author: Mr. Justice Mercur

text:
    Maitland versus Martin.
    1. If an agent in perfecting a sale for his principal acts strictly within the line of his duty, and in good faith, and without fault on his part in the management of the sale he incurs damages, they must be borne by the principal and not by the agent.
    2. A broker, in Philadelphia, in 1872, purchased, for B., five South Carolina bonds, which B. allowed to remain in the broker’s possesssion until 1875, when he gave him a direction to sell them. The broker sent them to his correspondent, in Now York, who made the sale and returned a draft for the proceeds. Before the broker had paid over these proceeds he received intelligence, from his correspondent, that three of the bonds were among certain bonds which the legislature of South Carolina, in 1874, had repudiated, and which the New York Stock Exchange, by an order, had declared not a “ good delivery” on a sale of regular South Carolina bonds. The correspondent purchased other bonds to replace the non-fundable ones, and the broker paid the sum so advanced, and then offered to return the three bonds and account for the proceeds of the two others sold. B. refused, and brought suit and sought to recover the whole amount of the proceeds of the original sale of the five bonds. Held, that B. could not recover, and if the broker, in effecting the sale of the bonds, acted strictly within the line of his duty and in good faith, and a loss was incurred, B., who was his principal, was alone liable. Held, further, that although by the failure of the broker to disclose his principal to his correspondent, he may have become personally liable to the latter, yet that did not bar the right of the broker to require his principal to make good the loss.
    January 18th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1878, No. 102.
    Assumpsit by Caroline Martin against Camille DTnvilliers and John J. Maitland, trading as C. DTnvilliers & Co., to recover the value of certain bonds purchased by said firm as brokers. DTnvilliers died after suit brought, and it was afterwards proceeded with against Maitland alone.
    The facts are fully stated in the opinion of this court. At the trial, Pratt, J., charged the jury as follows : “ The plaintiff, a sister of Mr. Martin, places money in the hands of defendants, as brokers. Mr. Martin, as agent for his sister, gave a written order to buy South Carolina bonds. He says April and October. Defendants say January and July. On written order April is erased and July substituted. Mr. Martin says that after the purchase he was informed by defendants that the purchase made on his order was of January and July bonds. He then objected, but was told that these were just as good as the others, and afterwards said nothing. There was no positive acceptance on his part further than acquiescence goes. The bonds were never delivered to Martin. You must judge whether Martin by his conduct allowed defendants to believe that he acquiesced.
    “We find these bonds in the hands of the defendants as the property of the plaintiff.

      “In 1875 the defendants were directed to sell the bonds. An order was sent by defendants to a New York broker to sell. The following day the bonds were shipped. This was the 14th of May. [On the same day — the 14th — the defendants were advised by their New York correspondent that the bonds were sold, and a check was sent over for the amount, and was received by defendants. This was a completed transaction.]
    “ The purchaser found, upon seeing the bonds, that three of them were not marketable, and refused to-receive them. Defendants thereupon purchased other bonds and delivered them to the purchaser, leaving three of the bonds ordered by the plaintiff to be sold, on hand.
    “ At the time of this sale the defendants were agents for the plaintiff, in relation to these bonds. An authority to sell does not imply an authority to buy. An agent who exceeds his authority adopts the act as his own, and is no longer agent.
    “ [Plaintiff ordered her bonds sold at thirty-three, and they were sold at that price. If you believe this, then, as matter of law, DTnvilliers was responsible for rescinding the contract.] They thereby adopted the theory of the purchaser, accepted the return of the bonds, and purchased others to supply their place, and fill their contract. By this act they relieved the purchaser from liability to be sued upon his contract.
    “ [If defendants rescinded the contract and took back the bonds sold, and bought others to fill the contract, .without authority from the plaintiff, they adopted the loss as their own.]
    “ [If the defendants agreed to take these bonds back without the consent and authority of their principals, and substituted others purchased by them in lieu thereof, they accept these bonds as their own. The three bonds are in the hands of defendants as their property], and the measure of damages would be the amount realized from the sale, less their lawful commissions.”
    The verdict was for the plaintiff for ¡p1784.54, and after the entry of judgment the defendant took this writ, alleging that tho court .erred in the forégoing portions of the charge contained in brackets.

      Greorge Bull and James H. Campbell, for plaintiff in error.—
    The assumption of the court below that this was a completed transaction was clearly an error. To make it complete required a delivery of the bonds to the purchaser and his acceptance. The plaintiffs in error agreed to deliver marketable bonds, but were unable to fulfil their contract, because their principal could not produce such bonds. Clearly, they were not liable if they acted in good faith in endeavoring to effect a sale, but failed on account of a defect in the bonds: Stocking v. Sage, 1 Conn. 519; Andrews
      v. Kneeland, 6 Cowen 354; LeRoy v. Beard, 8 Howard 468; Courcier v. Ritter, 4 Wash. C. C. 549.
    The act of the agent is the act of the principal, and in making the contract to sell bonds, as between principal and agent, it was simply the contract of the former. The contract here was to sell and deliver South Carolina bonds, which meant, as defined by the rule of the Stock Exchange, fundable bonds, or such bonds as were recognised by the authorities of South Carolina. It is plain, therefore, that Caroline Martin was bound to deliver fundable bonds. Three of the bonds held by her were non-fundable, and could not be delivered in fulfilment of the contract made. Under these circumstances, her agents were authorized to purchase other bonds to make the contract good: Story on Agency, sect. 227 Paley on Agency 197.
    The authority of a broker to bind his principal is not in all cases confined to the power which the principal intended to confer on him. The interests of the mercantile world require that he should bind his principal within the limits of the authority with which he has been apparently clothed, in respect to the subject-matter of the sale: Andrews v. Kneeland, 6 Cowen 358; Long on Sales 233; Pickering v. Busk, 15 East 38.
    The fact that C. D’Invilliers & Co. made the contract to sell in their own names, without disclosing the name of their principal, makes no difference as to the relative positions of principal and agent: Story on Agency, sect. 28. If a broker sells the goods of his principal in his own name, without special authority to do so, inasmuch as he exceeds his proper authority, the principal will have the same rights and remedies against the purchaser as if his name had been disclosed by the broker: Baring v. Corrie, 2 B. & Al. 137; Saladin v. Mitchell, 45 Ill. 79.

      Thomas J. Diehl, for defendant in error.
    — It is an agent’s imperative duty to give his principal timely notice of every fact or circumstance which may make it necessary for him to take measures for his security, and by omitting to apprise the plaintiff of the crisis, he took on himself all but the unavoidable losses that were incident to it: Devall v. Burbridge, 4 W. & S. 306.
    • If an agent exceed his authority, he thereby binds himself individually, but his principal is not bound: Layng v. Stewart, 1 W. & S. 222. It certainly was the duty of the defendant at all times to keep the plaintiff, his principal, apprised of his doings, and to give him notice within a reasonable time of all such acts and circumstances as were important to his interest, and if, by his neglect to do this, the plaintiff has suffered a loss, he is entitled to be indemnified by the defendant: Brown v. Arrott, 6 W. & S. 402.
    Under the argument of the plaintiff in error, it was clearly the duty of the brokers to have' given their principal, the plaintiff below, an opportunity to assert her rights against the purchaser by giving up the name, which it appears they had. What the brokers in fact did, was to rescind the contract after it had been fully executed, or, as they call it, cancel the sale; this without notice to their principal. Did they not by so doing exceed their authority so as to make the act their own, and themselves liable to their principals ? Patterson v. Moore’s Ex’rs, 10 Casey 69; Hampton v. Speckenagle, 9 S. & R. 212.
    May 6th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,

This action was brought by the defendant in error for money had and received for her use. The money sought to be recovered came into the hands of the plaintiffs in error under the following circumstances : In August 1873, being brokers in the city of Philadelphia, they purchased for the defendant in error five South Carolina bonds, of the nominal value of $1000 each. She left the bonds in their possession. They were sealed up in an envelope, her name endorsed thereon, and deposited in the safe of the plaintiffs in error in the “Fidelity.” They thus remained until May 1875, when she instructed the plaintiffs in error to sell them at thirty-three per cent. There being no market in Philadelphia for them, on the 12th of May they directed their correspondents, Cecil, Stout & Thayer, brokers in New York, to sell them. By dispatch, on the 14th of May, they advised the plaintiffs in error that they had sold at the price named. Immediately thereafter the plaintiffs notified the defendant of the sale. On the same day the plaintiffs forwarded the bonds to their correspondents by express, and requested a draft to be remitted for net proceeds. On receipt of the bonds, Cecil, Stout & Thayer remitted the proceeds to plaintiffs in error on the 15th May. On the 17th May, and while the proceeds remained in the hands of the plaintiffs in error, they were notified by Cecil, Stout & Thayer that three of the bonds were not fund-able, and not a good delivery at the price for which they had sold them; and, therefore, they had purchased others at the same .price to supply the place of those not fundable, and held the plaintiffs in error for the sum thus advanced. On the same day the plaintiffs in error advised the defendant of the substance of this notice, and further requested her to consider the sale of 3000 of the bonds reported by them sold, as cancelled. They also directed Cecil, Stout & Thayer to return the three bonds not accepted, and draw on them for the sum paid. Thereupon Cecil, Stout & Thayer returned the bonds, and the plaintiffs in error paid them the sum which they had advanced.

The plaintiffs in error offered to return the three bonds to the defendant, and account for the proceeds of the two others ; but she denies their right to hold her responsible for the money thus paid by them, and seeks to recover the whole sum agreed to be paid for the five bonds.

