text:
    Elliott v. Ackla.
    A tenant for years of a devisee, purchased the land under a judgment against, the devisor. The estate of the devisee'had previously been sold under a judgment against him. The tenant purchasing under the judgment against the devisor holds by a title paramount to his lessor, and is 'within the provisions of the 114th section of the act of 1836, and hence not liable to summary proceedings to obtain possession on the part of the purchaser of the estate of his landlord.
    In error from the Common Pleas of Bradford.

      July 17. Proceedings to obtain possession by a purchaser at sheriff’s sale. In 1843, judgment was recovered against Amos Ackla, and the land in question sold by the sheriff to the present plaintiff. He gave three months’ notice to the defendant in possession, and then commenced summary proceedings before two justices to obtain possession. The defendant appealed to the Common Pleas, and the question was whether his affidavit was sufficient. The facts set forth were as follows:—
    In 1841, defendant leased the premises of Amos Ackla for one year, renewable for six years; under this he entered and held until May, 1844, since which time he held in his own right. All the right, title, and possession of Amos Ackla, were devised to him by his father, Benjamin, in 1835. During Benjamin’s lifetime a judgment had been recovered against him which bound the land. This had been revived by amicable scire facias, and confession by the executors of Benjamin in 1836 and 1841, under which execution had been issued and the land sold and conveyed by the sheriff to the present defendant. The defendant further averred that he was in possession by virtue of a title derived to him by operation of law from the person under whom Amos Achia claimed, before the judgment under which the sale took place to Elliott — “ meaning that his right dates back to the entry of the judgment against Benjamin Ackla, in 1835.” The justices gave judgment for the plaintiff, and issued a writ of possession. Conyngham, P. J., reversed the decision of the justices, and awarded a writ of restitution to the defendant — considering the affidavit as sufficient to entitle him to appeal.
    Overton, for plaintiff in error,
    contended, that the affidavit did not show any title to the land in defendant, since the judgment against Benjamin Ackla had not been revived against his heirs, and hence the lien was gone; that it did not show that Amos took possession under his father’s will, or that the relation of landlord and tenant had been dissolved.
    -, contrá.

      July 24.
   Bell, J.

The question at issue arises under the 114th section of the act of 1836, relating to executions. The second clause of the section provides, that if the person in possession of the premises shall make oath or affirmation, before the justices, that he has come into possession under title derived to him from the defendant in the execution, before the judgment under which the execution and sale took place, the justices shall forbear to give judgment. The ingenious argument of the learned judge below, that the case presented by the affidavit of the defendant, Smith, is within the literal meaning of the language of the clause, presents an array of reasoning which, looking to the general tenor of the statute, the inquirer feels indisposed to confute. But though it should be conceded that the judge has not entirely succeeded in this, the second ground on which he founds his judgment, that the defence offered is within the spirit of the statute, cannot, we think, be controverted.

The object of the legislature in providing this summary remedy and the analogous one given to lessors by the landlord and tenant act, was to avoid the delay and expense attendant upon an action of ejectment, in cases where the elements are few and simple, and, therefore, easy of determination. Both the acts provide for a transfer of the proceedings to the Common Pleas, whenever it is made to appear to the magistrates that the rights of third persons, under certain circumstances, are involved, requiring a more deliberate and solemn inquiry than is contemplated before the justices and their inquest. These statutes, in reference to the present inquiry, may be said to be in pari materia. The object of both is to give an easy remedy to a complainant, under their respective provisions, without, however, putting it within his power to perpetrate a wrong upon others. To effectuate this general intent, they are to be so construed as, on the one hand, to prevent the improper impeachment of the title of the landlord or purchaser, and on the other, to let in the exhibition of a title, not inconsistent with, but controlling that set up by the complainant. An example of this liberality of construction is furnished by the case of Newell v. Gibbs, 1 W. & S. 496. The 13th section of the act of 1T72, under which the question in this case arose, by its terms confines the allegations of the tenant in possession, in bar of the summary proceedings, to a right or title accrued or happening since the commencement of the lease, by descent, deed, or from or under the last will of the lessor. But as the object of this provision was to prohibit the lessee from attacking the title of his landlord, and not to enlarge the rights of the latter, it was held that a former sub-tenant might aver the termination, by lapse of time, of his immediate lessor’s estate before the initiation of the summary proceedings, and a title in another not derived from the immediate lessor but paramount to him, by purchase of his landlord’s estate, under which the tenant now claims to hold. The tenant did not, as remarked by the court, offer to prove a literal compliance with the act; but he proffered what was equivalent, namely, an acknowledgment of the estate of his immediate lessor, with an averment that it had expired by its own limitation, and that after the commencement of his lease, the title had vested in a purchaser at sheriff’s sale of the fee simple interest of the owner of the land of whom the immediate lessor himself held by a demise for years, in virtue of which he had leased to the defendants. The attempt was by a tenant, under an expired lease, to turn out those who were in possession under his own landlord, or his alienees; a thing which could not be done in an action of ejectment, and ought not to be permitted under the act, for it contained no indication of an intent to enlarge the rights of the landlord by enabling him to do under summary process what he could not do in an action at common law. Every one of these remarks, and the general ground upon which the determination proceeded, are strictly applicable to our case. It is not to be doubted that the affidavit of Smith, if true, presents a defence that would be available for him in an action of ejectment by Elliott; and why should he not be permitted to make it in this proceeding ? He does not offer to impeach the title of his landlord under which he came into possession, nor would this be admissible, since it is prohibited both by motives of public policy and the purview of the act itself. If it be admitted that he does not aver by his affidavit that he came into possession under title derived to him from the defendant in the execution, before the judgment under which the execution and sale took place, he offered to show what is equivalent. Conceding the title of his former landlord and his own possession, as tenant, under it, subsequently to the judgment under which the plaintiff claims, he proposes to prove the destruction of that title under the operation of a paramount judgment; his own purchase of the elder Ackla’s title, and the consequent commencement of an independent possession, as owner, prior to the purchase by the plaintiff of the conditional title thus extinguished by operation of law. The estate owned by the defendant commenced, by relation, “ before the judgment under which the execution and sale to the plaintiff took place,” and though perhaps it was immediately derived from the defendant in the execution, and so was, literally, within the terms of the act, yet, comprising the source from whence the younger Ackla drew Ms estate, it may, to satisfy the terms of the act of 1836, be said to comprehend that estate. It is very certain that under the doctrine of Newell v. Gibbs, the defence offered would be available if this were a proceeding by Ackla, as landlord, under the landlord and tenant act, for it is precisely parallel to the grounds of resistance offered by the defendants in this case. Why should it not be efficacious against the complainant, who can claim but to stand in the shoes of Ackla, the defendant in the execution, under which he purchased ? There is, as we have seen, nothing in the spirit of the statute itself which forbids it; and as it would, questionless, be admissible in an action of ejectment, it cannot be said to be in contravention of the general law. It may be asked with great force, why, by a blind and indiscriminating adherence to the very words of the statute, we should permit Elliott to succeed against Smith, in this proceeding, merely to turn the latter round to his action of ejectment for the assertion of a title which appears to be valid ? Hid the defence involve the repudiation of a lessor’s title by his lessee, the policy to which I have adverted, recognised by the act, would exclude it; or did it rest in the adoption of an independent outstanding title in a third person, bearing no relation to or connexion with the title of the defendant in the execution, it would be without the circle drawn by the act. But neither of these propositions is true in respect of it. On the contrary, it expressly admits the lessor’s title, but professes to show its determination by act of law, at the moment of the actual inception of Smith’s title, which is not independent, but inclusive of the title claimed by Elliott under the execution against Acida and the son. It embraces it, and shows the whole interest to be vested in Smith. From this view of the case, we are entirely satisfied with the conclusion attained by the court below, and the reversal of the judgment rendered by the justices. Indeed the general reasoning seems to be acquiesced in by the plaintiff himself, for he limits himself to the suggestion of two particular defects in the affidavit filed by Smith. But the court say the judgment recovered against Benjamin Acida had lost its lien on the land; and we think it sufficiently averred that Amos took possession under his father’s will, and the relation of landlord and tenant between the latter and Smith was dissolved.

Should the plaintiff persist in his proceeding before the two justices, they will of course require the proper recognisance before certifying the record into the Common Pleas.

Judgment of the Court of Common Pleas affirmed.


source: Caselaw Access Project

author: Burnside, J.

license: Public Domain

text:
    Overseers of Milton v. Overseers of Williamsport.
    When a pauper becomes a charge on a township in which she has not a legal settlement, that township is bound to maintain her until she is removed to her place of settlement under an order. And if she is permitted to wander to another township, the overseers thereof may have her removed to the township where she first became chargeable.
    Appeal from the Quarter Sessions of Lycoming.

      July 19. Louisa Finly had acquired a settlement by hiring in Milton. She then married Deems, who had acquired a settlement in Chester county. After her marriage she became somewhat deranged in mind, and was found in Milton requiring assistance. The overseers of Milton wrote to the overseers of •Williamsport, alleging she was chargeable on that township. No answer was received — but the pauper was permitted to wander to Berlin, and thence to Williamsport, where she was found in a destitute condition, and removed under an order to Milton. From this order Milton appealed.

      Anthony, P. J., was of opinion that, as they had failed to prove that Williamsport was properly chargeable, the order of removal was correct.

      Maynard and Armstrong, for appellant.
    Lawson, contrit.

      July 31.
   Burnside, J.

