text:
    Kaiser versus Weise.
    1. The frontage rule of valuation, whereby the cost of the grading of streets or other municipal improvements is assessed upon the property abutting upon said street, in proportion to the number of feet the property fronts thereon, is inapplicable to lands in rural districts, like those along Hazelwood Avenue, in the city of Pittsburgh.
    2. Seely v. City of Pittsburgh, 1 Norris 360, followed.
    3. The sis months within which under the provisions of the Act of January 6th 1864, the lien for unpaid assessments must be filed, commence to run from the time the work is completed, and not from the time when approved by councils.
    October 30th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1877, No. 190.

      Scire facias sur mortgage issued by John Weise against John Kaiser.
    In September 1873, Weise conveyed to Kaiser about three acres of land in the Twenty-third ward, Pittsburgh. For a portion of the purchase-money Kaiser gave his mortgage on the premises for §1700, payable in two equal annual instalments, with interest. The first instalment was paid when due, but payment of the last was refused, and this writ of scire facias issued.
    At the trial Kaiser defended on the ground that he had paid a municipal claim for grading Hazelwood avenue, amounting to §906.93 ; that the work on said avenue was commenced November 13th 1872; that the lien of the assessment attached at that date, and that he was entitled to sot off the amount of said lien as against plaintiff’s claim on the mortgage.
    The street was graded under the provisions of the Act of January 6th 1864, Pamph. L. 1135, and the assessment of the cost was by an equal sum per foot front of the property abutting thereon. The grading of the avenue was completed December 2d 1874. The assessment was paid June 3d 1875. The plaintiff below claimed that the lien had expired at the time of payment, and the defendant was, therefore, not entitled to a set off. Hazlewood avenue, on which the property covered by the mortgage has a frontage of over five hundred feet, throughout nearly its whole length, passes through rural property.
    The plaintiff contended that, under these circumstances, the assessment was illegal and invalid; that if Kaiser had objected to its payment, the city could not have recovered, and that he was, therefore, not entitled to a credit for the amount. The court below sustained this view and ordered a verdict for plaintiff, which was the error assigned by defendant, who took this writ.

      Robb & Fitzsimmons, for plaintiff in error.
    — Wo contend that the rules regulating the liability of property for the grading of an avenue differ essentially from that of paving a street or avenue. The grading of a street is a necessity, in order that the owners of property can have ingress and egress to and from the same, but the paving of a street is as a general rule a matter of convenience. Seely v. The City of Pittsburgh, 1 Norris 360, ruled upon by the court below, differs from this case. That case arose upon a paving lien on an avenue extending through property of different kinds on a great highway of the city. Here, however, the use of Hazel-wood avenue is restricted to the limited number who live contiguous thereto, and who alone derive benefit therefrom, and owing to the character and extent of their property in almost equal proportions.
    It would be unjust to impose the expense of grading such an avenue upon the public at large. Under the provisions of the Act of 1864, “ The assessments authorized by this act shall be liens upon the properties assessed, from the commencement of the' improvements for which they were made, and shall, if filed within six months after the completion of the said improvement, continue liens for five years.” The work was approved and the contract taken off the hands of the contractor on December 3d 1874, by the street committee. Kaiser paid the assessments on June 3d 1875, having been told by the city attorney that if the assessments were not paid on that day a lien would be filed.
    Defendant in error contended that the court below also held, that from the fact that the contractor actually stopped work on December 2d 1874, although the work oh the avenue was not approved nor the contract taken off the hands of the contractor by the regular committee of councils until the next day, December 3d 1874, that the payment of the assessments for said grading was not within the statutory period of six months; that the assessments were not a lien upon the property of John Kaiser, on the day the same were paid by Kaiser, and that the said payment cannot be set up as a defence to the plaintiff’s claim in this case. We submit that the completion of the improvement under this act means the time when the work was approved, and the contract taken off the hands of the contractor by the street committee.

      Rodgers & Oliver and J. H. Callahan, for defendant in error.—
    Under the decision of this court in Seely v. The City of Pittsburgh, supra, this assessment is clearly illegal. The improvement was completed on the 2d of December 1874. The assessment was not paid until June 3d 1875. The lien had expired.
    If the improvement is not completed until the work is accepted by councils, it would be in the power of councils to indefinitely extend the time for filing the lien.
    By the very terms of the act a secret lien is allowed to exist against the property during the entire continuance of the work and for six months after its completion. Such liens are justly looked upon with disfavor by the courts, .and the statute authorizing them should be rigidly construed. The right to extend them a day beyond the completion of the work involves the right to extend them indefinitely.
    In this case the secret lien had been running since November 1872 — nearly three years. Public policy, as well as private rights, would seem to demand that it terminate at the earliest possible moment.
   The judgment of the Supreme Court was entered, November 7th Í877,

Per Curiam.

— This case falls directly within the ruling in the case of Seely v. City of Pittsburgh, 1 Norris 360, that the per foot front rule of assessment is inapplicable to lands such as those along Hazelwood avenue.

The payment by Kaiser of the assessment of $906.93 was voluntary, the lien upon the premises, even if rightly assessed, having expired at the time of payment.

On both grounds the court below was right.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Sharswood

license: Public Domain

text:
    Greenawalt versus Kohne et al.

    1. Where at the execution of a writing a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing has been executed, parol evidence is admissible, although it may vary and materially change the terms of the contract.
    2. In debt upon a bond the defendant offered to prove that the bond was given for unpaid purchase-money of a certain lot; that to induce the purchase of said lot, plaintiff verbally agreed that if defendant did not like the properly, plaintiff, on request of defendant, would take back the same, and pay defendant a premium and cost of his improvements; that there should be no personal liability by defendant for the purchase-money, and that plaintiff should look solely to the property for payment; that plaintiff was not to part with the bond or mortgage ; that when defendant asked that the foregoing agreement should be inserted in the papers being executed, plaintiff said it was unnecessary, that his bond was sufficient, and that defendant had asked plaintiff to take back the property, as stipulated, which was refsued. The court below rejected these offers. Held, that they should have been received.
    October 30th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 88.
    Debt by Frank Kohne and E. II. Myers, administrators of John R. Bingler, deceased, against Jacob Greenawalt, on a bond given by defendant to said Bingler for a balance of purchase-money.
    This bond which was offered in evidence by the plaintiff was in the penal sum of $27,000, was made payable in instalments and secured by a mortgage on a lot in the city of Pittsburgh.
    At the trial the defendant made severals offers of evidence, in substance as follows :—
    “ That the bond in suit was given by defendant to Bingler, the decedent, for the balance of purchase-money on a lot of land in the Twenty-third ward of Pittsburgh, secured by mortgage of same date; that witness was present when the deed, bond and mortgage were executed and interchangeably delivered ; that it was then and there, immediately before the execution of said papers, claimed by defendant and admitted by said Bingler, that it was part and parcel of the agreement of the sale that said Bingler would, on request of the defendant, at any time within one year, take back the property and pay defendant a premium of $1000 and the cost of his improvements, or, if requested within two years, would pay $2000 premium and the cost of improvements; that there should be, in any event, no defendant for said said having to look to the land alone for the collection thereof; that said Bingler was, under no circumstances, to part with the ownership of the bond and mortgage; that when defendant claimed, as above stated, that the foregoing terms were part of the agreement of sale, and were assented to as such by said Bingler, defendant requested that they be inserted in the papers then proposed to be executed, but said Bingler said that it was not necessary, that his word was sufficient, that he would never' go behind his agreement, and that defendant might depend upon said terms being carried out as fully and effectually as if they had been inserted in the papers; that, relying on such statements and promises, defendant executed and delivered the bond and mortgage and accepted the deed; that subsequently, within the first year, and again within the second year, defendant notified said Bingler of his wish to cancel the purchase and annul the sale, according to the above-stated agreement, but said Bingler evaded and finally declined to do so, alleging that it was out of his power, the bond and mortgage being no longer under his control, but still promised that he would get it back and fully perform his promise, as demanded by the defendant, which he never did or offered to do, though repeatedly requested and urged by defendant.”
    The plaintiffs objected to these offers on the ground that they were incompetent and irrelevant; that they contradicted and were at variance with the written contract; and that the parties having put their contract in.writing in the deed, bond and mortgage mentioned in the offers, the same are conclusive of what the agreement was.
    The court, White, J., sustained the objections and said:—
    “ Until our Supreme Court expressly decides that a bond and mortgage can be swept away by parol testimony of the kind offered, I am unwilling to take that position or to admit such testimony. If that is the law of Pennsylvania, it will be a very easy matter to get clear of paying purchase-money, and our bonds and mortgages for purchase-money will be the most uncertain securities that can be imagined. Even if the alleged contract had been in writing, I doubt whether the defendant could defend an action on the bond without proving a tender of re-conveyance, and putting the vendor in statu quo.”

    The court then directed a verdict to be rendered for the plaintiffs.
    A motion was subsequently made for a new trial, which was refused, White, J., filing the following opinion:—
    “ The offers of evidence rejected by the court may be reduced and condensed into two:
    “ 1. That defendant was induced to purchase the property by the promise of Bingler to buy it back if defendant should become dissatisfied, and to pay for his improvements and a premium on his purchase ; that at the time the deed, mortgage and bond were executed, defendant called attention to that agreement, Bingler admitted it, and promised to carry it out; and relying upon his promise, defendant executed the bond and mortgage, without having Binglcr’s agreement reduced to writing; a year or so afterwards he called upon Bingler, in pursuance of the agreement to take back the property, &c., which he promised to do, but died without doing it.
    “ 2. That there was to be no personal liability on the bond; Bingler was to look to the mortgaged premises only for payment; that when the bond was ready for signing, defendant objected to signing it, because that provision was not inserted, and was induced to sign it because of the representations of Bingler that it made no difference, and of his promise that he would not part with the bond, and would faithfully carry out his agreement to look to the land only for payment.

