text:
    Commonwealth versus Erie and Pittsburg Railroad Company.
    1. A railroad company was authorized to sell their stock “ to such persons and for such a price and on such terms as they shall deem bestthe company gave the option to its stockholders “ of taking pro ratá for each share the sum of $40 of the capital stock upon the payment of $4 for each share of stock,” and declared a dividend of 7 per cent, per annum, payable quarterly. The increase of stock was §1,000,000. Held, that this increase was not a stock dividend liable to state taxation.
    2. It is not a presumption, that an increase of stock authorized by law is a stock dividend.
    3. Whether the increase is real or a pretence is a question of fact for the jnry.
    May 29th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to'the Court of Common Pleas of Dauphin county: No. 33, to May Term 1873.
    This was an appeal, filed April 6th 1861, by the Erie and Pitts-burg Railroad Company, from the settlement, February 20th 1871, against them by the accounting officers for state taxes.
    The settlement was as follows:—
    “ Dr. For tax on capital stock, per Act of May 1st 1868, for the year ending first Monday of November 1870, as per report herewith filed.
    1870. Stock dividend of $896,850 on capital of $999,600. Tax at the rate of one-half mill on capital for each one per cent, of dividend, . . $44,8-12.50
    1870. Dividend If- per cent, on $1,996,100. Tax |- mill,........ 1,746.58
    $46,589.08

      Or. By payment into treasury January 20th 1871, 1,746.59
    Due Commonwealth, ...... $44,842.49”
    The report of the company to the auditor-general was as follows:—
    “ Office of the Erie and Pittsburg Railroad Company, \ Erie, Pa., December 8th 1870. j
    “ To the Auditor-General of Pennsylvania:
    “Agreeably to law, as treasurer of the above company, I make the following report, viz.:—
    “ Amount of capital paid in: $999,600 at par, and 10 per cent, on $996,500.
    “Date of dividend declared: September 10th 1870.
    “Amount of dividend declared: If per cent, on $1,996,100 capital stock — $34,931.75.
    “ Rate per cent, per annum of dividends: Seven per cent. (7 per cent.) Wm. Brewster, Treasurer.”
    The treasurer, on the 3d of January 1871, wrote to the auditor-general :—
    * * * “In reply to your inquiry as to ‘ how the capital of this company was increased from $999,600 to $1,996,100,’ I will state that, by an act of the legislature of Pennsylvania, this company lias the right to sell the stock below par. In pursuance of a resolution of the board of directors of this company, passed May 19th 1870, the option was given to the stockholders of this company of taking pro-rata for each share of stock held by them, respectively, the sum of forty dollars of the capital stock of this company, upon the payment of four dollars in cash for each share of stock so held. The increase of the capital stock of this company arises from this option having been taken by most of the stockholders.”
    The treasurer at the same time forwarded to the auditor-general the following circular:—
    “ Office of the Erie and Pittsburg R. R. Co., 1 Erie, Pa., December 1st 1870. |
    “To the Stockholders of the Erie and Pittsburg R. R. Co.:
    “ The Erie and Pittsburg Railroad having been leased to the Pennsylvania Railroad Company for the period of nine hundred and ninety-nine years, in consideration whereof the lessee assumes and guaranties to pay annually, in quarterly instalments, a sum equal to seven per centum on the capital stock of the Erie and Pittsburg Railroad Company. Notice is hereby given that a dividend of one and three-fourths of one per cent., less the United States and Pennsylvania state taxes, will be paid to the stockholders of this company, on the 10th day of the months of March, June, September and December of each year.” * * *
    In consequence of this letter and the circular, the accounting officers assumed that, under the facts there disclosed, the increase of the capital stock was a stools dividend, and charged the company with state tax upon it.
    The company alleged that this was erroneous, and appealed.
    The ease was tried, upon the above-stated facts, November 26th 1872, before Pearson, P. J., who charged:—
    “ This case presents a single question — Has the Erie and Pitts-burg Railroad Company made or declared dividends during the year 1870, on which it has failed to pay taxes to the Commonwealth? If it has, the settlement made at the department was probably right. That the company has increased its capital stock during that time is very clear. Prior to the year 1870, the amount of capital stock was $999,600. By a resolution of the 19th of May 1870, each holder of stock was authorized, on the payment of four dollars, to have a share of stock, valued by the company at forty dollars, for.each share held by him. The actual value of this stock has not been shown; whether worth more or less than the four dollars is not in' proof. We have no other evidence of which to predicate the charge than the letter of William Brewster, the treasurer of the company, dated January 3d 1871. Does that show a dividend made or declared ? It shows that the stock was thereby increased nearly a million of dollars, and the report- of the 5th of December 1870 states that a dividend of seven per cent, was declared on the whole stock, the new as well as the old, amounting to $34,931.75, on which the tax of $1746.59 was paid. This was on $1,996,100 of stock. By the first section of an act passed March 24th 1864, this company was authorized to issue a preferred stock, not exceeding $500,000 in amount, to be sold at such prices as could be obtained, on which should be paid a dividend of eight per cent., if so much was earned, for the purpose of purchasing rolling-stock, improving the road and paying debts, &c. By a further supplement the company was authorized to increase its capital stock 20,000 shares, computed at fifty dollars each ;• to issue bonds not exceeding $30,000 per mile, bearing interest at seven per cent., and sell the same at or below par. See Act 3d April 1867. Afterwards, by an Act of the 28th of March 1870, authority was given it to sell its common stock, instead of the preferred stock. Under this latter act, the million of dollars in shares appear to have been sold. All of this legislation ten'ds to show the great embarrassment of the corporation and its struggle to keep up its road, and there is no proof in the case tending to establish that the million of dollars was the profits of the road, which should have been divided among the stockholders. This case has not the smallest resemblance to that of the Cleveland and Ashtabula Railroad, 5 Casey 370, the Crane Iron Company, 5 P. F. Smith 448, or the Atlantic and Ohio Telegraph Company, 16 Id. 57, in each and all of which actual dividends were earned and declared. Had it been proved that this company had earned money by which the value of its stock was increased, and the sale resorted to as a method of dividing it among the stockholders, we should hold it to be a stock dividend; but nothing of the kind is proved or pretended. The .state cannot be deprived of her taxes by any kind of evasion or legerdemain, but her claim, like that of all other plaintiffs, must be established by evidence. It certainly is not shown by the letter of Mr. Brewster, and that is the only proof laid before us. A dividend, both in common and legal parlance, is ‘ a portion, of the principal or profits divided among several owners of a thingBouvier’s Law Diet. Webster defines itto.be £ a part or share.’ In speaking of it in connection with moneyed corporations, we always understand it to be the share or profits coming to each holder of stock. From aught that appears in this case, it was a sale of stock at a very low price, in order to raise money. It is true, the privilege was given to stockholders ■alone ; but neither that nor the dividend soon after declared on the whole stock, prove that any money was earned by the company which should have been divided. On this increase of capital the state Was entitled to her bonus under the law. She also got her tax on the dividend, which very probably never was earned, but cannot claim it on the sale of the stock without more proof than was exhibited in the case. The jury will therefore render a verdict in favor of the defendant.”
    The Commonwealth took out a Writ of error, and in several specifications, assigned the charge for error ; also that the questions of fact should have been submitted to the jury.
    By Act of March 21st 1865 (Pamph. L. 498), for the purpose of “purchasing rolling-stock, making necessary improvements, &c., the defendants were authorized to issue preferred stock and sell it” to such persons and for such a price and on* such terms as they may deem best. By Act of March 28th 1870, they were authorized to sell “ their common stock in lieu of their preferred stock, * * * and on the same terms and conditions that are now authorized by law for the disposal of its preferred stock.”

      L. D. Gilbert, Deputy Attorney-General, and Wayne Me Veagh (with whom was Dimmielc, Attorney-General), for Commonwealth, plaintiff in error. —
    Their argument was in support of the following propositions: — ■
    “ 1. That the company made a dividend of its own stock.
    “ 2. That the Commonwealth was not obliged to show that said stock was actually worth what the par value of the shares imported.
    “ 3. That the Commonwealth was not obliged to show that the stock divided represented actual earnings.
    “ 4. That the company had no express legislative authority to divide its own stock without incurring liability to taxation.
    “ 5. That the fact disclosed by the company’s report that a dividend, at the rate of seven per cent, per annum, was made on the entire capital of $1,996,100, entirely repels the presumption that the stock distributed was not worth more than four dollars per share.”

