text:
      Court of Common Pleas, Dauphin County,

      February 7th, 1854.
    Mumma, Guardian of Gottshall, etc., v. Harrisburg, Portsmouth, Mount Joy, and Lancaster Railroad.
    When a railroad was laid out during the lifetime of a deceased person, but no damage was done till after his death, the guardian of his minor children is the proper person to sue for those damages, even if the property had been sold after they were done.
   By the Court.

To this report of viewers and assessment of damages numerous exceptions have been filed. The first is in the nature of general errors, and amounts to nothing. If defects exist they must be specified. The second and third, whether the guardian is or is not the proper person to institute these proceedings in the name and for the use- of his ward, depends on the facts of the case. It appears from the evidence, that this railroad was located through the premises of William Gottshall on the site of an old turnpike. In the fall of 1849, stakes were set along the road, indicating the extent and location of the cutting and filling in to constitute the grade. Much of the general grading of the road was done that fall; but on the loms in quo none was required, as the surface of the turnpike was adopted as the bed of the railroad. A culvert was partly dug on these premises that fall and the following spring; but neither that work nor striking in the stakes by the engineers did any substantial injury to the land. Mr. Gottshall died on April 7th, 1850, and after his death the railroad company laid the cross-ties, filled in the ballast, and constructed the railroad, which was completed during the spring and summer. All the witnesses agree that nothing was done on these premises during the decedent’s lifetime, which did any injury whatever. The road was completed and first commenced to be used long after his death. The principle is clearly settled that for trespasses committed to the freehold during a man’s lifetime, a right of action accrues to his personal representatives, who would have been the proper persons to sue for all damages so done; but on his death the freehold at once descends to his heirs, in the absence of any will, and all trespasses committed afterwards are against their property. If the common-law remedy by action was permitted here, and the executors of Gottshall had brought trespass, they could have recovered at most but nominal damages. There was not even an entry on the premises of the decedent in his lifetime. The stakes were stuck in the turnpike, the right to the soil of Which passed by grant to the railroad company. The culvert we understand to have been excavated on the margin of the road, and to have done no injury. The fences were removed and road constructed after his death. It seems to be settled in two reported cases, Schuylkill Navigation Company v. Thoburn (7 S. & R. 411) and Zimmermann v. The Union Canal Company (1 W. & S. 346), that the damages should be completed before the proceedings are instituted, and should be commenced and carried on in. the name of the then owner. The act of Assembly in that case was worded substantially like the one under consideration. "William Gottshall made a will by which an interest, with the right to exclusive possession of these premises, were given to his widow until the youngest child attained full age, provided she remained unmarried; this was in lieu of dower. But the evidence clearly shows that she renounced the bequest, and refused to take under the will; and that this was done under the advice of the executors. The real estate then descended immediately to the heirs, as the widow’s interest was divested by her own act. The law cast both the right and the possession on the heirs. They remained in the actual possession, so far as we know, during the whole time the defendants were constructing that part of the road which substantially injured the freehold. On the 31st of March, 1851, the executors of Gottshall sold this land under an order of the Orphans’ Court for the payment of debts; at that time the road-was completed, and the legal presumption is, that the property sold for so much less as it was injured by the railroad, including all danger of future damage from the mode of travel by locomotives, and all accidents therefrom. These minor children being the owners of the premises when the injury was done, are the proper persons to sue, through their guardian or next friend, notwithstanding the sale, which took place without their consent. But even in the case of a voluntary sale, a man shall have trespass for a wrong done before. 2 Roll. 569, I. 20. A tenant for years may maintain trespass after he has quit the premises for an injury to the growing crop. 5 Binn. 285; 9 John. 108; 4 Mass. 266. These principles I have scarcely ever heard controverted, .and the point appears to have been recently decided by the Supreme Court at Pittsburg. Had this been a common-law action, the suit should have been commenced in the name of the minors by their guardian. But the petition, although in the guardian’s own name, yet sets forth those of his wards, and claims for them. Therefore it is substantially right. It would have been improper to include the name of the widow in a common-law action of trespass, as she is only entitled to dower out of the premises after her renunciation, and could not maintain trespass for an injury done to the freehold. She is not seized of an undivided part with the heirs. Hobart, 181; 9 Mass. 13. She has no interest in or right to the freehold, until her dower is assigned to her. It may be true that the hens recover a portion of these damages for her use, but she has no interest in them till after recovery. Therefore her name was very properly omitted in the proceeding. The only remaining exception relates to the amount of damages. Although in a proper case this court will refuse to lend its sanction to an assessment of damages which appears to be exorbitant or made on wrong principles, yet we must have evidence before us to show that the inquest was in error. The only circumstance urged here to show it, is the amount paid for the premises by William Gottshall, in 1845, and the sum for which they were sold in 1851; whilst on the other hand it appears that very considerable improvements were made after his purchase, probably sufficient to more than cause the difference; and the court is well aware that property was generally on the increase in value during that whole period. We must rather trust to the opinion of the inquest, composed of practical men, who viewed the premises, than set up our own judgment, unaided by personal inspection or definite evidence to correct it. We think there is no error in this proceeding, and therefore direct the report of the inquest to be affirmed.

Mvmma, for plaintiff.

Lamberton, for defendant.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
      Court of Common Pleas, Dauphin County,

      September 23d, 1854.
    Gambers, for the use of Parry, v. Robinson.
    A party for vliose use a suit is brought is liable for all the costs from the beginning of the action.
   By the Court.

The defendant m this case claims to recover the costs as taxed from Dr. Evans, probably the only solvent plaintiff named on the record. It appears that the suit was originally brought for the use of C. B. Parry, but on the day of trial, to wit, February 16th, 1852, and before the same took place, was marked for the use of C. B. Parry. When Dr. Evans became interested in the claim, does not appear. The questions raised is, can the costs from the commencement of the action be collected from Evans, or is he only liable-for those accruing after the assignment of the claim for his use? Secondly, which party is to show when the claim was assigned to him ? His name being on the record at the time of trial, and judgment in favor of the defendant, the act of Assembly of 1829 authorizes an execution to be issued against him for the costs. We have no doubt that it will be presumed that he was interested from the beginning, unless lie shows the contrary. The writ goes against him as a legal party under the act ; and if he desires to be relieved he must show his liability- to be for less than the whole. He alone has the means of proving when he obtained or became interested in the claim. The defendant is therefore entitled to have an execution for his costs from the commencement of the suit. Under the first branch of the question we also think Dr. Evans liable for all the costs in the case. Such appears to be the true construction of the act of Assembly, and was the law of Pennsylvania before its passage. Though prior thereto the legal remedy was by an order of court enforced by attachment; whilst the act gives process by execution. Where a person buys a claim before suit is brought, and uses the name of his vendor for its recovery, without having the use stated on the record, he could always be obliged to pay the costs of the controversy, in case of failure. If he purchased it pending a suit for its recovery, he took it own onere, and must defray all the previous costs should he fail. In Canby v. Ridgway (1 Binn. 496), the person who took an assignment of the claim pending an action was ordered to pay the costs; and no distinction was made between those arising prior and subsequent to the assignment. In Gallagher v. Milligan (3 Penna. 177), it was held that a party, not named on the record, was incompetent to testify, if he originally had an interest in the matter in controversy, being liable for costs. In 7 W. & S. 162, Judge Rogers seemed to think that the costs would be apportioned, and the party would only be liable during the time he held the claim; but that does not appear to have been the point in the case, nor much considered; and the whole distinction of interest in the witness, as there referred to, is overruled in later cases. In Blood v. Harrington (8 Pick. 552), it is said “ that a proehein ami, whose name is entered as such on the record long after the institution of the action, is liable for all costs from the beginning.” Where a party entered himself as interested in an ejectment long after suit was brought, he was held liable for costs from the beginning. 4 Gratt. Va. R. 129. The very point appears to have been ruled in Jordan v. Sherwood, 10 Wend. 622. A rule was asked on a party in interest, though not named on the record, to pay defendant’s costs on failure in the action. It was objected that he did not become interested until long after the commencement of the action, and a large portion of the costs had been incurred; and while it was conceded that he was liable for those subsequent, it was contended that he was not for the prior costs, but the court declared that “ the party in interest is liable for costs, as well as those made before as after his interest accrued. When a party takes an assignment of a demand in suit, he takes it own onere, entitled to the benefits and subject to the liabilities of the assignor.” This is our case precisely, and is sound law. The defendant is therefore at liberty to issue his execution against both of the parties for whose use the suit was marked at the time of trial, to collect all legally taxed costs in the case.


text:
      Court of Common Pleas, Dauphin County,

      October 20th, 1856.
    Peebles & Co. v. Kerr.
    When a man receives the money of another without any direct authority, no affidavit of defence is required in a suit for its recovery. The court will first see whether an affidavit of defence is required, and then look into the affidavit itself.
   By the Court.

