author: Mr. Justice Sterrett

text:
    Brandt and Hummel versus The Commonwealth.
    1. Under the forty-fourth section of the Criminal Procedure Act one who is an accessory before the fact may be charged as a principal in an indictment for murder: Campbell v. The Commonwealth, 3 Norris 187, followed.
    2. Where several men are indicted for murder, and they waive a demand for a separate trial, it is competent for the Commonwealth to introduce any evidence that tends to prove the guilt of any one of the defendants, although it might incidentally prejudice the others on trial.
    3. Several men wore indicted for murder. It was alleged by the Commonwealth that two of these men murdered the deceased in furtherance of a nefarious speculation in human life; that while two had committed the murder, the others had procured policies of insurance on the life of the deceased, and hired the two to commit the deed in order to procure the insurance money. They all elected to be tried together. Held, that it was competent for the Commonwealth to introduce any testimony that tended to prove the guilt of either of the parties on trial.
    4. The ingredients of murder in the first degree proved in this case.
    January 5th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Oyer and Terminer of Lebanon county: Of May Term 1880, No. 38. Certified from the Middle District.
    Indictment of Israel Brandt and Josiah Hummel for the murder of Joseph Raber.
    The following was the form of the indictment:
    “ In the Court of Oyer and Terminer and General Jail Delivery for the county of Lebanon, of April Term A. D. 1879.
    Lebanon County ss.
    The Grand Inquest of the Commonwealth of Pennsylvania, inquiring in and for the body of the county of Lebanon, upon their oaths and affirmations respectively, do present: That Charles Drews, yeoman, late of the county aforesaid, Frank Stichler, yeoman, late of the county aforesaid, Henry Wise, yeoman, late of the county aforesaid, Josiah Hummel, yeoman, late of the county aforesaid, Israel Brandt, yeoman, late of the county aforesaid, and George Zechman, yeoman, late of the county aforesaid, to wit: on the seventh day of December, in the year of oür Lord one thousand eight hundred and seventy-eight, at the county aforesaid, and within the jurisdiction of this court, with fpree and arms, &c., in and upon the body of one Joseph Raber, in the peace of God and the said Commonwealth, then and there being, feloniously, wilfully and of their malice aforethought, did make an assault, and him, the said Joseph Raber, then and there feloniously, wilfully and of their malice aforethought, did kill and murder, contrary to the form of the Act of the General Assembly in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.”

      At the trial before Henderson, A. L. J., the following facts were disclosed by the testimony : In the autumn of 1878, Joseph Raber, a man about sixty years of age, lived in a shanty on the Blue Mountain, in Indiantown Gap, Lebanon county. He was very poor, and was engaged in no business, depending entirely for support on his daily labor and the charity of his neighbors. Israel Brandt lived about three-fourths of a mile from Raber’s shanty at a place known as St. Joseph’s Spring. Brandt’s house- had been used as a hotel at some previous time, but-at this time was not licensed. Charles Drews lived about two hundred yards from Brandt. Henry Weise, Josiah Hummel and George Zechman lived down the valley, along the mountain, from four to six miles away.
    In the latter part of July 1878, Israel Brandt and Josiah Hummel (the defendants) together with Henry Weise and George Zechman, agreed to procure the insurance of Raber’s life for their benefit. They accordingly applied to George W. Scwéinhard, an insurance agent, living in Lebanon, for the purpose of having applications made out to procure insurance on the life of Raber. Schweinhard met Brandt and Weise, with Raber, at the house of Brandt in the beginning of August, at which time applications were made out for insurance, and the necessary entrance fees paid by Weise. Some time after, when the applications had been favorably considered by the insurance companies and policies had been issued, on receipt of a letter from Weise, Schweinhard met Brandt, Hummel, Weise, Zechman and Raber, at Lebanon, “for the purpose of having the assignments made of the policies that were on hand, and having more applications taken out” on the life of Raber. At that time the policies then on hand were assigned to the parties above named, by Raber;' among others, a policy for $2000 in the Home Mutual Life Association to Josiah Hummel, and a policy for $1000 in the New Era Life Insurance Company to Israel Brandt. There were two other policies on hand amounting to $5000, one of which was assigned to George Zechman and the other to Henry Weise, making the whole amount of insurance at that time on hand, and assigned to the said parties, $8000. At the same time they told Schweinhard that Raber was a very poor man, and that they had agreed to support him during life and see him decently buried after his death.
    The insurance having been thus secured, the parties met frequently at Brandt’s ; were often seen together; sometimes one or two; sometimes more, on the public road going to and from the direction of Brandt’s, and differed from others who were present in their actions, by calling each other aside and consulting together apart. This conduct was noticed, and continued for and during three or four months before the death of Raber, after which it ceased.
    Charles Drews, the neighbor of Brandt, had no insurance upon the life of Raber, but proposed to Frank Stichler that he should assist him to kill Raber, and when Stichler inquired why he wished him killed, he gave as a reason that he was highly insured. The plan then agreed upon was to drown him in Kitzmiller’s dam. Raber was to be asked to go with them to fish in the dam. They were to take the flat. Drews was to push Raber off the flat, and then Stichler was to pole over him and drown him ; after which Stichler was to jump into the water, get wet, and then go to Michael Kohr’s, who lived near the dam, for a change of clothes, and say that he had gotten wet in trying to save Raber from drowning. Drews was to give Stichler $100 for this service. This was about two weeks before the alleged murder of Raber. Brandt and Hummel visited the dam together about this time. Brandt afterwards urged Stichler to comply with Drews’s request, saying that Drews was to get $300 for doing it, and that if Stichler helped, he, Brandt, would give him -a good share, and each of the others would have to do so also. He further told Stichler that they had this thing going on for three months; that they first intended to chloroform him, but that he, Brandt, had struck upon the plan to drown him. Frank Stichler did not assist, and after the death of Raber, Brandt told him that if he said anything about the matters he had told him, he, Stichler, would be a dead man. In the latter part of November, or the beginning of December 1878, Joseph F. Peters, a son-in-law7 of Drews, who had before that time enlisted in the army of the United States, returned home, and took up his residence with Drews. A short time after he arrived — perhaps within a day or two — Drews told him, while chopping wood on the mountain, that he was to receive $1500 for killing Raber from Brandt and Hummel, amongst others, and wanted him to join in the killing. About the same time, Brandt quarrelled with Joseph Peters's wife, because, as he said, she prevented Drews and Stichler from killing Raber, and Weise also came to Drews and gave him notice that he must kill Raber before Friday or Saturday of that week. On the 7th of December 1878 Drews went to Raber’s shanty and asked him to come down to his house for tobacco. Drews left for his home, and Raber followed him. When Raber arrived at Drews’s he was induced to go over to Kreiser’s, which necessitated the crossing of Indiantown Creek. The creek was crossed by means of a plank, and at the plank was about twelve feet wide and seventeen inches deep. Drews and Stichler were seen accompanying him down from the house of Drews, through the fields, until they reached the creek. Stichler went first, Raber next, and Drews brought up the rear. When Raber reached the middle of the plank, crossing the creek, Stichler turned around and put his hands on Raber’s shoulders, tripped him, and threw him into the creek. This was between 4 and 5 o’clock in the afternoon. In a few minutes Drews and Stichler were seen returning to the house of Drews without Haber. They entered the front room, and Stichler began to take off his clothes, which were wet. He directed Mrs. Drews, who supplied him with dry clothes, to hang his wet ones up to dry, and if any one came in, to remove them, so that they would not be seen. Both Stichler and Drews spoke of the difficulty they had experienced in holding the old man down and drowning 'him. About 6 o’clock the neighbors were notified by Brandt and his son that Baber was drowned in the creek. Perhaps a dozen assembled and looked at the body of Baber, which was lying in the water, but they did not remove the body. Baber was dead.
    Hummel and Brandt went to Lebanon for the coroner that night. Brandt became considerably intoxicated, and boasted to the coroner that they had insurances on the life of Baber to the amount of $20,000, and offered him $20 each to make a good report.
    Some days after the murder, Hummel told Drews, in a conversation about Baber, that when he got his money for drowning Baber, he had better leave that part of the country, or the people might find it out. Drews also detailed to Hummel the story he gave out as to how Baber was drowned, and cautioned Hummel about letting anything be found out. Hummel assured him it should not be found out through him. Drews also, in a conversation with his wife, after the drowning, in the course of which she expressed some doubt as to his getting the money that had been promised to him for killing Baber, said that there was no doubt about his getting it; they had bound themselves together by too hard a bargain, and the first who backed out would be shot. This had been agreed upon before they insured Baber.
    On the 10th of December, Baber was buried, and on the 13th of December, Schweinnard met Brandt, Hummel, Weise and Stichler at Brandt’s house, and made out proofs of death for Brandt, Hummel and Weise, on the policies they held, or claimed to hold. At this time the expression of Stichler was made, which is made the 3d assignment of error below.
    Information was afterwards made against Charles Drews, Frank Stichler, Israel Brandt, Josiah Hummel, Henry Weise and George Zechman, for the murder of Baber. They were arrested, indicted and elected to be tried together, and were found guilty of murder in the first degree. Sentence of death was pronounced, and then Brandt and Hummel sued out this writ of error.
    The following assignments of error will show the various questions raised in the ease.
    1. The court erred in admitting the following offer of testimony on the part of the Commonwealth: Lena Peters having testified that her father had stated in her presence and hearing that he was to be paid $1500 for drowning Baber, it was proposed to ask her: “Please tell from whom your father said he was to have the $1500 for drowning Raber.” This for the purpose of showing, in connection with the testimony already in the case against Brandt, Hummel and Weise, the motive for drowning Raber, and showing the conspiracy of the said Drews, Stichler, Brandt and Weise, Hummel and Zechman, the defendants, to murder Raber and secure the proceeds of the insurances on Raber’s life.
    Objected to. 1st. That the testimony is inadmissible for the purpose of proving a conspiracy, it being one of the acts of a conspiracy already formed. The Commonwealth has neither proven a conspiracy nor identified any persons connected therewith. Until that has been done, the evidence cannot affect any of them, but co-conspirators, of which there is no evidence at all. 2d. To admit this testimony at this time would be presuming a conspiracy, of which there is no evidence. 3d. That for the purpose of showing a motive in Drews for the commission of the alleged act, sufficient has already been received in the admission of evidence that he was to receive money for the commission of the alleged crime.
    Per. Curiam. — “ It is true this testimony does not tend to establish a conspiracy ; but it is certainly competent and relevant as to Drews, and in view of the testimony already heard may be as to some of the others, if not all; we cannot anticipate the answer. It is admitted.”
    The defendants excepted and bill sealed.
    Q. Please tell us from whom your father said he was to have $1500 for drowning Raber ? ■ A. To have it from Weise, Hummel, Zechman and Brandt for the drowning of Raber.
    2. The court erred in admitting the following offer of testimony on the part of the Commonwealth in the evidence of Elijah Stichler : It is proposed to prove by the witness that Brandt asked him to kill Raber, and said to witness that what Drews promised witness to kill Raber was sure to be paid; that he (Brandt) would give witness a nice thing besides; that Brandt’s three co-insurérs first intended to kill Raber with chloroform ; that they had it under consideration for three months ; that after Raber’s death Brandt threatened the taking of the life of the witness if he divulged anything ; that Brandt told witness that he would have to go to Zechinan to get the one hundred dollars offered by Drews. This for the purpose of showing the guilt of Drews and Brandt, and in connection with the other testimony in the case, and to be followed by other testimony showing a conspiracy and procurement on the part of Hummel, Weise and Zechman to have Raber murdered.
    Objected to. 1st. This testimony is inadmissible for any other purpose than to affect Brandt and his connection with the supposed crime. 2d. That it is inadmissible to prove a conspiracy on the part of any or all of these defendants. 3d. That there is no proof of such a character as would in law establish a conspiracy or confederation amongst any or all of these defendants, as would allow the court to permit testimony of any one of them to connect them or identify them with the alleged crime. 4th. That so far as Zechman is concerned, there is no proof of his having entered into any unlawful conspiracy with either or any of the defendants, or at any time before, the death of Raber entered into any conspiracy already formed of which there is proof; the testimony offered in regard to him is clearly incompetent, and therefore inadmissible. 5th. The testimony is an attempt to show that Brandt, one of these defendants, offered witness money to kill Raber, which is an entirely different transaction from the one now before the court under the indictment, and therefore is inadmissible to affect Brandt or any or all of the other defendants.
    Per Curiam. — “ The evidence is admitted for the purpose of the offer, and will be limited in its effect only to those of the defendants who may be connected with the crime by legal and competent evidence.”
    The defendants excepted and bill sealed.
    3. The court erred in admitting the following offer of testimony on the part of the Commonwealth in the evidence of G. W. Schweinhard: It is proposed to prove by witness that he saw all the parties together at the stable of Brandt, excepting Zechman, after the death of Raber, and that Frank Stichler said he would have to have it to day, as he could not wait any longer. This in connection with the testimony of Lafayette Kreiser, who testified that he saw them at the same time, and that they were talking about money, as a circumstance in the chain to show the guilt of the defendants there present of the crime charged.
    Objected to. 1st. In order to prove the guilt of Hummel, Weise and Brandt, or Zechman, they must first show that these men or one of them entered into a conspiracy with Drews and Stichler to commit the alleged offence; and inasmuch as this was after the death of Raber, the declarations of Stichler are not evidence, and, therefore, are inadmissible. 2d. That if the expression was made by Stichler, it is unconnected with any fact tending to establish any crime against any of the defendants, and is therefore inadmissible. 3d. It being evident, from the offer itself, that it was only a detached fragment of a conversation, without any reference or relevancy to the commission of the alleged crime, and would be only giving to the jury a part of the conversation, leaving them to conjecture or imagine as to what it referred to; therefore it is incompetent and inadmissible.
    Per Curiam. — This, in connection with the declarations of Brandt, Weise and Hummel already in evidence, is a circumstance. It may be slight of itself, still as to those present at the time, it is competent to go to the jury. Evidence admitted.
    The defendants excepted and bill sealed.

