author: Paxson, J.:

text:
    HUNTINGDON COUNTY.
    January Term, 1884,
    No. 114.
    May 29, 1884.
    Gregory’s Appeal.
    1. An assignee for the benefit of creditors stands in the position of his assignor, and the assignee has the same right to enforce the equities of the assignor, and require the application of the firm assets to the payment of the firm debts that the latter would have had if no assignment had been made.
    2. A, one of two copartners, executed an assignment for the benefit of his creditors. Executions were subsequently issued against B, the remaining partner, by his individual creditors, and were restrained by the Court to his interest in the firm, which was sold by the sheriff. Upon a bill in* equity filed before this sale by the assignees of A, the Court, after said sale, appointed a receiver, who took possession of the partnership property and assets, and realized a fund for distribution. Held, that the balance of the fund, after the payment of the execution creditors of the partnership, belonged to the general creditors of the partnership pro rata ill preference to the purchaser of the interest of
    Before Mercur, C. J.; Cordon, Paxson, Trunkey, Sterrett, Creen, and Clark, JJ.

      Appeal of Sarah. L. Gregory from the decree of the Court of Common Pleas of Huntingdon County overruling exceptions to and confirming the report of an auditor appointed by the Court to distribute the balance in the hands of a receiver appointed to collect the assets, property, or effects belonging to the firm of B. Green & Co.
    The following facts were found by the auditor, William Dorris:
    For several years previous to January, 1882, Barton Green and Lewis L. Gregory, as partners, trading under the firm name of B. Green & Co., carried on a store for the sale of general merchandise in Huntingdon. On January 26, 1882, Barton Green and Sarah, his wife, made a voluntary deed of assignment to Thomas W. Myton and Logan Martin for the benefit of Green’s creditors of “all the goods, chattels, and effects and property of every kind, real, personal, and mixed, of the said Barton Green.”
    On January 27, 1882, three executions were issued by Sarah Gregory against Lewis L. Gregory. To these the sheriff made the following return: “By virtue of this writ and other writs in my hand, after giving legal notice, I did, on the 3d of February, 1882, sell at public outcry the partnership interest of L. L. Gregory, in the firm of B. Green & Co., to Mrs. Sarah Gregory for the sum of $50, "which sum I have in my hands.”
    After the assignment by Barton Green, executions were issued on judgments against B. Green & Co. by Hazlett Bros., the First National Bank of Huntingdon, Charles Green, Fisher & Sons, and J. R. Henderson. On February 2, 1882, the assignees of Barton Green presented their petition to the Court, setting forth “that if the sale of the property is allowed to proceed by virtue of said executions, your petitioners believe that the plaintiffs in said executions will claim and perhaps be entitled to have the proceeds of the sale of the partnership property applied, first, to the executions against the firm of B. Green & Co., and after they are satisfied, the surplus to the execution against Lewis L. Gregory in payment and satisfaction of his individual indebtedness, thus taking away from petitioners the interest in said property conveyed to them by said assignment, and taking away from the unsecured creditors of B. Green & Co. the property and funds primarily liable for the partnership debts, as also depriving the said Barton Green of a portion of the funds from which his individual creditors may be paid.” The petition prayed that the execution of Sarah Gregory be stayed so far as the said partnership property of B. Green & Co. is concerned, and as to the interest of Lewis L. Gregory therein. On the same day the Court made an order staying the executions against the firm of B. Green & Co., “the liens of the ft. fas. to remain, and to come in on a fund realized from the sale of property on which writs are liens. As to the writs against Lewis L. Gregory, individual member of said firm, the levy upon said writs, so far as the firm of B. Green & Co. is concerned, is restricted and limited to the interest of said Lewis L. Gregory in the firm of B. Green & Co., and, so far as its execution is confined to levy and sale of said interest in said firm, it is. not' interfered with, but the sheriff is at liberty to proceed with the execution of the same.”
    On the same day, February 2, a bill in equity was filed by T. W. My ton, Logan Martin, assignees of B. Green, and B. Green against Lewis L. Gregory, Sarah Gregory, et al. The bill set forth that Gregory had caused to be entered against him three judgments in favor of his wife, on which he had caused executions to be issued, and had directed the sheriff to levy upon the partnership property of B. Green & Co.; that he was wholly and entirely insolvent, without property of any kind; that he was largely indebted to said firm; that he had taken possession of the partnership books of accounts, and refused to permit their inspection; that he had collected money due to the firm, and was attempting to collect more, and that “great loss would follow in that the creditors of the firm of B. Green & Co. will not be paid their respective just demands in full.”
    The bill prayed for substantially the same relief as was asked for in the petition of the assignees presented the same day, and further prayed “that some proper person be appointed to receive and collect all money which may be coming to the said copartnership, make sale of the property of every kind thereof, and account for the same according to law.” In accordance with the prayers of the bill and petition, the Court, on February 6, appointed M. M. McNeil receiver, to collect the debts due and outstanding, and other assets belonging to the partnership, and to sell goods and partnership effects.
    The receiver sold the partnership goods and effects, collected notes, 'book accounts, and other dioses in action, and filed his first account on January 8, 1883, showing a balance for distribution, after deducting expenses, of $2. 202 29.
    On March. 13, 1883, it was agreed between the counsel of Barton Green’s assignees and the counsel of Sarah and Lewis L. Gregory, that “the auditor shall distribute the fund, if the said assignees of Barton Green and Mrs. Sarah L. Gregory are entitled to the same after distribution to partnership executions, to the said assignees, and Mrs. Sarah L. Gregory, to be disposed of and distributed as their several interests, in pursuance of said partnership, and the assignment to T. W. My ton and Logan Martin, assignees of B. Green, and sale to Sarah Gregory of the interest of Lewis L. Gregory, may appear to be, upon final decree, in the bill in equity, No. 41, April term, 1883.”
    The auditor reported, inter alia, as follows:
    “The claims presented to your auditor amount to $7,100, and the assets, in the hands of the receiver for distribution, amount to $2,202 29, showing that the firm of B. Green & Co., was insolvent on the 26 January, 1882, the date of the assignment by Barton Green. This assignment operated as a dissolution of the partnership, so far as the continuance of the business was concerned, but the connection still remained until the affairs would be wound up. The assignees are not strictly parties with Gregory, the survivor or solvent party, but still that community of interest remains that is necessary until the affairs are wound up, and that requires that what was partnership property before, shall continue for the purpose of a distribution, not as the rights of the creditors, but as the rights of the partners themselves require, and it is through the operation of administering the equities, as between the partners themselves, that the creditors have that opportunity: Williams, ex. parte., 11 Yes., 4. What are these equities, and how are they to be administered? They are simply the right of the individual partners to require that the partnership assets shall be applied to the payment of the partnership debts, and not to the individual debts of the partners. Barton Green exercised that equity in handing over to his assignees all his interest in the partnership property, under the implied trust that they would convert it into money and apply it, pro rala, to the payment of the firm debts. The equities of the parties did not cease, and were not defeated by the assignment, but they continued until the partnership affairs have been wound up : 2 Lea. Gas', in Eq., 404 Story on part, sec 326. “ This right is a privilege or lien on the funds, fully recognized by courts of equity.”
    To enforce this equity, Green joined with his assignees in the bill in equity, praying that his partner, Gregory, should be restrained and enjoined from selling the partnership effects. The assignees are the debtor’s instruments for distribution, and stand in relation to the property as stood the debtor himself. The property is transferred to them as it would have been transferred to the debtor’s right hand: Yandyke v. Christ, 7 W. & S., 375.
    By accepting the trust, the assignees became the trustees of the creditors, (McLellan’s Ap., 2 Cas., 463,) and every act done to protect the interests of the creditors was the act of the creditors themselves through their lawfully constructed trustees. The creditors were as effectually-represented in the bill in equity as though each individual had been named a coplaintiff. We have, then, one of the two partners, (the assignor,) the assignees, and the creditors acting in concert, vigilant in the assertion of their rights, carrying out the provisions of the law, or, in other words, working out the equities of the parties ; true, in many cases it is said the creditors, as such, have no control in enforcing their rights, that the equity to have the partnership property applied to partnership debts was to be worked out through the partners, but the creditors might compel them to use their names for this purpose if they were backward in protecting their rights: Backus v. Murphy, 3 Wr., 402. What was the position of the other partner, Lewis L. Gregory, in his relation to the partnership, the assignees, and the partnership creditors % He was in possession of the partnership property, with full control over it, not as owner, but as trustee for the creditors, not to carry on the business, but to wind it up for the benefit of the creditors. His possession was qualified and clothed with a trust to apply the property in discharge of the joint debts: Story on Part., 564; 601 Williams ex parte, 11 ves., 5. The assignees of Green were not in the situation of copartners with Gregory for the purpose of carrying on the trade, but are considered as copartners for the purpose of winding up the concern, and the obligation to settle the partnership accounts is not more imperative on the assignees than on Gregory : Coll on Part., 486. Their interests were identical, and both parties were clothed with a trust from which neither could be relieved until all the assets were distributed among creditors of the partnership. Lewis Gregory, being then in possession, clothed with this trust, could have sold the partnership property to pay the partnership debts, but it does not follow that this right could be transferred to another : Fraser v. Kershaw, 2 Kay & Johnson, 501. The possession of Gregory was but for one day. On the 27th January, 1882, three executions were placed in hands of the sheriff in favor of Sarah Gregory, and on the 3d February the sheriff sold the interest of Lewis L. Gregory in the partnership to Mrs. Sarah Gregory, his wife, for $50. This sale, under executions against Gregory for his separate debt, conferred no greater interest than he had himself, to wit: his share of the assets after the payment of the partnership debts: Lead. Cas. in Eq., 408; Lurborrow’s Ap., 3 Nor., 404. Your auditor is free to admit that there are authorities which are adverse to this view of the effect of the sheriff’s sale of the interest of Lewis Gregory, bnt after examining all of them and giving the various questions the most careful consideration, he is convinced that this is the only construction which works out the equities of the parties and does substantial justice. The leading case of Loner & Stauffer, IP. R., Í98, followed by Kelly’s Ap., 4 liar., 59 ; Baker’s Ap., 9 Har., 77; Coover’s Ap., 5 Cas., 9, and many others establishes clearly that the equities of the creditors are to be worked out through the equities of the partnership, and that sales on separate executions of the firm property which destroy the dominion of the parties over it, destroys the equity of the creditors whose liens have not actually attached, and the effect by private sales cannot be less. If Barton Green had made an absolute sale of hiá interest in the partnership, or an assignment not for the benefit of his creditors, thereby parting with his interest in the firm and causing its dissolution, or if his interest had been sold on an execution by an individual creditor, and a similar sale had been made of the interest of Lewis L. Gregory, then these cases would apply, but under the facts here, as stated and discussed in this report, they have no application.”
    The auditor, after allowing certain claims for fees, costs, expenses, and rents, which were not disputed, distributed the balance in his hands, amounting to $1,322 02, to the firm’s execution creditors named above in full of all their claims, and to the firm’s general creditors pro. rata.

