text:
    McCredy’s Appeal.
    1. Under the Act of February 25th 1853 (authorizing the court to discharge land from liens), an appeal to the Supreme Court lies only when the decree is for the petitioner. •
    2. What is granted to a petitioner under the Act of 1853 is pure grace; he must make out a very clear case.
    3. The refusal to grant the petition impinges on no legal rights of the petitioner, and he has no appeal.

      March 17th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Appeal from the decree of the Orphans’ Court of Philadelphia: No. 127, to July Term 1869.
    In October 1865, Dolores E. McCredy and others, executors, &c., of the will of Thomas McCredy, deceased, petitioned the Orphans’ Court of Philadelphia, setting forth, that Bernard Mc-Credy was seised of two pieces of real estate, one in Rockdale, Delaware county, the other in Norristown, Montgomery county; that by his will he gave to his daughter, Emeline M. Ewing, the sum of $2000 annually during her life, and charged upon his Delaware county property the sum of $38,333, in order to raise the annuity ; the principal to go to her children at her death. He made a like provision, charged in the same manner, for another daughter and her children. He gave all the residue of his estate, after the payment of his debts, and securing the payment of the annuities to his daughters and the principal to their children, to his son, Thomas McCredy. These legacies were decided by the Supreme Court to be a lien upon all the real estate of which Bernard McCredy died seised. Thomas McCredy afterwards died, having made his will, by which he gave his executors authority to sell his real estate. By virtue of that authority the executors sold the real estate in Norristown, out of the proceeds of which they paid the legacy to the children of one of the daughters who was dead. After setting out other facts, not necessary to notice here, the petitioners prayed the court to decree, under the 1st section of the Act of February 23d 1853, that the Norristown property be discharged from the lien of the legacy to Mrs. Ewing and her children.
    The court referred the matter to George Junkin, Esq., as auditor, who recommended a decree as prayed for. The report was set aside by the Orphans’ Court (Ludlow, J.) and the decree prayed for refused.
    The Act of 1853, Pamph. L. 98, Purd. 304, pl. 195, is as follows:—
    “ Whenever any testator shall have heretofore by his last will and testament, duly proven, given or bequeathed any annuity or annuities to any person or persons, or directed the payment of an annuity or annuities by his executors or trustees or bequeathed legacies of principal sums, payable at a future period, or upon contingencies, or under other circumstances by which the payment or discharge and satisfaction of such legacies may be postponed or may not take place until a distant period after the death of such testator, and either by the express words of the will or by the rules of law, in the construction thereof such annuities or legacies are made or become a charge upon all the residuary estate of' the testator, and whenever any testator shall hereafter make any such bequest and provisions, in any such case it shall be lawful for the executors of any such will or for any such annuitant or legatee, or for any person interested in such residuary estate, at any time after the expiration of one year from the granting of letters testamentary, to apply by petition to the Orphans’ Court having jurisdiction of the accounts of such executors, setting forth the facts and praying relief, whereupon the court may order a citation to be issued to the parties interested, to appear on a day certain, to show cause why the relief prayed for should not be granted, and upon the return of such citation if all the annuitants, legatees and other persons interested, shall have had due notice of the application,-the court may refer the case to an auditor, with directions to inquire into the circumstances, and to report upon the amount and condition of the estate, and upon the expediency and propriety of exempting any part or portion of the residuary real estate, from the lien and charge of such annuities and legacies, or of either of them, having due regard to the absolute and ultimate security of such annuities and legacies, and upon such report being made, and due notice thereof having been given to all persons interested, it shall be lawful for the court to make a decree in the premises, and if it shall appear that all the debts of the testator have been paid or sufficiently secured, the court may order and decree that such part or parts of the residuary real estate, or such real securities or investments in public stocks, shall be set apart or appropriated, as in the judgment of the court, shall appear to be and with reasonable probability continue to be adequate and sufficient beyond all charges, expenses and deductions for the payment of such annuities and legacies, providing always a sufficient surplus to meet any contingency, diminution or depreciation in the value or income of the estate, and securities so set apart, and when such decree shall have been made, it shall be further lawful for the court to order and decree, that all the remaining residuary real estate of the testator, not so specifically set apart, shall be and remain discharged and exonerated from the lien and charge of any and every such annuity and legacy, in the hands of any bond fide purchaser of such real estate for a valuable consideration, and such decree shall have the force and effect of discharging and exonerating all such real estate accordingly, unless an appeal be taken from such decree to the Supreme Court, within one year after entering the same.”
    The executors of Thomas McCredy appealed, and assigned, for error the setting aside the auditor’s report, and refusing to grant the prayer of the.petition.
    <7. Cfuillou and A. V. Parsons, for appellants.

      P. McCall, for the appellees, Mrs. Ewing and her children;

      March 21st 1870,
   The opinion of the court was delivered,

by Sharswood, J.

— If the Act of February 23d 1853, Pamph. L. 98, contained no provision for an appeal, the 59th section of the Revised Act of March 29th 1832, “relating to Orphans’ Courts,” Pamph. L. 213, would have been applicable in all probability. It provides generally that “ any person aggrieved by a definitive sentence or decree of the Orphans’ Court, may appeal from the same to the Supreme Court.” I speak doubtfully on this point, because there would be some reasons, from the nature and subject-matter of the proceeding authorized by the Act of 1853, for holding that the power given to that court was meant to be discretionary. The legislature have, however, specially confined the appeal to the case of a decree in favor of the petitioner. The words are very plain. After enacting that the court may order and decree that certain parts of the residuary estate of the testatator shall be set apart, and that all the remaining residuary real estate shall be exonerated from the lien and charge of the legacy and annuity in question, it declares that “ such decree shall have the force and effect of discharging and exonerating all such real estate accordingly, unless an appeal be taken from such decree to the Supreme Court within one year after entering of the same.” The appeal is here expressly confined to such decree as is before spoken of, and which is to have the effect of discharging the land from the lien unless the appeal be taken. It is clear that the appellant cannot stand on this provision. If he recurs to the Act of 1832 there would be this gross incongruity. One party would have three years in which to appeal — and the other but one. There are good reasons for confining the appeal to the single case of a decree in favor of the petitioner. The annuitants or legatees have a clear legal and vested right to their lien in its full extent. What is granted to the residuary devisee or his assigns is a pure matter of grace or favor. He must make out a very clear case. The auditor to whom the case is to be referred is to report upon the expediency of the exoneration prayed for “having due regard to the absolute and ultimate security” of the annuities and legacies ; and the court are to make the decree only when what remains “shall appear to be and with reasonable probability to continue to be, adequate and sufficient beyond all charges, expenses and deductions for the payment of such annuities and legacies, providing always a sufficient surplus to meet any contingent diminution or depreciation in the value or income of the estate and securities so set apart.” Here a very large discretion is conferred upon the court, which the legislature meant should be reviewed when exercised, because it then impinges upon the legal rights of the legatees and annuitants, by diminishing certainly their security. But the refusal of the court to exercise their discretion as prayed for impinges upon no legal rights of the petitioner. Such a refusal cannot properly, and ought not to he the subject of review. On the other hand it is essential to protect the legal rights of the legatee or annuitant that a decree of exoneration should be re-examined. Gross injustice might otherwise be done, without any means of redress.

Appeal quashed at the costs of the appellant.


source: Caselaw Access Project

author: by Sharswood, J.

license: Public Domain

text:
    Church and Wife versus Ruland and Wife.
    1. The Acts of Assembly giving the courts separate equity powers, do not divest them of any part of their previous jurisdiction to afford the same relief through common-law forms.
    2. Equity is still a part of the law of Pennsylvania.
    3. Specific performance of a contract for the sale of land or a trust in regard to it, may be enforced by ejectment.
    4. The judge is the chancellor assisted by a jury.
    5. The judge as chancellor must be satisfied; and what goes to the jury is to determine the credibility of the witnesses, and to weigh and decide on conflicting testimony.
    6. It is not as in other trials, when any evidence reasonably tending to prove a fact is to be submitted to the jury.
    7. If the evidence is too vague, uncertain or doubtful to establish the equity set up, it is the duty of the judge to withdraw it from the jury.
    8. A trust ex maleficio is not within the Statute of Frauds, as adopted in Pennsylvania by the 4th section of Act of April 22d 1856.
    9. A trust ex maleficio may arise under a will.
    10. Enforcing such trust gives full effect to the will, but fastens upon the conscience of the party having procured the will on a promise, a trust which equity will enforce.
    11. If one with notice of a trust, purchase from another without notice, the former can shelter himself under the bonfi. fide of the latter.
    12. If the second purchaser in such case be the original trustee, he merely acquires his former estate and is fixed with the trust.
    13. A devise was to one absolutely under a promise, that after her death the property should go to others specified. The limitation in the 6th section of Act of April 22d 1856 did not run during her life.
    14. The fraud under which the trust arose was not consummate until the devisee’s death without making a will in favor of those for whom she promised.
    15. Hoge v. Hoge, 1 Watts 163, Jones v. McKee, 6 Barr 425, recognised.
    March 14th 1870.
    Before Thompson, C. J., Agnew and Si-iarswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1870.
    This was an action of ejectment, brought the 26th of July 1867 by Abraham Ruland and Betty Ruland his wife in her right, against Joseph Church and Charlotte Church. The premises claimed in the writ were an undivided sixteenth part of a piece of land in the city of Scranton, containing 40 acres. The premises had originally been the property of Thomas Griffin, who, by his will, dated March 27th 1852, and proved April 3d 1854, devised them to his daughter Letta, adding to the devising clause, “ The said daughter Letta is to have the said lands, &c., in fee simple for ever, without any entailment whatever.” Letta Griffin, the devisee, by her will, dated September 22d 1862, and provedApril 24th 1867, gave legacies to the children of her sister Charlotte, amongst whom was Mrs. Ruland, the plaintiff, to whom she gave $100. She disposed of the residue of her estate as follows:—

