text:
      Court of Quarter Sessions, Dauphin County,

      September 17th, 1860.
    In the matter of the Hickory Tree Road.
    After viewers liad presented their report at the regular term of court, and after exceptions to it had been filed, a petition for a review presented at an adjourned court is in time. The report of viewers in a road case will not bo set aside because one or them asked the owner of land how much damages he would claim for opening the road through it.
   By the Court.

At November Sessions, 1859, a petition was presented, asking to have viewers appointed to lay out a road between the above-stated points. "Viewers were appointed, who reported to January Term, 1860, which commenced on the 16th of that month. On the 13th, exceptions were filed to the report. On the 13th of February, a rule to take depositions in support of the exceptions was entered. On the 12th of March, a petition for a review was presented and filed. On the 26th of March the exceptions were overruled, and reviewers were about to be appointed, but by consent further action Avas postponed till April adjourned sessions, Avithout piejudice to either party. May 9th, 1869, being the adjourned sessions of April, reAÚewers were appointed, who reported adversely to the road, and exceptions were filed to their report. Two questions are now presented. 1. "Was the petition for a review in time? 2. Are the exceptions as established, sufficient to set aside the report of the reviewers? The regular term of the Quarter Sessions ended on the 20th of January, that is, the first week of the sessions. It has very long been the practice of the courts in this county to dedicate the first week to the trial of criminal cases. All other business in the sessions is postponed till the next week but one, the second being occupied Avith civil suits. All of the courts are then adjourned from week to week, meeting every Monday, until the next regular term. The petition for a review was not presented on the regular week; nor at our customary time for acting on the road business, the third week, but was at an adjourned meeting of the sessions on the 12th of March, and before the exceptions had been decided. We have no doubt that the petition would not have been in time but for the pending exceptions. Although it has been tire practice of this court to regularly and formally confirm road reports at the second term, generally at our argument court, yet no such formal confirmation is necessary. The report is to be confirmed nisi at the term to which it is made, and the width fixed, and it becomes confirmed, and ipso facto a road, if exceptions are not filed, or a petition for a review presented during the next term. That term does not continue by adjournment to the third term, but ends with the regular week of the sessions. For these principles, see Road Case in Bucks County (3 Wh., 105); Ewing’s Mill Boad (8 Casey 282). The court may by rule require the petition for a review to be presented in all cases on the first week of the term, and may refuse the review, if not so presented (3 Casey 69). And the final action of the court may be postponed by exceptions filed (8 Casey 285). We think that if a rule of court is required to debar the right of presenting a petition for a review at an after-time, where exceptions are pending, it carries with it the implication that the right exists independent of the rule, and as this petition was presented at an adjourned term of the sessions, between the regular and the next regular terms, and before the exceptions were disposed of, it is in time. The second exception to the review is not supported by the facts.

It is conceded that one of the viewers made inquiry of a person through whose land the road was proposed to be located, what damages he would claim if it was so made, and the landowner stated a very large sum, some two thousand dollars. The inquiry was publicly made, in presence of all the parties, their counsel, and the other viewers. Is this a good ground for setting aside the report?

We have a special road system in this county, varying from the general law in'several particulars. But three viewers are to be appointed, who, after locating the road, are to endeavor to procure releases from the property-holders, and, on failure, are to assess the' damages. The court afterwards, and before confirmation, determines whether it will subserve the public interests to open the road, taking into view the amount of the damages to be paid, and may fix as a condition that the damages be discharged by the petitioners or others interested. We do not consider that the present -act repeals the general road laws, or changes the duties of the viewers, further than is expressed in terms. They must still lay out the road by the nearest and best route, having in view what will do the least injury to private property, and best subserve the public interest and convenience.

It never was illegal for a viewer to be governed in locating a road, to some extent, by considerations of damage claims, or to say, “I will pass through the land of one man because he will not claim damages, and avoid that of another who will consider himself greatly injured.”

It is very true that under the present law, the road is to be located first, and the application made for the releases afterwards; but we would not consider it illegal for the viewers, before'locating finally, to know if the property-owners would release. The public wants of travel are not to be disregarded on account of the damages to be paid, unless the amount exceeds the general conveniénce; but the injury to private property is an item for careful consideration by the viewers in locating a road, as well as by the court in confirming the location. The amount of damages ashed is not to deter the review, but the extent of the injury which will be done. Where the carnages will be released by the property-owner, the viewers can well believe that the benefit will exceed the injury. Where it is refused, the viewers must then assess the amount of damages the property will sustain, after taking into consideration the benefits to be derived from the road, and in making this estimate, should be governed by their own judgment, without regard to the estimate of the owners, except that they cannot allow more than the owners demand. We see no sufficient reason for setting aside the report of the reviewers.

FCmikel and Fisher, for exceptants.

Mumma a/nd Alrichs, for petitioners.

Affirmed by the Supreme Court (43 Penna. Stat. 139).


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
      Court of Common Pleas, Dauphin County,

      March 4th, 1861.
    The Commonwealth v. Emerson.
    Where a man voted in a particular county, this is sufficient evidence of his residence in that county to allow a commission of lunacy to be issued there.
   By the Court.

The act of Assembly provides that inquests to ascertain if the party is a lunatic or habitual drunkard shall be held in the county in which he resides; and in case he has no residence within the commonwealth, in the county where he can be found — of course found at the commencement of the proceeding. Residence is a mixed question of acts and intentions; and the latter is sometimes inferred from the former, at other times from declarations accompanied with acts. The evidence shows that Mr. Emerson owns a house and farm in Dauphin county, where he undoubtedly made his residence till some time in May last, when he moved to Petersburg, in Perry county, with the avowed purpose of practicing law and schooling his child. He retained four rooms in his house at the time of leaving this county, as also a portion of his goods; but afterwards rented out three of his rooms, retaining a fourth, in which he kept a bed, chairs, and a table. He took rooms in a hotel in Petersburg, where he lodged and had his books, etc. Occasionally through the summer he was back at his farm; sometimes remaining over-night, and. perhaps for a day or two,- but returning to Petersburg.

Herr, for plaintiff.

Jdawn,for defendant.

About September 1st he returned to his farm, the witnesses say, to look after his crops; and seems from the evidence to have made it his general home until December 9th, when he went to a public house in the same township, where he appears to have boarded until December 25th, occasionally going to Petersburg. This proceeding was commenced December 17th. Mr. Emerson voted at the general election, October 9th, in the township where his house was situated, and did not vote anywhere at the November election.

This statement of facts we consider shows decidedly that his residence was in Dauphin county when the petition was presented. Voting at the election in October unequivocally shows his own opinion and intention, as he could not lawfully vote at any other place than where he resided. We have no right to presume that he committed a fraud, and he is estopped from averring it. Had the proceeding been commenced in Perry county, this same evidence (although less conclusive for than against the party) would have caused the proceedings to be set aside. Although some of the witnesses express an opinion that Emerson resided in Petersburg, and some of those called by the petitioner gave such opinion before the inquest, yet that is to have little weight with us. We consider that the fact of owning real estate here, retaining his rooms on renting it, returning frequently, and staying almost permanently from September 1st to December 9th, on his own farm, and even then not returning to Petersburg, but going to board at another house in the neighborhood, would be strong evidence of residence; but when you add to that the conclusive act of voting at the election, it is overwhelming. If not resident in this county, he had none in the commonwealth, and in that case the inquest would be properly taken here, where he was found. The motion to set aside the requisition is overruled; but as a traverse has been filed, we shall make no further order, unless it is shown by testimony to be necessary for the safety of the estate.


text:
      Court of Common Pleas, Dauphin County,

      April 8th, 1861.
    King v. Shoemaker.
    When property is assigned to a person upon his promising the assignor that he will pay all his debts, such promise is binding though not in writing, as it does not come within the statute of frauds. Any creditor may bring suit against the promiser, although the promise was not made to him, and such action is a sufficient acceptance of it. The original debtor need not be discharged.
   By the Court.

The specical verdict in this case finds, in substance, that Harper & Reese owed King $130.59 for goods sold. That they also owed Shoemaker $485, for which he held their judgment. They owned property and effects, including some book accounts, amounting in value to $1885,'which they assigned to Shoemaker for the nominal consideration of $1500 paid, but for the real consideration of the debt aforesaid, and the promise of Shoemaker to pay all the debts they owed, including that to the plaintiff, but no debts were specified. They were supposed to be, and were represented as amounting to $500 or $600, but the actual amount was found to be $1315. The only evidence of King agreeing in terms to accept the promise is implied from bringing the suit, which is found to be an acceptance, and that he was informed of Shoemaker’s agreement to pay the debt soon after it was made. On the trial King released Harper, in order to render him a competent witness.

The case presents a number of important legal questions. And in the first place, we must premise that the parties to the bill of sale intended, at the time of its execution, that all of the debts of Harper & Reese should be paid. If it was executed either to protect the effects from creditors or give a false color to the assignment, it was not only fraudulent and void as to the creditors, but a highly criminal offence in the party conveying and the party receiving — one for which both could be heavily fined and imprisoned. Inserting a consideration of $1500 in the bill of sale, when but $485 was paid, is giving it a false color within the act of 1842, unless it was part of the contract to pay all the debts of the firm, and was intended at the time by both parties to be carried into effect. We must, therefore, out of charity to the present defendant, presume that when he accepted the bill of sale and promised to pay the debts, he intended that no creditor should go unsatisfied and no debt remain undischarged. Is there any legal reason why Shoemaker should not comply with his contract ?

