text:
    Garman versus Cooper & Co.
    1. That a sale of chattels may be good against the creditors, they must either pass to the vendee, or the vendor must pass away from them, leaving them in the exclusive possession of the vendee.
    2. The transfer must be actual, continuing and exclusive in the vendee.
    3. If the delivery of possession be but temporary and followed by a return to the vendor, the sale is colorable and fraudulent.
    4. The facts in this case not sufficient to submit to the jury the question of delivery of possession.
    May 15th 1872.
    Before Thompson, O. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Franklin county: No. 72, to May Term 1872.
    This was a feigned issue under the Sheriffs’ Interpleader Act, framed July 17th 1871, between G. C. Cooper & Co., plaintiffs, and John Garman, defendant.
    John Garman, the defendant, had recovered a judgment against Moses Anderson for $1863.60 ; he issued execution on his judgment and under it the sheriff levied on a portable steam saw-mill, &c., as the property of Anderson; Cooper & Co. claimed the property as purchasers from Anderson, and having given notice to the sheriff of their claim, on his application this issue was framed.
    About the 1st of October 1869, Anderson bought a portable “ saw-mill complete” from Cooper & Co., who resided in Mount Yer-non, Ohio, for $2515, and paid $400 on the contract; for the remainder he and his brother Timothy Anderson gave three notes, dated October 15th 1869, and payable in four, eight and twelve months. The mill was put up on land bought by him from William McClelland; he ran it about a year. Being urged by Cooper & Co. for the payment of his notes, on the 24th of October 1870, he resold the mill, &c., to them, through their agent D. L. Travis, by contract in writing, reciting his indebtedness to them on the three notes to be $1971.44,.including interest, “for an engine, boiler and saw-mill;” and agreed “to deliver the same to them at my expense, on lands of Frank Reese, near the Cove road, within about a mile from where I have been running it, said D. L. Travis, agent of said Messrs. C. G. Cooper, agreeing to give me the priviledge of repurchasing the said engine, boiler and saw-mill, complete, until the 1st day of April next, for the same amount for which I have sold to him for Messrs. C. G. Cooper & Co.” Besides the writing it was agreed that Cooper & Co., should have time till Travis should go home and report to them; he then reported to Anderson, December 16th 1870, and the plaintiffs sent him the notes by mail marked paid. Anderson began the delivery of the mill on Reese’s land the next day after the sale. Travis was then on Reese’s land and superintended the delivery, it took two days or more; it was delivered to Travis for the plaintiffs, it was put up on Reese’s land under the superintendence of Travis; Anderson settled with, the men who assisted in putting the mill, &c., up. Anderson owed Travis $30; he paid to the men $23 and to Travis $7, the balance of bis debt. At the time of the removal of the mill to Reese’s land, Anderson had a right there; the timber was almost exhausted on the McLelland tract.
    Anderson on the trial testified, that after the mill was up on Reese’s land, Travis went to Somerset county, authorizing witness to work the mill till his return; Travis returned about December 16th, and witness rented the mill from him till 1st of April then next for $100, which he paid in advance. The unpaid notes were the whole consideration paid to witness for the mill. He sold to Cooper & Co. to pay the debt and keep the property from being sacrificed; the mill was moved because timber was more plenty on the Reese land; Cooper & Co. had no right on the Reese land; Travis was there about a day after the mill was put up, and then went away. Witness ran it as before, employed hands and paid them; Travis did nothing afterward in superintending; witness sold and cut tijnber.
    Travis testified, that he had been sent by Cooper & Co. to collect their debt from Anderson, that he insisted on payment, that Anderson said he could not pay money, and as the best thing witness could do, he'took the mill, &e., back in payment of the notes ; that Reese allowed him to put the mill on the ground, and after consultation with Cooper & Co., they ratified the arrangement which he had made.
    Both Anderson and Travis testified that the sale had been made in good faith to pay Cooper & Co., and not for the purpose of defrauding Anderson’s creditors. Anderson was very much in debt at the time, but believed that he was solvent.
    The defendants gave evidence by a number of witnesses, that Anderson had used the mill as before the sale, had cut and sawed timber and sold it; paid laborers; that he was insolvent and afterward made an assignment for the benefit of his creditors.
    The plaintiffs’ points which were affirmed were:—
    1. “ If the jury believe, from the evidence, that Moses Anderson sold, and the agent of the plaintiffs purchased the engine, boiler and saw-mill complete, for the consideration of the notes of $1971.44 held against Anderson by plaintiffs, which were receipted and given to him, and that the said property was delivered into the possession of Travis, the agent, on the land of Reese, with a bond fide intention of changing the possession as well as the title to the property, then the sale and purchase were valid, not only as between the parties, but as between them and creditors, notwithstanding the saw-mill was leased by the agent to Anderson from about the middle of December 1870 to 1st of April 1871.
    2. “ The change of the possession of personal property must be governed by the nature and kind of property sold, and whenever such change is made as the property is reasonably capable of, the requirements of the law are filled, as this was a cumbrous piece of machinery, weighing 18,000 pounds, which was required to be fastened to the earth as a part of the freehold. If therefore Travis, the agent, took the possession of the saw-mill and fixtures, and had it re-erected on the land of Reese, at the expense of the company, and for the company, the title was complete in the company, and the fact that he leased the saw-mill from December to April, did not divest the company’s title.
    3. “ The real questions in the case are, did the agent of the company make an honest purchase of this machinery from Anderson for a valuable consideration; did he receive actual and exclusive possession of it for his employers; if so, then the contract is valid, and the mere fact that the agent employed Anderson and his hands to aid in the work of re-erection, and that he leased to Anderson for a few months, does not make the sale void, and the plaintiff must have the verdict.”
    The defendant’s third point was :—
    “ If the jury believe from the evidence that Mr. Travis, as agent of Cooper & Co., only superintended the removal of the steam saw-mill from the place where it was on the day of the alleged sale, and its erection on the land of Mr. Reese, and then went away, leaving Anderson in exclusive possession and control of the mill and the business conducted thereat; and that Anderson afterwards employed and paid the hands, retained possession of the mill and conducted its business, as the ostensible owner thereof, and treated it in all respects as he had done before the alleged sale; then there was not such a change of possession accompanying and following the alleged sale as the law requires, and the verdict must be for the defendant.”
    To this the court (Rowe, J.) answered : “ This point is not affirmed; it is based on too narrow a view of the facts.”
    The court, after recapitulating the facts, and stating the law as to fraud, said:—
    * * * “ The jury are then to consider:
    “ 1. Whether the resale by Anderson to the Coopers of the mill and machinery bought from them, was honest and fair, what it purported to be, and not a mere cover or sham intended to hide the property from the other creditors, and prevent them from recovering their just debts. If it was not fair and honest, but a mere cover, it was void for actual fraud, and the verdict ought to be for the defendant, the execution-creditor.
    “ But the jury must understand that a man may take the property of his debtor for a just debt, though he knew that there are other creditors. To make fraud the intention must be to prevent others from recovering their just debts. Where the object is simply to save one’s own debt, the transfer is not fraudulent, though the effect is to withdraw the property from other creditors.

      “ [The evidence in this case to show actual fraud, to show either a design to cheat or to hinder other creditors, is as we view it meagre, but whether it is sufficient is for you.] You may find from all the facts in proof that the sale was a mere cover, not what it purported to be, and that the property was really to be Anderson’s, as to himself and the Coopers, and not his only as to other creditors. * * *

      “ If the jury shall determine that there was no actual fraud in this resale, they will then have to consider the further question, "Was there legal fraud ?

