text:
    Long, Adm’r, &c., of Cottrell, versus Spencer & Co.
    1. A note was drawn by a firm to their own order, endorsed by them to one of the firm and by him endorsed to Cottrell. Before maturity Cottrell died, and the note was found amongst his papers unstamped. . Held, that the want of a stamp was not evidence that Cottrell had received the note without consideration.
    2. The Internal Revenue Act merely made the want of a stamp a disqualification of the instrument as evidence.
    3. After the death of Cottrell his administrator procured the collector to stamp the note. Held, that the note was to be treated as if stamped when made.
    4. Testimony'by two of the defendants that the note was unstamped when passed to Cottrell, being as to a matter before his death, was inadmissible, under the proviso of the Act of April 15th 1869.
    5. Declarations by the administrator of Cottrell that there was nothing in his books and papers to show that any consideration had been given for the note, were irrelevant.
    6. The defendants, under a rule of court, struck ex parte twelve names from the jury list; at the trial it was proper to select the jury from those remaining.
    7. Tripp v. Bishop, 6 P. E. Smith 424 j Turnpike Co. v. McNamara, 22 Id. 278, followed.
    March 29th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Passon and Woodward, JJ.
    Error to the District Court of Philadelphia: Qf July Term 1873, No. 91.
    This was an action of assumpsit, brought May 81st 1871. by Elam B. Long, administrator d. b.n. of John E. Cottrell, deceased, against W; G. Spencer, G. B. Newton and J. Mitton, trading as W. C. Spencer & Co. The action was on a note drawn by W. C. Spencer & Co., defendants, dated January 4th 1871, to their own order, payable in four months, for $2500; it was endorsed by the drawers — by G. B. Newton and “ J. E. Cottrell, per W. K. Hemphill, administrator.”
    The case came on to be tried on the 6th of March 1873, before Lynd, J. When the case was called, it appeared that the defendant’s counsel, under a rule of the court, had struck the list of jurors ex parte, striking not more than twelve names from the panel; the plaintiff objected to having the names so struck excluded, and asked that the jury might be selected from the whole panel; the court overruled the objection and directed that the jury be selected from the panel in attendance, excluding those that had been struck, and sealed a bill of exceptions for the plaintiff.
    The plaintiff called William Ayres, who testified that the second endorsement was in the handwriting of G. B. Newton.
    On cross-examination he testified, that he found the note on the day of Cottrell’s death among the papers of the firm of Cottrell & Ayres, and of J. E. Cottrell; he kept his papers with the firm papers.
    The defendants admitted that the last endorsement was by W. K. Hemphill, administrator.
    Plaintiff gave evidence that administration of J. E. Cottrell’s estate had been granted to Hemphill, February 7th 1871; that the letters of administration had been revoked April 14th 1871, and on the 29th of May 1871 administration d. b. n. had been granted to the plaintiff. He then gave in evidence the note, viz.:
    “ 2500. Philadelphia, January 4th 1871.
    Four months after date we promise to pay to the order of ourselves, twenty-five hundred dollars, papable at the National Bank of the Republic, without defalcation. Yalue received.
    W. G. SPENCER & Co.” [ stamp. J Endorsed: “W. G. Spencer & Co., G. Bolton Newton, John E. Cottrell, per W. it. Hemphill, administrator.”
    There was also the following endorsement:—
    “Internal revenue stamps to the value of $1.25 affixed to this instrument and cancelled by me, at the request of Elam B. Long, administrator, this third day of February 1873. Penalty remitted upon proof that the proper stamping of the same was inadvertently omitted.
    W. B. Kenney, Collector First District.”
    The plaintiff then closed.

      The defendants called W. G. Spencer and offered to prove that whilst Hemphill was administrator he admitted that the note was not stamped when it came into his possession ; that he had examined the books and papers of Cottrell and could find no trace of any consideration having been given for the note. The offer was objected to by the plaintiff, admitted by the court and a bill of exceptions sealed.
    Witness testified that in February 1871, Hemphill, after his appointment as administrator, stated that the note with other papers of Cottrell came into his possession as administrator; that it then had no revenue stamp on it; there was no memorandum upon it to show that it had ever been used for any purpose, and so far as he had seen or knew there was nothing in Cottrell’s papers to show that any consideration had been given for it; that he had deposited the note with the Union Banking Company and directed a revenue stamp to be placed on it.
    W. Wingall, a clerk of the Union Banking Company, was called by defendants, who offered to prove by him that when the note was brought to the bank it was without stamps — as evidence that there was no consideration from Cottrell; that the stamp was can-celled by witness. The plaintiff objected to the offer, it was admitted and a bill of exceptions sealed. The witness testified that he believed the cancellation was his ; either the note was unstamped when brought to witness or it was stamped and he merely cancelled it. The defendants gave him no authority to cancel.
    W. G. Spencer, again called, under objection and exception, testified that the cancellation was not his nor that of any of his partners ; it was not done by his authority.
    Under objection and exception, G. B. Newton testified that the cancellation of the stamp was not in his writing nor done by his authority.
    In rebuttal, the plaintiff gave evidence by Ayres, that Cottrell died February 3d 1871; that between the date of the note and Cottrell’s death several sums of money had been paid by Cottrell to Newton and during the same time Newton was almost daily at Cottrell & Ayres’s office, and his visits were generally for money ; Cottrell had paid money on account of Spencer & Co.’s note; Cottrell & Ayres were not indebted to Newton. There was other evidence, for the purpose of showing consideration for the note.
    The court, amongst other things, said to the jury:—
    “ It was imprudent for defendants to make a promissory note and let it pass out of their possession without value. In law, whenever passed, the holder is entitled to the face of it, and when presented to the court and jury his primá facie case is made out. If the note is passed for any specific purpose the law presumes everything against the maker; that is the unfortunate position of the defendants in this case. They do not deny the making or giving of it out; but say, in point of fact, that no consideration was paid by Mr. Cottrell; they make this out in two ways : they say the note was not when found in such a condition that a prudent business man would take it, and it was an incomplete note. The law certainly at that time required a note to be stamped, and it is plain to my mind that it was not at the time stamped. Defendants want you to infer from the absence of stamps that the whole transaction was incomplete. You must take this, and upon the consideration of your minds give value to it.”
    The verdict was for the defendants.
    The plaintiff removed the record to the Supreme Court by writ of error, and assigned for error :—
    I. Excluding from the jury drawn the names which had been struck, and directing the jury to be drawn from those remaining. ■
    3. Allowing the admission of Hemphill, the administrator, that the note was not stamped when it came into his possession, as evidence of want of consideration.
    4. Allowing evidence by the bank clerk, that he cancelled the stamps on the note ; and that the note was without stamps when brought to the bank, as evidence of want of consideration.
    5. 6. Admitting evidence that the cancellation was not made by any member of the defendants or by authority from either of them, as evidence of want of consideration.
    7. The part of the charge given above.

      G-. 8. Graham (with whom was J. Roberts), for plaintiff in error.
    —The acts of an administrator may be given in evidence against an administrator d. b. n., but his declarations may not: Rush v. Peacock, 2 Moody & Rob. 162; 2 Steph. Nisi Prius 1628. The objection to want of a stamp must be taken before the instrument is read: Jones’s Appeal, 12 P. F. Smith 329 ; Robinson v. Vernon, 7 C. B. N. S. 231. An instrument stamped after proceedings have'begun is good ab initio: Brown v. Savage, 6 Jurist N. S. 1020 ; Tripp v. Bishop, 6 P. F. Smith 424.

      J. 0. Longstreth, for defendants in error.
    Hemphill’s admissions were properly received: Lobb v. Lobb, 2 Casey 327. When a defect in an instrument requires extrinsic evidence to show it, the instrument may be read and the objection proved as part of defendant’s case : Byles on Bills 91. Without a stamp the instrument was incomplete : Latham v. Smith, 45 Ill. 25 ; Wayman v. Torreyson, 4 Nevada 124.
   Mr. Justice Gordon

delivered the opinion of the court, May 10th 1875.

The note upon which this suit is brought bears date January 4th 1871, and was drawn by W. G. Spencer & Co. to their own order, payable four months after date, and by them endorsed to G-. B. Newton, one of the members of said firm, and by him endorsed to John F. Cottrell. Cottrell died on the 3d day of February 1871, and this note was found among his papers.

■ The defence exhibited nothing which, under ordinary circumstances, would put the holder of the note to proof of consideration. There was some evidence, however, that when the note came into Cottrell’s possession, it was unstamped, though a stamp was duly affixed thereto by the collector of the proper district, at the instance of the administrator, before suit brought. This fact was submitted to the jury, as evidence of the imperfection of the note as negotiable paper and to rebut the primá facie presumption that it had passed to the endorsee for a valuable consideration. Upon this evidence alone a verdict was rendered for the defendants. Now, how the want of a stamp could avail of itself to prove want of consideration, we cannot conceive. The provisions of the Act of Congress import no such effect as this. As is said by Mr. Justice Agnew, in the'case of the Turnpike Co. v. McNamara, 22 P. F. Smith 281, the Act of Congress did but “ stamp the instrument of evidence with a disqualification which prevented its use as evidence until the delinquent had paid his tax.” To the same effect are the cases of Tripp v. Bishop, 6 P. F. Smith 424, and Jones’s Appeal, 12 Id. 329. Now, as upon the trial, of this case, the note appeared to have been duly stamped by the officer qualified so to do, the bar upon it as evidence was removed, and it occupied the. same position, so far as the Act of Congress was concerned, ak though it had been stamped when made. Why, then, shall we go beyond that act and add a penalty not found therein ? But the ruling of the court below makes the want of a stamp, at the time of endorsement to the holder, not merely a curable irregularity, but also evidence to rebut the presumption of consideration. What is this but an additional penalty ? And of what avail is the curative provision of the statute, if the paper is so marred by the original default that it no longer of itself imports consideration ? We cannot subscribe to such an interpretation of the statute.

Had there been evidence of fraud or unfair dealing in the transfer of the paper, or of a want of consideration moving from Cottrell, this irregularity might have been adduced, as a link in the chain of testimony, to prove malo, fides, but standing alone it amounted to nothing.

