author: Mr. Justice Paxson

text:
    Franklin Township, to use of Thomas Norton, versus Osler.
    1. A sheriff is not liable to an attachment as for a contempt in not paying into court the money made upon an execution levied upon real estate, where he has in good faith, after the return day and without notice of any opposing claim, applied the money to the liens. In re Bastían, 9 Norris 472, followed.
    2. The Act of April 20th 1846, which provides for a special return where a lien-creditor becomes the purchaser at a sheriff’s sale, does not compel the sheriff to make a return unless required to do so by the purchaser, and before said purchaser shall receive the benefit of the act he must produce to the sheriff from the record a certified statement of the liens, showing that he is a lien-creditor.
    3. In the absence of notice to the contrary the sheriff has a right to distribute the proceeds of his sale; but he does so at his own risk. Án attachment for contempt, however, is not included in such risk; it is only his official bond that is in peril, and he is liable thereon i'f he has misapplied the money.
    4. A rule was granted on the sheriff to pay the money into court. This rule was made absolute, and the sheriff took a writ of certiorari. Held, that in strict practice, this writ should not have issued until after an order by the court below directing an attachment to issue against the sheriff.
    June 24th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkby and Sterrett, JJ. Woodward, J., absent.
    Certiorari to the Court of Common Pleas of Sullivan county: Of May Term 1879, No. 90.
    Appeal of John Utz, sheriff of Sullivan County, from an order of the Court of Common Pleas of said county, ordering him to pay into court the proceeds of the sale of the real estate of John Osier, which said sheriff had distributed.
    On May 27th 1878, W. T. Davies hela a judgment against Osier, entered in the Court of Common Pleas of Sullivan county, for $292.37, with interest from October 9th 1877, and costs. This judgment was a lien upon real estate of the value of $1500. Franklin township held a judgment, entered December 22d 1874, which had been marked satisfied. Of this judgment Davies had no knowledge. Previous to the sale he examined the judgment docket and found no unsatisfied liens prior to his own. The sale took place May 27th 1878, Mr. Davies bidding only enough to cover his judgment. On May 22d 1878, the prothonotary had made out a certified statement of liens for L. M. Bowman, the plaintiff in the judgment, on which the land was subsequently sold, whereby it was shown that the judgment of W. T. Davies was the first, and that of N. C. Johnson, the second lien. This statement the sheriff had seen before the sale. The purchaser paid his bid, and the sheriff having examined the judgment docket, and finding that the judgment of Mr. Davies was a first lien, paid him the amount of it from the proceeds of the sale, and returned his writ accordingly. Afterwards the prothonotary, who it was alleged had marked the judgment of Franklin township “satisfied” by mistake, erased the word satisfied. July 2d 1878, Franklin township, by its attorney, made an affidavit alleging that the money of right belonged to them, and July 9th 1878, obtained a rule on the sheriff to pay the money into court. This rule was served August 12th, which was the first notice the sheriff had of any claim made by Franklin township to the proceeds of the sale. This rule was afterwards made absolute, by the court, Ingham, P. J., and from this order the sheriff took this appeal.

      Davies & Carnochan and Dunham, for appellant.
    By the record in this case the money had been paid out by the sheriff, prior to the application for the rule — the money was not -in his possession. Therefore, the remedy of any party aggrieved was by an action for wrongfully paying out the money; not by this summary proceeding for contempt. ' The sheriff is not bound to go beyond the judgment docket in making distribution: Mann’s Appeal, 1 Barr 24; 1 T. & H. Pract., part 2, p. 627.
    The parties have a complete remedy against the prothonotary or sheriff. The latter could only find relief by taking this appeal. While the Act of April 20th 1846, Pamph. L. 411, Purd. Dig. 655, contemplates the payment of liens for the benefit of the purchaser, it requires the purchaser to bring a statement of the liens to the sheriff. The sheriff did not commit a blunder. If there was one committed it was by the prothonotary in marking the judgment satisfied. This case is analogous to Mann’s Appeal, 1 Barr 24. It is not contradicting the record to show its actual state at the time when the rights of parties attached.

      Ellery P. Ingham, contra.
    This appeal is onlv from an interlocutory order.
    [Sharswood, C. J. — “ There is no appeal; it is a certiorari, and the record having been brought up thereby, we can review the same. The question is, can the sheriff be attached?”]
    When the sheriff pays out money without invoking the aid of the court or the Act of 1846, he does so at his own risk, and the money is in his hands by construction of law. When a creditor sees his judgment properly entered his responsibility c.eases: Coyne
      v. Souther, 11 P. F. Smith 458. The record cannot be impeached by parol.
    The sheriff did not ask the prothonotarv for a list of the liens, he did not even ask him which judgment was entitled to the money, but paid it out on his own responsibility — doing this it was at his own risk, and he is liable for the consequences: McDonald v. Todd, 1 Grant 18; Williams’s Appeal, 9 Barr 267; Mather v. McMichael, 1 Harris 303.
    October 6th 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

The question presented by this record was decided at the last term in the Middle District, in the case of the rule upon John S. Bastian, sheriff of Lycoming county (9 Norris 472). It was there held that a sheriff was not liable to an attachment as for a contempt in not paying into court the money made upon an execution levied upon real estate, where he had in good faith, after the return day, and without notice of any opposing claim, applied the money to the liens. That is precisely this case. The court below, however, held that the sheriff neglected his duty in not complying with the Act of 20th of April 1846, Purdon 655, Pamph. L. 411, providing for a special return where a lien-creditor becomes the purchaser at a sheriff’s sale. But that act was intended, as plainly appears upon its face, for the benefit of the purchaser -who shall be at the same time a lien-creditor. It enables him to obtain a credit upon his lien to the extent thereof instead of paying the amount in cash. That the sheriff is not bound to make a return under this act unless required to do so by the purchaser is palpable from its proviso, which reads: “And provided further, That before any purchaser or purchasers shall receive the benefit of this section, he or they shall produce to the sheriff or other person so making said sale, a duly certified statement from the proper records, under the hand and official seal of the proper officer, showing that he is a lien-creditor, entitled to receive any part of the proceeds of the sale as aforesaid.” Here the real estate was sold for $450, and purchased by N. C. Johnson, a lien-creditor. It is not alleged that he produced a certified copy of the liens to the sheriff, and demanded a special return under the Act of 1846. He makes no complaint of the absence of such a return, and no one else has a right' to do so. Thé sheriff applied the fund first, to the payment of the costs §56.30 ; to the judgment of W. T. Davies, $305.23, and the balance, $88.77, to the judgment held by the purchaser. It now appears that a judgment in favor of Franklin township for $700, was prior to either of the above judgments and unsatisfied, though at the time of the distribution it was erroneously marked satisfied as is alleged, and therefore did not appear on the searches procured by the sheriff. The rule upon the sheriff was not taken until some weeks after he had distributed the money, and after the term of court had passed to which the process was returnable. Under such circumstances he is not liable to attachment in not paying the money into court. In the absence of notice to the contrary, he had a right to distribute the money. He does so, however, at his own risk. But an attachment for contempt is not included in such risk. It is only his official bond that is in peril. He is liable upon that, if he has misapplied the money. We need not pursue the subject further; It was sufficiently discussed in the case above cited.

