author: Per Curiam.

text:
    Zimmerman et al. versus Rote.
    1. A negotiable note on a printed blank was signed after there was written on the margin, that it was given for a patent and not to be paid till
    a profit specified was made. The condition was cut off and the note passed to a bonS, fide endorsee for value, without notice. The consideration failed. Held, in a suit by the holder, that this was no defence by the maker.
    2. The note was to order “ for value received without interest, waiving the right of appeal and of all valuation, appraisement, stay and exemption laws.” Held to be negotiable.
    3. The maker must guard the public against frauds and alterations by refusing to sign negotiable paper in such form as to admit of fraudulent practices with ease and without ready detection.
    4. Garrard v. Haddan, 17 P. F. Smith 82; Phelan v. Moss, 17 P. F. Smith 59 ; Zimmerman v. Anderson, 17 P. F. Smith 421, followed.
    January 25th 1871.
    Before Thompson, C. J., Read, Agnbw and Williams, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Union county: No. 121, to July Term 1870.
    The action in this case was debt, commenced November 18th, 1868, by Frederick Zimmerman and Frank L. Herdic, endorsees of E. W. Lowe, against Adam Rote.
    The action was founded on the following note, which was endorsed “ E. W. Lowe. ”

      §135.00 Township of_Ha^]sy,_Ma^eh^6_ 1868 Six months after date I promise to pay E. W. Lowe, or order One Hundred and. The anty-five..........................................Hollars for value received with interest, waiving the right of appeal, and of all valuation, appraisement, stay and exemption laws. 'Adam ’Rote

      The defendant filed an affidavit of defence, to wit: “ That the note upon which suit is brought was given to the plaintiff for the right to sell the plaintiff’s patent rotary washing-machine, in the township of Hartley, in the county of Union, but with the express agreement on the part of plaintiff that the said note should not be paid by defendant until the profits accruing to the defendant by the sale of said machine in the said township of Hartley, should amount to the sum of two hundred and fifty dollars. And that after six months, if defendant did not wish to retain the said right to sell in said township, the plaintiff agreed to receive back the said territory from said defendant, free of charge to said defendant for the same, and that said plaintiff agreed to send to said defendant one dozen of the said machines, as part of the consideration of the said note, in addition to the said right to sell in the said territory. And the defendant swears that the profits from the sale aforesaid of the said machines have not amounted to the sum of two hundred and fifty dollars, nor to any sum at all. Plaintiff never having sent the one dozen machines aforesaid, and defendant, according to the terms of the contract, requires plaintiff to take back the said territory free of charge to said defendant. More than six months having expired since the execution of the said contract.”
    The case was tried February 22d 1870, before Woods, P. J.
    The plaintiff gave the note and endorsement in evidence.
    The defendant, under objection and exception, testified: “ This note is not the same as when I signed; it was two or two and an half inches wider or larger than it is now; there was written on the note or the margin of it ‘ until the profits amounted to $250the man I gave the note to write it, called himself Lowe’s agent; I gave the note for a patent right of a washing-machine, Lowe’s patent; one dozen of the machines were to be sent to Lewisburg within ten days; he then drew up the note as it is here; I refused to sign until he put on the note that I was not to pay until the profits amounted to $250; he then put it on the left end of the note, and I signed it; the end has been taken off since I signed it; there was no signature to the part cut off; that part was written; the note was in a book of notes when I signed it. * * * He never sent me any machines.” There was evidence from a witness present at the transaction, corroborating the plaintiff’s statement.
    The plaintiff gave evidence that they took the note in the usual course of business for a valuable consideration, and before maturity.
    Besides answering points submitted by both parties, the court charged:— * * *
    “The defendant also alleges as a further defence to this suit, that the note on which it is found has been altered in a material part, in other words that it is a forgery. He alleges that the paper originally was some two and a half inches longer than it is, and that there was written on this end, that this note was only to he due and payable on certain terms. A forgery may be committed in other ways than by writing the name of another to a note. Any alteration after the note is signed, in a material part, without the consent of the drawer, is a forgery. Any addition or erasure, or any material change, will be a forgery. The first impression on our mind was, that even if this whole allegation of the defendant were true, it would not amount to a forgery. The giving of a note, as in this ease, and intrusting it in the hands of the drawee in such a way that he could alter it without it being possible to detect it, should not be available against an innocent holder without notice; but this point appears to be a difficulty ruled in Worrall v. G-heen, 3 Wright 388. In obedience to the principle there ruled, we instruct you that if the part described as written on the margin of this note was made by the parties to it, at the time it was executed, and it was to be a substantive part of the note, and wa,s intended at the time to he such part and parcel of the note ; then the cutting or tearing off this part would be such an alteration as would amount to a forgery and would destroy the note. But to have this effect you must be satisfied that when it was put there, it was to be a part of the note and not merely a memorandum of the terms on which the note was given. If you find this point in favor of the defendant he would be entitled to your verdict. If you are not so satisfied the plaintiffs would be entitled to recover the amount of the note with interest from the time it fell due.”
    The verdict was for the defendant.
    The plaintiffs took a writ of error, and with others, assigned for error the charge of the court.

      J. W. Maynard and G. F. Miller, for plaintiffs in error.
    That a note was obtained by fraud, &c., is no defence against a boná fide holder for value without notice: Chitty on Bills 70; Harrisburg Bank v. Meyer, 6 S. & R. 537; Wilkinson v. Nicklin, 2 Dallas 398; Bullock v. Wilcox, 7 Watts 328.

      J. C. Bueher and J. M. Linn, for defendant in error.
    Eorgery renders an instrument void: Miller v. Reed, 3 Casey 244; Worrall v. Gheen, 3 Wright 396. The note was not negotiable: Bircleback v. Wilkins, 10 Harris 27; Carsuth v. Middleton, 2 Phila. R. 45; Overton v. Tyler, 3 Barr 346.
   The judgment of the Supreme Court was entered May 30th 1872.

Per Curiam.

The first question upon the note in this case as to its negotiability is settled by the decision in Zimmerman and Herdic v. Anderson, heard at Philadelphia at January Term 1871, 17 P. F. Smith 421.

We there held that the waiver of appeal, valuation and appraisement, stay of execution, and exemption, contained in the note does not destroy its negotiability: 17 P. F. Smith 421.

The other question as to the alleged forgery or mutilation of the note by cutting off a separate agreement written at one end of the paper on which the note is written, is also settled by the ease of Phelan v. Moss, 17 P. F. Smith 59, in which it was held that the note in the hands of a bonfi fide holder without notice of the fraud and for a valuable consideration, is not affected by the separation of the written agreement, there being nothing on the face of the note to indicate that the writing had ever constituted a part of the note. The same principle is recognised in Garrard v. Hadden, 17 P. F. Smith 82. It is the duty of the maker of the note to guard not only himself but the public against frauds and alterations, by refusing to sign negotiable paper made in such a form as to admit of fraudulent practices upon them, with ease and without ready detection.

Judgment reversed, and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mercur, J.

