text:
    Murphy versus Borland.
    1. A widow has a right to distrain for her dower, and she has the further right to avail herself of the common-law rule, that the goods of a stranger upon the demised premises are liable to be distrained for rent in arrear.
    2. A distress was for the sum of $625, being the dower for one-quarter chargeable upon a particular property, and was made upon a tenant of a portion of the premises who rented the same from the devisees of the widow’s husband for $1500 per annum. It was claimed by the tenant that the widow was only entitled to distrain upon his goods for the amount of rent he was to pay his landlords, viz.: $375 for the quarter, and the court sustained this contention. Held, that this was error and that the widow was entitled to distrain for all the dower which had accrued.
    November 7th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunket, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 283.
    Replevin by Joseph H. Borland against Thomas H. Murphy, for a lot of shoes, upon which the latter had distrained as the bailiff of Mrs. Margaret McClurg.
    Mrs. McClurg filed a bill in equity at December Term 1874, praying that her dower in the estate of her late husband, Alexander McClurg, might be awarded to her. On January 12th 1876, a decree was made, fixing her dower at $3000 per annum and charging $2500 per annum thereof on certain property on Eifth avenue, in the city of Pittsburgh, payable quarterly. Her dower having fallen in arrear, she distrained for the quarter ending December 31st 1876 ($625), and levied upon goods of Joseph H. Borland, the plaintiff below, which were found on the premises. Borland was in possession as the tenant of the children (who were the only devisees) of Alexander McOlurg. He sued out a writ of replevin, to which Murphy filed his cognisance, justifying the taking as the bailiff of Mrs. McClurg.
    At the trial, before Bailey, J., it was proposed on behalf of plaintiff to show that Borland became the tenant of part of the McOlurg property on Fifth avenue, the latter part of June 1875, at a rent at the rate of $1500 per annum, and that the tenancy continued until July 1877, when he quit the premises; that the demise to him was by the children and devisees of Alexander Mc-Olurg, through their agent E. J. Allen; that the first distress by Margaret McOlurg for dower was levied upon the plaintiff’s goods, namely, his stock of shoes, on the 15th December 1876 ; that prior to that date the plaintiff had paid his rent in full to the first of December 1876 ; that the second distress for Mrs. Mc-Olurg’s dower was made in January 1877, and yet a third distress in May 1877 ; that all the plaintiff’s rent which accrued after the first day of December 1876, and down to the time of the termination of the tenancy, July 1877, was needed to pay the dower embraced in the first distress, and was so applied.
    Defendant objected, on the ground that Murphy made the distress and levied upon the goods because he found them on the premises, subject to the charge of dower, and therefore it was wholly irrelevant in what relation Borland stood to the McOlurgs, whether as tenant or otherwise, or whether there was such rent due as would pay the arrearages of dower, or there was any rent due, Mrs. McClurg having an undoubted right to levy upon any goods that she found there, and sell them, unless interfered with by some proceeding in discharge of her claim for dower.
    The court overruled the objection and admitted the evidence. (First assignment of error.)
    The plaintiff then offered in evidence the petition of Mrs. Mc-Clurg, filed at December term 1874, praying for the appointment of a sequestrator ; and the decree of the court making said appointment ; to be followed by evidence, that said sequestrator had paid Mrs. McOlurg out of the rents of said property, a sum in excess of all the arrears of dower embraced in the several distresses against the plaintiff, and more than sufficient to pay all her dower until the Borland tenancy ceased.
    The defendant objected. First, on the ground that the decree of court, appointing the sequestrator, directs the payment of the rents and income of the property to the dower and arrearages of dower; and,
    Second, if no appropriation had been made of the income of the property, by tbe court, then the application that the law would make would be in favor of the creditor, Mrs. McOlurg, and for her exclusive benefit; that where there were two funds, one of which was unsecured and the other secured, the law, in her favor, would apply any payments made by the sequestrator to the unsecured fund, being the arrearages of dower that accrued, due after these distresses were made.
    The court overruled these objections and admitted the evidence. (Third assignment.)
    The first point of the defendant, with the answer of the court thereto, was as follows: 1st. It is immaterial what amount of rent, or whether any, was due from Borland, as the tenant of the devisees of Alexander McOlurg, to the said devisees, at the time Mrs. McOlurg distrained his goods for her arrears of dower.
    ' Ans. “ The effect of this point is to rule that if Mr. Borland’s rent was $375 a quarter, and the amount due Mrs. McOlurg $625 a quarter, that notwithstanding the agreement on the part of Mr. Borland to pay $375, he could be levied on every quarter for $625, and be compelled to pay it. That point is refused. I do not understand that to be the rule.” (Fifth assignment.)
    In the general charge, the court, inter alia, said: “ The seventh point of the defendant is refused. This would authorize you to find $625, which I do not mean you to find at all. I mean you have a right to find Mrs. McOlurg is entitled to rent from Mr. Borland for three months, at the rate of rent which Mr. Borland was bound to pay to the landlord, which is, as I understand it, $375.” (Eighth assignment.)
    The jury, under instructions from the court, rendered a verdict that there was due Mrs. McOlurg $375, with interest from January 1st 1877.
    Murphy then took this writ and alleged, inter alia, that the court erred as set forth in the above assignments of error. (See the following case of Boland v. Murphy, post, p. 91.)

      J. M. Stoner and George P. JTamilton, for plaintiff in error.—
    It is submitted that the court below misapprehended the principles that rule the case at bar. Mrs. McOlurg distrained the goods of Borland because she found them on the premises that were charged with her dower, and her bailiff seized them as he would have done the goods of any one found there. Borland was a stranger as to her; and the proof as to the amount of rent that he agreed to pay, or had paid, to the McOlurg devisees for the property, was wholly irrelevant. The rule of the common law, that the goods of a stranger upon the demised premises are liable to be distrained for rent in arrear, is the settled law of this state: Kessler v. McConachy, 1 Rawle 435; Adams v. La Comb, 1 Dall. 440; Scott v. McEwen, 2 Phila. R. 176; Sleeper v. Parrish, 7 Id. 247; Karns v. McKinney, 24 P. F. Smith 387. Even the separate property of a married woman may be distrained for rent due by her husband: Blanche v. Bradford, 2 Wright 344.

      M. W. Acheson and S. 0. Sehoyer, for defendant in error.—
    Mrs. McClurg having suffered the children and devisees of Alexander McClurg, through their agents, to lease the property and manage it generally, we submit that it is against all justice and right to permit her to vex and harass Borland by distress warrants, and compel him to pay $1250 in excess of the rent due by him.
    The right of distress in case of a widow is a purely statutory remedy. We by no means contend that the decree in equity did not finally fix the widow’s dower and make it a charge on the Fifth avenue property, What we contend is this, that the decree of the court was not to be enforced by distress. The writ of sequestration is an appropriate and ample remedy, and one which avoids injustice and oppression to the tenants.
    In the per curiam opinion of this court, in the case of Borland v. Murphy, 4 W. N. C. 472, the right of the widow to distrain, is declared to be not free from doubt. After all, was not her true remedy by writ of sequestration ?
   Mr. Justice Paxson

delivered the opinion of the court, November 17th 1879.

The right of Margaret McClurg to distrain for her dower was settled in a former action of replevin between the same parties : Borland v. Murphy, 4 W. N. C. 472. The doubt expressed in the per curiam opinion was perhaps personal to the writer, and must'not be accepted as interfering in any degree with the stability of that decision.

