author: Mr. Justice Sterrett

text:
    McCandless versus Young.
    1. In assumpsit by a purchaser to recover back the purchase-money for the deficiency in a tract of land which the vendor represented contained a greater number of acres than it actually did contain, the scienter of the vendor at the time he made the representation is the vital question in the action.
    2. The 17th Rule of the Supreme Court specifying what the paper book of the plaintiff in error shall contain requires an appendix containing the evidence: Held, this does not mean the evidence of either the plaintiff or defendant alone nor such exeei’pts therefrom as he may choose to present.
    3. Per Sterrett, J. — The relevancy of testimony often depends on the oireumstances under which it is offered — the state of the evidence then before the court and jury ; and hence it is in such cases that we should be furnished with the testimony, so that we may be able to properly understand the bearing of that which is alleged to have been improperly rejected or received, as the ease may be.
    November 15th 1880.
    Before Mercur., Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Error to the Court of Common Pleas of Butler county: Of October and November Term 1879, No. 156.-
    This was an action of assumpsit brought by Simon Young against W. D. McCandless, to recover from defendant, as money had and received by him which belonged to the plaintiff, the price "of some thirty-eight acres of land at $100 an acre, with interest from the date of receipt, which the plaintiff alleged he paid to the defendant, and which should be repaid, because of deceit practised on him by defendant in the sale of a tract of land in Centre township, which the defendant falsely and fraudulently represented to contain one hundred and eighty-six acres, when in fact, it contained but one hundred and forty-eight acres and some perches.
    McCandless, by articles of agreement in writing in 1878, agreed to sell and convey to Simon Young, the plaintiff, one hundred and eighty-six acres of land, more or less. In pursuance of this agreement, a deed was made to Young for the land described as one hundred and eighty-six acres, more or less. No survey was made before the delivery of the deed, and none had been made since the defendant had become the owner, some twenty years before. A survey made for Young disclosed the fact, that the piece of land sold contained only one hundred and fifty acres, strict measure. This suit was thereupon brought by Young to recover back from the vendor, Mc-Candless, the purchase-money having been paid, the value of thirty-six acres, the alleged deficiency, at the rate per acre at which the whole had been purchased, claiming the sum of $3703.12J. The plaintiff charged that the defendant, well knowing that he only had one hundred and fifty acres, sold one hundred and eighty-six, and thereby committed a fraud. The question of defendant’s scienter became the main issue, and the refusal of the testimony offered by the defendant on this point was the error assigned.

      Young alleged that the testimony, which was not printed by plaintiff in error in his paper-book, would have disclosed the following facts: That in the spring of 1873, McOandless, being the owner of a farm which he wished to sell, and having been informed that Simon Young.had sold a farm in an adjoining township and desired to purchase another, proposed to Solomon Young, a brother of Simon, that if he should get Simon to buy the'farm of said Mc-Candless at $100 per acre, he would give Solomon a commission of $300, and represented to Solomon Young that there were one hundred and eighty-six acres in the farm he proposed to sell. Solomon Young communicated to his brother the proposal of McCandless to sell his farm at $100 per acre, and that McOandless said there were one hundred and eighty-six acres in it.
    Simon and Solomon went to look at the farm and saw McOandless there, who repeated his proposal and representation as to quantity, in the presence of both of them. On that representation and upon the faith reposed by Young in McOandless, who is a surveyor, and had lived some time on the farm, and got it from his father, who had owned it a long time, a contract was agreed upon for one hundred and eighty-six acres of land at $100 per acre. A day or two afterwards the parties met in the l'aw-office of Charles McOandless, Esq., in Butler, to have the contract put in writing, and the terms of it as above, and the payments, were stated to Judge McOandless, and he wrote an agreement, read it to the parties, and they signed it. This article of agreement was lost from the possession of Judge McOandless, and could not be -found for use in the case. Simon and Solomon Young testified positively that the agreement as read expressed the price per acre at $100, as well as the gross priee, $18,600. The defendant and another witness denied that the price per acre was in the agreement] but all agreed that one hundred and eighty-six acres of land at $100 per acre was the basis of calculation to arrive at the aggregate price, $18,600.
    Verdict for plaintiff for $4228.23, and after judgment thereon defendant took this writ and alleged that:—
    1. The court erred in holding that under the pleadings and proof the plaintiff could recover.
    2. In refusing the following offer by defendant:—
    To show by the witness, a surveyor, and who made a survey of the traet within two years, that instead of it containing two hundred and fifty acres only, as described in the deed, it contains over three hundred acres, for the purpose of showing that more than fifty acres were included more than should be; this to justify and support the defendant’s theory that he believed there w'ere one hundred and eighty-six acres at least in his lines; he did not know that Anthony Thompson’s contained more than two hundred and fifty acres net.

      3. In refusing the following offer by defendant:—
    To prove by Josiah M. Thompson, a surveyor, that he made a survey of the Anthony Thompson part of the tract within two years, and that instead of containing two hundred and fifty acres, it contains over three hundred; this to justify defendant’s belief and statement that the draft of H. McKee was correct for one hundred and eighty-six acres and forty-two perches, and to repel the imputation of fraud and deceit.

      Thompson Scott, for plaintiff in error.
    The only question involved in the facts is the scienter of the defendant. There are other matters touching the form of action, pleading and ruling ; but the real question, and indeed, the only one for the jury was, ‘‘ Did the' defendant know he owned only one hundred and fifty acres, and did- he represent that he owned one hundred and eighty-six to induce the plaintiff to buy?”
    The question is, although mistaken, are his conduct and repre-. sentation fraudulent ? May this not be ; is it not consistent with entire innocence ? The motive gives, in this case, color to the act; his motives are to be judged, not as he stood, but as he thought he stood. And this view we believe to be the settled law of this State: Juniata Bank v. Brown, 5 S. & R. 226.
    The proof offered and refused would not only explain how the deficiency arose, but it would also show facts consistent with perfect good faith. He believed the patent contained nearly five hundred acres, and the proof rejected, would have shown that it did. He did not know that Anthony Thompson had more than he was entitled to, two hundred and fifty acres ; and being entitled to all the residue, the defendant not only believed, but had these hitherto undisputed data upon which to confidently rely. Would this not explain satisfactorily why he represented the quantity he owned, and the' cause of his misapprehension ?

      George A. & A. T. Blade, John M. Miller and L. Z. Mitchell, for defendant in error.
    As no demurrer was filed and no point made concerning the form of aetion or pleadings in the court below, that is probably settled. The narr. and affidavit set out the facts on which the action was founded, and that the action is proper in.form ; we refer to Hershey v. Keembortz, 6 Barr 128; Smith v. Bellows, 27 P. F. Smith 441. The court was not asked for any instructions as to the effect of the proofs, and they were submitted fairly to the jury.
    We cannot see how th'e proof of the survey could have helped the defendant below, in face of the evidence already before the jury and on the issue, and which the plaintiff in error has omitted from his paper-book. The question in the case was, did McCandless knowinglymisrepresent the quantity at the time he made the contract, and on this he had a full hearing. He testified himself that he did not know the Anthony Thompson part overran, and that his part fell short, and that he honestly thought he had at least one hundred and eighty-six acres until the plaintiff below told him it had fallen short. The burden of proving the fraud and deceit was on the plaintiff, and the court held a tight rein on him in his offers, so that nothing was admitted to which defendant’s counsel could except. No complaint is made of the charge of the court, and with all the facts and testimony before them, the jury found that defendant did knowingly misrepresent the quantity of land, and had deceived and cheated the plaintiff when he contracted with him in 1873.
    The plaintiff in error has omitted the entire testimony on part of the defendant in error, and all of the testimony on his own part that might be prejudicial to him, and there was considerable'of it.
   Mr. Justice Sterrett

delivered the opinion of the court, Janu3d 1881.

The vital question, on the trial of this case in the court below, was the scienter of the defendant at the time he made the representations on which the action is grounded. The charge of the learned judge contains a clear and accurate statement of the law applicable to the controlling facts of the case as we gather them from the paper-books and admissions of counsel. It is not denied that defendant below represented to plaintiff, when the latter was 'about to purchase his farm, that it contained one hundred and eighty-six acres,- nor can it be doubted that the representation was made for the purpose of inducing him to buy and pay for that quantity of land. It is conceded that a subsequent survey of the farm revealed the fact that it contained about thirty-eight acres less than was represented. The plaintiff below, as the basis of his suit brought to recover the price which he paid for the deficiency, alleged that the representation was falsely and fraudulently made, with intent to cheat and defraud, by inducing him to buy and pay for more land than the tract actually contained; that the defendant at that time well knew there was not more than one hundred and fifty acres in the tract, but, notwithstanding this knowledge, he falsely and with the fraudulent intent aforesaid, represented that it contained one hundred and eighty-six acres.

The plaintiff introduced testimony to prove these allegations. ■On the other hand, the defendant denied that he knew there -was less than one hundred and eighty-six acres in the farm, and contended that he acted honestly and in good faith, believing at the time that it did contain the number of acres he represented; but admitted that he had since ascertained he was mistaken. The questions of fact thus involved were very fairly submitted to the jury and we fail to discover any ground on which to base the first assignment of error. On tb.e contrary, if the court had charged that under the pleadings and evidence the plaintiff could not recover, it clearly would have been error.

'The subject of complaint in the second and third assignments is the rejection of the offers of testimony therein specified. It may be that the plaintiff in error should have been permitted to prove the matters embodied in these offers, and that if proved, as we must assume they would have been, they would have tended to corroborate his own testimony; but he has failed to satisfy us that any substantial error was committed in excluding the testimony as irrelevant. The relevancy of testimony often depends on the circumstances under which it is offered, the state of the evidence then Itefore the court and jury; and hence it is important in such cases that we should be furnished with the testimony, so that we may be able to properly understand the bearing of that which is alleged to have been improperly rejected or received, as the ease may be. The seventeenth rule of court, specifying what the paper-book of the plaintiff in error shall contain, requires “ an appendix containing the evidence.” This does not mean the evidence of either the plaintiff or defendant alone, nor such excerpts therefrom as he may choose to present. . To sanction such a practice would often result injuriously to the defendant in error and at the same time be unfair to the court below.

