author: Sterrett, J.

text:
    October and November Term, 1881,
    No. 318.
    Egbert versus Payne.
    1. In a feigned issue to determine the ownership of moneys deposited in bank to the credit of plaintiff eleven years before suit, defendant proved that the deposit slip was in his handwriting, that at the time of the deposit plaintiff was his business agent, that he, defendant, deposited moneys to the credit of plaintiff to be used in defendant’s business, and that after this deposit there was a discrepancy in his account with plaintiff of about the amount of the slip which could not be found. Neither party remembered the transaction. The accounts between them had been settled long before. Upon the discovery of the credit, plaintiff'wrote to defendant: “The probabilities are that you deposited it to save bringing the moneys home or for some specific purpose and reported to me, and I have forgotten to draw it out.” The Court charged, inter alia: “If he (defendant) gave it to Payne (plaintiff) for any illegal or improper purpose it would be an executed gift, and lie could not take it back.” Held, there being no evidence of an improper purpose or of gift that this was error.
    2. The Court further charged the jury: “ Was it deposited for a specific purpose ? to wit, in the name of N. H. Payne, to be used in the business of Egbert, or Egbert & Brown, by Payne, as their agent? If not, then it would seem to' be a gift, in some mysterious way, to this plaintiff. There is no evidence of a specific purpose for which this was deposited, because there is no evidence upon either side, whether for a specific or general purpose.” jSeld, that it was error, being a virtual withdrawal of the case from the jury.
    3. Defendant asked the Court to charge the jury that if they believed that the defendant deposited the money in dispute to the credit of the plaintiff as the agent of defendant for the purpose of having the money placed to defendant’s credit in his account with plaintiff, and the money was never used for the purpose for which it was deposited, or in any other way for the benefit of defendant, then the money belongs to defendant. Held, that it ought to have been affirmed without qualification.
    Error to the Court of Common P eas of Crawford County.

    Feigned issue, wherein N. H. Payne was plaintiff and M. C. Egbert defendant, to determine to which of said parties a deposit of $1888.12 in the Second National Bank of Titus-ville belonged.
    On the trial in the Court below, before Church, P. J., the following facts appeared:
    For some years prior to 1870 M. O. Egbert, the defendant, and the firm of Egbert & Brown, of which he was a member, were extensively engaged in the business of producing and shipping oil. The principal office of the firm was in New York, but they did business along Oil Creek, and at Pittsburgh, and in Philadelphia. N. H. Payne, the plaintiff', as agent for Egbert and Egbert & Brown had almost exclusive charge of their business along Oil Creek. Large sums of money were from time to time deposited by them to his credit in the banks at Titusville and. at other places in the oil country, and he drew on them personally as he required money, usually for $5000 at a time. He sent them balance-sheets every month, which were vii’tual settlements of the accounts, crediting them with the money received and charging them with that expended. There -was a final settlement between them in August, 1870. About that time Payne, according to his own testimony, was worth four or five thousand dollars, and had something convertible into money, besides a farm and some interests in wells.
    In the fall of 1880 the cashier of the Second National Bank of Titusville called the attention of Payne to the fact that there was a credit on the books of the bank of $1883.12 to P. H. Payne. Upon investigation the following deposit slip upon which the credit had been given was found:
    “ Deposited in the Second National Bank by N. H. Payne, Titusville, Pa., January 28th, 1870, current, 1883.12.”
    By mistake it had been entered to the credit of P. II. Payne instead of N. H. Payne. The slip was in the handwriting of the defendant, Egbert. The cashier testified: “We both concluded then that the writing on the slip was. Dr. Egbert’s. He (Payne) did not recall the circumstances under which the deposit was made when I showed him the slip. lie did not know anything about it and said it must have been a deposit the doctor had made for him which he had overlooked. I told him there was no question but that the deposit had been intended for N. II. Payne, and we would at once correct it on the books. He then said he supposed he could check against or draw it at any time. I told him that as he had no recollection as to the transaction, and as we both had concluded that the writing on the slip was Dr. Egbert’s, that before we paid it, it would perhaps be better to write to Dr. Egbert and see if he had any recollection of it.”
    Thereupon plaintiff wrote to defendant, and received a reply, which Letters were as follows :
    “Franklin, Pa., October 8th, 1880.
    “ Dr. M. C. Egbert.
    “ Dear Sir : I was at Titusville yesterday; saw G-. C. Hyde, of 2d National Bank. He says to me, you have a balance in bank here, which has been here a long time. On investigation I find that there was deposited to the credit of N. II. Payne, Januai'y 29th, 1870, $1883.12, which was never drawn out. On reference to the deposit slip I think the N. Ii. Payne is in your handwriting. I am unable thus far to find my old book of that date to show how it came to be overlooked. The probabilities are that you deposited it to save bringing the money home, or for some specific purpose, and reported to me, and 1 have forgotten to draw it out. One thing, however, is certain, I accounted to Egbert & Brown for all money received from them, so there is no possibility of them having auy claim on it. Egbert & Brown’s account on their bank books is settled and closed.
    “ Hyde said no other person could draw this but myself, and he could not refuse my check, but asked as a favor that I would leave it until he was sure there was no mistake about it.
    “ I wish you would write me stating that auy money deposited by you to my credit in their bank was my property.
    “ Very respectfully, N. H. Payne.
    “ P. S. — I see by a memoranda that you left for New York, January 13th, a few days before the deposit, but you had time to have returned before the 29th.”
    “October 9th, 1880.
    “ N. II. Payne, Franklin, Pa.
    “Dear Sir: Your letter of 8th inst. is received. I am glad to learn of the discovery of the deposit at the First National Bank of Titusville.

      “ But I think you will be satisfied, on reflection and a careful examination of the accounts between us, that I am the one entitled to the balance, for it is far more likely under the circumstances then existing, I having a large business and accounts, scattered in various directions, involving large amounts, and dependent on others for the keeping of these accounts, that I would overlook such an item, than that you, whose transactions were smaller and almost wholly personal, would overlook such an amount due to you. Besides this I have quite a distinct recollection that at one time in settling our accounts there was an apparent deficiency of about this sum in the amount which I ought to have, and that the account was settled by me with that apparent disadvantage. You certainly have never had any reason to suppose that I was owing you such an amount as -would have been the case, if the amount had been charged to you as a payment from me. But there will be no difficulty in determining to whom this belongs, as the books will show for themselves. If it shall appear to be yours I will cheerfully join in an order for its payment to you, and I will expect you to do the same in my behalf if the facts so require. In the meantime I think it proper that the balance be allowed to remain in bank until we can ascertain the facts, and have written the bank to that effect. Respectfully, yours,
    “ M. C. Esbert.”
    Neither plaintiff nor defendant had any recollection of the transaction and it did not appear in the accounts.
    The defendant testified, inter alia:

    “ 2. Question. Bid you ever deposit money to his credit ?
    “ Answer. Oh, yes.
    “ Q. For what purpose would you deposit money to his credit ?
    “ A. Either to be used in my business individually, or in the business of Egbert & Brown ; in either case, if it was used for me, I tools credit for it; if used in the business of Egbert & Brown, I was credited for it, and Egbert & Brown was charged with it.
    * * * * * *
    “ Q. I wish you to state what this money was deposited for by you to the credit of Mr. Payne — for what purpose ?

      “Plaintiff’s counsel. INat question assumes it was deposited by him for a pui’pose.
    “ By the Court. Bid he deposit $1883.12 to the credit of Payne ?
    “ Defendant's counsel. Q, And for what purpose was it deposited ?

      “ Witness. I can only give my idea of it to the best of my knowledge; I have no doubt in my mind that I deposited that money.
    “ Plaintiff’s counsel object,

    “ Defendant’s counsel. Q. You need not give the workings of your mind — for what purpose was it ?
    “ Witness. It was deposited for the purpose of Mr. Payne using in my business individually, or, possibly to be used in the business of Egbert & Brown; in either case I would have taken credit for it had he got it.
    “ Q. Have you seen this deposit slip since ?
    “ A. I have.
    “ Q. Did you deposit the money ?
    “ A. I have no doubt of it.
    “ Q. I wish you to state if you ever deposited money for Mr. Payne for his own individual purposes ?
    “ A. I never did.
    “ Q. Or his own individual use ?
    “ A. I never did; I have no knowledge of anything of the kind.
    “ Q. Were you in debt to Payne at the time ?
    “ A. No, sir, I was not; that is, there may have been a running account at times; he may have paid out some money of Egbert & Brown for M. C. Egbert, or he may have used money of M. C. Egbert for Egbert & Brown.
    * * * * * *
    “ Q. I wish, at the time of the settlement with Mr. Payne of your individual accounts with him as agent, the first settlement following this January transaction, what occurred, if there was any money missing belonging to yourself, and what was said.about it at the time, between you and Mr. Payne ?
    “ Witness. My first individual settlement with Mr, Payne, after this money had been deposited there. My individual account with Mr. Payne was short $2000, or about $2000, as near as I can remember now.
    “ Q. Explain what “you mean by short ?
    “ A. I mean $2000 less in Payne’s hands to settle up my expenses than I supposed he had.
    “ Q. Did you and Mr. Payne make an examination for that deficiency ?
    “A. We did; we hunted over the accounts, all the forepart of one night, to find where the discrepancy was, and we could not find it.”
    The plaintiff testified that he sometimes advanced money for Egbert & Brown. On cross-examination he said, inter alia:

      “Q. Whatever money you received from Dr. Egbert was to be used by you either in his business or in the business of Egbert & Brown, was it not ?
    “A. Whatever money I received from Dr. Egbert?
    • “ Q. Was to be used either in his business or the business of Egbert & Brown?
    “ Á. I was to put what money was received of them for their benefit.
    “ Q. Dr. Egbert never gave you $1800 as a present to your knowledge ?
    “A. No, sir.”
    Counsel for plaintiff asked the Court to charge:
    1. Prima facie, a deposit in a bank belongs to him in whose name it is made.
    2. It being undisputed that the deposit in the Second National Bank of Titusville, was made in the name of the plaintiff", the defendant would not be entitled to a'verdict in this action without distinct and clear proof that the money was his.
    3. The fact that the defendant delivered the money to the bank, is not sufficient to overcome the prima fade case, in favor of the plaintiff, arising from the fact, that the deposit was made in his name.
    4. Statements of a witness, a fact must have been as claimed, because of the existence of other facts, are not evidence and ought to be disregarded by the jury.
    Counsel for defendant asked the Court to charge:
    “ That if they believe that the defendant; M. C. Egbert, deposited the money in dispute to the credit of Payne, the plaintiff, as the agent of Egbert & Brown,or of himself, for the purpose of having the said money placed to his, the defendant’s credit, either on the accounts of Egbert.& Brown or on his own individual accounts with said plaintiff, and the said money was never used for the purpose for which it was deposited, or in any other way for the benefit of said defendant, then the money belongs to said defendant, and the verdict of the jury should be for him.”
    The Court charged the jury, inter alia:

    “ If M. C. Egbert deposited it, for his own purpose, for N. H. Payne as the agent, either of himself, or Egbert & Brown, how did he happen to make the deposit of currency of $1883.12? Would it have been natural or reasonable to have made it $2000, $1800, $1900, or $1850 — some even sum? He deposited in currency, cash, bank notes, silver, gold and pennies. It took even copper to make this currency, and it seems to have been in currency and not drafts or checks.
    “ This $1883.12, according to the looks of the paper, appears as if it had been deposited in currency. He must have been to some trouble, or rather some counting of currency, to have deposited $1883.12. It took some silver, and for the two odd pennies he would have to give copper.
    “ [Has he explained to your satisfaction that it was his money? If he gave it to N. H. Payne for some purpose, or, if he gave it to N. H. Payne for any illegal or improper purpose, it would be an executed gift and he could not take it back.]
    “ Defendant’s point read:
    “Answer. This is affirmed, provided you find the facts as stated there, that the deposited money was never used for the purpose for which it was deposited. Was it deposited for any specific purpose? We are given no account of it. Was it for a specific purpose ? It does not seem to be deposited in opening an account, or rather, what a person would call a running account. There does not seem to be any other item to the credit of N. H. Payne, or drawn by him. It just seems to be specifically deposited ; not for the purposes of opening a bank book. A bank book does not seem to have been given to Egbert or Payne. Was it deposited for a specific purpose? to wit, in the name of N. H. Payne, to be used in the business of Egbert, or Egbert & Brown, by Payne, as their agent. If not, then it would seem to be a gift, in some mysterious way, to the plaintiff. There is no evidence of a specific purpose for which this was deposited, because there is no evidence upon either side, whether for a specific or a genei’al purpose. Egbert does not know anything about it, and does not tell you he does. That ‘ must have been ’ whatever Payne says about it, and I must have been ’ whatever Egbert says about it, a verbal argument of both, just as counsel argued upon the subject to-day.
    “ The legal propositions are as follows:
    “ Plaintiff’s first point read:
    “ Answer. This is true.
    “ Plaintiff’s second point read:
    “ Answer. This is a true proposition of law.
    “ Plaintiff’s third point read:
    “ Answer. This is true.
    “ Plaintiff’s fourth point read:
    “Answer. This we say is true, too. In other words, a witness upon the stand must testify to facts. Not evidence of facts, not presumption of facts ; he testifies to the facts, and the jury is to draw the legal inference from the facts. This is the law of the case; the facts we cannot help you on at all.”

      October 31st, 1881. Verdict for the plaintiff, upon which judgment was afterward entered.
    Defendant took a writ of error, assigning as errors the part of the charge within brackets, the answer to defendant’s point, and the answer to plaintiff’s fourth point.

      A. B. Richmond & Son and J. B. Brawley for plaintiff in error.
    There was no evidence in this cause tending to show that the defendant ever gave any money to plaintiff for an improper purpose. It is error to suggest a fact without evidence: Whitehill v. Wilson, 3 P. & W., 405; Sartwell v. Wilcox, 8 Harris, 117 ; Evans v. Mengle, 1 Barr, 69 ; Newbaker v. Alricks, 5 Watts, 183 ; Stouffer v. Latshaw, 2 Watts, 165 ; Musselman v. R. R. Co., 2 W. N. C., 105 ; Greber v. Kleckner, 2 Barr, 289.
    The case was substantially taken from the jury. There was sufficient evidence'that the money was deposited to the credit of Payne, to be used in the business of Egbert, and the question should have been submitted: Neiman v. Ward, 1 W. & S., 68.
    There was not only no evidence that this deposit was a gift, but both parties testify that it was not: Insurance Co. v. Rosenberger, 3 W. N. C., 16.
    The answer to plaintiff’s fourth point was bad law and bad logic. Improperly admitted evidence should be designated if referred to: Batdorff v. Farmers’ National Bank, 11 F. Smith, 180.

      C. Heydrick for defendant in error.
    1. Plaintiff had a clear prima facie title to the money.
    2. Nothing short of clear and distinct proof that the money belonged to the defendant was sufficient to overcome the prima facie case made by the plaintiff’.
    3. The evidence offered by the defendant did not distinctly and clearly show that the money belonged to him : Jackson v. Bank of the United States, 10 Barr, 61 ; Stair v. York Nat. Bank, 5 P. F. Smith, 364 ; Arnold v. The Bank, 21 P. F. Smith, 287 ; Sims v. Bond, 5 Barn. & Ad., 389.
    There was better evidence that it was a gift than that it belonged to Egbert. The fact that the deposit slip was in Egbert’s handwriting was the only evidence that he deposited the money, and there being no clear explanation of the transaction, the jury might have found that it was a gift. If a gift, it would be wholly immaterial whether it was for a legal or illegal, a proper or improper purpose. What the Court in effect say is, that if it was a gift for any purpose whatever, the giver could not take it back, and this is certainly the law. The witness had no right to state inferences.
   The opinion of the Court was delivered, January 2d, 1882, by

Sterrett, J.

The single question of fact, involved in this feigned issue, was whether the money deposited in the Second. National Bank of Titusville, January 28th, 1870, to the credit of Payne, the plaintiff below, belonged to him or to Egbert, the defendant.

The deposit having been in the name and'to the credit of Payne, the money was prima facie his, and the burden was thus cast on Egbert of proving that it belonged to himself and not to the plaintiff below. He undertook to do this by proving that the money was deposited by himself, as was shown in the deposit slip in his own handwriting, and by introducing other testimony tending to prove that the deposit -was made, not for the individual use and benefit of Payne, but for the purpose of enabling him to use it in the business, either of Egbert himself, or of Egbert & Brown, of which firm Egbert was a member, and for both of which parties Payne was then acting as agent, and that the money having never been applied to the use of either Egbert & Brown or Egbert, still belonged to the'latter. A single question of fact solely for the consideration of the jury was thus presented.

There appears to have been no exception to the admission or rejection of testimony, at least none is urged here, but the complaint is that the charge of the Court was calculated to prejudice and mislead the jury. In that portion of the charge which constitutes the first assignment of error the learned judge, referring to Egbert, thedefendant below, says: “Pías he explained to your satisfaction that it was his money ? If he gave it to Payne for some purpose; if he gave it to Payne for any illegal or improper purpose, it would be an executed gift, and he could not take it back.” This suggestion of a gift for an illegal or improper purpose was unwarranted by anything that appears in the record, and was calculated to invite the jury to an inquiry in which their only guide was vague suspicion or conjecture. There was no testimony tending to prove a gift either for a proper or an improper purpose. It is scarcely necessary to cite authorities to show that this was error. In Stauffer v. Latshaw, 2 Watts, 165, it is said : “ To submit a fact destitute of evidence as one that may nevertheless be proved, is an encouragement to err which cannot be too closely observed or unsparingly corrected.” The same general principle is recognized in Sartwell v. Wilcox, 8 Harris, 117 ; Newbaker v. Alricks, 5 Watts, 183 ; Whitehill v, Wilson, 3 P. & W., 405. The contention of the defendant below was fairly and clearly presented in his prayer for instructions. The testimony was quite sufficient to justify the submission of that proposition to the jury, and it should have been affirmed without the qualifications complained of in the second assignment.

Some of the remarks made by the learned judge in that connection were not warranted by the testimony and cannot be regarded as harmless. On the contrary, when considered in connection with the previous suggestion that the money may have been given for an illegal or improper purpose,” they were calculated to mislead the jury, and for aught we know may have had that effect in that portion of the answer covered by the third assignment. The defendant’s point was virtually negatived, and the case withdrawn from the jury, by an assumption of fact which the testimony did not justify. Speaking of the money the learned judge says: “ Was it deposited for a specific purpose, to wit, to be used in the business of Egbert, or Egbert & Brown, by Payne as. their agent ? If not, then it would seem to be a gift, in some mysterious way, to this plaintiff. There is no evidence of a specific purpose for which this was deposited, because there is no evidence upon either side for a specific or general purpose.” Being thus instructed that there was no evidence that the money was deposited either for a general or specific purpose, connected with the business of Egbert, or the firm of which he was a member, the jury was necessarily driven to the conclusion that it “ was a gift, in some mysterious way,” to Payne, as suggested by the Court, or that there was nothing in the case to rebut his prima facie right to the money, based on the fact that it was deposited to his credit. In either view the result would be the same, — a verdict in favor of the plaintiff’ below. The radical error in this part of the answer is in assuming that there was no testimony, for the consideration of the jury, tending to sustain the contention of the defendant below. If such had been the fact, it would have been the duty of the Court to have withdrawn the case from the jury by directing a verdict for the plaintiff, but there was evidence, both direct and circumstantial, which it was the province of the jury to consider, and from which they might, perhaps, have found the facts substantially as embodied in defendant’s proposition. The rule is, as stated by the present Chief Justice in Howard Express Company v. Wile, 14 P. F. Smith, 201, “ where there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury, however strong or persuasive may be the countervailing proof.” Among other items of evidence, tending to sustain defendant’s view of the case, is the letter addressed to him, by Payne, in October, 1880, in which the latter, speaking of the deposit, says: “ On a reference to the deposit slip, I think the N. H. Payne is in your handwriting. I am unable thus far to find my old book of that date to show how it came to be overlooked. The probability is, that you deposited it to save bringing it home, or for some special purpose, and reported to me, and I have forgotten to draw it.”