It appears, by the evidence, that about the 1st of June 1874, the treasurer of the state of South Carolina issued a notice that certain bonds of that state had been declared null and void by the legislature, and would not be recognised. Thereupon, June 2d 1874, the New York Stock Exchange made an order that the bonds embraced in said notice should not pass, as a good delivery, on a sale of Tegular “South Carolina bonds,” after that date. Three of these bonds appear to have been repudiated by the legislature, and at the time of the sale, in May 187 5, were not fundable, and as a consequence were almost worthless. Cecil, Stout & Thayer professed to sell “ fundable bonds” only. They supposed all of the five to be of that class. The.purchaser had a right to suppose he was buying such. Discovering that three of them were not of that kind, he refused to accept them. Cecil, Stout & Thayer thereupon replaced them with such bonds as filled the contract.' If these facts be proved, they undoubtedly had a valid claim against the persons in whose behalf they agreed to make the sale. At the time the plaintiffs in error directed them to make the sale, they did not disclose the name of their principal; yet this in no manner changed the legal rights and liabilities between her and them. The specific bonds were her property. The plaintiffs were her agents to effect a sale. It was to be made for her benefit. The plaintiffs were bound to due care, prudence and diligence in the execution of the powers committed to them. These they appear to have exercised. They kept their principal informed of their action. The defendant is not shown to have sustained any damage by reason of any information being withheld from her. These bonds had depreciated while owned by her. If the plaintiffs in error, while acting as her agents in effecting the sale, without any fault on their part, became liable, she, and not they, must bear the loss.

The object to be effected was a sale of the bonds. The plaintiffs in error, as well as Cecil, Stout & Thayer, were acting as agents to reach that end. An agreement to sell fundable bonds, and a payment by the purchaser to one agent, and his transmission to another agent, did not necessarily complete the transaction.

It required a delivery, or a readiness to deliver the bonds, of the kind sold, according to the contract. Anything less than that left the transaction incomplete, unless further fulfilment was waived.

In fully perfecting a sale the plaintiffs in error were strictly in the line of their duty. We discover nothing affecting their good faith. If, then, without fault on their part in the honest management of the business of the defendant, they incurred damages, those damages must be borne by her and not by them: Stocking v. Sage, 1 Conn. 519; D’Arcy v. Lyle, 5 Binn. 441; Whart. on Agents, sect. 316.

If the plaintiffs in error in good faith carried out the contract made with the purchaser, they did not thereby adopt the loss as their own and relieve the defendant from her legal obligation to reimburse them. Although they took back the bonds, without the express consent and authority of the defendant, yet they did not thereby necessarily accept them as their own. If the facts are found to be as stated, the purchaser was justified in refusing to accept the bonds. If so justified, it was clearly within the general scope and authority of the plaintiffs in error, as her agents, to fulfil the contract, and their acts, in contemplation of law, became her acts. Although, by failing to disclose their principal, the plaintiffs in error may have become personally liable to Cecil, Stout & Thayer, yet that does not bar the right of the plaintiffs in error to require the defendant to make their loss good. It therefore follows that many portions of the charge were too unfavorable to the plaintiffs in error, and the assignments are substantially sustained.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Chief Justice Agnew

license: Public Domain

text:
    Yard’s Appeal.
    1. A. bequeathed a certain sum to B. and 0., in consideration of their long and faithful services as her agents and friends and for the care and attention bestowed on her estate. B. died before the testatrix. Held, that by virtue of the Act of 31st of Mai-ch 1812, abolishing the right of survivorship as an effect of joint tenancy, this bequest was a-legaey to B. and C. as tenants in common, and that the moiety of B. did not survive to C., but lapsed.
    2. The Act of 1812 applies to legacies as well as devises.
    3. Kennedy’s Appeal, 10 P. F. Smith 511, followed.
    January 21st 1878.
    Before Agnew, C. J., Sharswood, Mer- ' cur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from the decree of the Orphans’ Court of Philadelphia county: Of January Term 1877, No. 76.
    Appeal of Charles Yard from the decree of the court confirming the report of the auditor in the estate of Mary'P. Loxley, deceased.
    The ' controversy arose over the construction to be given to the following codicil of decedent’s will:—
    “And whereas, I have given unto my friends, John Yard, Jr., and Charles Yard, certain bequests : Now, in addition to the same and in consideration of the long and faithful services by them, both as agents and friends, and from the care and attention bestowed on my estate, increasing the same, and their attention to my bodily comfort, I desire to give them a more substantial conn pensation and evidence of my regard for them and their services. I do therefore give, devise and bequeath unto said John Yard, Jr., and Charles Yard, all the City of Philadelphia loans of every description now standing in my name, amounting in all to the sum of $116,300, or the equivalent of the same in money, should I dispose of the same, or any part thereof, during my lifetime, this bequest to be free and clear of collateral inheritance tax, and in addition to what I have in my said will devised to them and to be received by them, in addition to their usual compensation or commissions as executors for settling my estate.”
    John Yard, Jr., and Charles Yard were partners in the real estate business, and as such had charge of the entire property of Miss Loxley for a number of years prior to her decease. John Yard, Jr., died after the date of the above codicil and before the testatrix. His co-legatee, the appellant, claimed the whole bequest of city loan, as accruing to him by right of survivorship. The residuary legatees claimed that one-half thereof, bequeathed to John Yard, Jr., had lapsed, by his death, into the residuary estate.
    The auditor reported that under the Act of March 31st 1812, Purd. Dig. 815, as interpreted in Kennedy’s Appeal, 10 P. F. Smith 511, the legatees were tenants in common, and not joint tenants, and accordingly awarded a moiety of the city loan to the residuary legatees.
    The court dismissed the exceptions filed to this report, and confirmed the same, which was the error assigned by Charles Yard, who took this appeal.

      J. Gooke Longstreth and Henry 8. Hagert, for appellant.—
    The vice of the auditor’s argument consists in applying to a question of testamentary intention a 'rule applicable to vested interests in property. The legacy in this case is clearly a specific legacy : Barton v. Cooke, 5 Vesey 461; Blackstone v. Blackstone, 3 Watts 335; Ludlam’s Estate, 1 Harris 188.
    The reason why this legacy should take effect as a gift of the whole thing specifically described and designated, does not depend upon the result of a discussiou as to whether the persons named as legatees would, in the event of their both having survived her, have taken as tenants in common or as joint tenants. Annexed to the bequest of the entire chattel are no words of severance or distribution; and there can be no doubt that the testatrix intended that the whole should pass, and that that was the primary intent, without regard to what disposition her beneficiaries might make of it after they got it. And so the civil law, making a distinction between a conjoint legacy and a legacy of separate and distinct shares, provides in terms that a conjoint legacy shall go to the survivors of the class. And in Mackie v. Story, 3 Otto 589, the Supreme Court of the United States decides that, in the case of a conjoint legacy to two, one dying before the testator, the whole goes to the survivor. At common law, a conjoint legacy does not become severable by reason of the death of one of the class of legatees during the lifetime of the testator: Webster v. Webster, 2 P. Wms.t347; Cray v. Willis, Id. 529; Campbell v. Campbell, 4 Bro. C. C. 15; Morley v. Bird, 3 Vesey, Jr., 628, 632; Whitmore v. Trelawny, 6 Vesey, Jr. 130.
    The auditor draws from the decision in Kennedy’s Appeal, the inference that the bequest in this case must be read as though it contained words of severance. That is, he imports into the specific bequest of a chattel an intention, on the part of the testatrix, to divide it, without any other warrant than the law as settled in that case in respect to devises of real estate. The very point in that case was, that in a devise of real estate to several, on the death of one before the devisor, the remaining devisees do not take the whole, but only their aliquot parts of the land. And this by reason of the devise speaking from the date of the will, and from that time vesting an interest in the deceased devisee. Here there was an estate on which the Act of 1812, which applies only to vested estates, could operate.

      L. O. Massey, U. O. Smith, J. B. Townsend, George W. Biddle and JE. Spencer Miller, for appellees.
    — The rule stated -by the appellant, that in the case of a bequest to two, without more, the legacy is to them as joint tenants, and will survive as a whole to any survivor of the beneficiaries living at the testator’s death, may be conceded to be that of the common law; but, it is submitted, that rule has been altogether abolished by the Act of 31st March 1812, Purd. Dig. 815, and if it were not, it would have no application to the present case.
    A devise of real estate to two or more, without words of severance, by the operation of the Act of 1812, is to them as tenants in common, and the parts of those dying in the lifetime of the testator will not accrue to the survivor: Duncan v. Forrer, 6 Binn. 193; Seely v. Seely, 8 Wright 437; Beeson v. Miller, 15 Pitts. Leg. Jour. 187; Kennedy’s Appeal, 10 P. F. Smith 511. The appellant, however, contends that in Kennedy’s Appeal, the will, as to the devise, spoke from its date, and that the Act of 1812 has proprio vigore no effect upon an ambulatory disposition of personalty. But the decision in that case could not well be, as it was not, put on any such ground, and there is no argument adduced by the learned chief justice to support the judgment in that case that does not apply with equal force to the present. Joint tenancy in chattels, as to the creation of the estate, does not differ from joint tenancy in real estate: 2 Bl. Com. 399. The act operates on a bequest of personalty precisely as it does on a devise of real estate, as it extends by its terms to each kind of property, and makes no distinction between them in regard to the effect of its enactment. The question to be determined in all cases of this nature is what-estate would have vested if all the legatees had survived. The estate in this case eo instanti it vested in both the legatees would have become, by the operation of the Act of 1812, a tenancy in common.
    At the common law of Pennsylvania this bequest would have been construed as one to tenants in common. The later English rule, that there is no presumption against joint tenancies created by will, has never obtained in this state, where the courts, long before the Act of 1812, held, that the intention of the testator to create a joint tenancy must clearly appear; and in those few cases which have arisen since the statute that doctrine has been affirmed. As early as 1797, the High Court of Errors and Appeals, in McPherson v. McPherson, Add. 327, decided that they “ ought to lay hold of every possible construction to make it a tenancy in common.” Reasons quite as strong as those moving the court in McPherson v. McPherson, to declare the devisees tenants in common, exist here. The object of the bequest, as stated therein, was to reward “ the long and faithful services by them both as agents and friends.” The services rendered as agents were to her estate; those as friends, to her bodily comfort. They, especially the latter class, could he rendered, not in a joint, but only in an individual capacity. In the absence of proof to the contrary, we must take it for granted that the services rendered by the beneficiaries were equal, and that the compensation was intended to be commensurate with the services.
    January 28th 1878.
   Chief Justice Agnew

delivered the opinion of the court,

We have but a single question in this case, whether a bequest to “ John Yard, Jr., and Charles Yard, of all the City of Philadelphia loans of every description now' standing in my name, amounting in all to the sum of $116,300, or the equivalent of the same in money, should I dispose of the same, or any part thereof, during my lifetime,” contained in the will of Mary P. Loxley, survived to Charles Yard on the death of John Yard, Jr., before the death of the testatrix, or whether John Yard’s share lapsed.

