author: Mr. Justice Woodward

text:
    Pownall versus Bair.
    1. Walter, an agent for the sale of machines, appointed Pownall his agent; he employed Bair to assist him, Bair to receive a certain compensation from Pownall for each machine sold ; he sold four machines, one on credit, negligently, to a man who was insolvent, by which there was a loss to a greater amount than the compensation for the sale of the four machines, for which loss Pownall was answerable to Walter: Held, that Bair was liable to Pownall for the whole loss.
    2. In assumpsit in the common counts by Bair against Pownall for his compensation: Held, that under the plea of non-assumpsit, Pownall might, without notice of special matter, make defence for the whole loss, and was not limited to defalk the compensation for one machine.
    3. The action being for compensation under a contract for employment, the misfeasance went directly to the consideration, and the defendant might prove whatever would show that ex cegiio et bono the plaintiff should not recover.
    4. If an agent sell to an insolvent person when proper inquiry would have enabled him to learn the facts, he is responsible to his principal for all the damages which are the natural consequences of his act.
    5. Where an agent has become responsible to his principal by the misconduct of his own sub-agent, and has been compelled to pay his principal, he may recover from the sub-agent.
    May 3d 1875.
    Before Agnew, C. J., Shaeswood, Meecur, Paxson and Woodward, JJ.
    Error to tbe Court of Common Pleas of Lancaster county: Of May Term 1875, No. 7.
    This case commenced before a justice of the peace, from whose judgment an'appeal was entered in the Court of Common Pleas, on the 10th of November 1870. The plaintiff was Abraham Bair and the defendant Greorge Pownall; the declaration was in the common counts ; the plea was non-assumpsit.
    On the trial, October 20th 1873, before Hayes, J., the circumstances of the case appeared to be as follows :—
    Brinton Walter was the general agent in Lancaster county for the sale of the mower and reaper of Dodge, Stevens & Co., of Auburn, New York; the defendant was employed by Walter as his sub-agent, and the defendant employed the plaintiff to assist him in selling machines, agreeing to give him $12.50 on every machine sold. The plaintiff sold four machines ; one of them was sold and delivered to a man named Wertz, on his promise to give a note for it next day, with good security ; the note was not given, and. Wertz proved insolvent; the machine was returned to Walter some two years afterwards at a loss of $105.
    The defendant alleged that the plaintiff when he sold the machine knew of Wertz’s insolvency, and the only question was what amount of damages the defendant could interpose to the plaintiff’s claim.
    After the plaintiff had proved his case, as above stated, defendant testified, that be ascertained that Wertz wished to buy a machine ; that he told plaintiff that Wertz was not worth anything, and directed him not to sell to Wertz; defendant was responsible to Walter for $105, which was the loss by the sale of the machine to Wertz.
    There was other evidence as to Wertz’s insolvency, and plaintiff’s knowledge of it when he sold the machine; also, that Pownall was held accountable by Walter for the loss.
    The court, after stating the facts, charged : * * *
    “ But if tlae jury believe from the evidence that he knew Henry Wertz’s circumstances when he delivered the machine to him ; that he let him take it away on his mere promise that he would give his promissory note with his father as surety ; that he was previously forbidden to sell to Wertz by his employer, the defendant, then he was not only guilty of culpable negligence in parting with the property intrusted to his agency and care, but acted in the matter beyond and without authority, and, of course, would not be entitled to anything from the defendant for such sale. The defendant contends that Bair should account for the loss sustained by reason of this sale, to wit: the $105. But, in the first place, there is no plea of set-off in the case; again, the defendant has lost nothing; he says he is responsible to Brinton Walter ; but he has not been called upon to pay anything on that account, nor has anything been demanded of him. He has therefore no claim upon the plaintiff which he could establish in a suit against him. Besides, Brinton Walter, as has already been stated, was not the owner of the machine, but the general agent to sell. On the whole, there seems to be no bar to the recovery of the stipulated amount claimed by the plaintiff of his employer, the defendant, on the sale of the three machines to unexceptionable purchasers, and if the jury come to that conclusion from all the evidence before them, they will find a verdict for the plaintiff to that extent, $12.50 for each machine, with interest.”
    The verdict was for the plaintiff for $45.25.
    The defendant took a writ of error and assigned the charge for error.

      P. P. Baker, for plaintiff in error.
    If an agent by gross unskilfulness or gross negligence injures his principal he will be liable in damages, and will also lose his commissions : Story on Agency 409, 419, pl. 331, 333. Under the common counts and the plea of non-assumpsit defendant may, without notice, give in evidence anything which shows that the plaintiff ought not ex aequo et bono to recover: Gaw v. Walcott, 10 Barr 43; Beals v. See, Id. 57. An agent is liable for loss occasioned by a sub-agent: Broun v. Arrott, 6 W. & S. 421; Clark v. Bank of Wheeling, 5 Harris 322.

      J. B. Amwake (with whom was W. A. Wilson), for defendant in error.
    The defence could be sustained only under the plea of payment with notice: Heck v. Shener, 4 S. & R. 258.
   Mr. Justice Woodward

delivered the opinion of the court, October 11th 1875.

Abraham Bair, the plaintiff below, entered into an agreement in the spring of 1869 with George Pownall, the defendant, who was the agent for the sale of mowing and reaping machines manufactured by the firm of Dodge, Stevens & Co., of Auburn, in the state of New York. ■ The general agent w'as Brinton Walter, from whom Pownall’s authority to sell had been derived. The arrangement between Bair and Pownall was, that for each machine sold Bair should retain a commission of $12.50. In pursuance of the agreement, Bair disposed of four machines, and this suit was brought to recover $50, the commissions claimed upon those sales. On the trial, it was alleged by the defendant, and evidence was given to show, that one machine was sold to Henry Wertz, whom the plaintiff knew to be insolvent. After Wertz had used it for two years, this machine was taken back at a loss of $105. The question in the court below was as to the measure of the damages which, under the facts alleged on his behalf, the defendant could set up against the plaintiff’s claim. The sale to Wertz was held to be a breach of the plaintiff’s duty under his contract, and the jury were instructed, if they found the facts as the defendant asserted them, to defalk as damages a single commission of $12.50, the amount to which the plaintiff would have been entitled for a single sale. The court held that the defence could not reach to the residue of the plaintiff’s claim.

In view of the verdict, the facts in the cause may for present purposes be assumed. The improvident sale by the plaintiff to Wertz involved a loss of $105. There was evidence that the defendant, in his running account Avith Walter, was responsible for that loss. The relation of principal and agent, so far as these transactions were concerned, was confined exclusively to these parties. The loss sustained was the direct result of the plaintiff’s reckless negligence. Under such circumstances, the rule that confined the allowance of damages to the commission on the sale of a single machine was entirely too narrow and restricted. It was a general contract into Avhich the parties had entered, and it was a general authority with which the plaintiff had been invested. His poAvers were not limited to a single transaction or a single series of transactions. He had undertaken to act for the defendant in the general sale of the machines upon certain specific terms; and the law imposed upon him the duty of acting with adequate care and prudence. Violating this duty, he became responsible to his principal for damages equal in amount to the loss caused by his delinquency. ' It is a doctrine of the text-books that if an agent “ shut his eyes against the light, or sell to a person without inquiry, when ordinary diligence would have enabled him to learn the discredit or insolvency of the party, he will not be discharged from responsibility to his principalStory’s Agency, § 186. “ If he unnecessarily exceeds his commission, or risks the property of his principal, he thereby renders himself responsible for all losses and damages which are the natural consequence of his actIbid., § 192. The application of these principles to the facts of the present case extends them to the plaintiff’s entire claim for compensation. The agent is entitled to his commission only upon a due and faithful performance of all the duties of his agency in regard to his principal. If he does not perform his appropriate duties, or if he is guilty of a gross negligence, or gross misconduct, or gross unskilfulness, in the business of his agency, he will not only bécome liable for any damages his principal may sustain thereby, but he will also forfeit all his commissions.” Ibid., § 881.

The liability of the plaintiff to make good the loss caused by his negligence to the extent of the amount in controversy here is undoubted. There was no privity of contract between him and the general agent, Walter. Of course, there was no privity of contract between him and the manufacturers. His contract was with the defendant, and the duty he had assumed he owed to him. It was decided in Mainwaring v. Brandon, 8 Taunt. 202, that where an agent has become responsible to the principal by the negligence or misconduct of his own sub-agent, and has been compelled to pay damages therefor to his principal, he may recover all that he has thus been compelled to pay from his sub-agent. The rule is settled that a sub-agent employed by an agent is, in general, only accountable to the agent, and not to the principal, for there is no privity between the principal and the sub-agent: Cartwright v. Hateley, 1 Ves., Jr., 292; Pinto v. Santos, 5 Taunt. 447; Story’s Agency, § 217 a. The responsibility of the defendant to his immediate principal, or to the manufacturers, for the $105 lost on the machine sold by the plaintiff to Wertz, was a question for the jury, which seems to have been properly submitted to, and intelligently passed upon by them. If the plaintiff could hold the defendant liable, the right of the latter to resort to the plaintiff is settled by adequate authority. An agent may sue in his own name on a contract made with him : Underhill v. Gibson, 2 N. Hamp. 352 ; Tankersley v. Graham, 8 Alabama 247 ; and it makes no difference whether the agent in such a case acts under a commission del credere or not: Houghton v. Mathews, 3 B. & P. 185, 465.

