text:
    Philadelphia and Reading Railroad Co. versus Schultz.
    1. It is a rule of law that if reasonable precautions are taken in providing locomotives with those appliances which are deemed best for the prevention of damage by fire, the company or persons using them cannot be made liable though they fire every rod of the country through which they run.
    2. In an action against a railroad company for damages by fire, alleged to have been caused by sparks emitted from a locomotive, the company gave evidence that the locomotive was furnished with an approved spark-arrester. In rebuttal the court allowed the plaintiff to give evidence that numerous fires had been ignited by sparks from this same engine. Held, that the question of negligence was properly submitted to the j ury.
    3. It is not contributory negligence for the owner of land along the line of a railroad to allow the accumulation of leaves, brushwood and other rubbish on his property. Such an owner of property must run the risk of fires necessarily following the lawful and proper use of the railroad company’s locomotives; but that he must guard in any way or by any means against the improper or unlawful use of the locomotives is a proposition that cannot be sustained.
    March 1st 1880.
    Before Sharswood, O. J., Mercur, Goiv don, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, of Lehigh county: Of January Term 1879, No. 143.
    Case by Reuben Schultz against the Philadelphia and Reading Railroad Company to recover damages for injury done by fire to the woodland, rails and timber of the plaintiff, by sparks alleged to have been emitted from one of the locomotive-engines of defendant.
    The plaintiff’s woodland lies along the track of the Perldomen railroad, of which the defendant is the lessee. On the 11th of April 1876, this woodland was fired by sparks from the engine of what was known as the 10.30 passenger train. It appeared that the fire was alighted among some dry leaves and rubbish on the bank of a cut of the railroad, and thence extended through rubbish and brushwood lying on the land of Anthony Mechlin, which adjoined the railroad, and thence to the woodland cf the plaintiff, which adjoined Mechlin’s, where it destroyed or damaged a quantity of fence rails, cord wood and standing timber. At the point where the railroad runs through the cut the grade is a heavy one, and it appeared that the engine occasionally emitted sparks in passing this point, but it was in evidence, on the part of defendant, that the engine was furnished with an approved spark-arrester, and that it was examined on the day of the fire, when it was found to be in good condition, and that it so continued for months afterwards. The plaintiff, in rebuttal, gave evidence to show that for two weeks before the occurrence this particular engine had fired property along the line of the railroad; that every day when said engine passed there were fires; that it threw out quantities of very large sparks, and that immediately after this fire on Schultz’s place, said engine ceased to throw out sparks, and that no other fire occurred thereafter along the road at that point from any passing trains.
    The defendant submitted, among others, the following point, to which is appended the answer of the court:
    If the plaintiff in this case, and the owners of the strip of land between his property and the railroad, permitted leaves and brush to accumulate upon their property negligently, and in such a way as that they would be likely to be ignited by sparks thrown from an engine properly operated and provided with a safe and proper spark-arrester, and by so doing contributed to the fire, there can be no recovery, and your verdict should be for the defendant.
    Ans. “ This point is answered in the general charge. As I view this case I decline this instruction.”
    In the general charge, the court, Harvey, P. J., inter alia, said:
    “You will observe, therefore, that although you find from the proof in the case that prudence and care have been used in the selection of a spark-arrester, and that the one in use upon the locomotive drawing the 10.30 train was of the most approved kind then in general use, was this arrester on that day in perfect order ? Eor if it was not — if it was defective — if it did not prevent the throwing out of sparks to the same extent as perfect arresters of the same sort do when in perfect order, and the plaintiff has shown this to your satisfaction, then he has shown a violation of a legal duty on the part of the defendant, which makes it responsible for all damages that were immediate consequences thereof.”
    The verdict was for plaintiff for $666.96, and after judgment, defendant took this writ, and alleged, inter alia, that the court erred in the answer to the above point, and in the foregoing portion of the charge.

      R. E. Wright Son, for plaintiff in error.
    There is no adjudication, as far as we have been able to learn, to sustain the position taken by the court in this case, viz., that the owner of land adjoining railroads is not bound to exercise ordinary care to prevent fire through the accumulations of rubbish where the engines of the company are properly equipped and properly operated. The question whether the plaintiff was not guilty of contributory negligence should, therefore, have been submitted to the jury: Ohio and Miss. Railroad Co. v. Shaefelt, 47 Ill. 497 ; Illinois Central Railroad Co. v. Nunn, 51 Id. 78 ; Kesee v. Chicago and Northwestern Railroad Co., 30 Iowa 78; Kellogg v. Chicago and Northwestern Railroad Co., 26 Wis. 223; Coates v. Missouri Railroad Co., 61 Mo. 38.
    Upon the question of the character of the spark-arrester there was no testimony to sustain the allegations of the plaintiff. The defendant proved that it was the best spark-arrester in known use. There is not one word of testimony in the case to contradict it directly or inferentially. Yet the court submitted the question to the jury, and asked them to find whether it was not the best in known practical use; and, if it was not, then the defendant would be guilty of negligence. There was certainly not sufficient evidence to warrant the submission of the question to the jury : Philadelphia and Reading Railroad Co. v. Yerger, 23 P. F. Smith 124.

      John Rupp, for defendant in error.
    The use of a locomotive with an imperfect spark-arrester is negligence on the part of a railroad company: Frankford and Bristol Turnpike Co. v. Philadelphia and Trenton Railroad Co., 4 P. F. Smith 345.
    A railroad company is responsible for fires caused by the careless emission of sparks in the running of their engines : Huyett v. Philadelphia and Reading Railroad Co., 11 Harris 373. And is bound to keep its track and contiguous land clear of materials likely to be ignited from sparks issuing from its locomotives, properly constructed and driven: Salmon v. Del., Lack, and Western Railroad Co., 14 Am. Law Reg. 554; Flynn v. Railroad Co., 40 Cal. 14 ; Pennsylvania Railroad Co. v. Hope, 30 P. F. Smith 873. A person owning land contiguous to a railway is not obliged to keep the leaves, falling from his trees, from being carried by the wind to such railway, nor to keep his lands clear of combustible matter; nor, on failure to perform such acts, does he become contributory to the production of a fire originating in the carelessness, on its own land, of the railroad company: Salmon v. Del. and Lack. Railroad Co., supra; Lehigh Valley Railroad Co. v.
      McKean, 9 Norris 122; Philadelphia and Reading Railroad Co. v. Hendrickson, 30 P. F. Smith 182.
    The court could not say in the case at bar, as a matter of law, that the fact of this engine setting fire to property for miles along the road every day, for a week or more, and on the very day of this fire in question, setting fire to the property of several other persons about the same time and place, was not evidence of negligence, either in the use of an imperfect spark-arrester, or the unskilful, careless and improper management of the engine by the servants and employees of the company: Lackawanna and Bloomsburg Railroad Co. v. Doak et al., 2 P. F. Smith 379; Pennsylvania Railroad Co. v. Stranahan, 29 Id. 105; Huyett v. Philadelphia and Reading Railroad Co., 11 Harris 373. [See Jennings v. Pennsylvania Railroad Co., ante, 337. — Rep.]
   Mr. Justice Gordon

delivered the opinion of the court, May 3d 1880.

Complaint is made by the plaintiff in error, defendant below, in that, though proof was made that the locomotive from which the plaintiff’s property was fired, was furnished with an approved spark arrester, yet the court submitted the question of negligence to the jury. This, however, was necessitated by the fact, that the testimony of the plaintiff was in serious conflict with the allegation above stated. It is indeed true, that a locomotive cannot be run without fire; that human ingenuity has not as yet devised any contrivance which will wholly arrest sparks; so, if these, now so important vehicles, are to be run .at all, more or less damage in. the way of fire, must result from them. Therefore, the rule of law is, and must be, that if reasonable precautions are taken in providing them with those appliances which are deemed best for the prevention of such damage, the company or persons using them, cannot be made liable though they fire every rod of the country through which they run. In accordance with this now so well established rule of law, we have but recently held, that the mere fact of the firing of a property will not, of itself, prove negligence, where it is shown that approved spark-arresters were in use: Jennings v. The Railroad Co., ante, p. 337.

But unfortunately for the defendant. in this case, the plaintiff furnished abundant proof, that the engine in question, either was not furnished with the necessary spark-arresting appliances, or, if so, they had been tampered with by the persons in charge thereof. On any other theory it is unaccountable that this locomotive alone, of all run upon the road, should have fired the country through which it passed almost daily, for the period of two weeks; and that it should have become so notorious in. this respect that, as one of the witnesses says, “We watched for that train every day, so that we might be ready to put out fire.” Moreover, two of plaintiff’s witnesses say, that this engine threw out sparks as large as a hickory nut; and there is the further significant testimony that, shortly after the Schultz fire, this locomotive ceased to be dangerous, or as one of the witnesses said, “After this fire we had rest.”

This testimony was ample, if the jury believed it, to rebut that the defendant, and the court could do nothing' else than submit it.

