The African, Methodist Episcopal Church of the city of Pittsburgh, and John Peck Matthew Jones and others, trustees of the said corporation. The bill set forth that complainants are coloured people residents of Pittsburgh, or Allegheny City, and that the Mission Church, John Wesley Church, Allen’s Chapel, and the African M. E. Church are, with the exception of a small congregation in Allegheny City, named Brown’s Chapel, the only organized religious bodies of coloured people in said cities, whose duty and object it is to support and spread the gospel among the coloured people of said cities. That on the 15th day of February 1855, Rev. Charles Avery conveyed certain valuable real estate in the city of Pittsburgh to William M. Shinn, Esq., in trust, to be held for the use of said Avery during his life, and upon his decease to the use of the defendant, the African M. E. Church; the rents, issues, and profits of said real estate to be applied, under the direction of the official body representing said corporation, to the support of the gospel among the coloured people of the cities of Pittsburgh and Allegheny, and in trust to be conveyed to said corporation after the decease of said Avery, subject to the uses, trusts, and purposes aforesaid: and thereafter to remain a perpetual fund, the income and profits thereof to be applied as aforesaid. That Mr. Avery died about the — day of January, A. d. 1858, and shortly thereafter Mr. Shinn conveyed the premises to the African M. E. Church, subject to the uses, trusts, and purposes aforesaid: and that since the death of Mr. Avery, the said corporation has been in receipt of the annual revenue of the property, amounting to seven or eight hundred dollars, clear of expenses. That defendants, instead of performing faithfully the duties of the trust, by fairly and rateably distributing said revenues „among their several religious bodies of coloured people of said cities, according to their numbers and necessities, or by some general distribution thereof among the coloured people of said cities, for the support of the gospel among them, have claimed and exercised the right to dispose of said revenue at their own arbitrary discretion; and at first, and until very lately, did appropriate the whole thereof to their own use, by employing it to pay the salary of their own minister, or otherwise; which conduct was all the more a perversion of Mr. Avery’s bounty, because the defendant’s church comprises the most wealthy portion of the coloured people of the two cities, and less than any other of the four religious bodies, stands in need of extraneous aid to support the gospel among its congregation. That about eighteen months ago, the above-named Brown’s Chapel instituted proceedings in the Court of Common Pleas to compel defendants to appropriate to the use of the Chapel a part of the revenue received by them, and to file an account. The defendants denied their liability to account for their distribution of the fund, claiming the right to appropriate the whole to their own corporation. But the court decided that they were liable to account, and were bound to make a general distribution ; whereupon defendants, without filing an account, bought off Brown’s Chapel from further prosecution of the suit, by making it some small appropriation. That complainants have frequently requested defendants to make some general appropriation of the revenue they receive among the coloured people of the two cities, but defendants have invariably refused, except that about six months ago, after the decision in Brown’s Chapel suit, and on the peremptory demand of Allen’s Chapel for a part of the fund, they did offer to pay the minister of Allen’s Chapel $50 a year, which was declined. And they still refuse to make any appropriation whatever to the support of the gospel among the coloured people forming the congregation of the Mission and John Wesley Churches, not only on the ground of their absolute control over the fund, but, as complainants believe, on the ground of a difference in religious discipline and doctrine between themselves and complainants; which would be altogether contrary to the wishes of the founder, Mr. Avery, who took great interest in the spiritual welfare of the Mission and John Wesley Churches. The bill then charged that defendants had perverted and misapplied the trust fund, and should be removed. Among other interrogatories were the following, which defendants refused to answer :— Int. 4. — State what annual salary was paid to the pastor or minister of the African Methodist Episcopal Church just prior to the death of Rev. Charles Avery, and from what source it was raised ? And what annual salary has been paid him since the* death of Mr. Avery, and from what source raised ? Int. 5. — State what was the average annual amount raised just previous to the death of said Charles Avery, by the members of said church, to be applied by the board of trustees, to the support of the Gospel among the coloured people of Pittsburgh and Allegheny cities, and how and to what specific objects the same was applied ? Int. 6. — State what amount has been raised since Mr. Avery’s death, by said members, for the purpose aforesaid, and how applied specifically ? ■ The relief prayed for was, That an account may be taken of all and any the said trust property and effects, which have been received by defendants, and also an account of their application thereof; and that defendants may be decreed to pay what shall appear to be due from them in such account; and that they may be removed from being trustees under said deed; and that it-may be referred to a master, to report some other corporation or person as a fit trustee in their place; and that meanwhile, some person be appointed to collect and receive the trust estate and effects, and that defendants may be restrained from further interference therein; and also for a reference to a master' to report some just and equitable scheme of applying the trust fund, so as most fully and effectually to carry out the benevolent purposes of the founder of this charity, and that the court, if approving said scheme, will confirm the same, and establish permanently the said charity; and for other and further relief, &c. The answer denied that complainants, with exception of Brown’s Chapel, represent the only organized religious bodies in the two cities, whose duty, &c.; admitted the trust as set forth in the- bill, and that defendants have received the rents and income as charged; and have endeavoured in good faith to apply the same according to their best judgment and discretion in fulfilment of the trust, but have not, they admitted, rateably distributed said income among the several religious bodies of coloured people of said cities according to their numbers; and submitted to the court, whether the deed requires of them a pro rata distribution, or whether such, or any other general system of distribution can be devised which will be practicable, and at the same time preserve the spirit of the trust. Denied that “ defendants have ever claimed or exercised the right to dispose of the income at their own arbitrary discretion, but submitted that its distribution is committed to them as a sacred trust, for the purposes set forth in the deed, and that the time and mode of distribution for these purposes is left to their discretion without limit.” Admitted that “the greater portion of the income has been appropriated to their own preachers, because more than two-thirds of all the coloured people who have the gospel preached to them, hear it in their (defendants’) church; and also, because their preachers occasionally minister in both cities; and also because their congregation contribute mainly to the support of the poor of all the congregations, and are therefore comparatively less able to contribute to the support of the gospel: but denied that defendants have wholly excluded from participation in the fund, all the coloured people of the two cities not connected with their church; on the contrary, that they have appropriated a portion to the bishop’s salary and the expenses of Conference, whose duty it is to supply all the coloured congregations of the Methodist Episcopal Churches in both cities with preachers, which salary and expenses are properly chargeable to all the congregations, and said payment was for equal benefit of them all.” And also, that “ on February 1st 1862, the board of trustees of defendants’ church adopted resolutions to pay $150 to order of Brown’s Chapel to the minister in charge, and $50 to order of Allen’s Chapel to the minister in charge — both which appropriations were declined — though afterwards Brown’s Chapel reconsidered and accepted theirs.” Averred that “ according to defendants’ best judgment and discretion, the foregoing appropriations were just and proper, and better calculated to promote the objects of the trust than a larger appropriation to Brown’s and Allen’s Chapels, or than any appropriation to the Mission and John Wesley Churches. Further, that the Mission Church has been provided by Mr. Avery with a perpetual house of worship, free of expense, and that the John Wesley Church has never applied to defendants for an appropriation.” Denied that “ such proceedings were had in the suit by Brown’s Chapel, as alleged in the bill, and made the record therein part of the answer.” Admitted that “applications had been made from time to time for portions of the fund, and that officers representing different congregations might be admitted to the councils of defendants, to discuss the proper appropriation of the income, but defendants have declined to surrender the trust and discretion vested in them, at same time professing themselves ready to abide the decree of any court of competent jurisdiction.” Prayed that “ the court would devise some general order or decree for their direction, whereby they may be enabled to fulfil the trust reposed in them, without being subject to continual litigation.” Denied that “ defendants have been influenced in their disbursements by consideration of the doctrine or discipline of the applicants,” but have sought, in good faith, to exercise the discretion vested in them. Admitted that Mr. Avery was deeply interested in the welfare of the religious bodies represented- by complainants, but he did not choose to name them in connection with this fund, or constitute them co-trustees. In answer to interrogatories, defendants admitted the receipt of $2971.58, as follows: — January 28th 1859, $656.88; January 31st 1860, $677.47; January 22d 1861, $772.68; January 31st 1862, $810.55; and Referred to schedules E and E for their disbursements. Schedule E being the account filed in the suit by Brown’s Chapel, and schedule E the account of disbursements since that time. Defendants declined to answer 4th, 5th, and 6th interrogatories unless required by the court. To the refusal of the respondents to answer the interrogatories above mentioned, exceptions were filed, but on argument were overruled by the court. Subsequently the court dismissed the bill, there being nothing before the court except the bill, answer, and replication. This appeal was then taken, and the action of the court below overruling the exceptions and dismissing the bill were assigned for error.
48 Pa. 211McClurken's Appeal (1864)
Construction of will. — Legacy charged on life estate, and not on remainder, devised iu fee. Where lands were given by will to trustees, in trust to permit the testator's son to receive the rents, issues, and profits during his natural life, “ for the support of himself and family,” without being subject to the power and control of his creditors, but subject to the payment of $7000 of said rents, &c., in annual instalments of $1000, with power to make improvements and manage the property, followed by a devise to his grandson in fee: Held, that the sum of $7000 was a eharge only on the life estate, and not on the remainder.
48 Pa. 218Smith v. O'Connor (1864)
 Rule of law as to mutual negligence as between children and adults. 1. The rule of law as to mutual negligence between adult plaintiffs and defendants does not apply to the case of a child of tender years, who is to be held only to the exercise of that degree of care and discretion ordinarily to be expected from children of that age. 2. Negligence is a question of fact for the jury.
48 Pa. 223Douglass's Appeal (1864)
Appeal from the Common Pleas of Armstrong county. This was an appeal by James Douglass, administrator of J. M. Moore, from the decree of the Common Pleas distributing the proceeds of the sheriff’s sale of the real estate of Thomas McMasters. The case was this:— Robert Coulter entered up a judgment on the 3d of September 1861, against Thomas McMasters and William G. Watson, for $225.25. James Douglass, administrator, entered up his judgment, October 30th 1861, against Thomas McMasters and David Beatty, for $585.56. Coulter issued a fi. fa. to June Term 1862, against the defendants, which was returned by the sheriff, receipted by the plaintiff’s attorney for debt and interest, and with the sheriff’s endorsement, “money made.” Douglass issued an execution to December Term 1863, and a levy was made on McMasters’s real estate, which was sold upon a venditioni exponas to March term 1864. The sale took place January 30th 1864, and on behalf of the sheriff and purchaser, an auditor (Grier C. Orr) was appointed to distribute the proceeds of the sale. William G. Watson made application to the court, February 1st 1864, as surety 'of McMasters, for subrogation to the rights of Coulter, in his judgment. The subrogation was made on mere motion, without petition or affidavit of Watson, and without any evidence, except the admission of McMasters, to show that he was entitled to subrogation. On the strength of this substitution, Watson claimed the amount of the Coulter judgment. Douglass also claimed the money, to the exclusion of the Coulter judgment, the fund not being sufficient to pay both. The auditor distributed the fund to Douglass’s judgment. Watson excepted. The court sustained the exception, reversed the report of the auditor, and decreed the money to the Coulter judgment — which, with the decree for subrogation, were the errors assigned. The case was argued in this court, by Golden & Barclay, for appellant.
48 Pa. 226Gordon v. Gordon (1865)
Act of March 9th 1855, relative to divorce, construed.— What conduct warrants a divorce a mensa et thoro under the act. 1. The Act of March 9th 1855, relating to divorces, does not provide new causes of divorce beyond those ordained by then existing laws, but Only enlarges the jurisdiction of the courts in reference to the parties. 2. Personal abuse or indignities offered by a wife to-her husband will not justify him in turning her out of doors; he must show such cruel and barbarous treatment as renders his condition intolerable and life burdensome, or “ endangering his lifesuch as would entitle him to a divorce. 3. Thus, where only insults, abuse, and personal indignities by the wife are proven by the husband, in justification of his turning her out of doors, it was not error in the court, in an action of divorce a mensa et thoro brought by her, to rule that the evidence did not come up to the standard of justification, and to submit the case to the jury on the question whether there had been a turning out of doors.
48 Pa. 238Meehan v. Williams (1865)
Error to the Common Pleas of Armstrong county. This was an action of ejectment by John Meehan against James Williams, to recover five acres of land in Brady Bend township, in which, under the instruction of the court below, there was a verdict and judgment for defendant.. The whole case will be found in the opinion of this court.
48 Pa. 243Rishell v. Rishell (1865)
 Right of widow to benefit of Exemption Law, as against lien-creditors of husband. A widow’s right to land set apart to her under the 5th section of the Act of 14th April-185.1, with the approval of the Orphans’ Court, is postponed to the lien of a judgment against her husband, which was obtained before the Act of Assembly was passed, and continued a lien until the husband’s death.
48 Pa. 248Reppert v. Colvin (1864)
This was an action of assumpsit, by Charles K. Reppert against James Colvin, who was impleaded with John Smitley, late partners, doing business as Smitley & Colvin. . John Smitley and James Colvin, as partners, trading under the firm of Smitley & Colvin, carried on the coal business at Temperanceville, near Pittsburgh. Connected with their coal-works they had a store, principally to supply their hands with such articles as they needed.
48 Pa. 253Burgess of Birmingham v. Anderson (1865)
Plan of town on navigable streams, effect of on deeds. — Bedford’s Plan of Birmingham Borough construed. 1. Where a map or town plan made by the proprietor of lands on which a town is located, is referred to in a deed by the proprietor for one or more of the town lots, it becomes a material and essential part of the conveyance, and has the same force and effect as if it were incorporated into the deed. 2. Where a portion of land on the bank of a navigable river was marked in the town plan as “ a beach” and dedicated to public use, and certain lots thereon were convoyed by deeds which called for the “ beach of the river” as one of their boundaries: Held, that in construing other deeds for lots which in terms were bounded by “ the river”, they were to be so far controlled by the town plan as to fix the “ beach” and not the river as their real and proper boundary.
48 Pa. 261House v. Adams & Co. (1865)
Error, to the Common Pleas of Allegheny county. This was an action of assumpsit by John I. House and Edward House, doing business as John I. House & Co., against Alexander King and Michael McCullough, doing business as Adams & Company; and was founded on two bills of exchange as follows: “$112. “December 8th 1860. “ Six months after date, pay to the order A. King, $112,' value received, and charge to account. “ Adams & Co., Agents. “ To Messrs. E. F. Mioten, N. 0., La. Endorsed: “A. King, “Ed. HEAZ LETON, “ J. I. House & Co. “ Protested for non-acceptance, May 81st 1861. “ Thos.-.” “$351.25. “Pittsburgh, January 26th 1861. “ Six months, pay to order A. King, $351.25, value received, and charge same to account Adams & Co., Agents. “A. King. “ To Boles & Judson, H. 0., La. “ A King, “Ed. Heazleton, “John I. House & Co. “Protested for non-acceptance, June 1st 1861. “ Theodore Guiot. The first was presented for acceptance and protested for nonacceptance May 31st 1861 — presented for payment and protested for non-payment June 11th 1861. The second was presented for acceptance and protested for non-acceptance June 1st 1861— presented for payment and protested for non-payment July 29th 1861. These drafts were endorsed by A. King (to whom they were made payable) to Edward Heazleton, and by Heazleton to House & Co., plaintiffs, in the latter part of April 1861. On the 1st of May 1861, they were handed by House & Co. to the Farmers’ Deposit Bank for collection. Owing, as was stated by the cashier of that bank, to the difficulties and dangers of remittance, they declined taking the risk of collection, and returned them to House & Co., May 21st 1861, by whom they were immediately transmitted to Burbridge & Co., their agents at New Orleans. On the 28th of June 1861, a protest of the first draft for nonacceptance was received by House & Co., and notice of the same was mailed on the same day to A. King and Adams & Co., both of whom had their places of business in the city of Pittsburgh. On the 14th July 1862, the protests for non-payment of both •were received by House & Co., who on the same day gave notice of the same to Heazleton. Either on the afternoon of that day or on the day succeeding, notice of non-payment was given to King, one of the drawers of the draft, who at the time proposed to leave the question of his liability to an arbitration. About the time of the transmission of the drafts the mail facilities between Pittsburgh and New Orleans had been greatly interfered with, and immediately afterward the transmission of letters to Louisiana was prohibited by government, and the intercourse ■was not resumed until the latter part of June 1862, and the earliest receipt of letters at this place by the sea route was on the 1st of July 1862. But at that time no systematic intercourse with New Orleans by mail had been promulgated by the government, although at that time the mails were received at intervals. During the whole of the period between the time of the protests of these drafts for non-payment and their receipt here, there was an uncertainty as regards the transmission of mail and a general business intercourse and exchange of correspondence, arising from the unsettled condition of the country as well as the official orders of the Post-Office Department. This was a matter of public notoriety, without regard to the testimony adduced upon the subject. By consent a verdict was' rendered for the plaintiffs for the amount of their claim, subject to the opinion of the court as to the plaintiffs’ right to recover for both or either of the drafts in evidence, and subject to correction of error, if any, in plaintiffs’ calculation; and if on the testimony the court is of the opinion that the plaintiffs are not entitled to recover in any amount, judgment to be entered for the defendants non obstante veredicto, and subject to the right reserved to either party to take a writ of error. On hearing, the court below (Mellon, J.) filed the following opinion:— “ Apart from the objection of want of interest in the plaintiffs, which was made but not urged at the trial, it appears to me the plaintiffs failed to give sufficient evidence of any legitimate excuse for want of notice of protest either for non-acceptance or non-payment. Where the political condition of the country is alleged as the excuse, it cannot be requiring too much of the plaintiffs to show not only that such condition did exist, but also that it was the immediate cause of want of notice at the proper time, and that the notice was given as soon after the cause was removed as was possible to do so. I think it was not sufficiently shown what the holder of the bills did or attempted in New Orleans towards giving notice, and for this reason I enter judgment on the verdict in favour of the defendants, non obstante veredicto, in pursuance of the agreement of the parties at the trial.” The case was then removed into this court by the plaintiffs, for whom the following error was assigned :— The court entered judgment for the defendants below, non obstante veredicto, instead of entering judgment for the plaintiffs below.
