text:
    Hess’s Estate. Bair & Shenk’s Appeal.
    1. H. and C. beeam^ co-sureties for S., who assigned for the benefit of creditors. He afterwards died insolvent. 0. paid the obligations; the estates of H. and S. together not being sufficient to pay 50 per cent, of the obligations. Held, that 0. was subrogated to the claims, and entitled to a dividend on his whole payment from the estate of H.
    2. A surety who pays his principal’s debt is entitled to be subrogated to all the rights and remedies of the creditor against his co-surety, in the same manner as against the principal.
    S. The effect of subrogation is that the debts are treated as in full life and enjoying the rights of the creditor.
    4. The creditors of a decedent are the owners of their share of the assets, and the administrators are trustees.
    5. Mosier’s Appeal, 6 P. F. Smith 76, recognised.
    May 26th 1871.
    Before Read, Agnew, Sharswood and Williams, JJ.

      Appeal from the decree of the Orphans’ Court of Lancaster county: No. 96, to May Term 1871, distributing the estate of Henry Hess, deceased, in the hands of John B. Herr and Daniel Herr, administrators; the balance being $20,090, which was referred to S. P. Eby, Esq., as auditor to report distribution.
    His report exhibited the following facts:—
    Henry Hess, the decedent, and Christian Lintner became co-sureties in a number of bonds and notes amounting in the whole to $20,661.12, for Samuel Hess. On the 27th of February 1869, Samuel Hess made an assignment for the benefit of his creditors, and on the 28th Henry Hess died.
    The amount of one of ‘the obligations Lintner was compelled by suit to pay, and he paid the remainder under threat of suits. The estates of Henry and Samuel Hess were together insufficient to pay 50 per cent, of their liabilities, including the amount paid by Lintner as surety.
    Before the auditor he claimed a dividend upon the whole amount so paid by him.
    The auditor reported that as Lintner was claiming against the estate of his co-surety on obligations of which he himself was bound to pay the one-half, he was entitled to a dividend only on the one-half of the amount paid by him.
    On exceptions, the Orphans’ Court (Long, P. J., delivering the opinion) overruled the report of the auditor, and awarded to Lintner a dividend on the whole amount paid by him.
    Bair and Shenk, creditors of Henry Hess, appealed to the Supreme Court from this decree of distribution, and assigned the decree for error.

      S. J. Reynolds and O. J. Dickey (with whom was &. M. Kline), for the appellants,
    contended that it was not a case of subrogation, but of contribution. They cited Springer v. Springer, 7 Wright 518; Croft v. Moore, 9 Watts 451; Agnew v. Bell, 4 Id. 32; Miller’s Appeal, 11 Casey 481; Patten’s Appeal, 9 Wright 151; Dixon on Subrogation 126; Maxwell v. Herron, Ross’s Leading Cases, 99 Law Lib. 91; 1 Parsons on Bills 250; 2 Id. 253, 254; Wallace’s Estate, 9 P. F. Smith 401; Lloyd v. Galbraith, 8 Casey 103; Ziegler v. Long, 2 Watts 206.

      J. B. Livington and A. K. Smith (with whom was D. G-. Eshleman), for appellee,
    contended that Lintner had the right to be subrogated to the creditors whose claims he had paid. They cited Hodgson v. Shaw, 3 Mylne and Keen 183: Craythorne v. Swinburne, 14 Ves. 160; Yard v. Patton, 1 Harris 286; Cottrell’s Appeal, 11 Harris 294-295; Mosier’s Appeal, 6 P. F. Smith 76-80; Hoover v. Epler, 2 Id. 522; McCormick’s Adm. v. Irwin, 11 Casey 111; Kyner v. Kyner, 6 Watts 225; Cuyler
      v. Ensworth, 6 Paige 32; Croft v. Moore, 9 Watts 451; Cheesborough v. Millard, 1 Johns. C. R. 609; Avery v. Patton, 7 Id. 211; Lewis v. Palmer, 28 New York (1 Tiffany) 271; Rittenhouse v. Levering, 6 W. & S. 190; 1 Pothier on Obligations, Pt. II. ch. 6, art. 4, p. 427; Miller’s Appeal, 11 Casey 481; Patten’s Appeal, 9 Wright 151.
   The opinion of the court was delivered, October 9th 1871, by

Read, J.

Henry Hess the father and Christian Lintner the father-in-law of Samuel Hess became bound as sureties, on bonds and notes given by Samuel Hess to different individuals. On February 27th 1869, Samuel Hess made a general assignment for the benefit of creditors, and on the next day his father Henry Hess died insolvent. Christian Lintner, under legal pressure, paid these debts for which he and Henry Hess were bound, and took transfers thereof from the creditors. The auditor gave a dividend only on one-half the amount paid, which the court reversed and gave a dividend orí the whole amount. The two estates of Samuel and Henry Hess will not pay together fifty per cent, of the amount paid by Christian Lintner.

The decision of the auditor was founded upon a Scotch case, decided by the House of Lords on the 11th of June 1794, reversing a decision of the Scotch court, -who had held that the surety was entitled to rank for the whole sums due on those debts paid by him. It is to be found in Ross on Principal and Surety, in Yol. 99 of the Law Library, p. 93.

In the Roman law, the obligation of co-cautioners was undertaken by the “ stipulatio,” in which each answered or engaged for the whole debt. The consequence was that each was liable singuli in solidum ; and that there was not in law any obligation or ground of action to the several cautioners against each other, but on any one of them paying the debt it was extinguished, and all the rest of the cautioners discharged. Two remedies in equity were afterwards introduced: the Benefioium JDivisionis, by which any one might insist on the others being called on to pay their share; and the Benefioium Gedendarum Actionum, by which anyone cautioner on paying the debt, was entitled to require the creditor to assign his right to him: Shaw’s Edition of Bell’s Principles of the Law of Scotland, p. 97, § 268; Oumius’ Manual of Civil Law, p. 204-5.

In 1 Bell’s Commentaries on Laws of Scotland, p. 354, it is said: “ Where the principal debtor has failed, and there are two cautioners, one of whom is solvent and the other insolvent, the creditor after discussing the principal may either go against the solvent cautioner, and make him pay the remainder of the debt, or he may, if he think fit, claim to be ranked for the full amount of the debt upon the estate of the insolvent cautioner; and after drawing a proportional dividend make the balance of the debt (after imputing such dividend) from the solvent cautioner. But he can so claim for the whole debt only before receiving payment of any part.”

“ If the creditors go first against the solvent cautioner, and compel him to pay the whole debt, such solvent surety is entitled to be ranked upon the estate of the insolvent cautioner for one-half only of what he pays. For as where there are two cautioners, each stands indebted as principal for one-half of the debt, and as cautioner for the other, when a solvent cautioner pays the whole debt, he necessarily extinguishes that moiety of it in which he stands indebted as principal; and of course he can claim and prove against the co-cautioner’s estate only the other moiety which he has thus paid in the character of surety for his co-cautioner,” — and for this doctrine the case cited by the auditor is the authority.

“ Where on the other hand the creditor goes first against the estate of the insolvent cautioner, he is entitled to be ranked upon it for the full amount of the debt, and to draw a proportional dividend, in regard that both cautioners are bound to him in solidum.” .

“The doctrine thus established,” says the learned commentator, “ does in its consequences seem inequitable and arbitrary, since according as the creditor may think fit to proceed, very different results to the cautioner arise. If the creditor choose to take full payment from the solvent cautioner, it will be ultimately for the advantage of the estate of the insolvent cautioner. If, on the other hand, he thinks fit to go in the first place against the estate of the insolvent cautioner, it will be ultimately for the advantage of the solvent cautioner.”

In America, and certainly in Pennsylvania, a surety paying the debt of his principal is entitled to be subrogated to all the rights and remedies of the creditors, as against his co-sureties in precisely the same manner as against the principal debtor, and as substituted in the place of the creditor and entitled to enforce all his liens, priorities and means of payment, and by the Act of 19 & 20 Vict. c. 97, § 5, this is now the law of England.

