author: Thompson, C. J.

text:
    Koch versus The Williamsport Water Co.
    1. By the charter of a water company it was required that before they diverted any stream, the court “ on the application of either party” should appoint men to ascertain the damages, &e. The company without any application or assessment of damages diverted a stream. Held, that an action on the case would not lie against the company, the remedy specially provided must be pursued.
    2. Either party might put the remedy into operation.
    3. The damages being consequential, it is not a constitutional requirement that they should be paid or secured before possession was taken or injury occurred.
    4., The non-payment does not change the remedy.
    April 2d 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lycoming county: No. 209, to January Term 1870.
    This was an action on the case, by August Koch against The Williamsport Water Company, commenced July 31st 1862.
    The declaration was in the ordinary common-law form for diverting the waters of a stream which flowed through the plaintiff’s land, by reason of which he was deprived of the use of the water generally; • and in a second count, for diverting the waters of the stream from his mill. ■
    The defendants were incorporated April 18th 1853, and authorized to construct works for the purpose of introducing water into Williamsport, and to take so much of the waters of any stream within three miles of Williamsport as should he necessary for the prosecution of their works.
    The act of incorporation further provided:—

      “ Section 8. If the parties cannot agree upon the compensation to be made to. the owners of such lands, &c., as may be used for for said water works, or to any persons who may be injured by the construction of said works, or diversion of the waters that may be used by the said company for the purpose aforesaid, it shall and may be lawful, after the surveys and location for said works are determined, and before entering on said lands for the purpose of erecting and constructing said works, or of diverting the waters that maybe used by said company, for the Court of Common Pleas of Lycoming county, on the application of either party, to appoint five disinterested freeholders of said county as arbitrators, who shall * * hear the parties, their proofs and allegations, and shall as soon as may be, ascertain and report what damages, if any, thé erection of the said works, or the diversion of said waters, may be to the owner or owners thereof, whose award shall be entered of record in said court, from which either party may appeal to the said court, in the same manner as from an award of arbitrators entered under the Compulsory Arbitration Law, 'and said appeal when duly entered shall thereafter be prosecuted in the said court as if the same had been an original action brought therein.”
    The case was tried October 18th 1869, before Gamble, P. J.
    The plaintiff gave evidence of the taking of the water from the stream by the defendants for the use of their works, and of the amount of damage sustained by him.
    The defendants gave no evidence.
    The court charged: * * * “ The defendant, therefore, clothed with the sovereign power of the Commonwealth to take and divert the waters of this stream, is amenable for compensation and damage to private property, only in the manner prescribed in the license granted. This specific remedy supersedes all others. Such is the law, and, like all law, is founded upon a rational basis. The remedy provided is adapted to the circumstances of the case. The compensation contemplated by the act, and proper to be awarded, is the price of a perpetual privilege, assessed once for all. All the damages, retrospective as well as prospective, can thus be ascertained and settled in one proceeding, and future litigation, or the necessity of it, avoided. The common-law remedy would lead to repeated and interminable litigation, and must ultimately result in defeating the purposes of the act of incorporation.
    “ We regret that the case is not before us in the proper manner to authorize you to pass upon its merits, since so much time has been devoted to its investigation. But we feel constrained to say to you that in this form of action we have no jurisdiction of the case, and must instruct you to render a verdict for the defendant.”
    The verdict was for the defendants.
    The plaintiff took out a writ of error, and assigned the instruction of the court for error.

      J. J. Metzgar and G. W. Youngman, for plaintiff in error,
    cited Reitenbaugh v. Chester Valley Railroad, 9 Harris 100; Sunbury & E. Railroad v. Hummel, 3 Casey 99; McKinney v. Monongahela Nav. Co., 2 Harris 66; Rex v. Robinson, 2 Burrows 803; Rhodes v. Cleveland, 10 Ohio R. 159; Harrisburg v. Crangle, 3 W. & S. 460; Const. of Penna., Art. 7, § 4; Art. 6, § 10.

      H. H. Cummin, H. C. Parsons and Armstrong Linn, for defendants in error,
    cited McKinney v. Monongahela Nav. Co., Harrisburg v. Crangle, supra; N. Branch Canal Co. v. Hireen, 8 Wright 418; Cumberland Valley Railroad v. McLanahan, 9 P. F. Smith 28; Buckwalter v. Black Rock Bridge Co., 2 Wright 286; Monongahela Navigation Company v. Coon, 6 Barr 379; Mifflin v. Railroad Company, 4 Harris 182; New York & Erie Railroad Company v. Young, 9 Casey 175.
   The opinion of the court was delivered, May 7th 1870, by

Thompson, C. J.

The peremptory direction of the learned judge below to the jury to find for' the defendant, was manifestly what the exigencies of the case demanded. There was a specific remedy provided in the act incorporating the company for the very matter for 'which the common law action was brought, namely, to recover compensation for an injury alleged to consist in the diversion of a stream of water to the prejudice of the plaintiff’s mill: see 8th sect. of the Act of 18th April 1853, Pamph. L. 724.

A statutory remedy must be pursued: Act of 21st March 1806. It applies in cases of the kind before us: Railroad Co. v. McLanahan, 9 P. F. Smith 28, and other cases.

The remedy is Reciprocal in this act.' Either party might put it in operation. It was no reason why the plaintiff below should not resort to it because the defendants did not before entry: Borough of Harrisburg v. Crangle, 3 W. & S. 460.

The 8th section of the act, as already said, covers the specific injury complained of by the plaintiff. It is necessarily consequential, but is directed to be paid. That it was not paid nor secured before possession taken or injury occurred is not a constitutional requirement: McKinney v. Monongahela Nav. Co., 2 Harris 65; and its non-payment does not change the remedy to enforce it. In this ease the remedy would cover the claim if otherwise good: Buckwalter v. Blackrock Bridge Co., 2 Wright 281. To that remedy the plaintiff below was bound to address himself. The case below was properly disposed of in the court below, and the judgment is affirmed.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    The Gettysburg Railroad Co.—McCurdy’s Appeal.
    1. By the Act of April 11th. 1862, the Supreme Court in equity may decree a sale under a corporation mortgage.
    2. The act is constitutional, falling within the express terms of art. 1, g 6 of the Constitution.
    3. It is no objection that the act was passed after the date of a mortgage, it only provides a new remedy.
    4. An act authorized a railroad company having power, &c., under the general railroad law of 1849 to execute a mortgage on their iands, franchises, &e. A mortgage executed to a trustee under the authority of the directors alone was valid.
    5. Bonds were issued under the mortgage, sold, interest paid on them, were recognised by a sequestrator, and received dividends of the funds in his hands, &e. This was a ratification of the mortgage.
    6. The mortgage was duly executed, acknowledged and recorded, and the corporation treated it as existing; this was sufficient evidence of its delivery, although never in the manual possession of the trustee.
    7. A holder of bonds as collateral may press a sale of such mortgage.
    May 24th 1870
    (at Harrisburg). Before Thompson, C. J., Agnew and Shakswood, JJ.
    Appeal from Nisi Prius, In Equity: No. 35, to January Term 1869.
    This was a bill filed, December 15th 1868, by George Swope, trustee, &c., under a mortgage of the Gettysburg Railroad Company and Caleb S. Maltby, a holder of bonds secured by the mortgage against the Gettysburg Railroad Company, Robert McCurdy, sequestrator of the road, &c., and Matthew Baird and others, judgment-creditors of the company.
    The Gettysburg Railroad Company was incorporated, March 24th 1850, to construct a railroad from Gettysburg to York. By a supplement passed the 5th of April 1853, the company were authorized to extend the road to the state line near Middleburg, in Franklin county, and to have the powers, &c., and be subject to the restrictions, &c., of the general railroad law of February 19th 1849. Another supplement was passed February 21st 1856, giving the company power to borrow $200,000, to issue bonds for the same, and to secure them by a mortgage on their lands, road, works, franchises, tolls, &c.; and provided that the mortgage, “when duly executed and recorded,” should “be good and valid as a lien on the subject-matter mortgaged to all intents and purposes.” On the 23d of May 1857, the railroad company executed a mortgage to George Swope. The mortgage recited that the directors, on the 16th of January 1857, had resolved to execute a mortgage of the road to Swope, in trust to secure bonds issued by the] company by virtue of the Act of 1856, payable in twenty years, with interest payable semi-annually, and that the president and treasurer be authorized to execute a mortgage under the seal of the company to secure the bonds, with the stipulation that if default should be made in payment of the interest for one year, the principal should become due, and the trustee might “commence proceedings at law by scire facias or otherwise, for the recovery of said sum.” The mortgage then proceeded in the usual form, conveying the road from Hanover to Middleburg with its franchises, locomotives, cars, lands, tolls, privileges, &e., under the stipulations of the resolution.
    ■ The bill set out as above, that the mortgage was recorded in Adams and York counties, was the first lien on the road and franchises, that the bonds secured were outstanding, that Maltby was the holder1 of 224 bonds, that interest had been in default for more than a year and the principal was therefore1' payable, that the company were insolvent, that Baird and certain others (naming them) were judgment-creditors and McCurdy was sequestrator, that Swope had been requested by holders of the bonds to proceed in law or equity, and deems it expedient to proceed in equity.
    The prayers were:—
    1. That it be decreed that said mortgage is a first lien. 2. That the amount due, principal and interest, of said bonds be ascertained. 3. That said company shall pay at a short date to be named by the court, what shall appear to be due. 4. That in default of payment, a decree directing a sale of the mortgaged premises. 5. General relief.
    Robert McCurdy, the sequestrator, demurred, because, 1. The places of abode of the plaintiffs were not set forth in the bill; 2. It does not aver that Maltby is the owner absolutely, or in his own right, of'said bonds, or that the same were sold to him by proper authority for a valuable consideration; 3. That this court has not original jurisdiction.
    He filed 3 pleas. 1. To the jurisdiction. 2. The recovery of a judgment in 1861 by McCurdy and others for $19,857; the award of sequestration, that the plaintiffs in the judgment should be parties. 3. That the bonds were held as collateral security for notes issued by the company; that they had not been resorted to by the holders of the notes, which remain subject to the pledge.
    Mr. Justice Sharswood at 'Nisi Prius overruled the demurrer and the 1st and 3d pleas; allowed the 2d plea to stand, with liberty to the plaintiffs to amend by introducing as defendants the parties named in the plea.
    The sequestrator answered, admitting the issuing of $200,000 of bonds, and that the directors ordered a mortgage to secure them to be executed, and averred that Swope never legally accepted the trust under the mortgage, and that it was never delivered to him, that $112,000 of the bonds with their coupons had, in 1857, 1858 and 1859, been deposited at the rate of 60 per cent, as collateral for loans by the company; that prior to June 4th 1862, but $81,000 of the bonds had been sold, and on that day this defendant had been appointed sequestrator, took possession of the road, and continued to operate it; when appointed there were $65,886 of the company’s notes outstanding with $112,000 of bonds as collateral for them; that Maltby became owner of these notes and the bonds as collateral; that the sequestrator filed his sixth account of the surplus earnings, and before the auditor Maltby claimed to participate in the distribution, was allowed to participate, but it was decided that he held the bonds as collateral. The other defendants averred the indebtedness to them, &c., and most of them admitted the execution of the mortgage ; none denied it; they prayed that an account he taken, that Malthy be enjoined from claiming more than his original indebtedness, and that upon payment of his debt he be decreed to deliver the bonds held as collateral.
    A replication was filed and an examiner appointed.
    On the filing of the examiner’s report, Samuel G. Thompson, Esq., was appointed master.
    He reported. * * * Thus, so far as the creditors are concerned, the due execution of the mortgage is admitted, and so far as this case is concerned, it cannot be successfully attacked by the sequestrator. In his answer, he admits the execution of the mortgage and the sale of $85,000 of bonds prior to June 4th 1862, but he denies that it was delivered to the trustee, George Swope. The evidence shows that the mortgage never was actually in the possession of Mr. Swope. The supplement of 1852 authorizing it, provides that when executed and recorded, it shall be a good and valid lien. The mortgage was duly executed under the corporate seal of the company, on the 23d May 1867, and on the same day Eobert McCurdy makes affidavit that the same was signed, sealed and delivered as the act and deed of the Gettysburg Railroad Company. The mortgage was recorded in the counties of Adams and York, and the recording fee in one of the counties was paid by McCurdy. After this was done, the company issued and sold its bonds, and it is too late for either the company or the sequestrator to deny its validity. The master, therefore, is of opinion that the mortgage dated May 23d 1857'to George Swope, trustee, is a first lien upon the premises mortgaged, and the holder’s bonds secured by it, are entitled to the benefit of all the rights and securities thereby given.
    “ It was argued that C. S. Maltby held his bonds as collaterals, and no decree could be made until an account be stated, and the amount due him ascertained. As to the fact whether C. S. Maltby purchased these bonds and held them simply as collateral, the testimony seems to point to the conclusion that he became the absolute purchaser.
    “ But even if he holds them as collateral he is entitled to a decree. A bond or chose which is transferred as collateral security, is put under the dominion of the creditor to make his claim out of it, and it is not in the nature of or subject to the incidents of a pawn or pledge: Muirhead v. 'Kirkpatrick, 9 Harris 241. In the present case Judge Sharswood, on the demurrer, said in his opinion: ‘ But admitting that Maltby is not the holder absolutely or in his own right, that forms no objection to proceeding by the trustee in the mortgage even as far as he is concerned, not to speak of the other bondholders.’

      “In regard to interest on over-due coupons, in the case of Beaver v. Armstrong, 8 Wright 63, it was held that interest was payable on them, and that where a company was insolvent no demand need be made.”
    The master reported that a decree (of which he annexed a form) should be made. 1. Declaring the mortgage a first lien on the road franchises, &c. 2. That the principal of $200,000 has become due and that the coupons attached to the bonds, except what has been paid by the sequestrator, are unpaid. 3. That the company pay to Swope within days, the principal and unpaid coupons with interest. 4. That in default of payment, the mortgaged property be exposed to public sale, upon notice in newspapers named, for at least weeks, $10,000 to be paid when the property is struck down, and the balance within days thereafter; “provided, &c.” He added another clause to the form not necessary to particularize.
    “ In case the latter part of the decree be not made, then the master submits in lieu of it:
    “ That the amount of the purchase-money received by the said George Swope on the sale of said premises shall, after deducting all commissions, counsel fees, costs, and expenses incurred by the complainants in this proceeding, be paid into court, to be distributed under such order of reference as may hereafter be made in respect thereto; and the said George Swope has leave to apply from time to time, as he may be advised, for the further direction of the court in carrying out this decree.
    “ And it is further ordered that the costs of this suit be paid by the Gettysburg Railroad Company.”
    Exceptions were filed with the master and they were overruled by him.
    They were as follows:—
    The master erred: 1. In deciding that the mortgage described in the complainants’ bill is a valid and subsisting lien on the property and franchises of the Gettysburg Railroad Company.
    2. In reporting a-decree in favor of complainants.
    3. In reporting the terms of payment of the purchase-money.
    4. In deciding that Caleb S. Maltby is a bonfi fide owner of $112,000 of the bonds of the Gettysburg Railroad Company, and that the same are not held by him as collateral security.
    5. In not ascertaining the amount of the indebtedness of the Gettysburg Railroad Company upon the bonds of the company and stating a specific account thereof.
    The report was filed, accompanied by the exceptions, was confirmed and a decree made accordingly.
    McCurdy, as sequestrator, and with other judgment-creditors, appealed.
    They assigned for error the overruling of the demurrer and plea to the original jurisdiction of the court, and also dismissing their several exceptions to the master’s report.

      D. Wills, for appellants.
    On the question of jurisdiction he referred to Const. of Penna., art. 5, § 6; Act of April 11th 1862, Pamph. L. 477, Purd. 1275, pl. 2. The mortgage being dated before the act, it does not apply: Mullock v. Souder, 5 W. & S. 198; Dwarris on Stat. 681; Fisher v. Farley, 11 Harris 501; Becker’s Appeal, 3 Casey 52. The bonds and mortgage were under the authority of the director's without the assent of the stockholders, and the act of the directors was in violation of art. 1, § 26, of Const., and ultra vires. The mortgage would be an annihilation of the franchises: Burgate v. Shortridge, 5 House of Lords Cases 318. The right for the directors to mortgage should be clearly expressed in the charter: Knapp v. Rutland & Wash. Railway, 2 Redf. on Railways 553. Neither possession nor acknowledgment and recording dispensed with proof of delivery: Sheppard’s Touchstone 57, 58; Kent’s Com. 455; Greenl. Ev., § 297; Chess v. Chess, 1 Penna. R. 32; Blight v. Schenck, 10 Barr 285; Critchfield v. Critchfield, 12 Harris 100. He referred to the Act relating to sequestration, June 16th 1836, Pamph. L. 775, § 74, Purd. 200, pl. 46; Act relating to insolvents, June 16th 1836, § 34, Pamph. L. 737, Purd. 542, pl. 42; Moncure v. v. Hanson, 3 Harris 385; Bevans v. The Turnpike, 10 Barr 174; Suydam v. Northwestern Ins. Co., 1 P. F. Smith 394.

      H. M. Worth, for defendant in error,
    referred to act of incorporation and supplements. The act refers to mortgages made before its passage: McElrath v. Pittsburg and Steub. Railroad, 5 P. F. Smith 189. A power to sell includes a power to mortgage: Lancaster v. Dolan, 1 Rawle 231. Directors can encumber a franchise: Gordon v. Preston, 1 Watts 385. If the corporation does not question the mortgage, no one else can: Curtis v. Seavill, 15 New York R. 47. A sequestrator cannot: Moncure v. Hanson, 3 Harris 385; Suydam v. Ins. Co., 1 P. F. Smith 394. A formal acceptance of the mortgage by the trustee was not necessary; Fell v. McHenry, 6 Wright 41. Maltby was owner of the bonds: County of Beaver v. Armstrong, 8 Wright 63.
   The opinion of the court was delivered, July 7th 1870, by

Agnew, J.

The objection that the Supreme Court has not original jurisdiction in this case is unfounded. The Act of 11th April 1862, Pamph. L. 477, declares that this court “ shalFhave and exercise all the powers and jurisdiction of a court of chancery in all eases of mortgages given by corporations.” This power has been so often exercised in the sale of railroads, and interests of so much magnitude hang upon our decrees, the public would be surprised to learn that this act is unconstitutional. It falls, however, within the express terms of the 6th section of the 5th article of the state Constitution, authorizing the legislature to “vest in the said courts (Supreme and Common Pleas) such other powers to grant relief in equity as shall be found necessary; and from time to time to enlarge or diminish their powers or vest them in other courts, as they shall judge proper for the due administration of justice.” It belongs to the legislature to determine the necessity for enlarging our equity jurisdiction, and it does not lie with us, because a party may have a remedy at law in some shape, to say that the legislature cannot give him another, by means of a chancery proceeding. The legal remedy may be very inadequate, as it has been found to be in relation to corporation mortgages, involving the right of way and the franchises of railroad and similar corporations. It is no objection that the Act of 1862 was passed after the date of the mortgage. It interferes with no vested right and injures no one. It merely provides a new and a better remedy for the default of the company, more pliable, and adapted to protect the interests of all the parties: McElrath v. Pittsburg & Steubenville Railroad Co., 5 P. F. Smith 189, was a strong ease by reason of the remedy provided in the mortgage itself, and yet we held the Act of 1862 applicable to that case.

The 2d error is also unfounded. The Act of the 21st of February 1856, Pamph. L. 84, merely conferred an additional authority on the directors to mortgage the franchises of the road. Under the charter and the General Railroad Act of 1849, the corporation had power to borrow money and pledge all its property, rights and privileges for the payment. The substance of the thing, therefore, existed before. The mortgage in this case was executed on the 23d day of May 1857, and recorded on the same day. Bonds were issued under it, negotiated, interest paid on them, recognised by the sequestrator, and by auditors appointed to distribute funds in the sequestrator’s hands; and in almost every way the mortgage has been recognised as a valid and binding instrument down to the time of the application to make the sale under it. Under these circumstances there has been a clear recognition, by way of ratification at least, of the power conferred in the Act of 1856 : Angell & Ames on Corporations, 2d ed., 51 to 55; Gordon v. Preston, 1 Watts 387; Fell v. McHenry, 6 Wright 41.

There can be no doubt of the lien of the mortgage. It was duly executed, acknowledged and recorded, and the corporation acted upon its valid existence, as did others receiving bonds under it. The fact, therefore, that Swope, the mere trustee, had not manual possession of the paper does not invalidate it, or detract from its delivery in law. The evidence of such delivery is ample to carry the benefit of the trust to those for whose use the mortgage was intended: Miller’s Estate, 3 Rawle 317; Blight v. Schenck, 10 Barr 285; Stinger v. Commonwealth, 2 Casey 428; McKinney v. Rhoades, 5 Watts 343; Critchfield v. Critchfield, 12 Harris 100.

The master finds that Maltby is the absolute owner of the $112,000 of the bonds which had been hypothecated to secure debts of the company. ' The sale was made under a resolution of the company passed and carried into effect while McCurdy, the sequestrator, was a director. There seems to be some evidence of his assent to the sale. But whether this be so or not need not be decided; for Maltby, if a holder of the bonds, even as a collateral security only, would be entitled to press for a sale under the mortgage to make his security available.

Finding no error in the decree of the Court of Nisi Prius, it is affirmed, and it is ordered, that a decree be entered in the form drawn up by the master, filling the blanks, as follows: third section “thirty” days; fourth section, first blank, “four;” second blank, “thirty.” And omitting from the fourth section all that part beginning with the word “provided,” and ending with the words “ dividends payable thereon,” and inserting in liéu thereof the alternative part reported by the master; and the costs of this appeal are ordered to be paid by the appellant.


text:
    Breneman’s Estate.
    1. On a hearing before auditors in the distribution of a decedent’s estate, a creditor was admitted, under obj ection, to testify, there was evidence from other witnesses in support of his claim. Held, that the exception to his admission was fruitless, unless it were shown that his testimony led the auditors into some specific error.
    2. Such testimony would not have the same effect as if it had been in a common-law action; it would affect only when it might mislead or be the only testimony on the subject in dispute.
    3. Items sustained only by such testimony might be stricken out, but the balance of the account would be sustained, if the evidence supported it.
    4. The accountant was not a competent witness under the Act of 1869.
    5. Quaere, whether the accountant was competent under the 56th section of Act of March 29th 1832, authorizing auditors to examine accountants.
    6. It seems that a party is to be admitted only under the mandate of the creditors and cannot offer himself as a witness.
    7. Mylin’s Estate, 7 Watts 64, recognised.
    May 2d 1870.
    Before Thompson, C. J., Read and Sharswood, JJ.
    Appeal from tbe decree of the Orphans’ Court of Lancaster county: In Mary Breneman’s Estate. No. 36, to May Term 1870.
    The account of Jacob S. Hershey, administrator, &c. of Mary Breneman, deceased, showed a balance in his hands amounting to $3073.99. It was referred to auditors to distribute this balance * to and among the creditors and heirs of the decedent. Before the auditors the accountant presented a claim for $50 as agent of decedent in attending to her property for four years; one for boarding, lodging, clothing, nursing, &c., for 268 weeks, at $13 per week, amounting to $3484, deducting $671.31 received by him. To these charges the next of kin objected. The services of the accountant as agent were rendered in collecting interest due the decedent and paying it over to her. There was a very large amount of testimony on both sides heard by the auditors, •on the questions raised by the objections. Some tending to show that there was a contract between the decedent and the accountant for her support, &c., and that the amount charged was reasonable ; and on the other side that there was no contract and that the amount charged was more than it should be.
    On the question of the charge for boarding, &c., Ann Hershey, wife of the accountant, was called by him and examined without objection before the auditor.
    The accountant was called and objected to generally on the ground of incompetency. He testified mainly as to collections by him of interest due the decedent, with which he had charged himself in his account, less slight deductions for expenditures which he had made on her account; the interest was the sum of $671.31 which he had credited to her on his charge for boarding.
    The auditors reduced the charge for boarding to $2412, from which they deducted the $671.31, and allowed him interest on the balance, amounting in the whole to $2074.39, and so reported.
    The next of kin filed an exception to the report, viz.: “ The court allowed the administrator and claimant to testify.”
    The Orphans’ Court confirmed the report.
    .The next of kin appealed to the Supreme Court and assigned for error that “ The court erred in allowing J. S. Hershey, the administrator and claimant, to testify in his own case.”

      A. Herr Smith, for appellants,
    referred to Act of 15th April 1869, section 1, Pamph. L. 30, Purd. 1566, pl. 1.

      H. Ellmaker, for appellees.
   The opinion of the court was delivered, May 12th 1870, by

Thompson, C. J.

The exception to the admission of the accountant Hershey, to testify as a witness before the auditors, is fruitless, unless it be shown that his testimony led the auditors into some specific error. That has not been done. The main charge against the estate of the defendant, was, for boarding her. The fact of the boarding was not a disputed fact, and there was enough in the testimony to enable the auditors to fix the amount proper to be allowed per week. On these subjects, however, the accountant did not testify. His testimony had reference exclusively to an explanation of a credit allowed the decedent’s estate, and we were not shown wherein it injured the appellants and misled the auditors. Without specific injury being shown, we cannot say the court ought to have set aside the work of the auditors. Indeed this could not be done, unless this were clearly shown.

The idea of the learned counsel for the exceptants seemed to be, that the error of admitting an incompetent witness to testify, even on a single point, before auditors, was to have a like effect on the entire report as the same thing would have in a common law action. But this is a mistake; it only would affect so far as it would mislead, or where it might be the only testimony to support an item, or the entire subject -of dispute. Items so sustained might have to be stricken out for want of competent testimony, but the balance of the account would be sustained, if other evidence supported it. We think the accountant was not a competent witness, under the Act of 1869; nor perhaps under the 56th section of the Act of 29th March 1832, authorizing auditors to examine the parties on oath to an account before them. The authorities seem to hold, that the party is only to be admitted to answer on oath under the mandate of the auditors, and cannot offer himself as a witness: Mylin’s Appeal, 7 Watts 64. But all this is really of no consequence here, for no item in the account seems to have .been carried alone by the testimony of the accountant. We cannot say the auditors erred in any portion of their finding. In the absence, therefore, of specific error shown to have been committed by them, the court were right in confirming their report.

The decree of the court below is affirmed, and this appeal dismissed at the costs of the appellant.


author: Sharswood, J.

text:
    Summy versus Hiestand.
    1. When an agreement to refer is made in an action pending in court and is confined to matters pending in that action, it is under the 6th section of the Act of June 16th 1836 (Arbitration).
    2. This section is a re-enactment of the Act of 1705; no express agreement that the submission shall be a rule of court is necessary.
    3. Without payment of costs a suit cannot be discontinued.
    4. An agreement in a pending suit was: “ It being desired by the parties in the above case that the same shall proceed no further in course of law, they hereby mutually agree, by and between themselves, to refer all matters relating thereto at variance between them to the decision and adjustment of three disinterested persons, whose report and action Bhall be final; and in whose decision the said parties hereby mutually pledge their honor as men to abide.” The award under the agreement was a sufficient foundation for a judgment, but required the approval of the court.
    5. The award was filed and judgment entered on the judgment index without the approval of the court, this was a clerical error and a nullity.

      6. The award was afterwards approved and judgment directed to he entered; this was a final judgment.
    7. The neglect of the prothonotary to enter -it did- not affect its validity as a judgment between the parties, although it might endanger the lien as to third persons.
    8. Benjamin v. Benjamin, 5 W. & S. 562, Wall v. Fife, 1 Wright 394, Brendlinger v. Yeagley, 3 P. F. Smith 464, distinguished.
    May 2d 1870.
    Before Thompson, C. J., Read and Sharswood, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 1, to May Term 1870.
    On the 26th of February 1867, John Hiestand, Jr., brought an action of slander against John H. Summy, and the following agreement was filed in the case:—
    “And now, to wit: August 6th 1867. It being desired by the parties in the above case that the same shall proceed no further in course of law, they hereby mutually agree, by and between themselves, to refer all matters relating thereto at variance between them to the decision and adjustment of three disinterested persons, whose report and action shall be final; and in whose decision the said parties hereby mutually pledge their honor as men to abide.”
    Arbitrators being chosen under the agreement, they awarded, August 24th 1867, in favor of the plaintiff, $508.33. The award was filed the same day, and this entry was then made in the judgment index —

      Defendants. j Plaintiffs. \ When Entered. \ Meal Debt. [ Term. J Number.

    Summy, John H.- j Hiestand, John, Jr. I August 241867 I $508.33. | April, 1867. |' 104.
    On the 9th of September, the defendant obtained a rule to strike off the entry of the award of arbitrators; the rule was discharged November 14th 1868. On the same day the plaintiff obtained a rule to show cause why the award should not be approved by the court and entered as a judgment against the defendant. This rule was made absolute April 17th 1869, Long, P. J., delivering the opinion of the court.
    The defendant took out a writ of error and assigned for error,
    1. The refusal of the court to strike off the entry of the award.
    2. Directing judgment to be entered on the award.

      N. Ellmaker, for plaintiff in'error,
    referred to Benjamin v. Benjamin, 5 W. & S. 562; Wall v. Fife, 1 Wright 394: Act of June 16th 1836, § 6, Pamph. L. 717, Purd. 51, pl. 6.

      J. B. Livingston and W. A. Wilson, for defendant in error,
    cited Henneigh & Co. v. Kramer, 14 Wright 530; Christman v. Moran, 9 Barr 487; Gallup v. Reynolds, 8 Watts 425; Hughes v. Peaslee, 14 Wright 257; Brooke v. Bannon, 3 W. & S. 382; Browning v. McManus, 1 Wharton 177; Graham v. Graham, 2 Jones 128; Mitchell v. Wilhelm, 6 Watts 259; Bemus v. Clark, 5 Casey 251; Wall v. Fife, 1 Wright 394 McAdams v. Stillwell, 1 Harris 90. A formal agreement to make the submission a rule is not necessary: Harris v. Hayes, 6 Binn. 422; Large v. Passmore, 5 S. & R. 51; Bemus v. Quiggle, 7 Watts 364; Kimmel v. Shank, 1 S. & R. 24; Okison v. Flickinger, 1 W. & S. 257; Massey v. Thomas, 6 Binn. 333; Buckman v. Davis, 4 Casey 214; Coleman v. Lukens, 4 Wharton 347; Ford v. Keen, 1 Harris 179.
   The opinion of the court was delivered, May 12th 1870, by

Sharswood, J.

'That there was an action pending in the court below and that the agreement of reference was confined to the matters in variance in that suit does not leave it open to contention, that it must be considered as having been made under the sixth section of the Act of June 16th 1836 (Pamph. L. 717) This section was a mere re-enactment of the Act of 1705, in the construction of which, as well as of the present law, it has been uniformly held that no express agreement that it shall be made a rule of court is necessary. A reference to the pending action is sufficient: McAdam’s Executors v. Stillwell, 1 Harris 90; Buckman v. Davis, 4 Casey 24; Painter v. Kistler, 9 P. F. Smith 331. It would be a strained interpretation of a submission by the parties themselves evidently without the assistance of their counsel, to hold that the clause providing that the suit “ should proceed no further in course of law,” meant that the action should be discontinued, and thus be taken entirely out of court. Nothing is said as to the costs already incurred, and without the payment of them the suit could not be discontinued. The case bears no resemblance to Brendlinger v. Yeagley, 3 P. F. Smith 464, for there besides an agreement “ to stop all further proceedings at law,” the submission was not confined to matters in variance in the cause, but embraced “all former transactions between the parties.” Neither has Benjamin v. Benjamin, 5 W. & S. 562, any applicability, for that was an award under the first section of the Act of 1836 of a controversy for which no action was pending. In Wall’s Administrators v. Fife, 1 Wright 394, there was an agreement to enter an amicable action and to refer at the same time, and the judgment entered on the award pursuant to the agreement was sustained without compliance with the provisions of the first and second sections of the Act of 1836. That was said not to be referable to any statute in terms, but that it was competent to the parties to settle their differences in their own way.

The award in this case was therefore a sufficient foundation for a judgment, but no' doubt it required the approval of the court, which was formally given, when the rule to show cause why the award should not be approved and entered as a judgment was made absolute. That was a final judgment for the amount found by the arbitrators, and should have been so entered by the prothonotary on the judgment docket. His neglect or omission to do so may perhaps endanger th'e lien of it as to third persons: Bear v. Patterson, 3 W. & S. 236; but as between the parties there is a valid final judgment of record: Montelius v. Montelius, 5 Penna. Law Journal 88. The prior entry upon the index of the award before approval was a mere clerical error — a nullity — and no doubt the court, if applied to by the defendant, would have ordered it to be stricken off.

Judgment affirmed.


author: Read, J.

text:
    Keener et al., to the use of Bitzer, versus Cross.
    1. Administrators sold real estate of the decedent, and took a note under seal for the purchase-money in their individual names, one of the administrators transferred the note to pay his private debt. Held, that the transferee took it subject to the trust for the estate of the decedent and derived no beneficial interest in it.

      2. The obligor paid the other administrator. Held, that the payment was correct.
    May 2d 1870.
    Before Thompson, C. J., Read and Sharswood, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 35, to May Term 1870.
    This was an action of debt in the names of Joseph S. Keener and Emanuel Keener, to the use of Uriah Bitzer, against C. B. Cross. The writ was issued May 5th 1868.
    The cause of action was the following note:—
    “Manheim, June 17th 1867.
    “ On the 1st day of April next I promise to pay Emanuel Keener and Joseph S. Keener, or to one of them, their or either of their order, the sum of five hundred and twenty dollars, lawful money of the United States, being for value received, as witness my hand and seal.
    C. B. Cross, [l. s.]”
    The note was endorsed “Joseph S. Keener,” “Uriah Bitzer.”
    On the trial before Long, P. J., August 26th 1869, the plaintiff gave the note in evidence, and rested.
    The defendant then proved that the Keeners, the obligees in the note, were administrators c. t. a. of George Keener, deceased; that under the directions of the will they sold real estate of the decedent to her, and took the note in suit in payment of the purchase-money; the note passed into the possession of Joseph S. Keener; she paid the amount of the note, April 2d 1868, to Emanuel, the other administrator. She gave evidence that Bitzer took the note from Joseph in payment of a debt due by him to Bitzer; Emanuel demanded payment from the defendant; at the time she paid she knew that Bitzer held it; Emanuel gave her security to indemnify her; Joseph was insolvent.
    In rebuttal the plaintiff gave evidence that he had received the note from Joseph in payment of a debt due to him from Joseph. He gave notice to the defendant that he held the note; she said she had given the note; said that was all right; said she would be ready to pay it when due; that it would be in Manheim Bank, and directed him to send the note there and it would be paid; Emanuel gave him no notice.
    In answer the defendant gave evidence that when Bitzer called on her about the note, she said she would pay the note; that it made no difference to her whom she paid; she did not promise to pay him.
    The defendant’s points were:—
    1. The promissory note, on which this suit was brought, being non-negotiable, the alleged equitable owner, Uriah Bitzer, took it from Joseph S. Keener, subject to any defence which defendant has against the payment thereof.
    2. The note in question belonged to the estate of George Keener, deceased, and therefore was trust-money; it follows that Joseph S. Keener had no right to sell or dispose in any manner said note in payment of his own indebtedness, and if he did, the note passed into the hands of Mr. Bitzer subject to the trust.
    3. If the jury believe that the note in question for $520 was given to Emanuel Keener and Joseph S. Keener for the purchase of real estate of their father’s estate, of which they were administrators, and that Joseph S. Keener gave it to Uriah Bitzer to pay or secure an individual indebtedness of said Keener to Bitzer, the verdict must be for the defendant.
    The court answered :—

      “ 1. Answered in the affirmative.

      “ 2. If this note was received as collateral security to indemnify Uriah Bitzer, then he stands in no better situation than Joseph S. Keener, and the note, or the proceeds thereof when collected, would have to be applied to any trusts to which it was liable. Nay, I am of the opinion that if this note was held in trust for the estate of George Keener, one of the trustees could not, in fraud of his trust, and without the knowledge of the other or his consent, transfer the note to another for his own individual debt. Provided the circumstances in the case were sufficient to awaken a suspicion of the character of the note, or calculated to awaken a doubt in a reasonable mind.
    “ 3. This point is answered in my reply to the defendant’s 2d point.

      “4. If this note now in suit was paid by the defendant to Emanuel Keener, one of the obligees in the note, and he now holds the proceeds thereof for the payment of the debts or legatees of George Keener, then, according to the testimony, as there was no legal transfer, the obligee was justified in making such payment, unless it was done to defraud Uriah Bitzer.”
    The verdict was for the plaintiff for $520.
    The defendant took a writ of error, and assigned for error the answers to the points which were denied.'

      W. R. Wilson and W. W. Brown, for plaintiff in error.
    An administrator, &c., cannot sell the note of the estate: Miller v. Ege, 8 Barr 352. A court of equity will follow a fund: Farmers’ & Mechanics’ Bank v. King, 7 P. F. Smith 202; Pitts. & Conn. R. R. Co. v. Barker, 5 Casey 160; Petrie v. Clark, 11 S. & R. 377. Submitting the question of fraud-where there is no evidence is error: Herdic v. Bilger, 11 Wright 60; Updegraff v. Rowland, 2 P. F. Smith 317. Possession did not import a transfer for value: Bircleback v. Wilkins, 10 Harris 26.

      S. H. Reynolds (with whom was J. B. Livingston), for defendant in error.
    The holder of the note, unless warned, had a right to dispose of it: Bank of Northern Liberties v. Jones, 6 Wright 536.
   The opinion of the court was delivered, July 7th 1870, by

Read, J.

Emanuel Keener and Joseph S. Keener, administrators with the will annexed of their father, George Keener, sold the only real estate testator had, consisting of a house and lot in Manheim, pursuant to directions in his will, to Mrs. C. B. Cross, for the sum of $520, to pay which she gave her note under seal, dated June 17th 1867, payable on the 1st day of April next (1868) to the said Emanuel and Joseph S. or to one of them, their or either of their order.

Joseph S. Keener was indebted to Uriah Bitzer, upon a note for $925, falling due in December 1867, and being insolvent, endorsed the sealed note given by Mrs. Cross to Mr. Bitzer, in part payment of his note for $925 then due. Mrs. Cross, on the 2d April 1868, paid the amount of her note to Emanuel Keener, the other administrator of the testator, and Uriah Bitzer commenced this suit to recover the amount from her.

The money owing by Mrs. Cross and represented by her sealed note, belonged to the estate of George Keener, and when Joseph S. Keener transferred the note by endorsement to Uriah Bitzer, to pay his private debt, said Bitzer took it subject to the trust for the estate of the decedent, and derived no beneficial interest in the note or its proceeds, and it follows that the payment made by Mrs. Cross was correct, and this suit cannot be sustained.

The court were therefore in error in answering the 2d and 3d points of the defendant.

Judgment reversed, and venire facias de novo awarded.


author: Shabswood, J.

text:
    Wertz’s Appeal.
    1. The owner of land charged with a widow’s thirds, mortgaged it; afterwards a judgment was recovered against him, under which the land was sold, there being then arrears of interest due the widow. Held, that the purchaser took subject to the arrears of interest and the mortgage.
    2. When a mortgage is prior to all other liens except a fixed charge on the land not itself divested by the sale, the lien of the mortgage is not divested by a sale under a subsequent lien, although there may be arrears due on the prior charge, whether accrued before or after the date of the mortgage.
    3. Such arrears being part of the fixed charge are not to be paid from the proceeds of sale.
    4. The mortgage being thus a fixed lien the sale is subject to all prior encumbrances.
    5. Interest accrues de die in diem, and is always apportionable.
    6. Devine’s Appeal, 6 Casey 348, Miners’ Bank v. Heilner, 11 Wright 452, distinguished.
    May 3d 1870.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Appeal from the decree of the Court of Common Pleas of Lancaster county: No. 87, to May Term 1870.
    In the distribution of the proceeds of the sheriff’s sale of the real estate of Hiram L. Thompson.
    Tilghman Thompson died intestate, January 14th 1864, seised of real estate, which was sold, October 29th 1864, to Hiram L. Thompson, under an order of the Orphans’ Court for the payment of debts, for $2300. This sum was more than sufficient to pay the debts, and $369.85, one-third of the balance, was secured on the land for the life of the widow, the interest to be paid to her annually. On the 1st of April 1868, Thompson executed a mortgage on the land for $1000 to Greorge Withers. On the 1st of May 1868, John D. Senseman recovered a judgment against Thompson for $500. Under this judgment the land was sold, June 12th 1869, to Benjamin Wertz, for $610, there being due at that time to the widow four years’ interest, amounting to $88.76. After deducting costs, $539.76 were brought into court. The matter was referred to N. E. Slaymaker, Esq., as auditor for distribution. He reported that neither the arrears on the widow’s charge nor the mortgage were to be paid out of the proceeds of sale, and awarded the whole to Senseman, the judgment-creditor.

      The Court of Common Pleas confirmed the report, and awarded the fund to Senseman. The result thus being that Wertz took the land subject to the arrears of interest to the widow and the mortgage of Withers.
    Wertz appealed to the Supreme Court, and assigned the decree of the court below for error. ' ¡

      S. P. Eby and N. Ellmaker, for appellant.
    Judicial sales discharge all liens unless under exceptions created by statute or those growing out of the peculiar character of the encumbrance; these are only from necessity: Girard Life Ins. Co. v. Farmers’ & Mechanics’ Bank, 7 P. F. Smith 3941 So of all liens that can be reduced to a certainty: Mohler’s Appeal, 5 Barr 420. The interest on a widow’s dcffiver is payable from the proceeds of sale: Lauman’s Appeal, 8 Barr 478; Kline v. Bowman, 7 Harris 24; Shertzer’s Executors v. Herr, Id. 34; Reed v. Reed, 1 W. & S. 235.

      G. Brubaker, A. C. Carpenter and A. H. Hood, for appellees.
    —Dower can be sold under a judgment: Thomas v. Simpson, 3 Barr 60. Dower is an estate: Zeigler’s Appeal, 11 Casey 173; Schall’s Appeal, 4 Wright 170; Devine’s Appeal, 6 Casey 348; Helfrich v. Weaver, 11 P. F. Smith 385.
   The opinion of the court was delivered, May 12th 1870, by .

Shabswood, J.

That the charge in favor of the widow of Tilghman Thompson was a fixed lien, not divested by the sheriff’s sale on a junior encumbrance, is to be considered as now settled beyond any question. Indeed, it was not a matter of dispute either in the court below or here. It has been well stated as a general rule that a judicial sale will not discharge an encumbrance, whether created by the law or by the parties, when the charge stands in the title, and can be discharged only by the court undertaking to administer the fund by investing it in order to fulfil the purpose of it: Dewalt’s Appeal, 8 Harris 236; Hiester v. Green, 12 Wright 96; Strauss’s Appeal, 13 Wright 353. These cases did but generalize and apply the previous determination in Fisher v. Kean, 1 Watts 259; Bear v. Whisler, 7 Watts 144; Reed v. Reed, 1 W. & S. 239; Bauman’s Appeal, 8 Barr 473. See Schall’s Appeal, 4 Wright 170. It has, however, undoubtedly been held that though the charge itself may be a fixed lien, incapable of divestiture, because incapable of computation, the rule is different as to any arrears either of rent, annuity or interest which may be due at the time of the sheriff’s sale; because such arrears are ascertainable with certainty in amount, and therefore payable out of the fund: Reed v. Reed, 1 W. & S. 235; Mohler’s Appeal, 5 Barr 418; Kline v. Bowman, 7 Harris 24; Shertzer’s Executors v. Herr, Id. 34; Lauman’s Appeal, 8 Barr 473. It is to be remarked, however, that in no one of these cases was there any mortgage immediately following the fixed charge or lien, so that no question arose as to the effect of the Act of April 6th 1830, Pamph. L. 293. The intention of that act was to protect mortgages from divestiture, whenever there were no prior liens which were themselves liable to be divested by a judicial sale, or, as it was expressed in Helfrich v. Weaver, 11 P. F. Smith 385, “ Liens the existence of which prior to a mortgage will cause it to be divested by a sheriff’s sale, must be such as are themselves divested by the sale and thrown upon the fund.” It is contended then, that as according to the authorities just cited, the arrears due Mrs. Thompson were payable out of the fund, they constituted a prior lien, which deprived the mortgage immediately following of the protection of the provision of the Act of 1830.

It is manifest that if these arrears accrued due subsequently to the date of the mortgage, they ought not to have that effect. Devine’s Appeal, 6 Casey 348, and Miners’ Bank v. Heilner, 11 Wright 452, are authorities in point as to this. If the law were not so, no mortgage would be safe; the Act of 1830 would be a snare. It would depend upon the good will or the ability of the debtor in paying up punctually his interest, whether the mortgage would remain or be divested by a sale. "Very great uncertainty would thus be thrown around the vendee’s title, a result to be most carefully guarded against. The same difficulty would exist if a distinction were to be drawn between arrears due at the ddte of the mortgage and those accruing subsequently. It may be said that it was the folly of the mortgagee to accept the security unless prior arrears have been discharged. Careful conveyancers will always see to this, not merely with reference to the question of first lien, but for other obvious reasons. We are not, however, to overlook the rights and interests of subsequent encumbrancers and of the owner of the lands. It is of great importance to them that the question whether a mortgage is to stand or fall by a sale should be disembarrassed as far as possible of all questions of fact in pais outside of the record. The amount of arrears unpaid at the time of the sale can rarely affect the price beyond a few hundred dollars, and may be ascertained without difficulty, and without much risk of loss, if there should even be a mistake. But the mortgage may be the whole or two-thirds.of the value of the land, and upon the question whether it remains a lien or is discharged, it depends whether anything or nothing is to be bid. This should be removed from the region of conjecture and uncertainty, by making it in all cases, as far as possible, a mere question of law upon the record and paper title.

It is true that in Devine’s Appeal, 6 Casey 348, there were no arrears due when the mortgages were executed. The fact is mentioned in the opinion, but it evidently was not the ground of the judgment. It was held in that case that on a sheriff’s sale subject to a mortgage and also to a prior ground-rent, the purchaser takes subject to the arrears of ground-rent due at the time of the sale. “While it is admitted,” said Mr. Justice Strong, “that the ground-rent lien itself is not discharged, it is contended that the lien of the arrears is gone, and consequently that that of the subsequent mortgage is gone. The priority'of the lien for arrears is determinable by the date of the ground-rent deed, without regard to them when they accrued. It is to that deed alone that the subsequent encumbrancer or purchaser can look. It is unnecessary to refer to authorities for a doctrine so familiar. If a judgment be recovered for arrears, the lien on the land is still from the date of the deed. Unpaid arrears have no new lien created by matter in pais by the default of the tenant. They are the shadow of which the original ground-rent reservation is the substance, as much so as interest is of the principal.” This course of reasoning applies with equal force to arrears due prior as well as subsequent to the date of the mortgage. The lien of those arrears did not spring into existence - from time to time as they accrued due, otherwise there would be as many liens as there were days of payment. Interest indeed accrues de die in diem, and is always apportionable. They related to the date of the original charge, and attached themselves to it as a mere incident, forming part of the charge itself. They might have been sued for and recovered separately, but the judgment would not have deprived them of the benefit of the original lien, as was settled as long ago as Bantleon v. Smith, 2 Binn. 146, and never departed from since. In Miners’ Bank v. Heilner, 11 Wright 452, no distinction was drawn in the case nor in the opinions between rent due before and after the date of the mortgage. But our brother Agnew, in his concurring opinion, says: “The lease being the subject of the mortgage, is necessarily prior to the mortgage, and the rent must therefore always be a prior lien. * *' * The legislature therefore could not have intended that the rent which necessarily precedes the mortgage, should take away the security intended by this act to be given to leasehold mortgagees.”

We conclude, then, that where a mortgage is prior to all other liens except a fixed charge on the land not itself divested by the sale, its lien is preserved by the Act of 1830, although there may be arrears of the prior charge due and unpaid, whether they accrued due before the date of the mortgage or subsequently to it, and that such arrears, being a part of the fixed charge itself, are therefore not to be paid from the fund in court. The mortgage itself being thus ascertained to be a fixed lien, the sheriff’s sale is necessarily subject also to all prior encumbrances: Tbe Northern Liberties v. Swain, 1 Harris 113.

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


author: Per Curiam.

text:
    Byrne versus Grossman.
    1. The court below discharged a rule to strike off the entry of a verdict, on the ground that the court had refused to allow the jury to be polled. Depositions were taken in the court below, but the record did not show that any demand for a poll had been made. Held, that it was not reviewable on error.
    2. It seems, that in civil cases allowing a jury to be polled is discretionary with the court trying the case.
    3. A jury found for the plaintiff “ $45, and to deliver said note to the defendant,” each party to pay “his witness-costs” and “half the county costs.” The court directed the verdict to be entered for the plaintiff for “ $45 and six cents costs.” Held, not to be error.
    4. The court had a right to mould the verdict according to law.
    May 3d 1870.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Lancaster county: No. 2, to May Term 1870.
    George Grossman brought an action against Bernard Byrne before a justice of the peace, who having given judgment in the case, it was, on the 17th of April 1868, removed by appeal into the Court of Common Pleas. On the trial there, February 23d 1869, the jury returned the following verdict:—
    “ The jury in the case of Grossman v. Byrne have decided the defendant pay the plaintiff the sum of $45, and deliver said note to the defendant. Plaintiff pays his own witness costs and the half of the county costs. Defendant also pays his witness costs and the half of the county costs.”
    The court directed the verdict to be entered that the jury “ find in favor of the plaintiff, and assess the damages at the sum of $45 with six cents costs.” The defendant obtained a rule to show causo why the verdict should not be stricken off; because it was not the verdict found by the jury; because, on the application of the defendant, the court refused to send the jury back and refused to require the jury to be polled ; the reasons alleged that the application was made before recording the verdict.
    Depositions were taken to prove the allegations in the reasons.
    The court (Hayes, J., delivering the opinion) discharged the rule. This was assigned for error by the defendant on the removal of the case to the Supreme Court.

      A. J. Steinman (with whom was F. S. Pyfer), for plaintiff in error.

      S. H. Reynolds and G. F. Breneman, for defendant in errror, were stopped.
   The opinion of the court was delivered, May 12th 1870.

Per Curiam.

There is nothing on the face of this record to show any demand made hy the plaintiffs in error for a poll of the jury which is the subject of the principal assignment of error, and a refusal to allow it by the court. It is therefore a matter not reviewable here. No doubt such an application being parcel of the trial, by custom, might if refused and excepted to, have been brought up for examination here on a bill of exceptions, and then the codrt^could have determined whether a special verdict of each juror was the right of either party, or whether it was a matter solely within the discretion of the court to allow or not. For my own part, I incline to the latter opinion in civil cases. But the consideration of this point is not before us for the reasons already stated, and we give no opinion about it. There is no other assignment of error which needs notice. The court had an undoubted right to mould the verdict according to the requirements of the law, and therefore their order setting aside that part of it relating to costs was not an error. There being no error in the record, The judgment is affirmed.


text:
    Gyger’s Estate. Eshleman’s Appeal.
    1. In construing a statute the plain common-sense interpretation of the words should be adhered to, rather than to apply refined technical rules of grammar.
    2. The 22d section of Act of March 15th 1832 (Administration), applies not only to the case of a joint administration with a widow, but also where there i^ no widow or she renounces.
    3. “ Always” in the act means “ in all cases.”
    4. Punctuation in a statute should not rule.'
    5. Coverture does not incapacitate for administration; administration should be granted to a feme covert, if she be next of kin.
    6. The assent of the husband is necessary to the grant of administration to his wife.
    7. The assent will be evidenced by his joining in the administration-bond.
    8. If he refuses the register may withhold letters from the wife, unless in case of his absence or incompetency; then a stranger may take his place in the bond.
    May 3d 1870.
    Before Thompson, O. J., Read, Agnew and Sharswood, JJ.
    Appeal from the decree of the Register’s Court of Lancaster county: No. 94, to May Term 1870. In the grant of administration of the estate of John Gyger, deceased.

      The case came before the Register’s Court (H. S. Shenck, Register, and Long, P. J., and Hayes, J., of the Court of Common Pleas) upon several caveats against the grant of administration of the estate of John Gyger, who died intestate April 10th 1870. He left to survive him, a daughter Elizabeth G. Eshleman, the wife of Benjamin Eshleman, and Abijah D. Gyger, the only child of a deceased son, John Gyger.
    The Register’s Court (Hayes, J., delivering the opinion, and Long, P. J., dissenting) granted joint administration to Mrs. Eshleman and Abijah D. Gyger.
    Mrs. Eshleman appealed to the Supreme Court, and assigned the decree of the Register’s Court for error.

      J. F. Hiester and T. F. Franklin, for appellants.
    The first preference is to those in nearest degree: Act of March 15th 1832, § 22, Pamph. L. 140, Purd. 277, pl. 28; Hood on Executors 58, 467; Stat. Henry VIII., chap. 5; Roberts’s Dig. 250; McLellan’s Appeal, 4 Harris 115; Williams’s Appeal, 7 Barr 259; Stoever v. Ludwig, 4 S. & R. 201. The appointment of the administrator is not by the selection of the register: Toller on Executors 87, 89; Hood on Executors 65; 1 Williams on Executors 366, 371; Lee v. Sedgwick, 1 Root 52; Warwick v. Greville, 1 Phillimore 128. A sole administration is preferred to a joint: 1 Williams on Executors 363, 374, 375; Hood 64; Toller 89. Coverture does not incapacitate for administration: Williams 390; Hood 67.

      S. F. Reynolds and J. Landis (with whom was S. H. Price), for the appellees,
    cited 1 Williams on Executors 365-373, 377— 381; Hood on Executors 59; Ellmaker’s Appeal, 4 Watts 38.
   The opinion of the court was delivered, May 12th 1870, by

Sharswood, J.

It is better always to adhere to a plain common-sense interpretation of the words of a statute, than to apply to them refined and technical rules of grammatical construction. An ordinary reader of the twenty-second section of the Act of March 15th 1832, Pamph. L. 140, would not fail to conclude that the preference therein directed to be always given to those of the next of kin entitled to the residue of the personal estate or to a share or shares therein after payment of debts, “ who are in the nearest degree of consanguinity with the decedent,” applies not only to the case of a joint administration with the widow, but also to cases where there is no widow or she renounces. There is no punctuation in a statute, which ought to rule: and the act in question, if properly pointed, would leave no doubt on the mind. Always was a word used to express something; and it was entirely superfluous if the clause in which it is found were intended to be confined to the immediate antecedent member of the sentence. It is synonymous with in all eases. The preference of males to females must come under the same construction, and apply only to the case of a joint administration with the widow, if the argument of the appellee he adopted. The reason of both preferences applies equally in either event. Where the class may be very numerous — children, grandchildren and even great-grandchildren claiming per stirpes, not to speak of brothers and sisters and their descendants, it was eminently proper to put some limit upon the discretion of the register. That this is the construction which has heretofore been given to the act is manifest from McClellan’s Appeal, 4 Harris 110, and Single’s Appeal, 9 P. F. Smith 55. In the former case it was held that the discretion reposed in the register as to granting letters of administration is limited to a selection from those asking the administration: from each class entitled to administer in its order. Mr. Justice Rogers said: “ Under the construction given to that act (of 1832), the ordinary or register in this state grants administration of the effects of the husband to the widow or next of kin, or he may grant to either or both at his discretion. If the widow renounces administration, it shall be granted to the children or other next of kin in preference to strangei’S or even to creditors. The discretion given to the register is limited to a selection from those asking in each class in their order.” In Single’s Appeal, there being no widow, it was decided that the register was bound to prefer a brother of the half blood to sisters of the whole blood, evidently applying, the direction of a preference of males to females, not to the clause immediately antecedent providing for a joint administration, but to the whole section.

Coverture forms no incapacity for the office of administratrix. Therefore if a feme covert be next of kin to the intestate, administration should be granted to her: 1 Williams on Ex. 390; Hood on Ex. 67. No doubt the assent of her husband to the grant to her is necessary, and that will be evidenced by his joining with her in the administration-bonds with two sureties. If he refuses or neglects, the register would be justified in withholding the letters, unless in case of his^absence or incompetency, when it seems a stranger may take his place in the bond. This is the construction which has been put upon the English statute 21 Hen. VIII. c. 5, s. 3 (Roberts’ Dig. 250), which requires the ordinary to take surety of him or them to whom shall be made commission for the administration: Toller on Ex. 91; Hood on Ex. 67. And see Ellmaker’s Estate, 4 Watts 37.

Decree reversed, and now it is ordered and decreed that the register of Lancaster county do grant letters of administration on the estate of John Gyger, late of the said county, deceased, to Elizabeth G. Eshleman alone.


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    Sandoe’s Appeal. Bard’s Estate.
    1. Where a widow elects not to take under a will, her substituted devises and bequests are a trust in her, for the benefit of the disappointed claimants to the amount of their'interest therein.
    2. A court of equity will sequester the benefit intended for the wife to secure compensation to those whom her election disappoints.
    3. A testator directed his executors, should his son J. desire it, to buy him a farm of equal value to his mansion farm, and “ if there should not be sufficient funds on hand,” &e., to sell a house in H. He gave his son W. his mansion farm, subject to certain charges for testator’s wife. He directed his executors to rent his tavern for his wife and after her death he gave it' to his sons equally in fee. He devised to them also other real estate in fee and gave to his wife pecuniary legacies and other personal property. She elected to take under the intestate laws, and there was not enough personal estate to buy the farm for J. Held, that whatever deficiency there was after appropriating the funds mentioned, including the sequestered gifts to the widow, must be charged on W.’s farm, equality between J. and W. to be preserved.
    May 3d 1870.
    Before Thompson, C. J., Read, Agnew and Shakswood, JJ.
    Appeal from the decree of the Orphans’ Court of Lancaster county: No. 76, to May Term 1870. In Michael Bard’s Estate.
    The decedent died on the 11th of May 1865, leaving a widow, three daughters and two sons, Jefferson S. Bard, aged then about twenty years, and William M. Bard, aged about thirteen years. John R. Sandoe was appointed guardian of William.
    By the 3d clause of his will the testator directed that if his son Jefferson married or wished a farm for himself before William came of age, the executors should buy a farm for him of equal value with testator’s mansion place, and pay for the same out of his estate, and if there should not be sufficient funds, his executor should sell his brick house and lot in New Holland, bought of S. K. Groff’s assignee, &c.
    By the 4th clause he gave his mansion place to William, “ to pass into his hands” at twenty-one years of age, subject to certain charges for his wife. In case William died before twenty-one, without leaving issue, he devised the mansion farm to Jefferson - in fee.
    By other clauses he gave pecuniary legacies to his three daughters. He gave certain wood-lots to Jefferson and William equally.
    By the 15th clause he directed his executors to rent his tavern and store property in New Holland during his wife’s life. In case his wife died before William came of age, it was to be rented till William came of age, and after William came of age and the widow’s death, this property was to go to Jefferson and William in fee.
    By the 10th clause he authorized his executors to sell his brick house and lot in New Holland. He divided the residue of his estate equally amongst all his children.
    The widow elected not to take under the will, but took under the intestate laws. The result was that, the assets of the estate were not sufficient to meet the provisions of the will.
    The distribution of the estate was referred to auditors, who reported that all the legacies and devises should abate proportion-ably. In order to determine the dividends they fixed a valuation on the real estate. They reported that all the devises and bequests, exclusive 'of the widow’s, amounted to $49,335.46; that the assets, including the land subject to her dower, amounted to $36,647.24, and that the dividend would be 74J per cent.; that the shares of Jefferson and William were equal under the will, that Jefferson had elected to take his portion in money, as he had the right to do, and that William, in personal property deli vered to him, and the land devised to him, had received $4123.91 more than his dividend. They directed, therefore,, that he should pay that sum to the executors to~enable them to make the distribution. This .report was confirmed by the Orphans’ Court. From this decree of confirmation the daughters appealed to the Supreme Court. That court reversed so much of the decree as related to the legacies to the daughters, and ordered the executors to pay them without abatement. (See -8 P. F. Smith 393, where large extracts from the will are to be found.) Sandoe, the guardian of William, then took this appeal from the remainder of the decree of the Orphans’ Court.
    He assigned for error, that the court erred—
    1. In confirming the report of the auditors, and in charging the estate devised to William M. Bard with the sum of $4123.91.
    2. In not awarding to William M. Bard all the real and personal estate given to him by the will of Michael Bard, deceased, in the character of specific devises and legacies free from all charges and deductions, except such as the law imposed upon each in favor of the superior rights of the widow.
    3. In not deciding that in the distribution of this estate the general legacies must abate in full before the specific legacies, and specific devises can be called upon for abatement.

      W. W. Brown, for appellant.

      A. M. Frantz, for appellee.
   The opinion of the court was delivered, October 20th 1870, by

Read, J.

The will .of Michael Bard was before this court, in 8 P. F. Smith 393, when the three legacies to three married daughters of the testator were directed to be first paid, in preference to any appropriation of the personal estate, to buy a farm for Jefferson. So far as this went, the report of the auditors was set aside. The present appeal of the guardian of the minor William, necessarily brings up the consideration of the remainder of the report of the auditors, with which we shall now proceed to deal.

