author: Gibson, C. J.

text:
    PHILIPS and others, executors of SIMON, deceased, against GRATZ, and others, administrators of GRATZ.
    An appeal lies from the Circuit, to the Supreme Court, on the refusal of the former to take off a non suit, entered by consent of plaintiff’s attorney, his objections to a continuance having been over-ruled, and the cause ordered on to trial.
    The conscientious scruples of a Jew to appear in court, and attend to the trial of his cause on Saturday, the Jewish Sabbath, is no ground for the continuance of his cause.
    On a tales de ci«amsia«iib»s, by-slanders only or those actually present in court, can be selected and returned as jurors.
    Appeal from the Circuit Court.
    This was an action of covenant pending in the Circuit Court, in the county of Lancaster. It came on for trial before Mr. Justice Kennedy, on Saturday, the 7th day of May, 1831. The counsel for the plaintiffs, moved a continuance of the cause, on the grounds that papers, without which they could not proceed, were at that time in possession of another jury who had retired to consider of their verdict, in a cause between the same parties: and on the deposition of Levi Philips, one of the plaintiffs, taken the same day in open court, stating “that he had scruples of conscience against appearing in court to-day, and attending to any secular business; and that he believes his presence and aid will be material in the progress of the cause.” The defendant’s counsel offered the ase of copies of the papers referred to, and insisted upon going on to trial. His honor over-ruled the objections of the plaintiff, and ordered on the cause.
    The cleric proceeded to call a jury, and three jurors only answering, the panel being exhausted, the defendant’s counsel prayed a tales de circumstantibus, which was awarded by the court; but there were not a sufficient number of by-standers in the. courthouse, to supply the tales; whereupon the plaintiff’s counsel objected to the sheriff’s summoning any person as a juror, who should not be found within the court-house; but the objection was overruled by the court, and the sheriff went out and brought in from different parts of the city, a competent number of jurors. The plaintiff’s counsel then, without offering any testimony, took a non suit; and a motion to take off the non suit being over-ruled, they took an appeal to the Supreme Court, ■

      Norris for the defendants,
    Now moved to quash the appeal, tie took a distinction between a non pros, which are the words used in the act of the 20th March, 1797, and a non suit, as taken by the plaintiffs’ counsel in this case. He referred to Virtue v. Patterson, 17. Serg.f' It aw le, 249- - ' .

      Champneys for the appellants,
    Contended the ease fell within the express provisions of the act referred to, and was sustained by the decision in Virtue v. Patterson. The motion to quash was over-ruled by the court.
    The errors assigned, upon which the appellants claimed to have the non suit taken off, were, 1st. That Levi Philips was the only' plaintiff attending to the preparation of the cause; and that he could not appear in court on Saturday, when the case was ordered on, from conscientious scruples, as stated in his affidavit, that day being his Sabbath, according to his religious belief; and that the cause could not be tried without his assistance. 2d. That the original papers, on which the action was brought, and others were then out with another jury, in a cause between the .same parties, that they could not be withdrawn, nor could they -proceed upon copies as one of the issues was in the plea of non est factum. 3d. That the jury was improperly selected. That upon the tales awarded, the sheriff was directed by the court, although the plaintiff’s counsel objected, to go out of the court-house to make the selection, and that he accordingly went out and made a selection of persons from different parts of the city.

      Champneys for the appellant,
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      Montgomery and Norris for the appellee,
    Denied that the rights of conscience, as contemplated in the constitution of the state, or of the United States, had been violated in this case. There was no coercion to change his faith, or to alter his'practice in pursuance of it. His religious observances have been in no way invaded. The law recognizes but one day in seven,' in which the community is exempted from secular affairs, but different sects and denominations may establish many more. And if the protection claimed in this case, was extended to all, we would not have a juridical day in the week. The faith and religious worship of individuals is protected, but the decision in this case, affected merely a civil right, in the performance of a civil duty.
    The point seems to have been settled in the cases referred to in 2 Dali., and in 11 Serg. & Rawle. But the plaintiff waived his objection in this case,-by actually coming into court, and being sworn to the affidavit exhibited. Having voluntarily attended to the case, so far as advanced his own interests, he could not refuse further to attend, so as to prejudice those of his opponents: at all events, his presence was not necessary. Every thing could have been done by attorney. The court .might have justly concluded the object was delay. On the 2d point, it was said, that the plea of non est factum, did not deny the execution of the paper, but was designed to bring into adjudication its legal operation: an offer was made to procure copies, and the original papers were subject to the control of the court, so that no injustice could have been done. As to the 3d exception, the object of the acts of assembly for selecting jurors, was to avoid collusion and fraud; but in cases where the powers of the sheriff are executed immediately, and under the control of the court, there is no danger of either. If the word “by-standers,” is confined to persons within the courthouse, the right would generally be without any practical use, for competent jurors could not often be had, or the friends of parties would frequently be taken, who were brought there by interested fe'elings, or by design. The argument ab inconvenienti, is particularly applicable. The language of the statute, Henry 8, chap. 65, in defining the persons to be selected, refers to those, “then present at the assizes.” The ground for selection is not narrowed down to the court-house floor; and by the letter and the spirit of the act of 17th March, 1795, 2 Penn. Law. Dali, edition, 262, the sheriff has his bailiwick, within which to make his selection. In 2 Tid. Frac. 783, the practice is said to be, to take the tales, from remaining jurors, belonging to other causes. The act of 1805, in directing them to be taken from ““by-standers,” was not designed to change the previous law; the term includes those round and about, as well as those present.

      Champneys in reply,
    Contended that the case in 3 Sefg. & Eawle, 50, sustained his view under the first point, and that our civil conduct, and social relations often grow out of our religious persuasions, and that the peculiar faith is violated, where the practices necessarily growing out of it, are disregarded. On the 2d point, they could not accept copies, which they had not compared, and which they did not know to be accurate. And under the plea of non est factum, they could not move without the original covenant. On the 3d point, he contended that the uniform practice had been, not to go out of the court-house, to search for “‘by-standers,” and that the words of the British statute, ““those present at the assizes, or nisiprins,” did not extend throughout the bailiwick, but clearly referred to persons then present. By-standers, in our act of assembly, distinctly designates persons standing around in the court-house, and not round the county. No process issues, and there is no mode of compelling any one absent to attend. Yet if summoned in presence of the court, they could be compelled to serve. The argument ah inconveniente, only applies in doubtful cases. This is a plain case, and under the ordinary practice, no difficulties occur.
   The opinion of the court was delivered by

Gibson, C. J.