The affidavit of defence filed in this case is clearly insufficient; but it has been suggested by the defendant’s counsel that none is necessary, the case set forth in the plaintiff’s narr and affidavit of the cause of action not coming within the rule of court. Our rule is an exact transcript of the various acts of Assembly passed on the same subject-matter, for regulating the practice within the city and county of Philadelphia, and several other counties of the State. Therefore we can avail ourselves of the decisions of the courts under those acts to ascertain the true construction of our rules; and in a matter of every-day practice uniformity of decision is highly important. The rule of court contemplates two principal classes of cases in which the affidavit is required. 1st. Where the debt is evidenced by a writing signed by the party to be chai’ged, or by a matter of record. 2d. For the loan or advance of money, whether the same be reduced to writing or not, and for book debts. It has been decided by the Supreme Court that every case must come within the letter of the statute, or at least most clearly within its general scope and intention. And although it may come within the letter, yet if it does not come within the general policy, an affidavit is not required, as in the case of executors, administrators, guardians, and other trustees. The book debt must be of such a character as is the legal subject of an entry, and the copy filed must be taken from the original entries. The loan or advance of money must arise from direct dealings between the parties, such as the party suing can properly swear to, as a contract coming within his own knowledge, or that of the agent making the oath; and does not embrace the class in which one man receives the money of another, which in equo et bona he ought not to retain, and which therefore the law will imply he has contracted to pay over. It is not every case of assumpsit, express or implied, which comes within the rule, but only where there is some direct dealings between plaintiff and defendant. This is evidenced by the whole scope of the decisions collected in Troubat & Haly’s Practice, vol. 1, from 319 to 337, and the authorities there cited. From the affidavit filed here we cannot suppose that there was any direct dealings between the plaintiff and defendant; but on the contrary that the latter received money belonging to the former without any direct authority; but that they now recognize its coming into his hands lawfully, and require him to pay it over, as they properly may. The case does not come within the rule requiring an affidavit of defence, and therefore judgment is refused. We are aware that this to some extent conflicts With Philadelphia Savings Institution v. Smith (10 Barr, 13), where Gibson, C. J., says: “The court is not bound to look into the cause of action, but merely to the affidavit.” But we cannot suppose that it was intended to establish the legal absurdity that a court could give judgment for want of a sufficient affidavit being filed in a case where none is required. We hold it to be the duty of the court to first examine the cause of action as filed, see that it comes within the class of cases requiring an affidavit of defence, and that the plaintiff has complied with the rules of court, and then look into the affidavit of defence. The plaintiff must make out his case according to law before the defendant can be called on to answer.

McCormich, for plaintiff.

Alricks, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      October 1st, 1856.
    Finney v. Finney et al., Executors of Finney.
    When an agreement to pay a claim by some of the heirs against an estate is made by executors, signed by some of them unconditionally, and by another, with the condition, that it shall be signed by all the heirs of the deceased, though never so signed, it is binding upon all the other executors and their personal representatives, and upon him, also, if assented to by all the heirs, except those for whose benefit the agreement was made, as their assent can be presumed.
    When a joint instrument is drawn to be signed by several, and one fails to sign, all are discharged. It is otherwise in the case of a j oint and several instrument, a security for an antecedent debt, or when the parties signing knew that fewer than the whole number were to sign it.
    The words in a will, “ All my money and movables ” will not devise such a chose in action as a claim against an estate. (Sharp v. The United States, 4 Watts, 21, distinguished.)
   By the Court.

From the facts stated in this case, we collect, that before the writing on which the cause mainly turns was entered into, Elizabeth, Susan, and Ann Finney, each had a claim for services rendered to James B. Finney in his lifetime. The writing appears to have been drawn with a view to the establishment and recognition of these claims. None of the obligors bind themselves individually, but merely agree that the money shall be paid out of James B. Finney’s estate. The contract is drawn with a view to the joint obligation of the three brothers, and was doubtless expected to be signed by all. It was unconditionally signed by Thomas and George W.; but Samuel S. appended a condition to his signature, that “ the same shall be agreed to and ratified by all the heirs-at-law, or persons interested in the estate of James B. Finney,” including the claimants. It seems that Elizabeth Finney died within fifteen days after the agreement was signed by Samuel, without having affixed her hand and seal to any ratification of the agreement, as required; and Thomas Finney also died on the 14th of May, following, before any of the other heir.s-at-law of James B. Finney, or either of his three sisters, had signed the ratification. All of the heirs, including Samuel S. Finney and the two surviving sisters, ratified the agreement by writing under their respective hands and seals on the same day that Thomas died. Two questions are presented by this state of facts. First. Is the writing binding on Thomas Finney’s legal representatives? Second. Is it binding on Samuel S. Finney ? It is pretty clearly settled, that if a joint obligation be drawn in a form to be signed by several, the names of all being stated in the body of the instrument, and fewer than the whole number execute it, those signing are not bound, unless it appears that they knew and understood that fewer than the whole might become bound. This may be shown and explained by parol. . The reason is, that a joint obligation is more onerous on two than on three. On the other hand, where the instrument is joint and several, as each undertakes for the whole, no additional burden is thrown upon the two by the third one failing to become bound. So far as we know, the doctrine has rarely been permitted to have a practical application except in cases of sureties. Cases are reported in our own books, where bonds have been drawn to be signed by several as sureties, and a fewer number sealed the instrument, all have been discharged. I have not been able to find any case where the doctrine was invoked in aid of principles; and it most unquestionably could not be done successfully, provided the obligation was given for an antecedent debt. All being bound before, no one is placed in a worse condition, or injuriously deceived by reason of the instrument being prepared in that particular form. In the case under consideration it is conceded, that a debt was due by James B. Finney to each of his sisters, on account of “ important services rendered in his lifetime;” and in consideration thereof, Thomas, George, and Samuel agree to pay the sum of one thousand dollars to each of the sisters out of the estate of James. The contract is not personally binding upon either of the three brothers, further than the money can be obtained from the estate of the deceased brother, to whom they are heirs. Taking the whole writing, in connection with the form of judgment to be entered by the court if it is obligatory, I consider it no more than the admission of a valid pre-existing debt against James B. Finney’s estate, and authority to the administrator thereof to pay the money to the claimants, without objection on the part of the heirs; and in that point of view binding on Thomas and George, so far as their interest was concerned, whether signed by Samuel or not. Thomas and George would have been estopped by that writing from objecting to the payment of those claims by the administrator of James, whether Samuel assented or objected. The only difficulty which could have been raised in their behalf, would have been, how much can be deducted from their shares ? whether the whole three thousand dollars or only their ratable proportion thereof? But that question never can arise, as all of the heirs have since lent the agreement their sanction, by ratifying it under their hands and seals; and the form of that ratification, or the want of the signature by Elizabeth, cannot be objected to by them. They did not stipulate for it, but bound themselves absolutely and unconditionally. We should have said without hesitation, that the signature of Elizabeth was unimportant, as it must be presumed that she would be ’willing to accept her debt, and ratify the arrangement ; but the plaintiff has herself declared that she is ignorant as to whether Elizabeth would, or would not do it. Every one is presumed to be willing to accept a manifest benefit; but we cannot presume in favor of what the plaintiff says she does not know. This can only be important under the condition annexed to the signature of Samuel S. Finney. We consider the estate of Thomas Finney bound by the agreement. It is entirely unlike the case of Sharp v. The United States, 4 Watts, 21, where an act of Congress required two sureties to a bond, which was prepared to be signed accordingly, but only one person of the two named signed the instrument; it was held not to be obligatory upon him without explanation. He had a right to expect that the other persons named as co-sureties would sign, and be willing to bind himself with another; but not to stand alone as bail. In Bean v. Parker (17 Mass. 591), it is said that an instrument intended to be signed by several is not good when executed by one alone. But in that case the bond was prepared for a principal and two sureties, and the former omitted to sign it. Moreover, it Aras an arbitration bond, and in the nature of an instrument creating a debt; that in the present case merely acknowledges one pre-existing. Fertig v. Bucher (3 Barr, 308) Avas a conditional delivery, stipulating for the signature of others, who did not sign the instrument; of course, it was not binding; it was delivered contrary to tbe arrangement under which it was given. We come to the second point. Is this binding on S. S. Finney ? It is unquestionably true that where a party signs a contract on condition, it is his right to have the condition substantially and strictly performed. S. S. Finney stipulates for the assent of his three sisters to have the debt they claimed, paid out of J. B. Finney’s estate. • This appears to us to be an absurdity, as taking the money, without more, would be sufficient evidence of assent; but so the terms are written. Besides, where an act is manifestly for a party’s benefit, acquiescence will be presumed. If this case were trying before a jury, we should feel bound to instruct it to presume that Elizabeth would have signed, had she lived, and is excused by death from a literal compliance. The law will excuse from that which is vain or impossible. At most the paper would only require the signature of her administrator to place it beyond doubt. We are excused from passing on this question, as S. S. Finney, by his signature since his sister’s death, and when he knew that she could not personally sign the paper, affixed his own name and seal to the instrument. This binds him; and as the case conceded that the names-appended to the instrument embrace all the heirs of J. B. Finney, deceased, the condition is performed, and S. S. Finney bound by it. Therefore, the plaintiff is entitled to judgment against him. From the will of Elizabeth Finney being made part of the case, we conjecture that it was thought that the signature of her sisters, as her devisees, would dispense with that of an administrator cum testamento arnnexo. Even if they were the devisees of this debt, it probably could not have that effect, but a legal representative of the estate would have to be raised. In our opinion, there is nothing in the words of the will devising the claim against the estate of James B. Finney to them, but it will go to her heirs-at-law. “All my money and movables” will not carry a chose in action, such as this. Negotiable paper has been so far treated as money as to be permitted to pass by such a bequest, but not bonds, book-accounts, or other dioses in action. Nor will claims pass by a bequest of all my movables. The authorities examined are full and clear on both points. This claim, when collected, goes to all of her brothers and sisters as her heirs-at-law. Judgment is rendered in favor of the plaintiff on the case stated against both the defendants agreeably to the terms of the case.

