author: Mr. Justice Siiarswood

text:
    Ashhurst’s Appeal.
    1. An unmarried woman conveyed in trust all her property to be invested, with authority to sell and reinvest and collect the rents and income, and after deducting taxes, &c., to pay it to her or her appointee during life, if she should so long be unmarried; in case of marriage, to pay the rents and income, to her or her appointee, during her life, for her separate use, but not to be subject to the debts or control, &c., of her husband; upon her death to such persons and use as she by will should appoint; and for want of appointment to such persons and for such estate as her property would go under the intestate laws; .with authority to the trustees to sell absolutely or on ground-rent, the proceeds of sale and ground-rent to be for the same trusts, after paying her for her separate use $1500, and on her request to mortgage the property for $3000, in prospect of her marriage. She married and survived her husband. Held, that the trust continued.
    2. The trust for the woman was only of the income, and her interest was but that of a tenant for life.
    3. If the beneficiary of a trust be a woman the benefactor can protect her from her own debts and improvidence, as well as from those of her husband.
    4. One may make an irrevocable trust for himself for life, and remainder for his children, if the rights of creditors do not intervene, and it be an active one, if so drawn that the entire equitable iuterest does not vest in the cestui que trust.

    5. A spendthrift trust may be created as well for a woman as a man.
    6. Earp’s Appeal, 25 P. E. Smith 119, followed; Koenig’s Appeal, 7 Id. 352, distinguished.
    February 24th 1875.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from tbe Court of Common Pleas of Philadelphia: Of January Term 1875, No. 3. In Equity.
    The bill in this case was filed April 1874, by Virginia Kennard, widow of Manning Kennard, deceased, formerly Virginia Eyre, against John Ashhurst, who, with Charles Massey, Jr., was trustee, &c.
    The bill set out that on the 23d of June 1846, the plaintiff, then unmarried, conveyed all her property, real and personal, to the above-named Ashhurst and Massey, and the survivor, in fee, “ In trust * * * to let or demise the real estate hereby granted and conveyed, and to invest and keep invested the moneys and personal estate hereby assigned and transferred in good and secure mortgages of real estate, at interest in the public loans of the United States, of the state of Pennsylvania or of the city of Philadelphia, or in the purchase of ground-rents, and the same from time to time to call in, assign, sell, and dispose of, and again invest as aforesaid, and to recover, collect, and receive the rents and income thereof, and pay over the same, when and as received, and not by anticipation, after deducting all taxes and necessary repairs, of the said trust estate, and all reasonable costs, charges, and expenses attendant upon the execution of this trust, into the hands of the said Vu’ginia Eyre, or unto such person or persons as sh'e shall, by any writing, under her hand, appoint and direct, for and during all the term of her natural life, if she shall remain so long sole and unmarried. But in the event of the marriage of the said Virginia Eyre, then and in such case to hold all and singular the said trust estate, from and immediately after the marriage of the said Virginia Eyre, * * * to pay the net rents and income to the said Virginia Eyre, or unto such person or persons as she shall, by any writing, under her hand, direct and appoint, for and during the term of her natural life, to and for her sole and separate use and benefit, but so that all and singular the said trust estate, the rents and income thereof, and every part thereof, shall not be subject or liable to the debts, control, or engagements of any husband she may have or marry, and for which rents and income the receipts of the said Virginia, in her own name, or the receipt of the appointee or appointees, shall be deemed good and valid discharges in the law, and from and immediately after the decease of the said Virginia, then to and for the only proper use and behoof of such person or persons, and for such estate and estates, and in such sort, manner, and form as she, the said Virginia, by her last will shall appoint, and for want of such last will or appointment, then to and for the only proper use, &c., of such person or persons, and for such estate and estates, and in such sort, manner, and form, to whom and as the same would have gone under the intestate laws of Pennsylvania, had she, the said Virginia, died intestate, seized thereof; Provided, that it shall and may be lawful to and for the said Charles Massey, Jr., and John Ashhurst, and the survivor of them, at any time hereafter during the continuance of this trust, to grant, and sell absolutely, &c., * * * all or any part or parcel of the real estate hereby granted and conveyed, and to grant and convey * * * on ground-rent, * * * reserving out of and for such parts and parcels respectively, the yearly ground-rent * * * to them, the said Charles Massey, Jr., and John Ashhurst, for the uses and purposes, and subject to the like powers and authorities in respect to sale and otherwise, as are herein and hereby declared of and concerning the estate hereby granted, and with the clauses of entry, distress, and re-entry and covenant for payment of the rent and taxes, and with or without a provision for the extinguishment of the same rent or rents within a limited time as may be agreed upon, and also to join in any partition or exchange of the real estate or any part thereof, and upon receipt of the purchase-money or securities for such sales as aforesaid, and upon receipt of the principal or extinction moneys of any yearly ground-rent hereby assigned and conveyed, or of any yearly ground-rent that may hereafter be reserved, and upon such partition or exchange as aforesaid, to make and execute in due form of law, all such deed releases, &c., * * * as shall be necessary and proper to carry into effect any such sale, * * * in trust, out of the first moneys to be so produced to pay to the said Virginia, for her own separate use, the sum of $1500, and the residue thereof, and all other moneys to be produced by such sale, * * * to invest, &c., * * * and provided, that it shall and may be lawful for the said Charles Massey, Jr., and John Ashhurst, and the survivor, to raise, by mortgage of the premises, the sum of $3000, if requested to do so by the said Virginia Eyre in prospect of marriage, which request shall be evidenced by the said Virginia Eyre joining in any such mortgage.” * * *
    The bill further set out that, since the creation of the trust, the plaintiff married Manning Kennard, who had died, and that Massey, one of the trustees, was dead; that the trust was no longer an active trust, and that plaintiff was entitled to a decree declaring the trust ended, and that she was entitled to a reconveyance of the trust property.
    The prayers were for such decrees.
    The answer of the trustee admitted the facts set out in the bill, and submitted to the judgment of the court the law arising upon them.
    The Court of Common Pleas, Ludlow and Peirce, JJ., decreed that the trust was ended, and that the trustee should convey the trust property to the plaintiff absolutely.
    The defendant appealed to the Supreme Court, and assigned the decree of the Court of Common Pleas for error.

      R. Evans, for appellant.
    The duties imposed make the trust an active one: Barnett’s Appeal, 10 Wright 392 ; Sheets’ Estate, 2 P. F. Smith 257; Bacon’s Appeal, 7 Id. 504; Earp’s Appeal, 25 Id. 119. The purpose of the trust in this case was not against coverture. The most that appellee can take, under the deed, is a life-estate. Her interest is expressly limited for life, and the power of appointment would not of itself enlarge this to a fee: 4 Kent Com. 319; Anderson v. Dawson, 15 Ves., Jr. 532; Girard Co. v. Chambers, 10 Wright 489 ; Dodson v. Ball, 10 P. F. Smith 499; Ralston v. Waln, 8 Wright 287.

      J. W. Paul, for appellee.
    May 10th 1875.
   Mr. Justice Siiarswood

delivered the opinion of the court,

The opinion of this court in Earp’s Appeal, 25 P. F. Smith 119, although it had been filed, was not published at the time the decree in this case was made below, otherwise the learned court would certainly have come to a different conclusion upon the question raised upon the bill and answer. The trusts of the will of Robert Earp were in all material particulars identical with those set out in the deed of trust in this case. There, as here, the trust was to collect and pay over the rents and income of the estate to the beneficiaries for life, with an ultimate disposition of the corpus or estate itself to such persons as would be entitled under the intestate laws of the Commonwealth. There was a clear distinction in the language and intention of the-testator between the income and the estate itself. It was necessary in order to carry the intention into effect, that the trust should be an active one, not an executed use under the statute. Most especially was this true as to the personalty, which would otherwise be exposed to risk in the possession of the life-tenant, against which the testator obviously intended to provide. There was in that case interposed, as here, a power of appointment by will, but that evidently did not affect the question. The life-estate was then an equitable one, and .the remainder to the heirs or persons entitled under the intestate law was an executed use, a legal estate. The two estates did not coalesce under the operation of the rule in Shelley’s case. It was not a case in which the entire equitable fee or absolute estate was in the beneficiary, where the continuance of the trust is no longer necessary, and ought therefore to end at the volition of the cestui que trust. In the deed now before us, the trust was “ to let and demise the real estate, and to invest and keep invested the personal estate; to collect and receive the rents and income, and to pay over the same when and as received, and not by anticipation, after deducting all taxes and necessary repairs and all reasonable costs, charges and expenses attendant upon the execution of the trust, into the hands of Virginia Eyre, for and during all the term of her natural life.” Then, with a provision to protect it from the debts or control of any husband whom she might afterwards marry, and for a power of appointment by will “ in trust to the only proper use, benefit and behoof of such person or persons, and for such estate and estates, and in such sort, manner and form, to whom and as the same would have gone under the intestate laws of Pennsylvania, had she, the said Virginia, died intestate, seised thereof.” Here, then, as in Earp’s Appeal, the corpus of the estate is fully and distinctly invested in the trustees, and put under their control. The trust for Virginia Eyre is only of the income, and her interest in that is only for life. The principal is given over to the persons who would be entitled to it under the intestate law. Although a provision is introduced to guard the income payable to Virginia Eyre from the control, debts, or engagements of her husband, it was not a trust for coverture under any of the decided cases. In Megargee v. Naglee, 14 P. F. Smith 216, and in the cases cited by the present Chief Justice in his opinion in that case, in support of the position that a trust for coverture ceases on discoverture, it will be found that in all of them, the absolute interest or equitable estate was in the wife, either directly or by the operation of the rule in Shelley’s case, where an express estate for life was given. Koenig’s Appeal, 7 P. F. Smith 352, may look like an exception ; but if the opinion in that case by Mr. Justice Strong be carefully examined, it will be seen that the case Avas ruled by the provisions of the will, that if the feme should survive her husband, the trustee should assign the estate to her absolutely and in fee. This showed clearly that the testator raised the trust solely for the purpose of protection against coverture. When the coverture ceased, there, by a divorce a vinculo, the trust came to an end just as it certainly would have done by the express Avords of the will if the husband had died. If the beneficiary be a Avoman, surely the benefactor can protect her from her own debts and improvidence, as Avail as against the debts and improvidence of her husband. That he can do this as to a man is beyond, question, and no principle or policy requires any distinction in this respect betAveen the sexes. It is true, that girls are not so often spendthrifts as boys, but they may sometimes be, and if extravagance in female dress continues as it has begun, the fortunes of girls may be as rapidly dissipated in that way, as by intemperance, gambling and licentiousness in young men.