It is urged that the debts were represented to amount to only $500 or $600, whereas they are over $1300. Suppose Shoemaker had paid out $600, and an unsatisfied creditor had obtained a judgment-against Harper & Reese, levied on what was formerly their goods in the hands of Shoemaker, would the creditor not have defeated his title by proving the colorable character of the bill of sale, ostensibly $1500, in reality $485, and the goods actually worth over $1800 ? A man who is largely indebted cannot be permitted to sell his properly to any one at a greatly undervalue who is cognizant of the fact.

Equity could grant no relief in a case like this, when the purchaser obtained property worth more than all he could be obliged to pay for it in any event, merely because he did not get qxiite so good a bargain as he expected. He got the articles at less than their value, even if obliged to pay all the debts owed by Harper & Reese, and if dissatisfied with his bargain should have restored the goods to their former owners on discovering the mistake, where they would have been subject to seizure by their creditors.

We are well satisfied that there can be no deduction on account of the alleged failure of consideration, either at law or in equity, and the next question is, can the plaintiff sustain his action? Three objections are interposed: First, the want of privity, there being no promise to the plaintiff. Second, the uncertainty of the evidence, as no particular debt was named, no amount fixed, but the promise was to pay all the debts of the firm generally; and third, the promise is void by the statute of frauds and peijuries.

If one man give money to another to pay over to a third, there can be no doubt of the ability of the latter to support an action for money had and received for his use.

If goods are sold by A. to B., who promises A., to pay a debt he owes to C., the latter can maintain an action on such promise.

Where a promise is made to one person for the benefit of a third, that person can sue in his own name. 2 Lev. 210; 1 Boss. & Pull. 101, note C.; 3 Boss. & Pull. 149, in note; 1 Johns. Rep. 139; 10 Johns. 412; 15 Johns. 425; 18 Johns. 12; 2 Denio, 45; 4 Cowan, 432, affirmed in error in 9 Cowan, 639. See also Browne on the Stat. of Frauds, p. 185.

It is held in Massachusetts that where a promise is made to one for the benefit of another, he for whose benefit it is made may bring an action for the breach. 10 Mass. 290; 3 Pick. 91; 17 Mass. 404. And this case further decides that bringing suit is sufficient evidence of the creditor having accepted the promise.

The point is also ruled in Hind v. Holdship, 2 Watts, 104, which was on a similar consideration, and no more definite than the present, the defendant merely declaring, at the time of receiving the assignment of the debtor’s goods, “ the hands shall be paid at any rate.” Plaintiff showed he was one of the hands, and it was held that he could recover. This case, though sometimes doubted, we consider sound law, and founded on general policy. The action of assumpsit being highly beneficial and equitable in its nature, should be liberally supported. This case, we conceive, rules both the first and second points of objection in favor of the plaintiff. See also 17 S. & Rawle, 268; 1 Rol. Abt. 32, pl. 13; Ib. 31, p. 35; Cro. Jac. 667.

We have been most liberal in supporting actions of assumpsit in Pennsylvania, to enable creditors to reach funds in the hands of others, to which the creditors have an equitable right. Aycinena v. Peries, 6 W. & S. 248; Matthews v. Stephenson, 6 Barr, 496.

The most important and difficult point in this case arises on the statute of frauds and perjuries, and as that portion of the act is comparatively new in Pennsylvania, we have not the advantage of a judicial construction by our own courts, and must, therefore, look to the decisions in England and our sister States, where it has long prevailed, for our guidance; for it is fair to presume that the legislature, in adopting the statute, did it with a view to the settled meaning of its words, and their application to particular facts, as established by the judiciary. The act declares that “no defendant shall be charged upon any special promise to answer for the debt or default of another,” without a memorandum in writing, signed, etc.; and the first question presented by this special verdict is, was this a promise to answer lor the debt or default of another, or did the promiser, on account of the consideration paid him, agree to make it his own debt? Our difficulty in determining as to whether the promise does or does not come within the statute, arises not from the paucity or mcagreness of judicial decisions, but from its overflowing abundance and great contradiction. We must, in this conflict of authority, endeavor to select that which will best effectuate the intention of the legislature, and secure justice between man and man, by such general rules as will tend to prevent both fraud and peijury.

Roberts, in his Treatise on the Statute of Frauds, at p. 232, says: “In regard to those promises founded on the liability of a third person, that to constitute them such as are necessary to be committed to writing, the consideration should appear to have immediate respect to the liability of the person promised for. If it spring out of any new transaction, or move to the party promising upon some fresh and substantive personal concern to himself, the statute does not attach on such promise.” Again, on the same page, he says: “If, therefore, the promise is founded upon a fresh, distinct consideration, moving to the party promising, it seems a perfectly established doctrine upon all the cases, that the statute does not extend to it.”

That doctrine, we apprehend, must be taken with this qualification, that where there is a promise made to the original creditor, even for a new consideration moving from him, it is merely collateral to the former debt, and cannot be enforced, especially where the former obligation is not discharged. But where made to the debtor himself, for a consideration received from him, it is a new contract, and need not be in writing. It stands both in consideration and promise independent of the original contract, is valid as between the parties to it, and inures to the use of the creditor, because the money or goods are received for him. Almost the only doubts which can be raised in such case is as to which party can sue, some of the cases holding that when the action is brought by the original creditor it is treated as a collateral promise, but when by the debtor it is not; others that a suit can be maintained by either. In Eastwood v. Kenyon, 11 Ad. & Ell. 438, Lord Denman says: “If the promise had been made to the debtor, doubtless the statute .would have applied; but upon consideration we are of opinion that it applies only to promises made to the person to whom the other is answerable.” In Tomlin v. Gilld, Ambler, 330, on a bill in chancery against a person who had promised, in consideration that he should be permitted to take out letters of administration on the estate of a decedent, that he would pay all the simple contract debts, Lord Hardwick says: “The modern determinations have made a distinction between a promise to pay the original debt, on the fact of the original contract, and where there is a new consideration.” He held that this was a new consideration, proceeding from the widow of the deceased, who agreed for tlfe benefit of the creditors, and the bill was by them. The promise was general to pay all the simple contract debts. In Mes. & Welsby, 561, 570, it is said: “The statute applies only to a promise to the person to whom another is indebted, or is to become so; it must be to answer for the default of the other towards the promisee.”

When there is a new promise, for a consideration which the promisor did not have before, and could not have had but for the promise, it is binding. 1 Parsons on Contracts, pp. 497, 498, and 499, and note; vol. ii, pp. 304, 305, and 306, and note.

To come to a few of the decisions in our sister States. In New York there had been conflicting decisions for a series of years; some holding that so long as the original debt remained in force, the promise was collateral and could not be enforced; others that an action would lie by the debtor, whose obligation was agreed for value to be discharged, but not by the creditor; others, again, the converse of both. For those see 4 Johns. P. 222; 7 Idem, 463; 3 Idem, 210; 8 Idem, 376; 10 Idem, 412; 15 Idem, 425; 18 Idem, 12.

In Farley v. Cleveland, 4 Cowan, 432, it was decided that “where the promise to pay the debt of a third person arises out of some new consideration moving to the promisor, either from the promisee or the original debtor, such promise is not within the statute of frauds, though the original debt still subsists, and remains entirely unaffected by the new agreement.” That case was precisely analogous to the present in several particulars. M. owed F. a note of $100, and M. gave to C. hay to the value of $250, in consideration of which C. promised to pay his note to F. The suit was by F. against C., and although the debt of M. continued in force, and there was no promise in writing, and no verbal promise made to F., yet he could maintain the action; and recover on the promise. In the opinion, Chief Justice Savage carefully reviews most of the English and American cases; and the decision is unanimously affirmed in the Court of Errors in 9 Cowan, 639.

At a later period the question again arose in Barker v. Buck-land, 2 Denio, 45. There B., being indebted to the plaintiff, sold property to the defendant, who agreed to pay the price of it to the plaintiff on account of his demand against B.: held, that the plaintiff might maintain an action, and the promise need not be in writing under the statute. The judge says, at p. 60, if the promise is made to the creditor to pay the debt due him by a third person, it is void by the statute; but a promise to the debtor for value to pay his debt to a third person need not be in writing, and the creditor can sue and recover on the promise.

The statute of frauds relates to promises made to the person to whom the debt is due, or to become due, and not to contracts made with tire debtor himself to pay his debt or furnish him the means of paying it (25 Wend. 243, 247). In the Court of Errors see also Eastwood v. Kenyon, 4; London Jurist, 1081.

