author: Kennedy, J.

text:
    GRAVES against BECKWITH.
    Where A was brought before a Justice of the Peace qn a p'apias, the 3d September, 1831, and at his instance the cause was.cantinued until the 1st of October ensuing ^ upon 33‘s entering into the following recognizance *-B bound in two hundred doi lars as special.bail for the appearance of the defendant in this cause: acknowledge ed 3d September, 1831, before me Job G-ier, J. P. ’* Held, that this is not a recogí, pizaneeqf special bail, within the provisions of the second section of the act oí 3810, for the recovery of demand^ npt texceedihg one hundred dollars, but is a recognizance under the 8th section of the said act, for the appearance of the del fendant, the condition whereof is forfeited, by his not appearing in person on the day fixed — the word special, in spell recognizance, being regarded alj surplusage.
    The,appearance of an attorney, for defendant, on. the (lay appointed in such recog. nizance, the defendant hirrispif not appearing, is no performance of ¡its condition.
    On a scire facias against B. as Bail of A.' it is competent for the plaintiff to give in evidence the note of A. in which the original suit was founded, to ascertain the amount of the deipand. - ' .
    Error to the court' of Common Picas, of' Tioga county-.
    This cause was argued by Rathbone Rnd Rarsans fo,r the plaintiff in error. • -

      Williston, for the defendant in error.
    The facts of the case are fully detailed in the opinion of th«> court which was delivered by
   Kennedy, J.

This action was brought before a Justice of the Peace, upon a recognizance taken before him of hhe plaintiff in error, in the sum of two hundred dollars ^as bail for the appearance of a certain Ezra Southiuorth, on the first day of Optober, then nextfollowing the date of the recognizance, to answer ,th,e defendant in error, at whose suit Soutluoorth had been arrested, and brought before the Justice, upon a capias issued by {nm. The demand of Beckwith the defendant in error, for which the capias had been sued out against kouthworth, was founded upon a note, bearing date the 28th of August, 1828, drawn by Sauthiuorth and Samuel Hammond in favor of Beckwith. . Rlammond was also embraced in the capias, but not found by the constable. On the 3d of Septembei-, 1831, Southworth was brought by the' constable upon the capias before the Justice, to answer Beckweth. , South-worth alleging he was not ready for trial, then prayed a postponment of the trial of the cause until' the .first day of October, then next following, which was granted by the Justice, upon his giving the plaintiff in error, bail, for his appearance before the Justice again on that day. For that purpose Graves, the plaintiff in error, entered then into the following'recognizance ?Hobart B. Graves bound in tVvo hundred dollars, as special bail for “the appearance of the defendant'in the cause; acknowledged, Sept. 3d* 1831, before me Job Geir J. P.” On the first of October following, N, H. Purple appeared as attorney far the-plaintiff in that suit, and Joseph Wilson appeared as attorney for the defendant, but the defendant himself did not appear in person. The plaintiff, by his attorney, objected to the defendant’s appearing by attorney, Unless he also appeared himself in-person, artd claimed that the'reaognizanc-eof his bail should be forfeited, if he did hot do so. Southworlh,. the defendant, did not appear in person, by which the Justice considered the recognizance of his bail forfeited, and that fn his absence, no judgment or further proceeding could be given or. had against him. This suit was instituted shortly after that before, the Justice, by issuing a writ of scire facias upon the recognizance, considering it as having been forfeited. The writ of scire facias, ■ issued by the Justice, recited the recognizanoe in the following-words, ‘‘whereas the said Hobart B. Graves of said county, then and there became bound before our said Justice, in a recognizance of two hundred dollars, conditioned that Ezra E Southioorth. should be and appear before the said Justice, at his office in said Laiorenceville, cm the first day of October, A, D. 1831, at one o.’-. clock, P. M. and not depart the court without leave, &e.

The Justice rendered a'judgment against the plaintiff in error for the amount of the debt, which was under a hundred dollars; which the defendant in error proved was owing to him by Ezra C. Southworlh, and for which he'had brought the suit in which the plaintiff in error became hail for Southwo'rth’s appearance in the manner above ■ stated. And from this judgment the .plaintiff in error appealed to the next county court of Common Pleas, where the cause was aftérwards tried upon the following issues.

1st Plea, No such recognizance as is recited in the writ of scire facias: and replication, that there is such a recognizance.

. 2d. Plea. Appearance of the defendant according to the condition; and replication, that he did not appear according to the condition.

3d. Plea. No judgment or execution against the principle: and a demurrer to it. . ■ } t {

The coúr.t below gaye judgment upon the demurrer in favour of the plaintiff, and upon the trial of the issues of fact, permitted the plaintiff to give in evidence to the jury, ¿gainst the objection of the defendant, the recognizance already recited, and the note, and' charged the jury, that Souihworlh, not having appeared in person before the Justice, on the day mentioned in- the recognizance for that purpose, was a forfeiture of the defendants recognizance, and entitled the plaintiff to maintain this action; and that the plaintiff had a right to recover the amount of the debt clue to him by Ezra C. SouthiOorih, the principal, for which he had brought his suit before the Justice, together with the costs of that suit. That the note given in evidence to them, Was evidence of the plaintiff’s demand in the original suit.

Eight exceptions or errors have been taken and filed here, to the judgments and proceedings had in this case below, which may all be considered and disposed of by solving the following questions.

First, was there any material variance between the recognizance given in evidence, and the one recited in the writ of scire facias?

Second. Had the Justice anj^ authority under the act of Assembly passed the 20th of March, 1S10, entitled -“An Act to amend and consolidate with its supplements the Act entitled an Act for the recovery of debts and demands not exceeding one hundred dollars, before a Justice of the Peace, and for the election of constables, and for other purposes” to take such a recognizance; and if he had, whether was it taken under and in conformity to the provisions contained in the second or the eighth section of the act?

Third. Was the note properly admitted in evidence to the jury?

With respect to the first question.' It appears to me that the recognizance recited in the writ of scire facias is substantially the same with that given in evidence. The amount or sum of money mentioned in both are the same, as also the date and terms thro'’ out, except the words “as special bail” which are omitted in the writ, and which I shall show hereafter are insufficient to determine the true character and nature of this recognizance. The recognizance was therefore properly received in evidence on the trial -of the first issue.

In order to decide the second,question correctly,- it is necessary to refer to the second and eighth sections of, the Act, Pur don’s .Dig. 495 fy 498. Upon the, second section, Justices of the Peace, upon complaint being made to any one of them, aré empowered to issue a summons, if the party complained of be a freeholder, if not, either a summons or warrant of arrest, which is usually called ■a capias, directed to a constable. If a warr’ant of arrest.be issued, the constable is commanded thereby to cause the defendant to appear before the Justice, forthwith, on the service of the writ; but it is also provided by the same section “that in all cases where a warrant or capias is issued against the person of a debtor, it shall and may be lawful for the constable to'take bail for the appearance of the defendant before the Justice, from whom the said warrant or capias may have been issued in the following words: we A. B. and C. J). are held and firmly bound unto E. F. constable of--, or order, in the sum of-, on condition that the said A. B. shall be and appear before G. H. Esq. Justice o'f the Peace in the said township of-, on the — day of •*>-, to answer-, in a pica —Witness our hands the —-day of-. And if on the return of the said warrant or capias, the defendant shall not appear and enter bail before the Justice, in the nature of special bail, the constable may assign the obligation to the plaintiff, if he will accept the same, which obligation may be sued in the name of the"plaintiff, as assignee of the said constable &c. &c. but if the defendant shall appear and enter special bail, the Justice may proceed to a final determination of the suit according to law: and after judgment, such bail shall be proceeded against by scire facias, and shall be liable in the same manner as special bail now is liable, in cases in the courts of Common Pleas, and may surrender the principal to the jail of the proper county, within ten days after the service of the writ of scire facias, in discharge of the bail. Nevertheless, the bail to the constable may enter sufficient special bail to the suit, or cause it to be entered at the return of the warrant or capias, in discharge of. the obligation, when the defendant may neglect or refuse to appear, in which case the Justice may proceed in the same manner as if the defendant had appearedThe eighth section further directs, that upon the affidavit of either party or their agent, that the testimony of any material witness is wanted, who resides out of the county, or from his infirmity of body, or other causes cannot be obtained personally, the cause shall be postponed to a day certain, within such reasonable time as the distance of the witness, the season of the year, and the circumstances' of the roads may render it proper to obtain the deposition of the witnesses wanted; and wherever a cause is postponed at the instance of the defendant, he shall enter into a recognizance, in a sum sufficient to cover the demand in question, together with the costs, with one sufficient surety, for his appearance on the day fixed as aforesaidNow it is very obvious, that by the express terms of the second section, that the bail there spoken of and provided for, and which is to be entered before the Justice, is nor bail for the appearance at or on a particular day, before the Justice, but bail in the nature of special bail, which is, that if the defendant be cast in the action, that he will either pay the condemnation money, or surrender himself to the jail of the county, or that the bail will do this for him Thus it appears that the condition of a recognizance of special bail, is altogether different from the one which was entered in the present case which was, “for the appearance of the defendant in that cause, on the first day of October, then next following. If the Justice had proceeded no further in his memorandum or entry of the recognizance of bail, than the words “special bail,” it might with some propriety have been alleged that, it was a recognizance of special bail within the provisions of the section; for then the law might have supplied the appropriate remidy to a recognizance of special bail; or the Justice from his memorandum might have made it out in due form afterwards, but he has annexed a condition which is incompatible with that of special bail, and cannot be changed. The condition here, then, being set out by the Justice at full length, no other can be substituted; it must determine the true nature of the recognizance, and control the word •'special” which must be regarded as surplusage. If the defendant in the original action had appeared on the 1st of October, 1831, at the hour to which the hearing of the case was adjourned, in his proper person, and the trial had gone on, and judgment been given in favor of the plaintiff against the defendant there, for a sum within the Justice’s jurisdiction, and the defendant had afterwards withdrawn himself, so that neither his property nor body could have been found by the constable upon an execution put into his hands; and in a return made thereto by the constable of “no goods or body,” a scire facias had been issued against the plaintiff in error, upon his recognizance, would he not have said at once it was impossible that he should be made liable to the plaintiff’s suit upon this recognizance; for the condition of it had been performed, that the defendant then had appeared at the very day and-hour fixed, according to the express terms of the condition of the recognizance, and that the record of the Justice shewed all this to beso? No doubt but he Would; and without changing the terms of the condition, which no one will pretend could or ought to be done, he could not in that case have been made liable. Special bail being the only bail which the Justice, under the second section of the*act, was authorized to take, and it having been shewn that the recognizance taken in this case, is not one of special bail, it follows of course, that the Justice had no authority and did not take it under this section.