      “ There was no legal fraud if the property was delivered to the plaintiffs here, or to their agent Travis, in pursuance of the resale, and the possession of it retained by them in such manner as to give notice to the world of the change of ownership. Delivery must accompany and follow the sale to render it valid. There must be a bond fide substantial change of possession, which must continue. Travis must have assumed such control of the mill as reasonably to indicate to all concerned the fact of the change of ownership.
    “ [There is evidence of such assumption of control by him, and it is therefore for the jury to say, whether it was bond fide and enough to give notice to the world. Did the vendee do all that he might be expected to do in the case of a real and honest sale?] * * *

      “ It is true that the possession taken by the vendee must be exclusive of the vendor. A concurrent possession will not do. And the possession must continue in the vendee and not go back after a brief interval to the vendor.
    “ [But the assistance given by Anderson and his hands in the conveyance of the mill over to Reese’s land, would not be a color-able concurrent possession.

      “ If the evidence of Anderson and Travis is believed, the plaintiff’s agent would seem to have had the exclusive control and possession of the saw-mill from the time of the sale until it was set up and in running order on the Reese land, and for a day perhaps thereafter.]

      “ Then the agent went away for three or four weeks, leaving Anderson to Avork the mill as before. He declined to rent to Anderson until he could consult Avith his principals, but gave him permission to run the mill in the meantime, and Anderson ran it as before, employing and paying the hands, and cutting and selling timber. Upon his return, the agent rented the mill to Anderson for $100, paid in advance, until 1st of April following. Under this bailment or renting, Anderson was holding the mill and run-rung it when- the execution of the defendant in this issue came upon him, and the mill was seized as his property thereunder.
    “ Now if the mill had remained on the old site, on the McLellan tract, owned by Anderson himself, and the same state of facts had existed as has been shown here, with respect to the mill on the Reese land, the transaction would be colorable and fraudulent. [But upon the sale, the mill was taken up bodily and conyeyed away to the Reese tract, some distance off, though it was a huge affair, and this removal took place under the direction of the plaintiff’s agent, Travis, who consulted Reese, if he is believed, about placing it on ,his land. This was a notorious act, this removal, though it was to a tract on which Anderson had a timber leave.
    “ Would the bailment of the mill to Anderson, after such removal, and supposing the agent Travis to have had exclusive control and possession of the mill, during the time of its removal, that is from the time of sale to the contract of bailment, would such bailment render the whole transaction colorable and fraudulent? We think not, if there was enough in the circumstances attending the delivery of the property to Travis, and in the way he held it afterwards until the bailment, to give notice to the world of the change of ownership; and so we instruct you.] * * *
    “ [On the whole then, gentlemen, if the resale was honest and fair, and the delivery of the mill to the plaintiffs, and the possession held by them of it afterwards, of such a character as to give notice to the world of the change of ownership, notwithstanding the bailment to Anderson, whereby the property went back to his control after a brief interval, your verdict ought to be for plaintiffs ;] otherwise you should find for the defendant.”
    The verdict was for the plaintiffs.
    The defendant removed the record to the Supreme Court; and there assigned for error the answers to the points and the parts of the charge in brackets.

      J. W. MeD. Sharpe (with whom was W. U. Brewer) for plaintiffs in error.
    There was no argument, oral or printed, for defendants in error.
    October 17th 1872,
   The opinion of the court was delivered, by

Thompson, C. J.

— The principal question in the court below ■ was whether the testimony presented a case of competent delivery of the property sold and accompanying possession, or a case of retained possession by the vendor. If the latter, the transaction as a sale was fraudulent as against the creditors of the vendor, notwithstanding no actual fraud was intended by the parties. This is elementary law in the Commonwealth, and cases need not be cited to prove the principle.

Anderson, the defendant in Garman’s execution, bought the portable saw-mill, the property in question, originally from Cooper & Co., and set it up on lands of one McLellan, on which he had a timber leave, and operated it for about a year and then resold it to Cooper & Co., in consideration of the unpaid purchase-money due them. This resale was in writing, and contained a stipulation in favor of Anderson, by which he had the option to repurchase the mill, on or before the first of April ensuing the date of the contract, which was on October 24th 1870, on payment of the amount of unpaid purchase-money for which he had sold it back to Cooper & Co. The contract was made with'one Travis, who represented the Coopers as agent. By the contract, Anderson was to remove the mill from the McLellan place, to a distance of about a mile, and set it up on Beese’s land, on which also he had a timber 'right, at his own expense. This he did, Travis assisting, and set it up and delivered possession, he says, to Travis. Doubtless he did, but Travis remained in possession at most but a day or part of a day, and left the mill in Anderson’s possession and on his ground for the time being. About a month, or a little over, Travis returned and leased the use of the mill to Anderson, until the ensuing 1st of April, for $100. The mill, therefore, remained in Anderson’s possession and occupancy, on his own ground, by right of his wood leave, as it had done before the sale to Cooper & Co., until it was levied on by the sheriff on Garman’s execution on the 18th July 1871, as his property. There was no contrariety of testimony as to these facts, and we think the law was clear as to what should have been the charge of the court upon them.

The mill was portable, and intended to be changed from place to place to suit the convenience of timber. It was personal property beyond a doubt, and so treated in the contract between Cooper & Co. and Anderson, for it was agreed to be delivered by the latter to the former, and it is claimed was so delivered. That it was removed from one place to another, as agreed, is not disputed. The testimony all shows this, but was there such a delivery with accompanying possession to the buyers as the law requires to indicate a change of property ? It is hut a change in the mode of stating the elementary rule already referred to, to say, that on the sale of goods and chattels they must either pass out of the seller to the buyer, or the seller must pass away from them; leaving them in the exclusive possession of the buyer. The transfer must be actual, continuing and exclusive in him. In all cases where the delivery of possession has been but temporary, and followed by a return to the seller, the law regards it as colorable and fraudulent in law. This is well illustrated in Young v. McClure, 2 W. & S. 147. There, there was a bargain concluded for a sale of a yoke of oxen, and the cattle were delivered into the possession of the vendee, who drove them to a blacksmith shop to be shod, and then, on the terms of a loan, returned them to the vendor. They were, while in his possession, levied on as his property and sold. In the contest which arose between the claimant and the execution-creditor, and which eventually came to this court, Sergeant, J., in laying down the law of the case, said: “ There must be not only a delivery'of the thing at the time of transfer, but a continuing possession, and that must be shown by the claimantand further in the same opinion he says, if such a transaction as this is allowed it would be very easy to concoct schemes for defeating creditors, and yet allow the assignor to keep possession. * * * The question in these cases, however, is not whether under all the circumstances the transfer is in good faith, and without design to cover the property, or to delay or hinder creditors; it is an inflexible rule which makes it a fraud per se if the possession does not follow, as well as accompany the transfer.” This is a rule of universal application in this state, as the authorities cited abundantly show.

We are, therefore, of opinion that the learned judge erred in not charging as requested in the defendant’s third point, which was in exact accordance with the views here expressed, instead of leaving it as a question of fact to the jury to say, whether there was a delivery of possession of “ such a character as to give notice to the world of the change of ownership, notwithstanding the bailment to Anderson, whereby the property went back to his control after a brief interval.” This idea pervades the charge, and is found in the answers of the learned judge to the plaintiff’s first, second and third points, as well as in the refusal to affirm the defendant’s third point. This instruction, as the testimony stood in effect, abrogated the rule of law in cases of temporary changes of possession of personal property when sold, and substituting therefor the uncertain conclusions of the jury on the point, of what should be a sufficient delivery to indicate a change of possession of property capable of actual manual change of possession; and this too, to be controlled by their belief in the honesty of the parties. Fraud per se in a transaction would not exist under this administration of the law. We think, therefore, that the assignments of error, viz., the first, second, third, fourth, eighth and ninth errors are sustained, and that the judgment must be reversed and a new trial awarded.

A&new, J. — I doubt whether the facts were not sufficient to carry the question of possession to the jury.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Shirey et al. versus Postlethwaite et al.