And a verbal promise for value to the debtor to pay his debt due to a third person is binding, although the debt remains in full force (13 Wend. 115, Court of Errors; 10 Johns. 412; 15 Johns. 425; 18 Johns. 12). Lippencot v. Ashfield, 4 Sanford, 611, goes still further. Cashman was indebted to Lippencot. Ashfield promised L. that in consideration he had received property from Cashman, if he, L., would forbear to sue C. for one year, he would sell the property in his hands and pay the debt, and guaranteed that it should bring sufficient for the purpose; and held binding, and not within the statute. The judge says, at p. 616, suppose the promise had been directly to the debtor, could there be a question as to its sufficiency and binding obligation? Why shall not the creditor be permitted to sue on it and recover when made directly to himself? We might have our doubts as to some parts of this case; but the following in the Court of Appeals seems to be better founded on legal principles (Brown v. Curtis, 2 Comstock, 229). “The party promising does not undertake to pay the debt of another, but to pay his own debt in a particular w'ay. He undertakes, for his own benefit and for value received by himself, to pay the debt of another in discharge of his own, and it does not come within the statute.” The case cites with approbation 4 Hill, 178, which decides “that wherever it is a new undertaking for value between the parties, and the promise is made to the debtor, it does not come within the statute.” The question may probably be considered at rest in New York.

There have been many cases in Connecticut, but they seem to have settled down to this: The clause in the statute was intended to apply only to promises made to the person to whonp another is answerable. Therefore, a promise to A. to pay certain debts which he owed his creditors, being a promise to him and not to them, does not come within the provisions of the statute (22 Conn. 317).

It is decided in 21 Maine, 410: “ If a person promise, in consideration of funds placed in his hands by the debtor, to pay his debt, it is binding;” and there the promise was made to both the creditor and debtor. So also in New Hampshire (10 New Hamp. K. 32).

If the promise spring from a new consideration, it is held binding in New Jersey (1 Spencer, 337, cites 4 Cowan, 432; 5 Wend. 235).

Where the promise is in the nature of a new undertaking for value, it is held binding in Indiana (6 Blackford, 367).

In North Carolina it is decided that the original debtor must be discharged, else the promise is collateral. But it is otherwise if the party sued received property in trust to pay the debt (13 Iredel, 86).

The general principle of the New York cases appears to have been adopted by the courts of Massachusetts for a considerable period, excepting that it was held that the promise made to the creditor, even for a new consideration,' was invalid unless evidenced by a writing. We shall not pretend to examine all the cases there decided, but come directly to Curtis v. Brown (5 Cush. 488), which is precisely parallel with our case in every particular. One Coffin owed Curtis, and agreed with Brown for a full consideration paid him that he should pay Curtis, which was made known to the latter, and he evidenced his assent by bringing suit; and it was held that the promise came within the statute of frauds, and was not binding on Brown. Chief Justice Shaw refers to some of the English and Massachusetts decisions, and says that where the original debt still subsists the promise to pay it must be in writing. He refers to several of their own cases, which scarcely sustain his general position, and also says that the only English cases where such a promise has been held good was where the creditor, in consequence thereof, had relinquished some lien or other right. In this, we think, he is in error; for few, if any, of the late English cases are put on that ground, but on the fact that tire new promise is not made to the creditor, but to the debtor and the consideration paid by him. At an after time the same judge, in Alger v. Scoville (1 Gray, 291) appears to us to hold an entirely different doctrine, and to approve of the English and New York cases, which decide that the promise to the debtor to pay his debts for a consideration received of him is valid, though not in writing; and he cites Avith approbation Farley v. Cleveland (4 Cowan, 432), which in every'particular is the same in principle as Curtis v. Brown (5 Cush. 488), which is also approved.

Lamberton and Mumma, for plaintiff.

LCunlcel, for defendant.

The cases of Farley v. Cleveland and Barker v. Burkland (2 Denio, 45) are our case in all its parts and rules it precisely. It also comes within the third class of cases mentioned by Kent, C. J. (8 Johns. 39). ■“’When the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the neAV contracting parties.”

We consider that the weight of authority is with the New York decisions, and shall adopt them for our guidance in this case, and they rule the two material points in favor of the plaintiff, — that he can avail himself of the promise made to his debtor to pay his debt, and such promise, even when not reduced to writing, is valid under the statute of frauds.

A release was executed by King to Harper on the trial of the cause, in order to render him a competent witness. Does that discharge the liability of Shoemaker?

The Avriting was certainly not intended to have that effect, as the design of the releaser was to look to Shoemaker on his new promise, he having, by the receipt of all the. property of Harper & Reese, rendered the claim against them unavailing. Where a party has a right to look to either of two several obligors, bound by different and distinct contracts for the payment of his debt, the release of one will not discharge the other, especially if that other is the one who, in equity, ought to pay, and could in no event be entitled to subrogation or reimbursement, in AA’bole or in part. We do not consider the plaintiff barred from recovering by the release, and shall therefore give judgment in his favor on the special verdict.

Note. — This case was reversed in the Supreme Court. See Shoemaker v. King (4 Wright, 107). But, with all due deference to that august tribunal, we think erroneously, to judge from, their later decisions, as well as those of most of the other States and the English courts. In Sloudt v. iline, 9 Wright, 30, money was placed in a man’s hands, under a promise on his part to pay a debt due by the person furnishing it to a third person. The latter was permitted to sue and recover his debt from the person so receiving the money— the promise Avas to pay his OAvn debt for the new consideration — and yet the original debt remained. The creditor could have sued either. Clymer v. De Young (4 P. F. 8.118) was precisely like this case. A stock of goods was given to Clymer on his promise to pay the debt of Hunter to De Young, and held not within the statute. There was a new consideration viewed by Clymer, and therefore the promise was to pay his oto debt, yet the original obligation continued in full force. See also the opinion of Judge Strong in Mawlef). Backnel (14 Wright, at p. 51-52), and that of Judge Woodward, in Taylor v. Preston (29 P. F. S. 436), and many others might be cited to the same effect decided in this State since Shoemaker v. King. They and the cases in the other States go on the principle that for a new consideration the promisor agrees to pay what has become his own debt, and in very nearly all of them there was no discharge of the original obligation, but the creditor could have sued his original debtor or the subsequent pr


text:
      Court of Common Pleas, Dauphin County,

      March 3d, 1862.
    In the matter of Denkel’s Estate.
    The claims of mechanics or materialmen take precedence from the commencement of the building against all other claims, and share ratably among themselves.
    A mechanic or materialman need only show the person in possession of the property against which the lien was filed; the burden of proof then rests upon a party disputing the validity of the lien to disprove his title.
    A mechanic’s lien that only describes the property as a certain frame building, gives the size of the house, and the township and county in which it is situated, and also that the work was done in the erection of the said house and its appurtenances, is fatally defective.
    Where sale of property has been made by the sheriff, and the proceeds brought into court for distribution, and referred to an auditor, each person claiming a lien is permitted to controvert the validity of all other liens. This should be done before the auditor, not by a motion .to strike off the lien or by demurrer.
    The claims of mechanics and materialmen are not evidence of a debt, but merely of a claim, and the amount must be made out by proof.
    (Librandt et al. v. Eberly, 12 C. 347, distinguished.)
   By the Court.

Numerous exceptions have been filed to the auditor’s report in this case, only one of which is in our. opinion sustained.

The auditor has preferred the claims of the mechanics and materialmen to the judgment of Henry Shope v. John Denkel, entered .on the 4th day of June, 1860, on a bond dated April 10th of the same year. The precise time the building was commenced, against which these liens are filed, is not stated; it is an important matter, susceptible of proof, and should have been established; but sufficient is shown to convince us that it was prior to' the 4th of June, 1860, the date of Sliope’s judgment, and if so, those liens have the preference. All the mechanics’ liens commence at the date of the first stroke of the axe or spade used in making the house, without regard to the time of their being filed, or of the doing of the work, or furnishing materials. The man who does the last of the painting or plumbing comes in pari _possw with him who built the foundation wall. All take precedence from the commencement of the building against all other claims, and must share ratably amongst themselves. It seems that John Wagner’s bill for carpenter work was made out and dated on the 2d day of June, 1860, and shows 32J days’ work done at the house before that time, whilst Edward Stover’s bill of lumber furnished commences on the 25th of January, 1860, and terminates on the 29th day of May of the same year, both prior in time to Shope’s judgment. It is said, however, that Denkel had not the fee simple in the land when this work was commenced, but Shope held the legal title — Denkel holding an article for its purchase— and the judgment was given for a balance of purchase-money. Although we have but little evidence of this fact in the auditor’s report, yet it seems to have been conceded. That, however, gives no precedence to this over other claims, unless it appeared that the legal title was withheld until the day the judgment was entered, so as to make that and the delivery of the deed simultaneous acts. The burden of proof rested on Shope, first to show his article, and establish that the person in possession had but an equity, and nest that he delivered the deed and entered the judgment on the same day. He seems to have taken it for granted that the mechanics and materialmen must prove title in Denkel, but we think that on showing him in possession of the land, and the building commenced under his direction, his title will be presumed to be good until something is established to shake it. Here were liens overruling Shope’s judgment, and if he wished to establish anything peculiar, which would give him an interest antecedent to the entry of his judgment, the burden of proof rested on him.

The lien of Stover for materials, amounting to $160.83, with the legal interest thereon, is unquestionably regular, and was properly allowed by the auditor as the first lien; but that entered in favor of Wagner for his labor is defective, and must be stricken out of the claims. The paper filed contains no other description of the property against which the mechanic claims a lien than that certain two-story frame building (house) situate in Londonderry township, in the county of Lauphin, being twenty-two by twenty-four feet deep, two stories high, and the lot or piece of ground and curtilage appurtenant to said building.” This is insufficient in not giving some more definite description of the location of the property. There are, perhaps, more than'one hundred dwelling-houses in that township to which this description would equally apply. What -would be thought of a lien describing the building as a three-story brick house in a certain ward in the city of Philadelphia. Every one would pronounce it most vague and uncertain, furnishing no notice of the claim. It is quite as indefinite as that condemned in Washburn v. Russell (1 Barr, 499), which described the building as “ a double saw-mill on the waters of the Clarion river, situated on the east side of the river, in Clarion county.”

