text:
    Gordon versus Commonwealth.
    1. A prosecutrix swore on cross-examination that she did not testify to certain facts when before the grand jury. The defendant called the foreman of the grand jury to prove what she actually did testify. The court excluded him on the ground of public policy. Held, that this was error, and he was competent to so testify.
    2. On no sound principle can it be 'said that a witness who has testified before a grand jury shall be permitted to claim that his evidence was a privileged communication, so that it shall not be shown, under the direction of the court, whenever it becomes material in the administration of justice. It is material when the evidence is necessary to protect public or private rights.
    November 20th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Quarter Sessions of Washington county: Of October and November Term 1879, No. 149.
    Indictment of James A. Gordon for fornication and bastardy, and seduction.
    On September 17th 1878, information was made by Ida May Hamilton, charging Gordon with seduction, fornication and bastardy. At January sessions 1879, a bill of indictment was found a true bill by the grand jury. The case was continued to March sessions 1879, at which term Gordon was put upon trial, the indictment containing two counts, one for fornicati’on and bastardy, and one for seduction.
    Upon the trial of the said indictment, the prosecutrix testified, that she became acquainted with defendant in the spring of 1876 ; that this acquaintance was followed by attentions paid to her, which finally culminated in an engagement of marriage some time in the fall of the same year, but with no time fixed for the marriage. She further testified, that on September 1st 1877, this promise was renewed, and the 15th of said month fixed as the time for the marriage; that on the night of September 2d, the day after the alleged engagement was definitely made, the defendant had criminal intercourse with her, and again on both the 5th and 6th of said month. On October 1st 1877, Gordon left home and remained away until September 1878, when he voluntarily returned and, learning of the information for seduction made on the 17th of that month, entered into recognisance, for his appearance at January sessions 1879. On October 6th 1877, five days after Gordon went away, an information was made by said Ida May Hamilton, charging him with a rape, committed upon her the night of September 29th 1877. Upon this information, a bill of indictment was found at January term 1878, by the grand jury, of which James B. Ruple was foreman. Upon the trial of the case for seduction, fornication and bastardy, the prosecutrix, upon cross-examination, testified, that she was a witness before the grand jury at January sessions 1878, upon the investigation of the charge of rape; that James B. Ruple was foreman of that body; and that she had then testified, that the rape was committed on the night of September 29th 1877. She was then asked whether, during the said investigation, she was not asked by the said foreman in the presence of the grand jury, if prior to September 29th, the time of the alleged rape, Mr. Gordon had ever had criminal connection with her at any time, and whether she had not said in answer to that question, “ No. He had frequently insisted upon it, but I had always refused him. That was the first, last and only time.” The prosecutrix denied having been asked such question or having made such answer.
    Afterward the defendant called Ruple, and made the following offer, viz.:
    “ Defendant offers to prove by the witness, that he was foreman of the grand jury at January term 1878, before which body a hill of indictment for rape on the information of the prosecutrix, was preferred against Gordon, the defendant, that the said Miss Hamilton testified before them, that the defendant had committed upon her the rape charged, on the 29th day of September 1877; that the witness propounded to her this question, whether or not Gordon had ever had criminal' connection with her at any time before that date; and that Miss Hamilton testified in reply, that he had often insisted upon it, but she had always refused him, and that that was the first, last and only time. This for the purpose of affecting the credibility of the prosecutrix, with reference to the testimony heretofore given by her in this case.”
    To this offer, objections were made, on the ground of incompetency ; and that, it is against the policy of the law to permit a member of the grand jury to disclose what was sworn to in the grand jury room.
    The court, Hart, P. J., overruled the offer, sustaining the second objection made thereto.
    The jury found the defendant guilty, when he took this writ and alleged, that the court erred in sustaining the objection to the above offer of evidence.

      Crumrine & Murdoch, for plaintiff in error.
    There is nothing in the oath of the grand juror to prevent him from disclosing what a witness testified to in the grand jury room, when called upon to do so in a judicial proceeding, and in a proper case: Whart. Ev., sect. 601; Commonwealth v. Hill, 11 Cush. 137; Commonwealth v. Mead, 12 Gray 167; Way v. Butterworth, 106 Mass. 75; People v. Hulbut, 4 Denio 133 ; King v. Marsh, 1 Lead. Crim. Cases (Bennett v. Heard) 270-271.
    The oath of the grand juror does not prohibit his testifying w'hat was done before the grand jury, when the evidence is required for the purposes of public justice, or the establishment of private rights: Burnham v. Hatfield, 5 Black. 21.
    The witness who testifies before the grand jury, has no privilege to have his testimony treated as a confidential communication, but he ought to be considered as deposing under all the obligations of an oath in judicial proceedings; and, therefore, the oath of the grand juror is no legal or moral impediment to his solemn examination under the direction of the court, as to evidence before him, whenever it becomes material to the administration of justice. * * * When a witness testifies differently in the trial before the petit jury from what he did before the grand jury, the grand jurors may be called to contradict him, whether his testimony be favorable or adverse to the prisoner: The State v. Broughton, 7 Ired. 96.
    The testimony of grand jurors is admissible to prove, that a witness on behalf of the prosecution testified differently on his examination before them, from the testimony given by him before the jury at the trial: Commonwealth v. Meade, 12 Gray 169 ; State v. Fossett, 16 Conn. 466. We, therefore contend, that neither upon principle nor by force of any rule established by the policy of the law, should our offer have been excluded.

      Braden Miller and J. Add. Mollvaine, District Attorney, for the Commonwealth.
    The rule of the common law anciently was, that the proceedings before a grand jury in toto were a sealed book. Not only did the policy of the law, in the furtherance of justice, require this, but the jurors were sworn to secrecy. For many years in England, a witness could not be convicted of perjury committed in his examination before a grand jury, except upon the testimony of others than the members of the jury: Regina v. Hughes, 1 C. & K. 519 (47 E. C. L. R.); Regina v. Gazzard, 34 E. C. L. R. 911; 2 Russell on Crimes 912. The first invasion of this rule was, that where a witness is indicted for perjury on account of false testimony before a grand jury, the grand jurors are competent witnesses to prove the facts: 1 Whart. Am. Crim. Law 508; 1 Archibald’s Crim. Pr. & Pl. 488, note 1. The next invasion of the ancient rule was, the calling of a grand juror to prove who the prosecutor was in the case: 2 Russell on Crim. Law 912 ; Sykes v. Dunbar, 2 Selw. N. P. 1075. The New York and Massachusetts statutes are consistent with these departures.
    In Pennsylvania, we have no statute modifying the old common law on this subject, further than Sykes v. Dunbar, supra, does; and we have, as far as we can find, only one deliverance of the Supreme Court on this subject: Huidekooper v. Cotton, 3 Watts 56; and this in no way makes a further modification so as to admit the defendants’s offer.
    We take if, that there are no authorities cited on the other side, nor are there any as far as we know, that would allow a grand juror in this state to testify as proposed in the offer of the defendant below. He can testify in a perjury case arising out of the examination of a witness before the grand jury ; he can testify as to who the prosecutor was, in a case where the bill was ignored; and he might testify whether a particular person was examined before the grand jury or not. Any further modifications of the old common law than these, are found in other states, and arise out of constitutional and statutory provisions.
   Mr. Justice Mercur

delivered the opinion of the court, January 5th 1880.

This was a prosecution for seduction, fornication and bastardy. The prosecutrix testified that the plaintiff in error had criminal connection with her on the 2d, 5th and 6th respectively, of September 1877. On cross-examination she answered that she was a witness before the grand jury at the January Sessions 1878, on a charge of rape against him, and then testified that the rape was committed on the 29th of September 1877. She was further questioned whether, on that hearing she' was not asked by the foreman of the grand jury, if prior to the 29th September, the time of the alleged rape, Mr. Gordon ever had criminal connection with her, and whether in answer thereto she did not say “No. He had frequently insisted upon it, but I had always refused him. That was the first, last and only time.” She swore she was not asked that question, and made no such answer. With a view of casting discredit on her testimony, and impairing her character as a witness, the plaintiff in error called the foreman of that grand jury, and proposed to prove by him that he did then ask her that question, and that she so answered. The question put to the grand juror was objected to, principally on the ground that it was against the policy of the law to permit a grand juror to disclose what was sworn to in the grand jury room. The court sustained the objection. This constitutes the sole ground of alleged error.