While there are several assignments of error there is really but one question. The distress was for the sum of $625, being the dower for one quarter, chargeable upon this particular property, and was made upon the goods of a tenant of a portion of the premises, who rented from the devisees of Alexander McClurg for $1500 per annum. It was claimed by the plaintiff that Mrs. McClurg was only entitled to distrain upon his goods for the amount of rent he was to pay his landlord. On the other hand the defendant contended that it was immaterial what amount of rent, or whether any rent was due from the plaintiff Borland, to the devisees of Alexander McClurg at the time Mrs. McClurg distrained his goods for her arrears of dower. This is the substance of the defendant’s first point (see 5th assignment), and was answered by the court as follows: “ The effect óf this point is to rule that if Mr. Borland’s rent was $375 a quarter, and the amount due Mrs. McClurg $625 a quarter, that, notwithstanding the agreement on' the part of Mr. Borland to pay $375, he could be levied on every quarter for $625, and be compelled to pay it. That point is refused. I do not understand that to be the rule laid down in the case 1 have already referred to.” The learned judge repeated this ruling in a more emphatic manner in his answer to the seventh point (eighth assignment). This was error. Mrs. McClurg had nothing to do with the renting of the property, and was in no way responsible for any arrangements made in regard thereto. She had the right to distrain for her dower as established, and charged upon this property by the decree of the Court of Common Pleas; and she had the further right to aváil herself of the common-law rule that the goods of a stranger upon the demised premises are liable to be distrained for rent in arrear. That this rule prevails in this state has been frequently decided. I note only the cases conveniently at hand: Adams v. La Comb, 1 Dallas 440 ; Kessler v. McConachy, 1 Rawle 434; Karns v. McKinney, 24 P. F. Smith 387. And the goods of a tenant’s wife, found on the demised premises, are liable to distress for rent in arrear though they are her separate property: Blanche v. Bradford, 2 Wright 344. Borland was a stranger to Mrs. McClurg; his goods were found upon the premises charged with the payment of her dower, and were liable to a distress therefor. We have nothing to do with the hardship of the case, if there be any, which is by no means clear. Borland voluntarily remained upon the premises after the former distress. If he chose to do so and fight the battle of the heirs without being indemnified by them, it furnishes no just ground of complaint now.

The evidence referred to in the first and third assignments was improperly received. The terms of Borland’s tenancy did not in any manner interest or affect Mrs. McClurg; and the proceedings on the appointment of a receiver on her application were equally irrelevant. It would have been competent t'o show payment of the particular dower-money embraced in this suit, but that was not attempted.

None of the other assignments requires discussion.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Paxson

license: Public Domain

text:
    Borland versus Murphy.
    Under an order of sequestration certain rents were to be applied to a widow’s dower. The payments made by the sequestrator were on account of the dower generally, without appropriation to any particular portion of it. It was claimed that the payments must be applied to that portion first due. Held, that the payments should be appropriated in the way most beneficial to the widow and to that portion of the dower least secured.
    November 7th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 287.
    Replevin by Joseph H. Borland against Thomas J. Murphy, for a lot of shoes.
    On the 21st of November 1874, Mrs. Margaret McClurg, widow of Alexander McClurg, deceased, filed a bill in equity in the Court of Common Pleas, against the children of her late husband (who were his devisees) and others. She alleged, inter alia, that the defendants, or some of them, held the legal title to certain real, estate, of which the said Alexander was the equitable owner at his death; and that in his lifetime, real estate, the legal title to which was in some of the defendants, had been sold, in fraud of her dower rights, &c.
    On the 12th of January 1876, by the agreement of the parties to said suit, a decree was made therein fixing the dower of Margaret McClurg, in the real estate of her deceased husband, at $3000 per annum; and $2500 of this annual sum was charged upon certain ground fronting on Fifth avenue, in the city of Pittsburgh, the same to be payable quarterly. Upon this Fifth avenue property, were erected separate business stands occupied by several tenants. Joseph H. Borland was one of these tenants, he occupying one store room, in which he carried on the boot and shoe business. Borland’s tenancy commenced the latter part of June 1875, and terminated July 1877. The children and devisees of Alexander McClurg, employed one Marquis to take charge of the property ; to lease it, collect the rents, pay taxes, &c. Afterwards, E. J. Allen succeeded Marquis in the agency. Borland rented originally from Marquis as the agent of the McClurgs. His annual rent was $1500. There was no express understanding as to when it was payable, but it was demanded and paid monthly. Borland paid his rent in full up to December 1st 1876, to Marquis and Allen, the agents of the McClurgs. On December 15th 1876, Mrs. McClurg issued a warrant of distress for arrears of her dower, amounting to $875, and a levy was made upon Borland’s stock of goods. He issued a writ of replevin. The case terminated in a verdict and judgment against Borland, for the whole of the above sum with interest. That judgment having been affirmed by this court in the fall of 1877, Borland paid the same to Mrs. McClurg. This payment, with those he had made before the distress, paid his entire rent for the whole period of his tenancy. Immediately after the 1st of January 1877, Mrs. McClurg issued a second warrant of distress for her quarter’s dower, which became due January 1st 1877, viz., $625, and again levied on Borland’s goods. He issued a writ of replevin, out of which grew this suit. In May following, Mrs. McClurg issued a third warrant of distress for her quarter’s dower, and a third time levied on Borland’s goods. In November 1877, she presented a petition to the Court of Common Pleas, praying that a sequestrator might be appointed “ to collect the rents of said Eifth avenue property, and after paying thereout the taxés, repairs and any other proper charges against said property, to apply the residue or so much of it as may be necessary to the payment of the arrears of dower due your petitioner, pursuant to the said decree of this court, and to the future quarterly instalments thereof, as they may become due.”
    The prayer was granted and the sequestrator appointed. At the trial before Bailey, J., it appeared that the sequestrator had paid Mrs. McClurg out of the rents of said property, between January 1878 and May 1879, the sum of $2862. These payments to Mrs. McClurg were general payments on account of her arrears of dower, no specific appropriation thereof having been made by the sequestrator or by Mrs. McClurg.
    Borland contended, 1st. That the decree of the court in the matter of the sequestration, specifically appropriated the rents as collected by the sequestrator, and paid over to the widow the arrearages of dower, due her at the date of the decree.
    2d. But that if the decree did not ipso facto make such appropriation, the law made it in equitable relief of Borland, as the rents were paid over to Mrs. McClurg.
    The following was the plaintiff’s sixth point, which the court refused:
    “ That all moneys paid to the widow under the order of sequestration at No. 1217, December Term 1874, must be first applied to the arrearages of dower before the current quarterly instalments; and if the sequestrator has paid her since his appointment an amount sufficient to cover the instalment claimed in this action, and all arrears of dower down to the expiration of Borland’s tenancy, it must be applied to this claim, and defendant is not entitled to a verdict.”
    The court instructed the jury to find in favor of defendant, Murphy, who was the bailiff of Mrs. McClurg, for one-quarter’s rent, $375, instead of $625, the amount claimed by her. A verdict was found accordingly, when both plaintiff and defendant took a writ of error. (See preceding case of Murphy v. Borland, ante p. 86.)

      M. W. Aeheson and S. G. Schoyer, for Borland.
    The decree of the court in the equity proceedings amounted to a specific appropriation of the rents as they were received and paid over to the widow to her arrears of dower as the several instalments fell due. If the decree did not so appropriate them, then the law will do so in relief of Borland. Payments on account of rent, without any particular appropriation, are to be applied to the instalments which first accrued: Reed v. Ward, 10 Harris 144; Hollister v. Davis, 4 P. F. Smith 508; Berghaus v. Alter, 9 Watts 386; McKee’s Ex’r v. Commonwealth, 2 Grant 23; Pierce v. Sweet, 9 Casey 151. The principle that when no appropriation is made by either party the law applies them to the debt which is least secured, is just as between the'parties themselves; but no case, we think, can be found where the law has made an appropriation to the debt least secured, where such appropriation was at one and the same time prejudicial to an innocent third person, and in violation of the other well-known rule that general payments in the absence of appropriation by the .parties are to be applied to the oldest indebtedness.
    Borland has a stronger equity than a surety, and in the application of payments the law favors a surety: 2 Pars. on Con. 633; Pierce v. Sweet, 9 Casey 151.

      J. M. Stoner and George P. Hamilton, for Murphy.
    As to the application the law makes in the absence of either party, the authorities are full to the point, that where there are two debts, one secured and the other unsecured, the law, in favor of the creditor, will apply general payments to the unsecured debt: Pierce v. Sweet, supra; Shenk’s Appeal, 9 Casey 371; Johnson’s Appeal, 1 Wright 268; Foster v. McGraw, 14 P. F. Smith 468; McQuaide et al. v. Stewart et al., 12 Wright 198 ; Smith v. Brooke, 13 Id. 147; County of Schuylkill v. Commonwealth, 12 Casey 524; McKelvey v. Jarvis, 6 Norris 414; Watt & Co. v. Hoch, 1 Casey 411.
   Mr. Justice Paxson

delivered the opinion of the court, November 17 th 1879.