This, in our opinion, is not the only fatal defect. It is claimed that a lien exists for carpenter work done “ for and about the erection and construction of said building and appurtenances within six months last past.” These are almost the very words used in the case of Barclay’s Appeal (1 Harris, 495), which the court decided was fatally defective. Chief Justice Gibson says, an appurtenance may be a yard, an alley, a cistern, a conduit-pipe, an ice-house, a smoke-house, a privy, or stable, or other outhouse distinct from the principal building mentioned in the written claim, and consequently not within the purview of the lien laws.” This case is recognized as sound in Singerly v. Cawley (2 Casey, 248), where the lien was saved so far as regards that expression by treating it as surplusage, and a mere failure to strike out a portion of the printed description, the part in writing being correct.

But it is said that these formal objections to mechanics’ liens must be raised by demurrer, on a motion to strike them off, and 12 Casey, 347, is cited for that position. That case came before the court on the plea of payment, which admits the claim to be good, and properly set forth in the sci. fa.; of course the party will not be permitted to question it against his own admission of record. But where a sale of property has been made by the sheriff, and the proceeds brought into court for distribution, and referred to an auditor, each person claiming a lien is permitted to controvert the validity of all other liens. Those filed by mechanics and materialmen are not even evidence of a debt, but only of a claim, the amount of which must be made out by the proof. Notice is given for all the parties in interest to come forward and be heard, and then for the first time have they an opportunity of making their objections. If the claim is not filed in proper form, it is rejected by the auditor, as not being a lien. If no debt is established, it is thrown out in like manner, and if allowed or rejected, the whole case comes before the court on exceptions. Such has been the settled practice of Pennsylvania, and we can see no advantage from changing it, but the reverse. If motions must be made in court to strike off the liens, the action of the auditor will have to be suspended until those motions are disposed of, and instead of having the whole subject brought up at once on the report, it will have to be considered at various times, as every creditor has a right to make his objection to the claim of every other creditor. This can rarely be done before the appointment of the auditor, as that takes place ex parte, on the sheriff bringing the money into court, and there is rarely any notice given of the intended application, certainly no notice ever published, yet full notice is given to the auditor of the time of his action. In very many cases the lien creditors do not know that a sale is about to take place, or has taken place on a judgment, whilst the judgment creditors are unaware of the amount due on the mechanics’ lien. When a scire facias issues, which does not occur one time in five, it is the proper course to require the defendant to plead the defect in the lien, and not take issue on the plea of non-assumpsit, and then set up that which might have avoided a trial. The principle applies solely to a contest between the parties to the record, whilst before the auditors it arises between those who have a common debtor, but no connection between the creditors. There are more than twenty cases reported in our books where the objection to the lien was raised before the auditor, and no inconvenience has hitherto been felt from that course of practice, nor would any benefit accrue from the one indicated, as in every case the respective creditors would apply to the court to strike off each other’s claims; neither time, nor the sheriff’s sale, could cure that which was radically defective, and neither debtor nor creditor could be considered as having a day in court until an attempt was made to enforce the lien by seire facias, or demand money on it arising from a sheriff’s sale.

If the Supreme Court wishes to benefit the mechanic and materialmen, they should do it by overruling mere technical objections, such as we are obliged to sustain under the present decisions as to the house and appwrtenances. But the want of some reasonable description of the premises is not of that character. It is a matter of grave substance, which might most injuriously affect purchasers, mortgagees, or judgment creditors.

The decision of the auditor appropriating a portion of the money to the claim of John Wagner, is set aside, and all of the money, after discharging the lien of Edward Stovers, is appropriated to the judgment of Henry Shope v. John Denkel, and with that correction the report is confirmed, and the money ordered to be paid out accordingly.


text:
      Court of Common Pleas, Dauphin County,

      June 2d, 1862.
    Hershey v. Weiting.
    Where a person confessed a judgment to another for the purpose of delaying the creditors of the former in the collection of their debts, a court of equity, on the application of the debtor, -will not set aside such judgment, although it tvas obtained by misrepresentation and fraud, and the party confessing it was the mother-in-law of the party to whom it was given.
   By the Court.

If this case had been brought before the court by a bill filed on behalf of Mrs. Hershey’s creditors, it would have presented no difficulties whatever. That the design of both parties in confessing the judgment, releasing the dower, and assigning the bank stock, was to delay and hinder, if not defraud, the creditors of Mrs. Hershey, is self-evident, notwithstanding the denial of both parties. Although the object is to keep the fraudulent intention in the background, and present nothing but the equity of the respective parties, yet the court cannot fail to see in the evidence that the moving motive of the whole transaction, on the part of the plaintiff, was to prevent an immediate sacrifice of her property by the banks, to which she was indebted; and that the defendant operated on her fears in that particular for the double purpose of defrauding both the plaintiff and her creditors. It is by no means difficult to discover that the defendant concocted the whole scheme of dishonesty, by setting up á pretended claim against the plaintiff to a sufficient amount to cover all, or nearly all, that she was worth, making use of the influence of his situation as a son-in-law, his knowledge of business, and her ignorance of the power of her creditors, to induce her to execute the writings. But she cannot claim to have been entirely innocent. She feared that the law gave the banks power to proceed against her property without delay, and expected it to be sacrificed by an immediate sale, and by giving Mr. Weiting the preference, the loss would be obviated, the creditors delayed, the debts eventually discharged, and all of her claims restored.

We do not believe that Mrs. Hershey intended to defraud any one, but the statute of 13 Elizabeth is equally severe on all transactions designed to delay or hinder, as on those intended to defraud creditors. She knew that she did not owe Weiting, that he had no legal or just claim upon her; and she knew that she did owe others, who were to be kept at bay for the present, at least. The bill itself shows, in its language, that she had been led to believe that the creditors would push their claims immediately; and that banks were endowed with some summary method of proceeding; and the eighth, fourteenth, and twenty-third interrogatories clearly indicate that Weiting had received the judgment, release, and transfer, to prevent the creditors from seizing the plaintiff’s property. Although in morals there may be an immeasurable distance between the guilt of these parties, yet in law there is none. The person who planned and concocted the scheme stands on the same platform with one who lent it an almost passive acquiescence, and the intellect of each must be measured by no other standard than a knowledge of right from wrong, or the capacity to transact business. The writings asked to be set aside and revoked all transfer legal rights, and are executed contracts. If executory we would not enforce their execution. Ex turpi causé non oritur actio is a legal maxim. But it is equally settled that, if the contract is already executed, it cannot be set aside on account of its illegality or immorality, for the maxim is, “ in pari delicto melior est conditio possidentis or dcfendentis.” The court will not lend its aid to assist either party. If the one has a judgment, the court will not relieve against it; if an assignment, the assignee will hold the article assigned; and if a release, it may be set up to avoid future payment; and the party giving either cannot avoid it by showing his or her own turpitude. Every such transaction is void as to the creditors intended to be defrauded, but binding between the parties.

The position was taken before the master, on the hearing, and sustained by him, and has also been assumed in court, that as ■ Mrs. Hershey stood in a confidental relation towards Mr. Weiting, and the latter became her adviser, he would not be permitted to gain any advantage over her in a bargain, but that she would be relieved in equity against ail unjust or oppressive contract. The position is unquestionably sound: 'wherever a confidential relation exists, or is assumed, the confidence must not be abused. We find that bargains between those who stand in the relation of parent and child, attorney and client, physician and patient, pastor and parishioner, trustee and cestui que trust, and in short almost all the confidential or dependent relations in life, are looked upon with distrust in courts of equity, and we consider this one of those relations, a son-in-law with his wife’s mother. It is said that it is only where the parent has an advantageous bargain over the child that equity will relieve. The position is not tenable, for whether the aged and feeble parent reposes confidence in the active business son of middle age, or the young and. inexperienced son in the more experienced and business-trained father, equal good faith is demanded in the dealings between them, neither is permitted to take advantage of, or overreach the other; and this doctrine we would apply to the transactions between a middle-aged, active, and energetic son-in-law, and an aged, feeble, and distressed mother-in-law, who looked to him for honest counsel and advice in her almost overwhelming troubles. If no other difficulties presented themselves we would agree with the master in rescinding and revoking these unreasonable and overreaching contracts, by which this aged lady has been swindled and defrauded out of all her worldly substance.

After a careful examination of all the evidence, we are of the opinion that there was no debt whatever due, either in law or equity, by Mrs. Hershey to Mr.'Weiting and wife, at the time these writings were drawn. It is very doubtful whether any ever was due. From the testimony of Mr. Prestle, it appears that over thirty years ago, when Mrs. Hershey lent him the money, she explained that it was a legacy from, her father’s estate; that her husband would not have or use it, and after his death it still remained in the house. We are satisfied that she took it as her own, with the consent of the executors of her husband, and under such circumstances the law would not require her to repay it. The husband had never reduced it into possession, which is a mixed question of act and intention.