It is hardly necessary to add, that the rights of creditors not being in question, a person may make an irrevocable deed of trust of property for himself for life with remainder to his children, and the trust be an active one, if so drawn that the entire equitable interest or estate does not vest in the cestui que trust. Such deeds are often executed by young men or Avomen by the advice of judicious friends, and to hold that they can be revoked at pleasure, would render such dispositions worse than useless.

Decree reversed; and now, it is ordered and decreed that the bill be dismissed at the costs of the appellee.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Baxter versus Allen & Needles.
    1. A judgment of record at the defendant’s death, although not then a lien on his land, is not a debt whose lien is limited to five years from the decedent’s death, unless suit be brought according to sect. 24 of Act of February 24th 1834.
    2. Suit in such case is unnecessary when the debt is already in judgment; it remains unaffected by time as to all volunteers until presumption of payment arises.
    February 26th 1875.
    Before Aonew, O. J., Sharsayood, Williams, Merche, Gordon, Paxson and Woodavaed, JJ.
    Error to the District Court of Philadelphia: Of July Term 1873, No. 87.
    This was a scire facias, issued May 27th 1872, by Allen & Needles, against John Baxter, executor, &c., of William Kerrigan, deceased, he being also devisee of said deceased; to revive judgment, No. 400 to December Term 1854.

      William Kerrigan died in December 1865. He devised real estate to John Baxter, the defendant, who pleaded in bar:
    “ That the said William Kerrigan died on the 6th day of December 1865, and the said plaintiffs are precluded from reviving the judgment against him as devisee of the said William Kerrigan, because he saith that before said writ of scire facias issued, more than five years had elapsed from the date of said death, and this he is ready to verify.”
    To this plea “ plaintiffs demur, and for cause of demurrer show that the said plea doth not set up any good defence in law why the said judgment should not be revived as against the said devisee.”
    The court entered judgment in favor of the plaintiffs on the demurrer.
    The defendant toot a writ of error, and assigned for error:
    That the court below erred in entering judgment in favor of the plaintiffs on their demurrer.

      D. W.Sellers (with whom was Cf. W. Dedrieh), for the plaintiff in error.
    If a judgment is not a lien at the death on the real estate, it must be renewed within five years, or it is gone. If it is not a lien at death, it drops into the rank of a debt of a decedent, simply: Kerper v. Hock, 1 Watts 1; Penn v. Hamilton, 2 Id. 53; Quigley v. Beatty, 4 Id. 13; Moorehead v. McKinney, 9 Barr 265; McMurray v. Hopper, 7 Wright 468,

      J. O. Longstreth, for defendant in error, was stopped by the court.
    March 8th 1875,
   Judgment was entered in the Supreme Court,

Per Curiam.

A judgment of record at the time of the death of the defendant, though without lien on his real estate at the time of death, does not fall into the class of mere debts, whose lien is limited to five years after the death of a decedent, unless suit be brought for the same according to the 24th section of the Act of 24th February 1834. That section expressly excepts debts secured by mortgage or judgment; suit is unnecessary when the debt is already in judgment. The record gives notice of the debt to all persons interested, and it remains unaffected by time, as to all volunteers, until a presumption of payment arises. This section is interpreted, also, by the next proceeding section, the 25th, which provides that the lien of a judgment at the time of the death of the defendant in it shall continue for five years, but after that period shall not be a lien on the real estate as against a bonfi fide purchaser, mortgagee, or other judgment-creditor, unless revived by scire facias, or otherwise according to law. Here the heir or devisee is not mentioned or excepted. After the expiration of the five years, without a revival, there can be no difference pointed out between such a judgment and one, the lien of which had expired before the defendant’s death. The decisions lead to the same result: Fetterman v. Murphy, 4 Watts 424; Brobst v. Bright, 8 Id. 124; Wells v. Baird, 3 Barr 351; Konigmaker v. Brown, 2 Harris 269; Aurand’s Appeal, 10 Casey 151.

Judgment affirmed.


text:
    Wright versus The Commonwealth.
    1. The Act of May 5th 1864, prohibiting the carrying of concealed weapons, not to Rights, sect. 21, saving rights of citizens to bear arms in defence of themselves and the state.
    2. Under sect. 62 of the Criminal Procedure Act of 1860, the jury may impose costs on an acquitted defendant, although the indictment be so defective that no conviction could have been had upon it.
    3. Commonwealth v. Tilghman, 4 S. & R. 127, followed.
    March 1st 1875.
    Before Agnew, C. J., Sharswood, Williams, Merour, Gordon and Paxson, JJ.
    Error to the Criminal Court of SchuylMll county: Of July Term 1871, No. 163.
    This was an indictment found at the April Term 1871, against Jonathan Wright, that he “ did unlawfully and maliciously carry on and about (his) person, a certain concealed deadly weapon, commonly called a pistol, with intent, with the pistol aforesaid, unlawfully and maliciously, to do bodily harm to some other person, to the inquest unknown, &c.”
    The defendant pleaded “Not guilty.” The jury found the defendant “Not guilty, the defendant to pay the costs.”
    ' The defendant moved an arrest of judgment. The motion was overruled, and the defendant sentenced to pay the costs.
    The defendant removed the record to the Supreme Court, and assigned for error; sentencing defendant to pay the costs because, (amongst other reasons), sect. 1 of the Act of May 3d 1864, Parnph. L. 823, 1 Br. Purd. 323, pi. 40, prohibiting the carrying of concealed deadly weapons, &c., in Schuylkill county, and sect. 62 of Act of March 31st 1860 (Criminal Procedure), Pamph. L. 445, 1 Br. Purd. 390, pi. 65, allowing a jury to impose costs on a defendant who is acquitted, are unconstitutional; and because the indictment was defective in not setting out a criminal offence.

      J. Wright, p. p., plaintiff in error.
    Cr. R. Kaereher, District-Attorney, for Commonwealth, was stopped by the court.
    March 8th 1875,
   Judgment entered in the Supreme Court,

Per Curiam.

This indictment is for the offence of unlawfully and maliciously carrying upon the person of the defendant, a concealed deadly weapon, to wit, a pistol, with an intent, unlawfully and maliciously, to do bodily harm to another, contrary to the Act of 5th May 1864, section 1, 1 Brightly 323, pi. 40. Such an unlawful act and malicious intent as this has no protection under the 21st section of the Bill of Rights, saving the right of the citizens to bear arms in defence of themselves and the state.

The objection to the imposition of costs, on the ground that a verdict of not guilty was rendered, is equally futile. We must presume the jury had a good reason for doing so, arising in the conduct of the defendant. And even if the indictment had been so defective that no conviction could have rested upon it, still the right to impose costs existed. This jvas expressly decided, and good reasons stated for the decision, in the Commonwealth v. Tilghman, 4 S. & R. 127.

Sentence of the Quarter Sessions for the costs affirmed.


author: Chief Justice Agnew

text:
    Brown versus Schock.
    1. Brown as endorse^ sued defendant on a note given to Simpson for a patent machine which was a fraud. The defence was that Brown was a participant in the fraud, having travelled with Simpson and aided him when he procured the notes of defendant and several .others of the same kind. The question was as to Brown being the same person who had travelled, &c., with Simpson. Held, this was a question for the jury, to be proved by circumstances, as any other question of identity.
    2. Rules of evidence are the same in criminal and civil cases, if they pertain to questions the same in their nature.
    3. Circumstantial evidence in this case was for the jury on the question of identity.
    March 2d 1875.
    Before Agnew, C. J., Sharswood, Williams, Mercer, Gordon and Paxson, JJ.
    Error to the Court of Common Pleas of Schuylkill county: No. 198, to January Term 1874.
    This was an action of assumpsit, brought to June Term 1869, of the court below, by Wesley Brown against Adam Schock. The plaintiff sued as endorsee of the following note:

      “ $125.00. Schuylkill Tp., Sept. 4th 1867.
    Six months after date, I promise to pay E. D. Simpson, or order, $125, for value received, with interest, waiving the right of all valuation, appraisement, stay and exemption laws.
    Given for Geo. W. Benton’s Patent Washing-Machine, township Schuylkill. Adam Sci-iook.”
    Endorsed: “E. D. Simpson.”
    The defence was that the payee had fraudulently obtained the note from the drawer with the knowledge and by the aid of the plaintiff.
    The case was tried May 7th 1873, before Pershing, P. J.
    At the same time, and by the same jury, a suit between the plaintiff and Conrad Reitler was tried. The cause of action was on a precisely similar note, and the defence was the same.
    The principal question in the cases was the identity of the plaintiff with the person who aided the payee in perpetrating the fraud on the drawer of the note.
    At the trial, the defendant admitted that the signature to the note was his, reserving the right to show that the note Avas not in the same condition as Avhen signed. The plaintiff admitted that the washing-machine for Avhich the note Avas given was worthless to the defendant, and that the consideration for the note entirely failed.
    The plaintiff gave the note in evidence and rested.
    The defendant testified, that on the 4th of September 1867, two men came to his house in a two-horse carriage — Simpson, the payee in the note, was one of them. He got out of the carriage and offered to sell defendant a washing-machine; defendant declined to purchase. He then asked defendant to become agent for selling the machines, and if defendant became agent, he should have half the profit. After further solicitation, the defendant consented to become agent. Simpson then dreAV up a paper that defendant was not to pay anything till he had sold §250 worth of machines. Pie then gave defendant a paper that he Avould be back in six months, and if defendant could not sell any machines, he would take all back without cost. “ He then drew up an agreement ; in that was mentioned I Avas to pay §125 to him as his half, provided t sold §250 worth; because he said I need not pay anything till I sold §250 worth, I signed it, or else I would not have signed it. * * * I don’t know the name of the man who stayed in the carriage. I did not ask Simpson nor the man himself. * * * The agreement by Avhich I was not to pay till I sold §250 worth of machines, and the note I signed, were all one papep.”
    Printed papers were shown to defendant, Avhich he said were like those which were shown him.
    One of them retained by defendant, and given in evidence in connection with defendant’s testimony, Avas as follows:
    “ Receipt of Membership.
    Sept, 4th 1867.
    “ Received of Adam Schock one hundred and tAventy-five dollars, for the right of Greo. W. Benton’s Improved Washing-machine, patented April 30th 1865, for, to and in the toAvnship of Schuylkill, county of Schuylkill and State of Pennsylvania, for which this is a full and sufficient receipt. É. D. Simpson.”