license: Public Domain

text:
    Snyder’s Appeal.
    1. A testator by Ms will gave all Ms estate, “ except such reversions as I may hereafter make,” to Ms daughter Yenticia, appointed guardians for her and authorized them to spend the whole proceeds in her education. By a codicil he appointed his daughter Mary guardian of Venticia’s person, “to cake her in charge, attend to her education and see that she is well brought up.” By another codicil he ordered that Mary “ shall have her main support from the Shull farm.” Venticia by ejectment recovered the possession of the Shull farm from Mary. This was an acceptance of the devise and Venticia personally and the land became liable for the support of Mary according to the terms of the codicil. Per Junkiít, P. J.
    2. The estate which the testator owned at his death was much greater than the Shull farm, but was absorbed, except a small sum, in payment of his debts. Seld, that the amount to which Mary would otherwise have been entitled from Venticia as the owner of the Shull farm should be abated.
    January 30th 1874,
    Before Agnew, 0. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Appeal from the Orphans’ Court of Snyder county : No. 200, to January Term 1873. In the estate of John Snyder, deceased.
    The’ proceeding commenced September 25th 1871, by the petition of Mary K. Snyder for a citation to H. C. Eyer, adminisr trator d. b. n. c. t. a. of John Snyder, deceased, George W. Walls and Yenticia Irene, his wife, late Snyder.
    The petitioner set out: That her father, John Snyder, died about, August 15th 1850, having made his will dated May 9th 1846, and ' two codicils, one without date, and the other dated August 15th 1850. By his will he devised all his estate to his daughter Yenticia Irene, since intermarried with George W. Walls, who is now of age, and residing with her husband in Lewisburg, Union county. By the last codicil (of August 15th 1850), he provided as follows: “ And I do further order that Mary K. Snyder, my daughter, shall have her main support from the Shull farm.” The petition further averred that the “ Shull Farm” was part of testator’s real estate, devised to his daughter Yenticia Irene, and was situate in Union township, Snyder county, containing 217 acres of land, now in possession of a tenant of the respondents. And that both respondents and their tenant refused to allow the petitioner any support from the said farm, and had denied her right thereto. That the annual rental of said farm was from $300 to $400, all of which would be required for her support as provided in the will. And praying a citation to the defendants to show cause why petitioner should not have her main support from the Shull farm, as directed by the said will.
    The answer of George W. Walls and Yenticia Irene, his wife, admitted they were in possession (by their tenant) of the Shull farm. But they said that the petitioner had not applied for, or been refused a support from said farm; that the income thereof was barely sufficient for necessary repairs; that petitioner had possession of said farm from testator’s death till the fall of 1870, and suffered it to go to decay, by bad husbandry, and that for years to come the repairs necessary to make the place habitable and fruitful would more than exhaust the income, and that during the past year the taxes and necessary repairs to the house had cost nearly the whole income. They further said that the provision in the codicil was too vague, general and indefinite to support the claim of the petitioner, and that the court had no jurisdiction.
    The testator had been twice married; Mary K. and Elizabeth M. were daughters of the first marriage; Utica Y. (long since dead), and Venticia Irene, of the second.
    The testator by his will, after referring to some supposed domestic troubles with the mother of his first wife, provided: — -* * *
    “I do hereby bequeath unto my three daughters, namely: Elizabeth M., Mary K., and Utica Y., each of them one dollar, to be paid to them or their heirs, by my executors, within six months after my death; and to my daughter Yenticia Irene I will and bequeath all my estate, real, personal and mixed, and all claims or demands whatsoever to which I may be entitled by law, equity, bequest, reversion or otherwise, excepting such reversions as I may hereafter make. Should my daughter Yenticia live to become of age, married or single, and should' she become satisfied Utica was deserving of her assistance, she may pay her fifteen hundred dollars, in such manner and at such a time as she may see proper, but at no time shall it be considered as a bequest by me, as I now consider her unworthy of my notice or protection, but shall remain a claim on the discretion of Yenticia to pay when and in amount what her judgment may suggest; the education of her children should be a consideration of primary importance. But should Venticia die without heirs, it is my will that the estate should be valued by the three nearest president judges, and divided into three shares, so that the homestead may ■ be possessed by two of my daughters or their heirs. * * *
    “ The twelve acres of land in Neitz’s Valley, called Springfield, I • will to Amelia, daughter of Susanna Hanes,.now Mrs. Dehaven, and to her heirs also. * * *
    “Lastly, I constitute and appoint my cousin, Dr. H. A. Lechner, and my friend, Alexander Jordan, Esq., my executors; I also appoint them the guardians over the person and estate of Venticia and Amelia, hoping they will attend to the education of Venticia, and I allow them to spend the whole proceeds of the estate, excepting twenty dollars, which I wish them to apply to the education of Amelia, together with the proceeds of the one hundred and ten acres of land, until said Amelia shall become decently married.
    “My debts are not numerous; my account books have references which will, I hope, explain all difficulties in settlements; my unsettled accounts with Buckman Claflin, in Hana, Licking county, Ohio, will pay more than my debts; his agreement with me will show our relation; for the la.nd on the Sinamahony, about one thousand acres, I have no deeds. Mr. C. is honest, and will account for store debts, land, and all. * * *
    John Snyder.”
    The codicils provided:— * * *
    “ I do hereby constitute and appoint my daughter, Mary Kittera, guardian of- the person of Venticia Irene, my youngest daughter. She, the said Mary, to take her in charge, to attend to her education, and see that she is well brought up. I do also hereby appoint-my friend, J. W. Smith, as executor, in addition to those already mentioned 'in the will to which this is a codicil, and also appoint him as guardian over the estate of my daughter Venticia Irene. I do hereby revoke anything in my former will which may conflict with this codicil.”
    “ Thursday, 15th August, a. d. 1850.
    “ Being weak in body, but possessed of all my faculties, and upon the full reflection consequent on life and death, I have hereunto set my hand and seal to the foregoing, and I do further order that Mary K. Snyder, my daughter, shall have her main support from the Shull farm.”
    . The petition and answer were referred to L. N. Myers, Esq., as auditor to report the facts.
    The auditor took a large number of depositions, which he reported to the court, and which were filed; he did not' find any facts. They are, however, stated in the opinion of Junkin, P. J., of the 9th district, who presided in the Orphans’ Court when the case was heard. Amongst other things Judge Junkin says: * * *
    “ When he made this will in 1846, he was, apparently, the owner of considerable property, and was living at the time on a farm of fair value, and by odds the chief bulk of his real estate, located near the rising town of Selinsgrove; had flocks and herds, and was esteemed by others, and himself believed, a man of ample fortune for a country gentleman. * * * He points out a single item or claim of personal property due to him, which he says is undisputed and amply sufficient to pay all his just debts. Nevertheless, from the negligent manner in which he transacted his daily business, it became necessary to sell the farm he lived and died on, in order to liquidate his debts, so that of all his estate there remained but $1000 in money and the Shull farm, * * * his valuable real estate near Selinsgrove having been sold for payment of debts. The Shull farm contains 204 acres, value from $20 to $30 per acre, say worth $5000, one hundred acres thereof cleared and under cultivation, balance fairly timbered; soil naturally good, but hilly, producing with negligent cultivation from ten to fifteen bushels of wheat per acre, eighty of corn in ear, thirty of oats, and located within three miles of Selinsgrove and Susquehanna river, canal and railroad, and in Snyder county. Under ordinarily good husbandry, the net proceeds to the owner of the fee should be $200 per annum, as shown by the evidence; the improvements are a good barn and comfortable dwelling-house, but fences out of repair.
    “ From the death of John Snyder until September 1869, or perhaps until April 1870, Mary K. Snyder had, in a general sense, the control and management of this Shull farm, either as guardian of her young sister Yenticia, or as the person entitled to its proceeds, under her father’s will. But it is clear that she aided from its proceeds, or from her own means, to educate Yenticia, giving the latter also the advantage of her own intelligence and culture, and generally was diligent and faithful to her trust. In September 1869, Yenticia Irene, then and now Mrs. Walls, recovered in ejectment against Mary K. Snyder, the Shull farm, she fearing that Mary might, if suffered longer to occupy the farm, set up title by adverse possession. But this assertion of title, under her father’s will, on the part of Mrs. Walls, is an acceptance of the devise, and brings the case within the principle of the case of Hoover v. Hoover, 5 Barr 351, that both the person and estate of an accepting devisee of real estate, charged with a legacy, become liable for its payment. And in Mohler’s Appeal, 8 Barr 26, even an alienee of an accepting devisee, ivas held liable to the extent of the rents and profits by him received whilst in possession. These cases are re-affirmed in Steele’s Appeal, 11 Wright 438; McCredy’s Appeal, 11 Wright 442; Clark v. Wallace, 12 Wright 80; Field’s Appeal, 12 Casey 11; Conard’s Appeal, 9 Id. 47. And unless the present case can be distinguished from the cases just cited, there is no more to be done, than to make a decree accordingly.
    “We pass on, however, to consider the meaning of the words ‘main support,’ as used in John Snyder’s will. It means that, generally and chiefly, Mary shall receive her support from the Shull farm. It is to be her chief reliance, and no more need be said on this point. The difficulty arises from the inadequacy of this land affording her even one-half of her reasonable support, so that there is no danger that she will receive the whole, and anything short of the latter will be but main, and short of entire. The testimony shows that she ought to receive $400 per annum at least, and this would exclude everything save the actual necessities of life; luxuries and display are in any aspect of the case out of the question. If the funds were at hand she should have all that is required to maintain her in a style becoming her rank and honorable descent; but first of all come bread and shelter, then, if at all, luxurious elegance. But where is even sufficiency of bread and shelter to come from? We have no magician’s wand, with which to give the exuberance of the tropics and the beauties of the Orient to the sterile hills of the Shull farm. It is a fixed fact that under the best of culture it can only yield $200 per annum. This is the lion in our path, and must, from necessity, temper the decree.
    “Looking then into the four corners of this will, it is clear that the chief object of his bounty was this young child, Yenticia Irene, then but nine years old (at testator’s death), for he gives her nearly his entire estate, and only when his prejudices against the elder daughter were relaxing in the jaws of death, does he squeeze out of the Shull farm a support for her, then arrived at her majority. But concede each alike, the object of his bounty and the issue is still the same.
    “First, then, did he even apprehend the possibility of the farm on which he lived and died being swept away for payment of his debts, so that, besides the Shull farm, only $1000 remained? As it has turned out, Yenticia has this $1000 and the fee in the Shull farm, subject to her sister’s main support, and was at the time of tender years. If we so decree, that Yenticia must sell the Shull farm to pay for Mary’s support, we rob the younger to sustain the elder. Yenticia will then get less than nothing, and from being the devisee and legatee of her father’s estate, subject to this annuity, she will be beggared; the inheritance will turn to ashes in her hands; she who was to receive most, will obtain least, and the whole intent of the testator will be reversed. This compels us to consider what John Snyder himself, if living, or having knowledge, at the time of making his will, of the small estate he was leaving, would have done. The principle of abatement intervenes generally where the testator has mistaken his means, and does equity. The trouble in the present case, however, arises from the positive doctrine of the cases cited, and many others to the same effect not here alluded to. They seem to clinch the personal liability of the accepting devisee with much firmness, apparently leaving no room for exception. Nor do we feel at all assured of the correctness of the position we are about to assume, in distinguishing the present from the cas.es cited, but the danger of fixing an over burthen on this devisee is so imminent, that we are compelled to be astute to avoid the peril. * * * ”
    The judge, after examining and comparing numerous authorities on the point he was discussing, proceeded:—
    “ Then we find that in all the cases, except in Hoover v. Hoover, the fund being ample and there being no loss of the main or most valuable part of the devise, so that no disturbing element not foreseen by the testator is introduced (such as in this case, to wit, the total loss to the devisee of the main devise, in bulk as well as value, and that chief portion too unencumbered), then shall the devisee be held as accepting cum onere, and must pay the uttermost farthing. But when eight-tenths of the intended devise is taken to pay debts, and that remaining happens to be the part specifically charged, then the principle of abatement is invoked that equity may be done. Now, by whatever name you call this provision for Mary’s support, it is so nearly an annuity, that we will speak of it by that name. In Roper on Legacies, vol. 1, page 419, we find that ‘ there is no distinction between a' legatee and an annuitant, in regard to the general rule of abatement, for the bequest of an annuity out of, or charged upon the general personal estate is not specific,’ * * * it is, therefore, not privileged from abating with the other legacies; and the mere circumstance of the bequest being an annuity raises no inference of an intention that the testator meant it- a precedency, in payment, upon which he might claim an exemption. * * *
    “ Now the testator first gave Mary a main support, and then says it shall come from the Shull farm. Then, in case the Shull farm had been recovered from the devisee by a superior title, and there had been ample estate besides this farm, would the support of Mary have been lost ? .According to the authorities (for the rents and profits are not bequeathed for her support) she could have recovered this quasi annuity from the general assets of her father’s estate; and if she could, then this support to her is not specific; then it is liable to abate, along with the other legacies and devises, upon a general insufficiency of assets to pay the bequests, &e. If Mary could thus, in a certain contingency, call for her support out of other assets than the Shull farm, why may not Yenticia also, upon the estate intended for her being swept away to pay debts, even in relief of the Shull farm, call upon Mary to suffer a part of this géneral loss ? As already shown, the fact that she is quasi an annuitant does not forbid abatement, and in the particular case equity calls earnestly for some equalization of this unexpected loss. It was agreed on the argument that the court should ascertain the income of Mary K. Snyder as postmistress of Selinsgrove. That we ascertain té be six hundred dollars, but we do not think it affects in any way the question before us ; neither does Sheldon v. Purple, 15 Pickering’s Rep. 528. Now, then, what more can be done with the limited resources of this testator’s estate than simply to give Mary the largest share of the annual profits of the Shull farm, fixing them at $200 per annum ? And it will be remembered that to bring this sum the farm must be brought (and at Yenticia’s expense) and maintained to a much higher degree of fertility than it has hitherto, under Mary’s management, attained. To give more is impossible, and to give less is mockery.”
    The decree of the Orphans’ Court was:—
    “And now, to wit, 22d August 1872, the auditor in this case having failed to report his opinion on the facts, in aid of the court, we have, nevertheless, rather than delay the cause, looked carefully into and considered the evidence, whereupon, after due deliberation, it is hereby ordered and decreed that Yenticia Irene Walls do pay to Miss Mary K. Snyder, the petitioner, for the year commencing 1st of April 1870, and ending 1st of April 1871, the sum of $75; and for the year ending April 1st 1872, the further sum of $100; and for the year commencing April 1872, and ending April 1st 1873, the like sum of $100; and that she further pay to said Mary K. Snyder annually, on each first day of April thereafter, the sum of $133, unless before said time there is some further order made by this court: the costs of this proceeding to be paid by the said Yenticia I. Walls.”
    Mary K. Snyder appealed to the Supreme Court, and assigned for error that the Orphans’ Court erred :—
    1. In not decreeing that there should be paid to the petitioner from the Shull farm a sum sufficient for her main support.
    2. In deciding that the bequest to the petititioner of a sum sufficient for her main support was subject to abatement.
    3. In deciding that the amount to be paid to petitioner for her main support was to be measured by the annual profits of the land upon which it is charged.
    4. In not decreeing that the respondents should pay to the petititioner at least -$400 per annum, beginning from April 1st 1870.