We are also satisfied that Mrs. Hershey received but one thousand dollars, not two thousand, as claimed, and the bond given by Kendig and Prestle was for that money. Neither recollects of paying more than the one thousand dollars. Mr. Kendig thinks that the bond was given in Hershey’s lifetime, but in that he could easily be mistaken. All the witnesses agree that Weiting never claimed but one thousand until this demand was set up, and it is very evident that this was done, as he stated to Judge Nisley, “to put a face on the transaction.” Besides, it appears pretty clearly, that all claim to the money was given up by Weiting in 1847, in consideration of the release of dower, and although there may have been no valid claim of dower in the land, yet it was perhaps quite as good as Weiting’s claim to the money. In addition, Mr. Weiting afterwards recovered nearly two thousand dollars from the representative of Hershey, one-third of which belonged to the widow, and although she declined taking it, as money gained at law, yet her creditors might, with great plausibility, insist that she should receive what was legally her own, before paying to Weiting, to their prejudice, what was not legally his. We are satisfied, from all the evidence, that this claim of Weiting was a mere “trumped up” affair, presented for the purpose of covering Mrs. Hershey’s property from her creditors, and that the implied admissions from her silence, and her statements made when the writings were executed, was part of the scheme of delusion concocted by Weiting. This is still further evidenced by the injunctions of secrecy on the witnesses, and the efforts to prevent Mrs. Hershey’s friends, to whom she was accustomed to look for advice, as well as her creditors, from knowing of the transaction. This case presents a single new point: can a court of equity, which has ample ground presented to it for rescinding an executed contract on account of fraud and abuse of confidence, do so when satisfied from the whole case that the object of the writings was to delay and hinder creditors in the collection of their just debts ? Can the court overlook the statute and its effect on the act of the parties, and consider the equity alone? I am of the opinion that it cannot, and although the equity would otherwise be sufficient to justify a rescission of the contract, yet the effect of the statute must be primarily considered, and that makes the transaction void as to the party intended to be defrauded or delayed, yet leaves it binding between the parties. We cannot rescind these writings for any equitable reason, when it clearly appears that the object of executing them was to delay or hinder creditors. Even independent of the statute, a contract infected with actual fraud against a third person, not a creditor, will be enforced in equity between those who intended to perpetrate the fraud (Sherk v. Endress, 3 W. &. S. 256). If the statute was out of the way, or the manifest object of the writings could be overlooked, we should not hesitate a moment to rescind all of them, for the reasons already given.

Lamberton and Etter, for plaintiff.

Kwnlcel and Simonton, for defendant.

It is urged, however, that these are not debts of Mrs. Hershey, that she is a mere surety, and they are not her creditors. There is no such distinction known to the law, and a mere accommodation indorser of such a note was held to come within the act, even before its dishonor (Hamet v. Dundass et al., 4 Barr, 178).

We feel ourselves constrained by the law of the land to dismiss this bill at the cost of the complainant, but shall not allow the respondent his costs, as Ave consider him the principal perpetrator of the fraud.

Should the creditors hereafter choose to investigate the transaction, they can do so by their bill for that purpose.

Affirmed by the Supreme Court (14 Wr. 240).


text:
      Court of Common Pleas, Dauphin County,

      June 2d, 1862.
    Fleck et al. v. The County of Dauphin.
    A county is liable to pay tlie costs of arresting and committing vagrants or drunk and disorderly persons, discharged from the county prison, who are unable to pay them. An officer cannot charge mileage for taking a person arrested to the office of a magistrate and from thence to the jail, when the distance is less than one mile.
   By the Court.

The case, as stated, presents nothing definite for the decision of the court as to the amounts due to the plaintiffs, if anything; but certain bills, showing the nature and character of the claims, accompany the case, but are not made part of it. It is understood that, on the court deciding certain abstract principles, a correct settlement can be made by the counsel in the cause. This we do for their accommodation; but the course pursued in this particular is not to be brought into precedent hereafter. The first question raised relates to the liability of the county to pay the costs for arresting and committing vagrants or drunk ana disorderly persons, who are discharged from prison, being unable to pay the costs. That the county is liable there can be no doubt. The very point is ruled by the Supreme Court in Northampton County v. West (4 C. 173). It should appear, however, that the persons were punished for these offences by being committed to prison at hard labor, and were discharged on account of inability to pay costs.

The next question relates to the amount of fees to be received by the constable for such arrest and commitment. The fee bill oF 1857 was, as we conceive, framed with great care, and allowed about a just and fair compensation for services of the character described in these bills: twenty-five cents for each arrest and taking the party before the magistrate, and a like sum for each committal to prison; or where the party was bailed after being given into the custody of the officer, and before committal. This was a general law, extending throughout the State except in the city of Philadelphia. Section 17 of the act of 19th March, 1860, however, changed the fee bill as to the city of Harrisburg alone, leaving the general law to prevail in other parts of the county. That statute revived and adopted the fee bill of 1814, which gives the constable thirty-seven and a half cents for executing a warrant on behalf of the commonwealth, or arresting without a warrant disorderly persons or other offenders against the law; conveying to jail on a mittimus, thirty-seven and a half cents, and where bail is entered after the person is committed into custody, and before commitment to prison, twenty-five cents. These are the fees, which can be legally charged in the present case, except for arresting and committing vagrants, which must be governed by the act of 2d April, 1860. That act allows twenty cents for arresting the vagrant and taking him before a justice, and twenty-five cents for conveying to jail, and mileage as in other cases. It has been contended that this law was designed to embrace the arrests of persons drunk and disorderly, as well as vagrants; but we can find nothing to that effect in the statute. The offences are distinct in their character, and no other word is used except “ vagrants.” It is impossible to extend the law to other cases not named; and if the legislature so intended, it should have used apt words to express its meaning. A further question is raised as to the mileage in these arrests and commitments. It is said to be the practice of the constables in this city to charge one mile circular in each case of arrest, however near it may be made to the office of the justice, and one mile circular for conveying the person committed to the prison, without regard to the distance the magistrate’s office may be therefrom; this on the principle that there can be no fractions of a mile. They are right in the principle, but wrong in its application. There can be no charge for the fractions of a mile; and if the distance from the place of arrest to the office of the justice, and back to the residence, usual place of business, or location of the constable, is less than one mile circular, there can be no charge of mileage. Where the arrest is made on a warrant, the mileage must be computed from the office of the justice to the place of arrest and back to the office. If the distance from the office of the committing magistrate to the prison and back again to the office be less than one mile circular, a like rule must prevail. There can be no constructive mileage, but the constable can only-charge for the distance actually travelled. If less than one mile circular be actually and necessarily gone over, the law contemplates that the fees allowed will be sufficient compensation. The fee bill only permits remuneration for services named therein and actually performed; and the officer who takes other or greater fees, or for services not rendered, subjects himself to a penalty of fifty dollars in each case, and also to an indictment for extortion. The mileage charged in these bills must be disallowed, except where the distance travelled is at least one mile circular.

We can give no judgment in these cases until the amounts are agreed upon.


text:
      Court of Common Pleas, Dauphin County,

      October 20th, 1862.
    Messner v. Messner’s Administrator.
    When money was due to a married woman as heir from the estate of a decedent, and notes were given in the name of her husband for the amount, they are the property of the wife, and do not go to the personal representatives of her husband.
   By the Court.

It appears from the facts stated that Isaac Messner, now deceased, married Ellen Enterline in the year 1858, she then being a minor, and having money due her, and virtually in the hands of her guardian, arising from the real estate of her late father; and also for personal effects due from his administrator. After sic attained her majority, a settlement took place between her guardian, her father’s administrator, and herself and husband, in which they each gave their notes in the name of the husband for the sums due to her by them respectively; and she and her husband released each of them from the respective claims; but neither release was executed and acknowledged according to section 48 of the act of 29th of March, 1832. This matter is unimportant in the present controversy, except as it fails to show a legally expressed intention to relinquish her right in favor of her husband to the estate descending from her father. The husband appears to have retained the notes in his possession, and to have received some money on them from the debtors; but on his leaving home to enter the military service of the county, he gave them to his wife, saying “it was her money, and that she might do with them whatever she pleased.” The wife retained the notes; but after the death of her husband, on the demand of his administrator, gave them to him under protest, she claiming them at the time of the appraisement. Prior to the act of l'lth April, 1848, the husband could convert his wife’s properly or choses in action to his own use at pleasure, except as restrained by the act of 1832 before cited; and conversion was a question of intention, to be collected and inferred from the acts and declarations of the husband. Taking a promissory note from her debtor in his own name for the amount due was of itself a conversion, if so intended, and would be presumed to be so primd facie. That presumption might, however, be rebutted by his acts and declarations made at the time or subsequently, showing that he did not claim it in his own right, or intend to convert it; but held it as a trustee for his wife. The principle is abundantly established in the case of Hinds’s Estate (5 Wh. 138), where Gibson, C. J., says, “such acts arc powerful evidence of conversion, but are not actual conversion, and may be rebutted.” Also Siter’s Case (4 R. 475). The same doctrine is apparent in Stewart’s Appeal (3 W. & S. 476); and obtaining a judgment for the amount, as there mentioned, was unimportant as evidence of the conversion, but only went to show an extinguishment of the legacy. Had this transaction occurred prior to the enactment of the act of 1848, I should have held that the delivery over of these notes by the husband to the wife, accompanied with the declaration that they were her own money, and to be used as she pleased, would of itself rebut the presumption of an intended conversion arising from the act of taking them in his own name, especially as it does not appear that the rights of creditors are likely to be affected. But since the passage of that act the legal status of the parties is entirely changed. The husband, on receiving, his wife’s money, is presumed not to take it for himself, but as her trustee. As we understand the decisions, all of the legal presumptions as to ownership from the husband taking the securities in his own name are reversed; and instead of now being presumed to be a conversion, it will be presumed that he takes them as trustee for his wife. There must be express evidence that the wife intended to give the money to her husband (Trimble v. Reis, 1 Wr. 488). And even where he has received her money, it will be presumed that he did so for her use, and a promise to repay it will be enforced against his estate (Johnstone v. Johnstone’s Administrator, 7 C. 450). In the case under consideration, on identifying the notes, and proving that they were received for the wife’s estate, I am of the opinion that they could be lawfully claimed and held by her against his legal representatives, even without the act of delivering over to the wife, accompanied with the declarations of the husband, as set forth in the case stated; but those words, as connected with the act of delivery, establish the trust beyond all cavil, and show that the husband did not claim the money in his own right, but in that of his Wife, and held the notes for her use. Therefore, she is entitled to their proceeds. We give judgment in favor of the plaintiff on the case stated.