Let us now turn to that part of the eighth section which has been recited. By this section we have seen, that “wherever a cause is postponed at the instance of the defendant, he shall enter into a recognizance for a sum sufficient to cover the demand ia question, together with the costs, with one sufficient surety for his appearance on the day fixed as aforesaid. Now it do?s appear to me, that the occasion upon which this recognizance was taken, as well as the terms in which it was entered? are both provided for here, most expressly.

Ezra C. Southworth, the defendant in the original action, appeared before the Justied, and asked for a- postponment of the cause, until the first day of October, then next following. After satisfying the Justice, that it Was proper to grant this, what then did that part of the section just recited require? I answer, precisely that which has been done by the Justice in this case. The taking of “a recognizance for a sum sufficient to cover the ' demand in question, together with costs, with one sufficient surety for his appearance on the day fixed as aforesaid.

It has been contended, that this section was only intended to apply to defendants, who were sued by summons; but the terms of the section will warrant no such distinction. Besides, it may well be doubted, whether it would be consistent with the other provisions contained in the act, in favor of freeholder's, to make it applicable to all cases of those who are sued by summons; and if a distinction of any sort is to be made, it would be to extend it to the case of every defendant who is not a freeholder, whether sued by summons or warrant of arrest.

It having been established that the Justice had an authority to take this recognizance under the eighth section of the act, it remains to be inquired into, whether the appearance of an attorney, on the day fixed by the recognizance, for the defendant, was a performance of its condition.- That it is, can scarcely be imagined, I think after reading the sections of the act already recited. It is manifest from the tenor of the second section, that where the defendant has been called upon to answer the plaintiff under a warrant of arrest, that a trial cannot be had, nor yet a judgment obtained against him, without his being personally present before the Justice at the time, or delivered upon special bail, such as I have specified above. It is unnecessary for the determination of this case, to decide whether the plaintiff, in error might not on the day of appearance before the Justice, have entered sufficient, special bail.for the defendant, and then as his agent have demanded a trial, and have compelled the plaintiff to have proceeded with the trial of the cause in the same manner as if the defendant had appeared himself. This, by the express terms in the close of the second section, might have been done by the bail to the constable, in ease the defendant neglected or refused to appear on the day fixed for that purpose in the bail-bond.

I cannot entertain the least shadow of doubt, but that the condition of the recognizance in this case, was forfeited; and that the plaintiff below, had a just right to maintain his action, which brings us to the third question: Was the note properly admitted-in evidence?

That part of the second section under which this recognizance was taken, requires that it shall be “for a sum sufficient to . cover the demand in question, together with the costs.” Thus it appears that the avowed objeet of the recognizance, is to secure the plaintiffin the recovery of his demand against the original defendant, together with the costs of suit. By this must be meant the amount that is justly due to him: because it would be highly unjust for him to recover more; but hów is this amount to be ascertained, if he is not to be permitted to give evidence of it, and the very best evidence too, that the nature of the case admits. For, the demand of the defendant in error, against Southioorth the origininal defendant, being grounded upon a note, the note itself was the very best evidence of the demand, after it was found to have been drawn by Southworth.

From the opinion of this court delivered upon the second question, it follows that the plaintiff in error’s third plea in the court below, was available in law, and the decision of the court upon it was correct.

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    WILSON et. als. against COMMONWEALTH.
    A cause having been referred by consent to an auditor, to report the sum due, if any, to the plaintiff, and the facts connected with any disputed items in the case, rmd his judgment thereon, the auditor made a report accordingly, upon which the court rendered a judgment: Held, that such judgment is not the subject of a Writ of error, unless the parties had agreed it should be.
    Error to Huntingdon county.
    A suit was brought upon an administration bond in the name of the Commonwealth against Thomas Wilson and Wray Maize, surviving obligors in a bond with John didams and Jas. Barbour, and judgment obtained for the penalty. Upon this judgment five writs of scire facias issued for the use of different persons, having claims against the administrators; in each case, this entry was made. “And now, to wit, April 13, 18.31, this cause referred by consent to D. R. Porter, who is to report the sum due, if any, to the plaintiff, and the facts conneeted with any disputed items in the case, and his judgment thereon; exparte rule on ten days’ notice.” The auditor made a report in each case, which was read, and judgment entered thereon by the court, without exceptions having been filed. This writ of error was then sued out, upon which the original judgment, and all the judgments upon the writs of scire facias, were brought up.

      Jl. P. Wilson, for defendant in error
    contended, that the writ of error, could not be supported; 1, Becáuse the judgments were not the subjects of writs of error, and 2. If they were, six several judgments could not be removed by the same writ.

      Potter, for plaintiff in error:
    This was not a reference under the act of 1705, and if it was, the errors appear upon the face of the reports, and therefore, the judgments thereon may be reversed on error. Sutton v. Horn, 7. Serg. fy Rawle, 228. Harker v. Elliot, lb. 284. Gratz v. Phillips, 14 Serg. fy Rawle, 151. Bellas v. Levy, 2 Rawle, 21. Kline v. Guthart, 2 Penn. Rep. 496.
    The whole proceedings were predicated upon the original judgment for the penalty, and it was really a settlement of an estate; unless the whole was thus exhibited by one writ of error it would have been unintelligible.

      Bell in reply not heard.
   Per Curiam.

There is no substantial difference between this case and Kline v. Guthart. By the terms of the submission, the auditor was indeed required to report the facts connected with the disputed items, but there is no agreement that his statement Shall be taken as a special verdict: under such an agreement, there might, perhaps, be no objection to proceed on a case stated by an auditor, as if it were stated by the parties themselves; but if they mean to make the report a ground of error, they should say so, else they must be taken to have agreed to abide by the decision of the tribunal of their choice. And the whole case ought to be stated, instead of the facts connected with particular parts of it, in order to enable the court to give'final judgment for the party who ought to have had judgment in the court below, else it would have to be sent back, in order to be re-stated, or otherwise determined by a jury. But a statement of the facts connected with particular parts of the case, would be so defective, that no agreement could cure it, or enable the court to proceed upon it.

Judgment affirmed.


author: Rogers, J.

text:
    HOLLIDAY against SUMMERVILLE.
    In an action on the case against a devisee, to recover a legacy charged on land, in which the issue is upon the plea of payment, it would be error to reject the evidence of the devise, because the action could not be maintained, for want of proper parties.
    «My son William shall have the tract of land he now lives on, provided he pays to my other «bree children j£300,s &c. is not such a devise as creates a conditional estate in William; but the land is thereby made the fund for the payment of the legacy, and the personal estate is exempted.
    An action cannot he maintained by the legatee against the devisee of the land alone, to recover his legacy; the executor must be joined.
    Error to the Common Pleas of Huntingdon County .
    In this action on the case, in the court below, James Summer-ville and Ruth his wife, were plaintiffs, and William Holliday, executor of William Holliday deceased, was defendant. The plaintiff sought to recover a legacy, created by the following clause in the will of William Holliday, Sr. deceased: “It is my will, that my son William shall have the tract of land he now lives on, provided he pays to my other three children, viz: John, Ruth and Mary, three hundred pounds, to be paid in the following manner, 4’C.” The defendant was the executor of the devisee. The plaintiff having offered in evidence the will, it was objected to, on the general ground, that the action could not be maintained against the devisee, the court over-ruled the objection, and sealed a bill of exceptions. A verdict and judgment were rendered for the plaintiffs, to reverse which this writ of error was sued out.
    Neil and Potter, for plaintiff in error,
    whom the court declined to hear.

      Miles and Blanchard, for defendant in error.
   The opinion of the court was delivered by

Rogers, J.

The will was in support of the declaration on which the defendant had taken issue, and ought, for that reason, to have been submitted to the jury. Houston v. Moor, 3 Serg. & Rawle, 169, and in a case at Philadelphia, not yet reported.

William Holliday made his last will and testament, and among other things, devised as follows: “It is my will that my son William shall have the tract of land he now lives on, provided he pays to my other three children, viz: John, Ruth and Mary, three hundred pounds, to be paid in the following manner, one hundred pounds to be paid one year after my decease, and two hundred pounds to be paid one year after, deducting the sum of twenty four pound five shillings, which sum I owe to him, out of said three hundred pounds. The suit is brought by James Summerville who intermarried with Rzoth, and his wife, against the devisee. The defendant objects that the executors should be joined in the suit; and ever since the case of Brown v. Furer, this point must be considered as settled, although before that decision there was doubt as to the proper parties to the suit. I look upon this as such a charge, as to make the land the fund primarily liable for the payment of the legacy; and as'also exempting the personal estate from the payment; it is not, as has been contended,in the nature of. a conditional estate. It is, then, impossible to distinguish this, from the case of Brown v. Furer, 4 Serg. & Rawle, 217 and Gause v. Wiley, 4. Serg. & Rawle, 509. In order to do complete justice, as is said in one of the cases, it would seem right that the terre tenant should be called on; because they have an immediate interest in the land. There is great reason, also, for including the executor in the action, because by our law, all the lands are liable to the payment of the testator’s debts, and may be taken in execution on ajudgment against the executor. It is proper, therefore, to afford the executor an opportunity of. shewing, that the land is not more than sufficient to discharge the debts; iff which case, the legacy must fall. The practice has been, in con-' formity to the course recommended by the Chief Justice, and it would, no doubt, have been so here; had the suit been brought since that decision. The devisee may well object to pay the legacy, until assured of his title, which can only be, after payment of the debts of the testator. Of the situation of the estate, the executor is alone informed. Besides, if it is-necessafy to sell the land for the payment of the legacy, it goes into the hands of the purchaser, discharged from the debts of the testator. This would be no inconsiderable advantage, in case of a judicial sale. In every view we can take of the case, we see no reason for relaxing the rule, in Brown v. Furer, or making any change in the practice, which has obtained since that decision. It is unnecessary to say, whether a case may not arise, where the devisee would ,be personally liable, and notin respect of the fund; but as this is not a case of the kind, we are of the opinion, the judgment should be reversed.