This question is really settled by the decision in Kennedy’s Appeal, 10 P. F. Smith 511. It is true the subject of discussion in that case was a devise of real estate, while that before us is a bequest of personalty. But Kennedy’s case was not rested on any difference between realty and personalty, or a difference between the effect of a devise and a testament. The case was ruled upon the effect of the Act of 31st March 1812, abolishing the right of survivorship as an effect of joint tenancy. This act relates to personal as well as to real estate, and the policy which dictated its enactment seems to be equally applicable to each. The reasons, therefore, given in the opinion in Kennedy’s Appeal apply with equal force to the bequest in this case. The Act of 1812 has become a rule of property, and as such it is better that its interpretation should be uniform, thereby producing certainty in the interpretation of wills, instead of giving a diversity of effect to the law, and thereby uncertainty and confusion in interpreting wills. Referring, therefore, to Kennedy’s Appeal for the reasons there given, further discussion is unnecessary.

It is proper, before closing, to say that we give no opinion on the question whether the lapsed legacy tó John Yard, Jr., fell into the residue. The parties representing that question are not before us.

Decree affirmed, with costs to be paid by the appellant, and the appeal is dismissed.


author: Mr. Justice Woodward

text:
    Kellberg’s Appeal. Kellberg’s Estate.
    1. Where it is clear that the relations between the administrator and the legal representatives of a decedent are not harmonious, and it is manifest that the interest of the administrator is adverse to those of such representatives, nothing but some controlling necessity will justify his retention as administrator.
    2. An inventor assigned his patent for his invention to a company for a royalty, to be paid quarterly. After his decease, the secretary of the company induced the widow of decedent to renounce to him her right to administer and himself took out letters of administration upon the estate of the decedent and refused thereafter to enforce any claim against the company for the royalty, alleging that the claim expired with the inventor’s death. The widow petitioned the Orphans’ Court for the removal of the administrator for mismanagement and that court dismissed her petition ; Held (reversing the court below), that there was neither necessity nor just nor legal reason why a representative of the company, in order to promote its interests, should at the same time be the representative of the decedent’s estate, and the prayer of the petitioner should have been granted.
    3. It seems, that under the Acts of Congress for recent years, the assignees of a deceased patentee, to secure a re-issue of the patent which they hold, need not first obtain the participation of the personal representatives of said patentee, but may make direct application therefor.
    January 21st 1878.
    Before Agnew, C. J., Sharswood^ Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1878, No. 57.
    Appeal of Laura M. Kellberg from the decree of the court refusing her petition to vacate letters of administration granted to Frank B. Williams, in the estate of her deceased husband, John W. Kellberg.
    The petition and the answer of Williams are substantially set forth in the opinion of this court.
    In the.court below, Hanna, J., in dismissing the petition said (O’Brien, J., dissenting) :—
    “ This matter having been heard upon petition and answer, without a replication, the answer must be taken to be true in all its allegations. In effect, the petitioner demurs to the answer: Bright. Eq. 528; Russell’s Appeal, 10 Casey 258; Thomas v. Ellmaker, 1 Pars. 98.

      “ The grounds stated for the vacation of the letters of administration and removal of respondent are, that the petitioner, who is the widow of decedent, was unduly and improperly influenced by the respondent to renounce her right to administer, and that since obtaining letters of administration he has mismanaged the estate.
    “ As to the first cause of complaint, the answer contains an unqualified denial, ‘ that any inducements of future advantage to the estate were held, out to the petitioner to induce her to allow respondent to administer.’ And the mismanagement complained of appears to consist in the delay and unwillingness of the administrator to institute a suit against the former employers of decedent to recover moneys which petitioner is advised are due to the estate. The administrator admits he has delayed bringing suit, but avers he is ready and willing to commence the same ; and alleges as the reason for his past delay that three several counsel, with whom he consulted, advised him, as matter of law, against his right to recover in such suit.

      “ It also appears that the administrator was not in the possession of funds of the estate to enable him to commence and prosecute legal proceedings, as the decedent at the time of his death was not the owner of any real estate, and had but a very small amount of personal, all of which has been retained by the petitioner. In view of all the facts appearing from the petition and answer, and applying the well-settled rule of pleading referred to, we are unable to discover any just reason for vacating the letters of administration and removing the respondent. It may also be stated as an additional reason for declining to grant this application, that the year allowed by law for the settlement of the estate will soon expire, when, upon the adjudication of the account of the administrator, the question as to his liability for the delay complained of can be fully determined.
    “ The petition is therefore refused.”
    This refusal was the error alleged by the petitioner, who took this appeal.

      J. Cooke Longstreih and Leonard Myers, for appellant.
    — The failure of the administrator to take any steps to assist or enforce this claim for royalty until cited, was such mismanagement as brought him within the provisions of the Act of May 1st 1861, Purd. Dig. 454, pi. 242, Pamph. L. 680, under which this application was made. But suppose this to be the case of a stranger administrator neglecting to present or enforce a claim for three quarterly payments, each falling due after his intestate’s death. This, it is contended, is mismanagement: Piper’s Appeal, 8 Harris 67; Chew’s Estate, 2 Pars. 153; Harper v. Straws, 14 B. Mon. 48; Winship v. Bass, 12 Mass. 199; Thayer v. Homer, 11 Metc. 104; Drake v. Green, 10 Allen 126. Because counsel should give an adverse opinion on the construction of the contract to the claim, it does not follow that the estate should not have a chance to prosecute it through other instrumentalities than proceedings instituted by or in the name of an officer of the debtor corporation — provided the claim be not palpably absurd. Looking at the words only of the contract between Kellberg and the Bullock Printing Press Co., the payment of $150 every three months thereafter was without limitation of time, and, strictly construed, would imply a perpetually recurring liability. The suggestion that the assignees of a patent can be relieved of liability for royalties by the death of the inventor has at least the merit of novelty.

      Peirce Archer, Jr., and Lewis C. Cassidy, for appellee.
    — If the object be simply enforcement of the contract by suit against the Bullock Company to compel payment of the sums named, during the running of the patent, then the appellant has ample remedy, as the appellee, has never been requested to bring such suit, and therefore has never refused, though without means to do so, but is ready and willing to sue, or permit the appellant to use his name to sue, for the alleged breach of the agreement. The construction of the contract of assignment of the patent, as to whether the payments ceased with the life of the assignor, was referred by the appellee to three members of the bar in succession, whose unanimous opinions and advice were against the right of recovery. It is submitted that this acquits him of the charge of bad faith. The intestate left no other estate. How, then, can it be said that the appellee is wasting or mismanaging it ?
    The recent case of Parsons’s Appeal, 1 Norris 465, is an adjudication upon the proper construction of the Act of May 1st 1861, under which these proceedings were carried on. In that case Judge Sharswood said, p. 467 : “ It is a stringent and summary process to remove an executor, and it must clearly appear from the evidence that a case was made out under it, and that the discretion of the court was properly exercised. It must clearly appear that the executor is wasting or mismanaging the property or estate under his charge.”
    It is submitted there is no justification for the present proceeding, and that if the appellant simply desired her rights under the contract tested, she has ample opportunity by suit at law, or by motion to surcharge the accountant when he files his account at the end of the year.
    May 6th 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

At the time of the death of John W. Kellberg, on the 1st of November 1876, an agreement was in force between the Bullock Printing Press Company and himself, which had been executed on the 4th of April 1874, with the stipulation that it should date from the 1st day of July 1878. By this agreement Kellberg assigned to the company all his interest in certain patents which had been issued to him for improvements in printing machines, the company promising,- among other considerations, to pay him, he having been and consenting to remain in their employment, “ in addition to his regular salary of twenty-six hundred dollars, the further sum of one hundred and fifty dollars every three months thereafter; that is to say, on the first day of the months of July, October, January and April.”

On the 18th of August 1877, the petition of Laura M. Kellberg, the appellant, and the widow of the decedent, was presented to the Orphans’ Court, averring that after her husband’s death, she and her son, then a minor, were induced to renounce their rights to letters of administration, by the representations of Frank B. Williams, the secretary or business manager of the Printing Press Company; that they wanted the patents, which her husband had assigned to them, renewed, and had a right to the renewals; and by his assurance that if any advantage should come to her husband’s estate, she should have it. Williams thereupon was appointed administrator. The petition then complained, that from the time of his appointment he had refused to assert any claim against the company for the quarterly payments accruing after Kellberg’s death, on the ground that the right to them ceased at that time, whereas the petitioner insisted that the right was to continue during the term of the letters patent, Avhich had still several years to run. Alleging mismanagement of the estate, the petitioner prayed the removal of Williams, and the grant of administration to herself.