Again, complaint is made that the court refused to instruct the jury, that if either Schultz, or the owner of the strip lying between his land and the railroad, allowed the accumulation of dry leaves, brushwood and other rubbish, on his property, which would be readily fired by sparks ordinarily issuing from a properly equipped locomotive, that might be regarded as contributory negligence. This was certainly an extraordinary proposition; first, because the learned judge throughout the trial held, that if the defendant’s locomotive was properly equipped with spark-arresting appliances, the plaintiff could not recover whether he had been careful or negligent; second, because it is an attempt to impose upon property owners along the line of a railroad, duties unknown and unnecessary before the building of the road; and third, if this proposition means anything, it means, that upon such property owners devolves the duty of guarding against the negligence of railroad companies and their servants, but this is simply absurd. The plaintiff was obliged to run the risk of fires necessarily following the proper and lawful use of the defendant’s locomotives ; and if he was negligent in the protection of his property against such risk, the loss resulting therefrom would be his own; he could recover no compensation, not indeed because of his negligence, but because there would be no liability on part of the railroad company ; but that he must guard, in any way, or by any means, against the improper and unlawful use of the locomotive, is a proposition that cannot be sustained. The case of the Railroad Co. v. Hendrickson, 30 P. F. Smith 182, is in point; and this question is so well stated, and so clearly disposed of, in the opinion delivered in that ease, by Chief Justice Agnew, that further comment or explanation is unnecessary.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Scholl versus Gerhab.
    1. The question of the validity of a mechanic’s lien is to he taken advantage of by demurrer or motion to strike off the lien. It is not put in issue by the pleas of non assumpsit, payment with leave, &c., and advantage cannot be thus taken of its invalidity in the trial of issues of fact before a jury.
    2. A bill of particulars was made part of a mechanic’s claim consisting of forty-six items, commencing with “ January I7th 1876,” and continuing regularly in chronological order, the last item being under date “October 27th,” without specifying the year. Held, that this was a sufficient compliance with the law.
    March 1st 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Bucks county: Of January Term 1878, No. 40.
    Scire facias sur mechanics’ lien by John Gerhab against Benjamin Scholl, owner or reputed owner and contractor, with notice to Daniel M. Kramer, terre-tenant. Defendant pleaded non assumpsit, payment with leave to give special matter in evidence.
    The lien was filed April 16th 1877, and was for materials, consisting of lumber, doors, sashes, mouldings, &c., &c., furnished for and about the erection and construction of a dwelling-house. The date of the first item furnished was January 17th 1876, and the dates of the last items were October 19th and October 27th. The amount for which the lien was filed was $602.44.
    From the evidence on the part of the plaintiff it appeared that in January 1876, Scholl bought from Gerhab, who was a dealer in lumber, the materials for a house he was about to construct. The lumber was delivered to Scholl, according to order, upon the different dates set out in the bill of particulars. Gerhab agreed to give Scholl six months’ credit for the amount of the bill. On January 6th 1877, Scholl gave Gerhab his note in payment which on April 9th 1877, was protested.
    The plaintiff offered in evidence the lien on which the scire facias issued.
    Defendant objected that it was not in accordance with the requirement of the act in that it fails to aver the time when the materials were furnished, or that they were furnished within six months last past.
    The court overruled the objection. It was alleged on the part of the defendant that the house was entirely finished by the first of August 1876, more than eight months before the lien was filed, and about two months and a half before the last two items of October 19th and 27th, contained in the bill of particulars, were furnished, and that the same never went into the building or were furnished on the credit of it. It was a double house, and occupied by two tenants, named respectively Haines and Mitch. Haines moved in on the 25th of July 1876. He testified everything was then done but the hanging of one door in a room partitioned off on the porch, which was hung July 3'lst, and. no work was done after that time, the house being entirely finished. Mitch moved into his side of the house on the 14th of September 1876, and testified he found everything finished. The carpenters, three in number, testified that the house was entirely finished, except the hanging of the door mentioned by Haines, on the 25th of July 1876, and that door was hung on the 31st of July 1876; and further, that on the 31st of July 1876, the siding, moulding, transom, sash and doors were all in place, and the house needed nothing more.
    In rebuttal the plaintiff called Enos Dotweiler, a salesman of Glerhab, and offered to prove by him that he sold lumber to Benjamin Scholl on the 19th and 27th of October 1876, and at the time he sold it to him Scholl stated that it was for this house upon which the lien is that is now in disputo, or for a kitchen or shanty attached to the house, and a part of the house, to be followed by evidence that Scholl said yesterday that he purchased the materials charged on the 19th and 27th of October at that time for the building upon which this lien was entered.
    Defendant objected: 1. That it is not competent to extend the right of the plaintiff to file a lien beyond six months by declarations of the original owner of the property, made after the house was completed, that it was still in process of erection. 2. That it is not competent to give any declarations of the original owner after he had parted with the title to the property, in the absence of his vendor, going to show his liability under the lien and more than six months after the last alleged date. 3. That this evidence is not in rebuttal, and is irrelevant.
    Defendant moved that Kramer be admitted as a party defendant to defend, averring that he acquired title to the building, against which the lien is filed, by conveyance from the defendant before the filing thereof.
    Plaintiff objected, upon the ground that the terro-tenant had no standing in court, the jury not having been sworn as to him, and that the scire facias must conform to the parties to the lien.
    The court sustained the motion so far as to permit Kramer to appear and defend his interest in the premises, and directed that the name of the party defendant, as now entered on the record, be amended by adding thereto the words, “With notice to Daniel M. Kramer, terre-tenant.”
    Defendant, in support of his title to the premises,- offered in evidence, deed of Benjamin Scholl and wife to Daniel M. Kramer, dated 11th April 1877, acknowledged same day, recorded 23d April 1877, for the premises in question.
    Plaintiff resumed and renewed previous offer. Defendant still objected for the reasons before stated. The court sustained the offer so far as to allow evidence to be given of the declarations of the defendant during the time he held the title to the premises, and before his conveyance to Kramer, but that declarations made since that time could not be received except for the purpose of contradicting him, and thus affecting his credibility as a witness.
    The verdict was for the plaintiff for $629.54 and costs. The defendants took this writ and alleged that the court erred, inter alia, in. admitting the above evidence.

      Greorge Ross and L. L. James, for plaintiff in error.
    The lien does not aver when the materials were furnished, or that they were furnished within six months from the entry of the claim. Nor does it contain anything to identify it with this particular building, nor to show whether the dates of October 19th and 27th are in the year 1876 or 1877. These were fatal defects in the claim : Lehman v. Thomas, 5 W. & S. 262; McClintock v. Rush, 13 P. F. Smith 203. In the admission of Detweiler’s testimony there was clearly error. Taken in the strongest light in which it can be viewed, it was evidence simply of an intention on the part of Scholl to make an addition to his house, which could have been as well done twenty years afterwards as then, and the furnishing of materials for which, would simply have created a right of lien on such alteration or addition. The admission, of these naked declarations, unaccompanied by proof, or an offer to prove as- an independent fact that the house was not then finished, was the recognition of a principle which would enable the owner of a building, by parol, to extend indefinitely the statutory period in which the lien may be filed, to the prejudice of the rights of an innocent purchaser, and throw wide open the door for the perpetration of fraud. The fact was undisputed that the house -really was finished, and therefore the whole testimony of Detweiler in that regard was irrelevant. “ Materials furnished after the building is finished cannot create a lienthe case of the Olympic Theatre, 2 Brown 275.

      Nathan C. James, J. Monroe Shellenberger and G. & H. Lear, for defendant in error.
    The sufficiency of the claim must be determined by the court, and can arise only on demurrer or a motion to strike off the lien : Lybrandt v. Eberly, 12 Casey 347 ; Howell v. The City of Philadelphia, 2 Wright 471. When the plea in a scire facias on a mechanic’s lien was no lien, no question as to the sufficiency of the lien could arise on the trial of issues of fact: Lee v. Burke, 16 P. F. Smith 336. Detweiler was in the employment off the plaintiff in the sale of lumber. The sale was to the owner and builder of the house. The testimony was to prove that the owner said it wa's to finish the house. The question before the jury was whether the house had been finished before that time. To prove that, by the admissions of the owner, was not only evidence, but the best evidence on the issue of fact.
   Mr. Justice Sterrett

delivered the opinion of the court, May 3d 1880.

The validity of the mechanics lien or claim upon which the scire facias was based, was not put in issue by the pleading, and hence there was no error in permitting it to go to the jury in connection with the testimony which had been given to prove the sale and delivery of the materials specified in the claim as filed. The pleas were non assumpsit, and payment with leave to give special matter in evidence. It was held in Lewis v. Morgan, 11 S. & R. 234, that on a plea of payment with leave, &e., advantage could not be taken of the invalidity of the lien; that the plea virtually admitted the averments contained in the scire facias, and put the defence on collateral grounds. It is there said, that as an equitable plea it makes room for what would sustain a bill in equity, and as a legal plea it lets in proof of direct payment, or whatever 'may be equivalent thereto; but, in every such defence, whether legal or equitable, the claim is not denied on original grounds. The subject of pleading to a scire facias on a mechanic’s lien, was considered in Lee v. Burke, 16 P. F. Smith 336, in which the pleas were, “ no lien, payment, set off with leave;” and it was held that no question as to the sufficiency of the claim upon its face could properly arise upon the trial of issues of fact.

The plea of non assumpsit was in effect a denial that the defendant against whom the lien was filed, both as owner and contractor, had either ordered or agreed to pay for the material. To meet this the plaintiff introduced testimony to prove the sale and delivery to the defendant for the building against which'the lien was filed. The specific objection to the lien was that it failed “ to aver the time when the materials were furnished, or that they were furnished within six months last past.” The authorities all agree that a question of law such as this should be taken advantage of by demurrer, or motion to strike off the lien, and not in the trial of issues of fact before a jury. But, aside from the form in which the court was asked to pass upon the alleged defects in the lien, the objections were not well taken. In t'he body of the claim reference is made to the annexed statement, setting forth “ particularly the nature and kind of materials furnished, and the time when the same were furnished;” and it is subsequently averred that “the said claimant hereto annexes as part of said lien a detailed statement, exhibiting the amount or sum due him, and the time when the said materials were furnished.” The bill of particulars, consisting of forty-six items, thus connected with and made part of the claim, commences with “ January 17th 1876,” and continues regularly in .chronological order to the last item under date, October 27th 1876. This was a sufficient compliance with the requirements of the act. Any one examining the claim, as thus presented, would readily understand when the several items from the first to the last were furnished.

