author: by Sharswood, J.

text:
    Breden versus Gilliland, Executor, &c.
    1. There is no limitation to the power of a court to open a judgment by default for want of an appearance.
    2. The lien of the judgment on realty is not thereby disturbed, and the lourt may impose such terms as will secure the lien of a fi'.fa. on personalty.
    3. The opening of such judgment is discretionary and cannot be reviewed.
    4. A court has not power to strike off a judgment regular on its face.
    5. If there be a fact which ought to appear on the record and does not and which would render the judgment irregular, it should be put on the record by amendment, nunc pro tunc.

    6. In an action in the Common Pleas for a legacy, a plea of want of assets and other pleas were filed; the jury could not pass on the plea of want of assets, but only on the other pleas.
    7. The jury is to decide the plaintiff’s right to the legacy and its amount; the question of assets is to be determined subsequently by the Orphans’ Court.
    ■ 8. When a legacy is exclusively payable out of lands, the proceeding is by petition in the Orphans’ Court.
    9. The primary funds to pay legacies, whether charged on land or not, is the personal estate, unless special provision be made to the contrary, and the legatee should exhaust the personal estate, before proceeding against the real estate.
    November 14th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lawrence county: Of October and November Term 1870, No. 199.
    This was an action of debt, commenced August 2d 1860, by. Maria Bredin against Robert Gilliland and Joseph Morrison, executors, &c., of Josiah Hutchman, deceased, in which Gilliland alone was served. On the- 7th of June 1861, the court, on motion of the plaintiff, entered judgment against the defendant for default of appearance and directed the prothonotary to liquidate the judgment, which was done June 22d against Gilliland at $210.65.
    On the 10th of June 1865, Gilliland moved to open the judgment and to be let into a defence. On the 28th of June 1867, the judgment was opened, &c., the case “to be tried without delay or continuance, the lien of the judgment to continue, and no • objections to be taken to the form of action or the jurisdiction of the court.” The plaintiff declared in debt for a legacy under the will of Josiah Hutchman, deceased. The defendant pleaded, “ nil debet,” “ payment and payment with leave,” &c. ’ On the 9th of September, the court granted the defendant leave to withdraw his pleas and file a demurrer. September 14th the plaintiff withdrew his declaration by leave of the court. The case was tried May 19 th 1868 and a verdict rendered for the plaintiff for $337.0&. Judgment was entered on the verdict September 27th 1868. On the 12th of February 1869, the defendant moved the court to set aside the judgment entered on the verdict and to strike it from the record; on the 26th of March, the rule was made absolute. On the same day the court filed an opinion and made this order: “ We direct the prothonotary to enter judgment upon the verdict (if the jury fee is paid), and we give the defendant six weeks stay of execution.” Judgment was entered same day for f337.08 with interest as of May 18th 1868. A writ of error was taken to this judgment which was reversed by the Supreme Court and a venire de novo awarded (13 P. F. Smith 393).
    On the 2d of May 1870, the defendant by leave of the court added the plea of want of assets.
    The case was tried June 22d 1870, before McGruffin, P. J., The plaintiff gave in evidence the will of Josiah Hutchman, deceased, proved March 26th 1855, in which are the following clauses: “ First, to Hester Maria Breden, I bequeath one hundred dollars, to be paid to her two years from the date of my decease.” * * * “ The whole remainder of my property, real, personal and mixed, I bequeath absolutely to my beloved wife Mary Jane Hutchman.” The plaintiff here rested.
    The defendant gave no evidence but submitted these points:
    1. The plaintiff cannot recover under the plea in this case without showing more than the will of the decedent.
    2. Under the plea of want of assets, the plaintiff must show that sufficient personal estate for the purpose over and above the amount necessary to pay the debts of decedent came into the hands of the executors to satisfy this legacy,, otherwise she cannot recover.
    3. The plaintiff on failure to show sufficient personal assets for the payment of the legacy cannot recover the legacy except by showing it to be a charge on the real estate and then only as against the devisee and not as against the executor, and cannot therefore recover in this action.
    4. That in any event the burden of the proof is on the plaintiff to show all the matters necessary to charge the executor.
    The court affirmed these points and further charged: * * *
    “We further instruct you in the absence of evidence to show assets applicable as I have already said, that the devise to Maria Breden has by the terms of the will been made a charge upon real estate, and that in consequence of the residuary devise to Mrs. Hutchman, blending both real and personal property in the bequest to her, the real estate devised to her is responsible for the payment of this legacy, and the remedy of the plaintiff is against such real estate, if any such may be found left by the decedent. And therefore if the facts shall be found by you as we have already instructed you the plaintiff has no merits, and therefore our permission of the pleas of record was not in contravention of any principle of law, in the order we have made in the opening of the judgment.”
    January 3d 1871
    “ Your inquiry then will be, are there assets in the hands of the defendant Mr. Gilliland sufficient to pay the plaintiff’s claim, which he refuses to apply in payment of the same, as shown you in proof by the plaintiff, if so, then the plaintiff is entitled to your verdict, for the amount of $100 with interest from the 26th of March 1857. If not, then your verdict will be for the defendant.”
    The verdict was for the defendant.
    The plaintiff removed the case to the Supreme Court and assigned for error:
    1. Opening the judgment of June 7th 1861.
    2. Granting leave to withdraw the pleas and file a demurrer.
    3. Striking off the judgment entered on the verdict September 27th 1868.
    4-7. The affirmance of the defendant’s points.
    8. The foregoing portion of the charge.

      R. B. McComb and J. McMichael, for plaintiff in error.
    It was too late to strike off the judgment of 1861: Matthers v. Patterson, 9 Casey 485; Commonwealth v. Mayloy, 7 P. F. Smith 291; Catlin v. Robinson, 2 Watts 373. Act of February 24th 1806, sect. 22, 4 Smith L. 275, Purd. 158, pl. 113. The plea of want of assets ousted the jurisdiction of the court and the terms of opening the judgment therefore excluded the plea.

      R. Gilliland and D. Craig, for defendant in error.
   The opinion of the court was delivered,

by Sharswood, J.

In the nature of the case there is not and ought not to be any limitation of time to the power of a court to open a judgment entered by default for want of appearance. The lien of the judgment on real estate is not thereby disturbed, and even if there should be an outstanding fieri facias, and a levy under it on personalty, it is always in the power of the court to impose such terms as will preserve the lien of the execution or substitute sufficient security in the place of it. Thus no injury is done to the plaintiff beyond the delay. On the other hand, the liability of the sheriff and his sureties for a false return of served” to the original process, may be entirely lost to the defendant, and a plaintiff, conscious of the inherent weakness of his cause, may purposely lie by, and suffer his judgment to sleep until the time for moving to open the judgment shall have elapsed. Thus irreparable injustice might be done to a defendant entirely ignorant that any proceeding had been instituted against him. The opening of such a judgment is, therefore, a matter purely within the discretion of the court below, which cannot be reviewed here. Nor for the same reason can we sustain the second error assigned to the order of the court, in granting leave to the defendant to withdraw his pleas and file a demurrer to the declaration.

Had the plaintiff taken a writ of error on the order of the court of March 26th 1869, striking off the judgment of September 27th 1868, entered on the verdict of a jury, without taking any subsequent steps in the cause, there would be much reason to think that it could not be sustained as the record now stands. Opening a judgment and striking it off are two entirely different things. No court has power to strike off a judgment regular on its face. If there was a fact which ought but did not appear of record, which would render it irregular — as for example such as is alleged here, a point of law reserved at the trial — that fact should have been put upon the record by an amendment nunc pro tunc. The plaintiff, however, acquiesced in the order of the court, and went on to trial. It is entirely too late after this to take advantage of the error.

The remaining assignments of error all depend upon a single question, and may be considered together. The case, which was an action of debt to recover a legacy, went to trial upon a plea of nil deiet and it may be some other pleas. There was also a plea of want of assets. The learned judge below ruled, and so instructed the jury, that the question for them was whether there were personal assets in the hands of the executor sufficient to pay the claim of the plaintiff, and that if they found that there were not, their verdict should be for the defendant. In this we think there was error. The plea, of want of assets was not before the jury for their determination. Their power was only to decide the issues upon the other pleas. The question of assets is committed by the law to another and more appropriate tribunal — the Orphans’ Court. The Act of March 21st 1772, 1 Sm. L. 383, entitled An act for the more easy recovery of legacies,” provided in the third section, “ that the respective courts, where the said actions shall be commenced upon the plea of the want of assets to pay all debts and legacies, shall appoint auditors to examine the accounts of the executors, &c., and upon their report the court shall award execution for such amount as shall be found payable to the plaintiff from the assets, and the judgment shall remain a security for the payment of the remainder of the said legacies and costs, when sufficient assets for the payment thereof come to the executors’ hands.

This act, which was a temporary one, but made perpetual by Act of October 9th 1779, 1 Sm. L. 473, was a re-enactment of a former temporary Act of February 3d 1742-3, 1 Miller 150, which was continued from time to time and then expired. This machinery was cumbrous and expensive and to be repeated in every action, and accordingly in pursuance of a general and wise policy of committing all settlements of decedents’ estate to the Orphans’ Court, the Act of February 24th 1834, Pamph. L. 83, which supplied and superseded the Act of 1772, introduced a more simple and efficient course .of procedure. By the fifty-third section of that act, if the executor shall plead to an action for a legacy, want of assets, without any other plea, no further proceedings shall be had until an account shall have been taken in the proper Orphans’ Court; and by the fifty-fourth section, “If any other pleas be pleaded by such executor, the issue thereon shall be decided in due course, as in other cases” — and after judgment the executor may aver want of assets, and thereupon execution shall be stayed until such account is taken as is provided in the preceding section. “ The issue thereon” is ¡plainly the issue upon the other pleas, rather than the plea of the want of assets. It follows then clearly that the issue on the plea of want of assets was not before the jury. It is not referred to them by the law to try and decide ; but after verdict deciding plaintiff’s right to the legacy, and its amount upon the other issues, the question of assets wherewith to pay it, and what proportion the plaintiff shall receive, if anything, if the assets are insufficient to pay all the legacies, is referred to a subsequent proceeding in the Orphans’ Court.