    Sarah L. Gregory filed, inter alia, the following exceptions to the auditor’s report:

      First. The auditor erred in not distributing after other liens, if any, and costs of audit, the whole fund to the assignees of Barton Green, and Sarah Gregory, alienee of Lewis L. Gregory, as per agreement of counsel.

      Second. The auditor erred in not deciding that the deed of assignment of 26th January, 1882, by Barton Green and wife to Thomas W. My ton and Logan. Martin, his asisignees, for the benefit of his own creditors, followed by the sheriff5 s sale on the 3d of February, 1882, of all the partnership interest of Lewis L. Gregory in the firm of B. Green & Co., passed to the said assignees and alienee, the whole interest in the corpus of the partnership property of said firm, and that the said assignees and alienee were entitled to the fund in exclusion of general creditors without lien by judicial process upon it, and in not making his distribution of the fund accordingly.

      Third. The auditor erred in making any distribution to general creditors of B. Green & Co., without execution or lien on the fund. '
    The Court dismissed these exceptions and confirmed the auditor’s report.
    Sarah L. Gregory thereupon took this appeal, assigning for error the dismissal of her exceptions.

      R. B. Petrilcin and W. IT. Woods for appellant.
    The assignment of Barton Green to his assignees, worked a dissolution of the partnership subject to the equity of the copartner 'to have the partnership property applied to partnership debts: Moddewell v. Keever, 8 W. & S., 63.
    The assignees of Barton Green did not, by the assignment, become partners with Lewis L. Gregory in the partnership effects. They were the trustees for the creditors of Barton Green: Baker’s Appeal, 9 Harris, 82 ; Durborrow’s Appeal, 3 Norris, 404; Seigel v. Chidsey, 4 Casey, 286.
    By the sale of the interest of Lewis L. Gregory, and by the assignment of Barton Green, the corpus of the partnership property passes to the purchasers and assigns, and the partnership creditors cannot follow them : Doner v. Stauffer, 1 Pa., 198; .Rex v. Lommon, 3 Phil., 287; Coover’s Appeal, 5 Casey, 9.

      R. M. Speer aud Jno. M. Bailey for appellees.
    Mrs. Gregory did not acquire tire corpus of the partnership property at the sheriff’s sale. She only acquired “the partnership interest of Lewis L. Gregory in the firm of B. Green & Co.” The Court positively prohibited the sheriff from selling anything else.
    The dissolution of the partnership did not prejudice the rights of the partners or their representatives to require that the partnership funds shall be directly and regularly applied to the discharge of the partnership liabilities : 2 Leading Cases in Equity, 404 ; Story on Partnership, 3 Ed., § 326 ; Black’s Appeal, 8 Wr., 508 ; Yanclyke v. Christ, 7 W. & S., 375 ; Backus & Co. v. Murphy, 3 Wr., 397 ; Eraser v. Kershaw, 2 Kay & Johnson, 496.
    June 9, 1884,
   the opinion of the Court was delivered by

Paxson, J.:

This contention arises from the distribution of the fund in the hands of the receiver of the firm of B. Green & Co., raised by him from the sale of the partnership property of said firm.

The auditor, after allowing certain claims for fees, costs, expenses, rent, &c., which are not disputed, distributed the balance in the hands of the receiver: First. To certain executions against the firm which had been stayed by order of court, the lien of which had been preserved by said order; and second, to the general creditors of the firm, pro rata. To this distribution the appellant excepted in the court below, and her exceptions having been dismissed there, has appealed to this court.

The firm consisted of Barton Green and Lewis L. Gregory. Green executed an assignment of his individual property for the payment of his individual creditors. The deed of assignment makes no mention of partnership property or partnership debts. The most that can be claimed for it, as respects the partnership, is that it passed his interest therein, subject to the debts of the firm. Certain executions were then issued against Lewis L. Gregory by his individual creditors. These executions were restrained by the court below to his right, title, and interest in the firm, and nothing more was sold thereunder. -Afterwards, upon a bill in equity, filed b.y the assignees for creditors of Green, the' Court appointed a receiver, who took possession of the partnership property and assets, the proceeds of which are now being distributed.

The appellant has no ground on which to claim the corpus of the partnership property or its proceeds. The purchaser, at a sheriff’s sale, of the interest of a partner in the personal property of the firm, is not thereby entitled to take possession of any portion of the property. All he acquires is the right to an account, and he is not entitled to anything until the firm debts are paid: Durborrow’s Appeal, 3 Norris, 404. The appellant bought the interest of Gregory for $50. What she paid would go to the execution under which the interest was sold; what she bought was the right to any proceeds of the partnership property after the firm debts were paid. Green, the other partner, has an equity which forbids the application of liis share of the firm property to the payment of his partner’s individual debts. It is said, however, that Green may waive this equity. If we concede this, it does not help the appellant. There has been no such waiver. On the contrary, Green’s assignees are in court, and have filed a bill to prevent such an application of the firm property. A voluntary assignee stands upon the footing of his assignor. .The object and legal effect of the assignment, so far as it affects the partnership, was to pass the assignor’s interest in the firm, after the payment of the firm debts, to his individual creditors. The assignee has the same'right to enforce the equities of the assignor that the latter would have if no assignment had been made. The case does not require elaboration.

The decree.is affirmed, and the appeal dismissed at the costs of the appellants.


source: Caselaw Access Project

author: Gkeen, J.:

license: Public Domain

text:
    July Term, 1884,
    No. 61.
    May 28, 1884.
    Henderson’s Appeal.
    1. Where a sheriff paid the money realized from an execution to the attorneys of record for the plaintiff after the return day of the writ, and the rule to pay.the money into court was not granted until more than two months after the payment, and was not served upon the sheriff until four months had elapsed, his defense against the rule is sufficient, unless there are other facts which deprive him of the right to set up the payment.
    2. The sheriff, having been ruled on the 10th of the month to return the writ, paid the moneys to the counsel of record for plaintiff upon the 16th, and returned the writ upon the 17th. A rule to pay the moneys into court was applied for on the 18th, was not granted for two months, and was not issued until nearly four months later. Held, that it was too late.
    3. Written notice to pay the moneys into court, service of which is accepted for the sheriff by an attorney, who testifies that he did it without examination, that he never communicated the matter to the sheriff, that lie liad no authority to accept service, and that when he was to accept service or notice of any rules the sheriff always directed him to do it, is not sufficient to charge the sheriff.
    4. Where counsel of record performed all the professional service rendered, obtained the confession of judgment, issued the execution, delivered it to the sheriff, caused it to be levied and directed the sale, notified the plaintiff of the judgment and execution, to which plaintiff made no objection, but wrote asking for a statement of the writs and thanking them for information, plaintiff cannot set up, as against the sheriff, that such counsel were not entitled to receive the moneys obtained upon the executions.

      Before Merque, C. J.; Gordon, Trunkey, Paxson, Sterrett, Green, and Clark, JJ.
    Appeal of Thomas K. Henderson from a decree of the Court of Common Pleas of Huntingdon Qounty, discharging a rule on Thomas J. Dunkel, sheriff of Centre county, to pay money into court arising from the‘sale of the personal property of Fleck & Miller.
    The facts, as they appeared before the court, from evidence taken and depositions read at the hearing a-nd argument of the rule, were as follows:
    Prior to March, 1883, Fleck & Miller were engaged in mercantile business in Philipsburg, Centre county, Pa. On March 16, 1883, Fleck & Miller’ executed judgment notes in Huntingdon county to Crosswell & Miller for $900, F. K. Henderson for $492, and to seven other creditors for various amounts. Judgment was entered in the common pleas of Huntingdon county on each of these notes by Speer & McMurtrie, attorneys-at-law, in Huntingdon. Thomas Miller, one of the firm of Fleck & Miller, testified that both Mr. Fleck and himself went to Huntingdon to the office of Speer & McMurtrie. “We made confession of judgment to the parties. We did it on that day because we found we were going to fail, and we preferred our home creditors.” Miller testified that the firm of Fleck & Miller owed Thomas K. Henderson $474 50, but that, owing to an error in summing up the account, judgment had been confessed to him for $492. The above judgments were entered on March 23, 1883, in the common pleas of Centre county, and writs of test, ii.fa. were issued on them March 24, 1883, returnable on April 9, 1883. On March 27, 1883, Speer & McMurtrie, who were not the regular attorneys of Henderson, informed Henderson by letter of what had been done, to which he replied:
    “ March %8, 1883.