      4. The court erred in charging the jury as follows:
    “Did these parties, or any of them, conspire with Drews and Stichler to kill Raber ? Are they connected in this guilty enterprise by their own declarations ?
    “Lena Peters testifies that Weise said in her presence ‘that father should hurry up the drowning of Raber before Friday or Saturday.’ As to Brandt, she says that he said, ‘ that I was the fault that Stichler and Drews didn’t drown Raber sooner.’ This was about a week before Raber’s death.
    “You will also recall the testimony of this same witness (Lena Peters) as to the conversation between Hummel and her father. She says Hummel said : ‘ That as soon as father had his money he should go away, or else the people would find it out;’ and that father said to Hummel that he should be careful what he said about it, and Hummel replied, ‘Yes, nobody would get anything out of him.’ The subject of this conversation, you. will remember, was the death of Raber. The whole of the testimony of this witness should be carefully scrutinized, and these declarations testified to by her should be received by you with great caution. You should be well assured of its truth in the light of the surrounding circumstances of this case, and of the credibility of the witness, before you give to it the effect of truth; for if it is true it intimately associates and connects all three of these prisoners with Charles Drews. Do you believe Lena Peters ? Now from this point you will examine the evidence, and perhaps you may have no difficulty, if you start with the truth, the conviction of the truth, of this evidence of Lena Peters in connecting at least these three prisoners — Josiah Hummel, Henry Weise and Israel Brandt — with Charles Drews and Frank Stichler, in the conspiracy to murder Joseph Raber, if you find from the evidence that he was murdered by Drews and Stichler.”
    5. The court erred in not arresting the judgment for the following reason assigned in support of the motion in arrest of judgment, viz.:
    The six defendants were indicted jointly for the crime of the murder of Joseph Raber, as principal felons, while the evidence, if true, disclosed the fact that Charles Drews and Frank Stichler only were actually and constructively present at the time of, and. engaged in, the alleged killing; and that Josiah Hummel, Henry Weise, Israel Brandt and George Zeehman, if connected with the crime, were accessories, who had conspired with the said Charles Drews and the said Frank Stichler to kill the said Joseph Raber, and there being no count in the indictment alleging and averring that these four defendants, to wit, Hummel, Weise, Brandt and Zeehman were accessories, they therefore could not be convicted as principal felons and judgment -must be arrested.

      6. The ingredients necessary to constitute murder in the first degree were not proved to exist.

      J. P. S. Gobin and W. M. Derr, for plaintiffs in error.
    The court gave a binding instruction to the jury in their direction n regard to the testimony of Lena Peters. The evidence of Lena, with reference to Hummel, was, that after the death of Raber the conversation took place, and there was nothing which Hummel said to indicate any previous connection with the matter. There was no admission or promise to pay from each of them, and no evidence tending to show the minds of all moving with a common design to a common end, and in the absence of such proof, the admission of this testimony made such evidence against all the defendants, simply from what Drews said Brandt told him, and not from what each of them had agreed to pay to him. Yet, coming as it did, it was taken for - granted that it was the separate admission of each to Drews that they would pay' the amount, and yet the court said that it is true it does not establish a conspiracy, but is competent and relevant as to Drews, and in view of the testimony already heard, may be as to some of the others. The effect of this evidence went to the jury as an admission of a conspiracy, and the amount to be paid by each of them towards the common purpose. The admission of testimony of Frank Stichler, was equally wrong. The court, without stating that under the testimony a criminal enterprise, in which all or any of them had .been connected, was made out, permitted this testimony to weigh against all of the defendants, when -it was simply a conversation had by witness with Brandt alone in regard to some different mode of killing Raber, and in regard to his co-insurers, without any evidence showing his authority from them. We cannot discover in this case the ingredients of murder in the first degree.
    We contend that the case of Campbell v. Commonwealth, 3 Norris 187, does not apply to this case, and that the authorities on which that case was apparently ruled were those founded on particular statutes in the several states, and that we have no similar law. The indictment should set out the substantive offence with which the accessory is charged.

      Jacob G. Adams, District Attorney, Grant Weidman and O. P. Miller, for the Commonwealth.
    The jury were bound, if they believed the testimony of the witnesses, to find that the ingredients necessary to constitute murder of the first degree were proven to exist. Was the indictment legal by which six defendants were jointly indicted, without averring in a separate count in the indictment, that Hummel, Weise, Brandt and Zechman were accessories before the fact ? This proposition, in all its breadth and magnitude, was before this court in the case of Campbell v. Commonwealth, supra, and the same form of indictment was there used as in the case under consideration. And this position is supported and sustained by the author of Archbold’s Criminal Practice and Pleading, vol. 1, p. 71. After citing the statute of 11 & 12 Viet., chap. 46, sect. 1, of which our act, sect. 44 is an exact transcript, he says, “ In all cases of felony, therefore, the accessory is punishable in the same manner, precisely, as the principal felon.” “ And he may now be indicted as a principal — that is, he may be charged in the indictment with having actually committed the offence as principal in the first degree.”
    February 9th 1880.
    Where several are tried together, competent testimony against one cannot be excluded on the ground that it may prejudice the rest: Fife et al. v. Commonwealth, 5 Casey 437.
   Mr. Justice Sterrett

delivered the opinion of the court,

The indictment in this case is accurately drawn in the short form authorized by the Criminal Procedure Act. It charges the plaintiffs in error and four others, as principals, with the murder of Joseph Raber, alleged to have been committed on the seventh day of December 1878.

