author: Chief Justice Agnew

text:
    Lynch versus The Commonwealth.
    A prisoner on trial for larceny, being on bail, voluntarily left the court room during the absence of the jury, while deliberating over his caso. The jury returned a verdict of guilty, and when the prisoner was called and failed to reappear, the verdict was received and recorded and sentence pronounced in his absence. Ifeld, to be no ground for a motion in arrest of judgment.
    November 21st 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkev, JJ. Woodward, J., absent.
    Error to the Court of Quarter Sessions of Butler county : Of October and November Term 1878, No. 263.
    William Lynch was indicted and tried for larceny. While the jury were out to determine upon their verdict, the defendant, who was on bail, left the court-room. The jury returned a verdict of guilty, and the defendant having been called and failing to appear, the verdict was received and recorded. The defendant’s counsel then made a motion in arrest of judgment on the ground that “ the record in this case shows the fact that at the time the jury came into court to return their verdict, and at the time they rendered the same, and at the time the verdict was received and is recorded by the court, the defendant was not in court but was absent therefrom. That therefore the verdict thus rendered, received and recorded was incomplete, invalid and void, and judgment cannot be pronounced thereon.”
    The court overruled the motion and pronounced sentence, which action was assigned for error by defendant, who took this writ.

      S. F. Bowser and J. S. Bowman, for plaintiff in error.
    The verdict, whatever may be its effect, must, in all cases of felony and treason, be delivered in the presence of the defendant in open court, and cannot be either privately given or promulgated while he is absent: Coke Litt. 237 ; 2 Just. 117 ; Sir Thomas Raymond 198; 2 Hale 300; 2 Hawk. 47, sect. 2 ; 4 Bl. Com. 340; Bac. Abr., tit. Verdict; Burns’s Justice, tit. Juror; Bishop on Crim. Law, vol. 1, p. 560; Chit. on Crim. Law 600; Clark v. The State, 4 Humph. 254; Sneed v. The State, 5 Ark. 431; Prine v. Commonwealth, 6 Harris 103.
    [Chief Justice Agnew. — Was not this rule applied only in cases tried before the Oyer and Terminer, where the jurisdiction grows out of the fact that they were capital cases ? Such was the case of Prine v. Commonwealth. I do not remember a ease in this state of an offence, triable at Quarter Sessions, where that principle has been laid down. I do not say that the common-law principle will not apply but I merely make this suggestion.]
    Mr. Bowman. — It has been so asserted in some of the cases we have cited, but it is also said that the principle we contend for has been extended to all kinds of cases, and we claim that the rule admits of no exception.
    [Chief Justice Agnew. — Have you found any English case that applies this rule to cases triable in the Quarter Sessions ? It must be remembered that in Blackstone’s time one hundred and sixty- ■ eight cases were triable in the Oyer and Terminer because punishable by death.
    Justice Mercur. — Suppose the defendant persists in his absence, what would you do ?
    Justice Agnew. — I suggest a bench-warrant; but if he is brought in he can again be released upon a bench-warrant.
    Justice Mercur. — The recognisance provides that the defendant shall continue in court until the end, otherwise how could it be forfeited ?
    Chief Justice Agnew. — The practice of the court is strong evidence of what the law is. Have you ever heard in a case of a' bawdy-house or misdemeanor that the defendant was called in to hear the verdict?-
    Justice Mercur. — In what respect has the defendant been in- . jured when he goes off and forfeits his bail by not being present when his sentence is pronounced ?]
    Mr. Bowman. — The law presumes an injury when the provisions of the law are not complied with.

      [Chief Justice Agnew. — It must not be forgotten that larceny is a misdemeanor, and is always tried in the Quarter Sessions. It is not ranked as a felony. I do not see either how a man may be sentenced if he chooses to be absent.]
    Mr. Bowman. — If he can waive a right at any stage of the trial he may waive it all through.

      W. A. Borquer, District Attorney, and Clarence Walker, for the Commonwealth.
    The defendant not being in custody, his voluntary absence was a waiver of his right to be present at the rendering of the verdict: Price v. The State, 36 Miss. 531.
   Chief Justice Agnew

delivered the opinion of the court, January 6th 1879.

The question in this case is, whether upon the trial of a defendant for larceny, it is error to take the verdict of the jury, when he is not present, though he is out on bail, is voluntarily absent, and is called when the jury are ready to deliver their verdict.

In the note at page 602 of the 7th volume of Bioren’s edition of the Laws, it is said that the Act of 31st May 1718, is the basis of our criminal law. In the note to the act itself the same remark is quoted from Mr. Bradford’s essay on the criminal law of this state (vol. 1, p. 105). Justice Coulter, adopts this statement in Dunn v. The Commonwealth, 6 Barr 385. Though much of this act has been altered and supplied, some yet remains, and Justice Coulter says in that case that as to the judgment and sentence in criminal cases the act is still in force. These references are made because of the important bearing the Act of 1718 has upon the question before us.

It is well known that William Penn was opposed to the infliction of capital punishment except in the single instance of wilful murder, and beginning with temporary laws, he endeavored to reduce the punishment of all other offences, capital by the laws of England, to low'er grades. His efforts were fruitless, horvever, for when these laws were enacted permanently, they were repealed by the queen in council. This led, as the preamble to the act clearly indicates, to its passage. It not only enacted capital punishment for a number of offences, but declared in the 6th section that “ when any persons shall be so as aforesaid convicted or attainted of any of the aforesaid crimes, they shall suffer as the laws of Great Britain now do, or hereafter shall, direct and require in such cases respectively.” Thus in the same year the Proprietor died the laws of his province became a code of blood for the following offences: treason, murder, robbery, burglary, rape, sodomy, buggery, arson, malicious maiming, manslaughter by stabbing, concealing by the mother the death of her bastard child, witchcraft and conjuration, and every felony (except larceny) on a second conviction.

The third section declared, “ that the inquiries and trials of all petit treasons, misprisions of treason, murder, manslaughter and homicides, and all such other crimes and misprisions as by this act or any other Act of Assembly of this province are or shall be made capital or felonies of death, which have been or shall be done, committed, perpetrated, or happen within this province, shall be as by this act is directed.” The 6th section then directs judgment and sentence to be pronounced by the justices of the court according to the manner, form and directions of the laws of England, and execution to be awarded accordingly. A supplement to this act, passed February 26th 1767 (2 Sm. Laws, 274), enacted that the arson of any dwelling-house, house, barn or outhouse having hay or corn therein, and the counterfeiting of gold and silver coin coined in this province, should be felonies of death without benefit of clergy.

These laws became the foundation of the exclusive jurisdiction of the Court of Oyer and Terminer in capital cases, which has since continued. But simple larceny never was a crime triable in the Oyer and Terminer exclusively, and in the Act .of 1718, it stood on so low a footing that the first offence was punishable only with restitution of the value of the goods, payment of the costs and expenses of the owner, a fine of double the value of the goods, and a whipping not exceeding twenty-one lashes; the commitment to gaol being only till satisfaction of these should be made. The punishment for a second offence was the same, excepting that the number of lashes should be not less than twenty-one, and not more than forty. As a consequence, simple larceny, whether grand or petit, has always been triable in the Court of Quarter Sessions in the same manner as misdemeanors. So the mayor, recorder and aider-men of Philadelphia (viz.: the Mayor’s Court), had the same jurisdiction to try and punish all larcenies, forgeries, perjuries, assaults and batteries, riots, routs and unlawful assemblies, and all other offences which have been committed or shall be committed, within the said city, which would be cognisable in any Court of General Quarter- Sessions of the Peace, of or for any county within this Commonwealth,” &c.

The fact that larceny is'Called a felony is of no importance. Felony, as a term, is incapable of any definition, and is descriptive of no offence. Indeed its origin seems to have been a puzzle to law writers. According to Sir William Blackstone, it now imports an offence which occasions a total forfeiture of either lands or goods, or both, at common law, and to which capital or other punishment may be superadded, according to the degree of guilt: 4 Com. 95. And -even this forfeiture was abolished by the Constitution of this state, of 1790, except during the life of the offender: art. 9, § 19. It is, therefore, well said in the note, at page 692, in the 7th volume of Bioren’s ed. of the Laws, that the term felony has become useless and unintelligible, for it seems to mean something, when in truth it conveys no distinct ideas. It comprehends, says the annotator, two descriptions of punishment, the one capital, with the forfeiture of lands and chattels; the other, not capital with forfeiture of chattels only, and the form of burning in the hand, to which imprisonment, &c., may be added. These notes have the weight of authorities by the recommendation of Chief Justice Tilgiiman, and Justices Duncan and Gibson, who say, in their certificate of examination of the Gth and 7th vols. of these laws, that the notes on the criminal laws are the fruits of much labor and research, and cannot fail to be of general utility : vol. 7, p. 18. •

Thus it appears that larceny, while termed a felony, is not, in the light of legal history, one of those offences, which, in this state, were tried in the solemn forms of the courts of England, required by the Act of 1718, to be adopted in cases then declared to be capital. This will enable us to understand better the force of the expressions of Chief Justice Gibson and others in the cases cited in the argument. Thus in Prine v. The Commonwealth, 6 Harris 103, upon an indictment for burglary, Chief Justice Gibson said: “Never has there, heretofore, been a prisoner tried for felony in his absence. No precedent can be found in which his presence is not the postulate of every part of the record. He is arraigned at the bar, he pleads in person at the bar, and if he is convicted he is asked at the bar what he has to say why judgment should not be pronounced against him.” In these observations he evidently refers to the trial of cases once capital. It is to such also Justice Coulter refers, as evidenced by his language — “ trials that affect life”— “ Crimes affecting life or limb (when) the prisoner must be present, when the evidence is given in during the trial, and when the verdict is returned.” We are not left to mere inference as to the meaning of Chief J ustice G rBSON, for we have his opinion long before, in the well considered case of Jacobs v. The Commonwealth, 5 S. & R. 315, in which he held that upon an indictment for larceny it is not necessary that arraignment should appear of record. All that appeared was the plea of not guilty endorsed upon the indictment. He said there, The entry of the arraignment, is the record of the defendant’s appearance in court for the purpose of being tried, and is necessary only when he must appear in person. In all misdemeanors a defendant may appear and plead by attorney; but as no one can be convicted of a capital offence in his absence, it necessarily results that in trials for offences of that grade, it should appear by the record that the defendant was personally present.” He then refers to the Act of 1718 as the groundwork of our present code, and the practice under it in capital cases, remarking that the course of trial in such cases is still the same in these cases, adding that with us larceny never was capital. The sentence in that case was therefore affirmed.