    “Messrs. Speer & McMurtrie :
    “Gents : Yours to hand. In reply, I did not know of the failure of Messrs. Fleck & Miller until I received yours. Will certainly give the matter my attention, as my claim is justly due and owing. Will you please give me a statement of the writs, with the names of the plaintiffs, &c., as I want to go to the sale and protect my claim ? Much obliged for your information.
    “Respectfully,
    “Tiios. K. Henderson.”
    Under the above-mentioned writs, Thos. J. Dunkel, sheriff of Centre county, levied upon the stock of merchandise and personal property of Fleck & Miller, and sold it at public outcry in Philipsburg, commencing on April 4, 1883, and continuing from day to day until all the property levied upon was sold. Henderson testified, inter alia, as follows :
    “I went over to the sale. Sheriff Dunkel, of Centre county, was managing the sale. I met the sheriff at the Ward House, in Tyrone, as I was going over to the sale. He showed me the writs in his hands against Fleck & Miller * * * * At Philipsburg I told him I expected the store to be retailed out and the most made of it that could be, and in the event of my judgment not being covered — debt, interest, and costs — that he should pay the money into court, as I intended contesting some of the claims; that I believed them to be fraudulent, one of them at least. * * * * I did not notify Speer & Mc-Murtrie to retire from the case. I did not recognize them as my attorneys at anytime.” Dunkel testified: “He (Henderson) did not, at the Ward House in Tyrone, or in Philipsburg during the sale, that I remember, give me any notice to pay the money into court. I don’t think I had notice at any time from Henderson that I was to pay the money into court, until after it was actually paid over to Speer & McMurtrie. Henderson said something to me about not paying the money to Speer & McMurtrie, but I don’t recollect that he said to pay it to any one else. * * * -k j paid the entire amount to Speer & McMurtrie, the attorneys on the several writs, and took their receipt therefor.” On April 11, 1883, a written notice, signed by T. K. Henderson, addressed to T. J. Dunkel, Esq., sheriff of Centre county, was handed to D. F. Fortney, Esq., of the Centre county bar, notifying the sheriff to pay no money to Speer & McMurtrie on the debt, interest, or attorneys commissions’ in this, case, that Speer & McMurtrie were not his attorneys ; that he should pay the debt and interest to him, and the attorneys’ commissions to his regular attorneys, Petriken & McNeil, or the debt, interest, and attorney’s commissions to Messrs. Petriken & McNeil; and further, that he should pay the whole fund realized from the sale of the personal property of the defendants into court, as he intended having an auditor appointed and contest the validity of some of the judgments. Fortney, who was attorney for the sheriff, indorsed the notice as follows : “And now, April 11, 1883, I hereby accept service of this notice. D. F. Fortney, attorney for sheriff.” .

      Fortney testified as to this notice as follows :
    “Some time on or about the 11th of April, 1883, Mr. Bower, of the firm of Alexander & Bower, attorneys in Bellefonte, came to me with some kind of a paper, which he said had been sent to him by Petrekin & McNeil, of Huntingdon, Pa., to serve on the sheriff of Centre county. Mr. Bower said, when he came to me, that ‘the sheriff is away ; you had better accept service for him.’ I took the paper and wrote on an acceptance and signed it. I think Mr. Bower also left a copy of the notice in my hands. The sheriff was away at the time, and did not return for two or three days. At the time Mr. Bower brought this notice to me I was very busy in my office ; I didn’t even take time to read the notice, and never, to my knowledge, called the attention of the sheriff to it or told him anything about it. I had no interest in the sale of the property of Fleck & Miller; knew nothing about the writs or the sale, or what the sheriff had done; he had never consulted me or said anything to me about it. When I accepted service of this notice I had no direction or authority from him to do so. In cases in which the sheriff desires my advice, he comes to me, and when I am to accept service or notice of any rules for him, he always directs it. I believe that the sheriff never knew anything about the notice to pay this money into court, or that Mr. Henderson wanted to contest judgments, until after the money realized on the sale had been paid over to Speer & McMurtrie, attorneys.”
    On April 10, 1883, the day after the return day of the writs, a rule was granted on .the sheriff to return his writs. On April 16, he paid the money realized from the sale, less his costs to the attorneys of record, Speer & Mc-Murtrie, and took their receipt therefor. On the 17th, he returned the writs to court.
    On April 18, 1883, a rule on the sheriff to pay the money into, court was applied for by M. M. McNeil, but was continued on account of the absence of the president judge. On June 26, the rule was granted. On August 13, it issued, and on August 16, was served on D. F. Fortney and acceptéd by him for the sheriff.
    The Court, after argument on March 2o, 1884, discharged the rule.
    Henderson thereupon took this writ, assigning for error the action of the Court in discharging the rule as above.

      M. M. McNeil for appellant.
    D. F. Fortney was generally known as the sheriff’s attorney, and his acceptance of service as agent was sufficient to bind his principal. When one appears or onc.i undertakes to be an attorney for another, he shall not be permitted to withdraw himself, and the court looks no further, but proceeds as if the attorney had sufficient authority.
    It was the bounden duty of the appellee in this case to pay the money into court: McDonald ®. Todd, 1 Grant, 18; Williams’ Appeal, 9 Barr, 267; Irwin v. Workman, 3 Watts, 362.

      I). F. Fortney for appellee.
    In the absence of fraud or collusion, a payment to the attorney of record discharges the defendant, notwithstanding a notice from parties interested in the judgment: Bracken ?;. Pittsburgh, 27 Pitts. L. J., 202.
    The sheriff’s duty in distributing the proceeds of an execution against personal estate is not to pay the money into court, but to the party by whom the writ was issued: Marble Co. v. Burke, 5 W. N. C., 125; Dunn v. Megarge, 6 W. N. C., 204; Weis ■». Weis, 3 W. N. C., 76 ; Geisel v. Jones, 7 W. N. C., 82; Kirk ». Ruckholdt, Id., 81; Baum v. Brown, 11 W. N. C., 202.
    If the sheriff, in making the distribution, committed an error, or misapplied or misappropriated any of the funds arising from this sale, the proper remedy was by action on his official bond : In re rule upon John S. Bastían, 9 Norris, 472; Mather v. McMichael, 1 Harris, 302; Norton n. Osier, 91 Pa., 160.
    October 6, 1884,
   the opinion of the Court was filed by

Gkeen, J.:

We are unable to perceive any,sufficient reason for reversing the action of the court below in this case. That action was the discharge of a rule on the sheriff of Centre county to pay into the court of common pleas of Hunting-don county the money realized by the sale of the personal property of Fleck & Miller under certain, writs of test. ft. fa. issued out of the common pleas of Huntingdon county, and directed to, and executed by, the appellee, who was sheriff of Centre county. The rule to pay the money into court was not granted until June 26, 1883. It was not served upon the appellee until August 16, 1883. But the appellee, in his capacity as sheriff, had paid over to Messrs. Speer & McMurtrie, the attorneys of record for the appellant in the execution upon which the money was made, on April 16,1883, all the money made upon the writ. The appellant’s judgment was entered on March 23, 1883, in the common pleas of Centre county, the writ of test. ft. fa. was issued on it on the 24th of March, and was returnable on the 9 th of April. On the 17th of April, the sheriff returned the appellant’s writ along with a number of others, and in his return stated that he had applied the -whole amount realized by the sale to the various writs in his hands, giving the precise amounts paid to each. The sale of the personal property of the defendants commenced on the 4th of April and continued during three days, and the appellant was present at the sale, and had full knowledge of it. Speer & McMurtrie were the only attorneys appearing of record upon all the writs, and the entire proceeds of sale were paid to them for their respective clients. As this payment was not made until after the return day of the writs, and as no rule to pay the money into court was granted until more than two months after the payment, and this rule was not served upon the appellee until four months had elapsed, his defense against the rule is sufficient unless there are other facts in the case which change his position and deprive him of his right to set up his payment in reply to the rule. It is alleged that there are such facts. On the 10th of April, the day after the return day of the writs, the sheriff was ruled to return his writs. With that rule he fully complied on the 17th. He was not required by that rule to pay any money into court. The record shows that on the 18th of April a rule to pay in the money was applied for but was not disposed of. The president judge being absent, and objection being made, the hearing of the application was continued until June 26, when the rule was granted, but it was not issued until August 13, nor served until the 16th. This latter day is the first upon which the appellee can be distinctly and certainly charged with a knowledge of the rule. It will scarcely be contended that he was bound to keep in his possession the money arising from the sale for that length of time. The sheriff has an undoubted right to pay to the plaintiff in the execution or his attorney of record the money made under it, unless notified not to do so by some one having the right to give such notices or rule to pay it into court. It is manifest that the rule in this case came too late. But it is further alleged that both a verbal and a written notice not to pay the money to Speer & McMurtrie; and also to pay it into court, were served upon the appellee before the money was paid. On this subject the learned court below has found as a fact that the verbal notice is not sufficiently proved, the evidence in relation to it being contradictory, and the written notice was never served upon the sheriff nor communicated to him in any manner until long after the money was paid over. An examination of the testimony satisfies us that the finding of the court on this subject is correct. As to the verbal notice, the appellant-testified to it, but the appellee denies it, and the evidence is therefore contradictory and not satisfactory. As to the written notice, it is not claimed that it was served upon the appellee, or that he did certainly have any direct knowledge of it. But it is said that service of it was accepted by Mr. Fortney as attorney for the sheriff. Mr. Fortney testifies that a paper was handed to him with a request that he would accept service for the sheriff, that he did so without examining it, being very busy at the time, that he never communicated the matter to the sheriff, or told him anything about the notice ; that he had no direction or authority to accept service of this notice, and' that he had no knowledge of the writs in question or of the sale of the property under them. He also said that when the sheriff desired advice from him, he came to him, and when he was to accépt service or notice of any rules, the sheriff always directed him to do so. It is not claimed that Mr. Fortney was the sheriff’s deputy, and there is no proof of his authority to act for the sheriff, except.that which is contained in his own testimony. As this negatives any authority to bind the sheriff by the acceptance of the notice in question, we do not think it sufficient to charge him with the consequences of a non-observance of its terms. Comment has been made on behalf of the appellant as to the payment to Speer & McMurtrie as attorneys for him on his execution, but we think it without warrant. Those gentlemen performed all the professional service that was rendered in making the money recovered for the appellant. He obtained the confession of judgment in the appellant’s favor, entered the judgment- of record, issued the writ of execution upon it, and took the same to -Centre county, delivered it to the appellee as sheriff of that county to be executed, caused it to be levied upon the goods of the defendants, attended and directed the sale and received the proceeds from the appellee. Immediately after entering the judgment and issuing the execution, they notified the appellant of what they had done in his behalf, and inquired if it was satisfactory. To this notice, which was by letter, the appellant replied, making no objection to their action on his behalf, or to further action by them for him, but on the contrary, requesting them to send him a statement of the various writs issued, and thanking them for their information. The appellant says in his testimony that he was present with Mr. Speer at the sale, and was directed by him to assist the sheriff all he could at the sale, conversed with him in regard to the crier, knew that Speer & McMurtrie had issued his writ, and did not notify them to retire from his case. It was not until after the sale was completed and money made that he claims to have given any indication that Speer & McMurtrie were not his attorneys in this matter, and then it was not by a notice to them, but to the appellee. That notice came too late to deprive them of their authority or their right to compensation after the continued acquiescence of the appellant in their action on his behalf. The evidence impresses us with the conviction that these gentlemen acted for the appellant in this matter with frankness, promptness, fidelity, and efficiency, and that his attempt to take from them their commissions and deny their authority is ungracious and ill-timed. As they were the only attorneys of record, the payment by the appellee to them of the proceeds of the appellant’s writ was an authorized payment, and the learned court below was right in discharging the rule which practically required the appellee to pay the money a second time.