      “ September 4th 1867.
    “I hereby agree that the said Adam Schoek need not pay for the said township until the profits on the said township are two hundred and fifty dollars, or more; and if, after trying six months, he wants, I will take it back free of charge, if he uses due diligence. E. D. Simpson.”
    The defendant then called Christian Koch, and proposed to prove by him, that’upon the next day (Sept. 5th 1867), after the transaction with the defendant, the same E. D. Simpson was in company with another person driving a two-horse team, selling the same patent-right in township rights, using the same printed agreements and receipts and forms of notes, and that the name of the other person who was with said Simpson was there given as Mr. Brown, and that he answered that name and entered the house of the witness as that person, and that this occurred within five miles of defendant’s. Offered for the purpose of connecting the plaintiff with E. D. Simpson, the payee of the note in this suit, and for the purpose of showing that the plaintiff had knowledge of the transaction between the defendant and payee of note, and is therefore a party to the fraud alleged.
    The plaintiff objected to the offer; it was admitted and a bill of exceptions sealed.
    Witness testified: “ I live in East Brunswick. I know about E. D. Simpson. He was there 5th September 1867. There were two in the carriage. One wrote his name on the paper as E. D. Simpson. Simpson called the other one Mr. Brown. The one called Brown was not off the carriage till Simpson called him off. Everything was done; they were ready to leave ; the witness and papers were done ; they were ready to leave the house.;* * * He turned around and said, ‘ Mr. Brown, come in.’ That is the way he came to name him ; Brown got off the carriage, fastened the horses, and followed Simpson into the room. (Paper shown witness.) This is my signature. It was signed the day it was dated. It is not the same as when I signed it. There was more paper attached to it. (Paper shown witness.) This paper was given to me at the same time; the man called himself E. D. Simpson.” (Paper shown witness.)
    The papers shown to witness, and identified by him, were a note from himself to Simpson, and “ Beceipt of Membership,” in same terms as those of defendant. Also a “patent deed,” elated September 5th 1867, signed “ Greo. W. Benton,” yvith his seal, witnessed by “ Lorretta D. Koch,” conveying to Christian Koch, Jr., the right to sell and use the patent washing-machine in New Brunswick township ; the consideration was $125.
    The defendant then offered these papers in evidence to show that they were the same forms as those used in the transaction with defendant, E. D. Simpson being one of the same persons.

      The plaintiff objected to the offer ; it was admitted by the court and a bill of exceptions was sealed.
    Defendant then called Abram Sheip, and offered to prove by him the same facts as those testified to by Christian Koch, to show the identity of the plaintiff.
    The plaintiff objected to the offer; it was admitted by the court and a bill of exceptions was sealed.
    The witness testified: That parties came to him in West Brunswi ck township, Schuylkill county, to sell a patent-right; it was in September 1867, the day he signed the note to E. D. Simpson; there were two in a carriage with two horses. “ The name Brown was used there, but I don’t know whether he called him Wesley Brown. * * * I was to pay nothing till I sold enough to make $150 or $200; half was to be mine and the other half he was to get. I signed papers to that effect. (Papers shown.) He left this paper with me. (Note shown.) I signed this note; when I signed it I think it was a foot length; on a sheet of paper.”
    The note of this witness was dated September 7th 1867. The other papers were substantially the same as the former papers.
    It was admitted that the plaintiff in this case was plaintiff in suits against Koch and Sheip on their notes.
    W. E. Shepherd, Esq., of counsel with plaintiff, testified that plaintiff resided in Allegheny county, New York; the case was continued several times for the purpose of plaintiff being at the trial. “ I notified him of the times when this case and Reitler’s were on the list, and desired him to be present; Brown is not here. I informed him what the witnesses said in the Sheip case. Brown’s answer was it was false, and the reason he was not here was, after due deliberation on the evidence adduced before, I did not consider it legal evidence, and as he-was engaged in business and it would be a loss to him to come here, I informed him in my opinion it was not necessary for him to come ; that the'evidence was illegal. I knew the court had admitted all these papers in the Reitler case before I gave Brown the information.”
    John Boyer testified that he was at defendant’s when two men with a carriage and two horses wrere there with the washing-machine. One, who was in the house, called himself E. D. Simpson ; he asked witness to put his name to the paper as witness.
    Defendant rested.
    The plaintiff gave in evidence the deposition of Simeon Anthony, the father-in-law of plaintiff. He testified that he saw E. D. Simpson endorse to plaintiff notes given by Sheip, Adam Schock and Conrad Reitler, and deliver them to plaintiff; it was done October 5th 1867; he saw the consideration for the sale of the notes to plaintiff paid by him to Simpson; it was 80 per cent, of the face of the notes; both Simpson and plaintiff resided in Almond, Allegheny county, New York; there were then ten other notes of the same kind, the drawers of which the witness named, sold to Brown at the same time and endorsed by Simpson; there were no printed agreements to the notes when sold, and none cut off in the presence of witness.
    There was evidence by a number of witnesses that the plaintiff was in Almond on the 4th, 5th and 7th of September 1867.
    M. L- Major testified that in September 1867, he was in Schuylkill county, employed by Simpson and E. K. Robinson, selling Benton’s washing-machines. • He effected sales to Abram Sheip, Adam Schock and Conrad Reitler; the sale to Schock was made September 4th, the others September 7th. Robinson was with him when he effected the sales, and all gave their notes payable to Simpson’s order. The plaintiff was not with him at the time of making any of the sales.
    The following are points of plaintiff, with their answers:
    2. There has been no legal identification of the plaintiff in this suit as to his connection with the negotiation and sale of the washing-machine or patent right to the defendant; that, although the consideration failed between the original parties to the note, yet no knowledge has been traced' to the plaintiff of said failure of consideration before the taking of the note by him from Simpson, or at the time of the taking of the note and it being proved by the plaintiff, which proof is uncontradicted in the cause, that he gave consideration for the note, and that it passed to him before maturity, he is entitled to recover the full amount of the note, with interest from date.
    The court answered:
    “We cannot affirm this point in terms, as that would be to take questions of fact from your consideration. We have said to you that the identification of Wesley Brown, as one of the parties present when the notes were made, is very slight, and that he has a right to recover, if an innocent holder for value; that he gave value is in evidence before you.”
    3. The rules of evidence, established by the decisions of the Supreme Court, allowing great latitude in questions of fraud, have no application in the case at issue against the plaintiff, he having in no way been identified as having connection with it.
    The court answered:
    “ We cannot answer this point affirmatively. If you find the plaintiff has in no way been identified with the fraud of Simpson, your verdict should be in his favor.”
    4. Even though the evidence on the part of the defendant should be considered as tending to identify the plaintiff, it would be only primá facie, and after the evidence given by the plaintiff in this case without further proof on the part of the defendant, the plaintiff is entitled to recover.
    The court answered:

      “We decline to answer this point as requested. The whole evidence on this subject is for your consideration. We have already stated where we think the weight of the evidence lies.”
    6. Under all the evidence in the case, the plaintiff is entitled to recover.
    The court answered this point in the negative.
    The court charged: * * * “It is agreed that the consideration for these notes as between the original parties entirely failed, and had suits been instituted by Simpson against these defendants, he could not have recovered under the evidence in these cases. That a fraud ivas perpetrated upon Schock and Reitler is not disputed. Wesley Brown, however, claims to recover in these actions on the ground that he is an innocent holder of these notes for value, and if he is, he should have your verdicts, however gross the fraud perpetrated by Simpson upon these defendants. If Brown was not a party to the fraud, and knowledge of it was not brought home to him before, or at the time he claims to have purchased these notes, ho has the right to recover. The taking of a negotiable note under circumstances which ought to excite the suspicion of a prudent man, was held in Phelan v. Moss, 17 P. E. Smith 59, not sufficient to prevent the recovery of a boná fide holder for value; nor will gross negligence avail to defeat an innocent holder for value, as held in State Bank v. McCoy, 19 P. E. Smith 204: It is claimed on the part of the defendants that Wesley Brown was along with Simpson at the time these notes were given and was therefore a party to the fraud.” The court then recapitulated the evidence bearing on the question of the identity of the plaintiff with the man who was with Simpson, and proceeded:
    [“ The direct evidence of identification is very slight and is met by the depositions of six or seven witnesses, who state that on the 4th, 5th and 7th days of September 1867, Wesley Brown was at home in Almond, Allegheny county, New York. The weight of evidence therefore is that Wesley Brown was not in the county of Schuylkill on the dates at which the notes payable to E. D. Simpson were given.] The deposition of M. L. Major was also read on the part of the plaintiff to show that Wesley Brown was not in this county at the time the notes were given. Major states that he was in Schuylkill county in September 1867, part of the time in company with a man by the name of Robinson ; that he, Major, sold washing-machines to Schock, one of the defendants, on the 4th of September; and to Reitler, the other defendant, on the 7th of September, that he took the notes from the parties, and cannot recollect that any one was with him; that Wesley Brown was not along. This evidence is in conflict in some of its statements with other evidence in the case. The other witnesses swear that two men were along when the notes were given; the one called himself E. D. Simpson, in whose name the notes were taken, and John Boyer testifies that he happened to come to Koch’s when the two men were there, and at Simpson’s request he witnessed one of the papers. It would rather appear either that Major was not here at the time he mentions, or if in this county he went by some other name than that of Major.] * * * You have heard the statement of Mr. Shepherd, counsel of Mr. Brown, voluntarily made, as to the reason of Mr. Brown’s absence. Mr. Brown is himself a lawyer, as appears by the evidence, and therefore capable of deciding on the advice given him by his attorney. He had a right to follow that advice. It may be a matter for regret that he has not appeared here, as, had he seen proper to come and testify, the question of identity would in all probability have been satisfactorily settled.”
    The jury found for the defendant.
    The plaintiff took a writ of error, and assigned for error:
    1-4. The answers to the points.
    5-7. The rulings on the questions of evidence.
    8, 9. The parts of the charge in brackets.