Thus larceny by this decision is taken directly out of the list of offences in which arraignment must affirmatively appear upon the record. When we consider also comparatively the greater degree of moral turpitude in those high misdemeanors, such as perjury, forgery, bigamy, &c., wherein the defendant may appear and plead by attorney, it cannot be doubted, even if arraignment be necessary as a fact in a trial for larceny, that mere voluntary absence at the rendition of the verdict, by one out on bail, who has appeared, and been tried regularly, is not a. fatal error. He loses no valuable right thereby, for he may move for a new trial, or in arrest of judgment, and cannot be sentenced until he appears. He cannot move in arrest of judgment because the arraignment does not appear of record, for the entry is not essential to the regularity of the record, as held, in Jacobs v. The Commonwealth. If essential he can take advantage of the want of arraignment only by a motion for a new trial. Presence at the verdict is clearly less important. In whatever way we view the ease, voluntary absence when the verdict is received is an error of which he cannot complain.

We must not overlook in this connection the constant amelioration of the penal code which began in 1786. The last act of severity was that of 8th March 1780, 1 Sm. Laws 498, which took away the benefit of clergy from robbery from the person whether on or off the highway. Then came the Act of 15th September 1786, which began amelioration by the substitution, for the penalty of death, of imprisonment at hard labor, with forfeiture of estate, real and personal. Since that time a gradual mitigation has taken place in the trial and punishment of offenders, until now' the criminal code, consisting of the two Acts of March 31st 1860, has placed the trial of offences on a more reasonable basis than when they wrnre punished with great severity.

Therefore when we consider that larceny has always been a bailable offence, even before a justice of the peace (except in the-case of horse-stealing), that its trial is put on the same footing with misdemeanors in the Quarter Sessions and Mayors’ Courts, that in misdemeanors the defendant may appear and plead by attorney, there is no reason for holding that mere voluntary absence at the rendering of the verdict, by one out on bail, who is called and does not appear, is a ground for reversing a sentence regularly passed. One so absent waives his privilege. What can be done but to call him ? Is the jury to be held until he appears, and if so how' long ? Not being in custody he cannot be had. If the jury be discharged what is the legal consequence ? Is it a mistrial, or can he plead the discharge in bar ? Is his forfeiture of bail a legal substitute for conviction ? And if the discharge be no bar, the offence being a bailable one, how will a similar result be prevented at the second or any subsequent trial ? Surely the interests of justice cannot be so trifled with. We are of opinion there is no error in this record, and the sentence must be affirmed.

Sentence affirmed, and it is ordered that the record be remitted to the Court of Quarter Sessions of Butler county, with instruction to bring in the defendant, and to carry the sentence of that court into effect.

Sharswood, J., dissented.


source: Caselaw Access Project

author: Per Curiam.-

license: Public Domain

text:
    Hogg’s Appeal.
    1. Where one is a debtor to a railroad company for a subscription to its stock, to a greater amount than his claim against said company, he cannot ask the payment of his debt in the distribution of the proceeds of a sheriff’s sale of the property and franchises of the road, on a judgment of another creditor.
    2. The sale by the sheriff of the railroad property and franchises, did not pass to the purchaser the debts or mere cliosCs in action due to the company from others.
    November 22d 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Appeal from the Court of Common Pleas of Fayette county: Of October and November Term 1878, No. 228.
    The Brownsville Railway Company was organized and incorporated under the Railroad Law of April 4th 1868, and the supplement thereto. On September 22d 1875, George E. Hogg subscribed his name to the articles of association of said company, and took two hundred shares of the capital stock of said corporation at §50 each, amounting to the sum of §10,000. The capital stock was duly called in by the board of directors of said company, and Hogg made payments on his subscription from time to time until he had paid §4500 on the same. On the 14th of Nouember 1876, the directors passed a resolution authorizing their treasurer, W. S. Craft, to borrow §2500, and Hogg loaned the company that amount by making two promissory notes, one for the sum of §1500, and the other for §1000, upon which notes the treasurer obtained the money. The notes were made by Hogg, payable to the order of Craft, as treasurer of said company, and he, as treasurer, endorsed them, and had them discounted at Bank of Brownsville, Pa. These notes were renewed from time to time, and in the meantime Hogg paid the treasurer §500, and he, as the treasurer, paid this sum on the §1000 note, and allowed Hogg a credit of that amount on his unpaid subscription, and the §1000 note was then renewed for §500, and from time to time thereafter, and also after the road was sold until Hogg lifted and paid it. The $1500 note was renewed several times before and after the sale of the road until Hogg lifted and paid it also. No action was ever taken by the board of directors in regard to the payment of this loan, nor was there provision made in any way for its settlement. On the 5th of February 1878, the sheriff of Fayette county, by virtue of an execution issued on a judgment obtained by Campbell Brothers against the said company, in the Court of Common Pleas of said county, offered the railroad for sale and sold the same for $16,975, and on the--of March 1878, a deed for said railroad to Charles E. Speer was duly acknowledged by the sheriff-and confirmed by the court; and on March 28d 1878, the sheriff, on leave given, paid into the court $16,889.46, the money made from sale of railroad after deducting the costs on the writ, and on the same day the court appointed an auditor to ascertain claims against the company and report distribution of the funds made from the sale of the railroad. Hogg appeared before the auditor and claimed $2000, with interest from December 8th 1877, being the balance due him on the loan he had made to the company. The other creditors objected to the - allowance of his claim for the reason that Hogg owed the company $5000 on his subscription to the stock of the same at the time the road was sold out by the sheriff; and that the $2000 should have been applied to his subscription, and that the auditor should treat it as having been applied. The auditor allowed him to share in the fund, to which allowance exceptions were filed by some of the other creditors ; and on July 23d 1878, the matter came on for hearing on the exceptions in court, and the court directed that the exception filed to the claim of George E. Hogg, as allowed by the auditor, be sustained, and that the distribution reported by the auditor be corrected by striking out the amount appropriated to the claim of Hogg, and that said amount be distributed pro rata among the claimants returned by the auditor, so far as the same -was necessary to pay their claims. From this decree Hogg took this appeal.

      W. G-. Gruiler and Daniel Kame, for appellant.
    The money represented by the note was a loan to the company, without any agreement whatever that it should be'applied as a credit on this subscription to the stock of the campany. A subscription to a railroad corporation is a debt of a different nature entirely from a common debt. The latter arises from the simple agreement of one party to pay another a certain sum of money for value received, and the former is an agreement between several persons to pay so much money into a common fund. The debt of the corporation could not be applied as a. credit on the subscription to the stock of the same, without the consent of the corporation by the board of directors, which consent had not been obtained in the case at issue.
    Moreover there was no equitable right on the part of the creditors of the railroad company to demand such an application of the debt of the company, because the unpaid subscriptions to the stock of the company passed to the purchaser at the sheriff’s sale by virtue of the sale of the road and its franchises, free from any and all claims that the delinquent subscribers might have against the company; and having passed and vested in the purchaser from the time of the sale, the creditors had no power or control over it thereafter, and consequently could not set off the unpaid subscription of Mr. Hogg against the claim which the company owed him, because if they were allowed so to do, it would infringe on the rights which the purchaser acquired by the sale, which rights, in the case at issue, were acquired by the purchaser, Mr. Spear, before any demand by the creditors that the set-off should be allowed.

      Boyle Metzerat and Minor rf- Parshall for appellees.
    Hogg was never a creditor of the company, the money he had advanced to the company being merely payment of past due indebtedness upon his subscriptions to the stock; but even if it were in the nature of a loan, he could not, in equity, carry off a portion of the fund to the prejudice of creditors, and at the same time keep all that he ow'ed to the company. If he had brought suit against the company on his alleged loan, the amount unpaid might have been set off, and in a sheriff’s distribution, which the law says is to be made upon equitable principles, the set-off was clearly proper. The purchase at the sheriff’s sale did not vest in the purchaser the debts due, unpaid stock subscriptions, or other choses in action of the company; but even if it did, the purchaser took subject to the sureties existing between the company and the stockholders.
   The judgment of the Supreme Court was entered November 28th 1878,

Per Curiam.-

We think that in equity, while George E. Hogg is debtor for his stock to a greater amount than his claim against the railroad company, he cannot ask payment of his debt from it. The sale of the railroad property and franchises did not pass to the purchaser the debts or mere choses in action due to. the company from others. As between the company and a subscriber to stock, the subscription is a debt collectable by ordinary suit. The distribution was properly made according to the principles stated in Bayard’s Case, 20 P. F. Smith 453.

