text:
    Durborrow’s Appeal.
    1. The fee bill in equity adopted in Philadelphia in 1844, was not extended by any law to other counties of the state.
    2. The Act of February 14th 1857, which declares that the courts of ^Common Pleas in several counties shall have the “ same chancery powers and jurisdictions which were then by law vested in the Court of Common Pleas or District Court of Philadelphia,” did not carry the rules of those courts into other counties, but merely conferred the same powers and jurisdictions, among which was the right to make rules and regulate the taxation of costs.
    3. The equity rules adopted by the Supreme Court govern in the courts of the state, and by the Act of May 4th 1864, express power is conferred upon the Courts of Common Pleas to establish a tariff of fees and costs in equity proceedings and cases.
    May-29th 1878.
    Before Agnew, O. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Appeal from the Court of Common Pleas of Huntingdon county: Of May Term 1878, No. 178.
    Appeal of J. R. Durborrow from the decree of the court dismissing his appeal from a taxation of costs by the prothonotary.
    The facts were substantially these: In Durborrow’s Appeal, 3 Norris 404, wherein the Supreme Court reversed the decree of the court below, the opinion of the court concluded in these words, “ The costs, including those collected on the writ of assistance, to be paid by the appellee.” Upon the return of the record to the court below, Durborrow, the appellant, filed the following bill of costs, which was taxed and allowed by the prothonotary:
    Drawing demurrer, . . . . $ 4 32
    Printing demurrer, 4 pages, . . . 6 00
    Drawing answer, .... 36 08
    Printing answer, 18 pages, . . . 27 00
    Drawing interrogatories, ... 5 66
    Printing interrogatories, . . . 6 00
    Printing defendant’s paper-book,. . 109 00
    $194 06
    Musser, the appellee, excepted to this taxation, whereupon the prothonotary retaxed the same and allowed the items for printing the demurrer, answers and interrogatories, but disallowed those for drawing the same, in an opinion saying, “ The items in the bill of costs for drawing the demurrer, answers and interrogatories, are stricken out because there is no rule of this court and no rule among the equity rules of the Supreme Court, allowing them. And further, it is the. opinion of the prothonotary, on examination of the authorities and old equity fee-bill cited, that the right of the defendant to costs for drawing his demurrer, if it ever existed under the practice in this county, is abrogated by the adoption of the new rules in equity practice of May 27th 1865. Prior to the adoption of these rules, as I understand it, the proceedings were filed in writing, and the party was allowed his costs for drawing them; but now the answer, &c., are required by the new rules to be printed, and the party is to be allowed his costs for printing, instead of drawing answer, &c. If this view of the case is correct, he would not be allowed for both printing and drawing his papers. Rule No. 14, mentioned, allows the costs of printing, and therefore costs taxed for drawing are stricken off. The item of $109 for paper-book is not allowed. No rule or authority under which it could be allowed was brought to the attention of the prothonotary, and it was principally claimed by defendant’s counsel, before the prothonotary, as an item allowable, not under any rule or authority, but in the discretion of the court, which discretion the prothonotary does not think he has the right to exercise.”
    The appeal of Durborrow from this taxation of costs was dismissed by the court below, and the taxation confirmed, when this appeal was taken, and this action of the court assigned for error.

      B. Bruce Petrihen and Gieorge B. Orlady, for appellant.
    By Act of June 16th 1836, Pamph. L. 10, the costs of all proceedings in equity were within the discretion of the court, which continued to be the practice until the Act of July 26th 1842, Pamph. L. 9, was enacted, making it the duty of the Nisi Prius Judge of the Supreme Court in Philadelphia “to make and establish a tariff of fees and costs in equity cases, and in all other cases in the said court, for services not provided for by the existing Acts of Assembly.” In pursuance of which the Supreme Court and the Court of Common Pleas of Philadelphia county adopted an equity fee-bill. See Brightly’s Equity Jurisprudence 735. Which equity fee-bill has remained unchanged, except “ incidentally” by the rules of equity practice adopted by the Supreme Court of Pennsylvania, May 27th 1865, by the report of ’the commissioners, who concluded their report as follows: “ The subject of costs has been only incidentally touched, as it did not appear to be within the province of the committee.”
    The Court of Common Pleas of Huntingdon county has no equity rules, and have adopted, by custom, the rules and practice of the Supreme Court, and from these rules (No. 14) the prothonotary decided this case. The equity fee-bill adopted by the Supreme Court (Brightly’s Eq. Juris. 736), allows “for drawing bill, answer or other pleading, demurrer, exceptions, interrogatories, for every page of thirty lines, each of ten words, ten cents; and six cents per line for each subsequent page.”
    The rules adopted May 27th 1865, are silent on the right to costs for drawing, but in addition to the costs of the cause then allowable provide “ the amount paid for printing shall be allowed as costs of the cause.” The committee appointed “ to revise and amend the rules of practice in equity cases” say in their report “ that, except where such changes have been introduced, they have considered it better to adhere to the language and general scheme of the existing rules.” Had they intended to annul the rule then in practice, providing for costs of drawing “ bill, answer or other pleading,” they would have plainly said so. The fee-bill and new rules are consistent with each other, and costs for drawing and printing are both allowable under them.

      Samuel T. Brown and B. M. Speer, for appellee.
    No appeal lies from the decree of the Court of Common Pleas taxing costs: McCauly’s Appeal, 5 Norris 187. The act of May 4th 1864, Purd. Dig. 601, makes it the duty of the judges of the District Courts and Courts of Common Pleas, to establish tariffs of fees in equity proceedings. This gave them a discretionary power as to costs in equity. No general tariff or fee-bill in equity was ever adopted by the judges of the Common Pleas of Huntingdon county, but the discretion vested in them was exercised in each particular case as it arose. That discretionary power was exercised in this case, and its exercise is not reviewable here. This is the principle decided in Spering v. Smith et al., 9 Phila. 277.
    The rule of the Supreme Court, requiring a paper-book to be printed, is for its own convenience, and no rule nor law makes the printing of the book a part of the costs in equity proceedings or at law.
    June 3d 1878,
   The judgment of the Supreme Court was entered

Per Curiam.

We find nothing to correct in the taxation of the costs below, at the instance of this appellant. The fee-bill in equity, adopted in Philadelphia in 1844, was not extended by any law to the other parts of the state. It was not until 1857 the equity jurisdiction was extended to the remainder of the state. The act declared that the Courts of Common Pleas in the several counties, in addition to the powers and jurisdictions then vested in them, should have “ the same chancery powers and jurisdictions which were then by law vested in the Court of Common Pleas or District Court of the city and county of Philadelphia.” This did not carry the rules of these courts into other counties, but merely the same powers and jurisdictions, among which was the power under the general law to make rules of court regulating the taking of fees. The Supreme Court, by virtue of its powers, made a set of rules in equity to govern in the courts of' the state, and in 1864, express power was conferred by the act of that year upon the Court of Common Pleas to establish “ a tariff of fees and costs in equity proceedings and cases.” The rules so adopted by the Supreme Court and several Common Pleas govern.

Taxation affirmed.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    Pennsylvania Canal Co. versus Manning.
    1. The Acts of May 16th 1857 and May 3d 1864, which provided for the sale by the state of its canals, and declared the obligation imposed on the purchaser, did not impose on the latter any obligation to alter, enlarge deepen or otherwise improve the canal, but simply to keep it in as good repair, and operating condition, as it had been during its ownership by the state.
    2. The duty of the purchaser was to repair and restore those portions of the canal which had ceased to perform and fulfil their proper functions, but it was not obliged to create anything which had not previously existed.
    3. Penna. Railroad Co. v. Patterson 23, P. F. Smith 491, followed.
    May 29th 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.
    Error to the Court of Common Pleas of Blair county: Of May Term 1878, No. 131.
    Case by John Manning against the Pennsylvania Canal Company, for the detention of his boat while navigating the canal of defendants.
    The plaintiff alleged on the trial, that the Act of 16th of May 1857, authorizing the sale of the Main Line to the Pennsylvania Railroad Company, required the purchaser “to keep up the canal from Holidaysburg to Philadelphia in good repair and operating condition;” and also that the Act of 3d May 1864, authorizing the sale of said canal to the defendants, imposed the same condition upon them, and further required them “to keep said canal in good navigable condition during the navigation season.” The plaintiff contended that defendants had not so kept up their canal, and that at various points during the season, he was with his boat, mules and hands detained in consequence of the bad condition of the canal.
    The other material facts are stated in the opinion of this court.
    The 10th point of the defendants was as follows:—
    “ The obligation imposed upon the defendants by the Act of 1857, did not require them to alter, enlarge, deepen, or otherwise improve the canal, and as the detentions complained of by the plaintiff on tl)e Juniata Canal could not have been prevented without such alteration, enlargement and deepening, the defendants are not responsible.’

      The answer of the court (Bucher, P. J., of the Twentieth Judicial District), was:
    “ The Act of 1857 clothed upon the defendant the duty of keeping the canal in navigable order; if it was not in navigable order at the time of the purchase it was the duty of the defendant to put it in that condition as soon as it reasonably could, taking into consideration the magnitude of the work and all the circumstances surrounding the particular case; and for further answer we refer to the general charge.”
    This answer constituted the 11th assignment of error.
    In the general charge, the court, inter alia, said:
    “ With reference to the mitre sill, we instruct you that if it was so high that it interfered with navigation, and caused unnecessary detention, the defendants would be liable, even if this defect occurred while the Commonwealth owned the canal.”
    This portion of the charge constituted the 14th assignment of error.
    The verdict was for the plaintiff for $208.14, and after judgment thereon defendants took this writ, among other assignments of error, being those noted above.