If the witness be incompetent for the purpose offered, it must be by reason of public policy. The question to its full extent does not appear to have been ruled by this court. As the rule was held at an early day he would be incompetent. For a long time, however, the courts have gradually been modifying its strictness, and manifesting a determination to distinguish between the character of the evidence offered. The juror may be a competent witness 'for some purposes and not for others. Thus in Sykes v. Dunbar, 2 Wheat. Selw. N. P. 1072, one of the grand jury by whom a true bill had been found, was held competent to testify as to who was the prosecutor, although it was contended he could know the fact only from the testimony which had been produced before him in his character as a grand juror, and which it was claimed he was bound not to disclose. This case was cited with approbation in Huidekoper v. Cotton, 3 Watts 56, and the competency of a grand juror to testify as to who was the prosecutor, affirmed. In this case that part of the grand juror’s oath, “the Commonwealth’s counsel, your fellows and your own, you shall keep secret,” was considered, and a reasonable construction given to it. Substantially it was said the oath and whole proceeding before a grand jury were intended to protect the innocent witness and juror, but to punish the guilty party. It should not be so construed as to punish the innocent or obstruct the due course of justice. On no sound principle can it be said that a witness who has testified before a grand jury shall be permitted to claim that his evidence was a privileged communication, so that it shall not be shown, under the direction of the court, whenever it becomes material in the administration of justice. It is material when the evidence is necessary to protect public or private rights. It must be conceded that the rule shall not be carried so far as to conflict with the juror’s oath. He shall not testify how he or any member of the jury voted, nor what opinion any of them expressed in relation thereto, nor to the act of either which might invalidate the finding of the jury. His action, and the action of his fellow-jurors, must be shown only by the returns which they make to the court. What a witness has testified to before them is quite another matter. A witness may be indicted for perjury, for false swearing before a grand jury, and grand jurors are competent witnesses to prove what he swore to before them : 1 Whart. Am. Crim. Law, sect. 508. It is said in 1 Whart. Law of Ev., sect. 601,.“It was at one time supposed that a grand juror was required by his oath of secrecy to be silent as to what transpired in the grand jury room ; but it is now held that such evidence, whenever it is material to explain what was the issue before the grand jury, or what was the testimony of particular witnesses, will be required.” This conclusion appears to be sustained by numerous authorities, among which may be cited: Thomas v. Commonwealth, 2 Robinson (Va.) 795 ; State v. Offnutt, 4 Blackf. 355; State v. Fassett, 16 Conn. 457 ; Commonwealth v. Hill, 11 Cush. 137 ; State v. Broughton, 7 Ired. 96 ; Commonwealth v. Mead, 12 Gray 167; Way v. Butterworth, 106 Mass. 75. The case of Commonwealth v. Mead, supra, rules the precise case we have before us. It was an indictment for manslaughter. To contradict a witness who testified in behalf of the Commonwealth, on the trial, the defendant offered to prove by the grand jurors who found the indictment, that he testified differently before them. The court below excluded the witnesses on the ground that it was against public policy and established practice to permit grand jurors to detail the evidence given before them, for the purpose of impeaching the witness on the trial of the indictment. On exceptions taken the case was reversed. The court holding that when the case was reached for triaFall useful purposes of secrecy had been accomplished. The necessity and expediency of retaining the seal of secrecy were at an end, and the jurors were held competent for the purpose of proving the facts.

The indictment for the rape in which the prosecutrix testified was found in January 1878. In the present case the indictment was found in January 1879. The district attorney elected to try the latter first. The offer in contention is not to prove what the witness testified to before the grand jury in the prosecution for rape with a view of contradicting it, or of casting discredit on its accuracy. Its purpose is to impair her testimony now by proving-that she swore to a different state of facts on another occasion, in conflict with her present evidence. It is not in conflict with the oath of a grand juror, to prove by him her previous testimony. It is material evidence of which the plaintiff in error should not be deprived unless demanded by public policy. We tjiink it is solely a question of public policy. The reasons given at an early day for excluding the kind of'evidence offered, and for holding a grand juror incompetent to testify to such facts, have lost their force.

The knowledge by a witness, who is examined before a grand jury, that the jurors may testify to what he has there sworn, will tend to advance the cause of truth and justice. A wise -public policy, and the rights of person and of property, require us to hold the foreman of the grand jury to be a competent witness for the purpose offered.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Neel versus Beach.
    1. All the executors, whose renunciation is not of record, must join in a conveyance of real estate.
    2. Where one executor qualified and alone conveyed real estate belonging to his testator the subsequent renunciation by the other executor did not validate the deed.
    3. An executor acts by virtue of his power to convey, and the power wanting, his act is1 a nullity.
    2. Heron v. Hoffner, 3 Rawle 393, followed.
    November 20th 1879.
    Before Sharswood, C. J., Mercu'r, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., -absent.
    Appeal from the'Court of Common Pleas of Washington county: Of October and November Term 1879, No. 277.
    Chauncy Beach, of Monongahela city, Washington county, Pennsylvania, died testate on the 19th day of May 1870. At the time of his death he was a member of the firm of Foster, Blythe & Co., and engaged in the lumber business, building boats, furnishing materials for buildings, &c. The firm owned, beside their stock in trade, tools, &c., a large amount of real estate on which their mills were erected, or used as lumber yards, &c. The title to the larger part of this real estate was in the firm, but some of it was in the members of the firm as tenants in common. By his will, Chauncy Beach gave all his property, real and personal, to the children of his son, Charles E. Beach. In the third clause he makes provision for his daughter Cordelia, in case she came to want. In the fourth clause he appoints Charles guardian of his own children and custodian of their property. In the fifth clause Charles is authorized, in case of sickness or inability to provide for himself and family, to use the property for that purpose. He is also authorized to invest the property in business or otherwise, as he may think best for the estate.
    In the last clause he appoints Charles E. Beach and George T. Scott, executors,'and authorizes them or the survivor to make, sign, seal, deliver acknowledge any deed or deeds, or other writing that may be necessary to carry out the intent and meaning of the said will. C. E. Beach alone took out letters testamentary on the will.
    After the death of Chauncy Beach, his son Charles E. Beach continued the investment of his father’s estate in the firm of Foster, Blythe & Co., until the 13th day of April 1876, when he entered into an agreement with James Neel, one of the other members of the firm of Foster, Blythe & Co., to sell the interest of the said Chauncy Beach in the firm property, it being an undivided one-fourth of all the real and personal property. The agreement was consummated. James Neel gave judgment notes, which were entered as a lien in the prothonotary’s office for the deferred payments, and received a deed dated April 13th 1876, acknowledged May 16th 1876, for all the interest of Chauncy Beach in the real estate, including that held by the partners in common. This deed was executed by “ C. E. Beach for himself and as executor of C. Beach, deceased,” and by Elizabeth Beach, his wife, in consideration of the sum of $8225. After the consummation of the agreement and the delivery of the said deed on the 17th day of April 1877, George T. Scott, the co-executor named in the will, filed his renunciation in the register’s office. On the 21st day of April 1877, three days after the filing of the renunciation of George T. Scott, C. E. Beach caused a writ of fieri facias to be issued on judgment No. 56, August Term 1876, it being one of the judgments for purchase-money already mentioned, and the property of James Neel was levied upon. James Neel then presented his petition to the Court of Common Pleas of Washington county, setting forth the facts, claiming that the deed of April 13th 1876, did not convey him a good title, and that the execution of the said deed was not a valid execution of the power in the will. The petitioner also offered to reconvey the property on repayment of the money already advanced on the contract. On this petition the execution was stayed and a rule granted on C. E. Beach to appear and answer. The petition was afterwards amended to embrace a prayer to open the judgment and let the defendant into a defence. To this petition 0. E. Beach filed an answer, setting forth the will, the renunciation of George T. Scott, the article of agreement and contract in full, and adding an offer to correct any informality the court might think there was in the deed.
    There were substantially three questions raised upon the argument in the court below :
    1st. Did the renunciation of George T. Scott, filed April 17th 1877, validate the deed of C. E. Beach, executed the year before '!

    2d. Was the partnership real estate to be considered in law as personal estate, in such a sense as to render a formal deed by the persons authorized in the will unnecessary ?
    3d. Was there sufficient authority granted in the will to C. E. Beach alone to execute a deed ?
    The first point the court below decided adversely to the plaintiff below, saying: “Looking then at the deed as a conveyance by one of two executors empowed by will to execute such, it must be regarded in the light of Heron v. Hoffner, 3 Rawle 393, as a defective execution of the power, and therefore passing no title to the defendant.”
    The second point was decided the same way, the court holding that the legal title, “ though held as partnership property, must nevertheless pass by proper and legal conveyance.”
    The third question was decided in favor of the plaintiff below, the court holding that the fifth clause of’ the will standing alone, which authorized Charles to “invest my property in business,” conferred ample power upon him to sell, transfer and convey all the property, real and personal; and that th.e direction of the testator in the last section, to the executors, to make deeds, &c., did not abridge the power already given to his son Charles, in the section immediately preceding.
    The court then discharged the rule at the costs of the petitioner.
    Neel took this appeal and alleged that the court erred,
    1. In ruling that “ the sale and conveyance by Charles to the defendant, James Neel, was valid and passed a good title to the testator’s interest in the real and personal assets of Foster, Blythe & Co.” 2. In ruling that the “5th section of the. will confers ample powers upon Charles E. Beach to sell, transfer and convey any and all of the property, real and personal, of which he was made trustee or custodian.” 3. In ruling that the power given to the executors in the last clause of the will did not “ abridge the power already given to his son Charles in the section immediately preceding.” 4. In refusing the petitioner the relief prayed for in his petition. 5. In discharging the rule to open the judgment.