      F. Jordan and L. W. Hall, for defendants in error.
   The opinion of the court was delivered, July 2d 1873, by

Agnew, J. —

The principle governing this case has been stated in the opinion just read in the case of The Commonwealth v. The Pittsburg, Fort Wayne and Chicago Railway Company, and its application to this case'is well disposed of by the learned judge in the court below. It is proper to add a few words to show the fallacy in the reasoning on which the Commonwealth rests. An analysis of the argument will be found to eventuate in this as its foundation, that upon every increase of the stock of a corporation by the act of its directors, under a power conferred by law, the legal presumption is that such increase is a stock dividend — that is to say, a division of the profits or property of the corporation among the stockholders. Hence, in the conclusion of the argumeat, we are called on to prescribe the rule that the increased stock shall be taxed at the legal rate, as upon a dividend made ; and it is said if this company be permitted to divide stock on the flimsy pretence of selling it, the corporation will escape taxation by the exerQjse of a little ingenuity. But the very reason thus given for making the presumption refutes it. Whether a thing is real or only a pretence is a question of fact, not of law. It is a pretence only, because the thing asserted or pretended is untrue, and this untruth must be tried by a jury upon evidence which proves its want of truth.

If a corporation, in a division of stock, assert that it is sold and paid for, or in any other manner disposed of without a division of profits or property of the corporation, how can a court assume, as a presumption of law, that the mode adopted is a fraud ? It is competent for the legislature to prescribe such a primfi facie rule, and thus compel the corporation to prove the real character of its increase of stock, in order to exempt itself from taxation ; but we cannot legislate in this wise. The presumption called for is no other than the old rule with men of the world, to believe every man a rogue until he is proved to be honest. It is a solecism in terms to call stock or capital a dividend. A dividend is not stock, but the product of stock or capital. New stock may be, in point of fact, a dividend, or product of the original stock. Its true nature, when probed, may be found to be a cloak to cover a dividend. But the cover must be stripped off before we can see this fact. The duty of lifting the cover and exposing the fraud lies on the officers of the Commonwealth, by producing the evidence. They cannot roll this load over upon the court by asking for a rule which reverses facts without a trial or means of ascertaining their unreality.

A corporation, as well as an individual, is entitled to the ordinary presumption of rightful action .until the contrary is shown. The auditor-general is clothed by law with large powers to compel the production of books, papers, documents and accounts, to take testimony, summon witnesses and compel specifications, and when an account is settled erroneously, may, with the state treasurer and attorney-general, open and revise the settlement. It would be unjust and unwarranted in the courts to draw unnatural presumptions and lay down rules which can be made binding only by the force of law. Judgment affirmed.


source: Caselaw Access Project

author: Mercur, J. —

license: Public Domain

text:
    Wapples’s Appeal.
    1. A testator gave “ for the sole use and benefit of' the First Presbyterian Church in the borough of Northumberland,” certain stocks, “ and that my executors shall sell" them, and when “ sold by my executors they shall loan the proceeds * * * only on undoubted bond and mortgage security ; the period the loan is to run I leave discretionary with my executors, that is with the consent of the pastor and ruling elders of said church ; and that my executors shall have written out the bond and mortgage made payable to and in the name of the ruling elders as aforesaid in office in trust for the First Presbyterian Church, (&c.), in office for ever;” the interest “shall be expressly applied by the elders aforesaid to so much salary due to the pastor, &o., for ever.” In an action to recover the fund which had been lent in the name of the executors on mortgage in Centre county, a dispute having arisen between the ruling elders and the executors as to the party entitled to it, the Court of Common Pleas of Centre county, on application of the mortgagor, allowed him to pay the amount into court, and directed satisfaction to be entered on the mortgage. Held to be correct.
    2. The testator at his death and the executor resided in Northumberland, and lettei'3 testamentary were granted there, &c. Held, that the Court of Common Pleas of Centre had no jurisdiction over the executor or the fund, and could not direct its investment in the name and for the benefit of “ The First Presbyterian Church of Northumberland.”
    3. The executoi'S being trustees ratione officii, were amenable to the Orphans' Court of Northumberland.
    4. Although executors are appointed trustees by name, the Court of Common Pleas and Orphans’ Court have concurrent jurisdiction.
    5. Acts of June 14th 1836, sect. 15, and April 7th 1859 (Trustees), construed.
    6. Brown’s Appeal, 2 Jones 333 ; Wheatley v. Badger, 7 Barr 459, remarked on.
    May 20th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Appeal from the Court of Common Pleas of Centre county: No. 5, to May Term 1873.
    The proceedings in this case arose under the will of John Porter, of the borough of Northumberland, in the county of Northumberland, deceased.
    The will was dated November 19th, 1850; the testator died in March 1851. The will was proved in Northumberland county, on the 24th of the same month, and letters testamentary granted to David Brantigam and William H. Wapples, the executors named in it.
    Amongst other things, the will made the following bequest:—
    “ I give and bequeath, for the sole use and benefit of the First Presbyterian Church or Congregation in the borough of Northumberland, which shall be held in trustfor the sole benefit and use of the aforesaid church or congregation in manner, as hereafter described for ever, to wit: forty shares of the capital stock of the Farmers’ and Mechanics’ Bank, located in the city of Philadelphia; eight shares of the capital stock of the Bank of North America, located in the city of Philadelphia; thirty-five shares of the capital stock of the Bank of Kentucky, located in the state of Kentucky; and thirty-three shares of the capital stock of the Bank of Northumberland. And that my executors hereafter mentioned, shall dispose of and sell all of the aforesaid bank stock as aforesaid recited, to the best advantage, at any time within the period of one year after my death, and that when disposed of, sold by, my executors, they shall loan the proceeds of the sale of the aforesaid bank stock to one or more persons, only on undoubted bond and mortgage security, on real estate. The interest to be paid semi-annually as hereafter described. The period of time that the loan as aforesaid shall run, I leave discretionary with my executors, that is with the consent of the pastor of the said church or congregation (if there be such at the time) and ruling elders of said church or congregation. And that my executors shall have written out the bond and mortgage, made payable to and in the name of the ruling elders, as aforesaid in office in trust for the First Presbyterian Church or Congregation of Northumberland, in office for ever. And the interest thus falling due and payable on said loan of bond and mortgage, shall be paid semi-annually by the mortgagor, to the ruling elders in office of the aforesaid church and congregation, and their successors in office for ever. And further, that the said interest thus-falling due and payable as aforesaid semi-annually on bond and mortgage as aforesaid, shall be expressly applied by the elders, as aforesaid, as so much salary due to the pastor for the time being, of the First Presbyterian Church and Congregation in Northumberland, semi-annually, for ever.”
    On the 6th of December 1871, the following petition was presented to the Court of -Common Pleas of Centre county:—
    “The petition of William Foster and Mark Halfpenny, executors, &c., of Robert M. Foster, late of Harris township, deceased, and William Foster, of said township, in his own right, respectfully represents: That the said Robert M. Foster and William Foster, on the 23d day of October, A. d. 1861, -executed their bond and mortgage to William H. Wapples and Daniel Brantigam, executors of the last will and testament of John Porter, late of Northumberland county, Pa., deceased, in the penal sum of seventeen thousand six hundred and fifty-four dollars, conditioned for the payment of the sum of eight thousand eight hundred and twenty-seven dollars, on the 23d day of October 1871, with interest thereon semi-annually to the ruling elders of the First Presbyterian Church in the borough of Northumberland, by them to be appropriated according to the intent, terms and directions of the last will and testament of the said decedent, reference, &c.
    “ That your petitioners have paid the interest on said mortgage, in full, up to October 23d 1871, leaving*due from your petitioners the principal sum of eight thousand eight hundred and twenty-seven dollars, with interest from October 23d 1871, to December 5th 1871, which is sixty-one dollars and seventy-nine cents, making the whole amount due from your petitioners, principal and interest, the sum of eight thousand eight hundred and eighty-eight dollars and seventy-nine cents. That there has a dispute arisen between Wm. H. Wapples, the surviving executor of the said John Porter, deceased, and the ruling elders of the Presbyterian Church of Northumberland, as to whom this said money or fund rightfully and legally belongs, and to whom the same should be paid, and written notices have been served on your petitioners by the said Wm. H. Wapples and the said ruling elders as aforesaid, both claiming this money, and the said Wm. H. Wapples, surviving executor of John Porter, deceased, has instituted a suit in the Court of Common Pleas of Centre county, to No. —, November T. 1871, against your petitioners for the recovery of the amount due on said bond. As your petitioners do not know, in view of these facts, who is entitled to receive the money and to whom the same should be legally paid, would ask leave of the court to pay the aforesaid sum of eight thousand eight hundred and eighty-eight dollars and seventy-nine cents, the amount due on said bond and mortgage, into court, and that said court will order and direct the recorder of mortgages in and for Centre county, to enter satisfaction on said mortgage, and also to direct the prothonotary of Centre county, to discontinue the aforesaid suit against your petitioners and to make such further disposition in the premises as your Honors shall deem fit and proper.”
    The executor, Wapples, protested against the application, for reasons set out in a paper filed by him.
    On this petition the court on the 22d of January 1872 granted a rule upon William H. Wapples, surviving executor, &c., to show ca-use “ why the money paid into court in this proceeding should not be paid over to the Ruling Elders of the First Presbyterian Church of Northumberland, for investment under and in accordance with the provisions of the will of the said John Porter, deceased.
    On the 1st February 1872, the court made the following decree: “ It appearing to the court that there are objections to the claim of the mortgagees named in the within-recited mortgage, leave is given to the mortgagors to pay into court the sum of eight thousand nine hundred and seventy-one 75-100 dollars, being the amount claimed on said mortgage, and it is ordered and decreed that satisfaction shall be entered upon said mortgage by the recorder of Centre county.”
    On the 22d of February 1872, the court (Mayer, P. J.), decreed that the money paid into court “shall be invested in real estate security, to be approved by the court or a judge thereof. The said security to consist of a bond and a mortgage drawn in the name of and payable to ‘ The First Presbyterian Church of Northumberland,’ Pennsylvania, the interest on said sum so invested to be payable semi-annually to the ruling elders of the said ‘ First Presbyterian Church’ and their suecéssors in office for ever, to be by them appropriated according to the terms and direction contained in the last will and testament of John Porter, deceased.”
    The executor, Wap pies, appealed to the Supreme Court and assigned for error:
    1. Allowing the amount of the mortgage to be paid into court and ordering satisfaction to be entered on the record.
    2. Not ordering the money to be paid to the surviving mortgagee.
    3. Ordering the money paid into court to be invested as set out in the decree.

