author: Rogers, J.

text:
    Cooke’s Appeal.
    A. purchased land, and gave his bonds and mortgage to secure the purchase-money. He thep, by deed declared that he had received the conveyance for B. B. by his will recited the purchase by A., and that the purchase-money paid had been advanced by himself — and directed his executors to pay the residue of the purchase-money. He further directed, that after payment of his debts, his estate, including the land purchased by A., should be valued and divided among his children — and for the purpose of paying his debts he authorized his executors to sell his real estate, excepting his mansion-farm; and he further directed his executors to sell his mansion-farm after the death of his wife, and divide the proceeds among his children. Actions were brought against A. on his bonds and the mortgage, and the land sold by the sheriff to the devisees of the vendor. Thirty-two years after the death of A., his administrator sold the mansion-farm. The vendor has no claim on the proceeds of this sale, for his contract was with A. only — and he had no claim on B., nor do the directions in the will give him a right to sue, especially after having by the sheriff’s sale prevented the land passing by the will. 2. If he had a claim, it existed at the death of B., and the want of an action against his estate within seven years, bars the remedy against the real estate. 3. Nor is there any trust created for the payment of this claim by the will — the power being only to sell for distribution. 4. And the presumption of satisfaction as to B. from lapse of time is not rebutted by the proceedings against A. on his bonds and mortgage, although the devisees of B. were summoned as terre tenants.

    Nor has the vendor such a claim that he may compel the administrator to give security for the application of the purchase-money of lands remaining unsold, which may be sold for payment of debts under the power in the will.
    [t seems that a direction to sell for the purpose of distribution does not exclude the land from the proviso in the act of Assembly discharging lands from debts unless an action has been commenced within seven years.
    Appeal from the Orphans’ Court of Northumberland county.

      July —. Cooke, one of the devisees of William Cooke, presented a petition to the Orphans’ Court, praying that a debt due by the estate of Thomas Grant should he paid to them, and that his administrator cum test. an. should he compelled to give security for the application of money belonging to that estate; and the question raised was whether there was a debt due by Thomas Grant’s estate to the estate of William Cooke. The facts were these:—
    In 1814 William Cooke sold and conveyed certain real estate to George Grant for $21,000 — a part of which was paid, and tho bonds and mortgage of George Grant given for the residue. Subsequently (the date did not appear), George Grant by deed declared that he had received the said conveyance for Thomas Grant in fee. In 1815, Thomas Grant made his will, which was admitted to probate the same year. In this he recited, that whereas his son George purchased this estate from Cooke, and the purchase-money so far as paid had been advanced by the testator, and his son had given his bonds and mortgage for the residue, and had executed a deed declaring the trust, and that he held the land for testator’s estate, subject to the purchase-money aforesaid, “it is therefore my will, and I order and direct my executors to pay and discharge the said sum of $17,000, and whatever residue thereof may be due after my decease, and that the said estate be subject to the general division to be made of my estate to and among my children.” (There was no recital that the purchase had been made for or at the instance of the testator.) He further declared _ it had been his intention to erect a mill on the premises, which he had commenced, and he directed his executors to complete the same; after which the land was to be valued in the general division of his estate among his children. He further directed that in three years ■ after his decease, or sooner if his debts were paid, the residue of his lands, excepting his mansion-farm, should be valued and divided. And for the better enabling his executors to pay his debts and educate his children, he authorized them to sell and convey such parts of his real estate, excepting the mansion-farm, as should he necessary for that purpose — and he further directed that after the death of his wife the mansion-farm should be sold for the best price, and the proceeds divided among his children and their representa- ‘ tives equally.
    j In 1828, proceedings were commenced on the bonds, and judgment entered in 1833 for $16,735.
    In 1830 a scire facias issued on the mortgage against George Grant, and the devisees of Thomas Grant as terre tenants: judgment was recovered, and the land sold in 1832 to the devisees of William Cooke for $4,730.
    In 1821 the will of William Cooke was proved, and it was admitted that the present petitioner was entitled, as his legatee, to one-half of the debt now in question.
    The present petition was filed in 1846, and averred that the administrator of Thomas Grant had recently sold the mansion-farm, and that there yet remained divers tracts of land belonging to the testator unsold; and the questions were, whether the petitioner had shown such a claim on the estate of Thomas Grant as entitled him to receive payment out of the proceeds of the farm, and to compel the administrator to give security for the application of the funds to arise from the sale of the residue of the land.
    The court refused to make the order, and all the legatees of William Cooke excepted and took an appeal.
    N. and W. J. Gfreenough, for appellants.
    The appellants claim the fund now raised and to be raised in payment of their debt. That it was a debt due by Thomas Grant is admitted by his will, and it is equally plain that the devisees are intended to receive nothing until the debt is satisfied. It was contracted in the purchase of part of the property passing under hi's will, and by taking the declaration of trust subject to the mortgage he became liable personally: Campbell v. Shrum, 3 W. 60; 6 W. 349; lb. 182. The trustees here have no estate not subject to this paramount charge, for until payment thereof the land is not to be valued or divided. The act of 1797, and the presumption of payment, have no place here, for where a trust is created for debts the rules are those between ordinary trustees and cestuis que trust, and there is no pretence of actual payment: Steel v. Henry, 9 W. 523; Alexander v. Murry, 8 W. 509. The contrary rule would be to give to the original debtor, as devisee, a priority over his creditor. These rules apply more strongly to the unsold land —there the trust has never been executed, and the administrator de bonis non should be compelled to perform it now.

      Jordan, contó.
    The present claim for payment is exclusively on the fund arising from the sale of the mansion-farm. As to that, there is neither a trust nor a direction to sell, so far as respects creditors. The other lands were subject to a power to sell for debts: this was only subject to a trust to sell for distribution. Beyond the purposes of this trust no rights are acquired by force of that direction, nor are any interests affected but those who would have taken by descent: saving their interest, the land passed by the devise as land, and hence is within the proviso of the act of 1797. Even had there existed a debt from Thomas Grant to Cooke, the lapse of time alone would bar the right by presumption of satisfaction ; thirty-two years have elapsed and no claim has been made on the estate: the actions against George Grant cannot rebut this, any more than an admission by the personal representative: 1 Whart. 66. But there was no contract between Thomas Grant and Cooke. He contracted by deed with George Grant, and how is he to raise an implied contract with a cestui que trust of George, after taking the security of a bond and mortgage? This, if it existed, was either merged in the higher security, or is barred by the statute of limitations. But they cannot claim under the will; it would be to set up the one intent to destroy the other. ’ They have sold the land he devised, and they cannot now claim the benefit of the direction that they should be paid their debt: McElfrich v. Schley, 6 Law J. 561; 2 Yes. 370.

      Reply. — The whole estate was blended for the payment of this debt, and there can be therefore no inconsistency in the sale of part of the estate, and the claim for the balance of the debt. Nor does the doctrine of election apply as between creditors and devisees: 12 Yes. 254. Nor is it material that the contract was made with George, if he acted as agent for his father; the principal still continues liable;

      July 26.
   Rogers, J.

