text:
    Foster versus McGraw.
    1. The court is to judge as to the proof of the execution of a deed, the question of alteration afterwards, is generally for the jury.
    2. Evidence of circumstances attending the execution of a paper and what the parties said whilst in the act of execution, may be received on the principle of explanation, not to vary the terms of the contract.
    3. When one who owes several debts to another makes payments and no appropriation be made by either party, the law applies them to the debt which is least secure.
    March 16th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Tioga county: No. 155, to July Term 1869. ■>

    This was a scire facias sur mortgage, issued August 18th 1866, by John McGraw against A. H. Foster and Farrington Barealow. The writ was served on Foster; no service was made on Barealow. The defendant pleaded, “Non est factum, payment with leave,” &c.
    The case was tried June 12th 1869, before White, P. J.
    The plaintiff offered in evidence a mortgage dated J anuary8 1st 1856, from the defendants to him, for $10,000, on lands in Chat-ham and Middlebury townships. The defendant objected to its admission on the ground that it had been altered since its execution. The evidence was admitted and a bill of exceptions sealed. Payments having been made on the mortgage, the plaintiff claimed $4140, with interest from January 1st 1862, and rested.
    The defendant gave in evidence an agreement between the plaintiff and himself, dated January 23d 1864, which recited, that certain suits in New York and Pennsylvania were pending' between them; that the plaintiff held a mortgage from Barealow and one from Barealow and the defendant jointly, which were liens upon real estate in Middlebury township; that the plaintiff held an agreement between him and the defendant reciting the mortgages and providing for their consolidation upon terms therein mentioned, on which agreement the suit in New York was founded ; and for the purpose of settling all matters in variance, the defendant agreed to pay the plaintiff $11,000 “ in full for all of -his demands upon the said real estate in Middlebury, including the mortgages above recited and the contract hereinbefore referred to, if paid as follows, viz.: $2000 in hand, and the remaining $9000 within thirty days from this date, with use. If the said $9000 be paid within the time specified, said McGraw agrees to assign to said Foster the said mortgages, and surrender the said above-mentioned contract to him; if not paid within the time specified, the $2000 paid in hand is to apply on the original indebtedness of said Foster to said McGraw. In mean time proceedings to stay on all suits pending between said parties: and if this contract be carried into execution within the time specified, then all suits pending are to be discontinued, and each party to pay his own costs,” &c.
    The defendant testified:—
    “No claims were taken into consideration in the settlement, except those referred to in the contract. The original indebtedness was the mortgage in this suit.”
    The defendant then gave in evidence the following receipts from the plaintiff:—
    “ Received of A. H. Foster, $2000, to apply on contract of this date, if balance on said contract be paid as therein provided ; otherwise to be applied on original indebtedness of said Foster to me.
    January 23d 1864.”
    “ $3000. Jersey City, April 21st 1864.
    Received of A. II. Foster, $3000, to apply on contract of January 28d 1864, if balance due on said contract be paid as therein provided, on or before June 1st 1864; otherwise to be applied on original indebtedness of said Foster to me, with interest, the time being .this day extended, in consideration of above payment.”
    “ Received, Ithaca, January 14th 1865, of Aaron H. Foster, his note for $2000, dated this day, payable to the order of Simeon Hammond, in sixty days after the date thereof, at the First National Rank of Ithaca, N. Y., and endorsed by the said Hammond, to apply, when due and paid upon said Foster’s indebtedness to me as per agreement.”
    He also produced the note mentioned in the foregoing receipt, and rested.
    The plaintiff, in rebuttal, gave in evidence the following agreement, dated December 26th 1861, between plaintiff and defendant :—
    “ Whereas said Foster owns certain lands in Tioga county, described in a deed to him by Farrington Barcalow, dated August 8th 1861, for an undivided half thereof; and whereas said McGraw holds two mortgages on the same, one given by said Foster and Barcalow on the whole, on which there was due on the 1st day of July last $4140; the other given by Barcalow on one-half, on which there was due on said 1st day of July $7013.84; and a note of said Foster, dated August 8th 1861, for $3000; which in the whole amounts to $14,153.34, which sum said Foster agrees to secure by his bond and mortgage to said McGraw, payable as follows,” &c. * * * And whereas said agreement cannot be carried out, because said Barcalow, just before the conveyance of said one-half by said deed, fraudulently gave and caused to be recorded a mortgage for $7000 on said lands so conveyed by him, which may be a valid encumbrance thereon.
    “Now the said Foster agrees with said McGraw, that if said McGraw shall foreclose his said mortgages, or either of them, against said lands, that he will purchase the same, unless the same will sell for more than the debt, interest and costs due to said McGraw; and that he will secure the said sum of $14,153.34, by his bond and mortgage on said lands, subject only to- such mortgages as are now on the same prior to said McGraw’s mortgages; and that he will in the mean time pay to said McGraw the interest on instalments that would have become due according to the payments above set forth, which are to be the terms of payment of principal and interest, in such new mortgage and the bond given with the same,” &c.
    Also the following letter from defendant to plaintiff’s attorney :
    “ Corning, March 11th 1865.
    “ D. Boardman, Esq., Dear Sir: — I have been expecting to hear from you in relation to delivery of deed and other papers left with you as between John McGraw and myself, in connection with lands in Tioga county, Pa., to perfect title against F. Barcalow’s fraudulent mortgage, as per agreement. Having paid the note at your bank, and all now due, except the joint mortgage, which is abundant security for all unpaid, I can see no good reason for holding said deed and papers longer.”
    The plaintiff testified, under objection and exception, that at the execution of the contract of January 23d 1864: “ The word ‘ original’ in the contract was interlined by Judge Williams, at my request. Mr. Sherwood, Mr. Williams, Mr. Foster and myself were present. Was inserted before the contract was executed. There was a discussion in regard to what indebtedness would be intended, if the contract were executed as first drawn by Mr. Williams ; that it might be construed as the amount inserted in the contract, if the payments were not made as specified; and the word ‘ original’ was interlined, so that there would be no inference that the payments made should apply on the amount included in the contract, if not made according to the contract, but upon the $13,000 and over, the whole indebtedness. The stipulations were not made according to the contract of 23d January 1864.
    He further testified, under objection and exception: “The agreement between Mr. Foster and myself was, that the younger claims were to be paid first; the $3000 note and mortgage given by Barcalow on his undivided half of the property. * * * The agreement that the payments made were to apply on the younger ■ claims, existed before and after .the contract of 23d January 1864.”
    The defendant gave evidence contradictory of the plaintiff’s testimony as to the occurrences at the execution of the agreement.
    The plaintiff’s 2d point was:—
    “ That if neither the debtor nor the creditor made application of the payments, then the law applies them upon that debt which is most beneficial to the creditor and the least secured; and that if the jury believe the evidence, the note and the younger mortgage of this property against A. H. Foster were least secured, and therefore the payments should apply on them, and not upon the joint mortgage in controversy.”
    To which the court replied: “ If neither Foster nor McGraw applied them, then the law applies them on those debts which are least secure; and if the jury believe the evidence, then the note and latest mortgage were least secure, and the payments are applied, under the legal rule, on them, and not on the joint mortgage in suit.”
    The defendant’s points with their answers were as follows:—
    1. “ The contract of 1864 being clear and explicit in its terms, must be construed by the court, and cannot be altered or its construction affected by extrinsic evidence.”
    Answer: “ The contract of January 23d 1864, may not be regarded as very ambiguous, but it is not so clear and explicit in all its points as not to be susceptible of explanation by the parties to it; and although they differ in their construction of the clause in it which I regard as somewhat ambiguous, their evidence confirms me in the construction I have given it.”
    3. “ The term ‘ original indebtedness, ’ employed in the contract of 1864, must be held to refer to the instruments, which were the original subject of negotiations in the contract of 1861, and the original charges upon defendants’ lands, namely, this mortgage and the mortgage of August 1st 1857.”
    Answer: “ The expression ‘ original indebtedness,’ employed in said contract, refers to the whole indebtedness of Foster to Mc-Graw existing at the date of said contract, which, as shown by the evidence, was upwards of $13,000, and was compromised at $11,000, payable in the manner specified in the contract.”
    4. “ All payments made upon the contract of 1864, are now to be applied upon said instrument of ‘ original indebtedness’; and as the mortgage upon which this suit is brought is the oldest mortgage, the payments are to be. applied upon it till it is paid.”
    Answer: “ All the payments made by him to McGraw since its execution, including the cash in hand $2000 payment, are to be applied on the whole indebtedness of Foster to McGraw existing at the time; and neither debtor nor creditor having made a special application of them, the law applies them on debts which are least secure, and not on the mortgage-debt in suit, which is most secure.”
    March 21st 1870,
    6. “ The letter of Poster, bearing date March 14th 1865, to Boardman, cannot be so construed as to change the application of the money previously paid, contrary to the agreement of 1864, nor different from its application as expressed in the receipts given at the time the money was paid.”
    Answer: “ The letter of Poster, dated March 14th 1865, was not designed to change the application of the payments as made previously, but concludes him from denying that they were applicable in the manner alleged by the plaintiff, and not on the joint mortgage, and shows that he assented to such application.”
    The verdict was for the plaintiff for $6336.
    The defendant took out a writ of error.
    The 1st, 2d and 3d assignments of error were to the admission of the evidence.
    The 4th, the answer to the plaintiff s point.
    The 5th, 6th, 7th and 8th, the answers to the defendant’s points.

      M. P. Elliott, 8. P. Wilson and W. H. Smith, for plaintiff in error.
    — The mortgage should not have been admitted without explanation of the alteration to the jury: Jordan v. Stewart, 11 Harris 244; Smith v. Weld, 2 Barr 54; Barrington v. Bank of Washington, 14 S. & R. 423; Zeigler v. Sprenckle, 7 W. & S. 175. Evidence applying the word “original,” was inadmissible: Benson v. The Miners’ Bank, 8 Harris 373; Baker v. McDowell, 3 W. & S. 360; Means v. The Presbyterian Church, Id. 303; Barnhart v. Riddle, 5 Casey 92.

