author: Mr. Justice Gordon

text:
    Philadelphia and Reading Railroad Company versus Anderson.
    1. Where, for a consideration, a railroad company undertakes to transport a passenger from one point of its line to another, there arises an implied contract on the part of the company that it has, for that purpose, provided a safe and sufficient road, and that its cars are safe and trustworthy.
    2. Where a passenger is injured by an accident arising from a collision, or a defect in the machinery or roadway, he is required, in the first place, to prove no more than the fact of the accident and the extent of the injury; a prima facie case is thus made out, and the onus is cast upon the carrier to disprove negligence.
    3. This prima facie presumption may be overthrown by proof, to the satisfaction of the jury, that the injury complained of resulted from inevitable accident, or from something against which no human prudence or foresight could provide.
    4. Where an accident occurs by reason of the washing away of an embankment of a railroad because of insufficient drainage, the company will not be relieved of liability by the fact that the road was constructed under the supervision of a competent engineer, and that the drainage, at the point of the accident, was provided for in a manner directed and approved by him.
    5. The fact that the defendant is the lessee of the road does not relieve it from the consequences of its own negligence, and it was bound to see that the road, whether owned or leased, was safe and sufficient between the points named on the passenger’s ticket.

      6. Where questions should not have been allowed, but the answers thereto are unexceptionable, this court will not reverse therefor.
    7. Laing. v. Colder, 8 Barr 479 ; Sullivan v. Railroad Co., 6 Casey 234; Meier v. Railroad Co., 14 P. 1?. Smith 225 ; Railroad Co. v. Napheys, 9 Norris 135, followed; and Mansfield Coal Co. v. MoEnery, 10 Id. 185, distinguished.
    May 7th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Siiarswood. O. J., and Green, J., absent.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1880, No. 106.
    Trespass on the case by Harman Anderson against the Philadelphia & Reading Railroad Company, to recover damages for injuries alleged to have been received by reason of the negligence of defendant.
    The declaration averred that Anderson on the 4th of October 1877 was a passenger in the cars of the defendant company; that while passing over the line of the Pickering Valley Railroad, which was leased and operated by the defendant, he was injured by the car in which he was riding being thrown from the track in the vicinity of Kimberton station, on the line of said road.
    In the first count there was an averment of negligence on the part of the defendant and its servants generally in the management of the train.
    In the second count, after an averment of the duty of the defendant to use proper care and skill in maintaining and keeping its tracks so that the plaintiff might be safely carried, of making up its train in a proper and safe manner, and of placing the locomotive in such a way that its headlight might show the condition of the track, it was alleged that by reason of a break in the track and embankment supporting it near Kimberton station, and by reason of the negligence of the defendant and its servants, the car in which the plaintiff was riding was thrown from the track, and plaintiff was injured.
    In the third count, after an averment of the duty of the defendant to keep and- maintain the track, embankments and culverts in good repair, and to erect and maintain culverts and drains suitable to pass water under the embanknients wherever it was likely to flow, it was alleged that by reason of a washout of an embankment on the Pickering Valley road, caused by the negligence of the defendants and its servants, the car in which plaintiff was riding was thrown from the track.
    At the trial, before Livingston, P. J., it appeared that Harman Anderson, on October 4th 1877, purchased a ticket at Chester Springs station on the Pickering Valley Railroad, to go to and return from Schwencksville, a station upon the Perkiomen Railroad. Both the Pickering Valley and Perkiomen Railroads were at that time operated by the Philadelphia and Reading Railroad Company as lessee. The journey to Schwencksville was safely accomplished, and in the afternoon plaintiff left that place upon his return trip. The train in which he was a passenger arrived at Perkiomen Junction sometime before six o’clock, at which place, having changed cars, he proceeded by the main line of the Reading Railroad to Phoenixville, about two and a half miles, and having again changed cars at that point, proceeded, at 5.58' P. M., in a train of the Pickering Valley road, for his destination, Chester Springs. This latter train consisted of the engine reversed, two passenger cars and a milk-car, in the order name'd, and had proceeded about two and a half miles to a point a little east of Kimberton, when it was wrecked by running into a chasm formed by the washing out of an embankment, and Mr. Anderson, who was seated in the front part of the second passenger car, received the injuries, to recover compensation for which the present action was brought. The engine and the two passenger ears fell into the chasm ; the milk-car was left standing upon the brink. A number of the passengers were killed, as were also the engineer and fireman of the train, and many more were injured.
    No previous warning or signal of danger had been given by the engineer of the train, and as one of the plaintiff’s witnesses testified, the first he knew of any danger was when he “ felt a jolt in the car, and the lights all went out, and the hind end of the second car came crushing in on us.”
    The train had been running slowly, with the headlight burning.
    The washing out of the embankment occurred during an unusual storm of rain and wind, which the defendant contended was of such a character as to defy all reasonable precautions adopted for the safety and security of the embankment, and that its destruction was due to an “ act of God.”
    The plaintiff, however, contended that the accident was caused, not solely by the storm, but by that combined with the negligence of the défendant in running the train with the. engine reversed, and with the cars in the position they were, and in not constructing the embankment in a proper manner.
    The defendants, inter alia, submitted the following points, to which are appended the answers of the court:
    6. If the jury find that the railroad was constructed by the Pickering Valley Railroad Company under the supervision of a competent engineer, that the drainage at the place where the accident occurred was provided for in a manner directed or approved by him, that the road .was thereafter leased to the defendants, and that the embankment at the said place was subsequently washed out by a storm of unusual and extraordinary violence, then the defendants are not liable for any error of judgment on the part of such engineer as to the drainage, even if such error occasioned the accident.

      Ans. “ The sixth point we cannot affirm as stated. If the jury find from the evidence that the railroad was constructed by the Pickering Valley Railroad Company under the supervision of a competent engineer, that the drainage, of the embankment where the accident occurred was constructed in the manner directed and approved by him, was sufficient for the purpose of draining the area stated in the testimony in cases of ordinary and usual rainfalls an<j storms without injury to the embankment, that it was leased to the Philadelphia & Reading Railroad Company, and the drainage continued to be sufficient in cases of ordinary rainfalls and usual storms, up to the time of the accident, and that it was then washed out and broken by an unusual and extraordinary storm alone, the defendant would not be liable. But the fact that defendant had leased the road from another (who constructed it) and operated it, carrying passengers upon it, will not shield defendant from liability where an injury is ♦sustained by reason of its negligence. Defendant is a common carrier of passengers, and as such is bound to see that its road, whether owned or leased, is safe and sufficient between the points indicated on the passenger’s ticket. That is implied by his contract, and the condition of the rails and road-bed is a matter .of at least equal importance to passengers with the condition of the cars in which they ride, and the road-bed must not only be properly constructed, but must be kept in good condition, at least so far as the carrier can secure it by care and diligence, and if defendant failed so to do it would be liable though only a lessee in the same manner and to the same extent as if it had constructed the road itself. For if there is any one duty more than another imperatively incumbent upon a railroad company, it is to have their track in a sound and safe condition.”
    7. That there is no evidence from which the jury can find the' defendants liable to the plaintiff for the alleged negligence of running the locomotive backward with the tender in front.
    8. That there is no evidence from which the jury can find the defendants liable to the plaintiff for the alleged negligence of running the train with the milk-car in the last place.
    Ans. “We answer these points affirmatively. The matters contained in these points would not be sufficient without proof that they caused the accident or contributed directly to it; but the jury will consider the evidence relating to the matter contained in these points with the other evidence in the cause, in deciding whether or not defendant has been guilty of negligence.”
    In the general charge, the court, inter alia, said:
    “ The Supremo Court of Pennsylvania has said that [when a railroad company undertakes the transportation of a passenger for an agreed price, the contract implies that they are provided -with a .safe and sufficient railroad to the point indicated ; that their -cars are staunch and roadworthy.] (Fourteenth assignment of error.) ■That means have been taken beforehand to guard against every apparent danger that may beset the passengers ; and that the servants in charge are tried, s.ober and competent men; that when in the performance of this contract a passenger is injured without fault on his part, the law raises' prima facie a presumption of negligence and throws on the company the onus of showing that it did not exist; [that where a passenger, seated as Mr. Anderson has shown you he was, in a railroad car, is injured in a collision, or by the overthrow of a' car, the breaking of an axle or other part of the machinery, he is not required to do more in the first instance than to prove the fact and show the nature and extent of his injury. A prima facie case is thus made out, and the onus is cast upon the carriers to disprove negligence.] * * * (Fifteenth assignment.)
    “The plaintiff having proven that he purchased a ticket from a ticket agent of the railroad company at Chester Springs, entitling him, for the consideration paid, to a passage from that point to Schwencksville and return, on October 4th 1877; that he entered the cars on that day and seated himself therein as a passenger, and while in their car as a passenger he was injured at the time and place and in the manner stated by the witnesses; the law raises a presumption that his injuries were caused by the’negligence of the defendant, which presumption may be rebutted by the defendant; [but plaintiff, by his proofs presented, made out what is termed in law a prima facie case, which had the defendant offered no evidence, would have entitled him to a verdict, and which threw on the defendant the onus or burden of disproving negligence.] * * * (Sixteenth assignment.)
    [The presumption of law is, as we have stated to you, that the injuries of the plaintiff were caused by negligence on the part of the defendant. This legal presumption, which is only an inference from general experience, remains ■ in force until a countervailing presumption of fact is established. It may be overthrown and repelled by the defendant proving to the satisfaction of the jury that the injury complained of resulted from “inevitable accident,” or, as it is more commonly termed, the “act of God,” or that it was caused by something against which no human foresight and prudence could provide.] (Seventeenth assignment.)
    The other material questions raised in the court below will be found stated in the opinion of this court.
    The verdict was for the plaintiff for $8500, and after judgment thereon the defendant took this writ, and alleged that the court erred, inter alia, as set forth in the above assignments of error.