Other facts and circumstances, which need not be referred to, had a similar leaning, and, on the whole, we are of opinion that the plaintiff in error has just reason to complain of the charge and the manner in which the case was submitted to the jury.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    October and November Term, 1880,
    No. 106.
    Appeal of the Wheeling, Pittsburgh and Baltimore Railroad Company.
    1. A case stated being in the nature of a special verdict is a judicial ascertainment of the facts, and the Court will not, after judgment and the affirmance of the judgment upon a writ of error, reopen it upon an allegation that the facts were fraudulently misstated.
    2. To such a state of things the maxim interest reipublicce ui sit finis litium applies with full force.
    3. A railroad company, which is the successor of another railroad company, having secured the railroad franchises and property through a judicial sale, made by a decree of a Court having jurisdiction, and using lands, for the occupation of which the prior company had by parol entered into an agreement with the owner in regard to damages, fencing, and repairs, is bound by that agreement.
    Appeal of the Wheeling, Pittsburgh and Baltimore Railroad Company from the decree of the Court of Common Pleas of Washington County, refusing to stay a writ of habere facias possessionem.

    Ejectment by J. J. Cleland, February 27th, 1878, against the above-named company.
    December 30th, 1878, the plaintiff and defendant agreed upon the following case stated:
    The plaintiff' was, and is now, the owner of a tract of land situated in Buffalo township, Washington. County, Pa., through which the track of the Hempfield Railroad passes, occupying about twelve (12) acres thereof. The defendant corporation is the successor of the Hempfield Railroad Company, now claiming and owning its railroad, franchises, property, etc., it having been organized by John King, Jr., under the provisions of the act of 8th April, 1861, who became the purchaser of such franchises, etc., at a judicial sale made under a decree from the Supreme Court of Pennsylvania, and now using and occupying with its railway the strip of land for which the above action has been brought.
    The -Hempfield Railroad Company was incorporated by the legislature of Pennsylvania on the 15th day of May, 1850, and by the provisions of the act of incorporation, and a supplement thereto, approved the 12th day of April, 1851 (both of which acts of Assembly it is hereby agreed shall be taken as part of this case stated), the Hempfield Railroad Company was authorized to enter upon private property on the line of said railroad for the purpose of building and constructing its railroad, etc., making or tendering adequate compensation therefor to the owner or owners thereof. The Hempfield Railroad Company, some time about the year 1853, entered upon the lands of the plaintiff, and constructed its railroad track through and over the same without having agreed with the owner for the damage, or tendered a bond therefor, neither the company nor the plaintiff having ever applied to the Court to have damages assessed according to the provisions of the charter and its supplement.
    Some time in the month of June, 1856, C. M. Reed, Esq., the then president of the Hempfield Railroad, -and Edward Frost, the then local engineer stationed at Washington, Pa., came out to the place of the plaintiff for the purpose of adjusting and settling the damages which the company should pay for the use and occupation of the land ; that C. M. Reed, Esq., and Edward Frost, on the part of the railroad,, and the plaintiff then and there entered into a parol agreementtouching the damages of plaintiff as follows, viz.: The Hempfield Railroad Company agreed “ to pay the plaintiff the sum of eight hundred dollars as of that date with interest until paid, and to also build the necessary fences on both sides of the railroad track through the lands of the-plaintiff', and to keep the same in repair so long as said lands, should be used by the railroad company, and in consideration thereof the plaintiff was to make to the company a good title for the ground thus occupied by the railroad ; ” that in a few months after making this agreement the Hempfield Railroad Company, at its own proper cost and expense, built tbe fences through the lands of the plaintiff according to the provisions in the agreement. But about this time the Hempfield Eailroad Company became insolvent, and from that date to the time of its transfer to the present defendant corporation, has not been able (to the knowledge of the plaintiff) to pay the money agreed on as above stated, nor any part thereof, and the same has never been paid,, either by the Hempfield Eailroad Company or by the defendant corporation.
    Now, if the Court should be of the opinion that the plaintiff should recover, then judgment to be entered in his favor for the sti’ip of land described in the praecipe for the writ of ejectment iu the above case, but if not, then judgment to be entered for the defendant; the costs to follow the judgment, and either party to have the right to sue out a writ of error thereon.
    July 2d, 1879, the Court below entered judgment upon the case stated for the plaintiff, which judgment was subsequently affirmed by the Supreme Court. Plaintiff then issued a habere facias possessionem.

    Whereupon defendant presented a petition, February 5th, 1880, setting forth that defendant had discovered since the affirmance of the judgment that tbe facts as given in the case stated were untrue, that the title of Clelaud was not acquired until 1866, that he was not the owner of the lands in 1878, but by two deeds, dated respectively March 21st, 1874, and April 1st, 1876, he had conveyed away all his right, title, and interest without reservation, and that the omission of the plaintiff to disclose these facts before judgment gave him an undue and unfair advantage.
    It further represented that the public was largely interested in the operation of the road, that the land described was indispensably necessary to its usefulness, and that it was willing to pay whatever damages may have accrued to plaintiff by the appropriation of the land when such damages shall be adjudged.
    Tbe petitioner asked the Court:
    1. To order a perpetual stay of proceedings upon the judgment, or,
    2. To order such a stay of the writ of habere facias as will enable the parties to agree upon the amount of damages, or proceed to the legal ascertainment of them.
    3. Further relief.
    No answer to this petition was filed.
    The Court below, Hart, P. J., refused the prayers of the petition, filing tbe following opinion:
    “The case stated being,according to all the authorities,in the nature of a special verdict, it is a judicial ascertainment of the facts, and after judgment has been entered upon it, I can find no warrant for setting it aside and reopening the ease. It is very unusual for the Court to entertain a motion for a new trial after the expiration of four days from the date of the verdict, but there is no precedent whatever for entertaining such motion after judgment entered upon the verdict, and after a decree affirming such judgment on writ of error. To such a state of things the maxim, interest reipublicce ut sit finis litium,, applies with full force.
    “Taking the facts as they are in the case stated then, is the defendant company entitled to a stay of execution ?
    “That depends upon the answer to be given to the further question, whether the defendant is bound by the agreement of June, 18c 6, between the plaintiff and the Ilempfield Railroad Company? I think this last question must be answered in the affirmative. I understand the law to be so settled in Western Pennsylvania Railroad Company». Johnston, 9 P.F. Smith, 290. In that case Johnston had obtained an award of viewers in his favor for five hundred dollars against the original company, the Northwestern Railroad Company; and judgment was entered on the award November 19th, 1859. In 1865 a scire facias having issued on the judgment against the North-western Pennsylvania Railroad Company, with notice to its successor, the Western Pennsylvania Railroad Company, a case stated, embodying the facts, was agreed upon. Upon the case stated the Court below entered judgment for the plaintiff. Upon a writ of error taken by the latter company, the Supreme Court affirmed the judgment of the Court below. It is true, the act of Assembly incorporating the purchasers of the franchises, etc., of the original company, expressly provided, ‘ that all unpaid damages which have accrued to landholders by reason of the original construction of said road, shall remain forever, until paid, a lien upon said road/ In reference to that, however, Agneav, J., says: ‘ Perhaps it would be sufficient for this case to say that the Western Pennsylvania Railroad Company accepted a charter repealing the charter of the Northwestern Railroad Company, and providing that the damages of the land-owners remaining unpaid should remain a lien on the road till paid; and, therefore, the legislature clearly intended that they should be paid by the new company, -which, under the deed from Hirst, and under its charter, is possessor of all the rights and interests of the old company. But/ he adds, ‘ the ease rests upon other grounds. The plaintiff, who has never parted with his rights, stands on the. higher fundamental right of property; that it shall be taken and used by no one for the public purpose of a railroad without just compensation being made to him.’ And again: ‘ When the alienees of the Northwestern Railroad Company came into possession they took the interest acquired cum onere.....In law and equity neither they nor any one claiming the interest of the Northwestern Railroad by an act of eminent domain, subordinated by the law and the constitution to payment as the condition of its exercise, can hold and use the interests thus acquired without compensation.....If the case stood at common law, this right of the land-owner to payment could be enforced by a special action on the case against the alienee.....• But the statute having provided a remedy it must be pursued..... Here the statute has been pursued, the damages ascertained, and judgment- rendered for their recovery against the original occupant. The owner has, therefore, exhausted his statutory power. . . . lie can bring no new action, and cannot resort to a new petition for assessment. The matter has passed in rem adj udicatam. A new proceeding would reopen the whole field of inquiry at a late day, when the circumstances had entirely changed.’ -This language of Justice Agnew I regard as applicable to the present case. It is true the claim for damages was never prosecuted by Cleland to judgment against the Hempfield Railroad Company. But the statutory remedy was as completely exhausted by the agreement of June, 1856, as it would have been by a report of viewers or the verdict of a jury, with judgment thereon in his favor. He is as effectually precluded from petitioning for an assessment as he would have been by such judgment, because his petition must allege a failure to agree with the Hempfield Company, contrary to the admitted fact. If it be said, that so far as the defendant company is concerned, the agreement of June, 1856, was res inter alios acta, the reply is that the objection would have applied with equal force to a judgment obtained against the Hempfield Company prior to the sale of its franchises to Mr. King.