It may be true that by the residuary clause in the will of Josiah Hutchman, of which, however, we have not been furnished with a copy, blending together his real and personal estate, the legacies were charged upon the land; and it certainly is true that by the fifty-ninth section of the Act of 1834, the sole remedy of the legatee to reach the land is now by bill or petition in the Orphans’ Court: Downer v. Downer, 9 Watts 60; Strickler v. Sheaffer, 5 Barr 240; Miltenberger v. Schlegel, 7 Id. 241. When a legacy is exclusively payable out of the land in possession of the heir or the devisee, this is the only remedy. But this is not a proceeding to charge the land. The primary fund for the payment of all legacies, whether charged on land or not, unless special provision is made to the contrary, is the personal estate. “ The rule is general,” says Mr. Roper, “that in the absence of contrary intention, the personal estate is the first and natural fund for the payment of debts and legacies; and the real estate is only to- be resorted to in aid of the former:” 1 Roper on Legacies 463. “ When the real estate is merely charged with those demands, the personal assets are to be applied in tbe first place towards tbeir liquidationIbid. 574. The plaintiff, therefore, not only had the right, but it would seem was bound to proceed against and exhaust the personal estate before she could resort to her remedy against the land. It is not true then, as contended by the plaintiff, that the plea of no assets had the effect to oust the jurisdiction of'the court, and therefore should not have been allowed to be filed under the order' of the court in opening the judgment, that no objection should be taken to the form of the action, or the jurisdiction of the court.

Judgment reversed and venire facias de novo awarded.


source: Caselaw Access Project

author: by Williams, J.

license: Public Domain

text:
    Thompson et al. versus Rogers.
    1. Zook bought land at an Orphans’ Court sale, which was confirmed, and paid part of the purchase-money, but no deed was made: — Rogers by parol entered into partnership with him in milling; Zook’s capital to be the land, Rogers the machinery, both took possession. A judgment was recovered against Zook, Rogers afterwards paid the balance of the purchase-money; the land was sold under the judgment, Rogers having given notice of his title to an undivided half. The administrators afterwards made a deed to Zook and Rogers. Held that in ejectment against the purchaser at sheriff’s sale Rogers could not, by a conditional verdict, recover the purchase-money paid by him.
    2. Rogers took no title under the administrator’s deed.
    3. The administrator sold as an officer of the law, Zook took the title by the sale; its confirmation and the deed could be effectual in no other way.
    4. AVhether Rogers was entitled to an undivided half of the land under ;his parol contract, hot decided.
    November 14th 1870.
    Before Thompson, C. J., Bead, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Washington county: No. 220, to October .and November Term 1870.
    This was an action of ejectment brought December 24th 1868, by John Rogers against Isaac Thompson, Samuel Thompson and James Emery, for an undivided half of a lot of land. The cause was tried March 3d 1870, before Acheson, P. J.
    The title to the land.in dispute was originally in Samuel Adams, who having died it was sold by his administrator, Elijah Adams by order of the Orphans’ Court to Jonathan Zook for $450: the sale was confirmed February 15th 1856, the land was subject to the dower of a Mrs. Baumgardner. Zook paid the administrator $250 on account of the purchase-money, but a deed was not made to him. In the summer of 1856, Zook and Rogers by parol entered into a partnership in a grist-mill; Rogers’ part of the capital to be an engiije, &c., and Zook’s the land. In pursuance of this agreement they entered into the joint posession of the property. Rogers put up the engine and they conducted business together for some years. To May Term 1859, Sarah Harris recovered judgment against Zook for $200.
    The administrator of Adams having demanded the balance of the purchase-money from Zook was informed by him that the plaintiff was in partnership with him and would pay the balance; and December 4th 1860, the plaintiff paid the administrator $215 on account of the balance of the purchase-money. In 1864, Sarah Harris’ judgment was revived against Zook alone. In 1864, they ceased carrying on the partnership business, and Zook removed. In 1866 the plaintiff paid the purchase-money in full and also the dower of Mrs. Baumgardner. Zook’s interest was sold to the defendants at sheriff’s sale under the Harris judgment, the sheriff’s deed being acknowledged February 20th 1867. At the sale the plaintiff was in possession and gave public notice of his title to an undivided half of the premises.
    On the 4th of February 1868, the administrator under the advice of his counsel, the assent of Zook not appearing to have been given, conveyed the premises to Jonathan Zook and John Rogers, describing them in the deed and adding “ which the said Zook and Rogers by agreement so far executed between themselves that it would be against equity to rescind the same, held as tenants in common.”
    Neither party submitted points.
    After stating the facts, the court charged:—
    * * * “ Regarding the transaction between Zook and Rogers in the light of a parol sale merely, it might be difficult for the plaintiff to support this suit against the defendants as the sheriff’s vendees. ' Where parties maintain such relations to one another as to preclude the possibility of surrendering or taking possession in its entirety, of the land sold, a parol contract under the statute of frauds would be incapable of enforcement. Here Zook was in possession at the time of the partnership agreement, and the parties in pursuance thereof maintained a joint possession and •ownership. But may the plaintiff not employ the present action to recover back the money he has paid upon the Orphans’ Court sale whereby the legal title has been secured ? At the time Sarah Harris obtained her judgment in 1859 against Zook, it became a lien upon the equitable estate he had acquired by virtue of the Orphans’ Court sale. This lien would be measured by the amount of purchase-money Zook had then paid; but the judgment would open to take in the additional equities created by any future payment he might make; and if the legal estate had been conveyed to him by Adams’ administrator, the lien of the judgment would have attached to and covered the whole estate, equitable and legal. But after the payment of the $250, Zook took Rogers in as a joint owner and partner. Rogers paid the balance of the purchase-money, and by reason of this, as well as by the notification from Zook of the joint ownership, the administrator, under the advice of counsel, executed a joint deed to Zook and Rogers. It cannot be denied, that as between themselves, Rogers fairly and honestly acquired the ownership of the one-half of the property, and if he cannot look to it for reimbursement he will sustain great loss. The plaintiff may not be able to make himself whole in this suit; for the engine he put up and the moneys he paid to extinguish the dower interest of Mrs. Baumgardner, he may have no remedy against the property now in possession of the defendants; but for the direct payments made to Adams’ administrator, on account of the purchase-money due upon the Orphans’ Court sale, we think he has a claim that may be enforced in this suit. The administrator upon notice from Zook received these payments from the plaintiff as joint owner, and upon the faith of this he made the joint conveyance which he delivered to the plaintiff. The latter was in the possession at the time of the sheriff’s sale, and the defendants then had notice of the partnership and plaintiff’s claim to the undivided half of the property. They knew likewise that Zook was not possessed of the legal estate. [Under these circumstances they bought his right and interest, and we think that in equity and good conscience they are as much bound to repay to the plaintiff what he advanced to secure the legal title as they would have been to pay the money to Adams’ administrator had it remained unpaid at the time of the sheriff’s sale. We instruct you therefore that the plaintiff ought to have a conditional verdict, to reimburse him for the money paid to Adams’ administrator, in completion of the Orphans’ Court sale.]
    The jury found for the plaintiff, to be released on the payment to the plaintiff of the sum of $540.10 within ten months from this date, with interest; concurrently with which payment the said plaintiff shall convey to the defendants all his interest in the land in dispute.”
    The defendants removed the casé to the Supreme Court and assigned for error the part of the charge in brackets.

      D. J. Wilson, for plaintiffs in error.
    The administrator having no interest in the land, is merely the officer of the court: Vandever v. Baker, 1 Harris 121; King v. Gunnison, 4 Barr 171; Randolph’s Appeal, 5 Id. 242; Fox v. Mensch, 3 W. & S. 444. The confirmation was conclusive; the authority to make a deed otherwise must be shown: Bellas v. McCarty, 10 Watts 13; Seechrist v. Baskin, 7 W. & S. 403. A trust does not result from payment of purchase-money, unless under a contract concurrent with the payment: Botsford v. Burr, 2 Johns. Ch. R. 408; Barnet v. Dougherty 8 Casey 372. The case is not one for the intervention of a chancellor: Lauer v. Lee, 6 Wright 165; Cadwallader v. Berkheiser, 8 Casey 43.

      January 3d 1871

      J. J). Braden (with whom was G. W. Miller), for defendant in error.
    Zook only could plead the statute; to all but him the sale was good without possession: Christy v. Brien, 2 Harris 248. An Orphans’ Court sale is not complete till delivery of the deed: Simmond’s Est., 7 Harris 441; Leshey v. Gardner, 3 W. & S. 314. Performance of a parol contract will be enforced where it is confessed in the answer: 2 Story’s Eq. J., sect. 755; Houser v. Lamont, 5 P. F. Smith 317. Rogers having paid the purchase-money at the request of Zook, may look to the land for reimbursement: Champlin v. Williams, 9 Barr 341.
   The opinion of the court was delivered,

by Williams, J.

It was conceded by the court below that the plaintiff was not entitled to maintain this ejectment against the defendants under his parol contract with Zook, the purchaser of the land at the Orphans’ Court sale. But having paid a part of the purchase-money to the administrator, and having received from him a deed conveying the land 'to himself and Zook as tenants in common, the court was of the opinion that he might employ the action of ejectment to recover from the sheriff’s vendees of Zook’s equitable interest, the money which he had paid the administrator upon the Orphans’ Court sale. This would undoubtedly have been the case, if the title to the land had been vested in the administrator, and he had made the sale to Zook in his own right. Then upon his payment of the residue of the purchase-money and the conveyance of the legal title to himself the plaintiff would have been invested with all the rights of the administrator as owner, and might have maintained the ejectment to recover the purchase-money which he paid the administrator. But the administrator had no title to the land — and no authority to sell and convey it except what he derived from the law, and the order of the Orphans’ Court. He did not sell and convey the land by virtue of his title as owner, but as the officer of the law under the direction of the courts. The sale, which he made under its direction, was to Zook, and it was confirmed by an order of the court. Under the order, he was authorized to convey the land to the purchaser on payment of the purchase-money, and he had no right or authority to convey it to the plaintiff, either as sole tenant or tenant in common with Zook, and, consequently, no title passed to the plaintiff by his conveyance. The evidence shows that the conveyance was made without the knowledge or consent of Zook. If it had been made with his consent, in consideration of the payment of the residue of the purchase-money by the plaintiff, then Zook might have been estopped from denying his title. But the sheriff’s vendees of Zook’s interest are not estopped. The judgment, under which the sale was made, was obtained before the payment of any portion of the purchase-money by the plaintiff, and it is clear that, if the plaintiff took no title to the land under the deed of the administrator, he is not entitled to maintain the action to recover back the purchase-money which he paid. If he is not entitled to recover the land under his parol contract with Zook, he is without any remedy. Whether or not he is entitled to the undivided half of the land under his parol- contract is a question which does not arise on the conditional verdict, or under any of the assignments of error, and therefore its discussion would be out of place.