The religious scruples of persons concerned with the administration of justice, will receive all the indulgence that is compatible with the business of government; and had circumstances permitted it, this cause would not have been ordered for trial on the Jewish Sabbath. But when a continuance for conscience3 sake, is claimed as a right, and at the expense of a term’s delay, the matter assumes a different aspect.

It never has been held except in a single instance, that the course of justice may be obstructed by any scruple or obligation whatever. The sacrifice that ensues from an opposition of conscientious (objection to the performance of a civil duty, ought, one would think, to be on. the part of him whose moral or religious idiosin-erasy, makes it necessary; else a denial of the lawfulness of capital punishment would exempt a witness from testifying to facts that might serve to convict a prisoner pf murder, or to say nothing of the- other functionaries'of the law, excuse the sheriff, for refusing to execute one capitally convicted. That is an exemption which none would pretend to claim; yet it would inevitably follow from the principle insisted on here. Indeed a more apposite instance of conflict betwixt religious obligation and social duty, can hardly.be imagined. Rightly considered, there are no duties half so sacred as those which the citizen owes to the laws. In the judicial investigation of facts, the secrets of no man will be wantonly exposed, nor will his principles be wantonly violated; but a respect for these must not be suffered to interfere with the operations of that organ of the government which has more immediately to'do with the protebtion of person and property: the safety of the citizen, and- the very existence of society require that it should not. That every other obligation shall yield to that of the laws, as to a superior moral force, is a tacit condition of membership in every society, whether lay or'secular, temporal or spiritual, because no citizen can lawfully hold communion with those who have associated on any other terms; and this ought, in all cases of collision, to be accounted a.sufficient dispensation to the conscience. I therefore entirely dissent from the opinion of the Mayor’s Court of Neto Yorle, in the case which has been cited. No one is more sensible ■ than I, of the benefit dei’ived by society from the offices of the Catholic clergy, or of the policy of protecting the secrets of auricular confession. But considerations of policy address themselves with .propriety to the legislature, and not to a magistrate whose course is prescribed not by discretion, but rules already established. On this subject, I expressed my sentiments somewhat more at large in Lesher. v. The Commonwealth, 17 Serg. & Rawle, 160, and I am for setting aside this non-suit, certainly not for any supposed interference with the rights of conscience.

As regards the remaining points, it is unnecessary to determine whether papers in the actual custody of a jury, retired to consider of its verdict, are sufficiently in the power of the party to enable him to go to trial safely in another action, because it seems clear, that tlje plaintiff was not bound to go before the jurors returned on the tales. Our act of assembly requires tales-men to be taken from the by-standers; and in this respect it is more explicit than the English statute, which directs them to be taken from the persons ^attending at the assizes. Yet the construction of the one, and the other, has never been so liberal as to include any but those actually present in court; arid hence perhaps it is, that a writ for a tales, which would seem necessary, were the delegated powers of the court to be exercised out of its immediate presence, is in fact never issued; and it is not easy to say how the sheriff could compel the attendance of persons picked up in the streets, without it. The practice of selection by the sheriff, except in this particular emergency, has been abolished by the legislature; but the old abuses, if any there were, would soon recur, were the power by a tales to be exercised in any other way than under the immediate supervision of the judges. Difficulties may sometimes occur, for want of by-standers;but it is safer to abide by a settled construction even at the expense of convenience, than to introduce a remedy at the expense of uniformity of practice. The cause is therefore to be restored to the trial list.

Rogbks, J. — Having been of counsel in the case, and Ross, J. not having heard the argument, took no part in the decision.

Non-suit set aside,,and the case remitted to the Circuit Court.


source: Caselaw Access Project

author: Hus TON, J.

license: Public Domain

text:
    STERRETT’S APPEAL.
    The Orphans5 Court, in the settlement of an administration account, are not bound by the technical rules of evidehce;for sitting1 as a Court of Chancery, they may re» ceive secondary evidence, and either decide on it, if necessary, or send the fact, intended to be established, to be decided by a jury.
    One executor, barely permitting a co-executor to receive money, where there are no grounds to suspect danger of losing it, does not make him liable therefor: but when one executor has money actually in his hands, and pays it over to the other, or when he actively assists to have it put into the hands of the other, he is generally liable.
    It is the duty of the Orphans’ Court, to allow to executors and administrators, in the settlement of their accounts, a credit for payments made to hefts or distributees. And herein of the manner in which such allowance should be made and stated.
    The allowance to executors and administrators for services in settling the estate must be regulated by all the circumstances attending it; and herein, as of what time such allowance should be made.
    "When an estate is so situated, that legal advice is proper to direct the course of the executors, the reasonable counsel-fees paid by them, are a just charge against the estate.
    When an executor presents an administration account to the Orphans’ Court, which exhibits a balance it) his favor; but which being referred to auditors, their report exhibited a balance against the accountant, he, and not the heirs, should be charged with the expense of such reference.
    Appeal from the Orphans’ Court of Mifflin county.
    This case was argued at June term, 1828, when it was reférred to auditors, with the following opinion of the court, which was delivered by

      Huston, J. — James Sterrett, in 1812, made his brothers, John Sterrett, Robert Sterrett, (and William McClure who renounced,) executors of his estate, and died soon after. Robert and John Sterrett, proved the will, and letters testamentary were granted to them. The estate, both real and personal, was large. In March, 1815, the eldest son cited the executors to settle their account, and this was followed by repeated citations, up to the autumn of 1816, when an account was filed, and passed by the register, but onits being presented to the Orphans’ Court for confirmation was rejected, as it would seem, because on the face of the account, large sums had come to the hands of the executors, and much money was due by them, yet no charge, or calculation of interest was made on those sums, nor any reason stated why interest had not been charged.— Soon after this, John Sterrett died. The matter rested several years. Robert Sterrett then filed an account, in which he undertook to distinguish the sums and parts of the administration of the estate, transacted by himself, and for which only he alleged he was answerable; and the part for which he alleged the representatives of John, whose estate was admitted to be insolvent, were liable. The Orphans’ Court made a decree, charging Robert with a large sum, from which this appeal was taken. Several exceptions were stated in writing to this decree, which were not mentioned in the argument, and which, therefore, I shall consider as abandoned, except those which I shall notice.
    The principal points discussed were
    1. Robert alleged that in 1814, he having received from two of the debtors of the estate sundry sums, viz: 804 dollars, and 100 he paid them over to his brother and co-executors, and in May, 1815, the further sums of 750 dollars, and 804 dollars. It appeared by entries made by John in his life-time, that he did receive from Robert, the three first sums, amounting to $904 in 1814, and $750 in 1815, but the receipt of the last sum of $804, was utterly denied, and the proof adduced was as follows: “A son of Robert Sterrett’s produced a paper, he stated that in 1820, or 1821, he got from the widow of John Sterrett, a paper in which, among other things, John charged himself with this disputed item of $804, as received from his brother and co-executor, Robert.