In support of the claim to a participation in the fund, the petitioner must show himself to be in the relation to the estate of Thomas Grant, either of creditor or legatee. For unless he stands in the one or the other of these positions he has no status in court, and this depends on the construction of the will. The petitioner begins with the gratuitous assumption that the purchase was made by.the direction and for the use of the testator. But this nowhere appears, for, if we may be permitted to judge from the will, the purchase was made by George himself, and for his own use: and, by a subsequent arrangement between him and his father, it was agreed it should become part of the real estate of the latter, and that his executors should discharge the money remaining unpaid. The testator directed, that whereas his son George purchased from William Cooke an estate consisting of five hundred acres of land, and the purchase of the same, so far as already paid, was advanced by him: and whereas his son George gave his bond and mortgage for the residue of the purchase-money to William Cooke, amounting to $17,000, with interest: and whereas his son George had executed an instrument of writing declaring a trust, and that he had held the same for the use of his estate, subject to the purchase-money; it was therefore his will, and he ordered and directed his executors to pay and discharge the said sum of $17,000, and whatever residue may be due after his decease — and that the said estate should be subject to the general division of the estate to and among the children. The contract, it appears, in respect to the estate, was made by Thomas Grant in his lifetime with his son George, by which he became the purchaser of the'estate. To this contract William Cooke was not a party; it cannot therefore be pretended that by virtue of this arrangement he became a creditor of Thomas Grant, for the relation of the parties remains unchanged ;• William Cooke continues as the creditor of George, and no right of action accrued to him as the creditor of Thomas Grant. As the sale was to George, and the contract with him, he was the debtor, and continues to be so, notwithstanding the subsequent contract with his father. And has the will changed the relative position of the parties ? and in this, as in every other case, the intention of the testator must govern. It was manifestly the design of the will to carry out the contract between himself, and George, by which he became the debtor of George; but it never could have entered into his mind to constitute William Cooke, who is not named in his will as such, either as creditor of his estate, or his legatee. George being appointed an executor, is vested with power to use the assets of the estate in payment of his debt to Cooke, or if compelled to pay out of his own funds, he could reimburse himself out of the assets of the estate. If there be any remedy, it is in the name and by the authority of George Grant: and'this is an important distinction, for in that case the representatives will be entitled to a set-off as an equitable defence, if any they have, against the claim in his name — and this is the view of it by the petitioner himself; for until this proceeding no attempt has been made to fix the debt on the estate.

The vendor and his representative have proceeded on the mortgage and bond, have obtained judgment against George for the whole amount, issued execution, sold the mortgaged premises, become the purchasers, and are now in the possession, use, and enjoyment of the property. We have never recognised it as a part of the estate of Thomas Grant, and it would be inequitable to allow them at this late period to turn round and claim under the will. It is one of the plainest principles of equity, that no one shall be permitted to take under an instrument and defeat its provisions. But granting that a legal or equitable liability is created by the will, then two difficulties arise: 1st, the presumption that the debt against the estate is paid or otherwise extinguished or. satisfied; and 2d, that it has lost its lien against the mansion-farm, the proceeds of which constitute the fund.

If the petitioner be correct in his construction of the will, he had a right of action, whether legal or equitable, against the executors, eo instanti the testator died.

■ Thomas Grant having died more than thirty years ago, what is there to repel the legal presumption that the debt is not paid, or that some arrangement has been made by which it is extinguished or otherwise satisfied ? It is distinct and independent of the indebtedness of G-eorge, so that no proceedings on the mortgage can be brought in aid of the petitioner’s claim against the estate. The debt may and will exist against the original debtor, although extinguished against the estate. In the scire facias on the mortgage by the executors of William Cooke, it is true that the devisees of Thomas Grant and his administrators are made parties. But that is a proceeding in the nature of a bill of foreclosure, and intended to sell the mortgaged premises for the payment of the debt. To that suit the heirs and representatives could make no defence, arising from an arrangement between them and the mortgagor, which can only be made when suit is brought on the debt or claim created, as is alleged, by the force of the will. The next question is, does the lien of the debts of a decedent remain upon the real estate, whether in the hands or possession of heirs, devisees, or purchasers, longer than five (formerly seven) years, unless secured by mortgage or judgment, or unless the requisitions of the act of 1797, and the subsequent act of the 24th Feb., be complied with ? In this case, although a period of more than thirty years has elapsed since the death of Thomas Grant, no steps whatever have been taken to enforce the claim. No action as the statute required has been brought, nor has there been any statement or claim filed to continue the lien: and this is conceded. But the petitioner relies for a continuance of the lien on the principle noted in Steel v. Henry, 9 W. 523, that if a testator devises his real estate to his executor to he sold, and directs the proceeds to be applied to the payment of his debts, he creates a trust for the benefit of .this creditors, and there is no limitation to the lien of such debts as regards his real estate thus devised. The authority of Steel v. Henry is not disputed, but its application may be well questioned. The fund now in court is the proceeds arising from the sale of the mansion-farm, which is carefully exempted by the testator from the power given to the executors to sell for the payment of. debts. The testator directs, that for the better enabling his executors to pay his debts, and to maintain his minor children, his executors shall proceed, to the collection of all his outstanding debts, and that they may sell and convey all such parts of his real estate (exeepting only the mansion-farm) as may be necessary for that purpose. The mansion-farm he dedicates to a special purpose: for, after devising it to his wife for life, he directs it to be sold, and the proceeds to be divided among his children. The petitioner therefore derives no aid under this state of facts, from the principle ruled in Steel v. Henry, for there is no pretence that so far as regards the mansion-farm, the executors are the trustees of the creditors for the payment of debts. There is therefore nothing to take this ease out of the operation of the statutes, and, consequently, the property and its proceeds are held free, and discharged from the lien of the debts.

The decree of the Orphans’ Court is affirmed.


source: Caselaw Access Project

author: Coulter, J.

license: Public Domain

text:
    Conklin v. Bush.
    Account render does not lie by an administrator of a widow for the profits of lafid conveyed by her husband against the grantee; nor will any action lie where the widow dies before recovering judgment in an action of dower.
    In error from the Common Pleas of Wayne county.

      July 10. This was an action of account render by the administrator of Hannah Bush. The first count alleged that the defendants were bailiffs; the second, that there was a tenancy in common, and the defendants received the profits as her bailiffs; the third alleged that she was seised of an undivided third, the profits of which were received by defendants as bailiffs.
    The case was this: — In 1826, S. Bush, the husband of the plaintiff’s intestate, devised all his real estate to her during widowhood.
    In 1888 he executed a deed conveying to one of the defendants certain land, in consideration of $1,000, and the agreement of the grantee to support and maintain the grantor and his wife during one-half of their joint lives.
    A similar deed was made to the other defendant.
    These deeds purported to be the deeds of the plaintiff’s intestate, as wife of the grantor. But she had never sealed them, and the acknowledgments were defective.
    After the death of her husband the widow continued to be maintained by the grantees for some time, when she left them and resided with her other children.
    Jessup, P. J., directed a verdict for defendants.

      Wheeler, for plaintiff in error.
    The court declined hearing Collins, contó.

      July 17.
   Coulter, J.

The deed from Simeon Bush, the elder, to his son Eli C. Bush, and also one from the same to his son James C. Bush, were properly admitted in evidence. Although the deed was not signed by Hannah, the wife of Simeon, and although her acknowledgment before the justice was defective in substance, yet these circumstances were important only as they affected the widow’s right of dower. The deeds on their face were good against Simeon Bush, the elder, and were of controlling effect in this cause, inasmuch as they established the character of the seisin and possession of the defendants, and manifested the right under which they claimed to hold the land described in the narr., adverse to all other persons. This disposes of the first error assigned. The second is that the court erred in saying that the deed was valid, and that the will could not be taken into consideration. The will was made on the 8th August, 1826, and the deeds were executed and delivered in the year 1833, and recorded in March of the same year. The deeds were, therefore, a revocation of the will pro tanto: and as the devise in the will was that the wife should have the profits of these lands during life, or widowhood, it was annulled by the deeds. This part of the case, therefore, depends upon the validity of the deeds. It is clear that the deeds did not bar the widow of her right of dower in these lands if she had asserted it during her life by the proper mode. What effect that circumstance has on the cause will be considered in a subsequent part of this opinion. But in all other respects the deeds were good and available to transfer the title to Eli and James. The consideration expressed in each of the deeds is $1,000, and an engagement under the penalty of $1,900, to keep and maintain in all respects the said Simeon, and Hannah, his wife, during their joint lives, and the life of the survivor — each son to keep and maintain them or provide for their maintenance equally. Simeon lived between three and four years after the execution of the deeds, and Hannah, his widow, survived him until 1844. During their joint lives they were maintained by their sons, and the widow was maintained several years after the death of her husband by these two sons; but for some reason, not apparent on the paper-book, she left them, and lived among her other children, but before her death returned. It does not appear that she ever complained, or ever made any demand from the two sons respecting her maintenance which they refused to comply with. She never made any demand of dower from her sons, nor alleged to any other person that she was entitled to dower. There never was a refusal, on the part of the sons, or either of them, to fulfil that part of the consideration of the deeds which relates to the support of Simeon and wife, and if there had been, they could have been compelled to it by action. To each deed was appended a receipt for the money consideration. The deed was therefore valid, being made for valuable consideration, and not impeached for fraud. The grantor'lived three or four years after its execution,' and until his death acknowledged its validity, and his widow never during her life impeached it. The deed, under all these circumstances, was valid, and passed the estate of Simeon to his sons Eli and John.