Fisher, for plaintiff.

Alriclcs, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      September 23d, 1854.
    Gingrich et al. v. The Harrisburg, Portsmouth, Mt. Joy and Lancaster Railroad Company.
    When a viewer has expressed an opinion as to a former and somewhat similar ease, that does not render him incompetent to serve on the view; the party waives objection to a viewer by appearing at the hearing.

      Alridks and Kunhel, for plaintiff.

      Parhe and, Lamberton, for defendant.

   By the Court.

The exceptions to the viewers we consider entirely frivolous, except as to John Raymond; and the only one having the appearance of validity against him is that he had previously expressed an opinion “that no man ought to have a cent of damages on account of the railroad passing over his lands.” This was said at the time of some other view and in relation to other property, not an opinion expressed as to this particular case. Had the court known of such expression of opinion we would not have appointed him; but as it did not relate to this case, it may well be questioned whether it would have been a valid objection in law. No exception was taken to any of the jury until ten days after their appointment, and probably not until the order was made out by the clerk. The protest of the counsel was then sent to the president judge out of court, who had no power over the subject-matter, and no authority to make a change, except in open court. After this protest the party went on to view and take full part in the proceedings. If the objection was intended to be relied on the petitioner should have withdrawn and permitted the others to proceed ex parte. No substantial injustice was done, as the viewer complained of did not act, was not present, and therefore influenced no one. It is true that the petitioners have a right to the appointment of twelve impartial and disinterested jurors, although but nine of them are required to attend. Yet, we think the objection here taken is not a strictly legal one, as the opinion was not expressed in this case and was not taken in time. The party proceeded with his view and had the chance of a report in his favor, and must run the risk of its being against him. The case has no merits when addressed to our discretion, as the juror did not participate in the business and influenced no one. . . .

The report of the viewers is confirmed.


text:
      Court of Common Pleas, Dauphin County,

      December 18th, 1854.
    Ware & Beidleman v. Henry.
    A bond with a warrant of attorney given by a married woman is void, and a judgment entered thereon will be stricken off. The party can sue on his original cause of action, if the feme covert is actually liable; it is not merged in the void bond.
   By the Court.

The application in this case is predicated on the fact that the defendant was a feme covert at the time of giving the bond and warrant of attorney on which the judgment is entered, and that consequently the instrument is void. The fact of coverture is conceded, but it is claimed that the instrument is valid and authorized by section 6, act of April 11th, 1848, which provides for the wife carrying on business in her own right, and contemplates the contracting of debts and giving bonds or other obligations to secure their payment. From the admitted facts we learn that the defendant purchased her husband’s store at sheriff’s sale, and it would seem paid for it with her own money. She employed her husband as her agent to carry on business, who gave her note to the plaintiff for $268, payable at thirty days, and dated May 6th, 1854. The two judgment-bonds were executed and delivered by her to the plaintiff in satisfaction of that debt. It thus appears pretty clearly that the debt was contracted in the course of her regular business as a trader, carried on by her husband as her agent, and the debt sanctioned by the principal. This application is not sustained by one particle of equity; it must be supported, if it all, by strict principles of law, as the effort to avoid the debt is immoral and highly dishonest. Yet if the judgment is void by law we are bound to declare it so and set aside the execution. By the common law, every contract made by a feme covert and every obligation given by her to secure its performance are utterly void. A judgment entered by virtue of her warrant of attorney will not support an execution, although her husband join in the bond and warrant. A sale of her real estate on such a judgment confers no title. There is no necessity to reverse the judgment, it is a nullity (3 Wh. 309; 6 H. 79). If the wife carry on business, or make a contract without the husband’s concurrence, he is not bound, nor is there any liability on her part; if with the consent of the husband, he alone can be sued (2 Freeman, 215.) These are long-established and self-evident principles. The only question of moment is, how far is her condition changed by the act of 1848 ? The deed, mortgage, release, and every other instrument of writing made by a feme covert, affecting her land, or any interest therein, was always heretofore void in Pennsylvania, unless her husband joined in its execution. Although acknowledged in the forms of law, it had no binding efficacy against either husband or wife. It is equally inefficacious since the passage of the act of Assembly. (Peck v. Ward, 6 H. 506; Ulp v. Cambell, 7 H. 361.) She can neither sell her land, nor incumber it by a mortgage without the sanction and consent of her husband, evidenced by his signature to the instrument. Can she incumber it by a judgment bond ? If she can, all her interest in her property, real and personal, may be swept off without the consent or knowledge, and even against the will of her husband; and the act of Assembly, which was intended merely as a shield to protect the wife against the creditors of the husband, may be made the instrument of her distraction, and also be of great injury to him. It is contended that the wife has an implied power to carry on business, and contract debts in her own name, from the wording of the second proviso in the 6 th section of the act of 1848, and as a consequence, can give a bond to secure such debts. It might admit of some question, whether the liability for debt there referred to does not apply to such as had been contracted before marriage, as mentioned in the first proviso, as her husband is exonerated from the payment of such claims. But taking it for granted that the legislature intended to permit married women to make contracts, and carry on business in person, or by agent, and to incur debts in the course of their trading, does it follow that they can give bonds with warrants of attorney to enter judgments without the sanction or signature of their husbands ? We think not. The opinion of the Supreme Court, as delivered by Woodward, J., shows, that on such a contract the suit must be against the husband alone. (Williams et ux. v. Coward et ux., 1 Gr. 21). And we apprehend that on the recovery of a judgment, the act of Assembly permits an execution to go against the property of the wife. But suppose that opinion to apply merely to debts contracted before 1848, and in it we have no statement of the date of the loan or deposit sued for, we still think that the weight of reason and authority is against the power of the defendant to execute these judgment bonds. So long as the creditor is obliged to pursue his original contract or cause of action, the court holds a supervisory power over the transaction, and can see that the interest of the married woman is not compromised, that the debt was really her owm, and not contracted for the benefit of the husband or some other person. If a judgment can be entered on her warrant of attorney, all inquiry is at an end. That she cannot be bound for the debt of another is decided by Judge Lowrie in the District Court of Alleghany County, in Bennett v. Smith, 3 A. L. J. 138. The decision of Judge Williams in the same court, that a wife may purchase real property and give judgment bonds to secure the purchase-money, we consider unsound. She may accept a deed for land, being apparently for her benefit, but she most clearly cannot incumber it with a mortgage without her husband joining therein. Why then permit her to charge it with a judgment? If the mortgage is void, how shall we say that the bonds accompanying it are good? In New York, under a statute of similar import, it has been held that a chattel-mortgage, given by the wife without the husband joining, is invalid. It has been decided by Lord Mansfield and the whole Court of the King’s Bench that a feme covert, a sole trader under the customs of London, cannot give a bond with warrant of attorney to enter judgment without her husband joining, as she cannot be sued alone. It is there conceded that she can give a promissory note, or make binding contracts in the course of her business; but on such note and contracts the suit will be sustained against the husband and wife. Candell v. Shaw, 4 Term R. 361. There is some analogy between this case and the contract of an infant for necessaries. The contract is valid and can be enforced, but a bond with a penalty given by the infant is void. So also would be a bond with a warrant of attorney to enter judgment, as it cannot be for his interest to give such a bond. There is another similarity in our opinion. The bond being void, the vendor of the necessaries can recur to the original contract, which is not merged in an invalid instrument. So here the creditor can bring suit on his original contract for the sale of the goods to Mrs. Henry; and if he can show that the debt was incurred by her or her accredited agent, in carrying on her business, he may recover, and have execution against her goods. Whether the action must be brought against the wife alone, against the husband and wife, or against the husband alone, we are not called upon to decide. From the whole view of the case we feel constrained to declare, that the warrant of attorney given by Mrs. Henry in this case is void, and conferred no power to enter a judgment against her. Therefore, we make the rule entered by the defendant absolute.