In strict practice, this writ should not have been taken until an order in the court below, directing an attachment to issue against the sheriff. As the case is here, and the principle has been heretofore ruled, we have concluded to decide the case as the record stands.

The order of the court below making absolute the rule upon the sheriff to pay the money into court, is reversed at the costs of the township of Franklin.


source: Caselaw Access Project

author: Mr. Justice Mercur,

license: Public Domain

text:
    Appeals of City National Bank and York County National Bank.
    1. It is not essentially necessary for a mortgage to show on its face, that it was given for purchase-money, in order to give it a preferred lien.
    2. II., by articles of agreement, sold certain land to N. Before the latter had fully paid therefor, he sold the land to P. and W. To avoid the expense of an intermediate conveyance it was agreed that H. should convey directly to P. and W., and they should execute a mortgage to him to secure the residue of the purchase-money due to him, and also to execute to 1ST. another mortgage to secure the payment of the remaining sum agreed to be paid for the title. The deed and mortgages were made of one date and were executed, delivered and recorded the same day. Seld, that the mortgage to H. was entitled to a preference over the mortgage to N.
    June 2d 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J. absent.
    Appeals from the Court of Common Pleas of Lycoming county: Of May Term 1879, Nos. 214 and 215.
    Appeals of the City National Bank of Williamsport, and the York County National Bank, from the decree of the court in the distribution of the proceeds of the sheriff’s sale of the real estate of Joseph H. Wonderly and Ozias Potter, deceased, in the hands of Albert T. Nichols, his administrator.
    John B. Hall, being the owner in fee of certain real estate known as the “Foundry property,” in the city of Williamsport, in 1864, entered into articles of agreement to sell the same to Albert T. Nichols who in 1866, sold the same to Ozias Potter and Joseph H, Wonderly, there being at the time a balance of $16,000 due Hall from Nichols on the aforesaid agreement. On the 31st of October 1866, Hall executed and delivered to Potter and Wonderly direct a deed of the premises, and the same day Potter and Wonderly gave to Hall bonds for the $16,000 due him from Nichols, and a mortgage of the premises to secure the same; and to Nichols, the same day, bonds for the sum of $24,000 and a mortgage of the same premises to secure the same. The deed and two mortgages were filed for record on the day of their execution.
    • The bonds to Hall were all paid by the obligors, except one of $4000, which was assigned by Hall to E. L. Piper, and' by Piper to Mrs. Catharine J. Packer. Three of the bonds given to Nichols, amounting to $6000, were paid by the obligors. Of these, one bond of $4000, had been assigned by Nichols to Eobert Porter, in 1867, as collateral security for a loan of $5500, for which Nichols had given his note, with endorsers, and which note, with the interest thereon, remained unpaid, and said bond was assigned by Porter to Oliver Watson, on the 9th day of May 1878. The remaining seven bonds of $2000 each were assigned by Nichols to E. L. Piper, December 9th 1867, and reassigned by Piper to Nichols, in 1874 and 1875; and subsequently thereto, to wit, on the 29th of May 1875, two of said bonds were assigned by Nichols to the City National Bank of Williamsport, as collateral security for a loan to said Nichols upon his note, with endorsers, which note remains unpaid; and five of said bonds were assigned by said Nichols to William IT. Armstrong, and by him to the York County National' Bank as collateral security for a loan of $10,000, obtained by Nichols on his notes, endorsed by said Armstrong and others, and which note remains unpaid and the endorsers'were never released. The bonds were assigned to Armstrong to obtain his endorsement of Nichols’s notes, and assigned by Armstrong to thé York County National Bank after failure of Nichols to pay his notes.
    On September 6th 1869, Ozias Potter, one of the obligors in the said bonds and mortgages, and owner of the undivided one-half of the property described in the aforesaid deed and mortgages, died, leaving to -survive him a widow and an adopted daughter, Ella B., since intermarried with Oliver Watson, Jr., having made a will, and on the 8th of October 1870, letters of administration de bonis non were granted to the aforesaid A. T. Nichols.
    On the 11th January 1871, Joseph H. Wonderly, the other obligor in said bonds and mortgages, and owner of the other half part of the said premises, with his wife, by their deed dated January 10th 1871, conveyed to said Nichols the one undivided half part thereof. This conveyance was expressly made subject to the payment by Nichols of the balance of the debt and interest due upon both of the aforesaid mortgages, and the fact that part or all of the bonds thereby secured had been assigned to third parties was distinctly recognised. This deed also contained a covenant by Nichols “ to assume and pay the balance of the debt and interest owing upon said two mortgages and bonds secured thereby, and to save harmless the said Wonderly from any liability for the same,” and it was moreover expressed that the performance of said covenant by said Nichols was a part of the consideration of said deed, and the deed Was executed by Nichols, as well as the grantors. Mrs. Catharine J. Packer issued a scire facias upon the Hall mortgage, obtained a judgment, and issued a levari facias to May term 1878, and then assigned the judgment to Oliver Watson. A sheriff’s sale of the property to Oliver Watson realized $9800, for which sum, the sheriff returned he had taken the receipt of Oliver Watson under the Lien Creditor Act, Mr. Watson claiming that the fund should be appropriated first to the payment of the Hall mortgage, balance in full of debt and interest, $5016.47, and the balance should be applied to the bond which had been assigned by Nichols to Porter and by Porter to him, the said Watson, and so the auditor reported. To this report exceptions were filed on the 31st day of December 1878, by the City National Bank and the York County National Bank, and the case referred back to the auditor to make a new distribution on the principles indicated in the opinion pf the court, to wit, that Nichols, by virtue of his .succession to Wonderly’s half interest in the property, and having paid off the mortgage, was entitled to subrogation as against Potter, but confirming the distribution so far as applied to the Hall mortgage. The auditor made a second report, distributing the $4500, pro rated upon the whole of the Porter bond and the one-half of the amount of the bonds held by said banks. To this report Oliver Watson and Oliver Watson, Jr., and the banks filed exceptions on the 18th of April 1879, alleging as error that the auditor erred in not distributing the whole balance of $4475 to the Porter bond; that the distribution was not in accordance with the law and the facts, and that there was error in the court refusing to confirm the first report and referring the same back to the auditor.
    On May 9th 1879, a final decree of the court was filed, making a distribution different from that made by the auditor, but not as claimed by Oliver Watson, overruling the exceptions, except to the extent that the distribution made by the auditor was changed by the opinion as filed by the court, and confirming the report of the auditor absolutely. By this decree the $4475, were distributed as follows:
    One-half thereof to the Porter bond held by Watson, $2287.50
    And of the remaining one-half, to wit, $2237.50:
    To Oliver Watson on the Porter bond, . . . 280.46
    $2517.96

      To the bond held by City National Bank, 579.47
    To the bond held by York County National Bank, 1377.57
    $4475.00
    From which final decree Oliver Watson and Oliver Watson, Jr., appealed to the Supreme Court [see report of case, 9 Norris 426: Rep.], and the two banks took these appeals, alleging that the court erred,
    1. In deciding that the Hall mortgage was entitled to be paid first, in full, out of the proceeds of the sheriff’s sale.
    2. In deciding that the bonds held by the City National Bank, and the York County National Bank, were only entitled to share in the distribution as to one-half their amount.
    3. In deciding that one-half of the Watson bond should be first deducted out of the balance for distribution, after paying the Hall mortgage.
    4. In making distribution to Watson on the basis of the entire amount of the bond assigned to him, the same having been assigned as collateral security for a debt of $3000 to Porter.