The right which each of the accused had to demand a separate trial was waived; they elected to be tried together and were all convicted of murder of the first degree. A new trial was granted to George Zechman; sentence was suspended as to Henry Weise, and judgment was pronounced against the other four — Charles Drews, Frank Stichler, Israel Brandt and Josiah Hummel. The writ of error was taken by the two last named.

The testimony of the Commonwealth, if believed, tended to prove that Raber was deliberately murdered by two of the prisoners, in furtherance of a nefarious speculation in human life, in which at least some if not all of the others were involved. It was not alleged that they were all present and actually participated in the killing, but it was claimed that while Drews and Stichler actually committed the murder the others were accessories thereto before the fact; that they had procured policies of insurance on the life of Raber, and then hired the others to kill him in order that they might realize the insurance money. If the jury believed, as they doubtless did, the testimony of the principal witnesses for the Commonwealth, they could entertain no doubt as to the guilt of Drews and Stichler, or the motive by which they were actuated. The testimony of one witness was to the effect that, about two weeks before the murder, Drews proposed to give him $100 if he would assist in drowning Raber in Kitzmiller’s dam, and explained to him that it could be accomplished by inviting Raber to go fishing with them in a flat, and then throw him out and run the flat over him. Another testified in substance that Drews said he was to receive $1500 for killing Raber, and asked him to assist; that, on the evening that Raber was drowned, he saw him in company with Stichler and Drews leaving the house of the latter and going through the field to the creek near by; that when Raber reached the middle of the plank across the creek, Stichler, who was ahead, turned around, put his hands on Raber’s shoulders, tripped him and threw him into the water; and in a short time they returned without Raber; that both of them afterwards spoke of the difficulty they had in holding the old man down and drowning him. Such statements as these appear almost incredible, but the testimony of the two witnesses, to a portion of which only I have thus briefly adverted, was by no means all the evidence on which the Commonwealth relied. There was an abundance of other testimony, both direct and circumstantial, tending to establish beyond doubt the guilt of Drews and Stichler, and to prove that they were incited by others to the commission of the felony.

But, it is contended by the plaintiffs in error that testimony prejudicial to them was improperly admitted.

The first assignment of error relates to part of the testimony of Lena Peters, a daughter of Charles Drews. Having testified that her father had stated in her presence and hearing that he was to be paid $1500 for drowning Raber, she was asked to state from whom he said he was to receive the money. While the learned judge refused to admit the testimony, as tending to prove a conspiracy, he considered it competent and relevant as to Drews, and in view of the testimony then before the jury, he thought it might be competent as to some if not all of the others. Mrs. Peters had already testified that Weise, one of the prisoners, had said her “ father should hurry up the drowning of Raber before Friday or Saturday; that Zechman said ,he couldn’t keep up his policies any longer.” She had also testified that Hummel, in the course of a conversation with her father in regard to Raber, Fad said, “ that as soon as father had the money he should go away from the neighborhood or else the people might find it out;” that her father then said to Hummel that he should be careful what he said to the péople about it, and Hummel replied, “yes, nobody would get anything out of him.” The testimony already referred to, as to how and by whom Raber had been drowned, was also then before the jury. It was undoubtedly competent for the Commonwealth to introduce any testimony that tended to prove the guilt of either of the parties on trial. Having elected to be tried together, the accused had subjected themselves to the necessary incidents of a joint trial, one of which was the admission of competent testimony against one of them which might incidentally prejudice the others. They had no right to insist on the rejection of such testimony on that ground: Fife et al. v. Commonwealth, 5 Casey 429. On several occasions during the trial the learned judge took the precaution of saying, that declarations of some of the prisoners were not to be regarded as evidence against others, whose names were incidentally mentioned, unless their participation in the crime was shown by other competent evidence. It has been specially urged as an objection to the admission of Mrs. Peters’s testimony, that the alleged declaration of her father was made after the death of Raber. So far as Drews himself was concerned, it could make little difference whether it was before or after; but, from her answer to the question immediately preceding the offer under consideration, it would appear that it was before Raber’s death. Having testified to hearing her father say he was to get $1500, she was asked how long this was before the drowning and she replied, “ It might have been a week or two before.” Speaking of the same matter in another portion of her testimony the impression is conveyed that it was after the death of Raber. It is possible that Drews may have made the statement both before and after, and thus an apparent discrepancy in the testimony might be reconciled; but be this as it may, it was a matter for the jury, and we think there was no error in permitting her to answer the question.

For reasons already suggested we think the testimony complained of in the second assignment was properly admitted. In connection with other testimony then before the jury it tended strongly to prove the guilt of some of the prisoners ; and as to the others, it was expressly limited in its effect to those only who might be connected with the crime by other competent evidence.

The third assignment relates to the testimony of Mr. Schweinhard. The court, in admitting it, remarked that, “ This, in connection with the declarations of Brandt, Weise and Hummel, already in evidence, is a circumstance. It may be slight of itself, still as to those present at the time it was competent to go to the jury.” Keiser had testified that he saw the parties together at the same time, and heard them talking about money. He says, “ They were behind the shed and didn’t talk that anybody else should have heard it, I think.” If, as the testimony would seem to indicate, the subject of their conversation was money, and Stichler said “ I must have it to-day, I can’t wait any longer,” the circumstance, though slight in itself, might properly be considered by the jury in connection with other facts and circumstances in the case. We cannot say there was error in receiving the testimony.

It is contended that a portion of the charge embraced in the fourth assignment was in effect a “binding instruction to the jury that they must believe Lena Peters, and that it was their duty to start out with that truth.” We do not so understand the charge; nor do we think the jury could so construe the language of the learned judge, especially when it is considered in connection with what immediately precedes the expression complained ■ of. After referring to the testimony of Mrs. Peters the jury were told that the whole of her testimony should be scrutinized, and the declarations, testified to by her, should be received with great caution; that before they gave it the effect of truth they should be well assured, in the light of the surrounding circumstances, of her credibility and the truthfulness of her testimony. Having thus carefully cautioned the jury against hastily accepting her testimony as true, the learned judge appears to have assumed, for the purposes of further instruction, the possibility of their finding it to be true, and then proceeded to indicate the conclusions which, in that event, might be drawn from the evidence. Taking the charge as a whole it was not calculated either to confuse or mislead the jury. In the concluding part of it they were expressly told that none of the testimony should be lost sight of or excluded from their consideration; that the credibility of the witnesses was for them; that all the evidence was submitted to them, and as they found the truth to be so should they declare by their verdict.

The question raised by the fifth assignment of error was fully considered and determined in Campbell v. The Commonwealth, 3 Norris 187; and we see no reason to doubt the correctness of that decision. The 44th section of our Criminal Procedure Act is a transcript of the English statute, 11 & 12 Victoria, ch. 46, sect. 1. Mr. Archbold, in his Criminal Practice and Pleading (vol. 1, p. 71), after quoting the statute, says: “ In all cases of felony, therefore, the accessory is punished in the same manner precisely as the principal felon; and he may now be indicted either as a principal — that is, he may be charged in the indictment with having actually committed the offence as principal in the first degree — • or he may be indicted as for a substantive felony, or he may be indicted as accessory with the principal, at the option of the prosecutor.”

If the jury were satisfied, as they no doubt were from the evidence before them, both as to the fact of the homicide and its grade, it only remained for them to determine who of the other prisoners, if any of them, were shown to be accessories before the fact. They have declared by their verdict that the' plaintiffs in error were two of them; and in view of the testimony properly before them we cannot say they were not justified in coming to that conclusion. The theory of the Commonwealth was that some of the prisoners, including Brandt and Hummel, were associated together for the purpose of procuring insurance on the life of Haber, without any apparent motive other than to realize the insurance money payable upon his death; that as soon as they had secured to themselves, as they supposed, assignments of the policies, they set about maturing and carrying into execution a scheme for the murder of Raber; that the first suggestion was “ to chloroform him,” but finally it was determined to drown him, and for this purpose they hired Drews, who, with the assistance of Stichler, executed the plan. In support of this theory, many facts and circumstances, together with separate acts and declarations of each of the prisoners, were shown, tending to prove that while Raber came to his death by the hand of Drews and Stichler, the plaintiffs in error with others were cognisant of the intended murder; and encouraged its commission, It has not been our purpose to refer particularly to the testimony further than to indicate that there was some evidence tending to connect them with the murder as accessories before the fact.

It must be apparent from what has already been said, that the ingredients necessary to constitute murder of the first degree were proved to exist. The credibility of the witnesses was exclusively for the jury. If they were believed, the body of the offence was clearly proved, and the only serious question was who, besides Drews and Stichler, were the guilty parties. That was a question exclusively for the jury, and after they have passed upon it, and the verdict has been approved by the learned court before whom the case was tried, it is incumbent on the plaintiffs in error to satisfy us that they have just reason to complain of the judgment. This they have failed to do. The assignments of error are not sustained.