Judgment reversed and a venire facias de novo-awarded.


author: by Agnew, J.

text:
    Rogers versus Johnson and Wife.
    1. The failure to give a surplus hond on the purchase of unseated land, and paying the whole purchase-money to the treasurer, are irregularities cured by the limitation in the Act of April 3d 1804.
    2. Within five years after a sale for taxes without filing a- surplus hond the owner may recover without redemption.
    3. The limitation in the Act of 1804 does not apply when an owner is in possession.
    4. Except where the owner is in possession, the limitation of the Act of 3 804 runs from the delivery of the deed and not from the time when the purchaser takes possession.
    5. Various cases on the Act of 1804, considered, compared, and discussed.
    6. Ash v. Ashton, 3 W.' & S.’510, recognised and approved.
    November 15th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Fayette county: No. 14, to October and November Term 1869.
    This was an action of ejectment brought April 14th 1866, by Worthington R. Johnson and Anna, his wife, for the undivided moiety of two tracts of land situate in Connellsville township, containing respectively 406 and 428 acres. The title to the tracts, October 19th 1811, was 'in Thomas Johnson, from whom an undivided half of them was vested in the plaintiff. The land was unseated and so assessed and taxed in 1831 and 1832 in the name of Thomas Johnson. The taxes being unpaid, both tracts of the land were sold to the defendant in June 1834 by the treasurer, under a warrant from the county commissioners; the purchase-money amounted to more than the taxes and costs; the defendant gave no surplus bond, but paid the whole purchase-money to the treasurer, who receipted for it on the deeds, which were dated June 10th 1834, and acknowledged in open court September 12th 1834. The tracts were wild mountain woodland. The .defendant occupied them for pasturing cattle; he. also cut and sold timber on them from about the time (of his purchase. They had been assessed in his name, and he had paid the taxes since 1838.
    The defendant requested the court to charge the jury:
    1. That this action of ejectment not having been brought until more than thirty years after the treasurer’s sale, the plaintiffs are not entitled to recover.
    2. That although no bond was given or filed at the time of the treasurer’s sale, for the surplus over and above the amount required for the payment of the taxes and costs, the defendant is protected by the Statute of Limitations relative to tax sales; his deed is good, and the plaintiffs cannot recover.
    The court (Gilmore, P. J.) charged : “ The plaintiffs have shown a good legal title for the lands demanded in their writ. The defendant claims title under treasurer’s deeds, for both the tracts sold by the treasurer of the county for taxes assessed upon the property as unseated, and requests us to instruct you on two points presented, that the defendant is entitled to your verdict. We refuse the instruction prayed for in these points, and charge you that there having been a surplus on the sale of both these tracts after payment of taxes and costs, if was the duty of the purchaser to make and execute bonds to the treasurer for the surplus ; not having done so his title under these sales is void, and the Statute of Limitations of the Act of 1804 cannot create a title or avail him anything. We therefore instruct you to render a verdict for the plaintiffs.”
    The verdict was for the plaintiffs. The defendant took out a writ of error, and assigned the charge for error.
    D. Kaine, for plaintiff in error.
    By the Act of March 18th 1815, § 4, 6 Smith’s L. 301, Purd. 995, pl. 35, irregularities will not vitiate a tax sale. An action for the recovery of land sold for taxes must be brought within five years from the sale: Act of April 3d 1804, § 3, 4 Smith’s L. 200, Purd. 995, pl. 36. These acts are in pari materia: Ash v. Ashton, 3 W. & S. 510. The provision's of the Acts of 1804 and 1815 apply to the want of a surplus bond: Iddings v. Cairns, 2 Grant 88; Bigler v. Karns, 4 W. & S. 139; Ash v. Ashton, supra, is recognised as correct in McCall v. Himebaugh, 4 W. & S. 164; Bayard v. Inglis, 5 Id. 465; Hubley v. Keyser, 2 Penna. R. 496. Actual possession by the purchaser is not necessary for the protection of the Act of 1804, and since the Act of March 29th 1824, § 4, 8 Smith’s L. 291, Purd. 996, pl. 39, no possession at all is necessary: Robb v. Bowen, 9 Barr 71; Waln v. Shearman, 8 S. & R. 357; Parish v. Stevens, 3 Id. 298; Bradford v. Dornseif, 2 Penna. R. 503; Sheik v. McElroy, 8 Harris 31; Donnel v. Bellas, 10 Barr 341; s. c. 1 Jones 341, 10 Casey 157.

      May 25th 1871,

      C. E. Boyle, for defendant in error.
    The want of a surplus bond was fatal: Sutton v. Nelson, 10 S. & R. 239; Connelly v. Nedrow, 6 Watts 452; Bartholomew v. Leech, 7 Id. 474; White v. Willard, 1 Id. 42; Fager v. Campbell, 5 Id. 287; McDonald v. Maus, 8 Id. 364; Ash v. Ashton, supra; Cuttle v. Brockway, 12 Harris 147; Alexander v. Bush, 10 Wright 62; Lackawanna Iron Co. v. Fales, 5 P. F. Smith 96; Turk v. McCoy, 14 S. & R. 352; Frick v. Sterrett, 4 W. & S. 269; Driesbach v. Berger, 6 Id. 565; Trego v. Huzzard, 7 Harris 441; s. c. 11 Casey 11. The limitation of the Act of 1804 does not run in favor of a void sale: Parish v. Stevens, 3 S. & R. 298; Cranmer v. Hall, 4 W. & S. 37; Donnel v. Bellas, 10 Barr 341; Stewart v. Trevor, 6 P. F. Smith 374; Gibson v. Robbins, 9 Watts 159; Turner v. Waterson, 4 W. & S. 174; Burns v. Lyon, 4 Watts 367; Robinson v. Williams, 6 Id. 287.
   The opinion of the court was delivered,

by Agnew, J.

This ejectment was brought in 1866 by Johnson and wife against Daniel Rogers, who claimed the lands in controversy by treasurer’s sales for taxes made in 1834. The land was wild mountain land, and Rogers took possession by pasturing his cattle upon it and by taking off timber from time to time, and paid the taxes from 1838 inclusive until the time of the trial. The plaintiff admitted his possession by bringing the ejectment. The jurisdiction of the treasurer to sell was undoubted. The land was unseated, the taxes regularly assessed, and were due and unpaid more than a year, the sales were regularly made and the deed executed, acknowledged and delivered; and the only irregularity complained of is, that Rogers paid to the treasurer, who receipted for the same, the whole of his bids, instead of giving bónds for the surplus over the taxes and costs. Is that irregularity cured by the limitation of five years contained in the 3d section of the Act of 3d April 1804 ? This is the only question. The case of Ash v. Ashton, 3 W. & S. 510, expressly decides the point in favor of- the purchaser at the tax sale. That case was determined in 1842, and has never since been doubted or overruled. Its ?authority is now questioned, and it is said the only reason given was the unsound one that the bond was not recoverable after five years. This is neither a correct nor a candid statement of the reasons given by Justice Kennedy, who delivered the opinion. His language was, that it “ could only be made available, according to ■ the express terms of the act, by causing an action to be entered on the docket of the prothonotary, in whose office it ought to have been filed within five years after the sale of the land.” How available ? Clearly he meant as a lien against the land, and not as a personal obligation. In regard to the owner’s remedy against the land, it makes no difference whether his title is gone by the limitation of five years, or by the loss of the lien of the bond. He then proceeds to say: “ It is not easy to discover any good reason why they (the owners) should be allowed a longer time to proceed to recover the one more than the other; for as regards the owners at the time of sale, the loss is the same to them; but as regards the interests of the state,- the application of the limitation of five years in order to bar the recovery of the land by the owners, may be very important. As regards the peace and quiet of the community, it would seem to be expedient that it should be applied; and as regards the wealth of the state, it would be not less so, because a protection to those in possession of the land by the application of such a limitation would be a great inducement with them to improve and render it much more productive and valuable than otherwise they would be likely to do.” The case of Ash v. Ashton has been since frequently cited and recognised without the expression of a doubt of its authority. It was heard at Sunbury in July 1842, and in the following September Justice Huston, in the case of McCall v. Himebaugh, 4 W. & S. 164, referring to Ash v. Ashton, says, “ the opinion of the whole court was delivered by Justice 'Kennedy.” Bayard v. Inglis, 5 W. & S. 465, decided in the next year, was a ease where the sale was made on the 16th of June 1824, deed duly acknowledged, dated 23d August 1824, and no bond was given until May 25th 1826, and it was then never filed. There Justice Rogers cited Ash v. Ashton, and held that the title was made valid by the limitation in the Act of 1804. Burd v. Patterson, 10 Harris 219, decided in 1853, was a similar case. Lewis, J., delivered the opinion, holding the bar of the Act of 1804 to be effectual. It is objected,” he says, “ to the sale, that no surplus bond was given; but it appears that one was given on the 7th of February 1833, which was before the expiration of the two years. But under the view taken in Ash v. Ashton, 3 W. & S. 516, this irregularity, as well as all others, is cured by the Statute of Limitations.” If Ash v. Ashton be not good law, it is remarkable that it should be so often, and so soon, brought into the direct view of our predecessors and recognised as authority without a note of dissent. This is not all. At the very term when Burd v. Patterson, supra, was decided, the point arose directly in Iddings v. Cairns, 2 Grant 88, and was distinctly decided. The report in Grant’s Cases is meagre ; but the paper-books have been examined, and the question arose in two forms, first by objection to the competency of the deed “ because no surplus bond had been first shown to have been given ;” and next upon the answer of the court to a point expressly requiring the court to charge that the deed “ conferred no title because there is no evidence of the execution and delivery of a surplus bond to the treasurer.” In this court, Black, C. J., said: “ In a contest between a purchaser at treasurer’s sale and the original owner, or between those claiming under them, the limitation in the Act of 1804 gives the purchaser a good title after five years, although it may be shown that he bought at a- price greater than the amount of the taxes and costs and filed no bond for the surplus.” Here, then, is a decision on the very point; and if there is any virtue in the maxim stare decisis, in the stability of the rules of property, or any faith to be given to titles, the law should be regarded as settled, especially in view of the thousands of tax sales, on the faith of which titles are held.