      Sherwood and Harrison, for defendant in error.
    — As to the application of the payments cited: Johnson’s Appeal, 1 Wright 274; Pierce v. Sweet, 9 Casey 157.
   The opinion of the court was delivered,

by Agnew, J.

— It is a sufficient answer to the 1st assignment of error to say that the mortgage of January 1st 1856, has neither been produced nor printed, while the defendant in error avers that it exhibits on its face no evidence of alteration or addition, after execution, to exclude it from the jury. The deed or a copy might show conclusively or apparently tiiat the matter alleged was written in the deed before execution. The court must judge of the due proof of the execution of a deed, but when duly executed, the question of alteration or addition afterwards is generally a question for the jury: Heffelfinger v. Shutz, 16 S. & R. 44; Simpson v. Stackhouse, 9 Barr 186. There was no error in the admission of the evidence contained in the 2d assignment of error. The evidence proposed was of what occurred at the execution of the paper, for the purpose of enabling the court to read the paper in the light of the circumstances, and not to prove that the word “ original,” inserted at the instance of McGraw, had a different meaning from its ordinary signification. The evidence of the circumstances attending the execution of a paper, and what the parties said while engaged in the act of execution, are often very material in enabling the court to understand the contract, and to give a proper interpretation to it. This is received on the principle of explanation merely, not to alter or vary the terms of the contract.

Nor was there error in receiving the evidence set forth in the Sd assignment of error. An agreement before or at the time of the written agreement of 23d January 1864, to apply the payments of Foster to the younger claims of the plaintiff, was not inconsistent with the terms of the written agreement. The purpose of that agreement was to settle and fix a specific sum which McGraw agreed to accept in full satisfaction of his claims on the real estate in Middlebury, provided this sum was paid according to the terms of the agreement. The order in which the instalments should be applied to these claims was not provided for in the agreement. It was therefore competent for the parties to be guided in the application of the payment by another agreement. The only language in the written agreement affecting this question is that part which provides that if the money to be paid under the contract should not be paid within the time specified, the money paid in hand shall “ apply on the original indebtedness of said Foster to said McGraw.”

If the words original indebtedness” mean oldest indebtedness, as contended for by the defendant below, it would change the case, but we think that the learned judge below gave these words their true interpretation, and this leads us to dispose of the remaining assignment of error. The purpose of the agreement being to accept a less sum than Foster actually owed McGraw, provided the money should be paid promptly, according to the terms of the writing, the next thing to be provided for was the failure of Foster to pay according to these terms after he had made the first payment in hand, and this provision evidently was that the payment so made should then apply on the indebtedness of Foster, as it stood originally, before the reduction made upon it by the writing. It was simply to say, on part of McGraw to Foster, if you fail to comply with the terms of prompt payment, as required by our agreement, then we shall stand as we stood before, and what you pay will apply to my claims as they existed before we entered into this bargain.

This being the true meaning of the terms original indebtedness, and the agreement not having provided for the order of application, the case then stood on the question of actual application. The defendant proved no application by himself to either mortgage, so that the application was to be made to the junior mortgage, if the evidence of the plaintiff were believed, and even this became immaterial, for if no actual application had been agreed upon, as contended by the plaintiff, to the junior mortgage, still the application would be made to it by the law, on the ground that it was the least secure, both in point of time and quantity of property: Johnson’s Appeal, 1 Wright 268; Pierce v. Sweet, 9 Casey 151.

Upon the whole, we discover no error, and the judgment is therefore affirmed.


source: Caselaw Access Project

author: by Thompson, C. J.

license: Public Domain

text:
    Hancock’s Appeal.
    1. The requirements of the Act of March 13th 1815 (Divorce), are satisfied by setting out in the libel, the causes of complaint, without time place or circumstances.
    2. A special statement of the cause is all that is required.
    3. The respondent, if an appearance be entered, may demand a bill of particulars or notice of special matter.
    4. If a specification of times and places whereon the cause of complaint arose is demanded, it is to be obtained by a rule or order of court.
    5. Brenig v. Brenig, 2 Casey 161, remarked on.
    March 16th 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Luzerne county: Of January Term 1870, No. 889.
    On the 29th of August 1868, Adelia Hancock petitioned the Court of Common Pleas, setting forth that she had been married to Frederick Hancock on the 20th of August 1866, and had cohabited with him until August 1st 1867, &c., that “for a considerable time past the defendant had given himself up to adulterous practices and had been guilty of .adultery with a certain female called Julia McKeon, and divers other persons to the petitioner unknown,” &c., and in the usual form, praying for a decree of divorce. A subpoena was accordingly issued to the defendant, returnable to the 2d Monday of November then next. The sheriff returned “Non est inventus,” upon which an alias subpoena was issued, to which there was the same return. On the 15th of January 1869, the court ordered the usual publication, notifying the defendant to appear on the 3d Monday in February 1869, and appointed Lewis S. Waters examiner. Proof of publication was duly made. Depositions were taken by the examiner, February 13th 1869, proving the marriage of the parties, and the residence of libellant in Pennsylvania for a year; also the adultery of defendant with Julia McKeon about October 12th 1867. The depositions were filed February 24th 1869, and on the 26th a divorce was decreed. The defendant appealed from the decree December 17th 1869.
    The assignments of error were—
    1. The libel does not state that the defendant resided in the United States, when the libel was filed or the adultery committed.
    2. The libel does not state when and where the alleged adultery was committed, nor that it was committed in Pennsylvania, nor any one of the United States.
    3. The court below did not make the proper preparatory rules and orders in the cause, for bringing the same to a hearing and determination.
    4. The appointment of Lewis S. Watres a commissioner to take depositions is too uncertain as to where and on which part he is to take the same.
    5. No commission issued to Lewis S. Watres to take depositions.
    6. The depositions were irregular and improperly taken, and should have been rejected by the court below.
    7. There was no legal evidence before the court below sufficient to warrant the decree made.
    8. The court below had no jurisdiction of the subject-matter, nor of the defendant.

      D. JR. Randall, J. Mahon and Ward Gfunster, for appellant.
    —The libel must contain every element requisite to warrant a decree: Murray v. Keyes, 11 Casey 384; Parke v. Kleeber, 1 Wright 251. Extraneous evidence cannot aid a defect in the record: Bradford Tsp. v. Goshen Tsp., 7 P. F. Smith 495; Plunkett’s Creek Tsp. v. Fairfield Tsp., 8 Id. 209. Our courts have no jurisdiction where adultery is committed in a foreign country and the complainant only resident in Pennsylvania: Bishop v. Bishop, 6 Casey 412; McDermott’s Appeal, 8 W. & S. 251; Dorsey v. Dorsey, 7 Watts 349. The evidence is insufficient and the court should have scrutinized it carefully: Edmonds's Appeal, 7 P. F. Smith 232.

      J. Handley, for appellee;
    — The libel was correct in form: Dunlap’s Forms 407; P. F. Smith’s Forms of Procedure 285; Act of March 13th 1815, Purd. 347, pl. 12. The decree of divorce determines the status of the parties: Burlen v. Shannon, 3 Gray 387; 1 Greenl. on Ev., § 527; Story on Conflict of Laws, § 607; Starkie on Ev. 291, 292. In libel for divorce for adultery, our courts have jurisdiction, although the offence was out of the state: Light v. Light, 17 S. & R. 274; 2 Kent Com. 100; Clark v. Clark, 10 N. H. 380, 389 ; Humphrey v. Humphrey, 7 Conn. 116 ; Delliber v. Delliber, 9 Id. 233 ; 2 Bish. on M. & D., § 234. In divorce reasonable certainty only is required : Farr v. Farr, 34 Missi. 597. The name of the partieeps criminis need not be stated: Germond v. Germond, 6 Johns. Ch. 347; Garrat v. Garrat, 4 Yeates 244; Choate v. Choate, 3 Mass. 391.
    March 21st 1870,
   The opinion of the court was delivered,

by Thompson, C. J.

— The Act of the 13th of March 1815, which prescribes how proceedings are to be instituted in order to obtain a divorce, directs that the injured party may exhibit his or her petition in term time of the Court of Common Pleas, or to one of the judges thereof, thirty days before the next term, setting forth particularly and specially the causes of his or her complaint, and subscribing an oath or affirmation “ that the facts contained in the said petition or libel are true to the best of his or her knowledge and belief, and that the complaint is not made out of levity or by collusion between the parties,” &c., and “ thereupon,” says the act, a “ subpoena shall issue directed to the party complained of, to appear at the next or subsequent term of the said court,” &c.

Thus it is plain, that the provisions of the statute are satisfied so far as the petition or libel is concerned, by setting forth the causes of complaint without accompanying it by time, place, or the circumstances of the violation of the marital obligation complained of. A special statement of the cause for which the divorce is claimed is all that is required. “ Thereupon,” says the act, “ a subpoena shall issue.” If an appearance be entered the respondent may demand a bill of particulars or notice of special matter, intended to be proved, so as to be prepared to meet the proof of them. This results, not from any statute, but from a desire of the courts to further common justice, which can only be well done by allowing all parties to a litigated case ample notice of what may be essential to his or her defence.

In Breinig v. Breinig, 2 Casey 161, the averments of the libel were general as here, and enough to cover a multitude of items of charges sustaining the petitioner’s claim to a divorce. It alleged a refusal to cohabit and the offering of such indignities to the person of the petitioner as to render her condition intolerable and life burdensome, and by cruel and barbarous treatment endangering her life, and forcing her to withdraw from the respondent’s home and family.”

Neither time, place, nor circumstances, were given, but the libel was held sufficient to sustain the decree. It was said in the opinion in that case, that if the respondent had desired anything more specific he ought to have called on the libellant for a specification of the matters intended to be proved. Not having done so he waived anything more specific.

This shows, as do many cases which might be cited, that a compliance with the act, in the use of sufficient terms, specially setting out the cause of complaint, is all that is required. If a specification of times and places, wherein the cause of complaint arose is demanded, it is to be obtained by rule or order of the court.

