author: Mr. Justice Woodward

text:
    Storey’s Appeal. Boyd’s Appeal.
    1. D. held two judgments against A., amounting to §7000. A., at the request of D., for the expressed consideration of §7000, conveyed certain land to his own children, who were grandchildren of D., and thereupon the judgments were satisfied. Held, that this provision by the grandfather for his granddaughters was, primfi facie, an advancement under the 16th section of the Act of April 8th 1833, and there having been affirmative testimony before an auditor that it was the intention of the grandfather that the land so conveyed should be considered an advancement, the auditor could not upturn the adjustment and inquire into the validity or consideration of the judgments.
    2. G. gave a note under seal to D. in 1842. In 1865, after a conversation in which both parties treated the note as if valueless by lapse of time, C. handed it to D., who destroyed it. After the death of D., C., who was his administrator, filed his account, and an effort was made by the heirs of D. to charge him with the amount of the note. Held, that it was too late.
    3. The provisions of the 16th sect, of the Act of the 8th of April 1833, relating to advancements, apply not only to children but to grandchildren who have been advanced, where the heirs are of the same degree and take ;per capita.

      4. AYhere real estate is conveyed by a father to a child the legal presumption is that it was intended to be an advancement, which is greatly strengthened when the value of the land bears any considerable proportion to the father’s whole estate, and to overcome this presumption there must be proof of distinct explanatory facts.
    5. In 1843, 0. conveyed to his niece certain land, the consideration for which was a sum duo by 0. to D., who was the niece’s grandfather. The niece was a child and orphan and became a member of O.’s family, where she was reared and educated. AYhen the conveyance was made D. told 0. “ it would help to support and educate her,” and said, “ he was to pay 0. for her raising.” 0. maintained the niece from infancy to womanhood and the estate conveyed to her remained untouched. Its value was about one-third of what she was entitled to from her grandfather’s estate. Held (reversing the court below), that this was not a gift but an advancement.
    6. AVhere a grandfather gave to his grandson to enable him to engage in a permanent business a sum of money equal to two-thirds of the grandson’s share in the grandfather’s estate, and nothing was said or done at the time the money was transferred or afterwards, to clearly indicate what was the intention of the donor, the purpose to which the money was to be devoted, and its amount, were enough to create an implication that the gift was intended as an advancement.
    November 14th 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and AYoodward, JJ. AíVilliams and Mercur, JJ., absent.
    Certiorari to the Orphans’ Court of Butler county: Of October and November Term 1875, Nos. 216 and 253.
    These were the appeals of Ada Y. Storey and Anna L. Adams, and Julia E. J. Boyd, from the decree of the Orphans’ Court, making distribution of the estate of Oliver David, deceased.
    Oliver David died intestate at Butler, Pennsylvania, on the 5th day of November 1871, at the advanced age of eighty-three years. His estate, valued at about $90,000, consisted entirely of government bonds and other interest-bearing securities, with the exception of a small farm in Ohio of inconsiderable value.

      A widow survived the intestate, and his heirs-at-law were ten grandchildren, the children of three daughters, who had all died during Mr. David’s lifetime.
    One of these deceased daughters married James Campbell, the issue of which marriage were six of the heirs; William O., T. Chalmers, J. Thompson, Howard J., Margaret A. and Clara B. Campbell.
    A second daughter married W. C. Adams, of whom were born Ada V. Adams, now Ada Y. Storey, and Anna Lanah Adams, two of the appellants. Lauretta Campbell, now Lauretta Thompson, and Julia E. J. Boyd, the other appellant, were children of a third daughter who was married first to William Campbell and subsequently to Henry Boyd.
    Letters of administration upon the estate of the intestate were granted to James Campbell, father of six of the grandchildren, whose relations with the intestate had been of an intimate and confidential character and who had transacted much of his business for him.
    On the same day letters of administration were granted, and previous to the granting of them, Mr. Campbell, with the written consent of all the heirs except Julia Boyd, purchased the interest of the widow in the estate for $28,467, with funds realized from the sale of government bonds then in his possession.
    This purchase was declaredly made for the benefit of the heirs-at-law and a profit of $683 was derived therefrom.
    In November 1872 the administrator filed Iris first and partial account, to which a large number of exceptions were taken on behalf of Ada Y. Storey, Anna L. Adams and Julia Boyd.
    Hon. James Bredin, now one of the judges of the Common Pleas of Butler county, was appointed by the court to examine the account, report upon the exceptions and make distribution.
    The auditor overruled all but one of the exceptions, and Hawkins, J., of the Orphans’ Court of Allegheny county, after argument, approved the auditor’s findings.
    From this decree two appeals were taken:—
    The Adams children, Mrs. Ada Y. Storey and Anna Lanah Adams, appealed, because the court decided that they had each been advanced $3500 on their shares by a farm conveyed to them in 1869 by their father, Major W. C. Adams, at the instance of Oliver David, for the consideration of $7000.
    Oliver David, in 1869, had on the records of Butler county a judgment in the penal sum of $12,000 against W. C. Adams, his son-in-law. Adams wanted it satisfied; Mr. David declined, saying he intended the judgment, which was a good lien on a valuable farm of Adams in Butler county, for the (Adams) girls. Mr. David, at or about the early part of 1869, so far carried out this idea of his as to prepare and execute an assignment of the judgment, reciting the amount of it at $7000, to J. D. McJunkin, Esq., in trust for the Adams children, specifying in the assignment that it was to be an advancement to the said Ada and Anna Lanah, and to be accounted for by them in the distribution of his estate. This paper was handed to Mr. David’s counsel, John M. Thompson, Esq., of Butler, and was fully proven by him, but not produced. ■
    Shortly afterwards, this paper and arrangement of Mr. David’s not being known to Major Adams, he (Adams) renewed his request to Mr. David to satisfy the judgment. Mr. David still refused, but offered to do so if Adams would deed the land to the girls. This at last Adams did, the consideration being the judgment. The consideration expressed in the deed was $7000, and in the body of the deed was stated to have been paid- by Oliver David for the use and benefit of Ada Y. Storey and Anna Lanah Adams, and the receipt at the foot of the deed was, “ received of the above-named Oliver David for the use of said Ada Y. Storey and Anna LanahAdams, the sum of $7000, consideration money,” &c.
    Julia Boyd appealed.
    First. Because the auditor refused to charge the accountant with a note under seal of about $5300, dated in 1842, in favor of Oliver David.
    In 1842 James Campbell bought a store from Mr. David and gave him a note for some $5000, which it appeared was never paid and of which no mention was made in the account of the administrator, and Julia Boyd excepted thereto and asked that he should be charged with the amount of the note.
    In reference to this note the auditor reported,
    “ This exception the auditor understands to refer to what the accountant designates as the ‘store’ note or note given by James Campbell to Oliver David for purchase-money of store bought from him. The note, the accountant believes, was under seal, given in 1842 or about that time; does not know how much he paid on it, but Mr. David stopped him, said he ‘ did not want any more on it;’ finally, some six years before his death and since his return to Butler, accountant spoke to him about it, and said ‘ you have my note, it is dead;’ he said, ‘yes, it is of no account,’ and gave the note to accountant, saying, ‘ you may do as you please with it,’ and accountant then burnt it. If the note was under seal, more than twenty years had elapsed since it was given and accountant swears it was dead. There is no evidence going to contradict these allegations, and the exception is, therefore, overruled.”
    Second. Because the auditor refused to charge as an advancement against Mrs. Lauretta Thompson the sum of $2000, the proceeds of a farm conveyed to her in 1843-1844, under the following circumstances : Mr. Campbell owed Mr. David and proposed giving him a farm in Middlesex township, Butler county, Pa., in payment; the farm was valued at $2000. Mrs. Lauretta Thompson was born in 1835. Her father, a brother of James Campbell, had died when she was an infant, and her mother, a daughter of Oliver David, died before the year 1843. Lauretta and her mother, after the death of Lauretta’s father, had resided with Oliver David. Lauretta’s mother on her death-bed requested Mr. James Campbell to take her and raise her in his family, which, it appears, he cheerfully did.
    When Mr. Campbell was paying Mr. David the $2000 he owed him, by the Middlesex property, Mr. David directed the deed to be made to Lauretta Campbell, saying, “ It would help to raise and educate her,” or words to that effect.
    The widow David testified that Mr. David had told her he had given Lauretta a farm (the Middlesex township farm); and shortly after Lauretta’s mother’s death also told her that he was to pay James Campbell for her raising.
    The auditor found that at that time Lauretta ivas of tender age, helpless and dependent; that Mr. David was in loco parentis, charged by law with her maintenance and education; that Mr. Campbell, who did support and educate her, might, had he concluded to have a guardian appointed, have disposed of the farm; and that so doing would have been but a discharge to that extent of Mr. David’s obligation to maintain and educate her; that the fact that the farm was preserved in tact for Lauretta until her marriage, “ was owing to Mr. Campbell’s generous treatment of his brother’s orphan child,” and the amount she received therefrom would seem to be rather a gift from Mr. Campbell than an advancement from Mr. David; and that the circumstances of the case were sufficient to overcome any legal presumption that Mr. David intended this as an advanced portion of his estate.
    Third. Because the auditor refused to charge J. Thompson Campbell with $4000 received by him in the year 1863, from Oliver David, to embark in business with, and which sum the auditor and court treated as a gift.
    • J. Thompson Campbell, then the second son of James Campbell, before his majority, had commenced clerking in a store, in Allegheny city. His business inclinations attracted the attention of his grandfather, Mr. David, who, as the testimony showed, took more interest in him than in any other of the Campbell children, probably, as Mr. James Campbell testified, because of Thompson Campbell following the same business Mr. David had, and being very devoted to business from his youth.
    lvfr. David desired to see young Thompson Campbell in business for himself, and Thompson’s father was apprised by Mr. David that he had some money for Thompson. Shortly afterwards an opportunity of Thompson’s going into a store in Allegheny city presented itself, and Mr. David was informed of it, and gave his father, for him, $4000, laying on him, Mr. James Campbell, the injunction “that he did not want any one to know it.”