      James E. Gowen, H. M. North and James Boyd, for plaintiff in error.
    To make a railroad company liable to a passenger for injuries there must be shown a want of due care on the part of the company : Meier v. Pennsylvania Railroad Co., 14 P. F. Smith 225; Adams Express Co. v. Sharpless & Sons, 27 Id. 516. The carrier of passengers does not, by his contract, warrant the roadworthiness of his road and cars. He contracts for and is oMiged only to take due care to carry the passenger safely: McPadden v. N. Y. C. Railroad Co., 44 N. Y. 478; Reedheard v. Midland Railway Co., 2 Q. B. 412; 4 Id. 379. It does not suffice for one suing for an injury received whilst a passenger in the defendant’s cars, to prove simply that while being so carried he received an injury. The nature of the accident, and the circumstances attending it, must be such as have a tendency to prove negligence: Lackawanna and Western Railroad Co. v. Napheys, 9 Norris 135; Le Barron v. East Boston Ferry Co., 11 Allen (Mass.) 312; Latch v. Runmer Railway Co., 3 H. & N. 930; Deyo v. New York Central Railroad Co., 34 N. Y. 9. Plere the carrier of passengers had shown that the embankment had been destroyed by an extraordinary storm, and it surely cannot be the law that he is bound to go further and show another defence to the action, namely, want of negligence upon his part. It would in effect be requiring him to prove two facts as a defence, the “act of God” and “ due care” upon his part, either one of which would he a sufficient defence. See Memphis and Charleston Railroad Co. v. Reeves, 10 Wallace 176; Farnham v. Camden and Amboy Railroad Co., 5 P. F. Smith 53; Express Co. v. Sands, Id. 140; Patterson v. Clyde, 17 Id. 500; Forbes v. Dallett, 9 Phila. R. 515; Livezey v. Philadelphia, 14 P. F. Smith 106.
    The Court erred in the instruction to the jury that to entitle the plaintiff to claim exemption by reason of the act of God, the act must have been of such a character that no human foresight and prudence could have provided against it: Whart. on Negligence, sect. 557; Philadelphia and Reading Railroad Co. v. Adams, 8 Norris 31; Pennsylvania Railroad Co. v. Fries, 6 Id. 234. In providing drainage for the embankment, if the plans and directions of a competent and skilful engineer were followed, the defendant was relieved from all liability for the results of th.e accident: Ardesco Oil Co. v. Gilson, 13 P. F. Smith 146; Mansfield Coal Co. v. McEnery, 10 Norris 185.

      John II. Brinton, William Aug. Atlee, Charles U. Pennypaeker and B. F. McAtee, for defendant in error.
    The charge of the court is in the language used by Judge Woodward in Sullivan v. Philadelphia and Reading Railroad Co., 6 Casey 234, which is twice referred to and approved in Meier v. Pennsylvania Railroad Co., 14 P. F. Smith 225, and approved in ipsissimis verbis in Delaware, Lackawanna and Western Railroad Co. v. Napheys, 9 Norris 135. If the injury was occasioned by the error of the engineer, then the engineer was not competent or he would not have committed the error; if it was occasioned by his negligence, then the defendant is responsible, for while carriers of passengers do not insure the safety of passengers, they certainly do' contract that there has been no negligence in the construction or maintenance of the roadway or rolling-stock, and that there will be none in the running of the train. Nor can it make any difference that the defendant here occupies the position of a lessee. It was the carrier and it was the party to the contract; it contracted with the defendant that there had been no negligence in the construction or maintenance of the roadway over which it agreed to carry him, and that contract having been broken, it must answer for the breach. In Grote v. Chester and Hollyhead Railroad Co., 2 Exch. Rep. 251, cited and approved in Francis v. Cockrell, Law Rep., 5 Q. B. 184, the court says: “It cannot be contendéd that the defendants are not responsible fo.r the accident merely on the ground that they have employed a competent person to construct the bridge.” See also, Brehm v. The Great Western Railway Co., 34 Barb. 275.
    May 24th 1880.
   Mr. Justice Gordon

delivered the opinion of the court,

As those rulings of the court below' which put the burthen of proof upon the defendant, plaintiff in error, have been treated in the argument in this court as of primary importance, we will first examine and dispose of the exceptions to them. These exceptions are numbered, respectively, 14, 15, 16 and 17, and the rulings of which they complain may be summed up as follows: that where for a consideration a railroad company undertakes to transport a passenger from one point of its line to another, there arises an implied contract, upon part of the company, that it has, for that purpose, provided a safe and sufficient road, and that its cars are sound and roadworthy; that where the passenger is injured by any accident arising from a collision or defect in machinery, he is required, in the first place, to prove no more than the fact of the accident and the extent of his injury; that a prima facie case is thus made out, and the onus is cast upon the carrier to disprove negligence; that, in the case trying, the legal presumption was that the injuries to the plaintiff were caused by the negligence of the defendant, and that this presumption continued until a countervailing presumption of fact was established. To this the learned judge added, that this prima facie presumption might be overthrown by proof, to the satisfaction of the jury, that the injury complained of resulted from inevitable accident, or from something against which no human prudence or foresight could provide. Now, we must say, the able argument of the learned counsel to the contrary notwithstanding, that a better summary of the law governing cases of this kind could, scarcely have been framed. It is, indeed, almost a transcript of the ruling of this court, as delivered by Mr. Justice Woodward, in Sullivan v. The Railroad Co., 6 Casey 234. The case referred to being in point, it ought, of itself, to settle this part of the present contention, unless there are other cases on our books which teach a contrary doctrine. But, so far from this being so, the very contrary is the fact. In Laing v. Colder, 8 Barr 479, Mr. Justice Bell says, when speaking of the responsibility of passenger carriers: “ But though in legal contemplation they do not warrant the absolute safety of passengers, they are yet bound to the exercise of the utmost diligence and care. The slightest neglect against which human prudence and foresight may guard, and by which hurt or loss is occasioned, will render them liable to answer in damages. Nay, the mere happening of an injurious accident raises, prima facie, a presumption of neglect, and throws upon the carrier the onus of showing it did not exist. This punctilious attention to the safety of the passenger embraces the duty of providing strong and sufficient carriages, or other conveyances for the journey, in every respect, sea, road and river worthy; safe and steady horses, or other means of progression, and skilful drivers, conductors and other agents, whose duty it is to use every precaution against danger.” This language is certainly very strong, full and to the point, and Sullivan v. The Railroad Co. is but an iteration of it. Both these cases are cited by Mr. Justice Agnew in Meier v. The Railroad Co., 14 P. F. Smith 225, and their language reiterated. Furthermore, in the case of the Delaware, Lackawanna & Western Railroad Co. v. Napheys, 9 Norris 135, Mr. Justice SteRrett makes use of the following language : “ If a passenger seated in a railroad car is injured in a collision, or by the overthrow of a car, the breaking of a wheel, axle or other part of the machinery, he is not required to do more, in the first instance, than to prove the fact, and show the nature and extent of the injury. A prima facie case of negligence is thus made out, and the onus is cast upon the carrier to disprove negligence.” It is thus manifest, that the rulings of the learned judge of the court below, on this point, are abundantly supported by the rulings of this court, and that the exceptions taken thereto must be dismissed. In immediate connection with this part of the case, the refusal of the court to affirm the defendant’s sixth point may be considered. That point required the instruction, that if the railroad in question had been constructed under the supervision of a competent engineer, and that the drainage, at the place where the accident happened, was provided for in a manner directed and approved by him, that subsequently the road was leased to the defendant, and that the embankment was washed out by a storm of unusual violence, the defendant was not liable for any error of judgment of the engineer. even if such error occasioned the accident. This point, curiously enough, draws upon the doctrine of inevitable accident to help out a principle of law, sufficiently strong, in a proper case for its application, to stand alone. It is a principle, the latest enunciation of which is found in the case of the Mansfield Coal and Coke Co. v. McEnery, 10 Norris 185, in which it was held to be a sufficient answer to an action brought by an employee, for an injury resulting from the falling of a bridge of the company by which he was employed, that such bridge had been built by a competent builder. But this doctrine can have no application to the case in hand, and for the very good reason that a passenger is not an employee. The one by his contract is presumed to run the ordinary risks of the machinery and appliances he is engaged to supervise or use; he is also held to a knowledge of the character and obvious defects of such machinery and appliances, as well as the skill- and habits of his co-servants. A passenger, on the other hand, neither can know, nor is presumed to know, anything about these things. He has paid for his passage, and he is wholly passive in the hands and at the mercy of the transportation company and its agents. The doctrine advocated by the defendant’s counsel, by’ which the passenger would be put on a par with an employee, will not do; it accords neither with reason nor precedent. The cases of Grote v. The Chester and Hollyhead Railroad Co., 2 Ex. 251, and Francis v. Cockrell, Law Rep., 5 Q. B. 184, are full in point. In the former, the action was by a passenger against a railroad company for damages resulting from the breaking down of a bridge whilst the train was passing over it, and it was held, that whilst it was a question for the jury, whether the defendant had engaged competent engineers, who had adopted the best method and used the best materials in the construction of the bridge, yet thé mere fact of its having engaged such persons would not relieve it from the consequences of an accident arising from a deficiency in the work. In .the-latter, the action was for damages resulting to the plaintiff from the breaking duwm of a grand stand, erected for the viewing of certain races, and which had been built by a competent person, and leased to the defendant, he, the defendant, having received a compensation from the plaintiff for admission to the stand; it was held, that the plaintiff could sustain an action against the defendant for the damage thus sustained, although the defendant was, himself, free from all negligence, and had employed a competent person to erect- the stand. In view of these authorities, we have no doubt but that this sixth point was properly refused, and that the court was right in saying to the jury that the mere fact of the defendant being a lessee of the road did not release it from the consequences of its own neglect, and that it was bound to see that its road, whether owned or leased, was safe and sufficient between the points indicated on the plaintiff’s ticket. The defendant’s counsel, however, most' earnestly contends that these rules do not apply to the case in hand, because the accident was occasioned by a condition of things which the company could neither foresee nor provide against; that it tvas the immediate result of the great rain storm which occurred' at that time; a storm unprecedented in the history of the country, and one which set at defiance all human skill and prudence. This, however, was the very point in controversy, and the learned judge told the jury, that if the facts were as above stated, they must find for the defendant.