    “The truth is, we may apply here, with a change of names, the language of Justice Agnew, sufra: ‘ When the alienees of the Hempfield Railroad Company came into possession under their purchase, they took the interest acquired cum onere f and it would seem to follow, that they must, as the inherent condition of their exercise of the right of eminent domain acquired by their purchase, pay to the land-owner the compensation, which had either been agreed upon by the original parties, or judicially ascertained by an assessment of damages in a proceeding between the original parties, as provided by the statute.

      “It follows,therefore, that until the defendant tenders the money due under the agreement of June, 1856, the writ of habere facias ought not to be stayed ; and the application for the rule to stay must be denied.”
    The petitioner then appealed, assigning as error this ruling of the Court.

      H. M. Dougan for appellant.
    The facts of the petition not having been deniea, are to be taken as true, and the appellee is seeking to enforce a fraudulent judgment. If the facts were untruly stated in order .to get an unfair advantage, the judgment goes for nought: Sims v. Slacum, 3 Cranch, 307 ; Cochran v. Eldridge, 18 Wr., 365 ; Hall v. Hamlin, 2 Watts, 354 ; Johnson’s Appeal, 9 Barr, 416 ; McClurg v. Wilson, 7 Wr., 439.
    The company was injured and therefore has a status to impeach the judgment: Marr’s Appeal, 28 P. F. Smith, 69.
    One object of the petition -was to obtain such a stay of the habere facias, as would have enabled the company to secure the eminent domain: Pittsburgh & Steubenville Railroad Company v. Jones, 9 P. F. Smith, 433.
    Questions of damages to the land-owner could not have been appropriately determined in an action of ejectment, were not submitted in the case stated, and therefore, are not res adjudícala: Philadelphia & Reading Railroad Company v. Waterman, 4 P. F. Smith, 337.

      Braden & Miller and A. W. & M. C. Acheson for appellee.
    It was as much the duty of the appellant as the appellee to see that the facts were stated correctly. •
    The want of an answer to the petition does not admit the facts.
    If the allegations are true, it would not have defeated the plaintiff in the ejectment. It would only raise a question as to whom the damages would be payable: Railroad Company v. Hall, 1 Casey, 336.
    If appellee sold the land the damages would belong to him: Seibert v. Levan, 8 Barr, 385 ; Zimmerman v. Canal Company, 1W. & S., 346; Navigation Company v. Decker, 2 Watts, 343,
    His vendees would have had notice of the title of the company: Bailroad Company v. Jones, 14 Wr., 417.
    The second point was set at rest by Western Pennsylvania Railroad Company v. Johnston, 9 P. F. Smith, 290.
    November 25, 1881.
   Per Curiam:

We affirm the order of the Court below upon the opinion of the learned president. We see no equity in the appellant to have the writ of habere facias possessionem, stayed on the ground he set up in his petition.

Decree affirmed and appeal dismissed at the costs of the appellant.


text:
    October and November Term, 1881,
    No. 34.
    Adams versus Mortland.
    1. The proper remedy for a defendant who has been discharged in bankruptcy since the entry of judgment against him is to move to have the judgment opened.
    2. It is only where it appears that a judgment has been paid that the Court has power, under the act of March 14th, 1876, to order it to be marked “ satisfied.”
    Error to the Court of Common Pleas of Butler County.

      Sur rule to show cause why a rule to show cause why a judgment should not be marked “ satisfied ” as to E. II. Adams, one of the defendants, should not be reinstated.
    The facts as found by the Court below were as follows:
    On the 8th of January, 1879, a judgment was- entered in favor of James L. Mortland and against E. H. Adams and W. D. Renick, on warrant of attorney contained in a bond, dated the 12th of April, 1868, and calling for two hundred and sixteen dollars, payable twelve months after date. On April 1st, 1879, a fi. fa. was issued on this judgment and placed in the hands of the sheriff, who, on the 22d of May, 1879, levied on personal property of W. D. Renick, one of the defendants. On the 28th of May, 1879, W. D. Renick presented his petition to Court, setting forth that he was but bail of E. H. Adams on the note on which judgment had been entered, and fi. fa. issued and levy of his personal property made; that the plaintiff (Mortland), at or about the maturity of the note, on the 12th of April, 1869, agreed with E. H. Adams, the principal in the note, to extend the time of payment thereof for one year, and that afterwards the said plaintiff informed him of said agreement and extension, and inquired whether he would still be bound, which he refused, and so notified plaintiff, and desired him to proceed to collect the same from the principal, who was then, and years after-wards, entirely solvent; that this said plaintiff neglected and refused to do, and did not proceed to collect the said note until more than ten years had elapsed from the time said note fell due, and praying the Court to open the payment as to him and allow him to defend.
    On the same day a rule to show cause was granted and all proceedings on fi. fa. stayed. To this rule plaintiff appeared and filed an answer thereto on the 21st of June, 1879, denying that he had extended the time of payment of the note to E. II. Adams for three years or for any other time, and also denying that said W. D. Renick had ever notified him to proceed to collect the same after it fell due or he would not be responsible. No testimony was taken to sustain the allegation set forth in the petition or answer, and the rule being regularly on the argument list and called for argument, and not being supported by proof of the facts set forth in the petition, and no sufficient cause appearing to excuse the negligence or justify continuance or further delay, was discharged by the Court.
    On the 28th of April, 1879, E. II. Adams presented his petition, to- wit, setting forth that judgment had been entered against him by James L. Mortland on the note dated 12th of April, 1868, in which W. D. Renick was bail, and a fi. fa. issued thereon; that he, on the 10th day of April, 1870, filed his petition in the United States Court for the W estern District of Pennsylvania, for the benefit of the Bankrupt Act, and was duly discharged as a bankrupt on the 20th of February, 1871, and praying a rule to show cause why the judgment should not be marked “ satisfied ” so far as he was concerned, and that all proceedings against him thereof be stayed. On this petition a rule to show cause was granted as prayed for, on same day, returnable on the third Monday of May following, and all proceedings in the meantime stayed. To this rule plaintiff appeared, and on the 15th of May filed an answer thereto, stating that he did not know, except by report, that the defendant, E. H. Adams, had been discharged as a bankrupt, and called upon him to prove his discharge ; and further, the said E. H. Adams had promised him, after the time it was alleged he became a discharged bankrupt, to pay him the amount of said note as soon as able to do so, and that he was then abundantly able to pay it. No steps being taken by either party to prove or sustain the allegations set forth in the petition or answer thereto, and the same being regularly on the argument list and called for argument, and no sufficient cause appearing for the negligence in preparing the prpof to support the rule, or cause shown for further delay, it was, on the 21st of February, 1880, discharged by the Court.
    Plaintiff then, on the 28th of February, 1880, discontinued levy of the goods of W. D. Renick, and on same day had q,n

      alias ji. fa. issued on the judgment and put in the hands of the sheriff, who, on the 15th of April, 1880, levied on the personal property of defendant, E. H. Adams.
    On the 5th of May, 1880, defendant, E. IT. Adams, again presented his petition to the Court, setting forth that this judgment was entered against him after his discharge in bankruptcy ; that on the 28th of April, 1879, he had presented his petition to Court, asking that this judgment be set aside or satisfied as to him, and that a rule was granted which it was his desire to follow up; that he knew nothing further in regard to it until about the 1st of March, when he was directed to have his discharge filed, which he did, and also filed a counter-affidavit, but has since learned that the rule had been before that time discharged, and praying that the rule be reinstated and the case disposed of on its merits, otherwise great injustice would be done him. On petition same day rule was granted to show cause why the former rule which was discharged should not be reinstated, and all proceedings on the judgment in the meantime be stayed.
    Upon this state of facts the Court held :
    “ This is the rule now before the Court, and which has been fully argued. At or about, the time of the argument thereof, on the 18th of September, 1880, E. H. Adams presented a petition to the Court, praying that satisfaction be entered on said judgment, on the ground that it was satisfied by his discharge in bankruptcy; and this petition is also before the Court and under consideration with the rule above stated.
    “On due consideration we have concluded to discharge the rule to show cause why the former rule which was discharged should not be reinstated, and to refuse a rule on the petition of the 18th of September, 1880. The prayer of this petition of the 18th of September, 1880, is the same as the prayer of the petition of the 28th of April, 1879, on which the rule was granted and afterwards discharged by the Court. All these petitions set forth the same facts, — the discharge of E. IT. Adams as a bankrupt as the grounds for having the judgment opened and satisfied as to him. The whole case was presented in his first petition, a rule was granted him and full opportunity for a hearing thereon, given him. lie had his day in Court, and failing or neglecting to sustain the rule it was. discharged. He failed to show sufficient or satisfactory reason for his negligence, or why the rule should be reinstated or a new rule granted. That he intended to follow up his rule is no reason for granting him a rehearing or a new rule, when he failed to follow it up and showed no reason for failure but neglect, lie has not satisfied us that he will suffer, as he says, great injustice unless he is granted a rehearing and has the case disposed of upon its merits. The merits of the case will never be known. Since all the parties had their day in Court, when the merits of the case might have been shown on the one side or the other, the plaintiff has died, and his testimony sustaining his printed affidavit in his answer to the defendant’s petition, that E. H. Adams had promised and agreed to pay the note after the discharge as bankrupt, is lost. E. II. Adams, in his affidavit, swears he never made such promise. Who is now to decide this disputed fact? If Mortland’s affidavit is true, Adams would not suffer great injustice in being refused a rehearing. If Mort-land’s oath is false, then Adams might suffer in having to pay the debt. But who can now say which affidavit is true and which is false? Until this can be said it cannot be urged that injustice will be done Adams by refusing him a rehearing. W. D. Renick is now incompetent to prove the facts contained in his petition as to the eoutract between plaintiff’ and co-defendant, by which he alleged he could have made a successful defence. Plaintiff auswers under oath, ‘ denying ’ all the allegations of the petition, and which is true and which is false will now never be known. To give defendant Adams another day in Court,- under all these circumstances of the case, might result in greater injustice to plaintiff’s estate and to the bail in the bond than it would to have him pay the judgment.
    “ Mitchell on Motions and Rules, pages 32 and 33, says: ‘ A second rule, after the discharge of oue of the same kind, is not allowed, unless in very exceptional cases, and when applied for the fact of the discharge of a previous rule of the same kind should always be mentioned and the special reason for asking a second rule set forth. In default of this the rule will be discharged without consideration of the merits.’ Mitchell v. Pierce, 1 W. N., 156: ‘When rules have been discharged through unavoidable failure of counsel to be present, or when through misunderstanding the Court has been erroneously informed that the rule was abandoned, or when the situation of the parties has so changed as to show on the present state of facts a new and strong prima facie case or claim to the relief sought, a second rule is sometimes granted. But only in exceptional and very clear cases, when counsel find at the hearing that through some defect which they believe remediable they cannot at present succeed, they should ask leave of the Court to have the rule continued or to withdraw it. A rule thus withdrawn is not a bar to a second rule of the same kind.’
    “ It has been held that the Court will not grant a new trial to enable a defendant to plead the statute of limitation, which he neglected to plead on the trial. Eor the reason that the debt, being just and unpaid in fact, there is but little equity in applying the statute. There is analogy here. The judgment of plaintiff is just and unpaid in fact. Defendants have both had their day in Court, and full time and opportunity to make their defence to the payment of an admitted, just, and unpaid debt. This they both neglected or declined to do. Why should they have a new trial now, after time and death have made such great changes in the surroundings of the casa and the legal status of the parties? We therefore discharge the rule, and refuse the prayer of the petitioner for a new rule in the case of similar import and purpose.”
    The defendant, Adams, then took a writ of error, assigning as error the above ruling.

