text:
    Bainbridge’s Appeal.
    A testator directed his executor to sell all his property and to pay the interest thereof to his mother during her life; after her death he bequeathed certain legacies, and all the residue of his property he directed his executor, ‘‘ to appropriate and use for and in the erection and construction of a suitable monument at my grave, such as the amount of funds in his hands will warrant.” Held, that testator’s mother having died and his legacies being paid, his executor had a right to apply all or any part of the testator’s estate remaining in his hands which he saw proper, to the erection of a monument at the grave.
    March 24th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Orphans’ Court of Montgomery county: Of January Term 1881. No. 235.
    This was an appeal by Henry Bainbridge from the decree of the said court making distribution of the estate of William M. Bainbridge, deceased. The facts of the case were as follows: William M. Bainbridge, an unmarried man, died at his residence, in Norristown, Montgomery county, June 11th 1869, leaving to survive him three brothers'(of whom the appellant is one) and three sisters, having made his last will, dated June 1st 1869, wherein he directed that all his estate, real and personal, should be sold by his executor, the interest of the proceeds to bo paid half yearly to his mother during her life, and after her death he directed as follows, viz.:
    “ I give and bequeath to Norristown Encampment, No. 37, of the Independent Order of Odd Fellows, the sum of One Hundred Dollars.
    “ I give and bequeath to Curtis Lodge, No. 239, of the Independent Order of Odd Fellows, the sum of One Hundred Dollars.
    “ I give and bequeath to my nephew, William Tustin, the sum of Twenty-five dollars.
    “ I give and bequeath to my nephew, William Fulmer, the sum of Twenty-five Dollars.
    “And all the rest, residue and remainder of my estate, after the decease of my said mother, and the payment of said bequests, I direct my said executor to appropriate and use for and in the erection and construction of a suitable monument at my grave, such as the amount of funds in his hands will warrant.
    “ I wish and desire to be buried in Montgomery Cemetery, and that Curtis Lodge, of the Independent Order of Odd Fellows, shall have the charge and management of my funeral, and have my remains interred in their burial lot, or in some burial lot, to be purchased near thereto.
    “ I hereby nominate, constitute and appoint my friend, George W. Calhoun, of Norristown, to be executor of this, my last will and testament.
    “ In witness whereof,” &c.
    The testator’s mother died in April 1880, and shortly afterwards the testator’s executor filed his account, showing a balance for distribution of §1118.43. The only disputed question before the auditor, to whom the account was referred, was as to the distribution of the residue of the testator’s estate after payment of the pecuniary legacies. The auditor reported on this question as follows :
    “ In the opinion of the auditor that portion of the will before cited ought to be construed to mean that a reasonable sum of the balance of the estate ought to be appropriated in the erection and construction of a monument over the grave of the testator, and not the entire estate. If the intention of the testator had been that the entire estate should be appropriated in the erection of a monument, he would not have added the words “ such as the amount of funds in his hands will warrant.” It being the opinion of the auditor that only a reasonable amount of the estate should be appropriated to the erection of a monument, the question arises, what is the proper amount that ought to be expended in the erection of a monument ? After a careful examination of the evidence on that point, and which is hereunto annexed, your auditor is of the opinion that the sum of three hundred dollars is a suitable amount, such as is warranted by the amount of the funds in the hands of the executor.”
    The auditor awarded the remainder of the estate to the testator’s brothers and sisters in equal shares of $84.57.
    Exceptions to the auditor’s report were filed by both the heirs and the executor, upon the argument of which a draft of a monument as proposed by the executor, the cost of which was estimated at $715, was submitted to the court and attached to the report. The court, in an opinion by Ross, P. J., held that the only limitation upon the cost of such a monument as the executor deemed to be suitable, was the amount of funds remaining in his hands; and entered a decree awarding the sum of $715 to the executor for the erection of such a monument; and the court distributed the surplus remaining ($92.42) among the testator’s brothers and sisters in equal shares of $15.40.
    Henry Bainbridge, one of the brothers of the testator, took this appeal, assigning for error the interpretation by the court of the will of the testator, and the decree of $715 to the executor for monumental purposes.

      Greorge W. Rogers, for the appellant.
    The selection of a monument was not left by the testator in the unrestrained discretion of the executor, but was limited to such as should be “suitable,” and “such as the amount of funds in his hands will warrant.” A chancellor will control a trustee so that he shall not disregard the intent of the donor as gathered from the instrument containing the power: Williams’s Appeal, 23 P. F. Smith 249. The decedent was an humble mechanic, and directed a suitable monument, that is, suitable to his condition in life. The whole residue of his estate was not to be expended, or he would not have used the further limiting words “ such as the amount of funds in his hands will warrant.” The auditor allowed $300, and the court below also thought that adequate, but felt constrained, by their mistaken interpretation of the will, to permit the whole or any part of the residue to be used, in the discretion of the executor. The-law does not favor the squandering of an estate in ostentatious funeral or monumental displays at the expense of the next of kin: Barklay’s Estate, 33 Leg. Int. 108; McKinny’s Estate, 1 Leg. Graz. Rep. 12; Flintham’s Appeal, 11 S. & R. 16; McGlinsey’s Appeal, 14 Id. 64; Bradley’s Estate, 32 Leg. Int. 257.

      Theodore W. Bean, for the appellee.
    The testator appropriated “all the rest, residue and remainder of his estate” for tb^ erection of a suitable monument, such as the amount of funds in his executor’s hands would warrant. There was no bequest over. He had devoted the income from his entire estate to the support of his mother during her life, and had made pecuniary bequests to relations and lodges of Odd Fellows. It was his right to do as he pleased with his own, and if the court below had sustained the exceptions of the'appellees, it would have made a new will instead of enforcing that which the testator saw fit to make.
   Mr. Justice Mercur

delivered the opinion of the court May 2d 1881.

This contention arises under the will of one who died unmarried and without issue. He appears to have thought he had a right to make such a disposition of his estate as he saw proper, provided he did not violate any principle of public policy, religion, or morality, nor infringe on any statute. Whether he knew Blackstone had defined a will to be “ the legal declaration of a man’s intention which he wills to be performed after his death ” we are not informed. Nevertheless he did execute a last will and testament, in due form of law. After the payment of his debts and funeral expenses, he directed that all his estate be converted into money, and invested in good first mortgage security, the interest thereof to he paid half yearly to his mother during her natural life. After her death he bequeathed one hundred dollars to Norris-town Encampment No. 37 of the Independent Order of Odd Fellows, and a like sum to Curtis Lodge No. 239 of the same order. Also the sum of twenty-five dollars to each of two of his nephews named. Then “all the rest, residue, and remainder of my estate, after the decease of my said mother, and the payment of said bequests, I direct my said executor to appropriate and use for and in the erection and construction of a suitable monument at my grave, such as the amount of funds in his hands will warrant.”

In the exercise of this power, the executor selected a monument which cost seven hundred and fifteen dollars, being about ninety dollars less than the residuary estate. The court sustained him in so doing. This presents the ground of complaint. It is contended the language of the will does not justify the expenditure of so large a sum. It is claimed to be more than “ the amount of funds in his hands will warrant. This is an attempt to give undue weight to that clause and make it paramount to the previous clause appropriating the whole fund. It should be construed in connection with, and subordinate to, the former clause. He had therein directed his executor to appropriate and use “ all the rest, residue' and remainder ” of his estate for the purpose named. The whole fund was “in his hands” for that purpose. The last clause was not intended to take from him the right to so use the whole fund. The word “ suitable ” manifestly related to the form and style of the monument, which was left to the discretion of tüe executor, with the cautionary direction to have due regard to the amount of the funds. There is absolutely nothing indicating he may not use the whole fund. There is no devise over of any part thereof. The reason therefor evidently is that he expected all of it would be expended for the specific purpose named. Why then shall not due ¿ffect be given to an intention so clearly expressed ? May not 'the testator have said to the appellant as the good man of the house said to the laborer, is it not lawful for me to do what I will with mine own ? ”

We will not consider the wisdom or the folly of this disposition. He had a right to make it. He did make it, according to the forms of law. 'He gave the fund and clearly expressed his intention as to its use. We see no cause to set at naught his will or to impair its force. The executor made his election under it. The court confirmed his action. The appellant has no just ground of complaint.

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

Sharswood, C. J., dissented.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Leidy versus Proctor.

      1. A purchaser of land at sheriff’s sale upon receipt of his deed, is vested with the right of possession as well as the right of property, and he may lawfully enter immediately, provided he does so peaceably.
    2. The Act of June 16th 1836, which provides for a three months’ notice and a summary proceeding before two justices, does not abridge but is in addition to the right of the purchaser to take peaceable possession, or to bring ejectment.
    3. A purchaser at sheriff’s sale who gave three months’ notice under the Act of 1836, and afterwards, within the three months, entered against the consent of the former owner who remained in possession, but without violence, is not liable as a trespasser in an action brought by the former owner.
    4. Timber which had fallen at the date of the delivery of the sheriff’s deed, but had not been converted into saw-logs, rails, etc., passes to the purchaser as part of the realty.
    5. What was once pare of the realty remains so on being detached, until the owner of the freehold by his act or election gives it a different character.
    March 25th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Montgomery county: Of January Term 1881, No. 20.
    Trespass, quare clausum fregit, by William Leidy against Joseph Proctor. Plea not guilty.

