text:
    Connelly, Administrator, versus McKean, Administrator.
    1. Tyler died in 1864, at his death there was found in his possession an unendorsed note dated June 5th 1861, to him from Connelly, who had died in 1863. In a suit on the note, under the plea of non assumpsit, drafts by Tyler on Connelly also unendorsed, and proof that Connelly had been able to pay the note and that Tyler was embarrassed would be evidence.
    2. Prom this evidence a jury might infer that the relation of the parties was not that of debtor and creditor.
    3. Such evidence was not relevant under the plea of payment only.
    4. This is so, although it does not appear that drafts had been negotiated or in circulation.
    5. If a drawee retains a bill an unreasonable time the holder could sue him in trover.
    6. A drawee may demand twenty-four hours to deliberate whether he will accept.
    7. Endorsed bills, cheeks or orders for the payment of money on delivery of goods, are primá facie evidence of payment.
    8. A draft of Tyler, payable to his own order, on Connelly, found in Connelly’s possession, was evidence of payment by Connelly.
    9. Tyler’s own endorsement was not necessary to Connelly as a voucher.
    10. If Tyler had made an endorsement to another, his endorsement or some proof .of payment to him would have been necessary.
    January 14th 1870.
    Before Thompson, C. J., Read and Sharswood, JJ. A&new, J., at Nisi Prius.
    Error to the District Court of Philadelphia: Of July Term 1869, No. 27.
    This was an action of assumpsit, brought in March 1867, by Allen McKean, administrator, &e., of Hugh Tyler, deceased, against Harry Connelly, Jr., administrator, &c., of Harry Connelly, deceased. The case was on the following note, found in Tyler’s possession after his death, without endorsement:
    “ [$1500.] Philadelphia, June 5th 1861.
    Thirty days after date, I promise to pay to the order of Mr. Hugh Tyler, fifteen hundred dollars, without defalcation. Value received. Harry Connelly.”
    It went to trial before Hare, P. J., on the pleas of payment with leave, &c., and set-off. Connelly died in February 1863 and Tyler in 1864. The plaintiff gave the note in evidence and closed.

      The defendant then made the following offers of evidence, which were all rejected, and several bills of exception sealed:
    Drafts. 1.
    “[$600.] Washington, June 12th 1861.
    At sight pay to the order of J. S. Hall, six hundred dollars.
    H. Tyler.
    To Harry Connelly, Esq.,
    Philadelphia, Pa.”
    2.
    “ [$200.J , Washington, D. C., July 20th 1861.
    Three days after sight, pay to the order of Suter, Lea & Co., two hundred dollars. H. Tyler.
    To Harry Connelly, Esq.,
    Philadelphia.
    Accepted July 22d 1861.
    H. Connelly.”
    3.
    “ [$100.] Washington, D. C., July 30th 1861.
    At one day’s sight, pay to the order of Suter, Lea & Co., one hundred dollars. H. Tyler.
    To Harry Connelly, Esq.,
    Philadelphia,
    Accepted July 31st 1861.
    Harry Connelly.”
    4.
    “ [$100.] Washington, D. C., August 6th 1861.
    At two days’ sight, without grace, pay to the order of Suter, Lea & Co., one hundred dollars. H. Tyler.
    To Harry Connelly,
    Philadelphia.
    Accepted August 7th 1861.
    Harry Connelly.”
    “Washington, June 7th 1861.
    My Dear Harry:
    I received your letter yesterday, and immediately telegraphed to New York for a discount, and got a negative answer. Unfortunately for me, I had drawn against it for $2000 on New York, on the supposition the deposit would be made, and when I got your letter, was obliged to borrow a friend’s check for the amount, and gave him mine payable the 10th, and if the deposit is not made, I am in a serious difficulty, for I have no other means of meeting it at present, and if it is not there, I am not only ruined but disgraced. My people give no quarter, or in other words, some of them. Yours, truly, H. Tyler.
    Telegraph me in the morning early.”
    A paper in handwriting of Harry Connelly, deceased, viz.:—

      “ Your letter has distressed me beyond measure. I had hoped that you would have been able to negotiate my note sent you, and trust now that Magraw has had it.in his power to relieve me for that length of time. - -, of this city, now in Wash-
    ington, owes me some money that should have been paid six weeks since. The last time I saw him he promised me it should be settled the latter part of last week. Since then I have not seen him. I enclose you a draft on him for $1500, which he may pay, with a note also stating my position, which please hand him yourself, and write me his reply. I shall have $500 I can deposit to your credit to-morrow. Telegraph me early what I must do, and the name of your bank.”
    Check-book of Harry Connelly with the Farmers’ and Mechanics’ Bank, with this entry upon the margin opposite to a check cut from this book, in the handwriting of said Harry Connelly :—
    “ 1861, June 8th. H. Tyler, $500.”
    The defendant then gave in evidence a book of the Farmers’ and Mechanics’ Bank, charging Connelly with a check for $500, drawn by him and paid by the said bank on June 8th 1861.
    The defendant’s offer of the $500 entry in the check-book, the letter of Hugh Tyler to Harry Connelly, and the paper heretofore set forth in handwriting of Harry Connelly, was again made and rejected.
    This check was then given in evidence:—
    “ Philadelphia, September 8d 1862.
    Farmers’ and Mechanics’ Bank:
    Pay to Hugh Tyler, Esq., or order, fifty dollars.
    [$50.] Harry Connelly.
    (Endorsed) H. Tyler.”
    The defendant then renewed his offer of the same check-book of Harry Connelly, deceased, for the purpose of using in evidence an entry in the handwriting of said Harry Connelly, as follows, viz.:—
    “ 1862 September 3d. Lent Hugh Tyler $50.”
    Also the following drafts:—
    “[$1000.] Washington, August 22d 1861.
    On the first day of November pay to the order of myself (H. Tyler), one thousand dollars. Value received; and charge the same to account of H. Tyler.
    To Harry Connelly,
    Philadelphia.
    H. Connelly.”

      January 24th 1870,
    “ [$5000.] New York, June 30th 1859.
    At sight, pay to the order of James Buell, Esq., cashier, five thousand dollars. Value received; and charge the same to account of H. Tyler.
    To Harry Connelly, Esq.,
    Philadelphia.”
    All which were rejected.
    The defendant then offered to prove that Harry Connelly, from the time of the date of the note until the time of his death in February 1863, as well as his estate after his death, was in good pecuniary circumstances, and could at any time have been made to pay an indebtedness of $1500; and that Hugh Tyler, from the time of the date of the note sued on until the time of his death in the year 1864, was in embarrassed circumstances and greatly in need of money. This was rejected.
    The defendant submitted this point, which was refused by the court:—
    “ The note sued on in this case not having been endorsed, no recovery can be had thereon, and the verdict must be for defendant.”
    The verdict was for the plaintiff for $2134.56.
    The defendant took a writ of error; and assigned for error the rejection of his offers of evidence, and the answer to his point.

      G. M. Pallas, for plaintiff in error.
    — Both parties were dead, and six years nearly had elapsed since the note was due — great liberality should be allowed in admitting evidence: Patton v. Craig, 7 S. & R. 116. The possession of the drafts was evidence that the defendant had paid them: Weidner v. Schweigart, 9 S. & R. 385; 1 Greenl. Ev. § 38, et in nota: Gibbon v. Featherstonhaugh, 1 Stark. 179 (225); Bracken v. Miller, 4 W. & S. 112 ; and that they were in payment of an antecedent debt: Welch v. Seaborn, 1 Stark. 385 (474); Alvord v. Baker, 9 Wend. 323. There being no othePdebt than the note, the law would appropriate them to that: Murphy v. Richardson, 9 Casey 235; Rodgers v. Kichline, 4 Id. 231; Tilghman v. Fisher, 9 Watts 441. Proof of the pecuniary circumstances of the parties was admissible: Leven v. Van Buskirk, 4 Barr 309; Ross v. Darley, 4 Munf. 428; Henderson v. Lewis, 9 S. & R. 379; Lesley v. Nones, 7 Id. 410; Diamond v. Tobias, 2 Jones 312.
    C. Gibbons, for defendant in error.
    — The possession of a bill by an acceptor is not presumption of payment by him without proof that it has been in circulation: 2 Greenl. Ev. § 527; Eckert v. Cameron, 7 Wright 120.
   The opinion of the court was delivered,

by Sharswood, J.

