author: Mr. Justice Trunkey

text:
    Union Township versus Gibboney & Nelson.
    1. One of several supervisors cannot bind a township for the performance of a contract, where the propriety of entering into the same is the subject of deliberation and the exercise of judgment. Where the business requires deliberation, consultation and judgment, all the members of a board should regularly convene, and no act should he done without the consent of a majority, or of both, if there are only two members.
    2. One of several supervisors may bind the township in merely ministerial matters, such as the ordinary repair of the roads and keeping them in order, for the law contemplates that that should he done by the road tax, which the taxpayers may work out under the direction of the supervisor. But whether a debt should be contracted for the ordinary repair of roads and bridges is a matter for deliberation and judgment, and the township cannot be bound for borrowed money, save by the joint action of the supervisors; and even then their power to contract debts is very limited.
    3. S. and Y., who were supervisors of a township, for their convenience agreed that they would each attend to the repairs of the roads at their respective ends of the township. S. gave orders to the laborers on the road on a storekeeper for goods to be charged to the township. In a suit thereon against the township, Held, that the orders were not binding on the township.
    May 25th 1880.
    Before Mercur, Gordon, Trunkey, Sterrett 'and Green, JJ. Sharswood, O. J., and Paxson, J., absent.
    Error to the Court of Common Pleas of Mifflin county: Of May Term 1880, No. 6.
    Assumpsit by Gibboney & Nelson against the township of Union, to recover the ainount of certain orders for merchandise and other supplies, issued on the credit of the township by one of the supervisors thereof, to laborers employed by him to work on the roads of said township.
    It appeared at the trial, before Bucher, P. J., that William E. Stroup and J. N. Yoder were supervisors of Union township for the years 1874 and 1875. For their convenience it was agreed between them that each one should take particular charge of the repair of the roads in the end of the township where they respectively resided. Stroup proceeded to repair the roads in his end, but there being no funds at hand from the receipt of road taxes, he arranged with the plaintiffs, who were storekeepers, to furnish materials and supplies to the men employed, upon orders issued by Stroup upon the credit of the township. The book account of the plaintiffs showed that lumber and other materials necessary for the repair of the roads to the amount of $36.76, were furnished, but payment of this account was not resisted. They also claimed that they accepted orders under the above-mentioned arrangement in favor of workmen employed in the repair of the roads, for provisions and other personal supplies, to the amount of $920, upon which $475.11 had been paid, leaving a balance due of $444.89. To recover this balance and the above sum of $36.76, with interest on both amounts, this suit was brought.
    The plaintiffs offered in evidence the orders thus received, which were in form as follows:

      “ Belleville, June 12fch 1874.
    Gibboney & Nelson: Let Charles Bennett have goods to
    amount of two dollars, and charge to Union township.
    $2. W. F. Stroup, Supt.”
    The defendant, inter alia, objected that one supervisor had no power to make such a contract. Objection overruled and evidence admitted.
    The defendant, under objection and exception, gave evidence showing that the township auditors had a settlement with the supervisors, wherein the latter were allowed credit for the work done on the roads, covered by certain orders mentioned in the settlement, and that it was understood at the time of said settlement that there were outstanding orders which were not paid.
    In the general charge, the court, inter alia, said:—
    “ The defendant insists that these orders are not binding upon the township for want of authority in the supervisors to draw them. For the present, we instruct you that these, orders are valid and binding upon the township, and you ought to find for the plaintiffs, unless indeed the defendant has shown that they have been paid. We permitted the defendant to give evidence that the township authorities had a settlement with the supervisors, and that they were allowed a credit for the work done on the roads covered by the orders in the settlement. It is also in proof that at' the time this settlement was made, it was proven to the township auditors that there were outstanding orders unpaid. Now we instruct you that this settlement, which was made in the absence of the plaintiffs and without notice to them, cannot defeat a recovery.”
    Verdict for plaintiffs, and after judgment thereon, defendant took this writ and alleged that the court erred in admitting the orders in evidence and in the above portion of the charge.

      A. Reed and Cfeorge W. R. C. Rider, for plaintiff in error.—
    The powers of a supervisor of township are limited. The manner in which the roads of his township are kept in repair, or the funds raised to do it, are all specifically provided for by law. There is no express power given to supervisors to borrow money, and we claim there is no implied power to do so. The agreement of Stroup, the supervisor, with defendants in error, that they should procure flour, and accept orders from the men who worked on the road, is borrowing money: Commonwealth ex rel. Middleton v. Commissioners of Allegheny, 1 Wright 241.
    There is no such power lodged with supervisors of a township: City of Williamsport v. Commonwealth, 3 Norris 487. Road districts rank so low that they have no powers but what are expressly granted them, and such implied powers as are necessary to carry into effect their duties under their expressly granted powers: 1 Potter on Corp. 478. Even municipal authorities cannot be held except in the manner prescribed for doing municipal work : Addis v. City of Pittsburgh, 4 Norris 379. But whether supervisors can issue orders, bonds, borrow money or not, the doing of it is certainly a matter for deliberation, when the exercise of it is of -such doubtful power, and therefore it cannot be done by one supervisor: Cooper and Grove v. Lampeter Township, 8 Watts 125. It would open the door to fraud to permit the supervisor to bind the township with orders such as were here given.
    June 22d 1880.

      D. W. Woods, for defendants in error.
    It was undoubtedly the duty of the supervisors to repair the roads and bridges in their districts, and to employ laborers to do the work when the taxpayers, on notice, neglected or refused to do it. When, therefore, they hired men for this purpose, they were clearly acting within the scope of their authority, and the township was bound to pay these men for this labor. This the township never did. Within the scope of their authority, the power of the supervisors to bind the township is clear: Cook & Wakely v. Deerfield Township, 14 P. F. Smith 445; Dauphin County v. Bridenhart, 4 Harris 458.
    In all matters which the township is bound to perform, one supervisor may bind the township even Avhere the other refuses his consent: Pottsville v. Nonvegian Township, 2 Harris 543. One supervisor may bind the township by a merely ministerial act — such as the employment of hands and giving due bills for the amount of work done on the roads: Dull v. Ridgeway, 9 Barr 272; McNeal v. Allegheny Township, 1 Am. Law Reg. (O. S.) 124.
    Where supervisors agree, as in this case, that each shall take charge of a certain portion of the township, the action of each within the limits assigned, is binding on the townhip: Commonwealth v. Supervisors of Colley Township, 5 Casey 121; Hopewell Township v. Putt, 2 W. N. C. 46.
   Mr. Justice Trunkey

delivered the opinion of the court,

Counties and townships are involuntary civil divisions of the state, incorporated by general laAvs, to aid in the administration of government. Their powers all relate to matters of state as distinguished from local concern, such as the administration of justice, and the establishment and repair of public highAvays. The statutes confer upon them all the powers they possess, prescribe all the duties they owe, and impose all liabilities to which they are subject. Considered in respect to the limited number of their corporate powers, they rank low down in the scale or grade of corporate existence ; and hence have been frequently termed quasi corporations. This designation distinguishes them from private corporations aggregate, and from municipal corporations proper, such as cities or towns acting under charters, or incorporating statutes, and which are invested with more powers, and endowed with more functions and a larger measure of corporate life: Dillon on Municipal Corporations, sect. 10 a.

