author: Shauswood, C. J.

text:
    BUCKS COUNTY.
    January Term, 1882,
    No. 52.
    April 25th, 1882.

      In re H— T—.

    1. Though the Act of May 19th, 1879, 3?. L., 66, is very badly framed, it was the intention of the Legislature to provide that this Court should review the proceedings of the inferior Courts in striking attorneys from the rolls, in all cases, and should judge of the sufficiency of the cause.
    2. Upon proceedings for disbarment, upon a charge of a criminal offence, the Court is bound to consider the accused innocent after an acquittal by a jury.
    3. A temporary flight following an accusation of fornication, and of being accessory to the procurement of an abortion, causing the death of the subject, is not an offence of such a character as ought to be visited with the penalty of disbarment.
    4. Semble, that fornication is not an offence of that character.
    5. Where a lawyer suspected of a very grievous and infamous criminal offence, that of complicity in procuring an abortion, but of which he was afterward upon trial acquitted, requested the district attorney to give him time, that he might see the prosecutor and fix it up all right, it was not misbehavior in office for which he could be disbarred under section 73 of the Act of April 14th, 1834, P. L., 354.
    6. If it was an attempt to obstruct the due administration of justice it was an indictable offence, and the offender was entitled to a trial in due course of law.
    Before Sharswood, C. J.; Gordon, Paxson, Sterrett, and Green, JJ. Merc or and Trunkey, JJ., absent.
    Error to the Court of Common Pleas of Bucks County.