      I). J. Neff and L. W. Hall, for plaintiffs in error.
    The alleged detention at Huntingdon dam was claimed to be caused by the mitre sill of the lock being higher than it should have been. This was as the state constructed it. There was no pretence that it was out of repair. Such difficulties as alleged at this point could not have been obviated, without constructing a new canal, or enlarging, widening and deepening it. That no such obligation was imposed on the defendants was expressly ruled in case of Pennsylvania Railroad Co. v. Patterson, 23 P. F. Smith 491.

      Aug. S. Landis, for defendant in error.
    The defendants were presumed to know, and ought to have known the condition of their own canal, and if there were leaks, obstructions and other defects, they should have been removed and remedied by the defendants, for as Justice Williams held,- the law required them to keep their canal in good repair and operating condition. Is it possible, if a mitre sill becomes so warped or displaced as to impede navigation, that defendants shall not repair it, because it was there when they bought the canal ?
    October 7th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

The defendant in error owned a canal-boat. With it, he navigated the canals of the plaintiffs in error. He brought this suit to recover damages for detention of his boat. The canals were built, and for several years operated, by the state. The Acts of 16th May 1857 and 3d May 1864, provided for a sale by the state of the main line of the canal, and declared the obligation imposed on the purchaser thereof. The purchaser was required to for ever keep it in good repair and operating condition. The plaintiff in error took and held the canal subject to this duty and obligation. If, therefore, it was out of repair, so as to be unfit for use at the time of the sale by the state, it was the duty of the company to so repair it in a reasonable time, as to make it navigable. The statute did not impose on the purchaser any obligation to alter, enlarge, deepen or otherwise improve the canal. The duty of the company was-fully perfonned by keeping and putting it in as good repair and operating condition as it had been at any time, during its ownership by the state: Penna. Railroad Co. v. Patterson, 23 P. F. Smith 491.

The 10th point submitted by the plaintiff in error, requested the court to charge the jury that “the obligation imposed upon the defendants by the Act of 1857, did not require them to alter, enlarge, deepen or otherwise improve the canal, and as the detentions complained of by the plaintiff on the Juniata Canal, could not have been prevented without such alteration, enlargement and deepening, the defendants are not responsible.” As the latter part of this point assumes a fact, which, under the evidence, should have been submitted to the jury to find, it would not have been a sufficient cause for reversal, if the learned judge had simply refused to affirm the point. Instead of. doing that, he answered, “ the Act of 1857, clothed upon the defendants the duty of keeping the canal in navigable order; if it was not in navigable order at the time of the purchase, it was the duty of the defendants to put it in that condition as soon as they reasonably could, taking into consideration the magnitude of the work and all the circumstances surrounding the particular case; and for further answer we refer to the general charge.” This answer was wholly inadequate to present the true distinction to the mind of the jury. There is nothing in the general charge that cures the defect. It fails to instruct that the company was not required to alter, enlarge, deepen or otherwise improve the canal. The jury were told that it was the duty of the company to keep it in navigable order, and if it was not in such order at the time of the sale, the company was required to put it in that condition within a reasonable time théreafter. The jury may well have understood the instruction to be, that the company was obliged to put and keep the canal in navigable condition, although to effect that purpose it might be necessary to alter, enlarge, deepen or change its construction. Against such an opinion they should have been guarded. The duty of the company was to repair and restore those portions which had ceased to fulfil and perform their proper functions ; but it was obliged not to create anything which had not previously existed. The company was not bound to widen or deepen the canal, nor its locks, nor to change its grades or levels, so as to make its condition different from that in which the state had once constructed and put its several parts. This answer was, therefore, clearly calculated to mislead the jury. Whenever such is its reasonable effect in an important part of the case, it is cause' for reversal: Wenger et al. v. Barnhart et al., 5 P. F. Smith 300; Gregg Township v. Jamison, Id. 468; Penna. Railroad Co. v. Berry, 18 Id. 272; Stall v. Meek, 20 Id. 181.

The error which is deducible from the answer to the tenth point is more distinctly expressed in that portion of the charge covered by the fourteenth assignment. If the mitre sill remains in the position and condition in which it was placed and put by the state, if it is not out of repair, the company is not liable for its interference with navigation. The company is not compelled to increase the capacity of the canal to adapt it to larger boats than the state designed to have navigated therein. If found inadequate for modern boats of increased size, the difficulty arises from its original construction, and not from want of proper repair. To pass such boats the defect can only be cured by an alteration in its structure, which the company is not, by law, compelled to make. The true question is, did the company keep and maintain the canal in as good navigable condition and repair as it had been constructed and put by the state at any time before, the sale ? If the state erred in the manner of constructing it, the company is not liable therefor. It follows that the eleventh and fourteenth assignments are sustained. We discover nothing in the remaining assignments requiring correction.

Judgment reversed, and a venire facias de novo awarded.

Trunkey, J., filed a dissenting opinion.


author: Mr. Justice Misrcur

text:
    Kirk’s Appeal.
    1. Where an attorney-at-law releases .a judgment of his clients without their knowledge or consent, such release is a fraud upon them and does not discharge the lien of the judgment.
    2. M. assigned a judgment to H., an attorney-at-law, “ to be held by II. as collateral security for the payment of the claim of B. & K., for which claim I have this day given to the said B. & K. three promissory notes.” This assignment was recorded. H. afterwards gave a release of thisjudgment, the record entry being “ for value received H. releases from the lien of this judgment the real estate of * * * but does not satisfy the judgment.” Held, that this record gave sufficient notice of an implied breach of trust to make inquiry a duty, and a purchaser must be affected thereby, and that a release thus executed did not discharge the lien of the judgment.
    May 30th 1878.
    Before Agnbw, C. J., Mercur, Gordon, Paxson, Woodward and Trunkey, JJ. Sharswood, J., absent.

      Appeal from the Court of Common Pleas of Blair county: Of May Term 1878, No. 169.
    Appeal by William T. Kirk, surviving partner of Boggs & Kirk, from the decree of the court on the report of the auditor appointed to distribute the fund arising from the sheriff’s. sale of the real estate of Essington Hammond.
    The real estate sold was known as the “ Sarah Furnace and Maria Forge property,” and was devised by Dr. P. Shoenberger to his five grandchildren, viz., David 0., Sarah S., G. Troup, Peter S., and Sophia McCormick, intermarried with William D. Gem-mill. The first three each received the one-sixth, and the last two the one-fourth each. On the 27th of November 1867, there were entered in the Court of Common Pleas of Blair county six several judgments, on warrants of attorney, in which Hugh McNeal was the plaintiff, and G. Troup McCormick and Peter S. McCormick were the defendants, and which were liens on the interest of the defendants in that portion of the real estate lying in Blair county. One of these judgments for $5000 was, on the 2d of December 1867, assigned by IT. McNeal to E. Hammond, attorney for Boggs & Kirk, “ to be held by the said E. Hammond as collateral security for the payment of the claims of Boggs & Kirk, for which claim I have this day given to the said Boggs & Kirk three promissory notes, one at thirty, one at sixty and one at ninety days.” On the 13th of June 1868, E. Hammond entered into separate articles of agreement with G. Troup and Peter S. McCormick for the purchase of their interests in the above-mentioned property. He purchased subject to the liens of the McNeal judgments, and obligated himself to pay them. He never obtained a deed from G. Troup McCormick. He did, however, on April 28th 1869, obtain a deed from Peter S. McCormick, and at the same time executed a mortgage to Peter for $10,000. This mortgage, on the 13th of Qctober 1869, was assigned by Peter to W. M. Lloyd. Mr. Hammond, after this date, and prior to the 22d of November 1869, obtained deeds from Sarah S. McCormick, W. D. Gemmill and wife, for a further interest in the property, and also a sheriff’s deed for a portion of David O. McCormick’s inter'est, another portion being owned by M. Graver. On the 22d of November 1869, after Mr. Hammond had entered into the agreement to purchase the property, he filed a written paper, releasing the interest of Peter S. McCormick in said property from the lien of the judgment of McNeal, for use of Boggs & Kirk, but stated that the judgment was not to be satisfied. This release was without the knowledge or authority of his clients, and without any consideration. On the 24th of November 1869 Mr. Hammond executed a mortgage on said Sarah Furnace and Lower Maria Forge to George W. Smith for $40,000. On this mortgage the property was sold on October 20th 1876, to George W. Smith for $56,920, and which is the fund for distribution. An auditor was appointed, and it was claimed by G. W. Smith, the mortgagee, that no portion of the fund should be appropriated to the Boggs & Kirk judgments, because of the release of E. Hammond. Boggs & Kirk contended that the release was by their attorney, without consideration, and without their knowledge or consent, and was not, therefore, binding. The judgment was revived in due time against both of the original defendants, with notice to E. Hammond as terretenant. The auditor found that Mr. Hammond was, at the time of the release, the attorney of Boggs & Kirk; that it was done without their knowledge and without consideration, and therefore appropriated to the Boggs & Kirk judgment. .Exceptions were filed to the allowance of the judgment, and the court- sustained the exceptions, on the ground that there was no record evidence that Mr. Hammond was the attorney for Boggs & Kirk.
    The court, inter alia, said:
    “ The report of the auditor is in the main correct, but I am forced to the conclusion that in one particular he erred.
    “While conceding the soundness of his decision, with reference to the assigned judgments (H. McNealv. McCormick, Nos. 154 and 155, Oct. Term 1867), on the assumption that E. Hammond was the attorney of Reigle, Fiester & Co. and Boggs & Kirk, yet there was no evidence on the record, on the 24th November 1869, the date of George W. Smith’s mortgage, that Hammond sustained any such relation to them.
    “ I have looked in vain, in the auditor’s report, and through the records of these judgments, for a single fact, which at that date would have suggested knowledge of the relation to the mortgagee, or even have been sufficient to put him on inquiry. The judgments were assigned to E. Hammond, Esq., to secure notes of Beigle, Fiester & Co., and notes of Boggs & Kirk. At most he stood in the relation of trustee for these creditors of McNeal, having upon the record the legal title to the assigned judgments, bound to act in good faith toward these, for whose use the judgments were assigned, and accountable personally for any loss sustained by them through his neglect or mismanagement.
    “ But, with the title thus upon the record, he could, as to third parties, dispose of the assigned judgments, without the consent of Reigle, Fiester & Co. or Boggs & Kirk, and he could release their lien upon the lands of the defendant in the judgments.
    “ The relation of a mere trustee, and that of an attorney, are in many respects the same, but there is this difference: an attorney secures and collects, he does not manage the trust fund, change the securities, or seek an investment of them. - His powers are fixed by law and are presumed to be known by every one dealing with him in matters affecting his client’s securities.
    “ But there is no such restriction by law. upon the powers of an individual holding the legal title of a judgment; having the legal ownership of the security upon the record, and nothing upon the record tending to show any limitations of his powers, the public can deal with him as the legal owner.
    “ So here Smith, the mortgagee, as well as Mr. Morrow, the officer who gave the certificate, had a right to infer Hammond’s authority to release the lien of these judgments, and, in so doing, they will be protected against subsequent denials of his authority by the equitable owners.
    “It is true, the evidence before the auditor on the hearing amply justifies his finding of the fact that Hammond vTas really the attorney for Reigle, Eiester & Co. and Boggs & Kirk; but the evidence to support this finding is evidence not within the view of Smith when he took the mortgage. It is adduced for the first time before the auditor.
    “ If the evidence showmd knowledge on the part of Smith, or showed facts wdiich should have put him on inquiry, the conclusion of the auditor should be sustained, but the record as it stood on the 24th November 1869, the date of the mortgage, warranted Smith in acting on the belief that Hammond had a right to release the land from the lien of the judgments.”
    The court, therefore, directed the auditor to reform his report accordingly, and the money appropriated to Boggs & Kirk was applied to mortgage of Peter S. McCormick for the use of William M. Lloyd.
    Erom this decree this appeal was taken.