The debts paid by Christian Lintner and transferred to him, .'stand exactly in the same position to the assets of the decedent, Henry Hess, as if presented by the creditors themselves,, their status being fixed by his death, and nothing having occurred to change or reduce the amount. So far as they existed as debts payable out of the estate, no part of them is paid or extinguished, for the effect of subrogation is to consider them in full life, and enjoying all the rights of the original creditors.

• We regard the administrators of the decedent as trustees, and the creditors as cestuis que trust, owners of their share of the assets, and which, applying the principle in Miller’s Appeal, 11 Casey 481, and Patten’s Appeal, 9 Wright 161, passed to the co-surety who stepped into their shoes when he paid the amount due on such claims.

In Lidderdale v. Robinson, 2 Brockenbrough 160, affirmed by the Supreme Court of the United States, 12 Wheaton 594, it was held “where there are two sureties on bills of exchange and specialties, and one of them has paid more than his proportion, and his representatives seek contribution out of the estate of his co-surety, the surety who has overpaid will be subrogated to the rights of his creditors. The representatives of the surety, who has overpaid, are entitled to rank according to the dignity of the claims on which such excess was paid. The principle of substitution applies equally to cases arising between co-sureties and those between a surety and his principal.”

Chief Justice Marshall said (p. 168): “ The principle which the cases decide is this: Where a person has paid money for which others were responsible, the equitable claim which such payment gives him, or those who were so responsible, shall be clothed with the legal garb, with which the contract he has discharged was invested; and he shall be substituted to every equitable intent and purpose, in the place of the creditors whose claims he has discharged. This principle of substitution is completely established in the books, and being established, it must apply to all persons who are parties to the security so far as is equitable. The cases suppose the surety to stand in the place of the creditors as completely as if the instrument has been transferred to him, or to a trustee for his use. Under this supposition he would be at full liberty to proceed against every person bound by the instrument.”

This case leaves no doubt as to the correctness of the decision of the court below.

The opinion of the Chief Justice in Mosier’s Appeal, 6 P. F. Smith 76, and the cases cited by him show the extent of the doctrine of subrogation in this state, and directly affirm the principles above stated.

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


source: Caselaw Access Project

author: Thompson, C. J.

license: Public Domain

text:
    Letzkus versus Butler.
    1. Letzkus gave his negotiable note to a company. Butler as holder sued him on it. Letzkus gave evidence that the note had been given for stock in the company, at the solicitation of Butler, who was a director and a leading man in the company, and on condition that Letzkus should be superintendent. Stock was transferred to him by Butler, and he was employed as superintendent at $1000 for six months and discharged in two and a half months, for which time he was paid wages. Held, to be no defence to the note.
    2. Under the Act of May 11th 1871, the Supreme Court will reduce their opinions to writing only in cases of reversal, and in such cases of affirmance as shall be deemed by a majority of the court sufficiently important.
    3. When a judgment is pronounced with an opinion “Pee Curiam,” it will imply that elucidation and argument are not required in the particular case.
    October 2d 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 18, to October and November Term 1870.
    This was an action of assumpsit, brought January 13th 1869, by J. G. Butler, Jr., against John Letzkus.
    On the trial, November 17th 1869, before Kirkpatrick, J., the plaintiff gave in evidence the following note, with protest, the plaintiff being the holder, and rested:—

      “ $1000. “ Youngstown, O., Dec. 6th, 1867.
    “ One year after date, I promise to pay to the order of Youngstown Nut and Washer Company one thousand dollars, at Wick, Bros. & Co., with interest. Yalue received.
    “ John Letzkus.” (277)

      (Endorsed.)
    “Pay Lake Superior Nut and Washer Company, or order.
    “ Youngstown Nut and Washer Co.
    “ By W. H. Wick.
    “ The Lake Superior Nut and Washer Company.
    “ By J. G. Butler, Jr., Treas.
    “Pay James Ward & Co., or order.
    “ J. G. Butler, Jr., James Ward & Co.,
    Wm. H. Brown, James Ward & Co.”
    The defendant testified: — “I was working at Youngstown Rolling Mill; Mr. Butler and others were about starting a Nut and Washer Company; I told some friends if I had the money, I would like to take an interest; in a week or ten days after I was introduced to plaintiff; hisaid he would like to have me in the company, as he thought I understood the business ; told him I had no money to go at that time; he said he could fix matters up afterwards. As I was coming home, met Butler in the cars; he said, ‘ if you give me your note I will advance the money for the amount of stock you take;’ told him I would not take over $1000. He then stated he wanted me to go in. He wanted me to superintend and take charge of business; told him on them conditions I would go in; also told him I was inventing machinery, and would like to have them go in and be tried; he said it should be done. This is about all that happened in the cars. Afterwards met him, and we arranged matters to get me to go along to New Haven to see machinery. Went there with Butler and Wick; they bought machinery on my judgment. Butler, Wick and others got company started. They held meetings; Butler leading man. Discussed matters; wages fixed on Butler’s motion, at the rate of $1000 for six months. I gave note before they fixed my wages, but on representation of Butler, that I was to be superintendent and test my machinery. He fixed no time; was to get stock from company; Butler to advance the money; I neither got stock from company, nor certificate from Butler. Saw on books of company $1000 of Butler’s stock transferred to me. Asked for certificates of stock; never got them. Have asked Butler for certificates; never got them from him. Went to work as superintendent; worked about two months and a half, when I was discharged by company. Attended more than my time. Worked all day, and at night. Had started men on my patents. My invention was not tested by the company. Never got any consideration for my note. Got and earned my wages. Lost my place there. My wages were paid in cash. Pay of wages began 1st January 1868. I gave a lien on the stock transferred to me on books of company'to Mr. Butler, plaintiff. I was a director in Youngstown company. I attended some of the meetings. Company had power to discharge me or any one. The agreement as to the introduction of my machinery was made with Youngstown Nut and Washer Company some four to six weeks after I had given the note. The bargain I made with the company was different from the bargain I made with J. G. Butler, Jr.”
    The defendant requested the court to charge the jury
    1. That under the evidence in this case, if they believe the same, the defendant is entitled to a verdict.
    2. That if the jury believe that the plaintiff was aware of all the facts as proved by the witness, then he is not an innocent holder of said note for value received, and defendant is entitled to a set-off for all the loss he has sustained by reason of the failure of the said Youngstown Nut and Washer Company to comply with the contract on which said note was given.
    The court refused both points, and instructed the jury that the plaintiff was entitled to recover. The jury found for the plaintiff $1118.49.
    The defendant took out a writ' of error, and assigned for error the answers to his points and the instruction of the court.

      J. J. Mitchell and it. Woods, for plaintiff in error,
    cited Swain v. Ettling, 8 Casey 486.

      J. S. and A. P. Morrison, for defendant in error.
   The opinion of the court was delivered, October 16th 1871, by

Thompson, C. J.

In this case we are all of opinion that there was sufficient testimony to justify the instructions of the learned judge to the jury, and the instructions themselves were unexceptionable. The judgment must therefore be affirmed.

In this connection we have a matter of practice which we wish to state for the information of the profession, and as explanatory of the course which we may, to some extent, pursue in regard to a class of cases that we often meet with in the discharge of our official duties. It is this :—

By the Act of the General Assembly, approved the 11th of May 1871, entitled an Act “relative to the opinions of the Supreme Court,” the 2d section of the Act of 6th of March 1812, requiring “the judges of-the Supreme Court to give their opinions on every point and exception taken and signed in the inferior courts,” was repealed, and the law so modified as to require the judges of the said court “to give their opinions in writing and file the same of record, upon any point on which a judgment of reversal shall be entered, and in such other eases as the majority of the said judges shall deem of sufficient importance to require their opinions to be reduced to writing and filed of record.”

By this act an unnecessary burthen has been removed from this court, and one which in fact had become well nigh impossible of performance, consistently with the duty of the court to the despatch of business constantly pressing within any reasonable time. Indeed it may well be doubted, whether the requirements of the Act of 1812 were not always an evil instead of a benefit to the law. It involved the necessity of stating and restating in writing, settled principles as often as they occurred, no matter how often that may have been done in preceding cases. In this way a principle was in danger of losing its identity, solely by iteration and attrition, or on the other hand of becoming too expanded for want of care in stating it with precision. This is a mischief to be avoided as far as possible, and it may be done by the exercise of a sound discrimination, as to whether well known principles ought to be discussed or stated anew. The present act gives some latitude as to this.