The evidence is satisfactory that Louisa had gained a settlement in Milton, by hiring before her marriage with Andrew Deems, 5 Barr, 283, 284. If the evidence of her husband is believed, he had a settlement in Chester county, which by the marriage became her settlement; as the 10th section of the act of 1835, Dunlop, 632, provides “ that every married woman shall be deemed during coverture, and after her husband’s death, to be settled in the place where he was last settled.” If the overseers had been disposed to regard the law, it could have been easily ascertained whether Deems’s statement was true. But the case was put by the Sessions on other ground. Louisa seems to have been deserted by her husband, and to have been partially deranged. She required relief in Milton, and two justices of the county of Northumberland made an order on the overseers of Milton to that effect. The act of 1836, Dunlop 631, sec. 5, declares: “ It shall be the duty of the overseers of every district to furnish relief to every poor person within the district not having a settlement therein, who shall apply to them for relief, until such person can be removed to the place of his settlement;” and the 4th sec.: “If such poor person, by reason of age, disease, infirmity, or other disability, is unable to work, it shall be the duty of the overseers to provide him with the necessary means of subsistence.” In cases of emergency, relief must of course precede the order of maintenance, and the township would be liable, without an order of maintenance : 12 S. & B. 292, 296. 23d section provides for the poor falling sick: Dunlop, 634.

The township of B. procured an order to remove a dying pauper who had no settlement there, to C. township. He was so ill as to be left on the way, in U. township. The latter township procured an order for his return to B. township. Held that B. township was bound to receive him and maintain him till properly removed as the statute directs: 5 W. & S. 535. The return of the Sessions shows us that the overseers of Milton, instead of proceeding, as the law directs, to have the unfortunate woman removed to her next legal place of settlement, on the 20th day of August, 1845, wrote their first puerile letter to the overseers of Williamsport, informing them thai they had raised an order of relief for Louisa Deems from the justices of the peace of Northumberland county, and requesting to ¿now what the overseers of Williamsport wish done with her. On the 29th August, they again wrote, enclosing a copy of the affidavit of Andrew Deems, Louisa’s husband, and desired the overseers of Williamsport to make provision to have Louisa and her child removed, alleging they can establish a settlement for Louisa in Williamsport, remarking that unless the overseers of Williams-port take charge of them and pay for them, the overseers of Northumberland would be under the necessity of proceeding as the law provides in the case. The overseers of Williamsport took no notice of these letters. We next hear of Louisa on the 18th of November, 1845, in New Berlin. The overseers of that place wrote to the overseers of Williamsport, that a coloured woman, apparently of unsound mind, was wandering in their streets without any means of support, and had become a township charge, so that they had to pay fifty cents a day for her keeping. Shortly after this, Louisa is found wandering in the streets of Williamsport. The day after she appeared there she was removed to Milton by order of two justices, who adjudged Milton as her last place of settlement. From this order Milton appeals — and certainly, that her last place of settlement is in Chester county, Milton was not ignorant of, for they had sent a copy of the husband’s deposition to Williamsport.

When the overseers of Milton received the order of relief from the two justices of Northumberland county, it was their duty to have provided for Louisa until they found, in a legal manner, her last place of settlement. Instead of regarding the act of Assembly, or the dictates of humanity, they permit this unfortunate deranged woman, in an inclement season of the year, (to use the most delicate expression) to wander from the borough of Milton.. They not only neglected their duty as officers, but as men. When they found her last place of settlement, our law, in its wisdom, would have made them full remuneration for any money judiciously expended for the pauper, and for their trouble. But instead of taking proper care of the unfortunate maniac, and providing for her wants, they shuffle her off to the protection of Sim who tempers the wind to the shorn lamb. Overseers of the poor, like all other officers, are not above the law. It is sometimes necessary to teach them their duty. Some years ago, when at the bar, I drew an indictment against the overseers of Union township, Mifflin county, for a misdemeanour in office, in selling the poor by public vendue or outcry, to the lowest bidder. I conducted the trial before Judge Huston, and they were properly convicted and sentenced. The worthy and humane inhabitants of the township were shocked at the barbarity of the proceeding, and took this method of testing its legality. Under any direction, where an order for relief or maintenance is issued, the' township on whom it is made, is bound to support the pauper until they find the place of, his last settlement. From such an order there is no appeal: 2 Yeat. 164; 2 Watts, 434. The overseers who receive such order are bound to obey it. Louisa was legally sent by the two justices to the borough of Milton. It was the duty of that borough to provide for her food and clothing, until they found her last place of legal settlement. The overseers of Milton did not provide for her, and the order of the Sessions only restores her to their care and custody. They ought not to be allowed to take advantage of their illegal conduct. The Sessions only restored her to the place she rightfully belonged: and if the overseers of the poor have lost their remedy on the county of Chester, as their counsel contends (on which I intimate no opinion), it is their own fault, in not doing their duty, and pursuing the course pointed out by the act of the legislature. If the loss should turn out to be a severe one, it will teach each the exercise of humanity and charity, and reverence to law.

Decree of Sessions is affirmed.


author: Bell, J.

text:
    Wallace v. Clingen.
    "Where an attorney for several plaintiffs receives the proceeds of a sheriff’s sale of defendant’s property, evidence is admissible that one of the judgments had subsequently been satisfied by being used as a set-off, to raise an implied assumpsit by the attorney in favour of the defendant, where the attorney, having knowledge of the facts, has not paid over the money.
    In error from the Common Pleas of Union.

      July 21.
    Assumpsit for money had and received, against the executor of Merrill. It appeared on the trial that there were several judgments entered against the present plaintiff, among which was one confessed to Mrs. Dunlop, his mother-in-law. His real estate having been sold by the sheriff, the proceeds were paid to Merrill, who was the attorney on the record for all the plaintiffs in the judgments.
    The plaintiff proved a demand of the money, in answer to which Mr. Merrill said it was safe, but that he wished nothing said about it, for fear Mrs. Dunlop’s executors might want it. The plaintiff further offered to prove that the judgment had been confessed to Mrs. Dunlop without consideration, and for the purpose of securing money to the plaintiff’s family; that the other judgment-creditors had been paid out of the proceeds, and that Mrs. Dunlop never claimed the fund. The evidence was rejected, because there was no proof of an assumption by Merrill.
    Plaintiff then proved he had subsequently recovered a judgment against Mrs. Dunlop, and on the trial of that cause the note, on which the above judgment was confessed, was used as a set-off. It was conceded that Merrill had not paid over the money to Mrs. Dunlop.
    The court was of opinion that Mrs. Dunlop’s estate alone was liable to the plaintiff, and not her attorney, who had received the money for her.

      Miller, for plaintiff in error.

      Slenker, contrü.
   Bell, J.

Regarding Mr. Merrill simply as the attorney of Mrs. Dunlop, the plaintiff in the judgment, in his receipt of the amount of it, the general view taken by the court below of the relative rights and obligations of the parties litigant, is, in the main, correct. But it is shown the sheriff paid over to him the whole proceeds of the sale of Wallace’s land, after deducting costs, and though his name is of record as attorney of Mrs. Dunlop and the other judgment-creditors, there is certainly proof, from the mouth of Mrs. Hayes, that Mr. Merrill probably knew of the asserted arrangement between Wallace and his mother-in-law, and viewed himself rather as the agent of the former than of the latter, when receiving the money. At all events, there is evidence for a jury, that he took and held it for whoever was the true owner; and if so, the present action may be maintained under the rule, that when one has money that ex equo et lono belongs to another, assumpsit will lie for its recovery upon an implied promise. I concede that Mrs. Dunlop’s execution is prima facie entitled to the fund, and if her judgment still remain unsatisfied, and was recovered to her own use, her right is conclusively established, at least for the purposes of this action, for the validity of the judgment cannot be impeached collaterally. But if it be extinguished by satisfaction, directly or indirectly, the defendant is liable to answer to the plaintiff, if, as I have said, the receipt by Merrill was general and not special as the attorney of Dunlop. Had Wallace or his representative paid the judgment-debt to the plaintiff in her lifetime or to her executor since, with notice to Mr. Merrill, none would doubt this liability. And the effect is the same if her executor has recovered the amount as a set-off. The owners of the judgment cannot have a double satisfaction, and if they have chosen to recur to the original cause of action by way of defalcation, they are estopped from claiming any portion of the proceeds of the land sold. It is, in principle, as if the judgment had been reversed, and Clark v. Pinny, 6 Conn. 299, proves that in such case the action might be sustained. Under the circumstances to which I have adverted, Merrill’s position was not at all like that of the attorney in Boulen v. Hebel, 17 S. & R. 314, who was held to be 'unaffected by the agreement between his client and the antagonist party, to which he was not privy, and in which he was not bound. Nor is it similar to that of the attorneys and clerk, in Stephens v. Badcock, 3 Barn. & Adol. 354, who had raised a sum of money for his principal, and against whom it was declared an action by the owner of the fund would not lie for want of privity. Here the simple case is presented, of money received by an attorney, applicable in payment of a judgment, but which-it is averred was discharged by other means, while the fund was in transitu, and before it reached the hand of the owners of the judgment. Of this there is proof from the record of the action, instituted by Wallace, against Dunlop’s executors, and by Mr. Lynn, who also shows that Mr. Merrill was cognisant of the use made of the note which had before furnished the foundation of the judgment entered against Wallace. Should the jury believe the judgment was thus satisfied, they would probably be content with slight proof of the general receipt of the fund by Merrill, in order to get over the technical difficulty interposed by the defendants. We are therefore of opinion that the court erred in not giving sufficient weight and prominence to the facts sworn to by Hayes and Lynn, and to the legal results that flow from them. These facts ought to have been referred to the jury, with instructions that if they found Mr. Merrill received the money generally,' and that the judgment was satisfied, the plaintiff is entitled to recover. Nor can the defendant with propriety complain of this, as placing the estate of a mere stakeholder between two fires, and exposing it to be attacked by the executor of Dunlop’s estate, irrespective of any recovery that may'be had here. Supposing Mr. Merrill to have been a mere stakeholder, the case presents one of those instahces in which, by our practice, the courts will compel the real party interested in or claiming the fund, to appear to the action, and take defence by way of interpleader, or be for ever barred: Coates v. Roberts, 4 R. 100. And this appears to me to be the proper course to be pursued by the defendant. He does not claim the money, as belonging, in any event that can be imagined, to the estate of his testator. It is conceded on all hands to be the property of Wallace’s administratrix, or Dunlop’s executor. The question is, therefore, in reality between these two estates. Upon a proper representation, doubtless, the Common Pleas should grant a rule on the latter to come in and defend, if he still claims title to the fund, under pain of future silence. Should this method be adopted, there will no longer be any objection to the testimony offered by the plaintiff, and rejected by the court, not for the purpose of impeaching the judgment of Dunlop, but to show that she was but a trustee of the money, when recovered, for the benefit of Wallace and his family. Indeed, I cannot perceive any sufficient exception to this evidence, though Dun-lop’s executors should not be brought in, if the important relation of Mr. Merrill to that estate, as attorney in this transaction, be put aside of the proofs. His executor can then defend only as a disinterested holder of the fund, by setting up the claim of Mrs. Dunlop, by virtue of her judgment. By doing so, he necessarily places himself in the position occupied by her estate, in reference to this controversy, and consequently her declarations and those of her personal representatives since her death are competent, not to destroy her judgment, but to show the uses it was intended to subserve. The propriety of this is at once made obvious by the consideration, that if Wallace’s administratrix fails to recover, her executor takes the money. The latter is therefore the real party against whose pretensions their acts and declarations may be given in evidence, though not named of record, upon the principle which admits similar evidence emanating from the transferee of a chose in action, in suit, whom the law recognises as the real plaintiff, though not so named in the suit. The fact that Mr. Morrill’s estate may be made liable to costs, will not exclude the operation of the principle, for that is incident to the position he chose voluntarily to assume.