      A. J. Dietrick, for the City National Bank.
    The appellant is still disposed to adhere to the views and position taken before the auditor, that the Hall mortgage and the Nichols mortgage, having been executed and recorded on the same day, and there, being no recital in the Hall mortgage that it was for purchase-money, therefore not differing from the Nichols mortgage; that there was nothing on the record of which purchasers of the bonds were bound to take notice; that therefore, the mortgages, as to such purchasers, §tand equal, and that consequently the City National Bank is entitled to share equally in the distribution of the proceeds realized from the sheriff’s sale of the premises upon which they were liens.

      Armstrong & Linn, for York County National Bank.
    A judgment paid may be kept alive in equity when justice requires it to be done: Fleming v. Beaver, 2 Rawle 128. A mortgagee who purchases the land bound by the mortgage will be allowed to use the mortgage for his protection against prior liens: Moore v. Harrisburg Bank, 8 Watts 138. The assignment of the bond to Porter, and by him to Watson, gives this bond no preference over other bonds covered by the same mortgage. All must be paid pro rata: Donley v. Hays, 17 S. & R. 400. The estate of Potter must bear its proportion of the joint encumbrance, and the right of Nichols to contribution inures to the benefit of the bondholders: Gearhart v. Jordon, 1 Jones 325.

      Clinton Llóyd and H. W. Watson, for the Watsons.
    Potter and Wonderly were joint obligors in the bonds to Nichols. Either might pay, and was in duty bound to pay, without consultation with the other. We contend that Wonderly paid the whole of the mortgage-debt, not the half thereof, as the court intimated in their opinion, by the sale of his undivided interest in the property to Nichols. The satisfaction of the mortgage and cancellation of the bonds were a part of the consideration of Nichols’s purchase, and as was said by Thompson, C. J.,in Abbott v. Kasson, 22 P. F. Smith 183, “ It would be a novelty for a purchaser of land to keep on foot his own mortgage against his own estate.” Granted that Potter was not a party to the transaction, still surely in a scire facias by Nichols, if he still held the bond Potter could make defence that the mortgage had been paid in full by Wonderly, in any way Nichols would be estopped from recovery on the mortgage by the covenant in the deed from Wonderly, by which he agreed as part of the consideration to satisfy the mortgage and cancel the bonds, and his assignees can stand in this respect in no better position than himself.
    October 6th 1879.
   Mr. Justice Mercur,

delivered the opinion of the court,

These two appeals were argued together. The errors assigned in each are the same. The main contention arises under the first assignment. It involves the question of precedence between claimants under two separate mortgages on the same land, both executed at one time, and recorded on the same day. It appears that Hall owned the land, and by articles of agreement sold it to Nichols. Before the latter had fully paid therefor, he sold to Porter and Wonderly. To avoid the expense of an intermediate conveyance, it was agreed that Hall should convey directly to Porter and Wonderly, and they should execute a mortgage to him to secure residue of the purchase-money due him; and also execute to Nichols another mortgage to secure the payment of the remainder of the sum which they had agreed to pay for the whole title. In pursuance of this agreement, the deed and mortgages were made of one date, and they were executed, delivered and recorded on the same day. Thus, substantially and in effect, the mortgage to Hall was for the purchase-money due him on the legal title, and the mortgage to Nichols was for the value of his equitable interest in the land. The mortgage to Hall having thus been recorded on the day of its execution and delivery, and on the day of the delivery of the deed, is clearly entitled to a preference over the other mortgage. Hall was guilty of no laches whereby his prior lien was defeated. It is not essentially necessary for the mortgage to show on its face, that it -was given for purchase-money, in order to give it a preferred lien. The fact that it was so given was known to mortgagors and mortgagees. Nichols could not assert any equity to defeat the superior right of the mortgage given to Hall. The record showed the deed from Hall, and the mortgage to him, on the same land; both to bear the same date, and that they were both recorded on the same day. These facts were sufficient to put a' purchaser of the mortgage from Nichols on inquiry. Hue inquiry would readily have resulted in full notice of the preferred lien of the Hall mortgage. The learned judge was therefore right in holding that the mortgage given to Hall for the purchase-money created a preferred lien.

The fifth assignment involves the existence of a fact which does not appear to have been questioned in the court below. No exception was there filed against the right to collect more than the sum for which the(bond was originally pledged in 1867 or 1868. The right to collect the whole bond, having there passed unquestioned, we will not now assume that right not to exist. Besides, it is shown, that in 1876, Nichols, formally in writing, did assign to Porter the whole bond and a proportionate part of the mortgage, and Porter assigned them to the appellee. No further consideration of the other questions is necessary. They have been sufficiently discusssed in the opinion just filed in Watson’s Appeal from the same decree.

Decrees affirmed, and the appeals dismissed at the costs of each appellant in its respective appeal.


text:
    Cresson’s Appeal.
    1. A bill for an account filed by the widow of a deceased partner against the surviving partner of a firm, after setting forth a former partnership deed and its terms, averred that in the year 1867 the said partners commenced the jewelry business, investing therein $12,000 of the funds of said.partnership, and carried on the same, in like manner as the said former business until the death of the deceased partner. The defendant in his answer averred that there were no funds of said partnership to invest in the jewelry business ; that the purchase was made by the assignment of a bond and mortgage belonging to defendant’s brother, the deceased partner; that they agreed to enter into the partnership in the jewelry business, and as the deceased was blind and could not give any personal attention to the business, it was agreed that defendant should receive for his services thirty dollars per week, and that the profits, after the payment of all expenses, including said salary, should be equally divided; that said salary had been regularly drawn and no profits were ever taken out of the business by either partner. In a subsequent paragraph of the answer, the defendant further averred, “ I deny that I never accounted to the deceased for the assets of the partnership aforesaid. He was thoroughly well aware of,the disposition and appropriation that were made of the receipts of the sale of the former business and property and approved of the same. He was also aware that I was drawing $30 per week as compensation for my services as manager of the jewelry business, in addition to my share of the profits, and approved of my doing so.” Seld, that the answer was responsive to the bill.

