author: Mr. Justice Green

text:
    Etter and Snyder versus Greenawalt.
    1. Where a person accepts a devise which is coupled with a direction by the testator that a sum certain shall bo paid by the devisee to a third party, he thereby becomes subject to a personal liability to pay said sum, which may be enforced against him in an action of debt instituted by said third party.
    2. The Statute of Limitations will, in such case, preclude recovery against the devisee where more than six years has elapsed since the death of the testator before suit is brought.
    3. Where the plaintiff in such case is, at the time of testator’s death, under coverture or other disability, he or she may institute suit and recover at any time within six years after the removal of the disability. ,
    June 17th 1881. Before Sharswood; C. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Frcmhlin county: Of May Term 1881, No. 187.
    Tiiis was an action of debt, brought February 2d 1880, by Susanna Etter and Nicholas Snyder and Eliza, his wife, in her right, against Henry Greenawalt. The narr. contained the usual money counts, and a special count, setting forth that by reason of the defendant,having accepted a devise under a clause of the will of Godfrey Greenawalt, deceased (quoted below), he became indebted to the plaintiffs, &c. Pleas, payment, payment with leave, and “ that defendant is not indebted to the plaintiffs in the manner charged,” and the Statute of Limitations.
    On the trial, before Rowe, P. J., the following facts appeared : Godfrey Greenawalt, the father of the plaintiffs, Mrs. Etter and Mrs. Snyder, and of the defendant, by his will, dated and proved in 1847, devised as follow-s:
    “ I do also devise to my said son Henry, my undivided half part of the piece of land in the same township (Hamilton), known as the Palmer tract, containing in all about forty-one acres, for which devise I will and direct that Henry shall pay in equal proportions' to my two married daughters Susannah Etter and Eliza Snyder (for their own separate and exclusive use), at at the rate of $20 per acre — the same to be paid in four equal annual installments, the first of which is to become due and payable at the expiration of five years after my decease.”
    Henry Greenawalt accepted the devise.
    Tiie plaintiff, Susannah Etter, is a widow, her husband having died in 1871. The plaintiff, Eliza Snyder, is still a married woman.
    The defendant alleged that he had paid $200 to each of the plaintiffs in annual installments according to the terms of the devise, and offered in evidence certain receipts alleged to have been signed by' the plaintiffs, by'their marks, therefor. The, plaintiffs admitted receipt of the $200, but alleged that it was, for a compromise in a collateral matter, and that they were ignorant of their rights under the will. The evidence on this subject was, however, weak. The defendant being unable to prove the execution of the receipts, they were, with one or two-exceptions, excluded.
    The defendant submitted the following point; “ The right of action is-this case not having accrued within six years next before the bringing of the same, the plaintiffs cannot recover.” The court reserved this point, and submitted the case to the jury on the question of payment.
    Verdict for the plaintiffs for $1,089.69. The court subsequently entered judgment on the reserved point for the defendant, non obstante veredicto. Eowb, P. J., filed the following opinion:
    “ On the trial the counsel for the defendant submitted this point: That the right of action in this case not having accrued, within six years next before the bringing of the same, the plaintiffs can not recover; which was reserved. The action is for a legacy, but not against an executor.
    “ Godfrey Greenawalt, by his will dated September 29th 1847, and probated December 6th 1847, devised to his son Heiiry (the defendant) a tract of land ‘for which latter devise, I will and direct that Henry shall pay in equal proportions to iny two married daughters, Susanna Etter and Eliza Snyder, for their own separate exclusive use, at the rate of $20 per acre, the same to be paid in four equal annual installments, the first due and payable at .the expiration of five years after my decease.’
    “ Henry Greenawalt was appointed executor of the will, and took out letters testamentary. He also immediately accepted the above devise aud took possession of the land.
    “ The plaintiffs lived in the same town with the testator and the devisee, knew of the death of their father and of the will recorded,, and within a few weeks after his death employed Joseph Chambers, Esq., attorney at law, to read the will and protect their interests. They lived in the county town, and knew the will was on record in the register’s office in that towm.
    “At the death of the testator both were covert. The husband of Mrs. Etter died more than six years before this action was brought; the husband of Mrs. Snyder is still alive.
    “Now, it is agreed that this is not a legacy charged on land, and it is also agreed that the fact that Henry Greenawalt the devisee happened to be also executor does not complicate the question.
    “We have then the simple case of a devise of land to A. with a direction that he pay B. a sum of money, and an acceptance of the land by A.
    “ By acceptance TIenry Greenawalt undertook to pay the legacies, which undertaking or assumpsit arose‘from the general implication, and intendment of the courts of judicature that every man hath engaged to perform what his duty or justice requires ’: Miltonberger v. Schlegel, 7 Barr 241. The foundation of the action is the acceptance of the devise and the implied promise which arises thereupon. It is therefore an action of debt grounded’on a contract, without specialty. But the contract is an implied one, and it is said that the statute of limitations is not a bar to an action of debt on an implied contract; even though if the action were assumpsit for the same cause, the statute would be pleadable: Richards v. Bickley, 13 S. & R. 399, is relied on, and the remarks of Mr. Justice Duncan give color to this contention, and it is thought it receives some support Railway Go. v. Moore, 14 P. F. Smith 89.
    “ But debt in simple contract lies where indebitatus assumpsit lies: Arch. N. P. 201; and actions of assumpsit are included in the statute. If one brings an action of assumpsit on an implied contract, the statute may be set up. May he, by electing debt, deprive the defendant of that benefit? In the Master, &c. v. Loder, 16 Queen’s Bench 745 (E. C. L. R. 779), the action was debt, but because assumpsit would lie for same cause, the statute was held a bur, in a case of implied contract. And at length in our own case of Wickersham v. Lee, 4 W. N. O. 44, it was held that it is the cause of action rather than the form of action which determines the applicability of the statute, and that the Statute of Limitations is a bar to an action of debt founded on an implied contract not begun within six years.
    “Wilson v. Towle, 19 N. H. 244, is said to hold that debt against a devisee of land to recover money charged thereon, is not an action grounded on any lending or contract not under seal: see U. S. Digest VIII, 839, pi. 1317; Angelí on Limitations §76. I have not the case, but no doubt the statute is not applicable where a legacy is charged on land.
    But it is contended that the statute does not apply to an action for a legacy, and I am referred to Thompson v. McGaw, 2 Watts 161; Dœbler v. Snaoeley, 5 Watts 225; Patterson v. Nichol, 6 Id. 379. These cases show that the statute is not pleadable in case of an ordinary action against cm executor for a legacy. This is because the executor is a trustee for the legatee by express trust. Now the relation between the devisee and the legatees in our case is not that of trustee and cestuis que trustent, but that of debtor and creditor: Cowden v. Oyster, 14 Wright at page 373. ‘Having taken the land at the valuation, they became debtors’ Or if there be any trust it is only an implied or constructive one which the statute will bar: 1 W. 271; 12 Wr. 518; 16 S. & R. 379; Ashhurst’s Appeal, 10 P. F. S. 290. It was hinted that there may be an implied condition that the devisee shall pay the money; but th,at would make the legacies a charge on the land, recoverable only in the orphans’ court, and not by this action.
    “ It is not hecaus'e the legacy is a legacy, or because the liability of the defendant arises upon a will, that it has been held the statute does not apply. For immediately that the trust is ended the statute begins to run: App v. Dreisbach, 2 Rawle 287, 304; Patterson v. Nichol, 6 W. 381; Young v. Cook, 30 Miss. 320, cited Angell on Lim. 90. And where the executor may be held at law, that is in some courts held sufficient to bar a claim for a legacy after six years: Smith v. Remington, 42 Barb. 75; Kane v. Bloodgood, 7 Johns. Ch. 90; 12 Am. Dec. 433; Souzer v. De Meyer, 2 Paige Ch. 577. Now all this shows that the statute would apply to a legacy, were it not set up by a trustee. In Thompson v. McGaw, four reasons are given why the plea of the statute to an action for a legacy cannot be interposed. 1st. Because debt for legacy is not grounded on any lending or contract; which, as applied to our case of a devisee, is not tenable, as we' have seen. 2d. Because an executor is a trustee, which is a valid reason — but the defendant is not an executor. 3d. Because the legatee may be ignorantofthe bequest, or absent in other states. But here the legatees knew of the will and lived in the same town, and with reasonable diligence might have known of the contents of the will. Besides, mere want of knowledge that one has money due another and that the statute is running, in the absence of concealment and fraud, is not enough: Downey v. Garard, 12 H. 52; Campbell v. Boggs, 12 Wr. 524; Rhine v. Evans, 16 P. F. S. 192; Barton v. Dickens, 12 Wr. 523. I think the fact'that the legatee was ignorant of his legacy, if it may be an answer to the plea of the statute in a-given case, ought not to prevent the setting np of the statute in every case. The fourth reason is that, if acquainted with the fact of the bequest, he is not bound to demand his legacy within the statutory period, and this reason is much insisted on in Patterson v. Nichol. But in the. case of a devisee who lias become liable to pay a legacy by acceptance of a devise, a demand is not necessary before suit: Zacharias v. Zacharias, 11 H. 455. And when a demand is necessary the plaintiff must make it in season, and cannot take advantage of his own fault: Campbell v. Boggs, 12 Wr. 526.)
    “ 1 think, on the whole, the statute of limitations is a bar to an action of debt for a legacy against a devisee of land simply.