      Charles McCandless for plaintiff in error.
    The discharge in bankruptcy is equivalent to payment of the debt and discharge from payment by the debtor: Ott v. Perry, 1 Phila., 77 ; Field’s Estate, 2 Rawle, 351 ; Baker v. Wheaton, 5 Mass., 509.
    After a discharge an action can only be sustained on a new promise, which must be declared on: Reeside v. Hadden, 12 Penna. State, 243; Maxim v. Morse, 8 Mass., 127.
    The judgment-note was extinguished, and all powers under it were ended.

      George R. White and T. C. Campbell for defendant in error.
    The judgment was regularly entered. It was proper for the Court before it marked it satisfied to hear some evidence of the fact. Defendant failed to produce it. He did not prove the discharge. He has had his day in Court.
    The reinstatement of a rule is a matter within the discretion of the Court: Thompson v. Barkley, 3 Casey, 263; Howser v. Commonwealth, 1 P. F. Smith, 332 ; McManus v. Commonwealth, 10 Norris, 57.
    November 25, 1881.
   Per Curiam:

The proper remedy of the plaintiff in error was to have moved the Court below to open the judgment, upon which there would have been an appeal to this Court. It is only where it appears that a judgment has been paid that the Court has power under the act of 1876 to order it to be marked satisfied.

To the plea of discharge under the bankrupt law there might have been many answers. We find no error in the refusal of the Court below to grant the defendant’s motion.

Judgment affirmed.


text:
    October and November Term, 1881,
    No. 223.
    Bailey et al. versus Niles.
    1. The plaintiff, Niles, being in debt and needing security, signed a contract with defendants, transferring to them certain leases, and setting forth: “ The above sale, transfer, sale, or, delivery, is made by first party to said second parties for the purpose of securing them against loss or damage from their guaranteeing or securing the said Niles, or securing William P. Porter from loss by bailing said Niles. In consideration of the above the said second parties agree to secure William P. Porter against loss from his becoming bail or security to said Niles to the amount of three thousand five hundred dollars (§3500).” Porter did not sign the contract. At the same time plaintiff executed a mortgage to defendants reciting the contract. Porter then signed notes for the plaintiff to that amount, which he was subsequently compelled to pay, and plaintiff assigned to him all plaintiff’s interest in the contract. Held, in an action by plaintiff to the use of Porter, that neither want of definiteness in the description of the interests in the leases, nor the fact that the interests transferred to the defendants subsequently proved to be of but little value, would exempt defendants from the obligation to indemnify Porter, as expressed in the contract.
    2. The fact that Porter was not a party to the writing ought not to avail defendants.
    3. It was not error to charge that the case is analogous to that of an agent who, either by prior parol authority or by subsequent parol notification, enters into a contract in his own name, under his own seal, for the benefit of his principal, in which the action would be maintained in the name of the agent for the benefit of the principal, and the defendants, if they knew the contract was for the benefit of the principal, could take no other defence than such as would be available against such principal.
    4. If, on the faith of the agreement executed by the defendants, Porter advanced the money, they could not as against him set up that the consideration was worthless or had not been received.
    5. Any doubt as to the competency of a witness permitted to testify is cured by uncontradicted evidence of the facts to which he testified subsequently received by admission.
    Error to tbe Court of Common Pleas of Mercer County.

    Covenant by Austin Niles, use of William F. Porter, against T. S. Bailey, Daniel Perrine, E. X. Giebner, and E. G. Eberman, to recover the amount of certain losses incurred by Porter as security for Niles.
    Pleas, covenants performed absque hoc, with leave, etc.
    The instrument sued upon was executed March 22d, 1876, by the plaintiff, Niles, of the first part and the defendants of the second part, and was sealed and signed by all of the parties, but was not witnessed. By it Niles sold, transferred, and assigned a number of coal, oil, and sand leases and other interests in real estate to the defendants. It then proceeded as follows:
    “ The above sale, transfer, sale, or delivery, is made by first party to said second parties for the purpose of securing them against loss or damage from their guaranteeing or securing the said Niles, or securing William E. Porter from loss by bailing said Niles. In consideration of the above the said second parties agree to secure William E. Porter against loss from his becoming bail or security to said Niles to the amount of three thousand five hundred dollars ($3500) over and above two thousand and fifty dollars ($2050); and it is agreed by said second parties that if said Niles shall at any time discharge said second parties from any and all liabilities on this contract, or that he shall secure them against any loss or damage from their thus guaranteeing said William E. Porter against loss, then the said second parties agree to transfer and redeliver to said Niles all the aforementioned property, oil, coal, sand leases and articles for the purchase of land, except one-half of his interest in articles for purchase of lands in Worth and Sandy Lake townships, being about 2000 acres, and one-half of his interest in the oil leases at Raymilton and on Mill Creek, which said interest is to be and remain said second'parties’ absolutely, or their assigns.”
    Niles, by an indorsed instrument under seal, assigned and transferred, June 23d, 1880, all his right, title, and interest in the contract to Porter.
    At the date of the above contract Niles and wife executed a mortgage to the defendants, which recited as follows:
    “ Whereas the said Austin Niles, in and by obligation, or writing obligatory, under hand and seal duly executed, bearing even date herewith, stands bound unto the said second parties in the sum of lawful money of the United States of America, conditioned for the payment of all sums of money that said second parties have advanced or may hereafter advance or secure for said Niles, with the interest and costs, and for the keeping them harmless from any loss or damage from the contract bearing even date herewith, now this indenture witnesseth that the said A. Niles and E. J. Niles, as well for and in consideration of the aforesaid contract, and for the better securing the said parties against loss from the same,” have granted, etc.
    The condition of the mortgage was that the first parties should pay to the second parties “all damages and costs from the above-mentioned contract.” The mortgage was recorded March 29th, 1876.
    Upon the trial before Brown, P. J., plaintiff offered in evidence the above instruments. He then proved, by C. B. Fulton, cashier of the Sandy Lake Savings’ Bank, it being admitted that if present he would so testify, that on the 22d of March, 1876, Austin Niles was indebted to the bank for borrowed money upon a number of notes; that on May 1st, 1876, the four notes were consolidated into one note, making $2166, and that, on May 8th, 1876, the last three notes were consolidated, and $500 additional borrowed by Niles the same day,making $1350; that "William F. Porter signed the two last mentioned notes, one of $2166 and the other for $1350, as bail; that these notes were renewed from time to time, and the discount paid by Niles on the $1350 note up to the 17th day of February, 1878, and on the $2160 note to April 11th, 1878 ; that the amount of the discount paid by Niles was $751.10; and that on June 18th, 1880, William F. Porter, bail as aforesaid, paid the two notes then in judgment, debt, interest, and cost, amounting to $4011.22.
    Counsel for plaintiff then called William F. Porter, the use plaintiff, aud proposed to prove by him “ that Austin Niles delivered to him the paper of 22d of March, 1876, and that in pursuance of such contract he went upon the paper of Mr. Niles, in the Sandy Lake Savings Bank, to the extent of $3500.”
    Counsel for defendant objected to the witness, being the use plaintiff, and Austin Niles being dead, as incompetent to prove anything by which the defendants might be affected in this suit, and incompetent to prove any declaration or action of Niles.
    The Court, under exception, permitted him “to show simply that subsequent to the 22d of March the witness indorsed and became responsible for the obligations of Niles, and the objection sustained so far and overruled as to the other portion.”
    The witness testified that after March 22d, 1876, he signed, as bail for Niles, two notes amounting to about $3500, and that he afterwards paid upon them over $4000.