Under no circumstances was the testimony of Spencer and Newton, two of the defendants, admissible. This testimony went to prove that the note was unstamped, or the stamp uncancelled when passed to Cottrell; as, however, this evidence rvas of matter occurring before his death and which, if alive, he might have rebutted by his own testimony, it comes within the proviso of the Act of 1869, and should have been excluded. So that part of the declaration of Hemphill, the former administrator, which contains the „ allegation, “ that so far as he had seen or knew there was nothing in Cottrell’s books or papers to show that any consideration had been given for the note,” should also have been excluded as irrelevant.

We find nothing improper in the drawing of the jury from the struck list. The method pursued is one that, we believe, has never heretofore been doubted or called in question, and if it has arisen from an erroneous interpretation of the statute, as is contended, it is an error too long established for us now to correct. Qommunis error facit jus.

The judgment is reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Per. Curiam.

license: Public Domain

text:
    Commonwealth ex rel. Brechemin versus Union Burial-ground Society.
    1. By their charter, a burial society consisted of such persons as might “ be admitted members and comply with the articles,” &c. Each member should be entitled to one Jot, to hold for a burial-place, “ to his heirs or assigns for ever.” Held, that ownership of a lot was not equivalent to membership in the society.
    2. Descent, devise or assignment of a lot did not necessarily carry with it the right to membership.
    3. By resolution of the society, “ any member, duly authorised by a family or owner of a lot, shall be entitled to vote,” &c. This did not extend the right of membership.
    March 30th 1875.
    Before Asnew, 0. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Philadelphia: Of July term 1873, No. 132.
    This was a proceeding, in the name of the Commonwealth, at the relation of Charles Brechemin, for a mandamus against The Union Burial-ground Society of Philadelphia.
    The petition was filed December 2d 1872 by the relator, as attorney in fact for Lewis Brechemin and Rosaline, wife of William L. Fairchild. A supplemental petition was filed December •6th 1872.
    The petitions set out the incorporation of the defendants in the year 1827 ; that the corporation had been owner of a large tract of land in Philadelphia, purchased to be disposed of for burial lots.
    Article 2d of the charter provided that the society should consist of such persons as might be admitted members and complied ■with the articles and rules.
    By article 11th each member should be entitled to one lot, and should hold it as a burial-place to him and “ his heirs and assigns for ever.” On the sale of each lot and payment of the purchase-money, a deed was to be delivered to the purchaser.
    On the 31st of August 1828 a deed for a lot was delivered to William Martin, “ his heirs and assigns for ever.” On the 17th of September 1871, Martin conveyed the lot to Charles Hepburn, Jr., who, by assignment of September 22d 1831 on the original deed, conveyed the lot to Louis Brechemin; he died March 12th 1866, seised of said burial-lot, which in his lifetime he had used for the interment of the deceased members of his family, and he was buried in said lot; by his will he devised all the residue of his estate unto his three children, Lewis, Charles and Rosaline, above named, to be divided by his executors or by converting the same into money, either by public or private sale, and appointed his sons Lewis and Charles and son-in-law, W. L. Fairchild, his executors; that the defendants at several meetings allowed the legal representatives of deceased members of burial-lots to vote, but for several years last past that right has been refused. By article 5th of the constitution of the defendants, one annual stated meeting was to be held on the first Monday of December, and special meetings by resolution of the society, or called at the request of five members. A stated meeting in December had been held every year, for the election of officers ; at an adjourned stated meeting held February 7th 1859 a resolution was adopted: “That any members duly authorized by a family or owner of a lot and bringing a deed shall be entitled to a vote, and to participate in the meetings of this society.” At the annual meeting of the defendants, on the first Monday in December 1869, the relator, duly authorized by Lewis Brechemin and Rosaline Fairchild and her husband William L. Fairchild, to attend that meeting and vote in-their behalf at any election of the defendants, was present; the relator was at the meeting held on the first Monday in December 1871, and attempted to vote for the election of officers; the president of the defendants decided that the relator was not entitled to vote, and rpfused to receive his vote, and that the defendants concurred in the opinion that the relator had no right to vote; at tbe same meeting the relator protested in writing against such refusal.
    The relator averred that by the constitution and by-laws of the defendants, he was entitled to vote at all elections of the defendants, and that his vote had been uiilawfully refused.
    The prayer was for a mandamus, commanding the defendants to receive the vote of the relator, &c. An alternative mandamus was issued.
    On the 17th of December 1872 the defendants answered: That by their constitution they had power to make by-laws not inconsistent with their constitution, which by-laws might be passed, altered or amended, at any stated or special meeting, two-thirds of the members present concurring, having been proposed at least one meeting previously; the alteration or amendment to be proposed at one meeting, and acted on at a succeeding meeting, with the concurrence of two-thirds of the members present, provided that one hundred members should be present at the meeting; that no person could he a member of the company until regularly admitted, and none but members should have any vote in the affairs of the company ; the defendants admitted that Lewis Brechemin died seised of the lot, and that it passed by his residuary devise to his executors, to be disposed for the benefit of his children; they averred that the lot had not been conveyed by the executors, but it remained in the name of the decedent; that neither the relator nor Lewis Brechemin and Rosaline Eairchild were members of the society; they denied that the relator was entitled to vote, and averred that their refusal of the relator was in conformity with their articles and by-laws; the meaning of the resolution of February 7th 1859, was to allow members to represent lot-holders who were not members, but did not extend the rights of membership beyond the fundamental law of the society, which could not be done by resolution, hut required a change in the articles of the society, as provided by their articles ; that when the society decided that the relator had no right to vote, they virtually repealed the resolution.
    The deed for a lot was in the following form: —
    “Be it known that A. B., of the-of Philadelphia, having paid to the treasurer of the Union Burial-ground Society the sum of $10, in consideration thereof, there is hereby granted and conveyed to the said A. B. a certain lot. .* * * To hold to the said A. B.,-heirs and assigns for ever; on condition, however, that the said lot shall he used by the said heirs and assigns as a place of burial or interment, according to the constitution and by-laws of the said society, and for no other use or purpose whatsoever ; and the said A. B., having signed the constitution thereof, is entitled to all immunities, privileges and benefits, in mutual right and in common with the other members thereof, so long as-shall continue in possession of the said lot or piece of ground; subject, nevertheless, to the said constitution and by-laws.”
    The Commonwealth demurred to the answer.
    The Court of Common Pleas gave judgment for the defendants on the demurrer, Ludlow, J., delivering the following opinion :—
    “ By the petition filed in this case, we are asked to command ‘ The Union Burial-ground Society of the City and County of Philadelphia,’ to receive the vote of one Charles Brechemin.
    “ The right of the relator to vote depends upon the organic law of the society. To that, and to that alone, can we look for a solution of the question now before the court.
    “ It will hardly be contended that a person who is not a member of the society could vote, unless some such right existed in the charter, or in a by-law passed under the authority of the charter; and when, therefore, we find an absence of any provision relating to persons who are not members, we are necessarily confined to the right of those, and those only, who are members.
    “ In the second article of the charter we find a provision which clearly declares who shall be the members of this society: ‘ it shall consist of such persons, citizens of this Commonwealth, who may be admitted members, and comply with the articles and rules hereinafter mentioned.’
    “ The relator and those he now represents never have been admitted into the membership.
    “ It is, however, argued that the heirs and legal representatives of one Lewis Brechemin have a right to vote, because a lot had been sold to one William Martin, ‘ his heirs and assigns for ever,’ in 1828, and the relators claim by assignment from and under the original grantee.
    “ Under the constitution, art. 11, we presume William Martin to have been a member, but we are at a loss to understand how a conveyance to Martin, ‘ his heirs and assigns,’ could confer upon his legal representatives in the ownership of the lot merely, the personal rights which are conferred upon persons, citizens of the Commonwealth, and who, as such, were admitted, members, the rights of membership.
    “ The resolution of 7th of February 1859 was evidently intended to permit a representation of the owners of lots not members of the society, by a legal member, hence ‘ any members duly authorized by a family or owner of a lot, and bringing the deed, shall be entitled to vote and participate in the meetings of the society.’
    “ If any other construction can be placed upon this resolution, then it is in conflict with the constitution, for no person can be a member unless he shall be admitted as such.
    “ An attempt was made to remedy a defect in the constitution by the passage of additional by-laws, but that this could not be accomplished will appear by reference to art. 25, chap. 1, of the constitution, which declares that alterations and amendments may be made, ‘ Provided, there he not less than one hundred at the meeting.’
    “ It is not pretended that members to the number of one hundred ever attended the meetings, and hence any by-laws or resolutions which changed radically the qualifications of members or the test of membership, would be null and void.

      “ On the whole case, we are of the opinion that the relator has no rights as a member, technically so called, under the constitution, and we must, upon the pleadings, enter judgment upon the demurrer for the defendants.”
    The relator sued out a writ of error, and assigned for error the entering judgment for defendants on the demurrer.

      J. Hanna, for plaintiff in error.

      H. K. Nieholls, for defendants in error.
   Judgment was entered in the Supreme Court, .April 2d 1875,

Per. Curiam.

Under the charter of the defendants, ownership of a lot and membership are not equivalent or identical with each other. Membership requires admission, and this the certificate of the purchase or deed seems to apply only to the first purchaser who signs the constitution. But descent, or devise, or assignment of the property does not necessarily carry with it the right to membership ; nor does the resolution of 7th February 1859 extend the right of membership. It merely confers on a member a power to vote upon a deed when duly authorized by a' family or owner of a lot. The whole subject is so satisfactorily handled by the judge who gave the opinion in the Common Pleas, it is unnecessary to say more. Judgment affirmed.


author: Per Curiam.

text:
    Caldwell versus Coates et al., Garnishees.
    1. Under the Act of June 13th 1836 (Execution Attachment), where the plea of the garnishees is “Nulla bona” the burden is on the plaintiff to show what goods, &c., were in the hands of the garnishees.
    2. A manufacturing firm being much indebted, assigned their personal property about their factory to three of their creditors, put them into possession of the factory to conduct their business, and from the proceeds pay the debts of these creditors and other liabilities and pay the balance to the assignors. This imposed on the assignees only a liability to account; in an attachment against the assignors — the assignees being garnishees — the burden was on the plaintiff to show that the garnishees had assets in then-hands liable to the attachment.
    3. The plaintiff was bound to make out a case of indebtedness sufficient to recover in assumpsit.
    January 8th 1875.
    Before A&new, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of January Term 1873, No. 153.
    This was an attachment-execution, issued November 26th 1864, by John D. Caldwell against Paul Klotz and James Armstrong, trading under the firm name of Paul Klotz, in which Benjamin Coates and George M. Coates, trading as Coates Brothers, were garnishees.