      2. The court below held that the second paragraph of the answer was guilty of duplicity, inasmuch as it was an averment of a subsequent license not part of the original contract, but something subsequently alleged in avoidance of liability, and therefore not responsive to the bill. Belli, that this was error.
    3. Eaton’s Appeal, 16 P. F. Smith 490, reviewed and followed.
    June 20th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkex and Sterrett, JJ. Woodward, J., absent.
    Appeal from the Court of Common Pleas of Montgomery county : Of January Term 1877, No. 169. In Equity. Certified from the Eastern District.
    Appeal of Walter Cresson from the decree of the court confirming the report of the master in certain proceedings for a partnership account, wherein Ann R>. Cresson, administratrix of the estate of William Cresson, deceased, filed a bill in equity against’ said Walter Cresson.
    Ann R. Cresson filed a bill in equity, which set forth that from 1850 to 1865, Walter Cresson, and the said William Cresson, had been copartners in the saw-manufacturing business in Conshohocken. That the said William, though blind, yet rendered efficient personal services therein; that the books and papers were in the possession and control of Walter, who received and appropriated all the funds of the business; that the firm name was Walter Cresson; that in 1865 the saw-manufacturing business was discontinued, and the factory and certain dwelling-houses sold for $24,000; after-wards other real estate was sold for $8750, and certain machinery for about $2000, all of which belonged to the two partners, and all of which moneys were received by the said Walter Cresson in various payments, some as late as the year 1873.
    That in the year 1867, the said partners commenced the jewelry business in Philadelphia, and invested therein the sum of $12,000 of the funds of the partnership, and carried on the same in like manner as the former business, until the death of William Cresson. That the said Walter Cresson had the management of all the assets, sales, receipts and moneys of the said partnership during the whole time of its existence, and had never accounted therefor, either in the lifetime of the said William Cresson, or to his administratrix, since his death, and praying for an account of'said partnership and a decree directing him to pay the plaintiff whatever should, on such account, be found due by him.
    This bill was filed Nov. 16th 1874. On the 14th of January 1875, the defendant pleaded the Statute of Limitations to so much of the bill as sought to compel him to account for the dealings of the partnership in the saw manufacturing business under the firm of Walter Cresson, and of the disposition of the $2000, or thereabouts, received for the sale of the machinery, and of so much of the $24,000, the consideration for the sale of the real estate sold in 1865, as were not a portion of the mortgage of $12,000 given for part of the purchase-money.
    To the remainder of said bill defendant answered that in October 1867, he entered into copartnership with his brother in the jewelry business. That they invested therein $12,000; not, however, of the funds of said partnership, but of certain real estate, stocks and bonds of which they were joint owners, and all of which stood in his name, a detailed account of which was given. That in 1865 he sold certain machinery to Disston for about $2000, and certain real estate for $24,000, of which $6000 was cash, $6000 payable in one year, and the balance, $12,000, payable after a term of years, and secured by mortgage on the premises. These moneys were by him invested in stocks and bonds, some of which were again sold, and debts of the partners paid.
    That in 1867 he purchased the stock in trade of the jewelry business of one Fries, assigning to him the $12,000 mortgage belonging to his brother and himself, and thenceforth entered into this business under the firm name of J. B. Powell & Co. at first, but afterwards as Walter Cresson. That as William Cresson was blind, and could give no personal attention to the business, it was agreed that the defendant should receive-$30 per week for his services, and that the profits remaining after payment of expenses, including said payment to himself, should be equally divided; alleging that the said salary had been regularly drawn by him; that neither of the partners had ever drawn any sums on account of profits out of the jewelry business; that they had been obliged to contribute $7698.91 of their joint means to said business over the amount originally invested. That in 1871 he had sold some more real estate for $1000, paid May 15th 1871, and $2795.79, paid 26th August 1873, which with about $231.18 received for old material sold, were used in the payment of debts due by himself. and brother.
    He further admitted that he carried on said jewelry business after the death of his copartner up to the 6th of October 1874, when an appraisement was made of the remaining stock and fixtures by appraisers agreed upon. From the appraisement made, he claimed a deduction of $1500 on account of the lease, and that all the debts of the concern were not paid. He also claimed a credit for certain sums paid William Cresson in the years from 1868 to 1874 of $4284.77. He admitted that there had never been a settlement of the accounts of the saw-manufacturing business, and alleged that his brother knew that the whole assets of the concern had been invested in the stocks and bonds stated, and there was nothing to account for these except his share of those investments and the jewelry business, of which he agreed he was to account; that the books thereof had been submitted to an expert, and that the plaintiff was fully advised of the accounts of said business. He further answered that William Cresson was fully aware of all the acts done, investments made, and of the drawing by him, the said defendant, of $30 per week for his services, and approved of the same. That there was nothing due on the saw-manufacturing business. That plaintiff was entitled to half the stocks, bonds, &c., and to what would be the balance of the jewelry business in settlement after allowing his claim as aforesaid. That he believed there was nothing due on the accounts of interest or rents received.
    To. this a replication was filed February 19th 1875, and a master appointed, who in substance found the following facts: From the year 1850 to 1865 William Cresson and Walter Cresson were partners in the business of manufacturing saws in Conshohocken, under the firm name of Walter Cresson, in whose name also was held all the real estate belonging to the two brothers. He conducted the business and had sole charge of the same, William Cresson being blind. In 1865 this business ceased, and during that year and the year 1866 Walter Cresson received from the sale of the saw factory, &c., about $27,000, which he invested in various securities, among which -was a $12,000 mortgage. In October 1867, Walter Cresson purchased the stock in trade of a jewelry business of one Fries, and made use of the $12,000 mortgage to make the purchase. He and William then carried on the jewelry business under the name of Walter Cresson, until it was dissolved by the death of William, February 24th 1874. The capital originally invested in the jewelry business was $12,000. To this were added subsequently various sums, amounting in the aggregate to the sum of $7658.91 (from which $362.42 were afterwards withdrawn), which were derived from the sales of other real estate made in 1871, and from the sales of some of the stocks before mentioned. The whole capital then in the jewelry business was $19,296.49. Walter Cresson kept the books of the concern. Among the entries in these books the firm is charged each week with a sum of money as paid to Walter Cresson. Aggregating these sums they are found to amount to $30 each week. For a large part of the time the entries are exactly $30 each week. There is nothing on the books to show what these entries are meant for; but they appear just like all the other entries of expenses charged; they amount in all to $11,093.10. No settlement of any kind was ever made of the partnership. The books were never examined by William Cresson nor by any one on his behalf in his lifetime. There was no agreement between the partners so far as disclosed by the testimony.
    Walter Cresson claimed that $30 per week was the compensation or salary he was to receive for his services in conducting the business. He gave his whole attention to the business. William Cresson gave it no attention and rendered no services in it. Both William and Walter resided at Conshohocken; William visited the store but seldom, and when he did go there, it was for the purpose of drawing money. There existed implicit confidence on his part in Walter, and their relations were those of entire friendliness. After the death of William Cresson, the books and accounts of the firm were placed in the hands of an accountant.
    On the 6th October 1874, an appraisement of the stock and fixtures of' the jewelry business was made by certain persons chosen for that purpose. The value, thereof returned by these appraisers was $7725.61. They also recommended a reduction for the assumption of the lease by Walter of $1500, and this the plaintiff conceded. In 1867, Walter Cresson bought $7000 additional bonds of the Susquehanna Canal Company, with funds of the partners or on joint account, thus making $13,000 in all. After’ William’s death he sold $5000 of these bonds. These were sold at 73. The balance, to wit, $8000, he claimed to account for at the same price, by either paying or assuming upon himself certain debts due by the partners. At the time of the hearing these bonds were worth about 75. He has paid one debt of $1000, another of $800, and produced a release from a $4000 creditor discharging the estate of William Cresson.
    In reporting upon the allowance of $30 per week to Walter Cresson, for services, the master, inter alia, said :
    “ There is nothing here which refers to the terms or conditions on which the business was carried on, or the interests which the partners had therein. To be responsive to the bill the answer must reply to something specifically alleged or charged. In this case the first we know of the terms of the saw-manufacturing copartnership is the admission of the defendant, to wit, that the partners there were equal. It will not do for the defendant by an admission of a fact, or by making an allegation to place himself in the position he might occupy had the bill contained an assertion of that fact or made that allegation. The allegation of the bill that the jewelry business was carried on in like manner as the saw-manufacturing business did not refer to the terms of the. copartnership, or to the respective interest therein, but to the partnership itself, and the answer setting up a compensation to Walter Cresson was not responsive, and cannot be received. Nor is the answer responsive as showing an account or appropriation of the assets of the firm to the extent of $30 per week. The bill asks for an account, but an answer showing an appropriation of the firm assets to the payment of a salary to one member of the firm is not an account of the copartnership.
    “ But it is said that as the law, in the absence of an agreement of partnership, implies that the partners are equal, an answer denying this equality and stating the terms of the partnership is responsive to the bill. But this argument loses sight of the law under which the answer may, in certain cases, be evidence. As before remarked, in order to be evidence the answer -must be responsive to a fact alleged or allegation made in the bill. An answer to an implication which the law raises would not be a reply to any fact or allegation in the bill.” The master therefore excluded the charge for salary.
    Exceptions were filed to this report and after argument, the court, Ross, P. J., in ruling upon these exceptions, in an opinion, inter alia, said:
    . “ The next question which presents itself is of the greatest moment to the contending parties. It involves the claim of the defendant to extra compensation, at the rate of $30 per week, during the continuance of the partnership in the jewelry business. It is true beyond all question, that each partner is bound to give his services to the firm without extra compensation, unless there be an express agreement to pay him for his services. This is well settled by authority: Story on Partnership, § 182. This being true, the next question is whether such an agreement existed in this copartnership. To determine this, we must ascertain the terms upon which this firm was established. There were no written articles. All the stipulations and agreements, therefore, are to be grathered from the evidence.
    “ It is earnestly contended that the fact is proved by the answer, which avers that it was understood and agreed that $30 was to be allowed to defendant as extra compensation per week. It is insisted that the answer is responsive to the bill, and that being so it has the weight of two witnesses. To sustain this position, Eaton’s Appeal, 16 P. F. Smith 483, is cited. This case was properly ruled upon the pleadings, and the point decided is fully sustained by the English and American cases; and I feel bound to follow it. It is due to the learned and accurate master to say, that Eaton’s Appeal was cited to him ; and I am without the aid of his views and analysis. Yet acting with the best light I can derive from the authorities, I am reluctantly constrained to receive the answer of the defendant .as responsive to the bill in this particular. I agree with the conclusions of the master as to amounts. I think the account he has stated equitable and just between the parties and most merciful to the defendant, whose varying attitudes are not suggestive of the highest rectitude in his dealings with his brother’s widow. But it is not for this court to disregard the rulings of the court of last resort; and after a careful and even anxious effort to discriminate this case from Eaton’s Appeal and the other cases cited by it or lying in its track, I have failed to be successful.
    “ To determine the question it is necessary to analyze the averments in the bill. The first parargraph avers, that the defendant and plaintiff’s intestate wer.e associated together as ‘partners in business’ for many years, until the death of the latter, on the 14th of February 1874. The second avers, ‘ that the said partners from about the year 1850, until the year 1865, carried on the business of manufacturing saws in the borough of Conshohocken.’ The third alleges, that the decedent was blind, ‘but nevertheless took an active part in the said partnership business, and was able to render and did render, by his skill and judgment therein, efficient personal services,’ &c. The sixth paragraph avers, ‘ that in the year 1867, the parties commenced the jewelry business in the city of Philadelphia, investing therein $12,000 of the funds of the said partnership, and carried the same on in like manner as the said former business, till the decease of the said William Cresson, as aforesaid.’
    “ In paragraph first of plaintiff’s answer, which seems to apply to the first six paragraphs of plaintiff’s bill, it is averred: ‘We then agreed'to enter into a partnership for carrying on said business (jewelry), at first as J. B. Powell & Co., and afterwards under the firm name of Walter Cresson. As William was blind, and could not give any personal attention to the business, it was agreed that I should receive for my services $30 per week, and that the profits remaining after payment of all expenses, including the said payment to myself, should be equally divided. Such salary has been regularly drawn by me.’ In the seventh paragraph of the answer it is further averred: ‘ He was also aware that I was drawing $30 per week, as compensation for my services as manager of the jewelry business, in addition to my share of the profits, and approved of my so doing.’
    “ I have said that the first of the answers is responsive; a partnership is averred. It is averred to have been carried on in like manner as a former business, and it was competent for the defendant to state any difference, and if so, what that difference was.
    “ The rule laid down in Eaton’s Appeal and elaborated in the opinion of Mr. Justice Sharswood, is simply that ‘ whatever constitutes in truth a part of the facts stated in the bill, the defendant has a right and is indeed bound to set out.’ It is equally true, however, as stated by the learned judge in this connection: ‘ But he cannot make himself a witness for himself generally and introduce other (independent ?) facts either in avoidance or defence. It is considered indeed as a test whether as a witness on examination he could be cross-examined as to the matter which he states in anticipation of his defence on a trial at law:’ Hoffman Ch. Rep. 185. Now whether this rule be unwise or wise (I refer to this testing criterion) it is the test adopted by our court of last resort, and we are bound to follow it; after all, the doctrine of stare decisis is the only safe rule for courts, especially those of inferior jurisdiction. But before adopting this as the controlling test, I have patiently examined the authorities, and I think the rule is sustained by unquestioned authority, though so broad an application of it has never been made until Eaton’s Appeal in this state. Its first trace appears in Amb. 589. In 7 Ves. 404, Ld. Eldon ruled what was not responsive, and in so doing declared what would be so considered. The samé thing is true in Thompson v. Lambe, 7 Ves. 587, in which the first case is cited and the same doctrine declared. In 19 Vesey 582, the same doctrine is declared, where the answer was held to be only responsive in part, and the residue being rejected as in confession and avoidance. This is a case of great hardship to the defendant, but Sir William Grant, the Master of the Rolls, draws the line with a steady hand. Other English and American cases might be cited, but they are fully quoted in the principal case (Eaton’s Appeal).
    “ The first trace of this reasoning in our own reports I find in Commonwealth v. Cullen, 1 Harris 143, citing 9 Cranch 160; Clark’s Ex’rs v. Ramsdyk, 2 Johnson’s Ch. Rep. 90; Hart v. Ten Eyck. It next appears in Eberly v. Groff, 9 Harris 256, citing, in addition, Story’s Equity Pr., sect. 849, a; 2 Dan’l. Ch. Pr. 10, 19 ; 1 Howard’s Sup. Ct. Rep. 134. This, case is badly reported, but it seems from the opinion'of the court that the answer was in direct response to the bill. Pusey •v. Wright et ah, 7 Casey 394, is a strong case, fairly sustaining the ruling and test adopted by Eaton’s Appeal. The pleadings in the case are, when carefully read, excellent exhibitions of when an answer may be deemed responsive to the bill. Following the ruling of Chief Justice Parker in Bellows v. Stone, 18 N. H. 465, adopted in Eaton’s Appeal, the late Chief Justice Thompson declares: “ If a contract be set forth and the defendant be called upon to answer it, a denial that it exists, modo et forma, would not be good according to chancery practice; for this is subject to the implication that it existed in some other form. To avoid this, the defendant must state how it existed, and wherein it had no existence. This would be a good traverse:’ 2 Dan’l Ch. Pr. 259; 3 Greenleaf on Ev., sect. 285.
    “ Apply the law thus hastily reviewed, for I have not paused to analyze in this opinion many of the cases I have either cited or examined in its preparation, and the conclusion is inevitable. There is an averment of a partnership carried on as the saw-manufacturing business. A simple denial of this would not be a sufficient answer. The defendant must state how it was carried on; how it differed from the former partnership. He must state how it existed and wherein it had no existence. This he does, and the answer is therefore responsive.
    “ Again, suppose a partnership simply had been averred in the bill: clearly it would be competent for the defendant to admit it, give its terms, whether it was general or limited, when formed, and what were its conditions, for how long it was to continue, and the arrangements for its dissolution and settlement. Under the authorities this cannot, I think be doubted; and if the test as to cross-examination be adopted, it cannot be successfully questioned. Certainly the common-law rule as to what is a proper cross-examination would admit all this, after the existence of a partnership had been established by a witness in chief.
    “ The answer as to the extra compensation is therefore ruled to be responsive, but this is not decisive of this branch of the case, for the answer upon this point is guilty of duplicity.

