author: Mr. Justice Mercur

text:
    Culbertson’s Appeal.
    Where an administrator by agreement of all the parties in interest is permitted to retain a fund for a number of years, to pay over the income to the widow of the decedent and upon her death to his heirs, upon the determinar tion of this trust by decree of court the administrator is entitled to reasonable compensation for services rendered as such trustee.
    May 15th 1877.
    Before Agnew, O. J., Sharswood, Merour, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeal from the Orphans’ Court of Cumberland county: Of May Term 1877. No. 206.
    The facts were these. John Culbertson died in 1850, intestate, leaving a wife, Hannah, and six children. After the payment of the decedent’s debts there was a balance of money, arising out of the sale of his real estate, left for distribution among the widow and children, and by a settlement made between the administrators, the widow and the children, part of said balance viz., §2424.50, was set apart for the benefit of the widow, to remain in the hands of William Culbertson, one of the administrators, who 'was to pay the interest thereon annually to the widow during life and the principal after her death to the heirs of John Culbertson. He regularly paid the interest until April 1st 1874.
    On the 7th of June 1871, the widow and all the children of John Culbertson, deceased, united in a petition to the Orphans’ Court, setting forth that the estate of the decedent had been settled, except as to the said §2424.50, which they had agreed should be paid unconditionally to the said widow upon giving William Culbertson a proper release, which payment he refused to make, and asking that a citation might issue to him to show cause why he should not pay over said fund. Culbertson answered that he refused on the ground that the trust had not legally expired, that it was for the best interest of the widow that it should be maim tained and that she was incompetent to execute a release. The case was referred to an auditor, who reported that the trust ’should be determined and the money paid over, but the Orphans’ Court, on the 20th June 1873, overruled this report and refused to decree the determination of the trust.
    From this decree an appeal was taken, and the Supreme Court reversed the Orphans’ Court and entered an order May 14th 1874, “that the record be remitted with instructions to the court to decree a determination of the trust and payment of the fund to the appellant upon the execution by her and by the heirs of the proper releases to the administrator.” (See Culbertson’s Appeal, 26 P. F. Smith 145.)
    These were filed and upon petition of the widow, the Orphans’ Court, on the 9th of June 1874, in compliance with this order, decreed that the trust was determined and that the specific sum, 12424.50,. with interest thereon from April 1st 1874, should be paid by the trustee to the widow. On a failure to pay over the fund an attachment issued when a partial payment was made, and upon a second attachment issuing to enforce the payment of the balance the trustee filed an account of the trust and claimed credit for-commissions, attorney fees and costs.
    To this account exceptions were filed denying the right of the trustee to said commissions as claimed, both because a decree had already been made for a specific amount and because the credits claimed were illegal and excessive. The account and exceptions were referred to an auditor, Lemuel Todd, Esq., who informed the parties that in his judgment the decree of the Orphans’ Court was conclusive and suggested an application to the court to modify the same, which, when made, was refused. The auditor thén reported that if the question of attorney’s commissions were an open one he would consider it to be his duty to allow reasonable commissions, but in his opinion the decree of the Orphans’ Court was binding upon him and he had no power to go behind and make any allowance that would reduce the specific sum therein named to be paid over to the widow, and he therefore sustained the exceptions and reported accordingly.
    The report was confirmed by the court and from this decree William Culbertson took this appeal.

      W. H. Miller, for appellant,
    contended that the trustee was entitled to commissions, and cited Lukens’s Appeal, 11 Wright 357; McCauseland’s Appeal, 2 Id. 467; Spangler’s Estate, 9 Harris 335; Heckert’s Appeal, 12 Id. 482.

      F. F. Beltzhoover, for appellee.
    The compensation of a trustee is within the discretion of the court: Berryhill’s Appeal, 11 Casey 245 ; Duval’s Appeal, 2 Wright 112; Ex parte Cassel and Spayd, 3 Watts 443 ; Swartswalter’s Account, 4 Id. 79; Witman and Geisinger’s Appeal, 4 Casey 378; Raybold v. Raybold, 8 Harris 308; Dyott’s Estate, 2 W. & S. 566; Stehman’s Appeal, 5 Barr 414; Say’s Ex’r v. Barnes, 4 S. & R. 116 ; Dawson v. McGill, 4 Whart. 240 ; Drysdale’s Appeal, 2 Harris 537; McCahan’s Appeal, 7 Barr 59; Bell’s Estate, 2 Pars. 200; Pusey v. Clemson, 9 S. &; R. 209; Walker’s Estate, Id. 225; Stevenson’s Estate, 4 Whart. 104; Nathans v. Morris, Id. 339; Shunk’s Appeal, 2 Barr 307.
    This discretion having been exercised-in the decree of the 9th of June 1874, and no commissions having been allowed, it cannot be revised and corrected.
    October 1st 1877.
   Mr. Justice Mercur

delivered the opinion of the court,

The present contention arises under the decree made in Culbertson’s Appeal, 26 P. F. Smith 145. That decree should be interpreted in view of the facts there presented as well as by the language of the decree.

The facts show there had been no settlement in the Orphans’ Court of the administrator’s final account. After the payment of debts, a certain sum remained in his hands; by an agreement of all the parties interested, he was suffered to retain this fund. The interest thereon was to be paid to the widow during her life, and upon her death, the principal to the heirs of the decedent.

In the former case the only question was, whether the administrator should be compelled, by the concurring agreement of the widow and all the heirs, to pay over the fund during the life of the widow. That was the only question in issue and considered by the court below or by this court on the appeal. No controversy then existed as to the definite sum to be paid nor as to the right of the administrator to demand compensation for his services.

In the former decree we instructed the court “ to decree a determination of the trust and payment of the fund.” The decree mentions no specific sum. It was so ordered in view of the fact that the administrator had made no final settlement. It purposely left to the court below the ascertainment of the sum to be paid. This necessarily involved a settlement of the account, and a consequent allowance of such compensation as was just and proper under all the circumstances. As a general rule, all -trustees are entitled to a reasonable compensation for services rendered. We see nothing in the fact that this fund came to the hands of the appellant as administrator, and he retained it under the subsequent agreement to take it out of the general rule allowing compensation. The former decree in nowise precluded a just allowance. It merely ordered the sums, which otherwise would have been paid to the widow and heirs, to be now paid to the widow alone. Such compensation, as in the opinion of the court the appellant is entitled to, should be deducted from the whole sum, and he be required to pay over the residue. Whether the compensation shall come out of the interest, or out of the principal fund, is unnecessary now to decide. Inasmuch as all the parties interested in the fund desire both principal and interest to be paid to the same person, the court is not required to ascertain the relative rights of the widow and the heirs. Its whole duty will be performed in ascertaining the sum due from the appellant and in decreeing it to be paid over to the widow. The learned judge misapprehended our former decree, and consequently the just rights of the appellant were denied in the decree of the court below. It must be reversed.

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


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Sawtelle’s Appeal.
    1. If there was sufficient competent testimony before an auditor to sustain his finding of fact and this finding is approved by the Orphans’ Court, this court will not reverse because of the auditor’s admission of some incompetent testimony unless it is shown he was led thereby into some specific error.
    2. "Where a married woman gives a bond and mortgage or a judgment to secure the purchase-money of real estate conveyed to her, they may be enforced against the land, on the equitable principle that she cannot withhold the price and retain the land, but they are not such personal obligations as will entitle the holders to participate in the distribution of the married woman’s estate in the hands of her administrator.
    3. To bind a married woman’s separate estate for medical services rendered herself and family it must be shown that they were rendered at her request and ón her credit.
    May 15th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeal from the Orphans’ 'Court of Cumberland county: Of May Term 1877. No. 211.
    Mary S. Sawtelle died in 1871, seised of two tracts of land and leaving certain personal property, a daughter, Eva A., married to J. J. Cart, and her husband, Nathaniel H. Sawtelle. Letters of administration were granted to the latter on the estate of the decedent. He filed no inventory, but in 1874 filed a first account, wherein he charged himself as follows: “ Amount judgments, notes and accounts on hand $2346.” Mrs. Cart excepted to this account, alleging that accountant had not charged himself with the entire estate, and the account and exceptions were referred to an auditor. Before the auditor there was evidence that at the time of her decease Mrs. Sawtelle had as her separate property in her possession, $2790 in government bonds and cash (this evidence will be found substantially in the opinion of this court), and Mrs. Cart was brought before the auditor to prove certain declarations made by the decedent in her lifetime in reference to her ownership of said bonds and cash. The accountant objected to this testimony for the reason that Mrs. Cart was incompetent to prove said declarations of her mother and that the presumption of law was against such ownership. The auditor admitted the evidence and reported that the administrator should be surcharged with the bonds and cash, and after re-stating the account found the balance in the hands of the accountant to be $3002.20. Out of this balance, “ on the ground that the personal property is the primary fund liable, so as to relieve the realty,” the auditor allowed the claim of R. Givin upon a mortgage executed by the decedent, during coverture, of one tract of her real estate, to secure a balance of purchase-money due thereon, and the claim of the First National Bank of Carlisle on a judgment bond executed by the decedent alone, during coverture, to secure a balance of purchase-money. He also allowed the claims of Mrs. Dr. Hal! and Dr. Dale for medical services rendered the decedent and reported that the balance should be distributed equally between Eva, the daughter, and the husband of the decedent.
    The administrator excepted to this report, alleging that the auditor erred in permitting Eva Cart to testiiy to matters which occurred the decedent’s lifetime, in surcharging the accountant and in allowing the above claims. The court dismissed the exceptions and from this decree this appeal was taken by the administrator.