It is a statutory duty of townships to open, construct and keep in repair all public roads within their limits, and they may make such contracts as shall be necessary and proper for the execution of that'purpose. By the general statutes, supervisors are enj oined and required to open and constantly keep in repair all public highways, making sufficient causeways on marshy and swampy ground, and bridges over small creeks and rivulets, for -which they may purchase, at the expense of the township, all necessary materials, and employ and direct a sufficient number of laborers. They may lay an assessment not exceeding one cent in the dollar on real and personal estate, which may be paid in work on the roads; and they have no power to issue a warrant for the collection of said tax until after they shall have given the taxpayers notice, and full opportunity to work out their respective taxes. Nor have they power to make a contract, the effect of which would be to deprive the taxpayers of that privilege. Power is given to lay an additional assessment for the purpose of paying any just debt due a former supervisor. Townships have no express authority to borrow money, and they have none, unless by necessary implication for carrying out the duties imposed upon them. They cannot give negotiable securities which would preclude defence on the merits against any holder.

One supervisor cannot bind the township for performance of a contract, the propriety of entering into which is the subject of deliberation and the exercise of judgment; but he may in matters purely ministerial. When the business requires deliberation, consultation and judgment, all should be convened, because the advice and opinions of all may be useful, and though they do not unite in opinion, a majority may act when there are more than two. Before constructing a new bridge, they must meet and act as a board, for this can only be done on deliberation and consultation, and with, the assent of both, or a majority. But the ordinary repairs of roads and bridges, and opening roads authorized by the Court of Quarter Sessions, are classed with ministerial duties, and may be performed by one: Cooper v. Lampeter Township, 8 Watts 125. The court say : “ It is conceded that one supervisor cannot levy a tax to pay the debts contracted and expenses incurred in the township. The consent of both is required, because it is a deliberative and not a ministerial duty. For the same reason such contracts cannot be made by less than a majority of the board, as this would enable the one to involve a township in expenses which would render a tax inevitable. They are not permitted to do indirectly what they cannot do directly. When damage is done to a road or bridge by a freshet or other accidental cause, or when it needs repair from the natural progress of decay, there can be no objection to the necessary expenditure being authorized by less than a majority. This is an absolute duty, which calls neither for deliberation nor consultation.” The sound doctrine of that case has not been overruled by the later cases relied on by the plaintiffs below.

In Pottsville Borough v. Norwegian Township, 2 Harris 543, a bridge over a creek, the dividing line between the borough and township, had become ruinous and dangerous, and the borough, having requested the township to join in rebuilding, and the latter having neglected its duty, constructed a new bridge ; it was held, the actor could recover one-half the. cost- of such a bridge as was reasonably necessary; but not half the cost of the one which was built if more expensive than was necessary having reference to the wealth of the township. There the necessity for a bridge had been settled, it was a legal duty of the borough and township to rebuild, and the law fixed the township for half the expense. It was held in Dull v. Ridgway Township, 9 Barr 272, that when a supervisor gives a due bill to a laborer which shows on its face it was for work done for a certain road, it is valid; for that is in the line of his ministerial duty in employing laborers to open or repair a road. The laborer could recover for his work without the due bill, it adds not a title to his right; and though prima facie entitling him to recover, it would not bar any meritorious defence. Opening a road in obedience to an order of the Quarter Sessions is a ministerial duty, for the supervisor cannot interpose his judgment to avoid it. Hence, it was ruled in Hopewell Township v. Putt, 2 W. N. C. 46, that where one supervisor awarded a contract for building a new road, a person who paid money on the contract, at the request of the supervisor, could recover the same from the township. Certainly, making the contract, though for work authoritatively commanded, went to the verge of the porver of a single supervisor, if not beyond; and one of the judges dissented.

Undoubtedly a county or township may be legally liable for a debt, without the active agency of the commissioners or supervisors. A county is liable for expenses of a jury in a capital case, and for the expenses of courts: Commissioners v. Hall, 7 Watts 290; McCalmont v. Allegheny County, 5 Casey 417. But these and like cases throw no light on the question whether one commissioner or one supervisor has power by contract to subject the county or townshin to liability for money or merchandise furnished to himself.

The supervisors divided the township, each taking charge of the roads in his part. Their respective duties were repairing old roads and keeping them in order. The law contemplates that this should be done by the road tax, which the taxpayers may work out under the direction of the supervisors. If they refuse to work they must pay the tax in money, and it is the supervisors’ duty to collect it and properly apply it for road purposes. Except when some extraordinary expenditure is required, it is not contemplated that debts shall be contracted to be paid by an additional assessment. Whether a debt should be contracted for the ordinary repairs of roads and bridges is a matter for deliberation and. judgment, and the township cannot be bound for borrowed money save by the joint action of the supervisors; nor even then in all cases, for their power to contract debts is very limited. “ Those who deal with such agents must take care to have the express consent of all to whom the law has intrusted the transaction of the public business. The inhabitants of the township whose interest must be protected, have a right to the counsel and judgment of all to whom such trusts are committed.” Per Rogers, J.

Stroup, as supervisor, employed laborers to repair the roads, and could have given them orders on the township treasury, or evidence of the amount of their work in the form of a due bill. Within such limit there is comparatively little room for abuse. He made a contract with the plaintiffs for credit to an indefinite amount, he to give his laborers orders on them, which they would accept and give goods therefor, on the credit of the township. These aggregate the sum of $952.50, and are in the following form : “ Gibboney & Nelson : Let Charles Bennett have goods to amount of $2, and charge to Union township. W. F. Stroup, Supt.” A more vicious method of contracting indebtedness against a township could scarcely be imagined, even if it were by the joint act of the supervisors. The parties to this transaction were honest, it is said, yet the supervisor who did the work and gave the orders, settled his accounts with the auditors and was allowed for the whole amount of labor done. The taxes nearly covered all the work which was done by both supervisors. The learned judge of the Common Pleas was entirely right in ruling “that this settlement, which was made in the absence of the plaintiffs and without notice to them, cannot defeat a recovery.” It is illustrative of the wisdom of the law in withholding power from one supervisor to contract the debt. Stroup and the plaintiffs were honest, and the attempt is to hold the township liable for hundreds of dollars already paid to Stroup in his settlement. . If this contract binds the township, wha.t may be done by a dishonest officer ? On its face it is a barter, wherein lurk temptations to excessive wages, excessive prices for goods, and favors of some sort between merchant and officer. Were the orders payable in money the danger to the interest of the township would be nearly as great. Such a contract as is set up here ought never to be made by supervisors ; when it is the act of one only, for that reason the township is not bound; and, at present, it is unnecessary to say whether, if the act of both, it would be void on the ground of public policy.

We are of opinion it was error to admit the orders in evidence, and rule that they were binding upon the township.