— Had the case been tried below on the general issue under the plea of non assumpsit, the several drafts offered, as well as the letter of Tyler, dated June 7th 1861, and the testimony of Mr. Bayard, would have been competent evidence as tending to show the relations between the parties, that their course of 'business was to lend their names to each other to raise money, and that the note declared on was of that character. Indeed the letter of June 7th 1861 is hardly susceptible of any other construction. It is dated at Washington two days after the note sued upon. It is not the letter of a creditor to his debtor, but of an embarrassed man struggling with difficulties, and appealing to his friend to whom it was addressed for assistance. He had received a letter from Connelly on June 6th, which it is highly probable was dated June 5th, and enclosed the note of that date. He did not offer it for discount, for then it would have been endorsed, but he immediately telegraphed to New York to know if it would be discounted, and received a negative answer. It failed to accomplish its object, was laid aside and probably forgotten by both. On what other theory can the possession by Connelly of Tyler’s drafts, accepted but not endorsed, to the amount of $7000, be accounted for? It looks very much as if they were unsuccessful attempts of the same kind. That one of them for $5000 is in favor of a cashier is a very significant fact in confirmation of the same view. To rebut it, it should appear that Tyler had funds in Connelly’s hands on which he had a right to draw to that amount. Let it be borne in mind that both parties are dead; that Connelly the alleged debtor died in February 1868, eighteen months after the maturity of the note, and that Tyler the alleged creditor survived him two years without making any claim on his estate; that Tyler was in embarrassed circumstances, and Connelly and his estate solvent and well able to pay. This note is found among Tyler’s papers after his death, and suit is brought upon it by his administrator against the administrator of Connelly nearly six years after its maturity. All this was evidence, from which, if uncontradicted and unexplained, a jury might fairly and reasonably infer that the relation between the parties at the time of Connelly’s death was not that of debtor and creditor.

The difficulty, however, is that the only plea was payment, which of course admitted the original liability. The draft of June 30th 1859, long anterior to the giving of the note, was irrelevant to this issue. So was the letter of June 7th 1861. The paper in Connelly’s handwriting, not addressed to Tyler, and no notice given to produce the original, was clearly inadmissible, as was the entry on the check-book of Connelly of the check of $500 in favor of Tyler — the entry of the loan of $50, and the testimony of Mr. Bayard, as tending in no way to prove payment. But the other drafts referred to in the 1st, 2d, 3d, 4th and 10th assignments of error stand on a different footing. The first, indeed, which refers to the draft at sight for $600, dated June 12th 1861, cannot be sustained, for the bill was prior to the maturity of the note in suit and without more was no evidence of payment. The others, however, are subsequent in date. The objection is, that they did not appear to have ever been in circulation, and that it is necessary to give some evidence ?of that before a bill produced by an acceptor raises any presumption that it has been paid by him. It was so held by Lord Ellenborough in Pfiel v. Vanbatenburg, 2 Campb. 439, and it seems to be adopted by the elementary writers without question: 2 Greenlf. § 527; Story on Notes, § 452; Byles on Bills 222. The plaintiff’s case was that he had accepted and paid several bills of exchange for the defendant’s accommodation. Lord Ellenborough is reported to have said: “ Show that the bills were once in circulation after being accepted, and I will presume that they got back to the acceptor’s hands by his having paid them. But when he merely produces them, how do I know that they were in the hands of the payee or any endorsee, with his name upon them as acceptor ? ■ It is very possible that when they were left for acceptance he refused to deliver them back, and having detained them ever since, now produces them as evidence of a loan of money.” Undoubtedly they were no evidence of a loan, but having proved that they were originally lent, of which the report does not state that there was any evidence, why should not the possession of them by the acceptor after maturity raise the presumption that he had paid them ? With the highest respect tó so great an authority upon Nisi Prius law, I may be allowed to express a doubt as to the sufficiency of the reason. Contrary to established principle, it presumes a fraud to have been perpetrated, when the natural presumption is that which consists with honesty. Besides which it assumes that the holder acquiesced in a palpable wrong. If the drawee retains the bill an unwarrantable time, the holder could sue him in trover. It is a reason which applies as well to a bill which had been negotiated before acceptance; for the endorsee may leave it in the hands of the drawee for acceptance. When the bill is presented, it is reasonable that the drawee should be allowed some time to deliberate whether he will accept or no. It seems that he may demand twenty-four hours for this purpose, and that the holder will be justified in leaving the bill with him for this period: Byles on Bills 177. So that even an endorsed bill, produced by the acceptor after maturity, would not be evidence of payment if this be a sound reason. But surely endorsed bills, checks or orders for the payment of money or delivery of goods are primá facie evidence, according to the general current of the authorities. So it was expressly held by Lord Kenyon, in Egg v. Barnett, 3 Esp. Rep. 196, that to prove payment of a debt due by the defendant to the plaintiff, a check on a banker in his favor and endorsed by him, was evidence to go to the jury of payment. Lord Kenyon said: “ This is not merely using the name in the body of the draft, which is arbitrary, and would of itself be certainly no evidence, but here the money has been actually received by the plaintiff and his servant, for their names are put on the backs of the checks as receiving the money. This is evidence to go to the jury.” See Gibbon v. Featherstonhaugh, 1 Starkie 225; Brembridge v. Osborne, Id. 374; Shepherd v. Currie, Id. 454; Patton v. Ash, 7 S. & B. 116; Weidner v. Schweigart, 9 Id. 385; Garloch v. Geartner, 7 Wend. 198; Alvord v. Baker, 9 Wend. 323; Hill v. Gayle, 1 Alabama 275. The true and valid objection to all the drafts offered in evidence below, except that contained in the 10th assignment, is that they were not endorsed by the payees. The drawer had stipulated that they should be paid to their order, and he had a right to their endorsement as his voucher against them. A payment by the acceptor without such endorsement in blank, would render it necessary for him to prove actual payment to them. For this reason these drafts were also rightly rejected. But this reason does not apply to the draft dated August 21st 1861, drawn as it is expressed to the order of myself (H. Tyler)” for $1000. We are of the opinion that it was evidence to go to the jury to that amount. If there were no other transactions between the parties it would be strong evidence of payment on account of this debt: if however there were other transactions it would be entitled to more or less weight according to the circumstances in evidence going to show that it was applied to the debt in suit: Byles on Bills 222; Murphy v. Richardson, 9 Casey 235. Tyler’s own endorsement is not necessary to him as a voucher against any body in a bill drawn to his own order. If he had made a special endorsement to another, then the endorsement of that other would have been necessary or some proof of payment to him. It was decided in Smith v. McClure, 5 East 476, that a bill payable to the drawer’s own order is payable to himself, if he did not order it to be paid to any other; and no such order appearing, it must be presumed that none was made. Mr. Chitty tells us that a person in possession of a bill payable to his own order is a holder, though it was once thought that he had only authority to endorse: Chitty on Bills 365; and that he may count upon it as payable to himself: Id. 571; and it was held in Titcomb v. Thomas, 5 Greenl. 282, that a bill payable to the order of the drawer and not endorsed, may be assigned for valuable consideration by delivery only, and an action for the benefit of the assignee will lie against the acceptor in the name of the drawer, as on a bill payable to himself. It follows logically that the acceptor need not require the endorsement of the drawer to be placed on the bill before payment. The possession of the draft by him after maturity shows primfi. facie that he has paid it to the right person — the drawer himself.

Judgment reversed, and venire facias de novo awarded.


source: Caselaw Access Project

author: by Thompson, C. J.

license: Public Domain

text:
    Frick at al. versus Barbour et al.

    1. In a question as to E. being a partner, H. of the firm of H. & E. testified that J. was a partner and that E. asked for the books and said he had as much interest as J. Held, that the books of H. & F. were admissible.
    2. Testimony often consists in what is not proved as well as in what is proved.
    3. When withholding testimony raises a violent presumption that a fact not clearly proved or disproved exists, it is not error in the court to allude to the withholding, as a circumstance strengthening the proof.
    January 17th 1870.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Montgomery county: No. 97, to July Term 1868.
    The action in the court below was assumpsit, by James L. Barbour and others, partners, &c., against Jacob Erick, Ephraim B. Erick and Amos Erick, partners, trading as Jacob Erick. It was commenced October 31st 1867. E. B. Erick filed an affidavit denying the partnership. The defendants pleaded non assumpsit with leave to give the special matters in evidence.
    The ease was tried May 27th 1868, before Chapman, P. J.
    Eor plaintiffs: J. L. Hahn testified, he was a partner with Jacob Erick from August 14th 1861 till September 1862, and always regarded Ephraim and Amos as partners. Ephraim called on witness for the books, and said he had as much interest in the concern as Jacob. The witness proved a book to be that of Erick & Hahn for 1862; in this book were charges to J. Frick & Co., and to “Amos.” The plaintiffs offered the book in evidence; they were objected to by the defendants, admitted and a bill of exceptions sealed.
    J. Q. Adams, clerk of plaintiffs, testified: “ The account in plaintiffs’ledger was opened as ‘Erick.’ Jacob would come in and we would mark it ‘ Jacob;’ Amos the same, and then we would carry it to account of Erick. I regarded them as partners.”
    The book of plaintiffs contained in the same account entries to “E. B. Erick,” to “Jacob Erick,” to “Mr. Erick,” to “Erick.” The plaintiffs gave in evidence a bill-head, “E. B. Erick, Norris-town, Cigar Store.” Also, letter from Jacob Erick to plaintiffs, dated November 25th 1864. “ We have filled lot of segars,” &c. Witness further testified that he had received money from E. B. Erick and Jacob Erick, who, in making payment, would ask the amount on the ledger. Defendants never objected to the charge being made to “ Erick.”
    Defendants gave evidence for the purpose of disproving the partnership. They also gave in evidence the certificate of Jacob Erick’s discharge as bankrupt.
    The court charged:—

      February 7th 1870,
    “ Where are their receipts ? If these were produced they might throw light upon the subject. It is singular that these parties should have dealt so long together and have paid so much money and no receipts have passed between them. They would show, if produced, how the defendants dealt with the plaintiffs, whether as partners or as individuals. Now, where are the receipts ? To be sure, plaintiffs had a right to call upon defendants to produce them, and not having given them that notice, the defendants are entitled to whatever"benefit may be derived from that omission.”
    The verdict was for the plaintiffs for $1410.15.
    The defendants took a writ of error and assigned for error the admission of Frick and Hahn’s book, the charge of court, and that judgment was entered against Jacob Frick, &c., he having been discharged as a bankrupt.