It will be perceived, from what has been said, that the plaintiff in the action may recover, though he fail to prove the Dunlop judgment is satisfied, provided the technical obstacle to which I have adverted be removed, and the jury be- satisfied that the allegation of a trust in the judgment is sustained.

Judgment reversed, and a venire de novo awarded.


text:
    Green v. Hallowell.
    Where the rules of court require two consecutive rules to plead to be taken to entitle the plaintiff to enter judgment by default, the plaintiff cannot take judgment by default on one rule.
    After appeal from an award, a judgment in default of a plea may be entered for the amount found by the award, without a writ of inquiry, &e.
    In error from the Common Pleas of Union.

      July 21. Assumpsit against three. Award filed, finding a sum due by two. One of the defendants appealed. The judgment was entered against him under the circumstances stated in the opinion of this court.
    Miller, for plaintiff in error.

      Woods, contra.

      July 31.
   Burnside, J.

The first error assigned is, to the court entering judgment against Robert B. Green, for want of a plea. It is true that in assumpsit against several, if some are served with process and appear and plead to issue, and some who are served malie default, the plaintiff takes judgment by default against the latter: Ridgely v. Dobson, 3 W. & S. 118. But in such case the judgment must be taken in accordance with the rules of court. Here a rule was obtained at September Term, 1846, to plead. On the 26th December, 1846, on motion judgment against Robert B. Green for the sum of $131.25, for want of a plea. The rule of court is, that a rule to make defence or plea at least twenty days before the next preceding term is of course, and on failure of the defendant so doing, the plaintiff may, in like manner, within twenty days, enter a second rule to make defence, or plead,” &c. The plaintiff had no right to have a judgment until after his general rule.

The second error assigned is, to the court entering judgment against R. B. Green for $131.25, on motion, without the aid of a jury to assess the damages, it being an action of assumpsit.

In this case there had been a rule of defence under the compulsory arbitration act, and an award for plaintiff for $ 131.25. Tbe judgment was only entered for the amount of the award. In such a case we all think there was no error. When a cause is referred and the award appealed from, and the defendant declines to plead, a judgment may be taken, in accordance with the rules of court, by default, for the amount of the award, without a writ of inquiry of damages. ’ '

The judgment is reversed, and procedendo awarded.


author: Rogers, J.

text:
    Aurand v. Wilt.
    Where one having given instructions for a will becomes incapable of understanding it before the draft is prepared and submitted to him, and so continues until his death, the draft, though proved by two witnesses to correspond with the instructions, cannot be admitted to probate.
    The mere fact that one had been in possession as tenant is not a bar to the proof of a parol sale and gift to him, where he ceased to pay rent, continued to hold the land under his contract, paid part of the purchase-money, made valuable improvements, and had the property assessed in his own name.
    Evidence of improvements made by a donee under a parol gift, after a controversy commenced as to the fact of the gift, is inadmissible.
    In error from the Common Pleas of Union.

      July 22. This was ejectment on a feigned issue to try the right of Elizabeth Beckley to one-third of The lands of Michael Peters, deceased, who left three heirs, of whom Elizabeth was one.
    The main question was whether Peters died intestate. It appeared that Peters had sustained an injury by falling from his horse, and requested a will to be written for him, not being satisfied with one then in his possession. He gave the necessary directions for this purpose, and at the time was proved to be sensible and competent.to make a will. The scrivener having received the instructions, withdrew to another room, and there prepared a will in accordance with the instructions he had received. But when he returned with the paper, Michael had sunk into a state of incapacity to understand the instrument. From this he never recovered, and died without having signed the paper, or having requested another to sign for him. These facts were proved by two witnesses.
    On this point his honour, Wilson, P. J., instructed the jury that as it plainly appeared that Peters was competent to make a will at the time he gave the directions, the only question was whether he was prevented by the extremity of his last sickness from signing or requesting some one else to sign for him, and they were to decide whether he was thus reduced while the will was being prepared, and so continued until his death.
    The defendant also claimed a tract of about 145 acres, 100 acres under a parol gift from his father-in-law, Michael Peters, and the residue under a parol sale. The fact of the sale' and gift, and their terms, were found by the jury; the material objections appeared to be, .1. That the defendant had been in possession as a tenant before the sale and gift were made. In answer to that, he proved, that he had ceased to pay rent, and the land was assessed to. him many years before the death of Peters. On this point the court instructed the jury, that if the possession was continued under the contract, and. permanent improvements were made pursuant to the alleged gift, and part of the price paid, the mere fact of a previous possession would not debar the defendant from claiming specific performance. 2. There was no line marking the division between the tract sold and that given. The court was of opinion that if there was a gift of 100 acres, and a parol sale of the residue of the tract proved, the want of a division-line was not fatal. 3. The court admitted evidence of improvements made by defendant after the death of Peters and- the commencement of this controversy.
    The jury found for the defendant.

      Miller and Slenker, for plaintiff in error,
    on the validity of the will, cited, Act 1833, sec. 6; 6 W. & S. 184; 10 W. 153; 5 Whart. 386; 8 W. 21; 2 W. & S. 450; 5 Barr, 33. On the validity of the gift: 3 Penn. Hep. 332,. 64 in n.; 3 W. 253; 1 Barr, 374; 2 Whart. 387 ; 6 W. 396; 6 Ib. 464. As to the alleged sale: 1 W. 392; 4 Ib. 305; 9 Ib. 85, 106; 1 W. & S. 383; 10 W. 204; 4 W. & S. 228; 1 Ib. 554; 6 Whart: 153; 3 Barr, 545; 6 W. 396.

      Jordan and Gasey, contrá:—
    1st. As to the will (the court intimated that the only question was, whether, to constitute a valid will, the testator must not be in such a situation, when the will is written, as to understand it if read or explained to him): To give the affirmative to this pro-, position, would appear to exclude entirely the contingency contemplated by the exception in the 6th section of the act of 8th April, 1833. If he were in such a situation that he could understand it, he could also either sign it or direct it to be signed; and . therefore no will, giving that construction to the act of Assembly, could in any case be good if not signed. Besides, this is a new provision, and is in accordance with the doctrine previously held in Walmsley v. Reed, 1 Yeat. 87; Rossiter v. Simmons, 6 S. & R. 452, and Harrison v. Rowan, 3 W. C. C. Rep. 580. And it is evident that the legislature intended, by the exception in .this section, to give permanency and validity to the rule, by making it the subject of an exception to the general rule: Stricker v. Groves, 5 Whart. 397.
    2d. As to the gift: The judge who ruled the cause below, put everything to the jury in a very strong light against us. The fact that he was in as a tenant at the time of the gift, does not disprove that; he took possession in pursuance of his contract, as he ceased to occupy as tenant; ceased to pay rent; had it assessed in his own name, and made all the improvements with the knowledge of Mr. Peters, who encouraged him to proceed, and promised to make him a deed: Syler v. Eckhart, 1 Binn. 378; Young v. Gl'endening, 6 Watts, 509.
    In the case of Eckhart v. Eckhart, the improvements were all made before the gift, and not in pursuance of, and on the faith of it.
    The case of McClure v. McClure was not a present gift, but an agreement to give by will. This was a present gift, and the improve* ments were made on the faith of it.
    3d. As to the admission of the evidence of improvements, they cited 8 W. & S. 60.

      Aug. 2.
   Rogers, J.