      “ But I have still to consider whether the fact that Mrs. Snyder, one of the plaintiffs, was a feme covert during the whole period since the death of the testator, is an answer to the plea of the statute as to her. And I am of opinion that it is not.
    “In Maine, since the statute authorizing a married woman to sue as a feme sole, it is held that the disability of coverture is abrogated: Brown v. Cousens, 51 Maine 301; Angell on Lim. § 192, n. 1. The same is held in Texas : Thompson v. Craig, 24 Texas 582. ‘ The exception contained in the statute of
    limitations is to be regarded as inoperative so far as regards married women, they being no longer under any disability as to suing or defending actions.’ Now it has been said in several-cases, that in Pennsylvania, since the Act of 1848, a feme covert can maintain a suit in her own name alone. It was so ruled by Mr. Justice Burnside at Nisi Prius in Boileau v. Bute. And in Goodyear v. Rumbaugh, 1 Harris, 480, the Supreme Court agreed with him in this view. In Sheidle v. Weishlee, 4 H. 134, 138, Lewis, Prest. J. below, and perhaps the Supreme Court, on error, held the same opinion. On the other hand, it is said in Keeney v. Good, 9 H. 349, 356, and in Ritter v. Ritter, 7 Casey 396, 400, that the husband should be joinecL I do not think that the very point was presented for decision in any one of these cases ; for even in Ritter v. Ritter the decision goes no further than this-, that a married woman cannot, by her next friend, sue her husband. I do not see that the question is concluded by authority. On the cases I have cited, with Miller v. Miller, 8 Wr. 170, and the Act of 1850 (Purdon, 1007, pl. 20), and the Act of 1856 (Purdon, 1009, pl. 31), which furnish, so far as I know, all the materials at hand for a judgment, I find considerable difficulty in saying that a married woman may sue alone.

      “ If she is empowered to do so, then the case in Maine shows that she can no longer avail herself of the exception in,the statute. But if she must join her husband, still he is joined merely for conformity and is only a nominal plaintiff, cannot dissent to tlie use of ids name, and has no control over the action : Bowler v. Titus, 2 W. N. C. 184. If this is so as to the legal separate estate created by the Act of 1848, much more is it so as to the old equitable separate estate. And it is with the latter we have to do. For the testator died in 1847, and gave his money to his two married daughters, for their sole and separate use.
    “ Now in equity, a married woman is looked upon as to her separate personal property as a feme sole, and as acting without coercion: Reeves Dom. Rel. 3d Ed. 262 (*p. 166), 271, note 2. It is here said, she sues in the name of her husband, and herself, if ho do not refuse to have his name used; if he will not lend his name, she may sue by prochein ami. The reason is, that the opposite party may have security for costs : Lb. 271. But Mr. Daniel says (Daniel’s Ch. Pr. 3d Am. Ed. 1, 104, 105): In general, when the suit relates to the separate property of the wife it is necessary that the bill should bo filed in her name by her prochein ami.’ She may, in some circumstances, sue her husband; lb.; and Reeves Dom. Rel. 271; and even in her own name. Our courts proceed upon the principles .of equity, and when a wife sues to recover her equitable separate property, though in a common law form, and for conformity joints her husband, he would not be allowed to dissent.
    “ Then, the exception in the statute does not forbid her to sue for her separate property during coverture, does not require her to await the death of her husband: Angelí on Eim. § 195 ; and if she join him in the action, the defendant could not on that account plead the statute —for the recovery could not be for his-use- — though it is otherwise when the property is not her separate-estate: McDowell v. Potter, 8 Barr 189, 193.
    Seeing then that a wife, with respect to her equitable separate personal estate is treated as a feme sole; that if it is necessary to join the husband it is a mere formal thing; that the wife can sue during coverture; and that there is no real defect of capacity as there is in cases of infancy and lunacy, I next wish to point out the great change in the status of a married womafi with regard to her property since the 21 of James II., and the passage of our own act of limitations in 1713. Then all her personal property which she had before man’iage and all that accrued to her during coverture, and all the profits of her real estate, became her husband’s. Whilst covert, what had she to sue for at law ? The law gave everything to her husband, leaving her not enough even to pay costs. Her very existence was regarded as merged in his. Then, she could not recover her own personal property by action during coverture, but must await the death of her husband; because she must join him in the action, and then the defendant could plead the statute, even when the husband did not wish to reduce her property into possession : McDowell v. Potter, 8 Barr 189. Now, all this is changed.
    “ It is true that at that time she might have an equitable, separate estate. But in England it was only in coux’ts of equity she could enforce her rights in respect thereof, and the statute applied only to actions at law and not to suits in equity: Angell on Lim. § 26. Equity, however’, adojxted the analogy of the statute in similar cases, and no doubt, in a case of a simple contract debt, would have held a man barred after six years: Knox v. Gye, 5 L. R. H. of L. Cases, 656. And I think would have held a wife also barred, who sued for her separate estate, because she could sue at any time, and without her husband, or at least without his consent. Not being under any disability to sue in equity, why should the court give effect to the exception in the statute in her favor founded only on such disability f

    ‘‘ In 1713 we adopted the statute. We had no court of equity. The husband and wife joined in an action at law for the sepal’ate property of tlie wife, but the principles of equity governed. The recovery was for the use of the wife, nor can it be doubted that he would not have been allowed to conti’ol the action or dissent from the bringing of it. The court would have protected the wife’s right as fully as a court of equity. While, then, the action of debt, for example, by the wife for her separate property fell within the Act of 1713, within its terms and the mischief it was intended to remedy, her case was not in fact within the mischief intended to be guarded against by the exception to the act — for she was not in fact as to her separate property under any disability to sue. The statute of limitations is a statute of peace and repose — and a defendant ought not to be deprived of the benefit of it, by the mere technical need of joining a husband with his wife in an action at law. Aside from that technical legal requirement, the case, in Maine shows that Mrs. Snyder is not within the exception to the statute, and that the lapse of twenty-five years is a bar to her recovery. If that case is good law it is the disability to sue that the exception meant to cover in the case of a married woman, not her general disability from coverture — for in that state she is of course under her general disability. At the time the statute was passed, confined as it was to actions at lam, where separate estates were not recognizable, the disability to site and of coverture were the same.
    “ I am of opinion that the defendant’s point ought to have been affirmed.

      “ Let judgment be entered for the defendant notwithstanding the verdict.
    The plaintiffs took this writ, assigning for error, the entering judgment for defendant on the point reserved, non obstante veredicto.

      J. McD. Sharpe and Stenger & McKnight, for the plaintiffs in error. —
    There is no contract relation in fact between plaintiffs and defendant, and it is only where such relation exists that the Statute of Limitations applies. If any contract relation exists here it arises by operation of law, from the acceptance of the devise. The statute only applies to “ actions of debt grounded upon any lending or contract without specialty.” This action is grounded on the will, and is not within the scope of the statute. The will simply designated tire defendant as the paymaster of the legacy, and the law, not “ any contract without specialty,” makes him liable to pay, on accepting the devise: Wilson v. Towle, 19 N. H. 246; Richards v. Bickley, 13 S. & R. 395; Pease v. Howard, 14 Johns. 479.
    Suppose Henry Green await had not accepted the devise, he would not have been liable, but the devise would have fallen into the residue, aud the plaintiffs would have been paid their legacies by the executor. Thus the foundation of the claim is the will. The statute of limitations does not apply to a legacy or to a suit for a legacy : Summerville v. Holliday, 1 Watts 513; Thompson v. McGaw, 2 Watts 161; Dœbler v. Snavely, 5 Watts 255.
    But, in any event, the statute cannot apply to Mrs. Snyder, a married woman at the time the will took effect and ever since. The proviso in the statute excluding femes covert from its operation has never been repealed, and the theory of an implied . repeal, because since the Act of 1848, a feme covert may, in some cases, sue at law, is too argumentative and fine-spun to sweep away her statutory privilege. An infant may sue by prochein ami, but he is not thereby barred of his privilege.

      Kennedy & Stewart, for the defendant in error.
    This suit was brought more than twenty years after the right of action .accrued. We defended on the ground of actual payment in full, but by reason of the death of witnesses failed in our proof, and then fell back on the Statute of Limitations in aid of our meritorious defense.
    The foundation of the action is the contract of the defendant, on accepting the devise, to pay the legacy. It was optional on his part to accept or refuse the devise, but by accepting he assumed the debt.

      This is not an action for a legacy as such, for it is not against an executor, and the rule that the statute does not run against a legacy does not apply.
    Since the disability of married women to enforce their rights by suit has been removed by the Act of 1848, the reason of their exemption from the running of the statute is removed, and the exemption falls also: Castner v. Walrod, 38 Ill. 171; Brown v. Cousens, 51 Me. 301; Thompson v. Craig, 24 Texas, 582.
    October 3d 1881.
   Mr. Justice Green