Judgment reversed.


author: Per Curiam :

text:
    Mat Term, 1881,
    No. 91.
    June 6th, 1881.
    Welch’s Appeal.
    1. Where an executor made a claim against the estate for personal services rendered to the testator, during a period of ten years prior to his death, and the claimant was a son-in-law of the testator in his employ during that period, and in the employ of a firm of which the testator was a principal partner at an adequate salary, and lived in a house of testator without rent, and made no claim for these services during the life of the testator; Held, that any presumption that these services were rendered on a promise of payment, express, or implied, was strongly rebutted.
    2. An agent in the possession of personal property of his principal, to which the principal had a good title, was sued by a third party upon an alleged promise to pay for the property, which promise he was not authorized to make, and denied having made, and was compelled to pay the judgment recovered against him and the expenses of the suit; Held, that he was not entitled to receive this amount from the estate of the principal.
    3. An executor who seeks to appropriate the entire estate to his own use by claims for services and otherwise which upon examination prove to be invalid, will not be allowed commissions, and will be charged interest on the moneys in-his hands so retained.
    4. A creditor having claims against an estate, which he has good reason to believe will be contested, ought not to administer.
    Appeal of Benjamin G. Welch, executor of the estate of William Hancock, deceased, from the decree of the Orphans’ Court of Montour County.

    William Hancock died December 1st, 1872. In his will he appointed James Cousert his executor, and provided' that in case of the death of Cousert, Benjamin G. Welch should succeed him as executor. Letters testamentary were granted to Cousert, who settled his account and died in 1874. Letters were then issued to Welch March 27th, 1875. He filed his account February 24th, 1879, showing receipts to the credit of the estate of $5502.80, and charges against the estate inter alia of $1000 to the credit of the executor for services to the testator from 1862 to 1872, and a further sum of $388.73 to the executor for services to the testator during the same period. There was also a claim of the executor for $961.36 to reimburse himself for the payment of a judgment and costs which had been obtained against him by John Stewart, in a suit to October Term, 1872. Exceptions were filed to the account, and an auditor was appointed to pass upon-them.
    The auditor disallowed all claims for services rendered to the testator more than six years before his death, and awarded to the executor for services within the six years $231.45. He also allowed the claim of $961.36, and the further sum of $275 for commissions.
    Exceptions were taken by the legatees under the will of the testator to his report, and the Court below found the facts concerning the claim for services to be as follows:
    In 1861 or 1862 Benjamin G. Welch married a daughter of William Hancock, and was shortly after employed by the firm of Hancock & Foley, at the rolling-mill operated by them in Danville. They paid him a salary of one thousand dollars a year, and he attended to the business, and at the •same time assisted his father-in-law in matters of business. Mr. Hancock was at that time a partner in a furnace at Plarrisburg, doing business as Hancock & Price. The firm of Hancock & Foley had large business transactions with the firm of Hancock & Price. Mr. Hancock also had an interest in ore lands in Canada; also in the Toronto Street Railway, in Canada, which he sold in 1864. He had a lease of a colliery at Pittston, and between 1862 and 1872 was a partner in the firm of Hancock, Creveling & Co., in the iron business, Hancock & Lehnder in milling business; and from 1868 to January, 1872, in partnership with Welch & Curtis, in the colliery at Pittston, as Hancock & Co.; and from 1st September, 1867, to his death, he owned the larger portion of the stock of the National Iron Company, of which Welch was secretary, treasurer, and superintendent. In the meantime Mr. Hancock had a large contract to construct the Crawfordsville and Logansport Railroad. His affairs, after 1867, at one time were in a critical condition by reason of indorsements of the notes of Hopkins to a large amount. In his matters generally Mr. Hancock consulted Mr. Welch, and relied much upon his judgment, and Mr. Welch rendered more or less service to him in his private matters, while he was in receipt of a salary from the firms in which Mr. Hancock was a member and the chief capitalist. If he had any claim for services, all pi’ior to December 1st, 1866, is barred by the statute of limitations. From the 1st day of June, 1866, to September, 1867, Welch was in the employ of Hancock at a salary of one hundred dollars per month. After Foley & Brother left the Pittston colliery, in September or October, 1866, Welch was engaged with E. J. Curtis, as Curtis & Co., in operating the Pittston colliery, down to 1868, when the new lease to Hancock was obtained, and from that time to January, 1872, he was one of the firm of Hancock & Co., operating that colliery. When the National Iron Company was organized, on the 1st of September, 1867, Mr. Hancock was made president, and was owner of the larger part of the stock. He then did for Welch (as he had said to Mr. Deen he would do) as well as he, Welch, could do elsewhere, by electing him secretary, treasurer, and manager of the company, at a salary of five thousand dollars a year, which he continued to enjoy during the life of Mr. Hancock. During the life of the testator no claim appears to have been made upon him for any extra services beyond the salary stipulated for. No charge was made by Welch, although he is a good business man. The claim now set up reaches back nearly eighteen years before the settlement of the account, which is the first notice of its existence. It was not presented to the former executor. It is supported by testimony of a general character as to the services of Mr. Welch. Some of the most important services alleged to have been performed were rendered during the time Mr. Hancock was paying him a salary. Some of them, as claimed, were for the benefit of Mr. Welch himself as a partner, and all of them during the time he was in receipt of a salary undoubtedly received through Mr. Hancock. Up to September, 1867, he resided in a house belonging to Mr. Hancock rent free.
    Upon these facts the Court said that “ under the evidence hereof, the relationship between the parties, also of the non-claim for services beyond salary as an accountant while in employ of the testator and of the firm in which he was a principal partner; also of the adequacy of the salary to compensate for all services and of the house rent, I am of opinion that any presumption that the services now claimed for were rendered upon a promise of payment either expressed or implied is strongly rebutted.” The exception was sustained, and the entire claim disallowed.

      The Court found the facts concerning the claim for $961.36 to be as follows:
    In 1863 Mr. Hancock leased a colliery at Pittston. For some time prior to the first day of June, 1866, it was operated by Spering & Foley under a lease from Hancock. After they ceased to work the colliery it was operated by Foley & Brother until September or October of that year. While so operating they purchased a span of horses of John Stewart, which were delivered to them at the colliery by Stewart, he taking the note of Foley & Brother for the price, payable two or three months after date. Before the note came due Foley & Brother failed. They sold out to Hancock, and executed to him a bill of sale, which included the horses bought of Stewart. ' The consideration does not appear in the evidence. Welch had knowledge of the bill of sale. After Foley & Brother left, the colliery was operated for a time by B. Gr. Welch & Curtis. Before the Foley note to Stewart became due, Stewart at the colliery demanded the horses of Welch, who refused to give them up, but told Stewart that he would try to influence the father of the Foleys to pay the note. According to the testimony of E. J. Curtis, who was witness to what passed between Stewart and Welch, and according to the testimony of Welch in a suit brought to recover against him, and his declarations before and since, he made no promise to Stewart to pay for the horses or to pay the note of Foley & Brother. The horses were at the colliery when Welch & Curtis, as Curtis & Co., leased and operated the colliery after Foley & Brother left, down to 1868, when the firm of Hancock & Co., consisting of Hancock, Welch & Curtis, was formed, by whom the colliery was operated to January, 1872, about six years after his demand at the colliery for the horses. At October Term, 1872, Stewart brought suit against Welch upon an alleged promise to pay for the horses, and recovered judgment. The amount of the judgment and costs and expenses of securing testimony were equal to the credit claimed by the executor.
    (Jpon this statement of facts the Court said:
    “ Is the estate of the testator liable to the accountant for any part of that judgment or the expenses of defending the suit? I am of the opinion that it is not. Stewart having sold and delivered the horses to Foley & Brother, could not, under any evidence in this case; have recovered the horses from Foley & Brother. So far as appears, the purchase was a fair transaction. He had no right to repossess the horses because they failed in business. Their sale to Mr. Hancock, so far as appears, was entirely fair. Such being the case, Mr. Welch, as a lessee of the colliery or otherwise, had no authority to bind Mr. Hancock by a promise that would hold him to purchase the horses again. Nor does it appear that he had any authority either as lessee or agent to bind Mr. Hancock to pay Foley & Brother’s debido Stewart. If, therefore, he made any promise to prevent Stewart from taking the horses himself, or by a writ of replevin, he made it for purposes of his own, and outside of any authority. But the proof here is that he made no promise, either for the benefit of himself or of Mr. Hancock. It is claimed, however, by Mr. Welch, that because the suit against him was based upon an alleged promise by him to pay for Hancock’s horses, the misfortune of defeat in the suit must be borne by the estate. There is no evidence that Mr. Hancock, in his life, was ever informed of Stewart’s claim. No notice appears to have been given to him, or to his executor, Mr. Cousert, after his death. He vims neither party nor privy to the matter at any time, and his estate is not bound by the judgment. The fact that Hancock’s estate had the horses does not affect the case. The title of Mr. Hancock was derived by purchase and not by virtue of any promise that Mr. Welch did not make.”
    The exception was sustained, and the claim disallowed.
    Upon the exception to the claim of $275 for commissions, the Court said:
    “ Compensation is allowed to executors and other trustees for services performed in the discharge of duties in the interest of the estate represented. In this case the accountant has sought to appropriate the entire estate to his own use by claims for services and otherwise, set up to balance the assets received by him. Antagonistic as his claims were to the estate which he represented, he ought not to have administered upon the estate. A creditor who has claims against an estate, which he has good reason to believe will be contested, ought never to take letters of administration. If such a one does take letters, and seeks to appropriate a large portion of the estate to himself upon claims which, upon investigation, prove to be invalid, he will not be allowed commissions upon the assets received by him.”
    The exception was sustained, and the claim disallowed.
    The Court also surcharged the executor with the sum of $240 for interest on the moneys in his hands, and made a decree accordingly.
    The executor then took this appeal, assigning as error the sustaining of the exceptions as above set forth and the decree.