      “ The old common-law rule that parol evidence is inadmissible to contradict, add to, change or vary a written agreement, has been greatly relaxed in Pennsylvania. In a recent case it was said by the judge, delivering the opinion of the Supreme Court, that it does not exist in this state. Perhaps he did not mean that the rule has been wholly abrogated; but that it does not exist in this state to the same extent and stringency it does in England. Certainly we have no adjudicated case that goes so far as to say that there is no limit to the admission of parol evidence to contradict a deed or written instrument. As late as Martin v. Berens, 17 P. F. Smith 459, the rule is recognised and applied, and the exceptions to it clearly defined.
    4 4 It is difficult to reconcile and harmonize all our decisions on the subject. Great latitude has been allowed in the admission of parol evidence to prevent fraud or injustice. For this purpose parol evidence has been admitted of all the circumstances of the transaction, the subject-matter, the parties, the consideration — to prove a contemporaneous verbal agreement not directly contradictory to the written one — to supply omissions and deficiencies so as to carry out the true intent of the agreement, and generally to save a party from injustice, where a court of equity would give relief, from fraud, accident or mistake.
    44 Where a deed or other writing has been obtained by fraud, or where there was no fraud in obtaining it, but it is being used, or attempted to be used, for a purpose different from what it was intended, parol evidence is admissible: Thompson v. White, 1 Dali. 427, and the long list of cases following it, are based on this principle.
    44 The principle running through all the cases seems to be this: that the common-law rule, which was intended to guard against fraud and injustice by not permitting parties to deny their solemn written agreements, or overthrow them by the uncertain words and memories of unreliable witnesses, should not be invoked as a shield to fraud, or be so applied as to work injustice.
    “ The rule, as it stood at common law, was, perhaps, too stringent. In the progress of judicial inquiry eases arose which required modifications of it. But the principle upon which it was based has received the sanction of the best judicial minds in England and America, and strikes even the common mind as eminently sound and proper.
    “ I know of no decision of our Supreme Court that goes the full length claimed by the defendant in this case. And I am unwilling to hold that a purchase-money bond and mortgage can be set aside and made utterly null and void by parol evidence,, .such-as was offered in this case, until our Supreme Court shall expressly so decide.
    “ The defendant does not deny that he bought the property and voluntarily executed the bond and mortgage. He does not allege any mistake or omission in the deed or mortgage. There is no defect in the title. He took possession in pursuance of his purchase, and still retains possession. He never tendered to Bingler a re-conveyance of the property, and no such tender accompanied his offer of evidence. While thus in possession, he seeks to defeat a recovery on his bond on the ground of a parol agreement by the vendor to buy back the property. He does not charge any fraud in the sale to him. He does not allege any accident or mistake in the conveyance to him. But he says that the vendor promised to buy back the property if he should become dissatisfied with it, and, as he offered to give back the property, it is against conscience and fraudulent for the vendor, or his assignee, to insist upon collecting •the bond. Hp claims the right to refuse payment on his bond, and to hold title and possession of the land as a means of compelling his vendor to comply with his parol contract to buy back the property, pay for his improvements, and pay a certain premium on his purchases.
    “ The defendant, therefore, stands on the footing of a vendor seeking to enforce a parol contract for the purchase of land. In the face of the statute against frauds and perjuries a direct action on the parol contract in this case could not be sustained. Why should it be more efficacious as a defence to an action on his bond ? The only fraud that can be charged against Bingler is his refusal to carry out his parol contract to buy back. But a mere refusal to consummate a parol contract for the purchase of land is not fraudulent in law. If that were considered sufficient evidence to sustain an action on a parol contract, the statute would be a nullity. And I cannot conceive why it should have greater force when set up as a defence to the payment of his bond.
    “ The defendant trusted in the verbal promise of Bingler. He knew, or must be presumed to have known, the provisions of the statute against frauds and perjuries. He knew that a parol contract for the purchase of lands was worth nothing. He spoke about having it put in writing, but when Bingler said that was unnecessary, that he would keep his promise and faithfully live up to it, he did not insist upon having the agreement put in writing, but relied upon the word and trusted to the honor of Bingler. If he has suffered by Bingler’s refusal to keep his promise, he has no person to blame but himself. Ho is in no worse condition than many others who have relied upon parol contracts for the purchase of real estate.
    • “ That this promise of Bingler was a main inducement for the defendant to purchase does not alter the case. It was not a fraudulent concealment or representation of any fact. It does not touch the validity of the sale from Bingler to defendant. When the defendant got his deed and gave his bond and mortgage, and thus closed his contract of purchase, it was his duty, if he considered that previous promise of any importance, to have it reduced to writing and signed by Bingler. Failing’ to do so it amounts to nothing. If parol evidence of such promises, by a vendor, during the preliminary negotiations of a sale, are to be admitted to set aside a sale and defeat a recovery on the bond and mortgage of the vendee, sales of real estate would become very uncertain transactions, and purchase-money bonds and mortgages would become the most worthless of securities. We are, therefore, of opinion that the evidence, so far as it constituted a defence to the action, was properly ruled out.
    “ But on the other part of the offers, which related to the agreement that the defendant was not to be personally liable on the bond, and that Bingler was to rely solely upon the mortgaged premises for its payment, wo have more doubt.
    “ Offer C. was to prove that the agreement between Bingler and defendant was that defendant was not to be liable personally for the purchase-money, that at the time defendant signed the bond he called attention to that agreement, when Bingler said it was not necessary to have it put in the bond, that he ‘ would stand to and keep his agreement as fully and effectually as if it was inserted,’ that he would ‘never claim any personal liability,’ and that ‘ defendant would not have signed the bond or consummated the purchase but for such inducement and promise,’ &c.
    “ This seems to come within the ruling of Irwin v. Shoemaker, 8 W. & S. 75, and some other cases. It is undoubtedly in derogation of the common-law rule. But it is our duty to follow the rulings of our Supreme Court, and we shall cheerfully do so wherever those rulings clearly cover the case before us. But in Irwin v. Shoemaker the opinion seems to be based on a mistake made by the scrivener in drawing the bond, thus bringing the case within the exception, that where there was a mistake a court of equity will reform the instrument. In this case there was no mistake. Whether the declaration of Bingler, that there was no necessity for inserting the provision against personal liability and that he would keep his promise, was evidence of fraud sufficient to admit parol evidence to contradict the plain terms of the bond, may be doubted. But even if that should be the case it was not sufficient to prevent a recovery on the bond, it would only limit an execution on the judgment to a levy on the mortgaged premises. And it is unnecessary to send the case back for another trial on that point at this time. We must assume that the defendant could have established what he offered to prove. The plaintiff objected 0to the evidence and it was not received. If it had been received, its only effect would have been to restrain the execution. We can do that until the question shall be passed upon by the Supreme Court. In any event the case will go to that tribunal. It is better, therefore, for the plaintiff to have the execution restrained to the mortgaged premises and have the case heard in the Supreme Court. If that should decide that the evidence was properly rejected, the plaintiff will have leave to issue execution generally. If decided otherwise, and the plaintiff should wish to have the question tried by a jury, it can be tried, perhaps, by a feigned issue, or if necessary a new venire will be ordered by the Supreme Court.

      “ Believing this to be the best course for both parties, a new trial is refused. And it is ordered that any execution, issued on the judgment that may be entered on the verdict, shall be restrained until the further order of the court to the premises described in the mortgage which was given to secure the payment of the bond in suit.”
    The defendant took this writ, assigning for error the rejection of his offers of evidence, and the direction of the court that the verdict should be for the plaintiffs.

      Hill Burgwin, for plaintiffs in error.
    — Parol testimony is admissible to show what passed at the time of the execution of the deeds: Thomson v. White, 1 Dall. 424: Overton v. Tracey, 14 S. & R. 326; Oliver v. Oliver, 4 Rawle 144. Evidence is admissible to prove a parol agreement to release an obligor from personal liability on a bond: Irwin v. Shoemaker, 8 W. & S. 75; Hoeveler v. Mugele, 16 P. F. Smith 348. A written instrument may not only be explained by parol but its terms may be varied or contradicted when it is shown that had it not been for the oral stipulation made at the time, the party affected would not have executed it: Caley v. Philadelphia and Chester Railroad Company, 30 P. F. Smith 370; Kostenbader v. Peters, Id. 438; Graver v. Scott, Id. 94; Lippincott v. Whitman, 2 Norris 244.

      M. W. Acheson, for defendants in error.
    — A -written contract may only be varied by parol evidence where it contradicts nothing expressed in the writing: Chalfant v. Williams, 11 Casey 212; Martin v. Berens, 17 P. F. Smith 459. The evidence offered did not propose to show that anything was omitted from the written agreements. They assume that the parties were fully aware of their contents. The effort was to radically change and modify them. Parol evidence to vary a written instrument was held to be inadmissible in the following cases: Harbold v. Kuster, 8 Wright 392; Lloyd v. Farrel, 12 Id. 73; Collins v. Baumgardner, 2 P. F. Smith 461; Anspach v. Bast, Id. 356; Miller v. Fichthorn, 7 Casey 253; Hill v. Gaw, 4 Barr 493; Woods v. Wallace, 10 Harris 171; Lyon v. Miller, 12 Id. 392; Kennedy v. The Erie and Wattsburgh Plank-road Co., 1 Casey 224.
   Mr. Justice Sharswood

delivered the opinion of the court, November 12th 1877.

We are of opinion that the offers of evidence by the defendant below ought to have been received.