But he also told them that if the immediate cause of the disaster was the want of a proper construction or drainage of the embankment, the fact of the storm would not, of itself, avail as a defence. In this we think he was correct. The engineers who were examined on part of the plaintiff, were of the opinion that the embankment ivas not properly drained, that the arrangements for that purpose were faulty, and that had there been a culvert through it of proper dimensions, the rain-fall, great as it was, would have produced no serious impression upon it. It is true, indeed, that the experts produced upon part of the defendant were of a different opinion. But the jury believed the former rather than the latter; this they had a perfect right to do, and so the matter ends so far as either this court or the court below is concerned. In this connection we may notice the complaint embodied in the tenth assignment. John A. Wilson was asked by the defendant’s counsel what practical experience he had as to the effect of a down-pour of rain upon a strong and well-built railroad embankment, when the case was not complicated by any question of drainage. On objection this question was ruled out. About the rectitude of this ruling we might have some doubt, but as the question was immediately afterward put in a slightly different form, and without objection, fully answered, we cannot see that the defendant has anything material of which to complain. The proposal to -pro.ve, by the same witness, that water is used in hydraulic mining, and that it gains force by being thrown from an elevation, was properly ruled out, since, however well it might have served to illustrate hydraulic mining in the west, it had nothing to do with the case in hand. The exceptions covered by the 3d, 4th, 6th, 6th, 7th, 8th and 9th assignments, seem, at first blush, far more serious, and the questions therein stated ought not to have been allowed; nevertheless, an examination of the testimony satisfies us that no harm was done thereby to the defendant, since the answers were such, and such only, as the plaintiff would have been entitled to had the questions been properly framed. The. questions complained of were, “ What, in your opinion, would be a proper method of building the road at that point?” and, “What, in your judgment, would it be proper for the lessee or user of a railroad to do at a point like that, if he saw, when he took possession, no provision for drainage ?” The first of these is objectionable in that it is too general and indefinite, and calls upon the witness for his opinion, not only upon what ought to have been done to insure the permanence and stability of the road at the point in controversy, but also, as to how it ought to have been constructed in every and all particulars, though such particulars might be foreign to the matter in issue— the proper drainage of the embankment. The second is less objectionable, since it calls the attention of the witnesses to the controverted point, the drainage as above stated. When, however, we come to examine the answers of the experts, we find them such as were legitimate and proper. Mr. Slaymaker says, “ I would certainly adopt some way of passing the water which should gather in that basin.” Mr. Wright: “I should think the proper thing would be to make provision for drainage such as the circumstances seemed to require.” Mr. Sharpless: “I think it would be his duty,” that is the lessee’s, “to provide some means of drainage to get rid of the water;” and the testimony of Messrs. Osborne and Mifflin is of the same import. It will thus be seen that whilst the questions were not such as they ought to have been, the answers were unexceptionable, hence, no injury resulted to the defendant from the error committed by the court. Again, complaint is made of the answers to the defendant’s 7th and 8th points. These points required the court to instruct the jury, that there was no evidence from which they could find the defendant liable to the plaintiff for alleged negligence in running the locomotive backwards, with the tender in front and milk-car in the rear. The answer was as follows: “We answer these points affirmatively. The matters contained in these points would not be sufficient without proof that they caused the accident, or contributed directly to it; but the jury will consider the evidence relating to the matters contained in these points with other evidence in the case, in deciding whether or not defendant has been guilty of negligence.” This answer is somewhat ambiguous, but as it is more favorable to the defendant than it ought to have been, we cannot understand why it is complained of. Three locomotive engineers say that an engine running backwards cannot be so readily handled as when in its proper position, and that the light is unsteady and unreliable. Indeed, any one might know that running an engine hind end foremost, with the tender in front, especially at night and in a storm, when the utmost vigilance is required, was, in itself, a dangerous circumstance. Then, as to the position of the milk-car, it is sufficient to say that the defendant’s own rules condemned that, and pronounced such an arrangement dangerous. In this instruction the court erred, but the error consisted in not negativing, and that emphatically, the defendant’s points. We next turn to the first assignment, which complains of the admission of the question put on part of the plaintiff, “ What is your estimate of your injuries in money ?” This question ought not to have been permitted, but the exception is rather to the question than to the answer, for the answer simply amounts to nothing. It was, “I would sooner have my health than ten thousand dollars.” This, of course, comes to nothing in the way of fixing value, and it was so treated by the court, for the jury was instructed that, upon this subject there was no evidence, and under proper directions that body was allowed to fix the damages as they should think just from all the circumstances of the case. Moreover, that this testimony produced no effect upon the jury, is obvious from the verdict. The error thus being harmless, we cannot reverse the case on account of it. In the remaining exceptions we discover nothing requiring comment, and-without more they are dismissed.

Judgment affirmed.

A motion for a re-argument was subsequently made, which the court, on June 21st 1880, refused.