      S. P. Wolverton, for the appellant.
    If the appellant performed valuable services to the testator, which is not denied, he ought to be paid, and the fact that he was a son-in-law does not preclude his making the claim : Smith v. Milligan, 7 Wr., 107 ; Schoch’s Administrator v. Garrett, 19 P. F. Smith, 144 ; Amey’s Appeal, 13 Wr., 126.
    As to the $961.36 claim : Where a loss is sustained through agency and without any laches on the agent’s part, the principal is bound to indemnify him : Story on Agency, §§ 335, 336, 337, 339 ; Ewell’s Evans on Agency, p. 473.
    It is the right of an agent to be reimbursed all his advances, expenses,and disbursements made in the course of the agency on account of, or for the benefit of, the principal when properly incurred and paid in good faith without default on his part: Maitland v. Martin, 5 Norris, 120 ; Beach v. Branch, 57 Ga.,362 ; Searing v. Butler, 69 Ill., 575 ; Elliott v. Walker, 1 Rawle, 126.
    When the act is not manifestly illegal, and one which the agent does not know to be wrong, the law implies a promise of indemnity by the principal for all losses and damages arising from the execution of the agency: Moore v. Appleton, 26 Ala., 633 ; Ramsay v. Gardner, 11 Johnston, 439 ; Commonwealth v. Vandyke, 57 Pennsylvania State, 34.
    He is entitled to indemnity when compelled to pay damage for taking personal property which he has reasonable ground to believe belongs to his principal: Avery v. Halsey, 14 Peck, 174 ; Drummond v. Humphreys, 39 Maine, 347 ; Stone v. Hooker, 9 Cowen, 154 ; Coventry v. Barton, 17 John, 142 ; D’Arcy v. Lyle, 5 Binney, 441.
    As to commissions: It is not a misappropriation of the moneys of the estate to take credit in his account for any claims he may have against the estate. It is the only course he has to pursue: Souriu’s Estate, 32 Leg. In., 40; Myer’s Appeal, 12 P. F. Smith, 104 ; Brennan’s Estate, 15 P. F. Smith, 16 ; Walls’s Appeal, 2 Wr., 464. No reason is given for charging the account with interest.

      Edward H. Baldy & Son and H. M. Hinckley for the appellees.
    Any presumption of promise on the part of the testator to pay for the services of Welch is rebutted by the circumstances : Smith v. Milligan, 7 Wr., 107 ; Amey’s Appeal, 13 Wr., 126.
    To make the claim for $961.36 come within the principle established by the authorities cited by plaintiff in error, he must show a loss to an agent sustained while acting within the scope of his authority, and arising from the fact of agency.

      The Court was right in disallowing commissions: Swartswolter’s Account, 4 Watts, 77 ; Robinett’s Appeal, 12 Casey, 190 ; Holman’s Appeal, 12 Harris, 179 ; Stehman’s Appeal, 5 Barr, 417 ; Norris’s Appeal, 21 P. F. Smith, 126.
   Per Curiam :

It would have been more regular if the Court had recommitted the report of the auditor with direction to find and report the facts. The Court, however, determined to act themselves as auditors, and their finding of the facts is certainly entitled to all the weight which an auditor’s finding would have had. Upon these facts thus found we are of opinion that the decree was perfectly right, and we affirm this decree upon the opinion of the learned Court.

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


author: Sterrett, J.

text:
    May Teem, 1881,
    No. 75.
    May 4th, 1881.
    Elizabeth Brubaker’s Appeal.
    1. Letters of administration should not be granted to two or more persons jointly unless they mutually agree to accept the trust.
    2. Two separate co-ordinate administrations on the same estate are unknown to our jurisprudence in theory, and would be entirely impracticable in practice.
    3. When the class primarily entitled to administration consists of two or more persons, it is the duty of the register to grant letters to such one, or more of them, as he shall judge will best administer the estate; and when properly exercised, his discretion is not the subject of review, either in the Orphans’ Court or here.
    4. Primogeniture gives no right of preference; but if the scale is in other respects exactly poised, the fact of being the elder brother or sister, ought to incline the balance.
    5. When the register has exercised his discretion he cannot revoke the letters except for sufficient cause.
    6. When, therefore, the register had granted letters of administration to the older of two daughters of the decedent, and the Orphans’ Court, against the wish of the administratrix, afterward directed that letters should also be granted to the younger daughter, it was held to be error.
    Appeal from the decree of tbe Orphans’ Court of Lancaster County, ordering the issue of letters of administration upon the estate of Jacob Sheaffer, deceased.
    Jacob Sheaffer died intestate, August 14th, 1880, leaving no widow and but two children, Elizabeth Brubaker, wife of Levi B. Brubaker, and Lavinia Wolf, wife of Henry Wolf. Letters of administration were granted by the register of Lancaster County to Elizabeth Brubaker, the elder daughter, August 24th, 1880. Lavinia Wolf, the younger daughter, and her husband, September 2d, 1880, made application by petition to the register, asking to be joined in the letters of administration already granted. The register refused a hearing and denied the application, whereupon Mrs. Wolf and her husband appealed to the Court below, September 11th, 1880, and the Court granted a rule to show cause why she should not be joined in the administration. Depositions were taken upon both sides, from which it appeared that Levi B. Brubaker and Ilenry Wolf were both indebted to the estate of the decedent, that they and their wives had endeavored to come to a settlement without success, and Mrs. Brubaker testified that she and her sister would not be able to get along together in the settlement of the estate.
    The Court below, Patterson, J., sustained the appeal and ordered letters of administration to be issued to Mrs. Lavinia W olf “ on her father’s estate upon her entering good and . sufficient security with the register for the faithful performance of her duties as administratrix, providing her husband’s assent is obtained, which assent will be evidenced by his joining in the administration bond.”
    From this decree Mrs. Brubaker appealed, and it was. assigned for error that
    1. The Court erred in ordering and decreeing letters of administration to be issued to Lavinia Wolf.
    2. The Court erred in forcing a joint administration upon Mrs. Brubaker, to whom letters of administration had already been granted on this estate.

      H. C. Brubaker and A. J. Eberly, for appellants.

      First: Should the Court have interfered with the register after he had granted letters ? The 22d section of the act of March 15th, 1832, provides that the register shall grant letters to “ such one or more of them as he shall judge will best administer the estate.” This clause applies where there is no widow, or she renounces. The discretion of the register is limited to a selection from those asking in each class in their order: Eshleman’s Appeal, 15 P. F. Smith, 318. While primogeniture gives no right of preference, if the scale is poised, being the elder would incline the balance: Hood on Executors, p. 64; 1 Williams on Executors, p. 427; Warwick v. Greville, 1 Phillimore, 125 ; Coppin v. Dillon, 4 Hagg., 376. When the register had made his choice his discretion was gone and he could not revoke the letters unless for cause. Shomo’s Appeal, 7 P. F. Smith, 356; Hood on Executors, p. 64. The correctness of this construction appears more clearly from an inquiry into the origin of the statute 21' Henry VIII, ch. v.; Rob. Dig., 250; Hood on Executors, p. 467; McClelland’s Appeal, 4 Harris, 115 ; see also Toller, p. 89 ; 1 Williams, p. 371.

      Second: It was forcing a joint administration on the appellant. Letters granted to more than one person must necessarily be joint. They could not sue or be sued separately, or sue each other for their respective indebtedness to the estate: Simon v. Albright, 12 S. & R., 429.
    A sole administration is preferred by the Court, and a joint administration is never forced: 1 Williams on Executors, pp. 363, 374 to 375; Hood on Executors, p. 64; Toller, p. 89 ; Bell v. Timismore, 2 Phillimore, 22 ; Dampier v. Colson, Ibid. 54 ; Leggatt v. Leggatt, 1 Lee, 375.

      S. P. Eby, for the appellee.
    Neither the Courts below nor the Supreme Court hesitate to reverse the decisions of the register when justice requires it: Williams’s Appeal, 7 Barr, 259; McClelland’s Appeal,4 Harris, 111; Bieber’s Appeal, 1 Jones, 157; Eshleman’s Appeal, 15 P. F. Smith, 311.
    The interests involved in this estate dependent upon these two daughters being placed upon perfect equality, are too weighty to be overturned by the simple fact of the difference in ages.
   The opinion of the Court was delivered by

Sterrett, J.

