author: Agnew, J. —

text:
    Grubb versus Grubb et al.

    1. Clement and Edward owned in common “ The Mount Hope Estate,” which consisted of several tracts of land and one-sixth of “ three certain mine-hills * * * known as Cornwall Ore BanksClement conveyed to Alfred his half of “ The Mount Hope Estate,” designating the particular tracts, “together with the right, &c., so far as the said Alfred’s right under this conveyance in said Mount Hope Furnace is concerned,of the said Clement to raise, &c., for the use of said furnace iron ore out of three certain mine-hills, &c., known as 1 The Cornwall Ore Banks,’ &c., but for so long and such time only as said furnace can be carried on, &c., by charcoal.” Held, that this conveyance granted to Alfred a limited privilege to take ore, and did not convey the corporeal estate in the mine-hills ; that remained in Clement.
    2. The deed from Clement to Alfred recited that Clement held the said landún common with Edward ; in an action of partition by the heirs of Edward against Alfred, Held, that the deed was primá facie evidence for plaintiff of the title of Edward’s heirs.
    3. In the partition the plaintiff demanded “ The Mount Hope Estate,” setting out ther particular tracts, and not the ore-hills, but averred that each tenant was entitled to one-eighth, with the “ appertenancesHeld,t\i&i the right to ore in mine-hills passed under “ appertenances.”
    May 6th 1873.
    Before Read, C. J., Asnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1873, No. 44.
    This was an action of partition, in which E. Burd Grubb, Henry B. Grubb, Charles R. Grubb, by Euphemia P. Grubb their guardian, were plaintiffs, and Alfred Bates Grubb was defendant.

      The writ was issued August 18th 1870.
    The writ was for the partition of “ an estate known and called by the name of Mount Hope, situate partly in Lebanon and partly in Lancaster counties, and composed of the following tracts of land, to wit: One tract situate partly in Rapho township, in Lancaster county, and partly in Lebanon township, in Lebanon county, adjoining lands of the heirs of Thomas B. Coleman, deceased, &c., containing one thousand and eighty-nine acres, with a furnace, &c. One other tract, situate in Londonderry township, in Lebanon county, adjoining lands of the heirs of Thomas B. Coleman, deceased, &c., containing two hundred and seventy-three acres and twenty-eight perches, &c. One other tract, situate in Londonderry township, in Lebanon county, adjoining lands of the heirs of Thomas B. Coleman, deceased, &c., containing two hundred and sixty-two acres and seventy-three perches, &c. One other tract, situate in Lebanon township, in Lebanon county, adjoining lands of the heirs of Thomas B. Coleman, deceased, on all sides, and containing one hundred and thirty acres and forty perches, &c. One other tract, situate in Londonderry township, in Lebanon county, adjoining lands.of Thomas B. Coleman’s heirs, &c., containing one hundred and twenty-five acres.”
    The declaration sot out the writ and that the plaintiffs and the defendant held “ together and undivided the messuages and tracts of land aforesaid, together with the appertenances, one-eighth part whereof, the whole into eight equal parts to be divided, with the appertenances, belongs to the said E. Burd Grubb,” and so with the other parties.
    The defendant pleaded “non tenet insimul;” he also pleaded specially: “that the tracts of land mentioned and described in the declaration of the plaintiffs do not constitute the entire Mount Hope estate, but are merely part and parcel thereof; that the said estate, in addition to the said tracts of land mentioned and described in the said declaration, comprises and includes the one undivided sixth part of three certain mine-hills, situate in Lebanon township, in Lebanon county, and state of Pennsylvania, bounded on all sides by lands late of Robert W. Coleman, deceased, and William Colemah, deceased, and known and called by the name of The Cornwall Ore-banks, and held as a tenancy in common with the heirs of Robert W. Coleman, deceased, the heirs of William Coleman, deceased, and heirs of James Coleman, deceased, by Clement B. Grubb and the plaintiffs and defendant in this suit; that the several tracts of land mentioned and described in the plaintiffs’ declarations are, and for a long time past have been, used in and for the manufacture of iron, by means of a smelting furnace thereon erected, and can be advantageously and profitably used only for that purpose; and the owners of the said Mount Hope estate have for a long time past owned, held and used the said tract of land in connection with the said undivided sixth part of the said Cornwall mine-hills or ore-banks, and as constituting with the same one single estate, and have obtained their supply of ore for the said furnace on the said tracts, erected from the said undivided sixth part of the Cornwall mine-hills or ore-banks. And if partition should be made of the lands demanded in the writ without and apart from the said sixth part of the Cornwall mine-hills or ore-banks, the interest of the defendant in said Mount Hope estate would be seriously impaired and injured, and the defendant says that no partition of the said-tracts of land in the writ and declaration mentioned, without and separate from the said sixth part of the Cornwall mine-hills or ore-banks, can legally be made.”
    The plaintiffs replied, traversing the special plea.
    The case was tried October 21st 1872, before Livingston, P. J.
    The plaintiffs gave in evidence a deed dated October 29th 1845, between Clement B. Grubb of the one part and Alfred Bates Grubb of the other part, conveying to A. B. Grubb, for the consideration of $25,000, one equal undivided half part of the Mount Hope estate, now owned in common and equal interest by Edward B. Grubb and the said Clement B. Grubb, consisting of a furnace * * * and of the following lands thereto belonging, viz.: (the tracts set out in the writ), which were adjudged and confirmed to Edward B. Grubb and the said Clement B. Grubb, their heirs and assigns for ever, in the District Court for the city and county of Lancaster, in an action of partition of February Term 1836, No. 44, in which the said Edward B. Grubb was demandant against Henry 0. Grubb and Clement B. Grubb, &c., defendants. * * *
    Together also with the right, title and interest, so far as the said Alfred Bates Grubb’s right under this conveyance in the said Mount Hope Furnace is interested and concerned, of them the said Clement B. Grubb and Mary Ann Grubb his wife, to raise, dig up, take and carry away for the use and advantage of said furnace iron ore, out of, and from three certain mine-hills, &c., called by the name of “'The Cornwall Ore Banks,” and held as a tenancy in common with the heirs of Thomas B. Coleman and James Coleman, deceased, with ingress, &c., to and from the said mine-hills and every part thereof, for the purpose only of procuring ore for the said Mount Hope Furnace, but for so long and for such time only as the said furnace can be carried on and be kept in operation by means of charcoal. To have and to hold the said one equal undivided moiety, &c., with the appertenances and with the right of ore as aforesaid, unto the said Alfred Bates Grubb) his heirs and assigns, &c. * * * And the said Clement B. Grubb for himself, &c., does covenant, promise, grant and agree to and with the said Alfred Bates Grubb, his heirs and assigns, by these presents, that he the said Clement B. Grubb, and his heirs, the said one equal undivided moiety, &c., * * * shall and wilbwarrant and for ever defend.”
    This deed was produced by the defendant upon notice from the plaintiffs.
    It was admitted that Edward B. Grubb, who in the recital of the deed of October 29th 1845, was stated to be the owner of an equal interest in the. premises conveyed by that deed, died intestate on the 27th of August 1867, leaving four children, the plaintiffs, and a widow.
    The plaintiffs here rested.
    The defendant offered in evidence the record of an action of partition, No. 44, to February Term 1836 of the District Court of Lancaster county, in which Edward B. Grubb was plaintiff and Henry 0. Grubb and others defendants, and in which one part of the premises demanded was “ called by the name of Mount Hope,” consisting of the several tracts claimed in this case, with others, including “the undivided sixth part of three certain mine-hills, situate in Lebanon township, Lebanon county, bounded on all sides by lands of Thomas B. Coleman, and known and called by the name of “ The Cornwall Ore Banks,” and held as a tenancy in common with Thomas B. Coleman and the heirs of James Coleman, deceased ; which said several tracts of land and ore-banks constitute the estate called Mount Hope.”
    The offer was for the purpose of showing that, at the issuing of that writ, Edward B. Grubb considered the undivided sixth part of The Cornwall Ore Banks as part of the Mount Hope estate. The court rejected the offer and sealed a bill of exceptions for the defendant.
    The defendant then offered to prove that “ the ore for the use of the Mount Hope Furnace has been exclusively derived from the Coleman, or Cornwall Ore Banks, in which the Mount Hope estate had an interest, from the erection of the furnace to the present time, and that the value of the Mount Hope estate, without the ore-banks, is about $30,000, and with the rights of the owners of the estate to the ore-banks, worth $130,000.”
    On objection by the plaintiffs, the court rejected the offer and sealed a bill of exceptions for the defendant.
    Defendant offered, in connection with the proceedings in partition, before offered, to prove that the Mount Hope estate, of which, the plaintiffs seek partition, was held to consist of the undivided sixth part of three certain mine-hills, situate in Lebanon township, Lebanon county, together with the several tracts of land described in these proceedings, ever since those proceedings in partition; and that Edward B. Grubb, the plaintiff in those proceedings and the ancestor of the present plaintiffs, and Clement B. Grubb, as tenants in common, as well as Edward B. Grubb, A. B. Grubb, the defenclants in these proceedings, who for twenty-two years so neid, so considered and operated the iron works.”
    The plaintiffs objected to the offer, it was rejected by the court, and a bill of exceptions sealed for the defendant.
    Testimony having closed, the defendant asked the court to charge the jury “ that plaintiffs having failed to show title in themselves, they cannot recover in this action.”
    The court charged: —

      “ The plaintiffs in this action gave the defendant notice to produce the 'deed which they have offered in evidence and read in your hearing; it recites that the land in question, of which partition is sought in this action, was at the time it -was made, held in common and equal interests by and between Edward B. Grubb and Clement B. Grubb, and that by this deed C. B. Grubb and wife conveyed an undivided half part thereof to A. Bates Grubb., the defendant.
    “ It is also admitted, and in evidence before you, that Edward B. Grubb is dead, and that the plaintiffs are the whole of his children. The defendant has asked us to charge you that plaintiffs having failed to show title in themselves, they cannot recover in this action. We decline to do this, and say to you that, under the evidence in the cause, plaintiffs are entitled to your verdict.”
    The jury found for the plaintiffs. •
    The defendant removed the record to the Supreme. Court by writ of error. He assigned for error the charge of the court and the rejection of his offers of evidence.