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


author: Sterrett, J.:

text:
    INDIANA COUNTY.
    October and November Term, 1884,
    No. 34.
    October 20, 1884.
    Appeal of John A. Wissel et al. Administrators.
    1. An auditor’s findings of fact are conclusive, unless excepted to specifically.
    2. Claims of an administrator against the estate for services rendered after the account was filed, and found to have been for his own benefit and adverse to the interests of the estate, were rightly rejected.
    3. The decedent’s estate being solvent, there was no error in allowing interest upon claims against the estate up to the time of distribution.
    4. That a widow may waive her right to the whole or any part of the exemption allowed her by law is clearly settled; but such waiver should never be inferred from facts or circumstances that are susceptible of other explanation and do not amount to a legal estoppel.

      Before Merotjr, C. J.; Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.; Clark, J., absent.
    Appeal of John A. Wissel and Martha A. Wissel, administrators of Conrad Wissel, deceased, from the decree of the Orphans’ Court of Indiana County, confirming the auditor’s report distributing moneys in their hands as administrators.
    Conrad Wissel died in July, 1878, and letters of administration were granted to his son, John A. Wissel, and to his widow, Martha Wissel. July 12, 1878, they filed an appraisement of the personal property, amounting to $587 63, and also an appraisement of the goods taken by the widow on her claim for $300, amounting to $120 76. September 4, 1878, exceptions to the latter inventory and appraisement were filed. November 6, 1879, the administrators filed a partial account, charging themselves with $637 63, and claiming, credit for $622 06, including the items of the widow’s claim. Exceptions were filed to this account, which were referred to W. L. Stewart as auditor.
    November 10, 1879, the widow filed an appraisement and designation of the real estate of the decedent chosen by her for the balance of her claim of exemption. The same appraisers who had appraised the personal property and the goods and chattels claimed by the widow appraised the real estate, and reported that it could not be divided without injury to the whole. Exceptions were filed to this appraisement, upon the grounds that the widow had already taken personal property to the value of $300, and that she had failed to elect to retain the same out of the real estate within one year from the death of the decedent.
    December 15, 1879, the administrators presented a petition for the sale of the real estate for the payment of debts of the decedent, and thereupon the real estate was sold. July 28, 1881, the administrators filed a supplemental and. final account, showing a fund in their hands of $4,028 57, and claiming credits amounting to $2,813 66. Exceptions were filed to this account, and W. L. Stewart was appointed auditor.
    The testimony before the auditor, with reference to the widow’s claim, was as follows :

      J. A. Wissel testified : The widow made a claim upon .me for her $300 allowance. She made it from the begining. She took $120 76 out of the appraisement. That left $179 24 back on her claim. I have paid her that amount out of this fund.

      A. II Apple testified: I was one of the ajjpraisers of. the Conrad Wissel estate. The widow took a lot of the furniture and we were called back to strike off some of it, as she thought she could do with less; don’t mind what it amounted to.

      S. M. Clarlt sworn: I was counsel for Adam Wissel, as administrator of Conrad Wissel, deceased. The widow took a part of her $300 in personal property. The appraisers could not give it to her out of the real estate. In settling the account, I entered a credit for the amount of personal property taken by the widow. Exceptions were filed to that appraisement, alleging that the appraisement was too low. When I filed the second account, those exceptions were still pending, and as the determination of the question raised by the exceptions, one way or the other, would settle the amount that she was to draw out of the real estate, under my advice no credit was entered in the account for the residue of the $300, for the reason that we did not know what the residue would be until those exceptions were disposed of. I supposed that this would be a question for the auditor upon distribution, and therefore I advised that no credit be entered at that time.

      A. II. Apple recalled: Mrs. Wissel claimed that she had $300 to get out of the estate. I think her exact words were: “ The law gives me $300,” and Jamison then told her that she could take it in goods or money. We were taken back a time or two to reduce the amount of the goods, as she found she could do with less and wanted to take the balance in money.
    The auditor made a first report, inter alia:

    “The greater portion of the .evidence offered at the last hearing was in reference to the widow’s claim for a portion of her $300 exemption out .of the real estate, this being the purpose for which the report was sent back to the auditor. After due consideration of the testimony and the facts in the case, the auditor rejects this claim for the reasons:

      First. That the claim was not made, or at least put in practical shape, until after the rights of the heirs and creditors had been affected, more than a year having elapsed since the death of Conrad Wissel and the granting of letters of administration: See Baskins’ Appeal, 2 Wright, 65, and Burk v. Gleason, 10 Wright, 297.

      Second. The widow’s selection of the real estate, or rather to have the balance of her claim for $300 taken out of it, was never confirmed by the court, the proper tribunal to pass upon the question.

      Third. The amount taken by the widow ou t of the personal property did not exhaust it, and, as shown by the appraisement of the real estate,' the remainder of the $300 could not be given to her without selling the real estate; and this could not be done, the widow being compelled to exhaust the personal property first before asking that the real estate should be sold in order to give her the balance of the$300 due her: See Scott’s Estate, 2 Piula. R., 135.

      Fourth. Because no credit was claimed for the balance of the $300, in the final account of the administrators. This amount could have been inserted in the account, with an explanation that it was subject to the claim taken out of the goods and chattels, and if their appraised value was changed by the court, then these said claims upon the real estate would be raised or changed so as to complete the $300, and no more.

      Fifth. The widow’s list of the personal goods and chattels that she elected to take at the appraisement does not show that she elected to take the balance out of the real estate.”
    The auditor made a second report, inter alia :

    “ J. A. Wissel presented a claim of the widow for the balance of the $300 that she would have been entitled to retain under the law. There were appraised and set aside for the widow $120 76 worth of goods and chattels. The •widow’s list does not show that she elected to take the balance in cash, and no other credit than the one for $120 76 is claimed in the accounts of the administrators. In this connection, the fact is noted that the widow herself is one of the administrators. Under the ruling in Davis’ Appeal, 34 Pa. St. R., 256, and Baskins’ Appeal, 38 do., 65, the right to the balance of the $300 has been waived. This claim is not, therefore, allowed. * * *
    “ J. A. Wissel, one of the administrators of the said Conrad Wissel, deceased, claims $75 for services rendered the estate since the filing of the final account. Any claims that the said administrator might have had were considered and passed upon by the auditor and court in passing upon the exceptions to the accounts of said administrator. Prom his acquaintance with the affairs of said estate, the auditor finds, as a fact, that what was done by the said claimant was against the interest of said estate and in his own individual and personal interest. This claim is, therefore, not allowed.
    In connection with the above, the claim of Jos. M. Thompson, Esq., for $200, for professional services, was presented. This claim is rejected for the same reason as the preceding, i. e., that the services rendered were not in the interest of the estate, but against it. Hence claimant will have to look to J. A. Wissel, individually, and not as administrator, for compensation for his services.
    Also the claim of Gen. Harry White, for $50, for services, was presented to the auditor. This is a very moderate charge, but this is not the question to be decided. This claim is rejected for the reasons stated in the two preceding ones.”
    The auditor allowed interest on the claims of creditors up to the time of distribution.
    The following exceptions to the auditor’s report were filed:

      First. The auditor erred in rejecting the claim of J. A. Wissel for services rendered.

      Second. The auditor erred in rejecting the claim of Martha Wissel for the balance of her three hundred dollars..

      Third. The auditor erred in his calculation of interest to date of distribution.

      Fourth. The auditor erred in rejecting the claims of Jos. M. Thompson and Harry White for professional services rendered said estate.
    The court below, Blair, J., December 3, 1883, dismissed the exceptions, whereupon this appeal was taken and errors assigned as follows :

      First. The Court erred in confirming the auditor’s report rejecting the claim of J. A. Wissel for services rendered. '

      Second. The Court erred in confirming the auditor’s report rejecting the claim of Martha Wissel for the balance of her three hundred dollars.

      Third. The Court erred in confirming the auditor’s report rejecting the claim of Joseph M. Thompson and Harry White for professional services rendei’ed said estate.

      Fourth. The Court erred in confirming the auditor’s report in his calculation of interest.

      Harry White for the appellants.

      J. N. Banks and John Jt. Wilson for the appellees.
    January 5, 1885,
   the opinion of the Court was delivered by

Sterrett, J.:

An affidavit, in due form, was supplied in time to perfect the appeal, and hence the motion to quash is denied.

In view of the facts found by the learned auditor, the claim of appellant, Jolin A. Wissel, “for services rendered the estate since the filing of his final aócount,” was rightly rejected. He found, as a fact, that the services were not only for appellant’s own benefit, but adverse to the interests of the estate. The only rational conclusion he could draw therefrom was, that the claim should not be paid out of the fund for distribution. Exceptions wrere taken to this and other legal conclusions of the, auditor, but none were filed, either before him or in the court below, to his findings of fact. If appellant intended to question the correctness of the latter, he should have excepted thereto specifically. This was not done, and they must now be regarded as conclusive. But, if this were not so, the result would be the same, because there appears to be nothing on the record to convict the auditor or the court below of error in finding the fact, or in the conclusion drawn therefrom.