Jacob Sheaffer survived his wife and died intestate, August 14th, 1880, leaving, as his only heirs at law, two married daughters, Elizabeth Brubaker and Lavinia Wolf. Ten days after his decease letters of administration on his estate were duly granted by the register to Mrs. Brubaker, the elder daughter; and on September 2d the petition of the younger daughter and her husband was presented, praying that she be joined with her sister in- the administration already granted. This application was refused by the register, and thereupon the petitioners appealed from his decision to the Orphans’ Court, and a rule, with notice to Mrs. Brubaker, was granted to show cause why Mrs. Wolf should not be joined in the administration. Under this rule depositions were taken by both parties, and the Court, after hearing, on January 29th, 1881, made a decree sustaining the appeal and ordering letters of administration to be issued to Mrs. Wolf, “ on her father’s estate, upon her entering good and sufficient security with the register for the faithful performance of her duties as administratrix, providing her husband’s assent is obtained, which assent will be evidenced by his joining in the administration bond.”

It is contended that the Court erred in thus ordering letters of administration to be issued to Mrs. "Wolf, and in forcing a joint administration against the consent of Mrs. Brubaker, to whom letters had been previously granted.

The learned judge in his opinion says: “The present administratrix and the appellant are both equally competent to perform the duties of administrators ; both stand in equal degree of relationship to the decedent; both have equal share or interest in his estate; and, looking on this appeal, we look at the whole case on its merits and the rights of the respective parties, and we are of the opinion that letters of administration should be granted to this appellant, that both may be on an equality. But the Court does not feel at liberty to enjoin a joint administration between these sisters; indeed, the prevailing rule is not to enforce a joint administration on unwilling parties.”

It is very evident from this that the Court recognized the impropriety of attempting to create a joint administration against the protest of one of the parties thereto. The nature of the office forbids it. Joint administration necessarily involves joint liability, and no one can be compelled to assume such responsibility. Due regal’d to individual rights, as w’ell as the interest of the estate, requires that administration should not be committed to two or more persons unless they mutually agree to accept the trust. Nor does the decree in this case require joint administration. If it did, it would be manifestly wi’ong; but its effect is to create two separate co-ordinate administrations on the same estate, and for that reason it is equally objectionable. Such a thing is unknown to our jurisprudence, even in theory, and in practice it would be entirely impracticable. Under the English statute the ordinary may commit the administration to the widow and next of kin jointly, or he may grant to one exclusive administration of a particular portion of the goods of the intestate, and to' the other a separate administration of the residue; but no warrant for any such practice as that contemplated by the decree of the Orphans’ Court can be found in our statute.

When the class primarily entitled to administration consists of several persons, it is the duty of the register to grant letters to such one or more of them as he shall judge will best administer the estate. He may thus grant letters to them all jointly, if they so desire; or, in his discretion, he may select one of them and commit the administration to him alone, to the exclusion of the others; and, when properly exercised, his discretion is not the subject of review, either in the Orphans’ Court or here. He is not bound to select the oldest in preference to the youngest of the class entitled to administration. Primogeniture gives no right of preference so as to weigh against the wish of the majority of interests; yet, if things were precisely equal, if the scale is exactly poised, being the elder brother would incline the balance: Hood on Executors, 64; 1 Williams on Executors, 4:17; and the same principle applies to the elder of two sisters. In Shomo’s Appeal, it is said among children the right does not depend on seniority, it is entirely in the discretion of the register; but when he has exercised his discretion by selecting one of the sons, it is no longer in his power to revoke the letters thus granted and issue them to another, except for sufficient cause. “ When administration has been committed to any of the next of kin, others, even in the same degree of kindred, have, during the life of the administrator, no title to a similar grantHood on Executors, 64. In the case before us, the two daughters of the intestate were equally competent to administer, and the register might have granted letters to them jointly if they had so desired; but he was not bound to do so. In the exercise of his discretion he selected Mrs. Brubaker, who requested that letters should be issued to herself alone. Having done so, it was not in his power to revoke the letters thus granted, or to join the younger sister in the administration against the will of the other. Nor is there anything in the circumstances, as disclosed by the testimony, to justify the Court in reversing the decision .of the register and creating a dual administration, which, if it could be permitted to stand, would undoubtedly be prejudicial to the interests of the estate.

The decree of the Orphans’ Court is reversed and set aside, and the decision of the register is affirmed ; and it is ordered that the costs, including the costs of this appeal, be paid by the appellee.


text:
    May Term, 1880,

      No. 190.
    May 5th, 1881.
    Heidelbaugh versus Thomas.
    1. The act of March 14th, 1876, provides that any court of record having jurisdiction of a judgment entered therein originally, or by transfer from any other court, shall, upon application by the defendant or defendants in the said judgment, or his or her or their legal representatives, “ or other person or persons concerned in interest therein,” setting forth that the same has been fully paid, grant a rule to show cause why the judgment should not be marked satisfied of record; and if it shall appear to the satisfaction of the Court that the judgment has been fully paid, “ as set forth in the application of the defendant or defendants, the Court shall then direct the prothonotary to mark such judgment satisfied of record.” Held, that a subsequent judgment creditor of the defendant is not “a person concerned in interest therein,” within the meaning of the act.
    2. A statute in delegation of the common law, and which denies the right of trial by jury, should be strictly construed.
    Error to the Court of Common Pleas of Lancaster County.

    The record showed that Milton Heidelbaugh held a judgment against Arthur Thomas, entered January 30th, 1877, in the Court of Common Pleas of Lancaster County, to January Term, 1877, No. 174, for $625, with interest from April 1st, 1876. On the 23d of August, 1879, upon the affidavit of one of the members of the firm of George M. Steinman & Co., which firm held a judgment against Thomas obtaiued subsequently to that of Heidelbaugh, the Court granted a rule upon Heidelbaugh to show cause why his judgment should not be satisfied of record.
    Upon the hearing of this rule, the Court, Livingston, J., having found from the depositions taken, that the judgment had been fully paid, made an order as follows:
    “ It therefore appearing to the satisfaction of the Court that said judgment has been fully paid, as set forth in the petition or application presented to the Court, the Court doth now, April 3d, 1889, order and direct the prothonotary to mark said judgment satisfied of record ; and doth further order, direct, and decree that Milton Heidelbaugh, the plaintiff, shall pay all costs incurred in and by these proceedings on this application to have satisfaction entered of record".”
    It was assigned as error, inter alia, that “the Court erred in granting a rule to show cause why the judgment to January Term, 1877, No. 174, should not be satisfied of record by order of Court, etc., at the instance of George M. Stein-man & Co., subsequent judgment creditor. This rule is grantable only at the instance of the defendant, Arthur Thomas, alone.”

      Philip D. Baker for plaintiff in error.
    The defendant has not made the application himself, or any of his legal representatives, and those who did make it are not “ persons concerned therein ” under the act of March 14th, 1876: Thompson’s Appeal, 7 P. F. Smith, 178 ; Dougherty’s Estate, 9 W. & S., 196 ; Appeal of Second National Bank of Titusville, 4 Norris, 531.

      H. M. North for defendant in error.
    There is little doubt that Steinman & Co. could have an issue to determine how much if anything is due on the judgment, or they might show payment before an auditor to distribute: Lewis v. Rogers, 4 Harris, 21; Clark v. Douglass, 12 P. F. Smith, 408 ; Knabbs’s Appeal, 10 Barr, 186 ; Classon’s Appeal, 10 Harris, 365. If necessary that this rule should be in defendant’s name the Court should consider it as so made. But this is a proper application under the act: Felt v. Cook, 9 W. N. C., 246. Obviously, the other persons “ concerned in interest therein ” are all those whose interests are prejudiced by the omission to satisfy the judgment. The act of 1876 was passed to confer the power and change the rule as established by Horner v. Hower, 3 Wr., 126, and Reynolds v. Barnes, 26 P. F. Smith, 427. The presumption is that the power of the Court was rightly exercised: Bain v. Funk, 11 P. F. Smith, 185.
   The opinion of the Court was delivered by

Sterrett, J.

The proceedings which resulted in the order of Court directing the judgment of plaintiff in error against Arthur Thomas to be marked “ satisfied of record,” were based on the petition of George M. Steinman & Co., subsequent judgment creditors of said Thomas, presented under the act of March 14th, 1876, and the only question is whether, under the provisions of the act, the petitioners had a right to commence and prosecute such proceedings.

That act provides that any court of record, having jurisdiction of a judgment entered therein originally, or by transfer from any other court, “ shall, upon application by the defendant or defendants in the said judgment, or his or her or their legal representatives, or other person or persons concerned in interest therein,” setting forth that the same has been fully paid, grant a rule to show cause why the judgment should not be marked satisfied of record; and if it shall appear to the satisfaction of the Court that the judgment has been fully paid, “ as set forth in the application of the defendant or defendants, the Court shall then direct the prothonotary to mark such judgment satisfied of record,” etc. P. L., 78. If, within the true intent and meaning of the act, the petitioners are “ persons concerned in interest ” in the judgment, the application was rightly entertained by the Court, and, inasmuch as the evidence was sufficient to j ustify the order of satisfaction, it would follow that the same was properly made. But we are of opinion that the class of persons described as “ concerned in interest ” in the judgment does not include subsequent judgment creditors of the defendant, and therefore the petitioners had no standing in court.

The summary power conferred by the act is in derogation of the common law, and, virtually, a denial of the right of trial by jury. It should, therefore, be strictly construed, as was held in Gifford’s Appeal, 9 W.N. C., 246. Perhaps,in an enlarged sense of the phrase, it may be said that a subsequent judgment creditor is concerned in interest ” in prior judgments against his debtor, in that the value of his security may be more or less affected by such antecedent liens; but his interest is not of the direct nature that is contemplated by the act. It differs from that of the defendant in the judgment, or his legal representatives, who are expressly named in the act. The interest of a ¿erre tenant of land, bound by the judgment, or of bail for stay of execution, is also different from that of a subsequent judgment creditor. The latter is not responsible, either in person or estate, for the payment of the j udgment, but the others are; and, in that respect, their position is akin to that of the defendant. It may be fairly inferred that the persons described as “ concerned in interest therein ” are those only whose relation to the judgment is similar to that of the defendant, — a relation of liability either in person or estate. By limiting the operation of the act to the defendant, his legal representatives, and others who are personally responsible for the judgment, or whose property is exposed to execution in satisfaction thereof, full force and effect is given to the language of the statute, and the legislative intent will be carried out. If the legislature had intended to include creditors they would have said so in express terms.