delivered the opinion of the Court,

This was an action of debt brought against the defendant by his two sisters, one of whom was a widow and the other a married woman. The, right of action upon which the suit, was founded was an alleged liability of the defendant to pay to his sisters, the plaintiffs, a sum of money which he was directed by his father’s will to pay to them in consideration of a tract of land devised by the will to him. The language of the will as to the payment of the money, is, “for which devise, I will and direct that Henry shall pay in equal proportions to my two married daughters, Susannah Etter and Eliza Snyder (for their own separate and exclusive use), at the rate of twenty dollars per acre, the same to be paid in four equal annual installments, the first of which is to become due and payable at the expiration of five years after my decease.” The testator died in December 1847, and the action was not brought until 1880. The only question brought here is, as to the effect of the plea of the statute of limitations, which was sustained by the court below, as to both the plaintiffs. Mrs. Etter became discovert in February 1871 by the death of her husband. Mrs. Snyder is still covert and her husband has joined in the suit. The case was argued and decided in the court below, upon the concession, that this is not the case of a legacy charged on land, and that an action of debt was therefore the proper remedy. As the payment of the money to the sisters was apparently, under the , peculiar phraseology of the will, in part at least, the considerar tion of the devise to the defendant, we are not prepared to assent to the correctness of the concession. But that question is not before us, and therefore we forbear either its decision or its discussion. On the. general question of the application of the statute of limitations to the liability of the defendant, we concur with the learned court below in holding that the obligation of the defendant is subject to the operation of the act. By accepting the devise he agreed to pay the sum given to his sisters, according to the terms of the will. That .agreement is an implied contract without specialty, and is therefore within the letter of the Act of 1713. All the cases hold that when the devisee accepts • the land in such circumstances, he thereby agrees to pay the money which he is by the will directed to pay. j lie becomes subject to a personal liability to pay, and that too, whether the money is charged on the iand or not. Thus in Brandt’s Appeal, 8 Watts, on p. 202, we said : “ If the sons accepted the lands devised,'they became personally liable to pay the legacies, at the times, and in the payments, directed by the will: if not paid, the legatees could sue and recover them by levy and sale of any goods or lands of the devisees.” In Lobach’s Case, 6 Watts, 167, we held that the acceptance of a devise of land charged with the payment of a legacy, creates a personal liability for its payment on the part of the devisee. On p. 170, Kennedy, J., speaking of the effect of the a¿ceptance of the land by the devisees, said: “ This, perhaps, without more, ought to be considered sufficient evidence, in ordinary cases, to establish an agreement on the part of the devisees to take the lands devised to them upon the terms and conditions set forth in the will; and likewise of an engagement on their part to fulfill and perform them, whatever they may be.” See also Miltenberger v. Schlegel, 7 Barr on p. 243, and the cases there cited. Now an engagement, undertaking, or agreement to pay, is essentially a contract to pay. Such certainly is its status in legal contemplation. The law recognizes and enforces the obligation, and it can only do so upou the footing of a contract. The terms of sncli contracts as the present are found in the will, and the obligation to comply with those terms is implied from the acceptance of the devise. We do not consider it is any reply to the plea of the statute, to sa.y that this is an action for a legacy, and in such cases the statute is not a bar. That is true in the ordinary actions for legacies against executors, and the reason is that the liability of an executor to pay a legacy is not grounded upon any lending or contract. He is a trustee wdio is charged by the will with the performance of the duty of paying legacies, and against that form of obligation the statute of limitations is no bar. The case of Thompson v. McGaw, 2 Watts, 163, cited for the plaintiffs, is decided upon that very ground. We are therefore of opinion that the plea of the statute is a good bar to the cause of action set up in the present case. As Mrs. Etter was sui juris ■ more than six years before suit brought the defence was good as to her.

But the case of Mrs. Snyder stands upon a different footing. She was a married woman at all times since her legacy became due, and she is still married. The learned judge of the court below thought that she could not take advantage of the exception in favor of married women in the Act of 1713, and that the plea of the statute was a good bar to her claim also. His reasoning is certainly very forcible if the proposition were as to how the law ought to be in such cases. But we must confront the positive terms of a statute directly and literally applicable to the case, and here we consider there is no alternative. The language of the third section of the Act of 1713 is most explicit, and it provides in express terms that several classes of persons under disabilities are not barred by the statute until six years after they have recovered their ability. These persons are, those who are “ within the age of twenty-years, feme covert, non compos mentis, imprisoned or beyond the sea.” The privilege of freedom from the liability to the statute is common to them all. No one of the classes is more or less entitled to the exemption of the third section than any other. This statutory exemption has never been repealed expressly or bjr implication. It is the law of the Commonwealth at this day, and we must respect it. The plaintiff, Mrs. Snyder, comes directly within its terms and is entitled to its benefits. As to her, therefore, the plea of the Statute of Limitations is no bar and it is overruled.

The judgment in favor of the defendant as against the plaintiff, Susannah Etter, is affirmed. The judgment in favor of the defendant as against the plaintiffs, Nicholas Snyder and Eliza his wife, in right of the said Eliza, is reversed, and as to them a writ of venire facias de novo is awarded.


source: Caselaw Access Project

author: Chief Justice Sharswood

license: Public Domain

text:
    Clow, to use, etc., versus The Derby Coal Co., et al.
    1. Where a creditor has the means of- satisfaction from the property of the principal in his power and fails to avail himself of them, the surety-will be discharged.
    3. A coal company liad given a mortgage upon its lands for $150,000, and had also incurred certain flouting indebtedness. To accommodate the company, A. agreed to advance the money to pay oil said mortgage and indebtness, on the execution to him of a new mortgage upon said lands for $350,000. The latter mortgage was accordingly executed, but was not recorded. And A. having advanced the necessary sum, the mortgage for $150,000 was put under his control but was not marked satisfied of record. B. and O., stockholders in the coal company, undertook in writing to afford A. the fullest protection for payment of his $350,000 mortgage. D., who was also a stockholder, afterward recovered a judgment against the company. From this judgment the company took a writ of error giving a bond, together with B., C., E. and E. (the two latter not being stockholders) whereby the obligors bound themselves jointly and severally to pay to D. the amount of his judgment in case the said writ of error was not successfully prosecuted. A. afterwards recorded his $350,000 mortgage, and marked the $150,000 mortgage satisfied of record. He at the same time, instituted proceedings on the former mortgage, upon, which lie obtained judgment. Subsequently the writ of error upon D.’s judgment was dismissed, and A. thereupon purchased the said judgment, and had it assigned to him. Afterwards A. issued a levari facias upon his judgment on the $250,000 mortgage,-under which the coal company’s land was sold to him for $85,000 and a special return made that A. was entitled, by virtue of his judgment on said mortgage, to the whole of that sum. Exceptions to this return were filed by (3., who claimed, that a portion of D.’s judgment belonged to him, by virtue of an assignment prior to that of A., and that said judgment was prior in lien to the $250,000 mortgage, and therefore entitled to participate in-the fund. A sum equal to the portion of D.’s judgment claimed by G. was thereupon paid into court, by A. and an issue was awarded between G. and A., to determine the questions raised by the exceptions, and also whether G. was entitled to any part of D.’s judgment. The issue resulted in a verdict for A., and the amount paid by him into court; was accordingly returned to him. In an action subsequently brought by A. in D.’s name against the coal company, B.. C., E. and F. jointly on their joint and several bond, wherein theplaintiff sought to recover the amount of D.’s judgment, — Held, that A., having had a clear right- as owner of D.’s judgment to participate in the fund produced by the sheriff’s sale under the mortgage, and having neglected to avail himself of that opportunity, was now precluded in equity, from recovering against the sureties on the bond in suit. Held, further, that the verdict rendered in the issue between A. and G., to determine the questions raised by G.’s exception, was not conclusive as to said sureties, who were not parties to said issue. Held, further, that as far as E. and F. were concerned, the agreement of B. & O. to give A. the fullest possible protection for liis $250,000 mortgage, and the fact that D. was also a stockholder in tile company, did,not raise any countervailing equity which won hi make E. and F. liable on the bond in suit, notwithstanding A.’s negligence. Held, therefore that A., having sued all the parties on. said bond jointly, and some of them having a valid defense, all the defendants were entitled to judgment,
    8. The satisfaction of the $150,000 mortgage was probably entered by A. under the mistaken impression that by reason of the then pending writ of error, D.’s judgment had lost its lien. This was not, however, such a mistake as a court of equity will interpose to rectify as against sureties who have at- least an equal equity.
    June 17th 1881. Before Stiarswood, O. J\, Mekour, Gordon, Paxson, Trunkey, Btkrrett and Green, JJ.
    Error to the Oonrt of Common Pleas of Centre county: Of May Term 1881, No. 56. '
    Debt, by R. E. Clow to the use of Ynocertcio Casanova against The Derby Coal Company of Pennsylvania, Antonio M. Soteldo, John Anderson, Andrew G. Curtin and William A. Wallace, upon a joint and several bond given by defendants to plaintiff, conditioned for the payment to plaintiff of the debt, interest and costs in the suit of E. F. Clow v. The Derby Coal Company upon failure of said company to prosecute successfully a writ of error to the Supreme Court of the United States taken by it from a judgment obtained against it in the said suit.
    On the trial, before Mayer, P. J., the following facts appeared : On October 1st 1872, the Derby Coal Company executed to Ynocencio Casanova a mortgage for $250,000 upon certain lands owned by it in Centre and Clearfield counties. This mortgage was not recorded until March 17th 1873. Immediately after said recording, the interest being unpaid, Casanova instituted proceedings in Clearfield county upon said mortgage, and on November 21st 1874, recovered a judgment against the company thereon for $285,822.12.
    On December 4th 1872, E. E. Clow recovered a judgment for the sum of $29,961.03 against the said company in the Circuit Court of the United States for the Western District of Pennsylvania. On February 10th 1873, a writ of error was taken to this judgment by the company to the Supreme Court of the United States, the bond in suit being at the same time filed in compliance with the provisions of the Kevised Statutes of the United States. On October 13th 1874, the Supreme Court of the United States, having heard argument in the cause, dismissed the writ of error. On December 5th 1874, the judgment in the cause was purchased by Casanova and was marked assigned to his use. On December 8th 1874, an assignment of $8,600 of said judgment by Clow to one A. C. Finney, bearing date December 4th 1872, was filed in the cause.
    On January 15th 1875, CasanoYa caused a writ of levari facias to be issued upon his judgment in Clearfield county on the mortgage of October 1st 1872, by virtue of which all the mortgaged premises in Centre and Clearfield counties were sold on March 15th 1875, at a judicial sale. Casanova, became himself the purchaser for the price or sum of $85,000. The sheriff made a special return to the effect that Casanova as holder of the judgment upon the mortgage of October 1st 1872, was entitled to the whole proceeds of the sale, and that receipts had accordingly been exchanged with him for the whole of said proceeds. A sheriff’s deed to Casanova was also presented for acknowledgment. Exceptions were filed by A. C. Finney both to the special return and to the acknowledgment, delivery and recording of the deed on the grounds: (1) That the Clow judgment was a prior lien to Casanova’s mortgage upon the properties sold. (2) That therefore the sheriff, had, to the extent of that judgment, no right to make the special return; and, (3) That the sheriff had notice that he would be ruled to bring into court enough of the proceeds of said sale to satisfy that portion of said judgment owned by A. C. Finney. The exceptions to the acknowledgment, delivery and recording of the sheriff’s deed to Casanova were dismissed, and said deed was the same day acknowledged, delivered and recorded. Casanova was, however, ordered to pay the sum of $11,000 into court, and said sum having been placed at interest an issue was awarded between Finney as plaintiff and Casanova as defendant to try: (1) "Whether Finney was entitled to any part of the Clow judgment. (2) Whether said judgment was a prior lien to Casanova's mortgage of October 1st 1872 ; and, (3) Whether said judgment was entitled to any of the proceeds of the sale under said mortgage.
    Meantime certain proceedings had been instituted by Finney in the Circuit Court of tbe United States to ñx bis rights in the judgment of Clow v. Derby Coal Company. These culminated in the following decree, which was entered in said suit on January 15 th 1876.