The defendant in error contends that if we had before us the evidence which preceded the rejected offers, it would appear to us, as it did to the learned judge of the Common Pleas, that the rejected testimony was wholly irrelevant. In the absence of that evidence, how can we undertake to say that this is not so ? The presumption is that the ruling of the court was correct, and that should prevail until the contrary is made manifest in the regular and orderly way. This has not been done in the present case, and the judgment of the Court of Common Pleas should therefore be affirmed. ■

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Cope’s and Kaine’s Appeal.
    1. While the opening of a .judgment to let the defendant into a defence does not destroy its lien, yet if the plaintiif desires to- extend it longer than five years he must issue his scire facias to revive, as prescribed by the Act of March 26th 1827. _
    _ 2. After a judgment is reversed it has no vitality to support a continuing lien; when it ceases to be a judgment it ceases to be a lien.
    November 15th 1880.
    Before Mercur. Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, 0. J., absent.
    Appeal from the Court of Common Pleas of Fayette county : Of October and November Term 1880, No. 317.
    Appeal by Eli Cope and D. Kaine from the decree of the Court of Common Pleas of Fayette county, overruling the exceptions of the appellants, and confirming the auditor’s report distributing the proceeds of the sheriff’s sale of the real estate of A. E. Meason.
    The facts as found by the auditor, William Parshall, Esq., were as follows:
    “ The fund in court for distribution arose from the sale by the sheriff of the real estate of A. E. Meason, at the suit of Daniel Kaine and Eli Cope, on vend, ex., No. 124, June Term 1876. The sale was made on the 8th of June 1876. Mr. Kaine claims the whole of the fund on this judgment. On the 1st of July 1867, Kaine and Cope took judgment, sec. reg. against Meason for $1148.13. On the first Monday of September following the judgment was opened by the court. The case went on the trial list, and was tried on the 21st of January 1869, and verdict for the plaintiffs for $1251.90, and on the 25th of January 1869, judgment was entered on the verdict and the judgment docket, and remains there still without any note of further proceedings. To this judgment a writ of error was taken, and the judgment was reversed and venire facias de novo awarded. ' The record was returned on the 18th of January 1870. On the 17th of March 1870, the case was again tried, and a verdict for the plaintiffs with leave to the court to enter judgment for the defendant non obstante, &c. On the 22d of September 1870, the court directed judgment to be entered for plaintiffs on payment of jury fee, and on the 23d of September judgment was entered for $500.20. On the 5th of October a writ of error was taken, and on the 21st of January 1871, record was remitted and judgment reversed, &c. On the 16th of March 1871, the case was again-tried, and verdict for plaintiffs for $455, with leave of the court to enter judgment for $803.63, &c. The court held the question reserved from the 16th of March 1871, until the 24th of April 1874, when judgment was directed to be entered for $803.63, with interest from date of verdict and costs. Judgment was entered September 7th 1874, for $803 63. On the 24th of September 1874, another writ of error was taken. On the 15th of March 1875, the record was returned, judgment reversed and venire faeias de novo awarded. On the 11th of May 1875, the case was again tried, and a verdict for plaintiffs for $1851.76, and judgment entered on the verdict May 20th 1875. Each of the foregoing judgments was regularly entered on the judgment docket, and they remain there without any note of their reversal.
    The several dates of these judgments may be grouped thus:
    July 1st 1867, judgment for . . ' . • $1148.13 September 1st 1867, opened.
    January 25th 1869, judgment for . . . 1251.90 January 18th 1870, reversed.
    September 23d 1870, judgment for .... 500.00 January 21st 1871, reversed.
    September 7th 1874, judgment for .... 803.63 March 15th 1875, reversed.
    May 20th 1875, judgment for ..... 1851.76
    The foregoing statement shows that an examination of the judgment docket would have given to junior lien creditors of the defendant, Meason, as ready and complete notice of this lien or claim as a sci. fa. to revive could have done if one had been issued. Mr. ICaine insists that under the state of the case no sci. fa. could have issued, and that there was a legal necessity sufficient to take the case out of the operation of the Act of the 26th of March 1827, and cites as authority to show that such a case might exist where the lien might be preserved beyond five years without a sci. fa., the cases of Ebright v. The Bank, 1 Watts 399, and Fulton’s Estate, 1 P. F. Smith 209, 215. If any case could exist where the facts would warrant the court in taking this case out of the operation of the act, it would be difficult to conceive one with stronger points or greater legal necessities than this. It is not necessary to determine here whether, under the circumstances of the case, a sci. fa. to. continue the lien of the opened judgment could at any time have been issued. It seems that such a writ had been issued in the case of Frick’s Appeal, 1 Watts 393, upon a judgment which had been opened and not then determined, and was tacitly, at least, recognised by the Supreme Court .as proper. A judgment of reversal is a judgment of the Supreme Court, 2 Rawle 39. The several judgments entered on the verdicts in this case which were reversed, were no liens at any time. There is a material distinction in this respect between a judgment opened to let the defendant into a defence, and one reversed and set aside by a higher court. If such judgments before reversal were valid liens, there could have been no necessity for the Act of 17 05, preserving the rights of purchasers at sheriff’s sales, where the judgments on which sales were made should be after-wards reversed. It seems clear, therefore, that while the judgments entered on the verdicts might have the effect of giving notice, they could not have the effect of a revival to continue a iien. Since the Act of the 26th of March 1827, a rule tying up the proceedings would not continue the lien longer than five years : Frick’s Appeal, 1 Watts 393; Ebright v. The Bank, Id. 399. The Act of the 26th of March 1827, is explicit in declaring that no order or rule of court or any other process or proceeding thereof shall, have the effect of obviating the necessity of a scire facias to continue the lien: Styer’’s Appeal, 9 Harris 89. Under these authorities, even if the judgment of Kaine and Cope remained a lien after it was opened by the court, it had lost its lien on the 1st of July 1872, and was not again restored until the 20th of May 1876. In the distribution of the fund the judgment of Kaine and Cope must therefore be postponed in favor of the judgments entered prior to the latter date.”
    Exceptions were filed to this report which the court dismissed when this appeal was taken, it being alleged, inter alia, that the court erred in sustaining the ruling of the auditor that the several verdicts and judgments thereon of Kaine and Cope v. Meason had not the effect of continuing the lien of their judgment, and in further ruling that the judgments entered on said verdicts never were liens.”

      D. Kaine, for appellants.
    A scire facias could not have properly issued in this case. Hence, from the necessity of the case, the lien of t'he judgment of 1867 remained until the final judgment of May 5th 1875. The lien of the judgment was continued by the entry of the four subsequent judgments on the verdicts, and the entry thereof on the judgment docket. The subsequent incumbrancers had notice of the state of the record, for these were not only the first judgments standing on the judgment docket but they still remain there. The five several judgments are the same as one judgment. There is no law, rule or decision, anywhere to be found that decides that where a judgment of the court below is reversed, and a venire de novo awarded, the judgment on the judgment docket does not remain a lien until the new trial is had and the case is disposed of.

      L. H. Ruby, for appellees.
    The appellees claim that the judgments which were reversed were no liens, and if liens, such liens could not extend beyond the reversal of the judgments by this court. The return of the sheriff to the fi. fa., issued on the 19th day of February 1869, satisfied the judgment, and such a return, with a failure to comply with the Act of Assembly, gave no notice to the owners of subsequent judgments of the claims of the appellants to priority of lien. No legal necessity has been shown by the appellants to warrant the court in taking this case out of the operation of the Act of 1827.
    What legal necessity prevents the appellants from issuing a sci. fa., or what would have prevented the continuance of their lien until the present date ? The record showed both of these judgments to be absolutely satisfied and fully discharged, and subsequent encumbrancers were without notice of the claim of the appellants to priority. They suffered a period of three years to elapse, to wit, from the 18th of March 1871, to the 27th of April 1874, without any action on their part. The judgment of the appellees was entered during that period. The appellees rely upon- Styer’s Appeal, 9 Harris 89, and other cases cited by the auditor, in whose report will be found the material points of this ease.
   The judgment of the Supreme Court was entered November 26th 1880,

Per Curiam.

It may be conceded that opening the judgment to let the defendant into a defence did not destroy the lien; that it continued for the same period of time as if it had not been opened. Here the appellant seeks to continue it longer. That cannot be. The Act of 26th March 1827, inter alia, declares no judgment shall continue a lien on such real estate for .a longer period than five years from the day on which such judgment- maybe entered or revived, unless revived” or scire facias issued within that period, and no order or rule of court or any other process or proceeding thereof shall have the effect of obviating the necessity of the revival, in the manner herein prescribed, of any judgment whatever.”

In the present ease no scire facias issued within the five years. The order of court did not prevent the issuing thereof nor of an alias whereby the lien might have been continued: Eldred v. Hazlett’s Adm’r, 2 Wright 16. The' order of court did not profess to extend the lien, and would have been powerless had it so attempted. It cannot be contended, with any show of reason, that after a judgment is reversed it has. any vitality to support a continuing lien. When it ceases to be a judgment it ceases to be a lien.