That part of the plaintiffs’ claim which is for materials furnished for repairs of the roads, at request of one of the supervisors, rests on a different footing, and no objection has-been made to its recovery.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Jamieson versus Capron, to use, &c.
    1. A. and others brought actions of replevin, as the executors of B., deceased, against C. and others, who claimed the property replevied, gave bonds to the sheriff in the usual form, and pleaded non cepit and property, upon which issue was joined. Subsequently, on the application of plaintiffs, an amendment was allowed, by which the word “executors” was stricken out and “ heirs at law” were substituted, and the names of other heirs at law added as plaintiffs. Held, that the amendment could be made, and that the surety on the property bond was not thereby released.
    2. A surety in judicial proceedings must be considered as contracting with a view to what the law prescribes and as assenting to all the lawful consequences of his act; and in becoming surety for defendants in these actions of replevin the surety must be considered as having contracted with reference to the law, applicable to the trial and final determination of the cases, which is presumed to include all authorized amendments.
    3. Kille v. Ege, 1 Norris 102, distinguished.
    May 26th 1880.
    Before Mercur, Gordon, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., and Paxson, J., absent.
    Error to the Court of Common Pleas of Warren county: Of May Term 1880, No. 211.
    Debt by J. R. Capron for use of Henry P. Duncan and others, against H. E. Brown, administrator of the estate of E. H. Dunn, .deceased, John R. Shaw and H. A. Jamieson.
    This action was brought to recover on two property bonds given in two actions of replevin instituted in the Common Pleas of Warren county. The writ was served on H. A. Jamieson alone, the surety for the defendants in the bonds. Both replevin suits were brought in the names of Henry P. Duncan, Samuel Duncan and Stephen Duncan, executors of Stephen Duncan, deceased. The property was replevied and bonds given by defendants. After the cases were at issue on the pleas of ne unques executors, non cepit and property, motions were made by the plaintiffs in both cases to amend the record by changing the title of the suits by substituting the heirs of Stephen Duncar (naming them) as plaintiffs, and about four and a half years thereafter the substitution was ordered.
    There were recoveries in the replevin suits in favor of Duncan’s heirs, and they undertook, in this case, to collect the amount from the surety in the cases, on bonds executed to the sheriff in the name and for the benefit of the executors, not the heirs, of Stephen Duncan.
    The questions in the case were, had the court the right to make the amendment, and if so, whether a recovery can be had against the surety in the amended cases, on the bonds given in the cases as they were originally brought ?
    Trial by jury was dispensed with, and the case was tried by the court, Wetmore, P. J.
    At the trial the records in the replevin suits were offered in evidence, and defendants objected, for the reason that they were not the same cases in which the bonds in suit were given. Objection overruled and evidence admitted.
    The defendant submitted the following points, all of which the court refused :
    1. There having been no recovery by Duncan’s executors, in whose favor the original suit was brought, who were the plaintiffs when the bonds in controversy were given, there can be no recovery against the defendant, who was the bail in the bond given by defendants for the property replevied by Duncan’s executors.

      2. That the amendment made by striking from the record the original party plaintiffs and substituting in their places entirely different parties, affects only the record of the cases in which the amendment was made, and has’ no effect whatever on the bond given to the sheriff as far as Jamieson, the bail is concerned.
    3. The court had no power to amend anything farther than the writ, declaration, plea and judgment in the cases in which the amendment was made.
    4. The above-named defendant was not a party to any of the proceedings in the original cases, had no notice of the application of the plaintiffs to amend, and is not bound by the action of the court in allowing the amendment.
    5. That the act of Duncan’s executors in procuring the amendment by which others were substituted as plaintiffs in their place, released the surety in the property bond, against whom the substituted plaintiffs seek to recover in this case.

      The court found the facts substantially as set forth above, and in their conclusions of law, inter alia, said :
    “ The condition of the bond is that Eli H. Dunn et al. shall appear in court and defend and make good their claim to the timber or lumber. As between the executors and the heirs at law of Stephen Duncan, deceased, it was of no consequence to defendants to whom the property belonged.
    “ The construction of the bond of the bail is that they shall not be bound beyond the extent that shall appear by the surroundings of the transaction to have been contemplated at the time of the execution. Law and equity cast the responsibility on the surety, if by the terms of the agreement he assumed it; but this would not be so if the bond of the surety is not within the scope of the undertaking. When the bond was executed there existed the right under the law to add or alter the names of parties, plaintiff or defendant, when a mistake o.r omission had occurred in the same.
    “ If the amendment was within the authority of the court at the time and duly made, the rights of the defendant were subject to the exercise of this authority. It was within the scope of the undertaking of defendant. This position is fully sustained in the case of Hooker v. Woods’s Ex’rs., 9 Casey 466, which rules this case.”
    The court then entered judgment for plaintiff for $1095.02. Exceptions were filed by defendant to the decision of the court which were dismissed. This writ was then taken, defendant alleging that the court erred in the above entry of judgment, in the admission of the records of the suits in reolevin, and the refusal of the foregoing points.

      R. Brown, for plaintiff m error.
    The substitution of the new plaintiffs was without notice to defendant, deprived him of a valuable right, and released him from his suretyship. It modified his contract. The bond was to indemnify against the original and not against the new plaintiffs. No affidavit accompanied the motion to amend, and no evidence was given to show any mistake in bringing the action, or that the new had any joint interest or privity of title with the original plaintiffs: Kille v. Ege, 1 Norris 102. If these are new suits then there have been no judgments recovered in the original suits, and there can be no recovery on the bonds; Eldred v. Bennett, 9 Casey 183; Chaffee v. Sangstone, 10 Watts 269: Gibbs v. Bartlett, 2 W. & S. 29. The records only were amended, the bonds were not. When defendant executed the bonds the claim of the executors was all the right in his contemplation. The extent of his engagement was that the right should be established against the title of the executors, not against others. The liability of Jamieson was increased by the substitutions, and he was thereby released. Hocker v. Woods’s Ex’rs., is distinguishable from this case.
    June 14th 1880.

      W. D. Brown and Clark & Noyes, for defendant in error.
    The bonds were not given to the plaintiffs in the replevin cases, but to the sheriff; the condition was not that they should be void in case the plaintiffs failed to recover judgment, but in case the defendants, who claimed to own the property, should appear to said actions, make good their claim and indemnify the sheriff in the premises. This is the ’substantial point of the condition, and is equivalent to having judgment in their favor: Chaffee v. Sangstone, 10 Watts 265.
    Property bonds, although unknown to the common law of England, are an established feature of judicial proceedings in Pennsylvania. The right of a defendant in replevin who claims and pleads property to retain the goods upon giving such bond is undoubted. Being judicial obligations they are to be construed with reference to all the incidents of judicial proceedings.
    Defendant was presumed to know that the court could and would permit amendments to enable parties to have a trial upon the merits. Nor was the extent of his liability unlimited or uncertain. Not every one having or claiming title to the goods could be made plaintiff by amendment, but only such as the law permitted. The obligation of the surety was co-extensive with the suit in which it was given. There was no change in the cause of action ; no strangers were added to the record, the new parties being joint heirs with the original parties, and all claiming as heirs. The title of Stephen Duncan was the foundation of the claim after as well as before the amendment. The court must be presumed to have been satisfied of the propriety of the amendment by sufficient evidence, even though nothing appears of record.
   Mr. Justice Sterrett

delivered the opinion of the court,

The contention of the plaintiff in error is that he was discharged from liability as surety on the property bonds in consequence of the amendments in the replevin suits, made without authority of law, as he claims, and without his knowledge or consent. The actions gf replevin were brought by Henry P. Duncan, Samuel Duncan and Stephen Duncan, executors of the last will and testament of Stephen Duncan, deceased, against Eli H. Dunn et ah, who claimed the property replevied, gave bonds to the sheriff in the usual form, and pleaded non eepit and property, upon which issue was joined. Subsequently, on application of the plaintiffs, an amendment was allowed in each case, by which the words “ executors of the last will and testament” were stricken out, and the words “heirs at law” substituted, and the names of other'heirs at law were added as plaintiffs. As thus amended, the cases were tried and resulted in judgments for the plaintiffs, who then brought the present suit on the property bonds, in the name of the sheriff to their use against the plaintiff in error, and judgment was obtained against him for the amount recorded in the actions of replevin.

