text:
    Goodwin et al. versus Sharkey et al.

    1. A lease was for a store-room, for two years, for the yearly rent of $2000, with the stipulation that if the lessee should, ‘‘ at any time during the continuance of this lease, attempt to remove or manifest an intention to remove his goods and effects out of or off the premises, without having paid * * * in full for all the rent which shall become due during the term of this lease * * * the whole rent for the whole term shall be taken to be due * * * and the (lessor) may proceed * * * to distrain and collect the whole as if by the conditions of this lease the'whole rent was payable in advance.” Held, that by the lease it was not required that the attempt or intention to remove the goods should be fraudulent in order to authorize a distress.
    2. The tenant becoming embarrassed sold and delivered goods to his creditors in payment of debts to them and made an assignment for benefit of creditors. Held, that the rent for the whole term had. become due and the landlord might distrain.
    3. The tenant assented to the distress and within four months proceedings in bankruptcy were commenced against him. Held not to be in fraud of the Bankrupt Law.
    4. Grant & McLane’s Appeal, 8 Wright 477, distinguished.
    November 23d 1875.
    Before Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Grawford county: Of October and November Term 1875, No. 59.
    This was an action on the case, brought October 4th 1871, by Charles E. Goodman, assignee for the benefit of creditors of Moses Arnold, against Edward É. Sharkey and John II. Cortelyou. On the 4th of November 1872, the bankruptcy of Moses Arnold and the appointment of Charles E. Goodman and John McKellop as his assignees were suggested, and their names as such assignees entered of record as plaintiffs. On the 20th of February 1873, by leave of the court, the names of E. A. L. Roberts and John Doherty were added as defendants, and a summons in case, March 7th 1873, issued against them. The writ was returned “Summoned” March 17th. The declaration, originally was for unlawful distress; after the substitution, the plaintiff's declared, averring that they had the right to recover the goods distrained under the bankrupt laws. There was also a count in trover.
    The distress was under a lease, dated January 20th 1871, between Edward Sharkey and John H. Cortelyou of the first part, and Moses Arnold of the second part. The lease was for the first floor of a building in Titusville, owned by W. B. and E. A. L. Roberts, for two years and ten months for the yearly rent of $2000, payable in sums of $500 each, on the first days of April, July, October and January, and $375 on signing the lease, for rent up to April 1st 1871. The lease further provides as follows :—
    “ And the said party of the second part further covenants and agrees that if he shall at any time during the continuance of this lease attempt to remove or manifest an intention to remove his goods and effects out of or off from said premises without having paid and satisfied the parties of the first part in full for all rent which shall become due during the term of this lease, that then in such case the whole rent for the whole term of this lease shall be taken to be due and payable, and the said party of the first part may proceed by landlord’s warrant or other process, to distrain and collect the whole in the same manner as if by the conditions of this lease the whole rent was payable in advance.”-
    The case was tried January 20th 1875, before Lowrie, P. J.
    The plaintiffs gave the lease in evidence; also evidence of the payment by Arnold, on'the 3d of July 1871, of $500, the rent due on the 1st of July.
    Goodwin, the plaintiff (a paper being shown him), testified that it was the assignment delivered to him by Arnold July 14th 1871, and that he took possession on the same day and locked up the store with all the goods.
    Arnold testified that he had executed the paper.
    The plaintiffs then offered the assignment, together with evidence that appraisers were appointed under it by the court, appraisement made, and bond, with approved sureties, duly given, and that defendants had actual notice of the assignment before the distress was made, which was within thirty days after the assignment, and that by mistake the assignment was left for record with the prothonotary; also, that about October 1st, the firm of Roberts & Co., of which E. A. L. Roberts was a member, bought the remainder of the term from the assignee, and also notice by Sharkey & Cortelyou to Goodwin not to let the property.”
    The defendants objected to the offer, it was rejected by the court and a bill of exceptions sealed.
    The plaintiffs then gave in evidence the record of the proceeding in bankruptcy in the District Court of the United States for the Western district of Pennsylvania, by which M. Arnold was adjudged a bankrupt, and the plaintiffs, on the 12th of October 1872, appointed assignees in bankruptcy.
    John Doherty, constable of Titusville, testified that he executed a landlord’s warrant, issued by Sharkey & Cortelyou, on the goods of Arnold on the leased premises ; he levied and made return July 18th 1871; on that day he found the sheriff in possession ; on the 11th of August witness took possession ; he sold at the expiration of five days. Sale took place August 25th 1871; the goods brought about $2400; he “advertised six days after the five days.”
    M. D. L. Sharkey, who acted for Sharkey & Cortelyou, testified, that on Sunday night he saw that Arnold was packing goods; Arnold spoke of moving ; he moved Monday morning early ; he said he owed Sharkey & Cortelyou rent; Cortelyou got a warrant; Arnold said he had failed and had made an assignment to Goodwin ; Cortelyou got the money from the sale under the landlord’s warrant, $2300 or $2400 ; E. A. L. Roberts got the money after-wards by an arrangement with him; Roberts said he would keep it. Arnold was willing the landlord’s warrant should be issued. The warrant was taken out very quickly after Arnold told witness that he had failed. The house belonged to Roberts Brothers ; Sharkey & Cortelyou took a lease of it; they owed the Roberts considerable rent when the levy was made under the landlord’s warrant.
    Arnold testified, that the value of goods sold by constable was about $3300. Witness had sent the goods to different creditors, whom he specified; some of the goods he sent' back to the seller without having opened them; he was sending off the goods all summer; he sent them away openly; some of the goods which he had prepared to send to his creditors were stopped by the sheriff.
    There was evidence for the purpose of showing that Roberts was a partner in the'firm of Sharkey & Cortelyou; and that the conduct of Arnold and defendants was fraudulent, &c.
    The plaintiffs having closed their evidence, the court directed a nonsuit to be entered.
    The plaintiffs took a writ'of error and assigned for error: rejecting their offer of evidence and ordering a nonsuit.

      J. M. Moyer, N. Sherman and S. T. Neill, for plaintiffs in error.
    The failure to record the assignment within thirty days did not render it void ; if parties interested have notice it is sufficient. It was competent to show actual notice by the possession of the assignee, and that the creditors had ratified the assignment: Burke’s Estate, 1 Parsons 472; Adlum v. Yard, 1 Rawle 163. As between assignor and assignee it was valid: Heath v. Page, 13 P. F. Smith 123. The defendants having within thirty days seized the goods, recording the assignment would have been a vain act: Seal v. Duffy, 4 Barr 274. The defendants were not creditors and could not be heard to object to the validity of the assignment: Frisbie v. Theyer, 25 Wend. 396; Hasking v. Belknap, 1 Denio 190. There was evidence to go to the jury, and even if slight, it should have been submitted: Bevan v. Insurance Co., 9 W. & S. 187. If the constable failed to advertise the sale properly and did not wait the five days after the seizure, the warrant and sale were void, and plaintiffs might recover in trover: Brisben v. Wilson, 10 P. F. Smith 452; Kerr v. Sharp 14 S. & R. 399. Whether there was five days’ notice was for the jury: Wenrich v. Heffner, 2 Wright 207. Whether Arnold permitted the distress was a material factj and was for the jury: Madara v. Eversole, 12 P. F. Smith 160. If the goods were in the assignee’s possession the distress was unlawful, there being no rent in arrear: Negley v. Morgan, 10 Wright 284; Borland’s Appeal, 16 P. F. Smith 470. There was no attempt of Arnold to. remove the goods to prevent the land-, lord from obtaining his rent, for which there were enough goods remaining. The removal of goods by Arnold’s creditors was not fraudulent: Bach v. Meats, 5 M. & Selw. 200. Defendants had no right to distrain against the assignee even if Arnold had made the assignment to defeat the landlord in collecting their rent, unless the assignee were a party to the fraud: Clifford v. Beems, 3 Watts 246; Purfel v. Sands, 1 Ash. 120; Morris v. Parker, Id. 187. The plaintiffs as assignees in bankruptcy could recover, if the defendants made use of the clause in the lease to obtain a preference: Tripp v. Armitage, 4 M. & W. 699; Hawthorne v. New Castle Railway, 3 Q. B. 734. Whether the clause in the lease was used to obtain a preference was for the jury: Loucheim v. Henszey, 27 P. F. Smith 305. If Arnold and Sharkey were in < ollusion in having the warrant issued, or Sharkey, knowing Arnold’s insolvency, made haste to issue it, it was fraud in gaining a preference over the other creditors; it was void under the bankrupt laws and the assignees in bankruptcy might recover in trover: Buchanan v Smith, 16 Wall. 277.