After the death of the widow, her administrator brings this action of account render to recover the profits of the estate under the will, which, he alleges, defendants received as bailiffs of the widow —and in the second and third counts, alleges a tenancy in common : and 'avers that the widow is entitled to one-third of the premises, or rents and profits, and that defendants were her receivers. In relation to the first count, which seems to be predicated on the will, and in fact can have no other foundation, it is only necessary to say that the will was revoked by the deeds, pro tanto. With regard to the tenancy in common, noné ever .existed, nor any colour for an allegation that it did exist. The plaintiff is therefore thrown on a right in the widow to one-third of the profits as her reasonable dower during her life. And this brings up the question most strongly debated in the cause, that is, Whether an action of account render can be maintained in Pennsylvania by the administrator of a widow to recover the arrears of dower which might be due the widow, or rather damages for the detention of dower against the alienee of the husband ? The entire novelty of such an action is a strong argument against its existence. In a long professional experience, I never knew such an action to be brought. There is no reported case where it was sustained. The action of account render can only be maintained where there is a contract express or implied: King of France v. Morris, 3 Yeat. 251; and on the same principle a strong doubt is expressed in Irvine v. Hanlin, 10 S. & R. 221, whether one tenant in common can maintain account render against his co-tenant, who receives the rents and profits as his own, denying the right of the other. No case, I apprehend, can be produced where the action has been sustained without privity between the parties, express or implied. Thus, the action will lie against a trustee for an account of the profits, because by the acceptance of the trust there is an implied engagement to account for the profits with the cestui que trust. So in all cases where moneys of infants are received, either by lawful guardians, or one not appointed, but assuming to act for the minor — in such cases, the law, in tenderness to those who are not able to take care of themselves, throws upon all persons who receive their moneys or profits an implied engagement to account. But in the case under consideration, there was no privity whatever. The defendants entered, and have held their land by virtue of deeds from the holder of the fee simple; they entered and held in their own right, cultivated the land, and made profits in their own right, and adversely to every one else. There is no express promise to account to any one, and the law cannot raise or imply one contrary to the truth of things, and the situation of the parties. The widow lived six or seven years after her husband, and never contradicted the deed, but received under it, nor asserted a right of dower; under these circumstances it would not be going too far to say that she impliedly ratified the deed, and waived her right of dower: Jourdan v. Jourdan, 9 S. & R. 269.

But in England the administrator of a widow cannot maintain the action of dower at law. The object after the widow’s death is not to recover or have judgment that dower shall be assigned to her; that would be impossible, but to recover damages for the detention of dower. But there can be no damages for the detention of dower, where the husband does not die seised, at least not until demand made either in pais or by bringing suit. But there was no demand made in this case by the widow, either in pais or by record, and the husband did not die seised. There were, therefore, no mesne damages, and where none existed, none can be recovered by her administrators. It is true, that in equity, by proceedings in Chancery, the administrator can recover mesne damages for th; detention of dower. But that is only where the husband died seised, and where there is no dispute about the right to recover dower. Whenever the right is disputed, it is first required to be established by an issue at law: Park on Dower, chap. 15, p. 329. If the widow dies after judgment, and before damages are assessed at law, her personal representatives cannot claim any. But a court of equity will, in such cases, entertain a bill for relief: Park on Dower, p. 330; Story’s Equity Jurisprudence, § 625. This, however, is when there has been judgment in dower, and .the right to recover damages, but the death of the widow occurs before they are assessed. In Sandback v. Quigley, 8 Watts, 463, Mr. Justice Rogers, who delivered the opinion of the court, says, that it would seem that in Pennsylvania a special action on the case may be maintained by the personal representative of the widow against the heir or alienee, if the widow die before damages are assessed. But the learned judge is speaking of a case where there would be a remedy by bill in chancery in England. That is, when the right to damages had been established by judgment or decree, but the widow died before they were assessed. That such was the intent is evident from what the judge says in the same opinion, that is, that the death of the plaintiff in an action of dower puts an end to the action, which cannot afterwards be sustained in any form. The action of account render, therefore, under the circumstances of this case, cannot be sustained, because there was no liability whatever on the defendants to account. These observations cover all the errors assigned.

Judgment affirmed.


author: Per Curiam.

text:
    Henning v. Werkheiser.
    íhe addition of subscribing witnesses to a sealed instrument, without the consent of one of the parties, avoids it as to Mm. And the subsequent ratification, by such party, of the subscription by one only of the witnesses, does not cure the defect.
    In error from the Common Pleas of Wyoming county.

      July 10. Debt upon an instrument sealed by both parties with two subscribing witnesses. Plea, non est factum. At the trial the plaintiff called one of the witnesses, who proved that he signed at request of the plaintiff in the absence of the defendant. That at that time the' name of the other witness was on the instrument, and that the defendant subsequently ratified the subscription by the witness.

      The other subscribing witness proved that he wrote his name at the request of plaintiff in the presence of defendant’s wife, but defendant was absent.
    Plaintiff then proved the signature of defendant by other testimony.
    The court left the question of execution to the jury, and this was the error assigned.

      3. B. Wright, for plaintiff in error.

      Sarrison Wright, contó,
    contended, that as there was no exception to the admission of the instrument, the charge could not be assigned for error, as the instrument was fully proved by other witnesses than those who subscribed it. He cited 5 Binn. 348, 529; 2 DalL 96; 6 g. & R. 312.

      July 10.

   Per Curiam.

The facts of the case are that neither of the witnesses was present when the article was executed, nor had the defendant’s authority to attest it when he subsequently subscribed it in the defendant’s absence, and at the plaintiff’s request. Marshall v. Gougler shows that this subsequent act of authentication superadded to a deed already complete, made the whole void, subject, however, to be restored by subsequent ratification by the party to be affected by it, as a new act of execution, or as an equivalent for a precedent authority. The defendant did in fact ratify the act of subscription by one of the witnesses, but not the act of the other, and enough of the canker was left at the core of the instrument to destroy it. As the fact of execution was put in issue, the plaintiff having called the subscribing witnesses without success, was not at liberty, as in the case of an unexploded deed, to give evidence aliunde of the execution of what had ceased by his misconduct to be a deed at all. There was therefore no execution of the article, as it appeared at the trial with the clause of attestation subscribed as an integrant part of it; and the jury should have been so instructed.

Judgment reversed.


text:
    Frear v. Drinker.

      Nul tiel record is no plea to a scire facias on a mortgage.
    The admissions of a mortgagor that the debt is due are evidence against a terre tenant to rebut the presumption of payment from lapse of. time, where it does not appear the terre tenant had an interest before the admission.
    The courts cannot prevent an attorney from being a witness, and addressing the jury in the cause.
    In error from the Common Pleas of Wyoming county.

      July 11. There were two cases argued together, being writs of scire facias on mortgages. The first question was, whether the court was right in entering judgment for plaintiff on the plea of nul tiel record, the defendant alleging a variance between the mortgage and the scire facias. 2. The court admitted the declarations of a terre tenant and of the mortgagor that the debt was due, to rebut the presumption of payment from the lapse of twenty-one years. 3. The court admitted the plaintiff’s counsel as a witness for him.
    In the second case there was evidence that the mortgagor had admitted that the debt was unpaid, more than twenty-one years having elapsed since the execution of the mortgage. But there being no evidence when the terre tenants acquired title, the court told the jury this admission rebutted the presumption of payment.
    Wright, for plaintiff in error.

      Case, contra.

      July 17.
   Rogers, J.

These were actions of scire facias on mortgages, to which the defendants in each case have plead nul tiel record.

It is contended there is error in giving judgment on the pleas of nul tiel record. Without examining the question, whether there is a substantial variance between the mortgages and the scire facias, it is a conclusive answer to the exception, that the plea, in its application to the case, is a nullity. There is nothing to which it can attach, as the action is not on the record, but of the mortgage itself, which is no record. The proper mode of taking the exceptions would be as an objection to the evidence being received, because of the variance between the writ and the mortgage deed.

In this case the plaintiff could amend — as also if determined against him on the plea of nul tiel record. But this was not done, as the defendant suffered the mortgage to be read without objection.