      W. F. Shepherd (with whom was J.' Filis), for plaintiff in error.
    —The question of identification was a preliminary one, to be determined by the court: Cornfield v. Parsons, 1 C. & M. 730; 1 Phillips on Ev. 6; Whitelock v. Musgrave, 1 C. & M. 510.

      O. P. Bechtel (with whom was W. B. Smith), for defendant in error.
    Facts bearing such relation to a transaction as are calculated to persuade as to the question of fraud, are admissible: Stauffer v. Young, 3 Wright 455; Maples v. Browne, 12 Id. 458; Stevenson v. Stewart, 1 Jones 307. The question is whether the evidence can throw light on the transaction: Heath v. Page, 13 P. F. Smith 108; Angier v. Angier, Id. 451; Simons v. Vulcan Oil Co., 11 Id. 202; Woods v. Gummert, 17 Id. 136; Caldwell v. Boyd, 7 Id. 321.
    March 8th 1875.
   Chief Justice Agnew

delivered the opinion of the court,

The question in the court below was upon the competency of the evidence contained in the bill of exceptions. Was Brown, the plaintiff, the same person as the man called Brown, who accompanied Simpson in his rounds while perpetrating a series of frauds upon citizens of Schuylkill county ? This was a question of fact for the jury, and might be proved by circumstances, just as in any other question of identity. The.rules of evidence are the same in criminal and civil cases when they pertain to questions which must be the same in their nature. Whether a particular man perpetrated a fraud or a crime, is an inquiry precisely the same in its nature in all cases, to wit, a natural conclusion from the facts proved. In the proof of the circumstances from which the conclusion is to he drawn, the evidence must often proceed step by step. No one witness may be able to prove all the facts, or, indeed, more than a single fact. Hence, to exclude every fact or circumstance because it does not of itself make out the proof, is simply to decide that circumstantial evidence cannot exist in the case, where the purpose is to prove identity. Here we have a case where two men passed through the country selling a patent right for a washing-machine, riding in the same two-horse-carriage, and using certain blank forms as the instrumentality for perpetrating their frauds. One of these called his fellow Brown on two separate occasions, and under circumstances tending to show that the name rose spontaneously to his lips. The plaintiff bears the same name, and is found in possession of the fruits of the fraud. He accounts for this possession by a formal transfer from Simpson, a known confederate with the man Brown, who was with him, The witness called to prove the transfer, is his own father-in-law, and the account he gives is, that Simpson brought in fourteen or fifteen of those notes, asked Brown to buy them, and said they were good. Brown said he was willing to buy good notes; took them all without inquiry into the circumstances of the drawers; paid eighty per cent, for them, and did not protest the notes to hold the endorser. Then Brown brings suit on some of them. The evidence of identity was objected to, is received by the court, and Brown is so informed by his counsel, and this case is continued several times to procure his attendance. He refused to appear, and his refusal is put now on the ground that he Avas informed by his counsel, and believes himself, that the testimony of his identity was illegal. Supposing that to be an honest opinion, yet it did not detract from the primá facie effect of his declining to appear as evidence against him. If he had a strong- motive to appear and would not, he leaves himself open to suspicion. The question is not upon his right to stay away, but upon the motive which may have caused his absence. A man of ordinary intelligence must know that his failing to appear when he had a strong motive to appear, would be evidence against him. If he relies upon his ability to disprove the motive imputed, he takes the risk, but he leaves the effect of his conduct,'as a matter of evidence for the opposite side, to go to the jury, Avho must Aveigh both sides to determine the real motive._ If he knew he was not the Brown who accompanied Simpson, the accomplice, his motive was very strong to appear, and by his'presence convince the Avitnesses that he is not the same person called Brown, who accompanied Simpson. Omitting to do that by which he could at once dissipate doubt, he leaves his motive to be determined by the jury, assuming the burden of disproving it by his rebutting testimony. Therefore, we cannot say the circumstances, as evidence for the defence, are to be taken away from the jury. In such a case, it is evident there can be no difference, because the note is negotiable. The evidence here does not concern the note, but the identity of the person holding the note. Herein is the precise difference between this case and Phelan v. Moss, 17 P. F. Smith 59. There the question was whether the bona tides of the holder were destroyed by taking the note at a large discount under suspicious circumstances. Here the question is whether the holder is the identical person who aided in the perpetration of the fraud which avoids the note. In the former case it was a question of mere good faith in the purchase. Here it is the identity of the person who committed the fraud itself. Here the manner of purchase is only a link in the series of facts tending to prove that the holder is one and the same person with the one who committed the fraud.

In a question of circumstantial evidence, the proof derived from the circumstances is a question of natural presumption, and is to be found by the jury. The strength of this proof depends on the probability resulting from the facts. The presumption thus arising, being a natural one, is to be determined necessarily by the jury, and not by the court. It is the right of the party to have this submitted to the jury, unless it be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances. If in such a case as this we say that all the combined circumstances afford no evidence, we take from the party the right of trial by jury, aright of the utmost importance in a matter in which the natural instinct and judgment of men are the legal and constitutional right of a party.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Whitney versus Moore.
    1. Whitney levied on goods under an execution against Bracken; Moore claimed the goods. In an issue under a sheriff's interpleader between Whitney and Moore, evidence that, after framing the issue, goods of Moore, alleged to be the same, were sold under an execution against him and bought by Whitney, was inadmissible on behalf of Moore.
    2. Such evidence could throw no light on the ownership of the property at the time of the levy under Whitney’s execution.
    March 2d 1875.
    Before Agnew, C. J., Si-iarswood, Williams, Merour, Gordon and Paxson, JJ.
    Error to the Court of Common Picas of Schuylkill county: Of January Term 1873, No. 178.
    This was a feigned issue, under the Sheriff’s Interpleader Act, made up January 8th 1868, to March Term 1868, of the court below, between William D. Moore et al.. plaintiffs, and Lawrence F. Whitney et al., defendants.
    Prior to January 1867, John H. Bracken, by virtue of a sheriff’s sale, had become the owner of a coal lease of the Charter Oak Mutual Coal Company, including the fixtures and personal property used about the colliery. On the 11th of February 1867, Bracken, for the consideration of $10,000, by writing under his hand and seal, sold an undivided one-third of the lease, fixtures, &c., to William D. Moore. On the 1st of November 1867, by a similar writing, he sold the remaining two-thirds of the colliery, &c., to Moore.
    To December Term 1867, Whitney, one of the defendants in the issue, obtained two judgments against Bracken, amounting together to $8091.55, and on the 17th of December 1867, issued executions on them to March Term 1868. Under these executions, the sheriff levied, amongst other things, on mules, cars, iron, &c., as the property of Bracken. The property was claimed by Moore,' and, on the application of the sheriff, this issue was framed.
    The issue was tried April 23d 1872, before Walker, J.
    The plaintiff gave in evidence the writings conveying the coal-lease, fixtures, &c., to him as, above stated.
    He then offered in evidence execution — Morgan to the use of Oliver against Moore, issued June 12th 1868, No. 39, to September 1868 — and return of sheriff, “Leasehold fixtures, &c., sold to Whitney for $12,000also execution — Amerling to the use of Oliver against Moore, issued June 16th 1868 — to which the sheriff returned, “ Defendant’s personal property levied on and sold for $1200 as per fi. fa., No. 39, to September 1868.”
    The defendant objected to the offer; it was admitted by the court, and a bill of exceptions sealed.
    Plaintiff then offered landlord’s warrant for $591.23 rent, issued against Bracken, and sale under it of divers articles of personal property to Whitney, the defendant. This offer was objected to by defendant, admitted by the court, and a bill of exceptions sealed.
    There was evidence that the property sold under the executions and landlord’s warrant was the same as that purchased by Whitney under his executions.
    The defendant gave evidénce for the purpose of showing that the sale of Bracken to Moore was colorable and fraudulent as to creditors.
    The court charged:
    “ Under the ruling of the court upon the first offer of the plaintiff, the whole case turns upon a question of law. If you believe the evidence as admitted by the court in that offer, that L. F. Whitney purchased tbe articles in question as the property of William D. Moore, at public sale, and the other evidence in the cause, then for the purpose of this case we direct you to find a verdict in favor of the plaintiff, and we propose to dispose of that question (which is purely one of law) upon a motion for a new trial.”
    The verdict was for the plaintiff.
    A rule was granted to show cause why judgment should not be entered, for defendant non obstante veredicto.