The second assignment of error is not sustained. Enos Detweiler, an employee of Gerhab, was called to prove that when Scholl obtained the German siding and other material, on October 19th and 27th 1876, he stated it was for the house against which the lien was filed. At that time Scholl was the owner of the property, and his admissions under the circumstances were certainly competent as tending to prove not only that the building was not then finished, but also that the materials then procured by him were furnished for the building and on its credit. These were questions involved in the issue upon which the jury had to pass. The terretenant who was admitted to defend pro interesse suo, did not acquire title until two weeks after the alleged admissions were made. The offer was properly limited to proof of declarations made by Scholl during the time he owned the premises, and before the date of the conveyance to Kramer.

Judgment- affirmed.


author: Mr. Justice Trunkey

text:
    Marsteller versus Marsteller.
    1. The Statute of Limitations does not begin to run until a right of action is complete. A cause of action does not exist, unless there be a person in existence capable of suing or being sued.
    2. The rule is, that the statute begins to run at the date suit may be commenced, and once begun it is not stayed by a party’s death. If no action accrued prior to the death, none accrues until grant of administration and the statute runs from such grant.
    3. In an action on a simple contract, it is not required that the amount of the debt should be stated in the praecipe or the summons. The verdict may be for a sum not exceeding that named in the declaration.
    • 4. In such an action, any writing that contains evidence pertinent to the issue, whether will_ or mortgage, is admissible, although not set forth in the narr., as the claim is not grounded on a writing.
    March 2d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Lehigh county: Of January Term 1880, No. 89.
    Debt by William H. and Oliver F. Marsteller, administrators of Sarah Elweina Marsteller, deceased, against Henry Franklin Marsteller.
    The plaintiffs were the sons of the decedent, who died intestate in 1864. The defendant was their father. Letters of administration were granted to the plaintiffs in 1876, when this action was brought. Neither the praecipe nor the writ recited the specific amount of the debt.
    The first count of the narr. averred an indebtedness of $10,000 “ for work and labor, care and diligence performed and bestowed for the said defendant at his special instance and request.”
    The second count, that the intestate “ lent to the defendant, and that the said defendant borrowed a large sum of money, the sum of $10,000,” &c.
    The third count, that the intestate “laid out and expended $10,000 at the special instance and request of the defendant,” &c.
    The fourth count, that the defendant “ had and received to the use of the intestate $10,000 to be paid, &c., when he should thereafter be requested,” &c. The time in all four of the counts was laid as of January 1st 1875.
    To this narr. the defendant below entered the pleas of nil debet; the Statute of Limitations, because suit was not brought within six years from the death of the intestate, and the special plea that the plaintiffs could not recover, because the summons did not set forth the sum demanded.
    At the trial the plaintiffs offered in evidence the will of Peter Smoyer, the father of plaintiffs’ intestate, dated November 26th 1842, devising thirty-three acres of land and bequeathing $500 to his daughter Elweina. Objected to, because the plaintiffs have brought an action of debt, and have so declared, and because the will is not set forth in the narr. The court overruled the objections and admitted the will. (Fifth assignment of error.)
    The plaintiffs also offered in evidence the record of a mortgage by Henry Franklin Marsteller to Lovina Marsteller, his wife, dated the 5th of April 1856, to secure the payment of bonds of $5000, payable on the 1st day of April 1857, with interest from date, with entry of satisfaction of the same on the margin, January 31st, with no year attached to it, signed by Lovina Marsteller, and acknowledged before the recorder. Defendant objected to the offer of record of mortgage under the pleadings as inadmissible, and as not being declared upon in the narr. Objections overruled. (Sixth assignment of error.)
    There was evidence that in 1850 defendant and his wife had sold the land devised by decedent’s father, and that when defendant acquired other property he gave his wife a mortgage thereon ; that in 1874, ton years after the death of his wife, the' defendant had admitted his previous indebtedness to her. and had mentioned a judg ment note which he had given to her, and which he had destroyed after her death. There was also evidence that this note had been given after the decedent had satisfied the mortgage, and that it was given to secure the same debt. When their mother died in 1864, the plaintiffs were fourteen and twelve years of age respectively. There were also three other children whose ages did not appear. There was evidence that the decedent had declared that she had made a gift of the property to the defendant. The defendant submitted, inter alia, the following points, to which are appended the answers of the court:
    2. Under the pleadings (no sum being stated in the writ) the plaintiffs cannot recover.
    Ans. “We answer that point in the negative.” (First assignment of error.)
    4. The plaintiffs cannot recover, because of the bar of the Statute of Limitations.
    Ans. “ This point is also answered in the negative. It is contended by the defendant, that because more than six years have gone by from the time of the death of Mrs. Marsteller up to the time of the bringing of this suit, the plaintiffs cannot recover in this case. We merely say for the- purposes of this case that we cannot affirm this point, and that the Statute of Limitations is not applicable to the facts of this case. (Third assignment of error.)
    In the general charge the court, Meyers, P. J., inter alia, said: “ The plaintiffs in this case contend that in 1842 Peter Smoyer, who was the father of plaintiffs’ intestate, made a will and devised some property to his daughter, the wife of the defendant; that this devise consisted of real estate, upon which a certain valuation was placed by the testator; that after the death of Peter Smoyer, which took place before 1850 — because we find from the evidence that the will was admitted to probate in April 1850 — this real estate was sold by the defendant and his wife, and that subsequently, when the defendant acquired some other real estate, he gave to his wife, on or about, the 5th of April 1856, a bond and mortgage for $5000, which was payable on the 1st of April 1867. The fact of this mortgage is undisputed. The record is in evidence, and, So far as the identity of the parties is concerned, no evidence has been offered to contradict it.” (Eleventh and twelfth assignments of error.)
    The verdict was for plaintiffs for $5000, with interest from January 1866 to May 6th 1879 — total, $8980; and, after judgment thereon', the defendant took this writ, and alleged that the court erred, inter alia, as set forth in the foregoing assignments of error.

      Thomas B. Metzger and A. B. Longaker, for plaintiffs in error.
    In Pennsylvania, the judgment in debt is for the whole demand, if the verdict is not greater than the sum mentioned in the writ; but when the debt and interest exceed that sum, it should be in debt for the sum demanded and in damages for the residue: Reed v. Pedan, 8 S. & R. 263; Friedly v. Scheetz, 9 Id. 156; Graff v. Graybill, 1 Watts 428. These authorities, show that the sum claimed by the suitor must be contained in the writ; and if the sum must be named in the writ, why not in the preecipe for the writ ? In the case at bar, neither the praecipe, writ, nor narr. states the sum demanded. The evidence adduced at the trial does not show the sum demanded, yet the court below allowed the jury to assess a judgment against the defendant for the sum of §8980. The minority of the intestate’s children, it is claimed, tolls the statute because no administration could have been raised by them. As to three of these children, there is no evidence as to their ages. For aught the court or jury could know, these three may have been of age at the death of their mother, or at least very soon thereafter. But however this may be, it has been decided that want of administration does not toll the statute: Man v. Warner, 4 Whart. 454; Campbell v. Fleming, 13 P. F. Smith 245; Byrd v. Byrd, 28 Miss. 144; Brown v. Merrick, 16 Ark. 612; Tynan v. Walker, 35 Cal. 634; Baker v. Brown, 18 Ill. 91.
    There was no evidence showing that the defendant ever gave to his wife a mortgage of §5000, or of any other amount, about April 5th 1856, or at any other time. The plaintiffs’ offer boldly asserted that the defendant, Henry Franklin Marsteller, gave to Lovina, his wife, a mortgage dated April 5th 1856 for §5000. The mortgage itself shows that one Franklin Marsteller gave to Levi Marsteller of that date a mortgage of §5000. Dehors the offer and the instrument itself, there is no testimony showing that Sarah E. Mars-teller, the plaintiffs’ intestate, is or was intended to be Levi Mars-teller or Lovina Marsteller ; nor is the party of the first part recited to be the wife of the mortgagor. The mortgage throughout, when it describes the party of the second part, uses the masculine gender, and denominates the person intended as him or his heirs and assigns. Surely this offer was inadmissible under the pleadings.

      Edward Harvey and C. J. Erdman, for defendant in error.
    In debt on simple contract, express or implied, to pay money in consideration of a precedent debt or duty, the subject-matter of the debt is to be described precisely as in the common counts in assumpsit; * * * and it is not necessary to set forth the nature or particulars of the debt with more precision than in that action: 1 Chitty on Pleading *361-2. There is no rule requiring the narr. to exhibit the proof to be adduced. During the lifetime of the wife she was incapacitated from suing her husband to recover the loan. No right of action ever accrued to her. There was not only no obligation to sue, but actually no capacity: Kutz’s Appeal, 4 Wright 90; Towers v. Hagner, 3 Whart. 48. As no cause of action accrued to her during her lifetime, to whom could it accrue after her death ? It is absolutely necessary that some one have the right of action. If no administration was had there was no legal representative against whom the statute could run. The right of action must reside in some one before the statute can run:
      Andrew’s Adm’r v. Hartford and New Haven Railroad Co., 34 Conn. 57.
   Mr. Justice Trunkey

delivered the opinion of the court, May 3d 1880.

Sarah E. Marsteller died in 1864, leaving a husband and five children surviving. Letters of administration upon her estate were issued in 1876, and in the same year, this action was commenced to recover money she had loaned to her husband, the defendant. He alleges, that the court erred in refusing his point, that “ the plaintiff cannot recover because of the bar of the Statute of Limitations and this is the chief subject presented in the numerous assignments.