48 Pa. 270Hutchinson & Co. v. Gormley (1865)
Error to the District Court of Allegheny county. This was an execution-attachment against Smitley &■ McGilvray, at the suit of Samuel Gormley, executor of A. Kirk Lewis, deceased, in which Hutchinson & Co. were summoned as garnishees. The following facts were presented to the court below as on a case stated:— At the time the attachment was served on the garnishees, viz., May 20th 1862, they were indebted to John Smitley, one of the original defendants, in the sum of $104.50; said Smitley being at the time inspector of domestic distilled liquors and gauger of oils for the county of Allegheny, under the Acts of Assembly of 11th April 1861, P. L, 279, and 5th April 1862, Id. 261, and said indebtedness being for fees due said Smitley as such officer for gauging oil. Said gauging was done by the deputies of said Smitley. By the terms of the Acts of Assembly under which Smitley held said office, it is provided, that such officer shall be entitled to receive a fee of five cents per cask or barrel so gauged; that he shall make quarterly returns of the quantity of oils so gauged by him, together with a sworn statement of the fees received for the same, and shall pay to the county treasurer, for the use of said county, one-third of all the fees so received by him. Said Acts of Assembly are to be taken as part of this case. After the service of the attachment, viz., August 22d 1862, Smitley brought suit against the garnishees to recover said indebtedness, at No. 385 October Term 1862, in the Court of Common Pleas of said county ; to which suit the garnishees, defendants, appeared and filed an affidavit, setting forth the nature of said indebtedness and this attachment. The plaintiff in said suit obtained a rule on the defendants for judgment for want of a sufficient affidavit of defence; whereupon the garnishees obtained leave of court to pay said amount into court, and on the same being paid in, the plaintiff Smitley obtained a rule on the attaching creditor, the present plaintiff, to show cause why he should not have leave to draw the same out; to this rule the present plaintiff filed his answer November 28th 1862, denying the jurisdiction of the Court of Common Pleas, and protesting against the decision of his rights by that court, while the District Court had obtained prior jurisdiction of the question; but the court made said rule absolute, and said Smitley drew said money out of court. The record of these proceedings is made part of this case. Subsequently to the service of said attachment the garnishees became indebted to the said Smitley in the sum of $22.70, for fees due him as county gauger of oils as aforesaid, for gauging done by his deputies; -which sum the garnishees paid over to said Smitley after the final judgment in the above-mentioned case. If, upon the foregoing facts, the court shall be of opinion that the plaintiff is entitled to recover the whole amount of said indebtedness from the garnishees to Smitley, then judgment to be entered in favour of the plaintiff for $127.20. But if the court shall be of opinion that plaintiff is entitled to recover only the amount of said indebtedness not included in the suit in the Common Pleas, then judgment to be entered for the plaintiff for $22.70, said sums to bear interest if the court shall so adjudge. But if the court shall be of opinion that the plaintiff is not entitled to recover, then judgment to be entered in favour of the garnishees, with leave to either party to take out a writ of error. The court below delivered the following opinion :— “ Two questions are raised by the case stated: 1st. Whether the judgment of the Court of Common Pleas is conclusive upon the parties here, and ousts the jurisdiction of this court? and, 2d. If not, whether the debt attached in this case comes within the provision of the Act of Assembly exempting the wages of labourers, or the salary of any person in public or private employment, from attachment? “ 1st. This court first obtained jurisdiction of the subject-matter in controversy between these parties, and therefore no proceedings subsequently commenced in the Court of Common Pleas can oust its jurisdiction, nor is the judgment therein binding upon us. “ 2d. It is not claimed that this debt falls within the provision of the act exempting the wages of labour, but it is contended that it comes under the .provision exempting salaries. “ The case stated, and the Act of Assembly under which the claim arises, designate it as fees for gauging oil. ‘ Fees are certain perquisites allowed by law to officers in the administration of justice, or in the performance of duties required by law, as a recompense for their labour and troubleBouv. Law Diet. “ Salary, in common parlance, is a recompense or consideration stipulated to be paid to a person for services; usually a fixed sum to be paid by the year. The distinction between fees and salary is too broad and well understood for us to suppose that the legislature intended to use these terms indiscriminately. If they had intended to exempt both fees and salaries, they might, and undoubtedly would, have used the term compensation, or some other word equivalent thereto, which would have included both. This they have not done, and we are bound to presume they used the appropriate term to express their intention. “ In construing an Act of Assembly, the language is to be be taken in its common and popular acceptation, unless technical words are employed, which must be understood according to their legal signification. There is a reason for the provision exempting salaries which does not apply to fees. The latter are payable on the performance of the specific service, and no credit is allowed, unless voluntarily given — the former at stated times, necessarily implying a credit for a longer or shorter period. In the case of a salary, an attachment might deprive the party of his means of living, which the legislature intended to provide against. But in the case of fees, being demandable as soon as the services are rendered, no such protection was necessary. “ Although the case stated does not present the question, we are of opinion that the attachment in execution only bound the indebtedness of the garnishees at the time of the service of the attachment, and not the indebtedness, subsequently incurred by the garnishee for fees for like services rendered thereafter. “The case shows that $22.70 of the plaintiff’s claim in this case were for fees earned subsequently to the service óf the attachment. This cannot be> considered as a debt within the contemplation of the Act of Assembly, and bound by the service of the attachment, as it was not then in existence. This part of the claim must therefore be rejected. But for the reasons given the plaintiff is entitled to judgment for the residue. “And now, to wit, June 4th 1864, this cause came on to be heard on a case stated, and was argued by counsel, and thereupon, upon consideration thereof, it is ordered and adjudged that judgment be entered in favour of the plaintiff against the defendants for the sum of $104.50, with costs of suit.” Supplemental Opinion of the Court. — “ Since the delivery of the foregoing opinion and the entry of judgment in this case, the counsel for the. plaintiff has called our attention to the case of Sheets v. Hobensack, 8 Harris 412, in which it was decided that moneys received by the garnishee in an attachment in execution, after the service thereof, are bound thereby. But for the authority of this case we should still adhere to our former opinion. But, considering ourselves bound by the decision of the Supreme Court, we are constrained to set aside our former judgment, and to direct judgment to be now entered for the full amount of the plaintiff’s claim, viz., $127.20, with costs of suit. And now, June 18th 1864, it is ordered, that the judgment entered in this case on the 4th instant be set aside, and that judgment be now entered for the sum of $127.20, with costs of suit.” Which was the error assigned in this court.
48 Pa. 275Laughlin v. Administrator of Lorenz (1864)
Appeal from the District Court of Allegheny county. This was an appeal by the administrators of F. Lorenz, deceased, from the final decree of the court in the matter of the bill in equity filed by James Laughlin, trustee of The Pittsburgh Trust Company, against them, and against Mary II. Stewart and William Thompson, administrators. of Thomas H. Stewart, deceased, and James J. Gray and Charles H. Lorenz. The bill charged a partnership, commencing 29th November 1853, for a term of years, between F. Lorenz and T. H. Stewart, under the firm of Lorenz, Stewart & Co., for the manufacture of iron and nails, which was not to be dissolved by the death of one of the partners; but in such an event was to continue to the 1st of August following, “ in the same manner as though no such death had taken place,” and then to be settled up “in such, manner as may be decided on by the survivor, and the representatives of the deceased partner.” That E. Lorenz died in October 1854, and the business was continued by Stewart until 1st August 1855, and that he and Gray and Charles H. Lorenz entered into a partnership in the same business, at the same place, and under the same firm name of Lorenz, Stewart & Co. That at the request of the administrators of E. Lorenz, the new firm settled up the business of the old firm, collecting its credits and paying its debts, and thus became a creditor of it to the amount of about forty-eight thousand dollars. That on the 31st December 1857, the new firm assigned this debt to the plaintiff as collateral security for a larger debt due by it to the Trust Company; and that afterwards Thomas H. Stewart died insolvent. The bill then prayed for a settlement of the- account “between the said firms,” and that the representatives of E. Lorenz and of Stewart be decreed to pay to the plaintiff the balance due by the first to the second firm, and for general relief. The answer of James J. Gray admitted the bill substantially, and annexed to his answer an account showing a balance due the new firm of $30,190.27. To an item on the credit side of this account of $19,028.58 the complainant excepted. The answers of the representatives of Lorenz and of Stewart expressed ignorance of the essential parts of the case, and the bill was taken pro eonfesso against Charles H. Lorenz. George Darsie was afterwards discharged as administrator of E. Lorenz, and Hon. James P. Sterrett appointed and appeared in his stead. August 10th 1861. — The cause was referred to Mr. Bailey as “ examiner to take the testimony, and as master to report thereon.” The important questions in the cause were, whether the representatives of the deceased partners of the first firm of Lorenz, Stewart & Co. were liable to account to the plaintiff for the debts of the first firm which had been paid by the second firm; and if so, by what principle their liability was to be measured. The prominent facts of the case, as reported by the examiner, were these:— By articles dated November 29th 1853, Frederick Lorenz and Thomas H. Stewart formed a copartnership “ for the purpose of manufacturing iron and nails, under the name and style of Lorenz, Stewart & Co.,” to continue until August 1st 1859. The articles provided that Thomas H. Stewart should sell to the firm an ironworks, land, &c., for the sum of $25,000, which should be credited to him as stock, making his interest one-third; and Frederick Lorenz was to contribute within six months $50,000, making .his interest two-thirds; that the real estate of the firm should be personal property thereof; and also that, in case of the death of any of the partners, the business should be conducted by “ the surviving partner to the 1st of August next ensuing, in the same manner as though no such death had taken place, and then an inventory of the stock and assets shall be taken, and the business of the firm closed up in such a manner as may be decided upon by the survivor and the representatives of the deceased partner.” Frederick Lorenz died on the 24th day of October, A. d. 1854. Thomas H. Stewart, the surviving partner,' in pursuance of the terms of the partnership articles, continued the business of the firm until the 1st day of August, A. D. 1855. By articles dated August 1st 1855, Charles H. Lorenz (a son of F. Lorenz, deceased), Thomas H. Stewart (the surviving partner of the late firm of Lorenz, Stewart & Oo.), and James J. Gray (one of the administrators of F. Lorenz, deceased), formed “a copartnership for the term of five years from the date above named, for the purpose of manufacturing iron and nails in all the various branches thereof, under the name and style of Lorenz, Stewart & Oo.; said articles provide “ that the stock of pig-metal and other materials entering into or used for the manufacture of iron, belonging to the late firm of Lorenz,' Stewart & Co. (which firm was composed of the late Frederick Lorenz, deceased, and Thomas H. Stewart), be taken at the cost of the same, and the stock of finished iron shall be taken at the rate of two and one-quarter cents per pound for common bar, and other sizes in proportion; and nails in the same proportion for tenpennies, and the amount of said stocks of iron, nails, &c., to be applied to the payment of the debts of the late firm of Lorenz, Stewart & Co.” The new firm of Lorenz, Stewart & Co. thus formed, occupied the ironworks and warehouse previously used by the firm of Lorenz, Stewart & Co.; in the course of their business worked up the stock of the old firm mentioned in their articles of partnership, and proceeded to collect the credits, and to pay the debts of the old firm of Lorenz, Stewart & Co. Frederick Lorenz left a will, bearing date March 22d 1854; which will was duly proved November 22d 1854. Letters of administration, cum testamento annexo, were issued to Catharine Lorenz, widow of deceased, Frederick R. Lorenz, his son, and James J. Gray. By order of the Orphans’ Court of Allegheny county, made March 24th 1860, the said administrators having failed to give certain security required by previous order of said court, were “removed from their said trust.” Letters de bonis non were granted by the register to George Darsie, one of the respondents; and, as appeared by the record of this cause during its pendency, Hon. James P. Sterrett, the present administrator, was substituted in lieu of said George Darsie. Thomas H. Stewart died on or about the 29th day of May 1858; and letters of administration upon Ms estate were duly issued to Mary H. Stewart and William Thompson, respondents. By a paper dated December 31st 1857, the new firm of Lorenz, Stewart & Co., in consideration of discounts by the Pittsburgh Trust Company, then held by complainant, its president, assigned to the latter “all of a certain debt due and owing to the said firm of Lorenz, Stewart & Co. by the late firm of Lorenz, Stewart k Co., composed of Frederick Lorenz, Sr., now deceased, and Thomas H. Stewart, supposed to be about thirty-seven thousand dollars, subject to adjustment and settlement thereof,” and as collateral security for the payment of their indebtedness for said discounts. As the result of a most careful examination, the master submitted a learned and elaborate report, in which he presented, as the state of the accounts between the old and new firms of Lorenz, Stewart & Co., that there was a balance due by the old firm, which consisted of Frederick Lorenz and Thomas H. Stewart, both deceased, to the new firm of Lorenz, Stewart & Co., which was composed of Thomas H. Stewart, deceased, James J. Gray, and Charles H. Lorenz, as of January 1st 1858, amounting to the sum of $48,046.94; that said balance of indebtedness arose from the settling up of the affairs of the old firm by the new, “ in the manner decided upon by the survivor, and the representatives of the deceased partner,” according to the terms of the articles of copartnership of the old firm of Lorenz, Stewart & Co.; that the said balance had been recognised and adopted by the then administrators of Frederick Lorenz, deceased, as a correct adjustment of the transactions between the two firms, and that the same was therefore binding upon the present representatives of that estate. He also reported that said balance was binding upon the representatives of the estate of Thomas H. Stewart, deceased, as the amount of the liability of the old firm of Lorenz, Stewart & Co. to the new, as of January 1st 1858. He also reported that the interest upon said balance, from January 1st 1858 to September 1st 1864, will amount to $18,738.29 —making a total of $66,785.25, as the balance due at said last date by the old firm of Lorenz, Stewart & Co. to the new. He also reported that by a paper dated December 31st 1857, the new firm of Lorenz, Stewart & Co., in consideration of discounts for them by the Pittsburgh Trust Company, then held by complainant, its president, and as collateral security for the payment thereof assigned to the latter as trustee of said company, “ all of a certain debt due and owing to the said firm of Lorenz, Stewart k Co.” That the liability of the new firm of Lorenz, Stewart & Co. to the Pittsburgh Trust Company amounted in all to $46,488.91. The interest thereon to July 1st 1864, to $12,688.84 — making $59,177.75, the amount at the 1st day of July 1854, as collateral security for which said second firm assigned- to complainant its claim against the old firm of Lorenz, Stewart & Co. He also reported the facts in his report as examiner, upon the evidence in the cause, which he referred to the court for the considerations and reasons which led him to these conclusions; and that in his opinion the complainant in this suit was entitled to a decree, as of the 1st day of July 1864, in the amount of $59,177.75. To this report a number of exceptions were filed, but the court having on the 6th of June 1864, on the consideration of the bill, answer, and testimony reported by the examiner, directed an account to be taken between the firms in accordance with the prayer of the petitioners, on further argument and consideration, did, on the 3d of September 1864, “ order, adjudge, and decree, that there is due and owing by the first firm of Lorenz, Stewart & Co. to the second firm of the same name, the sum of $64,332.89, with interest from September 1863, the date of said report; and that of said amount there be first paid to the complainant in said bill, the sum of $56,853.31, with interest from the time aforesaid (under and by virtue of the assignment of the said second firm of Lorenz, Stewart & Co. to the said complainant, bearing date 31st Hecember .1857), together with costs; and that the residue thereof with its interest be paid to the second firm of Lorenz, Stewart & Co.; and that the said sum of $64,332.89, with its interest as aforesaid, be paid to the parties aforesaid, in the proportions aforesaid, by the administrators of the said Frederick Lorenz and Thomas H. Stewart, deceased, respectively, out of the partnership estate and effects of the first firm of Lorenz, Stewart & Co.; and in case the same should not be sufficient for that purpose, then out of the individual separate estates of the said Frederick Lorenz and Thomas H. Stewart, in the hands of their respective administrators.” This appeal was then entered, and the following errors assigned by the appellants :— The court erred — 1. In decreeing, on the evidence in the cause, that the defendants were liable to account, according to the prayer of the bill. 2. In decreeing on the amount due by the defendants to the plaintiff $64,332.89 with interest. 3. In decreeing that any amount should be paid by the defendants to the new firm of Lorenz, Stewart & Co. 4. In decreeing that not only the property of the old firm of Lorenz, Stewart & Co., but also the administrators of Lorenz were liable for all debts contracted in carrying on the business, from the death of Lorenz to the 1st August 1855. 5. In deciding that “the business of the old firm was settled up in the manner required by the articles of copartnership,” and that the administrators of Lorenz joined with Thomas H. Stewart in requesting the new firm to settle up for them. 6. In allowing the record and proceedings in the Orphans’ Court on the account of the administrators of Lorenz, and the answers of the administrators in the execution-attachment case of King v. Charles II. Lorenz and others to be of any ruling importance in the cause. 7. In deciding that the administrators of Lorenz recognised the acts of the surviving partner after Lorenz’s death, and thereby became bound for them. 8. In deciding that an account had been actually settled between the new firm and the representatives of the old firm, (Lorenz’s administrators and Thomas H. Stewart), making an agreed balance of $48,046.94, with interest from 1st January 1858.