      “ It is adjudged and decreed that "the assignment by R. F. Clow to A. O. íinney, dated December 4th 1872, of $8,600 of the judgment obtained by him against the Derby Coal Company — being prior in date to the assignment to Y. Casanova, dated December 5th 1874 — is also prior in equity; that any money paid or applicable to said judgment be appropriated to the satisfaction of the amount so assigned to said Finney, according to the tenor of his assignment, before any part thereof is applied to tbe interest of said Casanova therein as aforesaid; and that a copy of this decree be entered on the record of said judgment.”
    Casanova thereupon purchased from Finney all bis rights in said judgment and took an assignment thereof from him. On the trial of the issue in Clearfield county between Finney and Casanova a verdict was rendered for defendant, and on May 30th 1876, the $11,000 deposited by Casanova was by order of court repaid to him.
    The present suit was instituted on August 25th 1875.
    Plaintiff made tbe following offer of evidence: “ A certified copy of a mortgage dated the 15th day of October 1869 of the Derby Coal Com pany of Pennsylvania to Allen 1Toy, in tbe sum of $150,000. To be followed by proof that that mortgage was entered of record on or about the 15th day of October 1869, and was afterwards carried into and made part of the mortgage of the 5th day of October 1872, of two hundred and fifty thousand dollars, already offered in evidence; to be followed also with proof that at the time John Anderson and some of the other defendants were stockholders of the Derby Coal Company of Pennsylvania, and that the defendants subsequently accepted the proposition of Mr. Casanova to furnish the money to pay off all the Allen Hoy mortgage and floating indebtedness of the Derby Coal Company, for which he was to receive the mortgage of the 5th of October 1872; that that proposition was accepted by the Derby Coal Company — Mr. Anderson and Mr. Soteldo being stockholders thereof; that a scire facias had issued out of the Common Pleas of Clearfield county, to No. 326, January Term 1873, in the name of Allen Hoy, Esq., Trustee, &c., against the Derby Coal Company of Pennsylvania; and that an action of “debt” was commenced in the same court, to No. 325, January Term 1873, in the name of Tnocencio Casanova as the holder and the- owner of the bonds, and the Allen Hoy mortgage as his security, and that the same continued and remained of record pvior to the time that Clow obtained his judgment, and up until after the filing of the bond upon which this suit was brought, and that Mr. Casanova -was advised by the same defendants that lie could, with safety, permit satisfaction to be entered on the Allen Hoy mortgage and bonds, and that he did so, upon being assured by the defendants that he was fully protected by the giviug of the bond upon which this suit was brought; to be followed with other evidence to show that John Anderson, A. M. Soteldo, A. Gf. Curtin and William A. Wallace have recognized the rights of Mr. Casanova as the owner and holder of the Allen Hoy bonds and mortgage; that Anderson and Soteldo, as stockholders of the Derby Coal Company, agreed and accepted the proposition in writing from Mr. Casanova, to give him the fullest protection possible, for the payment of the two hundred and fifty thousand dollar mortgage, bond and interest, and that Clow was a stockholder of the'Derby Coal Company, and had notice of the mortgage of the 1st of October 1872. This offer is made for the purpose of showing that the distribution made in Clear-field county was rightfully made, and for any other purpose for which it may be evidence, as to showing the equities and rights of the parties in court to the fund as distributed in Clearfield county.
    Objected to by defendants as incompetent and irrelevant, and also because said mortgage to Allen Hoy was marked satisfied of-record on March 18th 1873, by the plaintiff, and thenceforth ceased to be a lien. Objection sustained and evidence rejected. Exception. (Third assignment of error.)
    The court directed a verdict for defendants. Yerdict and judgment accordingly, whereupon plaintiff took this writ, assigning for error the rejection of his offer of evidence and the instruction of the court to the jury to find for defendants.

      David L. Krebs (with whom -was Adam Doy), for the plaintiff in error.
    The proceedings distributing the proceeds of the Bale of tlie real estate under plaintiff’s mortgage, including, inter alia, tlie sheriff’s 'special return and the feigned issue, distinctly decided that the Clow judgment was not a prior lien to the mortgage in suit, and neither was entitled to nor did share in the fund. This adjudication cannot now be attacked collaterally Yerkes’s Appeal, 8 W. & S. 225 ; Noble v. Cope’s Adms. 14 Wr. 18 ; Gratz v. Bank, 17 S. & R. 278; Finnel v. Brew, 31 P. F. Smith 366 ; Finney’s Appeal 3 Barr 312; Mather v. McMichael, 1 Harris 302; In re Sheriff Bastían, 9 Norris 472; Franklin Township v. Osler, 10 Norris 160. Sale and receipt of money by a sheriff are not, per se, a satisfaction of a particular incumbrance, though the lien of such incumbrance may be extinguished : Bank v. Winger, 1 Rawle 301; McDevitt’s Appeal, 30 Smith 376. The equities of the parties will be duly regarded and tli'eir interests preserved: Selden’s Appeal, 24 P. F. Smith 323; Rice’s Appeal, 29 Smith 182; Erb’s Appeal, 2 P. & W. 296; Himes v. Barnitz, 8 Watts 39; Worrall’s Appeal, 5 Wright 350.
    Even if plaintiff was in fardt in not having a portion of the proceeds of the sale under his mortgage appropriated to the Clow judgment, this isa point of which defendants cannot take advantage to relieve themselves from liability in this suit, because it was on account of their representations as to the validity of the bond in suit that plaintiff satisfied the Hoy mortgage, which was an undoubted first lien. Actual payment does not discharge a judgment in equity if justice requires the parties in interest to be restrained from insisting on their legal rights : Fleming v. Beaver, 2 Rawle 129; Lathrop & Dale’s Appeal, 1 Barr 518 ; Morris v. Oakford, 9 Barr 498.
    Whether or not the act of the creditor complained of works a discharge of the surety in any case is determined by the effect that act may have on the surety’s increased or diminished liability. If the act or contract of the creditor increases the liability of the surety, it operates as a discharge of the surety, either entirely or pro tanto, according to the Circumstances of each case: Schock v. Miller, 10 Barr 401; Neff’s Appeal, 9 W. & S. 36; Holt v. Bodey, 6 Harris 207; Wharton v. Duncan, 2 Norris 40.0
    Here the circumstances reveal no adequate cause for such discharge. The defendants being stockholders in the company it was to their interest to have the Hoy mortgage satisfied, and they cannot now escape liability on a bond, the validity of which they represented to plaintiff as sufficient ground for entering that satisfaction 'for their benefit: McCullough v. Wilson, 9 Harris 436; Diamond Coal Co. v. Fisher, 7 Harris 272 ; Wilkins v. Anderson, 1 Jones 402. Before defendants can disclaim liability they must show that their right of substitution to the Clow judgment is superior in equity to plaintiff’s: Erb’s Appeal, 2 P. & W. 296; Goswiler's Appeal, 3 P. & W. 200; McGinnis’ Appeal, 4 Harris 445; Ziegler v. Long, 2 Watts 206. Their action here clearly precludes them from setting up such claims. A new trial should not be awarded but judgment be entered for plaintiff: Stephens v. Cowan, 6 Watts 514; Mosher v. Small, 5 Barr 224. .