      “ In paragraph first of the answer, an agreement as part of the original contract of compensation is averred. This, as has been seen, is responsive, because part of the contract. But in paragraph seven of the answer, it is alleged that the decedent ‘ was also aware that I was drawing $80 per week as compensation for my services as manager in the jewelry business, in addition to my share of the profits, and approved of my doing so.’ This is a mere averment of a subsequent license, and not being part of the original contract but something subsequently alleged in avoidance of liability, is not responsive. Now- which is true Y If the former the answer must prevail. If the latter the master was right. Upon the proof as it stands, a chancellor cannot say. An answer possessing the weight which the practice in the equitable forum gives it is to be strictly construed. Where conflicting, contradictory, or evasive, it loses its force. In the last case upon the subject, Smith v. Spencer, New-bold’s Appeal, 2 Weekly Notes of Cases 472, it was ruled ‘ that where a party was permitted to testify, and does testify in compliance with his answer, it will not do to hold that his testimony shall be disregarded and his answer stand wholly unimpeached.’
    “ It would seem to be equally true that where a party is not permitted to testify as in this case, and his' answer conflicts, so that one statement of facts is responsive, and another representation of the same facts contradicts it and is not responsive, the answer so far as it is contradictory ought not to prevail with the force of two witnesses. The case is anomalous ; and I have determined to refer the case again to the master to determine which of the conflicting statements is the truth.”
    The master filed a subsequent report, and concluded, saying: “ I cannot find that there was any agreement between the partners by which the compensation claimed could be established; nor can I find that any license was ever given by William Cresson authorizing the defendant to draw the money claimed.”
    The material facts on which the master based these conclusions will be found in the opinion of this court. The court then confirmed both the original and supplemental report, and made a decree accordingly. From this decree defendant took this appeal, and, inter alia, alleged that the court erred:
    4. In overruling the plea of the Statute of Limitations to all claims for interest collected by defendant at a period more than six years before filing of bill.

