author: Green, J.

text:
    WAYNE COUNTY.
    January Term, 1882,
    No. 322.
    February 21st, 1882.
    Edward Clarkson and Maggie C. Love, Administrators of James Clarkson, deceased, versus Samuel Thom.
    1. Whether a prior indebtedness from the defendant to the plaintiffs’ intestate formed a part of the consideration of the judgment-note in suit, was a question of fact necessarily left to the jury.
    2. A voluntary judgment-note cannot be enforced between the parties upon the ground that it was intended to defraud and hinder creditors, in the absence of evidence, that at the time of its execution the obligor was in debt, or contemplating indebtedness, or entering upon a hazardous undertaking that might involve him in debt.
    3. Assignments of error based upon the answers of the Court below, to points of law which had no evidence to support them, will not be considered.
    4. If the plaintiffs seek to recover the amount of the judgment-note in suit, upon the ground that it was given by defendant to their intestate in trust for the benefit of the wife of the defendant, they should raise the question by a distinct issue in the Court below, and in the absence of such issue it is not error for that Court to instruct the jury that, if they found that the judgment was given for the benefit of the wife, and the plaintiffs were seeking to divert it from that purpose and recover for the use of the estate, the verdict should be for the defendant.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Sterrett, and Green, JJ. Trunicey, J., absent.
    Error to the Court of Common Pleas of Wayne County.

      Scire facias to revive a judgment entered April 3d, 1872, by James Clarkson against Samuel Thom for $4154.29, upon a note with confession of judgment, dated March 14th, 1872, payable six months after date, with interest.
    April 2d, 1877, the death of the plaintiff was suggested, and his administrators were substituted of record.
    February 4th, 1878, a rule to open the judgment was made absolute.
    Upon the trial in the Court below, before "Waller, P. J., the plaintiffs offered in evidence the note, signed by Thom, and rested.
    The defendant produced Ann Sheppard, who testified that she was present when a note was given by Thom to Clark-son, and she continued, inter alia:

    Q,. State if you knew that Mr. Clarkson was there ?
    A. No, sir; I did not, but when I got in there, I found that Mr. Thom and him were having words, very rabid, both of them.
    Q. State as near as you can recollect what conversation took place between Mr. Clarkson and Mr. Thom ?

      A. Mr. Thom had been off on a drunk, and Mr. Clarkson had been informed that he had been signing notes to somebody in Carbondale — I think Morrison; I am not at all sure of that. Said he,“ Samuel, you won’t have a hole to put your head in.” Then he said again, “You won’t have a home to put your head in,” — he said, “Mrs. Thom won’t have a home.”
    Q. What else did he say ?
    A. ITe wanted to talk, and Mr. Thom couldn’t talk with him, he was so wrathy ; so he sent him down to Waymart to get a pint of whisky. Then when he was gone, Mr. Clarkson talked with Mrs. Thom, and she was crying. “ Well,” said he, “if Samuel has done this, you won’t have a home.” “Well,” she said, “there must be something done, and he must do just as he pleased, for she didn’t understand it.” And he asked her if she had any blanks, and she said she had some left from the vendue. She gave it to him and he sat down and wrote. Then when Mr. Thom came back again Mr. Clarkson read this note to Mr. Thom. Mr. Thom said, “ I don’t owe it and I won’t sign it.” He wanted him to sign it. Mrs. Thom said, “ Oh! do, Samuel, sign it,” and so he signed it.
    Q. What did Mr. Clarkson say ?
    A. Said he, “Samuel, I know that it is for no value received.” That is just what he said.
    Q. Why did he say he wanted him to sign it?
    A. Can’t tell you ; I know he asked him to sign it — why, to save him, supposing he had signed these notes; if he signed that note, that would keep anybody else off from it. It is so many' years ago that I can’t recollect particularly everything, and I should think you couldn’t expect me to.
    Q. Eor whose benefit did Mr. Clarkson say the note was to be given ?
    A. For Mrs. Thom, for a home for her; because he didn’t think much of Mr. Thom, because he was spending so much.
    Q. What, if anything, did Mr. Clarkson say as to the actual amount that Mr. Thom owed him ?
    A. Said he, “ Samuel, there is three hundred dollars.” “I know that,” said he, “but I haven’t it now to pay.” Said he, “ I didn’t ask you for it; I may never call on you for it,” said he, or something to that effect, “ for I have had a good deal of value off the place.” He didn’t say he wouldn’t — he said he might never.
    Q. Do you remember what was the amount of that note that he got Mr. Thom to sign ?
    A. It was four thousand and some odd — I can’t remember.

      Upon cross-examination she testified:
    Q. Was anything said after you took the sling?
    A. Mr. Clarkson said, “ Mrs. Sheppard, you remember this is for no value received.”
    Q. What was the note given for — what was the object of it?
    A. Because he said Mr. Thom had been signing notes to people, and they were afraid they would distress Mrs. Thom. He said Mrs. Thom wouldn’t have a home to her head, if he had done it. Said he, “ I haven’t done it, as I know of.” “No, Samuel,” said he, “1 know' that when you got in liquor you wouldn’t know what you did.”
    Q. How was that going to help her ?
    A. Because, I suppose, when they came on they couldn’t touch anything. They couldn’t take it from her because it wouldn’t be his.
    Q. Did Mr. Clarkson explain how that note was going to benefit her?
    A. I don’t know whether he did or not. I couldn’t tell you ; he said that he had done that and that would save her home; that they couldn’t touch the property.

      Samuel Melville, a witness for the defendant, testified, inter alia:

    Q. State if you were at Clarkson’s house a short time before his death, and if so what occurred there in Carbon-dale?
    A. I was at his house a short time before his death, and took him in a keg of cider, and he told me to tell her and Mr. Thom to come out and get a large note he held against them, and also their will. He repeated it over to me two or three different times, and when I came out of the hall he called me back again and told me to be sure and tell them to-come out and take up the, note and the will that he had in his possession.
    Q. Did he say anything about going to any place — what other message did he send ?
    A. About going to Benton — he told me to tell them he didn’t think he wmuld ever be able to go to Benton again.
    Q. What did he say about that note when he told you to tell them to come down, that he wanted to see them ?
    A. He wanted to give them a receipt for it and their will that he had in his possession.
    Q. What did he say the note was given for ?
    A. He said he held a large note against them for no value received.
    Q,. He wanted to give them a receipt for it and also the will?

      A. Yes, sir.

      Thomas McAndrew, for the defendant, testified in substauce, that he had a conversation with Thom in 1876, about buying the farm of the latter, and that he saw Clarkson, who said that whatever arrangement Thom made would be all right, and that he, Clarkson, would release his claim.
    The plaintiffs, in rebuttal, offered in evidence the records of judgments of Clarkson against Thom as follows :
    May 25th, 1861, $352.25, May 6th, 1862, $1029.50, and April 1st, 1863, $1252,31.

      JRobert Doak, for the plaintiffs, testified that in March, 1867, he heard a conversation between Clarkson and Thom, in which the latter said, “ I owe you, and I thought you would take the farm off my hands again,” and the former replied, “ You know, Samuel, there is five years’ interest on it, and that will eat up farm and stock altogether.” He further testified, that some years afterward Thom told him that he owed Clarkson $1000; that some months later he told him that he owed Clarkson $2000 ; and that in October or November, three years before the trial, he told him that if he had Clarkson paid, he -would fix up the old house at the corners, and rent his farm and move in there.

      James Gay, for the plaintiffs, testified that in 1869 he made an inventory of the notes, judgments, and mortgages in the possession of Mr. Clarkson, an¿l among them was a note signed by Thom for $3504; that in a conversation in the spring of 1870, Thom,said to him, “I wonder how much I will be owing Mr. Clarkson,” and immediately answered his own question, and said, “I suppose between two and three thousand dollars,” and that in another conversation, the same spring, Thom said, “If I could sell one half of the farm, I could nearly clear off Mr. Clarkson’s indebtedness, and have the other half for myself.”

      Edward Clarkson, one of the plaintiffs, testified:
    He (Thom) came to see me in reference to the matter. I sent word to him, and he told me that a lady in Honesdale, Miss Dimmick, was going to advance him the money to pay these judgments, but that she couldn’t get the money before the first of April......This was during the winter of 1876 and 1877, probably in the early part of 1877.
    Q. When that amount was read to him in that paper, did he make any objection to the amount ?
    A. Not at all.....I made an appointment to meet him on the first of April. I did meet him at Honesdale..... He told me that this lady had gone to New York and wouldn’t be back till Wednesday or Thursday.....
    Q. Did you find a note, made in 1869, for $3504?

      A. No, sir; nothing of the kind, among father’s papers.

      John Murrin, for the plaintiffs, testified that in 1877, Mr. Thom came there to the store, “ and I told them what Mr. Clarkson wanted them to do was to revive this judgment. He said Edward needn’t be alarmed; on the first day of April following he would get his money.”
    Counsel for plaintiffs offered in evidence books, consisting of inventories, etc., in the handwriting of Mr. Clarkson, to .show indebtedness on the part of Thom, with dates, amounts, and computations, covering the whole course of business between them down to the year of Mr. Clarkson’s death.
    The offer was objected to, and the objection was sustained.
    Thom testified, on surrebuttal, that what he said to Edward Clarkson Was, “ What I am owing you I will pay you •about the first of April,” and that no sum was mentioned at all.
    The above constitute the material portions of the testimony.
    Counsel for plaintiffs presented a number of points, which, with their answers, will be found in the charge.
    The Court charged the jury, inter alia:

    “You will then perceive that the result of this case depends largely upon the credibility which you may attach to the testimony of Ann Sheppard and Samuel Melville, together with the additional circumstances which have been detailed by other witnesses. The parties themselves could not be witnesses — neither Mr. Thom, the defendant, nor his wife —as to anything that transpired at the time the note was given ; neither could Mr. Edward Clarkson testify as to anything that transpired prior to the death of his father. The law which permits parties to a suit to become witnesses, excepts from its operation this class of witnesses, and therefore the mouths of both the plaintiff and the defendant are sealed as to any transactions which occurred affecting this judgment, excepting those which transpired after the death of James Clarkson.
    “ You have, then, to rely, as we have already said to you, upon the testimony of the defendant as offered. As to the consideration which moved to the giving of this note, it has been alleged by the defendant that this note was reluctantly and unwillingly given by him for the purpose of protecting his wife in the enjoyment of her home, and it has been suggested that, being so given, it would be valid as between the parties, as it was given to defraud creditors. There is nothing in this case, as we understand the evidence, that, at the time this note was given, Samuel Thom was indebted to anybody except James Clarkson, nor that he contemplated incurring any indebtedness or undertaking any hazardous business which would have been likely to render him liable to have judgments entered against him. If that was the fact, and Mr. Clarkson, who was his only creditor, consented, he would have a perfect right to make a settlement upon his wife to such an amount as they in their judgment deemed proper, for the benefit and protection of his wife, and it would have been perfectly legal and binding.