But beyond this, the change in the law provided by the act, will enable, the court to pronounce its judgment in a majority of cases, without much delay, and this will afford them more time to devote to the examination and discussion of those of more importance or novelty of principle. The labors of this court, heretofore enhanced by the requirements of the repealed section, and actually performed by it, I fully believe, have been greater than that of any court of the last resort, Federal or State, in the Union. The new act affords some relief without a possible injury to the law. It expresses a trust in the Supreme Court, which has final jurisdiction in cases of life, liberty and property, in the less grave responsibility of determining when and where it is most proper and fit that its opinions shall be written, filed and published. This is the case almost everywhere else out of this Commonwealth. No danger that this duty will not be faithfully performed if other duties have been. A desire for the confidence and approval of the profession, and the public, will always be a sufficiently impelling motive to judges, to make known the reasons for their decisions, in cases of anything like gen eral,importance or principle.

The new Act of Assembly will also be a relief to the professors of the law, in diminishing the number of volumes of reports they must annually buy.

The legislature possibly may have had some reference to this as a purpose of the law in the correction made. They doubtless knew how enormous had been the increase of reports within the last few years, and the burthen upon them, of keeping up with the increase. I do not mean our state reports alone, but these, with the reports of other states which every lawyer endeavors, as far as he can, to have in his library. It was, therefore, an economic consideration not unworthy of legislative attention. There is no doubt' but the profession of the law has always, and ever will, require more of its own literature than any, I might almost say, all other professions together. New developments of principles from new pursuits, ought and will always be made public through reports. They are of infinite value to progress and to civilization itself. The publication, however, of all that emanates from any and every court, important and unimportant, increases books without always improving the law. The body of reports emanating annually from the press in this country is almost illimitable. A contrast with this is forcibly brought to my mind by recurring to a remark of an old writer, the name of whom I do not remember. Speaking of the Year Books, which were semiofficial reports, he said that when these publications were discontinued in the reign of Henry VIII. it was because it was thought enough reports of decisions had been published to establish the law of the kingdom for all possible cases which might arise in future. A great mistake this, indeed. At this day, there are more than ten times the number of volumes of reports published annually, than were the whole number of volumes of the Year Books, from and including Edward II. to the reign of Henry VIII. This is only curious in contrasting those times with the present. We must and ought to have reports — reports confined to important principles — but not of everything said or done in the courts. That is not necessary or useful.

Notwithstanding the change of the law on this subject by the Act of Assembly mentioned, it still remains the duty of the judges of this court, to determine in every case, whether more than a short, or per curiam opinion is necessary or beneficial to the law involved in the ease. When, therefore, a judgment is so pronounced, it will imply an opinion previously entertained, that the law is so well settled, that argument and elucidation are not needed in’the particular case.

' A further requirement will be noticed in the act: namely, to file opinions in every case of the reversal of a judgment, upon the point or points of which such reversal is predicated. This not only for the correction of the mistakes made in the law of the case, but tOi stand as a guide in the re-trial of the same case in the inferior . court. If no new trial be awarded on the reversal of the judgment, the opinion will, as in all cases, be a precedent in similar cases, and exhibit what'the law was which has ended the controversy betweén the parties. With this modification of the Act of 1812, labor enough, and more than enough, remains to be done to employ all the time that health and strength will permit the judges in discharging their duties to the public. Thus much we have thought it proper to say as explanatory of the change which may take place to some extent in the matter of filing opinions under the new, instead of the old law.


author: Sharswood, J.

text:
    Gamble et al. versus McClure.
    1. The title of land being in the wife, an exchange was agreed to be made with W.; he and the husband (with the wife) made deeds of bargain and sale of the same date and for the same amount of consideration, to each other, the wife not acknowledging the deed. After the death of the husband and wife, the heirs of the wife recovered her land from D., the grantee of W. Held, that the devisees of D. could not, on the ground of failure of title in the land conveyed to W., recover the land conveyed by him.
    2. In a technical exchange of lands, the law annexes an actual warranty with a condition of re-entry on the failure of title of the land exchanged: and the party evicted can recover back the land given in exchange.
    3. To produce this effect it is absolutely necessary the word “ exchange ” should be used. No other equivalent word can supply its place.
    4. Where an exchange is effected by deeds of bargain and sale, the remedy of the party evicted is for damages on his covenants of warranty.
    5. A parol agreement for exchange consummated by deed of bargain and sale, will not establish an exchange, so as to enable one of the parties on eviction to recover back his land.
    October 2d 1872.
    Before Thompson, C. J., Read, A&new, Sharswood and Williams, JJ.
    Error to tbe Court of Common Pleas of Allegheny county: No. 136, to October and November Term 1869.
    This was an action of ejectment by Harriet Gamble, J. N. Gamble and J. H. Gamble against Francis McClure, commenced June 4tb 1864, for a tract of 275 acres of land in Mifflin township.
    Alexander McClure, by bis will dated February 24th, 1803, devised to bis daughter Margaret McClure, tbe wife of Francis McClure, one-balf of a tract of land in Elizabeth township in tbe same county. William McClure then owned tbe tract in dispute.
    On tbe 30th of May 1805, Francis McClure and Margaret his wife, by deed of bargain and sale for tbe consideration of ¿É1000, conveyed to William McClure tbe tract devised to Margaret McClure. This deed was not acknowledged by Mrs. McClure. On tbe same day, William McClure, by a like deed and for the same amount of - consideration, conveyed bis tract in Mifflin township to Francis McClure. On the 10th of April 1810, William McClure conveyed tbe land in Elizabeth township to Hezekiab Douthett. In 1844, after tbe death of Mrs. McClure and her husband, her heirs brought an ejectment in tbe District Court of Allegheny county against Douthett, and recovered the Elizabeth township tract which bad been devised to Mrs. McClure. Tbe plaintiffs in this case are devisees under the will of Douthett, and alleged that the transaction by which the tracts in Mifflin and Elizabeth townships had been conveyed to William McClure and Francis McClure respectively, although evidenced by deeds of bargain and sale, was, in fact, an exchange, and Douthett having been evicted under a superior title, his devisees could recover back tbe land given by his predecessor in title for the tract from which Douthett had been evicted.
    On the trial, March 10th 1865, before Mellon, J., the foregoing facts appeared in evidence.
    The plaintiffs offered in evidence also the record of the suit of Mrs. McClure’s heirs against Douthett, containing the testimony of William McClure, who was dead, viz: [“ Knew old Alexander McClure. Some time after the death of Alexander, William McClure and Francis McClure had a day appointed to divide' the Stretch farm, which they held together; the men met and went part of the way round the lines of the whole tract; came along to division line between that tract and mine; they stopped, and made an exchange; agreed to make an equal exchange of property, and so there was no necessity to go any further about the division, as they had agreed to make an even exchange for a tract, on a part of which Francis McClure then lived. William gave Judge McClure that tract in place of his share in this; Francis lived on the tract he got in exchange, till his death. His son Francis has it now, living on it. I was not present when the deeds were made. Each kept possession of the land he received in exchange, and William sold what he got. Judge lived on till his death. The farm was never divided between William and his father. William worked the whole, and gave his father the sixth of the produce of the whole. Alexander and William lived in separate houses on the tract, but I know of no division between them.”
    Will of Francis McClure in evidence.
    “ Testimony closed, and it is now agreed, in open court, that the facts as above be taken as a case stated, on which the court may enter such verdict as they shall be of opinion ought to have been rendered by the jury, with leave to either party to take a writ of error, as upon special verdict.
    Agreed, Coram R. C. Grier.”]
    The court rejected the evidence and sealed, a bill of exceptions.
    On the condition of the case as above stated, the court ordered a nonsuit.
    The plaintiffs removed the case to the Supreme Court, and assigned the judgment of nonsuit for error.

      J. R. Large, for plaintiffs in error.
    Facts agreed to in a case stated must be taken as admitted: 1 Greenleaf on Evidence, §§ 205-207, 223-227.