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


author: Mr. Justice Mercur

text:
    Appeal of Duquesne Savings Bank.
    1. The Act of May 4th 1855 recites additional causes for which a wife shall have all the rights and privileges secured to a feme sole trader under the Act of February 22d 1718. And the second section of the Act of 1855 declares that if the husband of said wife, being the owner of lands, shall mortgage or alienate from his wife and children any of said land, without making an equivalent provision for their maintenance in lieu thereof, such mortgage or alienation shall be deemed null and void: Held, that this second section was intended to apply to the wife’s property and not to the real estate of her husband. „
    2. P., who owned a farm, whereon he resided with his wife and family, wilfully deserted them without any provision for their maintenance and never thereafter returned or contributed to their support. Previous to his desertion he had negotiated with M. for a loan, to be secured by a mortgage on the farm, and eight days after the desertion P. received the money and executed the mortgage. It clearly appeared that the mortgage was executed by P. with the intention of its resulting in a judicial sale of the farm and the deprivation of his wife and children of the enjoyment thereof: Held, that as the evidence failed to show any want of good faith in the mortgagee, Or any notice or knowledge of the desertion or intended fraud, the mortgage was valid..
    3. Per Mercur, J. — Although the mortgagor had been absent from his home for eight'days when he executed the mortgage, a fact unknown to the mortgagee, and in regard to which he was not bound to inquire, the mortgage was not therefore made null and void. Such a construction would practically prevent the acceptance of a mortgage unless the wife of the mortgagor was present. It would cause great embarrassment and annoyance in the transaction of business and give an effect to the act never intended by its language nor contemplated by its purpose.
    November 16th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Appeal from the Court of Common Pleas of Beaver county: Of October and November Term 1879, No. 367. In Equity.
    Bill in equity filed by Susannah Powell, by her next friend, John Harris, against the Duquesne Savings Bank.
    The following opinion of Hice, P. J., sufiiciently states the casé:
    “ From the bill, answer and evidence in this case, we find the facts to be:
    “1. That Susannah Powell, the plaintiff, was intermarried with one Peter Powell some twenty-eight to thirty years since, and had issue by her said husband eight children, six of whom are minors, the youngest of these being now about seven and the eldest about eighteen years of age.
    “ 2. That Peter, the husband, was the owner of a tract of land, situate in North Sewickley township, Beaver county, containing about 133 acres, on which he resided with his family up till the fall of 1869, when he left them, and was absent for about seven months, returning again and living with them as before for about one year, or until the 14th day of April 1871, when he again left them, and has never since returned to his family, nor done nor contributed anything whatever for their support and maintenance.
    “ 3. That there was considerable bickering and domestic difficulty between the husband and wife for a considerable time before the desertion of the wife and family by the husband, and charges of unfaithfulness to her marriage vows were made by the husband against his wife; yet, so far as the evidence discloses, there was no ground for the charges, nor any reasonable cause on the part of the wife for his abandoning his family ; but his act in this respect was a wilful and deliberate desertion of them, without any intention on his part of returning again, or discharging the duties of a husband and father.
    “4. That since his desertion of his wife and children he has been living in Meigs county, Ohio, with another woman, and claiming to be married to her, but without anything to show that he had obtained a divorce from the present plaintiff, or had any grounds whatever for obtaining one.
    “ 5. That previous to his desertion of his wife and family said Peter entered into negotiations for a loan of money from one A. A. McCarty, to be secured by a mortgage upon the tract of land above mentioned, which was finally consummated by his executing the mortgage and receiving the money at Pittsburgh, Allegheny county, on the 22d day of April 1871, eight days after his desertion as aforesaid. The amount of money actually received by him on this mortgage is not clearly disclosed by the evidence, but would seem to have been $4500, but might have been more. The amount named in the mortgage, and secured thereby, was $6380. The mortgage itself was duly recorded in the office for recording deeds in and for said county of Beaver; and afterwards, on the 8th day of August 1871, said A. A. McCarty, the mortgagee, by his attorney in fact, assigned the mortgage to the Duquesne Savings Bank, the defendant in this suit, who, having thus become the owner thereof, afterwards, to No. 153 of November Term 1873, issued a scire facias thereon, to which the sheriff made return that on the 4th day of November 1872, he served the same ‘on the defendant by making contents known, and leaving a true copy with his wife, in his absence.’ There being no appearance by Peter Powell or any one else, and no defence of any kind being taken, judgment was entered on the scire facias against said Peter for $7321. A writ of levari facias issued thereon, and on the 15th'day of March 1873, the land was sold by the sheriff, the defendant in this case becoming the purchaser thereof, and receiving a sheriff’s deed therefor; and although it does not directly appear in the evidence for what price the land sold, yet it seems to be admitted, and may be taken as a fact, that the price at which it was bid off was less than the amount of the' mortgage debt.
    “6. That at the time the husband deserted his wife and children, he left them in possession of the tract of land mortgaged as aforesaid, and also left with them on said farm certain horses, cattle, farming utensils, household goods, &c., all of which, however (except the household goods, which were of small value), were subsequently levied upon and sold by the sheriff for the payment of his (the husband’s) debts.
    “ 7. That the husband made no provision of any kind for the maintenance of his wife and children at the time he mortgaged the farm, nor at any time since, it being his intention, as theretofore declared by him, and as his subsequent acts show, to bring about a sale and alienation of the farm from his wife and children by this means, four of said children being of tender years and dependent upon the mother’s exertions for their support.
    “ 8. That so far as the present defendant is concerned, it had no notice or knowledge, in any way, at the time the- mortgage was assigned, nor does the evidence show that at any time since, until about the date of the filing of the plaintiff’s bill in this case, had it notice that said Peter Powell, the mortgagor, had deserted his wife and children prior to the date of his execution of said mortgage, or that the loan was negotiated and the mortgage executed by him for the purpose of procuring thereby a sale of the farm, and alienating the same from his wife and children; nor is there anything to show that McCarty, the mortgagee,. had any notice or knowledge of such desertion or intended desertion, or intention to alienate the land, at the time the loan was negotiated and the mortgage given. Mr. Fetterman, who, it appears, was acting as the attorney of McCarty, the mortgagee, and who, it seems, really did all the business for him, it is claimed, had notice of the acts and intention of the husband, and such notice and knowledge as should and would affect his client; but a careful examination of all the evidence fails to furnish anything showing that he had any knowledge on the subject. The facts proven, when properly considered, do not warrant such an inference.
    “ 9. That the negotiation for the loan on the mortgage had been going on between Peter, the husband, and Mr. Fetterman (but without the wife’s knowledge) for some time before Peter left, which was on the 14th of April; and the wife, the plaintiff in this case, testifies that she had knowledge of the giving of the mortgage eight or nine days after he left. The mortgage was executed on the 22d of April, so that she had knowledge of the mortgage almost immediately after the same was given. The scire facias issued on the mortgage was served by making contents known and giving a true copy thereof to the wife, the plaintiff here, on the 4th November 1872. No defence was taken by her, nor anything done to notify the defendants that she objected to the mortgage, or would contest the same. Subsequently a levari facias issued, the land was levied upon and sold after being duly advertised, of all which proceedings she had notice before the day of sale, which was on the 15th March 1873. No notice of her alleged right was given, nor any objection to the sale or to the acknowledgment of the sheriff’s deed was made.
    “ 10. That after having purchased the land, the defendant, on the 19th of June 1875, gave notice, under the Act of Assembly, for the purpose of obtaining possession, and it was not till subsequent to this, or about the date of filing the bill, August 2d 1875, so far as the evidence shows, that defendant had any notice of the claim of plaintiff that the mortgage was void, and that she claimed on this ground to hold the land, of which she is still in possession. It is true, however, that the plaintiff sought legal advice after the mortgage was given and before the sale, but was advised that nothing could be done — that the mortgage would have to be paid; and subsequently, when the land was about to be sold, it seems she employed an attorney, directing him to give notice of her claim at the sale; but no notice, so far as the evidence shows, was given, and after this no further steps were taken by her in the matter until after notice served upon her to give possession of the land.