      8. In confirming so much of the master’s report as surcharged the defendant with $11,093.10, drawn out by him as compensation for carrying on the jewelry husiness, at the rate of $30 per week, from its commencement until its ending by the death of William Cresson.
    9. In deciding that the answer was conflicting in its statement of the terms of the partnership.

      John G. Johnson, for appellant.
    Did not the answers directly respond to the averments of the bill? We do not contend that matter set up by way of confession and avoidance, can be held responsive; but simply that which is necessary to be stated, in full reply to what has been charged. It is the duty of the defendant, under the equity rules, to answer, not by a simple yes or no, but fully. The bill charged that the jewellery business was carried on “in a similar manner” to that of the saw-manufacturing, which had been conducted upon the terms of an equal division of the receipts. This was an averment as to the terms of the new partnership, and compelled the appellant to set up what they really were. If he had been silent, he would have admitted that the agreement was correctly averred in the bill. The law implies, from the fact of a contract to enter into a partnership, that there was an agreement that nothing should be received by either partner, as compensation for his services. In averring that a partnership was entered into, the complainant averred all that was therein implied, and it was the appellant’s duty to answer her, and to set up what the terms actually were: Hart v. Ten Eyck, 2 Johns. Ch. 89; Eberly v. Groff, 9 Harris 256; Schwarz v. Wendell, 1 Walker’s Ch. (Mich.) 267; Cooper v. Tappan, 9 Wisc. 361; Eaton’s Appeal, 16 P. F. Smith 490.
    The averment in the seventh section of the answer was simply that the main disbursements of the money had been made known to and approved of by William Cresson. Was it no response to the bill to say that $11,000 had been accounted for in this way ? Did it lessen the force of .the averment to say that this had been approved of? It appeared, by this response, that in addition to the contemporaneous agreement, it was known to the decedent until his death, that it was being acted upon, and that he approved of such contract, acting thereunder. There is not in this any inconsistency or contradiction of the former averment of a contemporaneous agreement.
    The matter was not affected by the testimony of Powell, taken under the second reference to the master.