      J. W. Oomly (with whom were W. I. Gtreenough and E. $ E. Blanchard), for appellant. —
    The proceeding to pay the mortgage-money into court, &c., should be in equity: Act of April 3d 1851, sect. 14, Pamph. L. 871,1 Br. Purd. 481, pi. 118. The surviving executor was trustee of the fund and entitled to it: Tyson’s Appeal, 3 Barr 363. The jurisdiction over the fund was in-the courts of Northumberland county: Brown’s Appeal, 2 Jones 333.
    There was no paper-book or argument on the other side. J. M. Orvis and J. A. Beaver were of counsel with the appellees.
   The opinion of the court was delivered, July 2d 1873, by

Mercur, J. —

We see no error in permitting the mortgagors to pay into court the amount due upon the mortgage, and in ordering satisfaction to be entered upon the mortgage. The sum paid was the full amount claimed by the appellant, and he was in no wise prejudiced by its payment.

When, however, the court went further; when, against • the protest of the mortgagee, the court ordered the money to be invested in the name, and for the benefit of a third party, it exceeded its powers. It had no such jurisdiction over the trustee, nor over the fund.

The appellant was the surviving executor and trustee under the will of John Porter, at the time of the execution of said will, and at the death of the testator, he and the executors were residents of the county of Northumberland. The church for whose use and benefit the fund was devised, then was and still is in the same county. The will was proved in said county, and letters testamentary thereon were granted by the register thereof. The Orphans’ Court of Northumberland county thereby acquired jurisdiction of their accounts. The executors were made trustees ratione officii and not nominativa. It was a trust annexed to the office of executor, which they accepted by taking letters testamentary, and are bound as executors to fulfil. They are amenable to the Orphans’ Court as' executors for the non-performance of that, as well as of other trusts imposed by the will: Innes’ Estate, 4 Whart. 184.

The 15th section of the Act of 14th June 1836, Purd. Dig. 1417, pi. 15, which gives to the Courts of Common Pleas jurisdiction in cases of trust therein mentioned, not only restricts its exercise to “the Court of Common Pleas of the county in which any such trustee shall have resided at the commencement of the trust,” but it further provides, “that nothing therein Contained shall extend to trusts created by will or vested in executors or administrators, either by the words of the will, or by the provisions or operations of law, whenever such executors or administrators are by the existing laws amenable to the Orphans’ Court.”

In Wheatly v. Badger, 7 Barr 459, it was held, that where the will constitutes the executor a trustee, by name, and not virtute officii, the Orphans’ Court had no jurisdiction over the trust. But in Brown’s Appeal, 2 Jones 333, that decision was overruled, and .it was held, that although the trustees are appointed nominatim, yet the Orphans’ Court had concurrent jurisdiction with the Common Pleas in cases of testamentary trusts; that the object of the statute of 14th June 1836, was to give power to the Common Pleas, and not to take it from the Orphans’ Court. It gives to the Common Pleas concurrent jurisdiction, except in cases where, by the proviso, jurisdiction is saved exclusively to the Orphans’ Court: Seibert’s Appeal, 7 Harris 53. Where the testamentary trust is given to the executors virtute officii, jurisdiction is exclusively in the Orphans’ Court: Innes’ Estate, supra; Brown’s Appeal, supra; Seibert’s Appeal, supra. Since the last of these decisions was made, the first section of the Act of 7th April 1859, Purd. Dig. 1423, pl. 54, has given to the Orphans’ Courts of the several counties of this Commonwealth, full power and authority in all eases of trust derived under or created by any last will and testament, whether vested in executors or trustees, to dismiss such trustees from office, when there has been waste or mismanagement in the administration of said trust, or whenever the trustees shall fail or neglect to pay over the principal or income of the trust funds according to their duty under their several trusts, or fail to comply with any order of said courts in relation to said trusts; and shall further have power to make all orders for the securities and moneys belonging to said trusts.

The will of John Porter directs, “ that my executors hereafter mentioned shall dispose of and sell all of the aforesaid bank stock;” and “ when disposed of, sold by, my executors, they shall loan the proceeds,” and that “my executors shall have written out the bond and mortgage.” Thus, every act which the testator directed to be performed for the purpose of passing this fund over to the ruling elders for the use and benefit.of the church, was to be per formed by the executors virtute officii. Hence, it follows, that even the Court of Common Pleas of Northumberland county, where the executor resided, had no jurisdiction over this trust fund, and still less authority is there for the Court of Common Pleas of Centre county assuming its exercise.

The learned judge, therefore, erred in taking the funds out of the control of the appellant, and directing their investment. The rights of the several claimants to this fund must be-settled in and through the Orphans’ Court of Northumberland county. There the appellant must settle his stewardship. To enable him to do this the fund must be restored to him. This disposition of the case makes it unnecessary to consider the other assignments of error.

This cause came on for hearing on an appeal from the order of the Court of Common Pleas of Centre county, and was argued by counsel at Harrisburg, and now, July 2d 1873, on mature consideration thereof, it is ordered, adjudged and decreed, that the said order of the Common Pleas, permitting the ruling elders of the First Presby- , terian Church of Northumberland, to take the said sum of $8971.75 out of court, and( directing'its investment, be reversed and set aside, and that the rule granted to said elders be dismissed at their costs. And it is further ordered that the said trust fund be paid over to the appellant, and the costs of this appeal be paid.out'of the same; and the cause is remanded to the said Common Pleas with directions to carry this decree into execution.

Sharswood and Williams, JJ., dissented.


author: Sharswood, J. —

text:
    The Commonwealth to the use of Dauphin County versus Hoffman.
    1. A rule of court required an affidavit of defence in actions on bills, &c., records and other writings for the payment of money ; Held, that a sheriff’s recognisance was not within the rule, it being for the performance of a collateral condition.
    2. The condition of a sheriff’s recognisance is not broken by his refusal to repay to the county commissioners over-payments to him as fees.
    3. Where by the record there appears to be no ground for a lawful judgment, a court of error will reverse, although there be no affidavit of defence.
    4. Harres v. Commonwealth, 11 Casey 416, distinguished. Philadelphia Savings Institution v. Smith, 10 Barr 13, criticised.
    May 20th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Dauphin county.