Decree .affirmed, with costs to be paid by the appellant, and appeal dismissed.


author: Mr. Justice Gordon

text:
    Appeal of Stoughton et al.
    A guardian has ordinarily power to lease any of his ward’s property of such character as makes it the subject of a lease; but without the approval of the Orphans’ Court he cannot dispose of any part of the realty. Oil is a mineral, and being a mineral, is part of the realty, and a guardian cannot lease the land of his ward for the purpose of its development, as it would, in eifect, be the grant of a part of the corpus of the estate of his ward.
    November 22d 1878.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Appeals from the Orphans’ Court of Butler county: Of October and November Term 1875, Nos. 110 and 130.
    These appeals were those of H. L. Taylor, John Satterfield, J. J. Yandegrift and George Y. Foreman, parties doing business as H. L. Taylor & Co., John Siggins, Peter Hutchinson, Peter Grace, William G. Stoughton and David C. Rankin, guardians of Lewis Brown and Minerva Brown, minor children of Josiah Brown, appellants, and James M. Lambing, John A. Lambing, A. L. Campbell and Robert L. Brown, appellees. And the appeal of H. L. Taylor, W. G. Stoughton et al., from the decree of the Orphans’ Court of Butler county, at No. 4, March Term 1874, made February 25th 1875, approving of a lease for oil purposes, made by' David C. Rankin, guardian of Lewis Brown and Minerva Brown, minor children of Josiah Brown, to A. L. Campbell and James M. Lambing, recorded in Article of Agreement book, No. 1, p. 390, Butler county, and vacating or annulling a decree made in Orphans’ Court, No. 36, June 1873, approving and confirming a lease of David Rankin, guardian, to W. G. Stoughton.
    At June Term 1873, David C. Rankin, the guardian of Lewis and Minerva Brown, mirior children of Josiah Brown, deceased, presented a petition to the Orphans’ Court of Butler county, praying the court to confirm a lease for twenty years of the lands of his said wards, containing about 100 acres, to W. G. Stoughton, for oil purposes. On June 11th 1873, the court granted the prayer of the petition, and a decree was made accordingly. This Stoughton lease was duly recorded, and subsequently Stoughton sublet a portion of the land to Peter Grace and Peter Hutchinson, and the balance to H. L. Taylor & Co. At March Term 1874, James M. Lambing, John A. Lambing, B. B. Campbell and R. L. Brown, presented a petition to the Orphans’ Court, which set forth that said David C. Rankin, guardian, had executed a lease to A. L. Campbell and James M. Lambing for forty acres of said 150 acres of land belonging to the heirs of Josiah Brown, deceased, for a term of twenty-one years, and for oil purposes, which lease, by assignments, was vested in the petitioners. That said lease was duly recorded in said county. That subsequently to the recording of said lease, said David 0. Rankin leased the whole tract aforesaid to W. G. Stoughton without reserving therefrom said forty acres leased to petitioners. That said Stoughton lease is recorded, and that Grace, Hutchinson and Taylor & Co. are now claiming under said lease, and denying the right of your petitioners to hold and enjoy the said forty acres, notwithstanding said parties had notice of petitioners’ lease before the taking of their lease, and that the lease of petitioners is much more beneficial to the Brown heirs than is the Stoughton lease. The petition then prayed for a citation to Rankin, Stoughton, Grace, Hutchinson and Taylor & Co., that the order approving the lease of Stoughton might be rescinded so far as it interfered with the lease of petitioners, and that the court should approve the lease of petitioners nunc pro tunc, as of the 4th of December 1871.
    A citation issued, and answer was made by Stoughton for himself and the others who held under him. Testimony was taken, and after argument, the court confirmed and approved'said lease to A. L. Campbell and J. M. Lambing, and vacated the part of the order made at June Term 1873, affecting said forty acres.
    From these decrees appeals were taken to the Supreme Court, the following errors being assigned :—
    1. The lease of Lambing and Campbell was forfeited long before the date of the original decree, and they had no interest at that time or title to lands within the Stoughton lease.

      2. By the acts and conduct of the appellees, they were estopped from setting up this alleged lease, and having the decree made in the Orphans’ Court, No. 4, March Term 1874, approving it nunc pro tunc.

    8. The original decree in this case having been made June 11th 1878, and the parties having entered into possession under it, and having expended large sums of money in developing said lease, on the faith of said decree, and a great length of time having elapsed before the vacation or revocation of the decree was asked for, and the lessees, Stoughton and those under him, having obtained vested rights under the said decree of June 11th 1873, the court had no power to revoke it.
    4. The decree was unauthorized, and could only be made on the petition of the guardian, and not in an adverse proceeding against him.
    The Supreme Court referred the cases to a master, to take testimony and report the facts, together with his opinion thereon, who reported, inter alia, that the lease to A. L. Campbell and J. M. Lambing was fairly obtained, and had its conditions been carried out, would have been beneficial to the Brown heirs, but that the lease was forfeited by the failure of said lessees to comply with its conditions. He, therefore, reported the following decrees:—
    “ In Ho. 110, of October and November Term 1875, appeal of D. Rankin et al. Appeal to the Orphans’ Court of Butler county, at No. 4, of March Term 1874.
    “And now, to wit: This cause came on to be heard in this court at this term, on appeal from the decree of the Orphans’ Court, in and for the county of Butler, and was argued by counsel; whereupon it is considered, adjudged and decreed, that the decree of the said court be reversed and set aside, and that the record in this case be remitted to the said court, with directions to dismiss the petition of James M. Lambing, John A. Lambing, B. B. Campbell and R. L. Brown, at the costs of the petitioners, and that the appellees pay the costs of this appeal.” And
    “ In No. 130, of October Term 1875, appeal of W. Gr. Stoughton. Appeal to the Orphans’ Court of Butler county, at No. 36, of June Term 1873.
    “And now, to wit: This cause came on to be heard in this court at this term, on appeal from the Orphans’ Court, in and for the county of Butler, and was argued by counsel; whereupon it is considered, adjudged and decreed, that the decree of the said court, made February 25th 1875, vacating in part a former decree, made in said case June 11th 1873, and taking off the confirmation of the lease by David C. Rankin, guardian of the minor heirs of Josiah Brown, deceased, so far as the same might affect the forty acres of land theretofore leased by said guardian to A. L. Campbell and James M. Lambing, be reversed and said aside; and that the appellees pay the costs of this appeal.”
    Forty-six exceptions were filed to the report of the master, all of which the master overruled.

      John M. Thompson and Charles MeCandless, for appellants.— The original decree in this case having been made June 11th 1873, and the parties, William Gr. Stoughton and his lessees, having entered into possession under it, and having expended large sums ' of money in developing said lease, on the faith of said decree, and a great length of time having elapsed before the vacation or revocation of the decree was asked for, and the lessees, Stoughton and those under him, having obtained vested rights under the said decree of June 11th 1873, the court had no power to revoke it.
    The lease of Campbell and Lambing of December 4th 1871, should not have been approved nunc pro tunc, because the guardian did not join in the petition therefor, but was made a respondent thereto; and secondly, their lease had been forfeited by a failure to comply with its conditions. • But whatever the law may have been prior to the Act of April 18th 1853, Purd. Dig. 1242, since the passage of that act a guardian can make a lease of his ward’s land only with the sanction of the Orphans’ Court, and after the court is satisfied that it is to the interest of the minor that the lease should be made.

      Edward S. Golden and L. Z. Mitchell, for appellees.
    The master found the lease was fairly obtained and beneficial to the minors. In such case wo think the guardian’s act was valid, without the intervention of the Orphans’ Court: Carskadden v. McGhee, 7 W. & S. 140; Bonsall’s Appeal, 1 Rawle 274; Twaddle’s Appeal, 5 Barr 15.
    The court had the express power to make the decree prayed for, under the Act of 13th April 1854, Purd. Dig. 1246. By that act it is provided that wherever the court had the power to authorize the leasing in the first instance, and such leasing has taken place without this authority, the court may approve, ratify and confirm such leasing, and the effect of such subsequent action is equivalent to a previous authority. This power is unlimited either as to time or circumstances, and 'may be exercised in all cases and at any time. But even without the aid of this Act of Assembly, the power to make the decree prayed for is inherent in the court: Shepherd’s Case, 27 P. F. Smith 303-4-5; Lane v. Nelson, 2 W. N. C. 216 ; Dougherty’s Case, 19 P. F. Smith 293; Fitzgerald v. Stewart, 3 Id. 343.
    It follows, as a matter of course, that if the court had the power to approve, ratify and confirm the lease of Campbell and Lambing, it had the power to vacate the approval of Stoughton’s lease so far as it interfered with the prior lease.
   Mr. Justice Gordon

delivered the opinion of the court, January 6th 1879.

A guardian has, ordinarily, power to lease any of his ward’s property that is of such character as makes it the subject of a lease, but without the approval of the Orphans’ Court ho cannot dispose of any part of the realty. Oil, however, is a mineral, and being a mineral is part of the realty: Funk v. Haldeman, 3 P. F. Smith 229.

In this it is like coal or any other natural product which in situ forms part of the land. It may become, by severance, personalty, or there may be a right to use or take it originating in custom or proscription, as the right of a life-tenant to work opened mines, or to use timber for repairing buildings or fences on a farm, or for fire lote. Nevertheless, vrhenever conveyance is made of it, whether that conveyance be called a lease or deed, it is, in effect, the grant of part of the corpus of the estate and not of a more incorporeal right. In the case above cited, this is said to be so as to leases of coal lands for the purpose of mining, and there is no reason why the same doctrine should not apply to oil leases.

