text:
    Driesbach et al. versus Morris et al.
    1. The Act of April 9 th 1833 provides that if a defendant in an action before a justice of the peace shall tender, either on the trial of the case or before an appeal, a judgment, and if the plaintiff refuses such tender and shall ultimately recover an amount no greater than the tender, then the defendant’s costs shall be taxed against the verdict. Held, that it is necessary that the plaintiff shall have notice of the tender in order to be affected thereby.
    2. Per Mercur, J. — “ We think a correct interpretation of the statute requires the record also to show notice to the plaintiff or his agent of the offer to confess judgment, before the plaintiff can bo affected by it.
    March 11th 1880.
    Before Siiarswood, C. J., Merctjr, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1880, No. 172.
    This was an action by Driesbach & Co. against Morris & Walsh, before an alderman of the city of Wilkesbarre. On the 1st of February, 1876, judgment was entered against defendants for $89.25. On the 12th of February 1876, the justice made the following entry on his docket: “ Defendants tender a judgment of $80.00.” On the 14th of February 1876, defendants appealed. The case was tried before a jury, and verdict rendered for plaintiffs for $81.12. After verdict, counsel for defendants obtained a rule to show' cause w'hy defendants’ bill of costs shall not be set off against plaintiffs’ verdict, under the Act of April 9th 1833, Pamph. L. 480, which provides as follows :
    “ The costs on appeals hereafter entered from the judgments of the justices of the peace and aldermen shall abide the event of the suit, and be paid by the unsuccessful party, as in other cases: Provided, that if the plaintiff be the appellant, he shall pay all costs which may accrue on the appeal, if, in the event of the suit, he shall not recover a greater sum or a more .favorable judgment than was rendered by the justice: And provided also, that if the defendant, either on the trial of the cause before the justice or the referee, or before an appeal is taken, shall offer to give the plaintiff a judgment for the amount which the defendant shall admit to be due (which offer it shall be the duty of the justice and of the referee to enter on the record), and if the said plaintiff, or his agent, shall not accept such offer, then and in that case, if the defendant shall appeal, the plaintiff shall pay all the costs which shall accrue on the appeal, if he shall not, in the event of the suit, recover a greater amount than that for which the defendant offered to give a judgment; and in both cases the defendant’s bill shall be taxed and paid by the plaintiff, in the same manner as if a judgment had been rendered in court for the defendant.”
    Depositions wmre taken under this rule. Driesbaeh testified that no tender had been made to either him or his partner, and he had no knowledge that the tender had been made before the alderman. The latter testified that there was. no one present but Morris and himself when Morris stated he wanted to make a tender and to have the alderman enter it on the docket; that he had never notified defendants that a tender had been made.
    Morris testified that he had tendered judgment of $80 and costs, and had the alderman so record it on the docket; that on the same day he had ridden with Driesbaeh in a street-car, and had told him that the alderman had given judgment for the amount of his claim, and that he had tendered judgment and costs for $80, and was ready to pay that amount to him, and would pay no more, and that Driesbaeh had said he would not take it.
    The court made the rule absolute, when the defendants took this writ.

      E. S. Osborne, for plaintiffs in error.
    The judgment must be tendered to plaintiff or his agent, and he must have an opportunity to accept. Here neither of these provisions of the law had been complied' with. The defendants never know until at the trial that , the tender had been made.
    May 3d 1880.

      D. S. Bennet and E. P. & J. V. Darling, for defendants in error.
    The act is silent as to notice. It is sufficient if the party actually had it: Magill v. Tomer, 6 Watts 494.
    But even if the court did not err in allowing testimony as to the record, yet, having gone behind the judgment and examined into the question whether or not the plaintiffs had proper notice of the tender, its decision was one of fact, and will not be reviewed here: Barnet v. Ihrie, 1 Rawle 44.
   Mr. Justice Mercur

delivered the opinion of the court

This contention is whether the plaintiffs are entitled to full costs. It arises under the Act of 9th April 1833. So much of the second proviso as is applicable to this case declares if the defendant either on the trial of the cause before the justice or before an appeal is taken, shall offer to give the plaintiff a judgment for the amount which the defendant shall admit to be due, which offer it shall be the duty of the justice to enter on the record, and if the plaintiff or his agent shall not accept such offer, then and in that case if the defendant shall appeal, the plaintiff shall pay all the costs which shall accrue on the appeal, if he shall not, in the event of the suit, recover a greater amount than that for which the defendant offered to give a judgment; and in both cases the defendant’s bill shall be taxed and paid by the plaintiff, in the same manner as if a judgment had been rendered, in court for the defendant.

The offer to confess judgment must be shown by the record. It is the only evidence of the offer: McDowell v. Glass, 4 Watts 389; Seibert v. Eline, 1 Barr 38; Gardner v. Davis, 3 Harris 41.

In the present case, the record shows the judgment-was recovered before the justice on the first day of February 1876, the offer to confess judgment was made on the 12th, and on the 14th the defendants appealed. The record fails to show that the plaintiffs had any notice of this offer. The act does not declare by whom the notice shall be given, whether by the defendant or by the justice; but it clearly requires- that the plaintiff shall be notified in order to affect him by the offer. He must necessarily be notified before he can be prejudiced by not accepting. The record does not show the plaintiffs to have been present when the offer was made on the 12th. The justice swears he was .not. That evidence is uncontradicted. The defendant swears he made the offer on the day the judgment was rendered, and afterwards on the same day notified the plaintiffs. ' This the plaintiffs denied under oath. As the record shows, the offer of judgment was not made until the 12th, ahy notice given on the first could have no effect. The record cannot be impeached except for fraud, and that is neither shown nor alleged.

We think a correct interpretation of the statute requires the record also to show notice to the plaintiff or his agent of the offer to confess judgment before the plaintiff can be affected by it. This is the only rule which will give a proper effect to the whole record and harmonize with public policy. If no response be made within a reasonable time after notice, it may well be construed as not accepting. There should be no enlargement of the rule to supply by uncertain parol evidence what the record should show: Foss v. Bogan, 11 Norris 296. The learned judge therefore erred in making absolute the rule to show cause why the defendant’s bill of costs, since' the appeal should not be set off against the plaintiffs’ verdict. The plaintiffs are entitled to full costs.

Judgment reversed and rule discharged.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Wright versus Funck.
    1. Where a chattel has been sold by a firm the surviving partner, when released from all liability on his implied warrantee of title by the vendee, is a competent witness for said vendee.
    2. It is not irrelevant to show the intimate relations of parties to show the motive for reposing confidence.
    3. In an action of replevin it is proper for the jury to find for the plaintiff some of the goods, and as to the rest for the defendant, and judgment may be entered on such a verdict.
    March 15th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, of Schuylkill county: Of January Term 1879, No. 40.
    Replevin by Josiah Eunck against Jonathan Wright to recover law books and a book case alleged to have been taken and unjustly detained by defendant. The latter pleaded non cepit and property, and specially that he did not take the books as alleged. At the trial it appeared that the Bibighaus library, consisting of 198 law books and the book case, were purchased by Jacob Light and Martin Wengert, trading as Light & Wengert, from George F. Meily, who gave them a bill of sale therefor, dated April 22d 1854. Wright had been engaged in the grain business and failed in 1853, his property having been bought in by Wengert, who was his .principal creditor. After his failure he induced Wengert to allow him to act as his agent in carrying on the business at the same place. The books in controversy Light & Wengert alleged were bought at the instance of Wright, who persuaded them to purchase them and loan them to him, representing that if he had the use of them he could study law, and out of the proceeds of his practice be enabled to discharge his indebtedness to them. The books were bought by Wright while acting as the agent of Light & Wengert, and without their consent were removed by him from Jonestown to Pottsville. Wright had involved Light & Wengert in further losses, and being unable to get anything out of him, they sold the library to the plaintiff, giving to him a bill of sale, dated January 7th 1860. The defendant, upon the presentation of this order, refused to deliver the books. The plaintiff offered evidence that while Wright still lived in Jonestown he frequently asserted that the books belonged to Light & Wengert, and shortly before this replevin was brought declared to the sheriff of Schuylkill county and his deputy, who had levied upon the books and book cage as the property of Wright upon an execution against him, that the books and case belonged to Messrs. Light & Wengert, and that they had bought and paid for them.
    The plaintiff proposed to prove by the witness, Martin Wengert, who has been released from all liability on his implied warranty of title, that the law books and book case replevied in this case were the property of Light & Wengert at the time the same were sold to the plaintiff, and that the defendant had neither title nor right to the possession of them; that the said books and book case were purchased by Light & Wengert, and loaned to the said Wright during their pleasure, with the understanding that if Wright should pay them for the same, and all' his indebtedness to them, they would sell them to him ; and with the further understanding that said Wright would not remove them from the county of Lebanon; that Wright never paid said Light & Wengert for said books and case, and removed them out of Lebanon county without the knowledge or consent of said Light & Wengert.
    The defendant objected to the competency of the witness, upon the ground that Jacob Light, a partner with the witness, under the firm of Light & Wengert, is dead, and that the witness is a surviving partner; that the plaintiff has proved that he claims the said matter in controversy from and under a conveyance from Light & Wengert, made in the lifetime of Light; that there is no evidence of a release of the firm of Light & Wengert by the plaintiff, but if there is such release it would not restore the witness to competency ; that the death of Light closes the mouth of his surviving partner, they being the grantors of the thing in controversy to the plaintiff. Objection overruled.
    The plaintiff then proposed to ask the wetness why he had such confidence in Wright as to give him the money upon his bare representations, without taking any vouchers as testified. This was offered for the purpose of showing that at the time the money in question was given to Wright that he was or represented himself to be a preacher, and that there were religious connections between them.
    Defendant objected that the evidence proposed is irrelevant and incompetent; that they cannot prove such facts by their own witness ; the fact that Mr. Wright was or was not a preacher will raise a new issue in this case, an irrelevant issue with which the jury have nothing to do; and that it is not sufficient to induce confidence nowadays that a man is a preacher ; that it is not evidence in chief, but should be brought out in chief if at all.
    ■ The Court: “ It seems to me he may show an intimate relationship between himself and Mr. Wright, where the evidence is that he placed confidence in Wright.” Evidence admitted.
    The plaintiff submitted, inter alia, the following points, to which are appended the answers of the court, Walker, A. L. J.:—
    2. If the jury believe that Jonathan Wright was the owner of these books, and at his instance title thereto was made to Light & Wengert, that Light k Wengert and Wright represented the books in controversy to be the property of Light k Wengert, and the sole and exclusive purpose of these contrivances was to give a false color of title to the books of Light & Wengert, and cover them up from the grasp of the creditors of Wright; this was a fraud, and Wright is estopped from setting up his title as against the plaintiff in this action, if the jury believe from the evidence that the plaintiff is a bona fide purchaser for value from Light & Wengert without notice.
    Ans. “ The doctrine of estoppel does not apply unless Mr. Eunck in good faith was induced to make the purchase of the books by reason of what Wright said, which was communicated to the plaintiff before he made the purchase. The policy of the law, however, will not permit a party to be benefited by his own fraud against- a bona fide purchaser for value without notice of such fraud.”
    3. If the jury believe that Light & Wengert offered to sell the Meily library to .the plaintiff, and exhibited to him their bill of sale from Meily, and that they also offered to sell to said plaintiff at the same time such other books as Wright had afterwards bought and paid for with their money ; that the plaintiff refused to buy until he had ascertained what books belonging to Light k Wengert, Wright had in his possession; that to ascertain this fact, he issued a testatum fi fa. on the Stroh judgment against Wright, directed to the sheriff of Schuylkill county with directions to make a levy on the books in possession of Wright; that a levy was made up on the books in controversy ; that the defendant declared to the sheriff and W. R. Smith, Esq., the attorney of the plaintiff, that all the goods levied upon a.nd afterwards replevied, belonged to Light k Wengert; that this information was after-wards communicated to the plaintiff, who thereupon relying upon said assertions of Wright, closed the purchase of the books in controversy, and caused the writ of replevin to issue in this case; Wright is estopped and precluded from setting up his title to the property, even if he had any; for by his representation he had misled the plaintiff to his hurt.
    An3. “ If the jury find the facts as stated in this point, then we affirm it; if the plaintiff acted in good faith, and was induced to make the purchase to his injury by representations made by defendant, and if such representations would amount to a fraud.”
    The defendant testified that he had bought the books of Mrs. Bibighaus; that Meily had paid for them with the understanding that Wright should have the books if he paid for them within a certain time; that he had so paid for them and taken possession of them, and that Wengert and he had agreed together that while the books belonged to defendant, he should say that Light & Wengert owned them, for the purpose of evading his creditors. In rebuttal the plaintiff gave in evidence the schedules of Wright, who was adjudged a bankrupt, in which he did not claim the books as part of his assets.
    The verdict was in favor of the defendant for the following books, viz.: 1 vol. Parsons’s Equity Cases, 1 Brightly’s Nisi Prius Reports, 1 Archibald’s Black., 4 vols., 1 Binney, 1 Kent’s Commentaries, 1 Kent’s Commentaries, 4 vols., 1 Penna. Law Journal, 7 vols., 1 Wharton Criminal Law, 3d edition, 1 Kent’s Blaclcstone; vols. 1 to 4 of Watts’s Reports, Am. Law Register from ’54 to ’57, 1 Casey’and 12 Harris Reports, 1 Binney’s Reports, Annual 'Digest, 1 Kinney’s Justice, 2 vols., Beck’s Medical Jurisprudence, and. with five. ($5) dollars damages ; and find in favor of the plaintiff for all the rest of the books in controversy along with book-case.”
    Judgment was entered on this verdict, when defendant took this writ and alleged that the court erred in the admission of the above evidence, and in the answers to the points and the verdict.