What has just been said is equally applicable to the claims for professional services referred to in the third specification. .There appears to be no objection to the amount of these claims found respectively; but, the learned auditor having found that the services wrere for the personal benefit of one of the administrators and against the interest of the estate, it is very evident they were not entitled to participate in the distribution.

There is nothing in the fourth specification that requires special notice. It is not sustained.

Tlie subject of complaint, in the second specification, is the rejection of Mrs. Wissel’s claim for $179 24, balance due her as widow under the exemption act.

Shortly after the decease of Conrad Wissel, in 1878, personal property to the amount of $120 76 was appraised and set apart to his widow. Exceptions to the appraisement were filed, and a commissioner was appointed to take testimony, but nothing further was done until after the administrators filed their account.

In that account they claimed credit for the appraised value of the personal property set apart to the widow, and the same was finally allowed. The allowance of the credit thus claimed was substantially a dismissal of the then pending exceptions to the widow’s appraisement. Until they were disposed of, it was not at all certain that there would be any residue to be claimed out of either real or personal property. After the exceptions were in effect dismissed, the right of the widow to receive the residue of the $300 exemption out of the fund raised by sale of the real estate was denied by appellants. Their contention before the auditor appointed to distribute the fund was that she had waived her right to said residue, and in this they were sustained by the finding of the learned auditor, whose report was approved by the court.

That a widow may waive her right to the whole or any part of the exemption allowed her by law, is clearly settled ; but such waiver should never be inferred from facts or circumstances that are susceptible of other reasonable explanation, and do not amount to a legal estoppel. It was clearly shown, in this case, that when the personal property was»being appraised, Mrs. Wissel claimed the full benefit of the exemption in her favox’, as widow of the intestate, and we find nothing in the evidence to justify the conclusion that she then, or at axxy other time, relinquished her right to any part thereof. Her co-administrator, J. A. Wissel, testified: “The'widow made a claim on xne for her $300 allowance; she made it from the beginning. She took $120 76 out of the appraisement. That left $179 24 back on her claim. I have paid that amount out of this fxxnd.” One of the appraisers, in his testimony, says: “Mrs. Wissel'claimed that she had $300 to get out of the estate. I think her exact words were ‘ the law gives me $300,’ and Jamison, one of the appx’aisers, then told her that she could take it ixx goods or money. We were taken back a time or two to reduce the amount of goods, as she found she coxxld do with less, and wanted to take balaxxce in money.” It is true the real estate, out of which the widow had a right to claim the residue, was not appx’aised under the px’ovisions of the exemption law until November’, 1879 ; but it was appraised by the same persons who had previously appraised the personal property retained by her, and their final action may well be regarded as a continuance and completion of the appraisement xxnder her claim. It does not appear to have beexx her fault that the x’eal estate.was not appraised sooner. The appraisement of the personal px’operty selected by her was excepted to on the ground that the valuations were too low. If the exceptants had succeeded in showing that the personal property taken by her was worth $300 or mox’e, she would have had no claim on the realty under the .exemption law, ando no appraisement thereof would have been necessary.

It does xxot appear that the delay in appraising the real estate was, in any manner, prejudicial to the interest of creditors or distributees. The fact that no credit was ta.kexx by the admixxistrators in their final account for- the residue "claimed by the widow out of the real estate, is fully explained by one of the witnesses, who was counsel for the administrators in the preparation of their account.

There is nothing in the testimony to warrant the conclusion that Mrs. Wissel waived or ever intended to relinquish her claim to the full amount allowed her by law; nor to bring the case within the principles recognized in Davis’ Appeal, 10 Casey, 256; or Baskins’ Appeal, 2 Wright, 65, on the authority of which the case appears to have been ruled in the court below.

Decree reversed at the costs of the appellees, and the record remitted, with instructions to distribute the fund in accordance with this opinion.


text:
    LACKAWANNA COUNTY.
    January Term, 1884,
    No. 50.
    February 27, 1884.
    Grambs v. Lynch et al.

    1. In an action of ejectment, defendants offered in evidence the exemplification of the record of the judgment upon which the real estate in controversy was sold, and under which defendants claimed title. The certificate of the prothonotary, which was printed in defendants’ but not in plaintiff’s paper-book, set forth “ that the above and foregoing is a true and correct copy of the whole record * * * so full and entire as the same now remains of record and on file in said court.” Held, that this certificate was sufficient to entitle the exemplification to be admitted in evidence.
    2. Plaintiff’s objection that the certificate is defective, inasmuch that it does not purport to certify the whole record, might be answered by saying that said certificate is not printed in plaintiff’s paper-book with the record.
    3. Where the sheriff’s deeds for the real estate in controversy had been altered by erasing in the description the words “ city of Scranton,” and writing over the erasure the words “ borough of Dunmore,” the testimony of the deputy sheriff that he made the alterations before the deeds were acknowledged, and without the privity of the purchaser, removed the objection to their admissibility.
    4. The Court below charged the jury that “where a witness goes upon the witness-stand and swears positively to a fact, and that fact is not contradicted, it is established, and there is nothing to submit to a jury. We say to you there is nothing in this case for yon to pass upon, save only to agree to a verdict in favor of these defendants.” Held, to be error, as the question of the credibility of the witness cannot be taken from the jury.
    5. Where exceptions are taken to a portion of the charge and to an answer to a point submitted, which have no separate bearing on the case, and the instructions thereunder could have done no harm, they will be dismissed.

      Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.
    Error to the Court of Common Pleas of Laclmwanna County.

    Ejectment by Charles H. Grambs against I. V. Lynch, J. C. Miles, assignee of I. Y. Lynch, Peter Davidson, and Charles P. Davidson, assignee of John Stuart, defendants, and Oscar F. Freeman and Thomas Davidson, terre tenants.
    U pon the trial in the court below before Handley, P. J., the following facts appeared :
    On March 11, 1872, an execution issued upon a judgment in the court of common pleas of Luzerne county in favor of I. Y. Lynch to the use of R. L. Beecher v. Charles Grambs. By virtue of this execution levy was made on two lots of land, the ownership of which was in the defendant. The lots were described in the levy as being “situated upon the easterly side of Franklin avenue, in the city of Scranton, county of Luzerne, and State of Pennsylvania,” and as being lots numbers three and four “in square or block number three hundréd and six (306) upon the plot of Meylert’s addition to the city of Scranton and Green Ridge.” These two lots adjoined each other, were of the same size, each having a two-story plank dwelling-house and barn. These lots, however, were not actually within the corporate limits of the city of Scranton. The borough of Dunmore had a prolongation of narrow width reaching out into and cutting through the territory of the city of Scranton, and terminating in a point on the bank of the Lackawanna river. A. N. Meylert had owned a piece of land covering a portion, if not the whole, of the said prolongation of the borough of Dunmore. As the growth of the city increased, its streets were extended, and ran directly across this prolongation. On the northeasterly side, George Sanderson, many years before, had laid out a town plot and gave it the name of Green Ridge. The trustee for creditors of Meylert caused his land at the place in question to be subdivided, and styled the plot “Meylert’s addition to the-city of Scranton and Green Ridge.” The two lots levied upon, as aforesaid, were on this plot, and were sold by the sheriff on the 6th day of April, 1872. They were bought by Peter Davidson for $4,210..
    The attention of Grambs, the defendant in the execution, was called to the advertisement of the sheriff’s sale. He recognized it as describing his property, and attended the sale. After the sale he endeavored to procure it to be set aside, because of misdescription, on the ground that the property was in Dunmore borough instead of the city of Scranton as advertised. The rule to set aside the sale was discharged, and on January 25, 1873, the sheriffs deeds for the lots were acknowledged in opon court.
    Defendants’ counsel offered in evidence exemplification of the record of judgment No. 1922, October term, 1871, court of common pleas of Luzerne county, in favor of I. Y. Lynch, assigned to R. L. Beecher against Charles H. Grambs.
    Mr. Smith. We object to the offer that the certificate of the prothonotary is insufficient, and does not. entitle the record to go in evidence. .That it appears upon the face of the record that a portion of it is not certified. It appears in the certificate that it is the suit of R. L. Beecher, plaintiff, and Charles II. Grambs, defendant. For those reasons it is not properly admissible.
    The Court. Do you claim that this entry here in this mnguage is a part of the record ? The petition for the rule to show cause why the sheriff’s sale shall not be set aside in this case, and the order of said court granting the rule, are not in the files and cannot be found after due diligence. Do you claim that is a part of the record %

    Mr. Farnham. Well, I don’t suppose it would bo a part of the record.
    The Court. Do you claim this is a part of the record ? “Lyncht>. Grambs. Wilkes-Barre, September 1,1872. If John Shouse does not comply with his bid, let writ be stayed.
    (Signed) Charlbs H. Grambs.”
    Is that part of the record in this case ?
    Mr. Farnham. I simply offer the certificate there.
    The Court. Judge Streeter, in passing upon this question in Montrose, where an exemplification from Pike county was offered, showing an award of arbitrators in the suit of Charles Biddee v. J. B. Quick, this exemplification was objected to for three reasons, the last of which was that it is not an entire record, and the part omitted was a part of some documents signed by a man by the name of F. A. L. Smith. Judge Streeter admitted the exemplification except as to that part and as to that he sealed a bill. Now we are willing to pursue the same course in this case. We will admit this exemplification, omitting this paper marked exhibit A, and also paper marked exhibit B. That leaves the question open for you to go before the jury and argue that the whole record in this case has not been presented.