source: Caselaw Access Project

author: Per Curiam. —

license: Public Domain

text:
    Brown’s Appeal.
    A married woman loaned money to her husband out of her personal estate, and as security therefor took a judgment in the name of a trustee. To enable her husband to obtain a new loan she certified in writing, with the assent of her husband, that the judgment to secure this new loan should take precedence of her judgment. This certificate was entered on the record and attested by her husband, and the loan was then made and the judgment given. The husband’s real estate was sold at sheriff's sale, and in distributing the proceeds, Held, that this certificate was an executed contract, and operated as an immediate and unconditional release of her prior right of lien to the amount of the new judgment, and she could not repudiate it on the ground that she was a feme covert.
    May 7th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrbtt, JJ. Sharswood, C. J., and Green, J., absent.
    Appeal from the Court of Common Pleas of Lancaster county: Of May Term 1880, No. 1.
    Appeal of Emeline H. Brown from the decree of -the court distributing the proceeds of the sheriff’s sale of Kirk Brown’s real estate.
    The following facts were found by the auditor, George M. Kline, Esq., appointed to distribute the fund.
    Kirk Brown being.the owner of real estate in Lancaster county, borrowed money, for which as securities for the loans, he gave his judgment bonds, which were duly entered in the Common Pleas of said county. When his real estate was sold, the following judgments appeared against him in the order below stated: 1. Sanders McSparran, entered April 1st 1873; $3000 paid out of proceeds of sale. 2. Timothy Haines, for use of Emeline H. Brown, dated April 1st 1873, entered June 23d 1873, for $5000. 3. Mary T. E. Hiester, now Leyis, dated April 2d 1877, entered on same day for $3000.
    The following endorsement was on Mrs. Brown’s judgment:—
    “ April 2d 1877. This is to certify that I give my consent for the judgment bond of Mary T. E. Hiester, amounting to three thousand dollars, to have preference over mine.
    Emeline H. Brown.”
    “Witness present: Kirk Brown.”
    Emeline H. Brown was at the time, and still is, the wife of Kirk Brown. The loan by Mrs. Hiester was made through her attorney. It was admitted, “ that Mrs. Hiester refused to give the money at the time Kirk Brown asked the loan of‘$3000, unless Mrs. Brown would agree to postpone the lien of her judgment in fávor of the one to be given to her, and that Kirk Brown accordingly produced the consent of his wife written on the'back of the bond,” and attested by him.
    Kirk Brown testified that “ his wife did not get a dollar of this money;” but from his testimony it appeared that she signed the consent on the back of the judgment, that she knew her husband was going to get $3000 from Mrs. Hiester, for which he was to give his judgment; that he asked her to sign the consent on the back of the bond, which she did, that this consent was presented to Mrs. Hiester’s attorney, and then he got the money, for which this judgment No. 3 was given.
    The auditor reported :—
    ■“ Two facts distinctly appear : 1. The consent was voluntarily given, and executed and attested by the husband. 2. Without this consent of preference of lien, Mrs. Hiester would not have loaned this money to Kirk Brown.
    “ Outside of this paper of April 2d 1877, the order of distribution would unquestionably be: 1st. To the judgment of Mrs. Brown. 2d. To the judgment of Mrs. Hiester. Under the agreement or certificate of April 2d 1877, Mrs. Hiester claims that her judgment, although later in time of entry, has preference in payment. This is resisted by Mrs. Brown, who insists that the lien of her judgment is not to be postponed by any act of hers, because: 1. She was and is a married woman. 2. The contract is executory and cannot be specifically enforced against her. 3. She received no consideration for her act.
    “ These antagonistic positions raise the contention in this case, and present the question, can a married woman holding a judgment against her husband’s real estate surrender with his consent her preference of lien in favor of a junior judgment-creditor, when the loan of this junior judgment-creditor was made upon the faith of her act of surrender, and without it would not have oeen made. This is a case of the separate estate of a married woman, and is governed by the rules of law regulating the disposition and control of such interests, and differs materially from those equitable estates or interests which are created for her sole and separate use, and over which she has no control, except so far as it is given by the instrument creating them.
    “ The Act of 11th April 1848, is restraining and protective. While it gives a married woman no powers (except in the specified cases of a will, &c.), that she did not possess .before it does not deprive her of any that she had previously enjoyed. It protects the wife’s estate from the encroachments of the husband or his creditors. The husband now has no power to transfer or encumber it, save in the manner allowed by the act. But her power of disposition, either for her own use or for his benefit, continues as it existed prior to this enactment: Haffey v.. Carey, 23 P. F. Smith 431; Bond v. Bunting, 28 Id. 215-16; Brunner’s Appeal, 11 Wright 73; Moore v. Cornell, 18 P. F. Smith 320; Fryer v. Rishell, 3 Norris 521; Ilinney v. Phillips, 14 Wright 382; Church v. Jaques, 17 John. 449.
    “ If it be to dispose of her real estate by conveyance, or make a special pledge of it by mortgage, the husband must join in the act, and all the forms' requisite of the Act of 1770 be carefully observed. If it -be to dispose of her personal estate, that requires no separate acknowledgment. She may give her money or other personal effects to her husband or to a stranger, with his knowledge and consent; she may.assign her choses in action, her husband joining in the act or assenting to it; and having the power to do so, the instrument employed will be construed so as to carry out the intention of the parties.
    “ She may let her husband have the effect of the benefit of her separate estate, ‘ and whether she has made a prudent or imprudent, a good or bad disposition of the estate, is not to be made a test, whereby the validity of such disposition, whatever it may be, is to he determined:’ Totvers v. Ilagner, 3 Whart. 48; Hoover v. The Samaritan Society, 4 Id. 445.
    In this case Mrs. Brown made no contract, creating a personal liability or a charge upon her estate. All that she did was to execute and deliver an instrument intended to control an incident to her judgment in relief of her husband, and with his assent. Suppose she had assigned this judgment in toto to her husband, or to a stranger with his consent, is there any principle of law or equity, outside of fraud or duress, or mental incapacity, by which she could be relieved from her voluntary act ? Or suppose, for the purpose of raising money to promote the advantage or benefit of her husband, she had assigned three thousand dollars of her judgment to Mrs. Hiester, and then loaned the money received to her husband, who lost it by the misfortune of trade, or squandered it by profligacy, could she repudiate her assignment and demand the whole sum represented by her judgment for her own use? This' would be a fraud so gross as to offend every sense of right. Or suppose Mrs. Brown, with her husband, had released this judgment for the purpose of giving Mrs. Hiester the first lien, and after that a new judgment for the old debt was entered in Mrs. Brown’s favor, upon a distribution following a judicial sale, could there be any pretence of claim made to transpose these judgments and give to Mrs. Brown the first lien ?
    “ If this married woman, with her husband’s consent, could have assigned or released, in whole or in part, this judgment, thereby extinguishing to either extent her estate represented by this security, why cannot she, under like circumstances, do a lesser act, which does not destroy the debt, but only affects the lien thereof to a limited extent ? The husband was the actor through whom the wife acted. Can she bind herself by acting with her husband in an arrangement of this character ? The language of the court in McCullough v. Wilson, 9 Harris 436, is so tersely applicable to this case that it is here quoted : ‘ True, she did not bind herself by a separate acknowledgment, but that form of proceeding does not apply to such an act. True, also, a door is here open through which the wife may be imposed upon by her husband; but we find it open and would not shut it, for it is opened by the very confidence that ought to exist between husband and wife.’ * * * With these views the auditor appropriates- the fund: 1st. To the payment of the judgment of Mrs. Hiester, now Levis. 2d. The balance on the judgment held for the use of Mrs. Brown.”
    Mrs. Brown excepted. The court, Patterson, A. L. J., overruled the exceptions and confirmed this report, whence this appeal.

      J. Hay Brown and H. M. North, for appellant.
    The single exception in this state to the rule that the bond of a married woman, no matter how meritorious may be its consideration, is utterly void, is her judgment-bond given to the vendor of real estate to secure the payment of purchase-money; and as a personal obligation it is invalid: Brunner’s Appeal, 11 Wright 67; Fryer v. Rishell, 3 Norris 521. In these cases it would have offended every sense of-right.for her to repudiate her invalid obligation. She is not bound even where she has received full consideration, and in this case, Mrs. Brown having received no consideration, the moral sense cannot be greatly offended by her determination to stand on her legal rights and claim her own. We know of no case in which a married woman has been held to a specific performance without some consideration to her. This doctrine of the offence to the moral sense is thoroughly exploded in Schlosser’s Appeal, 8 P. F. Smith 493.

      May 17th 1880,
    The auditor holds that Mrs. Brown might have released or assigned, her judgment, or given the priority in favor of Mrs. Hiester in some other way, and because it was possible by the exercise of professional skill to secure from her a valid postponement of her lien, that, therefore, she has lost her priority; in other words, that with a married woman form is not necessary. In Schlosser’s Appeal, supra, it was because the form of the married woman’s obligation was irregular that she was enabled to escape the payment of the debt.

      W. W. Brown and B. F. Fshleman, for appellee.
    The loan of the money by Mrs. Hiester to Kirk Brown, and the judgment given by him to her as security for the loan, was the contract and agreement alone of Kirk Brown and Mrs. Hiester: Mrs. Emeline H. Brown had nothing to do with it. We contend that she had the undoubted right and power to make him a gift of the whole of the judgment-bond and the money thereby secured to her, and release and enter satisfaction for the same on the records of the court. And if she had this right, it follows as a logical conclusion that she had the right and power to make a gift to him of a lesser interest than the whole judgment owing to her by her husband. Thus having the right to do so, she made to her husband a gift of the incident of lien upon her real estate, which the law attached to her judgment to the extent of $3000, to enable him to borrow that sum of money from Mrs. Hiester. She did not release any portion of the debt owing to her by her husband. This was not an executory gift, but was executed by the delivery of the bond (upon which the endorsement of assent was written), by Mrs. Brown to her husband, Kirk Brown, and the placing of the same upon record. As an executed gift from wife to husband it required no consideration: Bond v. Bunting, 28 P. F. Smith 210. Mrs. Brown created no liability. She only acted in conjunction and with the assent of her husband in limiting the lien of her judgment against her husband’s real estate to the extent of $3000, so as to give Mrs. Hiester a lien prior to the lien of her own judgment against the same real estate. Her act in causing her endorsement on her bond to. be placed on record operated by way of estoppel.
   The judgment of the Supreme Court was entered

Per Curiam. —

Prior to the Act of 11th April 1848, a married woman could dispose of her personal estate to her husband by gift or otherwise, and with his consent to a stranger. That act took from her no rights in regard thereto which she had previously possessed. Its main purpose was to protect her property, both real and personal, from levy and execution for the debts of her husband. It prescribed a mode by which she might convey her real estate, but did not restrain her freedom in disposing of her.personal property. While she may not be liable on a contract to sell and deliver her personal property at some future time, yet she cannot repudiate a gift nor a contract fairly made under which she has delivered the possession of the property: Haffey v. Carey, 23 P. F. Smith 431: Bond v. Bunting, 28 Id. 215; Fryer v. Rishell, 3 Norris 521: Dando's Appeal, ante, page 76.

The auditor has found that her consent was voluntarily given, and executed and attested by her husband, and without this the. appellee would not have loaned the money to her husband. It was not an exécutory contract. It was executed and delivered with the bond. Nothing remained to be done by the appellant. It operated asan immediate and unconditional release of her prior, right of lien to the extent of $3000 in favor of the appellee, and induced the latter to part with that sum. Having thus executed and delivered the release upon sufficient consideration, she cannot revoke it to the prejudice of the appellee.