If the amendments were unauthorized, it will scarcely be pretended that the surety in the property bonds would not be discharged. But so far as the records in the replevin suits given in evidence in this case have been brought to our notice, there is nothing to show that the amendments were either unauthorized or irregular; on the contrary they appear to have been within the letter and spirit of our statute of amendments. They consisted, as we have seen, first in changing the character in which the plaintiffs sued from executors to heirs at law, and secondly, in adding the names of other heirs at law who were not executors. Amendments, similar in principle, have been frequently sanctioned: Kaylor v. Schaffner, 12 Harris 489; Schollenberger v, Seldonridge, 13 Wright 83; Cochran v. Arnold, 8 P. F. Smith 399; Wescott v. Edmonds, 18 Id. 34. It is said in Kaylor v. Schaffner, supra, that whenever it appears a mistake has occurred it is the duty of the court to correct it, taking care that the amendment be not used for the purpose of introducing a cause of action substantially different from that on which the suit was actually though informally brought.”

The case before us is distinguishable from Kille v. Ege, 1 Norris 102, in this, that the original plaintiffs in that case had no cause of action, either in their own right or in any representative capacity, and were accordingly nonsuited. The plaintiffs who recovered were new parties, brought upon the record two years after suit was commenced, strangers to the original plaintiffs and in no way connected with them by privity of interest or otherwise. The three plaintiffs who originally sued in this case were in fact heirs at law of Stephen Duncan, deceased, and the mistake that appears to have been made was in styling them executors instead of heirs; and that was clearly amendable. There was no change in the cause of action. The basis of claim before as well as after the amendment appears to have been title derived from Stephen Duncan, deceased. The parties brought upon the record were not strangers to the claim. They were joint heirs with the original parties, and all derived title to the property in controversy from a common source.

It follows, therefore, that the defendant had no available defence, either on the ground that the amendment was unauthorized, or that it introduced a new cause of action.

But, it is further contended that, inasmuch as there could have been no recovery by the original plaintiffs in their capacity as executors, the effect of the amendment was to change or increase the liability of the surety, and that he was thereby discharged. This would undoubtedly be correct if his obligation as surety for the defendants had not contemplated a trial and judicial determination of the cause of action, on which the replevin suits were based, according to the established course of practice in such cases, because it is a just and reasonable principle of law that the contract of a surety shall not be changed without his consent, express or implied. When a person becomes surety for another in a judicial proceeding, there is an implied understanding that it shall be conducted according to the provisions of law relating thereto. The statutes regulating amendments, as well as other incidents of trial, are as much a part of the contract, in the contemplation of the parties thereto, as if they were embodied in the condition of the bond. There is and necessarily must be this distinction between contracts of suretyship in ordinary business' affairs, and those connected with judicial proceedings. If the holder of an obligation against two, with a surety for both, releases one of the obligors, he thereby, for obvious reasons, discharges the surety; but, if a person becomes surety for two administrators or guardians, and one of them is discharged by court, without the knowledge or consent of the surety, his liability for the official acts of the remaining administrator or guardian still continues. The reason of this is, that the surety, when he entered into the obligation for both, knew, or must be presumed to have known, that the court had power to discharge one, and thus devolve all the duties of the office on the other, and in view of this he consented to the condition that the court might exercise any authority with which it was invested, without releasing him from liability as surety. In Hocker v. Woods’s Ex’rs, 9 Casey 466, the question was as to the liability of the surety for two joint guardians, one of whom was discharged by the court, and it was held that his liability for subsequent acts of the remaining guardian still continued. The distinctive features of a surety’s contract in judicial proceedings are there adverted to, and it is said: “ The Acts of Assembly, under which official bonds are given and judicial contracts are made, enter into and modify such bonds and contracts; and the parties must be considered as .contracting with the view to what the law prescribes, and as assenting to all the legal consequences of their act.” So, in the present case, the plaintiff in error, in becoming surety for the defendants in the actions of replevin, must be considered as having contracted with reference to the law applicable to the trial and final determination of the cases, and with the view of becoming responsible for the amount that might ultimately be adjudged against the defendants.

What has been said has reference only to such amendments as are authorized by the statutes. If a new cause of action is introduced or new parties brought upon the record against whose claim the Statute of Limitations has fully run, and a recovery is permitted, the rule as to liability of the surety would be different.

The conclusion reached by the learned judge in this case was correct.

Judgment affirmed.


author: Mr. Justice Green

text:
    Donaldson versus Commonwealth.
    1. It is an essential constituent of a Court of Oyer and Terminer that not less than forty-eight jurors shall be summoned, to serve as petit jurors, as directed by the Act of April 14th 1834.
    2. Where the precept and venire issued from the Quarter Sessions for only • thirty eight jurors, although the trial proceeded in other respects according to the forms of the Oyer and Terminer, it is void for want of jurisdiction. And it is immaterial that the number of jurors actually returned was not exhausted.
    3. The omission to return the proper number of jurors is fatal to the constitution of the court, and the certificate of a cause from the Quarter Sessions into a court so composed is inoperative to effect the transfer. It is not such a defect, therefore, as is cured by the provisions of the Act of March 31st 1860.
    4. It seems, that where a case is certified from the Quarter Sessions to the Oyer and Terminer the certificate may be filed, nunc pro tunc, after the trial.
    5. Per Green, J. — “ We cannot forbear remarking that, in our opinion, the physician, who on the day after an alleged rape was committed examined the person of the girl, should have been called as a witness and required to testify by the district attorney. Whether his evidence tended to acquit or convict, it was demanded equally by the cause of humanity on the one hand or of justice on the other.”
    May 27th 1880.
    Before Mercur, Gordon, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., and Paxson, J., absent.
    Error to the Court of Oyer and Terminer of Warren county: Of May Term 1879, No. 60.
    Indictment of Irvine Donaldson for rape. The indictment was found in the Quarter Sessions, and the court made an order which was entered on the docket of the Quarter Sessions, that “ this case is certified to the Court of Oyer and Terminer,” but no certificate was filed among the records of the Court of Oyer and Terminer until some time after the trial, when a formal certificate was filed nune pro tune. There was no separate docket of the Court of Oyer and Terminer, but it was the practice to enter the proceedings of said court on the docket of the Court of Quarter Sessions. The judges of the latter court are also, by virtue of their commissions, the judges of the Court of Oyer and Terminer.
    The trial was before Wetmore, P. J., and Connelly and Acocks, A. JJ. The prosecutrix was a girl about thirteen years of age, and although the physician who attended her and examined her person was present at the trial, he was not called by either party.
    The defendant submitted the following point, which the court refused:—
    “ There can be no conviction in this case when the alleged violence was committed on a girl only thirteen years of age, and the physician who examined her the next day was in court during the trial, until the prosecution closed their evidence in chief, and was not called by the Commonwealth to prove that violence had been done to the prosecutrix.”
    The jury rendered a verdict of “ guilty.”
    It was afterwards discovered that the precept and venire had issued for thirty-eight petit jurors, returnable to the Quarter Sessions, while the Act of April 14th 1834, section 118, required that not less than forty-eight petit jurors should be summoned to serve in a Court of Oyer and Terminer. Eor this reason and on the ground that no certificate to the Oyer and Terminer had been filed, the defendant moved in arrest of judgment and for a new trial. A rule to show cause was granted, and after argument discharged, the court holding that although the venire was irregular, yet after a trial on the merits, without objection, the defect was cured by virtue of the Act of March 31st 1860, section 53. After citing Jewell v. Commonwealth, 2 S. & R. 300, and Fife v. Commonwealth, 5 Casey 429, the court, in discharging the rule, said :—
    “ The language of the act is clear and explicit. No verdict in any criminal court shall be set aside, nor shall any judgment be arrested or reversed for any defect or error in the precept issued by the court, or the venire for the summoning or returning of jurors, but a trial on the merits shall be a waiver of all errors and defects in relation or appertaining to the said venire, drawing, summoning and returning of jurors. The defect or error in the present case is in the venire. It should have issued for at least forty-eight jurors.If the defendant had declined to go to trial or moved to quash the array, the trial -would probably have been postponed or the array quashed. But going to trial by the forms and with the challenges allowed in the Court of Oyer and Terminer, we are constrained to the conclusion from the letter of the statute and judicial construction given to the same, that after verdict, it is too late for this objection to prevail.”
    The court further held that under the authority of Brown v. Commonwealth, 28 P. F. Smith 122, the certificate to the Oyer and Terminer nunc pro tunc was properly allowed and sufficient.
    The defendant took this writ and assigned for error, inter alia, that there was no Oyer and Terminer jury, and the court thus constituted had no jurisdiction to try the case; that there being no certificate transferring the case from the Quarter Sessions to the Oyer and Terminer, it was tried in the Quarter Sessions which had no jurisdiction to try such an offence; and the refusal of the defendant’s point.