The answer denied, in express terms, that any suggestion was made to Mrs. Kellberg of future advantage to her husband’s estate, to induce her to renounce her right to administer in favor of the respondent. It alleged that the only reason for taking out letters, was the rule of the patent office requiring personal representatives of original patentees to apply for re-issues of patents, notwithstanding an assignment. The respondent also declared that he was ready and willing to bring suit against the company for the quarterly payments, or to permit the use of his name for that purpose by the petitioner’s counsel. He explained the reason Avhy proceedings had not been begun, to be, that he had been advised by counsel that, as matter of law, the quarterly payments stopped with the death and salary of the intestate. As the replication filed by the petitioner Avas withdrawn from the record before the hearing, the rights of the parties must rest on the uncontroverted facts disclosed by the petition and ansAver.

It is clear that the relations between the administrator and the legal representatives of the decedent are not harmonious. It may- or may not be that a continuing liability for the quarterly payments stipulated .for in the agreement of the 4th of April 1874, survived Kellberg’s death. Whatever the event, the question is one which the appellant has a right, in a proper forum, to have tried. The manifest interest of the administrator is on the side of the company,'and there would be not only incongruity, but hazard of delay, mistake or wrong, in leaving him to represent a claim to which his business relations render him directly adverse. Nothing but some controlling necessity would justify his retention in his position, and no such necessity is indicated by the facts presented. In Hassinger’s Appeal, 10 Barr 454, the opinion was per curiam. It was said that “ there are certainly prima facie rights to priority of administration; but they may be controlled by evidence of incompetence, or unfitness from circumstances.” There the interests of some of the next of kin were antagonistic to those of the decedent, and the court held that administration “ought to be committed to an impartial stranger to them, who alone would have their confidence, or -would perhaps deserve it.” In referring to some English authorities which had construed the statutes of 31 Edw. 3, and 21 Hen. 8, Judge Rogers said, in Ellmaker’s Estate, 4 Watts 34, that “the right to administration is put expressly on the ground of interest, on the reasonable presumption that the person most interested to increase the estate is most competent to administer.” The office of administrator is one of trust and confidence, and ought not to be committed to an heir who has an interest in opposition to other heirs of the estate : Bieber’s Appeal, 1 Jones 157. “ Courts,” in the language of Judge Burnside, in that case, “have constantly declined putting in persons as administrators so situated.” Winship v. Bass, 12 Mass 199, involved the construction of a statute which authorized the intervention of the judges of probate, when -any executor or administrator should become insane, or otherwise incapable of, or evidently unsuitable to discharge the trust reposed in him. The controversy arose out of the refusal of an executor to pay a debt due by him to his testator’s estate, until compelled by the judgment of a court. It was held, Parker, O. J., delivering the opinion, that it was “ unsuitable that he who represents the estate, and without whose agency a suit cannot, be conducted, should remain in office when such suit may be necessary to coerce the payment of the debt.” In this state, authority to remove any executor, administrator, guardian, committee of a lunatic, habitual drunkard, or any other trustee, was conferred by the first section of the Act of the 1st of May 1861, whenever, among other causes, it should be made to appear that he was wasting or mismanaging the property under his charge, “ or that, for any reason, the interests of the estate or property are likely to be jeopardized by the continuance of such executor, administrator, guardian, committee or trustee.” Here there are at least alleged interests involved, as to which the views of the administrator and those of the legal representatives do not coincide. Their conflicting relations make jeopardy to those interests possible. In any legal steps the appellant may desire to take in' the enforcement of her claims, she is entitled to the unhampered use of her own process, and the estate has a right to he freed from the fetter of a hostile representative, passive though the hostility may be.

In his answer to the petition, the respondent suggested that the vacation of the letters of administration granted to him would cause irreparable harm and inconvenience to the assignees of the decedent in procuring re-issues of the patents which they hold. The participation of the personal representatives of deceased patentees in applications for extensions could always be readily enforced if such participation were legally required. But the Acts of Congress of recent years have apparently not contemplated any action on the part of executors or administrators in the cases of extensions of patents granted to original patentees, who, having made assignments while living, have subsequently died. The 11th section of the Act of the 4th of July 183G, made every patent assignable in law, either as to the whole interest, or any undivided part thereof, by any’ instrument in writing. The 13th section, which related to the surrender and re-issue of defective patents, conferred, in the case of the death of the original patentee, or of an assignment by him, all the rights to Avhich, if living, he would be entitled, upon his executors, administrators or assignees. By the 18th section, it was declared that the benefit of any renewal of a patent for seven years should extend to the assignees and grantees of the thing patented, to the extent of their respective interests therein. By the 6th section of the Act of the 3d of March 1837, any patent thereafter'to’ be issued could be made and issued to the assignee or assignees of the inventor or discoverer, the assignment thereof being first entered of record, and the application therefor being duly made, and the specification duly sworn to by the inventor. And by the 33d section of the Act of the 8th of July 1870, “to revise, consolidate and amend the statutes relating to patents and copyrights,” it was enacted that patents might he granted and issued or re-issued to the assignee, of the inventor or discoverer, the assignment thereof being first entered of record in the patent office ; but in such case, the application for the patent was required to be made and the specification sworn to by the inventor or discoverer; and also, if he should be living, in case of an application for a re-issue. It was stated by the appellant’s counsel on the argument that the rules of the patent office have been framed in precise conformity to the statutes. There is neither necessity nor just or legal reason why a representative of the Bullock Printing Press Company should, in order to promote their interests, be at the same time the representative of John W. Kellberg’s estate.

The decree of the Orphans’ Court is reversed, at the cost of the appellee; and it is now adjudged and decreed that the prayer of Laura M. Kellberg be granted. And it is ordered that the record be remitted that this decree may be carried into effect.


author: Mr. Justice Sharswood

text:
    Freeman and Wife versus Shreve.
    S„ an attorney at law, for a consideration of §5000, agreed with F. that he would expedite the settlement of an estate in New Jersey, in which the wife of F. bad an interest, and secure said interest for her. At the termination of the proceedings, the chancellor in New Jersey made an order, granting a certain sum, out of the general fund in litigation, as solicitor’s costs. S. received §2500 out of this allowance, although it did not appear he acted for other parties in the cause: Held, that F. was entitled to a credit for the amount S. had thus received.
    January 21st 1878.
    Before Agnew^ C. J., Sharswood, Merour, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1877, No. 211.
    Assumpsit by E. Mercer Shreve against Chapman Freeman and Marcia R. Freeman, his wife. The narr. comprised three counts for professional services of plaintiff as attorney at law and solicitor in chancery, in a suit in the Court of Chancery of New Jersey, and in divers suits and business 'rendered to Mrs. Freeman, at her request, and necessary to her separate estate.
    The pleas were non-assumpsit, set-off, payment with leave, &c.
    The following facts were disclosed at the trial:—
    Isaac B. Parker died, domiciled in New Jersey, leaving an estate ■ of about $1,800,000, to be divided among his seven children, one of whom was Mrs. Freeman. The executors of the estate lived in Pennsylvania, but the assets were variously distributed in Pennsylvania, New York and New Jersey. There was a long legal controversy in this state as to what jurisdiction the administration belonged, which terminated in the assets in Pennsylvania being ordered to be distributed in chancery in New Jersey. Mrs. Freeman not having received any income from the estate, and being apprehensive that it was being wasted under, the mismanagement of one of the executors, who had the almost exclusive control of the same, authorized her husband, Chapman Freeman, to employ an attorney in New Jersey to attend to her interests in that state. In 1873 Mr. Freeman engaged E. Mercer Shreve, Esq., a member of the New Jersey bar and a practitioner in chancery. Mr. Freeman agreed to give Mr. Shreve $5000, if he would expedite the settlement of the estate in New Jersey, obtain the prompt payment of the income of that portion which was coming to Mrs. Freeman, and secure the safe custody of the estate and his wife’s interest, and take it out of the hands of the executors. To this proposition Mr. Shreve assented. The estate was in litigation for some time thereafter, during which the executors were discharged, the interest of Mrs. Freeman was set apart to her, and a final decree made, winding up the estate on June 1st 1875.
    For services rendered during this period Mr. Shreve had received $3100, and this suit was brought for the recovery of the balance of the $5000.
    There was a large number of counsel employed by the various parties in the estate. When the decree was made, or shortly after-wards, an application was made to the Court of Chancery, by the various solicitors who had been concerned in the litigation, for allowances in the way of taxable costs for services which had been rendered to the general estate. The chancellor made an allowance of $12,500, out of which Mr*. Shreve' received $2500. The defendants claimed that this amount should be credited on account of the $5000, but the plaintiff refused, offering, however, to credit them with the one-seventh of the $2500. The plaintiff did not inform the defendants that he had received his share of the general allowance, nor did he give any intimation to the New Jersey court of the contract he was under with deféndants for a specific fee.
    In their general charge, the court, Thayer, P. J., inter alia, said:—
    “All the chancellor of New Jersey undertook to allow to Mr. Shreve was his allowance for his services to the general fund, and not a compensation for services rendered to Mrs. Freeman alone. He did not undertake to pass upon what was due from Mr. and Mrs. Freeman, as clients, to the plaintiff; that was a private matter, over which the chancellor of New Jersey neither had nor exercised any control, in the proceeding then pending before him.
    “ These allowances, which were made by the Court of Chancery, were not, by any means or in any sense, a compensation to the plaintiff as between him and his client for the particular service which he had rendered to that client.
    “ That was a matter between the client and counsel, with which the chancellor, who made the allowances for his services rendered to the general estate, was not then dealing.
    “It does not, therefore, seem to me, I must confess, that the defendants have been at all injured by the plaintiff’s having been awarded an allowance, by the Chancellor of New Jersey, for his general services to the estate of Mr. Parker, in common with the other counsel concerned in the settlement of the estate.”
    The verdict was for the plaintiff for the balance of the $5000, with interest, less the credit of one-seventh of the $2500, viz.: $357. The defendants then took this writ, assigning for error the portion of the charge noted.