      H. M. Baldridge, for appellant.
    Hammond had no authority to execute the release, and the evidence, as disclosed by the records, at the date of Smith’s mortgage, showed that Hammond was an attorney, or at least disclosed such facts as should have put Smith upon inquiry. A trustee only takes the legal estate where he is intrusted with duties or powers, for the discharge of v'hich it is requisite that he should take it. The assignment of this judgment was in fact to Boggs & Kirk. It is true it is made to E. Plammond as collateral security for Boggs & Kirk, but if he is a trustee, he is but a nominal one. He has no duties to perform, no powers delegated. If a trust, it was a naked dry one, and a bare trustee has no power to defeat the trust by an act done without the assent of the parties beneficially interested: Pratt v. Lewis, 4 Whart. 22; Hatz’s Appeal, 4 Wright 209; Smith v. Tome, 18 P. F. Smith 158. The title should have been investigated before purchase: Hill on Trustees 768, 769, 770. A purchaser from a trustee is bound to inquire into the authority of the trustee : Walsh v. Stille, 2 Pars. Eq. Cases 17 ; Bayard v. Bank, 2 P. E. Smith 232.

      Samuel S. Blair, for appellee.
    The entry on the record showed that Hammond had full power over the judgment. There was no indication that he was either trustee or attorney for Boggs & Kirk. He was apparently the owner of the notes, and clothed with the full legal title to the judgment.
    October 7th 1878.
   Mr. Justice Misrcur

delivered the opinion of the court,

This contention arises on the distribution of a fund produced by a sheriff’s sale of real estate. The rights of the claimants depend on the effect to be given to a release executed by E. Hammond, of the lien of the judgment on which the appellants claim the money. The judgment was recovered by McNeal. . In the assignment thereof, which he made to Hammond, he declared it was “to be held by Hammond as collateral security for the payment of the claim of Boggs & Kirk, for which claim I have this day given to the said Boggs & Kirk three promissory notes.” This assignment was filed of record. The prothonotary entered on the docket the substance of the assignment, and added: “ see paper filed.” Hammond was an attorney-at-law. As attorney for Boggs & Kirk he took the notes of McNeal for a debt due them, and accepted the assignment. Pie therefore held it for their benefit. The assignment showed this fact. As between him and them he had no more right to release the lien of the judgment on lands bound thereby, than he had to give up the notes to the maker without payment.

In conducting a suit, an attorney-at-law has large powers. After judgment recovered, he may execute a valid receipt on its payment. Yet he cannot sell and assign it without the ratification of his client: Campbell’s Appeal, 5 Casey 401. Nor can he accept land in satisfaction of a debt of his client: Huston v. Mitchell, 14 S. & R. 307; Stackhouse et al. v. O’Hara, 2 Harris 88; Stokely v. Robinson, 10 Casey 315. His authority is limited to the discharge of that professional action which lies at the foundation of the relation of counsel and client. He has large discretionary power as to the manner and time of prosecuting his client’s claim to judgment. He may order and direct the sheriff in regard to the collection of the execution. These powers are given to him to protect the rights and advance the interests of his client. He has no right to release property bound by his client’s judgment. This appears to have been conceded by the learned judge if the record had showed Hammond held the assignment as attorney for Boggs & Kirk. It is true the record did not distinctly show that fact; yet we think it showed enough to have put the appellee on inquiry, and if so, inquiry thereupon became a duty. The exercise of common prudence and ordinary diligence, which he was bound to use, would have disclosed to him that Hammond held the assignment as attorney or counsel for Boggs & Kirk: Lodge v. Simonton, 2 P. & W. 439; Cresson v. Miller, 2 Watts 272; Jaques v. Weeks, 7 Id. 261; Walsh v. Stille, 2 Pars. 17; Hill v. Epley, 7 Casey 331. The release itself cannot be found, but the record entry recites “for value received, E. Hammond, Esq., releases from the lien of this judgment the real estate of Peter S. McCormick, but does not satisfy the judgment or any part thereof; see paper filed.” Thus the record not only shows the assignment to be for the benefit of Boggs & Kirk, but also that Hammond executed the release without any payment on the judgment. A release, by one who held the legal title only, which proclaimed no payment on the judgment, and presumptively no consideration to the use party, should have put the appellee on inquiry. The language oí the record gave sufficient notice of an implied breach of trust to make inquiry a duty. Failing to inquire, he must be affected by the facts which a due investigation would have disclosed. Those facts show Hammond was the attorney of Boggs & Kirk, that this release was a fraud on them; that it was made without their knowledge, and never ratified by them. The learned judge therefore erred in holding that the release, thus executed, discharged the lien.

Decree reversed, and record remitted, with instructions to decree distribution conformably with this opinion. It is further ordered that the appellee pay the costs of this appeal.


author: Mr. Justice Gordon

text:
    Kinsel versus Ramey et al.