      Gf. W. Gorson, for plaintiffs in error.

      H. K. Weand, for defendants in error, was stopped by the court.
   The opinion of the court was delivered,

by Thompson, C. J.

— We see not wherein the books of Hahn & Frick were not evidence on the question of the partnership between the Fricks. Hahn testified to the books, and to facts and declarations tending to show that Ephraim and Amos were partners with Jacob and him. This testimony, whether very important or of little consequence in the minds of the jury, could not have been withheld from them, fo.r anything we can see. Indeed it may have been very important. There was no error in its admission.

There was nothing wrong in the pertinent inquiry of the judge, “where are the receipts?” The testimony had shown numerous payments by the Fricks to Barbour, Semmes & Co., on account, 'and the receipts would have been pertinent and powerful to show how they were drawn and regarded when these payments were made, and how the parties regarded themselves in taking receipts. It has been more than once said that the testimony in a case often consists in what is not proved as well as in what is proved. Where withholding testimony raises a violent presumption that a fact not clearly proved or disproved exists, it is not error to allude to the fact of withholding, as a circumstance strengthening the proof. That was all that was done here. There was no error in this part of the case.

It is denied that the record of the discharge of Jacob Frick, as a bankrupt, was in evidence at all in the case. The judge’s notes have in them, “ discharge of bankrupt, Jacob Frick, March 4th 1848,” but whether given in evidence does not appear. Certain it is, that it was not pleaded, nor any further notice taken of it on the trial, and no request to charge in regard to it, nor objection made as to the entry of judgment, nor motion in arrest of judgment as to Jacob, appears on the record. As he was not bound to plead his discharge, and did not do it, there was no error in the entry of judgment on the verdict against him as one of the partners. As there are no other assignments of error to be noticed, and no error in those we have noticed,

The judgment is affirmed.


author: by Sharswood, J.

text:
    Kline’s Estate.
    1. Parties to an ante-nuptial contract are not like ordinary contractors dealing at arms’ length, they stand in a confidential relation demanding uberrimam fidem.

    2. Although it may not be necessary to show affirmatively that there was a full disclosure of circumstances, &c., in making such contract, yet if the provision for the wife be unreasonably disproportionate to the means of the husband, it raises the presumption of designed concealment and throws on him the burden of proof.
    January 17th 1870.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    This was an appeal, No. 52, to July Term 1870, from the Orphans’ Court of Montgomery county, in the estate of Gabriel Kline, deceased.
    The administrators, &c., of the decedent filed their administration account, in which they charged themselves with $9568.07, proceeds of personal estate, and $7244, proceeds of real estate.
    After taking sundry credits, the balance on their account was $12,951.91. One of the items of credit was, “Ann Kline, widow of said deceased, to be paid at her decease to the heirs and legal representatives of Gabriel Kline, dec’d, $800.”
    To<the last-mentioned item the widow excepted, and the account was referred to Charles T. Miller, Esq., as auditor, to adjust and report distribution.
    By. the report of the auditor it appeared that the credit of $800 was based on the following instrument, called a marriage agreement:
    “ This indenture, made the 21st day of March 1850, between Gabriel Kline of, &c., of the one part, and Ann Hendricks of, &c., of the second part, and George Detwiler of, &c. of the third part. Whereas, a marriage is intended to be had and solemnized between the said Gabriel Kline and Ann Hendricks, and the said Gabriel Kline being seised and possessed of a certain dwelling-house and tract of land, which he now occupies in the said township and county aforesaid, and the said Ann Hendricks being also possessed of certain effects and property, and having made certain arrangements in regard to the enjoyment and disposition of their respective estates. Now, this indenture witnesseth, that in consideration of the said intended marriage, and for settling the interests and estates herein referred to, to the use hereinafter mentioned, and also in consideration of one dollar to him in hand paid by the said George Eetwiler, the receipt, &c., he the said Gabriel Kline hath covenanted, &c., to, and with the said George Detwiler, acting as trustee for the said Ann Hendricks, that in case the said marriage shall take place, and the said Ann shall survive her said intended husband, she the said Ann Hendricks shall, from and after the decease of the said Gabriel Kline, for and during the time of her natural lifetime, have, &c., the north end of the said dwelling-house which the said Gabriel Kline now occupies only for the use of the said Ann Hendricks, as long as she remains my widow, and not to be by her or her trustee, let or rented to any other person during her natural lifetime, the north end of the said house, the kitchen on the first floor, one room and entry on the second floor, half of the garret, half the cellar and half of the garden, and water out of the well, with the privilege of all egress, ingress and regress necessary to enable her to enjoy the said easements, and also that she shall have and receive out of his estate, the sum of $40 yearly, and, every year during the term of her natural lifetime, in case she survives him, the principal to be secured in some of my real estate by my executors or administrators, and also all her household goods and kitchen furniture, and effects and property which she may be possessed of at the time of her marriage are to remain her own, in case she survives him, and if she does not survive him, then the same are to go to and be equally divided among her own heirs at law, as though she had not contracted the said marriage. And the said George Detwiler, for and in behalf of the said Ann Hendricks, with her consent, testified by her signature hereto^ doth covenant and agree, that in case the said Ann shall survive her said intended husband, she shall renounce and release all right to the administration upon his estate, &e.
    The sum of $800, for which the credit was taken in the administration account, is the amount retained by the administrators from which to raise the annuity of $40.
    The auditor, after some preliminary statements and remarks, proceeds:—
    “ The only property spoken of at the time of entering into the agreement above referred to, was the dwelling-house and tract of land occupied by Gabriel Kline. This tract of land is returned, in the order of sale, as containing 38 acres; and it, together with tract No. 2, containing 7 acres, were sold by the administrators, for $3782, about half the value of the real estate which Gabriel Kline owned at the time he entered into the marriage agreement. * * * There was no mention made at that time of Gabriel Kline owning any property real or personal excepting the house he was occupying. It therefore appears that about three-fourths of the property was concealed from Ann Hendricks on the day of the execution of the marriage contract. Besides, the only compensating consideration received by Ann Hendricks as expressed in the agreement, for her executing it, was, that she thereby reserved for herself the right to retain her own property, in case she survived her husband. This was a mere dejusion. She did not obtain this privilege by virtue of the agreement. It was already her legal right independently of the agreement. It is now contended by the administrators and heirs of Gabriel Kline, that by this agreement, Ann Kline relinquished her claim to $800 out of her husband’s estate allowed her by the exemption law, also to her statutory dower, being the yearly interest on about $2400, the one-third of the proceeds of the real estate of the decedent, and to about $2200 absolutely, being the one-third of the personal estate after paying the debts, &c.” * * *
    “ It is therefore abundantly established from the above authorities, that at the time of executing the agreement in question, Gabriel Kline stood in a confidential relation towards Ann Hendricks, and that this relation imposed upon him the duty of acting with the utmost good faith towards his intended bride, and in the important contract, into which he was about to enter with her, of not concealing any material facts from her, of acting in such a manner towards her in all respects, as not to awaken any just suspicion of his obtaining an advantage over her by artifice. When he calls upon a court of equity to sustain his contract, the burthen of establishing its perfect fairness, adequacy and equity, is thrown upon him, and if he fails to establish affirmatively that he performed his whole duty, equity will treat the transaction as one of constructive fraud and set it aside. * * * Kline does not say one word about his estate; he does not honestly, openly and fairly lay before her the true state of his property, and that he means by this agreement, to keep her only during his life, and at death, to throw her upon the charities of the worn,” &c. * *
    “ True, she had the means of acquiring the necessary information. But where was that information to be found? In the bosom of her intended husband. He possessed it all. Equity and good faith enjoined upon him the duty of furnishing her, without the asking, with all the information necessary to a complete and adequate understanding of the nature of the agreement she was about executing. She was not, in violation of her womanly instincts, compelled to go out into the world to acquire information from strangers to enable her to guard against imposition from him in whom she rightfully imposed unbounded confidence. There was no obligation upon her to inquire into bis pecuniary affairs, but on the contrary she could repose upon him with the most implicit confidence, whi'ch the relation she sustained to him naturally inspired. She put her mark to this paper in utter ignorance of her rights, by the procurement of her intended husband, through an agent whom he employed for that purpose, while he stood by concealing the knowledge he possessed and which was necessary and material for her to have, in order to appreciate the nature and importance of the agreement she was about to enter into with him; and his legal representatives now seek to obtain a gross advantage over her by this agreement. These facts surely present a strong case of constructive if not actual fraud. This ante-nuptial agreement must therefore be set aside, and the widow, Ann Kline, be restored to her full legal rights in the estate of her deceased husband under the intestate laws and to her right to $300 under the exemption laws. This credit of $800 is therefore not allowed and the exception is sustained. ” * * „
    January 10th 1870,
    The auditor found the balance of the personal estate to be $6136.91, of which he awarded one-third, $2045.63, to Ann Kline, the widow.
    He also directed that $2414.66, one-third of the proceeds of the real estate, to be paid to the trustee of Ann Kline, to be invested by him and to pay her the interest for life, &c.
    After exceptions by the administrators and heirs of the decedent, the Orphans’ Court confirmed the report of the auditor. The exceptors appealed to the Supreme Court and assigned the decree of confirmation for error.