      Thompson went into business with the money, and at the end of three years lost half his capital and his time. Mr. David, when told of his ill-success, said, “ Well, it’s gone ; it can’t be helped.”
    The auditor found there was nothing said at the time this money was given, to indicate that Mr. David intended it as an advanced portion, and that Mrs. Belle'Wells, a sister of Mr. David’s first wife, proves the-transaction to be a gift.
    Mrs. Wells testified: “ I do not know exactly how much Mr. David gave W. 0. Campbell; I know he kept no account of it, and gave it to him as a gift; he did not tell me what he gave him, but it was some $2000, or over that sum; don’t know how much over; I think he gave Chalmers $100 at one time; I think he said he gave Thompson Campbell $4000; he gave Howard none that I know of, nor any to Mrs. McJunkin, nor to Clara.”
    Fourth. Because Miss Boyd was not permitted to participate in the distribution of the $683 profit, arising from the purchase of the widow!s share in the estate, to which purchase, as before stated, Miss Boyd had refused to give her assent.
    All of the appellants alleged that: “ The court erred in not deciding that the statute of advancements does not apply in this case because the heirs are all of the same degree and grandchildren, and take per capita.”

      Mitchell Piersol, for appellant, Julia Boyd; McCandless and Greer, for appellants, Ada, V. Storey and Anna L. Adams.
    The ten grandchildren, all the children of the intestate having died in his lifetime, take the estate under the intestate law of the state per capita, each an equal share in their own right, and not per stirpes or by representation. It is contended that the statute of advancements (Act of 8th of April 1833, Pamph. L. 249) does not apply to grandchildren when the heirs are all in the same degree. The» words of the statute are, “If any child of an intestate,” &c., which mean that the act only applies the principle of advancement to children, and consequently excludes grandchildren from its operation. As well might the statute be made to apply to collateral heirs (brothers and sisters, for instance).
    In Eshelman’s Appeal, 24 P. F. Smith 42, it is clearly indicated that the principle will not be applied to grandchildren Avhere they take per capita and are heirs of the same 'degree. The principle Ayas carried to the extreme limit in that case, where a grandchild Ayas held to have been advanced because he took per stirpes in his father’s right.
    The Act of the 8th April 1833, is derived from the English statute 22 & 23 Car. 2, c. 10, relating to advancements and settlements : 24 P. F. Smith 46. The words in both statutes are, “ If any child,” &c., shall have been advanced. In England it is held that grandchildren and great-grandchildren do not take as children: Boyle v. Hamilton, 4 Vesey Jr. 437; Marsh v. Hogue, 1 Edw. 174. See also note “A,” 4 Vesey Jr. 437.
    Whether a conveyance of property is to be considered as an advanced portion or a gift, partly one and partly the other, depends on the intention of the grantor at the time the gift is made, and of this his declarations at the time are evidence: Christy’s Appeal, 1 Grant 369; Miller’s Appeal, 4 Wright 59; Dutche’s Appeal, 7 P. F. Smith 464; 6 Wharton 370.
    In making the conveyance to the Adams children, there were such declarations of intention as were sufficient to overturn the presumption that the consideration of the deed was an advancement to them. The expressions used by the intestate in relation to the farm deeded to Mrs. Lauretta Thompson do not overthrow the presumption of law that it was an advancement, this being a presumption of law: Dutche’s Appeal, 7 P. F. Smith 464. It was error to base any conclusion on the idea that Mr. David stood in loco parentis to Lauretta, and such assumed relation should not operate to relieve her from being charged with the land as an advancement. The $4000 received by Thompson Campbell should have been treated as an advancement.