      The garnishees pleaded “Nulla Iona.”

    The plaintiff, on the 26th of November 1864, recovered a judgment for $293.32 on which this attachment-execution was issued.
    The circumstances under which the plaintiff claimed that the liability of the garnishees.arose, were the following:—
    In May 1864, the indebtedness of the firm of Paul Klotz, manufacturers at Grlen Bank Mills, to all their creditors was something over $100,000. Of this sum $22,229 were due to Coates Brothers; $15,893.45 to Bullock’s Sons, and $13,877.07 to Seth B. Stitt. On the 30th of May 1864, the firm of Paul Klotz entered into an agreement with their above-named creditors, reciting their indebtedness to them and that the firm was unable then to pay them, but-desired to secure them; and by the agreement assigned, &c., to those creditors all their stock of wool and materials used in the manufactory, their tools and implements, machinery, &c., with all their personal property, as collateral security for the debts due to the assignees, the assignees to have an inventory of this property made, and have the stock worked up and sold, the proceeds to be appropriated first to the payment of expenses, thén to pay the debts due the assignees, and the balance to be paid to the firm of Paul Klotz ; the assignees to have the use of Grlen Bank Mills for the purpose of manufacturing for four months, they to pay out of the sales the interest on mortgages on the premises and the taxes. On the 4th of June 1864, Klotz and Armstrong executed to the same three creditors two mortgages on their real estate, machinery, &c., each for $100,000 ; one to secure the before-mentioned indebtedness, and the other to secure future advances, &c. On the same day another agreement was entered into between the same parties; it recited the agreement of May 30th 1864, to which it was to be a supplement, the mortgage to secure the indebtedness ; the understanding was that the mortgagees should take possession of the real estate under the mortgage, and continue the business until the indebtedness should be paid; it recited also the second mortgage for advances, this mortgage to be recorded immediately after the first mortgage, so as to constitute a second lien; it was then agreed that the agreement of May 30th should remain in full force until its object was accomplished; that the assignees should have the additional right to continue the business, to make advances on account of the business, to purchase and sell machinery, wool and other materials, to employ operatives, sell goods, and out of the proceeds reimburse themselves for their expenses, to replace stock and machinery, and apply the proceeds to the extinguishment of the debts due the same creditors, and to reimburse them any sums they might expend in purchasing the debts of the firm, until the money advanced and expended and the amounts owing should be discharged, and the balance, if any, then to be paid over to the firm ; also that Klotz and Armstrong had transferred in mortgage all their personal property, &c., belonging to and in and about Glen Bank Mills, and any property which might thereafter be purchased by the mortgagees in the course of the business, to hold as collateral security for existing indebtedness to 'the mortgagees, then for the sums they might pay out ‘in the purchase of debts of the firm or advances or liabilities incurred in carrying on the business; also, that nothing in the agreement was to compel the mortgagees to continue the business longer than they deemed advisable, nor to deprive them of their right to sell under the mortgages all the real and personal property whenever they should deem it expedient. There were also other stipulations not necessary to be specified.
    On the 29th of September 1864, another agreement was made between Bullock’s Sons and Seth B. Stitt of the first part, Coates Brothers of the second part and the firm of Paul Klotz of the third part; it recited the agreement of May 30th, the first mortgage, and that Bullock’s Sons, Stitt and Coates Brothers had taken possession of the real estate, in pursuance of the agreement of June 4th, and carried on the business; it recited, also, the second mortgage and that Bullocks and Stitt had sold their claims against the firm of Paul Klotz to Coates Brothers; it was then agreed that in consideration of sums equal to their claims, they respectively assigned to Coates Brothers their right to the personal property of the firm of Paul Klotz in and about Glen Bank Mills, with the powers, rights and privileges, by virtue of the agreement of June 4th, the firm of Paul Klotz agreeing to the transfer, &c., it being understood that Coates Brothers were to stand to the firm of Paul Klotz as Bullocks Sons and Stitt did, &c.
    The case was tried January 22d 1872 before Thayer, J.
    On the trial it appeared by the evidence for the plaintiff that Bullocks Sons, Stitt and Coates Brothers, took possession of the assigned property, and that the personal property was worth $30,000, that Coates Brothers and the other assignees held possession of the assigned property nearly a year, and that no part of the personal property was ever returned to the firm of Paul Klotz, but that the mill was surrendered to them; that no account was rendered to the firm of Paul Klotz ; that the three assignees were fully paid and the mortgages were “ satisfied ” of record.
    The garnishees offered no evidence.
    The court instructed the jury that the burden of proof was upon the plaintiff; that to entitle him to recover he must show that the assigned property had produced -more than sufficient to pay the claims of the garnishee; that if the plaintiff had not satisfied the jury by his evidence that a balance was due from the garnishee, the verdict should he for the garnishees. If Klotz and Armstrong were suing these garnishees in a suit at law to recover a balance alleged to be due them, they would be obliged to show it. The burden of proof would be upon them to show that the business resulted in a sum in excess of the indebtedness for which the business was assigned to the creditors.
    The verdict was for the garnishees.
    The plaintiff took a writ' of error; he assigned the charge of the court for error.

      W. R. Wister and O. S. Pancoast (with whom was Gr. W. Dedrick), for plaintiff in error.
    Under the Act of June 16th 1836, sect. 32 et seq., Pamph. L. 767, 1 Br. Purd. 639, pi. 29, et seq., an attachment will lie against property in the hands of an assignee under a void assignment: Stewart v. McMinn, 5 W. & S. 103; Wharton v. Grant, 5 Barr 39: Mitchell v. Stiles, 1 Harris 307; against losses on insurance : Insurance Co. v. Field, 9 Wright 129 ; income payable by a trustee: Park v. Matthews, 12 Casey 28; Girard Trust Co. v. Chambers, 10 Wright 485; money in the hands of an attorney: Riley v. Hirst, 2 Barr 346. In an action of account, a formal judgment quod computet is not necessary: McLean v. Wade, 3 P. F. Smith 151; McFadden v. Erwin, 2 Wharton 40. The. burden was on the garnishees to account: Shriver v. Nimick, 5 Wright 91; Bredin v. Kingland, 4 Watts 420. The plaintiff in an attachment is in the shoes of tbe debtor: Fessler v. Ellis, 4 Wright 248 ; Patten v. Wilson, 10 Casey 299; Strong v. Bass, 11 Id. 333.

      S. Dickson (with whom was J. O. Bullitt and J1 B. Townsend), for defendants in error.
    The burden was on the plaintiff to make out this case: Reeside v. Reeside, 13 Wright 322. “Debt,” in the Act of 1836, does not extend to an unsettled balance: Knerr v. Hoffman, 15 P. F. Smith 126. The sum being unliquidated, an attachment will not lie: Carland v. Cunningham, 1 Wright 228; Girard Ins. Co. v. Field, 9 Id. 129.
   Judgment was entered in the Supreme Court, January 18th 1875,

Per Curiam.

Clearly the burden of proof under the plea of nulla bona is on the plaintiff to show what goods, credits or moneys are in the hands of the garnishee to answer his attachment. The 58th section of the Act of 13th June 1836 makes it the duty of the jury to find what goods or effects, if any, were in the hands of the garnishee, and also the value thereof. A liability to render an account is a very different thing from a liability for the payment of money. On the settlement of the account it may turn out that nothing is due or coming to the plaintiff.

The case before us exhibited only a liability to render an account. There was no evidence of an actual settlement, or a statement of an amount, or of a balance due or owing by- the garnishees. It is true that a large amount of property was shown to have gone into their hands, much greater than sufficient to pay the plaintiff’s claim. But the evidence also shows that this property went rightfully into their hands upon certain terms of agreement which gave the garnishees a right to retain the property and its avails until their claims and those of others were paid. In the performance of the duties enjoined by these agreements large expenses and outlays were to be necessarily incurred, and therefore the value of the property and the amounts of the claims it was taken to pay could not alone solve the question of balance. A settlement of an account was essential to determine the question whether any balance remained in the hands of the garnishees. Clearly it was the duty of the plaintiff to make out a case of indebtedness at least sufficient to enable him to recover in an action of assumpsit. Judgment affirmed.