The 6th see. of the act of the 8th April, 1833, enacts that every will shall be in writing, and unless the person making the same shall be prevented by the extremity of his sickness, shall be signed by him at the end thereof, or by some person in his presence, and by his express direction, and in all cases shall be proyed by the oaths or affirmations of two or more competent witnesses.

To constitute a valid will, it must be ordinarily proved to be the alleged will in writing, and signed by the testator. In the latter particular, it is admitted this will is deficient, as the name of the testator is not signed to the paper purporting to be his will. In order to perfect the instrument for probate, it must be proved that he was prevented from signing it himself, or by some person in his presence, and by his direction, by the extremity of his last sickness. Under the circumstances disclosed by the evidence, it becomes an important question in the cause, whether the instrument purporting to be a will, was reduced to writing within the true intent and meaning of the act. It seems not to admit of dispute that at the time the testator gave directions, as to the manner he designed to dispose of his estate, he was fully competent to make a will, and had the will been reduced to writing in his presence, it would, in all probability, have been a good and valid testament. But the proof was, as is conceded by the counsel, that when the testator dictated the will, in the presence of the witnesses, it was not reduced to writing, nor was there any note taken of it at the time as it fell from his lips, but the scrivener adjourned to another room, and there put it in writing, correctly, as he supposed, and according to the best of his recollection, and that when they returned to the sick chamber of the testator, he was incapable, from mental imbecility, of signing the will, or giving any direction in regard to it. This is the import of the testimony on which the defendant relies. Strogel says that he was the scrivener, and commenced in the morning between eight and nine o’clock, and by the time it was finished, he supposes it was about two o’clock. The old man was very weak at the time the will was made. The exertion of communicating the things that he did, seemed to exhaust all his strength. His mind became wavering, he supposes for the last hour before they presented the will to him for signing; they had not spoken to him; in this time they had gone out of the room to take dinner.

When Mr. Madder had presented the will for signing, the witness asked him whether he would sign it, and'he turned towards the witness, with a wild look, as if aroused out of a sleep. He seemed to be quite bewildered, and to have no knowledge of what they wanted with him. He was by no means capable of signing the will knowingly. Madder, the other witness, says, he did not think, from the situation he appeared to be in when they presented the will, that if he would have to go through what would make him sensible of the will, that he would have been able to sign it. He again says, he did not think he was capable of signing it understandingly, or of directing any person to sign it; at least he was not so when it was written.

It does not distinctly appear when the uncertainty, of which the witnesses speak, commenced, and that is a fact to wdiich the attention of the jury must be directed. For if a change took place in his intellect before the will was completed and ready for his signature, so as to render him incompetent fully to understand the nature and purport of the instrument, it is not such a testament as is entitled to probate. If a person dies while the instrument is in a course of preparation, and before its completion, it cannot assume the character of a will. This will not be denied, and what difference can it make, whether he dies, or becomes so debilitated in mind as not to be able to comprehend the nature of the instrument he is required to execute ? It must be complete in every respect, save signing, while his mind is in such a state as to enable him to understand whether his directions have been comprehended and faithfully reduced to writing. And this stringent rule is indispensable to prevent fraud, as there would be no check on crafty, designing, and unscrupulous men, if they were permitted to add to the contents of the will, after the mind of the testator was prostrated by disease. It is also necessary to guard against mistake, to which the most accurate are liable in taking down, and reducing to writing,.the thoughts and dictations of others, particularly when the difficulty increases by the physical debility of a person in the last stage of disease. It is infinitely better, especially when, as in this country, the law makes an equal and just distribution of the estate, that a person should die intestate, than that we should run the risk of fraud and mistake, which will be the inevitable consequence of a loose construction of the act. It would introduce the very evils which the statute intended to prevent. The court was mistaken in stating to the jury, that inasmuch as it was not questioned that the testator was fully competent to dispose of his estate at the time he gave directions for that purpose, the only question presented for the consideration of the jury in relation to the will, was whether he was prevented by the extremity of his last sickness from signing his name knowingly to the will, or of directing some person to sign his name to it for him after it was prepared for his signature. We submit there was another and an important question to be first disposed of, viz: Whether the testator at the time the instrument was completed and ready for signing, was incapable from mental imbecility of understanding the nature and purport of the instrument he was requested to execute. An opportunity must be given to have the will read and explained to him, which cannot be, if, before 'it is completed and ready for signing, he becomes incapable of understanding and comprehending the contents. If at the time, or before it is completed, he either dies, or ceases' to be able to act understandingly, it cannot be admitted to probate. It is only after the will is perfect in every respect except signing, that the saving in the act can have any operation. If it is proved that after that time, he is prevented from signing by the extremity of his last sickness, or of requesting some person to sign for him, it is to be considered his will, notwithstanding this defect; cases such as are contemplated in the exceptions may, but will not often occur. It is not to be understood that the testator 'is required to sign eo instanti the will is prepared for signature. A reasonable time will be allowed, and it may be in that interval the testator may cease to. have the necessary ability to sign himself, or to direct some person to do it for him. The exertion of mind required to understand the instrument as prepared, in the attempt to sign it, may prostrate the testator in such a way, as to leave the case within the saving of the statute. In such cases, and there are some, it may be admitted to probate without the signing required by the act.

But to bring the case within the exceptions of the statute, strict and stringent proof ought to be required; unquestionably, none was given in this case, for if the evidence is believed, there were intervals when the testator was able, at least, to give directions to others to sign the instrument.

We see no error in the charge, or the answer to the points in relation to the gift of 100 acres, or the alleged sale of 45 acres. The instructions are correct, and the facts are properly left to the jury. Neither is there any error in the admission or rejection of evidence, except in permitting the defendant to give evidence of improvements on the property in dispute, after the controversy commenced. This was clearly erroneous, as there is no principle better than that an owner cannot be improved out of his estate. Improvements give no.equity, and evidence of them is improper, because it only serves to create prejudices in the minds of the jurors. It cannot alter the principle, that the materials were purchased before the dispute began.

Judgment reversed, and a venire de novo awarded.


author: Gibson, C. J.

text:
    Cowden v. Pleasants.
    An assignee in bankruptcy is not an assignee within the act of 1847, which, declares, that attachment-executions levied prior to the act of 1844, and not served on the original defendant, shall not he valid against a bond fide assignee without notice of the attachment; and the act of 1844 cured the defect from want of service on the defendant.
    In error from the Common Pleas of Union.

      July 24-5. Case stated. An attachment-execution on a judgment against Cowden issued on the 19th November, and was served on the garnishees prior to the 2d of December, 1842. Cowden was not served, not living within the county. On the 13th December, 1842, Cowden petitioned to be declared a bankrupt. On the 23d January he was so decreed, and an assignee appointed.
    Whether the assignee or the attaching creditor was entitled to the fund, was the question argued. The court gave judgment for the latter.

      Miller and Maynard, for plaintiff in error.
    Until the" act of 1844, the attachment did not bind the fund, because the defendant was not served as is required by the act of 1836. The act of 1844 could not divest the rights of the assignee which had attached, and this construction is aided by the act of 1847, for there can be no doubt that an assignee in bankruptcy is a bond fide assignee.

      Pleasants and Bellas, contó.

      Aug. 3.
   Gibson, C. J.

The supplemental statute of 1847, which, in certain cases, restored the 36th section of the act relating to executions, which directed the attachment in execution to be served on the defendant as well as on the garnishee, was enacted to protect the garnishee when he had handed over the effects to the original owner of them; and also to protect the assignee of such owner having become a meritorious purchaser of them. But the legislature never intended to restore the original provision for the benefit of the defendant in the execution, or any one standing precisely in his place. As to either of them, it was left to stand repealed by the act of 1844. What peculiar equity, or separate interest, then, has an assignee in bankruptcy ? He is the representative of the creditors and the exponent of their rights; and he is clothed with their equities and vested with their title: but no more. Claiming under their common debtor and deriving title to his effects by legal transmission from him to their agent, the creditors themselves stand as he himself stood. The question is not what benefit was he to receive from his discharge, but what did they give for the cession of his effects. They gave up all recourse to his person or future earnings; but it was held in Twelves v. Williams, 3 Whart. 485, for reasons which hare not been questioned, that this is not a consideration to make an assignee in voluntary insolvency, a purchaser, and an assignee in bankruptcy stands essentially on the same ground. Under the English statutes he notoriously succeeds to no more than the estate and effects of the bankrupt, bnrthened with their former equities and encumbrances. The language of our own act shows it to be inapplicable to the present case. It was extended no further than to cases in which “bona ride assignments had been made to third persons without notice of the original attachment;” which shows that the legislature had in view those eases in which there might be mala fides, which is not predicable of a cession in bankruptcy. They consequently intended to provide for those who had become assignees in one of the ordinary ways of transfer, and for no others.

The assignee, however, contends that the attachment, being void when it was laid, could not be set up by the act of 1844 against the intervening assignment in bankruptcy, which, it is said, vested the title irrevocably. Had it indeed been void, that consequence would have been inevitable; but that the proceeding was merely erroneous and not irregular, is demonstrated by the fact, that the slip might have been retrieved by the execution-debtor’s voluntary appearance. Being a provision for the benefit of his assignee, either might waive it. But had it been void, an appearance would not have restored it, for it could not reanimate the dead. The constitutional power of the legislature to enact the statute of 1844, which touched no vested title, is not to be doubted; and the plaintiff’s attachment is clearly entitled to the debt in the hands of Mr. Merrill’s representatives.

