text:
    Clark et al. versus Everhart et al.

    1. If false or fraudulent representations be alleged as ground for avoiding a bargain it must be shown that they entered into the vital essence of it.
    2. This must be proved by a just inference from vrhat took place at or about the time of contracting and is not to be supplied by surmise or things equivocal in themselves.
    3. Whether a mill is in good or bad order does not relate to an occult quality.
    4. A false statement of a material matter will not overthrow a bargain unless the statement was the means of producing it.
    5. Where parties treat on the basis of trust and confidence, the rule is to hold the party making the representations bound by them.
    6. Such relation is never presumed in ordinary transactions where each may inform himself, then both the relation and deception must be proved to set aside an agreement.
    November 17th 1869.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Mereer county: No. 74, to October and November Term 1868.
    This was an action of covenant, brought August 12th 1867, by E. D. Satterfield and Abraham F. Everhart, trading as E. D. Satterfield & Co., and David Edeburn against William F. Clark and Warren Pearson.
    On the trial, April 24th 1868, before Trunkey, P. J., the plaintiffs gave in evidence an article of agreement made December 12th 1865, between David Edeburn and E. D. Satterfield & Co., of the one-part, and W. F. Clark and Warren Pearson, of the other part; viz.:
    “The said David Edeburn, E. D. Satterfield & Co., for the consideration hereinafter mentioned, do for themselves, their heirs and executors and administrators, covenant, promise and agree to andjwhffi the said Wm. F. Clark and Warren Pearson, their' heirs and assigns, by these presents, that they shall and will on or before the first day of April 1868, grant, &c., unto the said Wm. F. Clark and Warren Pearson, their heirs and assigns, in fee simple, clear of all encumbrances, all that messuage or piece of land, &c., in the borough of West Middlesex, Mercer county, on which are erected a steam flouring-mill and tenement houses.

      “In consideration whereof the said Wm. F. Clark and Warren Pearson covenant with the said David Edeburn, E. D. Satterfield & Co., that they will pay unto the said David Edeburn, E. D. Satterfield & Co., the sum of $7250, in manner following, to wit: $2500 on the execution of this agreement; $2375 on the first day of April 1867; and $2375 on the first day of April 1868; with interest from the 1st day of January 1866; and the payment of the said several sums of money is declared to be a condition precedent to the execution of the deed or deeds of conveyance aforesaid.”
    The defendant made the first payment. This suit was brought for the second.
    The defendants gave evidence by Robert Stewart that Edeburn told him he had an arrangement with W. F. Clark to sell the mill, and that Clark had written to Edeburn that he had a friend who wished to buy the mill. A letter being shown to witness, he said it was a letter which Edeburn authorized him to write, that Everhart had consented to it; witness understood that it was written to Clark as plaintiff’s agent to sell; they were to give him $250 for making the sale. When the letter was written Clark resided at Meadville and Pearson at New Castle.
    The defendants then, under objection and exception, read the letter as follows:
    West Middlesex, Nov. 29 ’65.
    Wm. F. Clark, Esq. — Dear Sir: — Yours of the 27th inst. came to hand this day. We offered to sell our mill and house and lots adjoining for $8000, or the mill by itself for $7000, which Ave think at a very low price. It is doing very well, is in excellent order. If your friend wants the mill he can have it at the above price, that is, if taken within a week, if not taken in that time we will not be bound by this offer, as we want to make arrangements for «he running of the mill for the winter.
    Hoping to hear from you soon, we remain
    Yours, &c. A. F. Everhart & Co.,
    Per Stewart.
    Defendants then offered to prove that the mill was not as represented in the letter of the 29th November at the time it was bought by them, but that it required an expenditure of $1500 to put the same in excellent order. (In answer to question by the court, defendants’ counsel say they have no further testimony in reference to representations or Avhat passed at the making, or as inducing to the making, of the contract.)
    Plaintiffs objected to the evidence offered because there is no evidence of misrepresentation, or of any misrepresentation made by plaintiffs inducing the contract which was made and in evidence.

      Tbe offer was overruled, and a bill of exceptions was sealed.
    The court (Trunkey, P. J.) withdrew the consideration of the letter from the jury.
    The verdict was for the plaintiffs for $2704.42.
    The defendants took a writ of error, and assigned for error:—
    1. The court erred in not submitting the letter of Everhart & Co. to the jury as evidence that the purchase was made on the faith of its representations that the mill was “in excellent order.”
    2. In not admitting evidence to show how much it cost to put the mill “ in the excellent order” the defendants in error had represented it.

      S. W. Dana (with whom were Foster Sp MoDermitt),

    cited McKean v. Wagenblast, 2 Grant 465; Fisher v. Worrall, 5 W. & S. 478; Spaulding v. Heges, 2 Barr 243; Miles v. Stevens, 3 Id. 21; Pennock v. Tilford, 5 Harris 456.

      W. Stewart (with whom were S. Griffith and J. H. Mohinson),

    cited Stubbs v. King, 14 S. & B. 206.
   The opinion of the court was delivered, January 3d 1870, by

Thompson, C. J. —

Assuming, for argument sake, that the letter which the court withdrew, after its admission in evidence, contained the assertion of a fact in regard to the mill being in excellent order, and not an opinion merely, it would be but a single step in raising the defence proposed, to wit: that the defendants purchased on the faith of its representations, and were deceived. This the latter asserted the letter would not show, for peradventure it was not read at all by Pearson, and may not have been discussed by either at the time of the purchase; and, peradventure they may have taken the opinions of others on the subject or examined for themselves. It must be borne in mind, that the learned judge only withdrew it after the counsel for the defendants below were asked, and answered that they had no testimony whatever to give to apply the letter to the result of the purchase, beyond the fact, that it had been written to Clark. It would therefore have been only a guess or surmise, that it had been the inducing cause of the purchase, and liable to be erroneous in the proportion of one possibility to a dozen of reasons why it was not so. This is not enough, on any settled principle. If false and fraudulent representations be alleged as the groundwork for avoiding a bargain, it must be shown that like poison it entered into, and mixing with, the vital essence of it, tainted and destroyed it. That must be proved by a just inference from what took place at or about the time of contracting, and is not to be supplied by surmises or things so equivocal in themselves as to be proof or not as the fancy might dictate. It might be by some imagined that these purchasers, although the letter was written with no idea that they intended to negotiate for a purchase themselves, they applied its assurances to themselves, and on its faith looked no farther but contracted; by others it might be readily believed that it was a representation only to induce people to look at the property and buy if they were suited; that it could hardly have been with a view to influence the defendants to purchase, as they were not in negotiation for it, and the information was drawn out by one of them as agent, and that it would be unreasonable to suppose that a purchase would be made amounting to so much money without examination or guaranty, if not examined, as to its condition; and many would also be likely to think that if the representation was the moving inducement, it was strange that the contract was closed at $750 less than asked, including commissions to one of the purchasers, unless other considerations besides the letter had brought about the result; these considerations show the utter worthlessness of the letter itself in proving the inducing cause of the contract. Eor such a purpose, if it cast light at all, it was a most uncertain light.

“ Undoubtedly,” says Gibson, C. J., in Fisher v. Worrall, 5 W. & S. 478, “a vendor may praise to the most extravagant extent qualities which are susceptible of inspection ; but the misrepresentation' of an occult quality in regard to which the vendee is not supposed to buy on his own judgment, would be followed by very decisive consequences.” Whether a mill is in good or bad order, is not an occult quality. It is almost as susceptible of discovery by common observation as a farm, certainly so, by persons acquainted with machinery. The defendants may, for aught that appears, have been well acquainted with it, if not it was easy to be informed by others who were. In Phipps v. Buckman, 6 Casey 401, the rule is stated that even a false statement of a material matter will not overthrow a bargain unless the statement was the means producing it. “ This is especially true,” says Porter, J., “ where the statement embodies the result of an opinion, and where the means of knowledge are equally accessible to both parties.” Where parties treat on the basis of trust and confidence either as to occult qualities, or for any other reason, the rule is to hold the party making the representations bound by them; but that relation is never presumed in ordinary transactions, where each may inform himself. In such cases the relation and deception must both be proved to set aside an agreement. The letter here as the causa eausans was without proof, and did not afford the inference; and, therefore, the contract was not to be affected by it. We do not regard Miles v. Stevens, 3 Barr 21, as shedding any reliable light on the question evoked here. Indeed, in its extent it has not been followed, as was said in Pennock v. Tilford, 5 Harris 456. We think the learned judge below administered the law accurately in rejecting the proof of the cost of repairs proffered, and in withdrawing from the jury the letter which had been read, and that the judgment must be affirmed.