      “ 11. That said plaintiff has no estate of her own, or in her own right, nor any means of support for herself and minor children, the children of said mortgagor, except as derived from the tract of land aforesaid.
    “ The facts being as thus stated, it is claimed on behalf of the plaintiff that the mortgage was void, under the provisions of the Act of Assembly of the 4th of May 1855, sect. 2,. extending the provisions of the Act of February 22d 1718, relating to feme sole traders, to the case where “ any husband, from drunkenness, profligacy, or other cause, shall neglect or refuse to provide for his wife, or shall desert her,” the second section of which last mentioned act declares that if the husbands of any wives, declared by the first action thereof to be feme sole traders, being the owners of lands, tenements, or other estate within the province, have aliened or thereafter shall give, grant, mortgage, or alienate from his wife and children any of said lands and tenements or estates, without making an equivalent provision for their maintenance in lieu thereof, every such gift, grant, mortgage, or alienation shall be deemed, adjudged, and taken to be null and void. Peter Powell, the husband, had, at the date of the execution of the mortgage, withdrawn himself from his wife and family; there w'as yet upon the farm, and which might be used by them, certain property that furnished them the means of support for the time being (but which was soon swept away by the sheriff’s sale to satisfy the debts of the husband), but his desertion of his home and family was .complete. It would seem evident, therefore, that his acts toward his wife and family were such as clearly brought the wife within the provisions of the Act of 1855, and entitled her to whatever benefits were secured thereby. These benefits were that she should have all the rights and privileges secured to wives declared feme sole traders under the Act of 1718. One of these rights and privileges secured to a wife declared a feme sole trader by 'that act, as shown by the second section, was that she and his children should have the use of the husband’s real estate within the province, for their maintenance, and that any gift, grant, mortgage, or alienation thereof by the husband that deprived them of this, without an equivalent provision for their maintenance, should be deemed, adjudged, and taken to be void. The negotiations for the loan were begun before he left his family, but his desertion was complete for some time before the same were consummated, and the mortgage executed. The case seems to fall fully within the provisions of the Act of 1718, as extended by the Act of 1855. There does not seem to be any reported case giving judicial construction to this portion of these statutes, yet if they are to be effectual in promoting the purpose that seems to have prompted their enactment, the protection of wives and children from the recklessness, profligacy, or maliciousness of those whose duty it is to protect and' maintain them, it seems to us they must be construed to embrace such cases as the present one, and that this mortgage must be held to be avoided thereby. It is urged that, although it be held that this mortgage falls within the statute, and is therefore declared void, yet as judgment was obtained and a sale effected, of all which the plaintiff had notice, but to which she did not object, it is now too late to urge any objection, and she is estopped from asserting the invalidity of the mortgage, or the title of the defendant. If, however, the statute avoids the mortgage, we do not see how any proceedings thereon, even with her knowledge, unless they were promoted or in some way furthered or encouraged by her, should stop her. She was not a party in any way to the proceedings; she merely remained silent — did nothing — but in this there was no fraud on her part. So long as she was not actually disturbed in possession of the land, we do not perceive any duty on her part to take any measures to have the mortgage declared void. It undoubtedly is a hardship to defendant to lose what was supposed to be an ample security for its money, especially as there seems to have been no bad faith on its part, no knowledge of the desertion by the husband, the mortgagor, nor of his intention by this means to alienate the land from his wife and family, leaving them without the means of' maintenance, but we do not see how it is possible to avoid this, and at the same time secure to the wife and children that protection which it was the design of the statutes to afford. So far as the present defendant is concerned, an inquiry at the date of the assignment would no doubt have led to a knowledge of the desertion; and the same may be said of the mortgagee. An inquiry at the date of the mortgage, properly directed, would have revealed the same facts, which it is now claimed render the mortgage void. We conclude, therefore, that the defendant cannot legally disturb the plaintiff in her possession of the land, and that the mortgage should be held as void.
    “ Let a decree be prepared accordingly.”
    The following was the decree:
    1. That the mortgage from Peter Powell to A. A. McCarty, more particularly described in the plaintiff’s bill, be and hereby is declared utterly null and void.
    2. That the said defendants be and hereby are perpetually enjoined from setting up any title to the land described in said mortgage, under and by virtue of said mortgage, or the proceedings at. law and the sheriff’s deed mentioned in said plaintiff’s bill; and are also perpetually enjoined from interfering (under and by virtue of any title derived or claimed from, by, or under said mortgage, proceedings and deed), with the possession, use, and enjoyment of said land by the plaintiff and her children.
    From this decree this appeal was taken.

      S. B. Wilson and A. M. Brown, for appellant.
    We contend that the decree was erroneous, because — 1. The Act of' May 4th 1855, entitled, “ An Act relating to certain duties and rights of husband and wife and parents and children,” does not confer upon a deserted wife the right asserted by Mrs. Powell in this suit. 2. The judicial proceedings upon the mortgage, of which the plaintiff had actual notice, and to which she made'no defence or objection, conclude her, and cannot'be avoided in this collateral suit. 3. The silence and acquiescence of plaintiff was a fraud upon the mortgagee and his assignee, the plaintiff in error; therefore she is estopped from asserting her alleged right under the Act of May 4th 1855. 4. The judgment on the mortgage, and the title acquired under it, were conclusive against Peter Powell, if not so against his Avife; therefore the decree was erroneous in that it perpetually enjoined the defendant from setting up any title to the land.

      Frank Wilson and John J. Wickham, for appellee.
    We claim that under the Act of 1855 the rights and privileges of a married woman deserted by her husband, or left unprovided for by him, are more extensive than her liabilities: Cleaver v. Scheetz, 20 P. F. Smith 496; Husbands on Married Women 127 ; Hyde v. Hesser, 3 Phila. R. 508; Hentz v. Clawson, 34 Leg. Int. 5. The construction contended for by the plaintiff in error would reverse this rule. The Act of 1855 is remedial, and it is to be beneficially expounded in favor of the wife. Those who trust a husband Avho has by his prodigality or desertion placed his wife and children in a position to claim the benefits of this act do so at their own peril: Black et al. v. Tricker, 9 P. F. Smith 13; Conly et ux. v. Bentley, 6 Norris 40. But we contend that the desertion of Powell did not make her sui juris ; that whilst entitled to the rights and privileges of a woman deserted by her husband as secured by the Act of 1855, her disabilities remain undisturbed. She could not be estopped by her acts whilst in possession of the land, especially as she did nothing inconsistent with her rights calculated to mislead any one. She could do or forbear to do no act to affect her own property unless settled to her separate use. The doctrine of estoppel as against a married woman “ i^ contrary to principle enforced by a vast volume of authority, destructive of the rights of married women, and is as clearly denied by equity as it is forbidden by law: Glidden v. Strupler, 2 P. F. Smith 400, 407; Brown v. Bennett, 25 Id. 420; Innis v. Templeton, 14 Norris 262.
   Mr. Justice Mercur

delivered the opinion of the court, January 3d 1881.

The appellant purchased the land in question at a sheriff’s sale made by virtue of an execution issued on a judgment obtained on a mortgage executed by the owner of the land. This bill is by 'the wife of the mortgagor. She prayed that the mortgage be declared utterly null and void, and that the appellant be perpetually enjoined from setting up any title to the land under said mortgage. Under the facts found by the learned judge, who also acted as master, he decreed substantially as prayed for in the bill. This is assigned for error.

Peter Powell, the husband of the appellee, executed this mortgage after he had deserted and abandoned her and his home without making suitable provision for the maintenance of his wife and children. The judge held this made the mortgage null and void under the second section of the Act of 22d February 1718, 1 Smith L. 99, and the second section of the Act of 4th May 1855, Pamph. L. 430.

The facts necessary to a proper understanding of the case are these. On the 14th April 1871, Powell left his home and family on the farm in Beaver county, where he and they had been residing for a year or more, and never returned nor contributed anything thereafter to their support and maintenance. It was a wilful desertion without any just cause and without any intention of returning. He has since been living with another woman as his wife in Ohio. Prior to this desertion he had entered into negotiations with one McCarty for a loan of money to be secured by mortgage on this farm. Before closing it the attorney of McCarty went out and examined the farm. Powell and his family were living together on it. The arrangement was closed by his executing the mortgage and receiving the money in Pittsburgh on the 22d April 1871. He left his family in possession of the farm, and of personal property consisting of horses, cattle, farming implements, household goods, &e. All/this personal estate except the latter was levied on and sold for the payment of his debts. He executed the mortgage with the intention of its resulting in a sale of the farm and depriving his wife and children of the enjoyment thereof. The court, however, has found there is no evidence “ to show that McCarty, the mortgagee, had any notice or knowledge of such desertion or intended desertion, or intention to alienate the land at the time the loan was negotiated and the mortgage given,” nor is there any evidence that his attorney who transacted all the business “ had any knowledge on the subject.” The mortgage was assigned to the appellant on the 8th August 1871. Scire facias afterwards issued was served on the appellee, no appearance being entered or defence made, judgment was taken by default. This was followed by execution, sheriff's sale, and due execution and acknowledgment of deed to the appellant. It had no knowledge of any fact calculated to impair the validity of the mortgage when it was assigned by McCarty; nor at any time since, until about the time this bill was filed. The appellee testified to some meritorious reasons as an excuse for her laches ; but to none that were brought to the knowledge of the appellant or that affects its legal rights.

The title of the Act of 22d February 1718, is “An Act concerning feme sole traders.” In its preamble, and in every section, it refers to cases where mariners and others, whose circumstances as well as vocations oblige them to go to sea, leaving their wives in a way of shop-keeping, “ or to work for their livelihood at any other trade.” It then proceeds to express and declare two purposes. The first, and main one is, that the wives of such absent husbands shall be as feme sole traders, and substantially shall enjoy all the rights, privileges and powers incident thereto or that flow therefrom. The other a denial of power to such absent husband to sell or mortgage his lands without making an equivalent provision for the maintenance of his family.

Thus the Act of 1718 dealt only with cases where the husband had gone to sea and allowed the wife to deal in and manage personal .property. The second section of the Act of 4th May 1855 states other causes for which a wife shall have all the rights and privileges secured to a feme sole trader under the Act of 1718. She shall have them whenever her husband from drunkenness, profligacy or other cause, shall neglect or refuse to provide for her or shall desert her. The section then proceeds to enlarge the subject-matter to which her powers shall apply. It declares “ her property real and personal howsoever acquired shall be subject to her free and absolute disposal during life, or by will, without any liability to be interfered with or obtained by such husband, and in case of her intestacy shall go to her next of kin as if he were Dreviously dead.”

Thus it appears her rights and powers to enjoy, sell, devise and transmit, her own property are enlarged; but no reference whatever is made to his lands or to restricting his powers in regard thereto. The first section of the act restricts the right of a married woman in devising all her property to the prejudice of her husband. The third specifies under what circumstances she shall have all the rights of a father over their children. The fourth provides the manner in which she may obtain a d'ecree of the court affirming her power to transact business. The fifth states certain acts of the husband which shall exclude him from claiming any right or title in the real or personal estate of his deceased wife, as tenant by the courtesy or under the intestate laws. The sixth states what act of the father towards his child shall ba;r his right to appoint a testamentary guardian for said child.

We have thus briefly referred to the whole act to show that in no part thereof does it profess to legislate in regard to his real estate. The second section can have a fair, just and reasonable effect given to its language by holding, as we do, that it was intended to apply to the wife’s property and not to the real estate of her husband.

Every part of this transaction show's entire good faith in. the mortgagee and in the purchaser. The examination of the farm, which induced the acceptance of the mortgage, was made a few weeks only before its execution. Although the mortgagor had been absent from his home and family for eight days when he executed it, a fact unknown to the mortgagee, and in regard to which he was not bound to inquire, the instrument was not thereby made null and void. Such a construction would practically prevent the acceptance of a mortgage, unless the wife of the mortgagor was present. It would cause great embarrassment and annoyance in the transaction of business, and give an effect to the act never intended by its language nor contemplated by its purpose.