Judgment affirmed.


text:
    Tomb’s Appeal.
    Where a feigned issue is directed between two judgment-creditors to determine whether one is fraudulent, creditors not parties on the record cannot take advantage of the verdict.
    Where the first judgment-creditor succeeds on a feigned issue, directed with the second to determine the validity of his judgment; but on the trial of an issue directed with the third judgment-creditor, the first is found to be fraudulent: he is, nevertheless, entitled to so much of the proceeds of a sheriff’s sale as between the second and third judgment-creditor would have gone to the second, for his judgment being valid against the second, he is entitled to use the priority of the second over subsequent judgment-creditors.
    Appeal from the Orphans’ Court of Lycoming.

      July 25. The questions in this case arose on the distribution of the proceeds of a sheriff’s sale of the real estate of J. A. Shultze. The material facts were as follows: — There were several judgments against J. A. Shultze, among which were three in the following order of priority: A. E. Shultze, Campbell and Tomb, and Lawshe. A feigned issue was directed by the court between Borrows et al. and A. E. Shultze, to try whether Shultze’s judgment was fraudulent as to creditors. To this issue Campbell and Tomb were parties, and the verdict was for Shultze. Another issue was directed on the same question between Lawshe and Shultze, and the verdict in this case was for Lawshe.
    On the hearing of the application for distribution, the counsel of Borrows, Tomb, and Campbell, offered to - show that they were privies to the feigned issue between Lawshe and Shultze, and that they had assisted at the trial, called witnesses, and paid part of the expenses of the proceeding; but the evidence was rejected.
    Anthony, P. J. — “According to the evidence exhibited to the court, it appears that there remains for distribution the sum of $7,957.72, being the amount which was claimed by Augustus E. Shultze on his judgment, No. 312, April Term, 1844, and which was directed to remain with the prothonotary till further ordered by the court, as appears by the decree of distribution, February 15, 1845.
    “ By a decision of the Supreme Court, which will be found in 1 Barr, 251, that court decided that there was error in the distribution of the moneys in court arising from the sale of the real estate of John A. Shultze, because in making that distribution the court below decided that the verdict and judgment, in the feigned issue directed by the court to try the validity of the judgment of Augustus E. Shultze v. John A. Shultze, was conclusive to postpone said judgment as to other judgment-creditors, and to prevent it from receiving any part of the money in court for distribution.
    “ The judgment given by the Supreme Court we are bound to carry out in good faith, though we may not exactly understand how a judgment may be fraudulent against one judgment-creditor under the statute of Elizabeth, ch. 13, sec. 5, and yet be honest against other judgment-creditors. In the decision of the Supreme Court it is said that ‘ one person may acquiesce in a transaction known by him to be honest, while another may nevertheless avoid it,’ on the ground of fraud. Thus virtually declaring that so far as A. Lawshe’s subsequent judgment is concerned, the judgment of Augustus E. Shultze is clearly and utterly void, frustrate, and of none effect, but with regard to other subsequent judgment-creditors, it is a fair, just, and honest transaction.

      “ Although the Supreme Court have denounced the proceedings of some of the inferior courts, ‘ in throwing promiscuously before the jury complicated claims to priority, as discreditable to the court which allows it, as to the counsel who resort to itand although we are willing to suffer all legitimate chastisement for our errors 'of omission and commission, yet we submit, with respectful deference, whether we ought to be implicated in discreditable proceedings’ that took place in another Court of Common Pleas: 1 Barr, 254.
    “ The first question raised in the present distribution is, whether the whole amount of the fund in court shall be distributed; and, on that question, we are of opinion that a sufficient sum- ought to be retained in court to satisfy the judgment of the Jersey Shore and Lewisburg Bridge Company, feigned issue, No. 365, September Term, 1845; original, No. 336, April Term, 1844. Also, the judgment of George Reidenour, No. 383, April Term, 1844; original and feigned issue, No. 366, September Term, 1845. Previous to the act of Assembly of March 26, 1846, these two causes (inter alia) were removed to Union county for trial, to determine whether the judgment in favour of Augustus E. Shultze was fraudulent, &c.; and as they are still pending and undetermined before that court, we refuse to distribute so much of the money as is claimed by those two judgments against John A. Shultze. As to the residue, amounting to $5,572.98, we see no objection to its distribution, as the issue between Samuel T. Borrows, George Tomb, E. C. Campbell, George Tomb, assignee of John'Stoffer, J. & A. Graffius, Wilson & McOlintock, James Taggart, Lewis Dewart, Hickman & Brothers, and William Cameron, plaintiffs, and Augustus E. Shultze, defendant, has been tried, and a final judgment been rendered thereon in favour of the defendant. And as the issue has been tried between Abraham Lawshe and Augustus E. Shultze, and a verdict and judgment has been rendered for the plaintiff, the only question, therefore, is, to whom the $5,572.98 is to be adjudged by the decree of the court.
    “ It is contended by the counsel of A. E. Shultze, that although the judgment in his favour was fraudulent and void between him and A. Lawshe; yet, as it was adjudged to be valid between him and Samuel T. Borrows and others — some of whose judgments are prior in date to Lawshe’s judgment — the consequence is, that the judgment in favour of A. Lawshe is not entitled to a preference over those prior judgments, in the distribution of the money in court.
    “To this view of the case we cannot assent; and in making distribution, we cannot better illustrate our ideas than by considering the controversy among the different claimants in the nature of a personal conflict, wherein A. Lawslie has been victor over A. E. Shultze, and he in turn has vanquished S. T. Borrows, Greorge Tomb, E. C. Campbell, and others.
    ‘ In the case of Wilcox v. Wain, 10 S. & B. 380, a controversy arose among the creditors. A judgment-creditor stands No. 1, a mortgage No. 2, and the United States No. 3. By our state laws, the judgment-creditor had the preference over all subsequent lion-creditors ; but the act of Congress defeated his preference, because, when the defendant made a general assignment of his property, it had not been seized and taken in execution on that judgment. Between the judgment-creditor and the United States, the latter was entitled to the preference; but the mortgage steps in to the aid of the judgment-creditor, and says to the United States, ‘ true it is, without my assistance you would defeat his claims; I, however, have a right to the money prior to yours, because the property sold by the sheriff was mortgaged to me to secure a bond fide debt, before the general assignment. You, therefore, must stand back; you are defeated out of the field, and must let the other combatants fight it out under our own laws.’ Thus the judgment-creditor retained his position, and was entitled to the money in court.
    “ So in the case of the Manufacturers’ & Mechanics’ Bank v. The Bank of Pennsylvania, 7 W. & S. 335, the Supreme Court decided, that although the lien of the Manufacturers’ & Mechanics’ Bank was not good as to subsequent creditors; but as the Bank of Pennsylvania’s mortgage was an intermediate lien between the Manufacturers’ & Mechanics’ Bank’s mortgage and those creditors, and would be entitled to the money, if the lien of the Manufacturers’ & Mechanics’ Bank were out of the way; yet, as the Bank of Pennsylvania had notice of the first mortgage, that mortgage retained its place, and the lien of the Bank of Pennsylvania became the ‘second piece on the board,’ on the ground that, although against the succeeding liens the claim of the Manufacturers’ & Mechanics’ Bank was bad, yet it was good against the Bank of Pennsylvania, which had actual notice, and whose lien was good against all the rest.
    “ In the present case before the controversy, A. E. Shultze stood No. 1, Tomb and Campbell No. 2, Lawshe and others, No. 3, There was only a sufficient amount of money to satisfy No. 1, and consequently it must have been awarded, in toto, to A. E. Shultze. But No. 2 attempted to defeat No. 1, and put him behind them. In this, however, they failed, and he retained the first rank, keeping them in his rear. A. Lawshe, one of No. 3, made a similar attempt and vanquished No. 1, and by the judgment of the court the claim of A. E. Shultze was postponed to that of Lawshe as fraudulent and void. This verdict and judgment in favour of Lawshe gave him no more than a single point, and did not benefit or prejudice A. E. Shultze or the other judgment-creditors, beyond that point. The Supreme Court says, in 1 Barr, ‘ that Lawshe had no right to contest the judgment in favour of A. E. Shultze, for those who had not challenged it, for if he could not bind them ’ by his proceeding, he could not benefit them by it.’ If such were not the case, the whole ground would have been lost (instead of a single point) without the other creditors having a hand in it. What position then must Lawshe occupy in the distribution ? If he still retains his place among the creditors No. 3, then his victory will be a barren one indeed. He has endeavoured to place himself .in front of No. 1, by defeating him, but he is behind No. 2, and prevented from reaping the fruits of his victory over No. 1.
    “ The counsel for A. E. Shultze says, that he has attained no advantage for himself by postponing No. 1, for the Tomb and Campbell judgments, No. 2, still stand before him, and are good and valid liens,. ‘prior in tempore potior in jure’ than his, and in a contest between them would be entitled to the money, though, as A. E. Shultze has defeated No. 2, he must'still retain his position as No. 1, notwithstanding the judgment of No. 3 against him, and consequently take all the money, as he would have done, if no such judgment had been rendered in favour of Lawshe.
    “We, however, take a different view of the relative position of the parties. By the decision against No. 2, they are no longer in the field: so far as they are concerned, ‘they cannot take the money in court, it is nothing, to them into whose hands it goes:’ 10 S. & B. 380. In the contest between Borrows, Tomb, Campbell, &c., and Augustus E. Shultze, the former have been defeated; the fund in court Shultze has a better right to than they. It is insufficient to reach them, and they are not to be paid. The other combatants than A. E. Shultze and Lawshe ‘ must be left to fight it out between them, there is no doubt.’ Lawshe has obtained the victory, and is entitled to be first paid out of the money in court. He takes off so much of the amount that would otherwise be coming to A. E. Shultze, and the residue is to be paid to Shultze’s judgment.