McCormicJi and Knox, for plaintiff.

Emerson and McAllister, for defendant.


text:
      Court of Common Pleas, Dauphin County,

      August 8th, 1854.
    Landis v. Kirk.
    In order to entitle the plaintiff to judgment for want of a sufficient affidavit of defence, lie must state clearly the date, amount, and terms of his claim. Where money has been received from a third person for the use of the party suing, no affidavit of defence is required.
   By the Court.

The grounds of this motion are: 1st. The plaintiff waived his right to call for an affidavit of defence by ruling the defendant to plead, which was done accordingly, and the cause put at issue. We are inclined to think that by taking the rule and accepting the plea, the plaintiff has waived his right to call for an affidavit of defence. Such appears to have been the opinion of the court in 2 Miles, 28; 1 Ash, 18; but we decline deciding the case on that ground, as there are others less doubtful. 2d. The statement of the claim or cause of action on which the suit is founded has not been filed in proper time; nor is it of that clear and explicit character which the rule of court requires. We are of opinion that it would have been filed in proper time under the rule of court, but for the reason stated in the first-mentioned exception, — that a rule was taken to plead. We must take it for granted, that notice of filing this paper was received by the defendant’s attorney at the time named in the plaintiff’s affidavit this day filed, unless its receipt through the mail in due course thereof is denied by the counsel to whom it was directed. But the notice of the claim is insufficient, as it does not clearly and explicitly state the terms of the loan or advance of money, with the date thereof and amount claimed. It may be inferred that the cause of action commenced or accrued in the summer of 1845, but whether the plaintiff claims to recover $500, with interest from that time, $250 or $500 less $50, I am, from the most careful reading of the claim, unable to say. So far from stating clearly and explicitly the amount claimed, with the cause of action out of which it originated, the claim filed is uncertain, both as to the amount and nature of the demand. No judgment should have been rendered by the prothonotary on so vague a statement. 3d. It is further objected that the claim as stated does not come within tire rule of court, and required no affidavit of defence. The acts of Assembly on which our rule is founded, originally embraced only cases in which the evidence of debt appeared of record, or was founded upon some obligation signed by the party to be charged. But afterwards it was made to include claims for the loan or advance of money, whether evidenced by the writing or not. The rule is as broad and no broader than the act with its supplements, and must receive the same construction. The act has never, so far as we know, been held to cover the case of money received from a third person for the use of the party suing, but only the direct loan or advance of money arising from dealings between the parties, in a case of borrowing and lending, in which the party can make oath to the loan or advance of the money, stating the date and amount thereof. 2 Miles, 13, 329, 421; 1 Penna. Prac. 325; Idem, 335 (note). The facte disclosed in this claim filed, show a case of one man receiving money belonging to another, which in equo et bono he ought to pay over, and which could be recovered in an action of assumpsit for money he had received, but does not set forth a loan or advance of money by Landis to Kirk, therefore it does not come within the words of the rule; nor is it covered by its spirit and intention, which never was designed to embrace every case "where assumpsit might be supported, but merely those in Avhich the dealings between the parties were direct, where the one lent or advanced the money to the other; or possibly where there Avas a direct promise to pay over money previously received, and the express promise made the foundation of the claim. The rule in this case must be made absolute. It is ordered that the judgment be strickén off, and the subsequent proceedings set aside at the cost of the plaintiff.


text:
      Court of Common Pleas, Dauphin County,

      July 20th, 1855.
    Kanfelt & McBarron for use of Kanfelt v. Fisher.
    A transcript was entered from the record of a justice of the peace, who had died; his docket had been given to a justice without the district of the former magistrate, and upon his death returned to one within it. Held: That though the proceedings were somewhat irregular, the court will refuse to strike off the judgment. Where a judgment is very ancient, a scire facias should be issued upon it, or the execution will be set aside.
   By the Court.

The Courts of Common Pleas have a very limited power over the transcripts of justices, when filed of record for the purposes of lien. They cannot strike off the liens, or set aside the judgments (Daily v. Gifford, 12 S. & R. 72), nor open the judgment (Lacock v. White, 7 H. 495); and an order made to that effect is void. The extent of our authority is to ascertain if the justice had jurisdiction Avith proper power to certify the transcript. Where the magistrate, before whom the judgment is entered, gives a copy of his record, the latter question cannot arise; but in the present case, according to the conceded facts and the face of the transcript, the judgment was entered by one, and the record certified by another justice.

E. Heller was a justice of the peace for the borough of Middletown, at the time the judgment in this case Avas rendered in 1835, was re-elected in 1840, and died in 1842. After his death, the docket containing this and other judgments was handed to Joseph Walborn, a justice of LoAver Swatara township, and remained in his possession until his death in 1842, Avhen it was given by his administrator to J. J. Walborn, a justice for MiddletoAvn. In this proceeding it is very clear that the acts of Assembly were not complied with, as all the statutes contemplate that the docket shall go into the hands of another justice of the same district Avith the one who has died or removed. Had the transcript been certified by Joseph Walborn, we must have treated it as emanating from one not entitled under any act of Assembly to certify it; consequently the motion to strike off must have prevailed. It is, however, issued by a magistrate of the proper borough, and the only question is, can we inquire whether the docket came by legitimate and regular course of delivery into his hands? That the act of Assembly has not been strictly complied with is very clear; but we cannot believe that a departure from the literal mandate of the law was intended to render the docket and all judgments thereon a nullity. J. J. Walborn could have proceeded by action of debt to recover this judgment, and Heller’s docket would have been conclusive evidence of the indebtedness. He could have certified a transcript to the justice of another county, which would have been regular (1 W. & S. 414). For every legal purpose, except possibly the present, the docket was properly in his custody. And why not for this? We have already said that it was clearly erroneous and improper to hand it to the justice of another township; but on the error being discovered, it was the duty of those having possession of the records and papers to deliver them to the magistrate of the proper borough. It having travelled round by an improper and circuitous road, certainly cannot deprive those interested in judgments from recovering them. They are not in default. There is nothing in the acts under which these proceedings took place which requires the docket to be handed to the person elected to succeed the removed or deceased magistrate, but only to some neighboring justice of the district; and although in strictness this should have been done by the legal representative of Heller, yet if neglected by them, but done by another, the person holding it has jurisdiction. J. J. Walborn had a right to receive evidence that the docket from which this transcript was taken was that of Heller, and possibly to judge it to be such by inspection; and after certifying a copy to the prothonotary’s office, we must take it for granted that he was satisfied it was truly the record. If he could not certify it, no other person could lawfully perform a duty which the acts of Assembly contemplated there should be at all times some person capable of legally performing, so as to secure the plaintiff in his lien. After parting with the record for several years, it may be very questionable whether the administrators of Heller, even if living and not discharged from their trust, could give a legally certified copy. It is also urged, that from the great antiquity of this judgment, and the length of time since any act was done showing a claim by the plaintiffs to the amount, the transcript should not have been filed without leave of the court, on a rule to show cause granted. For this position we are referred to Diamond v. Tobias, 2 Jo. 315, which contains a dictvm from which such doctrine might be inferred. But there is not the slightest analogy between the cases provided for in the rule of court and those coming within this act of Assembly. Independent of the rule of court, a judgment could be entered on a warrant of attorney at any time, however ancient; and our only control would be over the execution, where from the antiquity of the bond the law would presume it paid. We have the subject examined by judges of sound erudition and great experience, in Chambers v. Carson, 2 Wh. 372, and Lesley v. Nones, 12 S. & R. 419, when it was attempted to apply the doctrine to writs of scire facias, but without success. It is there held that permission to proceed at law need be obtained in no cases except those coming within the rule of court. ' The law has given the plaintiffs authority to file their transcript for the purpose of lien, without asking permission of the Court of Common Pleas, and we cannot clog it with conditions.

Fitter, for plaintiff.

Fisher, for defendant.

The party is not without remedy, where the law presumes the judgment paid from time or circumstances. Should the justice issue an execution without a scire facias, it would be our duty to reverse the writ on a certiorari; and should it be attempted in court we must set it aside. The writ of scire facias is the proper and legitimate mode of testing payment, whether the presumption arises from circumstances or lapse of time. The issue will then be tried by the proper tribunal on full notice. Although from the promise made eighteen years ago by George Fisher to pay this debt, and the silence of the parties for that period of time, I am strongly disposed to believe it paid, yet that question must be determined by the proper tribunal — a jury.

Motion denied.


text:
      Court of Common Pleas, Dauphin County,

      April 26th, 1855.
    Snyder v. Enterline.
    Articles of agreement made between husband and wife, conveying to him all her interest in an estate, upon which she had a claim, the amount of which was unknown at the time of entering into the articles, are void. A power of attorney from a married woman to her husband is void.
   By the Court.