There is nothing in the exception to the deposition of James Brown. He is one of the terre tenants, and a party to the suit, and there can be no doubt his admission, that the debt was unpaid, is evidence, at least against himself.

It is also contended, an attorney is not a competent witness for his client. In England, it has been lately ruled, an attorney is not competent to give evidence under certain circumstances. Thus in Sorne v. Bacon, 6 P. L. J. 429, Mr. Justice Patterson granted a new trial when an attorney acted as advocate, examined the witnesses, and addressed the jury. And in Dunn v. Packwood, Ib. 431, Earl, J., also granted a new trial when he gave evidence and acted as an advocate. The furthest the court has yet gone is to discountenance the practice of acting in the double' capacity of attorney and witness, but there is nothing to prohibit an attorney from being a witness for Ms client when he does not address the jury- '

... It is said, and I agree, that it is a highly indecent practice for an attorney to cross-examine witnesses, address the jury, and give evidence himself to contradict the witness. It is a practice which, as far as possible, should be discountenanced by courts and counsel. But these cases are not open to this objection, because it appears negatively that the counsel did not address the jury. It is sometimes indispensable that an attorney, to prevent injustice, should give evidence for his client. It, however, leads to abuse, of which I have seen several examples, but at the same time I know of no law to prevent it. If -it requires a remedy it must be afforded by legislative enactment. All the courts can do is to discountenance the practice, and where the evidence is indispensable, to recommend to the counsel to withdraw from the cause. It is further said, the court erred in charging the jury that the terre tenants were bound by the admission of the mortgagor. We perceive no error in this point of the charge. Had it appeared that the declarations of the mortgagor were made after the interests of the terre tenants attached, or after the legal presumption of payment had arisen, a different and more difficult question would be presented. But this does not appear. The admissions refer to a period when the mortgagor alone was interested. It is certainly true that purchasers from the mortgagor must stand in the same situation as the mortgagor at the time of the purchase. They had notice of the mortgage, because it was on record, and they could protect themselves by inquiring of the mortgagee, wbat was tbe amount, if any, wbicb was due, and what was tbe precise state of tbe transaction between him and tbe mortgagor. If anything bad been said or done wbicb rebutted tbe presumption of the payment, it would apply to them as well as tbe mortgagor. Tbe purchaser was put on inquiry, and if he bad used ordinary care and diligence, be would have been assured as to tbe validity of tbe mortgage. If be has omitted this precaution, he has himself only to blame for it. Having bought subject to tbe mortgage, be is bound to pay tbe debt in right of bis land.

Judgment affirmed.


author: Bell, J.

text:
    Calder v. Chapman.
    If one obstructs a road approved of by the court, though only partially opened, he is liable to the penalty under the act of Assembly.
    The road as laid out by the viewers and approved by the court, cannot be altered in its course by the supervisors, even with the assent of the owner of the land.
    In error from tbe Common Pleas of Wayne county.

      July 11. This was a qui tarn action to recover tbe penalty for tbe obstruction of a road.
    It appeared that a road bad been laid out by viewers, and approved by tbe court, but not opened throughout tbe whole course. Tbe defendant cut a mill-race across a part of tbe road which had been opened — and tbe supervisor having attempted to build a bridge across it, was opposed by defendant and this action brought.
    Tbe court said be was liable under tbe act, and further, in answer to the defendant’s point, that tbe road as marked by tbe viewers, was tbe only one wbicb could be obstructed under tbe act, —this principle would only apply to tbe case of a road opened and used on a route differing from that surveyed by tbe viewers.

      Wheeler and Collins, for plaintiff in error.

      Dimmich, contri.
   Bell, J.

Tbe question principally turned upon tbe meaning of tbe 4th section of the act of 1836, and we think tbe construction given it by tbe court is within tbe letter, and in accordance with its spirit. Any other interpretation would put it in tbe power of an interested or mischievous person effectually to prevent the opening of a recorded road, as was done in this instance.

The notion that the road could be legally opened over other ground than that designated by the view and approved by the court, was rightly repudiated.

In some portions of the country this false idea is frequently practised upon, and is often productive of mischief. It should be discontinued. It is almost needless to say, that neither the supervisor nor any unofficial person possess the right to shift the locality of a recorded road, even though the latter happens to be the owner of the ground over which it runs.

Judgment affirmed.


text:
    Lillibridge v. Sartwell.
    The purchaser of land under an agreement that no timber shall be, cut until the land is paid for, has an interest in the timber which he may transfer, and his vendee may maintain an action for an injury to it. The stipulation being one which the owner of the land alone could enforce.
    In error from the Common Pleas of McKean county.

      July 11. Case for cutting timber. It appeared that Keating had agreed to give a contract for land to Barnaby and Upton, upon their making certain improvements, and by the articles they were to pay for the land in annual instalments. It was further agreed that no timber should be taken off the land unless the payments were made in advance. Barnaby and Upton entered, made the improvements, and paid part of the price. They then sold the timber to Sartwell, the plaintiff, and afterwards transferred their interest in the land to defendant, who had notice of the sale of the timber, and afterwards entered into a new contract with Keating for the purchase of the land. The defendant cut down and carried away the timber: and for that, this action was brought.
    The defendant contended, that until performance of the condition, Barnaby and Upton had no interest in the timber which they could transfer.
    The court was of opinion the plaintiff might recover.

      Johnson, for plaintiff in error.

      White, contrá.
   Rogers, J.

We see no error in the charge of the court, or in the answers to the points. The defendant having notice of the sale of the timber to the plaintiff, stands in the same situation as the original vendors, as they cut the timber and converted it to their own use after the sale to Sartwell. They unquestionably would have been liable to suit for a violation of the contract. They would not be permitted to allege they had no interest in the timber which they undertook to sell, and, by their flimsy pretext, to pocket the purchase-money, and have the timber also. This is too plain for argument: and as they would not be allowed to commit waste or fraud, neither will the defendant, who stands in their shoes. What was the nature of the interest which was acquired in the timber is immaterial, as this is not a contest between him and the owners of the legal title: That has nothing to do with this controversy. But the truth is, the vendors have taken possession of the property under the agreement and made valuable improvements, acquired an equitable title to the whole tract, including the timber, on the solitary restriction intended for the benefit of the owner of the legal title, that no timber should be cut off the land unless payment was made in advance. In every other respect they are the owners of the soil and all that is on it, and it is idle to say that they had not such an interest as was the subject of sale, and that no action lies for a breach of the agreement. Had this action been either trespass or trover, there would have been difficulty in sustaining the suit: but it is a special action on the case.