      B. W. Gumming and James B,yon, for plaintiff in error,
    Wengert was incompetent to testify: Hanna v. Wray, 27 P. F. Smith 27; Gravit v. Supplee, 2 W. N. C. 561. The issue was solely as to the ownership of the books. In such an issue it was clearly irrelevant to show that Wright was a local preacher, and for that reason had gained the confidence of Light & Wengert. Such evidence was calculated to prejudice and mislead the jury.
    Light & Wengert could not have recovered the library in an action of replevin, as they were in pari delicto with Wright,-and it follows that Funck is in no better position. He purchased with full notice of the pretended sale to Light & Wengert and knew that the library belonged to Wright. If a plaintiff can only recover through a fraudulent contract, the court will not assist him. Funck was not an innocent purchaser and had no right to complain : Dannels v. Fitch, 8 Barr 495. The judgment was erroneous, it should have been de retorno hdbendo: Easton v. Worthington, 5 S. & R. 130.

      Guy E. Earquhar,' for defendant in error.
    Wengert, when released from all liability on his implied warranty of title, was clearly a competent witness: Smith v. Rutherford, 2 S. & R. 360. To the same effect: Railroad and Coal Co. v. Quick, 11 P. F. Smith 328; Rhines v. Baird, 5 Wright 261; Pierce v. Sweet, 9 Casey 151; Strohecker v. Hoffman, 7 Harris 225. The vendor of a chattel in possession at the sale, and bound to the vendor upon the implied warranty of title, was incompetent as a witness unless released: Kusenberg v. Browne, 6 Wright 173; Cadbury v. Nolen, 5 Barr 320 ; Taylor v. Gitt, 10 Id. 430; Search’s Appeal, 1 Harris 110. When the interest of the witness is collateral his competency may be restored by a release or transfer of it.
    The Act of 1869 was an enabling act; and no one who was competent prior to its passage was rendered incompetent by its provisions : McFerren v. Mont Alto Iron Co., 26 P. F. Smith 180; Scheetz v. Hanbest, 31 Id. 102. It was proper to show the reason why confidence was reposed in Wright: Myre v. Ludwig, 1 Barr 53. The same principle was decided by this court in the cases of Carrol et al. v. Commonwealth, 3 Norris 107; Carroll v. Commonwealth, Id. 187; Hester v. Commonwealth, 4 Id. 139.
    In all of the last-mentioned cases it was held competent for the Commonwealth, on the trial of the defendants for the crime of murder, to show the existence, character and practices of the Mollie Maguire organization, of which the defendants were members, for the purpose of showing the motive for the crime and informing the jury of all the circumstances that would tend to explain the defendants’ connection with the transaction.
    The plaintiff below having shown a perfect legal title and right of possession to thé books in controversy, it was incompetent for Wright to have set up a fraud to which he was a party to defeat such title, even if Light & Wengert and Funck had all been parties to the fraud: Blystone v. Rlystone, 1 P. F. Smith 373. The order to Wright to deliver the books was made the day after Wright’s declarations that the books belonged to Light & Wengert, and as they were made in the course of a legal proceeding he is estopped from denying the plaintiffs’ title: Kelly v. Eichman, 3 Whart. 419. Judgment may be entered upon a verdict partly in favor of each party, and such judgment will sustain an action on the replevin bond: Johnson v. Gray, 19 Pitts. Law Jour. 123; 2 Bright. Dig. 2136, pl. 98.

      March 29th 1880,
   The judgment of the Supreme court was entered,

Per Curiam.

Wengert was without doubt a competent witness. He was no party to the suit, and had been released from all liability on his implied warranty of title. He would have been a good witness before tne Act of 1869, which made no one incompetent who was competent before. It was not irrelevant to show the intimate relation between Wright and Wengert. The answers of the learned court to the plaintiffs’ second and third points put the case to the jury upon the true question. It is certainly proper for the jury in an action of replevin to find for the plaintiff’ some of the goods, and as to the rest, for the defendant, and judgment may be entered on such a verdict.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Hartley versus White.
    1. Where a partner, for the purpose of paying his individual debts, sells firm property without the knowledge of his co-partners and with the intent to defraud firm creditors, the purchaser acquires no title as against said creditors.
    2. A judgment was entered in such a form as to contain a reference to an Act of Assembly and to a case in the Law Reports. Held, that such an error -was not fatal, and that it could be amended by striking out the references. ' .
    March 15th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Susquehanna county: Of July Term 1878, No. 43.
    Attachment-execution by Norman White and D. K. Morss, assignee of said Norman White, against M. J. Decker and Andrew Halstead, defendants, and Silas Hartley, garnishee. Service was had on Halstead, one of defendants, and Hartley. A rule was taken on the garnishee to take interrogatories, who filed answers and the same day pleaded “ nulla bona.”