The judgment of the Court; of Oyer and Terminer of Lebanon county is affirmed, and it is ordered that the record be remitted to said court for the purpose of carrying the sentence into execution.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Pennsylvania Coal Company versus Sanderson and Wife.
    1. A coal mining company pumped from its mines water which found its way into and polluted a previously pure stream. In an action against the company for damages, by a riparian owner on the stream, Held, that the fact that coal mining is an important industry would not relieve the defendant from liability, and that it could not justify its action on the ground that the customary mode of disposing of water pumped from mines in the coal regions was to'allow it to flow into the adjacent natural watercourses, as such usage lacked the necessary age to establish a general custom, and such a custom would not only be unreasonable, but unlawful.
    2. Sanderson v. Pennsylvania Coal Co., 5 Norris 401, followed.
    April 2d 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Lackawanna county: Of January Term 1880, No. 63.
    Trespass on the case by J. Gardner Sanderson and wife, in right of said wife, against the Pennsylvania Coal Company, to recover damages for the alleged corruption of a stream of water used by plaintiffs, by reason of the working of the colliery of defendant.
    In 1868 the plaintiffs purchased a tract of land, within the limits of the city of Scranton, on which they erected a handsome residence and other improvements, at a cost of about $80,000. A stream of water called “Meadow Brook” flows through this tract, and before its purchase Mr. Sanderson traced it to its source, and it was, it appeared, one of the principal inducements to the purchase made by him. The stream was about an average width from its source to the house of plaintiffs. The water, when the stream was examined by Mr. Sanderson, was perfectly pure. Dams were built across the stream by Mr. Sanderson for the purpose of fish and ice ponds, and to supply a cistern, and the water was carried in pipes from the cistern to a ram, and thence forced to a tank in the attic of the house. After these improvements were made the defendant opened a coal mine on the side of a hill about three miles above the house of the plaintiffs. A drift was first made into this mine and a shaft afterwards sunk. The water which collected in this drift, as well as that pumped by engines from the shaft, ran into the creek. It was alleged that the effect of the water from the mine was to corrupt the water of the stream so as to unfit it for domestic use. There was evidence that the fish in the brook were destroyed; that the willows along the bank died; • that the pipes connecting the stream with the cistern, the ram and the house, were corroded and eaten out; that the water was unfit for household use in 1873, and that in 1875 its use for all purposes was abandoned. No change was made in the appearance of the water, but it was conceded that it was acid and unfit for use.
    At a former trial in Luzerne county, the court granted a compulsory nonsuit, which judgment this court reversed (see 5 Norris 401), and a new venire having been awarded, the suit was transferred to Lackawanna county on the erection of said county.
    At the trial, before Handley, P. J., the defendant offered to show by the witness on the stand and other witnesses, that it was mining coal from its mines upon this stream, and making such disposition of the mine water from its mines as, according to custom and common consent, has been the mode ever since coal mining was begun, and in the mode that the memory of man runneth not to the contrary. It proposed to show a custom for the whole anthracite coal region in Lackawanna and Wyoming.
    Objected to, and objection sustained. (2d assignment of error.)
    The first point of the plaintiffs, with the answer of the court thereto, rvere as follows :—
    “If the jury find from the evidence that the operations of the defendant, by polluting the waters of the Meadow Brook, caused an injury to the plaintiffs prior to the bringing of their action, then they are entitled to recover as damages such an amount as will compensate such injury.”
    Ans. “ If you find from the evidence that the defendant did pollute and corrupt the waters of the Meadow Brook stream, then we affirm this point.”
    The first point of the defendant, with the answer of the court thereto were as follows:
    1. If the jury believe from the evidence that it was impossible for the defendant to mine its coal on its lands along this stream without discharging the mine water from its mines, and that the mining was done without malice or negligence; and. that no foreign substance was introduced into the mine water by the defendant; and that when the mine water was so discharged it followed the law of gravity, as directed by the natural conformation of the land, and flowed by a natural flow into this stream, and thence through the plaintiffs’ property ; then, even if thereby the plaintiffs were damaged, it is damnum absque injuria, and plaintiffs cannot recover.
    Ans. “ The Latin language in this point simply means a loss without an injury.' If you find from the evidence that it was possible for the defendant to mine its coal on its lands along this stream -without polluting the water thereof, then we cannot affirm this point.”
    Verdict for plaintiffs for $250, and after judgment thereon the defendant took this writ, and alleged, inter alia, that the court erred in rejecting the above testimony and in the answers to the foregoing points.

      A. T. McClintoch, I. J. Post and Samuel Dickson, for plaintiff in error.
    The defendant below set up in its pleadings a special custom in the anthracite region, recognising, without cavil or objection within memory of man, the same mode and manner of mining and of disposing of mine water as were used by defendant. They claimed that operating their mines in accordance with the custom, such custom proved was a full answer and defence to the action.
    The evidence, we submit, should have been received for the purpose for which it was offered: Carylon v. Lovering et al., 40 Eng. L. & Eq. 448; Rogers v. Brenton, 59 Eng. Com. L. 26; Hartzall v. Sill, 2 Jones 248; McMasters v. Railroad Co., 19 P. F. Smith 374; Carter v. Coal Co., 27 Id. 286. The right of the riparian owner is not an absolute right. It is incident merely to his ownership of land through which the stream has its course. All such rights are liable to be modified and abridged in the enjoyment by the exercise by others of their own rights, and so far as they are thus abridged the loss is damnum absque injuria. The only limit that can be set to this abridgment through the exercise by others of this natural right, is in the standard or measure of reasonable use: Merrifield v. Worcester, 110 Mass. 216.
    Usage is some proof of what is considered a reasonable and proper use of that which is a common right, because it affords evidence of the tacit consent of all parties interested to the general convenience of such use: Gould v. Boston Duck Co., 13 Gray 452; Haskins v. Haskins, 9 Id. 390. What is a reasonable use, under all the circumstances, must depend on the character of the stream, its relative position, the usage of the country and the state of the arts; Tourtellot et al. v. Phelps, 4 Gray 376.
    The flow of mine water into a surface stream cannot of itself be regarded as a nuisance in the mining regions of this state.
    This proposition rests upon well-settled distinctions in the law of nuisance. The common law is a practical system intended to govern everyday life, and it is necessary that many kinds of business should be carried on, though productive of disagreeable results. All that the law can do is not to prohibit them altogether, but to confine them to the proper localities: Galbraith v. Oliver, 3 Pitts. 78; Richard’s Appeal, 7 P. F. Smith 105; Rhodes v. Dunbar, Id. 287; Tipping v. Smelting Co., 116 E. C. L. R. 608; Huckenstine’s Appeal, 20 P. F. Smith 106; Attorney-General v. Cleaver, 18 Vesey, Jr. 219, 220; Wier’s Appeal, 24 P. F. Smith 241. There is not a stream that flows within the outcrop of the coal that is not more or less impregnated with sulphuric acid. If this plaintiff can recover, the dwellers upon the banks of the Schuylkill, Lehigh and Susquehanna can maintain their action, and the mining of anthracite coal can be entirely stopped.
    The right of a riparian owner in a surface stream must be determined by its location and the custom of the country. It would be in the highest degree unreasonable to blindly follow the decisions of the English courts on questions relating to the use of water in this country. There must always be allowed a reasonable use, and the question of extent must depend upon the circumstances of the case. Numerous illustrations will be found in Washburne on Easements, pages 231, 233, 259, 270, 329 and 336.
    ■ In a country developing so rapidly as this, it will not do to apply the rules, which have grown up in England, in respect to the acquisition of prescriptive rights in surface streams. The common law of Pennsylvania differs in many respects from that of England, and with each new development the law must recognise the new relations thereby created: Snow v. Parsons, 28 Vt. 459; Jacobs v. Allard, 42 Id. 303; Atchison v. Peterson, 20 Wall. 507; Jennison v. Kirk, 8 Otto 457. As there is no liability for the total destruction of wells or springs or surface streams by mining operations, nor for the flow of mine water into adjacent mines, one who conducts his mining operations with due care and skill is not responsible for the flow of mine water from his mine, although it may lead to a partial destruction of the value of a surface stream.
    May 3d 1880.
    Liability cannot be attached to the bare exercise of a legal right if the party injuring confines himself strictly to its exercise, and if the hurt done could not have been avoided except by abandoning the right. Qui jure suo utitur nemini injuriam facit, or neminem Icedit: Wharton on Negligence, sect. 781. It was upon this principle that the case of Acton v. Blundell was decided. It has been repeatedly followed in this country, and the reasoning upon which the decisions are based is equally available for the plaintiff in error in this action : Wheatley v. Baugh, 1 Casey 528; Haldeman v. Bruekhart, 9 Wright 514; Frazier v. Brown, 12 Ohio 311; Chasemore v. Richards, 7 H. L. C. 349. This last is a leading case. See, also, Crompton v. Lea, L. R., 19 Eq. 115; Wilson v. Waddell, 2 Appeals Cas. 95.
    The law surely must and will be adjusted to the great industrial interests of the state. The right to mine coal is not a nuisance; the exercise of that right is lawful; and if, in the exercise of such lawful right, in the way in which the right has been exercised since coal mining began in the state, streams of water, the natural courses for drainage, are affected by bringing to the surface the water that percolates into the mines, the riparian owner must submit to the incident. If he cannot claim damage for the spring or the well that is totally destroyed by mining adjoining land, surely he is equally without redress for the effect of mine water flowing into such stream and allowed to flow in the natural drain channel in the natural state in which it comes from the mines.