Decree reversed, and the bill of the complainant is dismissed at her costs.


author: Mr. Justice. Trunkey

text:
    Munroe versus Armstrong et al.
    1. A lease of land was made exclusively for the purpose of producing oil. The work of boring for oil was to be commenced in ten days and continued with due diligence until success or abandonment; and if the lessees failed to' get oil in paying quantities or ceased to work for thirty clays at any time, the lease was to be forfeited and void: Held, that if the lessees failed to get oil in one well they had a right to put down another, and as many more as they pleased, so long as they worked with diligence to success or abandonment: Held, further, that a cessation of work for thirty days forfeited the lease.
    2. Forfeiture for non-development or delay is essential to private and pub-lie interests in relation to the use and alienation of property. In general, equity abhors a forfeiture, but not where it works equity and protects a landowner from the laches of a lessee, whose lease is of no value till developed.
    3. Brown v. Vandergrift, 30 P. F. Smith 142, followed.
    November 15th 1880.
    Before Mercur,, Gordon, Paxson, Trunket, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Error to the Court of Common Pleas of Butler county: Of October and November Term 1879, No. 132.
    Ejectment by A. M. Munroe against M. K. Armstrong, William Storey and A. B. Clark.
    This action was brought to recover the possession of ten acres of land, a paid of the Eli Beep farm, situate in. Eairview township, Butler county, Pa., both parties claiming title through Beep. On the 31st of July 1877, Eli Beep, the owner of a large tract of land, executed a lease of ten acres thereof to A. B. Clark and Boss Lilly, for oil purposes, for the term of twenty years,'reserving as a royalty or rent, one-eighth of all oil produced therefrom. Said lease also provided that the lessees should “ commence operations within ten days, and' continue to prosecute the work with due diligence until success or abandonment.” Also, “ the party of the second part, if they fail to get oil in paying quantities, or subsist (cease) to work for thirty days at any time, this article to be forfeited and to be null and void.” The lessees entered into possession of the premises and made preparation to drill a well within the ten days required, and completed it during the latter part of October, the same year. The well proved to be dry, or, as expressed'in oil parlance, “was a duster.” The lessees, Clark & Lilly, within a few days after the completion of the well, pulled the casing and removed it, with the tools and greater part of the machinery, from the lease and vicinity, and either sold or used them elsewhere. Matters remained in this condition upon the lease from about November 1st 1877, nothing whatever being done thereon until the month of February 1878, when Beep called upon Lilly, one of the lessees, and asked him if he and Clark intended drilling another well upon the lease. Lilly said they did not; that he would not do anything more unless he (Beep) would give them a new lease of seventy-five acres, which'Reep said he would not do. Reep said to Lilly that he would lease to other parties, as their lease was forfeited. Lilly replied if I were in your place I would. Reep called upon him a second time with like result. Reep afterward, on the 21st day of March 1878, made and delivered to the plaintiff, Munroe, a lease for oil purposes, of seventeen acres, containing or embracing the ten acres in dispute, and which had been leased to Clark & Lilly. Munroe was to commence operations within ninety days from date of lease, but by a subsequent arrangement, the time was extended by the parties. Munroe, at the time of taking this lease, was sinking an oil well on the same farm, but upon another lease, and about July 1st 1878, was successful in obtaining oil in large quantities, Soon after this M. K. Armstrong, one of the defendants, importuned Reep to lease to him the ten acres in dispute, when Reep informed him that he had leased it with other land to Munroe. Armstrong then went in search of Clark & Lilly and purchased from them -whatever interest they had in the premises, taking an assignment upon the old lease. Armstrong, in July 1878, went upon the ground and ■ commenced operating for oil. Munroe immediately notified him that the premises belonged to him and that he must desist. He still persisted in operating, and this suit was brought. The well was completed about December 1st 1878, and had since been producing oil in large quantities. Prior to the bringing of this suit, Armstrong had sold an interest in'the lease to William Story, his co-defendant.
    The court held that there was no forfeiture under the lease made by Reep to Clark & Lilly and assigned to the defendants, and instructed the jury that they must return a verdict for the defendants, which was done. After judgment thereon, the plaintiff took this writ and alleged that the court erred in thus instructing the >ry-

      Eckley Marshall and Thompson Scott, for plaintiff in error.
    The court erred in not submitting the question of forfeiture to the jury, it being a fact proper for their consideration. The plaintiff claimed that it was clearly a forfeiture. This lease could have no value except by development. ' A forfeiture for non-development or delay cut off no valuable right of property, while such covenants were essential for the protection of private and public interests, in relation to the use and alienation of property, and was a protection to the lessor against fraud, delay and non-performance. Time was the essence of the contract, and in cases like this, equity will follow the law and will enforce a covenant of forfeiture as essential to justice: Brown v. Vandergrift et al., 80 P. F. Smith 142; Stoughton’s Appeal, 7 Norris 198. The lease was to run for twenty years ; any other construction would have given the party the right to hold it for the period mentioned in the lease without development or any benefit to the lessor. During which time also the adjacent lands might have been perforated with wells, and the oil of the lands of the lessor would have been exhausted by surrounding wells without any accruing benefit to Reep, the lessor. Armstrong can claim no equities, because before he took an assignment of the lease from Clark & Lilly he had full notice from Reep and Munroe that the land had been leased to the latter, who was in possession of the same. Pie also had notice of the forfeiture of said land to Clark & Lilly, and importuned Reep to lease the land to him, claiming that the lease to Clark & Lilly was forfeited.

      C. Walker and J. D. McJunkin, for defendants in error.
    Had there been any dispute in regard to the facts bearing upou the question of forfeiture, the only question in the case upon the trial below, the position of the plaintiff in error, would have been well taken. There was no dispute of this kind, however. That the work after the completion of the first well was suspended for more than thirty days, and that oil, in paying quantities, was not obtained in said first well, were clearly proven and freely admitted at the trial. Why then submit undisputed facts to the jury ?
    The whole question resolves itself into the single proposition, viz. : Did the court below err in interpreting the written lease and assignments under the light of the admitted and undisputed proofs, and in directing a verdict for the defendants ? Or, ‘does the lease bear such interpretation ? The facts and circumstances of the case of Brown v. Vandergrift, supra, cited by counsel for plaintiff in error, were very different from those of this case. The argument that the ruling of the court below might have led to the land of Reep being drained, is not to control in a ease such as this, where the lease was developed and is being "properly worked. The rulings of the court, we contend, administered the law and certainly justice to the parties in this case.
   Mr. Justice. Trunkey

delivered the opinion of the court, November 26th 1880.

The lease from Reep to Clark & Lilly is for the term of twenty years, unless forfeited; exclusively for the purpose of producing oil; the work to be commenced in ten days, and continued with due diligence until success or abandonment; and if the lessees fail to get oil in paying quantities, or cease to work for thirty days at any time, the lease to be forfeited and void. As respects diligent prosecution of the work by the lessees, and what act of theirs would annul the lease, there is no room for interpretation, for the contract could not be expressed in simpler language. The agreement is plain that if the lessees failed to get oil in one well they had right- to put down another, and as many more as they pleased, so long as they worked with diligence to success or abandonment, and equally plain .that a cessation of work for thirty days would end their lease. They were not bound to do more than make a reasonable search for oil, but they were bound to operate or quit; they could not hold on and be idle. The contract did not require them to keep on drilling oil wmlls indefinitely and without cessation, for twenty years nor for any indefinite length of time; neither did it entitle them, after the drilling of the well, to hold the lease for twenty years without working it. Even at the beginning of the lease, the. duration of the term was qualified by the words, “ unless forfeited.” The question seems to be, shall the concise and clear expression of the agreement of these parties, as written, give way to imaginary terms more favorable to the lessees ?

What is there in the circumstances calling for a fiction to defeat the covenant against delay in searching for or producing oil ? The subject of the lease was a fluid likely to flow for a considerable distance through the crevices a.nd loose sand where it is found. A small tract of land could be nearly or entirely drained by wells on adjoining lands, and it is common that leases contain covenants for diligent operation and for forfeiture in case of suspension. An oil-lease yields nothing to the landowner, when not worked, and is an encumbrance on his land, tying his hands against selling or leasing to others; but when idle it costs the lessee nothing, and is valuable, or may prove valuable, if he can hold it awaiting .developments in its vicinity. If a well bo productive it is the interest of both lessor and lessee that it be continuously operated till its exhaustion, hut if di’y, it is of no value. Holding on to a lease after ceasing search is often for purposes of speculation, the thing which a prudent landowner guards against. Forfeiture for non-development or delay, is essential to private and public interests in relation to the use and alienation of property. In such cases as this equity follows the law. In general equity abhors a forfeiture, but not when it works equity and protects a landowner from .the laches of a lessee whose lease is of no value till developed, except for a purpose foreign to the agreement: Brown v. Vandergrift, 30 P. F. Smith 142.

At the trial, the parties admitted that Clark & Lilly commenced and completed a well, and kept their covenants up to October 1877; that from the 1st of November 1877 until July 1878, they ceased operations and did no work ; that Clark and Lilly assigned to Armstrong, who, in the latter part of July 1878, put down a well and was successful in getting oil, which well was almost completed before this suit was brought; that Reep leased sixteen acres, including the ten in controversy, to Munroe, who had knowledge of the former lease to Clark & Lilly, and also of the time they had ceased work, and he took his lease from Reep at his own risk; that Armstrong.had knowledge of the fact that Reep had leased to Munroe before he took the assignment from Clark & Lilly, and before commencement of operations by Armstrong he had express notice not to go on to develop and expend money on the property, and that Munroe claimed and held the lease of the property.