source: Caselaw Access Project

author: Thompson, C. J. —

license: Public Domain

text:
    Cunningham & Son versus Ihmsen.
    1. I. recovered judgment against A. on a bond, issued execution, under which his goods were sold. Afterwards C. recovered judgment against A. and -issued an execution, under which the sheriff returned that he had sold A.’s goods under I.’s execution. Held, that C. had no standing to contest with I. the title to the money.
    2. On the petition of C. the court granted an issue in this case to try the validity of I.’s judgment. Held to be irregular.
    3. After A. gave the bond he entered into partnership with I., who contributed the bond as his share in the firm, it being agreed that on the dissolution I. should have his bond. The firm was dissolved, the bond delivered to I., judgment entered on it and execution was issued. Held, that if the transaction was without fraud between A. & I. a stranger could not call it in question.
    November 19th 1869.
    Before Thompson, C. J., Read, Aqnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lawrence county: No. 49, to October and November Term 1869.
    On the 4th day of March 1865 Alexander Arbogast gave to Charles T. Ihmsen a bond for $6000 with warrant of attorney to confess judgment.
    On the 10th of October 1866 Arbogast, Ihmsen and John R. Gloniger entered into partnership for the manufacture of glass to continue for three years; Arbogast to contribute stock, tools, &c., to the amount of $6000 as his part of the capital; Ihmsen to contribute above-mentioned bond. Gloniger did not contribute any capital, but was “ to give his whole time and attention to the business of the firm, such as keeping books,” &c., each partner to share the profits and losses in unequal proportions, as specified in the articles. It was also stipulated, that at the termination of the partnership “ Ihmsen will be entitled to this bond, and Arbogast to the sum invested by himself.”
    The firm was dissolved by mutual consent in writing on the 17th of January 1867. At the same .dale the following agreement was entered into:—
    “ In the dissolving of the above-mentioned firm it is mutually agreed, between Alexander Arbogast and Charles T. Ihmsen, that the said Charles T. Ihmsen shall receive back and hold, for his own use and benefit, the bond of Alexander Arbogast for six thousand dollars, which he (Ihmsen) invested as capital in the firm of A. Arbogast & Co., and on this bond shall be entered a credit for seven hundred and fifty dollars,.the amount agreed upon, as due from Ihmsen for his portion of losses, being one-half the total estimated losses of the firm from its commencement to the dissolution.
    “ It is further understood and agreed that Charles T. Ihmsen is to assume the debt owing to the firm of A. Arbogast & Co., by his wife and daughter; on account of this debt he obligates himself to pay a certain note for five thousand dollars held by Thomas Baily, of Pittsburg; and should this amount be over what is owing by his wife and daughter, he is to have the difference refunded to him; and if, on the other hand, it falls short of the amount he is to make good the difference.”
    On the 18th of June 1867 judgment was entered in the Court of Common Pleas of Lawrence county on Ihmsen’s bond against Arbogast for $6000.
    On the 28th of June 1867 a fieri facias, No. 17, to September term 1867, was issued on Ihmsen’s judgment, under which Arbogast’s property was sold on the 11th, 24th and 25th of July.
    On the 20th of July 1867 W. Cunningham & Son sued Argo-bast on an account for merchandise, on which they recovered judgment, August 10th 1867, for $2030.67; a fieri facias, to September 1867, No. 44, was issued; to this the sheriff returned, “ Property levied and sold by virtue of writ, No. 17, September term 1867, see writ, No. 17, September term 1867.”
    The net proceeds of Arbogast’s property made on Ihmsen’s execution beyond costs, rent, &e., were $6125.87, of which by leave of the court the sheriff paid Ihmsen $3950 on account of his execution, leaving $2175.87 in the hands of the sheriff.
    On the 9th of December 1867 Cunningham & Son presented their petition to the Court of Common Pleas setting out their judgment and execution against Arbogast, and that they claimed so much of the proceeds of sale of Arbogast’s personal property as would satisfy their claim. They also alleged that there were material facts in dispute relating to the distribution of the proceeds of sale, and prayed for an issue to try those facts. There were five allegations of disputed facts; the court awarded an issue to try two, viz.:—
    1. Ihmsen’s judgment was fraudulent.
    2. The bond was paid by investing it in the partnership, and entering judgment on it afterwards and proceeding upon it were fraudulent.
    The issue was between W. Cunningham & Son, plaintiffs, and Charles T. Ihmsen, defendant.
    On the trial, February 16th 1869, before McGoffin, P. J., the facts above stated were given in evidence; also other facts for the purpose of proving fraud. The bond of Ihmsen had credits endorsed on it.
    The plaintiff’s points were :—

      1. The investment of the bond in question as capital stock in the firm of A. Arbogast & Co., amounted to payment and release, and discharged Alexander Arbogast from the obligation thereof.
    2. The bond having become the property of A. Arbogast & Co., was extinguished, together with the warrant of attorney thereto attached, and the judgment subsequently entered thereon by virtue of said warrant was without authority and void.
    3. During the time said bond was held by A. Arbogast & Co., the right of action thereon was suspended, and being thus suspended by the act of the parties, it could not again revive.
    The defendant’s points were:—
    1. The placing of the bond and warrant of attorney in the firm of A. Arbogast & Co., as stipulated for in the articles of copartnership, would not operate as a legal payment or satisfaction of the same, but the bond and warrant of attorney, during the continuance of said copartnership, wmuld be good and valid at law.
    2. The return of the bond and warrant of attorney to Ihmsen, according to the stipulations of the articles at the dissolution, would have the legal effect to render the same so returned in the hands of said Ihmsen as good and valid as before they had been placed as capital in the said copartnership.
    3. The placing of the bond and warrant of attorney in the firm of A. Arbogast & Co., stipulated for by the articles of copartnership, and their return to C. T. Ihmsen in pursuance of the agreement at dissolution, would render the bond and warrant good and valid in the hands of Ihmsen after their return, and no fraud having been proved, the verdict must be for the defendant.
    The court answered the plaintiff’s points as follows:—
    “ 1. Under the stipulations in the articles of partnership, and of the terms of the agreement made at the time of the dissolution of the firm in evidence before the jury, and in the absence of any proof as to the payment of the debt due on the bond by Alexander Arbogast in fact, we answer this point in the negative.
    “ 2. The first branch of the point in the negative, there being no proof before the jury that the bond in fact had been paid. And to the latter part of the point we say to the jury, that if Alexander Arbogast, upon the dissolution of the firm, with the consent of Mr. Grloniger, his partner, redelivered or handed back the bond with warrant of attorney attached, intending it to be a valid, subsisting obligation, he, Ihmsen, as the holder thereof, could, for his protection in the collection of the amount which might still be due thereon, enter up judgment under the said warrant of attorney as a valid, subsisting authority so to do.
    “ 3. The right of an action at law upon the said bond by the firm of Alexander Arbogast & Co., against Alexander Arbogast, one of the firm, might be considered as suspended during the existence of the firm, yet equity would keep it in force as a binding obligation for the protection of the interest of Ihmsen and Gloniger, his partners, and for the creditors of the firm, if any there were. And if, upon the dissolution of the firm under the agreement of partnership, as well as the stipulations of the contract at the dissolution thereof, Alexander Arbogast, with the consent of his partner, delivered the bond in good faith as a debt still unpaid by him over to Charles T. Ihmsen, after credits were endorsed thereon, he, Ihmsen, could subsequently enter it upon record and proceed to its collection unless the proof satisfied the jury it was aotually paid, but kept on foot to hinder, delay, or to prevent the creditors of A. Arbogast from realizing their debts out of the property of said A. Arbogast.”
    The court affirmed the defendant’s points. The verdict was for the defendant, and the plaintiffs took a writ of error, assigning for error the answers to the points.

      B. MeOoomhs, for plaintiffs in error. —
    The bond was merged in the articles of partnership: Lord Crompton v. Oxenden, 2 Ves. Jr. 261; Bouvier’s Law Dict. “ Merger ”; Story on partnership, § 16, 221, 234, 237; Trower on Debtor and Creditor 247; Linsenbigler v. Gourley, 6 P. F. Smith 166; Griffith v. Chew, 8 S. & R. 17; Tyson v. Dorr, 6 Wharton 263; Eichelberger v. Morris, 6 Watts 42; Fishel v. Fishel, 7 Id. 47. If extinguished, the right could not be revived: Brown on Com. Law 112; 2 Bouvier’s Law Diet., “ Suspension of Right.”

      S. W. Dana and N. P. Putter man, for the defendant in error.
    —The plaintiff having no lien on the fund had not standing to contest. It should have been raised on appeal from a decree of distribution, not by writ of error. Without fraud the bond was, by agreement of the partners, in the same condition as if a new bond had been given.
   The opinion of the court was delivered, January 3d 1870, by

Thompson, C. J. —

We must regard this as an issue ordered by the court to inform its conscience about some matter of distribution arising between the parties. But the records show that when the money was made, it belonged incontestably to the defendant, as between him and the plaintiffs; they had not even a judgment until after the levy and sale on his execution. It seems to us a novelty to grant an issue to try the validity of that judgment. The judgment was claiming nothing, it was the execution, and it had no competitor. There is a want of regularity and order about the whole proceeding which does not entitle the exception to much attention here. We shall therefore dismiss the case with this remark upon the assignments of error, that none of them are sustained. If Arbogast chose to redeliver his bond and warrant of attorney to Ihmsen to be entered up or otherwise as he chose, the transaction being sound between them, no stranger could assail it on this ground. In so holding, the court committed no error.