      R. Woods, for defendant in error,
    cited McClure v. Douthett, 3 Barr 446; s. c. 6 Barr 414.
   The opinion of the court was delivered, October 16th, 1871, by

Sharswood, J.

It appears from the brief abstract of title given in the paper-book of the plaintiff in error, that Alexander McClure, being seised in fee simple of a farm in Elizabeth township, Allegheny county, by his will, dated February 24th 1803, devised the same to his daughter Margaret, the wife of Francis McClure. William McClure was the owner of a tract of land in Mifflin township. It would seem to have been agreed between Francis and William McClure to make an equal exchange of their properties, and, in pursuance of that agreement, on the 30th of May 1805, mutual deeds of bargain and'sale — each expressed to be in consideration of one thousand pounds — were executed. William McClure conveyed the land in Mifflin township to Francis McClure, and Francis McClure and Margaret, his wife, conveyed the land in Elizabeth township to William McClure. Margaret McClure, in whom the title in fee-simple, as we have seen, was vested, though she executed the deed, did not acknowledge it according to the Act of Assembly of February 24th 1770, 1 Sm. Laws 307; so that her interest did not pass. In consequence of which, after the death of Francis and Margaret McClure, an action of ejectment was instituted by the heirs at law of Margaret against Hezekiah Douthett et al., claiming under William McClure, for the tract in Elizabeth township. That case was twice in this court by writs of error to the District Court, and is reported in 3 Barr 446, and 6 Id. 414. The final judgment was in favor of the heirs of Margaret, and the defendants were evicted from the premises. The plaintiffs in the present ejectment derive their title to the tract thus evicted from William McClure through the defendants in the former suit; and this action was instituted in the court below to recover the tract of land in Mifflin township conveyed by William McClure to Francis McClure. Who the defendant below, Francis McClure is, and how he derived title from Francis McClure the 'original grantee, the paper-book does not inform us. We may assume that he is one of his descendants. Undoubtedly where there is a technical exchange of lands the law annexes not a mere implied covenant of warranty, but an actual warranty with a condition of re-entry, so that if the title to either tract of land turns out to be bad, and the party or his assigns should be afterwards evicted, he or they can recover back the other tract of land which was given in exchange. But to produce this legal consequence it is absolutely necessary that the word exchange — excambium— should be used. No other word can supply its place, however equivalent in signification. Co. Litt. 50 b, 51 b, 384 a. It has resulted from this old and well established rule of law that technical exchanges have been entirely abandoned in modern conveyancing, both English and American. The reason is obvious. It imposes on a purchaser of either tract the burden and risk of examining and being satisfied with not only tbe title of tbe land which he purchases but also that of the other tract which was exchanged for it. Hence mutual deeds of bargain and sale with the usual covenants of title are always preferred and adopted. Under these deeds the remedy of either party in case of eviction, is not re-entry upon the land given in exchange, but an action on the covenants to recover his legal damage from the covenantor or his estate.

It is clepr then that the plaintiff had no title at law to the tract' of land in Mifflin township, for which this ejectment was brought. Nor would the depositions of the witnesses, taken on the former trial for the land in Elizabeth township, supposing them to have been competent evidence in this action, nor the facts therein stated, supposing them to have been agreed to as a case stated by them, who were privies in title with the parties here, have been of any advantage to the plaintiffs. They proved indeed a parol agreement, to make an equal exchange of the respective parcels of land in question, but that agreement was consummated, not by a deed of exchange, but by mutual deeds of bargain and sale, each expressed to he for a pecuniary consideration.

Nor is it easy to perceive what equity the plaintiffs have to recover the land in Mifflin. Their remedy, and their sole remedy is upon their covenants of title. No offer was made to show any fraud or mistake, that might lead to a reform of the deeds which were actually executed. The parties were advised and rightly advised to make the exchange in the manner they did, by mutual deeds of bargain and sale, in order to avoid that perpetual cloud, which would have rested upon the title of both tracts, if they had executed a technical deed of exchange. We cannot of course inquire here whether there might not possibly have been an equity in the former action to resist a recovery by the heirs of Margaret McClure of the tract in Elizabeth township, if those heirs were at the same time the heirs of Francis McClure, and had inherited from him the land in Mifflin without at least a reconveyance of the land in Mifflin. No such equity seems to have been set up in that suit, or if it was, it did not avail the defendants. It is too clear .for argument that it gave the plaintiffs no equitable title to recover the land in Mifflin township which is the subject of the present ejectment.

Judgment affirmed.


author: Williams, J.

text:
    Dougherty versus The Commonwealth.
    1. In a trial for homicide, the record showed that the indictment was found in the Quarter Sessions; the defendant was admitted to hail by the
    Supreme Court, to appear at the Oyer and Terminer to answer the indictment at June sessions; a motion there by the defendant to quash the indictment was overruled, and the defendant pleaded; the jury found him guilty of manslaughter. On the 13th of July he was sentenced; on the 20th, a writ of error issued; on the 27th, the district attorney moved the court to certify the indictment into the Oyer and Terminer, “ nunc pro tunc, as of March 9th.” On the 29th, against the objection of the defendant, the motion was allowed. Held, that the record showed that the proceedings 'were irregular, and the sentence was reversed.
    2. The record appearing to be that of the Quarter Sessions, the recognisance to appear in the Oyer and Terminer, and the order to certify into that court, could not be divided from the other parts.
    3. The record showing that the defendant had been arraigned, tried, convicted and sentenced in the Quarter Sessions, the conviction and sentence were void for want of jurisdiction.
    4. The exclusive jurisdiction to try and punish homicides, is in the Oyer and Terminer.
    5. In capital felonies, it must appear by the record that the prisoner was present at the trial, verdict and passing sentence; his presence cannot be presumed.
    6. When substantive parts of a proper'record are wanting, they cannot be supplied by the presumption that all things were rightly done.
    7. The sentence in this case was held to be erroneous because the record did not show that the prisoner was present when the jury were sworn, and the verdict rendered; nor that he was asked if he had anything to say why judgment should not be pronounced against him.
    8. The Oourt of Quarter Sessions had authority to amend their record by the order nunc pro tune ; and the record was to be treated as if the certificate had been ordered on the 9th of March ; but the Oyer and Terminer could not obtain jurisdiction except by the transmitting the order duly attested from the Quarter Sessions.
    9. Such certificate should be filed in the Oyer and Terminer and noted on the docket, that the jurisdiction might appear from its own record.
    10. The Oyer and Terminer and Quarter Sessions in the same county should keep distinct records. •
    11. Cathcart v. Commonwealth, 1 Wright 110 ; Dunn v. Commonwealth, 6 Barr 385 ; Taylor v. Commonwealth, 8 Wright 131, remarked on.
    October 2d 1872.
    Before Thompson, 0. J., Read, Sharswood and Williams, JJ.
    Writs of error and of certiorari to the Court of Quarter Sessions and Oyer and Terminer of Armstrong county: No. 144, 145, 146, 147, to October and November Term 1871.
    These writs brought up the proceedings on the trial of Daniel A. Dougherty, for the murder of Joseph Stinel.
    The record from the docket of the Oourt of Quarter Sessions showed that at the March Term 1871 of that court, No. 1, an indictment against Dougherty for the murder of Stinel was found a “ true bill.” The defendant being in prison, a habeas corpus was issued from the Supreme Court, and on the 9th of March he entered into recognisance with sureties before that court for his appearance “ at the next Court of Oyer and Terminer, to be held, &c., on the 1st Monday of June next, to answer the indictment,”' &c.
    On the 6th of June 1871, a motion of the defendant to quash the indictment, was on the same day overruled, and the defendant pleaded “not guilty,” and on the 7th a 'jury (who are named in the record), found the defendant guilty of manslaughter. On the 10th of June, on motion of E. S. Golden, Esq., of counsel with the prisoner, ten days were allowed for filing reasons for a new trial. This was followed by this entry:—
    “ And now, to wit, 18th July. 1871, Daniel A. Dougherty, the defendant, comes into court, and the court sentenced the said Daniel A. Dougherty to pay to the Commonwealth fifty dollars fine, and be imprisoned in the Western Penitentiary of Pennsylvania, in Allegheny City, at separate and solitary confinement at labor, according to law, for four years and three months, to compute from this day, and to pay the costs of prosecution, and be in custody till complied with. By the Court.
    “ Attest: “ J. G. Parr, Clerk.”
    On the 20th of July writs of error and certiorari to the Court of Quarter Sessions, and like writs to the Court of Oyer and Terminer were issued. The record then proceeds:—
    “ 27th July 1871. The district attorney moves the court to certify this case into the Court of Oyer and Terminer, nunc pro tune, as of 9th March 1871.
    “ Same day, objections filed by defendant’s attorneys against making any change in the record.
    “ And now, to wit, 29th July 1871, on motion of district attorney, this indictment is- hereby certified nunc pro tune, as of 9th March 1871, from the Quarter Sessions into the Court of Oyer and Terminer, there to be heard in due course of law, the offence not being triable in the Court of Quarter Sessions. — Per Curiam.”
    Annexed to the foregoing there was sent up with the record, what was certified by the presiding judge to be the original minutes of the Court of Oyer and Terminer, which had never been entered on any docket.
    It was certified also by the president judge,'that there is no separate docket of the Court of Oyer and Terminer in Armstrong county, and that the record of cases certified into that court is 'continued at the original entry in the docket of the Quarter Sessions. These minutes and the certificates did not appear on the paper-book, and as they are found at large in the opinion of the Supreme Court, as delivered by Judge Williams, they are not stated here.