      A. W. & M. Aoheson, John Barton and Thomas H. Baird, for plaintiff in error.
    In the interpretation of the will, regard must be paid to the .circumstances under which it was made. The testator possessed a large estate, consisting of real and personal property, which was already invested in the partnership of Foster, Blythe & Co.; his death would dissolve the partnership and compel a settlement of its affairs. The will authorized the continuance of the partnership if Charles thought proper so to do. Charles acted on this authority, and the partnership was carried on for years after Ohauncy Beach’s death, as before. Was not this the power contemplated by the testator by the use of the words “ Charles may invest my property in business or otherwise as he may think best for the estate ?” But when he determined to withdraw' the estate from business and sell and convey the same, must he not call upon his co-executor to join in the execution of any deed or deeds necessary to convey the title and carry out the intent and meaning of the will ? There are two powers in the will which must be harmonized, and they can be by allowing Charles to direct in what way the estate shall be used or invested; and having once done so,' the executors are to make and execute all deeds necessary to give effect to the intention of the testator. If this be the true construction to be given to the two clauses of the will, then it is manifest the deed made by Charles is invalid, there having been no legal renunication of the executorship by George T. Scott at the time the deed was made to the appellant, nor until after this proceeding was commenced.
    Under authority of Heron v. Hoffner et al., 3 Rawle 393, the court below properly ruled that the renunciation of George T. Scott could not validate the deed already executed by his co-executor.

      Alex. Wilson, for appellee.
    Authority is given to invest the property, not only in business, but in any other way. If this does not confer authority upon his son to sell, then, indeed, is the authority to invest the property otherwise an utterly barren one. If, because it was already invested in business, Charles could not sell so as to invest it in some other way, the discretion with which he is clothed by the will is taken away. The testator having given him power to invest otherwise “ as he may think best for the estate,” can it be that the aid of a court of equity is to be invoked to decree when and how he is to exercise this discretion? If so, the testator’s will is set aside. The question of power is one of intention. No particular form of words is necessary to confer a power to sell. It is enough if the intention appears in any part of the will.
    If Charles E. Beach, as executor, had power to make the sale to Neel, the court below was right in refusing the relief prayed for. We submit that Mr. Scott’s renunciation in writing was not necessary, but, if' it should be held otherwise, then, that it having been filed befbre any attempt was made to enforce the payment of the purchase-money judgment, the relief prayed, for was properly refused. Was a renunciation in writing necessary? An examination of the Acts of Assembly in relation to powers conferred by will upon executors, shows that the acting executor may exercise the powers conferred upon all, where the others either resign, refuse or renounce. A renunciation in writing is not necessarily the best evidence that an executor named in the will declines to act. A failure to appear in answer to a citation would be just as conclusive. The most that can be claimed for a renunciation in writing is that it is evidence of the fact. Any other satisfactory evidence is just as good. The refusal of one named as executor to. assume the duties of the trust, is just as effectual to confer the whole power upon the one who takes out the letters testamentary, as if the others had filed a formal written renunciation. But if this court should hold that Mr. Scott’s renunciation in writing was necessary, we submit that the one filed of record April 17 th 1877, before proceedings were commenced to collect the purchase-money judgment, was sufficient.
    If, as was claimed by the defendant, Charles E. Beach, the acting executor, had no power to make the sale because the renunciation of Mr. Scott had not been filed at the date of the contract of April 18th 1876, and that the alleged imperfection in the title is removed, the payment of the purchase-money should no longer be withheld.
   Mr. Justice Trunkey

delivered the opinion of the court, January 5th 1879.

Whether the 5th paragraph in this will, considered by itself, gives Charles E. Beach power to sell and convey real estate need not be determined; for there is another paragraph which authorizes and empowers the “ executors, Charles E. Beach and George F. Scott, or either of them surviving, to make, sign, seal, deliver and acknowledge any deed or deeds, or any other writing that may be necessary to carry out the intent and meaning of” the will. To ascertain the intention of any clause the whole will must be taken into view, especially the parts touching the same point. The fifth and sixth items together are reconcilable and consistent. By the former, in case of sickness or other inability of Charles to provide for himself and family, he is at liberty to use whatever may be necessary for that purpose; and he may invest the property in business, or otherwise, as he may think best; and, by the latter, the executors are authorized to seal and deliver deeds, or other writings, that may be necessary to carry out the intent. The power intrusted to the executors is not a vain provision; nor is the one to Charles. It is required that the executors act in the conversion of real estate — this can only be done by them as trustees; and power is given to Charles, as an object of the testator’s bounty, to use .and invést property that is not permanent. If stress be put on the word invest, one of its senses is, “ to surround with or place in, a's property in business;” another, “to place so that it will be safe and yield a profit;” though it is commonly understood as giving money for some other property. It is not difficult to construe these provisions so both may have effect, and when that can be done the rule is, it shall be. Besides, it is reasonable that the testator should require the action of the executors for conversion of land, already a permanent investment for all the objects of his care, at the same time that he gave large power to his son for using and investing his property. The learned judge of the Common Pleas truly apprehended the main intention of the testator, which is, that all his estate shall eventually go to and be enjoyed by the children of his son Charles, excepting what may be necessary for specified uses. This also tends to show his purpose in placing the trust for sale and conveyance of his real estate in the executors. If both executors act, one alone cannot sell; if one acts, he is accountable and responsible as executor.

That all the executors, whose renunciation is not of record, must join in the conveyance was decided in Heron v. Hoffner, 8 Rawle 393, in an exhaustive opinion, which has been accepted law in this state for nearly half a century. It should not be overruled or explained away. By writing filed, or by citation from the register and due course of proceeding thereon, the renunciation will appear of record; and not so appearing, it ought not to be taken to exist. The present ease of adducing oral testimony to sustain or overthrow an alleged fact, should induce a rigid adherence to all the safeguards of titles to lands. •

The deed by Charles E. Beach to James Neel was by one of two executors, and therefore void. Scott’s subsequent renunciation does not 'ijjvalidate the void act of another man. The deed was not made by the proper persons in pursuance of the power and trust.When one acting for himself conveys land for which he has a defective title, and afterwafds acquires title, it shall vest in his grantee. An executor acts by virtue of a power to convey, and the power wanting, his act is a nullity. As the case stood, the judgment ought to have been opened.

It was urged, that the plaintiff can make title and is ready and willing to do so. Possibly he has not executed and tendered a conveyance, since the renunciation of Scott, because of the construction given to the will in the court below. • For this reason, the case will be sent back to be further proceeded in, to the end that if the plaintiff, within a reasonable time to be fixed by said court, shall file a deed for the defendant, which the court shall adjudge to be good and sufficient as an executor’s deed, under the power given to. the executors in said will, then the rule may be discharged; otherwise made absolute, in accordance with this opinion.

Decree reversed, at tne costs of appellees; and record to be remitted for further proceedings, as directed in the opinion filed.


author: Mr. Justice Gordon

text:
    Johnston versus Speer.
    1. A promissory note containing a provision to pay attorney’s commissions if collected by legal process although the amount to be so paid is left in blank in the note, is not negotiable.
    2. It is a necessary quality of negotiable paper that it should be simple, certain, unconditional; not subject to any contingency. A note with a part thus in blank does not meet these conditions, as the question what the parties meant by the blank is an open one, and might have to be settled by oral testimony.
    3. Woods v. North, 3 Norris 407, followed.
    November 20th 1879.
    Before Sharswood, C. J.,' Mercur, Gordon, Paxson and Trunkey JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Fayette county: Of October and November Term 1879, No. 318.
    Assumpsit by Levi Johnston against N. Q. Speer, on two notes, of. which the following is a copy :
    $583.48. Belle Vernon, Pa., Aug. 27, 1877.
    Ninety days after date we promise to pay to the order of N. Q. Speer five hundred and eighty-three 48-100 dollars, with interest from date, at the Banking House of S. F. Jones & Co., without defalcation or stay of execution, value received, and without any benefit whatever from any valuation, appraisement or relief laws, and with-per cent, attorney’s commission if collected ly legal process.

    L. M. & W. F. Speer.
    These notes were endorsed by N. Q. Speer to the plaintiff, Levi Johnston, and regularly protested, at maturity for non-payment. On the trial, the defence was, that the notes were not negotiable, because of the words, “with-per cent, attorney’s commission, if collected by legal process.” The court, Willson, P. J., held that the notes were not negotiable, and that, the plaintiff was not entitled to recover against N. Q. Speer in this- suit; and that the verdict must be for defendant.
    Johnston took this writ and alleged, that the court erred in this instruction.

      D. Kaine for plaintiff in error.
    In Woods v. North et al., 3 Norris 407, this court decided that a note containing this clause, “ and five per cent, collection fee if not paid when due,” was not negotiable, for the reason that it. rendered the kmount to be paid uncertain. In that case, the five per cent, was included in the note. In the case now in hand it is in blank. Could a court and jury put in five per cent., or any other sum ? Is there any principle anywhere by which this could be done, without the consent of all the parties to the notes? If this could not be done, then these notes are negotiable, and the court below were wrong in directing judgment for the defendant: Daly v. Maitland, 7 Norris 384.

      W. Play ford, for defendant in error.
   Mr. Justice Gordon

delivered the opinion of the court, January 5th 1880.