      W. Mac Veagh and A. Slaymaher (with whom were Q. S. T. Oollis, S. S. Reynolds, W. Darlington and Black), for plaintiff in error. —
    The action of partition in Pennsylvania is as at common law and under statutes of 31, 32 Henry VIII.: Coleman v. Coleman, 7 Harris 100; Miller on Partition 19. The defendant having pleaded the general issue, the plaintiffs were bound to prove their whole case. The action must be by a tenant of the freehold: 16 Viner’s Abr. 236, pl. 16; Co. Lit., § 247, note; McKee v. Straub, 2 Binn. 3; Herr v. Herr, 5 Barr 431. The plaintiffs must prove their title: 5 Bacon’s Abr. 296; 1 Washb. Real Prop. 428. The plaintiff must be seised at the issuing of the writ: Adams v. Ames Iron Co., 24 Conn. 230; Clapp v. Bromagham, 9 Cowen 561; Stevens v. Enders, 1 Green (N. J.) 271; Gilman v. Stetson, 4 Shepley 126; Blanchard v. Brooks, 12 Pick. 56; Griggs v. Peckham, 3 Wend. 436. The recitals are not binding on any persons not parties or privies: Morris v. Vanderen, 1 Dall. 67; Penrose v. Griffith, 4 Binn. 231; Dean v. Connelly, 6 Barr 239; Greenl. Evid., § 23, note 1. There can be no estoppel of one party unless the other is equally estopped: Herman on Estoppel 251; Allen v. Allen, 9 Wright 468. The record of the former partition was pertinent to the issue: 1 Greenl. Evid. §§ 195, 527; Winter v. Walter, 1 Wright 160. Proceedings in partition are in rem: Glover v. Ruffin, 6 Ham. 255; Carwith v. Griffin, 21 Barb. 9; McPherson v. Cunliff, 11 S. & R. 428; Allen v. Hall, 50 Me. 253; Foster v. Abbot, 6 Metc. 299; Edson v. Munsell, 12 Allen 600; Short v. Prettyman, 1 Houston (Del.) 334; Dewitt v. Hervey, 4 Gray 486; Coleman v. Coleman, 7 Harris 100. A judgment in partition is conclusive in Pennsylvania: Miller on Partition 221; Herr v. Herr, 5 Barr 428; Merklein v. Trapnell, 10 Casey 47; Blackwell v. Cameron, 10 Wright 236. A deed is conclusive upon the party executing it, not only as to the very point intended to be effected by the instrument, but also as to the facts recited in it: 1 Greenl. Evid., § 2.3; Carver v. Jackson, 4 Pet. 83; Jackson v. Parkhurst, 9 Wend. 209; Pentz v. Kuester, 41 Mo. 447. The defendants in error are estopped in equity from contradicting the representations, as to the extent of the Mount Hope estate, made in the partition of 1836 by Edward B. Grubb, through whom they claim: Hill v. Epley, 7 Casey 334; Hicks v. Cram, 17 Vt. 449; Millingar v. Sorg, 5 P. F. Smith 225; Goodman v. Losey, 3 W. & S. 528; Martin v. Ives, 17 S. & R. 364; Baily v. Baily, 8 Wright 274. The special plea raised the question of fact whether the Grubb interest in the Cornwall ore-mines was parcel of the Mount Hope estate, and the determination of that question was for the jury, on the evidence which should be brought before them. These two properties constituted a single tenement: 4 Greenleaf’s Cruise'on Real Prop. 265, note; Witney v. Olney, 3 Mason 280; Washb. Real Prop. 626; Grubb v. Guilford, 4 Watts 244; Comyns’ Dig., title Grant, E. 10; Hill v. West, 4 Yeates 142; Murphy v. Campbell, 4 Barr 480. These properties — the Grubb interest in the Cornwall ore-mines and the lands specified in this action — constituting a single estate, this action cannot be maintained. One tenant in common cannot enforce partition of part only of the common estate. Nor does a conveyance by one tenant in common of his interest in part only of the land thus held authorize a co-tenant to enforce partition of such part against the grantee, leaving the residue of the estate unpartitioned: Bigelow v. Littlefield, 52 Me. 26; Gates v. Salmon, 35 Cal. 576; Sutter v. San Francisco, Id. 112; Harlan v. Langham, 19 P. F. Smith 235; 1 Washb. Real Prop. 428; Duncan H. Sylvester, 16 Me. 388; Miller v. Miller, 13 Pick. 237; Sweeney v. Meaney, 1 Miles 167; Rex v. Rex, 3 S. & R. 538. Partition at common law cannot work complete justice in a case like this. Partition in equity is founded in the judicial incompetency of courts of law to furnish a complete remedy in cases where the title is complicated.

      N. M. North and J. L. Reynolds (with whom was O. B. Pen-

      rose), for defendants in error. —
    The interest in the Cornwall ore-banks was incorporeal: Lord Mountjoy’s Case, Godbolt 171; Co. Lit. 164, b; Grove v. Hodges, 5 P. F. Smith 504; Gloninger v. Franklin Coal Co., Id. 9; Carnahan v. Brown, 10 Id. 26. The recital in the deed made a primá facie case; and, although not an estoppel, was evidence of an admission: 1 Greenl. Evid , § 268; Penrose v. Griffith, 4 Binn. 231; Garwood v. Dennis, Id. 314; Allen v. Allen, 9 Wright 473; 1 Stark. Evid. 577; Cumberland Valley R. R. v. McLanahan, 9 P. F. Smith 23; Schuylkill R. R. v. McCreary, 8 Id. 304. Privity denotes both successive ¡and mutual relationship: 1 Greenl. Evid., § 189. A co-tenancy being shown, it continues until the contrary is established: Best on Evid. 342; Best on Presump. 186; Stark, on Evid. 1252.
   The opinion of the court was delivered, July 2d 1873, by

Agnew, J. —

This was an action of partition by the heirs of Edward B. Grubb, in which the defendant pleaded the general issue and specially that the tract of land described in the declaration as an estate known and called “Mount Hope,” does not constitute the entire Mount Hope estate, but a part of it only, and that the undivided one-sixth of three mine-hills, known as the Cornwall ore-banks, have been owned, used and held together with it, constituting one single estate.

This plea the plaintiffs traversed, and raised an issue of fact, whether the undivided one-sixth of the Cornwall ore-banks formed part of the Mount Hope estate. The plaintiffs called for and gave in evidence a deed from Clement B. Grubb to Alfred B. Grubb, dated 29th October 1845, reciting that the Mount Hope estate was then owned in common and equal interests between Edward B. Grubb and Clement B. Grubb. This deed described the same property set forth in the declaration in this case, and in addition thereto conveyed the following mining right, viz.: “ Together also with the right, title and interest, so far as the said Alfred B. Grubb’s right, under this conveyance, in the said Mount Hope Furnace is interested and concerned, of them, the said Clement B. Grubb and Mary Ann Grubb his wife, to raise, dig, take and carry away, for the use and advantage of said furnace, iron ore, out of and from three certain mine-hills in Lebanon township, Lebanon county, bounded, &e., known and called by the name of the Cornwall Ore-banks, and held as a tenancy in common with the heirs of Thomas B. Coleman and James B. Coleman, deceased, with ingress, egress and regress to and from the said mine-hills and every part thereof, for the purpose only of procuring ore for the said Mount Hope Furnace ; but for so long and for such time only as the said furnace can be carried on and be kept in operation by means of charcoal.” The plaintiffs rested on this deed, it being admitted they were the children of Edward B. Grubb. The defendant, for the purpose of showing that the one-sixth of the Cornwall ore-banks was in fact a part of the Mount Hope estate, then offered in evidence the record of a partition to February Term 1836, between Edward B. Grubb ánd the other children of Henry B. Grubb, deceased, in which the premises called Mount Hope, including as a part thereof the one-sixth of the mine-hills, called Cornwall Ore-banks, were awarded to Edward B. and Clement B. Grubb. The court rejected this offer and excluded the record. The defendant then proposed to prove that the ore for the use of the Mount Hope Furnace had been exclusively derived from the Cornwall Ore-banks, and that the Mount Hope estate, with these ore-banks, was worth $130,000, but without $30,000. This offer was also rejected, and the court directed a verdict for the plaintiffs upon the evidence.

In consequence of the course the argument took, it has been necessary to state the attitude of the case thus precisely, in order to extricate it from the volume of extraneous matter introduced by the defendant below. I have no doubt that the voluminous history of the title to the Mount Hope estate contained in the paper-books, down to the deed from Clement B. to Alfred B. Grubb, proves that it included the undivided one-sixth of the mine-hills called Cornwall. But this deed separated the interest of Clement B. Grubb in the mine-hills from the remainder of the Mount Hope estate, which passed by his deed to Alfred B. Grubb. By this conveyance he granted to. Alfred only a special and limited right or privilege of taking ore for the use of the Mount Hope Furnace, retaining in himself the corporeal estate in the Cornwall mine-hills,' which he did not convey. Clement and not Alfred was therefore the co-tenant of Edward B. Grubb in the mine-hills. The court then was right in rejecting evidence of the pre-existing state of the title and unity of the mine-hills with the Mount Hope estate, and in holding that under the deed of 1845, Alfred B. Grubb did not hold these ore-banks in common with the children and heirs of Edward B. Grubb. But it is argued, with much apparent force, this ought not to be, for the law will not suffer so great a wrong to be done to Alfred as to cut off the Mount Hope Furnace from the mines which supply it with ore, thereby sacrificing,' according to the rejected offer, $100,000 in the value of the Mount Hope estate, for it is worth but $30,000 without the mines, and the right otherwise would be worth nothing, for his privilege is annexed wholly to the Mount Hope estate. If this be true, then there must be a wrong somewhere under an apparent form of right. But we think the error is in assuming that by the partition in the mode being pursued, the mining privilege of Alfred B. Grubb will be severed from his estate in the Mount Hope Furnace. This involves a consideration of the nature of his right, and the incidents flowing from it.