The phrase “ persons concerned in interest therein” appears to have been borrowed from the 14th section of the original act, relating to the satisfaction of judgments, passed in 1791: Purdon, 824, pi. 26. It has never been claimed that subsequent judgment creditors are within the provisions of that act. Nor, is there any reason why they should be considered as included in the act of 1876. Ample provision for their protection exists in proceedings for distribution. All questions touching the payment of prior judgments may be there raised and determined.

The order and decree of the Court of Common Pleas is reversed, and the petition of George M. Steinman & Co. is dismissed with costs.


author: Per Curiam:

text:
    May Term, 1881,
    No. 70.
    May 2d, 1881.
    Basch versus Sener.
    1. If materials have been supplied on the credit of a building in the course of construction and could have been used, a mechanics’ lien may be filed though they never went into it at all.
    2. When, therefore, all the items furnished had been delivered more than six months before the filing of the lien, except certain articles which were used in the construction of a fence outside of the building, and the Court charged that if the lumber was furnished on the credit of the building, and was delivered at the place of building, it was not necessary that the party furnishing it should prove that all, or indeed any of it, was used in the building, and that it might have been used elsewhere, and his lien be good; and if furnished for the building without any knowledge that part of it was tobe used for outhouses or fencing the lien would be good. Held, that it was not error.
    Error to the Court of Common Pleas of Lancaster County.

      Scire facias sur mechanics’ lien, entered by Gottlieb Sener, J. F. Sener, Henry Sener, A, Sener, doing business as G-. Sener & Sons, against Adolph N. Basch, contractor, and Charles Morton, Moses Maxwell, Eobert Able, and Johnson Wesley, committee and trustees of St. Stephen’s Tabernacle, No. 5, of the Independent Order of Brothers and Sisters of Love and Charity of Lancaster City.
    Pontz & Brothers, who had obtained judgment against Basch, and had issued an attachment against the money due him by the owners of the building, were, July 7th, 1880, granted leave to interplead.
    The lien was entered January 21st, 1876, for lumber, for $398.65. The last three items were as follows :
    August 20th, 60 pales, 4 feet, @ 2|, . . . . $1.35
    “ “ 2 rails, 2 x 4 x 20, . . • . . . .90

      “ “ 2 posts,.....■ . . .50
    $2.75
    All of the other items of the claim were delivered between May 27th and July 12th, 1875.
    On the trial J. F. Sener, one of the plaintiffs, testified as to the pales, rails, and posts: “ It was lumber for fencing, I suppose.”
    Basch, the contractor, testified:
    “ Question. Do you know whether or not the fence to close up the yard was in the written contract ?”
    “ Answer. I don’t know that it was particularly specified. . . . The written agreement specified the building and some part of the outside work. The outside work was all expressed, I am not certain whether in the written agreement or not; the entrance to basement story, water-closet, and the fence. . . . The items ordered August 20th, 1875, — some of them could have been used in the building. I don’t know whether any of it was or not. The posts were used for the fence. I think the other items of that date too. • Mr. Sener did not know what I used it for. I simply ordered it for that building. I can’t say that I told Sener this lumber was for the fence. I knew it.”
    Counsel for Pontz & Brothers requested the Court to charge:

      1. If the articles furnished August 20th, 1875, were for a fence, the verdict must be for the defendants.
    2. If the articles furnished August 20th, 1875, were for a fence, and the plaintiffs knew they were for that purpose, the verdict must be for the defendants.
    The Court below, Livingston, J., affirmed the first point, “ provided the jury find that plaintiffs knew they were for a fence when they sold them, and they were sold for that purpose;” affirmed the second point and charged the jury inter alia, as follows:
    “ They claim that the lien was not filed in time ; that the items furnished on August 20th, 1875, were not articles for which a lien could be entered, and that without them the lien is invalid ; is no lien, because the last items or articles were furnished more than six months prior to the entry of the lien, so that your inquiry is confined particularly to the articles furnished August 20th, 1875. If, from the evidence, you find that plaintiffs at the time they sold the articles of that date knew they were for a fence, and sold them for that purpose, then they would not be entitled to a lien for them, and all the other articles being furnished and delivered more than six months prior to filing the lien, plaintiffs cannot recover. You will remember and be guided by the testimony on this point. [If the lumber be furnished on the credit of a building, and delivered at the place of building, it is not necessary that the party furnishing it should prove that all or indeed any part of it was used in the building. It may have been used elsewhere, and his lien would be good; and if furnished for the building without any knowledge that part of it was to be used for outhouses or fencing, the lien would be good.] So that, if the whole lumber charged in the bill annexed to the claim or lien, the correctness of which is undisputed, was sold by plaintiffs on the credit of this building without any knowledge on their part that a portion of it was to be used for fencing only, their lien would be good .and they entitled to a verdict. . . . Buildings, as you know, are frequently built with balconies, porches, etc., requiring posts, railings, and palings. There is no evidence that this building was so erected, but could the Messrs. Sener, without notice or information, know that it was not to be so erected, or that the lumber bought August 20th, 1875, by the contractor to finish his contract concerning this building, was not to be used in or about the building for building purposes ? This is the question you are to determine. If you find from all the evidence that the plaintiffs knew, when this lumber was ordered by Basch, the contractor, and sold and furnished by them, that it was to be used for a fence only, and not in and about tbe building, then no lien could be entered for it, and all the other items or articles having been furnished more than six months prior to the filing of the lien, the lien would not be good, would be no lien, and the verdict should be for the defendants. But if you find from the evidence that the articles furnished August 20th, 1875, was such lumber as is and can be used in and about buildings for building purposes, and that plaintiffs at the time were told that it was to be used by the contractor in completing his job or contract for the erection of this- building, and did not know it was to be otherwise used, or used for fencing purposes merely, then the whole bill would be carried with the last item, and the lien being filed within six months after would be good, and your verdict should be for plaintiffs.”
    Counsel for Pontz & Brothers excepted to the answer to the first point and to the general charge.
    Verdict for the plaintiffs, September 28th, 1880, for $510.26, upon which judgment was subsequently entered.
    The defendants below then took a writ of error, assigning for error the answer to the first point, the portion of the charge in brackets, and that “the tendency of the whole charge was to mislead the jury.”

      William A. Atlee and B. F. Davis for plaintiffs in error.
    He who claims a lien must bring himself within the terms of the statute, and must show affirmatively everything necessary to that end : Odd Fellows’ Hall v. Masser, 12 Harris, 507 ; Yearsly v. Flanigen, 10 Harris, 489 ; Harlan v. Raud, 3 Casey, 511.
    The Court threw the burden of proof upon defendants to show that the plaintiffs were not within the statute. There is not a sentence in the charge which says that the plaintiffs must have furnished the lumber toward the erection of the building proper, whilst the one idea constantly presented to-the jury is that unless the plaintiffs knew positively that the material was furnished expressly for the fence they must recover: Washington Mutual Fire Insurance Company v. Rosenberger, 3 W. N. C., 16.

      W. A. Wilson and L. Ellmaker for the defendants in error.
    Yearsley v. Flanigan, 10 Harris, 489 ; Holden v. Winslow, 6 Harris, 160 ; McKelvey v. Jarvis, 6 Norris, 414 ; Powelton Coal Company v. McShain, 25 P. F. Smith, 328 ; Harlan v. Rand, 3 Casey, 511; Gaule v. Bilyeau, 1 Casey, 521 ; Singerly v. Doerr, 12 P. F. Smith, 9 ; Church v. Allison, 10 Barr, 413.
   Per Curiam:

We find no error in this record of which the plaintiff has any right to complain. It is well settled that if materials are supplied on the credit of a building in the course of construction and which could have been used, a lien may be filed though they never went into it at all. The charge, we think, as favorable to the plaintiff as he could have asked, and had. no tendency, as we can see, to mislead the jury.

Judgment affirmed.


text:
    May Term, 1880,
    No. 125.
    June 6th, 1881.
    Commonwealth versus Gable.
    1. The Court of Quarter Sessions has full power to regulate and control the execution of its own process, and may set aside a writ of restitution, issued after judgment and sentence on an indictment for forcible entry and detainer, where, under it improper parties have been dispossessed of the lands.
    2. Under the writ the sheriff is only authorized to dispossess the defendant against whom there has been judgment and sentence, and those claiming under him.
    Certiorari to the Court of Quarter Sessions of Northumberland County.

