text:
    Diehl and Wife versus Emig et al.

    1. The contents of a deed lost, destroyed or suppressed may be established by parol evidence in ejectment, when its existence has first been proved.
    2. The effect of such proof is as strong in sustaining the title of the grantee as if the deed had been presented.
    3. All competent evidence for such purpose should be received, whether in logical sequence or not; especially if offered to be followed, by what would make out a complete case.
    4. When the testimony is in, the judge should inform the jury what is to be extracted from the body of it, in order to make out a good and solid case in law and what would be the effect of a failure.
    5. Some proof being given of a conveyance the acts and declarations of the grantor in accordance with it are evidence.
    6. Proof that a grantor requested a scrivener to draw a deed for certain land; that such deed had been prepared and given to the grantor; that he afterwards showed it signed by him and witnessed by one witness, with a magistrate’s certificate of acknowledgment; that he requested the person to whom he showed it to witness, which he did, was in the absence of countervailing evidence, prim& facie evidence of the execution of a lost deed including delivery.
    7. In such case the onus to prove non-delivery would be on those resisting the deed.
    8. Evidence admissible in odium spoliatoris.

    9. If the jury be convinced of the spoliation, it is their duty to infer everything in favor of the deed and against the spoiler.
    10. The existence of a lost deed requires clear and full proof.
    11. In an ejectment by a daughter grounded on a lost deed of gift from her deceased father, she and her husband would be witnesses as to what occurred since but not before his death, under the Act of April 9th 1870.
    May 4th 1870.
    Before Thompson, G. J., Read, Agnew and Sharswood, JJ.
    Error to tbe Court of Common Pleas of York county: No. 50, to May Term 1870.

      In the court below, George W. Diehl and Sarah his wife, in her right, brought an action of ejectment against William Moul. The writ was issued April 15th 1868, for a-tract of 185 acres of land, which had been the property of John Emig, Sr., deceased. After the bringing of the suit, John Emig, Jr., Valentine Emig and Eli Emig, executors of the decedent, were permitted to appear and defend as landlords.
    The plaintiff, Sarah Diehl, who was a daughter of the deceased, claimed that the land had been conveyed to her by the decedent, by a deed which she alleged was in the possession of the defendants, or had been lost. The defendants claimed under the will of the decedent, by which he directed the land in controversy to be sold.
    • The court below rejected the evidence offered by the plaintiff, as hereafter stated, and directed the jury to find for the defendants.
    The offers were: C. To prove by Philip Smyser, that in the year 1850, John Emig, Sr., requested him to draw a deed of conveyance from himself to his daughter Sarah for the land in dispute. That witness prepared such a deed and handed it to said Emig, who soon afterwards exhibited said deed to witness. That when said deed was so exhibited to witness it had been signed by said Emig and witnessed by one subscribing witness, and that there was also a certificate of acknowledgment duly signed, upon said deed. That said Emig then and there declared to witness that said deed was right, and requested witness to sign it as an additional subscribing witness, which he did, by writing his name under the words, “ signed sealed and delivered in presence of us.” That said Emig soon afterwards notified Moul, then the tenant on said farm, under said Emig, that he was no longer the owner of said farm, that it “ now belongs to Sarah and you must rent it from her.” To be followed by proof by other witnesses that said Emig, soon after the execution of said deed, declared that he was no more the owner of said farm', that “it now belongs to my daughter Sarah.” That soon after the execution of said deed, said John Emig, Sr., declared to other witnesses, in the presence of said Sarah, that she had given him all her writings to take care of for her as long as he lived ; and that he had put them in a tin box together with his own papers and had placed said box in the vaults of the York Bank for safety against fire. That after the marriage of said Sarah, said John Emig, Sr., was requested by his son Michael to give Sarah her writings; that he refused and said Sarah had given him her writings and money to take care of for her as long as he lived and he would do it. That at the death of said John Emig, Sr., (in February 1868), said tin box containing-a number of deeds and other valuable papers, was found in possession of his son John Emig, Jr.-, one of the defendants; and
      that said John Emig, Jr., as well as all the rest of said defendants have been duly notified by plaintiffs to produce said deed and also said tin box with all deeds and other papers found in said box immediately after the death of said John Emig, Sr., The foregoing is offered to the court only, for the purpose of showing the formal execution and delivery of said deed to his daughter Sarah ; under which deed the plaintiffs claim title to the lands described in the suit. To be followed by proof that from and after the time of the formal execution and delivery of said deed, said John Emig, Sr., acted as the agent of said Sarah in the leasing and management of said farm; in the collecting of the rents, issues and'profits thereof; and that from time to time he declared to numerous witnesses that the farm now belonged to her, that he was acting and managing it for her as her agent; that she was to “ pay nothing out” on said farm, because the rest of his children had been advanced in money and she had not. This latter part of the offer is not for the purpose of showing title or the creation of estate, but as corroborative evidence from which the jury may infer the actual delivery of said deed to the grantee, plaintiff in this suit.
    D. —To prove by Sarah Diehl, the plaintiff, that about the year 1850, while she and her father lived together on East Main street, in the borough of York, her father, John Emig, Sr., now deceased, gave her a paper writing which she then received, saying to her at the time that it was a deed for the farm claimed in this suit; that she put the paper away in her bureau and retained it there until after the fire which occurred near there, when she gave the paper back to him at his request for safe keeping — and in connection with the above, that the said witness is unable to read writing. This offer, made in connection with offer “ C.”, which has just been rejected by the Court, for the purpose of showing delivery of the deed, and from which the jury may infer the delivery of the deed written by Philip Smyser, Esq.
    E. —To prove by George W. Diehl, one of the plaintiffs, that he was present with his wife Sarah at the house of John Emig, Jr., about four weeks after the death of John Emig, Sr., who died at the house of said John Emig, Jr.; that there were then present all of the children and some of the other relatives of said decedent, who had assembled to hear the will of said decedent read; that the tin box mentioned in offer “ G.” was there produced by said John Emig, Jr., and was opened; that Michael Emig, one of the sons of said decedent, rose from his seat and advanced toward the table on which the said box was placed ; that thereupon John Emig, Jr., placed both hands over the said open box, and said aloud no one has a right to search in this box except us, for the will.” That Yalentine Emig, one of these defendants, was standing beside the table immediately before the witness, and took a package of deeds out of the said box, and took a new-looking deed out of the said package, opened and looked at its contents; that said witness standing immediately behind him, also looked into the said deed; that he saw.that it was a deed from John Emig, Sr., to Sarah Emig; that John Emig, Jr., then said sharply to Valentine Emig, “ put that paper back in the box, you’ll get them mixed up;” and that Valentine Emig then quickly folded up the deed and put it back in the box. That the said witness was present a few weeks afterwards when decedent’s effects were appraised at the same place, and saw the same box produced by said John Emig, Jr., and opened, and the papers contained therein fully examined, and that said deed from John Emig, Sr. to Sarah Emig, was not found among them. This evidence offered in connection with offers “ 0.” and “ D.,” for the purpose of accounting for the non-production of the deed under which the plaintiff claims title.
    F. — Portions of a deposition of Michael Emig, as follows:—
    “ I was present at my brother John’s, after father’s death, about four weeks, and saw this same tin box there. There were two letters on this box — the letter ‘ J.’ and letter ‘E.’ Valentine, John, Eli, Sarah, hrer husband, Diehl, Eli’s wife, John’s wife, and several others, John’s children or some of them, one of whom then read the will, were present. John brought the box out of another room. John opened the box. Valentine brought the key there and laid it on the piano. John hunted'in it for the will. Then I got up and was going to walk there to the box. Then John held his two hands over the box, and said, ‘ here nobody has any right to hunt, except we, for the will.’ Then I went back to my chair and sat down. Then John hunted in it, for the will. Then Valentine reached into the box too, and took out some papers— writings. When he drew it out, it was the deed, parchment it was, from George Emig to father for the place that father bought. So they said, I didn’t look in it. Valentine said so. He had it nearly open the whole width and looked in it a little while. Then Eli went there and said he should give it to him once, and he did. Then Eli sat down and looked in the deed, what he wanted to see. Then Valentine took out the same pack again, and pulled out a new paper and opened it pretty large, and still looked in it, but when Valentine was taking out the papers, John said he should let them be. Valentine then looked over it a little yet, and then folded it and put it back. Then John found the will. That new paper was folded like a deed. It was something larger than a sheet of foolscap, but he hadn’t it fully open. I say this was a new paper, because the others were old papers. I didn’t examine it or I could have told. These things were then put back in the box, and the will was then read. That I believe was all that there was there then. I was present afterwards at my brother John’s, when the appraisement was made. I don’t remember how long afterwards. The box was opened then in presence of the appraisers. John produced the box again. I don’t know whether one of the appraisers opened it or not, but I think John did. Then the appraisers searched through the papers and appraised what they had to appraise. I was about eight feet from the box, perhaps not quite so far, sitting back, while the appraisers were searching through the papers. I took sharp notice when they took that same pack of papers, and that new paper was not in any more. No person said anything that I heard at that time about that paper. Mr. Diehl was there. I can’t remember whether Mr. Diehl said anything at that time about that paper.”
    On cross-examination:—