Not infrequently the oil forms by far the most valuable part of an estate, and to permit a guardian to dispose of it at will and without security, would often lead to consequences disastrous to his wards. Now Rankin’s lease to Campbell & Lambing, as well as that to Stoughton, was, in fact, a sale of all the oil within the limits of the leased territory. Its terms, inter alia, were, “the party of the second part to have the sole and exclusive right to bore and dig for oil in said lot, and gather and collect the same therefrom, for the term of twenty-one years from the date hereof.” This certainly amounts to an absolute sale of all the oil contained within the land described in the lease, subject only to the royalty therein provided for. If we suppose a similar lease of timber growing upon, or coal or other mineral found in land, we can determine without hesitation that it is hut an attempt to dispose of the realty, and so beyond the power of a guardian. As oil is not less part of the realty than timber and coal and not less valuable, there is no reason why it should not also come within the protective and supervisory powers of the court.

It follows, that the lease to Campbell & Lambing Avas of no force, bound nobody and was notice to nobody until properly approved. By force of the 3d sect, of the Act of 13th of April 1854, prima facie the decree of the Orphans’ Court rendered this lease effective from its date, and if allowed to stand, it settles the controversy betAveen these parties definitely in favor of the appellees. Tavo substantial reasons are urged Avhy this ought not to be permitted; first, it interferes with the vested rights of other parties ; second, it Avas made without the consent of the guardian. The Stoughton lease was approved, on petition of Rankin, June 11th 1873, whilst that of Campbell & Lambing was not approved until the 25th of February 1875. Not only so, but the court, at that time, vacated so much of the former decree as affected, the land embraced in the Campbell & Lambing lease. This Avas not done on the motion of the guardian or on the ground of fraud or mistake in the procuring or entering of the decree, but on the petition of the lessees alleging want of notice to them of the previous action of the court. This was wholly irregular, since, for such reason, the court had no poAver to vacate a decree regularly made some tAventy months previously. Supposing these parties to have been entitled to notice in order to make the confirmation of the subsequent lease binding on them, it but follows that without such notice the decree could not conclude them; it could only conclude the parties to it, hence, their rights were in no Avay jeopardized, and the court would certainly have exhausted its poAver in confirming their lease and so leaving them to settle their controversy, with Stoughton and his vendees, by an action of ejectment.

Rankin’s lease, however, amounted to nothing more than a mere proposition, from which, at any time before it received the approval of the court, he might recede. Campbell & Lambing knew they were dealing with a guardian, and they should have known that he could not, on his own motion, dispose of his ward’s propei’ty. They took nothing by their lease, and had no rights which were entitled to consideration in the confirmation of the subsequent contract. We will not say that a case might not occur where the court might approve a contract notwithstanding the dissent of the guardian, but wo do not think this such a case. According to the finding of the master, Campbell & Lambing had, by their laches, forfeited their contract, so that, had it been originally binding, they were not entitled to have it enforced, and, consequently, Rankin, in making the lease with Stoughton, hut exercised a sound legal discretion which the court properly approved.

It is thus manifest, that on no point, found in this case, can the decrees under review be sustained.

It is ordered that the decree reported by the master for this, Stoughton’s Appeal, be adopted and entered as the judgment of this court.

Also, that the decree reported by the master for the case of Rankin’s Appeal, No. 119, October and November Term 1875, be accepted and entered as the judgment of this court.


author: Mr. Justice Merour

text:
    Miller versus Springer.
    An executor and legatee, who, in certain legal proceedings had, in an answer filed as executor, treated the land devised by the will as that of the testator, in an action of ejectment brought against him as an individual, was held to be estopped from setting up an adverse title against the estate. In a second ejectment against him, he sought to avoid the effect of this decision, by showing that he had not participated in a certain act of his co-executor in returning the land for appraisement, and that he had not in fact accepted the deed vesting title in himself when said answer was made. The court ruled the case on the authority of the first decision, and directed a verdict for plaintiff. Held, that this was not error.
    November 22d 1878.
    Before Agnew, C. J., Siiarswood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Fayette county: Of October and November Term 1878, No. 237.
    Ejectment by Jonathan D. Springer, one of the executors of the last will of Rachel Skiles, deceased, against Jacob B. Miller, another of said executors, who agreed in writing that the said action might he prosecuted by Springer alone, as though he was sole executor, in order to try the title to the property in dispute, which consisted of a certain tract of twenty-nine acres of land in Union township, Fayette county. Defendant pleaded “ Not guilty.”
    Both plaintiff and defendant claimed title under James Piper.
    The plaintiff’s paper title was made out as follows:
    1. Judgment of Rachel Skilos v. James Piper, at No. 179, October Term 1854, for §448.69. Entered September 18th 1854. Fi. fa. issued January 1st 1857, and levied on land in dispute. Inquisition held January 30th 1857. Venditioni exponas to June term, and land given to plaintiff, Rachel Skiles.
    2. Sheriff’s deed to Rachel Skiles, dated July 1st 1857, and acknowledged same day. Consideration, $500.
    3. Deed from Rachel Skiles to Jacob B. Miller, dated July 4th 1857. This deed is endorsed on sheriff’s deed, and for the consideration of $1, sets out that Rachel Skiles has “ assigned, released, and for ever quit-claimed unto him, the said Jacob B. Miller, his heirs and assigns, all my right, title, claim and interest in and to the within-described lots of ground,” &c. Acknowledged July 6th 1857, but never recorded.
    4. Deed of Jacob B. Miller to Rachel Skiles, dated September 12th 1857, acknowledged same day. This deed recites sale by Miller as administrator of Zadok Springer, deceased, to James Piper; sheriffs deed to Mrs. Skiles; that Mrs. Skiles had “ assigned her interest” to Jacob B. Miller, and then Miller, for the consideration of $1, reassigns, remises, releases and quit-claims to Mrs. Skiles.
    5. Quit-claim deed from Rachel Skiles to Ellis Baily, dated September 12th 1857, acknowledged same day. Written on same sheet with preceding deed. Consideration $2000. Both of these deeds witnessed by and acknowledged before J. D. Springer, the present plaintiff.
    6. Deed from Ellis Baily and wife to Rachel Skiles, dated March 7th 1862, acknowledged the same day. Consideration, $2000.
    7. Will of Rachel Skiles, dated May 15th 1860, with codicils dated respectively November 30th 1860, and March 8th 1865, in which she devises and directs as follows: “I give and devise unto Jacob Beeson, Jonathan D. Beeson and Henry Beeson, sons of Henry H. Beeson, all my outlot situate on the National road, west of Uniontown, adjoining Redding Bunting on the west, Everhart Bierer on the east, to them and their heirs for ever. All the balance of my property, both real and personal, I direct to be sold by my executors as soon after my decease as they may deem best for the interest of my estate, and the proceeds, after paying my just debts and necessary expenses, I divide as followsAfter a number of specific bequests, the will contains the following: “ All the rest and residue of my estate I give and bequeath unto Henry II. Bee-son, Jacob B. Miller and Jonathan D. Springer, to be equally divided between them.” She appointed Jonathan D. Springer and Jacob Miller executors.
    The defendant makes out his paper title as follows:
    1. Mortgage from James Piper and wife to the American Life and Health Insurance Company, dated April 1st 1854, acknowledged April 18th 1854, and duly recorded same day, for this and other lands, to secure a debt of $1785.25.

      2. Scire facias sur mortgage to June Term 1857, No. 108. Issued April 8th 1857. Judgment entered thereon June 2d 1857. Levari facias tested June 6th 1857, and the property in dispute sold to Alfred Howell, Esq., on the 10th of September 1857, for $350.
    3. Sheriff’s deed to Alfred Howell, dated September 15th 1857, acknowledged same day and recorded in sheriff's deed docket.
    4. Heed from Alfred Howell, Esq., to Dr. Smith Fuller, dated January 5th 1865, acknowledged same day. Consideration, $500.
    5. Deed from Smith Fuller and wife to John Gallagher, dated February 7th 1865, acknowledged same day. Consideration, $500.
    6. Deed from John Gallagher to John Bruner, dated January 24th 1866, acknowledged the same day. Consideration, $500.
    7. Deed from John Bruner to Jacob B. Miller, dated July 20th 1807, acknowledged same day. Consideration, $1.
    These papers vested the Piper title in the defendant, Miller.
    The plaintiff undertook to show that the defendant was estopped from setting up his legal title. For this purpose ho attempted to prove, by a son of the plaintiff executor, that the testatrix had had possession of the premises.
    He also gave in evidence the record of the Orphans’ Court, at No. 43, March Term 1868 — a proceeding by Henry H. Beeson, one of the residuary legatees of Rachel Skiles, deceased, to compel her executors to settle a supplementary account, and for a rule on them to show cause why they had not sold the land now in dispute. Both executors filed answers. The court excluded the answer of Springer, when offered in evidence by defendant. Upon the defendant’s answer the court took the case from the jury and directed a verdict in favor of plaintiff. The plaintiff gave evidence also that the purchase by Dr. Fuller from Mr. Howell was made for defendant and with his money; and also of declarations made by defendant to Dr. Fuller, as to his purpose in buying the Howell title. It also appeared that this land had been appraised as part of the estate of Mrs. Skiles, for collateral inheritance tax, that the tax had been paid on it, and credit taken by the executors in their account. Evidence was given that Dr. Fuller had conveyed to Mr. Gallagher, and Mr. Gallagher to John Bruner, by direction of defendant. Evidence was also given of certain payments of legacies, &c., by defendant, to show he acted a3 one of the executors of Rachel Skiles.
    On the part of the defendant the following facts were proved:
    1. That he had taken little or no part in the settlement of Mrs. Skiles’s estate ; that he had made an agreement with the other executor to leave the active duties to him ; that Judge Willson, the attorney who had stated the account in which credit was taken for paying the collateral tax, was the attorney of the executor Springer only, and had taken his instructions from him and not from Miller; that the account was sworn to and presented by Springer, and not by Miller, he having nothing to do with it, or with the supplementary account.
    2. That the defendant had had no agency in having the land appraised for collateral inheritance tax, and protested against it; that he had known nothing of its having been done until the trial in court of the case of Miller v. Skiles’s Executors; that he knew nothing of the payment; that the appraiser was appointed at the instance of Springer, without Miller’s knowledge, and that the tax was paid by Springer.
    3. That the deed from John Bruner to the defendant had not been delivered to the defendant at the time he made his answer to the Beeson rule to show cause why he should not sell this land, and that he did not then know of its existence.
    4. That the purpose of having the several deeds made, conveying the Howell title, was to make a case that could be tried in the U. S. Court. Under what was considered the binding authority of Miller v. Springer et ah, 20 P. E. Smith 269, the court gave the jury binding instructions to find for the plaintiff. Mrs. Skiles died in April 1865.
    The court, Stowe, P. J., holding a special court, affirmed the fourth point of plaintiff as follows:
    “ That Jacob B. Miller, by his answer under oath, dated the 5th day of June 1868, and filed of record in the Orphans’ Court, at No. 43, March Term 1868, in answer to a rule on the executors to show cause why they should not sell the land in dispute, claimed and admitted that the title thereto was in the said executors for the purpose of said sale; he at the same time holding the Howell title, is now estopped from setting up that title, and the plaintiff is entitled to recover.”
    And refused the following points of defendant
    3. “ That no acts or declarations done or made by the defendant in his representative capacity, as one of the executors of Rachel Skiles, deceased, will estop him from setting up and claiming his individual or personal rights, which are adverse to the estate of his testatrix; that the only acts or declarations done or made by the defendant which have been given in evidence by the plaintiff, which could estop the defendant, were done or made by him as executor in endeavoring to protect the interests of the estate, and cannot be used to estop him from setting up his individual title, which is adverse to the estate.
    5. “ That under all the evidence in the case, the plaintiff is not entitled to recover.”
    In the general charge the court said:

      “ The view we are compelled to take of the law of this case, will make your duty a very simple one. This case, or at least a case involving all the questions that are contained in this case, between some of the same parties, has been in the Supreme Court; and their decision upon the points involved, which govern the case as it now stands, is conclusive. There is no appeal from that decision, so far as we are concerned, at least, and it is equally binding on court and jury. If the Supreme Court, if it go there again, see fit to change their view, they have the power to do so, and can reverse us for saying to you now, just what they have decided we must say to you. But until they do reverse it, we are bound under our oaths to accept the law from them, and direct you accordingly. Then to simplify this case, [we instruct you that under the evidence in the case the plaintiff is entitled to your verdict. This affidavit or answer that was filed by Mr. Miller, in reply to a citation in relation to this property, the Supreme Court have said, put him in such a position as that his mouth shall be for ever closed from setting up any title that he may have to the land in dispute. And assuming that it was a good title, as the evidence would seem to indicate in this case, yet by his own act the Supreme Court says he has put himself in a position where ho will not be allowed to set up that title as against the title set up by the plaintiffs, representatives of Mrs. Skiles. Therefore, as a matter of law, we instruct you that it is your duty to return a verdict for the plaintiff under all the evidence in the case.”]
    The answer of Jacob B. Miller, of June 5th 1868, referred to above in the fourth point of plaintiff and in the charge, was an answer of Miller, as executor of Rachel Skiles, deceased, to a rule upon her executors to show cause why the real estate of said decedent should not bo sold, and was as follows:—
    “ Jacob B. Miller, one of the executors aforesaid, in answer to the rule in this case, says that the title of the said Rachel Skiles to the property aforesaid is in dispute; that the same was sold on a judgment of Rachel Skiles against James Piper, and purchased by her in her lifetime; that at the same term of the court it was sold on a judgment sur mortgage against James Piper, aforesaid, and purchased by Alfred Howell, Esq.; the title of said Howell was afterwards vested in one John Bruner; that ejectment in the name of said Bruner was afterwards brought in the Common Pleas of Fayette county against the executors of Rachel Skiles and H. H. Beeson, for the recovery of said real estate; that the cause was down for trial at January adjourned court last; that when the cause was reached, John II. Hampton, attorney for Bruner, asked for a continuance of the same, as he was compelled by other more urgent business to return to his home in Allegheny county. The court, not deeming this sufficient cause for a continuance, refused to continue the same. Whereupon the counsel, as this respondent supposes of Henry H. Beeson, the mover of the rule in this case, compelled the plaintiff- to take a nonsuit. The cause, otherwise, might have been, and probably would have been, tried at March Term last. Since then the said Bruner has brought ejectment for the real estate in question, in the Circuit Court of the United States, for the Western District of Pennsylvania, against the executors aforesaid and Henry H. Beeson, which will probably be tried at the next regular term of said court.
    “ Under these circumstances, the respondent is of opinion that, while the title to the property in question remains'unsettled, it cannot be sold except at a great sacrifice. The respondent, therefore, is of opinion that, as the will of the said Rachel Sidles provides that the real estate of the deceased should be sold by her executors at such time as they shall deem best for the interest of the said estate, the discretion thus imposed upon them, requires them not to sell the said real estate before the title to the real estate in question shall be settled.”
    The verdict was for the plaintiff, and defendant took this writ assigning for error the answers to the above points, and the portion of the charge in brackets.

      Boyle Mestrezat and Minor Parshall, for plaintiff in error.
    Miller made his affidavit as. executor of Mrs. Skiles. He was not called upon to speak as an individual, and did not so speak. As an individual, he would not be estopped by anything he may have said or done as an executor, nor would he bo refused a hearing were he to attempt to deny as an individual what he had affirmed as an executor: Bell’s Estate, 1 Casey 92; Robbins v. Bellas, 2 Watts 359; McMichael v. McDermott, 9 Harris 353; Warden v. Eichbaum, 2 Id. 121; Bigelow on Estoppel 65, 243.

      D. Maine and Daniel Downer, for -defendant in error.
   Mr. Justice Merour

delivered the opinion of the court, January 6th 1879.

The learned judge ruled this case on the authority of 20 P. F. Smith 269. That case was between the same parties, and for the same lands.

In this second action of ejectment, the plaintiff in error sought to avoid the effect of that decision, by showing he did not participate in returning the land to be appraised for the payment of a collateral inheritance tax; and also that he had not in fact accepted the deed from Bruner, at the time of making his answer, of 5th June 1868, under oath. The substantial and uncontradicted facts, however, were again shown. The purchase from Howell was made at the request, and with the money, of the plaintiff in error. The subsequent conveyances by which the legal title was transmitted to Bruner, were without the payment of any consideration, and for the purpose of putting the title in a citizen of another state, to enable suit to be brought in the Circuit Court of the United States.

The mere fact that he had not accepted the deed from Bruner at the time of his answer, does not change the effect of the latter. The title was held for his use and benefit; besides it is not an unreasonable presumption that the deed from Bruner was actually handed to him by Alex. Miller, before the time of the answer. It is true he declined to receive it then, to avoid the effect of a change of title, on the suit pending in Bruner’s name; yet he left it apparently subject to his call. Bruner treated it as a conveyance, and as soon as the plaintiff in error requested it was delivered to him. Substantially then we think he stands on no firmer ground than on the former trial. Judgment affirmed.


author: Per CurtAM.

text:
    Livingston’s Appeal.
    The judge of a separate Orphans’ Court has no power to hold the Orphans’ Court of a county, in which a judge of the Court of Common Pleas presides by virtue of his commission. The Act of March4th 3875, does not apply to such a case, and has relation only to the judges of the separate Orphans’ Court.
    November 22d 1878.
    Before Agnew, O. J., Sharswood, Mercu-r, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Appeal from the Orphans’ Court of Washington county: Of October and November Term 1878, No. 330.
    This case was as follows: Exceptions were filed in the court below to the account of Samuel Livingston, executor of Thomas Livingston, deceased, which exceptions were referred to an auditor for report.
    Exceptions were filed to the auditor’s report, and Hon. Geo. L. Ilart, president judge of the Court of Common Pleas of Washington county, called in the Hon. W. G. Hawkins, president judge of the separate Orphans’ Court of Allegheny county, to hear and determine the questions involved. His honor, Judge Hawkins, after a hearing, filed an opinion and made a decree “that the proceedings in said matter be vacated and set aside from which decree Samuel Livingston took this appeal.
    Washington county is a separate judicial district, but has no separate Orphans’ Court, the judge of the Court of Common.Pleas being judge of the Orphans’ Court by the Act of May 19th 1874, Pamph. L. 206, sect. 2, Purd. Dig. 1933, sect. 2.
    The Act of April 14th 1834, Purd. Dig. 230, 231, authorizes the holding of special Common Pleas courts in any county by calling in the president judge who may reside nearest for the trial of those cases wherein the president judge of the court in which the suit is brought is incapacitated for trying through interest in the cause; where title in dispute is claimed through him ; through kindred to the parties; or through having been concerned as coun-' sel. By the Act of April 4tli 1843, Purd. Dig. 1105, sect. 14, the provisions of the Act of 1834 were extended to the Orphans’ Court, Register’s Court, Quarter Sessions and Oyer and Terminer.
    The Act of March 4th 1875, Purd. Dig. 2050, Pamph. L. 5, sect. 1, provides that “whenever, by reason of sickness, absence, interest or other cause, a judge of the Orphans’ Court, in any judicial district in this Commonwealth, may be unable to sit in any matter depending in such court, it shall be lawful for him to call upon any other Orphans’ Court judge, or judge of-any other Court of Common Pleas in this Commonwealth, to preside in and determine such matter, with the same force and effect as though he, the regularly commissioned judge of such district, if presiding, might do.” • ; ■
    The question of jurisdiction was not raised in the court below, and no allusion was made to it in the paper-books furnished the Supreme Court. In the argument, however, a question as to the power of Judge Hawkins was suggested, as will appear in the following brief thereof. A like opinion was filed and judgment entered in Jane Neill’s Appeal, which came up from Washington county at the same term, and in which Judge Hawkins had presided and made the decree. The same counsel were engaged in both causes.