      R. Brown, for plaintiff in error.
    The 23d section of the Act of March 31st 1860, Purd. Dig. 388, remedies any defect or error in the precept issued from the court or in the venire issued for summoning or returning the jurors, but it does not apply to the case when neither precept nor venire for an Oyer and Terminer jury was issued. The venire was issued under a general order or precept, and for a Quarter Sessions jury, and no venire was ordered or issued for the number of jurors required in the Oyer and Terminer. None of the cases of irregularity cited by the court below apply. The case of People v. McKay, 18 Johns. 218, is analogous, where no venire had ever been issued, and it was held that there was an entire absence of authority in the sheriff and not any default of his which could be termed an irregularity.
    Under the Act of 1860, a formal certificate is absolutely necessary to transfer the case to the Oyer and Terminer, or the latter court does not acquire jurisdiction. No consent can give jurisdiction: Dougherty v. Commonwealth, 19 P. F. Smith 286; Mills v. Commonwealth, 1 Harris 631. The rule in England seems to be that in a charge of rape there is not sufficient proof of penetration to constitute the offence, unless there be positive medical evidence of some sort of violence to the person: 2 Wh. & Stil. Med. J., sect. 279, 3d. The fact that a physician did examine the prosecutrix the day following the offence was committed, in the presence of and at the instance of her mother, after she accused the defendant of the act, and the physician was present in court during the trial, and was not called by the court, under the English rule ought to have acquitted the defendant, and the court should have affirmed the point.

      S. P. Johnson, for the Commonwealth.
    The defendant made all the challenges he wished, and there were other regularly summoned jurors in attendance whom he could have selected. The panel was not exhausted in the selection of the trial jury, and no talesmen were called. The defect was merely a harmless oversight. Whether if discovered it could have been taken advantage of is doubtful: Foust v. Commonwealth, 9 Casey 338. If it was a “defect in or relative to or appertaining to the venire” then the trial was a waiver of it. If the defect in the venire and shortage of jurors is not within the spirit and meaning and even the letter of the fifty-third section of the Criminal Procedure Act, it has failed to accomplish what it aimed at.
    Brown v. Commonwealth, supra, rules the question of the certificate to the Oyer and Terminer. That the physician was present and equally accessible to either party, is admitted, and when the Commonwealth closed its evidence, the defendant’s counsel were openly informed by the district attorney that he did not intend to examine him. The omission to call him was notice that his testimony was not considered valuable for the Commonwealth. Yet after full opportunity to ascertain just what it would be, we came to the same conclusion as to its value on our side. Have not we as much reason to say that their omission to call him was evidence of their client’s guilt as they have to say that our not calling him was evidence of'his innocence. The English rule never did obtain in’ this country, and it is believed no where else, since rape ceased to he a capital crime.
    June 14th 1880.
   Mr. Justice Green

delivered the opinion of the court,

We are of opinion that the first assignment of error is sustained, and the judgment must therefore be reversed. The defendant was tried in the Court of Quarter Sessions for an offence of which that court had no jurisdiction. This alone, however, would not have constituted a sufficient objection to the validity of the trial and sentence, after a verdict and after a certificate of the cause into the Oyer and Terminer. Had there been a legal and actual Court of Oyer and Terminer in session at the time the case was tried, we should have held the subsequent certificate of the cause into that court nunc pro tuno as sufficient, upon the authority of Brown v. Commonwealth, 28 P. F. Smith 122. But in point of fact there was no legally constituted Court of Oyer and Terminer in session, or capable of sitting at the time of the trial. The Act of 14th April 1834, sect. 113, provides that “the number of persons who shall be summoned and returned, as aforesaid, to serve as petit jurors in any Court of Oyer and Terminer, shall not be less than forty-eight nor more than eighty, and in any other court of criminal jurisdiction not less than twenty-four nor more than sixty.” Now to summon thirty-eight jurors to serve in a Court of Oyer and Terminer is not a mere defect or irregularity in the venire. Without a panel of forty-eight jurors, summoned and returned for service, an essential constituent of that court is wanting. If a panel of thirty-eight would be a sufficient compliance with the law we see no reason why a number still less would not suffice. The defect, or omission rather, is fatal to the constitution of the court, and hence the certificate of a cause from the Quarter Sessions into a court so composed, is inoperative to effect the transfer. This consideration distinguishes the present case from all those cited by the learned judge of the court below. We hold, therefore, that there' was no valid trial and sentence, and must reverse the judgment for that reason. This decision makes it unnecessary to consider the other errors assigned. We cannot forbear, however, remarking that, in our opinion, the physician who, on the day after the occurrence, examined the person of the girl upon whom the offence was alleged to have been committed, should have been called as a witness and required to testify by the district attorney. Whether his evidence tended to acquit or convict, it was demanded equally by the cause of humanity on the one hand, or of justice on the other. We say this more especially because there was no direct evidence of the factum of the crime, and no proof of actual penetration, the prosecutrix having testified that she was insensible and had no knowledge of what took place. We do not reverse for this reason, and do not sustain the fifth assignment of error, which raises the question, but merely express our opinion as to what should have been done in the peculiar circumstances of this case.

Judgment reversed, and venire facias de novo awarded.


text:
    Shillingford versus Good, Trustee, &c.
    1. On December 7th 1869, II. leased a coal tract to S., at a fixed royalty.
    S. commenced to mine, rendered monthly statements, and paid the royalty until the death of II., in September 1873. II. devised his real estate, including the leased tract, to his three daughters, “the coal lease thereon to remain in the hands of my trustee * * * until all the legacies in this will are paid and the terms of leases expired.” In November 1873, S. alleged that he had mistaken the true division dine between the II. tract and an adjoining one and had mined about ten acres on the latter tract and erroneously paid royalty therefor, and refused to pay any further royalty until reimbursed. To settle these differences, on the 11th July 1874, an agreement was executed fixing the boundary line and exchanging two tracts of coal land. In this agreement certain married women joined without acknowledgment. After the death of IT. it was alleged that S., almost from the commencement of his lease, had, by false weights, measures and certificates, systematically defrauded H„ and after the death of the latter his trustee brought suit. Held, that he was the proper party to sue for and was entitled to recover the royalty which had accrued before as well as after his testator’s death.
    2. The monthly returns, which purported to be correct statements of the coal mined each month, g,nd payments thereon, received without objection, in the absence of full and satisfactory evidence of fraud or mistake, were conclusive.
    3. S. alleged that the agreement of July 11th 1874 did not establish the division line in dispute, and that the married women were not bound by the conveyance, nor by the division line alleged to have been established by said agreement. Held, that said agreement was inoperative as a conveyance of land, because it lacked the required acknowledgment, yet, if fairly procured, it was evidence of a settlement of the disputed boundary line.
    4. There is nothing in the law which forbids or prevents a married woman from settling a disputed boundary line without a formally acknowledged conveyance. Such an agreement is not a conveyance, but an admission of a fact.
    5. It made no material difference that some of the misrepresentations complained of, whereby it was alleged the agreement was fraudulently procured, were made long before the agreement was signed. It is enough if their effect continued and was operative at the time it was signed: Stubbs v. King,
    14 S. & It. 206, followed.