    The original paper in John Sterrett’s hand writing, and which was by him left with his father, the accountant and appellant, was lost, as appellant swore. The copy was objected to, but received by the Orphans’ Court; and rightly; for setting as a Court of Chancery, they were right in receiving it, and either deciding on it, if necessary in the case, or sending the fact to be decided by the jury. But in the view there taken, and here also, it was inmate-rial whether Robert paid, or did not pay over that sum to John, To rebut this, the heirs offered in evidence the account filed with the register in 1816, by Robert and John, sworn to by both of them, though rejected for the reason above stated by the Orphans’ Court. In this account there was a specification of certain sums, as received by Robert, and certain others as received by, John, from debtors; and the three first sums above stated, as received from Robert, but not the disputed item of $S04 in 1815. This was objected to, because it had been rejected by the Orphans’ Court, but it was received; and rightly: for though not evidence as a record, or conclusive as to what was on the face of it, as it would have been, if passed and confirmed by the Orphans’ Court, and not appealed from; yet it was á statement of the very matter in question, not only subscribed but sworn to by Robert Sterrett in the life-time of John, remaining on the files of the Register’s Court, and was admissible and proper to be considered in deciding on the evidence adduced, to disprove this new item charged to John since his death; especially considering the kind of evidence adduced in support of -it.
    I have said both these questions, as to the admission of evidence, became immaterial, from the opinion of that court on this part of the cause, which decision was, “That Robert Sterrett was not discharged from his responsibility for those sums which he paid over to his co-executor, but continued liable, and must account for them.
    flow far one executor, administrator, or guardian, who has received the money of the estate or1 of the wards, and who, instead of keeping it, or seeing that it is properly applied, pays it over to his co-executor, co-administrator, or co-guardian and never more inquires about it, until it is lost, is answerable for such money, is an important question, and if not settled, ought to be — no difficulty could be made on this point, were it not for a decision of our own court, Brown’s Jlppeal, 1 Ball. 311. Although the cases in that book,, are generally correctly reported, I am satisfied there is some omission as to the facts of that case. It professes to be decided on the authority of 1st Pr. Wms. 242, which is said to be directly in point. Now there is scarcely a feature of resemblance, as the facts are reported in Dali. In the case in Pr. Wms. the insolvent executor actually received the money — it never was in the hands of the solvent executor. The debtor it is true, when he .paid the money, required and got the join! receipt of both execu.tors, and the question was, whether the act of joining in the receipt, made the executor, who never had the money, liable; on the ground, that as his joining was not necessary, he ought, if he did join, to have a control over the money. To meet this it was shown, that the executor who actually received the money, was a banker in good credit, and with whom the testator, during his life, had kept large sums. In short, that case only decides, that under the circumstances, the bare fact of joining in the receipt did not make an executor liable who never received a penny of the money; and to a certain extent, it is still unshaken. The barely permitting a co-executor to receive money, and not looking to it, when there are no grounds to suspect danger of losing it, does not make a co-executor liable — but when one executor has money actually in his hands and pays it over to the other, or when he actively assists to have it put into the hands of the other, he is generally liable. I say generally liable; for I will not say there can be no possible case in which he would be excused. An executor having money due to creditors or legatees residing at a distance, and who was at the point of death, and knew it; or who, from misfortune, was for the time become totally insolvent, andón his way to a prison; and who, in such circumstances, paid over money to a co-executor in good circumstances and credit, might possibly be held not liable. I, however, give no opinion as to this or some other cases. I only mean to say as a general rule, an executor who has money in his hands, and pays it over to his co-executor, is liable; and I do not say, that no circumstances can exist, which will form an exception. What is the present case? As to the money paid over in 1814, no reason is given for this. John was, by the evidence, more a man of business than Robert; but this is too vague to found any rule on. It appears from the exhibits in this cause that Robert received this money in Lancaster county; that at the time he received it, the bond of Vance against his testator was, and had been many years, due; that he paid the interest on it, and instead of paying off and lifting the bond, brought the money home and gave it to his brother. As to the next year, there is still less excuse; before he receiv-, ed the money he had, together with John, been called on to settle their account as executors; his brother, though reputed rich, was, from the exhibits in this case, indebted deeply — about %7000 to one bank. Under such circumstances, it is idle to talk of excusing himself by saying he paid over this money to his brother; and useless, in this case, to inquire, whether he did or not? he is equally liable for it, whether he gave it to John, under such circumstances, or used it himself; hereafter it may be of some importance to him in a claim, which he may make for a dividend of John’s estate. That is not before us. The court were right in deciding that he was liable to the representatives of his testator for this money, once in his hands, and given over to John Sterrett.