This suit is brought by Mrs. Snyder to recover her distributive portion of her father’s estate. From the facts in evidence it appears that there was a proceeding in partition commenced June 8th, 1844, to divide the estate of John P. Enterlirie, and a return made to August Term of the same year, showing that it could not be divided, when a rule was granted, returnable to November Term, to show cause why it should not be sold. A sale of the land was ultimately effected, and confirmed at November Term, 1847, and. a final administration account settled and confirmed at May Term, 1850, by which it appears that the sum of $458.59 was coming to each heir, excluding the real and personal property. The whole of this money had, prior to the final confirmation, been paid over to the husband of the plaintiff, who claimed to receive it by virtue of an article of agreement made between the parties, dated November 14th, 1844. The right of the husband to receive his wife’s money depends on the validity of that instrument. It is a direct contract between the husband and wife, without the intervention of trustees, by which the wife assigns to her husband all her interest in her father’s estate, both real and personal, and also appointed him her attorney to receive the money. This instrument is acknowledged before a justice of the peace in the method usually resorted to by husband and wife, when the land of the latter is to be sold. But notwithstanding the separate examination of the wife, this deed is void by the common law, as it is clearly settled that the wife cannot at law convey directly to the husband, nor can she constitute him her attorney to sell her land or receive her money. Such writings are, however, often supported in equity, when proper and beneficial to the wife. This article would, under some circumstances, be sustained in chancery as a post-nuptial contract, and a settlement of the wife’s estate on her husband in a manner nearly as beneficial as it would have been cast on him by law, independent of the arrangement. But there are two difficulties in the way: First. The wife did not and could not know what she was conveying, as the estate was unsettled and the land unsold. She could not know how much was due for her personalty or what the land would bring. We consider it very clear that she must know precisely what .•she is about to dispose of, and cannot act in the dark as to sums and value. Secondly. As the conveyance embraces personal effects and evidently contemplates the sale of the real estate, which it was then ascertained from the proceeding in partition must be sold, it comes within the 48th section of the act of March 29th, 1832, which must be strictly pursued. There can be no pretence that the articles .entered into between these parties conform to the act in any particular. And even if it were a declaration, made as required by the statute, according to the method of Walter’s Estate (2 Wh. 246), it would be void if the precise amount of the estate was not known. The .exactness with which the act of Assembly must be followed is more .fully exemplified in Beyer v. Reesor (5 W. & S. 501), where the failure to file the declaration .in ,the .Orphans’ .Court is .held .to be fatal. . It was my disposition to sustain the payments in this case if practicable, as there is no doubt that the administrator paid the money in good faith to the plaintiff’s husband, and it is more than probable that she has already enjoyed the benefit of it, and may even claim a portion of it a second time, as it goes to swell her husband’s estate, out of which she is entitled to dower. But the administrator was bound to know the law, and should have withheld payment until the act was complied with. The power of attorney is invalid. A husband may constitute his wife his attorney,, but I am unable to see how the converse can be sustained. By the common law the personalty of the wife would belong to the husband, and no authority from her to receive it is required, and should she authorize him to sell her land, he would have to join; in the power, as she can sign no such instrument alone; and it would introduce the strange incongruity of the legal necessity of-a man signing a letter of attorney to himself. Besides, if she can give a valid authority to her husband to receive her money, the act of 1832 becomes a dead letter. He can obtain her estate without one requisite of that act being complied with. For it is very clear that if the fund once comes into his hands, neither his wife nor the Orphans’ Court can call on him to render an account or give security. I am of the opinion that there has been no authority shown to make these payments to John Snyder, and consequently judgment must be rendered in favor of the plaintiff for the sum of $625.72 on the case stated. To be entered as of the day the verdict was rendered, to wit, January 24th, 1855, de bonis et terris of Peter Enterline, deceased.

Alrieks, for plaintiff.

Berryhill, for defendant.


author: By the Couet.

text:
      Court of Quarter Sessions, Dauphin County,

      March 13th, 1854.
    In re James Gowan’s License.
    The Court of Quarter Sessions may, in their discretion, revoke the license of a tavern-keeper, who sells liquor to minors or apprentices, harbors intemperate persons, or is convicted of selling liquor on Sunday, of any oflfence against the liqnor laws or of one involving moral turpitude. Where the barkeeper sold, liquor to a minor without the knowledge of the inn-keeper, but did so on Sunday, when the house was kept open with his consent, his license should be revoked.
   By the Couet.

A rule was granted on James Gowan to show cause why his license should not be revoked on account of violating the law in selling liquor to minors and apprentices; also for selling on Sunday, and harboring intemperate persons about his house. On the hearing it did not appear that lie had suffered drunkenness to any considerable extent on his premises; but it was proved that he had sold liquor on Sunday to a minor, apprentice, and to several others. Two records of convictions are produced, the one by a justice of the peace for selling to said minor, apprentice, the other by a different magistrate for selling on Sunday; both of which offences were committed since the renewal of his license-at the January Court. Two questions are presented by this evidence. 1st. Has the court the power to revoke this license? 2d. Is to revoke it a sound exercise of the discretionary power conferred by law? We do not possess an arbitrary authority over the licenses of public-house keepers. They hold them under the sanction of the law, when once granted, and cannot be deprived thereof except for certain legal reasons and causes, pretty clearly defined in the act of Assembly. When brought within the provisions of the act, it then, in some cases, becomes discretionary with the Court of Quarter Sessions to annul the license or permit it to remain in force. In other cases the law is ■ imperative on the court to enter a revocation. By the 27th section of the act of March 11th, 1834, it is declared, “ If any innkeeper or tavern-keeper shall be convicted of any offence not mentioned in this act, or shall knowingly suffer drunkenness, riot, or other disorderly conduct in his house, or shall disobey any of the provisions of this act, it shall be lawful for the court which granted the license, in their discretion, to revoke the same, and such revocation shall be entered, on record, and the license shall thereupon cease and determine.” The 21st section prohibits any tavern-keeper from harboring, entertaining or trusting any person under the age of twenty-one years, or any apprentice, knowing him to be such, or after being warned, etc., under a penalty for the first and second offences of three dollars, and for the third offence under one of fifteen dollars and forfeiture of his license, and being forever incapable of receiving a license to keep a public house within this commonwealth. By this section entertaining a minor or apprentice is treated as an offence, and punished by a penalty. According to all rules of construction it is therefore forbidden. Forfeiture of the license is not in terms imposed as a penalty in such cases, unless the offence is committed a third time, when it is absolutely forfeited, and the parly rendered incapable of receiving another at any time. Has the court a discretionary power to declare it forfeited on the perpetration of the first offence ? It is very clear that the legislature intended to convey some meaning by the expression, “ disobey any of the provisions of this act,” and conferring authority on the court to forfeit the license in the exercise of its discretion. Yet if we determine that the court possessed no such power for the first offence, there is but little left in the act for the words to operate upon. The prohibition against gambling, or inciting thereto, or furnishing drinks to those engaged therein, is punished by a specific fine and forfeiture of license for one year on the first conviction, and by being forever incapable of receiving a license on the second. In those cases there is no room for discretion; the forfeiture is absolute. Nor can we discover anything to which the words, “ disobey any of the provisions of this act” can be applied, unless it may be to the mandate to keep good entertainment for man and horse,” and in that case a specific penalty is imposed. We are of opinion that where a landlord knowingly furnishes intoxicating drinks to a minor or apprentice, or permits any kind of gambling in his house, or incites or encourages it, or furnishes drink to those engaged in it, he has offended against the provisions of the act, whether convicted thereof, or not, and the court may in its discretion, under a view of all the circumstances, revoke the license. It is not required to do so; but the power is conferred. The absolute command to revoke is imposed on the several convictions under the act. The court there has no discretion. This appears to us to be the fair interpretation of the statute, and that its words will admit of no other. If this is assuming too much uncontrolled discretion over inn-keepers on the part of the court, the legislature can apply the correction by repealing that part of the law. We also consider that the statute should be liberally construed, so as to suppress the mischief to be apprehended from an uncontrolled power to sell intoxicating drinks to minors and apprentices. A landlord might, a first and second time, furnish to a minor of the most tender years the means of excessive intoxication, against the earnest remonstrance of his guardian or parent, without the possibility of a greater punishment being imposed than the penalty of three dollars, which may be inadequate to prevent the mischief to society. But when it is known that in addition the court may in its discretion revoke the license, the landlord will avoid doing the injury. Therefore we are of the opinion that the court, on the record of conviction being produced, and the proof made before us of the fact of sale to this minor apprentice, has the power to revoke the license. Mr. Gowan has also been convicted of violating the Sabbath by selling liquor at his bar on that day. This offence is not enumerated in the act under consideration. Does it come within the meaning of the expression “ convicted of any offence not mentioned in this act?” The term convicted, according to the best lexicographers, means the determining or finding the party guilty of an offence, and is applied alike to convictions by a court, a jury, a justice of the peace, or of conscience. In the law dictionaries it is defined to be “ a condemnation, or giving judgment against a defendant. It is generally applied to summary proceedings before a magistrate, where the party is convicted and sentenced.” It may be applied to every kind of conviction, and is so in common parlance; and to the ordinary expressions of mankind we should look quite as much as into our •laAV books, to ascertain the true meaning of an act of Assembly. The word “offence” is defined by lexicographers to be “any transgression of law, divine or human; a crime or sin.” An offender, “ one who violates any law, divine or human; a criminal.” The law dictionaries declare that, “ strictly an offence includes crimes, misdemeanors, and lesser matters not indictable; and are generally distinguishable from crimes and misdemeanors because not indictable, but punishable summarily by the forfeiture of a penalty.” Chitty, in his work on General Practice, vol. i, 14, says: “ The term offence may be considered as having the same meaning as crime or misdemeanor; but is usually by itself understood to be a crime not indictable, but punishable summarily or by th eforfeitwre of a penalty”