    In the Court below the defendant, John H. Gable, was indicted for forcible entry and detainer, the prosecutors being Jane Ilerron and Charles I). Herron, her husband, Elizabeth B. Jackson and John A. Jackson, her husband, and Charles J. Tower.
    The title to a certain tract of land in Mt. Carmel township, Northumberland County, was claimed by the prosecutors and by the Northumberland Coal Company, the latter maintaining possession from 1864 until March, 1875. By a ■surrender of the tenant of the Northumberland Coal Company at that date, the prosecutors obtained possession and commenced making improvements. On the 23d of November, 1875, the coal company, under a capias in an action of trespass, arrested the workmen in occupation, and while they were in the custody of the sheriff, John E. Rathbun, a vice-president and superintendent of the coal company, with the defendant and others in the employ of the company, entered and secured themselves in possession of the house and mines on the premises. The following day, or within a few days thereafter, the defendant and others tore down a barn on the premises in which the employés of the prosecutors had taken shelter. Rathbun and four others were indicted for forcible entry and detainer, and a verdict was found against them twice, but because of defects in the indictment new trials were granted. A true bill was found against the defendant, Gable, separately, November 16th, 1877, and on the 6th of August, 1878, he was arraigned and pleaded guilty in manner and form as indicted. August 7th, 1878, he was sentenced to pay a fine of one dollar, pay the costs of prosecution, and make restitution of the lands and tenements described. On the 8th of August' a writ of restitution was awarded to restore the possession of the premises to the prosecutors, and the same day the writ issued. The sheriff made' return of the writ as follows:
    “ August 13th, 1878, served personally on the persons in possession, and removed their goods, and gave possession to Robert M. Cummings, attorney for Jane Herron and Charles H. Herron, Elizabeth Jackson and John A. Jackson, and Charles J. Tower.”
    On the 16th of August the Northumberland Coal Company presented a petition setting forth “ that the said John H. Gable never was in possession of the said tract of land at any time, but that the possession of the same has been in the Northumberland Coal Company, through the tenants of the said company and their employés, since 1864, and that the arrangement between John H. Gable and the said R. M. Cummings, representing the prosecutors, was collusive between them to enable the said prosecutors to obtain possession of said tract of land by artifice and tricks.”
    It prayed “ that the service of the said writ of restitution be vacated and set aside, so far as it affects the possession of your petitioner and of John E. Rathbun, vice-president and superintendent of the said Northumberland Coal Company.” Oh the same day a rule upon the prosecutors was granted to show cause why the service of the writ of restitution should not be set aside and vacated.
    The Court below, Rockefeller, P. J., after hearing argument and depositions upon the rule, filed an opinion September 28th, 1878, holding as follows:
    “Isaac Lewis was in possession as tenant of the Northumberland Coal Company, and was turned out by the sheriff in pursuance of the writ of restitution. He was not there under the defendant, John H. Gable, and, as I have stated, I am of opinion that the sheriff could only restore the prosecutors to such possession as the defendant or any one under him had, if any. The plea of guilty admits that the prosecutors were in possession, and that John II. Gable forcibly turned them out, and they are entitled to be restored to the possession if the facts were that said Gable forcibly turned them out and took and held possession and kept them out. If he took no possession, or has none, then there is nothing to restore. I do not see how the other parties without a trial can be turned out or made to restore the possession which they obtained by their own acts. The service of the writ is set aside as to all persons except the defendant, John H. Gable, or those in possession under him.”
    To this ruling the Commonwealth excepted.
    On the back of the opinion the sheriff returned: “October 1st, 1878, removed the goods of Mr. Carmitchel and L. L. Kingsbury, tenants of Elizabeth B. Jackson and others, out of the house commonly called the Red House, and gave possession of the same and the stable and the mines to John H. Rathbun, agent for the Northumberland Coal Company, by the authority of this opinion.”
    On the 11th of November, 1878, on petition of the prosecutors, a rule was granted upon the sheriff and Rathbun to show cause why the proceedings of the sheriff on the opinion should not be set aside and a writ of re-restitution awarded, which rule the Court, July 16th, 1879, discharged.
    To this ruling the Commonwealth also excepted.
    A writ of certiorari was then taken by the Commonwealth, and it was assigned for error that—
    1. The Court erred in granting a rule to show cause why writ of restitution should not be set aside after the sentence, • execution, and return by the sheriff that he has delivered possession to the prosecutors.
    2. The Court erred in making a decree that the execution of the writ of restitution should be set aside as to the Northumberland Coal Company, the said company not being a party to the record.
    3. The Court erred in refusing to direct the sheriff to make re-restitution to the prosecutors, he having dispossessed them by using the opinion of the Court without any writ for that purpose, which was an unlawful act, and he being an officer of the Court, and claiming to be acting under authorized process issued by the Court, his unlawful act should have been corrected by reinstating the prosecutors who had been unlawfully ousted.

      Lewis Dewart, A. J. Dietrich, T. H. Purdy, and R. M. Cummings for plaintiff in error.
    On the pronouncing of the sentence the ease ends in the Court of Quarter Sessions, and there is no authority to revive it and again bring the defendant into Court after his discharge by a rule to show cause. If such a rule may be entertained, where is to be the end of such litigation, or who is to be responsible for costs after the defendant is discharged? — Commonwealth v. Mayloy, 7 P. F. Smith, 291 ; Schoeppe v. Commonwealth, 15 P. F. Smith, 57. When two or more persons are engaged in the commission of a crime, and one of them is convicted and sentenced to make restitution, the courts will not permit a partner in the crime to say that he was the principal, and the party convicted only an employe, and thus secure the very object for which the crime was committed: Bouvier’s Law Dictionary, 2 vol., p. . 282; 2 Bishop, 514, note. Any person who claims to hold against the execution of a writ of restitution must make his claim before or at the time of the execution of the writ in order that it may be certified to the proper court: Johnson v. Fullerton, 8 Wright, 466.

      Samuel Linn, W. H. M. Oram, and S. P. Wolverton for defendant in error.
    The English courts have held and frequently exercise the power to relieve if restitution shall have been illegally awarded or executed: 3 Bacon’s Abr., 260; 1 Russell on Crimes, 315.
   Per Curiam:

We can find no irregularity in these proceedings which have been brought up by writ of certiorari. That the Court below' had full power to regulate and control the execution of its own process cannot be doubted. That the sheriff was only authorized by his writ to put out the defendant, against whom there had been judgment and sentence on the indictment for forcible entry and detainer, and those claiming under him — certainly not those or any of them against whom the indictment was still pending — is equally clear. The writ does not bring up the evidence, and it is not competent for us to review the decision.

Proceedings affirmed.


text:
    May Term, 1881,
    No. 161.
    May 30th, 1881.
    Crawford versus Ritter.
    1. Where an alleged sale is attacked on the ground of fraud, very slight evidence of combination is sufficient to let in admissions by parties against each other.
    2. Where, therefore, in a suit against a constable for trespass in levying upon a horse as the property of the father of the alleged vendee, it was in evidence that the father had sold the horse to the vendor, made the arrangements for the purchase, had the management qf other personal property bought at the same time, sold some of it, and received the proceeds, and had possession of the horse and used him, declarations of the father, not in the presence of the son, tending to show that the horse really belonged to the father, were admissible.
    3. Nor was it error for the Court to charge that in order to complete the sale there must be a delivery of the property sold.
    Error to Court of Common Pleas of Lycoming County.

    Trespass de bonis asportatis by Joseph W. Crawford against William L. Ritter.
    The defendant, a constable, on the 25th of June, 1880, by virtue of an execution issued upon a judgment against Jonathan O. Crawford, levied upon a horse which it was alleged belonged to the plaintiff. Prior to the sale the plaintiff gave written notice to the defendant that he was the owner of the horse. The defendant, being indemnified, sold the animal July 10th, 1880.
    The horse had belonged to Jonathan O. Crawford, the father of the plaintiff. On the 7th of October, 1875, he, by-written agreement, sold it along with some real estate and other personalty to William C. Wilson.
    On the 18th of January, 1878, Wilson entered into a written agreement with the plaintiff, for the consideration of $1000, which set forth that “ the meaning of this agreement is to sell all the personal property bought of J. O. Crawford in agreement dated the seventh day of October, A.D. 1875.” The plaintiff claimed title under this agreement. The consideration for this sale was j>aid by the surrender of two promissory notes for $2000 made by Wilson and held by the plaintiff. These notes, dated October 7th, 1875, had been given in 1877, as was alleged by Jonathan O. Crawford, to the plaintiff as part payment of an indebtedness from the former to the latter originating in a firm transaction in which they were both partners.
    On the trial the plaintiff testified that the arrangements for the sale to him were made through his father, lie himself was at Shamokin, and did not see Wilson. His father had the management of fhe other personal property purchased under the article of agreement. When asked whether he, the plaintiff, got possession of this personal property, he replied: “ Nothing but the horse ; well, I don’t know, — I modify that; I think I did get possession of some other things, — some hay, and some things taken off the farm.”
    His father sold some of this personalty, and got the proceeds. His father had possession of the horse and put him out at service.
    The defendant’s counsel offered to prove by the defendant “ that at the barn, when he went to levy on the horse, J. O. Crawford claimed that he was not worth $300, thereby meaning to claim the benefit of the $300 law. But after reflecting he wished to see the writ, and then said it was the property of some other person when he discovered it was a writ such as it was, — summons in tort.”
    The offer was admitted, and an exception granted.
    Defendant’s counsel further offered to prove by Wilson “ that the contract for the sale of the personal property and the Heisel farm from himself to J. O. Crawford was made with J. Ü. Crawford, and that he (Wilson) didn’t know J. W. Crawford in the transaction at all; that the name of J. W. Crawford was used by J. O. Crawford for the purpose of preventing the property, that was to be sold in this way, from being levied upon by the creditors of J. O. Crawford ; that it was debated between Wilson and Crawford to know whose name should be used. A number of different names were suggested, and they finally — at J. O. Crawford’s own selection — settled upon the name of J. W. Crawford; that the witness on the stand didn’t then know, and didn’t learn that J. W. Crawford had any interest in the two notes of $1000 each, which form part of the consideration for the payment of the property sold; that the two notes did not constitute the whole of the consideration paid at that time to William O. Wilson, or that passed between Wilson and J. O. Crawford; that in addition to the two notes J.O. Crawford was to give to the witness, William C. Wilson, a piece of land known as the Bear Bottom Hollow, situated on the Loyalsoek, or one of its tributaries, and he was to allow him to cut timber on another tract of land to equal the sum of $300; that J. O. Crawford was still further indebted to William C. Wilson on account of the executorship of the estate of his deceased father, and also owed Wilson money on account of his mother’s estate, for which Wilson held twonotes; that a part of the consideration for this sale svas that Wilson was to release J. C. Crawford from this indebtedness ; that Crawford also agreed to have the Bear Bottom PIollow sold for taxes, so as to be able to make a clear title; that Wilson, in pursuance of this agreement, went on and began cutting on the land that Crawford said he mightcut $300 worth of timber from,and that Crawford notified him tostop, — that the attorneys in Williamsport were raising a fuss about it, and he had better wait until he could get it straightened up; that J. O. Crawford alone exercised ownership over the personal property thus sold under the article of agreement that the plaintiff has offered in evidence; that he told the witness repeatedly that his horse was his, and on several different occasions promised to give him the horse, because he was not able to carry out his part of the agreement in relation to his cutting timber, and getting title to the Bear Bottom Hollow tract of land ; that J. W. Crawford never exercised any ownership, and never took any possession whatever of any part of the personal property mentioned in this article of agreement that the plaintiff has offered in evidence ; that the same remained in possession of William C. Wilson, as it always had done prior to the sale, and that he never had any interview with J. W. Crawford in relation to it, and that all his transactions were with J. O. Crawford and not with J. W. Crawford, and that his whole arrangement on the part of J. O. Crawford was for the purpose of cheating and defrauding his creditors.”
    The offer was admitted under exception.
    The Court charged the jury inter alia as follows
    “ Nowin the sale of all personal property, it is necessary not only that the price be fixed, and that the thing to be sold be set apart or designated in some way, but to complete a sale there must be a delivery of the property sold. . . . If J. O. Crawford has acted for him, and J. W. Crawford is seeking to reap the benefits of any contracts made by his agent, he is bound by anything his agent did that induced the contract. He cannot reap the benefits of such contract and deny anything that the agent did to secure such contract. He must take them as they stand, with all their imperfections on their head. ... So if you should find, first, that there was no delivery of this property to any person authorized to receive it for J. W. Crawford, then there would be no complete sale, and the plaintiff would not be entitled to your verdict.”
    Exceptions were taken by plaintiff' to these portions of the charge.
    March 25th, 1881, the jury rendered a verdict for the defendant, on which judgment was subsequently entered.
    The plaintiff then took a writ of error, assigning for error the admission of testimony and the charge of the Court as above set forth.