This was early announced as the rule: Garratt v. Garratt, 4 Yeates 244, and has been followed since as the case cited supra shows.

, The libel in this case, charged in appropriate form, as a cause for the application on the part of the complainant, that the respondent had committed adultery with a person named. This authorized the awarding of the subpoena, which was served, and returned, according to the Act of Assembly. There was no appearance by or for the respondent, and of course, no demand for a specification of particulars. All that remained for the court to do, having decided the petition to be sufficient in substance and form to authorize a subpoena to be issued, was to receive proof of the charge in order to make a decree dissolving the bonds of matrimony between the parties. The proof required would be the commission of the crime within this state or some other state of the Union. This was done, as we see by the testimony brought up with the appeal. The evidence shows that the breach of the marital obligation charged, actually took place within the jurisdiction of the court, and in the place of the domicil of the parties. The libel was sufficient, and it was supported .by evidence which was entirely sufficient — being uncontradicted. The peradventure suggested, namely, that the crime may have been committed out of the United States, is shown to be beyond doubt, untenable, by the evidence, and that was all that was required.

I do not think there is any other question in the case which needs discussion, and I therefore omit noticing many of the arguments submitted in the case, as unnecessary and foreign to it.

There is no error in the record, and the decree of the court below is affirmed, and the appeal dismissed at the costs of the appellant.


author: by Agnew, J.

text:
    Santee versus Santee.
    1. A bequest was to “my wife all my household goods, &c., and one cow; also the use and occupancy in my dwelling-house during her life, or so long as she may choose to occupy the same herself, * * and stable-room for her cow, and hay and straw room; and also the use of one-half part of the garden, * * and also during the time aforesaid, hay, straw and pasture sufficient for her cow, and yearly one fat hog,' one hundred pounds of beef, nine bushels of wheat, nine bushels of rye, eight bushels of potatoes, and fuel as much as she needs, and the interest of $1000, to be paid to her yearly during her lifetime.” He gave real estate to a son, and directed him “ to give to my said widow yearly, during the time mentioned in the foregoing bequest to her, the interest of $500, a fat hog, nine bushels of wheat, nine bushels of rye, and the first year, hay for her cow, and so on every other year during the term aforesaid.” After the death of-the testator the widow moved from the premises. Held, that the son was bound to deliver her the articles mentioned in the devise to him.
    2. The articles were for her support, and the testator did not intend to restrict them to her occupancy of his dwelling.
    3. The will was not signed, but all in interest agreed that it should be proved and carried out. The son gave the widow a judgmentbond, conditioned for the payment of the annuity, and delivery of the articles to the widow “ during her life.” Meld, that the bond was a construction of the will and a binding agreement.
    4. The bond fixed a day for the payment of the annuity. Meld, that the bond being to carry out the will, the delivery of the articles should he on the same day.
    5. It was the duty of the son to be ready to deliver and to tender them on that day.
    6. Whilst the widow occupied the house the delivery was to be there.
    7. The widow having moved from the state, leaving an agent, it was the duty of the son to notify the agent of his readiness to deliver the articles, and request him to appoint a place for receiving them.
    8. It was not the duty of the son to deliver the articles wherever the widow might be.
    March 2st 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Northampton county: No. 80, of July Term 1869.
    Joseph Santee died on the 28th of September 1861. After his death there was found amongst his papers an instrument in his own handwriting purporting to be his will, but not signed. The paper contained the following provisions:—
    “ 2. I give and bequeath unto my wife Sarah all my household goods and kitchen furniture, &c., and one cow; and also the use and occupancy in my dwelling-house during her lifetime, or so long as she may choose to occupy the same herself, the small room, &c., and stable-room in the barn for her cow, and hay and straw room, and also the use of the one-half part of the garden, &c.; and also during the time aforesaid, hay, straw and pasture sufficient for her cow, and yearly and every year one fat hog, weighing not less than two hundred pounds, one hundred pounds of beef, nine bushels of wheat, nine bushels of rye, and eight bushels, of potatoes, and fuel as much as she needs, and the interest of $1000, to be paid to her yearly and every year during her lifetime, &c.
    “ 3. I give and devise unto my son Simon, and to his heirs and assigns, my mill property, &c., in consideration whereof he is to pay $1400 as follows, that is to say, &c., * * * and give to my said widow Sarah, yearly and every year during the time mentioned in the foregoing bequest to her, the interest of $500, a fat hog, weighing not less than two hundred pounds, nine bushels of wheat, nine bushels of rye, and the first year hay for her cow, and so pn alternately every other year during the time aforesaid.
    “ 4. I give and devise unto my son Joseph William, and to his heirs and assigns, my dwelling-house, &c., in consideration whereof he is to pay $500, that is to Say, &c., and' the interest of $500 yearly and every year to my said widow Sarah during her lifetime mentioned in the bequest made to her hereinbefore; and also one hundred pounds of good beef, eight bushels of potatoes, fuel, pasture for her cow, and stable-room in the barn for the same, and for her cow, hay and straw; and also hay the second year for her cow, and so on alternately every other year during the time mentioned in the bequest to her hereinbefore. But my son Joseph William shall not have the right to have the house occupied by any other person or persons but by himself and his family only during the time that my said widow Sarah shall live or occupy' the same, without her full will first had and obtained for that purpose.”
    On the 12th of October 1861, Sarah Santee the plaintiff and widow of the decedent, Simon Santee the defendant, a son of the decedent, and all his other children, entered into an agreement that the instrument above mentioned should be admitted to probate as the will of the decedent, with the same effect as if it had been executed by him; and that his estate should be distributed in the manner set forth in the writing.
    At the same time the defendant executed to the plaintiff a bond with warrant of attorney in the sum of $500, conditioned that he would pay and deliver to her $30 during her life, the first payment due on the 28th of September 1862, a fat hog weighing not less than two hundred pounds, nine bushels of wheat, nine bushels of rye, and the first year hay for her cow, and so on alternately every other year during the time aforesaid.
    O. H. Meyers, Esq., who prepared the papers, testified that the “ bond was based upon the provisions of the will,” and it was admitted by the defendant on the trial that it was for the performance of these provisions.
    In February 1863 the plaintiff left the premises of her husband and moved to the state of Ohio. She appointed Levi Hutchins her agent in Northampton to receive the articles and her annuity. For two years he received the money and articles according to the agreement. Judgment was entered on the bond February 11th 1864. In 1865 the defendant told Hutchins that the money and the articles were ready, but Hutchins said he would not receive them; that he had sent back his power of attorney to the plaintiff. He told the defendant that he had given up the bond to Mr. Meyers, and that he, defendant, should pay him.
    On the 24th of January 1866, a scire facias was issued on the judgment, to which the defendant pleaded payment with leave, &c., and gave notice of-special matter.
    On the trial, May 7th 1869, before Longaker, P. J.„ the plaintiff gave in evidence the foregoing facts.
    The defendant then gave evidence that in December 1865, Hutchins was notified that the articles were ready, and that he should come and get them; that he declined to receive them ; that the defendant always had them ready for delivery. He also gave evidence of receipts from the defendant or her agents for the annuity up to the year 1868, the last receipt being that of Mr. Meyers; also for the articles in 1863, 1864.
    The defendant’s points were:—
    1. The bond on which the judgment stated in the sci. fa. issued in this case, having been given by defendant as security for the performance of the provisions set forth in the devise to him under and by the will of Joseph Santee, is to receive a construction according to said will.
    2. By the provisions of the said will of the said Joseph Santee the said Simon was only obliged and required to give to the said Sarah Santee the fat hog, wheat, rye and hay mentioned in said bond, while the said Sarah continued to reside in the dwelling-house of the said Joseph Santee as authorized by said will. And the said- Sarah Santee having removed from said dwelling-house and premises to the state of Ohio in February 1863, where she has resided ever since, the liability of the said Simon to deliver the said hog, wheat, rye and hay, ceased upon the removal of the said Sarah, and therefore under the proof defendant is not in default.
    3. The plaintiff having not given any proof of demand upon the said defendant for the said hog, wheat, rye and hay, since the last delivery to her, is not entitled to recover.
    The court answered the points in the negative.
    The court charged:—
    “ * * * To understand the relations of the parties we must look principally to the will. [I say to you the construction of that will must be held to mean, that the bequest to the plaintiff of the hay, the fat hog, the rye and the wheat, as charged upon the real estate devised to Simon Santee, is limited only by the term of the natural life of Sarah Santee.] This construction must prevail from the fact that the testator also gives his widow the privilege and use of part of the house, the garden, stable-room for a cow, &c. (charged upon another devise), so long as she shall choose to occupy them ; this provision secures to her a place of habitation limited only by her desire of occupancy; the other provides a bequest in money and specific articles, affording ber the actual means of living and support during life; they are therefore distinct sentences of the will — the one limited by life, the other by occupancy.
    “ The parties themselves have also put this construction upon the will. * * * [They therefore having thus construed the will, and the obligation of the bond, will be held to that interpretation. So far, therefore, as relates to this branch of the casé, we charge you that the plaintiff is entitled to recover.]
    [“ Upon the question of demand we say to you it was the duty of the defendant to have offered to deliver the articles — first having requested the plaintiff to fix a place of delivery at some reasonable point within her late neighborhood.] * * * Upon receiving this information (if you believe the testimony), it became the duty of the defendant to have called upon. Mr. Meyers, or to have written to the plaintiff requesting her to designate some suitable time and reasonable place for delivery.
    “[The testator died September 28th 1861, and during that year, on or before September 28th 1862, it became the duty of the defendant to deliver the specific articles, if the will had stood without the qualifications attached to it by the bond. By the bond the ending of the year was fixed on the 12th of October 1862, therefore during that year and each year thereafter, the defendant was obligated to put himself in a situation to be willing and able to deliver at some suitable place and time, of which the plaintiff should have reasonable notice, all the articles specified by the will and as contained in the bond. Were there, then, any such time and place fixed by the defendant? If there were not, then the plaintiff will be entitled «to recover the value of the articles not delivered, with interest from October 12th for every year in which there was a failure of delivery of all or any of them.] [It can make no difference, in relation to the hay, whether the plaintiff had a cow or not. Her right to have the specific articles is absolute, and when once delivered she may use them by actual consumption, or dispose of them by a sale at her will.”]
    The verdict was for the plaintiff for $152.08.
    The defendant removed the case to the Supreme Court, and there assigned for error:—
    1-5. The portions of the charge included in brackets.
    6-8. The denial of his points.