This is the only and appropriate remedy.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Thorne et al. versus Travellers Insurance Co.
    1. A foreign insurance company can transact business in Pennsylvania only under the system established by Act of April 11th 1868.
    2. Thorne was appointed agent of a foreign insurance company; the conditions required by the Act of 1868 not having been complied with, he gave bond with sureties to the company, conditioned for paying over moneys received by him, &c.; in suit by the company against him and his sureties for his not paying over, Held, that the plaintiffs could not sustain the suit.
    3. The legislature may prescribe the conditions under which foreign corporations may do business in the state, and the mode of appointing and qualifying agents.
    4. An action on a transaction prohibited by a statute cannot be maintained, although a penalty be imposed and the transaction be not declared void.
    " 5. Courts will not aid a party in an action grounded on an immoral or illegal act.
    6. The Act of 1868 requires a foreign insurance company to appoint an agent in the state, who may appoint subordinate agents and certify their, names and residences to the auditor-general, such agents not to act without a license from the auditor-general. Thorne was appointed in 1866, and continued to act until November 1870, having received no license. The certificate of the auditor-general in 1871, that Thorne had power to act in 1870, was not conclusive evidence of his agency in that year.
    7. The insurance commissioner, in whose office were all the insurance records, in 1874 certified a paper found in his office to be a copy of a “ list of agents” of the plaintiffs for 1870, amongst whom was Thorne ; the list having been certified by the general agent to the insurance department April 21st 1871. Parol evidence that the list was not there on the 15th of April 1871, was admissible to show that Thorne had not been certified whilst he was acting as agent and that his name had been surreptitiously placed in the office to deceive the auditor-general.
    8. If a record be fraudulently made it may he impeached by parol.
    9. The affidavit of claim specified items of the account against Thorne; the defendants, in the affidavit of defence, “deny each item in said specification, and say that they do not owe the plaintiffs the sum or any part thereof.” This put the burden of proof of the account on the plaintiffs, and the account could not be given in evidence without proof.
    October — 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Allegheny county: Of October and November Term 1874, No. 177.
    This was an action of debt, brought January 30th 1873, by The Travellers Insurance Company of Hartford, Connecticut, against Robert Thorne, John Heath and Andrew E. Baum.
    The plaintiffs were a life and accident insurance company, incorporated by the state of Connecticut; the suit was for the breach of the condition of a bond of defendants to plaintiffs, dated July 25th 1870, in the penal sum of $5000. The bond recited that Thorne had been appointed agent of the company for the western part of Pennsylvania, during the pleasure of the officers of the company, and that as such agent he would receive divers sums of money, chattels and other effects of the company, and would be bound to keep accurate accounts of such property and of his receipts and disbursements, and to deliver, account and pay over the same when demanded and directed, according to the instructions of the officers of the company.
    The condition was that Thorne should promptly pay to the company the amounts received from timo to time, either as premiums collected or advances made by the company for any purpose, and should perform all the duties as agent of the company, as directed according to their charter, by-laws, rules and regulations then existing or which might be adopted by the company during the time he should officiate as agent, and should deliver all the property which he might receive and hold as agent, to his successor or to such other person as the company or its authorized officers might direct.
    The plaintiffs’ affidavit of claim was that the defendants were indebted to them in the sum of $3877.21, the amount due for premiums and interest on policies issued by Thorne, as agent of plaintiffs, as stated in an annexed bill of particulars of the premiums and interest; with'the names of the insured, and the number of the policies, which plaintiffs claimed to recover by virtue of the above-mentioned bond, &c.
    The statement contained a great number of items of charges and also items of credit for commissions, showing the balance due from Thorne to be $3877.21, as set out in the affidavit.
    The affidavit of defence was:—
    1. That Thorne had not been appointed agent, in the form required by the laws of Pennsylvania relating to foreign insurance companies, and never acted for plaintiffs as their legally authorized agent.
    2. That before and at the time the persons named in the specifications were insured, the plaintiffs had not complied with the provisions of the several Acts of Assembly relating to foreign insurance companies, and did not appoint agents according to the laws of the Commonwealth.
    3. That Thorne did not receive the sums of money mentioned in the plaintiffs’ specification and not any part as the legally authorized agent of plaintiffs.
    4. Defendants “ deny each and every item contained in said specification, and say they do not owe the plaintiffs the sum or any part thereof.”
    5. That the conditions of the bond were fully complied with by Thorne; that all moneys received by him for the plaintiffs, after the date of the bond, were paid to them, after such deduction as Thorne was entitled to; that the defendants could not be more specific on this point because the specification did not give the numbers nor dates of the policies on which the items were alleged to have been received by Thorne.
    The Act of April 11th 1868, Pamph. L. 831, 1 Br. Purd. 796 et seq., consolidating, &c., the laws of Pennsylvania in relation to foreign insurance companies, provides :—
    Sect. 2. That any such * * * company, * * * desiring to transact business in this state, shall first appoint an agent or attorney resident in this state, on whom process can be served, and file in the office of the auditor-general * * * a certified copy of resolution of the board of directors, * * * appointing such attorney or agent, which appointment shall continue until another agent or attorney be substituted, and also a certified copy of the charter or other authority under which said company or association is organized. * * *
    Sect. 5. That every such * * * company * * * shall, before issuing or agreeing to issue any policy, or transacting any business whatever in this Commonwealth, forward to the auditor-general the statement required by this act, together with a written application for a license to transact their said business in this state, signed by the agent appointed by such company; and the said agent shall file a bond in five thousand dollars, with two sureties, residents of the county in which the principal business office of said agent is to be established, which shall be approved by the district attorney of said county, conditioned for the faithful discharge of all the duties enjoined upon him by the provisions of this act, and for the payment of all moneys received by him, or payable by him for the use of the Commonwealth; which bond shall be acknowledged * * * and recorded in the office of the recorder of deeds of said county and deposited in the office of the auditor-general, and certified copies thereof, under the seal of the recorder, shall be as good evidence as the original would be in any action brought against such agent or his sureties on such bond.
    Sect. 9. That the auditor-general shall have power to revoke and annul any license issued by him under the provisions of this act, when he shall be satisfied that the assets of said company or association have become impaired to the extent of more than thirty per centum thereof, or in case he shall ascertain that said license was originally obtained by fraud or misstatement, or for the misconduct of any agent. * * *
    Sect. 10. That every agent shall have full power and authority to transact business for the company for which he is licensed in each and every county of this Commonwealth, either in person or by any subordinate agent * * * acting under his authority and direction, and he shall be immediately responsible to the Commonwealth for the tax on all premiums received in the state, whether the same are received by him directly or through his subordinate agents; and the said agent may from time to time appoint as many subordinate agents as he may deem proper, and certify the names and residences of the same to the auditor-general, who thereupon shall issue to each of said subordinate agents, upon payment of the usual fee of his office, a certificate showing that the company has complied with the requirements of this act, and that the agent thereof has full power and authority to transact business in any part of this Commonwealth, and that he has designated such person as his subordinate agent; and no person shall act as a subordinate agent until he has received such certificate.
    Sect. 12. That any person receiving premiums or forwarding applications, or in any other way transacting business for any insurance company not incorporated by this state, without having received authority so to act for such company, agreeably to the provisions of this act, or in any other way violating the provisions of the same, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined five hundred dollars for each of-fence; * * * and any party doing business by receiving applications or forwarding policies to any person not duly authorized to act as agent, shall be fined in a like sum of five hundred dollars for each offence, and be prohibited from doing business in this state until such fine be fully paid.
    Sect. 13. For the better enforcement of the provisions of this ■act, it shall be the duty of the district attorneys, in any of the counties of this Commonwealth, to enforce the provisions and requirements of the same, for which each and every district attorney is hereby ¡empowered, * * * once in each and every year, to examine any license agent or agents transacting or carrying on business in -the .county for which said district attorney is elected, to examine the books of all such agencies, so as to satisfy himself that such agent or agents have fulfilled the provisions and requirements of this act, and paid all taxes due the Commonwealth, and make report thereof once in each and every year to the auditor-general; * * * and it shall be the duty of the said district attorneys to enforce this act and its penalties against any such agents, persons, companies or associations as aforesaid, by suit or suits at law, in the name of the Commonwealth. * * *
    The case was tried, April 30th 1874, before White, J.
    1. Under objection and exception, the plaintiffs read the account appended to their affidavit of claim.
    2. They then, under objection and exception, gave in evidence three certificates of the auditor-general, each dated January 28th 1871, viz.:—
    “ Whereas, the Travellers Insurance Company, located at Hartford, in the state of Connecticut, appointed and constituted William W. Allen their agent and complied with all the requirements of an Act, * * * approved the llt-h day of April 1868. And whereas, license was granted to said agent, in conformity with the act aforesaid, empowering him to transact business for and in behalf of said company in each and every county of this Commonwealth, for and during the period from January 1st to December 31st 1869. And whereas, said agent has certified to me the appointment of Robert Thorne, of Pittsburg, as subordinate agent of said company:
    “ Now, therefore, I, John F. Hartranft, Auditor-General of the state of Pennsylvania, in accordance with the requirements of Act aforesaid, do hereby certify that Robert Thorne was duly appointed and authorized by the said William W. Allen, to transact business as the subordinate agent of the said company for and during the term for which the aforesaid agent was licensed.”
    The other certificates were precisely similar, except that they certified the appointment of Allen and Thorne as agents for-the years 1870 and 1871, respectively.
    The plaintiffs then proved that papers produced were the monthly reports of Thorne made to the home office of plaintiffs, and that the reports of the life department were made up at the home office and sent to the agent for the purpose of having him send on the money.
    3. They then offered severally the monthly accounts of the life department for the months of June, July and August 1870, and the monthly accounts of the accident department for the month of September 1870, and previous months.
    The defendants objected to each offer; the offers were admitted, and several bills of exception sealed.
    The accounts of the life department showed a balance of §1260.32 due by Thorne; the accounts of the accident department, a balance of §1438.81 due by him.