Judgment affirmed.


author: Thompson, 0. J. —

text:
    Leslie’s Appeal.
    1. The term “ partial” account, in the Orphans’ Court, implies ipso fado that nothing is settled by it but those matters constituting the items or question in the statement itself.
    2. Rhoads’ Appeal, 3 Wright 186, remarked on.
    3. Executors charged themselves in a “ partial” account with the inventory of debts due to the decedent, this did not preclude credits in their “final” account for partial payments made to the decedent or for those which proved desperate.
    4. Executors were ordered by "will to sell real estate; the Orphans’ Court had jurisdiction of them under Act of June 16th 1836, § 19, art. -8.
    5. Executors, under citation, filed an account in the register’s office as to the personalty and appended to it an account of their sale, &e., of real estate. Held, that the account as to the realty was irregularly filed in the register’s office.
    6. No objection in limine was made; both accounts were certified by the register to the Orphans’ Court, and proceedings had thereupon. Held, that the court having jurisdiction of the subject-matter, it was afterwards too late to object.
    7. Where there is supine negligence in executors in selling land for less than they might have received, the rule is to surcharge them to the extent of the injury.
    8. Surcharge made under the circumstances in this case.
    November 19th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Orphans’ Court of Lawrence county: No. 95, to October and November Term 1869. In the estate of George Leslie, deceased.
    George Leslie died July 31st 1859, having made his will dated on the 22d of the same month, and proved August 27th 1859. Besides other devises and bequests he provided as follows:—
    “ Fifth. I give and b.equeath unto my beloved wife, Martha Leslie, after all my just debts and funeral expenses are paid, and the foregoing bequest to my daughter shall also be paid, the one-third of all my personal property absolutely, and also the one-third of all the rents, issues and. profits of all my real estate, not herein disposed of and.including the whole use and occupation of my mansion-house, &c., during her natural lifetime, or so long as she remains my widow, and subject also to the following provision, viz.: It is my desire that my three daughters, Margaret, Harriet and Ellen, continue to reside with their mother so long as they remain unmarried or until her death, if they should' not marry before that time, and to use and occupy the mansion-house, &c., in common with their mother, and to have pasture, &c., so long as they remain with their mother.”
    “ Tenth. After the death or marriage of my beloved wife Martha, it is my will and I do hereby authorize and empower my executors hereinafter named, to sell by public or private sale as they in their discretion may deem best, all my real estate undisposed of by this will, and distribute the proceeds arising therefrom amongst my five daughters, viz.: Jane, intermarried with Edward McMillan, Martha, intermarried with William Vance, Margaret Leslie, Harriet Leslie and Ellen Leslie, equally, share and share alike. In making such sales it is my desire that the property be sold to the best advantage of the legatees, and I hereby give my said execntors full power and authority to make and execute deeds in fee simple to the purchaser or purchasers thereof, and to do and perform all such other acts as may be needful and necessary to perfect the title thereof to the purchaser or purchasers thereof as aforesaid.”
    He appointed his son John Leslie, and son-in-law William Vance, executors of his will.
    On the 25th of January 1861, the executors filed an account, viz.:— ♦
    “Partial account of John Leslie and William Vance, executors of the last will and testament of George Leslie, of Shenango township, Lawrence county, deceased.
    The said accountants charge themselves with all and singular the goods and chattels, rights and credits, which were of the said deceased agreeably to an inventory thereof filed in the register’s oflice of Lawrence county, amounting to, to wit:—
    September 22d 1859. Goods and chattels . . . $1274.20
    Cash, bonds, notes and other evidences of debt . . 3471.48
    Increase on sale of goods......... 53.18
    $4799.56”
    “ Accountants claim credit for the following disbursements, to wit:”
    Forty-six items (set out in detail) amounting in the aggregate to...........$2036.42
    “ Statement in explanation:—
    Goods and chattels appraised at ... . $1274.90
    Amount of goods sold.as per sale list . $ 471.17
    Amount taken by widow and legatees . 856.71
    $1328.00
    Increase on sale......... 53.18
    $1328.08

      Whole amount received by the executors in cash from the estate .... $1095.26
    Whole amount disbursed in cash . . . $1170.60
    Amount of cash disbursed over amount received .......... 75.34
    $1170.60”
    This account was confirmed, May 22d 1861.
    A citation was issued by the Orphans’ Court commanding the executors to file in the register’s office “ a final account and make a true settlement of the personal assets of said testator, as also of the rents, issues and profits of said real estate. * * *
    Also, an account and statement of the proceeds arising from the sale of said real estate,” &c.
    On the 12th of January 1867, in answer to this citation, they filed a final account:—
    In this account they charged themselves with the balance on their former account......$2759.93
    With interest received from a number of persons
    named; and with a judgment...... 1486.10
    ' $4246.03
    They claimed credit for a number of payments for
    debts, expenses, &c., amounting to ... . $1486.01
    Amongst these credits were the following:—
    “ Mistaken amount of credit claimed for moneys paid S. D. Clarke & Co., in former settlement — see voucher No. 39 . ..........$ 20.00
    R. D. Allen’s note worthless ........70.00
    J. Hoffman’s note not collectable....... 50.00
    Amount paid to decedent in his lifetime, on note of J. Mayne..............12.00
    Amount of note of J. N. Lutton, not collectable . . 4.00
    Amount of moneys paid by James Patterson to decedent in his lifetime..........125.00
    Amount of note of James Leslie not collected and doubtful.............100.00
    Amount of note of James Hunter, in suit, and not collected .............. 150.00”
    Appended to their account was:— •
    1. A statement of payments “ on account of legacies under the will,” &c., amounting to......$2819.00
    2. “ Statement of their receipts and disbursements in their management of the real estate under the will,” &c. Rents received amounting to.........$160.00
    Expenses of repairs of conducting farm, &c. . . . 105.15
    Other payments on what account not specified . . . 573.09
    3. “ Statement of the disposition of real estate which hy will they were authorized to sell.”
    “ Tract containing about 195 acres sold, January 23d 1866, to Margaret Leslie for the gross sum of $12,000 payable in three equal annual instalments, the first of which has been paid.”
    Two other tracts for $1266.
    “Upon which several sales the accountants have received $5266” which they “ have heretofore tendered to the parties entitled, * * * and are yet ready and willing to pay.”
    This account was confirmed nisi, February 13th 1867. Jane McMillan, Harriet Barkley and Mary E. Fisher, daughters of the testator, and the administrator of the widow filed exceptions to the account.
    1. To payments to the legatees.
    2. To credits in partial account and in final account for payments to Robert Hopper.
    3 and 4. To credits for which the vouchers are not sufficient.
    5. To credits for debts due estate, as uncollectable.
    6. To the eight credits above stated, viz., “mistaken amount of credit for moneys paid to S. D. Clarke,” “ R. D. Allen’s note worthless,” &c., &c.
    Also to the account of the management of the real estate; and that the real estate was sold to Margaret Leslie at a grossly inadequate price. These exceptions stated specifically their grounds.
    The account and exceptions were referred to J. McMichael, Esq., as auditor to report the facts and restate the account if necessary!
    The auditor decided that the exceptions, so far as they related to the “ partial account,” could not be considered, that account having been closed up by its confirmation. He further reported:—
    “ The fifth exception is to credits claimed for uncollected and uncollectable claims due the estate.” * * *
    “ The sixth exception is to certain items of credit claimed in the final account, including the items in the fifth exception, on the ground that the accountants are concluded by the decree confirming the partial account. In the partial account the executors charged themselves with the inventory as filed, and that account showed a balance in their hands of $2763.14, without in any way explaining of what that balance was composed, whether of cash or of uncollected assets. In the items of their final account, included in this exception, they claim credit for a mistake in the partial account of $20, also for money paid by various parties to decedent during his lifetime on claims due him, amounting to $137, and for uncollected and uncollectable claims amounting to $374.
    “ I have decided that the partial account is conclusive of the matters contained in it; and, if that is correct, the executors cannot, on filing another account, correct the mistakes made in the first. If there were mistakes their remedy was a petition of review. These credits, amounting to $531, are therefore not allowed by the auditor.” * * *
    “ This disposes o'f all the exceptions but those which relate to the management and sale of the real estate.
    “ It is objected that the acountants have not charged themselves with the rents, issues and profits received by them from the management of the real estate, that they have not charged themselves with any proceeds whatever from the farm, called by witnesses the Homestead farm, nor for proceeds from the farm, called the Vance farm, for the years 1860, 1861 and 1862, nor with proceeds of timber sold by the executors off the land and for which they were paid.
    “ George Leslie by his will specifically devised certain tracts of his real estate, leaving a residue not specifically devised, which residue contains, 349 acres 3 roods 12 perches, as appears from the testimony. This residue, composed of parts of several different tracts purchased at different times, all lay together, the several parts adjoining each other, and the whole forming an irregular shaped tract. One part of this residue, with the exception of 40 acres, is called the Homestead farm. The mansion-house of the deceased stands on this part, and it contains 206 acres 3 roods 36 perches. The other part is called the Vance farm, and contains 142 acres 3 roods 16 perches.” * * *

      “ The exceptors claim that the accountants should be charged with the reasonable rents during the time they had the management of this real estate. To decide this it will be necessary to look at the character of the charge the executors had over this real estate.” * * *
    The auditor, giving the provisions in the appropriate clauses of the will, proceeds:—
    “ For land so encumbered and without any evidence of mismanagement, negligence or fraud other than results from the absence of a charge for profits, will it be said that executors should be surcharged with the amount of rent they might have received from property unencumbered, or indeed with any amount whatever ? The auditor cannot say with any degree of certainty that the executors did or could have possibly made any profits from this land and obeyed the instructions of the will. * * * * This exception is overruled.”
    “ The remaining exception is to the account rendered by the executors of the sale by them of the real estate of the testator.” * * *