      J. M. Wealthy and Francis Jordan, for appellant.
    The administrator should not have been surcharged upon the testimony given, as it was neither competent nor sufficient. Under the Act of 1848 the decisions are numerous, commencing with Gamber v. Gramber, 6 Harris 366, that the wife must show by evidence that does not admit of a reasonable doubt, either that she owned the property at marriage, or else acquired it afterwards by gift, bequest, or purchase, and that the burden is on her to prove distinctly that she paid for it with funds that were not furnished by her husband. The bond and mortgage were not entitled to any part of this fund for distribution ; their remedy was against the land: Keiper v. Helfricker, 6 Wright 325; Steinman v. Ewing, 7 Id. 63; Caldwell v. Walters, 6 Harris 82.
    The husband is liable for medical attendance to the wife and for everything else necessary for her during coverture, unless the service rendered is on the credit of the wife and the husband is insolvent, and then it must be proved that the liability was incurred for necessaries and contracted by herself.

      F. F. Beltzhoover, W. F. Sadler and A. B. Sharpe, for appellees.
    The weight of the evidence sustained the report of the auditor, and the strict rule of Gamber v. Gamber, supra, does not apply to this case : Keichline v. Keichline, 4 P. F. Smith 75.
    Eva Cart and her husband were competent under the Act of 9th of April 1870 : Taylor, Executor, v. Kelly, 3 Weekly Notes 206; Diehl v. Emig, 15 P. F. Smith 320; Bierly’s Appeal, 3 Weekly Notes 210.
    The personalty is the primary fund out of which the mortgage should be paid: Walker v. Johnson, 2 Atk. 624; Martin v. Fry, 17 S. & R. 429; Todd v. Todd’s Executor, 1 Id. 457; Hoover v. Hoover, 5 Barr 356 ; Powell on Mortgages 780 ; Mason’s Estate, 1 Pars. Eq. Cas. 131; Mansell’s Estate, 1 Select Eq. Cases 367.
    Where the bond given by a married woman is for purchase-money courts will enforce its payment: Patterson v. Robinson, 1 Casey 81; Conrad v. Shomo, 8 Wright 193; Heacock v. Fly, 2 Harris 540 ; Ramborger’s Adm’r v. Ingraham, 2 Wright 146 ; Brunner’s Appeal, 11 Id. 73.

      The husband was notoriously insolvent, and to pursue him for ' this claim for medical services would have been fruitless.
    June 18th 1877.
   Mr. Justice Sterrett

delivered the opinion of the court,

The subjects of complaint in the first and fifth assignments of error are the surcharge of $2790, for government bonds and currency belonging to the estate, which came into the hands of the accountant; and the incompetency of Mr. and Mrs. Cart as witnesses to prove the possession and ownership of the bonds as part of the assets of the estate. The surcharge, and evidence in support of it, are so connected that they can be better considered together.

In 1871, letters of administration were issued to the appellant on the estate of his wife, Mary S. Sawtelle, who died intestate leaving an only daughter, Eva A. Eichards, afterwards intermarried with J. J. Cart. About three years thereafter, the administrator presented an account, to which exceptions were filed on behalf of Mrs. Cart, and an auditor was appointed to pass upon the same, and make distribution. The exceptants alleged that Mrs. Sawtelle had in her own right $2000 in government bonds, and about $500 in currency, with which the accountant should be charged; and, on the hearing before the auditor, several witnesses were called for the purpose of showing that these bonds, as well as the money, belonged to and were in her possession at the time of her decease, and that they came into the hands of the accountant shortly after-wards. Among others, Mr. and Mrs. Cart were examined, and both testified to declarations and admissions of the appellant, in relation to the bonds and money, since the decease of his wife; but, in addition to- this, Mrs. Cart testified to facts which occurred in the lifetime of her mother. The auditor surcharged the accountant with the value of the bonds, and the money, with interest thereon; and, after re-stating the account and distributing a portion of the fund to several creditors, he divided the residue equally between the accountant and Mrs. Cart. The report was confirmed and the administrator appealed from the decree. As already stated, the testimony of Mr. Cart was confined to what transpired after the decease of his mother-in-law, and for this he was clearly competent under the Act of 1870; but a portion of his wife's testimony related to matters which transpired during her mother’s lifetime, tending to prove her possession and ownership of the bonds, and this is the only part of her testimony about which there appears to be any doubt as to her competency. The word “ actions” as used in the proviso to the Act of 1869, was doubtless intended to embrace all forms of civil proceedings, as well as actions, technically so called, by or against executors, administrators or guardians. The proceeding to surcharge the accountant, in this case, was against him as administrator, nominally at least, and therefore within the letter of the proviso. Without pausing to inquire .whether, according to the true intent and spirit of the act, Mrs. Cart was competent or not to prove facts which came to her knowledge during the lifetime of her mother, it is sufficient to say that we are not called upon to reverse, on this ground, if there was sufficient competent testimony before the auditor to sustain his finding, unless it is shown that he was led into some specific error by incompetent testimony. In this respect, such pro-, ceedings before an auditor differ from common law actions; and, in appeals from decrees of the Orphans’ Court it is our duty “ to hear, try and determine the merits of such cases and decree according to the justice and equity thereof.”

Leaving out of view then that portion of Mrs. Cart’s testimony, which is claimed to be incompetent, was there sufficient other evidence, before the auditor, to sustain his finding as to the facts upon which the surcharge is based? We think there was. The proof of Mrs. Sawtelle’s custody and ownership of the bonds, and the appellant’s possession of them, after her decease, was clear and conclusive. The testimony of Mrs. Doctor Hall, Mrs. Matcher and others, tended strongly to establish these facts. In addition to this, there was the testimony of Mr. Cart and his wife, as to declarations and admissions of the accountant after the decease of his wife, as to which they were both clearly competent under the Act of 1870. Mrs. Cart testified that she saw the bonds, after her mother’s death, in possession of the accountant. She says, He and I were talking and, in handling some other money, he took them- out and said, they are yours.” * * * “ He told me that they were the same that mother had, and that they were to be kept for me.” Again, when he was about going to New York “ he said he had them deposited and told me where to find the papers, showing where they were, in case anything happened him. He told me the papers were in the legs of the boots he was wearing, and that I should be sure to get the boots.” * * * “At the time I saw him on North street, he told me they were the bonds of my mother, and he frequently told me so. He said he considered them mine and would never tread on them. I frequently asked him for them, but he would always put me off to some other, time, but he never gave them to me. I have had conversations with him since my marriage to Mr. Cart, but he always bluffed me.off.__ Sometimes he said he had them in the safe, and at other times he denied that he had them.”

This testimony and a great deal more of like character was before the auditor. In arriving at his conclusions of fact he had no occasion to avail himself of that portion of Mrs. Cart’s testimony which is specially objected to, and we infer from what is said in his report that in point of fact it was excluded from consideration. There was an abundance of evidence without it to justify all the conclusions of fact as to the bonds and money with which the accountant has been surcharged. While the learned counsel for the appellant admit that there was some competent evidence tending to sustain the finding of the auditor, they contend that it was insufficient in degree; that the exceptants were bound to prove ownership of the bonds in the intestate by evidence that did not admit of a reasonable doubt. They insist that the stringent rule of proof established in Gamber v. Gamber, 6 Harris 363, and kindred cases, in regard to contests between creditors and the wife of their debtor, as to property claimed by her, should be applied in cases like the present. We do not think so. The reasons for the rigid rule in the former class of cases do not exist in the latter, and in the absence of the special reasons upon which the rule they contend for is founded, cases like the present should stand upon the ordinary rule as to weight of evidence and degree of proof. In any aspect in which the testimony can fairly be viewed, the auditor and court were right in surcharging the accountant. The first and fifth assignments, therefore, are not sustained.