      On the trial, before Ross, P. J., the testimony showed the following facts:
    By virtue of an execution upon a judgment obtained by one Albertson against William Leidy, .a certain farm belonging to Leidy, and in his possession, was sold at sheriff’s sale on August 21st 1878, to Joseph Proctor, and a sheriff’s deed was acknowledged to him therefor on September 10th 1878. On September 12th, Proctor served on Leidy a written notice to surrender possession of the premises within three months. About the 20th of September Proctor entered on the premises,'against Leidy’s consent, but peaceably, and ploughed part of a field. Again, on September 23d, he peaceably entered, with a large number of men, and, in pursuance of advertisements, held a public sale of certain wood lots, with standing and fallen timber thereon. By the terms of this sale, possession was to be delivered to the purchasers on April 1st 1879, and no fallen timber was to be removed prior to that date On October 2d 1878, Leidy brought this action.
    Ross, P. J., charged the jury substantially as follows:
    “ It is somewhat singular that from the earliest days until now this question, although constantly arising, never has been decided by the court of last resort. Prior to 1802, when a man bought land at sheriff’s sale, the only remedy by which he could obtain possession was an action of ejectment. This was a long and tedious process. The legislature in 1802, passed an act providing that the purchaser, after his deed had been acknowledged, may give notice that he desires possession in three months, and, except in certain cases, may obtain summary possession after that period in a proceeding before two justices. In 1836 the framers of our civil code re-enacted substantially the Act of 1802.
    [“ Now the first question of law distinctly arises and that is, whether the Acts of 1802 and 1836 take away the right of the purchaser at sheriff’s sale to bring an action of ejectment. I distinctly charge you that they do not, that the right to bring ejectment exists, that the right to the summary remedy exists, that either is at the option of the party, and that either is a remedy against the unjust detention spoken of in this preamble.] Now then, as an action of ejectment was a remedy which provided for the mesne profits, that is the accruing fruits of the land during the period of unjust detention, as the Acts of 1802 and 1836 are cumulative remedies, and as the act of 1836 distinctly provides that in case the finding is for the petitioner, the jury shall assess such damages as they shall think right against such defendant or person in possession ‘ for the nnjust detention of the premises,’ I say to you distinctly and positively that the unjust detention begins from the date of the acknowledgment of the sheriff’s deed, as well under the summary remedy provided by the Acts of 1836 and 1802, as it does under the action of ejectment. [The next inquiry is, whether during the three months the plaintiff, having adopted the summary remedy against the defendant or owner, may lawfully enter upon the premises; or rather, to state it more accurately, whether his entry upon the premises without a breach of the peace and without ah ‘ ouster,’ that is a putting out of the owner or occupier, is a trespass ? I distinctly charge .you that it is not, and I say to you that where a man has purchased at sheriff’s sale, and enters upon the premises after the deed is acknowledged, either to gather crops, to plough the ground, to cut down timber, or do any other act of ownership, he is no trespasser, unless such act of his is done with violence and the strong hand, amounting to a breach of the peace. Therefore when Mr. Proctor entered upon these premises and ploughed this field, having committed no act of wanton violence, having been guilty of no breach of the peace, being the holder of the sheriff’s deed, vested with the right of property, by virtue of that right and that deed vested with the right of possession, he was no trespasser, and being no trespasser he could commit no injury to the defendant, and there can be no damages upon that ground. Therefore there can be no recovery here. Then, again, when he held a public sale upon the woodland he was vested with the same rights. He was no trespasser, and therefore his business there and his sale of the property, even although he had given the immediate possession to his vendees and entered upon these wood lots and cut wood during the three months, was no trespass and therefore no damage done. The entry at that time would not be found to support any verdict for the plaintiff. * * *
    [“I charge you distinctly that all the timber that lay upon the ground before the sheriff’s sale and which had fallen did not pass to the purchaser, Mr. Proctor, but was the personal property of Mr. Leidy. I do not think that this is material in this case for the reason that there is no evidence here, not a scintilla, that Mr. Proctor ever carried away a single stick of this fallen wood. If others came in and took it they are liable for their trespasses. It is not his. Even if they did it under a sale from him it would make no difference whatever in this case, for the conditions were that none of it was to be taken until the first of April next succeeding, and besides, Mr. Leidy declares that in pursuance of instructions from Mr. Corson he obtained a portion of that wood which was still lying there even as against Mr. Proctor’s tenants. * * * If you believe the evidence given by both sides all around in this case, under the law as I have declared it to you, it will be your duty to render a verdict in favor of the defendant.”]
    Verdict and judgment for the defendant. The plaintiff took this writ of error, assigning for error the portions of the charge above quoted in brackets.

      George N. Corson, for the plaintiff in error.
    The judge virtually ignored the Act of 1836, which we claim gives an unfortunate owner of land sold by the sheriff three months in which to move his goods and find a new home. If the purchaser has a right to enter immediately on receiving his deed, the statute requiring three months’ notice is of no effect. An owner or a tenant cannot he ejected without duo process of law. Where a remedy is provided by statute, the directions of the statute must be strictly followed: Act of March 21st 1806. Where the statute and the common law differ the latter must give way: 1 Black. Com. 88. The judge charged that “ the timber that lay upon the ground before the sheriff’s sale did not pass to the purchaser,” yet he instructed the jury that the defendant who entered and sold it was not a trespasser.

      H. K. Weand, for the defendant in error.
    A purchaser at sheriff’s sale has the title and the right to possession immediately on the acknowledgment of the sheriff’s deed, lie may take possession, provided he does not commit or provoke a breach of the peace. If he is prevented from entering peaceably ho may bring ejectment, or servo notice under the Act of 1836, and on recovery, in either case, he is entitled to damages for the unjust detention by the party in possession, who is, in law, a trespasser: Barnes v. Dean, 5 Watts 543; Snavely v. Wagner, 3 Barr 275; Kellam v. Janson, 5 Harris 467. Ejectment to recover possession of lands bought .at sheriff’s sale has frequently been maintained since the Act of 1836: Drake v. Brown, 18 P. F. Smith 223; Dunlap v. Cook, 6 Harris 454. Remedies provided by statute do not affect the right of redress by act of the party, hut are in addition thereto : Overdeer v. Lewis, 1 W. & S. 90; Rich v. Keyser, 4 P. F. Smith 86; Snyder v. Carfrey, Id. 90. In a lease requiring three months’ notice, the landlord, or a purchaser at sheriff’s sale, may take possession at the end of the term without notice if he can do so peaceably.
   Mr. Justice Gordon

delivered the opinion of the court, May 2d 1881.