    1. In construing a will, in eases of doubt, the grammatical collocation of words should be adhered to, unless there be clear reasons requiring a different construction.
    2. A devise was: “ I will to my wife the house and lot, &c., together with the interest of §2000 annually as long as she remains my widow, the said dower to remain in the land, and the furniture to remain as it now is as long as my wife remains my widow.” He gave “the rest of (his) property” to his children, except a lot which he gave to a son, and by another clause, “ all the rest, &c., of his goods, &e., and other my estate both real and personal” to my son, &c. Held, that the widow took a fee in the devise to her.
    3. The qualification as to widowhood applied to the interest on §2000, which he intended by the word “ dower.”
    4. In order to reduce a devise of real estate under the Wills Act to less than a fee, the intention must appear on the face of the will.
    5. When it is doubtful whether the restriction to less than a fee applies to a devise or some other gift in a will, the declaration of the statute should prevail.
    S. An obscure will construed.
    May 17th 1872.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Franklin county: No. 75, of May Term 1872.
    This was an action of ejectment, brought August 20th 1870, for a lot of ground in the borough of Greencastle, in Franklin county, by Margaret Shirey, widow, and the children of Milton Shirey, deceased, against Joseph M. Martin and Albert G. Postlethwaite.
    Adam Shirey died May 16th 1862, seised of the premises, leaving to survive him, a widow, Elvinia, and three children, J. Wesley Shirey, Milton Shirey and Elizabeth Shirey, intermarried with Albert G. Postlethwaite. Besides the premises, on which he lived at the time of his death, he died seised of a farm in Antrim township, a house and lot in Greencastle, then occupied by his son, Milton Shirey, and a half lot of ground in Greencastle.
    By his will dated May 3d and proved May 22d 1862, he provided as follows :—
    “ I Order that all my Just Debts Funeral Expenses and Charges of Proving this my Will be in the First place Fully paid and satisfied and after payment thereof and Every part thereof I Will and Bequeath to my Beloved Wife Elvinia The house and half of the Lot in which we now live and the Division fence to be made and paid for out of Estate Together with the Interest of Two Thousand Dollars to be paid to her Annually as long as She Remains my Widow the said Dower to Remain in the land and the household Furniture to Remain as it now is as long as my Wife Remains my Widow I Will and Bequeath, all the Rest of my property both Real and personal to my three Children Except the house and Lot in the Possession of my Beloved son Milton'Shirey which I give and Bequeath to him before any Divide of my property is made it is my Wish According to my Wife’s Agreement with me that She will not Claim the three Hundred Dollars that the law Allows to , Widows and in Case of Daughter Elizabeth Rebaugh Should Die without Issue that her share of my Estate Shall be Equally Divided Among her Surviving Brothers or their Children and all the Rest Residue and Remainder of my Goods Chattels Ready Money Effects and Other of my Estate Whatsoever or Whosoever both Real and personal I give and Bequeath the same to my Son Milton Shirey and I Allow my said Son to Sell my Shop and half lot of Ground Together with my Farm in Antrim Township whenever he may think proper to the best Advantage and I Appoint my Son Milton Shirey my Sole Executor of this my Last Will and Testament.”
    Milton Shirey died in August 1864, leaving a widow and three children, the plaintiffs in this suit.
    Elvinia Shirey, the widow of Adam Shirey, on the 27th of July 1870, sold and conveyed the premises in dispute to Albert G. Postlethwaite, one of the defendants.
    These facts appeared on the trial, April 16th 1872, before Rowe, J.
    The defendants submitted the following points, the first of which was negatived and the second affirmed; the court directed the jury to find for the defendants :
    1. Under the will of Adam Shirey, his widow took a fee simple in the property in dispute, and having conveyed this to the defendant Postlethwaite, by deed given in evidence, there can be no recovery by the plaintiffs.
    2. Even if the fee simple did not pass under the will of Adam Shirey, and the Act of 8th April 1833, a life estate did pass thereby, which is as fatal to the plaintiff’s recovery in this action, as though a fee simple had passed.
    The verdict was for the defendants.
    The plaintiffs took out a writ of error and assigned the answer to their 2d point, and the instruction of the court for error.

      J. Mel). Sharpe, for plaintiffs in error.

      F. Jordan (with whom were W. IT. Brewer and L. W. Fall), for defendants in error.
    May 23d 1872,
   The opinion of the court was delivered, by

Sharswood, J.

— There is no more difficult task than to arrive at the meaning of a testator, when he has used technical words, but evidently not in their proper sense. When we depart from the proper sense we are at sea as to the popular sense, and whether it applies in the particular case. The strict technical sense of dower, is certainly the one-third interest which the widow takes in the estate of her husband as against his alienee or devisee, and it .may, and in common parlance it undoubtedly does, comprehend the same extent of interest which she is entitled to in case of intestacy in the real and personal estate of her husband who has died intestate, or which she may elect to take notwithstanding his will. In neither of these senses did Adam Shirey use the word “ dower” in his will. Did he mean the certain interest which he had devised to his wife, or is it to be confined to the annuity which he had bequeathed for her maintenance? If the first, the estate of the 'widow was during widowhood; if the last, then as it appears to us in fee simple.

It is always best, in a case of doubt, when clear reasons do not exist for a different construction, to adhere to the grammatical collocation of the words. Had there been in the will but one expression of the limitation, there would be great reason for holding that it applied to all the preceding gifts. But the sentence is divided, and it is perfectly clear that the first qualification following the gift of the house and half the lot “ as long as she remains my widow,” does not apply to it, but is confined to the interest of the two thousand dollars. The next sentence there is an independent provision. “ The said dower to remain in the land,” — what dower ? The natural interpretation is the next antecedent — the annual interest for his widow’s maintenance, that being the form which the-dower of a widow according to our Pennsylvania system of laws most usually takes. There is considerable difficulty in giving any other construction to this word. For if we hold that it means the house and half the lot, in what land was it to remain ? Literally it would be absurd to say the land shall remain in the land; but if we consider it as intending that the annuity given to his widow, called by him “ the said dower,” should be secured by a charge on his real estate, effect is given according to the common and well settled rule to every word, and the last qualification “as long as my wife remains my widow,” applies to its last antecedent, the gift of the household furniture. He had already expressly provided that the interest of the two thousand dollars should be paid to his wife only so long as she remained his widow, why should it be reiterated as to this annuity, as it must be held to be, if said dower includes all that went before ?

“ I will and bequeath to my beloved wife Elvinia, the house and half of the lot in which we now live.” Here is a direct substantive gift, which ends there; what follows is independent, under a “together with.” The ninth section of the Act of Assembly of April 8th 1833, Pamph. L. 250, declares that “all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or perpetuity, unless it appear by a devise over or by words of limitation or otherwise in the will, that the testator intended to devise a less estate.” It is clear that the rule established by the act requires that the contrary intention of the testator must appear in the will, and it would seem to follow that when he has used, such words as render it doubtful whether the limitation or restriction ajoplies to the gift in question, or to some other gift, we ought to give effect to the declaration of the law. If there was no limitation of the gift during widowhood, we do not think that the residuary devise reduced it to a life estate — by the mere force of the general words “real and personal,” — even if the premises had been the only real estate included in it. But at the time the will was made it would seem it was not; for the farm in Antrim township had not been devised to any one specially, although a power of sale of it was given to his executor — a power which appears to have been after-wards exercised.

We are of opinion then that the learned judge below ought to have answered the defendant’s first point in the affirmative, that under the will of Adam Shirey his widow took a fee simple in the property in dispute, but inasmuch as his affirmance of the second point that she did take a life estate precluded a recovery, the verdict and judgment below was for the defendants, as it ought to have been.

