49 Pa.

Volume 49 — Pennsylvania State Reports

83 opinions

49 Pa. 9Heist v. Baker (1865)
What charges on real estate constitute a lien.— What are divested by sheriff’s sale. 1. The mere recitation of unpaid purchase-money in a deed, though standing in the channel of the title, does not constitute a lien: but where expressly charged, the lien will be sustained. 2. Therefore, where a deed for land contained the proyision “underand subject to the payment of” a sum of money at the decease of a widow, to children named, the purchaser took it subject to the express lien, which being of indeterminate value and intended to run with the land during the life of the widow, was not divested by a sheriff's sale, in her lifetime. S. Hence a subsequent grantee of the land was liable for the amount of the charge, with interest from the death of the widow, at the suit of the guardian of the children entitled.
49 Pa. 14Sloat v. Royal Insurance (1864)
Certifícate from the Supreme Court at Nisi Prius. This was an action on a policy of insurance by George B. Sloat, to the use of Henry Oroskey & Co., against the Royal Insurance Company, in- which the following case was stated for the opinion of the judge at Nisi Prius :— George B. Sloat was the owner of a brick steam planing-mill, situated in the rear of Beach street, above Shackamaxon street, in the city of Philadelphia, in which were certain machinery, shafting, belting, lathes, drills, and a quantity of stock, finished and unfinished, and materials. On this property he had effected the following insurances The policies were dated and issued in the following order:— On the 20th day of August 1859, and while all the above policies were in force, a loss occurred by fire to the property insured, which was ascertained to be as follows:— Loss on mill building ....... $6,100.74 “ machinery, shafting, belting, tools, &c. . 15,624.00 “ stock ........ 4,160.00 Each of the policies of the Royal Insurance Company contained the following clause endorsed thereon: 6. “ Persons insuring property at this office must, when required, give notice of any other insurance made elsewhere on the same property, in their behalf, and cause a minute or memorandum of any other insurance to be endorsed on their policies, in which case this company shall only be liable to the payment of a rateable proportion of any loss or damage which may be sustained; and unless such notice be given, the insured will not be entitled to any benefit under such policy.” A clause to the same effect, substantially, existed in all the other policies. The following memorandum was made on each of the policies of the Royal Insurance Company: “ Other insurance permitted without notice to this company until required.” The policy of the Philadelphia Fire and Life Insurance Company, was for $2500, on building, machinery, shafting, belting, tools, lathes, planers, drills, and stock finished and unfinished, without dividing the amount among the different objects insured. The insurances effected with the Royal Insurance Company, were divided by the terms of the policies, as mentioned in the beginning of this statement, and the insurances effected with the other companies were also divided as therein mentioned. In adjusting the loss, the defendants claimed that the entire amount ($2500) of the general insurance of the policy of the Philadelphia Fire and Life Insurance Company, should be added to the aggregate amount of all the specific insurances upon each of the three classes of items mentioned in the policies of the Royal Insurance Company respectively, for the purpose of ascertaining the rateable proportion payable on each of the three classes, so as to give to the policy of the Philadelphia Fire and Life Company, for the purpose of contribution, the effect of an insurance of $2500, on each of the three classes. Under this claim, payment was made in full by the defendants of the $2000 policy; and the further sum of $3000 was paid by them in full, of the amount insured on machinery, under the $5000 policy of that company, and also the sum of $1251.43, on account of the insurance of $2000 on the building under the last-mentioned policy, without prejudice to the plaintiff’s right to claim any further sum to which he might be entitled, against that company for loss on building by any other method of adjustment, which should be judicially determined to be correct. The adjustment upon the principle stated, was as follows, showing the amounts payable by each company under their policies : The total amount paid by the Royal Insurance Company on their two policies, was as follows:— On machinery, &c........$4000.00 “ stock......... 1000.00 “ building........1251.43 $6251.43 Leaving an unexhausted insurance on building of $748.57. If the policy of the Philadelphia Fire and Life Insurance Company does not contribute to the loss in building, then the rateable proportion of the policy of the Royal Insurance Company on building will be $1682.96, being $431.53 less than the sum received by the plaintiff from the company for that item. If the court shall be of opinion that the adjustment on the principle of contribution by the Philadelphia Fire and Life Insurance Company, under which the above payments were made by the Royal Insurance Company, is correct, then judgment shall be entered for the defendants, otherwise in favour of the plaintiff to use for such sum not exceeding $431.53 (with interest, to be computed in the ordinary manner), as the court shall be of opinion would have been payable on a correct adjustment of the loss between the several policies. It is further agreed that the pleadings and the several policies shall be treated as part of this case stated. The case was submitted to the court below without argument. The court delivered no opinion, but directed judgment to be entered for the defendants, whereupon the plaintiff took a certificate of error, averring that the learned judge erred:— 1. In directing judgment to be entered for the defendants. 2. In not directing judgment to be entered for the plaintiff for the sum of $431.53, with interest. 3. In not ruling that the general insurance with the Philadelphia Insurance Company was not a double insurance of the property insured. 4. In not ruling that the amount of the insurance with the Philadelphia Insurance Company was to be applied, pro rata, to the indemnity of the plaintiff for the losses not covered by the prior insurances. 5. In ruling that the adjustment upon the principle of adjustment contained in the case stated was correct.
49 Pa. 21Schober v. Mather (1865)
Effect of appearance to action. — Attachment-execution may he served as a summons. 1. A general appearance by a party after service is a waiver of all defects in the writ and the service thereof. 2. An attachment-execution containing a clause of scire facias to the garnishee, requiring an appearance at a time therein named, may be made returnable on the second return day of the next term.
49 Pa. 23Schnitzel's Appeal (1865)
Appeal from the District Court of Philadelphia. This was an appeal, by Katrina Schnitzel, from the decree of the court below confirming the report of the auditor appointed to distribute the proceeds of the sheriff’s sale of the real estate of Christian Schnitzel, deceased. The fund in court for distribution was $5020.42, part of which was distributed to unquestioned liens, without objection. The only contest before the auditor was on the part of John Mast on account of a judgment in favour of Bernhard Gessler, president of The Gustav Adolph Building and Saving Fund Association, entered in the Supreme Court to January Term 1863, No. 63, against Gottlieb Berg and John Mast (“the said John Mast as surety”). On this lien the auditor reported as follows :— The next lien is a judgment in the Supreme Court for $1358.30, obtained March 9th 1836, by Bernhard Gessler, president of the Gustav Adolph Building and Saving Fund Association. This claim was most strenuously contested, and in compliance with request of counsel the auditpr reports the facts connected with it in the fullest detail. On April 17th 1860, Gottlieb Berg and John Mast (the said John Mast as surety), executed to Bernhard Gessler, president of the Gustav Adolph Building and Saving Fund Association a bond and warrant in the sum of $4000, conditioned for the faithful performance on the part of the said Berg of all the duties of treasurer of said association (a copy of which bond was annexed, marked “ G.”), upon which judgment was entered April 19th, in the Supreme Court to July Term 1860, No. 12. On May 29th 1861, a fieri facias was issued on this judgment for $2455.38, with interest from April 1st 1861. On May 31st, the affidavit of Mast having been filed, the court granted a rule to show cause why the above fieri facias should not be set aside, the judgment opened, and the defendant let into a defence; proceedings to stay in the mean time: and on June 22d the amount as endorsed on the writ was reduced by a credit of $1256.90, and the rule was discharged. Berg having been almost daily importuned by Mast to pay the said judgment, and being unable to pay, was advised by his counsel that, under the Act of May 21st 1861, he was entitled to a stay of execution for one year. He informed Mast of this, and of his intention to get the necessary security, and avail himself of the benefit of the act. ■ Mast did not like it, and insisted upon Berg’s paying the judgment, which the latter protested he could not then do, but he expected to be able, within the year, “to help himself.” Berg thereupon solicited Christian Schnitzel to become surety for him; they had several interviews about the matter. He told Schnitzel that he “ wanted to keep the society out for a year;” that he “thought in that time he could help himself, and pay the money,” and that Mast was his surety. Schnitzel wanted counter security, and on July 25th 1861, upon Berg’s promising to indemnify him, he'justified as bail. In fulfilment of his promise, Berg subsequently gave him a judgment-note for $1200, and assigned to him thirty-eight shares of the stock of the Jefferson Building Association, No. 6, said to be worth about $25 a share, Berg’s title to which was after-wards disputed. In the above-mentioned interviews Mast took no part. It did not appear that he was even acquainted with Schnitzel, or that they had ever met. Assured by Berg that it was not in his power to pay, Mast did not object to his obtaining security for stay of execution, and after the security had been entered he seemed to be satisfied with what Berg had done. On May 24th 1862, an alias fieri facias was issued, and Berg’s real estate was levied on and condemned. On June 14th a venditioni exponas was issued. On June 27th the affidavit of Sarah Berg, that Berg was in the army, having been filed, a rule was granted to show cause why the said fieri facias inquisition and venditioni exponas should not be set aside, which was, on December 6th, made absolute. In the mean time, to wit, on November 1st 1862, a scire facias sur recognisance was issued to January Term' 1863, No. 63, at the suit of “Bernhard Gessler, president of the'Gnstav Adolph Building and Saving,Fund Association, against Christian Schnitzel, surety for stay of execution of Gottlieb Berg.” On November 22d an affidavit of defence was filed, and on February 11th 1863 the case was tried and a verdict rendered in favour -of' the plaintiff for $1358.30, upon which, on March 9th, judgment was entered. On March 23d a fieri facias was issued on this judgment, certain premises belonging to Schnitzel wrere levied on and condemned, and subsequently, under'a venditioni exponas issued May 9th, were sold by the sheriff. As this judgment was not reached by the proceeds of sale, on June 27th a phtries fieri facias was issued on the judgment July Term 1860, No. 12, against Berg and Mast. On July 2d the affidavit of Mast (Berg being with the army) having been filed, a rule was granted to show cause why this execution should not be set aside; all proceedings to stay until the further order of the court, which was, on October 2d, discharged. In the mean time, to wit, July 10th, an alias venditioni exponas was issued on the judgment of January Term 1863, No. 63, against Schnitzel, under which certain other premises belonging to him were sold by the sheriff; the money paid into court, and an auditor appointed to distribute it. On October 6th a second pluries fien facias was issued on the judgment July Term 1860, No. 12, against Berg and Mast, under which a levy was made upon the property of the latter. On October 15th the affidavit of Mast having been filed, a rule was granted to show cause why all proceedings should not be stayed “ until the report of the auditor in the case against Schnitzel shall be confirmed absolutely,” which was subsequently discharged. On October 17th Mast paid to the association the judgment against Berg and himself, when it was assigned and marked to his use, and he now claims to be subrogated to the rights of the association against Schnitzel. ■ This, then, is the case of a surety in an original obligation, who, having paid a judgment against his principal and himself, who claimed to be subrogated to the rights of the judgment-creditor, against one who, at the instance of the principal, became surety for stay of execution on that judgment. It would appear to be settled that judgment against principal and surety does not extinguish the relation between them: Commonwealth v. Miller’s Administrators, 8 S. & R. 452; Manufacturers’ and Mechanics’ Bank v. Bank of Pennsylvania, 7 W. & S. 342; Mortland v. Himes, 8 Barr 158; that when the judgment is paid by the surety, it is not discharged, but may be used by him to recover the money he has thus paid: Fleming v. Beaver, 2 Rawle 128; Erb’s Appeal, 2 Penna. R. 298; Croft v. Moore, 9 Watts 451; Lathrop’s Appeal, 1 Barr 517; and when a surety intervenes for the purpose of obtaining time for the principal, a prior surety will have the same rights against him as against the .principal — that such prior surety stands in the place of the creditor, and such latter surety stands in the place of the debtor, and can be relieved only by payment of the debt: Theobald on Principal and Surety, § 271; Burns v. Huntingdon Bank, 1 Penna. R. 395; Pott v. Nathans, 1 W. & S. 155; Cornwell’s Appeal, 7 Id. 308; McCormick’s Administrators v. Irwin, 11 Casey 116. In Lathrop’s Case, 1 Barr 517, Mr. Justice Kennedy, after reviewing the authorities, says: “ From the foregoing cases it would appear that we have adopted the general rule that a surety, by paying the debt of his principal, becomes entitled to be subrogated to all the rights of the creditor, so as to have the benefit of all the securities which the creditor had for the payment of the debt, without any exception,' as well those which became extinct, at law at least, by the act of the surety’s paying the debt, as all collateral securities which the creditor held for the payment of it, which have not been considered as directly extinguished by the surety’s paying the debt.”' In Pott v. Nathans, 1 W. & S. 155, Mr. Justice Sergeant, considering the equities between a surety in an original obligation and a surety for stay of execution, says: “ Such latter surety stipulating at the instance of the principal to pay the debt, suffers no absolute injustice in being obliged to do so, since he is compelled to perform no more than he undertook, and has no •right to complain that he is not allowed to use, as a payment by himself, the money which proceeds from another person whom his principal was previously bound to save harmless.” In McCormick’s Administrators v. Irwin, 11 Casey 115, where it was held that a defendant who had paid under a decree money which should have been paid by his co-defendant, was entitled to .reoover against the surety of the latter on a bond given to stay .proceedings in the case, Mr. Justice Strong says: “ To the creditor both (defendants) may have been equally liable, but' if, as between themselves, there is a superior obligation resting on one to pay the debt, the other, after paying it, may use the creditor’s security to obtain reimbursement. * * * The latter is allowed to take the place of the creditor, and m§ke use of all the creditor’s securities, as if they were his own.” These principles rvould appear to be decisive of the question in the present case, and to establish the claim of Mast (the surety in the original bond) to be subrogated to the rights of the association (the judgment-creditor) against Schnitzel (the surety for stay of execution). It was earnestly argued, however, that in the above-cited cases the, surety held responsible was surety exclusively of the principal in a separate instrument, or in separate proceedings against the principal alone, and not, as in this case, a surety of record on a judgment against both principal and surety, and that as Mast did not object when informed by Berg of his intention to offer security for stay of execution, he must be considered as having been equally benefited, and therefore it would be inequitable to impose the burden of payment upon Schnitzel. It is not perceived what difference it could make whether principal and surety be sued separately or jointly; and, provided that the surety for stay become such at the instance and for the benefit of the principal, whether he he surety in proceedings against the principal alone or in proceedings against, both. In either case the judgment against the surety in the original obligation would be a judgment against him only as surety as to every one but the creditor and those standing in the place of the creditor, and the surety for the stay of execution, at the instance and for the benefit of the principal, would be surety for the principal, and bound to respond to the creditor and those standing in the place of the creditor. If so, and if payment of the judgment by the prior .surety would entitle him to stand in the place of the creditor, then he would have the right to call upon the surety for stay of execution to reimburse him what he had thus paid, unless it should be made to appear that he had either waived or forfeited this right. It is true that Mast did not object when informed by Berg of his intention to offer security for stay of execution, but this was after every effort on his part to induce or persuade Berg to pay the judgment had failed. There was no evidence that Mast was benefited by the stay, and it is n'ot to he presumed that a surety is benefited by an act which, while it extends the limits of his obligation, protects his principal against pursuit. It was expressly denied by Berg that Mast had urged or encouraged him to obtain security, or had anything to do, directly or indirectly, with the arrangements with Schnitzel. Mast wanted the judgment paid, and was constantly complaining that Berg had not paid it, and importuning him to pay it; and he ceased complaining and importuning only when further complaints and importunities were rendered useless by Berg’s claiming the benefit of the stay law. And as the Act of May 21st 1861 entitled Berg to a stay of execdtion, with or without the consent of his surety, it is not perceived why Mast should be held to have either waived or forfeited his rights as surety because he did not persist in objecting to what he could not prevent. On the other hand, it was in proof that Schnitzel became surety for stay of execution at the instance and for the benefit of Berg alone. His purpose was to help Berg to obtain time, within which Berg expected to be able “to help himself,” and save his property. He did not recognise Mast in the transaction. He received from Berg counter security* deemed by him to be sufficient, and undertook to pay, if Berg did -not, and payment of the judgment by Mast, “ whom his principal was previously bound to save harmless,” did not relieve him from, and was not a performance of, his undertaking. The claim of John Mast, under judgment for $1358.30, in favour of Bernhard Gessler, President of the Gustav Adolph Building and Saving Fund Association, with interest, $39.16 (costs having been paid by the sheriff), is accordingly allowed. To this report Katrina Schnitzel, administratrix, excepted as' follows 1. To the finding of the auditor, in contradiction to the record, that Schnitzel went security for stay of execution for Berg only in the case of Gessler v. Berg (S. C. July 1860, No. 12), and to the admission of testimony to contradict the record. 2. To the finding of the auditor that Mast, a defendant in the original judgment, is entitled to subrogation under the judgment (Gessler et al. v. Schnitzel), as against his own surety for stay of execution. 3. To so much of the auditor’s report as finds the judgment (Gessler et al. v. Schnitzel), a lien upon the fund, and to the award of any part of the fund to John Mast. On argument, the exceptions were dismissed, and the report of .the auditor was confirmed, which was the error assigned by the appellant.
49 Pa. 29Larkin v. McMullin (1865)
Post-nuptial settlement by hxisband upon wife, when valid as to his future . creditors. — Intent in conveyance of personal property to trustee for wife, when about to engage in new and hazardous business, lohen a question for the jury. 1. A post-nuptial settlement of personal property, fairly made by a bus-band, not indebted at the time, as a reasonable provision for his wife, is not fraudulent per se; but is void only when made with a fraudulent intent, which he who alleges must prove. 2. The possession Of the wife under such a settlement, being necessarily concurrent with that of her husband, does not render it void. 3. The conveying of goods by the husband, for a nominal consideration, to a trustee in trust for the benefit of his wife, just before or at the time of engaging in a hazardous business, is not necessarily a fraud as to future creditors, but only, if conveyed with an intent to protect the goods from their grasp : and the jury are, generally, to judge of the intent from such badges as the transaction wears.
49 Pa. 36Stevenson v. Burgin (1865)
This was an action of assumpsit by John B. Stevenson against 'George H. Burgin, George H. Burgin, Jr., Charles E. Burgin, John N. Burgin, and William M. Burgin, partners trading as Burgin & Sons.
49 Pa. 46Powell v. Board of Domestic Missions (1865)
Error to the Common Pleas of Montgomery county. ' This was an amicable action in covenant, between the Trustees of the Board of Domestic Missions as plaintiffs, and Samuel D. Powell as defendant, in which the following case was stated for the opinion of the court:— Oliver Carson, late of the township of Plymouth, in the county of Montgomery, Pennsylvania, did, by his last will and testament duly proven, dated February 5th 1842, and remaining on file in the office of the register of wills, &c., of the county of Montgomery, devise, among other things, as follows, to wit: “ Item, 1 give unto Alexander Carson, whom I brought up, and who I acknowledge as my son, the uses and profits of my messuage and lands, with the appurtenances, in the borough of Norristown, for the term of his natural life, and after his decease, if he shall die leaving lawful issue, I give and devise the said messuage and land, with the appurtenances, to the said lawful issue, if one, to him or her, his or her heirs and assigns for ever, but if more than one, to be equally divided amongst them, their heirs and assigns for ever. But if my son Alexander shall die without lawful issue, then I direct said messuage, land, and appurtenances to be sold by my executors, and the proceeds of said sales to be considered as part of the residue of my estate, and given as is hereinafter directed.” The said Alexander Carson entered into possession of the said premises under the said devise, and on September 2d 1846, by deed duly executed, and therein expressed to be for the purpose of barring the estates tail, &c., and duly acknowledged agreeably to the laws of this Commonwealth, and in open Court of Common Pleas in and for the said county of Montgomery, on motion duly entered on the records of said court on the said 2d day of September 1846, in the manner commonly used with respect to sheriff’s deeds, and also duly recorded in the office of the recorder of deeds in and for the said county, being the same county in which the lands and tenements thereby granted lie, on the 3d day of September, A. d. 1846, granted and conveyed the same premises to Isaac Roberts, his heirs and assigns for ever, in the same manner and form of conveyance as if he, the said Alexander Carson, had been-seised thereof in fee simple, and the said Isaac Roberts being a bond fide purchaser of the said premises for a good and valuable consideration. By virtue of divers mesne conveyances the title in part of the said lands so acquired by the said Isaac Roberts under the said deed from Alexander Carson, became vested in the said trustees, &c., the plaintiffs, to wit, in all that certain mansion-house, coach-house, and lot of land situate in the borough of Norris-town, Montgomery county, Pennsylvania, bounded and described as follows, to wit (here followed a description by metes and bounds): containing about three acres of land, more or less. (Being the same premises which the Hon. Hamilton R. Gamble and wife, by deed dated March 11th 1862, recorded at Norris-town in Deed-Book No. 125, page 398, &c., conveyed to the said plaintiffs.) The said Alexander Carson is still living, and has issue, born after the death of the said Oliver Carson, and since the execution of the said deed to bar the entail. On the 1st day of September, A. d. 1864, the said The Trustees of the Board o'f Domestic Missions of the General Assembly of the Presbyterian Chureb in the United States of America, covenanted in writing, under seal, with the said defendant to convey to him, on the 28th day of the same month, the said above-described premises, in fee simple, clear of all encumbrances, for the price of $6500, and on the said last-mentioned day offered to execute and deliver to the said defendant a deed for the said premises in fee simple, upon payment of the said purchase-money in conformity with the terms of the said contract. The said defendant declined to accept the said conveyance, or ■to pay any part of the purchase-money, on the ground that the title of the said corporation plaintiffs in the said lands was only an estate for the life of the said Alexander Carson, and that they were therefore unable to make him a good title to the same in fee simple. If the court should be of opinion that by virtue of the will of the said Oliver Carson, and the deed of said Alexander Carson, the said Isaac Roberts acquired an estate in fee simple in the said lands, judgment to be entered for the plaintiffs for $100; otherwise judgment to be entered for the defendant — the costs to follow the judgment. . The court below, after argument, decided in favour of the plaintiffs, and directed judgment to be entered in the case in •their favour for the sum of $100, with costs, which was accordingly done; whereupon this writ of error was sued out by the defendant, who averred here— 1. That the court erred in rendering judgment in favour of •the plaintiffs in the case stated ; and . 2. That the judgment in the case ought to have been in favour ■of the defendant.
49 Pa. 60North Pennsylvania Railroad v. Heileman (1865)
This was an action of trespass on the case by Christopher Heileman against The North Pennsylvania Railroad Company, to recover damages for injuries to his person and property, by reason of a collision on the defendants’ road. The material facts of the case were these : — On the morning of December 15th 1863, the plaintiff was coming down Dauphin street towards the North Pennsylvania Railroad, which crosses that street at right angles.
49 Pa. 65Bowers v. Still (1865)
Error to the District Court of Philadelphia. This was an action of assumpsit, by Abraham Still against William Gr. Conrow and William Bowers, for work done to the machinery of a mill in Chester county. The declaration contained only the common counts, charging the defendants jointly, with which the plaintiff filed his affidavit of cause of action. William Bowers filed an affidavit of defence, alleging that the plaintiff was employed 'solely by William Gr. Conrow to do the work for which suit was brought, and that he never authorized Conrow or any other person to employ the plaintiff for him or on his account, either solely or jointly, to do any of the work, or furnish any of the articles for the payment of which suit was brought. Both defendants pleaded separately non assumpsit, to which Conrow added an affidavit, setting forth that he had given plaintiff his promissory note for $329.10, on account of the claim filed in the case, on which judgment was subsequently recovered; that in addition to this sum he owed the plaintiff $160.55, against which he had an offset of $50 for old iron in plaintiff’s possession, for which no credit was given. He also averred that much of the work was done in an unworkmanlike manner. On the trial the plaintiff offered in evidence his book of original entries, containing charges made by him against the defendants jointly, as Conrow & Bowers. To which the counsel for Bowers objected, that where parties are jointly charged, and.joint liability is denied, there must be some prior evidence of the joint liability before a book of original entries can be admitted as evidence of such charge. The objection was overruled by the judge, and the charges in the book admitted to be read. The entries together amounted to $489.65, and extended from October 24th 1859 to December 28th 1860. The plaintiff also read entries of credit, as follows: — September 8th 1860. By Kelty’s bill, $3. By a note for three months, $329.10. The plaintiff then gave in evidence deed produced by the defendants on call, from Lewis Heffelfinger, high sheriff of Chester county, to William G. Conrow and William Bowers as tenants in common, dated October 30th 1856, for tract of land with the factory and buildings, situate in Chester county. Also deed endorsed thereon, made by the said William G. Conrow and William Bowers, dated November 28th 1856, by which they declared their respective interests in said property to be as follows:— William G. Conrow, thereof, and William Bowers, 746?7 thereof. The plaintiff then called Edge T. Cope to prove that said Cope did work for mill, and that both said Conrow and said Bowers had called on him and acknowledged a joint liability. The counsel for Bowers objected, but the objection was overruled by the judge, and the witness admitted to testify. Mr. Cope having been affirmed, testified as follows : — “ I am a founder. I carry on business about three miles west of West Chester. Shortly after the defendants purchased the mill in the spring of 1859, they both called at my place. I went with them to the mill: they said they did not know what to do with the mill. I was to take down the machinery, and repair the mill building. They had not then decided what to do. I did no work after three weeks.” Cross-examined: “ There was no one at work at that time but myself and my hands. I was paid for my work.” After examining another witness, John Burk, as to work done at .the factory, who also testified that he had seen Conrow and Bowers at the mill, that both defendants lived in Philadelphia, and that he had received his wages from one Kelty for Conrow & Bowers; had held a lease, dated March 31st 1860, for one of the houses at the mill from Kelty, as “agent for Conrow & Bowers,” and that he was in Oonrow’s office when Bowers employed Kelty, though he did not hear Bowers employ him, or say anything about getting the mill repaired: then closed his case. The defendants then gave in evidence the deeds which had been given in evidence by the plaintiff, and called Anthony Kelty, who testified as follows :— “ I was superintendent of the mill. I was engaged by Con-row. Paper was manufactured at the mill. Mr. Conrow carried on the business. I superintended the repairs. I was engaged by Conrow. I was not employed by Bowers. I ordered goods from the plaintiff. I told him at first start to charge to Conrow & Bowers. I was so directed by Mr. Conrow. I had no authority from Bowers to do so. I do not recollect any conversation in Conrow’s office, as testified to by Burk. I paid wages to Burk. I got the money from Conrow, and paid the hands at the mill. The paper made there was invoiced in Conrow’s name; it was never invoiced in Bowers’s name. Mr. Bowers never authorized me to order goods in Conrow and Bowers’s name. Mr. Bowers came down to the mill on Sundays; he was never there but once on a week-day. All the hands were employed by me, and paid by me, with money from Conrow.” Cross-examined: “I came to the mill in October 1859; I paid cash for Still’s first job; Mr. Conrow brought the leases up; one or two of the tenants were workmen in the mill; the rent of these tenants were taken out of wages; Mr. Bowers, when he came to the mill, looked around, gave no orders ; I never knew an invoice to be made in the name of Conrow & Bowers; I made the invoices 'myself; Mr. Conrow employed Burk; I never saw Bowers but once at Conrow’s office; Conrow told me he got $400 at one time from Bowers; I don’t think I ever gave Still any directions as to whom the work was to be charged, except the first direction.” Re-examined-: “ The' money was not for wages, but for repairs.” The counsel for the defendant William Bowers, then offered in evidence the receipt of William G. Conrow to Bowers for $400 in cash, received by said Conrow from said Bowers, on account of the said Bowers’s proportionate part of the repairs, for which sum Bowers held Conrow’s note. And also receipt from Conrow to Bowers for a note of Bowers for $480, received by Conrow on account of the proportionate part of Bowers for the said repairs. Also, record of suit D. C. City Bank v. Bowers, M. 1861, No. 512, upon the said note. Judgment entered against said Bowers, and marked satisfied. Which offer was objected to by the counsel for the plaintiff, the objection sustained by the judge, and the said testimony ruled out. The witness Anthony Kelty, being shown bills, testified further, as follows: — “I know the handwriting of Mr. Still; these bills were presented to him, and marked correct by me; that is Mr. Still’s signature to the receipt on the bills; the mill was started for the manufacturing of paper in February 1860; after that there were no repairs, except repairs to machinery, caused by the wear and tear thereof, some little to coal-bins excepted; I can tell the portions of these bills which were for repairs, and those which were for the running repairs to machinery.” The defendant then called Thomas K. Ames, who being sworn, testified as follows:— “ I was the book-keeper relative to the paper-mill; I was the book-keeper of William G. Conrow; I knew no one else; I went in February 1860, and stayed about a year; I purchased all the materials used at the mill; I bought for Conrow — some in the city, some in New York; I sold the paper made at the mill; I sold it on account of William G. Conrow; made the bills out in that way; I sold all the paper.” Cross-examined: “ The goods bought by me were transported by railroad — by the West Chester and Media Railroad, and sometimes by the other road; the packages were never marked Con-row & Bowers; the paper was not sold to commission merchants; the bills were made out Thomas K. Ames, agent; I don’t think I ever saw Bowers at the mill; I might have seen Bowers at Conrow’s (Alderman’s) office twenty or fifty times; I was about one-seventh of the time at the mill; I have ordered work at the mill; I ordered work for William G. Conrow; I told Still the work was for mill and for William G. Conrow.” The defendant then called Richard McCalla, and offered to show by him that he sold paper material for the said mill, and that the same was charged to Conrow by his (Conrow’s) orders; which offer was objected to by the counsel for plaintiff, and the objection sustained by the judge, and the testimony ruled out. The defendant then called John C. Davis, and offered to show by this witness the same facts which he had offered to show by the previous witness; which was objected to by the counsel for the plaintiff, and the objection sustained by the judge, and the testimony ruled out. After offering to prove that Mr. Conrow was out of the state, and that his assignee for the benefit of creditors had examined the claims of Conrow against Bowers for repairs, and ascertained that they had been settled, the defendant recalled Anthony Kelty, who testified: “ I have examined these bills. The new bill is all for running expenses. I have marked the running expenses on the other hills, ‘Re.’ I have never heard any declarations by Bowers about the repairs to the mill. Mr. Conrow said Bowers was involved in difficulty, and did not want to pay any money; he (Conrow) was going to carry it on himself. This was after the work was begun.” • Bills of plaintiff, testified to by Kelty, were then given in evidence, amounting to $329.10, having thereon a receipt of plaintiff to William G. Conrow, dated September 8th 1860, for his note at three months for the same, and when paid to be in full. (Signed by the plaintiff.) Also the record of suit brought in District Court by Abraham Still, plaintiff, v. William G. Conrow, to March T. 1860, No. 607, on his said note, dated September 8th 1860, in favour of Abraham Still, at three months, for $329.10. Judgment entered against said Conrow for $336.07. ffl. fa. issued. Returned nulla bona: and closed. The plaintiff in rebuttal then called George A. Sehryoek, a witness, and offered to show by him the declaration of the defendants, that repairs of a similar character were on joint account, the same being done at the same time; which the counsel for the defendant Bowers objected to, but the objection was overruled by the judge. Sehryoek then testified as follows: — “ I am the business agent of Nelson Gavitt; he did repairs to the machinery at the Chester mill from December 1st 1859 to December 5th 1860. Conrow and Bowers gave to Mr. Gavitt their joint note for repairs.” The counsel for the plaintiff then offered in evidence the joint note of William G. Conrow and William Bowers, in favour of Nelson Gavitt, dated August 3d 1860, at four months, for $900; to which offer the counsel for defendant (Bowers) then and there objected, but the objection was overruled by the judge. The said note was then given in evidence. The counsel for the defendant then objected to any declarations of William G. Conrow as being evidence to charge William Bowers; which objection was also overruled by the judge. The witness then further testified: — “ When the work was ordered from Gavitt it was at my instigation. I was acquainted with Mr. Conrow, and I solicited him to give the work. Mr. Conrow said that Bowers was his partner. Suit was brought on the note; it was paid. The money was received from Mr, Morris.” Cross-examined : “ I was not present when the note was given. It was handed to me by Mr. Conrow.” Among the points submitted to the court by the plaintiff there was this:— 3. That the acceptance of the note of Conrow alone for part of the claim sued on, is not payment or satisfaction of the part for which it was given, unless it was intended and accepted by the plaintiff as such payment and satisfaction. In the absence of proof that a note given for an antecedent debt is a satisfaction of the debt, it will be usually an additional or collateral security, and will not preclude the plaintiff from suing on and enforcing the original obligation; which was affirmed. Under these instructions there was a verdict and judgment for plaintiff. Whereupon the defendant (Bowers) sued out this writ, and assigned for error: 1. That the court below erred in admitting the plaintiff’s book of entries to charge the defendants below. 2. In admitting Edge T. Cope to testify that defendants below acknowledged a joint liability to him for other work done by him for them. 3. In rejecting the receipts of William G. Conrow to the plaintiff in error for $400, and note for $480, as also the record of the suit of The City Bank v. Bowers, upon the note mentioned in the receipt. 4. In rejecting the offer of the defendants below to prove, by Richard McOalla, that he sold paper materials for the said mill, and that the same was charged to Conrow by his (Conrow’s) orders. 5. In rejecting the offer of the defendants to prove the same facts by John C. Davis. 6. In admitting George A. Schryock, a witness for the plaintiff below to testify that repairs of a similar character to those done by the said plaintiff below, were on joint account. 7. In admitting in evidence for the plaintiff below the note of William G. Conrow and William Bowers in favour of Nelson Gavitt, for other repairs done by him. 8. In overruling the objection, on behalf of the defendant below, to the declarations of Conrow, as being evidence to charge the defendant below, as testified to by George A. 'Schryock; and 9. The charge of the court below affirming the 3d point of the plaintiff below.