By virtue of a certain writ or writs of venditioni exponas, issued out of the Court of Common Pleas of Montgomery county, at the suit of J. M. Albertson & Sons against William Leidy, the plaintiff in the present suit, the land of the said Leidy was sold by the sheriff to tho defendant, Joseph Proctor, and a deed made therefor, which-was duly acknowledged and delivered to him on the 10th of September 1878. From this period he was the absolute owner of the land, and though Leidy continued in the actual possession, that possession was wrongful; tho right thereto was in Proctor. This very obvious legal proposition I do not understand to be disputed, but if Proctor had both the title and right of possession. why might he not lawfully enter ? Or how does it come, that in the exercise of a lawful right, it is possible for him to be subjected to those pains and penalties to which one whose entry is without right ought alone to be exposed ? Had Leidy’s possession been by a tenant, immediately upon the delivery of the sheriff’s deed, Proctor, by force of the statute, would have become the landlord of that tenant, and had Leidy after that entered upon the land, he would have been a trespasser. Hence, it was held, in the case of St. Clair’s Heirs v. Shale, 8 Harris 105, that a sheriff’s vendee might lawfully obtain possession of the premises by the attornment of the tenant of defendant in the execution. But if the law thus casts the immediate right of possession on the sheriff’s vendee, in the one case, why not in the other ? Of course, to all this there is but one answer, and that is the one made use of by the plaintiff —that under the Act of 1836, the defendant is entitled to possession for the period of three months after the notice to quit. The learned judge of the court below thought this position unsound, and we are of the opinion he was right. The summary process given by the Act of 1836 was certainly not intended for the benefit of the defendant in the execution — the language of the act negatives such an idea; for “ in case of a finding for the petitioner, as aforesaid, the jury shall assess such damages as they shall think right, against such defendant or person in possession, for the unjust detention of the premises.” Clearly the statute was not intended to favor one whose possession it assumes to be unjust; one- who maintains such possession without right; it must therefore have been intended for the benefit of the purchaser at the sheriff’s sale. Because he may not be able, by reason of the hostile attitude of the defendant or person in possession to possess himself of the premises peaceably, and because the acúon of ejectment is tedious and expensive, therefore is this summary remedy, under the Act of 1836, given. But the sheriff’s vendee is not thereby deprived of any of his previous or concurrent remedies ; he may serve notice and proceed under the act, but this is optional with himself. If he does not choose to avail himself of this statutory process he may resort to his common-law remedies. This very point was ruled in Kellam v. Janson, 5 Harris 467, where it was held that the vendee of land had no title at all as against a purchaser at sheriff’s sale under a prior judgment against the vendor, because such title was wholly divested by the judicial sale. In the case cited, the court below assumed just what is'here contended for on the part of the plaintiff, that is to say, that the sheriff’s vendee had no right to disturb the possession of the person claiming under the defendant in the execution, except by the process prescribed by the Act of 1836. That case, like the one in hand, was trespass, brought by the vendee of the debtor against the purchaser at the sheriff’s sale; and the complaint was that this purchaser had entered during the temporary absence of the plaintiff, broke open his house and turned his goods out of doors. This was undoubtedly a strong case, nevertheless it was held, reversing the court below, that “an action is well founded only when a right is invaded, but that the plaintiff’s right ceased by the entry of the defendant- — an act that completely obliterated the shadow of right cast by the plaintiff’s possession. A complaint against the assumption of possession is a complaint against the assertion of a right, and a demand that the law shall give the plaintiff damages for the loss of that which it was wrong for him to baye.” It was further said, that the case was covered by the principle governing Overdeer v. Lewis, 1 W. & S. 90, and of all those cases where redress is allowed by the act of the party, that the statutory remedies do not affect such right, since they are necessary only because such possession cannot always be assumed by the mere act of the party. It is true that the ease cited was one where the plaintiff had entered after the date of the sheriff’s sale, and in this it is dissimilar to the case in hand, where the plaintiff merely continued a possession which had previously belonged to him. The principle, however, pervading the two cases is identical. In either case the plaintiff’s right of action ceased with his right of possession, and that right had its end when the lawful owner made his entry. Moreover, if Over-deer v. Lewis is in point, as it is said to be, any shadow' of doubt that might remain is swept away. In this case it was held, that a landlord might enter and remove from his premises a tenant holding over after the expiration of the lease, though he had not given notice as required by the Act of 1772.

These cases then settle this part of the present controversy and support the ruling of the learned judge of the court below. It is, however, the fifth assignment which the couusel for the plaintiff considers the most important, and he regards that part of the judge’s charge covered by it as containing a startling legal-heresy. “I charge you distinctly,” says the court, “that all the timber that lay upon the ground before the sheriff’s sale, and which had fallen, did not pass to the purchaser, Mr. Proctor, but was the personal property of Mr. Leidy. I do not think that this is material in this case, for the reason that there is no evidence here, not a scintilla, that Mr. Proctor ever carried away a single stick of this fallen wood. If others came in and took it, they are liable for their trespasses. It is not bis. Even if they did it under a sale from him, it would make no difference whatever in this case, for the conditions were that none of it was to be taken until the first of April next succeeding, and besides Mr. Leidy declares that in pursuance of instructions from Mr. Corson he obtained a portion of that wood which was still lying there, even as against Mr. Proctor’s tenants.” But in this there is no error of which the plaintiff had any right to complain. The court assumed that Leidy had a right to the fallen timber, though he had done no act prior to the date of the sheriff’s sale which indicated an intention to convert it into personal property. On this assumption it may be admitted that had the defendant by sale or otherwise authorized any person or persons to enter and take this fallen timber before the bringing of this suit, he would have been liable as a trespasser, but he did nothing of the kind. He authorized no one to go upon the premises before the 1st of April 1879, which was long after the bringing of this suit, so that if any timber was taken from •that land, it was not only without his authority, but in express violation of the conditions of sale; We are, therefore, unable to see how in all this there was error of which the plaintiff could reasonably complain. Had the court gone farther than it did, and told the jury that the fallen timber which the plaintiff had not converted into saw logs, rails or firewood, before the date of the delivery of the sheriff’s deed, passed with the freehold to the defendant, no more would have been said than the law warranted. In Rogers v. Gilinger, 6 Casey 185, where the action was trover for the fragments of a building which had been blown down by a tempest before the date of the sheriff’s sale under which the defendants claimed, it was held that the plaintiffs could not recover; that these fragments belonged to the sheriff’s vendees.

In this case Justice Strong, who delivered the opinion of the court, made use of the following language: “What then is the criterion by which we are to determine whether that which was once part of the realty has become personalty on being detached ? Not Capability of restoration to the former connection with the freehold,- as is contended, for the tree prostrated by the tempest is incapable of re-annexation to the soil, and yet it remains realty. The true rule would rather seem to be that that which was real shall continue real until the owner of the freehold shall, by his election', give it a different character.”

As this opinion was very carefully considered, and as the authorities therein cited most fully sustain it, we must regard it as a definitive settlement of the question, adding only that were the question a new one, onr own judgment would lead us to the same conclusion.

The judgment is affirmed.


author: Mr. Justice Trunkey

text:
    Ash et al. versus Guie to use, etc.
    1. The members of a Masonic lodge cannot, without evidence to warrant the inference, be deemed partners in the business of purchasing real estate and erecting buildings so as to bind each of them for amounts borrowed by other members to be appropriated to such purposes.
    2. The members of a Masonic lodge, an unincorporated body, appointed a committee to erect a building for the use of the lodge, authorizing them to borrow money for this purpose. The committee accordingly borrowed various sums, giving to the lenders certificates of indebtedness in the name of the lodge, signed by the officers thereof, and sealed with a seal usually employed by the secretary for authenticating communications to other lodges and which bad never before been appended to a pecuniary obligation, in a suit brought upon one of said certificates wherein all the members of the lodge were joined as defendants and alleged to be partners: Held, that all the members of the lodge were not .liable as partners upon the certificate. Held, further, that the members of the committee or those members of the lodge who participated in the erection of the building by voting for or advising it, and those members who in any way assented to the undertaking or subsequently ratified it were alone liable for the amount of the certificate. Held, further, that the seal attached to the certificate must be deemed as the seal only of the, officers signing the same and of those who advised the affixing of it thereto.
    .3. Where judgment has been obtained against an unincorporated association and a fi. fa. against realty issued thereon which has been returned levied and condemned, but no further proceedings have been taken thereon, and subsequently the individual members of such association are sued for the same claim, a plea of “ former recovery ” on their part is a nullity.
    4. The Act of May 28th 1878, Pamph. L. 153, providing that in all civil proceedings by or against surviving partners, the policy of the law shall not exclude any party to the record from testifying to matters having occurred between the surviving party and the adverse party to the record, is a remedial statute and will be liberally construed so as to include the ease of any two who may jointly contract, even though not strictly partners.
    5. Semble, therefore, that if two persous jointly execute a note, and one die, in an action between the holder and the survivor, the statute will apply as if the makers had been partners.
    6. The Aet of March 27th 1865, Pamph. L. 38, enabling a party in any civil proceeding to compel the opposite party to testify on his behaíf, is not affected by the Act of April 15th 1869, Pamph. L. 30. Where, therefore, the plaintiff' in an action upon a contract made with several defendants, some of whom have since died, calls upon others of them to testify on his behalf: Held, that the witnesses were competent and that their evidence should have been admitted.
    7. A liberal construction of the Act of March 22d 1861, Pamph. L. 186, permits the plaintiff, where one of several defendants has' died since the commencement of the action, to bring in the executor or administrator of tlie deceased defendant and to proceed against him and the survivor at the same time to judgment. But he cannot be compelled to do this, nor can the representatives of the decedent come in and be substituted without the plaintiff's consent, nor can the survivors claim delay until the representatives be substituted.

      '8. In a suit against several joint debtors, judgment for want of an appearance was improperly entered against some of them and stricken off without leave of court. A like judgment was then granted by the court, and after-wards on motion of plaintiff stricken off by the court before the trial‘of the cause. Held, that these facts did not constitute error calling for reversal,
    March 25th 1881.
    Before Sharswood, C. J., Mercür, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Chester county: Of January Term 1880, No. 337.
    Assumpsit, by William H. Guie to the use of J. Alfred McOaughey, against Phineas A. Ash, Horace A. Beale, James Mullen, executor of James C. Roberts, deceased, and over one hundred others, “lately trading as Williamson Lodge, No. 309, A. Y. M.” The plaintiff filed the following statement:
    “ The plaintiff’s demand in the above case is founded on a claim for money loaned to the defendants, which was received by them, and used by them in the business in which they were then engaged, for which the defendants issued to the plaintiff a certificate of indebtedness, of which the following is a copy:
    “Ho. This is to certify. $100
    That Williamson Lodge Ho. 309, A. Y. M., of Downingtown, Chester county, Pennsylvania, acknowledges itself indebted to William H. Guie, in the sum of one hundred dollars, payable in two years from Hovember 11, 1870, with lawful interest for the same, payable annually.
    • “In testimony whereof the Worshipful Master and Wardens have hereunto set their hands, and caused the seal of said Lodge to be affixed, at Downingtown, this 11th day of Hovember, a. d. •1869.