Alrichs, for plaintiff.

Mumma,for defendant.


text:
      Court of Common Pleas, Dauphin County,

      December 30th, 1862.
    Hoke v. Bowman.
    In an action before a justice of the peace on a claim above one hundred dollars the plaintiff need not be present when the defendant confesses judgment.
   By the Court.

From the transcript returned in this case it appears that the defendant, Hoke, without mention made of the plaintiff’s presence, voluntarily appeared before the magistrate on July 30th, 1860, and confessed judgment in favor of the plaintiff, Bowman, for $129.62. From a transcript taken by the plaintiff, and filed July 30th, in the Common Pleas, for the purpose of lien, it would seem that both plaintiff and defendant voluntarily appeared before the justice, and the judgment was confessed. Under this contradiction the justice was summoned to bring into court his original docket, which shows that both parties appeared, as set forth in the first transcript; but when examined on oath the magistrate testifies that Bowman came first, and brought the note, which was left with a request to accept a judgment; and immediately after he had left the office, the defendant came in, and voluntarily confessed the judgment for the sum stated. The docket and first transcript show all regular. The second shows a defect going to the jurisdiction, as it does not appear that both parties are present. The justice’s testimony establishes that both were present on the same day, but not at the same time, that the plaintiff requested the judgment to be entered, and the defendant voluntarily confessed it. There was no contest about the claim, either as to its validity or amount, and the objection to the proceeding is purely technical. Is it fatal? Section 14, of the act of 20th March, 1810, gives the justice jurisdiction over sums exceeding one hundred dollars, if’ the parties voluntarily appeared before him and confessed the judgment. Must both parties be present at the same time ? The law does not say so in terms, nor can we collect that such was the legislative intention by clear and necessary implication. In King v. King (1 Penna. 15), the question did not arise, as the case turned on the confession not being made at the justice’s office. In Camp v. Woods (10 W. 118), Judge Kennedy says, that the parties must appear before the magistrate voluntarily and confess the judgment ; but there it was entered on a line from one of two partners. He also says that they must both appear in person, and the plaintiff cannot attend by his agent. That the defendant must so appear, there can be no doubt; but we see little ground for requiring the personal presence of the plaintiff. It was held by the Court of Common Pleas of the City of Philadelphia, in Boon v. Collins (10 Leg. Int. 106), that if any one of several parties, plaintiffs, were absent, the judgment confessed by the defendant was void. But that case is entirely repudiated and overruled in Truit v. Ludwig (1 C. 145), where Lewis, C. J., decides that the plaintiff may appear by agent, but the defendant must be personally present. This virtually overrules the dicta of Judge Kennedy in Camp v. Woods. The great object of the law is to protect defendants against the entry of judgments in their absence, or in any other way than by personal volwntary confession. No great evil can arise in the case of the plaintiff, who, if dissatisfied with the judgment, may immediately repudiate the act, and refuse its acceptance. To go by the highest evidence of record, the original docket, this proceeding is regular. To act on the testimony of the magistrate, I still consider it valid, as the plaintiff had been in the office with his note, which was left with a request that a judgment might be immediately obtained. The defendant came in within an hour, and confessed judgment for the precise amount the plaintiff claimed. The statute nowhere says that the parties shall be in the office together; both were there, and only a few minutes apart. The plaintiff makes no objection to this judgment because taken in his absence, and the defendant has no right to object because the former was not present. He was himself personally present, and cannot take advantage of an irregularly by which he was in no wise injured. To declare a judgment void for an informality of this kind in favor of a party who had all the benefit of the law, would be to establish injustice. It would be sticking in the letter of the statute, and losing sight of its spirit and intention. •

The judgment must be affirmed.


author: By the Coubt.

text:
      Court of Common Pleas, Dauphin County,

      November 29th, 1862.
    Commonwealth ex rel. Wendt v. Andress.
    The order of the President of the United States, under the act of Congress conferring on him the power of prescribing the 'modus operandi of calling out the militia, has all the force of an act of Congress. A drafted militiaman, so called out, cannot pay a fine in lieu of service, unless the provost-marshal fails to take him.
   By the Coubt.

The complainant has sued out this writ averring that he is unlawfully deprived of his liberty by being confined in “Camp Curtin” without authority. To this the respondent replies that he holds the complainant as a regularly drafted militiaman, drawn for the service of the United States, and delivered to him as commandant of Camp Curtin, by a provost guard, he being brought in as a deserter. It appears very clearly on the hearing that the complainant never was a deserter, in the ordinary sense of the word, but that when drafted he neglected and refused to attend, and was brought here by the guard.

Two questions have been raised by the complainant’s counsel: First. That no provost-marshal was regularly appointed, and, therefore, the guard had no authority to arrest him; and second, that when drafted it was optional with him to attend at the place of rendezvous, or remain at home and pay such fine as should be imposed on him by a court-martial, under the 5th section of the act of February 28th, 1796.

We are not authorized under this writ to inquire into the regularity of the provost guard’s action, as the complainant was not in their custody when it was sued out, and the object of the writ of habeas corpus is to relieve those unlawfully restrained of their liberty, not to decide on the regularity of the process under which ■they were seized, unless possibly in the case of an abuse of the ■court’s process which issued the writ. • If the complainant is in the lawful custody of the respondent, we have no right to inquire how he came there, whether voluntarily, or by compulsion; the only question for us to determine is, is he now unlawfully ■restrained of his liberty? We have nothing to say as to the action or power of the provost guard.

Has 'a drafted militiaman the option to pay a fine or serve his tour of duty? To determine that he had such choice and can escape personal -service by paying a fine not exceeding ninety-six dollars, under the act of 1796, would be to destroy the whole service and render the draft abortive. It might, under many circumstances, and even under those now existing, lead to the subjection of the country and subversion of the government. Névertheless, if Congress, through its negligence, has failed to provide any other means than that found in the law cited to oblige the citizen-soldier to perform his duty, he has the legal right, however it may conflict with patriotism, to escape the service, and pay, in its stead, the small pecuniary penalty.

As we understand the act of Congress of February 28th, 1796, it by no means leaves it optional with the militiaman regularly called into service to pay a fine or perform his duty. On the contrary, we consider that the fine was intended to be imposed, at the option of a court-martial as to the amount, in those cases where personal attendance from any cause could not be enforced, making it low where it arose from involuntary causes, and higher when from perversity; and the penalty is not only to be imposed for nonattenclance, but for failure to obey any order of the President under that act. If the person of the militiaman can be seized and brought to the rendezvous, he is mustered into service and becomes at once subject to the articles of war and the ordinary military control. If he evades seizure, or escapes from the service before being mustered in, and cannot be retaken, or if he is unable to attend at the place of rendezvous from physical disability, his case is to be heard by a court-martial, and be fined more or less or excused at the discretion of the tribunal.

It is true that Mr. Justice Story, in his dissenting opinion in the case of Houston v. Moore (6 Wheaton, 1), says, that the drafted soldier has it in his power to attend or is subject to a fine. Yet the point did not arise in the case, and what is there written must be considered an obiter dicta. From the reasoning of the same learned judge in Martin v. Mott (12 Wheaton, 19), we can collect the following positions: That the President of the United States must judge when the exigency arises for calling out the militia of the respective States to enable him to see that the laws are faithfully executed, and is incident to the duties of superintending the common defence, and watching over the internal peace of the republic. That the right to enforce the attendance is an incident to the right to call, and the whole is a military power to be carried out by the head of the nation as commander-in-chief. But we are of the opinion that this case does not turn on the proper construction of the act of1796, but on that of 1862] providing for drawing the militia to serve for a period not exceeding nine months, and conferring the power ' upon the President to prescribe the modus operandi. Under the authority of this act was issued army order No. 99, in which the whole method of selecting, drawing, and enforcing the attendance of the militia of the respective States was pointed out.