    A. devised land to his wife for life, remainder to trustees of B. “ for her only use and benefit * * * and the heirs of her body lawfully begotten,” without imposing duties upon the trustees. Held, that the trust was passive, and that the words “ heirs of the body” were words of limitation determining the character of the estate devised, and were not a mere descriptio personarum, of those who were to take as purchasers after the determination of the trust.
    May 31st 1878.
    Before Agnew, C. J., Gordon, Woodward, and Trunkey, JJ. Sharswood, Mero as and Paxson, JJ., absent.
    Error to the Court of Common Pleas of Blair county: Of May Term 1878, No. 172.
    This was an action of ejectment, brought by Jacob Kinsel against Daniel K. Ramey, John C. Kinsel, Magdalene Burkhart (formerly Kinsel), and her husband, and Rebecca Stiffler (formerly Kinsel), and her husband.
    The facts were as follows:
    George Kunsz, whose will, dated August 18th 1824, was admitted to probate November 17th 1829, was the owner of the lands in dispute. He left to survive him a widow and four children, Jacob, Magdalene, Elizabeth and Anna Maria, married to John Kinsel. His personal property was in part bequeathed to his wife for life, and after her death in equal parts to the children named (Mrs. Kinsel’s share going to trustees, “for her sole use and that of her children”), and in part directly to the children and Mrs. Kinsel’s trustees, the portion held by the latter being again “ in trust for her own sole use and that of her children.” His real estate was devised to his wife for life. “ And after the decease of my wife, in case she survives me, I direct that my plantation on which I live, in Allegheny township, in the county of Huntingdon, aforesaid, containing two hundred and twenty-eight acres, be divided into four equal shares, and appropriated by my executors amongst my four youngest children in the following manner, viz.: The first share or part of my lands I give and bequeath to Christian Gost and Henry Slinglough of Frankstown township, in the county of Huntingdon, and Commonwealth of Pennsylvania, the executors hereinafter named of this my last will and testament, and John Keller, Jr., son of John, of Morris township, in the county of Huntingdon, and Commonwealth of Pennsylvania, in trust for and to the only use and benefit of my daughter, Anna Maria Kinsel, wife of John Kinsel, of Allegheny township, county of Huntingdon, and Commonwealth aforesaid, and the heirs of her body lawfulty begotten, who are to have my dwelling-house, buildings and orchard on her share of the land on which these improvements are, on the north part of the whole tract of land from the sinking run. And provided the said Anna Maria Kinsel lives until one or more of her children arrives at the age of twenty-one years, and she is agreed, I direct that one or more of her sons undertake and perform the trust and duty for their mother, that the said Christian Gost, Henry Slinglough and John Keller are hereby authorized to perform, by this my last will and testament, and the said Christian Gost, Henry Slinglough and John Keller are then to surrender up their trust and settle up their account, if not previously done by them, or the survivor of them, with the Orphans’ Court of the county of Pluntingdon, and be discharged .by the said court from the trust aforesaid. And the said Anna Maria Kinsel is to have her part of the tract of land at the same price as the other parts of the whole tract of land aforesaid, and also a due proportion of timber lands to the same, which land, houses,, buildings and other improvements I bequeath to the said Anna Maria Kinsel under the trust aforesaid, for her own sole use and that of the heirs of her body lawfully begotten, or their assigns for ever.”
    The remainder of the will designated the tract each child should receive, and afterwards, in 1835, lines were run by William Reed, a surveyor, in accordance with the will, and one-fourth of the whole tract was set off to the trustees of Mrs. Kinsel. In 1837, Magdalene (Gripe), Mrs. Kinsel’s sister, conveyed her one-fourth of the tract to Jacob Kinsel, the plaintiff, and a son of Mrs. Kinsel, the purchase-money being derived from the personal property of George Kunsz. “ In trust, nevertheless, for the use of the aforesaid Anna Maria Kinsel, and her children, according to the estate given them, collectively or severally, in and by the bequest of personal property aforesaid, as contained in the last will and testament of the aforesaid George Kunsz, deceased, they, the said Anna Maria Kinsel and her children, to have and to hold the same, estates and interest, in the land hereby conveyed, to which they are entitled to the trust money hereby invested in the said land under and according to the provisions of the last will and testament aforesaid, and special reference is hereby made to said will to ascertain and fix the interests and estates hereby conveyed to the said Jacob Kinsel, in trust for the use of the said Anna Maria Kinsel and her children so far as respects the rights of the said Anna Maria Kinsel and of her children as between themselves.”
    Mrs. Kinsel had four children, Jacob the plaintiff, Magdalene (Burkhart), Rebecca (Stiffler) and John, three of the defendants.
    In 1868 Jacob Avas adjudicated a bankrupt, and his assignee conveyed to Daniel K. Ramey, another defendant, all Jacob’s interest in the lands in suit. In 1876, Mrs. Kinsel died, without having barred the entail created by the avíII, and Jacob thereujoon claimed title as heir in tail to the one-fourth originally surveyed to her in 1835-, and under the deed of 1837, to the undivided one-fifth of the tract conveyed by Madalene Gripe. It Avas conceded, that one undivided fifth part of the latter tract vested in Jacob By the deed, passed to his assignee, and was properly conveyed to Ramey.
    The court (Dean, P. J.) directed a verdict for the plaintiff for the undivided, one-fourth of the undivided one-fifth of the Gripe tract, and for the whole of the other tract, subject to the opinion of the court on the folloAving reserved point of defendants:
    “ That as to the one-fourth of the real estate surveyed off to Anna Maria Kinsel by William Reed, the legal title being devised to trustees for the use of Anna Maria Kinsel, a married woman, and for the heirs of her body, and there being no union of the legal and equitable estate, the rule in Shelley’s case does not apply, and under the will, an equitable life estate in the one-fourth vested in Anna Maria Kinsel, and a legal estate in her children.”
    Judgment Avas subsequently entered for the defendants, non obstante veredicto, upon this point .the court holding that, under the Avill, Mrs. Kinsel’s trastees had no duties to perform in reference to her heirs, and that the estate limited to the latter became at once an executed legal estate under the Statute of Uses or in the language of the opinion :
    “ The trust then to Mrs. Kinsel being active, the use was not executed by the statute, and she had but an equitable estate for life; the trust as to the heirs being passive, the estate in them became, immediately, an executed legal estate, which they took as purchasers.”
    To this judgment the plaintiff took a writ of error, assigning the entry of judgment for the defendants on the reserved point.

      S. S. Blair and S. M. Woodcock, for plaintiff in error. —
    Mrs. Kinsel’s estate was a vested remainder in tail after the life estate of the testator’s widow, and the plaintiff, her oldest son, takes as heir in tail. There is nothing in the will to show that the words “ heirs of her body” are used as synonymous with “ children” or “ heirs” and they must be allowed to have their technical meaning.
    The rule in Shelley’s case has no application here.

      S. M. Baldridge, for Mrs. Stiffler, one of defendants in error.
    —The whole will indicates that the testator intended to use the words “heirs of the body” as synonymous with “children.” The manifest intention overrides technical words.
    October 7th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

This was an action of ejectment instituted for the purpose of settling the title to about one hundred and thirty-five acres of land, formerly the property of George Kunsz, now deceased, and the question on which the case turns grows out of the terms and conditions of his last will and testament. By that instrument, dated August 18th 1824, and probated November 17th 1829, he devised to his wife Magdalene, for life, the farm, containing about two hundred and twenty-eight acres, on which he lived, and directed that, after her death, it should be divided equally among his four youngest children. One of these four parts, containing about sixty-seven acres, he devised to Christian Gost and Henry Sling-lough, “in trust to and for the only use and benefit of my daughter Anna Maria Kinsel, of Allegheny township, county of Hunting-don, and commonwealth aforesaid, and the heirs of her body lawfully begotten, who are to have my dwelling-house, buildings and orchard on her share of the land, on which these improvements are, on the north side of the whole tract of land from the sinking run.” He then provides, that, if she should live until one or more of her sons reaches the age of twenty-one years, the said trust shall devolve upon him or them, and then adds, “And the said Anna Maria is to have her part of the tract of land at the same price as the other parts of the whole tract of land aforesaid, and also a due proportion of timber lands to the same, which lands, houses, buildings and other improvements I bequeath to the said Anna Maria Kinsel, under the trust aforesaid, for her own sole use and that of the heirs of her body lawfully begotten or their assigns for ever.” One other of the parts above mentioned he devises in fee to his daughter, Magdalene Gripe. By the same will certain personal property, or the proceeds thereof, was directed to be passed or paid over to the trustees aforesaid, for the use of Mrs. Kinsel and her children. The money realized from this bequest was invested in the purchase of the land devised, as above-mentioned, to Magdalene Gripe, who, on the 29th of December 1837, executed a deed for the same to Jacob Kinsel, in trust for Anna Maria Kinsel and her children. It seems to be admitted that, as this trust was simple and unconnected with any active duties in the «trustees, it was executed in the beneficiaries as joint tenants or by our statute as tenants in common of the fee. Jacob Kinsel, the plaintiff, being one of the four children of Mrs. Kinsel, took the fee in one-fifth part of the said purchase from Mrs. Gripe. Jacob became bankrupt in 1868, and his assignee, in August of that year conveyed to Daniel K. Ramey, one of the defendants, all his (Jacob’s) interest in the lands now in suit. Afterwards, in May 1876, Anna Maria Kinsel died, leaving the children already mentioned to survive her, and to whom descended the title to her one-fifth part of the Magdalene Gripe tract. Concerning this last-mentioned piece of land we have no dispute over the ruling of. the court below. It is now conceded, and so the instruction was, that the one-fifth, which vested in the plaintiff, by virtue of the Magdalene Gripe deed, in 1837, passed by the assignee’s deed to Ramey, and for that there could be no recovery, whilst for the one-fourth of the one-fifth, which descended to the plaintiff from his mother, after the date of the assignment, a verdict might be had for the plaintiff. The court further directed the jury to return a verdict for the plaintiff for the sixty-seven acres heretofore mentioned as devised in trust for Mrs. Kinsel and the heirs of her body, reserving, however, the question raised by the defendant’s fifth point. That point reads as follows: “ That as to the one-fourth of. the real estate surveyed off to Anna Maria Kinsel, by William Reed, the legal title being devised to trustees for the use of Anna Maria Kinsel, a married woman, and for the heirs of her body, and there being no union of the legal and equitable estate, the rule in Shelley’s case does not apply, and, under the will, an equitable estate in one-fourth vested in Anna Maria Kinsel and a legal estate in her children.” On this point the court finally entered judgment for the defendants, notwithstanding the verdict, holding that the trust as to Mrs. Kinsel was active, and that she had, therefore, but an equitable estate for life, but as to her children, the trust, being passive, was at once executed in them, and they took the legal estate as purchasers. In other words, if we understand the learned judge, the estate vested in the children charged with a use for the mother during life. In order to reach this result we must read “children” for “heirs of her body,” and in this manner raise a trust for the “sole use” of Anna Maria Kinsel and her children, executing it as to her children, but continuing it as to her as an active trust. The serious difficulty with this conclusion is, that it does not result from the language of the will.

From that instrument nothing appears to control or modify the technical meaning of the terms used ; hence the words “ heirs of the body” must be taken as words of limitation determining the character of the estate devised, and not as a mere descriptio person-arum of those who are to take as purchasers after the determination of the trust.

If, indeed, we were to regard the trust for Mrs. Kinsel as active, the case would be different, and the result reached by the court might be regarded as substantially correct. For though the trust could not be held as executed in the children, yet, it must be regarded as executed in the trustees during Mrs. Kinsel’s life, with a contingent remainder over to the heirs of her body, and in such case her eldest son would take, not as heir of his mother, but under the will, as a purchaser.