      This was a scire facias, at the suit of the Commonwealth, for the use of Dauphin county, against Jacob D. Hoffman, on his recognisance as sheriff of that county. The writ was issued November 15th 1870.
    The recognisance was acknowledged November 28th 1866, and was in the penalty of $15,000, with the usual condition that the sheriff execute all process, and pay to parties and suitors interested in such process all moneys belonging to them which shall come into his hands, and “faithfully execute and perform all and singular the trusts and duties to the said office lawfully appertaining.”
    By the 52d rule of the Court of Common Pleas, in all actions on bills, &c., -records and other writings for the payment of money, plaintiff, after thirty days from the return-day, may enter judgment, “ unless the defendant shall have previously filed an affidavit of defence, setting forth the nature and character of the same, but no judgment shall be entered unless the plaintiff shall, on or before the return-day of the original process, file in the office of the prothonotary, with his narr. or statement, a copy of the instrument of writing, book-entries, record or claim on which the action has been brought. * * * But where the action or writ is
    founded on a record on file, or contained among the records of the county, a declaration or statement filed, or a scire facias issued thereon, together with a reference in the precept to the original, shall be deemed a sufficient filing of a copy of the record or claim on which the action has been brought.” * * *
    The praecipe was:—
    “ See recognisance entered info by Jacob D. Hoffman, late sheriff of Dauphin county, November 28th, A. D. 1866, and duly certified to the prothonotary of the Court of Common Pleas of said county, and by him entered in Judgment Docket to No. 49, January Term, a. D. 1867, for $15,000.
    “Issue scire facias on the above-stated recognisance against defendant; for that whereas the said Jacob D. Hoffman, late sheriff of said county, did not and would not, at all times during his continuance in the office of sheriff of Dauphin county, well and faithfully execute and perform all and singular the trusts and duties to the said office appertaining lawfully, in this, that the said Jacob D. Hoffman, sheriff as aforesaid, did, at sundry times during .his official term, unlawfully obtain of and from the said county, from and through her officers, divers sums of money, amounting in all to the sum of two thousand nine hundred and ninety-one dollars and ninety-seven cents, in excess of all moneys and fees which, by the laws in force within this Commonwealth, he was entitled to obtain and receive as sheriff; that he, the said Jacob D. Hoffman, sheriff as aforesaid, did neglect and refuse, and still does neglect and refuse, to pay unto the said county, or her proper officer or officers, the said sum of two thousand nine hundred and ninety-one dollars and. ninety-seven cents, so had and received in the manner aforesaid, and found to be'due said county from him, the said sheriff, by the auditors thereof, as by their report made as required by law, will appear, although often thereunto requested; whereby the said plaintiff has been and is damnified — all of which is set forth as a breach thereof. Returnable next return-day.”
    The scire facias was in accordance with the praecipe, and was returned “ Served.”
    On the 8th of November 1871 judgment was entered against the defendant for $3305.12, for want of an affidavit of defence.
    On the 2d of July 1872, on application of the defendant, a rule was granted to show cause why the judgment should not be stricken off, for the following reasons :—
    “ 1. That the declaration qr statement filed does not exhibit a case within the 52d rule of court.

      “2. That judgment is taken for more than the amount set forth in the statement, or praecipe, or scire facias.
    “ 3. That the statement does not set forth that the amount for which suit was brought was obtained from the county or her officers in his official capacity.
    “ 4. That there is no date of the county auditors’ report given in the praecipe or scire facias, on which the judgment is supposed to be founded.

      “ 5. And generally, that the whole proceeding in the said action is illegal, informal and not in accordance with the requirements of the Act of Assembly.” •
    On the 21st of September 1872 the rule was made absolute, and the judgment was stricken off.
    The defendant then pleaded to issue.
    The cause was tried January 27th 1873, before Pearson, P. J.
    The plaintiff gave in evidence the report of the county auditors, dated February 10th 1870, on the'accounts of the defendant as sheriff, showing in items his claims against the county, amounting to $5215.60. The auditors certified:—
    “ The auditors also further report that they carefully and fully examined the accounts of Jacob D. Hoffman, late sheriff, and find that he received from the county funds, while sheriff, the sum of eight thousand two hundred and seven dollars and fifty-seven cents, while his accounts, as audited and allowed by us under the fee-bills, amount to only fifty-two hundred and fifteen dollars and sixty cents, leaving a deficiency of twenty-nine hundred and ninety-one dollars and ninety-seven cents.”
    Plaintiff also gave in evidence vouchers, showing that the defendant had received from the commissioners, upon their orders on the county treasurer, the sum certified by the auditors. The sums were received for “ sheriff’s fees,” and the orders were so made out.
    The report was never presented to the court or passed on by it.
    There was evidence also that the defendant, with his counsel, was present whilst his accounts were being examined by the auditors.
    The court charged:—
    * * * “ This report cannot for all purposes have the effect of a judgment; it certainly is not a lien. Although the report was placed in the office, and marked filed by the officer, yet it never was presented to the court, or filed by its order; was never entered on the record in any way, or placed on the lien-docket. We therefore greatly doubt its being conclusive against the sheriff. He, perhaps, could yet appeal. But the main point here is, does the claim, as proved in court by the vouchers, come within the terms of the recognisance? There is no doubt but that Jaeob D. Hoffman owes the money to the county. It must be borne in mind, however, that a judgment against the sheriff on his recognisance is conclusive on his sureties. They are bound to pay all of his official indebtedness which is covered by the recognisance, but they are ■obligated for nothing more. The terms of the recognisance are, in substance, that the sheriff shall, without delay, and according to law, serve and execute all writs and process which shall be directed to him, and, on request, pay to the several suitors or parties interested in the execution of such writs and process, all and every sum or sums of money to thorn due or owing, which shall come into his hands; and shall, during his continuance in the office of sheriff, well and faithfully execute and perform all and singular the trusts and duties to said office lawfully appertaining. This claim is not founded on the failure to execute process, or to pay money to suitors which came into his hands. Is there a failure to execute and perform the trusts and duties to his office appertaining ? We think not, and so instruct you. The uncontradicted evidence shows that this money was not collected for others, but for the sheriff himself. There is no obligation orí the part of the bail to refund overpayments made to the sheriff. The money was-rashly and improperly paid by the county commissioners, without any laivful claim on the county by him. It is true he alleged it would be coming to him ,for fees, but that kind of claim does not bring the case within the sheriff’s recognisance. ‘ It is not different in principle from his saying to a debtor: ‘ I shall probably have a writ against you next week, therefore you had better pay the judgment to me.” Such a payment would not discharge the debt, and the party paying would still be bound. So here. The county auditors could, with quite as much propriety, have charged the commissioners with this mispayment. It is money which came into the hands of the sheriff unlawfully, and for which his recognisors are not held. The sheriff must be sued in assumpsit for money had and received; it cannot be collected on the recognisance. Your verdict must therefore be in favor of the defendant.”
    The verdict was for the defendant.
    The defendant sued out a writ of érror and assigned for error the striking off the judgment and the charge of the court.

      J. H. Weiss, for plaintiff in error. —
    Judgment may be taken for want of an affidavit of defence on an obligation for the performance of a collateral condition: 1 Tr. & H. Pract. 369, 371; Harres v. Commonwealth, 11 Casey 416; Baker v. Olwyne, 2 Miles 404; Watkins v. Phillips, 2 Whart. 210. Entering such judgment is to be tested by the affidavit of defence, not by the claim : Dewey v. Dupuy, 2 W. & S. 553; Bank U. S. v. Thayer, Id. 447. The report of the auditors is conclusive against the sheriff and his sureties: Blackmore v. Alleghany Co., 1 P. F. Smith 160.