Much of the argument was rested on the treasurer’s sale being void, when no bond has been given for a surplus. This, however, is a mere play upon the word void — a' term merely expressive, in such a case as this, of a fatal irregularity in the sale, and not of a want of authority to make the sale. The 4th section of the Act of 1815 had declared that the owner should recover only on two grounds, viz., a previous payment of the tax, or an offer to redeem within two years. But the court, considering it unjust that the purchaser should hold the land without securing the payment of his bid, held that his omission to give a bond for the surplus was fatal to his title. This, however, is obviously only an irregularity, but because it is fatal, the sale has been termed void. But when the land is unseated, the tax duly assessed and unpaid, a sale regularly made and deed delivered, and the purchaser has in good faith paid his bid to the treasurer, the case bears no resemblance to a sale void from a want of authority or jurisdiction. In such a case there is no reason whatever that the purchaser should not be protected by the limitation in the Act of 1804. Within the five years the owner has his remedy, and may recover his land without redemption; and if he fails to bring his suit in time, he is no worse off as to the title than if there had been a surplus-bond, and he had failed to pursue it against the land within the five years during which it remains a lien.

The distinction between a sale absolutely void from a want of jurisdiction to sell, and one merely void because of a fatal defect in the proceeding is palpable. Thus, in McKee v. Lamberton, 2 W. & S. 114, and Cranmer v. Hall, 4 Id. 36, where the land was seated and the treasurer had no authority to sell, it was held that the purchaser was not entitled to be compensated for his improvements; while in Coney n. Owen, 6 Watts 435, and Gilmore v. Thompson, 3 Id. 106, where the' lands were unseated and the treasurer had general jurisdiction, but the sales were void because in the first case of exemption from taxation, and in the second because of a prior payment of the takes, the purchaser was held to be entitled to his improvements. There are other cases, even when the irregularity has deprived the owner of his surplus bond, where the sales have been sustained. Thus the sales were supported-in Gibson v. Robbins, 9 Watts 156, where the treasurer charged too much costs, and appropriated the whole bid where a surplus would have existed for which a bond should have been taken; and in Peters v. Heasley, 10 Watts 208, and Russell v. Reed, 3 Casey 166, where the commissioners of the county bid more than the taxes and costs, and the owner was thereby deprived of his security for the surplus. So also the sale was supported in Frick v. Sterrett, 4 W. & S. 269, where the treasurer by mistake took the bond for less than the true surplus. To these cases may be added Bayard v. Inglis and Burd v. Patterson, supra, where no bonds were given when the sale was made and deed delivered. In the former the bond was not given until nearly two years afterward, and it was never filed.

It was argued that the limitation in the.Act of 1804 does not apply to a case where the owner is in possession. That is true, as was determined in Bigler v. Karns, 4 W. & S. 137, and Shearer v. Woodburn, 10 Barr 511. But that is where the possession is actual, and the owner is thus daily and hourly challenging the validity of the tax title. It is not so, however, in any other case, and it is settled that in all other cases the limitation runs from the time of the sale, and not from the time when possession is taken by the purchaser. Parish v. Stevens, 3 S. & R. 298, the first case decided under the Act of 1804, on this point, was overruled by Waln v. Shearman, 8 S. & R. 357, on the ground that an ejectment would not lie against a vacant possession.

But the Act of 29th March 1824 having provided a remedy for the owner in the case of a vacant possession, this court returned to the doctrine of Parish v. Stevens, and it is now held that the limitation runs from the time of the sale, and not of possession: Robb v. Bowen, 9 Barr 71; Sheik v. McElroy, 8 Harris 25; Burd v. Patterson, supra; Stewart v. Trevor, 6 P. F. Smith 385. In the last case Justice Strong, summing up the cases, says: Since the Act of 29th March 1824 the limitation is perfect at the end of five years from the delivery of the deed to the purchaser without regard to possession.” In the present case not only was there no possession in the owner, but the purchaser, at the tax sale, took possession by pasturing his cattle on the land, taking off timber, and paying the taxes, while the owner remained inactive, and admitted himself to be out of possession by bringing the ejectment against the purchaser.

In the argument, Donnel v. Bellas, three times reported (10 Barr 341, 1 Jones 341, 10 Casey 159), was relied on. But that case is wholly inapplicable. There the treasurer’s deed was never delivered, the purchaser gave only a note for his bid, the money was never accounted for by the treasurer, and within five years from the sale the owner of the tract paid the taxes and costs, and lifted the undelivered deed from the treasurer. The purchaser-bad not a shadow of title, and the limitation in the Act of 1804 had nothing to operate upon. So the case of Trego v. Huzzard, also reported three times (7 Harris 441, 10 Harris 368, 11 Casey 9), has no resemblance to this. There the tax title was defeated by a redemption, and the claimant of it, who bought it from the purchaser at treasurer’s sale, was the agent of the owners in making the purchase. His claim was in bad faith, and the limitation was inapplicable. Hoffman v. Bell, 11 P. F. Smith 444, opinion by Sharswod, J., is not parallel. The purchaser had no deed, and no title to be helped out by limitation. In this case the law is clearly with the plaintiff in error. He had a title, invalid it is true, but such an one as the limitation of five years clearly should protect.

Judgment reversed, and a venire de novo awarded,

Thompson, 0. J., dissented.


text:
    Loucheim Brothers’ Appeal. Reis, Brown & Berger’s Appeal. Raney’s Appeal. Weller’s Appeal.
    1. A number of executions had been issued against Wilson; the plaintiffs agreed to stay for'four months, and with other creditors (not being all) agreed to give him time, and ‘ ‘ in case of executions issued on any of said claims it is hereby stipulated that the above-named execution-creditors shall have priority whatever the order of fheir being issued.” This meant, that in case of executions, being issued on the claims of any of the signers to the agreement, the executions then issued should have priority, but as between the executions issued, in case of insufficiency the fund raised should be distributed pro raid. The signers were bound in good faith to carry it out.
    2. Wilson owed Loucheim $1600, which he stated in the agreement and to the other creditors at $830; and to induce Loucheim to sign, gave' him a judgment for $800 as part of the debt,'payable in 30 days. This was a fraud on the other signers, and Loucheim’s judgment as to them was void.
    .3. It was not void as to creditors not signing.
    4. Loucheim having'issued execution on his judgment was trustee ex maleficio for the signers, in respect to any advantage obtained by it.
    5. McCord, one of the original execution-creditors 'and a signer, issued execution prematurely after Loucheim; there being no provision for forfeiture in such case, he also was trustee for the other, signers.
    6. Robinson, not one of the signers, issued execution after McCord; he had no claim to the fund till after the other two were, satisfied.
    7. Loucheim’s acts were not a fraud on Robinson.
    8. The fund raised on the executions, was to be distributed amongst the execution-creditors who signed the agreement pro raid.

    9. Wilcocksi. Wain, 10 S. & R. 380, Manufacturers’ and Mechanics’ Bank. v. Bank of Pennsylvania, 7 W. & S. 335, adopted.

      November 15th 1870.
    Before Thompson, 0. J., Read, A&new, Si-iarswood and Williams, JJ.
    Appeals from the Court of Common Pleas of Lawrence county: No. 216, 217 and 221: Of October and November Term 1870. In the distribution of the proceeds of the sheriff’s sale of the personal property of Martin B. Wilson.
    Prior to March 22d 1869, executions had been issued against Wilson by Reis, Brown & Berger, Klee k Bro., Whitmore & Co., J. Quigley, L. Raney, McCord & Co. and A. Weller, amounting in the whole to $3297.68. On that day an agreement was made, reciting Wilson’s indebtedness under these judgments, and his indebtedness to a number of other creditors, whose names with the indebtedness of each were stated in the agreement. The aggregate amount of these latter debts as stated was $7488.02. Amongst other creditors named were Loucheim Bros., whose claim was stated to be $830. The agreement further recited that Wilson could not go on without an extension, and it was believed by an extension that he would pay all, and be able to prevent a sacrifice of his property. The agreement stipulated that “ The above-named execution-creditors stay their judgments for four months from this date, and all the other above-named creditors do hereby agree to accept in satisfaction of their several claims the judgment bond of the said Wilson to S. W. Dana, trustee for their use respectively for the amount of their respective claims, payable one-half in six months from this date, and the other half in eight months from date, with interest from this date. It shall be stipulated in said bond that in case of default in paying either instalment at the day the same falls due, or in case of the nonpayment of the aforesaid execution-creditors at the expiration of their stay aforesaid, then in either case the whole amount of said bond shall be and become due and payable, and execution may immediately issue therefor with attorney’s commission for the collection thereof. In case of executions issued on any of said claims, it is hereby stipulated that the above-named execution-creditors shall have priority, whatever the order of their being issued. This agreement not to be binding upon any signer thereto until subscribed by all and every of the aforesaid creditors.”
    The list given in the agreement was said by Wilson to contain .all his creditors and the amount of their indebtedness correctly. 'It appeared, however, that the firm of Robinson & Co., whom he did not name at all, were amongst his creditors. It also appeared ■that his indebtedness to Loucheim Brothers was $1600, instead of $880, as stated in the list. Robinson k Co. were never asked to sign-the .agreement. When Loucheim Brothers were asked by Wilson to sign it, they refused unless part of their indebtedness were ¡first paid; Wilson having declined, they finally agreed to sign .upon Wilson giving them ,a judgment bond for $800, payable in thirty days; he gave the bond; they then signed the agreement to give time on $880, the amount stated in the agreement,being the remainder due to them. The $800 judgment being unpaid at maturity, Loucheim Brothers issued execution on it on the 13th of May 1869. On the 23d of June, McCord & Co., execution-creditors at the date of the agreement and signers of it, issued execution for $371.88. Robinson & Co.,' on thé 7th of July, issued execution on their claim for $2953.02; after which there were sixteen executions issued, the last being on the bond given to Dana as trustee for $7863.02; this execution, with eight others of those who signed the agreement, was issued July 23d, the day after the four months’ stay stipulated for had expired. The money for distribution was made under these executions; it amounted, after various deductions and the costs of audit, to $3091.81. M. B. Welch, Esq., was appointed auditor to report distribution.
    January 5th 1871,
    He reported to Loucheim Brothers $570, the amount due them beyond the $830 mentioned in the agreement, being of opinion, that as to that sum they were excluded by their breach of the agreement in issuing execution prematurely ; for the same reason he excluded McCord & Co. altogether and awarded the balance of the fund to Robinson & Co. as the next execution-creditors.
    Upon exceptions filed by all the creditors, the court was of opinion that Loucheim Brothers had acted in bad faith and in fraud of their agreement made with Wilson, and that after the issuing of their execution prematurely, McCord & Co. were relieved from any obligation under the agreement not to issue execution. It was therefore decreed, that Loucheim Brothers should be altogether excluded from the distribution ; that the execution of McCord & Co. should,, be first satisfied, and the balance of the fund appropriated to Robinson & Co.
    From this decree Loucheim Brothers, Reis, Brown & Berger, L. Raney and A. Weller appealed.