The will, however, imposes no active duty whatever upon the trustees ; they have nothing to do with the rents, issues and profits of the land, neither do they hold the title for any designated remaindermen ; it is therefore obvious that the case is one falling within the Statute of Uses. Such being the case, we must hold that an estate of inheritance vested in Anna Maria Kinsel which, upon her death, descended to her eldest son, Jacob Kinsel, as her heir at law. From this it follows that as at the time of the assignment in bankruptcy the plaintiff had no title whatever in this property, none passed to his assignee, and so the assignee had nothing therein which he could sell to Ramey.

The judgment is reversed, and it is ordered that judgment be entered on the verdict for the plaintiff.


text:
    Gibson versus Commonwealth.
    1. The Acts of April 3d 1872 and March 24th 1877. do not make a wife a competent witness for her husband in a case where the husband is on trial for a crime.
    2. The provisions of a statute in derogation of the common law are to be construed strictly.
    May 31st 1878.
    Before Ag-new, C. J., Gordon, Woodward and Trunkey, JJ. Sharswood, Mercur and Paxson, JJ., absent.
    Error to the Court of Quarter Sessions of Yorlc county: Of May Term 1878, No. 113.
    Indictment for forgery, containing two counts founded on the 178th section of the Penal Code of 1860, found at July sessions 1876, for falsely and fraudulently forging and counterfeiting a certain promissory note for $1180, purporting to be made by one Hiram Young, payable to the order of Ida Elizabeth Gibson, on the 1st day of April 1877; and for fraudulently making and signing the name of said Hiram Young to a certain promissory note for $1180, purporting to be made and signed by said Hiram Young, payable to the order of Ida Elizabeth Gibson, on the 1st day of April 1877. Plea, Not guilty.
    Young testified that he “ filled up” the note in controversy at the request of Gibson, the defendant, and handed it so filled up to Gibson ; that after this was done Gibson asked him to address an envelope to his wife, Ida Elizabeth Gibson, at Shrewsbury, York county, Pa., Gibson saying that he wanted to sign the note and send it by mail to his wife; that in compliance with this request Young addressed the envelope to Mrs. Gibson and handed that also to defendant; that Gibson then left and he heard nothing more about the note until called upon by the holder for payment. Young also testified that he neither signed the note nor authorized any person to sign it for him. He was contradicted by Gibson, who went upon the witness stand in his own behalf. The defendant also called a number of witnesses, who gave their opinions as to the genuineness of the signature to the note, as did also the prosecutor in support of his allegation as to that fact.
    The defendant also gave evidence of the consideration of the note arising out of business transactions between Young and himself. He also produced the envelope above alluded to, and then called his wife, and offered to prove “ that on or about the 3d day of May 1876, she received at Shrewsbury, York county, by due course of mail, a letter containing the identical note in dispute in this case, to which the name of Hiram Young, the prosecutor in this case, was then affixed in the same manner as the name of the said Hiram Young is affixed to the said note at the time of the submission of this offer.”
    This offer the court, Eisher, P. J., rejected, and after a verdict of guilty the defendant sued out this writ and assigned this action of the court for error.

      James B. Zeigler and W. O. Chapman, for plaintiff in error.—
    Under the Act of April 15th 1869, Pamph. L. 30, in civil cases a wife may be called by her husband as a witness, notwithstanding she may be compelled on cross-examination to give testimony against him : Yeager et al. v. Weaver, 14 P. F. Smith 425; Craig v. Brendel, 19 Id: 153: Ballantine v. White, 27 Id. 20. The Act of 1869 was followed by the Act of April 3d 1872, Pamph. L. 34, entitled “ An Act to extend the competency of persons to be witnesses in certain criminal cases,” and the Act of March 24th 1877, Pamph. L. 45, “to permit defendants to testify in criminal cases.” Taking these three acts together, it was manifestly the intent that no interest nor policy of the law should exclude a party or person from being a witness in any civil proceeding, of on the trial of any misdemeanor or felony, except felonies triable exclusively in the Court of Oyer and Terminer.
    The Act of 1869 left the incompetency of defendants in criminal cases where it was before. They are “parties” in the suit. But the Acts of 1872 and 1877 remove their incompetency and make them witnesses. And if the incompetency of “ parties” be removed, why should incompetency still adhere to other “persons,” not parties ? Manifestly the greatest stretch of the innovation was the admission of “parties” to the proceedings, civil and criminal, to testify in their own behalf. The apparent difficulty in the case is that the Acts of 1872 and 1877 omit the words “or persons,” which are contained in the Act of 1869. . But we contend that the proper construction of the three acts as one, is to incorporate the enabling provisions of the first into each of the others so as to make them co-extensive and to place the husband and wife on the same footing in criminal proceedings in which they are competent to testify, as they are in all civil proceedings. No apparent reason exists for a distinction between civil proceedings and criminal as to the competency of any other “person” after the party himself is allowed to speak.

      George W. McMroy and John Blackford, for the Commonwealth.
    The Acts of 1872 and 1877 do not extend the provisions of the Act of 1869 to witnesses in criminal cases. The Act of 1877 extends a privilege to the person charged with the commission of an offence, at his own request, to testify in his own behalf. By this act the incompetency alone of the accused is removed. He may avail himself of this privilege or not, as he may see fit, and his omission to do so, creates no presumption against him. Whether he be a witness or not, depends entirely upon his own will. It necessarily follows, therefore, that the wife of the accused cannot be a witness unless he so will it. Her right, therefore, to testify, cannot 'be by reason of any legislative enactment, for if the accused remain silent, no one would pretend to argue that the wife of the accused would be a competent witness under the Act of 1877. The Act of 1877 is in derogation of the common law, and must be construed strictly, and it cannot be made therefore to extend a privilege to persons not designated therein.
    June 10th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

The defendant, who was indicted for forgery, was permitted, under the provisions of the Act of April 3d 1872, as extended by the Act of 24th of March 1877, to testify in his own behalf, but his wife, being offered for the same purpose, was adjudged incompetent. In this we can discover no error. It is certain that, before the passage of the above-named acts, neither the defendant nor his wife could have been heard to testify in his defence, and that either is qualified so to dp depends upon the terms of the statute.

“ The person so charged shall, at his own request, but not otherwise, be deemed a competent witness,” is the language of the enactment, and certainly this does not embrace the wife. In order to meet the demand of the plaintiff in error, we are required to interpolate the words, “and his wife” so as to make the act read: “the person so charged and his wife shall, at his own request,” &c. We cannot, however, assent to a proposition of this kind, for the reason that, in so doing, we must pass the bounds of judicial power and trespass upon the domain of legislation.

The language used is not doubtful; it is as plain as it is possible to make it, and contains nothing that is in any degree ambiguous. If, however, we found something therein of ambiguity, we would still be constrained to resolve the question against the defendant, for we must, if we would follow the well and long established rule, construe the statute under consideration with reference to the common law, and provisions in derogation of the common law are to be held strictly.

The judgment is affirmed.

Chief Justice Agnew filed a dissenting opinion.


author: Mr. Justice Sharswood

text:
    Bryant and Euwer versus Hagerty.
    1. A. agreed with B. to manufacture lumber, and to receive in payment therefor a certain proportion of its proceeds, less “ all advances in money or otherwise,” by B. A. subsequently gave an order on B. for “ all money due or to become due to me * * under our contract,” which B. accepted. Held, that the order incorporated the contract by its terms, and that B.’s general acceptance only bound him to pay the balance due A. after deducting advances.

      2. Gillespie v. Mather, 10 Barr 28, followed.
    3. The construction of a written instrument is exclusively the province of the court.
    June 3d 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas of Elk county: Of May Term 1878, No. 153.
    This was an action of assumpsit brought by James H. Hagerty against Walter Bryant and Daniel Euwer, upon their alleged acceptance of a draft or order drawn, upon them by Gilman T. Wheeler. Pleas : non-assumpsit, payment, set-off with leave, &c.
    The facts were as follows: On April 1st 1869, Bryant and Euwer of the first part, made an agreement with Wheeler of the second part, to continue for three years from that date, under which the latter was to manufacture lumber and shingles from the lands, and at the mill, of the former, to deliver the same at the Pittsburgh market, and to perform various other stipulations of no consequence in this case; payments from the proceeds of the lumber and shingles to be made under the following clause:
    “6th. And it is hereby further agreed, that an amount equal to forty per cent, on its market value of all the lumber manufactured from time to time at said mill during the continuance of this agreement, -and estimated or measured as before provided, and also the amount of all advances in money or otherwise made by the parties of the first part to the party of the second part shall be deducted and retained by the parties of the first part from the proceeds of sale of the lumber aforesaid, or of any portion thereof, the balance to be paid and hereby agreed to be paid unto the party of the second part as his consideration in full for the fulfilment of the obligations herein imposed and binding upon him.”
    The agreement was subsequently continued in force until April 1st 1875.
    In September 187 4, a settlement was made between the parties, and Wheeler was found to owe the sum of f1540.79, for advances by Bryant & Euwer, and for lumber and shingles taken by him in excess of his proportion. For this amount he gave his note at nine months.
    On February 22d 1875, Wheeler gave to the plaintiff, J. H. Hagerty, the following draft or order upon the defendants:—
    “Ridgway, February 22d 1875.
    Messrs. Bryant & Euwer :
    Please pay to J. H. Hagerty all moneys due or to come due to me for manufacturing lumber at Mill Creek Mill, Elk county, being sixty per cent, of the amount received for lumber manufactured there to April 1st next; and also all amounts due me for shingles made at said mill to April 1st next, and delivered to you under our contract, being eighty per cent, of the market value in Pittsburgh market.
    G-. T. Wheeler.”
    The testimony was conflicting as to the acceptance of this order; the plaintiff testifying that he presented it to Daniel Euwer in A.pril 1875, in Allegheny city, who declined to accept it until he saw Wheeler, but having seen him, “accepted the order or took it and said it was all satisfactory;” and Daniel Euwer and another witness testifying that the order was not accepted; that Mr. Hagerty was told that Wheeler was in debt to plaintiffs, and they must take care of themselves, but that they were willing to do the best they could for him.
    The plaintiff’s first point, which the court (Wetmore, P. J.), afiirmed, was as follows:—