Decree affirmed, and appeal dismissed at the costs of the appellant.


author: Mr. Justice Sterrett

text:
    Jack’s Appeal.
    The distributive shares of the four minor children of a decedent were paid to their guardian D., who loaned three of these shares to F. on judgment bonds, payable respectively as each minor became of age, with interest annually. The account of D. was settled and confirmed in March 1872, and on his own petition he was discharged on “ paying to his successor all moneys in his hands, with accrued interest thereon, belonging to the estate of said minors,” and on the same day G., who was appointed his successor as guardian, tools from D., as cash, an assignment of the three judgments against F. Two of the judgments were paid as they matured in 1873 and 1876 respectively. In 1877, F. made an assignment for the benefit of creditors, and her real estate proving to be insufficient to pay prior liens the third judgment was lost. The auditor found that the guardian had acted in good faith, under the advice of counsel, and was not- guilty of negligence in the management of the trust; that at the time he accepted the assignment of the judgments the security was such as careful and prudent men would have regarded as good, and that the loss was caused by the extraordinary depreciation of real estate in 1873. Held, that the guardian was not guilty of such negligence as should oast upon him the burden of the loss.
    May 7th 1880.
    Before Mercur,. Gordon, Paxson, Trunkey and Sterrett, JJ. Si-iarswood, C. J., and Green, J., absent.
    Appeal from the Orphans’ Court of Lancaster county: Of May Term 1880, No. 156.
    Appeal of Mary E. Jack from the decree of the court dismissing her exceptions to and confirming the report of the auditor appointed to pass upon the exceptions to the account of William N. Galbraith, her guardian.

      The facts, as found by the auditor, H. C. Brubaker, Esq., were these: William S. Davis was appointed guardian by the court on June 15th 1863 of the estates of William Jack, Matthew Jack, John C. Jack and Mary E. Jack (the exceptant), minor children of John Jack, deceased. In pursuance of an order of the court for the payment of the debts of t'he decedent, the farm belonging to the estate of the said decedent was sold to Mrs. Mary R. Ferguson by the administratrix at and for the sum of $80 per acre, consisting of one hundred and four acres and five perches, making an aggregate sum of $8332.50. This sale was confirmed nisi January 17th 1871, and no exceptions having been filed was absolutely confirmed. The administratrix filed her final account 'April 8th 1871, showing a balance in favor of the estate of $4811.64. This account was confirmed by the court. The balance exhibited in the account, as well as the whole fund, was comprised of the proceeds of said real estate, one-third of which was set apart according to law and fixed as a charge upon the said real estate for the use of the widow during her lifetime, leaving a net balance for distribution of $3207.76, which was distributed to the minor children and wards of said guardian, each ward receiving $801.94. This money, with the exception of the share of William Jack, the oldest of the wards, was invested by the guardian in the real estate of Mrs. Mary R. Ferguson, the purchaser of said decedent’s real estate, the said guardian having loaned her the money and taken therefor three separate bonds, with warrants of attorney to confess judgments from her, which were entered in the Court of Common Pleas of this county on October 12th 1871. William Jack, one of the wards,, became of age shortly after the money was received by the guardian from the administratrix of said decedent, and his share was paid to him then.
    Three judgments, aggregating $3750, were entered against and became liens upon the said real estate of Mary R. Ferguson prior to the judgments entered by the guardian.
    William S. Davis, as the guardian of the four wards, filed his account on April 5th 1871, which exhibited a balance in his hands of $3183.16. On March 18th 1872, the account having been confirmed absolutely nearly a year before, said guardian presented a petition to the Orphans’ Court, in which he stated that he had filed his account and prayed that he be discharged from the management of said trust. Upon this petition he was discharged on condition that he pay over to his successor all moneys in his hands, with accrued interest thereon, belonging to the estate of said minors. On the same day, William N. Galbraith was appointed his successor. Galbraith then accepted from his predecessor, in lieu of actual moneys exhibited as the balance due the wards respectively, the three bonds and judgments above referred to for his three wards, Matthew, John and Mary E., each for the sum of $801.94. Galbraith, as guardian, subsequently collected the several amounts of the judgments in favor of his wards, Matthew and John Jack, and paid the same over to them on their attaining the age of twenty-one years respectively. He also collected seven years’ interest on the judgment in favor of Mary E. Jack, the exceptant.
    Mrs. Mary R.. Ferguson, to whom the moneys of the wards were loaned, made and delivered a deed of voluntary assignment for the benefit of her creditors to William F. Beyer, Esq., the counsel for exceptant, of all her real estate, in which was included the Jack farm of one hundred and four acres, and another farm of some fifty-six acres, with improvements. The farm of fifty-six acres was owned by Mrs. Ferguson in 1871, when she purchased the other farm from the estate of John Jack, deceased. The farm of one hundred and four acres was sold in 1879 by the assignee for $1794.56, subject to the dower, and the fifty-six acre farm in 1879 by the same person for $1512. These amounts comprised the whole fund in the hands of said assignee for distribution, there being .no personal fund. The judgment in favor of the ward] Mary E. Jack, being a subsequent lien, was therefore not reached.
    Galbraith, as guardian of Mary E. Jack, the exceptant, filed his account on February 7th 1879, exhibiting a balance in his favor of $47.45. In this account he took credit, inter alia, for the balance due on the judgment in favor of the ward, viz., $657.94 as not collectable by reason of the insolvency of the defendant and the loss of the security taken by his predecessor. This account was presented for confirmation nisi March 17th 1879, to which the exception in question was filed on the same day.
    . The auditor’s conclusions will be found in the opinion of this court.
    The exceptions filed were dismissed by the court, Patterson, A. L. J., and the report confirmed. From this decree this appeal was taken.

      W. F. Beyer, for appellant.'
    The first guardian made the investment and transferred the securities to his successor, who was surcharged their full amount with interest up to date of decree. A guardian “ is bound to exercise the same care and management that a prudent man would exercise in his own affairs,” otherwise he is chargeable with simple or compound interest: Hughes’s Minors’ Appeal, 3 P. F. Smith 500; Harland’s Accts., 5 Rawle 333. Loan on personal security is utterly inexcusable; Wills’s Appeal, 10 Harris 325; Daniel Wilson’s Estate, 34 Leg. Int. 27; Perry on Trusts, sect. 453. A guardian who accepts depreciated securities in payment of his ward’s shares is chargeable with their full value; McCahan’s Appeal, 7 Barr 56. He is bound to examine the accounts of his predecessor; Shirk’s Estate, 1 Lan. Bar, Dec. 18th 1869. A guardian filed his account, taking credit for investment lost, and was surcharged with interest up to date of decree in McCahan’s Appeal, supra; Worrell’s Appeal, 11 Harris 50.
    May 24th 1880.

      J. W. K. Swift and Geo. M. Kline, for appellee. —
    The duty of a guardian is for investment, not for collection and distribution. The first guardian took his judgments, payable as each ward arrived at age. He made them liens on real estate which, at the time, had a value of over $6000 beyond their existing encumbrances. He was no stranger to this property. All the parties lived in the same neighborhood, farmers, and were competent to exercise a sound and reasonable discretion. When Mr. Davis was discharged and Mr. Galbraith, in 1872, -was appointed in his stead, nothing had occurred to make the judgments of- doubtful security. On the contrary, .subsequently the first and second maturing judgments of his wards were paid. Mr. Galbraith acted with common skill, prudence and caution, and has not been guilty of wilful or supine negligence, or culpable indifference to the interests of his ward. To surcharge him with a loss of pai’t of the security unrecovered, would hold him to a measure of responsibility that would deter most persons from assuming the duties of such a trust.
   Mr. Justice Sterrett

delivered the opinion of the court,

The mixed question of law and fact presented to the learned ■auditor and court below was whether the appellee was justly chargeable with such negligence i'n the management of the trust funds committed to his care as should cast upon him the burden ■of the loss that was sustained.

The investment which proved to be insecure, and from which the loss resulted, was made by Mr. Davis, the first guardian of tlie four minor children of John Jack, whose administratrix settled her ■account in April 1871. The distributive shares of the minors, amounting to $801.94 each, were paid to the guardian, who loaned three of the shares to Mrs. Ferguson on judgment bonds,, payable respectively as each minor came of age, with interest annually. About the same time he paid the remaining share to the eldest son who had then attained his majority. The account of Mr. Davis was settled and confirmed in March 1872, and on his own petition he was discharged on paying “to his successor all money in his hands, with accrued interest thereon, belonging to the estate of ■said minors;” and on the same day the appellee who was appointed his successor in the guardianship took from him, as cash, an assignment of the three judgments against Mrs. Ferguson. Two of the judgments which matured respectively in 1873 and 1876, with interest thereon as it accrued, were promptly paid and properly applied. The remaining judgment, representing the share of Miss Mary E. Jack, the appellant, matured April 1st 1877, to which date the interest was paid, and subsequently $1.44 was paid on account of the principal. Mrs. Ferguson then became embarrassed, and made an assignment for the benefit of creditors, but the fund realized from the sale of her real estate proved to be insufficient to pay prior liens; and the residue of the judgment held by appellee was thus lost.

The auditor found that the appellee, in the performance of his duty as guardian, acted in good faith, under the advice of counsel learned in the law, and was not guilty of negligence in the management of the trust; that at the time he accepted the assignment of the judgments, two of which were afterwards paid, the security was such as careful and prudent men would have regarded as good and sufficient, and that the loss which ensued was caused by the extraordinary and unexpected depreciation in real estate which followed the panic of 1873. It is not alleged by the appellant that there was any carelessness or mismanagement on the part of the guardian from which loss resulted, except in the single particular of accepting the judgment as cash from his predecessor in the trust; and the ground of complaint as to that is, that the judgment was not the first lien on the real estate.