      “ It is my will and wish that Charlotte Church, the youngest daughter of my said sister Charlotte, should have the residue of all my property, real, personal and mixed; and I do give and bequeath the same to her, subject to the payment of the foregoing bequests and debts.”
    The residuary devisee was the defendant in this case. The sister Charlotte’s married name was Stevens. The plaintiffs alleged that Thomas Griffin had devised the 40 acres to his daughter Letta, at her solicitation and on her pledge; that after her death the one-half should go to the children of her sister Charlotte.
    The cause was tried, November 15th 1869, before Conyngham,
    Thomas Griffin, a brother of Letta Griffin, the last devisor, testified that in 1853, Letta and her father being together, the father “ said Letta had prevailed on him, that he did not put it into the will, and said that he wanted to make another will. Then Letta said, Father, I will do just as I have agreed with you. Then father replied, I am afraid you won’t do it. Then Letta says, Father, I will do just as you have said about the. property. Then father said, Now we 'wfilll call you for a witness. Now the one-half of this tract of land you can have in trust for your lifetime, and at your death, you see, it is equally divided among Charlotte’s children. Yes, Letta says, I will do so. Then father says, Now, Tom, I want you to remember this. That was all that was said. They were talking about the land he had willed to Letta; was the same land. He called me as a witness for the will to remain as it was, and the Stevens heirs to have one-half of the land at her death. He said Letta had persuaded him not to put this in the will for the Stevens children, and she would do it.” The witness further testified that the father said frequently after this, in the presence of Letta, that Charlotte’s children were to have one-half of the land, and that since his death Letta had often told him that she held one-half the land in trust for her sister- Charlotte’s children.
    Henry Griffin, a nephew of old Mr. Griffin, testified “ that he went to see him about 1852 or 1853; the old gentleman went out of the house. Letta then says, We have been having a pretty hot time here for a while. Says I, What is up ? She says, I have got father to change his will; that she told him she would not keep house for him; she would not stand it unless he had his will changed ; she had got-it now changed about as she wanted it; she had got her brother Ren out of the will as one of the executors, and Randall in his place. Then she went on to say that she had prevailed on her father to will Lotty’s right to her for her use during her life, and her father was very much dissatisfied about it, and he would be in pretty soon, and something would be said about it. About that time it appeared he had been at the door and overheard some of it; he came in and was pretty angry. Walked the floor, stamped his cane, and said he wouldn’t stand it; said it was not his will; it is Letta’s will. Then Letta said, I’ll leave it to Henry, and let me tell my story. She then went on and told what trouble she had had in bringing up that child Lotty Church. Spoke of restless nights and trouble, and she thought she ought for this to have her sister’s share during her life. * * Uncle Tom said he wanted them to have it after his death; they never had anything, and he wanted them to have it. He says, I am afraid, Henry, she won’t do it. I says, Yes, Uncle Tom, she will; she has told me so to-day that. she would do it. Then, says he, Henry, I want you to see that it is done. I said I didn’t know but that I should be dead. Said he didn’t like it the way it was; said he didn’t want it that way, as it would give the chance for a lawsuit; that he would not then disturb the will; would leave it alone for awhile and think of it. That was about all. Some months after that I stopped to see her again, and he began to talk about it in Letta’s presence. She says, Now, father, Henry knows all about it; you must be crazy; he says, I know that. She says, Didn’t you talk it over with Thomas and Ferdinand Yan Storch, a few days ago, and call them up as witnesses to the agreement we had made concerning the will of this property ? He said, That is just what I am coming at. Now, says he, Letta is to have the use of this property; one-half of it don’t belong to her; one-half is hers to have the use of it during her life, and then the one-half is to go to the Stevens heirs. She said she was going to give it all to them. He says, Maybe not in the way I want to give it; maybe you may give it all to one or two of them, as you may like. She said she would give it to all of them. He said he wanted it understood that one-half she had nothing to do with; it must be equally awarded among them; that with the other part she might do what she pleased. She might give it in the family or out of the family; didn’t care what she did with it. She said she would do as she had agreed, and Thomas and Ferdinand Yan Storch called as witnesses.”
    Sarah A. Heermans testified :—

      “ After the death of Uncle Thomas Griffin, I had conversations with Letta frequently about her father’s will. She said that she and her father had an understanding that the portion belonging to the heirs of Charlotte should remain in Letta’s hands until Letta’s death, and then go to Charlotte’s children. Charlotte Church and Letta, talking about the heirs and the will in my presence, said that the Stevens^ heirs were dissatisfied; that she had beard that they threatened to break the will of her father Thomas. She said that they must wait; that they would have their mother’s portion when she was done with it. She had promised her father that at her death she would secure to the heirs of Charlotte Stevens the portion that belonged to their mother. The same conversation was frequently talked over in the presence of Charlotte Church and Letta Griffin. Some of these conversations took place after Charlotte married Church, in the presence of Charlotte Church,”
    McKiel Stevens testified:—
    “ Old Thomas Griffin was my grandfather. My mother’s name was Charlotte;’she has been dead about 28 years, perhaps SO years. I have a suit for my portion of this land. I had conversations with my aunt Letta; the first conversation soon after grandfather’s death; was in the same spring. She said, that grandfather had left one portion to her for her lifetime, and then was to be given up to us. On another occasion she told me she had been offered $300 or $350 per acre for it, and wanted to know if I thought she had better sell it for that. * * * On the next occasion she told me she had sold it for $500 per acre to Edmund Griffin, The next conversation I remember, I received a letter from her, and went to see her. Edmund Griffin had failed to make payments, and he had threatened to keep her out of her property during her lifetime, and wanted I should take hold of it and try to get the property back into her hands. She said she had given up the bond to him, and only held the mortgage, and wanted me to come to Wilkesbarre, and see Lawyer Dana, her counsel, as to what could be done. She said, Do not leave a stone unturned; the property belongs to you children; it was left to me by your grandfather for you children. I came to Wilkesbarre and saw Lawyer Dana. Some time elapsed and she sent for me again, and wanted me to come to Wilkesbarre. Said she wanted me to work as if working for myself, for the property belongs to you heirs. She said if she got the property back into her hands she would sell it again, if I thought best, for $500 per acre. She would have the payments so made that out of the first payment she would try to have it so she could let the heirs have $500 each, and that as the payments fell due she would divide it among them with the exception of what she wanted for her own use. She never said to me that she had used any influence with her father to make the will. Church soon after married into the family.”
    Durlin Griffin testified :—

      “I am son of Thomas Griffiin the elder. Was present at conversation between father and sister Letta about this property in the latter part of August 1853. Ferdinand Yan Storch was called as a witness between my father and sister Letta. My father appeared agitated. He spoke to Ferdinand, and said, I am glad you are come; I am going to make another will. This brought my sister Letta to the door. Then she spoke and said, father thinks all the time I would not give Lotty’s children their mother’s property. Then she called Ferdinand Yan Storch for a witness. Then father spoke: Letta is to have one-half of this property, or her children and I want you to remember this ; the children are to have it at Letta’s death.”
    Charlotte West testified:—
    “ I am no relative to these parties. Letta came into my house, shortly after her father’s death, and said her father had willed her 40 acres of land, and the house. She said, The half of it belongs to my sister; she mentioned her portion. I promised father, when he made his will, that the half of his property should be divided amongst my sister’s children, as she never had anything, and she said, I can do with my half as I please.”
    The other children of Charlotte Stevens testified that Letta had declared to them that under the arrangement with her father, they, the children of Charlotte were to have one-half the property on Letta’s death. There was other testimony also of the same character.
    The defendants gave in evidence, a deed dated August 19th 1856, from Letta Griffin to Edmund Griffin for 19 acres, part of the 40 acres; judgment in her favor against Edmund and sale to her by the sheriff of the same land. They gave evidence of the instructions given by Thomas Griffin as to drawing his will, in which nothing was said about Letta’s agreement, and in which he told his counsel specifically to insert the clause which declared she should have the land “without any entailment.”
    There was much other evidence on the part of the defendants for the purpose of showing that there was no arrangement such as would affect Letta vyith a trust.
    A number of points were submitted by each of the parties:
    By plaintiffs, amongst others :—
    5. If Letta Griffin, at the time she made a conveyance of a part of the land in dispute to Edmund Griffin, held the undivided one-half part of that land in trust for the heirs of Charlotte Stevens, deceased, coupled with a power to sell the same, and on such sale received from Edmund Griffin part of the purchase-money, and had the balance of the purchase-money secured by bond and mortgage on the land; and afterwards Edmund Griffin failed to pay the balance of the purchase-money so secured, and she obtained judgment against him on said bond, and upon said judgment sold the land at sheriff’s sale, and at such sale bid the same in for a sum less than the debt upon which' it was sold, and had the deed made in her own name, she cannot hold the undivided one-half part of the land that she held in trust for the heirs of Charlotte Stevens, deceased, against their will; but a resulting trust is raised in favor of the said heirs, and Letta Griffin thereupon held the undivided one-half part of said land in trust for the heirs of the said Charlotte Stevens, deceased.
    6. If Letta Griffin was a trustee before her sale to Edmund Griffin, and she made the sale to him, taking a bond and mortgage for part of the purchase-money, upon which by suit and judicial sale the land came back to her, she still remained a trustee, and the right of the Stevens heirs would not be divested by reason of such sale; a fortiori is this the case if she consulted with the Stevens heirs in relation to such sale, promising to divide the proceeds when received.
    The defendants’ 5th and 6th points were:—
    5. If a trust existed by operation of law in Letta Griffin, at any time, and she with the knowledge, acquiescence and consent of the plaintiffs sold the land, or any patt thereof, to Edmund Griffin in fee simple, which was afterwards sold at judicial sale, purchased by Letta Griffin, and conveyed to her by sheriff’s deed, she takes under it discharged of the trust.
    6. That the will of Thomas Griffin, having been duly admitted to probate, and more than two years having elapsed since the 1st day of October 1856, without the plaintiffs having brought their action, and duly pursued it to recover the land in controversy, it is conclusive as to such realty, and the plaintiffs cannot recover.
    The other points related to the question of the creation of the trust.
    The court affirmed the plaintiffs’ 5th and 6th points, and refused the defendants’ 5th and 6th points.
    After referring to the evidence and stating the principles of law applicable to the question of parol trusts, Judge Conyngham said:—

      “ Where an estate is invested in another by will, as in this case, and at the time of the creation of the estate the devise is agreed to be received, and is accepted for the use of another person, either immediately or to commence at a future time, by the agreement and understanding of the parties, the person from whom the estate is to pass, and the one in whom it is to vest, as here Thomas Griffin the elder and his daughter Letta, a valid trust for such other person will be supported and recognised in law, even though it is all dependent upon parol or verbal testimony.”
    He further referred to the evidence in connection with the law, and concluded :—

      “ In all cases of claimed parol trusts, the whole evidence must be carefully examined and fully weighed and considered, and the alleged facts must be satisfactorily established in the judgment of the jury, before they can be allowed. It does not depend upon what a jury may think ought to have been done by the grandfather, under the circumstances mentioned, for the benefit of his grandchildren, but what did he do, or what did he leave undone, that he desired to do ? By the will in writing, in plain and clear language, he gave the entire fee simple of tbe property to his daughter Letta, and she and those claiming under her, have the right to ask the court and jury so to hold and decide, unless under the principles already stated, the jury find such a state of the facts fully and clearly proved, as to establish a trust for the one moiety of the trust for the Stevens heirs, as heretofore explained to you.