If there is anything positively settled with reference to an agreement, in a bond, mortgage or note, for the payment of a fixed sum as attorney’s commissions, it is that the sum so fixed belongs to the payee or mortgagee as a compensation for the expenses and trouble he may incur in the collection of the claim. It does not belong to. the attorney who collects such claim, and it is not part of the costs of the case: Faulkner v. Wilson, 3 W. N. C. 339.

In Robinson v. Loomis, 1 P. F. Smith 78, it was held that such an agreement could not be regarded as a penalty, but as an agreed; compensation for expenses incurred by the mortgagee in consequence of the default of the mortgagor. According to this doctrine, the stipulation for attorney’s commissions would amount to air agreement for stipulated damages, over which the courts would have no control, as, in such case, the agreement of the parties would be the law of the case: Westerman v. Means, 2 P. F. Smith 97.

Following this rule, the agreement, in this case, for blank attorney’s commissions, amounts to nothing, for the blank could be filled only by the subsequent agreement of the parties, and until so filled it would have no force whatever.

But in Daly v. Maitland, 7 Norris 384, a somewhat different doctrine is held; for Mr. Justice Sharswood, in delivering the opinion in that case, says : “ This principle of liquidated damages is not applicable, however, to a contract for a loan of money; at least, such stipulation is subject to the control of courts of equity.” The effect of this decision is to give the agreement for commissions the character of a penalty, or of a stipulation that damages shall not exceed a certain amount. If we adopt this rule, then a stipulation to pay attorneys’ commissions would be equivalent to a contract to pay damages, — reasonable damages, or such damages, as a court, at its discretion, might fix.

However this may be,' there is one thing about which we feel little doubt: that is, that uncertain stipulations of this kind ought to have no place in negotiable paper. As was said in Woods v. North, 3 Norris 407, “ It is a necessary quality of negotiable paper that it should be simple, certain, unconditional; not subject to any contingency.” It is certain that the note in suit does not meet the conditions above prescribed, for in any event, the question what the parties meant by the blank is an open one, and may have to be settled by oral testimony.

Judgment affirmed.


author: Per Curiam.

text:
    Patterson & Co. versus The Pennsylvania Reform School.
    The Pennsylvania Reform School is a public institution and the buildings thereof are not the subject of a mechanic’s lien.
    November 20th 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Washington county: Of October and November Term 1879, No. 266.
    Scire facias sur mechanics’ lien, issued by David L. Patterson and Matthew G. Clark, partners as D. L. Patterson & Co., against the Pennsylvania Reform School, owners, and John, George and William G. Frazier, partners as Frazier Brothers, contractors.
    The plaintiffs, on June 2d 1876, filed a mechanic’s lien for $3204.70 against the Pennsylvania Reform School, owners, and Frazer Brothers, contractors, for lumber furnished the contractors in the erection of the new buildings at Morganza. At the date of the filing of this lien the full contract price for the erection of said buildings had been paid.
    On December 30th 1876, a scire facias was issued upon this lien and service had upon the defendant corporation alone. To this action a special plea was filed by the Reform ‘School, setting out its incorporation under and by virtue of an act of the legislature entitled “An act to incorporate an association for the establishment of a House of Refuge of Western Pennsylvania,” approved April 22d 1850, and its several supplements, and that its buildings are used solely for public purposes.

      Upon the trial, the Act of Assembly incorporating the said institution, with its several supplements, and the amendment to its charter under decree of the court of Allegheny county, and all Acts of Assembly making appropriation thereto, were considered as in evidence. It was also shown that the said school was solely maintained, and its teachers and officers paid by annual appropriations made by the legislature, and its property purchased and buildings erected mainly, if not wholly, from moneys appropriated for that purpose by the state,- the appropriations so made since 1872 amounting to over $700,000.
    At the trial the defendant submitted the following points, all of which the court refused:
    1. That the Pennsylvania Reform School is a public corporation, created and maintained by the state for public purposes only, and its buildings and property are not subject to a mechanic’s lien.
    2. That the buildings and property of the school are held by this corporation for the charitable and public purposes, trusts and uses specified in the Act of Assembly incorporating it, and cannot be sold, conveyed or encumbered, except under the authority of an act of the legislature, or a decree of the court duly obtained for that purpose.
    3. That under all the evidence adduced in this case, the verdict of the jury should be for the defendant.
    A verdict was taken pro forma for the plaintiffs, subject to the opinion of the court upon the question of law reserved as to the liability of the defendant corporation to a mechanics’ lien; and on the 19th of July 1879, judgment was entered upon the point reserved in favor of the defendant non obstante veredicto, which was the error alleged.
    The Reform School was originally incorporated under and by virtue of an act of the legislature entitled, “ An act to incorporate an association for- the establishment of a House of Refuge for Western Pennsylvania,”-its object and purpose being the care and guardianship of infants under the age of twenty-one years, committed to its custody by aldermen and justices of the peace for incorrigible or vicious conduct, or by the courts of Oyer and Terminer or Quarter Sessions of any county within the Western District, upon conviction of any criminal offence. The judges of the courts of Allegheny county are made its legal visitors, and are to examine and pass upon all commitments made by aldermen and justices, with power to discharge any who may be improperly committed. The managers are required to report annually to the legislature the number of children received, the disposition made of them, the receipts and expenditures, and all other facts connected with the management of the institution, and the legislature reserve the right to alter, amend or repeal the act of incorporation.
    The children received under commitments of any court within tbe Western District of Pennsylvania, are clothed, maintained and instructed at the expense of the county from which they came, and their accounts are kept in the same manner as accounts of convicts in the penitentiaries. Supplementary acts have been passed at different times, but the object and purpose of the institution remain unchanged.

      Braden Miller and M. O. Aeheson, for plaintiffs in error.
    — The Act of 1834, Purd. Dig. 295, pi. 11-12, provided a remedy by mandamus against counties and townships, and the same remedy was extended to cities and boroughs by subsequents acts.
    The Act of 1836 provides for sequestration as a remedy against any corporation not being a county, township, or other public corporate body.
    The Act of April 7th 1870, Purd. Dig. 291, pi. 52, changes the remedy against the latter class of corporations, and provides for sales, as in other cases. The only exception to the provisions of the Act of 1870 is that class of public corporations subject to writs of mandamus. If the plaintiffs had furnished their materials directly to the corporation before the Act of 1870, would they not have had a remedy by sequestration ? If they obtained judgment after the Act of 1870, could they not have issued a writ of fieri facias ? If they could not, the corporation could contract debts and utterly refuse to pay them, because there would be no legal method of enforcing the claim.
    If the corporation could be sued, judgment obtained and execution could issue on a contract, then a mechanic’s lien will bind the buildings of the corporation, under the reasoning in Foster v. Fowler, 10 P. F. Smith 27, “ that where there can be no. execution there can be no action;” and in Church v. Allison, 10 Barr 417, that if mandamus was not the specified remedy against a county, the word “ building” in the mechanics’ lien law would embrace the court-house.

      John W. & A. Donnan, for defendants in error.
    The buildings of the defendant corporation are exempt from levy and execution on grounds of public policy: Wilson v. The Commissioners, 7 W. & S. 197; Williams v. The Controller, 6 Harris 275.
    If a court-house or school-house is exempt .from lien on grounds of public convenience and necessity, much more then should the buildings of this corporation be exempt. In the protection of the. one only a small part of .the public are interested, but in the other the .whole Western District of Pennsylvania has a direct interest. There are at this time under the care of the Pennsylvania Reform School over three hundred children, committed to its custody by courts and justices of the peace, and to sustain this lien this court must be ready to say that the property and buildings in which they are now confined may be sold at sheriff’s sale, and, as a necessary consequence, that a purchaser can, by usual proceedings, obtain possession.
    There can be no lien, for there is no remedy provided by which execution can be had to enforce it. Both the Acts of June 16th 1836 and of 1870, have reference solely to corporations having franchises and privileges from which they derive a profit or income for the individual benefit of its members. The Reform School is not of this character. It has no capital stock, no provision for making dividends; has no rents, issues, profits, tolls or receipts from any source. The funds necessary to carry on its work were originally derived from public and private charity, and are now furnished wholly by the state. No private advantage or emolument accrues to the corporation or its members in any way, as in banking, railroad or turnpike companies, and its managers conduct its affairs without any compensation or right to receive compensation. As originally, incorporated it was a great public charity. It held and owned no property, except such as was necessary for the proper conduct of its work, and had no privileges or franchises which could be seized by writ of sequestration.
   The judgment of the Supreme Court was entered November 28th 1879,

Per Curiam.

By an Act of Assembly of April 22d 1850, an an association was incorporated for the establishment of a House of Refuge for Western Pennsylvania. They were authorized to receive into their care and guardianship infants under the age of twenty-one years, committed by a magistrate for incorrigible or vicious conduct, or who shall be in the judgment of a court of criminal jurisdiction fit subjects for the House. Fees are established by a subsequent act to be paid by the proper county. The name was afterwards changed to the Pennsylvania Reform School. The question is, can a mechanic’s claim be filed against the building occupied by the school? If it can, a levari facias may be issued, the building may be sold and the inmates let loose. We think that it accords with all our decisions to hold that an institution of this character is a public institution, though under the control of a corporation, yet subject to visitation by the legislature. It is a public corporate body, and cannot be proceeded against by levari facias. No other writ could be issued under proceedings upon a mechanic’s claim, and it is unnecessary to inquire what the proper remedy of the plaintiffs would be.