The second assignment of error raises the only question in this case not ruled by Murphy v. Borland, just decided. By the plaintiff’s sixth point, the learned judge was asked to instruct the jury: “ That all moneys paid to the widow under order of sequestration at No. 1217 December Term 1874, must be first applied to the arrearages of dower before the current quarterly instalments; and if the sequestrator has paid her since his appointment an amount sufficient to cover the instalment claimed in this action, and all arrears of dower down to the expiration of Borland’s tenancy, it must be applied to this claim, and defendant is not entitled to a verdict.” The court declined so to charge.

The order of sequestration referred to directs “ that said sequestrator do apply said rents, issues and profits: 1. To the payment of the taxes due or to become due on said premises; and 2. To the dower of said Margaret McClurg and any arrears thereof charged on said premises.” It is not denied that the whole amount of rents received by the sequestrator and paid over to Mrs. Mc-Clurg does not equal the dower which has accrued since his appointment. The payments made by the sequestrator were on account of the dower generally, without appropriation to any particular portion. We find nothing in the order of sequestration requiring such appropriation.

The plaintiff, however, invokes the doctrine of appropriation of payments, and says that the payments made by the sequestrator must be applied to that portion of the dower first due, which includes the dower distrained for. This proposition means this, that neither party having made an appropriation, the law will apply the payments in such manner as to do the creditor the most harm; that is, to the payment of that portion of her dower for which she has security, leaving the unsecured portion unprotected. I do not understand the law to be so. On the contrary, the appropriation should be in the way most beneficial to the creditor and to the debt least secured: Pierce v. Sweet, 9 Casey 151; Shenk’s Appeal, Id. 371; Johnson’s Appeal, 1 Wright 268; Foster v. McGraw, 14. P. F. Smith 464; McQuaide v. Stewart, 12 Wright 195; Smith v. Brooke, 13 Id. 147; County of Schuylkill v. Commonwealth, 12 Casey 524; McKelvey v. Jarvis, 6 Norris 414. It was urged, however, that the case now under consideration did not come within the above well-settled rule, for the reason that the plaintiff is an innocent third party, if not a surety. We need not discuss the question how far the principle cited is applicable to the case of a surety, for the plaintiff does not occupy such a position. Nor is he entitled to any special consideration as an innocent party. He remained upon the premises after the first distress with knowledge that his goods thereon were liable for the dower.

Judgment affirmed.


author: Chief Justice Sharswood

text:
    Heineman's Appeal.
    1. Under the provisions of the Acts of April 8th 1833 and April 20th 1869, whatever disposition a testator makes of his real estate, whether specific or general, it passes to his devisees, subject to the charge in favor of the widow of one-third interest therein for her life; and where a testator specifically devised the rents of certain properties to his five children, and the widow elected not to take under testator’s will, one-third of the rents were properly awarded to the widow and each fifth share was rightly reduced accordingly.
    2. Under the provisions of the eleventh section of the Act of April 11th 1848, if the widow elects not to take under her husband’s will she is entitled to one-third of his personal estate absolutely, and of this it is not in the power of the husband to deprive her. If, in case of such election, there is not enough to pay legacies, they must abate.
    3. Testator in his will provided that one-fifth part of all sales of his property made should be invested for his daughter. It was contended that she was thereby entitled to one-fifth of the entire personal estate of testator. Held, that these words must be so construed as limiting her to that portion of the estate only which arose from the sales of property.
    4. Hunter’s Estate, 6 Barr 97, and German «. German, 3 Casey 116, followed.
    November 7th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Appeal from the Orphans’ Court of Allegheny county: Of October and November Term 1879, No. 301.
    Appeal of Matilda Heineman, from the decree of the court in the matter of the exceptions to the account of the executors of Louis Heineman, deceased.
    Louis Heineman died February 28th 1877. He left a will dated February 22d 1877, which contained the following provisions:
    “First. I direct all my just debts and funeral expenses to be fully paid and satisfied by my executors, hereinafter named, as soon as conveniently may be after my decease
    “ Second. I give and bequeath to my wife Catharine so much of my household furniture, beds, bedding and such other articles, useful or ornamental, contained in my house or residence on Troy Hill, as she may select, to the value of five hundred dollars, according to the appraised value thereof, to bé made by appraisers to be selected by my said executors, hereinafter named. And I further give and bequeath unto my said wife, the sum of twelve hundred dollars, to be paid to her by my said executors yearly and every year during her natural life, for her maintenance and support. All which legacies to my said wife, I do declare to be in lieu and stead of her dower at common law.
    “ Third. I devise and bequeath to my executors, hereinafter named, the store-house and lot situate on Fifth avenue, in the city of Pittsburgh, in trust, however, for the following uses and purposes, and no others, to wit: To rent the same at such rent or rents and for such term or terms of years as they may deem best, until the term of twenty years after my death shall have fully expired and ended, and after paying all expenses, taxes and other charges against the same, to divide the residue of the rents equally between my five children, as follows: One share to my daughter, Matilda Heineman, to be paid to her without power of anticipation or liability to attachment, and free from the control of her husband, and in case she should die before the expiration of said term of twenty years, her share of said rents shall be paid to her children.
    “Fourth. I direct and empower my said executors, hereinafter named, to sell all the rest, residue and remainder of my estate, real, personal and mixed, of what nature or kind soever, and wheresoever the same may be at the time of my death, for such price or-prices, either together or in parcels, and on such terms as they may deem best, and to execute and deliver good and sufficient deed or deeds therefor, to the purchaser or purchasers thereof.
    “ Fifth. I direct and empower my said executors, hereinafter named, to sell the said store-house and lot on Fifth avenue, in the city of Pittsburgh, as soon after the expiration of said term of twenty years after my death as they can obtain a satisfactory price therefor, and to execute and deliver a good and sufficient deed therefor to the purchaser or purchasers thereof.
    “ Sixth. I direct my said executors, hereinafter named, to invest the one-fifth part of the proceeds of all sales of my property made, in such securities as they may deem best, with power to sell, change, alter, renew and re-invest the proceeds of the same in other securities from time to time, the income thereof to be paid to my said daughter, Matilda Heineman, during her natural life, free from the control of her husband, without power of anticipation, and free from liability to attachment, and upon her death the principal thereof to be equally divided among her children.
    “ Seventh. All the rest, residue and remainder of my estate, not otherwise hereinbefore disposed of, I give and bequeath unto my four sons — Richard Alexander, Charles, Albert and Edwin Alonzo — share and share alike, to their heirs and assigns for ever.
    “And lastly, I hereby nominate, constitute and appoint my beloved son, Charles Heineman, and my nephew, Augustus R. Heineman, to be the executors of this my last will and testament.”
    Testator’s real estate consisted of a valuable building, store-room, offices, &c., situate on Fifth avenue, between Wood and Market streets, Pittsburgh; and his residence on Troy Hill, back of Allegheny city. He had considerable personal property, consisting of stocks of various kinds, &e.
    The executors took charge of the assets, and collected the rents and dividends until the 19th of April 1878, when they sold the stocks at auction. Among the stocks sold were eight shares of the capital stock of the Germania Savings Bank, of the par value of $1000 a share paid up. These shares were sold at the auction at $100 a share. They had been appraised and returned in the inventory at $800 a share, and in filing their account the executors claimed credit for the difference, $5600, between the appraised value of the stock and what it sold for. Mrs. Heineman excepted to this, and claimed that the stock had been sacrificed and sold for a nominal price without due notice to her.
    The executors filed their account in the register’s office on May 3d 1878. It was presented for approval in the Orphans’ Court on June 3d 1878, and exceptions were then filed on part of Mrs. Heineman. Many of these exceptions were sustained and the account surcharged' with $6565.
    The court found there were $22,309.66 in the hands of the executors for distribution, and dismissed the exceptions, and made a decree as follows:
    First. That Catharine Heineman, widow of the testator, has refused to accept the provisions made for her in his will, and having elected to take under the intestate laws of the Commonwealth, she is entitled in addition to the personal property, appraised at $300, and set apart to her, to one-third the proceeds of the personal property and rents collected after the payment of debts, expenses of administration, insurance, repairs, &c., and that said one-third is $7436.55; Second. That under the trust created by the 3d clause of the will, the accountants have received rents, less expenses, taxes, insurance and repairs, amounting to $3297.67 ; one-third of which is payable to Catharine Heineman, widow, and the residue is to he divided equally among the testator’s five children ; Third. That under the trust created by the 4th and 6th clauses of the will, accountants have received proceeds of sales and household goods, &c., less expenses, amounting in all to $8646.06; one-fifth of which, amounting to $1729.21, is to be invested as directed by the will, in trust for Mrs. Matilda Heineman, less her share of costs of audit, &c.; and Fourth, $3176.05 was declared to be the amount to which each of the four remaining legatees were entitled.
    From this decree Mrs. Heineman took this appeal, and alleged, inter alia, that the court erred,
    1. In not surcharging the account with the sum of $5600, the difference between the appraised value of the stock of the Germania Savings Bank and what it was sold for at the auction on the 19th of April 1878.
    3. In its construction of the third clause of the said will, and in holding that Matilda Heineman was only entitled to one-fifth of the two-thirds of the net income from the rents of the Fifth avenue property.
    4. In the construction of the sixth clause of said will, and in holding that Matilda Heineman was only entitled to have invested for her share the one-fifth of the two-thirds of the proceeds of the property mentioned.
    5. In not ruling and holding that under said will, as Mrs. Heineman was deprived of one-third of her share of the rents of the Fifth avenue property by reason of the widow’s refusing to take under the will, that therefore she, Mrs. Heineman, was entitled to be reimbursed out of the amount, $1200 per annum, set apart by said will for the support of the widow.