Without- discussing at present the distinction between an easement and a right of profit a prendre, we may say that the mining right of Alfred B. Grubb is clearly a privilege annexed by the deed of Clement B. Grubb to the interest he conveyed in the Mount Hope estate, and will pass with it as appurtenant thereto. ■That it is not a right of profit a prendre in gross, is manifested by the terms of the grant, for it is a right only to take ore for the use and advantage of the Mount Hope Furnace, and the right of ingress, egress and regress is confined to the purpose of procuring ore for the furnace, and that so long only as the furnace shall be operated by means of charcoal. That this is not a grant of the minerals themselves in place, is equally clear from the language of the grant, and is proved also by the cases of Funk v. Haldeman, 3 P. F. Smith 229; Huff v. McCauley, Id. 206; Johnstown Iron Co. v. Cambria Iron Co., 8 Casey 241; Grubb v. Guilford, 4 Watts 223; Brant v. McKelver, 6 Harris 70; Caldwell v. Fulton, 7 Casey 475; Washb. Easem., ed. 1871, p. 10. Not being either a profit a prendre in gross, or an estate in the ore itself, it must rank in that class of easements wherein a right granted out of other land is expressly annexed to land.

A right of profit a prendre, which may be held apart from the possession of land, differs therein from an easement, which requires a dominant tenement for its existence: Bainb. Mines, ed. 3.871, p. 237. But a right of profit a prendre, if enjoyed by reason of holding another estate, is regarded in the light of an easement appertenantto such other estate: Washb. Easem., ed. 1863,p. 7. And, says Mr. Justice Strong, in Huff v. McCauley, supra, 209, some modern decisions have called it an easement, though it was a privilege on another man’s land with profit; and he refers to Ritger v. Parker, 8 Cush. 145, and Post v. Pearsall, 22 Wend. 425. It is immaterial, however, whether we call it an easement or a right of profit a prendre annexed to land. It is the same in nature, and is such a right as can be annexed to other land by express grant, and will pass as appertenant to it. Even land itself, under some circumstances, may be so annexed to other land as to pass as an appertenant: Murphy v. Campbell, 4 Barr 480, 484-5; Swartz v. Swartz, Id. 353; Cope v. Grant, 7 Id. 488; Blain’s Lessee v. Chambers, 1 S. & R. 169; Pickering v. Stapler, 5 S. & R. 107; Hill v. West, 4 Yeates 142, 146; Grubb v. Guilford, 4 Watts 244. In this case the right is incorporeal, not being a grant of the ore ,in place, but of a mere right to dig and take it away for a special' use, and is clearly annexed to the Mount Hope estate by express terms.

The declaration sets forth the Mount Hope estate with the appertenances, in defining the respective interests of the parties, and the writ de partitione faciendo will necessarily pursue the same description, and this will be followed by the final judgment in the same way. It follows that the mining right of Alfred B. Grubb will certainly pass with his interest in the Mount Hope estate, according to the above authorities, as appertenant to it, and consequently it must be valued and appraised along with the Mount Hope estate. It adds to the value of the land on which the furnace is erected, in the same way that a right to back water on other lands adds to the value of a mill; or an alley, or right of way, appertenant to a house in a city, adds to the value of the dwelling. In pursuing the partition in this mode no injustice can be done to the defendant, as the inquisition is under the control of the court, and may be set aside if the jury fail to make the requisite valuation.

It is proper, before concluding, to say we have considered the objection so strongly pressed, that -plaintiffs had shown no title in themselves, because Edward B. Grubb, their ancestor, was no party or privy to the deed from Clement B. to Alfred B. Grubb, and could not be estopped by the recital in it. But the recital that Clement B. and Edward B. Grubb were co-tenants in common in equal interests, is evidence, not on the ground of estoppel on either side, but simply as the admission or acknowledgment of Clement B., under whom Alfred B. Grubb derives title. Being a solemn declaration in writiug of the tenancy in common, it is prímá facie evidence or presumptive of the title of Edward B. Grubb, and stands until it is disproved, just as in many similar cases.

Implications of title are not uncommon even in ejectment, where the plaintiff must recover on the strength of his own title: Taylor v. Dougherty, 1 W. & S. 324; Hastings v. Wagner, 7 Id. 216. Thus, where both parties claim under the same person, neither is bound to go behind the common source of title: Riddle v. Murphy, 7 S. & R. 230. A deed from the commissioners to sell the lands of John Nicholson, under the lien of the state, was primá facie evidence of title in him: McHenry v. McCall, 10 Watts 456. Seisin ;and a descent cast, or a devise, are primá facie evidence of title: West v. Pine, 4 Wash. C. C. 691; Cook v. Nicholas, 2 W. & S. 27; and more to the point is Patton v. Goldsborough, 9 S. & R. 47, where it was held that it was competent to prove the verbal declar■ations of Dr. Smith, that the lot for which ejectment was brought was one of the four lots conveyed to his daughter by his deed of May 1783, the deed having failed to recite the numbers, and the original plan being mislaid, on which it was said he had marked her name within the lots.

Upon the whole case we discover no error, and the judgment is affirmed.


source: Caselaw Access Project

author: Williams, J. —

license: Public Domain

text:
    Walker et al. versus Graham.
    1. Defendants appealed from an award of arbitrators and paid the costs to prothonotary “ by draft.” Held, not to be a payment within the act, and the appeal was stricken off.
    2. There can be no valid appeal without the payment of the costs in money.
    3. Carr v. McGovern, 16 P. P. Smith 457 ; Ellison v. Buckley, 6 Wright 281, followed.
    May 6th 1873.
    Before Read, C. J., Asnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1873, No. 66.

    On the 12th of October 1871, Harrison Graham brought an action of assumpsit against Asahel C. Walker and Samuel Walker, partners, &c. Arbitrators, under a rule of reference taken out by the plaintiff, found an award for $354.20 in his favor. The defendants entered an appeal, and according to the record, the costs were “ Paid prothonotary by defendants by draft.”
    On a rule to show cause on the application of the plaintiff, the court (Livingston, P. J.) struck off the appeal upon the ground that 'the costs had not been paid in money.
    The defendants took out a writ of error and assigned for error, the striking off of the appeal.

      S. B. Reynolds, for plaintiff ir^ error. —
    The record importing verity asserts that the costs were paid; the addition of the words “ by draft” are to be treated as surplusage.

      J. W. B. Swift, for defendant in error,
    cited Ellison v. Buckley, 6 Wright 281; Carr v. McGovern, 16 P. F. Smith 457.
   The opinion of the court was delivered, May 30th 1873, by

Williams, J. —

The Arbitration Act of 1836 makes the payment of all costs, that may have accrued in the action, a condition precedent to an appeal from an award of arbitrators. The payment of the taxed costs is therefore indispensable to the perfection and validity of the appeal. But the prothonotary has no right to accept anything but money or cash in payment of costs ; and, therefore, no valid appeal can be taken from an award of arbitrators if the costs are paid by note, check or draft, or in anything but actual cash: Ellisen v. Buckley, 6 Wright 281; Carr v. McGovern, 16 P. F. Smith 457; Richter v. Cummings, not yet reported. And the reason given for this in Ellison v. Buckley, supra, is that each suit should terminate all its own, and not be the cause of other litigation, by the substitution of notes and credits for actual cash. It is time that it was understood that there can be no valid appeal unless the costs are actually paid in money.

Order striking off the appeal affirmed.