Therefore we- are of the opinion that whether this statute is . tested by common parlance or the language of the laAV, it confers ■a power on the court to revoke the license of those tavern-keepers who are convicted of an offence either by a justice of the peace or a court of common law. But to bring the case within the inten- . tion of the lawmakers, such conviction must be of some violation of duty or law as a tavern-lceeper, or of a crime involving moral turpitude. If a landlord was convicted of an assault and battery in a matter having no connection with his business, of cutting timber trees, or of a nuisance in flooding his neighbor’s land, it would confer no poAver on the court to revoke his license. But if found guilty of an assault with intent to rob, commit a rape, ■or of larceny, peijury, forgery, or the like, it would be other Avise. If summarily convicted of profane swearing or a breach of the Sabbath, in a matter having no connection with his business as a landlord, it would not give authority to the court over his license If the crime were committed by him as a tavern-keeper, and in the exercise of his business as such, it Avould confer such power. The mere commission of the offence of selling liquor on Sunday will not give power to the court; it is not “ an offence mentioned in the act.” The conviction of that crime brings it within the letter and intention of the statute. We have not arrived at this conclusion without hesitation. Not from any intrinsic difficulty in the wording of the statute, but because we are aware that several judges in this State, for whose opinion Ave have- the highest ■respect, have determined differently. The interest of the community and the policy of the laAV require this interpretation of the •act. Were Ave to decide otherwise, the consequence will be, that where a license is granted for a year, it must be continued, however much the neighborhood might be injured by the vending of intoxicating drinks on Sunday. The fine of $4.00 may be fully remunerated by the profits of the sales; and a refusal to renew the license at the end of the year will leave but little terror to tenants, whose terms very frequently expire annually. For those reasons, and many others which might be adduced, we are of the opinion, that when a landlord is convicted of selling liquors on Sunday, the court may revoke his license. Is it a sound exercise of legal discretion to revoke the license in this case? The sale to the minor apprentice appears to have been made by a barkeeper, when the landlord was not present; and for that act alone it might seem harsh to deprive him of his license. But we must bear in mind that it took place on Sunday, when the bar was kept open under the express sanction of the landlord. This act of itself was unlawful, and the party authorizing it must be answerable for all the consequences. The sale on Sunday may have been at the same or different times; the presumption is that it was at a different time, as the barkeeper was the proper person to sue if the sale was in the absence of the owner. We have only the conviction before us. The constable who gave the information, testifies that the landlord was very abusive to him for informing; and declared that he had sold several times on that day; that others did, and he would also. This court has repeatedly declared that such sales are illegal. The Supreme Court of this State has settled the law in the same way. We have given repeated warnings to tavern-keepers that their licenses would not be renewed if they lived in the weekly violation of the law. This landlord was not ignorant of his duty, and well knew that he was acting against the mandate of the law in selling on Sunday. He was properly convicted by the justice from aught that appears before us; and we consider that we would be derelict to society should we permit the offence to be persisted in. In the exercise of what we consider a sound legal discretion, we have resolved to revoke this license. The court has exercised great liberality in conferring licenses on the keepers of public houses. At the same time we have declared our determination to hold the party licensed to a strict performance of his legal duties. This determination we shall in every case most inflexibly carry into full effect.


text:
      Court of Quarter Sessions, Dauphin County,

      January 16th, 1854.
    In the matter of the Petition of Antes to vacate a Street in Harrisburg.
    The court lias no power to vacate a street laid out in an incorporated borough.
   By the Court.

The highway asked to be vacated in this petition is a street in the borough of .Harrisburg, laid out purpuant to an act of Assembly authorizing the Court of Quarter Sessions in this county to lay out and widen streets in said borough. It clearly appears that this is not an ordinary road or highway established by an order of the Quarter Sessions, but a street located by the report of twelve viewers and the county commissioners, as provided in the special act, and does not come within the general road laws. Has the Court of Quarter Sessions power to vacate it? If so, must it be done by an ordinary view, or the action of twelve men — the same authority by which it was laid out ? By the general road laws, jurisdiction is given to the Courts of Quarter Sessions to vacate or change any street in an unincorporated village; but the same law prohibits the court from “vacating a lane, street, or highway, in any city, borough, town, or village laid out by the late proprietaries, or by any other person, and dedicated to the public use.” The words of this act are not very clear, and in their construction something depends upon the punctuation; but taken in connection with the other permission expressly giving authority to change or vacate the streets, etc., in an unincorporated town, it appears pretty clearly that the intention was to withhold the power in regard to the streets and alleys in cities and boroughs. Hkcpressio unius exclusio est alterius. . Therefore the court possessed the power to lay out this street, but has no authority to vacate it. If it has, a street laid out and adjudged necessary in the opinion of twelve viewers, carefully selected for their impartiality from the county alone, excluding the borough, might, as soon as located, opened, and the damage paid, be vacated by the decision of six men appointed from the .county at large, including the borough. "We cannot believe that the legislature so intended. If the sessions possessed jurisdiction, we should not consider it a sound exercise of legal discretion to appoint viewers to vacate the street in this particular case. We are asked to decide on this petition, that the street proposed to be vacated never had legal existence, as no width was fixed by the court or viewers, and the whole proceeding was void, because the damages were not assessed and paid, and the street opened. These are questions which we are not required to decide in this form of proceeding’. The party who avers that the property remains in him, can test that question in a legal way, when disputed facts may be determined by a jury, and points of law reviewed by the Supreme Court. If the street has no existence for want of width, on assessment and payment of damages, there are methods of determining without this court giving an extra-judicial opinion. We will endeavor to decide the question, when it fairly and legitimately arises. The application of the petitioner is rejected.


text:
      Court of Common Pleas, Dauphin County,

      February 1st, 1855.
    Shell v. The Commissioners of Dauphin County.
    The court will refuse a mandamus, where the partj against whom it is prayed denies that he owes the money, to compel the payment of which the writ was demanded. His right must first be established by an action.

      Bishop, for plaintiff.

      Mumma, for defendant.

   By the Court.

To the application of the plaintiff for a mandamus on the defendants, commanding them to draw their warrant on the treasurer of Dauphin county for the payment of certain costs claimed by him as late sheriff, the defendants have answered under oath that they, as commissioners, owe the plaintiff nothing; that all accounts between him and Dauphin county for fees were regularly settled. This answer is an ample bar to the plaintiff’s demand for a mandamus, which is a high prerogative writ, and only intended to be used or resorted to when every other means to obtain justice is precluded. In the Commonwealth v. Rosseter et al. (2 Binney, 360) it is said: To found an application for a mandamus there must be a specific legal right, as well as the want of a specific legal remedy, and courts of justice uniformly refuse such application when the party has another completer remedy.” In 10 S. & R. 317, it is decided that a mandamus will not be granted against the commissioners of a county to pay a disputed account until the amount due is ascertained by an action against them in their corporate capacity. The same doctrine is reiterated in Hester’s case (2 W. & S. 416), and the general principles contained in 2 Binney already recited reaffirmed in 1 H. 72.

The claimant has a plain remedy against the county by a common-law action, in which this amount due him, if anything, will be determined by a jury; after which this court will have the power to oblige the commissioners to pay him by issuing a writ of mandamus, if necessary.