48 Pa. 286Bonner v. Campbell (1864)
Error to the Common Pleas of Armstrong county. This was an action of ejectment by Jeremiah Bonner, R. P. Arnold and others, heirs and devisees of Andrew Arnold, deceased, against John Campbell, P. G. Reed, William Paine, James Robbins and others, to enforce payment of the purchase-money for two thousand acres of land in Madison township. The suit was brought July 22d 1848, and arbitrated in 1849, with an award for plaintiffs. On the 27th day of November 1849, Peter G. Reed, one of the defendants, appealed from the award, and entered into recognisance “for defendants” in the usual form. On the 21st March 1860, he withdrew the appeal by writing filed. On the 6th of May 1861, on affidavit of plaintiffs that the money was unpaid, and on exhibition of the record and writings withdrawing the appeal, a writ of habere facias, &e., was awarded by the court and executed by the sheriff. The court, on the 8th July 1861, set aside the writ as to John Campbell and William Paine, and vacated the withdrawal of the appeal. On the trial the plaintiffs gave in evidence— 1st. A contract in writing between Charles C. Gaskill and John Blake, dated 1st March 1831, by which Gaskill sold to Blake lot No. 3 of tract No. 290, Holland land, for $150, with interest, 23d April 1831. On this contract Blake paid $26.20, and Bonner and Arnold paid Gaskill $50 July 7tli 1838, and $50 June 15th 1839. 2d. A contract between John Blake and Bonner and Arnold, dated 15th March 1842, by which Blake sold all his interest in above tract to Bonner and Arnold, for $3 per acre, Bonner and Arnold to pay balance of purchase-money to O. O. Gaskill, and remainder to Blake. 3d. A written contract between Bonner and Arnold and John Campbell, one of the defendants, dated 14th April 1842, for all interest of Bonner and Arnold in same tract for $3 per acre. A small amount of this purchase-money had been paid, and a large amount unpaid and overdue when suit was brought. The defendants defended upon the following facts: That after John Campbell purchased of plaintiffs, he (Campbell) divided the tract into four parts — No. 1 part, containing one hundred and twenty-one acres and one hundred perches; No. 2, ninety-eight acres; No. 3, sixty acres and forty perches, and No. 4, containing two acres; in all two hundred and eighty-one acres and one hundred' and forty perches. That No. 1 was sold,to William Paine; No. 2 to Alexander Paine; No. 3 to Peter G. Reed, and No. 4 to James Robins. No written contracts were exhibited for the sale; but it was shown (under objection by plaintiffs) that Gaskill, who held the legal title, made deeds to William Paine and Peter G. Reed for their parts on the 18th June 1845, and a deed to Alexander Paine on the 17th March 1847. No deed or contract, either verbal or written, was shown with James Robins. The admission of these deeds was excepted to by plaintiffs. The defendants then offered to prove by the deposition of Charles C. Gaskill that Bonner, one of the defendants, consented verbally to the making of the deeds. This evidence was objected to, for the following reasons:— 1. C. C. Gaskill is incompetent to prove the facts, even if true. 2. The deposition shows that the witness did not speak from his own knowledge or recollection. 3. The evidence is incompetent under the Statute of Frauds, &c., but the consent should have been reduced to writing. 4. The letters and declarations of John Campbell, as contained in Gaskill’s deposition, are not evidence. 5. The consent of Bonner is incompetent to affect his co-tenant Arnold, or his heirs or devisees. 6. The testimony is irrelevant and incompetent. The court admitted the deposition of Gaskill, and sealed a bill of exceptions. At the close of the case, plaintiffs’ counsel requested the court to charge the jury as follows :— ■ 1. That the consent of Bonner could not affect the rights of Arnold, or those claiming under him. 2. That the evidence of Gaskill is incompetent to divest the title of Bonner or Arnold, or either of them, by parol. 3. That there is no evidence that Bonner or Arnold in any manner consented to the making of the deed to Alexander B. Paine for the ninety-eight acres in his possession, and as to that part at least the plaintiffs would he entitled to recover. 4. That the deeds made to the defendants would not change the rights of the parties, nor divest the plaintiffs’ right to their purchase-money; but the defendants would hold their legal title, as trustees for the plaintiffs, to the extent of the unpaid purchase-money, unless the same was released by the plaintiffs according to law. 5. That the plaintiffs are entitled, under the evidence, to recover all the land not embraced by the deed to William Paine, and Peter G. Reed to be released upon the payment of the balance of the purchase-money. The court (Buffington, P. J.) answered the points thus:— “ 1. This point is answered in the negative. Under facts and circumstances in evidence in this cause, the only interest the plaintiffs had was in equity, which was under the general management of Bonner, if the evidence is believed; and if the jury believe the deeds were made to the defendants by the Holland Company, at the instance of Bonner, they would have a legal title in good faith, and the plaintiff could not recover, especially as there is no evidence that Arnold did not object within a reasonable time. “ 2. This point is answered in the negative. The evidence of Gaskill, if believed, proves a state of facts that equity would estop the plaintiffs from recovering, if the deeds were made to defendants at the instance of Bonner. “3. We cannot answer this point as requested; there is evidence to that effect, whether believed or not by the jury. “ 4. This point is correct, unless the jury believe the deeds were made to the defendants at the instance of Bonner. Because, if the defendants got these deeds from the Holland Company without the consent of Bonner in bad faith, and with a view to squeeze out and overslaugh him, then these deeds would not prejudice him, and he would be entitled to recover the amount due him. “ 5. This is a question for the jury. If you believe the consent or direction of Bonner does not extend to any but the Paine and Peter Grove Reed land, then the plaintiff would be entitled to a proportionate part from the others, to which Bonner did not consent according to the amount they respectively held.” Under these instructions there was a verdict and judgment for defendants; whereupon the plaintiffs sued out this writ, and assigned for error, 1. The answers given to the points above. 2. The setting aside the habere facias, &c., and opening the judgment; and 8. Admitting the deposition of Charles C. Gaskill.
48 Pa. 291North American Oil Co. v. Forsyth Bros. (1864)
Error to the Common Pleas of Allegheny county.' This was an action of assumpsit by The North American Oil Company against William PI. Forsyth, Henry Forsyth, and Jacob Forsyth, partners trading as Forsyth Brothers & Oo. The case was this: — In the month of July 1863, the plaintiffs and defendants entered into a contract, in the following terms, viz.:— “Pittsburgh, July 16th 1863. “ Purchased of Forsyth Brothers & Co. four thousand barrels good merchantable crude oil, to he delivered in their barrels on hoard cars of Allegheny Valley Railroad, and paid for by us in. lots as delivered, at the rate of twenty cents per gallon for the oil. The barrels to be returned. “The oil to be pumped free from water, subject to our inspection, and gauged in the barrels; the delivery to be commenced immediately, and pursued with all due diligence until completed. The gravity of the oil to be 40 to 44 degrees. Accepted. “Forsyth Brothers & Co.” The plaintiffs’ declaration contained three counts. In the first and third the substance of the above contract was stated; in the second it was given in terms, to which the defendants pleaded the following pleas :— “And now, to wit, March 11th 1864, the said defendants, by George Shiras, Jr., their attorney, plead non assumpserunt as to the several assumptions and promises in the said declaration thereof declared against them. “ And for further plea, in their behalf, they say that they are ready to defend the wrong and injury, when and where, &c., and that they, the said plaintiffs, did not, as alleged in their said declaration, offer to pay for the lots of oil, the delivery whereof was demanded, and of this the said defendants put themselves upon the country, &c. “ And for further plea, in this behalf, the said defendants say, that the said plaintiffs ought not to have or maintain their said action thereof against them, because they say, that they, the said plaintiffs, did not comply with and fulfil the provisions of the contract, on the part of the said plaintiffs, to be done and performed, in this, to wit: That they did not pay for a certain large lot of oil to them delivered by the defendants on the day of September 1863, and which, by the terms of said contract, was to be paid for on delivery, but wholly neglected and refused so to do. And the said defendants further say, that upon the refusal and neglect of the said plaintiffs to pay for the said lot of oil, so as aforesaid delivered by the defendants to the said plaintiffs, the said defendants rescinded the said contract, as they had a right to do, in equity and good conscience, and forthwith, to wit, on the 14th day of September 1863, gave notice of the said rescission to the said plaintiffs; and this the said defendants are ready to verify — wherefore they pray judgment, whether the said plaintiffs ought to have or maintain the said action thereof against them, &c. “And for further plea, the said defendants say, that the said plaintiffs ought not to have or maintain their said action thereof against them, because they say, that they, the said plaintiffs, did not pay for certain lots of oil to them delivered by the defendants, under the terms of the contract between the parties, but so to do wholly neglected and refused, whereby it became the right of the said defendants to treat the said contract as rescinded; and that the said defendants elected to treat the said contract as rescinded, and forthwith, to wit, on the 14th day of September 1863, gave notice of their said election to the said plaintiffs; and this they are ready to verify, wherefore they pray judgment whether the said plaintiffs ought to have or maintain their said action thereof ^against them, &c. “ And the said defendants, for further plea, say, that the plaintiffs did not frequently demand from the said defendants the delivery of oil, according to the terms of the contract between the parties, and offer to pay therefor, as alleged in their said declaration, and of this the said defendants put themselves upon the country, &c.” .After the delivery of two thousand seven hundred and ninety-four barrels, part of which was paid for, on the 10th of September 1863, four bills were presented b’y defendant at plaintiffs’ counting-house for oil delivered on the 4th, 5th, 7th, and 9th of September, amounting to four or five thousand dollars. These bills not being paid, on the 14th of September 1863 the following notice was served on the company:— “ Pittsburgh, September 14th 1863. “ George Ogden, Esq., Secretary North American Oil Oo. “ Dear Sir: — As you have, by your refusal to make payment when demanded, failed to comply with the conditions of our contract with you, dated July 16th last, and have thereby rescinded the same, we hereby give you notice that we shall not deliver you any more crude petroleum, under said contract. “ Yours, respectfully, “Forsyth Brothers & Go.” The bills were however paid on the same day, except one for $1038.80, which, having been overlooked, was paid on the morning of the 15th of September. On the 14th of September the balance of the oil was demanded, but to this and subsequent demands the answer was, that “the contract was rescinded, and no more would be delivered under it.” This suit was then brought, and as,- on the 14th of September 1863, the price of oil had advanced six and a half cents per gallon beyond the contract price, the plaintiffs claimed the difference, or twelve hundred and six barrels of forty gallons each, making forty-eight thousand two hundred and forty gallons. I. On the trial of the case the plaintiffs offered to prove that witness was employed -by them to attend to the receiving and inspection of the oil under the contract, and that he did so attend to the same [and that, although during all the time from the date of the contract until after the 14th of September 1863, defendants had great abundance of crude oil at the point named in the contract, defendants from time to time neglected and procrastinated the delivery of said oil, although frequent demands of the same were made by witness on behalf of the plaintiffs, from the date of the contract until the 14th of September 1863, defendants saying from time to time that oil had risen much in price], and that after the 14th of September 1863, defendants refused, on demand made, to deliver any more oil. To be followed by other evidence showing that plaintiffs always paid for said oil on the presentation of bills, and the delivery and inspection of said oil, so far as they were able to obtain the delivery of the same from said defendants. To which offer the defendants objected: 1st. Because it contains irrelevant matter mingled with what might be relevant testimony, in such way as to render the separation impracticable, and therefore defendants object to the whole offer as defective. 2d. Because tardiness in the delivery of the oil is not involved in the issue. 3d. That it appearing from the offer itself and from the opening of counsel, that the deliveries were made and accepted anterior to the 14th of September 1863, and then ceased, that the evidence relative to the transactions and dealings of the parties prior to that time-is irrelevant and incompetent. 4th. That the only question involved in the issue is the nondelivery of the oil, and the motives of the defendants for not delivering it, or his ability to deliver, is foreign to the issue. Per Curiam. — If the delaration alleges broadly the non-delivery of any oil under the contract, the plaintiffs having read the contract and shown the readiness of their inspector to attend to it on their part, and a demand and non-delivery, they may stop there. If the declaration alleges special damages by tardiness in the delivery, this ought to have been laid as a special breach of the contract. The offer was refused as marked by brackets, and the remainder admitted. II. The plaintiffs then offered to prove that defendants had a large amount of oil greatly exceeding the amount of four thousand barrels, in their tanks at the point of delivery named in the contract, and that witness, on behalf of the plaintiffs, from time to time, demanded the delivery of the same, and that defendants could, if they had exercised due diligence, have delivered said oil, but that they neglected and refused, from time to time, so to do. This testimony to be given in evidence in connection with that embraced in the foregoing offer. To which the defendants objected for the reasons assigned as objections to the first offer. Per Curiam. — So far as this offer proposes to prove a demand and refusal, it is admitted. That part in regard to the ability of defendants to perform, is rejected as irrelevant. III. Plaintiffs’ counsel asked the witness whether at different times prior to the final'refusal, witness did not demand one and two car-loads of oil and receive a much less quantity .than demanded, defendants at the same time refusing to deliver any more, for the purpose of showing that plaintiffs were ready and willing to comply with the contract, but that defendants were not willing to comply with theirs. This question was objected to by defendants’ counsel, on the ground that there is no allegation of tardiness or delay in making the delivery, or that the delivery was not in lots as large as required by the contract. Per Curiam. — So far as this offer regards the last time that any oil was delivered and a refusal, or notice given that defendants would not deliver any more, it is admitted; the other parts of it are refused. IV. The plaintiffs’ counsel asked the witness whether, between the 16th of July and the 14th of September 1863, the oil was furnished by the defendants in sufficient quantities to keep plaintiffs’ works going, for the purpose of showing that oil in sufficient quantities was not furnished in quantity for that purpose. Defendants’ counsel objected, because the contract was not to furnish in quantities to keep the works going, and as not having a bearing on the question of damages, as damages for not keeping the works going cannot be recovered. In the course of their defence, the defendants offered to prove that defendants delivered several lots of oil, to wit: September 4th, fifty-six barrels; September 5th, fifty-six barrels; September 7th, a hundred and sixty-nine barrels; September 9th, two hundred and twenty-eight barrels; and September 10th, a hundred and thirty barrels, making in all an aggregate of six hundred and thirty-nine barrels, and demanded payment of the same, which being refused, the contract was declared, by the defendants, rescinded, and notice thereof given to plaintiffs. This was objected to by plaintiffs, on the ground that the offer is multifarious, indefinite, and irrelevant, and did not show whether they demanded the whole at one time or the different lots at different times. Per Curiam. — If the defendants forebore to demand pay for the different lots as delivered until the last above-named lot was delivered, it would not vary nor abrogate their rights to demand the whole amount together. Testimony admitted. The court below reserved the folloiving questions:— 1st. Whether, under the pleadings and evidence, it is incumbent on the plaintiffs to show readiness to perform their part of the contract after the notice of rescission of 14th September served on them ? 