It is agreed that the English rule excluding parol evidence to vary a written contract has not been adopted in this state in all its stringency. The exceptions, indeed, have in many instances almost eaten out the heart of the rule itself; but it is not altogether abolished, as may be seen in Martin v. Berens, 17 P. F. Smith 459, where, in an elaborate opinion, our late lamented brother, Mr. Justice Williams, exhaustively states the exceptions to the rule. But from Hurst’s Lessee v. Kirkbride, decided in 1773 — reported by Chief Justice Tilghmah in Wallace v. Baker, 1 Binn. 610— down to the present time, this court has uniformly held, that where at the execution of a writing a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which' the writing has been executed, that parol evidence is admissible, though it may vary and materially change the terms of the contract. Mr. Justice Williams recognises this in his opinion in Martin v. Berens, for he says, speaking of the case then before the court: “ Here there is no allegation in either affidavit that the defendants were induced to execute the lease on the faith of the alleged parol agreement.” It would be an affectation of learning to cite all the cases which establish this principle, but to those contained in the argument of the counsel of the plaintiff in error, may be added Miller v. Henderson, 10 S. & R. 290, which is instar omnium, but may be noticed as a case on all fours with the one now before the court. There parol evidence was held to be admissible under the plea of payment to a suit on a bond against a surety, to show that he executed the bond under a declaration by the obligee, that his signing was mere matter1 of form, and that he never should be called on for payment. Chief Justice Tilghman says: “ The destruction of a written instrument by parol evidence may seem dangerous, and, in fact, it is so. But the community would be in a still worse condition if it were established as an inflexible rule, that when a man’s hand was once got to an instrument, no matter by what means, the door should be shut against all inquiry. The encouragement to fraudulent villainy would be so great under such a system that the consequences might be intolerable. The defendant does not deny that he executed these notes, or allege that he was ignorant of their contents ; but declares that he would not have executed them, but for the assurance of the plaintiff that the having two names was no more than matter of form, and that he should not be looked to as payer.” We cannot perceive any ground for the hypothesis of the learned judge below, founded upon the offers of evidence, that it should be regarded as a separate parol contract by the plaintiff below to repurchase, void by the Statute of Frauds, and only to be admissible upon showing fraud at the time. The law may be so. We cannot anticipate, of course, what the evidence may be on another trial. But certainly if the offers are supported by competent and sufficient evidence, it was all one and the same agreement containing concurrent and dependant covenants. It need not be said that a tender of a reconveyance was unnecessary, unless the improvements on the ground were paid for and the other terms of the contract offered to be complied with.

Judgment reversed and venire facias de novo awarded.


author: Mr. Justice Woodward

text:
    Miller versus Irwin.
    1. The taint of usury cannot be eradicated by the substitution of one security, or one set of securities, for another, so long as the' original debt survives.
    2. In a suit upon a note the defendant, in her affidavit of defence, averred that the loan for which the note was given had been carried by her father for two years, at ten per cent interest, and. that the note signed by her was the renewal of one which was the last of a series given by him. The court below entered judgment for the amount of the note, and only abated the excess of interest for the four months which defendant’s note had to run. Held (reversing the court below), that she had the right to set up also the excess of interest paid by her father against the plaintiff’s claim.
    October 31st 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 33.
    Assumpsit by John Irwin, Jr., president in trust for the United Savings Bank, on a stock note drawn by Mary A. Miller, on May 20th 1876, at four months, for $2949.32, and payable to the order of the cashier of said bank.
    Defendant filed an afiidavit of defence, in which she averred, inter alia: That the note upon which this suit was brought is not the individual note, or given for the individual debt of said defendant, but that the same was a renewal of a note similar thereto given by-David Davis, deceased, the father of the defendant, and whose executrix she is, and that the same is a debt of the estate of said David Davis, deceased, and not the individual debt of said Mary A. Miller; that at the time of making said note by said decedent there was delivered to the said plaintiff (as appears from the contract, a copy of which is filed by the said plaintiff, and which was also made part of defendant’s affidavit), fifty shares of the capital stock of the United Savings Bank of Pittsburgh, as collateral security for the payment of the same, which said shares of stock were, according to the contract, to be sold in default of the payment of said note at maturity, and the proceeds thereof applied to the payment of said note, and should any deficiency then remain unpaid said signer was to be liable for the deficiency; that at the time of delivery of said note the said shares of stock were of far greater value than the amount of said debt, to wit: of the par value of $5000, and the said plaintiff below still holds the same, as it does not appear from any allegation by the said plaintiff that the said stock has been sold as required by said contract. Defendant believes that she is not legally liable on said note, as said plaintiff has failed to comply with the terms thereof, and at all events she would only be liable for the deficiency, if any there bo, after the sale of the stock left as collateral and application of proceeds to the payment of said note, and defendant below claimed credit therefor, which she also claimed in case said stock, or any part thereof, be sold.”
    In a supplemental affidavit she further averred, that “ she was induced and directed to make and sign said note by the officers of said bank, with the distinct and positive assurance that it was only as executrix of said estate that she signed it; that the said plaintiff charged and she paid out of said decedent’s estate nine per cent, interest thereon; that said loan has been carried along for two years by said decedent at ten per cent, interest; that affiant claims, by way of defence, a set-off for all such usurious interest so paid by her.”
    The plaintiff took out a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, and, after hearing, the court made the rule absolute, and entered judgment for the amount of the note, less the excess of interest, for the time the note had to run, calculating the interest paid at the rate of nine per cent, per annum.
    The defendant took this writ, alleging that the court erred in not allowing defendant a set-off for all the excess of interest paid on the whole series of notes of which the note in suit was the last renewal.

      S. B. W. Grill and T. Walter Day, for plaintiff in error.
    — The question of usury was a question of fact for the jury, both as to the amount of per cent., and the length of time the usury had been taken, and the court had no authority to enter a judgment striking off the excess of interest for the time, merely, that the note in suit had to run.
    In point of fact, and as the affidavit of defence set forth, the note was a renewal of other notes, and the whole series of notes was one transaction, and the defendant was entitled to a credit for the whole amount of the excess of interest paid during said continuance and renewal of the note: Overholt v. The First National Bank of Mt. Pleasant, 1 Norris 690.

      Hill Burgwin, for defendant in error.
   Mr. Justice Woodward

delivered the opinion of the court, January 7th 1878.

In the supplemental affidavit of defence, it was alleged in specific terms that the loan for the amount of which the note in suit was given, had been carried along by David Davis, the father of the defendant, for two years, at ten per cent, interest. The note signed by her was the renewal of one which appears to have been the last of a series given by the father for the purchase-money of stock of The United Savings Bank. The whole series of notes applied to and secured the same debt. The cases collected in Campbell v. Sloan, 12 P. F. Smith 481, unite in deciding with unmistakable emphasis that the taint of usury cannot be eradicated by the substitution of one security or one set of securities for another, so long as the original debt survives. The excess of interest for four months only was abated at the entry of the judgment. The defendant had the right to set up the excess of interest paid by her father against the plaintiff’s claim.

Suggestions are contained in the affidavits which were urged on the argument as amounting to allegations of fraud in the procurement of the defendant’s signature to the note. While the use of indirect means by the officers of the bank may be understood to be charged, the facts are stated so vaguely that it would be premature now to discuss any questions to which they may possibly give rise. These questions can be developed in a trial in the Common Pleas, for the purposes of which the record is sent back.

Judgment reversed, and a procedendo awarded.


text:
    Addis versus City of Pittsburgh.
    1. Where the law requires that contracts for certain municipal work shall only be made after due advertisement and to the lowest bidder, neither the municipality nor its officers can make a binding contract unless in this prescribed manner.
    2. After duo advertisement a contract to grade a certain avenue was let by the city of Pittsburgh to A., who was the lowest bidder. After proceeding somewhat with the work the councils of the city directed a change of the grade in the avenue and the engineer and road committee of the city authorized A. to proceed with the work, and assured him he should be paid for his additional labor what it was reasonably worth. In a suit on a quantum meruit for this additional work, Held, that neither the city nor its subordinate officers could make a contract other than in the manner prescribed by law; that the city engineer and road committee had no power to make this agreement for the additional work, and that A. could not recover therefor.
    October 31st 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to tire Court of Common Pleas, No. 2, of Allegheny comity: Of October and November Term, 1876, No. 196.
    Assumpsit by Mattorly Addis against the city of Pittsburgh, to recover §5000, for extra work and materials furnished as a contractor in grading Wilkins avenue, in said city.
    The councils of Pittsburgh on .the 25th of July 1870 passed an ordinance authorizing the grading of said avenue, and directing the city engineer to advertise and let the same in conformity with law. The engineer let the contract to Addis, who gave bonds for the completion of the work and entered upon the performance of the same under the direction and control of the city engineer. Before the grading was completed, on the 12th of February 1872, councils passed an ordinance changing the grade of said avenue. In compliance with this ordinance the city engineer directed the contractor to proceed and lower the grade, and when upon demand he was refused payment for the extra work, he brought this action and sought to recover on a quantum meruit.

    At the trial before Ewing, P. J., the plaintiff made several offers, which were to prove, in substance, that when the grade was changed by the ordinance of the 12th of February 1872, that the city engineer came to plaintiff and instructed him to go on with the work and lower the grade according to said ordinance, and that the city would pay him what was right and fair ; that witness objected to doing the extra work at the price fixed in the original contract, and the city engineer and the road committee instructed him to go on ; that he completed the work under the direction of the city engineer ; that the estimates were made by him and approved by the road committee, and that the city accepted the work. He also proposed to show the character of the work, and what it was worth.
    The defendant objected to these offers, on the ground that neither the city engineer nor the road committee had authority to make any such contract as here set forth, on behalf of the city.
    The court sustained the objections, and directed a verdict for the defendant. This direction and the rejection of the foregoing offers were the errors assigned by plaintiff, who took this writ.

