author: Mr. Justice Mercur

text:
    Appeal of Lex, Executor, &c.
    1. The fact of an attachment-execution being issued out of the Common Pleas against a legatee as defendant, and an executor as garnishee, does not afford valid ground for the executor’s refusing to comply with a peremptory-order of the Orphans’ Court, directing him to pay over the amount of the legacy to an assignee, claiming under the legatee by an assignment prior to the date of the issuing of the attachment-execution.
    2. In such case, the Orphans’ Court has full jurisdiction over the distribution of the fund, and has full power to hear and determine all questions arising in the distribution. The mere fact, that the creditor of the legatee has not presented his claim in that forum does not impair the force and effect of its decree.
    February 24th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1881. No. 125.
    This was an 'appeal from a decree directing William Henry Lex, executor of the estate of E. H. Bonsall, deceased, to pay to John Fallon a sum of money awarded to him on the audit of the account of said Lex as executor.
    Edward H. Bonsall died in April 1879, having by his will, dated April 15th 1876, duly proved, bequeathed to his son, Jeremiah Bonsall, a legacy of $1000. The executor filed his account in May 1880; and upon the audit, before Ashman, J., John Fallon presented a claim to the said legacy, founded upon an assignment of it to him by Jeremiah Bonsall, the legatee, dated April 22d 1879. It further appeared by the evidence that on May 13th 1879, an attachment-execution, at the suit of T. B. P. Dixey, executor, &c., issued out of the Common Pleas No. 3, of Philadelphia county, on a judgment in the old District Court of June Term 1865, No. 267, against Jeremiah Bonsall, defendant, and William Henry Lex, executor, garnishee; that interrogatories and answers had been filed, and the cause was then awaiting trial. The plaintiff in said suit did not appear at the audit, although he had notice of it. The auditing judge allowed Mr. Fallon’s claim, and awarded to him the legacy of $1000, with interest. In his adjudication, he said, inter alia, “Under the decision in'Hammett’s Appeal, 3 W. N. C. 416, and the authorities there cited, the auditing judge must allow this claim. The jurisdiction of the Orphans’ Court in the subject-matter is undoubted; and it was not pretended that the attaching-creditor had no notice of the audit. No demand was made for time in which to disprove the claim of Mr. Fallon or to establish that laid in the attachment.”
    Exceptions filed to the adjudication were dismissed by the court, and the adjudication confirmed; whereupon the court, on November 27th 1880, granted a peremptory order on W. II. Lex, executor, directing him to pay the amount awarded to Mr. Fallon. To this order, Lex filed an answer, setting forth that the plaintiff in the attachment suit denies the jurisdiction of the Orphans’ Court, and is proceeding in said attachment suit in the Common Pleas; that he has notified the respondent that in the event of his obtaining •judgment in said suit he will hold the respondent liable for the amount of said legacy. The respondent, fearing that by such conflict of jurisdiction he may be called upon to pay the same amount twice, prayed that the order granted on him might be suspended until the determination of the attachment suit, and further asked the protection of the court in the premises.
    On December 20th 1880, the court entered the following decree: “ The petition or answer of W. H. Lex, executor, having been argued by counsel, the court dismiss the same, and make absolute their order of November 27th 1880.” Whereupon, W. H. Lex, executor, took this appeal, assigning for error the said decree and the refusal of the court to mould its decree so as to protect the rights of the appellant whilst the said attachment is pending and undetermined.

      Frank Kelley and George W. Thorn, for the appellant.
    In Otterson v. Gallagher, 7 Norris 355, this court said that it was not called upon to decide the question, whether an attaching-creditor is compelled to go into the Orphans’ Court with his claim. That question arises here, incidentally, in considering whether the executor will be protected, by paying the money, under a decree of the Orphans’ Court, to Fallon. The doctrine in Hammett’s Appeal, 3 W. N. C. 416, does not apply here. The atlachingcreditor’s claim is here against the legatee, not against the decedent’s estate: Campbell’s Estate, 9 Phila. R. 346. The attachment issued from the Common Pleas a year before the executor’s account was filed in the Orphans’ Court. That court had jurisdiction to decide upon the claim. The plaintiff did not appear at the audit, and denied the jurisdiction of the Orphans’ Court to affect him in a proceeding to which he was not a party. Can the Orphans’ Court oust the jurisdiction of the Common Pleas, deprive the plaintiff of his right to a jury trial, and bind him by decree in his absence ? If not, the executor may have two judgments against him in two courts of competent jurisdiction, for the same matter.

      W. Howard Gendell (John Fallon with him), for the appellee.
    The executor is not a “ party aggrieved” by the decree, and has no right to appeal: Mellon’s Appeal, 8 Casey 130; Stineman’s Appeal, 10 Id. 395; Sharp’s Appeal, 3 Grant 261; Craig’s Appeal, 2 Wright 330; Otterson v. Gallagher, 7 Norris 355. Even if the attaching-creditor obtains a judgment against the executor after he has paid the legacy, under the decree of the Orphans’ Court, he will not suffer, because the judgment would be de bonis testatoris, not de bonis propriis.

    The Orphans’ Court has exclusive jurisdiction in all matters relating to the distribution of decedents’ estates, including the rights of legatees and the validity of assignments of legacies, and including the right to determine the title of contesting claimants to the same fund, as an incident of distribution: Souder’s Appeal, 7 P. F. Smith 498; Dundas’s Estate, 23 Id. 474; Otterson v. Gallagher, 7 Norris 355. The attaching-creditor has the right to appear in the Orphans’ Court and be heard. Whether, in fact, he appears or not, his interest is equally bound by the decree, which is substantially a decree in rem, but if his appearance is necessary in order to an adjudication that shall fully protect the accountant, it was in his power to have cited the attaching-creditor to appear and defend pro interesse suo: Dundas’s Estate, supra; Otterson v. Gallagher, supra. By the Act of 1836, legacies are not attachable. If they were, an attachment before the settlement of an estate would be on a contingency, subject not only to the existence, but to an assignment of the legacy.
   Mr. Justice Mercur

delivered the opinion of the 'court, May 2d 1881.

This appeal is by the executor of Edward H. Bonsall, from a decree commanding him to pay to the appellee a sum of money previously decreed to the Jatter by said court.

The money in contention arises from a legacy bequeathed by said Bonsall to his son Jeremiah. On an audit of the appellant’s account, on the 18th June 1880, before the auditing judge, the appellee claimed this legacy by virtue of an assignment from Jere miah Bonsall, dated 22d April 1879. It also appeared from the evidence there given that on the 13th May 1879, Dixey issued an attachment-execution out of the Court.of Common Pleas No. 3, of said county, against the appellant, executor, as garnishee of Jeremiah Bonsall, on a judgment against the latter. The attachment had been duly served, and was then pending. Although this attachment was given in evidence, yet it is averred in the appellant’s history of the.case that the plaintiff therein did not appear at the audit, either in person or by counsel, and deny the right of the Orphans’ Court to adjudicate upon his right under the attachment, and claim that the jurisdiction of the Common Pleas had attached before the account of the executor was filed. The auditing judge awarded the legacy to the appellee, and the adjudication was confirmed by the Orphans’ Court. No appeal has been taken therefrom. The appellant now interposes that attachment still pending against him as a sufficient reason for not paying the money to the appellee. This involves a consideration of the effect to be given to the decree of distribution made by the Orphans’ Court. It is a court of record. It had jurisdiction over the executor and the fund: Commonwealth v. Judges, 4 Barr 301; Culbertson’s Appeal, 26 P. F. Smith 145. Its decree is conclusive unless appealed from within the time specified by Act of Assembly. It had an undoubted right to distribute the fund in the hands of the executor. It is objected that under the proceedings on the attachment the Common Pleas ousted the Orphans’ Court from its jurisdiction over this fund ; and by Dixey’s declining to appear at the audit he is not affected by its decree. Both these positions are unsound. The proceedings in the Common Pleas did not divest the jurisdiction of the Orphans’ Court to make distribution. Any right to the fund asserted or decided in the Common Pleas must still be presented and passed upon by the Orphans’ Court. It is not only over the person of the claimants that the Orphans’ Court has jurisdiction, but also over the fund. It alone can order its distribution. This necessarily gives it power to hear and determine all questions arising in the distribution. To decide not only between conflicting claims, but if there bo none” such, then who are entitled to the fund. The omission of any one there to present his claim does not impair the force and effect of the decree giving the fund to another. The presumption is, that due notice of the audit was given. It is not denied that Dixey had notice. It is substantially admitted that he had. If he had not, his remedy would be by application to open the decree, and not to resist its execution. We think the alleged apprehensions of the appellant, that the decree of the Orphans’ Court will not fully protect him, are groundless.