      J. D. McJwnkin and W. 8. Purviance, for James Campbell, the accountant, and Mrs. Lauretta Thompson and J. Thompson Campbell, two of the heirs.
    Eshelman’s Appeal does not support the contention of appellants. That case simply decided that a grandchild, there being a child also in existence, takes his share subject not only to the advancement made to its father, but also to any advancement made by its grandparent to it after its father’s death. And this court could not go so far as this under the literal reading of the statute of 1833, and did not thus decide until it first held that the statute was not to be literally construed, but that the word “child” in the statute covered and included grandchildren, and might and should be so construed, and that the fact that heirs were of different degrees of consanguinity to the intestate would not and should not prevent the application of the equitable principle. In the present case all the heirs are in an equal degree of consanguinity to their ancestor. The strict reading .of the Act of 1833 would apply the act only to the lineal descendants of a decedent being his children; all'the heirs in the present case are therefore one degree farther off than the literal reading of the act would contemplate. Construing, as this court does, the word “ child” to include grandchild, they are brought directly within the scope and effect of the act. The gift to J. Thompson Campbell was not an advancement: Miller’s Appeal, 7 Casey 337; Christy’s Appeal, 1 Grant 369; Harris’s Appeal, 2 Id. 304; Miller’s Appeal, 4 Wright 60 ; Lentz v. Hertzog, 4 Whart. 523 ; Lawson’s Appeal, 11 Harris 87.

      Oliver David made the deed to' Lauretta Thompson thinking he stood in loco parentis, and his expressions, Avhen he made the deed and afterwards, negative the idea of an advancement.
   Mr. Justice Woodward

delivered the opinion of the court in both appeals, January 2d 1877.

Storey’s Appeal.

On the 4th of March 1869, Oliver David held íavo judgments against W. 0. Adams, the father of the appellants, amounting to about $7000. On that day a deed for 159 acres and 115 perches of land Avas executed by Mr. Adams to the appellants, who were grandchildren of Mr. David, and thereupon the judgments were satisfied. A provision for his granddaughters Avas thus made by the grandfather by the conveyance of real estate to them for which he paid. This Avas, primd facie, an advancement under the 16th section of the Act of the 8th of April 1833. It Avas so treated by the auditor and the court beloAV upon what is believed to have been entirely adequate evidence. In support of the presumption, there was affirmative testimony of the intention of the grandfather in the statement of John M. Thompson, that some months before the transaction was concluded, Mr. David had an assignment of the judgments prepared, with the view of transferring them to J. D. McJunkin in trust for the appellants, which was recited “to be an advancement to said Ada and Anna Lanah, and to be accounted for by them in the distribution of his estate.” The land was conveyed for the expressed consideration of $7000, and the judgments were satisfied. The principle is not conceivable upon which the auditor would have been justified in upturning the adjustment and entering upon an inquiry into the validity and consideration of the judgments.

The third and fourth errors relate to details in the proceedings before the auditor, and have not been pressed in the argument.

The question raised in the fifth assignment regarding the application of the 16th section of the Act of 1833, has been fully discussed in Julia E. J. Boyd’s Appeal this day decided.

Decree affirmed, and appeal dismissed at the costs of -the appellants.

Boyd’s Appeal.

James Campbell, administrator of Oliver David, deceased, whose account has been brought up from the Orphans’ Court, was shown by the evidence before the auditor to have given a sealed note for $5300 to Mr. David in the year 1842. About the year 1865, Mr. Campbell called Mr. David’s attention to it. He said: “ You have my note, it is dead.” Mr. David replied, “ it is of no account,” and adding, “ you may do what you please with it,” gave it to Mr, Campbell who then destroyed it. This was the only evidence on the subject. The auditor and the court below refused to charge the accountant with the amount of the note, and for this the first error of the appellant has been assigned. The conversation resulting in the destruction of the instrument was about twenty-three years after its execution. Both parties treated it as having become valueless by lapse of time. The creditor had the right to give it up, and it is too late now for his heirs to assert an obligation he saw fit to cancel.

In restating the account of the administrator, the auditor credited him with the amount of a note of John M. Thompson for $1998.75, with which he had charged himself by mistake, it being unpaid and subject to set-off. To this decision an exception was taken, which the Orphans’ Court dismissed. This is the ground 'of the second error. In passing upon this and some other items, the auditor added this note: “ These credits not being absolute credits, but to be charged or accounted for in final account.” An inquiry into the merits of the assignment would now be premature. The claim can await future investigation.

The third error has been assigned to the decree of the court confirming the auditor’s decision in refusing to charge as an advancement to Mrs. Lauretta Thompson the sum of $2500, the proceeds of the Middlesex farm conveyed to her by James Campbell, for which Mr. David paid. On the 5th of November 1871, Oliver David died intestate without surviving children, but leaving ten grandchildren. Six of these grandchildren were the children of a deceased daughter who intermarried with James Campbell, the accountant. Their names were William O., T. Chalmers, J. Thompson, Howard J., Margaret A., now Margaret A. Junkin, and Clara Bell Campbell. Two of the grandchildren, Ada V. Adams, now Ada V. Storey, and Anna Lanah Adams, were the children of another deceased daughter, who intermarried with W. C. Adams. And the two remaining grandchildren, Lauretta Campbell, now Lauretta Thompson, and Julia E. J. Boyd, the appellant, were the children of a third deceased daughter, who intermarried first with William Campbell and afterwards with Henry Boyd. The auditor ascertained the amount of the estate to be $65,300, and the share of each of the ten grandchildren to be $6530. The amount for distribution, however, included $7000 charged for advancements to Mrs. Storey and Anna Lanah Adams.