      “ The case, under these rulings, presents a question of fact for you-; you are to judge of the credibility of witnesses, whether they are to be believed or not, whether mistaken or not, and what was the true understanding, in fact agreement, if any, between Letta Griffin and her father as to this property. We have carefully explained to you, what would be necessary in order to establish a valid trust, which can be enforced in this suit.”
    The verdict was for the plaintiffs.
    The defendants removed the case to the Supreme Court, and there assigned fifteen errors. The 9th assignment was to the refusal of the defendant’s 6th point.
    The 14th was to the affirmance of the plaintiffs’ 5th and 6th' points and the refusal of the defendants’ 5th point.
    The others related to the charge of the court on the question of the parol trusts, and are sufficiently indicated in the opinion of the Supreme Court.

      Lamberton, Winton and Kulp, for plaintiffs in error.
    — Edmund Griffin took the land without notice, and therefore clear of the trust: Scott v. Gallagher, 14 S. & R. 333; Peebles v. Reading, 8 Id. 495. The purchaser of his title at a judicial sale takes it in the same way: Bracken v. Miller, 4 W. & S. 102; Act of June 16th 1836, § 66, Pamph. L. 773, Purd. 443, pl. 78; Arnold v. Gore, 1 Rawle 227. The claim should have been pursued within a reasonable time : Prevost v. Gratz, 1 P. C. C. Rep. 373 ; Leisenring v. Black, 5 Watts 304. Parol declaration of trust must be contemporaneous with the act: Edwards v. Edwards, 3 Wright 378; Rearick v. Rearick, 3 Harris 66; Lingenfelter v. Ritchey, 8 P. F. Smith 488; Irvin v. Irvin, 10 Casey 525; Hoshauer v. Hoshauer, 2 Id. 407. The court should reject all evidence of trust against the legal title which- would not induce a chancellor to decree a conveyance : McBarin v. Glass, 13 Wright 162; Emerick v. Emerick, 3 Phila. R. 94. The subject of the trust was not specific as in Hoge v. Hoge, 1 Watts 63; Jones v.
      McKee, 3 Barr 96. The probate of a will is conclusive as to real estate after five years : Act of April 22d 1856, § 7, Purd 275, pl. 13; Kenyon v. Stewart, 8 Wright 180; Kenyon v. Ashbridge, 11 Casey 157. The trust was not executed within five years: Act of 1856, supra, § 6, Purd. 655, pl. 13. The conveyance, although in Letta’s lifetime was a disaffirmance of the trust and should have been pursued within the time limited by law: Lyle v. Richards, 9 S. & R. 449; Williams on Real Prop., 27 Co. Litt. 362. The probate of Thomas Griffin’s will has become conclusive : Spangler v. Rambler, 4 S. & R. 193; Smith v. Bursall, 5 Rawle 86; Rowland v. Evans, 6 Barr 441; Allen v. Dundas, 3 T. R. 130; Archer v. Morse, 2 Vern. 8 & 9; Bacon Abr. title Wills; Thompson v. Thompson, 9 Barr 234; Barkers. McFerran, 2 Casey 213; Holliday v. Ward, 2 Harris 490; 1 Williams on Ex., § 450; Warfield v. Fox, 3 P. F. Smith 384; 1 Jarman on Wills 21, note; Gable v. Daub, 4 Wright 217.

      W. Gr. Ward, A. Hand and Wright £ Harrington, for defendants in error.
    — Although a will has been conclusively established by the probate, it may be affected with a trust: 1 Williams on Exrs. 341, 342; 1 Jarman on Wills 22 and note, 23 ; Gawler v. Slanderwick, 2 Cox 16; Barrow v. Greenough, 3 Vesey 152; Bym v. Godley, 4 Id. 11; Strickland v. Aldridge, 9 Id. 516; 1 Story’s Eq. Jur., § 256, note 1-4; Porter v. Mayfield, 9 Harris 264; Irons v. Burns, 6 P. F. Smith 301.
    Parol evidence is admissible to charge a trust upon an executor or a devisee who has prevented the testator from making provision in his will by expressly and verbally undertaking with the testator to fulfil his wishes in that respect, or by fraudulently inducing him to make a new will without such provision: 3 Greenl. Ev. § 365; 1 Story’s Eq. Jur. §§ 252, 256; 2 Id. § 781; 3 Woodeson’s Lectures 261; 4 Kent’s Com. 305 and note a; 2 Crabb on Real Property 1768 and notes; Ward on Legacies 14, 15; Powell on Devises 512, 513 and notes; Lewin on Trusts 38, 39; Law of Trusts, &c., by Tiffany & Ballard 189 et seq.; 1 Jarman on Wills 350; Chit. on Contracts 56; Addison on Contracts 844; 2 Washburn on Real Property 178; Mestear v. Gillespie, 11 Ves. 638; Thompson v. White, 1 Dall. 447; German v. Gabbald, 3 Binn. 302; Drum v. Simpson, 6 Id. 478; Slaymaker v. St. John, 5 Watts 30 ; Hoge v. Hoge, 1 Id. 162; Sheriff v. Neal, 6 Id. 541; Miller v. Peirce, 6 W. & S. 100; Rearick v. Swineheart, 1 Jones 240; Jones v. McKee, 3 Barr 496; McKee v. Jones, 6 Id. 427; Lloyd v. Carter, 5 Harris 220; Williard v. Williard, 6 P. F. Smith 124.
    If Letta Griffin sold wrongfully, she bought back charged with the trust if the heirs of C. Stevens so elected, and they can claim the benefits of her repurchase: Law of Trusts by Ballard & Tiffany 555; Noel v. White, 1 Wright 523.
    The sale of real estate and securing of balance of purchase-money by a mortgage form one transaction, and a sale upon a judgment recovered upon a bond accompanying the mortgage, where the vendor is the purchaser, places the parties in their original position: Chew v. Mather, 1 Penna. R. 474; Episcopal Academy v. Frieze, 2 Id. 16; Love v. Jones, 4 Id. 465; Horbach v. Riley, 7 Barr 81; Kerr v. Stiffey, 2 Penna. R. 176. The cestui que trust may follow the trust-money into land purchased with it by the trustee: 3 Washburn on Real Property 187, § 47; Kilpatrick v. McDonald, 1 Jones 393.
    Woodward, for plaintiff in error, in reply.
    — Ejectment has been sustained in Pennsylvania to enforce the execution of a parol trust, on the principle that equity considers that done which ought.to be done. But by various Acts of Assembly since 1836, full chancery powers have been conferred on our courts and suitable forms of procedure prescribed. By Act of March 21st 1806, Purd. 41, where 'a remedy is provided or duty enjoined, &c., by an Act of Assembly, the act must be strictly pursued. Our equitable ejectment should be considered as taken away by the statutes conferring the chancery powers.
    The enforcing of this trust would repeal Thomas Griffin’s will. His will cannot be repealed; nor “ any devise or direction altered,” but by some other will, &c., Act of April 8th 1833, § 13, Purd. 1017. Further, Letta’s title is confirmed by the acts of ownership exercised by her, for many years in sight of the cestuis que trust, who, if they could not have taken possession during her life, could have had relief in equity : Hill on Trustees 168 ; Smith v. Clay, Bro. C. C. 639; Beckford v. Wade, 17 Vesey 97. The Act of 22d April 1856, supra, 4 and 7 sections, bars the plaintiffs.
    The heirs of Charlotte Stevens were bound to come in within two years after this act, to impeach Thomas Griffin’s will. The trust must under the act be manifested in writing. The proof of what took place at the time the will was made is contrary to the trust, instead of for it. If an agreement was made afterwards, it is nudum pactum — it is opposed to the policy and letter of the statutes, and is not within any of the modes in which a resulting trust can arise, viz., a purchase is in the name of another; where there is a voluntary conveyance with no trust declared, and where the conveyance is on trusts which are not declared; or are only partially declared or fail. The testator must sufficiently express his intention that the donee should take only in trust for others : Meredith v. Heneage, 1 Sim. 555; Wood v. Cox, 2 M. & Cr. 692. A trust is never presumed except in case of absolute necessity : Cook v. Fountain, 3 Swanst. 585; Padmore v. Gunning, 7 Sim. 644; Porter v. Mayfield, 9 Harris 263; Barnet v. Dougherty, 8 Casey 371; Bennett v. Fulmer, 13 Wright 155; McBarron v. Glass, 6 Casey 133.
    March 24th 1870,
    It is submitted that the most thorough examination of the authorities will establish these two propositions as the very mind of the law:—
    1. Before the Statute of Wills, 1 Vict. c. 26, § 9, chancellors treated resulting trusts upon the Statute of Frauds, 29 Car. 2, holding that a statute to prevent frauds must not become an instrument of fraud, they admitted par,ol evidence freely to discover the real intention of the testator, and thus to give his will the very effect he intended it should have.
    2. But since the Statute of Wills, both in England and this country, the field of parol evidence has been greatly narrowed, and is continually narrowing. A testamentary trust, to be made out by parol, must have its root in the will. The instrument, construed by its four corners, must betray the intention of the testator that his donee was to take a qualified interest — something less than an absolute estate.
   The opinion of the court was delivered,

by Sharswood, J.