    At the trial, it appeared that in 1870 Decker & Halstead were in partnership in the mill and lumbering business, and about that time borrowed $2000 from White for the use of the partnership. On July 27th 1872, White entered judgment on the note given for this loan. After their property had been sold by the sheriff, White assigned to Morss one-half of the judgment entered, under a stipulation that White’s part of the judgment was to be paid out of the proceeds of the sheriff’s sale, and if anything remained it was to apply on that part of the judgment assigned to Morss. Under the auditor’s report, Morss received $105.57, and at another time about $101. The rest of the judgment, $1250.20, remained 'unpaid. And for this, on June 24th 1875, Morss issued this attachment-execution against Hartley as garnishee, on the ground that he had in his possession property which belonged to the firm of Decker & Halstead.
    It appeared, that on December 2d 1872, Hartley bought from Halstead certain notes and judgments, taken by Decker & Hal-stead in their firm business, amounting in the aggregate to $2050, for which he paid him $753, of which sum, $35.21 was a debt due by the firm to him, and the rest in notes which he held of Halstead individually, except $225, which he paid on a note of Halstead’s, held by one Stewart. When these notes were bought the firm was greatly involved, and they were sold without the knowledge of Decker, who had purchased Halstead’s interest in the firm. Some time after the notes were sold tho firm became insolvent. Hartley, as he alleged, collected about $700 of the notes.
    In.the general charge, the court, Morrow, P. J., inter alia, said: “ Hartley claims he purchased of Halstead, about December 2d 1872, notes and judgments owned by Decker & Halstead, amounting to $2050, and paid him therefor $753, of which $35.21 was a debt held against them, and the rest was in notes he held against Halstead alone, except $225, which he .paid on a note one Stewart had against Halstead. He swears that he considered many of these notes almost or entirely worthless, but that the purchase was made with the knowledge and express consent of Decker. This Decker denies in toto, except as to the Gifford note, as you-will recollect his evidence in regard to that in connection with Mrs. Gifford’s evidence. The plaintiff claims to recover the amount yet unpaid on his judgment against Decker & Hal-stead, $1250.20,. if the jury find the notes in the possession of Hartley are of that value. If not of so great value, then to recover an amount equal to their value. He bases his right to recover on the ground that the transfer of the notes assigned to Hartley was fraudulently made, the fraudulent purpose being to pay the individual debts held against Halstead out of the firm property, and to prevent the same from being applied to firm debts. If the jury find the transfer was fraudulent, and was made for the purpose stated, and Hartley, colluding with Halstead, or with Decker & Halstead, obtained the notes, &c., knowing they were the property of the firm, it was void, and the plaintiff may recover whatever they were worth. This for the reason Hartley acquired no title as against the creditors of Decker & Halstead. 'They may follow and seize them in' his hands as firm property. Or, if the jury find that Hartley obtained the notes and judgments from Halstead in payment of the debts against Halstead, without the knowledge or consent of Decker, knowing -them to be firm property, the plaintiff may recover their value. This for the reason that by the action of Halstead the firm were not deprived of their title to this property, and could maintain suit therefor; this being the fact, the creditors of Decker Halstead could reach and hold them upon attachment-execution.
    “ One partner cannot use the property of the firm to pay indi-, vidual debts, even if the act is honest and in good faith if his copartners had no knowledge of the transaction, if such transfer prevents the creditors of the firm from collecting their debts. A different rule prevails if both parties consent bona fide to the transfer. You will recollect that Hartley swears Decker did consent to it.
    “ Fraud is not presumed; the burden is on the party alleging fraud to establish it by satisfactory evidence.”
    The court directed the jury to find a special verdict, and stated to them all the facts their finding should cover, calling their attention to evidence bearing upon each proposition they were to determine and find in their verdict.
    The jury found the following special verdict: “ We find that the money for which the note was entered in No. 715, August T. 1872, was borrowed by Decker & Halstead, copartners, and used in their partnership business, of which $1250.20 remain unpaid. Attachment execution served July 24th 1875. That Silas Hartley, garnishee, obtained from Andrew Halstead about the 2d of December 1872, notes and judgments amounting to about $2000, face value; that the notes and judgments belonged to and were the property of Decker & Halstead when so assigned and transferred. That he has collected on these notes $700, and has given up other notes to the makers and included in notes taken in his own name to the amount of $723. That the interest on $700 is $210,'and on the $723 is $216.90, computed by us for five years. We find that the notes and judgments not collected, surrendered, were of the value of $125 when they were transferred to Hartley, interest on same for five years, being $37.50. We further find that the value of the notes surrendered by Hartley to the makers and new notes taken by him, and now uncollected,, were of the value of $578.40, interest thereon for five years, $173.50. For all the notes and judgments which Hartley received from Halstead he paid Halstead $493.53 by delivering to him his notes and accounts he held against Halstead individually, and also paid a note of about $225, which one Stewart held against Halstead. He also applied payment of a debt he had against Decker & Halstead of $35.21, making a total of $753.74. We further find that the transfer of these notes adjudged was fraudulent and intended by Halstead'and. Hartley to be in payment of Halstead’s private debts, and to prevent the same from being used and applied in the payment of the firm debts of Decker & Halstead, and the transfer was in the absence and without the knowledge or consent of M. J. Decker, except as to the Gifford note, and that at this time Decker & Hal-stead were largely in debt, and soon after became insolvent and unable to pay their debts, the debt of the plaintiff being one.
    “ We find also that about five years ago Hartley borrowed a pair •of platform scales, property of Decker & Halstead. At the time he borrowed them they were of the value of $65; that on being required to return them he refused unless Decker & Halstead paid an individual debt he owed him, said Hartley, and he still has them in his possession.
    “ We find for the plaintiff such sum as the court may be of opinion he has a right to recover under these facts, verdict to be moulded by the court, and judgment entered thereon in such manner and amount as the court may deem legal and proper. If the court be of opinion he cannot recover under the facts found by us then our verdict is for the defendant.”
    Subsequently a rule was granted to show cause why judgment for $1250.20 should not be entered, which the court made, absolute by the following entry of record:
    “April 27 th, rule absolute, judgment in favor of plaintiff and against the- said garnishee for $1250.20 and costs. Under the Act of Assembly and the eases {vide Bonaffon v. Thompson, 2 Norris 460), execution is restricted first, as to the goods and effects in the garnishee’s hands, or so much thereof as may satisfy the plaintiff’s demands, and secondly, against him as of his proper debt if he refuses to produce such goods and effects. By the court.”
    The garnishee took this writ, and alleged that the court erred in the above portions of the charge; in the form of the special verdict, and in the entry of judgment thereon.

      Littles and Blakeslee, for plaintiff in error.
    We admit the priority of firm over individual creditors, where both have acquired liens on the partnership assets before a sale. It is the specific lien before a sale that enables the firm creditor through the equity of the other partner to enforce his priority. A general creditor of the firm has no such lien, and could not restrain an individual partner from selling his interest: Young v. Frier, 1 Stockt. 468; Mittnight v. Smith, 2 C. E. Green 268.
    The right of a firm creditor is subordinate to the power of a partner to make a bona fide disposition of his interest before the creditor has acquired a lien : Field v. Hunt, 24 How. Pr. 463. The lien of the partnership creditors is in time if acquired before the sale: Coover’s Appeal, 5 Casey 9. After a sale and delivery to a third party a firm creditor cannot follow : Deal v. Bogue, 8 Harris 234. It must appear that Decker had an equity existing in him, else Morss, the firm creditor, is remediless: Collgrove v. Tallman, 67 N. Y. 95. The reverse appears. By the contract, Decker was to pay the firm debts — unless, indeed, the purchase-money going to Halstead was insufficient to pay his half. This made Decker the principal and Halstead a surety — at least until Decker had shown he had so applied the purchase-money, and it was not sufficient. This he did not show.
    This equity belongs to the partners and not to the creditors. If the partners waive or extinguish it, it cannot be set up by firm creditors: Taggert v. Keys, 3 Phila. R. 97. The firm title to these notes passed to Hartley. This, because of the power of one partner to sell a chose in action. 2d. Because of his right, without consent of the other partner, to pay a firm debt. The mere preference of individual debts over partnership debts is not such a fraud upon partnership creditors, that after it has been done it will be set aside by a court of equity: National Bank v. Sprague, 5 C. E. Green 30.
    It is essential to a special verdict that it contain all the facts upon w'hich the judgment of the court is to rest. Nothing is to be taken in by implication or intendment; whatever is not found in it is supposed not to exist: Pitts., F. W. & Chicago Railroad Co. v. Evans, 3 P. F. Smith 250; Berks Co. v. Pile, 6 Harris 493; Thayer v. Society of United Brethren, 8 Id. 62. Nothing can be supplied by the charge: Craven v. Gearhart, 1 W. N. C. 257. Nor from the evidence: Commonwealth v. McDowell, 6 W. N. C. 74.
    This special verdict was fatally defective, inasmuch as'it did not state the amount of the Gifford note, nor find the dissolution of the firm.

      R. Robinson, for defendant m error.
    A partner cannot make a valid transfer of firm property, in payment of his individual debt, without the consent of his copartner: Todd v. Lorah, 25 P. F. Smith 155. One partner cannot appropriate the funds, or securities or effects of the partnership, in discharge or payment of his own private debts, claims or contracts ; and a transaction of this kind with a partner, with a knowledge of the circumstances, will be deemed mala fide, and be treated as a nullity: Leonard’s Ex’rs v. Winslow et al., 2 Grant 139. A partner capnot divest the title of the firm to partnership property by a fraudulent delivery to a third person as security for his separate debt, nor for his own benefit in any way : Porter v. Miller, 1 W. N. C. 240.
    An attaching creditor takes the property in the hands of the _garnish.ee with all its legal incidents, and is entitled to the fund produced by such property: Fessler v. Ellis, 2 Grant 472; Fitzsimmons’s Appeal, 4 Barr 248; Fox v. Foster, Id. 119. The argument of plaintiff’s counsel, and authorities cited by them, showing the right of a partner to sell bona fide his interest in the firm property before a lien has attached, evidently have no application to the circumstances of this case. The argument of plaintiff in error as to what a special verdict should contain is admitted. But it is evident this one does contain all the facts upon which the judgment of the court is to rest. There was no more reason why the Gifford note should be mentioned than any other note.
    May 3d 1880.
   Mr. Justice Mercur

delivered the opinion of the court,

This judgment was entered on a special. verdict. It does not present the facts in a clear and methodical manner. It is not a model to be followed. It may, however, be sufficient to sustain a judgment. The plaintiff in error was served as garnishee of Decker & Halstead, copartners. The jury found that, in fraud of the creditors of the firm, and without the knowledge or consent of Decker, except as to one note (shown by the evidence to be about $40), Halstead assigned and transferred judgments and notes, the property of the firm, amounting to about $2000, to the garnishee; that the transfer of this property was fraudulent, and intended by Halstead and the garnishee to be in payment of Hal-stead’s private debts, and to prevent the same from being used and applied in the paymentof the firm-debts of Decker & Halstead; that the firm was at the time largely in debt, and soon after became insolvent. They further found that, out of the claims thus assigned to the garnishee, he had collected a specific sum in cash, and that he had surrendered to the makers notes, and taken new ones therefor, for a sum certain and of sufficient value, added to the cash received, to exceed by several hundred dollars the sum due to the attaching-creditor, or for which judgment was entered against the garnishee.