      J. B. Brawley and B. J. Reid, for defendants in error.—
    More than passive non-resistance by the debtor is necessary to create a forbidden preference: Wilson v. City Bank, 17 Wall. 473; Mays v. Fulton, 20 Id. 414; Sleek v. Turner, 26 P. F. Smith 142; Kemmerer v. Tool, 28 Id. 147. If the assignment had been regular in all respects it would not have deprived the landlords of their right to distrain: Knowles v. Lord, 4 Whart. 507. The assignee is the representative of the assignor: Vandyke v. Christ, 7 W. & S. 374; Mellon’s Appeal, 8 Casey 129; Fulton’s Estate, 1 P. F. Smith 211; Bullitt v. Church, 2 Casey 108; Lempriere v. Pasley, 2 Term R. 485; Cowden v. Pleasants, 9 Barr. 59. The landlord’s right is a lien: Knowles v. Lord, supra; Williams v. Leper, 3 Burrows 1886; Osborne’s Estate, 5 Whart. 267; Stevenson v. Wood, 5 Espinasse 200; Mayor v. Croome, 1 Broome 261; Briggs v. Gowry, 8 M. & W. 729; Newton v. Scott, 9 Id. 434; s. c. 10 Id. 471; Phillips v. Shervil, 6 Ad. & Ell. 944. This right is recognised in bankruptcy cases: Longstreth v. Pennock, 20 Wall. 576; Gibson v. Warden, 14 Id. 248; Morris v. Parker, 1 Ash. 187. There was no ratification here to validate the assignment: Hays v. Heidelberg, 9 Barr 207; Englebert v. Blanjot, 2 Whart. 244. By the terms of the lease the rent being payable when the distress was made, it did not matter that the term had not expired: Anderson’s Appeal, 3 Barr 219.
    November 26th 1875,
   Judgment was entered in the Supreme Court,

Per Curiam.

Upon the plaintiff’s own evidence on the trial in the court below, the defendants had a right to distrain. The whole rent for the term might have been made payable in advance, and there exists no reason why it might not be made payable at any time during the running of the lease, upon the happening of any contingency. The right of distress would immediately arise. By the terms of the lease the whole rent became due whenever the lessee should attempt to remove or manifest an intention to remove his goods and effects out of or off from the demised premises without having paid and satisfied the lessors in full for all rent which should become payable during the term. There is nothing here requiring -the intention or attempt to be fraudulent. Grant & McLane’s Appeal, 8 Wright 477, is not applicable, for there the distress was not on the demised premises and could not be sustained on the provision of the lease, but only under the Act of Assembly, which requires the removal to be clandestine and fraudulent. The rejection of the assignment, if an error, did the plaintiff's no injury. Their case would not have been helped by its admission. There was nothing in the evidence to raise any question of fraud upon creditors under the bankrupt laws. Though the distress was within four months of the petition, and though the bankrupt did consent to it, that, according to later decisions, was not enough. The lessors were in the lawful pursuit of their rights and no evidence was given of collusion with the bankrupt.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    Kepler versus Davis.
    1. A guardian had money of his ward ; he placed it in his wife’s hands at the instance of his surety, to preserve it from his creditors and his own control; she invested it in real estate, and by various transactions realized profit, with which she purchased property which was levied on under an execution for a debt of the husband. Held, that the money with its profits belonged to the ward and the accretions could not be seized as the husband’s.
    2. Trustees cannot derive advantage from the administration of the trust property.
    3. Profit derived from land purchased by a trustee with trust money shall go for the benefit of the cestui que trust.

      4. The ownership of a trust fund is unaffected by the change of the custodian, or where it is taken by a volunteer or one who has notice of the trust.

      5. Other moneys came into the wife’s hands from the minor sons of the husband, who had relinquished their earnings ; the husband took no part in the transactions of the wife. Held, that the creditors of the husband could not be benefited by her profit from these moneys.
    November — 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Orawford county: Of October and November Term 1875, No. 181.
    This was a feigned issue in a sheriff’s interpleader, framed December 9th 1874, in which Martha C. Kepler, claimant, was plaintiff and A. Stuart Davis was defendant.
    To August Term 1858 a judgment had been recovered against Samuel W. Kepler, the husband of the plaintiff; on the 2d of August 1865 this judgment was assigned to A. Stuart Davis, the defendant; it was revived, and to November Term 1874 an execution was issued, under which hotel furniture and household goods were levied on by the sheriff as the property of S. W. Kepler; his wife claimed that the goods belonged to her; this issue was made to try the ownership.
    The case was tried April 20th 1875, before Lowrie, P. J.
    The plaintiff testified that her husband, as guardian of his minor children by a former marriage, had in his hands $300 belonging to the minors, which he paid over to the plaintiff; that Dr. Jennings had given her ai horse for nursing a sick friend; that she sold the horse for $150 ; that in 1863 she bought real estate, in Clapville for $1300, of which she paid $400 down, being the $300 guardian money and money given her by her step-son; in 1864 she sold this land for $5000 ; she bought other real estate for $1200, $225 of the purchase-money she got from her brother, E. O. Crouse; she sold it for $2300; she purchased the “ Peiffer farm” for $4000, and in 1872 sold it for a house and lot in Meadville and $3500 ; with part of this she purchased the goods levied on; they were worth $2000 or $3000. The Clapville property was conveyed to Mrs, Kepler by A. S. Davis, the defendant and execution creditor, by deed dated 17th of March 1863, and he took a bond and mortgage for the unpaid purchase-money. Davis at that time and fox some time previously, and up to 1869 or 1870, had been the attorney of S. W. Kepler, the husband, and knew at the time of the purchase of the several properties, and that the titles had been taken in the wife’s name.
    Peter Kepler, one of the sons, testified that in 1862 he was eighteen years old; his father had given him his time; he gave his mother his bounty money, and other money he had obtained in the army, amounting in all to $153; if he came back he was to have the money, if not she was to have it.
    Pharos Kepler, another son, testified, that his father had given him his time by writing; he went into the army in 1863, being then a minor; at the time of his enlistment, and at subsequent times he gave his mother money amounting in the whole to $631.
    The plaintiffs then made the following offers of evidence:—
    1. To prove by S. W. Kepler and other witnesses that the witness was guardian for his children, and had money of theirs in his hands, and that he, at the instance of his surety, gave the money, $300, to his wife, who invested it in the.Clapville land, and this with the knowledge of the defendant.
    2. To prove that the witness had, since 1863, bought and sold real estate, and has now property of his own and has kept his bank account separate from his wife’s.
    On objection by defendant, both offers were rejected and several bills of exception sealed.
    The plaintiff having closed her case, the court directed a judgment of nonsuit to be entered and overruled a motion to take it off..
    The plaintiff took a writ of error. She assigned for error:—
    I, 2. The rejection of her offers of evidence.
    3. 4. Directing the nonsuit and refusing to take it off.

      O. It. Marsh and I). T. McKay, for plaintiff in error.

      J. W. Smith and W. It. Bole, for defendant in error.
    Having no separate estate Mrs. Kepler could acquire during coverture no property by her earnings; they belonged to her husband, and if she purchased with borrowed money or on credit, the property belonged to the husband: Bucher v. Ream, 18 P. F. Smith 421; Curry v. Bott, 3 Id. 400; Baringer v. Stiver, 13 Wright 129; Robinson v. Wallace, 3 Id. 129; Raybold v. Raybold, 8 Harris 308.
    January 6th 1876.
   Mr. Justice Woodward

delivered the opinion of the court,

The property in controversy here is part of the profits derived by the plaintiff in various transactions in which lands were purchased and sold by her between the years 1861 and 1872. The fund by which she was enabled to commence these transactions is stated in the bill of exceptions to have been made up of $300 received from her husband, Samuel W. Kepler, who held it as guardian for his children by a former wife; of $150 received from her son during the years 1862 and 1863 ; of $225 given her by her brother ; and of $85 given her by her son ; which two last amounts were paid on account of the purchase-money for two lots in Titusville, bought, as shown by the deed produced on the trial, on theT3th of January 1864. By the evidence contained in the defendant’s paper-book, the money traced into the plaintiff’s hands, in addition to the $300 she held as guardian, and transferred to her, consisted of $150 she had realized by the sale of a horse given her by Dr. Jennings; of $225 given her by her brother, Captain Crouse; of $153 received at different times from Peter Kepler; and $631 given and sent her by Pharos Kepler. These sums amounted to $1159, and including the $300, to $1459. The money thus obtained appears to have been invested with remarkable sagacity and success. In 1872, a property known as the “Peiffer farm,” was sold by the plaintiff for $3500, and a house and lot in Meadville. The furniture, which is the subject of this controversy, and which is worth from $2000 to $3000, was purchased with part of the proceeds of this sale.

Upon these facts, the defendant, holding a judgment obtained against Samuel W. Kepler, in 1858, has levied on the furniture in the possession of the defendant, and claims in this issue the right to press his execution on the ground that the entire accumulations which she has made are the property of her husband. In support of this claim, a multitude of recognised authorities are cited, and a series of established principles are invoked. No question is made as to the validity and binding force of the rules relied on in the argument, that in the case of a purchase after marriage by a wife the burden is upon her to prove distinctly that the purchase-money was paid with funds which were not furnished by her husband; that, in the absence of such proof, the presumption is violent that he furnished the means of payment; that when she has no separate estate, she can acquire no property with her earnings during coverture; and that her earnings are her husband’s, and if she purchased with borrowed money or on credit, the property belongs to him. The just and salutary provisions of the Act of 3d of April 1872, which now secure the separate earnings of a married woman to her separate use, do not reach this case, for they were made prospective only in their operation. So that, harsh and oppressive as the working of accepted legal rules might in this instance appear to be, the simple inquiry is whether the facts which affect these parties demand their application.