      E. C. Mitehell and S. Linn, for appellant.
    The gift to Mary is a legacy, in the nature of an annuity charged upon land: Oraven v. Bleakney, 9 Watts 19; Hamilton v. Overseers, 2 Jones 147; Marcy’s Estate, 10 Harris 140 ; Steele’s Appeal, 11 Wright 437. When Mrs. Walls recovered the Shull farm, she became bound personally as was the land for her sister’s support, according to the terms of the will: Hoover v. Hoover, 5 Barr 351; Mohler’s Appeal, 8 Id. 26; Venticia’s devise was residuary: Preston on Legacies 178. Roper on Legacies 411; Willard’s Appeal, 18 P. F. Smith 327; Walker’s Estate, 3 Rawle 229; Gallagher’s Appeal, 12 Wright 121. The residuary legatee cannot have the estate marshalled to relieve it from the payihent of legacies: Greville v. Browne, 7 H. L. Cases 689.
    Mary’s legacy is demonstrative or specific: Armstrong’s Appeal, 13 P. F. Smith 312; 1 Roper 670. The land itself (not the rents only) was charged with the payment of Mary’s legacy, for which a sale might bé decreed under the Act of February 24th 1834, sect. 59, Pamph. L. 84: 1 Br. Purd. 450, pl. 222; Marcy’s Appeal, 10 Harris 140.

      J.M. Linn, for appellees.
    The amount of Mary’s allowance must depend upon the circumstances of the case; Craven v. Bleakney, 9 Watts 19; those of the testator and the condition in life of the legatee; Marcy’s Estate, 10 Harris 140; Earp’s Will, 1 Parsons 457; Postlethwaite’s Appeal, 18 P. F. Smith 480. The support here means over what the legatee may earn: Seldon v. Purple, 15 Pick. 528; Duncan v. Alt, 3 Penna. R. 384.
   The opinion of the court was delivered, March 2d 1874, by

Mercur, J.

It is clearly evident that, when John Snyder executed his will, he over-estimated the value of his residuary estate. He manifestly intended his daughter Yenticia Irene to be the great object of his bounty. He supposed she would take property of much greater value than all which actually remained after the payment of his debts. He thought his personal estate was more than sufficient to pay all his indebtedness. It appears, however,' the debts and the expenses of educating and maintaining the appellee also absorbed the proceeds of his most valuable farm, except the sum of one thousand dollars. This fact should hot be overlooked in determining the sum to be paid to the appellant. The evidence, however, wholly fails to show the value of all the real estate of which the testator died seised.

We think the evidence fairly justifies the conclusion of the court below, as to the sum annually required for the-“main support” of the appellant, according to the intent of the will. We also think the diminished value of the estate requires that some abatement should be made from the sum to which the appellant would otherwise be entitled. We cannot, however, concur in the extent of the abatement made, nor adopt the reasoning by which the learned judge reached that result.

The evidence shows conclusively that the appellant most faithfully and affectionately discharged her trust as guardian of the appellee. She spared no expense in giving her a thorough education at the best female seminaries of the country. She thereby necessarily reduced the residuary estate. The estate thus diminished for the benefit of the appellee, is now rather ungraciously interposed to the prejudice of the appellant. How many thousand dollars were expended in the maintenance and education of the appellee the evidence fails to disclose. Those who have thus educated a daughter can form some opinion of the sum required for that purpose.

The “Shull’’farm is all that remains of the real estate. It' contains 204 acres. About 100 acres thereof are improved ; the remaining portion is covered with valuable timber. The evidence will not justify us in putting the valuation of the whole farm at less than $6000. In the present condition of the improved land, $200 may be a fair annual rental. This, however, is likely to increase. It further appears that the appellee at one time took timber from the unimproved land worth three times that sum. This source of income appears to have been wholly overlooked or disregarded by the court below. It may be urged that the removal of the timber encroaches upon the corpus of the estate, and thereby gradually destroys it. To this we answer: good husbandry will hardlyjustify the permanent retention of more than one-half of the land in an uncultivated condition. Besides, as the timber shall be removed, the acres of cultivated land will be increased, and consequently an increased annual rental will necessarily follow. Upon the whole we have concluded to modify the decree, and increase the sum to be paid annually to the appellant.

And now, March 2d 1874, it is ordered, adjudged and decreed that the decree of the court below be and the same is hereby reversed and set aside; and it is now further ordered, adjudged and decreed that* the said Venticia Irene Walls does pay to Mary K. Snyder, the appellant, five hundred and fifty dollars, on the 1st day of April, 1874, and the further sum of two hundred dollars annually, on the 1st day of each April thereafter, until otherwise ordered; that the costs of this appeal be paid by the appellee, and the record be remitted to the court below with instructions to enforce this decree.


text:
    Detwiler versus Cox et al.