Judgment affirmed.


author: Agnew, J.

text:
    Bedford Bridge.
    1. A bridge view must proceed in the manner provided in the case of roads; and a review is of right.
    2. The better practice in case of bridge views is to permit the report as in road views to lie over for one term, or that the court should by rule provide that the report may be acted on at the first term, subject until the next, to exceptions and review.
    3. The Acts of Assembly in relation to bridges, examined, compared and reviewed.
    May 17th 1872.
    Before Thompson, O. J., Agnew, Sharswood and Williams, JJ.
    Certiorari to the Court of Quarter Sessions of Bedford county: No. 77, to May Term 1872.
    On the 16th of October 1871, on the petition of citizens of Bed-ford township and Bedford borough, in Bedford county, the Court of Quarter Sessions appointed viewers “ for the site of a bridge over the Juniata river, at the north end of Richmond street,” on the road leading from Bedford borough to St. Clairsville, &c.
    On the 12th of February 1872, the viewers reported that a new bridge should be erected at the place indicated, and that its erection would be of greater expense than said township and borough should bear. On the same day, the report was laid before the grand jury, who on the 13th, concurred in the report; on the 16th the court also concurred.
    On the 22d of April, John G. Minnich, and a number of other citizens of Bedford county, petitioned for a review; on the 27th, the court refused to appoint viewers. In his opinion, after referring to the proceedings in the case, Hall, P. J., said :—
    “ A petition is now presented for the appointment of reviewers, and we are asked to order the commissioners to stay all further proceedings until the reviewers have made a report. And it is claimed that under the Act of 1836, in all cases of views of bridges, as of roads, when a report of viewers is presented to the court, it must be allowed to lie over until the next term of the court, in order to allow time for the filing of exceptions, or the presentation of a petition for á review — that the action of the grand jury, the court, and the commissioners was premature, and that the order of review now asked for is a matter of right, the application therefor having been made at the next term of the court after the report upon the original view.
    “ The 25th section of the Act of 13th of June 1836, is relied on to sustain this claim. * * *

      “ In determining this question, the whole Act of 1836 must be looked at. Section 4th, which is but a re-enactment of part of the 1st section of the Act of 6th of April 1802, provides expressly that in the case of a road the proceedings shall remain in fieri until the next term, and this is to give time for a petition for a review: Charleston Road, 2 Grant 467 ; Road to Ewing’s Mill, 8 Casey 282.
    “ If by that time exceptions are not filed, nor any petition for a review presented, the road becomes a public highway by mere operation of law; the whole proceedings are then to be ‘ entered on record, and thenceforth such road shall be taken, deemed and allowed, to be a lawful public road or highway, or private road, as the case may be.’
    “ But the language in regard to bridges is very different. Section 35th of the Act of 1836, is a re-enactment of the 21st section of the Act of 1802, and provides, ‘ if on the report of the viewers, it shall appear to the court, grand jury and commissioners of the county, that the bridge is necessary, and would be too expensive for such township or townships, it shall be entered of record as a county bridge.’ ”
    Minnich removed the record to the Supreme Court by certiorari.
    The errors assigned were:—

      1. That the court ordered the report of the viewers to be laid before the grand jury at the term at which it was made.
    2. That the court concurred in the action of the grand jury, &c., at the term at which the report of the viewers was made.
    3. That the court refused to appoint reviewers.

      J. Cessna (with whom was Gr. Rb. Spang), for certiorari.
    — The laws in relation to roads and bridges are in the main similar: Act of June 13th 1836, §§ 1-4, 34, 35, Pamph. L. 555 et seq., 2 Br. Purd. 1272 et seq., pi. 1-4, 59, 60. The report should have been held over until the next term: Wallenpaupac Bridge, 4 Yeates 435 ; Smithfield Creek Bridge, 6 Wharton 369. The Act of February 11th 1854 (Pamph. L. 62), to consolidate the Road Laws of Beaver, Butler and Lawrence counties, extended by Act of April 5th 1835 (Pamph. L. 189), to Bedford county, is conclusive as to the right of review in case of a bridge.

      Russell f Longeneclcer, contó,
    referred to Long v. Commissioners of Franklin County, 2 Rawle 154; Commonwealth v. Commissioners of Monroe County, 2 W. & S. 495.
    May 30th 1872,
   The opinion of the court was delivered, by

Agnew, J.

— The proceeding to establish a county bridge consists of two distinct acts — the location of the site by a board of viewers, and the determination of the necessity of its being built by the county, by the court, the grand jury, and the county commissioners. The Act of 13th June 1836, § 35, directs in relation to bridges, that the court shall order a view in the manner provided for in the case of roads. Section 25th provides that in all cases of views for any purpose mentioned in this act, the court shall, on petition of any person interested, direct a second view, or review for the same purpose. A bridge view, which must proceed in the manner provided for in the case of roads, therefore falls directly within the words of the Act of 1836. A review is a matter of right. This is the settled law. By the Act of 5th April 1855, Pamph. L. 189, the road law of the 11th February 1854, Pamph. L. 62, relating to the counties of Beaver, Butler and Lawrence was extended to the county of Bedford. The first sect, of the act of 1854, enacts that the number of road and bridge viewers shall be three, and then directs that every view, review, and re-review shall be made by the whole number of persons so appointed,” and extends these provisions to the inspection of bridges. The second section directs that in all cases of the appointment of viewers in the said counties to view the site of a bridge, or to view and locate, vacate, &c., any public.or private road, or to review, re-review the same, the said viewers, reviewers, re-reviewers or one of them shall, &c. ' The third section says: If the viewers aforesaid shall decide in favor of locating a ,site of a bridge or a public road, &c., which they were appointed to review or re-review, &c. The third section also extends the right of review to views for damages, which by the decision in Newville Road, 8 Watts 172, had been denied. The 5th section extends the right of review still further to views of damages in the cases of private roads. Thus the Act of 1854 clearly refers reviews and re-reviews to the views of bridge sites as well as to those for public and private roads. This act was drawn up under my supervision when President Judge of the counties of Beaver, Butler and Lawrence, for the purpose of having a single uniform system in the 17th district. It was founded on the sj)eeial act for Washington and Mercer counties, which had been extended to Beaver in the year 1843, and was entitled an “Act to consolidate and amend the road laws ” of those counties, the original act being found defective in several respects. The reasons for the review of bridge views are obvious, and greatly concern the public. The location of the site of a bridge is generally more important than that of the route of a road, and therefore demands all the precautions of views and reviews before it is finally determined. The site of a bridge, unlike the route of a road, which may be changed or vacated, cannot be removed after the bridge is built. The selection of the site is often difficult to determine. The width, depth, and kind of bottom of the stream, the character of its banks, and the access or approach to it must all be consulted. A mistake in these may result in the fate which attends those who have built upon the sand and not upon a rock. Certainly less wisdom ought not to be required of those who build bridges. High bluffs of rock, or a low sandy flat, may make the approaches to a bridge costly in the extreme, and even perilous. In addition to their other duties, bridge viewers are required to consult the connections of the bridge with the adjacent public roads, and hence the 37th section of the Act of 1836 gives to. them the power to change the bed of a road to be connected with the bridge. Where the site of the bridge is confined by the nature of the stream to a certain spot, this may require the diversion of the connecting roads for a long distance. That alone ought to carry a power of review. Thus the letter of the general law, the provisions of the special act, and the reason and necessity of things demand a review.