author: Mr. Justice G-okdW

text:
    Franconia Township Road.
    1. A rule of court was, that when a procedure for a road had finally failed, another application for such road should not be acted on for one year. A road had been reported and on technical grounds set aside. Held, that the view had not “ finally failed,” and the case was not within the rule.
    2. For the purpose of curing technical defects new viewers may be appointed on the old petition.
    3. Exceptions to a road were filed August 19th 1872, the hearings on the exceptions were continued from time to time without decision until May 2d 1874, when the road was confirmed. ' Held, that an application for a review was then too late.
    January 21st 1875.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson and Woodward, JJ.
    Certiorari to the Court of Quarter Sessions of Montgomery county : Of July Term 1874, No. 93.
    On the 15th of May 1871, a number of inhabitants of Franconia township petitioned the Court of Quarter Sessions for viewers for a public road from the county line road between Montgomery and Bucks counties, on land of Henry H. Roth, to the Harleysville and Souders turnpike road, on lands of M. S. Henzey and Jonas Mayer. Viewers were accordingly appointed.
    They reported that they had viewed and laid out a road, beginning at a point in the county line road, on land of Henry H. Roth, and by various courses and distances crossing the North Pennsylvania railroad to the Harleysville and Souders turnpike, on lands of Michael Henzey, &e. The report was filed August 24th 1871 and confirmed Nisi.
    On the 25th of November, the North Pennsylvania Railroad Company filed exceptions to the report of the viewers, viz :—
    1. That no notice had been given to that company of the time and place of the meeting of viewers, nor had the company any knowledge thereof, and they were not represented at the view.
    2. The petition set out no definite point for the beginning or ending of the road and was so uncertain that viewers could not be appointed upon the petition.
    3. The points of beginning and ending were indefinite and uncertain.
    The report was set aside January 8th 1872.
    On the 6th of March 1872 another petition of inhabitants of Franconia township for the same road was filed, and viewers were appointed. The viewers reported a road, beginning at Souders’ station and Harleysville turnpike, on land of Michael Henzey, &c., and crossing the North Pennsylvania Railroad, thence by various courses and distances to the county line road, on land of Henry H. Rhoads, being the same road laid out by the former jury.
    This report was filed May 22d 1872, and on August 19th exceptions were filed, viz.
    1. That the proceedings were in contravention of a rule of the Court of Quarter Sessions, that “ when a procedure for a road or bridge has finally failed, another application for such contemplated road or bridge shall not be acted on for one year from the session at which such road or bridge was finally rejected.”
    2. The road will cross the North Pennsylvania Railroad at grade and be extremely dangerous, and impose an undue burden on the railroad company to prevent accidents.
    3. The road is unnecessary, there being four other roads running parallel with it within a mile and a half.
    Testimony was heard upon the exceptions. There were a number of continuances of the case until April 8th 1874, when the exceptions were dismissed and the report confirmed: and “ petition to be filed as of to-day, on or before May 2d 1874, for a review, and rule granted to show cause why jurors should not be appointed. Returnable 3d Monday of May 1874.”
    On the 2d of May 1874, a petition for a review was filed; after setting out the report, &c., laying out the road, &c., it continued :—
    “Your petitioners further represent that the said report has been pending upon exceptions filed thereto until the 8th of April A. D. 1874,” and prayed for the appointment of reviewers.
    On the Í6th of June 1874, the petition for review was dismissed, Ross, P. J., delivering the following opinion:—
    “ This application for a review has some meritorious considerations to support it.
    “Before the original petition was filed, I, as an individual member of the court, had announced my intention to disapprove and refuse to lay out any public road crossing a railroad at grade, unless it appeared that a controlling and imperative necessity required such road for the accommodation of the public.
    “ After this petition was filed, and report made upon it, Mr. Fox, the counsel for the exceptants, came into court and inquired whether the court had made such a rule. He was informed by the court what had been said by the presiding judge, and was also told that when a full bench was present a consultation would be had, and if the associates agreed with the presiding judge, such would be the policy of the court in laying out public roads. A conference was had, and the court determined to lay out no public road which crossed a railroad at grade, unless a controlling and imperative public necessity required such road. The counsel for the exceptants then filed exceptions to the report, relying on the fact that this road crossed the track of the North Pennsylvania Railroad at a grade, and did not file a petition for a review.
    “ On the final hearing of the exceptions, the associate judges came to the conclusion that the facts in the-case did present the road as one demanded by a controlling and imperative public necessity, and dismissed the exceptions. In this conclusion I did not, and do not concur, and should have sustained the exceptions.
    “ My colleagues desire me to say that they adhere to the rule, where the public safety justifies it, and will enforce it in all proper cases, but that in this instance they are satisfied that public safety and convenience require a road at this point.
    u The exceptants alleging that they were misled by the announcement of the court, ask that they be permitted to file this petition for a review.
    “ If we could entertain it under the law and the rules of court, we would do so, but the hastiest examination shows that we cannot. The rule with its exception was announced, and the court have decided that this road was within the exception. If the ex-ceptants thought it was not, they took the risk of their own judgment and must abide the result.”
    The exceptants removed the record to the Supreme Court by certiorari, and assigned for error:—
    1. Not setting aside the report of the viewers under the rule of court.
    * * * * * * * * * • *
    3. Dismissing the petition for review.

      Gr. B. Fox, for certiorari.

      B. M. Boyer, contrd.
   Mr. Justice G-okdW

delivered the opinion of the court, February 1st 1875.

Two exceptions are taken to the action of the court in this case. The first is, that they violated one of their own rules in appointing viewers on the petition, upon which these proceedings are founded. That rule reads as follows, to wit: “ When a procedure for a road or bridge has finally failed, another application for such contemplated road or bridge shall not be acted upon for one year from the session at which such road or bridge was finally rejected.”

The record shows that there had been a previous petition for a road between the same points as those indicated in the second one, May 15th 1871, and a report of viewers thereon, which was set aside January 8th 1872. This statement, on first blush, would seem to indicate an infraction of the rule above set forth. But upon further examination it appears that the former view was set aside on purely technical grounds, and not upon a judgment on the merits of the proposed road. The Court of Quarter Sessions thought the case did not come within the spirit of the rule, or in other words, that the view had not “ finally failed.” In this we think they were right. That there should be some reasonable restriction upon re-applications for views, after the judgment of the court has passed, upon full hearing, on the necessity of the road asked for, no one can well doubt.

On the other hand there is no reason for such restriction where the view has been set aside for informality, for, in such case, the merits of the application are not reached. For the purpose of curing such technical defects, new viewers may be appointed upon the old petition : Charleston Road, 2 Grant 467. And we cannot see why the same end may not be reached as well upon a new petition.

• The second exception is to the action of the court in refusing the appellant a review. In this, also, we think they were right. The Act of Assembly requires the application for this purpose, to be made at or before the next term of the court after the report on the first view. But as the appellants’ application was not made until nearly two years after the report was filed, it was clearly too late. The design of the act in providing for these reviews, is that the court may be fully informed as to the necessity of the road before their final action upon the report, and hence it is that applications therefor are required to be made promptly.

The complaint made that the judges violated a rule adopted for their own government, to wit: “ that no road -crossing a railroad at grade should be confirmed unless a controlling necessity existed,” is something that we can take no cognisance of. It is indeed an excellent rule if properly administered, but as it rests wholly in the discretion of the court we can have nothing to do with it.

The proceedings of the Quarter Sessions are aflirmed.