      G. R. Barrett and Samuel Linn (with whom were Beaver and Gephart), for defendants in error.
    The sale of the property of the company under plaintiff’s mortgage satisfied the Clow judgment. The law appropriated the proceeds to the liens as they stood at the time of sale according to their priority. If Clow had still retained his judgment, plaintiff could not have appropriated the proceeds of sale to his mortgage excluding the first lien : Fleming v. Beaver, 2 Rawle 128; Selden’s Appeal, 24 P. F. Smith 327 ; Kohl v. Harting, 8 Watts 329 ; Hepburn v. Snyder, 3 Barr 72; Talmage v. Burlingame, 9 Barr 21; Bellas v. Vanderslice, 8 S. & R. 452; Schuylkill v. Macalester, 6 W. & S. 149. The verdict of the jury in the feigned issue between plaintiff and Finney on this point could not bind defendants, who were not parties thereto: Morrison v. Mullin, 10 Casey 18; Taylor v. Cornelius, 10 P. F. Smith 198; Giltinan v. Strong, 14 P. F. Smith 245; Wible v. Wible, 1 Grant 409; Smith v. Reiff, 8 Harris 364; Shaw’s Appeal, 10 Wright 407; Housekeeper’s Appeal, 13 Wright 141. A feigned issue must be confined to facts: Shutzer v. Herr, 7 Harris 34; Christophers v. Selden, 4 Casey 165; Russel v. Reed, 3 Casey 166. And is only conclusive as to facts: Garrison’s Appeal, 2 Wright 531; Barrett’s Appeal, 21 P. F. Smith 317; Hoxworth v. Miller, 7 Barr 458; Tomb’s Appeal, 9 Barr 61; Martin v. Gernandt, 7 Harris 124. In the present case no facts were involved in the issue. Even if defendants were concluded there are such evident marks of collusion between the plaintiff and the company as to entitle defendants, who are sureties of the company, to inquire collaterally into the proceedings: Postens v. Posteas, 3 W. & S. 135 ; Sheetz v. Hanbest, 31 P. F. Smith 100 ; Dougherty’s Estate, 9 W. & S. 189; Lewis v. Rogers, 4 Harris 18; Thompson’s Appeal, 7 P. F. Smith 175; Clark v. Douglass, 12 P. F. Smith 408; Yaple v. Titus, 5 Wright 195. Plaintiff’s act in attempting to postpone the first lien, viz.: the Clow judgment, to that of his mortgage released the sureties on the bond in suit: Neff’s Appeal, 9 W. & S. 36; Holt v. Bodey, 6 Harris 207; Wharton v. Duncan, 2 Norris 40.
    June 22d 1881.
   Chief Justice Sharswood

delivered the opinion of the court,

This was a joint action against the defendants upon a joint and several bond. The plaintiff might have instituted a several action against each, but as it stands he must recover against all or none. Curtin and Wallace were sureties. It is alleged that the others were stockholders of the Derby Coal Company, and what the equities of the use plaintiff were or would have been against them under the offer of evidence made in the court below it is unnecessary to inquire. The plaintiff claimed to recover against all the defendants. The question then is, had he a right to recover against those of the defendants conceded to bo sureties — whatever may be the case as to the others. Clow, the legal plaintiff in this suit, which is marked to the use of Casanova, had recovered a judgment against the Derby Coal Company in the Circuit Court of the United States of the western district. Upon this judgment a writ of error was taken out of the Supreme Court of the United States, and to procure a supersedeas of execution the bond in suit was executed by the defendants. The writ of error was dismissed and the bond became absolute. Casanova had made a contract with the Derby Coal Company, — and he offers to prove that two of the defendants were parties and assenting thereto, — by which he was to advance a certain amount of money to the company, from which certain bonds secured by a mortgage to Allen Hoy, trustee, were to be extinguished, and a new mortgage given to him. In pursuance of this arrangement satisfaction was actually entered on. the Allen Hoy mortgage, and the new mortgage given. The legal effect of this was that the Clow judgment became the first lien upon the lands of the company. Proceedings were instituted upon the second mortgage, and a sheriff’s sale had, the proceeds of which were appropriated to that mortgage — no claim having been made on the Clow judgment. In point of fact Casanova bad purchased the Clow judgment, and was the owner of the same. An issue was awarded between him and one Finney to try the right of the latter to a part of that judgment, and a verdiet rendered in favor of Finney. It is agreed that Casanova also purchased his right. This was a proceeding collateral to the question of distribution, and could have no legal eonclusiveness except as between the parties to it. The question then is resolved into this — whether Casanova, as owner of the Clow judgment, having had a clear right to payment out of the fund raised by the sheriff’s sale, and having neglected to avail himself of it, is not precluded in equity from recovering against the sureties on the bond in suit. If the creditor has the means of satisfaction from the property of the principal in his power and fails to avail himself of it, the surety is discharged. The plaintiff concedes this, but sets up a countervailing equity which lie contends overcomes it. It is comprised in bis offer of evidence which was rejected by the learned court below, which re? jection forms the subject of complaint in the third assignment of error. In substance be contends that under the circumstancés be is entitled to have the satisfaction of the Hoy mortgage set aside or disregarded, So as to re-establish the priority of the lien of that mortgage — and to appropriate all the proceeds of the sale on the second mortgage towards payment of it. No fraud is alleged' — no mistake of such a character as would justify tlie interference of a court of equity. It is indeed probable that the Hoy mortgage was satisfied upon the mistaken idea that the Clow judgment had lost its lien by’the writ of error to the supreme court. It would have been wiser if' Casanova had been advised to take an assignment of the Hoy mortgage, instead of having it satisfied of record. This is not such a mistake, however, as a court of equity would interpose to rectify as against sureties who have at least an equal equity. "W hen satisfaction was entered on the Hoy mortgage, it was the intention of Casa^ nova to extinguish it. It is true he alleges and offered-to prove, that Anderson and Soteldo, two of tlio obligors, were stockholders of the Derby Coal Company, and agreed and accepted tlie proposition in writing from him, to give him the fullest protection possible for the payment of the second mortgage, and that Clow was also a stockholder, and had notice of that mortgage. But no offer was made to show that Curtin and Wallace had made any such agreement, or even had knowledge of it. No countervailing equity, therefore, was shown as against them. We think that the learned court below were perfectly right in rejecting the evidence offered, and directing a verdict for the defendants.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Howard et al. versus McLaughlin.
    A., having obtained a .judgment before a justice of the peace against B., of the firm of B. & 0., issued an attachment execution thereon against D., who was indebted to the firm. Judgment was entered in favor of A. for half the amount of D.’s indebtedness, that sum being fixed by the justice as the amount belonging to B. This amount was then paid by D. to A. O. had no notic^of these proceedings and gave no assent thereto, but did not deny that he had knowiedge'thereof. The firm B. & O. after-wards incurred indebtedness to E., who, having reduced his claim to judgment, also issued an attachment execution against D. D. paid onchalf his indebtedness to the firm of B. & C. to E., but defended as to the residue on the ground that he had already paid the sum to A. Held, conceding the irregularity of the attachment procedings by A. against D. as garnishee before the justice of the peace, that nevertheless said justice lnid jurisdiction of the case, that a judgment having been entered therein by him which was not objected to by B., C. or D., the same was conclusive as to B., and that therefore the firm of B. & C. was in the present proceedings entitled to judgment.
    June 20th 1881. Before Siiabswood, O. J., Meroub, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Cameron county: Of May Term 1881, No. 177.
    Attachment execution by Stephen McLaughlin against-C B. & W. Howard, garnishees of Miles & Bell. The attachment was issued upon a judgment obtained August 13th 1877, by the plaintiff against the said Miles & Bell. The debt, on which the judgment was recovered, was contracted July 15th 1877.
    The garnishees filed an answer to interrogatories, and the case was, by agreement, tried before Williams, P. J., without a jury. He found the facts to be substantially as follows : On May 28th 1877, the above named garnishees were indebted to Miles & Bell, a firm consisting of J. L). Bell and P. Miles, in the sum of $112.84. One Fink, who had obtained a judgment before a justice of the peace against J. D. Bell, of .the firm of Milos & Bell, issued an attachment execution thereon against the above named garnishees, and on May 28th 1877, judgment was rendered by the 'said justice of the peace against them for $56.42. This sum was arrived at by dividing the above mentioned indebtedness of the garnishees to the firm of Miles & Bell into two equal parts and treating one of these parts as belonging to J. I). Bell. This judgment was paid by-the garnishees before the attachment in this case was served. P. Miles, the other member of the firm of Miles & Bell was not served with notice of this attachment issued by the justice, and did not assent to the appropriation of the partnership funds to the payment'of the separate debt of J. D. Bell. '
    The garnishees, in their answer in this case, admitted that they owed the remaining half of said indebtedness to Miles & Bell ($56.42), and they paid the same to the plaintiff, McLaughlin, before the trial of this attachment.
    Upon these facts, the learned judge found, as a matter of law, as follows: “That the debt of $112.84 due from W. & C. B. Howard to Miles & Bell belonged -to the firm of Miles & Bell. That Fink, the separate creditor of J. D. Bell, was only entitled to reach by execution process the resulting interest of his debtor in the partnership effects, after the debts of the partnership were paid.
    “ That the justice who rendered judgment for $56.42 against' W. & O. B. Tíoward, garnishees of J. D. Bell, exceeded liis powers in thus attempting to adjust the accounts of the firm and ascertain the interest of the separate partner's. That such judgment, rendered without notice-to the other member of the firm, and paid without his knowledge or consent, does not bind the firm or their creditors.
    ££ That the debt due by W. & C. B. Howard to Miles & Bell remaining unpaid, was liable to attachment by the plaintiff, in this case, and the payment of the erroneous judgment in, favor of Fink discharges no part of said debt.
    ££ That the plaintiff is entitled to judgment upon the answers of the garnishees and proof in this case for the sum in their hands ($56.42) less the costs of this attachment.”
    Exceptions filed to the above decision were overruled by the court, and judgment was entered against the garnishees for $56.42. The garnishees thereupon took this writ of error, assigning for error the overruling of the exceptions and the entering of judgment.