2d. Did the notice of rescission of 14th September, the plaintiffs being in arrear at the time for part of the oil already, delivered, operate to discharge the defendants from any further obligation under their contract, notwithstanding the mode of performance of the contract, which had been previously pursued by the parties on both sides ? And instructed the jury as follows:— “ After the questions of law reserved in this case, there remains but little for you to pass upon. The only questions which I will submit to you are in reference to the plaintiffs’ conduct under the rescission notice of the 14th September to them, and the amount of damages. “ Having regard to the terms of the written contract of 16th July, and its subject-matter, and the mode of its performance pursued by both parties previous to 14th September, did the plaintiffs, when they received this rescission notice, use due diligence in paying up what was then in arrear, and show by their acts and declarations that they did not acquiesce in that view of it, but regarded the contract in full force, and were willing to comply with it on their part. The legal effect of the contract of the 16th July, was that the defendants should deliver the oil in parcels, and plaintiffs should pay for it as delivered. The acts to be done on both sides were concurrent or mutual. Either party was bound to tender performance before putting the other in default. The defendants could require payment of each parcel before it left on the cars. If, in the mode of the performance, however, the defendants did not deliver as expeditiously as was desired by plaintiffs; or if plaintiffs did not pay for each parcel as delivered, but several parcels were delivered and the bills presented together; in other words, if the rigidity of the performance was departed from on either or both sides, and acquiesced in, the one party could not take advantage of past acts of the kind, to declare the contract rescinded as to the future. The legal effect of the notice of 14th September was, that if plaintiffs did not pay up arrears for oil already delivered, and thereafter pay as delivered, according to the contract, the defendants would hold themselves discharged from any further obligation to perform on their part. “ Then, under this notice, did plaintiffs manifest due diligence, and pay up in reasonable time, under the circumstances, and manifest their intention to hold to their contract and perform it in the future on their part. If so, the plaintiffs are entitled to recover. On the other hand, if the plaintiffs did not so act, but, by their conduct or declarations, exhibited a disposition from which it might be inferred they would not pay for the- oil as, delivered in future, or would not comply with their part of the contract, or unréasonably neglected to pay up the amount then due, or refused and delayed to pay it up after 14th September, notice served on them, then plaintiffs are not entitled to recover. “ The measure of damages is the difference between the contract price and the market price at the time it ought to have been delivered, with interest.” The jury rendered their verdict for plaintiff for $3229.67. Subsequently the court below delivered the following opinion on the points reserved :— “It appears to me, after examining the testimony, that judgment must be entered for defendants, non obstante veredicto, on the first reserved point. In Robinson v. Tyson, not yet reported, Judge Strong uses this language : ‘ The averment that the plaintiff was ready and willing to receive the oil and pay for it on its delivery and shipment on the ears, was a material one and necessary to he proved. It is not said there must be direct proof that the vendor was present at the time and place appointed for the delivery with the money in hand with which to make payment, but there must be evidence from which a jury may legitimately infer that he was then and there ready.’ “ In the present case the defendants had complained of trouble in obtaining payment for the lots already delivered, and had positively refused to proceed under the contract on that account. The parties had by their acts — perhaps for mutual convenience and accommodation — relaxed, to some extent, the strict promptness of delivery and payment, or mutuality of performance which the law applies to such contracts; and while such coirrse of performance was pursued without objection, neither party could take advantage of it, to declare the contract forfeited, as was attempted by these defendants. But their notice of forfeiture indicated to the plaintiffs plainly enough that the defendants had abandoned this relaxed course of performance, and thrown themselves on their legal rights. The plaintiffs might well infer from it that defendants would deliver no more oil until what was delivered was paid for, and a readiness on part of plaintiffs to pay at the cars on delivery was clearly shown. After this notice the plaintiffs did pay up arrears promptly, and showed a readiness to receive more, but I fail to perceive in the evidence anything from which a jury might legitimately infer readiness to pay on delivery, otherwise than as payment had theretofore been made, and this relaxed mode the defendants had abandoned on what amounted to due notice. The defendants cannot, therefore, be regarded as in default, until the plaintiffs put themselves in an attitude of readiness for a strict compliance with the requirements of the contract on their part. “ On the argument, the learned counsel for plaintiffs adduced some authorities rather impugning the extent to which the case of Robinson v. Tyson carries the necessity of proof of the averment of readiness to receive and pay under such contract, but I think that case only declares the common rule of text-books. “ True, this court was reversed for not laying it down as the rule in Robinson v. Tyson, but the question was not raised at all on the trial of that case. When the evidence was closed in that case, the court was asked among other points to say, that the plaintiffs could not recover upon the pleadings and evidence. In view of the evidence and admissions in the ease, this could not be done, and we simply refused so to charge the jury. Thereupon the case went to the Supreme Court upon the loose notes of parts of the testimony which we had taken. There having been no intimation of a demurrer to evidence, it was not fully noted. And not supposing such point so put to the court would be regarded as a demurrer to evidence in the Supreme Court, especially in view of the rules of this court requiring all points on which instruction is asked to specify the particular matter to which they allude, we did not deem it necessary to ao more than refuse this point. This may have been error, but the question of want of proof of readiness to perform on plaintiffs’ part was never raised on the trial. “ I do not think anything new or extraordinary is required by the rule as expressed in Robinson v. Tyson, and in its application to the circumstances of the case in hand, I would not suppose a tender, or even an exhibition of an adequate amount of money necessary, but that in such case it should be shown that adequate funds were on hand or in bank ready to be checked out for the purpose. A difference exists between ability to pay and readiness to pay. Of ability and willingness to pay we think there could be no question, but -we think the case deficient in proof of readiness to pay, and for that reason direct judgment to be entered for the defendants non obstante veredicto.” The ruling of the court on the questions of evidence, and the entry of judgment on the reserved points, were assigned for error here.
48 Pa. 300Cullum v. Wagstaff (1864)
Error to the Common Pleas of Venango county. This was an action of assumpsit, by David Wagstaff against H. Cullum, to recover damages for the non-delivery of five hundred oil-barrels, and thirty-five barrels of crude petroleum, to which was added a claim for money had and received, and the use and occupation of a boat which the plaintiff averred he had bought of defendant, but which the latter had sold at Pittsburgh. The contract for the barrels and boat was as follows:— “ This is to certify, that Horace Cullum, of Meadville, Penna., and F; T. Munson, agent, of Weedsport, Cayuga co., N. Y., have agreed as follows: “ Said Cullum is to furnish one thousand oil-barrels at $1.80 per barrel, at Meadville, for said Munson. Five hundred to be sent at once to Shaw’s Landing, at 5 cents per barrel, free of any other charge. The other five hundred to be put upon French creek boat (now lying in French creek), when the first water comes sufficient to run out the boat with five hundred empty barrels. “ This is further to certify, that said Cullum has this day sold to said Munson, agent, a French creek boat, now lying in French creek, for the sum of $80; said boat is to be in proper order for running five hundred empty barrels safely out of the creek by the time the first water comes sufficient to run said boat and load out. Said Munson, agent, is to give a draft on David Wagstaff, of N. Y. city, for the payment of same. Payment of the first five hundred and boat to be made as soon as the first five hundred barrels are delivered at Shaw’s Landing, by presenting a receipt from Shaw that they are so delivered at his landing. The other five hundred to be paid for as soon as they are delivered on board the boat in French creek (preparatory for running out on the first water), said draft on Wagstaff to be on sixty days’ time, said Munson, agent, paying the discount to said Cullum. “H. Cullum. “ F. T. Munson, Agent. “ Meadville, September 27th 1862.” On the 3d November 1862, the same Munson, agent, bought from Cullum one thousand barrels of oil, for which Cullum gave him an order on one Olmstead. It was admitted by Munson that he had received from Olmstead on this order nine hundred and sixty-five vessels full of oil, each containing forty gallons, or in the aggregate more than one thousand statute barrels. Olmstead refused to deliver any more oil, claiming that he had filled the order. The evidence of Munson was that nothing was said about the size or capacity of barrels when he made the contract for the oil, but it was claimed that according to the custom of the oil region, the plaintiff was entitled to forty gallons to the barrel. On the trial it appeared that five hundred of the oil-barrels were “ delivered at Shaw’s,” but the remaining five hundred were not loaded or ready for delivery at the time stipulated in the contract, although they were sent for, and defendant was informed by telegraph, after the “ first rise in the water,” that a draft for the price was ready at any time. On the second rise of the river, the barrels were run down and sold by the defendant as his own. The plaintiff also offered to prove “ the price of barrels in Franklin and Oil City, for the purpose of showing damages,” to which defendant objected generally, but without stating in his bill of exceptions any particular ground of objection, or any reason why the evidence should not be received. The court overruled the objection, and admitted the evidence. The defendant requested the court to instruct the jury, 1. The plaintiff having neglected to come for the barrels and pay for them at the time of the first or second rise in French creek, cannot recover damages for the non-delivery of the barrels. 2. There is no sufficient evidence that the plaintiff did not receive all the oil purchased from defendant. 3. The plaintiff having shown that on his purchase of one thousand barrels of oil he has received nine hundred and sixty-five vessels full, each holding more than forty gallons, cannot claim a deficiency in the delivery. Which the court below answered as follows:— “ 1. Whether there was neglect on the part of plaintiff’s agent in not looking after the barrels at the time of the first and second rises in French creek, is for the jury. The plaintiff was bound by the contract to give a draft for the last five hundred barrels ‘ as soon as they were delivered on board of the boat in French creek,’ and until they were so delivered the defendant could not demand or claim the draft — the defendant could not run off the barrels and sell them to another without first giving notice, or endeavouring to do so, to plaintiff or his agent, without first waiting a reasonable time after the barrels were delivered on the boat. If Cullum had either given notice or waited a reasonable time, plaintiff cannot recover damages for the barrels. If not, plaintiff is entitled to such damage as he sustained. “ 2. There is some evidence that plaintiff did not receive all the oil purchased, and the effect of it is-for the jury. “ 3. Whether a statute barrel of thirty-one and a half gallons was intended by the parties, or one of Cullum’s barrels, holding more than that, is for the jury from all the evidence.” Under these instructions there was a verdict and judgment for plaintiff. Whereupon the defendant sued out this writ, averring here that the court below erred in admitting evidence of the price of barrels at Franklin and Oil City, and in not charging the jury as requested in the points above given.
48 Pa. 305Morrow v. Commonwealth (1864)
Error to the Common Pleas of Allegheny county. This was an action of debt before a justice of the peace, by The Commonwealth, for the use of John Brown, against John C. Morrow, and came into the Common Pleas by appeal, where a declaration was filed, averring that the defendant, on the 15th of October 1863, obstructed a public road or highway in Kobinson township, and did commit a nuisance thereon by setting up posts, making fences, and by turning said road, &c., contrary to the statute, &e., whereby he forfeited $40, and by force, &e., an action accrued to the plaintiff. To which the defendant pleaded “ not guilty,” non assumpsit, and “ payment with leave,” &c. The existence of a road. at the point mentioned in the narr. was not denied, nor that fences had been erected by the defendant, but he averred that at the place where the road was located, there was an open space about two hundred feet wide, which had been used at pleasure by travellers, and that he in right of his wife, who had inherited part of the land through which the road was laid out, put up his fence to the line, as it had been located by order of the Quarter Sessions. On the trial, one of the supervisors proved that he served a notice in writing on Mr. Morrow in February 1863, and another 5th March 1863. Plaintiff then offered to prove by the witness what the notice was, but defendant objected that the notice being in writing, the witness could not give evidence as to the contents, and that no notice was given defendant to produce the notice served on him. The court thought the evidence proper, overruled the defendant’s objections, and sealed a bill of exceptions for him. The witness, under this ruling of the court, stated: “ I notified defendant to move the fences off the road; can’t tell whether I have a copy of the notices or not; most likely I have.” Defendant afterwards, with his evidence, gave in evidence a notice served on him by the supervisors, which the court admitted as “being one of the notices testified to by Caldwell, plaintiff’s witness.” This notice was to remove the obstructions “ from the road as laid out by the viewers.” The defendant called Stephen Woods, Sr., who was a viewer and the surveyor at the time the road was laid out, and proved that the survey and draft filed in the road case was made by him;' that he had lately run the road on the ground, and examined the land-marks, &c., and then proposed to .ask the witness whether the road as located by the viewers embraced the fence at the points for which suit is brought; or whether the fence at those points is outside of where the road is located. This was objected to by the plaintiff as irrelevant, and the objection sustained. The defendant requested the court to charge the jury:— 1. That if the fence is not on the ground as located by the viewers, plaintiff is not entitled to recover. 2. If there was no definite road-bed fixed at the point where the fence was erected, but at that point there was a space some ninety-four feet in width over which the' public travelled as they pleased until the fence was built; then there is no such location by the supervisors as to change the road as made by the viewers. 3. That there is no evidence in the case, of such location by supervisors as to change the location of viewers. The court below negatived the first point, affirmed the second point, provided there was no location made by the viewers, and submitted the third-point to the jury. In.their general charge the court (Stowe, P. J.) said:— “ As to the written notice given in evidence by defendant, we charge you that plaintiff cannot recover under it, unless the obstruction is to the road as laid out by viewers, and you are to look for'that to the 'survey as returned by the viewers; but as there is evidence of several other notices to remove these obstructions from the road, it will be for you to say whether defendant was, in addition to this written notice, duly notified by the supervisors, to remove the fences from the road, as it was used, without reference to the written notice. • The question here, if you are satisfied from the evidence that defendant was notified, as testified by plaintiff’s witnesses, by the supervisors, or either of them, "to remove the fences or obstructions, is whether these fences or pieces of fence’ were placed by defendant within 16J feet of .the road as it was originally opened by the supervisors and used by the public. “ As the road was originally opened and used, so it must remain, and whether or not it was so opened and used according to the original view or location by the viewers, has nothing to do with the ease, and is of no importance, and the location of the road as opened b-y the supervisors or by their direction cannot now be icorrected, even if it was perfectly clear that it was not put originally where it should have been. “ As to the amount you should find for plaintiff, if you are of opinion he should recover. This question is solely for you; between ten and forty dollars, according to your opinion of the motives which actuated the defendant in placing, his fence where he did. If he acted bond fide under the mistaken opinion that he had a right to put his fence where he did, your verdict should not be so much as if he acted recklessly and without any reasonable excuse, or with a knowledge of the fact that he was encroaching upon the public rights. [If, however, you believe from the evidence that there never was a roadway laid out by or. used with the acquiescence of the supervisors at these points, but that it was an open space having no defined travelled way, but one part used as much as the other, then you will be governed by. the view as originally made.] In other words, if you cannot discover from the evidence where the road, as laid out or as generally used or travelled, was, then you will take the original location as the proper site of the road, and see if those obstacles, or either of them, wére within 16J feet of the centre. If it was, plaintiff should have your verdict.” Under these instructions there was a verdict and judgment in favour of plaintiff for $10; whereupon defendant' sued out this writ, averring here that the court below erred:— 1. In admitting parol evidence of the contents of the written notice above mentioned. ' 2. In rejecting the evidence of the viewer and surveyor as to. the location of the road. 2. In the answers given to the points propounded as above; and 4. In that portion of the general charge printed above in brackets.