      Friend & Cook, for plaintiff in error.
    — A corporation is bound, when it is shown that by its own act it rendered extra labor and extra material necessary to conform certain work to the requirements of its original contract. The city engineer estimated the work done, and ascertained the number of cubic yards excavated under this second ordinance, down to the completion of the grading. Has not the city assented to this additional work ? Or is not this precisely a case as in Messenger v. City of Buffalo, 24 New York 197: “Where labor was required to be performed.by the contractor in the fulfilment of his contract, because of an act of the corporation itself, and which the contractor could not control ?”

      Thomas S. Bigelow, City Solicitor, for the city.
    — No authority, either general or special, was shown, whereby the city engineer or road committee could allow extra compensation for the work done, and no such authority existed.
   Mr. Justice Sharswood

delivered the opinion of the court, November 12th 1877.

We think that the learned judge below was right in his ruling upon the offers of evidence by the plaintiff, and in his charge to the jury.

Under the Acts of Assembly and the ordinances of the city councils given in evidence, contracts for the grading and paving of streets, are to be let after due advertisement to the lowest and best bidder. It is perfectly true that after the contract had been given to the plaintiff, the city had no right to alter it and impose different terms on the contractor as they did by the ordinance changing the grade of Wilkins avenue. The plaintiff would clearly have had the right to rescind the contract, recover for the work he had done, and it may be damages for the breach. The proper course for the eity, undoubtedly was to advertise and relet the work. But the plaintiff preferred to go on with the work under his contract. He relied, it was offered to prove, on the assurance of the city engineer and the street committee that he should be compensated for the extra work. But the city itself, much less any of its subordinate officers, or committee, had no power to make an agreement to pay for such work on the rule of a quantum meruit. We may regret that the plaintiff acted unadvisedly, but to assist him in this hard case would lay the axe at the root of the system which imperatively requires all municipal work of this character to be done by the lowest and best bidder. Judgment affirmed.


author: Mr. Justice Sterrett

text:
    Jackman et al. versus Delafield et al.

    Where full power is given by a testator to his executors to sell the residue of Ms real estate for the purpose of distributing the proceeds among the objects of his bounty, this power belongs to them virtute officii, and may be exercised by an administrator with the will annexed, under the provisions of the Act of February 24th 1834.
    November 1st 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ
    Error to tlie Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1877, No. 193.
    Ejectment by Maturin L. Delafield and Mary, his wife, in right of said wife, Maturin L. Delafield, trustee under the will of James Ross, Jr., and Annie R. Aspinwall, against Andrew Jackman and others, for a lot of ground in the city of Pittsburgh, which II. B. Wilkins, administrator de bonis non testamento annexo of James Ross, Sr., deceased, sold and conveyed to Andrew Jackman, by deed dated May 9th 1872.
    James Ross, Sr., who died November 27th 1847, by his last will, probated December 1st 1847, devised his residuary estate as follows, to wit: “ I do hereby devise and bequeath unto my executors hereinafter named, all the rest and residue of my estate, real and personal, whatsoever and wheresoever, with full power and authority to take possession thereof, to institute suit for the recovery of the same, to compound and compromise all disputes, settle all differences, and execute all necessary releases; to lease the real estate not hereinbefore specifically devised, according to their discretion; to sell and convey the said real estate in such manner as they shall think proper, either at public or private sale,” &c.
    The testator appointed as executors of his will, his son James Ross, Jr., and Dr. William Addison. James Ross, Jr., died November 12th 1851. Dr. Addison renounced his executorship February 19th 1853.
    On the 12th day of May 1864, letters of administration de bonis non cum testamento annexo, upon the estate of said James Ross, Sr., were duly granted by the register of said county, and issued to H. R. Wilkins, Esq., who, as above stated, conveyed the lot of ground in dispute to Andrew' Jackman, one of the defendants, and through whom the other defendants claimed title.
    The said lot of ground was part of the residuary estate of the said James Ross, Sr., devised as aforesaid to his executors, with power to sell and convey the same. Ry his said will, James Ross, Sr., directed his executor to distribute his residuary estate between his son James Ross, Jr., and his granddaughters, Annie R. Aspinwall, Harriet Coleman, and Mary Jane Coleman, the son to receive the one-half, and the granddaughters the other half. Mary Jane Coleman died in the lifetime of James Ross, Sr., and by the terms of his will, her share in his estate went to her sisters, the said Annie R. Aspinwall (one of the plaintiffs) and Harriet Coleman. Harriet Coleman intermarried with Eugene Livingston, and is now ' dead. Mary C. Delafield, one of the plaintiffs, is her only surviving child.
    James Ross, Jr., died in the year 1851, and by his will devised his residuary estate to William Addison, Charles Bradford, and H. B. Wilkins, in trust, with power to sell. Shortly before the commencement of this ejectment, the Orphans’ Court of Allegheny county, at the instance of the plaintiffs, discharged Mr. Wilkins (who was the sole remaining trustee under the will of James Ross Jr.), and appointed Maturin L. Delafield such trustee, and he is one of the plaintiffs in this case.
    The plaintiffs claimed that the power of sale under the will of James Ross, Sr., deceased, could not be exercised by H. B. Wilkins, the administrator de bonis non cum testamento annexo of said decedent, and therefore that his deed to Andrew Jackman conveyed no title.
    The cause was tried before Kirkpatrick, J., who instructed the jury to find a verdict for the plaintiffs, subject to the opinion of the court upon the question of law arising upon the plaintiffs’ second point, to wit: Whether the deed in evidence from H. B. Wilkins, administrator de bonis non cum testamento annexo of James Ross, Sr., to Andrew Jackman, one of the defendants, and through whom the other defendants claimed title, did or did not convey title to the land in dispute.
    The jury found a verdict for the plaintiffs, and subsequently the court (without filing any opinion) entered judgment for the plaintiffs upon the question of law reserved.
    This was the error assigned by defendants, who took this writ.

      M. W. Acheson and Fetterman & Johnston, for plaintiffs in error.
    — The Act of 12th of March 1800, Purd. Dig. 417, pl. 64, 66, is conclusive of the power of an administrator de bonis non cum testamento annexo to exercise all the powers to sell real estate which the testator conferred on his executors who have died, refused-or renounced, “ as fully and completely” as such deceased, refusing or renouncing executors might have done. The duties and the powers of the executors of James Ross, Sr., in respect to the sale of the land in controversy, were official by virtue of their office, and devolved upon the administrator with the will annexed : Meredith’s Estate, 1 Parsons 433; Keefer v. Schwartz, 11 Wright 503; Evans v. Chew, 21 P. F. Smith 47; Lantz v. Boyer, 31 Id. 325.

      D. T. Watson, Hill Burgwin and Malcolm Hay, for defendants in error.
    — The Act of 1800 was supplied by the Act of February 24th 1834, Pamph. L. 70, Purd. Dig. 419, pi. 74. Under both acts the decisions are in unison in establishing the doctrine that the intention of the legislature was confined to powers given to executors as such virtute officii, and did not extend to a power of sale collateral to or unconnected with their duty as executors: Evans v. Chew, 21 P. F. Smith 50; Ross v. Barclay, 6 Harris 180; Waters v. Margerum, 10 P. F. Smith 44.
    An administrator de bonis non, with the will annexed, may execute a power to sell, in order to bring the land into distribution, but not to execute a trust for a collateral purpose; the statute places him on the footing of a surviving executor, but not on that of a testamentary trustee: Ross v. Barclay, supra; Waters v. Margerum, supra; Evans v. Chew, supra; Lantz v. Boyer, supra.

   Mr. Justice Sterrett

delivered the opinion of the court, No: vember 12th 1877.

The plaintiffs in error based their defence in the court below on the deed of H. Brady Wilkins, Esq., administrator de bonis non cum testamento annexo of James Ross, Sr., deceased. They contended that the power of sale, given by the testator to his executors, was rightly exercised by the administrator, with the will annexed, and that by his deed a good title became vested in Andrew Jackman, the vendee. The court was accordingly requested to charge the jury that their verdict should be for the defendants. This instruction was refused by the learned judge, and a verdict was directed pro forma, in favor of the plaintiffs, subject to the opinion of the court in banc, on the question of law raised by their second point, viz.: whether the deed in evidence did or did not convey title to the lot in controversy. This question was decided adversely to the defendants, and judgment was entered on the verdict against them. This action of the court forms the subject of complaint in the several assignments of error. The only question presented is the authority of the administrator de bonis non to execute the power of sale given by the testator to his executors. If it was intended to be exercised by them as executors by virtue of their office, on their decease, resignation or removal, it would devolve on the administrator with the will annexed. Whether the power was to be exercised by them as executors, or otherwise, must be determined by the provisions of the will.

After devising portions of his real estate, and making sundry bequests, the testator devised a,nd bequeathed to his executors all the rest and residue of his estate, real and personal, with full power and authority to take possession thereof; to institute suits for the recovery of the same; to compound and compromise all disputes; “ to sell and convey the said real estate in such manner as they shall think proper, either at public or private sale,” and “ to receive the purchase-money and give acquittances for the same.” He then directed his executors “ to pay or transfer the one equal half part of the same rest and residue” of his real and personal estate to his son James absolutely, and directed the remaining one-half part to be equally divided among his three granddaughters. It is very clear that full power was thus given by the testator to his executors 'to sell the residue of his real estate for the purpose of distributing the proceeds thereof, in connection with the residue of his personal estate, among the objects of his bounty. Nor is this authority restricted or in any manner affected by the creation of the trusts in favor of his granddaughters. It has been definitely settled by this court that where such power of sale is given by will to the executors therein named, it belongs to them virtute officii, and may be exercised by .the administrators with the will annexed, under the provisions of the Act of February 24th 1834: Evans v. Chew, 21 P. F. Smith 51; Lantz v. Boyer, 31 Id. 325. The question before us has been distinctly ruled in these cases, and it is unnecessary for us to repeat what is there so well said by our brother Sharswood.