      A Riehetts, for defendants in. error.
    In Broom’s Maxims, p. 882, it is stated that the requisites of a custom are that it must be certain, reasonable, ancient, continual, peaceably enjoyed, and acquiesced in, compulsory, consistent, and if in derogation of the common law or of general right strictly construed. There never was a colliery on this stream previous to that of plaintiffs’ in error, and they had present in court witnesses whose memory ran back of the opening of the first colliery in the whole region. 'But the following cases doubtless settle the question against the plaintiffs upon general principles: Bolton v. Colder and Wilson, 1 Watts 360; Rapp v. Palmer, 3 Id. 178; Stoever v. Lessee of Whitman, 6 Binn. 416; Coxe v. Heisley, 7 Harris 243; Wetherill v. Neilson, 8 Id. 448; Christian v. Dripps, 4 Casey 271; Blewett v. Tregonning, 3 Ad. and El. 554 (30 E. C., L. R. 151); Bryant v. Com. Insurance Co., 6 Pick. 131: Strong v. Bliss, 6 Metc. 393. And the following cases settle it, particularly: Jones v. Wagner, 16 P. F. Smith 429; Horner v. Watson, 29 Id. 242:
   Mr. Justice Gordon

delivered the opinion of the court,

The material points in this case have been most fully and carefully discussed in the opinion delivered by our late lamented brother Woodward, in this same case when here before, and which may be found in 5 Norris 401. As that opinion has been faithfully followed in the court below, we are relieved of any extended examination of the case as now presented. Whether or not the injury complained of resulted from the act of the defendant in pumping deleterious mine water into the Meadow Brook, was fairly submitted to the jury, and that body found that that was the immediate cause of the injury. When, in 1868, Mrs. Sanderson purchased her property on Meadow Brook, she found the water of this stream pure and valuable for domestic purposes. Her right to have and use these waters, as she found them, is undoubted. This right, though of an incorporeal character, was as absolute as her right to the land through which they flowed. . But that right has been destroyed, or its value seriously impaired by the direct act of the defendant. As then, it has been the. cause of the injury, why should it not be held to an account therefor ? The answer is twofold: 1st. It is said, the pollution of this brook results from the necessities of coal mining, and as that is an industry important to the welfare of this Commonwealth, the right of the plaintiff must yield to it. But this argument is fallacious in this: the mining operations of the defendant do not involve the public welfare, but are conducted purely for the purposes of private gain. Incidentally, all lawful industries result in the general good; they are, however, not the less instituted and conducted for private gain, and are used and enjoyed as private rights over which the public has no control. It follows, that none of them, however important, can justly claim the right to take and use the property of the citizen without compensation.

2d. It is urged, that the customary mode of disposing of water pumped from mines, in the Lackawanna and Wyoming coal regions, has been to allow it to flow into the adjacent natural watercourses. Of this proof was offered, and that for the purpose of showing a general custom thus to use the rivers, creeks and smaller streams of this part of the state, and, it may be.added, so to destroy the rights of riparian owners. As a local custom, or prescription, this has no application to the case in hand, for the colliery of the defendants appears to be the only one within the territory drained by Meadow Brook, and the pollution of its waters has occurred since the plaintiff’s purchase. As a general custom it lacks the necessary age, for the beginning of deep coal mining, in the regions above named, is quite within the memory of men yet living. Wanting this, it fails in a particular essential to the establishment of such a custom : Jones v. Wagner, 16 P. F. Smith 429. But more fatal still, to the defendants’ pretension, is the fact that the effort is thus to justify the disturbance of private property for the advancement of the private interests of the defendant corporation, and that, not under the plea of an ancient customary use, arising before the plaintiffs’ acquired title, but of a general custom which would authorize the present injury or distraction of the rights of riparian owners. But a custom, such as this, would not only be unreasonable but also unlawful, and therefore worthless. It is urged that mining cannot be carried on without this out-flow of acidulous water, hence, of necessity, the neighboring streams must be polluted. This is true; and it is also true that coal mining would come to nothing without roads upon which to transport the coal after it is mined;' therefore, roads are necessary; but it does not follow that, for such purpose, the land of an adjacent owner may be taken, or his right of way encumbered, without compensation.

If, indeed, the custom set up were to prevail, then, at least so far as coal mining companies are concerned, there would be an abrogation of the 8th section, art. 14 of the Constitution, which provides that “ municipal and other corporations invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by the construction and enlargement of their works, highways or improvements.” Not only would we thus have a custom superior to the supreme law of the land, but one reaching even beyond the possible sovereignty of the state, in that, it would empower private persons, for private purposes, to injure or destroy private property, and that without compensation. A custom, such as this, is radically bad, and cannot be sustained.

Judgment affirmed.

Paxson and Sterrett, JJ., dissented.


author: Mr. Justice Paxson

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    Shrewsbury Savings Institution’s Appeal.
    1. S. gave a judgment bond to a savings institution to secure a loan. In the condition of the bond it was expressed to be “as collateral security for sundry notes £;ivan or drawn by S. or endorsed by him or bis firm and held by the institution.” The notes were renewed from time to time, but there was no agreement that the bond should stand for the renewals. Certain judgment-creditors contended that the bond was collateral to the notes merely and not to the debt represented thereby, and that the lifting of the old notes by the renewals was a novation and satisfied the condition of the bond, which contention the court sustained. Held, that this was error.
    2. The subsequent judgment-creditors were bound, by the act of the debtor. He had no equity to be relieved of the lien of the judgment without payment of the debt for which it was collateral, and they had no higher equity than he had.
    May 4th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Si-iarswood, C. J., and Green, J., absent.
    Appeal from the Court of Common Pleas of Yorh county: Of May Term 1880, No. 79.
    Appeal of the Shrewsbury Savings Institution from the decree of the court distributing the proceeds of the sheriff’s sale of the real estate of Henry Seitz. The fund arising from the sale was referred to an auditor, John W. Bittinger, Esq., who reported the facts substantially as follows: That on the 19th of June 1875, Henry Seitz was indebted to the Shrewsbury Savings Institution in an amount which was represented by notes and indorsements; that on the same day he executed a judgment-note to said institution for the sum of $6000, payable one day after date, “ as collateral security for sundry notes given or drawn by the said Henry Seitz & Co., and held by the aforesaid Shrewsbury Savings Institution,” and that on the same day judgment was entered on said note: that the notes which the judgment was given to secure were for the most part renewed from time to time by the giving of new notes and the surrender of the old. In the final renewal a consolidated note for $700 was given in place of two notes previously given.
    The cashier of the savings institution testified that the renewals of the notes were taken by him, as cashier, on the credit of the collateral judgment held by the institution. He did not recollect' of any action taken by the board of directors on this subject. There was no evidence of any agreement with Henry Seitz, the defendant in the execution, that the collateral judgment should be security for the renewed notes.
    The savings institution claimed to be awarded the amount of the debt as evidenced by one of the original notes, which they still held; and by the renewal and consolidated note for $700. Barnhardt and others, who were subsequent judgment-creditors, also claimed the fund. The auditor awarded it to the latter in his report, saying:
    “ If the collateral judgment had been to secure the indebtedness of Seitz to the savings institution on June 19th 1875, the auditor is of the opinion that it would cover the $700 note, that being the proper evidence of that much of the indebtedness which the judgment would have been given to secure; but the terms of the collateral judgment is to secure notes held by the institution at the date of the execution of the judgment. The auditor decides that the renewal of $450 and $350 notes and the consolidated note, and the surrender of the old notes at the time of the renewals, were an extinguishment of, the old notes by novation; and that the-$700 note claimed upon is not covered by the collateral judgment in evidence, in the absence of an agreement to that effect.”
    Exceptions were filed, which the court dismissed, and confirmed the report, which action was assigned for error by the savings institution, which took this appeal.

      J. W. Latimer, for appellant.
    The collateral judgment imports on its face, and by its very terms, payment, and it can only be discharged by payment of the notes it was given to secure to an amount equal to the sum specified in the condition of the bond: Lewis v. Bank, 3 Whart. 531.
    The renewal of the notes held at the date of the collateral judgment-bond was not such payment of them as discharged the judgment. It was not'payment unless so accepted and intended.
    The renewal of a promissory note has the benefit of all the securities for the payment of the original, whether by way of mortgage, deed of trust or otherwise: Daniels’ Negotiable Inst., pl. 748; Cover v. Black, 1 Barr 493; Lytle’s Appeal, 12 Casey 131; Davis v. Maynard, 9 Mass. 242; Watkins v. Hill, 8 Pick. 522; Pomeroy v. Rice, 16 Id. 22; Taber v. Hamlin, 97 Mass. 489; Choteau v. Hunson, 2 Ohio 114; 3 Id. 424; Patterson’s Adm’r v. Johnson, 7 Id. 225; Brinkerhoff v. Lansing, 4 Johns. Ch. 65, 73. The judgment-debtor himself could not set up these renewals and consolidation, which were made with his consent and for his accommodation, and to each of which he was a party, as payment; and the appellees, being merely judgment-creditors, and not purchasers, stand on the same footing as the defendant, with no greater equity.
    June 19th 1880.

      W. C. Chapman, for appellees.
    If this collateral judgment had been given to secure the payment of the indebtedness of Henry Seitz, it would present at once a different case; but its language is clear, precise and definite in limiting the security to “ notes held” by the appellant, and of course held at that time. On its face it expresses no more and imports no more ; and there is nothing in this case to induce the court or a chancellor to supply by intendment what is not expressed in the appellant’s favor. A number of cases are also cited for appellant to show that renewals of notes do not amount to payment unless so accepted and intended by the parties. But that is always a question of fact, and the auditor has determined it in our favor: Slaymaker v. Gundaker’s Estate, 10 S. & R. 75; Hart v. Butler, 15 Id. 162; Macungie Savings Bank v. Hottenstein, 8 Norris 328. It rests upon the appellant to establish, affirmatively, error in these findings of fact by the auditor, and, unless error is thus shown, his findings are conclusive: Stehman’s Appeal, 5 Barr 413; Miller’s Appeal, 6 Casey 478; Gilbert’s Appeal, 28 P. F. Smith 266.
    The taking of the new notes was a novation, and the old notes were thereby extinguished: Ayres v. Watson, 7 P. F. Smith 360; Moorhead v. Duncan, 1 Norris 488.
   Mr. Justice Paxson

delivered the opinion of the court,

It is conceded the judgment held by the appellant against Henry Seitz, No. 553, April Term 1875, was given as collateral security. In the condition of the bond it is expressed to be “ as collateral security for sundry notes given or drawn by the said Henry Seitz, or endorsed by him, or by said Samuel. Seitz & Co., and held by aforesaid Shrewsbury Savings Institution.” The note for $700, which is the subject of the present contention, was not in existence at the time the judgment was given, but the auditor finds that it is a renewal of other notes held by the Savings Institution, appellant, at that time. The fund for distribution is the proceeds of real estate of said Henry Seitz; the auditor and the court below held that the condition 'of the bond did not cover the renewals, and excluded the $700 note from participation in the distribution.