      J. McMichael, for Loucheim Brothers,
    cited 2 Parsons on Contracts 771.

      D. B. & E. T. Kurtz, for Reis, Brown & Berger,
    cited Graff v. Pittsburg and S. Railroad, 7 Casey 489; Edinboro’ Academy v. Robinson, 1 Wright 210; Gibson v. Bellas, 2 Phila. R. 390.

      D. S. Morris, for Raney and Weller.

      J. A. Lowrie, for McCord & Co.

      H. Burgwin, for Robinson & Co.
   The opinion of the court was delivered,

by Sharswood, J.

These are appeals from a decree of the court below distributing the proceeds of the personal property of M. B. Wilson raised upon executions against him.

It appears that Wilson having become involved, and eight writs of fieri facias against him being in the hands of the sheriff, on the 22d of March 1869 procured his creditors, as well his general creditors as those who held executions, to execute an agreement by which the execution-creditors agreed to stay proceedings for four months, and the general creditors agreed to accept the judgment-bond of said Wilson to S. W. Dana, trustee for their use respectively, for the amount of their claims at six and eight months. It was stipulated as a term or condition of the arrangement that in case of executions issued on any of said claims the execution-creditors should have priority whatever the order of their being issued. It will he best to state now, in passing, that the plain meaning of the parties to the agreement was that in the event of executions issued upon the claims of any of the signers, those creditors who already had executions in the hands of the sheriff should have priority over all the others, but as between themselves without regard to the order in which their executions were issued. In other words, if the property should be insufficient to pay all, it should be distributed amongst them fro raid in proportion to their respective amounts. No other interpretation can be reasonably placed upon the language employed; and it cannot be doubted that all the signers of that agreement were bound in good faith to carry it out.

Loucheim Brothers were general creditors and signed- the agreement. They were returned by Wilson in the list exhibited to his creditors as entitled to $830. In point of fact his debt to them was $1600. To induce them to sign the agreement, he executed to them a judgment-bond for $800, payable in thirty days. It cannot be doubted, both upon principle and the authorities cited by the learned judge below, that this was a legal fraud upon the other signers, and the security as to them was void. But it was not void as to other creditors, not parties to that agreement. If by means of that security Loucheim Brothers obtained any legal advantage over others, they must be regarded in equity as trustees ex maleficio for the signers of the agreement, and according to its terms Loucheim Brothers having entered up this judgment and issued execution and thereby acquired the first lien, hold that lien as trustees for those entitled under the provisions of the agreement to which they were parties. It seems useless to elaborate an argument in support of a position which is so plain a dictate of common justice.

The next execution in order is that of McCord & Co. They were also signers of the agreement. No provision is made in the agreement that the claim of a creditor should be forfeited in consequence of having issued execution before the period of the stay was out. Their execution, like the first of Loucheim Brothers, is therefore in trust for the execution-creditors according to the terms of that agreement.

The next execution-creditors are Robinson & Co. They were not signers of the agreement, and of course are unaffected by any of its provisions. But as their executions are subsequent to those of Loucheim Brothers and McCord & Co., they have no claim, legal or equitable, to any part of the fund except what shall remain after satisfying these two first executions. The fraud of Loucheim Brothers was no fraud upon them,’ and they have no right to any advantage from it. McCord & Co. are not trustees for them. It seems very plain, then, that so much of the fund' as is necessary to satisfy the debt and interest upon those prior executions is in equity to be distributed to and among the eight execution-creditors who signed the agreement of March 22d 1869 fro raid in -proportion to their respective claims. The costs upon those executions are to be paid to ,the plaintiffs in the writs, or those otherwise entitled thereto.

The Manufacturers’ and Mechanics’ Bank v. The Bank of Pennsylvania, 7 W. & S. 335, a ease which arose upon an issue directed to try the right to the proceeds of real estate sold under execution, it was held that, although a mortgage imperfectly recorded is ineffectual as a lien against subsequent judgment-creditors, yet if there be a second mortgage between the first and the judgments in point of time, entitled to the proceeds, and this mortgagee had actual notice of the first mortgage when he took his own, the first mortgage is good as to him, and therefore entitled to have the money appropriated to it or so much thereof as is necessary to satisfy his claim. The creditors subsequent to the second mortgage could not come in till it was satisfied, and it cannot be until the first mortgage is. This was upon the principle previously settled in Wilcocks v. Waln, 10 S. & R. 380. There an insolvent was indebted to A. on a judgment, and to B. on a mortgage subsequent in date to the judgment, and to the United States on. judgments for duties. By the Act of Congress, the United States had a priority over the judgments, but not over the mortgage. ¡ As against the United States, B. was entitled to the money; but A., though having no right as against the United States, had a prior right as against B., and was therefore held entitled to the fund, f The principle settled in these determinations appears to us to rule this case.

Decree reversed, and record remitted to the court below that a decree may be there entered in conformity with this opinion.


text:
    Stitzell versus Reynolds and Wife.
    1. In slander the words laid and proved were, the plaintiff “ had stolen corn out of dribble's field.'' The defendant's point was “that if the jury believe the defendant spoke, and the bystanders understood him as referring to standing corn, the plaintiff could not recover.'' Held, that the point should have been affirmed.
    2. Calling one a thief for stealing a tree or other thing adhering to the freehold is not actionable.
    3. Charging one with wilfully taking fruit, &e., which is made by Act of Assembly a misdemeanor, is not actionable.
    4. To constitute slander the words spokeh must impute an offence both indictable and infamous.
    5. Conduct and words of the defendant after suit brought should not be submitted to the j ury as an element in assessing damages.
    6. Such evidence is proper in determining the question of malice with which the words charged had been spoken.
    November 15th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Fayette county: No. 47, to October and November Term 1870.
    This was an action on the case for slander, brought August 23d 1866, by Patrick Reynolds and Elizabeth his wife against Frederick Stitzell. The words laid in one count were that “ Mrs. Reynolds had stolen corn out of Gribble’s fieldin the second count that the plaintiff “ was confident that Patrick Reynolds’s wife stole Gribble’s cornthereby intending to charge her with larceny.

    The witnesses for plaintiff testified that the defendant had said that Mrs. Reynolds had passed through Gribble’s corn-field and had pulled the ears of corn and put them in her lap; two of the witnesses testified that when the defendant made these statements to them they understood him to refer to “roasting ears.”
    A witness testified that after suit brought and when the case was for trial, the defendant said to her that if she would as witness say that the words had been spoken by Gribble and not by him, he would give her a present.
    The defendant asked the court to charge the jury:—
    “ 2. That if they believe, from the evidence, that the defendant spoke the alleged words, and that the persons to whom he spoke them, or who heard them, understood him to refer to standing corn, the plaintiffs cannot recover.
    “ 3. That, if the conversation, in the course of which the alleged words were spoken, showed that the defendant had referred to standing corn, the plaintiffs cannot recover.” -
    The court (Gilmore, P. J.) refused the points. He charged:— * *
    “ As to the measure of damages there is no certain rule to be laid down for your guidance. Malice is the gist of the action. There is generally a less degree of malice in repeating a slander, than in originating one. So, if defendant was told by Mrs. Gribble, before uttering the words, that plaintiff had been guilty of the charge, the damages ought not to be so great as if he had never heard it, but conceived it himself. This would be the general rule, but we can very well imagine exceptions which would not warrant the exercise of the rule. The damages should also be modified on account of the nature of the article alleged to have been stolen. That is, if it was understood that the charge referred to the mere taking of roasting-ears, the damage to the reputation would not be so great as if it referred to the stealing of gathered corn. Taking apples, peaches, or fruit yet attached, and not separated from the soil, although done in a furtive manner, has never been accounted a felony, but is a kind of a larcenous trespass. By the Act of 1863 it is made a misdemeanor, and can be punished as such. Nevertheless, the damages should be such as, while it would vindicate the character of plaintiff, they should not be so large as to injure, materially, the estate of the defendant. They ought to be sufficient to vindicate and compensate the plaintiff for the' injury sustained, and [not so low as to leave a slur upon her character.]
    [“But if the evidence of Thomas Gribble is believed, the damages should be vindictive, and such as would be a punishment to the defendant. If that evidence is believed, he concocted an infamous scheme to destroy the character of the plaintiff, and purposed carrying it out by perjury. It is true this was after the suit was-brought, and was done, no doubt, as a defence against the- action.] But, if defendant felt that he had injured the plaintiff, his true course would have been sopiething in the way of reparation of the wrong, and not an effort to seal the slander through the instrumentality of perjury.” * * *
    The verdict was for the plaintiff for $318.
    The defendant took out a writ' of error and assigned for error the refusal of his points and the parts of the'charge in brackets.