      The court is respectfully requested to charge the jury :
    “ That the order is express on its face for a definite proportion of the proceeds of the lumber and shingles, to wit: sixty per centum of the proceeds, of lumber, and eighty per centum of the proceeds of shingles; if therefore the jury believe that Daniel Euwer, on behalf of the defendants, did agree to pay the said order, the defendants cannot deduct from the sixty per centum and eighty per 'centum aforesaid any indebtedness of Gf. T. Wheeler to them.”
    The first point of defendants was as follows:
    The court is respectfully requested to charge the jury:
    1. That by the terms of the order it is subject to all the terms of the contract between Bryant & Euwer and Wheeler.
    To which the court answered:
    “ The first point is answered as follows: If Hagerty had no knowledge of the provisions of the contract between Wheeler and Bryant & Euwer, and there was an acceptance to pay according to the per centage stated on the face of the order, then the point is answered in the negative.”
    And their second point was as follows:
    2. By the terms of the contract Bryant & Euwer were not liable to pay Wheeler any amount on delivery of lumber until they had first been paid all that Wheeler might be indebted to them, and the plaintiff can only recover the balance after deducting all such indebtedness of Wheeler at the time of presenting the order.
    Which the court affirmed, “with the qualification stated in answer to the first point.”
    The court also said, inter alia, in the general charge: * * * “Mr. Hagerty, on the one side, Daniel Euwer and Anthony Euwer on the other, differ a little in relation to the terms or to what was said and agreed to in relation to that order. Now you want to look at the relations of Bryant & Euwer to Wheeler, and the circumstances of the account to him. There was an indebtedness of $1540; would they, under the circumstances, accept an order unconditionally and promise to pay to Hagerty sixty per cent, of the lumber and eighty per cent, of the shingles, or would they not? On the other hand, Hagerty was there, and seemed to be an active business man; would he take an unconditional and unqualified acceptance? [The testimony is that they said it was satisfactory. Now, what is the fair construction of that language ? Did it mean that sixty per cent, of the lumber and eighty per cent, of the shingles should be paid unconditionally, and without regard to the accounts between Bryant & Euwer and Wheeler; or did it mean that having seen Wheeler, and the order was correct that they would pay according to the terms of the contract?] * * * * [Now the case is substantially a question of fact for you. As we have said, when Hagerty presented that order, and having seen Wheeler and they said it was satisfactory, and you believe from the evidence that it was an unqualified and unconditional acceptance to pay to Hagerty eighty per cent, upon the shingles and sixty per cent, upon the lumber, then he would be entitled to recover, without regard to the account, the balance, $834.72, with interest. If, on the other hand, at the time of the interview between Hagerty and Euwer, on behalf of Bryant & Euwer, that it was stated by the defendants that they could not accept it unconditionally, that they would do the best they could and apply the hemlock that they received from Wheeler upon Wheeler’s indebtedness, and they would pay the balance; if that was the nature of the transaction between the parties, then the plaintiff would be entitled to the balance after deducting the indebtedness from Wheeler to Bryant & Euwer, $202.22, with interest.”]
    ■Defendants excepted to the answers, to the points and to the charge. Verdict for plaintiff for $884.80, and judgment thereon, to which defendants took this writ, assigning for error the answers to the points and those portions of the charge enclosed in brackets.

      George A. Jenks and George A. Hathbun, for plaintiffs in error.
    The order is only for what is due or to become due “under our contract.” This language incorporates the contract in the order: 2 Pars. Cont. 502 — 3, note x. The order is not negotiable and only operates as an equitable assignment of the amount due Wheeler under the contract. The case is ruled by Gillespie v. Mather, 10 Barr 28, 31. The acceptance, being verbal, was void by the Statute of Frauds, for all in excess of what plaintiffs in error owed Wheeler.

      Sall M’Qauley, for defendant in error.
    The amount plaintiffs in error agreed to pay was for the jury, who have found in favor of Hagerty. As to the Statute of Frauds: King v. Kelley, 1 P. F. Smith 40; Dull v. Bricker, 26 Id. 260.
    June 10th 1878.
   Mr. Justice Sharswood

delivered the opinion ‘ of the court,

Bryant & Euwer, the defendants below, had a contract in writing with Wheeler, by which the latter agreed to stock and run in the manufacture of lumber a saw-mill of Bryant & Euwer, on lands belonging to them in Elk county, to run and deliver the lumber to market at his cost, expense and risk. Bryant & Euwer were to have forty per cent of the market value of the lumber and twenty per cent, of the shingles, and deducting also “all advances in money or otherwise” made by them from the proceeds, the balance was to be paid to Wheeler as “his consideration in full for the fulfilment of the obligations imposed upon him.”

Wheeler drew the draft in suit upon Bryant & Euwer in favor of the plaintiff below, and the evidence was that they verbally accepted it. At that time Wheeler was indebted to them for advances previously made. The order or draft was to “pay J. H. Hagerty all moneys due or to come due to me for manufacturing lumber, being sixty per cent.” of the lumber, and “all amounts due me for shingles delivered to you under our contract, being eighty per cent, of the market value.” It will be seen that it referred expressly to the contract, and in effect incorporated it with the draft. It is clear that it was only for the amount due upon the contract, and that was all which the defendants, by their acceptance, undertook to pay the plaintiff. Whether Hagerty knew of the terms of the contract or not he had notice of it, and took the acceptance subject to its terms. The recital of the per centage of the lumber and shingles to which the drawer was entitled did not change the material stipulation that such amount was to be subject to deduction for advances. In that respect the case does not differ from the terms of the draft in Gillespie v. Mather, 10 Barr 28, which were, “ When in funds from the sale of produce in your hands.” It was said by Mr. Justice Bell, in the opinion of the court in that case: “The phrase ‘when in funds,’ as here used, is equivalent to ‘when in debt to the drawer,’ -which, by reason of the factor’s right of appropriation, cannot be while the principal is indebted to the factor. In entering upon such an engagement as this, it cannot be supposed the latter intended to pay the debts of others in preference to his own. This would be in the teeth of the general course of business, and, therefore, a construction not to be adopted, except under the coercion of plain manifestation, which has no existence here.” In the case now before us it is not necessary to resort to construction to reach this result, for the order is express to pay “all money due or to come due to me,” which words are synonymous with “ when in debt to the drawer.”

It follows, then, that the defendants below were entitled to an unqualified affirmance of their first and second points. In the answer to the second point the learned court below appeared to think that the' question of the defendants’ liability for the full amount of the per centage depended upon the plaintiff’s actual knowledge of the provisions of the contract between the drawer and acceptors, instructing the jury in effect that if he had no knowledge — and the acceptance was general — it was not subject to deduction for the advances. But the draft on its face gave notice of the existence of the contract, and he clearly was bound to inquire as. to its terms. The defendants could not be made liable beyond the terms of their written engagement by the acceptance of the draft, without evidence to vary it, which we do not see on the record. It follows also that the court committed an error in affirming the first point of the plaintiff, and in leaving it to the jury to decide whether the defendants, by saying that the draft was satisfactory, meant “ that sixty per cent, of the lumber and eighty per cent, of the shingles should be paid unconditionally and without regard to the accounts between Bryant & Euwer and Wheeler; or did it mean that having seen Wheeler and the order was correct that they would pay according to the terms of the contract.” This was submitting to the jury the construction of a written instrument which is exclusively the province of the court.

Judgment reversed, and a venire facias de novo awarded.


author: Per Curiam.

text:
    Davis versus King.
    If taxes be assessed upon lands held in common and there is a treasurer’s sale thereof, one tenant cannot purchase the entire property at said sale so as to acquire such adverse title as will deprive his co-tenant of his interest therein.
    June 4th 1878.
    Before Asnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas of Warren county: Of May Term 1878, No. 128.
    Trespass quare clausum fregit for cutting and carrying away timber, by A. J. Davis against Wesley King. Previous to 1855, C. B. Curtis and JohnN. Miles, by deed from A. & E. Huidekoper, were tenants in common of 100 acres of unseated land in Warren county. In 1855 Miles died, unmarried, without issue, and leaving to survive him a father (living at the time this suit was brought), one brother and three sisters, all adults. In 1860 and in 1862 the land was sold at treasurer’s sale for the non-payment of taxes. Robert Miles, the father, and the administrator of John N. Miles, and Curtis separately redeemed, each for himself, the undivided one-half of the land from the sales of 1860 and 1862.
    In 1864 Curtis paid the unseated taxes then due on the undivided half of the land, and the other half was sold by the treasurer to one R. K. Russell, who assigned his deed to the plaintiff, A. J. Davis, after the time of redemption had expired.
    In 1868 the entire 100 acres were sold to the plaintiff, Davis, for the unseated taxes of 1866 and 1867. The land was not redeemed from the sale of 1868, and by virtue of the treasurer’s sale and deed made in 1868, the plaintiff claims the whole 100 acres.
    The defendant claimed under Curtis, by - conveyance made in 1875, prior to which Curtis had procured from one of the sisters of John N. Miles, an assignment of whatever right she had in the land, Curtis’s conveyance to defendant being the undivided one-half and the undivided one-eighth of the 100 acres. The amount of timber cut by defendant did not exceed $5 in value — the question being one of right to the land.
    Did the plaintiff, Davis, sustain such a relation to Curtis at the time of his purchase of the land at treasurer’s sale of 1868, as prevented him from acquiring title to the 100 acres by that purchase ? was the question in the case, and was presented to the court in the following points of the plaintiff, to which are appended the answers of the court, Galbraith, P. J.:
    1st. That the assessments, sale and treasurer’s deed to the plaintiff, dated June 8th 1868, vested in him a perfect title to the land in controversy, whether the plaintiff was or was not a tenant in common or joint owner with Curtis’s, defendant’s, vendor at the time of the treasurer’s sale.
    Ans. “ This point is refused. It is admitted that the plaintiff was jointly interested in the tract in question as co-heir with the defendant, and that his claim to exclusive ownership rests upon a purchase made by him at treasurer’s sale while standing in such relation to the defendant. Under a well-settled rule of law he could not acquire such adverse title by the purchase of the entire property, thus taking it from under his co-tenant, and we do not see anything in the legislation referred to that will vary the general rule or take this case out of the operations of the principle referred to.
    2d. That under the uncontroverted facts in evidence the plaintiff is entitled to recover.
    Ans. “ This point is refused. Under our views of the law the verdict of the jury must be for the defendant.”
    Verdict accordingly, when the plaintiff took this writ, assigning for error the answers to his points and the direction to find for defendant.