There was no agreement that the bond should stand for the renewals. We must look therefore at the legal effect of the condition. . It was contended by the appellees, who are subsequent judgment-creditors, that it was collateral to the notes merely, and not to the debt represented thereby; that the lifting of the old notes by the renewals was a novation, and satisfied the condition of the bond. The distinction between the notes and the debt is exceedingly refined. If the judgment is collateral to the notes it is also collateral to the debt, for the reason that the notes are but the evidence of the debt, with a promise to pay it. Has the debt been paid ? As between the parties to a note, it has never been held that a renewal was payment, unless so accepted and intended: Hart v. Butler, 15 S. & R. 162; Weakly v. Bell, 9 Watts 273; Hacker v. Perkins, 5 Whart. 95; Oliphant v. Church, 7 Harris 318; Reed v. Defebaugh, 12 Id. 495; Brown v. Scott, 1 P. F. Smith 357. It follows, that the indebtedness for which the judgment was given as collateral being still unpaid, Seitz, the debtor, has no standing to allege that the note is not protected by the lien of said judgment. It is said, however, that as to the subsequent judgment-creditors the condition of the bond cannot be extended to cover the renewals. The latter, however, are bound by the act of their debtor. They have no higher equity than he has, and it is too plain for argument that he has no equity to be relieved of the lien of appellant’s judgment without payment of the debt for which it was given as collateral. Ayres v. Watson, 7 P. F. Smith 360, and Moorehead v. Duncan, 1 Norris 488, have no application. In the one case, there was the equity of a surety; in the other, of a bona fide purchaser. The appellees are not purchasers: Rhodes v. Wilson, 4 Yeates 38; Huston v. Fortner, 2 Binn. 40; Cover v. Black, 1 Barr 493. They have no interest in the property bound by their judgments; they have a lien only. A purchaser, however, stands upon a different footing. He buys and pays for the land. He has an equity to have it exonerated. But a judgment-creditor, as was said by Chief Justice UlBSON, in Cover v. Black, supra, “stands on. the foot of his debtor,” and as the renewal of the notes, under the protection of the judgment, did not impair the lien of it between the original parties, it did not impair it between the appellant and the appellees.

It is prop'er to remark that in Moorhead v. Duncan the bond of indemnity stipulated for a single renewal of the notes. This would seem to exclude any subsequent renewals upon the maxim expressio unius est exclusio alterius.

I do not mean to say that a case might not arise in which a subsequent judgment-creditor would have an equity superior to that of his debtor; as, for instance, where the cancelled notes had been exhibited to him, and he had loaned money on the faith of it. But we have no such question before us. These appellees have not shown any such equity, nor any equity whatever. We are of opinion that the appellant is entitled to have the said note of $700 paid out of the fund.

The decree is reversed at the costs of the appellees, and distribution awarded in accordance with the foregoing opinion.


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    Steinman & Co. versus Henderson and Wife.
    1. It is essential to the validity of a mechanic’s lien against the separate estate of a married woman that the claim should set forth that the work was done and the materials were furnished with her authority and consent. Her husband cannot bind her separate estate, even for necessary repairs, unless by her authority.
    2. All the facts necessary to create a valid lien must be set forth in the claim.
    3. Where suit is properly brought against a married woman on a claim for which, upon its face, she or her separate estate is prima facie liable, the plaintiff is entitled to judgment for non-compliance with the rules of court, as though she were a feme sole.
    4. Where the material averment in a mechanic’s claim, that the debt was contracted by the wife, is traversed by the joint affidavit of the husband and wife, this allegation constitutes on its face a good defence and the case should be sent to a j ury.
    May 5th 1880.
    Before Merour, Gordon, Paxson, Tritnkey and Sterrett, JJ. Sharswood, O. J., and Green, J., absent.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1880, No. 185.
    Scire facias sur mechanic’s lien by George Steinman and others, trading as George M. Steinman & Co., against James B. Henderson and Rebecca, his wife, owners or reputed owners. The defendants pleaded no lien and payment.
    The following opinion of the court below, Patterson, A. L. J., together with the facts set forth in the opinion of this court, sufficiently state the case:
    “ The plaintiffs filed a mechanic’s lien in this court against the defendants. A sci. fa. issued on the same, and the defendants filed their affidavit of defence. Then plaintiffs obtained a rule on defendants to show cause why judgment should not be entered for want of sufficient affidavit of defence.
    “ The defendants are husband and wife. The lien filed is for lumber and other materials furnished by plaintiffs, in and about the erection of a building, in and upon the wife’s real estate. The lien itself seems to possess all the qualities and formalities required in the case of married women. But just here the affidavit of defence, put in by both husband and wife, says, 4 that they have a defence in the above suit, in that the said Rebecca Henderson never contracted for the articles specified in the bill of particulars filed — and alleged by plaintiffs to have been furnished by them — and the said James B. Henderson and Rebecca Henderson further say, that the charges, or some of them, are in excess of what the plaintiffs agreed with the said James B. Henderson to furnish for to him.’ We are forced to think that said plea is sufficient to prevent judgment and send the case before a jury. It raises a distinct question of fact, and in the Act of 11th of April 1848, securing to married women the control of their separate property, the proviso of sect. 8 says: ‘ That judgment shall not be rendered against the wife in such joint action,’ — that is, against husband and wife jointly — ‘unless-it shall have been proved that the debt sued for in such action was contracted by the wife,’ &c. It seems that the debt must be contracted by the wife herself, or in her name, by any person authorized so to do. The statute secures to the wife that plea and exempts her estate from liability until proven. We can find no exception in the books other than suits on mortgages, and none as to mechanics’ liens. We are of opinion, therefore, that the affidavit of defence is sufficient to prevent judgment, and the rule must be discharged.”
    This action of the court was assigned for error by Steinman & Co., who took this writ.

      3. M. North, for plaintiffs in error.
    A default may be entered against a married woman as a defendant. A judgment for want of affidavit of defence is for default, and if it cannot be entered against her she might escape judgment by refusing to appear or plead. If it should ever be decided that judgment for want of an affidavit of defence cannot be entered against her, it -certainly would be limited to cases in which an effort is made to charge her personally, and not in a proceeding in rem where she is only required to be named to show who is the owner of the property.
    The court admits the lien to be in proper form, and the defendants do not deny that the materials were furnished as stated in the lien, with the wife’s knowledge and consent, and were actually used in improving her separate real estate, and useful and necessary for the enjoyment of the same. The lien is perfect in form and meets the requirements of the latest decisions, and the wife’s denial that she contracted for the materials is no defence, for the property is liable for the materials furnished to the husband as builder or contractor.

      J. Hay Brown, for defendants in error.
    The argument of the plaintiffs in error is based upon the assumption that the court below discharged the rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence because judgment cannot be entered against a married woman by default. That question was not before the court below. The question was as to the sufficiency of the affidavit of defence filed, and the court discharged the rule for judgment because the affidavit was sufficient.
    May 17th 1880.
    When the object is to charge the real estate of the wife with a lien, all the requirements of the Act of 1848 must be complied with. There can be no such presumption against her as arises against one sui juris: Shannon v. Shultz, 6 Norris 481; Loomis v. Fry, 10 Norris 396.
    The affidavit denied that the wife ever contracted for the articles specified in the bill of particulars, and the Act of 1848 provides that judgment shall not be rendered against her unless it be proved that she did contract. There is no proof here
   Mr. Justice Sterrett

delivered the opinion of tho court,

It is essential to the validity of a mechanic’s lien against the separate estate of a married woman that the claim should set forth, among other things, that the work was done and the materials were furnished with her authority and consent; in other words, that she, or some one authorized by her, contracted therefor. Her property is not subject to a lien for work done or materials furnished under a contract with her husband, unless it is made by her authority; nor can he, by any act of his, encumber her real estate without her consent, even for the purpose of making necessary repairs. All the facts necessary to create a lien against her separate estate must be distinctly averred in the claim : Dearie et ux. v. Martin, 28 P. F. Smith 55; Lloyd v. Hibbs, 31 Id. 306; Schrifer v. Saum et al., Id. 385. The claim in this case appears to have been carefully drawn, and contains all the averments necessary to constitute a valid lien. After setting forth, in due form, the nature of the claim, the kind and amount of materials furnished, work done, &c., it is averred that “ the said work was done and the said materials were furnished with the knowledge and consent, and at the request and with the authority, of said Rebecca Henderson, wife of the said James B. Henderson, for the purpose of, and were actually used in, repairing her separate real estate, and were useful and necessary for the enjoyment of her separate real estate, and the debt was contracted by the said Rebecca Henderson.”

We have not been furnished with the affidavit of claim, but assuming, as was done in the court below and here, that it was in due form, the plaintiffs were entitled to judgment, unless the affidavit of the defendants, assuming the facts therein to be true, disclosed a valid defence. When suit is properly brought against a married woman on a claim for which, upon its face, she or her separate estate is prima facie liable, the plaintiff is entitled to judgment, for non-compliance with the rules of court, as though she were a feme sole. As to appearance, rules to plead, affidavits of defence, &c., she' has the same rights, and is subject to the same duties and penalties, as others who defend in their own right and not in a representative capacity.