The defence was legitimate under the plea of non-assumpsit. The action was for commissions which the-plaintiff claimed to have been earned in his employment under his contract with the defendant. The allegation of the defence was that the plaintiff, in the course of that employment, had been guilty of malfeasance. It reached directly to the consideration. Under the plea, the defendant was entitled to prove everything which could show that, at the time the action was commenced, the plaintiff, ex cequo et bono, ought not to recover: Gaw v. Walcott, 10 Barr 43. In Heck v. Shener, 4 S. & R. 258, which was an action brought by a housekeeper for wages, the defendant, under the general issue and without notice, was permitted to prove the plaintiff’s “ misconduct in her office to defeat her claim.” “The evidence,” it was said by Gibson, C. J., “ was strictly admissible, for it went to the consideration, which was the gist of the action.” A plea' of set-off would have been incongruous, as well as superfluous.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Lancaster County National Bank versus Moore.
    1. Persons not sui juris or not having capacity to contract debts are liable for torts and may bind themselves for necessaries.
    2. Moore, desiring to borrow money from Stauffer, gave his note to him; it was discounted bona fide at a bank for Stauffer, and he gave Moore his check for the amount. An inquest commenced afterwards found Moore a. lunatic for a time anterior to the discount of the note; the finding was traversed. The bank had no notice of the finding or of Moore’s lunacy. Held, in a suit by the bank against Moore, on the note, that under the circumstances the insanity of Moore was not a defence, the contract being executed and without fraud.

      3. The inquisition was but primá facie evidence of insanity.
    4. Reports in the neighborhood that Moore was insane, were not evidence in a suit against him by the bank on the note.
    .May 3d 1875.
    Before Agnew, C. J., Sharswood, Mercur, Paxson and Woodward, JJ.
    Error' to the Court of Common Pleas of Lancaster county: No. 26, to May Term 1875.
    This was an action of assumpsit, commenced April 15th 1872, by the Lancaster County National Bank, against George PI. Moore.
    The cause of action was a note, dated December 30th 1871, drawn by defendant in favor of Benjamin M. Stauffer, payable at ‘the Manheim National Bank, for $225 ; endorsed by Stauffer and protested. The defence was that the defendant was non compos mentis.

    The case was tried May 22d 1874, before Livingston, P. J.
    The plaintiff gave the note, &c., in evidence and rested.
    The defendant offered in evidence the record of proceedings in lunacy against Moore, commenced June 5th 1872; the inquest f June 28th found that Moore had been a lunatic for three years before the inquisition ; the inquisition was confirmed August 19th 1872. John M. IPershey, a creditor of Moore, traversed the inquisition October 25th 1872; a replication was filed December 17th 1873. The offer was objected to by the plaintiffs, admitted by the court and a bill of exceptions sealed.
    The defendant rested.
    The plaintiff gave evidence by Stauffer, the payee and endorser of the note, that the defendant called on witness to borrow $1000. Witness and defendant went to plaintiff’s bank and at the request of witness the cashier drew the note in suit and another for $775 ; witness endorsed them, and they were discounted by the plaintiff; the witness gave defendant a check for the amount of the $225 note, less the discount on both notes, and also a check for $775, which checks were paid by the plaintiff. Witness testified that the defendant was competent to transact business at that time; that witness had known him for a long time and he was at that day as he always had been, and during all his acquaintance with defendant he had never seen anything to induce him to believe that defendant was of unsound mind.
    There was evidence for the plaintiff, by a number of witnesses, that the defendant wTas competent to transact business, and of facts tending to show his capacity.
    The plaintiff rested.
    The defendant then offered to prove, that “ at the time the note was discounted and for a long time afterwards and ever since, the defendant was non compos mentis and did not enjoy lucid intervals.”

      The offer was objected to by the plaintiff because “ the plaintiff is the bond, fide holder of the note in suit, made by G. H. Moor.e and endorsed by B. M. Stauffer; having paid full value therefor Moore actually received the money. That as said hank had no notice of the alleged lunacy of the drawer, and was guilty of no fraud in procuring the same, and no offer is made to prove notice of said lunacy or fraud on the part of the plaintiff, the defendant cannot set up his own insanity as a defence, the contract having been executed by the plaintiff.”
    The court admitted the offer and sealed a bill of exceptions for plaintiff.
    The defendant then gave evidence, by very many witnesses, that for a long time the defendant had been incompetent to transact business.
    The defendant proposed to ask Martin M. Brubaker, one of his witnesses, “ whether for years back it had not been the current report in the neighborhood that Moore (defendant) was of unsound mind and unfit to do business.”
    • This was objected to by plaintiff, admitted by the court, and a bill of exceptions sealed.
    The witness answered the question affirmatively.
    Defendant proposed to ask George Diffenderfer, a witness on the stand : “-What was the general report of the neighborhood as to the state of his (defendant’s) mind ?”
    This was objected to by the plaintiff, admitted by the court and a bill of exceptions sealed.
    Witness testified that the people in the neighborhood said that the defendant was simple, &c.
    The defendant gave evidence by other witnesses on the same point. There was no evidence that at or before the discounting of the notes the plaintiff had any notice of defendant’s incompetency.
    The plaintiff’s points and the answers were :—
    1. The contract in this case on the .part of the bank having been executed, and there having been no notice to the bank of the alleged lunacy on the part of the defendant, and no fraud alleged, the verdict must be for the plaintiff.
    Answer: “ If the jury find from all the evidence, that George II. Moore, at the time he signed this note in the bank, was of unsound mind, a lunatic, having no lucid interval, the bank cannot recover in this action, notwithstanding it had received no notice of his lunacy, the contract not having been proved to be for necessaries. If he was'of sound mind the verdict should be for plaintiff.”
    2. If the jury believe that at the time of the execution of the note upon which this suit is brought, the defendant was of sufficient mental capacity to understand what he was doing — was aware that he was giving a note, and knew the legal consequences of his act, viz., that he was liable for the payment of the same — the verdict must be for the plaintiff.
    Answer: “ If the jury believe from the evidence, that at the time George H. Moore signed this note in the bank he was of a sound mind, able tp distinguish right from wrong, with power to avoid wrong and adhere to the right, and had power to govern his mind, body and estate, with safety to himself and others, and to know the nature of the transaction he was then engaged in, he would be liable, and the verdict should be for the plaintiff. But if the jury believe he was of unsound mind, a lunatic without a lucid interval, the verdict should be for the defendant.”
    The court, after stating the cause of action, &c., said:—
    * * * “ [The main question therefore, for your consideration and decision in this case is: was George H. Moore, the defendant, a lunatic, without lucid intervals at the time he signed the note in suit, or was he of sound mind and competent to conduct his .property and affairs with safety to himself and others ?] ”
    * * * “ [Unsoundness of mind does not relate to a degree of weakness, but incapacity, and the question is, has a defendant been so far deprived of his reason and understanding as to be rendered altogether unfit, and unable to govern himself, and manage his affairs, in this case; has George H. Moore been deprived of his reason and understanding from any cause whatever, so far as to render him altogether unfit and unable to govern himself or manage his affairs and estate ? and was he so at the time he signed the note upon which this suit is brought to recover from him $225 ? if he was, then there can be no recovery by the plaintiff, there being no evidence that the action is brought for necessaries furnished to the defendant. If therefore you find from all the evidence, that George H. Moore was not a lunatic, at the time he signed the note in suit, but was fit and able to govern himself, and had sufficient power of mind to do business and manage his affairs and estate, with safety to himself and others, then your verdict should be for the plaintiff, for the amount of the note with interest.] Or if you find from all the evidence that George H. Moore was a lunatic before and after signing the note, but on the day, at the time of the act of signing the note in the Lancaster County National Bank, he had a lucid interval, and was then fit and able to govern himself, and had sufficient power to do business and manage his affairs and estate, with safety to himself and others, your verdict should be for the plaintiff for the amount claimed, the note and interest.
    “ [But, if you, from all the evidence before you, find, and are satisfied that George H. Moore was a lunatic, and so far deprived of his reason and understanding, at the time of signing the note in suit, as to be rendered unfit and unable to govern himself, and manage his affairs and estate with safety to himself and others, then your verdi,ct should be for the defendant.]” * * *

      The verdict was for the defendant.
    The plaintiff took a writ of error and assigned for error :—
    1. Admitting the record of the proceedings in lunacy against the defendant.
    2. Allowing evidence that at the time the notes were discounted the defendant was a lunatic, &c.
    3. Allowing evidence that it was the report in the neighborhood that defendant -was of unsound mind, &c.
    4. Allowing evidence of the general report in the neighborhood as to what was the state of defendant’s mind.
    5. The answer to the plaintiff’s first point.
    6. The answer to the plaintiff’s second point.
    7. The parts of the charge of the court enclosed in brackets.

      Gf. Naumcm and S. JR. Reynolds, for plaintiff in error.
    This contract was executed: Fletcher v. Peck, 6 Cranch 87 ; Smith-on Contracts 107, 229. A defendant cannot set up his own insanity unless it were known by plaintiff: Byles on Bills 47. In an executed contract, the lunacy of defendant ■ being unknown to the defendant, the lunatic cannot take advantage of it: Molton v. Camroux, 4 Exch. 19; Neill v. Morley, 9 Ves. 478; Baxter v. Portsmouth, 2 0. & P. 178; Cook v. Parker, 4 Phila. R. 267; Osmond v. Fitzroy, 3 P. Wms. 130; Dane v. Kirkwall, 8 C. & P. 679. A contract with a lunatic apparently sane cannot be rescinded unless the parties can be placed in statu quo : 1 Parsons on Contracts 385; La Rue v. Gilkyson, 4 Barr 375. The position that one non compos mentis cannot make a contract under any circumstances is untenable: Beals v. See, 10 Barr 56; Nace v. Boyer, 6 Casey 99 ; State Bank v. McCoy, 19 P. F. Smith 204. The test of capacity given in answer to the plaintiff’s second point was too strict; it is enough if the party knows the character of the act, and its resulting responsibility: Noel v. Karper, 3 P. F. Smith 97. Reports of the neighborhood as to defendant’s state of mind were inadmissible : 1 Greenl. on Ev., sect. 99; Wright v. Tatham, 1 Ad. & E. 3.