      “ I was by when my brothers, and sister and I, and others were together when the will was read, and my brother John said, holding his hands over the box — ‘ nobody has a right but us to search for the will.’ The brothers were all there, Eli’s wife, John’s wife, Sarah, and some of John’s children, but I don’t know how many of them were there. They were all near enough to hear it. The box was locked again. I don’t know who held the key then. Valentine brought it there. When the appraisers were there, John brought the box out, but I don’t know who brought the key. I don’t know how many papers were in the pack that Valentine took out. I didn’t count them. The new paper I spoke of had no mark on it that I could know it again. I was too far off — I couldn’t see a letter.”
    The court instructed the jury to find for the defendant.
    The verdict was for the defendants.
    The plaintiffs took a writ of error, assigning for error the rejection of their offers and directing a verdict for the defendants.

      S. L. Fisher and W. C. Chapman, for plaintiffs in error.
    It is conceded that preliminary to proving the contents of a deed its existence must be proved: McReynolds v. McCord, 6 Watts 288. A party must begin somewhere. If the deed had been produced, proof by the subscribing witness would have permitted it to go to the jury: 1 Greenl. Ev. § 569. The existence of the deed and notice to the opposite party to produce it laid the foundation for secondary evidence of its contents: Milliken v. Barr, 7 Barr 23; 1 Greenl. Ev. § 560 and in note 3; Sharpe v. Lambe, 3 P. & D. 454; Smith v. Sleap, 1 C. & K. 48. Very slight evidence will raise the presumption that the instrument is in the opposite party’s possession: Henry v. Leigh, 3 Camp. 499; Harvey v. Michell, 2 M. & Rob. 366; Robb v. Starkie, 2 C. & K. 143. The slightest evidence tending to prove execution entitles the instrument to go to the jury: Hamsher v. Kline, 7 P. F. Smith 397; 2 Greenl. Ev., § 295. If a witness acknowledges attestation, primd facie what he has attested has taken place in his presence : Sigfried v. Levan, 6 S. & R. 308, and this is for the jury: Sheppard’s Touch. 54; Campbell v. Hall, Cowp. 204; Lesher v. Levan, 2 Dall. 96; Piggott v. Holloway, 1 Binn. 442; Critchfield v. Critchfield, 12 Harris 100. The deed might be returned to the grantor for any lawful purpose: Pringle v. Pringle, 9 P. F. Smith 281. After execution and delivery the deed could not be revoked: Worrall v. Jacob, 3 Merivale 256. The grantor’s declarations as to the plaintiffs’ title are evidence: Lingenfelter and Ritchey, 8 P. F. Smith 485; Reed v. Dickey, 1 Watts 152; Union Canal v. Young, 1 Whart. 410; Brown v. Bank of Chambersburg, 3 Barr 187. Less than express proof of delivery will suffice: Long v. Ramsey, 1 S. & R. 72; Powers v. McFerran, 2 Id. 44; Gibblehouse v. Stong, 3 Rawle 437; Bassler v. Niesly, 2 S. & R. 354; Moore v. Pearson, 6 W. & S. 51; Andrews v. Fleming, 2 Dall. 93; Weidman v. Kohr, 4 S. & R. 174; Hiester v. Laird, 1 W. & S. 249; Steward v. Richardson, 2 Yeates 89; Dow v. Jewell, 18 N. H. 340; Duffey v. Presb. Cong. of Bellefonte, 12 Wright 46. A court of error will inquire into the sufficiency of introductory evidence: Porter v. Wilson, 1 Harris 648; Lee v. Lee, 9 Barr 169. Everything is presumed in odium spoliatoris: Young v. Holmes, 1 Strange 70; McReynolds v. McCord, 6 Watts 290. The plaintiffs were witnesses as against Moul: Long v. Bailie, 4 S. & R. 222; Gibblehouse v. Stong, supra. Under the Act of 1869 Mrs. Diehl was competent to prove the loss of the deed.

      V. H. Keesey and J. L. Mayer, for defendants in error.
    The delivery of a deed is to be proved by parol, as part of the res gestee. Independently of the act done in the delivery of the deed, the parol evidence would not be admissible: Hale v. Hale, 8 Conn. Rep. 49; Hannah v. Swarner, 8 Watts 9; Van Amringe v. Morton, 4 Whart. 387. A deed may exist undelivered as a mere writing, referred to in a will, or otherwise, for a collateral purpose, without its having had any operation as a conveyance of title: Thompson v. Lloyd, 13 Wright 129; 3 Washburn on Real Prop. 270.
    Deeds made and retained to operate only at the death of the grantor are of a testamentary character, and may never take effect if the donor changes his mind: Stillwell v. Hubbard, 20 Wend. 44; Frederick’s Appeal, 2 P. F. Smith 338; Perry v. Scott, 1 Id. 119; Maynard v. Maynard, 10 Mass. Rep. 456. Slight evidence of delivery is available only when the deed is produced: Porter v. Wilson, 1 Harris 641.
    A son’s possession of land of the father, and exercising all the acts of ownership, does not show that the father has parted with his title: Ackerman v. Fisher, 7 P. F. Smith 459; Eckert v. Mace, 3 Penn. R. 365; Poorman v. Kilgore, 2 Casey 372; Harris v. Richey, 6 P. F. Smith 395; Hugus v. Walker, 2 Jones 173; Toe v. Toe, 3 Grant 74. In Brown v. Bank of Chambersburg, cited on tbe other side, the evidence was admitted because the declarations were written and made in the usual course of business: Welsh v. Barrett, 15 Mass. R. 380; Welsh v. Langfield, 16 M. & W. 516, and note in 1 Smith’s L. C. 394. Evidence of loss is to the court alone: Jackson v. Erier, 16 Johns. 195; Starkie’s Ev. 531, in note by Sharswood. Requiring the best evidence is peculiarly strict in case of a lost deed: Kerns v. Swope, 2 Watts 79; Metcalf v. Benthuysen, 3 Comstock 424; Hale v. Hills, 8 Conn. 42. The deed alleged was a gift, and should require as much proof at least as a deed for a valuable consideration: Pringle v. Pringle, 9 P. F. Smith 281; Erederick’s Appeal, 2 Id. 342; Kreider v. Boyer, 10 Watts 54. The plaintiff under such deed should prove that it was not revocable: Coutts v. Ackworth, Law Rep. 8 Eq., July 1869, p. 558.
    [During the argument Sharswood, J., referred to Blight v. Shenk, 10 Barr 290.]
   The opinion of the court was delivered, May 12th 1870, by

Thompson, C. J.