text:
    Hummel & Co.’s Appeal.
    1. A supplement to the charter of a mutual insurance company authorized them to insure for cash premiums, which were to be paid into the “ common treasury afterwards the plaintiffs became members on the mutual plan ; Held, that they were liable for assessments for losses on insurances on the cash plan.
    2. A condition of insurance was, that when an assessment on the premium note remained unpaid for thirty days after demand, the policy should “ be null and void until the assessment be paid," and the directors should retain the note to collect the sums assessed. Held, that non-payment of an assessment for thirty days did not absolutely extinguish the policy, but its protection was suspended until the assessment was paid by the assured or collected on the premium note.
    3. A member is bound by an assessment made by the directors, unless he can show fraud or gross mistake.
    4. Estimates for assessments for losses may properly be founded on knowledge of the company’s risks where the losses have occurred, before the actual liabilities have been fully ascertained.
    January 28th 1875.
    Before Agnew, C. J., Sharswood, Williams, Gordon, Paxson and Woodward, JJ.
    Appeal from the Court of Common Pleas of Snyder county. In Equity. No. 280, of January Term 1874.
    The bill in this case was filed August 22d 1873, by L. R. Hummel and others, trading as L. R. Hummel & Co., against the Lycoming Eire Insurance Co.
    The object of the bill was to strike off a judgment against the plaintiffs, in which the defendants in the bill were plaintiffs; to set aside the execution issued on it; to reduce certain assessments made on the plaintiffs’ premium note as insurers in the company, and for a statement of the affairs of the company.
    The defendants were incorporated by virtue of an Act of Assembly of March 20th 1840. The act enacted that all persons who should insure ,with the company, should be members whilst they continued insured and no longer. Every person becoming a member should, before receiving his policy, deposit his promissory note for such sum as the directors should determine, a part of which note, not exceeding ten per cent., should be immediately paid, and the remainder be payable in part or the whole when the directors should deem it requisite for payment of losses by fire and expenses of the company, and at the expiration of the time of the insurance, the note, or so much as remained unpaid, should be given up to the maker; the company should have a lien in the nature of a judgment waiving inquisition on all the property insured to the amount of the deposit note, the prothonotary of the proper county to enter it on the judgment docket, to be in all respects as a judgment entered upon warrant of attorney and execution, might issue at any time for so much as might be due and demandable; when property insured should be alienated the policy to be void, tbe policy to be surrendered, tbe insured to receive his deposit note, and satisfaction to be entered on the judgment, but the alienee might have the policy assigned to him -with the consent of the directors within thirty days after the alienation. After ascertaining a loss by fire, the directors should determine the sums to be paid by each member as his proportion of the loss, which should be paid within thirty days after notice, &c. The act was to continue for twenty years, the legislature reserving the right to alter or modify its provisions. By a supplement passed July 26th 1842, the foregoing provisions as to judgment, &c., were reenacted, and it was further provided that, before any execution should issue against a member, the officers should make out a statement of the amount of premiums received, the manner in which the moneys had been expended, and file a copy of the statement in the office of the prothonotary of the county where the member to be charged resides.
    By another supplement, passed May 1st 1861, the company was authorized at their discretion to make insurances, for which cash premiums only should be received, and the sums thus received paid into the common treasury, and the company should be responsible for all losses to the property insured, but the insured should not be members of the company.
    On the 28th of April 1869, L. R. Hummel, C. Hower and E. W. Dundaugh, trading as L. R. Hummel & Co.,' made application to the defendants for insurance to the amount of $10,000, on a planing mill, &c., in Selinsgrove ; they gave a premium note for $8000, and paid $400 in cash on it. On the 3d of May 1869, the defendants issued the policy to plaintiffs in accordance with his application : the policy was subjéct to by-laws, conditions, &c., of the act of incorporation.
    The 10th condition was : “ Whenever an assessment shall have been made upon tbe premium notes, and the same is not paid within thirty days after having been demanded by the company, through iheir agents or receivers, the policy of insurance given upon such notes, shall be null and void, until the said assessment be paid, and the directors shall retain such premium-notes and collect thereon such sum or sums so assessed.”
    On the 1st of May 1869 and before the policy was issued, the defendants levied an assessment, No. 26, on their premium-note for $240, and on the 1st of May 1870 another assessment, No. 27, for $320 ; in the fall of 1870, Dundaugh sold his interest in the firm to J. H. Fisher, who was accepted as a member of the firm, which continued under the same name. On the 17th of February 1871, the original firm, with the consent of the company, transferred the policy.of insurance to the new firm (the plaintiffs), who gave their premium-note for $8000, instead of the one first given. About May 1st 1871, another assessment of $400, No. 28, was levied on the new note, these assessments were paid within thirty days respectively ; about October 10th 1871, another assessment, No. 29, for $1000 was levied ; another’, No. 30, for $400, about May 1st 1872, and another, No. 31, for $400; about May 1st 1873. The defendants insured property in the state of Illinois and other states than Pennsylvania at stock rates and on the mutual plan, and also on stock rates in Pennsylvania, without the knowledge and consent of the plaintiffs ; the plaintiffs refused to pay the last three assessments. On the 3d of April 1872, after the refusal of the plaintiffs to pay assessment No. 29, the defendants entered judgment in the Common Pleas of Snyder county on the premium-note for $6880, and filed a statement in accoi’dance with requisitions of the Act of Assembly.- The statement showed the operations of the company from June 10th 1870 to June 10th 1871, at which last date the amount of assets over liabilities appeared to be $266,667.82 ; and the operations of the company from June 10th to October 10th 1871, at which last date the excess of assets over liabilities appeared to be $84,168.88. They filed also an “ estimated statement;” in this, amongst the liabilities, was that of loss by the Chicago fire $450,000, and amongst the assets the above stated actual balance of $84,158.88, and the amount anticipated from assessment No. 29 ; showing the estimated amount of assets over liabilities to be $138,261.54.
    On the 17th of September 1871, about eight months before assessment No. 31 was made, Eisher sold his interest in the firm to Jeremiah Bogar and Isaac Albert.
    To September Term 1873 of the Court of Common Pleas of ■ Snyder county, the defendants issued execution on their judgment on the premium-note and instructed the sheriff to collect assessment No. 29 for $1000, and No. 30 for $400.
    The bill set out the foregoing facts ; it further set out that the defendants were endeavoring to collect assessments No. 29 and No. 30, for the purpose of paying losses incurred by fire in Illinois and other states than Pennsylvania, and also from losses in Pennsylvania on insurance made at stock-rates ; and the plaintiffs averred that, according to condition No. 10, assessment No. 30 could not be collected. They averred that the defendants refused to allow them credit for $400 paid at the time of the application and assessment No. 26 for $240. That assessment No. 29 was excessive, the defendant having at the time more assets than were necessary to meet the losses, &c., and assessments Nos. 29, 30 and 31 were made on estimated losses, contrary to the charter. The defendants amongst other things answered, admitting the insurance of property outside of Pennsylvania, both on the stocks and mutual plan, and that assessments Nos. 29 and 30 were levied for the payment of losses under such insurances, and that the proceedings were under Act of May 1st 1861, which was part of their charter; they denied that at the time of the assessments they were in possession of the funds to meet demands against them; the liabilities over the assets — including $450,000 for the losses by the Chicago fire — was $524,693.80 ; the assessments were on actual losses already accrued and monthly losses accruing.
    The plaintiffs replied, amongst other things, that the supplements of 1842 and 1861 had not been accepted by the members, and were, therefore, not binding.
    An examiner was appointed, who reported the testimony; the court, without referring the case to a master, decreed as follows :
    “And now, December 20th, 1873, it appears to the court that the respondents are not now claiming assessment No. 31, the court dismiss the bill of complainants and order them to pay the cost of this proceeding.”'
    The plaintiffs appealed to the Supreme Court, and in a number of specifications assigned the decree for error.
    The Supreme Court referred the case to W. J. Greenough as master.
    He reported:—
    1. That the defendants were bound by the supplements of 1842 and 1861, and could levy assessments to pay losses at stock-rates as well as those on the mutual plan.
    2, 3. That the policy became void under the tenth condition, by reason of defendants’ refusal to pay assessment No. 29, and they were therefore not liable to assessment Nos. 30 and 31, and that in consequence of the alienation by Fisher to Bogar and Albert, the plaintiffs were not liable for assessment No. 31.
    4. That the directors, under the facts in the case, were authorized by their charter to make assessment No. 29.
    5. He reported a somewhat minute calculation of the assets and liabilities, and found that the losses by the Chicago fire were not so great as the defendants had estimated them.
    6. That the defendants had the right to enter judgment on the premium-note of plaintiffs and issue execution for the sums “ due and demandable.”
    7. That the statement filed contained inaccuracies, and was, therefore, not such an one as the Act of Assembly required, and would not support the execution issued, but the defendants had the right to issue execution for the amount actually due, as ascertained by the calculation made by him.
    He therefore recommended a decree that the defendants be restrained from collecting assessments Nos. 30 and 31, and also assessment No. 29, except $515.66, which sum, with interest, they be allowed to collect by the execution, &c.
    The defendants excepted to those parts of the report in which the master decided against them. They stated with their exceptions that they had not issued an execution to collect assessment ■ No. 81, and did not intend to do so.

      0. Sower and G-. F. Miller, for appellants (plaintiffs in the bill).

      J. A. Sazen and B. W. Cuvimings (with whom was S. Alloman), for appellees.
   Judgment was entered in the Supreme Court, February 8th 1875,

Per Curiam.

The prayers of this bill are to set aside the fi. fa., and strike off the judgment at law of the insurance company against the plaintiffs, or to reduce the assessments Nos. 29 and 80, and prohibit the collection of No. 31. There is a prayer also for a statement of the affairs of the company.

The master has found against the plaintiffs on all questions affecting the validity of the judgment. He finds the right of the company to assess the premium-notes under mutual policies with the losses on policies issued for cash-notes; that the charter has been substantially followed in making the assessments; that the Act of 1861 is binding on the plaintiffs, who became members long after its passage and acceptance by the company. And he finds that the company had substantially complied with the requisites of the law in the entry of the judgment. These are in short the results of the master’s findings, and sustain the defendants in entering judgment and issuing execution. He erred, we think, in one finding, which would affect the sum to be collected, to wit: that the policy was null and void under the 10th sect, of the rules appended to the policy, in consequence of the non-payment of the assessment No. 29, for a period of thirty days. The effect of the 10th section is merely to suspend the benefit of the policy, after thirty days’ default in payment, until payment of the assessment is made either voluntarily or involuntarily, the company by the same section being authorized to retain the premium-note to enforce collection. The mistake of the master is in treating the words “ null and void” as creating an absolute extinguishment of the contract; whereas, the provision is only a contract mode of enforcing payment of the premium, by withholding the protection of the policy during the default, the contract itself remaining in life and its operation only being suspended by its own terms, until payment is made by the insured, or the assessment collected under the premium-note. The moment payment was made the contract which was still alive became again operative in its protection. There was no option to be exercised by the company in order to put an end to the contract, but the contract propria vigore, suspended the protection until the default was at an end. Clearly it is the right of the parties to make this condition in their contract and especially in such a case where by the policy the relation of membership is created.

We think the master erred also in deciding that the assessment was partially invalid because of excessiveness. By the terms of the charter and of the premium-note the assured, as a member of the corporation, submits himself to the acts of the directors, as the common representatives of all the members. He and they are all bound by the assessments made by them, unless he can show fraud or gross mistake. This is a rule he has no right to complain of. He became a member on the very condition of submitting to be thus assessed. for losses. The presumption is that the directors, representing all the members, made the assessment properly. The bill avers neither fraud nor gross mistake. Its only averment is that the assessments were illegal and contrary to the charter. The answer of the company avers the legality and propriety of the assessments, and. denies that they were incorrect or excessive. The master, in his finding on this point, does not find fraud or plain mistake, but by a difficult and uncertain' process of reasoning, founded on vague and unsatisfactory statistics of the company, and by inferences in themselves uncertain, reaches a conclusion that the assessments were excessive. But at the same time the fact clearly appears that by the great conflagration which reduced about one-fourth of the city of Chicago to ashes, the company suffered immense losses, and that necessarily the company had to make estimates founded on the knowledge of its risks in that city, in order to meet its liabilities; and that this must be done before the liabilities could be fully ascertained. In the presence of such a necessity and in the absence of all charge and evidence of fraud or collusion among the directors, or gross mistake in the performance of their duty, it would be improper to treat the rightful act, in making the assessment on all its members alike, as invalid and as justifying the restraint of their right to due execution for the collection of the money necessary to meet their losses. Had the immense loss by the Chicago fire not occurred, it is not probable we should have heard of this case. Upon the whole case, we discover no good ground to enjoin the execution or set aside the judgment. No claim for assessment No. 31 is made, and therefore it is out of the question.

The decree of the court below dismissing the bill is affirmed, with costs to be paid by the appellants, and the appeal dismissed.


author: Mr. Justice Paxson

text:
    Egbert versus Egbert.
    1. The signature of a subscribing witness to an ordinary instrument implies only that it was signed by the party purporting to have signed it; but subscribing as a witness to a will is an assertion that the testator was of sound mind when he executed it.
    2. The condition of the testator’s mind at the time of executing the will is part of the res gestae.