49 Pa. 73Weidensaul v. Reynolds (1865)
This was an action on the case by George Reynolds, late sheriff of Juniata county, against Daniel Weidensaul. The plaintiff declared in trover, and claimed to recover the value of a gray mare, which he alleged he had levied on as the property of Isaac Spayd, under an execution against him at the suit of Charles Boyer. The mare was found by him at the residence of Spayd, hitched in a buggy and tied to the fence.
49 Pa. 79Shay v. Henk (1865)
No revenue stamp required on register’s precept.— What is brought up on writ of error. 1. The precept of a register of wills to the Common Pleas, directing an issue as to the validity of a will, is not “ a writer other original process” under the Act of Congress of July 1st 1862, and does not require a revenue stamp; but if a stamp were required, the omission was cured by the proviso to the 16th section of Act of March 3d 1863, where the precept was neither admitted nor offered in evidence. 2. A writ of error to the Common Pleas brings up only what has occurred thereon, in the suit in which the writ is taken'; hence an issue improperly framed by the register to try the validity of a will, can be corrected only on an appeal from the decree of that officer.
49 Pa. 83Schollenberger v. Seldonridge (1865)
This was an action of assumpsit, by Jacob Seldonridge against Ferdinand Fretton and William Schollenberger, trading as Fret-ton & Schollenberger, to recover the price of a lot of hogs, which plaintiff alleged were sold and delivered to them. Jacob Seldonridge, the plaintiff, is a drover.
49 Pa. 86Gougler v. Price's Administrator (1865)
This was an action of debt by Levi S. Herrold, administrator of Jackson Price, deceased, founded on the following agreement :— “ Article of agreement made and concluded this 2'lst day of October, A. D. 1862, between Abraham Gougler of the first part, and Jackson Price of the second part. Thus the said Jackson Price does agree to go in the place of Abraham Gougler military duty in his place, for the draft made October 16th 1862.
49 Pa. 88Corson v. Mulvany (1865)
'Ejectment to compel specific performance of contract to sell mineral lands. —Mutuality of contract discussed.— Waiver of full performance by vendee. — Ejectment, and bill in equity, concurrent remedies. 1. Where one, by written articles of agreement, agreed to permit another to search for iron-ore on his land for a fixed time, and then to have the option of parchase at a price named, a part to be paid on execution of the deed and the balance secured by mortgage at two years ; in an action of ejectment by vendee, after election to take the land, notice to vendor, and tender of the down-money, to compel specific performance; evidence is not admissible that the contemplated use of the land would destroy its value within the two years, and that the vendee and intended mortgagor was otherwise unable to pay, unless his circumstances had changed since the making of the agreement. 2. An agreement for the purchase of the land at the option of the vendee only is not, for that reason, so devoid of mutuality, that on election and notice, it will not be enforced: nor will the refusal of the vendor to accept the consideration, destroy the mutuality, though the vendee might thereupon retract his election. 3. A vendee may waive full performance of an agreement for the purchase of land and take the title which the vendor can give : and hence if he agree to waive a release of dower by the wife of the vendor, the latter cannot object to performance on the ground that his wife refuses to sign the conveyance. 4. The common law remedy by ejectment as a means of compelling specific performance, is not taken away by the grant of equity powers to the Courts of Common Pleas.
49 Pa. 101North Pennsylvania Railroad v. Rehman (1865)
 Action for damages not sustained against railroad company for cattle Jcilled or injured upon the trade at crossing of public road. An owner of mules killed upon the track of a railroad company by an engine and cars, cannot recover damages therefor, though they escaped from a properly fenced enclosure without his knowledge, and were on the highway at its intersection with the track, at the time of the accident.
49 Pa. 111Emma Myers's Appeal (1865)
This was an appeal by Emma J. Myers, late Emma J. Snyder, and her husband Henry W. Myers, from the decree of the court below confirming the report of the auditor on the account of John S. Snyder and Joseph H. Snyder, executors of Joseph Snyder, deceased.
49 Pa. 114Wilson v. Whitaker (1865)
Error, to the District Court of Philadelphia. This was an action of assumpsit, by Alexander Wilson against George P. Whitaker. The plaintiff declared on a contract by defendant to sell and deliver 45 or 47‡ shares of the stock of “Warren Foundry and Machine Shop Company,” to which defendant pleaded non assumpsit. Under the ruling of the court below there was a verdict and judgment in favour of plaintiff for $31.51,'who thereupon sued out this writ, and assigned for error the several matters mentioned in the opinion of this court. The chief point in controversy was as to the proper measure of damages for the breach of a contract to deliver stock to a purchaser. All the material facts of the case will be found in the opinion of this court.
49 Pa. 118Kilpatrick v. Penrose Ferry Bridge Co. (1865)
ErroA to the District Court of Philadelphia. These were actions of assumpsit, by Samuel Kilpatrick and by Pearson Serrill, against The Penrose Ferry Bridge Company, to recover compensation or salary for services rendered as president and treasurer respectively of said company, in which the plaintiffs were shareholders. In 1853 the company was chartered to construct a bridge over the river Schuylkill, a short distance above the mouth of the river.
49 Pa. 122Kirkpatrick v. Lex & Kirkpatrick (1865)
Rules of court relative to hills of exception enforced. — Evidence on action for conspiracy. 1. The rules of the Supreme Court which require the presentation and settlement of bills of exceptions within a specified time, are for the benefit of defendants and will not be disregarded without their consent. 2. In an action on the case in the nature of a writ of conspiracy, where the declaration charges an unlawful confederacy to abstract money and other valuables belonging to the plaintiff, and apply them to the use of the defendant without the knowledge of the plaintiff, it is necessary to prove the combination and appropriation charged and also that it was illegal, and injurious to the plaintiff.
49 Pa. 126Amey's Appeal (1865)
This was an appeal by John W. Amey from the decree of the Orphans’ Court confirming the auditor’s report on the account of Enoch Rex, administrator of Patrick Hipwell, deceased. The main point in controversy before the auditor, was a claim presented by the appellant amounting to $1725.50, for the labour of himself, two sons, and a horse, from September 1st 1858 to October 2d 1862, and for sundry goods furnished for use of deceased.
49 Pa. 127Thompson's Executors v. Lloyd (1865)
Barbara Lloyd, the plaintiff above named, was his sister, and one of the legatees named in the will. On the 16th of May 1861, he had executed a deed to her, written by and acknowledged before William Eeath, Esq., one of the- above defendants, for the farm on which he then resided, and continued to reside up to the time of his decease.
49 Pa. 129Baringer v. Stiver (1865)
Error to the Common Pleas of Bucks county. This was an action of ejectment, brought by C. Stiver against Frederick C. Baringer, to recover possession of fifteen acres of land in Hilltown township, Bucks county. The plaintiff, in support of his claim, produced evidence to show that on the 20th of August 1855, this property belonged to the defendant, and on that day it was sold by the sheriff to Abraham Swart!ey, to whom a deed was made by the sheriff on the 18th of September 1855. On the 6th of June 1857, Swartley, by deed of that date, conveyed the premises to Julianna Baringer, the wife of the defendant — the consideration being $650. At the time of the execution of the deed, no part of the purchase-money was paid, nor was anything since paid but the interest. On the 1st of August 1862, C. Stiver, the plaintiff in this case, obtained a judgment, upon an award of arbitrators, against Frederick C. Baringer, the defendant, for the sum of $127.93. Under this judgment an execution was issued, returnable to September Term 1862. A levy was made on this property, and after condemnation a venditioni exponas was issued to December Term 1862, under which the sheriff sold all the right of Baringer to the plaintiff Stiver. A deed was made by the sheriff to him on the 9th of December 1862, which was acknowledged the same day. At the time Abraham Swartley made his deed to Julianna Baringer, Philip E. Knapper held a judgment, No. 20,.Decem-ber Term 1854, against E. O. Baringer, amounting to about $200. To maintain the issue on his part, the defendant called Abraham Swartley, who testified that, after having held the property for two years he sold it to Julianna Baringer, who had lived in his family, for a home. That she paid no part of the purchase-money, but paid the interest. The purchase-money was secured by a mortgage, dated the 6th of June 1857. She built a piece to the house and a piece to the barn. She and her husband continued to live on the property as they had done before, and were in possession at the time of the trial. He also called Christian Baringer, his son, who says he gave his mother money for three or four years — -in all, $438. That she applied it to repairing the house and barn. On his cross-examination, he says he gave money to her and paid some to the hands; some to carpenters and some to masons, but could not tell how much. His father paid some, but could not tell how much he or she paid; paid for four years. The money went for the support of the family, repairs, &c. The improvements cost about $300. A note for the sum of $438 was given him by his father and mother. She took the money almost every time. He did not know why his father’s name was put in the note. Elias Hartzell testified that he made the alteration in the note from “I” to “We.” This alteration was made so that he should be bound. The court below (Chapman, P. J.) instructed the jury that, if the testimony was believed, the plaintiff was entitled to recover. There was a verdict and judgment accordingly. Whereupon the defendant sued out this writ, averring: 1. That the court erred in submitting to the jury the question as to whether the deed made to the wife was intended to hinder, delay, or defeat Knapper, the execution-creditor. 2. In charging the jury as follows: “ Is a sale made to a wife, and nothing paid, but a mortgage given by her for the whole of the purchase-money, a fraud in law ? In the abstract it may not be against the policy of the law. But when the husband and wife live together, and he makes advances, increasing the value of the property, it is against the policy of the law.” 3. In charging the jury as-follows: “But if the husband under such circumstances advances money for the improvement of the property, it goes in relief of the wife. He thereby puts his funds out of the reach of his creditors, and secures to his family a portion of his property, thus shielding his property from his creditors. The verdict should be for plaintiff if you believe he has-made such advances.”
49 Pa. 133Tulloch v. Worrall (1865)
Error to the Common Pleas of Delaware county. This was an action of ejectment by Gordon Tulloch and James Velotte against Frazer Worrall, Bryan Field and Mary bis wife, in right of said Mary, Peter Worrall, and Jonah Worrall, to recover a tract of fourteen acres of land in Upper Providence township, Delaware county. The plaintiffs alleged that the title to the land was formerly in Mary Worrall; that on her death, Elias Worrall (a son of Mary and Peter Worrall) took possession of it, and that he acquired title to his brothers’ and sisters’ shares by virtue of the Statute of Limitations. That Elias Worrall died in possession of the property, and by his will devised it to the plaintiffs, and that he was in possession for upwards of forty years previous to his death. The defendants denied that the title ever was in Mary Worrall, and averred that it was in Peter Worrall, her husband. And that even if it was not, the heirs, including Elias, so regarded and treated it, and that it must, therefore, still be so regarded and treated. Peter was in possession for many years before his death, and died there, first making his will, whereby he devised the property to Elias Worrall for life, and on his death without children, to the grandchildren of the testator, who might then be living. It was admitted by the parties that the defendants are the persons designated by the will to take on Elias’s death, and the defendants contended that it was by virtue of this will that Elias entered into and held possession of the land during his life. The plaintiffs gave in evidence the will of Susanna Trego, of Upper Providence, proved August 23d 1765, devising to her mother, Ann Trego, and her heirs, all her lands and rights of lands in Upper Providence or elsewhere, descended to her from her father or otherwise, and the will of Ann Trego, of Upper Providence, proved February 26th 1771, bequeathing to her daughter, Mary Worrall, all the residue of her estate, to be put at interest for her use. The evidence to prove that the property was owned by Mary Worrall, consisted of the wills referred to, and the statements and declarations of Peter Worrall made to, and in pursuance of his wife, while they lived together on the land. He was hauling manure from this property to his Sandy Bank place, when she forbade him, and he asked her to make the property over to him, which she refused, saying, if she did so, he would soon sell it. Her place required the manure as much as his. He used to scold at her about her saying she would not make it over, and he would make offers at her with his cane. He was never heard to claim the land as his own, or to assert that he owned it, when she claimed it. She said in Peter’s presence that the property was hers, and she intended to keep it. On one occasion, at Sandy Bank, Elias asked Peter to fix up that place for him, and Peter told him to go to his mother’s place and fix up a shop there. In the presence of Peter, Mary stated that the property came to her from her parents, and belonged to her, and he did not deny it. The court below, after stating the main facts of the case, charged the jury “ that where a party relies upon evidence of this character (admissions or declarations) to establish title in himself, or to defeat an apparent title in another, the admissions or declarations, to be of value, should be unequivocal, leaving no room for doubt as to what was intended, and should be proven to the entire satisfaction of the jury. If Peter Worrall, while in possession of the land, declared or admitted, distinctly and unequivocally, that it was the property of his wife, this would be evidence of title in her. You will carefully examine the evidence and say whether it shows that such admissions or declarations were made by Peter Worrall, and whether the title to the land was in his wife. “ If you do not find the title to have been in her, the plaintiffs must fail in their suit. “ As I have already stated, the defendants contend that the title never was in Mary Worrall, but in Peter Worrall, her husband. And that even if it was not in Peter, the heirs so regarded it; that Elias entered and held under Peter’s will, and that the plaintiffs cannot, therefore, set up a different title. Now, if the title was in Peter, as I have already said, the plaintiffs cannot recover — they stand on a supposed title in his wife. You have observed that Peter was in possession of the land for many years before his death — a greater length of time, according to the statements of the witnesses, than is required to confer title by possession, where the holding is adverse; that he died there, making a will, whereby he devised the land to his descendants, first to Elias, and after him to others. Now, in the absence of the declarations and admissions imputed to him by the plaintiffs — that is, if he did not make such declarations or admissions against himself (and that question I have submitted to you), — ■ here is sufficient evidence of title in Peter. “ [But even though the title was not in Peter, and was in Mary, yet if the heirs treated it as having been in Peter, and Elias entered under his will, he, Elias, could not thereafter set up a title in Mary, nor can the plaintiffs who come after him.] You have seen that Elias went into possession of the whole tract and occupied it alone during his life. If it had come from the mother, he had not a right to do this, for his brothers and sisters, co-heirs of the mother, were equally entitled to the enjoyment of her estate; while if it were regarded as coming from the father, he had such a right conferred upon him by the will. [Then, did he enter and hold under this will ? Bid the parties, even though the land did not belong to the father, suppose it did, and treat it accordingly ?] You have heard the comments of counsel on the one side and on the other in regard to this, in regard to the presumptions and probabilities arising from the evidence, in relation to it. [I repeat, if the land was so considered and treated, and Elias entered under the will of his father, it must still be so treated, and in such case the plaintiffs cannot recover.] “ On the other hand, if the title was in the mother, Mary Worrall, and you do not find it to have been treated by the heirs as having been in the father, Peter Worrall, then the plaintiffs will be entitled to recover; but how much they will be entitled to recover — whether the entire tract or only a part of it — will depend upon how you shall find another question, which I will now state. Mary Worrall, as we have seen, had other children besides Elias; and if this land belonged to her, it descended on her death not to Elias alone, but to him and his brothers and ■ sisters in equal parts. In such event, if the case rested here, 'the plaintiffs, as I have just stated, Avould be entitled to recover, but they could only ’ recover the share of -Elias, as one of the heirs of the mother — which is admitted to be the one-seventh. The plaintiffs contend, however, as we have already seen, that Elias became possessed of the shares of his brothers and sisters, by virtue of the Statute of Limitations. Ordinarily, where one enters upon land and holds it as men hold their own, for twenty-one years, his possession will give him title, by virtue of the statute referred to. Such holding is regarded as adverse -and hostile, and the lapse of twenty-one years, without interference by the rightful owner, will operate to bar his title. The rule is not so, however, where the question arises between tenants in common. The possession of one of several such tenants is the possession of all; he enters and holds not for himself alone, but for himself and his fellows. [To bar the rights of the co-tenants under the statute, there must be something more than holding alone, and receiving the rents and profits, for such holding, without more appearing, cannot be regarded as adverse. There ' must be some denial, by word or deed, of the rights of the co-tenants, such as a refusal to account on demand, a refusal to permit them to enter, offering the property for sale or rent as his own, or some other act plainly evincing that he holds in hostility to their rights. In other words, there must be an ouster of the co-tenants, that is, dispossession or ejection of them from the premises.] Where, however, a co-tenant in common holds the possession for twenty-one years or upwards, undisturbed, claiming the land as his own (which claim may be evinced in the manner just indicated, by denial of the rights of the co-tenants, or offering the property for sale or rent as his own), the law presumes an ouster to have taken place, and this presumption is binding upon the jury. Where nothing further appears than the long possession, and the exclusive receipt of the rents and profits, the law does not presume such ouster. If, however, in such a case, from the great lapse of time, and attending circumstances, or from' the lapse of time alone, the jury considers it reasonable to believe that an ouster has actually taken place, it may and should so find, and in such case the statute will operate to bar the rights of the co-tenants,- after the expiration of the period of twenty-one years from such ouster. “ if, then, you find the title of this land to have been in Mary Worrall, so that on her death it descended to Elias and his brothers and sisters, and do not find that it was regarded and treated as coming from Peter Worrall, you must inquire and determine whether Elias obtained title to the shares of his brothers and sisters by virtue of the Statute of Limitations, in the manner I have indicated. Did he take possession, without reference or regard to the father’s will, and hold in hostility, adversely, to his brothers and sisters, claiming the property as his own exclusively ? If he did, the plaintiffs will be entitled to recover the entire tract. “ You thus observe the case presents three questions for your consideration: “ 1st. Did the land belong to Mary Worrall? If it did not, you need go no further, the plaintiff in such case cannot recover. If you find it did belong to her, then the second question arises, to-wit: “ 2d. Did the parties, notwithstanding, treat the property as having belonged to Peter Worrall, Elias entering and holding under his will ? If they did, then it must still be so treated, and the plaintiffs cannot recover. “But if the land belonged to Mary Worrall, and was not treated by the heirs as having belonged to Peter, then the plaintiffs are entitled to recover. But how much ? And thus the third question arises, to wit: “ 3d. Did Elias acquire title by virtue of the Statute of Limitations, to the shares of his brothers and sisters ? If he did not, then the plaintiffs (in this view of the case, that is, that the land came from the mother, and was not treated as coming from the father) are entitled to recover the share of Elias, the one-seventh. If he did so acquire title to the shares of his brothers and sisters, then the plaintiffs are entitled to recover the whole tract.” Under these instructions there was a verdict and judgment in favour of the defendants. Whereupon the plaintiffs sued out this 'writ, and averred that the court below erred in so much of the charge as is printed above in brackets.
49 Pa. 141Housekeeper's Appeal (1865)
Who are allowed to try disputed facts on distribution of proceeds of sheriff’s sale. — Proper remedy for person not included in Act of April 20th 1846 on this subject. 1. Under the Act of Assembly of April 20th 1846, the “ persons interested” who are entitled to an issue to try disputed facts, are lien-creditors only. 2. Therefore, where, after sale upon mortgage, the receipt of the purchaser wa,s taken by the sheriff, under the provisions of that act, an heir at law of the mortgagor, who had died before the sale, is not entitled to an issue before the auditor to try the validity of the mortgage. 3. The proper remedy was to appear and defend in the action of scire facias upon the mortgage, when issued against the administrator of the decedent; or to bring ejectment against the purchaser at sheriff’s sale.
49 Pa. 143Dixcy's Executors v. Laning (1865)
Certificate from the Supreme Court at Nisi Prius. This was an action of covenant, by John Thomas and Thomas T. B. Dixcy, executors and trustees under the last will and testament of Thomas Dixcy, deceased, who was assignee of Edward H. Bonsall and Jeremiah Bonsall, administrators of the estate of Henry F. Leib, deceased, vrho was assignee of Oliver Parry and Rachel his wife, and Nathaniel Randolph and Eliza his wife, against Charles Laning and George Sill, with notice to John Thompson, terre-tenant of the premises charged with the ground-rent. The ground-rent deed on which suit was brought was executed 14th September 1855, by Oliver Parry and Rachel his wife, and Nathaniel Randolph and Eliza his wife, to Charles Laning and George Sill, their heirs and assigns, as tenants in common for a lot of ground situate at the south-west corner of Seventeenth and Washington, now Mount Yernon street, in the Fifteenth Ward of the City of Philadelphia; containing in front on Mount Yernon street twenty feet, and extending in length or depth southwardly of that width eighty-nine feet five inches to a four-feet wide alley leading eastward into Seventeenth street; reserving thereout unto the said Parry and Randolph, their heirs and assigns, the yearly ground-rent of $240, payable on the first days of January and July of every year. The deed was recorded in the proper office for recording deeds at Philadelphia, on the 15th September 1855. Parry and Randolph and wives, by deed of assignment duly executed on the 8th of March 1856, and recorded in the office aforesaid on the 13th of March 1856, granted and assigned the said yearly rent of $240 unto Henry F. Leib, since deceased, his heirs and assigns. Edward H. Bonsall and Jeremiah Bonsall, administrators of the estate of the said Henry E. Leib, deceased, in pursuance of an order and decree of an Orphans’ Court for the county of Philadelphia, by deed duly executed 20th March 1858, and recorded the 9th of April 1858, granted and assigned the said yearly ground-rent ef $240 to Thomas Dixcy, recently deceased, his heirs and assigns, by whose last will and codicils thereto he appointed the plaintiffs, John Thomas and Thomas T. B. Dixcy, the executors and trustees thereof, to whom the proper register of wills duly granted letters testamentary on the 13th day of July 1864. To a declaration in the usual form John Thompson, the terretenant, filed the following affidavit of defence:— “That on the 25th July 1856, he purchased the house and lot of ground south-west corner of Washington and Seventeenth streets, city of Philadelphia, subject to a yearly ground-rent of $240, then belonging to the estate of Henry E. Leib, deceased, who died on the 16th May 1856. ■ That from the date of his purchase down to the 1st January 1858, he paid the yearly rent regularly as it became due to the estate of Leib or the representatives thereof, after which date he commenced to pay the same to Thomas Dixcy, the plaintiffs’ testator, who in the mean time had become the owmer of the ground-rent by purchase at an Orphans’ Court sale, under an order of that court, made 5th January 1858, authorizing the administrators of Leib’s estate to sell the same for the payment of his'debts; in pursuance of which they sold the same, and so made return thereof on the' 19th March 1858, on which day the Orphans’ Court confirmed the sale, and ordered the administrators to enter the usual security in the sum of $4500. “ That on the next day Thomas Dixcy paid over to the administrators the full amount of the said purchase-money, $3400, at the same time taking from them a deed of the said' ground-rent, duly executed and acknowledged, and which was shortly after-wards, to wit, on the 9th of April 1858, placed of record at Philadelphia. “ That after the above-mentioned sale and conveyance, he paid the yearly rent regularly as it fell due to the said Thomas Dixcy, the said purchaser of the ground-rent at Orphans’ Court sale, and so continued to pay the same down to the 1st January 1862, about which time he received a note from the counsel of the heirs of the said Henry P. Leib, deceased, cautioning him against paying any more ground-rent to the said Thomas Dixcy, alleging that the title of the said Dixcy to the said ground-rent was invalid and void in law, in consequence' of the omission, on the part of the administrators of Leib, to enter the security ordered by the Orphans’ Court on the said 19th March 1858, to be entered by them on the confirmation of the sale of the ground-rent. That the said heirs of Leib, in order to test the validity of the title of Thomas Dixcy to the said ground-rent, have brought suit against this deponent in the District Court, in the city and county of Philadelphia, and claim to recover therein from this deponent the identical arrears of ground-rent for which the present suit has been brought. “ That since the above-mentioned notice was given to him, he he has been and is now ready and willing to pay the arrears of ground-rent for which the present suit is brought, but submits that he cannot with safety do so while it is uncertain and undetermined to whom it is legally payable.” On hearing, the learned judge, before whom the cause was tried, entered judgment in favour of the plaintiffs. This writ was then suid out by the defendants, who averred here that the learned judge erred in entering judgment for plaintiffs because— 1. The aflidavit of defence set up a good defence in law. 2. The omission on the part of the administrators of Henry F. Leib to enter the security ordered by the Orphans’ Court on the 19th March 1858, was fatal to the validity of Dixcy’s title. 3. The Acts of March 1832, § 33, and 24th February 1834, § 43, relating to sales of decedents’ real estates, require the filing of a bond for the faithful application of the proceeds of' sale, and the administrators of Henry F. Leib having omitted to file such a bond, Dixcy could not acquire a valid title under the sale. 4. The suit now pending in the District Court to December Term 1862, No. 68, against Thompson, the appellant, was brought to test the validity of Dixcy’s title, on the ground of the omission of Leib’s administrators to file the bond, which is a material fact, and a bar to the plaintiff’s suit, if sustained. 5. The appellant should have been permitted to show in a trial of the case that Leib’s administrators had omitted to enter the bond. . And 6. Because the court entered judgment for the plaintiffs, notwithstanding the affidavit of defence.