It is elementary doctrine that the contents of a deed of conveyance lost, destroyed or suppressed, may be established by parol evidence in an action of ejectment, when its existence as a valid instrument has first been satisfactorily proved: McReynolds v. McCord, 6 Wright 288. The effect of such proof is of equal force in sustaining the title of the grantee as if the deed itself had been presented. This is so ex necessitate rei, otherwise titles might be defeated by fraud or accident, without fault on part of the vendee, and in disregard of the consideration for the conveyance. A rule like this would he so obviously unjust that it could not exist in any civilized land. A near equivalent of such a rule, would be any rule which should render such proof impracticable by technical requirements,or to the order of proof; such for instance as the requirement of perfect proof in the theory of a 'first step taken before a second should be attempted. All competent evidence in such a case should be received when offered, whether in logical sequence or not, especially if offered to be followed by what would make out a complete case if believed. When the testimony is in, it is the duty of the judge to inform the jury what the law requires to be extracted from the body of it in order to make out a good and valid case in law, and what effect a failure to do so would have. A party must begin with his proof somewhere; and where, is less important a great deal than its completeness. A judge will look at the latter with great care as being of the very essence of the contest, and at the former as a desirable result rather than an essential one.

We think the first offer of the plaintiffs below should have been received. It was not only orderly but essential. It went to prove tbe drawing of a deed by a scrivener at tbe request of the grantor, John Emig, Sr., for the land in question to his daughter Sarah, and to establish its execution and delivery to her. The witness saw it after he had drawn it as requested; and it ,was completely executed by the grantor’s signature in the presence of a witness, and was duly acknowledged before a magistrate. It was produced by the grantor, it is trfle, but simply to obtain what he supposed was necessary in order to make it valid as a complete conveyance. The signatures of the witnesses, and. more especially the official certificate of the magistrate, attested that the deed was executed and had been delivered. “ Signed, sealed and delivered,” was the solemn statement of the grantor, formally acknowledged before a magistrate,and admitted to the witnesses. In Blight v. Schenk, 10 Barr 285, it was held that such circumstances, unaccompanied by any fact which would countervail their effect, would establish a prirná, facie case of due execution, including delivery, and call upon the other side to rebut their effect by proof of non-delivery. This view was overlooked by the learned judge below; and not only were these facts thought to be no evidence of delivery, but the accompanying proffered facts set forth in the offer were held to be no aids in the establishment of the material fact. The auxiliary proof, as it may be called, not only strengthens the presumption of delivery of the deed arising from its acknowledgment, but was itstelf strengthened by that fact. It was offered to show acts and declarations of the grantor, in and out of the presence of his daughter, in exact accordance with the effect of his conveyance, and furthermore how he happened to have possession of the deed. He declared the land hers — told his tenant in effect to attorn to her; told him and others that she owned the land; and he acted as her agent in leasing the farm and collecting rents for her. He took charge of her papers and money to keep for her, as he declared, and at her request, during her life. We are to consider all this as if it had been proved, because in its identity and unimpeached form the court refused to hear it, on the ground that it was inherently insufficient to tend to prove an execution and delivery of the deed. We discharge our duty in this review by simply holding, as we do, that all this was competent testimony, and, if believed, important evidence for the plaintiffs for the purpose for which it was offered, without applying to the features of the case in hand, or to any special features that may be in it — ■ that will be done by the court and jury, aided by counsel when it is re-tried. This assignment of error is therefore sustained.

That portion of this offer containing the facts about the tin box, and the declaration about its containing his daughter’s writings and money, and the acts and doings of the executors in regard to it, together with the offer of testimony contained in the third bill of exceptions, were undoubtedly evidence not only as being the acts and declarations of the executors to whom the box and its contents came, and the parties to the action, as raising some grounds to infer fraudulent management, and to suppress the truth, but also to charge spoliation of the deed in question upon them, especially as the offer was also to show that they refused to produce the box and its contents as it came into their hands on notice to do so. If a jury should be convinced of the spoliation, it would he their duty to infer anything in favor of the deed as against the spoiler. I do not limit the testimony to this view alone. It may be important in other aspects ; certain it is it ought to have been received. As George Diehl, the husband of the grantee in the deed, will probably be a competent witness for the plaintiff in another trial, under the provisions of the Act of 1870, to prove what is proposed to be proved by him on the last trial, the scope of these offers will he more distinctly apparent. We think the fourth assignment of error is also sustained, independently of this consideration.

There seemed to be some appearance of an idea in the mind of the court below,that the ground of the controversy assimilated itself to a case of parol sale, and hence declarations of the grantee could not be given in evidence. The evidence was not to prove a grant or sale by parol, but the existence of a deed containing the terms of a grant. The factum of a grant was not proposed to be proved — but the instrument containing it, and then the contents would show the grant, and the case would not be within the Statute of Frauds and Perjuries. The existence and loss of the deed was a fact in pais, to be proved like any other fact; of course its nature would require clear and full proof of the fact, but this would not exclude the declarations of the grantor, especially when corroborated by actual proof of the existence of the deed at one time.

We are of opinion that the other bills of exceptions contain no error as to the rejection of the testimony of the plaintiffs below. As the law stood the husband was not a competent witness, although he will be, we think, under the act above referred to, to prove anything occurring since the decease of the decedent, and that was what was proposed to be proved by him. The wife was incompetent under the Act of 1869, and will he under the Act of 1870, to prove what was proposed to be proved by her at the last trial. These errors are therefore not sustained; but the judgment must be reversed for the reasons given above.

Judgment reversed, and venire de novo awarded.


source: Caselaw Access Project

author: Agnew, J.