The judgment is reversed, and judgment is now entered in favor of the defendants below, on the question of law reserved, non obstante veredicto.


author: Mr. Justice Gobdon

text:
    Bassett & Brown versus Baird.
    A mechanic’s lien was filed after the property had been sold by B. to M. Previous to the sale B. had settled with plaintiffs and given his note for the work done. B. afterwards became insolvent, and his property passed into the hands of an assignee in bankruptcy. Plaintiffs proved their claim before the register in bankruptcy and received a dividend, but neglected to state in their probate of their claim that it was secured by the mechanics’ lien, as required by sect. 5077 of the Bankrupt Act. M. contended that this neglect had the effect under that act to waive the lien and relinquish it to the assignee, üéld, that M. was a third party not interested in the distribution of the bankrupt estate and could not make this complaint. Held, further, that the property covered by the lien occupied the place of a surety for the payment of the debt of the bankrupt and there was no reason why the plaintiffs should have set it forth in their proof.
    November 2d 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1877, No. 189.
    • Scire facias sur municipal claim, issued by W. H. Bassett and J. T. Brown, trading as Bassett & Brown, against Samuel H. Baird.
    Plaintiffs contracted with Baird to paint and glaze a bouse erected by the latter on property owned by him, for which they were to receive $220. The plaintiffs alleged that the work was completed about June 6th 1873. This fact was disputed by defendant, who averred that it was completed in the fall of 1872. The lien was filed November 15th 1873.
    At the trial it appeared that on the 27th of December 1872, Baird gave to plaintiffs a note for $220, the contract price for the work; that on the 16th of February 1873, he sold and conveyed the premises to Mrs. Moorehead; that on the 7th of April 1873, Baird filed his petition in bankruptcy, and Bassett & Brown proved their claim in bankruptcy, and received a dividend of $55 on account thereof. In proving their debt it also appeared that they had made no mention of their security by the mechanics’ lien. The defendant submitted the following point:—
    “ That if-the plaintiffs proved their claim against the defendant in proceedings before the register in bankruptcy, and received from the assignee of said defendant a dividend on the claim, they cannot maintain this action for the balance due on said claim.”
    The court affirmed this point, being of the opinion that the proof of debt in bankruptcy was a relinquishment of the security, and instructed the jury to find for defendant.
    After verdict and judgment, the plaintiffs took this writ, assigning for error this instruction and the affirmance of defendant’s point.

      Slagle & Wiley, for plaintiffs in error.
    — The court below based its ruling upon the 5077 section of the Bankrupt Act, which reads: “ To entitle a claimant against the estate of a bankrupt to have his demand allowed, it must be verified by a deposition in writing, under oath, and signed by the deponent, setting forth the demand, the consideration thereof, whether any and what securities are held therefor. * * * No claim shall be allowed unless all the statements set forth in such deposition shall appear to be true.”
    Under this section the United States courts have held : “ That a secured creditor who proves his claim without reference to his lien, and without apprising the bankrupt court of its existence, thereby waives his lien and relinquishes it to the assignee.” This evidently relates to liens upon the estate passing to the assignee. If the lien were upon any other estate, it could not be relinquished to the assignee, because he would have no interest in it. This provision and the rulings under it are rules of practice for courts of bankruptcy, and can have no effect upon parties and property which do not come under their control. The liability of the property in the hands of Mrs. Moorehead was in the nature of suretyship. It therefore became the duty of the creditors to exhaust all remedies against the principal debtor before resorting to the property upon which they had a lien. By pursuing this plan they thereby relieved her property to the extent of the dividend received; and yet, by so doing, she contends this forfeited all claim to the balance.
    No paper-book nor argument for defendant in error.
   Mr. Justice Gobdon

delivered the opinion of the court, January 7th 1878.

From the statement submitted to us, we learn that the mechanics’ lien, the subject of the present controversy, was not filed until sometime after the property had been sold and conveyed to Mrs. Moorehead. Previously to the sale, Baird, the vendor, had settled with the plaintiffs, and given to them his note for the work done. Afterwards Baird became insolvent and his property passed, in due course, into the hands of an assignee. As this sale to Mrs. Moore-head seems not to have been made subject to this claim of these mechanics, a duty rested upon Baird to discharge it. The plaintiffs proved their claim before the register and received a dividend, but neglected to state, in their probate, as required by sect. 5077, of the Bankrupt Act, the fact that such claim was secured by a mechanics’ lien. It is now contended, on part of Mrs. Moorehead, who is the real defendant in interest, that the neglect above stated had the effect, under the decisions upon the section referred to, to waive the lien and relinquish it to the assignee. There is no doubt that this would be the result as to any estate of the bankrupt, which might be affected by that lien, in the hands of the assignee: Bump’s L. & Pr. Bk. 547. The question, however, naturally arises, can any one but the assignee take advantage of this forfeiture ? The design of the act was, that there should be a fair distribution of the estate of the bankrupt among his creditors; that the creditor having a lien should not have an undue advantage over those creditors who were not thus secured. This being “the intent of the law it would seem that if those interested in the distribution of the estate make no complaint, third parties, not being so interested, have no standing so to do. But Mrs. Moorehead is such third party. Her complaint is, not that she is put in a worse condition by the want of compliance with the Bankrupt Act on part of the plaintiffs, but that the estate is thereby affected to the detriment of creditors ; hence, a positive release of the lien is worked by the act. As, however, this would benefit, not the estate, but a third party not in interest, it cannot be the true rendering of the statute. And so it was held in Cook v. Farrington, 104 Mass. 212, that although proof, without release or conveyance, is contrary to law, it does not, nevertheless, of itself, operate to discharge a mortgage. It may, indeed, prevent the creditor from setting up the mortgage against the assignee, but the assignee alone can avail himself of the rights this provision is intended to secure. Third parties can derive no advantage therefrom. Again, the release of this lien can add nothing to the bankrupt estate, except that it might operate to discharge a claim which might eventually be proved against it by Mrs. Moorehead, but which having already been proved by the plaintiffs and the dividends received thereon having been passed to her credit puts that claim out of the question. On the other hand, an assignment of the lien to the assignee, would come to nothing, since he could not enforce it. It is manifest, that this case as it now stands is one in which neither the assignee nor creditors of Baird have the slightest interest, and we must, therefore, treat it as an ordinary-case of mechanics’ lien.

It was said in Hoyt v. Freel, 4 B. R. 131, cited in Bump’s L. & Pr. Bk. 547, that there is no provision in the Bankrupt Act, that the claim of a proving creditor against joint debtors with or without sureties for the bankrupt, shall bo assigned or given up by the creditor to the assignee ; that such a proposition would indeed be absurd, since the claim of the creditor against the surety is in no sense the property of the bankrupt. A creditor, who has proved a claim against the bankrupt’s estate, arising from a contract made by the bankrupt and certain others, as joint contractors, without stating, in his proof, that the same was in any manner secured, may, nevertheless, maintain an action upon such contract, against the other joint contractors. So, in the case in hand, there is nothing to assign which would either relieve the bankrupt estate by discharging an encumbrance upon it, or increase the amount of that estate by its sale. The property covered by the lien, occupies the place of a surety for the payment of the debt of the bankrupt, hence there is no reason why the plaintiffs should have set it forth in their proof, except that by its concealment they came in for a larger dividend on distribution of the bankrupt estate than they were entitled to. But as this wrought no injury to Mrs. Moorehead, but rather a benefit, she has no right to complain.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Paxson

text:
    Neely’s Appeal. Cozad’s Appeal.
    1. Equity follows the law, in relation to lapse of time, in analogy to the Statute of Limitations. _ ^
    _ ^ 2. In 1849 a court of equity in Pittsburgh made a decree that A. should deliver to B. certain plans and papers. B. remained in Pittsburgh for several years without making any effort to enforce compliance with this decree and in 1854 removed to another stale. A. died in 1865, and by his will bequeathed the use of the plans and papers to his brother C., who took possession of them, and in 1873 sold them to ii. So E. B. returned to Pittsburgh in 1871, and in 1874 filed a hill against the executor of 0., and also against D. So E., and sought to enforce the original deerec. It appeared that D. So E. had purchased the plans in good faith and for a valuable consideration. B. was also present when D. So E. were copying the plans and saw them hauled away for the purpose of being copied, and made no claim to them : Held, that the Statute of Limitations was a bar to the suit. Held, further, that B. was guilty of gross laches and had no standing in a, court of equity.
    November 2d 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeals from the decree of the Court of Common Pleas, No. 2, of Allegheny county : Of October and November Term 1877, Nos. 201 and 202.
    These were the appeals of Mary H. Neely, executrix of Condorcet McGowin, deceased, and of J. G. Thompson, M. E. Oozad and C. C. Oozad, partners as Oozad, Thompson & Co., from the decree of the court directing Cozad, Thompson & Co. to pay to Z. W. Remington the balance of money in their hands, on the purchase of certain papers and instruments from C. McGowin, and further ordering that the costs of the proceedings, out of which the decree arose, should be paid by the estate of said C. McGowin, deceased.
    The proceedings were by bill in equity filed by Z. W. Remington, against the ap]3ellants in each of the above appeals, and prayed the court .to decree the return to complainant of certain plans, maps, drafts, furniture and surveying instruments which one R. E. McGowin had obtained and retained in his possession.
    The remaining material facts will be found in the opinion of this court.