— It cannot be maintained, at this late day, that the effect of investing the courts with separate equity powers, to be exercised according to the mode of proceeding in use in the English Court of Chancery, was to divest them of any part of the jurisdiction before possessed by them to afford the same relief through common-law .forms. Equity is still as much a part of the law of Pennsylvania as it was in 1787, when Chief Justice McKean so declared it to be in Pollard v. Shaafer, 1 Dall. 210; Lehr v. Beaver, 8 W. & S. 106. The action of ejectment may still be employed as a remedy to compel the specific performance of a contract for the sale of land, or to enforce a trust in regard to it. Every volume of reports since 1836 abounds with the evidence of this in the determination of numerous cases in which it has been silently assumed. Besides, it was expressly so decided in Aycinena v. Peries, 6 W. & S. 257, Biddle v. Moore, 3 Barr 161, and Corson v. Mulvany, 13 Wright 88, so that if any point is ever to be considered completely at rest, it is this. Nor is such an administration of equity justly open to the reproaches cast upon it in the oral argument of this case. It is not the substitution of twelve unlearned chancellors for a lawyer prepared for his office by the lucubrations of twenty year's. The judge in reality is the chancellor with the assistance of a jury. It is not like other ordinary trials at law, where any evidence reasonably tending to prove a fact, must be submitted to be passed upon by that tribunal. The conscience of the judge as chancellor must be satisfied, and what goes to the jury is to determine the credibility of the witnesses, and to weigh and decide upon the force and effect of conflicting testimony. What is this but the trial of a feigned issue out of chancery ? If the evidence is too vague, uncertain or doubtful to establish the equity set up, even if believed, it is the duty of the judge to withdraw it from the. jury either by a nonsuit or a binding direction in his charge, as the case may require : McBarron v. Glass, 6 Casey 133; Todd v. Campbell, 8 Id. 252; Bennett v. Fulmer, 13 Wright 162; Miller v. Hartle, 3 P. F. Smith 111.

The assignments of error, fifteen in number, need not be separately considered. The statement of a few well settled principles and rules of decision disposes of them all.

That a trust ex maleficio is not within the prohibition contained in the 7th section of the Statute of Frauds and Perjuries, 29 Car. 2, c. 3, which was .adopted and enacted in this state by the 4th section of the Act of April 22d 1856, Pamph. L. 533, has been the uniform doctrine of the English courts: Hill on Trustees 59, and the cases there cited, to which may be added Plumer v. Reed, 2 Wright 46; Beegle v. Wentz, 5 P. F. Smith 369, decided by this court since the passage- of the Act. Indeed it is not easy to see how such a trust ever could be made out except by parol evidence, and if this is not competent a statute made to prevent frauds would become a most potent instrument whereby to give them success. That this doctrine is applied to cases arising under wills where a person procures a devise to be made in his favor on the distinct declaration or promise that he will hold the land in trust either in whole or in part for another may be seen in the cases referred to in 1 Jarman 356; 1 Story’s Equity, § 256. It is not | affected by the statutory provisions on the subject of wills. The proof offered is not of any alteration, revocation or cancellation, which must be evidenced in a particular manner. It gives full effect to the will and every word of it, and to the conclusiveness of the probate, where it is conclusive. It fastens upon the conscience of the party, having thus procured a will, and then fraudulently refusing or neglecting to fulfil the promise on the faith of which it was executed, a trust or confidence, which a court of equity will enforce by compelling a conveyance when the proper time for it has arrived; and with us in Pennsylvania such a conveyance will be considered as having actually been made, whenever it ought to have been made. The cestui que trust will be entitled to recover in ejectment against the trustee, and all in privity with him. This was decided in Hoge v. Hoge, 1 Watts 163, a ease fully and ably argued and considered, both by the counsel engaged in the cause and by the court, as appears in the elaborate opinion by Chief Justice Gibson. It was there held' that if a testator be induced to make a devise, by the promise of the devisee that it should be applied to the benefit of another, a trust is thereby created which may be established by parol evidence; and, that this is not contrary to the Statute of Wills. “It is contended,’ said Gibson, C. J., “ that parol evidence of a trust is contrary to our Statute of Wills, which corresponds as far as regards the point in dispute, with the British Statute of Frauds. Undoubtedly every part of a will must be in writing; and a naked parol declaration of trust in respect of land devised, is void. The trust insisted on here, however, owes its validity, not to the will or the declaration of the testator, but to the fraud of the devisee. It belongs to a class in which the trust arises ex maleficio, and in which equity turns the fraudulent procurer of the legal title into a trustee to get at him; and there is nothing in reason or authority to forbid the raising of such a trust, from the surreptitious procurement of a devise.” To the same effect is Jones v. McKee, 3 Barr 496, s. c. 6 Barr 425, a case the same in principle and very similar in its facts to that presented upon this record.

Was there then given on the trial in the court below such evidence of the procurement of the devise of the land in question upon a promise to hold in part for the benefit of the plaintiffs as ought to induce a chancellor to decree tha enforcement of a trust ? If there was, the case was properly submitted to the jury. Three witnesses, entirely disinterested and occupying the same relation to both parties, testified to conversations between the testator, Thomas Griffin, and his daughter Letta, the devisee named in the will, very soon after its execution. Thomas Griffin asserted and his daughter did not deny but admitted that he had made the devise of the whole tract to her alone in fee, by her persuasion, and under her solemn promise that on her death one-half of it should go to the children of her sister Charlotte Stevens. He required her to reiterate this promise in the presence of witnesses. Another disinterested witness testified that on one occasion she heard him, in Letta’s presence, state that it had been agreed between them that the heirs of her sister Charlotte should have their mother’s portion after her death. This is something very different from the mere parol declarations by a testator of what he intended. It was as strong as if witnesses had been produced present at the agreement before the execution of the will. Several other witnesses testified to Letta’s admissions at different times that one-half of the land at her death was to belong to her' sister’s children. Her acts and declarations when she made a contract of sale of the land were strongly corroborative of the same thing. She consulted her nephews, and according to the testimony of one of them, McKiel Stevens, told him she would have the payments so arranged that out of the first instalment she could let the heirs have $500 each, and that as the payments fell due she would divide it among them, with the exception of what she wanted for her own use. That Thomas Griffin at other times stated that he wanted Letta to remember Charlotte’s children, when she was done with the property, or that she should remember the Stevens’ children if she had anything left, did not materially weaken the force of the direct evidence before adduced. Nor did the fact that he did not communicate the agreement to his counsel when he drew the will, though it was certainly a circumstance to be weighed by the jury, necessarily contradict or impeach the testimony of the witnesses as to the agreement admitted by Letta to have been made before the will was drawn. Indeed even regarding the evidence to be inconclusive of the existence of such prior agreement, the testimony of Durlin Griffin, if believed, would establish the trust; for he stated that Thomas Griffin said to Van Storch, who was called in as a witness that he was going to make another will, but that Letta by her promise made at that time prevented him from doing so. There was then sufficient evidence, if believed, to establish the trust.

It is supposed, however, and one of the assignments of error rests on that basis, that Letta, the devisee, could claim as a bond fide purchaser under her vendor, Edmund Griffin, who does not appear to have had notice of the trust. Undoubtedly if a person, though with notice, purchases from one without notice, he is entitled to stand in his shoes, and take shelter under his bona fides. If it were not so the bond fide purchaser without notice might be unable to dispose of the property, and thus its value in his hands be materially deteriorated. But if the second purchaser in such case be the original trustee, who reacquires the estate, he will be fixed with the trust: Hill on Trustees 165. If an express authority for so plain a position be needed it will be found in Kennedy v. Daly, 1 Schoale & Lefroy 379.

Nor is the plea of the limitation contained in the 6th section of the Act of April 22d 1856? Pamph. L. 533, of any avail. That section provides “ that no right of entry shall accrue or action be maintained * * * * to enforce any implied or resulting trust as to realty, but within five years after * * * * such equity or trust accrued, with the right of entry.” During the life of Letta, the devisee, the trust did not accrue. The fraud from which it arose was not consummate until her death without having made a will in favor of the children of Charlotte Stevens. Until then no action could have been maintained: Price’s Appeal, 4 P. F. Smith 472.

Judgment affirmed.


author: by Agnew, J.

text:
    Cook and Wakeley versus Deerfield Township.
    1. Supervisors cannot change the route of a road without the sanction of the Quarter Sessions.
    2. Supervisors contracted to change the route of a road ; the contractors had no knowledge that the supervisors were acting without authority. Held, that they could recover against the township for their work.
    3. The township had a remedy over against the supervisors to charge them with the illegal expenditure in their settlement before the auditors. ■
    4. Supervisors have a general authority to repair public roads, and to bind the township for the expense.
    5. The principal must suffer the loss if a general agent exceed his power in a particular, apparently within his authority.
    6. Those who work for supervisors on the roads are not hound to make inquiry beforehand, as to the rightful location of the route.
    March 15th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Tioga county: No. 156, to January Term 1870.
    This was an action of assumpsit, by Dormo Cook and W. 0. Wakeley, for the use of Rossham & Gertsley, commenced April 27th 1867, against The Township of Deerfield.
    This action was for the recovery of $200, the amount of an order issued to plaintiffs by the supervisors of the township of Deerfield for work done by them in the repair of a road under authority of the supervisors, who approved of the work and accepted it. It appeared that the road on which the repairs were required, was so located that it was found impossible to repair it without changing the route for thirty or forty rods. The work which the plaintiffs performed was in opening and making the road on the changed route, under instructions from the supervisors, and with the consent of the landholders through whose land the change was made. There was no authority of law for the alteration, but there was no evidence that the contractors knew that the supervisors in . making it were acting without authority.
    The plaintiffs asked the court to charge:—
    “ That if the jury believe from the evidence that there was a public necessity for the change of the Troop’s Creek road, in the township of Deerfield, for the distance of thirty-five rods, of forty feet in width on an average, and that the interests of said township were better subserved by such change than by an attempt to repair the road on the old site, such change having been made with the full consent of the owners of the land over which the road passes, the defendant is liable for the value of the work and labor done to effect such change, and the plaintiffs are entitled to recover.”
    The court (White, P. J.) refused the point and charged:— * *

      March 21st 1870,
    “ The action of tho supervisors, therefore, in changing this road was without authority of law and void; and no recovery can be had against the township of Deerfield for the value of the work done by Cook & Wakeley under their contract, nor any part thereof; nor for the price stipulated to be paid them in the contract, or any part thereof. Under all the facts given in evidence, the jury are instructed to return a verdict for defendant.”
    The verdict was for the defendant.
    The plaintiffs removed the case to the Supreme Court, and assigned for error the refusal of their point, and the portion of the charge above given.