      Mr. Farnham. I understand your honor admits the record as exemplified, if we state we do not claim them as part of the record.
    The Court. If you do not claim these two papers I have had marked, then you take your chances of producing evidence showing the loss of the other papers.
    Mr. Farnham. I understand your honor to admit the paper as evidence ?
    The Court. Yes, sir; with the exception of those two papers. In other words, I rule on that paper as Judge Streeter did in the case from Pike county.
    Mr. Smith. We ask for an exception.
    The Court. Exception noted for plaintiff, at whose request a bill is sealed.
    Mr. Farnha-m. If it is admitted for just that purpose without having the effect of a record, then I do not admit this is no part of the record.
    The Court. We admit it for all it is worth just as you have it made up. We exclude those two papers because they are not part of the case. We will admit it with the exception of those two papers.
    Mr. Farnham. I do not wish to be understood that when I made the admission at the request of the court that the two papers referred to by the court would not be taken as part of the record. That I made it absolutely, but only with the understanding that the court admitted the record generally as an exemplification under the certificate of the prothonotary,
    Mr. Smith. We object to the reading of that record or any portion of it to the jury until it is shown by evidence other than the record that a due and diligent search has been made.
    The Court. Objection overruled. All of the exemplification permitted to be read to the jury with the exception of the papers marked exhibit A and B. (First assignment of error.)
    The prothonotary’s certificate above referred to was not printed in plaintiff’s paper-book, but appears in the appendix to defendants’ paper-book, and is as follows :
    “ State of Pennsylvania, j

      County of Luzerne. [
    I, James M. Norris, Prothonotary of the [Seal.] Court of Common Pleas, in and for said county of Luzerne, do certify that the above and foregoing is a true and correct copy of the whole record of the case therein stated, wherein í. Y. Lynch, assigned to R. L. Beecher, is plaintiff, and Charles Grambs is defendant, so full and entire as the same now remains of record and on file in said court.
    In witness whereof, I have hereunto set my hand and affixed the seal of said court at Wilkes-Barre, this thirteenth day of January, Anno Domini one thousand eight hundred and eighty-three.
    James M. Norris,
    Prothonptary.”
    The defendants’ counsel offered, in evidence, exemplification of the record from the court of common pleas of Luzerne county, of two deeds recorded in the sheriff ’ s deed book, in Luzerne county ; one being for lot No. 3, and the other for lot No. 4, in block No. 306, upon the plot of Meylert’s addition to the borough of Dunmore and Green Nidge. The rest of the description is the same as in the levy.
    Mr. Smith. We object to the evidence.
    Mr. Farnham. We propose to explain this discrepancy.
    The Court. He says he proposes to follow it and explain the discrepancy between the execution and the deed made. You had better call a witness and do that now.
    Mr. Farnham. I will withdraw the offer for the present.
    B. F. Louder called and sworn for defendants :

      Q. State whether or not you were deputy sheriff in April, 1872.
    A. I was.

      Q. Under Sheriff Whitaker ?
    A. Yes, sir.

      Q. You were in the office there? ,
    A. Yes, sir.

      Q. (Paper shown witness.) Whose signature is that?
    A. Mine.

      Q. (Paper shown witness.) Whose signature is that?
    A. Mine ; that is my signature.
    Mr. Farnham. I now offer these two deeds in evidence.
    Mr. Smith. We object to the admission of these deeds in evidence, for the reason that they appear to have been altered in a material part; we allege that the words, “Borough of Dunmore,” have been interlined there, and some words have been erased, and the borough of Dun-more written in. Until it is explained we object to the offer.

      Mr. Earwham. We propose to do that.
    The Court. Deeds admitted in evidence; exception noted for plaintiff, at whose request a bill is sealed.
    (Second assignment of error.)
    The witness further testified that the deed was written by a clerk about the office, that the alteration, by inserting the words “Borough of Dunmore,” was made by him, and that it was done by order of witness, after the deed was drawn and before acknowledgment.
    The alterations were made without the knowledge or privity of Peter Davidson, the purchaser.
    The purchase money paid by Davidson was distributed by the court, through the medium of an audit, to the lien creditors of Grambs.
    At the time of the sheriff’s sale. Boyce was attorney for the plaintiff Grambs, had drawn leases to some of the tenants, and collected the rents. Davidson knew this, and afterwards had Boyce to renew the leases in his name. Boyce informed Grambs that he had handed the leases over to Mr. Price. Price took charge of the properties, and collected the rents for Davidson.
    A dispute arose between Davidson and I. Y. Lynch, regarding the ownership of the property, Lynch allege ing that he furnished the purchase money to Davidson, for the purpose of having it bought in for him. After-wards Lynch made an assignment for the benefit of his creditors' to J. C. Miles. Davidson conveyed the property to John Stuart, who made an assignment for the benefit of his creditors to Charles P. Davidson. An amicable ejectment was then instituted between the assignees of Lynch and Stuart, to determine as between the Lynch and Davidson titles, it being agreed that Mr. Price, the agent, should, meanwhile, collect the rents, and hold them for the party finally found to be the owner.
    Defendants’ attorney presented the following point for charge:
    “That under the law and the evidence in the case, the plaintiff is not entitled to recover,-and the verdict must be for the defendants.”
    This was affirmed by the court.
    (Third assignment of error.)
    Plaintiff’s attorney presented, inter alia,, the following point:
    “In an action founded upon a deed, a material part of it cannot be contradicted or explained away by parol evidence, except inserted through fraud or mistake.”
    The Court answered as follows:

      “Well, now you liave heard what the witnesses said about the location of this property, and you have heard what Louder, the chief clerk of the sheriff, said, hence, we say to you, while this is good law, it does not control the disposition of this case, and, although we affirm it, as we now do as a correct legal proposition, it cannot and should not control the disposition of this case.”
    (Sixth assignment of error.)
    The Court, thereupon, charged the jury, inter alia, as follows :
    “Ought we to permit you to say that when Louder went upon the witness-stand, and testified as to the alterations, that it was made before or after the acknowledgment of the deed, when he testified in the manner that he did, and it is not contradicted? We never submit a question of: fact to a jury unless one witness goes upon the witness stand and swears to one thing, and another witness contradicts him ; where A goes upon the witness-stand and swears the cloth was black, and another witness goes upon the witness-stand and swears it was white, there is a direct contradiction, and in cases of that kind we always submit to the jury the question in dispute. But there is no evidence in this case, remember, contradicting Mr. Louder, or contradicting Mr. Sahm, the chief clerk of the prothonotary, or contradicting the sheriff, Whitaker. Where a witness goes upon the witness-stand and swears positively to a fact, and that fact is not contradicted, it is established in the eyes of the law, and there is nothing to submit to the jury. We say to you that there is nothing in this case for you to pass upon, save only to agree upon a verdict in favor of these defendants.”
    (Fourth assignment of error.)
    x x x x x x x x
    “Now, if he had paid all this judgment by excessive interest, as said by counsel, to these parties, or if this judgment was given for excessive interest in any other transaction that happened between these parties, he had two ways to defeat the collection of that judgment. 'He had, first, the right to go to Lynch and pay it, and at any time within six months thereafter bring an action to recover such excessive interest, with costs ; that is one way he could pursue under the statute of 1858. The other way was to go into court, and, by filing proper affidavits, ask for a rule to show cause why the judgment should not be marked paid, and then, upon taking testimony and bringing home conviction to the mind of the court and the jury that would try the case, that this judgment was based solely upon usury ; that' it was given for excessive interest over and above six per cent., the judgment -would have been marked' of record satisfied, and Lynch -would have held no judgment against this plaintiff, .and hence no execution could have issued. Now, who is to blame because there is a fatal omission in this case ? Mr. Grrambs, as you will see, is a German, and while the law presumes every man understands the law, yet we, as men, fully understand that a man of Grambs’ nationality depends more or less upon some other person to watch his legal rights. Now. who was it that betrayed him ? [Lid he put this matter into the hands of counsel, and did that counsel, or his lawyer, betray him ?• If he did, you certainly will not say, and ought not to say, that there is any one to blame for that but himself, because, when two men deal together, if one betrays the other, that is no reason why a third party should suffer.] (Fifth assignment of error.)
    April 7, 1883, verdict for defendants, upon which judgment was subsequently entered.
    Plaintiff then took out a writ of error, and assigned the six errors set forth above.

      Ranch & Smith for plaintiff in error.
    The record admitted in evidence shows a levy upon two lots in the city of Scranton, while the sheriff’s deeds describe them as being in the borough of Lunmore.
    In the absence of fraud or mistake, the testimony as to the alteration of the deeds was not admissible ; but if it was admissible, it was error to withdraw from the consideration of the jury the effect of such testimony and the credibility of the witness: Wh. Orim. Ev., s. 531. The right to determine the facts is with the jury. The jury should have had submitted to them the right to deliberate, examine, weigh, and determine the effect of such evidence, to say by their verdict whether the evidence of one witness satisfies them of the truth of his statement.
    If the defendants obtained possession in an improper way, the jury should have been allowed to pass upon that question.

      Edward Miles and Alexander Earnham for defendants in error.
    The prothonotary’s certificate to the exemplification conforms to all the requirements : Eberts v. Eberts, 5 P. F. Sm., 120 ; Improvement Go. v. McCreary, 8 Id., 304; Reber v. Wright, 18 Id., 471.

      The testimony shows that the alterations in the sheriff’s deeds were made before the deeds were acknowledged, and that the purchaser was ignorant of the alterations having been made.
    The evidence showing that plaintiff had no title ,tq the property, that it had become divested by the sheriff’s sale, was undisputed, and the Court was therefore right in affirming defendants’ point.
    March 17, 1884,
   the opinion of the Court was delivered by

Paxson, J.:

We are unable to see any sufficient reason why the exemplification referred to in the first assignment of error should be excluded. It was the record of the judgment upon which the real estate in controversy was sold. The objection that the certificate of the prothonotary is defective, inasmuch that it does not purport to certify the whole record, might be answered by saying that said certificate is not printed in plaintiff’s paper-book with the record. It appears, however, in the defendants’ book, and from it we learn that the prothonotary certified ‘ ‘ that, the above and foregoing is a true and correct copy of the whole record * * * so full and entire as the same now remains of record and on file in said court.” That this was sufficient is settled by Eberts v. Eberts, 5 P. F. S., 120; Improvement Company v. McCreary et al., 8 Id., 304; Reber v. Wright, 18 Id., 471. The Court below committed no error in admitting this -paper.

The objection to the exemplification of the two sheriff’s deeds (see second assignment) is equally void of merit. There was an erasure and interlineation in each deed, the words “Borough of Dunmore” having-apparently been written over an erasure. This affected the description of the property, but the deputy sheriff was called and testified that he made the alterations beforé the deeds were acknowledged and without the privity of the purchaser at the sheriff’s sale. This removed the objection to the admissibility of the deeds.