      B. M. Boyer and D. H. Mulvany, for appellants.
    — It was not necessary that Kline should have informed his intended wife of the extent of his property: Kline v. Kline, 7 P. F. Smith 120. If the agreement was fairly entered into, mere inadequacy of consideration would not invalidate it: 2 Parsons on Contr. 519. The wife could have sued in equity in her husband’s life, to set aside the agreement: Cannel v. Buckle, 2 P. Wms. 243: 2 Story’s Eq. § 1368, 1519.

      O. Hunsieker and Gr. B. Fox, for appellees, were stopped.
   The opinion of the court was delivered,

by Sharswood, J.

— The controversy between these parties was before this court in Kline v. Kline, 7 P. F. Smith 120. That was a writ of error to the Court of Common Pleas of Montgomery county on a judgment in a feigned issue directed by the Orphans’ Court to try the validity of the marriage contract, dated March 21st 1850, between the decedent and Ann Hendricks, who is now his widow. That judgment was reversed, and a venire facias de novo awarded. The present appeal is from the decree of the Orphans’ Court dismissing exceptions to an auditor’s report upon the administration account of Samuel Kline et al., administrators of the said decedent, in which the administrators claimed to set aside and secure on real estate the sum of $800 in order to provide for the payment of the annual sum of $40 to the widow for her life, as stipulated in that contract. That item presupposes its validity, and hence, though in a somewhat different form, we have the same question as was presented in Kline v. Kline.

We there held that the parties to an ante-nuptial contract were not like buyer and seller dealing at arms’ length, but stood in a confidential relation calling for the exercise of the richest good faith, and while it might not be necessary to show affirmatively that there was a full disclosure of the property and circumstances of each, yet if the provision secured for the wife was unreasonably disproportionate to the means of the intended husband it raised the presumption of designed concealment and threw upon him the burden of disproof. We have now the finding of an auditor in the court below that there was in fact such designed concealment, a finding well supported as it appears to us, by the evidence in the cause.

The whole contest in the court below in regard to the validity of the contract was evidently based upon the assumption that if it was valid it would be an effectual bar to all the rights of the widow under the intestate laws. Upon that question we gave no opinion in Kline v. Kline, as it did not arise; nor does it properly arise here, though it has been urged on behalf of the appellee, that all she released was the right to administration. This may be so. But instead of admitting, she excepted to the item of $800 proposed to be set aside to secure the payment of her annuity under the contract. She did this upon the ground that the entire contract was invalid; and that though she made no claim to administration and in point of fact it had been granted to others. If she might have insisted on the true construction of the ante-nuptial contract, that she was entitled to the annuity of $40, and to her full third in the real and personal estate of the intestate besides, it is very plain that we cannot go back and unravel the proceedings in order to afford her the relief which she now appears to desire. A party cannot in the same breath blow hot and cold, and it would be an anomalous proceeding to reverse on the motion of the appellee upon a ground not taken in the court below and entirely inconsistent therewith.

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


author: by Read, J.

text:
    Brooke’s Appeal.
    1. Stearns gave to DeHaven a mortgage acknowledged February 6th, it was left in the recorder’s office and endorsed by the recorder “February 6th 1866 at 3J o’clock p. m., Recorded.” In the record of the mortgage the acknowledgment was dated as January 6th. Held, that the lien commenced at the time it was endorsed, and was not affected by the clerical error in recording the acknowledgment.
    2. A mortgage commences its lien the moment it is left for record, endorsed by the recorder, and entered on the recorder’s book under the Act of May 28th 1775, although it may not be actually recorded during any length of time.
    January 18th and 19th 1870.
    Before Thompson, C. J., Read, Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Montgomery county, distributing the proceeds of sheriff’s sale of the real estate of Sarah Ann Stearns: No. 169, to January Term 1870.
    The auditor’s report in this case exhibits the following facts: George Guest being owner of a mill, &c., in Norristown, on the 1st of March 1865 conveyed it to Perry M. Hunter and Samuel DeHaven, subject to a mortgage to Hugh J. Steen for $8000. On the 6th of February 1866, DeHaven conveyed his undivided half to Sarah Ann Stearns for $23,500, subject to $1500, the one-half of the $3000 mortgage ; $6000 were paid in cash and a bond and mortgage for $17,500 of the same date given to DeHaven for the balance of the purchase-money. The mortgage was acknowledged February 6th 1866, and it so appeared by the magistrate’s certificate. It was recorded in the recorder’s office of Montgomery county on the same day, as is shown by the records, endorsed “ at 3J o’clock, p. M., recorded.” The mortgage was accurately entered in the index of the mortgage book. In the record, however, of the certificate of acknowledgment it is stated that it was acknowledged in “ January” instead of “ February.” On the 8th of March 1866, Mrs. Stearns executed a mortgage on her interest in the same premises to Mary Ann Brooke for $6000. This mortgage by its certificate appears to have been acknowledged February 8th 1866 — it was recorded March 13th 1866. The DeHaven mortgage was recorded before the Brooke mortgage. DeHaven entered judgment on the bond secured by the mortgage. The property was sold under the Steen mortgage, after the paying of which and of the costs, &c., there remained for distribution the sum of $8413.75 as the proceeds of the interest of Mrs. Stearns.
    There were many facts reported by the auditor as bearing on the distribution; those above stated are all that are necessary to an understanding of the case as considered by the Supreme Court.

      January 31st 1870,
    Mrs. Brooke claimed to be paid the amount of her mortgage, alleging that the record of DeHaven’s mortgage was a nullity, it appearing on the record that it had been acknowledged before its date. The auditor, Charles T. Miller, Esq., reported amongst other things:—

      “ 1.. The' DeHaven mortgage is a lien, and is entitled to the money by priority of lien.

    “ 2. If it is no lien, DeHaven is still entitled to the money by virtue of the lien of his judgment upon his bond. The Brooke mortgage from the same cause being no lien.”

    He accordingly awarded the whole sum to DeHaven.
    After exception by Mrs. Brooke, the court confirmed the report.
    She appealed to the Supreme Court, and assigned the confirmation of the report for error.

      G. R. Fox, for appellant.
    — A mortgage defectively registered is not notice: Goepp v. Gartiser, 11 Casey 133; Bolton v. Johns, 5 Barr 149; Coyne v. Souther, 11 P. E. Smith 455; Solms v. McCulloch, 5 Barr 474; Heister v. Fortner, 2 Binney 40; Peebles v. Reading, 8 S. & R. 496; Green v. Drinker, 7 W. & S. 440; Hetherington v. Clark, 6 Casey 393; Luch’s Appeal, 8 Wright 519; Magaw v. Garrett, 1 Casey 319; Stewart v. Freeman, 10 Harris 123; Improvement Co. v. Mitchell, 11 Casey 269.

      F. B. Growen and J. Boyd (with whom were 0. Sunsieher and O. H. Stinson), for appellees,
    referred to Miner v. Graham, 12 Harris 491; Bennett v. Paine, 7 Watts 334 ; Barrey v. Sutton, 2 Id. 31; Musser v. Hyde, 2 W. & S. 314.
   The opinion of the court was delivered,

by Read, J.