      In re the report of the members of the bar of Bucks County, and the order of the Court striking the name of II-T-from the roll of attorneys. At a meeting of the members of the bar of Bucks County, held December 2d, 1879, a report was made to the Court setting forth certain charges against H-T-, a member of that bar. The Court thereupon directed the report to be filed, and that a certified copy be served by the sheriff upon H- T-, and that permission be given the respondent to answer within ten days after service. The sheriff returned the order served “ by leaving a true and attested copy with an adult member of the family with which he last resided, and informing him of the contents thereof; and I return that the said II-T-could not be found in the county.”
    January 7th, 1880, the Court appointed a commissioner to take testimony, and report the same and his finding of facts, and a committee of the bar to prepare charges and specifications, and to conduct the examination. The committee presented a charge of “ criminal and unprofessional conduct unbecoming a citizen and member of the bar,” and the following specifications:
    “ 1. In this that the said H-T-, being at the time a member of the bar of Bucks County, did at divers times during the year 1879, prior to the 3d day of December of said year, commit fornication with one E- S-, a single woman, and a bastard child on the body of the said E-S-did beget.
    “ 2. In this, that, on or about the 29th day of November, a.d. 1879, the said E-S-died at the residence of her father .... in consequence of an abortion committed upon her, the said E-S-; and that the said II-T-did aid, counsel and advise the said E- S-to have such abortion performed, with intent to produce the miscarriage of the child with which the said E-• S-was pregnant, and of which the said H-T-was the father.
    “3. In this, that the said H-T-has become a fugitive from justice, having on the 29th day of November, a.d_ 1879, abandoned his usual place of abode and escaped from the jurisdiction of Bucks County, — a warrant for his arrest, charging the said H-T-with being an accessory before the facts in the commission of the said abortion, having issued on the 1st day of December, a.d. 1879.
    “ 4. In this, that the said H- T-, immediately before or immediately after the death of the said ÉS-, endeavored to compound his aforesaid criminal offence by offering the parents of the said E-S-the sum of $125 to keep the matter quiet.”
    The sheriff returned that he “ served the within charge, specifications, and notice on H-T-., Esq., by leaving a true and attested copy with an adult member of the family with whom he had resided in said county, and informing him of the contents thereof.”
    The commissioner, C. E. Wright, reported the facts to be, “ That Mr. T^-was in the habit of visiting Miss S-since the spring of 1879 ; that he went to her frequently; .....that he came at night, and was left alone with her until two o’clock in the morning ;.....that she was delivered of a male child some four or five months’ old;..... a man in Philadelphia had performed the operation...... The doctor states that the girl knew she was in a critical position several days before her death, and told him Twas the father of her child. She said the same during her sickness and before to’her mother, that T-was the father of her child. Miss S- also told her mother while sick that T-- had given her $25 because he did not want it to come out; that he would sooner run away and never come back...... Mrs. S- had an interview with T-. She told him her daughter was dead......She asked him why he had given her that money, saying but for that she would have been here yet. He said she ought to have gone to Ohio. Pie said further, that he had given her the $25, and she was to pay it back in sewing.
    “Mr. Shellenberger, at the time district attorney, met T-the day of the coroner’s inquest. He stated to him that he had had connection with the girl, and wanted him, Shellenberger, to protect .him. He wished the matter delayed long enough for him to send a messenger to the S-’s not to give him away. Mr. Shellenberger says he loaned T-$25 about two weeks before that time. He told Shellenberger that he gave that $25 to Miss S-, and, as witness recollected, stated that he gave it to her for that purpose, but of this the witness was not certain. Mr. Shellenberger says T-told him afterward, thatthe$25 had got him out of a tight place. . . A warrant, charging T-with being an accessory before the fact, in procuring the abortion, was placed in the hands of constable John K. Tomlinson, December 1st, 1879. He liad never been able to find him. T-had left Doylestown a few days before he got the warrant. Never has heard of his return, and has no information of his whereabouts. His personal effects were sold after he left, and his office premises passed into other hands.”
    The commissioner found that specifications 1, 2, and 3, were sustained by the evidence, and that specification 4 was not sustained, and he recommended that the name of IIT-be stricken from the roll of attorneys.
    August 11th, 1880, the Court adjudged “ that the within named H-T-be stricken from the roll of attorneys of the several courts of this county, and prohibited from hereafter practicing as such therein.”
    November 9th, 1880, H-T-presented a petition to the Court, setting forth that “ the alleged offences contained in the report of the bar were made the subject of inquiry by the grand jury of this county, at February Term, a.d. 1880, and said grand jury found bills embracing all matters and offences alleged in said report, and that thereafter this petitioner voluntarily came and demanded trial, and was arraigned and tried for said offences, at the September Court, a.d. 1880, to wit, on the 16th day of September, when he was declared innocent of all those offences alleged, by the verdict of the jury, duly impanelled,” and asking that the decree be vacated.
    November 13th, 1880, the Court granted a rule to show cause why the decree dismissing the petitioner from the bar should not be rescinded, making the committee formerly appointed respondents, and directing the commissioner to take testimony and report. A writ of error, taken out by HT-, to the Supreme Court was there quashed.
    A request made by him for the dismissal of the rule to show cause, so that his petition could be withdrawn, was refused.
    Before the commissioner a new specification was presented: “ Specification 5. In this, that the said H-T--, being at the time a member of the bar of Bucks County, after the death of E-S-, in consequence of an abortion, which said abortion the said T-was apprised the said S-was about to have committed, and when a judicial investigation as to the cause and manner of the death was about to take place, under the supervision of the district attorney of the county, J. Monroe Shellenberger, Esq., the said T-approached the said district attorney, upon the day of the hearing before tifie deputy coroner of the county, and stated to him, the said district attorney, that he, the said T-had had connection with that girl out there (meaning the said E-S-), and wanted him, the said district attorney, to protect him, the said T-, and further endeavored to induce the district attorney to delay judicial investigation, to enable him, the said T-, to send a messenger to the parents of the deceased girl, in order that he, the said T-, might post them, the said parents, in their testimony, so that they, the said parents, would not, in the language of the said T-, ‘give him, the said T-, away.’ To which request the said district attorney replied, that he could not do anything of the kind ; that he was there ready to start for the residence of the said S- as soon as the deputy coroner was ready. That this interview between the district attorney and the said T-occurred between four and five o’clock in the afternoon of the 29th day of November, 1879; that the same night the said T- disappeared, and remained without the jurisdiction of the Courts of Bucks County until about the month of August, 1880; that a warrant for the arrest of the said T-on the charge of aiding and abetting in procuring an abortion, issued on the first day of December, 1879.
    “ And it is charged that, upon the occasion of the interview with the 'district attorney, above mentioned, he, the said T-, endeavored to improperly influence the said sworn officer of the Commonwealth in the discharge of his official duty, and also to give an opportunity to practice upon witnesses about to be examined at the coroner’s investigation, to gain some unlawful advantage for himself, and to impede the due administration of justice.”
    The report and findings of the commissioner sufficiently appear in the opinion of the Court below, Watson, P. J., discussing the rule to show cause :
    “ The proceedings in this case originated in a communication made to the Court on the 3d of December, 1879, by a meeting of the members of the bar, averring, among other things, acts affecting the professional and moral standing of Mr. T-. The Court directed that the communication should be filed, that a copy of such parts of it as related to Mr. T.-, should be served upon him by the sheriff, and that he be permitted to file an answer thereto. On the 7th day of January, following, the sheriff returned that Mr. T-could not be found in the county, and that he had made the service by leaving a copy with an adult member of the family where he last resided, and informing him of its contents. No answer was filed by Mr. T-. The matters averred in the communication were, in the opinion of the Court, such as required investigation. They constituted criminal acts, and unprofessional conduct, such as, if true, rendered Mr. T-unworthy of membership in an honorable profession requiring the highest character for morality and integrity.
    “ One of the oldest and most experienced members of the bar was appointed commissioner to take testimony, and to report the same, and his findings of facts in relation to the matters alleged, to the Court, and. a committee of young members was also appointed to prepare charges and specifications of the matters generally averred, aud conduct the examination on behalf of the bar. The commissioner was directed to give notice of the time and place of the meeting, and to issue subpcenas for witnesses, to the parties.
    “ This course was adopted in accordance with the practice of the Court in previous like cases; it was similar to the proceedings in Dickens’s Case, 17 P. F. S., J69. It was also analogous to the practice of the Court of Xing’s Bench, where it is frequent to refer motions imputing misconduct of an attorney to a master, who reports to the Court; 3 Ch. Gen. R., 38.
    “ The committee submitted to the commissioner a general charge of criminal and unprofessional conduct, and four specifications thereof, substantially as follows:
    “ 1. Fornication with one E- S-, and begetting upon her a bastard child.
    “ 2. Aiding, counselling, and advising her to have an abortion produced upon her, which was done, and in consequence of -which she died.
    “ 3. Becoming a fugitive from justice.
    “ 4. Endeavoring to compound his criminal offence, by offering money to the parents of Miss S-, to keep the matter quiet.
    “ Notice of the order made by the Court, and of the time and place of the commissioner’s meeting, and of the charge and specifications, was served on Mr. T-by the sheriff in the manner of the service of the first order, he not being found in the county.
    “On the 7th of March, 1880, the commissioner presented his report and findings of facts, with the testimony taken before him, and the committee also reported the performance of their duties in the premises. The commissioner’s report embraces a clear and concise history of the case and concludes with finding that the first, second and third specifications are sustained by the evidence, and that the fourth is not sustained.
    “ The report was held under advisement until the June adjourned court, at which time it was, without further special order, again, laid over at the adjourned court. In the following August it was taken into consideration, and an order made dismissing Mr. T-from the bar.
    “ It is a part of the history of the proceedings known to the Court and to the members of the bar who were present, that at the time when this order was about to be pronounced, Mr. Lear and Mr. Yerkes stated to the Court that they were informed Mr. T-intended to return and stand his trial, on the indictments which had been found against him by the grand jury, and that they had been retained, or had been told they would be retained by a friend of his to defend him. They also said they were not counsel for him in the matter then under consideration. They suggested that the order about to be pronounced should be withheld until after his trial in the criminal cases, as he might be prejudiced therein by being disbarred. It was, however, after some discussion and consideration concluded both by them and by the Court that there was no danger of being thus prejudiced before the jury who would try him, and the order of the Court was made as intended.
    “ At that time' Mr. T- was absent from the county. A warrant for his arrest had been-placed in the hands of a constable on the 1st of December, 1879 ; he had left Doylestown a few days before. The constable had not been able to find him. Three indictments had been found by the grand jury, and were then pending against him. His whereabouts was unknown. His communications to the gentlemen about to be employed as counsel to defend him, were made, not directly, bub through a friend. There was abundant testimony before the commissioner to warrant and require his finding that Mr. T- was a fugitive from justice. In this connection it may be remarked that there is nothing developed in the subsequent history of the case to rebut the correctness of the finding.
    “Mr. T-said himself in his testimony before the commissioner on the hearing, that he left Doylestown on Saturday, the day the inquest on the body of Miss S-was held, the 29th of November, 1879, and was not here again until August, 1880 ; that he did not lock his office, but left; it as he usually did, went to Sellersville and next day to Philadelphia; knew before leaving of the coroner’s investigation; had had a conversation wúth Mi\ Bhellenberger, district attorney, about it; heard the result before he was out of bed, from a report in the morning papers, that he afterwards went to Kansas City, in Missouri; reached there in the-latter part of January; was there two months, but not continually; was in a good many places, stopped off. This is the testimony of Mr. T-himself, to show he was a fugitive from justice.
    “ A short time after the making of the order of disbarment, Mr. T-returned to the county, went before the justice who had issued the warrant for his arrest, and entered into recognizance to appear at the next sessions to answer the criminal charges. At the next September sessions he was tried on the indictment that had been found in his absence and was acquitted.
    “ At the adjourned court, on the 9th of November following, he presented a petition, asking that the order disbarring him should, for the reasons in the petition assigned, be immediately vacated by the Court. The Court declined to do this without further investigation or consideration, and held the petition under advisement until the 13th of the same month, when a rule was entered to show cause why the order should not be rescinded, in which rule the former committee of the bar were made respondents, and their powers and duties under their former appointment were renewed and continued.
    “The old commissioner was reappointed to take testimony in support of and in opposition to the rule, and to report the same with his conclusions and findings of facts, and also his opinion as to the propriety of granting the prayer of the petitioner. The intention of the Court was to reopen the whole case, and to give the respective parties full opportunitv to sustain or deny the matters originally averred against Mr. T-.
    “ At this point the proceedings were arrested by a writ of error from the Supreme Court, where the writ was after-wards quashed as having been prematurely sent out. On the 16th of March, 1881, after the record had been remitted from the Supreme Court, this Court again took the matter into consideration, and renewed and repeated the order made on the 13th of November, with the necessary modifications as to the time of report. The commissioner was directed to proceed promptly and to report as early as practicable.
    “ Mr. T-here asked leave to withdraw his petition for vacating the decree or order of the 9th of August, 1880, but as this, in the opinion of the Court, would tend to defeat the purpose of the original investigation, it was refused.
    “ The report of the commissioner was presented and filed on the 25th of April last. It was laid over for consideration, and was directed to be put on the argument list for the adjourned court in June. At that time the matter was taken up. It was fully argued by Mr. T-in persona, in his own behalf, and the views of the committee of the bar were also presented.
    “Mr. T-again asked to withdraw his petition for vacating the decree, and that the rule granted thereon be stricken off. This was again refused for the reasons before given; he also presented a petition asking that the President Judge of another district be called in to hear and decide the case, on the ground that the judge of this Court had advised and taken part in the proceedings, and was so prejudiced against him as to be unable to decide fairly and impartially on the subject. This was also refused, for the reason that the alleged objection was unfounded in fact, and that while the judge regarded the case as unpleasant, from the consideration and decision of which he would be glad to be relieved, yet the law cast the burden of hearing and deciding it upon him, and this, like other unpleasant duties, must be performed with fidelity; that there was nothing in the case giving him the right and privilege of calling upon another judge to perform the duty and assume the responsibility therein, which the law imposed upon him.
    . “ By the report of the commissioner it appears that Mr. T-- and the committee appeared before him and were fully heard. The committee presented a new specification under and in support of the previous general charge, which as condensed and stated in the report is as follows:
    “ That the said T- endeavored improperly to. influence a sworn officer of the Commonwealth in the discharge of his official duties, to gain an opportunity to practice upon witnesses about to be examined at a coroner’s investigation, to gain unlawful advantages for himself, and to impede the administration of justice.
    “ The commissioner finds, as he had previously found, the fourth specification not sustained. As to the first and second specifications, he finds them conclusively disproved by the verdicts in the criminal cases and not sustained. He affirms and repeats his finding, as to the third specification, that it is sustained by the evidence. His remarks in connection with the finding are worthy of repetition. He says: £ The subject-matter of the third specification, charging T-with being a fugitive from justice, was not embraced in the indictment, and passed upon in the Court of Quarter Sessions. The accusation that induced his flight was felony. Under the statute, procuring or attempting to procure abortion is made felony. An accessory before the fact is made punishable the same as the principal, and for such crime three bills of indictment were found against him by the grand inquest of the county, the 8d of February, 1880. Simultaneous with the return of the coroner’s inquisition, implicating the petitioner, he fled from the county. A few days subsequently a -warrant -was placed in the officer’s hands for his arrest. For months his whereabouts are not discovered. Finally, more than eight months after his departure and abandoment of home and business, he returns and recognizes for appearance at Court.
    “ The commissioner regards the case as one furnishing a successful effort to defeat the ends of justice. With three indictments impending, chargingh-im with felony, for months he eludes arrest. He avoids trial at the February and April sessions of Court. Even in a moral sense, it is damaging to the character of a profession, for ages and everywhere claiming to be honorable.
    “ As to the fifth specification, the commissioner reports as follows:
    “ £ This specification and charge rest on the testimony of Mr. Shellenberger.
    ££ £ It establishes in the clearest manner the allegations-made. When about to go with the coroner, he met Mr. T-. He was then acting in the capacity of district attorney. He says T- knew what he was about to do. When T-asked him if he was going out to S-s, he told him he was. T-told him he had had connection with that girl out there, and wished the district attorney would not go for half an hour or more; as the officer said he was ready to start at once, or as soon as the coroner was ready, T- besought him to delay a little while. Mr. Shellenberger said he could not do that, and the other ought not to ask it. Then T-said: “ I will tell you what to . do. Give me an opportunity to send a courier out there to post the parents of this girl not to give me away.”
    “ ‘ Mr. T--, in the same conversation, said to Mr. Shellenberger, the latter should protect him, and further he stated, if he (T-) could see the people (meaning the S-s) “ he could fix it up all right.”
    “ This is the evidence in brief that applies to the fifth specification and charge, and, in the opinion of the commissioner, fully sustains it. Though not an indictable offence, it was an improper and immoral proposition and solicitation. It was made by a lawyer, whose knowledge on the like subjects is supposed to be critical. Its object is apparent on its surface, and, if made to an officer of lax principles, might have defeated the proceedings in contemplation, to the manifest perversion of the course of justice. In this instance, the officer of the law did not lend himself to improper solicitation that the matter would be ‘ fixed up all right.’