      May 27th 1880.
    Before Mercur, Gordon, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., and Paxson, J., absent.
    Error to the Court of Common Pleas of Huntingdon county: Of May Term 1879, No. 182.
    Covenant brought September 19th 1877, by Dr. D. R. Good, trustee under the will of Dr. Daniel Houtz, deceased, against H. H. Shillingford, to recover royalty on bituminous coal mined by the defendant under a lease executed by Houtz to Shillingford, dated December 7th 1869. The defendant pleaded “covenants performed.”
    Under the terms of the above-mentioned lease, certain coal lands in Clearfield county, Pennsylvania, which were known as the Bickham, Howell and Johnston tracts, were leased “ for the purpose of mining, shipping and transporting coal from said lands, or other lands owned and operated by the party of the second part, his heirs and assigns, with the use of timber for mining purposes.”
    In consideration whereof, Shillingford agreed to proceed within thirty days to explore and prove the coal in said lands, “ and when the mines shall have been opened and all necessary improvements made at the cost of the party of the second part, to operate the same in a proper and workmanlike manner,” and pay a royalty of fifteen cents per gross ton.
    Shillingford commenced to ship coal in January 1871. As it came from the mines the coal was weighed on his own scales by a weighmaster of his own selection. Erom time to time, until the death of Dr. Houtz, the defendant rendered monthly statements of the amount of coal mined; each statement being accompanied with a check for the amount of the royalty thereon.
    On September 20th 187 3, Dr. Houtz died, leaving a will, which provided, inter alia, as follows :
    “ I give and bequeath to my three daughters, Hannah E. Brisbin, Eliza B. Good and Clara H. McAteer, jointly, and their heirs and assigns, all my lands in Woodward township, Clearfield county, Pennsylvania, namely: The Samuel Emlin tract, the Chandler farm, the Philip Loast, William Johnston, Jacob R. Howell and George Bickham tracts, * * * all equally and jointly, the coal leased thereon to remain in the hands and care of my trustee, together with my L. & A. Morrison paper maturing, until all the .legacies in this will are paid, and term of leases expired.”
    After the death of Dr. Houtz, Shillingford refused to pay the royalty until it should be legally determined whether it should be paid to his executors or the trustee under his will. A case stated was submitted to the court below, and in an opinion filed February 19th 1874, it was decided that the royalty was payable to the trustee.
    The plaintiff, Good, alleged that between December 7th 1869 and July 15th 1877, Shillingford had mined and shipped from said land 718,275 tons of coal of 2240 pounds each, the royalty on which amounted to $107,421.25, but that he had only accounted for 279,727 tons, the royalty upon which was $41,959.05, and that he had, therefore, failed to account for 438,548 tons, or to pay the royalty thereon, amounting to $65,728.20. On behalf of the plaintiff evidence was offered to show that a system of frauds had been adopted in weighing and measuring the coal mined and in accounting therefor. The estimates of engineers as to the quantity of coal mined were widely different.
    When the lease was executed Shillingford was president of the Moshannon Land and Lumber Company which owned the Thomas Edmundson tract, immediately adjoining the tract leased to him by Dr. Houtz. In November 1873, Shillingford claimed that he had discovered that the true division line between said tracts was not as supposed, and that he had mined about ten acres of coal from the Edmundson tract and paid royalty thereon. He therefore refused to pay any more royalty until he was reimbursed for the coal thus mined. An agreement was then entered into, of which the following are the* material portions:

      “ Office of the Kittanning Coal Co.,
    July 11th 1874.
    “ Whereas, There is now or appears to be, as between the Moshannon Land and Lumber Company, and the. heirs of Dr. D. Houtz, deceased, a difference as to the division, .line between the said parties, known as the line of the Thomas^E'dmundson tract: Beginning at a pine tree and running north. 46° 26' east to a post, which is the northeast boundary line betweeñ the estate of Dr. D. Houtz, deceased, and the Moshannon Lapd and Lumber Company.
    “ And, whereas, The Kittanning Coal- Company have purchased from said Moshannon Company, alkthe^ coal right of said Thomas Edmundson tract, and also have leasefii-ffipm the said Dr. D. Houtz, in his lifetime, the coal on his lands (Howell and Biekham tracts).
    “ Now, therefore, We, the parties to the agreement, the said heirs of Dr. D. Houtz, deceased, viz.,-D.-B. Good, and Eliza B., his wife, George M. Brisbin, and Hannah E., his wife, and H. J. McAteer, and Clara, his wife, and the Kittanning Coal Company, by their general manager, J. B. Cameron, do. agree to exchange a certain number of acres of land upon condition as follows:” * * * Then follows an agreement by which the Kittanning Coal Company agrees to pay for coal min'ed‘4m Edmundson tract (10 acres and 38 perches), and in consideration thereof the heirs of Dr. Houtz agree to survey to the coal company 10 acres and 38 perches of their (Houtz) property, and that the agreement shall for ever settle the differences between the parties, not affecting the right as to true lines on the surface as between the Houtz heirs and the Moshannon Land and Lumber Company.