      Barton & Sons, for appellant.
    At the sale on April 19th 1878, there was no bid on the stock, and therefore it was knocked down for the widow and children at a nominal sum; and if this decree is to stand, it is gone for ever from the control of these executors, and the interest of Mrs. Heineman is lost from the control of her trustees. The mother’s election was Matilda’s loss and the brothers’ gain. Under the will Matilda got her one-fifth clear of her mother’s claim. Under the intestate laws her income is reduced one-third. The construction contended for makes Matilda take the income or interest of one-fifth of two-thirds of $1200 a year, and surrender one-third of her entire income both from rents and interest on her trust investment. The sons are relieved from this charge of $1200 per annum, and get back four-fifths of it, and in lieu thereof pay the mother one-third of their share of the rents.

      Kennedy & Doty, for appellees.
    The stock of the Germania Savings Bank was sold, as were all other stocks and property, by the executors at public sale, after due public notice. The net rents, after deducting all expenses, taxes and charges against the same, are to be divided equally amongst the five children; Mrs. Heine-m-an to receive one share, not one-fifth partas provided in the sixth clause of the will. The widow having declined to accept under the will, and elected to take under the intestate laws, her dower or interest became a “ charge ” against the rents of the property, and must be deducted before giving Mrs. Heineman or either of the testator’s children, her or his “one share of the residue.”
    The court properly held that Mrs. Heineman did not participate in the distribution of the cash and assets representing the same as cash. Sales are not appropriate to cash, debts or claims, and similar assets. This doctrine is distinctly enunciated in almost these exact words, in McGlaughlin’s Executors v. McGlaughlin’s Administrators, 12 Harris 20; Hunter’s Estate, 6 Barr 97; German v. German, 3 Casey 116 ; Myers’s Appeal, 12 Wright 26 ; Bredlinger’s Appeal, 2 Grant 461
   Chief Justice Sharswood

delivered the opinion of the court, November 17th, 1879.

We find nothing to correct in the decree of the learned court below. By the Act of Assembly of April 20th 1869, Pamph. L. 77, it is provided that, “ in case any person has died, or shall hereafter die, leaving a widow and last will and testament, and such widow shall elect not to take under the will, in lieu of dower at common law as heretofore, she shall be entitled to such interest in the real estate of her deceased husband as the widows of decedents dying intestate are entitled to under the existing laws of this Commonwealth.” By the Act of April 8th 1833, Pamph. L. 316, “ where such intestate shall leave a widow and issue, the widow shall be entitled to one-third of the real estate for the term of her life.” It is evident that whatever disposition a testator may make of his real estate, whether specific or general, it passes to his devisees subject to the charge in favor of the widow of one-third interest therein for her life. It was strictly right then to award to the widow one-third of the rents of the store-house and lot on Fifth avenue in Pittsburgh, and the shares of the five children to whom the rents were specifically devised, were rightly reduced accordingly, namely, each one-fifth of the residue after deducting the widows share.

By the eleventh section of the Act of April 11th 1848, Pamph. L. 537, it is in like manner provided that, in case that the widow elects not to take under the last will and testament of her husband, she shall be entitled to her share of his personal estate under the intestate laws, that is, to one-third thereof absolutely. Of this it is not in the power of the husband to deprive her. But evidently he can dispose of the remaining two-thirds. If, therefore, after paying the widow one-third of the residue of his estate after debts, funeral expenses and the costs of administration, sufficient remains to satisfy his legacies, they are to be paid as provided by him, and the balance goes to his residuary legatees, if there is a residuary bequest, if not, then to the next of kin. If there is not enough to pay all the legacies they must abate according to the principles upon which, in other cases of a deficiency of assets, such abatement takes place. In Gallagher’s Estate, 26 P. F. Smith 296, we were called upon to consider the effect of an election by the widow to take against the will of her husband. It was there said: “The election of the widow does not destroy the right of the decedent to make a will and appoint an executor. The entire personal estate, bequeathed or not. vests in the executor in trust for administration and distribution: First. To pay debts and other legal claims. The widow electing to take under the will, has such a claim of which the decedent could not deprive her as he might deprive his next of kin of all claim, and give the entire residue to strangers. Over that residue he has entire power; he can carve it out and distribute it as he pleases, and in what order he pleases. His general and specific legacies must first be paid, and then if there is any-tiling left it goes to the residue.” It is clear then that the award of one-fifth of the proceeds of all sales to the appellant was right. Had it been as the fourth exception supposes, only one-fifth of two-thirds, it would certainly have been wrong, but that exception was not true in point of fact. The decree finds that under the trust created by the fourth and sixth clauses of the will the accountants have received proceeds of sales and household goods, &c., less expenses amounting in all to $8646.06. One-fifth of which, amounting to $1729.21, is to be invested as directed by the will in trust for Mrs. Matilda Heineman. The learned counsel for the appellant argued earnestly that, under the sixth clause of the will she was entitled to one-fifth of the entire personal estate. But the words restricting her to the proceeds of sales of property must be construed as limiting her to that portion only of the estate as was ruled in Hunter’s Estate, 6 Barr 97; German v. German, 3 Casey 116. Another position should be noticed, that as the appellant was deprived by the election of the widow of one-third of her share of the rent of the! Fifth avenue property, she -was entitled to be reimbursed out of the amount of the annuity of $1200 set apart by the will for the widow. How this was to be worked out, or out of what fund it is to come, has not been explained. In truth the simple rule is that, in these cases, whatever bequest to or provision is made for the widow in the will, is to be considered as if it did not exist. We think the learned court were right in not surcharging the executors with the stock of the Germania Savings Bank. It was sold at public sale, and we see no evidence of fraud in the transaction.

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


author: Mr. Justice Mercur

text:
    Western Pennsylvania Railway Company versus The City of Allegheny.
    1. A city can create a valid municipal lien for improving a street, only when the improvement is made in pursuance of law and the mode prescribed by statute or ordinance is strictly followed.
    2. In opening and improving one of its streets a municipal corporation graded beyond the limits of the street as located by law, and built a stone wall to sustain the street, one-half of which was within the street line and the other half on private property. Held, that the wall was built in violation of law and the taking of the ground was a trespass. Held, further, that the city could not recover from the owner of the property any portion of the cost of the wall.
    November 7th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.

      Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 79.
    Scire facias sur municipal lien, filed by the city of Allegheny against' the Western Pennsylvania Railway Company, to recover the cost of construction of one-half of a stone-wall erected by said city, on the south side of Church street.
    The claim of the city was for $4693.14. The improvement of Church avenue by grading and paving for a distance of 1377J feet, was the basis of the claim. The avenue on the south side fronts 682 feet on the depot property of the railroad company. This property was formerly the Pennsylvania canal. The city, in order to keep the avenue on the grade fixed, found it was necessary in order to support it on the depot side to erect a stone-wall, the grade of the street being much higher than the level of the company’s building. The construction of the wall was given by the city to a contractor. In the prosecution of the work he dug over the south line of the avenue, as fixed by ordinance, and encroached on the property of the company. He was promptly notified by the engineer of the company that he was off of the line of the avenue and that he must desist. He refused to do so, and built the wall, one-half of it on the company’s property south of the south line of the avenue.
    The following was the special verdict of the jury: “ For the plaintiff the sum of $5654.60,- subject to the opinion of the court on the question of law reserved, arising out of the following facts:
    “ That in the improvement of Church avenue it became necessary to construct a stone-wall along its south line. That said wall was located and built for a distance of 682 feet 11 inches, being the property described in this lien, partly on the street and partly on the property of the West Pennsylvania Railroad, the defendant; that the street line was the centre of the wall, and that the cost of that portion of the wall so constructed on the property of defendant, described in the lien, outside of the line of said avenue, amounted to $3675.84. That said wall was necessary, and the cost thereof was not increased by the location partly on defendant’s property. At and prior to the construction of said wall upon defendant’s property, the defendant’s officers notified the contractor not to .construct said wall on the defendant’s property. That the cost- of constructing said wall is included in the assessment for said street. That the entire length of said street, as improved, is 1377J feet, and the frontage thereon is 2755, and the entire cost of the street is $18,370.92.
    “ If the court should be of opinion that the defendants are entitled to credit on their assessment for their share of the cost of said stone-wall, to wit, $993.51, then judgment is to be entered for the plaintiff for $4661.09, non obstante veredicto.”

    The court entered judgment for the plaintiff for $4661.09, non obstante veredicto. The defendant took this writ and alleged, that the court erred: 1. In entering judgment on the reserved question, in favor of the plaintiff below for the above sum. 2. In not allowing the defendant below a credit of $1987.02, on its assessment for the improvement of Church avenue, the same being its proportion of the cost of the entire wall, built partly on its property and partly on the street. 3. In allowing a cr-edit to defendant below of only $993.51, and in not entering a judgment for the sum of $3667.38 against said defendant on the question of law reserved.

      Hampton & Dalzell, for plaintiff in error.
    To entitle a municipal corporation to recover the cost of improvements, it must comply with all the conditions precedent, whether prescribed by charter or ordinance: Dillon on Municipal Corp., vol. 2, sect. 649; City of Pittsburgh v. Walter, 19 P. F. Smith 365; Lowell v. French, 6 Cush. 223; City of Lowell v. Wheelock, 11 Id. 391.
    Applying this proposition to the present case, we find by the special verdict, that Church avenue was not graded and paved on the line fixed by the ordinance for its location and opening. It is not now of a uniform width of thirty feet within the lines of its location, but encroaches upon the property of the Western Pennsylvania Railroad Company, to the extent of one-half of the width of the stone-wall for a distance of 682 feet. The city is, therefore, a confessed trespasser upon the company’s property.
    There is no principle of law, that should compel the company to pay for the part of the wall claimed to be constructed inside of the street line. The right to enforce the lien in this case, rests upon the legal and faithful performance of the work for which payment is claimed. There has been no such performance, but on the contrary a trespass upon private property has been committed, and an attempt is now made to justify the illegal act as a whole, by setting up the legality of a part of it. We insist upon a credit of $1987.02, as justly belonging to the company.

      W. B. Rodgers, City Solicitor, contra.

    The wall was necessary ; its erection did not increase the cost of the work; the railroad is relieved of that portion built upon its property. What justice would there be in going further? The building of the wall upon this location, increased instead of diminished the width of the street. The deviation is but a small one. The street is still substantially on the location of Church avenue. It cannot be contended, that where the side-walk of a street was constructed for a few feet over upon private property, therefore, no recovery could be had for the portion of that pavement rightly located. If not, then neither can the railroad company’s position be sustained. To follow it to its logical conclusion, there could be no recovery for any portion of the cost of the street. The city has improved the whole of Church avenue. All the work done beyond the line of the avenue, was in excess of its authority, but its right to recover is only taken away as to the cost of such excess.
   Mr. Justice Mercur

delivered the opinion of the court, November 24th 1879.

This is a municipal claim for grading and paving Church avenue, and for the erection of a stone-wall partly on the lands of the plaintiff in error. The claim for grading and paving is not resisted. The contention is in regard to the liability of the company to pay for the wall. About six hundred and eighty-three feet in length of this wall was built partly within the limits of the avenue, and partly on the land of the company. It was from five to nine feet wide at its base, varying according to its height. At the top it was two and a half feet wide, and the line of the street passed through the centre thereof. As the face of the wall on the lands of the company was battered, more than one-half of the entire wall was on its lands. On the special verdict found and question of law reserved, the learned judge thought the company liable for that part of the width of the wall that was built within the line of the avenue, and entered judgment accordingly. This constituted the ground of complaint.

The city can create a valid municipal lien for improving a street only when the improvement is made in pursuance of law. The street must first be duly established. Its width must be fixed, and-the improvement made within its lines, before the expense thereof can be imposed on the lands of an adjoining owner. As the lien does not rest on any agreement or specific assent of the owner of the land charged with this burden, and the improvement is often against his wish, a clear right should be shown by the municipality to justify such an act of sovereign power. This wall was built in violation of law. The taking of the ground was a trespass. It has not the palliating circumstance of having been committed inadvertently. Prior to, and at the time of the erection of the wall, the contractor of the city was notified by the engineer of the company not to build on its land. Regardless of the rights of the plaintiff in error the city trespassed on lands to which it had no right. The portion of the wall which is within the line of the street is not self-sustaining. It is of no benefit to the street, and of no value to the public. It can be kept in place only by the support which it receives from a continued trespass on the lands of the plaintiff in error. Private property cannot, in this manner, be taken and appropriated by the city, and the cost of any part of the illegal structure be charged on the property of one whose rights are thus violated. The municipal charges legally laid on lands in this county are sufficiently large without subjecting them to any imposed contrary to law. The learned judge erred in not disallowing the cost of constructing the entire wall;

Judgment reversed: And it is now ordered that judgment on the special verdict and reserved point, non obstante veredicto, be entered in favor of the defendant in error for $3706.12.