The application for a peremptory mandamus is refused, and the proceedings dismissed at the cost of the plaintiff or petitioner.


author: By the Court;

text:
      Court of Common Pleas, Dauphin County,

      July 20th, 1855.
    Buffington v. Henry et ux.
    When judgments were obtained before a justice of the-peace, and transcripts entered in the Court of Common Pleas, these judgments can only be set aside on certiorari or appeal • but when entered against a married woman, except in cases under the act of 1848, they are so far void that executions issued thereon will be set aside.
   By the Court;

The judgment in this case having been rendered by a justice of the peace, and the transcript filed for the purpose of obtaining a lien merely, is not properly and judicially before us. The only legal method of placing it within the control of the court is by certiorari or appeal. It has long since been decided that the Court of Common Pleas cannot strike off the lien (12 S. & R. 72); and although that case appeared to be shaken by what fell from Gibson, C. J., in King v. King (1 Penna. 20), and Walker v. Lyon (3 Penna. 98), yet it receives confirmation from the decision of Black, C. J., in 7 H. 495; where it is declared that the Common Pleas cannot open the judgment under any circumstances, nor disturb it unless brought before them on appeal or certiorari. It is very clear to our mind that the judgment rendered by the justice against Mrs. Henry is entirely irregular. Being a married woman, she was not subject to an action; and even her confession of judgment, like her bond with warrant of attorney, would have been void. The present was not even a judgment on hearing, but by default. It may be well asked, how can a married woman be in default? She is not obliged to attend in person, or employ an attorney. Her husband is to perform these acts for her. If it appeared in the face of the record that J. N. Henry, therein named, was a married woman, I should consider the judgment so far a nullity that we would be obliged to set aside any and every execution issued upon it. Although the coverture does not appear upon the face of the record, yet it is shown by affidavit. If her person were arrested under the judgment, we should be obliged to discharge her on a habeas corpus, independent of the law exempting females from arrest. If her personal property were seized, the officers issuing and executing the process would probably be trespassers, on the coverture being made to appear on proof that they knew it. If her land should be sold, it is very clear that it would not give the purchaser a shadow of title, provided he had notice of the marriage. This is fully considered and decided in Caldwell v. Walters (6 H. 79), and Dorrance v. Scott (3 Wh. 309), and according to the last-named case, if her land were sold on other and valid process, and the money brought into court for distribution, this creditor would not take any of it on his judgment, it being no lien, but void. That case was stronger than the present, for there, on a judgment entered against husband and wife, on a warrant .of attorney, a scire facias issued in a common-law court to revive it, and a regular judgment entered thereon after appearance; yet it was held to be absolutely void as to the wife’s property, and no lien thereon. It is true that both of the above cases arose before the act of 1848, generally called “ The Married Woman’s Act;” but repeated decisions have settled that the act referred to makes no change whatever,, either in regard to the right or power of married women in this particular. They are no more subject to actions now, except in certain enumerated and specified cases, than they were before its passage. Although we have no power over this judgment, yet we have over the execution, which is process issued under the sanction of the court. We cannot knowingly permit purchasers at sheriff’s sale to be deceived by bidding in property on a proceeding so far void that they can obtain no title. Mrs. Henry would recover back her real estate, should the purchaser obtain possession ; or could lawfully withhold possession, notwithstanding his sheriff’s deed and the payment of his money. We consider it our duty to protect society against such imposition, and must, therefore, set aside the fi. fa. and all subsequent proceedings. The judgment we cannot disturb. It is probably very harmless, being void as to Mrs. Henry, against whom alone it is entered.

Boas, for plaintiff.

McAllister, for defendant.

It is ordered that the fi. fa. and all subsequent proceedings be set aside at plaintiff’s costs. •


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      Court of Common Pleas, Dauphin County,

      July 7th, 1856.
    Urich v. Forney et al.
    In an action where there are several defendants, who elect to try separately, the plaintiff can only recover his witnesses’ costs from that defendant against whom those witnesses were called, but can recover all the other costs from any party against whom he obtains a judgment.
   By the Court.

In this case a separate defence was taken by the first four defendants for 177 acres, 98 perches of land, part of that described in plaintiff’s writ, and by Beaver, the last defendant, for 16 acres, another portion thereof. The defendants having thus severed in their defence and pleaded separately, the cause came on to be tried; a verdict was found in favor of the first four defendants for the parts claimed by them, and against Beaver for the portion for which he took defence. The first four defendants not only defeated the plaintiff’s recovery, but by the decision of this court, had an order made in their favor, that they recover from the plaintiff the costs due to their witnesses. Beaver now asks that the plaintiff be not permitted to recover costs from him, as the whole contract was between the other parties. We are well aware that the costs incurred in this controversy arose entirely out of the dispute between the plaintiff and Emanuel Cassel, and that no witness was required, nor was one examined in relation to the claim of Beaver. The latter could not safely confess judgment in favor of the plaintiff, as he had purchased the land with warranty, and vouched his vendor to defend the possession; consequently, there must be a trial proforma merely as to his 16 acres, although it was well known and understood on both sides that there was no valid defence. The recovery of a judgment by the plaintiff carries costs of course, and although we may believe it operates with hardship in the particular case, yet as the law gives costs, it is beyond the control of the court. The plaintiff’s bill for her witnesses depends upon a different principle. We cannot permit a bill to be taxed against the defendant Beaver, for witnesses not examined or required in his case. The issues here were separate, and as the cause was tried before this court, we are well aware that not a single witness was examined in relation to any matter connected with that part of the tract in possession of Beaver consequently were not required in the contest with him.

The title of the plaintiff, irrespective of a release executed to Emanuel Cassel, and which she averred was fraudulent, had been previously investigated and found to be valid; there was no supposition that Beaver could contest it; but all of the witnesses were examined in relation to the release, and that being found against the plaintiff, she consequently lost the suit, and in equity and good conscience should pay the costs of the controversy. We have no doubt of the power of the court over a party’s bill for the attendance of witnesses, and in very many cases it has to be disallowed in whole or in part. This case in our opinion calls for the interposition of the court, in order to prevent one defendant being obliged to pay the costs to the plaintiff for witnesses produced in court to testify in regard to a contract with other defendants who have no other relation to Beaver than what arises from their names being inserted in the same original process, all the subsequent proceedings being separate. In some cases the Supreme Court has decided that a plaintiff might obtain a judgment, and yet could not throw the defendant into costs, who had been in no default, • or where the plaintiff’s right to recover at law was not perfect, when the action was commenced; thus giving to the court before whom the cause was tried, au equitable power to grant or withhold costs, according to the whole character of the case "We are of the opinion that the plaintiff should not be permitted to recover her bill for her witnesses, amounting to $41.24; and direct that it be stricken out and disallowed; and for the costs coming to the officers, and incident to the action, except for the bill aforesaid, the plaintiff is entitled to a judgment and is permitted to have execution for the same.

Berryhill and H. Airicios, for plaintiff.

AlricJos, McCormicJo, and Fisher, for defendant.


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      Court of Common Pleas, Dauphin County,

      February 9th, 1856.
    Urich v. Forney et al.
    In an action of ejectment, when several persons have been joined in the suit as defendants, and against some the plaintiff failed to recover, they are entitled to obtain their costs from him, unless the judge before whom the case was tried shall certify that there was reasonable cause for making them parties. The act of 8 and 9 William III is in force in Pennsylvania.
   By the Court.

By the 1st section of the act 8 and 9 William III, cap. 12, s. 1, it is enacted: “That where several persons shall be made defendants to any action or plaint of trespass, assaults, false imprisonment, .or ejeotionefirmce, and any one or more of them shall be upon the trial thereof acquitted by verdict, every person or persons so acquitted shall have and recover his costs by suit, in like manner as if the verdict had been given against the plaintiff or plaintiffs, and acquitted all the defendants, unless the judge before whom the cause shall be tried, shall, immediately after the trial thereof, in open court, certify upon the record that there was a reasonable cause for making such person or persons a defendant to such action or plaint” (Roberts, Dig. of Stat. 139,140). This statute is reported to be in force in Pennsylvania (3 Binney, 625).

The case under consideration comes within the very words of the act, being an action of ejeotionefirmce, and the aid of authority is scarcely necessary. In cases not within the statute, if the plaintiff proceed to trial and recover judgment against any one defendant he will recover full costs, and the other defendants are not entitled to their costs. But if judgment be taken by default or on hearing against some in cases under the statute, and other defendants succeed in their defence, the plaintiff will have his costs against those defaulted, or from whom he recovers judgment, and the othei* defendants are entitled to their costs against the plaintiff (2 H. Bl. 28; 6 Taunton, 398; Hulloch’s Law of Costs, 142, 3 and 4; Bacon’s Abt., title Costs, 6).

Berryhill and H. Alrielcs, for plaintiff.

Alricks, MeCormiek, and Fisher, for defendants.

Even where there are several issues, and some are found for plaintiff and some for defendant, each one is entitled to costs on the issue found for him, and the court will direct them to be taxed accordingly (5 Dowl. 687 ; 1 Dowl. 533; 1 Pennsylvania Practice, 643), or probably under our practice, will not permit the plaintiff to charge for his witnesses on the issues found for the defendant (5 P. L. J. 94).