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


source: Caselaw Access Project

author:
Mr. Justice Paxson
      Mr. Justice Mercur,

license: Public Domain

text:
    Commonwealth ex rel. Attorney General versus Dumbauld and Roberts.
    1. Judges and associate judges of the Common Pleas are “ officers of the Commonwealth whose j urisdiction extends over the state,” within the meaning of art. III., sect. 5, of the Constitution. The Supreme Court has therefore by virtue of said section of the Constitution original jurisdiction to issue writs of quo warranto to associate judges of the Common Pleas.
    2. Counties having forty thousand inhabitants are by art V., sect. 5, of the Constitution entitled to three privileges. They are, 1. The right to be a separate judicial district; 2. The right to have a resident law judge; and 3. The right not to have associate judges.
    3. When by virtue of the some section, counties containing less*than .forty thousand inhabitants, are attached to those containing such numbers, they are entitled, 1. To have associate judges resident in the county ; 2. To have the president judge of the county to which they are attached preside in their courts.
    4. Such an attachment of one county to another, cannot take away the constitutional right of the county containing forty thousand inhabitants not to have associate judges.
    5. Whether in such case, the voters of the attached county may under the terms of art V., sect. 5, of the Constitution, vote at the election for the president judge, who is to preside in their courts, not determined.
    February 25th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett a,nd Green, JJ. (Reargument.)
    In the Supreme Court of Pennsylvania: Of October and November Term 1880, No. 308.
    Quo warranto, issued by the Supreme Court at the relation of Henry W. Palmer, attorney-general, commanding the sheriff of Fayette county to summon David W. C. Dumbauld and Griffith Roberts to appear and show by what authority they, or either of them, claim to exercise the office of associate judge in and for the county of Fayette. The case was heard on demurrer to respondent’s return to said writ. It was first argued on November 20th 1880, at Pittsburgh, and the court, in an opinion by Mr. Justice Mercur, filed at Philadelphia, January 3d 1881, dismissed the writ. Sharswood, C. J., having been absent at the time of the argument, and Trunkey and Sterrett, JJ., having dissented from the opinion and judgment of the court, a-re-argument was ordered, on application of the attorney-general, and the case was again heard February 25th 1881.
    The several facts and averments set forth in the suggestion and return are recited at length in the original opinion of this court, filed January 3d 1881, by Mr. Justice Mercur, which opinion was as follows:
    This writ of quo warranto was issued on information and suggestion of the attorney-general that said defendants were elected associate judges in and for the county of Fayette, at a general election held in said county on the first Tuesday of November 1876; that afterwards, on the 8th of December 1876, they were commissioned as associate judges in and for said county, to have and to hold the said office, and to exercise the power thereof, by the governor of Pennsylvania, for a period of five years, from the first Monday of January 1877; that they did thereupon assume the duties of the said office, and take upon themselves to exercise all the rights, powers and privileges thereof, and have so continued to do ever since; that the fifth section of the fifth article of the Constitution of this Commonwealth provides that ‘ whenever a county shall contain forty thousand inhabitants, it shall constitute a separate judicial district,’ and that ‘the office of associate judge not learned in the law is abolished in counties forming separate districts;’ that in April 1874, the said county of Fayette contained forty thousand inhabitants, whereupon the legislature of said Commonwealth, on the 9th day of April 1874, enacted a law that the said county of Fayette should be a separate judicial district; that the said county did, in November 1876, and still does, contain forty thousand inhabitants; that the said defendants are not learned in the law, and that, therefore, they do usurp, intrude into, and unlawfully hold and exercise the said office of associate judges.
    On the return day of the writ, the defendants pleaded that the action and cause of action were not within the jurisdiction of this court, wherefore they prayed judgment, &c. This plea was overruled proforma, and the defendants directed to answer; whereupon for answer thereto they say, they admit what is alleged in the suggestion filed as to their election, commission and service as associate judges in and for the county of Fayette, and they also admit that in April 1874, Fayette county had a population of over forty thousand inhabitants ; but they deny that the legislature of Pennsylvania, on the 9th of April 1874, enacted a law that the said county of Fayette should be a separate judicial district. And they aver that the legislature, by the act aforesaid, did enact that the Fourteenth Judicial District of the Commonwealth should be composed of ‘ the county of Fayette, to which the county of Greene is hereby attached,’ and they aver that the fourteenth judicial district is composed of the counties of Fayette and Greene, and deny that the office of associate judge not learned in the law was abolished in the said county of Fayette by the fifth section of the fifth article of the Constitution of Pennsylvania. They therefore deny that they usurp, have intruded into, or unlawfully hold and exercise said office. To this answer the Commonwealth demurred.
    Two important constitutional questions are thus presented for consideration. They arise for the first time under the Constitution of 1874. One relates to our power to issue the writ of quo warranto against the defendants; the other to their right to the office.
    We will first consider the question of jurisdiction. Art. V., sect. 8, declares the jurisdiction of the Supreme Court shall extend over the state, and the judges thereof shall have original jurisdiction * * * “of quo warranto as to all officers of the Commonwealth whose jurisdiction extends over the state.” Thus the original jurisdiction of this court in cases of quo warranto is limited to the class of officers named. It will be observed the language does not declare that those over whom jurisdiction is given shall be “state officers,” but those “whose jurisdiction extends over the state.”
    Although judges are elected within a county or a district, that fact does not make them county officers. They receive their compensation from the state. They are subject to impeachment by the legislature, or on the address of two-thirds of each house, may be removed by the governor. Where the court is composed of a president judge and two associate judges, any two of them.constitute a quorum. These two may be the associate judges in every case except when they compose a court of Oyer and Terminer, then the president must be one. In the exercise of the general jurisdiction given to the court, the president and his associates, as a general rule, are put on a footing of equality as to their powers and duties, whenever two of them act together. While thus sitting they are on the same constitutional footing, and when acting individually their powers are eo-extensive within the limits of their jurisdiction: Leib v. Commonwealth, 9 Watts 200. It was therefore expressly held in this case, that the Court of Common Pleas of each county is a state court, and the office of an associate judge is a state office. It is true that case was decided under the Constitution of 1838, yet there is nothing in the present Constitution changing the legal status of an associate judge not learned in the law; still further, although elected in and for a county or district, the judges constitute a court which, for many purposes, has jurisdiction “ over the state.” Thus they may issue subpoenas for witnesses in any part of the state, and attachments to compel the attendance thereof. So under section 3 of the Act of 13th June 1836, Pamph. L. 572, and its supplement of the Act of 4th March 1862, sec. 1, Pamph. L. 79, they may send their process into any county of the state, and the sheriff of their county to execute it in any action for the recovery of damages, for a trespass or nuisance committed on real estate by a non-resident of the county wherein such real estate is situated. Under section 1 of the Act of 24th April 1857, Pamph. L. 318, in certain cases against an insurance company, the court of the county in which the property insured shall be located, may direct its process to the sheriff of any county in the Commonwealth, and it is made his duty to execute it. It follows that each judge of a Court of Common Pleas is an officer of the Commonwealth whose jurisdiction extends over the state. Neither the Constitution nor any Act of Assembly authorizes a Court of Common Pleas to inquire, by writ of quo warranto, into the title of an associate judge. As we have shown, this power is expressly given by the Constitution to the Supreme Court. We therefore committed no error in overruling the plea to our jurisdiction.
    The remaining question is, the validity of the defendant’s title to the office. Although Art. V., sect. 5 of the Constitution declares “ whenever a county shall contain forty thousand inhabitants, it shall constitute a separate judicial district.” Yet that provision does not execute itself so as to establish a separate district whenever a county attains that number; but merely declares the basis on which, at a proper time and in a proper manner, judicial districts may be created by the legislature : Commonwealth ex rel. Chase v. Harding et al., 6 Norris 343. To hold otherwise would work irreparable mischief and confusion, and be substantially impracticable to carry into effect. The same section declares the office of associate judges not learned in the law, “is abolished in counties forming separate districts.” Giving due effect to each part of the section, and making them harmonize, it is manifest that associate judges not learned in the law are abolished in those counties only which the legislature has constituted separate districts. This brings us to a consideration of the question whether, under the Act of 9th April 18.74, the county of Eayette does form a separate district, or whether the counties of Eayette and Greene together form a district ? The answer to this depends on the effect to be given to the language that the Fourteenth Judicial District shall be composed “ of the county of Eayette, to which the county of Greene is hereby attached.”
    The Constitution is not to receive a technical construction, like a common-law instrument, nor like an act of the legislature. It must be so interpreted as to give effect to the great principles of government which it is intended to secure: Commonwealth v. Clark, 7 W. & S. 127. No such prominence should be given to any one part, as to prevent giving reasonable effect to every other part, or to destroy the harmonious purpose of the whole. It gives to the legislature power to make one county a separate judicial district, and to put any number of counties not exceeding four into one district. The question, therefore, is not whether the legislature had power to constitute Fayette county a separate district; but whether that power has been so exercised?
    It should never be assumed that any act of the legislature was intended to be in conflict with the Constitution, or that it would be violative of any of its provisions. If a statute is alleged to be unconstitutional, the burden of establishing the truth of the allegation is on him who alleges it. While in considering the validity of a legislative act we may not look beyond the Constitution (Sharpless v. Philadelphia, 9 Harris 147), yet in arriving at the intention of the legislature we may consider the mischief that would arise from giving too literal effect to the language of the act.
    Let us, then, briefly consider the condition of the people of Greene county. That county is either within or without the fourteenth district. If without, what is its position ? It is not a part of any other district. The Constitution gives to the people a right to vote in the election of their judges. Have the people of Greene county such right? If so, is it to vote for a judge in a district of which their county forms a part, or is it to vote for a judge in another district ? If the view of the plaintiff be correct, the latter is the only course open to a citizen of the county of Greene. Again, for whom must the elector vote ? Must he he a resident of Fayette, or may he be a resident of Greene? If a resident of the latter, must he take up his residence in Fayette to comply with the requirements of the Constitution? Suppose, in case of several candidates, the vote cast in Greene should elect the president judge, is that vote competent and valid to elect him, yet its soil legally disqualified from giving him a residence ? These and other objections which might be stated show the difficulties in adopting the view of the plaintiff. The whole spirit of the Constitution and of the Acts of Assembly is that the people of each county shall be permitted to vote for a president judge, and that they shall vote in the election of one for their district only. The doctrine that a county can be made a kind of territorial appendage to a judicial district, and the people therein shorn of their rights, finds no warrant in the Constitution.
    Although the language of the Act of 9th April 1874 may not be aptly chosen, yet it manifestly intends to declare that the county of Greene is, for judicial purposes, attached to the same district with Fayette, and that the two counties thus united form the fourteenth district. It follows that the county of Fayette does not constitute a separate judicial district, and the defendants do lawfully hold and exercise the offices of associate judges therein.
    Writ dismissed
    Triíiíkey and Sterrett, JJ., dissented.
    Art. Y., sect. 5, of the Constitution of 1874, is as follows:
    “ Whenever a county shall contain forty thousand inhabitants, it shall constitute a separate judicial district, and shall elect one judge learned in the law, and the General Assembly shall provide for additional judges as the business of the said district may require. Counties containing a population less than is sufficient to constitute separate districts shall be formed into convenient single districts, or, if necessary, may be attached to contiguous districts, as the General Assembly may provide. The office of associate judge not learned in the law' is abolished in counties forming separate districts, but the several associate judges in office when this Constitution shall be adopted shall serve for their unexpired terms.”
    Sects. 13 and 14 of the schedule are as follows:
    Sect. 13. “ The General Assembly shall, at the next session after the adoption of this Constitution, designate the several judicial districts as required by this Constitution. The judges in commission, when such designation shall be made, shall continue, during their unexpired terms, judges of the new districts in which they reside; but when there shall be two judges residing in the same district, the president judge shall elect to which district he shall be assigned, and the additional laiv judge shall be assigned to the other district.”
    Sect. 14. “ The General Assembly shall, at the next succeeding session after each decennial census, and not.oftener, designate the several judicial districts as required by this Constitution.”
    The Act of April 9th 1874 (Pamph. L. 54, Purd. Dig. 1835), provides as follows:
    “ The judicial districts of the Commonwealth shall be numbered, composed and designated as follows: * * * The fourteenth distict of the county of Fayette, to which the county of Greene is hereby attached.”