      M. F. Elliott, S. F. Wilson and W. E. Smith, plaintiffs in error. '

      E. Sherwood and J. B. Niles, for defendant in error,
    cited Holden v. Cole, 1 Barr 303; McMurtrie v. Stewart, 9 Harris 322; Clark v. Commonwealth, 9 Casey 112; Furniss v. Furniss, 5 Id. 15; Calder v. Chapman, 8 Barr 522.
   The opinion of the court was delivered,

by Agnew, J.

— The point on which the plaintiff asked the court below to charge the jury introduced unnecessarily a question as to the right of the supervisors to change the route of the road on which the work was done, and was, on this account, followed by an adverse answer. There can be no doubt of the entire want of authority in the supervisors of a township to change the route of a public road, without the sanction of the Court of Quarter Sessions given in a proper proceeding to effect the change: Holden v. Cole, 1 Barr 303; Calder v. Chapman, 8 Id. 522; McMurtrie v. Stewart, 6 Harris 322; Clark v. Commonwealth, 9 Casey 112.

But the judge concluded his charge by instructing the jury that on all the facts in evidence, they should return a verdict for the defendant. It does not appear, however, in the evidence, that the plaintiffs were informed that the change in that part of the road was made without authority. Eor aught that appears in the evidence, it is fair to presume that the plaintiffs, as contractors for the repair of the road, acted under the belief that this part of the route was changed in conformity to law. This being so, the loss should fall on the township in the first instance, and not on the contractors, the township having a remedy over against the supervisors to charge them in their settlement before the auditors, with the illegal expenditure. The reasons for this are obvious. The supervisors have a general authority to repair the public roads of the township and to bind the township for the expense. Their power to bind it is like that of a general agent, whose principal must suffer the loss, if the agent exceeds his power in a particular apparently within his authority. Being the authorized agents of the township in the general repair of public roads, it is manifest that those who are employed to work on the roads are not bound to make inquiry beforehand, as to the rightful creation of the road on which the supervisor directs them to work. It would be intolerable injustice if those who take contracts from public officers having competent authority to make them, should be compelled to lose the labor and money expended by them, if it should turn out that the officer had misdirected them where to perform the contract.

It was on this principle of general authority on the part of county commissioners to represent the county, that it was held in Dauphin County v. Bridenhart, 4 Harris 458, that the county was bound for the rent of a house leased by the commissioners for the use of the sheriff; though there was no authority to furnish him with a dwelling. The commissioners therein exceeded their powers, but having a general power to act in behalf of the county, the owner of the house was not bound to inquire into their authority in the particular instance. It is often impossible for individuals to know, or to be able to determine, whether the particular matter lies within the scope of a general agent’s power. There are cases where the county is sometimes bound even where the agent has no general authority. Such are the following: Commissioners v. Hall, 7 Watts 290, where the county was held liable for the expense of a jury kept together in a capital case; Allegheny County v. Watts, 3 Barr 462, where the county had to pay the fees of a physician for making a post mortem examination at the instance of the coroner; McCalmont v. Allegheny County, 5 Casey 417, where the county was held liable to pay the expense of an office to keep the records, &c., of the Supreme Court. There being in this case no evidence that Cook & Wakeley, the contractors, made themselves a party to the illegal' act of the supervisors, or were notified to desist on that account, the court erred in directing a peremptory verdict against the plaintiffs.

Judgment reversed, and a venire facias de novo awarded.


author: by Thompson, C. J.

text:
    Stern’s Appeal.
    1. A plaintiff issued a fi. fa., an alias and a pluries, on each of which he directed the sheriff “ not to do anything until further orders.” The pluries being in the sheriff’s hands without a levy, the plaintiff on Sunday directed the sheriff to proceed; he declined; on Monday when about to levy, an execution by another plaintiff came to his hands. Held, that this execution had priority.
    2. The direction on Sunday was a nullity; the sheriff was not bound to receive or notice such an order on that day.

      3. The Act of 1705, $ 4 (Sunday), forbids the sheriff to keep his office open on Sunday to receive directions as to his official duties.
    4. Judicial business in civil cases on Sunday is violative of the rule of the common law and our statutes.
    March 15th 1870.
    Before Thompson, C. J., Asnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Luzerne county: To January Term 1870: In the matter of the distribution of the proceeds of sheriff’s sale of the personal property of Abraham Lorentz.
    The fund for distribution amounted to $548.60, of which, after payment of costs and expenses of audit, $104 were appropriated by the auditor, II. W. Palmer, Esq., without objection, to the payment of rent due by the defendant, leaving a balance of $852.59 to be appropriated to the execution-creditor entitled.
    Jacob Stern recovered a judgment against Lorentz for $2000. On the 29th of June 1868, he issued a fi. fa. on this judgment, and directed the sheriff “not to do anything with the writ until further orders.” No levy was made on this writ and it was returned, stayed by order of the plaintiff’s attorney. An alias fi. fa. was issued to the next term on the same judgment and the same orders were given. This writ also was stayed without a levy. On the 9th of November 1868, a pluries fi. fa. was issued to the next term ; the same order was given as to this writ; in consequence of this instruction no levy was made. On Sunday, the 6th of December, the plaintiff requested the sheriff to proceed at once to levy on the defendant’s goods, saying that he was afraid the defendant contemplated moving them. The sheriff declined to act on Sunday, promising to execute the writ on Monday. Before executing the writ on Monday, a fi. fa. on a judgment in favor of Herz Lowenstein was placed in his hands, and a levy made under both writs.
    The auditor found that “ Stern’s writs were not issued for the purpose of levying and selling the defendant’s goods, but for some other purpose known only to him. * * * I am satisfied in this case that it was not the bond fide intention of Stern to sell the goods of Mr. Lorentz, but that his execution was issued for other purposes, and that it must be postponed to that of Herz Lowenstein, which was legally issued and duly prosecuted.” The auditor awarded the balance of the fund to Lowenstein.
    Stern excepted to the auditor’s report. The court confirmed the report; for the reasons given by the auditor, and also because the order to proceed, having been given on Sunday, was of no validity.
    Stern appealed, assigning the decree of confirmation for error.

      Gr. LLahn and S. Woodward, for appellant.
    — Even if the first two writs were to hinder and delay, this would not affect the third which was duly prosecuted: Emerson v. Smith, 1 P. F. Smith 94; Freeburger’s Appeal, 4 Wright 246; Corlies v. Stanbridge, 5 Rawle 287; Commonwealth v. Stremback, 3 Id. 343; Hickman v. Caldwell, 4 Id. 381; Pary’s Appeal, 5 Wright 277. The different executions are not to be treated as one: Commonwealth v. Magee, 8 Barr 248; Spang v. Commonwealth, 2 Jones 359; Hunt v. Breading, 12 S. & R. 41; Boas v. Updegrave, 5 Barr 519. As to the notice having been given on Sunday: Mackally’s Case, 9 Rep. 68; Taylor v. Phillips, 3 East 156; Lea v. Hopkins, 7 Barr 499; Mohney v. Cook, 2 Casey 345; Shuman v. Shuman, 3 Id. 94.
    May 5th 1870,

      C. E. Rice and L. Sahes, for appellee.
    — As to staying the writ: Corlies v. Stanbridge, Commonwealth v. Stremback, Hickman v. Caldwell, supra; Weir v. Hall, 3 W. & S. 287; Flick v. Troxell, 7 Id. 68.
   The opinion of the court was delivered,

by Thompson, C. J.

— The auditor appointed by the court below to make distribution of the proceeds of the sale of the property of the defendant made on the executions of the appellant and the appellee, awarded what remained after payment of the costs on the writ, and a claim for rent due the appellant the landlord, to the execution of the appellee. The writ of the former was first in the sheriff’s hands, but the auditor, on the hearing, found that his writ, like two preceding executions issued by him against the defendant, was not with the intent to collect his debt but with a view to secure the property against other creditors. Under these circumstances he decided that it was postponed to the junior execution of the appellee and so made distribution. It appeared when this last execution of the appellant was put into the hands of the sheriff he was directed by the plaintiff, as had been done by himself or by his orders as to the others, “ not to do anything until further orders.” This the auditor held, according to the authorities, Corlies & Co. v. Stanbridge, 5 Rawle 290, among them, destroyed its lien and postponed it to the subsequent bona fide execution. The court below agreed with the auditor, and confirmed the distribution made. With this we entirely agree. A host of authorities might be cited to sustain this view: Freeburger’s Appeal, 4 Wright 244, and the doctrine of Pary’s Appeal, 5 Id. 273.

But it was claimed before the auditor, and here, that the order given the sheriff not to proceed on the writ was countermanded by the appellant, by the order to proceed given by him to the sheriff, on the Sunday preceding the Monday morning on which the appellee’s execution came into his hands. The auditor and court treated this last order as a nullity, when the object in view was considered. And with this we agree. Sunday is dies non juridieus. The sheriff was not bound to receive or notice such an order on that day. To hold that he was, would be to hold that he was bound to keep his office open on Sundays to receive directions in regard to his official duties. But this is impliedly forbidden by the Act of 1705, against the service of civil process on Sunday, if not by the common-law rule that Sunday is dies non.