      M. W. McAlarney and JD. Mumma (with whom were J. W. Simonton and R. A. Lamberton), for defendant in error. —
    Bonds with collateral conditions are not within the affidavit of defence law: Boas v. Nagle, 3 S. & R. 250; Commonwealth v. Steelman, 2 Miles 405; McFate v. Shallcross, 1 Phila. R. 40. Plaintiff on a sheriff’s recognisance must prove damage from the officer’s official misconduct: Commonwealth v. McCoy, 8 Watts 153; McCoy v. Reed, 5 Id. 300; Commonwealth v. Reynolds, 17 S. & R. 369; Blue v. Commonwealth, 4 Watts 216; McMicken v. Commonwealth, 8 P. F. Smith 214.
    The auditor’s report is not conclusive on the sheriff and his sureties: Irish v. Commonwealth, 3 Binn. 96. The balance found due is not within the condition of the recognisance: Commonwealth v. Swope, 9 Wright 535.
   The opinion of the court was delivered, July 2d 1873, by

Sharswood, J. —

The court below committed no error in striking off the judgment entered for want of an affidavit of defence. The recognisance sued upon was certainly not one of those specified in the rules of court, nor was it a record for the payment of money, but for the performance of collateral conditions. Harres v. The Commonwealth, 11 Casey 416, does not support the contention of the plaintiffs in error, that a recognisance of this character is within the meaning of such a rule. That-was an action in the Quarter Sessions upon a forfeited recognisance for the appearance of a party. There was a rule of the court for an affidavit of defence specially on such recognisances. The main question was, had the court power to make such a rule? It is true that Mr. Justice Thompson expresses the opinion that such a recognisance is an instrument for the payment of money. It is to be remembered that it was under the Act of April 22d 1846, Pamph. L. 477. Primd facie the whole sum named is forfeited and recoverable. The court may, on equitable grounds, respite or relieve from the forfeiture. The decision, therefore, has no bearing upon the case now before us. We think the learned judge was right, also, in holding that the scire facias did not allege what amounted to any breach of the condition. This was that the sheriff should well and truly serve and execute all writs and process, and from time to time, upon request, pay or cause to be paid to the several suitors and parties interested in the execution of such writs and process, all sums of money to them belonging, and well and faithfully execute and perform all and singular the trusts and duties to the said office appertaining. The scire facias alleged that the defendant did not well and faithfully execute and perform all and singular the trusts and duties to the said office appertaining lawfully, in this, that he did at sundry times during his official term, unlawfully obtain from the said county, from and through her officers, divers sums of money, in excess of all moneys and fees, which, by the laws in force within this Commonwealth, he was entitled to obtain and receive as sheriff. In other words, it is a claim to recover back, under the recognisance, an overpayment made to him by the county treasurer, by the order of the county commissioners. No doubt the sheriff is personally liable to the •county in an action for money had and received. But how is his neglect or refusal to pay the debt, which he owes, any violation of his official duties ? It was altogether an illegal act on the part of the county commissioners to draw orders for such payments. No limits can be assigned to the liabilities of the sureties if such a construction' of the condition of the recognisance should be supported. They might as well be held responsible if the sheriff should break into and rob the fireproof in the office of the county treasurer.

As, however, no affidavit of defence was filed in the court below, reliance is now placed upon the determination in The Philadelphia Savings Institution v. Smith, 10 Barr 13. It was there held that if no affidavit of defence has been filed, a judgment will not be reversed because the instrument, a copy of which was filed, was not such as under the Act of Assembly of March 28th 1835, Pamph. L. 89, entitled the plaintiff to judgment. That decision certainly took the profession by surprise, and in the District Court of Philadelphia, it was the subject of frequent reference and discussion. That court then resolved to consider it as a rule of practice in error merely, not therefore a rule for their guidance. Indeed the short per curiam opinion in that case appears, in conclusion, to rest it upon that ground. “ The judge is not bound to look at the cause of action till he has been possessed of the affidavit of defence; and it is not our business to reverse his judgment for an error which, he did not commit.” But even as a rule of practice in error it is anomalous. Wherever upon the face of the record there appears no ground for a lawful judgment, the court of errors will reverse. Thus if the declaration shows no cause of action, though there has been no demurrer or motion to arrest the judgment in the court below: Hoffer v. Wightman, 5 Watts 205; Clay v. Irvine, 4 W. & S. 232. The Acts of Assembly or the rules of court— and without either the court could give no judgment without an issue of law — or an issue of fact tried by a jury, when the defendant has appeared — only authorize such judgments in special cases, when copies of instruments of a particular description are filed, or set forth in the writ, and a judgmént upon an instrument not of this character is no more warranted than if there had been none at all filed or suggested. A plaintiff might otherwise obtain judgment upon a paper not purporting to be signed by the defendant, but by somebody else. The case of The Saving Institution v. Smith, has been silently disregarded in more than one subsequent determination in which if applied as the rule of practice it would have prevented a reversal. In Dewart v. Masser, 4 Wright 302, there was a judgment under a rule of court. No affidavit was filed, and the judgment was reversed in this court on the ground that the copy filed was not of an instrument of writing for the payment of money within the terms of the rule. Mr. Justice Strong said: “A judgment was signed in the court below, for want of an affidavit of defence, avowedly according to rule, and the question now is whether such a judgment was authorized by any rule of the court. If the plaintiff’s claim was not within the rule, then the defendant was in no default for not having filed an affidavit, and the prothonotary had no authority to sign judgment. So, if no cause of action was set out in the declaration, and a declaration was requisite, there is nothing to sustain a judgment.” The fact that under the rule, the judgment w“as signed by the prothonotary made no difference. His act was the act of the court. So in Eshelman v. Thompson, 12 P. F. Smith 495, under an Act of Assembly for Indiana county, no affidavit had been filed. The judgment was reversed because the copy of the lease filed was not an instrument of writing for the payment of money. Besides, if the defendant is compelled to file an affidavit in such cases, he will be required to swear to a mere point of law, of which he is generally incompetent to form an opinion.

If the learned judge was right, as we hold that he was, in the opinion that the breach alleged in the scire facias was not within the terms of the recognisance, the question as to the report of the auditors became entirely immaterial. Whether that report had the effect of a judgment and was conclusive upon the sheriff of such an amount owing by him, might be very material in another form of action, but as it showed on its face that he was charged, not with, anything for which he was liable officially, — it had nothing to do with the issue. What the judge said in his charge to the jury, whether right or wrong, therefore, did the plaintiffs in error no injury of which they have any right to complain.

Judgment affirmed.


author: Agstew, J. —

text:
    Confer et al. versus McNeal.
    1. Jacob, by articles sold land to Samuel, his brother; after the death of both the land was sold by the administrator of Jacob for the payment of his debts ; in ejectment for the land there was evidence by the purchaser that the sale to Samuel was fraudulent as against Jacob’s creditors. Held, that a paper in Jacob’s handwriting, made after Samuel’s death, without date or signature, found amongst Jacob’s papers after his death, showing it was not an actual sale to Samuel, although there was no evidence of Samuel’s knowledge of the paper or its contents, was evidence on the question of fraud.
    2. The least concert or collusion between parties to an illegal transaction makes the act of one that of all.
    May 21st 1873.
    Before Read, C. J., Agnew, Siiarswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Blair county: No. 55, to May Term 1873.
    This was an action of ejectment, brought September 3d 1867, in the court below, by Matilda A. Confer, widow, and Louisa J. Confer and others, children and heirs of Samuel Confer, deceased, against Hugh McNeal, for the undivided half of a tract of 200 acres of land. _
    The case was tried January 30th 1872, before Dean, P. J.
    The title to the whole tract had been in Jacob Confer, and previously to the 31st of August 1853, he had sold an undivided half to Jacob Eickes. On that day, by articles of agreement, he contracted to sell the other half to Samuel Confer, who was his brother, for f300, a deed to be made in one year, when the purchase-money was to be paid; a book account of Samuel against Jacob by the terms of the agreement was to be deducted from the purchase-money. The deed was not made1 in accordance with the covenants of the agreement. Samuel died in September 1858, intestate, leaving a widow and children, the plaintiffs. In 1862, Jacob died intestate, leaving a widow and children.
    In July 1865, the administratrix of Samuel applied to the Orphans’ Court for a decree for the specific performance of the contract between Jacob and Samuel for the sale of the land in dispute.
    The court made the decree as prayed for, and on the 10th of May 1866, in pursuance of the decree, Henry Wertz, administrator, &c., of Jacob Confer, deceased, made a deed for the premises to Matilda A. Confer, plaintiff, in trust for the widow and heirs of Samuel Confer, deceased.
    The. widow and children of Jacob Confer, after his death, conveyed their interest in the premises to David R. Lingafelter. Subsequently Henry Wertz, administrator, &c., of Jacob Confer, deceased, obtained an order for the sale of the premises for the payment of debts. In pursuance of the order they were sold to David R. Lingafelter, and a deed made to him by the administrator September 26th 1864. Lingafelter, on the 20th of February 1865, conveyed to Hugh MeNeal, the defendant.
    The defendant gave evidence to show that in May 1853, Jacob Confer was insolvent; that in 1855 Jacob’s personal property was sold by the sheriff, “almost everything,” bought by Samuel and permitted by him to remain in Jacob’s possession. The widow of Jacob testified that the sale was “ a sham.” Also, evidence that Jacob said he had “fixed” his creditors by assigning his land to Samuel; that he had put his property into Samuel’s hands to get rid of some debts; that the administrator never claimed the purchase-money under the agreement from Samuel; that Jacob retained possession of the land, and claimed it as long as he lived, rented it, sold wood off it, &c.; that_Samuel never exercised any acts of ownership over it. There was other evidence to show that the sale of the land by'Jacob to Samuel was colorable and for the purpose of defrauding Jacob’s creditors.'
    The plaintiffs then gave evidence in rebuttal, for the purpose of disproving any fraud in the sale.
    The defendant offered in evidence a paper, proved to be in the handwriting of Jacob, and found amongst his papers after his death. The paper was without date or signature. The object of the offer was to show that the agreement for the sale of the land was fraudulent as to creditors, &c.'
    It was objected to by the plaintiffs, because it was without date and Samuel was not a party to it, &c.
    The evidence was admitted by the court and a bill of exceptions sealed.
    The paper is as follows:—
    “ A separate bargain Samuel Confer and me had at the time I sold my interest of the land in dispute with Doctor P. Shoenberger to Samuel; — it was this, that Samuel and Fickes were to carry on the lawsuit the same as Fickes and me had it, that is, each one were to pay half the expenses of the suit, and Samuel was to keep a true account of all it cost him for witness fees and his lost time and trouble, and all expenses that originated at the suit, and after the suit was settled the land was to be sold to the highest price could be got for it. Samuel was to have his pay, and if any balance, it was to come to me or my heirs or assigns; for this we were to make separate articles for each one to hold a copy so neither of us could be cheated; but this was not done by him, dropping off so soon, the balance of book account I was due him at the time I sold to him was to come out of the three hundred dollars he was to pay me according to the article in the hands of Hoffius.
    “ N. B. And these separate articles were to be made before I made the deed of conveyance to Samuel Confer.”
    The verdict was for the defendant.
    The plaintiffs took out a writ of error, and assigned for error the admission of the evidence objected to.