      JR. M. North and T. JE. Franhlin, for defendant in error.
    The test of liability for a lunatic’s contract, is whether it was for necessaries ; whether the contract was executed or executory is not material: Desilver’s Estate, 5 Rawle 111; Rogers v. Walker, 6 Barr 371; Seaver v. Phillips, 11 Pick. 306 ; Clark v. Caldwell, 6 Watts 139 ; Imhoff v. Witmer, 7 Casey 243 ; Inst. Lib. 3, tit. 20, sect. 8; Pothier on Oblig., part 1, cap. 1, sect. 1, art. 1-4; 3 Bac. Abr. 539 ; Yates v. Boen, 2 Strange 1104; Gore v. Gibson, 13 M. & W. 623 ; Pearl v. McDowell, 3 J. J. Marsh. (Ky.) 659; Bensell v. Chancellor, 5 Whart. 374. A contract of one so far deprived of his reason as to be unable to manage his- affairs, is not binding: McElroy’s Case, 6 W. & S. 451; Commonwealth v. Schneider, 9 P. F. Smith 328. The finding by the commission de lunático inquirendo is primá facie evidence of lunacy : Hutchinson v. Sandt, 4 Rawle 234 ; Gangwere’s Appeal, 4 Casey 466; Willis v. Willis, 2 Jones 159 ; Commonwealth v. McGinnis, 2 Whart. 213. The report in the neighborhood that the defendant was simple was competent: Rogers v. Walker, 6 Barr 371.
   Mr. Justice Paxson

delivered the opinion of the court, May 24th 1875.

The law is well settled that persons who are not sui juris, and have no general capacity to contract debts, are nevertheless liable for their torts, and may bind themselves for necessaries. Such rule rests upon principles of sound public policy. To deny the latter branch of the proposition might in some instances deprive persons laboi'ing under such disabilities of the means of suhsist- . ence. In La Rue v. Gilkyson, 4 Barr 375, it was held that the executor of a lunatic was liable for necessaries furnished to his testator while non compos mentis, and before the appointment of a committee. In that case the articles furnished came within the most rigid rule as applied to necessaries, such as board, washing, &c., but Chief Justice Gibson, who delivered the opinion of the court, cites approvingly Baxter v. Portsmouth, 2 C. & P. 178, in which it was held that the word “ necessaries ” (furnished to a lunatic) is not to be restricted to articles of the first necessity, but that it includes everything proper for a person’s condition ; and that to hire carriages for a nobleman who, though actually insane, voted in Parliament, and went about as other men do, carries with it no mark of imposition.” And it was also strongly intimated that such a man would even be liable for merchandise innocently furnished to his order under such circumstances. It is true, the latter point was not before the court, and the expression referred to is but dictum, but the mere dictum of so. eminent a jurist as the late Chief Justice Gibson is entitled to respect. La Rue v. Gilkyson was followed by Beals v. See, 10 Barr 56, in which it was held that an executed contract by a merchant for the purchase of goods before the day from which the inquest found him to have been non compos, could not he avoided by proof of insanity at the time of the purchase, unless there had been a fraud committed on him by the vendor, or he had knowledge of his condition. There was proof in the case cited that the goods purchased were unsuited to the object for which they were purchased; that the price agreed upon far exceeded their market value, and that plaintiff had tendered them back to the defendants, who declined received receiving them, whereupon they were sold at auction, after notice. Says Gibson, C. J., “ Should he have made a wild and unthrifty purchase from a stranger unapprized of his infirmity, who is to bear the loss incurred by one of the parties to it ? Not the vendor, who did nothing that any other man would not have done. As an insane man is civilly liable for his torts, he is liable to bear' the consequences of his infirmity as he is liable to bear his misfortunes, on the principle that when a loss must be borne by one of two innocent persons it shall be borne by him who occasioned it. A merchant, like any other man, may be mad without showing it, and when such a man goes into the market, makes strange purchases and anticipates extravagant profits, what are those who deal with him to think ? To treat him as a madman would exclude every speculator from the transactions of commerce.” It will be observed in this case that the goods were purchased two days prior to the day from which the inquest found the purchaser insane, and the transaction was not, therefore, covered by the finding. But the court do not rest their decision upon this ground, but treat it as the purchase of an jnsane man — insane at the time of the purchase. Such was evidf^tly the view'taken of the case in Nace v. Boyer, 6 Casey 99, in which the late Chief Justice Woodward says: “ In Beals v. See, 10 Barr 56, this court held that an executed contract by a merchant for the purchase of goods could not be avoided by proof of insanity at the time of the purchase, unless a fraud was committed on him by the vendor, or he had knowledge of his condition.’.’ The principles decided in La Rue v. Gilkyson and Beals v. See, are recognised in State Bank v. McCoy, 19 P. F. Smith 204.

We will apply these principles to the facts of this case. George H. Moore, the defendant and alleged lunatic, resided in Lancaster county, about six miles from Lancaster city, where the plaintiff’s corporation is located. He was a man of some property, was about fifty-four years of age, a.nd to some extent, at least, had managed his own pecuniary affairs. There was not a scintilla of proof that the bank had any knowledge of his mental imbecility. On December 30th 1871, he called at plaintiff’s bank, in company with B. M. Stauffer, a resident of Mount Joy, Lancaster county, for the purpose of obtaining a discount, when two notes were drawn up, one for $225 and the other for $775, signed by the said George H. Moore, to the order of Stauffer, and by him endorsed. The two notes were both discounted, and the money placed to the credit of Moore and checked out by him. There is no allegation that the money thus obtained was used improvidently; in fact, the evidence tends to show that it was applied to the payment of his debts. Nor was there anything in his manner or conversation to put the officers of the bank on their guard as to his mental condition. On June 5th 1872, a petition de lunático inquirendo was presented against George H. Moore, and after the usual proceedings, an inquisition was returned on August 10th 1872, finding that the said Moore was a lunatic, and had been so for about three years last past, and had no lucid intervals. This inquisition was traversed on October 25th 1872, by John M. Hershey, a creditor. Said traverse was pending at time of the trial in the court below.

In Beals v. See, as before observed, the day when the goods wore sold was not covered by finding of the inquest. Here the inquisition shows Moore to have been a lunatic at the time the note was made and discounted by the bank. The record of the proceedings in lunacy was admitted in evidence at the tidal in the court below, and was undoubtedly primá; facie evidence of Moore’s insanity. But we are unable to see how this affects the case. Beals v. See was decided upon the express ground that the merchant was liable, notwithstanding his insanity, upon an executed parol contract, in the absence of fraud in the transaction, and of knowledge on the part of the vendor of his insanity. The most that the inquisition amounted to, was to establish a primá facie case of insanity when the contract was made. But the broad principle decided in Beals v. See was that the insanity, when established was not, under the circumstances, a defence.

The soundness of this rule is too apparent to need any extended vindication. Insanity is one of the most mysterious diseases to which humanity is subject. It assumes such varied forms and produces such opposite effects as frequently to baffle the ripest professional skill and the keenest observation. In some instances it affects the mind only in its relation to or connection with a particular subject, leaving it sound and rational upon all other subjects. Many insane persons drive as thrifty a bargain as the shrewdest business man, without betraying -in manner or conversation the faintest trace of mental derangement. It would be an unreasonable and unjust rule that such persons should be allowed to obtain the property of innocent parties, and retain both the property and its price. Here the bank in good faith loaned the defendant the money on his note; the contract was executed so far as the consideration is concerned, and it would be alike derogatory to sound law and good morals that he should be allowed to retain it to swell the corpus of his estate.

It will be seen that the fact that the bank had no notice of the defendant’s insanity is an important element in the case. The proceedings in lunacy were not commenced until after the note was discounted, and the plaintiffs were not even affected with constructive notice. We limit our decision in this case to its own facts, and do not decide the case of a contract made during proceedings in lunacy or after inquisition found. We leave the effect of lis pendens in such a case until the point is raised. Nor does this decision apply to conveyances of land or other instruments under seal.

From what has been said it will be seen that the learned judge erred in liis answer to the plaintiff’s first point. Said point should have been affirmed in the terms in which it was presented.

There was also error in that portion of his charge referred to in the seventh assignment of error. The jury should have been instructed that if there was no fraud in the transaction, and the bank had no notice of defendant’s insanity, the verdict should be for the plaintiffs.

There was also error in the admission of the evidence referred to in the third assignment. It is true its admission would seem to be sustained by the dictum in Rogers v. Walker, 6 Barr 375. But the point did not arise in that case, and the remark referred to was evidently used by way of illustration. We are unable to see how the neighborhood reports of Moore’s insanity could possibly have been legitimate evidence in this case. If offered to affect the bank with notice of his insanity, it was not competent, for the reason that the reports were not brought home to the hank. If offered to prove the distinct fact of Moore’s insanity it was clearly inadmissible. It was at best mere hearsay, and no amount of such evidence could legally establish such fact.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Mercur

text:
    Evans versus Reed.
    1. An action of account was brought by Evans against Keed; both testified in it; a verdict was rendered for Evans and a new trial awarded on the ground that the action should have been assumpsit, Evans died, his administratrix was substituted and the form of action changed to assumpsit. Held, that the notes of the testimony of Evans, in connection with that of Reed, taken on the first trial, were evidence on the second trial.
    2. The action not being by an executor, administrator or guardian, did not fall within the proviso of the Act of April 15th 1869.
    3. The intent of the 3d sect, of the Act of April 15th 1869, authorizing testimony of parties to be taken by “ deposition,” &e., was to permit the deposition of a party to be. taken for the perpetuation of his testimony against all contingencies which might arise, whether of absence or death.
    4. The deposition of a party taken so as to be admissible in a pending case, is admissible in a subsequent suit between the administrators of the parties involving the same subject-matter.
    March 4th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1875, No. 44.
    This action was originally account render, brought to November Term 1869 of the court below, by Jacob Evans against George K. Reed and.Julius Levy, “ late partner with the plaintiffs.” On the 17th of October 1871, the court allowed the plaintiff to strike out the name of Levy as one of the defendants.
    The case was tried before Hayes, J., against Reed alone, August 28th 1872.