      H. D. Maxwell, for plaintiff in error.
    — The defendant may show that the consideration of the bond had failed: Miller v. Fichthorn, 7 Casey 252. Being based on the will it must be construed by that, and from it alone the'intention of the testator is to be ascertained: Ruston v. Ruston, 2 Dall. 244; Findlay v.
      Riddle, 3 Binn. 150; Lynn v. Downes, 1 Yeates 518; Turbett v. Turbett, 3 Id. 187. There should have been demand on the premises: Chit. on Cont. 627 note x; Hamilton v. Calhoun, 2 Watts 139; Barr v. Meyers, 3 W. & S. 299; Musselman v. Stoner, 7 Casey 269.
    May 5th 1870,

      O. H. Meyers, for defendant in error,
    cited: As to construction of the will: Beck’s Appeal, 10 Wright 527. As to delivery: Benley v. Whitney, 5 Greenl. 192; Stewart v. Morrow, 1 Grant 204; Roberts v. Beatty, 2 Penna. R. 63; Bean v. Simpson, 16 Me. 49; Howard v. Miner, 20 Id. 325.
   The opinion of the court was delivered,

by Agnew, J.

— Whether we take for our guide the will of Joseph Santee, or the judgment-bond given by Simon Santee to Sarah San-tee, we think the result is the same; the provision made for her is for life. The general intent of the testator to provide for his widow during her lifetime, is too plain for argument. It is manifested distinctly in the reservation of the purchase-money payable to Simon and Joseph William for the land devised to them, and the payment of interest to the widow during life, and the reserved principal to her death. It is also clearly stated in the devise and provision made for Joseph William, in the expression “ during her lifetime,” mentioned in the bequest made to her hereinbefore. This is followed immediately by the provision for the delivery of the beef and potatoes, and the way in which they are to be delivered, alternately every other year “ during the time mentioned in the bequest to her hereinbefore.” In the provision for Simon, perhaps the intent is quite as clear, for there the interest of the f500, and the articles, viz., the hog, wheat, rye and hay, are all placed on the same footing, and are to be paid and delivered “ every year during the time mentioned in the foregoing bequest to her.” Now the interest on the $1000, to be paid to her annually, is clearly stated to be for life, so that with the interest, the specific articles to be delivered every year during the time mentioned in the bequest to her, leave no doubt of the meaning. It is evident, from those clauses, as well as from the presumed intent of the testator to provide a comfortable living for her, that in giving to his widow the occupancy of certain rooms, in his dwelling-house during her lifetime, or as long as she may choose to occupy the same herself, he did not by the latter clause intend to restrict the provision for her support, to the period of occupancy of the dwelling-house. This would be a foolish and harsh condition, that she should be supported only so long as she remained in that dwelling. It would be as much as to say, no matter how inconvenient or uncomfortable her residence there might become, she must abide there or lose her support. It is argued, that the judgment-bond is an interpretation of the will by the parties themselves. It is so, and more. It is their agreement, and controls in the absence of fraud or plain mistake, of which there is no evidence. In regard to the delivery .of the specific articles, we think the case is also with the plaintiff below. The testator died on the 28th day of September 1861. Under the will the yearly payments and delivery would begin in one year from that time. The bond which was drawn and executed two weeks after the death of the testator, fixes the 28th day of September 1862, as the time when the payment of the annual interest began. This is evidently, also, the time intended to be fixed for the delivery of the specific articles. Such is the reasonable intendment and construction of the condition of the bond. This being so, we have a case where the time of delivery of the specific articles, to wit, “ a fat hog weighing not less than two hundred pounds, nine bushels of wheat, nine bushels of rye, and the first year’s hay for her cow, and so on alternately every other year during the time aforesaid,” was fixed by the contract. The articles here are specified both as to kind and quantity, and therefore needed no act of the plaintiff by way of election, selection, or determination, of quantity. The case is therefore not governed by the principles of Hamilton v. Calhoun, 2 Watts 139, which required an election and specification of the kind and quantity of the farm products, by the widow, before the articles could be known. But it is governed by the principles of the. common law as stated in Roberts v. Beatty, 2 Penna. R. 71; Barr v. Meyers, 3 W. & S. 299; Fleming v. Potter, 7 Watts 380 ; Stewart v. Morrow, 1 Grant 204; and Allen v. Woods, 12 Harris 78. The time of payment being fixed, and the articles specified, it was the duty of the defendants to be ready with the articles for delivery on the day, and to tender or offer to deliver them to plaintiff on that day. So long as the plaintiff remained in the occupancy of the house and had her fixed residence there, that was evidently intended to be the place of delivery. There the testator died, there the widow was to live, and the farm devised to the defendant adjoined it. After she moved away and had left an agent to receive the articles, the only change in the mode of performance made necessary by the act of the widow, was that, instead of a delivery of course on the premises, it then became the duty of the defendant before the day of delivery, to give notice to the agent of his readiness to deliver and to request him to appoint a place for receiving the articles. But the plaintiff having moved out of the state, when her agent ceased to act, the case became changed. Clearly it was not the duty of the defendant to follow her whithersoever she might go, and to deliver the articles wherever she might be. Duties are often changed by circumstances where the circumstances are produced or caused by the act of the party to whom performance is to he made. Where that party moves out of the state the cases recognise a change in the duty: Roberts v. Beatty, 2 Penna. R. 71. It is old law, that a debtor is not bound to seek his creditor out of the realm: Litt. § 340; Coke Litt. 210, b. This has been recognised as the law in Emlen v. Lehigh Coal and Nav. Co., 11 Wright 83. But still, although the defendant was not bound to seek the plaintiff beyond the boundaries of the state; being the debtor in the contract it does not follow that he could remain passive. He was bound to show readiness to perform, and such a reasonable effort toward performance as the circumstances of the case permitted. And such is the effect of the decision in Roberts v. Beatty, Barr v. Meyers, and Fleming v. Potter, supra. In Maine, it has been held, that if no place be found for delivery, the foreign domicil of the creditor does not absolve the debtor from the duty of ascertaining from the creditor the place where he will receive the goods: Bisely v. Whitney, 5 Greenl. 192. As the evidence stood, it appeared that when the widow’s agent ceased to act, he referred the defendant to Mr. Meyers, as the person to whom the papers were transferred: and it further appears, that in 1868, the defendant paid the money part of his bond (the annual interest) to Mr. Meyers for the years 1866 and 1867; and also that the residence of the plaintiff in Ohio was well known to her agent.

On the other hand, the defendant gave no evidence of any effort on his part to ascertain where the articles were desired to be delivered. Under these facts, it clearly was not error in the court to charge that it became the duty of the defendant to have called on Mr. Meyers or to have written to the plaintiff requesting her to designate some suitable place for delivery. Indeed the court gave him rather a greater latitude than the contract warranted, for the time of delivery was fixed by the bond, and it was therefore the duty of the defendant to make his inquiry in due season so as to be ready to deliver at the time fixed for payment.

Finding no error in the record, the judgment is affirmed.


author: by Sharswood, J.

text:
    Titman’s Administrator versus Titman.
    1. When a child makes a claim for wages against a father’s estate, the presumption is against it, and the onus is on the child to show by clear and distinct evidence a contract to pay wages.
    2. In a contract between a minor and an adult, the adult is bound, although the minor may not be.
    3. Circumstances in this case evidencing a contract for wages between father and child, and acknowledgments to take it out of the limitation act.
    March 21st 1870.
    Before Thompson, 0. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.

      Error to the Court of Common Pleas of Piles county: No. 394, to January Term 1868.
    This was an action of assumpsit, brought May 26th 1866, by Lenah M. Titman against Jeremiah Titman, administrator, &c., of John Titman, deceased.
    The claim was for services rendered by the plaintiff to the decedent, who was her father, from 1848, when she was eighteen years of age, until 1866, when the decedent died. The defendant pleaded non assumpsit and the Statute of Limitations.
    Isaac Clifford testified, that in 1848 the decedent in his presence told the plaintiff that he would give her $ 1 a week if she vrould stay with him; she said she would stay.
    John J. Titman, a son of decedent, testified that in 1848, the decedent told plaintiff if she would stay and work for him, he would give her $1 a week; she said she would stay and work for him ; she remained until her father’s death. She was from home once; the decedent sent the witness for her to tell her to come home, and he would give her $1 a week. After the mother’s death, in December 1863, the decedent said he was to give the plaintiff $2 a week; she said she ought to have more, but she would stay for that. Decedent said he was not able to pay while he was living, but he would leave enough to pay it; that after the rest of his debts were paid, she would have the rest of it; he said he was not able to.pay her during his life, hut would leave enough to pay her; he said this in her presence; she said she did not want money so long as she had her clothes.
    Charles Titman testified, that in a conversation with her father, the plaintiff said she had been working there, and maybe would never get anything. The father said she should have her pay; she had nothing to account for her on her work; she had nothing on her wages; this was a few days before his death.
    A number of other witnesses testified to similar conversations between the decedent and the plaintiff; and also to declarations by the decedent not in her presence, that he was to pay her as above testified.
    The defendant gave evidence in answer to the plaintiff’s case. He also gave evidence that on the day of taking the inventory of the effects of the decedent, the plaintiff said if the administrator would deliver to her certain property which she claimed to be her own, she had no claim on the estate for wages, and that th.e property was delivered to her.
    The defendant’s points were:—
    1 The contract or agreement spoken of by some of the witnesses, as made by the intestate with his daughter before she was twenty-one years of age, was not binding upon the intestate, and no recovery for wages can be had thereon.
    2. There is not in this case such clear, distinct and satisfactory evidence of a contract for wages, between the intestate and the plaintiff, as to warrant a recovery by said plaintiff.
    3. If the plaintiff can recover anything in this case, she cannot recover for any services or work done, more than six years prior to the institution of this suit.
    4. The continuance of the services from year to year raises no presumption against the intestate of the renewal or continuance of the alleged original contract.
    5. The declarations of the decedent are not evidence to aid or establish a special contract, unless the original contract is proved, in clear, express and unequivocal terms.
    6. If the jury believe the testimony of Joseph L. Gardner and Lemuel L. Hawk, then such a settlement and compromise was made between the plaintiff and administrator as will prevent a recovery in this case.
    7. The evidence is not so clear and unequivocal as to leave no doubt that the relation between the intestate and the plaintiff was not the ordinary one of parent and child, but of master and servant, and there cannot therefore be any recovery in this case.
    The court (Jones, P. J.) charged: — •