      “Attest: R. D. Wells, Secretary.

    “ Which certificate was afterwards assigned by the plaintiff to the equitable plaintiff, by an assignment endorsed thereon.”
    The sheriff returned the writ served as to a large number of the defendants, and nihil habet as to others. Judgment was entered for want of an appearance against a number of the defendants after the return-day, and more than ten days after service, but before the actual return of the writ. After the writ had been returned judgment was also entered for want of an appearance against a number of other defendants. By order of plaintiff’s attorney filed, but without application to the court, these judgments by default were “ stricken off, as having been improvidently entered, and as being null and void and of no effect.” On the same day judgment was taken by default, in open court, against the same defendants. This judgment was, on motion of plaintiff, stricken off before trial.
    A number of the defendants filed affidavits of defence and rules to show cause why judgment should not be entered for want of sufficient affidavits were discharged by the court. The defendants then pleaded non assumpsit, non assumpsit infra sex annos, payment, payment with leave, &c. One of the defendants, Charles E. Elston, set up in his affidavit of defence (which was subsequently treated as a plea) a former recovery of judgment by the plaintiff’ in a suit against “ The Williamson Lodge No. 309, A. Y. M.,” for the same cause of action. The record of that suit did not show that Elston had been served or that he appeared therein; it showed that a fi. fa. had issued under which real estate of the' defendant had been levied upon and condemned, but that no further proceedings had been taken therein.
    The defendants suggested of record the death of ten of their number.
    When the case was called for trial, before Futiiky, P. J., the plaintiff asked that the jury be sworn to try the case against tho survivors of the defendants. The defendants objected, on the ground that the action being brought against partners, trading as Williamson Lodge, &c., the trial could not proceed without bringing in the representatives of the deceased defendants. Objection overruled; exception. The jury was thereupon sworn as to the survivors.
    The evidence showed the following facts: The Williamson Lodge of Ancient York Masons, No. 309, was an unincorporated association for charitable, benevolent and social purposes, tho officers of which were a Worshipful Master, Senior Warden, Junior Warden, Treasurer, Secretary and a Board of three Trustees. The trustees had charge of the property of the lodge, took the title to land, collected the income and extra funds of the lodge, &c. The lodge had a seal, which was used for authenticating certificates of membership, communications by the secretary with other lodges, and for similar purposes. About the year 1867 the lodge desired to erect a building for lodge purposes. The master, at a meeting of the lodge on September 13th 1867 (without any prior resolution authorizing him so to do, so far as appeared in evidence), appointed a committee of five, consisting of the three trustees and two other members, to select a lot, procure plans for a new building, &c. The temple or building was erected under the direction of this committee of five. They appointed their own treasurer, collected funds and issued certificates therefor, of which that in suit is one, signed by the worshipful master, the senior and junior wardens, attested by the secretary and authenticated by the seal of the lodge. The committee was not specially authorized to give said certificates, but it was the custom of the lodge to issue like instruments whenever it borrowed moneys. Prior to the use of the seal on these certificates, it had never been attached to any pecuniary-obligation. The committee reported io the lodge from time to time, and its action was approved by the lodge. The building was 65 feet by 50 feet and three stories in height, with a basement. The lodge occupied the rooms on the third floor; the other rooms were rented out for general- purposes, as opportunity offered.
    The plaintiff, Guie, was called to testify in his own behalf. Objected to, on the ground that some of the original defendants having died, the plaintiff is not a competent witness. Objection overruled. Exception.
    The plaintiff also called R. D. Wells, Joseph Doan and J. A. McOaughoy, defendants, as on cross-examination. Objected to, “ because plaintiff must make out his ease by affirmative proof, and not cross-examination; because said persons are interested parties, and some of the defendants have died since the suit was brought.” Objection overruled. Exception.
    The defendants presented the following- points:—
    1. The defendants’ association "was not such a partnership as is chargeable for the acts of any members of the association, and no person who was not present at the time that any of the actions bearing upon this matter were presented to the lodge can be held responsible in this suit.
    2. The defendants cannot be held liable as partners for the debt in suit, there being no proof that they held themselves out to the world as partners, and no evidence that they agreed among themselves to be pártners.
    3. The instrument in suit they allege is under the seal of the defendants. The proof shows that it is not the seal for transacting such business. It is a seal that was never used, and is not authorized by the lodge to be used, for such purpose. It does not bind the parties defendant, therefore there can be no recovery thereon against them.
    4. The former recovery pleaded by Charles E. Elston, one of the defendants, is a bar to recovery in this action.
    5. Upon the whole evidence the plaintiff is not entitled to recover.
    The court charged the jury as follows: “ The questions involved in this case are questions of law. The points will be reserved by the court for future consideration. We direct you to render a verdiet for the plaintiff for the amount of his claim, and the questions raised during the trial will be more fully considered hereafter.”
    Verdict accordingly for the plaintiff for $160. The court subsequently entered judgment for the plaintiff on the reserved points. The defendant took this writ of error, assigning for error, inter alia, the striking off of the judgments entered by default, on the order of plaintiff’s counsel, without an order of court, or the application or consent of any of the defendants ; the swearing of the jury against the survivors of joint contractors, without substituting the representatives of deceased defendants whose deaths had been suggested; the admission of plaintiff, and of some of the defendants, to testify ; and the entry of judgment on the reserved points.

      R. E. Monaghan (with him P. F. Smith), for plaintiff in error.
    The members of the Williamson Lodgo were not chargeable by reason of their membership for the acts of any of their co-members. The defendants were members of a club or benevolent association which had no business object. There was no capital stock nor community of goods or of labor or of profit and loss. There was no intention to form a partnership, nor did they hold themselves out to the world as partners. They are not liable except for the acts of their agents, within the scope of their duty or the objects of the association. The building of a temple, two rooms of which were occupied by the lodge and the remainder rented for profit, was not within the ordinary affairs of the lodge; and no member is hound for obligations thereby incurred who did not authorize or participate in the borrowing of money. No agency is implied from the mere fact of association: Story on Part. 144, and note; Eichbaum v. Irons, 6 W. & S. 68; 1 Lindley on Part. 55-56: Flemyng v. Hector, 2 M. & W. 172; Todd v. Emly, 7 Id. 432; Livingston v. Lynch, 4 Johns. Ch. 594. The signing of the certificate by the officers was outside the scope of their duty, and ultra vires. The common seal of the lodge to the certificates, unlike a corporate seal, could bind no members who did not individually adopt it as their own.
    Guie, Wells and Doan, parties to the suit, were not competent witnesses to charge the estates of deceased defendants: Act of April 15th 1869, Pamph. L. 30; Karns v. Tanner, 16 P. F. Smith 297; Hanna v. Wray, 27 Id. 27; Standbridge v. Catanach, 2 Norris 368; Brady v. Reed, 6 Id. 111. The Act of May 25th 1878, Pampli. L. 153, does not remove their incompetency. It is limited to suits against surviving partners.
    But if the defendants were partners, the court erred in allowing the case to be tried against the surviving defendants only: Act of March 22d 1861; Dingman v. Amsink, 27 P. F. Smith 114; Brady v. Reed, supra. The suit is against partners under an alleged sealed instrument. But partners have no authority to bind the partnership with a seal, unless expressly authorized: Story on Part. 117; Gerard v. Basse et al., 1 Dall. 121; Overton v. Tozer, 7 Watts 331; Snyder v. May & Klose, 7 Harris 235; Bewley v. Tams, 5 Harris 485; Johns v. Battin, 6 Casey 84; Hoskinson v. Eliot et al., 12 P. F. Smith 393.

      R. Jones Monaghan, for the defendant in error.
    The jury was properly sworn against the survivors. The common-law rule, that an action against joint contractors would, on the death of one defendant, abate, was changed by the statute, 8 & 9 W. 4, c. 3, which is in force in Pennsylvania: Roberts Dig. *142; Walter v. Ginrich, 2 Watts 204; McCabe v. United States, 4 Id. 325; Given v. Albert, 5 W. & S. 339; Insurance Co. v. Spang, 5 Barr 113; Miller v. Reed, 3 Casey 248. This statute was not repealed by the Act of March 22d 1861, Pamph. L. 186, Purd. Dig. 39, pl. 12; Machette v. Magee, 9 Phila. 24; Hollenbach v. Moore, 1 W. N. C. 192; Hoskinson v. Elliott, 12 P. F. Smith 393; Neal’s Ex’rs v. Gilmore, 29 Id. 426.
    The witnesses Wells, Doan, Guie and McCaughey were competent. The jury were sworn to try the issue between living parties only; both sides were on an equality and both could testify. The case falls within the Act of 1869, and is not within any of the exceptions. The judgment recovered against the survivors does not bind the estate of any dead member. Moreover, the Act of May 25th 1878, Pamph. L. 153, is applicable, as the witnesses were only called to testify as to matters which occurred “ between the surviving partners and the adverse party.”
    The defendants were jointly liable as partners. The members were jointly interested in the capital stock and property, and in the profit and loss thereon. Lodges of Free Masons have been treated as partnerships in England: Lloyd v. Loaring, 6 Ves. 773; Beaumont v. Meredith, 3 Ves. & B. 180.
    The plea of former recovery cannot avail the defendants, because the former suit was not between the same parties, but was against “ The Williamson Lodge” only by its title. The record does not show a judgment against any of these defendants.
    The defendants, by their acts or silence, ratified the use of the seal on the certificate, and were bound thereby, but if this were otherwise, our judgment may be supported under the common counts in debt contained in the narr.