      “ All the ‘ real estate undisposed of by the will,’ and to which consequently the power to sell extended, is the land before mentioned’ containing 349 acres 3 roods and 12 perches, and composed of the two farms called the Homestead farm and the Vance farm.
    “Martha Leslie remained the widow of the testator and occupied his mansion-house during her life, and died May 31st 1865. On January 23d 1866 the executors sold, by private sale, on articles of agreement to Margaret Leslie, the piece of land called the Homestead farm and a small pifece of what was called the Vance farm, for the gross sum of $12,000, payable,” &e. * * * “ The land so sold to Margaret was not surveyed by the executors, nor its quantity certainly ascertained by them. They estimated that it contained about 195 acres.
    “ Indeed the location of the line which should separate this from the rest of testator’s lands to be sold by the executors, was not, and is not yet definitely fixed; but John Leslie, one of the executors, states that this sale to Margaret was intended to include all the lands of the testator which the executors had power to sell, except 125 acres of the Vance farm. This would require Margaret to get 17 acres 3 roods and 16 perches of the Vance tract. And the testimony shows that there is now fenced and she is occupying 18 acres and 29 perches of that tract, in common with the Homestead farm.
    “ From this it appears that the actual amount of land sold by the executors to Margaret was 224 acres 3 roods 12 perches.
    “ It is to this sale to Margaret that the exceptors object.” * * *
    “ A large amount of testimony was taken on this exception, and in some particulars it is contradictory. The auditor having examined the testimony with care, finds that it establishes the following facts:—
    “ The actual amount of land sold to Margaret by the executors is 224 acres 3 roods 12 perches, though it does not appear that either the executors or Margaret knew the quantity at the time of the sale.” * * *
    “ On June 2d 1865 Edward McMillan, in presence of Robert S. Henderson, a witness, said to John Leslie, the executor who appears to have done most of the business, that the time had now come to carry the will into execution, meaning the time had come to sell this land. This was the second day after the death of the testator’s widow. McMillan then offered the executor or made a bid to him of $75 per acre for the Homestead farm, which as they then understood it, included all afterwards sold to Margaret but the corner out of the Vance farm as before described. McMillan went for the express purpose of making a bid to John Leslie for this farm, and took a witness with him. He told Leslie the time had arrived to make sale under the will, and gave Leslie notice that his (McMillan’s) wife wanted her father’s will carried into effect. Leslie neither accepted nor refused the bid. The bid was not stated to be a standing one; it was not afterwards repeated nor was it withdrawn. Leslie appears to have understood it to have been a standing bid to be accepted by him at any' time, as the testimony shows that he spoke frequently in the latter part of the year 1865, of the fact that he was offered $75 per acre by McMillan.” * * *
    “ John Leslie afterwards in speaking of this bid said he thought it was made by way of a taunt; and at another time expressed the idea that it was made in indecent haste after the death of his mother. McMillan at the time he made this bid and subsequently was the owner of property, real and personal, worth about $7500, and there is some evidence that he had made and was making arrangements to get assistance to pay for this property, if he purchased it, but he did not communicate this to the executors. When Margaret purchased she appears to have owned only what she received under her father’s will. The evidence shows that she was unmarried, about 50 years of age and somewhat delicate in health.
    “ The executors made some, though not a great effort to sell this land before it was sold. They gave notice that it was for sale, asked some parties to bid on it, but in every instance of that kind they informed the persons requested to bid that they had a bid of $75 per acre for it. The community knew the land was for sale and likewise that the bid of $75 per acre had been made. The executors in the fall of 1865 had a notice that this land was for sale inserted three successive times in two of the weekly newspapers published in New Castle. It was advertised for private sale.” * *'*
    “ From these facts the auditor concludes that this land was sold for a price far below its value. The executors say they estimated about 195 acres in the tract, and sold it for that amount. I do not know from what data they made these estimates. John Leslie did not himself feel certain that he knew the amount of land there. The most that can be said is, he guessed at the quantity. The sale was not made by the acre but by the tract, and it may be said, it was not necessary to know the contents. Yet I cannot but think that as trustees they should have known how much land they sold. That knowledge would certainly have assisted their judgments in fixing a price, had they been desirous to perform their duty faithfully, and especially so in this case, as $75 an aere had been offered for it, and John Leslie either understood this to be a bond fide continuing offer or his conduct respecting it is strong evidence of fraud on his part.” * * *
    “ It is argued McMillan had not the ability to pay.. It is true he had not the means to pay the whole price down; few men who purchase farms have such means. He had as much means as perhaps the majority of men purchasing farms have. As much at least as Margaret Leslie had to whom they sold, and enough to secure with the land itself the payment of the purchase-money, or pay any damages that might result from its non-payment.
    “McMillan’s bid was the value of the land, at the time, no more. If then the executors had accepted this bid as they should have done before selling for less money, or even had they only undertaken to inform themselves what amount the farm would bring at this price, they would have measured the land and not have sold it for so much less than it actually contained, but the history of error shows that one default always leads to another.
    “ Viewing this transaction in this light I am’ of opinion that it shows such negligence, such default on the part of these executors acting as they were in the capacity of trustees, as brings the case within the rule stated by Judge Rogers in Moore’s Appeal, 10 Barr 438, that a trustee may be surcharged beyond the actual profits where there is satisfactory proof of supine negligence or wilful default; and therefore surcharge the executors with the difference between the price they did receive, $12,000, and the price I find from the evidence they might and should have received, $16,861.87J, which difference is $4861.88§-.”
    The auditor on the basis of his findings stated a final administration account against the executors, which showed a balance in their hands of $3202.86.
    “ As to the statement or report of the disposition and sale of the real estate, the executors are surcharged with $4861.87|, so that instead of accounting for $12,000 as proceeds of sale of land sold to Margaret Leslie they shall account for $16,861.87|-as the price of said land payable in three equal annual instalments, the first instalment payable April 1st 1866.
    “ The auditor decides that the costs of this audit shall be paid by the executors.” ‘
    Exceptions were filed by the executors to the report of the auditor. The court confirmed the report and ordered the executors to pay all the costs.
    The executors appealed to thS Supreme Court and assigned for error:—
    1 and 2. Surcharging them with $4861.87 in the sale of the real estate in their administration account of the personalty, they being trustees and their account as such not being before the court.
    3. Not allowing the credits which the auditor struck from their administration account.

      D. S. Morris L. Taylor, for appellants. —
    The confirmation of the account was not binding as to questions not to be regarded as having been then passed upon: Keech v. Rinehart, 10 Barr 242; Rhoads’ Appeal, 3 Wright 186; Yeager’s Appeal, 10 Casey 173. The executors were but trustees as to the real estate: Chaffee v. Rich, 12 Harris 432; Aston’s Estate, 5 Wharton 228.

      ¡S. W. Dana (with whom were D. B. f JE. T. Kurtz), for appellees. —
    The Orphans’ Court had jurisdiction of the executors and the subject-matter: Springer’s Estate, 1 P. F. Smith 342; Rosenberger’s Appeal, 2 Casey 67; Shuman’s Appeal, 3 Id. 64; Kuhler v. Hoover, 4 Barr 321; Woodward’s Appeal, 2 Wright 828. As to the disallowed credits, he cited Rhoads’ Appeal, supra.

   The opinion of the court was delivered, January 3d 1870, by

Thompson, 0. J. —

The term “partial” account in the Orphans’ Court implies, ipso facto, that nothing is settled by it but those matters constituting the items in question in the statement itself. That was what was meant in Rhoads’ Appeal, 3 Wright 186; — ■ the case stands for that and no more.

It seems to us, therefore, that the auditor and court below administered the rule of that case erroneously in its application to this, and without giving the requisite consideration to the nature of the partial account filed by the executors of the will of George Leslie, deceased. It is true, they charge themselves with the appraised value and excess in the sale of the goods of the decedent, and also with the rights and credits due, described as cash on hand, bonds, notes and other evidences of debt, amounting to $3746.38, and they set forth their disbursements. Items of charge and discharge to the extent stated, had been administered and settled, and the account confirmed. But being a partial account expressly, and so intended by the executors, it did not operate in any way on items of charge or discharge not included in it, and it concluded only those that were. Subsequently, in their final account, the executors claimed credits not claimed in the partial account. These had mostly arisen when the test of collecting the debts, due the estate was applied. In some cases, receipts of the testator were in the hands of debtors, without being endorsed on the evidences of the debts due in the executor’s hands; and in others the debts proved entirely uncollectable. These were items of discharge against the charge of the debts to the executors in the inventory, which were not known, stated or passed upon in the partial account. It was insisted, however, that as the executors had charged themselves with the inventory of the debts due, in their partial account, that precludes any credit in their final account for partial payments of those debts, or of those which have turned out desperate. This is not correct, according to the principle of Rhoads’ Appeal. The charge of the debts due the estate did not preclude* credits. Those claimed now were not passed upon then, and of course, the case cited did not bar them. Had the credits been claimed and allowed, although erroneously, they would have stood, unless relieved by a bill of review.

To prevent a result like that claimed, the executors took the precaution in their partial account, by way of recapitulation, to define exactly what they charged themselves with, in dollars and cents, and the credits they claimed for disbursements. These disbursements were cash disbursements, not credits for receipts against claims, or for desperate debts, and thus far, therefore, that account is conclusive. The items excepted to and disallowed as credits by the auditor and court, not being in the partial account, were not determined by it, and should not have been excluded, on the principle of the case cited, and Shindel’s Appeal, 7 P. F. Smith 43, but should have been allowed as credits in the final account, if otherwise entitled on their merits. The items thus referred to are in the sixth exception to the executors’ account. Those views do not apply to the alleged mistake in the Clark voucher. It was passed upon in the partial account, and if it was passed upon as for a less sum than it ought, it can only be reformed or corrected on a bill of review.

We are, for these reasons, of opinion that the confirmation of the auditor’s report, so far as the personal estate is concerned, must be set aside to enable the court to send the account back to the auditor, so that the subject of the exception mentioned may be considered and reported upon.