There can be no pretence that any portion of the moneys in question was received by the plaintiff from her husband, apart from the trust fund of $300, which he passed to her. If the evidence be resorted to in order to prove that Peter Kepler, who gave her $153, and Pharos Kepler, who gave her $631, were minor sons of Samuel W. Kepler, a resort to that evidence proves that all his claim for their earnings and upon their time had been relinquished. And on what principle can the accretion of the estate, in which these moneys were invested, be held to enure to the profit of her husband ? Nothing in the record shows on his part either act or participation, or even counsel or advice. It would be a novel rule that would give to a husband’s creditors, whether he be worthy or worthless, the benefit of a wdfe’s judicious management of her separate estate. Before the Act of 1872, her earnings were at their mercy, but the law has never held as embraced in such earnings, the results of the exercise of .the qualities of energy, prudence, sagacity and foresight.

So far as the defendant’s claim is founded on the transfer of the $300 in Samuel W. Kepler’s hands, as guardian, it is subject to a class of principles widely different from those invoked in the argument. While the money was physically in his possession, it never belonged to Kepler at all. Retained in his hands, unmixed with his private means, his creditors could not have reached it. But passed over to his wife, the theory is, that it became his property in her possession. Why, it is the very basis of the plaintiff’s case, that the transfer was made at the instance of his surety, in order to protect the fund as well from the grasp of his creditors as from his own control. Proof of this was offered in the testimony which the court improvidently rejected. In his hands the money was the property of his wards. It would be a burlesque of law, if the transfer to his wife should be held to extinguish their ownership, and transmute his bare legal title into a beneficial ownership, which a sharp creditor at his pleasure could absorb. The law works no such absurd wrong. The fund in the plaintiff’s hands belonged to the minors still. And the profits that have been realized by its use are theirs. It is a general rule established to keep trustees in the line of their duty, that they should not derive the least advantage from the administration of the property committed to their charge: Lewin on Trusts 288. If trust money be laid out by a trustee in buying and selling land, and a profit be made, that shall go, not to the trustee who has so applied the money, but to the cestui que trust, whose money has been so applied : Id. 289, citing Fosbrooke v. Balgny, 1 Mylne & Keene 226. So, an attorney, guardian, or other person invested with a fiduciary character, must account for all profits to the client, or infant, or other party whose means have been employed. Per Lord Brougham, in Docker v. Somes, 2 Myl. & K. 665. That the same rules prevail in Pennsylvania is proved by a whole current of decisions, of which Hall’s Appeal, 4 Wright 409; Robb’s Appeal, 5 Id. 45; Eshelman v. Lewis, 13 Id. 410; and Campbell v. McLain, 1 P. F. Smith 200, are only illustrations. Authority is scarcely needed for the proposition that the ownership of this fund by the wards remained unaffected by the change of its custodian. It is text law that a trust already in existence, and annexed to the present subject-matter, is created de novo as against a person who takes as a volunteer, or with notice, by a title derivative from the original trustee: Lewin on Trusts 205. No question of deception by the plaintiff, or of fraud upon the defendant, arises here. No clandestine action is alleged, and no step was taken in a surreptitious way. The defendant had full notice. He had been the attorney of Kepler, as the latter testified, from 1860 to 1869 or 1870, and the judgment he has bought, and is pressing, was obtained, as has been stated, in 1858. The wards to whom this sum of $300 and its accretions belong, are not parties to this litigation. The question as to the extent of their rights may well stand over. If the facts which the plaintiff alleged are established by a verdict, it is only necessary now to say, that in the adjustment of that question, neither the defendant, nor any other creditor of Kepler, can have any concern. Kepler bought and sold land in these years, had property when the levy was made, and kept a separate bank account from his wife’s.

In the stage the cause had reached, when the evidence specified in the second assignment of error was offered, it was properly rejected as irrelevant. If the trial had gone on, the propriety of admitting it as rebutting testimony would have depended on the character of the defendant’s evidence. But the offer to prove the facts connected with the transfer of the $300 to the plaintiff, at the request of the surety for the guardian, and with the knowledge of the defendant, should have been received. And the plaintiff had the right to require the submission to the jury of the evidence she had produced. The first and third assignments of error are sustained.

Judgment reversed and procedendo awarded.


author: Per Curiam.

text:
    Shamburg versus Noble.
    A motion was made in the court below to set aside a sheriff’s return of service of a writ as not being in accordance with the Act of Assembly; the motion was overruled and judgment by default was entered. A writ of error was filed, and before the record was removed, the sheriff obtained leavd to amend his return. Held, that the court had the right to allow the. amend ment.
    November 23d 1875.
    Before Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Crawford county: Of October and November Term 1875, No. 4.
    On the 24th of July 1874, a summons in assumpsit was issued, viz.: Orange Noble against A. A. Bailey, George Gilmore, C. E. Lufkin and G. Shamburg.
    The sheriff returned that he had served the writ on Lufkin personally; on Gilmore by leaving a copy at his residence; “on G. Shamburg by leaving with the clerk of the Mansion House in Titusville, his abode, a true and attested copy of the within writ,” and “Nihil” as to Bailey.
    On the 14th of August 1874, Shamburg obtained a rule to show cause why the service of the writ should not be set aside as to him, because the service was not in accordance with the Act of Assembly. On the 1st of September the rule was discharged. On the 2d of September judgment was entered against the defendants served, for want of a sufficient affidavit of defence and the damages liquidated at $2703.23.
    On the 1st of October a motion was made on behalf of Sham-burg to set aside the judgment as to him, because,
    1. The sheriff’s return of “ Served on G. Shamburg by leaving a true and attésted copy of this writ with the clerk of the Mansion House, Titusville, his abode,” is insufficient in law.
    2. There was no return of service of the writ of summons upon the defendant, Shamburg, which would warrant a judgment against him, without a voluntary appearance.
    3. There is no appearance for the defendant which would cure the defective service and return.
    On the same day the motion was overruled.
    On the 22d of October a writ of error at the instance of Sham-burg was filed in the court below.
    Subsequently the following proceedings were had in the court below:—
    “And now, August — 1875, O. Reed, Esq., sheriff, asks leave to amend his return in this case, as to service of summons on G. Shamburg, so as to read as follows, viz.: —
    “ ‘ August 1st 1874, served the original summon's in this case on the defendant, G. Shamburg, by leaving a true and attested copy thereof at the house in which he resides, with an adult member of the family in which he resides. O. Reed, Sheriff.’
    “ Crawford county, ss.
    “ J. T. Chase, being duly'sworn according to law, deposes and says, that he is, and on the 1st day of August 1874 was, deputy sheriff of Crawford county, and that on said,day, as such deputy sheriff, he served the original summons in the above stated case of Orange Nobler. George Gilmore.and others, on G. Shamburg, one of the defendants, by leaving a true and attested copy thereof with Mr. F. E. Cook, clerk of the hotel known as Mansion House, in the city of Titusville in said county, the said Shambui'g then resided in. said house, and the said F. E. Cook was an adult member of the family in which the said G. Shamburg then resided, he, tire said G. Shamburg, being temporarily absent at the time.”
    On the 7th of August, leave was granted to the sheriff to amend his return as-above.
    The defendant, Shamburg, assigned for error :—
    1. Discharging the rule to set aside the service of the writ as to Shamburg.
    2. Overruling the motion to set aside the judgment as to Sham-burg.

      R. Sherman, for plaintiff in error,
    referred to Act of June 13th 1836, sect. 2, Pamph. L. 572, 1 Br. Purd. 42, pl. 2. The return must show the mode of service: Weaver v. Springer, 2 Miles 42. The practice is to move to set aside the sheriff’s return if it appears to be defective: Winrow v. Raymond, 4 Barr 501; Bujac v. Morgan, 3 Yeates 258; Kleckner v. County of Lehigh, 6 Wharf. 66. A de bene esse appearance may be entered for the purpose of making the motion: Blair v. Weaver, 11 S. & R. 84; Bollard v. Mason, 16 P. F. Smith 138. The court, below may order an amendment after writ of error brought,'while the record remains with them: Wampler v. Shissler, 1 W. & S. 370; Spaceman v. Byers, 6 S. & R. 385; Berryhill v. Wells, 5 Binn. 60; Short v. Coffin, 5 Burr. 2730.

      B. J. Reid, for defendant in error.
    November 26th 1875,
   Judgment was entered in the Supreme Court,

Per Curiam.

The court below had a perfect right, even after a writ of error brought, to allow the sheriff to amend his return of service: Berryhill v. Wells, 5 Binn. 60; Spackman v. Byers, 6 S. & R. 385; Paul v. Harden, 9 S. & R. 23; Wampler v. Shissler, 1 W. & S. 370. The record in this case had not been removed and was still with the court below. The amended return is in strict conformity with the Act of Assembly. No doubt, upon the defendant’s affidavit that he had not received the writ and was ignorant of the suit, and showing that he had a good defence, the court would have opened the judgment and let him into his defence; As the record stands amended there is no error.

Judgment affirmed.


author: Chief Justice Agnew

text:
    Sweesey versus Kitchen et al.

    1. An attorney confessing judgment against a defendant may be called on to file his warrant; if it be entirely wanting in a power to appear and confess the judgment, the court to effectuate justice may strike off the judgment.
    2. Setting aside a judgment is a matter of sound discretion on the facts, and the refusal is not the subject of a writ of error.
    3. A judgment was confessed by attorney on a note commencing “ I promise to pay,” &c., with warrant attached, having unfilled blanks, and signed by defendant, viz.: “ And--empower any attorney, &c., to appear for--and confess judgment against--,” &c. Held, that the warrant was not void, and the attorney properly interpreted the blanks to be intended to be filled with “ me.”
    4. The note being that of defendant with warrant on the same paper, the person was the same as the one named in the note, that is the defendant.
    5. In such case, if the interpretation of the blanks be unsound, the defendant will be left to his remedy against the attorney.
    November — 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.