48 Pa. 309Fleming v. Beck (1865)
Notice of the talcing of depositions, on whom, to he served,. — Damages for loss of profits, when not recoverahle. 1. Whether a notice of a rule to take depositions was properly served upon the adverse party, depends upon the rules of the court in which the action is tried; and where a deposition is rejected for defective service of notice, the presumption in a court of error, is in favour of the interpretation placed by the court below upon its own rules, in the decision of the question of service. 2. Where a rule of court provided that if an attorney was employed and marked on the record, all notices should be served on him, except where an Act of Assembly or “ these rules” directed otherwise; and a prior and older rule required that notice of a rule to take depositions should be in writing and served on the adverse party; a service of notice of a rule upon the attorney of the plaintiff residing in the county is not good; and the deposisitions taken under the rule are not admissible. 8. Loss of profits or custom by reason of alleged defective performance of a contract to dress mill-stones, is not recoverable by the injured party, as consequential damages, without an express stipulation to that effect. 4. In an action to recover the contract price for work, the plaintiff cannot recover, if the work be not done in a workmanlike manner; but the defendant can recover only his immediate loss, and not remote consequences, such as loss of custom.
48 Pa. 314Chartiers Township Road (1864)
Proposed changes of location in roads, how set forth in the petition. — ■ Approval of report of viewers when irregular.— Confirmation ofi when void. 1. A petition for a change in the location of certain parts of a public road must set forth particularly the parts proposed to be changed. 2. A report of road viewers must be made at the next term of court after the order is taken out and presented for approval; whore the report was filed during the term in which the order was granted, the approval of the court at the third term thereafter, and subsequent confirmation, was irregular and void.
48 Pa. 315Pittman's Appeal (1865)
Appeal from the Common Pleas of Indiana county. This was an appeal by Benjamin Pittman, from the decree of the court below distributing the proceeds of the sheriff’s sale of his real estate. There were eight judgments on record against Mr. Pittman, on two of which, viz., the second and fourth, there was a waiver of the benefit of the Exemption Law, before July 4th 1844. The writ under which the property was sold was an alias fi. fa. bn the seventh judgment. It was placed in the sheriff’s hands October 15th 1862, and on the same day the defendant claimed in writing the benefit of the Exemption Law. The property was appraised, and as three hundred dollars’ worth could not be conveniently cut off from the lot, the whole was sold together for $790, and the money brought into court for distribution. The defendant appeared before the auditor and claimed $300 out of the proceeds of sale. It was proved before the auditor that the fourth lien had been considered as paid before the sheriff’s sale. The auditor (H. B. Woods, Esq.) reported four schedules for distribution, marked A, B, C, and D, leaving the legal question raised by the facts, for the decision of the court, but submitting the following opinion :— “ There being no waiver in the judgment upon which this property was sold, the effect of the defendant’s claim for ‘ the benefit of the Exemption Law,’ is to divide the fund into two parts— one of $300 belonging to the defendant, subject to the right of any of his creditors, and the other of the balance of the fund. “ The first judgment being for a debt contracted before the 4th of July 1849, is superior to any other claim on this fund, after satisfying costs of sale and audit. It has priority of lien, and is not subject to the operations of the Exemption Act. The rights of the plaintiff cannot be affected by subsequent legislation. So far as this judgment is concerned there can be no two funds. The whole fund, if necessary, will be taken to satisfy this judgment. Anything the defendant may do will not divide the proceeds of this sale so as to affect a debt existing before the passage of'the Act of 1849. It is clear then to the auditor’s mind that before any separation of this fund can be allowed the first judgment must be satisfied; that it is only claims since the 4th July 1849 that are affected by the operations of the Exemption Law, and to which, two funds can be created out of proceeds of a defendant’s real estate by reason of the defendant’s claim of the benefit of the Exemption Law. If the defendant has various judgment-creditors for debts contracted since 1849, and waives the benefit of the act in one judgment, subsequent judgment-creditors may demand that equity be done so that all or as many judgments as possible be paid. But the rights of the plaintiff in the first judgment are not subject to the application of any principle which will require him to pursue a particular part or portion of this fund to satisfy his judgment. He must be paid first out of the whole fund; and if any equities are to be adjusted between creditors whose claims are subject to the operations of the Act of 1849, they must be adjusted out of the balance of the fund remaining for distribution after the first judgment is satisfied. “ There being a waiver in the second judgment, and none in some of the subsequent judgments, equity will require that this judgment be satisfied out of that fund that is beyond the reach of other creditors; that is, out of the $300 claimed by defendant. The third judgment has no waiver of the Exemption Law, hut the fourth, which was satisfied before the sale, has. This show's that defendant intended to relinquish his right to have $300 exempted from levy and sale thus far, and is an abandonment of his claim, so far as the third judgment is concerned. Were it otherwise, his waiver might have the effect of changing the law requiring the liens to be paid in the order of priority. Therefore the third and fourth judgments had an advantage over subsequent judgments (assuming that a waiver in a judgment does not affect the defendant’s right in subsequent judgments), and the application of a well-established principle in equity would require the plaintiffs in these judgments to first exhaust the fund that cannot be reached by other creditors before coming on the fund common to all. In this case the $300 fund claimed by defendant would be exhausted before the fourth judgment, w'hich contains a waiver, would be reached. The result is, that this entire fund, after deducting costs, must be distributed to lien-creditors according to priority of liens, which is done as per schedule A of distribution. “ The counsel for the plaintiffs in the fifth judgment contended that the waiver in the fourth judgment operated as a waiver in all prior judgments, as well those for debts before 1849 as since, and that all would have to be paid out of the $300 claimed by the defendant, if that amount were sufficient. In this they differ from the auditor so far as the first judgment is concerned. As regards this ease it can make no difference. The same distribution will result if the law be interpreted as contended for by them, as if schedule A be correct. “ But the counsel for defendant take quite a different view of the law. They contend that the defendant has rights under the Exemption Law that cannot be taken from him so long as those judgments containing a waiver will be satisfied in their proper order of lien. That the equitable principle before spoken of cannot be applied between two creditors to the prejudice of the defendant, he being a third party; that the $300 claimed by defendant cannot be taken from him to pay any judgment that will be satisfied out of the balance of the fund because of its time and place in the list of liens. They would have the fund distributed as in schedule B.” The court below adopted schedule A, in which the defendant’s claim was disregarded, and the balance in court divided among the judgment-creditors; which was the error assigned.
48 Pa. 320Oakland Railway Co. v. Fielding (1864)
This was an action on the case by John Fielding against The Oakland Railway Company, to recover damages for injury sustained by his minor son, alleged to have been occasioned by the negligence of the defendant in not keeping Third street, in the city of Pittsburgh, over and along which the track of their railroad is laid, in good and proper repair.
48 Pa. 328Allegheny Bank's Appeal (1864)
Power of court to control funds deposited, in bank by late sheriff. — Bank not subject to rule of court or attachment as for contempt.— Who are subject to rule and attachment. 1. A court on whose execution a sheriff has sold lands of a defendant and deposited the proceeds in bank, to the credit of his account as sheriff, cannot, after his death, rule the bank to pay the proceeds into court for the purpose of distribution. 2. The successor in office of a deceased sheriff is the proper party to demand and receive the money from the bank; and the proper course is to rule him to pay it into court or to the plaintiff in the writ. 3. Outside parties who, by legal process, official position, or otherwise, are not in court and subject to its jurisdiction, are to be acted upon only by the ordinary process of law. 4. A bank is such an outside party; and such a rule upon it is null and void for want of jurisdiction, and may be restrained by injunction, or reversed upon appeal, or be disregarded as incapable of execution. 5. But if a bank submits to the rule and pays the money into court, and the court makes decree of distribution, it cannot appeal from that decree, having no interest in the distribution.
48 Pa. 335Aurentz v. Porter (1864)
Error to the Common Pleas of Indiana county. This was a proceeding in the court below, in which, on motion of John H. Aurentz, a rule was granted on James R. Porter, late prothonotary of Indiana county, to pay over the sum of $1908, which had been deposited with him while in office, in a certain action of ejectment, wherein Patrick Fenlon was plaintiff and John II. Aurentz was defendant. The whole case will be found in the opinion of this court,
48 Pa. 337Little v. Commonwealth (1864)
Sureties of assignee for benefit of creditors. — Liability of for default in paying claim decreed to a specific creditor. — Remedy of sureties, by appeal from the decree complained of. 1. Where, by the final decree upon the account of an assignee for the benefit of creditors, he is directed to pay the claim of a specific creditor, his sureties are liable for default of payment, and cannot defend on the ground that they were not bound by the decree. 2. Semble, That the remedy of the sureties, if any, was by an appeal from the decree of distribution: but where no appeal is entered they are bound by the decree, and cannot, in an action on the bond, set up that it was erroneously made against the assignee.
48 Pa. 342Patterson's Appeal (1865)
Assignment for benefit of creditors. — Sureties of absconding assignee not entitled to a credit, on account, which their principal could not claim by reason of fraud. One holding judgments against another, after assigning them to a third party, became assignee for the benefit of the creditors of the debtor, and as such sold the real estate assigned, the purchaser paying out of the purchase-money the prior liens, and the balance on the judgments in the assignee’s name, the transfer of the judgments not having been entered of record. The assignee having absconded, on settlement of his account by his sureties, it was held, That as the assignee himself would not have been entitled to a credit for the amounts fraudulently received by him, on the judgments against the assignor, the sureties were in no better position; and that they were accountable therefor to the holder of the judgments.
48 Pa. 345McConnell v. Carey (1864)
Effect of parol partition among heirs, when executed. — Agreement for, when not binding. — Right of feme covert to recover her interest in land, claimed under parol partition, after informal conveyance thereof.— Deed of wife not admissible as evidence of her assent. 1. Family arrangements are to be regarded with favour, and a parol partition among heirs, if fairly made, is binding even upon femes covert, if they are parties to it and assent to the arrangement: but it is binding only when the partition has been agreed to by all of the joint owners, and when it has been executed. 2. Where one heir agreed to purchase the interest of his co-heirs, in land which had descended from their deceased father, in consideration of a sum of money to be paid the widow, and of his release in the other lands of the paternal estate, when the other heirs should assure to him his tract in severalty — and some of them had not so conveyed, nor had he executed the release— the arrangement was held not an executed partition, and that a sister who had by deed, without the joinder of her husband, and without a separate acknowledgment, conveyed her interest to him, was not thereby prevented from asserting it in an action of ejectment. 3. Hence, it was error to admit in evidence her deed as proof of her assent to the partition ; and to leave to the jury to find, that if her willingness had been expressed, that her brother should have the portion taken by him in possession ; and that she could not recover hor interest in it, though he had not complied with the conditions upon which her assent was made.
48 Pa. 351Renziehausen v. Keyser (1865)
This was an action of replevin, issued October 19th 1863, by George Renziehausen . against George Keyser and Agnes M. Mahon, for a lot of clothing and satinetts, valued at $150, in which the property was replevied and delivered to the plaintiff.
48 Pa. 355Mayor of Pittsburgh v. Pennsylvania Railroad (1864)
Appeal from tbe District Court of Allegheny county. This was a proceeding founded on a bill in equity filed by the Municipal Corporation of Pittsburgh, December 22d 1863. The bill set forth that the Pennsylvania Jtailroad Company were engaged in digging, excavating, and piling up dirt, stones, &e., in several of the streets of the city of Pittsburgh, greatly impeding the travel, and causing great injury and inconvenience to the citizens, and rendering the city liable to great expenses and damages; that the said railroad company were doing these acts for the avowed purpose of constructing a railroad track from Penn street, under Washington, Seventh, and Pennsylvania avenue, along Fountain and Try streets, and across Breckinridge, Front, Second, Third, and Fourth streets, and across the Monongahela river to some point in South Pittsburgh; that the grade of the proposed road was six feet below the grade of Fourth street, two feet below Third street, three and a half feet above Front street, and fifteen feet above Breckinridge street, and would necessitate a change in the grades of all said streets, besides rendering portions of Try and Fountain streets utterly useless, and greatly damaging the Monongahela wharf where they proposed erecting the abutment of the bridge over the river. The bill further set forth that the said defendants pretended to be building said railroad as a branch to their main line, under power contained in their charter, but denied any such power, and charged that they were building it as a part of the Pittsburgh and Steubenville Railroad, under some arrangement with that company; that the city councils had, at the instance of the Pennsylvania Railroad Company, passed an ordinance granting the Pittsburgh and Steubenville Railroad Company the right of way, on certain terms and conditions, over the precise route and on the exact grades where the said road was being constructed, and that it was a mere pretext on the part of the Pennsylvania Railroad Company to avoid complying with the terms and conditions of said ordinance. The bill denied all right in the Pennsylvania Railroad Company to construct such road, and prayed the'court for an injunction to restrain them from proceeding with the work. A supplemental bill was filed April 7th 1864, which set forth that, since the filing of the original bill, at the instance and request of the Pennsylvania Railroad Company, the city councils had passed an ordinance, prepared by the vice-president and solicitor of said road, granting the right of way and consent of the city to said Pennsylvania Railroad Company for the construction of said road, upon certain terms and conditions mutually agreed upon; but that said company, after procuring the passage of said ordinance, and giving assurances that they would accept it, had refused to do so, without stating their objections thereto. It further set forth the willingness and desire of the city to give all reasonable facilities to the said company, and averred that the only object of the city was to guard and protect the rights and interests of the city, and that the said ordinance contained nothing but what was necessary for that purpose, and nothing that the said Pennsylvania Railroad Company could reasonably object to. And it charged that the said Pennsylvania Railroad Company were unwilling to make any arrangement whatever with the city, and were proceeding without any legal authority, but under false pretences, in defiance of law, and in utter disregard of the city’s rights to construct said road. The defendants’ answer averred their legal existence as a corporation; that a contest between the cities of Allegheny and Pittsburgh for the location of the western terminus of their railroad was terminated by a decision in favour of Pittsburgh, under which the terminus was 'fixed at the foot of Liberty street. Admitted that they were building the road mentioned in the bill, and averred that they ha.d a right so to do under their charter and supplement, and that they were doing the work on the best and most available route, one that would do the least damage to private property and the streets of the city. The bill denied that this work was done as part of the Pittsburgh and Steubenville Railroad, or under any arrangement with that road, but as a.branch of their main road under their chartered privileges, none of which had been waived or forfeited by any act of the company. The cause was heard in the District Court, on the motion for a preliminary injunction, upon .the bill, supplemental bill, and answer of J. Edgar Thompson, and the only question argued was the right of the Pennsylvania Railroad Company, under their charter, to build this road as a “branch” of their main line through the city and over the, Monongahela river. The defendants relied upon the 17th section of their charter, which is in these words :— Section 17. “ The said company shall not prevent any person or persons being the owner or owners of land bordering on or adjacent to said railroad from making lateral railroads, and connecting the same with the railroad of the company for the purpose -of transporting thereon their produce or other material, being the products of said land; the said connections being made at the expense of the person or persons wishing the same, and according to the directions and subject to the approval of the directors of said company or their authorized agents: and it shall be lawful for the said company, in the manner and subject to the conditions and provisions hereinbefore provided in relation to the main line of their said railroad by this act authorized to be made, to make such lateral railroads or branches leading from the main line of their said railroad to such convenient place or points, in either of the counties into or through which the main line of their said road may pass, as the president and directors may deem advantageous, and suited to promote the convenience of the inhabitants thereof, and the interests of said company.” Defendants also relied upon a special Act passed April 23d 1864, which is in these words:— “ That so much of the charter of the Pennsylvania Railroad Company as forbids the location and construction of the route of their railroad through a place of public worship without the consent of the owner or owners thereof, shall not prevent said company from passing under any place of public worship with their tracks by means of a tunnel, in constructing a branch railroad through the city of Pittsburgh from their main tracks, to connect with the railroad of the Western Transportation Company on the south side of the Monongahela river, in the'county of Allegheny.” No testimony was taken, but the cause was argued on bill and answer, and the several Acts of Assembly bearing on the case. The court was of opinion that sufficient reasons did not appear for granting a preliminary injunction, and refused it. It was afterwards agreed between the counsel that the affidavit of J. Edgar Thompson should be considered the answer of defendants to the bills of complainants, and the cause be submitted for a final decree without argument. The affidavit was accordingly filed as an answer, and the District Court entered a formal decree dismissing the bill for the purpose of having the question passed upon by this court; which was the error assigned.
48 Pa. 361Richards v. Elwell (1865)
Error to the Common Pleas of Crawford county, This was an action of ejectment hy Joel Elwell and Nancy his wife against William W. Richards and Benjamin Kysenseder, for about one hundred acres of land, in which there was judgment .for plaintiffs. All the material facts of the case w,ill he found in the opinion of this court.