      The defendant removed the record to the Supreme Court; the errors assigned were : — •
    As to the record of the Quarter Sessions :
    1 and 3. The Court of Quarter Sessions assumed jurisdiction to try the indictment and sentence the defendant.
    4. The Court of Quarter Sessions certified the record nunc fro tunc into the Court of Oyer and Terminer.
    As to the record in the Court of Oyer and Terminer :
    1 and 2. The Court of Oyer and Terminer tried and sentenced the defendant, no indictment having been found in that court, or certified from the Court of Quarter Sessions.

      J. Gilpin and E. S. Golden, for plaintiff in error,
    cited, as to jurisdiction, Mills v. Commonwealth, 1 Harris 630; Collins v. Collins, 1 Wright 387; Act of March 31st 1860, §§ 31, 32, Pamph. L. 437, Purd. 255, pl. 31, 32. As to amendment: Gardner v. Post, 7 Wright 19; Wright v. Hart, 8 Id. 454; Stout v. Stout, Id. 457; McManus v. Cassidy 16 P. F. Smith 260; Act of March 31st 1860, supra, §§ 11, 12, 13, 53; Purd. 251, 259, pl. 11, 12, 13, 53. Presumptions will not be made in such cases in aid of the record: Dunn v. Commonwealth, 6 Barr 385. When the record is made up it cannot be contradicted : Taylor v. Commonwealth, 8 Wright 131; Cathcart v. Commonwealth, 1 Id. 108; Roberts v. Orr, 6 P. F. Smith 181.
    There was no argument for the Commonwealth.
   The opinion of the court was delivered, January 9th 1872, b'y

Williams, J.

These writs bring up the records of the Court of Quarter Sessions and the Court of Oyer and Terminer of Armstrong county, showing the trial of the plaintiff in error for the murder of Joseph Stinel, of said county, on the 14th of October 1870; and his conviction of manslaughter, upon which he was sentenced to the payment of a fine of $50 to the Commonwealth, and to separate and solitary confinement at labor, in the Western Penitentiary, for four years and three months, to be computed from the date of the sentence.

It is not alleged that the prisoner did not have a fair and impartial trial, but the complaint is that he was not tried by a court having jurisdiction of the crime with which he was charged; aad if this be so, then his conviction and sentence cannot stand. What then are the facts as shown by the records ? A bill of indictment, charging the prisoner with the murder of the said Joseph Stinel, was submitted to the grand jury, at No. 1, March Sessions 1871, of the Court of Quarter Sessions of said county, and was by them found a true bill and returned into said court on the 7th of March 1871. Having been brought into the Supreme Court on process, the defendant, on the 9th of March 1871, entered into a recognisance with sureties conditioned for his appearance in the Court of Oyer and Terminer to be held at Kit-tanning, in said county, on the 1st Monday of June next thereafter, to answer the indictment, &c., and not to depart the court without leave. On the 6th of June 1871, his counsel moved the court to quash the indictment, and the same day the motion was overruled by the court; and the defendant being then arraigned,pleaded not guilty. On the 7th of June 1871, a jury being called, came, &c., twelve honest, lawful men, duly selected and sworn according to law, who respectively say that they find the defendant guilty of manslaughter. On the 10th of June 1871, the court entertained a motion for a new trial and granted leave to defendant’s counsel to file reasons therefor within ten days thereafter. On the 18th of July 1871, the court sentenced the defendant to pay a fine, &c., and be imprisoned in the Western Penitentiary of Pennsylvania, in Allegheny City, at separate and solitary confinement at labor, according to law, for four years and three months, and to pay the costs of prosecution, &c. On the 27th of July 1871, the district attorney moved the court to certify this case into the Court of Oyer and Terminer, nunc pro tunc, as of the 9th of March 1871. The same day objections were filed by the defendant’s attorneys against making any change in the record; and on the 29th of July 1871, on motion of the district attorney — so the record reads — this indictment is hereby certified nunc pro tunc- as of 9th March 1871, from the Quarter Sessions into the Court of Oyer and l’erminér, there to be heard in due course of law, the offence not being triable in the Court of Quarter Sessions. These are the material facts touching the trial of the prisoner, as shown by what appears to be the record of the Court of Quarter Sessions, at No. 1, March Sessions 1871, as certified and brought up with the writs in these cases. But it is alleged on behalf of the Commonwealth that the prisoner was in point of fact tried, convicted and sentenced in the Court of Oyer and Terminer of said county— and not in the Court of Quarter Sessions — and that all the entries subsequent to the 9th of March 1871, when the defendant gave bail for his appearance in the Court of Oyer and Terminer, constitute the record of the Court of Oyer and Terminer, with the exception of the order of the 29th July 1871, certifying the indictment from the Court of Quarter Sessions into the Court of Oyer and Terminer, as of the 9th of March 1871. But how can we separate the entries, and divide the record into three parts; arid declare that the first and last portions constitute the proper record of the Court of Quarter Sessions, and the intermediate portion the record of the Court of Oyer and Terminer? The entries follow each other in chronological order, and they all appear to be made in the ease of The Commonwealth v. Daniel A. Dougherty, at No. 1, March Sessions 1871, of the Court of Quarter Sessions. The motion of the defendant’s counsel, on the 6th of June 1871, to quash the indictment, is shown to have been made in the Court of Quarter Sessions, not only by what appears to be the record of that court, but by the paper filed in the case and annexed to the record, containing the motion made by the defendant’s counsel, the ruling of the court thereon, and the bill of exception sealed thereto by the presiding judge. If then, the motion to quash the indictment was made and overruled in the Quarter Sessions, as shown by the record and bill of exception, how can it be presumed or intended from the entry which -immediately follows, of the same date, that the defendant was arraigned and pleaded not guilty in the Court oí Oyer and Terminer ? Manifestly, if the record is to be our guide, he was arraigned in the same court in which the motion to quash the indictment was made by his counsel. So far then as appears by the record of the Court of Quarter Sessions, the defendant was arraigned, tried, convicted and sentenced there. And if so, the conviction and sentence are void for want of jurisdiction in the court to try the defendant for the crime with which he was charged. While the Quarter Sessions had jurisdiction and power, under the Act of the 81st of March 1860, by its grand jury, to find the indictment charging the defendant with murder, it had no jurisdiction or power to try and punish him for the crime. Exclusive jurisdiction and power to try and punish all persons charged with any murder, manslaughter or other homicide, is given to the Courts of Oyer and Terminer by the act; and, under its provisions, whenever any indictment is found in any Court of Quarter Sessions for these or any other crimes or offences not triable therein, it is the duty of the said court to certify the same into the Court of Oyer and Terminer next to be holden in such county, there to be heard and determined in due course of law. The Court of Quarter Sessions, therefore, had no jurisdiction or power to try and punish the defendant; and if, as appears by the record, he was tried, convicted and sentenced therein, the whole proceedings must be regarded as null and void.