    3. On the trial of an issue devisavit vel non, it is competent for the defendant to cross-examine a subscribing witness as to the condition of the testator’s mind at the time the paper was executed.
    4. All occurring at the execution of a will, including the testator’s mental and physical condition, is proper for cross-examination.
    5. The presumption is in favor of sanity, and the burden of proving unsoundness in a testator is upon the party impeaching the will.
    January — 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Montgomery county: No. 28, to July Term 1874.
    This was a feigned issue, made up August 23d 1873, to try the validity of a paper writing purporting to be the last will of David N. Egbert. George T. Egbert and Horace P. Egbert were plaintiffs, and Hamilton Egbert and William Davis were defendants.
    The case was tried March 2d 1874, before Ross, P. J.
    For the plaintiffs John Baltz, one of the subscribing witnesses, testified : that he saw the testator “ put his name to it as his will.” Witness further testified, on cross-examination, as to the circumstances, &c., under which the will was executed.
    The defendants then proposed to ask witness, on cross-examination, a number of questions, for the purpose of showing testator’s condition of mind ; these were objected to by the plaintiffs, rejected by the court and several bills of exceptions sealed. The questions appear in the specifications of error given hereafter.
    The other subscribing witness testified that the testator signed the will; the will was read in evidence.
    The court charged:—
    “ This ease, in consequence of the action of the defendants, has resolved itself into very harrow limits. Under the testimony the only question which is open for your consideration is, whether the alleged testator executed the paper writing, as to which this issue was framed, as and for his last will and testament. If you believe the testimony, he was a man of full age, and when one of full age executes a testamentary paper, in accordance with the statutory requisites, he is presumed to have been, at the time of its execution, of sound mind and memory, and uncontrolled by undue influence. [It rests upon those who dispute an alleged will upon these grounds, to establish their existence either by direct proof or by facts which tend to prove unsoundness of mind, or a mind unduly influenced, in the act of testation. I charge you, therefore, that if you believe, from the evidence, that this alleged testator was of full age and that he executed this paper writing as and for his last will and testament, in the manner described by the witnesses, the law, in the absence of proof to the contrary, presumes he was of sound, disposing mind and memory, and not controlled by undue influence.] ”
    The verdict was for the plaintiffs. The "defendants took a writ of error, and assigned for error that the court rejected the following questions:—
    1. Have not some of the legatees under this will said to you that if the will is set aside you will lose your property, or words to that effect ?
    2. Was David N. Egbert of unsound mind at any time before this will was executed ?
    3. What was the condition of the mind of David N. Egbert, the alleged testator, as to soundness or unsoundness, at the time he signed this paper ?
    4. Did you not know at the time David N. Egbert signed this paper, and you witnessed it, that he was not of sound mind ?
    5. Did you not say more than once before Mr. Egbert signed this paper that he was crazy ?
    6. Before you signed this paper as a witness did not Mr. Egbert ask you to bring your scythe and mow in his yard, saying that his knee caps had dropped off, and he wanted to look for them, or words to that effect ?
    7. Before you signed this will as a witness did you not several times say in the presence of Samuel Metzter, that David N. Egbert was crazy and out of his head?
    8. Did you not say to Samuel Metzter or in his presence, before this will was signed, that David N. Egbert was crazy, that he bad had eight poles cut to throw the church over, and had appointed eight men to do it, and that you were one of those eight men ?
    They assigned for error also the part of the charge in brackets.

      0. JSunsieker (with whom was Gf■ R. Box), for plaintiffs in error.
    The questions rejected went to the subject-matter of the issue and an affirmative answer would have been fatal to the will: Harden v. Hays, 9 Barr 151. The condition of a party’s mind at the’time he executes an instrument, is always a subject of inquiry as to which a subscribing witness may be cross-examined : Doe v. Ridgway, 5 B. & Ald. 55.

      B. M. Boyer, for defendants in error.
    Nothing but the execution of the will and the attestation was put in evidence by the examination in chief; the questions rejected were a substantive defence, which could not be introduced on cross-examination : Breinig v. Meitzler, 11 Harris 157; Mitchell v. Welch, 5 Id. 339; Floyd v. Bovard, 6 W. & S. 77.
   Mr. Justice Paxson

delivered the opinion of the court, February 8th 1875.

The signature of a subscribing witness to an ordinary instrument of writing implies nothing more than that the instrument was signed by the person whose act or deed it purports to be. It is not so in the case of a subscribing witness to a will. His attestation is an assertion not only that the will was signed by the testator, but of the further fact that the testator was of sound mind when he executed it. It is said by Mr. Greenleaf, in his work on Evidence, vol. 2, § 691, that “ the attesting witnesses are regarded in the law as persons placed round the testator, in order that no fraud may be practiced upon him in the execution of the will, and to judge of his capacity.” The condition of mind of a testator, at the time of the execution of his will, is a part of the res gestae. For this reason it has been held that the declarations of a deceased subscribing witness to a will, may be given in evidence to invalidate it: Harden v. Hays, 9 Barr 151. It was, therefore, entirely competent for the defendants, upon the trial of the issue of devisavit vsl non in the court below, to ask John Baltz, a subscribing witness, upon cross-examination, the question: “ What was the condition of mind of David N. Egbert, the alleged testator, as to soundness or unsoundness, when he signed the paper,” and it was error in the learned judge to exclude it. All that occurred at the execution of the will, including the physical and mental condition of the testator at that time, was proper for cross-examination. A testator may be so weak physically as to be unable to write his name ; he may, if necessary, call upon some one present to sign the will for him or to hold his hand while he traces his signature; his mind maybe so clouded by disease or approaching dissolution; or it may be so impaired by intemperance or other vices as to be incapable of forming an intelligent or connected thought. It is clearly the right of parties contesting a will to inquire into such matters upon the cross-examination of the subscribing witnesses. Nor is this a departure from a familiar rule of evidence that a defendant, who has not opened his case will not be allowed to introduce it to the jury by cross-examining the witnesses for the adverse party, for the reason as before stated that the mental condition of a testator at the time of the execution of his will is a part of the res gestos.

This disposes of the third and fourth assignments of-error. As the case will have to go back for a retrial it is proper to refer to the remaining assignments. It is sufficient to say, in reference to the first, that any statements made to the witness by certain of the legatees as to the effect of setting aside the will could not possibly throw any light upon the issues before the jury. The questions referred to in the second, fifth, sixth, seventh and eighth specifications were properly excluded. The rule that a subscribing witness to a will may be cross-examined as to the mental condition of the testator has its limits. The questions propounded to the witness had no necessary relation to the condition of the testator’s mind at the time of the execution of the will. The inquiries were of a vague, rambling character, without any limitation as to time.

We do not see. any error in the charge of the court. The presumption of law is always in favor of sanity, and the learned judge was right in saying that the burden of proving unsoundness of mind in the testator was upon the party impeaching the validity of the will for this cause.

Judgment reversed and a venire facias de novo awarded.


text:
    Roy et al. versus Townsend et al.

    1. In 1853 proceedings in partition in the Orphans’ Court were had under which the land was sold to one of the heirs. On his application representing that he was attorney in fact for three of the heirs, and empowered to receive their shares, the Orphans’ Court, in the same year, authorized the trustee, who sold the land to convey it to the purchaser, upon payment of the shares of all the heirs except his own and his three constituents. In 1870 one of the three heirs, alleging that he had never given the power of attorney nor received his share of the purchase-money, claimed that the purchaser was his trustee, and that he was entitled to his share of the land. Held, that the court on consideration of the application having made the order which was unappealed from, vacated or reversed, it was conclusive that the purchaser was empowered to receive the money of the other three heirs.
    2. If the purchaser had falsely represented that he had the authority to receive their money, it would be a trust, if any, for the heirs implied from their payment of ihe purchase-money, and would be within the limitation of the 6th section of the Act of April 22d 1856.
    3. In this case there was no trust ex maleficio, the title having been vested in the purchaser by, valid sale under the decree of the Orphans’ Court; the injury to the three heirs was simply the use of their money to pay for the title.
    February 25th 18’76.
    Before Agnew, C. J., Sharswood, Williams, Merour, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of July Term 1873, No. 53, '
    This was an ejectment commenced April 1st 1870, by Rachel M. W. Townsend, Wilson Moore Jenkins and Jacob M. Ellis, executors, &e., of John Wilson Moore, deceased, against Michael Roy, Patrick McAdams, John Payne and E. D. Rush. The real estate in controversy was two brick messuages and a frame messuage situate on the north side of Shippen street, between Fifth and Sixth streets, Philadelphia, being the same premises which Gilbert S. Parker, trustee, conveyed to the said Michael Roy on the 14th of June a. D. 1853. ■