At the outset, a question has been raised involving the construction of the 16th section of the Act of 8th of April 1833. The provisions of that section in relation to advancements are limited to the case of “ any child of the intestate.” The facts in Eshelman’s Appeal, 24 P, E. Smith 42, were not identical with those developed here, for the decedent there had left surviving children. But advancements had been made by the decedent to a grandson after his father’s death, and it was held that his share in the distribution of his grandfather’s estate was subject to charge for those advancements. Nothing need be added to the authorities collected in that case, and nothing to the reasoning of Judge Mercur, to prove that iii construing a statute the real intention will prevail over the literal sense of the terms; that if the expression of a statute be special but the reason general, the expression will be deemed general; and that the provisions of the 16th section of the Act of 1838 apply not only to children but to grandchildren who have been advanced. It may be observed, however, that the right of grandchildren to inherit as next of kin where no children survive the decedent is derived from the same statute that creates the charge for advancements against children. They take per capita under the terms of the second clause of the second section of the Act of 1833. They are placed, as principal heirs, in the precise position of children, and bearing the same relation to the decedent, they are subject to the same duties and liabilities. There are stronger reasons why a grandchild should be chargeable for advancements where he inherits as next of kin than where, as in Eshelman’s Appeal, he takes through a deceased parent by representation.

In 1843 or 1844, James Campbell made a deed for land in Middlesex township to Lauretta Campbell, now Mrs. Thompson, for a recited consideration of $2500. There was proof, however, and the auditor has found, that the true consideration was $2000, and consisted in the discharge by Mr. David of a debt due him from James Campbell, the grantor. Mrs. Thompson was then a child, and her parents had recently died. She became a member of the family of her uncle, James Campbell, who reared and educated her. At the time when the arrangement for the conveyance was made, Mr. David told Mr. Campbell to make the deed to Lauretta, that “it would help to support and educate her.” He told Mrs. David that he had given Lauretta a farm,' and shortly after the death of Mrs. Thompson’s mother, he said he “was to pay James Campbell for her raising.” This is all the evidence the record contains on the subject of the gift. Where real estate is conveyed by a father to a child, the legal presumption is that it is intended to be an advancement. To overbear this presumption there must be proof of distinct explanatory facts. Thus it was ruled in Dutche’s Appeal, 7 P. F. Smith 461, that “ a conveyance of land by a lather to a child directly, or by payment of the purchase-money, and having the deed made to the child, is primá facie an advancement ; and this presumption is greatly strengthened when the value of the land bears any considerable proportion to the father’s whole estate.” There the value of the estate was about $48,000. The decedent had conveyed real estate in his lifetime to three of his children. The value of that conveyed to George E. Dutche was $7805; of that conveyed to Sarah B. Lewis $4780; and of that conveyed to Rosanna R. Wendell $550. There were four children, and the distributive share of each was about $12,000. The conveyances were held to be advancements, notwithstanding evidence by one witness that the intestate had said that he intended to give a house to each of his daughters ; by another witness, who drew the deeds, that according to the best of his recollection it was meant as a gift; and by two witnesses who testified to the intestate’s declarations in his last illness that he wished his property sold, and the money equally distributed among his four children. It was held that there was nothing in the case to rebut the presumption that the deeds were advancements. It has been urged that Mr. David stood by legal relation in loco parentis to Mrs. Thompson, and that the gift was necessary for her support and education. But he never accepted the imputed relation, and the gift was never used to carry the assumed purpose into effect. She was in fact maintained from infancy to womanhood by Mr. Campbell, and the estate conveyed to her remained untouched. Its value was $2000, nearly one-third of the distributive share to which it was eventually proved she was entitled. The proportion was significant enough to intensify the presumption that springs from a gift of land. The evidence was too vague to overthrow the presumption, and the Orphans’ Court should have decreed that the conveyance was an advancement.

In the hearing before the auditor, it was shown that J. Thompson Campbell, one of the distributees, had received the sum of $4000 from his grandfather in 1865 or 1866. Alleging this to have been an advancement, the appellant asked that it should be charged against his distributive share. The auditor decided that the donor intended it to be a' gift. So much of the decree below as sustained the decision of the auditor is the subject of the fourth error. When the money was received, J. Thompson Campbell employed it in establishing a mercantile business in Allegheny city. The only evidence of what occurred at or about the time when the money was delivered, was the statement of James Campbell, that Mr. David said he had some money not invested that he intended for, or intended to give Thompson. Mrs. Wells testified that Mr. David told her at one time that he had given Thompson Campbell $4000. “ All questions of advancement,” it was said by Sergeant, J., in Daniel King’s Estate, 6 Whart. 370, “must depend on the intention of the parent in making the gift. If there be no evidence at all on the subject, then whether it was an advancement or a present may be judged of by its amount and character.” Here, the money was given by the grandfather to the grandson to enable him to enter on what was designed to be the permanent business of his life. It was nearly equal in amount to two-thirds of his share in the distribution. There was no evidence of what occurred when the money was actually transferred. Indeed, it may be said that there was no evidence at all to indicate the donor’s intention. He would have used the same words in his conversation with Mrs. Wells, whether he designed the gift to be an advancement or a present. The purpose to which the money was to be devoted, and its amount, are enough to create the implication of an intention to treat the gift as an advancement. In Lentz v. Hertzog, 4 Whart. 520, Judge Rogers said: “ The maintaining and education of a child, or the gift of money, without a view to a portion or a settlement in life, is not deemed an advancement. It can make no difference whether the child to whom the portion is given, is at the time married or settled in life, or is about to enter into that state. If it is intended as a provision or portion of his father’s estate in anticipation, he must account for its value before he can entitle himself to a distributive share of the estate which remained of the father at his death.” Lawson’s Appeal, 11 Harris 85, relied on at the argument here, was a very different case from this. Various witnesses testified there to repeated declarations of the father that he had “presented the property to his sons.” And it was said in the opinion of this court, that “ he had made valuable presents to his married daughters, and it is reasonable to infer, that what he gave to start his sons were intended in the same manner to be gifts.” Some strength is added to the view insisted on by the appellant by the fact that a gift of $2550 which Mr. David made to William 0. Campbell, was accompanied by the statement that it was “ a donation, and not to be counted up in the settlement of the estate.” This was some evidence that he had a future adjustment of equities amongst his grandchildren in contemplation. The gift to J. Thompson Campbell should have been treated as an advancement, and the fourth assignment of error is sustained.

There is no merit in the fifth assignment. The appellant refused her assent to the purchase of the widow’s interest. The purchase was made by the accountant with the funds of the other distributees, and at their risk. The appellant will receive her full share in the distribution of the decedent’s estate. The profit of $683 is justly divisible amongst the parties by the investment of whose moneys it was earned.