      Error to the Court of Common Pleas of Crawford county: Of October and November Term 1875, No. 167.
    The record of the court below showed as follows :—
    “ Cyrus Kitchen & Co. v. ■Jefferson Sweesey.
    ] >No. 494 November Term 1874. . J
    “November 20th 1874. By virtue of a power of attorney, Pearson Church appears for the defendant and confesses judgment against him for one thousand and ten dollars and fifty-five cents.”
    On the 5th of April 1875, rule was granted to show cause why judgment should not be opened and the defendant let into a defence. Testimony was taken under the rule. On the 21st of May 1875, the defendant moved to have the judgment stricken off because there was no warrant of attorney authorizing the entry. On the same day, the court ordered, “the original note on which the judgment was entered to be filed,” and overruled the motion.
    The note filed was as follows :—
    “ $962.84. Meadville, Pa., May 27th 1874.
    “ Four months after date, for value received, I promise to pay to Cyrus Kitchen & Co., lessees, Meadville Agricultural Works or order, nine hundred sixty-two 34-100 dollars, and in case of default of payment at maturity one additional 5 per cent, for attorney’s fees for the collection of the same. And-empower any attorney of record in this Commonwealth or elsewhere to appear for'--and confess judgment against-for the above sum, together with 5 per cent, additional with costs of suit, release of errors and without stay of execution; and for value received -do waive the right and benefit of this state or any state exempting property, real or personal, from sale ; and if levy be made on land --do also waive the right of inquisition and consent to the condemnation thereof, with full liberty to sell the same on fi. fa. with release of errors. Jerrerson Sweesey.”
    The defendant took a writ of error and assigned for error: entering the judgment on the note filed and refusing to strike it off.

      W. B. Bole, for plaintiff in error.

      P- Church, for defendant in error.
    Opening a judgment is discre1 -ry and the refusal to open is not the subject of review: Bunce v. Wightman, 5 Casey 335; Fox v. Cash, 1 Jones 207; Nice v. Bowman, 6 Watts 26; Kalbach v. Fisher, 1 Rawle 323; Kellogg v. Krauser, 14 S. & R. 143; Withers v. Haines, 2 Barr 435; Skidmore v. Bradford, 4 Id. 296. The blanks could have been filed but by “I” and “me;” therefore it is to be taken as if they were so filled; the words of a contract are tobe taken most strongly against the party using them: White v. Smith, 9 Casey 186; 2 Parsons on Contract 494.
    January 6th 1876.
   Chief Justice Agnew

delivered the opinion of the court,

There was a regular judgment in this case by the confession of an attorney at law; an officer of the court authorized generally to act for parties and in their stead. He may be called on to file his warrant of attorney. If it be entirely wanting in a power to appear and confess the judgment, the court in order to effectuate justice may strike off. the judgment, especially if the attorney be insolvent or otherwise irresponsible. But the setting aside of a judgment is a matter of sound discretion on the facts, and a refusal to do so is not in itself the subject of a writ of error. The writ lies to matters in the record only: Bunce v. Wightman, 5 Casey 335; Springer v. Springer, 7 Wright 518; Aurentz v. Porter, 12 Id. 335. The judgment here being regular on its face there is nothing to be reached by the writ. The court, however, thought it proper to require the defendant’s attorney to file the note containing the warrant to confess judgment. But that does not change the real state of the case. Though wanting in accuracy, because of some of the blanks not being filled, it is not wholly defective and void. It contained a warrant of attorney to confess judgment against some one, and this the attorney interpreted to mean the defendant himself. The word “me” was wanting in the blank, but certainly it could not mean another, for no other person is named or referred to, and the signer of the paper had no power or right to confess the judgment against another. The note and power were in one instrument. The note was the note of the defendant, and the debt was his, so that the person named in the note, or referred to by the pronoun, was the same person intended in the power, that is, himself. As to the absence of the pronoun “ I” in some of the blanks, nothing is substantially wanting, for the copulative conjunction “ and” supplies the necessity of repeating the pronoun “ I.” Sentences so constructed are not absolutely ungrammatical, as the idiom of the language admits of many things being understood though not directly expressed. That is eminently so in the use of the personal pronouns. Looking, therefore, at the whole writing, note and warrant in one instrument, we cannot say that the power was so totally wanting, that the attorney had no right to interpret it as a warrant to him to confess judgment for the defendant and against him. In such a case a court will leave the party to his remedy against the attorney, if he thinks the interpretation of the warrant is unsound and improper.

Judgment affirmed.


text:
    Mapes et al. versus Second National Bank of Titusville.
    1. In .a suit by a bank against endorsers of a note discounted for the accommodation of the drawer, the affidavit of defence was that “ at and before the time that defendants endorsed the note,” they inquired of the cashier and one of the directors of the bank whether it would be safe for them to endorse, and that these officers informed them that they considered the drawer perfectly good, and they would be safe in endorsing ; that the officers knew the representations to be false, and that they made them to deceive defendants, who would not have endorsed but for the representations. Held to be insufficient.
    2. Such declarations, although wilfully false, made by the officers, not in the course of their duties as officers, or agents of the bank, could not affect the bank.
    3. 0’IIare v. Second National Bank, 27 P; P. Smith 96, as to the National Currency Act, followed.
    November 23d 1875.
    Before Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to tbe Court of Common Pleas of Crawford county: Of October and November Term 1874, No. 233.
    This was an action of assumpsit brought May 21st 1874, by the Second National Bank of Titusville against George E. Mapes and T. T. Mapes," partners as Mapes Brothers.
    The cause of action was the following notes, which had been discounted and were held by the plaintiffs; the notes were discounted for Garfield’s accommodation :—
    “ $1200. Titusville, Pa., 12-19-1872.
    Four months after date, for value received, I promise to pay to Messrs. Mapes Bros., or order, twelve hundred dollars, at the Second National Bank of Titusville, Pa.
    Padl’W. Garfield.”
    (Endorsed)
    “ Mapes Bros.”
    “ $1000. • Titusville, April 1st 1873.
    Sixty days after date, I promise to pay to the order of Messrs,
    Mapes Bros., one thousand dollars, at Second National Bank of Titusville, Pa., value received.
    Paul W. Garfield.”
    (Endorsed)
    “ Mapes Bros.”
    The defendants filed an affidavit of defence, averring:—
    “ 1. That Garfield was a borrower from the'plaintiff to an amount exceeding one-tenth of their capital in violation of the National Currency Act of June 3d 1864, and therefore the plaintiff’s claim could not be recovered.

      “ 2. That at and before the time that defendants endorsed the first of said notes for the benefit and accommodation of said Garfield as before mentioned, which they were by him requested to do, they took the precaution before doing so to inquire of the cashier of plaintiff’s bank and of one of the directors thereof, as to the financial condition of said Garfield, and whether or not it would be safe for them (defendants) to endorse for him, and were informed by said cashier and director that they considered said Garfield perfectly good financially, and that the defendants would be safe in endorsing for him: that when said representations were made by said bank officers they (the said officers of plaintiff’s bank) knew they were false, and that said Garfield was then very largely indebted to said bank for borrowed money, and was insolvent and unsafe, and that it would not be safe for defendants to endorse for him, and that said false representations were made, and said large indebtedness and insolvency of said Garfield were concealed by said bank officers, in bad faith, to benefit said bank and injure and deceive defendants; and that defendants, relying on said representations, endorsed both said notes, and would not have endorsed either of them had it not been for said false and fraudulent representations made by the officers of plaintiff’s bank, as above stated; that defendants went to plaintiff’s bank to make said inquiries before endorsing said paper, for the reason that they knew that said notes, if endorsed by them would be negotiated in said bank, as said Garfield did all, or nearly all, his banking business in said bank, and its officers had a more full and intimate knowledge of his affairs than any other banking institution or individual known to defendants.”
    Judgment was entered August 7th 1874, for want of a sufficient affidavit of defence, and the damages liquidated at $2371.62.
    The defendants took a writ of error and assigned for error, the entering of judgment for want of a sufficient affidavit of defence.

      Neill Neill and B. J. Reid, for plaintiffs in error, as to the second averment in the affidavit of defence,
    cited Lancaster Co. Bank v. Albright, 9 Harris 228.

      M. O. Beebe and R. Sherman, for defendant in error.
    November 26th 1875,
   Judgment was entered in the Supreme Court,

Per Curiam.

As to the first point raised, by the affidavit of defence, that the contract sued'on was illegal because it was a loan to Garfield in excess of ten per cent, of the entire capital of the bank already loaned to him, it has been decided recently by this court adversely to the plaintiffs in error, in the case of O’Hare v. The Second National Bank, to be reported in 27 P. F. Smith 96.

As to the second point, the alleged fraudulent representation of the cashier and one of the directors of the bank,' the affidavit is clearly insufficient. All that is alleged is that when asked as to the financial condition of Garfield, these officers replied that they considered said Garfield perfectly good financially and thát defendant would be safe in endorsing for him. How can such a declaration, not made in the course of their duties as officers or agents of the bank, even admitting it to have been wilfully false, affect their principal? It would be subversive of every well-settled principle which regulates the relation of principal and agent and the responsibility of the principal for the acts and declarations of his agent.