   Mr. Justice Trunkey

delivered the opinion of the court, May 2d 1881.

One of the defendants, called by plaintiffs, testified: The full title of our lodge is Williamson Lodge, No. 309, E. and A. M.; F. and A. M. means Free and Accepted Masons; the purposes of our lodge are charitable, benevolent and social.” This is the evidence as to the objects for which the association was formed, and without proof of its constitution or rules respecting admission of members and the management of its affairs it was held to be a common partnership. A partnership has been defined to be a “ combination by two or more persons of capital, or labor, or skill, for the purpose of business for their common benefit.” It may be formed, not only for every kind of commercial business, but for manufacturing, hunting, and the like, as well as for carrying on the business of professional men, mechanics, laborers, and almost all other employments. It would seem that there must be a community of interest for business purposes. Hence, voluntary associations or clubs, for social and charitable purposes, and the like, are not proper partnerships, nor have their members the powers and responsibilities of partners: Parsons on Part., 6, 36, 42.

A benevolent and social society has rarely, if ever, been considered a partnership. In Lloyd v. Loaring, 6 Vesey 773, the point was not made, but Lord Eldoxt thought the bill would lie on the ground of joint ownership of the personal property in the members of a Masonic lodge; there was’no intimation that they were partners. Whore a society of Odd Fellows, an association of persons for purposes of mutual benevolence, erected a building, which was afterwards sold at sheriffs sale in satisfaction of mechanics’ liens, in distribution of the proceeds, it was said that, as respects third persons, the members .were partners, and that lien-creditors, who were not members, were entitled to preference as against the liens of members: Babb v. Reed, 5 Rawle 151. Had the members been called joint-tenants of the real estate, the same principle in the distribution would have applied. In Flemyng v. Hector, 2 M. & W. 172, Lord Abingbe, stated the difference between a body of gentlemen forming a club and meeting together for one common object, and a partnership where persons engage in a community of profit and loss, and each partner has the right of property for the whole, and in any ordinary transactions may bind the partnership by a credit. He held that a club and its committee must stand on the ground of principal and agent, and that the authority of the committee depends on the constitution of the club, which is to be found in its own rules. After noting the rules of the club, in the case before him, he says: “ It therefore appears that the members in general intended to provide a fund for the committee to call upon. I cannot infer that they intended the committee to deal upon credit, and unless you infer that that was the intention, how are the defendants bound?” A mutual beneficial society partakes more of the character of a club than of a trading association. Every partner is agent for the partnership, and as concerns himself he is a principal, and he may bind the others by contract, though it be against an agreement between himself and his partners. A joint, tenant has not the same power, by virtue of the relation, to bind his co-tenant. Thus, one of several co-adventurers in a mine, has not, as such, any authority to pledge the credit of the general body for money borrowed for the purposes of the concern. And the fact of his having the general management of the mine makes no difference, in the absence of evidence from which an implied authority for that purpose can be inferred: Ricketts v. Bennett, 4 M., G. & S. 686, (56 Eng. C. L.).

Here there is no evidence to warrant an inference that when a person joined the lodge he bound himself as a partner in the business of purchasing real estate and erecting buildings, or as a partner, so that other members could borrow money on his credit. The proof fails to show that the officers or a committee, or any number of the members, had a right to contract debts for the building of a temple, which would be valid against every member from the mere fact that he was a member of the lodge. But those who engaged in the enterprise are liable for the debts they contracted, and all are included in such liability who assented to the undertaking, or subsequently ratified it. Those who participated in the erection of the building, by voting for and advising it, are bound the same as the committee who had it in charge. And so with reference to borrowing money. A member who subsequently approved the erection or borrowing could be held on the ground of ratification of the agent’s acts. We are of opinion that it was error to rule that all the members were liable as partners in their relation to third persons in the same manner as individuals associated for the purpose of carrying on a trade.

This unincorporated association had a seal which the officers were authorized to use for certain purposes. Some of those who engaged in the business of borrowing money directed it to be affixed to the certificate of indebtedness. All who did, adopted it as their seal for the specific purpose. It was not the seal of a corporation, nor intended as such. The parties borrowed the money in the name of the lodge, and gave'the certificate in same name, and adopted a common seal. They cannot repudiate it in good faith to the lender. He loaned the money on a sealed instrument, in many re'spects better than a simple contract. Those who advised affixing the seal should be held the same as their officers, who signed the certificate. Were the members partners, without evidence of agreement betwmen them that the seal should be affixed to contracts, those not assenting to its use in that way would not be bound by a sealed instrument, though given for a debt for which all were liable. Schmertz v. Shreeve, 12 P. F. Smith 457. The learned judge was right in ruling that the certificate was a sealed instrument, but not, under the evidence, in holding that it was authorized by all the members.

Elston pleaded a former recovery in an action against The Williamson Lodge, No. 309, A. Y. M.” The court properly remarked that if judgment had been recovered in that suit against any of these defendants, it would not have precluded recovery in a subsequent action against those not joined. That was not a recovery against any person, natural or artificial. The writ was not served upon Elston, nor did he appear. It is not to the purpose to speak of the result, had property, held in the name of the lodge, been sold in satisfaction of the judgment. The plaintiff has received nothing, and Elston was not a party in that proceeding.

The Act of May 2oth 1878, Pamph. L. 153, provides that in all civil proceedings by or against surviving partners, no interest or policy of iaw shall exclude any party to the record from testifying to matters having occurred between the surviving party and the adverse party on the record. This statute is remedial, enacted to enable parties to testify wiio stand on an equality, though a party in interest be dead. Its spirit embraces the survivor of two or more who jointly contracted. If two persons jointly execute a note, and one die, in an action between the holder and the survivor, this statute should apply as if the makers had been partners. Otherwise, the mischief is only partially remedied. Those jointly concerned in a transaction are partners in the popular sense of the word, and, considering the obvious intendment of the statute, it should apply in case of a surviving partner, in the popular as well as the technical sense. Therefore, Guie was a competent witness to prove what occurred between himself and the defendants.

It was clearly competent for the plaintiff to call Wells and Doan. Any party, in any civil action, may compel any adverse party to testify in his behalf, in the same maimer and subject to the same rules, as other witnesses (Act March 27th I860, Pamph. L. 38). This statute is not affected by the Act of 1869. Wells and Doan were not called to prove the liability of any deceased member of the lodge, and no objection was made on that ground. It is immaterial to the plaintiff' in this trial whether the deceased members were liable. He has a right to prove everything, if he can, by the adverse party, which will establish his case. The adverse party is called against his interest, and the statute places him in a different position from a party proposing to testify in his own behalf.

The Act of March 22d 1861, Pamph. L. 186, provides that in no case on any joint obligation, shall a plea be entertained, on the part of any heir or personal representative, that one of the joint debtors has deceased since the commencement of the action, but the same shall he proceeded in against the estate of said decedent, as though the suit had been commenced against the decedent alone. Literally and strictly, upon the death of a party to the record, jointly sued with others, the further progress of the action against his estate is the same as if he had been sued separately. A liberal construction of the statute permits the plaintiff to bring in the executor or administrator, and proceed against him and the survivor at the same time to judgment: Dingman v. Amsink, 27 P. F. Smith 114. But it does not follow that lie is compelled to do this, or that the representatives of the decedent may come in and he substituted, and have trial with the survivor, against the plaintiff’s consent; much less can the survivors claim delay till the representatives be-substituted. There was no error in directing the jurors to be sworn as to the survivors.

Judgment was erroneously entered by the plaintiff against part of the defendants in default of appearance, which was afterwards struck off without leave of court. The defendants made no motion to have it reinstated ; they appear to have acquiesced in the striking off. Subsequently, upon motion, the court granted judgment against the same defendants, and this also was struck off by the court, before trial.;, We are not convinced of any such error in these interlocutory judgments, and their vacation, as calls for reversal.