The decree of the Orphans’ Court is reversed; and it is ordered and adjudged that the record be remitted for re-distribution, wherein Mrs. Lauretta Thompson shall be charged with $2000, and J. Thompson Campbell shall be charged with $4000 as advancements to them, respectively; and that the costs of this appeal be paid out of the fund for distribution.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Wisecarver, Assignee of Hook, versus Kincaid et al., Executors of Rinehart.
    1. In order to deprive a plaintiff of the benefit of the Statute of Limitations in a case of set-off, the defendant must give notice of his intention to set off his claim before the six years have terminated; otherwise the statute runs till the time the set-óff is given in evidence.
    2'. The plea of payment is not of itself such notice of a set-off as will stop the running of the statute, but the defendant must either plead the setioff or give notice of it as special matter.
    3. Where, in assumpsit, the defendant pleaded payment, and some months later (on October 6th 1875) added a plea of set-off: Held, that the plea of payment did .not stop the running of the Statute of Limitations, but that the statute was a bar to all items of the account offered by the defendant of an earlier date tiran October 6th 1869.
    November 15th 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Merche, JJ., absent.
    Error to the Court of Common Pleas of Greene county: Of October and November Term 1876, No. 183.
    Assumpsit by Kincaid and another, executors of Rinehart, against 'Hook. On May 11th 1875 the defendant pleaded, among other things, payment. Afterwards, on October 6th, he added a plea of set-off. At the trial he offered in evidence under this plea an account of items running from 1860 to 1871. The court below (A. E. Will-son, P. J.) refused to admit items of an earlier date than October 6th 1869, and so charged the jury. After a verdict for the plaintiff, in which a set-off was allowed the defendant for items later than October 6th 1869, and judgment thereon, Wisecarver, who had become the assignee of Hook, took this writ of error, assigning for error the charge of the court.

      J. C. Lazear and A. A. Purman, for the plaintiff in error.—
    The defendant below could have given his account in evidence by way of a set-off under the plea of payment, under the Defalcation Act of 1705, and that plea stopped the running of the statute. The plea of set-off was unnecessary: Balsbagh v. Frazer, 7 Harr. 551; Calvin v. McClure, 17 S. & R. 385; Coulter v. Repplier, 3 Harr. 212.
    In Gilmore v. Reed, 26 P. F. Smith 462, there had been no plea of payment, as here.

      Black, Wyly & Buchanan, for the defendants in error.
   The judgment of this court was entered November 24th 1876,

Per Curiam.

The principles stated in the case of Gilmore v. Reed, 26 P. F. Smith 462, rule this case. By the statute a set-off may be given in evidence under the plea of payment merely. But it is not a logical conclusion thence that the Statute of Limitations, as affecting the set-off, may be avoided at any period of time after the bringing of the action, at the election of the defendant. In order to deprive the plaintiff of the benefit of the statute, he, defendant, must give notice of his intention to use the set-off, before the six years have terminated, otherwise they run on until the time the set-off is given in evidence. He must therefore either plead the set-off or give notice of it as special matter in due season.

Judgment affirmed.


author: Mr. Justice Sharswood

text:
    Bogue’s Appeal. Stein’s Appeal. Newburger’s Appeal.
    B., an individual judgment creditor of M., issued a fi. fa. against him, to which, writ the sheriff returned “that he had levied on all the interest of M. in the business and property of M. & Sons, and subsequently sold said property as that of M. & Sons under executions against the firm.” The fund arising from the sale under the execution against the par-tnership was referred to an auditor for distribution, before whom B. claimed the amount of his judgment out of the proceeds, and offered evidence to show that no partnership existed, but that the property belonged to M. alone. Held (reversing the court below), that the auditor could not inquire into the existence of the partnership, and that B. was concluded by the return to his writ and estopped from making any claim to the fund.
    November 16tb 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson and Woodward, JJ. Williams and Mercur, JJ., absent.
    Appeals from the Court of Common Picas of Fayette county: Of October and November Term 1875, Nos. 294-801.
    These were appeals by Henry Bogue & Son, S. Stein k Co. and Newburger k Hochstadters, from the decree of the court distributing the proceeds of a sheriff’s sale of the- personal property of A. G Minehart & Sons, under an execution of Stein & Oo.
    Before the auditor who was appointed to distribute the fund arising from the sale, it appeared that on the 24th of March 1875, Brown, Kunkle k Co. issued a fi. fa. upon a judgment against A. G. Minehart, and upon the same day the writ was placed in the sheriff’s hands.
    On the 16th of April 1875, Stein & Co. obtained four judgments against A. G. Minehart k Sons, on which executions were issued to Nos. 144, 145, 146 and 147 of June Term 1875, and the writs placed in the sheriff’s hands on the same day.
    Upon the same day executions issued upon two other judgments which had been obtained respectively by Newburger & Hochstadters and Bogue k Son against A. G. Minehart k Sons.
    To the fi. fa. of Brown, Kunkle & Co. the sheriff made the following return:—

      “March 26th 1875, levied on all the interest of A. G. Mine-hart in the business and property of A. G. Minehart & Sons ; said partnership property, &c., consisting of ready-made clothing, &c., and subsequently sold said property as that of A. G. Minehart & Sons, as per return to fi. fas., Nos. 144 and 150 of June Term 1875.”
    To fi. fa. No. 144 of Stein & Co. the sheriff made the following return:—
    “ April 16th 1875. Levied on all the following property belonging to defendants, A. G. Minehart & Sons, viz.: A lot of ready-made clothing, &c., and after due and legal notice given as required by law, I sold the same on the 22d, 23d and 24th days of April 1875, for the sum of $2404.07, which money, on leave given, I paid into court for distribution, according to law.”
    To the fi. fa. of Newburger & Hochstadters and Bogue & Son the return was:—
    “ April 16th 1875. Levied on personal property of defendants, subject to levy on fi. fa. No. 144, of this term, and sold the same as per return to that writ.”
    Brown, Kunlde & Co. claimed before the auditor that although the business of retailing and selling goods in the store levied upon and sold, was done under the name of A. G. Minehart & Sons,- yet, in fact, there was no such firm as A. G. Minehart & Sons, but that the goods sold belonged to A. G. Minehart individually: and if such was the case, they were entitled to so much of the money as would satisfy their claim. A. G. Minehart, Samuel H. Minehart and A. G. Minehart, Jr., were called as witnesses to prove that, in fact, the store belonged to their father, A. G. Minehart, and that although the three were embraced in the name, yet the one alone had any interest.
    The auditor reported:—
    “ This allegation of Brown, Kunlde & Co. ivas established, as we think, by the evidence offered, and we find that although the business was done under the name of A. G. Minehart & Sons, yet that the ownership belonged to A. G. Minehart alone; that the goods sold were individual property and must go to pay his debts, We also decide that we have the right to determine the ownership of these goods, regardless of any return of the sheriff: Appeal of the York county Bank, 8 Casey 446 ; Vandike’s Appeal, 5 Harris 271; Cope’s Appeal, 3 Wright 284.”
    The auditor thereupon awarded to Brown, Kunlde & Co. $743,88, the full amount unpaid on their judgment together with costs.
    Bogue & Son, S. Stein & Co. and Newburger & Hochstadters all excepted to this report, because 1. The auditor erred in finding that the property was that of A. G. Minehart and not that of the firm of Minehart & Sons; 2. In admitting evidence to contradict the sheriff’s return ; 3. In awarding any part of the fund to Brown, Kunlde & Co., before the partnership executions had been satisfied.