    The next point discussed is, as to this bond of Vance, which was satisfied in 1S15. The Orphans’ Court charged Robert with all the money he received in that year, and they gave John credit for paying off this bond to Vance. In thin wo think there is error. The uncontradicted proof is, that a certain Cummins, understanding that these executors intended to pay off this bond, and wishing to borrow money, made his own bond to Vance, and gave it to Soberl Sterrett, who went to Vance and paid him his money, and lifted the bond of his testator; then gave Vance the bond of Cum-mins with himself, and his brother John as co-obligor. ’ Vance accepted this bond, and gave Robert Sterrett the money to carry to Cummins, and he gave it to him. Cummins has since lifted his bond by re-paying the money to Vance or his assignee. Now Cummins and»all his concerns may be left out-of view; it has nothing to do with the matter before us. . In plain terms, Robert Sterrett, having received money of his testators, applied a part of it to discharge this bond, and lifted it; he is therefore not to be charged, without at the same time being credited, and the item of 800 dollars paid Joseph Vance about the 4th of April, 1815, is to be credited to Robert Sterrett, and the interest thereon, from that time until settlement of his account, amounting to $580 52, is not to be charged to him.
    To make these alterations it will be necessary to state the account anew. The part relating to Robert and to John, will each require material alteration. The representatives of John did not interfere with this account; nor do they take any part here; but they ought to have notice to attend before the auditors. They are not, to be sure, the representatives of James Sterreits’ estate, nor can they intermeddle with it: since the death of John, Robert is the sole representative of James’ estate; but the representatives of John may settle, nay, may be compelled to settle, the account of John, so far as he acted in James’ estate, John’s representatives may I say, settle a separate account of all he did: it is true, they may permit Robert to settle the whole estate of James; but if he separates it, and makes distinct accounts for himself and John, it is the duty of those who represent John, to see that the part of the account which relates to him is correct. Robert must therefore give notice to them of the time and place of meeting of the auditors.
    It has been objected that the Orphans’ Court refused to give Robert credit for moneys paid by him to the heirs of James. There seems to he some misapprehension on this subject. The act of 1713, in every part of it, contemplates that the executors shall not only exhibit an account as to the payment of debts, but also of the payment to each of the legal representatives, of the share of the personal estate which shall he due; and the 11th section expressly provides that, when any of the said minors attain their full age, and the persons entrusted with the estate, shall have paid to such minor his full share, he - shall enter satisfaction therefor; “but in case any of them refuse so lo do, then the said eouit shall certify how the said persons' concerned have accounted and paid, which shall be a sufficient discharge to the guardians and tutors, and to the trustees, executors or administrators, who shall so account and pay; and therefore all bonds entered into for the payment of such orphans’ portions, shall be delivered up and cancelled.” Several-other acts, I may say all oilier acts, contemplate a settlement with the heirs as well as the creditors. The act of the 13th March, 1815, Purdon, 386, states, whereas considerable inconvenience has arisen, and may hereafter arise, by reason of persons dying intestate, whose heirs, or some of them, reside out of the state, who-have been advanced in the life-time of the intestate, and who refuse or do not como forward to make known the amount of their advancements and settle the estate, and the adminislralors cannot for this reason settle their accounts, &c. &c., and then goes on to provide a mode by which a settlement may be made. It is clear from these enactments, that the law contemplates a settlement with all who have an interest in the estate, whether creditors or heirs; but the creditors must bo paid before the heirs can claim; and the account showing the amount of assets and of-debts, ought to be,, and must be, shown before any thing can be ascertained with precision as to the amount due each heir. Administrators, however, often have, where there is no doubt as to sufficiency of assets, paid in part to the heirs before all the debls are paid, and these payments have been brought into the account promiscuously with the payment of debts. This occasions difficulty in making a decree as to the balance; and this court lias, on more than one occasion, said this-was wrong. The meaning is, executors or administrators should exhibit an account of the assets; of the debts and credits of the estate of decedents, the balance on which is the deficit of personal-assets; or is the fund from personal assets to be distributed, and with this no account of payment to heirs of their distributive shares-ought to be blended; but when this is done, and at the same time, and on the same paper, may and ought to be exhibited the payment, if any, which have been made to each distributee; and showing the balance still duo and payable to them, or each of them, or, if the fact is so, that the whole amount due has been paid them; and when-the whole appears to have been paid, the administrator is discharged as above. It is not, however, necessary that the executor or administrator should subjoin (his account to that respecting debts and' credits, to and from strangers, or that it should he exhibited at the same time; but it is advisable, in many eases, that it should be; as the balance in bis hands may, by a late act, be transferred to the docket of the Common Pleas, and entered as a judgment against him.
    The first account, however, showing the state of debts and ere-tilts, must be adjusted before any decree can be made as to distribution; and it has always been the practice, and rightly, to appeal from the decision of the Orphans’ Court on the settlement of such account, and jmior to any account with the heirs being investigated.
    If, when the account is re-stated with dates, &c. it shall appear that any of the money paid over by Robert to John, was actually applied to discharge debts of the deceased, this court reserves the power of considering this at the confirmation of the account.
    At June term, 1831, the auditors made a report, to which both parties filed exceptions, which were argued by

      Hall, S. -Alexander and Potter for appellants,.

      Blanchard for appellee.
   The opinion of the court on these exceptions was delivered by

Hus TON, J.

This case is now before us on the report of the auditors, to whom it was referred to state the account, so as to exhibit what was clone by the executors jointly; what was received and paid by each, and generally every matter.appearing to them.

Exceptions are filed by both parties, to different items, and in one instance each side objects to tbe same item.

On the part of the heirs, the first objection is to the amount of the vendue list. In a prior account in pa'rt, filed by the executors, they had charged themselves with the account of sales at vendue, $2584 56. The present auditors, on examining this account, discovered several errors in the addition, and made the real amount $2473 81. It was right to correct this error and charge the latter sum. The heirs had objected to that account, and it had never passed the Orphans’ Court. Errors in favor of the executors are here corrected, and why not those against them. If the vendue list had been lost, it might be right to charge the executors with what they had stated to be its amount;" but this addition is of the items of the same paper from which the former was incorrectly taken.

The auditors allowed Robert Bierreti $500, and John Sterrett $200, as compensation for time, trouble, expense and counsel fees. The personal estate exceeded $9500, and a large real estate was to be sold, and the money distributed among the heirs. It was sold to the heirs, or rather a part to two heirs, and another part to two other heirs, and in some way all, or a great part of the purchase money settled, and is not before us. The heirs say the allowance is too large; they insist on the delay of the executors, the difficulty in obtaining a settlement, the loss by John Sterrett, &c. The executors object, that they are charged with interest on all sums upon the debet side of the account, which came to them ten years ago, and no interest is allowed on their compensation. The evidence before the auditors, on which they acted, is not before us. It sometimes does great injustice to correct matters founded on facts and evidence, by supposition and theory. Where an executor receives money each year, for a number of years, and pays it away nearly as he receives it, perhaps it is always correct to allow the per cent-age when that particular transaction was completed. But when money has been collected and never paid away, but used by the executors, and some of it squandered, it may be right to allow no per centage at all.