This order having been authorized by the act of Congress, must be considered as having all the force of a law, the same as if specially set forth at length in the act, and it prescribes a special method of enforcing the presence of the drafted men at the place of rendezvous directed to be fixed by the governors of the respective States. One provision of the order is, “Provost-marshals will be appointed by the War Department in the several States on the nomination of the governors thereof, with such assistants as may be necessary to enforce the attendance of all drafted persons who ■ shall fail to attend at the place of rendezvous.” If this provision had been embodied in the act of 1862, which is supplemental to the former law, it could scarcely be pretended that personal attendance by the party drawn or his accepted substitute was not - contemplated, or that he had an option to pay a pecuniary mulct in lieu thereof at his option, and the validity of the whole enrolment and draft depends on that order.

I .am clearly of the opinion that the order is valid, and must have the force of an act of Congress, that the attendances of drafted men at the places of rendezvous may be enforced in the mode prescribed, and ■ that when drawn they have no option to pay money or render service, but may be obliged to perform the latter. But should the provost-marshal fail to bring the men to the place of rendezvous, then the fine may be imposed by a court-martial under the act of 1796, and thisj according to the cases already cited, may be forced even after peace is determined. It is ordered that John Wendt be remanded into the custody of the officer in command at Camp Curtin, as á regularly drafted militiaman.


text:
      Court of Common Pleas, Dauphin County,

      January 13th, 1863.
    Smyser et al. v. Brooks, Executor of Brooks.
    Ho notice of the revival of mortgage need be served upon a terre-tenant. A mortgage given to secure dower should not be revived until one year after the death of the widow. An executor of an administrator is tiie proper-party to sue on a mortgage given to secure the dower of the widow of the administrator’s intestate, after her death. The court has no power to open an irregular judgment after seven years have elapsed from the time of filing it upon record.
   By the Court.

On the argument of the above motion, the following state of facts was established by the evidence and admissions of the counsel:

George Hoyer and Christian Kunkel were administrators of Peter Kunkel, deceased, and as such, sold lot 35, in Harrisburg, to John Brooks, on the 24th day of April, 1813, under an order of court, and took a mortgage and bond on that day to secure to Eve Kunkel, widow of Peter Kunkel, deceased, the amount of her dower out of said lot, $627.40, the interest of which was to be paid to her annually, and on her death, the principal to said George Hoyer and Christian Kunkel, administrators as aforesaid, a for the use of the heirs of Peter Kunkel, deceased.” The annual interest was paid to Eve Kunkel during life, and she died September 25, 1847.

Christian Kunkel died in 1823. GeorgeHoyer in 1841, having by his will appointed Sarah Hoyer and Philip Smyser his executors. John Brooks died in December, 1845, having constituted D. W. C. Brooks, his executor. Philip Smyser and Sarah Hoyer, as executors of George Hoyer, who was surviving administrator of Peter Kunkel, deceased, assigned the mortgage to Simon Cameron, by writing indorsed thereon, on the 8th day of April, 1848. Peleases were also given to Simon Cameron by the heirs of Peter Kunkel about the same time, recorded 16th of May, 1848, showing they were all paid in full by him for their respective shares.

C. Kunkel and George Hoyer obtained a credit for this bond or mortgage, as still outstanding, to secure the dower of Eve Kunkel, in their administrator’s account, on the estate of Peter Kunkel, deceased, settled 27th October, 1813.

D. W. C. Brooks, by deed dated January 1st, 1846, conveyed all his interest in his father’s real estate to his three sisters, Elizabeth, Mary, and Julia Brooks, which was recorded May 17th, 1852. Some time between 1855 and 1860, D. W. C. Brooks died, and on the 26th November, 1&60, letters,of administration cum tes. an. de bonis non were issued to Mary Brooks on the estate of John Brooks, deceased. To January Term, 1861, a scire facias issued on this mortgage, in the name of Simon Cameron v. Mary Brooks, administratrix de b. n. cum test, annexo of John Brooks, deceased, on which the plaintiff suffered a nonsuit on the 8th of May, 1862. An alias sci. fa. since issued to revive the original judgment, No. 27, to August Term, 1862.

Several points have been made by defendant’s attorney, as the foundation of this motion.

First. The executor of John Brooks had no right to accept service of the writ; the terre-tenants should have been made parties, or at least served Avith notice.

Second. The writ of scire facias issued prematurely on the mortgage. Eve Kunkel had not been dead a year.

Third. There were no legal parties plaintiffs to the suit. Letters of administration should have been taken out on the estate of Peter Kunkel, and the mortgage sued in the name of such administrator.

Fourth. The court should open the original judgment, as the' terre-tenants were not notified, and let them into a defence.

1. By the express terms of the 6th section of the act of 1705, it is provided that the scire facias shall be issued against the mortgagor, his heirs, executors, or administrators. There can be no doubt, therefore, that the executor was a proper party de-, fendant. It is equally clear that no notice need be served on the terre-tenants, no law requires it in proceedings on mortgages (1 W. 491; 4 Barr, 80), but they will not be concluded by the judgment if not served; can make their defence in an ejectment for the premises. It is therefore safest for the mortgagee to make them parties, but a failure so to do is no irregularity.

The 34th section of the act of 24th February, 1834, does not require the service of such a writ upon the heirs of a decedent. That section applies to original actions only. It has no application to a scire facias upon a mortgage (2 Wharton, 365; Chambers v. Carson, 1 Miles, 268). It does not even apply to the revival of a judgment which was a lien in the lifetime of the decedent (4 W. and S. 237; McMillan v. Reed).

2. There is little doubt but that the scire facias issued prematurely. It should have been delayed until one year alter the death of Eve Kunkel, but it is questionable whether this defect should not have been pleaded in abatement (9 Barr, 33, 36). It is very true that a vendor of land, subject to a prior mortgage, cannot waive the time after a sale to prejudice of his vendee (1 T. and II., Penna. Prac. 570, in note). But that principle probably does not apply to the action of an executor, to whom the testator and the law has intrusted the management of the estate, and whose duty it was to see that all things were conducted for its benefit. It may .be that by an arrangement for a delay of execution, he gained more than an equal advantage for the heirs. Even if an irregularity, it is probably cured by the lapse of time, more than seven years having intervened since the judgment, and if the proceeding is void, the terre-tenants can take advantage of it bn the scire facias. A void judgment will not stand in the way of their defence. We will speak more fully of the effect of this hereafter.

3. If the claim due on this mortgage comes within the 31st section of the act of 24th of February, 1834, it is very clear that the parties named on the original judgment are not the proper persons to sue. We are of the opinion that the section referred to was intended to cover the ordinary personal estate only, and not a mortgage given for a debt solely concerning the real property. This is not money due and belonging to the estate of the decedent,” but to the heirs of the intestate after the death of Eve Kunkel. There is no doubt but that moneys which are outstanding belonging to such an estate must ordinarily be recovered in the name of an administrator de bonis non,' and not by the legal representatives of the deceased administrator; such is the settled construction of that statute (9 W. 479, 485; 7 Barr, 320, 321; 6 Harris, 313; 7 Harris, 201). The mortgage in question is given to Christian Kunkel and George Hoyer, administrators of Peter Kunkel, “ for the use of the heirs of Peter Kunkel,” after the death of his widow, whose dower it was also intended to secure; G. Iioyer and C. Kunkel, calling themselves administrators, would, prior to the passage of that act, be considered surplusage. It is otherwise since in regard to all that portion of the estate which must come into a course of administration, as vendue notes for personal property, or the like. This debt is differently situated. True, it is a surplus due from a sale of the real estate of the decedent, but it is the amount left after paying all the debts of the decedent, and remained in the lot, in order to secure the widow’s dower during her lifetime, and the residue was to be paid over to the heirs. It was their money as fully as if they had been severally.named, and the administrators had nothing to do with the fund except as naked trustees. On the death of Eve Kunkel, each heir could have gone to the mortgagor, and received his purpart, and his receipt or release would have been good without the action of the administrators. ' Our law regards the interest of the cestui que trust, not that of the trustee, especially of a naked one without interest. It has been decided, as already shown, that the 34th section of this act does not embrace the case of a mortgage, and we can see no reason for applying the provisions of the 31st section to that kind of instrument, especially in a case like the present, where the mortgages appear to have been given on the winding up of the whole business. It certainly cannot be necessary to take out letters of administration de bonis non to collect a debt of this character, when not one penny of the money would be coming to the estate of the decedent, but to the heirs alone in their own right. It might be supposed that such letters must issue in order to raise legal parties to a suit, and such would unquestionably be the case in regard to a bond or judgment, but it is otherwise as to a mortgage. If this instrument had been taken by Peter Kunkel in his lifetime, the scire facias would have been issued in the name of his “ heirs,” by the express words of the 6th section of the act of 1705, which gives the writ to the party mortgagee, “ his heirs, executors, administrators, or assigns.” If the fund is required for the payment of debts, it will be recovered for the use of the executors or administrators. As this mortgage was taken after the death of the intestate, on a sale of his land by the administrators, it is for all legal purposes treated as their own proper debt, for which they would have to account to creditors, if any, or to the heirs, if none. Such was the case in all sales of goods prior to the act of 1834, and naming themselves administrators were treated as surplusage, and a mere description of the person (8 S. & R. 402; 2 Penna. 491); and since that act, where they sold land to pay a widow’s dower, it was held that it became their own proper debt, and the charge against them was not lost by lapse of time (2 Barr, 422). Whilst, then, we concede the general principle as applicable to the personal estate, that if a promise be made to an administrator for the use of an estate, it ' must now be sued by an administrator de bonis non. on tbe death of the promisee, we do not consider it applicable to a proceeding on a mortgage given for the use of the heirs, although in the name of the administrators, and that they stand as the legal parties during life, and the executor, administrator, or even heir-at-law of the survivor can proceed by scire facias after their death precisely as they would have done before the act of 1834. It might possibly be otherwise on the bond accompanying the mortgage. That, perhaps, must be pursued under the act of Assembly, but the whole law is different as to mortgages.