      Benjamin Harris Brewster and George L. Grawford, for plaintiffs in error.
    — The charge of the court took from the jury the question of fact which Mr. Freeman testified that his bargain for $5000 was to include all the services of the plaintiff in the case, whether rendered to the general fund or his client in particular, and that the defendants were to have the benefit of any allowance that could be obtained from the chancellor in relief of it. It is obvious that any chancellor would, in making such allowances, if informed that one of the litigating parties had so provided for compensation of their active counsel in the case, have equitably adjusted the general burden, the remaining distributees having made no such provision for their counsel. And there was a want of that uberrimce fidce required of counsel in the plaintiff not disclosing this to the chancellor, to at least obtain the benefit of the point before him^ and in not disclosing to his clients the application of himself and^ the other counsel for the $12,500 fees allowed by their united action, without objection, that his clients might have their objections thereto presented and passed upon by the chancellor. '

      Henry G. Titus, for defendant in error.
    — The jury found that Mrs. Freeman was not entitled to this allowance by virtue of any contract between the parties ; and apart from such a contract she could not claim it by law, for the chancellor could not pay for private services out of the general estate.
    It is customary for the Court of Chancery to allow fees to the counsel of all parties out of the whole estate, to be taxed as part of the costs: Whitenack v. Stryker, 1 Green’s Ch. (N. J.) 29; Re Will of Henry Vanderveer, 5 C. E. Green 463; Harris v. Vanderveer, 6 Id. 568.
    ' An agreement made between an attorney and his client, the party to a suit, that the attorney shall prosecute or defend for a fixed sum, does not affect the right of the attorney to recover a larger amount as his taxable costs from the adverse party: Phœnix v. Romer, 1 Edwards’s Sel. Cas. 353.
    February 4th 1878.
   Mr. Justice Sharswood

delivered the opinion of the court,

It is undisputed and indisputable from the testimony of the plaintiff below himself that he was retained by Mr. Freeman, on behalf of his wife, “to secure the safe custody of the estate of Isaac Brown Parker and his wife’s interest, and take it out of the hands of John Brown Parker. He (Mr. Freeman) said, ‘ If you will do that we will give you $5000.’ ” This, then, was the contract on the plaintiff’s own showing. All the services which he could or did render to the estate were clearly within the scope of his duty under this undertaking. Had he failed in taking any steps which were necessary to secure the general fund, he would have been derelict in his duty, and responsible to Mrs. Freeman and nobody else for any loss which she might sustain t>y his neglect. He would not have been responsible to the other claimants upon the fund, for he owed them no duty. He could in no event have called upon them for compensation, though in attending to and protecting the interest of Mrs. Freeman he was at the same time attending to and protecting theirs. All that he did in the cause was under and by virtue of his retainer as solicitor of Mrs. Freeman. It does not appear that he was retained or acted as solicitor for any other party to the cause. His services then were rendered under his contract to secure the safe custody of the estate and Mrs. Freeman’s interest. No part of the $2500 which he received by the order of the chancellor, was for services rendered to anybody else but Mrs. Freeman. She was the owner of the seventh of the general fund, and to protect her seventh as long as it was undivided it was necessary to protect that general fund. To treat the services of the solicitor to the general fund as something distinct from arid independent of his services for his client, as one of the joint owners of that fund, as was done by the learned judge below, we think was an error calculated to mislead the jury from the true question— the contract that the plaintiff was to receive $5000 in full for all his services in the cause. It is true that a chancellor will, out of a fund for distribution, order compensation to the counsel engaged, in his sound discretion, according to his estimate, of what they reasonably deserve 'to have. He will often order such compensation to the counsel of a losing party who is decreed to have no interest, on the equitable ground that being a necessary party he was compelled to litigate, or had sufficient reason. It is a charge which the fund ought in equity and good conscience to bear. But whatever the counsel thus receives ought to be regarded as a credit in account between him and , his client. Let us take the case of a general retainer without any contract for a certain sum, and a suit is after-wards brought on a quantum meruit. Surely it will not be pretended that the amount received under such an order would not be admissible in evidence to reduce or satisfy the plaintiff’s claim. When, therefore, there is a special retainer, and the solicitor is to do all that is required for a sum certain, the client is entitled to a credit for whatever he may receive from any other source growing out of the same employment. The offer to credit Mrs. Freeman with one-seventh of the $2500 is no answer to all this. If the contention of the defendant in error is sound, she -has no right to this much even. Of the whole $12,500 paid out by the chancellor’s order one-seventh was from Mrs. Freeman’s share. Why Mr. Shreve was allowed a greater proportion than this we know not, nor is it material in this controversy. What is material and all that is material is that Mr. Shreve acted as solicitor for Mrs. Freeman and nobody else, and by special contract was to receive $5000 for all his services and no more. It is clear then that Mrs. Freeman was entitled to a credit for the whole sum of $2500 which he had received.

Judgment reversed and venire facias de novo awarded.

A motion for a re-argument was subsequently made by defendants in error, which the court refused.


author: Mr. Justice Gordon

text:
    Creed versus Pennsylvania Railroad Company.
    1. The conductor of a railroad train is charged with the administration of the rules of the company for the regulation of those who travel on its cars, and if he permits a passenger to ride in a caboose attached to the train, and an accident occurs through the negligence of the company, whereby the passenger is injured, he may recover damages.
    2. No legal presumption of negligence on'the part of a passenger arises from the fact of his being in a car, -not intended for the use of passengers, when an- accident happens.
    3. Where one is travelling by a passenger train and is not connected with the railroad company, the legal presumption is that he is a passenger, and travelling for a consideration.
    January 21st 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas No. 1, of Philadelphia county: Of January Term 1877, No. 21.
    This was an action on the case for damages, brought by Joanna Creed,'widow of Henry B. Creed, deceased, against the Pennsylvania Railroad Company, for the death of the said Henry B. Creed, caused by the alleged negligence of the said company. The accident, by which decedent met his death occurred on November 5th 1874, at Schenck’s Station] which is on the road of the said company, about nine miles from the city of Trenton, N. J.
    The declaration was in case for negligence, in not safely carrying deceased. Plea, “Not guilty.
    On the trial defendants filed additional pleas, as follows:—
    “That they did not contract or agree with H. B. Creed for a valuable consideration, or otherwise, that they would carry the said H. B. Creed from Jersey City, in the state of New Jersey, to the city of Philadelphia, in the state of Pennsylvania, as in the first count of the plaintiff’s declaration alleged, and of this the defendants put themselves upon the country, &c.
    “And for a further plea, the defendants say that the said H. B. Creed was wrongfully, and in violation of the rules of the company defendants, in a certain car, known as a caboose-car, not adapted to, or intended, or used for the transportation of passengers, but only used for the conveyance of the servants of the defendants, whilst employed in managing and conducting a certain train of their cars, exclusively used for the transportation of merchandise, which car, or caboose-car, was attached to 'a train of cars, exclusively used in the transportation of merchandise by them, the defendants, at the time of the alleged injury to the said H. B. Creed, upon the said railroad, &c.”
    At the ’trial it appeared that Creed was a passenger on a mixed freight and passenger train of the defendant, running from Jersey City to Philadelphia. At the time of the accident he was in the caboose, the hindmost car of the train, in front of which were the passenger-cars, into which there was ready and easy access. This caboose-car was one set apart and specially designed for the use and occupancy of the employees engaged in running the train, and by the rules of the company no other persons were permitted to enter it.
    The cause of the accident was the misplacing, by Brannig, the conductor, of the switch to back his train upon a side track, in order to let the express train pass. The switch had been changed from a ball, or “ Wharton” switch, which turns over from the ground, to a stand switch, worked by a lever. The conductor had no notice of the change of switches. After he had turned the new switch wrong, and had gone the length of a rail, he discovered his mistake, ran back to straighten it, struck his foot against a tie and stumbled, got the switch back about half way, when the rear car of the train, which was backing, and in which decedent was sifting, struck the open end of the rail, and, with the three passenger-cars next to it, ran off the track. The caboose-car upset and Creed was instantly killed.
    Brannig testified that he saw Creed on the afternoon of the 5th of November in Jersey City. He afterwards observed him at Newark on the train sitting in the lookout of the caboose, and subsequently saw him once or twice, the last time, he thought, at Trenton.
    Brannig was the freight conductor, and at the time of the accident had sole charge of the train, the passenger conductor having left the train at Newark. Brannig, however, it appeared, had no authority to take on passengers or to receive fares, and there was nothing to show that Creed had paid his fare to the passenger conductor. Creed himself had formerly been a freight conductor on the road. He was thirty-nine years of age when killed.
    The court, Peirce, J., in their general charge, submitted the question of negligence to the jury, but reserved the points whether the decedent was guilty of contributory negligence, and whether he was a passenger, as follows:—
    “ Secondly, is there any evidence in the case which leads you to believe that there was negligence on the part of the deceased ? You have heard the testimony ; there is no direct proof of negligence on his part, unless it may be considered in connection with the position which he occupied in the cars as riding in the caboose. Negligence is a mixed question of law and fact, it is said ; .and so far as the law of negligence connected with this case is concerned, as relates to his travelling in that caboose, I reserve that portion of the case for the consideration of the court in • banc, leaving the broad question, though, of negligence, both on the part of the company and on the part of the deceased, to your consideration.
    “ Then the further question has been' made, as to whether the decedent was travelling as a passenger on this occasion. We have no evidence of the payment of money by him ; but I think there is a reasonable and fair presumption that if a person not connected with the company travels by a passenger train, presumably he is travelling as a passenger, and for a consideration. I reserve, however, in the instruction which I give to you as to this presumption of law, the final determination of this question to the court in bane.”
    The verdict was for the plaintiff for $510,000.
    ' A rule for a new trial, granted at the instance of defendants, was subsequently discharged, and judgment having been moved for by the plaintiff, on the points reserved, the court, without delivering an opinion, entered it for defendants, non obstante veredicto.