      On this trial Evans, the plaintiff, and Reed, the defendant, were both examined as witnesses.
    A verdict was rendered for the plaintiff; the court being of the opinion that the action should have been in assumpsit, set aside the verdict and directed a new trial.
    Afterwards the plaintiff died, and his administratrix, Caroline Evans, was substituted as plaintiff, and the form of action changed to assumpsit.
    On the trial September 3d 1874, the plaintiff offered to read the notes of testimony taken by Judge Hayes on the former trial of this case ; this was objected to by the defendant, because the action was originally account render against Levy and Reed; Levy’s name was stricken off on motion of plaintiff; a verdict on the issue between Evans and Reed; a new trial, plaintiff’s death suggested, his administratrix substituted, and the form of action changed.
    The offer was rejected and a bill of exceptions sealed for the plaintiff.
    No other evidence was offered by the plaintiff, and the court directed that a verdict should be rendered for the defendant; a verdict was so rendered.
    The plaintiff took a writ of error and assigned for error the rejection of the evidence offered by her. "

      JE. Ghampneys, for plaintiff in error.
    When a witness examined at a former trial between the same parties on the same subject-matter is dead, the notes of testimony taken on that trial may be given in evidence on a subsequent trial: Phila. & R. Railroad Co. v. Spearen, 11 Wright 300; Cornell v. Green, 10 S. & R. 14; Rhine v. Robinson, 3 Casey 35; Magill v. Kauffman, 4 S. & R. 319 ; Clark v Sanderson, 3 Binn. 192; Hamilton v. Marsden, 6 Id. 47 ; Hamsher v. Kline, 7 P. F. Smith 403; Moore v. Pearson, 6 W. & S. 51; Livingston v. Cox, 8 Id. 61.

      D. Gf. Baker and O. J. Dickey, for defendant in error, cited Allum v. Carroll, 17 P. E. Smith 70.
   Mr. Justice Mercur

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

This action was not brought by or against an executor, administrator or guardian. It does not, therefore, fall within the proviso to the first section of the Act of 15th April 1869. It differs from any case which has preceded it. It was an action between parties in their own right.

On the first trial of the case, involving the same subject-matter, but where the action was in a different form, parties had testified and their testimony had been reduced to writing. The verdict then rendered had been set aside and the form of action subsequently changed by leave of the court. After that verdict the plaintiff died and his administratrix was substituted. The sole-question now is whether the testimony of the plaintiff, thus taken during his life, is admissible in evidence on a subsequent trial of the case after his death.

When the testimony -was taken the plaintiff was a competent witness in the case. It was taken with full opportunity for cross-examination. Did his subsequent death make his testimony thus taken incompetent ? The third section of the Act of 15th April 1869, permitting parties to testify, expressly declares the testimony of witnesses authorized by the act may be had “ by deposition or commission issued.” The manifest intent, then, was to permit the deposition of a party to be taken for the perpetuation of his testimony against all contingencies that might arise, whether of absence or of death. The Act of 28th March 1814, Purd. Dig. 625, pi. 24, declares: “ Any deposition taken, or to be taken in any cause, which by the rules of law may be read in evidence on the trial of the cause in which it is or may be taken, shall be allowed to be read in evidence in any subsequent cause wherein the same matter shall be in dispute between the said parties or persons, their heirs, executors, administrators or assigns.”

If the deposition of a party be duly and regularly taken so as to be admissible in evidence in a pending case, it is very clear that it would be admissible in a subsequent suit between the administrators of the parties involving the same subject-matter. If admissible in a subsequent suit, it must certainly be in the case in which it was taken. It is true, the case now under consideration is not technically a deposition, yet for most purposes it stands on the same footing. The notes of testimony of a deceased or absent witness, duly proved, have often been held to be admissible in evidence : Moore v. Pearson, 6 W. & S. 51; Jones v. Wood, 4 Harris 25; Phila. & Reading Railroad Co. v. Spearen, 11 Wright 300.

The tendency of both judicial and legislative action is against the exclusion of evidence on the ground of interest. When the plaintiff in this case testified he was unquestionably competent. His testimony then became a part of the evidence in the case. If the second trial had taken place in his lifetime, he being at the time out of the jurisdiction of the court or unable by reason of sickness to be present, his testimony could have been read in evidence. So, for a like reason, it may be after his death. The evidence was not taken in an action in which, at the time any executor, administrator or guardian was a party.

We see no reason why a subsequent change in the form of action should so operate as to exclude the testimony. It is not the form of action, but identity of subject-matter in controversy that is important. We think the learned judge erred in rejecting the evidence.

Judgment reversed and a venire facias de novo awarded.


author: Per Curiam.

text:
    Nissley versus Heisey’s Executor. Heisey’s Executor versus Nissley.
    1. Nissley died intestate in 1834. leaving a widow and children: an inquisition in partition valuing, &c., his real estate, was confirmed November 5th 1838; a daughter, one of his heirs, was married November 29th. Two of his sons, March 1839, accepted the land at the valuation, subject to the widow’s interest, payable to his heirs at her death. The daughter died in 1862, leaving a husband, and having made a will disposing of her interest in her father’s real estate accruing after the death of the widow, who died in March 1872. In December 1872 the husband of the daughter notified her executors that he claimed the whole of his wife’s share in her mother’s dower, refused to recognise her will, and claimed all his rights to her real estate to which by law he was entitled. The court below decided that the daughter’s interest was her separate property and would pass by her will, subject to her husband’s rights under the Act of May 4th 1855 ; and that the husband gave sufficient notice of his election. This was affirmed by the Supreme Court.
    2. When the wife’s interest in her father’s real estate was converted by the proceedings in partition, it could not go to the husband without her consent, <fec., under the Act of March 29th 1832, which not having been obtained the money never vested in the husband.
    May 4th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Writs of error to the Court of Common of Pleas of Lancaster county: Of May Term 1875, Nos. 47, 49.
    This was an action to the April Term 1873, of the court below, by David M. Eyer, executor, &c., of Daniel K. Heisey, deceased, against Joseph W. Nissley and Martin Nissley. On the 12th of September 1874 a case stated was filed, showing the following facts.
    Martin Nissley died intestate March 9th 1834, leaving a widow, Anna, Nissley and six children, of whom Barbara Nissley was one. Under proceedings in partition in the Orphans’ Court, the real estate of Martin Nissley was divided into two parts, and valued; the inquisition was confirmed November 5th 1838. On the 29th of November 1838, Barbara Nissley, a daughter of decedent, was married to Daniel K. Heisey, the plaintiff’s testator.
    On the 18th of March 1839, one of the purparts, valued at $13,631, was taken by Joseph W. Nissley at the appraisement; and the other, valued at $10,561.25, was taken by Martin Nissley at the appraisement; each purpart was taken charged with one-third of its valuation during the life of the widow, payable to the heirs and legal representatives' of the decedent at her death. Barbara Heisey died September 12th 1862, without issue, having made a will, which was proved February 23d 1864; from the decree of probate there was no appeal. By her will she gave her brothers and sisters her share of the money charged upon her father’s real estate, and payable at the death of her mother, and appointed the defendants her executors ; letters testamentary were issued to them. Anna, the widow of Martin Nissley, the decedent, died in March 1872.
    On the 21st of December 1872, Heisey, the surviving husband, notified the defendants, as executors, &c., of Barbara Heisey, and as 'owners of the land, that he claimed the whole of his wife’s share in the widow’s dower, and “ that he refused in any way to recognise the will of Barbara Heisey, and claimed all his rights in and to her estate to which he was by law entitled.”
    The amount charged on the real estate during the life of the widow of Martin Nissley was $8064.08; the one-sixth to which Barbara Heisey was entitled was $1846.91.