48 Pa. 367Lycoming Insurance v. Mitchell & Boyle (1864)
Valued policy defined. — “ Warranty” and “ Representation” distinguished.— Condition against over-insurance, binding. — Proof of notice waiving forfeiture. — Interest of assignee of policy need not be communicated to insurance company. 1. 'A valued policy of insurance is not one which estimates merely the value of the property insured, hut which values the loss, and is equivalent to an assessment of damages in the event of a loss. 2. A warranty in a policy is a contract as to an existing fact, and not a covenant for future acts, and differs from a representation in that it is a binding agreement that the fact is as warranted; while a representation is not an agreement that the fact stated is so, but only suoh a statement of it as will constitute a misrepresentation if it be untrue. 3. Where a policy of insurance fixes the value of the property insured, and contains a condition not to insure more than two-thirds of this value, it is an undertaking on the part of the insured, which, if broken, will prevent a recovery on the policy unless the company were informed of the over-insurance and waived the forfeiture. 4. It is errror to submit to the jury the question of notice to the defendant of over-insurance, where the evidence show that none was given to the company or its authorized agent, but only that the fact was ascertained by the agent of another insurance company while transacting business for his principal, and was not communicated to the defendant. 5. The rule which requires an applicant for insurance to set forth the nature of his interest in the property to be insured, does not extend to assignments of policies while in force: hence, it was not error to charge the jury, in an action on a policy for the use of persons to whom it had been assigned, that the omission of the latter to inform the company of the extent of their interest in the property, at the time of the transfer or renewal of the policy, would not prevent a recovery, if the defects in title or otherwise were waived by the proper agent of the company.
48 Pa. 374Cumberland Valley Mutual Protection Co. v. Mitchell (1864)
Fraud in representation as to encumbrances a question of fact, not of law. — Concealment of encumbrances by assignee of policy. — Interest of assignee of policy in insured property need not be stated at transfer.— Waiver of forfeiture of policy. 1. In an action on a policy of insurance, where the defence rested on a false representation by the party insured, as to the existence of encumbrances on the property, it was held not error in the court to refuse to instruct the jury, as matter of law, that it was such a fraud on the company as would avoid the policy. Whether the false representation was or was not wilful and fraudulent, was a question of fact for the jury, under proper instruction as to the effect of such a representation. 2. Nor was it error to refuse to charge the jury, that the concealment of the existence of encumbrances, at the time when the ratification of the transfer of the policy was procured, was such a fraud on the company as would vitiate the policy in the hands of the assignee. 3. It is not necessary that the interest of persons in the property insured be stated, when application is made for the ratification of the transfer of a policy of insurance. 4. A contract of affirmance founded on misrepresentation is voidable but not void, and if an insurance company, after knowledge of the facts, recognise the existence of the contract, by acting upon it, demanding and receiving payments of assessments under it, they thereby waive all right to avoid it.
48 Pa. 380Ingram v. Hartz (1864)
Error to the .Common Pleas of Allegheny county. This was an action of trespass vi et armis de bonis asportatis, by George Hartz against David Ingram and Nicholas Myers, to recover damages for taking certain personal property of the defendant. Hartz was the tenant of David Ingram, and held of him a farm in Indiana township, at an annual rent of $75, payable, as alleged by the landlord, quarterly, in advance; but .as alleged by the tenant, semi-annually. The term of the tenant ended April 1st 1863. The April and July quarters’ rent were paid. On the 16th of March 1863, the tenant rented another farm in Butler county, and commenced to remove his family and goods, when the landlord issued his warrant for $37.50, the amount of the two last quarters, and placed it in the hands of the constable of the township, who, with Arthur Ingram, the agent of the landlord, went to the premises and found there a colt and two cows, prevented their removal by the tenant, and held them for the rent. The constable gave notice of the distress, and caused the property to be regularly appraised on the 21st March 1864, by freeholders, according to law. The colt was appraised at $40, and being of sufficient value to pay the rent, the two cows were returned to the tenant: the colt was then advertised and sold on the 27th of March 1864, for $58, which was applied to rent and costs first, and the surplus or balance, $3.09, paid over by the constable to the tenant. The plaintiff filed a declaration in trespass, to which defendants pleaded not guilty. The defendant’s counsel contended that, by receiving the surplus as above stated, the plaintiff was estopped from denying the legality of the issuing of said warrant, and the regularity of the proceedings under the same; and, also, that he was estopped from denying that the rent for which said warrant was issued was due and in arrear at the time the same was issued; and that the said plaintiff, for the reason aforesaid, could not maintain the action of trespass vi et armis de bonis asportatis, and requested the court to so charge and instruct the jury; but the court refused, and declined to charge as requested in said propositions or either of them. The court further instructed the jury, that “ there was no evidence of irregularity in the proceedings under the landlord’s warrant sufficient to make the plaintiff a trespasser ab initio; that although the declaration was informal, a plea was put in and jury sworn without objection on that ground;” and then proceeded: “The m.ain question at the trial was, whether there was rent in arrear when the warrant was issued and distress was made. Incidentally the plaintiff’s counsel discussed the excessive character of the levy. In the absence of a written request for specific instructions, the jury are instructed that the acceptance of the surplus proceeds of sale by plaintiff would not preclude his recovery in this case for the actual damage he had sustained, if they found no rent in arrear at the time of the levy and distress ; and that the amount received from the constable could only be regarded as satisfaction of the damages pro tanto.” Which was the error assigned here by the defendant, after, a verdict and judgment for plaintiff
48 Pa. 382Bortz v. Bortz (1865)
Agreements, executed and executory, discussed and defined.— Title may vest in feme covert though encumbered with a condition. 1. Whether an agreement for the sale of land is executed, a present conveyance passing title, or executory, contemplating a further assurance, depends upon the intention of the parties, as collected from the whole instrument. 2. Where an agreement for the sale of land to a married woman, in consideration of a sum of money to be paid annually during the lifetime of the grantor and wife for their support, with a provision for increase or reduction, in case the annual sum should be too little or too much for that purpose, contained the formal words of a present deed of conveyance, distinctly conveying the land, was duly executed, acknowledged, and possession delivered, the article was held an executed conveyance vesting the title in the grantee, though the consideration expressed was to be paid in the future. 3. That the grantee was a married woman when the agreement was made, will not prevent the vesting of title in her by the conveyance, though encumbered with a condition.
48 Pa. 387Cambria Iron Co. v. Tomb (1864)
Joint or several entry and settlement on abandoned improvement, by brother and two sisters, a question of fad for the jury. — Basis of legal presumption. — Estoppel in pais discussed.— Verdict in ejectment, when amendable by the court. — Incompetence of party as a witness. 1. Where a single man, with two adult unmarried sisters, entered upon an abandoned improvement, cleared and lived upon it for many years, the sisters claiming ownership with the brother, assisting in all the labour of clearing and cultivation, and paying for labour done upon the farm by other persons, by weaving and otherwise; the question whether the entry and settlement was that of all, or that of the brother only, was for the jury as a matter of fact. 2. The relationship between the parties was not such as to raise the presumption, that their entry and settlement was that of the brother only: and the refusal of the instruction that “ he stood in the attitude of one who was the head of a family, and that the presumption was one of law,” was not error. 3. But where the brother had sold the land in dispute to one under whom the plaintiff claimed, the facts of relationship and family association were proper for submission to the jury, under proper instructions, for them to infer, under all the evidence, whether the sisters had knowledge of Ihe sale. 4. Where there was no evidence that the sisters knew of their brothers’ sale, there was no such presumption of knowledge arising from the existing relationship, as would raise an equitable estoppel against their assertion of title: hence, it was not error to instruct the jury that there was no evidence sufficient to affect their conscience, and make it their duty to interfere: nor to negative a point of the plaintiffs, predicating an estoppel against the sisters from their knowledge (to be inferred by the jury from relationship) of an application by the brother to the land office for the legal title to the land in his own name, or that he had in his own name filed a caveat against the claim and application of another, where no sufficient evidence of such facts had been given. 5. Where, after the sale by the brother, and the removal of all the parties to another tract, his vendee induced them to go back again, giving a lease to the brother: held, That the mere acquiescence of the sisters in the contraen between their brother and his vendee, in the absence of representations misleading him or any fraudulent concealment, would not estop them from asserting their title as tenants in common. 6. The verdict of the jury in favour of the defendants for the undivided two-thirds of the tract of land in dispute, omitting to state that for the other undivided third for which the brother had previously confessed judgment they found for the plaintiffs, was amendable; hence, it was not error to overrule a motion in arrest of judgment based upon the defect in the verdict. 7. The brother, being a defendant and party to the record, was not a competent witness for his co-defendants.
48 Pa. 396Rhodes v. Commonwealth (1864)
Right of jury to fix by their verdict the degree of murder, on trial for that crime. — Rule as to extent of inquiry on subjects introduced on cross-examination. 1. On an indictment for murder which did not charge the offence to have been committed -wilfully, deliberately, and premeditatedly, or by means of poison, or by lying in wait, or in the perpetration of, or attempt to perpetrate arson, rape, robbery or burglary, it was held error in the court to charge the jury: “ If you find the defendant guilty, your verdict must state Guilty of murder in tire first degree in manner and form as he stands indicted. If not guilty, your verdict will simply be Not guilty.” The duty of fixing the degree of murder in such cases belongs exclusively to the jury. 2. Although the rules of evidence require that the inquiry on subjects introduced on cross-examination should he restricted to the extent of the cross-examination, and that no party should be allowed by his own declarations to make evidence for himself; they are not to be strained so as to dissever occurrences clearly allied to each other, or to exclude declarations that are fairly part of the res gestee.
48 Pa. 402Overseers of the Poor v. Overseers of the Poor (1865)
Error to the Common Pleas of Lycoming county. This was an action of assumpsit, by The Overseers of the Poor of Nippenose Township against The Overseers of the Poor of Jersey Shore, to recover the money expended by the plaintiff for the relief of a pauper, whose settlement was alleged to be with the defendant, in which there was a verdict and judgment, for the defendant. The whole case is stated in the opinion of this court.
48 Pa. 407Fessler v. Love & Powell (1865)
Error, to the Common Pleas of Lycoming county. This was an action of assumpsit by Benjamin D. Love and Samuel Powell, partners trading as Love & Powell, against P. Gr. Fessler. The plaintiff declared on two promissory notes made by defendant, dated May 16th and May 17th 1860, for $456.50 at six months, to which the defendant pleaded non assumpsit and payment. The case was this: — On the 10th day of October 1859, the plaintiffs made a written contract with the defendant, to deliver two millions of feet, or more, of white pine logs, at the mouth of Little Clearfield creek, in the spring of 1860, in time for the drives as they pass the mouth of the creek for the Susquehanna Boom, &c., which logs were to be measured by a competent man on the bank of the creek and calculated by the rule; the scaling to be paid for by the parties at equal rates. In consideration of which the defendant agreed to pay $3.70 per thousand for each thousand feet delivered at the mouth of the said creek, in payments as follows: — $1.25 per thousand feet on or before the 10th day of March 1860, and seventy-five cents per thousand feet when said logs were delivered in the said boom, and the residue in two equal payments of three and six months, which two last payments were to take effect immediately after the delivery of the logs into the boom, and the two last payments were to be put in notes of three and six months. On this contract Love & Powell received at its execution $5, as per receipt thereon ; and at different times after the delivery of the logs, including the two notes in suit, to apply on said contract the sum of $3974.82, making in all $3979.32 receipted for by them, exclusive of a running account for supplies furnished. About the 12th day of April 1860, Abraham Newcomer was employed by the parties to scale and calculate the logs at the mouth of Little Clearfield creek, as provided in the contract. He proceeded to perform that duty, Powell and Love both showing him where to measure the lumber. After rendering the account to Love & Powell it amounted to between ten and eleven hundred thousand feet, making a deficit on the amount to be delivered of about one million feet, which were unaccounted for, and never were delivered. The defendant gave notice of his special matter, under the rules of court, and claimed, as an equitable defence to the plaintiffs’ demand on said notes, that they were given in consideration of the agreement on the part of the said Love & Powell to deliver two millions of feet, as stated in the contract, and that he had suffered damage in consequence of the non-fulfilment of said contract. He also claimed the difference of price to be paid at the mouth of Little Clearfield creek, in the spring of 1860, for the drive, and the price at which they could have been sold, or were worth at that time to him, and offered to prove the loss of the bargain, which evidence the court overruled and refused to hear. Also that he was the owner or superintendent of a steam saw-mill at Jaysburg, near the boom referred to in said contract, on which these logs were to be sawed, and for the stocking of which they were then and there so purchased and agreed to be delivered. That for the want of said logs the mill was compelled to remain idle at a very heavy expense; and that he had sustained loss, to wit, in amount exceeding the amount - of plaintiffs’ claim in this suit. Cn the trial the defendant read the contract of 10th October 1859, and receipts thereon, and on account, including the notes in suit, amounting to $3979.32, and then proposed to prove the price of white pine logs in the Susquehanna Boom in the spring of 1860, together with the cost of driving said logs from the mouth of Little Clearfield creek to said boom, which was objected to and rejected by the court. Defendant then offered to show the damages he had sustained as a manufacturer, in purchasing logs on Little Clearfield creek in the spring of 1860, by reason of the nonfeasance of the plaintiffs and the non-fulfilment of their contract to deliver two millions, or more, of lumber, in logs, in time for the spring drives of 1860, and that his mill stood idle for want of said logs; which was also objected to and rejected. The court instructed the jury to find for the plaintiffs the amount of the notes in suit, with interest; to which defendant excepted. There was a verdict and judgment accordingly. Whereupon the defendant sued out this writ, averring here that the court below erred in rejecting the offers above mentioned, and in not permitting the jury to say how much damage defendant had sustained by reason of the non-fulfilment of the contract between the parties.
48 Pa. 411Spaulding v. Andrews (1865)
Error to the Common Pleas of Lycoming county. This was an action of assumpsit by Emanuel Andrews, endorsee of Asa Oliver, against H. C. Spaulding. The plaintiff declared on a parol acceptance by defendant of an inland bill of exchange, drawn by Z. H. Lambert, on the plaintiff, May 10th 1861, at four months, for $174.49, to which the defendant pleaded non assumpsit, payment, payment.with leave, and set-off, and in which there was a verdict and judgment for plaintiff. The case is fully stated in the opinion of the court.
48 Pa. 413Dewart v. Clement (1865)
Error to tbe Common Pleas of Northumberland county. This was an action of replevin brought by William L. Dewart and Edward W. Bright against Ira T. Clement for a canal-boat called “Col. E. W. Bright.” The boat was replevied and delivered to the plaintiffs, who filed a declaration in detinet, to which defendant pleaded non cepit and “property in himself.” On the trial the plaintiffs did not offer to show title in themselves, ■ but gave the writ of replevin in evidence, proved 'the seizure by the sheriff, that the boat was in defendant’s possession at the time, (George Reeser being then present,) and that under the writ he delivered it to the plaintiffs, and thereupon closed their case. The defendant then proved that he- had built the boat in controversy before August 1857, and had sold it to George Reeser and Peter Bright, who ran it for about two years, up to the spring of 1859. That on a judgment wdiich he recovered against Reeser and Bright, February 19th 1859, he sued out an execution levied on the boat, and purchased it at a constable’s sale. , The plaintiffs produced a notice signed by them, which had been read at the constable’s sale, in which it was claimed that one half of the boat belonged to Dewart by bill of sale from Reeser dated January 4th 1859, and the other half to Edward W. Bright, by bill of sale from Peter Bright dated January 15th 1859. They then proved the execution of the bills of sale, and offered them in evidence. The defendants objected to this evidence, because there was no offer to show that the boat was delivered to Dewart and Bright under them, or that there was any change of possession. The court sustained the objection, rejected the offer, and directed the jury to render their verdict in favour of the plaintiffs for such damages as in their opinion (in the absence of proof) would be right, instructing them that the measure of damage was interest on the value of the property from the time it was taken out of defendant’s possession. There was a verdict and judgment accordingly. Whereupon the defendant sued out this writ, and assigned for error the rejection of the bills of sale above mentioned.
48 Pa. 415Slonecker v. Garrett (1865)
This was an action of replevin by Henry Garrett, Joseph N. Bailey, and Anna Cheyney, late partners, trading as Garrett, Baiey & Co., against William M. Hartman, David A. Stowell, Potter Pish, and John Slonecker, for about seventy-seven thousand feet of white pine and hemlock lumber, valued at $1804.10.