      The court accordingly decree that of the money in court there be paid to A.. Lawshe, ..... $576.37
    To A. E. Shultze, . . . . • . . 4,996.61
    $5,572.98
    and that the residue, amounting to $2,384.74, be retained in court till final judgment be rendered in the cases of the Jersey Shore and Lewisburg Bridge Company v. A. E. Shultze, and George Reidenour v. A. E. Shultze, now pending in Union county.”

      Scales and Miller, for appellants,
    cited 5 Barr, 37; 3 J. C. R. 553; 13 Ves. 399: 3 Dess. 207; 7 W. & S. 267; 4 Rawle, 273.

      Armstrong and Maynard, contrá,
    5 Barr, 242; 7 W. & S. 343.

      July 31.
   Gibson, C. J.

This is an attempt to get round a principle established when the cause was here before, and enforced below; which it is our duty to repress. Persons whose names are not .mentioned in the record of the feigned issue between Lawshe and Shultze, or in the application for it, or in the order awarding it, claim to have been substantive parties to it, by reason of their activity on the successful side at the trial of it; which was proposed to be proved by parol evidence. Our jurisprudence would come to a sorry pass indeed, did we receive such proof to patch up a record; and in favour, too, of those who had subsequently become formal parties to another issue to try the same fact and. had been defeated. A court will undoubtedly look beyond the record for a beneficial party to fix him with costs, or to exclude him as a witness, or even to bind him by a judgment in ejectment; but I know not how he can be brought into view for any other purpose, or be allowed to gain an advantage from a verdict against another who was a legal, as well as an actual party. Had these persons been parties to the first issue; the verdict would have concluded them in any subsequent one. "We are bound to frustrate every attempt to elude a decision of this court, however unpalatable to those who are bound by it. “ The judgment given by the Supreme Court,” said the judge who ruled the cause below, “we are bound to carry out in good faith, though we may not exactly understand how a judgment may be fraudulent against one judgment-creditor under the stat. 13 Eliz. c. 5, and yet be honest against other judgment-creditors.” Yet it seems not very difficult to comprehend how such a result may be produced where different parties separately contest the same fact in several actions in which different juries may differently estimate the weight of the evidence. It may be difficult to understand how a will may be a forgery as to one devisee, and good as to another; yet in an ejectment by a devisee against the heir-at-law, the will may be proved to be a forgery, to the satisfaction of the jury, while another devisee may recover on it as a valid instrument: or one tenant in common may fail against a disseisor, while his co-tenant may succeed on the same title. Several examples of the sort may be seen in Buller’s Nisi Prius, p. 244. I mean not however to argue the point, but to indicate that a court which submitted to our decision with such undisguised reluctance, would not be apt to carry the principle of it too far; and we accordingly find that the appellants have no case. There is however manifest error in the decree, but only such as would operate to the prejudice of the appellee, in the misapplication of another judgment of this court pronounced in the ease of the Manufacturers’ and Mechanics’ Bank v. The Bank of Pennsylvania, and founded on Wilcocks v. Waln, 10 S. & R. 380. The principle of those cases is, that the last of three, or more, liens in the order of their succession, being superior to the first, but inferior to the second, gains no practical advantage from its priority, because it could not be preferred to the first without being preferred also to the second, to which it is subsequent. Is it not applicable in all its force to the case before us ? In the order of date, the judgment of Shultze stands first: the judgments of Tomb and Campbell, second; and the judgment of Lawshe, third. On the trial of a feigned issue, at the instance of Lawshe, the judgment of Shultze was found to be collusive and fraudulent; and, on the trial of another such, at the instance of Tomb and Campbell, it was found to be fair and valid. On this state of the case, the court preferred the judgment of Lawshe, both to the judgment of Shultze and the judgments of Tomb and Campbell; on the principle that, as the latter had attempted, but failed, to prove the judgment of Shultze fraudulent, their own judgments were driven entirely out of the field; and that, as they could not take any part of the money, it was nothing to them into whose hands it might go. In this lies the fallacy. The court seems to have considered the trial of the issue at the instance of Tomb, Campbell, and the other creditors who were parties to it, as a death-struggle in which their judgments were pitted against that of Shultze; and that both could not survive. But so far were the judgments of the complaining creditors from being staked against the judgment of Shultze on the event of the issue, they were not even involved in it. They continued to stand as they would have stood had there been no issue at all, and were just as much entitled to the residue. Yet notwithstanding this, the judgment of Lawshe was moved up to the head of the list, and paid in full out of the amount of Shultze’s judgment, leaving the residue of its claim to be paid to it, and retaining the rest of the fund in court, not for Tomb and Campbell, who alone could be reached by it, but to await the event of issues at the instance of creditors still junior. Thus was the obstacle of intervening judgments put out of the way by treating Tomb and Campbell as judgment-creditors, without part or lot in the matter, whose liens had been annihilated; and by consequently bringing the judgments of Lawshe and Shultze into immediate collision and conflict, though the judgments of Tomb and Campbell were to be next served. Had not that been done, the result could have been obtained only by subrogating the judgment of Lawshe to that of Shultze — a species of subrogation, not only unique, but utterly subversive of the principle of Wilcox v. Waln, and The Manufacturers’ and Mechanics’ Bank v. The Bank of Pennsylvania. In every aspect, the rule of distribution adopted by the court would do injustice, and the only obstacle to the correction of it is that the injured parties are not the appellants. In an ordinary case, we would not interfere for those who had not thought proper to appeal to us; nor do we now interfere for the sake of Shultze, Tomb, and Campbell. We interfere for the vindication and enforcement of the judgments of this court wherever it is necessary to carry a principle established by them into full effect; and we conceive that it is necessary to do so now. We therefore order and direct that A. E. Shultze have leave to take the amount of his judgment out of court; and that the residue of the fund be applied to the judgments of Tomb and Campbell, without waiting for the trial of the pending issues, as the judgment-creditors to whom they pertain can take nothing in any event. Whether the order awarding them shall be vacated as unnecessary, must depend on the discretion of the court.

So decreed.


text:
    Road in Middle Creek and Union Townships.
    The order to open a road cannot be made -until the term succeeding that at which the width of the road is determined by the court.
    It is not essential, under the act of 1845, that the fact that the viewers gave notice, by advertisement, of the time and place of their assembling to view a road, should appear on their report. It may be proved per testes ; and so, as to the fact that three of the viewers were present.
    Certiorari to the Quarter Sessions of Union.

      July 26.
    The facts sufficiently appear in the opinion of this court.

      Casey, for appellants.

      Slenker, contrá.
   Bell, J.

The objection taken against the order to open the road in question, that it was issued prematurely, is well founded. The return made by the viewers was read and confirmed nisi, on the 21st of December, 1846. At the succeeding February sessions a petition for a review was presented, and an order accordingly awarded. On exceptions filed to the report of the reviewers, it was set aside on the 25th of May, 1847. On the 29th of the same month the report of the reviewers was again read and confirmed, and then, for the first time, the width of the road was fixed by the court, with a direction that it should be opened to that width. It is conceded, though not stated explicitly upon the paper-book, that before the next succeeding term of the court an order to open the road was issued to the supervisors of the proper townships. It is settled by the case of the road in Bucks county (3 W.-105), that, under the 4th section of the act of 1836, the report of a road cannot properly be entered of record until the next succeeding court after the breadth of it shall be fixed, and thenceforth such road shall be taken, deemed, and allowed to be a lawful public road or highway, or private road, as the case may be. The Quarter Sessions ought to and mostly do direct the width of the road immediately upon the confirmation of the report of the viewers, and then parties interested have but until the next regular sessions to petition for a review. But as the object of the law is to give the period of a vacation between term and term, after the width is fixed by the court, should this be neglected at the first term, the parties in opposition are not excluded by lapse of time until a term has intervened after the width is ascertained. In the present instance, the petition for a review was presented at the term following the report of the viewers, and the second report being set aside for informality at the third term, the breadth of the road was for the first time ordered. Now, under such circumstances, according to the case cited, time should have been allowed to the petitioners for a review until the succeeding term, either to present a new petition or ask the appointment of another jury of review upon the old. Instead of this, an order to open the road was immediately issued, under which the mischief feared by the opponents of it may be accomplished before redress can be had. The order to open must, therefore, be quashed as being improvidently issued.

According to some recent cases, the width of the proposed road must be fixed upon the return and confirmation of the report of the viewers, otherwise the proceeding is null; and this, though there may be a standing rule of court directing the width in all cases, unless otherwise specially ordered. But this exception is not made here, and it is consequently not presented for consideration.

There is nothing in the two remaining exceptions taken against the proceeding.

The act of 24th February, 1845, under which it was commenced, requires that the three viewers shall view, and that before doing so they shall give notice, by advertisement, when and where they will assemble for the purpose. But it is not necessary these facts should be affirmed on the face of the report. The act of 1886, and the prior road-laws, require at least five of the six viewers to view the ground proposed for the road, but it was determined to be unnecessary specially to aver this in the report. It is enough if shown, per testes, to the Quarter Sessions on exceptions filed: Road to McCall’s Ferry, 13 S. & R. 25. For, too, although notice to land-holders and parties interested of the time fixed for the view has, under the general laws, been deemed essential, it may sufficiently be shown by parol, and such is the constant practice. The presumption is, that the requirements of the statutes have been complied with by the viewers, and therefore it is not necessary specially so to state on the report, unless specially required by the acts regulating the subject: Schuylkill Falls Road, 2 Binn. 250; Spear’s Road, 4 Binn. 174; Road to McCall’s Ferry, 13 S. & R. 25. The third section of the act of 1836 requires the report of the viewers to state, inter alia, particularly who of the viewers were present at the view. But this is not required by the act of 1845, and therefore you may show it in pais when called on to do so. With the exception of the order to open this road, the proceedings, so far as they have progressed, are well enough. But as the order will be set aside, I think an opportunity should be afforded to those who opposed the view, to have a review of the- ground. This may be done under the old petition, which, if necessary, may be amended for the purpose.