The next two exceptions, being the first and second in their order, to the decree of the Orphans’ Court, raise the question whether the accounts of the executors in relation to the management and sale of the real estate of the decedent were before the Orphans’ Court in such a form as to authorize that court to proceed to investigate and decree upon them, and to surcharge them with a supposed loss on the real estate by their negligence or mismanagement in the sale of it. It was a large surcharge, equal to the one-third of the price at which it was sold.

An objection to the action of the court was that the statement made by the executors in.answer to the citation, was that it blends the trust account of the executors, arising out of their trust of the realty, with the personal estate. But that seems not to be accurate. It is true that the statement of the executors showing the sale of the real estate, and the amount received therefrom, and the balance due, was made on a citation requiring it to be filed in the register’s office at the same time they were cited to file a final account of the personalty. The executors filed their account of the realty there. This was but an irregularity, which ought not to vitiate what was done in regard to it in the Orphans’ Court after it was certified there by the register. This court had undoubted jurisdiction of this account, as appears by the 19th section of the Act of 16th of June 1836, Art. YIII. But the statement was not blended with the executors’ account of the personalty. It is a separate statement, and although irregularly brought into the Orphans’ Court, it was not objected to in limine for that reason, but proceedings were suffered to go on to a large extent and to a final decree upon it. The court having jurisdiction of the subject-matter, and its exercise being acquiesed in by those interested, it is too late now to object to matters of form in the proceedings.

The statement in regard to the sale of the realty being separate from that of the executors’ final account of their administration of the personalty, filed at the same time, is an answer to the objection founded on Aston’s Estate, 5 Wh. 228. It is true that in what the executors call their statement in regard to the sale of the realty, and which the court treated as an account, no charge for commissions and expenses appears. Why they were not claimed does not appear, hut this was the neglect of the executors, and the decree of the court cannot be set aside for that reason. We think the statement or account of the sale, was well and substantially before the court, and it was not error to refer it to an .auditor on exceptions filed. This dismisses the exception as to form.

There is another exception, which is- the second that remains to be noticed. It is claimed in this that the executors were acting in regard to the real estate as trustees, and not as executors, and that the proceeds of the realty was no part of their administration account, and that the court erred in referring the statement made by them to an auditor, and afterwards in surcharging them with the sum of $4861.87, in accordance with the auditor’s-report.

Being testamentary trustees, as the executors were, brought them within the jurisdiction of the Orphans’ Court, as already said, beyond a question. At the very most, the Common Pleas might, in such a case, have concurrent jurisdiction, if jurisdiction at all. We do not mean to enter the field of discussion as to this; suffice it, that the 19th section of the Act of June 16th 1836, gives jurisdiction to the Orphans’ Court in a testamentary trust like this: 4 W. & S. 433; 1 Harris 79; 1 Wh. 104. Considering the executors’ statement brought into the Orphans’ Court by citation, although irregularly, but only so, it was not error to refer it to an auditor. Here without exception as to form, the battle was. fought on the question of whether the executors had done their full duty in selling that portion of the real eastate returned as sold to Margaret Leslie, at the sum of $12,000, payable in instalments, without interest.

The testimony is not before us on which the auditor adjudged the executors surchargeable, and we can go no farther than to see whether the principles upon which he proceeded were accurate or not. He finds as a fact, from calculation based on the sale of the Vance farm, that the amount of land included in the land sold to Margaret Leslie, was 229 acres 3 rods and 12 perches; that the executors had a bid of $75 per acre from Edward McMillan immediately after the death of the widow of the decedent. This bid was made before, in fact, the land was advertised for sale, and it was neither withdrawn nor renewed afterwards, when the land was by advertisement notoriously for sale; but the auditor finds that the executors always represented that they had a bid of $75 per acre by persons looking at the property with a view to buy ; and that, notwithstanding, they sold it to Margaret Leslie in January 1866, for about $53.38 per acre. The executors insisted that they had sold to her only 195 acres. Had this been so, it would not have equalled the bid made by half the amount of the surcharge. But then the auditor finds that the executors sold to her in fact 224 acres, and properly enough concluded that they are not exonerated from responsibility if they acted so negligently as to sell largely more than they intended. Without discussing this more in extenso, the auditor finds, what must be a finality to this controversy in the absence of anything to show an error in it— viz., that “ the fair market value of the land in 1865, after the death of the widow, when the executors advertised it and offered it for sale, was $75 per acre. This was its market value from the death of the widow till the time it was sold. The market value has decreased somewhat now.” “ These,” he adds in another paragraph, “appear to be the facts of the case.”

All this might have been true, and still there might have been an excuse for the executors not selling, but it does not appear in the auditor’s report, and we have no testimony before us to enable us to review him on the fact.

The auditor also found that McMillan’s bid should have been regarded by the executors; that it was not necessary that he should have repeated it, especially as the executors treated it as a standing bid by declaring that they had a bid at that price for the land; — and furthermore, that McMillan was of sufficient ability to make good his bid, as much so as Margaret Leslie was to make good her’s. The auditor winds up his report as follows: — “ Viewing this transaction in this light, I am of opinion that it shows such negligence, such default on the part of these executors, acting as they were, in the capacity of trustees, as brings the case within the rule stated by Rogers, J., in Moore’s Appeal, 10 Barr 438, that a trustee may be surcharged beyond the actual profits where there is satisfactory proof of supine negligence or wilful default; and therefore surcharge the executors with the difference between the price they did receive, $12,000, and the price I find from the evidence they might and should have received, $16,861.87J, which difference is $4861.87J.” This is a finding of supine negligence on part of the executors in the sale of the property in question, whereby the cestuy que trustents would be greatly damaged unless they are surcharged. The rule to surcharge in such cases to the extent of the injury is not to be doubted: Moore’s Appeal, supra; Springer’s Estate, 1 P. F. Smith 342.

The able argument of the counsel for the appellants might cause a doubt of the accuracy of the auditor’s finding; but he put us in possession of nothing by which it could on the facts be tested, and set aside, if wrong. We are, therefore, constrained to affirm the decree of the court in so far as it relates to the account of the executors in the management and sale of the real estate; but we reverse, as already stated, the decree confirming the executors’ account of the personal estate, with costs to be paid by the appellees. As to the account confirmed, the costs are to be paid by appellants.

We think that the court should open the decree thus declined to be affirmed, in order to allow the executors to present any claim they may have for disbursements and expenses incident to the sale of the real estate, and accruing thereon. This would be equitable and just, and is recommended to the court.

It seems there was an issue ordered and tried to inform the conscience of the court as to some of the controverted matters, perhaps before the auditor. It is probable that its result may have confirmed some of the findings of the auditor. This we do not know, however, but that issue is not before us in any shape or form. The decree of the court seems to have been based upon the auditor’s report alone, and so was the argument here. We have nothing to do with the feigned issue, as no part of it is before us.

Let the entries be made as indicated above in this case.


author: Sharswood, J. —

text:
    Huss et al. versus Morris et al.

    1. The mistake of a scrivener in preparing a writing may be shown by parol evidence, and the instrument reformed accordingly.
    2. Such reformation is an exercise of the equity powers of all our courts.
    3. Equity relieves against mistake as well as against fraud.
    4. In a voluntary conveyance our courts will not distinguish between children and grandchildren in the exercise of their equitable powers in correcting a plain mistake in a conveyance intended for their benefit.
    5. This would be especially so when the correction is made to render valid and effectual what would otherwise be void-for informality.
    6. Mistakes may be so apparent on the face of an instrument that courts will construe it as it ought to have been drawn.
    7. The liberality of courts has been particularly exercised as to the statement of the consideration both in correcting what is wrong and inserting what has been omitted.
    8. “Grandchildren” substituted, by parol evidence, for “heirs of my son,” in a deed in this case.
    November 19th and 20th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.