      “ I. The contract, so called of 1848, was made when plaintiff was but eighteen. The father was entitled to her services at that time. He agreed to pay for what he had a right to receive — what was his own. She was not of age to make a valid contract. But suppose the father wras pleased to put her services on the footing of a servant — who shall deny his right ? And if no one can deny his right to do that, and he does it, who other than himself shall deny her right to recover? If she was a stranger, no one could doubt her right to recover. Lenah could recover only on that footing. Her father could make her a stranger. Could put their relations on the footing of an express contract, and the question is, did he do it ? If he did, and there is nothing else in the way, she could recover for such wages.

      “ II. There must be clear, distinct and satisfactory evidence of a contract for wages between the intestate and the plaintiff, old John T. and Lenah, to warrant a recovery by the plaintiff, but we cannot say there is no such evidence. There is such clear, distinct and satisfactory evidence in the case, if you believe it.
    “ III. The plaintiff can recover for services done more than six years prior to the institution of this suit, if there be evidence in the case that satisfies you the contract, if any, was that the wages were not to be paid until old John Titman’s death. The wages so became by such an agreement a debt of the present, to be paid in the future, and the statute could only run from the death. Or, if a clear, full, explicit, distinct acknowledgment of the debt was made and promise to pay it.

      “ IV. These services were by the week, at so much per week, and ran through years. Were not services by the year, rendered from year to year, year in and year out ? It would be hard to require such a contract to be renewed every week. I should say that in such a case there is no renewal required — that whatever time was served would be taken as a whole.
    “ V. This is answered in the affirmative. Upon this principle precisely all these declarations were received in evidence. If an original contract be not proved in clear, express and unequivocal terms, these declarations go for nothing. If such contract be proved, they go in corroboration of it merely.
    “ VI. This would be so if you take the evidence precisely as it stands, but without imputing anything to the witnesses you will enter into the evidence and satisfy yourselves that it is correct— that the witnesses are not mistaken.
    “ VII. I cannot say the evidence is not so clear and unequivocal as to leave no doubt that the relation between the parties was not the ordinary one of parent and child, but of master and servant.

      “ 1. If the jury believe that no relation of master and servant but only of parent and child existed between John Titman and Lena, your verdict should be for the defendant.
    “ 2. If the jury find that at the appraisement she agreed to release her claim for services if the administrator made no objections to her receiving her things in the house, and that was done, the verdict should be for the defendant.
    “ 3. If the jury believe that the relation of master and servant was created between old John Titman and Lenah, by a clear, distinct and satisfactorily expressed contract between them, she to be paid one dollar a week up to her mother’s death and two dollars after that; the payment to be postponed till after his death, your verdict should be for the plaintiff.”
    The verdict was for the plaintiff for $1030.
    The defendant took out a writ of error, and in fifteen specifications assigned the charge for error.

      W. Davis, for plaintiff in error.
    — The contract made before the plaintiff was of age was without consideration and not binding. Chitty on Contracts 10, 25, 27, 51. What was not said in plaintiff’s presence was not a promise: Kyle v. Wells, 5 Harris 290; Hertzog v. Hertzog, 5 Casey 465; Mosteller’s Appeal, 6 Id. 473. The acknowledgment to take the case out of the statute was not plain,^unambiguous, express and distinct: Gilkyson v. Larue, 6 W. & S. 217; Morgan v. Walton, 4 Barr 321; Emerson v. Miller, 3 Casey 280; Weaver v. Weaver, 4 P. F. Smith 152. The evidence must identify the debt: Suter v. Sheeler, 10 Harris 308; Shitler v. Bremer, 11 Id. 413; Burr v. Burr, 2 Casey 284. Admissions of indebtedness, or promises to pay, to toll the statute, must be to the plaintiff or his agent: Kyle v. Wells, 5 Harris 286; Gillingham v. Gillingham, Id. 302; Chandler v. Glover’s Admr., 8 Casey 509.
    March 28th 1870,
    Contracts between parents and children are to be proved only by evidence direct, positive, express and unambiguous; Poorman v. Kilgore, 2 Casey 372; Harris v. Richey, 6 P. F. Smith 395; Bash v. Bash, 9 Barr 260.

      W. H. Jessup, for defendant in error.
    — A father may emancipate a minor child : Galbraith v. Black, 4 S. & R. 207 ; U. States v. Mertz, 2 Watts 406; McClosky v. Cyphert, 3 Casey 220; Jenney v. Alden, 12 Mass. 375; Wodell v. Coggeshall, 2 Met. 89; Burlingame v. Burlingame, 7 Cowen 92; Cannovar v. Cooper, 3 Barb. 6, 115; Shute v. Door, 5 Wendell 206; McCoy v. Huffman, 8 Cowen 85.
    Contracts of minors may be sustained against an adult, 1 Pars. on Contr. 330. The evidence to warrant a recovery was sufficient: Neel v. Neel, 9 P. F. Smith 347.
   The opinion of the court was delivered,

by

Sharswood, J.

— It answers no good purpose to multiply points, exceptions and specifications, of error, unnecessarily. On the contrary, it tends only to embarrass the court, and increase their labors in the consideration and determination of a cause. In this case there are fifteen assignments of error, which may all, however, be disposed of by the resolution of four questions.

1. The first is, whether there was sufficient evidence to submit to the jury that the relation between the plaintiff and the decedent was not that of father and daughter merely, but superadded to that the contract relation of master and servant. The presumption primá facie was undoubtedly against the plaintiff’s claim, and the onus was therefore on her to show, by clear and distinct evidence, a contract by her father to pay her wages. There was the testimony of more than one witness that, in 1848, John Titman, the decedent, told his daughter, the plaintiff, that he would pay her wages at the rate of one dollar a week, and that after the death of his wife, which occurred in 1863, he made another agreement with her at two dollars a week. Nor was there wanting other evidence in. corroboration of this, by declarations made by him to others, that she was to be paid for her services. The case in this respect is quite as strong as Neel’s Administrator v. Neel, 9 P. F. Smith 347.

2. But when this alleged contract was originally made, the plaintiff was a minor, only eighteen years old. It is not improbable that, according to a very prevalent error throughout the country, arising from the provisions of the Act of September 29th 1770 (1 Smith 309), that the term of an indenture of apprenticeship of a female shall expire at or before that age, she was considered to have then attained her majority. It is contended that, so far as regarded the three years yet to elapse before she arrived at twenty-one, the agreement by her father was without consideration, as he was, in law, entitled to her services. But we do not think that this ground was so clearly presented to the court below as it ought to have been. No distinction was made, in any of the points, between the liability of the father for these three years, and the subsequent time during which the plaintiff continued to serve in the house. The only one which seemed to include it was the first: “ that the contract or agreement spoken of by some of the witnesses as made by the intestate with his daughter, before she was twenty-one years of age, was not binding upon the intestate, and no recovery for wages can be had thereon.” It is very well settled that when a contract is made between a minor and an adult, the adult is bound, though the minor may not be: Addison on Contracts, § 82. The court might then have simply refused so to charge. It is true that the answer of the learned judge gives a reason for the refusal, which would apply equally to the period before and after majority, namely, that the evidence, if believed, showed an emancipation of the child, and that the contract of a father with an emancipated child, for services, is valid and binding. We do not deem it necessary to decide whether this is the law. The invalidity of the contract was apparently put, in the point presented, solely on the want of capacity in the minor, and not on the want of consideration; because the inference asked to be drawn was not that the plaintiff could not recover for services rendered during her minority, but that she could not recover at all. Had the attention of the court been drawn to this specially, they would doubtless have referred to the statement of the agreement as contained in the testimony of John T. Titman. He said that the decedent frequently talked about what he would give her when she was by and when she was not. He said he was going to give her a dollar a week from the time she was eighteen till her mother’s death, if she would stay that long.” Now if this was the contract, and the plaintiff performed her part of it by staying until her mother’s death, which was not disputed, then there was sufficient consideration to support the promise to pay for the entire period of service, as well before as after she attained majority, however it might have been if the contract had been general, or from year to year. The plaintiff in error cannot, therefore, complain of the charge in this respect.

8. We have next to consider the plea of the Statute of Limitations. It cannot be disputed that there was evidence that John Titman said that the plaintiff was not to be paid till his death, that he could not afford it during his life, but there would be enough left then to compensate her. Certainly there was no error, then, in the instruction that if the jury believed this to have been the agreement, the plaintiff’s cause of action did not accrue until her father’s decease, which took place in 1866. The learned judge added, “ or if a clear, full, explicit, distinct acknowledgment of the debt was made, and promise to pay.” It was urged that there was no sufficient evidence of this. Charles Titman testified to a conversation between the parties a few days before John Titman’s death, in w’hich he explicitly acknowledged that the plaintiff had received nothing on her wages, she had nothing to account for on her work, and that she should have her pay. He did not state the amount due her, but certainly this was not essential. He identified the claim for wages, and clearly admitted that the whole of it was due — that he had neither set-off nor payment in part to plead to it. There was no error, therefore, in the charge in this.