49 Pa. 147Smith v. Brooke (1865)
What wages are exempt from, execution. — Appropriation of payments on account. 1. If a master carpenter receive from Ms employer for the labour of his hands more than the wages paid by him to them, the profits on labour thus received, are not exempt from attachment, under the Act of 16th June 1836. 2. Where, of the whole amount due the builder, part is for his individual services and a part are profits of labour, the employer has the right of appropriating the payments made by him on account, to either fund: if he do not, the employee may: if exercised by neither, then the law will make the appropriation. 3. Thus where a creditor of the mechanic attaches the balance due in the hands of his employer as garnishee, as against the latter, the creditor succeeds to all his debtor’s rights : and therefore the law will appropriate the partial payments in such a manner as will most benefit the attaching creditor, that is, to the fund protected by the statute, the wages for individual labour. 4. Where the question of appropriation is left to the jury, who apply it as the law would have done, the garnishee cannot complain of the submission of the question to the jury: for an imperative ruling of the question as matter of law would have necessarily been adverse to him.
49 Pa. 151Burton v. Fulton (1865)
 Public officers when not answerable in damages for their conduct. 1. Public officers, acting within the scope of their authority, are not answerable in damages for the consequences of their acts, unless done maliciously and with an intent to injure. 2. Hence an action is not maintainable by a teacher against school directors for maliciously conspiring to remove her from her position, without proof of malice, an intent to injure, and an unlawful conspiracy: and where no such proof was made the plaintiff was properly nonsuited, upon the trial of the case. 3. Mere negative evidence of want of probable cause for removal by showing general good conduct and capacity as a teacher, is not sufficient proof of malice either in the directors or the committee exercising the powers committed to them by the Board, in relation to the removal.
49 Pa. 155Bennett v. Fulmer (1865)
Power of administrator to confess judgment on sci. fa. and waive inquisition. — Proof of execution of lease by subscribing witness. — Record of conviction for forcible entry not evidence in action for a trespass on same property. — Evidence necessary to establish trust in real estate. 1. An administrator may appear to a scire facias for the revival of a judgment obtained against his decedent in his lifetime and confess judgment thereon ; and may also waive inquisition on an execution issued upon the judgment confessed; and in an action of trespass in which the defendant justified under title derived.by purchase at the sheriff's sale, it is not a valid objection to the admission of the scire facias and proceedings under it, that the agreement for the confession of judgment contained a stipulation that the money should be made of the goods and chattels of the decedent only: nor was it necessary that the widow and heirs should have been made parties to the scire facias. 2. Where a subscribing witness called to prove the execution of a lease recognises his signature as such, and has knowledge of the signature of one of the parties, and of the presence of the other, whose handwriting is proved by another witness, the proof is sufficient-, and the lease admissible in evidence though the subscribing witness could not remember the act of signing. 3. The record of a criminal prosecution against defendants for forcible entry and detainer, wherein plaintiffs were prosecutors and witnesses, is not admissible on the trial of the civil action of trespass involving the title to the premises. 4. Where the plaintiffs in the action of trespass claimed title under an Orphans’ Court sale as the property of a former owner, and after proving the sale, and the acts of trespass, rested; and the defendant, under the plea of liberum, tenementum, gave in evidence a deed from that owner to his son, the entry of judgments against the latter, the revival of one of them after his death by his administrator, a sheriff's sale and purchase thereunder; in answer to which the plaintiffs attempted to show a trust in the son: held that only such evidence was admissible to establish it, as, if true, would make out a case in which a chancellor would decree a conveyance. 5. Hence where more than twenty years had passed without an attempt to enforce the trust, and the payment of a money consideration for the conveyance by the son was proved, as also that the father had lived on the land until his death, as tenant under lease from the son contemporaneous with the deed; evidence of the declarations of the son that he held the land in trust, made after the conveyance to him, was inadmissible.
49 Pa. 163Gordner's Administrators v. Heffley (1865)
This was an action of assumpsit by Julia A. Heffley against Benjamin Gordner and David G. Gordner, administrators, &c., of George Gordner, deceased, to recover compensation for work and labour done for deceased during his lifetime; to which the defendants pleaded non assumpsit. The deceased had a wife, but never had children. His wife was an aunt of plaintiff.
49 Pa. 168Koons v. Headley (1865)
Justice of the peace, on expiration of term of office, must deliver doclcet and papers to successor. — Transcript not sufficient as a foundation for a proceeding before another justice. 1. Under the Act of 21st April 1846, it is the duty of a justice of the peace upon the expiration of his term of office, to deliver his docket and papers to his successor in office. 2. Hence, he has no right to retain his docket, and certify a transcript as the foundation for a continued proceeding before another justice ; and the justice to whom it is delivered has no jurisdiction whatever, nor can any be given by an appeal to Common Pleas.
49 Pa. 174Ridgway v. O'Neill (1865)
 Law relative to reduction of taxes for prompt payment. The Act of April 29th 1844 and that of 13th May 1856, are both repealed by the Act of 30th April 1864, so that tax-payers in Philadelphia are not entitled to five per cent, deduction for prompt payment of state taxes.
49 Pa. 177Shaw's Appeal (1865)
Appeal from the Common Pleas of Clearfield county. This was an appeal by A. • B. Shaw from the decree of the court below on the distribution of the proceeds of the sheriff’s sale of the real estate of Ellis R. Livergood. The case was this:— The money in court was $500, the proceeds of sale of real estate of Ellis R. Livergood, under two writs of fieri facias, to June Term 1863 — the former in favour of A. B. Shaw for $983.58, and the latter in favour of Hugh Orr for $118. The sale was made on the 16th day of June, A. D. 1863 — no vend. ex. having been issued. The judgment in favour of A. B. Shaw for $983.58, was the first lien upon the property sold, and the plaintiff in that judgment claimed the entire proceeds of the sale. The defendant claimed that $300 should be allowed to him, and between these two claimants the contest arose. Livergood owned no other real estate in Clearfield county. For some months prior to the sale of his realty he had avowed his attention of removing to the West, and it appeared by testimony, that he had sold at private sale in the spring of 1863, numerous articles of personal property, amounting, in the whole, to the sum of $200, or thereabouts. One of these articles was a bay mare, for which he had given the judgment-note to Orr. On the 27th day of May, a. d. 1863, a vendue was held at the house of Livergood, which had been advertised as the vendue of Jane Livergood, wife of defendant, and Washington Livergood, his half-brother, who resided with him, and accompanied him to the West. The proceeds of that vendue amounted to about $150. All of the articles sold had been in the possession of defendant, and used by him, before and up to the day of sale, and it appeared that the defendant received a part of the proceeds of sale. It was also in proof that the defendant had said he had about $1400 in cash to take with him to the West. The family left the premises on the day after the vendue, and on the 3d of June 1863, the defendant left the county with his family, and went to Iowa, where he now resides. The fi. fa. No. 96, June Term 1863, in favour of A. B. Shaw, for $983.58, was lodged in the sheriff’s office on the 19th day of May 1863. On that day the defendant handed the sheriff a paper bearing date 19th day of May 1863, in which he waived the right of inquisition, and agreed that the sheriff might sell upon fi. fa. the same as though inquisition had been held, but did not relinquish, but expressly claimed the benefits of the laws of this Commonwealth allowing him $300 worth of property, free and exempt from all executions the sheriff may have in his hands, and notified the sheriff to have appraised and set out to him, out of his real estate, $300 worth of property, before making any sale, and in the manner provided by law. The fi. fa. in favour of Hugh Orr for $118 was lodged in the sheriff’s office on the 26th day of May 1863, and a similar paper, dated 26th May 1863, was handed to the sheriff by defendant. On this writ return was made that the property could not be divided without injuring the sale of the balance. The judgment-creditors resisted the claim of the defendant for the $300, on the ground:— First. That the defendant had received $300 out of his personalty, was an insolvent debtor committing a fraud upon his creditors, and was out of the state at the day of the sale. Second. That the claim made for the $300 being connected with and given at the time of waiver of inquisition and agreement to sell upon the jfi.fa., was irregular, and did not authorize the sheriff to value the property. The auditor decided that a waiver of a right of inquisition upon certain described premises, connected with a claim for an appraisement, and setting out of premises from the same land to the value of $300, were in their very terms contradictory, and could not stand together. That the waiver of inquisition was valid, and the claim for appraisement irregular and void. That in all proceedings of this character a term must intervene between the appraisement and the sale, and that in proceedings not expressly saved by the terms of the Act of 1849, a writ of vend. ex. must issue to make the sale. lie therefore distributed the money in court without regard to the defendant’s claim for exemption. To this report exceptions were filed, on hearing which, the court below reversed so much of the report as rejected the defendant’s claim for the $300 under the Exemption Law, awarded that sum to him, and distributed the balance to Shaw, charging him with the costs of the audit, which was the error assigned here by the appellee.
49 Pa. 182Leiby's Appeal (1865)
Appeal from the Orphans’ Court of Berks county. This was an appeal by Jacob U. Leiby, guardian of Helena Louisa Miller, from the decree of the court in the matter of the petition of Hannah Miller, widow of Ephraim Miller, for a citation to compel him to pay to her for the support of her minor daughter, the said Helen Louisa, the sum of $50 annually. The petition of Hannah Miller set forth, that Jacob U. Leiby, of Greenwich township, Berks county aforesaid, was appointed guardian of the said Helena on the 30th day of January 1857 ; that the sum of $1000 came into his hands as guardian ; and that subsequently to the receipt of said money, to wit, on the 30th day of January, A. D. 1860, he entered into articles of agreement with the petitioner, whereby he agreed to pay to her the sum of $50 per annum for the boarding, maintenance, clothing, nursing, and schooling of the said Helena Louisa Miller, until she arrived at the age of seven years; that Ephraim Miller, deceased, made no provision for the support and maintenance and education of the said child; and that there are no other means for the maintenance and education of said Helena, with the exception of the said $1000: and prayed that the court may ratify the contract made as aforesaid, and authorize the guardian to pay the sum of $50 per annum, from the date of the contract, of direct and decree such other reasonable and adequate allowance and provision for the support, education, and maintenance of the said minor child, as to the said court may deem proper and just. The answer of the guardian admitted that he was appointed guardian of said minor child, and that shortly after he received from Samuel Miller, the grandfather of said minor, the sum of $200 for the said petitioner, which he was directed to give to said widow, which he did; and also that he received at the same time the further sum of $1000 for the said minor child from Samuel Miller, who at the same time said that he was going to make a writing that if said child died before arriving of age, the said $1000 should fall back to him; that on or about the 30th day of January 1860, respondent paid to Hannah Miller $150 for boarding and clothing said minor child, and promised her to pay her the further sum of $50 a year until the said minor child arrived at the age of seven years; that at the time this was done, he supposed he had perfect right so to do, but was immediately thereafter informed by said Samuel Miller that the writing which he had made in regard to said $1000 would not permit him to make any such disposition of said money. That he was willing to obey the directions of the court in this and any other matter, but represented that it was impossible to make any further payment for the support and maintenance of said minor, as by so doing he would make himself responsible to said Samuel Miller for any sum so paid. That when he paid the said money, and made the said promise, he was not aware of the terms of said writing; and that he has no other money or property in hand belonging to said minor except said $1000 and the interest which has accrued thereon. The writing (which was in German) was as follows:— “ I, the undersigned Samuel Miller, of Albany township, Berks county, give and make over hereby to Helena Miller, daughter of Ephraim Miller, deceased, the sum of $1000, as (erbschaft) inheritance. But should the said Helena Miller die before she attains the age of twenty-one years, then shall the aforesaid $1000, with the interest, be paid back to the said Samuel Miller, or his surviving heirs. Further, I appoint Jacob U. Leiby, my son-in-law, guardian of the girl (Helena). “ In witness of the above instrument, I sign and seal it with my hand and seal this fifth day of April, in the year one thousand eight hundred and fifty-seven (1857), in the presence of witnesses. “ Peter A. Kline. “ Samuel Miller, [l. s.] “Peter Kline.” The matter was then referred to James B. Bechtel, Esq., to take testimony and report facts, together with his opinion as to the propriety of granting the prayer of the petitioner. The auditor, after reporting the facts substantially as above stated, disposed of the case as follows:— “ The instrument executed by Samuel Miller seems to be the only obstacle, if any, in the way of granting this prayer. The recording of this instrument, not being embraced in the recording act, could not give it any vitality: 7 W. & S. 16. It was no ‘instrument of writing given to a guardian,’ ‘in the language of the act,’ for there never was a delivery, and the recording was no notice of its existence. It was executed by one party only, its existence being entirely unknown to the other party, whose rights are to be thereby affected. It cannot be considered a testamentary writing in the nature of a will, without also considering the money in the nature of a contingent legacy, in which case the court would have power to grant the prayer of the petitioner: 7 Harris 49. The instrument itself calls the money ‘ erbschaft’ inheritance; and to give effect to this word, which occurs in the beginning of the instrument, the money given to Helena Louisa Miller must be considered an advancement, which is an irrevocable gift; and as Ephraim Miller did not make adequate provision for the minor’s support and education during her minority, the case would (considering the money advancement) come within the provisions of the 13th section of the Act of March 29th 1832. See Purd. Dig. 192, pl. 37, ed. of 1856. “ The next favourable view that can be taken to give effect to the instrument, is to consider its execution by Samuel Miller as the act by which the minor acquired her right to the money. Viewed in this light the instrument would vest $1000 in the guardian as trustee for the minor, with a direction that the interest thereon should accumulate until the minor arrived at the age of twenty-one years, at which time she would also be entitled to receive the accumulated.interest. Under this view of the case, the court would have power to grant the prayer of the petitioner by the provisions of the 9th section of the Act of April 18th 1853. See Purd. Dig. ed. of 1856, p. 701, pl. 9. It is true, this act says the decree for such allowance shall he made ‘ on application of the guardian.’ But the guardian may be delinquent in his duty in this respect, while the minor is suffering. It seems, therefore, to your auditor that the case being before the court in a form in which the guardian is a party, the wants of the minor and the spirit of the act would justify a decision of the case upon its merits. “ In the foregoing views your auditor has endeavoured to give some effect to this instrument; but he is not satisfied that any more regard can be paid to it in this case than if the terms and conditions it contains had existed merely in the mind of Samuel Miller, without having been reduced to writing. The circumstances under which it was executed, the recording of it, as well as its singular and contradictory provisions, make it perhaps without a parallel in judicial proceedings. It even seeks to clothe Jacob IT. Leiby with the power of a guardian, and its execution was altogether an ex parte transaction. Its execution as well as the recording of it would seem to be a nullity. The money delivered to the guardian was no doubt in consideration of the relation by blood, which Samuel Miller bore to the minor, who had supplied the place of a deceased son. If so, it could not be revoked or burdened with conditions after it had passed into the guardian’s hands, at the pleasure of the donor. “ Hannah Miller, the mother of the minor, is an industrious woman, of good moral character. The custody of the minor, especially during her early years, could not be given to any other person who would exercise over her the same tender care as that induced by the affection -of a mother. It is also the opinion of your auditor that the money paid by the guardian to Hannah Miller for the support and education of the minor, was a prudent and proper expenditure, and that the contract made by him for her future .support and education, is the best that could be done for the interests of the minor. “ If your auditor is correct in his view of the law, there can be no question as to the propriety of granting the prayer of the petitioner, especially as Samuel Miller stated that he would make no objection to it.” To this report exceptions were filed; but the court below (Woodward, P. J.) dismissed the exceptions and confirmed the report, delivering the following opinion :— “ The auditor has disposed of all the questions referred to him in a very satisfactory way. The principles announced in Seibert’s Appeal, 7 Harris 49, conclusively show that this application ought to be granted. And this is so, whatever may be the effect of the instrument executed by Samuel Miller upon the principal of the fund hereafter, in case of the death of Helena Louisa Miller in her minority. The English cases cited in Seibert’s Appeal lay stress upon the provision of tbe statute of 43 Elizabeth, making a grandfather as well as a father liable for the support of a pauper; and a similar provision is incorporated in our Act of the 13th of June 1836. The effect of the instrument in question upon the residue of the fund is not considered in any way. That may be the subject of future controversy. All that 'is decided now is, that its existence is no bar to the allowance asked for. “ It is ordered that the report of the auditor be confirmed, and that the prayer of the petitioner be granted.” Which was the error assigned.
49 Pa. 186Catawissa Railroad v. Armstrong (1865)
Liability of railroad company for injuries done to persons on their track. —Duty of persons on railroad track.— Concurring negligence discussed. —Liability for injury to employees on road.— Competency of witness for defendant in such cases. 1. It is the duty of all persons on the track of a railroad, and. rightfully there but in subordination to the right of passing trains, to exercise that care which prudence would suggest, measured by the standard of care that a prudent man would naturally adopt under the circumstances. 2. Therefore, where a track repairer was killed at night by the collision of a backing train of ears with a hand-car in which he with others, was, approaching the station at which the train had been standing, it was held, in an action by his wife to recover damages therefor, that it was error to instruct the jury, that if the deceased knew that the train was at the station he was not guilty of negligence in approaching it in a hand-car, unless he knew the train was in motion: for though the court might have declared it not negligence to approach the train, at the station, yet the instruction given, placed the question of negligence on the knowledge of the moving train brought home to the deceased, and not upon the degree of care, which under the circumstances, he should reasonably, as a prudent man, have exercised. 3. Though defendant’s point, alleging it to have been negligence on the part of the deceased knowingly to approach a train, at the station, might properly have been negatived, yet the question of negligence should have been referred to the jury ; a railroad company has the right to rely as well upon its own care, as upon the negligence of the party injured, and therefore the question whether, with proper care on his part, the accident might not have been avoided, should have been expressly presented to the jury. 4. Courts will not draw the line between contributing acts of negligence in determining their consequences: in such cases, neither party can recover from the other, for an injury resulting therefrom. 5. Hence, though the jury were instructed that if the deceased was guilty of negligence which contributed to the accident, the plaintiff could not recover, even if the defendant’s employees were also guilty; it was error to add in connection that very slight negligence on the part of the defendant would not prevent a recovery, especially when the instruction was afterwards given, that there could be no recovery where the negligence was equal. 6. Where the deceased was in the sole employ of one railroad company, and the injury was caused by the cars of another company who had the right to run their trains over the other’s road, the plaintiff is not precluded from recovery on the ground that her husband was in the same general employ with the defendant’s servants ; the rule that where several persons are in the same general employment, and one is injured from the carelessness of another, the employer is not responsible, is not to be extended beyond the limit of adjudged cases. 7. The engineer in charge of a colliding train is not a competent witness for the defendants, without a release.
49 Pa. 195Paxson's Appeal (1865)
Appeal from the District Court of Philadelphia. This wras an appeal, by Edward M. Paxson, from the decree of the court helow, distributing the fund arising from the sheriff’s sale of the barque St. James, which was sold, under certain executions, as the property of James Devereux. The facts of the case, as found by the auditor, were these:— The oldest writ, which was an alias fi. fa. for William Hill v. James Devereux (697, December 1862), was placed in the hands of the sheriff at fifty-five minutes past twelve o’clock P. M., January 21st 1863. The second writ in order of time, an alias fi. fa., Hancock & Conrow v. Devereux (819, December Term 1862), was placed in the hands of the sheriff at forty minutes past one o’clock P. M., January 26th 1863. 'These writs were returnable on the first Monday of the following February. On the 14th of February 1863, at forty minutes past eleven o’clock A. M., a fi. fa., at the suit of Margaret Eastwick v. James Devereux, No. 84, March Term 1863, returnable to the first Monday of March following, was put in the hands of the sheriff. On the 20th day of February 1863, at eleven o’clock A. M., an alias fi. fa., at the suit of Elizabeth Savage v. James Devereux, No. 158, March Term 1863, returnable to the first Monday of March following, was placed in the sheriff’s hands. George H. Earle, Esq., who represented said plaintiff, instructed the said sheriff to levy on the said barque St. James. In obedience to this instruction the sheriff levied on the barque on that day, took possession of her, and placed a watchman on board. Prior to that time the sheriff not only had not seized said barque in execution, but did not know she was in his bailiwick, and had received no instruction of information touching her. The following writs, in the hands of the sheriff unreturned, were produced beford the auditor :— John P. Brua v. James Devereux, alias fi. fa., No. 268 of March Term 1863, real debt $2178.58, put in sheriff’s hands March 5th 1863, at 12.45 p. M. Edmund Carmody v. James Devereux, alias fi. fa., No. 267, March Term 1863, real debt $361.92, put in sheriff’s hands March 5th 1863, at 12.45 p. M. Thomas S. Darlang v. James Devereux, alias fi. fa., No. 303, March Term 1863, real debt $182.97 (cr. by-cash on ac. $150), put in sheriff’s hands March 10th 1863, at 12.35 p. M. Endorsed on said writ, “ December 26th 1863. Stayed by order of plaintiff.” Henry E. Simpson v. James Devereux, fi. fa., No. 327, March Term 1863, real debt $440.60, put in sheriff’s hands March 13th 1863, at 2.54 p. m. Wesley Rogers v. James Devereux, security, &c., alias fi. fa., No. 426, March Term 1863, real debt $547.39, put in sheriff’s hands March 21st 1863, at 2 p. m. The judgments of Eastwick and Savage were purchased by Edward M. Paxson, Esq., prior to the sheriff’s sale of the bark. The writing of transfer to Mr. Paxson was in blank, i. e. a blank was left for the name of the transferree. This blank was subsequently filled with Mr. Paxson’s name. Since the closing of the audit, to wit, February 26th 1864, these judgments were, by the filing of said writing of transfer “ marked to the use of Mr. Paxson.” After Mr. Paxson had purchased said judgments he told his client, Mr. Grant,.“if he desired to have them he might, because he did not want to occupy what could by any possibility be an antagonistic position to his.” Grant & Son were claimants of this barque in a feigned issue, in which judgment had been rendered against them. Upon the authority of Duncan’s Appeal, 1 Wright 502, the auditor decided that no levy was made upon the barque St. James by either the Hill writ or Hancock & Conrow writ. The barque was not in the possession, power, or view of the sheriff until after the return day of said writs, and therefore they never were liens on said barque, and have no .claim on the fund created by the sale of said barque. Objection was made to the Eastwick and Savage judgments by reason of the sale and assignment of them to Mr. Paxson. This objection was disregarded. The residue of the fund, after payment in full of the judgments of Eastwick and Savage, was awarded to the Brua and Carmody judgments, to be distributed between them pro rata; the writs of fi. fa. upon said judgments being next in order in point of time, and were placed in the sheriff’s hands at the same time. As has already been stated, these writs were not returned, but were still in the hands of the sheriff. At the request of J. Cooke Longstreth, Esq., counsel for Mr. Hill, the auditor annexed, as part of his report, the sheriff’s returns as endorsed on the above-mentioned writs :— “In obedience to the within writ, I levied, January 21st 1863, on the personal property of the defendant. The said personal property so levied on was afterwards claimed by Richard Devereux and Patrick Gillespie, and Samuel Grant & Son, and after-wards rules were taken, interpleaders and feigned issues ordered by the court, and bonds filed to March Term 1863, Nos. 3 and 11. The last of the said feigned issues, to wit, March 1863, No. 11, is still pending and undetermined, and the first was decided against the claimants, viz., Samuel Grant & Son. I further certify that I sold certain of said personal property so levied on, to wit, the bark St. James (which has been claimed by Samuel Grant & Son), on the 27th day of August, for the net sum of $1476, after deducting expenses, said sale being made before either of said feigned issues had been determined; on a certain other writ of fi. fa. issued out of this county, to wit, Savage v. Devereux, March 1863, No. 168, on which a levy had been made, February 20th 1863, subject to the levy on the within writ, and to a levy on a certain other writ of fi. fa., to wit,' Biddle Hancock et at. v. Devereux, December Term 1862, No. 819, issued out of this court. “ So answers “ John N. Hagkgy, Deputy Sheriff. “John Thompson, Sheriff.” Similar returns were made on the other writs, as to levies under writ of Mr. Hancock, on January 26th 1863, Mrs. East-wick on February 14th 1863, and Mrs. Savage on February 20th 1863, “subject to prior levies.” He also presented the following paper to be made part of the auditor’s report — “ J. Cooke Longstreth appears for the purpose of stating that the execution of Hill v. Devereux, D. C., fi.fa., December Term 1862, No. 697, and the judgment on which it was issued, in both of which he is attorney for the plaintiff, still remain unpaid and unsatisfied. He does this without admitting that there ever was any money raised under that execution, and without waiving any claims he may have on other parties by reason of anything that occurred on or after the day of the teste of the writ. He appears in order that the auditor may not suppose that the debt has been paid, compromised, or satisfied, and to that the fund be distributed according to law.” The auditor made the following distribution:— Fund in court ....... $1308.00 Expenses ...... $142.46 To Eastwick v. Devereux, prin’l., int. and costs 341.92 “ Savage v. “ “ “ “ 174.19 “ Carmody v. “ “ “ “ 191.17 u Brua v. u “ “ u 458.26 --$1308.00 To this report and distribution exceptions were filed for Mr. Hill, and for Messrs. Hancock and Conrow. On hearing, the court below made the following decree:— “ And now, April 16th 1864, exceptions sustained, and it is ordered and decreed that there be paid out of the fund in court to William H. Hill (alias fi. fa., December 1862, 697), the sum of $284.86, to Biddle Hancock et al. (alias fi. fa., December 1862, 819), $860.50, and to Margaret Eastwick (fi.fa., March 1863, 84), the balance of the fund in court.” Prom which decree Mr. Paxson appealed, averring here that the court below erred in awarding the fund or any portion thereof to the judgments of Hill v. Devereux, D. C., 697, December 1862, and Biddle et al. v. Devereux, 819, December Term 1862, it having been found as a fact by the auditor upon testimony received without objection, that the levy under each of the said writs was made after the return day thereof. Also in not awarding the said fund to the judgment of Savage v. Devereux, (No. 168 of March 1863, D. C.), or so much thereof as may be necessary to pay said judgment, and in not dismissing the exceptions to the auditor’s report.
49 Pa. 200Hill v. Grant (1865)
Error to the District Court of Philadelphia. This was an action by William H. Hill against Samuel Grant & Son, on their bond to the sheriff under the Interpleader Act, and arose out of the preceding case, reported as Paxson’s Appeal. The execution of William H. Hill was one of a series of executions issued against James Devereux, under which levies were made upon the barque St. James. They were issued in the following order: Hill v. Devereux, D. C., December 1862, No. 697; Biddle v. Devereux, D. C., December 1862, No. 819; Eastwick v. Devereux, D. C., March 1863, No. 84; Savage v. Devereux, D. C., March 1863, No. 168; Carmody v. Devereux, D. C., March 1863, No. 267; Brua v. Devereux, D. C., March 1863, No. 268; Darling v. Devereux, D. C., March 1863, No. 393; Simpson v. Devereux, D. C., March 1863, No. 327 ; and Rogers v. Devereux, D. C., March 1863, No. 426. Grant k Son claimed the barque under a bill of sale, and gave bond to the different execution-creditors. The bill of sale not having been recorded, in compliance with the Act of Congress, the court below directed verdicts for the defendants in the feigned issues. The cases of Eastwick v. Devereux and Savage v. Devereux were first decided. The sheriff was ordered by the court to proceed with the executions in those cases, and the claimants surrendered the bark to the sheriff, in compliance with the condition of their bonds. The sheriff sold the barque (the counsel for Mr. Hill being present at the sale, and one of the bidders), the proceeds were paid into court, and an auditor appointed to make distribution thereof. The counsel of Mr. Hill appeared before the auditor, claiming to be paid the amount of his judgment out of the fund. The facts as found by the auditor will be found in Paxson’s Appeal. The plaintiff in error, not having succeeded in getting his money of the fund in that proceeding, brought this suit upon the bond. Under the plea of payment with leave, and notice of the special matter, the defendants gave in evidence the fact of the sale of the barque by the sheriff, under the Savage and Devereux judgments, upon actual notice to all of the other execution-creditors. The principal error assigned was to the admission in evidence on the trial, of the sheriff’s return to the plaintiff’s execution showing a levy and sale of the property, out of which the inter-pleader arose.