      C. E. Boyle (with whom was A. Howell), for plaintiff in error.
    - — Standing corn is not the subject of larceny: 4 Black. Com. 232; Archbold’s Or. Prac. and PL 376, 378; 3 Greenl. Ev. 163. The Acts of March 30th 1860, Pamph. L. 362, May 1st 1861, | 2, Pamph. L. 478, Purd. 687, pi. 1, 3, make taking growing vegetables, &c., a misdemeanor merely and subject to a light punishment. The offence charged must be not only indictable but infamous: Gosling «.Morgan, 8 Casey 275. The plaintiff must show an intent to charge larceny: Barger «. Barger, 6 Harris "492. Whether she so intended was for the jury: Dottarer «. Bushey, 4 Harris 208; Evans «. Tibbins, 2 Grant 451; Colbert «. Caldwell, S Id.-191; 1 Starkie on Slander 93, 99-101; Dexter «. "Faber, 12 Johns. R. 239; Van Rensalaer «. Dole, 1 Johns. Cas. 279; 2 Saunders’s Pl. and Ev. 899; Findlay v. Bear, 8 S. & R. 570; Harvey v. Boies, 1 Penna. R. 12; Proper v. Luce, 3 Id. 66. As to damages: 2 Greenl. Ev. § 418; Eckart v. Wilson, 10 S. & R. 53.
    February 9th 1871,

      W. H. Playford, for defendant in error,
    cited Eckart v. Wilson, Colbert v. Caldwell, supra; Deford v. Miller, 3 Penna. R. 104; Lukehart v. Byerly, 3 P. F. Smith 418; Andres v. Koppenheafer, 3 S. & R. 257.
   The opinion of the court was delivered,

by Williams, J.

This case has been already once before us, and is reported in 9 P. F. Smith 488. There the judgment was entered generally on the first three counts of the declaration; the first of which, charging a mere trespass, was held to be vicious, and the judgment was reversed and a venire de novo awarded. On the retrial, the declaration was amended by striking out the first and fourth counts, and the cause was tried on the second and thir'd counts, and resulted in a verdict and judgment for the plaintiffs. The record is now brought before us for the correction of alleged errors of the court in refusing to charge as requested by the defendant, and in the instructions given to the jury for their guidance in assessing the damages.

The words charged to have been spoken by the defendant, as laid in the second count of the declaration, are, that “ Mrs. Reynolds had stolen corn out of Gribble’s field;” and, as laid in the third count, that he was confident that Patrick Reynolds’s wife stole Gribble’s corn.” The court was requested, in the second point submitted by the defendant, to instruct the jury that if they believe from the evidence that the defendant spoke the alleged words, and that the persons to whom he spoke them understood him to refer to standing corn, the plaintiff cannot recover; and, in the third point, that if the conversation, in the course of which the alleged words were spoken, showed that the defendant had referred to standing corn, the plaintiffs cannot recover. The court refused to charge as requested, and instructed the jury that the words laid in both counts are actionable; and, if the evidence is believed, they are substantially proved as laid, which is all that is necessary to maintain the action. The first and second assignments of error relate to the refusal of the court to affirm the defendants’ points, and as they raise but one question, may be considered together.

By the rules of the common law, larceny cannot be committed ■ of things that adhere to the freehold, as corn, grass, trees, plants, and the like, for they are parcel of the realty; and the severance and carrying of them away, if by one and the same continued act, is a mere trespass. And hence it was held that calling one a thief for stealing a tree, or other thing adhering to the freehold, is not actionable because secretly severing and carrying away such things for the sake of gain is not a felony, hut a mere trespass. But now, by the Act of 17th April 1861, Pamph. L. 322, extending the local Act of 30th March 1860 throughout the Commonwealth, the wilful taking and carrying away of fruit, vegetables, plants, &c., whether attached to the soil or not, is declared to be a misdemeanor, and made punishable as such by fine and imprisonment. If under the provisions of this act taking and carrying away standing corn is no longer a mere trespass, but a misdemeanor punishable by indictment and imprisonment, it does not follow that words, charging the larceny of standing corn, are actionable. For, in order to render words spoken of a private person actionable, they must impute not only an indictable offence, but one of an infamous character, or subject to an infamous or disgraceful punishment: Dottarer v. Bushey, 4 Harris 204; Gosling v. Morgan, 8 Casey 273; Stitzell v. Reynolds, 9 P. F. Smith 488. If then the defendant, in speaking the words laid in the declaration, intended to charge the plaintiff with the larceny of standing corn, or “roasting ears” growing on the stalks attached to the soil, and was so understood by the persons in whose presence they were spoken, he was imputing to her an indictable offence; but he was not imputing an offence of an infamous character, or one subject to an infamous or disgraceful punishment; and, therefore, by the well-settled law, the words are not actionable. But if the defendant intended to charge her with stealing corn severed from the ground or stalks on which it grew, though it may not have been husked or garnered, the words aré actionable because they impute a felony, the punishment for which the law regards as infamous. As there was evidence tending to show that the words, spoken by the defendant, referred to standing corn or “roasting ears,” as understood by the witnesses, the court ought to have affirmed the defendant’s points and left it to the jury to determine, whether the words, as proved by the witnesses, amounted to a charge of theft, or a mere misdemeanor, with the instruction that if the defendant, in speaking the words, intended to charge the plaintiff with stealing corn not attached to the soil, the words were actionable; but if he meant to charge her with the larceny of standing corn or “roasting ears,” then the words, as they amounted only to a charge of misdemeanor, were not actionable. It is perhaps to bé regretted that the law should make any such distinction as to. the' actionable character of the words. There is but little difference in the turpitude of the offence charged, in whichever sense the words may have been spoken; and there is perhaps as little foundation in reason or morals for the distinction which the law makes. But it exists, and cannot be gainsaid. In the one case the act is theft, in the other a trespass, or at the most, a mere misdemeanor. And it is settled by an unbroken current of decisions, running through the whole history of the common law, that words spoken of a private person are not actionable unless they impute an indictable offence, of an infamous character, or subject to an infamous or disgraceful punishment. If a count charging a mere trespass is vicious, and will not support a judgment in slander, as we held when this case was here before, surely the proof of words, which amount only to the charge of a trespass, or misdemeanor under the statute, will not sustain the charge in either of the counts in this case or the judgment thereon. As it respects the plaintiff’s right to recover,'it makes no difference whether the defect appears in the pleadings or evidence — if either shows that only a trespass or misdemeanor is charged, the plaintiff is not entitled to maintain the action.

We come now to consider’the alleged errors in the charge on the question of damages. And the first matter complained of is, that the court erred in charging the jury that the damages ought not to be so low as to leave a slur on the plaintiff’s character. It is urged that the jury must have regarded the instruction as binding, but taken in the connection in which it was given, we do not see that it was calculated to mislead the jury, or to stimulate them to find a greater amount of damages than they otherwise would, under the impression that the instruction was binding. The court told the jury that while the damages ought to be such as to vindicate the character of the plaintiff, they should not be so large as to injure, materially, the estate of the defendant. They ought to be sufficient to vindicate and compensate the injury sustained, and not so low as to leave a slur on her character. There is nothing in this instruction of which the defendant has any right to complain, and the error is not sustained.

But there is more of substance in the last assignment. The court charged the jury that if the evidence of Thomas Gribble is believed, the damages should be vindictive. And the reason given by the court for this instruction is: “ If that evidence is believed, he concocted an infamous scheme to destroy the character of the plaintiff, and purposed carrying it out by perjury. It is true that this was after the suit was brought, and was done, no doubt, as a defence against the action.” We think there was error in this instruction. It encouraged and stimulated the jury, if they believed the evidence of Gribble, to find vindictive damages not because of the malice with which the words were spoken by the defendant, as shown by his subsequent acts and declarations, but because of the infamous scheme which he had concocted to destroy the plaintiff’s character, and which he had endeavored to carry out by attempting to suborn the witness. The jury should have been told that while they might consider the degree of malice with which the words were spoken, in assessing the damages, as shown by the subsequent acts and declarations of the defendant,.they could hot give damages for such acts and declarations, however infamous or criminal they might be.

For the reasons given the judgment must be reversed, and the cause sent back for another trial. Whether the plaintiffs are entitled to recover depends upon the sense in which the words were spoken, and this is a question which the jury alone have the power to determine.

Judgment reversed, and a venire facias de novo awarded.


author: by Read, J.