Judgment affirmed.


text:
    Reserve Township Road.
    1: As a general rule a road cannot be located on another regularly laid out and. opened.
    2. A road may be laid on another so far as it may be necessary to reach the point.of ending called for in the order.
    3. Viewers in order to reach the ending named in the order, laid out a road on another of thirty-three feet width; the court below confirmed the road and ordered the whole to be opened forty feet wide. The Supreme Court affirmed the order except so far as it increased the width of the old road; as to that part the order was quashed.
    4. The jurisdiction to widen roads is special, under Act of May 8th 1850, sect. 8, and the adjacent landowners must have notice of the proceedings.
    5. Hess Mill Road, 9 Harris 217 ; Southampton Road, 9 Harris 356, followed.
    October 18th 1874.
    Before Agnbw, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Certiorari to the Court of Quarter Sessions of Allegheny county : Of October and November Term 1874, No. 28.
    On the 2d of November 1872, a number of inhabitants of Reserve township petitioned the court for the view of a road “from the northern end of Stanton avenue, &c., to a point on the Troy Hill road at or near its junction with the Spring Garden Run road.” A view was appointed, who, on the 7th December, reported a road between the points named. On the 18th of January 1873 a review was appointed, who, on the 3d of March, reported a road, beginning at the north end of Stanton avenue and running by various courses and distances, — different from those reported by the view, — “ to the centre of the Troy Hill road, thence along the centre of said road * * * and along the same * * * to a point near the junction of the said Troy Hill road with the Spring Garden Run road.” On the same day the report was approved nisi “ and the width of the road reported, when confirmed, to be forty feet.”
    Exceptions were filed to the report. On the 6th of December 1873, the exceptions were overruled and the road as reported by the re-viewers was confirmed absolutely.
    The petitioners for the view removed the record to the Supreme Court, by certiorari.
    Amongst other errors they assigned the following:—
    7. Confirming and fixing width of road reported by re-viewers, so as thereby to widen to 40 feet about 57 perches of the old Troy Hill road, long since fixed at 33 feet in width.
    8. Confirming road reported by the re-viewers, which adopts about 57 perches of the Troy Hill road (33 feet wide), when proposed road ought to lead first into said Troy Hill road at a point about 70 perches distant from where reported road does.
    9. Confirming road reported by re-viewers, when same is located so as to lead to the Troy Hill road at a point about 70 perches distant from its junction with the Spring Garden Run road, instead of being located to a point on the Troy Hill road at or near said junction, as the petition asks.

      Bayne Magee and Marshall Patterson, for certiorari.—
    The viewers had no power to locate a road running to the Troy Mill road at a point materially different from its junction with the Spring Garden Run road: Lower Merion Road, 8 P. F. Smith 66; Boyer’s Road, 1 Wright 257; Hellertown Road, 5 W. & S. 202. When the new road struck the Troy Hill road it ended: Noble Street, 5 Wharton 333; Southampton Road, 9 Harris 366. The old Troy Hill road could be widened only by a proceeding directly for that purpose; it could not be done by a collateral proceeding without notice to parties interested: Vernon Township Road, 20 P. F. Smith 23; Norriton Township Road, 4 Barr 338; Schuylkill Co.’s Appeal, 2 Wright 463; Church Road, 5 W. & S. 200; Act of May 8th 1850, sect. 8, Pamph. L. 715, 2 Br. Purd. 1277, pl. 40.

      A. M. Watson, eontrá.
    October 26th 1874,
   Judgment was entered in the Supreme Court,

Per Curiam.

The general rule is that viewers cannot locate a road upon another legally laid out and opened. But it has been held that they may do this so far as it may be necessary to reach the point of termination called for in the order: Road from West Chester Road to Chester and Germantown Road, 2 Rawle 421; Hess Mill Road, 9 Harris 217; Southampton Road, Id, 356. The mere objection to the adoption of the Troy Hill road, so far as it was thus necessary to reach the point of termination at or near the Spring Garden Run road, would not alone be tenable; but the court in this case added seven feet to the width of the Troy Hill road, without a petition for the widening of the road under the Act of 8th May 1850, Brightly 1277, pl. 40, or an allowance of damages for the land thus taken or release filed. The jurisdiction to widen roads is special, and the landowners adjacent should have notice of the purpose, otherwise they may be misled. A landowner could not know by the petition to locate a new road that an intention to widen an old one existed and might forbear to pursue his claim for damages when he found that the viewers had adopted the old route. Justice can be done in this case by confirming the report of viewers and order of the court below, except as to the widening of the Troy Hill road. It is therefore ordered and decreed that the proceedings of the Court of Quarter Sessions be confirmed except so much thereof as orders the widening of the Troy Hill road to the width of forty feet, as to which excess of seven feet the order of the court is quashed.


text:
    McClure versus Commonwealth.
    1. A guardian was appointed by a court not having the special jurisdiction, and in good faith money of his ward was received by him; he settled his account in the proper court. Held, that he was estopped from denying his liability in an action by a subsequent guardian to recover the money.
    2. Both he and his surety were bound by his official bond; the guardian having no defence in equity, his surety could have none.
    3. The jurisdiction to appoint guardians in the special case being limited to the Orphans’ Court of the minor’s residence, the appointment by the court of another county would be reversed, but the general jurisdiction over the appointment being vested in every Orphans’ Court, that which is done under an appointment by a court not having jurisdiction in the particular case is not necessarily void.
    October 13th 1874.
    Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the District Court of Allegheny county: Of October and November Term 1874, No. 145.
    This was an action of debt, brought to April Term 1873, of the court below, by-the Commonwealth of Pennsylvania, with the suggestion of Abram J. Fulkman, guardian, &c., of Wilson S. Fulkman and others, minors, &e., as plaintiffs, against Abdiel S. McClure impleaded with Frank Duff.
    The suit was founded on an official bond dated January 27th 1866, by Frank Duff, guardian of the above-named minors, with McClure as his surety.
    The declaration was in the usual form, the breaches being that he had refused to pay over the money of his wards. -
    The pleas were that Duff had not been duly appointed guardian, the Orphans’ Court of Allegheny county which appointed him, not having jurisdiction, as the children were residents of Crawford county, and that the bond was void by reason of the Orphans’ Court having no authority to take it.
    A case stated was afterwards filed, which set out the following facts:—
    Mary M. Hood, owning real estate in Allegheny county, by her will gave legacies to the minors, to be paid from the real estate which she ordered to be sold, but named no person to make the sale; Abram S. Pulkman, the executor, desiring to make a private sale, under the Act of April 18th 1853 (Price Act}, applied to the Orphans’ Court of Allegheny to appoint a guardian for the minors.
    The petition for the appointment of a guardian was by “ Abram S. Eulkman of Crawford county,” and set out that the minors were his children under the age of fourteen years. Duff was appointed guardian on the 27th of January 1866, the children then residing in Crawford county.
    On the same day he entered into the bond in suit with McClure as his surety, in the penalty of $3000, conditioned for the performance of his trust, &c.; on the same day the bond was approved by the Orphans’ Court of Allegheny county; on the same (iay Eulkman, and Duff as guardian, petitioned the Orphans’ Court of'Allegheny county for leave to make a private sale of the real estate of the testatrix; a private sale was decreed; it was made and approved by the Orphans’ Court of Allegheny county, and Duff received from the executor $1084.81, as the interest of his wards; the guardian, on the 17th of February 1866, settled an account by which there appeared to be in his hands a balance of $1016.82. The minors wei’e never residents of Allegheny county. On the 21st of March 1871 the Orphans’ Court of Butler county — the minors then living in that county — appointed Abram S. Eulkman guardian of the minors, and on the 14th of March 1873, the Orphans’ Court of Allegheny county removed Duff from his trust as guardian and ordered him to pay to Eulkman $1049.72, the balance in his hands as guardian; Duff had previously become insolvent and absconded, and the money was not paid over.

      “ If under the foregoing state of facts the court is of opinion that the plaintiff is entitled to recover, then judgment to be entered in favor of the plaintiff, and against Abdiel McClure, defendant, for the sum of $1049.82, with interest from March 14th 1873, with costs of suit; otherwise judgment to be entered in favor of defendant for costs.”
    “April 18th 1874, judgment was entered on the case stated against the defendant, Abdiel McClure, as follows: For the Commonwealth in ’the sum of $3000, the amount of the obligation or bond sued on ; and for the plaintiff, Abram S. Eulkman, guardian of Wilson, William and George M. Eulkman, in the sum of $1049.82, with interest from March 14th 1873, the amount of damages assessed and for cost of suit.”
    The defendant took a writ of error, and assigned for error, the entering judgment for the plaintiff on the case stated.

      O. Easbrouck, for plaintiff in error.
    The Orphans’ Court of Allegheny had no jurisdiction to appoint a guardian for these minors; therefore the bond and its approval were void and no recovery could be had upon it: Robinson v. Zollinger, 9 Watts 169.

      J. Bredin, for defendant in error.
    Even if Duff’s appointment was invalid, inasmuch as he received money under it, both he and his surety are estopped from setting that up as a defence: Egbert v. Darr, 3 W. & S. 517; Foster v. Commonwealth, 11 Casey 150; Zeigler v. Sprenkle, 7 W. & S. 175; Franklin v. Hammond, 9 Wright 507; Herman on Estoppel 32, 110, 113, 155, 272.
    October 26th 1874,
   Judgment was entered in the Supreme Court,

Per Curiam.