      It was alleged by the plaintiff, and evidence was introduced to show, that the above agreement was obtained by misrepresentation, suppression of the truth, falsehood and fraud, and was, therefore, void.
    The defence alleged that this agreement established the line between-the Edmundson and the Houtz tracts. The plaintiff on the contrary claimed that the single purpose of the agreement was to exchange ten acres and thirty-eight perches of land; that if the claim of the defendant was to prevail the heirs of Ur. Houtz had surrendered title to twenty-three acres of coal in the very heart of their land, worth, at that time, at least $23,000, and this, too, without a dollar of consideration, and without ever having the pretended new line run. The plaintiff contended, that a fair construction of the language of this agreement did not change or fix the true line between the tracts; that if the legal effect was to fix the real division line, then, that it was inoperative as a binding agreement upon the married daughters of Dr. Houtz, not having been acknowledged and that if otherwise binding it was void, as alleged above, for the reason that it was procured by misrepresentation and fraud. The various questions raised will be found in the assignments of error set forth below. The verdict was for plaintiff for $29,034.25. After judgment thereon defendant took this writ and alleged that the court, Dean, P. J., erred as follows:
    1. In admitting testimony under the following offer: Plaintiff proposes to prove by the witness that he was employed as clerk and weighmaster by the person or company operating the Eranklin colliery, opened on the land covered by the agreement between Dr. .Houtz and II. II. Shillingford, defendant, already in evidence, from 1871 to 1875, and that false weights were used in weighing the coal mined and shipped, and that large deductions were also made from the quantities of coal mined, and that the reports made thereof to Dr. Houtz and to his trustee, the plaintiff, were false and of a much less number of tons than was actually mined and shipped, and that the said false weights were used and the said deductions made by direction of the general superintendent of the mine.
    Defendant objected to any proof of deductions or any other proof affecting the quantity of coal mined prior to November 1873, the date of the death of Dr. Houtz, the trustee, plaintiff, not being entitled to rents accrued before the death of the testator. Evidence admitted.
    2. In refusing defendant’s first point: “ The plaintiff is not entitled to recover from the defendant for any alleged breaches of covenant prior to the death of Dr. Houtz.”
    3. In charging : “ The legal title to the coal leases and all money due upon them at the time of the testator’s death, passed in our opinion to Dr. Good under these provisions of the will as fully as if Dr. Houtz had assigned them to Good in'his lifetime. They gave to the trustee the custody of the leases and the management of the estate in them for the uses specified in the -will, so that in this action the plaintiff is in our opinion the proper- party to sue for any balance due for d'oal mined, whether the coal was mined in the lifetime of Dr. Houtz and not paid for, or has been mined since.”
    4. In charging: “This agreement” (theagreement of 11th July 1874) “is utterly void so far as it purports to convey ten acres of coal land in exchange for ten acres of other coal land, and such land being the separate estate of married women, it could not be conveyed without a separate acknowledgment on their part.” * *'* The law treats the conveyance of a married woman, not separately acknowledged by her before a magistrate, a judge or justice of the peace, as absolutely void. The defendant cannot refuse payment for any coal mined on the ten acres; which was to be given him in exchange for that alleged to have been paid for by him while mining on land not the plaintiff’s ; but if he mined over the line on his own land, and paid for the coal so-mined, he must be allowed a credit therefor on an* balance that may be yet due.
    5. In refusing defendant’s eighth point: “There is no evidence of fraud in the procurement of the' agreement.of the 11th July 1874, to be submitted to the jury.”
    6. In charging: “A fair construction of the agreement, it seems to us, must treat the Gwin line as the line of the Edmundson; and were there no evidence here as to the manner in which these signatures were obtained, it would conclusively establish the Gwin line as the line of the Edmundson.” * *\* “If the case is with the defendant in this particular, i. e., if the agreement was not obtained by fraud, then you need not inquire further as to the location of the line on the ground. The -Gwin -line must be taken as the line.” -
    7. In admitting evidence under the following offer: Plaintiff proposes to show that the witness was -the acting representative>of the Houtz heirs, and that the agreement of 11th July 1874 was brought to him by Lawshe and Catiferon, the agents and superintendents of the Kittanning Coal/Companyj'with the statement and assurance that it did not change or affect the Jines of the Houtz lands beyond the exchange of the ten acres therein provided for, that before any of the parties signed it the witness had the last sentence added to the agreement to express more clearly, as he thought, the declared purpose and effect of the paper, and that upon the assurance so made the paper was .signed ; this offer for the purpose of contradicting J. ÍJ. Cameron, witness for defendant, and also for the purpose of defining the subject-matter of the paper and explaining the ambiguity appearing on- its face.
    8. In charging: “But if Cameron and Lawshe, or either of them, had procured the Gwin survey, had knowledge of the course and distance of the line north forty-six degrees twenty-six minutes east three hundred and twelve perches, and the others had not such knowledge, and if they or either of them represented to Brisbin that this line was the line as laid down on the Houtz map, and thus by a false representation on which Brisbin relied, not knowing the true bearing of the line, tricked him and the others into signing the agreement, and then attached to it a map which showed the true location of the line to the land, the plaintiff would not be bound by the line in the agreement.”
    9. In admitting the evidence of H. «7. McAteer, under the following offer:—
    Plaintiff proposes to show by the witness, that Mr. Brisbin communicated to him, prior to the signing of this paper (the compromise agreement of July 1874), what Mr. Cameron and Lawshe had said, as to the purpose of the paper, and what was to be accomplished, and upon the faith of such communication, the witness and his wife signed the paper.
    In admitting evidence under the following offer: Plaintiff proposes to prove by the witness that she is the wife of H. J. McAteer, and daughter of Dr. D. Houtz, deceased; that she signed the paper of July 12th 1874; that it was not read to her, nor its contents made known, and that she has no knowledge whatever of the lines of the laird therein referred to (and that there was no map to the paper when she signed it).
    11. In charging: “ If this agreement was signed for the purpose of settling a disputed boundary, with the map attached or present when it was signed, it binds these pai’ties, and although the agreement on its face does not necessarily disclose the exact location of the line, the agreement and the map put it beyond question.”
    13. In refusing defendant’s" third point:—
    “ The Kittanning Coal Company having entered into the possession of the coal leased to H. H. Shillingford, w'ho was president of said company, and they having made the improvements and opened the mines as lessees of Dr. Houtz, and all the rent which was paid having been paid by said company, and settlements and compromises having been made by them as tenants of the plaintiff, facts inconsistent with the continuance of the defendant’s tenancy, there can be no recovery against defendant for non-payment of rent by the Kittanning Coal Company.”
    15. In charging: “ The plaintiff claims that he has, by the most indubitable evidence, established the fact that from the time the mines were opened, in February 1871, down .to the commencement of this suit, there was practised upon Dr. Houtz in his lifetime, and upon him since his death, a fraud which infected the returns or nearly all the returns made. * * * If the case is with the plaintiff in this particular, if he has proven such fraud as warrants you in going behind the monthly returns, then you would ascertain from the evidence what quantity of coal was mined and shipped under the lease from the land leased.”'

      S. S. Blair, J. M. Bailey and William Dorris, for plaintiff m error.
    The plain and obvious meaning of the agreement was an adjustment of a rent account. The representatives of Dr. Houtz did not convey, or attempt to convey, land or coal, for by virtue of the lease from Houtz, the Kittanning Coal Company already owned the coal, and the only right the trustee had was to the price of it. It was not, then, an unacknowledged conveyance of land by a married woman. The rent or price of the coal was personal, and at their disposal without acknowledgment, their husbands joining'and consenting: Bond v. Bunting, 28 P. F. Smith 210; 2 Rop. Husband and Wife 184; Wright v. Brown, 8 Wright 224. An acknowledgment of the agreement was not necessary: Fryer v. Rishell, 3 Norris 521. It was a consentable line, the establishment of which is not governed by the Statute of Frauds and Perjuries, even if it had been a boundary of land, and the agreement had not been, as already shown, a mere settlement of a rent account: Bowen v. Cooper, 7 Watts 311; Kellum v. Smith, 15 P. F. Smith 86 ; Hagey v. Detweiler, 11 Casey 409.
    The right of action on the contract for all breaches prior to the death of Dr. Houtz was in his executors, and the trustee could not sue: Bac. Ab. “ Ex. and Ad.,” 81; Bank of Pennsylvania v. Wise, 3 Watts 399 ; Cobel v. Cobel, 8 Barr 343 ; 2 Williams on Ex’rs., *700 (5 Am. ed.); Haslage v. Krugh, 1 Casey 97; 1 Chitty’s Pleading 214, 229.
    A. Bruce Petrikin and A. M. Speer, for defendant in error.
    As an unacknowledged agreement for the sale or exchange of land, the paper of 11th July 1874, is inoperative against the married daughters of Dr. Houtz: Miltenherger v. Croyle, 3 Casey 170; Rumfelt v. Clemens, 10 Wright 455; Kirk v. Clark, 9 P. F. Smith 479. A married woman has no capacity to contract for the Sale of her land or to convey it, except in the precise statutory mode: Glidden v. Strupler, 2 P. F. Smith 400; Graham v. Long, 15 Id. 383; Moore v. Cornell, 18 Id.: 320; Bond v. Bunting, 28 Id. 210 ; Railroad Co. v. Burson, 11 Id. 369. Fryer v. Rishell is distinguishable from this case.
    It seems to have been the clear 'intention of Dr. Houtz, in appointing a trustee, to commit to him the .care and management of all his coal lands, including the leases and their royalty, whether accrued or not, and the proceeds of the timber upon the land. This part of his estate he wholly withdraws from the dominion of his executors; provides for the payment by his trustee of several legacies from its income, and when this shall have been done and the leases shall have expired, the trust shall cease.