      " Evidence has also been adduced in i’egard to the transactions between these parties, and respecting the judgments obtained from the year 1863 down to the judgment, of $4154.29. Those judgments were offered in evidence, with the further offer on the part of the plaintiffs they would show that they had entered into and constituted a part of the judgment of $4154.29. The offer of the plaintiffs was to show that those judgments, which had been entered in 1863, some nine or ten years before the giving of this judgment, were constituted parts of this judgment given on the 14th of March, 1872. There is no evidence in the case of any settlement between James Clarkson and Samuel Thom at the time, of the giving of this note. Indeed, if you discard the evidence of Ann Sheppard, you have no evidence of what transpired between these parties: it does not appear whether any settlement was made at all or not; [but there is no positive or direct evidence that the judgments that had been entered years before, and which had lost their lien upon the property of Samuel Thom, were embraced in the judgment of $4154.29; consequently, we can relieve your minds of any difficulty in regard to those by saying that they need not enter into your consideration. It was perfectly competent to Mr. Clarkson, when he took this note, to have forgiven or discharged the obligations which he had against Mr. Thom up to that time, or to have done it,at any time between the giving of those notes, and the taking of the four thousand dollar note Whether he did so or not, there is no evidence before us, on the one side or the other; and, as there is no evidence that they constituted a part of or basis for this note, it seems to us that they cannot enter ipto the consideration of this case.]
    “ [It is further alleged, and the testimony of James Gay tends to prove the fact, that in 1870, or 1871, he saw in the possession of James Clarkson, the deceased, a note for $3500, made by the defendant, Samuel Thom. We make the same remarks in regard to that note that we have made in regard to the old judgments to which we have just referred.] There seems to be no evidence that the note of $3500 entered into the computation or consideration of the judgmentof $4154.29. Indeed, if yon take the note of $3500, the judgment of $1252, and the judgment of $1029, and the judgment of $352, you will have an amount largely in excess of $4154.29. Then, you have in evidence that subsequently to the entry of those judgments in 1863, and 1864, and 1867, and along there, a sale\vas made by Mr. Thom, the defendant, of his personal property, and that somewhere about $1000 was realized, which, it is alleged by him, went into the hands of Mr. Clark-son. And we may here remark, that the transactions between these parties are peculiar in their nature. They do not seem, either of them, to have kept any accounts. They do not seem, either of them, to have passed receipts, or to have transacted business-as ordinary people transact business. That may arise from the confidential relations that existed between them, or it may arise from some other cause which the jury may find from the evidence. But it is apparent that, while they had a very large amount of transactions, in one way and another, they have not at any time, so far as the evidence in this case goes to show, made any settlements or had any balancing of accounts or anything of the kind. If, as is alleged on the part of the defendant, and as appears slightly, perhaps, in the evidence of Ann Sheppard, the relations of Mr. Clarkson and Mr. Thom were such as are indicated, he may, as a protege of his, have provided for him from time to time, helped him to accumulate the property he had ; and, if so, he had an undoubted right to do it without let or hindrance from anybody, because a man may do what he pleases with his own property. It was perfectly proper and competent, as we have said, for James Clarkson to have remitted any or all indebtedness that may have existed between him and Samuel Thom — that is, from Samuel Thom to him — prior to 1872, and to have taken a judgment for the protection of Thom’s wife, under the circumstances which have been detailed before you, if he did so. That, however, is a question purely for you, gentlemen of the jury. It is a question of fact, and the turning-point in the case— whether this note was taken, at the time it was executed, for the benefit of Mrs. Thom, and to protect the property of Samuel Thom from being squandered by him in his occasional condition of inebriation.
    “ This case, like all others, is to be passed upon by you upon the evidence adduced. You are to separate the evidence in the case from the allegations of the one side and the other, or the insinuations of the one side or the other, and you are to approach the investigation of the ease with a sincere desire to do justice, and a determination to do justice between these parties. You are to take all the evidence in the order in which it has been detailed before you, and- examine it carefully and considerately and dispassionately, without fear, prejudice or favor. You are to judge of the credibility of the witnesses, and of their truthfulness, by their manner of testifying, their means of knowledge, and by their apparent candor and fairness in testifying, as well as from their general appearance upon the stand. You are to judge of all the evidence that has been offered, so far as it may bear upon the ease, and, taking all the evidence in the case, you will ascertain whether, at the time the note was given, it was given for the purpose which we have suggested or not.
    “ Certain legal points have been submitted to us by the plaintiffs, upon which we are requested to instruct you.
    ££ (1) The plaintiffs are not required to prove the consideration of the note, on which judgment was entered. The record sho wrs a prima fade indebtedness on the part of Thom to Clark-son, of the amount of the judgment, and the burden of proof is on the defendant to show there is in law no valid debt.
    ' “ This is a correct proposition of law, and we affirm it. We have already affirmed it in our general charge. In the opening of the charge, we said to you that, being a record of the court, it -was, prima fade, an indebtedness, and valid, and it devolved upon the defendant to show its invalidity.
    “(2) If Thom was indebted to Clarkson by note, judgment or otherwise, prior to the giving of the note in suit, such indebtedness is, in law, presumed to continue until it is proved to have been paid.
    “ This, as a naked proposition of law, we affirm. But we must qualify it in so far as that we refer the matter to the jury to ascertain, under the transactions between these parties, whether that indebtedness remains or not.
    “ (3) If Thom was indebted to Clarkson, when said note was given, the note was .a settlement of the amount due in the nature of an account stated, and is conclusive, unless a mistake in the settlement is proved.
    “ This proposition we affirm, with the qualification that, if the jury find from the evidence that such indebtedness was embraced in the $4000 note, then it is conclusive.
    “ (4) Though a note, given with intent to delay or hinder the collection of the maker’s debts, may be impeached by Ms creditors, it is good as between the parties. Hence, if the note in this ease was given for the purpose of creating a lien on Thom’s property, to the prejudice or in fraud of creditors, it is good between the parties, and the want of consideration is no defence.
    ££ This is a correct proposition of law, but we do not recall, in our recollection of the evidence, any testimony tending to show any intention on the part of James Clarkson and Samuel Thom to defraud creditors. "We refer it, however, to you, gentlemeu, to ascertain, under this- point, whether there is any evidence showing intent on the part of these men to defraud creditors.
    “ (5) A note, given with intent to delay or hinder the collec - tion of debts which the maker may thereafter contract, stands on the same footing in law as if given with intent to delay or hinder the collection of debts already existing. lienee, if the note, in this case, was given with intent to delay or hinder the collection of any indebtedness on the part of Thom, either existing at the time, or th$t might thereafter be contracted, it is good in law as between the parties, and the want of consideration is no defence.
    “ This point we negative, for the reasons that we have given you in our general charge, that, if Thom was not indebted at the time, and was not contemplating indebtedness, or entering upon a hazardous undertaking that might involve him in debt, he had a- right to settle upon his wife such amount as might be prudent and judicious.
    “ (6) The character of a note as to fraud is fixed by the intent with which it is given, and the purpose for which it is designed, and not by the actual existence or non-existence at the time of indebtedness on the part of the maker. Hence, if the note, in this case, was given with intent to delay or hinder creditors, it is good as between the parties, whether there was any existing indebtedness on the part of Thom or not.
    “ This is a correct proposition of law, and is affirmed.
    “ (7) If the character of the note as to fraud depends on the actual existence of indebtedness on the part of Thom when it was given, the giving of the note with intent to delay or hinder creditors, creates a presumption that such indebtedness existed. The plaintiffs are not bound to prove an indebtedness, but the burden of proof is on the defendant to show that there was none.
    “ This is also affirmed as a proposition of law.
    “ (8) The defendant having failed to establish a legal defence by the evidence offered in his behalf, the verdict must be for the plaintiffs for the amount of the judgment, with interest from the date of the note.
    “ This proposition we negative. We decline to so instruct you. We have already referred it to you as a question of fact to be ascertained, and do not propose to take away from the jury the right of passing upon the questions of fact which belong to them.