While it is true that the jurisdiction of the Orphans’ Court in the appointment of a guardian in the special case, is limited to the Orphans’ Court of the county in which the minor resides, and the appointment of the Orphans’ Court of another county, may be reversed and set aside, the general jurisdiction over the appointment of guardians is vested in every Orphans’ Court. In such case it would be going too far to hold everything done under an appointment, by a court not having the special jurisdiction in the particular case, to be entirely void. Hence, where, as in this case, the guardian erroneously appointed, has acted in good faith received the money of his ward, and settled his account before the proper court, and thus has recognised his liability, he is clearly estopped from denying his liability for the money, in an action for its recovery, by a subsequent guardian duly appointed in his place after his removal from his guardianship. His bond in such case is clearly sufficient to bind him. His surety in the bond is also estopped, because his bond is not so wholly void, that it would not be supported at common law. He cannot avoid it by the mere plea of non est factum, for its execution is not denied. He can show its invalidity only by unravelling the proceeding and going back to the beginning, to rely on the want of jurisdiction of the court in making the appointment. Rut it is just at this point he is met by the fact that his bond being good in form and substance, he must share the fate of his principal on the footing of estoppel. He engaged for his principal, by the terms of his bond, and his principal having no defence in equity, he can have none. We are therefore of opinion both principal and surety are estopped in such a case as this, from denying the validity of the bond on the ground of a want of special jurisdiction to make the appointment.

Judgment affirmed.


author: Mr. Justice Mercur Askew, C. J.

text:
    Frew et al. versus Clarke.
    1. The following paper was held to he testamentary: u Know all men by these presents, that I, James McCully * * * do order and direct my administrators or executors, in case of my death, to pay to Robert I). Clarke, the sum of $75,000, as a token of my regard for him and to commemorate the long friendship existing between us. Witness my hand and seal this 17th day of April a. d. 1872, James McCully [seal].”
    2. An instrument in any form, if the obvious purpose is not to take place till after the death of the person making it, operates as a will.
    3. In an issue devisamt vel non, Clarke was a competent witness, under the Act of April 15th 1869, to prove the execution of the paper.
    4. Clarke testified that he saw McCully sign the paper; many other witnesses testified that in their opinion the signature was McCulIy’s: Held, sufficiently proved under the Wills Act, April 8th 1833, sect._6.
    5. After such proof the burden of proving fraud or imposition was upon the person alleging it.
    6. If McCully signed the instrument, the presumption was that he did so voluntarily and with full knowledge of its contents.
    7. As relevant to the question of imposition, evidence might be given by the plaintiff that the decedent was worth $1,500,000, had neither wife nor child and that his relations with plaintiff were intimate.
    8. When a witness is called to prove a signature from his knowledge of the signer’s writing, the better rule is that he should be cross-examined as to his means of knowledge before testifying to the genuineness of the signature.
    9. Bowen v. Goranflo, 23 P. F. Smith 357, adhered to; Boyd v. Boyd, 16 P. F. Smith 283, distinguished.
    November 2d 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1875.
    This was a feigned issue under a precept directed by the Register of Wills of Allegheny county to the Court of Common Pleas, to try whether a certain paper presented to him for probate, was the will of James McCully, deceased. The precept was filed in the Common Pleas, April 6th 1874, and the issue was framed with Robert D. Clarke as plaintiff and William Erew and others, heirs and next of kin of James McCully, defendants.
    The decedent died March 26th 1878, having been killed by the overturning of a carriage in which he was riding. He left collateral relatives only.
    The following is the paper :—
    “Know all men by these presents, that I, James McCully, of Pittsburg, Pa., do hereby order and direct my administrators or executors, in case of my death, to pay Robert D. Clarke the sum of $75,000, as a token of my regard for him, and to commemorate the long friendship existing between us.
    “ Witness my hand and seal this 17th day of April, A. D. 1872.
    James McCully. [l. s.]”
    “$75,000.

      The issue was tried April 19th 1875,- before Stowe, J.
    For the plaintiff J. F. McEnulty testified:—
    That he was teller in the American Bank ; that McCully did business at that bank ; that witness had seen him write and was acquainted with his handwriting. The paper in controversy was then shown to the witness and plaintiff proposed to ask him “ Whether in his opinion this signature, ‘James McCully,’ is or is not the signature of McCully, from his (the witness’) knowledge of _ his handwriting.”
    Defendants objected for the reason that the defendants claim to cross-examine the witness as to the means of his knowledge, when acquired, how long he has been acquainted with the handwriting of James McCully, and this for the purpose of having the court pass upon the question as to the knowledge that the witness has upon the question in relation to which he is about to give an opinion.
    The objection was overruled and a bill of exceptions sealed for defendants.
    Witness was then asked, from his knowledge of James MeCully’s handwriting, to state whether or not that is his, in witness’ opinion ?
    He answered, “Well, I believe it is.”
    On cross-examination witness said, that he had seen decedent signing his name in a dividend book at the American Bank two or three times ; he never saw him write anything but his name ; besides this, witness had handled his checks ; he could not say that his opinion was founded on seeing him write just those three times ; he believed he would be able to say it was decedent’s signature from those three times; seeing any waiting three times, he believed he could say of any signature whether it was genuine or not; decedent had paid the checks that witness handled at the bank.
    . The plaintiff was then offered to testify.
    The .defendants objected to his competency on the ground that he was the plaintiff and a party in interest. The court admitted him to testify and sealed a bill of exceptions for the defendants.
    He then testified that he saw the decedent sign the paper on the day of its date, about nine or ten o’clock in the morning.
    On cross-examination he said that the body of the paper was in his own writing ; he made the seal on the paper ; it was signed in the Diamond Savings Bank ; there were clerks in the bank when it was signed ; witness had gone by appointment to meet decedent that morning to sign the paper; the appointment had been made three days before ; he gave the paper to decedent that morning to read, and decedent read it. Witness had copied the paper from one furnished him which had been prepared under legal advice; at the time the paper from -which he copied was prepared, he was advised by counsel that it would operate as a will; decedent was about seventy-one years old when he signed the paper; the paper had been in plaintiff’s possession from that time up to the time it was presented to the register for the probate.
    The plaintiff then offered the paper in evidence.
    Defendants objected to the offer for the following reasons :—
    1. The said paper being in the handwriting of Robert D. Clarke, who is the plaintiff and sole legatee and only person alleged to have seen James McCully sign his name thereto, the same has not been proved as required by law, by the oaths of two witnesses.
    2. The said paper being under seal, and delivered to the plaintiff by James McCully when signed by him, the same was by reason of said delivery irrevocable and is not in law a testamentary paper.
    3. The said paper is not on its face, as matter of law, more than an attempt to make a gift and is invalid.
    4. The evidence shows that it is in law an imperfect paper, and the burden is upon the plaintiff to show by clear and convincing evidence that James McCully intended it to operate as a testamentary paper, and all the facts connected with it, the plaintiff must show affirmatively before giving it in evidence.
    The objections were overruled and a bill of exceptions sealed for the defendants.
    The paper was read to the jury and the plaintiff rested.
    For defendants, Robert Woods, Esq., testified, that he had for a long time been counsel for McCully, had seen him sign very many papers and knew his signature well; in the opinion of witness the signature to the paper was not decedent’s.
    A number of witnesses testified, that in their opinion the signature to the paper was not that of the decedent.
    There was evidence also that the decedent frequently before, signing an instrument wrote his name on other pieces of paper and let them lie about without destroying them ; there was some evidence also that the faculties of decedent were not as bright as they had been formerly ; that the plaintiff was not a relation to him and was not particularly intimate with him ; and that decedent was under no obligation to plaintiff.
    In rebuttal a large number of witnesses testified that in their judgment the signature to the paper was in the handwriting of the decedent.
    The plaintiff testified, that he resided in Pittsburg; that decedent took much interest in plaintiff’s business and had for a number of years endorsed notes to a large amount for his accommodation. Four or five months before the date of the paper, the plaintiff and decedent casually met; decedent inquired how he was getting on with his business, and voluntarily said that he was getting old and could not live long; that he was on a good deal of plaintiff’s paper and wished to make such provision for plaintiff that in case of decedent’s death plaintiff would not need to have another endorser. About a month afterwards at another interview decedent asked plaintiff if he “had got that paper ready,” plaintiff said he did not understand about getting any paper ready ; and said he would get one ready ; decedent at that time repeated the conversation they had previously had. Plaintiff went to Edgar Cowan, Esq., at Greensburg, Westmoreland county; Mr. Cowan had been his counsel previously; plaintiff told him his conversation with decedent; after he had so done, Mr. Cowan prepared a paper for him, the one propounded for probate being copied from it, except the amount; a few days afterwards he saw decedent, who again referred to the matter ; he showed him the paper drawn by Mr. Cowan, which had the names cut out for fear he might lose it and the names be exposed ; decedent told him to have it ready on the succeeding Wednesday, four days afterwards, and told witness to put in $75,000. On the Wednesday appointed they met; decedent read it, signed it, and handed it to plaintiff.
    Plaintiff proposed to show the value of the estate left by James McCully, and that the estate at the time of his death, was of the value of about a million and a half of dollars, the purpose of the offer being to rebut the allegations of fraud and imposition practised upon Mr. McCully in the matter of the testamentary paper in controversy, and for the purpose of showing the relation that the testamentary gift to Robert I). Clarke bears to his entire estate.
    This was objected to by defendants as incompetent and irrelevant.
    The objection was overruled and a bill of exceptions sealed for defendants.
    There was evidence that the decedent was a shrewd man, that his health and mind had been sound till the time of the accident; that he was a man of strong attachments and dislikes.
    There was very much additional evidence on each side; relating principally to the questions of fraud and imposition on the decedent in the execution of the paper.
    The following are points of the plaintiff with their answers :—
    1. The writing of April 17th 1872, in controversy in this case, is a testamentary writing.
    2. Subscribing witnesses to a testamentary writing are not necessary to its validity.
    These points were affirmed.
    4. There is no evidence in this case to warrant the jury in finding that the signature of James McCully to the paper in controversy was procured by fraud or imposition; and there is no evidence in the case of want of testamentary capacity in James Mc-Cully.
    Answer: “ This point is double and involves two distinct propositions. The first is refused. The second is affirmed.”