      “ The question for the court to determine, under the above state of facts, without regard to the form of action, is whether the plaintiff’s testator, Daniel K. Nissley, was entitled to the above sum in dispute or any part thereof. If the court should be of the opinion that the plaintiff is entitled to the whole of said money, they will render judgment in his favor against Joseph W. Nissley and Martin Nissley, the defendants, for the sum of $1846.01, with interest from the 1st day of April A. D. 1872, and costs. If of the opinion that plaintiff is entitled to only the one-half, they will render judgment against the defendant for the sum of $673, with interest from the 1st of April a. D. 1872, and costs. If of the opinion that the plaintiff is entitled to any other sum, they will render judgment in his favor for such sum as the plaintiff is entitled to, with costs. And if of the opinion that the plaintiff is not entitled to any portion of said money they will render judgment for the defendants, with costs.”
    Livingston, P. J., delivering the opinion of the court, said: * * *
    “ The real estate, out of which this fund arises, at the death of Martin Nissley, on March 19th 1834, vested as real estate, in all his children, among whom was his daughter Barbara, who after-wards became the wife of Daniel K. Heisey, and was so held by them until after her marriage. After she married, by reason of its acceptance by Joseph W. Nissley and Martin Nissley, and of their entering into a recognisance, with security approved by the Orphans’ Court of Lancaster county, for the payment to the other heirs of their respective portions of the valuations of the money, the title to said real estate became wholly vested in them, and the title of the other heirs thereto wholly divested. One-third of the valuation money was charged on each purpart during the life of the widow of Martin Nissley, deceased, and not payable to the heirs until after her decease. That these thirds, this money now in dispute, after the acceptance of the property and its being made a charge thereupon by the court, was personal property, is not disputed. It was a portion of her share, of her intestate father’s estate, secured by a recognisance in the Orphans’ Court. At the time this money vested in Mrs. Heisey, the 48th sect, of Act of the 29th of March 1882, had been enacted and was in force. * * * This may be termed the first act securing the rights of married women in Pennsylvania, and under it the Supreme Court held that the declaration and separate examination of a married woman, required by this act, to entitle her husband to the share of her intestate father’s estate, secured by recognisance in the Orphans’ Court, must be filed during the lifetime of the wife, otherwise at her death it will go to her heirs at law. No such certificate having ever been procured or filed, this continued to be the property of the wife, and never was reduced to the possession of the husband. As her property she might have disposed of it by will under the Act of 1883, with the assent of her husband, but not otherwise. It continued to be her property therefore at the time of the passage of the Act of April 11th 1848, securing the rights of married women; and sect. 7th of this act declares ‘that any married woman may dispose by her last will and testament, of her separate property, &c., W'hether the same accrues to her before or during coverture, provided her will be executed in presence of two witnesses, neither of whom shall be her husband.’ It also provides, sect. 9th, that in cases of intestacy the husband shall be entitled to letters of administration, and if she leave no child or children, nor the descendants of children living, the husband is entitled to her personal estate absolutely. Under the provisions of this act a married woman was permitted to dispose of her whole separate estate to the entire exclusion of her husband, and thus the law remained until 1855, May 4th, when the legislature passed an act which declares “ that the power of any married woman to bequeath or devise her property by will shall be restricted, as regards the husband, to the same extent as the husband’s power, so to dispose of his property, is restricted as regards the wife, namely: so that any surviving husband may, against her will, elect to take such share and interest in her real and personal estate, as she can, Avhen surviving, elect to take against his will, in his estates, or otherwise, to take only her real estate as tenant by the curtesy.
    “ In order to enable a widow to take against or contrary to the will of her husband, it is necessary for her to make her election, and to enable her to do this the law gives her twelve months after his decease, and before the expiration of that period she cannot be called upon nor compelled to do so, and the better to enable her to do so she can compel the exhibition of a true inventory and fair account of the estate by the executor. After the expiration of twelve months from the death of the testator the1 Orphans’ Court may, on application of any one interested in the estate, issue a citation to such widow to appear at a certain time, not less than one month thereafter, in said court, to make her election, and if she neglect or refuse to appear upon such citation, upon due proof of service to the court, such neglect or refusal shall be deemed an acceptance of the bequest, &c. And, as the widow and surviving husband are placed upon an equality in regard to the quantity of interest they are to have or may take in the estates of each other, it appears to us but fair that such should he held in the same time and mode of election, and that the husband should be allowed twelve months after the death of his wife within which to make up his mind, and that before doing so he should have a right to compel the exhibition of a true inventory and fair account of the estate by the executors, and if, at the expiration of that time, he fail to elect he should be cited to do so by some one interested in the estate, &c. In the case before us, although Barbara Heisey died in 1862, on the 12th of September, her will was not proved until February 23d 1864, and the executors, for aught that appears in the case stated, have exhibited no inventory in the register’s office, nor have they, nor any one interested in the estate, ever even requested, much less cited, the husband to elect whether or not he would take under the will or the law; but on the contrary he gave them written notice that he would not recognise the will, and that independent and outside of her will he -claimed all his rights in and to her estate to which he was by law entitled. This notice was given soon after the death of the widow of Martin Nissley, at whose decease said money became payable, and before its payment to the executors, and before any inventory was filed by them.
    “We are, therefore, of opinion:—
    “1. That this money did not belong absolutely to the husband of Barbara Heisey by virtue of his marital rights merely.
    “ 2. That at the time Barbara Heisey died it was her separate property, and would pass under her will, subject to the rights of her husband under Act of Assembly of 1855.
    “ 3. That the husband, under the facts set forth in the case stated, gave to the executors of the will of Barbara Heisey sufficient notice of his election to claim under the law and refuse the provisions set forth in her will, and gave this notice sufficiently early to enable him to do so, and that he has not in any way waived his right to make such election.
    “ 4. That under the law he is entitled to have and to take one-half of the personal estate of his deceased wife, after payment of debts, expenses, &c.
    “ And accordingly we render judgment in favor of the plaintiff and against the defendant for one-half the sum stated, to wit: for the sum of $673, with interest from April 1st 1872, and costs of suit.”
    Both parties appealed to the Supreme Court.
    The executors of Heisey assigned for error that the court had not rendered judgment in their favor for the “ one-sixth part of the money charged during the life of Anna Nissley,” with interest, &c.
    The defendants assigned for error that the court did not give judgment for the defendants.

      A. Hen~ Smith, for Nissleys.
    There being no appeal from the decree of probate, the plaintiff is concluded: Logan v. Watt, 5 S. & R. 213; Holliday v. Ward, 7 Harris 489; Thompson v. Thompson, 9 Barr 234; Loy v. Kennedy, 1 W. & S. 396; Hegarty’s Appeal, 25 P. F. Smith 512; Lovett v. Matthews, 12 Harris 332. Mrs. Heisey’s share was a chose in action, which her husband might have reduced to possession: Webb’s Appeal, 9 Harris 248. The husband delayed too long in electing to take against the will: Bradley v. Bradley, 4, Whart. 173 ; Burk v. Gleason, 10 Wright 297.

      D. Gf. Hshleman and H. HllmaJcer, for Eyer.
    A widow’s right in her husband’s real estate, under the Act of 29th March 1832, is an interest in land: Kurtz’s Appeal, 2 Casey 465; Zeigler’s Appeal, 11 Id. 189 ; Schall’s Appeal, 4 Wright 177 ; Gourley v. Kinley, 16 P. F. Smith 273. When the heirs are claiming the widow’s right after her death, it is not improperly called a lien upon land : Medlar v. Aulenbach, 2 Penna. R. 358; Hise v. Geiger, 7 W. & S. 275; Kline v. Bowman, 7 Harris 24. So'far as the chidren of Martin Hissley were concerned, this money charged during the lifetime of their mother was personal property, and Barbara Heisey’s share was a chose in action, which her husband had the right to sell and assign at any time during her lifetime: Siter’s Case, 4 Rawle 468; Shay v. Sissaman, 10 Barr 432. The Act of April 11th 1849 does not affect this case, because the rights of the husband were vested before its passage; Boose’s Appeal, 6 Harris 393; Peck v. Ward, Id. 509; Stehman v. Huber, 9 Id. 262 ; Bachman v. Chrisman, 11 Id. 163 ; Martha Mann’s Appeal, 14 Wright 381. The plaintiff’s intestate having had a vested interest in said money before the passage of the Act of 1848, his wife could not dispose of it by will. Being personal estate, she might have disposed of it with the assent of her husband, under the Act of 8th April 1833, Pamph. L. 248. There being no such assent of the husband, the will of Barbara Heisey was void; and her husband having survived her, was entitled to administration of her estate: Act March 15th 1832, sect. 22, 1 Br. Purd. 410, pi. 27. If a husband takes administration upon the estate of his wife he will be entitled, as administrator, to all her personal estate in action at her death: 1 Wms. Ex. 778, 779; Clay v. Irvine, 4 W. & S. 232; Stewart v. Stewart, 7 Johns. Ch. 229; Jones v. Warren, 4 Dana (Ky.) 334; The Fourth Ecclesiastical Society v. Mather, 15 Conn. 587, 588. Any other than the husband taking letters of administration, holds as trustee for the husband: Clark v. Clark 6 W. & S. 85; Whitaker v. Whitaker, 6 Johns. 112.
   Judgment was entered in the Supreme Court, May 17th 1875,

Per Curiam.

The wife’s property was realty until converted into personalty by the proceeding in partition. But the moment conversion took place the proceeds came under the Act of 29th March 1832, which forbade its payment to the husband without the written consent and separate examination and acknowledgment of the wife, which never existed. Consequently the money never vested in the husband. When the Act of 1849 took effect the money still remained to the wife as her own. Hence she had the power to dispose of it by will, subject only to the right given to the husband by the Act of May 4th 1855, to take his share against her will, which share was one-half on her decease without issue. We see no error to be corrected.

Judgment affirmed in both of the above cases.


author: Mr. Justice Shapes wood

text:
    Collins versus Smith.
    1. Collins by agreement under seal with Murphy sold him a boat undei’going repair, for part cash and the remainder in payments of $20 per month, Collins reserving the “ right and possession of the boat till the whole was paid, Murphy having the right to sell the boat upon paying Collins what might be due on it.” Murphy paid part of the purehase-money and after-wards Smith paid part of the balance, and then endorsed on the agreement, that he agreed to enter into a partnership with Murphy, “ on the within agreement, and account to Collins for the full amount of the agreement.” In an action of assumpsit in the common counts under the general issue by Collins against Smith to recover the balance due: Held, that the agreement and endorsement were evidence.
    2. Smith, by the endorsement, made the original contract with Collins his own.
    3 The non-joinder of a co-contractor can be taken advantage of only by plea in abatement.
    4. If the declaration is on an individual contract, a joint contract is not a variance.
    5. Bellas v. Ragely, 7 Harris 275; Chorpenning v. Royce, 8 P. P. Smith 474, approved.
    May 5th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 74, to May Term 1875.
    This was an action of assumpsit, brought January 10th 1862, by Abraham Collins against Henry H. Smith. The declaration was in the common counts ; the defendant pleaded non-assumpsit, and payment with leave and set off.
    The case was tried February 8th 1875, before Livingston, P. J.