The third and fourth specifications may be considered together. In answer to the defendants’ point, the Court instructed the jury: “ That "under the law and the evidence in the case, the plaintiff is not entitled to recover, and the verdict must be for the defendants.” The learned judge appears to have been under the impression that, because certain'witnesses were not contradicted upon a particular point, there was nothing for the jury to find. This will appear from an extract from his charge, (see fourth specification:) “Where a witness goes upon the witness stand and swears positively to a fact, and that fact is not contradicted, it is established, and there is nothing to submit to a jury. We say to you, there is nothing in this case for you to pass upon, save only to agree to a verdict in favor of these defendants.”

This is an erroneous statement of the case. There is the question of the credibility of the witness, and this cannot be taken from the jury. It is their duty to credit a witness if there is no good reason to the contrary, but the mere manner of a witness may discredit him with the jury, and his story may be so against all the probabilities of the case that a jury may be justified in not believing him. It is settled law that when a case depends upon oral testimony, such testimony must be submitted to the jury. Authorities are hardly needed for so obvious a proposition. It is sufficient to refer to Lamb v. Irwin, 19 P. F. S., 436.

The fifth and sixth assignments may be dismissed with the remark that the portion of the charge of the Court contained in the fifth, and the point and answer embraced in the sixth, had no separate bearing upon the case, and the instructions complained of could have done the plaintiff no harm. But for the errors already noticed, the judgment must be reversed.

Judgment reversed and a venire facias de novo awarded.


author: GrJREEN, J.:

text:
    July Term, 1883,
    No. 177.
    February 27, 1884.
    Wade v. Fahrig.
    1. Evidence that a certain sum of wages due to plaintiff from a corporation employing him wras deducted from his pay, and that a receipt for the amount, purporting to be from the defendant, a tax-collector in the county or Lackawanna, to the plaintiff for county tax, was left with the corporation and delivered to him by its paymaster, is no evidence upon which to support an action of trespass.
    2. Where a judge instructs a jury that, upon the whole evidence, their verdict ought to be for the defendant, he should not permit a verdict to be given for the plaintiff.
    Before Mercur, C. J.; Gordon, Paxson, Trunkey, Sterrett, Green, and Clark, JJ.

      Error to the Court of Common Pleas of Lackawanna County.

    Trespass by F. E. Fahrig against D. H. Wade.
    On the trial, before Handley, P. J., the following facts appeared:
    The borough of Hyde Park, under the authority conferred by acts of Assembly of March 25,1864, (P. L., pp. 84,85,) had issued bonds to pay bounties to volunteers. To obtain funds for the payment of these bonds, a tax was levied in 1873, but collection was restrained by injunction until 1878, when the injunction was dissolved, and the defendant, Wade, who had been duly appointed tax-collector, demanded the tax from the persons against whom it had been assessed. Fahrig, the plaintiff, refused to pay his tax. He was employed by the Delaware, Lackawanna and Western Railroad Company, to the officers of which the collector, Wade, gave written notice of the tax, as provided by act of Assembly of April 17, 1866, (P. L., p. 966.) The warrant under which the collector acted was dated November 17, 1878.
    The plaintiff testified that the company deducted $30 10 from his wages and gave him the following receipt:
    “$29 50 Hyde Paek, Sept. 86, 4879.

    60
    - Received of Frank Fahrig, twenty-nine dollars
    $30 10 and fifty cents for Bounty Tax. 'Duplicate of 1873, 14th ward. per cent.
    Collector.
    Oc. Machinist. D. H. Wade.”
    The defendant testified that the tax levied was $29 50, and that, finding the warrant had expired, he never got any money from the company.
    The defendant presented, inter alia, the following points: "

      First. Under all the evidence in this case, the defendant is not guilty of trespass, and the verdict of the jury must be for the defendant.

      Answer. If this defendant kept strictly within the meaning of the law, if he simply did nothing more than what the evidence in this case now discloses to you, then he is not guilty of trespass, and hence we affirm this point.
    Verdict for the plaintiff, $35 75, and judgment thereon ; whereupon defendant took this writ, assigning for error (1) the answer of the Court to defendant’s point quoted above, and (2) the omission to direct a verdict for defendant

      8. B. Brice and N. J. Wilson for plaintiff in error.
    Where there is an abuse of legal process regular upon its face, case, not trespass, is the proper remedy: Barnett v. Reed,. 51 Pa. St., 190.

      C. Smith for defendant in error.
    The act in this case is the taking of the wages of the plaintiff below, which was done in obedience to the command of the defendant below, and he who commands a trespass is a trespasser : 93 Pa., 234
    Barnett •». Reed, 51 Pa., 190, does not seem to have the slightest application to the case in hand. The case cited simply decides that a sheriff or other ministerial officer will be protected in the execution of legal process regular on its face.
    March 31, 1884,
   the opinion of the Court was delivered by

GrJREEN, J.:

It seems incredible that such a case as this could pass the ordeal of a court of justice. The action was trespass brought against a tax-collector. The paper-book does not inform us what kind of trespass it was, and the evidence leaves the subject equally uncertain. The only witness examined for the plaintiff was the plaintiff himself. He did not testify to a solitary act of trespass of any kind whatever, either to his person, his lands, or his goods. The only subject of proof to be found in his testimony is that a certain sum of wages due him from the Delaware, Lackawanna and Western Railroad Company, amounting to $30 10, was deducted from his pay, and that a certain receipt, purporting to be from the defendant to the plaintiff for bounty tax for the amount stated, was left with the company, and was delivered by the paymaster of the company to the plaintiff. Not a particle of testimony was given that the defendant ever received a penny of this money. On the plaintiff’s own showing, therefore, there was no evidence of any trespass of any kind by the defendant, nor of the receipt of any money by him belonging to the plaintiff.

The plaintiff, having testified, closed his case. Thereupon, the defendant’s counsel asked for a compulsory non-suit, which was refused, for what reason was not stated, and we cannot understand. There was no cause of action whatever against the defendant disclosed by the plaintiff’s testimony, and the non-suit should have been ordered as a matter of course. As this w.as not done, the defendant testified and proved that in November, 1873, about six years before this suit was brought, he had a tax duplicate and warrant for the collection of some bounty tax in which the plaintiff’s name appeared as assessed for $29 50 tax. He does not state that he ever did anything with his warrant, he does not even say that he ever delivered any tax receipt to the railroad company, though it might, perhaps, be inferred that he did. . He did say, however, that he never received any money on any tax receipts, and that, having learned that the warrant and duplicate had expired, he paid no further attention to it. It does not appfear that the defendant ever notified the railroad company to deduct the tax receipts he left with them from the wages of the men. ■ But if he had done so and had received the money, there could have been no recovery against him in an action of trespass. At the close of the testimony, the defendant’s counsel proposed certain points to the court, the first of which was that under all the evidence the verdict should be for the defendant. This the Court answered by saying: “If this defendant kept strictly within the meaning of the law, if he simply did nothing more than what the evidence is this case discloses to you, then he is not guilty of trespass, and hence we affirm this point.” Of course, this was a ruling on the whole of the testimony, and an absolute affirmance of the point. But notwithstanding this, the judge allowed the jury to go out and bring in a verdict for the plaintiff. Of course, this could not be. When the point was affirmed, it was the necessary duty of the court to take a verdict from the jury in favor of the defendant, and not permit them to retire. To allow a verdict for the plaintiff after such a direction, was simply bringing the Court and the administration of justice into contempt. It is useless to discuss the question of trespass. There is not a particle of evidence in the case from beginning to end which would justify a verdict for the plaintiff in an action of trespass.

Judgment reversed.


author: G-keen, J.:

text:
    July Term, 1883,
    No. 176.
    February 27, 1884.
    Wade v. Wright.
    1. Evidence that a tax-collector who sought to collect a tax entered upon the premises of the plaintiff, made a levy upon certain articles of household goods, and advertised them for sale, but that he after-wards abandoned the levy and did not sell the goods, is not sufficient upon which to maintain an action of trespass.
    2. If the entry of the defendant upon the premises of the plaintiff was unlawful, and the latter desired to recover nominal damages for the entry, he should have brought trespass quare clausum fregit..

    3. In an action of trespass, plaintiff could not recover for damages for injury to his business character.
    Before Mercuk, C. J.; Gordon, Paxson, Trtjnkey, Steerett, Green, and Clark, JJ.
    Error to the Court of Common Pleas of Laelcawanna County.

    Trespass for injury to personal property by Duncan Wright against D. H. Wade.
    On the trial before Handley, P. J., the following facts appeared:
    The borough of Hyde Park, under the authority conferred by acts of Assembly of 25th March, 1864, (P. L., pp. 84, 85,) had issued bonds to pay bounties to volunteers. To obtain funds for the payment of these bonds, a tax was levied in 1873, but collection was delayed by injunction until 1878, when it was dissolved, and the defendant, Wade; who had been duly appointed tax-col: lector, demanded the tax from the persons against whom it had been assessed. Wright, the plaintiff, refused to pay his tax; whereupon'the defendant, Wade, made a levy upon Wright’s personal property and advertised, but afterwards, "without moving or disturbing anything, abandoned the levy, the warrant being more than two years old, and the statute not giving effect to it after that period. This suit was brought by Wright before a justice of the peace, who'gave him judgment; it was removed by appeal to the common pleas. The plaintiff gave evidence that the defendant, with a" constable, came to his house in the fall of 1879, levied on his household goods, advertised, and went away. They advertised the goods for sale. The notice was posted around where he resided. The only testimony as to damage was that of the plaintiff, who swore that he was injured in character by the levy and advertisement, to the amount of $25, and that this was his only ground for damages.
    The Court charged the jury, inter alia, as follows:
    “Now the plaintiff, while upon the witness-stand, testified within your hearing that he was injured only in character. If that is true, then, of course, your verdict must be in favor of the defendant. If, however, you believe he was not injured in character, then you may do as you please with this case. As the record is made up, we can only say to you that on his own testimony, if he was injured only in character, then this action will not lie, and it is your duty to render a verdict in favor of the defendant. [If you deem it proper, you may do otherwise ; you can assess the damages at whatever you please. You can make it a million dollars, you may make it one cent, or six cents, whatever you please.]”
    Verdict, guilty of trespass, and judgment for plaintiff, $12 50; whereupon defendant took this writ, assigning for error, first, the portion of the judge’s charge above inclosed in brackets, and second, the omission to direct a verdict for defendant.
    S. B. Price for plaintiff in error.
    The action was commenced before a justice who had no jurisdiction of a case brought for the recovery of consequential damages. The action brought was trespass, and consequential damages, such as here claimed, cannot be recovered in such a suit. An action on the case was the proper remedy for alleged injury: Edelman ®. Yeakel, 27 Penna., 26 ; 1 Chitty’s Pleading, 167.