Judgment affirmed,


author: Mr. Justice Mercur

text:
    Stephens versus Strosnider.
    1. A. purchased land by articles of agreement from B. C., by subsequent articles of agreement, purchased the same land from B., and brought an action therefor and recovered. The day after he recovered_ possession he brought an action for mesne profits. Held, that he was entitled to mesne profits from the commencement of the ejectment.
    2. In contemplation of law on a general verdict in ejectment, all questions pertinent to the contract on which recovery was sought, including all questions of payment, tender and readiness -and willingness to pay', are passed upon and decided.
    3. The fact that one or two writs of error to the judgment in ejectment had been sued out by the defendant after the period fbr review had expired and were still pending, created no bar to the recovery of mesne profits. If the writs had been procured in time they might have been sufficient cause to postpone the action for damages until a decision was had on them, but they would have been insufficient to defeat a recovery.
    November 21st 1879.
    Before Sharswood, C. J., Mercur, Gordon, PAXsoN'and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Error to the Court of Common Pleas of Gfreene county: Of October and November Term 1879, No. 188.
    Trespass vi et a/rmis by Maria Jane Strosnider and Ida M., Harriet and John Henry Strosnider, by their guardian, James P. Cos-gray, against Washington Stephens, for mesne profits.
    On April 13th 1871, John A. Strosnider purchased from Whlliam Nixon, by articles of agreement, 100 acres of land in Greene county for $400, of which sum, $200 were to be paid April 1st 1872, when possession was to be given, and $200 without interest on April 1st 1873. On April 1st 1872 Strosnider went to the house on the lands where Nixon had lived, with $200 in legal tender money, to pay the instalment due on that day, but found the premises in possession of one Jones, Nixon having removed to an adjoining county. Jones was the tenant of Stephens, who claimed to have purchased from Nixon by virtue of articles of agreement dated February 20th 1870. On April 2d 1872, Strosnider brought ejectment for the premises. Pending the suit he died, and his children, the plaintiffs, were substituted in his stead. On April 1st 1873, the executor of the decedent went to the house on the premises, to pay the instalment of $200 due on that day. On the trial of the cause, the plaintiffs paid into court the $400, the full consideration for the land under the articles of agreement, and the jury returned a verdict in their favor for the land described in the writ, with six cents damages and costs. On January 25th 1875, judgment was entered on this verdict, and on March 17th following, Stephens took out a writ of error to this court. This writ was non-prossed, and on July 12th 1877 an alias writ of error was filed, and on April 9th 1839 still another writ of error. A writ of habere facias issued and the plaintiffs were given possession of the premises on June 3d 1877-, and on June 6th 1877, they brought this action for mesne profits.
    At the trial before Willson, P. J., the plaintiffs offered evidence to show the payment or tender of the consideration-money mentioned in the articles of agreement, which the court, under objection, admitted.
    The defendant submitted the following points, to which are appended the answers of the court:
    1. That the judgment and all proceedings had in this court in the ejectment case at April term 1872, upon which the present action is based, having been removed into the Supreme Court, by writ of error filed, and the same not having been heard or determined by that court, this suit cannot now be maintained.
    Ans. “ Refused.”
    2. That the verdict and judgment in the ejectment at April term 1872, being in effect, upon condition that the plaintiffs pay to the defendant the sum of $400, the plaintiffs cannot now recover from the same defendant in an action of trespass for the mesne profits of the land.
    Ans. “ Refused. If the jury find that Strosnider had tendered the purchase-money coming to Nixon, according to the article of agreement between Nixon and Strosnider, and that said tender had been kept up until, said money was paid into court, then the plaintiffs are entitled to recover from the date of the bringing of the action of ejectment; but if said tender was not made and kept up, then the plaintiffs can only recover from the date of the verdict in said action.”
    3. That the plaintiffs cannot recover for the mesne profits of the land prior to October 22d 1874, when the record at April term 1872, shows that the plaintiffs paid into court for the defendant, the sum of $400.
    Ans. “ This is correct, unless a tender was made and kept up, as stated in answer to 2d point.”
    4. That under all the evidence in the case, the plaintiffs are not entitled to recover.
    Ans. “ Refused.”
    The verdict was for plaintiffs for $472, and after judgment thereon, defendant took this writ and alleged, that the court erred in the admission of the evidence above mentioned, and in the answers to defendant’s points.

      P. A. Knox, for plaintiff in error.

      Wyley, Buchanan Walton, for defendants in error.
   Mr. Justice Mercur

delivered the opinion of the court, January 5th 1880.

This was an action of trespass for mesne profits by the defendants in error. On the 2d April 1872, they brought ejectment against the plaintiff in error, for the lands from which the profits are now claimed, and recovered a verdict therefor on the 24th October 1874. Judgment was entered thereon. After possession delivered to the defendant in error, on writ of habere facias possessionem, this action of trespass was brought.

It is a well-settled rule of law that a verdict and judgment in ejectment are conclusive of the right of the plaintiff therein, to mesne profits from the time of the commencement of the suit until the judgment: Osbourn v. Osbourn, 11 S. & R. 55 ; Huston v. Wickersham, 2 W. & S. 308 ; Lane v. Harrold, 22 P. F. Smith 267; Kuhns et al. v. Bowman, 10 Norris 504.

A careful examination of the evidence in the present case shows that no claim was made for any damages sustained prior to the commencement of the action of ejectment. No evidence was given tending to show that in the trial of the ejectment, the plaintiff in error accounted for or was charged with any rents and profits so as to bring this case within the equitable principle of Zimmerman v. Eshback, 3 Harris 417. On the contrary, it appears the defendants in error paid into court the full amount of the purchase-money which they had agreed to pay. It was paid in on the day the case was called for trial. Two days thereafter a verdict was rendered for the defendants in error “for the land described in the writ and six cents damages and costs.” The record given in evidence does not show that any condition was mentioned in the verdict or in the judgment entered thereon. It was essentially a general verdict. Its merits are not now before us for review. We cannot inquire whether that judgment was right or wrong. It has been acquiesced in until the time for review is past. On that trial all questions were pertinent in regard to the contract on which the recovery was sought, including all questions of payment, of tender, and of readiness and willingness to pay. In contemplation of law, they were then passed upon and decided.’ No evidence was given or offered to rebut that presumption.

In view of the fact that in this case the defendants in error claimed damages only for the time the ejectment was pending, we think all the evidence relating to tender of payment on the contract was irrelevant, but its admission worked no injury to the plaintiff in error. The rights of the parties in contention here started with the issuing of the writ in ejectment. The judgment in that case established the right and fixed the time for which the defendants in error recovered damages here.

The fact that one or two writs of error to the judgment in ejectment had been sued out by the plaintiff in error, and were still pending, created no bar against this recovery for damages. If they had been procured in time, it may have been a sufficient cause for postponing the trial of this suit for damages until a decision was had on them ; but they would have been insufficient to defeat a recovery. In fact, however, the record shows they were sued out more than two years after the judgment. The right to have the judgment reviewed was then barred before the writs issued. ' One has since been non-prossed and the other quashed. Under all the facts we see no sufficient cause for disturbing the judgment.

Judgment affirmed.


author: Mr. Justice Paxson

text:
    Kerr's Appeal.
    1. A judgment entered on a bond conditioned that the obligor will pay to the obligee the sum of all notes, checks, drafts and obligations of every kind or nature which B. has incurred or assumed, or may hereafter incur or assume, to a certain bank, is a lien for future advances as against intervening encumbrances only from the date of such future advances, and not from the date of the judgment.
    2. The Bank of Montgomery’s Appeal, 12 Casey 120, followed.
    November 21st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Appeal from the Court of Common Pleas of Butler county: Of October and November Term 1879, No. 75.
    Appeal of J. P. Kerr from the decree of the court confirming the report of the auditor appointed to distribute the proceeds of the sale of the real estate of David Armstrong.
    The auditor found, inter alia, the following facts: David Armstrong’s farm of 114 acres in Butler county, was sold by the sheriff January 4th 1878, under a judgment in favor of Catharine C. Dewolf, for use. The amount realized was $2000, and an auditor was appointed to distribute the same.
    ' On February 11th 1875, a judgment of John T. Bard, for use of the Centreville Savings Bank, was entered against W. O. Brackenridge and David Armstrong for $1000, interest, costs, &c. On February 11th 1875, a judgment of J. P. Kerr was entered against W. O. Brackenridge, George Maxwell and David Armstrong for $12,000, and on February 12th 1875, the executors of Samuel Braham, deceased, entered judgment against W. O. Brackenridge and David Armstrong for $2500, interest and costs.
    As the Dewolf judgment was not revived in time to continue its former lien, and not until after the entry of the three judgments last above mentioned, nothing was claimed on it by Mr. Bard and the plaintiffs in these three judgments, each.claimed the fund or so much thereof as was necessary to satisfy their claims. It was, arranged by consent of all parties that the auditor should first allow in full the judgment of Bard for use, entered in 1875.