    1. A lease was for a fixed rent in money, and at the additional rate of $30 for each $500 of improvements put on the premises by the lessor. Held, that the $30 additional rent could be distrained for.
    2. Although the payment was equal to the interest of $500, yet being named as rent it was distrainable, the $30 being the measure fixed by the lease.
    February 2d 1874.
    Before Agnew, 0. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 251, to January Term 1872.
    This was a replevin issued April 24th 1871, by Jacob Detwiler against William K. Cox and George W. Dungan, for certain goods distrained for rent on premises leased by Cox to the plaintiff. On the 23d of May 1871, the defendants made cognisance and avowed, —Dungan as bailiff and Cox as landlord, — that the plaintiff held a dwelling-house as the tenant of Cox under a lease reserving a rent of $1200 per annum, payable monthly, and under this further reservation in article 8th. of the lease, viz.:—
    “ If the said William K. Cox shall, during the term hereby granted, add to the said premises permanent improvements or betterments, to the cost of five hundred dollars or more, in that case the said Jacob Detwiler shall and will pay to the said William K. Cox, his heirs or assigns, rent in addition to the rent above reserved, at the rate of thirty dollars per annum for every sum of five hundred dollars, or fractional part thereof, that shall be expended in such permanent improvements or betterments.”
    Cox had during the time expended in permanent improvements and betterments the sum of $4000, which increased the annual rent to $1440, or $120 per month. $140 of the rent remained unpaid at the close of the year on the 31st of March 1871, and the goods were-distrained on the demised premises for the rent so due and in arrear.
    The cause was tried November 17th 1871, before Lynd, J. The only question paised there was, “ whether distress will lie for the collection of the sums becoming due to the lessor, under the provisions of the 8th article of the lease.”
    The court directed the jury to find for the defendants for the amount claimed in the avowry, subject to the opinion of the court in banc on the above question which was reserved.
    The jury found “ for defendants’ arrears of rent $145.32 with interest, &c.,” and the court in banc afterwards entered judgment on the verdict, on the reserved question for the defendant.
    The plaintiff removed the record to the Supreme Court and assigned the entering of the judgment for error.

      W. L. Hirst, for plaintiff in error,
    cited Miners’ Bank v. Heilner, 11 Wright 452 ; McGee v. Fessler, 1 Barr 126 ; 2 Bl. Com. 41; Gilbert on Rent 18 ; Foquet v. Moore, 7 Exch. 870 ; Donellan v. Read, 3 B. & Ad. 899 ; Hoby v. Roebuck, 7 Taunt. 157; Parker v. Harris, 4 Modern 79.

      J. B. Cox, for defendants in error,
    cited Roulston v. Clarke, 2 H. Bl. Rep. 563; Daniel v. Grade, 6 Q. B. 145; Brewster v. Kitchell, 1 Salkeld 198 ; Bradbury v. Wright, 2 Douglas 602; Payne v. Burridge, 12 M. & W. 727; Sandwith v. Desilver, 1 Browne 221 ; Peart v. Phipps, 4 Yeates 386; Irwin v. Bank U. S., 1 Barr 349 ; Fry v. Jones, 2 Rawle 11; Rinehart v. Olwine, 5 W. & S. 157; Wells v. Hornish, 3 Penn. R. 31.
   Judgment on the writ of error was entered in the Supreme Court, February 9th 1874.

Per Curiam.

The terms of the reserved question admit the making of the improvements and betterments claimed in the defendants’ avowry, leaving the single point whether the additional rent reserved therefrom in the 8th clause of the lease, is a distrainable rent. We can see no good reason why it is not rent. It is reserved as rent, issues out of the premises, is payable in addition to the other rent, and is a fixed annual sum. It is not interest, though the rate of interest was evidently the measure of the rent in the minds of the parties, yet this measure even was not applied, but a measure fixed by the contract of lease itself, to cost $30 per annum, for every $500 worth of improvements added to the premises. Id eertum est quod eertum reddi potest. As the ease comes up no question of notice or demand arises. The simple point is, the improvements being added, their value determined, is the sum reserved a rent. Thinking it is, the judgment is affirmed.


author: Gordon, J.

text:
    Carey’s Appeal.
    1. The domicil is where a person has fixed his habitation without a| present intention to remove from it.
    2. To constitute domicil there must be both residence and an intention to make the place of residence the home of the party.
    3. Primft facie the residence is the domicil.
    4. The intention formed and announced to change a domicil, will not avail unless there be an actual change of habitation.
    5. In this case a testator made a will in Pennsylvania witnessed by two witnesses; — the evidence showing that his domicil was in Rhode Island where three witnesses are required, on appeal to the Supreme Court, probate of the Pennsylvania will by the register in Philadelphia was revoked and letters testamentary vacated.
    February 2d 1874.
    Before Ag-new, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.

      Appeal from the decree of the Register’s Court of Philadelphia: In the matter of the probate of the will of William Gibson, deceased, and granting letters testamentry thereon: No. 358, to January Term 1872.
    On the 25th of April 1868, a will of Dr. William Gibson was presented to the register of wills of' Philadelphia, admitted to probate and letters testamentary granted to John J. Reese one of the executors named in it.
    The following is the will:—
    “My last will and testament. Philadelphia, December 19th, 1867. — In the name of God, Amen. This is my last will and testament. — I bequeath to my old and faithful colored servant, Fanny Johns, formerly Fanny Robertson, five hundred dollars, free from any demand or claim of any husband she may have, and for her own special benefit. I also bequeath to my kind attendant and nurse, Jemima Cartledge, fifteen hundred dollars for her own special use, and free from the claims of any one. The balance of my estate, real, personal and mixed, I bequeath to my three daughters, Sally A. Reese, Grace Noble Carey, wives of Dr. John J. Reese, of Philadelphia, and of Henry G. Carey, of Baltimore, and to Ella Jane Gibson, of Portsmouth, Rhode Island, in three equal parts, share and share alike, and for their sole benefit, and free from the demands or claims of any husband or husbands either of them may have. I appoint as my executors and administrators John James Reese, of Philadelphia, and Henry G. Carey, of Baltimore. William Gibson, [seal.]
    Witnesses:
    J. T. Heeenol, [seal.]
    John J. Reese, Jr., [seal.] ”
    From the decree of the register, Henry G. Carey, the husband of a daughter of the deceased and executor named in another will, appealed to the Register’s Court.
    The other will was as follows:—
    “ I, William Gibson, of the city and county of Newport, in the state of Rhode Island, do make this, my last will and testament:
    “ First. It is my will that my debts and all charges be paid out of my estate.
    “ Then I give, devise and bequeath all the residue of my estate, real and personal, to my two daughters, Grace Noble Carey, wife of Henry G. Carey, of Baltimore, and Ella Jane Gibson, of Newport, aforesaid, share and share alike, to be to them and their heirs for ever.
    •“I appoint and make the said Henry G. Carey executor of this my last will and testament, and last I do hereby revoke all former and other wills by me at any time heretofore made, and I publish and declare this only to be my last will and testament.

      “ In witness whereof, I have hereunto set my hand and seal this first day of March, in the year one thousand eight hundred and sixty-five. William Gibson, [seal.]
    “ Signed by the above-named William Gibson, the testator, as and for his last will and testament, in the presence of us, present at the same time, who, at his request, in his presence and in presence of each other, have subscribed our names as witnesses thereto. J. W. Vose,
    Chas. T. Hopkins,
    William B. White.”
    By the laws of Rhode Island it is required that a will to pass either real or personal estate must be “attested and subscribed ” in the presence of three or more witnesses, or it will be void.
    The question controverted in the Register’s Court was whether the domicil of Dr. Gibson was in Pennsylvania or Rhode Island at the time of his death ;'the Pennsylvania will having been witnessed but by two witnesses.
    The evidence showed that the will of 1865 had been proved in .the Probate Court of the city of Newport, Rhode Island, and that John J. Reese and wife appealed from the decree of that Probate Court to the Supreme Court, assigning as one of their reasons for appeal that the testator was not domiciled in Newport. The Supreme Court of Rhode Island reversed the decree of probate on the ground that Newport was not the domicil of the testator. The will was then presented for probate by Carey to the Court of Probate of the town of Portsmouth, Rhode Island:— Carey alleging in his application that the testator was domiciled in that town. The will was admitted to probate by that court, and letters testamentary granted to Carey. Reese and wife appealed from this decree to the Supreme Court of Rhode Island, and the decree of the Probate Court of Portsmouth was affirmed, November 16th 1869.
    There was much oral testimony taken in the Register’s Court on the question of the domicil of the testator. A synopsis of it is contained in the opinion of the Supreme Court as delivered by Judge Gordon; it is not necessary therefore to give it at large! The Register’s Court affirmed the decree of the Register; and this decree of affirmance was assigned for error by Carey on an appeal to the Supreme Court.

      O. H. Gross and G. W. Biddle, for appellant.
    To constitute domicil there must be residence with the intention of making it the home : Story on Conflict of Laws, sect. 144-49.

      George Junhin (with whom was W. L, Hirst,) for appellees.—
    Domicil is the place where a person has fixed his ordinary dwelling, without a present intention of removal: Bouvier, title “ Domicile,” and to constitute it, two circumstances must unite — actual residence and an intention to remain: Brown v. Albright, 40 Howard (N. Y.) Practice Reports 260; United States v. The Penelope, 5 Peters’ Admiralty Decisions 450. Residence is a question of intention: Casey’s Case, 1 Ashmead 126; Miller’s Estate, 3 Rawle 312; White v. Brown, 1 Wallace, Jr. 217; Prentiss v. Barton, 1 Brock. 393; Ex parte Wiggin, 7 Bank. Reg. 90. The burden of proof lies upon him who asserts a change of domicil: Burnham v. Rangeley, 1 Wood. & Minot 7. When one changes his residence permanently, he loses his domicil and acquires a domicil in the place of his own residence. But upon a return with an intention to reside, his original domicil is restored: Miller’s Estate, 1 Gallis. 274, 284; The Ann Green, 5 Rob. Adm. R. 99; 3 Wash. C. C. R.; Hallet v. Bassett, 100 Mass. 167; Littlefield v. Brock, 50 Maine 475; Bank v. Balcom, 35 Conn. 351; Still v. Woodville, 38 Miss. 646.
   The opinion of the court was delivered, February 26th 1874, by

Gordon, J.