In the rapid development and exhaustion of oil lands, cessation of work for nine months is a long period. Often, in far less time, the fluctuation in prices of lands and leaseholds is very great. Perhaps in no other business is prompt performance of contracts so essential to the rights of the parties, or delay by one party likely to prove so injurious to the other. Nothing in the facts proved or admitted shows -a waiver of strict performance by Reep, or anything which in equity should relieve Clark & Lilly from the consequences of their broken covenant. Yt was the province of the court to declare the meaning of the agreement, and upon the admitted facts the jury ought to have been instructed to render a verdict for the plaintiff.

Judgment reversed and venire facias de novo awarded.


author: Mr. Justice Green

text:
    Perdue versus Commonwealth.
    1. Where a defendant has been convicted upon two separate trials this eourt-is bound to presume, that upon the merits of the case, his guilt was clearly established, but judgment will be reversed where the indictment on which the defendant was convicted was utterly inadequate.
    2. This court will not reverse for defects of grammar or rhetoric in an indictment if a definite statement of a positive offence can be eliminated therefrom.
    3. A conviction for perjury cannot be sustained-where it is founded on an-indictment which does not contain a solitary averment, intimation or innuendo that any fact set forth in the answer to a bill in equity was false or untrue.
    November 15th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Siiarswood, C. J., absent.
    Error to and appeal from the Court of Quarter Sessions of Butler county: Of October and November Term 1879, Nos. 181 and 182.
    Indictment of John T. Perdue, for perjury.
    The information was as follows :—
    Butler County, ss.
    Before me, a justice of the peace in and for said county, came George S. Long, who being by me duly sworn according to law, doth depose and say, that a certain John T. Perdue, on the 20th day of February 1873, in a certain judicial proceeding then and there held before one M.. S. Ray, a justice of the peace in and for said county, in which proceeding the said John T. Perdue made oath to the facts contained in his answer to a bill of equity filed against the said John T. Perdue by deponent and his wife, Mary A. Long, in equity No. 1, March T. 1873, in which answer the said John T. Perdue wilfully, falsely, knowingly and corruptly did commit perjury by swearing that one Mary A. Long was not an equal and joint owner of a leasehold estate described in said bill, containing eight and.one-quarter acres, with John T. Perdue ; also that a certain lease obtained from one A. C. Gibson and others was not obtained by, through or for use or account of Mary A. Long and Geo. Long, or either of them, and that the same was, by their direction, wholly denied; also that defendant and Mary A. Long did not demand from John T. Perdue one-half interest in and to said leasehold, to wit, situate on the Widow Smith farm, in Eairview township, containing eight and one-quarter acres.'
    He therefore prays that' a warrant may issue for the arrest of said John T. Perdue, and that he be held to answer a charge of wilful and corrupt perjury; and he will ever pray, &e.
    G. S. Long.
    Sworn and subscribed before me, this 15th day of January 1878.
    J. G. Muntz, J. P.
    Upon this information, without warrant or process for the defendant, Long appeared before the grand jury of Butler county and a true bill was found on January 13th 1878.
    The indictment was as follows :—
    In the Court of Quarter Sessions of the Peace for the county of Butler, of January Session 1878.
    Butler County, ss.
    The grand inquest of the Commonwealth of Pennsylvania, now inquiring in and for the body of the county of Butler, upon their oaths and solemn affirmations, respectfully do present:
    That ata certain judicial proceeding [held before oneM. S. Ray, Esq., one of the acting justices of the peace in and for the said' county of Butler, he, the said M. S. Ray, being duly commissioned and sworn, and having full power and competent authority to administer oaths], in which judicial proceedings George S. Long and Mary A. Long were plaintiffs, and John T. Perdue defendant, late of said county, in which judicial proceedings the said George S. Long and Mary A. Long had previously exhibited and filed their bill in equity, as plaintiffs in the Court of Common Pleas of said county of Butler, at equity No. 1, March Term 1873, against the said John T. Perdue as defendant, and in said bill in equity as aforesaid, among other things stated, alleged in substance and to the effect following, to wit: that he, the defendant, John T. Per-due, was to hold an eight and a quarter acre lease on the Smith farm in trust for himself and the said Mary Ann Long, the plaintiff, as equal joint owners thereof, that is, one-half to the said John T. Perdue and the one-half to the said Mary Ann Long; that by the direction of the plaintiffs- the said Andrew Gibson and others, owners of said eight and a half acres of land on Smith farm, and in pursuance of their agreement to lease the same to said plaintiffs, and according to the terms and stipulations thereof, on or about the 1st day of June 1872, made, executed and delivered to the said defendant, J. T. Perdue, in writing, a lease for said described eight and a half acres, and that a well having been struck on said lease, the defendant, John T. Perdue, unlawfully desired the property of said Mary Ann Long, and refused to convey to her the undivided one-half thereof according to his agreement in pursuance of the trust, asserting and saying that the plaintiff has no other or greater interest therein than the repayment by him to her of the money so expended by her, and that the plaintiffs, George S. Long and Mary A. Long, on or about the 28th day of December 1872, and at different times before the filing of this bill in equity as aforesaid, have demanded from the defendant, John T. Perdue, a conveyance of her one-half interest' in the said described lease and oil well, which the defendant has refused and denied her right thereto and interest therein, as in and by the said bill in equity of the said George S. Long and Mary Ann Long as remains on file at No. 1 of equity docket, March Term 1873, as aforesaid, amongst other things, more fully appears.
    [And the inquest aforesaid, upon their oaths and affirmations, do further' present: That on the trial of the said issue between the parties as aforesaid, it became and was a material question between the said parties, in said judicial proceeding as aforesaid, whether the said John T. Perdue was to hold an eight and a quarter acre lease on the Smith farm in trust for himself and said Mary Ann Long, the plaintiff, as equal joint owners thereof, that is, one-half to the said John T. Perdue and one-half to the said Mary Ann Long, and whether or not the plaintiffs, on or about the 28th day of December 1872, and at different times before the filing of the bill in equity as aforesaid, demanded from the. defendant aforesaid, a conveyance of her one-half interest in said lease and wells, and which the defendant has refused, denying her right and interest therein in every way, and whether or not the defendant, John T. Perdue, since the striking of said well, unlawfully desired the title and property of the plaintiff, Mary A. Long, in said described premises, and whether or not the said John T. Perdue refused to convey her interest, the undivided one-half thereof, according to his agreement in pursuance of the trust, and whether or not he did say that the plaintiff has no other or greater interest therein than the repayment by him to her of the money so paid and expended by her, and whether or not said statements, as in said bill in equity contained were true.]

      And the inquest aforesaid, upon their oaths and affirmations aforesaid, do further present: That John T. Perdue, yeoman, late of said county of Butler, not having the fear of God before his eyes, but being moved and seduced by the instigations of the devil, and intending to aggrieve the said George S. Long and Mary A. Long, plaintiffs in the bill of equity as aforesaid, on the 20th day of February 1873, in the county of Butler aforesaid, and within the jurisdiction of this court, did appear before one M. S. Ray, one of the justices of the peace in and for said county aforesaid, and then and there did exhibit and produce to said M. S. Ray, justice of the peace as aforesaid, the printed answer of him, the said J. T. Perdue, to the said bill in equity of said George S. Long and Mary Ann Long as aforesaid, and was then and there sworn in due form of law by the said M. S. Ray as aforesaid, and then and there did take his corporal oath, with uplifted hand, that the facts contained in his said answer as aforesaid, to the bill of said plaintiffs as aforesaid, were correct and true, which said oath was then and there administered by M. S. Ray, justice of the peace as aforesaid, he, the said M. S. Ray, having full power and competent authority to administer the oath, and the said John T-. Perdue being so moved as aforesaid, did then and there, knowingly, falsely, corruptly, wilfully, injuriously and maliciously answer, swear and depose, before the said M. S. Ray, justice of the peace as aforesaid, amongst other things, in substance as follows: That Mary A. Long, being the plaintiff in said bill, was not an equal and joint owner of a leasehold estate on the widow Smith farm described in said bill, containing eight and one-quarter acres, with John T. Perdue, and that said leasehold, obtained from A. C. Gibson and others, was not obtained by, through or for use, or account of Mary A. Long and George S. Long, or either of them, and that said leasehold was, by their direction, wholly denied; also that the said George S. Long, and Mary A. Long, or either of them, did not demand from John T. Perdue, defendant in said bill, the one-half interest in and to said leasehold on the widow Smith farm, containing eight .and one-quarter acres, that the said plaintiffs, George S. Long and Mary A. Long, are not entitled to the title or possession of said leasehold, whereas in truth and in fact he, the said John T. Perdue, then and there well knew the said Mary A. Long, plaintiff in said bill of equity as aforesaid, was an equal and joint owner of said leasehold estate on the widow Smith farm described in said bill, containing eight and one-quarter acres, with the said John T. Perdue, defendant, therein, whereas in truth and in fact, as he, the said John T. Per-due, then and there well knew that the said leasehold estate on the widow Smith farm, obtained from A. C. Gibson and others, was obtained by, through or for use or account of Mary A. Long and George S. Long, and for either of them, and that said leasehold as aforesaid, was obtained by the direction of said plaintiffs, George S. Long a-nd Mary Ann Long, whereas in truth and in fact as he, the said John T. Perdue, then and there well knew, that George S. Long, by request of Mary A. Long, and the said Mary A. Long, did demand from John T. Perdue one-half interest in and to said leasehold, containing eight and a quarter acres, on the widow Smith farm ; and whereas, in truth and in fact, the said plaintiffs, George S. Long and Mary A. Long, were entitled .to the title, possession and conveyance of one-half of the leasehold on widow Smith farm, as in said bill mentioned.
    And the inquest aforesaid, inquiring as aforesaid, upon their oaths and affirmations aforesaid, do further present: That J. T. Perdue, yeoman, of said county of Butler, on the twentieth day of February, in the year of our Lord one thousand eight hundred and seventy-three, with force and arms, in the county of Butler aforesaid, and within the jurisdiction of this court aforesaid, before the said M. S. Ray, justice of the peace as aforesaid, upon his oath aforesaid, by his own act and consent, and of his own most wicked and corrupt mind and disposition in manner and form aforesaid, did unlawfully, knowingly, falsely, wickedly, maliciously, wilfully and corruptly commit wilful and corrupt perjury, contrary to the form of the Act of the General Assembly, in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.
    On June 10th 1878 the defendant moved to quash the indictment for the following reasons: 1. The information does not sustain the indictment. 2. There is no offence of perjury laid in the indictment. 3. There is no legal certainty in the indictment. 4. • The indictment attempts to charge perjury in the defendant’s swearing to an answer to a bill in equity before a justice of the peace; for this perjury will .not lie. 5. The indictment attempts to charge perjury in the defendant’s swearing to an answer to a bill in equity; perjury will not lie. 6. Other reasons, apparent on the face of the indictment and information. 7. Additional reason: There is no averment that the court took judicial cognisance of the bill in equity, or by any judicial order required the defendant to answer thereto.
    The court overruled the motion to quash, and after a trial the prisoner was convicted on June 18th 1878. A hew trial upon terms was granted September 21st 1878.
    On March 17 th 1879 a motion in arrest of judgment and to quash indictment was renewed and argued.
    On March 18th the court directed a motion to amend the bill of indictment by striking therefrom as 'surplusage the allegation in the bill “that there was a judicial proceeding before M. S. Ray, in which George S. Long and wife were plaintiffs and John T. Perdue defendant,” and the first allegation, “ that it became and was a material question in the trial of the issue in said judicial proceeding.”