license: Public Domain

text:
    Sheffer versus Montgomery & Brough.
    1. Montgomery consigned wheat to Frick, who accepted a draft against it payable April 9th. At the request of Sheffer, knowing the wheat to be Montgomery’s, Frick sold it and lent the proceeds to Sheffer to be returned April 8th to meet the draft; the draft not being paid Montgomery could recover for the wheat against Sheffer, notwithstanding Frick owed Sheffer.
    2. The proceeds of the wheat belonged to Montgomery until Frick should pay the draft.
    3. The wheat was Montgomery’s as between him and Frick.
    4. The acceptance of Frick and. his guaranty of the sale did not make him owner of the wheat.
    5. Payment only could give Frick the ownership.
    6. Sheffer had no title to the draft or the money, and could not ask a restoration of it conditional to the payment of the money, although Frick might have asked it.
    May 4th 1870.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of York county: No. 15, to May Term 1870.
    This was an action of assumpsit to April Term 1866, brought by John Montgomery and John A. Brough, trading as Montgomery & Brough, against Emanuel Sheffer.
    The plaintiffs did business in Chambersburg, Pennsylvania, and sent a quantity of wheat for sale to E. A. Frick & Co., commission merchants in Baltimore. About the time of the consignment the plaintiffs drew on Frick against the wheat for $2000; the draft was dated March 7th 1866, payable in 30 days after date and was accepted by Frick on the 9 th. About the last of March, Frick & Co. sold the wheat and at the same time the defendants obtained from them the proceeds. The plaintiffs alleged that the defendant, knowing the wheat was the plaintiffs’, induced Frick & Co. to sell it, and give him the money, under a promise that he would return it on the 8th of April, previously to the maturity of the draft, and that therefore he was liable to the plaintiffs for the amount of the proceeds of the wheat, the draft not having been paid by Frick & Co.
    On the trial, February 15th 1869, before Fisher, P. J., the plaintiffs gave evidence that the defendant called on Frick & Co., to let him have some money to make his bank account good until after the 1st of April, when the money should be returned; when the defendant called, the wheat of plaintiffs was on the platform of Frick’s store; defendant asked Frick to sell it so as to let him have the money; he was informed that it was plaintiffs’ wheat; it was agreed to sell it and lend the money to defendant, to be returned after the 1st of April to meet the draft of the plaintiffs; after the wheat should be sold the money was to be handed to J. M. Foust, who was said to be the agent of the defendant. The wheat was sold by Frick & Co., for $1718.16 and the money paid to Foust, who gave the following receipt:
    “ Received, Baltimore, March 29th 1866, of E. A. Frick & Co., Seventeen Hundred and Eighteen Dollars and Sixteen Cents, the amount of 731 8-60 Bus. Montgomery & Brough Wheat to be returned April 8th 1866.
    $1718.16. J. R. Foust, for
    E. Sheeeer.”
    E. A. Frick testified that the defendant requested him to lend the money received from plaintiffs’ wheat; that he consented to do so on condition that it should be returned on the 8th of April 1866 ; that he did lend that money and paid it to Foust for the defendant: Foust was the defendant’s car agent. Foust testified that he received $1718.16 to hand to the defendant; that at the same time he'received other money from Frick, amounting in the whole, including the proceeds of plaintiffs’ wheat, to about $2300; that he paid all the money to the defendant. There was other evidence corroborative of the foregoing. There was evidence of the insolvency of Frick & Co. By cross-examination of Frick, the defendant proved that at the time the defendant received the monej'', the defendant was president of the Glen Rock Bank, and that Frick then owed the bank $2800. Frick could not say whether he sent the money to the defendant as an individual or as president of the bank and for the use of the bank.
    The defendant gave evidence that on the 3d of March 1866, the bank held a check of Frick & Co., which they sent to Baltimore for collection; that it was returned unpaid, and on the 30th of March, the defendant paid to the cashier $2800 to pay the check; he gave evidence also, that on the 29th of March, there was a balance on the books of the bank in his favor; had been for some time before, and was afterwards.
    The defendant further gave evidence that by the invariable custom of commission merchants they were responsible for sales, and could sell without consulting the owner; that they guarantied their sales, and received a commission for it.
    The plaintiffs requested the court to charge:—
    1. “ That if the jury believe from the evidence that the plaintiffs had sent the wheat to E. A. Frick & Co. for sale, and that said wheat remained at their warehouse unsold in the latter part of March 1866, and that E. A. Frick & Co. were insolvent at the time, and that defendant, Sheffer, went there and was informed by E. A. Frick & Co. that the wheat belonged to plaintiffs, and that he, said defendant, influenced said E. A. Frick & Co. to sell said wheat of plaintiffs with the object of allowing him, said defendant, to use the proceeds to make his account good over the 1st of April, and that said E. A. Frick & Co., through the influence of defendant, as aforesaid, did sell the wheat, and deposited with, or loaned to, said defendant the proceeds thereof, under a promise to return the said proceeds, then said defendant received said money, which was trust funds, malá fide, in other words, with notice of the trust, and the plaintiffs are entitled to recover in this suit the amount of the proceeds' of said wheat, so loaned to Sheffer, with interest.
    2. “ If the jury believe from the evidence that defendant did influence E. A. Frick & Co. to sell, the wheat of plaintiffs, and that E. A. Frick & Co. were insolvent at the time, with the object of getting the use of the money for his (defendant’s) own purposes and advantage, and that said E. A. Frick & Co. did sell said wheat, and deposited the money, the proceeds thereof, with said defendant at his instance and through his influence as aforesaid, and under promise to return it, then said defendant received said fund maid fide from E. A. Frick & Co., trustees, and the plaintiffs are entitled to recover.
    3. “ That if the jury believe from the evidence thjat Sheffer induced E. A. Frick & Co. to sell the wheat sent to them, as commission merchants, for sale by Montgomery & Brough, in order that he, the defendant, could have the use of the money for several days for his own benefit and advantage, and under an arrangement with said E. A. Frick & Co. that he would receive it as the money of plaintiffs, and return it in time to enable E. A. Frick & Co. to meet the draft of plaintiffs on them, and by them accepted on account, as defendant alleges, of this same lot of wheat, and that said defendant did receive said sum of money under the facts and arrangements above mentioned, and did riot repay it as promised, but, in violation of said arrangement to repay, fraudulently applied it to other purposes, equity estops him from setting up the defence that E. A. Frick & Co. were the owners of the wheat and money by reason of an acceptance made by them, and that, therefore, plaintiff is entitled to recover in this action-.
    4. “ That the lien or qualified property a commission merchant has in or to property sent to him for sale, by reason of advances or the acceptance of a draft, is for the benefit of the commission merchant, and may be waived, and when waived by him, a -third person dealing with him, and having full knowledge of the waiver, cannot successfully set up any defence which involves a violation of such waiver. ,
    5. “ That if the jury believe from the evidence that E. A. Frick & Co. were insolvent at the time of the transaction in reference to the wheat and money, as detailed by the witnesses, and that E. A. Frick & Co. did not claim any lien, right or property in the grain sent to them by Montgomery & Brough, by reason of their acceptance of a draft drawn on them by Montgomery & Brough, and if the defendant was informed of the fact that the grain belonged to Montgomery & Brongb, and procured it to be sold, and received tbe money under the circumstances mentioned by witnesses, then he is liable to the plaintiff in this action.
    The defendant asked the court to charge :—
    2. “ That if E. A. Erick & Co., on the 29th of March 1866, had theretofore accepted the draft of said Montgomery & Brough, for $2000, at thirty days, not then expired, drawn against their consignment of wheat, to be sold by said E. A. Erick & Co., the said Erick & Co. had a right to sell said wheat and make such disposition of the proceeds as they thought proper, and if the amount of said proceeds was handed over to the defendant and applied by him in part payment of the debt of E. A. Erick & Co. to the Glen Rock Bank, to a larger amount than said draft, or to take up paper due said bank by said firm, which he still holds, of a larger amount than said money, the plaintiffs in this suit cannot interfere with the transaction and oblige the defendant to pay the like amount of money to them.
    4. “ That if E. A. Erick & Co., before the 29th of March 1866, had accepted the draft of said plaintiffs for $2000, at thirty days, not then expired, drawn against the wheat consigned to them for sale, and the said E. A. Erick & Co. sold said wheat on the said day, they had a right to make any disposition of it they chose, and if even they lent the money to the defendant, the plaintiffs cannot, by seeking to recover on their supposed title to 1 the wheat, in disaffirmance of the acts of E. A. Erick & Co., maintain this suit against this defendant.
    5. “ That a principal cannot, in any case, in attempting to follow the proceeds of his property, in the shape of money, claim it from any person unless he can show that such person had it at the time suit was brought, and had received it unmingled with other moneys; and if the jury believe that any proceeds of the wheat spoken of in this case were handed over by E. A. Erick & Co. to J. R. Eoust mixed with other money paid him at the time, that he (Foust) handed over all he got from E. A. Erick & Co., and from other persons in a general mass of notes to the defendant, and he, the defendant, parted with it before this suit was brought, in whatever capacity he acted in the matter, the plaintiff cannot recover.
    6. “ That if E. A. Erick & Co., on the 29th of March 1866, had, theretofore, accepted the draft of said Montgomery & Brough for $2000, at thirty days, not then expired, drawn against their consignment of wheat to be sold by said E. A. Erick & Co., the said Frick & Co. had a right to sell said wheat and make such disposition of the proceeds as they thought proper, and if the amount of proceeds were, as alleged, lent merely to the defendant' on time by E. A. Erick & Co., the plaintiffs if they could, in any view, be placed in a position in this suit to maintain the action against this defendant, must do it subject to tbe right of tbe defendant to set off against E. A. Frick & Co.
    Tbe court affirmed all the plaintiffs’ points, “ if tbe facts as presented are true, and found to be so by tbe jury from tbe evidence.”
    In answer to tbe defendants’ points tbe judge said:—
    “ Tbe law as stated in tbis point as a general proposition is correct. But if Frick & Co. sold the wheat of plaintiffs under tbe circumstances stated in the point and with tbe knowledge that tbe money in question was tbe proceeds of plaintiffs’ grain, and borrowed it from Frick & Co., as plaintiffs’ money, and agreed to return it for plaintiffs’ use, and did not, then tbe legal propositions stated in tbe point are not applicable to such a state of facts.
    “ 4. We cannot answer tbis point in tbe affirmative.

      “ 5. We cannot answer tbis point .in tbe affirmative as written. Tbe law as stated in it is correctly stated. But it is not applicable to tbis case if tbe defendant knew tbe money in question was tbe proceeds of the-plaintiffs’ wheat, and was sold at tbe defendant’s instance to enable him, tbe defendant, to get tbe proceeds, and be received it as tbe plaintiffs’ fund and promised to return it to enable Frick & Co., to meet plaintiffs’ draft and did not repay it as promised.
    “6. We cannot answer tbis point in tbe affirmative as written.