4. The question of the alleged accord and satifaction was fairly submitted to the jury. The point presented by the defendant on that subject was affirmed, and the remark added that the jury should weigh the evidence and satisfy themselves that the witnesses were not mistaken, was perfectly correct. Other witnesses present at the same time had stated the transaction differently.

Judgment affirmed.


text:
    Rees versus Jackson.
    1. Where a note has on it the full amount of revenue stamps cancelled by the initials of the defendant, and the execution of the note is proved, this is sufficient to take the note to a jury.
    2. A note had on it seven stamps ; the initials of the drawer being on all, four were proved to be his ; the remaining three were not proved; the question whether he had cancelled the three was for the jury.
    3. R. purchased stock of J. in consequence of a forged telegram. Evidence in this case which required the submission to the jury, of the question of JVs connection with the telegram.
    March 21st 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Monroe county: No. 409, to January Term 1869.
    This was an action of assumpsit, by A. Reeves Jackson against William S. Rees, brought January 2d 1868, on a promissory note, dated July 24th 1865, drawn by the defendant in favor of the plaintiff for $2250, payable fifty days after date. The note was part of the consideration for 500 shares of the stock of the Pennsylvania Imperial Oil Company. The defence was that the defendant was induced to purchase the stock by means of a forged telegram, purporting to have been sent by Hr. W. H. Stroud of Philadelphia, which, it was alleged, the plaintiff had procured to be sent to him. Both parties were residents in Stroudsburg.
    The cause was tried February 25th 1869, before Barrett, P. J.
    The note had on it four 25 cents revenue stamps, and three of. 5 cents ; on each of the stamps were the initials “ W. S. R.” A witness for the plaintiff called to prove the defendant’s signature to the note, testified on cross-examination that the initials on the larger stamps were made by the defendant, that he could not say the smaller ones were his; they differed from the others and from the signature. The defendant on this account objected to the admission of the note in evidence. The court admitted it, and sealed a bill of exceptions. The plaintiff having read the note, rested.
    The defendant then gave evidence that a despatch, from the line of the American Telegraph Company, dated July 24th 1865, and shown to witnesses, had been received at 3| P. M. on the day of its date, at the Stroudsburg depot, about a mile from the town, that the operator employed Charles Troch to carry it to the defendant, that he delivered it to the defendant in the presence of J. H. Stroud, and that both read it; this was after dark of the day.
    J. H. Stroud testified that after dark on the 24th of July and after reading the despatch, the defendant went down towards the plaintiff’s office, and returned in a short time and showed witness a certificate for 500 shares of oil stock with the name of the plaintiff signed to the transfer ; that the witness, who was cashier of the Stroudsburg Bank, next day cashed a check (which he identified), dated July 24th 1865, drawn by defendant in favor of plaintiff, written on the face “ payment on Penna. Imperial oil stock 500 shares,” and endorsed by plaintiff. The defendant then read the check in evidence.
    S. S. Dreher (the certificate of stock and endorsed transfer being shown him), testified that he was the witness to the transfer; that on the Tuesday or Wednesday previously to the transfer, which was on Monday, the plaintiff told him he had been thinking of going into a mining company and would like to dispose of some of his Imperial oil stock; he asked witness if he knew any one who wished to buy; witness said he did not unless it was Mr. Rees, who had recently purchased • some from Esquire Botree; witness told plaintiff he was under the impression that defendant had got his information about the stock from Dr. Stroud; plaintiff asked witness to tell the defendant that he had his stock for sale; witness on the next Saturday, which was the Saturday before July 24th 1865, told defendant that the plaintiff wanted to sell his Imperial oil stock.
    B. S. Jacoby testified that in conversation with the plaintiff on the afternoon the stock was transferred to the defendant, it was said the defendant wanted to buy some Imperial oil stock; witness wanted plaintiff to sell witness’s stock; plaintiff said: “ Rees is coming into my office to-night, and I will speak to him about it. He said he wanted to sell his. In the evening of that same day I went into Dr. Jackson’s office after supper. We talked over the matter again. I told him I was very anxious to sell mine — would like to have the money for it. I told him I would sell mine for $5.25. He said I was foolish, as I could as well get $5.50. He said he would not sell his for less than $5.50. He said after he had sold his to Rees at $5.50 he wo'uld mention to him that he could have mine at $5.25. While we were talking Rees came into the office and the conversation ceased on that subject. I remained in a while. I think Jackson stepped out for a short time. After he came back I left the office and left the Doctor and Rees iii the office. I saw Dr. Jackson again that evening in front of Marsh’s Hotel. He came up from towards his office and stopped. He called me to one side and told me that he had sold his stock to Rees, and he said you can sell yours to him if you give him time.”
    Dr. W. D. Stroud testified that he was a cousin of plaintiff’s wife and a cousin of defendant; he never sent the despatch to defendant or any other about oil or any thing else; a few days after the date of the despatch, witness and defendant went to the office of the American Telegraph Company, and in company with Gr. W. Meyers, a clerk in the office, searched amongst the messages and could not find the original of the despatch.
    Meyers testified that the despatch had been brought to the office by a boy in July 1865, and described the appearance of the paper containing the despatch.
    J. Merrihew, manager of the Telegraph Company, testified, from the books of the company, that a despatch from W. D. Stroud to W. S. Rees, Stroudsburg, was sent from their office on the 24th of July 1865, that he had searched diligently and had been unable to find the original.
    M. L. Abel testified that in July 1865, he was employed in the office of James Boys, a stock broker in Philadelphia; that he carried a despatch for Boys in July 1865 to the American Telegraph office, signed W. D. Stroud, addressed to William Rees, Stroudsburg, and gave it to Meyers; the description of the paper was similar to that given by Meyers; it was to buy oil stock ; witness never took any other despatch for Stroudsburg, nor carried any other despatch for Boys to that office; all the other despatches of Boys were sent to the Bankers’ & Brokers’ Telegraph office; witness had seen plaintiff three or four times at Boys’ office in the summer of 1865; had heard Boys speak of defendant and Dr. Stroud before that.
    The defendant gave in evidence, by other witnesses, that they had frequently seen Boys and the plaintiff together familiarly and intimately.
    The defendant offered in evidence the telegram, with the record from the telegraph office, as proved by Merrihew. t The telegram was as follows:—
    “ July 24th 1865. Received 8.30 P. m.
    “ By Telegraph from Philadelphia.
    “ To Wm. S. Rees, Stroudsburg.
    “No. 1.
    “ The Penn’a Imperial have made a big strike. Buy all the stock you can under ten (10) dollars.
    “Wm. D. Stroud.”
    The offer was objected to, rejected, and a bill of exceptions sealed.
    He then gave in evidence the certificate of 500 shares of Imperial oil stock, with transfer endorsed in blank, signed by plaintiff, and dated July 24th 1865.
    He offered to prove that at the date of the transfer the stock was without value; he again offered the telegram and telegraph book, to be followed by evidence that as soon as defendant discovered the forgery and within a week after the note was given, he offered to return the stock to the plaintiff on receiving back the note and money, informing him that he had purchased on the faith of the telegram, which proved to be forged; also to prove that the oil company had not made “ a strike,” and the stock was valueless ; also that Boys was a fugitive from justice on account of having sent the despatch. All these offers were rejected by the court, and several bills of exception sealed.
    The court charged : * * “ The note upon its face imports a consideration. It is alleged that it was given for a purchase of oil stock, and that the stock was at the time worthless — something' more must be shown to affect the consideration. If it was a fair sale the consideration was fixed by the buyer and he is concluded by it. Either fraud or mistake must be proved to avoid the payment of the note. The law presumes that the defendant was aware of what he was doing when he made the contract. If there was deceit, misrepresentation or fraud of any kind made use of to effect the sale or procure the note, it would be a good defence. Fraud is alleged, but the burthen of proof is on the defendant to show it. That a forged despatch was received by Rees from Philadelphia on the day he made the purchase is in evidence. Upon the receipt of the despatch he immediately called on the plaintiff and purchased his stock. He was acting, as he supposed, on private information. If it had been true he would have made a good bargain off the plaintiff. As it turned out to be untrue he made a bad bargain for himself. The evidence in relation to the despatch was admitted under objection, but with the promise that the plaintiff should be connected with the writing and sending of the despatch before it was offered in evidence. The despatch being between other parties and being wholly irrelevant to this issue, unless the plaintiff’s connection with it could be shown, the largest latitude has been given to the defendants for the purpose of enabling them to make the plaintiff responsible. [He has failed to show that Dr. Jackson was even in a position to direct it, and having failed to do so, it became the duty of the court to reject the despatch as evidence.] Even if the despatch could have been admitted in evidence it could not have affected the plaintiff’s right to recover unless he was implicated in the act of sending it. Suspicion, however strong, is not evidence. No other fraud is alleged except that connected with the despatch. [There being no evidence of plaintiff’s complicity with the act, there is no evidence to go to the jury on the subject.] [We cannot submit a fact to the jury to be found, in relation to which there is no evidence, and that is this case.]
    “Although the stock may have been, as time has shown, wholly worthless, it is no defence to this action, unless there was either mistake or fraud. If the defendant, in the purchase, exercised his own judgment, uninfluenced by any improper conduct on the part of the plaintiff, no matter where or how he obtained his information, he must suffer the consequences. The law cannot relieve him from a mere bad bargain. Having failed to make such a defence, [the jury are instructed to find a verdict in favor of the plaintiff for the amount of the note and interest.]”
    The verdict was for the plaintiff for $2715.
    The defendant took out a writ of error, and assigned for error the admission of the note, the rejection of his offers of evidence and the portions of the charge of the court enclosed in brackets.