author: Sharswood, J. —

text:
    Hartman versus Danner.
    1. Hartman lent money to Duphorn for a year at 8 per cent, on a note, stated to be at 6 per cent., with Danner as surety; about maturity Hartman agreed to an extension for a year, upon Duphorn paying 2 per cent, usury, and in the same way for a third year. The usury was paid after tho maturity of the note. Danner had no knowledge of the usury or the extensions. Held, that the contract for usury being illegal, it was without consideration and therefore not binding on Hartman, and he could recover from Danner notwithstanding the giving of time.
    2. The payment of the usury after maturity of the note was a payment on account, which the debtor was under obligation to make, and therefore no advantage to one or disadvantage to the other, so as to create consideration.
    3. A payment of part of a debt before due, is a consideration sufficient to support a contract to give time.
    4. Payment of part of a debt due without a release under seal, although received in full satisfaction, will not discharge the debt.
    May 18th 1873.
    Before Read, C. J., Agnew, Siiarswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Adams county: Of May Term 1873, No. 24.
    This was an action of debt brought April 5th 1870, by John Hartman against Frank D. Duphorn and Joel B. Danner on the following note:—
    “ On or before the 3d day of April next, we or either of us promise to pay John Hartman or order, the sum of five hundred dollars ($500) with interest from date. Witness our hands and seals this 3d day -of April 1867.
    Frank D. Duphorn, [seal.]
    J. B. Danner. [seal.]”
    Duphorn was not summoned.
    It was admitted that Danner with the knowledge of Hartman was surety for Duphorn in this note. The defence was that Hartman had given time to Duphorn upon a binding consideration.
    Duphorn testified that at the date of the note he borrowed $500 from Hartman at 8 per cent, interest, and gave Hartman his due-bill for the extra two per cent., and paid the due-bill in a few weeks afterwards; previously to the 1st of April 1868, Hartman asked for payment and Duphorn agreed to give him two per cent, extra interest, to permit the loan to continue another year; Hartman agreed to this; Duphorn paid him his regular interest and gave him a due-bill for the extra interest, which was paid in a short time. In the spring of 1869, Hartman demanded the money, and he again agreed to let Duphorn have it for another year upon paying him 8 per cent, interest; on the 3d or 4th of April 1869, Duphorn paid the legal interest and gave Hartman “ $10 worth of goods for the extra two per cent, which would not have been due until April 1st 1870.” Danner had no knowledge that Duphorn had originally agreed to pay 8 per cent, interest, nor of the different arrangements from year to year to pay the extra interest, nor of the extension of the time.
    There was other evidence corroborating the testimony of Duphorn.
    The plaintiff’s .third point with its answer was:—
    On an offer to pay a rate of interest higher than six per cent, a promise by the holder of a note to give time in consideration of the excess of interest above six per cent., accompanied or followed by payment of such excess of interest, does not constitute such a legal or binding agreement as can be enforced in law, so as to prevent the promissor from proceeding to collect the note after its maturity, and such a promise or agreement does not constitute a defence of which a surety in the note can avail himself so as to defeat its recovery by suit.
    Answer: “ This proposition of law is not correct. An agreement to pay an increase of interest, or a sum of money for an extension of time, if not paid will not have the effect of a binding contract; but where the stipulated sum of money is actually paid the contract is an executed one, as far as the debtor can make it so, and binds the lender or payee to give the stipulated time and suspends his right to bring suit, and consequently discharges the surety, unless he assented to the contract stipulating for an extension of the time of payment, or knowing it did not dissent from it. The case of Galbreath v. Fullerton, cited from the 2d volume of the Legal Opinion, p. 105, does not apply to the facts stated in this point; for in that case the question presented was whether the parties to an unexecuted usurious contract are, both or either of them, bound for its performance.”
    The defendant’s points, which were affirmed, were as follows :—
    1. If Joel B. Danner was the surety of Frank D. Duphorn in the note in suit, and John Hartman, the plaintiff, with knowledge that Mr. Danner was only the surety, entered into a contract or agreement with Mr. Duphorn, without the knowledge or consent of the surety, by which the time for the payment of the note was extended a year beyond the time mentioned in the note, in consideration of Mr. Duphorn giving him his note or due-bill for two per cent, extra interest on the principal sum mentioned in the note, and afterwards received payment of the note or due-bill for the extra interest, it is a new contract and the surety is discharged from liability on the note.
    2. If the plaintiff (knowing that Mr. Danner was the surety in note), after the note was over due, received of Mr. Duphorn ten dollars worth of goods, in consideration of which he agreed to let Mr. Duphorn have the money another year, without the knowledge or consent of the surety, it would be such an agreement between the plaintiff and the principal debtor in the note as would release the surety.
    3. If there was an agreement made at the time the money was obtained, by which Duphorn was to pay eight per cent, interest for the money, and a note or due-bill was given by Duphorn to Hartman for the excess of interest over six per cent, for one year, at the time the money was obtained, which was paid by Duphorn to Hartman, before the note for the money loaned was due, it was only a contract for the one year; and if after, or before,'the note in suit was due, Hartman received another due-bill from Duphorn, which was paid a short time after it was given, for the excess over six per cent, interest for another year, and in consideration of receiving this due-bill for the excess of interest, agreed to extend the time of payment of the note in suit a year beyond when it became due, and the due-bill for this excess of interest was paid to the plaintiff, and all this was without the knowledge or consent of the surety, he is not liable on the note.
    4. If there was an agreement, made nearly a year after the note was given, between Hartman and Duphorn, by which he was to pay eight per cent, interest for the money the note in suit was given for, and in pursuance of such agreement Hartman received ■the due-bill of Duphorn for the extra two per cent, interest, and subsequently, after the note in suit was due, received payment of the due-bill, before the expiration of the time for which the extra interest was paid, in consideration of his agreement with Duphorn to extend the time for the payment of the note a year longer, without the knowledge or consent of the surety, the surety is discharged.
    The court (Fisher, P. J.) further instructed the jury, * * * “ If an agreement to extend the time for the payment of the note in suit was twice made — once for the note for $10, and it was paid and afterwards extended again for the consideration of $10 worth of store goods, which were delivered at or about the time the contract was made — and the time was in each case given as contracted for, it was an executed contract, and bound Mr. Hartman to comply with it. A man cannot commit a sin against the law, and admit his offence, and say : I know I have sinned, but it is to my advantage to admit it, and I therefore do it. He must suffer the penalty of his offence; for no one is permitted to take advantage of his own wrong.
    [We therefore say to you, that if there was a contract to pay an additional per centage for time, and that it was paid and the time was given, Mr. Hartman cannot set up the Act of Assembly in relation to usurious interest as a shield to protect him against the consequences of his illegal act, and that Mr. Danner as a surety can set up the contract as an equitable defence to this action.]

      “ The obligation of a surety, in a note like the present, is not an absolute and unconditional obligation to pay if the principal does not, but in several instances is dependent upon the conduct of the lender. One of them is, that he shall not alter the contract made by the surety, by giving an extension of time. He is not under any obligation to sue the principal debtor as soon as the note becomes due; but if he binds himself, for a consideration executed, to extend the time of payment, so that he is disabled from enforcing the payment of the note, the surety is discharged.
    “ [ín any case of suretyship, the surety has the right to give notice to the creditor to sue the principal debtor as soon as the claim becomes due, or if over due to collect the same by legal process, or he will consider himself discharged. And a refusal or neglect to sue will discharge the surety. And if the creditor has placed himself in such a condition that he cannot sue the debtor, the surety is discharged. If the facts in the case are as contended for by the defendant, and two separate and distinct agreements were made to give time for a stipulated consideration paid to the plaintiff by Mr. Duphorn, and the defendant did not know of the agreement and did not consent to it directly or indirectly, and in' consequence of this arrangement the plaintiff gave Mr. Duphorn the time stipulated for, the defendant is discharged, the plaintiff cannot recover in this case, and your verdict must be for the defendant.]”
    The verdict was for the defendant.
    The plaintiff took out a writ of error and assigned, for error the answers to the points and the parts of the charge in brackets.

      D. McQonachy, for plaintiff in error. —
    The surety must quicken the creditor Avhen the occasion requires it; in default of which the loss is to be attributed to his supineness: United States v. Simpson, 3 Penna. R. 437; Rhoads v. Frederick, 8 Watts 448. Nothing short of an engagement by which his hands are tied and a suit prevented, can discharge the surety: Cope v. Smith, 8 S. & R. 110; Gardner v. Ferree, 15 Id. 28. The holder may defer suing the surety as long as he pleases; he may even promise not to press him or not to sue him. If such .agreement be without consideration, or otherwise void in law, the endorsers are not discharged: Byles on Bills 193, 194. The consideration here being illegal, was therefore void. There could be no ratification by payment. The promise was absolutely void: Pearsoll v. Chapin, 8 Wright 9. Where the contract is in substance or in essential form illegal, neither party can ratify it: Fitzsimmons v. Wallace, 8 Wright 32. An action to recover usurious interest under the Act of 1858, is not in disaffirmance of the contract: Heath v. Page, 12 Wright 130; s. c. 13 P. F. Smith 108.

      S. JB. Woods (with whom was McQlean), for defendant in error.
    —The rights acquired by Duphorn by reason of payment voluntarily made to Hartman, in pursuance of Ms contract for extension, cannot be denied to Mm by Hartman, he having received the money for his promise: Walker v. Coover, 15 P. F. Smith 432. A party may waive the protection of a statute: Slack v. Kirk, 17 P. F. Smith 384. Although an agreement executory may be avoided, yet if a party to it receives the consideration for his promise, it becomes an executed agreement and a new contract binding on the parties: Uhler v. Applegate, 2 Casey 140.
   The opinion of the court — Williams and Mercür, JJ., dissenting — was delivered July 2d 1873, by

Sharswood, J. —

The facts of this case as presented on this record appear to be, that on April 3d 1867, Duphorn, with Danner as his surety, executed and delivered a sealed note, binding them to pay Hartman five hundred dollars on or before April 3d 1868, with interest from date. At the time the note was given, Duphorn, without the knowledge of Danner, agreed to pay two per cent, extra interest, and gave his due-bill for the usury, which was afterwards paid. A short time before the note fell due Hartman agreed to extend the time for another year upon Duphorn’s giving his due-bill for two per cent, extra interest, which was also afterwards paid. In the spring of 1869 the time was again in like manner extended, Duphorn giving to Hartman and his wife ten dollars worth of goods for the extra two per cent., which would not have been due under this arrangement, supposing it to be valid, until April 1870. Danner was ignorant of these extensions. *

Had all this, or any of it, the effect of discharging the surety, Danner ? This evidently depends upon another question, were the agreements to extend the time founded upon a sufficient consideration so as to be legally binding upon the parties ?

A payment of part of a debt, either principal or interest, before it is legally demandable, will be a sufficient consideration to support an agreement to give time: Flynn v. Mudd, 27 Illinois 323; Manufacturers’ and Mechanics’ Bank v. Bank of Pennsylvania, 7 W. & S. 340. But such payment after maturity of the debt has not the same effect, for the plain reason that in a legal sense it is neither a benefit to the creditor, who is entitled to the whole, nor an injury to the debtor, who ought to have done this and more without any promise from the creditor: Pabodie v. King, 12 Johns. 426; Mason v. Peters, 4 Verm. 104; Halstead v. Brown, 17 Indiana 202; Weidman v. Weitzel, 13 S. & R. 96. For the same reason payment of part of a debt, though received in satisfaction, if without a release under seal, will not have the effect of extinguishing the whole : Latapee v. Pechollier, 2 W. C. C. Rep. 180; Greiser v. Kershner, 4 Grill & Johns. 305; Lowrie v. Verner, 3 Watts 319; Savage v. Everman, 20 P. F. Smith 319.

It is clear, as held by the learned judge below, that the due-bills to pay the usurious interest were void contracts under the statute, and could not be a good consideration for any undertaking based upon them: Payne v. Powell, 14 Texas 600. What effect then did the payment of the due-bill given just before the maturity of the note produce ? Assuming it to have been paid after the note had fallen due, it was in law a part payment on account of the debt and latyful interest. It cannot be doubted that either Duphorn or Danner, when sued on the note, could have insisted upon a credit for this amount. Such is clearly the provision of the Act of May 28th 1858, Pamph. L. 622 : “ It shall be lawful for such borrower or debtor, at his option, to retain and deduct such excess from the amount of any such debt.” . What the principal had a right to deduct as payment, the surety may certainly avail himself of. ' It follows, logically, that the payment of this due-bill — and the same principle applies to the subsequent payment in goods — having been made after the maturity of the debt, formed no sufficient consideration for the contract to give further time.