      “ Tbe law as stated in it is correctly stated, but it is not applicable to this case, if the defendants knew tbe money was tbe proceeds of plaintiffs’ wheat and was sold at defendant’s instance to enable him to get tbe proceeds, and be received it as tbe plaintiffs’ funds and promised to return it to enable Frick & Co., to meet plaintiffs’ draft and did not repay it as promised, tbe defendant cannot, if such be tbe facts of the case, set off tbe money paid by him to tbe Glen Rock Bank, or tbe check of Frick & Co., paid by him, to defeat tbe plaintiffs’ recovery in tbis case.”
    Tbe verdict .was for the plaintiffs for $2013.09.
    Tbe defendant took a writ of error, and assigned for error tbe answers, as above given, to tbe points of tbe respective parties.

      J. L. Mayer (with whom was J. Evans), for plaintiff in error.
    Commission merchants are purchasers to tbe extent of their advances: Vail v. Durant, 7 Allen 408; Haille v. Smith, 1 Bos. & Puller 568; Halbrook v. Wright, 34 Wend. 169; Smedly v. Williams, 1 Parsons 365; Hall v. Hinks, 21 Md. 416; Rex v. Lee, 6 Price 369; Gillespie v. Mather, 10 Barr 28; Baugh v. Kirkpatrick, 4 P. F. Smith 84. A factor having made advances on a consignment, after sale may set off with the assent of tbe purchaser a debt due to him: Story on Agency, § 408; Hudson v. Granger, 5 Barn. & Ald. 27; Brown v. McGran, 14 Peters 495; Schumacher v. Eby, 12 Harris 521; Hopkins v. Beebe, 2 Casey 85; Grove v. Dubois, 1 T. R. 112. If factors have guarantied the sale, the note of the purchaser would be their own: W. Boylston Man. Co. v. Searle, 15 Pick. 229. If the plaintiffs affirm the sending of the money by Erick they are subject to the set-off against Frick: Smith v. Hodson, 4 T. R. 211; Huntingdon v. Knox, 7 Cushman 371; Rutter v. Gable, 1 W. & S. 108. If the money belonged to Erick, there was no consideration to the plaintiffs from the defendant: Campbell v. Lacock, 4 Wright 451; Cummings v. Klapp, 5 W. & S. 511; Ramsdale v. Horton, 3 Barr 330. The plaintiffs could not have recovered from Erick without surrendering the acceptance: King v. Kelley, 1 P. F. Smith 36; Hays v. M’Clurg, 4 Watts 452; Parsons on Bills 150, note.

      V. K. Keesey (with whom was A. N. Green), for defendants in error.
    The claim of a factor for advances is a lien only, not a title to the property: Act of April 14th 1834, § 1, Pamph. L. 375, Purd. 453, pl. 1; Newbold v. Wright, 4 Rawle 211. The fund can be followed: Farmers’ and M. Bank v. King, 7 P. F. Smith 202; Story’s Eq., § 1259; Pennell v. Deffell, 23 Eng. Law & Eq. 460; Frazier v. Erie Bank, 8 W. & S. 18; Stair v. The York National Bank, 5 P. F. Smith 364. The defendant’s promise to repay based on the money being from the plaintiffs’ goods was a consideration: Campbell v. Lacock, 4 Wright 451; Hind v. Holdship, 2 Watts 104; Beers v. Robinson, 9 Barr 229; Vincent v. Watson, 6 Harris 100. The non-surrender of the draft could be remedied in the Supreme Court by directing a refunding bond; besides this objection should have been taken at an earlier stage: Logan v. Richardson, 1 Barr 372; Shaw v. Bayard, 4 Id. 257; Wood v. Davidson, 2 Rawle 52; Patterson v. Nichol, 6 Watts 382; Baughman v. Kunkle, 8 Id. 484.
   The opinion of the court was delivered, May 12th 1870, by

Agnew, J.

The clear and uncontradicted evidence in this case shows that the defendant received the sum of $1718.16, the proceeds of the wheat of the plaintiffs in the hands of E. A. Frick & Co., for sale on account of the plaintiffs, with a full knowledge of this fact; that indeed the wheat was sold by Erick & Co., at the request of the defendant in order to enable him to have the use of the money of the plaintiffs for a few days; and that he promised to return the same on the 8th of April following, in order to enable Erick & Co. to pay a draft of the plaintiffs dated 7th March 1866, at 30 days for $2000, and falling due April 9th 1866. The money clearly belonged to the plaintiffs until Erick & Co. paid their draft, a fact within the defendant’s power to prove by the production of the draft on a subpoena duces tecum to Erick & Co., or by other competent evidence. The reason of this is obvious. Erick & Co. were factors only for the sale of the wheat. As between them and the plaintiffs the property in the wheat was in the latter, whatever might be the rights of the former as factors, as to third persons. It is said they sold upon credit and guarantied the sales. But clearly neither their guaranty nor their acceptance of the drafts ipso facto makes them owners of the wheat as against their principals; Nothing but payment cawits equivalent could effect this. The draft was long overdue at the trial, and there was no evidence that it had been negotiated or that demand had been made by any third party of Erick &' Co. for its payment. The utmost presumption therefore was that the draft remained in the hands of the plaintiffs unpaid. This was not an action against Erick & Co., for the proceeds of the wheat, and a notice of special matter requiring the production of the draft by the plaintiffs as a condition in equity before recovery; but the action was against a third party, having no title either to the draft or the money, but bound to restore it to the owners, as money had and received to their use. The defendant could not ask a restoration of the draft as a condition precedent to a. verdict of recovery, but could only show payment by Erick & Co. of the price of the wheat to defeat the plaintiffs’ action. It was the money of the plaintiffs which he received and expressly promised to refund to meet the draft, and he was bound to pay it to the owner of the wheat, unless he could show that by the subsequent act of the plaintiffs they had been satisfied for the wheat, thus carrying over to Erick & Co. the right to the proceeds. In the absence of all evidence therefore that Erick & Co. had paid the draft, there could be no ground for averring a change in the property of the wheat or its proceeds from the plaintiffs to Erick & Co. The defendant had really no defence under the evidence, which was all on one side. It was of no consequence how Sheffer, the defendant, used the money; whether he paid a debt of Erick & Co. with it or not. He knew that he had received the money from the trustee and factor of the plaintiffs, whose wheat was sold at his own instance to enable him to get the money. He knew therefore that it was not the money of Erick & Co., and that he instigated them to do an illegal act, and to divert the money from their principals. This disposes of all of the assignments of error, for they all converge upon the same point, and the judgment of the court below must be affirmed. .

Judgment affirmed.