      William B. Brown, for plaintiff in error.
    The general rule that tenants in common are not permitted to acquire an interest in property hostile to each other, is predicated upon cases where they claim under the same deed, or the same ancestor, or through the same will; but here the plaintiff claims adversely to the title of both Curtis and John N. Miles. The undivided half of the land was the debtor to one-half of the taxes remaining unpaid at the treasurer’s sale of 1864. That sale vested in Davis the undivided half of the land. After that sale Curtis and Davis held each the undivided half, not by the same, but by diverse titles. The case is not within the reason of the general rule. While it is not disputed that a community of interest produces .a community of duty, it is submitted that the Act of April 25th 1850, and March 9th 1847, exempt tenants in common of unseated lands from all duty or obligation to their co-tenants, so far as the payment of taxes are concerned.

      Q. B. Curtis and S. P. Johnson for defendant in error.—
    It is admitted in the argument of the attorney for plaintiff in error that joint tenants, copartners and tenants in common, stand in such confidential relation to each other, that one is not permitted to acquire title outstanding by purchase. This rule is, however, claimed to exist only between tenants deriving their title from the same deed or a common ancestor. In this view of the law the counsel is not sustained by the authorities, the rule being that where there is a “community of interest there is a community of duty:” Weaver v. Wible, 1 Casey 270; Lloyd v. Lynch, 4 Id. 419; Keller v. Auble, 8 P. F. Smith 410; Dickey’s Appeal, 23 Id. 247 ; Duff v. Wilson, 22 Id. 442; Lacy v. Hall, 1 Wright 366.
    It is submitted that the Act of 1850 or 1847 in no way changes the rule as established governing tenants in common, when both parties are delinquent in payment of their just taxes, so that one of them can thereby deprive his co-tenant of his part of the land held by them in common. In all cases of the like kind the purchaser is still trustee for his co-tenant, and can only hold the title as security for the taxes and costs which he has advanced, as is settled in the case of Duff v. Wilson, 22 P. F. Smith 347.
    June 10th 1878,
   The judgment of the Supreme Court was entered

Per Curiam.

In this case the purchaser at the treasurer’s sale for taxes, failed to pay the taxes on his own undivided half as former owner, and tenant in common with the owner of the other undivided half. He was therefore in equal default with his co-tenant. Under these circumstances, we~think his purchase at the treasurer’s sale of the whole tract, is governed by the former decisions of this court, holding that joint-tenants or tenants in common, stand in a confidential relation to each other, such as forbids either from purchasing an adverse title over the head of the other. We are not prepared to say how the case would be if, availing himself of his right under the Act of Assembly to sever in the payment of taxes, he had paid his own, and the undivided half of his co-tenant only had been sold by reason of his own default. Judgment affirmed.


author: Mr. Justice Woodward

text:
    Wallace & Krebs versus Wainwright & Co.
    1. A. being largely indebted, executed to B., an attorney for some of his creditors, an assignment of numerous claims and judgments “in payment” of their demands. Held, to be an assignment for the benefit of creditors, and, not having been recorded within thirty days, to be void as against a subsequent attaching-creditor.
    2. A trust exists where the legal interest is in one person and the equitable interest in another.
    3. The cases upon irregular assignments discussed by Woodward, J.

      June 5th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas of Qlearfield county: Of May Term 1878, No. 112.
    This was a feigned issue tried upon the plea of payment, to determine the right to certain claims and judgments originally the property of John Irvin and of John Irvin & Brothers.'
    The following facts appeared: John Irvin and John Irvin & Brothers were lumber dealers, in Clearfield county, and in June 1877, were largely in debt. Wallace & Krebs, a firm of attorneys at Clearfield, represented a considerable number of creditors and were endeavoring to collect their claims. Upon June 19th, the following instrument of writing was executed and delivered to them by John Irvin and by John Irvin & Brothers:
    Curwensville, Pa., June 20, 1877.
    “Whereas, John Irvin & Bros, are indebted to and owing R. F. Fullerton, George R. Price, Samuel C. Snyder, A. McGarvey, Wm. M. Cathcart, Horace Patchin, E. J. Molke, John B. Rafferty’s estate, Daniel Hartsock, Wm. Lawhead, Bigler, Young & Reed, Joseph Bailey, Rachael Hartshorn, Brown, Roth & Jenks, Robert Mehaffey, John Porter, Jos. Patterson, John G. Lytle, George F. Wardle, C. H. Garden & Co., Oresswell, Lalanne & Co., Grabill & Co., A. Gates, S. J. Gates, Jackson McAbee, Snyder, Harris, Bassett & Co. (Book acc’t), Taylor & Taylor, Reese, Owens & Co., Fitler & Co., certain sums not now definitely ascertained;
    And whereas, John Irvin & Bros, are unable to satisfy the above-named creditors by a payment in full of their several demands in money;
    Now, June 20, 1877, for value received we hereby assign, trans-in payment
    fer and set over to Wallace & Krebs, in trust- of the above named creditors, the judgments and claims as per annexed schedule, all the right, title and interest of us, the undersigned members of the firm of John Irvin & Bros., and of John Irvin individually.
    John Irvin & Bros.,
    John Irvin.”
    To this instrument on June 20th was attached a schedule of the judgments and claims assigned. The words “ in trust” were originally written in the body of the instrument by the scrivener, but erased by him at the request of Mr. Krebs before execution, and the words “ in payment” substituted. Some of the creditors named in the instrument were neither present nor represented. Some assented subsequently to the arrangement, and some neither assented nor refused to assent. On June 23d, Wainwright & Co. entered a judgment against John Irvin, Jared Irvin and'James A. Irvin, the two latter being the “ brothers of John Irvin & Brothers, and upon the same day issued an attachment-execution and attached the claims and judgments which had been assigned to Wallace & Krebs. The assignment was filed in the prothonotary’s office on June 23d at the record of the attachment-execution, but was never recorded in the recorder’s office. This issue was thereupon framed between Wainwright & Co., plaintiffs, and Wallace & Krebs, defendants, “to'test the right of ownership in said judgments,” and on the trial in November the foregoing facts appeared.
    The court, Mayer, P. J., directed the jury to find for the plaintiffs, and reserved the following question of law : “ whether or not the writing dated 20th of June 1877, executed and delivered by Irvin & Bros, and John Irvin to Wallace & Krebs, was an assignment in trust for the benefit of creditors.”
    On January 16th 1878 the court delivered the following opinion, entering judgment on the verdict:
    “On the trial of this cause we instructed the jury to find a verdict for the plaintiffs, subject to the opinion of the court on the ■ question of law reserved, whether the writing dated June 20th 1877, executed and delivered by Irvin & Brothers and John Irvin to Wallace & Krebs, was an assignment in trust for creditors. Being of opinion that this assignment constitutes an assignment in trust for the benefit of creditors, coming within the provisions of the Act of Assembly, and not having been recorded in the county within thirty days after the execution thereof, it is null and void as against the creditors of the assignors, and that the attachment of the plaintiffs must prevail. We, therefore, enter judgment in favor of the plaintiffs upon the verdict.”
    The defendants thereupon took this writ, assigning for error the charge of the court in directing a verdict for plaintiffs, and the entry of judgment in favor of plaintiffs upon the reserved point.

      Wallace, § Krebs, p. p.

    The instrument of 20th June was a direct payment to the creditors named. The plaintiffs in error were not trustees, except as they were attorneys, and refused to receive the assignment as a trust. The assignment, therefore, was to the creditors themselves, and is not within the act regulating assignments for the benefit of creditors.: Englebert v. Blanjot, 2 Whart. 240; Chaffees v. Risk, 12 Harris 433; Henderson’s Appeal, 7 Casey 504. To affirm this judgment would be to hamper an attorney in the discharge of his duty and destroy his efficiency in a case that called for sudden action.