author: Mr. Justice Trunkey

text:
    Curtis & Co. versus Waring & Co.
    C. & Co. agreed with. W. & Co. to consign oil to them, to be stored until they authorized its sale, with certain rates for storage and stipulated commissions. They sold the oil without the order or knowledge of C. & Co., and afterwards went into bankruptcy and made a composition with their creditors. C. & Co. brought an action of trover and conversion, but only one of the two defendants was served. Held, that in the absence of affirmative evidence that the defendant in fact participated in the sale of the oil, or knowingly appropriated its proceeds, the court was right in holding that he was not guilty of positive fraud, involving moral turpitude or intentional wrong, and although fraud was implied against him because of the partnership relation, yet the action was barred by the composition in bankruptcy.
    November 8th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 266.
    Trover and conversion, by Albert W. and I. A. Curtis, partners, against R. S. Waring and Orville T. Waring, doing business as Waring Brothers & Co.
    The plaintitts were engaged in the business of refining petroleum in Armstrong county, Pennsylvania, in August 1874. Oil being very low in price, the plaintiffs concluded to put their oil up in good and secure barrels, store it, have it insured, and hold it until it would command a better price. Waring Brothers & Co., of whom the defendant, Richard S. Waring, was one of the firm, were largely engaged in the oil business iu Pittsburgh, Pennsylvania, and also had a branch,house in Philadelphia. They stored, bought and sold oil. The plaintiffs, in August 1874, called at the business house of the defendants in Pittsburgh, and made a contract with the defendants, as follows: .The plaintiffs agreed to ship their oil to the defendants’ warehouse in Philadelphia, and the defendants agreed to receive it, and store it, for the sum of eight cents per barrel for the first month, and four cents per barrel for each succeeding month. It was also agreed that the plaintiffs should pay the defendants for keeping the barrels in order, cooperage as it is called. The defendants were also to have the oil insured, at the cost of the plaintiffs. It was further agreed between them that the oil should be held until the plaintiffs ordered or desired' it to be sold, and that when the plaintiffs authorized the sale of the oil, they would allow a commission of 1-|- per cent. It was further agreed between them that in case the plaintiffs needed any money before they wished to sell their oil, that the defendants (Warings) would loan them the same at 9 per cent. On the 27th of August 1874, the plaintiffs commenced shipping oil by railroad to the defendants’ warehouse at Philadelphia, and at various times until the 12th of October 1874, shipped to the defendants, under their contract, three thousand one hundred and sixty-seven barrels of refined oil in barrels. This oil was worth in the aggregate about $18,000.
    On the 25th of January 1875, one of the plaintiffs, learning that the defendants were in financial trouble, called at the defendants’ business house in Pittsburgh, and there met the defendant, Richard S. Waring, and demanded from him the oil he had left with his house for storage, and was informed by Waring, in reply, that they had not the oil, that it had been sold, and that he had neither oil nor money for him.
    The plaintiffs then brought this action. Service wms had on R. S. Waring alone, and a return of non est inventus as to O. T. Waring.
    On the trial of the case below, the plaintiffs submitted evidence to the jury tending to prove substantially the facts as stated herein. The defendant also gave evidence to support his version of the transaction.
    The defendant put in the plea, on his own behalf, that the plaintiff could not recover, for the reason that the defendant, after the transaction out of which the plaintiffs’ cause of action grew, made a composition with his creditors, under the provisions of the Act of Congress of the 22d of June 1874. His counsel also requested the court to charge the jury as follows:
    That in view of the unoontradicted evidence, by means of the record of the United States District Court, that the defendant, after the transaction out of which the plaintiffs’ cause of action grew, availed himself of the provisions of the bankrupt law, and effected a composition with his creditors in accordance with said provisions, such composition is, under all the evidence in the case, a bar to plaintiffs’ action, and they should find a verdict for'the defendant.
    The plaintiffs’ counsel objected to this instruction being given by the court, and claimed, that the evidence did not warrant the instruction prayed for in this point, even if a composition would bar a recovery by the plaintiffs growing out of the facts disclosed by the evidence, for the reason, that the defendant did not allege in his plea in this behalf, or prove or allege that he had paid or offered to pay the composition proposed. That in a composition under the Act of Congress, of June 1874, the party proposing to avail himself of it as a defence to an action brought against him, must show payment or a tender of payment. That composition in bankruptcy is like accord and satisfaction. That compliance with the terms of the composition must both be alleged and proved to bar a recovery.
    The plaintiffs claimed also that the instructions prayed for should not be given, for the reason that the liability of the defendant to the plaintiffs could not be discharged by any bankrupt proceeding, either by composition under the Act of 1874, or the provisions for composition undér the Act of 1867. That it was not competent for Congress, under the constitutional provision to pass bankrupt laws, to enact a law to discharge a party from the consequences growing out of an actual fraud or crime, and that the proceedings in bankruptcy did not affect the liability of the defendant to the plaintiffs incurred in this transaction.
    The court charged the jury amongst other things as follows: “The most important question, whether the discharge in bankruptcy is a bar to their action, can be reserved for consideration hereafter by the court in bankruptcy, and for that purpose I wish you to pass upon the question of fact in dispute between the parties.” The court then left it to the jury to say whether the defendants received the plaintiffs’ oil as mere storekeepers without any right' to use or sell the same, or whether by the terms of the contract they had a right to use it and sell it. and then instructed them that if they found that the defendants sold the oil of the plaintiffs without authority and right, they should find for the plaintiffs; if they did not find so, but found that the defendants had a right to use or sell the oil, then they were to find for the defendants. Under this charge the jury found a verdict for the plaintiffs, reserving the question of law as to the effect of the composition proceedings upon the plaintiffs’ claim, and the court subsequently entered judgment for the defendant, non obstante veredicto, and in this the plaintiffs claimed the court erred:
    1. In not entering judgment in favor of the plaintiffs on the verdict found by the jury.
    2. In entering judgment in favor of the defendants on the question of law, reserved by the court, non obstante veredicto.

    3. In holding that the composition proceedings taken by the defendant in the United States District Court in bankruptcy, would effect a discharge of the defendant from his liability, without first showing that he had carried out the terms of the composition by satisfaction, according to its terms or his tender and offer of satisfaction. i
    4. In holding the law to be, that a liability incurred by the defendant under the facts found by the jury in this case, under the instructions of the court, would be discharged by the proceedings in bankruptcy, to wit: by composition.

      Hampton Dalzell and PeOamp, for plaintiffs in error.
    By their finding, the verdict of the jury established the fact, that the defendants, without color of right, took the property of plaintiffs and converted it to their own use. We contend, that upon this finding, the defendants’ cannot be discharged from their liability to plaintiffs by any provisions of the bankrupt law providing for composition. In taking and converting our oil to their use, we maintain the defendants committed, both in law and fact, a positive and actual fraud, such as is contemplated by the bankrupt law.
    We contend that the terms debtor and creditor, as used in the bankrupt law, and in all other laws relating to debtor and creditor, mean, and ought to be interpreted, an obligation arising from a contract, or out of the violation of a contract, either express or implied, and not the incurring of an obligation arising out of the commission of a crime or an actual fraud, as was the fact in this case. The obligation in this case to the plaintiff to create a debt, was never contemplated by the parties. It grew out of the wrong of the defendant.
    Even if the proceedings under the Act of 1874, by the defendant in availing himself of the provisions of the act of composition, would avail him in a case like this one, to have the effect of discharging him from the obligations to his creditors, he should not only allege and plead his composition in bar of a recovery, but he should allege, plead and prove, that he had carried it out by payment of the consideration offered by him to his creditors.

      W. S. Purviunee and George Shir as, Jr., for defendants in error.
    The defendants were factors and were not acting in a “fiduciary character,” within the meaning of the bankrupt law: Chapman v. Forsyth, 2 Howard 202 ; Neal v. Clark, 5 Otto 708. The debt created by the fraud of the bankrupt, must be one created by positive fraud, involving moral turpitude, and not implied fraud or fraud in law, which may exist without the imputation of wilful wrongdoing or criminal intent. The composition was effected in accordance with the provisions of the bankrupt law, and binds all creditors, and relieves the bankrupt from liability for all classes of debt: In re Keim v. Graff & Co., 17 N. B. Reg. 319; In re Schafer & Wesselhorft, Id. 116; In re Odell, 16 Id. 501; In re Haskell, 11 Id. 164; In re Morris, 12 Id. 170; Bamburg et al. v. Stern, 18 Id. 74.
    The composition annuls the original debt and substitutes the pro rata, and this pro rata can only be enforced in the bankruptcy court. If, on motion to enforce it, the debtor could satisfy the court that he was not able to perform, the court should and would set aside the composition, and the bankruptcy proceedings would then be resumed.
   Mr. Justice Trunkey

delivered the opinion of the court, January 5th 1880.

This action was brought for damages for the conversion of oil by Richard S. and Orville T. Waring, late co-partners as Waring Brothers & Co., the summons served on Richard S., and the cause tried against him alone. The verdict established the fact that the plaintiffs’ “ oil was shipped to the Philadelphia house, to be there kept in store for them, without any right, on the part of Waring Brothers & Co., to sell or use the same, but simply keep it on storage until the plaintiffs should order it to be sold.” No other disputed fact was passed on by the jury, save the amount of damages. The verdict was rendered subject to the opinion of the court on points reserved, to wit: 1. Whether the composition of the defendant with his creditors, in accordance with the provisions of the bankrupt law, is, under all the evidence in the case, a bar to the plaintiffs’ action; and 2. Whether the plaintiffs’ evidence shows that the defendant was guilty of fraud, or was acting in a fiduciary relation, within the meaning of the bankrupt law.