      The plaintiff offered in evidence the following agreement under seal:—
    “Articles of agreement, made and entered into this 7th day of August a. d. 1857, between Abraham Collins, merchant, &c., of the one part, and James Murphy, of, &c., boatman, of the other part, as follows: The said Abraham Collins promises and agrees to sell, and hereby doth sell to the said James Murphy, a certain boat, named Elizabeth Collins, now undergoing repairs on the dock, for the sum of three hundred dollars. One hundred dollars of said purchase-money to be cash, the remaining two hundred dollars to be paid in payments of twenty dollars each month during boating seasons, with interest at six per cent, on all moneys unpaid, the said Abraham Collins reserving the right and possession of said boat until the full sum of three hundred dollars is paid, with interest as above named.
    “ The said James Murphy hereby covenants and agrees to pay the said Abraham Collins the sum of three hundred dollars, in payments above mentioned. The said James Murphy promises and agrees to pay to Abraham Collins the repair bill for repairing the said boat, amounting to-, in addition to the three hundred dollars purchase-money. The said James Murphy reserving the privilege to sell the said boat at any time he sees proper, providing he will pay all moneys due to Abraham Collins arising out of sale of said boat.”
    There were endorsed on the agreement three receipts for payments by Murphy amounting together to $180. Also, a receipt dated October 4th 1858, for $250 from H. H. Smith.
    Also, the following: “ I, Henry H. Smith, of, &c., do hereby agree to enter into copartnership with James Murphy on the within agreement, and account to the within named Abraham Collins for the full amount of the within agreement.
    October 4th 1858. Henry H. Smith.”
    The offer was objected to by defendant, rejected by the court and a bill of exceptions sealed.
    The plaintiff then offered to prove that on the 4th of October 1858, the plaintiff having in his possession the boat owned by him, sold and delivered it to the defendant, and that he retained it; that the price was $605.95, on which plaintiffs had received $430, leaving $175.95 due.
    • Also, that this boat had been sold by the plaintiff to James Murphy, and delivered to him in August 1857. That in September 1858 Murphy returned and surrendered the boat to the plaintiff. That the surrender was accepted by the plaintiff. That the plaintiff subsequently, with the knowlege and consent of Murphy, sold and delivered the same boat to H. H. Smith, the defendant, to be followed by evidence that James Murphy and H. H. Smith were not then partners, nor subsequently ?

      These offers were objected to because the agreement was, on October 4th 1858, reduced to writing.
    The offers were rejected and several bills of exceptions sealed.
    Plaintiff offered to prove by James Murphy that, on October 4th 1858, .he was not a partner of Smith, the defendant, nor was he a partner of defendant prior nor subsequent thereto ; and that he was not a party to the sale of the boat by plaintiff to defendant on October 4th 1858 ; and that by said sale to Smith, the defendant, witness acquired no interest in the boat; that the purchase by defendant was exclusively on his account, to be followed by the written paper before ruled out. This was objected to by defendant, rejected by the court and a bill of exceptions sealed.
    There were similar offers made and rejected, and the plaintiff having closed, the verdict was for the defendant.
    The plaintiff took a writ of error, and assigned for error the rejection of his several offers of evidence.

      R. M. North (with whom was Gr. M. Kline), for plaintiff in error.
    —The agreement showed that it was the individual contract of Smith ; and if it had been joint, it could have been taken advantage of only by plea of abatement: Chorpenning v. Royer, 8 P. F. Smith 474; Bellas v. Fagely, 7 Harris 275.

      0. J. Dickey, for defendant in error.
   Mr. Justice Shapes wood

delivered the- opinion of the court, May 17th 1875.

The action being indebitatus assumpsit, and the narr. containing a count for goods sold and delivered, the agreement of August 7th 1857, with the endorsement thereon, and the paper signed by the defendant, also endorsed thereon, was, we think, admissible in evidence as an executed contract for the purchase of the canal-boat named in the agreement, upon the terms therein specified. Giving entire assent to the contention of the defendant that he thereby entered into copartnership with the- original contractor, he made the contract his own contract, even if he had not expressly agreed, as he did, to account to the within-named Abraham Collins for the full amount of the within agreement.” Was it any answer to the action to set up that there was another person liable to him on the contract jointly with him ? There is nothing better settled than that the non-joinder of a co-contractor can only be taken advantage of by a plea in abatement. It would be ah affectation of learning to cite authorities for this proposition. We have our own cases of Bellas v. Fagely, 7 Harris 275; Chorpenning v. Royer, 8 P. F. Smith 474 — full to the point. Nor does it matter that the declaration is upon an individual contract. A joint contract is not at variance with the count. It is still the undertaking of the defendant m solido; though being with another, he has the right to have that other brought in, but only in the very first stage of the cause, by plea in abatement. Had the written evidence been admitted, as it ought to have been, the other offers would have been unnecessary; and certainly the learned judge was right in rejecting them, as the contract was in writing.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Gordon

text:
    Numbers versus Shelly et al.

    1. Judgment was recovered against Shelly on a note, waiving the $300 exemption, the declaration setting out the waiver. He made an assignment for benefit of creditors; in the distribution of his estate in the hands of his assignees the $300 was awarded to him. In an attachment execution against him, his assignees being garnishees, Shelly pleaded the decree of distribution. Held, on the trial of this issue, that the declaration in the suit in which the judgment was recovered was evidence of the waiver.

      A. Inasmuch as a record as a whole imports verity, every part of it is admissible to prove that which it legitimately sets forth.
    3. The waiver was pertinent and material in the issue trying.
    May 5th Í875.
    Before A anew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 84, to May Term 1875.
    This was an attachment-execution issued September 2d 1871, by Joseph W. Numbers against Abraham F. Shelly and T. N. Brubaker, in which Benjamin McOutchen and C. W. Brubaker, assignees, &c., of Shelly, were garnishees. On the 22d of September 1871 interrogatories were filed. On the 18th of December 1871, McOutchen, one of the garnishees, filed this answer :—
    “ In answer to all the interrogatories filed by plaintiff in the above case, I say; that as one of the assignees of said Abraham F. Shelly, I have in my hands $300, awarded to said Shelly, assignor, on his claim made before the audit on distribution, which was confirmed by Court of Common Pleas, September 1st 1871; and which said sum assignor and his counsel now claim from me. This is all the money coming or due Abraham F. Shelly, the defendant, in my hands, from any and all sources,” &c.
    On the 21st of December 1871, Shelly one of the defendants in the execution filed a special plea, setting up his right to the $300, under the exemption law. A replication was filed April 24th 1872.
    The case was tried January 31st 1875, before Livingston. P. J.
    The plaintiff gave in evidence the record of an action to February Term 1870 of the. court below, Joseph W. Numbers against T. N. Brubaker and A. F. Shelly. The declaration -was :— * * * “ And the said plaintiff demands of the said defendants the sum of $260, which the said defendants owe to and unjustly detain from the said plaintiff. ■ For that whereas the said defendants heretofore, to wit, on the 23d day of February, -a. d. 1869, at the county aforesaid, by their certain writing obligatory, commonly called a noté under seal, sealed with their seals, and now shown to the court here, the date whereof is the day and year aforesaid, for value received promised to pay the said plaintiff the sum of $260 above demanded, in ten months after the date thereof, at the Union National Mount Joy Bank, in said county, which period has now elapsed. And the said defendants therein for themselves and their legal representatives, thereby waived and relinquished unto the said plaintiffs and his legal representative, all benefit that may accrue to them by virtue of any and every law made or to be made, to exempt any of their property or estate from levy and execution, or any part of the proceeds arising from the sale thereof, from the payment of said moneys, or any part thereof. Yet, &c.”
    Shelly’s special plea was.:—
    “ That he claimed the moneys attached, in the above case, before ' the auditor appointed by the court to distribute the moneys in the hands of said Benjamin McCutchen, as one of the- assignees of said defendant, which said auditor allowed to him, as against all his creditors ; which report of the auditor was confirmed by the court, September 1st 1871, and is now a final decree of said court, remaining unreversed, and that he, the said defendant, still claims the said $300 so attached as against this attachment.”
    On the trial of that suit the plaintiff recovered ajudgment against the defendant for $293.80.
    Plaintiff gave in evidence also the record of the distribution of the assigned estate of Shelly, by which the $300 was awarded to him under the exemption laws, he having reserved it in his assignment.
    The plaintiff then rested; the defendants offered no evidence.
    The defendant’s third point was.
    Plaintiff produced no evidence showing that defendant waived his right to the $300 exemption.
    The court charged :—
    “ It has been shown and admitted, in this case, that the sum of $300 awarded by the auditor to the defendant, A. F. Shelly, ivas awarded to him under his claim to the benefit of the exemption laws, in the deed of assignment made by him for the benefit of his creditors. An attachment was issued by the plaintiff, in this casé, to attach this sum, so exempted and allowed, and known by him to be so, upon the ground that the obligation given him by defendant, and upon which he obtained the judgment upon which his attachment issued, waived the exemption.

      “ Several points have been presented by defendant, one of which only we find it necessary to answer. It is the third point, and is as follows : Plaintiff has produced no evidence showing that defendant waived his right to the $300 exemption. This we answer in the affirmative. The plaintiff has offered the records of’his judgment, it furnishes no such evidence. He has also produced his narr., which is an allegation of plaintiff’s claim against the defendant, and the nature of such claim; and before he could obtain judgment he would be obliged to furnish proof to the court of all the material allegations in the narr. The narr. now produced proffers -to the court (and says, now shown to the court) the note, the evidence. The note is not shown here; the narr. is a mere allegation and not evidence of a fact. This point taken is correct, there is no evidence before this court or jury that defendant waived the exemption in the note upon which plaintiff’s judgment was obtained, and therefore your verdict must be for defendant.”
    The verdict was for the defendant.
    The plaintiff took a writ of error, and assigned for error:—
    1. The answer to defendant’s third point.
    2. The pleadings and record show that the defendant’s claim for the $300 exemption ivas made by a special plea to the scire facias, more than three months after the return-day of the writ, and after the interrogatories and answers were filed, and.therefore too late, and this question being raised on the trial, the court was in error in directing a verdict for the defendant.