      Newton (Green with him), for the plaintiff in error.
    The indebtedness of Miles & Bell to the plaintiff was not incurred until after the recovery and payment of Pink’s judgment, before the justice of the peace, against O. B. & W. Howard, as garnishees. McLaughlin, therefore, was not prejudiced thereby : Hauer’s Appeal, 5 W. & S. 473.
    But even if that judgment had been voidable by Miles ¡fe Bell, or by the garnishees, on the ground stated by the learned judge in the court below, it was not void, and they did not object. The justice having had jurisdiction, his judgment cannot be attacked collaterally by a stranger in this proceeding : Bond v. Gardiner, 4 Binney 269 ; Baird v. Campbell, 4 W. & S. 191; Sloan v. McKinstry, 6 Harris 120 ; Kase v. Best, 3 Harris 101; Lewis v. Rogers, 4 Harris 18; Billings v. Russell, 11 Id. 189 ; Drexel’s Appeal, 6 Barr 272; Wilkinson’,s Appeal, 15 R. F. Smith 189.
    (No counsel appeared contra and no paper book was furnished.)
    October 3d 1881.
   Mr. Justice Paxson

delivered the opinion of the court,

It is conceded that the plaintiffs, who were the garnishees below, had at one time in their hands the sum of $112.84 due the firm of Miles & Bell, and that they paid over one-half of this sum to the plaintiffs in this attachment before the trial of the case below : the other half of said sum was paid upon a judgment recovered in a prior attachment before a justice of the peace, issued by one Fink against J. D. Bell as defendant and the plaintiffs in error as garnishees.

The only question in this case is whether payment of the judgment recovered'in the Fink attachment was valid.

It was contended by McLaughlin, the attaching creditor below, that said payment was invalid as against him for the reason that the attachment before the justice was against one only of the members of the firm of Miles & Bell; that the justice had no right in such a proceeding to give judgment against the garnishees for one-half the debt”due from the Howards to the firm of Miles & Bell; that he had no jurisdiction to settle the equities between the members of the firm in this manner.

Conceding as a matter of law that the justice in an attachment issued upon a judgment against one partner has no right to settle the equities between the partners as was done in this case, the fact nevertheless remains that the justice had jurisdiction. If he made a mistake either in his law or his facts the party injured had liis remedy by appeal. No appeal was taken, and the judgment of the justice became final. All of the parties to the proceeding wore satisfied. Mr. Miles might have objected to the appropriation of the money of Miles & Bell to pay Mr. Bell’s debt. But he never has objected, nor has he ever taken any step to avoid the judgment. It is true he says in liis testimony that the appropriation was made without liis consent. But he does not say it was done without liis knowledge. If he had knowledge, which is probable, and did not object, it is too late to do so now. It is settled by a bead roll of authority that the judgment of a court of competent jurisdiction cannot be attacked collaterally.

The present attaching creditor has no right to complain, for the reason that the judgment before the justice was rendered, and the amount thereof paid by the garnishees, before he became a creditor of Miles & Bell. As all the parties to that proceeding appear to have been satisfied with the result he has no standing to attack it. ’

Ve are of opinion that upon the facts found by the learned court below the judgment should have been in favor of the garnishees.

The judgment is reversed and judgment is now entered' in favor of W. & C. B. Howard, garnishees, with costs.


author: Mr. Justice Gordon

text:
    Genesee Township Independent School District versus McDonald.
    1. Contracts entered into with a number of persons acting as a board of school directors are not binding upon the school district, when there is in existence at the sume time, another acting board of school directors, who arc so de jure and who lmve notified the persons contracting with the first mimed board, not to carry out their contracts.
    2. A school board having no standing regulations for periodical meetings met, organized and adjourned. It afterwards met for the transaction of business, and adjourned to a time and place certain. A quorum not appearing at- that adjourned meeting, the only member present adjourned it to another time and place certain, and this happened on several succeeding occasions. Held, that since it did not appear from the minutes of the board 'that there was any adjournment of the meeting for organization to that held for the transaction of business, the subsequent adjourned meetings were not regular meeetings wilhin the meaning of the Act of April 31th 1802, § 3 (P. L. 471), and that therefore the absence of members from two of said meetings successively, did not warrant the board, under the provisions of the Act of May 8th 1854, § 8 (P. L. 018), in declaring the seats of said members vacant, and proceeding to supply the vacancies.
    3. Where the minutes of a school board show that at a meeting, at which a quorum has been present, a resolution has been passed unanimously employing a teacher, this is such a.subslantial compliance with the provisions of the Act of April llth 1802, § 4 (P. L. 472), as will bind the school district.
    4. Tobin v. Morgan, 20 P. F. Smith 229, followed.
    5. Where such resolution was passed at a special meeting called for the transaction of other business, — Held, that this was not such an irregularity as could of itself affect the power of the school directors, and that, therefore, the resolution was valid and binding on the school district.
    June 20th 1881. Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Potter county: Of May Term 1881, No. 126.
    This was, in the court below, an appeal from the judgment of an alderman in favor of Mary A. McDonald against the Genesee Township Independent School District, for $66, for wages as a school teacher under a contract with Henry Roache and others, acting as the board of school directors of said school district.
    On the trial, before Wilson, A. L. J., the school district defended on the ground that the said Roache and others were not the lawful board of school directors of said district and had no power to bind the same by said contract.
    The following facts appeared: — In September 1879, the regularly qualified and acting board of school directors of said school district consisted of the following persons: James LI. Leach, President; Henry Roache, Secretary; Thomas Maxwell, Thomas T. O’Donnell, Thomas M. O’Donnell and John M. Moran. On September 2nd 1879, a meeting was held, at- which John M. Moran, Thomas'T. O’Donnell, Thomas M. O’Donnell and Henry Roache, being a quorum, were present. All the said members of the board had held a meeting on June 2d 1879, for the purpose of organization. The minutes of this meeting, as printed in the evidence, did not show that the board then adjourned to meet at any time certain, nor did it appear Avhether any meeting was held between June 2d and September 2d, 1879, nor that any standing regulations existed for periodical stated meetings. The meeting of September 2d adjourned to meet on Tuesday evening, September 15th at School House No. 1, at which time and place no one appeared except Roache, who adjourned the board “until Thursday evening at six o’clock in m. at No. 1 School House.” On the following Thursday evening, September 18th, Roache appeared alone and again adjourned till Tuesday evening September 23rd at six o’clock at the same place. It did not appear that the other directors had any notice of these adjournments, although they were regularly entered on the minutes. On the last named evening, Roache was the only one that appeared, when he proceeded to fill vacancies by declaring Thomas Maxwell’s seat vacant, he having been absent from more than' two preceding meetings, and appointed Laurence Moran in his place. Roache and Moran then appointed Thomas Burns to fill the vacancy caused by the resignation of James Leach (who had resigned and moved from the district); they then adjourned to Wednesday evening, the 24th, at 7 p. m., ail of which proceedings were entered on the minute book. The old board having no notice of this meeting, Burns, L. Moran and Roache met and declared the seats of Thomas M. O’Donnell, Thomas T. O’Donnell and John M. Moran, vacant, for absence from four regular meetings, and appointed Michael McNulty, Patrick O’Donnell and Francis Luddon in their places. Ón {September 26th, the new board — so called — met and transacted some business, and again, on October 4th following, Lawrence Moran, Thomas Burns, Iieury Roache and John M. Moran met, pursuant to adjournment, and with them Thomas T. O’Donnell and Thomas M. O’Donnell, of the old board, when the resolution of September 24th was rescinded by vote, and Thomas T. O’Donnell and Thomas M. O’Donnell by vote reinstated, which proceeding was afterward “ cancelled by order of the board.” From that time until June 1st 1880, both boards of school directors claimed each to be the acting board, and each held their meetings and kept their separate records.
    On May 4th 1880, a special meeting was called by'the board composed of Thomas Burns, President, Henry Roache, Secretary, and others, for the purpose of settling with the treasurer they had appointed ; after effecting such settlement, a resolution was unanimously passed employing Mary A. McDonald, the plaintiff, to teach a three months’ school, at 016 per month. She accepted the engagement, and taught until the duly elected board, which organized the first Monday of June 1880, locked the school house against her, and put in another teacher.
    Miss McDonald notified the board that she was ready to complete her contract, and after the expiration of the three months, brought this suit.
    The defendants offered to prove by witnesses and records that the old board of school directors, composed of Thomas T. O’Donnell, Thomas' M. Maxwell and others, were the duly elected and acting school directors during the entire period in which the so-called board, appointed as above mentioned, assumed to act; and that the old board notified Miss McDonald before she commenced to teach, that the persons who employed her had no authority so to do. Objected to on the ground that the title to school directors cannot be tried collaterally in this action, and because the offers do not tend to rebut the evidence that the board which employed the plaintiff was a de facto board. Objection sustained and offers rejected. Exception.
    The court instructed the jury to find for the plaintiff. Verdict accordingly for the plaintiff for $49.68. The defendants took this writ of error, assigning for error, inter alia, the exclusion of their offers of testimony as above.

      Benson & Peck and M. F. Elliot, for the plaintiffs in error.
    —The Act of May 8th 1854, section 8, Purd. Dig. 240, pi. 23, provides that if any school director shall neglect to attend any two regular meetings of the board in succession, unless prevented by sickness, &c., the directors present may declare his seat vacant and appoint a successor. One director has no power to declare a vacancy. ' In this case, the adjourned meetings were fixed arbitrarily by Roache, and were not “ regular ” meetings. The directors had no notice of them. The persons appointed at those meetings did not constitute such a de facto board .as could bind the school district by their acts.
    The court erred in refusing to permit the defendant to show that the old board was both a de jure and a de facto board during all the time that the so-called de facto board were attempting to usurp its powers. There cannot be two or more de facto boards at the same time, each having power to bind the district. The-notice from the old board to the plaintiff of the want of authority in the persons employing her should also have been admitted in evidence.