The third assignment of error cannot be sustained. It was unnecessary for the defendant to prove that he had performed or tendered performance of the terms of the composition. For reasons stated in Bidwell v. Bidwell, ante, p. 61, while the decree of the District Court of the United States stands, or while the proceeding in bankruptcy is pending in that court, the courts of the state have no jurisdiction of an action for recovery of the original debt, if such debt be not within the 33d section of the Act of 1867. It was not there determined whether a debt created by fraud of the bankrupt, or while acting in a fiduciary character, is discharged by a composition; nor need it be here. This question is not raised in the facts presented.

The plaintiffs contend they are entitled to recover under the principle held in Leggett v. Barton, 11 Vroom 83 (7 The Reporter 116). In that case the defendant pleaded his discharge by a composition in bankruptcy; the plaintiff replied that the debt was fraudulently ' contracted; to which replication the defendant demurred. The pleadings admitted the debt was fraudulently contracted, and therefore the point was, whether it, like,other debts, was discharged by the composition. Here the fraud is denied, and a reserved question whether there is evidence to show it.

From the plaintiffs’ testimony, i.t appears they agreed with Waring Brothers & Co. to ship oil to them at Philadelphia, to be there stored until they authorized its sale, at certain rates per month for storage, and stipulated commissions on sales; and Waring Brothers & Co. to make advances, pay cooperage, insurance, and expenses of mixing oils. This contract was made with R. S. Waring, who did the firm business at Pittsburgh; the oil was shipped, from August 27th to October 12th 187?, to Philadelphia, where Orville T. Waring had charge of the business. In January 1875, having heard that the credit of Waring Brothers & Co. was shaking, the plaintiffs called on' R. S. Waring at Pittsburgh for the oil, who said it had been sold and he was sorry for it, that he regretted it, and could not give the oil or money. Before the failure the plaintiffs borrowed from Waring Brothers & Co. $1500, and gave orders for $2600, got under the arrangement for advances on security of the oil.

All through their argument the plaintiffs urged that R. S. Waring, the defendant, took and sold the oil and appropriated the proceeds to his own use, without color of right, and that such is the true interpretation of the verdict. It was not submitted to the jury to find whether R. S. Waring, in fact, participated in the sale of the oil,' or wittingly shared its proceeds, or even had knowledge of its sale before the failure of the firm. He was in Pittsburgh, his partner in Philadelphia, when the oil was sold, and there is no pretence of proof that he directed the sale. No exception was taken to the reservation in the second point, nor is error assigned to the disposition of fact therein. The fourth assignment alleges error in law, under the facts found by the jury. What they found is already noted, and is to the effect only that R. S. Waring, as a copartner, is liable in trover for conversion of the oil.

A man may intend no wrong and yet be liable in trover for the value of property he took by mistake: Forsyth v. Wells, 5 Wright 291. The conversion by one partner of property, which came into possession of the firm or partnership account, is the conversion of all, and makes all liable in trover: Nisbet v. Patton, 4 Rawle 120. In that case Gibson, C. J., cites a number of instances where trover was held to lie against innocent partners. The mere fact of a verdict against the defendant, with a reservation for the court to say if there is evidence of fraud, signifies nothing as to his guilt of actual fraud — that is not found.

The oil was consigned to Waring Brothers & Co., as factors, and they ha^d a special property in it, a lien on it for their commissions, charges and advances ; and this notwithstanding the oil was not to be sold until a time to be named by the consignors. Under the Bankrupt Act of 1841, a factor who received and retained the money of his principal, was not a fiduciary debtor. That act intended technical trusts and not those which the law implies from the contract: Chapman v. Forsyth, 2 How. 202. For reasons by Wells, J., in Cronan v. Cotting, 104 Mass, 245, we adopt the conclusion that the phrase “while acting in any fiduciary character,” in the Act of 1867, must have the construction which the Supreme Court of the United States had put on the similar clause in the Bankrupt Act of 1841.

In Neal v. Clark, 5 Otto 704, where it was held by the state court that Neal was not chargeable with actual fraud, but had committed constructive fraud, which implicated him in the devastavit, the Supreme Court of the United States ruled, “ That the term fraud as used in section 5117 of the Revised Statutes, section 33 of the Bankrupt Act of 1867, means positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, as does embezzlement; and not implied fraud, or fraud in law, which may exist without imputation of bad faith or immorality.

Whatever view may be taken of the act of him who actually converted the plaintiffs’ oil, in absence of affirmative evidence that his partner, R. S. Waring, in fact participated in the sale, or knowingly appropriated its proceeds, the court was right in holding that he was not guilty of positive fraud, involving moral turpitude or intentional wrong; afid though fraud was implied against him because of the partnership relation, yet the action was barred by the composition in bankruptcy.

Judgment affirmed.


author: Per Curiam.

text:
    Smith versus City of Allegheny.
    1. By the Act of May 20th 1871 the Hen filed for grading a street, is prima facie evidence of the claim of the city.
    2. Damages suffered by a defendant in re-grading a street cannot be set off against an. assessment. By the 22d section of the Act of April 1st 1870 a specific remedy is provided for the recovery of such damages, to which the defendant must be confined.
    November 11th 1879.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas No. 2, of Allegheny county: Of October and November Term 1879, No. 60.
    Scire facias sur municipal lien filed by the city of Allegheny against George W. Smith. «
    This-claim was for an assessment of $555.62, on a lot owned by the defendant on Boyle street, and extending along Pairmount street in the city of Allegheny, on account of the grading, paving and curbing of said Pairmount street.
    At the trial before Kirkpatrick, J., the plaintiff offered in evidence the Act of April 1st 1870, Pamph. L. 755, whereby the improvement of the streets of Allegheny was authorized, the ordinance for the improvement and the Act of May 20th 1871, Pamph. L. 1032, and then offered the lien which had been filed in this case. The defendant objected, and the court overruled the objection. (First assignment of error.)
    It was then proposed to be proved by the testimony of the defendant, “that the city of Allegheny established a grade for Fairmount street on or about the level with Boyle street. That the street was so graded, and the defendant was assessed to pay to the city of Allegheny the cost and expenses of the grading of the first grade; that since that time they have established a new grade, for which the assessment is now made; that they have erected a stone-wall debarring him from Henderson street; that they have left a little alley by which he can pass into his own house. That this change in the grade has depreciated his property at least one-half in value, rendering it almost uninhabitable. This for the purpose of showing that he has already paid*"all that can he legally charged upon him for the grading and improvement of Fairmount street.”
    Objected to as immaterial and irrelevant, and further, that if the defendant is injured by the change of grade he has his remedy under the Act of 1870. Objection sustained and evidence excluded. (Second assignment.)
    Verdict for plaintiff, when defendant took this writ and alleged that the court erred in admitting in evidence the plaintiff’s lien and excluding defendant’s evidence.

      Thomas M. Marshall, for plaintiff in error.
    The affidavit of defence clearly denies the lawful assessment for grading, and sets out definitely that this claim was for re-grading, which it is expressly provided by the sixth section of the Act of April 1st 1870, should be paid by a general tax. Our purpose was to show that this improvement was re-grading, and, therefore, to be paid by a general tax, and not by an assessment per foot front.

      W. B. Rodgers, City Solicitor, contra.

    The lien was prima facie evidence of the claim : Act of May 20th 1871, Pamph. L. 1082; Northern Liberties v. St. Johns Church, 1 Harris 104; Philadelphia v. Esau, 10 Phila. R. 425.
    We had no objection to the defendant below showing that the lien included the cost of re-grading. The counsel, however, chose to stand on his offer.
    If the offer had been limited to the cost of re-grading it would have been admissible. However, if any portion of it was intended to refer to re-grading it went beyond that, and proposed to show that defendant was injured by the change of grade. An offer to show damage by change of grade was inadmissible: Section 22 of Act of 1st April 1870, Pamph. L. 755.
   The judgment of the Supreme Court was entered November 24th 1879,

Per Curiam.

By the Act of 20th May 1871, Pamph. L. 1032, the lien filed shall be prima facie evidence of the claim, subject to be rebutted by any matter of defence set up in the defendant’s affidavit. The offer of the defendant was too broad. • It comprehended what was clearly inadmissible in this proceeding — to show the damages suffered by the defendant by the re-grading. By the 22d section of the Act of 1st April 1870, Pamph. L. 755, a specific remedy was provided for the recovery of such damages, to which the defendant must be confined.