Judicial business in civil cases, done on Sunday, is violative of the rule of the common law and our statutes, which in fact are declarative of the common law. This is sustained by all our decisions on the subject of Sunday, and they need not now be cited more specially.

If an actual levy had been made on the appellant’s writ on Monday morning, before the appellee’s writ came to the sheriff’s hands, and in consequence even of the directions given the day before, the intent to proceed to collect his money on the writ pursuant to the levy, might have been supported as against the idea that it was still a colorable proceeding, as well as by declarations to the same éffect on any other day. The act and declaration would have been in accord — evidencing the same purpose. But to claim that the order given on Sunday, of itself imparted such vigor to the writ issued for the purpose of security only as to galvanize it into life, is what we cannot agree to. If it might have such an effect on any other day, without being accompanied with a levy before the lien of another writ attached, and I do not say it would, it would not have the effect on that day.

In fact the appellant’s writ if issued for the purpose of security, as the auditor has found it was, never had any lien on the defendant’s goods as against other execution-creditors. Therefore, when the appellee’s writ came to the sheriff’s hands it bound what was not bound by the appellant’s writ, and as to it, was the first lien. It is but a choice of terms to express the same idea, whether we say it had lost its lien or it never had any. The fruit and effect of placing it in the sheriff’s hands not to sell, but as a cover, were against the policy of the law and the Statute of Frauds, 13 Eliz. c. 5, Rob. Dig. 226.

We think the distribution made in the court below was entirely accurate so far as we see, and the decree is to be affirmed.

Decree affirmed, and appeal dismissed at the costs of the appellant.


text:
    Springbrook Road.
    1. An act authorized the Court of Quarter Sessions of Luzerne county, at any term to direct the court at the next following term, to continue one or more additional weeks. August Term expired September 5th; an order was entered of record September 7th for an additional week at November Term. It is to be presumed that court had adjourned to that day.
    2. Everything is to be presumed in favor of the regularity of the proceedings of a court of justice.
    3. Viewers for a public road were appointed at the August Term: they made report during the additional week of November Term. Held, that the week was part of that term and not an adjourned court, and the return was in time.
    4. A report of viewers made at a term succeeding the term next after their appointment or at an adjourned court, is irregular.
    5. It is proper that the court, after exceptions, should allow viewers to make an amended report as to informal errors, when the amendment is made within the time for filing the original report.
    6. It need not appear on the face of the report, that all the viewers were present at the view.
    March 15th 1870.
    Before Thompson, C. J., A&new and Sharswood, JJ. Read, J., at Nisi Prius.
    Certiorari to the Court of Quarter Sessions of Luzerne county: No. 28, to January Term 1870.
    The proceedings removed in this case related to the laying out, &c., of a road in Springbrook township, Luzerne county. By an Act of March 1st 1860, Pamph. L. 117, the Court of Quarter Sessions of Luzerne county, “ may at any term or session direct the said courts to continue at the then following term or session one or more weeks in addition to those regularly appointed by law; and for such additional week or weeks to issue venires for traverse jurors, as now required for the regular term or session.”
    The August session for 1868 commenced on the fourth Monday of August, which was the 24th, and continued two weeks, expiring September 5th. On that day the court appointed three viewers to view and lay out a road in Springbrook township.
    On the 7th of September 1868 the'following order was entered of record:—
    “Now, September 7th 1868, it is ordered that the Sessions and Oyer and Terminer be continued at the November sessions next two weeks, and that the second or adjourned week commence on the fifth Monday of November 1868, and that venires issue in said court for each of such weeks.”
    The viewers made a report which was filed December 4th and confirmed nisi; this day was in the additional week of the court, as directed by the special order of September 7th. Several exceptions as to matters of form were filed. The court recommitted the report to the viewers, and the errors complained of were corrected in an amended report, which was confirmed absolutely August 16th 1869. The report was signed by two viewers, and it did not show that all the viewers had been present.
    March 21st 1870,
    On the removal of the proceedings, the following errors were assigned:—
    1. Overruling the exceptions and confirming the report.
    2. It does not appear by the report that the viewers were all present..

      O. E. Wright and D. C. Harrington, for certiorari.
    — By the Act of June 13th 1886, Purd. 871, pl. 3, viewers are to make' report to the next term: Baldwin Road, 3 Grant 62. The next term is the next regular term: Horton v. Miller, 2 Wright 270. The amended report was confirmed absolutely without having been confirmed nisi: Road to Ewing’s Mill, 8 Casey 282; Gibson’s Mill Road, 1 Wright 255; Road in Reserve Township, 2 Grant 204. It does not appear that all the viewers were present: Middle Creek Road, 9 Barr 69; Paradise Road, 5 Casey 20. As to considering an exception not made below: Frankstown Road, 2 Id. 473.

      J. G. Miller, contrá.
    — As to sending the report back for amendment: Towamencin Road, 10 Barr 195; Potts’s Appeal, 3 Harris 414. A majority of viewers may report: Act of February 24th 1845, Pamph L. 52. The presumption is that the proceedings were regular: Schuylkill Falls Road: 2 Binn. 255; Spear’s Road, 4 Id. 174; Middle Creek Road, 6 Barr 69; McCall’s Ferry Road, 13 S. & R. 25; N. Haven Road, 9 Harris 220; Spring Garden Road, 7 Wright 144; Commonwealth v. Atlantic and G. Western Railroad, 3 P. F. Smith 9.
   The opinion of the court was delivered,

by Sharswood, J.

— By the 3d section of the “ Act relating to roads, highways and bridges,” passed June 13th 1836, Pamph. L. 555, viewers of roads are required to make report to the next term of the court after that at which they have been appointed; and it has been decided that a report made and confirmed at a succeeding term or an adjourned court is irregular, and may be set aside: Stauffer’s Appeal, 1 Amer. Law Jour. 441; Boyer’s Road, 1 Wright 257; Heidelberg Township Road, 11 Id. 536. The Act of February 24th 1845, Pamph. L. 52, which makes certain changes in the general road law in the county of Luzerne and other counties therein named, leaves this point unaltered.

The viewers were appointed September 5th 1868, the last day of the August sessions. The next term was by law to commence on the fourth Monday of November, and to continue one week, unless otherwise ordered: Act of March 7th 1860, Pamph. L. 117. It was provided by the 3d section of this act that the Court of Quarter Sessions of the county of Luzerne may at any term or session direct the said courts to continue at the then following term or session, one or more weeks in addition to those regularly appointed by law. An order w.as made for a second or adjourned week of court at November sessions, but this order was not entered of record until September 7th 1868. It is objected that it is not within the act, not having been made at any term or sessions. August Term expired September 5th, which was Saturday, and the order was entered on Monday following. Everything is to be presumed in favor of the regularity of the proceedings of a. court of justice; and we may presume that the Order of September 7th 1868 was made at the August Term, and that the court had adjourned to that day. It is not unusual to hold an adjourned session on the Monday succeeding the term in order to wind up the business. This satisfies the words of the act, which are term or session. In point of fact, there was a second week of the November sessions held, during which the report of the viewers in this case was filed. We agree with the learned judge below, that this was not an adjourned court, but an enlargement or continuation of the November Term, and that the report was therefore made to the next term of the court after the appointment of the viewers.

The other exceptions filed below have not been pressed. The court allowed the viewers at the same term to file an additional or amended report — a practice in all respects proper. It would be intolerable to set aside such report for merely informal errors, where the amendment is made within the time allowed by law for filing the original report.

The 2d assignment of error is, that it does not appear by the report that the viewers were all present. This exception was not made in the court below, and if made there in all probability the report would have been amended according to the fact. It is true, that to the rule that all objections to proceedings in road cases not made below, will be considered as waived, such errors as appear on the face of the record must be regarded as exceptions, as was held in Frankstown Township Road, 2 Casey 472. There, however, the exceptant had not been heard, and the allegation was that he had no notice of the proceedings. In this case the exceptants did file exceptions, and the reason of that case does not apply, where the defect on the face of the proceedings is one of form only, not of substance. Without deciding this, however, it is enough to say that it has often been held in this court that it need not appear on the face of the report that all the viewers were present at the view: McCall’s Ferry Road, 13 S. & R. 25; Middle Creek Road, 9 Barr 69; Road to Ewing’s Mill, 8 Casey 282.

Order affirmed.


text:
    Munger versus Silsbee.
    1. When the question whether a structure is one or two buildings, under the Mechanics' Lien Law, depends upon disputed facts, it is for the jury.
    2. The acts and sayings of a party are evidence against him if they relate to the subject-matter of the issue.
    3. Under the circumstances in this case the question, one or two buildings, was properly submitted to the jury.
    March 15th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Writs of error to the Court of Common Pleas of Luzerne county: Nos. 438 and 439, to January Term 1869.
    Each of the cases in the court below was a scire facias sur mechanics’ lien, issued July 5th 1867, by Greorge B. Silsbee against J. W. Munger. The cases depended on the same facts. The work for which the lien was entered, September 21st 1866, was done under one contract and the lien had been apportioned; the main question was whether the structure was one or two buildings. The claim set out: — “ Said several adjoining buildings are stores and dwellings combined, of brick, three stories and a half high. Each 25 feet front by 90 feet deep. One of them is situate on lot No. 3, in block No. 22, fronting on Lackawanna avenue, in the city of Scranton. The other of them is situate on lot No. 4, in block No. 22 aforesaid. They are built together and are separated by solid brick wall.”
    The amount was apportioned in the claim at $847.83 on each building.
    The items were charged in the bill of particulars filed with the claim, as having been for the whole structure; they were not separately charged to each building. One of the items was, “Mortar extra $4.00;” another, “Running stucco cornice, $200.00.”
    The following was part of the contract to build, dated July 27th 1865: — ■
    “ Silsbee hereby agrees to build and construct, for the said Munger, all the brick walls to said Munger’s brick building on the foundation now erected on said Munger’s lot; also, to do all the inside plastering to the second and third stories; also, the hall of the lower story, and all other plastering said Munger may desire in said building.”
    On the trial before Dana, J., February 26th 1869, the plaintiff gave in evidence his book of original entries. One item was “ Mortar for Rosenagle $4.00.” The defendant objected to this item, because it did not appear to have been for the defendant, but for another person, and because it was for a gross sum. The evidence was admitted, and a bill of exceptions sealed.