      “ (9.) In any view of this ease the plaintiffs are entitled to a verdict for the amount due by Thom to Clarkson when the note was given, with interest from that date.
    “ 1 his proposition is affirmed, if the jury find from the evidence that such indebtedness entered into and constituted part of the consideration of the $4000 note.
    “ (10.) The defendant having acknowledged in the affidavit made by him, on which the rule to open the judgment was granted, that when the note on which judgment was entered was given he owed Janies Clarkson $400, and that said note was for the benefit of and belonged to Mrs. Thom, excepting the $100 which defendant owed James Clarkson, and there being no evidence and no allegation that the same has since been paid, the plaintiffs are entitled at least to a verdict for the said indebtedness of $400, with interest from the time the note was given, 14th of March, 1872.
    “ This would seem to be a fair proposition, and should be affirmed, unless the jury find that such sum was not included and intended to be included in the note, or from the evidence of the witness Melville of the declaration of James Clarkson, just prior to his death, that this note of $4154.29 was given without consideration.
    “ We will say to you, in regard to the fifth proposition, that if there were any evidence in this case tending to show that there was any intent on the part of James Clarkson and Samuel Thom to defraud creditors, this would be a sound proposition of law; but, as there has been no evidence offered showing any such intent, we cannot see how that question can euter into your consideration of the case at all. It is not alleged on the part of the plaintiffs, or of the defendant either, that this judgment was given for the purpose of delaying, hindering, or defrauding creditors. It was either given for the benefit' of Mrs. Samuel Thom, or else it was given for a subsisting and bona fide debt. • [If you shall find that it was given for the benefit of Mrs. Samuel Thom, and the plaintiffs now seek to divert it from that purpose and recover for the use of the estate, your verdict will be for the defendant.] If, on the other hand, you find that it was honestly given for a fair, subsisting debt between the parties, you will find for the plaintiffs for the amount of the note, with interest from the time the judgment was entered.”
    Counsel for plaintiffs excepted to the charge.
    May 11th, 1881. Verdict for the defendant, upon which judgment was subsequently entered.
    Plaintiffs then took out a writ of error, assigning as errors the opening of the judgment; the refusal to direct a verdict for the plaintiffs ; the answers to the second, third, fourth, fifth, eighth, ninth, aud tenth points; the portions of the charge within brackets ; and that the charge, as a whole, was calculated to mislead the jury.

      H. Wilson, JE. O. Hamlin, and II. M. Seely, for plaintiffs in error.
    When the intent is to use a collusive judgment as a barrier against creditors, the judgment is good as against the defendant, notwithstanding the occasion for carrying the purpose into effect does not subsequently arise: íáerí'oss v. Fisher, 10 Barr, 184.
    The evidence of defendant presents his indebtedness, and the design to prevent its collection for the benefit of his wife, as the sole purpose of the judgment. A party is not allowed to avoid or revoke his own act by alleging its fraudulent purpose: Blystone v. Blystone, 1 P. F. Smith, 875.
    If the judgment was taken by plaintiffs’ intestate, to be held for the use aud protection of the defendant’s wife, he was simply clothed with a trust, which it was his right and duty to enforce. The plaintiffs have a right to hold and to revive the judgment. For whose use the plaintiffs sought to recover did not appear, and was not material to the issue: Sherk v. Endress, 3 VV. & S., 257.
    The defendant admitted of record that he owed $400 when the judgment was given.
    It was error to instruct the jury, in the absence of direct evidence, that the admitted preceding indebtedness entered into the judgment: this question could not enter into their consideration.

      Georye G. Waller, P. P. Smith, William H. Dimmick, and JD. H. Brown, for defendant in error.
    The theory, that the judgment was given for the purpose of hindering or defrauding creditors, is without a scintilla of evidence to support it, and is therefore beyond the pale of discussion.
    The claim, that the judgment should be revived for the benefit of Mrs. Thom, is inconsistent with their argument, purely technical, and seems to have been an afterthought, raised for the first time in this Court.
   The opinion of the Court was delivered by

Green, J.

Notwithstanding the numerous assignments of error on this record, it is apparent that the ease presents but a single practical question, to wit, what was the consideration for which the judgment-note in question was given? The points, with relation to the judgment having been given to hinder, delay and defraud creditors, are inapplicable, because there was no evidence to support them, and it is therefore unnecessary to consider them. The plaintiffs’ tenth point should have been affirmed if there had been any evidence to show that the indebtedness of $400, due by Samuel Thom to James Clarkson, was. included as part of the'consideration of the judgment. The Court below left it to the jury to determine-this question, affirming the point unless the jury found that this indebtedness was not included in the note. The jury have found by their verdict that it was not included, and for this finding there was sufficient testimony in the case. The points in relation to the old indebtedness of the defendant to the plaintiff in the judgment, and as to its constituting part of the consideration thereof, were properly answered by referring the whole subject to the jury. Of course, whether it had been previously paid or yet remained, and whether it constituted any part of the consideration of the note in controversy, could only be questions of fact, and, as such, they were necessarily left to the jury. The only remaining question was, whether there was any actual consideration for the note other than those above indicated? None was proved, and, against the inference arising from the mere fact of the execution and delivery of the note, testimony was given which, if believed by the jury, was quite sufficient to show there was none. The only witness who was present at the execution of the note testified directly and positively that it was given reluctantly by the defendant at the solicitation of Mr. Clarkson, the plaintiff, and of Mrs. Thom, the defendant’s wife, without any consideration whatever, and upon the express statement by the plaintiff that it was “for no value received.” The witness details the circumstances, from which it appears that the defendant had been on a spree, and there was apprehension that he had been indorsing notes for strangers, and, in order to preserve a home for the defendant’s wife, he was induced to sign the note without any consideration from Clarkson. Samuel Melville, another witness, testified that the plaintiff, Clark-son, asked him to tell Mr. and Mrs. Thom to come out and get a large note he held against him, and also their will, which was in his possession, that he repeated this request several times, and in the course of the conversation told the witness that he held a large note against them for no value received. This occurred shortly before Clarkson’s death. The credibility of both these witnesses was left to the jury with proper instructions, and the jury have found by their verdict that there was nothing due to Clarkson on this j udgment. As there was no evidence that Clarkson furnished any money to Thom when the judgment-note was signed, or conveyed to him any property, real or personal, or had any settlement faith him at that time, it is quite apparent that the jury had sufficient warrant for their finding in the testimony. With the credibility of the witnesses we have nothing to do. That was exclusively for the jury. It was suggested that if the judgment-note was given for the benefit of the wife, the plaintiffs, as administrators of James Clark-son, could enforce it in any event,and were therefore entitled to a verdict and judgment, and could then be called upon by Mrs. Thom to account to her for the proceeds. Had the plaintiff's admitted the trust, and proposed to have the judgment marked to her use, there would have been much force in this suggestion. But instead of any such concession, the plaintiffs were endeavoring to enforce the judgment as the property of James Clarkson and for the benefit of his estate. This claim was in direct antagonism with any such trust, and presented the plain issue whether there was anythiug due to James Clarkson in his own right. That issue it was the clear right of the defendant to contest, and he could not be disqualified from making such contest upon the theory that his wife was the equitable owner of the judgment, unless the ownership was either asserted or conceded as a reply to his defence. Moreover, if the plaintiffs were allowed to recover a general verdict and judgment in this proceeding, it would be impossible to know whether it was because he owed the money to James Clarkson in his own right or as trustee for the defendant’s wife. In order to raise that question, a distinct issue should have been presented in the Court below, by the plaintiffs, so that there should be no confusion or uncertainty in the event of a recovery as to the right in which it might be had. As the issue was made up, Mrs. Thom was asserting no right as equitable owner of the judgment, nor were the plaintiffs asserting any such title. It follows, therefore, that the Court below was not in error in directing the jury, that if they found that the judgment was given for the benefit of Mrs. Thom, and the plaintiffs were seeking to divert it from that purpose and recover for the use of the estate, the verdict should be for the defendant.

Judgment affirmed.

Sharswood, C. J., dissents.


source: Caselaw Access Project

author: — Per Curiam:

license: Public Domain

text:
    January Term, 1882,
    No. 162.
    February 22d, 1882.
    Dean et al. versus Hoban et al.

    Entering into a recognizance under the Act of June 8th, 1881, P. L., 80, where the recognizance is acknowledged before an alderman, is not a sufficient compliance with the act.
    Before Sharswood, C. J.; Gordon, Paxson, Sterrett, and Green, JJ. Mercur and Trunkey, JJ., absent.
    Error to the Court of Common Pleas of Wayne County.

      Scire facias sur judgment entered by Bridget A. Hoban against Peter Walsh, administrator of the estate of James Hoban, deceased, et al.

    Upon the trial in the Court below, numerous exceptions were taken to the rulings of the Court by the defendants.
    May 11th, 1881, verdict for the plaintiffs for $4027.50, upon which judgment was entered.
    The defendants then took out a writ of error.
    The recognizance entered into, under the provisions of the Act of June 8th, 1881, P. L., 80, was acknowledged before an alderman.

      C. Smith, for plaintiffs in error.

      G. G. Waller, for defendants in error.
    March 6th, 1882.
   — Per Curiam:

The Act of June 8th, 1881, Pamph. L., 80, expressly provides that no appeal or writ of error shall be issued unless the party shall have first entered into a recognizance, with sufficient sureties in double the amount of costs accrued, conditioned upon affirmance for the payment of all costs, and for the return to the Court below of the record with the remittitur. Such a recognizance was entered into in this case, but acknowledged before an alderman. We cannot recognize this as a sufficient compliance with the act, and must therefore quash the writ.

As, however, the case has been fully argued, we will say that, after full consideration, we find no error in the record of which the plaintiffs in error have any right to complain.

Writ of error quashed.


text:
    January Term, 1882,
    Nos. 1, 2, and 3.
    February 20th, 1882.
    Lehigh Valley Fire Insurance Company, to use, versus Tighe. Same versus Seidler. Same versus Barrett.
    In the absence of a hill of exceptions, the Court will not reverse a judgment for alleged error in the refusal to admit evidence, and in the charge of the Court, upon the mere agreement of counsel, as to what was excepted to.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Sterrett, and Green, JJ. Trunkey, J., absent.
    Error to tbe Court of Common Pleas of Wayne County.

    Ten assignments of error, which were filed in these cases, alleged error in the refusal of the Court below to admit certain evidence offered by the plaintiff, and in the charge of the Court.
    The records contained no bill of exceptions.

      Homer Greene, for plaintiff' in error.

      George 8. Purdy, for defendant in error.
    March 6th, 1882.
   — Per Curiam:

The records in these cases do not contain any bill of exceptions, or the charge of the Court. It would be unfair to the judge of the Court below to reverse upon the mere agreement of the counsel as to what was excepted to. We find, therefore, nothing to sustain the assignments.