Judgment affirmed.


author: Mr. Justice Murcur

text:
    Fulton et al. versus Central Bank of Pittsburgh.
    1. After dissolution a liquidating partner may hind his late co-partners in borrowing money to pay the debts of the late firm.
    2. The authority to act as a liquidating partner does not require an express and specific appointment. Where one so acts with the knowledge of his late co-partners, their permission may be presumed, and as to third persons they may be bound by his acts.
    3. A cross-examination should be confined to matters in relation to which the witness has been examined, or to such questions as may tend to show his bias or interest.
    4. The defendants in their defence had neither alleged nor attempted to prove usury. On the cross-examination of plaintiffs’ witness, who was testifying in rebuttal, they offered to show that usurious interest had been charged them. Held, that this was an attempt to introduce a new and distinct defence, and was clearly erroneous.
    November 10th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Stérrett, JJ. Green, J., J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 183.
    Assumpsit by the Central Bank of Pittsburgh against Pulton, Marvin & Co.
    This was an action by the bank against the defendants, late partners doing business under the firm of Eulton, Marvin & Co., as the makers of two notes, and the endorsers of a third note of which the following are copies, viz.:
    “$4000. Pittsburgh, June 29th 1875.
    Pour months after date we promise to pay to the order of Jacob H. Walter four thousand dollars, at the Central Bank, without defalcation, value received.
    (Signed), Pulton, Maryin & Co.
    (Endorsed,)
    Jacob H. Walter.”

      “$2500. Pittsburgh, July 6th 1875.
    Four months after date we promise to pay to the order of Jacob H. Walter twenty-five hundred dollars, at the Central Bank, without defalcation, value received.
    (Signed), Fulton, Marvin & Co.
    (Endorsed),
    Jacob H. Walter,
    Fulton, Marvin & Co.”
    “$800. Pittsburgh, November 29th 1875.
    Thirty days after date we promise to pay to the order of Fulton, Marvin & Co., eight hundred dollars, at the Central Bank, without defalcation, for value received.
    (Signed), D. R. Bowman,
    (Endorsed), J. B. Williams.
    Fulton, Marvin & Co.”
    The notes for $4000 and $2500 were in the handwriting of Jacob II. Walter, and the signature of the firm name to the notes and the endorsement of the firm name upon the $800 note were in his handwriting. The $800 note was shown to be a renewal of a previous note of like character, except that it ran for a longer period and was for $1000. It was shown that the Central Bank of Pittsburgh had received all said notes from Jacob II. Walker at or about their respective dates. It appeared that the Central Bank of Pittsburgh at the dates respectively of the $4000 and $2500 notes and the original of the $800 note, and at the times the same were respectively received by it from Walter, was a private hanking co-partnership, of which Walter was a partner and managing director, he being a member of its discount committee. It remained a private co-partnership until September 1875, when it purchased a charter, viz.: “ The Act to Incorporate the Western Savings Bank and Safe Deposit Company of Pittsburgh,” and procured a decree of court changing this corporate title to “ The Central Bank of Pittsburgh,” and thereafter, without any change in its membership or otherwise, it continued the business at the old stand and with the old officials.
    The firm while in existence carried on the oil refining business at the Taren turn Oil Works. About April 1st 1873, they sold out their works. The plaintiff claimed that Walter was the liquidating partner of the firm, and as such had the right to make and endorse the several notes in suit. The defendants denied that he was the liquidating partner, and this was one of the principal questions in the case. Defendants testified that the said notes were made and negotiated without their consent or knowledge, and the first they knew of the existence thereof was about the time of their maturity; that they were not made or negotiated in the course of the business of the firm of Fulton, Marvin & Co., but long after its dissolution; that as early as the spring of 1873, the firm sold their works and all their other property, ceased all business and dissolved; and that Jacob H. Walter had no authority to make, endorse or negotiate the said notes or any of them.
    In rebuttal, Jacob H. Walter was examined as to the alleged indebtedness of Eulton, Marvin & Co., to his banking co-partnership — the Central Bank — and in respect to the consideration for the two notes for $4000 and $2500 in suit. He testified that the $2500 note was the last part renewal of a note originally for $5000, which his banking firm had discounted for Eulton, Marvin & Co., and had carried for several years by renewals every four months.
    Upon the cross-examination of Mr. Walter, the defendants proposed to interrogate him further in respect to said original note for $5000, and the renewals thereof, and to show that these renewals had been at extravagant and usurious rates of interest, and if the usury was abated there was nothing due upon that note.
    To this cross-examination the plaintiff objected, and the court sustained the objection.
    . The third point of the defendants, with the answer of the court thereto, was as follows : That in the absence of express authority from his late co-partners Jacob H. Walter — unless he was liquidating partner — could not bind the late firm of Eulton, Marvin & Co. by making the notes of $4000 and $2500 in suit.
    Ans. “ Affirmed, with the explanation that it does not require an express appointment or authority to constitute a member of a dissolved firm a liquidating partner, and one may become such by permission or tacit consent of the other partners, and when one acts as such with the knowledge of the others, and they raise no objection to his doing so, the jury should infer authority to act so far as third persons are concerned.”
    In the general charge the court, Stowe, P. J., inter alia, said:
    “ Unless Walter was the liquidating partner of Fulton, Marvin & Co., plaintiff cannot recover; but if t'he jury believe he was permitted by the other partners to go on, after the dissolution of Eulton, Marvin & Co., acting as the one whose right and duty it was to settle the affairs of the late firm, 'as the evidence seems to me to indicate, he is to be held and treated as the liquidating partner,- so far as this suit is concerned.”
    Verdict for plaintiff for $8833.55; and, after judgment, defendants took this writ, and alleged, inter alia, that the court erred in not permitting defendant to cross-examine Walter, as set forth above, in refusing defendant’s third point, and in the portion of the charge noted.

      A. M. Watson and M. W. Aoheson, for plaintiffs in error.

      A. M. Brown and I). T. Wa,tson, for defendant in error.
   Mr. Justice Murcur

delivered the opinion of the court, January 5th 1880.

It is well-settled that after dissolution, a liquidating partner may bind his late co-partners in borrowing money to pay the debts of the late firm. He may renew an accommodation endorsement, and give notes to liquidate the partnership indebtedness: Dundas v. Gallagher, 4 Barr 205; Robinson v. Taylor, Id. 242; Brown v. Clark, 2 Harris 469; Ward v. Tyler, 2 P. F. Smith 393; Lloyd v. Thomas, 29 Id. 68. The authority to act as a liquidating partner, does not require an express and specific appointment. When one so acts with the knowledge of his late co-partners, their permission may be presumed, and as to third persons, they may be bound by his acts. The court stated the law correctly. We are not furnished with the full evidence; but will not assume it to have been insufficient to carry the question of authority to the jury.

The seventh assignment is to the rejection of certain evidence in cross-examination. A cross-examination should be confined to matters, in relation to which, the witness has been examined in chief, or to such questions as may tend to show his bias or interest. Hopkinson et al. v. Leeds, 28 P. F. Smith 396. It was well said in that case by Mr. Justice Williams, “ to permit the defendant under the guise of cross-examination, to give evidence in chief, is not only disorderly, but unfair to the plaintiff.”

The attempt in the present case, was made under circumstances more than usually objectionable. In making their defence, the plaintiffs in error had not proved or alleged usury. They did not claim that any had been received by the corporation defendant in error, or by the association from which the bank obtained the notes. They had put their defence on other grounds and rested. When the defendant in error had called Walter in rebuttal, then the plaintiffs in error sought in his cross-examination, to introduce this new and distinct defence.

Much must be left to the discretion of the judge, as to the time and order of introducing evidence. The tendency of the evidence proposed by the cross-examination, if it had any effect, was to re-open the case, and involve an inquiry into matters not alleged before. We do not think the incomplete evidence furnished, will justify us in holding, that the learned judge committed such an error in rejecting this evidence, as to call for a reversal. We discover no error in the other assignments.

Judgment affirmed.