The Given mortgage, which is the subject of the second assignment, was not entitled to participate in the distribution. While it was doubtless a valid lien on the land embraced therein, it was not a personal obligation or an instrument on which an action could have been sustained against Mrs. Sawtelle personally, in her lifetime, nor against her administrator to charge her estate generally. The remedy of the mortgagee is against the land alone, and if he fails to obtain satisfaction from it he cannot, in any form of proceeding, resort to the estate of the mortgagor remaining in the hands of her administrator. For the same reason the judgment held by the First National Bank of Carlisle was not entitled to share in the distribution. The bond upon which the judgment was entered was void as a personal obligation, but having been given for purchase-money of real estate conveyed to her, the judgment against the land purchased is upheld and may be enforced on equitable grounds, to prevent the injustice of permitting her or her heirs to withhold the price and retain the land. The only recourse is against the land.

The claims of Hr. Dale and Mrs. Dr. Hall for medical attendance were also improperly allowed. It is very clear that if suit had been brought against Sawtelle and his wife, in her lifetime, for the purpose of charging her separate estate for the services rendered to her, the testimony adduced before the auditor would have been wholly insufficient. Instead of showing that they were rendered upon request of the wife, it appears that the husband himself employed one of the physicians, and as to the other there is no evidence on the subject. The act enables the wife to bind her separate estate for' necessaries obtained for herself' and family, but the very essence of the liability is that they are furnished at her request and on her credit. If not so furnished, her separate estate is not liable: Berger v. Clark, 29 P. F. Smith 340. The second, third and fourth assignments are therefore sustained.

It is ordered, adjudged and decreed that so much of the decree of the Orphans’ Court as determines the balance in the hands of the accountant for distribution be affirmed, and the residue of the decree be reversed and set aside; and it is now ordered and decreed that the said balance, viz., $2002.20, with interest from November 30th 1874, be equally divided between the appellant, N. H. Sawtelle, and Mrs. Eva A. Cart; anthat the costs of the appeal be paid by the appellant.


author: Mr. Justice Paxson

text:
    Bowers's Appeal.
    The power of the Orphans’ Court to set aside a sale of real estate made in pursuance of its own order is a matter that rests within the sound discretion of said court, and its exercise, as a general rule, will not be reviewed unless the record shows palpable and gross abuse.
    May 16th 1877.
    Before Agnew, O. J., Sharswood, Merour, Gordon, Paxson, Woodward and Sterrett, JJ.
    Appeal from the Orphans’ Court of Perry county: Of May Term 1877, No. 212.
    Appeal of Alice Bowers from the decree of the court refusing to set aside the sale of the real estate of her father, Finley Bowers, deceased.

      Tbe personal estate of the decedent, amounting to $700, by appraisement, being insufficient to pay his debts, which amounted to $2515.28, his administrator petitioned the Orphans’ Court for an order to sell the real estate.
    The court made the order to sell but no sale could be effected for want of purchasers until upon the third pluries order, when it was sold to the highest bidder for $1626. Before the confirmation of the sale by the court, four of the heirs of the decedent, among them the appellant, excepted to the confirmation and asked that the sale be set aside on the ground that the property was sold below its value ; that before the purchaser had received his deed he had resold it for a greater sum than he paid; and because the property could be sold for $2000. A son-in-law of decedent also petitioned the court to set aside the sale, because the property could be sold for several hundred dollars more, and averred that he could obtain a responsible bidder who would give $2000 therefor. Accompanying this petition was an agreement under seal signed by George Wanner that if the property was again offered for sale he would bid that amount, to which agreement was appended a certificate, signed by four other citizens, of the financial responsibility of Wanner.
    The court overruled the exception, dismissed the petition and confirmed the sale, which action was the error assigned by Alice Bowers, who took this appeal, for which the chief justice of the Supreme Court granted a special allocatur.

      W. N. Seibert, for appellants.
    The decree of confirmation of the Orphans’ Court sale, ended the case in the court below, and was therefore a final decree: Hilbish v. Catherman, 10 P. F. Smith 444; Vensel v. Colner, 1 Weekly Notes 57; and hence under the provisions of the Act of 29th March 1832, Pamph. L. 213, § 59, an appeal lies to this court. Furthermore, the confirmation of sale divesting the heirs of title, at their hands an appeal lies directly : Robinson’s Appeal, 12 P. F. Smith 213, which was heard unquestioned upon a direct appeal from decree of confirmation of sale, divesting title of heirs, by the Orphans’ Court. But to be certainly right and within the ruling of Haslage’s Appeal, 1 Wright 440, a special allocatur was applied for and granted.
    It is conceded that what we are asking to have reviewed here lies within the discretion of the Orphans’ Court, and that in Haslage’s Appeal, supra, this court has said they will not review said court as to the exercise of their discretion except where wrong is great and manifest. We contend however that this is a case to invoke the revision of this court so that the interest of the heirs at law as well as the creditors may be protected.

      W. A. Sponsler, for appellee.
    This court will not review the exercise of discretion, unless it appears on the face of the record that there was a palpable and gross abuse thereof: Neeld’s Appeal, 20 P. F. Smith 113; and also see Helfenstein v. Leonard, 14 Wright 462; North Pennsylvania Railroad Co. v. Davis & Leeds, 2 Casey 238; Hudson’s Appeal, 3 Id. 47 ; Neil v. Tate, Id. 208.
    May 28th 1877.
   Mr. Justice Paxson

delivered the opinion of the court,

The power of the Orphans’ Court to set aside a sale of real estate made in pursuance of its own order, for inadequacy of price, is well settled. It is frequently done when security is offered that the property will bring a higher price at a re-sale. This power has been recognised by this court in Hays’s Appeal, 1 P. F. Smith 58; Brown’s Appeal, 18 Id. 53. It by no means follows, however, that because the power exists, it is to be exercised in all cases. It is a matter that rests in the sound discretion of the Orphans’ Court. As a general rule this court will not review an exercise of discretion unless the record shows palpable and gross abuse: North Pennsylvania Railroad Co. v. Davis, 2 Casey 238 ; Hudson’s Appeal, 3 Id. 47 ; Neil v. Tate, Id. 208 ; Helfenstein v. Leonard, 14 Wright 462; Neeld’s Appeal, 20 P. F. Smith 113. In this case the real estate was sold for $1626. Prior to confirmation it was ascertained that $2000 could be had for it; in fact a responsible bid for that amount was tendered in case of a re-sale. The Orphans’ Court, notwithstanding this offer, confirmed the sale. W e are not sure that this was a wise exercise of its discretion. The question for our consideration, however, is whether the confirmation of the sale was such a palpable abuse of its discretion as to justify our interference. We are not clear that it was. Repeated efforts had been made to sell this property without success, and it was sold at last upon a third pluries order. It was a sale for the payment of debts, and creditors who are delayed in the collection of their money are entitled to some consideration as well as heirs. It also appears from the record that even if the property were sold for $2000 the .estate would not more than pay the debts, leaving nothing for the heirs, who are the parties seeking to have the sale set aside. The creditors, who are the only parties practically interested in the matter, make no complaint.. If they prefer prompt payment of a part of their money to a larger dividend accompanied with delay, the court below did no wrong to the heirs at law in confirming the sale. There ayouM be nothing for them in either event.

The decree is affirmed, and the appeal dismissed; the costs to be paid by the appellant.


text:
    The Juniata Building and Loan Association versus Mixell et ux.

    1. Where a married woman unites with her husband in executing a mortgage on her separate property to secure a loan to her husband which he as a stockholder procured from a building and loan association, it is a valid 'mortgage on her separate property, and under the Act of 1859 covers the premiums due by him as such stockholder and the fines incurred by reason of his default in the payment of dues.
    2. There is nothing either in the letter or spirit of the Act of 1859 that makes it the duty of these associations to inquire for what purpose loans are being obtained by members, or to require any stipulation from the borrower as to the use he shall make of the money, or in any manner to supervise and control its disbursement.
    May 16th 1877.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Bedford county: Of May Term 1877, No. 183.
    Scire facias sur mortgage issued by The Juniata Building and Loan Association against Samuel Mixell and Rebecca, his wife.