    This entry of judgment was the error assigned by plaintiff, who took this writ.

      Pierce Archer, Jr., and Lewis C. Gassidy, for plaintiff in error.
    —Caboose-cars are constantly used by railroad companies, under their rules for the carriage of passengers for hire, and damages may be recovered for injuries sustained while riding therein : Lake Shore and Michigan Southern Railroad Co. v. Greenwood, 29 P. F. Smith 373; Indianapolis, B. and W. Railroad Co. v. Beaver, 41 Indiana 493; Chicago, Burlington and Quincy Railroad Co. v. Hazzard, 26 Ill. 373. If the conductor, in his discretion, permitted the decedent to ride in the caboose, he was rightfully there : O’Donnell v. Allegheny Valley Railroad Co., 9 P. F. Smith 249; Lackawanna and B. Railroad Co. v. Chenewith, 2 Id. 382; Carroll v. New York and New Haven Railroad Co., 1 Duer 571; Wharton’s Law of Negligence 354; Redfield on Railways 332; Washburn v. The Nashville and Chattanooga Railroad Co., 3 Head 638; Dunn v. Grand Trunk Railroad Co., 58 Maine 187. The carrier who, instead of expelling a trespasser, permits him to remain in the carriage, enters into a contract of common carriage with him, and he stands, so far as concerns protection from neglect, on the same footing as the ordinary passenger: Wharton’s Law of Negligence 354; Wilton v. Middlesex Railroad Co., 107 Mass. 108. Every one riding in a railroad ’car is presumed prima facie to be there lawfully, as a passenger having paid, or being liable when called on to pay his fare, and the onus is upon the carrier to prove affirmatively that he was a trespasser: Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 339; Canal Co. v. Graham, 13 Id. 299; Flower v. Pennsylvania Railroad Co., 19 Id. 215. There are a number of decisions fixing the liability of carriers to passengers, riding on free passes, for negligence: Pennsylvania Railroad Co. v. Butler, 7 P. F. Smith 335; Same v. Henderson, 1 Id. 315; P. and R. Railroad Co. v. Derby, 14 How. 468; Pitts. Railroad Co. v. Caldwell, 24 P. F. Smith 421; Wharton’s Law of Negligence 501, 641 and note. The case of The Union Railway Co. v. Nichols, 8 Kansas 505, relied upon by defendants, has no application to the case at bar, as there the plaintiff practised a deceit and falsely claimed to be an express agent to secure a free ride in the baggage-car, and the court properly held that the fraud barred a recovery. That case, too, has been criticised and condemned as unsound, in an elaborate review of all the cases, in Wharton’s Law of Negligence 356, note 3; Redfield,on Carriers 386.

      Chapman Biddle, for defendant in error.
    — The two issues raised by the pleadings are, whether Creed was a passenger by contract or by presumption of law, at the time the accident occurred. As there was no evidence as to the first issue, the case is narrowed to the legal relation which Creed bore to the defendant.
    A passenger by presumption of law may be defined to be one who takes his seat openly in a carriage, in the place assigned to passengers generally (Wharton on Negligence, § 354); is both ready and willing to pay his fare when called upon (Railroad Co. v. Books, 7 P. F. Smith 346), and consents to all the reasonable rules of the company for entering, occupying and leaving their cars: Sullivan v. The Reading Railroad Co., 6 Casey 238; Railroad Co. v. Zebe, 9 Id. 326.
    Railway companies are authorized to make all reasonable rules and regulations for the carriage of their passengers: Dietrich v. Railroad Co., 21 P. F. Smith 436; Long v. New York Central Railroad Co., 50 New York 76. In the present instance, by the written order or regulation of the defendants, conductors were prohibited from carrying passengers in a caboose-car, which regulation was, moreover, in contemplation of law, known to Creed.
    A person on a freight train is not a passenger, and no act of a conductor of a freight train will bind a company, unless it assents thereto: Eaton v. Delaware and Lackawanna Railroad Co., 57 N. Y. 382; Lygo v. Newbold, 9 Exch. 302. The case of the Lake Shore and Michigan Southern Railroad Co. is distinguishable from this case, as there the only coach provided on the way freight was the caboose; but here there were passenger-cars, and the use of the caboose by passengers was forbidden by the rules of the company. Creed, therefore, was clearly not a passenger by presumption of law; so that his status or relation to the company must have been either that of a trespasser or of an interloper. But in neither would hé have been entitled to recover from the company in case of injury: Robertson v. New York and Erie Railroad Co., 22 Barb. 91; Union Pacific Railroad Co. v. Nichols, 8 Kansas 505.
    February 11th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

From the evidence it appears that Henry Creed, the husband of the plaintiff, from the death of whom the present action has resulted, was a passenger upon a mixed freight and passenger train of the defendant, running from Jersey City to Philadelphia. At the time of the accident, which resulted in his death, Creed was in the caboose, the hindmost car of the train, immediately in front of which were the passenger-cars, so that there was ready and easy access from the latter to the former. This caboose-car was one set apart and especially designed for the use and occupancy of the employees engaged in -running the train, and by .the rules of the company no other persons were permitted to enter it. It is quite clear, from-the evidence, that Creed boarded this train at Jersey City, for Bran-Dig, the freight conductor, says he saw him first on the afternoon of November 5th, the day of the accident, in that city, and that he next noticed him at Newark in the lookout of the caboose, and as this train left Jersey City in the evening, there can be but little doubt that the deceased got upon it at that point. It is also in evidence, that though Brannig had the full and entire charge of the train from the time it left Newark, yet he had no authority to receive passengers or to examine or lift the -tiókets of such as remained on the train after passing that station, at which point the passenger conductor, who had charge of the cars from Jersey City, left the train. Whether Creed paid his fare or not is unknown. Brannig’s duties did not lead him to inquire, and the passenger conductor was not called. He may have had a ticket, or he may have been surreptitiously on the train through the connivance of the train hands, to whom he may have been known, as he formerly had a position on this road. Presumptively he was rightfully-there; certainly he was there with the knowledge and acquiescence of one of the conductors, if not of both. Under this condition of affairs the learned judge of the court below charged the jury as follows:

“ 1. There is no direct proof of negligence on his, Creed’s, part, unless it may be considered in connection with the position which he occupied in the cars as riding in the caboose.” This point was reserved.

“2. We have no evidence of payment of money by him ; but I think there is a reasonable and fair presumption, that if a person, not connected with the company, travels by a passenger train, presumably he is travelling as a passenger and for a consideration.” This point was also reserved. The verdict was for the plaintiff; but the court, without giving any opinion, entered judgment for the defendant non obstante veredicto. It follows, that the converse, of one or both of the above propositions, was finally held by the court. That is to say ; first, that there was a legal presumption of negligence, on the part of Creed, arising from the fact of his being in a car, when the accident happened, not intended for the use of passengers ; second, that, although travelling by a passenger train, and not connected with the company, the legal presumption is that he was not travelling as a passenger who had paid his fare, or intended, in good faith, so to do. As legal propositions these cannot be sustained.

No presumption of negligence can arise, either in fact or in law, from the fact of Creed’s occupancy of the caboose, for there is no evidence that it was in any degree more unsafe than any other car in the train. It was, indeed, under all ordinary circumstances, the one that was the most safe; from collisions in front of the train it was protected by the cars which preceded it, and from dangers behind, being itself a lookout, it was guarded by the constant vigilance of the employees. That it proved to be .the car first in danger, and the one most badly wrecked, argues nothing, since the carelessness of the company, in introducing new switches, having an action the reverse of the old ones, without notice to those in charge of its trains, could not be foreseen by any one, however prudent. Was Creed’s position, under all ordinary circumstances, which a man of ordinary prudence ought to foresee and guard against, as safe as a seat in a passenger car ? If it was, and, as we have said, there is no evidence to the contrary, then negligence cannot be predicated of the fact of-his being in the caboose. It is true, however, that Creed, as a passenger, ought not to have been in that car; not, indeed, because it was less safe than other parts of the train, but because forbidden by the rules of the company. It was a car provided for the use of the train hands, and not for passengers, and from its very shape and character that fact must have been obvious to any one of common understanding and observation; much more to the deceased, who had himself been a freight conductor upon this very road. Presuming, then, the knowledge of the design of this car by the deceased, which, however, is a presumption of fact, not of law, was the company thereby released as to Creed from its duty as a common carrier? This point was raised and determined in O’Donnell v. The Alleghany Valley Railroad Co., 9 P. F. Smith 239; in which case the court below held that the baggage-car was an. improper place for passengers, whether the rule of the company against such use was communicated to them or not, and that one leaving his seat in the passenger-coach and entering the baggage-car was guilty of negligence. But this ruling was reversed. Mr. Justice Agnew delivering the opinion of the court, observed: That whilst it is the undoubted right of a railroad company to prescribe reasonable rules for the regulation of those who travel on its cars, yet the conductor is the one who is charged with their administration, and his permission of, or acquiescence in, the use of the baggage-car by a passenger, exempts such passenger from all blame, and in case of accident to him, resulting from the negligence of the company, he may recover damages. In the case of the Lackawanna and Bloomsburg Railroad Co. v. Chenewith, 2 P. F. Smith 382, the plaintiff had obtained permission from the agents of the company to attach his freight-car to a passenger train, contrary to the rules of the company, which were communicated to him, he at the same time agreeing “to run all risks.” Notwithstanding this, it was. held that the company was liable for damages resulting to the plaintiff and his car from negligence in the running of the train. And this is reasonable; for, as was said in that case, the plaintiff’s car was not unlawfully upon the road, and his engagement to be responsible for all risks did not embrace such as arose from the neglect of the defendant’s employees.