Where an estate is so situated, that legal advice is proper to direct the course of the executors, or where they must bring suits to recover part of the estate, or defend suits brought against them, counsel must be employed; and where they are employed to obtain what is honestly supposed to be the rights of- the estate, the estate ought to pay the reasonable counsel fees. But where executors neglect to settle and pay, and are sued by creditors, or cited by heirs, and employ counsel to defend them in their iniquity, no counsel fees should come from the estate. The man who is doing wrong must himself pay the expense of that wrong. When heirs are asking from executors what is unreasonable, they may defend against this, and the heirs ought to bear the expense of their unjust claim. In this case we think the allowance large enough; but as we are not informed of all the facts and circumstances, we don’t know why such a difference was made in the allowance; we suppose nothing was allowed for time or expense in this proceeding; we therefore make no alteration.

After charging each of the executors with the proportion of the vendue money which could be traced to their hands, there remained ®3S1 90; as to this sum, there is no evidence which of the executors collected it, and the auditors think it ought to be charged to John, the deceased executor. We see no reason for this. Robert is allowed more than twice as much as John for time and trouble; why say he did less than John? On all that appears before us, we think Robert ought at least be charged with one-half of this sum; and we direct $180 95 to be added to the sum with which he is charged, and the same amount to be deducted from the amount charged to John.

There are some small items excepted to, about which the evidence is uncertain; we leave the report, as to these, unaltered.

As to the charge of money received from Nathaniel Sterrett’s estate. This is to some extent admitted, hut said to have been received since this account passed the Orphans’ Court; and as it seems there are also other matters of similar kind, we only say we do not pass on this; it is left for future settlement,

As to-the expenses of this account before auditors. The heirs ought not to pay this. The reasons are obvious. Robert Sterrett filed an account making the heirs his debtors; he owes them by this account nearly $2000. Robert and John, the executors, must pay this.

Robert Sterrett has filed two other exceptions. Because the auditors did not allow him the sum of $804; which he alleges he paid in May, 1815, to his co-executor John Sterrett.' There is nothing to support this exception. The facts go far to negative it.' Robert received above one thousand dollars, in April, and within a month paid to creditors of the estate as much; if he gave to John at that time, it was ■ not money of the estate, but his own, and if lost, he must lose it; he cannot throw it on the heirs.

The next exception, as to the $761 92 paid P. McClure, is on no better footing. The proof is, that John paid that money. John borrowed from her the sum which he had just paid, and an additional sum, and gave his bond, with Robert as his surety. If Robert has been compelled to pay that bond, it was as surviving obligor of John, and not as executor of James Sterrett’s estate.

The report, as corrected in the two items above mentioned, is confirmed. ‘ ,


author: Rogers, T.

text:
    BROWN and WATSON, against KELSO’S executors.
    A summons in debt issued against Jl, B and C trading under the firm of Jl and Company, which is served upon A alone, a rule of reference entered, which is served upon A alone; arbitrators chosen who report “That after hearing the parties, their proof,” &c. they find for the plaintiff a certain sum, upon which a general judgment is entered, and an execution issued. Held, That such judgment is void as to B and C, and that an execution against them on such judgment, although issued more than seven years after the rendition of the judgment, may be set aside on a writ of error.
    Eekoh to Mifflin county.
    This action originated by summons at the suit of Thomas Elder and John Sloan, executors of Elizabeth Kelso deceased, against John Brotan, William Brown and John W'atson, acting under the firm of John Brown and Company. The deputy sheriff returned the writ, “Served on John Brown. Fees $1,00.” On the 21st April, 1819, (being the s:tme day the writ issued,) the plaintiffs entered a rule of reference, which was served on John Broion only. On the day appointed for choosing the arbitrators, no one attended for the defendants; they were chosen by the plain-tiffand Prothonotary, met on the'Sd June, 1819, and made report: “That after hearing the parties, their proofs and allegation, we find for the plaintiffs the sum of 0863 68, with stay of execution by consent of plaintiff’s attorney, until the 1st of June, 1820.” The name of Mr. Bnderson, was upon the margin of the docket, opposite the names of the defendants. Upon this report, judgment was entered and a fi. fa. issued to August term, 1820, which was set aside at the instance of the plaintiffs. An alias fi. fa., was-issued to August term, 1828, against John Broum, William Brown, junior, and John Watson, trading under the firm of John Broion and Company. At the same term Mr. Hale obtained a rule to shew cause why the same should not be set aside, so far as respects William Brown, junior, which at a subsequent term was discharged by the court. This writ of error was then sued out by William Broion, junior, and John Watson and several errors were assigned, the substance of all which was; that the execution issued against William Brown, junior, and John Watson, against whom there was no judgment.

      Hall for defendant in error,
    Moved to quash the writ of error, on two grounds. 1st. Because it was taken out by only two of three defendants; and 2d. Because it was not taken out within seven years after final judgment. And cited Purd. Dig., 777. 2 Sannd. 101, e.

      Piale for plaintiff in error,
    Answered to both reasons, that the writ of error was taken to set aside the execution against the two defendants, at whose instance it issued, and on the ground that as to thorn the judgment was not only erroneous, but absolutely void.

      Platt. If the award is against all the defendants, and the judgment against all, it is good, although served- on but one. Clemson v. Beaumont, 2 Brown’s Rep. 215.

    In a joint suit, the judgment must be against all the defendants, Reigart v. Ellmaker. 14 S'crg. & Raiole, 123. 1 Chit. Plea. 26.

    The award is against all the defendants and the judgment is joint against all, and although it may be erroneous, yet it cannot now bo reversed. The appearance is general, and therefore for all.
      Scott v. Israel, 2 Bin. 145. McCullough v. Guelner, 1 Bin. 214.
   The opinion of the court was delivered by

Rogers, T.

It is impossible to inspect the record, without being satisfied that this is a judgment against John Brown, alone. The suit was brought against the firm, but the writ was served on one only. “Served,” says the deputy sheriff, on the back of his writ, “the within on one of the defendants, John Brown.”

It is plain, that Brown alone, had notice of the time the arbitrators were chosen; and this fact is proved by»the oath of George Green, who served the rule of reference. It has not been shewn, who had notice of the time appointed for the meeting of the arbitrators, nor whether more than one person • attended. If cither of the other defendants were present, it might have been proved without difficulty, and this would have removed the objection, that this is an attempt to make them liable on a judgment, without affording them an opportunity to make defence. The arbitrators state, as is usual, that they make 'their award, after hearing the parties, their proofs, and allegations. We must intend that the parties here spoken of, were the plaintiff, and the person, who it appears, had notice of the proceeding. The special proof of service, cannot be controlled by the general appearance entered by Mr. Jlnderson, or the return on the back of the writ. If we had nothing more, the fee @1 indorsed, accompanying the writ, shews, that the service was on but one of the defendants.