      John M. Kennedy, James C. Doty and James Grier, for appel lants.
    — The complainant contends that a decree was made in his favor against R. E. McGowin in 1849; that R. E. McGowin died in 1865; that Condorcet McGowin then came into possession of the plans not delivered by R. E. McGowin in compliance with said decree ; that Condorcet McGowin sold these plans, December 19th 1873, to Cozard, Thompson & Co., who had them when his bill was filed in 1874. Under these facts was not complainant barred ?
    The Statute of Limitations is applied with the same effect in a court of equity as in a court of law: Hamilton v. Hamilton, 6 Harris 20; Todd’s Appeal, 12 Id. 42; Smilie v. Biffle, 2 Barr 53; Story Eq. Jur., sect. 529; Brightly’s Eq. Jur., sect. 647.
    The plaintiff was guilty of gross laches in allowing R. E. Mc-Gowin and Condorcet McGowin to retain all the indicia of ownership for so long a time, and is thereby barred from making any claim. Equity will not grant relief where a party has been guilty of laches.

      James Fitzsimmons, for appellee.
    — The gist of the action was the specific delivery of the plans, maps and papers. The decree was entered, but the delivery of the property was not enforced under the decree; hence the old proceedings must be considered as Us pendens and notice to all: Yeavery v. Yerverly, 3 Ch. Rep. 48; Gaskell v. Durdin, 2 Ball & B. 169; Diamond v. Lawrence County, 1 Wright 353; Fessler’s Appeal, 25 P. F. Smith 502; Kerr v. Watts, 6 Wheat. 550; Haughwout v. Murphy, 7 C. E. Green 531, 544; Adams’ Eq. 157; Bispham’s Eq. 267. “A decree by consent in a personal estate binds a purchaser for a valuable consideration.” Windham v. Windham, 3 Ch. Rep. 22; s. c. 2 Freem. 127. Courts of equity will not apply the Statute of Limitations to a demand purely of an equitable nature: Singleton v. Moore, Rice Ch. Rep. 110; Stedwell v. Anderson, 21 Conn. 142; Chapman v. Butler, 22 Maine 191; Bland v. Davison, 21 Beav. 312.
   Mr. Justice Paxson

delivered the opinion of the court, November 19th 1877.

This is a stale claim. On the 6th day of September 1847, Z. W. Remington filed his bill of complaint against R. E. McGowin, setting forth that the said McGowin, then a practising surveyor and civil engineer, had obtained from complainant a large number of plans, papers, drafts, surveying instruments and furniture, as set forth specifically and at length on the record in said case; that the said McGowin was making copies of said plans, &c., and that ho retained possession and refused to deliver the same to the complainant, to whom they rightfully belonged, and praying the court to order and decree the return and delivery of said plans, &c., to plaintiff. The cause was so proceeded in, that on the 13th day of January 1849, the court made a decree that the said McGowin should deliver the papers, maps, plans, &c., to the master for the purpose of having the same delivered to the complainant. It is now alleged that the papers were never delivered in accordance with this decree. Remington remained in Pittsburgh for several years after the termination of his case, making little effort to enforce compliance with the decree, and removed to Iowa in 1854, where he resided until 1871, and then returned to Pittsburgh. On the 5th day of June 1874 this bill was filed against Mary II. Neely, executrix of Condorcet McGowin, deceased, and J. G. Thompson, M. E. Cozad, and C. C. Cozad, copartners as Cozad, Thompson & Co., setting forth the former decree in the suit against McGowin; that said decree has never been fully complied with; that R. E. McGowin died possessed of that part of the property not delivered, leaving the said Condorcet McGowin, his brother, in possession ; that Condorcet McGowin sold or in some way disposed of said property to said Cozad, Thompson & Co., and that the same is still in their possession. The complainant attempts to account for the extraordinary delay in enforcing the decree in Remington v. McGowin by alleging that the records of said case were lost or stolen from the office of the prothonotary, involving, as he was advised and believed the commencing of his suit de novo. But it appears that the proceedings wrnre spread at length upon the records, so that if the fact be that the papers filed in the cause were lost, the cause could have been proceeded in so far as regards the enforcing of the decree, which was all that remained to be done. The master finds that Cozad, Thompson & Co. purchased the plans in good faith for a valuable consideration, and without notice of any adverse claim. Also, that the plaintiff was guilty of gross laches in allowing R. E. McGowin and Condorcet McGowin to retain all the evidence of ownership for so long a time, and is thereby barred from making any claim. We think the facts of the case fully justify the findings of the master. This is not a proceeding against R. E. McGowin. It is an attempt to enforce the original decree against him by following the property after his death in the hands of innocent third parties. Were R. E. McGowin living and in possession of the property the decree might possibly be enforced against him, as the master finds there is sufficient evidence to overthrow the presumption arising from lapse of time that the original decree had been complied with. But R. E. McGowin died in 1865; by his will he bequeathed the use of his surveying instruments, drafts, &c., to his brother, Condorcet McGowin, who took possession of the plans, drafts, &c., and in 1873 sold the same to Cozad, Thompson & Co. The master finds that “ the plaintiff was present at the office of Condorcet Mc-Gowin when- Cozad, Thompson & Co. were making copies of some of the plans which he now claims. He then made no claim. He was afterwards present when Cozad, Thompson & Co. hauled them away. He asked Condorcet McGowin -what this meant, and was told that they were hauling them away for convenience in copying. He made no claim to the plans, and did not object to their being taken away. All the circumstances indicated that Condorcet McGowin was the owner of the plans, and there was nothing in the conduct of the plaintiff to lead the purchaser to think otherwise.

The appellants set up the Statute of Limitations as a defence, and the learned master held it to be a bar to this suit. In this we think he was right. In relation to lapse of time equity follows the analogy of the Statute of Limitations: Story’s Equity, sect. 529; Todd’s Appeal, 12 Harris 429; Ashhurst’s Appeal, 10 P. E. Smith 290. But laches for a much shorter time than six years, aided by other circumstances, will bar the right: Evans’s Appeal, 31 P. E. Smith 278. Here the plaintiff has been guilty of gross laches. When he filed this bill, the original decree which he thus sought to enforce, had been of record for twenty-five years ; R. E. McGowin had been dead nine years, and the property in dispute had passed into the hands of other parties in entire good faith. The plaintiff saw a portion of it in their possession, and made no claim to it until after a bona fide sale to an innocent purchaser. It surely needs no argument to show that he has no standing in a court of equity.

The decree is reversed, and the bill dismissed with costs, to be paid by the appellees.


author: Mr. Justice Mercur,

text:
    The Safe Deposit Company of Pittsburgh versus Pollock.
    A safe deposit company contracted with a depositor to “ keep a constant and adequate guard over and upon the safe” rented by him. A number of bonds deposited therein wore found to he missing: Held, that the company was hound to make some explanation for the absence of the bonds. Held, further, that the question whether the company was guilty of negligence was properly left to the jury.
    November 3d 1877.
    Before Agnew, C. J., Sharswood, Mbrcur, Gordon, Woodward and Sterrett, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1877, No. 194.
    Case by A. M. Pollock, against the Safe Deposit Company of Pittsburgh, to recover the value of four United States bonds, which plaintiff alleged were lost through the negligence of defendant.
    The facts are fully stated in the opinion of the court.
    At the trial, before Collier, J., the defendant requested the court to charge the jury that the burthen of proving the negligence, which the plaintiff charges against the defendant, is upon the plaintiff]; and the evidence, that upon January 27th 1875, the plaintiff, upon unlocking the safe, rented and used by him in the burglar-proof vault of the defendant, and examining its contents, discovered that part of his bonds were missing therefrom, does not of itself establish such negligence in the defendant, although the defendant is unable to account for the alleged loss or how it happened.”
    The court answered; “ The part in brackets is affirmed, the rest is refused.”
    In their general charge the court said:—
    “ The defendant can only be held liable for want of ordinary care, and if you think, from all the evidence in the case, that the defendant exercised such care as ordinarily vigilant, prudent people would exorcise under the same or similar circumstances about their own affairs, then they have done all the law required under the contract in this case; hut they are bound to do that. They were bound to use, in the language of the law, ordinary care and diligence; and that is such care, diligence and vigilance as ordinarily careful and prudent persons would exercise in their own concerns in similar circumstances. You must remember the public character of this institution, what it pretends to do, what it offers to do, what its responsibilities were under its contract.
    [“ So, we instruct you, first, that if you believe that the bonds were not in the box; that the doctor is honestly mistaken; that he might have dropped them on the counter when he was examining them, or carried them away and forgotten them, or in any other w^y they were kept out of the box, then the plaintiff is not entitled to recover. But if the bonds were in the box, as alleged; if the doctor is not mistaken; if the bonds were in the box, and they were missing under the circumstances as detailed by the plaintiff, he had a right then to call on the defendant for an explanation.”]
    The verdict was for the plaintiff for $4154.12, and after judgment the defendant took this writ, assigning for error, inter alia, the answer to the foregoing point, and the portions of the charge above noted in brackets.

      M. W. Acheson and J. S. & A. P. Morrison, for plaintiff in error.
    — The defendant was not, properly speaking, a depositary. The plaintiff’s bonds were not delivered to or received by the company’s employees or agents. The defendant never had actual possession of the bonds. Therefore it was error to charge that the plaintiff 'had a right to call upon the defendant for an explanation of how the loss occurred.
    Evidence that the goods are missing, that they are not on hand when called for, does not of itself establish negligence in the bailee: Gilbart v. Dale, 5 Ad. & E. 543; Midland Railway Co. v. Bromley, 33 Eng. Law and Eq. 235; 17 C. B. 372; Harris v. Packwood, 3 Taunt. 267; Marsh v. Horne, 5 B. & C. 322, 327.
    With certain exceptions as to innkeepers and common carriers, the burden of proof of negligence is on the bailor, and proof merely of the loss is not sufficient to put the bailee on his defence: Farnham v. Camden & Amboy Railroad Co., 5 P. F. Smith 53. The ease of Finucane v. Small, 1 Esp. R. 315, is analogous to this case.