    The rule was afterwards discharged, and judgment entered for the plaintiff on the verdict.
    The defendant took a writ of error and assigned for error the rulings on questions of evidence, the charge of the court and entering judgment for the plaintiff on the verdict.
    Cr. F. Faquhar and F. W. Hughes (with whom was L. Bartholomew), for plaintiff in error.
    The property levied on was in the custody of the law and could not be taken in execution, either as the property of Moore, Bracken, or any one else; and Moore’s custody of it was substituted for that of the sheriff: Bain v. Lyle, 18 P. F. Smith 60; Hagan v. Lucas, 10 Peters 400; 1 Troub. & H. Pr., part II., 903. It was Moore’s duty not Whitney’s to protect the property; Moore took no steps to prevent the sale; and having permitted Whitney to buy he cannot now take advantage of it: Woods v. Wilson, 1 Wright 384; Cuttle v. Brockway, 8 Casey 45.

      J. W. Byon and B. W. Cumming, for defendant in error.
    March 8th 1875.
   Mr. Justice Paxson

delivered the opinion of the court,

The evidence referred to in the first assignment of error was erroneously admitted. The executions were issued some months after the feigned issue had been ordered, and under them the leasehold and fixtures of the colliery had been levied upon as the property of William D. Moore, the plaintiff in said issue. The landlord’s •warrant was still later in point of time, and was issued against John N. Bracken. Whether the property purchased by Whitney at the sale, was the identical property that had been levied upon under his two executions, was a question of fact which, even in the view taken by the court below of the effect of the constable’s sale and purchase of the property thereat by Whitney, should have been submitted to the jury. There was some evidence that all of the articles specified in the narr. were not sold at the constable’s sale. But the radical error was in the admission of the evidence for any purpose. It could throw no light upon the question of the ownership of the property at the time of the levy under the executions of Mr. Whitney. This was the single issue before the jury. The conduct of Mr. Whitney in purchasing the property at the constable’s sale, may or may not estop him from recovering hereafter upon the interpleader bond, in case of a verdict in his favor upon the feigned issue. This record raises no such question. For the present it is sufficient to say that the inquiry into what became of the property, months after the issue was ordered, was wholly irrelevant.

Judgment reversed, and a venire facias de novo awarded.


author: Mr. Justice Mercur

text:
    Moyer’s Appeal.
    1. By the common law the receipt by a husband of his wife’s choses in action, was presumed to be a reduction of them to his possession, and this presumption could be overthrown only by proof of a positive, clear, precise and consistent intention to the contrary existing at the time of receiving them.
    2. The wife’s property must come into his possession quasi husband, or she takes as survivor instead of his personal representatives.
    3. Conversion of the wife’s property is not reduction into possession ; it is only evidence of it; and may be explained by other evidence negativing the intention of its having been reduced to possession, so as to .transfer the title to the husband.
    4. Declarations of the husband when receiving the wife’s money or choses in action, or afterwards, clearly evincive of his intent at the reduction into possession, are sufficient to repel the presumption of personal acquisition and establish the relation of trustee for the wife.
    5. In this case the husband in 1837 received the wife’s money from her guardian, promising then and afterwards that he would give her a note for it; on her importunity he gave her a note in 1850. In view of the mutual confidence arising from the marital relation the delay in giving the note, did not rebut the presumption that he received the money as trustee for the wife.
    March 3d. 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon and Paxson, JJ.
    Appeal from the Court of Common Pleas of Berks county: Of January Term 1875. In the distribution of the estate of Simon Moyer, assigned for the benefit of his creditors.
    On the 8th of March 1870, Simon Moyer assigned his estate to Peter D. Wanner, for the benefit of his creditors.
    The assignee, on the 23d of June 1871, filed an account of his administration of the trust. Wharton Morris, Esq., was appointed auditor to distribute the balance in the hands of the assignee. He found that, after deducting the expenses of audit, &c., the balance for distribution was $3748.07. Amongst the claims presented to the auditor, was that of Mary Moyer, wife of the assignor, upon the following note :
    “ $1780. April 1st 1850.
    “ I promise that I became indebted to Mary Moyer in the sum of $1780 — money that is current in Pennsylvania, and this I promise to pay when or to whom it may be assigned, with lawful interest, as a lien-note for the property for her inheritance money.
    “ With my hand and seal, Simon Mover, [l. s.]
    “Elizabeth M Hoch.”

      In support of this claim, S. Moyer, the assignor, testified before the auditor: * * *
    “ The first I got was about $1000; I did not get it all in one sum. Before spring had come, I got $800. Stanly Kirby paid it to me. In the spring I got the balance. I think I was married in 1836. Stanly Kirby was my wife’s guardian. My wife was seventeen or eighteen when I married her. My wife did-not want to let me have the money without a note. I told her I would give her a note, but I put her off. My wife gave Kirby a release. Before she released, she said she would not do it without I gave her a note, and I promised to do so. Kirby gave me the money, $800,. at his house. I gave her the note because I owed her the money. The $200 I got also from Kirby, the spring after I got the $800. I also paid that on account of the land. My wife and I agreed the note should be for $1780, at the time it was given; we reckoned out the interest on the amount I had received, and it all came to more than that; hut she was satisfied with that. She has had the note in her possession ever since. I paid on it occasionally; the payments are endorsed on the note. The reason I gave the note at the time I did, was, she had been insisting upon giving a note from the time when I got the money. At the time I gave the note, I had bailed some person at court. This made her restive, and she insisted absolutely on a note. She wanted to have a right for the money — a note (security) that would bind the land. While we were going over to the justice’s to get the money and release for it, my wife demanded a note, and I promised to give it to her. This was about 1837, and then I got the money.”
    Mary Moyer, the wife, testified :
    “ This note was given on the day it bears date. * * * There was some difficulty between us. He went bail, for whom I can’t say. Then we were agreed that the amount he received was $1000, at first, and that the interest would amount to this note. He really got something more than $1000. I think he got it in 1837. * * * The reason I did not take a note in 1837, when I gave him the money, was, he promised to do it, but did not. I was young at the time. Stanly Kirby was my guardian, and there he got it. I never saw the money. Can’t say for sure how much it was. It must have been $1000, something more, but whether he got it all at once I don’t know. * * * This was out of my first inheritance.”
    The auditor reported * * * “At the time of Mrs. Moyer’s marriage, her guardian, Stanly Kirby, had in his hands upwards of $1000 belonging to his ward, from her father’s estate. This money Moyer received from the guardian in several payments. It appears that Mrs. Moyer did not want her husband to have this money without a note, and refused to join in a release to her guardian, unless he would give her a note; that she constantly importuned him to fulfil his promise, but in his own words, he £ put her off,’ until, becoming alarmed by his having bailed some persons, she renewed her entreaties, and insisted positively on having a note, and then he gave the note on the day it bears date, the amount being made up of what he had received from Kirby, with the interest thereon added. Some interest was paid on the note, which Moyer says he had paid to keep it.alive.
    ££ The allowance of this note, is objected to on the ground that Moyer having received and used this money, there is nothing to rebut the presumption that he intended to assert an- absolute title to it. The auditor thinks the evidence is insufficient to repel this presumption. If Moyer liad given a note at the time he received the money, or even shortly afterwards, the question of intention would be easily solved, but this note was not given until some fourteen years afterwards. His wife, by her perseverance, made it impossible for him to defer the matter longer, without affecting the marital relations and disturbing its peace.” * * *
    The auditor rejected the claim of Mrs. Moyer.
    On exceptions by Mrs. Moyer to his report, the Court of Common Pleas, Hagenman, J., dismissed the exceptions, and confirmed the report.
    Mrs. Moyer appealed to the Supreme Court and assigned for error, the decree of the Court of Common Pleas dismissing her exceptions and confirming the report of the auditor.

      A. G. Green, for appellant.
    Moyer having got his wife’s money by a deliberate and clear agreement to repay to her, and that he would give her a note for it, it cannot be claimed that he received it under the purpose to hold it absolutely under his marital rights: Johnston v. Johnston, 7 Casey 454; Wesco’s Appeal, 2 P. F. Smith 195; Gicker v. Martin, 14 Wright 138; Wall v. Tomlinson, 16 Vesey 413; Timbers v. Katz, 6 W. & S. 290; Gray’s Estate, 1 Barr 327; Woelper’s Appeal, 2 Id. 71 ; Gochenaur’s Estate, 11 Harris 460 ; Bergey’s Appeal, 10 P. F. Smith 408.

      G. P. Baer, for appellee.
    The husband reduced his wife’s chose in action into possession, and this'being before the Act of 1848, his ownership was absolute: Tritt v. Colwell, 7 Casey 232. His will determined who should own her choses in action : 2 Kent 135; Siter’s Case, 4 Rawle 468; Timbers v. Katz, 6 W. & S. 290; Woelper’s Appeal, 2 Barr 71; Swoyer’s Appeal, 5 Id. 377; Clevenstine’s Appeal, 3 Harris 499; Nolen’s Appeal, 11 Id. 37.
    May 10th 1875.
   Mr. Justice Mercur

delivered the opinion of the court,

The common law gave to the husband an absolute right to his wife’s choses in action, if he reduced them to his possession during coverture. The receipt of them by him was presumed to be a reduction to his possession. That presumption could be - overthrown only by proof of a positive, precise, clear and consistent intention to the contrary existing at the time of receiving them.

While the law thus gave to the husband the right to reduce them to his own possession, it did not impose on him any obligation so to do. He could decline making this personal acquisition. It was a privilege he could waive and receive them for the benefit of, and in trust for, his wife. The property must come under his actual control and possession quasi husband, or the wife took as survivor instead of the personal representative of the husband: 2 Kent’s Com. 138. His receiving it as executor or as trustee is not a sufficient reduction of it to his possession to prevent its surviving to his wife: Baker v. Hall, 12 Vesey 497; Wall v. Tomlinson, 16 Id. 413.