      On June 18th 1879 there was a trial and a verdict' of guilty in manner and form as indicted; and on June 25th defendant was sentenced to pay a fine of $500 to the Commonwealth and costs of prosecution, and undergo an imprisonment at labor in the Western Penitentiary for the period óf three years.
    On June 26th 1879 a writ of error was allowed by the Hon. Jambs P. Stebrett, of this court, and on July 1st 1879 the defendant took this writ, and alleged that the court erred, inter alia, as follows: 1. In refusing to quash the bill for reasons filed June 10th 1878. 2. In amending the bill. 3.
    In refusing the motion in arrest of judgment and striking out the amendment to the bill. 5. In directing the motion to amend the bill, when not asked by the Commonwealth and not desired by the defendant, to strike from the bill the allegation “ that there was a judicial proceeding before M. S. Ray, in which George S. Long and wife were plaintiff and John T. Perdue defendant,” and the allegation “that it became and was a material question in the trial of the issue' in said judicial proceeding.” 6. In striking from the bill of indictment as surplusage the parts enclosed in brackets. 7. In refusing the motion in arrest of judgment and passing sentence on defendant.

      J. M. Thompson, L. Z. Mitchell, E. R. Eckley and Newton Black, for plaintiff.
    The indictment was irregularly found and the action of the grand jury was void. The amendments were illegal. It was the duty of the court to quash or refuse to quash, but we submit it was not within its power to make a new bill even out of the old material. Are these allegations which have be.en treated as surplusage material ? It would seem that the pendency of a judicial proceeding and its forms were of pilme importance. Why, then, strike them out? It will not do to say the pleader made a. mistake. How do we know? -No affidavit is filed, no motion made, no reason assigned, and yet matter, of the greatest materiality is struck out by a dash of the pen, and an indictment fatally defective is sought to be restored to life by judicial action six years and more after the commission of the alleged misdemeanor. Against all this the defendant has protested, step’by step, and now submits whether an indictment must not emanate from a grand jury alone, and that it was not in the power of the court to patch up and amend where it is materially defective, and then force him to trial for a high crime involving his liberty and his rights as a citizen.

      W. A. Forquer, District Attorney Lev. McQuistion & S. F. Bowser, for the Commonwealth.
    The indictment was good without the amendment, and Perdue was not prejudiced in his defence to the merits by the amendment. He knew what he was called upon to answer. The court simply treated the matter in the indictment as surplusage. They did not strike it out. By treating the alleged defective portion of' the indictment as surplusage, it still charges in apt 'and sufficient words the offence in technical language and with substantial certainty and precision. Courts of justice are disposed.to treat as surplusage all erroneous and improper averments in indictments, when the residue of the allegations set out the offence in technical language and with sufficient certainty: Commonwealth v. Hunt, 4 Pick. 252; Commonwealth v. Pray, 13 Id. 359 ; Commonwealth v. Randall, 4 Gray 36 ; Commonwealth v. Simpson, 9 Metc. 138. It is obvious that the offence designed to be is charged in this indictment, and although it may contain expressions not appropriate in the description, they could not have misled the defendant, therein as to the charge he was called upon to answer and did not render the indictment defective.

       The paragraphs in brackets were stricken out by court as surplusage.

   Mr. Justice Green

delivered the opinion of the court, January 3d 1881.

The plaintiff in error having been convicted upon two separate trials, we are bound to presume that upon the merits of the case his guilt was clearly established. ' It is of course very desirable in such cases to sustain the proceedings if it can be done. Animated by such a purpose we have expended valuable time, which we could poorly afford to spare, in an effort to sustain the indictment in this case. But it has proved a hopeless task, and with reluctance we are compelled to reverse the judgment on the sole ground that the indictment is utterly inadequate. It is written in flagrant disregard of the rules of grammar and of rhetoric. But for such defects we would not reverse if we were able to eliminate from it a definite statement of a positive offence. But that can not be done. Certain portions of the indictment are claimed to have been stricken out by the court, in the history of the case printed by the plaintiff in error, and these portions are indicated by brackets around them, and a pen stroke across them. The docket entries are not clear on this subject, but they partially sustain the allegation, and the counter statement for the Commonwealth contains no denial of it. We, therefore, assume it to be true. The contents of the indictment indicate an attempt to charge the defendant with the commission of perjury in an answer to a bill in equity. The first paragraph of the bill is a recital with a beginning hut without an ending. As it was originally drawn, and as found by the grand jury, it recited a judicial proceeding before a justice of the peace, in which Long and wife were plaintiffs and Perdue was defendant, “in which judicial proceeding the said George S. Long and Mary A. Long had previously exhibited and filed their bill in equity as plaintiffs, in the Court of Common Pleas of said county of Butler, at equity, No. 1, March Term” 1873, &c. This was such a confused and contradictory medley that the court below, of its own motion, struck out the allegation of a judicial proceeding before the justice. As thus amended, the first paragraph is in the following form : “ That at a certain judicial proceeding — in which judicial proceeding, George S. Long and Mary A. Long were plaintiffs, and John T. Perdue defendant, late of said county, yeoman, in which judicial proceeding,” the plaintiffs had filed their bill in equity, and, among other things, stated that the defendant held a certain lease in trust for himself and the said Mary A. Long, of'a piece of land on the Smith farm, on which an oil well was struck, which the defendant subsequently claimed as his own, and refused to recognise any interest of Mrs. Long therein, and that a conveyance of her interest was demanded and refused by the defendant, and there stops. Immediately following this in the bill of indictment as originally drawn and found by the grand jury, was an averment that, “ on the trial of the said issue between the parties as aforesaid,” although no issue whatever between any parties had been previously described or in any manner mentioned or referred to, a certain material question arose. The whole of this part of the indictment was stricken out by the court. The reason for this probably was, that the only “issue” to which this averment could possibly relate was an issue in the judicial proceeding before a justice of the peace; but as the subject-matter of the proceedings had been described as a bill in equity relating to a lease of land, it was impossible that a justice of the peace could have jurisdiction of such a proceeding, and as it was extrajudicial no amount of false swearing committed in the course of it could be the subject of an indictment. But whatever may have been the reason for striking out this portion of the indictment, there was no longer remaining in it an averment of any issue or of any material fact in controversy between the parties. The next following, being the third paragraph of the indictment, alleges in substance, though overloaded with redundant words, that the defendant, on the 20th of February 1873, appeared before the same justice of the peace before named, and produced his printed answer to the aforesaid bill in' equity, and made oath that the facts contained in the answer were true. This is the only and the last allusion to the answer or to the facts therein contained and set forth, that is to be found in the indictment. There is no allegation that the facts set forth in the answer were in any respect false or untrue, or that they were in any degree material to the determination of any matter in controversy between the parties. There are further averments in the indictment. They are introduced as follows : “ And the said John T. Perdue being so moved as aforesaid, did then and there knowingly, falsely, corruptly, wilfully, injuriously and maliciously answer, swear and depose, before the said M. S. Ray, justice of the peace as aforesaid, amongst other things in substance, as follows : ‘ That Mary A. Long, being the plaintiff in said bill ,was not an equal and joint owner of a leasehold estate,’ ” &c., &c., to the end. This is an allegation that Perdue -testified or deposed before the justice to the facts set out in the remainder of the indictment. It is in no respect an allegation that those or any other facts were contained in the printed answer. Of course the justice had no power to take any such testimony, except upon a proper rule or commission to take depositions, of which there is no pretence. It is amazing, but it is the fact, that the indictment does not even allege that the defendant’s oath before the justice to the truth of the facts set forth in the answer was a false oath. So that in reality, although this instrument purports to be an indictment for perjury in an answer to a bill in equity, it does not contain a.solitary averment, intimation or innuendo that any fact set forth in the answer was false or untrue in any particular. It is lamentable that the county of Butler should have been subjected to the annoyance and expense of two criminal trials upon so worthless a paper as this. It should have been quashed at once upon the hearing of the first motion to that effect, and it will be the duty of the court below to quash it now. It is impossible for us to sustain a conviction founded upon such an instrument.