      Error to the Court of Common Pleas of Crreene county: No. 114, to October and November Term 1869.
    This was an action of ejectment, commenced March 16th 1866, by Eleanor A. Iiuss and others, children of Andrew Lantz, Jr., deceased, against Elijah Morris and others, for the undivided fifth part of a tract of 430 acres of land. Both parties claimed title under Andrew Lantz, Sr., deceased.
    On the trial, February 18th 1869, before Gilmore, P. J., it was proved for the plaintiffs that they were grandchildren of Andrew Lantz, Sr., and were all born in his lifetime.
    The plaintiffs gave in evidence a deed dated June 26th 1853 “between Andrew Lantz, Sr., of, &e., of the first part and the heirs of his son Andrew Lantz, Jr., of, &c., of the other part.” The deed witnessed “ that the said party of the first part for the natural love and affection he hath for said heirs as well as for and in consideration of the sum of one dollar,” &c., granted to “the said party of the second part and to their heirs and assigns for ever,” all the following described tracts of land,” &c. This deed covers the land in question in this suit.
    They gave in evidence another deed of the same date “ between Andrew Lantz, Sr., of, &c., of the first part and the heirs of Andrew Lantz, Jr., of, &c., of the other part.” It witnessed, “ that the said party of the first part for the natural love and affection he hath for his grandchildren as well as for and in consideration of the sum of one dollar,” &e., granted, “to the said party of the second part and to their heirs and assigns for ever, all the following described tracts,” &c. Both deeds were acknowledged before the same justice, January 2d 1854, and recorded April 11th 1859.
    The plaintiffs called Joseph L. McConnell, who testified:—
    “ I drew the deeds which have been read; I wrote the deeds at the instance of Andrew Lantz, Sr.; I think he gave me the same instructions for the filling up of both deeds; I cannot tell how I came to leave out the words ‘ for the love and affection he hath for his grandchildren;’ I cannot tell why I left it out; I am satisfied I received the same instructions from the old man ; cannot say why I left it out, or that it was an accident or a mistake that I left it out. We first talked of leaving it in trust to somebody for them (the children of Andrew Lantz, Jr.), he named them over or counted them over; he then said he did not know, how many might be born, he wanted the children all equal; he called them his grandchildren, Andrew’s children and his heirs, more often Andrew’s children, and when he thought more might be born, he called them Andrew’s heirs; as near as I can recollect, he told me how to fill up the deeds, and I cannot distinguish, but I know he mentioned heirs, grandchildren and Andrew’s children; he told me to fill up the deeds in that way; he said he was satisfied there would he more born; said he wanted to make the deeds legal; I am satisfied the instructions for both deeds were the same, hut I don’t know how it happened I made them different; he said he wanted to make the deeds legal. I think I drew the deed last given in evidence, first.”
    On cross-examination he said: — “ The word heirs was put in to avoid the difficulty about the after-born children; he directed it to be put in that way, for this reason; I read over the deeds; I am not certain that he signed them till he went to acknowledge them; he had the deeds in his own possession till after they were acknowledged.”
    Andrew Lantz,. Sr., by his will, dated September 5th 1857, devised- all his lands not already conveyed away, to his five children, share and share alike.
    The youngest child of Andrew Lantz, Jr., was born after the date and acknowledgment of the deed.
    Andrew Lantz, Sr., died in 1859.
    Andrew Lantz, Jr., died in 1862.
    The plaintiff’s points were:—
    1. From the deeds in evidence and the testimony of McConnell, the jury may find that Andrew Lantz, Sr., instructed McConnell to describe the grantees in the deed for the land in dispute exactly as in the other deed, and that the words “ natural love and affection he hath for his grandchildren,” were left out of the deed conveying the land in dispute by the accident or mistake of the said McConnell, when he drew the deed, and if they should so find the facts, then the deed is a sufficient conveyance in law and equity, to the plaintiffs, and they are entitled to recover, as the defendants admit the title to have been in the grantor.
    2. If the jury believe the evidence of Joseph L. McConnell, that he wrote them (the deeds) at the instance of Andrew Lantz,, Sr., under the following instructions, viz.: “ He (Andrew Lantz, Sr.), gave me the same instructions for filling up both deeds. I drew the small deed first, and both deeds at the same time”— “ named over Andrew’s children, his grandchildren” — the deeds being between the same parties, written at the same time, relating to the same subject-matter, and from grandfather to grandchildren, are to be treated as one conveyance, and as if the word “grandchildren” were in the deed for the land in dispute, and the plaintiffs are entitled to recover.
    3. If the court should charge against the plaintiffs on the foregoing points, then they are respectfully requested to charge as follows: that as both plaintiffs and defendant claim title under Andrew Lantz, Sr., and the plaintiffs having shown that they are the children and heirs of Andrew Lantz, Jr., they are entitled to recover under the deeds given in evidence.
    The court charged:—

      “This is an ejectment for the same land, same parties and title which we find reported and decided in 10 Wright 200. We see plainly that the authority of that case is questioned and doubted, but it does not follow from this that it is or ever will be overruled, and as it is decisive in the very case trying, we must adhere to it.
    “ The plaintiff endeavored to show that the scrivener departed from the instructions of the grantor in drawing the deed, that this was an accidental omission and mistake, and that in equity he has a right to show this by parol evidence, and have the deed read or reformed to correspond with these omitted instructions. We recognise their right to do so, and have permitted them to make the attempt, and we have also allowed them to read another deed from the same grantor to those who are alleged to be the same grantees, and which was executed on the same day, and written immediately before the deed upon which plaintiff’s title rests; and this for the purpose of explaining the instructions and corroborating the witness. The late Chief Justice in 11 Casey 215, said, 4 we have got far away from the rule that is laid down in Starkie on Evidence, part 4, 1009, that parol evidence is inadmissible for the purpose of altering the legal operation of an instrument;’ so that under the relaxed rules of evidence on this subject, we have no difficulty in allowing the introduction of the evidence; but seeing that these rigid rules of evidence have been changed in some measure (for in allowing the evidence we are exercising the functions of a chancellor), we consider it our duty, when exercising these equitable powers, to hold the matter well in hand, and not commit the case to a jury, unless the offer is well made out. We ought to leave nothing of substance to mere inference, conjecture or supposition, and whenever the evidence amounts to nothing more, to withdraw the decision from the jury. We shall do so here, and decide that it is not sufficiently proven by Mr. McConnell, the scrivener (and the only witness on the subject-matter of accidental omission and mistake), that there was such omission and mistake in drawing the deed, as is alleged. Here the grantor knew his grandchildren, could name and number them, but the difficulty in his mind was that he supposed his son Andrew might have more children, and he concluded, as he wished them all to be equal, that this was the proper mode of designating them. The witness says, 41 am satisfied that the instructions for both deeds were the same] but I don’t know how it happened that I made them different; he said he wanted to make the deeds legal. I think I drew the deed last given in evidence, first.’ Then on his cross-examination he says : 4 The word “ heirs” was put in to avoid the difficulty about the after-born children; he directed it to be put in that way, for this reason. I read over the deeds to him.’ After such .evidence, it is the duty of the court to say that the offer is not proved, and that there is no such evidence as would allow the correction of this deed. As to the intent of the grantor, there can be but one opinion. By the enforcement of this technical rule it is clearly frustrated.
    “ This is our answer to the 1st and 2d points.
    “ As to the 3d point we say, if we comprehend its import, that this action is not brought by the plaintiffs as tenants in common or coparceners for undivided parts, against co-tenants and coparceners, and therefore if not entitled to recover the whole they cannot recover undivided parts of the whole. This point we think is rather an afterthought, as we have no recollection that the children of Andrew Lantz, Sr, were named. Plaintiffs except.”
    The verdict was for the defendants.
    The plaintiffs took a writ of error and assigned the answers to their points for error.

      A. A. Purman (with whom was N. Pwing), for plaintiffs in error. —
    The second deed was a sufficient conveyance: Huss v. Stephens, 1 P. F. Smith 282; 4 Id. 25. There being both written and parol evidence, the question of mistake was for the jury: Sidwell v. Evans, 1 Penna. R. 386; Welsh v. Dusar, 3 Binn. 329; Dennison v. Wertz, 7 S. & R. 172. A deed may be reformed by parol evidence: Chalfant v. Williams, 11 Casey 212; Starkie on Ev., pt. 4, p. 1009; Bank v. Fordyce, 9 Barr 279; Miller v. Henderson, 10 S. & R. 290; 1 Greenl. Ev., § 296, a; Rearich v. Swinehart, 1 Jones 238; Musselman v. Stoner, 7 Casey 270. Additional consideration may be proved by parol: Jack v. Daugherty, 3 Watts 151; Lewis v. Brewster, 7 P. F. Smith 410. Absolute deeds may be shown to be mortgages: Reitenbaugh v. Ludwick, 7 Casey 131; Buckley’s Appeal, 12 Wright 496; County of Blair v. Royer, 7 Id. 146; Edwards v. Trumbull, 14 Id. 509; Kunkle v. Wolfersberger, 6 Watts 130; Jacques v. Weeks, 7 Watts 261. The two deeds in evidence were together intended to be the fulfilment of the same original purpose and should be construed together: Kerr v. Gilmore, 6 Watts 406. Intention may be discovered from extraneous circumstances: Wharf v. Howell, 5 Binn. 503; and these deeds may be construed as one: Jackson v. Dunsbagh, 1 Johnson’s Cases 91. Deeds are to be construed so as to effectuate the intention of the parties, and where the intent to pass land one way or another is apparent the conveyance may be good either way: Means v. Presbyterian Church, 3 W. & S. 303; Bryan v. Bradley, 16 Conn. 474. The question is whether the intent is sufficiently evinced by the words of the deed and the circumstances at the time of the execution. When words may have two meanings, that which will effectuate the intention of the parties will be adopted: Bagshaw v. Spencer, 1 Vesey 147; Lisle v. Grey, 1 Ld. Raymond 315; Brooking v.
      White, 2 Wm. Bl. 1016; Burchett v. Durdant, Carthew 154; Brown v. Barkham, Prec. in Ch. 461; Beaumont v. Long, Fortescue 18; Walker v. Snow, Palmer 359; Doe v. Perratt, 5 B. & C. 48. The deed here acknowledged and recorded has the same effect as livery: Murphy v. Hubert, 4 Harris 59; Sprague v. Woods, 4 W. & S. 194. The deed may be considered a covenant to stand seised, there being both a valuable and a good consideration: 4 Cruise’s Dig., tit. 32, ch. 12, 33; Sprague v. Wood, supra; Coke Litt. 271, Butler’s note, 231. The construction of deeds must be liberal and according to the popular meaning of the words describing the grantees: Broom’s Leg. Max. 226; Sheppard’s Touchstone 234-237.