      Another item was “ Running cornice $200.” There was in the book in connection with the account this entry: “ The running cornice charge, altering front piers, putting in fire-places, setting water-table, re-arching windows, mortar steps in rear of building, pointing joints in tier, work for Cone & Lent.”
    This was “ offered in common with proof of the doing of the work, its amount, and of the materials furnished and used on building.” This was objected to by the defendant, admitted and a bill of exceptions sealed.
    The plaintiff called Henry Greddes, who testified:—
    “ I worked on this building; am bricklayer and plasterer; was a cornice run on this building at Mr. Munger’s direction; Mr. Silsbee was to run and 3 centres struck, and the price was to be $200.”
    The evidence' was that the building was erected on distinct subdivisions of a block as set out in the claim filed; that it was 50 feet in front, a brick partition carried through all but the attic, each story 20 feet wide, two halls one for each side, one roof, one attic, a door in third story through the partition, porches on second and third stories front and rear; some of the conveniences were accessible only from one side of the building.
    The defendant, on the 15th of June 1867, mortgaged lot No. 3, and on the 7th of August mortgaged lot No. 4. On the 8th of February 1868, he conveyed lot No. 4.
    There was other evidence on both sides on the question whether the structure was one or two buildings ; the opinion of some witnesses was that it was one building, of others that it was two.
    The defendant’s second point was:—
    “ If the jury believe from the evidence that this building was under one roof, with one attic over the whole, with one stairway wholly-located upon one part, which must necessarily be used to enter any portion of the other part, with one privy wholly located upon one side and intended to be used for both sides of the building, with no exterior line of demarcation showing a division, then the structure is in the present instance but one building, and the plaintiff cannot recover in this suit.”
    The court answered this point as follows:—
    “ We cannot affirm the defendant’s second point, and restrict the jury, in the determination of this question, to only those facts therein specified. The jury in this case, between these parties in which the rights of creditors are not involved, may, in addition to those enumerated in the point, take into consideration all the other facts in evidence bearing upon the question, such as the acts, and declarations verbal and written, of the parties, the sale by the defendant, and delivery of possession of the structure upon and along with lot No. 4 to Mr. Jones, the encumbrance of one part by mortgage, the distinct and several occupation of the stores upon the first floor, the fact of the two lots Nos. 3 and 4, and all the facts relative to the question. The facts stated in this point are well entitled to be considered by the jury, but they are to be considered along with the other relevant facts in the case, and a decision reached not upon a part only, but upon all the evidence pertinent to the inquiry.”
    May 5th 1870,
    The verdict in each scire facias was for the plaintiff for $774.
    The defendant took out writs of error, and assigned for error the answer to his point and the admission of the evidence stated in the bills of exception.

      W. G. Ward and A. Hand, for plaintiff in error.
    — As to the charge: Young v. Chambers, 3 Harris 267; Sergt. Mech. Lien Law 84; Smith v. Nelson, 2 Phila. R. 113; Campbell v. Furniss, Id. 110; Taylor v. Montgomery, 8 Harris 443; Lauman’s Appeal, 8 Barr 473. As to the evidence: Hale v. Ard, 12 Wright 24; Alexander v. Hoffman, 5 W. & S. 384; Nickle v. Baldwin, 4 Id. 290; Petriken v. Baldy, 7 Id. 429 ; Schnader v. Schnader, 2 Casey 384; Shoemaker v. Kellogg, 1 Jones 310; Poultney v. Ross, 1 Dallas 238.

      D. C. Harrington and Willard & Royce, for defendant in error.
    —As to apportioned lien : Acts of March 30th 1831, § 4; June 16th 1836, § 15; April 25th 1850, § 38, Purd. 711, pl. 20-22; Pennock v. Hoover, 5 Rawle 291; Taylor v. Montgomery, 8 Harris 443; Hill’s Est., 3 Penna. Law J. 323; Singerly v. Doerr, 12 P. F. Smith 9.
   The opinion of the court was delivered,

by Thompson, C. J.

— These writs of error bring up the same questions precisely. They arose on the trial of two sci. fas. sur mechanics’ lien. The claim in each case was upon a joint lien and an apportioned claim, and the main question was whether the structure was a single or double building, constituting one or two tenements, and whether it was proper to treat that as a question of law, or of fact and law.

The learned judge below, under the circumstances, regarded it as a mixed question of law and fact, and in this he was undoubtedly right. It has been somewhat tritely said by our own court in a contest about whether the building was a new structure or only a repair, that the court would decide the question when it was easy, but when difficult it was for the jury to decide. The meaning of this was, that when it depended on disputed facts it was a question for the jury and not alone for the court. In the case in hand, the houses were built together, without any external division excepting as the internal structure showed the purpose to be two tenements. The building is occupied separately, as two — was sold and mortgaged separately by the builder, the defendant in the ease. Interiorly it was divided by brick walls on the ground and second floors; each side having its own door, stairway and hall. But because there was a door in the partition on the second floor and a common attic and stairway, the defendant claimed it to be a single building, and therefore that the apportionment of the lien destroyed it.

In this category the learned judge received evidence, not only of the kind of structure, but of the purposes to which the defendant had devoted it, selling one-half to one, and mortgaging the other half to another, and left the question whether a single structure or not to the jury, and they found that it was two buildings.

It is strange that this should be complained of. Whether one or two buildings was a fact, and a fact which might be proved between the owner and the builder. If the former chose to erect a structure, or building, after such a fashion as to leave it doubtful whether one or two distinct buildings were intended, can he complain that this is elucidated by proof? These buildings, in addition to their internal structure and use, were built on separate subdivisions of a larger block or lot, and were numbered 8 and 4 of the subdivisions of that block. It is true, neither this nor any one fact by itself fixed conclusively that the erection was single, hut this, with other facts, and the treatment of the structure by the defendant, the owner, could not fail to fix its character as two distinct tenements, which required the lien to be apportioned. The subsequent acts of the defendant were proper evidence against himself, and served to show what he must have intended from the beginning. I refer to his sale and mortgage of the buildings separately. The acts and sayings are always evidence against a party to a case, if they relate to the subject-matter of the issue. On all this part of the ease the learned judge’s views and charge were sound and unexceptionable.

We see nothing wrong in admitting the entry in the plaintiffs original book of charges against the’buildings of the item Running cornice $200.” The objection was that it was not itemized, and the days or time occupied in doing the work were not set out. A party who has received the benefit of such work, must be hard pressed for an excuse for not paying when obliged. to resort to such an objection. That this work was done, and well done, we may suppose, for we hear of no objection on that score, it was patent on the building. It was there, and the owner has had the advantage of it. But without saying that we might not presume it to be a single item for work in the absence of evidence to the contrary, we see the item in the book was offered in connexion with testimony independently of the book and it was proved, and proved to have been done at the request of the defendant. This relieves the question of all difficulty if any existed. This assignment of error is not sustained.

The exception taken to the charge in the book of “ mortar for Rosenagle $4,” does not seem to have been a proper charge to the buildings. That is its appearance here. It is but $2 against each building, and might be treated as de minimis. We will, however, allow the plaintiff to remit two dollars of the judgment in each case, and affirm the judgments on this condition.

As to the other assignments of error, there is nothing in them, and one of them is fatally defective in its particulars. We need not further notice them.

The judgment in each of these is affirmed.