The order to open the said road is quashed, and the record remitted to the said court of Quarter Sessions for further proceedings.


author: Coulter, J.

text:
    Robb v. Bowen.
    Five years’ non-claim after a sale for taxes, under tie act of 1815, bars the owner’s right; and, since the act of 1824, the limitation commences from the day of the sale.
    In error from the Common Pleas of Lycoming.

      July 26. Ejectment. The plaintiffs were the former owners of an unseated tract of land, sold for taxes in 1886. Possession was not taken by the purchaser; and the question was, whether the plaintiff was barred by five years’ non-claim.
    Lewis, P. J., instructed the jury that the limitation in the act of 1804 did not extend to sales under the act of 1815.

      milis and Maynard, for plaintiff in' error.

      Armstrong, contrá.

      July 29.
   Coulter, J.

In McCall v. Hornebaueh, this court decided that the limitation contained in the 3d section of the act of 1804, of five years, is not repealed by the act of 1815, but is in full force; and in Bayard v. Inglis, 5 W. & S. 465, it was ruled that a purchaser at a treasurer’s sale, who enters into actual possession of the land, and continues it for five years, making improvements, cannot be disturbed by the owner, after the lapse of five years. It is, therefore, fully settled by authority, that the 3d section of the act of 1804 is not repealed by the act of 1815. This of itself would be sufficient to reverse the judgment below, if judicial precedent furnishes a rule; because the court below say that the limitation of five years applies to sales under the act of 1804, but has no application to sales under the act of 1815. An argument, however, has been conducted on the ground, that although the reason of the court below was not a good one, yet the judgment was correct, inasmuch as the limitation did not apply to this case, actual possession not having been taken. But that is not necessary since the act of 1824, which authorizes an action of ejectment to be brought by the owner against the purchaser at treasurer’s sale, notwithstanding he, nor any person under him or otherwise, resides on the premises.

In the case of Waln v. Shearman, 8 S. & R. 357, the Supreme Court decided that the limitation commenced at the time possession was taken by the purchaser, because then the owner had, for the first time, an opportunity of legally asserting his title. The -reason of the law is the life of the law; and the spirit of that decision is, that it would he unjust to make the statute run, when the owner had no opportunity to assert his title, but perfectly fair to launch it from the time he had such opportunity. After the act of 1824, the owner had a fair and full opportunity of commencing his action and asserting his right, when the treasurer’s deed was delivered to the defendant or those under whom he claims; and the statute then began to run. There was error in the charge of the court.

The judgment is reversed, and a venire de novo awarded.


text:
    Chappel v. Row.
    Where A. granted lands to B-, reserving to the use of his father and mother during their joint lives, the possession of the land as a home and residence for them, and at their death the possession to vest in B.: A. is entitled to recover the possession during the lives of his father and mother upon their ceasing to occupy the land. And they have no power to alienate the possession, and har . the right of A.
    In error from the Common Pleas of Union.

      Aug. 1. Ejectment. The defendant was the lessee of J. L. Chappel and wife, for their joint lives, rendering rent. The plaintiff had granted the lands to Merritt Chappel in fee, reserving “ to the use of his father and mother (the defendant’s lessors) the possession of the land during the lives of the said father and mother as a home or residence for them, and at the death of the father and mother of the said grantor, the possession then to' vest in the said Merritt Chappel, the present grantee.”
    The court said the plaintiff could recover.

      Levin and iSwineford, for plaintiff in error.

      Slenker and Miller, contó.

      Aug. 4.
   Rogers, J.

The reservations in the deed operate by way of limitation or condition subsequent, for by its terms the right of possession endures only while the father and mother of the grantor or grantee continue to reside on the premises. It was clearly the intention of the parties to the deed, to provide a comfortable home for their aged parents during their joint lives, provided they made the property a permanent home or residence. Analogous cases may be readily cited. Thus an estate to a man and his heirs, tenants of the manor of Dale, is an estate on condition that he and his heirs continue tenants of that manor. So also an estate of freehold durante viduitate, which is an estate on condition that the grantee do not marry. On the breach of these conditions by the failure of these contingencies — by the grantees not continuing tenants of Dale or not continuing sole, the estates which were respectively vested in each grantee are wholly determined and void. And in this case, by leasing the profits to another and removing from the premises, their possession' is for ever gone. They have no right to assign their interest to a stranger, as such a transfer would be contrary to the intention of the parties, who only designed to vest in them a qualified possession to be enjoyed by themselves alone. A person may well grant the right to one which he would be unwilling should be transferred to another, of which the cases cited are- instances: 1 Bl. 419. In whom, then, is the right of possession ? is the next inquiry. Clearly not in the father and mother, or their lessee, for their right by the act of transfer is determined and void. Is it in the grantee ? we think not. After granting the fee simple in apt words, the reservation runs thus: “And Jason W. Chappel, the present grantor, doth by these presents reserve to the use of his father and mother, the possession of the said land during the lives of his said father and mother, as a home and residence for them, and at the death of the father and mother of the said grantor, the possession then to vest in the said Merritt Chappel, the present grantee.” The grant is in fee, but the right of possession is not vested in the grantee, until the death of the father and mother, a contingency which has not yet happened. I at one time doubted whether the forfeiture did not enure to the benefit of the grantee, but to this construction is opposed the words of the deed to Avhich I have referred. The right of possession cannot be in abeyance. It must be in some person. If not in the father, mother, lessee, or the grantee, it must be in the grantor, in whom the jury have found it was vested át the time of the grant. And this, it would seem, was the intention of the parties. The deed is very inartificially drawn, but if we can discover the intent, it must govern in a deed as well as a will, unless contravened by some technical rule of law. The grantor makes the reservation, and to whom but himself; not clearly expressed, it is true, but implied. The possession is reserved to himself, for the use of his father and mother. Indeed it may be doubted whether it is not necessary to imply this to support the reservation, as it may be questioned whether a reservation in a deed to a stranger is good: Sheppard’s Touchs. 80. But be this as it may, it is not taking too great a liberty with the deed to read it thus — And the said Jason W. Chappel, the present grantor, doth by these presents reserve to himself, for. the use of his father and mother, the possession of said land, &c. This emendation, which we conceive ourselves authorized to make, removes any difficulty.

Judgment affirmed.


text:
    Miller v. Miller.
    A supra-riparian owner is liable to tbe owner of tbe land below him, for every material diminution of the flow of the water by a diversion from the stream, whether for irrigation or other purposes; and this, though no actual injury may have been suffered.
    In error from the Common Pleas,of Union.

      Aug. 1.
    Case for a nuisance in diverting a stream of water. The evidence was that defendant, being the owner of certain land upon a stream, conveyed a part lying farthest down the stream to plaintiff, without a special reservation of the right to the water. He then opened ditches on his land, and turned the water into them for the purposes of irrigation.
    Wilson, P. J., told the jury, “ A man may use the water for the purpose of watering his meadows, provided, he so constructs his races, or the ground is so situated, that any surplus will return again into the natural channel before it reaches the occupant below him, and provided the flow of water ivhich the occupant below was previously entitled to the use of, is not materially diminished; where he goes beyond this, even for watering his meadows, he must retain the right to do so from the occupants on the stream below, or lie subjects himself to a suit for damages, although the damages be small; whether a stream is materially diminished, so as to subject the occupier who diminished it to damages, must in some measure depend on the capacity of the stream: when the stream is so large as to come under the denomination of a creek or river, a large quantity may be used for irrigating land, Avithout any appreciable diminution of the quantity, and no one injured, or have a cause of action against the person lessening the quantity. But Ayhen the stream is so small that the quantity taken for irrigation 'perceptibly and materially diminishes it, the person affected by it will have cause of action, and the question does not turn on whether the occupier below who complains, has sufficient water left for his domestic purposes,, or more than he ivas previously using from the stream, but whether the quantity flowing on to his land, which he had a right to use, has been materially lessened or diminished.”

      Miller, for plaintiff in error.
    The jury were led to believe the only question was, Avhcther the water Avas diminished; not whether the plaintiff was injured: 1 Bac. Abr. 121; 10 Johns. 240 ; 15 Ib. 214; 17 Ib. 320; 4 Dall. 330; 3 Harr. Dig. 2150; 2 W. 327; 6 Barr, 32.

      Linn, contri.
   Bell, J.

As the evidence given on the trial is not brought up with the record, we are unable to ascertain the precise extent of the diversion of the Avater in question, or of its use by the defendant. Nor is this, perhaps, necessary to enable us to decide understandingly the principal point presented on the argument. It is not Avhether the owner above has a right to use the water flowing through his lands for the purposes of irrigation, but Avhether he is bound so to use it as not materially to diminish the quantity which before flowed over and across the land of the occupier below.