48 Pa. 419Malone v. Sallada (1865)
 Location of surveys by calls for adjoiners. 1. In the location of land warrants, the lines run and marked upon the ground are the true survey; and when found, control the calls for natural, or fixed boundaries. 2. Where a younger calls for an older survey as an adjoiner and no lines have been found to have been marked for the younger, the line of the older survey becomes the division line between the two tracts. 3. If no adjoining survey or natural boundary he called for by the younger survey, and no lines he found on the ground, the lines returned into the land office determine the location. 4. But where, from the return of a survey, it is ascertained that the call for an adjoiner is a mistake, the call may be controlled by the line as returned and the other evidence of location contradictory to the call, even though no line can be found on the ground corresponding to that in the return. Per Agnew, <1.
48 Pa. 434Brolasky v. Ferguson (1865)
Landlord and, tenant. — Action for use and occupation must be founded upon, express or implied, contract. In an action for the use and occupation of a lot of ground, the plaintiff cannot recover, without proof of a contract, express or implied, to pay either a stipulated compensation, or such a sum as the use was reasonably worth : nor for occupation prior to the time when the contract was made, or to an acknowledgment by the defendant of his relation as tenant.
48 Pa. 437Castor v. McShaffery (1865)
 Trover not maintainable by party who has neither title nor possession. One who has been hired to take out stone from the quarry of a third person, by a contractor who has contracted with a turnpike company to stone a portion of their road, has no such property in the stones quarried by him after his employer has abandoned his contract, as will enable him, after leaving possession, to maintain trover therefor against the agent of the company by whose order the stones thus quarried had been subsequently placed upon the road.
48 Pa. 439Wolbert v. City of Philadelphia (1865)
Act of April SthlSiG, restricting courts of equity from granting injunctions against erection of public works, construed. — “ Erected, or in progress of erection,” defined. 1. The Act of Assembly of April 8th 1846, forbidding any court of equity in Philadelphia from granting or continuing injunctions against the erection or use of any public works of any kind, erected or in progress of erection, under the authority of an act of the legislature, until the question of damages shall he decided by a common law court, applies to the laying out and' construction of a public park: and also to works “ erected or in progress not at the date of the enactment, but at the timé of the resort to a court of equity. 2. Hence, the claimant of a right of way over land which has been regularly appropriated by the city for a public park, is not entitled to an injunction against the city, where he has not instituted proceedings at law to settle his damages.
48 Pa. 442Megargee v. Wakefield Manufacturing Co. (1865)
 Liability of stockholder of manufacturing companies. The 5th section of tho Act of 27th March 1854, relative to the individual liability of the stockholders in manufacturing companies, is not retroactive, and does not apply to companies which were incorporated and had paid up their stock under the provisions of the Act of April 7th 1849.
48 Pa. 445Keen v. Hopkins (1865)
This was an attachment execution, by John Hopkins against Mary Davis, in which James S. Keen was summoned as garnishee of the defendant. After answering the interrogatories which were filed, Mr. Keen pleaded nulla Iona, and on this plea the cause was tried November 30th 1864, when the jury returned the following: “Verdict for plaintiff, $354.34.” Keen thereupon moved for a new trial, and an arrest of judgment, which motions were disallowed.
48 Pa. 446Manufacturers' & Mechanics' Savings & Loan Co. v. Odd Fellows' Hall Asso'n (1865)
 Official bond, confined to period for which officer was appointed or elected. 1. Where a bond is given by an officer, of an association, conditioned for the faithful performance of his duties, the condition is to be confined to the period of appointment or election for which the bond was given. 2. Hence, where one elected to fill a vacancy as treasurer of an association, gave bond to discharge his duties with fidelity and as justice and equity shall require, upon which judgment was entered by virtue of a warrant of attorney; and, the office being annual, was re-elected, for several years but without another bond, his accounts annually settled, and no deficiency occurring until the year of his death: in the distribution of the proceeds of his real estate, it was Held, that the bond was confined to the period for which he was elected at the time it was given, and that the association were not entitled to payment of the judgment as a continuing lien.
48 Pa. 450Streeper v. Williams (1865)
“Penally” and “ liquidated damages” discussed and defined. — “ Forfeit the sum of” in contract, construed. 1. Equity is the foundation of relief, in cases of forfeiture, and penalties provided in agreements against a breach: but there is no general rule by which to govern all cases, as to what is to be regarded as a penalty and what liquidated damages. 2. Hence, to determine whether a stipulated sum, named in an agreement as a forfeiture for failure of compliance, is intended as a penalty or as liquidated damages, it is necessary to look at the language of the contract, its subject-matter, the intention of the parties as gathered from all its provisions, the ease or difficulty in measuring the breach in damages, and the amount stipulated therefor, and from the whole to gather the view which equity and good conscience require should be taken of the case. 3. Where a hotel-owner agreed to sell it for $14,000, of which $3000 wps to be paid at a specified time, when a deed was to be signed; part possession to be delivered immediately ; and in the contract, the parties agreed to forfeit $500 in case either failed to comply with its terms : Held, that the forfeiture was intended by the parties as a compensation to either in case the other wholly abandoned the contract: and that it was liquidated damages and not a penalty. 4. But as the intention might not determine the equity, on a consideration of the subject-matter and the terms of the contract, the probable risk, trouble, loss, and expense incident to the contemplated change on the part of either, the parties must be regarded ashavingfixedthésum stipulated as the amount of damage each would suffer from a total failure; and the word “ forfeit” was outweighed by the other elements of interpretation, and meant “ to pay.” 5. Hence, where the jury found a verdict for $50, only, of actual damages, subject to points reserved, it was not error thereon, to enter judgment for $500, the amount of the damages fixed by the agreement of the parties.
48 Pa. 456Walden v. Berry (1865)
Error to the Common Pleas of Philadelphia. This was an action brought by Caspar M. Berry, in September 1864, before Alderman Beitler, against Edward Walden, to recover the sum of $71.78, for dinners furnished to a clerk of defendant during a period running from January 4th 1861 to November 12th 1861. There were mutual dealings and transactions between the parties. On the trial before the alderman the plaintiff offered^in evidence a book of original entries, which was objected to by the defendant’s counsel, as not being either a proper book, or the charges the subject of original entries, or the proper evidence produced to support them. It was admitted, however, and the defendant then offered to set off against the suit a promissory note, given by Berry to the order of Walden, for $268.49, dated November 20th 1860, and which amount Walden claimed. This was rejected by the alderman, and judgment entered for the amount of plaintiff’s claim, to which an appeal was taken to the Court of Common Pleas. A copy of the book of original entries was filed, and the defendant filed an affidavit of defence, setting up the note held by him against the plaintiff’s 'demand. Upon a rule taken, the court below entered judgment against the defendant, for want of a sufficient affidavit of defence; which was the error assigned.
48 Pa. 458Maples v. Browne (1865)
 Evidence for defendant in suit by holder of overdue note, when fraud is alleged, and notice to prove consideration has been given. In an action by the assignee or endorsed of an overdue note, against the maker, where notice has been given that proof of the consideration for the making and transfer will be required on the trial, evidence of any train of circumstances tending to show that the note was fraudulently put m circulation, is admissible, for the purpose of compelling the plaintiff to prove the consideration paid by him for it.
48 Pa. 463Callaghan v. McCredy (1865)
Error to the District Court of Philadelphia. This was an amicable action between Dolores McCredy, executrix, and Samuel H. Carpenter and Augustus Wilson, executors of Thomas McCredy, plaintiffs, and George Callaghan and Robert Callaghan, in which the following case was stated for the opinion of the court:— “ On the 21st day of February 1863, the plaintiffs below entered into a contract to sell to the defendant certain real estate in Norristown, Montgomery county. The property was to be sold at public sale, and the defendants agreed to pay for the property $85,000; but as there were other persons who bid upon the property the defendants were compelled to pay $95,400. By that .contract the plaintiffs covenanted to give to the defendants a good and sufficient deed in fee simple on the payment of the money into court. The defendants had the deed drawn and tendered for execution, and paid the money into court. When the plaintiffs executed the deed, they found the stamps would cost $180. They bought the stamps, and put them on the deed, and desired the defendants to pay for them. The defendants refused to do so, and this action brought to recover, the price of the stamps. Can the plaintiffs recover?” The stamps were paid under protest, and an agreement that a case should be stated for the opinion of the court below. The court below (Sharswood, J.) delivered the following opinion:— “ The question presented now is, whether the vendor or vendee, under a contract ‘ to execute a good and sufficient deed in fee simple,’ is bound to pay for the stamps ?■ The case states that ‘ it has for many years been the custom in this city that purchasers of real estate furnish the deed.’ The contract here is not that the vendor shall prepare, but execute the deed. If it had been the former, it would have overridden the custom. But as it does not, we see no reason to refuse full weight to such a usage. It is a reasonable custom. It saves all dispute as to the stylo, manner, and verbiage of the deed, whether it shall be written, or printed on parchment or paper, whether the searches shall be more or less minute. Eventually we know that all taxes and expenses attending the transfer of property fall on the seller. The purchaser, if he calculates closely, includes the expenses of obtaining the title, in his estimate of the price which he will give for the property. Judgment for plaintiffs, $180.” Which was the error assigned.
48 Pa. 466Jauretche v. Proctor (1865)
Certified from the Supreme Court at Nisi Prius. This was an action of covenant, by Matilda Jauretche against John W. Proctor, in which the' following case was stated for the opinion of the court:— “Peter Jauretche, domiciled in the city of Philadelphia, died a the year 1858, seised in fee simple of a certain three-story brick messuage and lot of ground, situate on the west side of Eleventh street, at the distance of seventy-nine feet northward from Pine street, in the said city, containing in front on said Eleventh street nineteen feet six inches, and extending of that width in depth westward one hundred and twenty feet, more or less, together with the free use and privilege of a certain two-feet wide alley and watercourse, running northward from said lot over and across the western end of Captain Julius’s ground, and also of a certain four-and-a-half feet wide alley and watercourse running westward therefrom to Quince street, being the same premises which Francis J. Troubat, by deed, made the 16th day day of February 1852, recorded in Deed Book T. H., No. 8, p. 59, granted and conveyed unto the said Peter Jauretche, his heirs and assigns. The said Peter Jauretche, before his death, made his last will in writing, in the French language, bearing date the 25th day of March 1850, duly proved and registered in the proper office at Philadelphia, by which he disposed of, or is alleged to have disposed of, all his estate, real and personal, including the premises above mentioned. A copy of the said will in the French language, marked A, and a copy of a translation thereof, made in the English language by Mr. Davis, a sworn interpreter, and filed in the register’s office with the original will, marked B, and a translation of said will in the English language, agreed upon by counsel, marked C, are severally hereto annexed, and made part of the case stated. Matilda Jauretche, the widow of said Peter Jauretche, named in his will, and the plaintiff in this suit, asserting herself to be, under the provisions of the said will, well seised in fee simple of the premises above mentioned, made and entered into an agreement in writing with the defendant, John W. Proctor, dated the 17th day of October 1864, whereby she agreed to convey and assure to him, or to such person as he should request, in fee simple, the premises above mentioned, for the price of ten thousand five hundred dollars; and the said John W. Proctor agreed to pay for the said premises the said sum of ten'thousand five hundred dollars, upon receiving a good, marketable, and sufficient title in fee simple to the same. The said Matilda Jauretche, the plaintiff, in fulfilment of her said agreement, has offered to execute and deliver to the said John W. Proctor the defendant, or to such person as he may direct, a fee-simple deed in the usual form, for the said premises; but the said defendant has refused the receive the same in execution of the said agreement, alleging that the said plaintiff does not, under the said will, show a good title in fee simple in herself to the said premises. If the court shall be of opinion that, under the will of the said Peter Jauretche, the said plaintiff is entitled to a present estate in fee simple in the said premises which she can lawfully convey and assure to a purchaser, then judgment is to be entered for the said plaintiff in the sum of five hundred and ten dollars; but, if the court shall be of a contrary opinion, then judgment is to be entered for the said defendant.” The translation of the will agreed upon by the counsel in the cause was as follows:— “ In the name of God, Amen. — I, Peter Jauretche, a native of France, residing in the city of Philadelphia, state of Pennsylvania, merchant by profession, being in perfect health of mind and body, but not knowing the moment at which I may be summoned before my Creator, this is the exposition of my last wishes, revoking every other will that I may have made. “Article 1. After payment of my debts, I name my wife Matilda, my sole and only heir of all my property, present and future, as well movable and real estate as personal property, which I may possess at my death. “Article 2. The plantation which I have at Cambo, with its dependencies, which is now under the charge of Mr. Montluc, of Bayonne, if she can do otherwise, I desire shall not be sold. “ Article 3. She is not to divest herself of what I may leave her until after her death. “ Article 4. At the death of my above-named wife, what I may have left her, that is to say, the residue, is to be divided in equal shares among our children. “ I name for executrix of my above wishes my wife, with Mr. Chs. S. Carstairs, executor. “ In faith of which I have signed the present will this twenty-fifth day of March, of the year eighteen hundred and fifty, at Philadelphia, state of Pennsylvania. (“ Signed) “ Petek Jauketche.” The learned judge, then sitting at Nisi JPrius, delivered no opinion, but ordered judgment to be entered for plaintiff; which was the error assigned.
48 Pa. 472City of Philadelphia v. Reeves & Cabot (1865)
Eukok. to the District Court of Philadelphia. This was an action of covenant, by the City of Philadelphia against Samuel J. Reeves and Joseph Cabot, as sureties of Fort Ihrie. After a declaration in the usual form, on a covenant dated May 9th 1859, between the plaintiff and defendants, for the use of a wharf or landing at the foot of Callowhill street, on the river Delaware; the defendants craved oyer of the instrument on which suit was brought. The plaintiffs thereupon placed on record a copy of the following instrument:— “ Memorandum. The City of Philadelphia demise to Fort Ihrie the wharf or landing at the foot of Callowhill street, on the river Delaware, and the pier and wharf next south thereof, being the same premises heretofore called and known as the Callowhill Street Ferry and Landing, for the term of three years from April 25th 1859, at the annual rent of twenty-three hundred dollars, payable quarterly : the first payment to be made on the 25th day of July 1859; and if the rent shall remain unpaid on any day on which the same ought to be paid, then the lessors may enter on the premises and proceed, by distress and sale of the goods there found, to levy the rent and all costs. The lessee and his sureties, Joseph Cabot and Samuel J. Reeves, covenant with the lessors to pay the rent punctually as above provided for, and the lessee covenants during the term to keep, and at the end thereof peaceably to deliver up the premises, in good order and repair, reasonable wear and tear and damage by accidental fire excepted, and not assign this lease or underlet the premises, or any part thereof. “ And if the lessee shall in any particular violate any one of his said covenants, then the lessors may cause a notice to be left on the premises of their intention to determine this lease, and at the expiration of ten days from the time of so leaving such notice, this lease shall absolutely determine ; and upon the expiration or other determination of this lease, any attorney may immediately thereafter, as attorney for the lessee, sign an agreement for entering, in any competent court, an amicable action and judgment in ejectment (without any stay of execution) against the lessee, and all persons claiming under him, for the recovering by the lessors of possession of the hereby demised premises, for which this shall be a sufficient warrant; and the lessee hereby releases to the lessors all errors and defects whatsoever in entering such action or judgment, or in any proceeding thereon, or concerning the same. No such determination of this lease, nor taking or recovering possession of the premises, shall deprive the lessors of any action against the lessee or his sureties for the rent, or against the lessee for damages. All rights and liabilities herein given to or imposed upon either of the parties hereto shall extend to the heirs, executors, administrators, successors, and assigns of such party. “ In witness whereof the lessee and his sureties have hereunto set their hands and seals, and the corporate seal of the lessors has been hereunto affixed by the mayor of the city of Philadelphia, this 9th day of May, A. D. 1859, the said lease having been awarded prior to the election of the said lessee as a member of common council. “Fort Ihrie. [seal.] “(Signed) “Samuel J. Reeves, [seal.] “Joseph Cabot. [seal.] “ Sealed and delivered in the presence of E. B. McDowell. [seal.] “ Alexander Henry, “Mayor of Philadelphia.” This instrument being read and heard, the defendants by their attorney prayed judgment of the said writ and declaration,. because the supposed covenant in the said declaration mentioned, if any such were made, was jointly made with Fort Ihrie, who sealed and delivered also the said deed, who is still living, to wit, &c., and not by the said Samuel J. Reeves and Joseph Cabot alone, wherefore, inasmuch as the said Fort Ihrie is not named in the said writ and declaration together with the said Samuel J. Reeves and Joseph Cabot, they, the said Samuel J. Reeves and Joseph Cabot, prayed judgment of the writ and declaration, and tha-t the same may be quashed, &c. To this the plaintiff demurred, and stated the following cause of demurrer, viz., “ that the instrument of which there has been oyer, shows on the face thereof that the said defendants are bound as sureties for the said Fort Ihrie, and that by-reason of the subject-matter the said covenant is not jointly with said Fort Ihrie,” &c. The court below entered judgment for the defendants on the demurrer, which was the error assigned.