The pivot around which this case revolves is the question of the domicil of Dr. Gibson at the date of the execution of the will of 1867. If that domicil is found to be in Pennsylvania, then that will is good, the decree of the Register’s Court was right, and further it is a revocation of the will published in Rhode Island in 1865. On the other hand, if his home was in Rhode Island in 1867, at the time of the publication of the Pennsylvania will, then it is conceded on all hands that the latter will is void, because not witnessed as required by the Rhode Island statute. The governing rule in such cases being that a will of personal property must conform to the law of the domicil of the testator: Flannery’s Will, 12 Harris 502. This view of the case relieves us from the consideration of the supposed conflict between the courts of Rhode Island and our own Register’s Court, and the whole case is narrowed down to a few obvious facts.

Dr. William Gibson, the testator, was born in Maryland, where he lived until he was about thirty years of age ; he then removed to the city of Philadelphia, where he resided some thirty-five or forty years, during which time he practised his profession and occupied the chair of surgery in the University of Pennsylvania. This city was his home; here he acquired his fame; here were the sepulchres of his two wives and several of his children, and here he himself was buried. At about the age of sixty-five he retired from his practice and professorship, and removed to a farm in Bucks county, where he lived for a few years, and then sold his farm, and spent some time travelling with his family in Europe.

About the year 1860 he returned to Pennsylvania, repurchased his old farm in Bucks county, and resided upon it for one or more years. Up to this time we have no difficulty about his domicil. It was in Pennsylvania. Maryland, the domicil of his origin, he had long abandoned, and had fully identified himself with the state of his adoption.

But before he finally left Pennsylvania, he had changed his domicil therein from Philadelphia to Bucks county, and he certainly was never redomiciliated in that city unless it was in the fall or winter of 1867, which is the point in controversy. His next remove was to the state of Maryland, having sold his farm in Bucks county and bought one near Baltimore; and upon this place he resided for about one year. • Again he sells out, and we next find him, about the year 1863, settled down in his own house, with his family and household goods at Newport, in Rhode Island. Here, for some four years, he made his home, making in the meantime occasional visits to St. John’s and elsewhere, but always returning to Newport. Here he paid his taxes, and voted at this place also; in March 1865, he made his will, describing himself therein as of Newport, Rhode Island. At this place also, he kept his money and bank account; and if he had any real estate outside of this state we are not thereof informed. In the fall of 1867 we again find him shifting his place of residence; this time, however, it was to Portsmouth, in the same state. Here, after disposing of his Newport property by putting it into the hands of an agent for sale, he purchased a homestead and again settled down with his family. We presume that no one would take upon himself to say that at this time Dr. Gribson was not domiciled in Rhode Island.

All the requisites pointed out by the text-writers are met and filled. Let us see what those requisites are. The domicil of a person is that place in which he has fixed his habitation, without any present intention of removing therefrom: Bouv. L. Diet., vol. 1, 489; Sto. Con. of Laws 43. Two things must concur to constitute domicil — first, • residence; secondly, the intention of making the place of residence the home of'the party. There must be both fact and intent: Id. sect. 44. So, though the residence be taken for a temporary purpose, intention may change its character to a domicil, but primá facie the place of residence is the domicil until other facts establish the contrary. Even a recent establishment was held to constitute a domicil where the intention of making it a personal residence was proved upon the party: Phil. Law of Dom., sect. 215. This rule applies not only in our interstate habitation, but also where a citizen removes to a foreign country. As where a citizen of Pennsylvania removed to Cuba, settled there and engaged in trade; it was held, that the presumption in favor of the domicil of origin no longer existed, and that the burden of disproving the domicil of choice lay upon him who denied it: Hood’s Est., 9 Harris 106. A fortiori would this presumption arise in favor of the domicil of choice, in the case of a citizen removing from one state to another, for he is a citizen of the United States, and the whole land is his common country. Now applying these principles to the testator’s case, and we find not one circumstance, either of fact or law, wanting to fix his domicil in Rhode Island. He resided there not only long enough for this purpose, but also for that of citizenship. It was the only place in the world where he had a permanent home; there was the abode of his family. In that most solemn instrument that man can set his hand to, his last will and testament, he describes himself as a citizen of that state. It is there he pays taxes, and there he votes. A more perfect combination of fact and intention is not conceivable. From whatever stand-point we view this residence, we find it labelled “domicil,” in unmistakable characters. But it is insisted that this domicil was changed by his expressed intention to abandon Rhode Island and resettle in Philadelphia. Let us examine the facts adduced in support of this hypothesis. In September 1867 he left Portsmouth, not -for Philadelphia, but for Savannah, with the intention of returning in the spring. Thomas Cavenaugh tells us that he left his house and grounds in his charge, to be properly kept until his return in the spring.

In his journey southward, he stopped at Philadelphia with his daughter Mrs. Reese, and remained with her some ten days or two weeks. During this time he frequently expressed his intention of returning to Philadelphia, for the purpose of making it his permanent place of residence, and regretted that his arrangements for his journey to Savannah were such that he could not at once do .so. He desired Dr. Reese to look out a house for him, but directed him not to engage it positively until his return in the spring. It was during this time that he executed his second will, the granting of letters on which gave rise to the present controversy. Shortly after this he departed for Savannah, where he died March 2d 1868. These are the circumstances, connected with two others hardly worth the mention, viz.: that he had a few old and valueless goods stored in the University buildings, and seven thousand dollars in government bonds, deposited in the Mechanics’ Bank of Philadelphia, which are produced to prove a change of the testator’s domicil from Rhode Island to Pennsylvania. Giving this testimony all the 'force which can be asked for it, it only evinces an intention to change his residence without one accompanying step in that direction. This is not sufficient, for, as we have already seen, though the intention to change one’s domicil be fully formed and announced, yet if there be no actual change of habitation, it will avail nothing: Sto. Conf. of Law, sect. 45. In this case, however, there does not appear to have been even a present intention to make that change; at best, it was to have been made in the future. Dr. Reese was not to contract for a house for him until the next spring, because his proposed trip South barred the idea • of his immediate settlement in Philadelphia. His will made during his short sojourn in that city, describes his unmarried daughter, who was one of his family, as of Portsmouth, Rhode Island. But not only does the present intention thus fall out of the count, but his very last expressions, as appear by his diary and letters, indicate that he regarded Portsmouth not only as his present but his future home. It is thus that hard facts leave us no alternative, but to conclude that at thé time of the making of the will of 1867, the domicil of Dr. Gibson was in Rhode Island, and as in such case the laws of that state must govern, it follows that the decree of the Register’s Court was erroneous, and must be reversed.

And now, February 24th 1874, this case came on for hearing on an appeal from the Register’s Court of the county . of Philadelphia, and was argued by counsel, &c.; and now, on consideration thereof, it is ordered, adjudged and decreed that the decree of the said Register’s Court be reversed and set aside, and that the decree of the said register, admitting to probate and granting letters testamentary upon the alleged last will of Dr. William Gibson, deceased, be reversed and set aside, and that said letters so granted be vacated and declared void and of no effect whatever, and that the appellees pay the costs of suit.


author: Agnew, C. J.