This distinction has been repeatedly affirmed in this state. Conversion is not reduction to possession but only evidence of it. Conversion may therefore be explained by other evidence negativing the intention of its having been reduced to possession in such a manner as to transfer title to the husband: Hess’ Appeal, 1 Watts 255 ; Hinds’ Estate, 5 Whart. 138; Timbers v. Katz, 6 W. & S. 290; Gray’s Estate, 1 Barr 327 ; Woelper’s Appeal, 2 Id. 71; Gochenaur’s Estate, 11 Harris 460.

■ Declarations made by the husband at the time of receiving the wife’s money or choses in action, or afterwards, clearly evincive of the intent at the moment of reduction to possession, are sufficient to repel the presumption of personal acquisition by him, and establish the relation of trustee for the wife: Johnston v. Johnston’s Executors, 7 Casey 450; Gicker’s Administrators v. Martin, 14 Wright 138.

Noav, by the evidence of the husband himself the intent with which he received can be more satisfactorily established.

In this case the auditor found, that at the time of the marriage of the appellant, her guardian, Kirby, had in his hands upwards of $1000 belonging to her, from her father’s estate ; that her husband received this money from her guardian in several payments; that the appellant did not want her husband to have this money without a note, and refused to join in a release to her guardian unless he would give her one; that she constantly importuned him to fulfil his promise; but that he “put her off,” until, becoming alarmed by his having “bailed some persons,” she renewed her entreaties and he gave her the note, some thirteen years after he obtained the money.

The auditor omits to find the fact specifically whether the evidence does or does not show clearly, distinctively and positively, that Moyer received the money under an agreement made at the time, negativing the presumption that he received it as his own property. Inasmuch, however, as the note was not given until so many years thereafter, and Moyer had received and used the money, he infers the evidence is insufficient to rehut the presumption that Moyer intended to assert an absolute title to it.' Looking then at the evidence which the auditor returned with his report, we discover this uncontradicted testimony in regard to Moyer’s agreement under which he received the money. He testifies “ my wife did not want to let me have the money, without a note; I told her I would give her a note, but I put her off; my wife gave Kirby a release. Before she released, she said she would not do it, without I gave her a note, and I promised to do so. Kirby gave mo the money, $800, at his house.” ' On being recalled, he testified further, “while we were going over to the justice’s to get the money and release for it, my wife demanded a note, and I promised to give it to her; this was about 1837, and then I got the money.” He also testified, that he got $200 from Kirbv the spring after he got the $800.

Thus it appears, by the uncontradicted evidence of the husband, that he received this money not under or by virtue of his marital rights, but under his clear, distinct and positive promise to give her his note for it. It was a promise which he made immediately preceding his obtaining the first and principal part of the money. It was the agreement under which he received the whole of the money. It is true, he was not obliged to accept the money on those terms, but he consented to do so. He thus assumed a trust, by which in equity the money remained the property of his wife, although it passed into his actual possession. There is no act or declaration of either Moyer or his wife calculated to weaken this conclusion, save his delay in giving the note. We think that circumstance alone, wholly insufficient to overthrow the other evidence. The mutual confidence, existing between them, undoubtedly delayed giving the note. The facts found by the auditor, do not justify the legal inferences he drew therefrom, and the learned judge erred in confirming his report.

The receipts and release, given in evidence by the appellees, show the last money Moyer received was on the 24th of March 1837; he should therefore be chargeable with the $1000, and interest thereon from that date. ■ The assignment is sustained; therefore,

Decree reversed, and record remanded to the court below, for distribution, to be made conformably to this opinion, and it is ordered that the costs of this appeal be paid by the appellees.


author: Chief Justice Agnbw

text:
    Care versus Keller.
    1. The Statute of Limitations of 1785 applies to an action of dower, unde nihil habet. by a widow for property of which her husband had been seised, but which was aliened by him before his death.
    2. After conveyance the seisin of the grantee is in his own right and adverse to the grantor and his heirs. This is so as to a contract of sale and delivery of possession consummated by a decree of specific performance and conveyance.
    3. The estate is equitably converted by the contract, and specific performance under the decree relates back to the contract of sale in giving effect to the rights acquired under it.
    4. In January 1846 land was sold by contract, conveyance to be made the next April; in March vendor died, leaving a widow; the vendee took possession in April. The Orphans’ Court decreed specific performance of the contract in April 1847; the deed was made under the decree April 24th 1848. The widow brought suit for dower September 22d 1868. Held, that she was barred by the Statute of Limitations, possession having been taken under the contract in April 1846.
    5. The right of action of the widow accrued when the vendee, by some unmistakable act or declaration, after the death of the vendor, asserted his right under the contract and claimed the ownership of the land.
    6. Notice to the vendor’s representatives of the vendee’s intention to hold the estate, taking possession or being in possession itnd exercising unequivocal acts of exclusive ownership, would be such assertion of title as to give the widow a right of action; from that time her right would be affected by the Statute of Limitations.
    March 4th 1875.
    Before Agnew, O. J., Sharswood, Williams, Mercur, Gordon and Paxson, JJ.
    Error to the Court of Common Pleas of Berios county: Of July Term 1873, No. 7.
    This was an action of dower unde nihil habet, brought September 22d 1868, by Sarah Keller against Eli Keller and others, heirs of George Keller, deceased. The plaintiff having died, Nathan Care, her administrator, was substituted on the record. The defendants pleaded ne unques seisie que dower and the Statute of Limitations.
    The plaintiff claimed dower as the widow of John Keller, deceased, out of about 80 acres of land in Union township. John Keller died March 6th 1846, leaving the plaintiff to survive him ; she died in January or February 1870.
    The case was tried December 3d 1872, before Woodward, P. J.
    The pfaintiff gave in evidence a contract, dated January 12th 1846, between John Keller and George Keller, the ancestor of the defendants, for the sale to George of the 80 acres of land out of which the dower is claimed, for $950, of which $500 were to be paid on the 1st day of next April, and the remainder in two years from that day. On the 16th of February 1847 the administrator, &c., of John Keller, presented a petition to the Orphans’ Court, setting out the death of John Keller, the contract of sale with George Keller, -the payment by George of $350, part of the first instalment, to the administrator, and praying for specific performance of the contract. On the 9th of April 1847, the proof, &c., was adjudged sufficient and specific performance decreed. On the 24th of April 1848, the administrator, &c., of John Keller, in pursuance of the decree, made a deed to George Keller of the 80 acres.
    The plaintiff, having given evidence as to the annual value of the .land, closed.
    The defendants then called William Wamsher, who testified:
    “ John Keller died in 1846. After his death George Keller lived on 80 acres of land in Union township. John Keller died on this land in March, and George moved on in April. After he moved there, in April 1846, he lived there till his death, five years ago. Held exclusive possession and control of the land. John Keller’s widow lived there at the time of his death. She left when he moved in. George moved in on 1st or 2d of April 1846. The widow moved to a place about half a mile below. She was’nt there when he moved in. George was there as the owner of the property.”
    The court charged: * * *
    “ This action was brought to October Term 1868, more than twenty-one years after the date of the contract, but less than twenty-one years from the date of the deed executed by the administrator of John Keller.
    “ The court do not propose to embarrass the jury by a discussion' of the various questions which have arisen in the course of this cause. They will confine themselves to the practical points presented for deliberation and decision. In the first place, does the Statute of Limitations apply to an action of dower. The second section of the Act of the 26th of March 1785, is in these words: ‘ From henceforth no person or persons whatsoever shall make entry into any manors, lands, tenements or hereditaments after the expiration of twenty-one years next after his, her or their right or title to the same first descended or accrued, nor shall any person or persons whatsoever have or maintain any writ of right, or any other real or possessory writ or action for any manor, lands, tenements or hereditaments of the seisin or possession of him, her or themselves, his, her or their ancestors or predecessors, nor declare or allege any other seisin of him, her or themselves, his, her or their ancestors or predecessors, than within twenty-one years next before such writ, action or suit so hereafter to be sued, commenced or brought.’ This language is certainly broad enough to include any suit brought to recover the possession of land. Before the Statute of Merton, nothing but land could be recovered in dower. Since the statute, it could hardly be claimed that the action would remain a real one where the husband should die disseised, when the widow would be entitled to an assignment of one-third by metes and bounds, and would become a personal one where the husband should die seised, when the widow could take damages equal to one-third of the annual value. The ground has been taken that the statute should not apply because the words ‘ancestors or predecessors’ would be incongruous if used in reference to a tenant in dower. But it was not the purpose of the legislature to define the status of a tenant of the freehold of any class. It was ‘ the seisin or possession’ of the tenant under whom title should be asserted, in regard to which the law was framed. The claimant was to be barred if the suit had not been commenced within twenty-one years after the previous ‘ seisin or possession’ had come to an end. Although the husband dying seised, the claim of the widow is for money, yet it is for an interest in land, — it is, at least, a right issuing out of land, — and it is founded directly upon the preceding ‘ seisin or possession’ of the husband, extending down to the very hour of his death. Nothing could indicate more clearly the uniform judicial, professional and popular conception of the nature of this action than the provisions of those sections of the Act of the 13th of June 1836, relating to the commencement of real actions : sects. 79, 80, 81, 88, Pamph. L. 587, 1 Br. Pui-d. 55, 56, pi. 1-4, title, ‘Actions Real.’ This act wa.s drawn by the commissioners appointed to revise the civil code, and was passed by the legislature in the words in which it was reported. The sections referred to regulated the practice of the courts in ‘ actions of dower, partition, waste, ejectment, nuisance and all other pleas of land.’ ‘ With us,’ said Bell, Jl, in Jones v. Patterson, 2 Jones 149, ‘ dower is strictly a real action, originating in, and proceeding upon the principles, and according to the forms of the common law, and is so treated by our legislation in respect of it;’ and reference was then made to the Act of 1836. In Culler v. Motzer, 13 S. & R. 356, while the material question was whether the Statute of Limitations ran against a widow’s claim of dower during coverture, or only commenced to run at the date of the husband’s death, it was assumed as settled and undisputed that the statute applied to the action. The suit was on a bond for the purchase-, money of land conveyed with covenants of warranty, and defence was made on the ground of defect of title, and an outstanding claim of dower by the widow of the grantor. Justice Duncan, delivering the opinion of the Supreme Court, said: ‘ If the enSry and possession had been adverse to the husband’s right, and his right of entry had been barred by the Statute of Limitations, the widow’s dower would have been barred. Our Act of Limitations comprehends as well all possessory actions, as all legal actions.’ The same view of the subject was taken in Rankin v. Tenbrook, 6 Watts 388. The case of Culler v. Motzer, it is admitted, does not amount to an authoritative decision of the point in issue. But it certainly indicates settled professional opinion in regard to it, and it is not known that in any case any rule has been established to weaken its effect. In Jones v. Powell, 6 Johns. Ch. 194, the general subject was discussed by Chancellor Kent. The New York statute had declared that ‘ no action for the recovery of any lands should be maintained unless on a seisin or possession of the plaintiff or of the ancestor or predecessor of the plaintiff, within twenty-five years before such action brought.’ The chancellor said: ‘ As far as the widow’s action at law belonged to the class of possessory actions, founded on the right of entry, it would have fallen under the same limitation as an action of ejectment, and as far as it partook of the nature of a writ of right, it would seem to fall within the limitation of twenty-five years applicable to the writ of right. * * * The general and sweeping language of the act, no less than the sound policy of it, would dictate the application of it to the action of dower, as well as to any other real action.’ It is true the judgment in Jones v. Powell, was controlled by another statute, but the courts of the country have never been accustomed to treat the carefully-considered utterances of Chancellor Kent as conjectural diota. The authorities collected in 2 Scribner on Dower 523-543, show that the general rule in the different states of the union is to hold Statutes of Limitation, similar to that of Pennsylvania, as applicable to dower. And, generally, where dower is held not to be barred, it is in states that have adopted, or re-enacted the provisions of the English statute of 32 Henry VIII., ch. 2, and have modeled their practice upon the precedents under that statute of the English courts. [It is believed that upon principle and authority the action of dower falls within the limitation of the Act of 1785.]
    “ This conclusion reached, a single inquiry remains. In the circumstances of the present case, ought the bar of the statute to be applied ? The view of the plaintiff is, that John Keller died seised, inasmuch as he retained the legal title and died in possession ; that upon his death.there was no tenant of the freehold upon whom a writ in an action of dower could have been served; that the widow had no remedy in the Orphans’ Court, because, although her husband died seised, his interest in the land had been converted into personalty by virtue of the contract; that George Keller became tenant of the freehold, so as to he liable to the widow only when the conveyance was made to him under the decree for specific performance, on the 24th of April 1848, and that, consequently, the action, having been commenced within twenty-one years from the date of the conveyance, the defence of the statute cannot be sustained. If this theory is to be taken as true, without qualification, it would follow that a widow in the position of Mrs. Keller could bring no suit for fifty years, if a vendee, satisfied with his contract, and possession under it, should pay the purchase-money, and leave the legal title in the vendor’s heirs. It is manifest that the problem presented must be solved in some other form than this.
    “ The general rule of law in Pennsylvania is that the action of dower cannot be maintained where the husband dies seised and in possession, the remedy of the widow being in the Orphans’ Court: Thomas v. Simpson, 3 Barr 60; Taylor v. Birmingham, 5 Casey 306. But the rule has been made subject to some peculiar modifications, in consequence of the importance that has always been attached here to equitable estates, and of the effect that has always been given to alienation by contract. This is illustrated by the cases of Riddlesberger v. Mentzer, 7 Watts 141, and Covert v. Hertzog, 4 Barr 145. In each of those eases suit was brought after probate of the contract and execution of the deed. In neither case does it appear from the report whether the action was for land in severalty, or fot damages. It is of course indispensable in the present case that John Keller should legally appear to have died seised. Otherwise the action, being for damages, could not be sustained, and if he was not seised, some vendee, grantee, or disseisor must have been tenant of the freehold, and in favor of such a tenant the statute would run from the time of the husband’s death. That there was such seisin in John Keller at the time of his death as to warrant an action for damages is shown by the case of Jones v. Patterson, 2 Jones 149. There, the husband of the plaintiff had sold by contract to Edward Hooper, and Hooper having died, the report states affirmatively that ‘ no deed was ever executed to the administrators in trust, or to the heirs of the said Hooper.’ Hooper’s heirs conveyed to Patterson, one of the defendants, by deed. Patterson sold to John Harvey by articles of agreement; and Harvey sold, apparently by contract also, to John Casporus, who was joint defendant with Patterson. The special verdict found, also, that Patterson had never been in possession of the land. The Supreme Court held the action of dower to be maintainable as against both of the defendants. [The conveyance of the legal title, therefore, is not indispensable to give the widow the right to sue.] When, then, .does this right accrue? It would seem reasonable to answer, [when the vendee, by some unmistakable declaration, or some unmistakable act, made or done after the death of the vendor, has asserted his right under the contract, and has claimed the ownership of the land.] [Notice of his intention to hold the estate,given to the vendor’s legal and personal representatives, the taking possession of the property, or, being in possession, the exercise of unequivocal acts of exclusive ownership would be such assertion of title as to give the widow her right of action, and from that moment her right would be affected by the Statute of Limitations.] Here, under the testimony of William Wamsher, it is claimed, on behalf of the defendants, that George Keller entered into the possession of this land about the 1st of April 1846, within a month from the time of his father’s death — that the widow left the premises before he moved in, — that he claimed exclusive ownership, and exercised exclusive control over the property, and that his possession under the contract was under a claim of right as definite as it afterwards was under the deed of the administrator, made in April 1848. The credibility of testimony is for the jury. [If after Creorge Keller’s entry on the land, his possession and claim of title were so significant and unmistakable as, in view of the rules stated by the court, to give notice to the widow of his assertion of title, an .action of dower could have been maintained by her, and if this entry was made more than twenty-one years before the action was commenced, the Statute of Limitations, would be a bar to a recovery.”]
    The verdict was for the defendants.
    The plaintiff sued out a writ of error and assigned for error the parts of the charge in brackets.