As the cause was referred, and award made before the return of the wi;it, there is no sufficient reason for extending the entry of a general appearance, beyond an appearance for John Brown, on whom the writ was served, who had notice of the arbitration, and who alone for aught that appears, attended the arbitration.

Even if there was an appearance for all, after the award, it would not .make this a valid judgment against all the defendants. This presents the case of an execution against parties, against whom no judgment liad been rendered, which is clearly void. It is not merely an erroneous or irregular judgment, which cannot be examined after the expiration of seven years.

Execution against William Brozan, and John Watson, set aside.


text:
    THE COMMISSIONERS of Mifflin county, against BRISBIN’S administrators.
    The act of assembly oftlie 30th March, 1791, authorizing’ an appeal from the settlement of the account of the county treasurer by the auditors, gives that right of appeal to the accountant officer only, and not to the county.
    Certiorari to the Common Pleas of Mifflin county.

      William Brishin having been the treasurer of Mifflin county, his accounts"were submitted to, and settled by, the county auditors, who reported a balance in his favor of @160,06. From this decision and report, the commissioners of the county entered an appeal to the Court of Common Pleas, which on motion of Mr. Hale, was stricken off by the court, on the ground, that absolute bail had not been given by the commissioners when the appeal was entered

      Hale for Brisbiji’s administrators,
    Moved that the writ be quashed, on the ground that a certiorari would not lie; a writ of error being the proper remedy to correct the error of the Court of Common Pleas, if any had been committed.
    Rogers, J. — Does the 5th section of the act of 30th March, 1791, give the right of appeal at all to the county, and does it not only give it to the accountant officer?

      Banks for the commissioners,
    Insisted that although the right of appeal was not given explicitly to the county, yet by a liberal and just construction of the act it was given; and cited Irish v. The Commonwealth, 3 Bin. 91.
    But the court affirmed the order of the court below, by striking off the appeal, on the ground that the act of assembly did not give the right of appeal to any but the treasurer or accountant officer.
   Judgment affirmed.


author: RogbRs; J.

text:
    THE BURGESS &c. of Huntingdon, against JACKSON and CLARK.
    When a recognizance entered into on an appeal from a Justice of the Peace is defective, the proper mode to proceed is to obtain a rule upon the appellant to perfect his appeal within a given time, or shew cause why it should not be dismissed. But.it is error in the Court of Common Pleas to quash such appeal in the first instanced. , ^
    Eeiior. to Huntingdon county.
    This action originated before a Justice of the Peace, who rendered a judgment for the plaintiff for the sum of #100,00. The defendants appealed to the Common Pleas, and entered into a recognizance before the justice with security, “upon condition that the defendants in the above suit prosecute their appeal with effect, &c.”
    The court below (Burnside president, dissenting,^ struck off the appeal, on the ground that the defendants did not enter absolute bail before the justice, pursuant to the act of 22d March, 1817, when they appealed.

      Miles for plaintiff in error.
    If the recognizance entered into on the appeal, be defective, the party should have been called upon by a rule to perfect his bail within a given period; or in default thereof, that the appeal be dismissed. The court should not have quashed the appeal in the first instance. Means v. Trout, 16 Serg. & Baiole, 349. Noble v. Houle, lb. 421.
    The, ££&c.,” means every necessary matter which should be expressed. Wilsonv. The Commonwealth, 10 Serg. & Baiole, 375.
    A short minute of a recognizance is sufficient. Coinmonwealth v. Emery, 2 Bin. 431. Moore v. McBride,■ 1 Penn Rep. 148. .

      Bell for defendant in error,
    Cited Wash. Turn. Co. v. Callan, 8 Serg. & Rawle, 517.
   The opinion of the court was delivered by

RogbRs; J.

The proper course for the appellee, as was decided in Means v. Trout, 16 Serg. & Rawle, 350, was to call on the appellant to perfect his bail, in a specified period, or in default to have his appeal quashed. Had the appellees pursued this course, the defendants would have had an opportunity to amend, by which his right of trial, would have been .preserved.; If then, there was nothing else in the case, the judgment must be reversed; but we are also of the opinion, that the recognizance was good. The condition of the recognizance is, ‘ ‘that the defendants prosecute their appeal with effect/5 &c. which if drawn out into form, would be in strict conformity to the act of 22d March, 1817, which prescribes., “that an appeal or writ of error, taken by a corporation, the bail shall be taken absolute for the debt, interest and costs, on affirmance of the judgment.55 The only objection, which can be made, is to the insufficiency of the sum named in the recognizance, but this defect, the appellee might have cured in the mode pointed out, in the case of Means v. Trout.

Judgment reversed, with directions to the Court of Common Pleas, to reinstate the appeal.


author: HustoN, L

text:
    THE OVERSEERS against McCOY.
    A having no resident settlement in the state of Pennsylvania, received an injury iat the township of Fcrmanah, which rendered him incapable of supporting Tumsclfj he was .taken into the township of Milford, where he had the means of supporting' himself for six days, when he became chargeable: an order of,maintenance was-obtained from two justices, by the person at whose house the pauper was, directed to the Overseers of tliePoor of Milford township. Soon after the pauper died, and was buried by the individual. field, That tile person who maintained aud buried the pauper, could not recover from the township of Milford.

    Whit of error to the Common Pleas of Mifflin county.
    This action originated bafore a justice of the peace, from whose judgment, the defendants below appealed.

      John Barling came from the state of New-York, and was, in the month of April, 1828, employed as a laborer on the canal, in Ber-manah township, Mifflin county. In May, 1828, Barling had his leg broken by an accident. Haivley, his employer, who owed him a small sum, endeavored to get some one, who lived near to the place where the accident hapipened, to receive him, but they all refused; he then applied to McCoy, the plaintiff below, who resided on the opposite side of the Juniata River, and in Milford township, to receive him; saying at the same time, that provision would be made for his support. Hawley paid McCoy for six days7 keeping the man, and then gave him notice that he would pay no longer. On the 13th June, 1828, McCoy applied io two justices ©f Mifflin county, who resided in Fcrmanah township, for an order of maintenance, which they granted, directed to the overseers of Milford township. This order was delivered to them, but the evidence did not establish the time when.