      B. M. Boyer, for appellee.
    If, indeed, the bill had set forth the terms of the partnership, and had called upon the defendant to answer on that point, this case might fall within the scope of the decision in Eaton’s Appeal, 16 P. F. Smith 483. Rut nowhere in this bill are the terms of the original copartnership defined.
    The defendant yvas not called upon to answer as to the conditions of the partnership, nor as to salary, but simply to account. The manner of carrying on a business does not necessarily include the terms of copartnership. The business may be “carried on” in a manner inconsistent with the articles of copartnership, and in no wise disclosing them. In the absence of written articles of copartnership what, in such a case, is to limit the latitude of the defendant’s averments ? An affirmative fact, averred by the answer in avoidance of the averments in the bill, must be proved like any other affirmative averment in pleading: 2 Story’s Equity, sect. 1529; 2 Johns. Chan. 88-90; Vint v. Heirs of King, 2 Am. L. Reg. 747; Naglee’s Estate, 2 P. F. Smith 160; Pusey et al. v. Wright et al., 7 Casey 389.
    The presumption of the law is against the allowance of any salary for the services of a partner, and the averment of an exceptional agreement in this regard must be clearly established by evidence: Story on Partnership, sects. 182, 185; Parsons on Partnership 229. Assuming that the averment as to salary was responsive to the bill, it was contradicted and overthrown by the evidence.
    October 6th 1879.
   Mr. Justice Paxson

delivered the opinion of the court,

_ This was a bill for an account filed against the surviving partner by the widow and administratrix of the deceased partner. The parties were two brothers, Walter Cresson, the appellant, and William Cresson, now deceased. Erom about the year 1850 until 1865, they carried on the business of manufacturing saws at Conshohocken, Montgomery county. This business was discontinued, and about the year 1867, they commenced the jewelry business in the city of Philadelphia. In both places it appears to have been carried on in the name of Walter Cresson. William was blind, and while he paid some attention to the business at Conshohocken, he gave it none whatever in Philadelphia. His visits to the jewelry store were infrequent. The most perfect confidence appears to have existed between the brothers. Walter kept the books, and William evidently had little, if any, knowledge of their contents.

The main contention was whether Walter was entitled, upon the adjustment of their partnership accounts, to a credit of $>30 per week as compensation over and above any share of the profits, for his services in attending to the jewelry business. This question is raised by the pleadings. There appears no written evidence of the partnership or of the terms upon which it was entered into. The bill, after setting forth the partnership in Conshohocken and its termination, avers: “ That in the year 1867 the said partners commenced the jewellery business in the city of Philadelphia, investing therein $12,000 of the funds of said partnership, and carried the same on, in like manner as the said former business, till the decease of the said William Cresson as aforesaid.” To this general allegation of a partnership the appellant answered: “ There were no ‘funds of said partnership’ to be invested in the said jewelry business, for all were exhausted'in the purchases aforesaid. In October 1867, at the request of my brother, and with his approval, I purchased the stock in trade, &c., of the jewelry business, which had been carried on by one John Fries, by assigning to him the bond and mortgage of Joseph Lea & Co., for $12,000, belonging to my brother and myself. We then agreed to enter into a partnership for carrying on said business, at first as J. B. Powell & Co., and afterwards under the.firm name of Walter Cresson. As William "was blind and could not give any personal attention to the business, it was agreed that I should receive for my services $80 per -week, and that the profits remaining after the payment of all expenses, including the said payment to myself, should be equally divided. Said salary has been regularly drawn by me. Neither my brother nor I have ever drawn out of the business any sums on account of profits.” In a subsequent paragraph (7) the defendant further answered: “ I deny that I never accounted to William Cresson for the assets of the partnerships aforesaid. He was ‘thoroughly well aware of the disposition and appropriation that was made of the receipts of the sale of the saw-manufacturing business and property, and approved of such disposition and appropriation. He was also aware that I was drawing $30 per week as compensation for my services as manager of the jewelry business, in addition to my share o.f the profits, and approved of my doing so.” And in a supplemental answmr the defendant further said: “ The agreement between my brother William and myself, by which I was to receive out of the partnership fund before division of profits and losses, the sum of $80 per week as compensation for my services, was contemporaneous with the commencement of the partnership and its operations. My allusion in my answer to my brother’s approval of my drawing of that sum per week was merely to state that in the explanation of our affairs, which from time to time I gave, the deduction of that sum was known and approved by him. I did not mean that such approval was by way of any new agreement, for the agreement was made, as I have stated, at the begining of the partnership operations in the jewelry business.”

The learned master held that the answer was not responsive to the bill; that inasmuch as the bill averred a partnership, without setting out its terms, so much of the answer as sets up the agreement that Walter was to receive a compensation for his services was the assertion of a right affirmatively, in opposition to the plaintiff’s demand, and that the defendant was as much hound to assert it by indifferent testimony as the plaintiff was to sustain his bill. This is the turning point of the case. If the answer is responsive, it must stand until overthrown by the testimony of two witnesses, or of one witness with corroborating circumstances. The court below reversed the master upon this point, and held the answer to be responsive. In this the learned judge was right. The case comes within the principle of Eaton’s Appeal, 16 P. F. Smith 483, where this subject was fully discussed, by the present chief justice, and the authorities referred to. It was attempted, however, to distinguish this case from Eaton’s Appeal, upon the ground that in the latter the interest of the parties in .the partnership was set forth in the bill, and that therefore an averment in the answer of one of the defendants, that he had four-ninths interest instead of three-ninths, as alleged by plaintiffs, was responsive. This is a distinction without a difference. In Eaton’s Appeal the bill charged a partnership between three, and that their interests were equal. Here the bill avers generally a partnership between two. The effect of this averment, if established, is to make them equal partners, for the law presumes that a partnership is for the equal benefit of all concerned, until the contrary appears. So that the legal effect of the bill is the same as if it had charged that the partners were to share the profits equally. Under such circumstances it would be an inequitable rule that would prevent the defendants denying the equality of the partnership, and yet compel him to admit the partnership itself.

While the learned judge held the answer to be responsive, he also ruled that it was guilty of duplicity, because of that portion of paragraph'7, which avers, that the decedent “was also aware that I was drawing $30 per week, as compensation for my services as manager in the jewelry business, in addition to my share of the profits, and approved of my doing sothat this is an averment of a subsequent license, not part of the original contract, but something subsequently alleged in avoidance of liability, and therefore not responsive. In this the learned judge fell into error. The answer avers with sufficient distinctness that the agreement for the additional compensation was a part of the originalmontract of partnership. If any doubt existed upon this point it is removed by the supplemental answer which asserts it unequivocally. If then the agreement for compensation was a part of the original contract, the averment in the answer that the defendant had, from the day of its formation, drawn the amount thereof with the knowledge and approval of the plaintiff, furnishes no room for the allegation that it was setting up a subsequent license to draw the $30 per week; a new contract inconsistent with that already alleged. It is not duplicity to allege that the contract for compensation set up in the answer had been carried out' by the parties.