      A. G. Green (with whom was Louis Richards), for plaintiff in error.
    The Statute of Merton, 20 Henry III., ch. 1, provided that a widow should recover damages in her suit of dower from the time of the death of her husband, when he died seised; and if not, then from the time of demand : Seaton v. Jamison, 7 Watts 535. As the Statute of Merton substituted damages in lieu of the right to have dower assigned by metes and bounds, the widow had no longer a right of entry, and the Statute of Limitations of 32 Henry VIII., ch. 2, which enacted that no person should make entry into any lands, &c., unless within threescore years, did not apply to the dower of the widow, as held consistently by the English courts : Angelí on Limitations, § 367 n.
    In the English law, the wife’s remedy by action of dower is not within the ordinary Statutes of Limitation, for the widow has no seisin; 4 Kent 70; Davenport v. Wright, Dyer 224 a; 1 Shep. Touchstone (by Preston) 28 ; Barnard v. Edwards, 4 N. H. 107 ; Park v. Obear, 7 Metc. 24; Wright v. Conover, 2 Halst. Ch. 482; May v. Rumney, 1 Mann (Mich.) 1; Boyle v. Rowand, 3 Dessaussure Ch. 355 ; Jones v. Patterson, 2 Jones 149; Shurtz v. Thomas, 8 Barr 359.

      G. F. Baer, for defendants in error.
    The Statute of Limitations includes real actions; dower is a real action: Jones v. Paterson, 2 Jones 149; and in Pennsylvania has always been treated as within the statute : Culler v. Motzer, 13 S. & R. 356; Rankin v. Tenbrook, 6 Watts 388; 2 Scribner on Dower 523-535.
    March 15th 1875.
   Chief Justice Agnbw

delivered the opinion of the court,

We are of opinion that the Statute of Limitations of 1785, applies to an action of dower unde nihil habet, brought by a widow for property of which her husband had been seised, but which he had alienated before his death. After conveyance the seisin of the grantee is in his own right, and is of course adverse to the grantor and his heirs. The same effect must be attributed to a contract of sale executed by delivery of possession, and consummated by a decree of specific performance and conveyance. The estate is equitably converted by the contract of sale, and the specific performance under the decree relates back to the sale in giving effect to the rights acquired under it. The court below was therefore right in holding the possession to be adverse from the time it was taken under the contract, for from that time onward the vendee under the articles held for himself, and not for the vendor, except so far as the retention of the legal title made the possession subject to the rights of the vendor to enforce the contract, and this was finally extinguished by the execution of the decree for specific performance. These questions are so well discussed, and the reasons stated in the charge of the learned judge below, it is unnecessary to say more.

Judgment affirmed.


text:
    Collins versus Freas.
    1. Suit was upon an award, judgment was entered for want of an affidavit of defence ; on affidavit that defendant did not owe plaintiff any sum whatever, the judgment was opened, without restrictions or conditions. The case was tried on pleas which struck at the root of the award. Held, that the record of the judgment was not admissible in evidence; the trial was to be had as if no judgment had been entered.
    2. The order in which evidence shall be given is generally in the discretion of the court.