      Thomas M. Marshall, John H. Baily and Christopher Magee, for defendant in error.
    — ETo express contract was shown in the case of Finucane v. Small, cited by the plaintiff in error.
    The question of negligence was properly left to the jury.
   Mr. Justice Mercur,

delivered the opinion of the court, January 7th 1878.

This action was brought against the plaintiff in error to recover for the loss of some government bonds. Its general business is indicated by its name. It took two classes of risks; in one class it became the absolute guarantor of the safety of the deposit; in the other its liability was qualified. and restricted. The present case arose under the latter class. The defendant in error rented a safe in the burglar-proof vault of the company, subject, inter alia, to the following rules and regulations:

“ Whenever a party rents a safe, and deposits therein at pleasure, contents not being made known to the company, its liability is limited.

“1. To the keeping of a constant and adequate guard and watch over and upon the burglar-proof safe.

“ 2. To the prevention of access by any renter to the safe of any other renter.

“ 3. To the protection of safes and contents from any dishonesty on the part of any of the company’s employees.”

He renewed the lease annually several times and paid the required rent. The safe is closed by an iron door, to which a lock is attached. The valuables are placed in a tin box, made to fit into the safe like a drawer. In this box and safe he placed several thousand dollars in government bonds, and had the exclusive possession of the keys to the safe.

As the interest fell due on the bonds, he took them out, cut the coupons therefrom, and replaced them in the safe and locked it again. Finally, on taking out the envelope containing the bonds, for the same purpose, he discovered that four bonds, two of $1000 each, and two of $500 each, had disappeared therefrom. The jury have found that ho put them in the safe and did not remove them therefrom.

There was no evidence that the vault or the safe had been broken nor that the lock had been tampered with. These facts being unquestioned, and the bonds having been taken from the sáfe, it necessarily follows that it had been opened with a key suited to the lock. In order to get access to the safe a person would be obliged to step into the vault. If he entered during business hours one key would enable him to procure the bonds. If at other hours it would require two keys to reach them from the office. The fact that the bonds were taken under these circumstances, was certainly some evidence that the company had not kept “ a constant and adequate guard and watch over and upon the safe,” as by its agreement it was bound to do. It further agreed to prevent the access of any other renter to the safe of the defendant in error, and to protect his safe, and its contents from any dishonesty of the company’s employees. If any third persons were given access to the vault under circumstances that would have enabled them to unlock the safe and remove the bonds, and they had so done, although a contingency not provided for in the agreement, yet it cannot be pretended that it would not be evidence of a want of ordinary care. So if the bonds were purloined by either renter or employee it was certainly evidence to go to the jury of an omission on the part of the company to exercise that ordinary care and vigilance which men ordinarily exercise and ought to exercise under such circumstances in the protection of their own property. The vault and the safe were in the possession and under the protection of the company. The manner in which the bonds were most probably taken, shifted the burden of proof. It threw upon the company the necessity of making some explanation to rebut its prima facie negligence. The case is not like Finucane v. Small, 1 Espinasse’s Rep. 315, in which there was no express agreement as to the care to he exercised. Nor is it like Farnham v. Camden and Amboy Railroad Co., 5 P. F. Smith 53, where it was held that proof merely of loss was not sufficient to put the bailee on his defence. The evidence in the present case of the defendant in error did not stop with merely showing the loss. It showed the bonds had been abstracted by some one entering the vault, and' opening the safe by means of a key. The presumption of want of ordinary care was thereby created. All the evidence calculated to rebut that presumption was fairly left to the jury by the learned judge.

The other assignments have no merit, and were not urged in the argument. • Judgment affirmed.


author: Mr. Justice Gordon

text:
    United States Building and Loan Association versus Silverman.
    A stockholder of a building association incorporated under the provisions of the Act of 12th of April 1859, gave the required notice of his intention to withdraw from said association. The association failing to refund the money he had put in, he brought áuit therefor. It was provided in the Act that at no time should more than one-half of the funds in the treasury of the corporation be applied to the demands of withdrawing stockholders. In an affidavit of defence the association averred that fifty per cent, of its funds had already been so applied, and that owing to the depreciation of real estate it had sustained heavy losses and incurred debts which should be paid before stockholders were permitted to withdraw. Held, that the withdrawing stockholder was not estopped by the proviso from legal process for the recovery of his money, until the treasury had funds sufficient to meet his claim. Held, further, that said affidavit was insufficient, inasmuch as it did not aver that the losses and debt were incurred before plaintiff’s withdrawal. ■
    November 5th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Woodward and Sterrett, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county; Of October and November Term 1877, No. 13.
    Assumpsit by Henry Silverman, against the United States Building and Loan Association of Pittsburgh. About the 10th of September 1872, Silverman subscribed for sixteen shares of the defendant association. He paid his dues regularly, and on the 6th of April 1875, had paid in upon his stock the sum of $640, being $40 per share. He was not at this time in arrears for any dties, owed no fines, and had borrowed no money. On that day he gave notice to the association of his intention to withdraw, in accordance with the provisions of the Act of April 12th 1859, Purd. Dig. 183, under which the association was incorporated, among which were these : “ Every share of stock shall be subject to a lien for the payment of unpaid instalments, and other charges incurred thereon, under the provisions of the charter and by-laws, and the by-laws may prescribe the form and manner of enforcing such lien. * * * And any stockholder wishing to withdraw from the said corporation, shall have power to do so, by giving thirty days’ notice of his or her intention to withdraw, when he or she shall be entitled to receive the amount paid in by him or her, and such proportion of the profits as the by-laws may determine, less all fines and other charges. Provided, That at no time shall more than one-half of the funds in the treasury of the corporation be applicable to the demands of withdrawing stockholders, without the consent of the board of directors.”
    The by-law of the association, as sot forth in the affidavit of claim, and under which the defendant in error gave notice of withdrawal, is drawn expressly under the provisions of the act, and is as follows:—
    “ Any stockholder may withdraw from the association thirty days after having given written notice, at a regular meeting, of his or her intention so to do; and shall be entitled to receive all instalments that have been paid in by him or her, together with five per cent, of the profits thereon, less initiation fee, any fines that may be due, and his or her proportionate share of any losses that may have been sustained by the association.”
    Plaintiff failing to receive the money due him, in 1876 brought this suit.
    The association filed an affidavit of defence, which set forth that this was not the proper form of action, but it should be in the form of a bill in equity; that a by-law of the association provided that, “at no time shall more than one-half of the money in the treasury be applicable to the demand of withdrawing stockholders, unless by a two-third vote of the board of managers that no order of the board has been made ; that fifty per cent, has been applied and paid to the withdrawing stockholders, in the order in which they gave notice, and plaintiff has not been reached; that the provision of the by-laws is that there should be deducted from the amount paid in by plaintiff, his proportionate share of the losses sustained by the association; that the association, by reason of depreciation in real estate and securities, has sustained heavy losses, which losses are estimated to bo at least $46,702.14, and may be much more, and would doubtless be more, if the property was forced on the market and sold for cash, and that it is impossible to ascertain such losses until the property is sold; that the association has incurred an indebtedness for land purchased, and there is a balance due thereon of $18,700, with interest from August 1st 1875, and that such debt should be paid before stockholders are permitted to withdraw.
    A rule for judgment, for want of a sufficient affidavit of defence, was taken by plaintiff, and tbe court entered judgment for him for the full amount of his claim. This entry was the error assigned.

      J. S. White and James S. Young, for plaintiff in error.

      A. M. Brown and John S. Lambie, for defendant in error.
   Mr. Justice Gordon

delivered the opinion of the court, November 12th 1877.

Had the affidavit of defence filed in this case set forth losses incurred by the association, whether resulting from the depreciation of its property or otherwise, occurring before the time of the plaintiff’s withdrawal, no doubt a proper set-off to the claim in suit would have been exhibited; herein, however, is the material defect in that it does not state that such losses did happen before the withdrawal. On trial, without such showing, the defence would clearly amount to nothing, for the plaintiff could not be charged with losses which occurred after he ceased to be a member of the company, and we must take it for granted that what a defendant cannot state in his affidavit of defence he cannot prove in court. A like defect is found in the allegation concerning the indebtedness of the company contracted in the purchase of lands, for neither is it stated when that indebtedness arose nor for what purpose the lands were bought. Then, with regard to the statement that there was no money in the treasury to meet the plaintiff’s claim, this also is open to the objection that is, at best, only inferentially that we can learn that this deficit occurred before Silverman withdrew. It is said that the board of managers never authorized the appropriation of more than fifty per cent, of the money in the treasury, to the payment of withdrawing stockholders, and that the full amount required by the statute had been applied to the liquidation of the claims of such stockholders, in the order of their withdrawal, and the plaintiff had not been reached. We may infer, from all this, that, at the time Silverman withdrew there was no money in the treasury which could properly be appropriated to the liquidation of his claim either in whole or in part. But why could not this have been positively stated and thus have prevented the necessity of mere inference ? Giving, however, this part of the affidavit the full force of a positive statement, is it a good defence made out? We think not. The Act of April 12th 1849, Pamph. L. 544, provides : “ That any stockholder wishing to withdraw from the said corporation, shall have power to do so, by giving thirty days’ notice of his or her intention to withdraw, when he or she shall be entitled to receive the amount paid in by him or her, and such proportion of the profits as the bylaws may determine, less all fines and other charges; Provided, that at no time shall more than one-half of the funds in the treasury of tho corporation be applied to the demands of withdrawing stockholders without the consent of the board or directors.”

