author: Mr. Justice Sterrett

text:
    Linton versus Vogel.
    1. On an appeal to the Common Pleas from a judgment of a justice of the peace, the amount demanded by the plaintiff cannot be increased beyond the limits of the justice’s jurisdiction, except so far as to embrace interest which has accrued since the institution of the suit.
    ' 3. A. instituted suit for breach of contract against B. before a justice of the peace, and recovered judgment in the sum of $75. B. appealed to the Common Pleas, whereupon A. filed an affidavit claiming to recover the $75 with interest. Subsequently A. filed a narr. wherein his damages were laid at $500, and on the trial a verdict was rendered in his favor for $140. Subsequently the court permitted the plaintiff to amend his narr. so as to make the amouut claimed thereby $100, and .upon his remitting all of the verdict above that amount, entered judgment in his favor. Held, that this was error. The defendant had a right to insist that no damages should be claimed or proved at the trial greater than $100. Hence, the verdict should have been set aside and the case tried anew.
    3. Senible, that if the plaintiff had, prior to the trial, asked leave to amend the narr. so as to reduce the damages claimed therein to $100, the court would have been justified in permitting the amendment.
    October 3d 1881. Before Sharswood, O. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas No. 1, of Allegheny county: Of October and November Term 1881, No. 172.
    Appeal from the judgment of a justice of the peace. Assumpsit. Yogle brought suit against Linton, before the justice, and recovered a judgment by default for $75, being the amount of damages claimed by the plaintiff for the non-fulfillment by defendant of a contract to farm a tract of land on shares. The defendant appealed to the Common Pleas, whereupon plaintiff filed an affidavit in which he claimed to recover $75, for damages as above stated; and subsequently filed a narr. wherein the damages were laid at the nominal sum of $500. The defendant filed an affidavit of defence and a plea, in which, among other things, lie set up want of jurisdiction in the court.
    On the trial, the plaintiff gave evidence tending to show that he had suffered damages to the amount of $140, for which sum the jury rendered a verdict in his favor. The defendant moved for a new trial, and in arrest of judgment, and the court, after argument made this order:—
    “May 23d 1881, on argument list and plaintiff allowed to amend his narr. by striking out $500 and inserting $100 as damages, and plaintiff now in open court remits all of the above verdict over $100. New trial refused and judgment directed to be entered for $100 and costs, on payment of verdict fee.”
    The defendant thereupon took this writ of error, assigning for error the above order, and the entry of judgment for $100.

      Whitesell & Son and Slagle (Wiley with them), for plaintiffs in error.
    On an appeal from a judgment by a justice the cause of action remains the same: Owen v. Shelhamer, 3 Binney 45. The trial was, in fact, had on a new cause of ‘action for a claim exceeding $100, and after a verdict for a sum in excess of the justice’s jurisdiction, the court permitted the narr. to be amended, and the excess to be relinquished, in order to make it appear by the record that the cause of action remained the same. While a court may correct its records so as to conform to facts, it cannot thus assume an unlawful jurisdiction, and afterwards alter the record, not in conformity with facts, making it appear to conform to the law: Collins v. Collins, 1 Wright 387 ; Bower v. McCormick, 23 P. F. Smith 427; 2 Troubat & Haley’s Pr. 185, 193.

      Geo. H. Quaill, for the defendant in error.
    There being no bill of exceptions to evidence, the bare record is before the court, which shows : a suit before a justice for $75, and judgment for that sum; an appeal to the Common Pleas; a narr. laying damages at $500 ; a verdict for $140 ; an amendment before judgment reducing the damages claimed in the narr. to $100; and a remittitur, by leave of the court, for all in excess of $100. This record shows no error. The plaintiff cannot, by

      relinquishing part of his claim, confer jurisdiction on a justice, but where the sum demanded is within the jurisdiction of the justice, and the jury give a sum beyond that, the plaintiff can remit the excess, and have judgment for the balance. This can be done at the bar of the court: Darrah v. Warnoch, 1 P. & W. 21; HcEntyre v. McEldnff, 1 S. & B. 18.
    When the demand is within the jurisdiction of the justice, it is not fatal to the appeal that a sum beyond his jurisdiction is laid in the declaration to cover the damages, it is only by a rule of court that a declaration in an appeal case is rendered necessary at all: Greenawalt v. Shannon, 8 Barr 465; Hoffman v. Dawson, 1 Jones 280 ; Collins v. Collins, 1 Wright 390 ; Funk v. Ely, 2 P. F. Smith 442. The amendment, however, as it was made, was wholly unnecessary, and the want of such amendment could not have been taken advantage of by the defendant below after a trial on the merits. Hence a usele'ss and unnecessary amendment of the record, harmless in itself, doing nobody injury, and surprising nobody, cannot be alleged as error: Greenawalt v. Shannon, 8 Barr 465; Hoffman v. Dawson, 1 Jones 280.
    Besides, every court of record has the power of amendment and may exercise that power at any time, before final judgment: Pa. & N. Y. R. R. & Canal Co. v. Bunnell, 31 P. F. Smith 414.
    October 31st 1881.
   Mr. Justice Sterrett

delivered the opinion of the court,

While it is true, in a certain sense, that on appeal from the judgment of a justice the proceedings are de novo, it is well settled that the cause of action cannot be changed, nor can the demand be increased beyond the limit of the justice’s jurisdiction, except so far as to embrace interest which has accrued since the institution of suit. A verdict and judgment for more than that is conclusive that the action was either erroneously brought or improperly prosecuted; Darrah v. Warnoch, 1 P. & W. 21. In the preseut case the plaintiff’s demand, before the justice, was $75, damages for breach of contract, and for that sum he obtained judgment, from which defendant appealed. In his affidavits filed in court, setting forth more fully the contract and breaches thereof, he claimed the same amount with interest from July 1st 1879. Thus far the record exhibits a cause of action clearly within the jurisdiction of the justice1; but the declaration, containing the common counts, to which is added an inartificially drawn special count on the verbal contract, lays the damages at $500. This might and should have been amended, by leave of court, so as to bring the case properly within its jurisdiction ; but, without offering to do so, the plaintiff proceeded to’trial, and having introduced testimony tending to prove the allegations contained in the special count, and items of damage, exceeding in the aggregate the jurisdiction of the justice, a verdict was rendered in his favor for $140, nearly twice the amount demanded by him on the hearing before the justice and subsequently in his affidavits of claim. The plaintiff in error could not be thus called upon to defend against a claim of damages, the items of which in the aggregate, as shown by the testimony as well as the verdict, greatly exceeded the jurisdiction of the court on appeal, fie was not bound to anticipate or defend against such excessive claim, nor would the court have been justified in entering judgment on the verdict as rendered. The result was a mistrial, and the verdict should have been set aside or judgment arrested ; but, after verdict, the court permitted the plaintiff to amend by striking out $500, and inserting $100, as damages, and then upon his remitting all of the verdict in excess of $100, judgment was entered for that amount. In this we think there was error. While the power of the court to authorize the amendment cannot be questioned, the circumstances were not such as to justify the entry of judgment for $100. Inasmuch as the defendant was not bound to anticipate or defend against a claim for damages exceeding $100, the verdict was invalid, and judgment thereon for the amount found by the jury would have been irregular and illegal. Nor was it competent for the plaintiff to cure the defect by remitting part of the verdict, or for the court to determine that $100 was the proper amount of damages for which judgment should be entered. The defendant below had a right in the first place to insist that damages, exceeding the limit of the justice’s jurisdiction, should neither be claimed nor proved, and in the next place he was entitled to have the jury pass upon the question of damages. The plaintiff, in his original demand supported by his own oath on the hearing before the justice, and in the affidavits of claim afterwards made in court by himself and his attorney, fixed his damages at $75. There is no good reason why he should have judgment for more than that sum with interest. It is not to be presumed that the plaintiff under-valued his own claim. If the declaration had been amended before or during trial, and the testimony as to the damages had been kept within proper bounds we would not feel disposed to disturb the judgment, but, as it is, we are of opinion that it cannot be sustained.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Mercur

license: Public Domain

text:
    In re Contested Election of John O’Neil.
    1. In the case of a contested election of a member of the house of representatives from a legislative district which comprises only certain wards of a city, the court, may, by virtue of the provisions of the act of Mny 19th 1874, § 9, Pampli. L. 210. if it shall deem that the contest has not been without reasonable cause, impose the costs upon the county wherein said legislative district is situate.
    2. It was not the intention of the legislature that the costs should in sucli ease be imposed upon the particular wards constituting the legislative district for which the member has been elected.
    3. Semble, in case of contested election of a judge or senator whose judicial or senatorial district comprises more than one county, that by virtue of the provision of the said section of the Act of 1874, and also by virtue of the provisions of the Act of May 8th 1876, § 1, Pamph. L. 148, the power to impose costs is coextensive with the district..
    October 4th 1881. Before Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ. Sharswood, C. J., absent.
    Certiorari to the Court of Common Pleas No. 2, of Allegheny county: Of October and November Term 1881, No. 185.
    This was an appeal and certiorari of the county of Allegheny from the decree of said court imposing upon i^lie county the costs of the contested election of John O’Neil, as a member of the house of representatives for the third legislative district of said county, comprising the fifth, ninth, tenth and twelfth wards of the city of Pittsburgh.
    After hearing, upon petition, answer and proofs, the court adjudged that the said John O’Neil was duly elected ; the court also found that the complaint was not without probable canse, and ordered “ that the county of Allegheny pay the costs of these proceedings, including a fee of $500 to the commissioner, and a fee of $400 to the stenographer who reported the testimony.” The total costs exceeded $1,500.
    The county solicitor thereupon presented a petition praying the court to reconsider and revoke that portion of the decree imposing the costs upon the county, for the following reasons :
    1. The contest, in this case, was not a contested election for a county officer. 2. The costs should have been imposed upon the legislative district in which the election was held. 3. A member of the house of representatives is not a county officer, and when his election is contested, and the court shall not decide that the complaint is without probable cause, the costs should be imposed on the legislative district, not upon the county, unless the district is co-extensive with the county. 4. The court should have imposed all the costs among the wards and municipalities of the whole district in which the contest was held, in the manner indicated in section 1 of Act of May 8th 1876.
    A rule was granted, which the court, after argument, discharged, whereupon the county of Allegheny took this appeal, assigning for error the decree imposing the costs of the proceeding upon the county, and the order discharging the motion to reconsider and revoke said decree.

      S. H. Geyer, county solicitor, for the plaintiff in error.—
    The court found that the contest was not without probable cause. In such case, under the 9th section of the Act of 1.74, Pamph. L. 210, the “proper district” shall be liable to pay all costs. By the apportionment Act of May 19th 1874, the county of Allegheny is entitled to fourteen members, and is divided mto six districts. On the same date (19th of May 1874) the Act which provides for the payment of costs in contested elections, was passed. Reading these Acts together the “ proper district ” mentioned in the ninth section of the act relating to contested elections of members of the house of representatives, means the same as in the apportionment act, viz; the legislative district in which the contest arose, and the court should therefore, under the ninth section of the Act of 1874, have imposed the costs of the contest in this case on the third legislative district, composed of the fifth, ninth, tenth and twelfth wards of the city of Pittsburgh, and not upon the county of Allegheny.
    Be this as it may, we contend, that the court erred in disregarding the commands of the act of May 8th 1876, Pamph. L j 148, which provides: “ that if any court or judge shall have heretofore decided, or shall hereafter decide, that the complaint was not or is not without probable cause, the said court or judge is hereby authorized and shall apportion all the costs among the proper districts, counties, cities, townships, boroughs, wards, school districts or ’municipalities of the whole district in which the contest is had, in such way as said court of judge shall think, just, and to compel, by order, the payment of such amounts so apportioned to each by the properly constituted authorities of each of the proper d stricts, counties, cities, townships, boroughs, wards, school districts or municipalities, as the payment of debts by the same can now be enforced.”
    The district in which the contest was had, was the third legislative district of Allegheny county, and the costs should have been apportioned among the wards and school districts of that legislative district, in the manner directed by the Act of 1876; but assuming, as the court below seemed to, that the county of Allegheny was the whole district in which the contest was had, then it was the duty of the court to apportion the costs among the municipalities of the county of .Allegheny, as to it would seem just; but in no aspect of the case had the court the right to impose them on the county. That portion of the Act of 1876 apportioning the cost is inconsistent with and repugnant to that portion of the ninth section of the Act of 1874, imposing the costs on the proper districts, &e.,‘ without any apportionment, and as far as that regugnancy extends, it is a repeal by implication of the older statute: In re Election of Barber, 6 Norris 392.-
    The practice of charging the costs of contested elections (which are generally extravagant) on the tax-payers of the county tends to encourage contests from selfish motives, and if by a strict construction of the act it be restrained charging them on the tax-payers of the immediate “ district in which the contest is had,” the evil will be lessened.

      F. M. Magee (with him West McMurray), for the defendant in error.
    The “districts” intended by the Act of 1876 (other than school districts) are always more than a county. The territorial classification recited in the act proceeds from the greater to the less, viz.: district, county, city, township, ward, &c.
    The act authorizes the court to direct an apportionment of costs among the proper districts, counties, municipalities, &c., of the whole district in which the contest is had, but this does not contemplate a district less than a county, in contests for representatives, for by section 12, the contest shall be commenced by petition of “ twenty qualified electors of the county.” Members of the legislature from any district within the county go from the county as the real legislative district. Art. II, sec. 17 of the constitution directs that “ every city containing a population equal to a ratio shall elect separately its proportion of the representatives allotted to the county in which it is located.” The division of the county of Allegheny by the apportionment Act into six districts does not affect the construction that the representatives elected by each district are representatives from the county ; they are elected at the general election in November, and not at the city and ward elections in February. The third election district (viz.: the four wards), is not a quasi corporation, and it has no “properly constituted authorities” who can be compelled to pay the costs. The Act directs the court below to apportion the costs “in such a way as the court or judge shall think just,” and being a matter in the discretion oí the court below, there is no appeal.
    October 17 1881.
   Mr. Justice Mercur

delivered the opinion of the court

The court found and adjudged O’Neil to be duly elected a member of the bouse of representatives in the third legislative district of the county of Allegheny. It further ordered the county to pay the costs of the proceeding. The power of the court to so impose the costs is questioned by the county, and presents the only contention in the case.

It is'argued, inasmuch as O’Neil was elected-in a district composed of four wards of the county, those wards only, and not the whole county, are legally chargeable with the costs. There is some plausibility in this view; but it cannot bear the test of a careful examination.

The power to impose costs is given by statute. Article II., section 17 of the Constitution declares “ the members of the house of representatives shall be apportioned among the several counties on a ratio ” stated therein. The Act of 19th May 1874 declares “ the county of Allegheny shall be entitled to fourteen members,” and then proceeds to divide it into six districts. Thus the county is entitled to the whole number specified; but probably to secure a more just representation of the sentiment of all the electors of the county, it is divided into districts for election purposes. For all other purposes the county remains entire. Although a member be elected by the people of a part of the county, he is nevertheless a representative of the whole county.

It is argued that under the 9th section of the Act of 19 th May 1874, Pur. Dig. p. 1872, and the 1st section of the Act of 8th May 1876, .Id. p. 2009, the costs must be imposed on that part of the county which participated in the election. The Act of 1874 does declare “ the proper district, county, city, township, borough, ward, school district or municipality, shall be liable to pay all costs, and the same shall be paid by the proper authorities, upon the order of the court or judge trying the case.” This act applies to contests in the election of president and additional law judges, to senators and members of the house of representatives, and to county, city, borough and township officers. The Act of 1876 authorizes the court to apportion the costs among the proper districts or municipalities of the whole district in which contest is had in such way as said court or judge shall think just, and “ to compel the payment thereof by the properly constituted authorities of each as the payments of debts by the same can now be enforced.”

The application of these acts is not limited to cases of con-

The application of these acts is not limited to cases of contested elections of municipal officers within a county. When the district of a judge or a senator is composed' of two or more counties, the power to impose costs is co-extensive with the district. Due and full effect can be given to the language and the spirit of the statute by applying it to “ districts” of that character. There each county forms a municipal corporation with “ properly constituted authorities,” who may be compelled to make payment. The district in which O’Neil was elected is not a municipal district. It is not a corporate body capable of suing or being sued. ■ It lias no “properly constituted authorities” with power to hind it, to levy and collect taxes, or liable to pay costs. There is no official thereof to whom an order of the court for payment could be directed. There is no treasurer; no fund. The Act declares the payment shall be compelled “ as the payment of the debts by the same can now be enforced.” As the law now makes no provision for enforcing the payment of any debt against such a district, it is clear the Act was not intended to charge, the costs thereon. As still further indicating the costs may he put on the whole county, the Act does not require the petitioners who initiate the contest to be qualified electors of the district in which the member of the house of representatives is elected ; but “ qualified electors of the county ” fully satisfies the language of the statute. The learned judge committed no error in bolding the county liable.

Judgment affirmed.


author: Mr Justice Teunkey

text:
    Nellis, Garnishee, versus Coleman, for use, etc.
    1. Where a contract of subscription in writing is entered into by several parties, the construction of such contract is for the court and not for the jury.
    2. A., B., aud several others signed a contract of subscription, whereby each agreed to advance a certain sum of money to a corporation to promote an industrial enterprise. The corporation contracted to repay the various advances as soon as possible, and undertook to pay to the various subscribers its entire income for the ensuing three years. A. paid the amount of his subscription. B. failed to do so. Subsequently the corporation passed a resolution abrogating the terms of the subscription, and in a few months failed. A. then brought an action against the corporation to recover the amount of his subscription, and obtained judgment. Subsequently he caused a writ of attachment execution to be issued upon said judgment, wherein B. was summoned as garnishee, but said writ was not issued until more than three years after the execution of the original contract of subscription. Reid, that B.’s contract was merely to loan money to the corporation upon the terms stipulated in the contract of subscription, that those terms being abrogated, the corporation having failed, and the time within which it was implied that he was to loan the money having passed, the company had no semblance of right to force him U> loan the money. Held, further, that A., standing in the shoes of the company, had no further or other rights than were possessed by it, and that the garnishee was therefore entitled to judgment.
    3. Where in a contract of subscription by several there is no agreement between the various subscribers to pay or to guarantee the payment of each other’s loans, and afterwards one subscriber fails to advance the amount which he has agreed to loan, another subscriber who has paid Ids subscription cannot, upon obtaining judgment against the borrower therefor, compel the delinquent promisor as garnishee in an attachment execution to pay .what he has promised to loan.
    4. Where on the trial of a cause a party has raised an insufficient objection to an offer of evidence, which is overruled, the evidence being admitted, lie cannot subsequently object to the testimony on other and valid grounds.
    October 4th 1881. Before Mercur, Gordon, Paxson,’ Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Error to. the Court of Common Pleas No. 1, of Allegheny county: Of October and November Term 1881, No. 23.
    Attachment execution, by Columbus Coleman against the Tradesmen’s Industrial Institute, defendant, and A. J. Nellis, garnishee.
    On the trial, before Collier, J., the following facts appeared : The Tradesmen’s Industrial Institute was incorporated December 19th 1874, under the Act of April 29th 1874, for the advancement of the industrial arts. The company entered into a contract for the erection of an exposition building on Smoky Island, Allegheny City, and in order to raise money to pay for the same, the board of directors devised a scheme for raising a guarantee fund of $50,000, in accordance with the terms of the following resolution, adopted July 16th 1875 :
    “ At a meeting of the board of directors of tlie Tradesmen’s Industrial Institute, the following preamble and resolution were adopted, to wit:
    “Whereas, It is apparent that sufficient funds cannot be raised by voluntary contributions to erect a building and provide for the incidental expense of holding an exhibition of the Tradesmen’s Industrial Institute the present year, therefore,
    “Resolved, That we in vite loans and advancements of money from members of the association and others to the aggregate amount of $50,000, upon the following terms, viz.:
    “ No subscription to be binding unless the sum of $50,000 is subscribed. All sums so advanced in the nature of loans for the purpose aforesaid, shall be repaid as soon as possible out of the income of the association from all sources, and in addition to the refunding of said principal sums, tlxe profits made by the association for three successive years shall be paid to the individuals making said advancements, pro rata.
    “ Therefore in consideration of the premises, we the undersigned, subscribe and agree to pay to the said association for the purpose and upon the terms aforesaid, the sums set opposite our names respectively. It is understood that said loan of $50,000 is to consist of fifty shares of the the par value of $1,000 per share.
    “ A. J. Nellis, .... 10 $10,000.
    “ Columbus Coleman, . . .10 10,000.”
    * * * *
    Other subscribers signed this paper, to the extent of over $50,000. Columbus Coleman paid the amount of his subscription, $10,000, to the company in cash, and some other subscribers paid in the amounts subscribed by them, but Nellis, who was president of the company, paid nothing on account of his subscription. On May 17th 1876, the board of directors passed the following resolutions :—
    “ Whereas, Certain gentlemen who have been cui’rently known as guarantors have advanced certain sums of money; and, Whex’eas, It is thought desirable to dispense with the guarantee fund, and mei’ge the debts of the institution under the control of the corporation; therefore, Resolved, That the corporation hereby agrees to issue bonds or notes to guarantors and creditors for tlxe amount due to, or in such manner as may be mutually agreed upon. Resolved, That for the money ad vanced by the guarantors and services rendered by them for the cor-poi’ation, such compensation shall be made as shall be detexxmined by the board. Resolved, That the notes or bonds of the cox1poration at rates of intei’est not exceeding ten per cent. (10 per cent.) per annum, signed by the president and treasurer, be iiiade and delivered to the guarantors and creditors for the amounts due them respectively, payable months-after date.”
    Coleman declined to accede to this arrangement, and brought suit against the company for the amount of his subscription, and recovered judgment in 1876 therefor, on the ground, as shown by the pleadings, that said subscription was a loan to the corporation. He afterwards, on June 17th 1878,-issued this attachment execution against Nellis, garnishee, claiming that Nellis was indebted to the company, inter alia, for the amount of his said subscription.
    The plaintiff offered in evidence the subsex-iption paper, and proved the signature of Nellis. Objected to, as incompetent and irrelevant; objection overruled ; exception.

      The defendant requested the court to charge that there was no sufficient evidence of subscription to the amount of $50,000, and therefore no subscription was binding; that the construction, of the subscription paper was for the court, and that it was a mere agreement to advance money to the company as a loan, and was not attachable by the plaintiff as a debt; that Coleman, having recovered judgment for the sum subscribed and paid by him, on the ground that it was a loan, cannot enforce payment of Nellis’s subscription as a debt; that by the resolutions of May 17, 1876, abolishing the guarantee fund, Nellis was absolved from any liability whatever to pay .his subscription.
    The’court declined to charge as requested, and submitted the paper to the jury, instructing them, substantially, that if they believed the subscribers agreed With the Institute and with each other to pay the sums set opposite their names, and that debts were contracted on the faith of such agreement, Nellis can be compelled to pay his subscription to the. Institute, or to its judgment creditor, notwithstanding the resolutions of May 17th 1876, because the board had xxo power to release him as long as there were others interested — otherwise if the jury found that it was a loan.
    Yei'dict for the plaintiff and against the garnishee, for the full amount claimed, and judgment thex’epn. The garnishee took this writ of enrol’, assigning for error the admission in evidence of the subscription paper; the refusal of the court to charge as requested, and the submission to the jui’y of the question whether the conti’act of subscription was a debt or a loan.

      Joel L. Bigham (A. M. Brown with him), for plaintiff in error.
    The subscription paper provided, “Nosubscription to be binding unless the sum of $50,000 is subscribed.” The plaintiff failed to prove the signatures to the full amount, and the paper was therefore improperly admitted in evidence. But, if it admissible, its construction was for the court, and its true construction, in our view, was embodied iu our points, which'should have been affirmed : Welsh v. Dusar, 3 Binney 329; Heath v. Page, 12 Wright 143; Beatty v. Insurance Co., 2 P. F. Smith 456.

      J. W. Kirlcer, for the defendant in error.
    On the faith of mutual subscriptions exceeding the proposed amount of the guarantee fund, the company contracted debts to a large amount, and thus the subscriptions became due and enforceable as debts, by the company or its creditors. Nellis, at least, was estopped from denying his liablitity, as he was the president and one of the promoters of the company ; he acted .as chairman of the executive committee, and enforced the subscription paper by collecting $24,000 from Coleman and others of the subscribers. The subsequent resolutions which, it is claimed, released the'unpaid subscriptions, were beyond the power of the board, and they were never carried into effect.
    October 31st 1881.
   Mr Justice Teunkey

delivered the opinion of the court,

The Tradesmen’s Industrial Institute invited loans and advances from its members and others, upon terms that no subscription should be binding unless $50,000 were subscribed ; that all sums so advanced in the nature of loans should bo repaid as soon as possible out of the income of the association from all sources, and in addition to refunding the principal sums, the profits for three years should be paid to the persons making the advancements pro rata; and that the loan should consist of fifty shares of the par value of $1,000 each. More was subscribed than was asked. Coleman and some others loaned the amounts they subscribed, but some of -the parties, including Nellis, neglected or refused to make the loan.

The subscription was a mutual agreement to loan money to the corporation, and was so understood and acted upon by all parties. The instant the money was advanced it became a debt of the corporation. "Whether the borrower had the right to pay it, or the lender to demand repayment, immediately, is immaterial in this action. Nor is the question in any way raised, whether a subscriber, who refused to make the loan, became liable for damages to the corporation, or to his co-subscribers. The contract was dated July 16th 1875, and within a year thereafter the company resolved to give its notes to all its creditors, discriminating in favor of those who had paid cash on the guaranty fund by contracting for a higher rate of interest. No subscriber was bound to loan on these terms. As early as March 1876, and before the date of that resolution, Coleman brought suit for the amount he had .loaned, declaring on oath it was a loan, and in due course of procedure recovered judgment. The company failed. After that resolution, and after its failure, the company had not a semblance of right to demand of a subscriber that he advance the money. But aside from the resolution and failure, if by the terms of the subscription it was implied that the loan should be for three years, that time had ended before this suit against Nellis. Under the uncontroverted facts the company could recover nothing on the contract for a loan. Its creditor, by attachment in execution, has no better right.

It is urged that in equity the plaintiff ought to recover against the garnishee. This is not apparent.. There ■ was no agreement betweeu the subscribers to pay, or to guarantee the payment of each other’s loans. Coleman did not promise to pay Nellis whatever sum he should loan to the company, nor did Nellis make such promise to Coleman. If this judgment stands Nellis will be compelled to pay another’s debt, although he in no wise became surety for it. Had Nellis made the loan he could have recovered judgment in like manner as Coleman did, and would have as good right to demand payment of Coleman, as Coleman has of him. Conceding the validity of the contract betweeu the corporation and Nellis, specific performaiice would not be decreed in equity, and at law the corporation could recover at most only nominal damages. Where two men agree' that each will loan a third a sum of money, aud one keeps and the other breaks his promise, no legal principle will enable the lender to compel the other promisor, as garnishee in an execution attachment, to pay what he had promised to loan to said third person.

The construction of the contract was for the court, and it was error to submit to the jury to determine whether the amount subscribed was a debt owing to the corporation, or a loan to be made. The learned judge rightly ruled that if it was a loau Nellis did not owe any thing on the contract.

The assignments of error relating to the admission of the subscription paper in evidence cannot be sustained. It is now too late to object that the handwriting oí tbe several subscribers was not proved. At tbe trial tbe objection was, “ incompetent aud irrelevant,” and that was rightly overruled.

Judgment reversed, and venire facias de novo awarded.


author: Mr. Justice Meboub delivered

text:
    Schneider versus New York and Cleveland Gas and Coal Company.
    1. Parties submitting a cause to arbitrators under the compulsory arbitration act may by agreement make fees for services performed or expenses incurred in the case taxable costs, although sucli fees and expenses may not be so made by statute.
    2. The parties to an arbitration under the compulsory arbitration act agreed in writing that the testimony in the case should be taken by a stenographer and that his fee should be taxed as costs and paid by tbe losing party. The stenographer took the testimony accordingly and the arbitrators found for defendant with costs of suit. The report of the arbitrators as filed with tbe prothonotary contained a statement of tbe amount of the stenographer’s fee, which was marked “ not paid.” Plaintiff filed exceptions to the amount of this fee, and afterwards, without paying any part of the same, apppealed from the award. The court, on motion of defendant, struck off the appeal because of the non-payment of the fee, in pursuance of the provisions of the Act of June 10th 1830, § 27, Pamph. L. 723. Held, that under the circumstances the court was right in thus striking off the appeal.
    3. The fact that after the appeal was taken there was a more specific taxation of the costs verifying the entire accuracy and correctness of the amount set forth on the record at the time the appeal was taken, did not change the-case nor relieve the plaintiff from his obligation to pay what the law required in order to perfect his appeal.
    October 4th 1881. Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Error to the Court of Common Pleas No. 2 of Allegheny county: Of October and November Term 1881, No. 19.
    This was an action on the caso, between the above named parties, for injuries done to the plaintiff’s land by the defendant’s mining the underlying coal. The case was referred to arbitrators and an award was filed in favor of defendant, with costs. The plaintiff entered an appeal, which appeal the court, on a rule taken by the defendant’s attorney, struck off, on the ground that at the time of taking said appeal, the appellant had omitted to pay the stenographer’s bill, which by agreement in writing was to be taxed as costs and paid by the losing party.
    The facts of the case, so far as material, are more fully stated in the opinion of the court.
    The plaintiff took this writ of error, assigning for error the action of the court striking off the the appeal from the award.

      A. Wiedman and R. E. Stewart, for the plaintiff in error.—
    At the time the appeal was taken, the stenographer’s bill although referred to in the award, had uot been filed by the prothonotary and taxed by him as costs in the case. The record shows that the appellant paid all costs legally due in the cause up to the 25th of September 1880, the date of perfecting his appeal, as per taxation of that date. The stenographer’s bill was not filed, and taxed by the prothonotary, until September 27th. While the court might have enforced payment of all lawful costs, although omitted in the taxation, such omission is not ground for striking off the appeal, if the appellant paid all costs taxed at the date of the appeal: Fraley v. Nelson, 5 S. & R. 236; Carr v. McGovern, 16 P. F. S. 457; Williams v. Hazlep, 2 Harris 157; McKeown v. Boudinot, 1 Browne 150; Stewart v. Jewell, 11 S. & R. 359.

      S. Schoyer, Jr., for the defendant in error, cited
    Bice v.
      Constein, 8 Norr. 477 ; Hewitt v. Furman, 16 S. & R. 135 ; Williams v. Danziger, 10 Norr. 232 ; Bingham v. Guthrie, 7 Harr, 419. The cases cited of accidental omission by the protlionotary are not apposite to the facts of this easel
    October 24th 1881.
   Mr. Justice Meboub delivered

the opinion of the court

This contention is as to the right of the court to strike off an appeal from the award of arbitrators under the following facts: They were chosen under the compulsory arbitration lawT. When they met it was agreed in writing by the parties, that the testimony should be taken by a stenographer {who was present) and his fee be taxed as costs and paid by the losing party. It was further agreed that he should be paid forty cents per printed page. He took the testimony, and, at the price named, his fees amounted to $89.60. The arbitrators awarded “ in favor of the defendant, together witli costs of suit.”

At the bottom of the paper containing the award filed, was written : “ Arbitrators’ fees, $105, paid by defendant. Stenographer’s fees, not paid, $89.60.” This award, with the entries at the foot thereof, was filed and entered by the prothonotary on the record on the 9th of September. On the 25th the plaintiff filed exceptions to the fees of the stenographer, and then, without paying any part of those fees, appealed from the award. By reason of their non-payment the court struck off the appeal.' This is assigned for error.

The Act of 1836 makes the payment of all costs that have accrued in the suit, a condition precedent to an appeal from the award. If they are not all paid through the fault or. negligence of the party appealing, the appeal will be stricken off, on the application of the opposite party. If, however, the non-payment is caused by the exclusive fault of the officer in withholding from the appellant a knowledge of the existence of a portion of them, the appeal should not be stricken off; but the payment of the omitted portion be enforced by attachment: Fraley v. Nelson, 5 S. & R. 234; Carr v. McGovern, 16 P. F. Smith 457 ; Palmer v. Wilkinson, 23 Id. 339.

Here not only did the record show the return by the arbitrators, of the stenographer’s fees; but the precise sum was entered on the docket, and the attention of the plaintiff was especially called thereto. He objected to a more formal taxation ; filed exceptions and declined to pay them.

The question now presented is, were these fees taxable costs in the case ? The written agreement of the parties expressly declared they “shall be taxed as costs and paid by the losing party.” Thus the agreement clearly negatives the idea that.his fees should be deemed a common-law claim, or enforced as such. They were to be taxed as costs and paid as costs. That is, they were to be taxed as the other costs were to be taxed, and to be paid as the others were to be paid. Such was the clear intention of the parties. The plaintiff was the losing party, and these fees were filed in the office and entered on the record in manner and form substantially like the arbitrators’ fees. Why then shall not due effect be given to the agreement ? It cannot be objected that there was no more formal taxation of them, for that was caused by the plaintiff’s own act. In so far as the arbitrators could control, or indicate the amount of these costs, they did so. It is not now contended that the sum returned was not correct for the services rendered, under the agreement. In a common law submission the arbitrators may award costs for a precise sum and subjoin it to the award : Hewitt v. Fur-man, 16 S. & R. 135. It is there said, “ It seems to have become the settled law in England, that in a suit pending, the arbitrators, unless otherwise stipulated in the submission, or directed by law, may award costs, and they are taxed by the officer.”

It is, however, urged'that the agreement of the parties cannot make services performed or expenses incurred, in the case, taxable costs, which are not so made by statute. We think the contrary is fully sustained by the authorities.

Hilling v. Drexell, 7 Watts 126, was a case of scire facias on a mortgage, wherein the mortgagor agreed, on non-payment of the debt thereby secured, a scire facias might issue to recover the principal and interest, “ and all costs, charges and expeuses of every kind ” to which the mortgagee might be put by reason of default in the payment. In the court below a judgment was recovered for $147.33 for costs and charges. In this court the right to recover therefor was distinctly affirmed if there had been the slightest proof to sustain it; but inasmuch as there was no evidence of such costs and expenses, the judgment was reversed. . . . Since then it has been repeatedly ruled that the maker of a bond or note is bound by his agreement to pay attorney’s commissions for collecting in case he makes default in the payment. It has been questioned whether they must enter into and form a part of the body of the judgment, or whether they may be indorsed as costs on the execution. The former view was taken in Mahoning County Bank’s Appeal, 8 Casey 158 ; Robinson v. Loomis, 1 P. F. Smith 78; and in McAllister’s Appeal, 9 Id. 204.

In Schmidt & Friday’s Appeal, 1 Norris 524, the judgmeut was on a single bill filed, authorizing an attorney’s commission of five per cent. It. was held the indorsement of the commission on tbe execution, although informal, was not material, and should be paid out of the proceeds of real estate sold on which the judgment was a lien. Thus, in either aspect of the case, the obligor by his agreement makes that costs which would not otherwise be so. He unites it to the principal debt, so that no separate action need be brought to enforce its payment. It is enforced either as an integral part of the judgment, or as a necessary incident thereto.

It is objected that giving these fees the effect of other costs, tends to abridge the right of appeal and defeat a trial by jury. This may be conceded. A party, however, may by his agreement wholly deprive, himself of a right of appeal and even of a writ of error : Andrews v. Lee, 3 P. & W. 98 ; Rodgers v. Playford, 2 Jones 181; Bingham’s Trustees v. Guthrie, 7 Harris 418 ; McCahan v. Reamey, 19 Casey 535; Shisler v. Heavy, 25 P. F. Smith 79; Watson v. Wetter, 10 Norris 385. It follows that he may undoubtedly clog or check the enjoyment of a right which he may wholly waive. The fact that after the appeal was taken, there was a more specific taxation of these costs verifying the entire accuracy and correctness of the amount set forth on the record when the appeal was entered, does not change the case. The item was legally there, and' with full knowledge thereof, the plaintiff declined to pay what the law required to perfect his appeal.

Judgment affirmed.

Gordon and Trunkey, JJ., dissented.


author: Mr; Justice Paxson

text:
    Reineman versus Robb.

    1. The assignee of a mortgage takes the same subject to all equities between the mortgagor and mortgagee, but not subject to the equities between the mortgagor and a prior assignee of the mortgage.
    2. A., having purchased a tract of land, paid one-half the purchase money in cash, and gave a mortgage on the tract for the remaining moiety. Subsequently A., by unrecorded articles of agreement, sold an undivided half interest in the tract to B., B. covenanting, in consideration of the transfer of said undivided half interest, to pay the mortgage when due. When the mortgage became due, B. paid the amount thereof to the mortgagee and took an assignment thereof. Subsequently he assigned the same to 0., who had no notice of the agreement between A. and B. A scire facias being subsequently issued on the mortgage by 0., against A. Held, that O. took subject to the equities of A. derived from the agreement with B., which equities were to be regarded as between the mortgagor and mortgagee, and that defendant was therefore entitled to judgment.

      October 4th 1881. Before Meecue, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, Oh. J., absent.
    • Error to the Court of Common Pleas, No. 1 of Allegheny county: Of October and November Term 1881, No. 171.
    Scire facias sur mortgage, by J. Harvey Robb, administrator of Benjamin Morrow, for use of A. S. Bell, now for use of Pittsburgh Bank for Savings, against Adam Reineman.
    On the trial, before Collier, P. J., there was no dispute as to the facts, which were as follows:
    The mortgage in suit was given October 20th 1866, by Adam Reineman to J. H. Robb, administrator of Benjamin Morrow, for $2,705.98, payable within one year from interest, being the balance of purchase money due by said mortgagor upon the mortgaged premises, consisting of a tract of coal, underlying the farm of the said Benjamin Morrow, deceased, which coal had been sold by Robb, as administrator, by order of the Orphans’ Court, and purchased by Reineman. Reineman paid one-half of the purchase money in cash.
    On December 14th 1866, Reineman agreed to sell to John M. Tiernan and A. S. Bell, one undivided half of the said coal, in consideration of Bell and Tiernan assuming payment of the said mortgage; whereupon the following agreement was executed under seal by Reineman, Tiernan and Bell:
    “It is agreed hereby between the undersigned, that they jointly own the coal underlying the farm of the late Benjamin Morrow, in Scott township, Allegheny county, Pennsylvania, sold to Adam Reineman by J. Harvey Robb, administrator of said Benjamin Morrow, at Orphans’ Court sale, upon the 6th day of last October. The aforesaid coal is fifty-four acres and nineteen perches (54 a., 19 p.) and is to be owned one-half by Adam Reineman, and the other half by John M. Tiernan and A. S. Bell; but the deed for it is to Adam Reineman.
    “ Adam Reineman has paid the one-half of the purchase money, amounting to twenty-seven hundred and five 98-100 dollars, and given his bond and mortgage for the balance, payable in one year; said bond and mortgage are dated the 20th day of October, A. D. 1866.
    “ John M. Tiernan and A. S. Bell are to pay said bond and mortgage when it becomes due ; and .they.hereby agree to pay the same promptly when due.
    “ The coal aforesaid is to be held by the parties hereto, and to be sold for joint benefit, when they think it advisable to sell it and can be done with profit to the undersigned.”
    “ We do hereby agree to the above for ourselves, our heirs, executors, administrators and assigns. Witness our hands and seals this fourteenth day of December, 1866.”
    This agreement was not recorded.
    After the mortgage fell due, A. S. Bell, on November 16th 1867, paid off the mortgage to Robb, administrator, but instead of having the same satisfied of record, took an assignment thereof to himself, which was, on December 9th 1867, duly entered on the margin of the recorded mortgage.
    On December 9th 1867, A. S. Bell, assigned of record the said mortgage to the Pittsburgh Bank for Savings for a valuable consideration, Bell being at that time one of the directors of said bank. No inquiry was made by the Bank of Reineman at the time of their purchase of the mortgage and no certificate of no defence was demanded by the bank. Bell paid the interest on the mortgage, until December 1873 (the mortgage having been extended on the books of the bank), after which time a director of the bank said to Mr. Reineman it was strange that a man of his financial standing should have a mortgage of that amount running so long. The bank then learned for the first time of the agreement between Reineman and Bell and Tiernan. Reineman then first discovered that the mortgage had been kept alive and assigned to the bank.
    By agreement of counsel, the court instructed the jury to find a verdict for the plaintiff subject to the opinion of the court on on the question of law reserved, to wit, “ whether under all the evidence, which is undisputed, the plaintiff is entitled to recover.”
    The court, after argument, entered judgment on the reserved point and on the verdict for plaintiff, Collier, P. J., filing the following opinion:
    “ The agreement between Reineman and Bell and Tiernan, set up as a defence, not having been recorded, did not lie in the chain of title under which the bank claimed as a purchaser, under the recording acts; and therefore it could not be charged with constructive notice. Nor do we think that the fact that A. S. Bell was a director at the time the bank purchased the mortgage, and was present thereat, is sufficient to charge the bank with notice : Custer v. Bank, 9 Barr 27.

      “ But it is contended that the bank was, bound to make inquiry of Reineman, whether he had any defence to the mortgage. It is true that the bank, by not making inquiry, took the risk of equities, failure of consideration, and set-off, between the mortgagor and mortgagee : Downey v. Tharp, 13 Smith 322 ; Taylor v. Gitt, 10 Barr 431.

      “ But we think it clear by the authorities that the bank was not bound to make inquiry as to equities between Reinfeman and Bell, fclie first assignee: Blair v. Mathiott, 10 Wright 263 ; Downey v. Tharp, 13 Smith 322.
    “ But it is further contended that the agreement between Reineman and Bell and Tiernan, was a payment of the mortgage by Reineman. We do not so regard it. We think, at most, it was a covenant by Bell and Tiernan to pay the mortgage, and then they to become absolute owners of the land.
    “We are therefore of the opinion that the bank, having given value for the mortgage, is entitled to recover.....Let judgment be entered for the plaintiff on the verdict.”
    The defendant took this writ of error, assigning for error the entry of judgment on the reserved question for the plaintiff.

      J. L. Koethen and C. Hasbrouck, for the plaintiff in error.
    Upon payment of the mortgage by Bell, it was ipso facto satisfied, so far as the mortgagor’s liability was concerned. A mortgage cannot, like a bill of exchange, be revivified after payment, by assignment to a bona fide holder. Bell had no right of recovery on the mortgage against Reineman, and could convey no better title to an assignee of the mortgage, who omitted to make inquiry of the mortgagor, where such inquiry would have developed the fact that the mortgage was paid. In such case,' the assignee of the mortgage takes it subject to all the equities of the mortgagor existing at the time of the assignment. Bell’s right, after the assignment of the mortgage to him, was an equitable interest in the mortgaged premises, and not in the mortgage. Hence, he stood in the position of one, who purchases land, subject to an existing mortgage, which lie assumes to pay as part of the purchase money. Such a purchaser cannot take an assignment of the mortgage and again assign it, so as to . give his assignee a right to recover against the mortgagor : Sellers v. Benner, 13 Norris 207.

      Sutton (with him Plumer and C. Magee), for the defendant in error.
    The question is, to what penalty is the assignee of a mortgage liable for not making inquiry of the mortgagor ? He is subject to set-off, or want of consideration, or other equities existing between the mortgagor and the mortgagee at the time of the assignment. He is not affected by any agreement between the mortgagor and strangers: Davis v. Barr, 9 S. & R. 141; McMasters v. Wilhelm, 4 Norris 218; Blair v. Mathiott, 10 Wr. 262; Downey v. Tharp, 13 P. F. Smith 322.
    November 7th 1881.
   Mr; Justice Paxson

delivered the opinion of the court,

The Pittsburgh Bank for Savings, the equitable plaintiff below, purchased the mortgage in controversy from A. S. Bell, who was assignee of the mortgagee, without inquiry of the mortgagor, and without obtaining from him a certifícate that he had no defence to the mortgage. In thus taking the mortgage without inquiry the bank took the risk of a defence by the mortgagor. This principle has been so frequently ruled that it is needless to cite the cases. It is equally well settled, however, that the assignee of a mortgage takes it subject only to the equities between the mortgagor and the mortgagee, and not to equities between the mortgagor and a prior assignee of the mortgage: Blair v. Mathiott, 10 Wright 262; Downey v. Tharp, 13 P. F. Smith 322.

Had the bank made inquiry of Reineman, the mortgagor, prior to taking the assignment from Bell, it would have learned that the mortgage was given by Reineman in part payment of a tract of coal which he had bought from the estate of Benjamin Morrow, deceased; that subsequently he entered into an arrangement with the said A. S. Bell and one John M. Tiernan, by which the said coal was to be held by Reineman for the joint benefit of the three, the agreement reciting that “ one-half is to be owned by Adam Reineman, and the other half by John M. Tiernan and A. S. Bell; but the deed for it is made to Adam Reinemanthat he, Reineman had paid the entire purchase money, one-half $4,500 in cash, and the other half by giving the mortgage in controversy; that Bell and Tiernan had covenanted to pay the mortgage as soon as it became due ; that Bell did pay the money to the mortgagee, but instead of having the mortgage satisfied of record, procured an assignment of it, and subsequently assigned it to the bank.

We are of opinion that these facts amount to payment by the- mortgagor. Of course the mere covenant by which Bell and Tiernan bound themselves to -pay. the mortgage, standing alone, would not be sufficient. But we have the additional fact that Bell actually paid the mortgagee, and paid him with the money of the mortgagor; that is to say, with the unpaid purchase-money left by Reineman in the hands of Bell and Tiernan for that very purpose, and which they had jointly covenanted to so apply. It was, therefore, a payment by Reineman by the hands of Bell. The act of Bell in taking an assignment of the mortgage to himself was a fraud. His covenant bound him to pay the whole of the mortgage, and he had no equity which would justify him in keeping it alive to compel contribution from Tiernan, or for any other purpose.

Tiie foregoing facts were in the direct line of the title of the bank, and inquiry of the mortgagor would have disclosed them. They were equities between the mortgagor and the mortgagee, and the principle ruled in Blair v. Mathiott and Downey v. Tharp does not apply.

The judgment is reversed and judgment is now entered for the defendant below upon the point reserved.


text:
    Appel et al. versus Byers et al.
    A testator devised property to his nephew A. B., and died, leaving two nephews of that name — -one legitimate, the other illegitimate. Held, that parol evidence was inadmissible to show that testator intended his illegitimate and not his legitimate nephew to be the object of his bounty.
    October 6th 1881. Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, O. J., absent,
    Error to the Common Pleas No. 2, of Allegheny county: Of October and November Term 1881, No. 130.
    This was an action of ejectment by Philip Byers against Tobias Appel for a tract of land. On petition the landlord of the defendant, who was also named Philip Byers, was admitted to defend. Subsequently, the death of the plaintiff being suggested of record, his heirs were substituted as plaintiffs.
    Both plaintiffs and defendants claimed title under the will of one Peter Byers, who had died seised of the land in controversy. Said will provided, inter alia, as follows :
    “ I will, devise, and bequeath to my wife Margaret, all my estate, be same real or personal, and wheresoever situated during her natural lifetime. It is my will, and I hereby devise that my nephew, Philip Byers, shall have and hold, after the death of my wife, all my real and personal estate.”
    At the time of testator’s death two persons were living known as Philip Byers; one was the father of plaintiffs, the other was the defendant.
    Testator’s widow died in 1880 seised of the land in controversy. Upon her death defendant entered and leased to Appel, whereupon the present suit was brought.
    On the trial the jury returned the following special verdict:
    We find that the testator, Peter Byers, deceased, died leav-. ing two nephews, one Philip, the son of Martin (legitimate); another, Philip, the son of Louis (illegitimate).
    We iind that the nephew intended by the testator to inherit was Philip, the illegitimate nephew, the son of Louis, and this from evidence aliunde the will and not from the will itself.
    We therefore find for the plaintiffs, the lieirs-at-law of Philip the illegitimate, the son of Louis, with six cents damages and costs of suit, subject to tlie opinion of the court upon the question of law, whether under the law and the evidence, there can be a recovery in favor of the illegitimate and against the legitimate nephew Philip, and if the court should be of opinion that there can be no such recovery at all, judgment to be entered for defendants, non obstante veredicto.
    The Court (Kirkpatrick, J.) subsequently entered judgment on this special verdict for plaintiffs, whereupon defendants took this writ, assigning for error the entry of judgment for plaintiffs on the special verdict.

      Miller (with whom was McBride and Goehring), for the plaintiffs in error.
    The single question is, was it competent for the jury upon evidence dehors the will to find against the legitimate nephew in favor of the illegitimate % The following authorities are clear to the effect that it was not competent: Wigram on Wills, page 99; In re Ayles Trusts, L. R. 1 Ch. Div. 282; Ellis v. Huston, L. R. 10 Ch. Div. 236 ; Tucker v. Seaman’s Aid Society, 7 Metc. 188. The cases in Pennsylvania upon analogous points are to a similar effect: Trustees v. Sturgeon, 9 Barr 322; Lewis v. Fisher, 2 Yeates 196; Schafer v. Ewen, 4 P. F. Smith 304; Green’s Appeal, 6 Wright 25 ; Johnston’s Appeal, 3 W. N. C. 52.

      Walter G. Orawford, for the defendants in error.
    The testator used a name in designating the object of his bounty, applicable to two separate persons. None of the authorities cited by plaintiffs in error are opposed to the admission of parol evidence in such case to show which of these two the testator meant. The law is clear that parol evidence is always admissible to explain a latent ambiguity in a will.
    November 7th 1881.
   Mr. Justice Mercur

delivered the opinion of the court,

Each party claims title to the land in question, under the same clause in the will of Peter Byers. He therein declares “ I hereby devise that my nephew Philip Byers shall have and hold, after the death of my wife, all my real and personal estate.”

The jury returned a special verdict wherein they found “ that the testator Peter Byers, died leaving two 'nephews, one Philip, the son of Martin, legitimate: another Philip, the son of Louis, illegitimate.” Also that the nephew intended by -the testator to inherit, was Philip the illegitimate nephew; the son of Louis, and this from evidence aliunde the will- and not from the will itself.” Thereupon the court entered judgment in favor of the heirs of Philip the illegitimate. This presents the main cause of complaint.

Looking at the language of the will we see it is clear and unambiguous as to the property devised and the object of the testator’s bounty. That object is his nephew Philip Dyers.

A bastard, at common law, is nullius filius. As he is the son of no one it is difficult to see how he can be the nephew of any one. If Philip the son of Louis was not the lawful child of a brother or sister of the testator, he could not be a lawful nephew of the latter. The question then is, when Philip the son of Martin clearly and in all respects satisfies the terms of the will, may it be shown by other evidence, that not he, but another person, was the one intended by the testator 2

Philip the son of Martin was lawfully the' nephew of the testator; Philip the son of Louis was not such a nephew. This is not the case of a question between two legal nephews of the same name, or of names in some respects different,. Nor is it a case where the name is not accurately expressed in the will.

A gift to children means legitimate children only, unless it appears from the context or from circumstances, that illegitmate children must have been intended: Hawkins on Wills, 80. The same rule applies to gifts to sons, issue and terms of relationship generally. Id.

In Cartwright v. Vawdry, 5 Ves. 530, the testator left his property to his children equally. He had four daughters, and it was not known that one óf them was illegitimate. She lived with him just as his other daughters. He treated her in all respects like the others, and intended that she should take with them, yet it was held she could not take — the lord chancellor declaring it is impossible in a court of justice, to hold that an illegitimate child can take equally with lawful children upon a devise to children.”

A man who had two illegitimate children by a certain woman married her, and the day after his marriage made a will in which, after leaving her his real and personal estate for life, he said ‘‘ I leave her at liberty to direct the disposal of the property amongst our children by will at her death in such manner as she shall see fit, and should she make no will, I desire that the property existing at her death shall be divided, as far as it may be practicable to do so, equally between my children by her.” The testator had no children born to him after this marriage: but lived for some time and always treated the two illegitimate children as his own children: yet it was held the testator died intestate as to the real and personal estate, beyond the interest given to the widow for her life : Dorin v. Dorin, Law Rep. 7 H. L. 568. It was there held that the word “ children ” in a will means prima facie, legitimate children ” as mncli so as if the word legitimate had been introduced before it.

In Elite v. Houstoun, 10 Law Rep. Chanc. Div. 236, the testatrix gave a sum in stocks to trustees upon trust to pay the dividends to her brother Charles Ellis and his wife Elizabeth for their lives and after the death of the survivor, the capital to be divided between all and every the children of her brother who should then be living, and the issue of such as shall then be dead. The brother had three children by his first wife; two children by his second wife Elizabeth before marriage, and one child after marriage. The fact that these two children were illegitimate was well known to the testatrix. She promised her brother if he manned Elizabeth,, she would provide for all his children by her; and thereupon the marriage took place! Thenceforth the testatrix continued on intimate and affectionate terms with the two illegitimate children, in all respects treating them as her nephews. Prior to the execution of her will she told them she would provide for them therein, and after its execution she told them she had so provided, and had made no distinction between them and their brothers and sisters. Still farther, when she made her will she gave instructions to that effect and understood the language used was sufficient to identify the two illegitimate children and to include them among the children of Charles and Elizabeth Ellis. Tet it was held that the illegitimate children must be excluded from the bequest; that the words of the will being distinct, no extrinsic evidence could be received to show what the intention of the testatrix was; the vice chancellor saying: “ I believe the law is firmly settled that where you have a bequest of property to a class of persons — children, nephews or nieces or any class you like — and you find in the class designated legitimate members, you can never admit illegitimate persons to share with them.” This case, decided only three years ago, but ruled on many previous authorities, shows the settled law in England. The fact that in Pennsylvania, the subsequent marriage and cohabitation of the father and mother of an illegitimate child or children, legitimates it or them under the statute, does not impair the force of the rule excluding illegitimate children. Here, after marriage, such children born before, take not as illegitimate children; but, having the legal taint removed, they take as if “ born during the wedlock of their parents.”

No American authority was cited, which maintains the right of illegitimate persons to share with those who are legitimate when the latter are found, and strictly and fully answer the description in the written will.

Without regard to illegitimacy, the better and more authoritative rule is, that the intention of the testator, as expressed in the will, must govern in its construction.

If, however, there is a mistake in the description so that no one corresponds to it in all respects ; but some one does in many particular's; and no other does who can be intended, such person will take. Or if the will be plain and clear on its face, and only becomes doubtful when applied to the subject matter, extrinsic evidence of the intention of the testator may be received. Unless there be some ambiguity or obscurity on the face of the will or difficulty in finding the person or object to which it applies, extrinsic evidence should not be received to divert the will from the intention therein expressed. In Tucker and others, Executors, v. Seamen’s Aid Society, 7 Metcalf 188, the testator gave a legacy to “ the Seamen’s Aid Society in' the city of Boston” and “The Seamen’s Friend Society” claimed the legacy. The latter offered to prove that the testator had no knowledge of the existence of the society named in the will; that he did know of the other society ; was deeply interested in its objects; had contributed to its funds, and had frequently expressed a determination to give it a legacy; that he directed the scrivener who wrote his will, to insert the legacy as made to said society; but the scrivener, not knowing the existence of the society, told the testator the name of the society was “ the Seamen’s Aid Society,” and the testator thereupon consented to have that name inserted. This evidence was held inadmissible, and that the society named and described in the will was entitled to the legacy.

It is true in Powell v. Biddle, 2 Dall. 70, tried in the Common Pleas of Philadelphia in 1Y90, it. was held that extrinsic evidence was admissible to award the legacy contrary to the express designation of the will, although the person accurately described therein, existed. No question of illegitimacy arose in that case. The case is without authority to control irs, and I do not find the principle there declared, recognized by a higher court as a correct exposition of the law. On the contrary, in W usthoff v. Dracourt, 3 Watts 240, the question of admitting such evidence is discussed by Mr. J ustice Posers. After declaring that courts of law have always leaned against parol evidence to explain the intention of the testator, and that it can be admitted only where the ambiguity arises from extrinsic circumstances, so that the evidence is admitted from necessity, he proceeds to say, “ The modern doctrine is, that where a subject exists which satisfies the terms of the will, and to which they are perfectly applicable, there is no latent ambiguity. Evidence is only admitted dehors the will from necessity to explain that which would otherwise have no operation.”

If the rule were held otherwise a person could feel no security in making a will. His intention, clearly expressed in writing, and the object of his bounty found, in all respects answering the description, might be defeated, and the statute relating to wills be made practically inoperative. If the language of this will applied to two legitimate nephews, so that either could take, but for the existence and claim of the other, then parol evidence would be admissible to prove which was intended.

In the present case there is neither patent nor latent ambiguity. The legitimate nephew precisely and in every respect answers the designation and description of the will; the other fails in law, to be a nephew.

It was alleged on the argument that the legitimate nephew was in truth named Philip A. Byers, although not generally so called, and therefore did not precisely answer the description in the will. A sufficient answer to this is, the special verdict finds no such fact. It declares there are two Philip Byers, one legitimate, the other illegitimate. Whatever is not found in a special verdict is to be considered as not existing. The verdict cannot be aided by extrinsic facts, even ir they appear on the record: Vansyckel v. Stewart, 27 P. F. Smith 124. The court must declare the law on the facts found alone. They must be self-sustaining, and cannot be aided by any outside support.

This verdict shows that Philip Byers, the legitimate nephew of the testator, fully satisfies all the terms of the will. To him they are perfectly and solely applicable. Being thus distinctly and accurately described, tliere is no ambiguity to be explained. There is no necessity to go beyond him to give full effect to the will. To do so would not be to solve doubts or explain any obscurity ; but to create them where none existed before. Under the facts found, the learned judge erred in entering judgment in favor of the heirs of the illegitimate person on the question of law reserved.

Judgment reversed, and now judgment in favor of the defendants below (plaintiffs in error), non obstante veredicto.


text:
    Hare versus Bedell.
    1. A defaulting purchaser at sheriff’s sale is not liable to respond in damages for loss ou re-sale of the property if. it appears that under the first sale he would have acquired a more valuable title than that which passed to tile purchaser at the last sale, or that the terms of the first sale were more advantageous to the purchaser than those of the re-sale.
    2. Where the sheriff’s return to a writ and the recitals in a sheriff’s deed show that a sheriff’s sale has taken place under one writ only, parol evidence is inadmissible to prove that the sale was. also made under an-' other writ in the sheriff’s possession at the time.
    October 6th 1881. Before Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, O. J., absent.
    Error to the Court of Common Pleas No. 1. of Allegheny county: Of October and November Term 1881, No. 128.
    Assumpsit, by John Ii. liare, sheriff of Allegheny county for use of Joel Bedell, for use of Margaret J. Bedell, against Á. W.. Bedell, to recover the difference between the price for which certain land was sold to the defendant at sheriff’s sale, the terms of which he did not comply with, and the amount which the said land brought at a subsequent sheriff’s sale.
    On the trial, before Stowe, P. J., the following facts appeared by the records produced: On September 25th 1874, W. and II. Caughey obtained a judgment with waiver of inquisition, condemnation, &c., against Joel Bedell, which became a lien on the premises in question, then owned by the said defendant. On November 19th 1874, Joel Bedell, by deed of that date, recorded November 30th 1874, conveyed thesaid premises to bis wife, Margaret J. Bedell. Under á li. fa. issued to October Term 1875, No. 539, on-the said Caughey judgment, the said premises were exposed to sheriff’s sale, October 9th 1875, and were knocked down to A. W. Bedell for $5,050. In December following, the sheriff filed his return, indorsed on said li. fa., that Bedell having failed to comply with the terms of sale, the premises remained unsold.
    On December 16th 1874, one.Whigham obtained a judgment with waiver of inquisition, &c., against the said' Joel Bedell, and under a fi. fa., issued upon said judgment to July Term 1876, No. 205, the same premises were exposed to sheriff’s sale and sold to one William Bedell for $4,500.
    A pluries fi. fa. had previously been issued on the aforesaid Caughey judgment, to July Term 1876, No. 206, which, at the time of the last mentioned sheriff's sale, remained in the sheriff’s hands for execution. After said sale the sheriff returned this pluries wi it with the following indorsement: “ For return of this writ see fi. fa. No. 205, July Term 1876.” The special return indorsed on the Whigham fi. fa. (No. 205 July Term 1876) certified “ that by virtue of this writ to me directed,” the premises were sold to William Bedell for $4,500. The sheriff’s deed to William Bedell recited the Whigham judgment, execution and sale, omitting any reference to the Oaughey judgment and execution.
    The plaintiff offered to prove by the parol evidence of E. H. Fife, the sheriff who executed and returned the said writs, that the land was in fact sold at the second sale under both wi-its, viz., the pluries fi. fa. on the Oaughey judgment and the fi. fa. on the Whigham judgment. Objected to, the record being the best evidence ; objection sustained ; exception.
    The defendant presented, inter alia, the following points :
    2. That the first sale under the Oaughey judgment, if completed, would have extinguished the title of Margaret J. Bedell, which she acquired subsequent to the date of said Oaughey judgment, as well as the lien of all judgments against Joel Bedell prior to her deed. That the second sale under the Whigham judgment, entered subsequently to Mr. Bedell’s acquisition of title, would only pass to the purchaser a right to contest her title on the ground of fraud, and would not discharge the lien of any judgments against Joel Bedell prior to the date of her deed.
    . . . . Affirmed.

    3. The second sale being of a different and less valuable title than that which the defendant bid for at the first sale, he cannot be charged with the difference between his bid at the
    first sale, and the price realized at the second sale.....

      Affirmed.

    The court directed (he jury to find a verdict for the defendant. Yerdict and judgment accordingly. The plaintiff took this writ of error, assigning for error the exclusion of the plaintiff’s offer to prove that the second sale was made under both writs, the affirmance of defendant’s points, and the instruction to find for the defendant.

      Joseph Forsythe, for the plaintiff in error.
    Though parol evidence is not admissible to contradict or vary a sheriff’s return to a writ, yet where ambiguity exists in it, parol proof of facts consistent with and not appearing on the face of the return may be heard in explanation and to show the truth : Shoemaker v. Ballard, 3 Harris 92. If the sheriff’s return be ambiguous, such construction will be put upon' it, as will conform to the presumption that he has done his duty: Phillips v. Kuhn, 7 Phila. 146. The return indorsed on the Oaughey pluries fi. fa., though uncertain in itself, was rendered certain by referring to the return on the Whigham writ. Heading the two together, it is clear that the sale was made under both writs, and thus the title passed by the second sale was equal to that passed by the first sale. Under the circumstances of this case, the parol evidence of the sheriff should have been admitted and submitted to the jury : Emley v. Drum, 12 Casey 123; Scott v. Sheakly, 3 Watts 50; Hoffman v. Danner, 2 Harris 25; Titusville Novelty Work’s Appeal, 27 P. F. Smith 103. Since the trial, the court, on petition of William Bedell, the purchaser at the last sale, permitted an amendment to the sheriff’s return to the pluries fi. fa. under the Oaughey judgment, reciting that the sale had been ■made under that writ, as well as on the Whigham execution, and the present sheriff, by direction of the court, executed a new deed to William Bedell, reciting that the sale was made under both writs. This amendment, though prudent on the part of the purchaser, was unnecessary. It may be considered as having been made nunc pro tunc, and justice to Mrs. Bedell requires that she be given the benefit on another trial of the record as it now stands.

      C. Hasbrouck, for the defendant in error.
    A statutory mode is provided by which defective and informal returns upon writs of execution may be amended by decree of the court after notice to all persons interested : Act of April 21st 1846, Purd. Dig. 659, pi. 130. In the absence of such proceeding, the im: port of a sheriff’s return must be determined by the court from the return itself. It is well settled that parol evidence to explain the return is inadmissible to prove the quantum of estate sold. The fact that subsequently to the trial of this case, the return was amended in the statutory mode, does not appear in this record.
    November 7th 1881.
   Mr. Justice Sterrett

delivered the opinion of the court,

It is very clear that a defaulting purchaser at sheriff’s sale is not liable to respond in damages for loss on re-sale of the property, if it appears that under the first sale he would have acquired a more valuable title than that which passed to the purchaser at the last sale, or that the terms of the first sale were more advantageous to the purchaser than those of the re-sale. The obvious reason of this is,' that the inferior quality of title, or the less advantageous terms of sale, would naturally effect a reduction of price, and we would be left without any reliable standard by which to measure the loss sustained by the refusal of the purchaser at the first sale to make good his bid.

The main ground of defence in this case was, that the title sold and conveyed at the last sale was far inferior in quality to that which would have passed to the defendant by the first sale, if he had paid his bid and received a deed. The first sale was by virtue of an execution based on the Caughey judgment against Joel Bedell, entered September 25th 1874, prior to the conveyance of the property by the defendant in that judgment to his wife. It is therefore clear that if the sale had been consummated, it would have extinguished the title of Mrs. Bedell, as well as the lien of all judgments against her. husband, entered prior to the date of his conveyance to her. If the last sale was made solely on the "Whigham judgment, entered December ,14th 1874, after the conveyance to Mrs. Bedell, it would pass to the purchaser only the right to contest her title, under the deed from her husband, on the ground of fraud, and would not discharge the lien of any judgments entered against him prior to the date of the conveyance : Byrod’s Appeal, 7 Casey 241; Fisher’s Appeal, 9 Casey 294; Hoffman’s Appeal, 8 Wright 95. The following special return is indorsed on the Whigham writ, viz.: “I do certify that by virtue of this writ, to me directed, &c., I did expose the premises within described to sale by public vendue or outcry and . . . . sold the same to William Bedell for $4,500,” &c. Ilis deed to the purchaser also recites the Whigham judgment, execution and sale by virtue thereof, and makes no mention of any other judgment or execution. Upon this state of facts, it cannot be doubted that the quality of the title acquired by the .purchaser is far inferior to that which would have passed to the defendant if the sale to him had been consummated. To meet the difficulty thus presented, the plaintiff relied on the fact that there was in the sheriff’s hands, at the same time, a pluries writ on the Caughey judgment, above mentioned, on which the following return was indorsed : “ For return of this writ, see fi. fa. No. 205 July Term 1876.” The. execution thus referred to is the Whigham writ. In connection with this, the plaintiff. offered to prove by the sheriff that the sale was in fact made on both writs, but the learned judge excluded the testimony as incompetent, and in so doing we think he was clearly right. When the return of the sheriff and the recitals in his deed show a sale on one writ only, it would be a dangerous precedent to permit him or any one else to come in on the trial of a cause and prove that the sale was also made on another writ at the same time. To do so would greatly impair the security of titles based on sheriff’s sales, and at the same time encourage official carelessness, of which there is quite enough already.

The act of June 16th 1836, prescribing the manner in which judicial sales of real estate shall be evidenced, requires that, “ The officer making sale of any real estate under execution . . . shall make return thereof, indorsed on or annexed to such writ, and give the buyer a deed duly executed and acknowledged ” : Purdon, 658, pi. 119. In thus requiring that 'the return shall not only be in writing, but also indorsed on or annexed to the writ, and that the sale shall be further evidenced by a deed to the purchaser, it was surely not contemplated that the return so made might afterwards be explained by parol testimony to mean something else. The act of April 21st 1846 makes ample provision for the correction or amendment of defective or informal returns: Purdon 659, pi. 130. After the trial of this case, the return in question was amended, in the regular and orderly way, at the instance of the defendant; but that cannot affect the question under consideration. It was not amended at the time of the re-sale. The state of the record, as it then stood, was such as to admonish bidders that the quality of the title then offered was inferior to that which would have passed by the first sale, and consequently the property would probably bring less than it did at the first sale.

For these and other reasons that might be added, we are of opinion that the testimony offered by the plaintiff was rightly excluded.

Judgment affirmed.

Merour, J., dissents, as there was amply sufficient to amend by, and the parol evidence should have been received.