49 Pa. 203Richardson v. Montgomery (1865)
Error to the District Court of Philadelphia. This was a feigned issue under the Sheriff’s Interpleader Act. At the time of the trial Thomas Richardson & Co., W. W. & G. Thompson, and Peel, Stevens & Co. were plaintiffs, and Archibald Montgomery, defendant. The two latter plaintiffs were added by way of amendment, on motion at the trial. The declaration averred that Thomas Richardson & Co. asserted that the right of property in the ship Fanny McHenry, which had been levied on under a writ issued by Archibald Montgomery against George McHenry, was on the day of the said levy (November 22d 1862) in them, and that they held the same as collateral for indebtedness, owing by the said George McHenry to the plaintiffs, and on this, issue was joined. By an amendment at the trial, the additional plaintiffs were inserted, and the record amended by averring that Thomas Richardson & Co. held sixty-two sixty-fourths, instead of the whole, in the manner set forth in the narr.; and that Peel, Stevens & Co. owned one sixty-fourth, and W. W. & G. Thompson owned one sixty-fourth. The material facts of the case were as follows:— The ship Fanny McHenry, purchased by Mr. McHenry in 1854, was transferred in that year by bill of sale, duly recorded, to Aubrey H. Smith, who held the title in trust for various persons interested in the ship. In the same year, after the legal title was thus placed in Smith, McHenry sold and assigned for value paid an equitable interest in one sixty-fourth to Peel, Stevens & Co., one sixty-fourth to W. W. & G. Thompson, and two sixty-fourths to John S. Williams & Co. Mr. Smith thus held the legal title in trust for these parties, and the residue in trust for George McHenry, but there was no written or recordable evidence of the trust. In 1860 George McHenry assigned his equitable interest, being sixty sixty-fourths, to Edward G. James, in trust for Thomas Richardson & Co., to secure an indebtedness to them. In 1862, and before the levy, J. S. Williams assigned his interest to Mr. Spence, who assigned it to Mr. James, who was the managing clerk of Thomas Richardson & Co., and who thus held the equitable title to sixty-two sixty-fourths of the ship, as the agent and trustee of Richardson & Co. In 1862, before the levy, Aubrey H. Smith, the trustee holding the legal title to the whole ship, transferred to E. G. James sixty-two sixty-fourths of the ship by a bill of sale, which was duly recorded at the custom-house at Philadelphia. At the same time Edward G. James, on behalf of Thomas Richardson & Co., took actual possession of the ship as ship’s husband. At the time of the levy, under the writ against McHenry, Richardson & Co. were in actual possession of the ship. Their clerk held the legal title as to sixty-two sixty-fourths in trust for them, and Aubrey H. Smith held the legal title of two sixty-fourths in trust, one sixty-fourth for Peel, Stevens & Co. and one sixty-fourth for W. W. & G. Thompson. On the trial it was proposed to prove the titles thus vested in Richardson & Co., Peel, Stevens and Co., and W. W. & G. Thompson; but because there was no recorded instrument or evidence of title in them the evidence was rejected, and a verdict directed for the defendants; which was the error assigned by plaintiffs.
49 Pa. 210Moyer v. Moyer (1865)
 Admissibility of evidence of plaintiff’s general character in action for defamation. In an action on the case to recover damages for saying that plaintiff had committed perjury, evidence of the plaintiff's general character for truth and veracity is admissible on the part of the defendant in mitigation of damages.
49 Pa. 213Horwitz v. Norris (1865)
 Power of appointment under will discussed. A power given by will of appointment to the children of a decedent does not authorize either a general or partial appointment to his grandchildren.
49 Pa. 223Becker v. Kehr (1865)
Appeal from the Orphans’ Court of Berlcs county. This was an appeal by Jacob Kline, Jacob Becker, and William Leinbach, from the decree of the Orphans’ Court in the matter of the citation against Samuel Bell, Jr., executor and devisee of Samuel Bell, deceased, and sundry other persons as telre-tenants. The proceeding was commenced by petition of Frederick Kehr and Samuel Kehr, in and by which they sought to charge seven different tracts of real estate, the title to which was derived by the respondent from his uncle, Samuel Bell, deceased, with the payment of certain annuities given to them in the will of said deceased. In the course of the investigation the petitioners were restricted to but two of th.e said tracts, viz., those which came to the respondant as residuary devisee of deceased. The material facts of the case, as found by the auditor (Edward P. Pearson, Esq.), were as follows:— Samuel Bell, the elder, was in his lifetime the owner of the following described real estate in Berks county, viz.: 1. A tract of land situate in Berne township, on which are erected a grist-mill, saw-mill, and two houses, containing ten acres more or less; known as the “Bell’s Mill property.” 2. The undivided half of a tract of land, situate in Cumru township, containing seventy-seven acres more or less; known as the “ Stewart Place.” 3. A .brick house and lot in East Penn street, Reading, being the eastern moiety of lot No. 14. 4. A lot at the north-west corner of Fifth and Spruce streets, Reading, containing sixty feet in front and two hundred and thirty feet in depth. 5. A messuage, tenement, and tract of land, situate partly in Spring and partly in Cumru township, adjoining the Union Canal and lying on both sides of the Harrisburg turnpike, containing one hundred and sixteen acres, more or less; known as the “Leinbach property.” 6. A tract of land situate in Spring township, bounded by the public road and lands of William Spohn, containing nineteen acres and one hundred and thirty-seven perches; known as the “ Scrub Oak Tract.” 7. The Maidencreek mill property. The terre-tenant of this property was not made a party to these proceedings, but it was' alleged that he held under conveyances similar to those given in evidence. On the 28th of March 1839, Samuel Bell, the elder, made his last will and testament, and died on the 20th July 1841. The will was duly proved on 3d August 1841, and letters testamentary granted to his nephew, Samuel Bell, the younger, the executor named therein, and one of the respondents in these proceedings. The will, inter alia, contained the following bequests :— “To Frederick Kehr, Sr., $70 per annum during his life, to commence at and immediately after the testator’s death. He also devised to F. Kehr, Sr., during his life, a house and lot in Cumru township, Avhieh Kehr then occupied, he to pay the taxes and keep the same in repair. “ To John Kehr, son of said Frederick, $100 per annum during his life, to commence six months after the testator’s death. “To Frederick Kehr, Jr., son of the said Frederick, $100 per annum during his life, to commence six months after the testator’s death. “ To Samuel Kehr, son of said Frederick Kehr, Sr., $100 per annum during his life, to commence six months after the testator’s death. “ To the testator’s nieces, Nancy Burns, Peggy Burns, and Betsy Burns, $33.33J per annum, during their respective lives, to commence at and immediately after the testator’s death. “ To Nancy Keating, $200 per annum, during her life, to commence six months after the testator’s death; also the sum of $250 to be paid within one year after the testator’s death. He also devised to her the house in Cumru township, in which he, the testator, resided, with all and singular the furniture therein, dui’ing her life, she to pay the taxes and keep the same in repair. “ To Rebecca Epler (late' R. Kehr), Mary Kehr, and Ellen Kehr, each $30 per annum, during their respective lives, to continence six months after the testator’s death. “ To Betsy Piller (late B. Herron), and to Samuel Herron (children of the testator’s deceased sister, Nancy), each $250, to be paid in equal payments, in one or two years after the testator’s death. “ To Samuel Stewart $100, to be paid in one or two years after the testator’s death.” The will then continued:— “ I give and devise to Samuel Bell, Jr., of the borough of Reading (son of my deceased brother William Bell), all the rest and residue of my estate, real, personal, and mixed, whether the same be in possession, reversion, or remainder, to have and to hold the same, with appurtenances,-to him, the said Samuel Bell, Jr., his heirs and assigns for ever. “ And whereas, mutual accounts have heretofore subsisted between me and the said Frederick Kehr, Sr., John Kehr, Frederick Kehr, Jr., Samuel Kehr, Rebecca Epler (late Kehr), Mary Kehr, Ellen Kehr, and Nancy Keating, and the devises and bequests heretofore given to them respectively, are designed and intended to be in lieu of any balance, claim, or demand, due, or supposed to be due from me to. them or any of them. Now, therefore, it is my will and I hereby order and direct, that if the said Frederick Kehr, Sr., John Kehiq Frederick Kehr, Jr., Samuel Kehr, Rebecca Epler (late Kehr), Mary Kehr, Ellen Kehr, Nancy Keating, or any of them, shall, after my decease, make, set up, or pretend any claim or demand against my estate for services rendered me in my lifetime, or on any other account whatsoever, accruing in my lifetime, then and in such case the devise or bequest hereby given to him, her, or those of them respectively, so claiming or demanding, shall cease and determine and become void, and shall fall into the residue of my estate, and go to the said Samuel Bell, Jr., my residuary devisee herein above named; and if any devisee or legatee in this will named, shall endeavour or attempt to set the same aside, then and in such case his or her devise or bequest shall cease and be void, and shall fall into the residue of my estate and be enjoyed by my residuary devisee aforesaid.” The executor, Samuel Bell, Jr., filed an administration account on the 26th of June 1845, which was duly confirmed. He since became insolvent, and on the 19th of January 1861, made an assignment to David McKnight for the benefit of his creditors. One of the questions before the auditor was: — Do the words of this will give to the legatees and annuitants a lien on the real estate left by the testator, as a security for their claims ? Under the decision in Nichols v. Postlewaite, 2 Dallas 131, the auditor held that a lien was created by the wording of Mr. Bell’s will in favour of the legatees and annuitants. The' next question was as to what properties were bound by the lien. Deeds were produced showing that Samuel Bell, the elder,: in his lifetime, had executed and acknowledged conveyances for the greatest part of his real estate, to Samuel Bell, the younger, viz., for Nos. 1, 2, 3, 4, and 6 above mentioned. But it was contended on behalf of the petitioners that these conveyances, although executed and acknowledged, were not delivered to Samuel Bell, the younger, during the lifetime of the grantor, and therefore was not operative, and that Mr. Bell, the younger, only became the owner'under the residuary devise in his uncle’s will. The weight of the testimony, however, was that the convey-, anees referred to were not only executed and acknowledged by Samuel Bell, the elder, but were also delivered in his lifetime to. the grantee Samuel Bell, the younger, and that he then became' the owner under them, and not under the will. All the properties referred to (except the house and lot in. Penn street, Reading), had passed into hands of bond fide pur-, chasers for value, from Samuel Bell, the younger, and the house, and lot in Penn street, Reading, were mortgaged by Samuel Bell, the younger, and on 19th January 1861, conveyed by said Samuel Bell, the younger, subject to the mortgages and to any judgments obtained against him, to David McKnight, for the benefit of creditors. The inquiry then was restricted to the properties for which no conveyance was executed by Samuel Bell, the elder, in his-lifetime, to Samuel Bell, the younger, viz.: “ The Scrub Oak. Tract,” situate in Spring township, and containing nineteen, acres and one hundred and thirty-seven perches; and the undivided half of the “ Stewart Place,” situate in Cumru township, and containing seventy-seven acres. It was contended on behalf of Mr. Lienbach, the present owner of the “ Scrub Oak Tract,” and for Jacob Becker, the present owner of the “ Stewart Place,” that Samuel Bell, the-elder, was indebted to an extent beyond the value of all the property, real, personal, and mixed, that passed into hands of Samuel Bell, the younger, either by transfer, during the life, of Samuel Bell, the elder, or by the will after his death, and, that the debts were assumed and paid by Samuel Bell, the,younger, and that this ought, in equity, to prevent any lien for legacies. These properties had also passed into the hands of bond fide-. purchasers for value, from Samuel Bell, the younger, viz., the. “ Scrub Oak Farm” to William Leinbach, and the “ Stewart Place” to Jacob Becker and Jacob Kline as above stated. The testimony showed a very large indebtedness of Samuel Bell, the elder, which was assumed and paid by Samuel Bell, the younger, and Samuel Bell, the younger, testified that the debts' he assumed and paid for his uncle, exceeded the value of all the' real estate he got from him during his life, and all that he got’ under the will after his death. It was further contended on behalf of Mr. Becker, the; present owner of the “ Stewart Place,” that the undivided half" of this property was sold by Samuel Bell, the younger, who was executor of his uncle, for the payment of the testator’s debts, and the administration account of Mr. Bell was referred to as establishing this position. In it the executor charged himself with' §1000 in the following words: “1844, April 1. To the pro-' ceeds of the share in the Stewart farm, §1000.” In reply, it was contended that Samuel Bell, the younger, accepted the devise of the real estate (not previously conveyed by deed) cum onere, and that the lien of the legacies could not' be impaired by any of the facts that had been shown. . The administration account did not show that the sale of the. undivided half of the Stewart place was for the payment of ■ debts, although the executor charged himself with §1000 as the-proceeds of this sale, and. the account showed a balaxice of' §4,006.54 in the executor’s hands, beyond any debts which he' claimed in the account to have been paid as executor. Beside this, the deed of May 10th 1843, from Samuel Bell to Wm. Leinbach, for the “Stewai-t Place,” did not purport to have been executed by him as executor, but as owner in his own right; and the deed itself recited that the premises came to the grantor by conveyances, devises, and descent. The wife of Mr. Bell also joined in the conveyances. In regard to this farm, the auditor reported that the vagueness and uncertainty which existed in the whole business, did not’ justify him in deciding that the sale of the “Stewart Place,”' and bringing into the administration account of §1000, as the proceeds of the sale of the undivided half that belonged to-Samuel Bell, the. elder, in his lifetime, and the accompanying circumstances of the' indebtedness of the testator, and the. assumption and payment of the debts by the executor, were sufficient to deprive the legatees and annuitants of the security’ afforded by their legacies and annuities, being a lien on such real estate as was owned by the testator at- and immediately’ before the time of his death, and which passed to Samuel Belly the younger, under the residuary clause in the will. As to the “ Scrub Oak Tract,” a piece of land containing nineteen acres and one hundred and thirty-seven perches, situate in Spring township, and at present owned by William Leinbach, ■ under the deed from Samuel Bell and wife, dated December 18th 1860, it was claimed by counsel for Mr. Leinbach, that Samuel Bell, the elder, gave or sold it in his lifetime to his nephew Samuel Bell, the younger, by a parol gift, or sale, accompanied with possession'taken by the nephew ; and for this the testimony of Samuel Bell, the younger, was relied upon. The auditor reported that the testimony did not establish a gift or sale; and that it was not so understood by the parties when it was conveyed to Mr. Leinbach. There was one fact which distinguished the “ Scrub Oak Tract” from the “Stewart Place.” William Leinbach, now the owner in fee under the deed of 18th December 1860, leased it on the shares for the period of his own life, from Samuel Bell, the elder, on 26th November 1836, and it was claimed that this lease protected him from any lien created by the will. The auditor decided that he was entitled to this protection (notwithstanding his subsequent purchase of the reversion) so far as to give full effect to the lease; by the terms of which Mr. Leinbach was bound to deliver to the landlord, at the mill in Bern township, the one equal half of all the winter and summer grain in the bushel raised on the premises; also pay one-third of the' taxes. By will, Samuel Bell, the younger, succeeded to the rights of his uncle, the testator, and became entitled to receive one-half the grain raised, and to have one-third of the taxes paid by the tenant. That these rights must yield to the paramount rights of the legatee and annuitants, by virtue of their liens; and Mr. Leinbach, by purchasing the reversion, as he did, on the 18th December 1860, could not relieve himself from the effect of the lien, and must account for the rents’in the same manner as if he had not purchased the reversion. That the l.ease being for the term of Mr. Lienbach’s life; after his death, the premises, that is the “ Scrub Oak Tract,” of nineteen acres one hundred and thirty-seven perches, would be subject to the lien of the legacies and annuities, in the same manner as if no lease had ever been executed. That as the Stewart place was sold by Samuel Bell, the younger, on 10th May 1843, and the Scrub Oak Tract, on December 18th 1860, the former having been the last sold, must first be resorted to under the lien, according to the decision in Cowden’s estate, 1 Barr 267, 274; and that for any deficiency, the parties entitled can proceed against the undivided half of the Stewart place. He therefore reported the sum of $1026 due to Frederick Kehr, on January 1st 1863. And the sum of $2036 due to Samuel Kehr, on April 1863, and that the said sums were to be raised, 1st: From the “Scrub Oak Tract,” containing nineteen acres one hundred and thirty-seven perches, situate in Spring township, Berks county, now owned by William Leinbach; but reserving all the rights of said Wiliam Leinbach, under the lease of November 26th 1836 ; And any deficiency: From the undivided half of the “ Stewart Place,” situate in Cumru township, Berks county, containing in the whole seventy-seven acres, now owned by “Jacob Becker. The same to be enforced by such process and collected in such manner as the court might decree. To this report exceptions were filed for Jacob Kline, Jacob Becker, and William Leinbach, which were overruled by the court in the following opinion : — “ The doctrine seems imbedded in our law, that where the real and personal estate of a testator is blended in a residuary devise, the devisee takes the land subject to the lien of pecuniary legacies. This is the leading question in the case. The remaining questions are matters of detail, resting upon evidence, and the auditor has disposed of them in a manner as satisfactory and as available for review in the Supreme Court, as any we could possibly adopt.” The report of the auditor wras therefore confirmed, and the following .decree made :— “ February 8th 1864. And now to wit: Report of auditor confirmed, and the court further order, adjudge, and decree that William Leinbach, a defendant, and the terre-tenant and owner of the Scrub Oak Tract, containing nineteen acres, one hundred and thirty-seven perches, pay to Frederick Kehr the sum of $1026, with costs, and to Samuel Kehr the sum of $2026, with costs; and in case the said several sums of money, with costs, shall not be paid within one month from the entry of this decree, that then the payment thereof shall be enforced by a writ of levari facias against the said Scrub Oak Tract in the plaintiff’s bill or petition described; the sale to be subject to the life lease of the said William Leinbach, made November 26th 1836, and duly recorded in Reading, in the Recorder’s Office, Miscellaneous Book E, vol. 5, page 258; the purchaser to be entitled to the rents, issues, and profits in said lease prescribed which may have accrued since December 18th 1860. “ And the court do further order, adjudge, and decree, that in case the proceeds of the sale of said Scrub Oak Tract be insufficient to pay the said several sums of money above decreed to Frederich Kehr and Samuel Kehr in full, with costs, that then Jacob Becker, a defendant and the terre-tenant and owner of the Stewart Tract, containing seventy-seven acres, more or less, do pay unto the said Samuel Kehr and Frederick Kehr the several amounts remaining unpaid from the proceeds of the sale of the said first-mentioned Scrub Oak Tract, and in case the same shall not be paid within one month after such deficiency is ascertained, that then the payment thereof be enforced by a writ of levari facias■ against the undivided moiety of said Stewart Tract, described in the plaintiff’s petition.” Which were the errors assigned.
49 Pa. 231Hoffman v. Toner (1865)
Rights of married women under the Married Women’s Act of 1848. 1. Where a married woman acquires property by purchase she must clearly show that the purchase-money was her own, in some way within the recognition and protection of the Act of 1848: for the law presumes it to have belonged to the husband. 2. Thus, where a testator, having directed his executors to sell his stock of goods and real estate, and after payment of his debts and specific legacies, to divide the residue between his brother and sister, a married woman, who took the goods at the appraisement from the administrator, agreeing therefor to pay the testator's debts, in amount greater than the value of the goods, and kept store, the husband living in the house and assisting in the business ; in a feigned issue under the Sheriff's Interpleader Act, to determine the ownership of the goods levied on as the property of the husband, it was held, that as the goods were purchased on credit, and the stock kept up by the wife with the assent of the husband, this did not in effect constitute her a separate owner, and make the property hers under the provisions of the Married Women's Act.
49 Pa. 234Campbell v. Hand (1865)
Error to the Common Pleas of Luzerne county. This was an action of trespass on the case, by Elisha J. Hand, Chauncey Hand, Leonard White, doing business as Hand, White & Co., and J. White, against Charles B. Campbell. The material facts of the case were as follows :— - On the 5th of February 1844, Alexander Jeffreys was the owner of a tract of land and a grist-mill seat on the west side of the Lackawanna river. The mill was built in 1832, and the dam, known in this case as the old dam, was finished in 1833 or 1834, and furnished the water to drive the mill. Matters so remained until the date first mentioned, when articles of agreement were • concluded between Mr. Jeffreys and one Jerrison White, by which the latter (who had become the owner of land on the opposite side of the river) was to have the privilege of ■'constructing a new dam and joining it to the mill-race of Jeffreys. A synopsis of the provisions of this contract may be thus stated: — ■ ■ 1. The dam was to he built by White at his own expense; Jeffreys, however, permitting him to use certain stone and material from his premises. 2. When the dam was completed, Jeffreys was to have the first right to the water from the mill-pond, sufficient to drive two wheels of a certain size. When these were supplied, White was to have enough water'to drive his machinery, and'then the surplus to be used in common. 3. A release by Jeffreys of a certain right of way over White’s land, and acceptance in lieu thereof of a lane or pathway from the highway to other land of Jeffreys. 4. Each party was to build his own bulkhead, and to be at equal expense in keeping the dam in repair. Prior to this contract, viz., on the 11th of July 1842, a judgment had been entered by John Vaughn against Alexander Jeffreys, in the Common Pleas of Luzerne county (No. 882, August Term'1842), for $1740. Jeffreys was then the owner of the mill property. On the 15th of October 1845, A. A. Winton & Co. recovered a judgment against Alexander Jeffreys (279, November Term 1845) for $193.51. Upon both these judgments executions were issued to August Term, 1846, and both were levied inter alia on the mill property of Jeffreys, but without mention of the agreement between Jeffreys and White. Writs of venditioni exponas issued to November Term, 1846, upon both judgments, and the property was sold by the sheriff to H. W. Nicholson; who assigned the deeds to Peter Campbell, the father of Charles B. Campbell. Peter Campbell afterwards died, leaving the present defendant his heir at law. It was admitted that the defendant had the title of Jeffrr and the plaintiffs that of White, to the lots on the opposite s* of the Lackawanna river. - In February 1861, a heavy freshet carried off a portion of the dam; one' witness says half’of it, another says about thirty feet, On the Campbell side. On the 22d of May 1861, Hand, White & Co. (whose improvements included an axle factory, planing-mill, and saw-mill) notified Charles B. Campbell of the destruction of the dam, and called upon him to meet them with a view of arranging to rebuild. To this Campbell replied, declining to assist in the rebuilding, and denying his liability to contribute. Hand, White & Co. then proceeded to rebuild the dam, and afterwards brought this suit to recover one-half the cost. The Lackawanna river is a public highway, and at the point where the dam crosses it is about one hundred and fifty feet wide. The court below (Pearson, P. J., presiding) instructed the jury: “ 1. That the agreement of 5th February 1844 ‘ made the parties joint owners or tenants in common of the dam.’ “ 2. That the claim by Campbell to the use of the water on the same terms as provided by the contract, amounted, in law, to an engagement on his part to bear one-half the expense of keeping the dam in repair. “ 3. That, independent of the contract, Campbell could be called upon to contribute to repairs of the dam, if he had claimed the benefits arising from it. “4. That, under the Mill-Dam Act, no one has a right to erect a dam across the stream unless he own the land on each side, or have the consent of the opposite owner; and “ 5. That the rebuilding of the dam in 1846 by Hand, White & Co., on the occasion of the'former flood, at their own expense, was no evidence of their construction of the rights and liabilities of the parties.” Which were the errors assigned by defendant after a verdict and judgment in favour of plaintiffs.
49 Pa. 241Fitzpatrick's Appeal (1865)
Devise for maintenance and education of children during minority by widow.— When trust determined by her death. A testator bequeathed one-third of his personal estate to his wife absolutely, and the residue of real and personal, to a trustee in trust for the payment of debts, &e., and then to receive and pay over one-third of the net income of the real estate to his wife, during her natural life, for her sole and separate use, and the residue of the net income of real and personal, to pay over to her for the support, maintenance, and education of his children until the youngest should arrive at the age of twenty-one years, when the personal estate should be divided among them ; and afterwards provided that after her decease the trusts and limitations created by the will should cease and determine. Held, that the testamentary trust expired at the death of the widow, though it. occurred during the minority of the children, and that the balance in the hands of the trustee must be paid to their guardian.
49 Pa. 245Stewart v. Bowen (1865)
This was an action of account render by Erwin Bowen and B. S. Bowen against W. L. Stewart, in which, after judgment quod computet, the case was referred to an auditor. The facts, so far as they are necessary to a proper understanding of the case, will be found in the opinion of this court.
49 Pa. 246Drexel v. Miller (1865)
This was a scire facias sur mortgage by Catherine Drexel,. Francis A. Drexel, and John D. Lankenau, executors of Francis M. Drexel, against Abner B. Miller. The case was this: — Abner B. Miller purchased the property described in the mortgage from Mr. Drexel, and gave a purchase-money mortgage for the price, no part of which was paid. He subsequently sold the property to James Griffith.
49 Pa. 249Ingersoll v. Ingersoll (1865)
This was a proceeding in the court below on the petition of Jane C. Ingersoll, by her next friend Lewis A. Trnefitt, against Jared Ingersoll, for a divorce on the ground of desertion. The libel set forth the marriage of the parties on the 5th of August 1858, and the good conduct of libellant.
49 Pa. 251Citizens' Passenger Railway Co. v. City of Philadelphia (1865)
 Railway stoclc liable for city taxes. The dividends of passenger railway companies are distributable to paid stock, and are liable for city taxes ; and the annual official reports made to the auditor-general of the state by the company, are the best evidence of the amount of such stock.
49 Pa. 256McClintock v. Cowen (1865)
This was an action of ejectment by Andrew McClintock, Charles McClintock, John McClintock, and William McClintock, against James Cowen and Harriett his wife, in right of said Harriett, Thomas H. Craige, John Holmes, M. D., and Mary A. Margaretta his wife, in right of said Mary A. Margaretta, Seth C. Holmes, William S. Whiteley, and Elizabeth Emeline -his wife, in right of said Elizabeth Emeline, Elizabeth Holmes intermarried with William Holmes, Anne Holmes, Helen P. Holmes,…
49 Pa. 259Allen v. Hubert (1865)
 Suretyship and guaranty distinguished. Where one by writing at the foot of a lease agreed under seal as follows, “ For consideration received I hereby agree to become security for the faithful performance of the above agreement.” Held, that the contract was not a guaranty, but an engagement of suretyship.
49 Pa. 261Ashton v. Lehigh Coal & Navigation Co. (1865)
 Rights of holders of bonds of The Lehigh Coal and Navigation Company. The rights of the holders of the bonds of The Lehigh Coal and Navigation Company secured by the mortgage of March 7th 1842, are not impaired by the mortgage and bonds authorized by the Act of March 4th 1863, or the resolutions of the stockholders of May 12th 1863, relative to the appropriation of the proceeds of said mortgage, and the stockholders and loanholders are not therefore entitled to an injunction restraining the company from executing and delivering said mortgage and bonds.
49 Pa. 270Brown v. Lehigh Coal & Navigation Co. (1865)
Certificate from the Court at Nisi JPrius. This was a proceeding in equity founded on a bill filed January 7th 1864, by John A. Brown, and sixteen others, holders of scrip of The Lehigh Coal and Navigation Company, against said corporation, to compel a distribution to said scrip-holders of dividends out of the accumulated profits of the company equal to the dividends paid annually to the stockholders from 1855 to 1864. The case was in substance this: The Lehigh Navigation having in January 1841 suffered by a disastrous flood, it became necessary that it should execute a mortgage, to enable it to obtain the moneys required for the restoration of the works. For that purpose the Act of 16th February 1842 was procured, which contained this proviso, “ Tha-t all profits shall be applied to interest of loans, and to principal of loans and other debts due and unpaid,” and on 7th March following, the mortgage was executed, conformably to the act, for $5,550,000 : and also with the further restriction, that after sufficient reservations, to meet a-11 debts due, the managers might make dividends not exceeding six per cent, per annum on the capital stock, and that any surplus of profits thereafter should go to a sinking fund, to he invested in loans of the company not then due, “ or in good securities bearing interest, and for the benefit of the said loa-nholders, so far as their security might require, and afterwards for the benefit of the stockholders of said company.” At the annual meeting on 1st May 1855, it was found that for the nine years, viz., from 1846 to 1854, both inclusive, there had accumulated a profit of $1,689,954.66, with a prospect of further accumulations, which were afterwards realized. The stockholders, desirous of realizing said profits without impairing the security provided by the mortgage for the mortgage creditors, devised the plan of issuing scrip certificates to represent a portion of said accumulated profits, as embodied in a resolution passed 1st May 1855. Luring 1855, 1856 and 1857, scrip shares was issued to the amount of $1,803,000, at the par value of $50 for a share, and were received pro rata by all the stockholders. From 1846 to 1856, inclusive, the accumulated profits were $2,548,963.30. The scrip stock received dividends of subsequently-issued scrip pro rata with the stock, but no cash dividend until May 1864, after its recognition as stock entitled to cash dividends on 27th April 1864. The earnings of the company from 1855 to 1863, inclusive, were more than sufficient to pay three per cent, half yearly, upon all the scrip issued, to wit., $2,131,885.52, or $1,333,639.52 beyond six per cent, per annum, for said period on said scrip. The mortgage of 1842 was paid off, except a small balance, for which adequate provision was made before the filing of the bill. The bill prayed that the scripholders shall receive dividends equal to six per cent, per annum for said period, before the stockholders shall receive dividends above six per cent, per annum, and that said company be restrained from paying larger dividends to the stockholders until the said deficiency be made up to the scripholders. The answer of the defendants contained a narrative of facts not materially variant from those stated in the bill, and was subsequently modified by the following agreement:— “ It is agreed that the clause in the answer on the 4th printed page, to wit: ‘ This provision was clearly understood between the parties, at the time of the issue aforesaid, to relate to dividends after the conversion of the scrip into shares, and such was also the understanding of the communityshall not be held to mean or aver that there was any expressed understanding or agreement on that subject as stated in that clause, but that such clause expresses the defendant’s legal inference of the import of the resolutions and doings of the company defendant, and of the other facts, as set forth in the bill and answer. “ It was also agreed that the replication be withdrawn, and the cause be set down for hearing on bill and answer. The scrip held by the complainants was in the following form, with the blanks properly filled up, and issued under the corporate seal of the company, with the signature of the president and secretary:— On the back of the scrip were the following: N. B. No transfer valid unless signed and witnessed at the Company’s Office. Oeeice oe the Lehigh Coal and Navigation Company, Philadelphia, 18 Bor value received, hereby assign and transfer the the within mentioned Scrip, to Shares. The case was set down at Nisi Prius, and without argument a decree was entered pro forma dismissing the bill, whereupon this appeal was taken to the court in banc.