It will be seen from the above, that after thirty days’ notice tho membership of the stockholder is determined, and he becomes a creditor of the corporation to the amount he has paid, less fines and charges. That he may, upon the refusal of the company to pay him, sue it, and recover judgment, just as any other creditor, is not doubtful. It is urged, however, that he is estopped by the proviso, from legal process, for the recovery of his money, until the treasury has funds sufficient to meet his claim. If this be the true interpretation of the statute, then is this creditor in a most unfortunate position ; for the corporation may never choose to make the necessary provision for such purpose, and therefore he can never have process to compel it so to do.

It is a fact now alleged that this company has no money to apply to the claim in suit. When will it have ? in one, six or ten years, or ever ? And will the Statute of Limitations be suspended in the meantime? To these questions the defendant but answers : the proviso interposes to prevent the plaintiff from all compulsory process, though his claim is recognised, in the body of tho statute, as just and proper, as long as the corporation manages to maintain an empty treasury, or, what is the same thing, as long as prior drafts leave no money to be applied to his debt.

Looking at the statute as a whole, we are not prepared to adopt an interpretation so contrary to its spirit and the plain dictates of justice. Whilst it is certainly intended that the operations of the corporation shall not be embarrassed by having the whole amount of its cash assets taken, in order at once to pay withdrawing stockholders, yet it as certainly does not intend that no provision shall be made for their payment, and that they may be indefinitely postponed, even from judgment, by a plea of quasi insolvency.

We think the design of the act can be better met by giving the plaintiff judgment, and then, should it seem equitable to the court below, it may restrain execution, in order that the defendant may have a reasonable time within which to raise the money for the payment of such judgment, so that there may be no undue derangement of its affairs.

Judgment affirmed.


text:
    Bedell’s Appeal.
    Administrators may be allowed commissions for adjusting a balance, but commissions on credit or set-off is not the proper measure of compensation, especially if one of the administrators is a debtor.
    November 5th 1877.
    Before Agnew, C. J., Sharswood, Mercor, Gordon', Woodward and Sterrbtt, JJ. Paxson, J., absent.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1877, No. 211.
    This was the appeal of A. W. and William Bedell, administrators of Andrew Bedell, Sr., deceased, from the decree of the court on the exceptions filed to the account of said administrators.
    In their account, the inventory amounted to $6527.60,which, with an increase in the sale over the appraisement of $220.91 and interest collected on note $36.92 made up the debit side. The credit side was made up of some sixty disbursements, and showed a balance in the hands of the accountants of $352.32. Among these items on the credit side was a bond of Joel Bedell for $2834.83. As Joel Bedell was insolvent, they claimed credit for this amount as not collectable. Joel Bedell claimed, however, that it was paid and that he had the mortgage securing its payment receipted by his father, Andrew Bedell, Sr.
    In the inventory was also included the balance of a mortgage of A. W. Bedell to Andrew Bedell, Sr., dated June 20th 1867, for $4000, in four equal annual payments from April 1st 1867, with interest, on which had been paid, April 1st 1869, to the decedent $3400, which was receipted on the mortgage. The mortgagor had paid to divers persons, moneys for the decedent in his lifetime, and held the receipts for the same, but they had never been credited on the mortgage. These credits, the other administrator, on the 3d of April 1875, receipted on the mortgage as of their proper dates. They amounted in all, leaving out the $3400 receipted on mortgage, and receipt for $100 of interest paid, to the sum of $310.76 ; this left still a balance of said mortgage unpaid. On August 20th 1875, after decedent’s death and letters of administration, the mortgagor paid to Charles Percival $1180, the amount due him by Andrew Bedell, Sr., his former guardian; of this sum, $903.23 was applied to paying the residue of said mortgage, which was then satisfied by the co-administrator and the balance applied to a note of A. W. Bedell.
    The accountants also claimed as a credit for their entire services the sum of $339.27, being five per cent, on the debit side of their« account.
    The accountants paid all the debts of decedent except the claim of his son-in-law, James McKown, with respect to which the following facts were disclosed: About September 1st 1871, McKown became, with his family, an inmate of the house of Andrew Bedell, under an agreement that he should receive $300 per year and boarding for the services of himself and wife, in taking care of Mr. and Mrs. Bedell and the house, and when not employed in the house, Mr. McKown was to assist on the farm. He remained there until after the death of Mr. Bedell, without any new contract having been made. He now claimed for extra services in nursing Mr. Be-dell, who required more and more attention, and towards the last had to be assisted in and out of bed frequently, day and night. The greater part of the attendance was given by Mrs. Bedell and Mr. and Mrs. McKown, who were at times assisted by neighbors. The mind of Mr. Bedell had become enfeebled for some time before his death, and his sickness was of a very extraordinary character. The services which Mr. and Mrs. McKown were required to perform in nursing, were not such as could have been anticipated when they made the original arrangements to take care of Mr. and Mrs. Bedell. Mr. McKown could not have made a new arrangement, owing to the mental condition of Mr. Bedell, and it would have been inhuman, under the circumstances, to have left with his family. JDr. Shaffer testified that he would not have done the nursing for $3 per day during the year he attended Mr. Bedell; and the five months which followed must have been still more difficult.
    The administrators also paid $550 for gravestones for the deceased, for which they claimed credit as part of the funeral expenses. They also paid McKown $50 on account of his claim.
    McKown and Joel Bedell filed exceptions to this account and in passing upon it the court disallowed the five per cent, commissions on Joel Bedell’s bon'd, on the ground that the evidence showed it had been satisfied in the lifetime of Andrew Bedell. They also disallowed the commissions on the $310.76 and $903.23, receipted on the mortgage, for the reason that they were not proper subjects of charge and discharge in the administration account, thus surcharging the accountants on their claim of $339.27 for services, the sum of $202.63, leaving them for said services $136.54. They also surcharged the administrators, $160.93 on the $550 paid for gravestones as a preferred debt, and $14.64 on $50 paid McKown on his claim, and made a decree accordingly.
    Prom this decree the administrators took this appeal, assigning for error the action of the court in the several particulars above mentioned.

      R. & S. Woods, for appellants.

      John H. Kerr, for appellee
   Mr. Justice Sterrett

delivered the opinion of the court, January 7th 1878.

The first assignment is, that “ the court erred in not allowing the administrators the sum of $339.27, which they claimed for their whole services, and in reducing the same to $136.54.” In their account, the appellants made no claim for compensation or services, as such. They claimed “ credit for their commissions on the debit side of their account, five per cent, on $6783.43.” This sum included the bond of Joel Bedell $2834.83, for which they took credit as uncollected, for the reason that the obligor was insolvent. The court, however, found that the bond had been paid in the lifetime of the intestate. It also included payments made by A. W. Bedell, one of the appellants, on his own mortgage, during the lifetime of his father, amounting to $1213.90. These payments were credited after his father’s death and fully satisfied the mortgage. The learned judge of the Orphans’ Court refused to allow the commissions claimed on these two sums, because, as he says, “ the former was not administered at all, and the latter were not legitimate subjects of charge and discharge in the administration account;” and then he adds, “ administrators may be allowed for adjusting a balance, but commissions on credit or set-off is not the proper measure of compensation, and especially is this so when one of the administrators is the debtor, as in the present case.” The court was clearly right in reducing the amount on which commissions were charged. There was no claim for adjusting balances, or for compensation generally, nor does it appear to us that there would have been just ground for allowing any in addition to the commissions on all the items that were proper subjects of charge and discharge in the account. The debit side of the account is composed of but two items in addition to the aggregate amount of the inventory; and a large portion of the credit side of the account .is made up of the items of credit which were applied to the satisfaction of the mortgage, and to the note of one of the appellants.

The balance of James McKown’s bill was properly allowed. The evidence before the court was quite sufficient to sustain his claim.

The third and fourth assignments relate to the distribution of the balance, ascertained to he in the hands of the accountants, or rather the amount that should have been in their hands for distribution. They had paid general creditors of the estate, in full, to the amount of $903.40 and $50 to James McKown on account of his claim. McKown was the only claimant on the fund for distribution, and inasmuch as there was not sufficient actually in the hands of the accountants to pay him in full, he was entitled to his distributive share of the whole fund, including that which had been paid out. In order to give him this, it was necessary to ascertain the per centum that each creditor would have been entitled to receive, if none of them had been paid, and charge the accountants with the excess paid to creditors over their pro rata shares. The principle on which this was done was entirely correct, but the clerk, by mistake, included in Ms schedule of surcharges, the excess on the §50 paid to McKown. The effect of this was to give Mm the $50 entire and Ms pro rata on the residue of his claim, when he is only-entitled to a dividend on the whole. This dividend, after deducting the §50 paid on account, is found to be $797.09.

While for the purposes of distribution, the accountants are surcharged with the amount paid by them to creditors, in excess of their pro rata share, they will be entitled to take credit for this amount, viz., $272.14 in their next account.

By correcting the slight error already noticed, the amount found to be in the hands of the accountants applicable to costs and to the claim of James McKown, is as follows, viz.:

Balance, as per account filed .... $352.82

Commissions disallowed and surcharged . . 202.63

Over payments to creditors .... 272.14

Making in all 827.09

Deduct costs, clerk of Orphans’ Court $12

do. Supreme Court 18 30.00

. $797.09 Balance, payable to James McKown

With the foregoing correction and modification the decree of the Orphans’ Court is affirmed and the appeals dismissed, and it is ordered that the costs, as above deducted, be paid by the appellants out of the funds in their hands.