      D. S. Wilson and Dougan Todd, for appellant.
    [Justice Pax'son. — Is there any act but that of 1875 by which it is claimed that Judge Hawkins had a right to hold this court ?]
    Mr. Dougan. — No, Sir.
    [Justice Sharswood. — Under this act, a Common Pleas judge could only act in the stead of another Common Pleas judge, and an Orphans’ Court judge only in the place of another Orphans’ Court judge.]
    Mr. Wilson. — We go further, and contend that no Allegheny county judge could hold Orphans’ Court, because they are not Common Pleas judges with Orphans’ Court jurisdiction.
    [Chief Justice Agnew. — Washington county has not a separate Orphans’ Court?]
    Mr. Wilson: — No, sir. We called in Judge Hawkins to hold our court for us in the absence of the regular judge.
    [Ohiéf Justice Agnew. — I understand that. I am looking at the power of Judge Hawkins. He has no power to hold the Common Pleas Court, and yet the Orphans’ Court in your county must be held by a Common Pleas judge.]
    Mr. Wilson. — We thought he had jurisdiction and every requisite power to hold the court.
    [Justice Sharswood, — You could not give *him jurisdiction. The Act of Assembly reads so as to apply only to Common Pleas judges.

      Chief Justice Agnew.- — Well, we will take the case, and leave the argument as it stands, reserving the question of jurisdiction. Let us understand the case as if the court had jurisdiction.]

      Braden $■ Miller and Freeman Brady, Jr., for appellees.

       See Commonwealth ex rel. Chase v. Harding et al., 6 Norris 343, as to this question of jurisdiction.- — Rep.

   The judgment of the Supreme Court -was entered, November 28th 1878,

Per CurtAM.

The proceeding in this case before Judge Hawkins, the judge of the separate Orphans’ Court of Allegheny county, was coram non judice. He had no power to hold the Orphans’ Court of a county in which a judge of the Court of Common Pleas presides by virtue of his commission.

The Act of 4th March 1875, Pamph. L. 5, does not apply to this case. It has relation to judges of the separate Orphans’ Courts. This ease is fully provided for by the Act of 4th April 1843, sect. 8, 2 Purd. Dig. 1105, pl. 14.

The decree is reversed, and all proceedings had before Judge Hawkins are set aside, and the record is ordered to bo remitted, with a procedendo as to the matters occurring in the Orphans’ Court before he presided, the costs to abide the final result.


author: Mr. Justice Sharswood

text:
    Becket versus Uniontown Building and Loan Association.
    Whore it was manifestly the intention of the Court of Common Pleas in granting a charier to a building and loan association to incorporate it under the provisions of the act of April 12th 1859, it is not a valid objection thereto that the articles of association contain provisions not authorized by that act. If unauthorized provisions are added, all acts done in pursuance of such will be void, but until the corporation is proceeded against for an abuse of its franchises, its rights as a corporation will not be affected by such unauthorized powers, and in a scire facias to revive a jugdment entered on a judgment-bond given by a stockholder to such an association, the validity of the charter cannot be questioned, and a defence cannot be made on the ground of an alleged conllict of some of its provisions with the general law.
    November 22d 1878.
    Before Agnew, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas, of Fayette county: Of October and November Term 1878, No. 272.
    Scire facias issued by the Uniontown Building and Loan Association against Samuel S. Becket, to revive a judgment confessed upon a judgment-bond given by defendant to said association.

      Defendant filed an affidavit of defence to the whole of plaintiff’s claim except $83.75 and interest, and afterwards pleaded payment and payment with leave, &c., and that the judgment was usurious.
    The parties agreed to dispense with a trial by jury and submit the case to the decision of the court, under the Act of April 22d 1874.
    The court, Stowe, P. J., of Court of Common Pleas, No. 1, of Allegheny county, holding a special court, found the facts as follows:
    “Plaintiff was incorporated by the Court of Common Pleas of Eayette county, in 1870, as follows: ‘ And now, September 14th 1870, the articles of incorporation of the Uniontown Building and Loan Association having been filed, &c., and due notice thereof having been given, it is hereby ordered and decreed that the persons associated under said articles shall become and be a body •corporate in law.’ This follows order to record, &c. The petition was signed by nineteen citizens. Defendant became the owner of five shares of stock, and a member of the association. At a regular meeting held in pursuance of the by-laws and charter, $1000 was offered for sale to the members, and defendant bid forty-one cents premium, and being the highest bidder, became entitled to the loan at that price, which gave him $590 in cash, he giving security in $1000. He took the $590 and gave his judgment-bond in accordance with the regulations of the association, and judgment was confessed thereon, December 4th 1871, and this scire facias is issued to revive it. The defendant paid from time to time after the loan was taken, and the judgment entered up to 28th of November 1874, was for the sum of $418, of which $258 was on account of stock, and $160 on account of loan. Eines were duly charged against him for default of payment on stock and loan computed up to and including April 1878, $67.75; to December 1876, $51.75. [The defendant had paid up to 28th of October 1871, the time of loan, $108, which was for stock and fines, or stock alone, the evidence does not show which, but which fact we consider immaterial in this case.] His last payment to plaintiff was 28th of November 1874. The plaintiff claims $1000, with interest to date, crediting $160, the amount paid on loan, with the fines properly recoverable, and five per cent, attorney’s fee. And this he is entitled to recover unless the claim of usury is sustained. We are of the opinion that the plaintiff was incorporated under the Act of 12th of April 1859, which allows any amount of interest to be taken without becoming usurious, and the defence fails ■ upon that ground, and therefore plaintiff is entitled to have judgment for $1000, with interest, less $160, the amount paid, the amount of fines properly collectable, and five per cent, attorney’s fees for collection. Evidence was given of fines assessed to December 1876, $51.75, and to and including April 1878, $67.75. It seems to me that neither is the proper period, but that there should be no fines on either stock or loan allowed, after the period when plaintiff was entitled to sue for the whole unpaid balance of loan and unpaid balances of stock subscription, that is six months from the last payment made by defendant on his stock or loan, to wit: six months after the 28th of November 1874. My reason for this view is this : 1 By-Law’ No. 7, entitled Borrowing Stockholders, and subject to which this loan is specially taken, provides, when default in payment of stock, or interest or either has continued for six months, credit on the obligation shall cease, and the whole amount become due and payable, and legal proceedings shall at once be commenced to enforce payment of the obligation, fines, indebtedness and all other changes.
    “ This I take it, ended the right of plaintiff to charge any fines after such time, and thereupon the defendant was fixed for the sum then due under letter of the bond, but not beyond it (unless by his own act, which is not pretended here), except for such interest at six per cent, as might accrue on that amount up to time of payment.
    “ Upon this basis we find for plaintiff and against defendant for §1000, and interest to May 28th 1875, deducting the payment of §160, and proper allowance for interest on it would be about §1045, to which acid fines for six months, §6, and interest on §1000 to date, viz.: §170.50, and the gross amount appears to be as follows :
    Debt and interest .... §1224.50
    Fines...... 6.00
    §1230.50
    Five per cent, attorney’s commission . 61.50
    Whole amount ..... §1292.00
    “ Which sum we are of the opinion plaintiff' is entitled to recover in this suit.”
    In an opinion the court said:
    “The validity of the charter of plaintiff cannot be questioned in this proceeding. That the court intended to grant the charter under and in accordance with the provisions of the Act of 12th of April 1859, I think sufficiently appears, not only from the fact that the association in the order of the court is termed a building and loan association, but also from the general provisions contained in the articles. It is true that the charter contains a provision not authorized by this act, but throwing that aside, I find nothing absolutely inconsistent or in conflict with it.
    “No term is fixed for the duration of the association, but this alone I think amounts to nothing, as the law limits its duration to twenty years, and therefore it cannot exist beyond that period.
    “ If under article 9 the charter was terminated before that period, as it might possibly be, the end has come consistent with the act. If that article does not terminate it before, the law steps in and ends the corporate existence at that time, and there is nothing in the charter indicating a contrary intent.
    • “The provision that under certain circumstances money may be loaned to others than members is certainly ■ not within the provisions or powers of the Act of 1859, and therefore as against such the association could not recover more than six per cent, interest, but this certainly does affect the right to recover more as against a member.
    “ I think the law to be clear, that in corporations formed under the general laws, it is no objection that the articles of association contain provisions not authorized by the act. If unauthorized provisions are added, all acts done in pursuance of such will be void, but until the corporation is proceeded against for an abuse of its franchises, its rights as a corporation will not be affected by such unauthorized powers. Such, too, has been expressly stated in New York, in Eastern Plank-read Co. v. Yaughan, 14 N. Y. 546. The case of Rhoads v. Hoernerstown Building and Loan Association, 1 Norris 180, does not seem to me to cover this case. Whatever else appears in that case, the controlling idea was that the court that granted the charter then, could not and did not intend to charter it under the Act of 1859, because it had no authority under the petition to do so, and further, because the provisions of the charter were such as also to rebut any such intention.
    “Here the jurisdiction of the court under the Act of 1859 was clear, and I find nothing to the contrary indicated by anything in the charter, and much that leads me to the conviction that the purpose of the court was to incorporate an association under the Act of 1859, having all the powers of what are ordinarily termed building and loan associations incorporate undér that act.
    . “And now, July 10th 1878, exceptions having been filed in the above stated case, and the argument thereof having been waived by counsel, it is ordered and directed that judgment be entered, according to the decision heretofore made in favor of plaintiff, for $1292.”
    The defendant filed the following exceptions:
    1. The court erred in finding that the plaintiff was a building and loan association under the Act of 1859, and had a right to recover in this case.
    2. In finding for the plaintiff any amount except the difference between the amount of money received by defendant, and the amount paid back by him, with legal interest thereon.
    8. In allowing the plaintiff’s claim of $1000, with interest to date, and in their calculation thereon.
    The court overruled these exceptions, and the defendant took this writ assigning this action for error.