It is supposed this clause of the 35th section o.f the Act of 1836, is opposed to a review, viz.: “ and if on the report of viewers, it shall appear to the court, grand jury, and commissioners of the county, that such bridge is necessary and would' be too expensive for such township or townships, it shall be entered on record as a county bridge.” But ivhen shall this necessity appear? “ On the report.” Are we to take this as meaning instantly, and to overrule the express language of the act, that in all cases of views for any purpose maintained in the act, reviews shall be granted, the language of the special act also linking views and reviews together, both as to roads and bridges, and the reason and necessity of the thing ? Certainly not, when the whole proceeding is clearly reconcilable with the provisions of the law, as to views and reviews. It shall be in the manner (says the act) provided for in case of roads. Why then should not a bridge report lie over like a road report to the next term for exception and review ? It has been decided that the report is to be governed by the road law as to the time of its return : Bridge over Smithfield Creek, 6 Wharton 363. Why then is not the final confirmation of the report when the location of the site is disposed of, the true time when “ on the report,” the court, grand jury, and commissioners shall determine the necessity of the bridge as a county bridge. In fact the judicious selection of the site is essential to determine the question of expense, which is part of the duty of the court, jury, and commissioners. This construction is not only in harmony with the letter and spirit of the law, but subserves the best interests of the county ; instead of limiting the important act of location to a single set of viewers who may lack in skill, suffer from prejudice, or be misled by influence, or by interest. Or if it be thought a more convenient practice, the court, grand jury, and commissioners may act upon the report returned, subject to exceptions and review as to the location. Having power to establish rules of practice, the court may make the joint action of the three bodies subject to a nisi rule as in other cases. The order of the court refusing to appoint reviewers, and the final confirmation of the report of views are set aside, and the record is ordered to be remitted, and a procedendo awarded.


author: Pee Cueiam.

text:
    Craig versus The Cumberland Valley State Normal School.
    1. The charter of a Normal School authorized a capital of $30,000, with privilege to increase to $100,000, and borrow money: it provided that “ as soon as a sufficient number of shares have been subscribed, and a sufficient amount of money paid in, the trustees shall erect such building as will meet the requirements of the Act of Assembly,” &c. This did not render the subscriptions to stock conditional, nor prohibit the erection of buildings after $30,000 of stock had been subscribed.
    2. It was not required that all necessary means should be provided before beginning to erect.
    3. In a suit against a subscriber for a second instalment, evidence that he had paid the first on representations of a trustee that enough stock had been furnished to finish the building, was inadmissible to rebut the presumption that he had ratified his subscription by paying the instalment.
    4. The defendant voted at meetings of stockholders, offered to sell his stock, and paid an instalment, knowing the building was being erected. These were a ratification of his subscription. Per Hall, P. J.

      May 17th 1872.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Cumberland county: No. 70, to May Term 1872.
    On the 17th of June 1871, The Cumberland Valley State Normal School brought an action of assumpsit against J. Watson Craig, to recover “ an instalment of 25 per cent., amounting to $250, on the subscription price of 40 shares of the capital stock of the company.”
    The defendant subscribed by signing the following paper:—
    “We whose names are hereunto annexed agree to take the number of shares of stock in the Cumberland Valley State Normal School, set opposite our names respectively; each share of stock to be twenty-five dollars, to be paid in instalments as required by the charter, payable as designated.”
    The charter provided that the capital stock should consist of 1200 shares of $25 each, with privilege to increase to any amount not exceeding 4000 shares.
    The 5th and 7th articles of the charter were as follows:—
    5. The trustees shall have power * * * “ to borrow money to the amount of one-half the value of the real estate belonging to the said corporation, and to execute a mortgage or mortgages on the same in security for the payment thereof, &c.
    “ 7. As soon as a sufficient number of shares of stock shall have been subscribed and a sufficient amount of money paid in, the trustees shall erect, or cause to be erected, in a substantial and workmanlike manner, such building or buildings, as will meet the requirements of the Act of Assembly relative to the establishment of State Normal Schools; to be located in some suitable and convenient place in or near the borough of Shippensburg.”
    The defendant pleaded payment and gave notice of the following special matter:—
    That the plaintiffs were by their charter forbidden to contract for the erection or to erect a building that would cost more than the amount of stock boná fide subscribed; that the defendant subscribed “ in view of this provision of the charter and with the express understanding that the plaintiffs would not erect, or contract for the erection of a building, that would cost in excess of the boná, fide subscriptions to the stock of the plaintiffs. That the plaintiffs in violation of their charter, have undertaken to erect a building that when completely finished will cost over one hundred thousand dollars. That the cost will be at least four-fold in excess of the amount of subscriptions to stock hitherto procured. That in the erection of the building the plaintiffs have already expended the appropriation allowed by the laws of Pennsylvania for Normal Schools. That this appropriation was procured by a special act of legislation for that purpose had, in advance of the time when by the general law on this subject it was properly payable, and this was done without the knowledge or consent of the defendant. That all these proceedings were contrary to the charter of the plaintiffs and the law of the land, and by reason thereof the stock of the defendant has become of no value. That defendant never consented to this action and conduct of the plaintiffs, but on the contrary thereof protested against the same. That the plaintiffs have not funds to complete such building, and never will be able to complete the same, whereby the purposes for which the plaintiffs were chartered and the defendant’s stock subscribed will be rendered abortive.”
    The cause was tried April 12th 1872, before Hall, P. J. The plaintiffs gave in evidence the charter, defendant’s subscription, &c.; that two instalments had been called, the first of which the defendant had paid; and rested.
    The defendant testified that no plan of a building had been adopted when he subscribed; that he had been a member of the board of trustees from May until December 1870.
    It was then proposed to prove by him that as trustee “ he protested against the erection of the present building, and never assented to it. That about 1st of January 1871, he and about fifty other stockholders presented a remonstrance to the board of trustees against the erection of a building that wquM cost more than the amount of capital subscribed. That the board refused to consider the remonstrance favorably, and he then resigned as a member of the board. That the present building will cost about $100,000. To prove, also, that he was induced to pay the first call on his stock by the representations of Mr. McOune that they had promises of large subscriptions to the stock, and that enough would be taken to finish the building, and that he paid before the contract for the building was awarded; and when he discovered that subscriptions were not being made as represented, and that the contract had been made for a building greatly in excess of the ability of the association to pay, he refused to pay the call on his stock, for which this suit has been brought. The purpose for which the evidence about the circumstances under which the first call was paid is offered, is simply to remove the inference that defendant ratified his contract by this payment.”
    The offer was objected to by the plaintiffs.
    The court allowed the remonstrance to be given in evidence, but rejected evidence of representations made by McOune, and sealed a bill of exceptions for defendant. The remonstrance is as follows:
    “ To the Trustees of the Normal School of Shippensburg.
    “ Gentlemen: — It being evident from the very limited subscriptions obtained for the erection of Normal School buildings that the amount is altogether inadequate for the accomplishment of the object, we would respectfully ask you to suspend work until after you will have secured the subscription of a sufficient amount of means, say fifty thousand dollars.”
    The defendant further testified that he would not have subscribed except on the stipulation of the charter that the stock was to be sufficient for the building; he voted and protested against the building on the -ground that it would cost too much; the building would cost $100,000 without furniture; when he paid his first call the contract for building had not been made.
    On cross-examination he said he had been at the meeting of the trustees when the plans for the building were submitted ; he had voted for them on the representation that the cost would be about $60,000; he had voted to increase the stock to $100,000; he had done all he could to get stock taken; he acted as stockholder after • he resigned as trustee, voted at meetings and gave a proxy for his vote; voted to accept a deed for the land.
    There was other evidence that the cost of the building would be about or over $100,000, besides furniture and ornamenting the grounds.
    There was evidence that there was about $38,000 stock subscribed, and that the state appropriation of $15,000, also had been received; also, that about July 1870, the defendant offered to sell his stock.
    The following were points of plaintiffs:—
    4. If the jury believe, from the evidence, that defendant continued to act as a director in the plaintiffs’ company after he had full knowledge of the fact he now alleges in defence to this action, or that, as a shareholder, he exercised his right and privilege, as such, to vote at the meetings of the stockholders of said company, or offered to sell or dispose of his stock to a third party, or paid any instalment upon the same, if he did either or any of these things it was such a ratification of his original undertaking as will prevent his avoiding the contract.
    5. The evidence establishes no such radical deviation from the ' original contract of subscription as will effectually relieve or discharge the defendant from his undertaking.
    6. The defendant is presumed to have subscribed with a full knowledge of the charter or its provisions; and if the acts complained of were warranted by the charter, or any of its provisions, or by any amendment or alteration of the same, made under the terms of the original charter, or by authority of the same, the defendant is not discharged from his liability because of such acts.
    The court answered'these points as follows:—
    ££ 4. If the defendant, after this building was determined on and contracted for, acquiesced in the action of the board and ratified what had been done, he could not afterwards change his position and refuse to pay his stock. If he voted at meetings of the stockholders and offered to sell his stock and paid an instalment, with the full understanding of erecting such a building as is being erected, these acts would amount to a ratification.
    “5. We affirm this point if you are satisfied from the evidence that the board of trustees entered upon the erection of the building bond fide, that the stock subscribed, and to be subscribed, and the appropriations and bequests and mortgages, not exceeding one-half of the value of the real estate which they might reasonably expect to receive and negotiate, would prove sufficient to erect the building.
    6. “Affirmed.”
    The following are points of the defendant with their answers:—
    2. The 7th article of the charter forbade the company from undertaking the erection of a building until enough of bond fide subscriptions had been.made, to finish a building that would come up to the requirements of the Act of Assembly on the subject of Normal School buildings.
    Answer: “We refuse to affirm this point as stated. It was not necessary, by the terms of the charter, that enough stock should have been first subscribed to finish a building that would come up to the requirements of the law. If enough stock was subscribed (not being less than twelve hundred shares, equal to $30,000, which amount was requisite before the company could organize) to enable the trustees to erect such building, they had the right to do so, if bond fide, they had the reasonable expectation of ultimately finishing the same by procuring other stock, or receiving bequests or appropriations, or by borrowing money on mortgage, according to the provisions of the charter.”
    8. If the jury believe, from the evidence, that the present building, without furniture and the other fixtures required by law to appertain to Normal School buildings, will cost $100,000, or about that sum, a.nd that the actual amount of subscriptions reaches only from $32,000 to $38,000, then the contracting for this building was such a violation of the charter as would release Craig from his subscription, unless with a full knowledge of all the facts he assented to it.
    4. The payment by Craig of the first call on his stock, to wit, $250 in November 1870, and the other acts relied upon by the plaintiffs, as evidence that he ratified the undertaking of the present building, will not amount to a ratification, if the jury believe that when he made this payment, and did the other acts, the contract for the building had not been awarded, and he was led to believe that large subscriptions to the capital stock were being taken, and enough would betaken to justify the undertaking of a school building such as was required by law.
    5. Under the fifth article of the constitution, the company had no right to mortgage the real estate of the association to raise a fund for the erection of a school building. That the fifth and seventh articles of the constitution must be construed together, and that when taken together, they forbid this construction.
    The 8d, 4th and 5th points were refused.
    The court, after recapitulating the evidence, also charged: * * *
    “ But the defendant affirms he always was of opinion that it was unwise to undertake to erect a building that would cost $100,000 with stock subscriptions amounting to only between thirty and forty thousand dollars, and a state appropriation of fifteen thousand dollars, and that he and other stockholders protested against going on with the building until more stock was raised. That in December 1870, he was outvoted in the board on this point and resigned.
    “However, the defendant, after this resignation, continued to be and act as a stockholder, even up to the bringing of this suit, and sent his proxy to Dr. Nevin to vote at the last election for trustees, in May 1871, in order, as he says, to secure more judicious men for trustees.
    “He now resists the payment of his stock on the ground that the charter forbade the company from undertaking the erection of a building until enough stock was subscribed to finish it; and that, in fact, the board of trustees has erected a building the contract price of which is $74,000 (to which is added the.cost for the foundation of $7000), and which will yet cost, for heating and painting and glazing, about 18,000 more.
    “ [The counsel, in their final argument, have treated these facts as not being in dispute, and have rested the case on the law, to wit: The position of the defendant is that the plaintiffs cannot recover because the defendant says that the charter prohibited the trustees from beginning to build until boná fide stock was subscribed enough to complete the building, according to the requirements of the Act of Assembly for Normal Schools. We rule this point of law against the defendant. It was not necessary, by the charter, that enough stock should have been first subscribed to finish a building that would answer the requirements of the Act of Assembly. If enough stock was subscribed to enable the trustees to erect such a building, they had a right to proceed to do so, if they acted in good faith, in the reasonable expectation of finishing the building by procuring other stock, or by bequests or appropriations, or by borrowing money on mortgage not exceeding one-half the value of the real estate.] * * *
    “ The defendant thought they might properly contract for a building, provided its probable cost did not exceed the stock subscribed and the expected state appropriation by too large an amount. The difference of opinion between himself and his co-trustees was, that they thought it practicable and proper to enter upon the erection of this building with about $35,000 in stock and $15,000 of state appropriation, in the expectation that in the future they would be able to provide means to pay off the balance of the cost, whilst the defendant and some of the stockholders thought this course unwise.
    “ [We leave the facts of the case for your determination. The defendant’s-counsel say that as the court views the law, there are no facts in dispute, but there ,has been no formal and specific admission of them.”]
    The verdict was for the plaintiffs for $266.80. The defendant removed the case to the Supreme Court, and there assigned for error:—
    1. The rejection of his offers of evidence.
    2, 3, 4. The answers to the plaintiffs’ points.
    5, 6, 7, 8. The answers to the defendant’s points.
    9, 10. The parts of the charge in brackets.