      ‘“¥e may overlook the anxiety a charge so serious may excite in the mind, but the law and its appointed officers are not tó be corruptly approached. Here the victim of illicit intercourse was dead. The child and mother met the same fate. Excitement was awakened, and the agency of the officers of the law was invoked. The attempt of the man implicated was to frustrate the legal proceedings, to gain time to send his courier to post the parents, that he might not be given away. Such a proposition cannot be mistaken. It was a corrupt proposition, made to a sworn officer of the law, and, to the credit of that officer, he proceeded in the discharge of his duty.
    “In view of the uncontradicted testimony, the commissioner, therefore, finds the fact to be, so far as relates to the fifth specification and charge, ‘ that the said H-T--, at the time a member of the bar of Bucks County, on the 29th day of November, 1879, did attempt and endeavor to improperly influence J. Monroe Shellenberger, Esq., a sworn officer of the Commonwealth, to wit, district attorney of Bucks County,in the discharge of his official duties, and also to gain an opportunity to practice upon witnesses about to be examined at the coroner’s investigation, to give some unlawful advantage to himself, and to impede the due administration of justice. Your commissioner, therefore, as far as relates to the fifth specification and charge, finds that the same are sustained by the evidence.’
    “ In conclusion, he recommends that the rule to show cause be discharged. I have carefully read over the whole of the reported testimony taken before the commissioner, both in the original proceedings and on the reconsideration under the later reference, and 1 fully concur in his findings of facts thereon, and, as before remarked, if there was any doubt under the evidence on the original proceedings as to Mr. T- having been a fugitive from justice, that doubt has been removed by his own testimony on the rehearing. It is idle to deny that his purpose was to avoid arrest, when, on the very day of the coroner’s inquest, he suddenly left his office, his business and his home, and became, therefore, a wanderer, staying awhile at one place, and ‘stopping off’at another.
    “ In regard to the fifth specification, the testimony of Mr. T-differs somewhat from that of Mr. Shellenberger, but he admits the conversation took place between them, and that he requested Shellenberger to protect him, to see that his name was not brought into the affair, to delay long enough for him to get a friend to go out there and stay during the investigation, and see that they did not give him away. This testimony, while it varies the particulars and the expressions used, yet it shows of itself improper importunities to the officer, and an undue influence sought to be exerted upon him. It does not weaken the testimony of Mr. Shellenberger, or the conclusion the commissioner has drawn therefrom. The case, as it is now developed, presents two questions for consideration :
    “ 1. The regularity and validity of the decree of August 11th, 1880, dismissing Mr. T-from the bar.
    “ 2. What action should the Court take in the premises, as the ease now stands, in view of the evidence given since that decree was made.
    “ It is to be remarked that Mr. T--’s petition, upon which the rehearing was ordered, did not ask merely that he should be restored to the bar, but was a direct attack upon the validity of the decree dismissing him, and it asked that the sarnq should be immediately and absolutely vacated. This could only be done on the ground that it had been improperly and imprudently made. A very reasonable provision, it was thought, had been made to give Mr. T-actual notice of the charges and proceedings against him. He was notified in the same manner as is directed by law for the service of a summons in a personal action. If he was a resident of the county at the time, this was enough; but he was personally absent, and the commissioner finds he was a fugitive from justice. An important question is thus presented ; one, upon which I have not found any precedent or decision to guide me, to wit: what power has a Court to dismiss an attorney from the bar, who has been charged with the commission of a crime, and has become a fugitive from justice, in his absence? And how is the power to be-exercised? Surely, the power must exist. The offender has fled, and voluntarily placed himself beyond the reach of personal notice. If exercised at all, it must necessarily be in his absence. To say the alleged offender must have personal notice is to deny the exercise of the power. If he can not be proceeded against in his absence, then the offender, by successfully avoiding arrest, and remaining away until death has removed the witnesses to his guilt, or time has dulled their memories,-'may safely return, and, defying alike the Court and his outraged fellows at the bar, may resume the practice of an honorable profession he has disgraced. Perhaps, too, even during his absence in some secure retreat, he may possess the ability to exercise in part the powers and privileges of an attorney of the Court. The end to be attained by removal from the bar is not punishment, but protection : Per Gibson, C. J., Austin’s Case, 5 B., 191. One who voluntarily flies from an accusation of crime, does not thereby confess his guilt, but he does show his unfitness to continue in practice as a member of the bar in the county whence he fled. If he remains and faces his accusers, it would be manifestly improper to strike him from the bar in advance of his trial and conviction on the criminal charge. But when he becomes a fugitive, and successfully avoids arrest, he cannot be thus tried and convicted. The Court may be subjected to the disgrace of having a criminal officer, and the members of the bar a criminal associate-member, unless the same can be avoided by a remedy in his absence. The application of a remedy necessarily and properly includes an inquiry into the facts and circumstances of his alleged offending, but the finding and decree do not subject him to any punishment further than is necessary for the purpose of protection against future wrong-doing, nor do they constitute even presumptive evidence of his guilt in a trial for the of-fence at another time, and in another forum. I am of opinion, therefore, that the Court had the power to proceed against Mr. T-, and to make the decree dismissing him from the bar in his absence. But, if the fugitive returns, he should then be allowed to meet and, if possible, refute the accusation against him. If he does so successfully, he should be promptly restored to the bar. To give an opportunity, on the one hand, to Mr. T-for defence, and, on the other, to his accusers to sustain their charges, has been the endeavor of the Court in the action taken upon his petition.' The case was recommitted to the commissioner, with power to reopen it from the beginning, so that both sides might be fully heard. Both sides appeared before him, and both submitted all the evidence they had to offer. The commissioner has patiently and laboriously investigated the case. He has taken and submitted a large amount of testimony. He has spent much time in the discharge of his duties. lie has presented a clear, intelligent and methodical report. The testimony sustains his findings of fact. To both the commissioner and the committee, the case must necessarily have been an unpleasant one, and an unwelcome one. They have given their services to it from a sense of duty to the Court, to the bar, to the community, and to themselves, without hope or expectation of reward, and, I am confident, without malice or ill-will to Mr. T-. While holding, as I do, that the decree of the 11th of August was valid and proper when made, yet in one particular I find myself unable to agree with the commissioner in his conclusions. Viewing the proceedings subsequent to the presentation of Mr. T-’s petition, as a rehearing of the case, I would give to him the benefit of all presumptions to be drawn from his voluntary return and submission to trial in the criminal court. The trial resulted in his acquittal. They judicially established his innocence of the charges from which he fled. His flight was of itself an offence and a mistake, yet it was such as innocent men sometimes commit. I think that, after his voluntary return and hi3 acquittal, it was one for which he ought to be pardoned and released from further disability. It showed not his guilt so much as it showed his weakness, and weakness alone does not render a lawyer liable to be dismissed from the bar. If this were all there was against him, I should direct his restoration. But this is not all. The fifth specification charges the commission of acts not embraced in the first four, previously passed upon by the commissioner. It avers acts, which do not constitute a criminal offence, but which are of such a nature as is dangerous to the community, subversive of justice, and totally unworthy a member of the bar. ‘ Brutality, drunkenness, the whole circle of infamous crimes,’ are mentioned by C. J. Gibson, in Austin’s Case, as sufficient cause for expulsion from the bar. In Dickens’s Case, 17 P. F. S., 169, an attempt to make an opposing attorney drunk, so as to obtain an advantage over him in the trial of a cause, was held to be good ground for expulsion. Justice Agnew, in delivering the opinion of the Court in the ease, says this is a wicked act; one, which strikes directly at the due administration of justice; that the man who would do this thing is unfit to practice in a court where justice is administered, and should be expelled from the bar, or at least suspended until he has shown by good conduct that his offence is thoroughly purged. Here the attempt was not to gain, advantage over an opponent by sharp practice, but it was an attempt much more serious, an attempttocorru.pt a public officer, to induce him to disregard his duties in order that he, who impliedly at least confesses himself an offender, might escape exposure and disgrace, and the danger which exposure would bring.
    “The commissioner has found this specification of the charge true. His findings are founded on clear and sufficient evidence. The investigation of it was embraced in the power given him by the Court in the submission to him. Mr. ■ — — was fully heard before him, and had every opportunity to make his defence. He has also been fully heard by the Court in objection to the proceeding and the report. I have attentively listened to a long and earnest argument from him in person in opposition to the proceedings and in his own defence. He has failed to convince rue that_there is any doubt as to his offending, or that there is error in the proceedings. I am satisfied that the proceedings have been regularly conducted, and with a careful regard to his rights; that the decree of the 11th of August was valid, and was a proper one when made, and should not be set aside for irregularity ; that under the subsequent proceedings it was incumbent on him to produce evidence, if he wished to be relieved from that decree ; that the records of his subsequent trial and acquittal were enough to induce a change in the findings as to the first and second specifications, and that the offences in the third specification should be condoned.
    “I am also of the opinion that the finding under the fifth specification is correct, and that the offence is such as to require Mr. T-’s dismissal from the bar, and a sufficient r, ason to forbid the making absolute of the rule to show cause why the former order to that effect should not be vacated.
    “ The rule to show cause granted on his petition to vacate is therefore dismissed, and the order dismissing him from the bar is hereby affirmed and renewed.
    “ The Court directs that the costs accruing in the proceedings as taxed aud reported by the commissioner, and also the prothonotary’s costs 'in the proceedings in this court, be paid by the county.”
    The respondent then took out a writ of error, assigning twenty errors, covering generally and specifically each step in the proceedings.
    H-T-, plaintiff in error, in propria persona.