49 Pa. 277Catawissa Railroad v. Titus (1865)
This was an action of debt by Benjamin W. Titus and Uriel T. Scudder, trading as Titus & Scudder, and The Trenton Locomotive and Machine Manufacturing Company, against the Catawissa Railroad Company. The case was this: — r In the fall of the year 1859, the Catawissa, Williamsport and Erie Railroad Company were insolvent, and their property was in the hands of a receiver.
49 Pa. 282Horstman v. Gerker (1865)
Error to the District Court of Philadelphia. This was a seire facias on a mortgage, brought by Frederick Horstman, assignee of John P. Persch, who was assignee of A. C. Miller, against Henry Gerker. The mortgage was made by Henry Gerker, in favour of August C. Miller, on the 15th of June 1861, to secure the payment of the sum of $6000, in five years from date, and afterwards, at the request of Mr. Gerker, assigned by Miller to John P. Persch, as collateral security for the payment of certain -promissory notes made by H. Gerker, Son & Co., then held by said Persch. Henry Gerker had been many years in the business of manufacturing glue, curled hair, &c., and having accumulated a large property, and become advanced in years, formed a copartnership under the name of H. Gerker, Son & Co., in which he was the capitalist and pidncipal partner. The business resulted in profit until the financial difficulties of 1857, followed by those of 1860 and 1861, found them with large stocks of manufactured and unmanufactured goods on hand, purchased at high prices, without a market for their sale, except at ruinous prices, a large amount of real estate, expensive machinery, heavy expenses, no trade and but little money, debts to be carried forward loaded with accumulated and growing interest, the result of which was that in May 1861 their paper went to protest. H. Gerker, Son & Co. had borrowed .from August C. Miller large sums of money, and to secure him in part, Mr. Gerker gave to Mr. Miller several mortgages on his own separate real estate, in which the firm of H. Gerker, Son & Co. had no interest. After the failure of H. Gerker, Son & Co., it appeared that John P. Persch held a considerable amount of the promissory notes of H. Gerker, Son & Co., which he had bought or discounted, and he set' about to obtain such security as he could get. He induced Mr. Gerker to ascertain if Mr. Miller would not transfer some of his securities to him, provided he would give time. Mr. Miller consented, and Mr. Persch was allowed to select from mortgages made by Mr. Gerker to Mr. Miller, and the mortgages so selected (of which the mortgage sued on in this case was one) were transferred by Miller to Persch, on the 4th of September 1861, under a verbal agreement between Miller, Gerker, and Persch, that he, Persch, would hold said mortgages as collateral security for the payment of the promissory notes of H. Gerker, Son & Co., which he then held, and that on payment of the notes or part thereof, such amounts of the mortgages corresponding with the amounts paid would be transferred back by him, Mr. Persch, to Mr. Gerker. This agreement, made on the 4th of September 1861, was put in writing on the 25th of October 1861. On the 10th of March 1862, the notes held by Persch were paid by a sale to him and Miller of the firm’s business, fixtures, &c., of the firm, and were given up to Mr. Gerker, and the bonds and mortgages held by Persch as collaterals demanded. Mr. Persch said: “ I have them all but one, that is in New York; I am going to New York, and on my return I will transfer them back and give them up to Mr. Gerker.” It appeared by the evidence that on the 7th of September 1861, three days after he obtained the collaterals, he assigned one of them, to wit, that now sued upon, to Mr. Horstman, the plaintiff in this case, who took it without-asking Mr. Gerker any questions, or giving him any notice, or in any way making Mr. Gerker a party to the assignment, nor did Mr. Gerker know of the assignment of the mortgage by Mr. Persch to Mr. Horstman, until a long time after it took place, and about two years after the notes were paid. The first notice Mr. Gerker had of the assignment of the mortgage by Mr. Persch to Mr. Horstman, was when this suit was brought. Mr. Horstman never, called on Mr. Gerker for any interest on the mortgage, nor did he put his assignment on record until two years and two months after it was made, viz., until the 7th of November 1863. There was no proof of the consideration between Mr. Persch and Mr. Horstman, but it was shown on the trial that Persch was largely indebted to Horstman. The notes which had been paid and given up by Mr. Persch to Mr. Gerker, were produced at the trial in court by the defendant. After the testimony had closed on both sides, showing in substance the above case, the learned judge directed the jury to find for the defendant if they believed the evidence; which was the error assigned.
49 Pa. 289Clark v. Martin (1862)
Certificate from Nisi Prius. This was an appeal by John C. Clark, from the decree of the Supreme Court at Nisi Prius, dismissing a bill filed against John L. Martin, with costs. The defendant, at the time the bill was filed, was the owner of a .“three-story brick messuage, with the one-story back building or dining-room thereto attached,” and lot at the southwest corner of Eighth and Locust streets, in the city of Philadelphia, twenty-two feet six inches front on Eighth street, and one hundred feet deep on Locust street, to a ten feet wide alley. The complainant had been since 1851 the owner of the dwelling-house and lot immediately adjoining to the south, and of the same front and depth. Both lots originally formed parts of a larger lot, which, prior to 1814, was held by Alexander Henry as tenant for the life of Ann Snowden, with remainder to his wife for life, and after her death to all her children born or to be born, in equal shares as tenants in common in fee. July 7th 1814, Henry and wife conveyed the corner lot (defendant’s) to Charles Drosddorf and Lewis Roberts, as tenants in common in fee (reserving thereout to said Henry in fee a yearly ground-rent of $225) “ upon this express condition, nevertheless, that the said Q. P. and L. i?., their heirs or assigns, shall not build or erect, or permit or suffer to be built or erected, on any part of the hereby granted lot of ground,, beyond the distance of sixty-five feet from the said .Eighth street, any buildings whatsoever, other than privies, millc or bathing-houses, and walls or fences not exceeding the height of ten feet from the level of the ground, nor erect any building whatever between the dwelling-house to he erected fronting on said Eighth street, and the aforesaid distance of sixty-five feet from the said Eighth street, other than such as shall merely he for the accommodation of the said dwelling-houseThe ground-rent was redeemable at any time within seven years, by payment of $3750. The deed contained a covenant by Alexander Henry that he would procure releases and conveyances to the grantees from all his children within one year after their respectively arriving at the age of twenty-one. . . . -At the time of this conveyance, and for several years after-wards, Henry occupied said adjoining property as his residence. The wife of said Alexander Henry died in his lifetime, having had six children. Five of these children, -with • the respective husbands and wives of such of them as were married, by three several indentures, dated October 8th 1816, and October 29th 1821, granted and conveyed to said Henry in fee all their respective shares in said larger lot. The remaining child died in the lifetime of her mother, intestate, and-leaving issue one child, upon whom her share descended, and vested in fee: and, June 5th 1845, this child, with her husband; granted and conveyed all their share in said larger lot to said Henry in fee. January 14th 1816, Drosddorf and Roberts conveyed the corner property to James Dundas in fee, subject to the ground-rent, and also to the condition, but with a clause added as follows : “ without the permission or license of said Alexander Henry, his heirs or assigns.” In January 1838, Dundas conveyed to Andrew D. Cash in fee, said house and lot, subject to the ground-rent, and also to the restriction. Prior to April 30th 1839, Henry had, as a matter of courtesy merely, without any consideration, consented that Cash should erect a dining-room on said lot eleven feet in height, but refused to allow the restriction to be interfered with beyond the building of the dining-room eleven instead of ten feet high. Henry, by deed dated April 30th 1839, endorsed on Cash’s deed for the corner property, after reciting that Cash had, with his consent, previously built a dining-room on the lot of eleven feet in height, granted to Cash in fee, in consideration of one dollar, the right to continue and maintain the said dining-room of said, height for ever. “Provided, however, that nothing herein contained shall be so construed as in anywise to impair, prejudice, or affect the condition and restriction in the said within indenture particularly recited and set forth in relation to building on the within described lot.” , .Cash conveyed the corner property, May 1st 1839, to Ashhurst, subject to the ground-rent and restriction, “ except so far as modified and changed by”-the last-recited deed. Ashhurst owned the property at the time of Henry’s death. In August 1847 Henry died, seised in fee of said ground-rent of $225, and also of the lot and dwelling-house to the southward of and immediately adjoining the corner property. By his will he devised said dwelling-house and lot in trust with a- power of sale. He also authorized his executors to assign and convey his ground-rents in payment of legacies. Said executors by deed dated August 14th 1848, granted and assigned said ground-rent of $225 to Mrs. Martha H. Chambers in fee, in part payment of a devise to her under the will. In May 1849, Ashhurst conveyed the said corner property, by the description of “ all that three-story brick messuage, with the one-story bach building or dining-room, thereto attached, and the lot of ground,” &c., to John Buddy in fee, subject to the ground-rent, and also to said restriction. The surviving trustee under Mr. Henry’s will, by deed dated April 7th 1857, conveyed said dwelling-house and lot, adjoining said corner lot to the southward, to complainant. In February 1858, Buddy conveyed said corner property, subject to said ground-rent, and also to said restriction, to John L. Martin, the defendant in fee. Mrs. Chambers died in March 1860, seised in fee of said ground-rent of $225, having first made her will, the executors named in which, by virtue of certain powers therein given, granted and assigned said ground-rent to John L. Martin, the defendant, in fee, whereby the same merged and became extinguished. The bill, after setting out the title of the respective properties, alleged that complainant, as the owner, by title from Alexander Henry, of the dwelling-house and lot adjoining the said corner premises on the south, was entitled to the full benefit and privilege of said restriction; that his back buildings face north, and the maintenance of the restriction was absolutely necessary for proper enjoyment of his property, since, if the restriction be infringed or broken, the health and comfort of the occupiers of said property will be irreparably injured; that, by means of the restriction, the light and air have access from Locust street, across the corner lot, to complainant’s premises. That, on the western side of said ten-feet wide alley the wall of the Musical Fund Hall rises to the height of a three-story dwelling-house; and, unless the restriction is enforced upon the corner lot it may be built upon the full width to its entire depth to said alley, and without limit as to height, and thus complainant’s property be shut in, leaving only a narrow well for access of light and air, and the health and comfort of the occupants, and the property itself be greatly injured; that it was the intention of defendant to build on the corner lot, without regard to the restriction, under pretence of a right so to do, and prayed an injunctioir to restrain defendant, his agents, &c., from infringing said restriction, and. for general relief. The answer admitted the allegations of the bill as to the title to said two lots of ground and dwelling-houses now vested in the complainant and defendant respectively; but alleged that in the deed from Henry to Drosddorf and Roberts for the corner property, there is no remedy or penalty prescribed for breach of said condition, nor any covenant on the part of the grantees to perform it; that said Alexander Henry laid out the large lot mentioned in the bill prior to the conveyance to Drosddorf and Roberts, according to a plan given in the answer; that said Henry did not, by his will or otherwise, give and devise to the trustees, to whom he devised the premises adjoining the corner, any right, title, or interest, in or to the condition in the deed to Drosddorf and Roberts ; that the grant and assignment from Henry’s executors to Mrs. Chambers conveyed the said ground-rent of $225 to her, “together with the reversions and remainders of the premises, and all the estate, right, title, interest, property, claim, and demand whatsoever, which was of the said Alexander Henry, as well at law as in equity, of, in, and to the same, and of, in, and to the lot of ground whereout the said rent is issuing and payable;” that said surviving trustee did not in any way grant or convey to complainant any right, title, or interest, in or to said condition in the deed to Drosddorf and Roberts; that the executors of Mrs. Chambers, by their deed to the defendant, conveyed to him the said ground-rent, “ and the reversions and remainders thereof, and all covenants for payment thereof, and all the estate, right, title, interest, property, claim, and demand whatsoever, which was of the said Martha H. Chambers, at and immediately prior to the time of her decease, of, in, and to the same, and of, in, and to the said lot of ground whereon the same was so as aforesaid charged;” denied that complainant is entitled to any benefit or privilege of said restriction in the deed to Drosddorf and Roberts; or that the enforcing of said restriction is necessary for the proper enjoyment of complainant’s property, or that the health and comfort of its occupants or the value of the property would be injured and damaged, if the restriction be not maintained; and admitted that he intended to build without regard to said restriction, as follows, to wit: “ At the rear end of said dwelling, and attached thereto, a piazza, extending in height from the ground to the eave of the roof of said dwelling, enclosed on the south side With a nine-inch brick wall and open to the west, and extending about eight feet westward; and also, at the distance of about fifteen feet westward from said dwelling, a back building, to be connected with said dwelling by a stairway on the side next to Locust street, and to be in width from said Locust street nineteen feet four inches, and in depth westward 'forty-four' feet, to the ten-feet wide alley, and nearly as high as .the eave. of said dwelling, leaving on the south, along the" entire length of said hack building, a space of three feet two inches between its face and his party line 'on the south, and a clear space, between said back'building and complainant’s back building, of ele.ven feet;” and alleged that at the time of the deed to Drósddorf and Roberts, that part of the city was almost exclusively occupied- by dwellings ; that since then, places of business have been advancing into that neighbourhood, and he desired to improve his property in such manner as'to conform to advances of business, that he might enjoy its just fruits, and not be deprived of: them by the diminution of its value as a mere place of residence.' ■ ' ■ It appeared, from the proofs, that complainant had known of the restriction before he purchased the property adjoining the corner from the surviving trustee under Henry’s will; that the trustee had no doubt but that the purchaser of that property would be entitled to the benefit of the restriction upon the corner property; but at the same time was unwilling, as the will made no mention of the' restriction, and he was acting in a fiduciary character only, to execute a deed containing an express grant of. the benefit of the restriction; that, in 'consequence of this unwillingness, complainant, at the joint expense of himself and said trustee, obtained the opinion of eminent counsel (the late Thomas I. Wharton, Esq.), that the purchaser would be entitled to the benefit of the restriction as appurtenant to the property, of which benefit he could not be deprived by any act on the part of any other representative of Henry; and that upon this opinion complainant took his deed from the surviving trustee, without any express grant of the benefit of the restriction. • A motion for a preliminary injunction upon the bill, affidavits, and counter affidavits having been denied prior to the filing of the answer, the defendant immediately went on and erected a building in violation of the restriction, after the intended plan set out in his answer. When the case came up for hearing on bill, answer, and proofs, the bill was dismissed without argument, and the 'complainant took this appeal.
49 Pa. 299Clark v. Martin (1865)
This was an appeal by defendant from the order of the court below, dismissing a motion to set aside writs of assistance and fi. fa. for costs granted to enforce decree in equity made as above stated. The facts, up to the time of the decree, appear in the case of Clark v. Martin, ante p. 291. The decree having been drawn for the removal of the building erected in violation of the restriction, and a copy served on defendant’s counsel, was filed, by the court, June 26th 1862, without amendment. June 30th 1862, complainant sued out a writ of perpetual injunction, being in substance a copy of the decree; to which writ the sheriff returned that he had served the same on the tenant in possession, on the defendant’s solicitor, and also on his agent. July 9th 1862, upon affidavit filed that the decree -had not been complied with, a writ of attachment issued which was returned non est inventus; and thereupon, July 12th 1862, a writ of sequestration issued directed to the sheriff. October 23d 1862, complainant filed a petition, setting forth so much of the decree as related to the taking down of the building and the payment of costs, and reciting also the issuing, service, and return of the writ of perpetual injunction, the issuing and return of the writ of attachment, and the issuing of the writ of sequestration, which was still in the hands of the sheriff, and the non-compliance of the defendant with the decree, and praying for a writ of assistance and a fi. fa. for costs. A rule to show cause was thereupon granted. At the meeting of the court in banc, in January 1863, on application by the defendant, a rule was granted to show cause why the decree should not be amended. Application also was made for a rehearing and leave to file a bill of review. The decree was amended by consent, and a rehearing and leave to file a bill of review were refused. On the 14th of February 1863, the rule for writs of assistance and fi.fa. for costs was made absolute. The same day the defendant took a rule to show cause why all the proceedings since the decree should not be set aside. This rule, after argument, was discharged; and on the 28th of February defendant took a rule to show cause why the order allowing writs of assistance and fi. fa. for costs to issue should not be rescinded, upon the ground that the defendant was in the military service of the United States. Depositions were taken, and after argument the rule was dismissed, and the following opinion was delivered by Woodward, J.:— “ The process sought to be set aside is that which was issued in execution of a decree in equity. I have no doubt that it is ‘ civil process’ within the meaning of the 4th section of our Stay Law of 18th of April 1861; and that it ought to be stayed if that section, as applied to the facts of this case, can be considered constitutional. The Supreme Court have lately held it constitutional in two eases where the term of the military service was shown to be for three years or during the war, these latter words being construed to mean less than three years. See Brietenbach v. Bush, 8 Wright 313, and Coxe v. Martin, 8 Id. 322. “ But in this case the defendant’s muster was on the 16th of September 1861, ‘ for the term of during the war.’ There was no other definition of his term of service. This is shown by the muster-roll and the certificate of the mustering officer, now before me. “ His muster could not have been under the Act of Congress of 22d of July 1861, for that act authorized the president to accept not more than five hundred thousand volunteers, for such time as he should direct, ‘ not exceeding three years nor less than six months.’ Had the defendant been mustered under this act, his term would have been defined thereby, and would have been the same as in the adjudged cases above referred to. “But three days after this act, the president a-pproved another Act of Congress, dated 25th of July 1861, which authorized him to accept any number of volunteers ‘ the exigencies of the public service may in his opinion demand;’ and, says the 2d section of this act, ‘ they shall be mustered into the service for during the war.’. “ It was under this provision the present defendant was mustered in. No limitation or definition of his term can be obtained, except what is implied by the words ‘ during the war.’ These words, when found following a specific term of three years, were construed to mean less than that period. They were held to be not an extension of the specific period, but a possible abbreviation of it. Even as such, however, they were indefinite, and were so treated in the cases above referred to. Those cases were ruled on the ground that the maximum period was definite, and as that was considered not an unreasonable period, under all the circumstances of the case, no account was made of the indefiniteness of the possible abbreviation. And the constitutionality of the Stay Law of 1861 was supported solely on the ground that the utmost stay it could give to the defendant was for a period of time that was definite and reasonable. “ But how can that doctrine be applied to this case ? I am conscious of a strong desire to give every soldier the benefit of the Stay Law; but the Congress having, most unwisely as I think, made the enlistment of some soldiers definite and others indefinite, establishing thereby an invidious and embarrassing distinction, it is impossible to apply the Act of 1861 alike to both classes. It is to be hoped that the Act of 25th of July 1861, may be modified by the next Congress, so as to take away the-difficulty encountered in this case. “If I am to put myself upon the reasoning of the Supreme Court, in the cases above mentioned, and it is plainly my duty to do so, I must hold the Stay Law of 1861 inapplicable to this case, or unconstitutional if applicable. That law is valid only when it stays civil process for a reasonable time, and reasonableness includes definiteness. It has to be supported in the face of constitutional provisions which forbid the legislature to impair contracts, and which secure to every man for injury to his lands, goods, person, or reputation, remedy by due course of law, an l right and justice, without sale, denial, or delay. Civil process is thus guaranteed to the citizen by a law that is higher than the legislature, and which they can no more alter or disregard than the humblest man in the state. But under the pressure of such extraordinary events as have crowded into our history for the last two years, the Supreme Court went to thé ’extremést verge of the constitution to sustain the .Stay Law for three years and thirty days from the date of enlistment. I have no right to anticipate that they will sustain a legislative suspension of civil remedies for a period so indefinite as during the war. What can he more indefinite ? The prevalence of a contagious disease, the duration of a panic in the money market, the successive failure of crops, or any other great public calamity, would afford a rule of legislation quite as certain and definite as this deplorable war. The war does not suspend the constitutional rights of the citizen any more than these other calamities would do. They all constitute- strong grounds for forbearance on the part of creditors, but the appeal on such grounds must be made to the discretion and humanity of creditors. Courts of justice cannot listen to it. They must give every man his meat in due season. They would not be courts of justice if they did not, for in Justinian’s Institute, lib. 1, justice is defined to be the constant and perpetual desire of giving to every man that which is due to him. “ It is not fit or necessary that I should discuss the probable duration of the war. Whether it shall last as long as the most timid fear, or shall be terminated as soon as the most confident hope, its duration is essentially and in a very high degree uncertain, and that is all that I need to take notice of in.this case. According to the settled doctrine of the courts, the legislature have not the constitutional power to suspend the civil remedies of a citizen for an unascertained and uncertain period. The Act of 1861, if applied here, will be such legislation, and therefore I have no right to give it effect. “ The motion is dismissed.” The complainant accordingly issued the writs of assistance and fi. fa. for costs; whereupon the defendant took this appeal. January 9th 1865, Charles S. Coxe, executor of E. S. Coxe, deceased, presented his petition to the court in banc, setting forth that his testator had held a mortgage upon the' property in question, that the defendant Martin had died since the last proceedings had been had in the case; and the premises in question having been sold by Martin’s administratrix, under' the order of the Orphans’ Court for payment of debts, had been bought by the petitioner for the protection of the mortgage held by his testator; that the mortgagee had not been made a party to the bill in equity, and the decree in the case had been founded upon the assumption that Alexander Henry, at the time of the creation of the restriction, was the owner in fee of the premises, which was a mistake- in fact; and asking that the decree be opened, and the petitioner allowed to come in and defend.
49 Pa. 304Appeal of McCann (1865)
Appeal from the Orphans’ Gourt of Philadelphia. This was an appeal by Catherine E. McCann, a minor over the age of fourteen years, from the decree of the Orphans’ Court, refusing to permit her to choose a guardian. On the 13th of October 1864, the petition of Catherine E. Mc-Cann was filed in the Orphans’ Court, setting forth that she was seventeen years of age, was the inheritrix of an estate amounting to between $15,000 and $20,000, then and now in the custody of John B. Colahan, Esq., who was appointed her guardian on the 15th of September, A. D. 1854, she then being seven years of age. That at the time of his appointment, security under the order of the court was entered by Christopher Fallon, Esq., in the sum of $28,000; that Mr. Fallon had since died insolvent, and that the estate was in consequence without any security whatever. Upon which state of facts she prayed permission to choose a guardian, nominating John P. Levy, Esq., as her choice in that behalf. To this was appended the usual affidavit respecting the entire fitness of Mr. Levy for the trust. The answer of the guardian Mr. Colahan, admitted that on the 15th of September 1854, he was appointed guardian of petitioner, she being then under the age of fourteen years, and now over that age. That the father of petitioner was Bernard McCann, and her mother Catherine McCann, both members of the Catholic church, deeply attached to its faith and worship, and anxious that their children should be brought up in the same faith and worship. The father died first, and the mother on the 24th July 1854, having made her last will and testament, which was duly admitted to probate, by which she appointed her father, Isaac Jones, and Mark Anthony Frenaye, executors, and bequeathed all her estate to her three children, and if any of them should die under full age unmarried and without issue, gave her share to the survivors of them, and if but one survivor, such survivor was to take the whole; and she appointed her father, Isaac Jones, and John B. Colahan, guardians of her children, adding these words: “ It is my will that my children be all brought up and educated as strict Roman Catholics, so that they may possess and be practical in the observance of the religion of their parents.” That when the executors settled their accounts they passed over the estate of said testatrix unto the persons 'named as guardians in said will, and took credit for such payment to the said guardians, which was allowed by the auditor and this court, but the principal was directed to be held by the respondent as guardian duly appointed by this court, and the securities now stand in his name for the surviving children. The respondent submitted for the consideration of the court whether by said will he and Isaac Jones were not made testamentary trustees, under the mistaken name of guardians, by reason of said limitations over of her estate to survivors and survivor, requiring a trust to subserve said limitations, and also by reason of the further clause imposing duties upon them of a trust character in relation to their estates, namely: “ Item. It is also my will that the portion which each of my children shall receive from my estate (as well as from the estate of their father, the said Bernard McCann), should, during their minorities, respectively be invested by their guardians, or the survivor of them, on account of each child, separately, with such accumulation in the way of interest as may arise therefrom, in good and safe securities, according to their or his best judgment, reserving such parts only of the interest thereon as might be deemed requisite to defray the education and maintenance of my said children respectively.” That said estate has been invested and managed principally in accordance with the directions of said will, such investments being made in securities authorized by law and generally approved by this court, and are now so held with increase by interest accumulated without the loss of one dollar. That it was due to the earnest desire of the testatrix and of the law that any guardian the court may appoint should be of the same religious persuasion as that of the minors’ parents. The respondent further averred that said ward has hitherto been kept by him, and her expenses of boarding paid, with her grandparents, the parents of her mother, as a suitable place for her; and that he apprehends a purpose of the proposed change of guardians is to remove her from under the care of her grandparents, a step which he deems of imminent peril at an age so inexperienced, and attended also with danger to her estate. The matter was heard on petition and answer, and the court refused the prayer of the petitioner; the Hon. Oswald Thompson, P. J., delivering a short opinion, setting forth that, in the judgment of the court, the Act of 1832, § 5, prohibited the Orphans’ Court permitting a minor over fourteen years of age to choose any one, however in other respects competent and respectable, his or her guardian, if such person belonged to a denomination of Christians different from that of the minor’s deceased parents. Which 'was the error assigned here by the appellant.
49 Pa. 310Gravenstine's Appeal (1865)
Practice as to bill in equity where parties are improperly named as complamants. — Right of stockholder to restrain corporate acts by injunction. — Receiver not to be appointed where company is n'ot a party to the bill. 1. When parties named as complainants in a bill in equity are joined without thoir knowledge or assent, the bill as to them should be dismissed. 2. Though a stockholder of a corporation may interfere in equity for the protection of the company, yet something less or more than what is allowed by the terms of the charter, must have been done by the managers or directors, to authorize such an interference; and where a debt authorized by the company is created by and with the consent of the stockholders and directors, and judgment confessed therefor, a consenting stockholder is not entitled to an injunction against an execution issued thereon. 3. Thus, where one who had been a stockholder, and had, under a resolution, voted for by him as such, sold to the company his stock, taking the company’s note therefor, less expenses, it was held that he could not claim as a stockholder ; nor as creditor could he ask an injunction to restrain another creditor, whose debt was of the same nature in creation and consideration, from obtaining satisfaction by means of a prior levy upon the corporation effects. 4. Where the company was not a party to the bill, nor in court upon notice for a preliminary injunction, it was held error to appoint a receiver.