It may be, that when there is a contract to pay interest for a specified period on a debt already due, so that the debtor, without the consent of the creditor, is thereby precluded from paying the debt and interest until the term expires, there is an appreciable benefit to the creditor as well as injury to the debtor: Chute v. Patteo, 37 Maine 102. But nothing upon which to found such a point appears in the evidence in this case. By the original contract, the obligors could have discharged the debt at any time on or before April 3d 1868, and the extensions were evidently of that contract, with this provision.

It may appear to be a very refined technicality that a part payment on account of a debt twenty-four hours' before it is due, will, and'twenty-four hours after, will not form a sufficient consideration for an agreement to extend the time. We must remember, however, that the law pays no regard to the adequacy of consideration. There must be some legal benefit to the one party or injury to the other, though it may be of the slightest kind. It must be a benefit or injury, which the law can recognise and appreciate, not the performance in part or in whole of that which is already an ascertained and matured obligation.

The application of these principles to the answers to the points presented and the charge below, show that the learned judge fell into an error in holding that the payment of the usury, though it may have been after the maturity of the debt, constituted a sufficient consideration for the agreement to give time so as to discharge the surety.

Judgment reversed, and venire facias de novo awarded.

       This case again tried and a verdict and judgment rendered for the plaintiff. On a writ of error to May Term 1874, the last judgment was affirmed.


author: Mercur, J.

text:
    Eshleman’s Appeal. Gyger’s Appeal.
    1. In the distribution of an intestate’s estate between a child and a grandchild, the grandchild takes subject to advancements to him and debts due by him.
    2. In construing a statute the real intention will prevail over the literal sense of the terms.
    3. If the expression of a statute be special but the reason general, the expression is deemed general.
    4. An advancement is an irrevocable gift by a parent to a child of the whole or a part of what it is supposed the child will be entitled to on the death of the parent intestate.
    5. In the distribution of a grandfather’s estate, the grandchildren take by representation through their parent, if the descendants are in different degrees of consanguinity to the intestate; where he leaves grandchildren only they take per capita.

    6. A distributee is not a competent witness in the distribution of a decedent’s estate as to transactions in his lifetime.
    7. Commissions at 2-J per cent, on real, and 5 per cent, on personal property, allowed to an administrator, the estate amounting to $75,000, and involving the usual trouble.
    8. The late general enhancement of values is to be taken into consideration in estimating the reasonableness of commissions.
    May 9th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Appeals from the Orphans’ Court of Lancaster county, in the estate of John Gryger, deceased: Of May Term 1873, No. 91 and No. 86.
    The decedent died intestate on the 12th of April 1870, leaving a large estate, consisting of real and personal property. His heirs at law were a daughter, Elizabeth O. Eshleman, and a grandson, Abijah D. Gryger, the only child of a deceased son, Jesse Gryger.
    Administration of his estate was granted to Mrs. Eshleman. It is to be gathered from the auditor’s report that the real estate of the decedent was sold by the administratrix. Her administration account was confirmed nisi, September 18th 1871; it showed in her hands a balance of $67,300.93.
    One of the items of credit which she claimed was “ commissions on personal property $2673, commissions on real estate $1047.” Total $3720.
    There were a number of exceptions filed to the account, of which the 4th was to the amount claimed for commissions.
    The account was referred to A. H. Hood, W. Leaman, and E. H. Yundt, Esqs., as auditors for adjustment and distribution. With reference to the 4th exception the auditors said:—
    “ The commissions on the personal property do not exceed the customary rate of 5 per cent. The commissions on the proceeds of real estate sold are $10 in excess of 2J per cent. Thompson, J., remarks in Skinner’s estate, 17 Leg. Intel. 381, that the usual commissions 'to- an executor are 2J per cent, on sales of real estate and 5 per cent, on other receipts, and these should not be varied except for cause. The administration of the estate of the present decedent, appears to have been attended with the quantity of trouble, care and responsibility, which the settlement of intestates’ estates ordinarily imposes. The auditors can see no reason for reducing the commissions under the fourth exception, except with respect to the $10 in excess of the 2J per cent, on the sales of real estate, which are struck off, making the commissions allowed thereon, $1037.”
    Some of the other items excepted to were admitted by the accountant to be errors, and the account was corrected accordingly; with these corrections, the auditors reported the balance in the hands of the administratrix for distribution to be $74,659.93.
    In ascertaining the precise amount for distribution the auditors allowed some unadjusted claims against the estate which had not yet been paid by the administratrix, charged the accountant with interest on the balance up to April 1st 1872, and after deducting costs, expenses of audit, &c., ascertained that the actual amount for distribution was $74,330.32.
    On the hearing in relation to the distribution there were presented to the auditors accounts for two classes of claims against Abijah Gyger, in favor of his grandfather, the decedent, containing statements of charges against Abijah and advances to him— some entries made by the decedent “ on a loose sheet of paper,” and the others in numerous “bills, notes, checks and memoranda,” preserved by the decedent with his securities and other valuable papers in a tin box, which was produced after his death from the vault of a bank where it had been deposited by him.
    Abijah D. Gyger offered to testify in explanation of these items of charge against him; the auditors decided that he was not competent on the ground of interest, to testify as to matters occurring in the lifetime of the decedent, and that he was not within the exception of the Act of April 15th 1869. They took the testimony of Mr. Gyger, but did not consider that portion of it which related to transactions in the decedent’s life.
    The auditors found that at the time of the death of the decedent, his grandson, Abijah D. Gyger, owed him $4571.30, and that the amount of advancements from the decedent to the grandson was $10,621.28, both which sums, amounting together to $15,192.58, they charged against his sharp of the estate. The distribution accordingly was:—
    To Elizabeth G. Eshleman . . $44,761.45
    To Abijah D. Gyger . . •- 29,568.87
    $74,330.32
    A. D. Gyger filed exceptions to the report of the auditors.
    1. The rejection of the exceptor’s testimony.

      3. The amount allowed by the account for commissions.
    6. Allowing in the distribution the amount claimed as debts against the exceptor.
    7. Allowing in the distribution the amount claimed as advancements to the exceptor.
    The court (Livingston, P. J.) concurred with the report of the auditors except as to charging advancements against the exceptor.
    In conclusion the judge said:—
    “ We are therefore of the opinion that the auditors erred in charging Abijah D. Gyger with advancements, alleged to have been made to him by his grandfather, in the distribution of his intestate grandfather’s estate; and that they should have charged him with nothing but such debts due from him to his grandfather, as might have been recovered from him by his grandfather in his lifetime, or by the administratrix of his estate, after his decease. But, as this question was not raised distinctly before the auditors, and as their report shows they did not examine into, and discriminate between debts and advancements, with as much strictness and .particularity or nicety as they would have used had this question been fully contested before them, we recommit the report to them to re-investigate the claims made by the administratrix of the estate of John Gyger, deceased, against Abijah D. Gyger, and report any further or additional testimony taken by them concerning the same, together with the distribution made by them after such investigation, to this-court.”
    In their second report the auditors found that the amount of debts due by A. D. Gyger to the decedent was $4880.29. They found, also, that the balance due the estate, including the debts owing by A. D. Gyger, was $78,896.61, This sum they-distributed as follows:—
    To Elizabeth G. Eshleman, $89,443.30.
    To Abijah L>. Gyger (after deducting his indebtedness), $34,568.01.
    Mrs. Eshleman filed five exceptions to this report of the auditors ; the fifth was that the auditors had not charged against A. D. Gyger the advancements made to him.
    A. D. Gyger filed an exception that the auditors charged against him the sum of $4880.29 as indebtedness by him to the decedent.
    .The court dismissed the exceptions and confirmed the second report of the auditors.
    Mrs. Eshleman and A. D. Gyger severally entered appeals to the Supreme Court.
    A. U. Gyger assigned for error:—
    1. That the court confirmed the decision of the auditors in rejecting his testimony.
    2. That the court confirmed the decision of the auditors in allowing the commissions which were credited to the accountant.

      5. That the court confirmed the report of the auditors in charging the exceptor with $4880.29 as due by him to the decedent.
    Mrs. Eshleman assigned for error';—
    1. Deciding that in the distribution of the decedent’s estate, A. D. Gyger, as grandson, was not liable to account for advancements.
    2. Not confirming the first report of the auditors.

      B. F. FsMeman, B. G-. Fshleman, and T. F. Franhlin, for E. G. Eshleman,
    referred to Act of April 8th 1833, sect. 16; 1 Br. Purd. 810, pi. 35, containing the substance of the 9th section of the Act of October 1794, 3 Sm. Laws 147. Under that section land of intestate was adjudged to a grandson : Walton v. Willis, 1 Dall. R. 351. The intention of the legislature was to make equality of distribution, which could not be done if advancements to a grandchild by a child dying before the intestate were not to be taken into account. The construction of an act should be to advance the intention of the legislature: People v. Utica Insurance Company, 15 Johns. R. 358; 9 Bac. Abr. “ Statute ” I. 5, p. 246; 1 Kent’s Comm. 462 ; Dwarris on Stat., 690-696. Grandchildren take by representation and are subject to the debts and advancements to their parents: Earnest v. Earnest, 5 Rawle 213; Hughes’s Appeal, 7 P. F. Smith 180. “ Children ” is often construed to include “grandchildren:” Wyth v. Blackman, 1 Ves. Sr. 196; s. c. Ambler 555; Crawel’s Trust, 8 De G., McN. & Gordon 480; Gale v. Bement, Ambler 681; Royle v. Hamilton, 4 Vesey 437; Haydon v. Wilshere, 3 T. R. 373; Osgood v. Lovering, 33 Maine 464. The claim of the grandchild is certainly no better than the child: 4 Ecc. Law 344, 345; Proud v. Turner, 2 P. Wms. 560; Phinney v. Phinney, 2 Vern. 638; Edwards v. Freeman, 2 P. Wms. 436; Wentz v. DeHaven, 1 S. & R. 314; Lamplugh v. Lamplugh, 1 P. Wms. 111, notes; Hill on Trustees 98; Loyd v. Read, 1 P. Wms. 608; Ebrard v. Dancer, 2 Chanc. C. 26. A grandfather may be considered in loco parentis to a grandchild: Toller on Exr’s. 329, 330; Zeiter v. Zeiter, 4 Watts 214; Powis v. Mansfield, 3 Myl. & Cr. 359.
    As to admitting Gyger’s testimony they cited Mylin’s Est., 7 Watts 67; Breneman’s Est., 15 P. F. Smith 300; Karns v. Tanner, 16 Id. 300; Dellinger’s Appeal, 21 Id. 425; McBride’s Appeal, 22 Id. 480.