    The act of Assembly only provides removal or suspension for misbehavior in office. The matters averred in this proceeding clearly do not come within the duties of professional life. The Court below in entertaining the report, and by their orders, were without precedent in any English or American court.
    The report should not have been entertained without affidavit: Ex parte Burr, 9 Wheaton, 529; Saxton’s Case, 11 Paige, 526; Peterson’s Case, 3 Paige, 510 ; In re Brewster, 12 Hun., 109'; Walker v. Commonwealth, 8 Bush, 86 ; Turner’s Case, 2 Metcalfe (Ky.), 619; Balsbaugh v. Eraser, 7 Harris, 99; State v. Kirk, 12 Ela., 278.
    There should have first been trial and conviction. It is not in the province of the Court to set aside the legal*remedies and punish a lawyer for what he did as a layman: Bacon’s Abridgment, title Attorney, H.; In re-, 3 Neville & Perry, 389 ; In re-, 5 Barn. <fc Ad., 1088: In re-, 2 Halstead, 163; In re Hirst et al., 9 Phila., 216 ; State v. Holding, 1 McCord, 379; Commonwealth v. Newton, 1 Grant, 453; Ex parte Steinman, 9 W., N. C., 145 ; State v. Lobinsón, 26 Texas, 367.
    There should have been service of a copy or notice of the charges and specifications: Bradley v. Fisher, 13 Wall., 355; Turner’s Case, 2 Metcalfe, 619; Peyton’s Appeal, 12 Kansas, 406 ; Turner’s Case, 1 Col., 23.
    Before his name was stricken from the roll, there should have been a rule to show cause: Bacon’s Abridgment, vol. i., 316 ; Beene v. State, 22 Ark., 149; In re Percy, 9 Tiffany, 651. In re Peterson, 3 Paige, 510 ; Anon., 22 Wendell, 656.
    The matters charged were not within the Act of April 14th, 1834. Misbehavior can only be held to mean violation of his official oath. The matters alléged affected him only as a citizen: Dickens’s Case, 17 P. F. Smith, 169; Noyes’s Case, 68 III, 151; In re Knight, 1 Bing., 142; Baker v. Commonwealth, 10 Bush., 592; In re Woolley, 11 Bush., 95 ; In re Lord, 2 Scott, 131.
    The decree should state the cause of expulsion: Perry v. State, 3 Greene, 550; States. Watkins, 3 Missouri, 337; Fisher’s Case, 6 Leigh, 626.
    The fifth specification could not be added, because proceedings of this character are not amendable: State v. Kirke, 12 Fla., 278; In re Monckton, 1 Moore, P. C., 455; Commonwealth v. Newton, 1 Grant, 453; People v. Goodrich, 79 111., 148.
    Nothing appeared upon the record which, under the law and the facts, justified the severe punishment imposed upon the plaintiff by the Court below, involving not only disgrace but loss of practice, and the deprivation of his office as attorney for life. '
    May 8th, 1882.

       I think the old practice of withholding the names in such applications a good one, and I hope to see it observed in future. Erle, C. J., In re — , 98 E. C. L. R., 894.

   — The opinion of the Court was delivered by

Shauswood, C. J.

This case is before us by writ of error, under the Act of May 19th, 1879, Pamphlet L., 66. That act is very badly framed, and appears to confine the remedy it provides to proceedings against any attorney of said Court “for unprofessional conduct as an officer of the Court.” No doubt, attorneys may be disbarred for other causes than unprofessional conduct as an officer. Thus, if convicted in due course of law of any offence of the species crimen falsi, the Court would have the right to strike such convict from the roll of attorneys. We do not doubt that it was the intention of the Legislature to provide that this Court should review the proceedings of the inferior courts in striking attorneys from the roll in all cases, and to judge of the sufficiency of the cause. In the case before us, the plaintiff in error was arraigned on four specifications. In regard to the most important of them, it is enough to say that he has been tried and acquitted. "We are bound to consider him as innocent. If so, his temporary flight is not of such a character as ought to be visited with so heavy a penalty as disbarment. Nor is the offence of fornication of that character, even supposing that the Court below were competent to try him summarily. We come then to the fifth specification, which seems to have been subsequently added. If that showed an offence, an attempt to obstruct the due administration of justice, it was indictable, and the plaintiff in error was entitled to a trial in due course of law. It was not by any possible construction such misbehavior in his office of attorney as gave the Court summary power to suspend or remove him from office under the 73d section of the Act of April 14th, 1834, Pamphlet L., 354. The learned Court below seems to have thought that it was not indictable, but that it was an “ improper and immoral proposition and solicitation,” and that it was made by a lawyer whose knowledge on the like subjects is supposed to be critical. But how was it misbehavior in his office as attorney? Merely discreditable conduct as an individual, outside of his profession, was held in Dickens’s Case, 17 P.E. Smith, 169, not to give the Court jurisdiction. The worst that can be made of the conduct charged in the fifth specification is, that, being suspected of a very grievous and infamous criminal offence, that of complicity in procuring an abortion, he requested the district attorney to give him time that he might' see the prosecutor and fix it up right. We are not to forget that of this alleged crime he has since been found “ not guilty.” Even if conscious of innocence, to make such a request of the district attorney was no doubt improper. Yet some excuse certainly may be found for a young man under such circumstances. But where is the misbehavior in office? We do not see that the Court had jurisdiction under the fifth specification.