      Testimony was adduced by J. P. Kerr to show on what his judgment for $12,000 was based, and Kerr testified that the judgment was entered on a bond he took from Brackenridge, signed by W. 0. Brackenridge, David Armstrong and George Maxwell to indemnify him for endorsements for Brackenridge in the First National Bank of Mercer, Pennsylvania. This bond contained the following recital:
    “The condition of this obligation is such that if the above-bounden W. 0. Brackenridge, his heirs, executors or administrators or any of them, shall and do well- and truly pay, or cause to be paid unto the above-named J. P. Kerr, his executors, administrators or assigns, the just and full sum of all the notes, checks, drafts and obligations of every kind or nature which said J. P, Kerr has incurred or assumed, or may hereafter incur or assume, to the First National Bank of Mercer, Pennsylvania, for the said W. 0. Brackenridge, including all the liabilities and obligations of said Brackenridge to said bank which said J. P. Kerr is to assume,.in consideration of this bond, and shall for ever keep said J. P. Kerr free and clear of all costs, trouble and expenses in regard to said liabilities — without fraud or further delay — then this obligation, to be void and of none effect; otherwise to remain in full force and virtue.”
    Kerr offered in evidence before the auditor the exemplification of the record from Mercer county, showing a judgment at August Term 1877, in favor of the .first National Bank of Mercer against W. 0. Brackenridge and J. P. Kerr, bail, for $362.95, judgment by confession on note with warrant of attorney, dated February 24th 1876. Also, two notes dated October 3d 1876, one for $1118.33 and the other for $1875.87, and it was admitted that these three items made up the full sum for which Kerr claimed to hold the judgment for $12,000, entered February 11th 1875. It was proven by the cashier of the bank, a witness called by Kerr, that the note for which the Mercer county judgment was entered was the original and only one in the transaction. The same witness testified that the $1118.33 note originated prior to August 1874, with George Maxwell as principal and W. 0. Brackenridge as bail, and was renewed from, time to time, and on March 24th 1875, Kerr became the endorser to the bank.
    The cashier also testified that the note for $231.90, which was included in the $1875.87 note was endorsed by Brackenridge and Kerr and discounted by the bank on March 9th 1876. That the two other items comprised in this $1875.87 notes were drafts $1000, $500 drawn on Reems Brothers, Brooklyn, New York, endorsed by Kerr and discounted by the bank in 1874 — one in August and the other in September. These drafts were renewed from time to time in the same shape and were sometimes protested for non-payment, but" were carried in the bank until June 7th 1875, when they were continued by two drafts of $750 each, with the same parties, drawers, endorsers and acceptors, and payable to the bank in Mercer. This paper was in this shape carried by the bank until December 6th 1875, when one $750 draft was “continued ” by a note directly to the bank and signed by Brackenridge and Kerr, and Reems Brothers were dropped out and the draft given up by the bank to Brackenridge. Then on. February 4th 1876, the other $750 went through a similar process and Reems Brothers were dropped out of it, the bank taking one note for $1500 to cover both noté and draft. On May 16th 1876, this $1500, signed by Brackenridge and Kerr and the $231.90 noté before referred to, were continued by one note, the one in evidence, for'$1875.87.
    It was contended that the Kerr bond for $12,000, being indemnity for future as well as present advancements or endorsements of Kerr for Brackenridge, and judgment on it being entered before the Braham judgment, it was entitled to priority, notwithstanding the fact that some of endorsements were subsequent to the entry of the Braham judgment. The auditor held that this was not the law and reported a distribution, first, to the judgment of Bard, for use, and second, to Braham’s judgment. Exceptions were filed to this report which the court dismissed and confirmed the report. From this decree Kerr took this appeal and alleged that the court erred:
    1. In confirming the auditor’s report. 2. In not appropriating the whole fund to. the judgments of Kerr and Bard pro rata on their respective judgments. 3. In not appropriating sufficient of the funds to pay on the judgment of Kerr the Reems Brothers’ drafts and interest embraced in the note of Brackenridge, and Kerr as bail, to the First National Bank of Mercer, calling for $1875.87, dated October 3d 1877.

      Thompson & Scott, McCandless and Griffith $ Son, for appellant.
    The judgment of the appellant was the first entered, and first lien upon the land sold. That this debt, which originated in the Reems drafts, one of $1000 and one $500, existed at the time the Braham judgment was entered, on 12th February 1875, is not denied and is found as a fact by the auditor; and the Kerr judgment should not have been postponed to the Braham judgment, to the extent at least of the Reems drafts and interest on them, which is now a part of the judgment note of the bank of Brackenridge and Kerr for $1875.87. A judgment or mortgage taken to secure the payment of an existing debt,, and debts and liabilities to be created in future, has been held to be good and valid by numerous decisions: Lyle v. Ducomb, 5 Binn. 585; 4 Kent Com. 175, and the cases therein referred to; Ter Hoven v. Kerns, 2 Barr 96.
    The cashier testifies, that the two Reems drafts were discounted and owned by the bank, with Kerr as endorser, months before the entry of the Braham judgment; and the auditor so found, and that they entered into and made up the greater part of the $1875.87 judgment note of the bank against Brackenridge and Kerr. If the security now held are notes or securities given for the same debt they are- renewals: Appeal of the Bank of Commerce, 8 Wright 428.
    A continuing loan of the same credit by the issue of new notes from time to time, would be within the terms of the bond, and such notes would be secured by it: Gault v. McGrath, 8 Casey 392.
    In the cases relied on by- ajppellant, each case expressly provided for renewals or contained no clause forbidding renewals; and in all this class of cases it becomes a question whether the present debt is a renewal of a debt existing at the time of the entry of the subsequent judgment or mortgage, and this is a fact found in our favor by the auditor: Gault v. McGrath, supra; Bank of Montgomery’s Appeal, 12 Casey 170; Bank of Commerce’s Appeal, supra.

      T. C. Campbell, for appellees.
    Kerr was under no obligation after the date of this bond, to incur or assume any liability for Brackenridge, and, if he did so, the undertaking upon his part was purely voluntary. Such being the case, he was bound to take notice of junior and intervening recorded encumbrances, in the same manner as if he were about to accept of a new and independent liability from the party, having no reference whatever to any prior encumbrance : Ter Hoven v. Kerns, supra; Bank of Montgomery’s Appeal, supra.

    Cases in Pennsylvania, involving the question in this case, arising under judgments or mortgages given to secure future advances or to secure endorsers, may be divided into two classes; the first where the bond or mortgage provided for renewals, the second where it did not. In the first class are Gault v. McGrath, supra; Appeal of the First National Bank of Mt. Pleasant, 1 Norris 488. In the second, The Bank of Montgomery’s Appeal, supra ; Appeal of the Bank of Commerce, supra; McClure v. Roman, 2 P. F. Smith 458; Ayres v. Wattson, 7 Id. 360. There having been no provision made in the bond to Kerr, for renewals, this case would fall in the second class of cases.
    ■ There is no case where it is held that a renewal, where renewals are not provided for in the bond or the mortgage, would relate back to the original debt. A mortgage on land was given by one to secure the payment of notes given by another, “ on the days they respectively mature and become due or payable.” When the notes fell due, they were taken up and others given to the mortgagees. Meld, that the mortgage, in • law as well as in equity, was not a security for the renewal notes: Ayres v. Wattson, supra.

   Mr. Justice Paxson

delivered the opinion of the court, January 5th 1880.

This was a question of distribution. The appellant held a judgment of $12,000 against David Armstrong, whose real estate had been sold by the sheriff and the proceeds thereof paid into court. The judgment was entered February 11th 1875, and was given to indemnify the appellant for all endorsements, liabilities and obligations which W. O. Brackenridge, one of the obligors, had then assumed, or might thereafter assume, to the First National Bank of Mercer, Pennsylvania, on the same day a judgment was entered against said Armstrong in favor of John T. Bard for $1000. On the next day, February 22d, a judgment was entered against the same defendant in favor of the executors of Samuel Braham, deceased, for the sum of $2500.

The judgments of appellant and John T. Bard having been entered upon the same day, would, so far as their position on the record is concerned, be entitled to come in upon the fund pro rata. The auditor finds as a fact, however, that the parties when before him agreed, that the bank judgment should have priority. No agreement in writing to that effect was made and attached to the report, as it should have been, and the agreement itself is denied by the counsel for the appellant. The view which we take of the case dispenses with a discussion of this question.

The right of the appellant to come in upon the fund is resisted upon the ground that the notes of Brackenridge discounted by the bank upon which the appellant is liable, were made subsequent to the entry of the Braham judgment-, and were therefore not protected by the appellant’s cautionary judgment.

It is clear by the condition of the bond upon which said judgment was entered, that the endorsements of the appellant were voluntary. He was under ho duty or agreement to make future endoi’sements, and there was no stipulation in the bond that it should cover renewals.