      Henry W. Palmer, Attorney-General, and C. R. Buckalew (with them Edward Campbell), for the Commonwealth.
    Art. V., sect. 5, of the Constitution, provides for two classes of counties, (1.) Those containing forty thousand inhabitants and over. (2.) Those containing less than forty thousand inhabitants. It declares that each county in the first class “shall constitute a separate judicial district,” and that counties in the second class “shall be formed into convenient single districts, or, if necessary, may be attached to contiguous districts, as the General Assembly may provide.” It further declares that counties of the first class “ shall elect one judge learned m the law,” and that “the office of associate judge not learned in the law is abolished in counties forming separate districts,” with a proviso that the associate judges in office at the time of the adoption of the Constitution should servo for their unexpired terms. Sects. 18 and 14 of the Schedule, fixed the times when the legislature should designate the several judicial districts, viz.: for the first time, at the next session after the adoption of the Constitution; and subsequently at the next succeeding session after each decennial census.
    The right of the legislature in the premises is thus restricted to the ministerial act of designating districts. It is the clear constitutional right of a county containing forty thousand inhabitants, (1.) Tobe a separate district; (2.) To have a single law judge; (3.) .Not to have associate judges not learned in the law.
    It is an admitted fact in this case that Payette county, at the time of the passage of the Apportionment Act of 1874, contained more than forty thousand inhabitants. The legislature by that act designated the fourteenth district as consisting “ of the county of Payette, to which the county of Greene is hereby attached.”
    The question for construction here is as to the meaning and effect of the expression in the Constitution “ attached to contiguous districts.” This provision was doubtless inserted because experience had shown that there might be some counties of a loss population than forty thousand, which, by reason of location or other cause, could not conveniently bo included in any single district, and the legislature, in the Act of 1874, found this to be the case, and availed themselves of the permisión to “attach” counties in three cases. The position of an attached county is exceptional and anomalous, but neither by the letter nor the spirit of the Constitution, can the attaching of a small county to a large one affect the clear right of the latter to be a separate district, and to have no associate judges. In construing the letter of the Constitution, ordinary words must be taken in their popular acceptation: Monongahela Nav. Co v. Coons, 6 W. & S. 114. To “attach” does not make the thing attached part of the thing to which it is attached. To ascertain the spirit and intent, wo must look to the mischief formerly existing. The debates in the convention show that the effort and object of the counties was to secure a resident law judge, and to get rid of associate judges not learned in the law — which office exists in Pennsylvania only by implication, not by express creation. The convention, after much debate, fixed on a population of forty thousand, as the basis of granting their wish: 8 Conv. Deb. (1873) 374.
    The intention, significance and force of the word “ designate” in sects. 13 and 14 of the schedule cannot be mistaken. It is here a general term, including the pointing out and naming or numbering the constitutional districts, as well as those to be made or formed by the legislature. The constitutional districts are defined and fixed by the first division, fifth section of the judiciary article, and power is conferred upon the legislature by the second division of that section to make other districts and to attach counties. These sections of the schedule, therefore, confer no power upon the legislature to make districts, but fix the times when as to some the power shall be exerted, and when as to all -they shall be arranged, numbered and proclaimed.
    The sole, exclusive condition on which a county by right assumes position as a separate district is its possession of at least forty thousand inhabitants at a decennial census. Then, the legislature must designate it as a district, and make due provision for its enjoyment of the rights conferred upon it by the Constitution. It is not mere territorial composition, but constitutional character that defines a separate district, and a county with adequate numbers must become such and retain its character, whether a small county shall be attached to it or not. To say that the mere attachment of a county (to secure necessary judicial service for the attached county) will destroy its privileges and character as a separate district, is to beg the very point in controversy without proof and without reason. No such result is required by the attachment clause of the Constitution, and the judge or judges of the separate district may well render all proper judicial service to the attached county without residing within it. Besides, the attached county will retain its associate judges.
    The contemporaneous construction of the Constitution by the legislature, the courts 'and the people is entitled to great weight. The first section of the Act of 1874 declares that the districts “ shall be numbered, composed and designated as follows.” The constitutional and statutory districts are arranged by numbers, and the three exceptional counties of Lebanon, Greene and Fulton are attached respectively to the separate contiguous districts of Dauphin, Fayette and Franklin. Under a special provision in the act, Lebanon county is given an additional law judge besides the associate judges; but the bench, the bar and the people of Dauphin and Franklin counties have for six years acted upon the construction that the oflice of associate judges- was abolished in those counties.
    [Sharswood, C. J. — Do the attached counties have the right to vote for president judge ?]
    That question does not necessarily arise in this proceeding. The question is, as to the right of Fayette county, not the rights, or wrongs of Greene county, but it does not offer much difficulty. There is no reason why the inhabitants of the attached county should not vote for a president judge. At an election held in the thirty-ninth district, consisting “ of the county of Franklin to which Fulton is attached,” the vote in Franklin county was, curiously enough, a tie, and the inhabitants of Fulton elected their candidate as president judge, who was obliged to remove his residence to Franklin county. Greene county may be considered attached to Fayette for judicial purposes only, and for all other purposes may remain apart — in the same manner as lands in one township maybe attached to another township “for educational purposes ” only, under the Acts of April 8th and 13th 1867, which acts have been declared constitutional and so construed by this court in Colvin v. Beaver, 9 W. N. C. 396. But even if it be held that Greene county has no voice in the election of a president judge, the hardship is no greater than has frequently been suffered when, upon the erection of new' judicial districts by the legislature, or by transferring a county from one district to another, the courts of that county have been presided over for years by a judge not voted for by its electors.
    The effect of adhering to the construction adopted in the opinion heretofore filed, it is respectfully submitted, is virtually to repeal a primary and sufficiently expressed provision of the Constitution in favor of a large county, in order to give a supposed effect to a minor and ambiguously expressed intent in favor of a small county. And the practical results may be very serious ; the president judge of Dauphin county, sitting alone, has for several years held courts of Oyer and Terminer, Quarter Sessions and Common Pleas, and under that practice many convicts are now serving terms in prison, and at least one man has been convicted, sentenced and hung for murder. Unless the position we contend for is correct, such trials were coram non judice, and the prisoners would he entitled to be liberated on habeas corpus.
    (No counsel appeared contra, and no paper-hook was presented.)
   Mr. Justice Paxson

delivered the opinion of the court, March 21st 1881.

This was a writ of quo w'arranto, issued at the relation of the attorney-general, requiring the defendants to show by what authority they hold and exercise the office of associate judges of Fayette county.

It appears, by the suggestion filed, that Fayette county has a population of forty thousand inhabitants; that by the Act of 9th April 1874, Pamph. L. 54, it was designated as the Fourteenth Judicial District, “ to which the county of Greene is herebj' attached that the associate judges of Fayette county, in office at the time of the adoption of the Constitution, remained in office until the expiration of their respective terms; that the defendants were elected after such expiration, and have continued in office since that time under the belief that Fayette county is still entitled to associate judges.

We are met at the threshold of the case by a denial of our jurisdiction. Sect. 3 of art. V. of the Constitution declares the jurisdiction of the Supreme Court shall extend over the state, and the judges thereof shall have original jurisdiction in cases * * of “ quo warranto, as to all officers of the Commonwealth whose jurisdiction extends over the state.” It is objected that the jurisdiction of a judge of the Common Pleas'does not extend over the state, but is confined to. his judicial district, from which it is argued that he is not “an officer of the Commonwealth” whose right to hold his office can be inquired into by this court upon a writ of quo warranto. If this position be sound, there would be no remedy in such cases, as neither the Constitution nor any Act of Assembly confers such jurisdiction upon the Courts of Common Pleas, and a person who had intruded himself into the office of president or associate judge of such court could hold the office so usurped indefinitely. We are not driven to this unfortunate position, as we regard the question of our jurisdiction as free from difficulty. That judges of the Common Pleas are state officers is not denied: Leib v. Commonwealth, 9 Watts 200. While their jurisdiction for many purposes-is confined to their respective judicial districts, it is equally true that for some purposes it extends over the state. Witnesses may be subpoenaed in any portion of the state, and their attendance compelled by attachment in any county of the state by the Court of Common Pleas of such county. In many instances, original process may issue from such courts to other counties throughout the state. The 3d section of the Act of 13th June 1836, Pamph. L. 572, the Act of 4th March 1862, Id. 79, and the Act of 24th April 1857, Id. 318, are cited as illustrations. Many similar acts might be referred to were it necessary. We need not pursue this branch of the case further. It is too plain for argument. We are of opinion that a judge of the Court of Common Pleas is an officer whose jurisdiction extends over the state, within the meaning of the 3d section of the 5th article of the Constitution. It follows, that this court has jurisdiction to inquire, upon quo warranto, by what right the defendants hold the offices which they respectively claim.

We pass now to the main question in the case. Its solution must depend chiefly upon the construction which should be placed upon the 5th section of the 5th article (Judiciary) of the Constitution. The language of said section is as follows i “ Whenever a county shall contain forty thousand inhabitants, it shall constitute a separate judicial district, and shall select .one judge, learned in the law, and the General Assembly shall provide for additional judges as the business of the said districts may require. Counties. containing a population less than is sufficient to constitute separate districts shall be formed into convenient single districts, or, if necessary, may be attached to contiguous districts, as the General Assembly may provide. The office of associate judge not learned in the law is abolished in counties forming separate districts; but the several associate judges in office when this Constitution shall be adopted shall serve for their unexpired terms.”

The Act of 1874, to which reference has been made, was passed to give effect to this constitutional provision, and designates the different judicial districts throughout the state.

It is clearly the right of Fayette county, having a population of forty thousand inhabitants, to be a separate judicial district. Hence it was entirely proper for the legislature to designate it as the fourteenth district.

Counties having forty thousand inhabitants are entitled to three privileges under the 5th article. They are: 1. The right to be a separate judicial district; 2. The right to have a resident law judge; and 3. The right not to have associate judges. As these rights rest upon the fundamental law, it is not in the power of the legislature to take them away. The designation in the Act of 1874 of Fayette county as the fourteenth judicial district is the equivalent of declaring it a separate district. To hold otherwise would convict the legislature of a wilful violation of the Constitution.

It was urged, however, that by attaching Greene county to Fayette, under the provision of the 5th article, Fayette lost its distinctive character as a separate district, and that Greene became a part of the district. This proposition cannot be' sustained without writing something into the Constitution that is not there. It does not say that counties with forty thousand inhabitants shall be separate judicial districts, excepting where a county with a less population is attached thereto. There is nothing in the language of the Constitution to indicate that Fayette county loses any of its rights as a separate district by having Greene attached.

The word “ attached” in the 5th article, and in the Act of 1874, mus‘t be understood according to its popular meaning. It vras well said in Monongahela Navigation Company v. Coons, 6 W. & S. 114, that constitutions are for the million, not for the mere inspection of lawyers, and are expressed in terms that are most familiar to them, that they may discern their rights and duties. What would the citizen of average intelligence understand by the word attach ? Precisely what the lexicographers define it to mean, o tie or fasten, to hind; as to fasten one substance to another by a string or glue.” — Webster. Surely he would never dream that when one thing is attached to another, the thing attached became a part of the thing to which it is attached. You may attach a chain to a watch, but it does not thereby become a watch, nor any part thereof. Nor does a small county attached to a separate judicial district become a part of such district by virtue of such attachment. To hold that it does, would require us to give a forced and unreasonable construction to the word attached, as well as to disregard the plain mandate of the Constitution, which declares that counties with a population of forty thousand inhabitants shall constitute a separate judicial district.

The Constitution having in language too clear to be misunderstood defined the rights of Eayette county as a separate district, I will consider for a moment the rights and position of Greene as am attached county. Among them are, 1st. The right to have associate judges resident in the county; and, 2d. The right to have the president judge of Eayette to preside in her courts, and to attend to all such business as requires his action. For such purposes Greene is in the same position as if she were one of the counties of a single district.

In such case, however, it might fall to her lot, to have a resident president judge, which can never be the case while attached to Fayette. If there'is anything clear in the Constitution, it is that the mere attachment of Greene to Fayette does not change any of the rights of the latter county.

I grant that the position of an attached county is anomalous. It was probably intended to be so. It would have been very easy for the framers of the Constitution to have provided in that instrument that such a county should be a part of the judicial district to which it should be attached. But they carefully refrained from doing so, and, we must presume, for sufficient reasons. Its position, at most, is temporary. It may become a separate district by increase of population, or may be made a part of a single district; and I have no doubt this guarded language was used in the Constitution to prevent what has just occurred here, viz., an attempt on the part of associate judges to hold their offices in separate districts where, by reason of there being a resident law judge, they are not needed. It is impossible to read the Constitution, or the debates of the convention which framed it, without coming to the conclusion it was intended to abolish the office of associate judge in all counties where a president judge is obliged to reside — that is, in all “ counties forming separate districtsand in attaching a county to a separate district the separate character of the district is presumed, so far as it concerns the office of associate judges not learned in the law. Further than this it is not necessary for us to go. It may be that in some sense and for some purposes Greene county may be a portion of the Fourteenth District. It is certainly a portion of the territory over which the judge of Fayette is required to preside, and in this sense the words “ district” and “ territory” may perhaps be considered as convertible terms. But it cannot be regarded as a part of the district in the sense of taking from Fayette county any of its rights as a separate district; it is not so written in the Constitution, nor do we see any good reason why we should give that instrument such a construction.

We have seen that Greene as an attached county has all the rights necessary for the holding of her courts and the proper administration of the law. It is said, however, that the construction we have placed upon the Constitution denies to her people the right to vote for president judge: this does not necessarily follow. The 15th section of the 5th article provides, “All judges learned in the law, except the judges of the Supreme Court, shall bo elected by the qualified electors of the respective districts over which they are to preside. Speaking for myself, it may possibly be that, in favor of the right of suffrage and for election purposes, the word “ districts” in this section may be construed to mean territory, so that in the case of an election for president judge of the Fourteenth District, the voters of the entire territory over which he is to preside may vote at such election. This, however, is a mere suggestion, not even an opinion of my own. No such question is before us, nor can it be decided in this proceeding. Any attempt to do so would embarass us in the future when such a case is brought before us, if it should be.

Even if there be a casus omissus in the Constitution in this respect, it would be no reason why we should deprive Fayette county of rights clearly given by the fundamental law. We can neither amend the Constitution or make the law. If any remedy is needed, we leave it to the legislative department of the government where it properly belongs.

This evil, if it exists, is not serious nor of a permanent character. It has often happened in the past that in the erection of new judicial districts, or by transferring a county from one district to another, the courts of a county have been presided over for years by a judge who was not voted for by its electors. And such instances may occur in the future under apportionments under the new constitution. Such slight imperfection in the working of that instrument in isolated cases is no good reason for interfering with a general system which, as a whole, is commendable and may be found useful.

And now, March 21st 1881, after hearing and upon due consideration, judgment is entered for the Commonwealth ; and it is further ordered and adjudged by the court that the said David W. C. Dumhauld and Griffith Roberts be and they are hereby respectively ousted from the office of associate judge of the Court of Common Pleas of Fayette county, and from the franchises, fees and emoluments thereof, and that they pay the costs of this proceeding.

Mr. Justice Mercur,

dissenting, delivered the following opinion, in which Gordon and Green, JJ., concurred:

Less than three months ago, after argument and ample time for consideration, we decided this case in favor of the defendants. Now, after a re-argument on the part of the plaintiff only, and without any substantial reasons not presented on the former argument, the judgment then entered. is to be reversed. In this I cannot concur. Nothing less than clear error in the former judgment justifies the present judgment. This reversal is mainly based on that portion of article V., sect. 5, of the Constitution of 1874, which declares “ whenever a county shall contain forty thousand inhabitants it shall constitute a separate judicial district. * * * Counties containing a population less than is sufficient, to constitute separate districts shall be formed into convenient single districts, or, if necessary, may be attached to contiguous districts, as the General Assembly may provide. The office of associate judge not learned in the law is abolished in counties forming separate districts.”

As the clause relating to forty thousand inhabitants does not execute itself, but requires legislative action to give it effect (Com. ex rel. Chase v. Harding, 6 Norris 343), and other parts of the Constitution relate to the same general subject-matter, no one should be interpreted by itself alone, but all should be made to harmonize so as to give due effect to the whole Constitution. It must be so interpreted as to carry out the great principles on which our government is based.

Section 15 of the same article declares “ all judges required to be learned in the law, except judges of the Supreme Court, shall be elected by the qualified electors of the respective districts over which they are to preside.” It is conceded that one president judge presides in the counties of Fayette and Greene. It follows that he is the president judge in each county, and the writs issued in each are tested in his name. Thus, in fact, the two counties constitute the district in which he presides. Then, in the language of the Constitution, he “shall be elected by the qualified electors” of that district.

Section 19 requires that judges, “ during their continuance in office, shall reside within the districts for which they shall be respectively elected.”

Section 26 declares “ all laws relating to courts shall be general and of uniform operation.”

The right of every male citizen ox the Commonwealth, twenty-one years of age, to vote at all elections, under limited qualifications, is expressly declared in art. VIII., sect. 1. This right of suffrage thus distinctly affirmed to exist in the great body of the people cannot be taken from them as long as the present Constitution stands, and it is not to be held subordinate to mere matters of convenience. It follows that the qualified electors of the county of Greene have a right to vote at every election of a president judge to preside in that county. In ease the vote in Fayette county should be divided between several candidates, and the whole vote of Greene county be cast for another candidate, whereby the latter received a plurality of all the votes cast, can it be contended that he is not thereby duly elected ? It cannot be without ignoring one of the highly valued rights of the people. After a judge shall bo elected to preside in the two counties, it seems to me too clear for argument to try to prove he may reside in either county of the district, or that he may not at will change his residence from one county to another. He may reside in Greene every summer and in Fayette every winter. If the view is to prevail that the latter county shall be deprived of associate judges, the people thereof must at times suffer groat inconveniences, at least when the judge shall reside in Greene.

It is claimed, however, that the Constitution declares a county or counties having a population insufficient to form a separate district may be attached to contiguous districts, and as Greene is attached to Fayette, the latter still remains a separate district. It is true the Constitution does permit a county to bo attached to a contiguous district, yet there it stops. It does not profess to declare its legal status, nor the status of the citizens of the county thus attached. It certainly is not a forced presumption to say, that, when the people adopted the Constitution, they understood, whenever a county was “attached” to an existing district, it became a part of the district.

The very idea of territorial attachment is, that the two thus united become parts of one whole. It is but another word for annexation. Unless otherwise provided by the terms of annexation, it becomes an integral part of the enlarged territory.

The denial of associate judges to the county of Fayette is a distinct affirmation that in one county, in which the president judge presides, he constitutes the whole court. He may there hold a court of oyer and terminer, and perform all the duties and exercise all the powe. a that he and associate judges not learned in the law jointly might do. In the county of Greene, where he also presides, it is admitted he has no such power. This is manifestly contrary to the whole spirit of the Constitution and the Act of Assembly creating the district. The idea that the presiding judge has so much less power in one county in his district than in another, finds no warrant in the Constitution. It is conceded that this ground is wholly untenable, where the legislature has in clear and express terms declared that two counties shall form a district.

It is therefore contended that the legislature may make this discrimination, and make the clause applicable to courts of the same grade of unequal operation, but this would seem to come in direct conflict with section 26, which says: “ All laws relating to courts shall he general and of uniform operation.” The construction contended for would be to recognise a law not general and not of uniform application.

This is not the case of a transfer of one county to a previously existing judicial district, for which the Constitution intended to provide. It is the formation of a new district by one and the same Act of Assembly, and in one line thereof.

After judges were made elective in Pennsylvania, a question as to the power of the legislature to transfer a county to another district, and thereby impose on the people thereof a judge in whose election they had no voice, was somewhat mooted. To remove this doubt, and to bridge over the time intervening prior to the next election, this power to attach was expressly given. It cannot be that there was any intention to permanently take from the people of any one county substantial rights and powers enjoyed by the people .of any other county. It is clearly wrong to say the people of Fayette county have a right to be deprived of associate judges. On the contrary, they have the right to enjoy all the conveniences resulting from having such judges. They expressed such desire by electing these judges. The governor duly commissioned them. It cannot be presumed that he did so contrary to the advice of the then attorney-general. Thus the action of the people of Fayette county had the sanction of the executive department.

Notwithstanding the words of the Constitution, that a county containing a population of forty thousand shall constitute a separate district, yet an act of the legislature is necessary to make it a district, and to set its machinery in motion. It is giving to that clause an undue effect when it is thus made to defeat other parts of the Constitution relating to the same subject-matter, and thus thwart the clear intent of the legislature in uniting the two counties under one president judge. To reach any other conclusion is to assume it intended to violate a cardinal right of the people declared in the Constitution. The other view makes the act harmonize with the different parts of the Constitution,, so as to give a reasonable and practical effect to all of them.

Justices Gordon and Green concur in this opinion


author: Mr. Justice Paxson

text:
    Frame versus William Penn Coal Co.
    1. If one deals bona fide with an agentas owner, without knowledge of his agency, he may sec-off any claim he may have against the agent m answer to the demand of the principal.
    2. A. and B., as agents of C., having furnished certain goods to D., O. sued D. for the price thereof. I). having a claim against A. and B. desired to prove that he had dealt with them as principals, in order to enable him to make use of his claim against them as a set-off against C. Ho was asked on the trial, accordingly, “ to state what knowledge he had that A. and 15. were dealing as principals or agents,” hut his answer was excluded on-the ground that the question of his knowledge as to A. and B.’s true character should he proved only by facts and circumstances from which the jury might draw inferences. Held, that this exclusion was error, and that if defendant had no knowledge of the agency, it was competent for him to testify to that effect.
    3. Letters containing particular admissions, may he put in evidence though unaccompanied by the letters in answer to which.they have been written.
    February 28th 1881.
    Before Sharswood, C. J., Mercur, Gordox, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Berks county: Of January Term 1879, No. 220.
    This was an action of assumpsit, originally brought by Pollock & Medlar, for the use of the William Penn Coal Company, against Conrad Frame, to recover §120.30, the price of certain coal shipped from the company’s mines in Schuylkill county to the defendants at Heading. Before the trial, the record was amended by striking out the names of Pollock & Medlar, leaving the William Penn Coal Company to stand as sole plaintiff.
    On the trial, before Sassamax, A. L. J., the defendant did not deny the receipt of the coal, nor dispute the quantity or price, but claimed that be bad purchased the same from Pollock & Medlar, against whom be had a set-off, and not from the William Penn Coal Company. The plaintiffs proved that Pollock & Medlar were their agents at Pottsville for the sale of coal; that the plaintiffs shipped the coal in question to the defendant at Reading through Pollock & Medlar, accompanied by a printed ticket and bill of lading showing whose coal it was; that the bill for the coal was sent to the defendant by Pollock & Medlar; that plaintiffs’ mode of doing business was to enter the coal on their books to the purchaser it was sent to, and make out bills to their agents, Pollock & Medlar, and charge them with the coal shipped; that the agents then made out bills to the purchaser in their own names; that the company held the agents in the first instance for the collections, and if they w'ere unable to collect, the company proceeded to do so.
    The superintendent of the company was asked on cross-examination : Q. “ If the bills of coal sold by agents are afterwards not collectable by the company, are the agents liable to the company for the amount?” Objected to, and ruled out, as not properly cross-examination, and as irrelevant to the issue. (First assignment of error.)
    The defendant’s counsel offered to prove that the defendant did not know that Pollock & Medlar were acting as agents in the selling of the coal in question, but that he dealt with them as principals, and that he did not know the William Penn Coal Company in the transaction.
    In' support of this offer, he asked the defendant, on the witness st^nd :• Q. “ State what knowledge you had that Pollock & Medlar were dealing in these sales of coal, as principals or agents ?” Objected to, because knowledge of the witness would be an inference and not a fact. Whether he was dealing with Pollock & Medlar as agents or as principals is an inference to be made by the jury from the facts proved. The question is not what the defendant actually knew, but what he was bound to know from the circumstances.
    The Court: Facts and circumstances should be proven to show the manner in which Pollock & Medlar dealt, and it should be for the jury to conclude whether the facts and ostensible circumstances of the manner and dealing would induce knowledge of principal-ship or agency in the mind of a man of average intelligence. This form of putting the question is rejected. (Second assignment of error.)
    The defendant’s counsel further offered to prove delay by Pollock & Medlar in the fulfilment of another contract of purchase of coal by the defendant, whereby the defendant sustained damages to the amount of $140, which he claimed to set off against the plaintiffs’ demand. In support of this offer, he offered in evidence three letters from Pollock & Medlar to the defendant, explaining the cause of such delay. Objected to, because defendant’s previous letter to Pollock & Medlar, to which one of the letters offered was a reply, had not been given in evidence, and because irrelevant. Objection sustained, and letters excluded; exception. (Third assignment of error.)
    Verdict and judgment for the plaintiff for $142.22. The defendant took this writ of error, assigning for error the rejection of evidence as above set forth.

      A. G. Green, for the plaintiff in error.
    To sustain the defence it was incumbent on us to show two facts: (1.) That Frame, the defendant, dealt with Pollock & Medlar as principals, and not as agents, and that even if it were shown that they were agents of the William Penn Coal Company, the defendant had no knowledge of such agency. (2.) That Frame had a valid claim against Pollock & Medlar, growing out of the non-fulfilment of another contract, exceeding the amount for which suit was brought. The question to the defendant intended to elicit his ignorance of the fact of agency, was in proper form, and should have been admitted. The letters from Pollock & Medlar, signed by them, were admissible as admissions, and it was not necessary to produce the entire correspondence between the parties, or the letters from the defendant to which they were replies. This was for the plaintiff to do in rebuttal if he saw fit: Barrymore v. Taylor, 1 Esp. 327; De Medina v. Owen, 3 C. & K. 72; North Berwick Co. v. Ins. Co., 52 Me. 336; Haywood Rubber Co. v. Duncklee, 30 Vt. 29; Crary v. Pollard, 14 Allen 285; Stone v. Sanborn, 104 Mass. 319; Lester v. Sutton, 7 Mich. 331; Newton v. Price, 41 Ga. 186; Wiggin v. Railroad, 120 Mass. 201.

      Samuel L. Young, for the defendant in error.
    The plaintiff proved, in the first instance, that the defendant had knowledge or notice that the coal belonged to and was shipped by the William Penn Coal Company, from the ticket and bill of lading accompanying the coal. The question put to him in relation to his knowledge of the agency was in improper form, as tending to draw out in answer his construction or opinion of the existence or absence of knowledge or notice. This was an inference for the jury to draw from facts and circumstances to be testified to by the defendant: 1 Phillips on Ev. 778; Given v. Albert, 5 W. & S. 333. The defendant offered three isolated letters from Pollock & Medlar to prove delay in the fufilment of an alleged contract, which contract was not definitely proved, and without offering his letters to which these were answers. This incomplete and partial offer was properly excluded : 1 Greenl. on Ev., sect. 201; 1 Whart. on Ev., sects. 617-20; Watson v. Moore, 1 C. & K. 626; Holler v. Weiner, 3 Harris 242; McCully v. Barr, 17 S. & R. 445; Nosham v. Selby, L. R., 13 Eq. 191.
   Mr. Justice Paxson

delivered the opinion of the court, March 21st 1881.

This action as it stood in the court below at the time of the trial was a suit by the William Penn Coal Company to recover the price of eight car loads of coal shipped to the defendant by Pollock & Medlar, plaintiff’s agents. The receipt of the coal was not denied by the defendant, but ho alleged and offered to prove that he dealt with Pollock & Medlar as principals, and had no knowledge that they were plaintiff’s agents, or that the coal in question belonged to plaintiff; that he made a contract with Mr. Medlar, one of the firm, about August 1st 1873, for two boat loads of Peach Mountain Chestnut coal at $2.08; that Pollock & Medlar delayed sending said coal from time to time; that after repeatedly failing to do so, they finally, on the 25th of August, notified the defendant that they could not do so; that coal of the quality contracted for had risen in price at least forty cents, and that in consequence of said failure and rise, the defendant sustained damages to the amount of at least $140, which he claims to set off against the plaintiff’s demand.

It is familiar law that if one deal bona fide with an agent, as owner, without knowledge of his agency, he may set off any claim he may have against the agent in answer to the demand of the principal: Story on Agency, sects. 420, 421; 2 Kent’s Comm. 632, where numerous authorities are collected. While the court below appears to have recognised this principle, the defendant was nevertheless deprived of all practical benefit of it by the ruling out of his evidence for other reasons. Thus, in the second specification, the question was rejected because of its form. The defendant being on the stand was asked by his counsel, “ State what knowledge you had that Pollock & Medlar were dealing in their sales of coal as principals or agents.” The court excluded the answer to this question upon the ground that defendant could not state his knowledge of the agency, but must show facts and circumstances from which the jury may infer the fact of such knowledge. The error of this ruling is manifest. If the defendants had no knowledge of the agency, the absence of such knowledge was of itself a fact which it was competent for him to state. The direct question might well have been asked. Its modification tended merely to draw out his sources of information, which was at most an anticipation of cross-examination. The fact that the defendant had no knowledge of the agency was an essential preliminary of his defence. Conceding such knowledge it would have availed him nothing to have established the remainder of his offer.

It was also error to exclude the letters referred to in the third and fourth specifications. Assuming, as we must, for the purposes of this case, that the defendant had no knowledge of the agency, they were links in the chain of the defence. The objection that the letters had not been given in evidence to which those offered were replies, is not tenable. The rule is correctly stated by Mr. Wharton, in his work on Evidence at sect. 1127: “Nor is it an objection that the letters are insulated — a letter containing a particular admission may come in by itself; nor is it necessary in such case that the whole pertinent correspondence should be put in.” The letters in question were offered to show delays in the shipment of coal, and they were some evidence of such delay.

We do not regard the evidence referred to in the first specification as material, and its rejection was not error.

Judgment reversed, and a venire facias de novo awarded.


text:
    Meck’s Appeal.
    A. agreed with B. that upon the death of both A. and his wife, A.’s executors should convey a certain tract of land to B., B. to pay for the same in instalments, In the meantime during the life of A. and his wife, A. agreed that B. should enter into the possession of said land, paying a specified rent therefor. A. further reserved the right to live on said premises, for himself and wife during their lifetime. B. accordingly entered into exclusive possession of part of the promises, and into concurrent possession with A. and his wife of the residue thereof, and afterwards died intestate before A., leaving his widow and children resident on the land. A. then filed a bill against the widow and children of B., averring that the articles of agreement as to the land were void and inoperative, but that they constituted a blot on complainant’s title, and praying that they might be cancelled and delivered up. A. died pending the suit, having made a will subsequent to the dale of the agreement aforesaid, revoking all former dispositions of his property. Ilis representatives were substituted as complainants. Held, that the defendants having entered into possession under the agreement without either fraud, accident or mistake, wore entitled to have their title tried by a jury, and that the bill should therefore be dismissed. Held, further, that the agreement between A. and B., could not bo deemed a testamentary instrument on A.’s part, and was not therefore revoked by the provisions of his subsequent will.
    March 1st 1880.
    Before Sharswood, C. J., Gordon, Paxson and Sterrett, JJ. Mercur, Trunkey and Green, JJ., absent.
    Appeal from the Court of Common Pleas of Berks county: Of January Term 1880, No. 305. In Equity.
    Bill in equity, filed December 29th 1873, by Samuel Meek against Catharine Meek, widow and administratrix of Isaiah Meek, deceased, and Henry Meek et al., children of said Isaiah Meek, deceased. The plaintiff died pending the suit, and his executors, Samuel Meek and Charles Meek were substituted of record.
    The bill set forth that on December 10th 1863, the plaintiff, Samuel Meek, and his son, the said Isaiah Meek, entered into articles of agreement, whereby the. said Samuel Meek, for himself, his heirs, executors, &e., did “ covenant, promise, grant and agree to and with the said Isaiah Meek, his heirs and assigns, by these presents, that he, the said Samuel Meek, agrees and directs that his executors, or some one of them, shall and will immediately after the death of himself and his wife, both of them, at the proper costs and charges of said Isaiah Meek, his heirs and assigns, by good and lawful deed or deeds, well and sufficiently grant, convey and assure unto the said Isaiah Meek, his heirs and assigns, in fee simple, clear of all encumbrances, all that certain messuage, tenement and tract of land, situate in said district, township, county and state aforesaid, bounded and limited as follows, to wit: namely, containing one hundred and eight acres and twenty perches.

      “ In consideration whereof, the said Isaiah Meek, for himself, his heirs, executors and administrators, doth covenant, promise and agree to and with the said Samuel Meek, his heirs and assigns, by these presents, that he, the said Isaiah Meek, his heirs, executors and administrators, or some one of them, shall and will, on the execution and delivery of the said deed as aforesaid, well and truly pay, or cause to be paid, unto the said executors, or some one of them, the sum of five thousand dollars, in manner following, to wit: Five hundred dollars shall be .paid one year after the death of said Samuel Meek and his wife Anna (no payment can be required until one year' after they are both dead), and then five hundred dollars every year until the whole amount of five thousand dollars is paid, making in all ten yearly payments. And for said unpaid amounts the said Isaiah Meek must pay four per cent, interest until paid, commencing one year after the death as aforesaid. And it is further agreed by both parties, that the said Isaiah Meek shall farm and possess the said tract of land before mentioned during-the natural lifetime of said Samuel Meek and his wife Anna, under the following condition and terms: To commence on the first day of April, Anno Domini one thousand eight hundred and sixty-four. The said Isaiah Meek must, for the consideration as the yearly rent, give to the said Samuel Meek, or to his wife Anna Meek, one-half of all the winter grain and one-half of the corn, and one-third of the oats and buckwheat; and the said Isaiah Meek must pay all the road tax, but Samuel Meek must pay the county and state tax; hay and straw, manure, and all the grain in the ground, must remain on the premises after the death as aforesaid. * * * The laid Samuel Meek must do all the repairing of said premises. Samuel Meek agrees to buy four hundred bushels of lime to be put on the land every year; Isaiah must haul said' lime free of charges. The said Isaiah Meek must plough in and out the potatoes as many as the said' Samuel Meek needs. The said Samuel Meek reserves all the apples on the side where the house is erected, one-half of the pears and also reserve 's the right to live on the said premises for himself and his wife during their lifetime. It is also agreed by Samuel Meek, that if any iron ore is found on said premises, the said Isaiah Meek shall be entitled to one-half of the income thereof.”
    This instrument was acknowledged December 10th 1863, and recorded December 16th 1863.
    Isaiah Meek went into possession of the premises in 1864, and farmed the same until his death, on November 6th 1865, after which his widow, Catharine Meek, and his children, continued to reside on the premises and farmed the same until April 1867, when they ceased farming, and the property was rented by Samuel, Meek to one Beidler, and subsequently to other farmers.

      Samuel Meek, in 1873, made his last will, disposing of all his property and revoking all former dispositions thereof made.
    The plaintiff averred that the said articles of agreement of December 10th 1863, became void and inoperative by the death of Isaiah Meek and the abandonment of farming by his widow, and were revoked by the will of Samuel Meek. The plaintiff averring that he feared that the existence of said instrument in the hands of defendants may be a cloud upon his title, and subject him and his estate to future litigation, when the facts may no longer bo capable of proof, prayed that the said agreement might be can-celled and delivered up, and the defendant be restrained by injunction from setting up any claim thereunder.
    After answer filed, the cause was referred to a master in chancery (William M. Goodman, Esq.), who found the facts substantially as set forth in the bill, and further that Isaiah Meek, soon after taking possession in 1874, built a new house on the farm which he occupied with his family until his death, and his widow and children have occupied it ever since. Samuel Meek and his family resided on the property in the old mansion house.
    The master reported, as matter of law, that the instrument of December 10th 1863, was an executory contract and not a grant or devise; that the rights of the parties to the contract or their representatives are mutual and ought to be determined by another proceeding; that the instrument is in no sense a cloud upon title entitling the plaintiff to relief on the principle of quia timet; that no mutual mistake had been proved; and the master recommended that the bill be dismissed for want of jurisdiction.
    Exceptions filed by the plaintiff to the master’s report were sustained by the court, who held that the instrument was testamentary in its character, and was therefore revoked by the subsequent will of Samuel Meek. The court therefore entered a decree in accordance with the prayers of the bill.
    The defendants took this appeal assigning the decree for error.

      J. S. Livingood (H. Maltzberger with him), for the appellant.
    The articles of agreement vested an equitable beneficial interest in Isaiah Meek immediately upon its execution, subject to no condition or contingency. He took possession under the contract of sale, not simply under the clause of lease. Isaiah Meek or his representatives are not released from his covenants to pay the purchase-money, nor are Samuel*Meck’s representatives released from his covenants. The instrument was in no sense testamentary, so as to be revocable by a subsequent will of Samuel Meek against the consent of Isaiah.

      D. and J. N. Ermentrout, for the appellee.
   Mr. Justice Paxson

delivered the opinion of the court, May 2d 1881.

This case comes under no recognised head of equity jurisdiction. It is not alleged that there was either fraud, accident or mistake in connection with the written instrument executed by Samuel Meek and Isaiah Meek, and bearing date the 10th of December 1863. It is not denied that Isaiah Meek entered into possession of the farm specified in said agreement and in pursuance thereof, and that Catharine Meek, his widow, and his minor children are in exclusive possession of a part of the premises, and a disputed or concurrent possession of the remainder. The plaintiff seeks, and the court below ordered, that the agreement referred to be delivered up to be cancelled upon the ground that it is a blot upon the plaintiff’s title. That it is such blot may be conceded without admitting plaintiff’s right to have it removed in this summary manner.

The object of the proceeding is patent. With the agreement destroyed by a decree in equity, the road will be open for a recovery of possession by an action of ejectment. The defendants could not then use it as a shield to defend their possession. In other words, this bill is a mere tender to a writ of ejectment.

We are of opinion that it cannot be so used. The attempt to convert the deed into a last will and testament does not help the matter. The question may well be asked, whose will? It is a contract inter partes, and in this respect differs from Turner v. Scott, 1 P. F. Smith 126, and other cases in which a conveyance of land intended to take effect after the death of the grantor, was held to be a testamentary disposition of the property. Here the contract was expressly stated to be for the sale and purchase of the farm for a price agreed upon ; the purchase-money to be paid after the death of the vendor, and the title to be made by his executors and administrators; in the meantime the vendee to occupy the premises under a stipulated rent. We will not anticipate questions that may hereafter arise by now passing upon the legal effect of this paper, and it is referred to as showing that the defendants having 'entered into possession under such an agreement without either fraud, accident or mistake, have at least the right to have their case passed upon by a jury in a common-law proceeding.

The decree is reversed, and the bill dismissed with costs.


author: Mr. Justice Trunkey

text:
    Sheffy’s Appeal.
    1. A. as assignee of B. sold certain real estate belonging to B. under an order of court, in pursuance of the Act of Febuary 17tli 1876, Pamph. L. 4. On June 7th return was made that the property had been sold to C. for $5210. The return was confirmed, and on September 13th, a deed was executed by A. to C. On the same day O. reconveyed the premises to A. The property was sold subject to certain mortgages, amounting to $4392. The understanding, at the time of sale was, that the purchaser was to pay $818 only, and to discharge the mortgages. A. paid off the mortgages, and subsequently, on November 10th 1879, procured an amendment of the return of sale, so as to correspond to the facts above stated. A. upon filing his account as assignee, then claimed subrogation as against B.’s personal property, for the amount disbursed by him in discharging the mortgages. Held, that no creditor of B. having been misled to his injury, the court had an undoubted right to allow the amendment of the return, even after the long time which had elapsed since its confirmation. Held, further, that A. was not entitled to subrogation as against B.’s personalty, for the amount disbursed by him for payment of the mortgages.
    2. Where an anterior lien has been paid by the debtor, or one who stands in the debtor’s shoes, a posterior lien creditor cannot be subrogated to the rights of the anterior.
    March 2d 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Appeal from the Court of Common Pleas of Lehigh county: Of July Term 1880, No. 45.
    The facts of this case were as follows: Lewis M. Frey made a general assignment for the benefit of creditors of real and personal estate, to W. J. Craig, on February 12th 1876. In April 1877, the court, on petition of the assignee, made an order authorizing him to sell at public salo a certain house and lot, part of the assigned estate, in accordance with the Act of February 17th 1876, Pamph. L. 4. On June 7th 1877, the assignee returned that he had sold the premises in question to R. Clay Hamersly for §5210. The return was confirmed by the court, and on September 13th 1877, the assignee conveyed the premises to IJamersly, who, by deed dated the same day, reconveyed the same to the said William J. Craig (the assignee) in his own right. No money changed hands.
    At the time of assignment and sale the said real estate was encumbered by mortgages and judgments in the following order: Three mortgages aggregating §4392; William J. Craig, judgment, §1400 ; other judgment-creditors, aggregating §3182.75, including a judgment held by George Sheffy for §820.39. The mortgages were accompanied with bonds, which mortgage-debts the assignee paid in full. The assignee also sold other real estate of the assignor, situate in Northampton county, without an order of court, for the nominal price of §1, subject to mortgages for §1293.50, which were paid by the purchaser. The assignee in his account, filed June 3d 1878, charged himself with the purchase-money, $5210, and claimed credit for the amount of the mortgages, $4392, and also claimed credit for $818, the balance of the purchase-money, as having been paid to him on account of his judgment of $1400.
    The account was referred to an auditor, before whom the subsequent judgment-creditors objected to the said credits. The auditor declined to disallow the said credits, and in the distribution of the personal, property subrogated William J. Craig to the rights of the mortgagees, and awarded him a pro rata dividend on $5685.50, the amount of all the said mortgages (including those on the Northumberland county land), and also on the amount of his judgment. The result of this distribution was that Craig would receive $818, proceeds of the real estate, and the further sum of $495.99 out of the personal fund, amounting together to $1313.99, or nearly the full amount of his judgment, while the other judgment-creditors would only receive a pro rata dividend of seven per cent. The subsequent judgment-creditors filed exceptions to this report,'pending which, on September 6th 1879, Craig and Hamersly presented their petition to the court, setting forth that by inadvertence a mistake had been made in the return of the assignee to the order of sale in 1877, and in the assignee’s account, in stating the purchase-money as $5210, whereas it should have been $818, which was the true amount for which the premises sold subject to the mortgages. It was admitted that the mortgages were not discharged by the sale, — the express terms of the Act of 1876 preserving their lien, and it having been announced at the sale that the property would be sold subject to the mortgages. The mistake arose by including in the bid, in addition to the actual purchase-money, the amount of the mortgages, on the understanding that the purchaser would receive credit for them. A rule to show' cause was granted, and testimony taken which established the facts alleged in the petition, and, after argument, the court, on November 10th 1879, granted an order to amend the return so as to read: “ That the price bid, $5210, includes the amount of mortgages undivested by said sale, amounting to $4392, and that said real estate was sold for $818.” On the same day, the court dismissed the exceptions filed to the account, except the one filed to the allowance of the credits of the mortgages, as to which the report was referred back to the auditor to take further testimony and report thereon.
    On December 15th 1879, the auditor filed a supplementary report awarding to William J. Craig a dividend upon the sum of $5685.50 (being the amount of all the said mortgages, including that on the Northampton county lands), amounting to $502.50; also a pro rata dividend upon his judgment of $1400, amounting to $123.20 ; and to the remaining creditors a dividend of less than nine per cent.
    George Sheffy filed, inter alia, the following exceptions to the supplementary report, viz.: 1. To the allowance to the accountant of credit for the mortgages amounting to $4392, which were not discharged by the sale, and allowing credit for the $1293 mortgage on other lands. 2. To awarding the assignee a dividend upon the amount of the mortgages by subrogation as well as upon his judgment.
    These exceptions were dismissed by the court, and the report confirmed; whereupon George Sheffy took this appeal, assigning for error, inter alia, the order of November 10th 1879, permitting the amendment of the return of sale, and the dismissal of the exceptions and confirmation of the report.