In determining whether the act complained of was such as should render him liable for an unexpected loss resulting from an extraordinary shrinkage of values, especially of real estate in that neighborhood, all the facts and circumstances should be taken into consideration which seems to have been done by the auditor in this case. The investment was made by appellee’s predecessor with-special reference to appellant, payable when she came of age, with interest annually in the meantime, so that the fund might be constantly productive; and, notwithstanding the prior liens, the margin in the spring of 1872 was so much that the security was then regarded as safe and ample. Negligence cannot fairly be inferred from the fact that it ultimately proved to be insufficient. Many investments made about the same time by the most careful and prudent have resulted disastrously on account of the general depreciation of real estate during the years succeeding the panic. lithe appellee had refused to take the judgment, and had insisted on payment in cash, in all probability considerable time would have elapsed before he could have found a safe investment for the money, and then the complaint might have been that he had refused a safe and permament investment already made. The appellee was well acquainted with the property on which the judgment was a lien, and was competent to exercise a sound and reasonable discretion in regard to the sufficiency of the security. The auditor has found that in this, as well as in other respects, he acted in good faith and with ordinary care and prudence. It is, of course, a great hardship that the appellant should lose so large a portion of her small patrimony, but it would be a still greater hardship to compel her guardian to make good the loss unless it was occasioned by his carelessness. It has been said that the harshest demand that can be made in equity is to hold a trustee answerable for what was never in his hands, or for a loss not caused by his wilful default. In Eyster's Appeal, 4 Harris 372, it is said : “ If guardians are to be held responsible for all negligence, and are not allowed the exercise of a reasonable discretion and prudential care in managing the property of their wards, it will deter prudent men from assuming the office, which, in itself, is sufficiently onerous, and already undertaken by such men with reluctance.”

While we regard the question in this case a close one and by no means free from doubt, we are of opinion that the conclusion reached by the auditor and the court below was correct, and that the decree should stand.

Decree affirmed, and appeal dismissed, at the costs of the appellant.


author: Mr. Justice Paxson

text:
    Imler versus Imler.
    1. A judgment for §2600 which was entered upon warrant of attorney contained a clause “with attorney’s fees for collection.” All the debt was promptly and voluntarily paid, except a balance of §192, about which there was a contest, and the judgment was opened and the contested question sent to a jury. The jury found for the plaintiff, and the court on a reserved point allowed §103, attorney’s commissions on §2600, in accordance with a fee bill agreed upon by the members of the bar of the county. Held, that these commissions were not excessive, as there was litigation, and the amount of time and labor expended by counsel would have been no greater had the verdict been for the whole face of the judgment.
    2. A contract of this nature is one of indemnity, and if the defendant neglects or refuses to pay, he subjects his creditor to the necessity of employing counsel and should pay therefor.
    3. Daly v. Maitland, 7 Norris 384, followed.
    May 10th 1880.
    Before Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    Errgr to the Court of Common Pleas of Bedford county: Of May Term 1880, No. 14.
    The facts were these: Susanna Imler purchased from her son, Thomas Imler, his interest in a farm, and gave him therefor her note for $2600, payable in three annual instalments, commencing April 1st 1875. The note contained a warrant of attorney to confess judgment, “with attorney’s fees fbr collection,” and was entered of record. The first two instalments were paid, and all of the third except $192.56. Thomas Imler claimed this balance and interest, amounting in the aggregate to $216.36. Susanna Imler alleged that she had paid this balance, by having paid a judgment-note of John B. Smith against Thomas Imler for $192.56, which was a lien on the land. Thomas did not deny that she had paid the Smith judgment, but alleged that she ought not to have paid it, because his name to the note on which said judgment was entered was a forgery. Execution was issued on the judgment of Thomas Imler against Susanna Imler for the balance alleged to be due, and including a commission of $103, which was the fee for collection, as calculated on $2600, according to a fee bill adopted by the members of the bar of Bedford county. Susanna applied to the court to have the judgment opened, on the ground alleged above, that she had paid the whole debt, and her petition prayed the court to strike off the $103 commission, for the reason that the money had been paid promptly, and no execution had been issued until the whole amount had been paid or tendered. The plaintiff, in his answer, averred tha-t the Smith judgment was a forgery, and should not have been paid by Susanna Imler. The court, Hall, P. J., opened the judgment, and the case was tried by a jury, on the petition and answer, under the following instructions from the court:
    “ The only question of fact in dispute is whether Thomas Imler signed the Smith note — is his signature genuine ? The burden of proving this is for the defendant, Susanna Imler. Dubois, who attests the signature as witness, has not been called. John Imler testifies that Thomas admitted to him that the note was genuine, and also, that he knows his writing, and the signature is genuine. Imler swears he never signed it. The real dispute is the sum of $192.56, with interest from 2d April 1877. If Thomas Imler signed the note of E. Y. Imler to Smith, as surety, Susanna Imler had a right to pay the $192.56, and to have credit for it on this judgment.
    “As to the commissions of 'the attorney, the defendant does not deny that the money was all collected by the attorneys, and that by the terms of the contract the sum of $103, is due, unless the court should be of opinion, as a matter of law, that the money must have been collected by execution. This point we reserve, to be determined on a proper motion.”
    Verdict for plaintiff for $319.36, “subject to opinion of court on attorney’s commission.” A motion for a new trial was refused, and the court entered judgment for the plaintiff on the point reserved, when defendant took this writ, and alleged that the court erred in the instruction to the jury that the burden of proving that Thomas Imler signed the Smith note was upon Susanna Imler, and in allowing the attorney’s commission when the debt had not been collected by execution.

      June 19th 1880.

      tT. B. Cessna, for plaintiff in error.
    The judgment of Smith, being an act of the court, is presumed to be right. In contemplation of law, a judgment upon warrant is the act of the court: Hageman v. Salisberry, 24 P. F. Smith 280. A judgment of a court of competent jurisdiction is never to be treated as a nullity: Hauer’s Appeal, 5 W. & S. 473-5; Appeal of Second National Bank of Titusville, 2 Norris 528. The fact being proved that the judgment was paid without litigation, the court, under its equitable powers, should have modified the attorney’s commissions if not relieved the 'defendant altogether therefrom. This view is sustained by the recent case of Daly v. Maitland, 7 Norris 384.

      Bussell Longeneeker, for defendant in error.
    The case was tried on the question of fact raised by the petition and answer, and that question was the validity of the Smith judgment. The jury found that the judgment was fraudulent.
    The attorney’s commissions were not unreasonable, and the jury found the amount. The court had all the facts'before them, and had the equitable power to reduce the sum if it was proper to do so. In Daly v. Maitland, 7 Norris 384, this court say they, will not review the exercise of a sound discretion upon such a question as here presented unless the commissions are plainly excessive. Considering the facts'that the defendant below made defence to the judgment against her to the extent of the amount of the Smith judgment, which was founded on a forgery, and which she improperly 'paid, that services had to be rendered by counsel in taking a deposition in Nebraska and in preparing the case and trying it, and that they had all the responsibility of receiving the money and remitting it to him, we think that it is but just that she should pay the attorney’s commissions.
   Mr. Justice Paxson

delivered the opinion of the court,

There is no merit in the first assignment of error. Even if the burden of showing that the signature to the note upon which the judgment, No. 238, April Term 1874 was entered was genuine, was not upon the defendant below, she has no reason to complain, as the record shows she voluntarily assumed such burden before the jury. Having assumed it, and obtained the conclusion to the jury, it is no just cause of complaint that the court below adopted her own view of her duty.

The 2d, 3d and 4th assignments refer to the single question of the attorney’s commissions, and may be considered together. The judgment-note in controversy was for $2600, payable' in instalments, with interest and “attorney’s fees for collection.” The plaintiff moved to Nebraska, and left the note with his attorneys at Bedford for collection. The defendant paid most of the instalments within a short time after maturity, and without legal process. The principal contention was over the Smith judgment of $192.56, which was paid by the defendant. As the judgment was a lien upon the land she bought of the plaintiff, the payment would have been well enough if the latter had no defence to it. But unfortunately for the defendant, the plaintiff alleged that the note upon which the Smith judgment was entered was a forgery, and the jury in the trial below found the fact to be so. The amount of attorney’s commissions claimed and allowed- was $103, and it was urged that this was an unreasonable fee for the collection of a note of $2600, all of which, except the small sum included in the verdict, was paid voluntarily. The further point was raised, that as to so much of the note as was not collected by execution, no commissions could be charged.

The obvious intention in this and like stipulations in instruments for the payment of money is, that the creditor shall be indemnified for his reasonable expense of counsel fees in collecting the money.- That is to say, where it becomes necessary to employ counsel to collect the money the debtor shall be subjected to the expense thereof not exceeding the agreed limit. It was never intended, nor can we permit such a clause to be used, to compel a debtor to pay attorney’s commissions where the latter does not dispute the'claim and pays at maturity. In such cases there is no necessity for the intervention of an attorney. Where, however, an attorney has been employed in good faith by reason of the neglect or the refusal of the defendant to pay, the fact that the money has been paid to the attorney, without execution, does not relieve the defendant from his- agreement to pay reasonable attorney’s commissions, for the reason that the creditor’s.liability to the attorney has attached. The contract is one of indemnity, and if-the defendant, by his neglect or refusal to pay, has subjected his creditor to the necessity of employing counsel, why should he not pay ? The attorney deducts his commissions even where no execution or other legal process is issued, and if the defendant cannot be made to pay the creditor has no indemnity, and the clause means nothing.