      ■J. Veech and O. A. Black (with whom were Wyly Buchanan), for defendants in error. —
    The deed is void for uncertainty: Morris v. Stephens, 10 Wright 200. The evidence of McConnell was insufficient to prove mistake: Morris v. Stephens, supra; Huss v. Stephens, 1 P. F. Smith 282. One deed could not interpret the other: 1 Greenl. Ev. 283. The presumption is that “heirs” was used in legal sense: Guthrie’s Appeal, 1 Wright 9; Criswell’s Appeal, 5 Id. 290; Ellmaker v. Ellmaker, 4 Watts 89; Hileman v. Bouslaugh, 1 Harris 344; Auman v. Auman, 9 Id. 343; Hall v. Leonard, 1 Pick. 27; 2 Hilliard on Real Property 234; Burton on Real Property, §§ 442, 516, 529; Coke Litt. 231 a, 280 b; Jackson v. Tibbits, 9 Cowen 241.
   The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

It is the well-settled law of this state that the mistake of a scrivener in preparing a deed or other writing, may be shown by parol evidence, and the instrument reformed accordingly. It is but an exercise of the equity powers inherent in all our courts, from the earliest days of the province. Many of the cases are complicated with fraud either at the time of the execution of the writing or in subsequently setting it up contrary to the agreement and understanding of the parties. The cases are too numerous to cite, but I will content myself with referring to a few in which the element of fraud had no place: Hamilton v. Asslin, 14 S. & R. 448; Gower v. Sterner, 2 Whart. 75; Farmers’ and Drovers’ Bank v. Fordyce, 1 Barr 456; Chalfant v. Williams, 11 Casey 212. The English cases are all examined, with his usual ability, by Chancellor Kent in Gillespie v. Moon, 2 Johns. Ch. 585, and the rule fully established that equity relieves against a mistake as well as against fraud. In Watts v. Bullas, 1 P. Wms. 60, where I. S. made a voluntary conveyance to his brother by the half blood, which was void and defective at law, Lord Keeper Wright was of opinion that as the consideration of blood would at common law raise an use, so would this imperfect conveyance raise a trust in respect of the consideration of blood, and consequently ought to be made good in equity, and in the same case the Master of the Roíls is reported to have said that a devise of a copyhold without a surrender ought to be made good for grandchildren as well as children, an opinion concurred in by Lord Harcourt in Freestone v. Kant, 1 P. Wms. 61, n. Some doubts have bee. thrown upon the authority of this case because later equity cases have confined the interference of that court in supplying defects in the execution of powers to creditors, wife and children. But Chancellor Kent cites Watts v. Bullas with apparent approbation, 2 Johns. Ch. 599; and our courts certainly will not distinguish between children and grandchildren in the exercise of the equitable power of correcting a plain mistake in a conveyance intended for their benefit, especially when it is for the purpose of rendering valid and effectual what would otherwise be void for informality. The natural affection of grandparents is generally as strong as that of parents, and the Act of Assembly of June 13th 1836, § 28, Pamph. L. 547, has recognised the closeness of this relation by imposing upon the parties the reciprocal obligation of maintenance.

The learned judge in the court below did not deny this, for he admitted the evidence offered to show the mistake: the deed for the other farm and the testimony of the scrivener; but he thought, after having heard it, that it was not enough to be submitted to the jury. In determining whether he was right in this we must consider what was the mistake alleged. It was not a mistake in the grantees. It may be admitted that the evidence of any mistake as to them failed* entirely. But the attempt was to show that the words “ said heirs” had been introduced into the consideration clause for the words “his grandchildren” by the mistake of the scrivener. Both deeds were drawn by him at the same time, and* as he testified, under the same instructions. When we look at the expression of the consideration it would scarcely seem to need the testimony of the scrivener to prove that it was a mistake. Mistakes are sometimes so apparent on the face of an instrument that the courts will construe the instrument as it ought to have been drawn. What natural love and affection could Andrew Lantz feel for the heirs of his son, if these words are to be construed in their technical sense ? It is very plain that he meant children, though a court might not feel itself in this case at liberty to have said so without some extrinsic evidence. No use could be raised on such a consideration. The words include not only the whole line of the son’s descendants but his remote collaterals, many of whom might not even be of the blood of the grantor. It would not require much evidence to satisfy the mind that “ his said heirs” was a mistake in that place. Free as the courts have been in admitting parol evidence to correct mistakes, that liberality has been more particularly exercised in reference to tbe statement of tbe consideration not only in correcting wbat is wrong but in inserting wbat bas been omitted: White v. Weeks, 1 Penna. R. 486; Jack v. Daugherty, 3 Watts 151; Hayden v. Mentzer, 10 S. & R. 329; Strawbridge v. Cartledge, 7 W. & S. 394. It is plain, then, upon the testimony of tbe scrivener, that when, in explaining bis intentions, Andrew Lantz spoke of bis grandchildren — named them over and counted them — and called them Andrew’s heirs, be referred to them as tbe objects of bis love and affection, which was tbe moving cause of the gift be was about to make. This is no way lessened by bis insisting that tbe grant should be made to tbe heirs of bis son, because be thought that word necessary to include those who might thereafter be born as well as those then living. We think the learned judge was in error in taking the case from the jury. As a chancellor it ought to have satisfied him if the jury believed it. If the consideration clause in the deed is reformed so as to read for the natural love and affection he hath for his grandchildren,” it would be a valid conveyance, according to Huss v. Stephens, 1 P. F. Smith 282, and Stephens v. Huss, 4 Id. 25. The only error assigned is to the charge of the court in withdrawing the evidence of mistake from the jury, and we are not, therefore, required to re-examine the grounds of the original decision upon the deed now in question in Morris v. Stephens, 10 Wright 200.

Judgment reversed, and venire facias de novo awarded.


author: Agnew, J. —

text:
    Shreiner versus Cummins.
    1. In reviving a debt barred by the statute, the debtor may impose conditions by which the creditor will be bound.
    2. In a promise to pay a barred debt, the consideration is the moral obligation only and the assumption is wholly voluntary on the part of the debtor.
    3. Shreiner and Cummins sold land to each other, agreeing that if either tract fell short the seller was to make it up. More than six years afterwards Shreiner sold another tract to Cummins, and stipulated “that an alleged deficiency in the land traded between” them is to be submitted to “ Cunningham, and if any balance be found against Shreiner it is to be a credit on the land (last) sold.” Held, that this was a new undertaking, and the claim for deficiency in the first sale was not barred by the statute.
    4. The contract was a sale of land, of which the agreement for the deficiency was a material part.
    5. It was -to be enforced not as the revival of a barred debt, but as an original contract.
    6. Interpreting the last contract with the first, “ the land traded” refers to that conveyed .in the first.
    7. The whole value of the deficiency under the first contract was to be a credit on the purchase-money of the second.
    8. Cummins was entitled to a verdict for the excess of the deficiency over the purchase-money.

      9. The reference to Cunningham was but a mode of ascertaining the sum; Cunningham having died, the debt was not to be considered extinguished, but must be left to the judicial tribunals.
    10. Cunningham’s death being the act of God the parties were not injured by it.
    11. Potter o. Sterrett, 12 Harris 411, remarked on.
    November 22d 1869.
    Before Thompson, 0. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Beaver county: No. 222, to October and November Term 1869.
    This was an action of covenant, to September Term 1867, brought by Charles H. Shreiner against Samuel P. Cummins for the balance of purchase-money on a tract of land sold by Shreiner to Cummins. The facts which gave rise to the controversy are these:—
    On the 7th of July 1858 Shreiner conveyed to Cummins two tracts of land in Beaver county. It appeared that on the same date Cummins conveyed land to Shreiner. At the same time the parties entered into this agreement in writing, but not under seal:—
    “We do hereby agree that if either of the undersigned wishes to survey the land purchased from the other, he can do so ; and in case either tract overruns, the buyer is to pay for the overplus, and if either falls short, the seller is to make it up.”
    On the 10th of December 1864 Shreiner by articles sold to Cummins a tract of land in Wisconsin for if1050; the purchase-money to be in part discharged by the payment by Cummins of certain liabilities of Shreiner specified in the articles. The articles contained this additional stipulation:—
    “ It is also agreed that an alleged deficiency in the measure of the land traded between Shreiner and Cummins, is to be submitted to Hon. Thomas Cunningham ; his decision to be final; and if any balance should be found thereon against Shreiner, said balance is also to be a credit for Cummins on said 160 acres of land sold by this agreement.”
    Cummins paid the liabilities of Shreiner as agreed upon in the articles; this left a balance still due Shreiner; for that balance this action was brought. Cummins alleged that on a survey which had been made of the land, in Beaver county, sold by Shreiner to him there was a deficiency in the quantity, the value of which he claimed to set off against Shreiner’s claim under the covenant.
    The court charged:— * * *
    [“The plaintiff contends that the Statute of Limitation had barred any claim which the defendant might have had against the plaintiff for a deficiency in the quantity of the land conveyed by the deed of 7th July 1858, and that there is not that explicit recognition of the original contract and promise to pay for said deficiency in the article of agreement of the 10th December 1864 which would take the case out of the statute and enable the defendant to recover. Whether it be true or not that the defendant’s claim founded on the writing of 7th July 1858 was barred at the date of the Wisconsin article, we are of the opinion that the parties intended by the clause in the article to which we have referred, to revive the claim and give it the same force and effect it originally had.] It is one of the terms of the Wisconsin agreement that the alleged deficiency in the Beaver land should be ascertained and settled, and this may have been the inducing cause with the defendant to enter into it. .
    [“But the plaintiff further objects that the parties undertook to create a tribunal of their own for the determination of this disputed question, and that the defendant therefore cannot claim .to have it inquired into and settled in this suit. Hon. Thomas Cunningham, to whose final arbitration it was submitted, died without having heard the parties or making an award. The act of God injures no one, and the law will remit the parties to the proper legal tribunal to settle their rights.] It is further urged by plaintiff that the defendant can only make use of his claim, under his plea of set-off as a credit against the purchase-money remaining unpaid in the contract.” * * * [“The plaintiff asks us to instruct you that you can apply the estimated value of this deficiency only by way of credit to reduce or defeat the plaintiff’s cause of action, but that the defendant cannot recover for any excess to which he might otherwise have been entitled, by means of a certificate at your hands. We think, however, that such an interpretation would be too narrow to fulfil the intention of the parties.” * * *
    “ Taking into view the original writing accompanying the deed and its subsequent recognition in the agreement of December 10th 1864, we are of opinion that to limit the defendant’s claim upon his set-off by what may now be due on the article, and deny him the right to hold the plaintiff accountable in this suit for all that the deficiency in the land may be fairly worth, would not accord with the true intent and meaning of the contract. We therefore instruct you that if you believe the evidence, the defendant is entitled to recover the Whole amount of his set-off, to be applied first, to the balance of the purchase-money coming to the plaintiff on the contract, and for what may remain the defendant is entitled to a certificate in his favor.”]
    The jury found for the defendant and certified in his favor for $-.
    The plaintiff took out a Writ of error and assigned for error the parts of the charge embraced in brackets.