      The association was incorporated by the Court of Common Pleas agreeably to the provisions of the Act of April 12th 1859. On the 7th of August 1873, Mixell and his wife executed the mortgage in suit to the association to secure a loan of $400 to Mixell, who was a stockholder. The mortgage was upon the separate property of the wife.
    The jury rendered the following special verdict: —
    “ 1. That the loan for which the mortgage in this case was given was made to defendant, Samuel Mixell, without inquiry by plaintiff as to the purpose for which the funds were to be used, and without stipulation or condition made by plaintiff as to the application by said Mixell of said funds or any part thereof, and were not used for building or buying a house or buying land, and was applied by Mixell to the payment of his debts.
    “2. That on the 7th day of August'1873 defendant, Mixell, received from said plaintiff $390.80, as a loan; that he subsequently paid said plaintiff $9.70 per month for thirteen months, as dues, premiums and interest; that prior to said loan he had paid on stock $8.00.
    “ 3. That the value of defendant’s stock on March 2d 1875 was $56.60 less $12 due for stock payments.
    “ 4. That at the time the mortgage herein was executed, in presence of J. A. Mann, J. P., the same was not read to Rebecca Mixell by said justice, and that at said time the husband of said Rebecca Mixell was present, and that no acknowledgment was made by said Rebecca, separate and apart from her husband. That the object of the paper had been explained to her and that she signed the same, without coercion and of her own free will.

      “ 5. That the land bound by the mortgage, herein, was at the time of making said mortgage, and still is, the separate property of Rebecca Mixell.
    “6. That Rebecca Mixell is not a member of the association, plaintiff, and that they are ignorant in point of law on which side they ought, upon these facts, to find the issue; that if the court upon the whole matter shall be of opinion that the issue is proved for the plaintiff, to find for the plaintiff accordingly, and assess the damages at the sum of $450.38, but if the court are of an opposite opinion, then to find for the plaintiff for the sum of $313.28 as of this date.”
    The court, Hall, P. J., was of opinion that the association had no right to enforce payment of the premiums and fines, inasmuch that in making the loan, under the circumstances found by the jury the association transcended its powers, as it only had the authority to lend its accumulations to members for the specific purpose “ of purchasing or building their own houses,” and judgment was therefore entered for the lesser'sum found by the jury.

      This entry of judgment was the error assigned by the association which took this writ.
    In the argument before the Supreme Court the question was also raised whether a married woman can be held as surety for her husband where he is a member of an association such as the plaintiff, and whether the enforcement of the payment of the premiums and fines is lawful as against her under the terms of the Act of 1859.

      JD. Stewart Elliott and Alexander King, for plaintiff in error.
    As a member of the association, Mixell, who knew its rules, was bound and was its debtor, and as the wife can mortgage her estate to secure her husband’s debt she having here become security by her mortgage is liable. It was not the intent of either the Act of Assembly or the charter of this association that the money loaned to a stockholder should be applied only to the particular purpose indicated by the court below. It is not incumbent upon the association to inquire into the object of the borrower or to look to the application of the loan.

      John Mower and J. B. Cessna,

    contended for the view taken by the court below that the loans of these associations should be confined to the specific purpose “of purchasing or building houses,” and that the corporation transcended its powers when it departed from this purpose, which was alone the object of its creation.
    June 4th 1877.
   Mr. Justice Sterrett

delivered the opinion of the court,

The mortgage on which the scire facias in this case issued, was executed and acknowledged, in due form, by Mixell and his wife, to secure a loan which he, as a stockholder, procured from the Juniata Building and Loan Association. It cannot be doubted that it was competent for Mrs. Mixell to unite with her husband in executing a valid mortgage on her separate property to secure his debt to the association, and the only question is as to the amount of his indebtedness. If, under the facts found by the jury, he is liable for the amount of the loan, including premiums, fines and interest on premiums, his indebtedness, at the date of the verdict, has been ascertained to be $450.38 ; but, if he is not liable for premiums and fines, it was only $313.28. The difference between these sums is the subject of controversy. The special verdict of the jury finds, inter alia, that the loan was made without inquiry by the plaintiff as to the purpose for which the funds were to be used, and without stipulation or condition as to how they were to be expended, and that they were, in fact, applied by Mixell to the payment of his debts.

In view of these facts, the learned judge was of opinion that the association had no right to enforce the payment of the premiums and fines ; that in making the loan under the circumstances found by the jury, the association transcended its authority and was no.t entitled to recover any part of the premiums and fines, for the reason that they were usurious, and accordingly he entered judgment for the lesser sum found by the jury. In this we think there Avas error. The fourth section of the Act of April 12th 1859 makes it the duty of the officers of such associations to offer, at stated times, the money on hand, and loan the same in open meeting to the stockholder who shall bid the highest premium for the preference or priority of loan; and the sixth section declares that no premiums, fines or interest on such premiums shall be deemed usurious, and the same shall be collected as debts of like amount are now by laAv collected. We have recently held, in Wolbach and Wife v. The Lehigh Building and Loan Association, ante 211, that these' provisions do not apply to borrowers who are not members of the association, or who- are not mi juris and incapable of incurring liabilities incident to membership; but, the language of the act is too plain to admit of any doubt that, as between the association and its members, the intention was to legalize the payment of premiums and fines and preserve such loans from the taint of usury. In Selden and Wife v. The Reliable Savings and Building Association, 2 Weekly Notes of Cases 281, it is said that in a scire facias on a mortgage given by a member to the association, ‘‘ it is no defence to say that the borrower has only received a certain sum; for the difference betAveen that and the face of the mortgage is presumptively the premiums, which the act makes legal.” There is nothing either in the letter or the spirit of the act, or in the charter of the plaintiff in error, that makes it the duty of the association, to inquire for what purpose loans are being obtained, or to require any stipulation from the borrower as to the use he shall make of the money, or in any manner to supervise or control its disbursement. The first article of its constitution declares that the association shall have such object and exercise such poAvers as are conferred by the Act of April 12th 1859 ; and the fourth article makes it the duty of the officers to hold stated meetings, at Avhich the money in the treasury shall be offered for loan, upon the conditions and according to the directions and provisions of the fourth and fifth sections of the same act, It thus appears that the charter authority is co-extensive with the power conferred by the act under which the association was incorporated.

The learned judge is no doubt correct in saying that cases of extreme hardship sometimes arise under the operation of the law governing building and loan associations, but it will perhaps be found that they are generally traceable either to the fault or misfortune of the parties themselves rather than to the law under which the associations are organized. Whether this be so or not, if there is anything wrong in the law, the legislature must be appealed to for correction of the evil.

The judgment of the Court of Common Pleas is reversed and judgment is entered, on the special verdict, in favor of the plaintiff for $450.38 and costs, with interest from April 21st 1876, the date of the verdict.


author: Per Curiam.

text:
    Steckman versus The County of Bedford.
    A sheriff or other officer who makes an ineffectual pursuit of a fugitive from justice in several states, under a several requisition of the governor to each state, cannot compel the county from which the culprit fled to pay the expenses for these ineffectual efforts, and this notwithstanding the fugitive was finally captured, tried and convicted.
    May 16th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Bedford county: Of May Term 1876, No. 32.
    This was a case stated the facts of which were, in brief, as follows: George W. Dibert was severally prosecuted in Bedford county for perjury, surety of the peace, for procuring an abortion, adultery and subornation of peijury, and after arrest and before trial escaped. Upon two of these indictments requisitions were obtained from the governor of Pennsylvania upon the governors of West Virginia, Illinois and Missouri, and placed in the hands of Robert Steckman, who was empowered to follow and to receive the fugitive. In pursuance of this authority Steckman, in January 1870, proceeded to Pennsboro, West Virginia, where he was informed Dibert was and discovered he had fled to Illinois. He then returned to Pennsylvania? and on 15th of February 1870, clothed with another requisition upon the governor of Illinois, proceeded to Canton, in that state, and found upon his arrival that the fugitive had the night before fled, into Missouri. He again returned, and in July following, having ascertained the whereabouts of Dibert, in Missouri, he obtained another requisition upon the governor of that state, went to Missouri and succeeded in arresting Dibert, and brought him back to Pennsylvania for trial. He was convicted upon one of the charges and served out his imprisonment in the county .jail. The costs and expenses of Steckman to and from the state of Missouri were paid by the county of Bedford, but the county objected to paying those incurred on the requisitions to the states of West Virginia and Illinois. It was submitted to the court to determine whether the county was liable for these costs and expenses, and the court, Orvis, A. L. J., decided under the authority of Andrus v. County of Warren, 8 Casey 540, that the county was not, and entered judgment accordingly. Steckman, the plaintiff, then took this writ, assigning this entry for error,

      Francis Jordan (with whom were Schell, Spang and Alsip), for plaintiff in error.
    The Act of March 31st 1860, Purd. Dig. 374, provides that the reasonable expenses .of executing process under a requisition shall be paid by the county and the construction of the statute by the court below was too narrow. Where there is a statutory provision, as here, for the payment of the costs and the officer has performed the work with fidelity and diligence, the statute should be more liberally construed. The several attempts made to capture the fugitive were one continuous transaction, and terminated in his arrest, trial and conviction, and the officer having acted efficiently and in good faith is entitled to his costs: United States v. Morse, 3 Story 87. Berks County v. Pile is plainly distinguishable from this case, and Andrus v. Warren County was a claim for expenses in an unsuccessful attempt to arrest a fugitive, and these cases were both anterior to the Act of 1860.