      ■J. McD. Sharpe (with whom were D. W- Thursh and W. S. Stenger), for plaintiff in error.

      J. Stewart (with whom were J. A. O. MeGune and-Kennedy), for defendants in error.
    May 20th 1872.
   Judgment was entered in the Supreme Court

Pee Cueiam.

— We have considered this case, and are not able to agree with the arguments of the learned and able counsel for the plaintiff in error. The words in the charter, “as soon as sufficient number of shares shall have been subscribed and a sufficient amount of money paid in, the trustees shall erect or cause to be erected, in a suitable and workmanlike manner, such building or buildings as will meet the requirements of the Act of Assembly ” relating to Normal Schools, did not render the subscriptions conditional, or imply a prohibition to proceed to erect, after the authorized stock had all been subscribed. Other provisions in the act of incorporation clearly indicate that it was thought it might be requisite to raise more money than the stock authorized would produce, such as an authority to increase the capital stock, and to borrow money. The idea that all necessary means must be provided for such a building as might be determined upon, before commencing to erect it, is not in the charter. The twelve hundred shares of stock being taken, the corporation might organize and go-into full operation. If this should not be sufficient for the building designed, then more stock might be authorized, or a loan made. In the terms of the charter all these contingencies were before the eyes of intended subscribers to the stock, and they cannot repudiate their subscriptions when made — more especially those who, like the plaintiff in error, paid one or more instalments on his stock, and assisted in organizing the company as a trustee.

The views of the learned judge on this, as on all other points in the case, are unexceptionable.

Judgment affirmed.


author: "Williams, J.

text:
    Hoch’s Appeal.
    1. The Act of June 28th 1871, permitting money in sheriffs’ hands to be, by agreement, considered in court, is not retroactive.
    2. Previously to that act, it was agreed that money in a sheriff’s hands should be considered in court, and an auditor’s report making distribution was confirmed. Held, that the whole proceeding was void for want of jurisdiction.
    3. The money not being in court, the agreement of the parities could not give the court power to distribute.
    May 18th 1872.
    Before Thompson, C. J., Asnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Cumberland county: Of May Term 1872, No. 88. In the distribution of the proceeds of the sheriff’s .sale of the real estate of • Benjamin Keller.
    Keller’s real estate was sold under a venditioni to January Term 1869, at the suit of George N. Hoch. The proceeds of sale after payment of costs amounted to $750.
    January 18th 1869, by consent, the money made on this writ was considered in court, and William B. Parker, Esq., appointed auditor to report the facts and to make distribution.
    The auditor reported distribution to various lien-creditors in full of their claims, and awarded $311.06, the remainder of the fund in court, to Hoch on his judgment and execution, his real debt being $1536. The report was confirmed absolutely March 14th 1870.
    “June 3d 1870. The within report being erroneous as per errors appearing on the report itself, the confirmation is vacated, and the report is referred back to the auditor for correction and revision.”
    The auditor by his second report awarded to Hoch $106.94.
    This report was filed January 9th 1871, confirmed nisi January 17th 1871, and confirmed absolutely January 30th 1871.
    Hoch appealed to the Supreme Court June 5th 1871, and assigned for error the order of the Court of Common Pleas of June 3d 1870.