This point depends on the question when the right of action accrued; for until then, in those cases where the remedy is suspended, the statute does not begin to run. Although the debt existed at the time of the loan, yet the remedy was postponed until the death of the husband. In contemplation of law, the wife is scarcely considered to have a separate existence; she and her husband constitute but one person, and the unity of persons is the source from which her disability to maintain suit is derived: Towers v. Hagner, 3 Whart. 48. There the action was by the widow against the executor to recover for money she had loaned her husband in his lifetime, and it was held the statute did not begin to run until his death. The same principle was applied in Kutz’s Appeal, 4 Wright 90, where a married woman, in distribution of the assigned estate of a firm of which her husband was a partner, was allowed the principal and interest of money she had loaned the firm, although by the terms of the loan, the money was due eleven years before the assignment. Nothing in the recent statutes, securing the rights of married women, affects the question; and, therefore, the right of action did not accrue in the lifetime of Mrs. Marsteller. This rule prevails where the remedy is postponed for other cause than disability of person. The remedy, not the debt, is regulated by statute. Until the cause of the particular action which the defendant sets up the statute to bar has arisen, until the right is complete to institute that action, the statute does not begin to run. Thus, a tax collector is prohibited bringing suit within two years from the date of his warrant, and though the tax was due and collectible on the warrant within its life, against the action allowed afterwards, the Statute of Limitations begins to run from the date it could have been commenced: Wickersham v. Russell, 1 P. F. Smith 71.

A cause of action does not exist, unless there be a person in existence capable of suing, or of being sued. When one receives money belonging to the estate of an intestate, after his death and before administration granted, the statute runs not from the date of the receipt, but from the grant of administration: Cary v. Stephenson, Skin. 555; Salk. 422. Hope, holding bills, died before their acceptance, and they being presented through an unauthorized channel, prior to grant of administration, were accepted: held that the Statute of Limitations began to run at the date of the grant, not the date of acceptance or payment of the bills : Murray v. East India Co., 5 B. & Ad. 204. Like doctrine is maintained in Douglass v. Forrest, 4 Bing. 702, and Buckland v. Ford, 5 Barb. 393. In Levering v. Rittenhouse, 4 Whart. 130, it is said, that if a surety pays the debt of his principal after the latter’s death, and before letters of administration, the Statute of Limitations does not begin to run until letters are taken out; that it is only where the creditor may, and has a right to sue, that the statute commences running. But if the surety paid the debt in the lifetime of his principal, the statute commenced to run, and his subsequent death would not stop it. The rule is, that the statute begins to run at the date suit may be commenced; once begun it is not stayed by a party’s death; if no action accrued prior to the death, none accrues till grant of administration, and the statute runs from such grant. The plaintiff in error refers to Man v. Warner, 4 Whart. 455, and Campbell v. Fleming, 13 P. F. Smith 245; but these eases accord with the rule as stated. In the former, the replication showed, that the executors “ carried on and continued the business of the said decedent, Rom the time of the decease of said decedent down to the suing out of the writ,” which the demurrer admitted; and hence it is plain that the note, which became due after the decedent’s death and more than six years before suit, did not mature till after the letters were issued to the executors. In Campbell v. Fleming, the statute began to run before the decedent’s death.

The children of Mrs. Marsteller have no right of action to recover this money from the defendant, whether they be infants or of full age, and no question of adding one disability to another arises. Nor is it now at all material, whether the defendant became an executor de- son tort — he is answering an action brought by the lawful administrators, for recovery of his personal debt for money he borrowed in the decedent’s lifetime.

It can scarcely be required to specially note any of the remaining alleged errors, except the sixth assignment. The praecipe is in the common form, given in either Graydon or Dunlop, and the summons is as prescribed by the Act of 1836, which does not require the amount of the debt to be stated therein. This action is on simple contract, and the verdict may well be for a sum not exceeding that named in the declaration. Any writing that contains evidence pertinent to the issue, whether will or mortgage, is admissible, though not set forth in the narr. — the claim is not grounded on a writing.

The sixth specification of error is to the admission of the record of mortgage, dated April 5th 1856, to secure the payment of $5000, due April 1st 1857,.with entry of satisfaction by “Lovina Mars-teller,” the offer stating the mortgage was by Henry Franklin Marsteller to Lovina Marsteller, his wife. “Defendant objected to the offer of record of mortgage under the pleadings as inadmissible, and as not being declared upon in the narr.” Here, he will be confined to that objection; Mills v. Buchanan, 2 Harris 59; Fidler v. Hershey, 9 Norris 363. It was an implied admission that he gave the mortgage to his wife, and that she entered the satisfaction. He made the point expressly, that it was inadmissible under the pleadings — that excluded inference that he had other objection. Therefore, the court rightly treated the mortgage as an undisputed fact, and properly referred to its contents in the instructions to the jury. They were bound to consider it in connection with the other testimony; uncontradicted, it certainly showed that when it was given-, he owed his wife $5000.

We are of opinion, that there was sufficient testimony to submit to the jury, and that the charge of the court was as favorable to the defendant as he had right to demand.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Donahue et al. versus Connor.
    1. A sub-contractor brought an action against the contractor who employed him, for certain expenditures which he alleged his employer had authorized him to make beyond the contract price. He testified as to the amount paid his laborers, and also the amount of his store and board bills. He then offered the pay-roll on which these items appeared. Some of the entries were made by the plaintiff and some by his assistant. The roll, under objection, was admitted in evidence. Held, that while the roll was not competent as a book of original entries, and did not charge the defendant and was res inter alios acta, it was sufficient to entitle it to go to the jury as corroborative of the plaintiff’s testimony and his statement of the amount expended.
    2. The defendant claimed that there was only a certain amount due plaintiff when he completed his contract, which the plaintiff denied and claimed a larger sum. Held, that it was competent for the defendant to show, that in a prior judicial proceeding the plaintiff had only claimed the amount named by defendant, and that he had called witnesses to prove it.
    3. Per Paxson, J. — “ It would greatly abridge the labors of this court in many cases, if assignments of error to the exclusion or admission of evidence would set forth the name of the witness. When the testimony is voluminous, it is no small labor sometimes to find the proper reference in the bill of exceptions.”
    March 2d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J.,’absent.
    Error to the Court of Common Pleas of Lehigh county: Of January Term 1880, No. 160.

      Assumpsit by William J. Connor against John Donahue and John Shields, trading as Donahue & Shields. The suit, as originally commenced, was in foreign attachment. The declaration was filed with the common counts, in assumpsit, to which the defendants pleaded the general issue.
    Donahue & Shields had a contract to grade the road-bed of the Allentown Turnpike. They made a contract with Connor to do the work on about two miles of the road for $9300. The latter commenced the work, but after some time, discovered he was losing money, when, as he testified, he met Shields, one of the defendants, on October 1st 1876, and told him that he could not carry on his work at the price agreed upon and be able to pay his debts, and that Shields said to him: “ Capt. Connor, you have known me a great while, and I have known you; go on with this work and finish it up; I will see you do not lose a cent, and every debt you owe is paid.” And that in consequence of this promise he went on and finished the -work during the month following this interview.
    The plaintiff offered to show the entire amount of his expenditures upon the -work. The defendants objected to this evidence as incompetent and irrelevant; second, because in the plaintiff’s bill of particulars the original contract is in writing, and has not been offered in evidence; third, because the narr. is in the common counts of assumpsit, and lays no special assumpsit; fourth, because the witness himself has fixed October 1876, as the time when the alleged contract was made. The court overruled the objections, and admitted the evidence. (First assignment of error.)
    The plaintiff then refreshed his recollection with his pay-roll, and testified as to the amount of wages he had paid to various laborers, and the amounts paid for store and board bills, all of which were entered on the paper; some of the entries made by the plaintiff, and some by his assistant. He then offered in evidence the pay-roll itself. The defendant objected to its admission. First, as incompetent and irrelevant; second, because it has not been proved; third, that the entries are made by the party in his own interest, and not in a matter between him and the defendants; fourth, that it is res inter alios acta. The court admitted the roll. (Second assignment of error.)
    It was admitted by the plaintiff that the original contract price was paid. This action was for the recovery of the difference between that sum and the total expenditures under the alleged agreement on October 1st, with Shields.
    In the cross-examination of the plaintiff, it appeared that in July 1876, an attachment under the Act of 1869, had been issued against him at the suit of some of his laborers, on the ground that he was about to defraud them ; that he had moved to dissolve the attachment, and to show his ability to meet the demands made upon him, had made depositions setting forth the amount of the indebtedness of the defendants to him. The defendants then proposed to show by the plaintiff that he had called Donahue & Shields, at the hearing, under the rule to dissolve the attachment, as witnesses to prove that they owed him $1000. The plaintiff objected, and the court sustained the objection. (Third assignment of error.)
    It also appeared on the cross-examination of the plaintiff that, about the time of the attachment, Connor made an assignment for the benefit of his creditors, and that he gave to his assignees a statement of his claim against Donahue & Shields, amounting to $1006. He admitted that he had made such a statement to his assignees, and that they, before this suit was brought, had obtained the money from the defendants and receipted therefor, but asserted that he never acknowledged that it was all that was due to him by defendants.
    The defendants, by Rupp, an attorney who had represented Connor in the attachment proceedings, corroborated some of the testimony that had been elicited on cross-examination. This witness testified to several conversations he had had with plaintiff and defendants.
    On cross-examination, they proposed to ask him the following question:
    Q. Do you not recollect in the conversation with you that Donahue & Shields were not by, and you explained to them, when they came back, that Connor claimed that this was not correct ?
    Objected to as incompetent and irrelevant.
    The. plaintiff alleged that he proposed to show by the witness that Connor had told him certain things about his claim against Donahue & Shields, which he repeated to Donahue & Shields when they all came together during the interim : tha-t Connor claimed that he could not get any more from Donahue & Shields than $1006 now, but that he claimed more of them on account of the contract that he had with them.
    Defendants objected to this evidence as incompetent and irrelevant, and not cross-examination ; and because under a cross-examination the declarations of a party in his own interest, cannot be obtained from the witness, unless they are a part of the matter of which he was examined in chief.
    The court ruled that “ all that the plaintiff said in this alleged interview, as to the amofint that was due him, as claimed by him, may be given,” and overruled the objection. (Fourth assignment of error.)
    The defendant submitted, inter alia, the following point:
    “ It is in evidence that the plaintiff executed a deed of assignment to H. Belford and 'J. A. Trexler in trust for the benefit of creditors; this transferred all his claim and demand against the defendants to them, and if they settled the balance due under the contract, and took and receipted for it, that discharged the defendants, unless it can be shown that the receipt was given through fraud, accident or mistake, and there being no such evidence in the cause, the verdict must be for the defendants.”
    The court, Albright, P. J., answered: “ This proposition, as a whole, is denied. The proposition, however, is affirmed, with the exception of the concluding statement, ‘ and there being no such evidence in the cause, the verdict must be for the defendants.’ ”
    The verdict was for the plaintiff for $2648.43. After judgment thereon, the defendants took this writ, and alleged that the court erred as set forth in the assignments of error.