49 Pa. 322Reeside's v. Reeside (1865)
Certificate from the Court at Nisi Prius. This was an action on the case hy Mary Reeside, executrix of James Reeside, deceased, against John E. Reeside, in which the plaintiff declared as follows : — • For that whereas, at, &c., the plaintiff as executrix had and was possessed of a’ large sum of money, to wit, the sum of $500,000 of the moneys and funds of the estate of said James Reeside, deceased, and said plaintiff, for the better and speedier settlement of said estate, delivered and intrusted the said sum, to wit, at, &c., to the said John E. Reeside, to be employed by him to pay the indebtedness of said estate to the parties entitled thereto in the settlement of the same, and to return the balance, if any there should be, to said plaintiff, executrix as aforesaid. And the plaintiff avers that said John E. Reeside accepted and received the said sum for the purposes of said trust, and entered upon said professional employment of settlement as aforesaid, but notwithstanding his duty in that behalf the said John E. Reeside misconducted himself therein, and fraudulently appropriated' the said sum to his own use, and has refused and still does refuse to apply and appropriate the same to the purposes of settlement of said estate as aforesaid, and to return the said balance to tbe plaintiff, to tbe damage of tbe plaintiff of $800,000. To which the defendant pleaded not guilty, with leave, &c. The facts, as disclosed on the trial, were as' follows-:— By Act of Congress, passed February 7th 1857, a sum of money was appropriated to plaintiff in settlement of claims of her deceased husband. She had employed her son, the defendant, to attend to the claim, and he employed Joseph B. Stewart, Esq., a member of the bar, to present it before the Court of Claims and Congress. On February 25th 1857, the treasurer of the United States paid $326,501.70 on account. The warrants were endorsed in blank by plaintiff, and delivered to defendant, as her agent, to pay claims, and return the balance. On the 27th or 28th February 1857, defendant returned to plaintiff $100,000 of warrants, which she brought to Philadelphia, and on March 4th 1857, deposited $50,000 in the Bank of Pennsylvania, $25,000 in the Bank of North America, and $25,000 in the Bank of the Northern Liberties. The defendant came to Philadelphia, and as early as March 7th 1857, received part of the $100,000. By the 19th March the balance of the $100,000 was drawn out of bank, except $200 in the Bank of North America, and $37,111.37 in the Bank of Pennsylvania, which was held by the bank, by reason of a bill filed by a creditor of- the estate, until it failed, when the creditor received a check for $15,000, and a check for the balance was received by the defendant, and sold at a loss of $5615.36. The deposit in the Bank of North America was drawn out by two checks to order of J. E. Reeside, March 7th, $550, and March 19th, 200; one check to order of L. M. Oloss, and endorsed by him and defendant, March 12th, $3500; one check to “self or bearer” March 16th, $20,500, and a small check of $50. The deposit in Bank of Northern Liberties was drawn in one check to “self or bearer,” March 16th, $25,000. The deposit in Bank of Pennsylvania was drawn on as follows : —March 4th, self or bearer, $500; March 5th, A. J. Reeside, $2000; March 5th, S. C. Perkins, $510.87; March 5th, J. E. Reeside, $120; March 12th, two checks, $9257.96, and on same day the defendant deposited that sum to his credit in the same bank, which he drew out as follows: — March 12th, $1900; March 16th, $7357.96. All the above checks tvere in the handwriting of defendant. The testimony of A. J. Reeside w'as as follows:— “Not long after the money was deposited, John came to my mother and told her there were some judgments to be paid, and there was money wanted to pay them. I asked John why he should want to draw on this money ? I said that it was singular the $226,000 was not enough. He told me it was all important, —he must have the money. He got the money. He got money whenever he wanted it, — the amount was given just what he asked, and whenever he asked for it.” “ John generally drew checks when he wanted money, and mother signed them. When he wanted money he got it in checks, or notes, or stocks, — just as he wanted it. His demands continued till all the money was gone.” December 15th 1859, the United States treasury paid the balance due plaintiff, $39,893.54, which was received by defendant ; the balance of Mr. Stewart’s claim was settled March 8th 1860, by Mr. Henry M. Phillips, under defendant’s directions. The account of the plaintiff as executrix went before auditors, who awarded $40,539.64 to creditors, and a balance of $25,599.10 to plaintiff, besides her commissions, $11,341.10; and unpaid auditors and counsel fees $3302.25; total $60,792.15. The report was confirmed, and on appeal this court made a final decree in January Term 1863. This money being necessary to be produced, the defendant, after repeated requests, met his mother at Mr. Perkins’s office. She represented her condition to her son, and demanded the money in his hands, and an account. Mr. Yard testified, “he (the defendant) was asked what had come of the money ? He stated that he had none of the money. The question was asked where it was. He said his mother had it. He was asked if he knew what the consequence, would be — and was told his mother must go to jail. He said he couldn’t help it. Every effort appeared to be made to get something satisfactory out of him, but of no avail. There was a distinct call on him for an account and the money. He was requested to show what had become of the money. He said he had paid some judgments, but he couldn’t account for the rest. He was told there was $40,000 due to the creditors, and the money must be somewhere.” Some means were invested in loans, but they very soon went into the hands of defendant, with the trifling exceptions shown by Joseph and A. J. Reeside. It was proved that the defendant admitted that he had the plaintiff’s money. Mr. Stewart testified that within sixty days of the 8th March 1860 (at which date the auditors had the case in hand), “ I asked him where the money of the estate was. He said at one time he had $93,000 — at another, $95,000; and at one time it was rising $100,000. During these sixty days he said all these sums were in his hands. All these statements were made within sixty days from March 8th 1860.” He adds: “I asked John what would be the result of the estate, and how the estate was going, and what would be the amount distributed to Mrs. Reeside and the other children. He said, if the debts now before the auditor did not exceed $40,000 — and, as nigh as he could tell, they would not — there would he left between $40,000 and $50,000 for Mrs. Reeside and the other children. It was money in his hands. I knew that; for Mrs. Recside’s control of the money was hut nominal. This was during the sixty days which I have spoken of.” All the payments made were made by J. E. Reeside. Mrs. Reeside had no money. The defendant paid Mr. Stewart $10,000 less on his fee than he receipted for, and $13,000 less to judgment-creditors than they receipted for. These two sums defendant had not accounted for. The receipts for the full amounts were stated as payments in plaintiff’s account, and allowed by the auditors. The defendant charged and retained $18,000 as his compensation. The amount awarded to plaintiff by the auditors would have been $23,000 more, if the receipts of Mr. Stewart and the judgment-creditors had stated truly the amounts paid to them. A nonsuit was then asked for and entered by direction of the court, Thompson, J., delivering the following opinion:— “ If it were possible to consider this an action of assumpsit for the recovery of the money which passed into the defendant’s hands, I do not see how, under the evidence, it could be sustained. The testimony all goes to show that the very large sums of money which passed into his hands, did so as the agent of the executrix, the plaintiff, for the payment of debts or claims on the estate. It is equally apparent that very large sums were disbursed under the agency. This establishes a case of principal and agent, and no account stated or settled. The form of action in such circumstances is material; it is account render. Although assailed very severely of late, it still serves as a remedy in a case like the present. A direct action to recover all the money in such a case doe's not lie. There is no implied promise to return money delivered to an agent to be expended on the agency, unless indeed where the agent refuses to administer it at all. What I mean is, that if an agent expends money in the course of an agency in which there are money items and transactions, the principal cannot sue to recover back money paid on an item in the course of an agency on an alleged misappropriation. If so, every item might be so tested. The law has provided a remedy in account render, in wdiich the entire accounts may he tested, misappropriations disallowed and charged over to the agent, credits given, and a balance struck. It is so far equitable in form as to admit of the parties being sworn and compelled to disclose all about the matters of the agency. The action, however, here is neither in assumpsit nor account render. “ It is for fraudulent appropriation to his own use by the defendant of the money coming to his hands, as this suit is brought not on agreement. This is not proved. The items are pointed out to us as evidence of fraudulent appropriation. Fraud is composed in several elements, misappropriation and concealment, with a dishonest intent — deceit for the purpose of gain. If John E. Reeside had settled his accounts with his mother, and had fraudulently concealed anything misappropriated or misapplied by him, his principal, on discovering it, might sue for and recover it directly; so might this be done if the whole had been fraudulently disposed of. Here it appears that one or two items are supposed to show fraud. Stewart, being employed as agent to prosecute the Reeside claim before Congress, agrees to give, out of his own percentage if successful, $>10,000 to the defendant. He afterwards receives this. It is said that it was a fraud upon his estate, or rather upon his mother, to pay Stewart his full compensation, deducting this sum for himself. I see nothing like fraud in it. Whether his mother knew of it or not does not appear. No deceit seems to have been practised. Granted, if you please, that he might not be entitled to retain it, this does not establish fraud in its retention. Indeed it was not designated as the subject of this suit — nor has the plaintiff shown anything about it — that she did not agree to it; that she was deceived in paying it. If money to pay it was not properly applied, it was an item to settle as any other item in the proper action. The same may be said about the percentage Stewart agreed to pay out of the share or percentage allowed him for collection by creditors. If he had agreed to give the same sum to any one else, and it had been paid, it would have been all right. But it is alleged that as the creditors were reported by defendant as paid in full, while a part of it was allowed to him by Stewart, this established a fraud. It is not alleged that the creditors were paid more than was due them; but that the agent of the plaintiff made something out of them through' their counsel, who employed him to assist to settle with them. The estate lost nothing in the settlement. The agent gained something. Be it the rule that on settlement he might have to account for this sum to his principal, there is no evidence of collusion, or concealment, or fraud in it, shown. I could not allow the jury to find against the defendant without evidence of fraud, when the action, as appears by the narr. and original affidavit, is founded on it. “ In recent times it has been allowed to courts to stop a case in a stage before it goes to the jury, in place of afterwards. It is their duty to do so. If the plaintiff shows no cause, a jury is not to be allowed to experiment, or grope in the dark on the question of how it shall find. It is the duty of the court to nonsuit the plaintiff if it would grant a new trial in case there was a finding for him. It is an unpleasant duty, I know, for counsel greatly prefer their chances with the jury, but there is more certainty under the rule than without it. The experience of the judge enables him to say with safety whether the plaintiff has made a primá facie case or not. If not, no experiments are to be made with the jury. The party is nonsuited, and if he can amend his case he may bring his action and try it again. I feel bound to grant the nonsuit asked for here, for the reasons thus given.” The case was then removed to the court in banc, where the ruling of the learned judge at Nisi Prius was assigned for error.
49 Pa. 333Allen v. Henderson (1865)
u Heirs” in a devise, when a word of limitation and not of purchase.— Creation of estates tail by will.— Grant of income, when sufficient to pass whole estate devised. A testator devised to his daughter, then and at the time of his death unmarried, certain real estate, “ in trust for her heirs until they are twenty-one years old, until which time she is to have the income arising therefrom for her support and the support and education of her heirs, and should she die leaving no heirs of her body, then said properties to revert to her brothers or their heirs.” Held, 1. That the word “ heirs” must be considered a word of limitation and not of purchase; and the failure of heirs contemplated in the devise over, an indefinite failure: 2. That the devise in trust for the issue of her body, with a devise over limited upon an indefinite failure of issue, created an estate tail, if any interest vested in her: 3. That the grant of the income did pass the estate; and therefore 4. That the trust failed and the devisee took an estate in fee tail, which, by the Act of 27th April 1855, became enlarged into a fee simple.
49 Pa. 346Converse v. Colton (1865)
Explanation of award by arbitrator, when admissible. — Recovery in former suit, when an estoppel. — Extent of, established by the record, and explained by extrinsic evidence. 1. Where in an action for breach of contract to float logs to a certain boom, a former recovery in trover for their value was set up in defence, and the record of the suit given in evidence, it was held competent for the plaintiff to show by one of the arbitrators in the trover suit, that an award was made and recovery had by the plaintiff for only a small portion of the lumber declared for in that action. 2. The recovery in trover from a third person who had taken the logs as his own, was not applicable, as an estoppel; for the defendant, the contractor, was neither party nor privy to the suit; the title to the lumber converted passed by the recovery to the defendant therein, and for so much of it only, the plaintiff could not recover in the subsequent action for non-delivery under the contract.
49 Pa. 353Strauss's Appeal (1865)
This was an appeal by Peter Strauss, administrator of Henry Strauss, deceased, from the decree of the court below, on the distribution of the proceeds of the sheriff’s sale of John Strauss. All the material facts of the case will be found in the opinion of this court.
49 Pa. 359Sitgreaves v. Farmers' & Mechanics' Bank (1865)
Error to the Common Pleas of Northampton county. This was an action of assumpsit by The Farmers’ and Mechanics’ Bank of Easton against Theodore R. Sitgreaves, and was founded on defendant’s endorsement of two' promissory notes of P. S. Michler, viz., one for $3000, dated August 7th 1861, at ninety days, and one for $1200, dated August 27th 1861. To a statement with plaintiff’s affidavit of cause of action in the usual form, the defendant filed the following affidavit of defence : “Theodore R. Sitgreaves, the defendant above named, being duly sworn, deposes and says, that he has a just and true defence against the claim of the plaintiff in the above-stated action, the nature and character of wThich are as follows, to wit: That this defendant was but an accommodation endorser, for the said Peter S. Michler, of the two notes upon which this suit has been brought. That the said notes were discounted by the said plaintiff for the said Peter S. Michler, and that the said Peter S. Michler received the entire proceeds thereof for his own use and benefit, and that this defendant is in no otherwise liable by reason of the said notes or either of them. That one of the said notes, to wit, for the sum of $1200, is a renewal of an accommo-. dation note for the same sum, by the same parties, endorsed in the same manner, dated May 22d 1861, at ninety days, which was itself a renewal of a note of similar sum, same parties, for same purpose, dated April 17th 1861, and due May 23d 1861, which was also a renewal of a note for same amount, same parties, endorsed in the same manner, for the same purpose, dated March 6th 1861, all of which were discounted by the said plaintiff, solely for the use and benefit of the said Peter S. Michler. That as to the said note for the sum of $3000 this defendant was an endorser, for the accommodation of the said Peter S. Michler, of continuous notes for the sum of $3000 from January 30th 1861, up to November 8th 1861, when the note now sued on was protested. That when the note of January 30th 1861, became due it had been anticipated by a discount of a note of said Peter S. Michler, endorsed by this defendant, for the sole accommodation of said Michler, for the same sum, dated April 1st 1861, which said note was regularly kept up by renewals. The note for $3000, part of the cause of action in this case, being the last of the series. That the said Peter S. Michler did, on or about January 1st 1861, assign and pledge to the said plaintiff, as collateral security for his indebtedness and liability to said plaintiff at that time, and also for all indebtedness and liabilities which might thereafter accrue, sixty shares of the capital stock of the Thomas Iron Company, and forty-nine shares of the capital stock of The Farmers’ and Mechanics’ Bank, by executing letters of attorney authorizing the transfer of said stock. That the said plaintiff held the said certificates of the said Thomas Iron Company stock and the said letters of attorney until October 23d 1861, when they procured the same to be transferred to themselves, and held the same until January 26th 1863, when the officers of the said bank, plaintiffs in this case, transferred the same to themselves, to wit, twenty-five shares to the president, twenty-five shares to the cashier, and ten shares to one of the directors. That the indebtedness of said Peter S. Michler to said bank, other than the two notes sued upon in this case, was $5484.62, and the said plaintiffs on April 24th 1862, credited to the said Peter S. Michler upon their books, as the value or proceeds of the said Thomas Iron Company stock, the sum of $3000, and as the value or proceeds of the said Farmers’ and Mechanics’ Bank stock, the sum of $2205, applying by such credit the whole of the said value or proceeds to the said indebtedness other than the two notes sued upon in this case. That the sa.id certificates of Farmers’ and Mechanics’ Bank stock and the letters of attorney relating thereto were held by said plaintiffs until October 23d 1861, when they procured transfers of the same to be made to themselves, and have either disposed of the same since that time to other persons, or still hold said stock themselves, defendant cannot state wrhich, for the reason that, upon requesting plaintiffs to inform him, they refused so to do. That defendant is informed and believes, and expects to be able to prove, that the plaintiff did not sell any of said stocks at public sale, did not require said Peter S. Michler, or this defendant, to redeem said stocks, or any part thereof; did not notify said Peter S. Michler, or this defendant, that if not redeemed they would be sold; and did not sell or dispose of the same or any part thereof with the knowledge or consent of said Peter S. Michler, or this defendant. That as this defendant is informed and believes, and expects to be able to prove, the said stocks were worth at the commencement of this suit not less than §8500, to wit: said Thomas Iron Company stock, §6000, and the said bank stock, §2500; at the present time the sum of §9000, to wit: said Thomas Iron Company stock, §6000, and the said bank stock, §3000; on April 24th 1862, considerably more than sufficient to discharge the aforesaid indebtedness of §5484.62; and on January 26th 1863, not less than §7400, to wit, §5000 for the said Thomas Iron Company stock, and §2500 for the said bank stock. And that upon the said Farmers’ and Mechanics’ Bank stock dividends have been declared and paid, as this defendant has been informed and believes, semi-annually, in May and November, as follows, viz.: Four per cent., amounting to §1.80 per share, at each of the said times, except in November last, when the dividend amounted to five and a half per cent., or §2.48 per share. And that upon the said Thomas Iron Company stock dividends have been declared and paid as follows, as this defendant has been informed and believes, viz.: In July 1861, in January 1862, and in October 1862, three per cent, in cash at each time, or §4.50 per share in all; in January 1863, four per cent., or §2 per share ; in July 1863, and in January 1864, each five per cent., or §2.50 per share, in all §11.'50 per share in cash, besides a stock dividend of twenty-five per cent., or fifteen shares of capital stock upon the aforesaid sixty shares, which said fifteen shares are and were of equal value with the other shares of capital stock as aforesaid, and drew the same dividends as the other stock, as above stated, from and after January 1862, when the said stock dividend was declared and paid. That the said fifteen shares of said stock received by said bank in January 1862, and the three per cent, cash dividend of the same month, and the dividends of May and November 1861 upon the said bank stock, have not been applied to any of the indebtedness of said Michler to the said bank plaintiff. That the first dividend hereinbefore mentioned upon said Thomas Iron Company stock being made and declared before the transfer upon the books of the company, being §1.50 per share, was paid, as defendant has been informed and believes, to the said P. S. Michler, and not to said plaintiff.” The court below (Maynard, P. J.), on a rule for judgment for want of a sufficient affidavit of defence, entered judgment in favour of the plaintiff for the following reasons: “ This suit is brought against an endorser. “ The contract of an endorser is positive that he will pay, on the single condition that the maker or acceptor do not. It is his duty to take up the note on receiving the proper notice of its dishonour. He cannot call upon the holder to prosecute the maker. It is a fundamental principle of the law merchant, that a holder of commercial paper may sue all the parties whose names are on it, or such of them as he may select, and the endorser cannot invoke as a defence the unadjusted equities that may exist between the holder and the maker. Those equities do not become tangible as his indemhity until he has taken up the pap>er which he endorsed; after he has taken the paper he then becomes a surety in the full sense of the term, and may assert and maintain all the legal and equitable rights of a surety. He may assert and successfully maintain, that collaterals which were placed by the maker in the hands of the holder shall be held and enure to his benefit for his indemnity. “In support of these principles I cite the case of Beebe v. The West Branch Bank, 7 W. & S. 375; and Trimble v. Thorne, 16 Johns. R. 152. Tested by these principles, the affidavit of defence in this case is adjudged insufficient, and the rule is made absolute, amount to be ascertained by prothonotary.” Which was the error assigned.
49 Pa. 365Cochran v. Eldridge (1865)
Certificate from Nisi Prius. This was a feigned issue awarded by Read, J., at Nisi Prius on a motion to open a certain judgment held by Andrew Cochran against James Eldridge, for the purpose of ascertaining what amount was actually paid or advanced on the securities on which suit was brought by plaintiff either before or after their maturity and to whom; and also whether the award was obtained by fraud or collusion. Under the ruling of the learned judge at Nisi Prius, the jury found that the sum advanced was only $3300, and that the award for $7834.98 was fraudulent and collusive. The case was then certified to the court in banc, where the opening of the judgment and the awarding of the issues above mentioned were assigned for error. All the material facts of the case will be found in the opinion of this court.
49 Pa. 373Opdyke's Appeal (1865)
Act of April 27th 1855 construed. — Right of illegitimate children to inherit from mother, along with legitimate child. — Devise of real estate to wife by husband vests title in her as the stoclc of a new descent. 1. Under the Act of April 27th 1855, providing that illegitimate children shall take and be known by the name of their mother, and they and their mother shall respectively have capacity to take or inherit from each other personal estate as next of kin, and real estate as heirs in fee simple ; illegitimate children are entitled to share in the proceeds of the real estate of their deceased mother equally with a legitimate child. 2. Where a mother takes real estate by devise from her husband, she becomes the stock of a new descent, and her illegitimate children are entitled to share in the proceeds, though not of the blood of the husband from whom the estate came.
49 Pa. 380Schick's Appeal (1865)
Distribution of proceeds of sheriff’s sale.— Where validity of prior judgment is successfully attached, benefit of verdict enures to attaching parties, and judgment is void only as to them. 1. In questions of distribution among contesting lien-creditors, those creditors only who unite in asking an issue to contest an older lien can derive benefit from a successful contest; and the judgment, whether found void in whole or in part, is void only as to the attacking parties and valid as to all others. 2. Hence in the distribution of the proceeds of a sheriff’s sale, it is error to set aside a judgment in behalf of creditors, who excepting thereto before the auditor, demanded no issue, and filed no affidavit as required by law to ground the issue upon.
49 Pa. 384Schick v. Pharo (1865)
This was a feigned issue awarded on tbe distribution of the proceeds of the sheriff’s sale of the real estate of Henry Schmitt. The fund in court was $610, which M. A. Dropsie, Esq., was appointed to distribute.
49 Pa. 387Firmstone v. Mack (1865)
Error to the Common Pleas of Northampton county. This was an attachment execution by William H. Mack against, Patrick Sheahan and wife, in which William Firmstone and E. Rockwell, agents for Charles Jackson, Jr., were summoned as garnishees, and came into the Common Pleas on the appeal by the garnishee from the judgment of D. M. Chamberlin, a justice of the peace of Northampton county. After the appeal was entered,- the following case was stated for the opinion of the court below:— The judgment given by Justice Chamberlin against Sheahan and wife, was in a suit upon a note which contained the following clauses, viz.: “ And further, for value received, we hereby waive all and singular the rights, benefits, and privileges of the Act of Assembly of the 9th of April 1849, which exempts from execution, &c., property to the value of $300 — both as to real and personal estate now owned by us, or we may hereafter own. Also the Act of Assembly which exempts money due for labour done, from collection by attachment, and all other exemption laws now in force in this Commonwealth,” The money attached upon the aforesaid judgment in the hands of the garnishees, was the amount due Patrick Sheahan for wages as a labourer at the iron furnace of the garnishees. If the court are of the opinion that the wages of Patrick Sheahan could be attached for the amount of the judgment obtained upon the note given as is above stated, or that the garnishee could not legally make the defence that the sum in his hands was not attachable, then judgment to he rendered in favour of the plaintiff for such sum as the court shall be of opinion the garnishee under his answer is legally bound to pay. If the court are of a contrary opinion, then judgment to be rendered in favour of the appellant. The transcript to be a part of the case. The above stated case to be in the nature of a special verdict and subject to a writ of error. On hearing the case the court below (Maynard, J.) directed the entry of judgment in favour of the plaintiff against the garnishees, and filed the following opinion:— “ The only question of law in this case is, whether a debtor can waive the right, privilege, or benefit secured to him in the proviso of the 5th section of the Act of 15th April 1845. “ The proviso reads as follows : ‘ Provided, however, that the wages of any labourers, or the salary of^any person in public or private employment, shall not be liable to attachment in the hands of the employer.’ “Before this enactment was passed, the wages of the labourer and salaries were liable to attachment, at the suit of their creditor. “If the protecting privilege of the statute can be waived and is waived by the debtor, for whose benefit it was enacted, to him the statute becomes a dead letter; to him it is no law. “ It was begotten for his benefit and brought into full life, but he has strangled it. “ That the privilege conferred upon the debtor, by the proviso of thé statute, may be waived by him, we think has been clearly decided by our Supreme Court in several cases, where the same principle has been raised and ruled. “ In the case of Bowman v. Smiley, 7 Casey 225, one of the principal questions in the case was, whether the debtor could waive the privilege of the $300 exemption law.” “Justice Strong in delivering the opinion of the court says :— ‘Notwithstanding the doubts which have sometimes been expressed, it is now generally conceded, that the statutory privilege of the exemption of a portion of his property from levy and sale under execution, is one which the debtor may waive. Where made at the time the debt is created, the waiver is based upon the same consideration, as that upon which rests the liability to pay, and is therefore irrevocable. Such a waiver is a contract that, so far as regards the judgment-creditor in whose favour it is made, the debt shall be collectable in the same manner as if the Act of 9th of April 1849 had never been passed.’ “ The note on which the judgment in this case was obtained contains an express waiver of the ‘ rights, benefits, and privileges of the Act of Assembly, which exempts money due for -labour done, from collection by attachment.’ “ I am of opinion that the privileges and benefits of the proviso in the act referred to might be waived by the debtor, defendant. And that it was a personal privilege to the debtor, in which the garnishees in this case were in no manner interested, and had not the right to test the question by appeal against the attaching creditor. “ I do not think the privilege of the statute extends to the employer. But I am free to say, that in my judgment it ought to be so extended to protect them from liability to'be brought into the courts to settle the wages of their labouring men. It is a great inconvenience for the owners of large manufacturing establishments, employing as they do, several hundred day labourers, to be liable to such inconvenience and expense, a portion of which they must lose. “ But the legislature only can remedy such inconveniences; the courts are powerless to do so. “ We direct judgment to be entered in this case in favour of the plaintiff against the garnishees for the amount admitted to be due in their answers to Patrick Sheahan, and in their hands, after deducting therefrom all the costs in the suit prior to the appeal, which costs are to be paid by them from the fund in their hands. “ The costs accrued subsequent to the appeal, to follow the judgment, and to be paid by the garnishees personally. “ The prothonotary is directed to ascertain the amount and enter judgment accordingly.” Which was the error assigned.
49 Pa. 394Allentown Bank v. Beck (1865)
Defendant in execution competent witness for claimant on interpleader issue. — Retention of real estate after sale, when not fraudulent. — Levy on personal property when unnecessary.— What irregularity will avoid judicial sale of personal property. — Sale of, when fraudulent in law. 1. The defendant in an execution, under which goods previously sold to others, are levied on as his property, is a competent witness for the claimants, in an interpleader issue, framed as to the debtor’s creditors, between them as plaintiffs and the execution-creditors as defendants. 2. The rule governing sales of personal property, that retention by the vendor, is fraud as matter of law, does not apply to sales of real estate, the title to which is governed by the conveyance as its index, and not by the possession : but fraud in the conveyance of the real estate alleged to have been conveyed fraudulently, is for the jury to determine as a question of fact. 3. Where the plaintiffs in the issue claimed title to certain personal property, under a prior sheriff’s sale, when no other writs were in his hands, the want of actual levy and seizure under their writ, is immaterial, where it was immediately followed by a sale when the goods were in the actual power and control of the sheriff. 4. It is not a ground of legal fraud that the sheriff had given the advertisements to the defendant in the execution to be posted, especially where there were many bidders at the sale: nor, that the plaintiffs in the execution purchased all the property, and that the prices were low, if the sale was public, without adverse levy or claim, and without remonstrance on the part of the defendant.
49 Pa. 410Eshleman v. Lewis (1865)
This was an action of ejectment, by Eanny Eshleman against Ellis Lewis, brought to recover possession of a lot of ground at the north-east corner of Arch and Sixty-third streets, Philadelphia.
49 Pa. 419Knauss's Appeal (1865)
 Duration of lien of judgment transferred from one county to another. The lien of a judgment transferred from one county to another, under the Act of April 16th 1840, continues for the full period of five years from the date of its entry in the county to which it has been removed.
49 Pa. 424McKeen v. Delaware Division Canal Co. (1865)
Control of navigable streams by the Commonwealth through her agents the canal commissioners. — Injuries arising from exercise of eminent domain discussed. — Rights of vendee of water-power under deed from corporation authorized to improve navigable stream. — Rights of purchaser of state canal. 1. The great freshwater rivers of Pennsylvania, including the Delaware and Lehigh, have always been treated as navigable ; and the power and control of the state, for their improvement as highways, held absolute and paramount. 2. The agents of the state, under the authority of the law providing for the construction of the Delaware Division Canal, and the several acts relating to the appointment and duties of canal commissioners, had power to construct a dam at the mouth of the Lehigh river, a confluent of the Delaware, as a feeder for the canal, and to preserve, repair’, and maintain it in proper operating condition. 3. Whore by previous legislation, certain rights to the waters of the Lehigh river had become vested in The Lehigh Coal and Navigation Company, who had constructed their canal and sold water-powers therefrom, an injury to any property or right of the company or the vendees of the water-powers, by the construction of tho dam below, at the confluence of the two rivers, was not by direct attack and thus within the constitutional inhibition from impairing contracts, but followed as a consequence of the lawful exercise of the right of eminent domain, subordinate to which paramount power of the state, all rights of property, corporeal and incorporeal, are held : and for tho “ taking,” within the state constitution, ample provision was made by .statute, within which provision such injury by backwater is included. 4. The power of the agents of the state was not exhausted in the erection )f the first dam, so that a second could not be built of greater height without fresh legislation and a new provision for compensation ; for it was the duty of the canal commissioners, under statutory provision, to keep in repair all public works: and if the dam proved inadequate to supply the water necessary for the navigation, to rebuild and maintain it by any appliances, of adequate- height; and it was in their discretion so to do in preference to lowering the sill of the lock and the bed of the canal to suit the dam. 5. Where the deed of the Lehigh Company conveyed to the purchasers of water lots with water-powers, the right of drawing a specified quantity of water under a given head, expressly providing that the grant should not at any time interrupt or impair the navigation, and without guaranteeing whon, where, how', or to what extent of fall the water should be used, held that the property of the vendees was that of ordinary ownership of a water power: and the injury which followed the swelling of the water of the Lehigh by raising the dam at its mouth to improve the navigation of the Delaware Canal, was consequential only and without remedy unless conceded by the state as an act of grace. 6. The Delaware Division Canal Company, as purchasers mediately from the state, are entitled to maintain the dam of the same height as previously maintained by her agents; and where that height has not been exceeded, are not liable for an injury to the water-power of a mill-owner on the Lehigh, resulting from backwater.