Judgment affirmed in each case.


text:
    WYOMING COUNTY.
    January Term, 1882,
    Nos. 245 and 246.
    March 15th, 1882.
    Barnes’s Appeal. Barnes versus The Commonwealth.
    1. Proceedings for desertion, under the Act of April 13th, 1867, P. L., p. 78, are not in the course of the common law, and a writ of error is not therefore a proper remedy.
    2. Under this act the Court has jurisdiction whenever a husband shall neglect to maintain his wife and children, without reference to where the original desertion may have been.
    3. A demurrer to the evidence in a proceeding of this character does not make it a part of the record.
    4. The fact that one of the associate judges of the Court before which the case was tried was an uncle of the prosecutrix, was no ground for a change of venue.
    5. That the information made before the justice was not filed in court at the time of filing the transcript is immaterial.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.

      Certiorari sur appeal, and' error to the Court of Quarter Sessions of Wyoming County.

    Information, under the Act of April 13th, 1867, P. L., p. 78, by Sarah L. Barnes against Wesley I). Barnes, setting forth “ that Wesley D. Barnes, her husband and the father of her two children, Winnie D. Barnes and Wesley D. Barnes, Jr., being within the limits of this Commonwealth, has separated himself from his wife and children without reasonable cause, and has neglected and still does neglect to maintain his said wife and children.” A warrant was issued May 26th, 1881, and was returned served the following day, when bail was entered by defendant to appear at the next term of court. The warrant and transcript were filed in the Quarter Sessions June 4th, 1881. On the 6th of June following the defendant filed a petition for a change of venue, upon the ground “ that the said court is constituted and composed of Hon. T. J. Ingham, President Judge, Hon. James Phoenix and Hon. Paul Billings, Associate Judges, and your petitioner is advised that two, at least, of said judges are required to constitute and hold said Court; that Hon. James Phoenix is an uncle and near relative of the prosecutrix in this case; that Hon. Paul Billings has lived in the same town (Tunkhannock) with the said prosecutrix, for some time past, and has heard her allegations, and has recognized her as the wife of your petitioner, and formed an opinion on that question adverse to your petitioner, -who denies that he was ever married to the said prosecutrix.”
    The Court thereupon granted a rule to .show cause why the venue should not be changed, which rule was discharged August 18th, 1881. Specifications were filed by the prosecutrix June 16th, 1881, setting forth substantially that the prosecutrix and defendant were married at Washington, D. C., March 4th, 1874, at which date they were both residents of West Pittston, Luzerne County, Pa.; thatthe ceremony was performed by-Kelley, whom the defendant introduced as a minister of the Methodist Church, and that the certificate of marriage given at the time .had been destroyed by the defendant; that Winnie D. Barnes was born at San Francisco, California, December' 18th, 1874, and Wesley D. Barnes at the same place June 3d, 1878 ; that the desertion took place in Pennsylvania, in May, 1874, under the following circumstances:
    After the marriage, prosecutrix and defendant returned to West Pittston, and lived in prosecutrix’s house at that place, and cohabited as husband and wife until the 20th of May following, when defendant left and went to Mehoopany, Pa., whence he wrote to prosecutrix that if she wanted to live with him she must sell all she had and go West; -whereupon the pros - ecutrix sold all her personal property and a portion of her real estate in West Pittston, and joined defendant at Mehoopany, and wenttogether to San Francisco, Cal. Defendant tookposses-ion of the proceeds of the sale of said property and other funds of the prosecutrix, and after so obtaining possession of her property, consisting of cash to the amount of three thousand dollars, he denied that he was the husband of the prosecutrix, represented himself to be a single man, and in every way proved unfaithful to the marriage vows. And the prosecutrix alleges and will show to the satisfaction of the Court that the desertion took place at the place above stated on or about the 20th of May, 1874, and that the request of defendant for the prosecutrix to join him at Mehoopany and go West was a trick and fraud on the part of the defendant to induce the prosecutrix to convert her property into money and leave her home and friends that he might obtain possession of her property. Defendant did not provide her with any means of support or assistance after the above date, and has not provided her with any means of support or assistance since she left her home in Pittston, as above stated, neither has he returned to her her said property, or in any way accounted for the same.

      A large amount of testimony was taken before a commissioner in support of these specifications.
    On the 15th of November, 1881, the defendant filed a demurrer to the specifications, the sufficiency of the record, and the evidence, upon the ground that,
    1st. The original information, charging him with the crime of desertion, has not been duly filed in this Court, wherefore he alleges that this Court never obtained jurisdiction over this defendant.
    2d. That this Court has not jurisdiction to try or decide this case, in that the Hon. James Phoenix, one of the judges of this Court, is an uncle and near relative of the prosecutrix, and therefore disqualified from acting, and this defendant insists upon having his case heard and decided before and by a full Court, every member of which has power to act and decide therein.
    3d. The whole evidence on the part of the Commonwealth is insufficient in law to justify this Court in deciding this case against the defendant in that, First, the marriage having been alleged to have been performed and celebrated in the city of Washington, District of Columbia, tfie evidence thereof required by the act of Congress has not been furnished nor offered on the part of the Commonwealth. Second, There is no evidence whatever of a desertion having taken place in this Commonwealth, but on the contrary the desertion, if any took place, is shown thereby to have been in the State of California, and without the jurisdiction of this Court. Third, that the whole evidence on the part of the Commonwealth shows, or tends to show, that the parties, prosecutrix and defendant, are citizens of the said State of California, and were domiciled therein at the time of the commission of the alleged criminal acts, and that the same fails to show the commission of any criminal, or supposed criminal, act by the defendant within the jurisdiction of this Court. Fourth, That any and all offences charged in the record or evidence in this case have been bari’ed by limitation. Fifth, The evidence on the part, of the Commonwealth shows that the defendant was and is justified in separating himself from the prosecutrix.
    4th. That the specifications on file on the part of the Commonwealth do not set forth sufficient to give to this Court jurisdiction of this case.
    This demurrer the Court, January 17th, 1882, overruled.
    November 15th, 1881, leave was granted to the counsel for the complainant to file the information made before the justice, without prejudice to the defendant’s plea, that it was not filed at the proper time, and the information was then filed.

      There was much evidence on the part of the defendant. The Court, Inoham, P. J., found the facts to be, that the parties “ were actually married in the city of Washington that the domicil of the parties, at the time of the separation, was in the State of California; that the defendant, being within the limits of the Commonwealth, has neglected to maintain his children. It held that it had no jurisdiction to compel defendant to support the prosecutrix, and decreed that the defendant “ pay the sum of six dollars per month, payable at the end of each month, for the support of Winnifred D. Barnes, born 18th December, 1874, and six dollars per month for the support of Wesley D. Barnes, Jr., born-, 1878, to be paid monthly to Mrs. Sarah L. Barnes, for their maintenance until they are respectively twenty-one years of age, unless, upon application to this court by the father or guardian duly appointed, this order shall be so far modified as to change the per.son to whom the sum shall be paid. And the said Wesley D. Barnes is ordered to give security in the sum of fifteen hundred dollars to comply with this order, and shall pay the costs of this proceeding, and stand committed until the sentence is complied with.”
    The defendant filed exceptions to the decree, and made a motion in arrest of judgment, which was overruled by the Court.
    Counsel for defendant then took out a certiorari to January Term, 1882, No. 2-15, and a writ of error to the same Term, No. 246, assigning, as errors, that the Court erred in refusing to change the venue; in proceeding to try and decide the question without the intervention of a jury; in permitting the original information to be filed on the 15th of November, 1881; in overruling the first, second, third and fourth points of the demurrer; in the findings of fact; in overruling the motion in arrest of judgment; in various admissions of evidence; in determining the fact of marriage, and in entering the decree.

      E. Gr. Butler and W. E. G. A. Little, for appellant and plaintiff in error.
    The Act of March 18th, 1875, requires the Court to change the venue, when the judge, required to try the cause, is a near relative of the prosecutor. The defendant had the right to have an unprejudiced, unrelated and full Court.
    If the existence of the marital relation, when disputed, may be determined without a jury, under the Act of April 13th, 1867, it is unconstitutional, but it has no such purpose.
    The act requires that the information shall be returned to the next Court of Quarter Sessions. In this case, it was the third Court. In a criminal proceeding, there must be a strict compliance with the provisions: Commonwealth v. Keeper of the Jail, 4 S. & R., 506 ; Zack v. Penna. R. R. Company, 1 Casey, 394 ; O’Harra v. Penna. R. R. Company, 1 Casey, 445; Keller v. Commonwealth, 21 P. E. Smith, 413 ; Gallaghér v. Neal, 3 P. & W., 183 ; Cake v. Jacoby, 2 W. N. C., 391.
    California being the domicil, aud the desertion having taken place there, the Court had no right to try the case: Bailey’s Case, 27 Legal In., 399; Wilmarth’s Case, 7 Luz. Leg. Reg., 197.
    ihere is but one act complained of, and it affects the mother and children equally. This act is a separation within the limits of the Commonwealth, with a refusal to maintain. The two together constitute the crime. It is not a continuing offence : Gise«. Commonwealth, 31 P. E. Smith, 428.
    No distinction of the kind, made by the Court, has been made in any of the reported cases.

      C. H. Terry, district attorney, and Sittser Harding, for the appellee and defendant in error.
    It cannot be that the law in this State is such that a father may live next door to his minor children, refusing to support or maintain them, and when brought into a court of justice, trample upon their claims, and free himself from his obligation by asserting and proving that he abandoned his family in an adjoining State. Where a statute inflicts a penalty, as the pillory, or a fine, it is then taken strictly, but when it operates only to remedy an existing evil, or to prevent a continuance of an offence, it is to be construed liberally : Intro. Blackstone Com., 88. The Act of 13th April, 1867, provides the mode of proceeding, and makes the wife a competent witness. Sec. 3. The husband cannot, by denying the marriage, change the manner of proceeding, or oust the jurisdiction of the Court, or make the wife incompetent..
    The defendant, on the first day of the term, to which the warrant was returnable, filed his petition, setting forth fully the charge, on which he was arrested, denying all the allegations contained it, and praying for specifications and a change of venue. The warrant and transcript were filed, each containing a complete copy of the charges in the information, and defendant did not except to the jurisdiction of the Court, till he had come in, and renewed his.recognizance at the second term, and the Commonwealth had been to great expense taking the testimony. Defendant had notice of the charge against him, denied it, and made use of the means provided by the Court to conduct his defence.