text:
    Phelan versus Moss.
    1. 'Moss signed a note payable to Benton or bearer, which was a fraud on Moss. Phelan bought it from a holder boná fide for value, and without notice of the fraud. Held, that he could recover from Moss.
    2. A holder of a negotiable note bon& fide for value, without notice, can recover it, notwithstanding he took it under circumstances which ought to excite the suspicion of a prudent man.
    3. In order to destroy such holder’s title, it must be shown that he took the note malfi fide.
    4. The doctrine as to the title of the holder of a note, fraudulent as between the original parties, discussed, and the authorities examined in this case.
    5. G-ill v. Cubitt, 3 B. & 0. 466, not law in Pennsylvania: Beltzhoover v. Blackstock, 3 Watts 20, criticised.
    November 15th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Greene county: Of October and November Term 1870, No. 205.
    This was an action of assumpsit brought, December 11th 1868, by R. H. Phelan against Jennings J. Moss.
    On the trial, before Gilmore, P. J., the plaintiff having given evidence of the handwriting of the defendant, gave in evidence the following note, viz.:—
    “ Six months after date, I promise to pay to George W. Benton or bearer two hundred and fifty dollars, for value received, with use, without defalcation. Township of Aleppo, dated June 10th 1868.
    “Jennings J. Moss.”
    (15 cent stamps cancelled by writing on them, June 10th 1868.)
    The plaintiff testified that he bought the note, November 16th 1868, from, a man who said his name was W. B. Goff; he gave $100 for it; Goff said he did not know what the note was given for, he had got it in New York in a trade.
    The defendant then gave evidence under objection and exceptions, viz.: The defendant testified that he never gave the note; that he did not write the signature. In June 1868 he met a man named Benton, he was riding in a carriage, and asked defendant to be an agent for selling washing machines, telling him he would give him half the price of the machines sold. The defendant consented, the machines were to be sent by express to Cameron. The man said he wished something to show the agreement; he wrote an instrument and read it to the defendant; at the end of the contract defendant was to give him half the price of the machines sold; defendant signed it, he did not read it, not having his spectacles; the paper was “as large as a half sheet.” The machines never came to Cameron; defendant saw no stamps on it.
    H. McKay testified that about the same time a man met him with a similar proposition, to which he consented; the man said there was usually an agreement with agents; he produced a paper partly printed, and offered witness pen and ink to sign it; witness discovered that the paper could be separated, and the lower part become a note; witness then refused to sign; shortly after, the defendant passed along on the same road on which the man went; the note in suit was in the same form as that shown to the witness. There was other evidence of a similar character.
    The plaintiff requested the court to charge: — ■
    2. That if the jury believe the evidence of R. H. Phelan, they may find from it that he had paid $100 in cash for the note when he bought the same, and that he bought it before maturity of one W. B. Goff, and that neither he nor Goff had notice of the circumstances under which the note was given, and there was nothing in the conduct of W. B. Goff which suggested to R. II. Phelan that the note had been obtained from the defendant unfairly; and if they so find the facts, the plaintiff is entitled to recover the amount of the note, even if the jury should believe the same was procured from the defendant by George W. Benton by fraud and false representations.
    3. That the note in suit being payable to George W. Benton or bearer, and having before maturity been in the possession of W. B. Goff, against whom there is no evidence of notice of the original transaction, or of circumstances to put him upon inquiry, the law protects it in the hands of every subsequent holder for value, and the plaintiff is entitled to recover the amount of the same, notwithstanding all the facts relied upon as a defence in this case.
    The court refused the points and charged:—
    “ If the defendant did not sign the note there is an end of the case, and the plaintiff cannot recover. But if you find he did make the note, other questions arise.
    “ The uncontradicted evidence is that Moss received no consideration, but the whole was a fraud- and swindle. But it is strictly a commercial note — what is called negotiable paper, and came into possession of the plaintiff before it was payable and for valuable consideration, can the defendant resist the payment of the note.in the hands of the plaintiff? We have allowed evidence to go to you which we think, if believed, should have put plaintiff upon inquiry; this inquiry strictly pursued would have let him into a knowledge of the fraudulent character of the note. There was no endorsement on the note. Goff the negotiator was a stranger. It was purchased by plaintiff for $100. The note was for $250, and the drawer known to be solvent. The stamps not properly cancelled, no initials of name upon them, and in fact no cancellation whatever. No evidence that the immediate holder before this sale, or any one before him, had- paid valuable consideration for the note. If you find these are the facts, it is our opinion, and we so instruct you that the plaintiff cannot recover.”
    The verdict was for the defendant.
    The plaintiff removed the case to the Supreme Court, and assigned for error the admission of the evidence and the refusal of his points.

      A. A. Purman, for plaintiff in error.
    The evidence did not show constructive notice to the plaintiff, and Goff’s innocence would protect him: Story on Prom. Notes, § 197, and notes; Goodman v. Stephens, 4 Ad. & E. 870. The facts were not suspicious : Belmont State Bank v. Hoge, 6 Am. Law Reg. N. S. 230. In such case as this there is no question as to diligence, &c.: Raphael v. Bank of England, 33 Eng. Law & Eq. 276; Worcester Bank v. Dorcester Bank, 10 Cush. 488; Goodman v. Simonds, 20 How. 843; Bay v. Caddington, 5 Johns. 54; Ellicott v. Martin, 6 Md. 509; Matthews v. Poythress, 4 Ga. 287; Magee v. Badger, 30 Barb. 246. Goff’s possession was prima facie evidence that he was a holder for value: Snyder v. Riley, 6 Barr 168; Hutchinson v. Boggs & Kirk, 4 Casey 294; Milner v. Dawson, 5 Exch. 948. Having purchased in good faith, he had a right to sue: Allaire v. Hartshore, 1 N. J. 665; Chicopee Bank v. Chaquin, 8 Met. 40; Youngs v. Lee, 18 Barb. 187; Simpson v. Clark, 2 Cromp., M. & R. 342; Brown v. Mott, 7 Johns. 361; Edwards v. Jones, 7 Car. & P. 633. One who advances money bon& fide in the purchase of negotiable paper, is a holder for value: Swift v. Tyson, 16 Peters 15; Bosanquet v. Dudmon, 1 Stark. R. 1; Ex parte Bloxham, 8 Ves. 531; Haywood v. Watson, 4 Bing. R. 496; Braman v. Roberts, 1 Bing. New Cases 469; Brush v. Scribner, 11 Conn. 388; 3 Kent’s Com. 81; Beltzhoover v. Blackstock, 3 Watts 24; Besbing v. Graham, 2 Harris 14; Bullock v. Wilcox, 7 Watts 328; Harrisburg Bank v. Meyer, 6 S. & R. 537; Knight v. Pugh, 4 W. & S. 445. It is not a defence that there was no original consideration : Whittaker v. Edmonds, 1 Moody & R. 366; or the consideration was illegal: Morris v. Langley, 19 N. H. 423; or the note obtained by fraud or stolen: Powers. Ball, 27 Vt. 662. The same principle is in Lord v. Ocean Bank, 8 Harris 384; Callen v. Fawcett, 8 P. F. Smith 113; Story on Prom. Notes, § 191; Edwards on Bills and Notes 294; Haly v. Lane, 2 Atk. 182; Chalmers v. Lanior, 1 Cowp. R. 383; Robison v. Reynolds, 2 Ad. & E. N. S. 196.
    January 3d 1871,

      E. M. Sayers, for defendant in error,
    cited 3 Kent’s Com. 82; Snyder v. Riley, supra; Bay v. Coddington, 5 Johns. Ch. R. 56; Ayer v. Hutchins, 4 Mass. 370.
   The opinion of the court was delivered,

by Read, J.

The law of bills of exchange owes much of its scientific and liberal character to the wisdom of the great jurist of his age, Lord Mansfield, who was sometimes in advance of his contemporaries in attempting to introduce equitable principles in suits at common law. What was then disapproved would now be approved; and Lord Penzance in the House of Lords supported the proposition, that when law and equity conflicted, the equitable principle should prevail.

Sixteen years before the American Revolution, Lord Mansfield held, in Miller v. Race, 1 Burrow 452, that bank notes, though stolen, became the property of the person to whom they are bond fide delivered for value, without knowledge of the larceny. Forty-three years afterwards, in Lawson v. Weston, 4 Esp. 56, Lord Kenyon held, that if a bill has been lost, and the loser has advertised it in the newspapers, and it is discounted for the person who found it, and so came fraudulently by it, this entitles the person discounting it to recover the amount, if done bond fide, and without notice of the way in which the holder became possessed of it. Lord Kenyon said: “ I think the point in this case has been settled by the case of Miller v. Race, in Burrow. If there was any fraud in the transaction, or if a bond fide consideration had not been paid for the bill by the plaintiffs, to be sure they could not recover; but to adopt the principle of the defence to the full extent stated, would be at once to paralyze the circulation of all the paper in the country, and with it all its commerce.”

The principle established by these decisions remained the undoubted law of England for sixty-six years, until Lord Chief Justice Abbott, in Gill v. Cubitt, 3 B. & C. 466, propounded the novel and dangerous doctrine, that although the holder had given full value for the bill, if he took it under circumstances which ought to have excited the suspicion of a prudent and careful man, he could not recover. The Lord Chief Justice said, “ for these reasons, notwithstanding the unfeigned reverence I feel for everything that fell from Lord Kenyon, by whom Lawson v. Weston was decided, I cannot think the view taken by that learned lord at that time was the correct one.” This cautious ruling, although carped at and quarrelled with, remained the law for ten years, when the discredit of the Bank of England hills on the continent, and the complaints of the commercial community, brought the matter before the King’s Bench—which had been remodelled — for consideration: Crook v. Jadis, 5 Barn. & Ad. 909; and Backhouse v. Harrison, Id. 1098, were followed by Goodman v. Harvey, 4 Ad. & E. 870, in which Lord Henman said, “ we have shaken off the last remnant of the contrary doctrine. Where the bill has passed to the plaintiff without any proof of bad faith in him, there is no objection to his title.”

In the ninth edition of Chitty on Bills, by Chitty and Hulme, published in 1848, it is said, “ and the case of Goodman v. Harvey has since finally decided, that even gross negligence is not alone enough to destroy the title of a holder for value; but that a case of mala fieles on the part of such holder must ho made out in order to defeat his claim. So that the doctrine of Lord Tenterden is now completely exploded, and the old rule of law, ‘ that the holder of bills of exchange endorsed in blank, or other negotiable securities transferable by delivery, can give a title which he does not himself possess to a person taking them bond. fide for value,’ ‘is again re-established in its fullest extent.’ ”

The same doctrine is repeated in the tenth edition by Russell and MacLachlan, of 1859, p. 179; and also in Byles on Bills, fifth American, from the ninth London, edition, with notes by my brother Sharswood, p. 280.

The rule therefore adopted by the English courts one hundred and twelve years ago, and which has stood the test of the practice and experience of the greatest commercial country of modern, times, is now the undisputed and settled law of England.

In Brush v. Scribner, 11 Conn. 388, Chief Justice Williams, in 1836, in the course of a long and learned opinion, asserted the same doctrine, quoting Miller v. Race, Crook v. Jadis, and Backhouse v. Harrison, in support of it. In Worcester County Bank v. Dorchester and Milton Bank, 10 Cush. 488, in 1852, the Supreme Court of Massachusetts, quoting Goodman v. Harvey and kindred cases, held, that if he took the bill in good faith he is entitled to recover on it. “ The burden of proving good faith is all the burden which the law imposes on him.”

In Hall v. Wilson, 16 Barb. 548, in 1853, Judge Allen, citing Crook v. Jadis and the subsequent eases, says, “ the doctrine of the cases last cited has been adopted and approved by the courts of some of the states of the Union, and I have met with no case in our own courts in conflict with it.” This case is recognised in Magee v. Badger, 30 Barb. 246.