      The court below dismissed the exceptions and confirmed the report, and from this decree these appeals were taken.

      D. Kaine, for appellants Bogue & Son.
    The sheriff had sold the property of the partnership and paid the money into court for distribution and it could not be appropriated to any other than the debts of the partnership. .
    The auditor is not sustained by the authorities upon which he relies. They clearly show that he could not admit evidence to contradict the sheriff’s return. If any facts are in dispute, they must be determined by a court and jury under an issue framed under the Act of Assembly: Vandike’s Appeal, 5 Harris 271; Act of the 16th of June 1836, Purd. Dig. 656, pl. 108.
    The sheriff’s return to this writ was conclusive upon Brown, Kunkle & Co., and they have no claim upon the fund: Paxson’s Appeal, 13 Wright 195.

      S. L. Mestrezat and Albert D. Boyd, for appellants Stein & Co. and Newburger & Hochstadters.
    It is a well-settled principle that in a contest between the parties to the action they cannot contradict the sheriff’s return, which can only be impeached in an action against the sheriff: Diller v. Roberts, 13 S. & R. 64; Mentz v. Hamman, 6 Whart. 153; McClelland, v. Slingluff, 7 W. & S. 135; Flick v. Troxell, Id. 67.

      N. JEwing, for appellees.
    That an auditor has power to determine the character of the fund he is called upon to distribute has been recognised and approved in Appeal of York County Bank, 8 Casey 446; Vandike’s Appeal, 5 Harris 27; Cope’s Appeal, 3 Wright 284.
   Mr. Justice Sharswood

delivered the opinion of the court, November 24th 1876.

These are appeals from the decree of the Court of Common Pleas of Fayette county, distributing the proceeds of a sheriff’s sale of personal property. They all rest upon the same ground and may be considered together.

Brown, Kunkle & Co. had a prior execution in point of time issued upon a judgment against A. Gr. Minehart, which was levied upon the interest of the defendant in the business and property of A. Gr. Minehart & Sons. The executions of the appellants were issued upon judgments against A. Gr. Minehart & Sons, and were levied on the property as of the defendants, and sold under these1 writs. The sheriff returned the sale as made under them, and paid the money into court.

The auditor in the court below, to whom the question of distribution was referred, gave the priority to the execution of Brown,, Kunkle & Co., on the ground, which he found to be the fact, that there was no such partnership as A. Gr. Minehart & Sons, and that the personal property levied upon and sold was the exclusive property of A. Gr. Minehart. "Whether he was right in this finding of fact it will be unnecessary to consider, as we are clearly of the opinion that it was not a question properly involved in the distribution. ITe was evidently misled by a cursory examination of the cases he cites, without observing -a marked distinction between them and that which was before him for determination : Appeal of the York County Bank, 8 Casey 446 ; Vandike’s Appeal, 5 Harris 271; Cope’s Appeal, 3 Wright 284. These were all contests between separate and partnership execution-creditors, in which the sheriff had levied and sold under all the writs, and so made, return. Neither party was concluded by the return made upon any execution except his own, and his own was in his favor. It followed that there were contradictory returns — as to whether the'goods from which the money had been made was separate or partnership property — and it was held in those cases that the court were bound of necessity to inquire and determine the fact, in order to enable them to distribute the fund. But the facts here were entirely different. Upon the execution of Brown, Kunkle & Co. the sheriff made return that he had “ levied on all the interest of A. Gr. Minehart in the business of A. G. Minehart & Sons, said partnership ¡property consisting of ready-made clothing, &c., and subsequently sold said property as that of A. G. Minehart & Sons, as per return to fi. fa. Nos. 144 and 150, of June 7th 1875.” The fi. fa. No. 144, to which the sheriff refers in this return, was one in favor of Stein & Co. against A. G. Minehart & Sons, and No. 150 a similar execution in favor of Henry Bogue & Son. To No. 144 the sheriff made return that he had levied on all the following described personal property belonging to the defendants A. G. Minehart & Sons, to wit: a lot of ready-made clothing, &c. “ After due and legal notice given, as required by law, I sold the same for the sum of $2404.07, which money, on leave given, I paid into court for distribution according to law.” Upon the other partnership executions he returned severally that he had “ levied on personal property of defendants, and sold the same as per return to fi. fa. No. 144.”

That Brown, Kunkle & Co. were not prevented by the return to the partnership executions from setting up their claim to the proceeds of the sale of the goods as the individual and separate property of their debtor defendant A. G. Minehart is clear, but that they were concluded and estopped by the return to their own writ is equally clear, both on principle and authority. It ivas expressly so ruled by this court in Paxson’s Appeal, 18 Wright 199, where the books and cases are cited. The return to their execution not only stated that the levy under it was only upon the interest of A. G. Minehart in the business and property of A. G. Minehart & Sons, but also that it was partnership property, and that he had sold it as such under the partnership execution. There was no sale under Brown, Kunkle & Co.’s writ. The money was made under the partnership writs, and so paid into court.

There was error therefore in trying the question of fact of the existence of the partnership, and the money ought to have been distributed to the execution-creditors of A; G. Minehart & Sons, according to their respective priorities.