      March 27th, 1882.
   — Per Curiam:

The proceedings below were not in the course of the common law, and a writ of error, therefore, is not a proper remedy.

No appeal is given to this Court. The certiorari, however, brings up the record, and we can review it so far as to ascertain that the Court had jurisdiction, and the proceedings were regular. We think it very clear that the Act of April 13th, 1867, P. L., 78, gives the Court jurisdiction, whenever a husband shall neglect to maintain his wife or children, without reference to where the original desertion may have been. We cannot inquire into the merits upon this writ. It is a mistake to suppose that a demurrer to the evidence, in a proceeding of this character, makes it a part of the record. We see nothing on the record which raises any other question but that of jurisdiction.

The challenge to one of the associate judges was no ground for a change of venue. He was not the judge by law required to decide the case. The other two judges were entirely competent. Nor was the fact that the information was not tiled with the transcript material.

Proceedings affirmed. Writ of error quashed in January, 1882, No. 246.


text:
    ALLEGHENY COUNTY.
    October and November Term, 1882,
    No. 101.
    October 18, 1882.
    Arnsthal versus Patterson.
    1. A lease provided that the lessee should have the right to continue it from year to year, at a rental to be fixed as follows: “ Lessee to appoint in writing to lessor on or before December 1, prior to end of such lease, a reputable freeholder as an appraiser, whereafter lessor, on the 3d of said December, shall appoint another, which two appraisers shall be sworn by the alderman of said ward, and shall fix the advance, if any, of the rent for the year from the 31st of March then next following,” &e. November 29 following, the lessee gave written notice to the lessor that he would continue use of the premises “ according to the terms of our lease.” Held that this notice was entirely insufficient to continue the lease.
    2. The Court has jurisdiction to issue a certiorari at the instance of the landlord to a justice upon proceedings to obtain possession under the act of December 14,1863, P. L., 1125.
    Before Sharswood, C. J.; Mercur,Gordon, Trunkey, Sterrett, and Green, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas No. 1 for Allegheny County.

      Certiorari issued by tbe Court below to an alderman of the city of Pittsburgh to remove the record of proceedings commenced under the act of December 14,1863, P. L., 1125, by T. H. Baird Patterson, trustee for the devisees of Joseph Patterson, deceased, against A. Arnsthal, to recover xjossession of demised premises.

      The lease, dated September 24, 1881, created a term for seven twelfths of a year, and provided, inter alia:

    “The lessee to have the right, within the period of five years from date, to continue existing lease from year to year, at rental to be fixed as follows : Lessee to appoint, in writing to lessor, on or before December 1, prior to end of such lease, a reputable freeholder as an appraiser, whereafter lessor, on the 3d of said December, shall appoint another, which two appraisers shall be sworn by the alderman of said ward, and shall fix the advance, if any, of the rent for the year, from the 31st of March then next following; and if unable to agree thereon, then said two appraisers to choose a third like appraiser, who shall be sworn in like manner, and join with them in fixing said advance in rent before the 15th day of said December, at which advance of rent lessee to have the right to elect, in writing, before the 25th day of said December, to refuse or continue existing lease for said next year, and so on from year to year, until the expiration of said period, same to bind lessor.”
    On November 29, 1881, the defendant served the following notice on the plaintiff:
    “Mr. T. EL Baird Patterson, Trustee:

    “Sir: I hereby notify you that E will continue use of rooms 45 and 47 Sixth street, now occupied by me as billiard rooms, according to the terms of our lease.
    “A. Arnsthal.
    “Pittsburgh, November 29, 188IT

    The lessor, on the 31st of December, 1881, gave the tenant notice that he would require possession on April 1, 1882. Possession not being given up on that day, he commenced these proceedings.
    The alderman’s transcript set forth inter alia as follows :
    “And now, April 17th, 3, p. M., after carefully considering the proofs and allegations, and finding the facts as set forth in the foregoing complaint, viz: ‘ That the term of said demise is fully ended and expired,’ are not proven, E find that said lease did not expire on March 31st, 1882, or thereabouts, because the defendant notified the plaintiff on November 29th, 1881, of his intention to continue the occupancy according to the provisions of the lease, and I find that under the terms of said lease, the defendant had a right to continue said lease from year to year for five successive years, at a rent to be fixed or mutually agreed upon by plaintiff and defendant through such appraiser as they might severally select. I further find, after hearing all witnesses on both sides on the question of forfeiture of lease for breach of covenants and conditions, that said lease has not been forfeited and such breaches have not been made or taken place. I hereby enter judgment publicly in favor of defendant and against plaintiff, and dismiss the complaint at the cost of plaintiff.” •
    On June 15, 1882, the Court reversed the judgment of the alderman, Stowe, J., delivering the following opinion:
    ‘ ‘ When no evidence is given, nor facts from which the conclusion of the Justice is drawn, we cannot review his finding of facts on certiorari, and therefore we must take it, that under the evidence there was no forfeiture of the lease. But how is it with reference to the renewal of the lease ? It may very possibly be that the conduct of plaintiff would estop him from relying upon the provisions in the lease that ‘lessee is to have the right, within five years, to continue from year to year at a rental to be fixed, viz : Lessee to appoint in writing to lessor, on or before December 1 prior to the end of such lease, a reputable freeholder as an appraiser, whereafter lessor, on the 3d of said December, shall appoint another, which two . . . shall fix the advance, if any, of the rent for the year from the 31 March following,’ &c.
    But if so, the Justice has not so found. He merely says he finds said lease did not expire on March 31, 1882, or thereabouts, because the defendant notified the plaintiff on the 29th of November, 1881, of his intention to continue the occupancy according to the provisions of the lease, ‘ and I find that under the terms of the lease the defendant had a right to continue said lease from year to year for five successive years, at a rental to be fixed or mutually agreed upon by plaintiff and defendant, through such appraisers as they might severally select.’ Now, the case shows its determination on 31st March, 1882, and without there was a renewal under the lease by a compliance with its provisions, that was the end of it, unless plaintiff, by his acts, had estopped himself from setting u p such a claim. Whether he did or not, does not appear. Certainly, the Justice does not so find in terms, nor does he find any fact which would have had that effect. What he does find is that ‘ defendant notified the plaintiff on 29th of November, 1881, of his intention to continue the occupancy of the premises according to the provisions of the lease.’ This is entirely insufficient. What he was to do was £ by writing to lessor, to appoint a reputable freeholder as an appraiser to fix the rent,’ &c. This he did not do, and, therefore, the finding of the fact stated by the Justice does not sustain his conclusion as worked out by his judgment. It is stated by counsel in argument that the plaintiff would not give defendant a copy of the agreement upon application, made for that purpose, so that he might comply with it, nor inform him what it was necessary to do to continue the lease, and defendant was ignorant of the terms, and so notified plaintiff It may estop the plaintiff, but the fact is not found upon the record, and we cannot assume it to be true.”
    The lessee then took out a writ of error, assigning as errors that the Court had no jurisdiction, under the act by virtue of which these proceedings are instituted, over a certiorari issued at the instance of the landlord, or to set aside the judgment of the Justice under such procedure; that the Court erred in reversing the judgment, in inferring facts not found by the alderman on his record, and that the reversal was based on a presumption of things not proven.

      JosiaTi CoTien, for plaintiff in error.
    By the terms of the act, a certiorari is only given to the tenant.
    Evidence was submitted and discussed outside of the record.
    Bedford v. Kelly, 61 Penna. St., 491.
    The finding of the alderman that the lease had not expired presupposes that the terms of the lease, in reference to its renewal, were fully complied with, or were proven to have been performed by the tenant, or, if not performed, that proper evidence” was abundantly submitted to the Justice, going to show that by the landlord’s own evasions the tenant was prevented from performing the covenants incident to a renewal.
    The court is not to look beyond the transcript: Commissioners v. Fickinger, 1 P. F. Smith, 48 ; Snyder v. Carfrey, 54 Penna. State, 93.

      Slagle & Wiley for defendant in error.
    At common law it has uniformly been held that the Supreme Court and Common Pleas Courts before the act of 1810, and since that act the Common Pleas Courts have power to review the proceedings of justices by certiorari : McClure v. White, Addison, 192; Wilt v. Philadelphia and Lancaster Turnpike Company, 1 Brewster, 411; Constitution of 1874, article V, § 10.
    The lower Court had the power on certiorari to rule upon the legality, sufficiency, and competency of the evidence on the record or returned therewith as part of the proceedings: 0. & P. R. R. v. Brittian, 3 Pitts. L. J., 301; Morton v. Kilgore, 1 Yates, 251; Bradley v. Flowers, 4 id. 436.
    It is clear that the notice of November 29, 1881, did not prevent the expiration of the lease, and therefore the reason for the finding of the magistrate failing, the finding itself must fall.
    October 25th, 1882.
   — Per Curiam:

We affirm this judgment upon the opinion of the learned court below.

Judgment affirmed.


author: Per Curiam:

text:
    October and November Term, 1882,
    No. 53.
    October 16, 1882.
    Arthurs et al. vs. Weisley.
    A clause in a will directing the executors to convey certain real estate in the name of the testator, the funds for the purchase of which had been given by another, to that person in fee simple “ as soon as she shall pay over to my said executors the balance due, as will appear in the accounts on my books,” is so clear a recognition of the trust that it must preclude all attempts to set up the statute of limitations to defeat it, even if the will were subsequently revoked by marriage and birth of issue.
    BeforeSharswood, C. J.; Mercur, Gordon, Trunkey, Sterrett, and Green, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas No. 2 of Allegheny County.