This young man has had a severe lesson, and he may yet, hereafter, redeem himself. He argued his case in propria persona, and in the course of it we had occasion to notice that, though the record did not show that he had been served with a copy of the fifth specification, of which defect he might have availed himself, he declined to take advantage of it, but frankly admitted service of a copy.

We need not say that this regard for truth produced a very favorable impression on the Court.

Order of the Court below reversed, and it is ordered that H-T-be restored to the bar, and that all costs, chai’ges, and expenses of the proceedings be paid by the County of Bucks.


source: Caselaw Access Project

author: — Per Curiam:

license: Public Domain

text:
    CENTRE COUNTY.
    January Term, 1882,
    No. 181.
    February 13th, 1882.
    Kunes versus Spangler.
    1. An assignment of error, in violation of tbe rule of Court, which provides that, “ when the error assigned is to the charge of the Court, the part of the charge referred to must be quoted totidem verbis in the specification,” will be disregarded, and held the same as none.
    2. Semble, that instructions as to the measure of damage, which were not followed by the jury, and which consequently did no harm to the plaintiff in error, are not sufficient grounds upon which to reverse a judgment.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Centre County.

    Case by Lucinda Spangler against Samuel H. Kunes, to recover damages for an alleged nuisance.
    On the trial in the Court below, before Mayer, P. J., the plaintiff gave evidence as follows:
    The plaintiff was the owner of a house and lot in Eagle-ville, Centre County, Pa. On this property was a well of water fifty-five feet deep. The water was of good quality, and large in quantity, and was used for family purposes. It had been in use for at least twenty-nine years, and there was no other well on the premises. Between the plaintiff’s and defendant’s properties was a road twenty-five and a half feet wide. The defendant kept a couple of horses and four or five cows, and he piled his manure on the other side of the road, right opposite to the well. The manure pile was on higher ground than the well, and the water from it naturally drained to the well. It was very offensive. For the last six or seven years the water of the well had been spoiled with manure-water. After defendant put his manure-yard there plaintiff' could not use the water of the well. She had to carry water from her neighbors. The water of the well smelled of manure. There was no other water that could flow into the well that might affect it in a similar way. A witness had seen manure-wash run very close to the well from defendant’s stable. To dig a well sixty feet deep would cost sixty dollars.
    There was much testimony for the plaintiff', but the above covers the material portions, and there was a great deal of testimony on the part of the defendant offered to show that it was impossible for plaintiff’s well to be affected by the defendant’s manure pile.
    The Court charged the jury, inter alia:

    “ The first question, then, gentlemen of the jury, for you to determine under all of the evidence is, whether this water was really corrupted ; if not, then you can stop there and render a verdict for the defendant; but if you determine it affirmatively, then you must determine under all of the evidence in the case whether it was caused by the manure water from the barnyard of the defendant, or by some other act of the defendant, either done by himself or authorized and directed to be done by him. If you find from the evidence that the water of this well is in an impure condition and unfit for use, but it was not caused by any act of this defendant, then your verdict should be for the defendant, because there would be no damages for which he could be held responsible. But if you determine that the water in this well was polluted, and it was made so by something done by this defendant, then you must ascertain what amount of damages the plaintiff has sustained by reason of this injury. You must take into consideration all the evidence bearing upon this question; what inconvenience has she been put to by being deprived of the use of the water from this well. You have heard the testimony of the witnesses bearing on the question of damages. And we say to you that, in our opinion, some of the witnesses have placed the damages at rather an exorbitant figure. We think the proper measure of damages is, what would it cost to put another well like this one upon her premises? We think that would be a proper and fair rule to go by in arriving at the amount of damages in this case.”
    December 9th, 1881. Verdict for the plaintiff for $92.08, upon which judgment was subsequently entered.
    The defendant then took out a writ of error, assigning errors as follows:
    “ First. The Court erred in refusing to instruct the jury at the close of the plaintiff’s testimony, as requested by defendant, that the plaintiff’ had shown nothing to which the defendant was bound to respond.
    “Second. The Court erred in submitting to the jury for their finding a question concerning which there was no evidence anywhere in the cause.
    “ Third. The Court erred in their instructions to the jury as to the measure of damages under the facts in this ease.”

      James A. Beaver and B>. Ii. Hastings, for plaintiff in error.

      A. O. Hurst for defendant in error.
    February 27th, 1882.
   — Per Curiam:

The assignments of error are not in conformity to our rules. We think, however, the evidence was ample to justify the Court in submitting the case to the jury. Without considering the instructions as to the measui’e of damages, it is plain that the jury did not follow it, and there was no harm done to the plaintiff in error. The assignment of error to that part of the charge is in direct violation of the rule of Court that, “when the error assigned is to the charge of the Court, the part of the charge referred to must be quoted totidem verbis in the specification.” “Any assignment of error not according to this will be held the same as none:" Criswell v. Altemus, 8 Harris, 124.

Judgment affirmed.


author: Per Curiam:

text:
    CHESTER COUNTY.
    January Term, 1882,
    No. 54.
    February 6th, 1882.
    Appeal of Lavina R. Hannum.
    1. Where an administrator sold real estate of the decedent under an order of the Orphans’ Court for the payment of debts, and without actual fraud himself became the purchaser in the name of a third person, and the sale was confirmed. it was not error for the Court to open the order of confirmation and set aside the sale at the instance of a lien creditor of the decedent, the rights of other persons not being prejudiced, though the amount of the proceeds of the sale was sufficient to pay the creditors lien.
    2. Such creditor is not estopped by the fact that he has brought suit against the administrator and his sureties on the bond provided for in the order of sale.
    3. Semble, that one of the sureties on the bond who held a mortgage on the real estate given by the decedent, but who, after the sale, took a mortgage, with knowledge of the facts, from the administrator individually, on the same real estate in settlement of the debt, had confirmed the sale and could not object to it.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Appeal of Lavina R. Hannum from the decree of the Orphans’ Court of Chester County, in-the matter of the estate of Sarah J. Worth, deceased.
    The auditor in the Court below, A. P. Reid, reported the facts substantially as follow's:
    Sarah J. Worth died April 8th, 1877, intestate, leaving three children, — Henry M. Worth, Franklin J. Worth, and Rebecca J. Hiddleson, and seised of certain real estate in the borough of West Chester. Upon this real estate were three liens, in the following order: A mortgage to the West Chester Building and Loan Association, dated April 5th, 1875, to secure the payment of $1000 in ten years, with interest, and monthly contributions of $5 on five shares of stock, owned by the decedent, and fines; a mortgage to J. Llewellyn Meredith, dated April 5th, 1875, payable in five years, which had been reduced, to $1000; and a judgment for $884.19, payable to the children of the decedent in equal shares. Henry M. Worth took out letters of administration May 7th, 1877. There was no personalty, and November 19th, 1877, the Orphans’ Court made a decree authorizing the administrator to sell the above-mentioned real estate for the payment of the debts of the decedent, upon his filing a bond in $5600, with William H. Hodgson and J. Llewellyn Meredith as sureties. The bond was filed, and the administrator made return to the order of sale that he had made sale of the property to William II. Hodgson for $2300. The sale was confirmed by the Court. The administrator by deed, dated April 1st, 1878, but not recorded until' August 10th, 1880, conveyed the premises to William II. Hodgson. Hodgson was not at the sale, and at the time knew nothing about it. Before the sale of the property, it was supposed it would not sell for enough to cover the liens, and the administrator, under the advice of counsel, bought it in the name of Hodgson, with the intention of creating new liens in favor of the lien creditors, and holding the property until a sale to better advantage could be made. His sister, Rebecca J. Hiddleson, was consulted about it before the sale was made, and was informed that it had taken place, and that he was the purchaser. He then filed an account, charging himself $2348, the amount of the sale, and $48 in rent collected, and claiming credit for, inter alia:

      ~W. C. B. and L. Association, judgment and interest, . $ 700 50
    Eebecca J. Hiddleson et al., judgment and interest,. . 235 18
    J. L. Meredith, judgment and interest, .... 1050 00
    This account was confirmed. After the filing of the account, Worth collected the rents of the property, and about April 1st, 1880, occupied it himself. William H. Hodgson and wife by deed, dated August 9th, 1880, and recorded August 10th, 1880, conveyed the premises to Henry M. Worth, who, November 16th, 1880, executed a mortgage to J. Llewellyn Meredith to secure the payment of $1000 and interest from May 1st, 1880, in settlement of the mortgage he had previously held. The other lien creditors were not paid. The auditor found that in this transaction no actual fraud was meditated. Nothing was said or done to deter bidders at the sale, and the property brought a fair price and as much as it would be likely to bring if sold again. Meredith did not know of the facts attending the sale until some time in August, 1880. A judgment was entered January 4th, 1881, against Worth in favor of Lavina E. Hannum for $700. Other judgments were entered against him, and on the 6th of January 1881, he made an assignment for the benefit of creditors.
    January 24th, 1881, J. L. Meredith filed a petition, under which the present contention arises, setting forth that Worth “fraudulently and unlawfully became the purchaser of said real estate himself;” and “falsely made return that he had sold the same to Hodgson, and that the Court, being deceived by the said administrator, and without knowledge of his fraud, confirmed the sale; that no consideration was paid Hodgson upon said transfer of title, and that the same was wholly collusive and fraudulent;” that none of the credits claimed in the account filed had been paid ; that Worth was insolvent; that these frauds had only come to the knowledge of the petitioner in the latter part of December, 1880. He asked to have the decree confirming the sale to Hodgson and the decree confirming the account opened, stricken off and set aside, and the administrator removed.
    Answers were filed by Lavina E. Hannum, and others.
    On March 15th, 1881, The West Chester Building and Loan Association presented their petition, asking leave to join with Meredith as a party complainant, which was granted.
    There was uncontradicted evidence that, February 10 th, 1881, the association brought suit on the $5600 bond against the principal and sureties, and that they filed an affidavit of defence.
    The auditor found that “ The Building Association has done nothing that would prejudice their right, except to. permit the administrator to have the stock transferred to himself. This, of course, was subject to the Association’s rights as collateral assignee, and was without any knowledge of the facts. It was confirmatory of nothing.'
    The auditor reported that Meredith, having full knowledge of the facts, and having with deliberation taken a new security, had elected to confirm the purchase and could not object to it, and that the sale having produced ample funds to pay both him and the Building Association, their debts were in effect paid, and that only the heirs and unsatisfied creditors could ask to have the sale set aside. He further reported that the prayer for striking off the decree.confirming the sale ought not to be granted, and that the prayer for striking off the decree confirming the account should be granted, and that the items of credit for claims unpaid should be stricken out. To this report Mei’edith and the Building and Loan Association filed exceptions.
    The Court, Fcjtiiey, P. J., filed the following opinion:
    “ It is a well-settled principle of law that no trustee,' or person acting in a- fiduciary character, can become a purchaser at his own sale, either directly or indirectly, or acquire an interest in the trust estate, without the consent of those for whose benefit he has consented to act, or of the Court having jurisdiction of the trust; such a purchase, however, is not absolutely void, but voidable at the election of the cestui que trust, or those beneficially interested in the estate, so that the trustee takes the property, subject to the power of disaffirmance by lien creditors, or others interested: Fisk v. Sarber, 6 W. & S., 18; Chronister v. Bushey, 7 W. & S., 152 ; Beeson v. Beeson, 9 Barr, 279 ; Pennock’s ApSeal, 2 Harris, 446 ; Chorpenning’s Appeal, 8 Casey, 315 ; Istate of John C. Hallman, 1 Chester Co. R., 141.
    “ The real estate in question was purchased for the administrator át his own sale, and return made to Court that the property was sold to William H. Hodgson, and the sale confirmed. Mr. Hodgson was entirely ignorant at the time of the fact that the property was returned as sold to him; he had not attended the sale, or authorized his name to be used. No further action was had with regard to perfecting the title by the making of deeds for about two and a half years, and until August, 1880, some five months before the commencement of these proceedings, during all which time neither the sureties of the administrator nor the lien-creditors (except a sister of the administrator) appear to have had any knowledge that the purchase had been made by the administrator. Under these circumstances, had the Court been informed of the facts when they came to the knowledge of the sureties, we would, at their instance, without more, have stricken off the confirmation of the sale. They became sureties for the faithful appropriation by the administrator of the proceeds of the sale. Their suretyship contemplated a sale to some one other than the administrator, and the receipt of purchase-money, for the faithful appropriation of which they became responsible. It did not contemplate a responsibility for moneys to be raised by the administrator from his own resources; hence, they had standing to ask the Court to interfere in their behalf. It appears, however, that, after they became aware of the state of the title, one of them, Hodgson, to whom the sale had been confirmed, conveyed the land to the administrator individually, and the other, Meredith, took a new mortgage from him for a debt, secured by mortgage of the decedent. The auditor finds that Meredith, the surety who petitions the Court for relief, by this action confirmed the purchase, so far as he is concerned, and cannot now object to it. We are not prepared to say that he is in error, although it is not necessary to express an'opinion upon that point. The application is united in by the West Chester Building and Loan Association, a mortgage-creditor of the decedent, and they ask that the confirmation of this sale may be stricken off, so that the lien of their mortgage may be preserved until the property is properly sold, and the purchase-moneys that may be realized therefrom are in the hands of the administrator. This creditor is undoubtedly a party having an interest in the sale of the land, and competent to make this application: Fisk v. Sarber, Pennodk’s Appeal, supra.

    “ It is objected that, as the price bid for the land by the administrator is sufficient to cover their liens, they have no standing, but must resort to the sureties of the administrator, he being insolvent, to obtain payment of it. Had the sale been a bona fide one, this position would probably have been correct, but should the Court, under the circumstances, compel them to loose their hold on the land and look to the sureties alone, and take their chances of recovering their money from them ? We cannot assure them that they would be successful in this resort. It appears from the report of the auditor that they have brought suit against the sureties, whc have filed an affidavit of defence, and the case awaits the determination of this proceeding. As the sale is voidable, and as the Building Association, as the auditor finds, have done nothing to prejudice their rights, and as the title, is still in the administrator, we are of opinion they are in a position to ask the interference of the court, and that the relief prayed for should be granted. That the Court has power to grant such relief we think is clear: George’s Appeal, 2 Jones, 260 ; Sbollenberger’s Appeal, 9 Harris, 387; Dundas’s Appeal, 14 P. F. S., 325.
    “The rights of no one will be prejudiced thereby. Mrs. Hiddleson, one of the lien creditors, who by the sale as made would receive a small amount on her judgment, was cognizant of the purchase by the administrator, and is affected with knowledge that he had no authority to thus purchase, and she cannot complain that the sale is not sustained. She will occupy the same position as a lien-creditor, which she did before the sale.
    “ The judgment-creditors of the administrator, as an individual, and his assignee for benefit of creditors, have no such interests as will prevent the interposition of the Court. Their rights rise no higher than those of their creditor, as against debts owing by the decedent: Sheetz v. Marks, 2 Pearson, 302, and cases there cited.
    “ The rights of purchasers will not be affected, as the title still remains in the administrator.
    “ That the sureties of the administrator will be relieved from responsibility we do not, under the circumstances, think inequitable. This case is an illustration of the unwisdom of trustees purchasing at their own sales, unless they have the permission of the Court, or the consent of all parties interested as owners or beneficiaries.”
    The Court, therefore, ordered :
    1. That the decree confirming the sale be opened, and the confirmation of the sale be stricken off, and the sale be set aside.
    2. That the decree of the Court, confirming the account of the administrator, be opened, and the account be corrected by striking out the item on the debit side, charging himself with $2300, purchase-money of the real estate, and "by striking out the items of credit, not paid by him, including the Meredith judgment for $1050, and his compensation.
    3. That the letters of administration, granted to H. M. Worth, be vacated, and he be removed.
    Lavina R. Hannum then appealed, assigning as errors that the Court erred:
    1. In opening the decree of the confirmation of the sale and setting it aside.
    2. In striking out of the account of the administrator the charge of $2300 for the purchase-money of the real estate.
    3. In striking out of the account the credit for $1050, paid to J. L. Meredith for his lien.