— Samuel DeHaven and Perry M. Hunter, on the 1st March 1865, became the owners of a building and lot of ground, in the lower ward of the borough of Norristown, subject to a mortgage of $3000. They were engaged in the manufacture of woollen goods, and converted the building into a woollen fac tory, by placing the requisite machinery in it, and enlarging the building. On the 6th February 1866, Samuel DeHaven and wife conveyed his undivided half of the said woollen factory building and lot of ground to Sarah Ann Stearns. P. M. Hunter from this date carried on this woollen factory with Mrs. Stearns, as his ostensible partner, under the firm name of P. M. Hunter & Co.

The purchase-money was $23,500, subject to one-half of the $3000 mortgage, and was made up of $6000 in cash, and a purchase-money mortgage and bond for $17,500. On the 6th February 1866, cotemporaneously with the delivery of the deed, Mrs. Stearns executed, acknowledged and delivered to Samuel DeHaven, a mortgage for $17,500 upon the same premises with a bond for the same amount, to secure the payment of the balance of the purchase-money.

The mortgage was duly acknowledged on the said 6th February 1866, before a notary public, and on the same day recorded in the office for recording of deeds, &c., at Norristown, in and for the county of Montgomery, in Mortgage Book No. 57, page 99, at 3J o’clock, p. M.

The appellant, Mary Ann Brooke, holds a mortgage of the same premises, executed by Mrs. Stearns, for $6000. This mortgage is dated March 8th 1866, and acknowledged February 8th 1866, and recorded March 13th 1866.

By a clerical error, the recorder has dated the acknowledgment of the first mortgage “ January” instead of “February.” The original deed is correct in every particular, and has on its back in the recorder’s handwriting, the date of its receipt for record— “ February 6th 1866, at 3| o’clock, p. M. Recorder’s fee paid.” It was properly indexed in the mortgage index, with a reference to the mortgage-book and page in which it is recorded.

There is no such case in our reports. The case of Solms v. McCulloch, 5 Barr 473, was entirely different. It was a scire facias upon a mortgage, which, when offered in evidence, was found to be dated November 12th 1835, and acknowledged on the 9th October and recorded on the 23d November. The error was in the original mortgage. Judge Rogers says: “ This raises two questions. 1st. Was the mortgage defectively registered, or in other words, had the recorder authority to record the mortgage ?” The doubt here clearly arose from the defective acknowledgment on the original mortgage itself. The plaintiffs on the trial, after the rejection of the mortgage, then proved the execution of it. “The first,” says the learned judge, “raises an open and interesting question, which we are not at this time prepared to decide, in consequence of the necessary absence of one of the judges, and a difference of opinion among those who heard the argument.” •Now this' does not touch the first Stearns mortgage at all, for there is no doubt of the authority of the recorder to record it, but it does impinge upon the mortgage to Mrs. Brooke, which is identical in its circumstances with the rejected mortgage in 5 Barr.

In this dearth of positive authority, we must turn to the act relating to mortgages, and see what its provisions are. All mortgages shall have priority, according to the date of recording, and it shall be the duty of the recorder to endorse the time upon the mortgages when left for record and to number the same according to the time they are left for record, and if two or more are left on the same day they shall have priority according to the time they are left at the office for record, and that no mortgage shall be a lien until such mortgage shall have been recorded or left for record as aforesaid.

The mortgage therefore commences its record and its lien the moment it is left for record and is endorsed by the recorder, and entered upon the recorder’s book, as required by the Act of 28th May 1775. It may remain there weeks and months, before it is actually recorded, and yet it is record notice to all the world. A regular mortgage entitled to record is a record the moment it is left for record and so continues for all time to come: Musser v. Hyde, 2 W. & S. 314.

We entertain no doubt that this record was notice to all the world, and the auditor has found that the appellant had also actual notice of the mortgage.

We are satisfied with the findings and conclusions of the auditor, and the decree is affirmed, and appeal dismissed at the costs of the appellant.


text:
    Blyler versus Kline.
    1. By a law of Georgia, a defendant in foreign attachment, upon giving security for the amount which may be recovered, shall have the attached goods restored. Security in such attachment was given, and the goods delivered. Held, that the defendant became personally a party to the suit.
    2. Judgment recovered in the case had the same effect as in an action commenced by summons.
    3. In foreign attachment in Pennsylvania a judgment recovered, where the defendant contests the claim, has the same effect as if the suit had been commenced by summons.
    4. In an action on the judgment, evidence that the debt had been satisfied before it was rendered, and that the attachment had been fraudulently prosecuted, Held, to be inadmissible.
    January 18th 1870.
    Before Read, Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Montgomery county: No. 161, to January Term 1870.
    This was an action of debt, commenced May 13th 1867, by Jotham A. Kline against David Blyler on a judgment in foreign attachment recovered by the plaintiff against the defendant in the Superior Court of Chatham, Georgia. The writ in Georgia was issued February 9th 1860,'directing the sheriff to attach so much of the defendant’s property as will make $750. An affidavit that the defendant resided out of the state was filed in the suit. On the 10th of March the sheriff attached “ all the stock in trade and furniture in the store, &c., occupied by Joseph K. Blyler as agent of David Blyler,” &c. On the same day a bond in the sum of $1600 was executed by “David Blyler, per J. K. Blyler, attorney,” and “ Noble Lyon, security,” reciting the writ of attachment and the levy under it, with condition, “ that if the said David Blyler shall pay to the said Jotham A. Kline the amount of the judgment and costs that he may recover in said cause, then the obligation to be void,” &c. J. K. Blyler was the son of the defendant. The declaration was filed February 4th 1861; a waiver of all objections to “its filing at this term of court” having been signed by “L. S. De Lyon, attorney for defendant.” Pleas signed in the same manner were filed in the case. On the 14th of January 1867 a verdict was rendered in the attachment for the plaintiff for $750, with interest from March 15th 1858, and costs; and on the same day judgment was entered on the verdict.
    On the trial, March 1st 1869, before Chapman, P. J., the plaintiff offered the foregoing record in evidence. It was objected to by the defendant, but received and a bill of exceptions sealed.
    The defendant then offered to prove “ that after the institution of the proceedings in the state of Georgia, and long before the date at which it is alleged that judgment was obtained, at a settlement between the plaintiff and the defendant, the note upon which said proceedings were had was fully paid and satisfied, and the plaintiff then agreed to deliver up to said defendant the said note, and further agreed to have said proceedings stopped and stayed; and afterwards the plaintiff fraudulently and unjustly caused said proceedings in Georgia to be prosecuted to judgment against defendant.”
    An objection by the plaintiff to this offer was overruled by the court, and the defendant gave evidence of the matters contained in it. After the case was closed, the court withdrew the evidence of the defendant from the jury, and directed a verdict for the plaintiff for the amount of his claim. The jury accordingly rendered a verdict for the plaintiff for $840.
    The plaintiff took out a writ of error, and assigned for error—
    1. Admitting the record of the Superior Court of Chatham county.
    2. Directing the jury to find a verdict for the plaintiff.
    6r. W. Rogers, for plaintiff in error.
    — Attachment process by the law of Georgia must be strictly pursued: Mills v. Finley, 14 Geo. R. 230. A record must show jurisdiction of the person on its face: Steen v. Steen, 25 Miss. 513; Dorene v. Shaw, 2 Foster 277; Foster v. Glazener, 27 Ala. 391; Smith v. Smith, 17 Illinois 482; Black v. Black, 4 Bradford 174; Lincoln v. Fowler, 2 McLean 473; Nesterfelt v. Lewis, Id. 511; Warren Manuf. Co. v. Ætna Ins. Co., 2 Paine 502; Steel v. Smith, 7 W. & S. 447; Rogers v. Burns, 3 Casey 525; Act of April 14th 1851, § 9, Pamph. L. 614, Purd. 806, pl. 30; D’Arcy v. Ketchum, 11 How. 165; Phelps v. Halker, 1 Dall. 261. Defendant might show that a foreign judgment was void for want of notice or for fraud: Webster v. Reid, 11 How. 437.

      July 7th 1870,

      J. Boyd, for defendant in error,
    referred to Baxley v. Linah, 4 Harris 248; Benton v. Burgot, 10 S. & R. 240. The fraud, if any, is to be corrected where the judgment was recovered.
   The opinion of the court was delivered,

by Read, J.

— This was an action of debt upon a judgment obtained by the plaintiff against the defendant, in the state of Georgia, and upon the trial the plaintiff offered in evidence the duly authenticated record of the Superior Court of Chatham county, of the state of Georgia, of said judgment. This record was objected to by the defendant, but admitted by the court, and an exception taken and noted.

The ground of objection was, that it was only a judgment in attachment, binding only the property attached, but not affecting the person of the defendant, of which the Georgia court never had jurisdiction.

The proceeding was by what we style a foreign attachment, commenced according, to the laws of Georgia, by the plaintiff and surety giving bond to the defendant, and his attorney making oath to the indebtedness of the defendant; upon which the writ was issued and placed in the hands of the sheriff, who, on the 10th of March 1860, levied the same, and so stated in his return to the attachment, “ on all the stock in trade, and furniture in the store and dwelling-house occupied by Joseph K. Blyler, as agent of David Blyler, on the corner of Congress Street lane and"West Broad street, all of which said articles so levied upon will fully appear by reference to an inventory of the same hereto attached, and I have taken bond and security for the judgment and costs, in the terms of the law.”