      A. S. Landis (with whom was T. Banks), for plaintiffs in error. —
    Samuel was not in any way connected with the paper and could not be affected by declarations made by his vendor in his absence : Scott v. Heilager, 2 Harris 238. It was a declaration of a vendor after sale: Packer v. Gonsalus, 1 S. & R. 526; McCulloch v. Cowher, 5 W. & S. 431; Gregory v. Griffin, 1 Barr 208; Hoffman v. Lee, 3 Watts 352; Lloyd v. Lynch, 4 Casey 424; 1 Greenl. on Evid., § 180.

      S. S. Blair, for defendant in error. —
    The slightest evidence of a fraudulent combination opens the door to the declarations of the grantor: Rogers v. Hall, 4 Watts 359; Bredin v. Bredin, 3 Barr 81; Gibbs v. Neely, 7 Watts 306; Deakers v. Barker, 5 Wright 234.
   The opinion of the court was delivered, July 2d 1873, by

Agstew, J. —

The plaintiff in this ejectment claimed the land in controversy under an article of bargain and sale, dated in 1853. A defence set up to the bargain was, that it was a fraudulent agreement between the two brothers, Jacob and Samuel Confer, to protect Jacob’s property against his creditors; and McNeal, the defendant, having purchased at a sale for the payment of Jacob’s debts, was in a position to contest the sale to Samuel. Samuel Confer never took possession under his contract, but suffered Jacob •to remain on the land, taking all the profits and selling timber to •a very large amount. Shortly after this bargain, Jacob confessed ■a judgment to Samuel, under which Jacob’s personal estate was sold and bought in by Samuel, but suffered by him to remain with •Jacob, no money passing from Samuel to the sheriff upon the sale. It was in proof also, that Jacob was largely in debt, and died insolvent. Besides these facts there was evidence that the sale to Samuel was merely colorable. Jacob’s wife testified it was a sham, and his administrator testified that he never set up a claim to the purchase-money under the contract between Jacob and Samuel. Altogether the evidence of collusion between the two brothers was ample. It was stronger than the evidence of collusion in the cases of Bredin v. Bredin, 3 Barr 81; Gibbs v. Neely, 7 Watts 305; Rogers v. Hall, 4 Watts 361; or Deakers v. Temple & Barker, 5 Wright 234. After this evidence had been given the defendant offered a paper in the handwriting of Jacob Confer, found among his papers after his death, but not signed, containing a memorandum of the understanding between Samuel and himself, in relation to the bargain for the land. The purpose of the offer was to show that the bargain was fraudulent as to Jacob’s creditors. It was objected to because the memorandum was without date ; Samuel was no party to it, and could not be affected by Jacob’s subsequent declarations. Had there been no precedent evidence of collusion between Jacob and Samuel, these objections would have been fatal, and the authorities cited by the plaintiff in error would have been in point. The absence of evidence of collusion, fraud or concert, is the very ground on which Judge Coulter puts' the decision in Scott v. Heilager, 2 Harris 238. And in all the cases cited the ground of decision is, that an absent vendee is not to be affected by the declarations of his vendor, when not a party to a fraud. On the other hand, as said by C. J. Gibson, in Rogers v. Hall, 4 Watts 361, the least degree of concert or collusion between parties to 'an illegal transaction, makes the act of one the act of all. This is repeated by Judge Rogers, in Gibbs v. Neely, 7 Watts 307. And so in MacKinley v. McGregor, 3 Wharton 397. The strongest case of all on this point is Bredin v. Bredin, supra. There was no evidence of any acts or declarations on the part of John Bredin before he accepted his brother James’s bond, to connect him with the fraud on James’s creditors. Consanguinity and certain coincidences in his subsequent acts were the only evidence; yet there, Gibson, 0. J., said, that after much reflection he had changed his first opinion, and he supported the evidence of James’s declarations, which went to impeach the bond in the hands of John. In Deakers v. Temple & Barker, supra, it was said by Justice Woodward, that all experience proves, and rules of evidence are founded in human experience, that, if fraud is to be detected, under the various cloaks it puts on, the conduct of the parties before and after the fact complained of, as well as in immediate connection with it, must be freely examined. Justice Rogers says, in MacKinley v. McGregor, supra:For this purpose (fraud) all the transactions of Mrs. MaeKinley, and her declarations, in connection with the business in which she was engaged as the agent' of her husband, were properly admitted in evidence. It is true, that a disposition to cheat one person cannot be called in to aid evidence of fraud in a subsequent or prior and distinct transaction. But when it is one of a series of acts, although with distinct and different persons, it may be received to prove a general combination, or preconcerted plan to cheat and defraud, of which the one in controversy may be the result.” In this case the memorandum was both an act and a declaration of Jacob, corroborative of the prior scheme of fraud to baulk his creditors. It was a continuation on his part of the collusive combination, and tended to strengthen the proof. But it is said it ought not to have been received in evidence, because Samuel was dead when Jacob made the memorandum. But Samuel’s death did not put an end to the scheme of fraud already participated in by him, or destroy the propulsive force he set in motion by his concerted act. How then could his death put out of sight an act of the survivor in pursuance of and in perpetuation of the fraud both had put into motion. True, Jacob's act after his death would not be primary evidence against Samuel, to establish the joint concert; but as an effect of the producing cause (the collusion already proved), and as one of a series of acts in the same direction, it corroborated the evidence of what had gone before, and therefore had some weight in the chain of proof, and this it was for the jury, and not the court, to determine. It may be slight, yet there was no error in receiving it. Judgment affirmed.