      Barling was never removed from McCoy’s, but died there of the wound. This action was then brought by James McCoy, against John Brubecker and John Bice, Overseers of the Poor of Milford township, to recover the price of maintaining and burying Barling.

    When the jury were about to be sworn, the court directed the clerk to swear them, as to the defendants, in their corporate name, and directed the record to be amended by striking out the names of jBrubecker and Bice, which was done, and to which the defendants excepted.
    The court below, being of opinion that the plaintiff was entitled to recover in this suit, the jury found accordingly.

      Many errors were assigned;-the substance of all which was, 1st. Thai the court erred in their opinion that Milford township was liable at all; and 2d. That.they erred in ordering the style of the suit to be amended.

      Fisher and Pol ter for plaintiffs in error.
    7 The township \vhere a pauper first falls sick, is always liable in the first instance, for his/maintenanco. Cited, did of March, 1771, Bees., 21, 25, 27. Put McCoy, having received him upon the engagement of Hawley to pay for his maintenance, cannot after-wards resort to the township. It would be a fraud upon Milford township, thus to introduce a pauper, and attempt to make it liable.

      Banks for defendant in error.
    The meaning of the act is, that the township where the funds of ■the pauper become exhausted, shall be -liable. If he has funds •when he falls sick, sufficient to keep him for a time, and with those funds goes to another township to be more comfortable, and then becomes a charge, that township must maintain him.
    No appeal lies from an order of maintenance. Overseers of Lam-peter^. Overseers of Lancaster, 2 Yeales, 164. And in this ease no order of maintenance was necessary. Overseers v. Bunn, 12 Serg. & Baiole, 292.
    The court had authority, by the second section of the act of the 2d of March, 1806, to make the amendment. Bailey v. Musgrave, 2 Serg. & B azote, 219.
   The opinion of the court was delivered by

HustoN, L

—This was an appeal from a justice of the peace, who gave judgment against the overseers for the sum of $43. In court a narr. was filed on a quantum meruit for providing meat, drink, washing, lodging and receiving John Barling, a pauper. The jury found for the plaintiff #28 02.

The testimony made out the following case: While the state was making the canal up the Juniata, through Mifflin county, John Hawley, a contractor, hired, in April, 1828, John Barling as a laborer. Barling had come from the state of New-York, and had no place of settlement in this state. Here I must notice a lamentable defect of precision in the dates of the following occurrences. About the last of May, Barling’s knee and leg were badly shattered, by a rock falling on him — this was in Fermanah township —after applying to two other persons in. that township, who declined receiving the wounded man, Hawley, ontheadvice of Shull, who kept a tavern in Fermanah, sent for McCoy, who lived across the river Juniata, in Milford township, who agreed to take him, and Hawley promised to malee provision for Mm; or that provision should be made for his relief; and Barling was removed, to Milford township. After a short time, Hawley told McCoy he would be no longer answerable for his support, and that he must take the course of the law.

Hawley says Barling was maintained six days by him; on the 13th of June McCoy applied to two justices of Fermanah township, who made an order of maintenance on the Overseers of the Poor of Milford. This was left for three days at the house of one Wright; when it was given to the Overseers of Milford did not appear; it was in the possession of one of them on the 7th of July, as he acknowledged at the trial before the justice; but no one asked, nor did he state, when he received it. The witness says Barling died the 26th of July; but this suit was commenced the 2d of July, and the case heard on the 7th. I then take it he died in June. The demand of McCoy was #61. Hawley stated the money due by him to Barling, was only sufficient to pay his expenses for six days, which he paid to McCoy.

Our books show but few decisions on the construction of the laws for the support of the poor. Many acts of assembly had passed on this subject, and on the 9th of March, 1771, an act was passed, intended to form a complete system, and supersede all prior laws. This act was made perpetual by the act of the 25th of March, 1782.

It is, however, singular that although it is assumed in many parts of the law, (particularly the 22d, 25th, and preamble to the 27th, and the 27th sections,) that every person who is unable to support him or herself, shall be maintained, by the Overseers of the township where such person is, when he becomes helpless; yet there is no direct provision, that such pauper shall be so maintained, in any part of the act. The law had made so many provisions for gaining a settlement, that it seems to have been assumed that every person would have a settlement somewhere; and it directs that the expense of maintaining a pauper, until he can be removed, or of burying him, in addition to maintenance, if he dies, shall be recovered from the township where his settlement was. If he had no settlement, no such recovery can be had, and the expense of maintenance remains on the township in which such pauper was when he required relief. Our courts have always so considered it, and I believe so has every other person. The order of maintenance is as well known as the order of removal, though the former is no where expressly directed by the act. See 2 Yeates, 164. 12 Serg. & Rawle, 292. The present case, independently of the question decided, presents possibly some others, between different parties who are not before us, and on which we do not give any opinion. I mean, how far Hawley is liable to McCoy, and whether Fermanah township, was not liable to support the man whose leg was broken in that township, he having no settlement elsewhere, and to bury him when he died of the wound. We have' here only to decide on the liability of Milford township.

In 6 Serg. & Rawle, 563, Phila. v. Bristol, some particulars are stated which may he useful here: A woman who has a settlement in one township, is taken in labor in another, she cannot be removed for some time; she must be maintained until she is able to move, and must be maintained by the township where she is, and redress had from that where she has a settlement — if she has no settlement, the expense remains on those where she was taken ill. Generally, abastard child is to be supported where it is born. To this exceptions are stated, as where a woman pregnant of a bastard, is, immediately before delivery, removed to another township by collusion, or where the child' is born pending an order of removal, and is then settled on the township against which judgment is given, or where the mother is taken in labor in travelling under the order of removal and the child is born in an intermediate township, and some other cases. And it is there settled that when a female servant pregnant with a bastard child, is put to hired lodgings to be delivered, in a township different from where her master lived, she may be removed to where she is settled, as likely to become' chargeable; though the master engaged the lodgings, and is able to pay for them, and that although the master had no such intention, yet it was a fraud on a township to send such a woman from her master’s house, to a township where she has no settlement; and then make that township liable for the support of the bastard.