text:
    Nescopeck Creek Bridge.
    1. The Act of February 24th 1845 (Roads, Bridges, &c., in Luzerne) requiring three viewers only, does not affect the 39th sect, of the General Road Law of June 13th 1836, requiring six persons to inspect bridges.
    2. Inspectors reported deficiencies in the bridge which might be remedied at a cost which they specified, and recommended that the contract price be paid after deducting the cost named. Held, that this was a report against the completion of the bridge according to contract.
    3. The Quarter Sessions directed the amount for deficiencies to be deducted and the balance to be paid with interest from the filing of the report. Held to be correct:
    March 16th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Certiorari to the Court of Quarter Sessions of Luzerne county: No. 35, to January Term 1870.
    By an act passed April 5th 1867, the supervisors of Nescopeck township, Luzerne county, were required to erect stone abutments for a bridge across Nescopeck creek, and to collect a tax for payment of the work. By the same act, the Commissioners of Luzerne county were directed to construct a good superstructure for the. bridge, the work to be performed under the control and direction of the commissioners, in the manner provided by law for the erection of county bridges.
    The commissioners accordingly contracted for the superstructure of the bridge with John Bittenbender and David Schellhammer for $2469, in accordance with plans, specifications, &c.
    On the 18th of December 1868, the contractors petitioned the Court of Quarter Sessions, representing that they had completed the superstructure according to their contract, and prayed the court “ to appoint six fit persons to inspect said bridge or superstructure according to law, and make report,” &c. The court, under the 39th section of the Act of June 13th 1836 (Purd. 877, pl. 61), appointed six men as prayed for, who reported that they found “ that the superstructure of said bridge was not built in entire accordance with the contract and specifications, being deficient in some respects, and that deficiency can be remedied, and the superstructure made entirely stable and secure by putting in a set of iron chord-rods and some additional chord-bolts, which will cost about $112.60, as per estimate hereto attached; and we do further report that in building said superstructure, it became necessary for the contractors to build the same one hundred and twenty-six and a half feet long, instead of one hundred and twenty feet, as provided and contracted for, and that for this additional length of the superstructure the contractors are entitled to an additional compensation of about $112.60, and we are therefore of opinion, and do report that the contractors ought to receive the full consideration-money agreed to be paid in said contract between said contractors and said county commissioners of Luzerne county, for the building of said superstructure of the said bridge.”
    They accompanied their report with a detailed statement of the particular materials, and the labor which would be required to make the bridge “ stable and secure,’'’ with the cost of each item in their estimate, the whole amounting to the sum stated in the report.
    The commissioners filed exceptions to the report: amongst others, because the viewers did not state whether they approved the bridge or not, or whether the bridge was built according to the contract; because they made allowance for work not embraced in the contract, and because “the report is informal and illegal.”
    An act passed February 24th 1845 (Pamph. L. 52), provides, “ That hereafter the number of road and bridge viewers appointed by the Court of Quarter Sessions of the counties of Butler, Allegheny, Luzerne, Lycoming and Clinton shall be three, one of whom shall be a surveyor, if deemed necessary, and every view and review shall be made by the whole number of persons so appointed, a majority of whom shall concur in their report in order to its confirmation by the court.”
    Two principal questions were raised and discussed in the court below : 1. Whether the viewers should have been appointed under the Act of 1836 or under the Act of 1845 ? 2. Whether the report of the viewers was a compliance with the order ?
    The opinion of the Court of Quarter Sessions was delivered by Judge Dana. — He referred to the General Road Law of 1836, and to a number of special Acts of Assembly, similar to the Act of 1845, above given. Amongst others, to an Act of February 11th 1854, relating to roads in Beaver county, &c., which was in the terms of the Act of 1845, with this addition: “ The provisions of this section shall include viewers appointed to inspect bridges under the 39th section of the General Road Law of 1836.” He then said, “An examination of the mode of proceeding by the view and the action of the court, as directed in the Act of 1845, fortifies the conclusion that the road and bridge viewers therein, referred to, are those appointed either to review roads already laid, or to view the routes of contemplated roads, and the sites of intended bridges, and not for the purpose of inspecting and reporting upon completed bridges, with reference to the settlement of questions of compensation to the contractors for erecting the same.”
    May 5th 1870,
    The finding that the contractors were entitled to additional compensation for work not included in the contract was disapproved. The order of the court was:—
    “ After full consideration, we are of the opinion that justice and equity require that there be deducted from the contract sum of two thousand four hundred and sixty-nine dollars, the sum of one hundred and twelve dollars and sixty cents, and that the balance, being two thousand three hundred fifty-six dollars and forty cents, with interest, from the 22d January 1869, the date of filing the report, be paid by the county, agreeably to the terms of the contract.’”
    The county commissioners removed the proceedings to the Supreme Court; there assigning for error the order of the court below.

      S. Jenkins,

    for the commissioners, referred to the various Acts of Assembly, general and special, relating to roads, bridges, &c. As to the allowance of interest, he referred to Luzerne Co. v. Day, 11 Harris 141; Knight v. Reese, 2 Dall. 182; Dietterich v. Heft, 5 Barr 87.

      II. W. Palmer, D. 0. Harrington and W. W. Ketcham, contrá.
    —They referred to same Acts of Assembly, and as to interest, to Lehigh Co. v. Kleckner, 5 W. & S. 186.
   The opinion of the court was delivered,

by Thompson, C. J.

— We entirely concur in opinion with the learned judge below that there is nothing in the Act of the 24th of February 1845, relating to the number of viewers to be appointed by the Quarter Sessions of the counties of Butler, Allegheny, Luzerne, Lycoming and Clinton, which repeals the 39th section of the Act of 13th June 1836, which provides for the appointment by the courts of “six fit persons” to inspect bridges erected by the county, and report thereon according to the provisions of the 41st and other sections of that act. The 1st section of the Act of 1845 does alter and change the Act of 1836 as to the number of viewers to be appointed to view and lay out roads and view the sites of bridges as in the counties mentioned. This change obviously relates to viewers to lay out roads and fix bridge sites, because one of said viewers is required to be a surveyor, and there could be no occasion for this qualification in an inspector of a bridge. Indeed the Act of 1886 does not designate these appointees reviewers, but “ fit persons;” (see section 39), and “the persons appointed;” (see the 41st and 42d sections). It carefully and purposely, no doubt, avoids giving the same designation to them as is given to original viewers. Their true designation would be “inspectors,” for that is their designated duty. We cannot therefore regard a statute whose distinct purpose it is to reduce the number of viewers required to locate a road or fix the site of a bridge, as reducing the number of “ fit persons” to inspect the work done on a bridge after it is claimed to be finished. These duties and functions are entirely dissimilar, as is their designation. The reduction of the number of the former leaves untouched the number of the latter. That the legislature so understood it in this way, we may refer to the Act February 11th 1854, relating to Beaver, Butler and Lawrence counties to show. It is in the very terms of the Act of 1845, about referred to, but with the addition that the “ provisions of the section shall include viewers appointed to inspect bridges under the 39th section of the General Road Law of 1836.” This would have been entirely unnecessary if without it the provisions of that act were supplied by reducing the number of road and bridge site viewers.

We also concur with the learned judge below that the report of the persons appointed to inspect the bridge was substantially a report against the completion of the work according to contract, and of the amount necessary to be deducted to bring it up to the requirements of the contract. Nothing could more clearly show the last matter than a report of the deficiencies, and an itemized report of the cost of the work and materials necessary to supply the deficiencies. These added together, as was done in the report, amounted to $112.60, and showed the deficiency quite as well as would the same sum in round numbers, if not better. The court were informed that the amount ($112.60) mentioned would bring up the bridge to the contract, and it directed that sum to be deducted, and the balance to be paid with interest from the date of filing the report. That was certainly all right. It would not be very equitable for the county to be relieved from accountability for interest, because she chose to suspend payment, and litigate without a cause, as the result of this case shows. No such rule as that exists in her favor.

Order of the Quarter Sessions is affirmed, with costs.


text:
    Cotton and Smith versus Babcock.
    1. Pending a suit on a bill in equity, the parties agreed to submit all matters in variance in the suit to arbitrators “ under the Act of June 16th 1836.” Held, that the submission was not authorized by that act.
    2. The 6th section which relates to pending suits is confined to actions at common law.
    3. A common-law judgment on the equity side of the court is incongruous and irregular.
    4. Parties to a proceeding in equity may refer the case to persons mutually chosen to find and report facts to the court.
    5. On the coming in of the report, it is the duty of the court to make a final decree in the cause, giving to the report all the effect to which it is entitled.
    March 16th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Tioga county: Of January 1869, No. 24.
    On the 5th of November 1859 Stephen Babcock filed a bill in equity against Henry Cotton and Daniel W. Smith. The bill set out that the plaintiff had contracted with the defendants to sell to them 1,000,000 feet of standing timber, on a tract of land designated; and if so much of the kind of timber described in the agreement could not be obtained, the defendants might take it from an adjoining tract belonging to the plaintiff. The bill averred that there was sufficient timber, on the first-named tract to fill the contract, but that notwithstanding the defendants had taken and were taking timber from the other tract. The prayer was, that they might be restrained from taking timber from the second tract. A preliminary injunction was granted by White, P. J. No answer was filed; and on the 1st of December 1859 the parties, by an agreement entitled of the suit in equity, agreed, “ under the provisions of the Act of June 16th 1836, * * * to submit all matters at variance and in controversy in our said suit, and all matters in controversy concerning and about the contract mentioned in said suit” to three arbitrators (named in the agreement) who were to assess the damages, if any, sustained by the plaintiff in consequence of breach of the contract by the defendants. It was further agreed “ that our submission to said award or umpirage be made a rule of and in said court, and hereby respectively bind ourselves to submit to and be finally concluded by the award or umpirage of said referees or a majority of them, under the penalty,” &c.
    On the 30th of April 1864 the arbitrators made an award in favor of the plaintiff for $1317.83. This award was read January 27th 1868, and filed by order of the court. Exceptions were filed by the defendants February 24th 1868. On the 23d of March 1868 a rule was granted to show cause why the award should not be set aside. On the 25th of March, “more than four days having elapsed since reading the award, and no exceptions having been filed, on motion, judgment is entered on the award.” On the 30th of July 1868 the rule to show cause why the award should not be set aside was discharged, White, P. J., delivering the opinion of the court.
    March 21st 1870,
    The defendants took out a writ of error. The assignments of error were to the refusal of the court to set the award aside.

      O. M. Seymour, M. F. Elliott and A. F. Allen, for plaintiff in error.

      E. Sherwood, for defendant in error.
   The opinion of the court was delivered,

by Sharswood, J.

— This case was commenced in the court below by a bill in equity praying an injunction to stay waste. A preliminary injunction was awarded. Pending this and before any answer, the parties, by writing, agreed “ to submit all matters at variance and in controversy in the said suit, and all matters in controversy concerning and about the contract mentioned in said1 suit,” to three persons mutually chosen as referees. This agreement was expressed, to be “ under the provisions of the Act of Assembly of June 16th 1836,” Pamph. L. 717. We are of the opinion that it was not authorized by any section of that act. The 6th section, which is the one which relates to pending suits, is confined to actions at common law. The award “shall be deemed and taken to be as available in law as the verdict of a jury, and the party in whose favor such report shall be made, whether plaintiff or defendant, shall have judgment thereon, and the like process for the recovery thereof as on a verdict in an action commenced by such party.” A common-law judgment upon the equity side of the court is altogether incongruous and irregular. Nor can the reference be sustained under the 1st section, because it does not contain an agreement that it shall be made “ a rule of such court having jurisdiction as the parties shall choose,” and this has been held essential under that section: Benjamin v. Benjamin, 5 W. & S. 562. The judgment on this award, if it can stand, can only be supported as a judgment by virtue of the Act of 1836. It cann'ot be considered as adopted by the court and entered as a decree in equity. If so considered, it could be removed to this court only by appeal and not by writ of error. Parties to a proceeding upon the equity side of the court, no doubt, may refer the case to persons mutually chosen, to find and report facts to the court, whether called referees or masters is immaterial. There is nothing in the name. But on the coming in of the report, it is the duty of the court, giving to it all the effect to which it is justly entitled, to proceed to make a final decree in the cause. The judgment then entered in the court below was unauthorized and erroneous.

Judgment reversed, and record remitted for further proceedings. ■