      The plaintiffs then rested.
    4. The defendants called Thorne, and offered to prove by him and other witnesses that he never received from the plaintiffs, or from the auditor-general of the state of Pennsylvania, any appointment or license to act as agent for plaintiffs, and never received any notification that he had been appointed as agent for the said plaintiffs, for the purpose of showing that the plaintiffs had not complied with the law of this state prior to or at the date of the bond in suit.
    The offer was rejected, and a bill of exceptions sealed.
    5. Defendants then proposed to prove that plaintiffs did not comply with the requirements of the Act of April 11th 1868, prior or subsequent to the date of the bond in suit;, and that Thorne, the alleged agent of plaintiffs, was not authorized or licensed by the auditor-general of the state of Pennsylvania to act as subordinate agent of plaintiffs, and that he never received from the auditor-general the certificate prescribed by the Act of 11th April 1868.
    This was objected to by the plaintiffs.
    The court permitted the defendants to show that Thorne never received- a certificate from the auditor-general, rejected the remainder of the offer and sealed a bill of exceptions.
    Thorne then testified that he never received from the auditor-general any certificate of his appointment as subordinate agent or license as such.
    6. Defendants then proposed to prove that Thorne never knew that there was any certificate or authority issued to him as subordinate agent of said plaintiffs until alleged by plaintiffs on this - trial, to show that he never was lawfully authorized as agent of plaintiffs.
    This was objected to by plaintiffs, rejected by the court and a bill of -exceptions sealed.
    7. The defendants then offered to prove that he never received a certificate from the auditor-general to act as agent for the plaintiffs ; that being threatened with prosecution for violation of law, on or about April 15th 1871, he examined the records of the auditor-general’s office: that at that time the record or papers on file of the plaintiffs did not contain the names of any subordinate agents in the state, nor anything to show that the plaintiffs had any agents in this state; that after the plaintiffs gave in evidence the certificates of the auditor-general that the said plaintiffs had complied with the law, and appointed Thorne subordinate agent, he went to Harrisburg, and on Saturday last searched and caused to be searched the records of the insurance department, which, by virtue of the law. of 1873, is now the custodian and has charge of the records, books and papers of the auditor-general’s office, in relation to and touching all insurance business; that he found in said department two papers containing a large number of names, which papers purported to be lists of subordinate agents appointed by the said Travellers Insurance Company for the years of 1869 and 1870; that said papers'purported to be made out and sworn on the 21st day of April 1871; that he had examined the papers of .this company, on file in the auditor-general’s office, on or about the 15th day of April 1871, and found no such papers as now appear in the office of the aforesaid insurance department, in relation to the appointment of subordinate agents.
    The offer was objected to by plaintiffs, rejected by the court and a bill of exceptions sealed.
    The defendants then gave in evidence the following papers:—
    “List of agents who held the appointments of the ‘Travellers Insurance Company,’ to transact the business within the Commonwealth of Pennsylvania during the year 1869:—
    William W. Allen, .... Philadelphia;
    * * * * * * *
    Robert Thorne, ... . . . Pittsburg.
    * * * * * * *
    “I hereby certify the foregoing to be a true, complete and correct list of all agents appointed to transact business for the Travellers Insurance Company, within the Commonwealth of Pennsylvania, during the year 1869, according to the best of my knowledge and belief.
    Wm. W. Allen, General Agent and Att’y.
    Philadelphia, Pa., April 21st 1871.”
    “Insurance Department of Pennsylvania,
    Harrisburg, May 2d 1874.
    “ I hereby certify that I am Insurance Commissioner of Pennsylvania, appointed and commissioned in pursuance of an Act entitled ‘ An Act to establish an Insurance Department,’ approved the 4th day of April, A. D. 1873, and that in accordance with the requirements of said act, the books, papers and records in the office of the Auditor-General, relating to the business of insurance, have been transferred to this department and are now in my charge and custody, and that the foregoing is a correct copy of a paper found among the records aforesaid and endorsed ‘ List of Agents of the Travellers Insurance Company, in the state of Pennsylvania, 1869.’
    “In testimony whereof, I have hereunto set-my hand and caused my official seal to be affixed the day and year aforesaid.
    J. M. Forster, Insurance Commissioner.”
    “List.of agents who held the appointments of the Travellers Insurance Company to transact its business within the Commonwealth of Pennsylvania, during the year 1870
    William W. Allen,
    Philadelphia;
    Robert Thorne, * *
    Pittsburg.” * *

      Attached to this paper is a certificate of W. W. Allen ; also a certificate of J. M. Forster, Insurance Commissioner, precisely like those to the previous list, except that the agents are stated to be for the year 1870.
    8. Defendants then proposed to prove that on or about the 15th day of April 1871, plaintiffs, by their secretary, Rodney Dennis, stated, that prior to that date the company had not complied with the Act of 11th April 1868; but that the company could make out the papers so that it would appear in the auditor-general’s office that the company had complied with the law; that at that date the lists of agents sent to the auditor-general’s office for the years 1869 and 1870, and contained in certified copies in evidence, were not made out and filed in said office.
    This for the purpose of proving the company had not complied with the law, and had not the right to do business in this state.
    This was objected to by plaintiffs, rejected by the court and a bill of exceptions sealed.
    Defendants then gave in evidence an agreement, dated August 13th 1866, between the plaintiffs and Thorne, appointing him their agent.
    The agreement stipulated that the plaintiffs should provide a suitable office in Pittsburg, pay certain expenses, &c.; Thorne to devote his entire time to the interests of the company in soliciting business, circulating its literature, &c., and performing such acts as came within the scope of a faithful soliciting and supervising agent; and providing for his compensation.
    The territory over which Thorne was to exercise supervision comprised twenty-three counties in Western Pennsylvania.
    Appended to the agreement was a writing signed by Thorne, and dated September 19th 1870, releasing to other agents his supervision of eleven of the twenty-three counties.
    Thorne testified that he commenced in 1866 doing business for the plaintiffs under the agreement; that in January and September 1870, he had borrowed from the plaintiffs, by an agreement with their secretary, the money which had been received by him for premiums and which was then in his hands, the loan being about $2500; he prepared his account with the company, found the balance in his hands and retained it according to the agreement; all the money in the account was received prior to July 25th 1870, except an item of $137.30, received August 6th 1870. He settled with the secretary on the 5th of November 1870, being on the accident department, for all the money received by him beyond the loan and paid him $120, the balance then due the plaintiffs ; that closed his business with the plaintiffs. This included all that the secretary claimed of him, except what was embraced in the loan. He had appointed twenty-five or thirty agents under him ; he did business by sub-agents; sometimes hired them without consulting the company ; sometimes notified the secretary of their appointment ; he sent some of their commissions to witness; sometimes sent them directly to the agents; witness’ relation as agent was dissolved November 5th 1870. He gave other testimony for the purpose of showing that he was not indebted to the plaintiffs and generally to show that there was no liability of defendants on the bond.
    The defendants rested.
    The plaintiffs, in rebuttal, gave in evidence the license of the auditor-general to the plaintiffs, dated January 1st 1870, viz. :—
    “ Whereas, the Travellers Insurance Company of Hartford, Connecticut, have appointed William W. Allen their attorney, resident of this Commonwealth, on whom process of law can and may be served, and have, in all other respects, complied with the provisions of the Act, * * * approved the 11th day of April, A. D. 1868. And whereas, the said William W. Allen has applied in writing to the auditor-general of this state, for a license to transact business as the agent of the said company, in each and every county of this Commonwealth, and has complied with the provisions of the act aforesaid.
    “I, therefore, by virtue 'of the authority vested in me by the act aforesaid, grant a license to the said Travellers Insurance Company, to carry on their business, by their agent aforesaid, in each and every county of this Commonwealth, for the period of one year from the date hereof.”
    R. Dennis, secretary of plaintiffs, testified that he had not agreed to lend Thorne the money in his hands due to the company. He further testified as to the state of the accounts between Thorne and plaintiffs, and in contradiction of Thorne’s testimony.
    There was testimony from other witnesses to the same effect.
    The evidence then closed on both sides.
    The following are points of the defendants and the answers :—
    3. The three papers purporting to be certificates signed by the auditor-general, and dated June 28th 1871, are incompetent and insufficient evidence to prove that the plaintiff complied with the said Act of 11th April 1868, and there being no other evidence of this fact, the plaintiff cannot recover.
    Answer: “ Refused, because there is other evidence before the
    4. It was unlawful for the plaintiff to transact insurance business in this state by subordinate agents, not appointed and authorized agreeably to the provisions of the 10th sect, of said act; if Dr. Thorne was not appointed a subordinate agent in the mode therein prescribed when the plaintiff obtained the bond sued on, the bond is void and the plaintiff cannot recover.
    Answer: “ Refused. The bond of an agent may be given . before, and in contemplation of his regular appointment.”