      F. F. Beltzhoover and J. Gorman (with whom was W. M. Pen-rose), for appellant.

      J. Hays, for appellee.

      October 17th 1872,
   The opinion of the court was delivered, by

"Williams, J.

— It is clear that the appeal in this case must be dismissed. If the absolute confirmation of the auditor’s report is to be regarded as a decree of distribution, then the appeal, not having been taken within the twenty days allowed by the act, was too late: Dawson’s Appeal, 3 Harris 480. But if it cannot be so regarded, then the appeal was premature. The whole proceedings were manifestly erroneous and void for want of jurisdiction. The money was not in court when the auditor was appointed to make distribution, and, so far as appears, is still in the hands of the sheriff. The fund not being pdthin its grasp, the court had no power, even with the agreement of the parties interested, to decree its distribution: Williams’s Appeal, 9 Barr 267; Masser v. Dewart, 10 Wright 534; Atkins’s Appeal, 8 P. F. Smith 86. Nor was the defect cured by the Act of 28th June 1871, relating to the distribution of moneys r.aised by sheriff’s sales, P. L. 1376, which was not intended to be retroactive.

Appeal quashed. ■


author: Per Curiam.

text:
    Bosler versus Rheem.
    1. A borrower, by contemporaneous agreement, cannot waive the right to retain or recover back usurious interest.
    2. Under the Act of May 8th 1872, the lender may receive more than 6 per cent, interest, but the right of the lender to recover back the excess being of public policy, cannot be set aside.
    May 18th 1872.
    Before Thompson, O. J., Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1872, No. 87.
    This was an action to May Term 1872, of the court below, by James W. Bosler against Jacob Rheem.
    By a case stated in the case, it appeared that the cause of action was the following note:
    “$500.00. Carlisle, Pa., April 1st 1869. One year after date I promise to pay to the order of J. W. Bosler, the sum of five hundred dollars, with interest at the rate of eight per cent, per annum, without defalcation for value received.
    Jacob Rheem.”
    At the same time he executed the following agreement: —
    Whereas, J. W. Bosler, of Carlisle, Pa., has this day consented to loan me the sum of five hundred dollars, to be secured by negotiable promissory .note, bearing interest, at the rate of eight per cent, per annum, payable annually: and whereas, in pursuance thereof I have received from him the sum of five hundred dollars, and have given him my negotiable promissory note, bearing even date herewith, for the repayment of the same, on the first day of April, A. D. 1870, with interest, at the rate of eight per cent, per annum, payable annually: now therefore, in consideration of said loan, and for the further consideration of one dollar to me in hand paid by the said J. W. Bosler, I do hereby waive and release all my right under any and all existing and future laws whatsoever, to retain, deduct or withhold from the amount of said loan, or to bring or maintain any action at law or equity for the recovery of the excess of interest over and above the legal rate that may be paid at any time prior to the repayment of said loan. In witness whereof, I have hereunto set my hand and seal at Carlisle, Pa., this 1st day of April, A. d. 1869.
    Jacob Rheem. [l. s.]”
    The defendant on the 1st April 1870, paid $40 in full of one year’s interest; and on the 1st of April 1871, “ $40 in full of interest up to this date.” He claimed that the amount paid by him in excess of 6 per cent, in interest, should be credited on the note as principal, making the amount due by him April 1st 1871, to be $508.16, which had been tendered to the plaintiff.
    “ If the court be of the opinion that the said agreement of waiver is valid and binding in law upon the said defendant, then judgment to be entered for the plaintiff for five hundred and forty dollars; but if the court should be of the opinion that the said agreement is not valid and binding, judgment to be entered for the defendant.”
    The court below (Junkin, P. J.) entered judgment for the defendant in the following opinion: — “The question in the ease is, whether a separate covenant by a debtor made at the same time with the giving of the note for borrowed money, will render valid the promise of the borrower embodied in the note itself, to pay the lender eight per cent, interest. We do not see how or why it should. If by law more than six per centum cann'ot'be recovered, when the promise to pay (as is the case), is expressly made in the body of the note itself, how can the matter be aided, by a separate agreement or covenant to do the same thing ? One agieement or promise is just as binding as the other, and neither can be enforced, because the law forbids the thing to be done at all by adverse proceedings. In Heath v. Page, 13 P. F. Smith 108, it is held that ‘ excess of interest over six per cent, is the money of the borrower, which, when received by the lender, he cannot retain, but holds for the use of the borrower, and assumpsit will lie for it.’ If it may be recovered back, surely it may be applied directly when paid to the credit of the borrower in discharge of the unpaid balance due on the note.”

      So entering judgment was assigned for error by the plaintiff on the removal of the record to the Supreme Court.

      M. O. Herman, for plaintiff in error,
    referred to Act of May 28th 1858, Pamph. L. 622, 1 Br. Purd. 803, pl. 1, 2. Usury is not an offence : Craig v. Pleiss, 2 Casey 271. The borrower’s privi- } lege is statutory and may be waived : Wood v. Williams, 9 Johnson 123; Chitty on Contracts, 5th Am. ed. 778; Case v. Dunmore, 11 Harris 93; Bowyer’s Appeal, 9 Id. 210; Winchester v. Costello, 2 Parsons 279; McKinney v. Reader, 6 Watts 34; Bowman v. Smiley, 7 Casey 225.

      Hays Henderson, for defendant in error.
    — When the release in this case was executed, Rheem had nothing to release. A party cannot release all causes of action that may arise or accrue after the execution of the release: Chitty on Contracts 778; Wilson v. Hirst, 4 B. & Ad. 760 ; Woods v. Williams, 9 Johnson 123. As soon as a borrower’s right to recover excess of interest accrues, he stands in the relation of creditor to the lender for money had and received to his use: Heath v. Page, 13 P. F. Smith 108. There was nothing, therefore, for the release to operate upon. The parties were bound to know this: Heath v. Page, 12 Wright 130.

    The rule that one may dispense with that which is provided for his benefit is not applicable to the case of an infant or necessitous man: Fitzsimons v. Baum, 8 Wright 42; Vantine v. Wood, 1 Harris 270; Chamberlain v. McClurg, 8 W. & S. 31. After a man’s embarrassments are removed and he has ceased to be a fit subject for the protecting care of chancery, it is perfectly reasonable to permit men to validate that which was originally invalid from policy merely, and not on account of moral turpitude in the adverse party: Duncan v. McCullough, 4 S. & R. 487.
    May 20th 1872.
   The judgment of the Supreme Court was entered

Per Curiam.

— We agree with the learned judge below, that ’ the agreement of even date with the note in question, the purpose of which was to waive any right to reclaim the excess of interest stipulated to be paid by the maker of the note to the payee, had not that effect. The Act 6f 1858, on this subject, was passéd to regulate the rate of interest among the people, and to change the odious system of forfeitures existing under the old law. Under the new act any lender may receive more than six per cent, interest without any penalty or forfeiture, subject only to have it recouped or reclaimed by the payor. If this be not done the party receiving the interest can hold it lawfully. We cannot, and perhaps never could, hold that this right to reclaim excessive interest may be waived in a note, or by a contemporaneous instrument. It would be better to repeal the provision altogether than this, for it would be resorted to in every case of loan or contract. We cannot allow public policy to be set aside in this manner. The opinion of the learned judge below is a satisfactory presentation of the law on this point.