text:
    Bancord et al. versus Parker, Administrator.
    1. An attachment execution was issued in 1856, and levied on defendant’s interest in a widow’s share payable at her death. She died in 1869. On the 20th of September the defendant and garnishees pleaded “ nulla bona.” On the trial October 30th, they pleaded the defendant’s right under the Exemption Laws. Held, that the claim was too late.
    2. The sheriff in an attachment execution has nothing to do with levying the debt. He merely serves the process and warns the garnishee to pay over.
    3. The defendant may notify him of his claim for exemption at the service, of which notice he would be bound to make return.
    4. If the defendant be not served he may make his claim for exemption when he appears.
    5. The plea of “ nulla bona” íb a denial of the debt, calculated to mislead the plaintiff and compel him to prepare for trial on that plea.
    6. A claim for exemption filed with the plea would have shown to the plaintiff a reason for saving the expense of preparation.
    7. The expense is not merely the costs, but the expense of counsel and the trouble.
    May 9th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Franlclin county: No. 39, to May Term 1870.
    On the 13th of September 1856, Henry, Sites issued an attachment execution on a judgment for $800 in his favor against Jacob Bancord. The sheriff was directed to levy the attachment on debts, &c., in the hands of E. Emerson and others. The sheriff returned that he had served the writ on the garnishees. It did not appear that the defendant had been served.
    Bancord was one of the heirs of Jacob Bancord, Sr., deceased. By his will he directed his land to be sold, subject to a life interest for his widow, which was to be divided at her death amongst eleven heirs, Jacob, the defendant, being one. The land was sold by the executors and conveyed on the 28th of March 1854, subject to the widow’s interest, the garnishees in this suit being the purchasers. Sites died about the 17th of April 1857. The widow of Jacob Bancord, Sr., died January 8th 1869. On the 20th of September 1869 the defendant and the garnishees pleaded nulla bona. On the 29th of October, the death of the plaintiff was suggested, and Maria Parker, his administratrix, substituted. On the same day the trial of the cause commenced.
    On the 30th, the following special plea was filed :—
    “And the said Jacob Bancord, the above-named defendant, and the said garnishees, summoned in the above-stated attachment execution, for a further plea in this behalf say, that the said writ cannot be maintained, because they say that the moneys attached by the sheriff on said writ, in the hands of the said garnishees, are not liable thereto, but ought to be exempt from the said attachment under the Act of Assembly of this Commonwealth, commonly called the Three Hundred Hollar Law, the said Jacob Bancord claiming the benefit of the said law, and electing to take the moneys attached under the provisipns thereof, and being entitled, as he avers, to the benefit thereof; and this the said defendant and garnishees are ready to verify.”
    It was admitted that the amount in the hands of the garnishees due the defendant was $234.21.
    The court (King, P. J.) charged that the claim for the exemption was made too late, and that the verdict should be for the plaintiff for the amount admitted to be in the hands of the garnishees. The verdict was accordingly for the plaintiff for $234.21.
    The defendant and garnishees to«k out a writ of error, and assigned the instruction of the court for error.

      J. McD. Sharpe, for plaintiffs in error,
    cited the exemption acts: Strouse v. Becker, 2 Wright 190; s. c. 8 Id. 206; Zimmerman v. Briner, 14 Id. 535; Bair v. Steinman, 2 P. F. Smith 423; Voglesong v. Beltzhoover, 9 Id. 57; Harrison’s Appeal, 12 Casey 130; Billmeyer v. Evans, 4 Wright 324; Breitenbach v. Bush, 8 Id. 313; Waters v. Bates, Id. 474; Drexel v. Miller, 13 Id. 246; Spencer’s Appeal, 3 Casey 218; Baldy’s Appeal, 4 Wright 328.

      Clarke & Garver, for defendants in error,
    cited Strouse v. Becker, 8 Wright 206; Zimmerman v. Briner, 14 Id. 535; Bair v. Steinman, 2 P. F. Smith 423; Skidmore v. Bradford, 4 Barr 300; Lea v. Hopkins, 7 Id. 492; Fox v. Reed, 3 Grant 97; Lorenz v. King, 2 Wright 93; McCormac v. Hancock, 2 Barr 310; Read v. Penrose, 2 Grant 485.
   The opinion of the court was delivered, May 19th 1870, by

Agnew, J.

This case is ruled by Strouse’s Ex’rs. v. Becker, 8 Wright 206, Zimmerman v. Briner, 14 Id. 535, and Bair v. Stein-man, 2 P. F. Smith 423, on the ground that the election to retain the debt attached came too late after the jury was sworn upon the issue of nulla hona entered forty days before the trial. Those were cases of attachment in execution, and therefore directly in point. To them we may add Hammer v. Freese, 7 Harris 255, and Rogers v. Waterman, 1 Casey 182, on the necessity of diligence on part of the defendant in making his claim for the exemption. But it is said the defendant had no one to whom he could give notice, and therefore the ease does not fall within the spirit of these decisions. This is a mistake. An attachment execution does not resemble a fi. fa. where the sheriff is required to make sale of the property, and notice to him is necessary to prevent a sale, and cause a valuation to be made by appraisers under tbe Act of 1849. The sheriff in an attachment execution has nothing to do with levying the debt, he merely serves the process and warns the garnishee not to pay over. Doubtless the 'defendant may notify him of the claim for exemption at the time of service, of which notice the officer would be bound to make a return; but if he be not served, as in this case, there is nothing to prevent him from filing his claim for the exemption when he appears. He appeared here on the 20th September 1869 and pleaded nulla bona. Now this plea was a direct denial of the existence of the debt, and was calculated to mislead the plaintiff, and compel her to prepare for a trial on that plea. But a claim for exemption filed with the plea would have shown to the plaintiff a reason for saving the expense of preparation. It is not the costs only which she might have saved, but the trouble and the expense of counsel employed to try the cause. The death of the plaintiff was no excuse. If the defendant could appear and plead, he could also file his claim with his plea; besides, inquiry would have soon enabled him to find out the person representing the plaintiff’s estate. It was negligence, therefore, to wait until the 30th of October, after the cause had been notified for trial and the jury sworn.

Judgment affirmed.


author: Sharswood, J.

text:
    Oller versus Bonebrake.
    1. In a question of advancement before an auditor, one of the parties resisted the admission of a book as the “ family book.” On an issue to try whether this was the “ family book,” the same party offered the book in evidence. Meld, that he was not estopped on account of objecting to it before the auditor.
    2. Declarations of a parent contemporaneous with entries of advancements made in his book are evidence.
    3. Declarations of a parent to change a debt into an advancement are not admissible.
    4. Things shown once to have existed are presumed to continue in the same state till the contrary be established.
    5. Where a parent has made large advancements, the presumption is that he continued to intend that on his death intestate they should be brought into the account to divide his estate equally.
    6. Entries of advancements were made in a parent’s book, an inquest found that he had been lunatic five years before the finding. When the book came into his committee’s hands, the entries were found to be cancelled. There was no presumption of law, as to whether, the cancellation had been made before or after the lunacy.
    7. The burden was on those resisting the advancements, to show a change of intention of the parent when he was sane.
    8. Positive and direct evidence for this purpose was not necessary, and the question was for the jury.
    9. Upon awarding a feigned issue, the court in allowing interested persons to testify may restrict the points on which they may testify.

      May 9th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ.
    Error to the Court of Common Pleas of Franklin county: No. 87, to May Term 1869.
    This was a feigned issue directed, January 16th 1869, by the Orphans’ Court to the Court of Common Pleas, to find facts relating to the distribution of the estate of John Hollinger, deceased.
    The decedent had been married twice; his children by his first wife were Samuel Gr.; Mary, wife of John Myers; Ann, wife of John S. Oiler; Daniel; Margaret, wife of Jacob Hummel, who died childless in the lifetime of her father; and Christian, another son who left home and had not been heard from for 18 or 20 years and was supposed to be dead. Christian was at that time a single man. In February 1860, John Hollinger married his second wife, and had by her a son Lewis, who was born sixteen or seventeen' days after the marriage of the parents. In January 1864, an inquest was awarded to inquire of the lunacy of John Hollinger. The inquest found him a lunatic and that the lunacy had existed for five years prior to the time of the inquest. John S. Oiler and Samuel Gr. Hollinger were appointed his committee. Hollinger died December 6th 1866, intestate.
    John S. Oiler, his administrator, &e., filed his account, which was confirmed March 26th 1868, by which there appeared to be a balance of $5513.35 for distribution. George Eyster, Esq., was appointed auditor to make distribution.
    In the course of the hearings before the auditor, a small book composed of a sheet of writing paper, folded in book form, was produced by the administrators under a subpoena duces tecum. This book contained charges against the six children of his first marriage. Through all these charges, except that against Christian, were drawn diagonal black lines as of cancellation. Whether this book was the “ family book” of the decedent, was the contention before the auditor; the guardian insisting that it was not. Before the auditor made his report, Nicholas Bonebrake, the guardian of Lewis Hollinger, asked the court to direct an issue between him as guardian, &e., of Lewis Hollinger, plaintiff, and John S. Oiler, administrator of John Hollinger, deceased, defendant, to try whether this book was the “family book” of the decedent. The court directed the issue in that form and further ordered, “ that J. S. Oiler and Samuel G. Hollinger be examined as witnesses in relation to the cancellation of the said charges in the family book of John Hollinger.” The declaration in the issue contained four counts, averring that the book was the “family book,” averring the charges against each child separately in the several counts “ as advancements to them, respectively, on account of their shares of his estate, and to be accounted for at his decease, and that the entries and charges in said book were accurate and true.”