text:
    Yardley’s Estate.
    1. On a question of marriage, constancy of dwelling together is the chief element of cohabitation.
    2. Cohabitation is not a sojourn, a habit of visiting nor a remaining with for a time.
    3. Cohabitation and reputation are not marriage, when conjoined they are evidence from which a presumption of marriage arises.
    4. Cohabitation is to have the same habitation so that where one dwells there the other dwells with him.
    5. Without concomitant facts to prove marriage an irregular cohabitation and partial reputation is of no avail in the proof of marriage.
    6. Vincent’s Appeal, 10 P. P. Smith 128, distinguished.
    February 3d 1874.
    Before A&new, O. J., Mercür and Gordon, JJ. Sharswood, J. at Nisi Prius.
    Appeal from the Orphans’ Court of Philadelphia: No. 885, to January Term 1872. In the estate of Howard Yardley, deceased.
    The decedent died in May 1868; his estate was devised and bequeathed to collateral relatives, he having left no children. His executors having settled their account, the balance appearing on it was referred to Edward Hopper, Esq., as auditor for distribution. Elizabeth Sithens, alleging that she was Elizabeth Yardley and had been the wife of the decedent, appeared before the auditor, claiming that she was entitled to a portion of the estate as his, widow.
    The evidence taken in the case was not furnished to the reporter, but its character as elucidating the principles decided is probably sufficiently exhibited in the portion of the auditor’s report given in the appellant’s paper-book and the opinion of the Supreme Court:—
    “ Eor more than twenty-five years prior to his death Howard Yardley lived at No. 731 Wood street, in the city of Philadelphia. He was reputed a bachelor amongst his friends and acquaintances to whom he was best known.
    “ It is alleged and contended, however, by the claimant, who appears before the auditor as ‘ Mrs. Yardley,’ that she is the wife of the testator, and is entitled to a wife’s share of his estate. A great many witnesses were examined on both sides.- Their testimony will speak for itself, so that it is unnecessary for the auditor to comment upon it, further than to say that it has left no doubt in his mind as to where the preponderance lies. He would remark, however, that the testimony of Mary E. Laws, a witness for the claimant, is not entitled, in his opinion, to any credit whatever.
    “ The most important question before the auditor for his decision is : Was the claimant the wife of Howard Yardley? Her name before she assumed the title of ‘ Mrs. Yardley, ’ was ‘ Elizabeth Siddons ’ or ‘ Sithens.’
    “ On behalf of the residuary legatee, Edward S. Campbell, Esq., denies and resists the claim of the alleged widow; contending that the intercourse between Howard Yardley and the claimant was illicit and meretricious. It is conceded that the testator left no child or children. The auditor, after carefully considering the evidence and the able argument of counsel, is constrained to reject the pretensions of the claimant, and as matter of fact he finds that Howard Yardley was not her husband.
    “ The rights and duties incident to marriage spring from the contract. If there has been no contract, there has been no marriage. While it is true that no particular form of ceremony is necessary, it is, however, essential that the contract itself should have been entered into.' And therefore the inquiry in all these cases is: Have the parties contracted ? Such a contract can be proved by the witnesses who were present at the ceremony, and by the admission of the parties. These are the direct proofs. Its execution will be presumed from the cohabitation and reputation of the parties. Cohabitation alone will not do: Com. v. Stump, 3 P. F. Smith. Nor is reputation alone sufficient. Nor will cohabitation and reputation conjoined establish the marriage unless they be of such kind as to render the inference irresistible that the contract of marriage has really been entered into. This reputation must be general, and must come from the neighborhood and domicil of the parties.
    “ In this case there has been no attempt to prove the execution of the contract by witnesses who were present when the ceremony was performed, nor has it been shown that such ceremony ever was performed. I am asked, however, to presume that the contract was entered into, and to justify this presumption, evidence has been produced to show that the parties cohabited together, and that they were reputed to be husband and wife.
    “In the opinion of the auditor, the preponderance of the testimony shows that these parties did not live together as husband and wife, and did not bear that reputation, and that they did not sustain that relation continuously among those to whom they were jointly known. They did not' live together; and the periodical visits and temporary sojourns of Howard Yardley with the claimant, were not the acts of a husband. His residence, as shown by the testimony of his associates in his own neighborhood, and by his passing acquaintances, was at No. 781 Wood street. He always voted at the precinct in which that house is situated. He died at and was buried from that house. On the other hand, the claimant lived on Wood street, above Sixteenth street, from a time prior to 1850, up to 1860, and at No. 609 Parrish street, from 1860 to the time of Howard Yardley’s death; and she remained there after that event, and her receipts for rent paid by her, produced by her (upon call of Mr. Campbell) during the time she occupied these houses, are all given to her in the name of “E. Sithens,” and ‘ Mrs. Sithens.’ The first receipt produced being dated May 16th 1855, and the last December 6th 1869, after the present investigation had been carried on for seven months. No attempt was ever made to represent herself to the landlord as Mrs. Yardley. No person from the neighborhood in which she lived, such as the grocer, who would have known her and her residence and reputation, was produced. The same may be said as to the neighboring apothecary. Nor was the physician called. These would be the witnesses first called, we should naturally suppose, in a controversy of this kind. The absence of such testimony speaks loudly against the claim set up here, and creates a strong presumption that such witnesses would not testify that she had lived and cohabited with Howard Yardley, and that they were reputed as husband and wife.
    “ Whatever relation did exist between them, it is very plain did not arise from the contract of marriage, and that their mode of life, ‘their habit and repute,’ were not of that character from which a court would be justified in presuming that the contract of marriage had been entered into by these parties. With certain persons, however, she assumed the name of iMrs. Yardley,’ and it is probable that Howard Yardley suffered her to hold him out as her husband for the purpose of gratifying her and keeping up the deception upon them. It is to be observed that the persons to whom she introduced him as her husband, were her relatives, friends and acquaintances, and visitors to her house, where he was met by them. That he did not live with her all the time, is most conclusively shown, and if in truth he was her husband, and necessity did not require his absence from the city, as the testimony shows that it did not, why did they not live together? She practised a deception on a few of her friends and relations, for the purpose of maintaining a respectability in their presence, and to gratify her, he assisted, her in it; and the envelope addressed to ‘ Mrs. Yardley,’ if it was so addressed by him, was a part of the deception. It was given to one of her friends, who called at his office for it, and for him to have given any other name to one of the parties upon whom the deception had been practised, would have exposed her at once to disgrace among her acquaintances, and would have put difficulties in the way of his future participation in her society in the manner he had been accustomed to avail himself of it. That a man may do all these things, and yet ‘ the evidence fall far short of that which ought to satisfy the mind that there was an actual agreement to form the lawful relation of husband and wife,’ is well settled in Bicking’s Appeal, 2 Brewster 232.
    “ The entire conduct of the parties must be such as to lead any one to infer that they were husband and wife. To those who knew him best, and who knew of her through him, he called her his ‘shirt woman,’or ‘shirt maker.’ His absence from his home at No. 731 Wood street, if unusual, was called a visit to Germantown. No husband, no actual right-minded husband, would call his wife by such a name, or excuse his visits to her by falsehood.
    “ It is impossible to presume and believe that these parties were really husband and wife. The weight of the testimony and the presumption and inference are the other way, and with the auditor, irresistibly so; and it is impossible to say that the claimant has established her assumed position as the widow of Howard Yardley. Bicking’s Case was a stronger one than this, and there the claim of the assumed widow was rejected. In that case there was a child to be protected in the claim to legitimacy; and the evidence of the conduct of Mr. Bicking towards the child was very strong, yet it fell short of proving the claim of the mother and the legitimacy of the child. Here the evidence is much weaker; and it is impossible, after carefully examining it with a desire to do justice to all concerned, to say that the claimant was the wife of Howard Yardley.”
    The auditor accordingly reported that the claimant was not entitled to any portion of the estate of the decedent.
    After exceptions the Orphans’ Court confirmed the report.

      The claimant appealed to the Supreme Court, and assigned the decree of confirmation for error.

      S. W. Pettit and Gr. W. Biddle (with whom were F. A. Van Qleve and J. B. Bead), for appellant,
    cited Hill v. Hill, 8 Casey 511; Vincent’s Appeal, 10 P. F. Smith 228; Guardians v. Nathans, 2 Brewster 148; Garnis v. New Orleans, 6 Wallace 642; Hamilton v. Hamilton, 9 Cl. & Finnelly 327; Yelverton v. Yelverton, 4 Macq. 790; Campbell v. Campbell, 1 H. of L. Scotch Div. Appeals.

      J. G. Johnson and A. Thompson (with whom was F. 8. Campbell), for appellee,
    cited Commonwealth v. Omohundro, 2 Brewster 298; Cunningham v. Cunningham, 2 Dow 514; Hamilton v. Hamilton, 9 Clark & Finnelly 340; Bicking’s Appeal, 2 Brewster 232; 2 Greenl. Ev., sect. 464.
   The opinion of the court was delivered, February 16th 1874, by

Agnew, C. J.

There is no sufficient evidence of marriage in this case. The alleged cohabitation is partial and unsatisfactory, and the reputation of marriage is divided, the bulk lying on the side of singleness. The address upon the envelope, in the absence of the letter itself, has no weight, especially in the absence of a correspondence such as attends married life, and in the case of a person habituated to writing, as Howard Yardley was. The case depends on the alleged cohabitation and reputation of marriage. But it is a misnomer to call the visits of' Howard Yardley to Elizabeth Sithens, cohabitation. It was lacking in its chief element, constancy of dwelling together. His habitation was evidently at the house of his own family which he had never left and where he continued until his death, and was buried from it — the place where he was taxed, and from which he voted. Elizabeth Sithens was unknown to his relatives, except as his shirtwoman; never visited them, and did not follow his remains to the grave. His visits to her were evidently of an irregular kind, and though frequent, and continued for years, they bore no resemblance to married life. Loose notions seem to prevail as to what cohabitation is. It is not a sojourn, nor a habit of visiting, nor even a remaining with for time. None of these fall within the true idea of cohabitation as a fact presumptive of marriage. Neither cohabitation, nor reputation of marriage, nor both, is marriage. When conjoined they are evidence from which a presumption of marriage arises. The legal idea of cohabitation is that which carries with it a natural belief that it results from marriage only. To cohabit, is to live or dwell together.; to have the same habitation; so that where ' one lives and dwells, there does the other live and dwell always with him. The Scotch expression conveys the true idea, perhaps, better than our own — “ the habit and repute” of marriage. Thus when we' see a man and woman constantly living together — where one is dwelling there the other constantly dwells with him — we obtain the first idea or first step in the presumption of marriage; and when we add to this that the parties so constantly living together, are reputed to be man and wife, and so taken and received by all who know them both, we take the second thought or second step in the presumption of the fact of a marriage. Marriage is the cause, these follow as the effect. When the full thought contained in these words, cohabitation and reputation of marriage, is embraced, we discover that an inconstant habitation and a divided reputation of marriage, carry with them no full belief of an antecedent marriage as the cause. The irregularity in these elements of evidence is at once a reason to think there is irregularity in the life itself, the parties lead; unless attended by independent facts, which aid in the proof of marriage. Without concomitant facts to prove marriage, such an irregular cohabitation and partial reputation of marriage, avail nothing in the proof of marriage. It is precisely in this respect that this case has no resemblance to Yincent’s Appeal. Had that case rested on cohabitation and reputation alone, no marriage could have been inferred — the “ double life” and divided reputation of marriage would have decidedly condemned the conclusion. But De Amarelli’s conduct was marked by so many circumstances disclosing a true marriage, that when linked with the pure unspotted character of Catharine Evans, her wife-like conduct, and the reputation of their marriage beginning with facts tending to prove marriage at the very outset, the evidence of marriage was complete; while the reasons accounting for inconstant cohabitation were strong and peculiar.