      P. Kaine, for plaintiff in error.
    Had this’ association any corporate rights under the Act of 1859 ? It was to be known as the Uniontown Building and Loan Association. “ The object of this association shall be the accumulation of money to be loaned among its members for the purchase of houses or lands, or for building and repairing the same, and for acquiring homesteads.” The first section of the Act of 1859 provides that no charter granted under the provisions of this act shall be for a longer period than twenty years. This association has no provision of that kind, and is unlimited in duration. The first section of the second article of this association provides, “ that any member wishing to withdraw from the association, shall be entitled to receive from the treasurer the amount he has paid in as dues, first deducting his fines, if any, and his proportion of the expenses and losses that the association may have sustained during his membership, and provided that he gives at least two weeks’ notice to the board of directors of his intention to withdraw.” The second section of the Act of 1859 provides: “Any stockholder wishing to withdraw from the said corporation, shall have power to do so, by giving thirty days’ notice of his or her intention to withdraw, when he or she shall be entitled to receive the amount, paid in by him or her, and such proportion of the profits as the by-laws may determine, less all fines or other charges.” The first section of the eighth article of this association provides: “Any member who shall fail to pay his dues and interest, if any, shall pay a fine of ten cents in each case for each and every share for every regular meeting so failing, and when the amount of such fines and dues shall equal the amount he has paid in on such share or shares, shall be forfeited to the association.”
    The act of 1859 authorizes nothing of this kind, and it has no authority to support it. No reference is made to Act of 1859, in petition for charter, decree of incorporation or charter itself. To possess the powers claimed, it must have been affirmatively shown therein: Rhoads v. Hoernerstown Building and Savings Association, 1 Norris 180.

      Win. Jl. Play ford, for defendant in error.
    In Rhoads v. Hoernerstown Building and Savings Association, supra, the charter of the incorporation was obtained upon a petition signed by three persons only, while the Act of Assembly requires three or more, and this was the controlling fact in determining that case. Besides many of the provisions of that charter were in conflict with the Act of 1859. There is a provision in this charter going further than the Act of 1859; that is the power to loan money to parties not stockholders. The object of the association was to loan money, and a provision going further than the Act of Assembly in that direction could not avoid acts clearly within its power. This is a contest between a stockholder and the association, not an outside borrower.

      Being a borrowing stockholder, the plaintiff cannot avail himself of the plea that his contract was usurious: Juniata Building and Loan Association v. Mixell et ux., 3 Norris 313 ; Wolbach et ux. v. Lehigh Building and Loan Association, Id. 211.
    Nor was Becket’s bargain a hard one. If he had lived up to his contract, in the end the amount paid by him would have been little in excess of six per cent, upon the $590 received by him in 1871, in addition to the principal sum. His stock has not been forfeited, and when that is done whatever it is worth will be credited on the judgment against him.
   Mr. Justice Sharswood

delivered the opinion of the court January 6th 1879.

. A building and loan association, organized under the Act of Assembly of April 12th 1859, Pamph. L. 544, is a species of partnership for dealing in money. The borrower has often to pay very large interest, and if he fails so as not eventually to secure the advantages of his contract, it seems very hard, even cruel, to exact so heavy a forfeiture. Yet he became a member of the association in view of the large profits expected to accrue from these heavy discounts to the common fund. Had he continued to pay, when the association wound up he would have received his full share of his own discount as well as those of others. It would require $5 per' annum to pay off $100 in twenty years, and the interest during the same period, crediting each payment on the principal, would be $77. Our building associations often wind up in six or eight years, that is their common fund becomes equal to $200 a share, to be distributed to the members or applied in discharge of their loans. Thus it will be seen that the borrower at usury is himself also a lender at usury, and if he can, by economy and self-denial, manage to make his payments, is sure to come out in the end a large gainer. It would be very unjust to those who thus make their payments' regularly, if the court, from sympathy for those who have fallen behindhand, should refuse to enforce the obligations. Thousands of these associations have been organized and been wound up without their names ever appearing on the docket of the court, and millions of dollars have been accumulated from the savings of scanty wages. However it may be elsewhere, Philadelphia has become emphatically a city of comfortable homes for the poor by means of these organizations. The question in this case was submitted to the learned judge below under the Act of 1874, without the intervention of the jury. He has reported the facts with his opinion, and we affirm the judgment for the reasons he has stated.

J udgment affirmed.


author: Per Curiam.

text:
    Chase versus Vandergrift et al. Acme Oil Company versus O’Hare.
    Where a stenographer is appointed under the provisions of the Act of May 8th 1876. Pamph. L. MO. authorizing the appointment of stenographers in the several courts of the Commonwealth, his note of a bill of exceptions to the admission or rejection of evidence is suilieient, and it is not essential that the bill should be actually sealed by the judge.
    November 25th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and. Trunkey, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1878, Nos. 94 and 802.
    These were writs of error in one of which Lanman Chase was plaintiff in error, and Jacob G. Yandergrift and George V. Foreman were defendants j and in the other, The Acme Oil Company-plain tiff in error, and the defendant, Hugh O’Hare.
    The Supreme Court, as will be observed by the subjoined opinion, found no error in the record in these cases and affirmed the court below; but in the argument before this court, the question was raised, whether the stenographer’s note of a bill of exceptions to the admission or rejection of evidence was sufficient; or is it essential the bill should be actually sealed by the judge; and to the discussion and determination of this question the opinion of this court is directed ?
    The material portions of the Act of May 8th 1876, Pamph. L. 140, to authorize the appointment of stenographers in the several courts, will be found in the opinion of this court.

      Gruthrie $ Byles, for plaintiffs in error.
    The Act of May 8th 1876, provided for the report of testimony and makes such report of the evidence conclusive.
    [Chief Justice Agnew. — Admitting all you say as to the correctness of the notes of the stenographer, the question is, does the act change the practice requiring the judge to seal the bill? That is tne only evidence of the authenticity of the act of the court below. How, the question is, does the Act of Assembly supersede the duty of the court, given by the English statute of Henry II. ?]
    Mr. Byles. — If it be not so the practice of the bar all over the state is wrong.
    [Justice Sharswood. — I have never seen a case in which the notes were not sealed by the court.
    Chief Justice Agnew. — Mr. Sherman says that there is no bill sealed by the court. The question is whether this statute supersedes the statute of Westminster?]
    Mr. Byles. — We contend it does. ,.

      [Chief Justice Agnew. — The paper-book seems to indicate that the judge assented to the sealing of the bill.]
    Mr. Byles. — All that is certified to by the judge is the record.
    [Chief Justice Agnew. — Suppose a bill is sent up without being sealed, would that be certified by merely certifying to. the record ?]
    Mr. Byles. — We think it would.
    [Chief Justice Agnew. — Who was the judge?]
    ■ Mr. Byles. — His Honor Judge Church.

      Roger Sherman, for defendant in error.
   The judgment of the Supreme Court was entered January 6th . 1879,

Per Curiam.

A question is raised in these cases whether the stenographer’s note of a bill of exceptions to the admission or rejection of evidence is sufficient; or is it essential the bill should be actually sealed by the judge. A careful examination of the Act ■ of 8th May 1876, Pamph. L. 140, leads to the belief the note is sufficient. That act is a substitute for the Act of 15th May 1874, and goes somewhat beyond it. The first section provides for the appointment by the president or law judge of a stenographer to b.e attached to the court. The second requires him to be competent in his art, and to duly qualify under oath. It then proceeds, “ It shall be the duty of said stenographer to take full stenographic notes of the testimony in all proceedings in any trial of facts, together with the charge of the judge; and said notes shall be deemed and held to be official, and the best authority in any matter in dispute ; and a copy of the same, made as hereinafter provided, shall be used by the parties to a cause in any further proceeding wherever the use of the same may be required.”

. Thus the stenographer is an officer of the court, acts under oath, and his notes are declared to be official, and to be the best authority in case of dispute. Besides, they are to be used whenever their use is required, covering the use thereof in this court. This is not all, for the 4th section, after making it the duty of the stenographer to furnish copies of his notes in long hand upon the order of the court or request of counsel, during the trial or afterwards, provides that within a reasonable time after the trial he shall transcribe all notes not previously transcribed by order of the court, which transcript shall be filed and made a part of the records of the case.

Now with these provisions before us, intended to preserve and reproduce the evidence in the most accurate form, to be done by a sworn officer, and deemed to be official and the best authority, and filed as part of the record, it cannot be held that the note of an exception. taken and by whom, is not to be regarded as a part of the record, and is valueless, because it is not sealed by the judge. One of the purposes of the appointment of a stenographer is to secure rapid and unabating progress in the trial, relieving court and counsel from taking full notes. If a judge forgets an exception taken, is his want of recollection to deprive a party of the benefit of the notes of the stenographer because the judge declines to seal the bill ? Clearly the act intended that the officer should perform a duty which would supersede the necessity of personal attention to these details by the court.