      E. F. Kerr and J. M. Reynolds, for defendant in error,
    relied upon Andrus v. Warren County, supra, and Berks County v. Pile, supra.

    May 28th 1877,
   The judgment of the Supreme Court was entered,

Per Curiam.

We see no error in the judgment of the court below on the ease as stated. We think the sheriff or other person making ineffectual pursuit of a fugitive from justice, in several’ states, under a several requisition of the governor to each state, cannot compel payment of his expenses for these ineffectual efforts. The first section of the Act of 31st March 1860, provides for payment only of “ transporting any person charged with having committed any offence in this state, from another state into this state for trial.” If the act does not provide a just remuneration for expenses incurred in pursuits in other places without effect, the legislature must furnish the remedy. It would open a door to improvident if not unnecessary travelling without any means of restraint; and might lead to improper practices, if the act were to receive the wide construction contended for.

Judgment affirmed.


author: Mr. Justice Woodward

text:
    Ahl versus Rhoads et al.

    1. Where a bank, without the consent of its stockholders, executes a mortgage upon its property to secure the debt of a creditor, which debt consists of deposits in the bank, the execution of this mortgage is not an increase of indebtedness within the meaning of sect. 7, art. 16, of the constitution, which prohibits any increase of indebtedness by a corporation without the consent of a majority of its stockholders.
    2. Even if the execution of this mortgage was the creation of an increased indebtedness to which the constitutional prohibition would apply, where the bank has been incorporated prior to the adoption of the constitution, and has-not since accepted the benefits of any legislation thereunder, it is not subject to the provision.
    3. The Defalcation Act of 1705 does not authorize the admission of proof of damages arising from a technical tort.
    4. The bank made an assignment in pursuance of the provisions of the Act of 16th of April 1850, and in subsequent proceedings under that act it was declared fraudulently insolvent. Under the Act of 12th of April 1867, a bill in equity was filed by the assignees against A., wherein he was charged, with others, with misfeasance and neglect as a director, whereby the fraudulent insolvency of the bank had been produced. The bill alleged that certain acts wherein A. had participated had resulted in a loss to the bank of a specific sum, and prayed for a decree against him for that amount. Pending these proceedings on the bill, A. commenced an amicable action of scire facias against the assignees on a mortgage given to him by the bank to secure deposits made by A., and the assignees proposed to give evidence of the misfeasance and neglect charged in the bill as a set off to his claim. Held, that it was not a proper set off.
    5. Held, further, that the Acts of 1850 and 1867 having provided a mode by which the liability of bank officers- and directors for neglect and malfeasance is to be investigated and established, no other remedy than that prescribed by these statutes can be enforced.
    6. ITayes v. Commonwealth, 1 Norris 518, followed, and Kisterbock’s Appeal, 1 P. E. Smith 483, explained and distinguished.
    May 17th 1877.
    Before Agnew, C. J., Sharswood, Mercur, Paxson, Gordon, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1877, No. 167.
    Scire facias sur mortgage issued by John A. Ahl, for use of Daniel V. Ahl, against John P. Rhoads and Samuel S. Shryock, assignees of the Farmers’ and Mechanics’ Bank of Shippensburg.
    The following, in substance, was the case stated for the opinion of the lower court:—
    “ The Farmers’ and Mechanics’ Bank of Shippensburg was incorporated on the 11th day of April 1862, by a special act of the legislature (see Pamph. L. 1863, p. 661), and shortly after, began and continued to transact the business of banking until the 2d day of April 1876, when it discontinued its banking operations. From the 2d day of November 1863, until the 1st day of November 1874, excepting an interval of a year, John A. Ahl, the legal plaintiff in this amicable action, was a director of said bank.
    “ The said Ahl was a constant customer of and depositor with said bank during the entire period of its operations, and by sundry balanees in his favor, which had accumulated from time to time, had become, on August 25th 1874, creditor of the said bank by deposits, payable on demand, in a large sum of money, to wit, $9083.37, on which day the directors of said bank, as an inducement to the said Ahl not to reduce the balance standing in his favor in any considerable degree, and to increase it as, from time to time, he should have occasion to make deposits, resolved that the president be authorized to transfer to Ahl the mortgage held by the bank against T. P. Blair, as collateral security for any money he may or has advanced to the bank, said Blair having executed the aforesaid mortgage to the said bank for the purpose of securing a debt due by him to it, amounting to $56,071.
    “ On the 6th of October 1874 the resolution aforesaid was rescinded by the board of directors. On the day last mentioned the balance of call deposits in favor of the said Ahl having increased to $15,659.25, stipulations were entered into between him and the said bank, by which it was agreed, as ah inducement to the said Ahl to keep a large balance in his favor in his deposit account, to transfer to the said Ahl the aforesaid mortgage of Blair as a collateral security for the payment of the same with interest, the said deposits being subject to be drawn from by check or otherwise at any time, according to the usage prevailing in banks in reference to call deposits. On the same day this assignment was in due form effected, in pursuance of the resolution of the board of directors. On the 12th of August 1874 previously, an action of debt had been brought by the bank against T. P. Blair, on several of the bonds which the mortgage of Blair had been given to secure to the bank, and a judgment had been recovered on the same on September 14th 1874, and on the same day a fi. fa. issued upon the same, and the personal estate as well as'the mortgaged lands levied upon; and on the 27 th of October 1874 this judgment was assigned to said John A. Ahl, for the same purpose for which mortgage given to secure said bonds had been previously assigned.
    “ On the 12th day of December a venditioni exponas issued, and on the 8th day of January 1875 the real estate mortgaged by said Thomas P. Blair was sold at sheriff’s sale, and the bank became the purchaser thereof, the said John A. Ahl having consented to relinquish his interest under the assignments aforesaid, on condition that the said bank would, within a reasonable time after the vesting of the1 title in it, execute to him a mortgage upon the same lands, for the purpose of securing the deposit balance that should at the time of the making thereof be found standing in his favor.
    “Various fluctuations occurred after October 6th 1874 in the deposit account of the said John A. Ahl, until, on the 29th day of January 1875, the balance in his favor amounted to $17,631.59, on which day, in compliance with the condition on which the said John A. Ahl relinquished his rights under the aforesaid assign-merits to the bank, the bank then executed a mortgage upon the aforesaid lands formerly of T. P. Blair, to secure to him said sum of $17,631.59, with lawful interest one year after date. This mortgage being the one on which this amicable sci. fa. is founded, was in all respects duly executed, save that no previous action of the stockholders, as such, of said bank, was had in reference thereto. At the time of the execution thereof the said John A. Ahl stipulated that the aforesaid deposit balance should no longer be subject to his check or call as it had been theretofore, but should be payable one year thereafter as aforesaid. No portion of the said sum of $17,631.59, or of the interest which has accrued thereon, has been paid.
    “On the 25th day of December 1875 the said John A. Ahl, for full value and bona fide, assigned and transferred the said mortgage to Daniel V. Ahl, the use plaintiff in this amicable action.
    “ On the 3d day of May 1875, in pursuance of the provisions of the Act 16th April 1850 ‘regulating banks,’ under a decree of the Court of Common Pleas of Cumberland county, the said Farmers’ and Mechanics’ Bank of Shippensburg made an assignment of all its estate and effects to John P. Rhoads and Samuel S. Shryock, in trust for the benefit of creditors, who having been approved by the said court, said assignees, being duly qualified according to law, entered upon the discharge of and are now prosecuting the duties of their said trust.
    “ On the 1st day of June 1875, the said Court of Common Pleas, in obedience to the fourth section of the act regulating banks, approved 16th April 1850, appointed auditors, who on the 14th day of December 1875, made their report to the said court finding the said bank to be fraudulently insolvent; thereupon in conformity with an Act approved 12th April 1867, the said assignees in August 1876, filed a bill in equity, which is still pending and is progressing duly towards decree, in which they complain inter alios, against the said John A. Ahl for various misfeasances and neglects of him as a director alleged to have been committed jointly by him with his co-directors, and to have occasioned the fraudulent insolvency of the said bank.
    “ If the court should be of the opinion that said board of directors of said bank had the power to execute said mortgage, without previous consent of the holders of a majority of the capital stock, and that upon á trial before a jury on a sci. fa. on said mortgage the misfeasances and neglects of duty set forth in said bill in equity on the part of the said John A. Ahl, as aforesaid, would not be admissible in evidence on part of the defendants as a set-off against the debt claimed on said mortgage by Daniel V. Ahl, the equitable plaintiff, then judgment to be entered for the plaintiff for $17,631.59 with interest from January 29th 1875.
    Should the court be of a contrary opinion then judgment to be entered for the defendants.