      Olmsted (with whom was Larrabee), for the defendant in error.
    The new board was lawfully appointed under the Act of May 8th 1854, sections 8 and 17, the latter of which provides: “ If less than a majority of directors or controllers attend any meeting no business shall be transacted thereat except that of adjournment, and of appointments to fill vacancies in the board as hereinbefore directed

    The secretary might have proceeded to fill the vacancy after two meetings, under section 8 of said act, but he gave the delinquents four meetings before declaring any seat vacant. The subsequent proceedings in filling vacancies were in exact conformity with the instructions of the state superintendent as laid down in School Laws and Decisions, edition of 1879, page 20, pi. 22, as follows:
    “ If only one member remains in office he can legally take measures to fill the board. In that case he should appoint one new member, he and that new member should then appoint a third, and so on until the board is full.”
    The meetings of the board, comniencing with the regular meeting of September 2d 1879, were all “ regular meetings ” as defined by the Act of April 11th 1862, section 3, Purd. Dig. 241, pi. 35, viz.: “ If there are no standing regulations then every meeting hold in succession from said first meeting for organization by adjournment to a time and place certain, and so entered on the minutes of the proper board, shall be to all intents and purposes regarded as a regular meeting ”

    No hearing or trial was necessary to declare a seat vacant for non-attendance at meetings: Felton v. Commonwealth, 8 ~W. & S. 267.
    But in any event the board, so appointed, was a de facto* board authorized to bind the district, by -this contract. This board had charge of all the books, moneys, collection of taxes and other business of the district, including the employment and payment of teachers, from the fall of 1879 to the spring of 1880, and the township auditors met with it and settled the account of its treasurer. Under the authorities, these circumstances are sufficient to constitute a valid de facto board, even if the members had not acted under color of election or right of appointment thereto: State v. Carroll, 38 Conn. 449, and authorities there reviewed; McGargell v. Hazleton Coal Co., 4 W. and S. 424; Baird v. The Bank, 11 S. and K. 414; Shartzer
      v. School District, 9 Norris 192. The acts of school directors within the scope of their office are not to be set aside for mere technical defects or omissions: School Directors v. McBride, 10 Harris 215. In this case, the employment of a teacher was a necessary and proper act, the services were rendered and accepted by the school district without objection, and the compensation agreed upon was reasonable. That a teacher is entitled to recover such compensation, whether persons employing her acted with or without authority, is distinctly recognized under very similar circumstances, in School District of Dennison Tp. v. Paddeu, 8 Norris, 395, where Mr. Justice Gordon, though holding the contract invalid, said: “For the two months which Miss Pad den taught she was entitled to pay, not because of the contract with the president, but because the school district had without objection received her services.”
    The offers of evidence to show that the old board was the de'jure and de facto board were properly excluded, because the directors were not parties to this action, and their title to the office could not be tried collaterally in this suit between a teacher and the school district.
    October 3d 1881.
   Mr. Justice Gordon

delivered the opinion of the court

The plaintiff in error, defendant below, complains, and we think justly, of the refusal of the court below to receive and submit to the jury the following offers of evidence: “ 1. To prove by Thomas O’Donnell, the witness on the .stand, and others, and by the records of the township elections, that Thomas T. O’Donnell, Thomas M. Maxwell, ITenry Roaclie, John M. Moran, Thomas M. O’Donnell and John ITart, were elected school directors of said school district, and by the minutes of said school board that Bryan McGinnis was duly appointed a school director of said district. To be followed by the evidence of Thomas O’Donnell and others, showing that said board, except as to Henry Roaehe, were the acting school directors of said district, from the date of their qualification to the 1st of June 1880.

“2. To prove by Thomas O’Donnell and other witnesses, and by the minutes of said board, that the old school board, composed of John Moran, Thomas M. O’Donnell, Thomas T. O’Donnell, Thomas Maxwell, Bryan McGinnis and John Hart, appointed in the place of J. IT. Leach, removed, employed the teacher for said school district, furnished the wood, repaired the school hoilse, and performed the other duties of school directors during the time that the board composed of Henry Roaclie, Thomas Burns, Patrick Roaehe' and others, claimed to be the acting school board.

“ 3. To prove that the old board of school directors, composed of Thomas T. O’Donnell, Bryan McGrinnis, Thomas M. O’Donnell, Thomas Maxwell, John Hart and John Moran, by order of said board of school directors, served a written notice upon the plaintiff, prior to her commencing the services, on which action is brought in this case, that they were the legal board of directors, and that they forbid her proceeding to teach the school in said district, or take possession of the school house under the employment of any other persons, assuming to be the board of school directors of said district.”

For the purpose of this case we must take these offers as proved; this being so, we have established as facts: 1. That the persons named were the lawfully elected and constituted board of directors; 2. That they acted as such; and, 3. That the plaintiff was not only not employed by this board, but that she ' was notified not to attempt to teach under the authority of those other persons who assumed to be the board of directors.

In the face of such facts as these, it is too clear for argument, that the plaintiff had no case.

It is contended for the plaintiff that the Tüoache board was, at least, a de facto board, and, as to third persons, its acts would be good and not impeachable in a collateral case such as this This position would be sound, and the authorities cited to sup .port it would be in point, were it not that the hypothesis is, that there was at the same time, an acting de jure board ; but as there can be but one such board in a school district, there can be no legal presumption which will support the acts of another. If the assumption of the plaintiff be correct, then might there be any number of school boards, acting for a district whose contracts would, as to third persons, be good and binding, and their powers to involve the district in debt and confusion could only be determined by a judgment on a writ of quo warranto ; but it certainly requires no serious argument to prove the unsoundness of a doctrine such as this.

The position in fact is, that any half dozen men may, without warrant of law, assume the rights and duties of the legally constituted and acting board of directors, and make contracts by .which the district must be bound. This assumption, however, is so unreasonable that it cannot be’law. But’here are two de facto boards; the one has made a contract with the plaintiff,the other has notified her that it has repudiated that contract; that it is null and void for want of authority in those making it. How is a question of this kind to be determined without determining the legal right of the two boards ? And suppose, for instance, that each board had employed a different teacher to occupy the same school house. How then ? Could both contracts be enforced against the school district? Certainly not. It would then be, as it now is, a question as to which of these' boards had the power to contract for the services of a teacher.

The next question is, had Henry Roache, under the circumstances, the power to declare and fill vacancies ? We think he had no such power, and this principally for the reason that no vacancy had occurred at the time he undertook thus to act.

The board had been regularly adjourned from the 2d to the 15th of September, to meet at School House No. 1. At that time and place, none of the directors were present, except Henry Roache, who took it upon himself to adjourn the meeting until the succeeding Thursday evening, at which time, no other members of the board being present, and probably, for the very good reason that they had no notice of the time and place appointed for it, he again adjourned until the 23d inst. At this time, again finding himself the only one of the directors present, he declared' the seat of Thomas Maxwell vacant and appointed Lawrence L. Moran to till his place. Now the Act of May 8th 1854 thus provides : “ If any person, having taken on himself the duties of his office as director, shall neglect to attend any two regular meetings of the board in succession, unless detained by sickness or prevented by absence from the district, or to act in his official capacity when in attendance, the directors present shall have power to declare his seat in the board vacant, and to appoint another in his stead to serve until the next regular election.”

Now, admitting the power of a single director to adjourn meetings and to declare and supply vacancies upon proper occasions, yet, it is manifest, that neither he nor a majohty of the board, has any such power except under the conditions prer scribed by the act. It is only where a director has neglected to attend two successive regular, or as defined in Zulich v. Bowman, 6 Wr. 83, stated, meetings of the directors, that his seat can be declared vacant. It is true, that the Act of 1862 provides that if there are no standing regulations for periodical meetings, in that case every meeting held in succession, from the first meeting held for organization, by adjournment to a time and place certain, and so entered on the minutes,” shall be regarded as a regular meeting. But, unfortunately for the plaintiff’s case, it does not appear by the minutes that there was any adjournment of the meeting for organization, on the 2d of June, to the 2d of September. It follows, that as this meeting was not a regular meeting, within the meaning of the Act of 1862, neither, under the ruling in the case above cited, were the adjourned meetings of September 15th, 18th and 23d, regular meetings. As we are thus thrown back upon the Act of 1854, it is clear that tlie appointments of Poaehe and his appointees were without authority and void.

On the hypothesis that the defendant’s offers are, or can be, proved, the plaintiff’s case cannot be sustained, and. in that event, the resolution of the 4th of May 1880, by which the plaintiff was employed, whether regular or irregular, is of no moment, but if these offers cannot be sustained, this resolution may be of importance, and must, therefore, be considered. After a good deal of hesitation we have come to the conclusion that, all other things being regular, the resolution would be.good and binding upon the district. The minutes show that at that meeting, four directors, Burns, McNulty and the two Poaches were pi’esent, and it further appears, by the same minutes, that the resolution passed unanimously; in other words, by the affirmative vote of every member present. This, according to the ruling in Tobin v. Morgan, 20 P. F. Smith 229, was a substantial compliance with the fourth section of the Act of April 11th 1862.

It is true that the meeting was called for a special purpose, aud that, regularly, no other business than that for which it was appointed ought to have been transacted, but as this irregularity could not, of itself, affect the power of the directors, the resolution would, nevertheless, be good.