      Edward Harvey, for plaintiffs in error.
    The pay-roll was improperly received in evidence. The entries were not all made by the plaintiff, and were not proved. They were not original entries. The roll only showed incidentally the relation between plaintiff and defendants, and was inadmissible as res inter alios aata.

    It was ruled in Commonwealth v. Eaton, 8 Phila. R. 42, that a witness may be cross-examined on any subject which bears on his credibility. If in this case the proposed question was wholly collateral to the issue, its rejection upon the ground of irrelevancy would have been proper. But it was not a collateral issue; it sought to connect the witness with a proceeding, wherein, for his own interest, ho both alleged and proved that the contract was what the defendants in this case alleged it was. We submit that its rejection was error. The point of the defendants should have been affirmed without -qualification.

      John D. Stiles, for defendant in error.
    The book was evidence because it was the book of both parties. It was evidence as a memorandum to be referred to by counsel in court. It was proven. The hearing in the attachment case could throw no light on this question. Connor said he claimed that there was more than a thousand dollars due him.
    Nothing was offered to be proven by G-. II. Rupp, except that which took place during the interviews spoken of in his examination in chief. The witness had spoken of several interviews, he could not recollect what was said upon these different occasions, and that is all we proposed to ask. The court ruled expressly that we were entitled to all that the plaintiff said in these interviews.
    The point would have taken the question from the jury as a question of law; this the court declined to do, because the payment to the assignees of a given sum would not preclude a recovery for the actual amount due. The assignees did not settle with Donahue & Shields; they simply received the amount they offered to pay. If they did settle, either a fraud or an accident must have occurred.
   Mr. Justice Paxson

delivered the opinion of the court, May 3d 1880.

1. The first assignment of error is not sustained. If the allegation of the plaintiff was correct, that he was not confined to the contract price, but was entitled by a subsequent agreement of the parties to recover the actual cost of the work, the offer to prove the entire amount of the expenditure from the beginning was clearly admissible.

2. The pay-roll was not competent as a book of original entries. It did not charge the defendants with anything, and was res inter alios aeta. Some of the entries were not made by the plaintiff. But he testified that it showed the amount paid for labor, including the store accounts. This was sufficient to entitle it to go to the jury, not as original evidence of the charge, but as corroboration of plaintiff’s testimony and his statement of the amount expended.

3. It was error to exclude the question referred to in this assignment. The defendants claimed that there was-only about $1000 due the plaintiff at the completion of the contract, which had been paid to his assignee before suit brought. The plaintiff denied the settlement, and claimed a larger sum. It was certainly competent for the defendants to show that on a prior judicial proceeding the plaintiff had claimed but $1000, and had called witnesses to prove it.

4. We are not prepared to say the court below erred in allowing the question referred to in this assignment to be asked upon the cross-examination of the witness Rupp, unless, however, what Connor said, was communicated to Donahue & Shields at an interview to which the witness had referred in his examination-in-chief, it ought to have been excluded. ' It was not competent for the plaintiff, under the guise of a cross-examination, to get in his own declarations at an interview as to which the defendants had offered no evidence. The record as presented is not clear upon this point. The bill of exceptions does not mark the particular interview to which it refers with any certainty. As the case must go back we make this reference to prevent misapprehension hereafter. Just here we desire to say, that it would greatly abridge our labors in many cases, if assignments of error, to the exclusion or admission of evidence, would set forth the name of the witness. Where the testimony is voluminous it is no small labor sometimes to find the proper reference in the bill of exceptions.

5. The defendant’s sixth point should have been affirmed. If, as alleged, the plaintiff executed a voluntary assignment prior to the commencement of this suit, and the assignees in good faith settled with the defendants for the balance due the plaintiff, the defendants would be discharged from further liability in the absence of fraud, accident or mistake. There was no evidence of either to submit to the jury. Whether there was a settlement in point of fact will be for the jury upon another trial.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Merour

text:
    Gordon’s Appeal.
    ]. "Whore under the provisions of the Act April 20th 1846, a purchaser, at an Orphans’ Court sale, seeks to apply as a part of the purchase-money the amount of a judgment originally entered in another county, and which was transferred to the county where the sale was made by an exemplified copy, and it is alleged that the consideration for such judgment has failed, the issue to determine that fact can only be tried in the county having jurisdiction of the sale.
    2. Where in a feigned issue no exception was taken, nor error assigned to the jurisdiction of the court which tried the issue, the fact that the Supreme Court affirmed the judgment in said issue does not imply that it thereby affirmed the jurisdiction of the court, and does not, for said reason, estop an application in the county that had jurisdiction.
    March 2d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Orphans’ Court, of Bucks county: Of July Term 1878, No. 327.
    Appeal of Cary L. Gordon, administrator of Stephen T. Gordon, deceased, from the decree of the court dismissing his exceptions to his own return of the sale of the land of decedent.
    Stephen T. Gordon, who was a resident of Philadelphia, died seised of two tracts of land in Bucks county. He left a will that was proved in Philadelphia, and the person named therein as exeutor having renounced, letters with the will annexed were issued to Cary L. Gordon, son of the testator, January 24th 1871. On his application, the Orphans’ Court of Philadelphia county, October 28th 1871, made a decree, authorizing him to raise, by the sale of the said real estate, the sum of §10,000 for the payment of debts. Security was given in §13,500. On the 2d day of November he presented his petition to the Orphans’ Court of Bucks county, setting forth the proceedings and decree in the court in Philadelphia, and praying for the usual order of sale, which was granted. Subsequently ho made return to the court in Bucks county that he had sold the real estate for §13,394 to George W. Tryon. The administrator was directed to give additional security, to be approved by the court in Philadelphia, which was done, and on the 22d of February 1872, the sale was confirmed nisi by the court of Bucks county. Tryon, the purchaser at the sale, filed a paper declaring that he had purchased for Alonzo Gordon. The administrator then had prepared and executed a deed for the properties,-and tendered the same to Alonzo Gordon, and demanded the balance of the purchase-money, the purchaser having paid at the sale the sum of $1326.75 only. The purchaser, however, refused to pay the balance of the purchase-money, alleging that he held a judgment against the property. It appeared that on November 29th 1869,-a judgment had been entered in the District Court of Philadelphia county on bond and warrant of attorney, dated November 27th 1869, conditioned for the payment of $10,000 to Alonzo Gordon in one year. In consequence, the administrator petitioned the court in Bucks county to rescind the order confirming his sale, so made as aforesaid, for leave to amend his return, and for an alias order to sell. A rule was thereupon granted to show cause why the sale should not be set aside, returnable the second Monday of August 1872. August 12th Alonzo Gordon filed his answer, saying that he held the judgment above described against Stephen T. Gordon, and that a transcript had been entered in the Common Pleas of Bucks county, and that it was a lien on the real estate sold.
    He also answered that there were other liens against the land. That the expenses, the mortgage and two judgments, amounting to $7175.20, were- first payable out of the proceeds of sale, of which the respondent had paid $1326.75, balance, $5648.45, which he was ready and willing to pay on account of the purchase-money, and to give his receipt for the balance of such money on account of his judgment, said amount to be so receipted being $6092.30. That in accordance with the Act of 20th April 1846, he did, July 11th 1872, tender to the administrator $6000 and a receipt on account of his judgment for $6092.30, and demanded a deed, being more than the amount of the purchase-money and expenses and costs; which tender the administrator refused. The respondent in his answer further tendered said sum in cash, and said receipt for $6092.30 on account of his judgment of $10,000, and demanded his deed, and he further asked the discharge of the rule.
    On November 8th 1872, the rule was argued in the court of Bucks county, and it was ordered that said rule be discharged, and that the purchaser should have till Nov. 28th 1872, to pay the administrator a sufficient sum to cover costs of conversion of the real estate and payment of all liens prior to that of the purchaser, and that the purchaser should give the administrator his receipt on account of his judgment, for an amount equal to the balance of the purchase-money, and also exhibit searches of the liens against the property, and the administrator was ordered to receive the cash and receipt, and amend his return in accordance with the order and state all the facts, and make his amended return to the first Monday of December 1872.