Then follows the replevin-bond, dated the same day, of David Blyler and Noble Lyon, security to the plaintiff in $1600, which recites: “Whereas, the said Jotham N. Kline hath taken out an attachment against the said David Blyler, returnable to the May Term of the Superior Court of Chatham county, which has been levied on a stock of groceries in the possession of his agent, Joseph K. Blyler, by Benjamin S. Coles, sheriff of Chatham county. Now, the condition of this obligation is such that if the said David Blyler shall well and truly pay to the said Jotham N. Kline, plaintiff in attachment, the amount of the judgment and costs that he may recover in said cause, then this obligation to be void, otherwise to be and remain in full force and virtue.”

This is executed, signed and sealed by David Blyler, per J. K. Blyler, attorney, and Noble Lyon, security, who justifies, and it is filed in the court on the 20th March 1860.

The plaintiff’s petition is filed 4th of February 1861. L. S.’ De Lyon waives all objection to its filing, and on the 3d of May files the defendant’s plea, he appearing for the defendant.

By the law of Georgia (2 Cobb’s New Digest of the Laws of Georgia, 1851, p. 74), “every attachment hereafter sued out, the property attached may be restored to the person or persons against whom the attachment may have issued, upon the defendant or defendants giving good and sufficient security to the pffieer serving the said attachment, in double the debt or demand for which the said attachment may have been issued and granted, or the said defendant or defendants may file his, her or their defence to the petition or declaration of the attaching creditor or creditors, and enter into the same defence as if the property attached had been replevied.”

From this it is clear that on the giving of the replevin-bond the attached property was restored, and the defendant became a party to the suit personally, and appeared and defended by counsel.

This is, in substance, what is done in Pennsylvania in dissolving a foreign attachment, or in contesting it without dissolution; and in both cases judgment for the plaintiff has the like force and effect as in the case of an action commenced by a summons.

The verdict, therefore, is in favor of the plaintiff, and the judgment of the court is a general judgment, the defendant having come within the terms of the law, and being made a party to the attachment: 2 Cobb’s Dig. 85.

Mr. Justice Breese, in Lawrence v. Jarvis, 32 Illinois 316, says; “Jurisdiction of the person is obtained in various modes: by personal service of process, by the entry of the appearance • of the party himself without process, or by an attorney of the court appearing and defending.”

The court was therefore clearly right in admitting the record of the Georgia judgment, and in the effect they gave to it.

Joseph K. Blyler, the son of the defendant, was examined as a witness for the defence, but no attempt was made to show that he was not the agent and attorney of his father, or that Mr. De Lyon acted without authority.

The court were right in withdrawing evidence from the jury which was entirely inadmissible.

Judgment affirmed.

Sharswood, J., dissented.


text:
    Reiff et al. versus Reiff.
    1. Tenant for life leased the premises and died during the year, Held, that uncut grass belonged to the owner of the reversion and not to the lessees as emblements.
    2. Emblements are corn and other growth which are produced annually : not spontaneously, but by labor and industry.
    3. Such productions arefruatus industriales.

      4. Growing grass, even if produced from seed and ready to be cut for hay is not emblements, because the improvement is not distinguishable from natural product, although it be increased by cultivation.
    January 19th 1870.
    Before Thompson, C. J., Read, Sharswood and Williams, JJ. Agnew J., at Nisi Prius.
    Error to the Court of Common Pleas of Montgomery county: No. 195, to January Term 1870.
    This was an action of trespass commenced August 10th 1868, by Elizabeth P. Reiff, Letitia P. Reiff and Susanna P. Reiff against Charles P. Reiff.
    The whole facts in the case appear in the following charge of Judge Chapman, before whom the case was tried, November 17th 1869.
    “ This is an action of trespass, brought to recover damages for cutting and carrying away a quantity of grass, growing upon a tract of about 152 acres of land, which had been leased to the plaintiffs by Mary Reiff, their mother, and widow of John Reiff, deceased.
    “It appears that John Reiff, by his last will and testament, proved the 3d of April 1855, devised to his wife, during her life, the premises mentioned, and that she leased the same to her daughters, the plaintiffs. The first lease is dated the 3d of November 1866, the second the 1st of April 1867, and the third and last, the 25th of February 1868, each for one year. The last was to expire on the 1st of April 1869. The widow died on the 15th of June, 1868. At the time of her death, there were standing, uncut, on th$ premises, a quantity of mixed timothy and clover grass, a quantity of grass, part meadow and part timothy, and a quantity of timothy exclusively. This was sold by the executors of John Reiff; the defendant became the purchaser and entered on the premises by authority of the executors, and cut and hauled it away. The plaintiffs allege the defendant was a trespasser, and is liable to answer in damages, for entering on the premises without their permission and cutting and carrying away the grass.
    “ The material question in this case is, to whom did the grass belong ? It must be admitted that the lessees of the widow, could acquire no greater right than she had. If this grass, upon her death, would have passed under the will, no contract made by her, could enlarge her rights. Otherwise the lessees might have maintained their right to the occupancy of the premises, until the end of the term. This could not be, for it would be repugnant to the will. The devise was to her for life. Her death terminated her estate. But it is contended certain emblements would have passed to her estate, and to these her lessees are entitled. This is true; yet it by no means follows, that clover, timothy and meadow grass come within the description of emblements to which her estate or her lessees are entitled. It may be-admitted, that Indian corn, wheat, rye, oats, buckwheat and potatoes, and even hemp, Hungarian grass, flax and millet are included .among the emblements that do not pass to the remainder-man, but these are all annual products; when cut the root dies. It is not so with clover, timothy or meadow grass, the latter especially, which is entirely spontaneous. Generally, neither clover nor timothy is a principal crop, being usually sown with wheat or rye, and with a view to bring the land into a condition to produce hay or pasture, according to the approved system of rotation. Neither clover nor timothy mature the first year, clover does not until the second summer, and timothy not until the third. If the tenant for life dies just after the grain harvest, may his representatives or lessees enter on the premises, one, two or three years thereafter, and cut the grass, or pasture the fields? If so, when is the remainder-man to get the exclusive possession of the land ? The enjoyment of his rights, under the will, would be postponed far beyond the period fixed by it; and the tenant for life or his lessee could, by a peculiar system of cultivation, produce the delay. It is urged, as the tenants here sowed the clover and timothy seed, they should not be deprived of the fruits of their labor, but it may be answered,, that during the previous year, they had the benefit of the pasture, after the grain was cut and removed from the fields. For it will be remembered the crop of grass, cut by the defendant, was not sowed the last year they occupied the premises, but during the first or second year of their tenancy.”

      “ The custom of the country which allows to a tenant the way-going crop, is not applicable to this case, — still there is some analogy between the two relations, and some aid may be derived from the law governing the relation of landlord and tenant. It has never been pretended that a tenant from year to year had a right to anything more than the crop of grain sown by him; to enlarge the right to the crop of grass produced a year or two after, from seed sown at the same time, would comport with no custom or law, but would be opposed to well-established rules of good husbandry, and convert what may have been intended as a lease for a year, into an indefinite term, for it is well known that timothy and clover are perennial grasses, and will spring from the root for several successive years. If the tenant is entitled to the first yield of grass, why not to the second, third and fourth, or until the root is exhausted ?

      January 31st 1870,
    “ The industry of the counsel has not been rewarded by much law bearing upon this case, and we are therefore compelled to adopt such rules as are suggested by reason and reflection.
    “ It is the opinion of the court that the growing crops of the particular grass cut and hauled away by the defendant, passed, by the will of the testator, along with the land^ and the executors had the right to sell them and confer upon the purchaser the right to cut and haul them away, or to house them on the premises. If you believe the evidence, the verdict must be for the defendant.”
    The verdict was for defendant.
    The case was removed by the plaintiff to the Supreme Court, where in a number of specifications, the charge of the court was assigned for error.

      D. H. Mulvany and R. 0. McMurtrie, for plaintiffs in error.—
    Emblements are given to compensate the tenant for his labor, &c., and also for the encouragement of husbandry : Woodfall’s Landlord and Tenant 501. The test is whether the crop is grown in the year in which the tenant’s interest is determined. Clover and other grasses which are annually removed are emblements: 1 Williams on Ex’rs. 633; Burn’s Ecc’l. Law 299; 2 Bl. Com. by Sharswood 122, n. 3. Although they may be from old roots : Latham v. Atwood, Croke Car. 515; Frank v. Harrington, 36 Barb. 415. It is essential to the interest of agriculture that where a person is in under a tenancy which may expire on an uncertain event beyond his control, the determination of the tenancy should not prevent him from reaping what he has sown: Bittinger v. Baker, 5 Casey 66. The common law in relation to the rights of a life-tenant have often been departed from here: Neel v. Neel, 7 Harris 323; Irwin v. Covode, 12 Id. 162; Lynn’s Appeal, 7 Casey 44; Williard v. Williard, 6 P. F. Smith 120; Hastings v. Crunckleton, 3 Yeates 261.