Judgment reversed, and record remanded with this opinion setting forth the cause of reversal to the Court of Quarter Sessions of Butler county for further proceedings.


text:
    McCutcheon, to use of Gregg, versus Allen.
    1. Courts have' no power to strike off a "judgment regular on its face, nor compel it to be satisfied when the facts are controverted. The proper course is to award an issue.
    2. Where a judgment has been regularly entered the amount thereof cannot be reduced by the court without the plaintiff’s consent. Its validity should be passed upon by a jury.
    3. Where an appeal does not lie.
    November 16th 1880.
    Before Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ. Sharswood, C. J., absent.
    Certiorari to the Court of Common Pleas'of Butler county: Of October and November Term, 1879, No. 325.
    Scire facias sur mortgage issued by Charles L. McCutcheon, for the use Of David Gregg, against Robert Allen.
    In the court below, Allen presented a petition which, in substance, set forth that after execution issued on March 3d 1879, Robert Allen presented a petition to court saying that on or about January 24th 1876, he had procured from David Gregg a loan of $518,380, and had given a mortgage and bond on his property in Butler county for $22,000; that the mortgage and bond were executed to Charles L. McOutcheon, but was a transaction with David Gregg; that McCutcheon assigned the mortgage to David Gregg; that the interest was payable semi-annually; that on the 1st of August 1876, he paid $500 on interest account; that on the 28th of May 1877, he paid Robert Robb, Gregg’s attorney, $1000, and executed and delivered to Mr. Robb his note for $1000 (afterwards appeared to be note for $1500), due in four months as payment on the mortgage, which note was still outstanding; that the -whole amount of the mortgage, including interest, would be $21,688.40, deducting payments made on the mortgage, money paid and notes given, the balance due David Gregg would be $19,008.67 ; that on March 2d 1877, a sci. fa. issued on the mortgage; and that he filed an affidavit of defence, alleging usury, and that the interest was all paid; that Robert Robb, attorney of David Gregg, met him, Allen, on May 28th 1877, in Butler, and represented to him that if he would withdraw his affidavit of defence and confess judgment for the principal and interest of said mortgage, he would take a judgment due February 1st 1881, with interest payable semi-" annually; that said Robert Robb fraudulently procured his, Allen’s, signature to a written confession of judgment in the sum of $24,440, with interest from that date, without any stay of execution, as agreed upon, to the 1st of February 1881, which confession was procured by the above fraudulent and false representations of Robert Robb, attorney for David Gregg; that execution had been issued on the j udgment for $24,440 ; that after the confession of judgment, he, Allen, had executed and delivered to Robert Robb, attorney for David Gregg, his note for- $500 and another note for $100. He prays the court to set aside the execution, grant a rule to show-cause why said judgment should not be opened and satisfied to the extent of the usury and attorney’s commission contained therein, and the payments made and to stay all proceedings to 1st of January 1881.
    A rule to show cause was granted as prayed for
    David Gregg answering the petition of Allen, in substance said: In January 1876, Charles L. McCutcheon came to his store in Pittsburgh and represented that he held a mortgage on lands of Robert Allen in Butler county for $22,000 ; that the property was worth $100,000 ; that the mortgage had four years to run with interest payable semi-annually; that after several interviews with Mc-Cutcheon he purchased the mortgage, taking an assignment of the same after McCutcheon furnished a certificate from Robert Allen saying he owed the money and had no defence to it; that he paid McCutcheon for the mortgage $19,360 ; being the amount of the mortgage less the discounts, and received the bond and mortgage duly assigned : that he had no negotiation whatever with Robert Allen in reference to the mortgage. On the 24th of August 1876, Robert Allen paid him $500 on account of interest, and that is ail the money he ever received from him on the mortgage. In March 1877, no interest being paid that was due, he placed the mortgage in the hands of Robert Robb for collection ; specifically denied Allen’s statement, that he procured a loan from him, Gregg, and had nothing to do with Allen in reference to the purchase of the mortgage paid McCutcheon as aforesaid; denied that Robert Allen paid him $1000 on the 28th of May 1877, or at any other time or any sum whatever on account of the mortgage at any time save the $500 aforesaid, on the 24th of August 1876 ; denied that Allen ever gave any notes as payment on the mortgage, or that he ever gave any notes to anybody with his knowledge as payment on the mortgage, that he would not be likely to accept an unsecured promissory note, when he already had mortgage security; that the amount of money due on the mortgage without any usury or discount on the 18th of Febuary 1879, allowing credit of $500 paid was $22,412,57, to which add five per cent, attorney's commission for collection, instead of $19,008.67, when Robert Allen confessed judgment for $24,440 ; that he agreed to the arrangement of Mr. Robb with him, to throw of $1000 on account of discount or usury with the agreement that Allen was to pay the interest promptly semi-annually.
    Robert Robb for answer to so much of Robert Allen’s petition as refered to him, said: That in March 1877, David Gregg placed in his hands for collection a mortgage on Robert Allen’s property for $22,000; he brought suit on the mortgage in Butler county, and learning afterwards that Allen had filed an affidavit of defence to the mortgage, he entered judgment on the bond accompanying the mortgage about the latter part of April 1877, and issued a testatum fi. fa. to Butler county and levied upon the real estate and advertised it for sheriff’s sale. Shortly after this-Allen came to Pittsburgh and desired an extension of time; that he had very large interests in coal and oil leases in Butler county with Thomas A. Scott et al., and if he could get a little time he could convert his leases into money and pay off the entire mortgage. He said the sale of his property would ruin him, and if he could get time he could pay all; at his urgent request Robb agreed to see Mr. Gregg, and Mr. Gregg agreed to give time, provided his security remained unimpaired; Robb and Allen met in Butler May 28th 1877, and it was agreed that Allen should withdraw his affidavit of defence and confess judgment for the mortgage and interest then due and attorney’s commission of five per cent., and that Mr. Gregg would extend the time of the mortgage for one year or till February 1st 1881, and allow Mr. Allen a credit of $1000 on interest accruing thereafter, or a deduction of that amount on the discount that was on the mortgage, and that Allen should pay the interest falling due on the judgment semi-annually, according to the terms of the mortgage,» all proceedings and execution to be stayed.
    A year passed and no interest being paid, Mr. Gregg directed me to proceed to collect the mortgage. Mr. Allen never gave any notes of any amount whatever as payment on the Gregg mortgage ; could not accept such a thing, as I had no authority to do so from Mr. Gregg ; the notes given were for my own services rendered Robert Allen in perfecting his title to his leases. There was no fraud practised by me on Mr. Allen in his confessing judgment, but on the contrary, it was not done until after a full and fair understanding on his part, and the time was extended on condition that he would pay the interest promptly, which he has failed to do. When employed by Robert Allen to perfect his title to his leases I found them quite complicated, and it required a great deal of labor to put them in a condition that would make them available. The service necessary I rendered 'and the money paid in Butler, and the notes given were for my services in the employ of Mr. Allen, and had no connection whatever with the Gregg mortgage. The paper given Mr. Allen, which he put in evidence, shows what the contract was. The services I rendered Mr. Allen were professional services and done in the uttermost good faith.
    After argument the court made the rule absolute, and reduced the judgment to $19,086.67. Gregg took an appeal from this action of the court, alleging that the court erred, inter alia, in reducing the judgment on an ex parte hearing of the case, and in not referring the disputed facts to a jury.

      J. M. Thompson and Newton Black, for appellant.
    The plaintiff presented his petition reciting the facts fully, praying the court to revoke its order of 29th May 1879, reducing the judgment to $19,086.67, and to allow him to defend against the allegations of Allen’s petition, and to direct an issue to try all questions in dispute. On this rule testimony was taken — to which the attention of this court is respectfully called — and after due consideration this rule was, on the 18th September 1879, discharged. The only course for- plaintiff was to appeal to this court and ask that they examine his case, and if satisfied that'he has been injured, to grant him relief, as has been done in analogous cases by this court where the court below granted rules to show cause, and after hearing discharged them. Appeal was taken to this court, and the order of the court below was reversed and procedendo awarded. See Neff v. Miller, 8 Barr 348; Roddy’s Appeal, 22 P. F. Smith 98, also Steele’s Appeal, Id. 101, where “ appeal ” is recognised as the remedy. ,

      E. R. Eckley and Charles McCandless, for defendant in error.
    An appeal will not lie in this case. It can only be reviewed on a writ of error.
   Mr. Justice Mercur

delivered the opinion of the court, November 26th 1880.

■ The record shows a scire facias issued on a mortgage, service of writ accepted by the defendant, and affidavit of defence filed. Afterwards the affidavit of defence was withdrawn and judgment confessed by the defendant for a sum specified as per writing filed. Thus it is shown to have been a judgment in all respects regular in form.

On petition of the defendant the court afterwards granted a rule to show cause why the judgment should not be opened and satisfied to the extent of a sum specified in petition. ' An answer was filed denying the averments in the petition. Depositions were taken, and after argument the rule was made absolute and judgment reduced as prayed for. Thus the court in effect ordered satisfaction to be entered for a part of the judgment. The discretion of the court in 'opening the judgment we will not review'. But in ordering satisfaction to be entered of a part of the judgment, when the facts were disputed and there was no agreement to submit to the decision of the court, ivas error. The court has no power to strike off a judgment regular on its face when the facts are controverted: Breden v. Gilliland, 17 P. F. Smith 34; nor to compel it to be satisfied. The proper course is to award an issue: Homer & McCann v. Hower, 3 Wright 126. The plaintiff therein cannot be deprived of his constitutional trial by jury unless he has agreed to waive it. In this case the record does not show any waiver, 'and it was admitted on the argument there was no such agreement. The evidence is persuasive that the judgment was the result of a compromise of the plaintiff’s claim. Against his consent he cannot be deprived of it without its validity being passed upon by a. jury. Regularly this should be reviewed on writ of error. We can now change to one, and it is ordered accordingly. An appeal does not lie;

Judgment reversed, and a procedendo ordered.