The only note for which it was contended the appellant was entitled to claim under his judgment, was anote of W. O. Bracken-ridge, with the appellant as bail, dated October 3d 1876, for the sum of $1875.87 and discounted by the First National Bank of Mercer. As this note was dated long after the Braham judgment, it is manifest under all our authorities, it was not prima facie entitled to any part of the fund. It was claimed that the said note was but a renewal of former notes upon which the appellant was responsible; in other words, that said note was given for a debt existing at and prior to the entry of the Braham judgment. Upon this point the auditor has found, upon what we regard as sufficient evidence, that the note in controversy was intended to cover a note of $231.90, which originated March 7th 1876, and two drafts of Reems Brothers aggregating $1500. Tim claim for the $231.90 is out of the case, under the authority of the Bank of Montgomery’s Appeal, 12 Casey 170, in which it was held that “a mortgage given to secure the payment of notes, bills, &c., discounted, or thereafter to be discounted, for the mortgagors, and all their liabilities to the mortgagees of whatever kind that existed or might thereafter exist at any time, is a lien for future advances as against intervening encumbrances only from the date of such future advances and not from the date of the mortgage.” In regard to the drafts of Reems Brothers, the auditor finds the fact that they were fully paid. He says: “We feel compelled to say that when Braekenridge and Kerr gave to the bank their notes of December 6th 1875, and February 4th 1876, these were in payment of the debt they owed as endorsees. They made a new contract entire, which ivas subsequent to the entry of Brahain’s judgment and must take subsequent.” No exception was made in the court below, nor was error assigned here to this finding of the master. It was held in the Appeal of The Bank of Commerce, 8 Wright 423, that “ evidence of the intention of the parties at the time of the discounts to consider the new notes as renewals of former notes preceding them in the series, is not admissible; for the question was one of fact whether or not they were renewals, and not what the parties intended or considered.” The auditor here has found the question of fact against the appellant, and it is conclusive.

The decree is affirmed and the appeal dismissed at the cost of the appellant.


text:
    Appeal of Bredin et al.
    1. When the public is not interested, the maxim ‘‘ Nemo allegans suam turpitudinem audiendus est" is in full force, and the law leaves the parties as they placed themselves.
    2. When a deed or contract is made for an illegal purpose, a defendant against whom it is sought to be enforced, may show the turpitude of both himself and the plain tiff, and a court of justice will refuse its aid to enforce a contract thus wrongfully entered into.
    3. Agreements founded on the suppression of criminal prosecutions are void, as they have a manifest tendency to subvert public justice. Stifling a prosecution of forgery comes within the rule that where the welfare of society and the vindication of the law are the chief objects, the defendant may give in evidence the illegality of the contract as a bar to a suit to enforce it; and this to prevent the evil which would be produced by enforcing the contract or allowing it to stand.
    4. A judgment confessed by warrant of attorney, in consideration of stifling a prosecution for forgery is void, and it was error for the court to refuse to open such judgment and permit the defendants to'show the illegal consideration, although they were parties thereto.

      November 21st 1879.
    Before Sharswood, C. J., Mercur, Gordon, Paxson and Trunkey, JJ. Sterrett and Green, JJ., absent.
    Appeal from the Court of Common Pleas of Butler county: Of October and November Term 1879, No. 96.
    Appeal of E. M. Bredin, Jr., and others, from a decree of the court refusing to open a judgment entered against them on a warrant of attorney, and to let them into a defence.
    A. W. McCullough and P. Dorsey were oil speculators and producers. In 1875, McCullough borrowed from Dorsey 1000 barrels of oil. As security therefor, he gave Dorsey a check on the Citizens’ Bank of East Brady for $2000, in which it was written, that the bank held 1000 barrels of oil as collateral for the c.heck. This check was not to be presented nor otherwise used during the continuance of the loan. The check was endorsed, “ Good, J. Y. Foster, cashier.” This indorsement and signature of Foster was alleged to have been forged by McCullough; and for this, Dorsey made an information against McCullough for forgery. McCullough was arrested, and indicted by the grand jury of Butler county, for forgery, in January 1878. A jury was empanelled, and a verdict of not guilty entered on the issue joined.
    The verdict was the result of an arrangement previously made by Dorsey, the prosecutor, and the appellant, the brother-in-law of McCullough, by which, in consideration of McCullough’s securing $2800 to Dorsey by anote, the latter agreed not to appear as a witness against McCullough, and to keep back all other witnesses, and thus insure a verdict in favor of McCullough. This was carried out. Neither Dorsey nor any other witness appeared to testify. Upon the rendition of the verdict, the note of the defendants, in pursuance of such arrangement, was handed over to Dorsey, who accepted it as the consideration for suppressing the prosecution.
    Dorsey entered judgment on the note, by virtue of the warrant of attorney, to September term 1878, and issued an execution thereon. The defendants therein then presented a petition to the court, setting out in detail the history of the transaction, alleging, that the giving- of the note was against the policy of the law, fraudulent and void, and asking the court to open the judgment, let them into a defence, &c. A rule was granted to show cause why the relief prayed for should not be granted, and depositions were taken by both parties.
    The court, Bredin, J., refused to open the judgment, in an opinion, inter alia, saying:
    “ The evidence-is, that McCullough gave to Dorsey, as collateral security for the loan of 1000 barrels of oil, a check on the East Brady Savings Bank for $2000, purporting to be certified as “good ” by J. Y. Foster, as cashier of said bank. The oil was not returned by McCullough, and the check went to protest. The bank refused to pay, alleging that the acceptance was 'a forgery, and that if genuine, it was beyond the power of the cashier. The latter position was sustained by the Supreme Court. Dorsey having then no recourse except on McCullough, who was insolvent, indicted him for forgery, evidently as a means towards securing the debt. Dorsey claimed that McCullough owed him about $2300; McCullough admits some $1400 or $1500; but the great fluctuations in the price of oil. and the difference it would make if the oil was estimated at the price when borrowed by McCullough, or at the price when Dorsey asked its return, give room for a considerable difference in the views of the creditor and debtor, without injuring the honesty of either. We have no evidence that Dorsey used the prosecution to extort from defendants a note for one dollar more than he believed to be honestly due him from McCullough, or that he used any fraud or misrepresentation in the matter. The defendants therefore must rest their application entirely on the grounds, that part of the consideration of the note on which judgment was confessed, was the settlement and stifling of the criminal prosecution, and that, being against public policy, renders the note void. If this was a suit on a note or bond, the defence could be set up, ‘A& turpi causa non oritus actio.' But here the defendants are the actors, they apply to open a judgment and restrain an execution. In this attempt they are met by the maxims: ‘ In pari delicto melior est conditio possidentis,’ and ‘Nemo allegans suam twrpitudinem audiendus est.’ There are cases, indeed (such as attempts to poison the fountains of justice, and others), where the public interests demand the overthrow and exposure of the scheme, that the particeps criminis may be used for that purpose. But this is not such a case, and the agreement being executed not executory, defendants are without remedy. The practice which has grown up in this and other counties in the western part of this state, of making use of judgment notes in lieu of promissory notes, for vendue notes, for discount paper in bank, and. indeed for all ordinary business transactions,-must if such practice becomes general over the state, lead the courts or the legislature to relax the rules as to defences thereto. But as yet ‘ There is no difference in legal effect between a judgment confessed, and a judgment on a verdict of a jury Hopkins v. West, 2 Norris 109. A judgment is an executed contract. “ So long as a contract continues executory it may not only be impeached for fraud or mistake, but'any illegality which would be a defence at law, would in general be ground for cancellation in equity; as for instance, the illegality of contracts for gaming or smuggling, or aiding prosecution for compounding a felony or for paying usury. But a contract already executed, cannot be set aside as illegal or immoral, and nothing but fraud or palpable mistake is ground for rescinding an executed conveyance:" Nace v. Boyer, 6 Casey 110. See also Hershey v. Weiting, 14 Wright 245; Blystone v. Blystone, 1 P. F. Smith 375, and Steinbaker v. Wilson & Young, 1 Leg. Gazette R. 76. Rule discharged.”
    The defendants in the judgment then took this appeal and alleged, that the court erred in refusing to open the judgment.

      John M. Thompson and W. D. Brandon, for appellants.
    The court refused to open this judgment on the ground, that although entered on a warrant of attorney it’had the same effect as one entered on the verdict of a jury. We contend, it has not the same sanctity.
    The original consideration being illegal, forbidden by law, and against public policy, the note was void. Its collection by law would be a legal wrong. Entering judgment did not remove the taint, nor deprive the court of the power to prevent the commission of an outrage. The judgment thus entered continued under the control of the court, and as subject to its order as the note was. Filing the note simply made a record of what was before a private paper. A deed or mortgage recorded, is still under the power of the proper court, and upon sufficient cause shown, it can be reformed or destroyed as the justice of the case may require. Entering judgment on this note, was filing or recording it in the office of the prothonotary — nothing more. . When a judgment is opened on terms that the case be tried on its merits, it does not preclude the defendant from showing that the bond sued on is invalid: Bradley v. Commonwealth, 7 Casey 522; Cochran v. Eldridge, 13 Wright 365; Dorney v. Mertz, 8 Phila. 553. A contract which has for its object the performance of an act, which is prohibited by express statute, or the commission of which incurs a penalty, is as much illegal and void, as if the statute in express terms had declared it to be so: Territ v. Bartlett, 6 Wash. (Vt.) 148. A note given in consideration that the obligee shall stop a prosecution which he had instituted against the obligor for an alleged felony, and that he would not appear as a witness therein, is not binding: Swan v. Chandler & Philips, 8 B. Monroe 98. See also Ham et al. v. Smith, 6 Norris 63.