    Ejectment, commenced April 18,1881, by Eleanor Weisley against Willa Arthurs, widow of Addison Arthurs, and lV. A. Lewis, guardian of Addison E. Arthurs, minor child of Addison Arthurs, deceased, for the recovery of a three-story brick house, situated in the third ward of the city of Pittsburgh, Pa.
    On the trial before Kirkpatrick, J., the following facts appeared: In the year 1871, the plaintiff desired to purchase the property in dispute, then belonging to David Sands. Sands refused to make sale to her. She then called upon defendants’ testator, who agreed to negotiate the purchase for her, take the deed in his own name, and execute a bond and mortgage in his name to secure the unpaid portion of the consideration. The hand-money, amounting to $1,200, was given by the plaintiff to him, and he paid it to Sands. The price agreed upon for the house was $3,000.

      Robert Arthurs, a brother of the testator, testified:
    “About the time of this purchase, he (testator) came and told me what he proposed to do; that this lady wanted to buy this house, and wanted him to take it in his name. He gave me the reasons why she wanted it taken in his name. I rather objected to it, and told him I didn’t like him to be putting his money into a house of that kind, and he said he didn’t propose to put any of his money in it, that she would furnish all the money, and she wanted it for reasons of her own. She thought that it shouldn’t be in her name; that she couldn’t own it and have any degree of comfort at all, and he thought that there was no risk on his part, and he proposed to do it; he got me to draw the title papers, which I did.
    “ Q. You say that he gave the reasons why she couldn’t own it; what were those reasons ?
    “A. The reasons he stated were, that she belonged to an unfortunate class, and if she had property in her own name she would be eternally raided by the police and black-mailed, and couldn’t own it; they wouldn’t permit any woman of her standing to own property without taking all the money that she would have.”
    April 4, 1871, Arthurs executed a will in which he devised, inter alia, as follows:
    “In relation to a three-story brick house, situate in the third ward, Pittsburgh, Pa., fronting on an alley running at right angles with Cherry alley and immediately in the rear of the house occupied by Dr. Walters, I direct that my executors shall convey the same in fee simple to Eleanor Weisley as soon as she shall pay over to my said executors the balance due, as will appear in the accounts on my books.”
    After the date of the will, Arthurs married, and had issue born not provided for in it. He died September 29, 1880.
    January 24, 1882, the jury rendered a special verdict, as follows:
    “We find that the plaintiff furnished to Dr. Arthurs the money with which he paid for the property in dispute, to wit: $3,000, which was paid as follows: $1,200 in August, 1872, the date of the purchase; $S20 in January, 1873; $515, July 11, 1873; and $544, the balance in full, March 16, 1874, said payments having been paid over by the said Arthurs to Sands when received by him or within a few days thereafter.
    “We find further that at the time of the purchase, in August, 1872, said Arthurs took possession of said property and held the same until his death, and that since that date it has been in the possession of the defendants; but that said Arthurs, during his lifetime, never disclaimed the trust nor held adversely to plaintiff. Upon- these facts, we find under the instruction of the Court for the plaintiff for the property in dispute, with six cents damages and costs, subject, however, to the opinion of the Court on the question of law reserved, to wit: those (that) raised by defendants’ fifth point.
    ' “If the Court should be of opinion that the law is with the plaintiff, then judgment to be entered on the verdict; but if the Court should be of opinion that the la,w is with the defendants, then judgment to be entered for the defendants non obstante veredicto.”
    The fifth point of the defendant, referred to in the special verdict, was:
    “That even if plaintiff has shown a resulting trust in her as to the property in suit, such trust accrued more than five years before action brought to enforce it, and there can be no recovery here.” This was refused pro forma and reserved.
    February 18, 1882, the Court entered judgment on the verdict, and the point reserved in favor of plaintiff.
    ' The defendant then took this writ of error, assigning for error the entry of the judgment.

      C. O. Montooth and 8. A. McOlung for plaintiff in error.
    It cannot be disputed that there was a resulting trust, but under the act of April 22, 1856, no action could be maintained to enforce that trust.
    Plaintiff’s rights were complete in March, 1874, and she then had five years in which to bring suit: Clark a. Trindle, 52 Pa. St., 492; Best v. Campbell, 62 Pa. St., 476; Douglass v. Lucas, 63 Pa. St., 9.

      W. O. Moreland for defendant in error.
    The provision in the will is a declaration of trust under the statute.
    October 25th, 1882.
   Per Curiam:

We are of the opinion that the clause contained in the last will of Dr. Arthurs was so clear and unequivocal a recognition of the trust in favor of the plaintiff below that it must preclude all attempts to set up the statute of limitations to defeat it. Under the circumstances, even if the will were revoked, that clause, as the recognition of an existing equity, would still be effectual.

Judgment affirmed.


author: Pee Curiam :

text:
    October Term, 1882,
    No. 157.
    October 23, 1882.
    The Braddock Ferry Company’s Appeal.
    1. The right to keep and maintain a public ferry belongs to every riparian owner, so long as it does not conflict with any exclusive grant.
    2. The limitation of three thousand feet, provided by section 31 and section 32 of the act of April 29, 1874, P. L., p. 73, within which a ferry company has exclusive privileges, is annulled by the subsequent act of April 17, 1876, P. L., p. 30.
    Before Siiarswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Green, and Clark, JJ. Sterrett, J., absent.
    Appeal of the Braddoek Ferry Company from a decree of the Court of Common Pleas No. 1 of Allegheny County, dismissing a bill in equity.
    The bill filed by The Braddoek Ferry Company against Anna Sharp and John Sharp set forth that the Braddock Ferry Company, by its charter, approved April 29, 1874, was empowered to establish and maintain a skiff, flatboat, rope, chain, or steam ferry across the Monongahela river, between Braddoek’s, on the north side, and Kenny’s landing, on the south side of said river; that the said corporation established a ferry, and provided a safe and commodious steamboat for travel between the said points ; that it had also leased a landing belonging to Thomas Fawcett, immediately adjoining Kenny’s landing, for the convenience of the public ; that the defendants, since plaintiff’s incorporation, without any license or authority of law, had established a ferry from Braddock’s to Fawcett’s landing ; that the route of said ferry established by defendants is within three thousand feet of the route of plaintiff’s ferry at both termini; that defendant’s ferry is without authority of law, and is in violation of plaintiff’s rights, privileges, and franchises, as conferred by its charter and the laws of Pennsylvania.
    The bill prayed for an injunction.
    The defendants in their answer admitted that they maintained a skiff ferry from Braddoek’s to Fawcett’s landing, but denied that it had been established since the complainant’s incorporation, and denied that the landing at Fawcett’s is within three thousand feet of the landing at Kenny’s. They denied also that they were in any way violating the complainant’s rights and privileges.
    The Court appointed J. S. Cook as master, who filed a report^ finding as follows:
    “First. The Braddoek Ferry Company was incorporated in April, 1879, and its articles of association duly recorded in that month, with the purpose, as therein stated, of ‘establishing and maintaining a skiff, flatboat, rope, chain, or steam ferry across the Monongahela river, between the borough of Braddoek, on the north side, and Kenny’s landing, on the south side of said river.’
    “Second. John Sharp, deceased, the husband of Ann Sharp, one of the defendants, and father of John Sharp, the other defendant, in the fall of 1874 or spring of 1875, established for the use of the public a skiff ferry, extending from a point at the foot of Eighth street, in the borough of Braddoek, across the Monongahela river to a point on what is known as Fawcett’s landing, and operated it continuously, giving it all his time and attention until he died, in February, 1882. He procured the right to land, from the owner of Fawcett’s landing, and in operating the ferry used one skiff, and sometimes two when necessary. This ferry, so established and operated,, had no charter.
    “Third. After the death of John Sharp, in February of 1882, John Sharp, one of the defendants, began to operate the ferry of his father for the benefit of his mother, the other defendant, and has continued to do so to the present time. He has carried it on between the same points, using one skiff continuously, and two when necessary.
    ‘ ‘ Fourth. The Braddoek Ferry Company, when incorporated, established a skiff ferry for passengers and a flatboat for teams from a point at the foot of Eleventh street, in said borough, to what is known as Kenny’s landing, on the south side of the river, and procured a lease from the owner of the landing of a part thereof, which included one hundred feet of the river front. . . . Said ferry company also established a steam ferry, the boat running from Braddock, at the foot of Eleventh street, down the river to Homestead, on the south side of the river, touching at Kenny’s, Fawcett’s, and other landings when business required.