It is well settled that one partner cannot make a valid' transfer of firm property, in payment of his individual debt, without the consent of his copartners: Todd v. Lorah, 25 P. F. Smith 155. Such act is a fraud on his copartner, and the right of property in the firm does not pass to the individual creditor. The present case goes still further. Not only was the attempted sale a fraud on the copartner, but it was intended and operated as a fraud on the creditors of the firm. It is, then, clear, under these facts, the purchaser cannot hold the property against the creditors intended to be defrauded. He has no reason to complain of the' amount for which judgment was entered against him. It is for a sum less than he has realized out of the property.

It is further objected that the form of the judgment is wrong. It must be conceded that the reference to the Act of Assembly, and to the case of Bonnaffon v. Thompson, might more appropriately have been made in an opinion of the court than to be interwoven in the judgment.. This, however, is not a fatal error. The form of the judgment can be amended. It is now done by striking out those references so that it shall stand judgment in favor of plaintiff below and against said garnishee for $1250.20 and costs, to be levied of the goods and effects of Decker & Halstead in his hands; or, in case he fails or refuses to produce such goods and effects sufficient to satisfy the execution, then to be levied against him as his own proper debt. Thus amended, the

Judgment is affirmed.


author: Mr. Justice Gordon

text:
    Schenck’s Appeal. Miller versus Schenck.
    A judgment was entered upon a wan-ant of attorney in a judgment-note. In order to stay execution upon the judgment, the defendant gave plaintiff new judgment notes for the original debt, and upon these notes judgments were entered. Upon a rule to open these judgments, the court decided against the defendaht upon the merits. Afterwards defendant applied for a rule to open the original judgment; Held, that the effect of the above decision of the court was the same as though a rule to open the first judgment had been taken and discharged. Held, further, that any defence to the first judgment, on the ground of fraud, could not be taken advantage of by defendant, as he was estopped from setting up such fraud by the subsequent delivery of othe.r notes.
    March 16th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Appeal from the Court of Common Pleas of Wyoming county: Of January Term 1880. No. 294.
    Appeal of John C. Schenck, under the Act of April 4th 1877, Pamph. L. 53, from the decision of the court refusing to open a judgment entered on a warrant of attorney and let the defendant into a defence.
    The application was based on a petition of Schenck, filed January 12th 1880, and affidavits which set forth that the original judgment was entered on November 24th 1876, upon a note which contained a confession of judgment for $1000, made by Thomas May, and by appellant as his surety, in payment of certain articles which May bought from Miller, under the following circumstances : Miller was the receiver in an equity proceeding between one Hathaway and May, in which the former was plaintiff and the latter defendant. Miller appointed one Martin to sell a stock of goods to May. Martin proposed to May to let him have the goods for $1000, but would not take May’s note for the amount unless secured. May then made the note in controversy, and persuaded Schenck to sign it as surety. Schenck refused unless he could be secured, and May proposed to secure Schenck as follows: 1. He agreed to give him $50. 2. He assigned him a claim between Hathaway & May of $744, and represented it to be a judgment. 3. He assigned him a receipt of $1450 to apply on a judgment, C. Detrick v. Thomas May. The $50 was never paid. There was no such judgment as that assigned. May had obtained an award against Hathaway & May for $744, but the defendants had appealed, and there was nothing there but a lawsuit, and May and Martin both knew it. The defendant therefore asked that the judgment should be opened on the ground, that being an ignorant Dutchman, a gross fraud had been practiced upon him by Miller, the plaintiff, through his agent Martin, in obtaining the judgment.
    Miller filed a plea which set forth substantially that execution had issued on said judgment in November 1877, and again in April 1878; that in order to extend the time of payment and to settle disputes arising from the attempt to open the judgment, Schenck had given new judgment notes, with other security, for the same debt represented by the original judgment; that judgment had been entered on these notes; that defendant had obtained a rule to open one of these judgments; that all the questions and matters upon which the present proceeding is based were then considered, and the rule was dismissed and no appeal was taken therefrom, and that by reason of the premises, the court refused to grant to the appellant the opportunity of again interposing the saíne defence as against the same debt.
    The court below refused to open the judgment, when the defendant took this writ and assigned this action for error.

      Piatt Sons and Sittser Harding, for appellant.
    The fraud of Martin, the agent of Miller, affects the judgment the same as iff Miller had participated personally in the fraud: Mundorff v. Wickersham, 13 P. F. Smith 87; Hunt v. Moore, 2 Barr 105-7; 2 W. & S. 314-6; Musser v. Hyde, Paley on Agency 258.
    The only reason given by the court in refusing to grant a rule, was that a similar application had already been disposed of by the court. It nowhere appears upon the record that Schenck had before made an application to open this judgment. The affidavits set forth a clear and gross fraud, and he had a right to a hearing on the facts therein set forth.

      W. H. O. A. Little, for appellee.
    Martin was Miller’s agent for the purpose of selling certain goods, and not for the purpose of securing May’s security. Martin was a special agent: Story’s Agency, sects. 17, 21. A false affirmation of a matter resting in opinion, or of a fact equally open to the knowledge or inquiry of both parties, is not available to avoid the judgment. Here the parties dealt on equal terms. There was no relation of confidence between them: Fulton v. Hood et al., 10 Casey 365-67. The Act of 1877 does not apply to the refusal of the court to open a judgment afterwards revived by agreement of the parties: Lamb’s Appeal, 8 Norris 407.

      May 3d 1880.
   Mr. Justice Gordon

delivered the opinion of the court,

This was a petition by John C. Schenk, the appellant, to open a judgment entered on a warrant of attorney which he had executed as surety for Thomas May. The court below refused this application on the ground that a like petition had been previously heard and disposed of. If this were correct, if the appellant had had, in this particular, his day in court, and had neglected or refused to appeal from its decree, that certainly ought to end the controversy. He ought not to be permitted to renew his application whenever an attempt was made to collect the judgment by execution. It is, indeed, not strictly correct to say, that disposition was made of an application to open the very judgment in hand, for the rule was to open one of two judgments, subsequently given by the appellant and his son in settlement of the one now in controversy. Nevertheless the effect is the same; for though the appellant might have been induced by the representations of Martin, Miller’s agent, to sign the one thousand dollar note, yet if, after he had full time to inform himself of the character of those representations, he, in consideration of an extension of the time of payment, settled with, and executed new notes to Miller, he .would, thereby, most certainly be concluded and estopped from setting up the fraud of the agent in the original transaction

The complaint is, that through Martin’s representations, the appellant was induced to believe that the assignment of a certain receipt, given by one Detrick to Charles May, on a judgment against Thomas May, would answer to secure him as surety of Thomas May. It was supposed that this receipt would have the effect of an assignment, or would have the effect of subrogating Charles May to the right of Detrick in the judgment. Now, in the first place, whether this representation, if made, was false or not, we have no means of judging, for neither the paper itself nor proof of its contents is before us.

Then again, we have further, the testimony of.Schenck himself that, however much he might • have been deceived as to the value of the receipt, Martin had no part in the work of deception. He says, at the time he signed the. note in controversy, May was to make him a present of $50, assign to him a claim he had against Hathaway and May, which he valued at $740, and the Detrick receipt. He further says he asked Martin if those papers were good for what he signed, and that he answered that they were good for what they called for. He also testifies that neither Miller nor Martin held out guy inducements in order to obtain his signature to either of the three notes. Finally: the judgment in controversy was dated November 23d 1876, payable at one year; on the first of April 1878, some three months after the judgment became due, the parties came together, and in consideration of an extension of one and two years, two new judgment notes were executed by the appellant and his son in settlement of the original judgment. Now, it' may be that Schenck was a very ignorant man, and did not know that a receipt would amount to nothing as collateral security; yet this plea of ignorance is, in itself, hardly sufficient to account for a delay of three years in time; to remove the effect of his own testimony, and set aside his deliberate ratification of the original contract, fifteen months after he had entered into it.

The decree or order of the court below is affirmed.


author: Mr. Justice Sterrett

text:
    Pennsylvania and New York Canal and Railroad Company versus Billings.
    1. The right of the state to take and appropriate lands required in the construction and operation of public improvements, such as canals, is unquestioned, but there is a recognised distinction between that - which is required for permanent use and occupation and that needed for temporary purposes only.
    2. A deed contained a recital that “the above piece of land is covered by the North Branch Canal basin and embankmentHeld, that while this was some evidence that the land belonged'to the state it .was not conclusive, and that the parties thereto were not thereby estopped from showing that the' land embraced in the deed, although covered by the overflow of the canal, was, in fact, never appropriated for permanent use as a part thereof.
    3. Whether said land was appropriated for permanent or temporary use was a question of fact exclusively for.the jury.
    March 16th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Wyoming county ; Of January Term 1880, No. 20|-.
    Ejectment by the Pennsylvania and New York Canal and Railroad Company against Draper Billings for a piece of land in the borough of Tunkhannock.
    Plaintiffs are the owners of the North Branch of. the Pennsylvania Canal, which was constructed by the state of Pennsylvania in 1851. The canal with its embankment covered the land in dispute until the year 187 2, when, by the Act of Assembly of April 2d of that year, the plaintiffs were released from all obligation to keep the canal in repair. At the time the canal was built, the land in controversy was owned by P. M. Osterhout and Willard Jackson, under whom the defendant claimed title.
    The plaintiffs offered in evidence the Act of Assembly authorizing the construction of the canal; the Act of April 21st 1858, providing for a sale of the canal to the Sunbury and Erie Railroad Company, and'the proclamation, by the governor of said sale in pursuance of said.act; the Act of 1859, providing for the assessment and recovery of damages on the North Branch Canal, and the record entries of a suit for damages by Peter M. Osterhout and Willard Jackson against said North Branch Canal Company ; a judgment therein for plaintiffs, marked satisfied, plaintiffs receipting therefor in full; also Act of 1865, authorizing the North Branch Canal Company to change its name to the name of the plaintiffs.
    The defendant then offered in evidence various deeds tracing the title of Osterhout and Jackson back to 1807, when title was obtained from the Commonwealth; deed dated October 29th 1863, from Osterhout and wife, and John Jackson, executor of Willard Jaqkson, deceased, to M. C. Mercur, and deed from the latter, dated July 1874, to Billings the defendant.
    This deed was objected to for the reason that the previous mentioned deed purporting to give title to M. C. Mercur, reciting that the land is covered by the North Branch Canal under the public law of the state, shows that it conveyed no title to M. C. Mercur, and that other title must be shown in M. C. Mercur to enable this deed to Draper Billings to be given in evidence. Objection overruled.
    Defendant then offered to prove by the testimony of Osterhout that the canal, as originally staked out and surveyed, was to cut the northern portion of the land in dispute, but that .the owners, asked the engineers to- make a basin for their benefit, and to run a bank near the northern ling of the lot, and that it was the understanding that the basin as constructed was on the property of these said owners. , Objected to because the fact should be shown by written authority from the ofiicers of the Canal Navigation Company. Objection overruled.
    Also, to show by the same witness that there was a dispute between him and Mr. Mercur as to just what the company should pay for eanal damages, so that the parties finally agreed that Messrs. Osterhout and Jackson should give Mr, Mercur a deed for the whole of this land; that there was no consideration between Mr. Osterhout and Mr. Mercur for the damages ; that Mr. Osterhout sold to Mr. Mercnr the whole of this land, and that the receipt was placed upon the records after the deed was given, as the inducement held out to Messrs. Osterhout and Jackson for the purpose of getting them to sign this receipt and execute this deed; also, that the time for adjusting had expired. Objected to as being entirely irrelevant. Objection overruled.
    The following points were submitted by plaintiff, to which are appended the answers of the court, Ingham, P. J.:—
    1. Under the evidence in the case, if you are satisfied that the state of Pennsylvania constructed a portion of the north branch of the Pennsylvania Canal its canal basin or embankment on the land in controversy in this case, your verdict must be for the plaintiff for all the land in dispute that was so taken by the state.