The test for contributory negligence is found in the affirmative of the question, does that negligence contribute in any degree to the production of the injury complained of? If it does, there can be no recovery; if it does not, it is not to be considered. In this we are also supported by the case of Carroll v. The New York and New Haven Railroad Co., 1 Duer, opinion per Bosworth, J. At the time of the accident complained of, the plaintiff, a passenger, was in the post-office part of the baggage-car, and though it was. conceded that the position was more dangerous in case of collision than a seat in the passenger-car, yet, being injured' by a collision to which his position in no way contributed, it was held he was entitled to recover. So, it was pertinently asked by Mr. Justice Thompson, in the case of the Railroad Co. v. Chenewith, above cited, “ Why speculate about the supposed dangerous position assumed by the plaintiff if no damage resulted from it ? • Was he to become an outlaw for assuming what proved to be no risk, and so forfeit his right when he was blameless?”

This doctrine applies with much force to the case in hand. Creed was in the caboose with the knowledge and assent of the freight conductor, if we may believe the testimony of that officer; hence, he was not a trespasser; and suppose, knowing that this was not a proper place for passengers, he assumed all risks incident to that car by boarding it; what then ? Was a carelessly located or misplaced switch such an incident ? Or did his position in the remotest degree contribute to the accident ? If, however, it did not, why talk about the matter as though it were of importance ? This doc-, trine is further illustrated by the case of Washburn v. The Nashville and Chattanooga Railroad Co., 3 Head (Tenn.) 638, wherein it was held, that the fact that one is riding in the baggage-car;, with the knowledge of the conductor, or is riding free, will not preclude him from a recovery for an injury arising from a collision, even though he might, or would not, have been injured- had he remained in the passenger-car. A like decision was made by the Supreme Court of Minnesota, in, the case of Jacobus v. The St. Paul and Chicago Railroad Co., Leg. Intel. 1874, p. 277, holding that the fact that the passenger, at the time of the injury, was in the baggage-car, contrary to a rule of the company, was not such contributory negligence as would bar his suit, and this though he may have been informed of the rule and may have persisted in remaining there in violation of it, if his position did not contribute to the accident which caused the injury. It is manifest, therefore, from reason and authority, that there was nothing in the first point for the court to reserve, but, having instructed the jury that there was no evidence of contributory negligence on part of Creed, the matter should have been allowed so to stand.

As to the second point, it was certainly correct to say “ that if a person, not connected with the company, travels by a passenger train, presumably he is travelling as a passenger, and for a considation-;” in other words, he is presumed to have paid his fare or to be ready to pay it when called upon. To presume otherwise would be to presume that such an one was a trespasser; but this is an affirmative proposition, the proof of which rests upon the one alleging it. As the doctrine above stated is expressly ruled in the case of the Pennsylvania Railroad v. Books, 7 P. F. Smith 339, per Sharsavood, J., Ave need pursue this subject no further. The. position occupied by the-decedent, in the caboose-car, may raise a question for the jury. Creed was upon a passenger-train, and, as we have seen, might laAvfully occupy any part of that train, whether passenger-car or caboose, if the conductor, knoAving his position, did not object to it. It follows that all presumptions far vorable to the occupant of a passenger-car attach in like manner to him though occupying the caboose. It cannot be said that it was no part of the duty of the passenger conductor to visit this caboose, and that, hence, no presumption can arise that Creed paid fare to an officer whom he did not see and who did not see him, for as it is the conductor’s duty to visit every part of his train where passengers may lawfully be, we must presume he did his duty. Whilst this is so it does not folloAV, from the facts developed in this case, that a presumption de jure arises that Creed did. pay his fare, or that he may not have been a trespasser. That he did not pay his fare to Brannig, the freight conductor, counts for nothing, for he Avas not authorized to receive it. This fact, however, does prove that if he paid at all it must have been at Jersey City,,at Newark, or between those places whilst the train was in charge of the passenger conductor, and as he was first noticed by Brannig, at Newark, in the lookout part of the caboose, and as he may have occupied' that position from Jersey City, it is quite possible, or even probable, that he may not have been seen by the passenger conductor, or if seen by that officer, may have been mistaken for one of the train hands and so have avoided the payment of fare.

There being this in the case, which ought to be passed upon by a jury, we send it back for re-trial instead of entering judgment on the verdict.

Judgment reversed, and a venire faeias de novo awarded.

Sharswood and Mercur, JJ., dissented.


author: Per Curiam.

text:
    Justice versus Tallman.
    1. A parol promise to pay the debt of another, out of funds transferred to the promissor, is not within the Statute of Frauds.
    2. In such case the creditor, though not present, is the party to be benefited. and becomes the owner of the 'fund thus impressed with a trust for him and can sue for it.
    January 22d 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1877, No. 97.
    Assumpsit by Ei G. Stones and A. G. Tallman, trading as E. G. Stones & Co., against Philip S. Justice. Stones having died, the case proceeded in the name of Tallman alone. The action was to recover on an alleged promise of the defendant to pay the debt of Philip Wilson. It appeared that the latter, in 1867, owed Stones & Co. $1662.33, and was at the same time indebted to Justice in the sum of $23,000. Wilson testified that Stones & Co. pressed their claim for settlement, and he then made a transfer of his property to Justice, with the understanding that the latter would pay this claim. His testimony in regard to this alleged agreement was: “ My indebtedness being very large to Mr. Justice, he naturally wanted to get all he could of his claim. Before handing him certain notes which I had received from Mr. Westcott, I stated to him my indebtedness to Mr. Stones, and I understood him to say that he would see that matter settled.” And again; “ I placed ^he whole of the assets received from Gideon. G. Westcott, viz., house and lot in West Philadelphia, and notes above mentioned, in the hands of Mr. Philip S. Justice, the defendant, with the understanding, as I suppose, that this indebtedness would he paid.”
    Justice testified that Wilson having owed him the above-named sum for some time, he demanded payment, and Wilson made the transfer of the property mentioned. He denied positively that there was any agreement or understanding that he should pay the claim of Stones & Co.

      Stones & Co. were not present when the alleged promise was made, and subsequently demanded and received from Wilson promissory notes for the amount of his debt.
    Defendant submitted the following points, which the court refused:—
    2. The alleged promise, even if the jury believe such a promise to have been made, is a special promise by one man to answer for the debt of another, and unless the jury shall find from the evidence that the promise, or some memorandum of it in writing, signed by the defendant, or by some one authorized by him, their verdict must be for the defendant.
    3. The evidence in this case shows that neither the alleged promise nor any memorandum of it is in writing, signed by the defendant or by any person by him authorized, and therefore, even if the jury believe, from the testimony, that such a promise was made, it is within the provisions of the Act of Assembly of April 26th 1855, 1 Purd. Dig. 724, sect. 4, and the plaintiff cannot recover.
    4. The alleged contract between Wilson and defendant is void as to Wilson’s creditors, unjess said creditors, as [Dart of the arrangement; surrendered or gave up their original claims against Wilson and accepted the new contract with defendant in their stead, and as the evidence in this case is that plaintiffs not only did not surrender their claim against Wilson, but that nearly a month after the alleged promise of defendant accepted and received notes from Wilson for said claim, the said alleged promise is void as to them, and they cannot recover ^n this suit.
    The verdict was for the plaintiff, and defendant, after judgment thereon, took this writ, assigning for error the refusal of his points.

      R. P. White and A. S. Letclvworth, for plaintiff in error.
    — This case is in all essential particulars like that of Shoemaker v. King, 4 Wright.107, in which it was held that such a promise as is here alleged was within the prohibition of the Statute of Frauds. A parol promise to pay the debt of another is within the statute, where it is collateral to a continued liability of the original debtor: Maule v. Bucknell et al., 14 Wright 39; Townsend v. Long, 27 P. F. Smith 143.
    In this case, the old original debt of Wilson to Stones not only remained, but was expressly confirmed between those parties by Wilson giving to Stones his notes at one and two years for it, nearly a month after the making of the alleged promise by Justice.

      Thomas J. Diehl, for defendant in error.
    — The verdict of the jury establishes the fact that Justice promised Wilson, when he obtained the promissory notes and the house, that he would pay Stones & Co. the debt that Wilson owed them. This agreement gave Mm at once the absolute ownership and possession of all the assets of Wilson; and it brings his undertaking clearly within the excepted cases, in which it has been held that the statute, under the cover of which the defendant seeks to shelter himself, does not apply.
    Such an undertaking as was assumed by Justice in this case has been held to be not a contract of suretyship, so as to come within the Statute of Frauds, but a direct engagement as an agent or trustee to apply in a particular direction the funds wMch came into his hands ; in other words, it is the means adopted by a debtor to pay his own debts — an administration of his own estate by the hands of another. Therefore the case is excepted from the statute: Taylor v. Preston, 29 P. F. Smith 436; Clymer v. De Young, 4 Id. 118; Jack v. Morrison, 12 Wright 113; Maule v. Bucknell, 14 Id. 52; Jepherson v. Hunt, 2 Allen 423; Stout v. Hine, 9 Wright 30; Arnold v. Steadman, Id. 186; Malone v. Keener, 8 Id. 107; Browne on Statute of Frauds, 3d ed., sect. 187, p. 219, note; Birkmyer v. Darnell, 1 Smith L. C., 7th Amer. ed., p. 490, note.
    January 28th 1878,
   The judgment of the Supreme Court was entered,

Per Curiam.