      A. J. Ebe-rly, for plaintiff in error.
    The claim for exemption was too late: Bair v. Steinman, 2 P. F. Smith 423; Strouse v. Becker, 8 Wright 206. The waiver was a material part of the note, and the judgment having been recovered on it, the declaration was necessary to show that the waiver was included.

      W. R. Wilson (with whom were J. B. Amwake and W. $. Amweg), for plaintiff in error.
   Mr. Justice Gordon

delivered the opinion of the court, May 24th 1875i

Abraham E. Shelly, one of the defendants, made his deed of assignment to Benjamin McCutchen and Christian W. Brubaker, for the benefit of his creditors, reserving therein the amount ($300) exempted from levy and sale under the Act of 1849. Upon settlement of the account of the assignee, this amount was awarded to Shelly, but before it was paid over to him it was attached by the plaintiff in the hands of the assignee. In order to support this attachment, the plaintiff gave in evidence the narr., in which was recited, as the foundation of the suit, a note under seal, executed by the defendants, with waiver of exemption. The learned judge of the Common Pleas held that the allegation of waiver of exemption contained in the narr. was not evidence of that fact, and so ruled the case against the plaintiff. In this we think there was error. The whole record was admissible, and the narr. was part of the record: Erb v. Scott, 2 Harris 20. As the judgment was evidence, so was also the declaration, for by it that upon which the judgment was founded would appear. We apprehend that as the record, as a whole, imports verity, so every part of it is admissible to prove that which it legitimately sets forth. It is no doubt true that where the narr. contains allegations not pertinent or material to the case, such allegations would not be admissible. Such, however, was not the case with the matter in hand. The waiver as set forth was not only pertinent and material, but it was part of the record: Hageman v. Salisberry, 24 P. F. Smith 280.

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


text:
    Hess versus Beates.
    1. Under the Domestic Attachment Act of June 13th 1836, sect. 20, the wife of the debtor may retain $300 worth of his property.
    2. Her right is not affected by her husband's waiver of the exemption; the law withdrawing the property from the grasp of his creditors, and allowing it to his wife and family, it ceased to be his property for the purposes of execution.
    3. Under a domestic attachment, $300 worth of goods were set apart to the wife; an execution was issued against the husband on a judgment waiving the exemption, and the same goods levied on and sold. In an inter-pleader proceeding, it was Held, that the wife was entitled to all the proceeds, and the execution creditor was directed to pay all the costs, including the sheriff’s and the costs in error.
    4. After the goods were sold, the money was ruled into court, and an inter-pleader rule on the wife was obtained by the sheriff; she filed an affidavit claiming the property, and an issue was directed: Held, that the proceedings were informal, but the wife having appeared and claimed the property, the parties were within the provisions of the Interpleader Act, and the money in court was substituted for the goods.
    5. Under the discretion given by the Interpleader Act, the court could do justice between the parties, including the disposition of the whole costs.
    May 5th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1875, No. 88.
    On the 28th of January 1874, a writ of domestic attachment was issued at the suit of Jonas B. Nolt against Jonas Hess; the sheriff returned that he had attached all the goods and chattels of the debtor, that Elizabeth Hess, the wife of the defendant, claimed $300 under the exemption laws, and that he had set apart for her goods to that amount; he returned a list of-the goods with the writ.
    On the 2d of February 1874, Henry Beates, the defendant in error, issued a-,fi. fa. against Jonas Hess, under which the sheriff levied on the property which had been set apart under the domestic attachment for Mrs. Hess, and sold it February 18th. The judgment on which the fi. fa. was .issued was entered to January Term 1872 of the court below, on a bond with warrant of attorney, containing a waiver by the defendant of the $300 exemption. On the 20th of April the proceeds of sale, $240.85, less $34.72 costs, were ruled into court.
    On the 19th of May 1874 the sheriff obtained a rule upon Mrs. Hess “ to maintain or relinquish her right to the proceeds realized out of the property sold on the fi. fa.” May 23d, Mrs. Hess filed an affidavit claiming the property as hers.
    An issue, in which Mrs. Hess was plaintiff and Beates defendant, was framed under the Interpleader Act to try the title to the money in court. All the facts were set out in a case stated, which was filed in the interpleader issue.
    The court below, Hayes, J., delivered the opinion of the court, in which he said: * * *
    “ The waiver of exemption by Jonas Hess was made in the bond to Henry Beates, as before mentioned, and according to the decisions it is as binding as any part of the obligation. The money in question was made by the levy and sale under the execution, issued by Henry Beates upon the judgment entered upon tho bond. The wife of the defendant asks that she may receive it on her claim of the exemption of $300 ; but she is precluded by the waiver. Indeed, it does not appear that she claimed the exemption, under the execution or against it; her claim was on the attachment issued by Jonas Nolt; but the property was sold under the execution by the sheriff, who levied upon it by virtue of that writ for the purpose of making the money ; and the money, as the case states, was made by that sale. We are accordingly of opinion that under the statement of facts Henry Bates, plaintiff in the said execution, is entitled to the money in question, and we award to him the same.”
    The plaintiff took a writ of error and assigned for error, the judgment of the court awarding the money to Henry Beates.
    W. Liffhtner, for plaintiff in error.
    A defendant in a domestic attachment has no right to anything under the exemption laws: McCarthy’s Appeal, 18 P. F. Smith 217 ; Yelverton v. Burton, 2 Casey 354. A waiver of the exemption is of no value after a domestic attachment: Johnson.& Sutton’s Appeal, 1 Casey 116. A fi. fa. issued after a domestic attachment acquires no hold of defendant’s property ; Act of June 13th 1836, sect. 19, Pamph L. 610, 1 Br. Purd. 521, pl. 23. Under a domestic attachment the wife and family of the debtor are entitled to retain such articles, &c., as are exempted by law : Id. sect. 20, pl. 24 ; McCarthy’s Appeal, supra ; Kenyon v. Gould, 11 P. F. Smith 292. The setting apart of the property by the sheriff was conclusive of the wife’s right to it: Runyan’s Appeal, 3 Casey 122; Spencer’s Appeal, Id. 218.

      A. 0. Newpher, for defendant in error.
    The Act of April 9th 1849, sect 1, Pamph. L. 533, 1 Br. Purd. 636, pi. 20, repeals the exemption of 1836. Any one having charge of debtor’s property in his absence may claim the exemption : Wilson v. McElroy, 8 Casey 82 ; Waugh v. Busket, 3 Grant 319. The debtor’s waiver is valid against him and all other persons: Dodson’s Appeal, 1 Casey 232; Pittman’s Appeal, 12 Wright 315 ; Thomas’s Appeal, 19 P. F. Smith 120. The wife not having claimed the exemption under the execution is not entitled to the money : Bechtel’s Appeal, 2 Grant 375. The defendant is entitled: McClelland v. Slingluff, 7 W. & S. 134; Commonwealth v. Contner, 6 Harris 439; Schuylkill County’s Appeal, 6 Casey 358.
   Mr. Justice Paxson

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

It is very clear that Elizabeth Hess, the plaintiff in the case stated, was entitled to retain for the use of herself and family the articles appraised and set apart to her under the domestic attachment. The 20th sect, of the Act of 13th June 1836, relating to domestic attachments, provides: “ That the wife and family, if any, of such debtor, shall be entitled to retain for their own use such articles as may by law be exempted from levy and sale on execution.” Her right was not affected by her husband’s waiver of exemption. Such waiver was undoubtedly good against him, but is of no avail as against his wife and family when his property is seized upon a domestic attachment. In such case the law withdraws the property to the extent of the exemption from the grasp of his creditors, and allows it to remain with his wife and family for their use. The articles claimed by the wife, and set apart to her under the exemption, ceased to be the property of the husband for the purpose of execution.

The seizure and sale of this property by the sheriff upon the execution against Jonas Hess, was illegal, and but for the Act of 10th April 1848, would have rendered him liable to an action of trespass. Under the provisions of said act, however, he entered a rule upon Mrs. Hess, to come into court “ to maintain or relinquish her right to the proceeds realized out of the property sold under the execution.” Mrs. Hess appeared to this rule, and filed an affidavit claiming the property. The proceedings under the Interpleader Act are informal, but are, nevertheless, sufficient to bring the parties within its provisions. Their effect would seem to be to substitute the proceeds of the sale for the property sold. We have already said that Mrs. Hess was entitled to the property. The fund in court is the net proceeds of the sale, the costs of the plaintiffs in the execution and the sheriff having been deducted. It is not right that either the execution creditor or the sheriff should profit by his own wrong. It would be a hard rule to compel Mrs. Hess to pay the expenses of this unlawful sale of her own property. The Sheriff’s Interpleader Act is broad enough in its terms to meet the justice of this case. It provides that the court shall exercise “ all the powers and authorities necessary, and make such rules and decisions as shall appear to be just, under the circumstances of the case, and the costs of all such proceedings shall he in the discretion of the court,” &c. With all the parties before us, our way is clear under this act to do substantial justice. Mrs. Hess is plainly entitled to the entire proceeds of sale. Even this is but an inadequate compensation. The costs and expenses ought not to fall upon the sheriff, whom we may assume to have acted under the directions of th§ execution creditor. Whatever costs may have been incurred should be paid by the latter.