How much is the defendant entitled to pay as such indemnity? Such agreements were formerly uniformly drawn at the rate of five per cent. This court held that an arbitrary charge of five per cent, in all cases could not be sustained; that only a reasonable compensation Could be recovered, the amount of which in each case must rest in the sound discretion of the court. Accordingly, in Daly v. Maitland, 7 Norris 384, which was á scire facias to collect a mortgage of $14000, the commissions were reduced from five to two per cent.

We are asked to say that the amount allowed in the case in hand is excessive. The agreement was not for five per cent., but for “ attorney’s commissions for collection.” The amount allowed was $103. This is less than five per cent., and agrees with the tariff of charges fixed by the Bedford county bar. The amount -may seem large in proportion to the verdict, but this is a matter which the defendant would.have done well to consider before she entered upon the expensive, vexatious and often unprofitable business of litigation. The amount of time and labor required on the part of counsel would have been no greater had the verdict been for the whole face of the note. There was a suit and trial in the court below and a trial here. It was said in Daly v. Maitland, supra, “ In general this court will not review the exercise of a sound discretion by an inferior court upon such a question, and the presumption will always be in favor of their decision, unless it is plainly excessive, or, as appears to have been the case here, founded on the mistaken idea that they had no equitable power to interpose and moderate the agreed amount.” ‘ Applying this sound rule of our latest decision upon this subject to the case in hand, we are not prepared to say that the amount allowed is so plainly excessive as to justify us in revising the discretion of the court below.

Judgment affirmed.

Truneey and Sterrett, JJ., dissented.


text:
    Mowry’s Appeal.
    1. Where a conveyance is made with intent to defraud existing creditors, and other parties thereafter, on the faith of the representations of both grantor and grantee that said existing indebtedness was paid, and the grantor still retained his interest in the property conveyed, advanced money to said grantor, said parties may, as to said grantee, avoid the conveyance as a fraud upon them.
    2. In 1871, D. loaned money to J., the grantor of certain real estate, on the faith of the representations made to him by both J. the grantor, and M. the grantee, that the deed was intended to defraud the grantor’s existing creditors, which indebtedness was paid in 1869, and that -J. still retained his interest in the land. In 1873, the grantee assigned the land for the benefit of certain creditors. Afterwards in 1877, on the faith of similar declarar tions, S. loaned money to J. the grantor. The assignee for creditors sold the land for more than sufficient to pay all the debts for which it was assigned. The surplus was referred to an auditor for distribution, when M., the assignor, claimed it by virtue of his conveyance from J., and it was also claimed by D. and S. Held, that M. was estopped by his representations from claiming as against D. and S., and that, under the circumstances, they were entitled to be paid out of the fund.
    May 10th 1880.
    Before Mercur, Gordon, Paxson, Trunicey and Sterrett, JJ. Sharswood, C. J., and Green, J., absent.
    Appeal from the Court of Common Pleas of Bedford county: Of May Term 1880, No. 22.
    Appeal of Andrew Mowry from the decree of the court confirming the report of the auditor appointed to make distribution of the fund in the hands of the assignee of Andrew, Nathaniel, Zachariah and Isaiah Mowry, arising from the sale of the real estate of said assignors.
    The material facts, as disclosed by the evidence taken by the auditor, were as follows: Andrew Mowry and John R. Mowry, brothers, were tenants in common of certain land. John R. Mowry died on the 13th of March. 1864, intestate, and leaving a widow and four sons, Nathaniel, Zachariah, Isaiah and Josiah. The real estate of said decedent descended to these four sons in equal shares, subject to the widow’s interest.
    On the 13th of August 1864, Josiah Mowry, by deed, which was duly recorded, conveyed his individual interest in his father’s estate to his uncle, Andrew Mowry. On the 11th of January 1873, Andrew Mowry made an assignment of all his title and interest in said land, and on the 14th of the same month three of the sons of John R. Mowry made an assignment for a like purpose to the same assignee. These assignments were for the benefit of the creditors of the said John R. Mowry, deceased, in trust, to pay the debts of said decedent, and to pay back the surplus, if any, to the assignors. The assignee sold the real estate, paid all the debts, and in 1877 filed his final account, which showed a balance of $5947.36 in the accountant’s hands. This fund was referred to an auditor, Moses A. Points, Esq., to make distribution. Refore the auditor the only contest was as to the share of Josiah Mowry. It was claimed by Andrew Mowry by virtue of the conveyance to him, and by Samuel Dubbs and Mrs. Susanna Mowry, -wife of Josiah Mowry, as creditors of the latter, which debts were contracted respectively in 1871 and 1877. They alleged that although their debts were contracted after the date of the conveyance, and they had knowledge of it, they had loaned the money to Josiah on the faith of representations made to them by both Josiah and Andrew, and particularly by the latter, that the deed was made without consideration and with the purpose of defrauding creditors, to which fraud both grantor and grantee were parties; that it was made with the intent to defeat an existing indebtedness of Josiah’s, which debt was paid in 1869, and that Josiah still retained his interest in said property. After taking a mass of testimony directed to this point, the auditor found the facts as claimed by Dubbs and Mrs. Mowry, and reported, inter alia, that Andrew Mowry, by reason of his representations, was estopped from setting up in this distribution a contrary state of facts, and to permit him to do so would be inequitable to the creditors who advanced money to Josiah on the faith of these representations, as well as a fraud upon them. That so far as these creditors were concerned, the interest of said Josiah Mowry in his father’s estate was affected with a trust in favor of these creditors, and that the proceeds of the land was affected with a like trust, and they were entitled to the amount of their debts out of his share of said fund. The auditor then awarded to Dubbs and Mrs. Mowry the amount of their claims.
    Andrew Mowry excepted to this report of the auditor, but the court, Hall, P. J., overruled the exceptions and confirmed the report. From this decree this appeal'was taken.

      John Cessna, J. W. Ling enfetter and J. H. Jordan, for appellant.
    Concede that the intention was to prevent the collection of an existing indebtedness. This is the only fraud alleged or charged at the time the deed was executed. Josiah had no other debts, because by this transfer Andrew either paid or assumed all that he owed. Hence, as Josiah had no other creditors, there could be no fraudulent intent. The existing debt was paid in 1869, and with the payment of this debt the fraud as to this creditor was extinguished. There is no evidence, and it is not alleged, that Josiah again became involved in debt till 1871, when he borrowed $600 from Dubbs. It is not possible that this deed was made in 1864 to defraud a creditor whose debt was not created until 1877. “ If a conveyance is not fraudulent when made it cannot be made fraudulent by any matter ex post factoBeck v. Parker, 15 P. F. Smith 263. The deed was promptly entered of record, and this was legal notice to all parties; but it was proven as a fact, and the auditor so finds, that both Dubbs and Susanna Mowry had actual notice of the transfer before their debts were contracted. The declarations made in 1871 could not infuse fraud into a transaction that occurred in 1864. Dubbs’s debt was not in existence and was not contemplated in 1864, and Susanna Mowry’s debt was not contracted till 1877. There can be no legal fraud except as to existing creditors at the time the conveyance is made or to subsequent creditors whom it is. intended to defraud: Monroe v. Smith, 29 P. F. Smith 459; Byron’s Appeal, 7 Casey 241; Snyder v. Christ, 3 Wright 499; Beck v. Parker, supra; Greenfield’s Estate, 2 Harris 489.
    This was not the proceeding in which to determine the question of title. If the sale was made to defraud creditors, the proper mámner to test the validity of the transaction is by a judicial sale at the suit of one or more of the creditors: Stewart v. Colder, 1 Jones 90.
    “A party who sets up a title adverse to the proceedings by which money is brought into court for distribution, can not come in for a share:” Bush, Bunn & Co.’s Appeal, 15 P.F. Smith 363; Helfrick’s Appeal, 3 Harris 382.
    If Josiah’s share is in court for distribution it came here by virtue of the deed made by him to Andrew and through the deed of assignment made by Andrew. Josiah was no party to the assignment. Unless his interest passed by his deed to Andrew it still remains unsold, and would .be liable for his debts.' If title passed by Josiah’s deed then his interest must go to Andrew because there was no re-conveyance. Creditors cannot assail this deed on the ground of fraud, and at the same time participate in the distribution of a fund brought into court by reason of the deed.
    May 24th 1880.