      Ans. “ We affirm this point, adding the words ‘ for permanent use and operated as a canal,’ so that it will read, ‘ its canal basin or embankment for permanent use and operated as a canal on the land in controversy in this case, &c.’ ”
    2. If the laud described in the deed offered in evidence in this case by defendant from P. M. Osterhout and wife, and John Jackson, executor of Willard Jackson, deceased, to Mablon O. Mercur, dated October 29th 1863, was for a part of the North Branch Canal, it conveyed no title to him.
    Ans. “ This we affirm as being the law."
    ' 3. P. M. Osterhout and Willard Jackson having filed their claim against the North Branch Canal Company for damages for land, including this in controversy in this case, under the Act of 12th April, A. d. 1859, providing for the assessment and recovery of damages upon the North Branch Canal, and obtained judgment thereon, and that judgment was paid, they and all claiming under them are estopped from claiming title for this land against the North Branch Canal Company, and those claiming under them, unless they claim under a different title from that held by P. M. Osterhout and Willard Jackson at the time they filed said claim.
    Ans. “The object for which the claim of P. M.,Osterhout and Willard Jackson was filed we regard as a matter of evidence, and we will submit the question to the jury under the evidence, there being no record in the present suit of the nature of the claim changing the point to this form : ‘ If P. M. Osterhout and Willard Jackson have filed their claim against the North Branch Canal Company for damages for land, including this in controversy in this case,’ the only evidence of ivliat that claim contained is parol evidence, and is properly within the province of the jury to determine.”
    The court also charged: “ If you believe that the canal basin was constructed at the instance of Osterhout and Jackson for their benefit, and was not taken for permanent use for canal purposes by the state, then the Commonwealth could not take an estate in perpetuity.by the overflow of water on the land of Osterhout and Jackson described in the writ.”
    The verdict was for defendant; and, after judgment thereon, plaintiff took this writ, and alleged that the court erred in admitting the above evidence ; in the answers to the first and third points of plaintiff, and the portion of the charge above noted.

      Felix Ansart, for plaintiff in error.
    There can be no doubt of the right of the Commonwealth, under the Acts of 25th of February 1826, Pamph. L. 55, and 9th of April 1827, Pamph. L. 192, to take the land for the purpose of constructing the basin, nor of the owner’s right to have the damages which he sustained by reason thereof assessed under the provisions of the latter act. But the right of the Commonwealth to the land so taken was an absolute estate in perpetuity: Robinson v. West Penn. Railroad Co., 22 P. F. Smith 820; Craig v. Mayor of Allegheny, 3 Id. 477; Haldeman v. Railroad Co., 14 Wright 425. Where the canal is completed through a piece of land,.the precise quantity which shall be wanted in perpetuity for the canal will be most distinctly and permanently marked out by the banks of the canal itself; Commonwealth v. McCallister, 2 Watts 199.
    The basin could not have been constructed for Osterhout’s use without written permission from the directors, managers or commissioners. See Act 10th of April 1826, sect. 9, Pamph. L. 301.
    The plaintiff’s first point was a correct statement of the law: Commonwealth v. McAllister, 2 Watts 190; Haldeman v. Penna. Railroad Co., 14 Wright 425; Craig v. Mayor, &c., of Allegheny, 3 P. F. Smith 477; Robinson v. West Penna. Railroad Co., 22 Id. 316; McKeen v. Delaware Division Canal Co., 13 Wright 424; Wyoming Coal & Trans. Co. v. Price, 31 P. F. Smith 156.
    The effect of the charge was to make the determination of the matter in controversy to depend upon one question, viz., Does the jury believe that the part of the North Branch Canal which is on the land in controversy was built at the instance of Osterhout and Jackson for their benefit ?
    It is true the charge left it to the jury to decide whether it was taken by the state for permanent use, but no instruction was given the jury that would have enabled them to decide correctly whether it was taken for permanent use or not.

      P. O. $ R. P. Ross and Wm. P. Piatt Sons, for defendant in error.
    The Act of April 10th 1826, Pamph. L. 301, has no application here. We were not claiming, the company’s land, nor did we claim anything in derogation of the company’s vested rights, but an arrangement made before the company had any rights there whatever, and in fact denying that the company had any or ever had any rights. The mere filing a claim to cover the whole land would not give the company the land unless originally appropriated. It might be some evidence to rebut our theory and for plaintiff to claim that it was all taken by the company, but it was a question of fact for the jury. It was also evidence in connection with the deeds. In construing a deed, the court must look into the circumstances under which it was made, as evidencing the intention of the parties : Cox v. Friedly, 9 Casey 124; Miner’s .Appeal, 11 P. F. Smith 283. Every agreement is to be construed with reference to the circumstances under which the parties contract: Callen v. Hilty, 2 Harris 286; Williamson v. McClure, 1 Wright 402; Bank v. Fordyce, 9 Barr 275; Chalfant v. Williams, 11 Casey 212.
    Mereur got no title to the damages. They were in the nature of a compensation for injury in the nature of a trespass, and could not pass by a conveyance of the land: Schuylkill Nav. Co. v. Decker, 2 Watts 344, and McFadden v. Johnson, 22 P. F. Smith 335.
    May 3d 1880.
   Mr. Justice Sterrett

delivered the opinion of the court,

The vital question in this case was, whether the Commonwealth, in the construction of the North Branch Canal, appropriated the land in controversy for permanent use and occupation as a part of that improvement. Under the testimony this was a question of fact for the jury. If they had found, that the land was so appropriated, the verdict should have been in favor of the plaintiff company, which succeeded to the title of the Commonwealth in the canal. There never was any question as to the right' of the state to take and appropriate lands required in the construction and operation of such public improvements, but there is a recognised distinction between that which was required for permanent use and occupation and that needed for temporary purposes only. As to the latter, the title of the owner was not divested, and his enjoyment was only temporarily interrupted; but as to the former, it has been settled by a current of decisions that the title acquired by the Commonwealth to lands so taken and appropriated to permanent use and occupation, was an absolute estate in perpetuity: Commonwealth v. McAllister, 2 Watts 190; Halderaan v. Railroad Co., 14 Wright 425; Craig v. Mayor of Allegheny, 3 P. F. Smith 477; Robinson v. The West Pennsylvania Railroad Co., 22 Id. 316, and Wyoming Coal & Transportation Co. v. Price, 31 Id. 156.

The contention on the part of the plaintiff company is, that by virtue of a taking and appropriation of the land for permanent use and occupation as part of the North Branch Canal, the Commonwealth .acquired a title in perpetuity. If such was the case it is conceded that the plaintiff company is now invested with the same title. Hence the vital question on the trial in the court below was as to the taking and dedication to such permanent use and occupation. The burden of proof was o'n the plaintiff, and the question of fact appears to have been fairly submitted to the jury.

It is claimed that the recital in the deed to M. C. Mercur, Esq., referred to in the first assignment of error, was conclusive evidence against the parties thereto and those claiming under them, that the land described therein belonged to the state at the date of the deed, and that the court erred in ruling otherwise. While the recital was no doubt some evidence against the parties it was not conclusive, and did not estop them from showing that the land embraced in the deed, although covered by the overflow of the canal, was in fact never appropriated to permanent use and occupation as a part thereof. The defendant claimed and introduced testimony to show that none of the land in dispute was so approprinted ; that the location of the canal was outside of the southerly line of the lot in controversy, and that the embankment on the northerly line was placed there a.t the request of the then owners' of the lot and for their benefit. Mr. Osterhout, one of the owners at that time, testified that after the lines of the canal were staked he and his co-tenant, Mr. Jackson, requested the, engineers in charge of the work to make a basin for their benefit by running the bank near the northern line of the lot. He further says: “ The bank, of course, along the road was made for a bridge, and in order to get over there would not have to be any additional bank, but the bank along the northern portion of the lot would be a less embankment than across the corner. By our instruction they made that bank pretty near the northern line of the lot. The bank forming the reservoir was made at our request, and it was so understood by me and Mr. Jackson that the basin was our property.” * * * “ The lot was a sort of basin itself. It -was lower down towards the corner, where they went through with the canal than it was at any other place in the lot.” There was other testimony tending to prove substantially the same facts, and that the actual location and appropriation by the stqfe was along the southerly line and outside of the lot now in dispute.