      5. There is no competent or sufficient evidence in the cause, that Ur. Thorne was ever appointed in the mode prescribed in the 10th sect, of said act, and no evidence that he ever received from the auditor-general the certificate of appointment required by the 10th sect, of said act. Therefore the plaintiff is not entitled to recover in this suit.
    Answer: “ Refused. There is sufficient evidence to show that he was duly appointed a subordinate agent by the insurance company. His failure to take out a license from the auditor-general is not sufficient defence in this action.”
    6. If the jury believe the uncontradicted testimony of Dr. Thorne, that he never received from the auditor-general a certificate of his appointment or authority to act as a subordinate agent of plaintiff, in pursuance of the 10th sect, of the Act of 11th of April 1868, and had no such certificate or authority when he executed the bond in the suit, the bond is void and the plaintiff cannot recover.
    7. The certified copies of the list of subordinate agents for 1869 and 1870, filed by plaintiff in the auditor-general’s office, on the 21st of April 1871, given in evidence by defendants, taken in connection with the uncontradicted evidence of Dr. Thorne, that he never received a certificate of appointment or other authority from the auditor-general, is conclusive evidence that he was not authorized to act as subordinate agent in the mode prescribed by law; and if the jury believe this evidence he was not lawfully authorized at the date of the bond sued on ; and the bond is therefore void and the plaintiff cannot sustain this action.
    16. It was unlawful for the plaintiff to do business in this state by subordinate agents, without first having such agents appointed in the mode prescribed by the 10th sect, of the Act of April 11th 1868. It was plaintiffs’ duty, under this law, to see that Dr. Thorne was so appointed; and if the bond in suit was taken when Thorne had not the proper authority from the auditor-general, the bond is void, and plaintiffs cannot recover, although the company had complied with the requirements of the aforesaid act in all other respects.
    17. The three papers purporting to be certificates of the auditor-general, dated June 28th 1871, the certified copies of the lists of agents, sworn to 21st April 1871, together with the testimony of Dr. Thorne, show that Thorne had no lawful authority to act as subordinate agent when the bond in suit was executed. The bond is therefore void, and the plaintiffs cannot recover.
    The 6th, 7th, 16th and 17th points were refused without qualification.
    The court charged:—
    * * * “ It is contended, that, as the plaintiffs are a foreign insurance company, and have not complied with the provisions of the Act of Assembly of 11th April 1868, they could not legally do any business in this state, and can maintain no action relating to, or arising out of, their insurance business in the state. [But the plaintiffs have given in evidence the license issued by the auditor-general of the state, under the seal of his office, dated January 1st 1870, reciting that the plaintiffs have complied with the requirements of that act, and are duly authorized and licensed to do business in the state for the year 1870. That license, I instruct you, is conclusive evidence that the plaintiffs had a right to do business as an insurance company in this state during the year 1870.]
    [“ But the defendants further contend that Dr. Thorne never received from the auditor-general a license to act as subordinate agent for the year 1870, and he testifies that he never had such a license. The plaintiffs, however, have put in evidence the certificate of the auditor-general under the seal of his office, dated June 28th 1871, reciting that he was duly appointed and authorized to act as a subordinate agent for the year 1870. From these official documents, it would seem that the company had complied with all the requirements of the law, in reference to his appointment as a subordinate agent. He acted as such agent, in that capacity did business for the company, and received the money they now seek to recover from-him. As such agent, he gave the bond in suit, reciting that he was their agent, and he and his bail signed that bond. One condition of the bond was that he ‘shall well and truly perform all and singular the duties as agent of said company, as directed, according to the provisions of the charter, by-laws and regulations of said company.’ One of his duties as agent was to take out his license from the auditor-general. If he failed to do so, it was not the fault of the company, but his own neglect of duty. After receiving the money on the faith of his agency and on the faith of that bond, neither he nor his • sureties can resist payment of it, simply because he had neglected to take out his license. I therefore say to you that this is not sufficient ground of defence in this action.”] * * *
    The verdict was for the plaintiffs for $1874.08.
    The defendants took a writ of error, and assigned, amongst others, the following errors:—
    1. Admitting the evidence mentioned in the first bill of exceptions.
    2. Admitting the evidence mentioned in the second bill of exceptions.
    3. Admitting the evidence mentioned in the third bill of exceptions.
    4. Rejecting the offer mentioned in the fourth bill of exceptions.
    5. Rejecting the offer mentioned in the fifth bill of exceptions.
    6. Rejecting the offer mentioned in the sixth bill of exceptions.

      7. Rejecting the offer mentioned in the seventh bill of exceptions.
    8. Rejecting the offer mentioned in the eighth bill of exceptions.
    10, 11, 12, 13, 14, 18,19. The answers to the defendants’ 3d,
    4th, 5th, 6th, 7th, 16th arid 17th points.
    21, 22. The parts of the charge in brackets.

      Wier Gibson, A. M. Brown and S. A. Purvianee, for plaintiffs in error.
    An action founded on the violation of law cannot be maintained: Maybin v. Coulon, 4 Dallas 298. The test is whether the plaintiffs require the aid of the illegal transaction to establish their case: Swan v. Scott, 11 S. & R. 161; Thomas v. Brady, 10 Barr 164; Scott v. Duffy, 2 Harris 20. When an act is prohibited under a penalty it is void: Burkholder v. Beetem, 15 P. F. Smith 496; Holt v. Green, 23 Id. 198; Armstrong v. Toler, 11 Wheaton 258; Craig v. Missouri, 4 Peters 426; Robey v. West, 4 N. H. 285; Pray v. Burbank, 10 Id. 377; Bancroft v. Dundas, 21 Verm. 456; Boutwell v. Foster, 24 Id. 485. In relation to liability on contracts, &c., of insurance companies who have not complied with statutory requisitions, they cited : Ætna Ins. Co. v. Harvey, 11 Wis. 414; Buxton v. Hamblen, 32 Maine 448; Gibson v. Service, 5 Taunton 433; Lindsey v. Rutherford, 17 B. Monroe 245; Rising Sun Ins. Co. v. Slaughter, 20 Ind. 520.

      S. M. Raymond, O. B. M. Smith and A. IT. Miller, for defendants in error.
    The certificates of the auditor-general are conclusive: Act of March 31st 1823, sect. 1, 8 Sm. Laws 144; 1 Br. Purd. 628, pl. 41. Parol evidence is inadmissible to vitiate a record: Dickson v. Fisher, 1 W. Bl. 664; Adams v. Betz, 1 Watts 425.
    January 6th 1876.
   Mr. Justice Mercur

delivered the opinion of the court,

Although twenty-seven errors were assigned, eight only were urged on the argument. The main contention in the case arises under the 4th, 5th, 6th, 7th and 8th assignments. They will be considered together. They raise the question of the effect upon the rights of the defendants in error, on their failing to comply with the requirements of the Act of 11th April 1868, Purd. Dig. 796, pl. 28.

The defendants in error are a foreign life and accident insurance company, organized under the laws of the state of Connecticut. Thorne had been acting as an agent for the company, in the western part of Pennsylvania. This action was on a bond, executed by himself and sureties conditioned, inter alia, that he should pay over to the company the premiums or money received by him, for it, from any source. The claim was to recover premiurns received and retained by him. The bond is dated 25th of July 1870. lie ceased to actas agent the 5th of November of the same year. He is sought to be charged with money received by him as agent for the company during the intervening time. ’

’ The Act of 11th April 1868 is designed to establish a complete system, under which alone such a company, incorporated in another state, can transact business in this state.