      O. Smith for defendant in error.
    An unlawful exercise of authority over goods will support an action of trespass : Wilson v. Ellis, 4 Casey, 238.
    March 31, 1884,
   the opinion of the Court was delivered by

G-keen, J.:

This was an action of trespass for injury to personal property, brought before a justice of the peace by the plaintiff, who owed- a tax, against a tax-collector, who sought to collect it by process. There was not a particle of evidence that the defendant seized or even touched a single item of property. He entered the plaintiff ’ s premises, made a levy upon certain articles, which are not described by any witness, and advertised them for sale. The levy was then abandoned, the goods were not sold, and nothing further was done. If the entry of the defendant upon the plaintiff’s premises was unlawful, which has not been proved, and the plaintiff desired to recover nominal damages for the entry, he should have brought trespass, guare clausum fregi'h which he did not do. As his goods were neither seized nor sold, no trespass can be maintained as to them, and therefore the Court should have directed a verdict for the defendant. The plaintiff testified that he had sustained no damage except $25 for injury to liis character. As this ivas so manifestly outside of any possibility of recovery in this form of action, which was trespass and not case, the Court told the jury that if they believed the testimony of the plaintiff, they should find for the defendant. But in the very next sentence of the charge, the judge said to the jury that if they believed the plaintiff was not injured in character, they might do as they pleased with the case, and might give the plaintiff any amount of damages they pleased, from one cent to one million dollars. The error of all this is so manifest that no discussion is needed to prove it. The Court was not asked to direct a verdict for the-defendant, and therefore there is nothing on the record to sustain the second assignment of error. It is very plain, however, that upon the whole testimony, there was no right of action in the plaintiff. '.

Judgment reversed.


author: Tkitnkey, J.:

text:
    LANCASTER COUNTY.
    January Term, 1884,
    No. 44.
    May 20, 1884.
    County of Lancaster v. Burke et al.

    1. When the answer of the Court to a point presented for charge clearly shows that the point was not understood as intended by the counsel who presented it, such counsel should, at the time, make the correction by presenting a point free from ambiguity.
    2. In an issue to ascertain the amount of damages sustained by the opening of a street through plaintiffs’ land, it was error to reject the defendant’s offer to prove that the opening of the street would enable the owners of the property to sub-divide it into blocks of lots by streets and alleys opening into the street causing the damage claimed, which sub-division of property would largely increase its value.
    3. City of Allegheny v. Black, 3 Out., 152, followed.
    Before Merche, C. J. ; Gordon, Paxson, Trhnkey, Stebrett, Green, and Clark, JJ.
    Error to the Court of Common Pleas of Lancaster Qoionty.

    Appeal from the report of viewers, and issne to ascertain the amount of damages sustained by reason of the laying out and opening of Franklin street through the land of James M. Burke and M. Malone, in which James M. Burke, and James M. Burke and Edward McGovern, surviving executors of M. Malone, deceased, for the use •of James M. Burke and Mortimer Malone, were plaintiffs and tlie county of Lancaster was defendant.
    The streets of the city of Lancaster are laid out, opened, and graded under an act of Assembly of April 18, 1873, P. L., 811, the second section of which provides that the court of quarter sessions shall appoint five freeholders to inquire into the damage caused by opening streets, and that it shall be the duty of the said freeholders in assessing damages to consider the advantages which may accrue to the owner or owners of such lands, house or houses, or other property by reason of opening said street, avenue, or highway.
    Upon the trial in the court below, before Livingston, J., the plaintiff offered in evidence three drafts or plans, No. 1 showing that part of the property cut by the opening of Franklin street. No. 2, a profile of Franklin street as it crosses the land, representing cuts and fills, and No. 3 representing the whole tract of 96f acres belonging to plaintiffs.
    Defendant’s counsel objected to No. 1 and No. 2, which objection was overruled. Defendant then took an exception.
    Plaintiff’s witnesses variously estimated the damages suffered by reason of the opening of the street at from $1,200 to about $1,700.
    Defendants’ witnesses testified that the opening of the street would increase the value of the property.
    Defendant offered to prove by John F. Uriel that the opening of Franklin street through the Burke and Malone property would enable the owners of the property to subdivide it into blocks of lots by streets and alleys opening into Franklin street, which sub-division of the property would largely increase its value.
    Objection by plaintiffs sustained. .Exception.
    Defendant’s counsel then requested the Court to charge, inter alia, as follows:

      Second. If the jury find that by the opening of Franklin street through plaintiffs’ property they would be enabled to lay out and open other streets and alleys, according to the city plan, on their lands, thereby increasing their available frontage and the market value of the property as a whole, this circumstance may be taken into account by them in estimating the benefits to be assessed upon the owner.
    The Court answered as follows :
    “This point we decline to affirm. The jury cannot find from the evidence that by the opening of Franklin street through plaintiffs’ property they would be enabled to lay out and open other streets and alleys according to the city plan on their lands, thereby increasing their available frontage and the market value of their property as a whole, for the city plan and other evidence shows that the city of Lancaster has already, by virtue of law, laid out all her streets and alleys over plaintiffs’ land within her borders, and plaintiffs dare not lay out others, or alter or change those she had laid out and taken within the limits of the city, and this jury will take no such proposition as is contained in this point into consideration in making up their verdict.”
    September 5, 1883, verdict for plaintiffs for $793, upon which judgment was afterwards entered.
    Defendant then took out a writ of error, and assigned that the court erred in admitting the draft or plan No. 1 in evidence, in disallowing defendant’s offer as set out above, and in declining to affirm defendant’s second point.

      Hugh R. Fulton and John H. Fry for plaintiff in error.
    The draft or plan is imperfect and misleading to the jury, being without courses, distances, or area measurements, and should not have been admitted in evidence. The narr describes the property cut by the street as containing 200 acres, more or less, and the draft covers 15 or 20 acres. The law requires that the jury should consider the advantages and disadvantages' to the whole tract through which the street passes: R. R. Co. v. Gearhart, 32 P. E. Sm., 260 ; City ». Lennard, 1 Out., 242; City v. Black, 3 Out., 152; R. R. Co. 'v. Bunnell, 31 P. E. Sm., 426 ; Eurman street, Brooklyn, 17 Wend., 670; Barbadoes street, Norristown, 8 Phila. R., 498 ; act of 1873, P. L., 811. The other draft only covers 90& acres.
    The offer to prove that the property could be sub-divided so as to increase its value is similar to that made in City of Allegheny v. Black, 3 Out., 152. Anything peculiar to the property resulting from the opening of the street which is beneficial in its nature should be taken into account, and is a fair subject for the consideration of the jury. The inquiry is not to be limited to the uses to which the owner may wish to put it, but its general market value for any purpose to which it may be applied: R. R. Co. v. Braham, 29 P. P. Sm., 453; Cummings v. Williamsport, 3 Norris, 479; R. R. Co. •». Robinson, 14 Norris, 426; Newville road, 8 Watts, 172.
    The point referred to did not ask the jury to consider the advantages that might accrue by or from other streets which might be opened by the municipal authorities, but only from such as plaintiffs would and should open themselves on their own ground, and which they could never open without the opening of Franklin street.

      George M. Kline for defendants in error. •
    The jury could not have been misled, upon an examination of all the drafts in evidence, and after they had made a personal inspection of the property.
    In considering the advantages, it is not competent for the jury to consider the possibility that the municipal authorities may, at some future day, open other streets through or near the property : Allegheny v. Black, 3 Quterbridge, 154.
    The offer and point submitted had reference to the opening of streets “according to the city plan.” In Frazier street, Allegheny City, the street was opened from one avenue to another, enabling the owner of the property to lay out other streets.
    October 6, 1884,
   the opinion of the Court was delivered by

Tkitnkey, J.:

The charge of the Court was free of error, unless it be found in the answer to the defendant’s second point. From the argument of the plaintiff in error, it appears that that x>oint was intended to refer only to private streets and alleys which the owners of the land could open on their own ground, and not to other streets and alleys which might be opened by the municipal authorities. But it expressly referred to the laying out and opening of other streets and alleys according to the city plan, and the Court ruled that the owners could not lay out others or alter those already laid out. The point may admit of the construction intended by the defendant below, but when the answer so clearly showed how it was understood by the Court, the counsel should then have made the correction by presenting a point free from ambiguity.

At the trial the defendant offered to prove: “'That the opening of Franklin street through the Burke and Malone property would enable the owners of the property to sub-divide it into blocks of lots by streets and alleys opening into Franklin street, which sub-division of the property would largely increase its value.” The admissibility of this offer was settled in the recent case of the City of Allegheny v. Black, 99 Pa. St., 152. In that case, as in this, the offer was to show that the owners could sub-divide the land into blocks of lots by streets and alleys opening into the street causing the damage claimed, which sub-division would increase the value of the property, and its rejection was held to be error. What was then said need not how be repeated. Neither in that case nor this could the offer be1 misunderstood ; it referred in each to the private streets and alleys that the owner may advantageously lay out and open in the division of his lands into lots. If the opening of the public street opened the way to a sub-division of lots, with private streets and alleys, thereby increasing the market value of the whole tract, the fact is as competent as any other matter of advantage for consideration of the jury.

The second assignment of error is sustained.

Judgment reversed and venire facias de novo awarded.