Without noticing seriatim the two dozen assignments of error, we have endeavored to express our opinion on every material point raised by them. This writ is by all the defendants, and they contend that none are liable. That the money was fairly loaned by the plaintiff and used by the borrowers, is not disputed. If any of the defendants had no part in the borrowing, either by previous assent and procurement, or by subsequent ratification, they have a meritorious defence, and the grounds on which the judgment is reversed will avail them. The question is one of fact, and must be determined by the jury from the evidence. It is difficult to conceive of a meritorious defence in those who actually got the money, some of whom signed the certificate, and others actively participated in the giving of it. They have a legal right to refuse payment until judgment be recovered according to law. But they cannot complain if the plaintiff fails to include every one in the action who is liable, or fails to discover proof against every one included. In the nature of the case, it is difficult for the plaintiff to determine in advance the precise individuals who are liable, though he be sure of some of them, and the court below has not been, and will not likely be, slow to allow necessary amendments, authorized by the statutes.

Judgment reversed, and venire facias de novo awarded.


text:
    Fulmer versus Commonwealth.
    1. A count in an indictment charging two distinct offences may he quashed on the defendant’s motion. But a count will he good which in an indictment lor larceny joins the larceny of several distinct articles belonging to different owners, provided the time and place of the taking of each are the same.
    2. Sect. 31. par. 8, of the Crimes Act of March 31st 1860, Pamph. L. 438, does not confer upon the courts of Oyer and Terminer exclusive jurisdiction to try persons charged with the offence of receiving stolen goods.
    3. Where the meaning of certain words or phrases in an enactment is judicially ascertained, and subsequently in a new statute which is a revision of the former one, the same words or phrases are retained, they will be construed to have been used in the sense attached to them by the adjudication.
    4. Where in a prosecution for larceny the defendant in order to prove lack of motive on his part, produced a witness to testify to the fact that he had kept the defendant supplied with money at the time when the larceny was alleged to have occurred: Held, that it was competent for the Commonwealth on cross-examination to ask the witness whether defendant was not at the time of the alleged larceny in need of money and owing pressing debts.
    5. Remarks made by counsel in summing up to a jury are dehors the record, and their propriety or impropriety cannot therefore bo passed upon on error by the Supreme Court.
    March 28th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Quarter Sessions of Monroe county: Of January Term 1880, No. 295.
    Chester B. Eulmer was indicted in the said Court of Quarter Sessions to September sessions 1879, for larceny and for receiving stolen goods with knowledge that they were stolon. The indictment contained two counts — the first charged that, on August 18th 1879, he did feloniously steal, take and carry away one gold chain of the value of §40, &c., &c., of the goods and chattels and property of one Elizabeth Evans; fifty dimes of the value, &c.; seven handkerchiefs, &o., &c., of the goods and chattels, property and money of one Mary N. West; and one gold watch, &c., the property of one Sarah Ilannum.
    The second count charged that the goods and chattels, property and money aforesaid, having been lately feloniously stolen, &c., by some person unknown, the said defendant did receive and have the same, well knowing the said goods and money, &c., to have been stolen, &c. Plea, not guilty.
    The defendant, by his counsel, moved the court to quash the first count of said indictment because he is charged therein with the commission of three separate felonies.” Motion overruled; exception.
    The defendant moved to quash the panel of jurors returned for the trial of cases in the Quarter Sessions, for December Term, “ because the said charge of receiving stolen goods is solely triable in the Oyer and Terminer, and but thirty-three jurors have been summoned, the venire having issued for thirty-six jurors only.” Motion refused; exception.
    Upon the trial, before Dreher, P. J., Henry Fulmer, the father of the defendant, a witness on behalf of the defendant, testified in chief, inter alia, “I gave Chester (the defendant) money every time he asked me. Think I gave him money in July.” On cross-examination the Commonwealth proposed to ask this witness: Q. “Do you know whether, your son, the defendant, was not, in the month of August last, in need of money to meet the demands of a large number of his creditors in Stroudsburg, Easton and Philadelphia ?” Objected to by the defendant, because incompetent, irrelevant and not cross-examination. Objection overruled ; excepception. Q. “ Did William C. Henry, who keeps a livery stable in East Stroudsburg, during the last summer, prior to August 18th, ask you to pay a livery bill contracted by your son, the defendant ?” Objected to, because not competent in this issue trying, to prove the debts owing by the defendant; and because the question is incompetent and irrelevant. Objection overruled; exception.
    Verdict, guilty. The court sentenced the defendant to pay a fine of $100, and the costs of prosecution, to return the stolen goods to the owner, and to undergo solitary imprisonment at labor in the Eastern penitentiary for tw'o years and six months.
    A rule for a new trial and in arrest of judgment was discharged by the court in an opinion filed. The defendant, having obtained an allocatur from this court, took this writ of error, assigning for ’ error the refusal of the court to quash the first count of the indictment, the refusal to quash the panel of jurors in the Quarter Sessions, and the assumption of jurisdiction by that court to try the defendant under the second count of the indictment — viz., for receiving stolen goods — and the admission of the Commonwealth's-questions to the witness Henry Fulmer on cross-examination, as above. The last assignment of error was as follows :
    “ 6. It is specially assigned for error, ‘ that the counsel who closed for the Commonwealth in addressing the jury, referring to the effect that proof of good character would have in a case of this kind, stated that the fact that defendant had not proven good character was a circumstance against him,’ to which objection was made by defendant’s counsel at the time. This assignment of error being the language of the court in the opinion filed of record, discharging the rule for new trial.”

      Henry W. Scott and W. W. Ker, for the plaintiff in error.
    The court should have quashed the first count of the indictment. The defendant might have been charged in three indictments or in three counts in one indictment, and the Commonwealth would then have been compelled to elect upon which they would try: 1 Wharton’s Crim. Law, (7th ed.) sect. 416; Commonwealth v. Manson, 2 Ash. 31. The defendant was compelled to meet the proof on all the charges without notice of what the proof would be. A count which charges separate offences is bad for duplicity: 1 Wharton’s Crim. Law, sects. 382, 395; 1 Chitty’s Crim. Law 248; Jillard v. Commonwealth, 2 Casey 169; Commonwealth v. Bartilson, 4 Norris 482; Hutchinson v. Commonwealth, 1 Id. 478; Kilrow v. Commonwealth, 8 Id. 489. Under the Criminal Procedure Act of March 31st 1860, sect. 31, par. 8, the crime of receiving stolen goods is within the exclusive jurisdiction of the Oyer and Terminer, and the panel of thirty-three jurors in the Quarter Sessions instead of forty-eight, required for a Court of Oyer and Terminer, should have been quashed: Donaldson v. Commonwealth, 9 W. N. C. 393. The reason for making the offence of receiving stolen goods a higher grade than larceny was stated by Tii,ghman, C. J., 6 Binney 320 — “one receiver may support twenty felons.”
    It is not easy to say in what precise form error in the permission of improper remarks by counsel in their argument to the jury should be brought into this court. An instruction by the court below to the jury to disregard it would not cure the damage already done. We objected at the moment of the mis-statement, and asked the court to note our objection. This objection was one of the reasons for a new trial, but the court discharged the rule. We assign the error specially, as a mistrial, and ask this court to exercise its supervisory jurisdiction, like that of the King’s Bench, to relieve grievances and see that no injury is done to a subject. Unfair conduct to the accused, in the closing argument of the Commonwealth’s attorney, after conviction is ground for reversal: Fox v. People, 95 Ill. , (Amer. Law. Reg., August 1880, p. 520).

      J. B. Storm (with him D. S. Lee, District Attorney, and L. M. Bursom), for the defendant in error.
    Remarks made by the district attorney, in his speech to the jury, are not ground for a new trial and á, fortiori for reversal: Commonwealth v. Twitchell, 1 Brewst. 554, 592. In this case there was no request to have the words reduced to writing, nor for specific instructions by the court to the jury, nor for the withdrawal of a juror and a continuance. The defendant simply “objected,” and having taken his chance for a verdict cannot now complain. Defendant asked for a new trial on this ground among others; the court in the exercise of its sound discretion refused the application, and this court cannot review it: Fife v. Commonwealth, 5 Casey 429; Hopkins v. Commonwealth, 14 Wright 9; Cathcart v. Commonwealth, 1 Id. 108; Jewell v. Commonwealth, 10 Harris 99. There is no error in the other assignments.
   Mr. Justice Trunkey

delivered the opinion of the court, May 2d 1881.

The defendant moved the court “ to quash the first count of said indictment, because he is charged therein with the commission of three separate felonies which motion was refused. Whether its refusal was error must be determined from the count itself, without reference to the evidence subsequently given. It may be noted that there is neither exception nor assignment of error to the receiving of testimony offered to establish the said count, nor to the instructions of the court in submitting the evidence relating thereto, and, therefore, there can be no review of the rulings or instructions respecting such evidence. The count charges the defendant with the stealing of goods, the property of Elizabeth Evans; of other goods, the property of Mary N. West; and of other goods, the property of Sarah flannum, at a certain time and place. It closely follows the form of an indictment at common law, for stealing the property of different persons: 2 Chit. Cr. L. *960; Whart. Pr. of Indict. 416.