In the joint affidavit filed by Mr. and Mrs. Henderson it is averred that they have a defence “ in that the said Rebecca Henderson never contracted for the articles specified in the bill of particulars filed, and alleged by the plaintiffs to have been furnished by them,” and further “that the charges, or some of them, are in excess of what the plaintiffs agreed with the said James B. Henderson to furnish them for to him — all of which they verily expect to prove.” Thus, the material averment in the claim, that the debt was contracted by Mrs. Henderson, is not only traversed by the defendants, but this positive denial is followed by averments the substance of which is that the plaintiffs agreed with the husband to furnish to him the articles mentioned in the bill of particulars, and that some of their charges are in excess of what they agreed to furnish them for. The affidavit of defence is not fairly susceptible of any other meaning; and, assuming as we must, for the present purpose, that these allegations are true, they constitute a good defence to the plaintiffs’ claim, and necessarily send the case to a jury, whose province it will he to determine the disputed questions of fact. If the plaintiffs fail to show that the work and materials were contracted for by Mrs. Henderson, or by some one having authority from her to do so, they cannot recover.

The order of court discharging the rule for judgment is affirmed.


text:
    Reehling, Assignee, versus Byers et al.
    1. A son, who was in embarrassed circumstances, was indebted to his father in the sum of $550. To secure the debt the father purchased from the son a tract of land for $1350, deducting therefrom the amount of the son’s debt to him, and paying the balance of the purchase-money in cash. balance the son immediately expended in paying other debts. A few thereafter another creditor obtained an award against the son, and afterwards a judgment under which the land was sold as the property of.the son. The purchaser obtained possession. The father subsequently made an assignment for the benefit of creditors, and his assignee brought ejectment to secure the land. Reid, that in the absence of evidence of fraudulent intent on the part of the father, the court should have instructed the jury to find for plaintiff.

      ‘21. The fact that the son conveyed with intent to defraud was immaterial in the absence of fraudulent intent on the part of the father. And if the motive of the latter was to secure his own debts, his purchase cannot be impeached because he paid the difference between the amount of his debt and the price agreed upon in money. It is the motive of the creditor which is to be looked into, and if that was honest and lawful the intent of the debtor does not enter into the question. One cannot be prejudiced by the fraud of another of which he has no notice.
    3. Business dealings between parents and children, and other near relatives, are not per se fraudulent; they must be treated just as are the transactions between ordinary debtors and creditors, and where the bona fides of their transactions is attacked the fraud alleged must be clearly proved.

      May 4th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    Error to the Court of Common Pleas of York county: Of May Term 1880, No. 95.
    Ejectment by O. F. Reehling, assignee for the benefit of creditors of Isaac Taylor, against William R. Byers, tenant, and the widow and heirs of Joel Brinton, deceased, for two tracts of land in York county.
    The material facts were as follows : On the 23d of June 1876, W. H. Taylor conveyed the property in dispute to his father, Isaac Taylor, for a consideration of $1350. On the 1st of April 1873, W. H. Taylor became surety for one Kurtz, in a note to Joel Brinton, for $1000. Several years thereafter Kurtz absconded, leaving his debts unpaid. On the 10th of April 1876, Brinton brought suit on his note, and obtained judgment by arbitration' against W. H. Taylor on the 27th of June 1876, for $1134.50. An appeal having been taken, judgment was obtained after trial in court on the 26th of February 1879, for $1174 and costs. On the 5th of March 1877, a fi. fa. issued on said judgment, and the property conveyed as aforesaid by W. H. Taylor to Isaac Taylor was levied upon and condemned. On the 2d of June 1877, the property was sold as the property of W. H. Taylor to the plaintiff in the execution, Joel Brinton, for the sum of $722. After proceedings were had before two justices, W. H. Taylor, as tenant of Isaac Taylor, was ejected by the sheriff, and W. R. Byers, as tenant of Joel Brinton, was put into possession of the premises. On the 28th of December 1877, Isaac Taylor made an assignment for the benefit of creditors to the plaintiff, Reehling, who brought this action on the 25th of January 1878.
    It was contended by the defendants that the deed from W. II. Taylor to his father was fraudulent and void as to Joel Brinton.
    In relation to this deed the following facts were disclosed by the evidence: On the 12th of April 1868, W. II. Taylor being in need of money in. his business, borrowed from his father $1420, for which he gave him his note. By sundry payments this note was reduced on April 1st 1874, to $550, for which he gave his father a new note. On the 1st of April 1873, W. II. Taylor was also indebted to- his sister in the sum of $589.64, for which he also gave her a note of that date. In January 1876, she notified her brother that she needed this money, and at that time his father also demanded additional security for his note. To meet these demands, W. H. Taylor offered to sell the property in dispute to his father for $1350, which was its full value, the purchase-money less the amount of the father’s note, to be paid in cash. In pursuance of this arrangement, on the 23d of June, the conveyance was made. Isaac Taylor’s note amounting with interest to $591.25 was deducted from the purchase-money, and the balance of the purchase-money $758.75 was paid by him, partly in cash, and partly in United States bonds. In order to raise the money he borrowed from Sarah Meredith $219.25, for which he gave to her his note. Out of said balance of $758.75, W. H. Taylor, on that day, paid the note of Sarah Meredith, amounting with interest, to $704.75, and with the $54, which then remained, he paid other debts.
    The defendants offered to prove by a witness on the stand “ that he met Taylor at Crull’s store, in Newberry, about haymaking (am sure it was before harvest; the weather was warm) .in 1876. He said, “You go to Joel Brinton and tell him that I am willing to pay half the amount of that note, so that I can get my property back, if he will settle.” He said, “I wouldn’t have sold it, only to get out of paying the bail money to Brinton. I would like to have it settled, so that I can get my property back, as I had it before, for this way I can do no business; the way my affairs dow are.” I said I would go and talk to Joel Brinton, and I went and talked with him a few days afterwards; and after that I came back to Newberry. My best recollection is that I went to his house and told him Joel Brinton said he would have either the whole or none. He appeared sorry that it couldn’t be settled.”
    For the purpose of showing, in connection with the evidence already in evidence on behalf of the defendants, that the object, intent and purpose of the said W. H. Taylor was to hinder and delay Joel Brinton in the collection of his debt; to be followed by evidence of fraudulent collusion between W. H. Taylor and Isaac Taylor, the plaintiff’s grantor.
    Objected to and evidence admitted. No evidence as to fraudulent collusion was thereafter offered. There was no evidence that W. H. Taylor, at the time of the execution of the deed, had any other indebtedness than that due to his father, sister and Brinton.
    When the defendants rested, the plaintiff asked the court to instruct the jury that there was no evidence of fraud to be submitted to them, and they must render a verdict for plaintiff, which the court refused.
    The plaintiff, inter alia, presented the following points, which the court refused:
    1. That under all the evidence in the case, the verdict should be for the plaintiff.
    6. That there is no sufficient evidence in the cause either to implicate Isaac Taylor, the plaintiff’s assignor, in any purpose or design, collusion or conspiracy, by purchase of the real estate claimed in this suit from William H. Taylor, to delay, hinder or defraud Joel Brinton, or any other creditor or creditors of said William II. Taylor, or with notice or knowledge of such purpose or design, to authorize the jury to find a verdict for the defendants, and that the verdict of the jury must be for the plaintiff.

      The defendants presented the following points, to which are appended the answers of the court:
    1. That if the jury believe, from the evidence, that W. II. Taylor sold and conveyed the premises in dispute in this suit, for the purpose of hindering, delaying and defeating Joel Brinton in the recovery of his debt, and that Isaac Taylor knew' of such purpose, then the deed of William H. Taylor to Isaac Taylor is fraudulent and void as against Joel Brinton, and those claiming under him, and their verdict must be for the defendants.
    Ans. “ The principle of law is correctly stated. For its application to this case the jury is referred to the general charge, and to our answer to defendants’ second point.”
    2. If the jury believe, from the evidence, that W. H. Taylor sold and conveyed the premises in dispute in this suit to Isaac Taylor, his father, for the purpose of hindering, delaying or defeating Joel Brinton in the recovery of his debt, and that Isaac Taylor had any manner of knowledge or notice of such purpose and intent of his son, W. H. Taylor, then the deed of W. H. Taylor to Isaac Taylor is fraudulent and void as to Joel Brinton, even though Isaac Taylor had actually paid a full price for the property, and these defendants claiming through Joel Brinton are entitled to their verdict.
    Ans. “ In the purchase of property from an insolvent debtor, a volunteer stands upon a different footing from a creditor. A volunteer who purchases with notice that the sale is made to hinder, delay or defraud the creditors of the vendor, is a participator in the fraud, and the conveyance is void under the statute of 13 Eliz. But a creditor has a right to secure his debt although he knows that some other creditors must lose in consequence, and that the object and purpose of the debtor is to secure and prefer him. Such knowledge would not render the conveyance void under the statute. But it is for the jury to say whether Isaac Taylor was a bona fide creditor of his son W. H. Taylor to the extent of the note he held, and whether the balance of the purchase-money was honestly paid.”
    In the general charge, the court, Wickes, A. L. J., inter alia, said: “It will not do that you believe one of the parties, W. H. Taylor, guilty of the fraud, unless you further believe the father, Isaac Taylor, was also a participator in it. It is the corrupt combination between the two which renders the conveyance void as to W. H. Taylor’s creditors.
    “ Fraud, as I have said, is alleged, and it must be proved. It is familiar law, that it cannot be presumed — the burden of proving it is upon the party who asserts its existence — and this alleged fraud must be established either by direct proof, or by facts which warrant a presumption of its existence, clearly and conclusively proved: Battles v. Laudenslager, 3 Norris 446. In other words, in the cast you are now trying, [you must find in the evidence direct proof of the fraudulent purpose of W. H. Taylor and his father to hinder, delay or defraud. Joel Brinton, a creditor; or you must find such facts clearly and conclusively proven, as will justify you in presuming the existence of fraud on the part of the grantee and grantor in the deed of June 23d 1876.] * * * In transactions of this character, the courts have placed creditors and volunteers upon different footings. A volunteer who buys with notice of the intended fraud cannot hold the property against the creditor whose debt has been delayed or hindered, even although he may have paid its full value. .But when a creditor takes the property to secure his debt, the transaction is not void, although he may have full notice that the debtor prefers him to his other creditors, and that other creditors must lose in consequence of such preference. [Indeed, where the property conveyed is not worth more than the existing indebtedness, it would be difficult to conceive a case in which fraud under the statute of 13 Eliz. could be established. But when, as in the case before us, a note is held by the vendee and applied only in part payment for the property, and cash is pdid for what is due in excess of the note, and .the jury is of opinion that the cash payment is not bona fide, but made only to deceive and cover up a fraud upon the creditors of the vendor, what is the effect ? I instruct you that it would render the whole transaction void, because fraud vitiates everything it touches, and although you may be of opinion that the note was honestly held, yet, if you shall further believe from the evidence that the money was not honestly paid, then the purchase would be fraudulent and void against the creditors of W. H. Taylor.”]
    Verdict for defendants. A motion for a new trial was refused and judgment entered on the verdict. The plaintiff took this writ, and, inter alia, assigned for error the admission of’the evidence in regard to the declarations of W. H. Taylor, the answers to the above points, and the portions of the foregoing charge included in brackets.