Judge Kennedy fully recognizes the right of the acquitted defendants to recover their costs in cases coming within the statute of William III, in Maus v. Maus (10 Watts. 87). We were not called on to certify on the record “ immediately after the trial,” that there was probable grounds for making these parties defendants; and we do not consider that the plaintiff has any equity which could justify ns in certifying at an after time, nunopro tune, even if we possessed the power. Five individuals were sued, two of whom we are of the opinion now, as well as on the trial, were improperly made parties, not living in actual or constructive possession of the land, and having no interest therein. Two others took a separate defence for the land, severally held by them, and on the trial for that portion all of the costs accrued. A verdict went in their favor on the merits, and in equity and good conscience they are entitled to their costs, though it must be conceded that they could not obtain them independent of the statutes. The fifth party had no defence, and against him the plaintiff recovered a verdict. He held his land by a separate title, and severed in his defence, the Cassels disclaiming to hold either title or possession with him. In our opinion the only hardship is in throwing on Beaver the whole expense of the trial, as no part of the plaintiff’s evidence was necessary as against him. The witnesses of the plaintiff were all introduced to establish the issues against the Cassels. Yet we can afford Beaver no relief, as there is a general verdict and judgment against him.

The docket costs, plaintiff’s bill, etc., -can all be taxed and recovered from Beaver, and the other defendants are entitled by law to have the bills for their witnesses taxed against the plaintiff and to demand process for its collection. It is therefore ordered that the first four defendants on the record who have had a verdict in their favor be permitted to tax the cost for their witnesses (except for the attendance of Forney and Foucht, who were in court as parties), and on the bill being duly taxed, allowed, presented, and demanded, the court will enforce its payment by attachment.


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      Court of Common Pleas, Dauphin County,

      February 11th, 1856.
    Miller v. Lenhart.
    A mechanic’s lien can only be filed against the house upon which the labor was done, or the materials furnished, the ground upon which it stands, and the out-buildings necessary for its enjoyment. If it has been entered against any other property, a judgment confessed in favor of the mechanic or materialman at the time it was filed will not cure this defect. The penalty for entering a lien in this manner is to be postponed to other creditors. (Lauman’s Appeal, 8 Barr,. 473, distinguished.)
   By the Court.

The legislative intention.hi passing laws to secure a lien to mechanics and materialmen on the buildings erected, must not by construction be carried beyond the design of the enactment, and extended to other buildings on which no labor Avas bestowed, and for erecting Avhich no commodities were furnished. The ground on which the building stands must from necessity be held Avithin the grasp of the lien, else it would afford no security; and to the immediate site is added the necessary curtilage, to be determined either before or after the sale. This curtilage embraces no more land than is requisite for the enjoyment of the building, taking into consideration the object of its erection; and in no event can include other buildings on which no labor was bestowed, or materials furnished, unless they are connected with and indispensable to the enjoyment of the main construction. The farthest the courts have gone, is in permitting the mechanic, who had erected a farmhouse, to include within his lien the outhouses immediately connected with it, on the same farm, and indispensable to its enjoyment as a farmhouse (Lauman’s Appeal, 8 Barr, 473). The only class of cases in which a joint lien has been tolerated, is, where the same man has furnished materials for a block of buildings, erected at the same time, and for the same person (3 H. 265). But in that case it is decided that a lien so filed against disconnected blocks is irregular. In Thomas v. James (7 W. & S. 381), where a claim for materials furnished for various disconnected buildings belonging to the same person was filed, it Avas held to be irregular, and Avas postponed to subsequent liens. In the case under consideration the lien is filed against a brick dwelling-house, a frame slaughter-house, meat-house, ice-house, and stable, all erected on one lot in this borough, which is particularly described by metes and bounds. The evidence sIioavs that the erections are on two distinct lots, Avith an alley between them; the stable and slaughter-house being on a different lot from the house, and although used by the present occupant for the general purpose of his business, yet being fully susceptible of division, and in fact could not well be used for any common purpose, except by a butcher. The dAvelling-house has not necessarily any connection whatever with the slaughter-house and stable. The frame dwelling-house, ice-house, and meat-house erected on the same lot with the brick dwelling, were built in the year 1853, with materials furnished by other persons, and the slaughter-house in the same year by another workman, all of which were completed before any portion of these materials were furnished by McAllister & Cox. Therefore, it is very clear that an effort was made in this case to obtain a lien on buildings for which no portion of the materials were furnished by the present claimants, and which were not necessarily within the curtilage or ground occupied by the main building, but entirely disconnected therefrom. After the matérials were furnished by McAllister & Cox, and before any lien was filed, Messrs. Miller and Willson each obtained judgments against Lenhart, which were general liens on all his property ; yet subject to be overreached in part by the materialmen, had their claim been filed in proper form. We say in part, because they had no right to include those buildings for which they had furnished no materials, to the injury of the other lien creditors, the penalty for which, under the 13th section of the act of 1836, is having their claim postponed in favor of such creditors.

It may be said that this case does not come within the provisions of that section; that the materialmen had not furnished materials for two or more buildings owned by the same person, and was, therefore, not required to designate for which they were furnished. It is true that it is not within the letter, but as we conceive comes within the spirit and intention of the act. The object to be avoided was the uncertainty and confusion arising from spreading the lien over various structures, so that no one could ascertain the precise sum properly chargeable to each building, leaving the lien creditor in uncertainty as to what he could hold; a purchaser of one of the buildings in doubt as to the amount of charge against it; and in case of a judicial sale, the courts unfurnished with proper data to make distribution of the money. The same evil exists in the present case; and the injustice and impropriety of the lien is still more obvious. Here, after liens have attached, the materialmen endeavor to spread their claim over buildings on a different lot, and for the erection of which they contributed nothing. The older lien creditor is left in the same uncertainty as to what his security lawfully holds, and the court is thrown into a dilemma in making distribution, all from want of a fair compliance with the law by the materialmen.

We have been referred to cases in which there was vagueness and uncertainty in the description of the location of tire buildings, but they have no bearing on the present case; that is not the evil here. There is no mistaking the location of these buildings from the description filed, but the error consists in spreading the lien over buildings for which no materials were furnished, and which were no part of the curtilage. In fact, it would have been unlawful for the sheriff to have sold both of these lots, with their necessaries together. I am well satisfied that the case under consideration comes clearly within the mischief intended to be guarded against by the 13th section of the act of 1836.

It is argued that the judgment rendered by confession on the day the lien was filed, cures this and all other defects; and for that we are referred to Lauman’s Appeal (8 Barr, 477-8). The curing effect of a judgment, as there decided, goes merely to informalities in the amount or description of the claim. Such errors are cured by a judgment, which renders the lien certain on all those points; but it tends to cure nothing here. It cannot extend the lien to other lots and other buildings not lawfully bound before; or aid a court or party in determining what portion of the claim for materials shall be applied to the one house or the other. On the whole we are of the opinion that the auditor came to a correct conclusion in this case, and the claim of the materialmen must be postponed to that of the other lien creditors.

The report of the auditor is confirmed, and it is ordered and decreed that the money be paid out according to the report.


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      Court of Common Pleas, Dauphin County,

      April 24th, 1855.
    Metzgar v. The Directors of the Poor of Dauphin County.
    The treasurer of Dauphin county is not entitled to compensation for receiving and disbursing money on account of the poorhouse.
   By the Court.

There is no act of Assembly which either in terms, or by the most distant implication gives any compensation to the treasurer of Dauphin county for receiving and disbursing money on account of the poorhouse.

I am unable to perceive any principle on which a percentage should be claimed -for that service, as the treasurer has clearly been fully compensated in his settlement with the county commissioners. The money secured by the treasurer all comes from one common source, the people, paid in through the collectors of the public taxes, and a certain portion is set apart for the support of the poor. The treasurer pays it out on the orders of the directors, and he is allowed in his settlement with the county auditors for all money received and paid out. This money has been received but once and paid out but once by the treasurer, and for that service the county has already paid him a commission. I am at a loss to understand upon what principle, legal or equitable,, he can claim it again. Even if we could permit him to recover on a quantum meruit, which we cannot; he merits nothing. The money is recovered from the collectors but once; and on a sum being set apart for the poorhouse, is paid out, and paid but once. For that service he now demands double payment from the county. The act of Assembly requiring the county treasurer to disburse the money on the orders of the directors of the poor gives no compensation, because the legislature well knew that the duty would not increase the labor or risk, and that by law the treasurer was paid his percentage by the county. The present incumbent took the office with a full knowledge that the duty was to be performed.

Mumma, for plaintiff.

Fox, for defendant.

The act of 1841, to which we are referred in relation to the duty of expending money for the use of the county prison, militates strongly against the claim of the treasurer, as it shows that when the legislature intended that he should receive compensation it was given in express words, and a tribunal designated by which the amount was to be fixed.

There is not the shadow of a claim here, legal or equitable. Therefore we render judgment on the case stated in favor of the defendant.