      The court, Herman, P. J., held that the mortgage given by the bank to John A. Ahl was without authority of law, that whatever may have been the powers of a corporation, prior to the adoption of the constitution of 1874, to increase its indebtedness, the exercise of such powers, without the consent of the majority of the stockholders first obtained, is now, by that instrument as well as by the Act of April 28th 1874, Pamph. L. 73-106, absolutely prohibited, and was of opinion, therefore, that judgment must be given for defendants on the case stated. Having decided the question as to the validity of the mortgage, the court said it was unnecessary to discuss the'second question raised, but observed that on the authority of Kisterbock’s Appeal, 1 P. F. Smith 483, that if the mortgage were such as that the action could be sustained upon it, the misfeasances and neglects of duty on the part of the legal plaintiff, as set forth in the bill in equity, would be admissible in evidence as a set-off to the debt claimed in said mortgage. The court then entered judgment for defendants, which was the error assigned by plaintiff, who took this writ.

      W. Trickett, for plaintiff in error.
    The mortgage was authorized by law : Ardesco Oil Co. v. N. A. Mining and Oil Co., 16 P. F. Smith 382; Dana v. Bank of United States, 5 W. & S. 243, and without concurrence of stockholders : Bank of Pittsburgh v. Whitehead et al., 10 Watts 402; Dana v. Bank, supra; Ardesco Oil Co. v. N. A. Mining and Oil Co., supra. Bank had power to assign whole estate for creditors : Dana v. Bank, supra. The charter of the bank empowers it to mortgage its real estate, and this [Dower is lodged with the directors: Leggett v. N. J. Manufacturing and Banking Co., Saxton’s Chan. 552.
    The provisions of the new constitution were not intended to affect corporations in existence when the constitution went into operation unless they accepted the benefits of new legislation : Hays v. Commonwealth ex rel. McCutcheon, 1 Norris 518. The bank did not increase its indebtedness in giving the new mortgage to Ahl, it simply changed its form, and it is not within the letter or spirit of the constitutional inhibition. The new security was only the recognition and continuity of that w’hich preceded it: Burnhisel v. Firman, 22 Wallace 178.
    A claim recoverable only by action of account render or bill in equity cannot be set off at law : Russell v. Miller, 4 P. F. Smith 164; Klase v. Bright, 21 Id. 192; Hains v. Rapp, 2 Weekly Notes 595. The liability of bank directors and the methods for its enforcement are defined by the Acts of 16th April 1850, Pamph. L. 492, and of the 12th of April 1867, Pamph. L. 71, and the procedure prescribed is not at law, but in equity, and under the provisions of the Act of 1806, the remedy therein provided must be pursued. A jury then, either in an action brought to enforce the liability of directors, or in a set-off to a claim sued before it, has no jurisdiction over alleged torts or misfeasances of directors of banks. Kisterbock’s Appeal, 1 P. F. Smith 483, is plainly distinguishable from this case.

      L. Todd, W. H. Miller, and W. F. Sadler, for defendants in error.
    The borrowing of money by the mortgaging of the real estate of a bank, is not a part of the business of a bank. It could not be otherwise than hurtful to credit of the corporation and most detrimental to the interests of the stockholders. Besides it being unusual for banks to make loans in this manner, the permanent character of the loan, one secured by a mortgage, is also an additional reason why the acquiescence of stockholders in its creation should be had, and makes it the more probable that it is the sort of indebtedness forbidden by the constitution. No reasonable interpretation can be given to the seventh section of article 16 of the constitution, except that it was intended to inhibit the creation of forms and amounts of indebtedness not necessary, and incidental to, and inseparable from, the carrying on the business of the corporation, without the assent of those holding a majority of its stock.
    The debt due by Ahl, for neglect and misfeasance as a director, was fixed or was capable of ascertainment. It did not depend upon the caprice of juries, but the records of the bank. Its books and papers gave the basis from which the liability of Ahl to the bank could be precisely ascertained. It was a mere matter of computation from data about which there could be no dispute. The demand from Ahl could have been collected in action of debt, at least in so far as to many of the acts of omission and misfeasance charged against him in the bill in equity. There was no need of-proceeding in trespass or trespass on the case to enforce Ahl’s liability. Steigleman v. Jeffries, 1 S. & R. 479; Nickle v. Baldwin, 4 W. & S. 290, and Franklin Ins. Co. v. Ellmaker, 6 Id. 439, are authorities which sustain this view of the right to set-off under our defalcation act.
    October 1st 1877.
   Mr. Justice Woodward

delivered the opinion of the court,

On the 6th of October 1874, when the mortgage which the Farmers’ and Mechanics’ Bank of Shippensburg held against T. P. Blair was assigned to John A. Ahl, the legal plaintiff here, an indebtedness to him had accrued and -was existing amounting to $15,659.25. For this indebtedness the mortgage was designed to be a collateral security. It consisted of deposits subject to check, made from time to time in the usual course of business. The arrangement was made, according to the terms of the case stated, “ as an inducement to Ahl to keep a large balance in his favor in his deposit account.” The balance due was payable on demand, and was subject to no lien and no right of retention in favor of the bank. The mortgage of Blair was a security which the corporation at the time could legally hold and was competent to transfer. It was found expedient afterwards to sell the land bound by it, under a judgment for the mortgage-debt that had been recovered, and on the 8th of January 1875 the bank became the purchaser. Ahl’s interest under the assignment was relinquished, upon the agreement of the bank to execute, within a reasonable time after the acquisition of the title, a new mortgage of the same land to him. This was done on the 29th of January 1873, when the deposit balance had grown to the sum of ¡$17,631.59. It was then agreed that the account should be subject no longer to immediate call, but should be payable one year thereafter. Except as to amounts, the relative positions the parties occupied when the Elair mortgage was assigned remained unaltered when the new mortgage was executed. Ahl was the creditor of the bank, with the right to require instant payment. Unless it could be held that the entire business of the-corporation was stricken down, and that the power of its officers to receive deposits at all was utterly withdrawn by the seventh section of the sixteenth article of the constitution and the Act of the 18th of April 1874, passed to carry its provisions into effect, there was nothing in these transactions that could properly be described as the creation or increase of a debt. Their object was to provide a collateral security for an indebtedness that had already legitimately accrued. Under his assignment, the sheriff’s sale could have been prevented by or made subject to the control of Ahl. When he received the new mortgage he acquired a security exactly equivalent to that which he had surrendered. The same land was bound, the same remedies were reserved, and the same indebtedness remained. The power belongs to a corporation as to an individual, unless restrained by its charter or by other statutes, to assign its property or effects to pay preferred creditors, without the authority or consent of its stockholders: Dana v. The Bank of the United States, 5 W. & S. 233. The power of this bank to secure its debt to the plaintiff in the mode adopted here, has not been destroyed or iinpaired by the constitutional provision and the legislation under it, which the defendants have invoked.

Even if the adjustment which these parties made had been of a character to which the inhibition of the constitution of 1873 would, in its terms, apply, still, upon this branch of this controversy, the rule settled in Hays v. The Commonwealth, 1 Norris 518, would be decisive. It was there distinctly held that “ charters of private corporations are left exactly as the new constitution found them, and so they must remain until the companies holding them shall enter into a new contract with the state by accepting the benefit of some future legislation.” The corporate powers and privileges of this bank were created and defined by the act of incorporation passed on the 11th of April 1862, and the general legislation then in force. From the review of the authorities made in The Commonwealth v. The Pittsburgh and Connellsville Railroad Company, 8 P. F. Smith 26, it appears to he settled that a charter confers contract rights -which can be withdrawn or modified only when found to be “injurious to the citizens of the Commonwealth,” and when, in a proper proceeding in which the corporation exercising those rights is a party, the fact of the injury is judicially ascertained.

John A. Ahl was a director of the bank from the 2d of November 1863, until the 1st of November 1874, except for the period intervening between the 3d of November 1868 and the 1st of November 1869. On the 3d of May 1875, the bank made an assignment to the present defendants in pursuance of the provisions of the Act of the 16th of April 1850. Auditors appointed under the fourth section of that act, reported on the 14th of December 1875, that the bank was fraudulently insolvent, a finding which was confirmed by a decree of the Court of Common Pleas on the 30th of March 1876. In August 1876, under the authority of the Act of the 12th of April 1867, a bill in equity was filed by the assignees against Ahl and a number of other persons, in which jointly with them he was charged with misfeasance and neglect as a director in a variety of particulars by which the fraudulent insolvency of the corporation had been produced. The bill alleged that acts in which he participated had resulted in losses amounting to $68,011.75, and contained a prayer for a decree against him for that sum. Proceedings on this bill are still pending in the Common Pleas of Cumberland. The case stated stipulated for a judgment in favor of the plaintiff, if it should be held that the board of directors had the power to execute the mortgage of the 29th of January 1873, without the previous consent of the holders of a majority of the capital stock, and that on the trial of a scire facias on that mortgage the defendants would not be entitled to give evidence of the misfeasance and neglect charged in the bill in equity against the plaintiff, as a set-off to his claim. If the decision on either point should be adverse to the plaintiff, it was stipulated that judgment should be entered for the defendants.