It is argued here that the meretricious intercourse, to be inferred from the early relations of .these parties, ought not to forbid a conclusion that the marriage relation existed afterwards, and we are referred to (among others) the case of Campbell v. Campbell, Law Rep. 1 Scotch Divorce and Appeal Cases, before the House of Lords. But no case better illustrates the true idea of cohabitation than it. Mrs. Ludlow, a young and comely woman, eloped with Captain Campbell. Ludlow, the husband, died within two or three years afterwards. Captain Campbell and his reputed wife went to America, and thereafter constantly lived together as man and wife, were so accepted and known in his regiment and on his return to England were so received and recognised among all his relatives and acquaintances, including his relative, the Earl of Breadalbane, whose estate became the subject of controversy. They had children, who were baptized as theirs, and were accepted and received as legitimate offspring. Among other facts, Captain Campbell gave to her a general power of attorney in which he named her as “his wife, Eliza M. Campbell, residing at Maple-burgh (his residence), near the city of Edinburgh.” Thus they lived constantly together, moving from place to place together, always known and recognised as husband and wife, until his death, and after his death his son was recognised as heir in legal proceedings of tailzie. The evidence of cohabitation and general repute of marriage was most complete, said Lord Chancellor Chelmsford. The proof was so strong and overwhelming, it overcame the original meretricious relation, and afforded convincing evidence of a subsequent marriage by contract, all that is required by the Scottish law of marriage. In the case before us there is no such evidence, the case being left to rest upon a broken and irregular cohabitation, and a reputation whose weight lay on the side of single life. From the whole evidence we can draw no other conclusion, than that Elizabeth Sithens' was a kept mistress, and not a wife.

Decree affirmed, with costs to be paid by the appellant, and appeal dismissed.


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    Clendenon versus Pancoast.
    1. An owner authorized a broker to sell his land for $17,000 within a time named. The broker procured a buyer at the price who requested the owner to take mortgages in part payment if convenient, the owner said that released him, he was told at the same time that the request was made only if it suited him; that the buyer would pay cash ; the owner still refused. In a suit by the broker for commissions, Held, that it was for the jury whether the acceptance was conditional or absolute.
    2. The broker’s commissions were earned if he procured a buyer at the price named by the owner.
    February 3d 1874.
    Before Agnew, C. J., Merour, and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the District Court of Philadelphia: No. 1, to July Term 1872.
    This was an action of assumpsit brought to December Term 1868, of the court below, by Joshua Clendenon against Joseph Pancoast, to recover commissions, which the plaintiff alleged he had earned in negotiating the sale of real estate for the defendant.
    The plaintiff informed the plaintiff that he had some property to sell, and requested the plaintiff, who was a real estate broker, to sell it for him; he fixed the price at $13,000; the plaintiff took several persons to see the property, among the rest William Howell, who requested him to get a plan of the property. On going to the defendant for the plan, he said he would not sell, unless he got $17,000. Plaintiff informed Howell that the price had been raised to $17,000, and at Howell’s request he and plaintiff fixed a time to look at the property. Plaintiff afterwards called to see the defendant, who asked him if he had got a buyer ; plaintiff said he thought he had ; defendant then said, “ If your man will take it by Saturday be can have it, after this week I will not bind myself.” On Saturday Howell told plaintiff that he would take the property, and requested him to ask the defendant if he would take some mortgages on account of the purchase-money. Plaintiff went on the same day to defendant, and told him it was Howell who wished to purchase, and that he said he would like him to take some mortgages for part of the purchase-money ; the defendant replied, “ That lets me out, I won’t sell.” Plaintiff replied, “No, he only said he would like to give you the mortgages, if it suited you, but he will take the property anyhow, and pay you the cash, if you require it the defendant insisted that this let him out, saying, “ If you had said nothing about the mortgages, I was fast — I could not have helped myself.” Plaintiff said Howell agreed to take the property, and would take it, only said he would like to take the mortgages, if convenient; but defendant persisted in his refusal, and requested plaintiff to tell Howell and ask him “ to let him up.” Plaintiff told Howell who directed him to go to the defendant, and demand the papers; plaintiff did so, but defendant still refused.
    Howell testified corroborating the part of plaintiff’s statements of which he had knowledge, and also that he was prepared and willing to pay the whole purchase-money, “cash down.”
    The plaintiff here closed his evidence, and the court, on motion of the defendant’s counsel, directed a nonsuit.
    This was assigned for error by the plaintiff on the removal of the record to the Supreme Court.

      R. P. White, for plaintiff in error,
    cited Keys v. Johnson, 18 P. F. Smith 42 ; Clapp v. Hughes, 1 Phila. Rep. 382.

      J. B. Townsend, for defendant in error,
    cited Brennan v. Perry, 26 Legal Intell. 222; Pratt v. Patterson, 27 Id. 133; Keys v. Johnson, 18 P. F. Smith 42.
   The opinion of the court was delivered, May 11th 1874, by

Mercur, J.

This suit was brought to recover commissions claimed to have been earned by the plaintiff as a real estate broker. When his evidence closed, the court ordered a nonsuit. Was this error ?

The plaintiff averred that he was authorized to procure and did procure a person to bargain and buy of and from the defendant the land in question, for the price or sum of ¡§17,000.

The evidence shows that the plaintiff had some negotiation with a Mr. Howell in regard to purchasing it, and they had fixed upon a time to go and examine the property. During an interview soon after between the parties, the plaintiff informed the defendant that he thought he had procured a purchaser and that he had given him the whole of that week to decide. To this defendant replied, “ If your man will take it by Saturday, all right, he can have it; after this week I will not be bound.” The plaintiff communicated this to Howell. The latter examined the property, and on Saturday morning informed the plaintiff he would take the property. He however requested the plaintiff to ask the defendant whether it would be convenient to take some mortgages on account of the purchase-money. Thereupon the same morning the plaintiff told the defendant that his man would take the property. That it was Mr. Howell, and that he would like to give him some mortgages in part payment of the purchase-money. The defendant replied, “That lets me out, I won’t sell.” The plaintiff said “ No, he only said he would like to give you the mortgages, if it suited you, but he will take the property anyhow, and will pay cash, if you require it.” The defendant persisted in his refusal to close the sale, and Howell insisted upon the purchase, declaring his readiness to pay the cash as soon as the papers could be prepared.

We understand the defence to rest wholly upon the fact, that when the acceptance was communicated to the defendant, it was accompanied with a request that he take mortgages for a part of 'the purchase-money. It would seem by the defendant’s answer, that at first he might have understood this request to be one of the conditions of the purchase. If so, it appears this impression was immediately corrected by the plaintiff. This is the turning-point in the case. Howell accepted the offer as to price, and upon the day designated. Did he or not change the manner of payment ? The offer to sell was for cash. Was the acceptance conditional upon the defendant’s taking some mortgages, or was it unconditional ? We are clearly of the opinion that the evidence was sufficient to have been submitted to the jury to find whether.it was not unconditional. If the jury should so find, the plaintiff had clearly sustained his averment. He had procured a person to bargain and buy the property of the defendant at the price named. We think, therefore, the learned judge erred in not submitting the case to the jury.

Judgment reversed, and a procedendo awarded.


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    Commonwealth, ex rel. O’Connor versus McCuen et al., Commissioners of Philadelphia.
    1. O’Connor indicted Tack and others for conspiracy, and also commenced civil proceedings against them ; pending the indictment the parties referred all matters in dispute; when the indictment came on for trial the bill was submitted without evidence and by consent of prosecutor and District Attorney with the approbation of the court there was a verdict of “Not Guilty, county to pay the costs.” Held, the county (city) was not liable for the costs, the prosecution being for private purposes.
    2. The Act of March 31st 1860, authorizing costs to be put upon a county, makes them liable only as a result of a trial.
    3. The purpose of the act was to put the costs on the party behaving worst or divide them according to their demerits.
    4. When nothing has been submitted to a jury there has been no trial within the act.
    5. To charge costs on the county there must be a determination of the jury in the very case.
    February 4th 1874.
    Before Agnbw, C. J., Mercur and Gordon, JJ. Sharswood, J., at Nisi Prius.
    Error to the Court of Common Pleas of Philadelphia: No. 97, to January Term 1873. The history of the case was:—
    On the 28th of September 1872, James O’Connor presented a petition to the Court of Common Pleas for a mandamus to Alexander McCuen, Thomas M. Locke and James Bain, commanding them to pay the petitioner certain costs, alleged to have been incurred on the trial of an indictment against A. H. Tack and othei’S.
    The indictment charged A. H. Tack et al. with a conspiracy in being oil brokers and dealers in oil and conspiring to defraud the prosecutor, their principal and the public, by illegal and fraudulent combinations and representations, to inflate excessively by cornering the oil market. April 14th 1868, the jury were called, and after a long and bitterly contested trial, of great notoriety in the oil trade, and with the public at large, the jury being unable to agree, were, April 23d 1868, discharged. Although the prosecution did not result in a conviction, it produced all the public benefit in breaking an attempted corner in that market on a gigantic scale, involving foreign as well as the home markets, in progress when the prosecution began, and also in so changing and settling the character of that trade that no combinations for corners were afterwards attempted in it, although it is in its nature peculiarly open to them, and had at the time of the prosecution, begun to be injured by them.
    Before the second trial, the parties in the case referred all the civil issues between them, arising out of the same transactions, for which a bill in equity and action on the case were pending, to the final arbitration of Judge Strong, and at the second trial the jury, with the consent of the prosecutor and of the district attorney, with the approval of the judge presiding at the trial, who presided at the former trial, on submission of the bill, rendered a verdict of not guilty, the county to pay the costs.