The jugdment is reversed, and it is ordered that the entire proceeds of the sale, amounting to $240.85, be paid to Elizabeth Hess, the plaintiff; the costs in error and the costs below, including the sheriff’s costs, to be paid by Henry Beates, the plaintiff; and that the record be remitted to the court below, with instructions to carry this decree into effect.


author: Mr. Justice Sharswood

text:
    Reck’s Appeal.
    1. All mere technical rules of construction must yield to the expressed intention of a testator, if the intention be lawful.
    2. A bequest was : “ my wife to receive the interest of $1000; * * * and should the interest of the same be insufficient to provide for her, then as much of the principal as may be required. * 'x‘ * After the death of my wife, the balance of the $1000 to bo disposed of as the balance of my other property.” The interest was insufficient for her support; she made a contract with Reck for her maintenance during life, but she made no demand for any of the principal: Held, that Reck could recover after her death the amount due him from the husband’s executors out of the $1000.
    3. The remaindermen took a vested interest at the testator’s death, only in the balance of the $1000 remaining after providing for her maintenance.
    4. After her death Reck recovered judgment against her administrator for her maintenance: Held, that in a proceeding against the executors, this, in absence of collusion, was evidence of the correctness of his claim.
    May 6th 1875.
    Before Agnew, C. J., Sharswood, Merctjr, Paxson and Woodward, J J.
    Appeal from the Orphans’ Court of Adams county: Of May Term 1875, No. 63.

      In October 1874, John Blocher, administrator, &c., of Elizabeth Blocher, deceased, petitioned the Orphans’ Court of Adams county, setting forth that Joseph Blocher, late of that county, deceased, by his will, proved June 22d 1866j directed that after his debts, &c., should have been paid, all the rest of his real estate should be sold: he then directed as follows:—
    “ It is my will that my beloved wife, should she be living at the time of my decease, receive the interest of $1000, being put to interest by my executors out of the purchase-money of my real estate; and should the interest of the same be insufficient to provide for her, then as much of the principal as may be required. Item.— It is my will and I do hereby direct that the proceeds of my estate, both real and personal, not otherwise herein disposed of, shall be divided to and among my three children, namely, my son Daniel Blocher, my son John Blocher, and my daughter Mary, intermarried with John Reck, share and share alike. * * * After the death of my beloved wife the balance of the thousand dollars to he disposed of the same as the balance of my other property; and I do hereby make and ordain my son John Blocher, and my brother’s son Eli Blocher, executors of this my last will and testament.” * * *
    The executors sold the real and personal estate of the testator, invested $1000, and paid the widow the interest annually on the 1st days of April 1868, 1869 and 1870; she died intestate in Huntingdon county, and administration of her estate was granted there to John Blocher. A suit was brought in that county against the administrator by John Reck, No. 53, to the April Term of the Court of Common Pleas, for the support, funeral expenses, &c., of the widow — she having made no claim for any portion of the fund in her lifetime — and judgment was recovered by Reck against the administrator for $509.50. The petitioner settled his account in Huntingdon county as administrator, charging himself with $50, the interest on $1000, which had accrued at the widow’s death. Reck filed exceptions to'the account, asking that the accountant should be surcharged with so much of the principal of the $1000 in the hands of the executors of Joseph Blocher, deceased, as would pay the judgment and costs; the auditor, to whom the exceptions were referred, made a report, which being under consideration on exceptions, the Orphans’ Court of Huntingdon county held the matter under advisement until the Orphans’ Court of Adams county should make a decree ordering or refusing to order the executors of Joseph Blocher to pay to the administrator, &c., of Elizabeth Blocher, deceased, so much of the principal sum of $1000 as should be sufiicient to satisfy the judgment, &c., recovered by Reck.
    The prayer was that the court would make such order in the-premises as might be right, &c.
    The executors, &c., of Joseph Blocher joined in the prayer of." the petition, but represented it as their opinion, as they had been advised, that the court ought not to require such payment to be made by them.
    On the 8th of November 1874, the Orphans’ Court of Adams county granted a rule on the parties interested to show cause why a decree should not be made requiring the executors, &c., of Joseph Bloeher, deceased, to pay to Reck out of the $1000 so much as would satisfy his judgment.
    The executors also answered, admitting substantially the fact's in the petition: They also set out that the widow, on the 1st of April 1867, made a verbal agreement with Reck for her support and maintenance during life, and that she resided with him till her death; they then set out the suit and the judgment in favor of Reck, &c.
    They averred:— (
    “ That the suit brought by plaintiff only determines the contingency provided for in the will of Joseph Bloeher, as to the $1000, and that the $1000 did not become a vested legacy at the death of Elizabeth Bloeher, but upon the determination of the amount due for support and maintenance.”
    The statement filed in the suit by Reck against the administrator of the widow was :—
    Eor boarding from April 1st 1867. to February 1st 1871 . $866 For cash paid physician for her medical attendance . . 4
    For expenses, boarding guests at funeral, &c., ... 20
    For coffin......... 22
    $912
    The court discharged the rule, Wills, P. J., saying, in concluding his opinion:—
    “ Elizabeth Bloeher might have used the whole of the principal for her support, and this would have defeated the estate, but still it was a contingent future event which did not change the original vested character of the estate. This then being a vested estate, the interest of the legatees in remainder could be divested only by Elizabeth Bloeher, the cestui que trust in her lifetime demanding from the executors the principal for her support and receiving the same. It was a matter personal to her. There could not be an implied contract raised on this to divest the interest of the legatees in remainder after the death of the widow. ' When she contracted the debt for boarding, it was a personal claim against her, and the trust.fund could only be reached to pay it through her personal demand on the executors.”
    Reck appealed to the Supreme Court and assigned for error, that the court erred in discharging the rule to show cause why a decree should not be made directing the executors, &c., of Joseph Bloeher to pay Elizabeth Blocher so much of the principal sum of $1000 as would discharge Reek’s judgment.

      II. IS. Shaffer and II. B. Wood, for appellant.

      B. MeOonaughy, for appellees.
    The legacy vested in the remainder-men at the death of the testator. An estate devised is to be construed absolute rather than contingent, if possible: Manderson v. Lukens, 11 Harris 31; Parkinson’s Appeal, 8 Casey 455. Wherever the preceding estate is limited so as to determine on an event which certainly must happen, and remainder is limited to a person in esse, &c., such remainder is vested: Womrath v. McCormick, 1 P. F. Smith 504; Stehman’s Appeal, 9 Wright 398. Where there is" a distinct bequest of the interest to the widow for life, with .a division of the principal at her death, the legacies in remainder are held to be vested: Provinchere’s Appeal, 17 P. F. Smith 468 ; King v. King, 1 W. & S. 205 ; Reed v. Buckley, 5 Id. 517; Buckley v. Reed, 3 Harris 83; McGill’s Appeal, 11 P. F. Smith 46; Balmain v. Shore, 9 Ves. 507; Monkhouse v. Holme, 1 Bro. C. C. 298. When the time is annexed to the payment, the legacy is deemed vested: McClure’s Appeal, 22 P. F. Smith 414. A bequest 'after death of a particular person, to whom an antecedent interest is given in the same will, marks the time when the gift shall take effect in possession: Chew’s Appeal, 1 Wright 23; Blamire v. Geldart, 16 Ves. 314 ; Horner’s Appeal, 6 P. F. Smith 405; Young v. Stoner, 1 Wright 105; Ross v. Drake, Id. 373.
   Mr. Justice Sharswood

delivered the opinion of the court, May 17th 1875.

All mere technical rules of construction must give way to the plainly expressed intention of a testator, if that intention is lawful. It is a rule of common sense as well as law not to attempt to construe that which needs no construction. The testator in the will before us has said, in plain unmistakable English, that his widow should receive during her life the interest of one thousand dollars, to be put at interest by his executors, “ and should the interest of the same be insufficient to provide for her, then as much of the principal as may be required.” After her death “the balance of the thousand dollars to be disposed of ” the same as the balance of his other property. Nothing but this balance was given over, whatever that balance might be. The children entitled to this balance undoubtedly took a vested interest in it, that is, in case of their death before the widow, their respective shares would have passed to their personal representatives. But what that interest would be, would depend upon what the balance was. It is contended, however, that as the widow made no demand for any of the principal during her lifetime, the whole fund went over. But where is that condition written in the will? The words are, “as much of the principal as may be required to provide for her.” The testator may have well anticipated that a state of things might occur when others must provide for her. He did not mean that as long as the one thousand dollars lasted, she should be thrown upon public or private charity for support. Can it be doubted, then, that a person who has supplied her with necessaries, with nursing, and medical attendance during her last sickness, and a decent Christian burial on her decease, has an equitable claim upon this fund for reimbursement ? It would be to make her sin in her grave to suppose that, with a right to call upon any part of the whole of this fund, she did not intend so to do in order to pay this honest and meritorious creditor. Her administrator then had a right to call for the amount necessary for this purpose. The judgment of John Reck against the administrator, in an action in which he alleged a special contract with the widow for her support, in the absence of any allegations of fraud or collusion with the administrator, was at least primá, facie, if not conclusive, evidence of the justice of the claim. We think, therefore, that the court below erred in refusing to grant the prayer of the petition of the appellant.

Decree reversed, and now it is ordered and decreed that the executors of Joseph Blocher pay to the administrator of 'Elizabeth Blocher such amount of the principal sum of $1000, bequeathed for the support of the said Elizabeth Blocher, as shall be necessary and sufficient to satisfy the debt, interest and costs of the judgment of John Reck in the Court of-Common Pleas of Huntingdon county, No. 53, April term 1874, and that the costs of this appeal be paid by the appellees.