      The issue was tried February 1st 1869, before Rowe, J.
    The plaintiff proved that the entries in the book were in the handwriting of the decedent; they also proved that Christian had left home to go with the army to Mexico in 1846 or 1847; had been heard of as being in California in 1856 or 1857, and had not been heard of since.
    The. entries in the book were in several items in "each case except Christian, which was but one, and were from 1845 to 1856. The amount against Mary Myers was $2369; against Ann Oiler $2335; against Daniel $2422; against Samuel $2079; against Christian $500; against Margaret Rummel $2444.
    The plaintiff offered to prove in connection with the book, declarations of the decedent about his children and his estate; the offer was objected to because, before the auditor, the guardian had denied that the book was the record of the advancements, and because declarations of the decedent were not competent evidence to prove advancements. The offer was admitted and a bill of exceptions sealed.
    Isaac Schockey, a nephew of decedent, testified, that the decedent in 1846 or 1847, a few days after Christian left home, told witness that Christian had taken $400 or $450 of his money; he said he would charge him as he had done his other children; he had commenced making advancements to Samuel, said his children should all have alike; said he had started with $2000 and would go through with that to the other children; what he gave over that amount he would take notes for; this conversation had been before his second marriage ;* there were other conversations shortly before'his insanity.
    Margaret Hollinger, the widow, testified, that she had kept house for him for three or four years before their marriage; also as to declarations of decedent that he intended to make his children equal; that he so said after the birth of her child; that she had seen the book but there were then no black lines over the charges. There was evidence that the decedent had given money to some children about the date of the entries in the book.
    The plaintiff rested.
    Oiler and Samuel Hollinger testified that the book came into their hands when they entered upon their duties as committee, and that it was in the same condition as at the trial.
    The defendants gave in evidence the proceedings in lunacy; they also gave evidence of declarations of the decedent, that he had made distribution amongst his children, thought it was right he should do so as $3000 of his estate came from their mother.
    The plaintiff asked the court to charge:.
    1. If the jury believe from the evidence that the entries of moneys and other articles in the book offered in evidence are correct, and that John Hollinger charged- the children with said moneys and other articles, in the hook,“at or about the times the same were received, the law presumes that he intended said moneys and other articles to be advancements by- him to said children, on account of their shares of his estate after his death.
    2. If the jury believe from the book, and the declarations of John Hollinger, that have been testified to by the witnesses, that the moneys and other articles given by John Hollinger to his children, and charged against them in the book, were intended by him as advancements to his children, on account of their shares of his estate after his death, the burden of proof is on the defendant to show the jury, by some clear and satisfactory evidence, that John Hollinger, subsequently by some act of his, changed the advancements into pure gifts.
    3. If the defendant relies on the black lines drawn across the book in evidence as proof of a conversion of the advancements into gifts, he must prove by satisfactory evidence that the black lines were made by John Hollinger, when they were so made, under what circumstances and with what intent they were so made. More particularly is this necessary in the present case, because defendant has shown that John Hollinger was insane for several years before his death.
    4. There is no evidence before the jury, by whom the black lines were made, nor when they were made, nor with what purpose, and, therefore, the mere existence of the black lines across the book is not sufficient in itself to change the advancements charged in the books into gifts.
    The court affirmed all the points, qualifying the 3d by saying, “ except as to when and under what circumstances.”
    The court, after referring to the facts, charged:— * * *
    “ If, then, you determine that these sums were given by the father to his children by the first wife, you will consider of the next question.
    “Was the money so given, given as a present or as an advancement ? For no one claims that these charges were debts. Now a present is a gift, and so is an advancement; but a present is never at any time to be accounted for, whereas an advancement is a gift to be accounted for by the child, when the father’s estate comes to be settled up and distributed. An advancement is defined to be an irrevocable gift by a parent in his lifetime, to a child, on account of such child’s share of his estate, at the parent’s death.
    “ When a father in the circumstances of John Hollinger, gives to a child so large a sum as $2000 (not as a loan), on the occasion of his leaving home, or to help him along in life, and charges the sum in this way, the presumption of law is that the gift is an advancement, and not a present. This presumption may be rebutted by evidence of what the parent intended at the time,
      by evidence that he intended it as a pure gift. But I ana hound to say to you, that I see no evidence in this case of such a character, and that in the absence of such evidence, if the children received the sums charged, they received them as advancements.” * * *
    “But if these sums of money were obtained by these four children of the first wife from their father, and if they were advancements at the time they were given, then there is a further question: Did John Hollinger, by any act of his, subsequently convert these advancements into gifts? For undoubtedly he had the l’ight and the power to change these advancements, if they are such, into pure gifts or presents. This is a pure question of intention, which must be evidenced, however, by acts or declarations of the parent.
    “The counsel for the defendant say, that upon the second marriage of John Hollinger, under the peculiar circumstances of that marriage,he changed his mind, and made the former advancements pure gifts. They say that he then cancelled the charges in the book against the children of his first wife, and thereby evidenced his intention that they should never account for those sums to anybody.
    “ Now, if John Hollinger in his right mind drew these transverse black lines across these charges, the irresistible inference is that he intended to destroy them as evidences of advancements, to cancel them so that they might not be taken into account in the settlement of his estate. Did he then cancel those charges, and if so, was he sane when he did ? >

    “ There is no direct evidence who cancelled them; but the books, if you believe the evidence of Hollinger and Oiler, his committee, were found by them cancelled just as they now are. If these two gentlemen, his committee, drew those lines, or any other person than Hollinger himself, the cancellation amounts to nothing, of course. How are you to decide this, supposing you to believe the committee ? They came out of John Hollinger’s desk from among his papers, and if they were then as they are now, the presumption is that John Hollinger, the father, drew the lines. This is the presumption with which you start — but it is capable of being rebutted by any proper evidence — you will say whether there is any such evidence. The presumption is, perhaps, supported by the fact of a second marriage, and a son born under peculiar circumstances. [But if these charges were originally advancements, it is incumbent upon the defendant; to show that Hollinger not only cancelled them but that he did so in his right mind.] Before these papers came into the hands of his committee he was insane a year or two at least. He was married in February 1860. In March 1864, he was declared a lunatic, and the jury of inquest say that lie bad been a lunatic four or five years. Tbis is primá facie so.
    “ Now one of tbe strong positions of tbe defendant is, that in consequence of tbe second marriage be changed bis mind, and made gifts of wbat bad been advancements. But almost if not altogether from tbe date of tbe marriage be was insane, according to the finding of tbe inquest. [If, then, tbe moneys advanced by tbe father were advancements and not presents at tbe time they were given, they must bear that character until proof is brought to show a conversion into some other, and tbe defendant being tbe party that alleges such conversion, tbe burden is upon him to show that tbe change took place.] [The burden is upon him, then, to make out that Hollinger drew the lines, and that be drew them knowing wbat be did, in other words, that be was sane when be cancelled tbe charges. The finding of tbe inquest throws tbis obligation upon tbe defendant, and be must bring evidence enough to satisfy you of Hollinger’s sanity when the cancellation was done.”] * * *
    Tbe verdict was for tbe plaintiff, and the defendant took out a writ of error.
    Tbe errors' assigned were:—
    1. Restricting tbe evidence of Oiler and Samuel Hollinger in tbe order for the issue.
    2. Admitting evidence of tbe declarations of tbe decedent.
    3-6. Tbe answers to tbe plaintiff’s points.
    7-10. Tbe parts of tbe charge in brackets.