      John M. Cheer, for appellee.
    There is no difference in legal effect between a judgment confessed or for want of an appearance o- plea, and a judgment on the verdict of a jury: Hopkins v. West, 2 Norris 109.
    We have found no case parallel to this reported, the nearest approach being that of Ham et al. v. Smith, supra, but there is one very important distinction between the two cases. In the case of Ham et al. v. Smith, the judgment had been opened by the consent of parties. This certainly threw the action upon the plaintiff, and there gave the appellants the same defence they would have had, had the suit been brought upon a common note or bond, and the plaintiff must in that event prove his case as on a new trial.
    The settlement of a prosecution for assault and battery, is a valid consideration for a contract: Castner v. Cornell, 1 Luzerne Obs. 58; Bushworth v. Dwyer, 1 Phila. 26. The compounding of a prosecution for obtaining goods by false pretence is not forbidden by law, and a note given on such consideration is valid: Steinbaker v. Wilson, supra. The parties defending against the note, admit that they were as active in bringing about this settlement as Mr. Dorsey, and if any crime was committed, they are equally guilty. A note is given, a judgment confessed, an execution issued, a levy made, and the contract executed. Will the court now step in and save a party whose only defence is, as they themselves represent it, that they had done wrong?
   Mr. Justice Trunkey

delivered the opinion of the court January 5th 1880.

The maxim, “Nemo allegans suam turpitudinem audiendus est,” is good in its use, and the authority of a long line of decisions prevents its abuse. In Collins v. Blantern, 2 Wils. 341, a leading case, it was decided that illegality may be pleaded as a defence to an action on a bond, and so it has been held in England and this country ever since. The bond in that case was given as an indemnity for a note entered into by the obligee for the purpose of inducing a prosecutor of an indictment for perjury to withhold his evidence. After speaking of the transaction as one to gild over and conceal the truth, the court said, This is an agreement to stifle a prosecution for wilful and corrupt perjury, a crime most detrimental to the Commonwealth; for it is the duty of every man to prosecute, appear against and bring offenders of this sort to justice.” “ This is a contract to tempt a man to transgress the law, to that which was injurious to the community ; it is void by the common law, and the reason why the common law says such contracts are void is for the public good.” Had the defendant not been heard the court would have known nothing of the facts; they were not set out in the bond, the plaintiff was not compelled to show them in making out his case, and on the face of the bond he was entitled to recover; all that which proved it a void contract was shown by the defendant. So in the late case of Ham et al. v. Smith, 6 Norris 63, the corrupt, immoral and forbidden' contract appeared in the proofs adduced by the defendants; the plaintiff made his case by showing the note, the fair-looking fruit of the illegal bargain. Notwithstanding the maxim, it has been settled that when a contract or deed is made for an illegal purpose, a defendant against whom it is sought to be enforced, may show the turpitude of both himself and the plaintiff, and a court of justice will decline its aid to enforce a contract thus wrongfully entered into. The principle depends on the public good, not on the merit of the defendant, whose hand is as foul as the plaintiff’s. Public policy requires that he be heard, and if the contract be void, his relief is an incident. Swan v. Scott, 11 S. & R. 155, is no exception. There the suit was on a bond, given in satisfaction of an award of arbitrators, which had become a judgment; and the defendant proposed to go behind the judgment and show the illegal contract on which the award was obtained. Held, that he could not, and Duncan, J., remarked, “ The test, whether a demand connected with the illegal transaction is capable of being enforced at law is, whether the plaintiff requires the aid of the illegal transaction to establish his case.” It is manifest the judgment was conclusive, though obtained in a suit on an illegal contract, and the remark strictly fitted the facts in that case, without infringing on the rule. Wherever that test has been quoted and applied, it will be found there was a good consideration for the contract in suit before reaching back to the alleged illegal one.

Where the public is not interested, the maxim has its full force, and the law leaves the parties as they placed themselves. Obligors in an instrument under seal, made for the purpose of defrauding the obligee’s wife, cannot shield themselves by alleging their own fraud; for this does not belong to the class of contracts forbidden by statute or public policy: Evans v. Dravo, 12 Harris 62; Hendrickson v. Evans, 1 Casey 441. On like principle, voluntary conveyances and contracts made to defraud creditors, though void as to them, are good and binding between the immediate parties. These are avoided by the statute of 13 Elizabeth, for the benefit of creditors, but not' as to the parties: Hershey v. Weiting, 14 Wright 240; Blystone v. Blystone, 1 P. F. Smith 373. “ That a collusive contract binds the parties to it is a principle which commends itself no less to the moralist than to the jurist; for no dictate of duty calls on a judge to extricate a rogue from his own toils.” Stewart v. Kearney, 6 Watts 453. In all such cases the actor is met by the maxim, “ In pari delicto melior est conditio possidentis.”

Forgery, or the crimen falsi, is an infamous offence. It is classed with other infamous felonies and misdemeanors, the compounding of any of which is a misdemeanor punishable by fine and imprisonment: Act March 31st 1860, sect. 10, Pamph. L. 387. Under section 9 of the Criminal Procedure Act of 1860, Pamph. L. 432, no magistrate or court can lawfully permit a settlement of a prosecution for forgery, on satisfaction being made to the party complaining, for infamous crimes are excepted- from its operation. The legislature committed no such inconsistency as enacting two acts of the same date, one of which prohibits the settlement of forgery under a severe penalty, and the other authorizing it, if the complaining party acknowledges satisfaction.

Cheats by false pretences are among the cases authorized to be settled by the 9th section of the Criminal Procedure Act, and therefore, Steinbaker v. Wilson & Young, 1 Leg. Gaz. 76, has no application to the question now pending. And the settlement of eases within that section is not touched by the principles applicable to the compounding of an infamous crime.

Dorsey charged McCullough with forgery, and conducted the prosecution to his indictment and acquittal. After the indictment and before the acquittal, a bargain was struck, the judgment-note given, Dorsey’s claim against McCullough satisfied, and Dorsey was not to appear and testify in the forgery case. He saw the Commonwealth fail, for he did not answer to testify, though present. It cannot be doubted that the abandonment of the prosecution and failure to testify entered into the agreement. The note was given for the debt and for the acquittal — neither promise nor consideration is divisible. If any part of an indivisible promise, or any part of an indivisible consideration for a promise, is illegal, the whole is void: Filson v. Himes, 5 Barr 452.

Agreements founded upon the suppression of criminal prosecutions are void; they have a manifest tendency to subvert public justice: -1 Story Eq., sect. 294. It is the nature of the crime, not so much whether i't be felony or misdemeanor, which is to be considered. Many felonies are not so enormous as some misdemeanors. The law recognises this in their punishment. For instance, the maximum of imprisonment for one convicted of forgery is ten years, of larceny three. Stifling a prosecution for forgery, though an offence of same grade as compounding divers felonies, seems to be a graver offence than compounding some felonies. It comes within the rule, that where the welfare of society and the vindication of the law are the chief objects, the defendant may give in evidence the illegality of the contract as a bar to a suit to enforce it; and this to prevent the evil which would he produced by enforcing the contract or allowing it to stand. Shall these objects be thwarted, and the evil follow which the law designs to prevent, because of a judgment confessed by virtue of a warrant which is but a part of the criminal transaction ?

It was said by the present Chief Justice in Hopkins v. West, 2 Norris 109 : “ 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.” In Pennsylvania it has always been the right of a defendant in a judgment confessed by virtue of a warrant of attorney to petition that it be opened for cause. This right was so well respected by the courts that there was no occasion for legislation providing for appeal from refusal to open till a recent date. The entry of judgmerits, either by attorneys or prothonotaries, on judgment-notes, is very common. These though having the same effect as if on the verdict of a jury, while they stand, in fact, never were the results of adjudication. To hold that such a judgment entered on an immoral and illegal obligation, part of a transaction subversive of public interests, shall be deemed an executed contract, with absolute right in the plaintiff to judicial process for collection, would be shocking to every man’s sense of justice. The argument is that the judgment shall stand, for the plaintiff need only show the note, and the defendant, as actor, will not be heard alleging his own and the plaintiff’s turpitude in an application for opening the judgment. In one sense the plaintiff is an actor — he caused confession of judgment on the void instrument, and uses the process of the law to collect the money agreed to be paid for its violation. The reason of the rule which allows a defendant to plead and prove the illegality of a contract in bar of a suit upon it, demands that he be heard in an application to open a judgment so confessed. His rights are of secondary importance, and he is not heard for their vindication. It is the duty of the court, on proper showing, to open such a judgment, to the end that there may be a trial as if suit had been originally commenced on the note or other obligation on which the- judgment was entered. In this way the law may be vindicated and the interest of the Commonwealth conserved.

The order and decree discharging the rule to show cause • why judgment should not be opened, reversed, and now the said rule is made absolute; the record to be remitted for further proceedings. Appellees to pay costs of this appeal.