It seems to us the act must receive this construction from its very terms, as well as its intent and purpose.

But on the merits we are of opinion no error appears in the record, and the

Judgment is therefore affirmed in each case.


text:
    Hennon versus McClane.
    1. A conveyance of land in consideration of future maintenance, is a question of actual fraud for the jury, and in the absence of evidence of existing creditors at the time of its execution, is valid.
    2. 0. conveyed land to M. in consideration that the latter would maintain C. and his wife during their lives. In ejectment against M. by a subsequent judgment-creditor, Held, that in the absence of evidence of existing creditors at the time of the execution of the agreement, the court properly loft it to the jury to determine whether there had been actual or intended fraud in tlie execution thereof.
    November 25th 1878.
    Before Agneav, C. J., Sharsavood, Mercur, Gordon, Paxson and Trunkey, JJ. Woodavard, J., absent.
    Error to the Court of Common Pleas of Lawrence county: Of October and November Term 1877, No. 257.
    Ejectment by John M. Hennon against Marquis A. McClane.
    On July 4th 1868, Daniel Oole agreed to sell and convey his farm to defendant, in accordance Avith the terms of the following agreement:—
    “Article of agreement made and concluded by and between Daniel Cole, of the township of Wayne, in the county of Lawrence, in the state of Pennsylvania, of the first part, and Marquis A. Mc-Clane, of the same place, of the second part, witnesseth, that the said party of the first part agrees to sell and convey unto the said party of the second part, his heirs and assigns, and by these presents doth sell, convey and confirm unto said party of the second part, his heirs and assigns, all that certain tract or parcel of land situate in said township of Wayne, bound and described” [here follows description]. “ In consideration thereof, the said party of the second part agrees and covenants to and Avith said party of the first part to maintain and support and provide said party of the first part with a good, comfortable living. Also a good, comfortable living for the wife of said party of the first part during the natural lifetime of both and either of them; that is, he shall provide them with board, domicile, coal, and his wife during the natural lives of both and either with good and sufficient bedding and clothing, as well as medicine and good attendance when sick or infirm. Said parties of first part to have possession of the place for a home for himself and his wife so long as both or either may live. Said second party to have the stock, farming utensils and other personal property pertaining to the farm, upon the signing of these articles. The household furniture and other personal property to be delivered to said party of the second part immediately after the death of the said Daniel Cole and his wife, or the survivor of them. Said party of the second part to keep the house and necessary outhouse or houses in good, comfortable condition, and provide the said Daniel Cole with sufficient fuel during his life; also the same during the life of his wife.
    “ In testimony whereof, the said parties have hereunto set their hands and seals this fourth day of July 1868.
    Daniel Cole, [l. s.]
    Marquis A. Me Cl ane, [l. s.]
    Witnesses — John R. Evans,
    H. T. Wilson.”
    The plaintiff claimed the land in dispute by virtue of a sheriff’s deed, dated May 13th 1874, the property having been sold on a judgment obtained against Cole by his daughter, on a note given by Cole to her for borrowed money. The farm and the personal effects mentioned in the agreement were all the property Cole had at the time of its making. It did not appear that Cole had any indebtedness at the time of the execution of the agreement.
    The answers to the plaintiff’s points submitted on the trial, are substantially made in the following portions of the general charge:
    “ The plaintiff gives evidence in support of his allegations of fraud in the contract of sale to defendant of indebtedness of Daniel Cole to Elizan Cole, and to others, on and before the 4th of July 1868, the date of McOlane’s purchase; refers to the terms of the contract showing that Daniel Cole and wife were to continue in the possession of the land sold during their joint lives and for the life of the survivor; that the sale embraced, with but little exception, all the property of Daniel Cole, &c.; and from these facts and all other facts proven in the case,, bearing on the point, and which are for'the jury to remember and apply, and contends that the sale was fraudulent, as made with the intent to place his property in condition to be for his own benefit and that of his wife, and to, in consequence, hinder, delay and defraud his creditors; and that if so, it would be such fraud as would vitiate the contract of sale to and with the defendant, McClane, and render it void. We cannot declare the contract fraudulent, as a matter of law, and decline saying so to-the jury. In our view of the question, from the face of the contract, and the proof that there were $200 and upwards paid upon it in money, or its equivalent, in the surrender of Cole's notes to McClane for borrowed money, [we cannot say, as a conclusion of law, that the contract was voluntary and without valuable consideration, and fraudulent and void. This, we think, is a question of fact, to be arrived at and determined by the jury, from all the proofs in the case, and it is therefore referred to the jury; and we say, that if the jury find, from all the evidence in the case bearing upon the questions, that Daniel Cole had, on and before the 4th of July 1868, the date of his contract of sale with the defendant, creditor or creditors, to any amount whatever, and of which he had knowledge, and that the sale of his property was made to McClane with intent to hinder, delay and defraud the creditor or creditors, the contract would be fraudulent and void.] [If, however, you do not find, from the evidence, that Daniel Cole had, on and before the 4th of July 1868, creditor or creditors known to him, and that the contract was not voluntary, and without consideration, but for a consideration, paid in part in money, and to be paid as provided in the contract as to the remainder, and not entered into with design and intent to place his property in shape to benefit himself and wife, and beyond the reach of his creditors, so as to hinder, delay and defraud creditor or creditors of their money, then the contract would not be fraudulent and void.]
    [“ The question then on which the case turns is one of actual fraud, and this is for you to determine. We say in brief that the contract between the parties on 4th July 1868, was of the character of purchase for a valuable consideration over $200 of this consideration actually paid in hand at the execution of the contract. The contract was not voluntary, but founded on a valuable consideration, and we cannot instruct you as a conclusion of law that it was made with fraudulent intent and consequently void; but instruct you that the fraudulent intent must be shown as a matter of fact, and the burden of proof is on the plaintiff in this case, to satisfy you by evidence that Daniel Cole was knowingly indebted at the time ho made the contract, and that he made it for the purpose and with the intent to place his property beyond the reach of his creditor or creditors, and thereby to hinder, delay and defraud such creditor or creditors. If you cannot find such intent from the evidence in the case, then the contract is not void, but valid, and the defendant has good title to the land in dispute.”]
    Verdict for defendant, and after judgment plaintiff took this writ and, inter alia, assigned for error the portions of the above charge noted in brackets.

      D. S. Morris and J. M'cMiehael, for plaintiff in error. —
    The court should have said the conveyance on its face was a voluntary conveyance, fraudulent and intended to hinder and delay creditors: Johnston v. Harvy, 2 P. & W. 82; Miner v. Warner, 2 Grant 448; Thompson v. Dougherty, 12 S. & R. 454; Geiger v. Welsh et al., 1 Rawle 349 ; Chambers v. Spencer, 5 Watts 404; Zerbe v. Miller, 4 Harris 488; Sanders v. Wagonseller, 7 Id. 248; Ferris v. Irons, 2 Norris 179.
    [Chief Justice Agnew. — There is no evidence to show that there were existing creditors at the time of the execution of the agreement. If there were any you should have included the evidence thereof in your paper-book. A judge may make a mistake theoretically in charging a jury, but unless he make a substantial mistake, we cannot reverse for an alleged misdirection which does not appear in the record.]

      R. B. MeOomb, for defendant in error.
   Chief Justice Agnew

delivered the opinion of the court, January 6th 1879.

The question of actual or intentional fraud was fairly submitted to the jury, and is put at rest by the verdict. The question of legal fraud stands on a different footing. That may be the result of the bargain itself without any intended fraud, where the terms of the bargain upon the face of the transaction must hinder and delay creditors. It is well settled that one in debt cannot convey away all his property to his wife or children, by way of settlement merely, and without an adequate consideration. Nor can he convey his property in consideration of a. support for himself or those dependent upon him, where the effect is to deprive his creditors of the means of payment of their debts. Indeed the decisions do not stop here, for the statute of 13 Eliz. being directed against conveyances that hinder and delay creditors, as well as those made with a covinous intent, bargains which are not ordinary sales to pay debts, but which are unusual and tie up property out of the reach of creditors, preventing the collection of their debts in the ordinary course of law, are held to be against the statute, and therefore fraudulent in law. Thus, a sale of all a man’s property to his sons on bonds, "not due for a long time, is invalid, on the ground of hindering and delaying. In such a case, the law determines the intent to be fraud'ulent on the face of the transaction, which, on its front, shows that it must necéssarily prejudice the right of creditors : for otherwise it would be in the power of the debtor to impose his own terms of payment regardless of their rights : Kepner v. Burkhardt, 5 Barr 478; Johnston v. Harvy, 2 P. & W. 82 ; Adlum v. Yard, 1 Rawle 163; Sanders v. Wagonseller, 7 Harris 248. In this view of the law the charge of the learned judge, which placed the case wholly on the ■ground off the intentional fraud is scarcely accurate, except on the supposition that he did not consider it necessary to answer the propositions made, because of the absence of sufficient evidence of the existence of debts at the time, to be prejudiced by the sale of Cole to MeClane. So far as the evidence is laid before us, this appears-to be so. Certainly it is too weak to require a reversal for misdirection, the transaction being entirely fair in fact. If there were evidence of actual existing debts, the evidence ought to have been furnished upon the paper-books. What we have is very small, uncertain, and stale. We discover no substantial error in the record.

Judgment affirmed.