      S. B. Price and J. Landis, for A. D. Gyger.
   The opinion of the court in each appeal was delivered, July 2d 1873, by

Mercur, J.

Eshleman’s Appeal.

John Gyger died intestate, leaving a daughter, Elizabeth G. Eshleman, and a grandson, Abijah D. Gyger, the only child of his son, Jesse Gyger, who died during the life of his father. John was appointed guardian of Abijah. From time to time, after Abijah became of full age, John furnished him money and other property.

Upon the distribution of the estate of John between Elizabeth and Abijah, the question arises, whether the latter sustains such a relation to John as to be charged with the property given to him as an advancement. The precise question does not appear to have been hitherto considered by this court. If both the claimants were grandchildren of the intestate, so that they would take per capita, the doctrine of advancements made to them might not apply. Here, however, Abijah takes by representation: Purdon’s Digest’ 807, pi. 14 (C).

Section 16 of the Act of April 8th 1833, Purdon’s Digest 810, pi. 35, provides: that if any child of an intestate shall have any estate by settlement of such intestate, or shall have been advanced by him in his lifetime, either in real or personal estate, to an amount or value equal to the share which shall be allotted to each of the other children of such intestate, such child shall have no share of the real or personal estate of such intestate ; and if such settlement or advancement be to an amount or value less than the share to which he would otherwise be entitled, if no such advancement had been made, then so much only of the real and personal estate of such intestate shall be allotted to such child as shall make the estate of all the said children to be equal, as near as can be estimated.

The manifest design of the law is to equalize the intestate’s property among all his children. It is equally clear that it was not the design of the law-makers to put a grandchild upon higher ground than a child would occupy if living. It is true, the letter of the statute says, “if any child” shall have been advanced. In many eases, however, both in England and in America, it has been held that the word “ child ” may apply to, and include “ grandchild.” The English statute of 22 and 23 Car. II., ch. 10, from which our Act of April 8th 1833, supra, as well as all of our former acts, .relating to distribution, are derived, provides, that “if a child” shall be advanced ; yet it is there held to extend to a grandchild, the father being dead: 1 Eq. Ab. 381, B., pi. 6; 382, B., pi. 8, 9,10,11. Grandchildren and great-grandchildren are all children, and come within that to certain purposes: Wyth v. Blackman, 1 Ves. Sr. 196. It is allowed by all, that if no children are in being, grandchildren would come in under the word children, and may be thereby described: 2 Vern. 106; s. c. Ambler 555. So grandchildren may take under the description of “ children” in a will: Royle v. Hamilton, 4 Ves. 437. In a trust for children, it was held that grandchildren were entitled to participate: In re Crawel’s Trust, 8 De G., McN. & Gord. 480.

In 4 Kent’s Com. 419, in discussing the question of advancement to a child, it is said: In New Jersey the statute uses the word issue, which is a word of more extensive import than the word child ; though children, as well as issue, may stand in a collective sense for grandchildren, when the justice or reason of the case requires it.. It would have been better, however, if the statutes on this subject had been explicit, and not have imposed upon courts the necessity of extending by construction and equity the meaning of the word child, so as to exclude a grandchild who should come unreasonably to claim his distributive share, when he had been sufficiently settled by advancement.

In construing a statute, the real intention when accurately ascertained, will always prevail over the literal sense of terms: 1 Kent’s Comm. 472. When the expression in a statute is special or particular, but the reason is general, the expression should be deemed general: Idem; People v. Utica Ins. Co., 15 Johns. 380; Whitney v. Whitney, 14 Mass. 92.

Under the Act of 1764, relating to the partition and valuation of the real estate of an intestate, providing that the eldest son or heir at law should have his election of taking the land at the valuation, yet it was held, where the eldest son had died before the intestate, that the eldest son of the deceased eldest son, had the same priority of election of taking the real estate of his intestate grandfather, that his father, if living, would have had: Walton v. Willis, 1 Dall. 351. So under the 22d section of the Act of 19th April 1794, where one died intestate, leaving sons and daughters, and also grandchildren, the children of the eldest son of the intestate, who had died in the lifetime of his father, it was held, where the words of the statute gave the priority of choice to the “ eldest son,” and was silent in regard to grandchildren, yet that they were within the equity of the act which intended to put them in the place of their father, if he had survived the intestate; and therefore they were permitted to take the real estate of the intestate in preference to the eldest son then living: Hersha v. Brenneman, 6 S. & R. 2.

The general doctrine unquestionably is, that an advancement is an irrevocable gift by a parent to a child, of the whole or a part of what it is supposed the child will be entitled to upon the death of the parent, who afterwards dies intestate. The question, however, recurs, who is a child within the meaning and spirit of the statute relating to advancements? In Hughes’ Appeal, 7 P. F. Smith 179, and in other cases there cited, it is held, that in the distribution of the grandfather’s estate, the grandchildren take subject to advancements made to their father, and to such debts due by him to the intestate, as were recoverable when the estate descended. The reason given is, that they take not paramount to their father, but through him by representation. This, however, must be understood as applying to the facts in those cases. That is, where the intestate shall leave descendants in different degrees of consanguinity to him, the more remote of them being the issue of a deceased child, grandchild, or other descendants, and not where he leaves grandchildren only. In the latter case they would take per capita.

The clear intent and design of the statutes are to equalize the property of the intestate among his children. Where one of his several children has died during his life, leaving an only child, who the intestate has advanced after the death of his father, it seems to us the whole reason of the statute compels us to hold it an advancement. To do otherwise would work injustice to the surviving children and defeat that equal distribution which the statute was designed to secure. We believe the true exposition of the statute to be, as against a surviving child of the intestate, that Abijah takes, not only subject to advancements made to his father, and to such debts due by him to the intestate as were recoverable when the estate descended, but also subject to advances made to himself after the death of his father, and to such debts due by him to his grandfather as were recoverable when the estate descended.

For purposes of distribution, the intestate should be held, after the death of his son, as standing in loco parentis towards Abijah, and all the principles flowing therefrom should be applied.

We think, therefore, the learned judge erred in confirming the second report of the auditor, and the case must go back to have distribution made upon the principles we have declared.

And now, to wit, July 2d 1873, decree reversed, and the court is directed to send the case back to an auditor to to restate the account.

Gyger’s Appeal.

The opinion just read in Eshleman’s Appeal, from the same decree, makes it unnecessary to consider all the errors assigned in this case.

The first assignment is the refusal to permit the appellant to testify in his own behalf. His object was to relieve himself from a portion of the claim of the estate of .the intestate against him. He sought to testify to transactions which occurred during the life of the decedent. That mutuality or equality did not then exist between the parties, which is necessary to permit a party to testify in his own behalf. The parties are not within the proviso to the first section of the Act of 15th April 1869. The appellant was therefore rightfully excluded: Karns v. Tanner, 16 P. F. Smith 297.

The second is to the amount allowed the accountant as commissions. We cannot establish any inflexible rule. Much may depend upon the circumstances attending the settlement of the particular estate. The auditor found that the administration of this estate “ appears to have been attended with the quantity of trouble, care and responsibility which the settlement of intestates’ estates ordinarily imposes.” He therefore allowed the usual commission. The court confirmed it. It is no larger than has frequently been allowed to executors and administrators. The general enhancement of values within the last twelve years must not be wholly ignored in determining the reasonableness of commissions. The auditor and the court below* with all the facts before them, having concurred in what were reasonable commissions, we discover no good reason for disturbing that conclusion.

The appeal is dismissed at the costs of the appellant.


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    The Farmers’ and Mechanics’ Bank of Shippensburg versus Lefever.
    1. In assumpsit the verdict was for the plaintiff; no. question was reserved; the court entered judgment non obstante veredicto. Held to be error, although the evidence may not in law have warranted the verdict.
    2. Whenever apoint is reserved the verdict should be taken subject to the opinion of the court on the reservation, that the record may show the ground on which the j udgment is based.
    3. It is improper practice, when the reserved points appear only in the bill of exceptions, and an exception is taken to the final judgment.
    4. The court below having without a reserved point entered judgment for the defendant non obstante veredicto, on the ground that in law the evidence did not warrant the verdict, on reversal, the Supreme Court, under the circumstances, instead of entering judgment on the verdict, sent the case back that the defendant might move for a new trial nunc pro tunc.

    May 12th 1873.
    Before Read, C. J., Agnew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1873, No. 47.
    This was an action of assumpsit, brought December 23d 1869, by the Farmers’ and Mechanics’ Bank of Shippensburg against David Lefever. The plaintiffs alleged as their cause of action that the defendant had instructed the plaintiffs to pay the checks of the firm of Grilson Smith & Co., who were doing business with the hank, notwithstanding that firm might have an overdrawn account, and that the defendant would pay the plaintiffs ; that subsequently the defendant countermanded this authority, but that at the time of the countermand Grilson Smith & Co. owed the bank $911.02. It was to recover this sum that this suit was brought.
    The plaintiffs gave evidence of a verbal undertaking by the defendant to pay Gilson Smith & Co.’s checks; and various settlements with him, in which he paid their over-drafts, &c.
    The defendant gave evidence for the purpose of showing that all the checks paid were charged to Gilson Smith & Co., and that the bank looked to them, in the first instance, for payment; and the defendant’s promise to pay the over-drafts was collateral to pay the debt of Gilson Smith & Co.
    The court, Junkin, P. J., charged * * * “ Should you find that Lefever did assume to become paymaster for Gilson Smith & Co., then you will further inquire whether the credit given to Smith & Co. was in fact given by the bank to Lefever’s undertaking and upon' his sole credit and responsibility, and in no degree upon the faith of Smith & Co. paying the overchecked accounts of that firm.
    “ The following statute was passed in Pennsylvania on the 26th April 1855, in these words : ‘ No action shall be brought whereby to charge any executor or administrator upon any promise to answer damages out of his own estate or whereby to charge the defendant upon any special promise to answer for the debt or default of another, unless the agreement upon which said action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged theiewith or some other person by him authorized.’ * * *
    “Now, an engagement is collateral if the person for whose use goods are furnished upon the defendant’s promise or guaranty be liable at all, though it were the chief inducement to supply the goods ; and all such undertakings must be in writing; and it is a question for you to determine, under the facts of this case, to whom the credit was given. From the very definition of a collateral promise it follows that there must be some one who owes the debt directly. * * *
    “But if you find such promise and undertaking was made, but the bank, in thus advancing this money on the checks of Smith & Co., looked to both Gilson Smith & Co. and Lefever for repayment, then the promise of Lefever would be collateral, and not being in writing, as required by the Statute of Frauds, as we have read to you, the plaintiff cannot recover. On these simple principles you will dispose of the case, and find such verdict as may accord with your convictions produced by the evidence.” * * *
    Both parties excepted to the charge, but no question was reserved by the court.
    The verdict was for the plaintiffs, for $1066.80.
    The defendant obtained a rule to show cause why judgment should not be entered for him non obstante veredicto.