    The petitioner set out that at his prosecution an indictment was found at the March Term 1868, of the Court of Quarter Sessions at Philadelphia, against Augustus H. Tack and others for conspiracy; that upon the trial, April 23d 1865, the jury having informed the court that they could not agree, were discharged ; that on the 26th of January 1869, another jury was impannelled, and with the consent of the petitioner, as prosecutor, and the district attorney and with the approval of the judge presiding at the trial, upon submission of the indictment, the jury returned a verdict of “ not guilty, county to pay the costs.”
    That the Act of Assembly of March 31st 1860, sect. 62, 64, provides, “ in all cases of acquittals, by the petit jury, on indictments for the offences aforesaid (except felonies), the jury trying the same shall determine by their verdict, whether the county, or the prosecutor, or the defendant, shall pay the costs, or whether the same shall be apportioned between the prosecutor and the defendant, and in what proportions,” “ and the costs of prosecution accruing on bills of indictment charging the party with felony, shall, if said party be acquitted by the petit jury on the traverse of the same, be paid by the county.”
    That the Act of Assembly of May 3d 1856, sect. 5, relating to the duties of the city commissioners of the city of Philadelphia, provides, “that the city commissioners shall draw no warrants upon the City treasury for the payment of the fees of jurors, viewers, witnesses or officers of the courts, without a certificate of the prothonotary or clerk of the court, countersigned by one of the judges of the court in which the duty or service was performed, that the same is correct to the best of his belief, nor shall any warrant be drawn for jury or witness fees, in favor of any person but the juror or witness entitled to such fees.”
    That on notice to the District Attorney and his examination of the petitioner’s bill of costs in the prosecution, the petitioner caused the bill to be taxed by the clerk of the court on the 14th of October 1869, and the taxation was not appealed from; that the court ordered the clerk to certify this taxed hill to the city commissioners, Alexander McCuen, Thomas Locke, and James Bain, and the president judge of the court countersigned the certificate, which is as follows:—
    “ I hereby certify, that the foregoing is a true copy of the docket entries in the case there stated, as the same now remains of record in the office of the Court of Quarter Sessions, &c., for the city and county of Philadelphia, and that the foregoing taxed bill of costs for witness fees, due to the witnesses therein named, is correct, to the best of my belief, and that this certificate is made to the city commissioners of the city of Philadelphia, that they may, by refusal to draw warrants therefor, and upon a mandamus, upon the petition of said witnesses, or one of them, to compel the drawing of said warrants, determine the question whether under the law the jury in said cause were warranted in determining that the county should pay the costs of the prosecution.

      “ Witness my hand and the seal of said court, this 18th day of March, a. d. 1872.
    (Countersigned,) “J. P. Galton, Pro. Clerk. “Joseph Allison.”
    That the taxed bill of costs included a bill of costs of the petitioner for daily pay, &c., on behalf of the prosecution, amounting to $208.88, which is unpaid, but that the commissioners had refused to issue their warrant on the treasurer for its payment.
    The prayer was for a mandamus to the commissioners commanding them to draw their warrant on the treasurer for the payment of the petitioner’s bill.
    The commissioners answered that the indictment had been submitted to the petit jury by the District Attorney without offering any evidence, and “ there was in fact no trial of the indictment; that the prosecution was abandoned by the District Attorney, with the consent of the petitioner as prosecutor, by an agreement between him and the defendants, by which agreement all civil questions in dispute between them were referred to an arbitrator ; that the prosecutor, having filed his bill of costs, amounting to $2729.68, had the bill taxed, and applied to the Court of Quarter Sessions for an execution against the city, but the court refused to enter judgment <on the verdict and allow an execution to issue, which decree was removed to the Supreme Court and a judgment of non pros there entered, March 17th 1871. For these reasons, and upon the certificate to the bill of costs, the commissioners had refused to pay the bill of costs.”
    A rule was granted to show cause -why an alternative mandamus should not be issued, which was discharged October 12th 1872.
    The relator removed the record to the Supreme Court, and assigned for error the order discharging his rule.

      Gf. L. Crawford, for plaintiff in error.

      B. JSÍ. Willson, for defendants in error.
   The opinion of the court was delivered, February 9th 1874, by

Agnew, C. J.

This is not a proceeding in the Court of Quarter Sessions. It is a petition to the Court of Common Pleas for a writ of mandamus to compel the city commissioners to draw their warrant on the city treasurer for payment of a bill of costs incurred in the Quarter Sessions. The facts are set forth in the petition and answer and also in the history of the case, and are therefore regularly before us as the ground on which the mandamus is asked for. James O’Connor, the relator, prosecuted an indictment in the Quarter Sessions against the Tacks and others for a conspiracy in relation to large oil transactions carried on between them. After a trial and disagreement, and discharge of one jury, the prosecutor and defendants came to an arrangement to settle their matters by a reference, and when the indictment came up again, by agreement, the prosecution being abandoned, a verdict was rendered without evidence or trial, of not guilty, and that the county pay the costs. The bill of costs as taxed exceeded two thousand seven hundred dollars, of which the prosecutor claimed two hundred and eight dollars and eighty-eight cents. He, as relator, now seeks this mandamus to compel payment of his own bill. It is clearly proved that the criminal proceeding was used by the prosecutor to accomplish a private purpose, rather than to serve the ends of justice. The reference and the mode of disposing of the indictment make this plain. Why should the city be saddled with the costs of such an attempt ? Clearly it should not be, unless it has been legally so fixed with their payment as to be beyond escape. The county or city is never in court to defend herself, and is no party to such a proceeding, and it is the duty of the court to see that she is not charged by mere arrangement of private parties. The purpose of the law was plainly to make the jury to stand as a shield against improper charges, and that the county should be charged only as a result of a trial. The Act of March 31st 1860, provides that “ in all cases of acquittals by the petit jury on indictments for the offences aforesaid (viz.: misdemeanors), the jury trying the same shall determine by their verdict whether the county or the prosecutor or the defendant shall pay the costs, or whether the same shall be apportioned between the prosecutor and the defendant, and in what proportion.” In misdemeanors the parties to an indictment are determined by the law. The 27th section of the Act of 31st March 1860, enacts that no person shall be required to answer to any indictment unless the prosecutor’s name, if any there be, is endorsed thereon; and when none is avowed, enables the court to hear witnesses and determine whether there is a prosecutor, and if they find there is, to direct his name to be endorsed on the indictment: 1 Bright. Big. 381, pi. 28. It has been held also that when the jury find costs against the prosecutor, they must name him in their verdict. It was the evident purpose of the law to place the costs upon the party that has behaved the worst, or to divide them between them in proportion to their demerits. It is not just that the public should pay the expense of a litigation growing out of malice or revenge, or where the behavior of the defendant is deserving of punishment, though he may through defects of form or of evidence, escape conviction of a technical offence: Baldwin v. Commonwealth, 2 Casey 172. Hence the act says, the jury trying the same shall determine by their verdict who shall pay the costs. But how can it be said the jury has tried and determined anything, when nothing has been submitted to them ? On what principle of propriety or of justice shall it be in the power of the parties to hush up a prosecution and agree to throw the costs on the city or county ? Such a verdict is not a trial, and really determines nothing against an absent party. To grant a mandamus in such a case, upon the admitted facts, would make the court a party to a mere shift, by which the parties would unload themselves of all responsibility.

This case is, by its admissions and the nature of the application, much stronger than that of The Commonwealth v. Horner, 10 Casey 440, where this court, looking into the facts adduced by the prosecutor himself, refused to reverse the order of the Quarter Sessions setting aside the taxation of the prosecutor’s bill of costs. There were two hills of indictment, one for larceny and the other for conspiracy, and a settlement having taken place, the prosecutor filed his bill of costs in the conspiracy case, while in point of fact the costs were incurred in the felony case. On the testimony taken in the court below, relied on by the prosecutor, upon his writ of error, this court refused in that case to reverse the action of the Quarter Sessions. The determination of the jury in the very case, is the only protection the city or county has against fictitious claims. To suffer the costs to be imposed otherwise, would encourage litigation where the arm of the law, in its criminal branch, is used for improper purposes. Fortunately, we are not bound to do this wrong. The mandamus is a great prerogative writ, of extraordinary character, which may not be invoked unless the relator is clearly entitled to it, and has no other legal remedy: Commonwealth v. Canal Commissioners, 2 Penna. R. 517; Hester’s Case, 2 W. & S. 416; Heffner v. Commonwealth, 4 Casey 108; 1 Jones 196. We think that the relator has not shown such a case here, as to require us to reverse the refusal of the court below to award the writ.

The judgment is therefore affirmed.