It is well settled that distinct offences cannot be joined in the same count: Hutchinson v. Commonwealth, 1 Norris 478; Commonwealth v. Bartilson, 4 Id. 482; Kilrow v. Commonwealth, 8 Id. 489. Duplicity in a declaration consists in joining in one count, different grounds of action, of different natures, or of the same nature, to enforce a single demand. Similar to this is duplicity in an indictment, it is the joinder of two or more distinct offences in one count. The criminal law never permits this. But one offence may be committed at the same time and place to the injury of two or more persons, and the. offender may be indicted therefor. A man may be indicted for the battery of two or more persons in the same count; or for a libel upon two or more persons, when the publication is one single act, without rendering the count bad for duplicity. In felonies also, the indictment may charge the defendant in the same count with felonious acts with respect to several persons, if it was all one transaction: 1 Bish. on Crim. Pro., (1st ed.) sects. 189, 192. In Reg. v. Giddins and Others, 1 Car. & Mar. 634, the indictment, consisting of only one count, charged the prisoners with assaixlting G. P. and H. P., and stealing from G. P. two shillings, and from H. P. one shilling and a hat. The defendants contended the felonies were distinct, and moved that the prosecution be put to election which he would go upon; but it was ruled that the assaulting and robbing G. P. and H. P. at the same time constituted one transaction; the evidence was received and the defendants convicted. If a person shoot at two persons, intending to kill one, or regardless which he might kill, he may be convicted on an indictment charging a joint assault on both: Commonwealth v. McLaughlin, 12 Cush. 615.

If the property of several persons be stolen at one time, the whole may be considered as one taking, and will amount to grand larceny: 2 Chit. Cr. L. *924. A count charging two distinct offences will be quashed on the defendant’s motion ; but a count may join the larceny of several distinct articles belonging to different owners, when the time and place of taking of each are the same: 1 Whart. Crim. L., sects. 382, 391. In a recent well considered case it was held, “ Where several articles of property are stolen at the same time, the transaction being the same, the whole, although they belong to different owners, may be embraced in one count of the indictment, and the taking thereof charged as one offence:” State v. Hennessy, 23 Ohio St. R. 339; see State v. Nelson, 29 Me. 329.

Wo see no reason for departure from the current of authority. As the case comes, the evidence can no more be considered now than when the motion to quash was made. That motion had to be disposed of before the evidence could be heard, and it was rightly denied.

The second assignment of error is intended to gainsay the jurisdiction of the Court of Quarter Sessions to try a person charged with the crime of receiving stolen goods, knowing them to have been stolen. Before and since the Crimes’ Act of 1860, it has been common in this state in indictments for larceny to add a count charging the crime of knowingly receiving stolen goods, and to try the offender so charged in the Quarter Sessions. The offences of stealing and knowingly receiving stolen goods belong to the same class of crimes, and may well be united in the indictment, and often must be if justice is to bo administered; for the proof may not sustain the charge of larceny, but would that of knowingly receiving stolen goods, and, therefore, it is the common practice to charge both offences in the indictment: 2 Archb. Cr. Prac. & Pl. (8th ed.) 1164 n. It is contended that the eighth paragraph of the thirty-first section of the Act of 1860, Pamph. L. 438, gives exclusive jurisdiction to the Court of Oyer and Terminer to try a person charged with receiving stolen goods. The paragraph is as follows : All persons charged with the second or any subsequent offence of receiving, harboring or concealing any robber, burglar, felon or thief, or with the crime of receiving or buying any goods or chattels, which shall have been feloniously taken or stolen, knowing the same to be so taken or stolen.” This is part of the section enumerating the crimes of which the Court of Oyer and Terminer shall have exclusive jurisdiction; and the whole paragraph might well be construed as relating to second or subsequent offences. However, there is no occasion now for its construction. The entire section is a re-enactment of sections 14 and 15 of the Act of 1836, Pamph. L. 784. Prior to said re-enactment, it was decided that exclusive jurisdiction was not vested in the Court of Oyer and Terminer to try a person charged with receiving stolen goods, knowing them to have been stolen, by section 15 of the Act of 1836, and that the Quarter Sessions had jurisdiction to try said crime: Holmes v. Commonwealth, 1 Casey 221. It is a settled rule of interpretion that “ words and phrases, the meaning of which in a statute has been ascertained, when used in a subsequent statute, are to be understood in the same sense.” How much stronger the reason for holding that where the meaning of a statute has been judicially determined, its subsequent enactment in a revision of the statutes, is in the sense of the adjudication. To rule otherwise could he nothing less than setting aside its intendment by judicial repeal.

The fourth and fifth assignments would he well taken had not the defendant made the questions therein stated pertinent in cross-examination of the witness. On behalf of the defendant his father testified in chief, that he gave the defendant money every time he asked for it, and that he gave him money in July. If this was for any purpose it was to 'show absence of motive because the son was not'in want of money by reason of his father’s supplies. It was' competent to ask the same witness if the defendant was not in need of money and owed pressing debts. There had been no offer by the Commonwealth to prove the defendant’s pecuniary condition as evidence of motive for commission of the crime. The defendant attempted to disprove motive by showing that money was furnished for his wants, and he cannot complain of pertinent cross-examination.

The only remaining assignment which was pressed, charges error because of alleged remarks by counsel in summing up to the jury. Whether the remarks were proper or improper cannot here be determined; it is plain that they are altogether dehors the record.

Judgment affirmed.

June 6th 1881, Per Curiam. — It is ordered that the judgment of this court be amended by adding thereto the following:

And it is further ordered that Chester B. Fulmer, the plaintiff in error, be remanded to the end that the sentence of the court below be executed, and that he be confined according to said sentence, for the residue of the term which had not expired on the 27th day of February 1880, the date.of suspension of sentence; and that the record be remitted that the sentence and this order be carried into effect.


text:
    Wilson et al. versus Silkman.
    1. Where a man transfers either real or personal property to his wife, the presumption is that it is a gift from him to her.
    2. Where a husband oonfesses judgment to a trustee in favor of his wife, it is necessary for the wife, in a contest with her husband’s creditors whose debts existed when the judgment was confessed, to establish that the judgment was given to her bona fide to secure a debt of tbe wife from the husband from the separate estate of the wife; in the absence of such proof the judgment will be deemed fraudulent and void as against such creditors.
    March 29th 1881.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas, of Lackawanna county: Of January Term 1881, No. 163.
    Feigned issue, wherein Wilson and others were plaintiffs and Catherine Silkman was defendant, to determino the validity of a judgment for $11,755.12, confessed by Daniel Silkman to William Shoemaker, in trust- for Catherine Silkman, his wife.
    Upon the trial, before Hand, A. L. J., the plaintiffs proved the following facts-:
    On June 4th 1878, Daniel Silkman confessed a judgment for $1000 to Almira and Sarah A. Silkman, which was the first lien upon his property. This judgment was originally entered in Luzerne county; it was transferred to Lackawanna county, and under an execution issued in the latter county, the fund in dispute was produced by a sale of his real estate. On June 10th 1878, Daniel Silkman executed a judgment note for $11,548.50 to William Shoemaker, in trust for Catherine Silkman, his wife, on which note judgment wras entered in Lackawanna county, November 23st 1878, in favor of Shoemaker, in trust for Catharine Silkman, for $11,755.12. Subsequently, in 1878 and 1879, Wilson and others obtained judgments against Daniel Silkman for debts which existed on and prior to June 10th 1878. The evidence showed that in June 1878, the firm of Silkman, Winton & Co., of which Daniel Silkman was a member, was indebted to the verge of insolvency, though their credit was at that time fair, and they suspended in the following September. On December 12th 1879, execution was issued on the said judgment of $1000, m favor of Almira and Sarah A. Silkman, under which certain real estate of Daniel Silkman was sold at sheriff’s sale, February 10th 1880, and purchased by Mrs. Catherine Silkman, wife of Daniel Silkman, for $10,150. Mrs. Catherine Silkman received, the same day, an assignment of the Almira and Sarah A. Silkman judgment, under which the execution issued, and at her request the sheriff’ made a special return, that he had taken “the receipt of Catherine Silkman for $9990, being the amount of bids on the within described real estate, less $160 costs, it appearing that the said Catherine is a lien-creditor of the said defendant, and as such, she is entitled to receive said amount as the proceeds of such sale, as by reference to certified list of liens hereunto 'attached, will more fully appear.”
    Wilson and others filed exceptions to this return; the matter was referred to an auditor, and, pending the reference, the court, on the petition of Wilson et ah, awarded this issue, which was framed in two counts, the first involving the question whether Silkman was at the time of giving the confession of judgment, justly indebted to his wife in the sum for which it was confessed, the other, whether the judgment was given with intent to encumber his real estate and hinder, delay and defraud his creditors.
    The defendant offered no evidence.
    The plaintiff presented the following points :
    1. That when a judgment is taken in the name of a trustee for a wife against her husband, it is necessary' for the wife, in a contest with creditors of the husband (as in this case), to establish that the judgment was taken bona fide, to secure a debt to the wife from the husband from moneys of the separate estate of the wife. In the absence of such proof the judgment must be regarded as fraudulent and void as against such creditors. Answered in the negative.
    2. That under all the evidence in this case the verdict of the jury must be in favor of the plaintiff.
    Ans. “Refused.”
    The defendant presented, inter alia, the following points:
    1. That there is no evidence to warrant the jury in finding that tne said Daniel Silkman was not, at the time of the making and delivery of the judgment note in question, justly indebted to said Catherine Silkman in the sum mentioned therein, and was so indebted at the time his real estate was sold.
    Ans. “Affirmed.”
    3. That there is no evidence to sustain the allegation upon which the issue in this case was granted.
    Ans. “Affirmed.”
    The court charged the jury, inter alia, as follows:
    “ We have been requested on the part of the plaintiffs in this case to give you binding instructions that your verdict must be in favor of plaintiffs. * * * We decline to charge you as they request us to charge for the following reasons : Because the issue as framed in this case puts the burden of proof upon the plaintiffs to show fraud either directly, or such a chain of circumstances as will raise a question of fraud for you, and upon the examination of the testimony we are satisfied that there is nothing in the testimony showing any fraudulent transactions. * * * But notwithstanding the relation of these parties, after a full examination of the evidence, we find nothing either by positive or negative testimony from which fraud can be inferred so far as thfe case is concerned. There is no evidence here at all with reference to the poverty of this defendant; there is no evidence here at all of any attempt at collusion; there is no evidence, as we can discover in this whole case of any transaction which of itself the court can put its hands on and say it is a badge of fraud, or is sufficient to leave it as a question of fact to you. We have, therefore, taken this case away from the jury, and given binding instructions that, the verdict must be in favor of the defendant. * * * Therefore we say to you when the court lay down the law to the jury, they are bound to take it from the court and follow their instructions. Your verdict in this case will be for the defendant.”
    Verdict accordingly for the defendant, and judgment thereon.
    The plaintiff took this w'rit of error, assigning for error the answers to points and charge of the court as above given.