Judgment affirmed.


text:
    Spade versus Bruner and Carl.
    1. Where a justice has general jurisdiction, his judgment cannot he impeached collaterally, because he had no jurisdiction in the form adopted.
    2. Judgment was recovered before a justice; after his term expired, he gave a transcript on which another justice issued a scire facias; and after appearance by the parties, entered judgment for plaintiffs. On an execution upon the last judgment, a levy was made of defendant’s goods. In trespass against the constable and plaintiff, Held, that the jurisdiction of the last justice could not be impeached.
    3. A joint execution was issued against two defendants, and a levy made on the individual property of one. Held, that he was entitled to the $300 exemption.
    4. Bonsall v. Comly, 8 Wright 442, distinguished.
    May 20th 1872.
    Before Thompson, C. J., Agnew, Shakswood and Williams, JJ.
    Error to the Court of Common Pleas of Juniata county: No. 12, to May Term 1872.
    This was an action of trespass d. b. a. brought to September Term 1870, of the court below, by Jacob Spade against Jeremiah Bruner and William Carl, for seizing and selliiig a wagon of the plaintiff under the following circumstances.
    On the 2d of' March 1863, Philip Spade for the use of William Carl, recovered judgment againt Jacob Umboltz and Jacob Spade before Justice Light for $40. Light’s commission as justice had expired prior to May 31st 1870. On that day he gave a certified transcript of the judgment, on which Justice Reed on the 18th of June 1870, issued a scire facias returnable on the 25th of the same month; on that day the parties appeared and the hearing was continued until the 2d of July. The record showed that subpoenas were issued to each party, and further: “Plaintiff claims $59.97 debt, interest and costs due on a judgment dated March 2d 1863, on the docket of Justice Light. Record produced. And now, July 2d 1870, parties appeared. Defendant admits plaintiff’s claim. Judgment publicly for plaintiff for $59.97, and costs of suit. Same day paid on the above judgment by defendant, $18.26.”
    “ Received same day on the above judgment $18.26 by me.
    William Caul.”
    “July 24th 1870, execution issued. Jeremiah Bruner, constable. Returnable August 10th 1870.”

      On the trial, February 9th 1871, Jacob Spade testified that Bruner and Oarl came to his house and took a wagon ; he told Bruner he claimed under the $300 law; he selected appraisers who appraised the wagon; witness told constable he wanted the wagon under the Exemption Law, a few days after they took the wagon away; the wagon was his own property; Umboltz, the other defendant in the judgment, had no interest in it. There was other evidence of the same character as Spade’s, and evidence by the defendants in answer.
    The constable returned that he had levied under the execution on the wagon and other property, and sold them and paid the proceeds of sale into Justice Reed’s office in full of the judgment, and costs. Carl afterwards acknowledged on the justice’s docket, sat< isfaction in full.
    The following are points of the defendants with their answers:
    3. If the jury believe that the property levied on, seized and sold under a joint execution, was plaintiff’s several property, he was not entitled to the benefit of the $300 exemption law, and. therefore cannot recover.
    Answer: “ This point presents a question which has been mooted, but not decided, so far as I have been able to discover. That partners and joint debtors are not entitled to the benefit of the $300 act is decided in Bonsall et al. v. Comly, 8 Wright 442.* * * The reasoning of the court in the above case is equally applicable to the case of the several property of joint debtors as to the joint property of joint debtors. In both cases two appraisements, not contemplated by the statute, would be required. And it would be impossible to comply with its requirements. For the joint debtors would hold $600 exempt from levy and sale, or each of them but $150, which is less than the sum allowed by the statute. In addition to this the statute speaks of the debtor and the defendant and not of debtors or defendants, leaving the case of joint debtors unaffected by its provisions. We therefore answer the point in the aifirmative.”
    4. The verdict should be for the defendants.
    Answer: “ The verdict in this case should be in favor of Jeremiah Bruner, one of the defendants. But if William Oa.rl was a party to the trespass, aiding, assisting or directing the constable in the trespass complained of, then you may find a verdict against Oarl for the damages sustained by the plaintiff.”
    The jury found a verdict against Carl for $70, and in favor of Bruner.
    A rule was taken to show cause why judgment should not be entered against the defendant Bruner non obstante veredicto, or a new trial be granted, also, a rule to show cause why judgment should not be entered against both defendants non obstante veredicto.

    By agreement under these rules the court was to enter “ judgment as they may determine the law of this ease, the question of fact being conceded.” The court afterwards entered judgment for the defendants; Graham, P. J., being still of opinion that the answer to the defendants third point on the trial was correct; but that the judgment before Justice Reed, under which the execution was issued, could not be impeached in a collateral proceeding.
    The plaintiff took out a writ of error, and assigned for prror:—
    1. Affirming defendants’ 3d point.
    3. Directing judgment for the defendants non obstante veredicto.

      JE. T. Doty $ Son, for plaintiff in error,
    as to the question of Justice Reed’s jurisdiction, cited Hazelett v. Ford, 10 Watts 101; Camp v. Wood, Id. 118; Hallowell v. Williams, 4 Barr 339; Vansyckel’s Appeal, 1 Harris 128; Delaware v. Greenwood, 16 P. F. Smith 63. As to the exemption right he referred to Bonsall v. Comly, 8 Wright 442; O’Nail v. Craig, 6 P. F. Smith 161.

      Parker $ Sahm, for defendants in error,
    as to jurisdiction, cited Clark v. McComman, 7 W. & S. 469; Hazelett v. Ford, 10 Watts 101.
    May 27th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

— The learned judge below came, we think, to the right conclusion upon the question raised by the third assignment of error, as to the effect of the judgment before Justice Reed rendered on the transcript of Justice Light. Reed had no jurisdiction or power to proceed in that way, and if that judgment had come directly in question upon appeal or certiorari it must have been so held, as was decided in Koons v. Headley, 13 Wright 168. The authorities cited by the learned judge in his able opinion demonstrate that where a justice has general jurisdiction his judgment cannot be impeached collaterally by showing that he had no jurisdiction in the particular form adopted. The general jurisdiction was of debts under one hundred dollars. The special case of which he had no jurisdiction was of proceedings upon the transcript of a justice whose term of office had expired. Must the plaintiff, the justice and the constable, be involved in the consequence of a trespass by a mistake upon such a point as this ? We think not. Although the justice had no jurisdiction to proceed upon the transcript, his judgment after hearing the parties, the defendant admitting the plaintiff’s demand, was not absolutely void, and could not be impeached in a collateral proceeding by parol evidence.

But we think the first assignment of error must be sustained. The learned judge erred in affirming the defendant’s third point, that if his separate property was seized and sold under a joint execution against him and another, he was not entitled to the benefit of tbe three hundred dollar exemption law, and therefore could not recover. He relied mainly on the opinion of the court delivered by the present Chief Justice in Bonsall v. Comly, 8 Wright 442. That was the case of a joint execution levied on joint property of several defendants, and was certainly neither within the letter nor the spirit of the Exemption Law. The Chief Justice, however, was careful in his opinion to exclude the conclusion that its principle reached the question now before us. Here the execution was levied on the property of “ a defendant” and a “debtor” — for so far as he was concerned when his several property was seized for a debt for which he was liable therefor jointly with another — it was to all intents and purposes the same as if it had been on a several execution issued on a several judgment. The practical difficulties in the way of a,n exemption claim by joint debtors out of joint property do not arise. Each debtor has a right under the law to an exemption of his own property to the extent of the three hundred dollars; and no reason whatever exists that he should not have the benefit of it for himself and his family. If, under the same execution, the several property of each should be seized, there must undoubtedly be two sets of appraisers — but that forms no objection — because the property of each to be appraised is different. It did present a difficulty in the case of joint property, for there it would be an appraisement of the same things by two different sets of appraisers.

Judgment reversed, and venire facias de novo awarded.