I am inclined to the belief that the parties tp this suit are strictly correct, but if there is any serious doubt, it is that Simon Cameron should have sued in his own name as legal assignee of the mortgage. This is a point not raised on the argument, and possibly, as the assignment was not made by the mortgagees, but by the executors of the survivor, it passed but an equity. If so, it is properly sued. Rut supposing the proceeding to be erroneous, either in this or the second item referred to, is it void ? If it is, the present defendant, Mary Brooks, can take advantage of the error in the scire facias, as fully as if the judgment were stricken off. • A void judgment cannot be revived. There is then neither advantage nor necessity in exercising such doubtful powers. If the judgment entered is only irregular, the next question is, how far is it cured by lapse of time ? By the 20th section of the act of the 18th of April, 1791, it is provided, inter alia, that no judgment shall be avoided or reversed for any defect or error therein unless the writ of error be commenced within seven years after such judgment was signed or entered of record. More than double that time had elapsed before this motion was made. It will scarcely be pretended that a Court of Common Pleas could strike a judgment off its records, which the Supreme Court could not lawfully reverse on a writ of error. We unquestionably possess very extensive powers to open judgments obtained and kept on foot by fraud or circumvention, but that is a very different matter. Many cases decide that we cannot lawfully strike off judgments after a great lapse of time. In very few instances can we lawfully do it at all. No legal ground has been laid to open the judgment in the present case. No merits are shown; no payments proved not already credited, and if any were made, it can be proved on the scire facias. There is no pretence that full value was not paid by the present claimant, and to the proper persons, the heirs of Peter Kunkel; they present no claim, and all the objections are purely technical, without merits, and the only matter complained of is, that the executors of John Brooks did not pay over the money which his testator intended should be applied to the discharge of this debt — committed a breach of trust.

4. It is unnecessary to open the judgment for the purpose of protecting the rights of the terre-tenants, as it is well settled that they can now make every meritorious defence which they could have made to the original judgment. Possibly not those of a mere technical character, which should have been pleaded in abatement by the executor, the legal party defendant to the action, but every one of which they, as terre-tenants, could have taken advantage, showing or tending to show that their property is not properly subject to, or bound to pay the mortgage.

Lamberton and Fisher, for plaintiff.

Subbell and Alricks, for defendant.

The motion to strike off the judgment and set aside the proceeding is overruled and rejected, as also the oral application to open the original judgment.

Affirmed by the Supreme Court (12 Wr. 86).


text:
      Court of Common Pleas, Dauphin County,

      April 7th, 1863.
    Unger v. Unger.
    A devise to a person of the proceeds of real estate during life, and upon his death to his heirs in fee simple, gives to the former not a life estate, hut one in fee.
   By the Court.

This case, as stated, presents a single legal question: Does the will of Bernard Geiger give to his daughter, Anna M. Unger, a fee simple, or a life estate in the property sold? If the former, the plaintiff is entitled to recover; if the latter, judgment must be rendered in favor of the defendant.

The will of Bernard Geiger, made in the year 1841, by clear and unequivocal expressions, gives to each of his three daughters a life estate in certain real property, therein described, of which he died seized in fee, of which the lot now in question is a part. But the portion of the will relied on by the plaintiff to convert the life estate into a fee simple is in these words: “ The proceeds of my said real estate to be applied by my executor, until the appraisement thereof, to the joint use of all my children, and upon the decease of either of my said daughters, the real estate above devised to her, during life, I give and devise to her heirs in fee simple.” There can be no possible doubt of the actual intention of the testator to bequeath a life estate only in the houses mentioned in the will, and the land in question to his three daughters. He so declares in four several places, whilst he gives them the fee simple in the residue of his estate. But the limitation over is in favor of their respective heirs, in fee simple. Does that confer the fee on Mrs. Unger, as the proprietress or first taker of a new estate? That question appears to be answered in the affirmative by nearly all of the decisions.

From them it would seem to be quite as impossible to deprive the donee or alienee for life, remainder over to the heirs of his body, from barring the entail by a common recovery, as to sell or bequeath land in fee simple, and prevent the devisee or alienee from selling it again; and the same rule precisely has been applied to bequests or alienations in fee simple, as to those in fee tail. "What is called the rule in Shelley’s case has become a settled rule of property in Pennsylvania, and cannot now be shaken without overturning many estates and doing incalculable mischief. Although often spoken of as if the rule was then adopted or recognized for the first time, it is of much greater antiquity, as we are' able to trace it back as far as the reign of Edward the Third, and probably to that of Edward the First. It has been applied to both deeds and wills, as is clear from Shelley’s case itself, and Hileman v. Bouslough, 1 Harris, 344, which arose under deeds, and a multitude of cases depending on wills.

In almost every case, whether arising under one or the other, it has defeated the intention.of the grant or bequest; but notwithstanding it almost invariably has that effect, we must adhere to the rule, which I am disposed to think was adopted, in the first instance, to prevent the fettering of estates from alienation during the lifetime of the immediate alienee or devisee; and in the case of wills to more clearly mark the distinction between those who take by descent, and those who hold by purchase. There can be no doubt in the present case that the limitation over after the expiration of the life estate is to the heirs general of the daughters respectively; not as children, but as heirs generally; not as descriptive of the persons, but of the character in which they are to take. They are to take as heirs of the devisee of the freehold, and not as the root of a mere succession. This, according to all of the cases in Pennsylvania, from Carter v. McMichael (10 S. & R. 429) to Guthrie’s Appeal (1 Wright, 9), and Haldeman v. Haldeman (4 Wright, 29), has been treated as an invariable guide to determine that the first taker holds the property in fee simple or fee tail, and has not a mere life estate, and can alien or devise the same as other owners of the freehold, or other tenants in tail. Had Bernard Geiger given the remainder over to his own right heirs, or limited it to the children of his daughters respectively, should they die leaving issue living at the time of their deaths, and if not to his heir-at-law, there could be no doubt but that the property so devised would .have been for life only. But the will is not so worded, and we must take it as it is written, and carry it out according to the legal effect, although it may defeat the actual intention of the testator. Judgment must be rendered in favor of the plaintiff on the case stated.

Kunkel and Lamberton, for plaintiff.

Simonton, for defendant.

Affirmed by the Supreme Court, May 27th, 1863.


text:
      Court of Common Pleas, Dauphin County,

      April 29th, 1863.
    Trullinger & Co. v. Mauly.
    A motion to strike off a judgment and all subsequent proceedings is too late after a sale of the property was made, and a deed for it was executed by the sheriff. Haworth et al. v. Wallace, 2 H. 118, doubted.
   By the Court.

The motion in this case is predicated on the fact that the defendant is a mere tenant for years of the premises on which the building was erected, against which a claim for materials was filed. "We are not furnished with the lease, but a very lame statement of facts is presented, which may or may not raise the proper legal questions. From the decisions, it would seem that where it was understood that improvements were to be made on the premises by the tenant, the lien would be good for the term at least (Woodward v. Leiby, 12 C. 437; Leiby v. Wilson, 4 Wr. 63). If there was no understanding between lessor and lessee that improvements were to be made, no lien can be filed even for the term (Haworth et al. v. Wallace, 2 H. 118). That case is in part predicated on Church v. Griffith (9 Barr, 117) and White’s Appeal (10 Barr, 252); neither of which are the same in principle, as both were claims for a portion of the money raised on a sale of chattels on a fi. fa. It is true- they were affixed to the freehold, but were, as respects the tenant, mere -chattels. We are scarcely prepared to believe that Haworth et al. v. Wallace will be adhered to by the Supreme Court, as the effect would be to deprive mechanics and materialmen of their liens, even where the tenant held for a long term, as ninety-nine years or the like. We consider that all of the tenant’s estate, be it much or little, is bound by the lien; and a term for years is an estate according to all elementary works, although an estate less than freehold. The case, as decided, would be binding on us, although we do not consider it sound law; but we refuse this motion on other grounds. The proceeding is closed; judgment was obtained on the scire facias. A levari issued; sale of the premises was made, and a deed executed by the sheriff. After this it is too late to set aside the proceeding. If the judgment and sale are void, that will properly be tried in an action of ejectment. We might as well be asked to strike off a judgment after it had been paid by the debtor and satisfaction entered by the creditor as to expunge this. If the purchaser obtained nothing by his deed, he cannot disturb the tenant in his possession. If he bought a good title we cannot deprive him of it. In every point of view this motion is too late, and we have no power to comply with the defendant’s demand, as it cannot benefit him in any particular. If the property did not sell for sufficient to pay the judgment (of which we have no evidence), it cannot injure the party, being a mere petition in rem. ' The motion to set aside the proceedings is refused.

Bigler, for plaintiff.

Alriclcs, for defendant.