      Curtis H. Hannum and Thomas W. Pierce, for the appellant.
    The Orphans’Court had no jurisdiction in the case. The petition of Meredith was a bill in equity by a stranger, and the joind'er of the Building and Loan Association could not enlarge the powers of the Court: Dundas’s Appeal, 14 P. F. S,, 325; Ake’s Appeal, 24 P. F. S., 116 ; Weiyand v. Weller, 3 Wr., 443 ; Willard’s Appeal, 15 P. F. 8., -265. The purchase-money was sufficient to fully cover the debt, and the return and confirmation fixed the administrator and his sureties: Kennedy’s Appeal, 4 Barr, 149 ; King v. Gunnison, 4 Barr, 171; Stewart v. Moody, 4 Watts, 169.
    Regarding the sale as voidable, it is not equitable to disturb ft at the instance of a creditor, whose debt is paid by it, and who can have no further interest in the matter: LeiSenring v. Black, 5 Watts, 303.

      S. Jones Monaghan and It. T. Cornwell, for the appellees.
    The appellant is a mere volunteer, and her rights could rise no higher than those of Worth: Basset v. Nosworthy, 2 L. Cas. Eq., 89 ; Cover v. Black, 1 Barr, 493 ; Patterson’s Estate, 1 Casey, 71; Parks v. Jackson, 11 Wend., 442; Sheetz v. Marks, 2 Pearson, 305.
    The jurisdiction of the Orphans’ Court is exclusive: Shollenberger’s Appeal, 9 Harris, 341 ; Dundas’s Estate, 23 P. F. S., 479; Hammett's Appeal, 2 Norris, 392; Otterson v. Gallagher, 7 Norris, 355 ; Lex’s Appeal, 10 W. N. C., 209.
    The Building Association held a lien, which could not be taken away, except by a true and valid sale: Stewart’s Appeal, 32 P. F. S., 323.
   Per Curiam:

We affirm this decree upon the opinion of the learned Court below.

Decree affirmed, and appeal dismissed at the costs of the appellant.


author: — Per Curiam :

text:
    CLEARFIELD COUNTY.
    January Term, 1882,
    Nos. 325 and 326.
    May 1st, 1882.
    Dunn versus Washington Building and Loan Association.
    1. A. owned land, subject to mortgages held by a building association, and agreed with B. to exchange it for land of B. and $1000. He then wrote to the association asking the privilege of transferring the mortgages to the land obtained in exchange with B. The association, by resolution entered on the minutes, granted the request, provided lie would pay all the expenses of the transfer. The association notified B. of its action, and gave him an order to its attorney directing the transfer to be made. A. and B. took the order to the attorney and were informed he would write the mortgage necessary to make the transfer, and they could complete the exchange. B. paid $130.03 to the association for back fines, dues, and interest, and to A. the balance due to him, and entered into possession. Held, in a suit by the association against A. as defendant, and B. as terre tenant, that the above facts did not constitute a release of the mortgages, and that all the association agreed to do was to satisfy their mortgages upon receiving a new one upon the land exchanged.
    2. Even if there was an agreement by the association, it was without consideration, inasmuch as the interest paid by B. was money which the association was previously entitled to receive.

      Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Clearfield County.

      Scire facias sur mortgage, by the Washington Building and Loan Association against George Hager, defendant, and James Dunn, terre tenant.

    Upon the trial in the Court below, before Watson, P. J , the following facts appeared:
    George Hager, in 1872, was the owner of twelve shares in the stock of'the plaintiff association, and of certain real estate. He borrowed moneys from the association, and, as security for these loans, assigned his stock, and executed to the association three separate mortgages, one, dated March 7th, 1872, for $480; one, dated June 2d, 1873, for $506; and the third, dated January 22d, 1874, for $104. On the 17th of August, 1874, there was due for fines, dues, and interest the sum of $130.03, which was paid by Dunn. The stock was forfeited, Ifebruary 22d, 1875, and suit commenced on the mortgages in August, 1875.
    The defendant and terre tenant offered to prove, from the minutes of the association, plaintiff, “ that on or about the 24th of August, 1874, George Hager made in writing the following request of the plaintiff:
    “To the Members oe the Washington Building and Loan Association:
    ‘Dear Sirs: Please allow me the privilege of transferring the bonds and mortgages that stand against my property to the property lately exchanged with James Dunn, if agreeable.
    ‘Yours truly, George Hager.’
    “‘On motion, the request of Mr. Hager was granted, provided that he, Mr. Hager, would pay all expenses incurred by the transfer. Agreed to.’”
    To be followed by proof that “ some two or more months prior to the 24th of August, 1874, George Hager entered into a written agreement with James Dunn to exchange his lots, Nos. 8 and 9, upon which the mortgages in suit are a lien or liens, for two other lots and house owned by James Dunn; that-each took possession of the other’s property under ' the written contract, James Dunn entering into possession of said lots 8 and 9 ; that, by the terms of said contract, he was to pay George Plager a difference of about $1000 in money in the exchange ; that for some time prior to the 24th of August, 1874, they had been negotiating with the Washington Building and Loan Association to have this mortgage transferred from lots Nos. 8 and 9 to the lots Hager received from said Dunn ; that at last it was arranged that upon payment by Dunn, then made, of the fines and dues then owing upon the stock held by Hager with the plaintiff association, that the association would assent to the transfer, and release the property Dunn was buying; that the record was then made upon the minutes of the plaintiff, and the same, or a copy thereof, was given by the association to the defendant, James Dunn, together with a direction to the attorney of the association to have said transfer made ; that Dunn and Hager went to the said counsel, gave him said written direction; that they were informed that he would attend to writing the mortgage necessary to make said transfer, and that they could complete the exchange ; that said Dunn, upon the faith and strength of these acts and declarations of the association and its counsel, paid the balance of the purchase-money to Hager, and took a deed ; that he did not know, for a long time afterwards, said transfer had not been made ; that on the 24th of August, and for a long time thereafter, no other lien or judgment was entered of record against said Hager, other than said mortgage; that the association always prepared all mortgages in which it was interested, and that they had special blanks therefor; that the counsel of the company to whom they were sent had been appointed as counsel in 1873, and continued to act as such hitherto, and that no demand was ever made for prepayment of expenses, said defendant being at all times ready to pay same.”
    Counsel for plaintiff objected to the offer: (1) Because it was based on the condition that Hager would execute to the association a mortgage upon other property, and was unaccompanied with an offer to prove that Hager complied with the condition, or was ready to do so. (2) The transaction was with Hager, and Dunn was not a party to it. (3) It was without consideration. (4) No authority is given by the Board of Directors to any one authorizing the release of the mortgages. (5) It is incompetent and immaterial.
    The Court sustained the objections and rejected the offer, under exception.
    October 5th, 1881. Verdict for the plaintiff, and subsequently judgment.
    The ierre tenant, Dunn, then took out a writ of error, assigning that the Court erred in rejecting the offer as above.

      Wallace and Krebs, for plaintiff in error.

      A mortgage may be released by an instrument not under seal: Wentz v. Dehaven, 1 S. & R., 312; Craft v. Webster, 4 Rawlé, 255; Whitehill v. Wilson, 3 Penna., 412. Such release may be established presumptively: Ackla v. Ackla, 6 Barr, 228.
    The written application by Hager, its consideration by the board, and the agreement with reference to it, the notification of Dunn, the promise of the counsel of the association to attend to it, and the subsequent payment of Hager, together constitute a release.
    The payment of the $130 by Dunn was a sufficient consideration.
    The association is estopped.
    Where a person tacitly encourages an act to be done, he cannot afterwards exercise his legal right in opposition to such consent, if his conduct, or acts of encouragement, induced the other party to change his position, so that he will be pecuniarily prejudiced by the assertion óf such adverse claim: Swain v. Seamen, 9 Wall, 254; Reel v. Elder, 12 P. E. Smith, 308; Comth. v. Moltz, 10 Barr, 527.