      % x x x x x x

    “The distance between the points at which the respective ferries actually land on the south side of the river is less than three thousand feet, but plaintiff has not affirmatively shown that the distance between Sharp’s ferry and the portion it leased from Kenny for a landing is less than three thousand feet; and while the testimony as to where the one hundred feet of river front is located is very conflicting, yet it is clear that the ferry company do*es not land on that portion described in the lease from Kenny, but some distance below and toward Sharp’s landing.
    “The plaintiff seeks to enjoin defendants from operating their ferry, and alleges that it is maintained and operated without authority of law and in violation of plaintiff’s rights as conferred by charter. Defendants allege their right to operate and continue their ferry, and deny that they interfere with the rights of plaintiff acquired by its charter.
    “It may be conceded that plaintiff has no rights superior to defendants, unless its charter from the State gave it such. The defendants are not operating their ferry in a different manner from that done since it was first established, and not operating it between different points.
    “ It may also be conceded that defendants have the right to land their skiffs at the points they do land them, and to cross and recross said river to these points, unless the plaintiff, by procuring its charter and establishing its ferry, acquired rights which rendered the rights of defendants to operate their ferry unlawful.
    ‘ ‘ The master is of opinion that the distance of three thousand feet which plaintiff claims is not the measure of its right, and that it could not deprive defendants of, or enjoin them from operating, their ferry, on the naked allegation and proof that it was being operated within three thousand feet.
    ‘ ‘ The Legislature, in providing for the incorporation and ' - regulation of certain corporations, P. L., 1874, page 73, enacted, inter alia, in section 31, as follows : ‘No bridge or ferry company shall have the right to exercise its corporate franchises within three thousand feet of any other bridge or ferry in actual use at the date of issuing letters-patent to the new corporation.’
    “And section 32 of same apt: ‘Any ferry company incorporated as aforesaid shall have the right and power to erect and maintain a ferry, whether of steam-power or otherwise, across any of the streams or waters of this Commonwealth, subject to the rights of prior occupants, within three thousand feet of the point at which the proposed ferry is to be located.’
    “An act supplementary to the above, approved 14th of March, 1876, P. L., 1876,” page 6, amended that part of section 31 relating to bridges, but did not alter it as to ferries.
    “Another supplement to said act, approved the 17th of April, 1876, P. L., 1876, pages 34 and 36, amended section 31, and omitted that part thereof hereinbefore quoted, and amended section 32 to read as follows: ‘Any ferry company incorporated as aforesaid shall have the right and power to erect and maintain a ferry, either of steam-power or otherwise, across any of the streams or waters of this Commonwealth, subject to the right of prior occupants.’
    “It was evidently the legislative intent to get rid of the limit of three thousand feet. The omission of that part of section 31 relating thereto in the amendment of 17th of April, 1876, indicates this, and when in section 32, as amended, it is again omitted, it becomes apparent that hereafter that limit was not to be the measure of one’s right.
    “ Aside from the distance between the points at which the ferries land, let us inquire what are the rights of plaintiff. It has a right to land at Kenny’s landing; its charter confers that right. It has the right to the occupancy of the river bank to low water line for the distance of one hundred feet, at or near a private road, which is a part and parcel of Kenny’s landing; this it acquired from the owner of the river front for the purpose of a landing. Its duties are commensurate with this right. The right to maintain a ferry with a terminus at Kenny’s involves the duty to carry to that point, but it does not involve any duty to carry elsewhere. When it undertakes to carry to Fawcett’s, Homestead, or any other landing, it loses the protection afforded by its charter.
    “Tripp v. Frank, Fourth Term, Rep. 666 ; Taylor v. Wilmington and Manchester R. R. Co., 4th Jones, 277.
    “In Houck on Rivers, section 312, it is confidently asserted that no one can set up a ferry without a charter ; and again, that a riparian proprietor, though he own the lands on both .sides of a river, cannot, without consent of the State, set up and operate a ferry for the public use.

      “In many of the States, from a very early period, ferries have been regulated by statute, the mode of licensing thereof differing in the different States; but we look in vain through the legislation of this State for the doctrine asserted by Houck, or for any judicial recognition thereof. Indeed, the policy of the State seems to have been quite the contrary. While the bed of navigable rivers is presumed to belong to the Commonwealth, the adjoining lands have belonged to the owners of the soil, to appropriate and use as they saw proper, which has been effective to control the rights of embarkation and landing.
    “Bird ®. Smith, 8 W., 434; Cooper v. Smith, 9 S. & R., 32.
    ‘ ‘ Prior to the act of 1874, there was no legislative provision for the chartering of ferries, and charters, when procured, were applied for in many cases after the ferry had been established. The act itself contained the privileges sought for in expressed terms.
    “The act of 16th of April, 1863, P. L., 507, expressly refers to the landing of. William McKee, and gives him exclusive rights in the conduct of his ferry, and provides that nothing in the act of incorporation shall interfere with the landing known as Short’s ferry landing — a ferry that never had a charter.
    “In 1863, P. L., 11, the Legislature granted a charter for a ferry over the Allegheny river at Kittanning, and provided therein that it should not be lawful for any other person to establish a ferry for passengers, &c., between certain points.
    “In 1865, P. L. 328, the Jones Perry Company was granted certain exclusive privileges between the Point and West Pittsburgh. It was operated many years prior thereto by Thomas Jones and his devisees without any charter, and is referred to in the act of Assembly mentioned as the Jones Perry.
    “Special enactments, such as these, comprised all the legislation on the subject of ferries prior to 1874. There was no general legislation on the subject, and the conclusion to be drawn is, that the right to keep and maintain a public ferry belonged to every riparian owner, so long as it did not conflict with any exclusive grant. The paucity of exclusive grants over the Monongahela, Allegheny, and Ohio rivers, compared with the number of ferries we know to be maintained over these streams, leads to the irresistible conclusion that the right to maintain a public ferry was and is common to all, and restricted only when interfering with special grants ; otherwise, the river was and is a highway of wrong-doers.
    “The Legislature, by its act of 1874, in providing for the chartering of ferries, requires the association of five (5) or more persons. It certainly did not intend that all these ferries now maintained at every bend in our rivers, without charters, were bound to comply with this enactment ; otherwise, to be without the protection of the law. Such has not been the policy of the State. She has recognized these unlicensed ferries. She has done so expressly in her numerous special enactments on that subject, and her policy in relation thereto has been such that we must conclude that the language of the act of 1874, ‘subject to the rights of prior occupants,’ was meant to protect the unlicensed as well as the licensed ferry.
    “It was contended that even if Thomas Sharp had rights in his lifetime which the law would protect, they ended with his life. It is not such rights that die with the person. The right of Thomas Sharp to carry passengers between Eighth street and Fawcett’s landing, across the Monongahela river, is co-extensive with his rights in these landings, and would descend to his heirs and next of kin at his death.
    “The master, therefore, in view of the findings and conclusions herein set forth, recommends that plaintiff’s bill filed in this case be dismissed, and that the plaintiff pay the costs.”
    The complainant filed exceptions, which the Court below, September 30, 1882, overruled, and it made a decree dismissing the bill.
    The coüiplainant thereupon took this appeal, assigning for error the decree of the Court.

      Knox <& Heed and J. S. Ferguson, for appellant.
    We think the limitation of three thousand feet still exists in the statutes. The act of April 17, 1876, in terms only amended the act of April 29, 1874. It did not strike down or destroy the act of March 14, 1876. Shinn v. Com.. 3 Grant, 205.
    We further contend, that it was clearly established that the distance between the ferries on the south side of the liver was less than three thousand feet.
    In this ‘country, ferries are controlled by the State. A riparian proprietor, though he own the land on both sides of a river, without the consent of the State, cannot set up and operate a public ferry, and levy ferriage or tolls.
    Bell«. Clegg, 25 Ark., 26; Blissett «.'Hart, Willes’ Rep., 512; Young n. Harrison, 6; Georgia, 131; Nashville v. Shelby, 10 Yerger, 280 ; Bird r>. Smith, 8 Watts, 434: Lansing a Smith, 4 Wend., 21; Coopers. Smith, 9 S. &R., 26 ; Trustees v. Tatman, 13 Ills., 27; Charles River Bridge Case, 11 Peters, 620; Murray v. Menefee, 20 Ark, 561; Midland Ferry Company v. Wilson, 28 N. J., Eq., 537.

      W. B. Rodgers for appellee.
    Our rights and the rights of the ferry corporation do not conflict. It was incorporated to carry travelers up the river to Kenny’s; it found us engaged in carrying them down the river to Fawcett’s, and it only came into competition with us by an abuse of its franchises.
    By the policy of this State, evidenced by its statutes and "its judicial decisions, the establishing and maintaining of a public ferry is of common right, being appurtenant or incidental to the ownership or control of the necessary landings, and even the original act of 1874, whilst it protected corporations formed under it from the competition of subsequently-established enterprises, recognized and expressly saved “the rights of prior occupants.”
    But appellant was incorporated after the amendment of April 17, 1876, (P. L. 30,) had abolished the exclusive privilege which it claims; and it has utterly failed to give any evidence that would sustain a verdict in an action on the case under the old common law rule, and has therefore, a fortiori, no right to an injunction.
    Tripp r>. Frank, 4 T. R., 666; Taylor r>. Wilmington and Manchester R. R. Co., 4 Jones, 277; Cooper v. Smith, 9 S. & R., 32 ; Bird v. Smith, 8 Watts, 434; Charles River Bridge, v. Warren Bridge, 11 Peters, 620.
    Novembek 20th, 1882.
   Pee Curiam :

We agree entirely in the report and opinion of the learned master in the Court below, and that the decree, therefore, dismissing the bill with costs was right.

Decree affirmed and appeal dismissed at the costs of the appellant.


text:
    October and November Term, 1882,
    No. 153.
    October 23, 1882.
    The Commonwealth of Pennsylvania ex-relatione Henry W. Palmer, Attorney General, vs. David R. Callen.
    1. Article IV, section 8, of the Constitution of 1874, does not apply to any offices of an elective character, except those which are to be filled at the general election.
    2. When, therefore, an alderman of the city of Allegheny was elected at the annual spring election, February 21, 1882, to fill a vacancy caused by the death of the previous incumbent on December 10,1881; field on demurrer to quo warranto that he was entitled to the office.
    Before Shabswood, C. J., Merctjr, Gobdon, Paxson, Texjnkey, and Green, JJ., Stebbett, J., absent.
    Error to the Court of Common Pleas No. 2, Allegheny county.