      The case was tried January 20th 1873, before Lynd, J.
    On the trial the plaintiff gave in evidence certain proceedings in the Orphans’ Court of Philadelphia in relation to the estate of Bernard Roy, deceased, viz.:—
    July 2d 1852 petition of Bernard Keenan, setting forth that Bernard Roy died in 1831, intestate, without issue, leaving his mother and his widow; also three brothers, Michael, James and Alexander, and four sisters, Catharine wife of Edward Keenan, Mary wife of-McAnally, Margery wife of Patrick Murray, and Rosanna wife of Charles Cummings, and seised of the land in controversy, and other land; that the mother and widow of the intestate afterwards died; that in 1847 Catharine Keenan also died, leaving five children, viz.: Bernard the petitioner, Edward, Michael, Sarah and Francis, the four children last named being minors and having the petitioner for their guardian. The prayer was for partition of the decedent’s real estate. An inquest was accordingly awarded. On the 17th of September 1852 the inquest returned that the premises could not be divided without prejudice, &c., and returned a valuation. On the petition of Bernard Keenau the court awarded a rule on the heirs to accept or refuse the estate at the valuation, and in case of refusal to show cause why the same should not be sold. Some of the heirs having refused to accept, and the others not appearing after due notice, at the return of the rule, and it appearing to the court that there was no administrator, &c., of Bernard Roy, the court,, on the 7th of January 1853, appointed Gilbert S. Parker trustee, to make sale of the premises. On the 18th of February 1853, the trustee returned that he had sold the part of the premises in controversy to Michael Roy for $3000, and the other part to Michael Ferry for $1450; on the same day the sales were confirmed. On the 15th of April 1853, Michael Roy presented a petition to the Orphans’ Court, setting forth his purchase of the premises, and that he was attorney in fact for James Roy, Alexander Roy and Charles Cummings and Rose his wife, to act for them in the premises, and to execute discharges for their shares of the estate ; he prayed the court to make an order directing the trustee to execute to him a deed for the premises purchased by him on his payment of so much .of the purchase-money as was distributable to the heirs not represented by him, together with such sum as might be necessary to meet a proportionate share of the expenses, &c., on the execution by him for himself, and as attorney in fact of proper acquittances. The Orphans’ Court thereupon appointed W. R. Morris, Esq., auditor to ascertain and report the names of the distributees, the amount payable to each, and the amount, if any, payable to liens on the funds.
    The auditor reported that after giving notice by publication in two newspapers in Philadelphia, he sat for the performance of his duties. There were present at the hearing Charles Gibbons, Esq., attorney for Michael Roy in his own right and as attorney in fact for James Roy, Rose Cummings and Alexander Roy; Margaret Murray and her husband Patrick Murray; G. W. Thorn, Esq., attorney for Mary McAnally, Bernard Keenan in his own right and as guardian for his minor brothers and sister. The auditor reported that the balance after payment of expenses, &c., arising from the sale of both lots, be distributed to Michael Roy, Alexander Roy, James Roy, Margery Murray, Rose Cummings and the five children of Catharine Keenan, deceased; each whole share being $495.07. This report was confirmed nisi June 3d 1853, and the trustee was directed to deliver a deed for the premises to Michael Roy on his payment of so much of the purchase-money as was distributable to the heirs not represented by Michael Roy. On the 14th of June Parker, the trustee, delivered a deed for the premises to Michael Roy; all the Orphans’ Court proceedings were recited in the deed. On the same day Michael Roy gave a mortgage on the premises to John Wilson Moore to secure the payment of $2250.
    There was evidence that Michael Roy had never been made attorney in fact for the heirs whom he professed to represent, and that he had not paid them the sums awarded by the auditor.
    The mortgage was sued out by the executors of the mortgagee and bought by them. On the 23d of March 1864, Alexander Roy brought an ejectment for the premises, and on the 5th of September 1864 he recovered judgment; an habere facias was issued and Alexander Roy put into possession. The plaintiffs then brought this ejectment against the defendants as the persons in possession and Alexander Roy, their landlord, was permitted to come in and defend.
    The defendants requested the court to charge:—
    1. That if they find from the evidence that Michael Roy was not the attorney in fact for Alexander Roy, James Roy, and Rose Cummings, and the deed was made to him. by an order of the Orphans’ Court without paying any money therefor, under the evidence in this case the plaintiffs can recover only the one undivided third part of the property mentioned in the writ.
    2. That Michael Roy, by taking the deed from Gilbert S. Parker, trustee, under his petition in the Orphans’ Court when the sale was made under the proceedings in partition, took the same in trust for his brothers and sisters, except that part to which he was entitled as one of the heirs-at-law of Bernard Roy, deceased.
    3. That there being no evidence in this cause that Michael Roy ever paid over to his brothers and sisters their share of the estate awarded to them under the proceedings in partition, they have a legal right to look to the property thus taken by him in trust for them.

      4. That the proceedings in the Orphans’ Court, from whence the mortgagee derived his title, were notice to him of the trust upon which Michael Roy held the title, and that under the facts proved in this cause he is not an innocent purchaser without notice, therefore can recover but the one undivided third part of the property, mentioned and described in the writ.
    The court directed a verdict for the plaintiffs, subject to a reserved question, whether under the evidence there was a resulting trust in Alexander and James Roy and Rose Cumming.
    The defendant obtained a rule for a new trial and for judgment on the point reserved
    The court (Lynd, J.) discharged the rule and entered judgment for the plaintiff, delivering the following opinion:—
    “ This was an ejectment. The title of the plaintiff was under sale in partition in the Orphans’ Court of the estate of Michael Roy, deceased. The proceedings were regular and usual, except that the purchaser instead of paying to the trustee appointed by the court to make the sale and conveyance the entire purchase-money, paid, by leave of court, so much of said sum as was not distributable to himself and three other heirs of Michael Roy, deceased, whom as was alleged he represented. The defendant maintained that as to these three heirs, each of whom was entitled to one-seventh, there was a resulting trust; and that the verdict should have been in favor of the plaintiff for an undivided four-sevenths only of the premises. We are of opinion that the purchaser took by the sale a legal title to the whole property, and any resulting trust for other parties must be asserted by them in the appropriate mode, and within the time limited by the Act of April 22d 1856.
    “ A defendant in ejectment may set up an outstanding title in a third person, but it must be an outstanding legal title. That the plaintiff held the legal title in trust for such third person, certainly could not avail the defendant. But the defendant happens to be one of the three heirs whom the purchaser, at the sale in partition, claimed to represent, as above stated; and he maintains that he can set up at least his own equitable title to the one-seventh of said property; and hence the verdict for the plaintiff should at most have been for an undivided six-sevenths. Unfortunately for this position of the defendant his own evidence discloses that he came into possession of the premises by proceedings in ejectment, commenced on the 23d day of March a. d. 1864, » in which he claimed the whole premises. But the deed in partition was delivered and recorded June 14th 1853, and the resulting trust in favor of defendant could not therefore, under the provisions of the Act of 1856, be enforced after the 22d day of April 1858; primá. facie, therefore, the ejectment commenced in 1864 was too late; the record was not of itself evidence that the action was to enforce the said resulting trust, nor that the possession acquired under said action was acquired in pursuance of said trust. On the’contrary, as he claimed the whole premises when the resulting trust in his favor was to one-seventh only, it is evident from the record that his action was not brought to enforce the resulting trust. Upon all the evidence then the defendant is not a cestui que trust in possession : his possession is that of a mere stranger, and he must yield to the plaintiff’s legal title. At the trial, the question as to whether there was a resulting trust in favor of the defendant was reserved. The views just expressed show that the reservation was immaterial. Hence the motion for judgment upon the point reserved is dismissed, and the rule for a new trial is discharged.”
    The defendants took a writ of error ; they assigned for error :—
    1. Dismissing the motion on the point reserved.
    2. Not rendering judgment for the-defendants.
    3. Deciding the trust was barred by the Statute of Limitations of 1856.
    5. Directing the jury to find for plaintiffs.
    7. Entering judgment for the plaintiffs for the whole property mentioned in the writ.

      -Myers and A. ..V. Parsons, for plaintiff in error.—
    Michael Roy’s acts were fraudulent and vitiated the whole transaction ; Murphy v. Hubert, 7 Barr 429; Martin v. Gernandt, 7 Harris 124. The Act of 1856 therefore does not apply : Biddle v. Moore, 3 Barr 161; Jackson v. Summerville, 1 Harris 359; Harris v. Tyson, 12 Id. 347; Miller’s Appeal, 6 Casey 478; Rockafellow v. Baker, 5 Wright 319 ; Graham v. Pancoast, 6 Casey 89; Marple v. Kussart, 3 P. F. Smith 351.

      O. W. Katz and. 0. Giblons, for defendants in error, were stopped by the court.
   Judgment was entered in the Supreme Court,,March 8th 1875,

Per Curiam.

The title of the plaintiff vested in pursuance of a sale and confirmation of the Orphans’ Court, under proceedings in partition. No attempt was made to impeach the sale for fraud; and the decree remains unappealed from and unreversed. It is obvious, therefore, that the entire title was fully vested in the purchaser at the Orphans’ Court sale. The purchaser procured an order of the court to enable him to use his own share of the proceeds of sale, and the shares of three others for whom he was attorney in fact, ás he set forth in his petition, in payment of the purchase-money. It is claimed that this made him a trustee of the title for these three heirs, on the grotmd that he falsely represented himself to be their agent and attorney. The deed was made to him in 1853, by the trustee, appointed by the court. There are two conclusive answers to this claim. In the first place the court having considered his petition and made the order which has never been appealed from, or vacated or reviewed, the fact must be taken to be true, certainly without evidence to disprove it, that he was empowered to receive the money. Sixteen years had elapsed from the time of the decree until this suit was brought, and no steps had been taken in the Orphans’ Court to vacate or review its order. Clearly therefore every presumption was in favor of the authority of the purchaser to retain these shares. But if it were even conceded that he had no authority and that his petition falsely represented his right to receive the money; at best, if any trust could arise, it would be a trust implied from the payment of so much of the purchase-money with the funds of these three heirs, and this would bring the case within the limitation in the 6th section of the Act of 22d April 1856. No trust ex maleficio arose, for the title vested by a lawful and valid sale under the Orphans’ Court decree, and the injury to these three heirs was simply in the use of their money to pay for the title.

Judgment affirmed.


author: Mr. Justice Agnbw

text:
    Hanna versus Holton.
    1. The assignment of a security to a creditor to hold as collateral security of his debt, establishes a privity of contract, which invests him with the ownership of the collateral for all purposes of dominion of the debt assigned.
    2. When the collateral is lost by the insolvency of the debtor in it, through the supine negligence of the creditor, he must account for the loss to his own debtor.
    3. Plaintiff assigned to defendant a judgment against Jackson, the lien of which expired September 1863, as collateral for money lent to plaintiff; defendant neglected to revive the lien; Jackson sold his land July 1866 and the judgment against him was lost. Held that defendant was liable to plaintiff on the ground of negligence.
    4. Jackson, at the sale of his land, was solvent, and the judgment was collectible. He afterwards died insolvent. Held that the Statute of Limitations began to run from the time of the sale, not from the time when the lien expired.
    January — 1873.
    Before Read, C. J., Agnew, Williams, and Mercur, JJ. Re-argued at Harrisburg, June 1st 1874.
    Error to the Court of Common of Pleas Chester county: Of January Term 1872, No. 250.
    This was an action on the case, brought October 6th 1870, by Alexander Holton against William Hanna, to recover damages for negligence, in not reviving and continuing the lien of a judgment against Jackson A. Holton, in favor of the plaintiff, which had been assigned to the defendant as collateral security for money borrowed by the plaintiff from him.