By the Defalcation Act of 1705, a defendant in any action on a contract was authorized to plead payment, and give any bond, bill, receipt, account or bargain in evidence. The construction of this statute by the courts has been broad and liberal. It has been so extended that the right of a defendant may be regarded as established to set off against a plaintiff’s demand any damages capable of liquidation, and for which an independent action ex contractu could be maintained. This may be stated as the general result of the authorities, extending especially from Nickle v. Baldwin, 4 W. & S. 290, to Hunt v. Gilmore, 9 P. F. Smith 450. But, broad and liberal as the construction has been, it has never authorized the admission of proof of damages arising from a technical tort. In Beyer v. Fenstermacher, 2 Whart. 95, it was held that a plaintiff in replevin, founded upon a distress for rent, could not set off a debt due to him by the landlord, or a demand against the landlord, not connected with the rent or the occupation of the premises; and the reason given by Judge Kennedy was that “ an action of replevin, instead of being founded on a deed, bargain or assumption, is grounded on a tortious taking by the landlord.” A debt, or the damages which can be set off as an independent counterclaim, must be such as a jury can find and liquidate in the ordinary way, just as if the defendant were a plaintiff suing in debt, assumpsit or covenant: Russell v. Miller, 4 P. F. Smith 154. The plaintiff owed no contract duty to the bank or to the assignees. His liability has been alleged throughout to rest on misfeasance and neglect of duty. The Act of 1867 prescribed the remedy by bill in equity against officers and directors by whose acts of omission or commission the fraudulent insolvency of a bank should be caused, and it required “the fraudulent acts complained of” to be “ particularly specified.” It was for technical torts — for wrongful acts done while exercising fiduciary functions as bank officers and directors — that the statutory remedy was provided.

An interjection into the trial of a scire facias on a mortgage, or an inquiry into the whole history of the management of this corporation during the period of eleven years that elapsed from the plaintiff’s first election until he ceased to be a director, would involve elements of confusion, inconvenience and incongruity that would be countless. By what limits would the inquiry be bound ? Would the liability of the plaintiff alone be investigated? Would the investigation stop when a charge should be fastened upon him equal in amount to the mortgage-debt ? If so, would the residue of the charge against him be recoverable in the suit in equity ? Or would the entire claim of the assignees, so far as it would extend to him, be adjusted by the verdict and judgment in the scire facias ? What then would be the effect of the adjustment on the other defendants in the bill ? And on what principle and by what process would ulterior rights of contribution be worked out? For every reason of convenience, accuracy and safety, the claim against the plaintiff must be relegated to the forum whose forms and jurisdiction are adapted to its investigation. It was said in Russell v. Miller, supra, that “ where the right of the defendant is only to call the plaintiff to an account, and his demand is such as must be settled by an action of account-render, or by a bill in equity for an account, it is not a proper set-off. A jury cannot pass on a question of this nature without great inconvenience. A set-off to a set-off would not be permitted, and it would be much worse to try before a jury at bar an unadjusted question of account and of profits arising out of a long and complicated business to be found only in numerous books of account.” Objections to the admission of evidence based on inconvenience and of want of adaptability in the tribunal, could never be rested on better grounds than those which exist in the circumstances of this case.

But for a still more conclusive reason, the equitable jurisdiction must be held to be exclusive. The Act of 21st of March 1806 has declared that, “ in all cases where a remedy is provided, or a duty enjoined, or anything directed to be done by an Act or Acts of Assembly, the directions of the acts shall be strictly pursued, and no penalty shall be inflicted, or anything done agreeably to the common law in such cases, further than shall be necessary for carrying such act or acts into effect.” In almost an infinite variety of cases this court has enforced this statutory rule. Apart, indeed, from the Act of 1806, it seems to be a principle of pervading and almost universal application, that where a statute confers a new power or right, and provides a particular mode by which it may be vindicated, no other remedy than that afforded by the statute can be enforced: Chestnut Hill Turnpike Co. v. Martin, 2 Jones 361; 7 Viner 349, tit. Debt, M.; Smith v. Drew, 5 Mass. 514. The entire machinery by which the liability of bank officers and directors for neglect and misfeasance is to be investigated and established, has been provided by the Acts of 1850 and 1867. And before this question arose that machinery had been put in motion. All precedent would be disregarded in invading the jurisdiction which the Court of Common Pleas under the pending bill in equity has legitimately acquired.

To sustain their decision, the court below relied on the authority of Kisterbock’s Appeal, 1 P. F. Smith 483. The circumstances of that case differed in some essential respects from those developed in this record. In the first place, the proceeding there was the distribution of the entire estate of The Premium Loan Association, which had been assigned for the benefit of creditors. All parties in interest were represented before the auditor. He had power to ‘investigate and adjust all existing equities, and no subsequent litigation could arise, and no ulterior rights could be left open or outstanding. His report, when confirmed, was a settlement of all conflicting claims. If this set-off were permitted here, inquiry into the same subject-matter would be still inevitable in the disposition of the bill in equity, and the effect would be to hamper and embarrass that whole proceeding. Again, no statute 'had defined the acts which would create a liability on the part of a director in a loan association, and none had specified the mode by which redress was to be obtained. And again, it was under no statutory rule measured by which particular things done and particular things omitted were to become misfeasance or neglect, just as it was on no doctrine of constructive fraud, that Kisterbock was held responsible. The auditor found the fact of his knowledge of the fraudulent insolvency of the institution at the time when the money he claimed in the distribution was advanced to pay the dividend that had been fraudulently declared. It was because he had been a participant in an actual fraud of which he had actual knowledge that his claim on the fund was postponed. In delivering the opinion of the court, the present chief justice said : “ The question is not whether he might enforce his demand against the corporation, if it were solvent, but he here seeks to have satisfaction out of a fund which belongs to the stockholders, whose interests he has betrayed. The corporation is insolvent, and some one must lose. Shall it be the innocent stockholders, or the guilty participant in the fraud which caused the insolvency ?' It is not a mere set-off, or counter claim, by reason of simple liability of the corporation, but it is a claim to come in on the remnant of the corporate effects, constituting a fund to be distributed justly upon the evidence. He assisted by fraud to reduce the association to insolvency, and thereby to. bring the wreck of its fortunes into distribution, and “now he seeks to put in his hand and withdraw from this fund the very money he gave to carry out the fraud. Every principle of justice requires him to be postponed until the stockholders whom he defrauded are satisfied.” It is manifest, from the facts stated and from the language of the chief justice, that the question now under consideration cannot be determined or even elucidated by any principle that was announced in Kisterbock’s Appeal.

The judgment is reversed, and it is ordered and adjudged that judgment be entered in favor of the plaintiff, in accordance with the stipulations of the case stated.


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    Lingenfelter versus Riddlesburg Coal and Iron Co. King’s Executor et al. versus Same.
    A motion, was made for a new trial in an action of ejectment on the ground that the verdict was irregularly recorded, and at the suggestion of the court an order was agreed upon by both parties to the action whereby the record was amended and the verdict permitted to stand without prejudice to the question of mesne profits,, which was the subject of controversy. Subsequently, a difficulty arising about the construction to be given to this order, the'court made another order, explanatory of the first, and directing that if the terms of the second order were not accepted that the motion for a new trial should be reinstated. The plaintiff refused, whereupon the court made absolute the original motion for a new trial. Held, that this action of the court was not erroneous.
    May 17th 1877.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Bedford county: Of May Term 1877, No. 64 and 65.
    These were two actions of ejectment with notice of claim for mesne profits, the one brought by Jacob Lingenfelter against the Riddlesburg Coal and Iron Company and the Kemble Iron Company, and the other by Alexander King’s Executor and Jacob Lingenfelter against the same defendants.
    The first case was tried in December 1875, and on the 18th of that month a verdict was rendered for the plaintiffs and the damages were assessed at $3811.60. Defendants moved for a new trial which the court laid over to await the verdict in the second case. This second case was called for trial on the 24th of April 1876, and on the 2d of May following a sealed verdict was rendered, “ For the plaintiffs for the land in dispute, and we assess the damages at twelve cents per ton for coal and fifty cents per tree.” This verdict the court ordered the prothonotary to record as follows, “ For plaintiffs for the land in dispute.”
    The plaintiffs moved the court for a rule on defendants to show cause why the verdict should not be -amended according to the sealed verdict of jury, by assessing damages or mesne profits, at twelve cents per ton for coal and fifty cents per tree; and should this motion be denied, then they moved for a new trial, because no damages were allowed by the verdict as recorded.
    Subsequently plaintiffs moved the court for leave “to withdraw so much of said motion as requests the court to grant them a new trial,” and followed this with a petition asking leave to amend the record “ so that the subject of mesne profits might be entirely omitted from the same.” The court refused this petition, but gave leave to plaintiffs, if they so desired it, “ to file a motion in ordinary form to strike out all claims for mesne profits, so that the issue can be tried hereafter on a separate issue after adjudication of the title.” The court made no disposition of the motion to withdraw the motion for a new trial. On the same day — the 12th of July 1876, which was the last day of the term — the motions for new trials in both cases were argued, and the following order made by the court:—
    “ The motions for new trials are refused on the following terms and conditions, to be accepted .by the counsel — acceptance to be indicated by signing this paper. The record is amended in both ■’the cases so as to strike out all that relates to mesne profits and damages, and the verdicts are to stand for the plaintiffs for the land in dispute. The question of damages is to be settled hereafter in a separate action or actions for mesne profits, to be brought at any time and tried after the final adjudication of the title to the land; plaintiffs not to be prejudiced by lapse of time from this date on the question of mesne profits.”
    The counsel of both plaintiffs and defendants accepted and signed these terms, and they were filed of record.
    A controversy subsequently arising about the construction to be given them, the defendants filed a petition which set forth:—