      The defendants’ fourth point and its answer were :—
    It being shown by the evidence clearly, and not controverted by the defendants, that the body of the alleged testamentary paper is in the handwriting of the plaintiff; that he was not related by blood to James McCully ; that it is without subscribing witnesses ; that he is the sole person to be benefited thereby; that it was produced by the plaintiff after Mr.Cully’s death, and that no witnesses other than the said plaintiff are claimed to have seen said McCully sign said paper, Such admitted facts raise a strong legal presumption against the genuineness of the signature of James McCully to said paper, arid that the alleged testamentary paper was not the voluntary act of said McCully, it lies upon the plaintiff to show by clear and satisfactory evidence that the said James McCully signed said paper, and at the time of so doing had knowledge of its contents, and intended it to be valid' and operative as a will.
    Answer: “ This point is refused as it stands. The facts alleged do not raise a strong legal presumption, nor any legal presumption against the genuineness of the instrument in suit, but they do present such a case as is calculated to excite suspicion, and makes it the duty of the jury to be vigilant and careful in examining the evidence in support of the genuineness of the instrument.
    “ Where a party writes or prepares a will under which he takes a benefit, that is a circumstance which ought generally, arid in connection with the other facts stated in this point, in this case, undoubtedly calls upon the jury to be vigilant and jealous in examining the evidence in support of this paper. This, however, is a mere circumstance of suspicion demanding vigilant care and circumspection in investigating the case, so that they may not recognise the instrument as the will of James McCully, without the same has been fairly and satisfactorily established by the evidence.”
    The court charged:—
    [“ The first question that arises in this case is : is the signature to this paper the actual writing of James McCully ? Did he write the name James McCully on this paper, or did some one else write it ? Upon this question the burden of proof is upon the plaintiff. That is to say — the plaintiff must satisfy you that such is the case. Otherwise he cannot recover in this suit. No will is valid in Pennsylvania (except in certain cases of which it is not pretended this is one), unless in writing, signed at the end thereof and proved by at least two witnesses. It is not necessary, as we have already stated to you, that those two or more witnesses should have seen the deceased write his name or heard him acknowledge that he had written it. It may be proven by parties who are able to swear that the signature is in their opinion the genuine writing of the testator, as has been done in this case.]

      u It is urged, however, by counsel for plaintiff, that he having called two witnesses (the plaintiff, who says he saw McCully write the name, and another who swears that in his opinion the signature is genuine), who have testified to the signature as that of James McCully, this alone makes out a primá facie case, which casts the burden of proof to the contrary on the defendants and makes it their duty to overcome it by their testimony, otherwise it is your duty to find in favor of the validity of the paper in question.
    “ This we do not recognise as law. It is true that the evidence of those two witnesses made a case under which it was our duty to submit the alleged will to the jury, and under which, if the defendants had offered no proof, the jury should find for plaintiff in this action. But where the defendants, as they did here, offer evidence tending to show that the signature is not genuine, and rebutting the allegations of plaintiff upon that question, the cause goes to the jury upon all the evidence submitted to it, and it is incumbent upon the plaintiff, under all the evidence upon the genuineness of the signature, to satisfy you reasonably and fairly that the signature is genuine.
    “ The burden of the proof as to this, is upon the plaintiff from first to last, and if he has failed thus to satisfy you under all the evidence, your verdict should be for the defendants.
    [“ But in case you should be satisfied that James McCully did actually sign his name to the paper set up here as his will, then the rule changes and the burden of proof is cast upon the defendants, and it is their duty to satisfy you that fraud or imposition was practised upon McCully, and that he signed the paper in ignorance of its contents, or that somebody wrote the body of the instrument above the name of McCully without his knowledge and consent.
    “ The law will not presume this. Indeed the law under this state of facts presumes the other way, in favor of honesty and fair dealing, where an instrument, deed or will, is shown to have been signed by a person, and no other proof is adduced. The law presumes without more, that it was signed voluntarily and with knowledge of its contents. And so where a paper bears no sufficient evidence of fraud upon its face, but presents just such an appearance as it would naturally have, if everything were done just as it is alleged by a party that it was done, and the fact of the signature being genuine is established, the legal presumption of the genuineness and validity of the whole paper as set out arises, and before a jury can properly find the other way the evidence in the cause must fairly lead it to that conclusion, and if it fails to do so, their verdict should be in favor of the validity of the instrument.
    “ To conclude, then, the first question is, did James McCully actually write the name James McCully on the paper which is now claimed to be his will ?

      “ As to this, the law casts the b„urden of proof upon the plaintiff, who must satisfy the conscience of the jury that such is the fact under all the evidence in the case.
    “ If you are not fairly satisfied as to this, then your verdict should be for defendants, but if you are, the question arises, did James McCully sign the paper after it was written out in ignorance of its contents, or was the instrument written over the signature of McCully by some one without his knowledge or consent, as alleged by defendants ?
    “ Upon the second question the law requires the defendants to adduce evidence which shall fairly satisfy you that their allegations in this respect are true, otherwise your verdict should be for plaintiff.”]
    The verdict was for the plaintiff.
    The defendants took a writ of error: they assigned twenty errors.
    I, 2. The admission of J. McEnulty to testify as to decedent’s signature without permitting defendants first to cross-examine him as to his means of knowledge.
    8. Allowing Clarke the plaintiff to testify.
    5. Admitting the paper in dispute in evidence.
    10. Admitting evidence of the value of decedent’s estate.
    13, 14, 16. The answers to the plaintiff’s first, second and third points.
    17. The answer to the defendants’ point.
    18, 19. The parts of the charge in brackets.
    20. Submitting to the jury to find whether, under all the evidence, Mr. McCully executed the paper in suit as a testamentary paper, there being in law no sufficient proof of it as required by the Wills Act of 1833, and no sufficient evidence upon which the jury could find for the plaintiff.

      J. Hahell, J.. H. Hampton and T. M. Marshall, for plaintiffs in error.
    The paper in evidence as a will is an imperfect paper; the presumption is against such a paper operating as testamentary: 1 Redf. on Wills 170, sect. 7. It could not be donatio causa mortis because not made in pcriculo mortis: Michener v. Dale, 11 Harris 59; Harris v. Clark, 3 Comstock 93. This paper cannot be treated as testamentary: Parrish v. Stone, 14 Pick. 198; Holly v. Adams, 16 Verm. 206; Williams on Personal Prop. 421-24; Plumstead’s Appeal, 4 S. & R. 545; Grant v. Levan, 4 Barr 424; Stein v. North, 3 Yeates 324; Shield v. Irwin, Id. 389; Murry v. Murry, 6 Watts 353; Patterson v. Rickabaugh, 21 P. F. Smith 454. The paper at most was but an obligation to pay money: Mack’s Appeal, 18 P. F. Smith 233. If it had testamentary quality, that was destroyed by delivery: Trough’s Estate, 25 P. F. Smith 115; Campbell’s Estate, 7 Barr 100; Withers v. Weaver, 10 Id. 391; Kidder v. Kidder, 9 Casey 268; Lisenbigler v. Gourley, 6 P. F. Smith 166; Pringle v. Pringle, 9 Id. 281; Zimmerman v. Streaper, 25 P. F. Smith 147. The paper if testamentary was not legally proved under the Wills Act, April 8th 1833, Pamph. L. 249, 2 Br. Purd. 1474; Grabill v. Barr, 5 Barr 441. Granting the testimony of Clarke that he saw the decedent sign the paper to be equivalent to the testimony of a subscribing witness, there must be facts and circumstances equivalent to another witness before it could be given in evidence: Carson’s Appeal, 9 P. F. Smith 493; Hock v. Hock, 6 S. & R. 47. When the party who is to receive a large pecuniary benefit draws the will, keeps it in his possession after it is signed and is the only witness to prove its execution, it requires clear proof that the testator had actual knowledge of the contents: Boyd v. Boyd, 16 P. F. Smith 283. Clarke was not a competent witness. An object to be preserved by the statute was equality in. the parties in interest. If Clarke be a witness this equality would be destroyed: Karns v. Tanner, 16 P. F. Smith 297; McBride’s Appeal, 22 Id. 481. Whether the paper was made with the design to have a testamentary effect was for the jury although by legal construction, the paper was testamentary : Carson’s Appeal, supra. The evidence of defendants overthrew the primfi facie case of plaintiff and the burden was then on him to prove by two witnesses that the decedent signed the paper with a knowledge of its contents: Mackensie v. Yeo, 3 Curteis 125 (1 English Eccles. Rep. 396).