The case in 12 Serg. & Rawle, 292, in some respects resembles the present: in one at least, it is essentially different: that case proves that a stranger wounded or sick, must be supported by the township where he is at the time, and the person in whose house he is, can, by proceeding- properly, recover for the time, before, as well as after application to the Overseers. That the omission of the Overseers to put the indigent person on the poor book, does not destroy the right of recovery against them, and distinctly recognizes the principle, that a person who has no settlement, must be supported where he falls helpless.

According, that case Fermanah was bound to support him, the instant he wras disabled, at its own expense, if he had no settlement, with recourse to the place where he had a settlement, if he had such settlement.

Perhaps if he had been carried by persons unknown to Milford after he was wounded, and left there, till found by some person, Milford must have supported him; and when he died, buried him at its own expense; unless it could have recourse to Fermanah, or the persons who removed him to Milford.

This is not that case, he was removed to Milford, when actually crippled — wounded mortally, by persons well known and voluntarily, (not crippled when brought to his door, but,) received on a previous agreement by McCoy, that he should be brought to Milford, from Fermanah, and this on some promise by those who brought him, that provision for his support should be made. I do not say that Hawley or McCoy intended a fraud on Milford, but most clearlytit was one, and in its consequence, if Milford is liable, most palpably so.

The fact stated, and so often repeated in the argument, that ho had some funds, can deceive no one: A shilling or ten shillings, are funds to get a breakfast, or a day’s boarding, but to support a man while the leg and knee are shattered by the falling of a rock on it, are in fact the samo as if only one cent or not a cent was in the pocket.

I can at once perceive, that one or two persons in Fermanah, having refused to take the man into their houses, and the cruelty and barbarity of dragging him for miles down the river,- struck the judge, and he seems to have thought of the humanity of McCoy, in taking him into his house. I would have thought better of that, if he had not charged so enormously for the exercise of it. Let us consider the matter. On application to the Overseers of Ferman-ah, they must have provided for him, and on their application, a house would soon have received him. If instead of this, it is once settled, that by individuals refusing and advising to go further, a sick or wounded stranger can be got into another township, and the burden of maintenance cast on that township, it will encourage and increase the barbarity of refusing a wounded man into the house. As it is, whoever admits him, is sure to be paid, on applying to the Overseers of his own township, though the poor tax may be increased. Ey the mode pursued in this case, the township is protected from 'maintenance, and the burden is thrown on the first township in which a man can be found, who will receive him in expectation of getting two dollars a day while he stays. Let it be understood, I am not speaking of the case where a sick or wounded man comes to the door, and asks admission; in such a case, humanity requires that he should be received, and the law provides, that the householder shall be paid. This is not such a case. McCoy assisted to bring him into Milford on an agreement of some kind. Milford was not liable, and would not have been, but for this act of McCoy. I care not whether the motives of Shull, who advised applying to McCoy or of Hawley, or McCoy, were good or bad. Let them answer to one another for these doings. These agreements or contracts, cannot affect or render liable tiiose who never knew or heard of them, nor alter the law and remove a burden from one township to another, at least not in favor of, or in case of the very man whose alone gave color to the claim.

If the two Overseers of the poor of Milford, had been present, .and from the purest humanity had agreed and assisted to remove this rpan to Milford, had assessed a tax and paid his support and burial expenses, the auditors could and would have rejected their account, and they individually must have borne the expense. Humanity is amiable, and in this country is common; but it is and must be exercised by every individual himself, on his own funds, or personal exertion; when it requires compensation at the expense of others, and especially very large compensation, it ceases to be a virtue. As a court, we cannot change the law, even where we believe it grievous. We commend its exercise — but in deciding on the poor laws, in cases where the humane applies for redress under them, we must take the law as it is written, and it contains no provision, that a man who on a contract, brings a man badly wounded and pennyless, from a township which is liable to support him, into one which is not so bound, can compel the latter to pay him for his support.

Judgment reversed, and venire de novo awarded.


text:
    THE COMMONWEALTH against THE HUNTINGDON BANK.
    The act of the 21st of April, 1814, which exacts a duty of eight per cent, upon the amount of dividends declared by any bank, provides, that upon the failure of • the bank to pay the same to the state treasurer, within a given period, he shall proclaim the charter of such bank to be forfeited. Held, That such proclamation having been made, and the charter forfeited, will not preclude the state from recovering in an action, the duty of eight per cent. also.
    ERROR to the Special Court of Common Pleas of Huntingdon county.
    This was an action on the case brought by the Commonwealth to recover from the Huntingdon Bank, eight per cent., the state tax, upon the dividend declared by the said bank, for the year ending the first Monday of November, 1821.
    The bank was incorporated by the act of the 21 st of March, 1814, and continued to do business till December, 1821. On the first Monday of November, 1821, the bank declared a dividend on its capital stock of $2846 62; and on the 24th of November, 1821, remitted and tendered to the state treasurer, the sum of $227 73, in notes of the bank, which he refused to accept, because the said bank was then not paying specie for its notes. On the 30th of December, 1821, the state treasurer officially declared the charter of the said bank forfeited, because of the non-payment of the state tax. The bank never afterwards acted under its charter.
    Upon this state of facts the court below was of opinión, That the state, having exacted the forfeiture of the charter, was not entitled to recover the money also; and rendered a judgment for the defendant, which was here assigned for error.

      Blanchard for plaintiff in error.
    The eight per cent, which the act of the 21st of April, 1814, section 10 provides, shall be paid to the state, is a duty payable by the bank for the privilege of banking; and the provision in the act, that the charter shall be forfeited in ease of non-payment, does not take away the common law remedy, to recover that which the bank, by the acceptance of its charter, contracted to pay.
    The offer of their own notes in payment was after the passage of the act of the 27th of January, 1819, which prohibited the treasurer from receiving the notes of any bank which did not pay specie. But if it was a legal tender, yet it was not continued.

      Potter for defendant in error.
    The Commonwealth had an election, either to exact the forfeiture or require the money; and haying made "the election, they could not pursue any other course. 1't was eyidently not the intention of the legislature to résort to a courtof law; but to'compel the payment by a penalty. There is no provision in'the act authorizing a suit to be brought. • ,' .
    The court was of opinion that the 'judgment of the court below was’erroneous, and therefore reversed jj, and entered a judgment for the plaintiff. , . '
   Judgment reversed, and judgment entered for the plaintiff