      Gf. It. Fox, for defendant in error,
    cited: Graves v. Weld, 2 Nev. & Mann. 725, s. c. 5 B. & Ad. 105; Co. Litt. 55, 56; 1 Rol. Ab. 728, 1, 10.
   The opinion of the court was delivered,

by Read, J.

— The plaintiffs in error were the lessees of a farm of 152 acres, from their mother a widow, who had a life estate in it under the will of her husband their father. They were annual lessees from the 1st April 1866, 1867 and 1868, the widow dying on the 15th June 1868. At the time of her death, there was standing uncut on the premises, a quantity of mixed timothy and clover grass, a quantity of grass part meadow and part timothy, and a quantity of timothy exclusively. The question was, was this grass emblements, belonging to the tenants of the deceased owner of the life-estate. The vegetable chattels called emblements are the corn and other growth of the earth which are produced annually, not spontaneously but by labor and industry and thence are called fructus industriales. The growing crop of grass, even if grown from seed, and though ready to be cut for hay, cannot be taken as emblements: because as it is said the improvement is not distinguishable from what is natural product, although it may be increased by cultivation (1 Williams on Executors 670, 672).

The learned judge in the court below is a practical farmer, throughly acquainted with the established usages of our state, and we have no hesitation in agreeing with him that this crop of hay was not emblements, and belonged to the executors of the testator. Judgment affirmed.


text:
    Parke’s Appeal.
    1. The court has no right to interfere with a company’s location of their road on the score of preference, within the limit of their charter.
    2. The only question is, have the company exceeded a discretion on the subject apparent on the face of the act of incorporation?
    3. A road twenty-four miles long was authorized “ from a point on the Pennsylvania Railroad, at or near Parkesburg.” Held, that a connection one mile and a half east of Parkesburg was not a transgression of the act per se.

      4. The connection with the Pennsylvania Railroad was the great point; the place was subordinate.
    January 19th 1870.
    Before Thompson, C. J., Read, Sharswood and Williams, JJ. Agnbw, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Chester county: In Equity : Of January Term 1870.
    Robert Parke and others filed a bill against The Doe Run and White Clay Creek Railroad Co. The bill set out the incorporation of the defendants “ with power to construct a railroad from a point on the Pennsylvania Central Railroad, at or near Parkesburg, in Chester county; thence by the most available route along the Buck run and that branch of White Clay creek that runs west of Chatham, to the state linethat the plaintiffs were stockholders in the company; that instead of locating the road from a point “ at or near” Parkesburg, the defendants have located and threaten to construct it from a point east of Pomeroy station, on the Pennsylvania Railroad, about one mile and a half east of Parkesburg; that Parkesburg is a prosperous and flourishing village, containing manufactories, &c., and about six hundred inhabitants, and an important passenger and freight station on the Pennsylvania Railroad, and Pomeroy is an inconsiderable station with but two houses; that tbe most available route would be from Parkesburg down tbe valley to a small stream entering into Buck run, and down tbe same on tbe route indicated by tbe act.
    Tbe prayer was that tbe defendants be enjoined from proceeding with tbe location and construction of their railroad from Pomeroy station, or from any other point on tbe Pennsylvania Railroad, except at or near Parkesburg.
    The defendants answered that tbe location at Pomeroy was in their judgment tbe most available, economical and advantageous that could be “ at or near Parkesburg”; that to construct a road to Parkesburg would require one running parallel with the Pennsylvania Railroad for more than a mile over country expensive to construct, and through land whose owners were hostile to tbe road; that tbe engineer of tbe company was of opinion that a location with a terminus at Parkesburg was impracticable within tbe means of tbe company, &c.; that tbe location to Pomeroy would be advantageous to tbe stockholders, and, as tbe directors believed, was dictated by sound judgment and justice to tbe stockholders, and warranted by law.
    Tbe plaintiffs filed a replication, and an examiner was appointed. He reported a considerable amount of evidence, showing different routes, their grades, advantages and difficulties, and estimated cost in detail. Tbe road in Pennsylvania would be about twenty-four miles, and it was designed to extend it under tbe laws of Delaware through that state, about twelve miles further to Delaware City, its final terminus. Tbe evidence concurred in showing that wherever tbe northern terminus of tbe road might be, it must leave the Chester Yalley at tbe point where Buck run passes from tbe valley, being about three-quarters of a mile south from the Pennsylvania Railroad. There was evidence that if tbe northern terminus were required to be at Parkesburg, tbe best mode of reaching that point would be to run tbe line from tbe exit of Buck run out of Chester Yalley towards Pomeroy, and westwardly parallel and near the Pennsylvania Railroad till Parkesburg should be reached, and that there was no point between Parkesburg and Pomeroy at which a connection could be made with that road.
    The court dismissed the bill, Butler, J., delivering the opinion, in which he said:— * * *
    “ The case presents but a single question: Is the point of connection with the Pennsylvania road at Pomeroy * near Parkesburg ?’ If it is, we have no power to interfere. It matters not whether the route selected be the best or the worst, if it be within the limits prescribed by the statute. We can only interfere on the ground that the authority conferred has been exceeded by passing outside.

      11 Then is the point selected within the prescribed limits — is it ‘near Parkesburg?’ To ascertain the meaning of this term, as employed by the legislature, it is necessary to look at the object in view. This was the construction of a railroad to develop the resources of the country lying along the Buck run and White Clay creek, and to form an additional outlet from the Pennsylvania Railroad, towards the seaboard. It was not to enhance the value of private property, but to promote the public interest.
    “ It is further important in seeking the meaning of the legislature, to look at the country to be traversed by the road, and see what is its position in respect to Parkesburg and other points on the Pennsylvania road. In doing so, we find it to be such that the road must pass out of the valley where the waters of the Buck run leave it. This is conceded by the plaintiffs. From this point to the state line the propriety of the route selected is unquestioned. The controversy is therefore confined to the distance between the Pennsylvania road and the south side of the valley— three-fourths of a mile. The country here being already supplied with railroad facilities, the object of this part of the line can only be to form a connection with the Pennsylvania road. In view of these facts it would seem entirely reasonable that the point reached in that road by the most direct practicable route from the south side of the valley, where the defendants’ road must pass out, was within the contemplation of the legislature when it employed the language quoted. What motive can be discovered consistent with the object of the statute for requiring the connection to be made nearer Parkesburg ?
    “ If the road were continued from such point, parallel with the Pennsylvania road, or were carried up the south side of the valley westward, how would this promote the purpose in view? The country thus traversed being, as we have seen, already supplied with a railroad, would derive no advantage from it, while the additional useless expenditure which would thus be required would tend in some degree to defeat the enterprise itself. If the purpose of the legislature had been the improvement of Parkesburg, the language employed would require a different interpretation. But it was not. * * *
    “We would not have it inferred, however, that if the route across the valley had been less direct, and the connection with the Pennsylvania road consequently further west, a case would be presented warranting our interference. As already remarked, we regard the object of the line here to be the connection with the Pennsylvania road. Its selection is entirely for the company. Any route adopted with a proper view to this object would, in our judgment, come within the limits prescribed by the statute; necessarily its connection with the Pennsylvania road could not be very far from Parkesburg. If this object were disregarded, and the road carried materially further west in pursuance of some other purpose, as the trade of another neighborhood, or the improvement of private property, the authority of the company would he exceeded, and the interference of the court called for.”
    February 7th 1870,
    The plaintiffs appealed to the Supreme Court, and assigned the dismissal of the hill for error.

      W. Mac Veagh and W. Darlington, for appellants.

      J. 8. Pwthey and A. K. McQlure, for appellees,
    cited People v. Denslow, 1 Caines 177; People v. Collins, 19 Wend. 56; Griffin v. House, 18 Johns. R. 397
   The opinion of the court was delivered,

by Thompson, C. J.

— The question in this appeal is, whether the “Doe Run and White Clay Creek Railroad Company” has so located the northern terminus of its road as justified interference by the court below to compel it to change it; and this depends on whether the company has transcended the discretion on that subject in its act of incorporation. If it has not, the court below did right in refusing to interfere. If we should differ from its conclusion, we must interfere.

Neither the court below nor this court have any right to interfere with the location made by the company on the score of preference, if any he felt. Our only question is, whether it has or has not exceeded a discretion on the subject apparent on the face of the act of incorporation. The company was incorporated by an Act of Assembly of the 24th March 1868, “with power to construct a railroad from a point on the Pennsylvania Central Railroad at or near Parkesburg, in Chester county; thence by the most available route along Buck run and that branch of White Clay creek that runs west of Chatham to the state line.” The length of the line is about twenty-four miles, and is intended to be connected with a line from thence to Delaware City, which in the aggregate will make a line of some thirty-six miles.