      R. W. Archbald and S. B. Price, for the plaintiffs in error.
    Upon proof by the plaintiffs that they wore existing creditors of Daniel Silkman, at the time of the confession of this judgment to his wife, and that Daniel Silkman, was at that time in failing circumstances, the burden of proof was upon the wife to show a valid consideration for the judgment: Grabill v. Moyer, 9 Wright 530; Keeney v. Good, 9 Harris 355; Black v. Nease, 1 Wright 440; Baringer v. Stiver, 13 Id. 129; Gault v. Saffin, 8 Id. 307; Aurand v. Schaffer, 7 Id. 363

      A. H. Winton (with him E. N. Willard), for the defendant in error.
    Under the form of the issue and the pleadings the burden of proof was upon the plaintiff in the issue to show that there was no sufficient consideration for the judgment, or that it was intended to defraud the plaintiffs. The judgment note was given in accordance with the provision of the Act of April 15th 1851, sect. 22, Purd. Dig. 1007, pl. 21. Every presumption is in favor of the bona fides of the judgment, and the party alleging fraud must prove it. Business dealings between husband and wife are now treated just as are the transactions between ordinary debtors and creditors ; as, in the latter case, when the bona fides of such transactions is attacked, the fraud alleged must be clearly and distinctly proved, so likewise in the former: Rechling v. Byers, 9 W. N. C. 359; Wingard v. Fallon, Id. 163; Gicker’s Admr’s v. Martin, 14 Wright 138; Roberts v. Guernsey, 3 Grant 237.
   Mr. Justice Gordon

delivered the opinion of the court, May 2d 1881.

On the 10th of June 1878 Daniel Silkman executed his judgment-note to William Shoemaker in the sum of $11,755.12 in trust for his wife, Catharine Silkman. On this note, judgment was entered on the 21st of November 1878. At the time of the execution of the note above mentioned, Silkman was a member of the firm of Silkman, Winton & Co., which firm was largely indebted, so largely, indeed, that it appears from the evidence it was unable fully to liquidate its obligations, in other words, it proved to be insolvent.

It appears, further, that on the 4th of June 1878, a judgment was éntered in the. Common Pleas of Luzerne county against Silk-man, and in favor of Almira and Sarah A. Silkman, in the sum of one thousand dollars. This judgment was transferred to Lackawanna county on the 12th of December 1879; upon it execution was issued, a levy made upon the property from which the fund in controversy was raised, and sold by the sheriff to Catharine Silkman, the defendant, for the sum of $10,150, she having on the same day received an assignment of the judgment on which the sale was made. She being thus the owner of the first, as well as the second judgment against the property, claimed the right to have them receipted upon her bid. To prevent this 'the plaintiffs, creditors of Silkman, Winton & Co., who in the mean time had obtained judgments upon their claims, interposed, and at their instance, the issue now trying was framed.

Prom this summary of facts, about which there is little or no dispute, we turn to the legal question on which the case was determined in the court below.

Several assignments of error have been presented for our consideration, but as the ruling of the court below on the plaintiff’s first point in effect involves the whole controversy, we may confine our attention to it alone. That point reads as follows: “ When a judgment is taken in the name of a trustee for the wife against the husband, it is necessary for the wife, in a contest with creditors of the husband, as in this case, to establish that the judgment was taken bona fide to secure a debt of the wife from the husband from moneys of the separate estate of the wife. In the absence of such proof, the judgment must be regarded as fraudulent and void as against such creditors.”

The point thus put was refused by the court.

We hesitate not to say that in this the court made a mistake. Under the circumstances of the case, the affirmative was upon the defendant. It was for her to show that the judgment executed to the trustee for her use by her husband represented the proceeds of he'r separate estate. The contest was with her husband’s creditors, and if the judgment was not founded upon a valuable consideration, however good it might be against him or his estate, it would be fraudulent and void as to contemporaneous creditors.

Before the Act of 1848, the marriage contract vested the right to the personal property of the wife in the husband. She had no such thing as a separate and independent personal estate. Since that act, she may not only continue to own and hold the property she had at the time of the marriage, but she may, during coverture, acquire a separate estate.

In favor of such an estate, however, there is no legal presumption, but the contrary ; the husband is presumed to be the owner of the property of which ho and his wife have the joint possession. Does she purchase lands or goods, their price is presumed to come from the pockets of the husband; or does he transfer to her property, real or personal, it is presumed to be a gift from him to her. Thus the Act of 1848, whilst it makes it possible for a feme covert to have and enjoy a separate estate, raises no presumption in favor of the existence of such an estate. She must affirmatively establish that fact, and this, not only because of the ease with which the husband’s creditors might otherwise be defrauded, hut because, ordinarily, it is impossible for her to have a possession separate and distinct from her husband; hence one of the most obvious and prominent marks of proprietorship is, in her case, not only wanting, hut such possession being usually attributed to the husband, a presumption of his ownership naturally follows by which his credit is increased. Even in a case where a widow claims property as against her husband’s estate, it has been held “ that she must show by evidence which does not admit of a reasonable doubt, either that she owned it at the time of her marriage, or else acquired it afterwards by gift, bequest or purchase. In ease of a purchase after marriage, the burthen is upon her to prove distinctly that she paid for it with funds which were not furnished by the husband.” Black, J., in Gamber v. Gamber, 6 Harris 363. Again it was said by the same learned justice in Keeney v. Good, 9 Harris 349, “ To bring the property of a married woman under the protection of the Act of 1848, it is made necessary by the letter, as well as by the spirit of the statute, to prove that she owns it. She must identify it as property which was hers before marriage, or prove how she came by it afterwards. Evidence that she purchased it, amounts to nothing unless it be accompanied by clear and full proof that she paid for it by her own separate funds. In the absence of such proof, the presumption is a violent ono that her husband furnished the means of payment.”

Like doctrine will he found in Gault v. Saffin, 8 Wright 307, and many other cases to which we need not revert.

Applying the rule thus established, to the case in hand, and the error of the court below is obvious. Here is the confession of a judgment in the sum of S11,000 by a husband to a wife, at a time when he was in fact insolvent. She furnishes no proof that she had so much as a single dollar to invest in that or any other kind of property, and yet by all rule she was bound to show by clear and full proof that it was confessed to her for a valuable consideration proceeding from her own separate estate, acquired either independently of her husband, or, if from him, at a period antecedent to his indebtedness. The inquiry is not only a legal hut a natural one, How did she 'get the right to demand so large a sum of money from her bankrupt husband ? If, indeed, she has nothing else to depend upon than the presumption arising from his act in the confession of the judgment, she is leaning upon a broken staff, for the husband’s confession of a judgment to his wife is, prima facie, little better than the confession of a judgment to himself.

The presumptions are all against the defendant’s right to the money in controversy, and unless she proves to the satisfaction of a jury, that the consideration for the judgment against her husband was money, or other property, from her separate estate, she cannot maintain her claim.

The judgment is reversed, and a new venire ordered.