      October 4th 1880.
    Nor can the affirmance of this judgment prejudice the beneficiaries under the will. After the payment of the specified legacies by the trustee, the balance goes to the three daughters, and it makes no difference to them whether it be recovered in the name of the trustee or the executors. They cannot sue in their own names.
   Mr. Justice Sterrett

delivered the opinion of the court,

The single question raised by the first three assignments of error is whether the trustee named in the will of Dr. Houtz can maintain an action on the contract for such breaches as are alleged to have occurred in the lifetime of the testator. As to those that occurred since his decease, it is conceded the trustee had a right to sue, but the defendant below contended that if any right of action accrued before, it vested exclusively in the executors; and in his first point the court was requested to charge that “ the plaintiff is not entitled to recover from the defendant for any alleged breaches of covenant prior to the death of Dr. Houtz.” The learned judge admitted testimony as to the prior breaches and refused the instruction prayed for.

By the contract of December 7th 1869, on which the action is based, Dr. Houtz, the party of the first part, agreed to lease certain tracts of land therein described to Mr. Shillingford, the defendant below, “for the purpose of mining, shipping and transporting coal from said lands and other lands owned and operated by the party of the second part, his heirs and assigns.” In consideration whereof, Shillingford agreed “ to proceed within thirty days to explore and prove the coal in said lands, and when the mines shall have been opened and all necessary improvements made, at the costs of the party of the second part, to operate the same in a workmanlike manner and pay for all coal mined and shipped from said tracts a royalty of fifteen cents per gross ton of twenty-two hundred and forty pounds.” The agreement is silent as to the time within which the coal is to be taken out as well as the quantity to be mined within any given period, and no time is fixed for the payment of the “royalty,” but by their subsequent dealings, the parties treated it as payable monthly. After the mines were opened, monthly returns and corresponding payments were made to Dr. Houtz until his decease in November 1873. By his will, dated July 8th 1872, Dr. Houtz devised all his lands in Woodward township, Clearfield county, including the lands above mentioned, to his three daughters, and as to the coal contract with the defendant below, he directed as follows: “ The coal leased thereon to remain in the hands and care of my trustee, together with my L. & A. Morrison paper, maturing, until all legacies in this will are paid and term of leases expired.” The legacies referred to aggregate over $160,000, including $50,000 to each of his daughters. As to some of the legacies and bequests contained in the will, the trustee is specially clothed with powers and duties which would otherwise belong to the executors. The testator manifestly intended that the duty of executing some of. the provisions of his will should devolve on the executors and others on the trustee named by him; and if it can be fairly gathered from the will that, for all purposes connected with the trust, it was the intention of Dr. Houtz to commit his entire interest in the coal contract to the control and management of the trustee, and thus invest him with all the rights and powers pertaining thereto, which he himself possessed, there can be no doubt that the trustee was the proper party to sue for breaches which occurred before as well as after the testator’s decease. This is substantially the construction put upon the will by the learned judge of the Common Pleas, who instructed the jury that the legal title to the coal leases and* all money due upon them at the time of the testator’s death, passed under the provisions of the will to Dr. Good, the trustee, who thereby acquired the right to the custody of the leases and the management of the estate in them, for the uses specified in the will, and consequently he was the proper party to. sue for any balance due -for coal mined, whether in the lifetime of Dr. Houtz or since. While the construction thus given to the will may not be entirely free from doubt, we think it is correct. It is certainly not in conflict with any of the provisions of the will; on the contrary, it harmonizes with all of them better than the construction contended for by the defendant below. In addition to this, the objection is purely technical, and cannot affect the merits of the case as to either party. If the defendant below is liable for breaches of the contract, it can make no substantial difference to him whether he answers to the trustee for the whole of the damages, or to the executors for a part, and to the trustee for the residue. The executors concede to the. trustee the exclusive right of action, and by writing filed in the case, have agreed, in case the judgment is affirmed, “to release and .relinquish to the said defendant, his executors or administrators, any right Or supposed right which they now have or ever had, ..to sue for, recover or receive any sum or moneys for any breaches 'of the covenants of said agreement.” The defendant below is-thus amply protected against any claim or suit by or in behalf of the executors. We discover nothing in the assignments relating to the right of action that would justify a reversal, after a full, and fair trial on the merits.

The plaintiff’s testimony, if believed by .the jury, uncovered and exposed to full view repeated if not continuous acts of deception and fraud of a gross character in making up and rendering accounts of the products of the mines. The testimony on this subject was fairly presented and submitted to the jury with well guarded instructions. They were told that the monthly returns — purporting to be correct statements of the coal mined each month — which were received without objection and payments made thereon, were in the nature of settlements by the parties; and, in the absence of full and satisfactory evidence of fraud or mistake, they were conclusive; that “if there was any irregularity or cause of complaint, at the time of these monthly returns and payments, it was the duty of the plaintiff to then make known his objections, or he is concluded by the original amounts as fully as if a formal and final settlement of accounts had been made at the end of each month. To get behind these returns now the plaintiff must, by clear and indubitable evidence, prove that these returns were false and fraudulent.” The main question of fact was thus submitted in terms quite as favorable to the defendant below as he could reasonably ask.

When considered in connection with the context, there is no error in that portion of the charge embraced in the fourth assignment. The agreement of July 11th 1874, therein referred to, was offered and admitted “for the purpose of establishing the line claimed by the defendant as the division line of the coal on the Edmundson and Howell tracts.” While the learned judge properly held that the agreement was inoperative as a conveyance of land for want of the required acknowledgment, he recognised its effect, if fairly procured, as evidence of a settlement of the disputed boundary line by saying, in the same breath, that “ there is nothing in the law which forbids or prevents a married woman from settling a disputed boundary line without a formally acknowledged conveyance.” Proper effect was given to the agreement, and the questions of fact relating to the true location of the division line between the Edmundson and the Howell tracts, were fully and fairly submitted to the jury.

The fifth to the twelfth assignments inclusive relate to the question of fraudulent procurement and use of the agreement of July 1874, so far as it was claimed to be a settlement of the division line, and the submission of that question to the jury. The' plaintiff below recognised the validity of the agreement, as an exchange of the triangular piece of coal on his side of the line for a corresponding amount of coal alleged to have been mined on the other side and paid for by mistake; but he contended that it never was the purpose of the agreement to change or establish the location of the line; that, on the contrary, the parties who acted in the interest of the defendant below, in procuring its execution, expressly disclaimed any such object. Without referring specially to the several items of testimony on this branch of the ease, it is sufficient to say that it tended to sustain the position of the plaintiff below and to prove that the agreement, so far as it is now claimed to be a binding settlement of the disputed boundary line according to the course and distance therein specified, was artfully and deceitfully obtained. There can be no question .that the testimony was competent and sufficient to carry the question of fraudulent procurement to the jury. It makes no material difference that some of the misrepresentations complained of were made long before the agreement was signed. If their effect continued and was operative at the time the agreement was signed, it is enough. In Stubbs v. King, 14 S. & R. 206, it is said, “ Where a continued misapprehension of material facts has been induced on the part of the one by the misrepresentations of the other, it is 'obvious that the execution of the writing ought not to extinguish the right of the injured party to show the fraud by which his assent, to the contract was obtained.”

The remaining assignments are not sustained.

Judgment affirmed.