      The defendant pleaded “ Not Guilty” and the Statute of Limitations.
    On the 19th of March 1858, Jackson A. Holton executed to the plaintiff a bond with warrant of attorney to confess judgment for $1000, payable in five years with interest; judgment on this bond was entered by virtue of the warrant of attorney on the 27th of September 1858 ; it was the first lien, and well secured on a farm belonging to Jackson A. Holton. On the 22d of October 1860, the plaintiff borrowed from the defendant $550, for which he gave his bond payable on the 25th day of the next March, and assigned as collateral security, the bond and judgment above mentioned against Jackson A. Holton, the judgment being marked on the record for the use of the defendant as collateral security for the debt of plaintiff to defendant. On the 27th of September 1863, the lien of the plaintiff’s judgment against Jackson A. Holton expired, and was not afterwards revived. On the 14th of July 1866, Jackson A. Holton sold his farm, which was all the real estate that he owned; he received all the purchase-money, and the bond to the plaintiff remained unpaid. Jackson A. Holton died insolvent on the 8th of January 1867, and the bond of the plaintiff against him was entirely lost.
    These facts appeared on the trial November 14th 1871, before Butler, P. J.
    The defendant’s points were :—
    1. The Statute of Limitations bars the plaintiff’s recovery.
    2. It was not the duty of the defendant to pursue Jackson A. Holton for the collection of the bond assigned as collateral security, or of the judgment entered upon it.
    3. It was not the duty of the defendant to cause the lien of the judgment, marked to his use as collateral security, to be revived.
    4. The plaintiff having obligated himself to pay the defendant the $550 bond, nearly two years before the $1000 bond assigned as collateral security was payable or could be collected, and two years and a half before the lien of the judgment entered upon it had expired, and having neglected to pay the $550 bond, he was in default to the defendant, and there was no further duty on the defendant to the plaintiff with reference to said assigned bond or to said judgment.
    The court answered the points as follows:—
    “We cannot charge the jury as requested by the first point— that ‘the Statute of Limitations bars the plaintiff’s recovery.’
    “We think it does not. We do not regard the neglect to revive the lien at the expiration of the first five years as the cause of action, hut the continued neglect of the judgment thereafter, which resulted in its loss.
    “ The negligence commenced at the period indicated, and continued up to the time the land was sold, at least.

      “ The redress sought is not for the loss of the lien, in 1863, but for the loss of the value of the judgment. This latter loss was not sustained when the lien first expired ; nor until the land was parted with and the debtor had become insolvent, years after. If the judgment had been re-assigned upon the expiration of the lien, and the plaintiff, lying still until the sale of the land and insolvency of the debtor, had brought suit in 1866, for the loss of his property, basing his claim upon the original neglect to revive, he certainly would have been answered that the loss did not result from this, but from subsequent negligence of his own; and it would have been conclusive. If an action had been brought upon the expiration of the lien, the complaint could not have been what it now is —negligence—whereby the value of the judgment was lost. It must have been negligence by which one of its incidents merely (the lien) was lost; and as this could then have been readily restored, and the plaintiff placed where he was before, the damages, if any, must have been virtually nominal.
    “ The question raised by the point is, however, a very interesting one, and we regret that the time afforded us will allow of no more than this very brief indication of the ground on which we dispose of it.
    “ The remaining points are also disaffirmed. We will not say that it was the duty of the defendant, under the circumstances shown here, to issue execution for the collection of the judgment, so long as its lien continued on the land; but we think it was his duty to take care that the lien continued; that the hold upon the land was preserved; and that the judgment did not, while in his hands, become. less secure, or less valuable, by reason of any omission of his.”

      W. B. Waddell and P. F. Smith (with whom was 6r. F. Smith), for plaintiff in error.
    The bond and judgment being assigned, not for collection but as collateral, the defendant incurred no responsibility but from positively detrimental acts: United States v. Simpson, 3 Penna. R. 437 ; Mundorff v. Simpson, 5 Watts 172 ; Morrison v. Hartman, 2 Harris 55 ; Bank United States v. Peabody, 8 Harris 454. As to the Statute of Limitations, the cause of action accrued when the negligence occurred, irrespective of the time when the consequential loss accrued: Miller v. Wilson, 12 Harris 114; Wilcox v. Plummer, 4 Peters 172 ; Howell v. Young, 5 B. & C. 259; Funk v. Smith, 16 P. F. Smith 27 ; Rhines v. Evans, Id. 192; Crawford v. Gaulden, 33 Geo. 173 ; Stephens v. Downey, 3 P. F. Smith 424.

      W. MeVeagh and J. J. Lewis, for defendant in error.
    The transfer of Jackson A. Holton’s bond as collateral put it w'holly for the purposes of care, protection, &c.. in the hands of the defendant; and the plaintiff had no right to exercise any control over it. Whilst the defendant below held the collateral security, his duties towards it were active, and he was bound to use due diligence in regard to it. If, at the termination of such bailment, the collateral security was less valuable by reason of the negligent conduct of the defendant while it was in his hands as collateral security, an action for the loss accrued to the plaintiff against the defendant: Lyon v. Huntingdon Bank, 12 S. & R. 68; Lishy v. O’Brien, 4 Watts 141; Beale v. The Bank, 5 Id. 529 ; Miller v. The Gettysburg Bank, 8 Id. 192; Dyott’s Estate, 2 W. & S. 490 ; Mullen v. Morris, 2 Barr 85; Spalding v. The Bank, 9 Id. 28; Insurance Co. v. Smith, 1 Jones 120 ; Sellers & Nichols v. Jones, 10 Harris 427; Williamson v. McClure, 1 Wright 410; Insurance Co. v. Marr, 10 Id. 507 ; Runel v. Heister, 10 Ala. 535 ; Cardin v. Jones, 23 Geo. 175; Stevin v. Morrow, 4 Ind. 425; Noland v. Clark, 10 B. Mon. 239; Bank v. Martin, 1 La. Ann. 340; Jemison v. Parker, 7 Mich. 355. As to the Statute of Limitations, no right of action accrued till July 14th 1866, when J. A. Holton sold his land; for until then there was no loss to the plaintiff. The duty of conducting the litigation is an entire duty, extending from its beginning to its close, and any action concerning it, whether for liability for negligence in conducting it, may await its conclusion without danger from the Statute of Limitations, unless the negligence is sooner known : Foster v. Jack, 4 Watts 339 ; Derrickson v. Cady, 7 Barr 27 ; Lichty v. Hugus, 5 P. F. Smith 434 ; Overton v. Tracey, 14 S. & R. 311; Leinhart v. Forringer, 1 Penna. R. 492; Jones v. Trimble, 3 Rawle 381; Poe v. Foster, 4 W. & S. 351; Lytle v. Mehaffy, 8 Watts 267; Vanhorn v. Scott, 4 Casey 316; Evans v. Lee, 11 Harris 88 ; Bank v. Waterman, 26 Conn. 324; Insurance Co. v. Marr, 10 Wright 504; Newbert v. Cunningham, 50 Maine 231; Hancock v. Wilhoite, 1 Duvall 588 ; Polly v. McCall, 37 Ala. 20; Keefer v. Zimmerman, 22 Md. 274 ; Norton v. Hall, 41 Verm. 471; Bottom v. Williams, 3 Bush 521; Singleton v. Townsend, 45 Mo. 379 ; Angell on Lim., sect. 173.
   Mr. Justice Agnbw

delivered the opinion of the court, May 17th 1873.

The cases cited for the plaintiff in error are chiefly those of sureties where the indulgence of the creditor was purely permissive, and the surety was therefore held not to be discharged. A creditor who holds a collateral security for the protection of his debt stands in a different relation to the assignor of the collateral, though the latter be his debtor. By the assignment a privity in contract is established, which invests the assignee with the ownership of the collateral, for all purposes of dominion over the debt assigned. He alone is empowered to receive the money to be paid upon it, and to control it in order to protect his right under the assignment. This is the ground of the creditor’s liability for the collateral, as stated by Tilghman, C. J., in Lyon v. Huntingdon Rank, 12 S. & R. 68; and also by the court in Beale v. The Bank, 5 Watts 530. It is therefore settled in this state that where the collateral is lost by the insolvency of the debtor in the collateral instrument, through the supine negligence of the creditor, he must account for the loss to his own debtor, who invested him with its entire control: Miller v. Gettysburg Bank, 8 Watts 192 ; Bank U. S. v. Peabody, 8 Harris 454; Dyott’s Estate, 2 W. & S. 490; Chambersburg Ins. Co. v. Smith, 1 Jones 120; Sellers et al. v. Jones, 10 Harris 427; Lishy v. O’Brien, 4 Watts 141; Muirhead v. Kirkpatrick, 9 Harris 237; Ins. Co. v. Marr, 10 Wright 504. We perceive no error, therefore, in the decision of the court below, that William Hanna must account to Alexander Holton for the loss of the assignment against Jackson A. Holton, by reason of. his omitting to keep up its lien, and afterwards failing to proceed to collect it, until Jackson became insolvent.

This action is not founded on the loss of lien alone. That is but a circumstance or one of.the facts constituting negligence. Had the failure to revive the judgment been the only cause of the loss of the debt, as under some circumstances it might be, the six years having then elapsed before suit, the Statute of Limitations would have been a bar. But the loss of the lien was not in this instance the sole cause of the loss of the debt. Jackson A. Holton continued solvent, and the judgment remained collectible until 1866, when Jackson sold his property, and actually received a large part of the purchase-money himself. Alexander Holton’s debt to Hanna was contracted in October 1860, and he then assigned to Hanna the judgment against Jackson A. Holton as collateral security. The lien of the judgment expired in September 1863 ; Jackson sold his farm in July 1866, and died insolvent in 1867 ; Hanna in the meantime taking no step to secure or to collect the judgment, which all this time stood marked to his usé on the docket. It is very clear that the real injury to Alexander Holton was not consummated until Jackson sold his farm, and put the proceeds in his pocket. The cause of action then arose, and the statute then began to run. At least, this • was the earliest period it could arise, and this was only four years before the commencement of the action. The statute was no bar, therefore, and the judgment is therefore affirmed.

On the re-argument, the judgment was affirmed for the reasons in the foregoing opinion.