      On December 14th 1872, the administrator filed his amended return stating the facts as to the sale, &c. That he had received of Alonzo Gordon §7326.75, which covered the commission, counsel fees, expenses and prior liens, and also received Alonzo Gordon’s receipt for the sum of §5940.75 on account of his said judgment.
    The same day the administrator filed exceptions in the Orphans’ Court of Bucks county to his own amended report of sale ordered by the court, because : 1. The purchaser should not have retained §5940.75 on account of his judgment, for there were material facts in dispute concerning said judgment. That the said judgment was without consideration, and there was nothing duo said Alonzo Gordon. That it was given by decedent as collateral security to secure payment of a draft. That Alonzo Gordon got back his draft, but had not satisfied the judgment. 2. Because Alonzo Gordon refused to pay counsel fees for trying the issue on said judgment.
    The same day the court allowed exceptions to be filed and directed issues in the matter.
    The questions to be tried were: Was the judgment given without consideration; or, if without a consideration, has it failed ? Docs Alonzo Gordon hold the judgment fraudulently? Is there anything due on the judgment, and if so, how much ?
    The case was put at issi}o as directed, and came on for trial at December term 1873, at Doylestown. December 8th 1873, the issues were stricken off by the court there, on the ground that the court of Bucks county had no jurisdiction.
    The exceptions still depending, the Orphans’ Court of Bucks county stated that they would hear an argument on them at the next court. January 20th 1874, the court ordered that the hearing of the exceptions filed to the special return should be continued until the second Monday of February 1874, to enable the except-ant to apply for an issue to determine the truth of the facts alleged in the exceptions to the return aforesaid, in the court having jurisdiction of the subject-matter, to wit, the Orphans’ Court of Philadelphia county, and it was further ordered that unless such application should be made at or before the day aforesaid, the exceptions should be dismissed and the report confirmed.
    On the 31st of January 1874, the administrator presented his petition to the Orphans’ Court of Philadelphia, praying for issues.
    On the 4th of April 1874, the Orphans’ Court of Philadelphia county awarded the issues prayed for. Vide Judge Allison’s opinion, published in 9 Phila. R. 350.
    The cause was tried on the 12th and 13th days of February 1877, before Judge Finletter, in Common Pleas, No. 3, of Philadelphia county, and a verdict rendered for the plaintiff. Judgment having been entered thereon, a writ of error was taken thereto, but the same was affirmed. Alonzo Gordon then presented his petition to the Orphans’ Court of Bucks county, setting forth that ho was the purchaser of the real estate so sold as aforesaid, reciting the proceedings hereinbefore mentioned, and praying for an order on the administrator to make a deed to him. Whereupon the Orphans’ Court of Bucks county, on 6th of May 1878, made a decree, and directed “ that the exceptions filed by Cary L. Gordon, administrator cum testamento annexo of Stephen T. Gordon, deceased, to the report of the sales of the real estate of said decedent to Alonzo Gordon be dismissed and the sales be confirmed, and Cary L. Gordon, administrator as aforesaid, is directed to make and execute and deliver to Alonzo Gordon a deed for the premises described in the order of sale and return thereto as set forth in the foregoing petition.”
    The administrator took this appeal, and alleged that the court erred, 1. In making the order of'January 20th 1874, requiring an application for issues in Philadelphia county. 2. In the dismissal of his first exception. 3. In the dismissal of his second exception.

      E. K. Nichols, J. L. Dubois and F. Carroll Brewster, for appellant.
    The Orphans’ Court of Bucks county entertained jurisdiction of the matter, had the control of the real estate of the decedent, granted authority to sell it, and had the exclusive power to approve or reject the sale, returned as having been made by the administrator. This jurisdiction, this authority and its attendant responsibilities, could be shared with no other tribunal.
    The Orphans’ Court of Bucks county were then clearly right in ordering the issues as they did. But it is submitted that they were equally in the wrong in subsequently striking the' issues off. The court were wrong in their direction to the administrator to apply to the Philadelphia court. The Court of Common Pleas of Bucks county have the record of the lien which is in dispute. Its forum is the only one wherein to try the issue of lien, or no lien, raised in this case. •
    The Orphans’ Court of Philadelphia county, in determining to order issues' in this matter relied, as an authority, upon Brandt’s Appeal, 4 Harris 343, which was wholly unlike this case. There the judgment was set aside for irregularity in the county in which it had been entered.
    Here the issues raised were not as to whether the Philadelphia county judgment was irregular, but simply as to whether there had been a payment or settlement thereof. There was not a word alleged against the correctness or irregularity of the judgment a,t the date of its entry.

      G. & H. Lear, for appellee.
    When this court affirmed the judgment on the issues tried in the Philadelphia court, it, by implication, affirmed the jurisdiction of that court. Where a judgment is transferred to another county, under the Act of 16th April 1840, the court of such county has no power over it, except for purposes of execution and satisfaction. It cannot inquire into its merits at all. The court in which the primary judgment was obtained can alone take any action operating on the judgment itself: King v. Nimick, 10 Casey 297; Brandt’s Appeal, supra.

   Mr. Justice Merour

delivered the opinion of the court, May 3d 1880.

This contention arises under an application of the appellant as administrator of Stephen T. Gordon, to sell the real estate of the decedent situated in Bucks county. The application was made to the .Orphans’ Court of the county of Philadelphia, under the 32d section of the Act of 29th March 1832. It authorized the administrator to raise, by the sale of said real estate, the sum of $10,000, for the payment of debts. The Orphans’ Court of Bucks county, on due application thereafter, ordered the sale. In pursuance of the order sale was made, and the return thereof confirmed nisi by the court. On tendering the deed to the purchaser he objected to paying in cash the whole amount of his bid ; but claimed, under the Act of 20th April 1846, that a part thereof should apply on a judgment he held against the decedent. It had originally been entered on bond and warrant of attorney, in the District Court of the county of Philadelphia, and transferred to the county of Bucks by exemplified copy. The appellant refused to make the application or amend his return of sale, and alleged facts denying the existing validity of the judgment. Thereupon the court directed an issue which was duly found. When it came on for trial, the court being of the opinion that a court in Bucks county had no jurisdiction, struck off the issues, and sent the administrator to the Orphans’ Court of Philadelphia county. On application there the court awarded an issue. It proceeded to judgment in the Common Pleas of Philadelphia county, and was determined in favor of the plaintiff therein. It was affirmed in this court. The Orphans Court of Bucks county thereupon decreed that the appellant make and execute a deed to the purchaser, treating his judgment as a valid and subsisting lien, having first ordered the return of sale to be so amended as to require the appellant to accept the receipt of the purchaser in part payment of his bid.

Two questions arise on this record : 1. Had the Orphans’ Court of Bucks county jurisdiction to try the validity of the lien claimed by the purchaser; if it had, the other is whether the appellant is estopped by the judgment in the issue tried in the Common Pleas in the county of Philadelphia ?

The Act of 29th March 1832, expressly declares the administrator shall in all cases make return of his proceedings in relation to such sale, to the Orphans’ Court of the county in which the real estate so sold lies, when, if the same be approved by the court, it shall be confirmed. Thus exclusive jurisdiction, after the preliminary order made by the Orphans’ Court of Philadelphia, in ordering, supervising and confirming the sale, was given to the Orphans’ Court of the county of Bucks. T-he Act of 20th April 1846, which provided for the administrator accepting the receipt of a purchaser who was a lien creditor, necessarily subjected the action of the administrator in regard thereto, to the same court. The act, therefore, declares the court shall determine, either by reference to an auditor or by directing an issue, as to the right of a purchaser to pay his bid, or any part thereof, by applying the same on his lien. This necessarily restricted the action of the court to the limits of its own county in which ever way it proceeded. If the facts alleged the irregularity of the original judgment, or denied the authority under which it was confessed, there might be some reason in holding, under King v. Nimick, 10 Casey 297, that the application to strike off the judgment should have been made in the Common Pleas of the county of Philadelphia. There was, however, no such allegation. Conceding that it was fairly given and regularly entered, the offer was to show a subsequent failure of consideration, so that nothing was due thereon. This question in so far as it affected the sale in Bucks county, the Orphans’ Court of Philadelphia had no jurisdiction to try. The Orphans’ Court of Bucks county therefore erred in striking off the issue which it had directed to be formed, and in ordering the return of the administrator to be amended before the validity of the lien was duly established. Nor is the appellant estopped by the judgment of the Common Pleas of Philadelphia, and the affirmation thereof by this court. We affirmed only the correctness of the charge and rulings on the trial. No question of the jurisdiction of the Orphans’ Court of Philadelphia was determined on the trial of the facts in that issue. The only matters tried and determined were the disputed facts certified to be in the issue. We understand the third assignment to involve not only the liability of the purchaser to pay the expenses of trying the issue, but alsp the expense of the administrator in trying the same. . So far as is shown by the record we see no cause why he should not be allowed those expenses. ■ This, however, can be determined more intelligently after the trial of the issue. The several assignments are substantially sustained.