Decree reversed, at the cost of the appellees, and record remitted to the court below, that distribution may be there made according to this opinion.


author: Mr. Justice Paxson

text:
    Commonwealth ex rel. The Attorney-General versus Walter.
    1. Under art. 8, sect. 9 of the Constitution, a writ of quo warranto may issue against a public officer for bribery, fraud or the wilful violation of any election law, without a preliminary conviction for the offence in the Quarter Sessions; and the question whether the offence was committed may be tried in the proceedings under the quo warranto.
    2. It is a well-settled rule of practice that when the Commonwealth, through her attorney-general, applies for a writ of quo warranto, she is entitled to it without a previous rule to show cause.
    November 16th 1876.
    Before Agnew, C. J., Sharswood, Gordon, Paxson, and Woodward, JJ. Williams-and Mercur, JJ., absent.
    Error to the Court of Common Pleas of Butler countyOf October and November Term 1876, No. 241.
    The facts of the case appear in the opinion of the court. The decree of the court below (Bredin, P. J.), to which this writ of error was taken, was as follows :—
    “ 1876, May 6th, after hearing the court is of opinion that defendant should be legally adjudged guilty of the crimes charged in the information before proceedings can be instituted to remove him from office, and, therefore, discharge the rule, but at request of attorney for Commonwealth do direct the writ to issue pro forma as of date of rule to show cause, and do enter judgment quashing the writ.”
    The error assigned was the quashing of the writ by the court below.

      The Attorney-Greneral and S. S. Piersol (TRobinson with them), for the Commonwealth.
    The ground taken by the court below leads to one of these conclusions, either that the prerogative of inquiring by what authority officers hold their office is not vested in the attorney-general, but in the Court of Quarter Sessions, backed by the optional removing power of the governor, or that two trials and two condemnations are necessary for the same offence; the one as a preliminary proceeding in the Quarter Sessions, the other by quo warranto in the Common Pleas. If such were the law the term of office would expire before the proceedings under the quo Avarranto came to an end.
    Conviction is unnecessary to give jurisdiction : Commomvealth v. Allen, 20 P. F. Smith 465. It Avas notan essential preliminary at common law.
    The use of the word “ convicted” in the same clause of the Constitution shoAvs that the word “guilty” does not mean “adjudged guilty.”
    The defendant could have all of his constitutional rights under these proceedings : D’Eu v. Murray, 18 Howard 272.
    The CommonAvealth has right to be alloAved to enforce her rights in such a case as this Avithout being driven into the criminal courts as a private prosecutor.

      John N. Purviance (Charles McCandless, J. M. Thompson and L. Z. Mitchell with him), control.

    The question of the defendant’s guilt can only be tried in the Quarter Sessions, under the rules in force for the trial of criminal cases. Otherwise we might have the anomaly of a conviction in these proceedings and an acquittal in the criminal courts.
   Mr. Justice Paxson

delivered the opinion of the court, November 24th 1876.

This • was a writ of quo Avarranto issued at the relation of the attorney-general against the defendant, requiring him to show by Avhat Avarrant he claims to have, use, exercise and enjoy the office of high sheriff of Butler county. The information charges that the said defendant Avas a candidate for said office in the year 1875 ; that he Avas returned as elected at the general election held in November of that year; that while the said defendant was a candidate for said office, he “ was Avilfully and corruptly guilty of bribery, fraud and the Avilful violation of the election Iuavs of this Commonwealth.” The information then proceeds to charge specific acts of violation of the election laws, and the further offence of perjury in taking the oath of office. An answer was filed by the defendant, in Avhich the charges set forth in the information are specifically denied. All this took place upon a rule to shoAY cause Avhy the writ of quo Avarranto should not go out. The learned judge of the court beloAV Avas of opinion that the case Avas not one in which the Avrit should issue, and discharged the rule, yet on the request of the counsel for the Commonwealth directed the Avrit to be issued pro forma, and immediately quashed it.

It is proper to remark as a matter of practice, that when the Commonwealth through her attorney-general applies for a writ of quo warranto, she is entitled to it without a previous rule to show cause. It is not to be presumed that the law officer of the Commonwealth would apply for this high prerogative writ for personal or private ends. He is supposed to be impartial, and to seek only the vindication of the rights of the state. It is not so in the case of a private relator, who is usually put to his rule to show cause. It might not be so where the attorney-general merely allows private counsel to use his name, as is sometimes done to procure the writ. But when the attorney-general or his recognised deputy assumes the responsibility the writ should issue in the first instance.

Under the Act of June 14th 1836, the writ of quo warranto is the appropriate remedy where any person shall usurp, intrude into or unlawfully hold or exercise any county or township office within the respective county; or where any person, duly elected to any such office, shall have done, suffered or omitted to do any act, matter or thing whereby a forfeiture of his office shall be created. It is not pretended that we have any statute which declares a forfeiture of either of the offices aforesaid by reason of any of the acts charged in the information. But the 9th section of the 8th article of the Constitution provides that “ any person who shall, while a candidate for office, be guilty of bribery, fraud or wilful violation of any election law, shall be for ever disqualified from holding any office of trust or profit in this Commonwealth; and any person convicted of wilful violation of the election laws shall, in addition to any penalties provided by law, be deprived of the right of suffrage absolutely for a term of four years.” The object of this provision in our fundamental law is manifest. The frequency and extent of election frauds were beginning to awaken serious apprehension for the future unless promptly checked. A fraud upon the ballot is a crime against the nation. Hence it was that the framers of the Constitution sought to arrest the evil by embodying in the fundamental law the provision referred to. It is our duty to give it such a construction as will carry out the intent apparent on its face, and the object which the people had in adopting it.

It will be seen that by the express and clear language of the section, any person who shall while a candidate for office, be guilty of any of the prohibited acts, is ipso facto for ever thereafter disqualified from holding any office of trust or profit in the Commonwealth. It follows that if this defendant while a candidate for the office of high sheriff of Butler county, was guilty of “ bribery, fraud, or a wilful violation of any election law,” he is for ever disqualified from holding his present office, or any other of trust or profit.

We have here an allegation on the part of the Commonwealth of the existence of certain facts which, if true, amount to a disqualification. Whether the defendant has committed the alleged acts would seem to be a proper subject of inquiry upon a quo warranto. But it was urged on behalf of the defendant, that it was not the doing of the prohihited acts which disqualified, but the being guilty of them; that such guilt could only be legally ascertained by a criminal prosecution in the Quarter Sessions where the defendant would be tried by a jury of his peers. This was substantially the ground upon which the court below quashed the writ.