      W. Davis and II. Green, for plaintiff in error.
    — The plaintiff should have proved affirmatively the cancellation of the stamps: Act of Congress July 13th 1866; Tripp v. Bishop, 6 P. F. Smith 424; McGovern v. Hoesback, 3 Id. 176 ; Walsh v. Carwell, Leg. Int., April 24th 1868, p. 33; Wigham v. Pickett, Am. L. Reg., November 1869, p. 701. Fraud in fact is purely a question for the jury: Garrigues v. Harris, 5 Harris 350; Repsher v. Wattson, Id. 368; Thomas v. Thomas, 9 Id. 317; McIldowny v. Williams, 4 Casey 492; Kaine v. Weigley, 10 Harris 183; Balt. & O. Railroad v. Hoge, 10 Casey 214. Frauds do not ordinarily admit of direct proof; things remaining unproved as well as those proved may be evidence in a case: Myers v. Hart, 10 Watts 104; Stauffer v. Young, 3 Wright 459; Huntzinger v. Harper, 8 Id. 204; Deakers v. Temple, 5 Id. 242; Dark v. Hanks (cited) Chitty on Bills 265; Maples v. Brown, 12 Wright 458.

      May 5th 1870,

      S. Holmes, Jr., and E. J. Fox, for defendant in error.
    — The court should not submit to a jury what would at most but produce a suspicion of a fact: Stouffer v. Latshaw, 2 Watts 167 ; Malson v. Fry, 1 Id. 435; Bradley v. Grosh, 8 Barr 49; Moore v. Miller, Id. 285; Gilchrist v. Rogers, 6 W. & S. 488; Stine v. Sherk, 1 Id. 201; Irwin v. Shoemaker, 8 Id. 76; Benford v. Sanner, 4 Wright 10.
   The opinion of the court was delivered,

by Agnew, J.

— In ruling out the telegram of the 24th of July 1865 to the defendant, the court severed the only link between the note in suit and the fraud that begat it. It is on this ruling only that the refusal of the offer of the transfer of the stock as the consideration of the note can be supported. Indeed, there was already ample evidence in the case of this as the consideration, consisting of the admissions of Jackson of the sale of the stock on the 24th of July, the number of shares, and price of $5.50 per share, the clerk writing the sale of 500 shares, the note for $2250, and the transfer endorsed on the certificate, all dated on the same 24th day of July. Nor can there be any doubt that the forged and fraudulent telegram induced Rees to buy the stock. There is ample evidence of this in the testimony of James H. Stroud and Benjamin S. Jacoby. The only question, therefore, is, whether Jackson was privy to the sending of the telegram to Rees. There was sufficient evidence of this fact to be submitted to the jury. It was not a mere spark dying out in the moment of its birth, but a stream of light thrown directly upon the plaintiff, the strength and clearness of which the jury alone could determine. Men have been convicted and punished on circumstances not more strong. Let us examine the evidence with a view to see whether it had sufficient strength to carry it to the jury. That the telegram was false and fraudulent is clear. That it came from one Boys, a broker in Philadelphia, is evident. These being clear facts, the inquiry arises and must be answered satisfactorily, how did it happen Boys should address Rees in Dr. Stroud’s name just at the moment when Jackson was anxious to sell Imperial oil stock, and to invest in mining stock ? Why did Boys think of Rees at all ? How did he know that Rees would buy stock, and how did he know that he wanted Imperial oil stock ? Boys lived in Philadelphia and Rees in Stroudsburg, a hundred miles or so apart. And if by any possibility we might suppose Boys knew these things, by some act of divination or spiritualistic insight, how did he know or think of Dr. Stroud as a fit person to influence Rees ? And what motive had Boys to act at all ? It seems to be impossible to answer these questions except on one supposition, viz., that some one made the suggestion to Boys. A jury would be justified in this conclusion, and then the inquiry would be, who made the suggestion? The first and most natural conclusion on the evidence would be that it came from some one in Stroudsburg, who had. an interest in the result. Up to this point a jury would scarcely hesitate, and then the question is, does the evidence point to the plaintiff? Who had a motive to act on Rees ? Jackson was the owner of Imperial oil stock, and desired to sell it. This is the kind of stock mentioned in the telegram. Who was likely to think of Rees as a purchaser of this stock ? Jackson had inquired for a purchaser, and was told Rees would probably buy it. Who was operating on Rees to buy before the telegram came ? Jackson sent word to Rees that his Imperial stock was for sale. But Rees failed to come at this call. Some days intervened— this is evident, for Dreher delivered Jackson’s message on the Saturday previous to the 24th of July ; and it was on the Tuesday or Wednesday preceding Jackson spoke to Dreher. Failing to respond to the message, how was Rees to be influenced to buy ? A big strike of oil and a telegram were natural means. Who thought of Dr. Stroud ? In the conversations between Jackson and Dreher the latter had told Jackson, that in buying Bortree’s stock, he thought, Rees was acting on information from Dr. Stroud? Who is Stroud ? The cousin and friend of Rees and a cousin of Jackson’s wife. Who then was so likely to be thought of as Stroud, or one so fit for the purpose ? But a fit instrument to operate in Philadelphia must be found. That Boys was the man is indisputable, for he did it. This is followed by the proof that Boys and Jackson were acquaintances and associates, and that Jackson visited Boys’s office in Philadelphia several times in the summer of 1865; and if the witnesses are believed, their association was of the free and easy kind. So far, the evidence affords considerable probability to the belief that Jackson made the suggestion to Boys to send the telegram to Rees. But in cases of circumstantial evidence there is generally one fact which forms the clinch, and gives a decisive effect to the whole chain. That fact seems to be so here. The telegram arrived at the depot, about a mile away, at 8.30 p. m. It was given by the operator to Troch, to be handed to Rees. Troch did not deliver it till about 8 o’clock, at dark. In a few minutes Rees started off directly to Jackson’s office, found him and Jacoby there, and the stock was purchased the same evening. But Jacoby, the same person, and therefore there is no room for a mistake of time, testifies that in the afternoon of the same day Jackson told him that Rees was coming to his office that night, and he would speak to Rees about the purchase of Jacoby’s stock, of which they were then talking. How did Jackson know that Rees would be at his office that night ? It was a week or more before that he had sent the word by Dreher to Rees. There is no evidence of any previous arrangement, or conversation about the stock. It was evidently the telegram of the big strike of the Imperial which set Rees in motion, and this was not till dark. How then did Jackson know in the afternoon that Rees was to come to his office, unless attributable to the presumed effect the telegram would have on Rees ? If this be so, and the jury and not the court must determine the fact, it is evident that Jackson has furnished evidence of his own knowledge that such a telegram would be sent to Rees. Admitting then that fraud is not to be presumed or to be found on vague or slight conjecture, and that the doctrine is exploded, as we have said several times, of the sufficiency of a mere spark or scintilla of. evidence to go to the jury, yet we have here a chain of circumstances strong enough to bear the weight of the case into the jury box, and lodge it there for their decision. How far it is full proof of the plaintiff’s complicity it will be for the jury to say. This carries with it all the other assignments of error except that as to the stamps. As to it we think there is no error in receiving the note in evidence. The signature to the note was the defendant’s; and the initials on the. larger stamps were his; and the note was stamped to the requisite amount. This was clearly primé facie evidence to carry the note to the jury. The primé facie-presumption arising from the execution of the note, the full amount of stamps affixed, their actual cancellation, and the initials of the defendant on a part of the stamps, would prevent the court from taking from the jury the fact of an authorized cancellation of the smaller stamps.

Judgment reversed, and venire facias de novo awarded.


text:
    Steckel's Appeal.
    1. The Act of April 27th 1855 (Illegitimates) does not legitimatize illegitimate children, even so far as their mother and her next of kin are concerned.
    2. When a bastard dies before his mother, he cannot transmit a right from her to his children.
    3. The words of the act do not extend to the possibility of a future inher itance.
    4. Nothing but express words will give a statute a retrospective effect.
    5. The words of the Act of 1855 are prospective.
    March 22d 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Appeal from the decree of the Orphans’ Court of Lehigh county: No. 438, to January Term 1870. In the estate of Susanna Steckel, deceased.
    ' Susanna Steckel died in January 1868. On the settlement of her estate there appeared to be in the hands of her administrator, for distribution amongst her next of kin, the sum of $1077.44. The distribution was referred to an auditor, before whom the claimants were William Steckel, a legitimate son of the decedent, and the widow and three children of George Getter, an illegitimate son of the decedent, born before her marriage. It appeared before the auditor that Getter had died on the 7th of December 1839, leaving his widow and three children to survive him. Under these facts the auditor awarded the whole fund to William Steckel the legitimate child.
    March 28th 1870,
    The widow and children of Getter filed exceptions to the report of the auditor.
    The Orphans’ Court (Longaker, P. J.) reversed the award of the auditor, and ordered the fund to be distributed, one-half to Steckel and the other half to the representatives of Getter.
    On appeal to the Supreme Court by Steckel this decree was assigned for error.

      P. JE. Wright, for appellant,
    cited Grubb’s Appeal, 8 P. F., Smith 55; Cresoe v. Laidley, 2 Binn. 286; Miller’s Appeal, 2 P. F. Smith 113; Killam v. Killam, 3 Wright 120; Opdyke’s Appeal, 13 Wright 373.

      J. J). Stiles, for appellees,
    referred to Grubb’s Appeal, Opdyke’s Appeal, supra; Stevenson v. Sullivan, 5 Wheat. 207.
   The opinion of the court was delivered,

by

Sharswood, J.

— By the 3d section of the Act of April 27th 1855 (Pamph. L. 368) it is provided “ that illegitimate children shall take and be known by the name of their mother, and they and their mother shall respectively have capacity to take or inherit from each other personal estate as next of kin, and real estate as heirs in fee simple; and as respects said real or personal estate so taken and inherited, to transmit the same according to the intestate laws of this state.”

The question which arose in Grubb’s Appeal, 8 P. F. Smith 55, was whether under this act a bastard could transmit to maternal collaterals his own acquisitions as well as those inherited from his mother. I thought that, giving the words of the statute a liberal interpretation, it included the case, and that a bastard could transmit to his collaterals on the mother’s side not only what ha had inherited but what he had taken by purchase. The decision of the majority was otherwise. “The words of the act,” said Mr, Justice Read, “ are very special, confining its operation as regard* the daughter to real and personal estate taken and inherited from the mother, leaving all her property derived from any other source unaffected by the Act of 1855.” The case certainly establishes that the statute does not legitimatize illegitimate children, even so far as their mothers and her next of kin are concerned. The application of this principle requires us to hold that where a bastard dies before his mother, and therefore never has taken or inherited from her, he cannot transmit a right to his descendants which never was in him. The words certainly do not extend to a mere possibility of future inheritance. Had the legislature intended not merely that illegitimate children but the issue of illegitimate children should inherit, it would have been easy to have said so; but they seem carefully to confine the operation of the enactment to children taking from their mother, so as to exclude the case of grandchildren and grandmothers.