The judgment is reversed, and a new venire ordered.


text:
    Waynesboro Mutual Fire Insurance Co. versus Creaton.
    1. Where a loss occurs under a policy of insurance against fire, and suit is brought on the policy, the valuation in the policy is not the controlling proof of actual value, but the jury must find from the evidence yvhat the actual value of the building was, and that must not be what it would cost to rebuild, but what is shown to be its money value under all the circumstances of its situation and surroundings at time of the fire.
    2. Where the plaintiff presents a point, embodying th above principles as a rule for adjusting the loss, it is error for the court o answer it by charging that the jury are at liberty to adjust the loss upon the proofs before them.
    June 20th 1881. . Before Sharswood C. J., Merour, Gordon, Paxson, Trunket, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Cameron county: Of May Term 1881, No. 64.
    Debt, by John Creaton against The' Waynesboro Mutual Fire Insurance Company, upon a policy of insurance dated May 14th 1878, for $1,000, on a certain building in the town of Emporium belonging to the plaintiff.
    On the trial, before Williams, P. J"., it appeared that the policy contained, inter alia, the following clause:
    “ 15. In case differences of opinion should arise between the parties hereto, as to the amount of any loss or damage under this policy, or the relative condition or value of any property rebuilt, repaired or replaced by the company, the subject shail be submitted to the judgment of two disinterested and competent men, each party selecting one, [and in case of disagreement they to select a third] and the award in writing of such appraisers, or any two of them, shall be binding and conclusive upon the matter so submitted, upon both parties to this policy.” After the date of the policy plaintiff effected another insurance for $1,000 upon the same premises in the Susquehanna Insurance Company'.
    On August 1st 1878, the insured premises were totally destroyed by ñre. The plaintiff and the company defendant differing as to the value of the destroyed -premises, the matter was referred to John W. Kriner and John Norris, who found that they were worth $2,107.91. The company declining, to pay plaintiff the full amount of the face of his policy, he then brought this suit.
    Defendant requested the Court to charge, inter alia: 12. The valuation in the policy is not the controlling proof of actual value, but the jury must find from the whole evidence what the actual value of the building was, and that must be not what it would cost to rebuild but what is shown to be its money value under all the circumstances, of its situation and surroundings at time of lire. Answer: “ If the jury find that there was actual submission of this loss to the determination of arbitrators, and such determination has been made without fraud on the part of the plaintiff or the arbitrators or gross mistake — it is binding upon both parties. If there was no actual agreement 'to submit the adjustment to Norris and Kriner, but they were employed to make an estimate as proof of loss, then the value put by them on the building is not conclusive, and the jury are at liberty to adjust this loss upon the proofs before them. The policy sued on was.concurrent with another of same amount. The defendant would be liable, therefore, in that event, for only half the actual loss incurred. For example: if the building was found to be worth $1,200 defendant would be liable for one-half 'that amount, and interest thereon.”
    Verdict and judgment for the plaintiff in the sum of $1,120. Defendant thereupon took this writ, assigning for error, inter alia, the answer of the court to its twelfth point as above.

      Joseph Douglas and J. G. Johnson, for plaintiff in error.

      Newton and Green, for defendant in error.
    October 3d 1881.
   Mr. Justice Green

delivered tlie opinion of the court,

We find no serious error in tins record until we come to tbe answer of tbe court below to tbe defendant’s twelfth point. Tins point called upon tbe court to lay down a rule to govern tbe jury in fixing tbe value of tbe building, and it should have been affirmed, Tbe answer neither affirms nor denies’ tbe point. In fact, it cannot be said to be responsive. We have no fault with that part of it which says: “If tbe jury find that there was actual submission of this loss to tbe determination of arbitrators, and sucli determination lias been made without fraud on tbe part of tbe plaintiff, or tbe arbitrators, or gross mistake, it is binding upon both parties.” After stating tbe converse of this proposition tbe learned judge said : “ Then tbe value put by them upon tbe building is not conclusive, and tbe jury are at liberty to adjust this loss upon tbe proofs before' them.” Put bow adjust tbe loss upon tbe proofs before them? It was just here tbe point was intended to indicate tbe rule, and tbe answer wholly fails to furnish it. This was error.

Judgment reversed and a venire facias de novo awarded.


author: Mr. Justice Trunkey

text:
    Sherwood versus Yeomans.
    1. Where a cause has been settled by consent of the parties, and is so marked on the record, the court cannot at the instance of the plaintiff disregard that settlement and oblige the defendant to proceed to trial.
    2. Where the defendant objecting to and protesting against said trial, nevertheless takes part therein, and adduces evidence on his own behalf, he will not be estopped on error from setting up the irregularity of the proceeding.
    3. The fact that there is evidence adduced on such a trial showing that the plaintiff has been laboring under a mistake at the time of the settlement does not validate the proceedings of the court.
    ' June 20th 1881. Before Sharswood O. J., Mercur, Gordon, Pazson, Trunkey, Sterkett and Green, JJ.
    Error to tbe Common Pleas of Potter county: Of May Term 1881, No. 55.
    This was an action of assumpsit by Titus Yeomans against William C. Sherwood on a book account. Pleas non assumpsit, payment, and set oil with leave, &c.
    The case being called for trial on March 4th 1879, the parties filed nthe following paper, entitled in the cause: — ■
    “ This cause is settled as follows : The defendant gives plaintiff a note for twelve dollars and forty cents on ninety days’ time and each party to pay his own and all costs made by him. Titus Yeomans,
    William 0.' Sherwood.”
    And the judge marked upon the trial list: “ Settled as per writing filed.”
    Plaintiff, however, put the cause on the trial list again, and on September 17th 1879, it was again called for trial before Wilson, A. L. J. Defendant protested against the empannelling and swearing of a jury, on the ground that the record showed that there was no cause pending in court between the parties. The court (Wilson, A. D. J.) nevertheless caused a jury to be empaunelled and sworn.
    .Defendant then objected to the introduction of any testimony in the case. Objection overruled, and witnesses called for the plaintiff. Exception.
    Plaintiff then offered in evidence a certain contract made between himself and the defendant. Defendant objected on the ground that it was irrelevant and incompetent to prove the items that were omitted at the time of the settlement between the parties, and because the declaration did not claim for items or money omitted by mistake at settlement and gave defendant no notice of any such claim. Objection overruled. Evidence admitted. Exception.
    Plaintiff further testified himself that when settling the case with defendant he had withdrawn with him into the jury room, and that there they had looked into their accounts against each other. The circumstances he described as follows : “ We took down the footings, his on one page and my account over his ; my account against Sherwood was over $900, not much over; his was short of that; only $12.65, 1 think it was ; S. note was drawn for the balance: I think this is the note dated March 4th 1879, $12.65; that was the day we settled, I think the amount was not there by a good deal; it was not an hour after I discovered the mistake.”
    The defendant cross examined the plaintiff’s witnesses and also adduced evidence himself going to show that the balance ascertained against him at the time of the settlement was correct.
    • The court charged, inter alia, as follows: “The court instruct you that if the parties made a mistake in the settlement, that you may ascertain from the evidence what, if any, item or items were omitted, and if you find that the items omitted in that settlement would result in a balance in favor of the plaintiff yon may so find and return the same in a verdict for the plaintiff.”
    Verdict for the plaintiff in the sum of $99.86 and judgment thereon. Defendant thereupon took this writ, assigning for error, inter alia, the empannelling and swearing of the jury, the admission of testimony in the cause, and the portion of the charge of the coui't above cited.

      Olmsted and Larrabee, for the plaintiff in error.
    The record showed that the suit had been terminated by the act of the parties. There was, therefore, nothing at issue. The record could not be contradicted: Berks & Dauphin Turnpike Co. v. Hendee, 11 S. & R. 123 ; Marsh v. Pier, 4 Rawle 288 ; Cist v. Zeigler, 16 S. & R. 282; Adams v. Betz, 1 Watts 425 ; Hess’ Executors v. Heebie, 6 S. & R. 57; Hoffman v. Coster, 2 Wharton 468; Withers v. Livezey, 1 W. & S. 435 : Selin v. Snyder, 7 S. & R. 170; Bellas v. McCarty, 10 Watts 24; Wilkins v. Burr, 6 Binn. 389. If mistake in making the settlement was averred, the proper course was to have the record amended and the settlement set aside.
    The plaintiff in error is not estopped from setting up this irregularity by reason of his having cross-examined witnesses and adduced evidence on his own behalf: Fisher v. Longnecker, 8 Barr 410; Coleman’s Appeal, 25 P. F. Smith 460.

      Elliott and Cobb, for the defendant in error.
    The settlement was signed by defendant in error through mistake. This was decided by the jury. It was therefore void, and is to be disregarded.
    Plaintiff in error is at any rate precluded from questioning the propriety of trying the case by reason of his active participation in the trial.
    October 3d 1881.
   Mr. Justice Trunkey

delivered the opinion of the court,

When this cause was reached for trial on March 4th 1879, the parties filed a paper showing the terms of its settlement, the court noted on the trial list, Settled as per writing filed,” and the settlement was properly entered in the record. That the ' suit was thereby ended is too plain for argument.

In September following, at the instance of the plaintiff, the case as if still pending was called for trial, whereupon the defendant objected to the empannelling of a jury for the reason tliat the suit had been determined he next objected to the introduction of testimony, for the same reason; he finally asked the court to charge that the record showed that the cause had been settled and that the proceeding subsequent to the settlement was without authority of law. These objections and request evidence the absence of consent to go to trial, or of acquiescence by the defendant. The plaintiff (defendant in error) cites no authority in support of the position that a discontinuance, or nonsuit, or settlement of a cause, allowed by the court, while the same remains of record, may be treated by one of the parties and the court as a nullity. If one party attempts to so treat it, the other, who all the time objected and protested against further proceeding, will not be estopped from claiming relief in this court, although he endeavored to prevent a verdict and judgment against himself where no suit was pending.

There was no issue for trial. The issue which had been raised in the pleadings was settled. This the record verified. No' groundwork had been laid upon which there could have been a trial or inquiry of the question,- whether there was fraud or mistake in the settlement. Taking the record as it stands there was nothing between these parties to warrant a trial or investigation in any form.

Judgment reversed.