      E. G. Eberman, for the defence, testified in substance:
    I wrote this agreement at the request of Austin Niles. I never had any conversation with Mr. Perrine or Mr. Giebner, nor did Bailey, Niles, and I have any talk about the terms of this agreement, but only talked about getting Perrine, Giebner, Bailey, Niles, and myself together to see what we could do about the matter. I gave it to Niles to submit to the other parties mentioned in the contract, and we were to get together to see if it was satisfactory. I never saw the contract since until to-day. I never had at any time a conversation with W. E. Porter, the use plaintiff, relative to this contract or the conditions of it. There was no agreement between me and Mr. Niles, or any other person, by which Niles was to give to W. E. Porter the article in evidence. I first learned that W. E. Porter had become security for Austin Niles within a year past, some time last fall or winter.
    Upon cross-examination the witness said :
    “ I think I wrote the mortgage at the same time I wrote the article. My understanding was, in case we executed the paper, all of us, and delivered it, that we back-bail or secure Mr. Porter in case he bailed Mr. Niles, either by bond or agreement, executed with him or to him, to the amounts mentioned.”
    The witness also testified as to the conversation with Niles at the time the agreement was written as follows:
    “ Niles, T. S. Bailey, and myself had a conversation on the street a few days before the paper was written, at which time Niles said he wanted to g'et Perrine, Ur. Giebner and us together for the purpose of making some arrangement to give him assistance if he needed it. The day this paper was written, Mr. Niles said he could not get the parties together, and that he wanted- me to write such a paper or agreement, as he proposed going on it with them so that they could see what he proposed doing. He said that he proposed assigning to us if we could agree a number of coal and land leases in Springfield township, this county, contracts for the purchase of a large lot of land in Sandy Lake and Worth townships, this county, and in Mineral township, Venango County, and some oil leases on Mill Creek and near Raymilton. After some conversation I wrote the first clause of the article, down to the description of the property to be assigned, and then learned from him that he had not the leases and contracts with him; he told me that he had them at his home; I told him that I could not make the paper as I intended, a full assignment, without having the papers themselves so that I could describe them in the article ; he said that I could then go on and refer to the contracts and leases in a general way, so that when he showed the papers to Bailey, JL’errine, and Giebner, that they could see what he proposed to do, and if they'were satisfied with his proposition, he would make an assignment on the articles and contracts to us ; he said he would go and see each one of them, and if they were satisfied with his proposition, we would all meet together and close the matter up — make some final arrangement. I then wrote on the article, described in general terms the contracts, leases, and lands, as being the property he proposed giving the defendants. I then wrote at his dictation the latter part of the article, setting forth what he would assign to the defendants if his proposition was accepted. This paper I signed, and Niles took it away for the purpose, as agreed upon between us, of showing the other defendants his proposition to them, and he said that if the other defendants were satisfied with his proposition, that we would all get together, and he would assign them the contract and leases, and deliver them’ to us. I never saw any of the contracts or leases mentioned or spoken of by Niles.”

      Daniel Perrine for the defence testified in substance:
    Niles said he would get the articles and leases together and get us together,' and assign them over to us, and if he did not fulfil his agreement, his part of it, this article would not be binding on any of us, no one; that this article was a mere form to see what he could get the parties to do. He said this before I signed the article. It was a promise he made, as I was careful about it. He did not transfer to me or any of 'the defendants to my knowledge any of the leases. I did not understand we were to keep Porter clear.’ We were to come on back of Porter. My understanding of it was, if Porter wanted bail we were to go on with Porter. We were-not to keep Porter clear, but merely to enable Porter to get the money, Porter being first liable and we afterward.
    This testimony was substantially corroborated by T. S. Bailey and E. X. Giebner.
    Defendant also introduced testimony to show that in 1875 Niles sent certain of the leases described in the contract to an agent with instructions to form a company and sell them, and that in 1877 Niles had cancelled one of these leases, and in 1880 assigned another.
    Plaintiff in rebuttal read portions of the deposition of Niles testifying that he had permission from the defendants to sell the Niehel and Curry leases, that he was to take charge of the property, and that he managed it and advised with them up to April ist, 1880.
    Defendant presented certain points, which, so far as material, will be found in the charge.
    The Court charged the jury, inter alia, as follows:
    “ The case has been tried and argued by the counsel on both sides without especial reference to the particular issue raised by the pleadings, and as if it were denied upon the part of the defendants that the writing given in evidence was executed. It has been tried as if the pleas were non e'st factum, covenants performed with leave, etc., and the Court will treat it as the counsel on both sides have treated it, as if it were tried under those allegations. The plaintiff alleges that by the writing given in evidence, signed and sealed by the plaintiff and each of the defendants, and dated MarJi 22d, 1876, the defendants, for the consideration expressed in the writing, obligated themselves to indemnify or secure William E. Porter -against any loss he might Sustain by reason of his becoming bail or surety for Austin Niles to an amount not exceeding $3500. That upon the faith of that agreement Porter did become security for Niles and did pay and sustain damage and loss, and that defendants are, by the express terms of the writing, bound to pay to Niles for the use of Porter the amount of damage and loss sustained, within the stipulated limits of $3500, which Porter has sustained by reason of his becoming such security.
    “ [Assuming now and for the present defendants deny that the writing dated March 22d, 1876, was intended by the parties to be obligatory from its date, provided Porter did become security for Niles and sustained loss thereby, then the construction of the writing, its legal import and the liability of the defendants in this suit, brought in the name of Niles as the legal plaintiff, are matters to be determined by the Court. And we go upon this assumption, that any want of definiteness in the description of interests in the leases and articles of agreement for the purchase of real estate which Niles'transferred to the defendants as the consideration of their obligation to indemnify Porter, will not avail as a defence. In other words, the defendants are bound by their contract as expressed in the writing itself. And if the interest transferred to the defendants by the writing subsequently proved to be of but little value, this would not exempt defendants from the obligation to indemnify Porter, as the same is expressed in the writing.]
    “ If the writing became obligatory on the defendants from its date as before mentioned, which will be for you to determine, then we may safely infer from its terms that Niles expected the interests and property which he transferred to defendants would increase in value, speculative or otherwise, and from the evidence you may possibly believe that defendants had similar expectations, because you will observe by the writing that in a certain contingency, that is, the contingency that Niles himself should indemnify Porter, or pay the debt for which Porter became liable — then this property was to be retransferred, excepting certain interests which the defendants were to retain; but, be this as it may, the writing itself shows that Niles desired credit; that to obtain it he needed some one ..to become .his security; that he expected 'William F. Porter to become such security; that defendants knew that he expected Porter to become his security, and knowing this fact, and in consideration of the property and interests transferred to them, they agreed to secure Porter from loss he might sustain by becoming such security, up to the sum of $3500.
    “ The writing bears its testimony that its purpose was to insure credit to Niles by defendants’ agreement to indemnify Porter against loss in cáse he should become Niles’s security. This being the deliberate written engagement of the defendants, I mean if you shall, under the instructions we shall presently give you, find that the writing was intended to be binding at its date, the defendants ought in some manner be compelled to comply with that engagement, to the extent that Porter has sustained loss within the limits mentioned in the article.
    “ [The defendants contend, that even if the writing became a valid contract as of its date, that Porter was no party to it, and hence that there can be no recovery in Niles’s name for his benefit. The fact that Porter was not a party to the writing, we think, ought not to avail defendants. Having .agreed with Niles to indemnify Porter, if Porter, in good faith and upon the faith of defendants’ agreement, incurred liability for Niles, it occurs to us that even-handed justice requires them to do so.] But how shall they be compelled to comply with their agreement ? Porter cannot, in his own name as legal plaintiff, bring suit upon the covenants contained in the writing of March 22d, 1876, because he is no party to it. He cannot maintain assumpsit against defendants, because they have received neither money nor property for his (Porter’s; use, or to be paid over to him, and they hold neither money nor property as his trustee, and we are unable to think of any form of action in which he could maintain a suit in his own name against the defendants ; and if this be so, the defendants would escape all liability, and Porter would be entirely without remedy unless his right to indemnity from the defendants may be enforced by this suit in the name of Niles, for his benefit. It is not, in our opinion, the case of an assignor of a chose in action, and indeed we attach no importance in this regard to the fact that Niles has assigned the writing to Porter. [The case is rather analogous to that of an agent who, either by prior parol authority or by subsequent parol ratification, enters into a contract in his own name, under his own seal, for the benefit of his principal, in which latter case the action upon a sealed instrument would be maintained in the name of the agent for the benefit of the principal, and in which the defendants, if they knew the contract was for the benefit of the principal, who had not signed or sealed the paper, could take no other defence than such as would be available against such principal.]
    “ [We, therefore, with some doubts as to the correctness of our opinion, but which you are to take from us as the law of the case, instruct you that if you shall find that the writing of the 22d of March, 1876, was only signed by the parties defendant, whether they were all together at one time or not, or whether the writing was then dated or not, if it was intended to be a subsisting obligation when they should all have signed and sealed it, then we say the plaintiff can recover, provided that you further find that upon the faith of that writing Porter did become security for Niles, and did honestly and in good faith incur liability therefor, which he has since paid.]
    “ On the part of the defendants it is claimed, that at the time wheu the several defendants attached their signatures and seals to the paper which bears date March 22d, 1876, it was understood and agreed between each of them and Niles that the writing should not be operative as an obligation against them until Niles should procure the leases, articles of agreement, etc., mentioned in the writing, and assign them to the defendants, and not until all of the defendants should meet together with Niles and consummate and perfect the agreement, and they say that it never was so consummated.
    “ Now, gentlemen, you have got the position of the case.
    “ "Whether this writing ever had an existence or not, binding upon the parties, is a question of fact for the determination of the jury under the evidence ; that is, whether it was ever delivered, or so far executed as to be intended by the parties to be presently binding upon them, that is a question of fact for the determination of the jury.
    “ If it was so executed and became operative as an instrument, what that instrument means, its interpretation, is a matter for the Court.
    “Now, we say, if you find, what the defendants allege to be the fact, from the evidence in the case, that this writing never was intended by the parties to be obligatory until something further was done, then we say to you that the plaintiff cannot recover, because in that event the writing never had a legal existence, although it may have been signed, and in this connection we will read and affirmatively answer the defendants’ second and fourth points.
    * * * * * *
    “ The defendants, in addition to the two points I have previously answered in connection with the statement of the position of the defendants, present two other points, that I will now answer.
    “ ‘First: That as the present suit is an action of covenant on a contract, or supposed contract, between Austin Niles, the plaintiff, and the defendants for violation or breach of covenants contained in said contract, which was assigned to Porter, for whose use said suit is brought, the use plaintiff, Porter, has no other or greater rights under said contract than, the legal plaintiff, Niles, and unless Niles could recover in said action Porter could not.’
    “This point is answered in the affirmative, but in so answering it the attention of the jury is called to -the instructions in the general charge, to the effect that this suit may be sustained in the name of Niles and for the benefit of Porter.
    “Third point of defendants: ‘That unless the jury find from the evidence that Niles acted as the agent of Porter, and informed the defendants of his agency, or that Porter communicated with defendants and was induced to or influenced by them to become bail for Niles, then the plaintiff cannot recover in this suit.’
    “ This point we answer in the negative, as we have already substantially answered the position taken in the general charge to the jury.”
    Defendants excepted to those portions of the charge within brackets, and to the answers to their first and third points.
    March 15, 1881. Verdict for the plaintiff for $4190.38, upon which judgment was afterward entered.
    Defendants took a writ of error, assigning as errors the portions of the charge within brackets, the answers to the first and third points, and the admission of the testimony of W. F. Porter.