' The testimony of Mr. Osterhout was objected to, and forms the subject of the second assignment; but we think it was competent and relevant to the issue. Nor do we think there was error in admitting the testimony complained of in the third assignment. • The fourth assignment of error is not sustained. The qualification with which the plaintiff’s first point was affirmed, was entirely proper in view of the testimony before the jury. As we have seen the alleged title I in the Commonwealth depended on an actual appropriation for permanent use and occupation as a part of the improvement. If it.was true that the embankment on the northerly line of the lot was placed there instead of on the southerly line (where it is alleged by the defendant that the location was actually made and marked), at the request of the owners, and exclusively for their benefit, and at the same time without any disadvantage to the state, so that the lot would be overflowed and thus form a basin for their sole use, it was clearly not an.appropriation of the lot by the state for permanent use and occupation as part of its canal. Whether it was the. one or the other was the real question in the case, and it was a question of fact exclusively for the jury.

There was no error in that part of the charge to which the fifth assignment relates. If there had been record evidence of the facts alleged in the point to which this assignment refers, it would have been the duty of the court to have instructed them as to its -effect. Inasmuch as the only evidence of what the claim contained was in parol, the plaintiff has no reason to complain of the manner in which it was submitted to the jury

The sixth and seventh assignments relate to portions of the charge in which the court submitted the main question to the jury. The one is practically a repetition of the other, and the real question in the case could not have been more clearly and appropriately submitted to the jury than was done in those portions of the charge complained of in these assignments. The jury was instructed that if they believed the canal basin was constructed at the instance of Osterhout and Jackson for their benefit, and was not taken for permanent use, for canal purposes, by the state, then the Commonwealth could not take an estate in perpetuity by the overflow of water on the land of Osterhout and Jackson, described in the writ. There was testimony which properly carried this question to the jury, and we discover nothing in any of the assignments that calls for a reversal of the judgment.

Judgment affirmed.


text:
    Parks versus Smith.
    1. A. and B., in dissolving pai’tnership, agreed that A. should accept certain lumber piled upon the ground of a third person as his share of the partnership property, for which A. took a bill of sale. The land was subsequently sold by the sheriff, on a judgment against B. and another. A. gave notice at the sale that he owned the property. In trespass by A. against the sheriff and execution creditor, Held, that it was properly- submitted to the jury to determine whether the evidence of assumption of control by plaintiff , was bona fide or merely colorable, and whether it was enough to give notice to the world.
    2. McKibbin v. Martin, 14 P. F. Smith 352, followed.
    March 16th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunicey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Wyoming county: Of January Term 1880, No. 64.
    Trespass de bonis asportatis by Thomas Smith against H. P. Carter, sheriff, and Rueben Parks, an execution creditor of James E. Smith and R. H. Evans for. selling and converting to their use several piles of lumber. The lumber was sold on a judgment against Smith and Evans, and was claimed by Thomas Smith.
    At the trial before Ingham, P. J., it appeared that James E. and Thomas Smith, who were brothers, entered into a partnership on the 2d of January 1876, which partnership was dissolved at the end of one year, when it was agreed that James E. Smith should keep all the property and should pay Thomas $1102, but that on the 27th of April 1877, they made another settlement of their affairs when it was agreed that instead of the $1102 in cash due him, he should take a quantity of lumber which was specified in a bill of sale given in evidence, stating where the lumber was piled. This lumber which was piled in a secluded place on the property of. another was sold by the sheriff to Parks, on the judgment above alluded to. At the sale, Thomas Smith gave notice that* he was the owner of the lumber.
    The defendants contended that the transfer from James Smith to his brother Thomas was fraudulent in fact and law, and that upon the whole evidence there was no such case as would entitle the plaintiff to recover.
    In refusing to sustain this contention, the court relied upon the decision in McKibbin v. Martin, 14 P. F. Smith 352, which the court read at length, and, inter alia, added: “We think there is sufficient in the case to require the consideration of the jury, and that it is not for the court to dispose of the question. It seems to us to be rather a mixed question of law and fact. * * * This case must be considered with a reasonable view of the circumstances which surround it. Where there is no evidence that it was necessary to remove the lumber to a market, and no positive evidence .that it -was a lumber-yard where piled — a jury should take into consideration the evidence that was given upon the subject; that is, 'whether in the natural order of business, considering the place where the lumber was piled, in whose possession or upon whose land it was, whether it was expected to be sold by purchasers coming and buying it there, or whether the natural course of business would be an immediate removal. All these matters are to be taken into consideration by the jury in determining whether the fact of leaving it there at the time was evidence of fraud or otherwise.”
    Verdict for plaintiff, and after judgment thereon, defendant took this writ, and alleged that the court erred in charging as above.

      Sittser cf* Harding, for plaintiff in error.
    The burden is upon the plaintiff to show a delivery, either actual or constructive, such as the law requires to.make a sale valid as against creditors. A mere bill of sale is not sufficient: Haynes v. Hunsicker, 2 Casey 58; Long v. Knapp, 4 P. F. Smith 514. The jury can pass upon a question of actual fraud with but little direction; but to pass on the question of legal fraud they need some instruction from the court. The opinions of the Supreme Court are not intended to instruct juries, but courts and the bar. And we submit that what was read from McKibbin v. Martin, with the accompanying remarks, in view of the facts of this case, was calculated to mislead the jury-

      JB. W. Lewis, IF. Ansart and Wm. Piatt /Sons, for defendant in error.
    If in this case it is the duty of the court to say that the sale of the lumber to Thomas Smith was fraudulent in law and void as to the creditors of James E. Smith, there will be an instance of a legal presumption overturning an honest sale. The evidence clearly shows that there was no -fraud in fact, that the ‘the sale was honest and the dealing fair. The property in question was of a kind not susceptible of manual delivery, “ and the law only requires such a delivery and change of possession as the nature of the property will admit of:” Chase v. Ralston, 6 Casey 539; Long v. Knapp, supra; Dunlap v. Bournonville, 2 Casey 72; McMarlan v. English, 24 P. F. Smith 299; Witzman v. Simpson, 1 W. N. C. 554. Where there is conflicting evidence as to a change of possession of personal property, after a sale of it, it should be referred to the jury: Forsyth v. Matthews, 2 Harris 100.
    March 29th 1880,
   The judgment of the Supreme Court was entered,

Per Curiam.

This case was submitted to the jury by the learned judge in the court below in a full and able charge, upon the principles settled to be applicable upon the question of fraud in law from retention of possession in McKibbin v. Martin, 14 P. F. Smith 352. It would have been manifest error if he had taken the case from the jury, as he was requested to do by the point presented by the defendants.

Judgment affirmed.


author: Mr. Justice Trunkby

text:
    Crawford versus Scovell.
    1. A grantor in a deed may avoid his conveyance by proof that he was non compos mentis at the time of its execution, where there is no evidence of ratification after restoration to reason.
    2. To avoid his deed, it is not necessary that an insane man should put the grantee in statu quo, for one of the obvious grounds on which the deed of an insane man is held voidable is not merely the incapacity to make a valid sale, but the incapacity prudently to manage and dispose of the proceeds, Hence to avoid his conveyance no previous offer of restitution is necessary.
    3. A committee cannot be appointed to bring suit for a sane man, because at one time he was a lunatic. He must bring suit himself to recover his rights, and may prove insanity to avoid a deed set up against’ him on the same terms as if he were defendant in the action, and the plaintiff were supporting his case with the same deed.
    March 16th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and-STERRETT, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Wyoming county: Of January Term 1880, No. 161.
    Ejectment by Ira Crawford against John Scovell for an acre of land.

      At the trial, before Ingham, P. J., the plaintiff proved possession . in himself and in those under whom he claimed, accompanied by proper conveyances, from 1844 to 1875, and rested. The defendant put in evidence a deed for the land in dispute from the plaintiff to him, dated 11th March 1876, and rested.
    The plaintiff then offered to prove by one Wandall that he did the business for defendant in arranging for procuring this deed; also to prove what the witness knew about the consideration paid and th’e whole transaction, for the purpose of showing the insanity of Crawford, as well as Scovell’s knowledge of it, and that there was an inadequacy of compensation. Also, that the bargain was unconscionable and unfair.
    The defendant objected to the offer as irrelevant, and as introducing a defence that is not admissible as against the plaintiff’s deed, viz., the defence of insanity. Also, that the offer is not full enough, in that before the plaintiff can avoid the deed, he must prove that he has offered to restore to the defendant what he paid for the property; and also, that it is not permissible for a party to allege his own insanity in a suit brought by himself against his sealed instrument or his executed contract. Objections sustained.
    ■ Plaintiff also offered to prove by this and other witnesses that Crawford was insane at the time he signed the deed, and therefore was incapable of executing such an instrument. Also, that it was procured by fraud, and that Scovell had knowledge of the insanity of Crawford. Objected to, for the reasons .assigned in first offer, and objections sustained.
    The court instructed the jury1: “ The deed offered, being a good and sufficient deed from the plaintiff to the defendant, is a sufficient defence in this action of ejectment, and your verdict should be for the defendant.”
    Verdict accordingly, and after judgment thereon, plaintiff took this writ and alleged that the court erred in refusing to admit the evidence under the above offers.-

      Sittser £ Harding, for plaintiff in error.
    In 2 Kent’s Com. 451, it is said: The party himself may set up as a defence and in avoidance of his contract that he was non compos mentis when it was alleged to have been made. The principle advanced by Littleton and Coke that a man shall not be heard to stultify himself, has been properly exploded as being manifestly absurd and against natural justice: Warden v. Eichbaum, 2 Harris 121: Bensell v. Chancellor, 5 Whart. 371; Cook v. Parker, 4 Phila. R. 265.
    But in rejecting our offer to show the insanity of the plaintiff at the time of signing the deed, with notice of that insanity to the defendant at the time, the court swept away our offer to show that the deed was procured by fraud. The principle upon which the evidence offered was rejected seemed to be, that if a party asserts and offers to prove that he was insane at any particular time prior to the commencement of suit, his evidence on that and every other subject should not be heard. ■ If such a fact, when asserted by a party, is fatal to his case, it should have the same effect when proved against him by the other side.
    March 22d 1880.