And now, 3d May 1880, decree of 6th May 1878, reversed and set aside; the amended report of sale set aside; the issue directed by the Orphans’ Court of Bucks county reinstated, and a procedendo awarded.


text:
    Biery versus Ziegler.
    A widow contracted with, a lessor for the rent of a house for a certain term. Before the expiration of that term she married, but remained living in the house, having frequent visits from her husband who, however, lived at another place in the same village. The lessor brought an action against the husband for use and occupation, and the court below held that he was liable on account of his legal obligation to support and maintain his wife : Held, that this was error; that the husband was a stranger to the contract and was not liable.
    March 3d 1880.
    Before Sharswood, C. J., Gordon, Paxson, Trunkey and Sterrett, JJ. Mercur and Green, JJ., absent.
    Error to the Court of Common Pleas of Berks county: Of January Term 1880, No. 185.
    This was an appeal from a justice of the peace in an action brought by Philip Ziegler against Uriah Biery to recover for the use and occupation of a house.
    In 1871, Mrs. Tellem, a widow, was the tenant of the plaintiff under a parol contract made with her sometime in 1871, which tenancy was to expire April 1st 1.872. About Christmas 1871, while still a widow, she renewed the lease with Ziegler for the year commencing the following April, the rent agreed upon being $575. On the 23d of February 1872, she married Biery, the defendant, and continued to reside in the house as before — her husband living at his boarding-house in the same village, where he had resided for a number of years, but frequently visiting her and occasionally remaining with her over, night. She was not in good-health, and in July 1872, was taken by her husband to his boarding-house, where she stayed till October, when she was removed to her mother’s house, in which place she died November 30th 1872. The testimony shows that while she was living in Ziegler’s house after April 1872, she had a child born, which died soon after birth and was buried from said house, and that one of Biery’s children by a former wife was living with her for a short time Also, that defendant sent some articles of furniture to the house; that his wife’s goods remained in the house till January 1873, when he made sale of them; that in February 1878, he returned the key of the house to Ziegler, and took out letters of administration on her estate December 13th 1878.
    At the trial, the plaintiff claimed to recover against the defendant for use and occupation of the house from the time of defendant’s marriage to the time the key was returned, without regard to the contract of the wife made dum sola, the terms of which were testified to by the plaintiff himself.
    The following were among tho’points of the defendant, with the answers of the court thereto:
    4. If Mrs. Tellem contracted to rent the premises for the year commencing April 1st 1872, before her marriage, and continued to occupy them separately from her husband until shortly before her death in November 1872, under her contract, the husband is not liable for the rent. Nor would he be liable under such circumstances if he had occupied the house with her from April 1872.
    5. That if the facts given in evidence by the plaintiff be true, there is no cause of action shown.
    Which points the court answered together as follows:
    “ The plaintiff does not seek to recover on the contract made between plaintiff and Mrs. Tellem before marriage, but for the use and occupation after marriage, as the husband’s legal obligation to support and maintain his wife. If the jury find from the evidence that the wife continued to reside in the house with her husband’s consent, and he in part with her, the defendant is liable for such an amount as the use and occupation of the house were reasonably worth.”
    6. Under all the testimony in the case the plaintiff is not entitled to recover. Refused.
    In the general charge the court, Hagenman, P. J., inter alia, said:
    “ If the jury find that the wife, after her marriage, continued to occupy the house and resided in it with the consent and permission of her husband, the case falls within that rule which binds a husband for the support and maintenance of his wife, especially so if he to spme extent occupied it with her. In such case the defendant is liable, not on the contract made by his wife before marriage, but for such an amount that the use and occupation were reasonably worth subsequently to the marriage, whilst the house was so occupied.”
    Yerdict for plaintiff, and after judgment thereon defendant took this writ and alleged, inter alia, that the court erred in the answers to the above points and in the portion of the charge noted above.

      A. G. Green and H. Maltzberger, for plaintiff in error.

      Jeff Snyder and H. C. G. Reber, for defendant in error.
   Mr. Justice Paxson

delivered the opinion of the court May 3d 1880.

The Act of 1848 having secured to a married woman her separate estate, it was only fair to exonerate her husband from the payment of her debts contracted before marriage. This was an attempt to compel the husband to pay the rent of a house which his wife had leased some weeks prior to his marriage to her. It appears that after the marriage the wife continued to occupy the demised premises, as she had occupied them for some time prior thereto. Her husband, however, did not live with her, at least not permanently; he visited her sometimes, and occasionally staid all night. The court below held the husband liable for the rent, not because the landlord could recover against him upon the contract of lease with the wife made prior to the marriage, but for the use and occupation after marriage, on the ground of the husband’s legal obligation to support and maintain his wife.

The error of this ruling is palpable. The duty of a man to support and maintain his wife is well settled, and may be enforced by legal process in case of his refusal or neglect to do so. But he was a stranger to this contract. The lessee was in possession of the premises under a lease when he married her. The contract and liability were hers. He no more assumed the payment of her liability under the lease than he did of her other debts, if any existed. It is true she lived in and enjoyed the use of the house for some months after her marriage and until her death. In like manner, her clothing purchased before was worn and used after marriage. If uivpaid for the husband could not be held responsible for it.

There is nothing in the testimony of Ziegler, the landlord, from which a contract with the husband can be fairly implied. We need not discuss the question, therefore, how far a man may be liable upon his promise to pay his wife’s ante-nuptial debt. He made no such promise, and without it he is under no legal duty to pay.

Judgment reversed, and a venire de novo awarded.


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    Clark’s Appeal.
    1. Proceedings in partition were conducted from their inception until an order of sale by an attorney-at-law. The order of sale was executed by the administrator who received the purchase-money, and who, after paying the costs and expenses of the proceedings, exclusive of the fees of the attorney, filed an account, and without waiting for any action of court thereon distributed the entire fund among the heirs. He was aware of the claim of the attorney for compensation. The latter excepted to the account of the administrator, and the court referred it to an auditor, who allowed the fees, and also charged the costs of the audit upon the administrator, which action the court confirmed : Held, that this was not error.
    2. Por Sterrett, «1. — The administrator knew, or ought to have known, that the fees in question were a necessary part of the expense of converting the land into money, for the purpose of distribution among the heirs, and should have had them included in the taxation of the costs.”
    3. Snyder’s Appeal, 4 P. F. Smith 67, distinguished.
    March 3d 1880.
    Before Sharswood, C. J., Gordon, Paxson, Trunkey and Sterrett, JJ. Mercur and Green, JJ., absent.
    Appeal from the Orphans’ Court of Berks county : Of January Term 1880, No. 168.
    Appeal of John H. Clark, administrator of William Clark, deceased, from the decree of the court in the matter of the auditor’s report on the account of said administrator, distributing to Hiram Y. Kaufman, Esq., attorney-at-law, a certain sum for attorney’s fees in conducting certain proceedings in partition. Mr. Kaufman filed an exception to the administrator’s account, on the ground that the administrator refused to pay him $40 for professional services rendered in certain partition proceedings. On filing this exception, the court appointed an auditor “to audit, restate, resettle the said account, and make distribution of the balance.” Before the auditor Mr. Kaufman made his claim for his fees under the Act of April 27th 1864. The counsel for the administrator objected to the auditor allowing this claim, first, because the administrator had no right to pay the same before said fees had been taxed by the court, and before he had an order from court to pay the same; and second, because Catharine A. Esterly, the petitioner, to whom said Act of Assembly makes the allowance, objected to the administrator paying the same.
    From the facts, as found by the auditor, it appeared that the decedent, William Clark, died April 23d 1877, seised of two tracts of land in Berks county, and that he left a widow and six children. That nearly a year after the death of decedent, Catharine A. Esterly, one of the daughters of the decedent, employed Kaufman, the exceptant, to draw up a petition to have an inquisition and partition according to law, of said real estate among the heirs, which petition was presented April 1st 1878, by the ex-ceptant. The same day the court awarded an inquest to make partition of the property set forth in said petition, returnable May 25th 1878, at eleven o’clock A. M. The jury met, according to law, on April 30th 1878, and on May 25th 1878, returned that they had valued and appraised purpart Ho. 1, at $2800, and purpart Ho. 2, at $328.91. A rule was granted on all the heirs and legal representatives of said William Clark, deceased, to appear at an Orphans’ Court held at Reading, on June 22d 1878, at eleven o’clock a. M., to accept or refuse the said property, or show cause why the same should not be sold. On said day all the heirs appeared in open court, and were severally called before court by the exceptant, whereupon all the heirs refused to accept the properties or real estate, and desired that the same might be sold, and an order of sale was accordingly granted to John H. Clark, the administrator and accountant. That on August 10th 1878, the said real estate was sold by the accountant by virtue of said order. That the proceedings in partition were conducted by the exceptant, until said proceedings were fully determined and ended, and an order of sale issued to the administrator. And for these services the exceptant asked to be paid out of the estate, which the accountant refused.
    The auditor allowed the exceptant his fees, and also charged the accountant with the costs of the audit. Exceptions were filed by the administrator, which tho court, Sassaman, J., dismissed, and confirmed the report. This appeal was then taken, the administrator alleging that the court erred in allowing the fees to except-ant, and in not deciding that ho should pay the costs of the audit.
    B. Y. Shearer, for plaintiff in error.
    It is ruled in Snyder’s Appeal, 4 P. F. Smith 67, that the Act of April 27th 1864, requires the counsel-fees therein mentioned to be taxed by the court, and then paid by the parties; that an administrator has no right to pay such fees, unless by order of court after taxation. Mr. Kaufman has made no application to court to have his fees taxed, and, having neglected to do so, the administrator is not responsible for the trouble and expense which ensued, and should not be made to pay the costs of this appeal.

      Frank R. Schell and Henry C. G. Reber, for appellee.
    In Grubb’s Appeal, 1 Norris 23, the court appointed an auditor to ascertain what was a proper foe, which he did under its direction. Snyder’s Appeal, upon which tho appellant professes to rely, although in many respects not parallel to this case, fully sustains our position. There tho counsel claimed simply, before the auditor, their compensation for professional services rendered, without first having brought their claim to the attention of the court by petition or by an exception. Again, the services rendered related to seven allotments, six of which were accepted, one sold, and tho proceeds of said sale constituted tho fund out of which they demanded payment. It was there held by this court, that the costs of partition, including the reasonable attorney’s fee, belonged to the whole partition and not to the sale merely ; and that the executor had no right to pay attorney’s fees or other costs of the partition, except so far as the court might order them to bo paid out of the proceeds of sale. In this case, the services were confined to but a single purpart, from tho proceeds of which sale this appellee asks the payment of his fees as counsel, and we contend, that the confirmation of the auditor’s report is in effect such an order of the court as is designated in Snyder’s Appeal.
   Mr. Justice Sterrett

delivered the opinion of the court, March! 15th 1880.