      S. Griffith & Sons and S. H. Miller for plaintiffs in error.
    Under the pleas, the plaintiff was under the duty and necessity of proving his case affirmatively : Wilkinson v. Pittsburgh, F. & M. T. Co., 6 Barr, 398; Zents v. Legnard, 70 Penna. State, 192; Stewart v. Bedell, 79 Penna. State, 336 ; Troubat & Haly, vol. ii, p. 33 ; Reiter’s Ex. v. Morton, P. L. J., vol. 11, p. 127.
    There was no proof that Niles had performed his covenants, or delivered any of the leases or contracts. Porter, the use plaintiff, occupied the same position as Niles.
    There is not one particle of evidence in the cause to show that Niles ever acted or pretended to act as the agent of Porter in this transaction, nor is there any evidence to show that the defendants knew or had any reason to believe or suspect that Niles was so acting, or that Niles was authorized, either directly or indirectly, to deliver the paper to Porter, either as the defendants’ agent or otherwise. Nor was there any evidence that during all the negotiations between Niles and the defendants, that such was the object and purpose of the parties. The evidence shows that Niles never delivered to defendants any of the leases or articles spoken of in their contract.
    The testimony of Porter was clearly incompetent as to anything before the death of Niles.
    This contract was a specialty, and Porter, the assignee, takes the position of Niles, with no greater rights.
    Mason, Ziegler & Bowser for defendant in error.
    Niles having executed the contract assigning the leases and a mortgage upon all his real estate, which the defendants put on record, could have recovered from them. There is a sufficient description in the contract to convey the leases.
    January 2, 1882.
   Per Curiam:

We have carefully examined those parts of the charge of which the plaintiffs in error complain, and think that the law of the case was correctly stated by the learned judge. If, on the faith of the agreement executed by the defendants, Porter advanced the money, they could not as against him set up that the consideration was worthless or had not been received. The article was expressed to be for his security. As to the competency of Porter as a witness, whatever doubt might exist as to that, the error is cured by the uncontradicted evidence subsequently received by admission that Fulton, the cashier of the Sandy Lake Savings Bank, would testify. Fulton, beyond question, would have been a competent witness.

Judgment affirmed.


author: Per Curiam :

text:
    October and November Term, 1880,
    No. 155.
    Garrison versus Paul.
    1. There is no equitable doctrine which dispenses with the rule that a defendant’s right to set-off must be perfect at the time the suit is instituted.
    2. A surety has no action for contribution against his co-surety, either at law or in equity, until he is obliged to pay the debt.
    3. Therefore an offer by defendant in an action of debt to prove that plaintiff and defendant were both sureties for a third party, in a note upon which judgment was entered before the present suit was instituted, that since the present suit was commenced there had been a levy and sale of defendant’s goods under the said judgment, and that both plaintiff and the principal were insolvent at the time of the trial, was properly rejected.
    Error to the Court of Common Pleas of Greene County.

    Debt by David II. Paul against Daniel Garrison, commenced April 21st, 1876, upon an award of #arbitrators for the sum of $612.25, which award was made December 30th, 1875, in favor of the plaintiff' against the defendant.
    The pleas were payment, payment with leave, etc., and set-' off, with notice of special matter.
    Upon the trial in the Court below, before Willson, J.,the defendant offered the following testimony :
    “ Defendant offers to prove that the Farmers’ and Drovers’ National Bank, of Waynesburg,held a judgment-note against Jesse Steel, David H. Paul, and Daniel Garrison, for $800, dated November 2d, 1875, payable to said bank ninety days after the date thereof; that Jesse Steel was the principal debtor in said note, and that Daniel Garrison and David H. Paul were his sureties therein ; that on April 17th, 1876, the bank caused judgment to be entered on said note in this Court, No. 59 of June Term, 1876, and on the same day execution was issued thereon, No. 18 of June Term, 1876, which execution was, on the same day, placed in the hands of the sheriff, with the direction of the attorney of the bank to make the money off the defendant, Daniel Garrison ; that on April 22d, 1876, the sheriff, by virtue of the said execution, levied upon certain goods of the defendant, Garrison, and, after advertising, sold the same at sheriff’s sale on May 8th, 1876, for $1341, out of which proceeds the said judgment and execution were fully paid ; that at the maturity of said note Jesse Steel was insolvent, and has remained so, and that David H. Paul is also insolvent. This for the purpose of showing that there existed, at the time this suit was brought, such a liability from the plaintiff, Paul, to the defendant, Garrison, to contribute to the payment of that judgment, as constitutes an equitable defence in this suit to the extent of one-half of the amount collected off’ the defendant, Garrison, on said execution.”
    Plaintiff objected to this offer, and the Court sustained the objection. Whereupon defendant took an exception.
    October 14th, 1879, verdict for the plaintiff’ for $660.56, upon which judgment was subsequently entered.
    Defendant took a writ of error, assigning as error the rejection of the above testimony.

      Garrison and Knox for plaintiff in error.

      The judgment was entered, and execution was in the hands of the sheriff, before plaintiff brought this suit, but the levy and sale were made afterwards. The offer was to prove the liability of plaintiff and the fact of the insolvency, at the time of the trial, of both Steel and plaintiff. Unless defendant can set-off his claim, he is without remedy.
    Equity will, under special circumstances, allow set-off where none can be admitted at law : Wrenshall v. Cook, 7 Watts, 464 ; Waln v. Hewes, 5 S. & R. 470 ; Rawson v. Samuel, 1 Craig & Phillips, 161 ; Waln’s Assignee v. Bank of North America, 8 S. & R., 88 ; Ryall v. Rowles, 1 Vez., 375. May we not conclude that the liability which the plaintiff and defendant assumed to each other when they became co-sureties, which liability existed at the time of suit, is within the meaning of the word bargain used in the defalcation act ? Agnew v. Bell, 4 Watts, 31; Dunlop v. Speer, 3 Binney, 169 ; Heck v. Shener, 4 S. & R., 249.
    Defendant’s claim to relief rests upon the equity of a surety, that equity being fortified by the fact of plaintiff’s insolvency.
    It has been held that insolvency furnishes equitable ground for chancery interference to compel set-off: Simson v. Hart, 14 Johnson, 63 ; Sewall v. Sparrow, 16 Mass., 24 ; Lyman v. Estes, 1 Greenl., 182; Peters v. Soame, 2 Vern., 428 ; Smith v. Felton, 43 N. Y., 419 ; Brewer v. Norcross, 2 C. E. Greene, 219; Reppy v. Reppy, 46 Miss., 571; Field v. Oliver, 43 Mo., 200 ; Hamilton v. Van Hook, 26 Tex., 302 ; Riddick v. Moore, 65 N. C., 382.
    The doctrine of equitable set-off is enforced in this State: Beaver v. Beaver, 11 Harris, 167 ; Thompson v. McClelland, 5 Casey, 475; Croft v. Moore, 9 Watts, 453 ; Fleming v. Beaver, 2 Rawle, 128; Lathrop & Dale’s Appeal, 1 Barr, 512; Gossin v. Brown, 1 Jones, 527; Springer’s Adm’rs v. Springer et al., 7 Wright, 518; Mosier’s Appeal, 6 P. F. Smith, 76 ; and Hess’s Estate, 19 Id., 272.

      C. A. Black for defendant in error.
    A set-off will not be allowed of a debt or claim which did not exist at the time the plaintiff brought his suit. Defendant must be able to show that the claim was then his, and that he had a right of action upon it against the plaintiff: Morrison v. Moreland, 15 S. & R., 61 ; Stewart v. Insurance Co., 9 Watts, 126 ; Huling v. Hugg, 1 W. & S., 418.
    It must be complete when the action was instituted: Pennel v. Grubb, 1 Harris, 552; Smith v. Ewer, 10 Harris, 116. Equity follows the same rule as to set-off: Van Beuren v.
      Van Gaasbeck, 4 Cowen, 496 ; Duncan v. Lyon, 3 Johnson Ch. Rep., 351 ; Dougherty v. The Bank, 9 W. N. C., 1.
    There is no mutuality between plaintiffs claim and the demand proposed to be set-off. The distinction between the rights of a surety and his principal, and the right of a surety against his co-surety is obvious. A surety is without remedy against his co-surety until he has paid more than his share of the debt.
    November 25th, 1881.
   Per Curiam :

It is certainly well-settled law that a defendant’s right to a set-off must be perfect at the time the suit is instituted. We know of no doctrine of equitable set-off which dispenses with this rule. A surety has an action against his principal before being actually compelled to pay the money, because he could file a bill in equity for indemnity. But there can be no action for contribution between co-sureties, either at law or in equity, until the surety is obliged to pay the debt.