    After argument, the court, Junkin, P. J., made the rule absolute, and directed judgment to be entered for the defendant non obstante veredicto. The judge, in the conclusion of his opinion, saying':—
    “ In no aspect of this case can Lefever be considered the primary debtor, or that his is the superior liability. The use made of the money by the original debtor cannot have the least weight in determining the question of the defendant’s liability. That Lefever made this assumption, and that plaintiff relied upon and advanced the money of the bank on the faith of said understanding, cannot be doubted. And whilst we regret the misfortune of the plaintiff that the evidence of the promise rests wholly in parol, we are constrained by imperative duty to say that this parol undertaking and promise by the defendant to the plaintiff is within the Statute of Frauds, and its execution forbidden, however much it may harm the plaintiff.”
    On the removal of the record to the Supreme Court, the plaintiffs assigned for error that:—
    The court erred in directing judgment to be entered non obstante veredicto, without “points being reserved,” “facts admitted,” or “ specially found by the jury.”

      W. S. Miller (with whom were J. A. Q. Me Orne, and J. M. Miller), for- plaintiffs in error. —
    To authorize a judgment non obstante veredicto, the facts must be admitted or found by the jury: Clark v. Wilder, 1 Casey 314; Irwin v. Wickersham, Id. 316; Wilson v. Steamboat Tuscarora, Id. 317; Amer. Oil Co. v. Forsyth, 12 Wright 291; Winchester v. Bennett, 4 P. F. Smith 513; Miller v. Hershey, 9 Id. 67; Wilde v. Trainor, Id. 439; Campbell v. O’Neill, 14 Id. 290.

      L. Todd (with whom was W. J?. Sadler), for defendant in error.
   The opinion of the court was delivered, July 2d 1873, by

Sharswood, J. —

This judgment must be reversed. To a declaration in assumpsit, the defendant pleaded the general issue. A jury was called, and on the 20th April 1872, a verdict was rendered in favor of the plaintiffs, for $1069.80. On the same day appears a rule to show cause why judgment should not be entered for the defendant non obstante veredicto, and on the 16th of July 1872, the opinion of the court was filed, and judgment entered for the defendant, notwithstanding the verdict. Upon what this judgment is grounded — where the only issue was one of fact, and had been found for the plaintiff — does not appear, except from the opinion of the learned president filed, that the evidence given, did not in law', warrant the verdict. This would have been a very sufficient reason for setting it aside and granting a new trial. If the same evidence was given on the second trial, and his opinion remained unchanged, he could have directed the jury to find for the defendant. Upon an exception by the plaintiffs, we could then, on a writ of error, have considered whether his charge was correct in point of law. But we have it not now before us. The plaintiffs, who have taken this writ of error, insist that the charge below was right in submitting the question to the jury, and have assigned no error except to the opinion of the court upon the rule and the judgment non obstante veredicto.

It has been attempted to support the judgment upon the notion that it may be regarded. as entered upon a reserved point. But the record shows no reservation. Properly, wherever there is a point or points reserved at the trial, the verdict should be taken subject to the opinion of the court, upon the reserved points. The record then shows the ground upon which the final judgment non obstante veredicto is based. But a loose practice has prevailed, and been sanctioned by this court, according to which it is considered sufficient that the reserved point or points should appear on the bill of exceptions, bringing, thereby, the facts on the record. We have here five bills of exceptions — three by the plaintiffs and two by the defendant — to the admission and rejection of evidence, but as there does not appear any reservation, of course there is no exception on that head, nor was there any exception to the final judgment, as is necessary, wherever there is a judgment entered upon a reserved point or points. No such exception was requisite here, for the judgment is without warrant and erroneous on its face. It is not necessary that we should consider the plaintiffs’ bills of exceptions, for they have not been assigned for error.

We might enter judgment on the verdict for the plaintiffs. But that would not be just to the defendant. It does not appear that the rule for judgment was taken at his instance. It is true, he ought to have made his motion for a new trial within the time prescribed by the rule. But it looks very much as if he had been precluded from this course by the action of the court. We remand the case for further proceedings, in order that the defendant may apply for leave to enter a motion for a rule for a new trial nunc pro tunc.

Judgment reversed and procedendo awarded.


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    Morgan versus Neville.
    1, Morgan owed Neville wages for labor contracted for and performed in Pennsylvania; Neville owed Shannon for goods sold to him in Pennsylvania, where the three were residents. Shannon attached the debt in Morgan’s hands, in Maryland, and served him ; Morgan gave Neville notice of the attachment. Shannon obtained against him as garnishee a judgment which he paid, the proceeding being without collusion between Shannon and Morgan. Held, that this was a defence in a suit by Neville against Morgan in Pennsylvania.
    2. Shannon, as a citizen of Pennsylvania, had a right to all the privileges of a citizen of Maryland, and could sue in that state.
    3. A garnishee in foreign attachment, to protect himself, must give notice to his own creditor.
    4. The act of Pennsylvania exempting wages from attachment is not part of the contract, and the act was not carried with the debt into the Maryland forum; the remedy there was by Maryland laws.

      5. The record of the Maryland justice did not show that all the preliminary steps of notice, &e., had been taken. Held, that the presumption was that all things had been done to authorize the entry of judgment.
    6. Steel v. Smith, 7 W. & S. 447, distinguished.
    May 13th 1873.
    Before Read, 0. J., Aunew, Sharswood, Williams and Mercur, JJ.
    Error to the Court of Common Pleas of Somerset county : Of May Term 1873, No. 69'.
    This case commenced before a justice of the peace by George Neville against William Morgan: the justice rendered judgment for the plaintiff, January 16th 1871, for $38.61; the defendant appealed to the Court of Common Pleas.
    On the trial, November 28th 1872, before Hall, P. J., the plaintiff’s claim was for wages as a laborer for the defendant on the “ Sand Patch Tunnel,” in Somerset county, Pennsylvania. He testified that in November 1870, he had worked 30 days at $2.50 per day ; — that the defendant had told him that Mr. Shannon had attached $38.42 of defendant's wages in Maryland.
    The defendant then gave in evidence the record of H. J. Flanagan, Esq., a justice of the peace in Allegheny county. Maryland.
    The record showed a suit, “ Michael Shannon v. George Neville. Plea of debt, $35.91. Attachment issued on the 14th of November. Returnable on the 5th of December, 1870. Directed to Dan’l Wineow, constable. Attached as per return in the hands of Wm. Morgan, contractor. 1870, December 6th, garnishee did not appear. 1870, December 6th, judgment of condemnation in favor of the plaintiff for $35.91, with interest till paid, and costs, $4.00, against ^7m. Morgan, as garnishee. Dec. 22d, 1870, made and satisfied. January 28th 1871. Received payment in full. Michael Shannon.”
    The record contained also the necessary affidavits required by the laws of Maryland before issuing process.
    The return to the attachment was :—
    “ I, D. Wineow, a constable of said county, do return and certify, that, in pursuance of the writ of attachment hereunto annexed, I did on the 14th day of November 1870, serve the said writ of attachment, by attaching the goods and chattels, rights and credits of George Neville, in the hands of William Morgan, and that I executed the said writ at the time aforesaid by giving notice to William Morgan and by making known to the said William Morgan.”
    Defendant also gave evidence that he gave notice to Neville of the attachment the next morning after it was served.
    The plaintiff gave evidence that at the time the work was done, the defendant Shannon and the plaintiff all lived at Sand Patch in Somerset county, and that the debt to Shannon was contracted at that place. The judge directed a verdict for the plaintiff, reserving the questions of the validity and effect of the record of the attachment.
    The jury found for the plaintiff for $43.03.
    The law of Maryland under which the proceedings in attachment were had is as follows :—
    “ Sect. 1. Every person, and every body corporate that has the right to become a plaintiff in any action or proceeding before any judicial tribunal in this state, shall have' the right to become a plaintiff in an attachment against a non-resident of this state, or against a person absconding.
    “ Sect. 2. Every person who doth not reside in this state, and every person who absconds, may be made a defendant in an attachment. * * *
    “ Sect. 4. No attachment shall issue (except as hereinafter mentioned) unless there be an affidavit that the debtor is boná fide indebted to the creditor in the sum of-, ov.er and above all discounts; and at the time of making the affidavit, the creditor shall produce the bond, account, or other evidences of the debt, by which the said debtor is so indebted; and shall also make affidavit that he knows, or is credibly informed and verily believes, that the said debtor is not a citizen of this state and that he doth not reside therein.
    “ Sect. 11. Any kind of property on credits belonging to the defendant, in the plaintiff’s own hands or in the hands of any one else, may be attached; and credits may be attached which shall not then be due.
    “ Sect. 12. Every attachment issued under the preceding sections shall contain a clause commanding the sheriff or other officer, at the time of executing the said attachment, to make known to each person in Avhose hands or possession the lands, tenements, goods, chattels and credits so attached, are to be and appear on the return of such attachment before the court out of which it issued, to show cause why such lands, &c., * * * should not be condemned and execution thereof had, &c. * * *
    “ Sect. 13. If neither the defendant nor the garnishee in whose hands the property or credits may be attached, shall appear at the return of the attachment, the court shall and may condemn the property and credits so attached, and award execution thereof.
    “Sect. 35. Any justice of the peace may issue an attachment against a non-resident or absconding debtor, where the sum claimed shall not exceed one hundred dollars; but no special pleading shall be required before a justice of peace.
    “ Sect. 36. No attachment of the Wages or hire of any laborer or employee in the hands of the employer, whether private individuals or bodies corporate, shall affect any wages or salary of the debtor, which are not actually due at the date of the attachment, and the sum of ten dollars of such wages or salary which may be due, shall be exempted from attachment, whether on warrant or on judgment.
    “ Sect. 37. Any judgment of condemnation against a garnishee and execution thereon, or payment by such garnishee, shall be sufficient, and pleadable in bar in any action brought against him by the defendant in the attachment for or concerning the property or credits so condemned. Such attachment shall be returnable before the justice who issued it on a day certain to be named therein, not less than twenty nor more than thirty days from the date of issuing it.”
    The court (Judge Hall) entered judgment on the verdict on the following opinion — * * *
    “By the Constitution of the United States, article 4, section 1, it is provided that £ full faith and credit shall be given in each state to the public acts, records and judicial proceedings of any other state.’ And an exemplication of the record of the proceedings before the Maryland justice, has been produced and offered in evidence. It is claimed that this Maryland judicial proceeding, and the payment of the W'ages thereon, is a complete bar to the plaintiff’s recovery in this case.
    “ We do not so regard the law. If Neville, the defendant in that proceeding, bad been in Allegheny county, Maryland, and had been personally served,'or had appeared and made defence, it is possible the position might be sustained. Nevertheless, even in that case there might be a question of jurisdiction. Is it not doubtful whether a Maryland judicial tribunal should entertain jurisdiction of a dispute between parties, all of whom are residents of Pennsylvania, who are temporarily in Maryland — perhaps but for a single day — and where there is no property belonging to the alleged debtor within the jurisdiction of the tribunal? The case would be that of a hungry non-resident creditor, seeking the jurisdiction for the sole purpose of bringing suit against a debtor casually within the limits of the state. This would be throwing upon the courts in Maryland the adjudication of controversies arising in Pennsylvania, between parties resident in Pennsylvania. Certainly the courts there were not organized for any such purpose, and might very properly decline to entertain jurisdiction.
    “ If, however, the Maryland tribunal exercised jurisdiction by virtue of the mere temporary sojourn of the Pennsylvania parties disputant within the borders of that state, it would not do so without notice to all the parties, and then it should, and no doubt would, respect, ex comitate, the law of the place of contract and domicil of the parties — a beneficent statute intended to protect a laborer, and his family dependent on him for support, from the grasp of a heartless creditor ready to exact the pound of flesh £ nominated in the bond.’