The answer being responsive and not open to the charge of duplicity, was there sufficient testimony in the case to overcome it ? That is to say, was there the testimony of two witnesses for the plaintiff upon this point, or the testimony of one witness with corroborating circumstances? The master concedes there is no countervailing testimony as to the agreement for compensation, and that it would be conclusive upon the point were the answer entirely consistent. I quote from his report: “ But inasmuch as the answer, while averring an agreement, also avers a license or permission on the part of the now deceased partner, by which the compensation in question was drawn by the defendant in this case, the whole matter has been referred back in order to determine which of these conflicting statements is correct.” The master thereupon proceeded to consider the case and took some additional testimony. As a result he finds that the answer is overcome by the other proofs in the case, and his finding was confirmed by the court below. Herein was error. The finding of the master was without testimony to support it. His report admits, as before stated, that there is “ no countervailing testimony as to the agreement for compensation.” His conclusions are merely deductions from certain facts in the cause, and whether accurate or not, lack the essential aid of another witness. The facts to which the master refers might, in case his deductions from them are correct, be valuable as corroborating circumstances, but as independent proof they are not sufficient. The master deduces his opinion that there was no agreement for compensation as set forth in the answer, from the following: 1. That Walter Cresson was entirely ignorant of the jewelry business, and that as a practical man had to be employed, Walter’s services could not have been worth the large sum demanded for them. 2. That the knowledge of William Cresson’s membership in the firm, and of said alleged agreement between the brothers, was withheld from Mr. Powell, who appears to have been interested in the business for a short period at its commencement; and 3. That Walter Cresson had given instructions to Powell to withhold from William any knowledge of the business in case he asked about it. “ These facts,” says the master, “together with the inconsistency of the answer which has been already referred to, force the conclusion that there was no such agreement ever made as that averred in the answer.” Had the existence of the agreement been denied by a competent witness, the matters upon which the master relies might, if his deductions from the facts are sound, have been sufficient to overcome the answer. But no witness has said there was not such an agreement. That Mr. Powell did not know of it is no more remarkable than is the fact that he did not know that Walter and William were partners.

We are of opinion that the court below erred in confirming so much of the master’s report as surcharged the defendant with $11,093 drawn out by him as compensation for carrying on the jewelry business, at the rate of $30 per week from its commencement till its .ending by the death of William Cresson. This disposes of all that needs discussion in the case. The learned judge properly applied the Statute of Limitations, and his ruling upon other points are free from error.

The decree is reversed at the costs of the appellee, and it is ordered that the record be remitted for further proceedings.


author: Mr. Justice Sterrett

text:
    Lower Allen Township School District versus Shiremanstown School District.
    1. Where a new school district is erected out of an old one the new district is entitled to a pro rata share of the state appropriation for school purposes for the current year.
    2. The object of the Act of April 11th 1862 was to secure a fair and equitable adjustment and division of all property and assets in any manner belonging to a school district at the time a change in the territorial limits thereof go into effect, and the state appropriation is included in su-ch assets.
    June 10th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Woodward, J., absent.
    Error to the Court of Common Pleas of Cumberland county: Of May Term 1879, No. 132.
    This was a case stated, wherein the Shiremanstown School Board were plaintiffs, and the Lower Allen Township School Board were defendants.
    The facts as stated were these : The borough of Shiremanstown was incorporated by a decree of court on November 17th 1874. Before its incorporation a portion of said borough laid in Lower Allen Township, and was included in the school district of that township. Under the provisions of the Act of April 11th 1862, a bill in equity was filed in August 1865 for a division of the property funds between the old and the new districts. This property consisted of school houses, cash in the treasury and a state appropriation of $358.92, due the district for the year ending June 1st 1875. The commissioners to make distribution filed their report August 23d 1875, and found, after valuing the real and personal property, and apportioning both, the sum of $607.82 to be due the old district by the new.' They did not however include in their report the $358.92. It was not returned to them as part of the funds to be distributed, and they had no knowledge of it. It was not in fact actually in the possession of the old district at that time, but was paid to it in September 1875. The Shiremanstown School Board paid to the Lower Allen Township School Board the money due them, less $72.50, the pro rata share of the $358.92, which they claimed to set off against the claim of the commissioners, The latter school board refused to allow the deduction, when this suit was brought.
    The court, Herman, P. J., was of the opinion that the new district was entitled to a pro rata share of said appropriation, and entered judgment for the plaintiff for such share. This action was assigned for error by the defendant, who took this writ.

      H. Newsham, for plaintiff in error.

      Lemuel Todd, for defendant in error.
    June 16th 1879.
   Mr. Justice Sterrett

delivered the opinion of the court,

The borough of Shiremanstown, incorporated by the court in November 1874, became a separate school district, by operation of law, on the first Monday of the following June. The new borough and school district included a small portion of Lower Allen Township school district as it existed before the borough was incorporated. After the commencement of the next school year, in June 1875, proceedings were had under the Act of 1862, for adjustment and division of the school property and funds of the old district between it and the new one, by which it was ascertained that, exclusive of the state appropriation for the last preceding school year, there was due from the latter district to the former, the sum of $607.82; all of which, except $72.50, has since been paid. In September following, the old district received the state appropriation for the school year ending June 1875, amounting to $358.92. On the same basis that the other common property and funds were adjusted, it is admitted that the pro rata share of this sum, payable to that part of the old district included in the borough, would be $72.50. Inasmuch as the state appropriation rightfully belonged to the old district before the separation took effect, but was not returned as part of the common fund, nor in any manner included in the adjustment by which the indebtedness of the new to the old district, above stated, was ascertained, the new district claims to be entitled to its pro rata share thereof.

The case stated substantially embodies the foregoing facts, and the question submitted to the court below was whether the Shiremanstown school district was entitled to a pro rata share of the money thus received from the state. The learned president of the Common Pleas, being of the opinion that it was, entered judgment accordingly for the amount agreed upon. In so doing there can be no question that substantial justice was done. The general state appropriation for school purposes for the current year commencing June 1874 had been made before the borough was incorporated, but under the provision of the school law the distribution thereof among the several school districts of the state would not be made until long thereafter. According to the case stated, Lower Allen school district did not receive the money until September 187 5. Notwithstanding the incorporation of the borough in November 1874, the old school district remained intact for school purposes until the end of the then current school year, and the state appropriation would be distributed as though no change had taken place. The money received was a common fund, belonging to the entire district, including the part embraced within the borough limits. It is admitted that it was not taken into account in the adjustment that was made, and it is difficult to see upon what principle of honesty and fair dealing the old district could claim to retain the whole of it. We take it for granted that' the object of the parties, in presenting the case stated, in the form it is, was to obtain a decision on the merits, without regard to any technical defence that might possibly be interposed. No objection, as to the form of proceeding, is suggested in the case stated. The only question submitted is whether or not the new district is entitled, upon the admitted facts, to a pro rata share of the $358.92, received from the state. The object of the Act of 1862, was to secure a feir and equitable adjustment and division of all property and assets in any manner belonging .to a school district at the time a change in the territorial limits thereof goes into effect. The result reached by the judgment of the court is so manifestly just and equitable that it should not be disturbed on merely technical grounds.

Judgment affirmed.