There is no testimony in the ease to controvert the propriety of the location made near Pomeroy station on the Pennsylvania Central, a mile and a half east of Parkesburg, in an engineering point of view, or that it is not proper in view of the route indicated in the A.ct of Assembly, or that it is not for the best interests of the company. The facts found' by the master seem to establish all these in favor of the company. But it is thought the location should have been at Parkesburg. But this is not what the legislature said, nor are we able to discern any controlling policy in requiring it to go there. The object in incorporating the company to construct the road, was to furnish an outlet to the trade of the flourishing valleys through which it was to run, and give them a connection with the Pennsylvania Central, which will furnish an outlet east and west to that section of country. The connection with that line of road was the great point; the place was subordinate, as the discretion given shows. As Buck run crosses that road east of Parkesburg some half a mile or more, and as the line of the road was to follow down its valley, the designation in the charter “ at or near Parkesburg,” was with reference to the route of the road from its intersection with the Pennsylvania road, rather than anything else. This was undoubtedly the reason of the indefinite terminus in the act, and the discretion allowed in fixing it. We think that a mile and a half was not transgressive of the discretion allowed fer se, and no fact has been proved to show any wilful abuse of the discretion exercised. As Parkesburg was not fixed as a point or terminus, it would require something very conclusive of impropriety, or mistake in the location to induce a court to control the company and compel it to extend its track a mile and a half, side by side, with the Pennsylvania road to Parkesburg, encountering heavy expenses in the construction as well as in procuring the right of way.

We need not dwell on these considerations. The company had a discretion to locate the terminus of its road elsewhere than at Parkesburg, and while they did so geographically near that place, and there is nothing to show anything wrong in fact or law, we have no right to interfere. With their discretion exercised within the limits of their act of incorporation, no court has any control or right to interfere.

We think the appellants have no case, and that this appeal must be dismissed.

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


text:
    Kennedy versus Barnett.
    1. If a justice maliciously or wantonly injure a party by excess in the execution of his power as a magistrate, the remedy is ease.
    2. W hen the act is an immediate wrong against all forms of law, trespass is the remedy: when the process is legal, but is used in an oppressive manner, the remedy is case.
    3. A defendant against whom a justice had issued a warrant, entered bail before another justice and produced the certificate before the first, who notwithstanding, issued a commitment and ordered his removal to prison. Held, that the justice having jurisdiction in the proceedings, the remedy against him was case.
    January 20th 1870.
    Before Thompson, C. J., Read, Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Schuylkill county: No. 82, to January Term 1870.
    This was an action of trespass by Patrick Kennedy against Patrick D. Barnett. The writ Avas issued November 23d 1865. The cause was tried October 1st 1869, before Ryon, P. J.
    The evidence was that the plaintiff on the 4th of July 1865, was before Jacob Reed, Esq., prosecuting a complaint against certain persons for assault and battery, &c. Whilst there he was informed by a constable that he held a warrant against him, issued by the defendant. The plaintiff then entered bail, before Justice Reed, for his appearance at court, and received a certificate thereof from Justice Reed. On his return from Justice Reed’s office he was arrested by the constable and taken before the defendant. He showed to defendant the certificate of Justice Reed that he had entered bail. The defendant required him to proceed to a hearing. The plaintiff offered to enter bail without hearing; this was refused by the justice. A hearing was had and plaintiff Avas committed for trial, the defendant refusing to take bail. As he was going to prison the defendant called the constable back, the prisoner was taken into the office, searched and a pistol taken from him. He was committed to prison; the constable was by his side, and the defendant walked behind him with a pistol in his hand. He asked for a drink of water; the defendant refused, and said he would shoot plaintiff if he turned to the right hand or the left.
    The warrant of the defendant for the arrest of the plaintiff recited : “ Wheroas, complaint hath been made unto P. D. Barnett, Esquire, one of our justices of the peace for said county of Schuylkill, on affirmation of Dennis Kerwick of the town of Whitfield’s Patch, that on the 4th day of July 1865, at the premises of the aforesaid plaintiff, Patrick Kennedy, of the same place, did commit an attempt of murder, by discharging a pistol and the ball passing into the side of the said Dennis Kerwick.”
    Justice Reed’s certificate was as follows:—
    “ Commth.

      v. V For ass’t and battery with intent to murder.
    Patrick J. Kennedy. J
    Patrick J. Kennedy, Bd. $200
    Thomas R. Reilly, Bd. $200
    as surety for the appearance at the next Court of Quarter Sessions. J. Reed, J. P.
    I do certify that the above defendant was bound in recognisance before me, this 8th day of July 1865. Jacob Reed, J. P.
    To Patrick D. Barnett, Esq.”
    Judge Ryon charged that trespass was not the proper form of action, and instructed the jury that the plaintiff could not recover. The verdict was for the defendant.
    Plaintiff having removed the case to the Supreme Court, assigned the instruction of the court for error.

      October 20th 1870,

      A. W. ScJilaoh and L. Bartholomew, for plaintiff in error.
    — A judicial officer exceeding his authority is a trespasser: 2 Hilliard on Torts 178, et seq. Acts done maliciously are not protected by the judicial character of the officer: 2 Stark. Ev. 807; Morgan v. Hughes, 2 Term R. 229. Every step to render jurisdiction effectual must be taken : Camp v. Wood, 10 Watts 118. If the defendant be the immediate cause of the act, trespass will lie: Legaux v. Feasor, 1 Yeates 586; Cotteral v. Cummins, 6 S. & R. 343. The warrant being void, the seizure was an act of direct violence and case could not be maintained: Maher v. Ashmead, 6 Casey 344; Baird v. Householder, 8 Id. 169; Smith v. Rutherford, 2 S. & R. 358; Kuhn v. North, 10 Id. 399 ; Dolph v. Ferris, 7 W. & S. 367; Spiegelmoyer v. Walter, 3 Id. 540; Paff v. Slack, 7 Barr 254; Campbell v. Brown, 7 Harris 359; Spencer v. Campbell, 9 W. & S. 32; Robinson v. Stokely, 3 Watts 270; Hornketh v. Barr, 8 S. & R. 36; Wilson v. Ellis, 4 Casey 238. There was no plea of justification : “ not guilty” denies only the act: Pearcy v. Walter, 6 C. & P. 232. The certificate of Justice Reed was notice to the defendant in connection with the parol evidence which was admissible, and all should have been submitted to the jury: Miller v. Fichthorn, 7 Casey 256; McKean v. Wagenblast, 2 Grant 462; Repsher v. Wattson, 5 Harris 365; Dougherty v. Stephenson, 8 Id. 210; Thomas v. Thomas, 9 Id. 315; Williams v. Bentley, 5 Casey 272; Huston v. Barstow, 7 Harris 169; McIldowny v. Williams, 4 Casey 492; Baker v. Lewis, 9 Id. 301.

      J. W. Ryan and F. W. Hughes, for defendant in error.
    — The remedy for malicious abuse of legal process is case: Sommer v. Wilt, 4 S. & R. 19; Barnett v. Reed, 1 P. F. Smith 190; Kramer v. Lott, 14 Wright 495; Baird v. Householder, 8 Casey 168.
   The opinion of the court was delivered,

by Thompson, C. J.

— It is not to be doubted that the defendant, a justice of the peace, had jurisdiction of the cause of complaint against the plaintiff, viz., assault and battery, with intent to kill, and that the warrant he issued on that complaint was legal and regular, and that he had full power to hold to bail, or commit the prisoner, for want of bail, on return of the writ. He was, therefore, not answerable in trespass, even if he was in error in holding the defendant, and committing him, for want of bail. If he maliciously or wantonly injured the plaintiff, by excess in any way, in the execution of his power as a magistrate, case was the remedy, not trespass. In Sommer v. Wilt, 4 S. & R. 19, the doctrine of liability is thus stated: “ When the act is an immediate wrong against all form of law, trespass vi et armis is the proper action; but when the process is legal, but is used in an oppressive manner, trespass on the case.” So in Barnett v. Reed, 1 P. F. Smith 190, in the opinion of the court by Strong, J., it is said: “If the judgment against Reed, the plaintiff below, and the execution thereon, sued out against him by the defendant, were not void, case, rather than trespass, was manifestly the remedy.” In Kramer et al. v. Lott et al., 14 Wright 495, this distinction is maintained. The learned judge did not err, therefore, in holding that the action of trespass vi et armis did not, under the facts of the case, lie against the magistrate in this case. Nor did the evidence establish any act of trespass as magistrate, in which character he was sued, outside of the acts referred to above, and the charge of the court, that, “ upon the whole case, the plaintiff was not entitled to recover,” was entirely proper.

Judgment affirmed.