      M. W. Aeheson, for defendant in error.
    A will is an instrument which is in its own nature ambulatory and revocable; these qualities form the characteristics of wills: 1 Jarm. on Wills 11, note 1. If it is the intention of decedent that it should operate after his death it is testamentary : Thorold v. Thorold, 1 Phillimore 1 (1 English Eccles. Rep. 11); Habergham v. Vincent, 2 Ves. Jr. 204; Morrell v. Dickey, 1 Johns. Ch. 153; Hunt v. Hunt, 4 N. H. 434; 1 Redfield on Wills 272; Turner v. Scott, 1 P. F. Smith 126; Frederick’s Appeal, 2 Id. 338; Rose v. Quick, 6 Casey 225; Patterson v. English, 21 P. F. Smith 458. Plaintiff was competent under Act of 15th April 1869: Pamph. L. 301, 1 Br. Purd. 624, pl. 16; Bowen v. Goranflo, 23 P. F. Smith 357.
    January 6th 1876.
   Mr. Justice Mercur

delivered the opinion of the court,

This was a feigned issue to try the genuineness and testamentary character of a written instrument, of which the following is a copy, to wit:—

“ Know all men by these presents, that I, James McCully, of Pittsburg, Pa., do order and direct my administrators or executors; in case of my death, to pay Robert D. Clarke, the sum of seventy-five thousand dollars, as a token of my regard for him, and to commemorate the long friendship existing between us.
Witness my hand and seal this 17th day of April, A. D. 1872.
$75,000.
James McCully. [l. s.]”

Twenty errors have been assigned, yet all the substantial matters may be considered in answering the following questions:—

1. Is the instrument of a testamentary character ?

2. Is the signature thereto in the handwriting of James McCully ?

3. Was his signature obtained through fraud or imposition, or in his ignorance of the contents of the instrument ?

The first is a question of law, the others questions of facts.

1. A will is defined to be the legal declaration of a man’s intentions, which he wills to be performed after his death: 2 Black. Com. 500; Bouv. Law Dic.; 1 Jarman on Wills 11. An instrument in any form, whether a deed poll or indenture, if the obvious purpose is not to take place till after the death of the person making it, shall operate as a will: Habergham v. Vincent, 2 Ves. Jr. 204. It may be by an endorsement on a note: Hunt v. Hunt, 4 N. H. 434; or by letter: Morell v. Dickey, 1 Johns. Ch. 153. Whatever be the form of the instrument, if it vests no present interest, but only directs what is to be done after the death of the maker, it is testamentary: Turner et al. v. Scott, 1 P. F. Smith 126. The essence of the definition is, that it is a disposition to take effect after death: Redfield on Wills 5; Turner v. Scott, supra. Nor does it matter that the person intended to make a note instead of a will. If he used language which the law holds to be testamentary, his intention is to be gathered from the legal import of the words he employed: Id. Ño form of words is necessary to make a valid will. The form of the instrument is immaterial, if its substance is testamentary: Patterson v. English, 21 P. F. Smith 458; see also Rose v. Quick, 6 Casey 225; Frederick’s Appeal, 2 P. F. Smith 338.

This instrument is in writing. It is signed at the end thereof. It contains no admission of indebtedness. It furnishes no evidence of a debt. It contains no promise to pay. It vested no present interest. It was not to take effect until after the death of McCully. In the meantime he could revoke it at his pleasure. It therefore possessed all the essential characteristics of a will, and was undoubtedly testamentary in its character.

2. The 6th section of the Act of 8th April 1833, requires that a will “ in all cases shall be proved by the oaths or affirmations of two or more competent witnesses.” The act does not require them to be subscribing witnesses: Jones v. Murphy, 8 W. & S. 295; Carson’s Appeal, 9 P. F. Smith 498. Although the body of the will be not in the handwriting of the testator: Weigel v. Weigel, 5 Watts 486; Hinder v. Farnum, 10 Barr 98: Derr v. Greenwalt, 26 P. F. Smith 254. It may be proved then by competent witnesses, two or more in number. In this case, some fifteen witnesses testified to the authenticity of McCully’s signature. Among the number was Robert D. Clarke,the defendant in error. It is claimed that he was incompetent. If so, it must be on the ground of either interest or policy. The first section of the Act of 15th April 1869, declares “ no interest or policy of law shall exclude a party or person from being a witness in any civil proceeding.” The proviso to the section, after wholly excluding from the operation of the act several classes of cases, declares, inter alia, the act shall apply in “issues and inquiries devisavit vel non.” This was an issue devisavit vel non. It was the very question in controversy. It is then just the case in which the Act of Assembly says Clarke is a competent witness, although a party and interested. To deny this, is to disregard the specific terms of the act, and to refuse to give effect to the language cited. It was, therefore, held in Bowen v. Goranflo, 28 P. F. Smith 357, that one who was a party to the issue and both executor and devisee under the will in controversy, was a competent witness.

A careful review of the act confirms us in the correctness of the conclusion at which we then arrived. We do not see how effect can otherwise be given to the clause in question. It is claimed, however, that this construction of the statute will open the door to fraud and perjury. It may be so. It is possible that permitting .parties to testify in any case has caused much perjury. The good and the bad in this world are very much blended. Many an act of the legislature may not produce unalloyed good, yet we must give effect to its provisions. If the evil preponderates in obeying its mandates, the corrective power is lodged in the legislature to modify or repeal what they have enacted. We therefore see no error in permitting Clarke to testify. The evidence in favor of the signature being McCuliy’s, was most ample to submit to the jury. On that testimony they had a right to find, as they did; find, the signature to be genuine.

3. The learned judge said to the jury there was no evidence in the case of want of testamentary capacity in James McCully. A careful examination of the testimony leads us to the same conclusion. He appears to have been a man of plain tastes and of economical habits. He was intelligent, careful and sagacious. Industrious and self-controlling, he had the ability to retain, as well as to make property. .No foolish bargains characterized his conduct. He had a vigorous and well-balanced mind. His testamentary capacity was very clear.

The question whether any fraud or imposition was practised on McCully, or that he signed the paper in ignorance of its contents, or that some one wrote the body of the instrument over his signature and without his knowledge and consent, were all fairly submitted to the jury. The burden of proving these allegations rested on the party alleging them. If he signed the instrument, the presumption is that he did so voluntarily with a full knowledge of its contents. It is claimed, however, that when the principal beneficiary under a will is a stranger, having no claims from relationship, direct proof is not required of undue influence in procuring the making of the will. In support of this view, Boyd v. Boyd, 16 P. F. Smith 283, is cited. That case, however, is predicated of general evidence of power exercised over a testator of comparatively weak mind. If the mental capacity of McCully had been impaired ; if he had become weak from age or bodily infirmity, although not to 'such an extent as to destroy his testamentary capacity, it might have shifted the burden of proof, and required the defendant in error to negative, by evidence, a 'presumption of undue influence. It is shown, however, that McCully’s mental capacity was not impaired. He had not become weak through age, bodily infirmity or otherwise. His mind was clear, strong and discriminating. His judgment was good and self-reliant.

It is further urged that Clarke occupied a semi-confidential relation to the testator, growing out of the fact that the body of the will is in the handwriting of Clarke; that this is a suspicious circumstance requiring the fullest explanation. Granted. Yet if Clarke is believed, a full explanation was given. He gave a minute statement of all the circumstances under which the will was prepared.

The court said, substantially, to the jury, that while the facts proved did not create any legal presumption against the genuineness of the instrument, yet they were calculated to excite suspicion, and made it their duty to be vigilant and careful in examining the evidence in support of the genuineness of the instrument, and not to recognise it as McCully’s will, unless it had been fairly and satisfactorily established by the evidence. The jury were thus cautioned and . warned. Cautioned to examine carefully all the evidence casting any suspicion on the will, and warned against disregarding those facts on insufficient evidence. As bearing on the .question of the absence of imposition on the testator, it was relevant to show that he possessed a large estate, and died worth from one and a quarter to one and a half millions of dollars ; that he had neither wife nor child, and that his relations with Clarke were of an intimate, business and social character. In the absence of persons having strong natural claims on McCully’s bounty, he might more reasonably have donated a small portion of- his large estate ■“ to commemorate the long friendship existing between them.”

When a witness is called to prove a signature from his knowledge of the handwriting of the alleged signer, and not from having seen the particular signature written, we think the better rule is to permit the witness to be cross-examined as to his means of knowledge before he testifies as to the genuineness of the signature in question. The court departed from this rule in the case covered by the first assignment, but the plaintiffs in error sustained no injury thereby. The subsequent cross-examination showed the witness to be fully qualified by his previous knowledge to state his belief in the authenticity of the signature.

We think the learned judge ruled all the legal questions substantially correctly, and we discover no good reason for disturbing the judgment, therefore Judgment affirmed.

Askew, C. J.

— I doubt as to the question of interpretation of the Act of 1869, as decided in the case of Goranflo.

Mr. Justice Paxson dissented and filed a dissenting opinion, in which Mr. Justice Sharswood concurred.

       This case was re-affirmed by a divided court after re-argument at Pitts-burg at October Term 1876; Mr. Justice Williams being sick and absent.