But if what purports to be the record of the Court of Quarter Sessions, clearly appeared to be the record of the Court of Oyer and Terminer, it is so fatally defective that the conviction and sentence could not be allowed to stand. While the record shows that the defendant was arraigned, and pleaded not guilty, on the 6th of June 1871, it does not show that he was present in court the next day when the jqry were called and sworn, nor when they rendered their verdict. It does not appear by the record that the defendant was present in court between the 6th of June 1871, when he was arraigned, and the 13th of July 1871, when he came into court and received his sentence. Nor can his presence be presumed. In capital felonies, it must appear by the record that the prisoner was present at the trial, verdict and passing of the sentence. It was so decided in Dunn v. The Commonwealth, 6 Barr 385; and the sentence there was reversed because it did not sufficiently appear by the record that the prisoner was present at the trial, particularly at the rendition of the verdict, nor when sentence was passed. Nor do the cases of Cathcart v. The Commonwealth, 1 Wright 110, and Taylor v. The Commonwealth, 8 Id. 131, establish a different rule. If, as said in the former case and quoted approvingly in the latter, there is a presumption in criminal as well as in civil cases that the proceedings were regular, and it is incumbent on the plaintiff in error to show by the record that errors were committed before we can interfere, it was not intended to assert, as the opinions in these cases clearly show, that where “the substantive parts of a proper record” are wanting that their existence can be supplied by the presumption that all things were rightly done. In neither of these cases was there any allegation that the prisoner was not present when the verdict was rendered, or when the sentence was passed. In the latter case it is said : “ But taking the record as it stands we have the facts distinctly appearing of the arraignment in court of the prisoner; of his presence when the jury were selected and sworn, when the verdict was rendered, and when the sentence was pronounced. The presumptions spoken of and referred to in these cases are: that the jury were properly sworn, when there is nothing on the record indicating any irregularity; that the prisoner had counsel, when there is nothing on the record to show that he was deprived of the right; and that he might have polled the jury if he had chosen so to do, if the record shows that he was present when the verdict was rendered. These and the like presumptions may doubtless be made, but not such as would supply the substantive and material parts of a proper record.” In Prine v. The Commonwealth, 6 Harris 104, Gibson, C. J., said: “Never has there heretofore been a prisoner tried for felony in his absence. No precedent can be found in which his presence is not a postulate of every part of the record. He is arraigned at the bar; he pleads in person at the bar; and if he is convicted, he is asked at the bar what he has to say why judgment shall not be pronounced against him. These things are matters of substance, and not peculiar to trials for murder; they belong to every trial for felony at the common law, because the mitigation of the punishment does not change the character of the crime.” The record before us, as we have seen, does not show that the prisoner was present when the jury were sworn or when they rendered their verdict; and, though it shows his presence when the sentence was passed, it does not appear that he was asked if he had anything to say why judgment should not be pronounced against him. Whether then it be the record of the Court of Quarter Sessions, or of the Court of Oyer and Terminer, the conviction and sentence of the prisoner cannot be allowed to stand. If he was tried in the Quarter Sessions, the sentence is void for want of jurisdiction in that court to try and punish him for the crime with which he was charged. If he was tried in the Court of Oyer and - Terminer, the sentence is erroneous because the record does not show that he was present .when the jury were sworn and when the verdict was rendered, nor that he was asked if he had anything to say why judgment should not be pronounced against him.

But as the record purports and appears to be the record of the Court of Quarter Sessions, it must be so regarded and treated; and we now turn to the other record annexed to and sent up with the writs in these cases, and which purports to be the record of the Court of Oyer and Terminer, in the case of The Commonwealth against the prisoner, at No. 1, March Term 1871, and is certified by the presiding judge to be the original minutes of the Court of Oyer and Terminer in that case, which have never been spread on any docket. The record is in these words :—

‘.And now, to wit, 6th June 1871, half past 8 o’clock A. M., the court met. Present, &c. Defendant’s counsel moves the court to quash the indictment, which was argued by the counsel. Half past 10 A. M., motion overruled by the court, and the prisoner being arraigned, at 11 o’clock A. M. commenced to call a jury. Three men were sworn to 12 o’clock, when the court adjourned to half past 2 o’clock p. M. And now, 2 o’clock and 80 minutes, the court met agreeably to adjournment, and proceeded to call the jury. And now, 4 o’clock p. M., the panel of jurors summoned being exhausted, the court award a writ of tales eireumstantibus, and thereupon the sheriff, A. J. Montgomery, is ordered to call the said talesmen, which he proceeded to do, and worked to 6 o’clock, and only eight jurors sworn and paneled. And the court order the sheriff to summon fifty more tales jurors, and the court adjourned to half past 8 o’clock A. M., Wednesday, June 7th. And now, to wit, 7th June 1871, .the court met agreeably to adjournment, and the sheriff returned thirty talesmen, and were all called and challenged for cause. 12 o’clock M., 7th June 1871, the court ordered a venire to the sheriff for twenty more men as talesmen, and adjourned to half past 1 o’clock p. M. Half past 1 o’clock P. M., 7th June 1871, the court met, all present, and proceeded to call the jury. 4 o’clock p. M., same day, jury filled .and the case opened by D. Barclay. And now, 6 o’clock p. M., June 7th 1871, the court adjourned to Thursday the 8th inst., at half past 8 o’clock A. M. And now, to wit, Thursday, June 8th 1871, 8 o’clock and 30 minutes A. M., the court met, all present. And now, 12 M., the court adjourned to 2 o’clock P. M. And now, 2 o’clock P. m., the court met, and now, 6 o’clock P. M., the court adjourned to 8 o’clock and 30 minutes A. M. Friday morning. And now, to wit, 8 o’clock and 30 minutes, the court met, all present; 6 o’clock p. M., testimony closed on both sides. And now, 6 o’clock P. M., the court adjourned till 8 o’clock and 30 minutes past 8 o’clock A. M., June 10th 1871. And now, to wit, 10th June 1871, 8 o’clock 30 minutes A. M. the court met, Mr. Swartzwelder addressed the court, and E. S. Golden, Esq., the jury, followed by Governor Johnston. 12 o’clock M. the court adjourned to 1 o’clock and 15 minutes ; when the court met, Governor Johnston proceeded with his address to the jury. About 4 P. M. the jury retired, and were out about one hour, when they( brought in a verdict of guilty of manslaughter, when the court-adjourned to Tuesday, the 11th day of July, at 9 o’clock A. M.”

Here the minutes of the trial end, and upon a separate paper annexed to the record is found the following:—

“ And now, to wit, July 13th 1871, it is the sentence of the court that you, Daniel A. Dougherty, pay a fine of fifty dollars to the Commonwealth; that you be imprisoned by separate and solitary confinement at labor, according to law, in the penitentiary of the Western District of Pennsylvania, in the county of Allegheny, for the term of four years and three months; that you pay the costs of prosecution; and you are hereby committed to the custody of the sheriff of Armstrong county for the purpose of having this sentence carried into execution. — By the Court.”

These, then, are the original minutes of the Court of Oyer and Terminer touching the trial, conviction and sentence of the prisoner, and they speak for themselves. Do they, as suggested, contain the materials out of which a proper record can be made — - such a record as will support the conviction and sentence of the prisoner ?