      Frank Fielding and J. B. MeFnally, for defendants in error.—
    A trust is where the legal estate is in one person and the equitable interest in another: Chaffees v. Risk, 12 Harris 432, and this was therefore clearly a trust for creditors. That it was said to be “ in payment” is of no consequence so long as that was not the legal effect of the act: Miners’ Nat. Bank’s Appeal, 7 P. F. Smith 193 ; Dreisbach v. Becker, 10 Casey 153 ; Murphy’s Assignment, 2 Pitts. R. 271.
    The assignment, therefore, was void because not recorded within thirty days.
    October 21st 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

On the 20th of June 1877, an instrument was executed by John Irvin & Brothers and John Irvin individually, in order to secure certain designated creditors, some thirty in number, who held claims against the firm. After reciting an indebtedness in sums not definitely ascertained, and the inability of the firm to satisfy the creditors by a payment in money, the instrument contained this concluding clause: “For value received, we hereby assign, transfer and set over to Wallace & Krebs, in payment of the above-named creditors, the judgments and claims as per annexed schedule, all the right, title and interest of us, the undersigned members of the firm of John Irvin & Brothers and of John Irvin individually.” A schedule of the judgments and claims was attached to this assignment. Some of the creditors named in the instrument were present and assented to the arrangement, some were represented by Messrs. Wallace & Krebs as counsel, and some were neither present nor represented. Wainwright & Co., the plaintiffs below, held a judgment against Irvin & Brothers, upon which they issued this attachment, the defendants in the judgments and claims assigned being served as garnishees. At the trial in the Common Pleas, the question as to the character of the paper executed by the Irvins was reserved, and the jury were instructed to render a verdict for the plaintiffs. Upon the ground that the instrument constituted an assignment for the benefit of creditors, and, as such, that it had not been recorded within thirty days, the court afterwards entered judgment on the verdict. This is alleged to have been error.

None of the Acts of Assembly relating to assignments for the benefit of creditors have required that they should be drawn in any specific form. Such instruments were well known and in common use when the Act of the 24th March 1818 was passed. And neither before nor after its passage was any particular collocation of words held necessary to give to a writing the effect of an assignment. Since 1818 property transferred to one person to be employed, paid over or converted for the benefit of others, has been regarded as property held in trust within the operation of the statutes. “ Of course,” Chief Justice Lowrie said, in Fallon’s Appeal, 6 Wright 235, “the courts cannot allow the law to be evaded by any sham departure from the general form of assignments; and when the transaction is substantially an assignment for the benefit of creditors, involving no other important purpose that would be prejudiced by bringing it under the Act of 1818 (now 1886), the substance rather than the form must be regarded.” Judge Lewis, in Chaffees v. Risk, 12 Harris 432, defined a trust as existing “ where the legal estate is in one person, and the equitable interest in another.” In Watson v. Bagaley, 2 Jones 164, a letter of attorney authorizing the collection and receipt of moneys, debts and goods, and the payment of the proceeds to creditors in a prescribed order of preference, although revocable before the execution of the power, Avas held to be, after execution, virtually an assignment for the benefit of creditors; and as such, Chief Justice Gibson said, “ it was decisively within the purview of the statutes to regulate such transfers; else those statutes might be evaded, and the pernicious power to prefer be retained by changing the form of the instrument.” But it has been urged that the assignment to Messrs. Wallace & Krebs was “in payment” of the creditors, and not in trust for them. Still, the legal title to the securities became vested in the assignees, and the equitable interest was all that the creditors acquired. By the Act of the 16th Of April 1849, it Avas declared that a condition in an assignment for the payment of such creditors only as should execute a release, should be deemed a preference and be void. The stipulation here that the securities transferred should’ be “in payment” of the debts owing by Irvin & Brothers (if the word “ payment” was used in the sense of satisfaction), was but the equivalent of a condition for payment upon release. It could not be knoAvn whether the amount to be realized would satisfy the indebtedness or not. Some of the creditors were not represented, and their right to participate in the fund Avould be dependent on their consent to take such share of it as would come to them in discharge of their demands. The Act of 1849, as well as the Act of the 17th of April 1843, applied to assignments of property made by debtors to trustees “on account of inability at the time to pay their debts.” This instrument expressly recited the firm of Irvin & Brothers to be in just that condition. They were unable to pay their debts; they assigned to third persons securities to a large amount to be held and collected for a portion of their creditors, and they stipulated that the creditors thus benefited should receive the proceeds of the securities “in payment” of their claims. It is impossible to see hoAV this can be treated otherwise than as an assignment for the benefit of the creditors designated, and an assignment too by which those creditors Avere preferred. If the language of the instrument were to be construed as providing for a payment on account of, and not in full for the demands of the creditors, its effect Avould only be altered to the extent that the condition for a release would not be implied.

In principle, this case is not distinguishable from that of the Miners’ National Bank’s Appeal, 7 P. F. Smith 193. In apparent features, indeed, the difference consists in the fact that the whole object of the transaction was expressed in that case with stated results precisely the same as those which the legal operation of this assignment would work out. Charles Miller assigned twenty-one items of property to William Miller and Morris Patterson, in trust, to sell at their discretion, and apply the proceeds to the payment of twenty-four named creditors, the surplus, if any, being payable to the assignor; but it was provided that if the proceeds should not pay the creditors in full, it should be disbursed among them pro rata. Upon these facts the present Chief Justice said: “ when a man can no longer go on in business, and what he has must pass into the liquidation of his debts, fairness requires that he should not dictate the course his property shall take. The Act of the 17th April 1843, is entitled ‘ an act to prevent preferences in assignments,’ and it is argued from the title that its intention was only to forbid preferences expressed in the deed itself. But this is contrary to the public sentiment which led to the proposal of the act, and to the plain intent found upon its face. It would enable the debtor always to prefer creditors simply by framing his deed to suit his purpose. He has thus to name only those he would prefer, and leave others out; and indeed, under that construction of the law, I see nothing to prevent his multiplying his deeds, and thereby to divide his estate and graduate his preferences.” The opinion went on to prove that the Acts of 1843 and 1849, were intended to secure a distribution of the property transferred among the whole body of the creditors of the assignor, where the assignment, whether general or partial, should be made in anticipation of impending failure. The whole reasoning of the Chief Justice, as well as the views expressed by Judge Brewster in his lucid and thorough discussion of the same case, apply here with direct and peculiar force.

Numerous authorities have been referred to and relied on by the counsel for the defendants. They have been examined and considered, and none of them have been found to support the allegation of error in this judgment. Chaffees v. Risk, 12 Harris 432, was the case of an assignment made directly to the creditors of the assignor. Judge Lewis said that by such an assignment “ the legal estate and the equitable interest are vested in one and the same person.” Henderson’s Appeal, 7 Casey 502, was also the case of an assignment of a number of claims in the hands of an attorney made directly to the persons beneficially interested. The claims were described by reference to a list which H. L. Richmond held. On the margin of this list, after the execution of the assignment, there was written: “I assign to H. L. Richmond this list of accounts for the uses named in his receipt to me of this dateand this was signed by the assignor. In the discussion by this court of the effect of these instruments, it was said: “The defendants insist that the debt of Townley, and all the debts in the list alluded to, did not pass under the assignment we have been considering; but was intended to pass under an assignment made the same day by Osborn to Richmond, in trust for the benefit of the New York creditors; and that this assignment was clearly within the Act of 1818, and therefore, not being recorded, was void as against a subsequently attaching creditor. This conclusion is inevitable if the premises are well assumed.” The two instruments, however, were held to constitute together one transfer, and the paper given to Richmond was treated as designed to pass over the “list” of the accounts to him as the attorney of the New York creditors, to whom the accounts contained in that list had been formally assigned. There was thus an express declaration by this court that if the case stood on the assignment to Richmond alone, it would have been within the Act of 1818. In the York County Bank v. Carter, 2 Wright 446, partners who were heavily indebted transferred their entire property to a creditor in consideration of his satisfaction of his claim against them, and his agreement to pay the balance of the purchase-money in discharge of the debts of certain other specified creditors. It was held that the papers imported a sale, and not the creation of a trust for creditors, and that, though it might have been shown by parol evidence that such a trust was intended, it was a question of fact for the jury, and not of law for the court. The facts in Fallon’s Appeal, 6 Wright 235, showed a sale through the intervention of trustees, with a security analogous to a mortgage for the purchase-money, and not an assignment for the benefit of creditors. All that Vallance v. The Miners’ Life Insurance Co., 6 Wright 441, settled was that an assignment or transfer of property made directly to the creditors beneficially interested in it, whether in satisfaction of or as a security for their debts, was not within the Act of 1818. Of the three instruments set up to establish a trust for creditors in Beans v. Bullitt, 7 P. F. Smith 221, the first was decided to be a mortgage, the second a power of attorney, and the third an absolute transfer directly to sixteen creditors, and in neither of them was any trust intended or expressed. In Taylor v. Cornelius, 10 P. F. Smith 187, a debtor conveyed all his real estate to a creditor, who at the same time made a declaration of trust that he would sell all or part of the property, apply the proceeds in payment of the debts due himself and such sums as he should advance, and $5000 for his commissions, and convey the remaining property to the debtor. Of course these instruments were treated together as constituting a mortgage. In Claflin v. Maglaughlin, 15 P. F. Smith 492, choses in action were assigned directly to creditors, and the instrument transferring them contained a direction to the attorney who had the claims in his hands for collection to pay the proceeds to the assignees. This, it was decided, was not an assignment required to be recorded under the Act of 1818. It may be remarked, in passing, that the president of the Common Pleas, in his opinion in Claflin v. Maglaughlin, omitted, in referring to Henderson’s Appeal, to state the essential fact that the ruling in that case rested on the assignment of the securities to the creditors themselves, and not on the transfer of the list of them to Mr. Richmond.

It is to be kept in mind that Messrs. Wallace & Krebs had no beneficial interest whatever in the claims assigned to them. They were neither creditors nor purchasers; they had made no advances, and they had no lien. Under the facts presented, it is not believed that there is any precedent to warrant an interference by this court with the record made up in the Common Pleas.

Judgment affirmed.

Sharswood and Paxson, JJ., dissent.