Williams and Mercur, JJ., dissented.


text:
    Ake and Feay’s Appeal.
    1. The Orphans’ Court has not general equity jurisdiction, and under equity rules is not enabled, when once possessed of a cause, to make an end of the controversy.
    2. The jurisdiction of the Orphans’ Court is special and derived entirely from statute, but it applies equity rules and principles to make its jurisdiction effective.
    3. Under its authority to decree specific execution, it has power to inquire whether the whole or how much of the purchase-money has been paid; but its jurisdiction is exhausted when it has decreed specific performance.
    4. In an account between the parties to ascertain whether the purchase-money has been paid, it cannot make a decree against the representatives of the vendor for a balance over-paid by the vendee.
    5. A contract under seal was made for the sale of land, an agreement not under seal in connection with it was endorsed on it and made part of it; afterwards the vendor stipulated by another endorsement under seal to comply with the contract. Held, that this made the whole a specialty so as to avoid the bar of the Statute of Limitations.
    May 21st 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Appeal from the Orphans’ Court of Blair county: Of May Term 1873, No. 43.
    The proceeding in this case was commenced February 2d 1866, upon the petition of Thomas Patterson, setting out that, on the 1st of October 1851, he made a contract in writing with Jacob Duck, by which Duck contracted to convey to him the undivided one-fourth of a tract of land in Cambria county, containing three hundred and seventy-seven acres, the tract being held in common with Johnston Moore; the petitioner to pay, as the consideration, $600, in the manner stated in the petition. The petition further alleged that the tract was chiefly valuable as timber-land, having a sawmill on it, and had been used by Duck and Moore for sawing-timber. Moore having received a larger amount than Duck, it was stipulated by Duck, in a memorandum in writing, signed by him and endorsed upon the contract on the day of its date, that the petitioner should have his share of the timber required to equalize him with Moore, hauled by Duck at his expense; and thereafter his share of all the timber sawed at the mill; and that afterwards, on the 18th of April 1859, Duck, by another memorandum in writing, under seal, bound himself to comply with all the conditions of the agreement. The petitioner averred that he had made various payments to Duck on the land, which, with what Duck had received from the proceeds of the saw-mill, the whole purchase-money was paid, and a large balance was still due to the petitioner; that Duck had continued to saw timber at the mill for a number of years after the date of the contract; that the petitioner was entitled to one-fourth of the proceeds, and that Duck had not accounted for it to the petitioner; that Duck died on the 24th of August 1861, without having made any provision for executing the contract, having made a will appointing Henry L. Ake and James J. Feay, executors, and leaving a widow, Sophia Duck, and a number of children and grandchildren (naming them).
    The prayer was for a decree for specific performance of the contract, and that the executors be required to pay the balance due to the petitioner, and execute to him a deed in fee simple, and for further relief.
    The executors answered that the purchase-money had not been paid, nor any considerable part of it, and that they believed Patterson was indebted to Duck’s estate.
    The article of agreement was as set out in the petition. The following memoranda were endorsed on it:—
    “ It is understood that whatever timber it will take to make Jacob Duck equal to what J. Moore has hauled to the saw-mill, the said Duck agrees to haul it at his own expense, and Patterson is to have his share out of all that is sawed from this day. In witness whereof I have hereunto set my hand this 2d day of October, a. d. 1851. Jacob Duck.”
    *

      “$100.00.
    “ Received, Williamsburg, April the eighteenth 1859, of Thomas Patterson, one hundred dollars on the article of agreement in relation to the saw-mill property on the Allegheny mountain, the same now called the Rough and Ready saw-mill, and I promise to make the deed and comply in every respect with the conditions as stated in said agreement. In witness whereof I have hereunto set my hand and seal this day above written.
    “Jacob Duck [l. s.].”
    Thomas McCamant, Esq., was appointed auditor in the matter.
    The auditor took a large amount of testimony and examined a large number of accounts. He reported these facts in the case, amongst others:—
    “ That at the time Duck and Patterson entered into contract for sale and conveyance of said land, referred to in petition, an ej ectment was pending for said land in the Court of Common Pleas of Cambria county, and that in February 1852 James Ross, plaintiff in said ejectment, was put in possession of the land, and continued to hold possession of the same for almost five years. It is also conceded by the parties that, during the time Ross continued in possession of the land, he stripped it of considerable timber.”
    The principal questions raised before the auditor and considered by him were: whether he had jurisdiction to state an account between the parties; whether the Statute of Limitations was a bar to the stipulations of the memorandum of October 2d 1851, and whether the timber cut off by Ross should be defalked from the purchase-money.
    The auditor decided that he had authority to state an account; that the timber taken by Ross should be deducted. from the purchase-money, and that the Statute of Limitations was not a bar — ■ saying
    “We think the memorandum was intended for part of the agreement, and look upon it as such. If, then, we consider the memorandum an enlargement and part of the contract entered into between Duck and Patterson, your auditor holds that the Statute of Limitations would not run against the same, on account of Duck afterwards, by his agreement in writing, under seal, and bearing date 18th April 1859, agreeing to comply in every respect with the article of agreement in relation to the saw-mill property.” * * *
    The auditor stated an account, finding that all the purchase-money had been paid by Patterson, and that there was still due from the estate of Duck to Patterson the sum of $865.88.
    Exceptions were filed to the report of the auditor. They were overruled by the court, the report confirmed and a decree made “ that H. L. Ake and James J. Feay, executors of the last will of Jacob Duck, deceased, do execute and deliver a deed in fee simple to the petitioner, and that they do pay out of the funds of the said estate the sum of eight hundred and sixty-five dollars and eighty-eight cents, found to be due to the petitioner by the auditor, and interest thereon from the date of the filing of said report.”
    The executors appealed to the Supreme Court, and assigned for error that the court erred

      “ 1. In assuming jurisdiction to settle the accounts of the parties.
    “ 2. In disregarding the plea of the Statute of Limitations.
    “ 3. In charging Duck’s estate with lumber cut by Ross.
    “ 4. In decreeing any balance to be paid by Duck’s estate to Patterson.
    “ 5. In confirming the auditor’s report.”

      A. S. Landis (with whom was T. 'Banks), for appellants. — •
    Patterson’s remedy was in account render: Irvine v. Hanlin, 10 S. & R. 220. The Orphans’ Court has not equity powers in cases of account between tenants in common, and the exercise of such powers is a void act: Jones v. Jones, 2 Jones 355; McLean v. Wade, 3 P. F. Smith 146; Brinker v. Brinker, 7 Barr 55; Shollenberger’s Appeal, 9 Harris 341. Consent will not give jurisdiction : Mills v. Commonwealth, 1 Harris 627; Willard’s Appeal, 15 P. F. Smith 265. The 15th section of Act of' February 24th 1834, Pamph. L. 75, 1 Bright. Purd. 276, pl. 15, has reference only to cases where there is not an adequate remedy at law: Brady’s Appeal, 16 P. F. Smith 277. The memorandum on the contract, not being under seal, the whole contract was parol: Vicary v. Moore, 2 Watts 451; Lawall v. Rader, 12 Harris 285; Lehigh Coal and Navigation Company v. Harlan, 3 Casey 441.

      S. S. Blair, for appellee.
   The opinion of the court was delivered, July 2d 1873, by

Sharswood, J. —

The Orphans’ Court is not possessed of general equity jurisdiction, nor do those rules apply to it, which both in England and in this country have so amplified that jurisdiction by enabling it, when once rightfully possessed of a cause, to make a complete end of the controversy. This is certainly a very valúa-' ble principle in the practical administration of justice. But there are many good reasons why it should not be applicable to Orphans’ Courts." It would bring within their reach all matters of controversy or dispute, not only in the settlement of estates of decedents, but with other parties. The jurisdiction of that court is, however, special, and derived entirely from statute, though it has undoubtedly all the powers necessary to make its jurisdiction effective, and in the exercise of those powers, applies the rules and principles of equity : Willard’s Appeal, 15 P. F. Smith 265. The Act of February 24th 1834, § 15, Pamph. L. 75, confers upon it jurisdiction to compel the specific performance of the contracts of decedents for the sale of real estate. This may be either upon the application of the executors or administrators of the deceased vendor, or on the application of the vendee or any other person interested. It is essential, in order to carry out the design of this act, that the court should have power to inquire and determine whether the whole or how much of the purchase-money has been paid, and to make such a decree as will compel specific performance by the vendee. But when that purpose is reached its jurisdiction is exhausted. We can find nothing in this or any other Act of Assembly which goes beyond this special purpose. If, in the account between the parties, it is found that the purchaser has overpaid the amount of the agreed purchase-money, it cannot proceed to make a decree against the estate of the deceased vendor for the balance found to be due upon such account. In speaking of the Act of Assembly in question, Mr. Justice Bell says : “ Under the statute investing it (the Orphans’ Court) with authority, the only final decree contemplated is of specific performance:” McKee v. McKee, 2 Harris 237. It was in the case of a proceeding under this same law that Mr. Chief Justice Gibson remarked: “Although the Orphans’ Court has been called a court of equity in respect to the few subjects within its jurisdiction, the ancillary powers of such a court have not been given to it:” Brinker v. Brinker, 7 Barr 55. We hold then that so much of the decree below as ordered that the executors of Jacob Duck, deceased, should pay the balance found due to the petitioner, was erroneous.