      “We know of no reason why the Maryland tribunal (if it entertained jurisdiction) might not properly pay respect to and enforce a Pennsylvania statute in no way contravening the public interest or policy of law, of the state of Maryland, between parties residents of Pennsylvania, litigating a contract made in Pennsylvania.
    “ But in the case at bar, the alleged debtor (now the plaintiff) was not domiciled in Maryland, nor present within the limits of the state, nor had he any property there. Jurisdiction of the person or property of an alien is founded on his or its presence. Without this, the exercise of jurisdiction is an act of usurpation, and the proceedings are to be treated as a nullity.”
    The defendant took a writ of error and assigned for error : entering judgment for the plaintiff on the judgment on the reserved points.

      A. H. Qoffroth, for plaintiff in error. —
    The judgment is to have the same credit in Pennsylvania as Maryland : Mills v. Duryee, 7 Cranch 481; Rogers v. Burns, 3 Casey 526; Baxley v. Linah, 4 Harris 241; Reber v. Wright, 18 P. F. Smith 477. The justice had jurisdiction of the property attached: Steel v. Smith, 7 W. & S. 446. The payment of a judgment by garnishee in foreign attachment in another state, is a good defence in a suit against him in Pennsylvania: Noble v. Thompson Oil Company, 19 P. F. Smith 415.

      A. J. Qolborn, for defendant in error. —
    A judgment in one state without notice to defendant is not entitled to faith and credit in another state: Benton v. Bergot, 10 S. & R. 242; Steel v. Smith, 7 W. & S. 446. The Maryland tribunal was bound by the law of the place of the contract.
   The opinion of the court was delivered, July 2d 1873, by

Agnew, J. —

This action in the court below, was for the wages of labor performed by George Neville for William Morgan, a contractor upon the Sand Patch Tunnel in Somerset county. Morgan set up a payment made by him as garnishee of Neville, in an attachment issued by a justice of the peace of Allegheny county, Maryland, in favor of one Michael Shannon, served on Morgan in Maryland, and judgment against him by default. All the parties were residents of Somerset county, Pennsylvania, but there was no evidence of collusion or combination between Shannon and Morgan, to evade the Pennsylvania statute as to the wages of labor, by going into Maryland for the purpose of having the attachment executed. We must, therefore, assume that the Maryland proceeding was boná fide. The court below held, that because Neville, the plaintiff below, was not in Maryland and was not served with notice, he was not affected by the judgment in the attachment, and that the Maryland court ouglit to have enforced the Pennsylvania Act, exempting the wages of labor from execution. In both of these respects the learned judge fell into error. Upon the first point, the judge seems to have misapplied the doctrine of Steel v. Smith, 7 W. & S. 447, which decided that a judgment in personam in a foreign attachment against a vessel, under the civil code of Louisiana, was not binding, and would not be enforced in Pennsylvania, and that the Louisiana court not having jurisdiction of the person of the defendant, the record was not within the protection of the 1st section of the Article of the Con-' stitution of the United States, requiring full faith and credit to be given in such state, to'the public acts, records and judicial proceedings of every other state. But Steel v. Smith concedes jurisdiction in the attachment over the property of the defendant within the state of Louisiana; and this is the only feature in that case applicable to this, the defendant below claiming credit only for the money paid by him under the Maryland attachment. There being no collusion, Shannon, though a citizen of Pennsylvania, had a right to sue out his attachment in Maryland. He falls within the words and spirit of the 1st clause of the 2d section of the 4th Article of the Constitution of the United States, that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states. One of these is the right to institute actions of any kind in the courts of another state: Corfield v. Coryell, 4 W. C. C. R. 380, 1. Shannon went into Maryland, a right he had under that clause, and there made the affidavit required by the Maryland statute, and sued out his attachment. So far then the magistrate had jurisdiction. The attachment was served personally on Morgan, the debtor of Ne-ville, when found in Maryland. A citizen of Maryland would have an undoubted right to serve his attachment on Morgan, had he found him there, in order to secure his debt against Neville; and he having this right, Shannon has the same right under the Constitution of the United States. The debt to Neville was therefore legally attached, and the jurisdiction of the Maryland justice’s court vested fully without notice of the writ to Neville. In foreign attachment (and this proceeding is in the nature of a foreign attachment) notice is not given to the defendant by service of the process, for the valid reason that he cannot be served, and service on his property or on his debtor is all that can be had, in the nature of the thing. The garnishee must give notice to his own creditor, if he would protect himself; and this he did in this instance, the next morning, as proved by himself and by Neville.

The Maryland tribunal having-jurisdiction, it was not error to disregard the Pennsylvania act, exempting the wages of labor from attachment in the hands of the employer. The Act of 15th April 1845, Pamph. L. 459, is a supplement to the act relating to executions, and the proviso in the 5th section has relation to the remedy for the collection of debts. 'It forms no part of the contract itself under which the labor was-performed, though the contract was subject to it, and was limited thereby, in this state, in the means of recovery after judgment for the debt. Not being part of the contract, the Pennsylvania statute was not imported with the debt into the Maryland forum, but the remedy there was regulated by the Maryland statute, which gave an exemption to the wages of labor of the sum of ten dollars only. Besides, how could the Pennsylvania act be known in the Maryland forum, without proof or pleading it? The garnishee made default and judgment was given without evidence and without a plea of the Pennsylvania act. It Avas an error then, to hold, that the Pennsylvania act exempted the debt from the attachment.

Though not noticed in the opinion of' the judge upon the reserved question, it is contended here, that the record of the judgment is defective in showing no judgment against the defendant or the garnishee, but only a judgment of condemnation against the property or debt. But the judgment is a judgment in rem, and therefore, against the property or debt, and according to the 13th section of the Maryland Code, Avhich says, if neither the defendant nor garnishee in whose hands the property or credits may be attached, shall appear, at the return-day of the attachment, the court may condemn the property and credits so attached, and award execution thereof. And by the 37th section, the judgment of condemnation is made pleadable in bar, in any after-action brought against the garnishee by the defendant.

It is also now objected, that it does not appear by the record, that the plaintiff gave the notice required by the 4th section, by setting up, at three or more of the public places in the district or ward, an affidavit and copy of claim and copy of the attachment. But the 42d section provides, if the defendant or garnishee shall not shoAV cause against the attachment, the justice may condemn the property, provided he is satisfied by the oath of the plaintiff or by other proof, that the notice required above has been given. As the proof is thus, by the statute, a mere preliminary to judgment, and not a return of process to appear in the record, but is heard at the trial, the presumption in favor of judicial acts, that they have been rightly done, comes to the aid of this proceeding. We cannot presume that the justice gave judgment contrary to the statute and to his duty, but must presume he was satisfied by the oath of the plaintiff or other proof, that the plaintiff had done all that was requisite to entitle him to judgment. The return to the attachment itself is full and complete, and made by the constable, the proper officer. This being a proceeding before a magistrate, a presumption in favor of the regularity of his proceeding is more necessary, and is strengthened by the 35th section of the Code, declaring that no special pleading shall be required before a justice of the peace. This carries a belief that Maryland law as well as our own, looks benignantly upon the proceedings before justices, whose want of knowledge of 'legal forms must often be their excuse for informalities.

Judgment reversed, and a venire facias de novo awarded.