We are to presume that the framers of the Constitution used the word “ guilty ” in its ordinary or popular signification. That they had in view the distinction between being guilty of an offence, and being convicted of an offence is clear, from their employing both words in the section referred to. In the concluding j>aragraph thereof they say “ any person convicted of wilful violation of the election laws shall, in addition to any penalties provided by law, be deprived of the right of suffrage absolutely, for a term of four years.” The word “ guilty ” is defined by our best lexicographers to mean having guilt; justly chargeable Avith a crime ; not innocent; criminal.” Hence Ave say that a man is guilty of an offence when he has committed such offence. We say he has been convicted of an offence Avhen he has been found guilty by the verdict of a jury. We need not elaborate so plain a proposition. But it Avas strongly urged on behalf of the defendant that great injustice Avould be done him if the question of his guilt Avas not first settled in the Quarter Sessions; that he is really charged Avith crime, and of.such a nature as to blacken his reputation. We do not see the hardship. There are but two roads. The one leads to the penitentiary in case of conAdction, the other merely to a disqualification from holding office. If we send him upon the latter path, surely he has no just cause of complaint. It is his right to have the issues of fact raised upon the quo Avarranto tried by a jury. He has therefore a trial by his peers in the latter proceeding. An adverse verdict deprives him of neither life, liberty nor property. It merely prevents his holding an office which he would have no right to hold by reason of disqualifying acts committed by himself. The effect of requiring a previous conviction in the Quarter Sessions would be to give the defendant two jury trials; for such conviction could not deprive him of his right to a jury trial in the quo warranto. So that by the time the Commonwealth had folloAved the defendant to the end of his sinuous path the contest might become of little real importance, and the victory, if obtained, a barren one. The construction claimed for this section of the Constitution, if adopted, would render the said section of little practical value.

We do not see any sufficient reason Avhy the questions of fact raised in this proceeding should not be settled as such issues are usually determined in cases of quo warranto.

The order of the court beloAv quashing the writ of quo Avarranto is reversed and set aside, and a procedendo aAA*arded.


text:
    Hopkins et al. versus West.
    1. Usurious interest included in the amount of a judgment confessed cannot be recovered back after the judgment has been paid by the defendant in full.
    2. Where W. borrowed a sum of money from H., and gave H. a judgment note for the amount of the loan and usurious interest on it, and judgment was entered on the note, which was afterwards paid by W. in full: Held (reversing the court below), that in an action by W. to recover back the usurious interest, W. could not recover. Held, also, that W. could recover usurious interest paid by him on the judgment.
    3. Per Suaeswood, J.: There is no difference in legal effect between a judgment confessed or for want of appearance or plea, and a judgment on the verdict of a jury.
    November 16th 1876.
    Before Agnew, C. J., Sharswood, Gordon, Passon and Woodward, JJ. Williams and Mercur, JJ., absent.
    Error to the Court of Common Pleas of Washington county: Of October and November Term 1876, No. 83.
    Assumpsit by Jonathan West against Hopkins and others, to recover usurious interest paid by him to the defendants. The affidavit of claim filed set forth that on April 13th 1871, West borrowed from the defendants $1500, giving them his judgment note of that date for $1644, payable in nine months; that judgment was entered on this note ; that he paid the defendants interest on the sum of $1644, from January 13th 1872 to May 13th 1875, to the amount of $657.60; that on October 6th 1875 he paid the defendants in satisfaction of the judgment, $1747.91; and that the plaintiff asked to recover $502.01, the amount of the usurious interest, with interest from October 6th 1875.
    An affidavit of defence was filed which set up that at the date of the entry of judgment, April 14th 1871, no part of the note had been paid and that the plaintiff had no cause of action.
    The court below (Acheson, P. J.) ivas of opinion that the voluntary payment of the judgment did not prevent the plaintiff from maintaining his suit and ordered judgment for the plaintiff for the full amount claimed; to which the defendants took this writ of error.

      Hall & Brady, for the plaintiffs in error.
    The payment of interest was not voluntary; it makes no difference whether the judgment was by confession or was the result of adversary proceedings: Blystone v. Blystone, 1 P. F. Smith 373.
    To permit the plaintiff below to recover interest included in the judgment would be to allow that judgment to be attacked collaterally, which is contrary to all the authorities from Stewart v. Stocker, 13 S. & R. 199, down to Hageman v. Salisberry, 24 P. F. Smith 280. West should have applied to the court below to open the judgment. See also Verner v. Carson, 16 P. F. Smith 440 ; Fed. Ins. Co. v. Robinson, 1 Norris 357.

      McCraken and McIlvaine, for defendant in error.
    The payment by West was voluntary: Freeman on Judg. 2. In Heath v. Page, 12 Wright 130, a usurious mortgage was paid in full after judgment and the usurious interest recovered back.
   Mr. Justice Sharswood

delivered the opinion of the court, November 23d 1876.

Had the judgment confessed by the jdaintiff below in-favor of the defendants been an adversary judgment upon the verdict of a jury, it cannnot be questioned but that it would have been conclusive as between the parties even though it should manifestly appear that it included usurious interest. There is no difference in legal effect between a judgment confessed, or for want of appearance or plea, and a judgment on the verdict of a jury. The court in which the judgment is rendered will indeed open one of the former kind, and let the defendant into a defence in a proper case, and upon equitable terms: Clark v. Douglass, 12 P. F. Smith 415; Blystone v. Blystone, 1 Id. 373. This principle was applied in Verner v. Carson, 16 P. F. Smith 440, in a case in which usurious interest was included, and as against a vendee of the land subj ect to the judgment. No substantial difference can be shown between this and any other illegality entering into its consideration.

The judgment in favor of Hopkins, Wright & Co. against West, would no doubt have been opened upon his application and the excess beyond legal interest would have been stricken from it. But standing as it did upon the record and paid by West in full, he cannot be permitted now to go behind it and claim that part of it was not justly due, either from usury or any other cause. But then that judgment only carried legal interest from the time it fell due. Any voluntary payments in excess of lawful interest, where the whole debt is paid, may be recovered back by suit commenced within six months from the time of such payment. That was in this case according to the affidavit of claim, October 6th 1875. Whatever the plaintiff below then paid more than the amount of the judgment and interest, deducting payments before made, he is now entitled to recover back with interest. He would have a right in strictness to have such payments credited to the principal from time to time as made. He has not given the elements for such a calculation, but has stated generally that he had paid as usurious interest from January 13th 1872 to May 13th 1875, the sum of $657.60. Allowing him this credit as of that date, his claim ought to have been liquidated as follows:

Judgment — Hopkins et al. v. West, due Jan. 13tb 1872 $1644.00

Interest to May 13th 1875 — three years four months . 328.80

$1972.80

Credit payments May 13th 1875 ..... 657.60

$1315.20

Interest from May 13th 1875 to October 6th 1875 — 146 days ......... 31.56

$1346.76

Which sum deduct from $1747.91, paid October 6th 1875, leaves ......... 401.15

Add interest from October 6th 1875 to November 23d

1876 — one year and fifty-four days . . . . 27.61

$428.76

Judgment reversed.

And now, November 23d’ 1876, judgment for the plaintiff below against the defendants below for the sum of $428.76, and it is ordered that the record be remitted to the court below, that this judgment may be carried into execution.