      Hdward W. Spangler and Cochran Hay, for plaintiff in error.
    The defendants failed to comply with their promises to supplement their offer with evidence of collusion between W. H. Taylor and Isaac Taylor. Even if it was the purpose and design of W. II. Taylor to convey his property to Isaac Taylor in order that Joel Brinton would not be able to collect the bail debt, it would not avoid the conveyance unless such purpose and design was communicated to Isaac Taylor, and not even then unless it was shown that Isaac Taylor was a volunteer, and that he did not take the property for the purpose of saving his claim.
    We also contend that Isaac Taylor had an undoubted right to take this land for the purpose, of saving his note against the grantor, though it had been shown that he knew that its tendency and effect would be to postpone Joel Brinton, or to prevent him from obtaining payment at all; and the fact that Isaac Taylor’s note against W. H. Taylor did not amount to the whole of the purchase-money, did not constitute him a volunteer: Uhler v. Maulfair, 11 Harris 481; Craver v. Miller, 15 P. F. Smith 456; Bear’s Estate, 10 Id. 430.
    It is also respectfully submitted that the court below erred in its instructions to the jury as to the “circumstances” admitted in evidence, from which they might infer the father’s active participation in his son’s fraudulent designs. The jury should not have been left free to guess at fraud “ where a proper motive existed, which might have been as readily the operating motive as one that was fraudulent.” Isaac Taylor “had a motive entirely adequate, the preservation of his own debt against William Taylor:” Bear’s Estate, supra.

    The relationship of the parties does not change the principle of law that fraud is not to be presumed, and that in their business relations their conduct is not to be scrutinized with greater severity than that of strangers in blood: Patterson v. Stewart, 6 W. & S. 72; Brown’s Appeal, 5 Norris 524.

      William Q. Chapman, for defendant in error.
    The evidence was amply sufficient to justify an inference of fraud. In the case of Forsyth v. Matthews, 2 Harris 100, a case affirmed by this court, Judge Lowrie says, “ An assignment of all of a man’s property when he is largely in debt naturally excites suspicion of fraud, and it is, therefore, evidence of fraud. If there be a judgment just ripening for execution at the time of the assignment, this increases the suspicion and adds weight to the evidence. That the transaction is between a father and son makes the transaction still more suspicious, because the father is supposed to be better acquainted than other people with the embarrassed circumstances of his son.” In this case the relation of father and son, and the intimate daily intercourse of the parties, is certainly a reasonable ground for the inference that Isaac knew of William’s embarrassed circumstances, and all about Joel Brinton’s suit against him. Add to this the extraordinary coincidence of the purchase just three days before Brinton’s lien was obtained, 'and that the purchase was by a man.on the verge of insolvency, of an expensive property he had no use for, and that the possession remained in William after the sale as before, without any change. It is to be remarked, also, that Isaac borrowed the money from Mrs. Meredith to pay William, and that it was immediately transferred back to Mrs. Meredith. Certainly all these circumstances tend to show fraud. It is a stronger case of collusion and fraud between father and son than Ferris v. Irons, 2 Norris 179. And this court there reverse, for the exclusion of evidence in the court below, less forcible and convincing than the facts and circumstances of this case. '

      May 17th 1880.
   Mr. Justice Gordon

delivered the opinion of the court,

“A volunteer,” says the learned judge of the court below, “ who buys with notice of the intended fraud, cannot hold the property against the creditor whose debt has been delayed or hindered, even although he may have paid its full value. But when a creditor takes the property to secure his dobt, the transaction is not void, although he may have full notice that the debtor prefers him to his other creditors, and that other creditors must lose in consequence of such preference. Indeed, where property conveyed is not worth more than the existing indebtedness, it would be difficult to conceive a case in which fraud, under the statute of 13 Eliz. could be established. But when, as in the case before us, a note is held by the vendee and applied only in part payment for the property, and cash is paid for what is due in excess of the note, and the jury is of opinion that the cash payment is not bona fide, but made only to deceive and cover up a fraud upon the creditors of the vendor, what is the effect ? I instruct ■ you that it would render the whole transaction void, because fraud vitiates everything it touches, and although you may be of opinion that the note was honestly held, yet if you shall further believe from the evidence that the money was not honestly paid, then the purchase would be fraudulent and void against the creditors of W. H. Taylor.” With the above, as a general statement of the law governing cases of fraud arising under the statute of 13 Eliz., no fault can be found; the difficulty arises in its application to the case in hand. It does not seem to be questioned but that Isaac Taylor was a bona fide creditor of his son, W. H. Taylor, and, as such, the learned court concedes, his son might have preferred him over other creditors, even though he had full notice of such preference. It follows, if Isaac Taylor’s motive in the purchase of the property in controversy was the security of his own debt, his purchase cannot be impeached, though he may have paid the difference between the amount of the note due him and the price agreed upon for the property in money. In this we must look to the motive of the creditor, .and if that was honest and lawful, the intent of his debtor does not enter into the question. As was said by Mr. Justice Coulter, in Scott v. Heilager, 2 Harris 238: “ One man cannot be prejudiced by the fraud of another, of which he has no notice nor opportunity of receiving notice.” It is true, indeed, if the intention of the parties was not only to secure the note due to the father, but also to put the balance of the property into such a shape that it could not be reached by the son’s creditors, then, as to such creditors, the whole transaction would be void. But of such intention we can find no evidence. The defendants offered to prove, and did prove, that William H. Taylor said, “ I wouldn’t have sold it,” that is, the property in controversy, “ only to get out of paying the bail-money to Brinton.” This was all very well, in order to show the motive by which William H. was actuated in the transfer of his property, but it does not affect Isaac unless he knew of this fraudulent design at the time of the consummation of the sale. So well did the counsel for the defendants know that this evidence, standing alone, would come to nothing, that the offer under which it was admitted, was supplemented by a proposition to prove a fraudulent collusion between William H. Taylor and his father. . No effort, however, was made to fulfil this proposition; hence, the proof adduced was but an isolated link in a proposed chain of evidence which was never completed, and, therefore, utterly worthless, and so the court should have treated it: Battles v. Laudenslager, 3 Norris 446. Not only was there no evidence that this alleged fraudulent intention of William H. Taylor had been communicated to his father, either before or after the sale, but it was not even shown that the father knew that his son had been sued on the Brinton note, in which he was surety for A. B. Kurtz. Indeed, for aught that appears, he was wholly ignorant of the claim which, it is now said, he colluded with his son to avoid. But, as we have already intimated, had he known the fact of his son’s suretyship for Kurtz, and that Brinton was about to obtain judgment, that would not have rendered his purchase void if in making it his intent was to secure his own debt, and not to hinder, delay or defraud Brinton. So, that Isaac Taylor borrowed part of the money,, to pay out the balance of the purchase-money, from his daughter, Mrs. Meredith, was of no kind of significance. What if this money were that which she had just received from her brother, and was part of that which he had that day received from his father ? Her claim was an honest one; no one doubts that fact; one on which she had a right to receive the money paid to her, and there surely was nothing wrong in her loaning it to her father. -It is a mere trifling wdth the principles of justice to allow a circumstance such as this, in itself so fair and proper, to be used to stamp a transaction, otherwise honest and lawful, with the character of fraud. Business dealings between parents and children, and other near relatives, are not per se fraudulent. They must be treated just as are the transactions between ordinary debtors and creditors. As in the latter case, where the bona tides of such transactions are attacked, the fraud alleged must be clearly and distinctly proved, so likewise in the former.

We have but to say in conclusion, that as there was, in this case, not even a sinctilla of evidence tending to involve the assignor of the plaintiff in the alleged fraud, the court should have affirmed the plaintiff’s first point, that is, “that, under all the evidence given in this case, the verdict should be for the plaintiff.”

The judgment is reversed, and a new venire ordered.