Judgment affirmed.


author: Green, J.

text:
    October and November Term, 1881,
    No. 5.
    Appeal of Samuel Plumer et al.

    1. In proceedings upon a petition for the payment of arrears of dower, it appeared that subsequent to these arrears becoming due, a mortgagee of the land had caused it to be sold by the sheriff, and had become the purchaser; and the petitioner had excepted to the acknowledgment of the sheriff’s deed, whereupon the Court decided as follows: The Court being of opinion as claimed by attorney for plaintiff that the widow’s dower is not discharged by sheriff’s sale, it being an interest in land not affected by sale, exceptions dismissed. Held, that these facts alone did not estop the purchaser who was the respondent from claiming exemption of the land from arrearages.
    2. If it were true that the counsel for the respondent and the Court below in the proceedings upon the mortgage entertained an erroneous opinion as to the discharge of the arrears, an element of estoppel would not necessarily arise.
    Appear of Samuel Plumer and T. M. Jones from the decree of the Orphans’ Court of Allegheny County, sustaining exceptions to the report of an auditor, appointed to ascertain the facts and report the same, and his opinion, in the matter of the petition of Maria McFarland for the payment of arrears of dower.
    The material facts appearing before the auditor were as follows:
    John McFarland died intestate, December 10th, 1861, seized in fee of a tract of land now the Twentieth and Twenty-second wards of the city of Pittsburgh, leaving surviving him a widow, the petitioner, and three daughters. Under partition proceedings in the Orphans’ Court, in 1867, Sarah D., one of his daughters, was allotted a certain purpart of the estate, containing 14 acres and 49 perches, subject to the annual payment of the sum of $500.71 to the petitioner as her dower interest. Sarah D. McFarland married Dr. A. M. Barr, and she and her husband divided her purpart into lots. Subsequently they executed a mortgage upon lots Nos. 1 and 15, and on parts of lots Nos. 2, 3, 6, 16, and 17, to Samuel Plumer. Under proceedings upon this mortgage the lots embraced in it were sold by the sheriff, December 7th, 1877, to Plumer, the mortgagee, for $450.
    The petitioner claimed upon these lots, as well as others, six instalments of dower, falling due November 30th, 1872, 1873, 1874, 1875, 1876, and 1877.
    It was contended on behalf of Plumer and his vendee, T. M. Jones, who had purchased lot No. 1, and parts of lots No. 2 and 3, June 18th, 1880, that these arrears of dower had been discharged by the sheriff’s sale.
    Counsel for petitioner offered in evidence the judgment of Samuel Plumer against A. M. Barr and wife, at No. 521, September Term, 1877, Lev. Fa. No. 416, September Term, 1877, Al. Lev. Fa. No. 296, December Term, 1877, showing sale of the property thereon December 7th, 1877, to plaintiff for $450.04, which was applied to costs and taxes; that December 17th, 1877, Maria McFarland excepted to the acknowledgment of the sheriff’s deed, and on January 12th, 1878, on Argument List No. 6, page 205, the Court decided, the Court being of opinion, as claimed by attorney for plaintiff, that the widow’s dower is not discharged by sheriff s sale, it being an interest in the land not affected by sale, exceptions dismissed. He also offered the entire record and proceedings in that case in evidence, and claimed that Plumer was estopped from, denying the petitioner’s right to recover against the property purchased by him at the sheriff’s sale.
    The auditor found, inter alia, that these facts did not constitute an estoppel, and awarded accordingly.
    The petitioner excepted, inter alia, to this finding.
    The Court below sustained the exception, saying, inter alia:

    “ There are special circumstances in the sale to Plumer which give rise to an intervening equity in favor of the widow, and prevent the divestiture of the arrearages of dower as respects the lot purchased by him. The effect of the proceeding on the application of the widow was to leave the arrearages undisturbed by the sale. That' application having been dismissed upon the express ground that they were not divested, it must be conclusively presumed that the sale would have been set aside had the Court been of opinion that the arrearages were divested by operation of law. The equities were all in favor of the widow and would no doubt have prevailed. There can be no doubt that a sheriff’s sale may be made expressly subject to a lien which would otherwise be divested. Tower’s Appropriation, 9 W. & S., 103; Zeigler’s Appeal, 35 Pa. St., 173. Whether the condition be imposed when the bid is made, or before the delivery of the deed, by the proper authority, can obviously make no difference. The purchaser is not prejudiced. He is in no worse position after than before the sale is consummated. Mr. Plumer had held his moi’tgage subject to the payment of the arrearages of dow’er, and he knew when he accepted the deed that they were still unpaid. It is contrary to morality as well as sound policy to permit a party to avail himself of a particular point in a case, and afterward take a position diametrically opposite in another, merely because it may be in his interest to deny what he has most solemnly asserted at another time and for another purpose.’ Goodman v. Losey, 3 W. & S., 529. Are we to allow the solemn assertion of a party made in a judicial proceeding when the matter asserted is for the interest of that party, and when the object in making it has been accomplished’, turn around and assert its non-existence in another case with the same party, and by that means bind him to a position which he otherwise could have got rid of by pursuing his legal remedies ? This would be manifest injustice, and contrary to every principle of law.’ Baily v. Baily, 44 Pa. St., 274. Estoppels are sometimes said to be odious, and it has been affirmed that there is no such thing as an equitable estoppel. But the doctrine of election, which prevents a party from claiming in repugnant rights, and which has been advantageously introduced into courts of equity, is manifestly an extension of the principle. In courts of law they are, for the most part, reconcilable to the purest morality, and when they produce neither hardship nor injustice,' they merit indulgence, if not favor. The conclusiveness of judgments which conduces so essentially to peace and repose has no other foundation. The plaintiff in error had the benefit of the award as far as it would serve him, and shall not now disaffirm his solemn act in a court of record.’ Martin v. Ives, 17 S. & R., 364, per Gibson, C. J.”
    Plumer and Jones then appealed, assigning as error that the Court erred in ruling as matter of law as above set forth.

      Sutton and Plumer for appellants.

      The Court assumed that the attorney for Plumer claimed at the time the exceptions were argued that the arrearages of dower were not divested by the sale.
    A party is not to be estopped by questions of law propounded and argued by counsel: Dungan v. American Life Insurance Co., 52 Pa. State Reports, 253.
    As to estoppel counsel cited: Commonwealth v. Moltz, 10 Barr, 527; Eldred v. Hazlett’s Adm’rs, 9 Casey, 307; Helser v. McGrath, 2 P. F. Smith, 534; Miranville v. Silverthorn, 12 Wright, 149; Dezell v. Odell, 3 Hill (N. Y.), 215; Bispham’s Eq., Sec. 288.

      Bruce and Negley for appellees:
    Tower’s Appropriation, 9 W. & S., 103 ; Zeigler’s Appeal, 35 Penna. St., 173 ; Goodman v. Losey, 3 W. & S., 529; Baily v. Baily, 44 Penna. St., 274 ; Taylor v. Parkhurst, 1 Barr, 197; Spaulding v. Eimers, 3 Pittsburgh Rep., 306 ; Martin v. Ives, 17 S. & R., 364.
   The opinion of the Court was delivered November 7th, 1881, by

Green, J.

We find ourselves unable to sustain the judgment of the learned Court below in this case, on account of the absence of testimony necessary to make out an estoppel. It is the only question in the case, and the conclusion of the Orphans’ Court was founded upon a single piece of testimony. There is no doubt whatever that the arrearages of dower due to Mrs. McFarland were discharged by the sheriff’s sale under the Plumer mortgage. This sale being for a small sum, an application was made on behalf of the widow to the Court of Common Pleas to set it aside, and a bid of four thousand dollars was made if the property should be resold.

The Court, however, refused tihe application, and dismissed the exceptions to the sale. The only evidence of the action of the Court and the reason for it, to be found in this record, is an entry on the argument list in the following words: “ The Court being of opinion, as claimed by attorney for plaintiff', that the widow’s dower is not discharged by sheriff’s sale, it being an interest in the land not affected by sale, exceptions dismissed.” If by this was meant that the principal sum of the dower was not discharged, it was correct. The dower itself and all future accretions of interest remained, and were unaffected by the sale. If, however, it was intended as an expression, to the effect that the arrearages of annual payment past due were discharged, it was a mistake. Dickinson v. Beyer, 6 Norris, 274, is an emphatic determination that arrearages of interest due upon the principal sum of a widow’s dower at the time of a sheriff’s sale of the land subject to the dower are discharged by the sale. But even if it were true that both the counsel for Plumer in the proceeding on the mortgage, and the judge of the Common Pleas, entertained an erroneous opinion on this subject, it by no means follows that any element of- estoppel would necessarily arise from that circumstance against Plumer, to prevent him from subsequently asserting the exemption of the land from the arrearages. It does not appear that either he or his attorney agreed that if the sale was not set aside Plumer would pay the arrearages, or would take title subject to their payment. Yet something of that kind, or at least an assertion to that effect to the Court, and the refusal of the Court to set aside the sale in consequence of such assertion, would be requisite to estop Plumer from now asserting the discharge. The subject is one entirely susceptible of proof by witnesses who are now living and competent to testify, but no such persons have been examined or offered for examination, and of anything like these facts there is absolutely no proof whatever on this record, and of course we cannot infer it. A mutual mistake as to the law, which is equally open to both parties, cannot raise an estoppel : Dungan v. American Life Ins. Co., 2 P. F. S., 253. In the present case it is not at all clear, from the entry given in evidence, that the judge of the Common Pleas meant to say anything more than that the principal fund of the dower was not discharged. That is the plain meaning of the words of the entry, and we cannot give them any larger meaning without supposing him to have made a mistake as to the law, and that we have no right to do. In either aspect of the case, therefore, it is impossible to raise an estoppel.

Decree reversed, at the cost of the appellee, and record remitted for further proceedings.

Gordon, J., and Sterrett, J., dissent.