      L. Taylor, for plaintiff in error. —
    There was something to be done by Shreiner, and it should have been done within six years: Morrison v. Mullin, 10 Casey 12; Laforge v. Jayne, 9 Barr 410; Railroad v. Graham, 2 Grant 259. The article of December 10th 1864 did not revive the promise; it had not specific reference to the claim or the amount of indebtedness: Huff v. Richardson, 7 Harris 388. A conditional promise is available only when it is shown that the condition has been performed: 2 Parsons on Contracts 350; Graham v. Keys, 5 Casey 189; Nelson v. VonBonhorst, Id. 352. A cross-demand must be complete when the action is instituted: Pennel v. Grubb, 1 Harris 552. As to the reference to Cunningham the power was terminated by his death: Potter v. Sterrett, 12 Harris 411; Marseilles v. Kenton, 5 Id. 238.

      II. Sice and 8. B. Wilson, for defendant in error.
   The opinion of the court was delivered, January 31st 1870, by

Agnew, J. —

We do not doubt that in reviving a debt barred by the Statute of Limitations the debtor may impose conditions by which the creditor will be bound. In a promise to pay a debt barred by the Statute the consideration is the moral obligation only, and the assumption wholly voluntary on part of the debtor. He may, therefore, make terms. But is that this case ? The undertaking here was not one of mere revival. It is a part of a new and independent agreement for a different and a valuable consideration— one.not pre-existing, and concurrent in time with the new contract. The transaction was a sale of land by Shreiner to Cummins, of which the agreement for the deficiency was a material part. Non constat that Cummins would have bought had not Shreiner agreed to credit the deficiency in the former sale. The agreement being new and for a different subject, this part of it must be viewed, as a material and essential element in the contract, to be enforced not as the mere revival of a barred debt, but as an original contract, and hence the only question before us is its interpretation. The subject-matter of this clause is simply referred to, not described; and is therefore to be ascertained by evidence de hors the writing. What land was traded between these parties ? What alleged deficiency had been claimed ? These questions are not answered by the agreement. Therefore the parties must resort to evidence aliunde, and in this way the agreement of 1858 is introduced into the case as the inducement, which led to this clause in the contract of 1864. The explanatory evidence being in, it throws light on the interpretation of the new agreement. Now it is clear that by the agreement of 1858 the parties made the price of the deficiency a debt to be refunded by express terms. Certainly it was this debt which was referred to Mr. Cunningham to ascertain; for it was the alleged deficiency in the measure of the land traded, lie was to report upon. It was not a part of the deficiency, hut the whole of it, he was to determine. Then if any balance should be found against Shreiner, it was that balance, the whole sum thus ascertained, that was to be the subject of the credit. The subject of the contract of 1864 in this respect was undoubtedly the same as that of 1858. The parties meant by the agreement of 1858 that the whole deficiency should be paid for. Did they mean less than this in 1864 ? If they did it was most natural that they should express it, but they did not. They meant the whole deficiency to be a credit on the new purchase. But it turns out that the deficiency is greater than the unpaid balance of the agreement of 1864, and cannot all be credited. Is the excess to be lost to Cummins ? Certainly not, unless this was plainly the intention of the parties. But how can we say this, when they evidently contemplated the ascertainment of the deficiency as a whole, and not as a part only; and provided that the whole sum found should be credited. It is not contended that less than the whole should be credited, if the balance unpaid on the agreement of 1864 were sufficient to absorb the whole. Then what have we to convince us that less than the whole debt should be paid ? The credit was but a means of payment, and doubtless the parties supposed that the balance on the agreement of 1864 would absorb it, but the intention to provide for the whole deficiency is too palpable, when this provided means of payment fails in part, to authorize us to reject the excess, and say it cannot be recovered. If the intention to sink the excess were apparent, we would be bound to follow it, but not being so, we must hold that the evident intention to pay for the whole deficiency in measurement, cannot be controlled by the accidental fact that the credit on the agreement of 1864 will not absorb the whole.

The deficiency being thus recognised as a debt to be paid, the reference to Mr. Cunningham was but a mode of adjusting the sum. Hence his death, which was an act of God, is not to be considered as extinguishing the debt, but its ascertainment, being thus prevented by the act of God, must be left to the judicial tribunals of the country if the parties cannot agree upon another mode. The question in Potter v. Sterrett, 12 Harris 411, was upon the award. Death of an arbitrator without provision for substitution, ended the power to award, and of course the award fell. But here the question is — did the debt survive ? We think it did, and it was only the means of determining its amount which failed, and this being providential the parties are not injured by it.

Judgment affirmed.


author: Per Curiam. —

text:
    Syracuse Pit Hole Oil Company versus Carothers.
    1. A verdict was rendered October 23d 1867, and a rule for a new trial granted March 28th 1858. Held to be error, no such motion could be made and granted so long after verdict.
    2. The motion would have been too late under any circumstances whilst the judgment stood in full force.
    3. The order granting the new trial was reversed in this case.
    November 22d 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Venango county: No. 138, to October and November Term 1868.
    On the 25th of June 1866, the Syracuse Pit Hole Oil Company issued a writ of replevin against J. A. Carothers and Charles Moore, for an engine and a number of other chattels. The sheriff returned, “ Replevied as within commanded, and property left in possession of defendants, they having filed property bond; also summoned defendants by reading this writ to them.”
    The defendants pleaded “ non cepit and property.” On the 18th of October 1867, the jury found for the plaintiff $1493.85.
    On the 23d judgment was entered on the verdict. On the 26th a fi. fa. was issued which was returned “ Nulla Bona.” November 30th a testatum fi. fa. was issued to Allegheny county. On the 21st of March 1868, the affidavit of the defendant, Carothers, was filed, and a rule to show cause why there should not be a new trial was granted. On the 3d of July 1868, the rule was argued before Trunkey, P. J., and McCormick, A. J. Same day Judge Trunkey filed an opinion for discharging the rule; Judge McCormick not concurring. This paper was afterwards filed :—
    “ And now, September 5th 1868, rule made absolute.
    R.j S. McCormick,
    James L. Connelly.”
    McCormick and Connelly were associate judges. The minutes of the Court of Common Pleas show that on September 5th 1868 Judges Trunkey and McCormick only sat.
    The plaintiffs took a writ of error, and assigned the following errors: — ■

      “ 1. Associate judge, James L. Connelly, was not present on the day the rule was marked made absolute, by the associates.
    “ 2. The associate judges erred in making absolute the rule to show cause why a new trial should not be granted.
    “ 3. The court erred in making absolute the rule to show cause why a new trial should not be granted.”
    On the hearing in the Supreme Court, J. K. Kerr, Esq., for defendant in error, moved to quash the writ of error.

      A. Blalcely, for plaintiff in error. —
    The court being divided when the argument was heard and the opinion of the president judge delivered, the rule was necessarily discharged: Lanning v. Brown, 4 W. C. C. R. 332. The dissenting associate could not hold the decision. The motion for a new trial was too late: Burrell v. Du Bois, 2 Dallas 229; Lane v. Shreiner, 1 Binney 292. An order which may injure a party is the subject of a writ of error: Adams v. Rush, 5 Watts 289. The grant of a new trial did not vacate the judgment nor set aside the verdict, and the plaintiffs cannot therefore go on to trial nor can they issue execution because a new trial has been granted: Huston v. Mitchell, 14 S. & R. 307.

      J. K. Kerr, for defendant in error.
   The opinion was delivered November 26th 1869.

Per Curiam. —

It is seldom we have seen anything so disorderly and erroneous as the proceedings in this case are shown by the record to be. Eour months after verdict and judgment thereon, a rule to show cause why a new trial should not be granted was entertained by the associate judges. Two months thereafter this motion was argued before the president and one associate. The motion fell by a divided court. Afterwards, however, by paper filed, the associates granted a new trial. One of the judges, it would appear, never heard the argument. Be that as it may, no such motion could be made or granted so long after trial and verdict. Nor could it be done, with a judgment standing in full force, under any conceivable circumstances. It wa's a step in the wrong direction for associates to interfere in a matter of this kind, and it is to be hoped that the example will not be followed. If such a proceeding could be tolerated litigation would but begin where it ought to end, with the judgment. The order granting a new trial is reversed and set aside, and the motion to quash this writ of error is overruled. Let this entry be made and the record remitted, to be proceeded in according to law.