      W. S. Kirkpatrick ( W. H. Glace with him), for the appellant.
    1. This was the objectionable case of an assignee purchasing at his own sale in the name of an agent, who immediately reconveyed to him. In his return he reported the purchase-money as $5210, and he charged himself with that amount in his account. His allegation that he bid under the mistaken expectation that he would be credited with so much of the purchase-money as would pay off the mortgages could not properly be considered before the auditor of his account, after the lapse of more than a year from the confirmation of the deed. The rights of lien-creditors had become fixed upon the basis of the purchase-money as returned, and the assignee is chargeable with the $5210. If relievable at all, he should have applied promptly to the court to set aside the sale. For the same reasons the court erred in allowing the amendment in this proceeding two years after the return was filed without saving intervening rights.
    2. The allowance to Craig of a dividend on the amount of the mortgages on the principle of subrogation, was error in any aspect. It is inconsistent with the amended finding that the actual purchase-money was only $818, and that the mortgages were undivested. There was no ground for the application of the principle of subrogation, and the amount awarded on this principle to Craig should have been distributed pro rata among all the creditors. And even if ho had been entitled to be substituted as to the mortgages which were liens upon the premises sold, there is glaring error in subrogating him as to the mortgages for $1293.50 on the Northampton county lands, vfhich were sold by the assignee for $1, and the mortgages paid by the purchaser, one Weaver.

      John Rupp (with whom were E. G. Schwartz, Thomas B. Metzger and R. Clay Hamersly), for the appellee.
    1. The appellant maintains the inequitable claim that the assignee should be held to the consequences of a technical mistake m the return of sale, by which he would be obliged to pay to the assignor’s creditors the sum of $4392, money Avhich he never received, nor was entitled to receive, which did not belong to the assigned estate, and to which the creditors have no right. Courts are vested both by statute and common law with large discretionary power of amendment of their own records to prevent injustice, and particularly where the party injured by a mistake is a trustee or an officer of the court: Bailey v. Musgrave, 2 S. & R. 219; Rhoads v. Commonwealth, 3 Harris 272; Pennsylvania & New York Railroad & Canal Co. v. Bunnell & Co., 31 P. F. Smith 414; Sheppard’s Contested Election, 27 Id. 295; DeHaas v. Bunn, 2 Barr 335; Smith v. Hood & Co., 1 Casey 218; Sickler v. Overton, 3 Barr 325; Stephens v. Cowan, 6 Watts 513; Ordroneaux v. Prady, 6 S. & R. 511; Owen v. Simpson, 3 Watts 88; Murray v. Cooper, 6 S. & R. 126; Fitzgerald v. Stewart, 3 P. F. Smith 343; 2 Troubat & Haly’s Practice (4th ed.), 720.
    2. As to the award to Craig of a dividend out of the personal estate on the amount of the mortgages. Each mortgage was accompanied with a bond which represented the principal debt, to pay which the personal estate was the primary fund: Graeff’s Appeal and Meily’s Appeal, 29 P. F. Smith 146; Morris v. Olwine, 10 Harris 441; Miller’s Appeal, 11 Casey 481; Wallace’s Estate, 9 P. F. Smith 401. It was Craig’s right to have these bonds presented against the personal estate fund and a dividend allowed on them, so as to reduce the amount due on the mortgages, and thus increase the amount to be realized on his judgment out of the real estate. The mortgages being paid in full out of the real estate in detriment to Craig’s judgment, he was entitled to be subrogated to the rights of the mortgage-creditors on their bonds against the personal estate fund: Wallace’s Estate, 9 P. F. Smith 401; Gring’s Appeal, 8 Norris 336; McGinnes’s Appeal, 4 Harris 445.
   Mr. Justice Trunkey

delivered the opinion of the Court, March 28th 1881.

Under the Act of 1876 the court authorized sale of certain real estate. Return was made of sale to R. Clay Hamersly for $5210, which was confirmed; and on September 13th 1877, deed was executed to said Hamersly, who, on the same day, reconveyed to the assignee. Hamersly was attorney for the assignee, he neither paid nor received money on the purchase and reconveyance. In fact, William J. Craig was the purchaser of the property sold by himself' as trustee under the order of court.

Upon Hamersly’s petition, two years after the said conveyances, the court decreed as follows: — “Now, November 10th 1879, leave is granted to amend the return to the order of sale of the real estate, as prayed for in petition filed September 6th 1879, to wit: That the price bid, $5210, includes the ameunt of mortgages undivested by said sale, and interest thereon to the date of confirmation, amounting to $4392, that said real estate was sold for $818.” Hamersly testified: “It was publicly stated before the time of sale and when the conditions were made known, that there were three mortgages on the Lehigh county property, which would not be divested, and that the amount thereof would be deducted from the bid. The hid was five thousand two hundred and ten dollars, which included the three mortgages. They had been paid by the accountant.” It thus appears by the testimony of the purchaser’s attorney, with which tho amendment accords, that the purchaser expressly treated the mortgages as part of his bid. We think the court had power to allow the amendment, even after the long lapse of time. That it was just can hardly he denied, for there is no pretence that any creditor understood that the property sold for $5210 in addition to the amount of the mortgages.

The actual mistake was in the assignee making return that the property sold for tho whole amount of the bid, and charging himself therewith in his account and claiming credit for the mortgage debts. By law, the sale did not divest the lien of tho mortgages. In fact, all understood these liens were to remain and be deducted from the bid. Before the auditor, creditors whose liens were divested, claimed that the sum of $5210 should be distributed instead of $818, and the amendment became necessary to protect the assignee. Now he claims subrogation to the rights of the mortgagees for the purpose of reaching the personal estate fund, and this i-s as unconscionable as was the attempt to make him pay the amount of the mortgages to creditors, after he had paid the same to the mortgagees.

Craig was assignee, purchaser and judgment-creditor. The land was sold subject to the mortgages, and the proceeds belong to creditors whose liens were divested. In pursuance of his obligation, the purchaser paid the mortgagees; but if anything were due them they would have the right to receive a dividend out of tho personal estate fund on the whole amount, if necessary, for their entire payment. Had they not been paid, and come in on that fund, to the extent of appropriations to them out of said fund other creditors wonld have equitable right of subrogation, so as to recover back said appropriations out of the land. But the purchaser has no equity to support subrogation. It would be in the teeth of the express understanding at the sale.

The mortgagees had the right to look to the land'alone for payment, whether the debtor made assignment or not. Had Frey paid the mortgages, no judgment creditor could use them for his own benefit. The purchaser of Frey’s equity of redemption, or his legal title, paid tho mortgages, and the posterior judgment-creditors have no right of substitution. Counsel have failed to cite a precedent showing that where an anterior lien has been paid by the debtor, or one who stands in the debtor’s shoes, a posterior lien-creditor shall be subrogated to the rights of the anterior. Because the assignee became purchaser and holds a judgment, he cannot manipulate the estate to his advantage as a creditor beyond what he would have did he appear only as a lien-creditor.

Appellant alleges that the land in Northampton county was sold without an order of court, and that the purchaser paid the mortgage thereon, $1293.50. There may be good reason for allowing Craig a dividend on the amount of that mortgage, but we discover no trace of it in the paper-books. It does not appear that his judgment was filed in that county.

The fifth assignment of error is sustained, and the distribution must be corrected accordingly.

Decree reversed and record remitted for further proceeding. Costs of this appeal to be paid by the appellee, William J. Craig.