      W. E- G. A. little and William M. Piatt Sons, for defendant in error.
    Plaintiff’s first offer was to show his own insanity generally; and his second was to show his insanity at the time of the execution of his deed to the defendant. He did.not offer to show that he had recovered his reason. By the application of a well-known rule, if we are to believe thakhe was insane at the time of the execution of his deed, wé must presume that he continues insane: Leech v. Leech, 9 Harris 67, 69.
    The common-law rule, that “ a man shall not be heard to stultify himself,” has not been so far changed that a recovered lunatic may, in the action of ejectment, destroy his own indenture. None of the authorities cited by the plaintiff go to this extreme length. If it be that his deed can be disaffirmed, it should only be by bill in equity, whereby the defendant would have notice of the facts and claims against him, and time in which to prepare his evidence.
    The committee of the lunatic must be joined as plaintiff: Uberoth v. Bank, 9 Phila. 83. If the lunatic can sue alone, who W'ill be responsible for costs or vouch for it that the lunatic will not afterwards disaffirm his disaffirmance.
    . It is urged that the plaintiff wás not allowed to show that the deed was procured from him by fraud. As an independent offer, it is insufficient in that it stands unconnected with an offer to prove an attempt to restore to the defendant his purchase-money : Pear-soil v. Chapin, 8 Wright 9 ; see, also, Morrow v. Rees, 19 P. F. Smith 368. This offer as made was also irrelevant. It was to show fraud by the witness, not the specific acts from which the court could decide whether a fraud had been committed.
   Mr. Justice Trunkby

delivered the opinion of the court,

A formal offei; was made to prove that Ira Crawford was insane when he executed the .deed to John Scovell, that Scovell knew of the insanity and procured the deed by fraud. This was overruled on the objection that the offer was not full enough, in that, before the plaintiff can avoid the deed he must have offered to restore its consideration; that a plaintiff cannot allege his own insanity against his deed, and that the witness was incompetent because of his instrumentality in perpetrating the fraud. No objection was made that the specific acts were not set out in the offer, and it is too late to object now. That the witness was competent is not doubtful. As the case comes it presents these questions : 1. Can a plaintiff, who brings suit himself, prove his insanity to defeat his deed given in evidence by the defendant ? 2. Can he prove that the defendant knew of the insanity when he took the deed ? 3. May he show the deed was procured by fraud ? and 4. Must he restore the consideration before bringing suit ?

1. It is a general rule that a grantor in a deed may avoid his conveyance by proof that he was non compos mentis at the time of its execution : Bensell v. Chancellor, 5 Whart. 371; 2 Kent’s Com. 451; Gibson v. Soper, 6 Gray 279. Like the deed of an infant, a lunatic’s deed may be ratified and confirmed. Where there is no evidence of ratification after restoration to reason, it is impossible, upon legal principles, that the estate passed to the grantee in the deed. An insane person is incapable of making a valid deed, for he wants the consenting mind. “ The law makes this very incapacity of parties their shield. In their weakness they find protection. It will not suffer those of mature age and sound mind to profit by that weakness. It binds the strong while it protects the weak. It holds the adult to the bargain, which the infant may avoid; the sane to the obligation from which the insane may be loosed. It does not mean to put them on an equality. On the other hand, if intends that he who deals with infant or insane persons shall do it at his peril. Nor is there practically any hardship in this, for men of sound minds seldom unwittingly enter into contracts with infants or insane persons Gibson v. Soper, supra.

In Molton v. Camroux, 2 Exch. 487, an action to recover money paid for annuities, it was held' that when a person apparently of sound mind, and not known to be otherwise, enters into a contract for the purchase of property which is fair and bona fide, and which is executed and completed, and said property has been paid for and enjoyed, and cannot be restored so as to put the parties in statu quo, such contract cannot afterwards be set aside, either by the alleged lunatic or those who represent him. Like doctrine prevailed in Beals v. See, 10 Barr 66. The decision in Lancaster County Nat. Bank v. Moore, 28 P. F. Smith 407, rests on the same principle — there was neither fraud nor knowledge of the insanity. Without inconsistency, in Moore v. Hershey, 9 Norris 196, it was ruled that it is competent in an action by an endorsee of a note made by a lunatic, for the lunatic to defend, either by showing that the endorsee had knowledge of the lunacy, or that the note was originally obtained fraudulently, or without proper consideration. Paxson, J., said, “ I know of no case in which it has been held that a lunatic, when sued upon his contract, may not show want of consideration.” After speaking of the rule which had been urged in favor of the plaintiff, he adds, “We place our ruling upon the broad ground that the principle of commercial law above referred to does not apply to the case of commercial paper made by madmen.”

In Elliott v. Ince, 7 De G., M. & G. 475 (487) it is said that Molton v. Camroux was called a decision of necessity, and it is suggested that the same principle might apply to sales of land or mortgages. But in this country that rule is not universally extended to sales of personalty and is not applied to conveyances of real estate. However, on that principle, or the one in Bensell v. Chancellor, the offered testimony was admissible for the purpose of avoiding the deed.

The defendant urged that the plaintiff did not propose to show he had recovered his reason, and, upon the truth of his offer, the law presumes he continues insane; wherefore he cannot maintain the action and allege his insanity. Under the general issue in assumpsit, the defendant may show, in avoidance of the contract, that he was insane at the making of it. If he continues a lunatic he may not appear and plead by attorney, and if it so appears on examination the jolea by attorney may, before judgment, be treated as a nullity, and a guardian be appointed who will be entitled to plead de novo: Mitchell v. Kingman, 5 Pick. 431. So, when a plaintiff is met by a deed, good on its face, he may avoid it by proof that he was insane when it was executed. If his reason has been restored he has no other means of protection. A committee cannot be appointed for a sane man because he was at one time insane. He must bring suit himself to recover his rights, and may prove insanity to avoid a deed set up against him, on the same terms as if he were defendant in the action, and the plaintiff were supporting his case with the same deed. The principle contended for by the defendant would deprive a man, who had been non compos mentis, of remedy for recovery of his property, without fault on his part, and might work his utter ruin. If, at the trial, he should appear to be insane, the court would treat him and his cause as it would any other plaintiff suffering under like malady.

2. From the foregoing it is manifest that it is competent to prove the defendant had knowledge of the insanity when he took the deed. If unnecessary for its avoidance, it may be material on the question of restoration-of the consideration. He who knowingly deals with a madman takes the risk of losing.

3. For like reason it may he proved that the deed was procured by fraud. Even the holder of negotiable paper may fail to recover because the maker was insane, when, but for that, there would be no defence to his action on the ground of fraud or want of proper consideration. Proof that the bargain was unfair and unconscionable would be pertinent in determining the equitable claim of the defendant.

4. The consideration need not be restored before commencement of the action, nor after, in all cases: To say that an insane man before he can avoid a voidable deed, must put the grantee in statu quo, would oftentimes be to say his deed shall not be avoided at all. The more insane the grantor was when the deed was made, the less likely will he be to retain the fruits of his bargain so as to be able to make restitution. One of the obvious grounds on which the deed of an insane man is held voidable is not merely the incapacity to make a valid sale, but the incapacity prudently to manage and dispose of the proceeds of the sale. And the same incapacity which made the deed void may have wasted the price, and made the restoration of the consideration impossible: Gibson v. Soper, supra. In that case the defendant contended there could be no recovery because restitution had not been offered, and thereupon the plaintiff proposed, if anything was due, to make such restitution and repayment in such way and manner as the court should direct. The question was, as it is here, whether restoration is a condition precedent to recovery, and not whether under any circumstances a grantee, after avoidance of the deed, may recover back a part or the whole of the price paid. It was said that if the grantor, having been restored to sound mind, still retains and uses the consideration of the deed without offer to restore, or seeks to enforce the securities, or avail himself of the contract which constituted such consideration, such conduct may furnish satisfactory, and, it may be, conclusive evidence of a ratification. That would be an entirely different case from one where the grantor wasted the price he received before his reason was restored. Although the deed has not been ratified, and consequently the plaintiff is entitled to recover the land, should it appear that, in equity, the whole or a part of the consideration ought to be restored or repaid, under the practice in this state, there would be no difficulty in doing justice between the parties by a conditional verdict and judgment.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Paxson

text:
    Moore versus Dixon.
    In ejectment, the plaintiff showed title in C. The defendants set up title by possession, commencing with D. In rebuttal, plaintiff proposed to show that D.’s possession was not adverse to plaintiff’s title; that said possession was obtained by virtue of a contract with C.; that O. subsequently brought ejectment against D. and recovered; that to avoid being ousted, D. leased the land from C., and had executed a writing agreeing to deliver up possession at a certain time: Held, that this evidence was competent in rebuttal. Held, further, that under such circumstances it might be left to the jury to infer whether there was not a mistake in such contracts, leases, &c.
    March 17th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.

      Error to the Court of Common Pleas of Wyoming county: Of January Term 1880, No. 43.
    Ejectment by Luke Moore against Anson Dickson and others, to recover a tract of one hundred and twenty-one acres of land in Wyoming county, part of a larger tract in the warrantee name of Michael Rogers.
    At the trial, before Ingham, P. J., the plaintiff showed title derived through one Eleazer Carey. The defendants set up a title commencing with one John Decker about 1836. In rebuttal the plaintiff offered in evidence a contract between Carey and Decker dated August 29th 1839, for land described as “all the land on the north side of the south branch of the Tunkhannock creek, contained in a certain tract in the warrantee ñamé of Henry Rogers'.” This to be followed by evidence that Decker held the land in dispute under this contract, and to be followed by evidence of an ejectment by Carey against Decker for the land as described in the aforesaid contract, a recovery in said action, the issue of a • writ of habere facias possessionem therefor, and the execution of a lease on August 24th 1842, by Carey to Decker, for the land as described in the contract of 1839, when it was agreed by Decker, as the tenant of Carey, that he would deliver up possession of the land on the 1st of April following, and still further to be followed by evidence that Decker remained in possession of the land in dispute by virtue of said lease, and not adversely to plaintiff’s title.
    Defendants objected that the evidence was incompetent and inadmissible, because it would vary a writing by parol testimony and transfer the title of land without a writing, in contravention of the Statute of Frauds. That it was inadmissible to prove that a man entered into possession of one piece of land under a contract that calls for another piece of land. That so far as this evidence goes to make out an independent title, it was only competent in chief, and not in rebuttal. Objections sustained and offer rejected. (First assignment of error.)
    The plaintiff also offered in evidence an exemplification from a sheriff’s deed-book of a sheriff’s deed to one Philip Rykert in 1812. The record did not disclose, however, what land was conveyed by this deed. Objected to and objection sustained. (Second assignment of error.)
    Verdict for defendants, when the plaintiff took this writ, and alleged that the court erred in rejecting the above testimony.