In Swift v. Tyson, 16 Peters 1, it was held that a boná fide holder of a negotiable instrument for a valuable consideration, without any notice of the facts which impeach its validity as betA^een the antecedent parties, if he takes under an endorsement made before the same becomes due, holds the title unaffected by these facts, and may recover thereon, although as between the antecedent parties, the transaction may be without any legal validity; and it was also held that the holder of negotiable paper before it is due is not bound to prove that he is a bond fide holder for a consideration, without notice; for the law will presume that, in the absence of all rebutting proof, and therefore it is incumbent on the defendant to establish, by way of defence, satisfactory proof of the contrary, and thus to overcome the primd facie title of the plaintiff.’

In Goodman v. Symonds, 20 How. 343, these principles were again affirmed, by the unanimous opinion of the Supreme Court of the United States recognising the decision of Goodman v. Harvey in its fullest extent.

This doctrine is approved in Story on Bills of Exchange, § 416 ; Edwards on Bills 506; 2 Parsons on Bills 277, 278, 279 ; and in the 6th edition of Story on Prom. Notes, 1868, § 382. The statements in Judge Story’s works on bills of exchange and promissory notes, Ave know, by Swift v. Tyson, to have been his deliberately'formed opinions.

There are no 'reported cases in Pennsylvania on bills of exchange and promissory notes prior to the Revolution, and but nine in 1 Dallas, twenty-one in the three other volumes, and fourteen in the four volumes of Yeates. In The Bank of North America v. McKnight, 2 Dallas 158, in 1792, Chief Justice Mc-Kean said, “ before the Revolution it was not usual to give notice to the endorser as soon as a note became due.; it would have been considered as harsh and unreasonable. But since the establishment of the bank, a rule has been introduced; and as these notes lodged in the bank were often accommodation-notes, it was highly reasonable that notice should be given in a short time. What that time ought to be has not been determined. Two or three months atouM certainly be too long, and a day may be too short. I would .not singly lay down a rule, but leave it to the jury as a question of fact.” The notice given in this case was four .or five days after the note became due, which was in 1786, and the verdict was for the plaintiff.

The seat of the general government, from 1790 to 1800, was in Philadelphia, and it speedily became a place of great commercial importance. In order to give promissory notes made in Philadelphia, in a particular form, their full commercial value, the Act of 27th February 1797, making them not liable to any plea of defalcation or set-off, was passed, which act was rendered useless by the decision of the Supreme Court, in 1838, in Bullock v. Wilcox, 7 Watts 328, restoring the universal commercial law to all promissory notes made in any part of the state.

I am aware that Judge Sergeant, in Beltzhoover v. Blackstock, 3 Watts 20, in September 1834, before the cases shaking Gill v. Cubitt were published in America, and a year and a half before it was overruled, used this language: “And I concur in the position that if an endorsee takes a note heedlessly, and under circumstances which ought to have excited the suspicions of a prudent and careful man, the maker or endorser may be let into his defence: Gill v. Cubitt, 3 B. & C. 466; 3 Kent’s Com. 53.” But the principle thus stated was not necessary to the decision of the case before the court, nor was it used by the learned judge, but he used expressions looking to the .older doctrine, as “ it would he hard to subject a man to the consequences of mala fides, when perhaps he never had knowledge of the matter alleged.” The citation of 3 Kent’s Com. 53 is from the first edition published in 1828, when Lord Tenterden’s doctrine was apparently the law of England. In the 3d edition of 1836, p. 82, the text was left unaltered, but in a note, Backhouse v. Harrison, Crook v. Jadis, and 2 Myl. & K. 638 are cited, with the remark, “ so that the case of Gill v. Cubitt seems to be somewhat weakened.” In the 4th edition of 1840, p. 82, the same note is preserved, with the addition of Goodman v. Harvey. All these editions were edited by Chancellor Kent.

In the preface to the 9th edition of Chitty on Bills, published in 1849, the editors, Messrs. Chitty and Ilulme, say: “ Of the various decisions which have taken place on the bills of exchange, perhaps'the most important are those which .establish in contradiction to the doctrine laid down by Lord Tenterden, that the claim of a boná fide holder of a bill which has been lost or fraudulently obtained, is not to be defeated .by his having taken it under circumstances which ought to have excited the suspicion of a prudent man; but that in order to destroy the holder’s title, he must be shown to have taken the instrument mala fides. The rule thus established, not only relieves bills and notes from the clog, which a contrary doctrine is calculated .to impose on their negotiability, but presents at once a clear and intelligible question for the consideration of a jury; while to leave it to a jury to determine as to the degree of caution which a prudent man must exercise on taking such an instrument, leads to much perplexity and frequent injustice.”

In the eleventh edition of Kent’s Commentaries by Judge Comstock, in 1866, vol. 3, p. 103-4, there is -added to the note “ so that the case of Gill v. Cubitt seems to be somewhat weakened if not destroyed.” “Mr. Justice Story (Story on Bills 216) considers the doctrine in Gill v. Cubitt as absolutely overruled and abandoned.”

The case of Gill v. Cubitt was decided whilst Chancellor Kent was lecturing and writing his commentaries, and he took the doctrine of an eminent judge, Lord Tenterden, as a correct exposition of the English law, without any thorough examination, and without the aid of the subsequent decisions, restoring the rule of Lord Mansfield.

In McLaughlin v. Commonwealth, 4 Rawle 464 (21st February 1834), which was an indictment for stealing three promissory notes, commonly called bank notes, on the Bank of the United States, .Judge Kennedy speaking of notes which had not been issued, or if issued had been paid in, being robbed or stolen from the bank said, “ for I have no doubt but the bank would be liable to pay notes thus stolen from it, after they had come into the hands of boná fide holders, although they might have received them from the thief himself.” “Being in negotiable form and for the payment of money, they are considered as part of the circulating medium of the country, and the man who is about to receive them in payment, in the ordinary course of his lawful business is no more bound to inquire how and by what means the holder came by the possession of them, and whether they were obtained from the bank by its consent or not, than he is bound to inquire of his debtor who offers to pay him in dollars coined at the mint of the United States, how he came by them and whether or not they were obtained lawfully from the mint.”

Taken in connection with the case of Bullock v. Wilcox cited above, where it was held that “ the boná fide holder for value and without notice of a negotiable note made to A. B. or bearer, is entitled to recover on it against the maker, free from all subsisting equities between the original parties, and particularly considering the language of the learned judge (Kennedy) in delivering the opinion of the court, there is little doubt of their approval of the old doctrine of Miller v. Race, and I can draw no other conclusion from the language used by Judge Rogers in Bisbing v. Graham, 2 Harris 14.

The law is clearly stated in 1 Smith’s Leading Cases, vol. 1, part 2d, p. 749, 750, Am. ed. 1866, and at page 752 in the American note it is said, “ in Dickson et al. v. Primrose et al., 2 Miles 366, it is said that the plaintiff must prove he gave full consideration, and in some cases he must even show that he took it without any circumstances of suspicion or his ownership will not be held boná fide.’ But in a later case that court adopted the principle of Backhouse v. Harrison, and decided that the defendant must prove fraud.” The case in 2 Miles was decided on the 11th January 1840. It was upon a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, ■which disclosed a case in which as-between the original parties to the bill the drawee could not have recovered. It is clear this would call on the holder to prove value, and this was a sufficient reason to refuse judgment. The other case was that of a stolen note from a counting-house in Philadelphia, and sold by a stranger at Harrisburg to a respectable lawyer at a considerable discount, and I gained the cause by having in my possession the only copy of the ninth edition of Chitty on Bills in the city. I believe this ruling has been uniformly followed by that court.

It has been held in several cases, and is undoubted law, that the endorsee in a suit by him against the maker of a promissory note, cannot be called on to prove consideration, until the defendant has shown it was obtained or put into circulation by fraud or undue means: Knight v. Pugh, 4 W. & S. 445; Brown v. Street, 6 Id. 221; Hutchinson v. Boggs & Kirk, 4 Casey 294; Gray’s Adm’rs v. Bank of Kentucky, 5 Casey 365.

In the case before us the evidence clearly shows that the defendant, induced by the promise of being an agent to sell Benton’s patent Washing-machines, signed a note payable six months after date to George W. Benton, or bearer, for $250 dollars, for value received, with interest, without defalcation. Township of Aleppo, dated June 10th 1868. The young man to whom he gave it, is described as twenty or twenty-five years of age, had a two-horse buggy, with dark chestnut mares, and said he was agent for selling washing-machines of a man of the name- of Benton. The allegation of the defendant is that he signed a contract, but not the note. But it is clear he signed the note, but under circumstances which would prevent a recovery between the original parties.

Assuming that it was a fraud, then the question recurs, was the plaintiff a boná fide holder for value, without notice of the fraud. It was purchased by him on the 16th November 1868, from a man who said his name was W. B. Goff, who gave him a receipt showing the amount paid him for the note. He gave him $100 in cash for the note. “ He told me he did not know what the note was given for; said he had got it in New York on trade. The man was fifty or fifty-five years of age. He said he resided in the state of New York.” There is no evidence that the plaintiff had any notice of the fraud, nor that Goff had, nor, according to the defendant’s story, had he any notice or knowledge of it at that time.

The cause was tried by the learned judge upon a misconception of the law, as appears by his answers to the 2d and 3d points, and by his charge to the jury.

The learned judge said, “We have allowed evidence to go to you, which we think, if believed, should have put the plaintiff upon inquiry. This inquiry strictly pursued would have let him into a knowledge of the fraudulent character of the note.” This could not have been ascertained except by going to the maker himself. This is not the law, nor are the subsequent objections. “ There was no endorsement on the note.” It was payable to bearer, and the holder gave a receipt for the amount paid. “ Groff, the negotiator, was a stranger;” this is no objection. “It was purchased by plaintiff for $100, the note was for $250 and the drawer known to be solvent,” nor is this; nor that in cancelling the stamp the initials were omitted. The most extraordinary, however, is the objection that no “evidence that the immediate holder before this sale, or any one before him, had paid valuable consideration for the note,” a doctrine that would put an end to all negotiable paper. Neither one nor all these facts, if found by the jury, proved mala tides on the part of the holder, or brought home to him knowledge of the fraud; but, on the contrary, it was clear that he was a boná fide holder for value without notice, and of course entitled to recover.

The court were, therefore, wrong in instructing the jury that the plaintiff could not recover.

Judgment reversed, and venire de novo awarded.