The facts of this case fully justified tho action of the court below.i The proceedings in partition, from their inception until the order of sale was issued to appellant, were conducted by the appellee, who claimed for his services $40, which was certainly a reasonable compensation, as the auditor has found. The heirs having refused to take either of the purparts at the valuation, the order of sale embraced all the real estate of the intestate, and the costs of partition, including counsel fees for conducting the same, were properly payable out of the proceeds. The order of sale was executed by the appellant, who received the purchase-money; and, after paying the costs and expenses of the proceeding, exclusive of appellee’s fees, filed an account and, without waiting for any action of court thereon, assumed the responsibility of distributing the entire fund among the heirs. He knew, or ought to have known, that the fees in question were a necessary part of the expense of converting the land into money for the purpose of distribution among the heirs, and should have had them included in the taxation of the costs. The Act of April 27th 1864 provides that the costs in all cases of partition, with a reasonable allowance for counsel fees, to be taxed by the court or under its direction, shall be paid by all the parties in proportion to their respective interests. The appellant paid all the other costs of the proceedings in partition, and took credit for the same in his account. He was fully aware of the professional services rendered by the appellee, and of his claim for compensation. Under these circumstances, it was his duty to have asked that a reasonable allowance be made therefor, taxed and paid with the other costs. If he had done so, the burden would have been borne by the parties on whom the act intended it should be cast, and no trouble would have ensued. But he chose to ignore the just claim of the appellee, and voluntarily assumed the risk of distribution. Having done so, his account was excepted to on that ground alone, and the auditor to whom the matter was referred found and reported the facts substantially as above stated. The only questions were as to the amount of the compensation and the propriety of paying it, as other expenses had been paid, out of the proceeds of sale. Both questions were properly disposed of by the auditor and then by the court, and the decree should not be disturbed.

The appellant contended that the case was ruled by Snyder’s Appeal, 4 P. F. Smith 67, but we think not. The facts are not the same. There the fund for distribution represented but a small portion of the real estate embraced in the partition. Six of the purparts had been accepted and only one sold. The claim was also presented to' the auditor without having been first brought to the attention of the court. In the present case the appellee’s claim was the only matter presented by the exception and passed upon by the court. It might and should have been done without reference to an auditor; but, technically, there was no error in referring the matter to an auditor. The decree confirming the report, in effect, fixed the allowance to be paid out of the proceeds of sale.

Decree affirmed and appeal dismissed. And it is now ordered that the costs, including the costs of this appeal, be paid by the appellant.


author: Mr. Justice Gokdon

text:
    Hunter & Drennen versus Henninger.
    1. Where a note is given for the right to make, use or vend a patent right, and has not the words ‘‘ given for a patent right” written across its face, as required by the Act of April 12th 1872, an innocent purchaser, for value, of the note is not affected by the Act.
    2. Where such a note is purchased by one who knew for what it was given, he is affected with notice of any fraud in the transaction.
    March 3d 1880.
    Before Sharswood, C. J., Gordon, Paxson, Trunkey and Sterrett, JJ. Mercur and Green, JJ., absent.
    Error to the Court of Common Pleas, of Berks county: Of January Term 1880, No. 100.
    Assumpsit by E. A. W. Hunter and W. E. Drennen, trading as Hunter & Drennen, against John Henninger, on a promissory note drawn by defendant to his own order, and endorsed by him. The note was in the usual form.
    At the trial, before Hagenman, P. J., Drennen, one of the plaintiffs, testified that he bought the note, before maturity, for sixty-six cents on the dollar, from James M. Hunter, who was a brother of his partner, but had no connection with the firm ; that the firm were dealers in flour ; did not deal in grindstones, but did in notes. Did not know Henninger when the note was bought, or where he lived, and at that time knew nothing of his circumstances. The firm furnished the money to discount the note ; knew the note was taken for machinery; knew of no fraud in the taking of the note, nor that there was any defence. »
    The defendant offered to show that the note was obtained from him by Hunter, Son & Co., without any consideration, through fraud and misrepresentation ; that he gave the note in suit for certain patented articles, called the Eureka Grinder, including the exclusive right and privilege of vending the same within the township of Bethel, in which the defendant lives, which said patent articles were represented to be of great practical utility and value, but which proved to he valuless and of no account whatever. The note as aforesaid was given upon the express condition and with the positive understanding that the defendant was to pay it off as he sold machines, and that when he sold a machine he was to send the money to the holders, Hunter, Son & Co., and they were to credit the amount upon the back of the note; and if he (the defendant) should not succeed in disposing of sufficient to pay the note, it was to be given up to him with whatever credits were entered upon it, hut that no suit should then be brought upon it, nor should it ever be placed in the hands of any hank or third parties.
    Plaintiffs objected, hut the court admitted the offer.
    The fourth point of the plaintiff and the answer of the court thereto were as follows :

      4. The plaintiffs in this case have shown by uncontradicted testimony that they are bona fide purchasers for value, and before recovery can be defeated, the defendant must prove by clear evidence that the plaintiffs had notice of fraud' (if there was fraud), and of such notice there is no evidence.
    Ans. “ It is for the jury to say whether the evidence shows that the plaintiffs are bona fide purchasers for value. If so, they are entitled to recover. If the plaintiffs are holders for value, before a recovery can be defeated on the ground of fraud, the defendant must show by clear evidence that the plaintiffs had knowledge of the fraud before they purchased the note. The court cannot say there is no evidence of such notice in the case.”
    In the general charge, the court, inter alia, said :
    “ Erom this evidence it is for the jury to determine whether or not Drennen had notice of the fraud practiced on Henninger at the time he purchased this note from James M. Hunter; if he had, plaintiffs cannot recover.”
    Verdict for defendant, when plaintiffs took this writ, and alleged, inter alia, that the court erred in admitting the above offer of evidence, in the answer to the point, and in the portions of the charge noted.
    H. Willis Bland and J. Walker Shortlidge, for plaintiffs in error.
    The offer did not propose to prove fraud in the original procurement of the note; it only offered to show that an unfair advantage was taken of the defendant by the negotiation of the note. This was plainly not admissible: Heist et al. v. Hart, 23 P. F. Smith 286. Nor did it propose to show or to follow with proof that the plaintiffs were not innocent holders. Assuming the facts to be true, they are entirely consistent with honesty and good faith, and do not justify the inference sought to be drawn from them: Battles & Webster v. Laudenslager, 3 Norris 451. The plaintiffs were holders for value, before maturity, of negotiable' paper. The presumption in their favor was that they were bona fide holders without notice, and to affect them with knowledge of such fraud as would defeat a recovery, the evidence should be clear: Battles & Webster v. Laudenslager, supra; Moorhead v. Gilmore, 27 P. F. Smith 122. There was no question of fact that could be said to be in dispute before the jury, and the court erred in the answer to the fourth point.

      J. H. Jacobs, for defendant in error.
    The object of the legislature in passing the Act of April 12th 1872, was to secure, so far as could be 'done consistently with the rights of innocent third parties, that notice of the consideration should be given to all who should take paper or notes for the sale of patent rights or patented articles. “Nothing is better settled,” says Justice Sharswood, in Haskell v. Jones, 5 Norris 173, than that between the original parties to a note for a patent right, it is a good defence to show that the alleged patent is void, and that the consideration has therefore failed. All who take with notice of the consideration take necessarily subject to the same defence.” Drennen knew what the note was given for. He knew it had been given for a patent right, and that was sufficient for him to know to defeat his recovery as a bona fide holder.
   Mr. Justice Gokdon

delivered the opinion of court, May 8d 1880.

The Act of 12th April 1872 was intended to destroy the negotiable character of notes given in whole or part for “ the right to make, use or vend any patent invention,” in order that the makers thereof might have the right to defend, as well when said notes were passed to third parties as when in the hands of the original payees. In furtherance of this intent, the act requires the endorsement, “ Given for a patent right,” to be made across the face of such notes, and this, in order that no one may ignorantly purchase paper of this kind. Without this, of course, the innocent purchaser for value would not he affected; he would hold as the endorser of any other negotiable paper. Not so, however, as to one knowing the consideration of a note given for a patent right, for such an one is, by the act, guilty of a misdemeanor, if he receives this kind of paper without having the words above stated written upon its face. It follows that if the plaintiffs, through Drennen, received the note in suit, knowing that it was given for the right to vend, or use, these patent grinders, they received it in fraud of the statute, and wore, for that reason, not entitled to recover. Whether they ■had such knowledge or not was, under the evidence, properly submitted to the jury. Under the circumstances of this case, the plaintiffs were loft without ground of reasonable complaint, when the court put upon the defendant the burthen of proving that a fraud had been perpetrated upon him by the payees of the note, and that they, the plaintiffs, had notice of such fraud.

The exceptions to the evidence cannot be sustained; first, for the reason that they are based upon the assumption that Hunter & Drennen were bona fide purchasers for value ; whereas, if Drennen himself is to be believed, he knew that the note had been given for the right to vend or use a patented article, and, as we have before said, he compromised the good faith of his firm by taking that note without first having it endorsed as required by the statute; and, second, the evidence complained of was proper and pertinent to the issue then being tried. According to the holding of the court, Henninger must first prove that he was defrauded in the giving of the note, and then that the plaintiffs had notice thereof, and this proof must be either direct or circumstantial. Had he failed in the latter, then the defendant would have had no case, and so, no doubt, the court would have instructed the jury. That there was an admission of an offer to prove a fraud on the defendant, unaccompanied by an offer to prove notice to the plaintiffs, proved to he, in the end, a harmless error, since, in fact, the requisite evidence to prove notice was introduced during the trial. Enough has already been said to show that the remaining exceptions are without merit.

Judgment affirmed.