But the construction here contended for goes further, and would give the Act of 1855 a retrospective operation, contrary to the well-established canon that nothing but express words shall be allowed to have that effect. George Getter, the bastard, died December 7th 1839, and he had then no capacity to inherit from his mother. He had not even a possibility. How then could he transmit to his children what he had not himself? All the words of the act are prospective, and evidently were meant to apply only to cases arising subsequent to its passage.

Decree reversed, and now it is ordered and decreed that the balance in the hands of the accountant (after the payment thereout of the costs of this appeal) be paid to William Steckel.


text:
    Neiss versus Foster.
    1. When the assignment of errors is not according to the rules, an objection by the defendant in error will be regarded.
    2. The points should appear in the assignment with the answers of the court, if there be any.
    3. If a trespass be complete, the owner of the land is not divested of his right of action by a subsequent sale.
    4. The right of action for trespass does not pass to the vendee of the land.
    5. Where a suit is in the name of one holding the legal title a recovery may be had and the title to the money be afterwards determined.
    6. It matters not to the defendant who gets the money, if there be a legal party entitled to recover it from him.
    March 22d 1870.
    Before Thompson, 0. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Carbon county: Of July Term 1869, No. 130.
    This was an action of trespass q. c. f., brought November 26th 1867, by Thomas L. Foster, for the use of James S. Smith, against Joseph Neiss. The plaintiff declared that the defendant broke and entered his close, and cut and carried away hemlock trees, pine trees and spruce trees to the value of $1000.

      The plaintiff gave evidence of the cutting on his land by the defendant of white and yellow pine trees, hemlock trees, oak trees and spruce trees.
    The defendant gave evidence that in May 1869, Foster declared that he had nothing “ to do with the property, he had sold it to Smith.”
    Neiss, the defendant, testified that he asked Foster for the white-pine timber on his land, and he told him to go and cut whatever he wanted; Foster was then owner of the land; he also produced a receipt from Foster, dated February 11th 1863, for “ 1900 feet white-pme,” cut on his land. Foster conveyed the land to Charles Smith September 13th 1865. Foster testified that the only liberty he ever gave to the defendant, was to cut two pine trees. Neiss afterwards came to him and said he had cut 1900 feet of timber, and paid for it; Foster knew nothing of his cutting other timber until after he had sold the land; the suit was brought with his consent for Smith’s benefit, for damages done to the land.
    The defendant asked the court to charge:—
    1. That Thomas L. Foster not being the owner of the land at the time this suit was brought, the verdict of the jury must be in favor of the defendant.
    2. That James Smith, Sr., not being the owner of the land at the time of the alleged trespass, the verdict of the jury must be in favor of the defendant.
    3. That if the jury believe that defendant had the consent of Thomas L. Foster to cut the timber upon his land, an action of trespass cannot be sustained, and the verdict must be for the defendant.
    4. That Mr. Foster having testified that the suit has been' brought for the use of James Smith, and that he is to receive the damages, he cannot recover under the Act of Assembly, he not being the owner of the land at the time of the commission of the alleged trespass.
    5. There is no evidence that Thomas L. Foster has assigned any claim for damages for the alleged trespass to James Smith, Sr., and the verdict of the jury must be for the defendant.
    6. That under the evidence in the cause, the plaintiff cannot recover.
    The court (Ryan, P. J., of the Twenty-first District) charged: _.* * *
    “ Trespass upon land consists in the unlawful entry upon the freehold. If the entry is lawful, the fact that the defendant exceeded his authority while upon the land would not make him a trespasser from the beginning. There is this distinction, however, which must be made under the facts of this case. The plaintiff, Thomas L. Foster, swears that he gave the defendant the privilege to cut two white-pine trees. But the defendant swears that the plaintiff Foster gave him a license or privilege to go upon this tract of land and cut white-pine timber; that Foster gave him the right to cut whatever he wanted upon the land. Now, if the privilege was only to cut two white-pine trees, and the defendant after cutting them entered subsequently, and by repeated trespasses cut the other timber, we think the plaintiff can recover in this action for the timber taken at subsequent times to the cutting of the white-pine under the license from Foster. If, however, the whole timber was cut at the same time, the defendant had entered under the authority from Foster and while he was acting under the license from the owner, then the plaintiff cannot recover, for the reason that the exceeding of the authority to cut timber when the entry was lawful would not make the act a trespass. The plaintiff must recover in some other form of action.
    “ Upon the other hand, if the defendant had authority to cut whatever timber he pleased, the plaintiff cannot recover. An authority to cut whatever white-pine the defendant pleased, would not make the cutting of other kinds of timber a trespass. The plaintiff might perhaps recover the value of all the timber cut, but not in this form of action, and under the Act of 1824.” * * * “ The court answer the defendant’s points as follows :—
    “ The 1st point declined. The plaintiff, Thomas L. Foster, was the owner of the land at the time the timber was cut by the defendant. The subsequent transfer of the legal title to Smith did not operate as an assignment of the alleged tort, nor divest the right of action in Foster.
    “ The 2d point declined.
    “ The 3d point affirmed, if the jury so find the facts.
    “ The 4th and 5th points declined.

      “ The legal plaintiff, Thomas L. Foster, being the party to whom the damages, if any, accrued, the making it to the use of Smith would not make it necessary to prove a transfer of the claim for damages to Smith. The right to the damages can be ascertained after the determination of this suit in some other way, or in an issue to determine the right. The defendant is not interested in the question to whom the damages may go. He is entitled to have the record so made as to he a bar to subsequent suits for the same cause, and as the legal plaintiff is upon the record, this record would be a bar to a subsequent action for the same cause,
    “ The 6th point declined.”
    The verdict was for the plaintiff for $250.
    The defendant removed the case to the Supreme Court. His assignments of error were in the following form:—
    I. The court erred in answering the defendant’s 1st point as follows: “ The 1st point read and the instruction declined. The plaintiff, Thomas L. Foster, was the owner of the land at the time the timber was cut by the defendant. The subsequent transfer of the legal title to Smith did not operate as an assignment of the alleged tort, nor divest the right of action in Foster.”
    March 31st 1870,
    II. The court erred in answering defendant’s 2d point as follows : “ The 2d point read and the instruction declined.” ' j

    III. The court erred in answering defendant’s 4th point as fol- » lows : “ The 4th point read and declined.”
    IY. The court erred in answering defendant’s 5th point as follows : “ The 5th point read and declined. The legal plaintiff, Thomas L. Foster, being the party to whom the damages, if any, accrued, the marking it to the use of Smith would not make it necessary to prove a transfer of the claim for damages to Smith. The right to the damages can be ascertained after the determination of this suit in some other way, or in an issue to determine the right. The defendant is not interested in the question to whom the damages may go. He is entitled to have the record so made as to be a bar to subsequent suits for the same cause, and as the legal plaintiff is upon the record, this record would be a bar to a subsequent action for the same cause.”
    Y. The court erred in answering defendant’s 6th point in the negative.

      P. Harvey and 8. A. Bridges, for plaintiff in error.
    — Trespass under the Act of March 29th 1824, Purd. 961, pl. 2, can be maintained only by the owner of the land: Tammany v. Whittaker, 4 Watts 221. Foster had no interest when the suit was brought, and could therefore show no title to recover: Bishop v. Hayward, 4 T. R. 470. Declarations of party are evidence to show that his title is bad: Marshall v. Sheridan, 10 S. & R. 268; Galbraith v. Elder, 8 Watts 81; Dickinson v. Dickinson, 9 Metc. 471; Quinlan v. Davis, 6 Wharton 169.

      M. M. BimmicJc, for defendant in error,
    objected that the assignment of errors was not in accordance with the rules of court. The owner of the land at the time of the trespass can maintain the action: Armstrong v. Lancaster, 5 Watts 68 ; Montgomery v. Cook, 6 Id. 241; Commonwealth v. Lightner, 9 W. & S. 118. License cannot be given in evidence under the general issue: Bennett v. Allcott, 2 T. R. 166; Gronover v. Daniels, 7 Blackf. 108; Crabbs v. Fetrick, Id. 373. If one exceeds his license he is liable in trespass for consequential damages: Kissecker v. Monn, 12 Casey 313; Act of April 20th 1846, Purd. 697.
   The opinion of the court was delivered,

by Thompson, C. J.

— The defendant in error, in effect, demurs to the assignment of errors by the plaintiff in error, for want of compliance with the rules of court. It is his right to do so. By reference to the rules of this court, 6 Harris 578, and to the case of Buckholder v. Stahl, 8 P. F. Smith 371, it will he seen that the objection is well taken, and when so taken we are pledged by the rules and the cases mentioned to regard it. These references will explain fully wherein these assignments are defective. The points should appear in the assignments of error, with the answers of the court thereto, if there be any. The former of these requisites is wanting. The latter is not.

We will, however, step out of our way, to say, which we may do when we would affirm, that the learned judge was altogether right in charging as he did, that if the trespass was complete while. Foster, the legal plaintiff, was the owner of the land, the right of action immediately accrued to him, and was not divested by his subsequent sale to another; nor did it pass to that other by the conveyance. He was also right in disregarding the use plaintiffs in the case. Indeed, this is anomalous in torts. In fact, strictly speaking, it is so in most cases, beyond possibly serving, under some circumstances, as notice of an equitable assignment; perhaps, rather as evidence of it. In this case- the title to the money, as the learned judge properly said, could be determined after recovery had. It is no matter to the defendant who gets it, if there be a legal party entitled to recover it from him.

Judgment affirmed.