49 Pa. 440City of Philadelphia v. Miller (1865)
49 Pa. 457Hall v. Vanness (1865)
Error to the Common Pleas of Tioga county. This was an action of ejectment,’by W. W, Hall against Henry P. Vanness, John Vanness, and Peter V. Vanness, to recover a tract of land in Rutland township, containing about eighty-four acres. The land was formerly part of the Bingham estate. Dr. Robert N. Ross was agent of the trustee of that estate until his death, which occurred in February 1842. The contract under Avhich plaintiff claimed was executed on the 9th of March 1832, by E. B. G-eroulds as sub-agent under Dr. Rose, and was by him delivered to Eli Day, Avho paid $4. Day improved some thirty to thirty-five acres, built a log-house and barn on the land, and after some four or five years of residence and cultivation, sold to Eli Bartlett, Avho remained in possession until the spring of 1839, enlarged the improvement, and sold to Nicholas Hall for $350. Hall paid the $350, built a new log-house, and resided on and cultivated the land till the 15th February 1840, when he was suddenly killed by the fall of a tree, tie left a wife, Nancy, and six minor children, who continued to reside upon the land. In September 1844, she surrendered the Day contract, and took a new contract in her oavu name September 6th 1844. This contract was executed by W. B. Clymer, then general agent for the Bingham estate, acting under a general power of attorney. Some time before March 1845, H. P. Yanness purchased the Clymer contract of Mrs. Hall for $150, and on the 22d of March obtained a contract from the Bingham trustees for the land at the same price she was to pay, and on the 1st of August 1854, having paid the balance of the purchase-money, viz., $279.36, with interest from July 1844, he obtained from them a deed therefor. The' plaintiff was one of the heirs of Nicholas Hall, and sought in this action to recover the land of his ancestor. On the trial, the counsel for the plaintiff offered in evidence a map referred to and identified by W. B. Clymer, as received from Dr. R. H. Rose, with the lot in question noted, and having the name of Eli Day Avritten thereon. They also proposed to prove further, by William Bache and others, that E. B. Geroulds acted as a sub-agent of the Bingham trustees, making surveys and executing contracts, Avith the knowledge and assent, and under the verbal directions of said Rose; and that his acts as such sub-agent, in executing contracts and receiving moneys thereon, were recognised and adopted by the said trustees. That his act in executing this contract to Eli Day, and his subsequent deduction of three years, nine months, and twenty-one days interest was affirmed, ratified, and adopted, by the execution by said trustees of a contract for the balance due on said Day contract, less by said deduction, to Nancy Hall, widow of Nicholas Hall, in whom the equitable title of Eli Day was vested at the time of his death; together with the conveyances, by means of which such equitable title Avas so vested in said Nicholas Hall. Defendants’ counsel objected to the offer of plaintiff’s counsel to prove ratification of the Eli Day contract by the Bingham trustees. 1st. Because the old map offered in evidence does not show any ratification of said contract. It is not shown to have been made for the Bingham trustees, or by any one in their employment, nor for what purpose it was made, by whom or when, or that any agent of the said trustees ever had his attention called to it prior to the commencement of this suit in 1860, nor at any time since, until this day. 2d. That all evidence in relation to what Ephraim B. Geroulds did under or for R. H. Rose, in other cases, whether by parol or written authority, is irrelevant; and that any authority from said Rose to another to execute a contract for the sale of land belonging to the Bingham trustees would have been void, as he had no authority under the letter of attorney to him to appoint any agent or attorney for that purpose. And if he had such authority he could only authorize another in writing. And no parol evidence of authority, in this or any other case, or parol ratification by him or other person, or even the said trustees themselves, would be evidence in this case, under the facts given in evidence. 3d. That the execution of the contract to Nancy Hall was no ratification of the Eli Day contract; but if, at the time known to Mr. Clymer, his execution of that contract was a denial of all rights under the Eli Day contract, as Nancy Hall'did not represent the persons, if there were any, who claimed under said Day contract, as is shown by this suit in opposition to the same. The court excluded the map offered; permitted plaintiff to prove that E. B. Geroulds acted as sub-agent of the Bingham estate, making surveys and receiving money on contracts of said estate with settlers on lands of the estate, and with the knowledge and assent, and under the verbal directions of Dr. R. H. Rose, and that his acts as such sub-agent were ratified; but excluded so much of said offer as proposed to show, in general terms, that he executed contracts without showing that he had written authority from the trustees authorizing him so to do, or without showing a recognition of such contracts by said trustees in writing; also excluding so much of said offer as proposed to show a ratification or recognition of the Eli day contract, by the introduction of the contract itself, and the endorsement on it made by E. B. Geroulds, releasing the interest; but permitted them to prove any affirmance, ratification, or adoption of that contract by the trustees, made in writing at any time, or any verbal ratification of it, made while Eli Day was in possession of the land embraced in the contract, or subsequently thereto, by which he, or any one claiming under him, was induced to expend money or labour on said lot of land, in clearing, fencing, building upon, or otherwise improving the same. . The counsel for plaintiff then proposed to give in evidence the contract dated 9th March 1832, between Bingham trustees, by E. B. Geroulds and Eli Day, together with proof of the transfer of the equity created thereby, from Eli Day to Eli Bartlett, and from Bartlett to Nicholas Hall; to be followed by proof that, at the date of said contract said Geroulds was in the employ of B. H. Bose, general agent of the Bingham trustees, as sub-agent ; that with the knowledge and assent, and under the directions of said Bose, he made 'surveys, executed contracts, and collected moneys, and that his acts in so doing were uniformly adopted by the Bingham trustees; that he continued in the employ of said Bose, in the capacity aforesaid, from the year 1831 till the death of said Bose, in 1842, and that said Bose was frequently in the township of Butland, between 1832 and 1842, looking after the Bingham lands; that in 1842, after the death of Bose, W. B. Clymer was appointed, by power of attorney, general agent of the Bingham estate; that he received the books and papers of the agency from the office of B. H. Bose, among which was a map of the township of Butland, with the lot in question marked thereon, and the name of Eli Day written thereon; in connection with which counsel offered said map of Butland township. They further proposed to prove that W. B. Clymer, after his said appointment, continued E. B. Geroulds in his employ till the death of said Geroulds, in 1845: that while in his employ he sent him into the eastern part of the county, where the lot in question lies, to compromise, settle, and renew contracts; that while so engaged he came into the township of Butland, sent for Nancy Hall, widow of Nicholas Hall, who was in possession of said land, and met her, and compromised and settled said Day contract with her, by making a deduction of three years, nine months, and twenty-one days interest thereon. That afterwards, and within a few weeks from such settlement and compromise, his act in recognising said contract and making such settlement was ratified and adopted by the Bingham trustees, by the acceptance of the surrender of said Day contract, by an execution of a new contract to said Nancy Hall, upon the basis of the settlement and compromise so made as aforesaid for the same land; which contract, bearing date the 6th of September 1844, is herewith offered in evidence. [To be followed by evidence showing that the surrender of the said Day contract by Nancy Hall was induced by H. P. Yanness, by representing to her that she would be driven off the land if she did not sell. That he induced her to take such new contract and sell to him, for the purpose of cutting off the claims of the heirs of Nicholas Hall. That he bought said lot of her at about one-third of its value; and that at the time of such sale she was not of sound mind; that he had full knowledge of the existence of the Day contract, and the fact that Nicholas Hall left children surviving him, of whom plaintiff is one; and that such children were at that time minors, living with their mother on the land in question.] Defendants’ counsel objected to the renewed offer of evidence by plaintiff’s counsel, for the following reasons, to wit:— 1st. Taken as a whole, it is irrelevant. 2d. There is no evidence of any authority to E. B. Geroulds to make the Eli Day contract; and the proposed additional evidence offered would not be competent evidence of that fact, and therefore is irrelevant. 3d. Because, if that portion of the offer were true in relation to what was done by'E. B. Geroulds under Mr. Clymer,'the evidence already given, and that proposed, does not show any authority in said Geroulds to make or ratify a contract for Bingham lands. And if it did, the offer in relation to the compromise with Nancy Hall could be no settlement of the rights, if any, under the Eli Day contract, as she had no authority to compromise.or settle any question in relation to the same; and the giving a contract to her was a denial of any existing right under the Eli Day contract, and not a ratification of it. And the evidence of Mr. Olymer, already given, shows that he had no knowledge of said Eli Day contract, and without proof of his knowledge there can be no proof of ratification by him. 3d. That it can make no difference who induced Nancy Hall to surrender the Eli Day contract, because, if a valid one, and binding on the Bingham trustees, she had no authority to surrender it; and her doing so, if proved, could not prejudice the plaintiff, or affect the rights of the defendants. And if they claim under the Bingham title, as admitted by plaintiff in this case, they have a good title, unless that title to the land in question had been legally transferred before to some one under whom the plaintiff claims, or by the Eli Day contract, of which there is no evidence. 4th. Because it is wdiolly immaterial, in this case, whether Nicholas Hall left any heirs or not, or that defendants had knowledge of the Eli Day contract, as no title passed by it to any one. The court excluded proof of every fact contained in said offer which was excluded by the former bill of exceptions, and admitted proof of such facts as were not' excluded.. The court also excluded all the latter clause of said offer, included in brackets, proposing to ■ show that the surrender of the Day contract was induced by H. P. Vanness, one of the defendants, by representing to Mrs. Hall that she could be driven off the land if she did not sell; that he induced her to take a new contract and sell to him, for the purpose of cutting off the claims of the heirs of Nicholas Hall; that he bought said lot of her at almost one-third of its value; that at the time of said sale she was not of sound mind ; that he had full knowledge of the existence of the Day contract; and that Nicholas Hall left children surviving him, of whom plaintiff is one; that they were minors. Plaintiff’s counsel admit that Nancy Hall is living. Counsel for plaintiff then proposed (under the opinion of the court, upon plaintiff’s first bill of exceptions, permitting proof of “any part ratification while Eli Day was in possession,” &c., and for the purpose of showing such part ratification), to show that, after said contract with Eli Day was executed in 1832, R. H. Rose was frequently in the township of Rutland, looking after the Bingham lands in said township, settling with persons in possession, giving contracts, &c., until his death in 1842, a period of ten years. That during all that time said Eli Day, or some one holding under him, was in possession of said land. That valuable improvements were made on said land within said period, including the clearing of some thirty to forty acres, building fences, erection of house, barn, &c. Defendants’ counsel objected to the evidence proposed in plaintiff’s fourth written offer, because the same was not relevant or admissible for any purpose under the law, or the former decision of this court. And for the further reason that it would not even show a knowledge by Robert H. Rose of any possession of the land in question, or improvement on the same by Eli Day, or any other person, nor any knowledge by said Rose of any contract or claim for said land, and certainly no recognition or ratification of any contract or claim for the same, of improvements thereon, and would be wholly incompetent to be submitted to the jury in this case for any purpose yet disclosed. The court sustained the objection and rejected the offer. Under the ruling of the court below, there was a verdict and judgment for defendants. This writ was thereupon sued out by the plaintiff, who assigned for error the rejection of the evidence as above stated.
49 Pa. 465Heckman v. Messinger (1865)
Assignment for creditors valid without filing and approval of bond of assignee.— What reservation will avoid assignment. — Assignment for all creditors, private and, partnership, when valid. 1. An assignment for the benefit of creditors passes title to the assignee though his bond is not filed and approved within thirty days from the execution of the deed by the assignors: and it is not, for want of approval, inoperative and void as against subsequent execution-creditors. 2. A reservation by the assignor of the “ benefit of any and all exemp tion laws” will not avoid the assignment. 3. An assignment by partners of all their “ estate real personal and mixed,” including “ separate as well as partnership property,” in trust to pay their creditors, “ in full if there be sufficient to satisfy the same,” and if not, then pro rata, is not void, because the rights of separate and partnership creditors are not expressly defined: for under the Act of 1843, the assignment enures to the benefit of all creditors in proportion to their respective demands. 4. But where the deed recites that the assignors are unable to pay their various creditors, and are desirous of 'distributing their, estate among them according to their several equities, their intention to preserve the distinction between their joint and separate creditors is sufficiently indicated, and the assignment is therefore not void.
49 Pa. 475Horner & McCann v. Hower (1865)
Error to the Common Pleas of Northampton county. This was an issue directed in the court below to ascertain whether a certain judgment in favour of Horner & McCann against Adam Hower had been paid, and if not, what amount was due thereon. The case went to the jury at January Term, A. D. 1864, and verdict was rendered against defendant for $972.12. Upon new trial granted, a verdict was rendered in favour of the defendant, at April Term 1864. In 1859 plaintiffs were commission merchants at Philadelphia, .and defendant was carrying on distilling in Northampton county. On the 6th of August in that year Hower gave plaintiffs .a judgment for $5000, as security for money advanced and to be advanced on consignments of whiskey. This judgment was entered up against real estate. Hower continued his consignments up to 9th September 1859, when he sent William H. Hauser, his clerk, to settle accounts with plaintiffs at Philadelphia. The clerk took with him defendant’s judgment-note for $770, at four months, and met Alfred Horner, one' of the plaintiffs, next day. After striking the balance, it was ascertained that $2800 was due plaintiffs on the judgment, and the clerk gave two drafts on William S’. Smith & Co. at sixty and ninety days for $1000 each; also the judgment-note at four months, with $20 in cash. On the trial it was shown that plaintiffs took the drafts on Smith & Co., and the $20 in cash in part payment. That they took the $770 note, and gave a receipt for it, dated September 10th 1859, which did not purport to be in satisfaction, with an order of same date on Mr. Jones, to satisfy the judgment. Defendant was not present at the settlement, hut the clerk, who acted in the matter for him, returned home to Howersville the next day, where- he delivered the order to defendant. At this time there was but one judgment besides plaintiffs’ entered on record against defendant. Subsequently, and before presenting ■the order to Mr. Jones, defendant confessed a large number of judgments, which were entered on record, and on the 12th of December called on Mr. .Jones to enter satisfaction, presenting the order therefor. Mr. Jones declined doing so, for reason that' the defendant had altered the condition of things as they stood at the date of the order, by confessing judgments to an amount far exceeding the value of his real estate, and beyond what he was worth’. It was not pretended that the $770 balance due on the judgment had been actually paid, nor that the judgment-note for that amount at four months had been paid. The question was whether, under the circumstances, the transaction amounted to payment. The court below (Maynard, P. J.) instructed the jury that if they found, from the evidence, that the single bill for $770 was received by plaintiffs in payment of the balance due upon their $5000 judgment,'their verdict ought to be for the defendant, but if not, then for the plaintiffs. Under these instructions there was a verdict and judgment for defendant. The errors assigned here were, — 1. In rejecting “the record of judgments confessed by defendant between the 10th of September and 12th of December 1859, with evidence of the insufficiency of his real estate to pay them.” , 2. In rejecting plaintiffs’ offer of evidence, “that defendant had confessed thirty-three judgments after the settlement with plaintiffs by Houser, and before the order to satisfy was presented to Mr. Jones, with the proof that defendant’s real and personal estate was far inadequate to pay the judgments so confessed.” 8. In refusing to plaintiffs the “ commencement and conclusion.” 4. In charging “ that the issue was purely one of fact, involving no questions on which the court could give a binding direction,” as no proof of actual payment was offered. 5. In referring the evidence to the jury, without stating that “if the matter was to be consummated as in the point set forth, there was no payment of the original judgment.” 6. In saying there was no actual payment proved by the clerk, nor does the receipt show it, and the “ order” as here to satisfy in itself is no evidence of such “payment.” 7. Also in declining to affirm the plaintiffs’ 8th point, viz., “ that the contract at Philadelphia was part executed and part executory ; so far as the actual payment went, it was executed; as to the balance clue of $770, it was executory, and without any consideration.” 8. In saying “ that the judgment-note at four months, defendant’s delay in presenting the order, and his confessing judgments, did not constitute a waiver on his part, and change the facts from which payment might be inferred.” 9. And in refusing to instruct the jury “ that the defendant not having paid the note at four months for the balance due on the judgment, the plaintiffs were entitled to recover in inis issue.”
49 Pa. 478Commonwealth v. Newcomer (1865)
Upton S. Newcomer was convicted in the court below upon an indictment framed under the provisions of the 114th section of the Revised Penal Code (Pamphlet Laws of 1860, p. 410), which is as follows: “ If any person being a banker, broker, attorney, merchant, or agent, and being intrusted for safe' custody with the property of any other person, shall, with intent to defraud, sell, negotiate, transfer, pledge, or in any manner convert or appropriate to or for his own use, or…
49 Pa. 483Perry v. Lowber (1865)
Certified from the Supreme Court at Nisi Prius. This case was commenced by a bill in equity by Eanny Perry against Henry Lowber, trustee under the will of Richard Bache, deceased, E. Spencer Miller, executor of Sarah Sergeant, deceased, and Thomas Sergeant. The bill set forth the will of Richard Bache, proved in 1811, under which, complainant claimed that at the death of her mother, the said Sarah Sergeant (who was a daughter of Richard Bache), complainant and her brother Thomas Sergeant (who was made one of the defendants), became entitled in equity to one seventh part of her said grandfather’s estate; and prayed that her mother’s executor may be required to replace so much of said one-seventh as Mrs. Sergeant disposed of during her lifetime (viz., twenty-four shares of insurance stock which she sold, applying the proceeds towards the purchase of a house on Clinton street, which by her will she devised to her son, the said Thomas Sergeant), and that he may be restrained from selling or interfering with so much of the said seventh as- remained at the time of her death, but which she assumed to dispose of by her will. The answers admitted the facts set forth in the bill, but denied that complainant or her said brother had any rights under the said will of Richard Bache, but on the contrary averred that the entire interest in the property, real and personal, thereby devised and bequeathed, was vested in the said Sarah Sergeant. The material facts of the case were these:— Mrs. Sarah Sergeant, the mother of the complainant and of the defendant, Thomas Sergeant, and the widow of the late Hon. Thomas Sergeant, was the daughter of Richard Bache, who died in 1811, leaving a will dated January 2d 1810. Mrs. Sergeant was the youngest child of her father, and at the time of his death was about twenty-two years of age. She was unmarried, and did not contemplate marriage. The testator had seven children, one of whom had died in his lifetime, leaving children. By his will he divided his estate into seven equal parts, of which he gave one to the children of his deceased child, one to his son Louis Bache, his heirs and assigns, one to his son Richard Bache, his heirs and assigns, one to his daughter Deborah Duane, her heirs and assigns, one in trust for his son “William Bache and Catharine his wife, and their children,” in manner following, viz., “to them for life, with remainder to their children,” &c., one to his daughter “ Mrs. Harewood and her children, in manner following,” viz., to her for life, with remainder to her children, &c., and the seventh share to be disposed of as follows : “I give, devise, and bequeath unto the said David Lennox, Louis Bache, and Richard Bache, and the survivors and survivor of them, and the heirs and assigns of such survivor, the remaining one seventh part or share of all my estate, real, personal, and mixed; the same being divided as aforesaid, to have and to hold the same unto them, and the survivors and survivor of them, and the heirs and assigns of such survivor for ever, in trust nevertheless for the use and benefit of my daughter Sarah Bache, her heirs and assigns, in manner following: that is to say, to permit my said daughter Sarah Bache .to have and enjoy the rents, issues, profits, income, and interest of the said last-mentioned one full seventh part or share of the premises, for and during her natural life, and after her decease, to convey, transfer, and deliver the said last-mentioned one full seventh part or share of the premises to her children (if she should marry and have children), and the issue of any of her deceased children, to be equally divided among them as tenants in common, and not as joint tenants; but all the issue of a deceased child shall only take the share and proportion to which their parents would have been entitled had he or she survived the said Sarah Bache, and no moré. And if my said daughter Sarah should die without leaving any child or children, or the issue of a deceased child or children, then in trust to convey, transfer, and deliver the said last-mentioned one full seventh part or share of the premises to such person or persons, and for such estate or estates as my said daughter Sarah Bache shall, in and by her last will and testament, direct and appoint. And I do authorize and empower the said trustees to sell and dispose of the real estate included in this last-mentioned trust, and to convert the same into personal estate for the same uses, and to sell and dispose of the personal estate, and to invest the same in real estate for the same uses, from time to time, and as often as the same shall be deemed expedient and beneficial for the purposes of this last-mentioned trust.” The trustees named in the will having died, Mr. Lowber was recently appointed in their place, in order that the rights of the parties respectively might be fully passed upon by the court. The complainant and Thomas Sergeant, one of the defendants, are the only children who survived Mrs. Sergeant — a third child, Henry J. Sergeant, having died unmarried and without issue in the lifetime of his mother. The complainant, as already stated, denied the right of her mother to dispose of the property devised under the will of the said Richard Bache, alleging that she had a mere life estate therein, with remainder to her children, viz., complainant and her brother, and filed her bill accordingly. The question presented by the bill and answer is, “What estate did Sarah Bache take in the seventh of the estate of Richard Bache, devised by him in the manner stated ?” The case was presented in the court below on bill and answers, and his Honour Judge Read, in order that the question might the more readily and conveniently come before the court in bane, suggested that argument before him had better be dispensed with, and a decree, pro forma, entered for complainant, which was accordingly done as follows:— “ And now, this 29th day of December 1864, this cause came on to be heard upon bill and answers, and was argued by .counsel; whereupon, on consideration thereof, the court are of the opinion that Sarah Sergeant, mentioned in the pleadings, was entitled to an estate for her life, and to no other or greater estate in and to the subjects of the trust created under the will of her father, Richard Bache, with remainder in fee simple to the complainant and the said defendant, Thomas Sergeant; and that the complainant and the said defendant are entitled to a conveyance of the legal estate therein from the defendant, Henry S. Lowber, trustee under the said will. Whereupon it is ordered that the defendant, Henry S. Lowber, do forthwith convey to the complainant and the defendant, Thomas Sergeant, and their heirs as tenants in common, the four several lots or pieces of ground referred to in the pleadings as S. B. Nos. 2,10,16, and 27, and that the defendant, E. Spencer Miller, executor of the said Sarah Sergeant, deceased, be perpetually enjoined from selling, or attempting to sell, the said premises under pretence of any power or authority so to' do under the last will and testament of the said Sarah Sergeant, or collecting the rents and profits thereof, or in any manner interfering or intermeddling therewith. • “And as to and concerning the twenty-four shares of stock of the American Eire Insurance Coinpany, sold by the said Sarah Sergeant in her lifetime, the complainant declaring her election to receive the proceeds of sale thereof, with interest thereon from the death of the said Sarah Sergeant, it is ordered that the defendant, E. Spencer Miller, do pay to the complainant, out of the personal estate of his testatrix, a moiety of the sum of two thousand and thirty-seven dollars, together with interest thereon from the 5th day of October 1863, and if the personal estate of the said testatrix shall not be sufficient to pay the said sum, it appearing to the court that of the said proceeds of sale, the sum of $1000 was invested by the said testatrix in the purchase of the said premises, No. 922 Clinton street, which she devised to her son the defendant, Thomas Sergeant, in fee, it is ordered that the said sum of $1000, with interest as aforesaid, or so much thereof as shall be required' to make up the moiety to which the said complainant is so entitled as aforesaid, be and remain a lien and charge on the said last-mentioned premises in her favour, and that the defendant, E. Spencer Miller, do forth■with proceed to sell the said premises for the payment of the said lien and charge. “ And as to and concerning so much of the moiety of the said sum of two thousand and thirty-seven dollars, with interest as aforesaid, as the proceeds of sale of the said premises, after deducting the necessary and proper expenses, shall be insufficient to pay and discharge, it is ordered and decreed that the complainant be entitled to claim and receive the same as a creditor of the estate of the said Sarah Sergeant, deceased. “ And as to and concerning the other moiety of and in the said sum of two thousand and thirty-seven dollars, the defendant, Thomas Sergeant, electing to retain the real estate devised to him by the will of the said Sarah Sergeant, it is thereupon considered that the said defendant is not entitled to claim from the estate of the said testatrix, any sum whatsoever on the footing of this decree. “And it further appearing to the court, since the pleadings in this case were filed, that the balance of the said sum of two thousand and thirty seven dollars remaining after the said investment of $1000 thereof in the purchase of the said premises on Clinton street, was invested in the purchase of the premises at Chelten Hills, called ‘ The Bird’s Nest,’ which were also devised to the said Thomas Sergeant; and that the said last-mentioned premises have been lately sold by him, and the proceeds of such sale received by him, the said defendant, it is thereupon ordered that if this claim of the complainant, as hereinbefore established, shall not be fully paid and satisfied out of the personal estate of the said testatrix, or out of the' proceeds of sale of the said premises on Clinton street, she, the said complainant, shall be and she is hereby declared to be entitled to claim and receive so much as shall so remain unpaid from the proper estate of the defendant, Thomas Sergeant, not exceeding, however, the aggregate of the proceeds of sale of the said premises. “And it is ordered that all the costs in this cause be paid by the defendant, E. Spencer Miller, out of any moneys in his hands as executor of the said testatrix. “ And it is further ordered that any of the parties to this cause be at liberty to apply to the court for further instructions as to carrying this decree into execution, should occasion arise for so doing.” From this decree Mr. Miller, Mrs. Sergeant's executor, took this appeal, averring that the learned judge at Nisi Prius erred in not dismissing the complainant’s bill of complaint, and in making the decree aforesaid.
49 Pa. 494Abbott's v. Reeves (1865)
Rights and dtities of borrower of trust property. — Executor a trustee- in Pennsylvania. — Borrower of trust funds, when amenable to court of equity, and compelled to restore property borrowed. 1. If a trustee commit a breach of trust by loaning the assets to another, the borrower is bound to indemnify the trustee: and if he has the trust property in specie will be obliged by a court of equity to restore it to the trustee from whom it was loaned. 2. An executor in Pennsylvania is emphatically a trustee; all funds of the estate in his hands, are trust funds, and if loaned by him to others with knowledge of the facts, are trust property in the hands of the borrowers, and must be repaid whether properly loaned or not. 3. Thus where a firm borrowed of an executor as part of the estate of his testator, shares of the stock and evidences of the loan of a public corporation, under an express agreement to restore to the executor, or his successor in the trust of executing the will, the assets and securities borrowed, the borrowers are compellable in equity to restore to the executor the loan and stock with the interest and dividends thereon not already received by the executor.