      Pelix Ansart and A. Ricketts, for plaintiff in error.
    There was a mistake in the Christian name of the warrantee, for whom the tract had been originally surveyed, which was manifestly a mutual mistake, as it ran all through the subsequent proceedings between Carey and Decker, and is repeated in the subsequent agreement as to leasing. ' That such k mistake may be shown by parol evidence, and the instrument reformed accordingly, and this by the exercise of the equity powers inherent in all our courts of civil jurisdiction, is fully declared by the cases of Huss v. Morris, 13 P. F. Smith 367; Gump’s Appeal, 15 Id. 476; Lycoming Mutual Ins. Co. v. Sailer, 17 Id. 108; Mosley v. Massey, 8 East 149; Hopkins v. Hitchcock, 14 C. B. (N. S.) 65, 73; Miller v. Travers, 8 Bing. 244; Doe d. Smith v. Galloway, 5 B. & Ad. 43; Janes v. Whitbread, 11 C. B. 406; Ayray’s Case, 11 Co. 18 b, 21 a; Llewellyn v. The Earl of Jersey et al., 11 Mees. & Wels. 183; Bittleston v. Cooper, 14 Id. 399; Boardm.an v. Heed & Ford’s Lessees, 6 Peters 328, 345; Powell v. Biddle, 2 Dall. 70; Vernor’s Ex’rs v. Fisher, 4 P. L. J. 67. And see Smith v. Evans, 6 Binn. 102; Boar v. McCormick, 1 S. & R. 166; Large v. Penn, 6 Id. 488.
    May 3d 1880.

      Sittser £ Harding and P. M. Osterhout, for defendants in error.
    The contract, the ejectment record and lease should not have been received in evidence. On their face they related to a different tract of land from the one in controversy.
   Mr. Justice Paxson

delivered the opinion of the court,

Had the contract between Eleazer Carey and John Decker dated August 29th 1839, been offered in evidence without testimony to connect it with the locus in quo, its rejection would not have been error. But it was .offered in connection with evidence that John Decker held the land in dispute under the contract. This was sufficient to entitle the contract to go to the jury. If Decker actually held the land under this contract, it was competent evidence; its effect was for the jury and they'might infer a mistake in the warrantee name used therein. The objection that it should have been offered in chief was not well taken. The plaintiff showed title derived through Eleazer Carey. The' defendants set u'p title by possession, commencing with John Decker. To rebut this the plaintiff proposed to show that Decker’s possession was not adverse to plaintiff’s title, but on the contrary that his possession of the land in dispute was obtained by virtue of this contract with Carey, and that subsequently, Carey brought ejectment thereon against Decker and recovered, and issued a writ of habere facias possessionem; that to avoid being turned out, Decker leased the land in dispute, and on the 24th of August 1872, executed a writing under seal, intended to cover this land, and agreeing as tenant of Carey, to deliver up the possession thereof on the first of April ensuing. This evidence was strictly rebuttal.

There is nothing upon the record to show that the evidence .rejected by the court, and which forms the subject of the second assignment, was irrelevant. ' The description contained in the vena, ex. is not given, nor are we informed what land the sheriff’s deed embraced. We can guess, it is true, but that does not enable us to say the rejection of the offer was error.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Trunkey

text:
    Borough of Frackville. In re re-audit of accounts of Auditors.
    1. The third section of the Act of February 17th 1859, entitled “An act to secure a stricter accountability of certain public officers in Schuylkill county,” provides that, on petition of taxpayers of any township or school district, special auditors may be appointed to revise the accounts of the township or school district auditors: Meld, that the act does not authorize the appointment of such special auditors to revise -the accounts of borough auditors.
    2. The use of terms in the act precludes the inference that the word “ town.ship” was intended to mean or include a “ borough.”
    March 17th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunk-ey, Sterrett and Green, JJ.
    Certiorari to the Court of Common Pleas of Schuylkill county: Of January Term 1880, No. 75.
    In the matter of the exceptions to the report of B. S. Patterson and others, special auditors, appointed to re-audit the accounts of the public officers of the borough of Frackville.
    The borough of Frackville Avas incorporated under the general borough laws of Pennsylvania on the 10th of April 1876. In the year 1877, Daniel Frack and H. H. Price AA’ere appointed by the town council- of said borough treasurer and tax collector, respectively, for said borough for the year 1877. These appointments they accepted and filed their official bonds in pursuance of section 1 of the Act of February 17th 1859. Their accounts for the year ending March .31st 1878 were audited by the borough auditors, who reported that there was a balance of $303.32 due the borough on account of Frack, and a balance of $373.33 on account of Price. This report of the auditors was duly filed in the Court of Quarter Sessions. No appeal was taken by either accountant. On the 12th of February 1879, a petition was presented to the Court of Common Pleas by the accountants and certain taxpayers asking for the appointment of special auditors to revise, re-state and re-settle said accounts as directed by the third section of the Act of February 17th 1859, entitled, “ An act to secure a stricter accountability of certain public officers in Schuylkill county,” which makes the following provision :—
    “ That upon the petition of ten or more taxpayers of any town ship or school district, in said county of Schuylkill, verified by the oath or affirmation of two or more of said petitioners, setting out reasons therefor, the Court of Common Pleas of the said county of Schuylkill shall, in their discretion, upon the sufficiency of the reasons set out in said petition, appoint three or more special auditors to revise, re-state and re-settle any of the accounts filed in the office of the Clerk of Quarter Sessions according to the provisions of the second section of this act; the report of said board of special auditors, when approved by the court, to be final and conclusive ; and if any balance shall appear by said report to be due to such township ór school district from the. accounting officer, the said court shall order the enforcement of the payment of such balance with interest, by judgment upon the official bond of such officer and execution thereupon, which bond shall be removed into the office of the prothonotary of the Court of Common Pleas for the purposes of such judgment and execution.”
    May 3d 1880.
    The court, Walker, A. L. J., granted the petition, and appointed Messrs. Patterson, Guldin and Wilson special auditors. On May 19th 1879, they filed their report, finding that Frack and Price were not indebted to the borough.
    To this report the borough officers and certain taxpayers filed exceptions, the first being as follows: “ There was no authority for the appointment of the special auditors, under the Act of 1859, as that act, in the section authorizing the appointment of special auditors, refers only to townships a-nd school districts.”
    The court, Bechtel, A. L. J., dismissed the exceptions and confirmed the report, when the exceptants took this writ, and assigned this action for error.

      M. M. L. Velle, for plaintiff in error.
    The careful use of names in the Act of 1859, precludes the inference that, by the use of the word “township,” the intention was that borough should be included.

      J. F. Minogue, and V. W. Bechtel, for defendants. in error.—
    The word “township” has been held to include “borough” in a number of acts where said acts did not in terms apply to boroughs; Newville Road Case, 8 Watts 172; Sharett’s Road, 8 Barr 89: In re Callowhill Street, 8 Casey 361; Scranton Borough Election, Bright. Elec. Cas. 458; Road in Milton, 4 Wright 300; Blair v. Boggs Township School District, 7 Casey 276.
   Mr. Justice Trunkey

delivered the opinion of the court,

The Act of February 17th 1859, entitled “An Act to secure a stricter accountability of certain public officers in Schuylkill county,” is so clearly expressed that it forbids interpretation in its relation to the only assignment which will be considered, namely, “ The court erred in holding that section three of said act applies to boroughs.” By the first section, certain officers of all townships and boroughs and school districts are required to file bonds, as prescribed, for the faithful performance of their duties. This includes every such municipality in the county, and so does the eleventh section. The fifth section applies to “ any county, borough, township or school district officer,” and alone embraces county officers. Sections seven, nine and ten relate exclusively to township officers; and section eight to officers of townships and school districts. It is declared in the sixth section that no person shall hold more than one township, borough or school district office, except the offices of township treasurer and collector. Section two compels all township and school district auditors to file the accounts audited and settled in the office of the clerk of the Court of Quarter Sessions. The third section authorizes petition by ten or more taxpayers of any township or school district to the Court of Common Pleas, which may appoint three or more special auditors to revise, restate and resettle any of the accounts filed according to the provisions of the second section. And the twelfth section extends the provisions of the second and third to all accounts of township and school district officers which were not audited and settled previous to the passage of the act.

This statute, as a whole, reveals careful preparation and correct .use of names in its several sections with reference to the subject of each. Nowhere does it appear from the context that the word “township” is intended to mean or include a borough; and, by naming the latter in proper places, the inference is excluded that sections applying expressly to townships and school districts embrace boroughs. ’ The intendment of sections two and three is plain — there is no ambiguity. It was not absurd in the legislature to leave the accounts of borough officers to be audited and settled, with right of appeal to interested parties, under the general laws of the Commonwealth. “ When an act is expressed in clear and precise terms; when the sense is manifest and leads to nothing absurd, there can be no reason not to adopt the sense which it naturally presents:” Potter’s Dwar. on Stat. 143.

It was contended for the petitioners that they are within the statute, because the duties of auditors in a borough are the same as in a township,, and that the word “ township” is a general term, including all municipal divisions of the county. To support this cases were cited, which arose under the road, tax and schobl laws. But those cases are not analogous to the present, nor is the position tenable; for, as we have seen, the numerous provisions of this statute are severally expressly applied to the municipality, or municipalities, by proper name, whether county, township, borough or school district, and not one is used as a general name including any other. Where the legislature have discriminated, the court shall not lose sight of the distinction.

Decree reversed.