We think that the endorsement of October 2d 1851, on the contract of sale, formed a part of the agreement, and although upon the principle of Vicary v. Moore, 2 Watts 451, it may have made the whole parol, yet the subsequent receipt by Jacob Duck, under seal of April 18th 1859, ¿lade it again a specialty. It follows that Patterson’s share of the timber sawed was a proper credit on account of the purchase-money, and the Statute of Limitations interposed no bar. As the amount of this credit, according to the finding of the auditor, exceeded the purchase-money due, this renders it unnecessary to consider the question, whether the estate of the decedent was properly charged with the spoliation by the adverse claimant, Ross, of the timber, during his possession under his recovery in ejectment. In any action or proceeding by Patterson against Duck’s estate, the amount of the purchase-money as ascertained by this report to have been paid from the timber will be a credit for which the estate will be entitled to a deduction.

So much of the decree as orders that the executors do execute a deed in fee simple to the petitioner is affirmed, and the residue is reversed. Each party to pay his own costs of this appeal.


text:
    Person’s Appeal.
    1. An intestate advanced, two of his children; he left no children but grandchildren, the children of three children; Held, that the advancements were not chargeable against the grandchildren’s shares in the distribution.
    2. Where there are grandchildren whose parent has been advanced, and children, the grandchildren take subject to the advancement.
    3. Where all the heirs are in equal degree to the intestate they take per capita ; each in his own right.
    May 21st 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Appeal from the Orphans’ Court of Lebanon county: No. 65, to May Term 1873. In the distribution of the personal estate of John Pearson, deceased.
    The decedent died intestate, having had children, all of whom died in his lifetime. One of them, Sarah Meiser, left one child, Thomas Meiser; another, William, left one child, Amanda Cherrington; a third, David, left three children: Milton M. Person, Magdalena M. Person, and Emma A.'Person. The decedent left no other descendants in any degree. Magdalena Person, the widow of the intestate, survived him. The balance of personal estate in the hands of his administrators was $6900. James W. Ebur, Esq., was appointed auditor to report distribution.
    The auditor found that the intestate had advanced to his son, William, $400, and to his son, David, $4500. He reported that these sums should be deducted from what would have been the shares of the children respectively, before the fund was distributed amongst the grandchildren. He accordingly awarded
    To the widow, . . .... $2300
    To Thomas Meiser, son of Sarah, . . ■ 1900
    To Amanda Cherrington, daughter of William, 1500
    To Milton M. Person, ] ' jr ( To Magdalena M. Person, > -L r?¿ 0 \ To Emma M. Person, j DaylfL ( 400 400 400
    $6900
    Exceptions to the report were filed on behalf of the children of David Person.
    The exceptions were overruled and the report confirmed.
    The children of David Person appealed to the Supreme Court and assigned for error, that the court erred :—
    1, 2, 3. In charging the advancements made to David against the shares of his children.
    4. In finding as a fact that there had been any advancement made to David.

      J. Funck, for appellant. —
    The grandchildren take in their direct right, and not through their parents by representation: Act of April 8th 1833, sect. 8, Pamph. L. 313; 1 Brightly Purd. 810, pi. 35; Miller’s Appeal, 4 Wright 389; Krout’s Appeal, 10 P. Smith 383; Scott on Intestate Laws 217, 278. Therefore the advancement to the parent cannot be charged to them : McConkey v. McConkey, 9 Watts 352; Earnest v. Earnest, 5 Rawle 219; Levering v. Rittenhouse, 4 Whart. 136; Wallace v. Keyser, 1 P. F. Smith 498; Hughes’s Appeal, 7 Id. 180. These heirs takejper capita: 3 Blackstone’s Commentaries, p. 517. The English statute of distribution is in substance the same as ours: Davers v. Dewes, 3 Peere Williams 40; 2 Williams on Executors 1349, 1363; 2 Redfield on Wills 905 and note 25. Taking per capita in their own right, grandchildren do not account for the advancements made to their respective parents: Skinner v. Wayne, 2 Jones’s Eq. (N. C.) 42; Bingham on Descents 406. In cases of partial intestacy advancements are not brought into hotchpot: Grew v. Speer, 27 Ala. 532; Thompson v. Carmichal, 3 Sandf. Ch. 126; Richmond v. Vanhook, 3 Ired. Ch. 581; Jerkins v. Mitchell, 4 Jones’s Eq. (N. C.) 209.

      A. B. Boughter, for appellees,
    referred to the Act of 1833 and the cases last cited for appellants.
   The opinion of the court was delivered, July 2d 1873, by

Mercur, J. —

John Person died intestate, leaving a widow and five grandchildren. His three children, Sarah, Amanda and David, all died prior to his death. Sarah and Amanda each left one child, and David left three children. These five grandchildren are the only living lineal descendants of the intestate, and are equally removed from him. The question presented is, whether, in the distribution of the estate of the intestate, the children of David are chargeable with advancements made to their father in his lifetime. If the intestate had left surviving him a child or children, against whom these grandchildren were claiming, it is clear they are so chargeable. In that case they would take by representation such share only as their father would have taken, if he had been living at the death of the intestate. How do they take in this case ? The second section of the Act of 8th of April 1833, Purd. Dig. 807, pi. 9, 11, provides if such intestate shall leave grandchildren, but no child or other descendant, being the issue of a deceased grandchild, the estate shall descend to and be distributed among such grandchildren.”

The facts in this case are precisely those indicated by the statute quoted. The intestate left grandchildren, but left no children, and no descendants which were the issue of a deceased grandchild. Then the estate shall be distributed between his grandchildren. How shall it he distributed ? Shall it be by representation per stirpes, or shall it be per capita ?

Under the Statute of Distributions, 22 & 23 Car. II., which is very similar to our own, it is held that they take per capita, that is, equal shares in their own right: 2 Black. Com. 517; 2 Will, on Executors 1349. So under our Act of 19th April 1794, it was held where the intestate’s children are all dead, all of them having left children, the parties take per capita, or each an equal share in his own right: Earnest et al. v. Earnest et al., 5 Rawle 213. The Act of 8th of April 1833, has received the same construction ; that is, when all the heirs are in equal degree of consanguinity to the intestate, they take per capita: Miller’s Appeal, 4 Wright 387; Krout’s Appeal, 10 P. F. Smith 380. It is true the second section of the Act of 27th April 1855, Purd. Dig. 808, pl. 26, changes the rule of descent and of distribution among col-laterals, but does not change it as to grandchildren of the intestate : Krout’s Appeal, supra. Then David’s children do not take by representation through him. They, as well as the other two grandchildren take in their own right. Unless expressly so declared by statute, it is contrary to reason to hold them liable for advances made to one who is a stranger to their title. Neither the letter nor the spirit of'the statute will-make a grandchild liable for advances made to one under or through whom he does not claim. The several cases of Earnest v. Earnest, supra; Levering v. Rittenhouse, 4 Whart. 130; Christy’s Appeal, 1 Grant 369; McConkey v. McConkey, 9 Watts 352; and Hughes’s Appeal, 7 P. F. Smith 179, have been cited as establishing a contrary doctrine. We do not controvert the correctness of construction given to the statute in each of those cases. In each of them the facts were entirely different from the present case. In each of them the intestate left surviving children and grandchildren. His heirs were standing in different degrees of consanguinity to him. Hence the rule established for the benefit of their surviving children applied. It follows that where there are no surviving children of the intestate to invoke the aid of the statute relating to advancements, the children of a deceased child do not take subject to advancements made to their father: Skinner v. Wayne, 2 Jones’s (N. C.) Eq. 42. The learned judge, therefore, erred in confirming the report of the auditor, and the first three assignments of error are sustained. This renders it unnecessary to consider the fourth assignment.

Decree reversed so far as it relates to the distribution among the several grandchildren of the intestate, and the record is remitted for the Orphans’ Court to proceed in conformity to this opinion, and it is ordered that the appellee pay the costs of this appeal.