48 Pa. 477Keen v. Vaughan's (1865)
Accord and satisfaction discussed. — Audita querela refused. 1. An agreement by a creditor to accept a sum of money in payment and satisfaction of a larger debt, does not dischai-ge the debt unless fully executed; nor. can it be enforced, while any part continues executory. 2. Thus where a petition for a writ of audita querela averred an agreement to accept a certain sum in compromise of a larger judgment, and an actual receipt of the greater part, with a tender of the balance, it was not error to refuse the writ.
48 Pa. 480Catherwood v. Collins & Clark (1865)
Error to the District Court of Philadelphia. This was an action of assumpsit, brought by Joseph Collins and Joseph Clark against Hugh Catherwood and H. Wilson Catherwood, trading as Hugh & H. Wilson Catherwood. The plaintiffs were inspectors of domestic distilled spirits, commissioned by the governor in 1858. They appointed a deputy, who had in 1859, as they claimed, inspected eleven hundred and forty-five casks of liquors for the defendants. To recover the. inspection fee of 10 cents per cask on these liquors the present action was brought jointly by the two inspectors. The only proof in the cause came from the deputy inspector himself. He testified that the liquors “ came up to proof,” and that the inspections were made at the defendants’ store. It was not alleged that the defendants were the purchasers of the liquors so inspected. On the contrary it appeared that the plaintiffs were told, when the monthly bills were presented, that they could not expbct the defendants to pay the inspection fees. The duties of this deputy were performed thns. He did not, according to his own statement, inspect each barrel, but merely weighed and tested three or four of a dozen of the same lot or brand. And he never furnished the defendants with a certificate of what he had done. The jury were instructed to find for the plaintiffs, which they did, subject to the opinion of the court on the point reserved, as to whether the plaintiffs were entitled to recover on the evidence submitted. Subsequently, upon argument, the court entered judgment for the plaintiffs; which was the error assigned here for defendants below.
48 Pa. 483McDowell v. Johnson (1865)
This was an action of assumpsit by Jeremiah Johnson against John McDowell, for work and labour done in paving a street in front of property owned by the defendant. The declaration was the common count, to which defendant pleaded non assumpsit. The material facts of the case were these:— In January 1858, the defendant was the owner of certain lots, situate at Eourth and Norris streets, in the city of Philadelphia. The street in front thereof was not paved.
48 Pa. 487In re the Opening of Wharton Street (1865)
Power of Quarter Sessions over award of street viewers. — Landowner may remit part of his damages, and report he confirmed for balance. In a proceeding under the General Road Law for the assessment of damages fór the opening of a street, the Court of Quarter Sessions may permit the landowner in whose favour the viewers have awarded, to remit a part of his damages, and may confirm the report for the balance of the award.
48 Pa. 489Ulrich's Appeal (1865)
This was an appeal by Isaac Ulrich, from the decree of the court below distributing the proceeds of the sheriff’s sale of his real estate.
48 Pa. 491Buckley's Appeal (1865)
Purchase of real estate subject to liens is a contract to indemnify vendor against them. — Parol evidence to explain deed. 1. One who buys property subject to au encumbrance expressly charged in the deed, engages thereby to indemnify the vendor against loss on account of, the charge; and where the vendor is also mortgagee for unpaid purchase-* money, the payment of the encumbrance gives no equity or right of relief against the mortgage. 2. So where the purchase was made subject to mechanics’ liens, not charged in the deed, the payment of the liens does not enable the purchaser to defend pro tanto against the purchase-money mortgage. 3. The rule excluding parol evidence to contradict or alter a written instrument does not prevent the giving of parol evidence of a'consideration not mentioned in the deed, if it be not directly inconsistent with that expressed. 4. Hence, parol evidence was admissible that at the timo of the sale the purchaser agreed to pay both the judgment and the mechanics’ liens.
48 Pa. 497Keen v. Hartman (1865)
Error to the District Court of Philadelphia. This was an action on the case by James S. Keen against John Hartman, Jr., and Mary Ann Hartman. The declaration set forth that on the 5th of February 1858, Mary Ann Hartman, one of the defendants, then the wife of John Hartman, Jr., the other defendant, deceitfully, artfully, knowingly, and fraudulently declared and represented to the plaintiff that she was Mary Ann Coleman, and a widow', and that she was not a married woman; that by reason of this false and deceitful statement she obtained from the plaintiff promissory notes made by one George Moore, and which notes were the property of the plaintiff; that the plaintiff delivered to her these promissory notes in exchange for a bond with warrant of attorney and a mortgage, executed and delivered by her as a widow and single woman, &c.; that when she obtained these notes and executed the bond, &c., she was not a widow, but had been secretly married four days previously to the other defendant; to which the defendants pleaded not guilty. The material facts of the case were these:— Mary Ann Coleman lived in the city of Philadelphia for a number of years as a widow lady. A few days prior to the 5th of February 1858, the plaintiff holding promissory notes to the amount of $2300 against George Moore, the father of defendant, who was at that time solvent, threatened to bring an action against him on said notes, when said Mary Ann Coleman, representing herself as a widow lady, induced the plaintiff to take her bond and mortgage for the sum of $2100 for said notes. The plaintiff agreed to the proposition, and directed his attorney, Lucas Hirst, Esq., to prepare the bond, warrant of attorney, and mortgage, placing said notes in his attorney’s hands to be delivered on the execution of the papers. On the 5th of February 1858, the defendant called at the office of the plaintiff’s attorney, and said she was prepared to execute the papers for said notes. Plaintiff’s counsel, before defendant executed said papers, said to her, “ Are you a widow lady ? for if you are not you cannot execute these papers.” To which she replied, “lam a widow lady, and my name is Mary Ann Coleman.” Upon this representation made by her, plaintiff accepted the bond and mortgage executed by Mary Ann Coleman as a widow, and delivered to her promissory notes to the amount of $2300. Defendant then went before an alderman and acknowledged the mortgage and bond as Mary Ann Coleman, widow lady, and delivered the same to plaintiff’s counsel for plaintiff, for the consideration aforesaid. The plaintiff had no knowledge, either directly or indirectly, of the said defendant being a married woman, until the 28th of January 1860, when her husband, John Hartman, Jr., applied for a rule to strike off the judgment, on the ground that she was a married woman at the time she executed said bond and mortgage, alleging that she was married to him on the 1st of February 1858, which the court refused, but directed an issue to try whether she was a married woman or not at the time of the execution of said bond. This issue was found against the plaintiff, on the ground that she was a married woman, and the decision of the District Court affirmed by this court: See 3 Wright 299. This action was then brought against her and her husband, and a verdict for $1000 rendered against them. There was a motion for a new trial for the following reasons: 1. Because the plaintiff did not prove the averment in his declaration that the defendant, Mary Ann Hartman, had received money or a valuable thing as a consideration for the bond and mortgage mentioned in the declaration, and that the plaintiff had lost by the alleged deceit. 2. Because the verdict of the jury is against the charge of the learned judge and the weight of the evidence. 3. Because the verdict is contrary to the law and evidence. The reasons in arrest of judgment were:— 1. Because the verdict of the jury was rendered against both defendants, when the plaintiff, neither in his declaration nor in his opening to the jury,charged the defendant, John Hartman, with having done any one act that tended towards a fraud or deceit of any kind whatever. . 2. Because the jury at the time of rendering the verdict, at first rendered a verdict for the defendant, and then asked to recall that and rendered one for the plaintiff, and stated, as part of their verdict, that the defendants were not guilty of any fraud or deceit; which is the averment upon which the plaintiff is entitled to a verdict, if at all. The motion for a new trial was refused, and the judgment was arrested; which were the errors assigned.
48 Pa. 501Neff's Appeal (1865)
Appeal from the Register’s Court of Philadelphia. This was an appeal, by William P. Neff, Charles Neff,- and John Neff, Jr., from the decision of the Register’s Court in Philadelphia in relation to the will of their deceased father, John R. Neff. The case was this:— John R. Neff, of Philadelphia, the owner of a large estate, real and personal, made a will, which bore date 22d April 1850. On the 14th of August 1857, he made another will. This last will contained the following clause : “ Hereby revoking all wills and testaments by me at any time heretofore made, and declaring these presents only to be and contain my last will and testament.” He subsequently wrote a codicil on the will of 1850, in these words:— “ On this the 10th day of October, A. D. 1857, for reasons growing out of recent occurrences, I hereby entirely revoke all the provisions of the foregoing will, so far as they relate to my sisters, Hannah Patterson and Rebecca Biggs, and the husband of the latter. “ Witness my hand and seal.” The codicil was properly signed, sealed, and witnessed. The question in the case was, Had the codicil the effect of revoking the second will, and of reviving and republishing the will on which it was written ? The register of wills admitted to probate the will of 1850, and rejected that of 1857,.and the Register’s Court affirmed this decision ; which was the error assigned here.
48 Pa. 510Marsh v. Consolidation Bank (1865)
 Bail for stay of execution on judgment against accommodation drawer of note, discharged, by payment by or for endorsee. In an action against a surety for stay of execution on a judgment obtained by a bank against the maker of a note, evidence is admissible to show that in fact the maker was but an accommodation drawer for a firm, who were second endorsers, and for whose benefit the note was discounted : also that the bank after non-payment and protest obtained judgment against the firm, issued execution, levied upon their goods to an amount sufficient to satisfy the writ, when the debt was paid with the money of the firm, by a third person (to whom the judgment was assigned); for if true, the maker was thereby discharged and his surety was not liable on the recognisance of bail, at the suit of the bank for the use of the nominal payor of the debt.
48 Pa. 512Moloney v. Davis (1865)
Introduction of testimony after closing case, within the discretion of the court. — Set-off claimed in affidavit of defence, not to be evaded by after appropriation by opposite party. 1. After a ease is concluded and counsel have begun to address the jury, it is within the discretion of the court to permit the introduction of further evidence ; and when refused, it is to be presumed, on error, that the discretion was wisely exercised. 2. Where, in a suit for rent between former partners, the defendant in his affidavit of defence alleged a set-off for boarding and coal, the plaintiff cannot evade it by entering a credit on a decree obtained long afterwards on proceedings in equity for a settlement of the partnership accounts. 3. Where the defendant, to establish his set-off, gave in evidence the answers of the plaintiff to a bill of discovery filed by him in the action for rent, in which the plaintiff, admitting the correctness of the account, alleged that it was received on account of the partnership debt, without affirming that the items of the set-off were actually paid on, or appropriated by consent to it, the answers were held evidence of indebtedness; and that it was not error in the court to instruct the jury to inquire as to the indebtedness for rent, and the amount received by plaintiff, and to find a verdict for the party in whose favour the balance should be found.
48 Pa. 514Miller v. Consolidation Bank (1865)
Error to the District Court of Philadelphia. This was an action of assumpsit by The Consolidation Bank against August C. Miller and John P. Persch, late partners trading as Miller & Persch. The plaintiff declared .on a promissory no.te for $6500, dated Philadelphia, August 29th 1863, at two months, signed Miller & Persch, payable to their own order. Endorsed, Miller & Persch, and Persch & Steeb. To this the defendant Miller filed an affidavit of defence, in which he averred that neither he nor the said firm of Miller & Persch received any value for or on account of the note of which a copy is filed in this case; that the said note was made and signed by John P. Persch, then a member of the firm of Miller & Persch, without the knowledge, consent, or subsequent ratification of the affiant; that the said note was then endorsed by the said John P. Persch in the name of Miller & Persch, and Persch & Steeb, and taken by the said John P. Persch to the plaintiffs, by whom it was discounted for the said Persch & Steeb and carried to their credit, and the proceeds were drawn out by the check of the said John P. Persch in the name of Persch .& Steeb, and appropriated to his own use. That the plaintiffs knew well the handwriting of the said John P. Persch, and by that fact had notice that he was using the name of Miller & Persch for his own use and benefit or for that of the firm of Persch & Steeb. In a supplemental affidavit he averred that the note was not drawn in the course of the partnership business, and that under the partnership agreement of the said Miller & Persch, the said John P. Persch had no right to make or endorse any promissory note or other commercial paper in the name of the said firm. And that it was drawn and endorsed as aforesaid by the said John P. Persch in fraud of the affiant and the said firm of Miller & Persch, and was by him fraudulently negotiated. The court entered judgment for want of a sufficient affidavit of defence; whereupon the defendant took this writ, and assigned as error the entry of judgment in favour of the plaintiffs.
48 Pa. 518Barton v. Dickens (1865)
Statute of Limitations, applied to action of replevin.— What trusts are affected by the statute. 1. The trusts not reached or affected by the Statute of Limitations are those technical and continuing trusts, which are not cognisable at law, but fall within the proper peculiar and exclusive jurisdiction of a court of equity. 2. Thus, where one by written agreement sold to another certain machinery to be paid for by instalments and to remain his until paid for, and the vendee took and retained possession for more than six years after the time fixed for the payment of the last instalment, when the vendor brought replevin: Held, that as his right to demand a return of the property accrued when default was made in payment and his remedy thereupon was at law, by replevin: the possession of the vendee was not in trust and within the exclusive jurisdiction of a court of equity, therefore the Statute of Limitations would apply. 3. Hence, it was error to instruct the jury that no presumption arose against the plaintiff from lapse of time, and that the possession of the vendee was in trust and confidence, so that the Statute of Limitations was not applicable.
48 Pa. 524Campbell's Administrator v. Boggs (1855)
Liability of attorney for money collected by Mm.— When Statute of Limitations commences to run in such case. — Burden of proof after six years. 1. An attorney in fact who collects money for his principal is bound to pay it over at once, and his neglect to do so, is a breach of the implied contract for which an action of assumpsit will lie. 2. The Statute of Limitations begins to run from the time the right of action accrues, and not from the time when notice is given of the receipt of the money, unless there had been fraudulent concealment on the part of the attorney. 3. Where more than six years have elapsed from the date of the collection, the onus probandi to take such a ease out of the statute, is on the plaintiff. 4. McDowell v. Potter, 8 Barr 189, reviewed and qualified.
48 Pa. 527Hague v. City of Philadelphia (1865)
 Right to compensation for extra worlc done on contract to build public bridge, controlled by want of power in county commissioners to alter contract. 1. Where, by an Act of Assembly authorizing the construction of a free bridge over the river Schuylkill in the county of Philadelphia, the county commissioners were required to submit the site, plans, and specifications to the county board for confirmation before advertising for proposals: Held, that they had no power, after such confirmation, to change the location, and that where it was changed by the order of the commissioners, the county was not responsible for the additional expense of the change. 2. Hence, in an action by the contractor for extra work and materials required by such change, evidence on the part of the plaintiff that after he had commenced work the county commissioners changed the location against his objection, and required him to proceed upon another site under a promise to pay him any additional expense the work might cost by reason of the change, was held inadmissible.
48 Pa. 531Yearsley's Appeal (1865)
Decedents’ estates. — Distribution not to exceed amount of creditor’s claim. —Sworn statement, when evidence of claim. — Booh entries, when evidence. — Statute of Limitations, when not a bar to claim over six years old. 1. In the settlement of claims against a decedent’s estate, it is not to be presumed that less is demanded by creditors than their just dues, and therefore it is not a sound judgment that confirms a distribution allowing to a creditor more than his original claim. 2. Though a sworn statement of a claim presented to an auditor or administrator is in itself no evidence against a decedent’s estate, yet if the administrator claim the benefit of the credits allowed therein, he makes the paperprimá facie evidence of the debits also, which, however, he may disprove if he can. 3. Thus in a claim on book account, a charge therein for boarding incorrectly made was rightly rejected : but a charge for work and labour done, correctly made under the circumstances, and sustained by extraneous proof, was held admissible, as were also the credits for money received from the employer, entered in the same book and contained in the sworn statement of the employee, when first presented. 4. where an employee engaged at work through the whole of the day and part of the night, charges in his book for services at the end of the week, on Saturday night, and also enters credits thereon for money received during the week, the book is evidence both of the work done and of the credits. 5. Where, upon a debt contracted more than six years before suit brought, credits within that time are endorsed, and an assignment of another claim made by the debtor as collateral security, the Statute of Limitations is not a bar to the action.