49 Pa. 507Winter v. Newell (1865)
Error to the Common Pleas of Monroe county. This was an action on the case, by James Newell and Daniel Newell against Washington Winter, to recover for timber claimed by them of him under a written agreement, dated May 19th 1858, by which plaintiffs sold to defendant all the hemlock, spruce and pine timber, of a merchantable character, standing or lying on a certain tract of land therein mentioned. The material facts of the case were as follows: — ■ On the 12th day of August 1857, Pratt & Gould conveyed to James and Daniel Newell five hundred and thirty acres of land, in Tobyhanna township, reserving the timber and hemlock bark upon it. On the 18th day of September 1857, Pratt & Gould, by a written agreement, sold to said James and Daniel Newell all of the “spruce and hemlock and other timber” reserved by their deed of 12th'of August 1857. By that agreement the Newells agreed to peel for each and every year thereafter, until the whole was peeled off the land, one hundred andfifty cords of merchantable bark per year, to be measured on the 1st day of October of each year. The Newells agreed to pay to Pratt & Gould for said timber, &c., $500, as follows: $100 on the 1st day of March 1858, and the balance by bark peeled on the land at $1.25 per cord. The agreement further provided that “ after the purchase-money shall have been fully paid, the residue of the bark shall be measured and paid for at the rate of $1.25 per cord by Gould & Pratt.” This agreement contained a reservation of the bark until the purchase-money should be entirely paid. It was not recorded. On the 23d day of September Pratt & Gould made another agreement with the Newells, by which they sold to them “ all of the hemlock, spruce, pine, and chestnut timber upon a certain tract of land warranted in the name of Charles Stewart,” with the privilege of chopping and taking off the spruce, pine, and chestnut timber at any time. “ The hemlock timber to be left standing until the fulfilment of the contract between the parties of September 18th 1857.” After which the Newells agreed to cut a sufficient amount of the hemlock timber to make about two to four hundred cords of bark per year. The Newells agreed to pay for said timber $300 on the 1st day of April 1858, with interest, and $460 with interest on the 1st day of April 1859, and $460 on the 1st pay of April 1860, with interest, making in all $1220. This contract was not recorded. There was a receipt upon the back of it for $380, being the down-money on the Charles Stewart tract. On the 19th day of May 1858, after the first payment to be made by Newells to Pratt & Gould had become due, the Newells made a contract with Washington Winter, by which they sold to him “ all the hemlock, spruce, and pine timber” on the Charles Stewart tract, for the consideration of “ one dollar for each and every thousand feet.” Winter agreed to take off about one million of feet each year, and to pay for* the same when delivered in the Lehigh river, or not exceeding thirty days thereafter. , He was to have the bark upon said timber or logs “free of charge,” and he agreed to sell the bark to “ Pratt & Gould” piled and measured in the woods for $1.25 cents per cord. On the trial, the agreement of May 19th 1858 was given in evidence by the plaintiff, and it being admitted that the defendants had cut and got into the river in the summer of 1860 and 1861 twelve hundred and forty thousand feet of timber off the Stewart tract measured in the logs, and that the money for said lumber, under said agreement, would have been due June 10th 1861, so far as due, the plaintiff rested. The defence was, that the agreement of May 19th 1858, above mentioned, was indirectly controlled by two other contracts in writing of prior date, between the Messrs. Newell and the late firm of Pratt & Gould, and also by a deed from Pratt & Gould to them, and that Winter had an equitable defence in the nature of set-off for four hundred and sixty-five cords and forty-eight feet of bark, at $1.25 per cord, against plaintiff’s claim for timber under said first-mentioned contract. In support of this defence, he offered in evidence an agreement of September 18th 1857, deed of August 11th 1857, from Zadock Pratt et al., to the Messrs. Newell, for same land; agreement of September 23d 1857, with receipt as above mentioned; an order produced by plaintiff, on notice, from James and Daniel Newell on Pratt & Gould, May 16th 1860, in favour of Washington Winter, for all bark peeled and piled on the Charles Stewart tract in 1859 ; proved also, and gave in evidence a receipt from James Newell and Daniel Newell for $700, “on account of lumber from the Charles Stewart tract for 1859-60.” He also proved that on the 20th of September 1860 plaintiffs and defendant met at the house of Washington Winter, and settled for the timber taken under the contract in the summer of 1859, and winter of 1859 and 1860, and put in the Lehigh in the spring of 1860. At which time plaintiffs gave to defendant a receipt for $700; and in that settlement plaintiffs allowed defendant for four hundred and seventy-three cords of bark, peeled and piled by him on the Stewart tract, in 1859, at $1.25 per cord, and which was deducted from the amount due plaintiff for the lumber, and the balance paid in cash, and at the same time defendants gave up to plaintiffs the order of 16th May 1860, and a bill showing the number of cords peeled in 1859. He also proved and gave in evidence a book kept by a clerk of Pratt & Gould, who had measured bark peeled by Winter on this same tract. Defendant then offered in evidence a certified copy of the record of the proceedings in equity in the Common Pleas of Luzerne county, in the case of David W. Lee, complainant, v. Jay Gould and William M. Evarts, executor of Charles M. Leupp, deceased, and J. Allen Dubois, defendants, viz., that part of the report of the master in chancery, which related to the claims made by the Newells before the master in chancery, on notice by him to creditors to appear and present their claims. To the admission of which the plaintiffs by their counsel objected, on the ground that the report of the master in a case between other parties was not competent evidence of the fact; and the court sustained the objection and rejected the evidence. Thereupon the defendant again offered in evidence said certified copy of the record of the proceedings in equity in the Common Pleas of Luzerne county, with the addition that he proposed to show by the report of the master in chancery, that the plaintiffs (the Newells) claimed and were allowed in that report for the bark (now) in dispute; to be followed by other evidence of the fact that the firm of Pratt & Gould had been dissolved, and that the business was carried on by Jay Gould, and to be followed by parol evidence that the plaintiffs (the Newells) did claim for the bark in dispute, before the- master in chancery, and that the master in chancery is now in South Carolina and without the jurisdiction of this court. To the admission of which the plaintiffs by their counsel objected, and the court sustained the objection as to the report of the master, and rejected that portion of the defendant’s offer embracing the report of the master in chancery. The defendant again offered in evidence said certified copy of record, for the special purpose of showing that Henry M. Hoyt, Esq., was appointed a master in chancery in that case, to be followed by evidence that he acted as such, and that while acting in that capacity the plaintiffs presented their claim for the bark in dispute. To the admission of which the plaintiffs by their counsel objected, but the court overruled the objection and admitted the evidence. The defendant then gave in evidence a certified copy of the record of the proceeding in equity in the Common Pleas of Luzerne county, in the case of David W. Lee, complainant, v. Jay Gould, and William M. Evarts, executor, &e., of Charles M. Leupp, deceased, and J. Allen Dubois, defendants, for the purpose of showing the appointment of Henry M. Hoyt, Esq., as master in chancery in said case. After some other evidence relative to the presenting of claims before the master in chancery was received without objection, the defendant proved and offered in evidence the bank-book, kept by a clerk of Pratt & Gould, and Jay Gould, which was objected to and rejected by the court. This book contained the account of D. & J. Newell and Washington Winter, and showed a credit to Winter for Newell’s order, as also a credit to D. & J. Newell for four hundred and seventy-three cords of wood. The same entries in the day-book and ledger were also offered, but both were objected to and rejected by the court below. It was then admitted that the firm of Pratt & Gould was dissolved by Pratt selling out to Gould, January 24th 1859, and that afterwards on 28th of January 1859, Jay Gould conveyed to Charles M. Leupp and David W. Lee, each, one-third interest in the Gouldsborough tannery — being a conveyance of one-third interest each in the real and personal property including barb contracts. And that the business was continued and carried on in the name of Jay Gould, until the spring of 1860; and that afterwards the business was conducted for a while under the receiver to finish the work and settle up the business. And thereupon the defendant rested. The following paper, which was produced by defendant, on notice, was then offered, to wit:— Gouldsboro’, December 3d 1860. Account of bark peeled on Charles Stewart tract in 1860. W. Winters, • 290 108 Cords, do. (by Wildrich), 174 68 “ In all 465 48 And admitted under exception. And thereupon the plaintiffs offered in evidence the notes of testimony of J. Allen Dubois, taken in this case when it was tried before arbitrators on the 21st of November 1861, sworn to by Mr. Drehr, counsel (the witness being now dead, and having then been called and examined by the defendant). To the admission of which defendant by his counsel objected; but the court overruled the objection and admitted the evidence. The plaintiffs also offered in evidence a note dated June 28th 1859, D. & J. Newell to Jay Gould, at ninety days, payable at Stroudsburg Bank, for $515.82. And a receipt dated June 28th 1859, Jay Gould to Daniel and James Newell for the note, being in full when paid for payment of $460, payable on April 1st 1852, and interest, being the payment on contract for the sale of timber on the Charles Stewart. Also, paper showing calculation of interest on the payment; to the admission of which note, receipt and bill, or paper, the defendant by his counsel objected; but the court overruled the objection and admitted the papers. Subsequently the plaintiffs offered to prove the value of the hemlock bark, piled up, per cord, on the Stewart tract in 1860; to the admission of which the defendant by his counsel objected, but the court overruled the objection and admitted the evidence. The court below (Barrett, P. J.), after stating the main facts of the case, charged the jury as follows :— “ In view of all the light thrown upon this contract by the evidence in the case, it must be construed, as it was doubtless intended by the parties, to contain a ‘reservation of the hemlock bark’ on the conditions contained in it. Pratt & Gould were carrying on a tannery in the neighbourhood, and their object seemed to be to secure the bark for their tannery as they should require it. Hence, the stipulation that it should not be peeled until they should have realized the product of their previous contract with the same parties for the five hundred and thirty acres; and the further stipulation that the hemlock timber should only be cut in the peeling season. The timber was sold absolutely, but the bark was to be peeled, piled, measured, and paid for at the rate of $1.25 per cord in the woods, and taken by Pratt & Gould — of course they were only to receive it on paying for it. Unlike the former contract, there is no stipulation by which the purchase-money is to be received in bark. Indeed that idea is to some extent negatived by the fact that the whole consideration-money was made payable in yearly instalments within two and a half years, and the purchasers restricted from cutting the hemlock timber for an indefinite period. On the land conveyed, and under the former contract, Newells were only bound to peel one hundred and fifty cords per year, and by the subsequent agreement were not to peel any on the Stewart tract until they had peeled all on the five hundred and thirty acres. “ The fair construction of the agreement itself is that the payments were to be made by Newells for the timber, and Pratt & Gould for the bark, in cash. Standing in this condition in relation to this contract, Daniel and James Newell made the contract with Washington Winter upon which the suit is brought. “It is urged that Newells had no right under their contract to cut the hemlock timber. It must not be forgotten that they had the right by their contract with Pratt & Gould, after giving them notice on the 1st day of April in any year, to peel from two to four hundred cords. Winter wrent upon the tract in 1858, and peeled a quantity of bark. In 1859, he again cut and peeled a large quantity, and did the same in 1860. Pratt & Gould or their successors received and paid for the bark peeled in 1858 and 1859 without objection on their part. Indeed there is not in this entire case evidence of any objection being made by Pratt & Gould at any time to the terms of the contract with Winter. Did they not acquiesce in it by their acts? Can this defendant now avail himself of such defence-against the payment for the timber which he has taken, when he has not been disturbed by the only parties who could complain ? We think not. The Newells made the contract, and from the acts of Pratt & Gould it must be inferred that they acquiesced in it. This brings us to the construction of the contract itself between the Newells and Winter. The business for the years 1858 and 1859 was settled. The defendant took from the tract of land in 1860 and delivered in the Lehigh river, on or before the 10th of May 1861, twelve hundred and forty thousand feet of timber, and he peeled from it and piled in the woods four hundred and, sixty-five cords and forty-eight feet of bark. About the amount of lumber there is no dispute. The quantity and time of delivery is admitted, and the defendant expresses his willingness to pay for it at the contract price. But the defendant claims that under the contract the Newells are bound to take the bark from him in the -woods at $1.25 per cord, and insists upon a credit for that amount. If that question depended alone upon the wnitten contract, it would be for the court to decide, and we would have no hesitation in ruling it against the defendant. The covenants in the agreement are mutual and dependent covenants, and it is to be construed as a whole. The plaintiffs sold the ‘ timber and bark.’ The defendant agreed to pay for it, $1 per thousand feet, and to sell the bark to Pratt & Gould for $1.25 per cord. .The fair construction of the agreement is that Winter agreed to offer the bark to Pratt & Gould at the stipulated price. “Newells doubtless made this covenant with him in view of their contract with Pratt & Gould. But this contract did not oblige Winter to sell to Pratt & Gould without either receiving or being secured for his pay. He had a right to demand the cash, as we have shown 'you that the Newells might have done under their contract before delivering the bark. A refusal to pay would have relieved Winter, and he would have been justified in selling the bark elsewhere. The contract was not that the bark should be delivered on account of the Newells, but that Winter might sell it. Suppose he had sold to Pratt & Gould on a long credit, and they had failed to pay, could he have called on Newells to indemnify him for the loss ? This will not be pretended. “ Winter -was not bound by the contract to peel the bark. It was left to his option. Suppose he had taken the logs away unpeeled, could Newells have complained? Certainly not. Could Pratt & Gould have followed him, or would they have been turned over to their personal contract with the Newells? Their remedy would have been against the Newells for the loss sustained in not receiving the bark at the stipulated price. Under any fair construction of the written contract the Newells were not bound to receive the bark, and if there were no parol evidence affecting the question, the court would give to the jury binding instructions to that effect. “ Have the parties done anything since to warrant a different construction of the agreement, or to change its terms in reference to the bark ? This is a question of fact under the evidence for the jury. Contracts have frequently to be construed by the intentions of the parties manifested by their subsequent acts and declarations, and where that is the case it becomes to a grea.t extent the province of the jury. “ There is evidence that the Newells did settle for the bark for two years. This of itself would not change the contract. It may shed some light upon the understanding of the parties in relation to it. If it was a subsequent arrangement by which they agreed to receive in that way so much of their pay, then it should not in any manner affect the original agreement. And if you believe the evidence, that it was done under protest, and with notice that they would not again do so, it would seem to explain to some extent why they did it. The evidence in relation to the act of the Newells in claiming pay for the bark from Pratt & Gould is also for the jury. Taking all of the evidence together, does it satisfy the jury either that Newells originally agreed to take the bark, or that they did so by any subsequent arrangement with Winter ? It is a well-settled principle of law, that to alter or change the terms of a written contract the evidence must be clear and conclusive. “ If under the evidence the jury are satisfied that the Newells did agree with Winter to receive the bark peeled and piled in 1860, then they will deduct from the sum of $1240, the value of the bark piled in the woods, and render a verdict for the plaintiff for the balance with interest from the 10th day of June 1861. “If, on the contrary, they are not satisfied that Newells agreed to receive the bark, but believe from the. evidence that Winter was to sell the bark at his own risk, then verdict should be for the plaintiff for $1240, with interest from the 10th of June 1861.” Under these instructions there was a verdict and judgment in favour of the plaintiffs for $1430.13. This writ was .thereupon sued out by defendant, who assigned for error- the rejection of the record and report of the master in chancery as above stated, the rejection of the bark-book of the Gouldsboro’ tannery, and the ledger and day-book of James Gould, showing the amount of bark peeled and credited. The admission of the notes of testimony of J. Allen Dubois, as taken by counsel before arbitrators, the admission of the paper containing the bark account, dated December 3d 1860, the admission of evidence of the value of the bark peeled and piled on the Stewart tract in 1860, and so much of the charge of the court as treated the contracts of the 18th and 23d of September, between Pratt & Gould and defendants, as an absolute sale of the hemlock timber upon the Stewart tract, including the bark, and that defendants had the right to sell both absolutely to the plaintiff in error; that plaintiff had a right to demand cash for the bark from Pratt & Gould, and on refusal of payment, the right to sell it elsewhere; that Pratt & Gould could not have followed the bark had it been sold. Also generally in submitting to the jury that defendants in error had a right to make an absolute sale of the hemlock timber to plaintiff, without proof of notice given to Pratt & Gould of defendants’ intention to peel, as required by the eontra.ct of the 23d of September; nor any proof that the contract of the 18th of September' previous had been fulfilled. That the court also erred in the leading idea held out to the jury, that under the contracts with Pratt & Gould, defendants’ had a right to sell hemlock bark upon the Stewart tract, there being no evidence in the case, either written or otherwise, that Pratt &• Gould, the owners of the land, had parted with the right of property therein; in submitting facts to the jury of which there was no evidence in the cause; in their construction of the contracts of the 18th and 23d of September respectively, as to right of property in the hemlock bark retained by Pratt & Gould; in charging that “ the fair construction of the agreement itself is, that the payments were to be made by the Newells for the timber, and Pratt & Gould for the bark in cashand in saying to the jury that “ the Newells made the contract, and from the acts of Pratt & Gould it must be inferred that they acquiesced in it.”
49 Pa. 518Burke v. Gummey (1864)
 Liability of vendee of land purchased subject to mortgage. A vendee of property taken expressly subject to a mortgage makes the debt his own; and if, on sale upon the mortgage, there is a deficiency which the vendor is obliged to pay on his bond, he may recover in an action against the vendee.
49 Pa. 519McKeen v. County of Northampton (1865)
 Capital stoc/c in extra-state corporations, taxable for state and county purposes. 1. The taxing power rests upon the reciprocal duties of protection and support between the state and the citizen, and the exclusive sovereignty and jurisdiction of the state over the persons and property within its territory. 2. Every citizen of the state, and all the property accompanying his person or falling legitimately within the territorial limits, is subject to this power. 3. The interest which a stockholder has in the stock of a corporation is personal, and is controlled by the law of his domicil. 4. Capital stock, owned by a citizen of Pennsylvania, in a manufacturing corporation located in another state, is taxable for state and county purposes.
49 Pa. 526Whitesell v. County of Northampton (1865)
Error to the Common Pleas of Northampton county. This was an amicable action between The County of Northampton, as plaintiffs, and Daniel Whitesell, as defendant, in which the following case was stated for the opinion of the court: The Thomas Iron Company was incorporated by an Act of the legislature of this state, entitled “An act to incorporate the Thomas Iron Company, approved April 4th 1854, and supplements approved March 8th 1855, April 23d 1855, April 22d 1857, March 23d 1860, and February 9th 1863,” which acts are to be taken as parts of this case. That the capital stock of this company amounts to $750,000, divided into shares of $50 each; that the said company was incorporated, as stated in the said Act of April 4th 1854, “for'the purpose of manufacturing iron in Lehigh county, under the name and style of The Thomas Iron Companythat the said capital stock is invested in four blast furnaces, about forty dwelling-houses, a farm, iron-ore mines, and other property in the said county of Lehigh, which have cost the company over $800,000. On all this property the company is assessed and taxed in the said county of Lehigh, for state, county, school, road, and other local taxes, which they have regularly paid. The said company also own ore-mines in the state of New Jersey, which are assessed there, and upon which the company pay taxes there, as are imposed upon other real estate. The said company are engaged in said county of Lehigh in the making and manufacturing of iron under the provisions of the said acts of incorporation, and all the lands, buildings, and property above stated, and belonging to said company, are held and used by the said company only and wholly for the making and manufacturing of iron under their acts of incorporation aforesaid. Besides and in addition to the above taxes, the said company pay annually to the state treasurer for the state, a state tax of one half a mill on each 1 per cent, of their dividends as required by law. The amount of this tax paid in by said company to the state, for the year 1863, was $3375. The defendant is the owner of two hundred shares of the capital stock of said company. He resides in the borough of Easton, in the county of Northampton. The assessor for Bush-kill ward in said borough has assessed and returned this stock as liable and subject to taxation for state and county purposes, and defendant has appealed from this assessment to the county commissioners. If the court should be of opinion, upon these facts, that the said stock is liable to taxation for state and county taxes or either, then judgment to he entered for the plaintiff for the amount of the taxes for which said stock is liable, according to the assessment, with costs. The amount assessed for state taxes is $30,’ and the amount for county taxes $60. If the court should be of opinion that the said stock is not liable to taxation by the said county commissioners for state or county taxes, then judgment to be entered for defendant with costs; either party to be entitled to a writ of error. On hearing the case the court below (Maynard, P. J.) delivered the following opinion :— “ This case was argued in connection with the case of The County of Northampton against James McKeen, when the same questions were substantially raised. In the latter case I have filed an opinion at some length, to which I refer for the reasons for entering the judgment in favour of the plaintiff in this case. “ To sustain the ruling in this ease I refer to the 32d section of the Act of 29th April 1844, Purd. 949, the 33d section of the same act, the 1st section of the Act of 12th April 1859, Purd. 951. “It is evident to my mind, from these enactments, that the ■ corporation, as an artificial person, is taxable, and that the stockholders are also taxable personally for the shares of stock individually held by them. “ Eor the duty of the assessors I refer to the 3d section of the Act of 22d April 1846, Purd. 952. “ I also refer to my opinion filed in the ease of The County of Northampton v. Charles Rodenbaugh, No. 19, November Term 1863, a case not unlike this, and ruled by the same principles of law. “ A careful examination of our tax law, and the decisions of our Supreme Court, referred to and* cited in the last-mentioned case, brings my mind to the conclusion that the plaintiff in this case is entitled to recover, although I am free to admit that, in my judgment, it is onerous and unreasonable taxation. But the remedy is with the legislature, not with the judiciary.” The opinion alluded to in Rodenbaugh’s case was as follows: “ The 32d section of the Act of 29th April 1844, Purd. 949, enumerates the subjects of taxation, and directs that they shall be valued and assessed, and subject to taxation for the purposes in the act mentioned, and for all state and county purposes whatsoever. “ Among the subjects of taxation enumerated in this act, are all shares of stock in any bank, -institution, or company now or hereafter incorporated by or in pursuance of any law of the Commonwealth, &c. (By subsequent Acts of Assembly shares of bank stock are exempted from taxation for county purposes.) “ By the 33d section of the same act, and the 1st section of t^e Act of 12th April 1859, Purd. 951, incorporated institutions and companies are made taxable, and a mode is provided in which the tax on the capital stock of the incorporated institutions and companies mentioned in these acts shall be collected from such institution or corporation. “ The 33d section of the act says: ‘ The amount of the tax chargeable on the capital stock of all institutions and companies incorporated,’ &c., and the 1st section of the Act of 1859 says: ‘The capital stock of the institutions and companies incorporated shall be subjected and pay a tax,’ &c. It is evident to my mind, from the phraseology of these acts, that the corporation or artificial person is taxable by these enactments in contradistinction from the ‘taxable inhabitants’ mentioned in other sections of the tax law, “The 32d section, as we have seen, makes ‘all shares of stock in any institution or company’ taxable. “ The 34th section of the same act makes it the duty of the county commissioners to assess, for the use of the Commonwealth, taxes on certain articles enumerated in that section, ‘ and upon all other property heretofore made taxable for state purposes, or that are made so by the 32d section of this act, three mills on every dollar of the value thereof.’ “The 3d section of the Act of 22d April 1846, Purd. 951, prescribes the duties of assessors, inter alia, as follows: ‘ That it shall hereafter be the duty of each assessor, within this Commonwealth, at the time of making the assessment in his ward, borough, or township, to require of every person, &c., a statement in writing, or partly printed and partly written, showing the aggregate amount of moneys due to such person,’ &c., and also the amount of all shares or stocks held or owned by such person, company, firm, or corporate body in any (bank) institution or company, &c. I think it is clear from these enactments, that the legislature intended to tax the entire’ capital stock of these institutions as a corporation; and that the legislature also intended to subject the shareholders of the same stock to a tax of three mills on every dollar of the assessed value of the stock so held by them. “ This construction of these statutes seems to be fully supported by the opinion of the Supreme Court in the case of The Philadelphia Savings Fund Society v. Yard, 9 Barr 350. In the case of Carbon Iron Company v. Carbon County, 3 Wright 251, it was held that the tax for state purposes, payable at the Auditor-General’s office, is' a tax for the value of the corporate franchise, and is not intended as an exemption from ordinary taxation. Per Lowrie, C. J. “ It is urged by counsel that this is a case of double taxation. Substantially it is so. Our tax-laws, like all other tax-laws, are arbitrary. The power of the legislature to tax cannot be denied, ■ and our Supreme Court have said, in the case of The West Chester Gas Company v. The County of Chester, 6 Casey 232, ‘ Double taxation is not uncommon; the power of the legislature to tax twice is as ample as to tax once.’ ” Judgment was accordingly entered in the principal case, on the case stated in favour of plaintiff, for ninety dollars and costs. Which was the error assigned.
49 Pa. 530Commonwealth ex rel. Vandyke v. Henry (1865)
Error to the Supreme Court of Philadelphia. This was a proceeding in the Supremo Court in banc, founded on the petition of Richard Yandyke and Mark Wadleigh, praying for a mandamus to Alexander Henry, Mayor of Philadelphia, commanding him to execute and deliver a certain lease which petitioners claimed to have made with the councils. The petitioners set forth that by a resolution of the Select and Common Councils of the city of Philadelphia, approved by the mayor, on the 26th day of December 1861, it was resolved that the Mayor of Philadelphia be authorized to execute a lease with James C. Conner, or such other persons as may be accepted from time to time by the superintendent of the Girard estates, under the supervision of the committee on Girard estates of the coal lands in Schuylkill county, vested in the city of Philadelphia., by the last will of Stephen Girard, in the form prepared by the city solicitor, and approved by the committee on Girard estates, and reported to councils December 5th, a. d. 1861, and which is hereby made part of this resolution, to wit: [Then followed the form of the lease, with a proferí of the resolution.] That on the 13th day of August 1863, they presented an application in writing to Franklin B. Kaercher, who was then the agent of the estates situated in Schuylkill county, in the state of Pennsylvania, belonging to the city of Philadelphia, trustee under the will of Stephen Girard, deceased, for a lease of certain tracts of coal lands in Mahanoy township, in Schuylkill county, and a copy of the application was annexed. That at a meeting of the committee of the Select and Common Councils of Philadelphia, on the Girard estates, held on the 11th day of September 1863, the said Franklin B. Kaercher, agent as aforesaid, notified the committee of the application of petitioners, which was referred to a sub-special committee to report upon the same; and at a meeting of the general committee, the special committee reported in favour of leasing to petitioners the tracts embracing Kehley’s Run, east and west; whereupon the following resolution was adopted by the general committee:— “Resolved, That a lease be granted to Messrs. Vandyke and Wadleigh for the south dipping veins on the James McNeill, Jeremiah Jackson, and William Steadman tracts in Mahanoy township, embracing Kehley’s Run, east and west, in conformity with the form of lease, adopted by city councils.” That on the 28th day of September 1863, Francis McCormick, the general agent of the city of Philadelphia for the Girard estates, notified petitioners of the action of the committee on Girard estates, as hereinbefore set forth, stating in the said notice that as soon as he could get a survey of the colliery, he would notify petitioners, so that they and the city could have the same executed. That a survey was made of the premises mentioned in the resolution of the committee, and a lease prepared by the said agent, and approved by the city solicitor, in the form required by the said resolution of councils, demising to petitioners the coal lands hereinbefore described, and a certain map and papers were annexed to the said lease. That the lease wTas dated the 15th day of November 1863, and on that day they executed the same in duplicate, in which they agreed and covenanted to be lessees of the city of Philadelphia, trustee under the will of Stephen Girard, deceased, lessor, and faithfully to observe all the agreements, stipulations, and covenants therein contained, in consideration of the mining rights thereby leased to petitioners. That the said lease, executed in duplicate by petitioners, was then presented to the Honourable Alexander Henry, who was then and is now Mayor of the city of Philadelphia, to be executed by him as mayor of the said city, and for him to cause the seal of the said city to be attached thereto; but that he refused to execute the same as mayor, or cause the seal of the said city to be attached thereto. That on the 16th day of February 1865 they, by their attorney, made another and formal demand upon the said Alexander Henry, to execute the said lease as Mayor of Philadelphia, but he has neglected and refused to comply with such demand, and that by reason of such refusal petitioners have suffered great damages, for which they have no specific legal remedy. Followed by a prayer for a mandamus in the usual form. On this petition an alternative mandamus was awarded, to which the following return was made by the respondent:— That he is advised, and so suggests, that the said relators are not, upon the matters alleged in their said petition, entitled to their said writ of mandamus, for the following reasons: 1. That he is by the ordinance referred to in said petition vested with discretion to withhold his signature from the lease in said petition mentioned; and 2. That for all the matters in said petition alleged, the said relators, if entitled to any relief, have a full, clear, and adequate remedy at law. And reserving all right to these objections for return to said writ, he answers:— “ That the committee on Girard estates, by whom it is alleged in said petition that said lease was awarded, is only the creature of the councils of said city of Philadelphia, by whom said committee is established, and the members thereof appointed. And by the provisions of the 50th section of the Act of February 2yi 1854, it is declared, that no member of councils, whether as a committee or otherwise, shall ‘make any disbursements of corporate moneys, nor audit the accounts thereof, nor perform any other executive duties whatever.’ That after the attempted award by said committee of the said lease to said petitioners, it was repreto the Select Council of said city, on the 1st day of October 1863, that the said relators were not persons of sufficient ability to fulfil the conditions of the said proposed lease, and that improper influences had been used in obtaining the award of said’ lease, and a resolution having been offered thereon, requesting respondent to withhold his signature from said proposed lease,. said resolution was on said last-mentioned day referred to a special committee of five members with power to send for persons and papers, and said committee having investigated the matters thus referred to them, reported an ordinance by the terms of which this respondent was forbidden to execute said proposed lease. And respondent attaches as part of this return a copy of said report. And respondent for further return to said writ upon information and belief saith, that the award of said lease to said relators, as in said petition set forth, was a fraud upon the city of Philadelphia, in this: 1st. That there were other bidders for said lease known to the said committee before the award thereof, at prices higher and upon terms more advantageous to the city than those offered by said relators and accepted by said committee, notwithstanding which the said committee undertook to award said lease to said relators in disregard and violation of their duty and of the interests of the city. “That one of the said relators, the said Richard Vandyke, offered the agent of the city $1000, to obtain for them the lease of the Kepley Run tract, with' the full assent thereto of the said Mark Wadleigh the other of said relators.” To this answer the complainants by their counsel demurred, and the case was heard by the court in banc.