      Quo warranto by the Commonwealth ex relatione, Henry W. Palmer, Attorney General, directed to David R. Callen to determine his right to hold and exercise the office of alderman in the Sixth ward of the city of Allegheny.
    The suggestion of the Attorney General set forth that by reason of the death of Charles W. Rado, on December 10, 1881, who was an alderman of the Sixth ward of the city of Allegheny, elected for the term of five years from the first Monday of May, 1880, “a vacancy happened in the said office within three calendar months immediately preceding the next general election,” “that the said David R. Callen pretends to be entitled to hold and exercise the said office under a commission under the hand of the Governor and the Great Seal of the Commonwealth, bearing date the 22d day of' March, 1882, and purporting to be issued in pursuance of an election for said office of Alderman of the Sixth ward of the said city, on the 21st day of February last past, being the general election day next succeeding the happening of the aforesaid vacancy ; and that without any lawful warrant, but under color of the commission last above mentioned, he, the said David R. Callen, has from the time aforesaid used, and does still use and exercise the powers, jurisdictions, rights, emoluments and privileges appertaining to said office.”
    David R. Callen demurred to-the writ because it did not appear by the suggestion of the Attorney General that his election to the office of Alderman of" the said ward was unlawful; and he averred that by the provisions of the act of June 21, 1839, (Purd. Dig., 843,) and the supplement thereto of March 22, 1877, (Purd. Dig., 2135,) his election on that date was lawful.
    The Court, after argument, entered judgment for the defendant on the demurrer, White, J., filing the following opinion:
    “Undertheactof Assembly of 21st June, 1839, Purdon’s Digest, p. 843, aldermen and justices of the peace^ were to be elected at the time fixed for the election of constables. By section seven, if any vacancy occurred by a refusal to accept, or by death, resignation, or otherwise, the vacancy was to be filled ‘ at the next election, and such election shall be held and conducted in the same manner as the other elections for justices under this act.’
    By section one, of the act of 6th May, 1874, Purdon’s Digest, p. 1889, in the case of vacancy from whatever cause,' the Grovernor was authorized to appoint some suitable person to fill the vacancy, and commission him to hold the office until thirty days after the next annual municipal or township election, ‘at which election his successor shall be elected.’
    By the act of 22d March, 1877, Purdon’s Digest, p. 2135, section one, aldermen and justices of the peace are to be elected on the third Tuesday of February, and their term of office shall begin on the first Monday of May following. Section two provides that, in case of a term about expiring, or of any vacancy that may happen by death, resignation, or otherwise, the constable of the ward, borough, or township shall give at least twenty days’ notice of an election to fill the office. And section three provides that if any vacancy shall occur after the time of the annual election, the Grovernor shall appoint one to fill the office until the first Monday of May succeeding the next ward or township election.
    In conformity to these acts of Assembly, the defendant was elected alderman of the Sixth ward, Allegheny City, at the annual spring election, on the third Tuesday of February, 1882, which was the 21st day of the month, and was duly commissioned by the Grovernor. He was elected to fill the vacancy occasioned by the death of Charles W. Rado, an alderman of that ward, whose term did not expire till 1885, but who died on the 10th day of December, 1881. There was an interval of seventy-three days between the death of Rado and the time of the annual election on the third Tuesday of February.
    It is suggested that the election of the defendant was illegal, under section eight, article four, of the Constitution of 1874, because the vacancy occurred within three calendar months immediately preceding the election. And that is the question raised by the suggestion and demurrer in this case.
    The section of the Constitution referred to is in these words : ‘ The Governor shall nominate, and, by and with the advice and consent of two thirds of all the members of the Senate, appoint a Secretary of the Commonwealth and an Attorney General during pleasure, a Superintendent of Public instruction for four years, and such other officers of the Commonwealth as he is or may be authorized by the Constitution or law to appoint. He shall have power to fill all vacancies that may happen in offices to which he may appoint, during the recess of the Senate, by granting commissions which shall expire at the end of their next session. He shall have power to fill any vacancy that may happen during the recess of the Senate in the office of Auditor General, State Treasurer, Secretary of Internal Affairs, or Superintendent of Public Instruction, in a judicial office, or in any other elective office which he is or may be authorized to fill. If the vacancy shall happen during the session of the Senate, the Governor shall nominate to the Senate, before their final adjournment, a proper - person to fill said vacancy; but in any such case of vacancy in an elective office, a person shall be chosen to said office at the next general election, unless the vacancy shall happen within three calendar months immediately preceding such election, in which case the election for said office shall be held at the second succeeding general election. In acting on executive nominations, the Senate shall sit with open doors, and in confirming or rejecting the nominations of the Governor, the vote shall be taken by yeas and nays, and shall be entered on the Journal.’
    A casual reading of the section would seem to limit its application to such offices where, by. the Constitution or law, the Senate had to be consulted, and had the power of confirmation or rejection. The particular offices named are all of that character. First. All offices to which the Governor has the original power of appointment. Second. Such elective offices as are specially named, viz-: Auditor General, State Treasurer, Secretary of Internal Affairs, Superintendent of Public Instruction, and a judicial office.
    And on a close analysis of the section, this view is rather confirmed. Yet it may possibly bear a wider construction, and may embrace offices where neither the Constitution nor the statute may require a confirmation by the Senate. For example, I see nothing in the Constitution in the way of the Legislature empowering the Governor to fill vacancies until the next general election in county offices. Whether this section would require all such appointments to be confirmed by the Senate, if the statute did not so provide, may be doubted. But, doubtless, in all such cases, the latter part of the section, which designates the time for filling the office by a new election, would apply, for all such officers are elected at the general election in November. The section may well apply to all State and county offices. But does it apply to city, ward, borough, or township offices %

    Throughout .the Constitution where the expression ‘general election’ occurs, it means the November election. ‘ The members of the General Assembly shall be chosen at the general election every second year,’ article two, section two. ‘The Governor shall be chosen on the day of the general election,’ article four, section two. ‘County officers shall be elected at the general elections,’ article fourteen, section two. ‘The general election shall be held annually on the Tuesday next following the first Monday of November,’ article eight, section two. And the third section of article eight provides that ‘ all elections for city, ward, borough, and township officers for regular terms of service shall be held on the third Tuesday of February.’ Then section eleven, of.article five, provides that ‘justices of the peace and aldermen shall be elected at the time of the election of constables.’ If this section applies to the office of alderman, and if the election to fill a vacancy in that office shall be held at the general election, then it is in conflict with section two of article five.
    To meet this objection, it is suggested that the word general in .the section means the annual election for officers of that class. 'But that would be giving a totally different meaning to the term general election in this section from all other places where it is used in the Constitution. That is.not to be presumed. A constitution is generally prepared .with great deliberation, and the words carefully selected. Instead of giving that forced, construction to this section, it is much more fair and reasonable to suppose it was not intended to apply to any officers of an elective character, except those who are elected at the general election.
    This view of the section is confirmed when we consider the difference in the offices to be filled at the two elections. All State and county officers are elected at the general election in November. There is great reason why, in the case of a sudden vacancy, as by death, the election should not take place until the electors have had ample time to learn of the vacancy and select a suitable successor. Three months’ time in such cases is perhaps short enough. But in city, ward, borough, or township offices that length of time is not necessary. The twenty days prescribed in the statute for the constable’s notice of the election is sufficient.
    An alderman or justice of the peace is not properly a ward, borough, or township office, nor is the office a judicial office, strictly speaking, although the constitutional provisions on the subject are found in the article on the judiciary. We must, however, consideritas belonging to the class of ward, borough, or township offices, because it is placed in that class by the Constitution. And it is. the only office of that class where, under existing laws, the Governor has power to appoint in case of vacancy.
    Limiting the section to the officers named in it, and such other elective officers as are to be elected at the general election in November, gives full meaning to all the words of the section, involves no inconsistency, harmonizes it with all the parts of the Constitution, and meets all apparent or reasonable necessity for such a provision. From the whole tenor of the section, it seems to me it was not intended to apply to any offices which are to be filled at the February election.
    The demurrer is, therefore, sustained, and judgment is entered for defendant.”
    The Commonwealth thereupon took this writ, assigning for error the entry of judgment for the defendant on the demurrer.

      W. B. Rodgers for plaintiff in error.
    The learned judge in the Court below considered the office of alderman as belonging to the class of ward, borough, or township offices, and not as a judicial office.
    The Constitution does not place aldermen in the class of ward, borough, or township offices. True, the office is to be filled at the time of the ward election, but that fact does not make it a ward office. That it is not a ward, borough, or township office was held by Judge Sterrett, in the Common Pleas, in Com. v. Kerr, 3 Pitts. Rep., 348; Lacock t>. White, 7 Harris, 496.
    It is sufficient to remark in relation to the act of May 6, 1874, and that of 22d March, 1877, P. L. 12, that the power being conferred by both acts on the Governor to fill vacancies, election for the successor must be held under the provisions of the Constitution, and not of the acts of Assembly. Walsh v. Commonwealth, 8 Norris. 419.
    The February election is as general as the November election; both are held in every election district in the State.
    The general election for alderman is the February election. To construe the term general election, as used in this connection, to mean the general election for the class of officers to be chosen, does no violence, and renders operative the whole section.

      Henry Meyer and Montooth Bros, for defendant in error.
    In elections conducted according to the forms of law by legal voters, the vox populi is the lex suprema, and, except in a case so clear as to admit of no doubt, the decision of the people ought not to be overruled: Camphausen’ s Case, 3 Pitts. Rep., 57.

    Callen was elected at a regular election, by lawful voters, and has been duly commissioned by the Governor. In addition to this, so far as legislative enactment can make the law in this case, he has been legally elected. (See act of March 22, 1877, Purdon’s Digest, p. 2135.)
    It is immaterial to him that the Governor may not, under the Constitution, have the power of appointment to fill vacancies in the office of alderman. He shows and stands upon a title derived from the people.
    The provisions of section twenty-five, article five, of the Constitution, instead of showing that the term “judicial office,” used in section eight, article four, applies to more than judges of courts of record, we think limits the meaning of the term to such judges.
    No one using language in its ordinary sense speaks of an alderman as a judge, or as one holding judicial office.
    While it may be true that an alderman is not strictly a ward officer, neither is his office a judicial one. Some of his duties may be judicial, but many of them are not. With as much propriety, the mayor of a city or the coroner of a county might be termed a judicial officer.
    Historically, the office was executive. In the course of time, it drew to itself legislative, as well as magisterial, functions, but at no time was it regarded as a “judicial office.”

      It is not enumerated in the list of courts in which the judicial power of the Commonwealth shall be vested. Article five, section one. _ ■
    _ It is not a county office, for it is not enumerated in the list of such offices. Article fourteen, section one.
    It is equally clear that it is not a State office. It is, then, an office not specially classed, except so far as the Constitution has treated it, as in the category of ward offices. This has been done directly by fixing the time for election. Article five, section eleven.
    We think the framers of the Constitution simply recognized the office as it existed, and left its control to future enactment.
    November 20th, 1882.
   Pee Curiam :

We affirm this judgment upon the opinion of the learned Court below.

Judgment affirmed.