      H. C. McCormick and F. H. McCormick for plaintiff in error.
    A large amount of totally irrelevant and improper evidence was admitted relating in the main to declarations of Jonathan O. Crawford in the absence of, and without the knowledge of, the plaintiff.
    When the horse came into the possession of the father, he was bailee, and his declarations of ownership are not evidence. Nor would his declarations as agent be evidence: Crist v. Kleber, 2 W. N. C., 158 ; Monocacy Bridge Company v. American Iron Bridge Manufacturing Company, 4 W. N. C., 277 ; Pennsylvania Railroad Company v. Titusville Plank Road Company, 21 P. F. Smith, 355 ; Hannay v. Stewart, 6 Watts, 489 ; Fawcett v. Bigley, 9 P. F. Smith, 411.
    Wilson was estopped by his written agreement from denying the ownership of the plaintiff: Tioga County v. South Creek Township, 25 P. F. Smith, 437 ; 1 Greenleaf on Evidence, sec. 207 ; Gest v. Espy, 2 Watts, 265 ; Barton v. Fetherolf, 3 Wr., 279.
    No delivery was necessary. It was not a question between the creditors of Wilson and the plaintiff: North v. Turner, 9 S. & R., 244 ; Dallam v. Fitler, 6 W. & S., 323 ; Waldron v. Haupt, 2 P. F. Smith, 408 ; Boyle v. Rankin, 10 Harris, 168.

      O. H. Reighard and A. D. Hower for defendant in error.
    The acts and declarations admitted were such as occurred during the agency and in the line of his authority: Pennsylvania Railroad Company v. Plank Road Company, 21 P. F. Smith, 355 ; Dick v. Cooper, 12 Harris, 217.
    These declarations were admissible as bearing on the bona fides of the transaction: McDowell v. Rissel, 1 Wr., 164 ; Heath v. Page, 13 P. F. Smith, 126 ; Confer v. McNeal, 24 P. F. Smith, 112; Bredin v. Bredin, 3 Barr, 81.
    As between vendor and vendee, a change of possession is not necessary, but when the rights of creditors intervene and fraud is alleged change of possession is necessary to remove the badge of fraud: Billingsley v. White, 9 P. F. Smith, 464 ; Garman v. Cooper, 22 P. F. Smith, 32.
   Per Curiam :

There was ample evidence to submit to the jury of actual fraud, — that while the horse was nominally the plaintiff’s the real owner was the father, against whom the execution was issued. He was held out as the agent of his son, was in the actual possession, and very slight evidence of combination is sufficient to let in evidence of admissions by the parties against each other. There was no error in the admission'of the testimony objected to. There was no error in the parts of the charge excepted to. If the plaintiff wished more particular instruction applicable to the facts of the case, he should have asked for them.

Judgment affirmed.


text:
    May Term, 1881,
    No. 125.
    May 9th, 1881.
    Appeal of John Wilson et al.

    1. Where an auditor, appointed to distribute the assigned estate of a husband, allowed the claim of the wife upon a note executed two days before the assignment, and found the facts to be that in 1843, thirty-four years earlier, the money of the wife, for which with its interest the note had been given, was paid to the husband in her presence upon their joint receipt, and he had invested it for her, and in 1848 had verbally agreed to be responsible for its payment, and that it was subsequently lost, the Court refused to reverse the decree of the court below confirming the report of the auditor.
    2. The joint receipt originally given, rebutted any presumption that the money was received by the husband in virtue of his marital rights.
    Appeal of John Wilson & Son, Russell & Longenecker, the First National Bank of Freeport, and James Harbison, from the decree of the Court of Common Pleas of Bedford County, confirming the report of the auditor appointed to make distribution of the assigned estate of Nathan H. Wright.
    Nathan H. Wright made an assignment for the benefit of his creditors of all his estate, real and personal, August 27th, 1877. His assets were sufficient to pay about thirty per cent, of his debts. On the 25th of August, two days before the assignment, he executed a judgment note payable one day after date to his wife, Sarah Ann Wright, for $1230.15.
    The auditor appointed to distribute the fund in the hands of the assignee found the facts concerning this note to be as follows: Nathan H. Wright and Sarah A. Donelly were married in June, 1843, and at this time she was a minor aged eighteen years. David Tussey, her guardian, had a small separate estate belonging to her. In the fall of 1843 Tussey paid the money of his ward, amounting to $335, to Wright in the presence of his wife, and they both signed a receipt for it. Wright loaned the money to his employer, Henry S. Spang, who died in 1845, having devised his property to his son, with a direction to pay his debts. In consequence of the failure of the son in 1850 the money was lost. Wright received the money in 1843 in trust for his wife and invested it for her, and in 1848 agreed in consideration that she would leave it invested with Spang, he would be responsible for its payment to her. He gave no written obligation for it until that of August 25th, 1877, but always considered it her money and that he held it for her. In 1868 or 1869 he also received $137, the proceeds of some real estate which belonged to her. These two items with the interest on them constituted the note in question.
    Wright testified: “ After the guardian went away, I told my wife that I would lend the money on interest, and it would bring her some interest. ... I never received this money as my own, never counted it mine. I received it for her. ... I loaned it for her. ... I always told my wife I would be responsible to her for this money ; she should never lose a dollar . . . would pay it myself; I would pay it with interest. . . . Before there had been any investment of this money to Spang or any appropriation of it, I had agreed to put it out for her.”
    Sarah A. Wright testified: “My husband received this money for me. He told me he had this money. He would put it on interest for me. He did it of his own free will. . . . lie had no right to use it as his own. I objected to leaving the money in the shape it was when we left that country. My husband said he would be responsible for it. He said I should have it with interest. He said it all the time after this.”
    Four other witnesses testified as to conversations with Wright between 1866 and 1874, in which he acknowledged having received the money as that of his wife, and promised to pay it to her.
    The auditor allowed the claim and directed its payment fro rata with the other debts of Wright. To this finding exceptions were taken by creditors which the court below, Hall, P. J., overruled.
    The decree of the Court was assigned as error.

      John Cessna and Russell & Longenecker for appellants.
    The payment to Wright by the guardian in 1843 was for his own use. If paid to him for his wife and loaned to Spang for her benefit and lost, his promise to be responsible was void for want of consideration and because not reduced to writing. The receipt by him of the securities is presumed to be a reduction to his possession: Moyer’s Appeal, 27 P. F. Smith, 482; Gray’s Estate, 1 Barr, 329 ; Johnston v. Johnston, 7 Casey, 450 ; Wesco’s Appeal, 2 P. F. Smith, 195 ; Gicker’s Admr. v. Martin, 14 Wr., 138 ; Gross v. Reddig, 9 Wr., 406.
    His promise in 1848 and afterwards, was simply the promise of one person to pay the debt of another, and not having been reduced to writing, was void. Prior to 1848 husband and wife were but one person in law, and could make no contract -with each other: Lehr v. Beaver, 8 W. & S., 102 ; Baer v. Baer, 9 Casey, 525 ; Stuckey v. Keefe, 2 Casey, 397.
    The wife was not entitled to interest during the life of her husband: Gochenaur’s Estate, 11 Harris, 460; Mann’s Appeal, 14 Wr., 375 ; Middleton v. Middleton, 1 Phila., 209.

      J. M. Reynolds for the appellee.
    The first position of appellants is not sustained by the evidence nor the finding of the auditor. The promise is in writing. The note given in 1877 is the promise evidenced in writing, and as to this no one but the husband could take advantage of it. He was a trustee: Moyer’s Appeal, 27 P. F. Smith, 485 ; Ziegler’s Appeal, 4 W. N. C., 454. There was a positive agreement to pay interest: Mellinger v. Bausman, 9 Wr., 529 ; Graybill v. Moyer, 9 Wr., 530.
   Per Curiam:

We entirely concur in the opinion of the learned auditor and the court below upon the facts reported by him. The joint receipt given by husband and wife for the money originally, rebutted any presumption that it was received by the husband in virtue of his marital rights, and this was confirmed by all the other testimony in the case.

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