— No question was raised in the court below upon the sufficiency of the evidence to establish the promise relied on to pay the plaintiff out of the funds lodged by his debtor in the hands of the defendant. The jury having found the promise or undertaking of Mr. Justice to Philip Wilson to pay E. Gr. Stones & Co. their debt out of the funds then placed by Wilson in the hands of Justice, the case falls within the class known as the exceptions to the Statute of Frauds, and the promise is not simply to pay the debt of another, hut to hand over funds appropriated by the debtor himself to the creditor for whose use he deposits them. In such case the creditor, though not present, is the party to be benefited, and becomes the owner of the fund thus impressed with a trust for him and can sue for it: Townsend v. Long, 27 P. F. Smith 143.

Judgment affirmed.


text:
    Stewart’s Appeal. Charlton’s Estate.
    1. Where an administrator, in pursuance of a decree of the Orphans’ Court, has paid over money to a distributee, without notice of a bill of review, he will be protected against loss should the court subsequently open and change the decree.
    2. Where the record of a case, brought up for review, is so irregular that it is impossible for the Supreme Court to decide according to the justice and equity thereof, the cqurt may either refer‘the case to an auditor, or the decree may be reversed and the record remitted to the court below for a further hearing, as may be deemed most expedient.

      January 22d 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from the Orphans’ Court of Philadelphia county: Of January Term 1877, No. 82.
    Appeal by Thomas Stewart, administrator of Mary Ann Charlton, deceased, from the adjudication of his account.
    Mary Ann Charlton died intestate in January 1875, leaving one child, Mary Ann Conrad, at whose instance letters of administration were granted to Stewart. On the 25th of February 1876, the administrator filed his account of the estate of said decedent, showing a balance, after payment of all claims, of $2351.66. On the 3d of April 1876, the account was audited by O’Brien, J., one of the judges of the Orphans’ Court, and on the same day confirmed nisi, and adjudication made, the amount in the hands of the accountant being, awarded to Mary Ann Conrad as sole distributee. 0.n the 10th of April 1876, an exception to the adjudication was filed by one Ann Dearing, but was withdrawn by a writing filed on the 24th of April 1876. On the 27th of April William M. Charlton filed exceptions to the adjudication, and afterwards filed a petition which set forth “ that he was married to the said decedent on October 31st 1850, and was her lawful husband at the time of her decease; that he had no notice of the filing of the account in the above matter or the auditing thereof, and that from information received he believes said account to be incorrect; that he desires to be heard on said audit and proceedings for distribution, and prays the court to order a recommittal of the same and a re-hearing-”.
    This petition was sworn to and subscribed on the 13th of May 1876. It was endorsed “April 27th 1876, audit and adjudication opened. D. W. O’Brien.” On the 6th of May Mary Ann Conrad filed a petition which set forth that the account of Stewart having been confirmed nisi, on the 3d of April 1876, she was advised that after the 24th of said month, by rule of court, the decree nisi became absolute; that of the original amount in the hands of the accountant she had received $1850, and prayed that the balance, deducting costs, might be paid to her. 'On the same day the court ordered the administrator to pay over said balance on or before the 13th of May. On the 25th of September Stewart filed an answer to the petition of Charlton, and on October 21st the court made a supplemental adjudication, disallowing the claim of the latter. Charlton filed exceptions, the first of which the court in banc sustained, and directed another adjudication, which allowed Charlton his share as husband under the intestate laws. Stewart then took this appeal, alleging, inter alia, that the court erred ; In opening the adjudication and audit, after the same had been confirmed absolutely by the rules of said court, ‘and the money in the hands of the administrator paid to the distributee, under the decree of said court without evidence that there was error of law in said adjudication or newly-discovered evidence, or evidence that the administrator had not paid over the balance found due by the decree sought to be reviewed.

      W. Horace Hepburn and H. F. Hepburn, for appellant.
    — After the account of an administrator has been filed, audited and adjudicated, and confirmed absolutely, there are but two methods of opening the adjudication and decree, viz. by petition in the nature of a bill of review, or by appeal to the Supreme Court: Act of March 29th 1832, Pm’d. Dig. 885; Act of October 13th 1840, Purd. Dig. 1109 ; Wei ting v. Nissley, 6 Barr 143.
    To justify a bill of review there must be error apparent on the face of the account, or new facts arising since the decree, or newly-discovered evidence: Hilldebrille’s Appeal, Sup. Ct., June 1853, MS.; Riddle’s Estate, 7 Harris 431; Hartman’s Appeal, 12 Casey 70; Green’s Appeal, 9 P. F. Smith 235.
    The defendant in error proceeded to open the audit and adjudication in this case by petition in the nature of a bill of review, after final decree. The petition presented to the court, and upon which the audit and adjudication was opened, is wholly defective. The defendant did not set forth therein any defect on the face of the account, or any new facts arising since the decree, or newly-discovered evidence, to justify the court in opening the decree and adjudication: Kaehlein’s Appeal, 5 Barr 95; Russell’s Appeal, 10 Casey 258. Nor does the petition allege that the balance found due by the decree had not been paid over by the accountant: Russell’s Appeal, supra; Craig’s. Appeal, 2 W. N. C. 391.

      Pierce Archer, Jr., for appellee.
    — There never was any final decree below, until that of December 8th 1876, in favor of the appellee. The matter was in fieri until that date. What necessity, then, for a bill of review ? The confirmation, April 3d 1876, nisi, was only preliminary, and the exceptions filed on April 10th and 27th 1876, kept it suspended, and on the latter date it was absolutely opened, not confirmed.
    The record shows no adjudication, no confirmation, no order to pay over up to this time. Where, then, was the need of a bill of review ? The record was still in the breast of the court; could they not still add, alter or amend ? It was like the report of an auditor under the old system, open until decree of absolute confirmation and dismissal of exceptions. Particularly is this view equitable where the preliminary audit was by default, in the absence of the husband, a non-resident. Where a report is referred back, the whole case is re-opened: Thoma’s Appeal, 26 P. F. Smith 30; Coates’s Estate, 2 Parsons 258; Metz’s Appeal, 11 S. & R. 206; Bishop’s Appeal, 2 Casey 470.

      February 4th 1878.
   Mr. Justice Sharswood

delivered the opinion of the court,

This record shows that there was an adjudication by the court April 3d 1876, on the final account of the appellant, when , it was confirmed nisi, on payment of clerk’s costs, and the costs were then paid. The third rule of the court prescribed that if exceptions are not filed on or before the third Saturday following, the adjudication shall then become absolute. The exception of Annie Dearing was filed on the 10th of April, but was withdrawn April 24th, which was the same as if none had been filed, and the adjudication then became absolute. In other words, it was a final decree. The Act of October 13th 1840, Pamph. L. 1841, p. 1, provides the mode in which such final decrees shall be reviewed upon a petition of review presented by any person interested, alleging errors in the account and setting forth such errors specifically, verified by oath or affirmation, with this important and necessary limitation : “ Provided, that this act shall not extend to any cause where the balance found due shall have been actually paid and discharged by any executor, administrator or guardian.” There was no formal petition of review filed in the court, but we are disposed to regard the exception of William M. Charlton, filed April 27th, though not verified by oath or affirmation, as sufficient, as it was not demurred to, and the court proceeded to review or rehear'the account. There is on the paper-book a petition by W. M. Charlton for a rehearing, sworn to May 13th, and endorsed by one of the judges, “ April 27th 1876, audit and adjudication opened.” December 2d 1876, the first exception of Charlton was sustained, and on the 8th of December a corrected adjudication was filed. In the meantime, however, and pending these exceptions, and after the adjudication of April 3d was opened, the record shows other proceedings. On the 6th May, Mary Ann Conrad, the distributee, to whom the balance in the hands of the appellant had been awarded, under the decree of April 24th, presented a petition, setting forth that of the award of $2351.56 she had received from the appellant $1850, and praying that the balance, after deducting court costs, should be paid to her. Whereupon, on the same day, an order was made directing the administrator, the appellant, to pay to the petitioner the balance of $488.16, on or before Saturday, May 13th. 1876.

A more irregular and inconsistent record has rarely been brought up to this court for review. By the Act of April 14th 1836, sect. 4, Pamph. L. 276, it is provided that in all cases of appeal from the Orphans’ Court, this court shall hear and determine the same as to right and justice may belong, and refer the same to auditors, when, in their discretion, they may think proper. And, again, by the Act of 16th June 1836, sect. 2, Pamph. L. 683 : “ It shall be the duty of the Supreme Court of this Commonwealth, in all cases of appeals now made or that may hereafter be taken from the decrees of the several Orphans’ Courts, to hear, try and determine the merits of such cases, and to decree according to the justice a,nd equity thereof.” Upon the record in this case it is impossible to decide according to the justice and equity of the cause. The most material fact, whether the appellant had actually paid the sum awarded, or any part thereof, to Mary Ann Conrad, before notice of the application for a review, does not appear, though there is a solemn admission by her on record that she had received a large part of it. We might refer the case to an auditor, but in the present state of our business we consider it most expedient to reverse the decree and remit the record to the court below for a further hearing. If the sum or any part of it was actually paid over according to the decree, before notice of the application for a review, both the express provision of the Act of 1840 and the plain dictates of justice and equity require that the appellant should be protected.

Decree reversed and record remitted to the court below for a further hearing.