      F. M. Kimmell (with him F. J. Bonebrake and W. Adams), for plaintiff in error.

      J. McD. Sharpe (with him J. W. Douglas and J. Douglas), for defendant in error.
    An advancement is an irrevocable gift on account of a child’s share: Hengst’s Estate, 6 Watts 86. Tbe presumption is that receipts from a parent are advancements: Dutch’s Appeal, 7 P. F. Smith 461; Murphy v. Nathans, 10 Wright 508. Declarations of tbe parent are evidence to show bis intention: Levering v. Rittenhouse, 4 Wharton 130; King’s Estate, 6 Id. 370; Miller’s Appeal, 4 Wright 57; Thompson’s Appeal, 6 Id. 345; Haverstock v. Sarback, 1 W. & S. 390. If tbe moneys were originally advancements, they would so continue until changed: Kreider v. Boyer, 10 Watts 54. Tbe inquest of lunacy was a legal presumption: Rogers v. Walker, 6 Barr 371. A lucid interval must be proved: Grangwere’s Estate, 2 Harris 417; Willis v. Willis, 2 Jones 159; Noel v. Karper, 3 P. F. Smith 97. Tbe court bad tbe right to restrict tbe evidence of interested persons in directing tbe issue: Ringwalt v. Ahl, 12 Casey 336.
   The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

The issues framed were very special. It was not a general one, whether John Hollinger had made advancements to any of his children in his lifetime, but whether a small book produced before the auditor was the family book of said Hollinger, and then in four counts separately averring that he had charged each of his four children certain amounts as advancements to them respectively, and that the entries and charges in said book were accurate and true. This small book, made by a sheet of common writing paper folded in that form, contained charges as declared on against each of five children, but they were crossed or cancelled by black lines except one to his son Christian, who not having been heard from for many years, is presumed to be dead. It was called for by the plaintiff below from the custody of the defendants, and being produced it was offered in evidence, in connection with the testimony of a witness of declarations of the decedent about the time of the charges in the book. This was objected to so far as the book was concerned, not because it was a mutilated or cancelled document of which some explanation must be given before it could be admitted, but specifically and solely because the plaintiff in the issue, the guardian of Lewis Hollinger, had before the auditor persistently denied that the book produced was the record of the advancements made by John Hollinger to his children. Such a denial made by the guardian certainly could not estop him from offering the book in evidence, whatever effect it might have with the jury in discrediting the document. The accompanying declarations being cotemporaneous with entries made in the account and admitted to have been in the handwriting of John Hollinger, were clearly competent evidence: Hengst’s Estate, 6 Watts 86; Daniel King’s Estate, 6 Wharton 370. It was not an attempt to turn what was primd facie a debt into an advancement by the declarations of a parent made subsequently and in the absence of the child, which would have been inadmissible: Levering v. Rittenhouse, 4 Wharton 130; Haverstock v. Sarbach, 1 W. & S. 390; Yundt’s Appeal, 1 Harris 575; Miller’s Appeal, 4 Wright 57. But in truth the paper produced in the handwriting of the intestate did not need the aid of any such parol evidence. The sums were not charged against the children as debts and their amount precluded the idea that they were presents without some testimony to show this affirmatively: Daniel King’s Estate, 6 Wharton 370. There was evidence then before the jury, admitted without objection, even if not competent, that John Hollinger at the dates stated in the book, did pay certain sums to his children as advancements.

We start with this, then, as a fact in evidence. Now the rule is a general and reasonable one that things shown once to have existed must be presumed to continue in that state until the contrary is established by evidence, either direct or presumptive: Best on Presumptions 186. The principle ought certainly to apply in a case like this in support of the natural and reasonable presumption that a parent, who has made large advancements to his children as such, continued to intend that on h'is death intestate they should all he brought into account, so that they should share equally in his estate. What was relied on to rebut this otherwise inevitable conclusion was the fact that this document was found on the death of John Hollinger. among his papers in a cancelled state. It was contended that this fact by itself was sufficient to evince that there had been a change of his intention by which these advancements were converted into presents. This probably was so, and then, if the evidence in '.the cause had rested there, the affirmance by the court of the 4th point of the plaintiff below would have been an error. But we must interpret that affirmance by the general charge and the other evidence. In connection with that, the mere existence of the black lines across the book was not sufficient in itself to change the advancements charged in the book into gifts. An inquest upon a commission cié lunático inquirendo, produced by the defendants below themselves, found that John Hollinger had been of unsound mind for more than six years before his death. The primfi facie effect of this finding is not a point in dispute. How then did it operate upon the presumption of a change of intention in the decedent ? It threw the question open. A paper is produced from the possession of a man non compos mentis in a cancelled state. He had an interval and opportunity to cancel it before he became insane, but equal opportunity to do so afterwards. How can it be said that there is any presumption of law one way or the other ? The onus was still on the defendants below to meet and rebut the clear and incontrovertible, if not uncontroverted, fact that John Hollinger had made large payments to his children while he was of sound mind, intended by him at the time as advancements. They must show a change of that intention at a time when he was of sound mind. The prima facies of the finding by the inquest imposed this upon them. Stabitur presumptioni donee probetur in contrarium. It is a mistake, however, to suppose that positive direct and affirmative evidence was necessary for this purpose, or that it was required by any ruling of the learned judge below. It was for the jury under all the circumstances to decide this point. The presumption to be passed upon was one of fact, not of law. Like the case of two persons, perishing in the same calamity, where the question is, which survived, our law recognises no artificial rule of presumption from age or sex, but leaves it to the decision of a jury upon all the circumstances: Best on Presumptions 201. This question, as we understand it, the learned judge below did submit to the jury. He did not take it from them by the instruction that it was incumbent on the defendants to satisfy them that Hollinger not only cancelled the entries, but that he did so in his right mind. The onus we have seen was thrown upon them by the special character of the issues and the course of the testimony. He nowhere instructed them that they might not infer from the evidence that the cancellation took place before the insanity commenced. He said in affirming the plaintiff’s 4th point that there was no evidence when the black lines were made nor with what purpose, and therefore their mere existence was not sufficient in itself to change the advancements charged in the books into gifts. The reasonable explanation of this answer, which we are bound to give it so as to render it consistent with the charge, is that inasmuch' as John Hollinger was shown to have been insane for a long period before his death, and there was no evidence at what time the black lines were drawn, those lines were not of themselves sufficient to rebut the evidence of advancements. Had he answered otherwise it would have thrown the onus on the plaintiff, and been a determination of the cause in law in favor of the defendants. If on the other hand he had meant to say that independently of the book itself there was no evidence in the cause from which the jury might infer that John Hollinger had determined to change the advancements into gifts while in a sound condition of mind, it would have been his duty to have so instructed the jury by a binding direction.

There were, however, facts and circumstances bearing upon this question, to some of which the learned judge below adverted in his charge. On the one side were his second marriage, a very short time before he became insane, and a son born a few weeks afterwards. Yet it is not easy to see why we should conclude from that, without more, that he wished to deprive of an equal share of his estate this child whom he acknowledged as his son, and took care to secure his legal status as a legitimate child by marrying his mother before his birth. It is true that $3000 he had received from his first wife, the mother of his other children. He gave that as a reason for making the advancements. So far as it went, it would be good. But it would be no reason for dividing between them, out and out, $13,000, to the exclusion of his youngest child, not in being when the advancements were originally made. Instead of drawing black lines over the whole, had there been a credit entered or deduction made of $3000, it would have been a sensible, rational and intelligent act. Perfect self-possession and soundness of mind would have prompted the entire destruction of the document if he had meant to accomplish the result now aimed at, or else to have made a written will. In addition to considerations of this character, conversations between him and his nephew, up to the date of his marriage, a few weeks before his insanity began, showed no change of intention in regard to the advancements, and the testimony of the widow was very positive and express that up to and after the birth of the last child, he spoke of not wishing to make any difference among his children.

The court below in awarding the issue had an undoubted right, in their discretion, as the law then stood, to make the order .that the defendants should be examined as witnesses, and to confine their testimony to the question of the cancellation. They were interested and incompetent witnesses, and therefore they have nothing whereof to complain.

Judgment affirmed.