      •I. M. Reynolds and Russell ‡ Longenecher, for appellees.
    — The evidence in this case as to the fraudulent character of the transaction between Andrew and Josiah Mowry is most conclusive. That, standing by itself, may not be of much consequence, as the deed was made in 1864 and the money was loaned by the appellees to Josiah several years thereafter, but it is of great importance taken in consideration with the fact, which is also conclusively proved, that the loans were made upon the faith which the appellees placed in the declarations of Andrew Mowry that Josiah continued to own his interest in the property, Andrew believing that that interest did not pass to him by the fraudulent conveyance.
   Mr. Justice Sterrett

delivered the opinion of the court,

In March 1864 John R. Mowry died intestate, seised of the undivided moiety of real estate which he and his brother Andrew purchased and held as tenants in common. He left surviving him a widow and four sons. In August of the same year, Josiah, one of the sons, executed aud delivered to his uncle, Andrew Mowry, a deed for all his right, title and interest in his father’s real estate. Several years thereafter Andrew Mowry and the other three sons made deeds of general assignment, conveying the property in trust for creditors, &e., to Joseph Ickes, who subsequently sold the assigned estate; and, after paying the creditors, there remained a surplus to he divided among the assignors, or such persons as might be entitled thereto. It was conceded that Andrew Mowry was entitled to one-half and each of the three nephews to one-eighth of the surplus, and it was accordingly appropriated to them respectively. The present contention arose in regard to the remaining one-eighth, which was claimed, on the one hand, by Andrew, as purchaser of the interest formerly owned by Josiah, and, on the other, by the appellees, as creditors of Josiah, who alleged that their respective debts had been contracted solely on the faith of declarations made by Andrew to the effect that notwithstanding the conveyance to him, Josiah was still the rightful owner of the interest he originally had in his 'father’s estate. The single question therefore was, whether Andrew or those creditors of Josiah were entitled to that portion of -the- surplus.

The auditor found that the conveyance from Josiah to his uncle was without' consideration and for the purpose, on the part of both vendor and vendee, of defrauding the creditors of Josiah; that Andrew subsequently declared to Samuel Dubbs and Susanna Mowry, the appellees to whom the fund was awarded, that Josiah still retained his interest in the property thus fraudulently conveyed, and that they loaned the money and became creditors of Josiah solely on the faith of the representations made by Andrew. These facts were fully established by the testimony.

The legal title to Josiah’s interest in his father’s estate appeared by the record to have been regularly conveyed to Andrew, who, by his deed of assignment, passed the same to' his assignee. Under these circumstances, in the absence of actual or constructive notice that the conveyance from Josiah to Andrew was fraudulent, the purchaser from the assignee' took a good title, unaffected by the fraud. The interest of Josiah being thus converted into money, the surplus of all the interests, after paying debts of the assignors, was prima facie payable to them according to their respective interests in the assigned estate; but the appellees, who had become creditors of Josiah on-the faith of appellant’s representations, interposed and asserted their right to that part of the fund in preference to him; and why were they not. entitled to it? It is difficult to see upon what principle of equity he could be permitted to take the fund as against those who gave credit to Josiah on the faith of the representations that the interest he had in his father’s estate still belonged to him. As between the parties to the fraudulent conveyance, neither law nor equity would lend its aid to either of them; and thus while the appellant might, as against Josiah, claim and hold the surplus, he stands in a very different relation to the appellees, who were induced solely by his representations to do that by which they will be greatly prejudiced if they are excluded from participation in the fund. In view of the facts found by the auditor, he is estopped from claiming the fund as against them. There would be no equity in permitting him to take it to their exclusion.

It is contended that inasmuch as the claims of the appellees arose after the assignment and are not debts against either of the assignors; they have no interest in the funds arising from sale of the assigned estate. This would be true if it were not for the important fact that they gave credit to their debtor solely on the faith of appellant’s representations, and he is the only one who is resisting their claim to the fund. As general creditors of the assigned estate, without more, they would have no standing, but, upon the facts found by the auditor, their right to the fund in question is superior to that of the appellant.

Decree affirmed and appeal dismissed at the costs of the appellant.


author: Per Curiam.

text:
    Himes’s Appeal.
    1. The real and personal property of a decedent who was a widow at the time of her death was appraised at less than $300. Her only surviving child claimed to have the property set apart to her use under the Act of April 14th 1851, which claim the court sustained. Held, that the court was right in ordering the property to be set oif to the minor child.
    2. King’s Appeal, 3 Norris 345, distinguished.
    May 10th 1880.
    Before Mercur, Gordon, Paxson, Tritnkey and Sterrett, JJ. Sharswood, O. J., and Green, J., absent.
    Appeal from the Orphans’ Court of Bedford county: Of May Term 1880, No. 158.
    Appeal of Catharine Himes from the decree of the court confirming the appraisement setting aside $300 worth of property of Susan Anderson, deceased, for the use of the minor child of decedent. Susan Anderson died on the 13th of November 1877, intestate, leaving to survive her one child, Francis Anderson, a minor. Her husband had deserted her, and had not been heard of for more than seven years previous to her death. At the time of her death, she owned and possessed personal property and a tract of land comprising about twenty-six acres. The whole of this property was appraised at less than $300, and set apart for the surviving child of deceased, under Act of 14th April 1851. The deceased owed a number of debts, among them a debt of $75 to the appellant, Catharine Himes, who nursed and waited on her during her last illness.
    The appraisement of the property, valuing it at less than $300, was presented to the court for approval and confirmation, when the exceptions of Catharine Himes were filed, and the question of allowing the $300 under the act was referred to an auditor, John H. Jordan, Esq.
    The auditor, inter alia, reported: “ Up until the decision in King’s Appeal, 3 Norris 345, the opinions of the courts giving constructions to the statutes were with reference to the claims of the widow and children upon the estates of deceased husbands. The decedent recognised in the acts was the husband, and in King’s Appeal, supra, the question was first presented to the Supreme Court, whether the word decedent, used in the act, did not embrace the mother, and whether, in case of her death, $300 worth of her property did not pass to her children in like manner as property is set apart in case of the death of the husband. ' The court held that ‘ the main purpose of the act is to provide for the widow. Its meaning and spirit limit its operations to the property left by the husband or father. It was not intended to apply to the property of a wife. This view is in harmony with all our decisions giving construction to the statute.’ It is, therefore, evident to the auditor that the proceedings by appraisement to. set apart the property of the deceased mother, so as to vest title to the same in her child, have been irregular, and that under the decisions above cited, the child is not entitled to have the property so appraised and set apart for her use. The appraisement made, and the proceedings had thereon, should be dismissed.”
    Exceptions were filed to this report, which the court, Hall, P. J., sustained, in an opinion, inter alia, saying: “If the husband dies leaving no widow, but minor children, they are the family within the meaning of the act, and entitled to the benefit of the act. Why should not the children of a widow be entitled to the same privilege in her estate ? They need the benefits of the act as much as any others. They are left without father or mother, and have no one legally responsible for their maintenance. They come within the spirit of the act, and there are no words excluding them. King’s Appeal, 3 Norris 345, is not this case. That was the estate of a wife leaving a husband. In the latter part of Judge Mércur’s opinion, he says the act is limited to the estate -of a husband oT father, and does not apply to the estate of a wife. The former part of the expression may be considered as an obiter dictum, for that was not the question before the court. The latter part was the direct question involved in the case. The statute does not apply to the estate of a wife. But it does not follow that it may not apply to the estate of a widow, leaving a minor child, or minor children wholly dependant upon her. The mischief intended to be provided against by the statute, stripping a dependant family of all means of support, and the plain and manifest spirit of the act seem to require that its beneficent provisions be extended to the minor children of a widow. Holding this to be the true construction of the statute, the appraisement is approved.”
    Catharine Himes took this appeal, and alleged that the court erred in setting apart the property to the minor child; that it being the separate property of the mother, the minor is not entitled to it under the act, in preference to the creditors of deceased.

      Alexander King, for appellant.
    It has been ruled in Nevins’s Appeal, 11 Wright 230, that where there is a widow and children, the $300 goes to the widow absolutely, and that it is given to the children only in cases where there is no widow; that the main object of the act was to provide for the widow. Whether the children are entitled to $300 out of the separate property of the mother was first presented to this court in 1877 in King’s Appeal, 3 Norris 345. In that case it was held that the minor children were not entitled to the exemption out of the mother’s estate.

      Spang Cessna, for appellees.
    The decision In King’s Appeal, supra, is not in conflict with this case. The question in that ease was whether or not the child of a wife who left a husband in full life and being, was entitled to the benefit of the $300 exemption law. The question in the present case is whether the child of a widow shall be allowed such claim. The following cases fully sustain the ruling of the court below: Burrell Twp. v. Pittsburgh Guardians of the Poor, 12 P. F. Smith 472; Sipes v. Mann, 3 Wright 414; Terry’s Appeal, 5 P. F. Smith 344; Hettrick v. Hettrick, Id. 290.
    May 24th 1880,
   The judgment of the Supreme court was entered,

Per Curiam.

This contention is as to the right of the appellee to have, the property of her deceased mother, in value less than three hundred dollars, set off to her under the act of 14th April 1851. The appellee is a minor, and her mother, before and at the time of her death, was a widow. It is contended that the appellee is not entitled to it, under the authority of King’s Appeal, 3 Norris 345. In seeking to ascertain the true ruling in any case, due regard must be had to the facts on which it was decided. The contention there was between the husband of the deceased wife and her children. The children of the wife sought to claim it against the rights of her surviving husband. Here there was neither husband nor wife. It was the property of a widow, and the contention is between a creditor and her only child. No marital rights of a husband are invoked, and the child does not claim property derived from a wife, but from a widow. The facts are so essentially different that the rule declared in King’s Appeal does not apply. We adhere to the correctness of that ruling whenever applicable. To strain the principle there declared so as to control the present case, would do violence to its spirit and defeat the humane provisions of the statute. The learned judge was clearly right in distinguishing that case from the present, and committed no error in ordering the property to be set off to the minor child.

Decree affirmed, and appeal dismissed at the costs of the appellant.