      3. An award on a claim not submitted, and between persons not parties to the submission, is bad.
    4. A recital in an award of the submission is not proof of a submission nor of its terms.
    March 5th 1875.
    Before Aghew, C. J., Sharswood, Williams, Mercub, Gordoh and Paxson, JJ.
    Error to the Court of Common Pleas of Schuylkill county: Of January Term 1874, No. 50.
    This was an action of debt, brought February 9th 1871, by Hiram B. Freas and Margaret his wife, in her right, against Peter F. Collins.
    The action was upon an award which was filed with praecipe. On the 1st of May 1871, judgment was entered against the defendant for want of an affidavit of defence, and damages assessed at $2000. On the 26th of June the judgment was opened, and the defendant filed an affidavit of defence, “That he does not owe nor is he indebted to the plaintiff in any amount whatever.” He also pleaded, “No submission and no award,” and “ the award was not authorized by the submission.”
    The cause was tried September 3d 1873, before Walker, J.
    The plaintiff offered in evidence the record of the judgment in the case which had been opened. The offer was objected to by the defendant, admitted by the court, and a bill of exceptions sealed.
    E. T. Burke testified for the plaintiff, that the defendant asked him if he would act as arbitrator in a case between him and Ereas. Ereas chose G. G. Jacoby, and they two chose John Lazarus. The arbitrators met on the day appointed by the parties. Witness said'that a paper shown him was the award; that it was made on a statement from Mr. Marr. At the time the award was made, Marr, Jacoby, Lazarus and witness were present. Marr stated the claim was property in Shenandoah city, sold by Collins to Ereas. That was the only claim passed upon.
    The plaintiff offered in evidence the award, with statement on which it was based attached, viz.:
    “And now, to wit: September 9th 1870, we, the undersigned, E. T. Burke, of Ashland, George G. Jacoby, of Shenandoah city, referees, chosen respectively by Peter E. Collins and IT. B. Ereas, having met in Ashland, in accordance with our appointment, mutually chose John Lazarus, of Ashland, as a referee, and after being duly sworn according to law, and after due investigation and inquiry, do award in favor of H. B. Ereas and wife — in the right of the wife the sum of $1500, and against Peter E. Collins, as being the amount justly and properly due from Peter E. Collins to H. B. Ereas and wife.
    Signed by us, the above-mentioned referees.
    E. T. Burke,
    G. G. Jacoby.
    Johh Lazarus.”
    Then followed the statement, giving the items, and resulting in an indebtedness of $1500 of Collins to Ereas.
    Defendant objected, because the award was not in pursuance of the submission, and that it was incompetent and irrelevant
    The evidence was admitted and a bill of exceptions sealed.
    W. A. Marr, Esq., testified: “I vías present when the arbitrators were agreed on. Collins said: ‘ Now, Marr, Ereas and I have agreed to refer our differences to two arbitrators, each to choose one, and the two to choose a third,’ and they were to meet at my office. Ereas assented. Collins said, ‘ Whatever these men do, I am satisfied.’ The day was selected. Collins said, ‘ Marr, I cannot be there that day, and I want you to represent me.’ Ereas objected. I said ‘ I will not represent either', but if you will agree, I will make a statement before the refereesboth consented to that. The arbitrators met on the day appointed; I gave the arbitrators a statement; I went into the front office; they sat in the back office; I made out the award; they gave me the figures and told me to make it out. There was but one matter of dispute before the referees.”
    On cross-examination, he said : “The subject was in reference to property sold by Mr. Oollins to Mr. Freas and wife, in Shenandoah city. Freas could not carry out his contract, and Collins made arrangements, if he would give up that property, he would allow him something — Freas to have a smaller property. * * * He said he would not give up the smaller property, as his wife was to have it, and Collins agreed to allow him in money; * * * that is the understanding I got from both parties. I stated the same matter * * * to the arbitrators, and showed the figures of the different properties. * * * I have no interest in this claim. Freas owes me nothing. Did not tell Collins that I wanted the money to go through my hands, so that I could pay myself what Freas owed me.”
    Plaintiff here rested.
    The defendant testified he never made an agreement with Freas in right of his wife to refer matters between defendant and them to arbitrators. He further testified in direct contradiction of Mr. Marr.
    The defendant offered to testify that “ W. A. Marr, one of the plaintiffs’ witnesses, told him that he wanted him to pay the money in controversy to him (Marr), so that he might get it into his hands and apply it to a debt due from Freas to Marr or Marr Bros.” Objected to by plaintiff. Tbe offer was admitted for the purpose of showing an interest in Mr. Marr, but excluded for any other purpose; and a bill of exceptions was sealed.
    There was other evidence on both sides.
    The following are points of defendants with their answers:
    2. Under a submission the arbitrators can only consider the transaction submitted to them, and between the parties to a submission, and if the jury believe that Peter F. Collins, the defendant, agreed to submit a matter in controversy between himself and Hiram B. Freas, the award embracing a matter in relation to Margaret M. Freas is bad, and the verdict must be for the defendants.
    Answer. “ While it is true that the arbitrators can only pass upon matters submitted to them; yet if these arbitrators, in making up their award, included matters in controversy between Mr. Collins, Mr. Freas and his wife, it would be valid if the jury believe that it was the agreement and intention of the parties to this suit that they should do so, and that without regard to the circumstance, whether the money was due to Freas, or to Freas in right of his wife.”
    3. The recital of a submission in an award is no proof of its existence or terms, and if the jury believe that the submission was as to a matter in controversy between Peter F. Collins and ITiram B. Freas, the award embracing matters in relation to Mrs. Freas is void, and the verdict of the jury must be for the defendant.
    Answer. “ It is true that the recital of a submission in an award is no proof of its existence, and without a submission there can be no valid award, and as we have before said if the jury believe that it was the intention and agreement of the parties to this suit that the arbitrators should pass upon the claim of Freas and wife the award would be valid.”
    4. If the jury believe that the statement and proceedings of William A. Marr before the arbitrators was without the knowledge and authority of Collins, the reception of such statement by the arbitrators was such an irregularity as would vitiate the award, and the verdict must be for the defendant.
    Answer. “ Mere immaterial irregularities will not vitiate an award at common law. Both at common law and statute such an award is assailable for corruption or misbehavior. There is no allegation of that here. If Mr. Marr had no authority from Mr. Collins to represent him before the arbitrators, but did appear on his own motion, and if no prejudicial or improper act was done by him against the interest of Mr. Collins, that fact in itself would not be such an irregularity as would be sufficient to render the award invalid ”
    In the charge the court said:
    “On the part of the plaintiffs it is contended that as this judgment was opened on the affidavit of the defendant that he will not be allowed to avail himself of technical objections, but must rest upon the merits of his case.
    “ This is no doubt the law as a general proposition.”
    The verdict was for the plaintiff for $1768.75.
    The defendant sued out a writ of error.
    He assigned for error.
    1-3. The rulings on the questions of evidence.
    4, 5. The answers to the plaintiff’s 2d and 3d points.
    6. The ansiver to the plaintiff’s 4th point.
    7. The portion of the charge given above.

      Gr. E. Farquar and F. W. Hughes, for plaintiff in error.
    The record of judgment set aside is not evidence: Ridgely v. Spencer, 2 Binn. 70 ; Leeds v Bender, 6 W. & S. 318. When a judgment is opened without terms, the trial is to be had as if no judgment had been entered : Carson v. Coulter, 2 Grant 124; Dennison v. Leech, 9 Barr 165.
    The question to Marr on cross-examination as to his interest in the case was not collateral, but important to show the motives of the witness; he denying that he had made the statements as to which he was questioned, he might be contradicted: 1 Stark. Ev. 1351; Greenleaf's Ev., sect. 450 ; Gaines v. Commonwealth, 14 Wright 327. There is no evidence that any claim of Mrs. Freas was submitted to the arbitrators ; the dispute was between Freas and Collins only. The contract of reference would not bind her, and therefore as to her was not binding on the plaintiff: Addison on Contracts 21.

      J Ryon and J. W. Ryon, for defendant in error.
    The record of the judgment for want of affidavit of defence was proper to show that it was opened upon grounds that went to the merits ; and if proper for any purpose it was admissible: Kauffelt v. Leber, 9 W. & S. 93; Appleton v. Donaldson, 3 Barr 389 ; Chambers v. Lapsly, 7 Id. 24; Forster v. Shaw, 7 S. & R. 156; McKee v. Jones, 6 Barr 425. The defendant under the circumstances cannot avail himself of a technical objection: Eckel v. Snevily, 3 W. & S. 272. Every reasonable presumption will be made to sustain such an award: Hollingsworth v. Leiper, 1 Dall. 162.
    May 10th 1875.
   Mr. Justice Mercur

delivered the opinion of the court,

The first assignment is to the admission in evidence, of the record of the judgment previously taken in the case. The judgment had been opened generally. No conditions or restrictions had been imposed on the defendant therein. The pleas subsequently entered struck at the root of the award on which the action was founded, and denied the existence of any indebtedness; the trial then was to be had as if no judgment had been entered. The same burden of proof was imposed on the plaintiff. It gave to the defendant the same defences that were open to him at the commencement of the suit: Leeds v. Bender, 6 W. & S. 315; Dennison v. Leech, 9 Barr 164; Carson et al. v. Coulter et al., 2 Grant 121; West v. Irwin, 24 P. F. Smith 258. The record was therefore inadmissible. The language of the court in their charge to the jury in relation to it was further calculated to prejudice the case.

Regularly proof of the submission should precede the award; but the order in which the evidence shall be given is so far within the discretion of the court, that the second assignment is not sustained.

If the witness, Marr, was interested in having the award made in favor of Freas, and he, Marr, without the knowledge and authority of Collins, went before the arbitrators and influenced their decision, the evidence covered by the third assignment should have been received. His position was, in that case, not merely that of a witness whose answer to a collateral question cannot be contradicted, but a party to the alleged illegal award.

The fourth and fifth assignments will be considered together.

It seems to us too clear for argument, that in so far as an award is in regard to a claim not submitted to the arbitrators, and between persons not parties to the submission, it is bad. Nor can the mere recital, in an award, of' the submission, be proof of the existence of a submission, nor of its terms.

To the extent that the learned judge qualified his answers to the points covered by these two assignments we think he erred. The points should have been affirmed. The remaining assignments are not sustained any further than we have already stated.

Judgment reversed and a venire facias de novo awarded.