But before proceeding to consider this question, let us see if -the Court of Oyer and Terminer had jurisdiction and power to try the indictment found against the prisoner in the Quarter Sessions. Under the Act of the 31st of March 1860, the Oyer and Terminer had exclusive jurisdiction and power to try and punish the crime with which he was charged; and it had power to try the indictment found against the prisoner in the Quarter Sessions if certified by the said court according to law, but not otherwise. Did the Court of Quarter Sessions then certify the indictment into the Court of Oyer and Terminer, there to be heard, and determined in due course of law ? As we have already seen, the Court of Quarter Sessions, on the 29th July 1871, made an order, declaring that “this indictment is hereby certified nunc pro tunc, as of 9th March 1871, from the Quarter Sessions into the Court of Oyer and Terminer, there to be heard in due course of law.” There can be no doubt of the power of the court to amend its record, as was done in this instance, by an order nunc pro tunc: Wilson v. The Commonwealth, 10 S. & R. 375; Rhoads v. The Commonwealth, 3 Harris 277. In the case last cited, Gibson, C. J., said: “ The power of 'the court to amend being established, the conclusiveness of the record, as amended, follows of course. Even were the amendment erroneous, the legality of it could not be inquired of collaterally; and not being under the Act of 1806, it could not be inquired of even directly on a writ of error.” According to the legal effect of the amendment, then, the Court of Quarter Sessions ordered the indictment to be certified from that court into the Court of Oyer and Terminer, on the 9th of March 1871, there to be heard in due course of law. But was the order, as made and recorded, sufficient to give the Oyer and,Terminer jurisdiction of the indictment without furnishing it with a certificate of the fact duly authenticated ? Recording the order on its own records, was not certifying the indictment into the Court of Oyer and Terminer as required by the act. It could be certified only by transmitting a certificate of the order, duly attested; and without such certificate the Oyer and Terminer had no more power, as it seems to me, to try the indictment than it would have had if no such order had been made. If any certificate of the order was furnished to the Oyer and Terminer, it should have been filed of record, and the fact noted on the docket, so that the jurisdiction of the court would have appeared from its own record. But there is nothing on the record of the Oyer and Terminer, showing that tlje indictment was certified into that court, and judged by its own record it had no jurisdiction of the case. But if the order of the Court of Quarter Sessions, as entered on its own record, was sufficient to give the Court of Oyer and Terminer jurisdiction of the indictment under the act, it does not appear that the prisoner was tried for jthe crime charged therein, and the record is in other respects utterly defective. So far as appears from the record, the prisoner was tried without any indictment or plea. The names of the jurors by whom he was tried do not appear in the minutes, and only eight of them appear to have been sworn. The prisoner was present in court the day the trial commenced, but it does not appear from the record that he was present on any subsequent day of the trial, nor when the verdict of the jury was rendered. And it does not appear from the verdict as recorded, that the jury found the defendant guilty of manslaughter, or of any other crime; nor that he was asked if he had anything to say why judgment should not be pronounced against him. We look in vain among these “ original minutes which have not been spread on any docket,” for the materials of a proper record; no legal alchemy can extract its “substantive parts” from such a mass of dross. Taking both records singly or together, and they do not contain enough to sustain the sentence pronounced against the prisoner.

If, as we are informed by the certificate of the presiding judge, there is no separate docket of the Court of Oyer and Terminer in Armstrong county, and the record of cases certified into that court is continued at the original entry in the Quarter Sessions, it is time that separate dockets were procured in which the records of each court can be kept without blending them with the records of the other. How such a practice as has been allowed to grow up in the.se courts must beget inextricable confusion, doubt and' uncertainty, is apparent from the records sent up with these writs. Each court is bound by law to keep a record of its own proceedings, but what kind of a record must that be which is so blended with the record of another court as to make it impossible to separate the one from the other ? There can be no excuse for a practice so vicious and obstructive to the right administration and true ends of justice. If the records in these cases had been properly kept, they would probably have shown that no error was committed in the trial and sentence of the prisoner.

And now, January 9th 1872, it is considered that the sentence be reversed, and that the prisoner, Daniel . A. Dougherty, be required to enter into recognisance, with sufficient sureties, in the sum of five thousand dollars each conditioned for his appearance at the next term of the Court of Oyer and Terminer succeeding this order, to be held at Kittanning, in and for the county of Armstrong, to answer the indictment found against him for the murder of Joseph Stinel, and not to depart the court 'without leave: and upon so entering into recognisance with sureties as aforesaid, it is ordered that he be discharged from imprisonment.


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    Bindley’s Appeal.
    1. Gregg died in 1857; in 1858, on petition of the administrator, part of his land was sold by order of the. Orphans’ Court, for payment of debts and distributed. In 1860, on a like petition, a further portion was sold for the same purpose ; in 1863, another portion was sold for a like purpose, one of the debts being a judgment against the decedent in his lifetime ; the purchaser asked that the sale be set aside oil the ground that the lien of the debts had expired. The application was dismissed and the sale confirmed. Held, that the proceeds of the sale of 1863 were distributable amongst the heirs to the exclusion of the common creditors, because as to them the lien of their debts had expired.
    2. The previous orders of sale although within five years of the death, did not extend the lien of the debts.
    3. The court had jurisdiction to order the sale, one of the debts being a judgment which as against heirs was indefinite, and the purchaser took a good title.

      4. The presentation of his claim within five years by a creditor before an auditor distributing under a previous sale, and the receipt of a dividend did not continue the lien.
    S. Such presentation was not “an action commenced” within the Act of February 1834.
    ' 6. The principal intention of the 24th sect, of the Act of 1834, was to promote security in titles in devisees, heirs and purchasers: no admission however solemn will dispense with an action.
    October 2d 1872.
    Before Thompson, C. J., Read, Sharswood and Williams, JJ.
    Appeal from the decree of the Orphans’ Court of Allegheny county: Of October and November Term 1869: No. 158: In the distribution of the estate of 0. Ormsby Gregg, deceased.
    The decedent died in February 1857, and administration of his estate was granted to R. Biddle Roberts, who in 1858 obtained an order from the Orphans’ Court to sell the real estate of the decedent for the payment of debts, some of which were of record-The administrator sold real estate under this order, and the proceeds were distributed amongst the creditors of the decedent.
    On the 14th of September 1860, the administrator %gain petitioned the court, referring to the former proceedings, and setting out that since then he had ascertained that the decedent ‘had died seised of nine other lots of real estate, and prayed for an order of sale for the payment of the unpaid debts. An order was accordingly granted, to which the administrator returned that he had sold one lot for $280. This sale was confirmed October 27th 1860.
    On the 6th of June 1863, the administrator presented a third petition to the Orphans’ Court, setting forth the former proceedings, and also that there were “ still due of the debts and liabilities” $3226.16, and praying for the sale of the real estate of the decedent, which still was unsold, for the payment of those debts. On the 20th of June, an order for sale for that purpose was aecordingly granted, and on the 2d of January 1864, the administrator returned that he had sold part of the real estate to Alexander Chambers, part to other persons named, and that part remained unsold for want of buyers. The sales so reported were confirmed on the same day.
    On the 31st of January 1864, Chambers presented a petition to the Orphans’ Court, setting forth amongst other things, the above-mentioned sale to him, &c.; he further averred that when the order of sale under which he had purchased was obtained, the decedent had been dead more than five years, and there was therefore no lien which gave the Orphans’ Court jurisdiction tQ decree a sale, and prayed the court to set aside the sale on that ground.
    On the same day, the administrator filed an answer to the petition, setting out as was stated in his foregoing petitions, and the proceedings under them; he also averred that one of the debts was a judgment recovered against the decedent in his lifetime, on which there was due a balance of about $200, &c., and that therefore the Orphans’ Court had jurisdiction to decree the sale. After argument, the petition of Chambers was on the 14th of April dismissed.
    In 1868, the administrator filed his final account, in which he charged himself with the proceeds of the real estate not included in the former distribution, and with some personal estate since received. He took credit for the judgment mentioned in his answer, and for expenses of administration, &c.,'leaving for distribution a balance of $3051.81.
    J. B. Sweitzer, Esq., was appointed auditor to report distribution of this balance.
    Before the auditor the heirs of the decedent claimed the proceeds of the real estate, alleging that the debts had lost their lien, by the lapse of five years since the decedent’s death before the order of sale was obtained.
    The auditor concluded his report, saying: * * * “ The real estate was sold to pay the debts enumerated in the former report of the auditor, and the money arising therefrom is now on hand for distribution, it matters not here whether they were liens or not. Parties cannot dispute it — the auditor cannot inquire into it, and we therefore reject the claim of the heirs to any part of it, and distribute it among the creditors.”
    Isaac Gregg, Sidney J. Robinson and Sarah Eaton, brother and sisters and heirs of the decedent, excepted to the distribution of the auditor.
    The court overruled the report, and decreed that the proceeds of the sale of the real estate, under the order of sale of June 20th 1863, be distributed amongst the heirs.
    John C. Bindley and other creditors appealed to the Supreme Court and assigned this decree for error.