      Frank Fielding, for defendant in error.
    A release by parol must be clear, explicit, unconditional, upon sufficient consideration, and fully consummated and •delivered to the releasee. Especially must these requirements be fulfilled when the alleged releasor is a corporation, and the release must appear from the corporate acts of its proper board of directors or managers, and the records of them alone are to determine the nature and extent of the .act.
    . There was no offer to prove that Hager ever complied with the conditions expressed, and that he executed and delivered ■or offered to execute and deliver other mortgage securities to the association.
    There was no consideration. The $130.03 were paid and ■ received in the discharge of a pre-existing debt, and the only effect it had was to settle that debt, for which the association had security. The alleged parol release, if made, was conditional: Reiser’s Appeal, 2 W. N. C., 515. A mortgage held by a corporation cannot be released with so little formality and certainty : Whitehill v. Wilson, 3 Penna., 405; Kidder v. Kidder, 9 Casey, 268 : Kennedy v. Ware, 1 Barr, 445.
    May 15th, 1882.
   — Per Curiam :

Dunn ought to have seen that the mortgage was transferred according to his agreement with Hager before he paid his ptirchase-money. All the association agreed to do was to satisfy their mortgage upon receiving a new one on the land exchanged. Even if there was an agreement by the association, it was without consideration. The payment of the interest due by Hager could form no such consideration. It was money which the association were entitled to receive, and whether paid by Hager, or by Dunn under the arrangement with him, made no difference to the association.

J udgment affirmed.


text:
    CLINTON COUNTY.
    January Term, 1882,
    No. 361.
    April 24th, 1882.
    Pepper’s Appeal — Gamble’s Appeal.
    1. Notices under section 2 of the Wages Act, April 9th, 1872, P. L., 47, must indicate the kind of business of the employer, and the kind of labor or services rendered, so as to give information to the sheriff and the other creditors.
    2. A notice to the sheriff, “ that there is due me from the above named defendant, for labor and services rendered within six months last past, at and about the works, manufactories, mines, or business, and connected therewith, of the defendant, the sum of ninety-nine and ninety five one hundredths dollars ; that I claim that the said sum is entitled to be preferred and first paid out of the proceeds of the sale of the property now advertised by you for sale on the above stated writ, which property was taken at or about the place of business of the said defendant, and used by him in carrying on the same,”' is not sufficient.
    3. Allison v. Johnson, 11 Norris, 316, followed.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Appeals of James Pepper and John. Gamble from the decree of the Court of Common Pleas of Clinton County, sustaining exceptions to the report of an auditor appointed to make distribution of the fund in court arising from the sheriif’s sale of the personal property of James Colbert.
    August 2d, 1880, Colbert entered into a contract with the firm of Pardee & Cook to go upon lands on which they owned the timber and cut down, peel, and cut into convenient lengths the trees, and haul the logs to the river. Colbert emplojmd fifty or sixty men, among whom were the appellants, to chop and saw wood and drive teams.
    February 9th, 1881, Colbert gave to Pardee & Cook a judgment-note for $3000, upon which execution was issued by Ario Pardee, surviving partner, April 11th, 1881, and a levy was made on’the personal property of the defendant.
    Pepper and Gamble gave notice to the sheriff in the following form:
    Ario Pardee, surviving part- "j uer, etc., v. James Colbert.
    In the Court of Common Pleas of Clinton County. No. Ill, May Term, 1881.
    To R. S. Barker, Sheriff:
    You are hereby notified that there is due me from the above named' defendant, for labor and services rendered within six months last past, at and about the works, manufactories, mines, or business, and connected therewith, of the defendant, the sum of ninety-nine and ninety-five one hundredths dollars ; that I claim that the said sum is entitled to be preferred and first ¡said out of the proceeds of the sale of the property now advertised by you for sale on the above stated writ, which property was taken at or about the place of business of the said defendant, and used by him in carrying on the same.
    You are, therefore, hereby required to pay said sum to me out of the proceeds of said sale, agreeably to the Act of Assembly of April 9th, 1872.
    James Peeper.
    By his Attorney,
    C. S. McCormick.
    Of the fund realized from the sale, $1854.24 were paid into Court, and George A. Brown was appointed auditor to distribute.’ Objection was made before the auditor to these claims inter alia, on the ground of the insufficiency of the notices. The auditor allowed inter alia the claims. Pardee, the execution creditor, excepted to the report.
    The Court below, Mater, P. J., sustained the exceptions, and disallowed the claims, saying,’inter alia:

    “The Act of Assembly requires that the notices of the claims shall be in writing, and shall be given to the officer executing the writ before the sale. The writing should contain every element which goes to make up a claim under the statute. Where there has been a substantial compliance with the requirements of the statute, Courts will not be hypercritical in scanning them ; but, as was said by Justice Trunkey, in Allison v. Johnson, 11 Norris, 816, ‘Notices should set forth such facts as make a case within the act, so that the officer and interested persons may know that the labor was done within the time limited, in a business defined in the act, the sum due, and that the property subject to the lien is embraced in the levy. It is immaterial in what form these things are set out, but it is essential that they appear.’
    “ In an opinion delivered, by Judge Elwell, in the Common Pleas of Columbia County, 6th Luz. Leg. Register, page 102, he says: ‘ It (the notice) ought to state the business in which the employer was engaged, the kind of services rendered by the claimant, -whether as a clerk, miner, mechanic, or laborer, the fact that a lien is claimed upon the property seized by the officer, and the particulars of the services as to days’ work, or work by the month or other contracts, and the amount claimed.’
    “We have examined all of the notices given to the sheriff and find but four of them sufficient under the act...... None of the other notices contain any indication of the business of Colbert or the kind of labor. They are defective in omitting these essentials under the act, and for this reason should not have been allowed by the auditor.”
    Pepper and Gamble then appealed, assigning as error inter alia, that the Court erred in not confirming the report of the auditor, and awarding to the appellants the several sums of money awarded them by him.

      C. S. McCormick, for the appellant.
    When we put together the statements in the notice that the claim is for labor and services rendered at and about the works, manufactories, or business, and connected therewith, of the defendant, to be paid out of the proceeds of the property now advertised for sale, which property was taken at or about the place of business of the defendant, and used by him in carrying on the same, the essentials sufficiently appear. The sheriff, or any person in interest, who desired information, could not possibly be deceived as to the business of Colbert, with the levy and the information contained in the notice before him. Every man is presumed to be in possession of and to use his senses. When he comes into the presence of a sheriff’s sale, where he has interests at stake, he must take in something of his surroundings, and, for the exercise of ordinary intelligence and ordinary prudence, the law must always hold him responsible: Seider’s Appeal, 10 Wr., 61; Penua. and Del. R. R. Co. v. Luffer, 4 W. N. C., 77; Weutroth’s Appeal, 1 Norris, 471 ; Taylor v. Rowley, 2 W. N. 0., 140.

      T. O. Hippie, for the appellee.
    None of the authorities cited by the appellants sustain the claim that the Act of April 9th, 1872, is entitled to liberal construction. On the contrary, precedents favor a strict and close construction of the act. He who would claim extra and unusual privileges must not be supine or careless, especially when such extra right is adverse to and in derogation of the rights of many other persons.
    Appellants’ theory would give to the act a scope and force surely never contemplated by the legislature, and such as has not been sauctioned by the Supreme Court: Allison v. Johnson, 11 Norris, 314.
    The notices should themselves plainly set forth the facts. No information gained by the sheriff in the discharge of his duty, or by interested parties attending the sale, or gained independent of the notices, can cure auv defect therein, or bind any one.
    Upon their notices labor claimants must stand or fall.
    If it is required to set forth in the notice “a business defined in the act,” and if more than one business is contemplated by the act, then it is clear the notice should state what particular business it is, where carried on, how located, etc. Bo with the other particulars of the act. The notices were all alike, in printed form, and merely followed the general words of the act. No attempt was made to particularize even the business carried on by Colbert, or the place where carried on.
    May 18th, 1882.
   — Per Curiam:

The notices in these cases were clearly insufficient within the Act of April 9th, 1872: Pamph. L., 47; Allison v. Johnson, 11 Norris, 316. They contain no indication of the kind of business of Colbert, nor the kind of labor or services rendered, so as to give information to the sheriff, nor to other creditors, as the act evidently intended.

Decree affirmed and appeal dismissed at the costs of the appellants.