      “ That at the time said order was made and accepted, it was the understanding of the counsel of the defendants, as wrell as of the court, and, as your petitioners believe, of the counsel of the plaintiffs, that if, upon final adjudication of the title to the lands in dispute, it should be determined that the title to said lands is in the defendants (the Riddlesburg Coal and Iron Company), the plaintiffs were not to demand or claim mesne profits, and any action or actions that they might institute for mesne profits should be discontinued, and that that is the construction which the court intended should be put upon said order; and further, that the counsel for plaintiffs now insist upon an entirely different construction of said order, and claim that the plaintiffs have the right to recover mesne profits, even if the defendants should obtain two verdicts and judgments in ejectment for the land — a construction utterly at variance with that which was intended by the court, and your petitioners are apprehensive that great wrong and injustice may result to them if the construction of said order contended for by the plaintiffs’ counsel should prevail. They therefore pray the cpurt to take such action in the premises as will effect and carry out the intentions of the court and the understanding of the counsel of the parties at the time the order aforesaid was made.”
    Whereupon the court, on the 26th of September 1876, made the following order:—
    “ The order of the court of 12th of July, refusing the motions for new trials, and amending the record by striking out all relating to mesne profits, in both cases, wasunade with the design to eliminate from both cases all that related to mesne profits, and allow the title to the land to be first settled by two verdicts and judgments in ejectment, and thereafter Lingenfelter’s claim to damages, provided he ultimately recovered the land. It was not the intention that Lingenfelter should recover any mesne profits whatever, if the title to the land was ultimately settled to be in the defendants. The oral explanation of the court béfore the order was made was full and explicit, and, as the court understood it, the contemplated action of the court was accepted and concurred in by the counsel on both sides.
    “ If the order of court, as reduced to writing, will admit of any other construction, it is an error and must be corrected. It is hereby supplemented by this writing, intended to make plain its meaning (if, indeed, there can be any doubt in regard thereto), to be accepted by the counsel on both sides by appending their signatures hereto.
    “ If not so accepted, the said order of the court is hereby revoked, and the motions for new trials are reinstated on the argument list, with the like effect as if no such order had been made.”
    The defendants accepted this order, but the plaintiffs refused, and thereupon the court reversed the oi’der of the 12th of July 1876, and reinstated the motions for new trials, which were granted on October lltli 1876. The granting of these new trials was the error assigned by plaintiffs, who took these writs.

      John Cessna, for plaintiffs in error.
    After the expiration of the term, and after judgment entered, the discretion of the court in opening or granting new trials no longer exists. The day of discretion has passed, and any action of the court after that time is an excess of power and may be reversed by this court: Catlin v. Robinson, 2 Watts 377 ; Ullery v. Clark, 6 Harris 148; Banning v. Taylor, 12 Id. 289 ; Mathers v. Patterson, 9 Casey 485; Sheldon v. Stryker, 42 Barb. 285; Wells v. Melville, 25 Texas 337 ; Hilliard on New Trials 112.

      Russell & Longenecker, George A. Smith and W. H. Koontz, for defendants in error.
    Granting or refusing a new trial is a matter within the sound discretion of the judge who tried the cause: 3 Bl. Com. 388; Buller N. P. 326; Chitty’s General Pract., vol. 4, p. 87; Ross et al. v. Eason, 1 Yeates 14; Emmet v. Robinson et al., 2 Id. 514; Vanlear v. Vanlear, 4 Id. 3; Swearingen v. Birch, Id. 322; Pringle et al. v. Gaw, 6 S. & R. 298; Willing et al. v. Birch, Id. 457; Flemming v. The Marine Ins. Co., 4 Whart. 59. In granting new trials the court knows no limitations, except in some particular cases, but will grant a new trial where it tends to the advancement of justice: Steinmetz et al. v. Curry, 1 Dallas 234; Cowperthwaite v. Jones, 2 Id. 56; Jordan v. Meredith, 3 Yeates 318; Commonwealth v. Eberle, 3 S. & R. 9. And it is within the power of the court to impose terms: Devinney v. Reeder, 1 P. & W. 400; Welsh v. Dusar, 3 Binn. 329; Kuhn v. North, 10 S. & R. 411.
    May 28th 1877,
   The judgment of the Supreme Court was entered,

Per Curiam.

In consequence of a sealed verdict being rendered by the jury which was not sufficiently full, and of the manner in which the verdict was recorded, difficulties sprang up which led to several motions, and among them a motion for a new trial by the plaintiffs, and then a motion to withdraw that motion. On the argument of these motions on the 12th of July, the last day of the term and last sitting of the court, much discussion took place, in which the court participated. The account of the plaintiffs in error is, that after defendants’ attorney had concluded his ai-gument, the “ court began to intimate opinions, saying if the defendants did not agree to so and so, new trials would be refused, and if plaintiffs did not consent to this and that, new trials would be granted. Before the attorney for plaintiffs had fairly commenced his reply, the court stated the substance of the agreement of that date, and the plaintiffs at once accepted.” After consultation, the defendants also accepted, and the court reduced the agreement to -writing. The judge says, in his amendment of September 26th 1876, that the “oral explanation of the court before the order was made was full and explicit, and, as the court understood it, the contemplated action of the court was accepted and concurred in by the counsel on both sides. If the order of the court as reduced to writing will admit of any other construction, it is an error and must be corrected.” The court accordingly stated in writing the agreement as proposed by it and accepted, to stand as an amendment of the former writing, and, to prevent all complaint of injustice, ordered it to be presented for acceptance by the counsel, and if not accepted, then ordered a new trial. It was not accepted, and after a full time allowed, viz., on the 11th of October, a new trial was granted.

Thus the undeniable history of the case makes it plain that the ordinary course of trial by jury was interrupted by the act of the court itself, which at that instant had power to grant or refuse the pending motions, and that the judgment following the agreement was not an adversary judgment in due course of law, but was upon consent, and is to be likened rather to a confessed judgment. Being founded on the agreement, in one sense imposed by the court, it is plain that an error in the agreement ought to be corrected, and that no court, having the interests of justice in view, would suffer its own act to conclude the parties. It is perfectly evident that the agreement became immediately the subject of difference of opinion between the opposite counsel, for the motion to reform the judgment came on the first day of the next term, at the first opportunity. And- that this difference of opinion is vital, is made manifest by the argument of the counsel ‘of the plaintiffs in error, which attributed to the judge a want of knowledge, when the agreement was written, of the effect of a verdict in ejectment upon the right of the plaintiffs to recover mesne profits. The purpose of the judge was to defer the question of mesne profits until a final determination of the title, and then to make the recovery of any profits contingent on .this question of title. Instead of this, the plaintiffs in error seek to make the judgment absolute as to the right to the mesne profits for the space intervening between the service of the writ and execution of the habere facias possessionem,, which-we do not doubt is contrary to the intention of the agreement of July 12th, though not expressed so as to save it from a decided difference of opinion on this point. The court was therefore right in amending the agreement, if agreed to, and if not, in setting it aside as contrary to its own intention when drawn up and offered for acceptance. Unless this power be admitted the grossest injustice might be done. Courts do not sit to catch parties in legal traps.

Proceeding affirmed in both cases.