The general rule on this subject is, that any proprietor of lands on the banks of a river or other stream, has an equal right to use the Avater Avhich flows adjacent to his property; but, without the assent of the adjoining proprietors, he cannot divert it or diminish the quantity of water which Avould otherwise descend to the proprietors below. The law requires of the party that he should use the stream in a reasonable manner; and one of the conditions of this use is, that he do not destroy or render useless, or materially lessen or affect the application of the water by those situated above or below him on the stream. The general doctrine will be found thus stated by most of the best -writers on this subject, in whose treatises are collected the numerous cases which might be cited in support of it. Of these, it will be unnecessary to notice more than one or two. In Wright v. Howard, 1 Sim. & Stu. 190, and in Mason v. Hill, 3 Barn. & Ad. 304, the rule I have stated is noticed and vindicated. In the first of these cases, on the authority of which the second was finally determined, the Master of the Rolls observed, “ Every proprietor who claims a right either to throw the water back, above, or to diminish the quantity of water which is to descend below, must, in order to maintain his claim, either prove an actual grant or license from proprietors affected by his operations, or must prove an uninterrupted possession of twenty years.” And he adds, “An action will lie at any time within twenty years, when injury happens to arise in consequence of a new purpose of the party to avail himself of the common right.” To the same effect is Arnold v. Foot, 12 Wend. 330. There it was held that the owner of land upon which a spring rises 'has no right to divert it from its natural channel, although its waters are not more than sufficient for his domestic uses, for his cattle, and for the irrigation of his land. The sum of the authorities may be thus briefly stated: — Though every proprietor has a right to the reasonable use of the water running through his lands, he cannot, by the mere act of opposition, diminish the quantity of water which ran through his neighbour’s land, to the prejudice of his estate in point of value, although enough was still left to the neighbour for the purposes for which he had actually used the water. Though this is the settled doctrine, some difficulty frequently occurs in its application to particular cases, arising principally from the peculiar uses to which water may be applied, and the consequent necessity of managing it in a particular way. Thus in Pennsylvania it was held in Hoy v. Sterrett, 2W. 327, and subsequent cases, that an upper mill-owner is not answerable to one lower down the stream, for detaining the water in his dam for several days, if this be necessary to the action of his mill, though the lower mill is thereby injured. This would seem to arise from the necessity of the case, and the impossibility of using the water beneficially in any other way; though even these considerations have not produced uniformity of opinion, for Potliier lays down the rule that the owner of the upper stream must not raise water by dams so as to make it fall with more abundance and rapidity than it would naturally do, and injure the proprietor below (Traité du Qontrat de Société, Second App. No. 236). Of this rule, however, Kent justly observes it must not be construed literally, for that would be to deny all valuable use of the water to the riparian proprietors. The reasonableness of the detention of the water by the upper proprietor, must depend on the circumstances of each case, and is to he judged of by the jury: Hetrich v. Deachler, 6 Barr, 32. In judging of the proper use of water, the size and capacity of the stream rightly enters into the inquiry. The distinction taken by the court below between a stream so larg#as to be properly designated a creek or river and a mere rivulet used for the purposes of irrigation, is perfectly well founded. In the one case, of course a much larger quantity may be absorbed without perceptible diminution or actual injury, than in the other. In the use of it, some evaporation and decrease of it, and some variation in its weight and velocity, must necessarily take place. In such case the maxim is, de minimis non curat lex. But whenever so much of the volume of water is obstructed as to be plainly perceptible in its practical uses below — whenever the channels which before were filled, exhibit the loss of the accustomed fluid, an injury is committed for which an action may be sustained, though it may not have been actually used by the lower proprietor. It is scarcely worthwhile to elaborate the subject, which, in the aspect it assumes in the case in hand, is sufficiently simple. It may not, however, be useless to illustrate it by the remark, to which all must assent, that the owner above cannot take all of the stream, and this drives us necessarily upon the rule that he shall not materially diminish it, for, from the very nature of the subject, there is none other of practical operation.

For this reason, we find no error in that part of the charge principally complained of. The learned judge was right in saying that the question does not turn on whether the occupier below, who complains, has sufficient water left for his domestic purposes, or more than he was previously using from the stream; but whether the quantity flowing on his land, which he had a right to use, has been materially lessened or diminished ? There is nothing in the bills of exceptions. The second of them was properly abandoned, and the first is not better founded. The declaration made by the defendant of his interest was certainly evidence, leaving it open to him to show he had never carried it into effect. It was proper to show the spirit by which he was actuated,- if for nothing else.

Judgment affirmed.


author: Per Curiam.

text:
    Weidner v. Conner.
    Where testimony is taken on depositions as to the genuineness of an instrument, the original must be exhibited to the witness; and where he is examined on interrogatories, they must be attached, so that the court may see his answers were pertinent.
    Iküi error from the Common Pleas of Northumberland.

      Aug. 1.
    Debt on a note. The defendant offered the deposition of a witness to prove it was-a forgery.' It appeared from the face of the paper, that he was examined on interrogatories, and they were not attached. In answer to the second interrogatory, he said, “ the ‘ 3’ hundred dollar note, a copy of which is appended to this deposition, dated Aug. 5, 1845, payable to the bearer, was not signed by Daniel Weidner. Both the body of the note, and the signature, is a forgery, I know that fact. Joseph F;.. of.....got the note from me.” A copy was annexed of a note corresponding in date, amount, and time, with the one in suit, and concluding thus, “purporting to be signed by Daniel Weidner whether it corresponded in other particulars, the paper-book did not show.
    The rejection of this, and the answers to similar interrogatories, was assigned for error.

      Jordan, for plaintiff in error,
    cited 3 Barr, 419 ; 7 W. & S. 392.

      MiLLer, contra.
    4 S. R. 298; 7 Ib. 171.
   Per Curiam.

It was impossible for the witness to identify a note which was not before him. He had nothing to swear by but a copy, and even that was an imperfect one. The original ought to have been before him, and recognised by him. Besides, the interrogatories were not attached; and the court could not say whether the answers were pertinent to them.

Judgment affirmed.


text:
    Richter v. Penn Township.
    Where the accounts of a county treasurer of the school-fund have not been previously audited, the auditors are not confined to his accounts for the year preceding the settlement.
    Where the treasurer has paid money upon orders not regularly attested, he is hound to show there was a good consideration for the payment.
    In error from tbe Common Pleas of Union.

      Aug. 1. The questions in this cause were, 1st, Whether tbe county auditors could examine tbe accounts of tbe treasurer of tbe school-fund for more than the previous year, where tbe accounts of prior years bad never been audited. 2d, Tbe defendant bad paid an order signed by tbe president of tbe board of school directors, but not attested by tbe secretary. Part of tbe consideration was tbe price of certain stoves. Tbe court said, tbe order being informal, tbe defendant must show tbe consideration, and if tbe board bad contracted for tbe stoves at tbe price paid, tbe defendant was discharged without regard to their value; but if they had not contracted, be was protected only to tbe extent of them value. Tbe defendant sued out this writ of error.

      Qasey and Jordan, for plaintiff in error.

      Miller and Bellas, contó.

      Aug. 4.
   Burnside, J.

We think tbe course pursued in this case by the Common Pleas was judicious and well calculated to administer justice between the parties. Richter was treasurer of tbe school-fund for tbe district of Penn township, from 1844 to 1846, both inclusive: during all that period he received all moneys belonging to tbe school district, whether tbe same was derived from appropriations by tbe state, district taxes, or otherwise. He paid out money on orders, but be totally neglected to prepare 'his annual accounts, or to have bis accounts audited and adjusted, as required by tbe 9th section of tbe act of tbe 18th June, 1830: Purdon, 7th ed. 340. After the death of Richter, in 1846, tbe auditors met for tbe first time to settle bis accounts. From this settlement tbe executors appealed: when tbe appeal came before tbe court, an issue was directed to be joined between tbe parties. Tbe plaintiff to declare for money had and received, and the defendants to plead payment with leave, &c. The executors insisted that their testator’s account could only be examined for tbe last year, and relied on the case of Leasure v. Mahoning Township, 8 Watts, 551. But in that case, Leasure, the supervisor, gave in evidence a prior settlement of his accounts for the preceding years by the auditors, and the court held, that subsequent auditors have no right to re-examine previously audited and settled accounts; but that is not this case — here the treasurer omitted or neglected to prepare and submit his accounts to the auditors, and the creditors were equally negligent in not calling him to account. If the auditors of the prior years had audited and adjusted the treasurer’s account, that settlement unappealod from would not have been open to reexamination by subsequent auditors; but as the accounts had remained unsettled, to ascertain the balance for or against the treasurer at the commencement of the last year, an examination of the debts and credits of the preceding year yras indispensable; as facts were to be ascertained and determined, an issue was properly directed.

The district had but recently accepted the school system. I think the manner in which the business of the township was transacted, demonstrates that this was a misfortune. The accounts in question wore the first which had arisen after the system was adopted. The act of 1836, being referred to, requires that all orders upon the treasurer of the common-school fund, shall be signed by the president of the board of school directors, and attested by the secretary of the board. There was evidence that the president of the board signed orders in blank, and left them in the hands of Dr. Waggonseller, who was the secretary and son-in-law of the treasurer. One order had been issued for $160, which was not attested by the secretary. The judge permitted the defendants to show the consideration of this order, and that certainly was as favourable to the executors as they ought to desire.

There was a contest about the price of the stoves purchased by the Waggon sellers; and the allegation was, that the treasurer, who was a member of the board, procured his son-in-law, who was the secretary, who with his brother, furnished the stoves for the now school-house, being at a price beyond what they could have been purchased for from the others. The evidence on this subject was admitted by the court on the ground that the treasurer colluded in a manner with Dr. Waggonseller, who managed the business — and the evidence was manifest that he knew how the orders were drawn and the business transacted.

We think the evidence was properly admitted. It was for the jury to determine under the evidence, whether Richter, as a manager and treasurer, colluded with the secretary in making improper charges, and filling up orders signed in blank by the president.

The points were well answered by the court. The plaintiffs in error having failed to sustain either of the errors assigned:

The judgment is affirmed.