Sect. 2, requires the company shall first appoint an agent resident within this state, and file in the office of the auditor-general a certified copy of the resolution appointing him.

Sect. 5, requires the agent to give a bond with sureties in the sum of five thousand dollars, conditioned for the faithful discharge of all the duties enjoined on him by the act. The bond shall be duly approved and recorded, and then be deposited in the office of the auditor-general.

Sect. 10, gives such agent power to transact business in every county of the Commonwealth, either in person or by subordinate agents appointed by him, and he “ may from time to time appoint as many subordinate agents as he may deem proper, and certify the names and residences of the same to the auditor-general, who thereupon shall issue to each of said subordinate agents, upon payment of the usual fee of his office, a certificate showing that........,

the agent, has full power and authority to transact business in any part of this Commonwealth, and that he has designated such person as his subordinate agent; and no person shall act as a subordinate agent until he has received such certificate.” Thus it appears a subordinate agent cannot be appointed otherwise than through and by this certificate of the auditor-general. Without such certificate he is absolutely forbidden to act by the most positive and imperative language.

Sect. 12, prescribes the punishment which shall be inflicted on any person who shall receive premiums, forward applications, or in any way transact business for the company, without having received authority so to do, agreeably to the provisions of the act. It declares “ he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined five hundred dollars for each offence.” The penalties given by this section are not limited to those illegally acting as agents, but extend to the company thus suffering them to act. It declares any party receiving applications from, or sending policies to, any person not duly authorized to act as agent, shall be fined in a like sum of five hundred dollars for each offence and be prohibited from doing business in this state until the fine is fully paid.

Sect. 13, enjoins upon the district attorneys of the several counties the duties of examining every licensed agent transacting business in their respective counties; and the books of said agency, “ once in each and every year,” and to enforce this act and all of its penalties against such agents, persons and companies as may offend against its provisions.

If Thorne was not duly qualified under the statute to actas agent, but did so act under instructions from the company, both he and the company were acting in violation of the express commands of the statute. If so acting, can the company sustain this suit, based on such an illegal transaction ?

There can be no doubt of the constitutional power of the legislature to prescribe the conditions under which a foreign corporation shall transact business in this state, and the manner in which its agents shall be qualified, before entering on their duties.

It has often been held that an action founded on a transaction prohibited by statute cannot be maintained, although a penalty be imposed for violating the law, and it be not expressly declared that the contract be void: Mitchell v. Smith, 1 Binn. 118; Seidenbender et al. v. Charles’ Administrators, 4 S. & R. 151; Swan v. Scott, 11 S. & R. 155; Columbia Bridge Co. v. Haldeman, 7 W. & S. 233; Thomas v. Brady, 10 Barr 164; Scott v. Duffy, 2 Harris 20; Holt v. Green, 23 P. F. Smith 198. In this last case it was said, the objection may often sound very ill in the mouth of defendant; but it is not for his sake the objection is allowed. It is founded on general principles of policy which he shall have the advantage of, contrary to the real justice between the parties. That principle of public policy is, that no court will lend its aid to a party who grounds his action upon an immoral or an illegal act. It is claimed, however, that conceding the rule that an illegal contract will not be enforced by a court, yet when it has been executed by the parties themselves, and the illegal object of it has been -accomplished, the money or thing which was the price of it may be a legal consideration between the parties for a promise express or implied; and the court will not unravel the transaction to discover its origin. We may concede this view of the law to be correct, as an abstract proposition ; yet it by no means controls this case. This is not an action against Thorne alone, for money had and received. It is against him and his sureties jointly, on their bond, for his alleged breach of duty as a duly appointed agent of the corporation. That he had been duly appointed” is recited in the bond to which they subscribed their names as sureties. They had no knowledge of the illegal conduct of Thorne or of the corporation. They were no party to any fraud. They had violated no provision of the statute. They have done nothing to estop their showing the whole character of the consideration on which the bond rests. Still further, the defendants in error did not seek to recover by giving the bond alone in evidence. They went further and opened up the whole transaction between themselves and Thorne. Without the aid of that transaction the company had no case. If the transaction was illegal, then the corporation itself showed it had broken the law, and that it could not recover without the aid of the illegal consideration — of one prohibited by statute. The sureties might undoubtedly invoke the protection of the law to relieve them from an obligation based on an illegal consideration, and entered into on a false representation of a substantial and controlling fact: Horbach v. Gray, 8 Watts 497; Miles v. Stevens, 3 Barr 21.

The next question which arises is, was the evidence offered and rejected admissible?

On the 13th of August 1866, Thorne was employed as an agent for the company, by an agreement in writing. He continued to act as agent until November 1870. He served in the same general manner after the passage of the Act of 11th April 1868, as before. It is now claimed by the company that Thorne was serving in 1870 as a subordinate agent under this Act of April 1868, although it is conceded that he never received any certificate of his license so to serve from the auditor-general. The company further contends that the certificates of the auditor-general and insurance commissioner furnish conclusive evidence of such appointment.

Let us then consider what those certificates show. The auditor-general’s is dated the 28th June 1871. It contains no averment of any power or authority in Thorne to act on or after its date ; but of a power or authority as having existed during the year 1870. It is not a license authorizing the doing of any act; but an assertion, made long after he had ceased to act as agent, that he had formerly been duly qualified as a subordinate agent.

It does not profess to state the time when the general agent certified to him the appointment of Thorne as such agent. It furnishes no copy of any paper filed, or of any record made in 1870. We know no authority which makes the certificate of the auditor-general conclusive evidence of a previously existing, but terminated agency. The statute requires not only that the facts shall justify the issuing of the license, but that the certificate shall be delivered to or received by the person before he can act as a subordinate agent. It gives no authority to the auditor-general of a subsequent year to issue a license for a year which has already expired.

The insurance commissioner (to whose office all the records w'ere transferred) certifies on the 2d of May 1874, to a copy of a paper then found in his office and attaches it to*his certificate. It is headed “List of agents who held the appointments of the Travellers Insurance Company to transact its business within the Commonwealth of Pennsylvania during the year 1870.” It will be observed that this language does not indicate an intention to nominate or designate any persons for appointment, or to perform any other services, but rather to declare that the persons in the list named had acted in that capacity. The name of Thorne is found on that list. A further examination of that list shows that it was signed, dated and sworn to by the general agent, on the 21st April 1871. There is nothing on either the list or the records indicating that the paper was filed before that day. If the list bore date in 1870, or if it was without date, there would be some force in the suggestion that it was deposited in the office in 1870; but the specific dates east great discredit on any such presumption. It cannot be said that either of the official certificates proves conclusively that the list was in the office of the auditor-general in 1870.

The offers are not to contradict the record; but to rebut a presumption sought to be deduced from the certificates, and to explain where the record is silent. Parol evidence is admissible for this purpose: Carmony v. Hoober, 5 Barr 305; Stark et al. v. Fuller, 6 Wright 320. It is proposed, substantially, to prove not only that the name of Thorne was not certified to the auditor-general while he (Thorne) was acting as agent, but that the list containing his name was surreptitiously placed in the office, so as to deceive the auditor-general, and thereby his certificate was fraudulently procured. It is true, a record is entitled to great sanctity, in law; but it must be an honest record. If fraudulently made, it may be impeached by parol: Lowry v. McMillan, 8 Barr 157.

It was strongly urged that the failure of Thorne to take out his license from the auditor-general constituted no defence. If his name had been certified to the auditor-general in 1870, this argument would be entitled to consideration, but the offer is to prove that it was not then certified. His license could not be taken out of the office until his name had first been certified in. Hence (excepting the declarations of Rodney Dennis), we think the evidence covered by these several assignments should have been received.

The first assignment is to permitting the itemized account appended to the claim of the defendants in error to be given in evidence without proof. This account purported to contain a statement of the several premiums received by Thorne, and of the names of the persons who had paid the same. In the affidavit of defence each and every item in this account had been distinctly denied by Thorne. This affidavit then cast the burden of proof on the defendants in error, and the learned judge erred in permitting the account to be given.’ in evidence without some proof having first been given to sustain it.

We discover no merit in the remaining assignments.

Judgment reversed, and a venire facias de novo awarded.