      R. Robb, for appellant,
    cited Act of February 24th 1834, § 24, Pamph. L. 77, Purd. 285, pl. 82; McMurray v. Hopper, 7 Wright 473; Kerper v. Hoch, 1 Watts 9; Hemphill v. Carpenter, 6 Id. 23; Micheltree v. Veach, 7 Casey 456 ; Cobaugh’s Appeal, 12 Harris 145; 1 Story’s Eq. J., § 547; McClintock’s Appeal, 5 Casey 360; Sawyers v. Hicks, 6 Watts 76.

      J. Mellon, for appellees.
   The opinion of the court was delivered, January 9th 1872, by

Sharswood, J.

It is provided by the 24th section of the Act of February 24th 1834, Pamph. L. 77, that “ no debts of a decedent, except they be secured by mortgage or judgment, shall remain a lien on the real estate of such decedent longer than five years after the decease of such debtor, unless an action for the recovery thereof be commenced and duly prosecuted against his heirs, executors or administrators, within the period of five years after his decease.”

The court below were right, we think, in holding that the order of the Orphans’ Court for the sale of the real estate of the decedent, though within the five years, did not extend the limitation of the lien, and that after that period, and before the sale, the five years having expired, the lien of the debts was gone as against the heirs at law. This results very plainly from the language of the act and from the principle established in Maus v. Hummel, 1 Jones 228, where it was held that when suit is brought within the time, yet if the land is not taken into execution within five years from its expiration, it vests absolutely in the heirs, and that a purchaser at a sheriff’s sale, subsequent to such expiration upon a proceeding commenced within the first seven years (as it was then — five now) acquires no title. It by no means follows, however, that the purchaser at the Orphans’ Court sale in this case did not obtain a perfectly good title — since the court had undoubted jurisdiction to order the sale without limitation of time by virtue of the existence of a judgment entered against the decedent before his death, and which appeared of record to be unsatisfied — the lien of which is as against his heirs indefinite. The purchaser was bound to inquire no further.

It only remains to consider whether the appellant, having presented his claim before the auditor appointed to report distribution of the proceeds of a sale made under a previous order of the Orphans’ Court within the five years, and had ay>ro rata dividend awarded to him, and confirmed by the court, his lien on th.e real estate of the decedent was .thereby kept alive and continued. The words of the act, as we have seen, are, “ unless an action for the recovery thereof be commenced and duly prosecuted.” These are strictly technical words, and according to the well established canons of interpretation, should be received in their technical signification : 1 Black. Com. 59, note. It is now, however, contended, although it is a ground which does not appear to have been taken in the court below, that the claim before the auditor was an action commenced against the administrator, and duly prosecuted to a decree — that the Act of Assembly does not speak of actions at common law — or in a court of common-law jurisdiction. Any querela, -any lawful complaint in any competent court, will literally answer the words of the act. At all events, if not within the letter it is within the spirit of the law. The appellant has given notice of his debt against the estate in a mode pointed out and authorized by law. There is great plausibility in this contention. We should remember, however, that the principal intention of the 24th section of the Act of 1884 was to promote the security and repose of titles in the hands of heirs and devisees as well as purchasers from them, and we think that it would imperil these objects to give the section so broad a construction as that now contended for. The leaning of this court, through the whole current of the numerous decisions upon this subject, has evidently been to favor the heir, and to require of the creditor the vigilant prosecution of his demand in the mode pointed out. It is evident that no admission, however solemn, will dispense with an action. An award, with all its conclusiveness equal to that of a judgment, would manifestly be inoperative. In illustration of this general remark, it will be sufficient to refer to the decision in Kerper v. Hoch, 1 Watts 9, considered by many of the foremost men of the bench and the bar, at the time, to have been rather an act of judicial legislation than of construction, and to the cases of Trevor v. Ellenberger’s Ex’rs., 2 Penna. Rep. 94, and Penn v. Hamilton, 2 Watts 53, in which the provisions of the Act of April 4th 1798, 3 Sm. L. 331, limiting the lien of judgments and providing for their revival by scire facias, though admitted to be inapplicable to a judgment against the personal representatives of a decedent, were extended by analogy to such a judgment: otherwise it might have followed that an action commenced against the personal representatives within five years from the death of the decedent, and duly prosecuted, wouid have continued the lien of the debt indefinitely. It was decided in McCurdy’s Appeal, 5 W. & S. 397, that this lien is subject to the same limitation in the hands of an administrator who has paid the debts out of his own funds, as they are in the hands of the original creditors; Loomis’s Appeal, 5 Casey 237; Demmy’s Appeal, 7 Wright 155 ; and it was barely held in Bredin v. Agnew, 8 Barr 233, that the substitution of the administrator of a decedent in a suit pending against him at the time of his decease, was in effect a new action; because at common law the suit abated, and the plaintiff was necessarily turned round to a new action, but that the 26th and 27th sections of the Act of February 24th 1834, Pamph. L. 77, providing in such cases that the personal representatives may be substituted or be compelled to come in by scire facias, might still with the strictest propriety be considered as a recommencement of the action. These considerations, we think, plead with sufficient force against the construction now set up on behalf of the appellant, without adverting to the practical difficulties which appear to impede the way in keeping alive the lien (when no action in the proper sense has been commenced) beyond the ten years immediately succeeding the death of the decedent. It is best, on the whole, in a question of this character, to adhere to the words in their obvious technical sense. It may be that many an innocent bon& fide purchaser for value from an heir or devisee, relying on the plain words of the statute, and finding no action commenced within the five years, and no sale by order of the Orphans’ Court within that period, has accepted the title without considering it to be necessary to examine the record of the settlement of the administration account.

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


author: Agnew, J.

text:
    Neel et al. versus McElhenny et al.

    1. S. claimed title to Land against J. by twenty-one years adverse holding. J. gave in evidence a lease of the land by him within the twenty-one years, in which S. recognised J.’s title. Declarations of J. made after the twenty-one years, were evidence to show that he was holding as trustee for S., and not by absolute title.
    2. J. permitting S. to hold the land as his own for twenty-one years under an alleged trust, made the title of S. perfect.
    3. Where one holds land for himself, taking the profits to himself exclusively for twenty-one years, with no evidence to stamp upon it a different character, the presumption, except as to co-tenants, is that the possession is adverse.
    October 2d and 3d 1871.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 15, to October and November Term 1870.
    This was an action of ejectment for 100 acres of land in Mifflin township, brought by William Neel, Samuel C. Neel, Thomas Neel, the minor children of John Neel, deceased, and others, against John McElhenny and others, minor children of Mary McElhenny, deceased. Under the rule of the District Court the plaintiffs filed their abstract of title, viz.:—
    The plaintiffs claimed:
    1. As children and heirs of Samuel O. Neel, deceased, he having been a son and heir at law of John Neel, who died March 22d 1801.
    2. As heirs at law of Samuel C. Neel, who held by a deed of partition dated March 29th 1810, between Samuel C. Neel, John Neel, and others, heirs of John Neel.
    3. By virtue of the adverse possession of Samuel C. Neel and as heirs of John Neel, deceased.
    The defendants pleaded, “not guilty,” and filed their abstract of title denying every specification of the plaintiffs’ claim.
    They also specified in their abstract as follows:—
    John Neel the elder died seised of the premises intestate in 1801, leaving a widow and seven children, of whom (General) John Neel was one.
    By agreement of March 29th 1810 and June 11th 1811 of widow and heirs, by which the property became vested in General John Neel.
    Release, August 18th 1820, Samuel- C. Neel to General John Neel.
    Sheriff’s deed, August 12th 1824, to Jordan Stewart for Samuel 0. Neel’s interest in the premises.
    Sheriff’s deeds, November 20th 1827, of General John Neel’s interest in the premises to Uriah Applegate and Robert 0. