author: Mr. Justice Gokdon

text:
    Donnelly et al. versus Graham et al.

    1. A summons was issued against four; three were summoned and the declaration was against them ; one of these did not appear nor plead; two pleaded, the verdict and judgment was against the three. Held, that the judgment was bad and could not be sustained as to any.
    2. The suit and declaration being against all jointly, the recovery could have been against all or none.
    3. To have obtained a judgment on a verdict against the two pleading, there should have been an interlocutory judgment against the third who did not appear.
    January 4th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of January Term 1873, No. 5.
    This was an action of assumpsit, brought June 3d 1871, by Walter Graham & Co., against W. E. Willard, James Donnelly, Patrick Rafferty and William Monaghan, trading as William Willard & Co. The sheriff returned “ ‘Nihil,’ as to William E. Willard, and summoned as to the other defendants.”
    The declaration, filed October 23d 1871, was, “James Donnelly, Patrick Rafferty and William Monaghan, who were sued with William P. Willard, trading,” &c., were attached to answer the plaintiffs, &c.; the declaration being in the common counts. Donnelly and Monaghan, two of the defendants, pleaded non-assumpserunt. Donnelly pleaded also that there was no partnership between himself and the other defendants. Rafferty did not appear or plead.
    A jury was called January 12th 1872, and sworn generally as to all the 'defendants declared .against; the verdict was for the plaintiffs against all the defendants for «§439.42.
    The defendants moved in arrest of judgment; the motion was denied.
    The defendants took a writ of error.
    They assigned for error that the 'court erred:
    1. In swearing the jury as against Rafferty, who had not appeared or pleaded.
    2. In denying the motion for arrest of judgment.
    3. In entering judgment against the defendants generally.

      T. Qreeribank and W- L. Hirst, for plaintiffs in error.
    Judgment could not be entered against Rafferty, who had not appeared nor pleaded: Bennet v. Reed, 10 Watts 397. Interlocutory judgment should have been entered against Rafferty, and a jury sworn against the other defendants: 2 Tr. & H. 631; Nelson v. Lloyd, 9 Watts 22. Striking off the name of Rafferty would not avail, the declaration being joint against the three: Swanzey v. Parker, 14 Wright 454; Boaz v. Heister, 6 S. & R. 20.

      JS. O. Shapley, for defendants in error.
    The irregularity not having been objected to at the trial, a court of error will not reverse on that account: Blackstock v. Leidy, 7 Harris 335; Imhoff v. Brown, 3 Phila. R. 45; Haas v. Evans, 5 W. & S. 252.
    January 11th 1875.
   Mr. Justice Gokdon

delivered the opinion of the court,

The summons in this case was issued against William F. Willard, James Donnelly, Patrick Rafferty and William Monaghan, as partners trading under the firm name of William Willard & Co. Service was not had upon Willard, and he is therefore not in the case. The other three were served. The plaintiffs’ narr. charged the defendants with a joint indebtedness. Monaghan and Donnelly appeared and pleaded, but Rafferty did neither. The plaintiffs, however, without first taking an interlocutory judgment against Rafferty for want of appearance, proceeded to trial, and obtained a verdict and judgment against the; three.

Now, so far as Rafferty is concerned, there can be no doubt but that this judgment is incurably bad. It does not present the case of a mere technical error, as in Blackstock v. Leidy, 7 Harris 335, where the defendant was in court and there was the want only of the interlocutory judgment. Here the proceedings are not only ex parte, but the judgment is procured in a manner authorized neither by statute nor common law.

But can the judgment be reversed as to Rafferty, and affirmed as to Donnelly and Monaghan ? We answer this question in the negative. The suit is joint; the narr. alleges a joint claim; hence, the plaintiffs must recover against all thus charged or none. On this ground it was ruled, in Nelson v. Lloyd, 9 Watts 22, that, where the summons was against three as partners, who were all served, a verdict and judgment against one, without an interlocutory judgment against the other two, was irregular and bad, and the judgment was accordingly reversed.

So in Boaz v. Heister, 6 S. & R. 20, it was held that, where, upon a joint action, judgment is rendered against two, which is erroneous as to one, it cannot be reversed as to one and affirmed as to the other.

It is apparent, therefore, that the judgment in this case is not only bad as to Rafferty, but being bad as to him it cannot be sustained as against Donnelly and Monaghan.

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


source: Caselaw Access Project

author: Chief Justice Agnew

license: Public Domain

text:
    Susanna Root’s Case.
    1. Compensation, for property taken under eminent domain, is not necessarily to be in money ; it may be in particular benefits received by the owner; benefits in which all others participate equally with the owner are not just compensation.
    2. 'The Act of March 26th 1867, enacted that in assessing damages for property taken,for Eairmount Park, the title to which being extinguished and vested in the city, the viewers should estimate the advantage to the property-adjoining or in the vicinity 11 to be enforced,” &c. The Act of June 15th 1871, enacted that in appropriating land for public use, other than roads, streets and highways, the damages to such land should not be charged, &e., “ to the other property adjoining or in the vicinity, nor the owners thereof.” Held, that damages for land taken could not be charged to other land of the same owner of which that taken was a part.
    3. The fact that the land taken and that against which the damages were charged were one tract of the same owner, did not vary it from the case of land belonging to a different owner from that taken.
    January 7th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Certiorari to the Court of Quarter Sessions of Philadelphia: No. 43, to January Term 1873. In the matter of the assessment of damages to Susanna Root for land taken for the Eairmount Park, Philadelphia.
    On the 8th of March 1869, the Eairmount Park Commissioners presented their petition to the Court of Quarter Sessions, of Philadelphia, for the appointment of viewers to assess to Susanna Root damages, by reason of their having taken land belonging to her for the park, under the Act of Mai’ch 26th 1867, Pamph. L. 547.
    By that act an area of ground in the city of Philadelphia, particularly described in the act, was vested in the city,, to be laid out and maintained for ever as an open public park, and the act authorized the appointment of commissioners of the park. On petition of the commissioners the Court of Quarter Sessions was required to appoint viewers to ascertain the value of land taken for the park, when the commissioners could not agree with the owners and in assessing the damages ; the viewers were to “ estimate the advantage to property adjoining or in the vicinity, the award to be enforced as in opening of roads in Philadelphia.
    The court appointed viewers accordingly.
    The viewers reported that Mrs. Root’s land taken for the park contained 2.9-10th acres ; they further reported:—
    “ It appeared before them that the premises above described are part of a larger tract of land, containing 12.8-10th of an acre; of Avhich larger tract the folloAving described remain outside the park, and adjoining the same, to wit:—
    “ All that certain tract of land, with the buildings and improvements thereon erected, situate, &c., containing 9 acres more or less. After full advisement and consideration they find the value of the ground taken for Fairmount Park, as first herein described, to be $7000. They do also determine that the tract of land last herein described is benefited by the opening of said park to the amount of $18,000. They do therefore assess the premises last above described, for the benefit and advantage of opening said park, to the said amount of $13,000. And they do determine that the said Susanna Root shall pay the difference between the said sums, to wit, $6000 of the damages awarded by the undersigned, jurors, in their partial reports heretofore submitted to and confirmed by this court,” &c. ’
    On the 15th of June 1871, an Act of Assembly was passed, (Pamph. L. 392) enacting, “ that in all cases of the appropriation of land for public use other than for roads, streets or highways, it shall not be lawful to assess, apportion or charge the Avhole or any portion of the damage done to or value of the land so appropriated, to, among or against the other property adjoining or in the vicinity of the land so appropriated nor the owners thereof; and all acts or parts of acts, inconsistent herewith, are hereby repealed.”
    Exceptions were filed by Mrs. Root to this report, as follows:—
    Susanna Root, claiming the benefit of the said report, so far as it assesses at $7000 the damages to her for the taking of her parcel of land, containing two acres and nine-tenths of an acre, excepts to and prays the court to reject so much of the said report as claims to charge the sum of $13,000 on the tract or parcel of land lying outside of the boundaries of the said Fairmount Park, containing about nine acres, more or less, for the folloAving reasons:—
    1. Because the power of the jury to make the said charge of $13,000, on the last-mentioned tract, was taken away by the Act of Assembly of this Commonwealth, approved 15th June 1871.
    2. Because the jury fulfilled all the duty imposed on them when they assessed the damages for the first-described lot of land, included within the park boundaries; and the residue of their finding, in respect to the lot lying outside the park, is surplusage and beyond their authority, and should be rejected.
    December 2d 1871, exceptions sustained and the report referred back to the jury.
    The viewers again reported : * * *
    “ That after further and full advisement and consideration, taking into consideration as well the value of the piece of ground taken, as the value and advantage of the park to the piece of ground left outside and adjoining the park, they find that the said Susanna Root has sustained no damage.”
    Mrs. Root filed exceptions to this report, amongst others the following:—
    3. Because the jury have assumed to set off the value of the land taken, which in their original report .they fixed at $7000, from the supposed advantage accruing by reason of the park, to another parcel of land which no longer bounds on the park, but is separated therefrom by Thirty-third street, 100 feet in width, and which other parcel of land does not belong to the said Susanna Root, but to George Root, who was proved before the jury to have become owner thereof before the original report was filed.
    4. Because the supplemental report of the jury is an attempt to absorb or set-off the $7000 which their original report finds to be the value of the land taken, by an assessment of an equivalent amount on the land lying on the east side of Thirty-third street, formerly of the said Susanna Root, and now of the said George Root, and such assessment is forbidden by the Act of 13th January 1871.
    7. Because the failure to award the claimant any damages for her land taken, which was proved to be worth $3000 per acre and upwards, is a violation of the spirit and intent of the Act of June 13th 1871, which was designed to put all owners of land upon the same footing, and if the power to assess on land lying outside be taken away by the legislature, it should not be done directly, as attempted in the first report, or indirectly, as attempted in this supplemental report.
    July 6th 1872. The exceptions were dismissed and the report confirmed.
    Mrs. Root removed the record to the Supreme Court and assigned for error the dismissing the exceptions and confirming the report of the viewers.

      5. 8. Hagert and J. B. Townsend, for Root,
    examined the Acts of Assembly above mentioned and cited: Dwarris on Statutes 381; Hammett v. Philadelphia, 15 P. F. Smith 146; Washington Avenue, 19 Id. 352.

      O. Yerkes (with whom was O. H. Jones), contó.
    The damages are the actual injury which the owner has sustained : Schuylkill Nav. Co. v. Thoburn, 7 S. & R. 411; Schuylkill Nav. Co. v. Farr, 4 W. & S. 375 ; Furman Street, 17 Wend. 649; Harvey v. Lackawanna & B. Railroad, 11 Wright 435; Railroad Co. v. Heister, 8 Barr 450 ; Miflin v. Railroad Co., 4 Harris 192 ; McMasters v. Commonwealth, 3 Watts 296.
    January 11th 1875.
   Chief Justice Agnew

delivered the opinion of the court,

In Washington Avenue, 19 P. F. Smith 362-3, it is shown that the right of private property is clearly protected by the Bill of Rights. While the power of just taxation is unbounded, yet that of eminent domain is expressly limited by the right of the owner of the property to a just compensation. It follows that the right of compensation is not to be frittered away by a mere inference or by unfriendly interpretation. Compensation is not necessarily to be in money, and maybe awarded in particular benefits received by the owner. But it is equally well settled that those general benefits, in which all others participate equally with the owner, are not jtist compensation. The question in this case is the proper interpretation of -the Act of June 15th 1871, entitled “ An act relating to the assessment of damages for the appropriation of land for public use.” The interpretation must be made in view of the principles just stated as to the constitutional right of compensation.

By the first section of the Park Act of 26th March 1867, the title and ownership of the lands taken for the park are expressly vested in the city of Philadelphia, and compensation was provided for in the 3d section. Under this law and its supplements compensation was made in benefits; a rule properly applied to cases where the owner, as in the case of highways, retained his property subject to the public easement. But when, as here, the title of the owner was extinguished and transferred to the public, justice seemed to require a different rule, and this the Act of 1871 supplied. Hence, the act declared that “ it shall not be lawful to assess, apportion, or charge the whole or any portion of the damage done to, or the value of the land so appropriated, to among or against the other property adjoining, or in the vicinity of the land so appropriated, nor the owners thereof; and all acts, or parts of acts, inconsistent herewith are hereby repealed.”

It is to be noticed first, that this law is general and applies to all cases except appropriations of land for roads, streets and highways. It makes no exceptions of citizens of any class or in any circumstances — all alike are entitled to its benefits. Then its language is the whole or on any portion of the damages done to, or value of the land so appropriated. It therefore applies as well to damages as to value. Then neither damage nor value is to be assessed^ apportioned or charged to, among, or against the other property adjoining, or in the vicinity of the appropriated land. In no form whatever, therefore, shall the adjoining land contribute to pay the damages or the value of the land taken. It is not to be by assessment, apportionment or charge, and it is not to be to, among or against it. Neither adjoining property nor land in the vicinity shall contribute. What more ? “ Nor the owners thereof.” Then neither the land adjoining nor the owners of such land shall bear the burthen of the damage in the value of the appropriated land. There is no exception to this. The act does not say, except where the owner of the adjoining land is also the owner of the land taken. To crown all, there shall be no inferential exception, for it is said, “ and all acts, or parts of acts, inconsistent herewith are hereby repealed.” Hence, all those laws which before had allowed damage or value to be extinguished by benefits are gone as to these adjoining lands; for these charge the owner with the benefits his retained land has received, and this is flatly inconsistent with the provision that the adjoining lands and their owners shall not be assessed, apportioned or charged with contribution. There can bo no inference, therefore, from these repealed laws, that lands outside, or the owners of outside lands, shall pay the damages done to, or the value of the appropriated inside land.

Then how does the case stand ? Mrs. Root’s land inside is wholly taken — it is gone entirely from her. She has, and can have, no benefits arising from it. The benefits, therefore, necessarily are such as belong to the outside land. It is a portion of the value of the outside land which is made to satisfy and pay the entire value of the land taken. As the owner of the outside land therefore she is compelled to submit to an assessment against her outside land to extinguish the compensation for her inside land. What is this but to set-off the outside value against the inside value. This being the undeniable fact, it is in the very teeth of the statute, which says it shall not be lawful to assess, apportion or charge the whole or any portion of the damage done to, or the value of the land so appropriated to, among or against the other property adjoining, or in the vicinity of the land appropriated, nor the owners thereof, and all acts and parts of acts inconsistent herewith are hereby repealed.

What has been said shows that the answer made that she is the owner of the land appropriated, and of the adjoining land also, and that value of the latter is increased by the park improvement, is without force, for she is not the subject of an exception in the law, and no exception can be made by judicial inference. It is also contrary to justice as well as the letter and intent of the act. As an owner of adjoining lands she partakes of no special benefits, that all the owners of adjoining land or lands in the vicinity do not share in. They derive precisely the same benefits in the rise of property in value that she obtains. If her outside land belonged to another its rise in value would be precisely the same, and yet would not be liable to contribute to pay her compensation for the land appropriated. Is it not evident that getting nothing from the inside land, her entire compensation has been taken out of her adjoining land? and that the rise in value of her adjoining land is as much protected by the act as the rise in value of any other person’s adjoining landj? This is the very thing forbidden by the act. How then does the accident that the two portions were formerly one, change her position, and make her -liable as an owner, when other owners are exempt, and the act makes no exception, and allows of none by a repeal of the laws which would have allowed it ? Nothing short of a judicial law can accomplish such a result, and this merely because as outside owner she is benefited precisely as all other outside owners are by the rise of adjoining lands in value. It is simply discrimination in face of the letter and purpose of the act, which is founded on the just principle that when the property is taken wholly, it is not to be paid for out of those common benefits which all alike enjoy in similar circumstances.

We think the court below was misled by the state of the law previous to the passage of the Act of 1871, and had not noticed the effect of the repealing clause in the last line, which prevents a judicial exception founded upon them.

The decree of the Court of Quarter Sessions of the Peace, dismissing the exceptions and confirming the report, is reversed, and the report of the jury is set aside upon the third, fourth and seventh exceptions, and it is ordered, that a new view and appraisement be awarded; and the record is directed to be remitted to the new Court of Common Pleas, sitting as a Court of Quarter Sessions, there to be proceeded in and finally determined according to law.

Mr. Justice'Mercur dissented.


author: Mr. Justice Gordon

text:
    Stover’s Appeal. St. Joseph’s Hospital’s Appeal.
    1. A testator in Philadelphia gave to his nephew an annuity “ chargeable upon and yearly payable out of my estate during his life. And I do further order, that said sum shall be paid to him in person only and upon his personal application therefor and to no other person for him ; and in caso the said (nephew) shall not for five years apply for the payment of the said yearly sum after the same shall become due, then I order each such annual sum uncalled for to become part of my residuary estate/’ The nephew died in California within five years after the testator’s death, not having made personal application for the annuity. Held, that the payments which had accrued passed into the residue.
    2. The intention of a testator gathered from the whole will prevails over technical rules.
    3. The legacy was contingent upon the legatee’s applying personally for it.
    4. McClure’s Appeal, 22 P. IT. Smith 419, followed.
    January 7th 1875.
    Before Ag-new, C. J., Sharswood, Williams, Mercur, Gordon, Paxsok and Woodward, JJ.
    Appeal from the Orphans’ Court of Philadelphia : Of January Term 1873, No. 148.
    Mason Hutchins died in Philadelphia on the 9th of October 1866, having made a will by which he bequeathed as follows:—
    “ Item. I give and bequeath unto my nephew, Mason Hutchins Darrach, an annuity of $1000, chargeable upon and yearly payable out of my estate for and during the term of his natural life; and I do further order and direct that the said sum shall be paid to him in person only, and upon his personal application therefor, and to no other person for him; and in case the said Mason Hutchins Darrach shall not for the space of five years apply in person for the payment of the said yearly sum after the same shall become due, then I order and direct each and every such annual sum uncalled for to revert to and become part of my residuary estate.
    “Item. Subject to the above annuity, the yearly payment of which I do hereby expressly charge upon all my estate, I do give, devise and bequeath, all the rest, residue, and remainder of my estate, real, personal and mixed, of whatever nature or kind soever, and wheresoever the same may be situate, unto the St. Joseph’s Hospital, at Philadelphia, their successors and assigns for ever.
    “ Lastly, I nominate and appoint Lewis Stover, at'torney-at-law, to be executor of this my last will and testament.”
    Mason H. Darrach died in Oroville, California, testate, February 1st 1871, at which time the arrears of the annuity amounted to $3749.88. He did not make personal application at any time for all or any part of said arrears.
    Thomas B. Darrach, administrator c. t. a. of Mason II. Darrach, petitioned the Orphans’ Court, setting out as above stated; he also averred-that St. Joseph’s Hospital sold and conveyed the ground-rents to Mr. Stover, the executor, who covenanted to pay the annuity to M. H. Darrach.
    The prayer was that the court would decree that Stover, either as executor or purchaser of the ground-rents, should pay the petitioner the arrears of the annuity.
    The executor, by his answer, admitted the truth of the statement in the petition, but averred that he was advised that Mason H. Darrach, not having made personal application for the annuity, the petitioner was not entitled to the relief prayed for; the respondent submitted also that the Orphans’ Court had not jurisdiction in the premises.
    The court, Ludlow, J., decreed that the executor pay to the petitioner the sum of $3749.88, the arrears of annuity, with interest, &e.
    The executor and St. Joseph’s Hospital appealed, and assigned for error, that the court erred:
    1. In entertaining jurisdiction in the matter.
    3. In decreeing payment of the arrears of the annuity.

      P. MeOall, for Stover.
    If a legacy be even upon a condition subsequent and there is a gift over, the legacy will go to the subsequent legatee if the condition be not performed: 1 Jarman on Wills 807; Tanner v. Tibbatt, 2 Y. & C. 225. Even though the act to be performed becomes impossible by death or other causes over which the legatee has no control, the legacy is defeated: Swinbourne on Wills 4, sect. 6; Roundel v. Currer, 2 Brown C. C. 67; Tulke v. Houlditch, 1 Ves. & B. 248; Campbell v. McDonald, 10 Watts 179; Burgess v. Robinson, 3 Meriv. 7; Careless v. Careless, 1 Id. 384; Hawks v. Baldwin, 9 Sim. 355; Chambers v. Wilson, 2 Watts 495.

      W. L. Hirst, for St. Joseph’s Hospital,
    cited Gilliland v. Bredin, 13 P. F. Smith 397 ; Roberts’ Appeal, 9 Id. 72; Seibert’s Appeal, 1 Harris 503; Bayard v. Atkins, 10 Barr 15; McClure’s Appeal, 22 P. F. Smith 417.

      Gf. Junhin, for appellee,
    cited, as to the vesting of the legacy, Co. Litt. 144 6; Sidney v. Vaughan, 2 Brown’s P. C. 347. The condition having become impossible by the act of God, the gift was absolute: Aislabie v. Rice, 8 Taunt. 459; Graydon v. Hicks, 2 Atkins 16 : Culin’s Appeal, 8 Harris 243.
    February 8th 1875.
   Mr. Justice Gordon

delivered the opinion of the court,

The controversy in this case arises out of the following item in the will of Mason Hutchins, deceased, to wit:

“ Item, I give and bequeath unto my nephew, Mason Hutchins Darrach, an annuity of $1000, chargeable upon and yearly payable out of my estate, for and during the term of his natural life. And I do further order and direct, that the said sum shall be.paid to him in person only, and upon his personal application therefor, and to no other person for him; and in case the said Mason Hutchins Darrach shall not, for the space of five years, apply in person for the payment of the said yearly sum after the same shall become due, then I order and direct each and every such annual sum uncalled for, to revert to and become part of my residuary estate.”

. The testator died in the city of Philadelphia, on the 9th day of October 1866. The legatee died in California, February 1st 1871, never having made a personal application for the legacy.

The administrator of Mason H. Darrach’s estate presented his petition to the Orphans’ Court of Philadelphia, praying for an order or decree on Lewis Stover, the executor of Mason Hutchins, to pay over to the petitioner the arrears of said annuity, due and unpaid at Darrach’s death.

The court below was of the opinion that the legacy was vested, in that the condition was annexed, not to the gift itself, but to the payment, and that as the condition became impossible, by the death of the donee, it. was discharged, and the legacy became absolute. They therefore decreed the arrears thereof to the appellee.

In this we think the court erred. It is a cardinal canon' in the construction of wills, that the intent of the testator, as gathered from the whole instrument, must prevail over merely technical rules.

It is our duty, then, to discover, if we can, what Mason Hutchins intended by this bequest. To this end we must first ascertain clearly what is meant by the term “vested” or “ absolute” legacy. The books-define it to be an immediate and fixed right in the gift, though the enjoyment thereof may be postponed to a subsequent period; a vested interest, which is transferable or transmissible; a present obligation, though it may be payable in the future: Evans’ Lessee v. Davis, 1 Yeates 340 ; Fearne on Rem. 149.

Now taking the entire item of this will together, does it import such a bequest as that indicated in the above definitions, or is it so conditioned and restricted as to render it contingent ? Had the testator stopped with the first clause, no doubt could have arisen as to what he intended. It would then have been obvious that his nephew took a present right in the gift; one which he could transfer or assign, or transmit to his next of kin, and one upon which his creditors could seize as the several payments became due. But the second cliiuse so greatly qualifies the first as wholly to exclude the above-mentioned powers. Mason H. Darrach could certainly not transfer or assign his interest in the annuity, neither could his creditors attach it, or any of the payments thereof. Why is this, if it be not that the subsequent condition so qualifies the precedent gift that no present interest is left in the donee ? Can it be, that one sui juris may have a vested interest in an estate, and yet, in the absence of any prohibition of alienation in the grant or will by which the estate arises, he may not be able to transfer or assign it ? Now there is nothing in this will which, in terms, prohibits alienation. The want of such power, therefore, must arise from the character of the gift. The donee has no right to it, not only until the time arrives at which it is payable, but until he presents himself personally, and even then he cannot direct its payment to some one else, for it cannot be paid “to any other person for him.”

We thus perceive that he has not the slightest control over the bequest until it is paid into his own personal hands. Does it not thus become patent that the plain intent of the testator was to make the second clause a condition, upon the performance of which only, the gift could vest.? Would we materially alter the sense or spirit of the item were we to read it, “ I give and bequeath to Mason H. Darrach an annuity of $1000, for and during the term of his natural'life, to be paid to him only when he shall personally apply to my executor for the same.” Yet this would, beyond controversy, make the legacy contingent: 2 Fearne on Rem. 142.

Surely, when we consider the close connection of the two clauses of the item, as indicated by the conjunctive word “and,”' and the words “ the said sum shall be paid to him only, and upon his personal application therefor, and to no other person for him,” we can construe the meaning of the testator in no other manner than that his donee should only be entitled to the gift when or if he applied personally therefor.

“If,” says Justice Williams, in McClure’s Appeal, 22 P. F. Smith 419, “ the arrival of the time is a condition, without which the testator would not have made the bequests, * * * * then, in the very nature of the thing, the time is annexed to the substance of the gift; and if the condition or contingency does not happen the gift never arises.”

Beyond peradventure, the time fixed for payment, in the present case, was when Mason H. Darrach should personally appear and demand it. We think further, that it is quite clear, that Mason Hutchins would never have made the bequest had he known that his nephew would never apply for it. If he has failed to make his intention clearupon this point, it is not for the want of emphatic language.

As to the point made on the power of the Orphans’ Court to enforce the payment of legacies, we dispose thereof by referring to Dundas’ Appeal, 23 P. F. Smith 474.

The decree of the Orphans’ Court is reversed at the cost of the appellee, and the petition of Thomas B. Darrach, administrator, is dismissed.

Sharswood and Paxsoít, JJ., dissented.,.


author: Mr. Justice Mercur

text:
    Carter et al. versus Philadelphia Coal Co.
    1. A coal company, indebted to defendants, engaged them to sell their coal: defendants employed brokers to sell for them; in settlement with the company, they charged commissions paid the brokers ; in a suit by the company to recover back the commissions, evidence was proper that it was usual and customary in the Philadelphia coal trade, where the business was transacted, to sell through the agency of brokers.
    2. “ Usual and customary,” imports'such a fixed and established usage as to be declared general by the trade.
    3. Usages of a particular trade are presumed to be known to those engaged in it; they are supposed to have entered into the contract.
    January 8th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: No. 166, to January »Term 1873.
    This was an action of assumpsit, brought January 25th 1871, by the Philadelphia Coal Company against William T. Carter and Charles E. Schoener, partners as William T. Carter & Co.
    Prior to 1867 the firm of G. W. Huntzinger & Co., consisting of G. W. Huntzinger and Harry L. Cake, were mining and shipping coal from Girard lands, in Schuylkill county, leased by them. In 1867, this firm was incorporated as the Philadelphia Coal Company: Cake becoming president, Huntzinger, treasurer, and George C. Mitchell, secretary; the company consisted of five directors. Huntzinger & Co. and the plaintiffs, who were coal miners and shippers, before and after the incorporation had had business transactions with the defendants, and as the result of these transactions, on the 1st of July 1867, they owed defendants $60,000.
    In November 1867, by arrangement, the defendants became directors in the corporation ; Cake, Huntzinger and D. B. Brown, three of the old directors, being continued in the direction. Carter was chosen president, and continued president for about two years. The defendants sold coal for the company to the Philadelphia & Reading Railroad Company, and in doing so, employed Shoemaker & McIntyre, coal brokers, and paid them commissions, which th'ey charged to plaintiffs and settled their transactions with them November 20th 1868. This suit was brought to recover back these commissions from the defendants.
    The plaintiffs gave evidence by G. W. Huntzinger, that the “ Carter party,” were ¡in the minority in the board of directors. The whole stock of the company was $350,000, and $200,000 were transferred to the defendants as collateral security for the debt of Huntzinger & Co. due to them; the indebtedness in 1868 amounted to $100,000. In November 1868, the plaintiffs settled finally with defendants, who accepted from them notes which they held, and their own notes at long dates, in payment.

      The stock was retransferred to plaintiffs as the debt was paid off; the first complaint as to the commissions was in November or December 1868. The accounts with defendants were kept in the books of the plaintiffs by Gr. W. Mitchell, the secretary.
    On re-examination of witness, the plaintiffs proposed to ask him when and why Mitchell was removed from the secretaryship. Defendants objected to the question; it was admitted and a bill of exceptions sealed.
    The witness said, “ Mitchell was removed on the 6th of November 1868, because we could no longer live under this rule of William T. Carter & Co.” '
    H. L. Cake testified that he first had knowledge of the charge of the commissions in July 1868; he had never examined the books of the plaintiffs. On November 4th 1868, he found that Mitchell had made the entry allowing commissions to defendants for sales as made by Shoemaker & McIntyre, which witness himself had made to the railroad company. Witness received orders from that company every month for coal.
    The president of the railroad company, testified that they had made no purchase through Shoemaker & McIntyre.
    There was other evidence in support of their case.
    For the defendants, Carter testified that during his presidency of the company the accounts were regularly entered, and that he gave the secretary no special- instructions about entering the accounts. Huntzinger always had access to the books; all the money paid Shoemaker & McIntyre was earned by them; “ commissions” was the only item objected to at the settlements; witness proposed to Cake to carry a balance of $30,000 or $40,000, for from three .to fifteen months, and Cake said in consideration of that offer he withdrew all objection to the commissions and settled in full; the defendants had a controlling vote at the stockholders’ meetings.
    The defendants then offered to show by a miner and shipper of coal that during the years from 1867 to 1871 inclusive, “ it had been the usual and customary method of the Philadelphia coal trade, to sell their coal through the agency of brokers, to the railroad company, to whom a commission was paid ; that witness sold largely to the Reading Railroad Company, through Shoemaker & McIntyre, and that the sales .so effected, could not have been effected in any other way.”
    The offer was objected to, rejected and a bill of exceptions sealed for defendants.
    The defendants gave evidence of the manner in which they had conducted their agency in selling coal for plaintiffs, and in keeping their accounts ; that Huntzinger agreed to the propriety of selling the coal through Shoemaker & McIntyre; that he said it was better to pay them commission than have coal sold by them for other persons.
    Henry F. Shoemaker, of the firm of Shoemaker & McIntyre, testified that his firm had an order from the Philadelphia & Beading Bailroad Company to buy coal; that it was desirable to sell coal to that company; the firm agreed with Carter & Huntzinger, who represented the-plaintiffs, to sell all plaintiffs’ coal for 15 cents per ton; but for this arrangement the plaintiffs’ collieries would have been idle.
    Carter was again called, and defendants offered to show by him that coal could not be sold except to the Philadelphia & Beading Bailroad Company. This was rejected, after- objection by the plaintiffs, and a bill of exceptions was sealed.
    There was evidence tending to show that the principal amount of coal sold by the plaintiffs was to the Philadelphia & Beading Bailroad Company.
    At the final settlement, a receipt was given as follows:—
    “Beceived, Phila., Nov. 20th 1868, of Messers. Gr. W. Hunt-zinger & Co., their two accejotances of H. L. Cake’s drafts, as follows : One dated November 30th 1868, 4 months after date, for $10,000, the other dated November 20th 1868, for $5809.22 ; also check No. 2406, on First National Bank, for $14,000, being the balance due us, as per settlement made this day.

    “ W. T. Cartee & Co.
    “$10,000.00
    5,809.23
    14,000.00
    $29,809.23”
    The court (Mitchell, J.) charged :—
    “ This is an action to recover back commissions alleged to be improperly contained in accounts between the parties.
    “ The plaintiffs’ case is that the commissions were not earned by Shoemaker & McIntyre; sales having in fact been made by Cake, and coal taken from the car by the Beading Bailroad Company ; and that the charges are inserted in the defendants’ accounts in violation of duty and good faith. The defence is:—
    “ 1. That the commissions were earned by Shoemaker & McIntyre. That they were paid in good faith by defendants to Shoemaker & McIntyre. That the commissions were moderate. That sales could not have been otherwise made.
    “ 2. That plaintiffs knew of the payment of these commissions, and acquiesced therein at the time.
    “ 3. That any objections that may have been subsequently raised thereto, were abandoned in November 1868, at the final settlement.
    “ [The defendants held a large majority of the stock; therefore,the control of the company was entirely in their hands.] They were bound to strict and peculiar fidelity.
    “ The defendants, Wm. T. Carter & Co., were composed of the president and one director of the plaintiffs’ company, and their accounts were entered and passed by themselves. The jury, therefore, will examine closely these accounts, as the parties were under special obligations to good faith and careful dealing.
    “ The plaintiffs’ company were, in fact, G. W. Huntzinger & Co. The evidence is that Huntzinger & Co. owned the stock and handed it over as collateral, and on payment of their debt it was returned to them. While therefore Carter, as president, and Schoener, as director, were bound to conduct the affairs of the company with good faith, and to show this in the clearest manner in their dealings with themselves as Wm. T. Carter & Co., yet they had a right to treat G. W. Huntzinger & Co. as the coal company; and if G. W. Huntzinger & Co. were satisfied with the management and with the things that were done, Carter & Co. were not bound to look for a more formal approval by the coal company as such.
    “ 1. The first question for your consideration is, whether these sales were made by Shoemaker & McIntyre ? * * *
    “ 4. If Huntzinger & Co. knew of the payment of these commissions and acquiesced in them, they would be bound. Upon this point you have the testimony of these parties, and also of Mr. Shoemaker and Mr. Mitchell, and the fact of the entries on the company’s book, to which Mr. Huntzinger, at least, always had access.” * * *
    The verdict was for the plaintiff for $2000.
    The defendants took a writ of error, they assigned for error : — >
    1. Allowing the plaintiffs to give evidence why Mitchell, secretary of the company, was removed.
    8. Refusing to allow the defendants to prove that it was the custom of the Philadelphia coal trade to sell by the agency of brokers.
    5. Refusing to allow defendants to prove that the plaintiffs’ coal could not have been sold to the railroad cpmpany except through. Shoemaker & McIntyre.
    7. The part of the charge in brackets.

      M. J. Micheson and T. Ouyler, for plaintiffs in error.
    As to the first assignment: it was not proper to introduce new matter on re-examination: 1 Starkie on Ev., sects 231,467 and note. The Queen’s Case, 2 Brod. & Bing. 297. The evidence being irrelevant should not have been submitted to the jury : Kendall ¶. Lee, 2 Penna. -R. 488 ; Kocher v. Bowman, 10 Watts 128 ; Bratton v. Mitchell, 3 Barr 44; Stevenson v. Stewart, 1 Jones 808. As to the third and fifth assignments: they cited Fleet v. Murton, Law Rep. 7 Q. B. 130. There being a known custom in the coal trade, evidencie might be given in relation to it, although not expressed in the contract: 1 Starkie on Ev., sect. 710 ; Webb v. Plummer, 2 B. & Ald. 746 ; Roberts v. Barker, 1 C. & M. 808; Hughes v. Gordon, 1 Bligh. 287; Clinan v. Cooke, 1 Sch. & Lef. 22.

      Gr. M. Dallas, for defendants in error.
    March 22d 1875.
   Mr. Justice Mercur

delivered the opinion of the court,

This was a suit to recover back certain commissions, claimed by, and allowed to, the plaintiffs in error on a previous settlement between the parties. It was a settlement of the business enterprise, generally, in which the parties were jointly interested; and also of the particular transaction in which the plaintiff in error claimed to have paid the commissions. On that settlement the defendant in error was found to be indebted in a sum exceeding $20,000. At this time the defendant paid a portion of the sum in which it was found to be indebted, and gave drafts for the residue, payable in a few months thereafter. More than two years after the settlement, and after the payment of the drafts, this suit was brought. On the trial the objection does not appear to have been taken that the settlement could be overthrown only on proof of fraud, mistake or ignorance of legal rights in making it; but the merits of the claim, made by the plaintiffs in error for the commissions, were inquired into, as if no settlement thereof had previously been made. The actual payment of the commissions by the plaintiffs in error was not strongly questioned; but whether they had been paid in good faith, or in a heedless and improvident manner, was the contention. They had been paid to Shoemaker & McIntyre, who were coal brokers. The plaintiffs in error sought to prove a faithful and careful performance of their agency. In furtherance of this object it was clearly evidence of good faith and prudence for them to show that they had sold according “to the usual and customary method of the Philadelphia coal trade,” and that such method was to sell “ through the agency of brokers, to whom a commission was paid.” It was here the office of the parties was kept and their business transacted. It is urged that the offer is insufficient, inasmuch as it does not propose to prove a usage based upon a custom “which was established, uniform and general.” It is true the offer is not in these precise words, yet we think the language imports substantially the same meaning. “ Usual and customary ” clearly import something more than casual or exceptional cases. They indicate such a fixed and established usage as to be declared general by the trade. Besides, it is not necessary to prove all the elements of a custom necessary to make a law; the object here is to interpret a contract. The usages of a particular trade or business are presumed to be known to those engaged therein. These may, therefore, in the absence of any. express stipulation inconsistent therewith, be supposed to have entered into the understanding of the parties in making the contract. They furnish a most valuable aid in arriving at the mutual assent of the parties, and when not contrary to law are admissible in evidence: Lewis v. Marshall, 7 M. & G. 744; United States v. Duval, 1 Gilpin 372; 2 Greenl. Evid., § 251; Finness v. Howe, 8 Wend. 247; Outwater v. Nelson, 20 Barb. 29; Girard Fire and Marine Insurance Co. v. Stephenson, 1 Wright 293; Helme v. The Philadelphia Life Insurance Co., 11 P. F. Smith 107 ; McMasters v. The Pennsylvania Railroad Co., 19 Id. 374. The evidence shows the Reading Railroad Company purchased the largest quantity of the coal. Such a purchaser may well have been considered very desirable. If so, it was certainly pertinent to show that those sales could only be made through Shoemaker & McIntyre. We think, therefore, the evidence covered by the third and fifth assignments should have been received. The seventh assignment is to that portion of the charge of the court wherein it is said, “ the defendants held a large majority of the stock of the company, therefore, the control of the company was entirely in their hands.” It is true Carter & Co. did hold a majority of the stock, but they had accepted it under an arrangement by which they were to have a minority of the directors. The board consisted of five directors. Carter & Co. were to have, and in fact did have, only two of them. All the coal in question was sold within one-year. No change'of directors was made within that time. The controlling management was therefore in the other three directors. Under the circumstances, and for the time in question, a majority of the stock did not put “ the control of the company entirely in the hands of Carter & Co.,” and, in so charging, the learned judge erred.

Inasmuch as the reason given for the removal of the secretary was not made known to the plaintiffs in error, they ought not to be affected thereby. It therefore follows that the evidence covered by the first assignment ought not to have been received.

Judgment reversed and a venire facias de novo awarded.


text:
    Wistar versus Ollis et al.

    1. In a proceeding under the Landlord and Tenant Act of March 21st 1772, the record of the justices being regular, it is error for the Common Pleas on certiorari to hear evidence aliunde that there was irregularity in summoning the jurors.
    2. To establish fraud or want of jurisdiction, the court may hear facts by affidavit; but not to show irregularity which would contradict the records. If heard by the court below, on removal of the record to the Supreme Court they will be disregarded.
    3. If there be irregularity in summoning the jurors, and the defendants appear before the inquest and are heard on the merits, they will he held to have waived all irregularities.
    4. Ayers v. Novinger,“8 Barr 412; McMasters v. Oarothers, 1 Id. 324, remarked on and criticised.
    January 12th, 1875.
    Before Agnew,- C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Philadelphia: Of January Term 1873, No. 191.
    The proceedings in this case were under the Landlord and Tenant Act, and were commenced September 2d 1872, before Andrew, J. Boswell and Joseph Plankinton, Esq’rs., aldermen of Philadelphia.
    The complaint was made by Erank Wistar, assignee of Albert D. Cooke. The complainant averred that he was in possession of certain premises (describing them) which had formerly been in possession of Albert D. Cooke, who demised them to T. B. Ollis and A. Ollis, for the period of two years and eight months, which was ended. There were the appropriate averments thát the complainant had given notice to quit, the tenants had refused, and that three months has elapsed since its service, &c.
    The aldermen issued their warrant to the sheriff, commanding him to summon twelve freeholders to meet on the 5 th of September 1872, &c., and also to summon the defendants to appear at the same time to show cause why they should not make restitution, &c.
    It appeared by the record that the sheriff had summoned twelve substantial freeholders of his bailiwick, and also the defendants, according to the command of the warrant. The inquisition was taken before the aldermen by the oaths of the twelve men, naming them, and a number of witnesses examined — the defendants being present. They found the allegations of the complaint true, assessed the damages against the defendants at $360, besides costs, and judgment was rendered against them that they give possession of the premises to the complainants and that he recover the damages, $360, from the defendants, &c.
    To these proceedings the defendants filed exceptions, viz :
    1. The jury were not summoned, selected or impanneled by the sheriff of Philadelphia county, to whom said warrant was directed.
    2. They were selected by one Albert Stout, who sat as one of the jury, without authority.
    3. The twelve men, with the justices, had no authority or jurisdiction to hear and determine said case.
    At the same time the following affidavit of Thomas B. Ollis was filed. '
    “ That the twelve men whose names are attached to the above inquisition, and who sat with the justices to hear and determine the above case, were not selected nor summoned by the sheriff, &c., hut that the said twelve men were selected and summoned by one Albert Stout, who himself acted as one of the twelve above named; that the said Albert Stout had no authority in law to select said jury, and the said twelve men did not constitute a legal inquisition of freeholders having authority to hear and determine said case.”
    On the same day the court ordered that depositions be taken only upon the question : “ whether the sheriff did, in fact and in person, select the freeholders mentioned in the affidavit filed, reserving the right in the court to reject said evidence for any legalpause.”
    Depositions were accordingly taken. Albert Stout, who was one of the inquisition, in his deposition testified : “that he was a clerk in the sheriff’s office at the time the jurors in this case were selected ; that the jurors were selected in the usual way, and that three of them were absent at their meeting ; that Stokes, a deputy sheriff, had charge of the jury; that he had returned to the sheriff’s office and left witness in charge, authorizing witness, if all the jury did not come, to supply their places, which witness did by selecting three of the men who sat on the inquest.”
    The court below, without delivering an opinion, reversed the judgment of the aldermen.
    The complainant removed the record to the Supreme Court, where they assigned for error,
    1. The reversal of the aldermen’s judgment.
    2. Making the order for taking depositions.
    3. In returning with the writ of error the deposition of Stout as part of the record and proceedings below.

      A. M. Burton, for plaintiff in error. —
    The record of the proceedings before the aldermen was strictly correct and is conclusive. Parol evidence cannot be heard to contradict it: Mentz v. Hamman, 5 Whart. 150. A sheriff’s return is of such high authority that it cannot be contradicted: Rice v. Groff, 8 P. F. Smith 116; Dalt. 189, 190, 191; Rolle’s Ab., Return O; Watson on Sheriffs 72; Diller v. Roberts, 13 S. & R. 60. Nothing is before the court but the regularity of the proceedings before the justices as it appears upon the record: Pennsylvania Railroad Co. v. Lutheran Congregation, 3 P. F. Smith 445; McMillan v. Graham, 4 Barr 140; Buchanan v. Baxter, 17 P. F. Smith 348 ; Railroad Company v. Keenan, 6 Id. 198; Union Canal Company v. Keiser, 7 Harris 134.

      L. Stover, for defendants in error. —
    The depositions do not seek to contradict the alleged record, but show that however perfect in form, it is no record at all, because the men who made it had no authority to sit in judgment on the case. Depositions from the earliest period have been used in such cases: Vansciver v. Bolton, 2 Dall. 114; Berginhofen v. Martin, 8 Yeates 479; Buckmyer v. Dubs, 5 Binn. 29; Dumber v. Jones, 1 Ash. 215; Ayres v. Novinger, 8 Barr 412; Railroad Co. v. Heister, Id. 444; 1 Tr. & H. Practice 715. The court below may receive evidence or not, and it is not a subject of a writ of error: Shortz v. Quigley, 1 Binn. 222; Wood v. Colwell, 10 Casey 92. And they are the sole judges as to what papers shall constitute the record: Bassler v. Niesly, 1 S. & R. 472; Munderbach v. Lutz, 14 Id. 125.
    March 29th 1875.
   Mr. Justice Mercur

delivered the opinion of the court,

This was a proceeding before two aldermen to dispossess a tenant under the Act of 21st March 1772. On certiorari from the Common Pleas, the proceedings were reversed; to that judgment this writ of error was taken.

The complaint, warrant, sheriff’s return thereon, and inquisition, were in-due form of law. The record of the aldermen avers that the sheriff appeared before them on the day the inquisition was held, and returned that by virtue of the warrant to him directed, he had summoned twelve substantial freeholders, to wit (giving their names), and had also summoned the defendants. The record further shows, that on the hearing before the inquest, the defendants appeared by counsel, and introduced witnesses in their behalf. No objection was there taken to the manner in which the jurors had been selected or summoned. After a full trial on the merits, the inquest found against the defendants.

The certiorari issued by the court below was not to the inquest, but to the court of whose record the inquest formed a part. The record of the aldermen was regular on its face. There was no averment of fraud, nor that the jurors were not substantial freeholders. They were not charged with improper conduct in the discharge of their duties. They, as well as the aldermen, possessed all the qualifications necessary to give them jurisdiction. The effort was to contradict the record on parol proof of an irregularity in the manner of summoning three jurors, in place of that number of those first summoned, who failed to attend. To establish fraud or want of jurisdiction, the court might have heard facts by affidavits, but not to show an irregularity which contradicted the records. When heard by the court below they do not come regularly before this court and should be disregarded: Boggs v. Black, 1 Binn. 336; Blashford v. Duncan, 2 S. & R. 480; Cunningham v. Gardner, 4 W. & S. 120; McMillan v. Graham, 4 Barr 140; Union Canal Company v. Keiser, 7 Harris 134; Bedford v. Kelly, 11 P. F. Smith 491; Buchanan v. Baxter, 17 Id. 348.

It is not designed to deny the correctness of the ruling in McMasters v. Carothers, 1 Barr 324, and in Ayers v. Novinger, 8 Id. 412, in which it was held that the selection of a jury of inquest was so far a judicial act imposed on the sheriff, that it could not be delegated to another; but they are distinguishable from the present case. The former was a case of partition in the Orphans’ Court, in which an inquest had been awarded. The case is badly reported, but it appears the jurors were summoned by a constable from a list furnished by one whose authority is not shown-. In setting aside the inquisition, this court said there was a gross inequality in the partition, and the case. presented “ a bundle of irregularities.” In the latter case the record showed that the sheriff had deputed one juror to execute the writ, and the depositions showed that this special deputation was made at the request of the landlord’s attorney. This was therefore a clear case of fraud on the part of the landlord.

■There is, however, another reason why the defendants should not be permitted to now allege an irregularity in the' summoning of a part of the jurors. Having been personally served, and attended on the hearing; having gone to trial on the merits, they shall be held to have waived all errors and irregularities in the selection and summoning of the jurors. It is true the Acts of Assembly, which hold that pleading the general issue or a trial on the merits in any court, civil or criminal, is a waiver of all irregularities in drawing and summoning the jurors, do not in express terms apply to an inquest under the Landlord and Tenant Act, yet the whole reason and spirit of them applies with full force: Burton v. Ehrlich, 3 Harris 236; Fife et al. v. Commonwealth, 5 Casey 429; Jewell v. Commonwealth, 10 Harris 94. It follows, therefore, the learned judge erred in reversing the judgment of the aldermen.

Judgment of the court below reversed, and the judgment of the aldermen is affirmed at the costs of the defendant below and here.


author: Chief Justice Aatraw

text:
    In the Matter of Sheppard’s Contested Election.
    1. Sheppard was returned elected district attorney ; the Quarter Sessions decreed his election invalid, and that Gibbons was elected. Sheppard removed the record to the Supreme Court by certiorari, pending which, by permission of the Quarter Sessions, he filed a petition alleging “ arithmetical and clerical errors in the table,” on which the decree was based, averring that he had been elected, praying for a re-examination, and that he should be declared elected ; the original decree was afterwards affirmed by the Supreme Court, and the Court of Quarter Sessions subsequently made the examination and decreed Sheppard elected. Held, that such proceedings were in the power of the Quarter Sessions, although after the term.
    2. The Supreme Court has no power to review the merits, and can only bring up the record for special purposes ; the power to correct errors is in the Quarter Sessions.
    3. The Supremo Court, in affirming the decree, did not confirm it on the merits ; it affirmed merely that the Quarter Sessions proceeded in duo form of law.
    4. The people were not to be ousted of their right to have the officer whom they had elected, by his act.
    January 14th 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Certiorari to the Court of Quarter Sessions of Philadelphia, at the instance of Charles Gibbons, in the matter of the contested election of Eurman Sheppard as District Attorney: Of January Term 1873, No. 197.
    In 1868, Furman Sheppard was returned elected district attorney for Philadelphia for three years, at the general election held in October in that year. On the 23d of October 1868, the petition of a number of citizens of Philadelphia was presented to the Court of Quarter Sessions, contesting the election, on the ground that a number of votes had been illegally counted for Mr. Sheppard, sufficient to reduce his aggregate vote below that of his competitor, Charles Gibbons, who, the petitioners averred, was therefore duly elected.
    On the 16th of October 1869, the court decreed that Mr. Gibbons had been duly elected. On the 19th of October Mr. Sheppard removed the proceedings to the Supreme Court by certiorari; the writ being brought into the Court of Quarter Sessions on that day. On the 25th of October 1869 Mr. Gibbons was sworn into office. On the 28th of October 1869, Mr. Sheppard, by leave of the court, filed a petition in the Quarter Sessions, setting out the decree, and representing that it was based on “ certain principles which were announced in the opinion then delivered,” and on a table and estimate embraced in the opinion; this table also was set out in the petition, and showed that Mr. Gibbons had received a majority of sixty-eight votes over Mr. Sheppard.
    The petition proceeded:—
    “ Your petitioner has made a careful examination of the above table and estimate, and has found in it a number of omissions and arithmetical and clerical errors, to the extent of one hundred and twelve votes, showing that Charles Gibbons, Esq., was not elected by a majority of sixty-eight votes, as was adjudged by your honorable court, but that, upon the principles adopted in the said decision and judgment, your petitioner was elected by a majority of not less than forty-four votes.
    “Your petitioner’s computation is based upon the figures and calculations of the contestant alone, without any reference to the respondent’s view of the testimony in the case, which figures and computations will be found set forth in the several paper-books of the contestant, and exhibit the petitioner’s case in the most unfavorable light in which it can be viewed.” * * *
    Then follow the omissions and errors alleged, showing the result he had stated.
    The prayer was that the court would re-examine and reconsider the count and the judgment entered on it, and declare the true vote, &e.
    On. the 4th of November 1869, Mr. Sheppard filed another petition alleging further errors in the count, &c.
    On the 3d of January 1870, the certiorari, with the record of the Quarter Sessions, was returned to the Supreme Court.
    On the 23d of March 1870, the remittitur from the Supreme Court was filed, with the judgment of the Supreme Court: “ Decree affirmed.”
    On the 28th of March 1870, Mr. Gibbons filed a paper, objecting to any further proceedings on the petitions of Mr. Sheppard :—
    1. Because the court on the 16th October 1869 decreed that he was duly elected district attorney.
    2. Because he had taken the oath of office on the 25th of October 1869; had then entered on the duties of the office and had continued to perform them ever since.
    3. And because the proceedings in the case which had been removed to the Supreme Court by certiorari had been affirmed.
    After hearing — the opinion of the Court of Quarter Sessions was delivered by Allison, P. J. It was of great length and exhaustive. It concluded as follows:—
    * * * “ We can claim to have given the case a most careful examination, with all these lights to aid us. In this examination we have adhered firmly to the principles contained in the opinion of the court, which was delivered by Judge Brewster. In nothing have they been varied or departed from. We have confined ourselves to the correction of the account, where figures have been required to be placed in it, in consequence of accidental oversight; with an abandonment of an admitted error in the mode of stating the account in purging a poll, and with the revision of our judgment upon the evidence as to whether votes to be received or rejected are legal or illegal votes.
    “ The strictest line of proof has been applied to every voter, and the result of the investigation will be stated in summing up the corrected tables of the divisions to which our attention has been directed.
    “We have refused credits, which have been claimed in every instance, in which the testimony as to the voters, who were primd, facie illegal, did not show that, at the time at which they offered to deposit their ballots, the offer was supported by the proof which the law demands. The vouching by election officers, without making the requisite proof in each case, we rejected.

      “ We hold that to enter upon the list of voters that a voter was vouched for hy a person whose name is written upon the list, is not in itself a full compliance with the law. In no case has a vote been counted as legal where the proof showed that a person who was assessed as residing at a place designated upon the assessment list had removed therefrom before the election, unless it was established by evidence that he had not removed from the election division.

      “ We place to the credit of Mr. Sheppard thirty of the thirty-six votes of naturalized citizens, which were refused because the voters held certificates of naturalization issued by the Supreme Court. This credit of thirty-six is reduced by six, because it is admitted by the petitioner. The full credit was given to Mr. Eox in the decision of the court which was made in October last. The thirty-six votes were allowed because we regarded the polls, as to those voters, closed against them. They offered to vote, and were in place to be challenged upon every ground of qualification, bnt were turned away from the polls upon the single objection that they had been naturalized in the Supreme Court. The proofs were that they intended to vote for the petitioner. As to these voters, Judge Brewster remarks : ‘ It is established by thirty-six persons that their votes were rejected, although they were duly naturalized, and that they would have voted for the respondents.’
    “ Beyond all question these votes should now be credited to the incumbents. The papers they produced were genuine certificates, issued by the prothonotary under the seal of the highest court of our state. Ño other tribunal should or can impeach its judgments, and they established the right of each of these witnesses to his vote, if otherwise qualified. And if they were not otherwise qualified, under the peculiar circumstances which surrounded them, we hold that this ought to have been shown by the contestants.
    “ It was not pretended but that the admission of these votes was exceptional, and rested upon a different ground from that upon which other votes had been credited to the incumbents. We decided to place them in the count, unless they were shown to be illegal, giving to them all the presumption which belongs to those whose legal prima facies are established. Of the hundreds who were claimed by the incumbents as wrongfully rejected, for the same reason, thirty-six are all who were called, and the fair presumption is they were all who could,, with safety to the incumbents, be called to testify that they intended to vote the Democratic ticket. These thirty-six were allowed. The rest of this claim, which, as Judge Brewster remarked ‘ was founded on multiplication of guesses,’ we rejected. In our judgment no good reason has been presented which would require us to alter our opinion as to' these votes. The oversight as to this credit, to the number of thirty votes, is now allowed to Mr. Sheppard.
    “In the Eighth division of the Ninth Ward there was error in charging fourteen illegal votes too many to Mr. Sheppard. The testimony shows that nineteen fraudulent and fourteen unassessed votes were polled during the last three hours. The vote of these hours was.purged to the number of forty-seven. It should have been thirty-three. There was charged fourteen fraudulent votes in addition to the nineteen, but the evidence fails to satisfy us of the correctness of this conclusion. On the contrary, we are convinced that they are included in the nineteen false personations of the three hours, the vote of which has been purged. There is an admitted error in Mr. Sheppard’s favor of five votes in the Sixteenth division of the Twentieth Ward.
    “ The laborious portion of the duty which we have been required to perform was the labor of re-examining and carefully weighing the testimony as to the individual votes which were claimed by the petitioner, in a readjustment of the account of debit and credit, in the Eighth division of the Ninth Ward, the Seventh division of the Seventeenth Ward, the Fourth division of the Twenty-fifth Ward, and in the Sixth division of the Seventeenth Ward.
    “ The credits which we give to Mr. Gibbons consist of error in striking out the hourly return from the Second division of the First Ward of seven votes; and a similar error in the Tenth division of the First Ward of eleven votes.
    “We reduce the charge against him of fifty-two illegal votes to forty-one, a credit of eleven votes.
    “ To this is to be added the credit of six, deducted from the thirty-six votes of naturalized citizens credited to Mr. Fox.
    “We do not allow the credit of five votes claimed by Mr. Gibbons in his statement submitted to the court, of an error which, Mr. Gerhart states, is to be found on the tally-list for the ninth hour of the Sixth division of the Seventeenth Ward. An examination of the tally-list shows there is no such error.
    “ The result of our investigation is stated as follows:—
    “ If we confine ourselves to the petition and do not look at anything outside of it, Mr. Sheppard’s majority is thirty-five votes. But to restate the account on the basis of mistakes of omission and overcharge, as well as errors in purging the polls, it will stand thus— * * *
    [Then follows a statement showing the election of Mr. Sheppard by a majority of thirteen votes.]
    The court therefore decreed: “ That the said Furman Sheppard received the greatest number of the legal votes cast at the election held in the city and county of Philadelphia on the 2d Tuesday of October 1868, for the office of district attorney, and was duly elected to the said office, and that the order and decree of the 16th of October 1869, be annulled and set aside.”
    Mr*. Gibbons removed the record to the Supreme Court by certiorari. He assigned for error that the court erred:—
    I, 2. In allowing the petitions of Mr. Sheppard to be filed after the writ of certiorari sued out by him had been filed in the court below.
    8. In the decree of May 3d 1870, that Mr. Sheppard had received the largest number of votes for district attorney; in annulling the decree of October 16th 1869; the decree of May 3d 1870, “having been entered after the expiration of the term at which, by the order and decree of October 16th 1869, it had been adjudged and decreed by the said court that, * * * Charles Gibbons was duly elected to the office of district attorney, and after the said last-mentioned judgment and decree had been affirmed by the Supreme Court on a writ of certiorari sued out by the said Eurman Sheppard, whereby the record of the said judgment and the proceedings whereon it was founded had been removed to the Supreme Court, and after the record of the decree of the Supreme Court, affirming the judgment and decree of the court below, had been remitted to the court below.”

      J. JE. Gfowen and R. O. MeMurtrie, for certiorari.
    The certiorari was a supersedeas and the subsequent proceedings were erroneous: Ewing v. Thompson, 7 Wright 372; Patchin v. The Mayor, 13 Wendell 664; Gardiner v. Murray, 4 Teates 560. The petitions were waived by the subsequent proceedings on the certiorari. The petitions proposed to correct errors of fact, which cannot be done after the affirmance: Burleigh v. Harris, 2 Strange 975; Lambell v. Pretty John, 1 Id. 690; McMurray v. Erie, 9 P. F. Smith 223. The decree could not be altered after the expiration of the term: Commonwealth v. Maloy, 7 P. F. Smith 291; Caltin v. Robinson, 2 Watts 373; Stephens v. Cowan, 6 Watts 511; Ullery v. Clark, 6 Harris 148 ; Brush v. Robbins, 3 McLean 486; Medford v. Dorsey, 4 Wash. C. C. R. 433.

      Gf. W. Biddle and B. H. Brewster, contra.

    Such a proceeding as this should not be entertained, the office having expired: Tapping on Mandamus 15; Cole on Orim. Information 138. The court below had the right to re-examine the calculations, the certiorari bearing solely on the record: Election Cases, 15 P. F. Smith 20. A judgment in some cases may be modified after the term: Riegel v. Wilson, 10 P. F. Smith 388; Kalbach v. Fisher, 1 Rawle 323 ; Castle v. Reynolds, 10 Watts 52; Murray v. Cooper, 6 S. & R. 126; Rhoades v. Commonwealth, 3 Harris 276; Cochran v. Eldridge, 13 Wright 371.

      February 1st 1875.
   Chief Justice Aatraw

delivered the opinion of the court,

The application to this case of the principles governing the controversies between individuals who are affected by their own acts, is a source of error. Anological reasoning misleads, when true analogy is wanting. The proper character of this case must be stated, in order to determine it correctly. It was a contested election, a proceeding to redress a public wrong. Under the Act of 3d May 1850, contested elections for district attorney are to be decided in the manner provided for contesting the election of county officers: 1 Bright. Dig. 490. The Act of 2d July 1839 gives jurisdiction to the Courts of Quarter Sessions to “ hear and determine” all cases in which the election of any county or township officer' may be contested: 1 Bright. Dig. 572. The proceeding is on the petition of at least twenty qualified voters, complaining of an undue election or a false return. The petition in this case will be found in 15 P. F. Smith 22. It sets forth various frauds and illegal practices, alleged to be done with intent to hold an undue election, and to prevent an honest expression of the popular will at the election. In the opinion on page 29, it is said : “ The contest of an election is a remedy given to the people by petition for redress, when their suffrages have been thwarted by fraud or mistake. The instituted tribunal is the Court of Common Pleas, or Quarter Sessions, as the case may be. By the Acts of July 2d 1839 and February 3d 1854 the court is to proceed upon the merits of the complaint, and determine finally concerning the same according to the laws of this Commonwealth. No bill of exception is given to its decisions, nor appeal allowed, and its decisions are final. Consequently the Supreme Court has no jurisdiction over the subject.”

The Supreme Court thus having no power to review the merits, it can only, under its general power to supervise the proceedings of inferior tribunals, bring up the record for this special purpose. The power to correct errors in the judgment in this case belongs to the Quarter Sessions alone. To it is the cause of the people committed, and it alone can determine whether the popular will has been defeated by fraud or unjust practices.

Now, it is evident that when this court brought up the record of the Quarter Sessions by certiorari, it was for no purpose of correcting the findings or decree, and when it affirmed that finding or decree, it did not confirm it on the merits, for the plain reason it had no power to inquire into them. It simply affirmed that the Quarter Sessions had proceeded in due course of law. The duty of determining who was the legally elected district attorney demanded a truthful and faithful performance of this function, by the only lawful tribunal, and if it made a mistake by which the will of the people was actually falsified, instead of being ascertained, as the law required, this very duty demanded that the court should correct its own mistake in due time.

It is well settled that elections of the people should not he defeated by mere informality, and hence the law declared that the court “ should proceed upon the merits of the complainant.” This being the peculiar province of the Quarter Sessions, if it refused to correct its own palpable mistakes of calculation, which defeated the popular will, it would violate the very spirit and intent of the law which required it to ascertain the merits. Now what were the mistakes the court below had made? It had, by mere accident omitted to credit Mr. Sheppard with thirty-six votes of naturalized citizens which it had allowed to be legal. It had also made the mistake of deducting the purged votes from the majority of Mr. Sheppard, instead of deducting them from the whole poll before the majority was struck. Correcting these errors of calculation, Mr. Sheppard was actually elected as well as returned.

The duty of correction is admitted, but it is said it must be done while the record is in the breast of the court and therefore before the end of the term. This is the conceded rule; but does it apply to this case ? Clearly not: it is a case of suspended power only. The application was made during the term and while the record was yet in the breast of the court, and capable of correction. The court was advised of its mistakes, and entertained the application by receiving and permitting it to be filed. But its hands were then tied, its power to act suspended by the mandate of a superior court, to send up its record for alleged errors of procedure. It then could proceed no further, without disrespect to the superior tribunal. Here was the clear distinction. It was but a,n involuntary suspension of its undoubted power, not an extinguishment. The cause was not removed by an appeal, which ended its inquiry into the merits. The superior court acquired no jurisdiction over the merits, and therefore its writ could not deprive the inferior court of its rightful power to correct its own mistakes. Eor the .same reason the decree of the superior court, which it is said ratified and affirmed the false finding of the inferior court, did not affirm its falsehood. It could neither inquire into the merits of the petition for the correcting of mistakes nor strike them off, because they were received and filed in time.

There was, therefore, but a suspension of the power of correction in the Quarter Sessions, which was resumed when its record was returned. The term had passed only in point of time, not of judicial cognisance. It was not an attempt to correct an error of judgment after it had passed finally into the record. It was no re-judgment of the merits, when judgment had gone by. Such attempts are clearly illegal, as shown in the case of the Commonwealth v. Maloy, 7 P. F. Smith 291, and the error was not saved in that case by the illegal custom of entering immediately a rule to show cause why the sentence should not be modified or set aside» Under such a practice, no judgment could ever be final. But when a rightful petition for the correction of a mistake is received, on what principle of sound reasoning does the removal of the record by a higher authority for another and a rightful purpose, merge the pending petition for ever, and drive justice from her seat? It is only by false reasoning and ill-fitting analogies such a conclusion can be reached. It is said the suspension was Mr. Sheppard’s own act and he is estopped. True, it was his act, and it was his right also. He believed the proceeding which unseated him to be irregular. He failed, but his mistake did not oust the right of the people to have their own officer elected by them. Their right to have the merits of the election truthfully declared by the court was not barred by the suspension caused by his writ, from an appeal to the only tribunal having power to correct the mistake; they were not estopped by his act. The power of the court, though first moved by his petition, was not arrested in its motion because he failed. ' The court itself, as the chosen tribunal of the people, was bound to correct its errors when made known to them, in any way. It is a false analogy to say he elected his remedy, and therefore the court cannot exercise its inherent power to do right. It is a false analogy to say that the public redress is to be determined by rules applicable only by a private controversy. It is a false analogy to liken this case to the attempt of a court to rejudge its judgment after the term was passed. This was no such attempt. Here was a manifest mistake of calculation shown by the notes of the judge.

As remarked by C. J. Lewis, there is a great difference between reversing a judgment and correcting a clerical mistake in entering it: Smith v. Hood, 1 Casey 220. “It is doubtless true (remarks Judge Kennedy) that after the end of the term in which the court has rendered judgment upon a case stated on a general or special verdict from which an appeal may be taken by writ of error, or otherwise, it cannot alter or change it with a view to correct what the court upon further reflection may consider an error therein, and yet it would be going too far to say that such court may not afterwards and before any proceeding has been had upon the judgment, correct a mere mistake that has arisen in entering it differently from what was intended and perhaps directed:” Stephens v. Cowan, 6 Watts 513. And said Judge Tilghman, one of the safest of judges: “ But although it had not been during the term, it would not follow that the court had exceeded its power, for amendments have been allowed, not only after the term, but even after error brought:” Ordroneaux v. Prady, 6 S. & R. 511. The same excellent judge said also, in Bailey v. Musgrave, 2 S. & R. 220: “Where the object of the amendment is to do justice, courts are vested with extensive powers, not only by statute, but by the common law.”

Judge Yeates remarked in the same case: “ The strictness which formerly obtained in the granting of amendments, is said in our books to be almost entirely eradicated.” Still later, Chief Justice Gribson has said: “Not only has every court the power, but it is its duty to amend a clerical error, which stands in the way of justice:” Owen v. Simpson, 3 Watts 88.

The whole system of amendments is but an exercise of the power of correction to reach substantial justice. It is the every day practice of this court to disregard formal errors or mistakes that do no injustice. The end is the same that justice be not put to shame by her own ministers. Thé books are full of corrections, and the legislature has expanded the power from time to time.

. Names may be altered, parties added or struck out, the forms of action may be changed, two judgments may stand where only one stood before, the bar of death is removed from estates in joint contracts, and in some torts. Even the traditional sacredness of criminal procedure has been invaded by the legislative command, and indictments may be amended in certain respects which before were forbidden. And it may well be asked, why should not those be trusted to correct their own mere mistakes, who are intrusted with the greater power to decide the merits ?

This beneficial power may be illustrated by a few cases found in the books. Eight years after judgment, and after the defendant's death, the court permitted amendment by entering judgment nuna pro tuno: Murray v. Cooper, 6 S. & R. 126. In Ordroneaux v. Prady, supra, a plaintiff was permitted to amend his declaration after judgment by altering the time of the assumption. See also Bailey v. Musgrave, supra. In Stephens v. Cowan, 6 Watts 511, Judge Young, after the court rose in Indiana county, by letter from Ebensburg, stating that he had entered judgment by mistake-for the plaintiff, directed the prothonotary to “ set the error right by entering judgment for defendants.” On error this was maintained. After a lapse of forty years the court permitted a venditioni ex-ponas to be amended to include an executory devise levied on, but not recited in the venditioni exponas : De Haas v. Brown, 2 Barr 335. On the trial of an ejectment, under sheriff’s deed, an amendment of the venditioni exponas was permitted, by inserting the name of a defendant from the praecipe, and the sheriff’s sale thus passed the title: Sickler v. Overton, 3 Barr 325. A judgment entered by. mistake upon a warrant of attorney for a less amount than the obligation called for, was amended after execution executed, and an alias awarded to collect the balance Smith v. Wood & Co., supra. An omission in a levari facias of the command to levy the debt, was permitted after a sheriff’s sale, and on writ of error the amendment was held to be good: Peddle v. Hollinshead, 9 S. & R. 277. A writ of fi. fa. on which land was levied and sold, was in its entire body made out in a different case, and only the endorsement was right, and it was held to be amendable and the title passed: Owen v. Simpson, supra. In Fitzgerald v. Stewart, 3 P. F. Smith 343, a verdict for damages in slander was rendered for plaintiff and a motion for a new trial and in arrest of judgment entered. The plaintiff afterwards died, and her death was suggested, and a rule was entered to show cause why the writ and action should not abate. After several terms the rules were discharged and a judgment entered nunc pro tunc as of the term of the verdict when the plaintiff was alive. This action of the court was sustained. Thus when the plaintiff’s right of recovery was actually gone, in point of time, the power of the court was exerted through the legal fiction of a nunc pro tunc to prevent a failure of the verdict. In Ullery v. Clark, 6 Harris 148, we have an illustration of the difference between the correction of a mistake and an alteration of the judgment itself. The language of Judge Kennedy, in Stephens v. Cowan, was adopted, and it was’held that a judgment without costs, could not, two years afterwards, be corrected to stand as a judgment with costs. The question of costs was one of right and the court could not correct its error of judgment by a subsequent order. This is the true distinction. But a court powerless to correct its mere mistake of calculation, or the misprisions of its officer would be stripped of half its power to perform its true functions.

Upon the whole, we can discover in this record no excessive exercise of power by the court below which demands correction, especially at this late day, when the term of office has expired and the people have no contest and no cause for redress.

The proceedings are therefore affirmed.


author: Mr. Justice Sharswood

text:
    Loucheim Brothers versus Henszey, Adm’r, &c., of Gregory.
    1'. A creditor sued a debtor and obtained judgment by default under winch his goods were sold by the sheriff; within four months, proceedings in bankruptcy were commenced against the debtor, who was adjudged a bankrupt. These proceedings were not per sein fraud of the bankrupt law, although the creditor had reason to believe that the debtor was insolvent at the time.
    2. In an action against the marshal for the sale of goods claimed to be the plaintiff’s, although the uncontradicted evidence of plaintiff showed a clear case of fraud in fact, the question of fraud was for the jury.
    3. Actual collusion or fraud in fact is always for the jury.
    January 14th 1875.
    Before Agnew, C. J., Si-iarswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Certificate from the Court at Nisi Prius: No. 463, to January Term 1870.

      This was an action of trespass d. b. a., brought, April 2d 1870, by Henry S. Loucheim and Joseph Loucheim, trading as Loucheim Brothers, against Edgar M. Gregory, marshal of the United States for the Eastern District of Pennsylvania. The defendant having died, Joseph G. Henszey, his administrator, was substituted on the record as defendant.
    The action was for selling certain store goods (which the plaintiffs alleged belonged to them), as the property of Nathan Kahn, a bankrupt, under a warrant from the assignee in bankruptcy.
    On the 4th of December 1869, the plaintiffs brought suit against Kahn in the District Court of Philadelphia, and on the 27th of the same month judgment for $3677.83 was entered against the defendant for want of an affidavit of defence.
    On the same 4th of December a suit was brought against Kahn by Henry S. Loucheim, and on the 18th of the same month judgment for $2675.30 was entered against the defendant for want of an affidavit of defence.
    Executions were issued on these judgments and the goods sold by the sheriff January 5th 1870. After setting apart $300 to Kahn under the exemption law, the sheriff sold the remainder for $567.58; about half of them were bought directly by the plaintiffs, and nearly all the remainder were bought by them from the other purchasers of the goods at the sheriff’s sale.
    On the 25th of .January 1870, petitions of creditors were filed in the District Court of the United Statés, praying that Kahn might be declared a bankrupt. The acts of bankruptcy set out in the petitions were, that Kahn, being insolvent and with intent to defeat the bankrupt laws, had, in December 1869, suffered his property to be taken on legal process in'favor of H. S. Loucheim, his son-in-law, and Loucheim Brothers, and with intent to prefer them; and that he had transferred his goods to H. S. Loucheim to hinder, &e., his creditors, and to hinder, &c., the operation of the bankrupt laws.
    On the 25th of the same month, Kahn was adjudged a bankrupt, and a warrant of seizure issued to the marshal, who immediately seized the goods which were still in the store which Kahn had occupied up to the sheriff’s sale.
    The case was tried, February 7th 1872, before Thompson, C. J. 'The foregoing facts appeared on the trial, and much evidence was given tending to show actual fraud on the part of the plaintiffs.
    The following were plaintiff’s points :—
    1. That the judgment, execution and sheriff’s sale in the case -of Loucheim v. Kahn stands unrev.ersed, and the sale passed a good title to the purchaser.
    2. That the judgment, execution and sheriff’s sale in the case of Loucheim Brothers v. Kahn stands unreversed, and the sale passed a good title to the purchasers.

      3. Even if they could be inquired into, still, unless Kahn colluded with the plaintiffs, or either of them, to procure his property to be seized, or the debts for which the judgments were entered were fraudulent, the sheriff’s sale, under said execution, passed a good title to the purchasers, and it is for the jury to say whether there is any evidence of such collusion or fraud.
    The defendants’ 11th point was : That upon the whole evidence the verdict must be for the defendants.
    The court answered the plaintiffs’ points as follows :—
    1. This point is correct, unless the judgments, executions and sale were in fraud af the bankrupt law; that is to say, with a view to give or attain a preference in an insolvent debtor’s estate. In that case, even a sheriff’s sale may be void as against the parties to any such arrangement, if within four months before an adjudication in bankruptcy against the debtor at the suit of the assignee, on process from a bankrupt court.
    2. This point is affirmed, with the qualification just stated.
    3. To this point I assent, but must add, that if the plaintiffs were the active parties in procuring a preference by judgments and executions, knowing, or having reason to know he was insolvent, the preference would be in fraud of the bankrupt law, and a good title did not, as against it, pass to plaintiffs'by sheriff’s sale.
    The defendants’ point was answered :—
    “ I decline to charge as requested on this point. The facts are for the jury, and we trust they, by this time, see that the great question for their determination is, whether there was collusion between the plaintiffs and defendant Kahn, to give them a preference over other creditors, or that the plaintiffs knew when they took judgments, issued executions and sold his property, that he was insolvent, or had reason to believe he was. If the testimony makes this out to your satisfaction, the defendants will be entitled to your verdict; for this took place within four months before the first decree in bankruptcy. If this is not made out from the evidence, to your entire satisfaction, then you will find for the plaintiffs such an amount of damages as you think the goods sold by the sheriff were fairly worth.”
    The verdict was. for the defendants.
    The plaintiffs took a writ of error and assigned the answers to the points for error.
    6r. L. Grawford and W. L. Hirst, for the plaintiffs in error.—
    The judgments in this ease having been obtained in adversary proceedings, although fhe defendant permitted judgment to go by default were not in fraud of the bankrupt law : Wilson v. City Bank, 5 Bankr. Rep. 270; In re W. W. Kerr, 2 Id. 124.

      T. J. Diehl and S. Dickson, for defendants in error,
    cited Buchanan v. Smith, 16 Wall. 233 ; Wilson v. Bank, 17 Id. 473. The evidence of the plaintiffs themselves showed so clear a case of actual fraud, that the court should have given binding instructions to find for the defendants.
    January 21st 1875.
   Mr. Justice Sharswood

delivered the opinion of the court,

It was frankly conceded by the learned counsel who argued the cause for the defendant in error, that the ruling of the court in answer to the points of the plaintiffs, cannot be sustained. Our late lamented associate, Chief Justice Thompson, before whom this case was tried at Nisi Prius, was undoubtedly right in following the current of the decisions in the United States Circuit Court, but those decisions have since been reviewed in the Supreme Court of the United States, and a different rule established: Wilson v. City Bank, 17 Wall. 473.

It is now contended, however, that the uncontradicted evidence of the plaintiffs themselves showed a clear case of actual collusion, on which the court would have been justified in giving a binding direction to the jury. We cannot assent to this contention. Actual collusion, or, in other words, fraud in fact, is always a question for the jury, and however convincing may be the evidence on the subject, it would be to confound the province of the two tribunals for the court to assume the decision of it. Their only control over the matter is in the right to order a new trial, should a verdict be rendered clearly against the weight of the evidence.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Williams'

text:
    Fawcett et al. versus Fell et al.

    1. Several defendants cannot be joined in an action ex contractu, unless their liability be joint, which cannot be if the contract is several.
    2. A joint action cannot be maintained against the maker and endorser of a promissory note.
    January 18th 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the Court of Common Pleas of Delaware county: No. 123, to July Term 1873.
    This was an action of assumpsit, brought June 16th 1873, by Morris L. Fell and others, trading as Morris L. Fell h Co., against Emmor Fawcett and Daniel D. Fawcett. ■'
    The plaintiffs’ statement of claim as filed was as follows:—

      “ The following is a statement of the claim of the plaintiffs in the above-stated action. The plaintiffs sold and delivered to the defendant, Emmor Fawcett, goods, and the following is a copy of the charges contained in plaintiff’s books of original entry against the said Emmor Fawcett.”
    Then follows the statement of a book account, made up of items of charges and credits, showing a balance of $19.46 due. The account did not appear to be charged to any one; one of the items of credit was:
    “ 1873 April 3d. By note $291.25.”
    Then follows:
    “ The note credited April 3d 1873, being note of March 24th 1873, at thirty days, to the order of and endorsed by Daniel D. Fawcett, was not paid, but was protested in due form of law on April 26th 1873, for non-payment. The following is a copy of said note, being a statement of plaintiff’s claim against Daniel D. Fawcett.
    “ $291.25. Philadelphia, March 24th 1873.
    Thirty days after date, I promise to pay to the order of Daniel D. Fawcett, two hundred and ninety-one 25-100th dollars, without defalcation, value received. Payable at First National Bank of Chester.
    Emmor Fawcett.
    Endorsed : Daniel D. Fawcett.
    Costs of protest, $2.29.
    Ward & Broomall, Att’ys for Plaintiffs.”
    Judgment was entered July 12th 1873, for want of an affidavit of defence on the following order:—
    “ Enter judgment 'in the above case for the plaintiffs and against the defendants by default, for want of an affidavit of defence, and assess damages in the sum of $414.65, with interest thereon from the 12th day of July 1873.
    Ward & Broomall, Att’ys for Plaintiffs.”
    The defendants took a writ of error, and assigned for error:—
    Entering judgment; — because the copy filed was not such as entitled plaintiffs to judgment for want of an affidavit of defence, and because a joint action was brought to recover two several claims against the defendants.

      A. J. L. Shields, for plaintiffs in error.

      J. W. Q-oheen and W. Ward, for defendants in error.
    February 1st 1875.
   Mr. Justice Williams'

delivered the opinion of the court,

It is elementary law that there can be no recovery in an action ex contractu against several defendants, unless they are jointly liable, and there can be no joint liability if the contract is not joint but several. Here, as the plaintiff’s statement shows, the action was brought to recover the balance of a book account for goods sold and delivered to one of the defendants, and the amount of a promissory note, of which he was the maker, and the other defendant the endorser. Judgment was entered in favor of the plaintiffs against the defendants for want of an affidavit of defence, and for the aggregate amount of both claims. It is not pretended that both of the defendants were liable for the balance claimed to -be due for goods sold and delivered to the one, and if they were liable for the amount of the note it is clear that they were not jointly liable. The contract of the maker and that of the endorser of a promissory note with the endorsee is not a joint but a several undertaking, and a joint action thereon cannot be maintained against them. As the defendants were not jointly liable for the claims sued on, the misjoinder was fatal, and all the proceedings in the action, from the beginning to the end, were a budget of blunders. If the defendants had applied to the court below to set aside the judgment, they would, without doubt, have been saved the trouble of suing out this writ of error for its reversal.

Judgment reversed.