The widow, by her election not to take under the will of her husband, took one-third of the personal estate of the decedent and her dower at common law in the real estate, and the three legacies to the three married daughters were under our decision paid in full out of the personal estate. This leaves subject to the will the remaining personal estate and the real estate subject to the widow’s dower. The accounts not being before us, we are unable to say what is the result produced by this state of things. One thing is however clear, that the auditors adopted an entirely erroneous mode of settlement, in making all the devises and bequests abate pro rata, and of course their whole plan of distribution falls to the ground.

The rule in equity treats the substituted devises and bequests to the wife, as a trust in her for the benefit of the disappointed claimants, to the amount of their interest therein ; and the court will assume jurisdiction to sequester the benefit intended for the refusing wife, in order to secure compensation to those whom her election disappoints.

This reaches all bequests and provisions for the widow in the second, fourth and sixth items of the will. The executors, if Jefferson wishes it, are directed in the third item to purchase for him a farm, but it is evident that the remaining personalty will not be sufficient for this purpose, and that the executors will be obliged to sell the brick house and lot in New Holland mentioned in the third item.

This construction will leave William whatever he is entitled to under the terms of the will, and appropriates to the use of Jefferson the remainder of the personalty, the proceeds of the brick house and lot, and the sequestered benefits intended for the widow.

The legacy to Jefferson is in these words :■ “ Third, I direct that if my sop Jefferson gets married or wishes to farm for himself, before William is of age, my executors shall buy a farm for him some place in the neighborhood, which in the whole shall be about equal in value to my mansion place, and get the title for same made from the vendor to my said son Jefferson, his heirs and assigns, and pay the same out of my estate.”

This language leaves no doubt that the testator looked upon Jefferson with the same favor that he did William, and intended to give them equal shares of his property. The further provision in the fourth item, giving the said mansion farm to his son Jefferson in case of the death of William “before he is twenty-one years old and without leaving issue” confirms this view to its fullest extent.

This legacy is to be paid out of the'estate, and whatever deficiency there may be after the application of all the funds enumerated in the foregoing part of the opinion, must be charged upon and paid out of the mansion farm devised to William, taking care however to preserve the equality of value between the two brothers. In this shape and in this view the^Qrphans’ Court is the proper tribunal, and possessing equity powers can dispose of all the questions raised in this case.

The effect of this is to reverse so much of the decree of the Orphans’ Court as was left unreversed by the decree of this court, and to enter a decree in conformity with this opinion:

And now, October 20th 1870, it is ordered, adjudged and decreed, that so much of the decree of the Orphans’ Court as remained unreversed by the former decrees of this court be reversed and it is hereby ordered that all the benefits intended for the refusing wife be sequestered for the compensation of Jefferson. That the brick house and lot in New Holland be sold, and after applying the same with the personalty to the purchase of a farm for Jefferson agreeably to the directions of the will, and whatever may be the deficiency for this purpose is to be raised out of William’s mansion farm, taking care however to preserve the equality of value between the two brothers. And it is further ordered that the Orphans’ Court carry this decree into full effect, and that the record be remitted for that purpose. The costs of this appeal to be paid out of the estate.


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    Brubaker’s Appeal. Bard’s Estate.
    1. A testator devised bis mansion farm to W., he directed his executors to purchase a farm of equal value with the mansion for J., and in case “ the funds in hand” were deficient, provision was to be made by the sale of other real estate named. He devised a tavern to W. and J. jointly at the death of his widow. The funds appropriated were insufficient to buy J.’s farm, and the Supreme Court directed the deficiency should be made up by a charge on the mansion farm. The other real estate devised to J. and W. was sold under the Price Act. Held, that the Orphans’ Court properly appropriated "W.’s share in that for J.’s deficiency instead of charging the mansion farm.
    2. The rents of the tavern were to be received by the executors during the widow’s life, and were to fall into the residue which was to go to the five children “ after all the .foregoing bequests are carried out.” She refused to take under the will. Meld, that as by the terms of the will the rents could not accomplish the immediate purchase of J.’s farm; the trust in the executors after the sale had no purpose to serve and was at an end. Meld, also, that principal and interest being appliéable to the same object the principal might at once be so applied.

      May 3d 1871.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Orphans’ Court of Lancaster county: No. 55, to May Term 1871. In Michael Bard’s estate.
    After the record in this estate was remitted to the Orphans’ Court of Lancaster county, in pursuance of the decree in the preceding case (Sandoe’s Appeal), the executors of the will were at their own request discharged, and Roland H. Brubaker was appointed administrator d. b. n. c. t. a. He sold the brick house and lot in New Holland, subject to the widow’s dower for $2401; also, by order of the Orphans’ Court, under the Act of April 18th 1853 (Price Act), he sold the tavern and store property for $7984.80. He received also from divers sources personal estate, amounting to $1194.70. He filed his account, which included all the foregoing items, and showed in his hands a balance of $11,230.19.
    This was referred to J. W. Swift, Esq., for distribution, and he was directed “ to embrace in his report all the facts necessary to enable the court to carry out the decree of the Supreme Court, as rendered in Sandoe’s Appeal.”
    The auditor, after finding what sum was necessary to equalize Jefferson with William, reported:—
    “ At the same time the tavern and store property of the testator was sold by order of the Orphans’ Court, and the net proceeds of said sale form part of the balance of the estate now also in the hands of the accountant for distribution. This property was devised to Jefferson and William, as tenants in common in fee simple, as will be seen by the 10th section of the will. As William’s share of this property is more than is necessary for his estate to contribute to equalize Jefferson with him in the distribution, the auditor deems it but just to appropriate so much of the share of William in the tavern and store property as is necessary to produce an equality of distribution between the two sons.
    “ There appears to be no substantial reason why William’s mansion farm sho.uld be encumbered to raise money to equalize Jefferson’s portion with his own, when at the same time there is in the hands of the accountant money enough belonging to his estate to pay the contribution. The auditor, therefore, distributes to Jefferson so much of William’s share of the proceeds of the tavern and store property as William’s estate must contribute to Jefferson, to produce an equality of distribution between them. In order to ascertain what amount William’s estate must contribute to Jefferson to equalize the two sons, it is necessary in the first place to determine what amount of property has been devised to William. So far as the wood-lots devised to William and Jefferson are concerned they equalize themselves, so also of the reversion of dower in the tavern and store property, and the brick house which, after the death of the widow, are reserved, to be paid to the executors of the estate, and will then be a fund for distribution between the two sons in equal 'parts.” * * *
    The auditor reported a distribution in accordance with these principles, awarding Jefferson’s share to his creditors. Jefferson and William acquiesced in the report. Brubaker, the administrator, filed exceptions, which were overruled by the Orphans’ Court, and the report was confirmed.
    Brubaker appealed to the Supreme Court, and assigned for error that “ the court erred in confirming the report of the auditor, and in not awarding the fund arising from the sale of the tavern and store property in New Holland to the appellant to be held for the purposes and uses for which the real estate, from which it was derived, was.jheld under the will of Michael Bard, deceased.”

      E. S. Yundt, for appellant.

      W. R. Wilson and W. W. Browne, for appellee.
   The opinion of the court was delivered, May 5th 1871, by

Sharswood, J.

The learned court below put a very reasonable and proper construction upon the decree of this court in Sandoe’s Appeal, antea, p. 314. In directing the Orphans’ Court to raise out of William’s farm whatever sum might be necessary to produce an equality of distribution between the two sons after appropriating to Jefferson the proceeds of the brick house and lot and the balance of the personal property on hand, it certainly was not intended to preclude the application of any other fund coming to William under the will to that object.

The tavern and store property, devised by the tenth section of the will, having been sold and converted into money under the Act of April 18th 1858, Pamph. L. 503, it becomes necessary to inquire whether William has any present interest in these proceeds. The tenth section referred to directs that the executors shall rent that property during the lifetime of the widow, and then proceeds : “ And at the death of my wife, if it occurs after William is of age, and if it should be sooner, then when William is of age I give and devise' the said tavern and store-property with the appurtenances, unto my two sons Jefferson and William, their heirs and assigns, as tenants in common.” If, indeed, the rents and profits are given to other parties" before the period when this devise was to take effect in possession, and are not to be appropriated to what appears to be the plain object of the testator, to make his two sons William and Jefferson about equal, there would be reason in the contention of the appellant. These rents fall into tbe residue which is divided among all tbe children in equal shares, but only “ after all tbe foregoing bequests are carried out.” One of these was that a farm should be purchased for Jefferson about equal in value to the mansion place devised to William. These rents which are thus appropriated could not accomplish the purpose of an immediate purchase. It follows that the trust of the executors having no longer any legitimate purpose to serve, was at an end when the land was converted into money, and as the interest as well as the principal is applicable to the same purpose, the principal may at once be applied to that object.

Jefferson and the guardian of William acquiesce in the decree below. In disposing of the appeal in this manner it is by no means meant to admit that the appellant, the administrator de bonis non, has any interest which entitles him to prosecute this appeal.

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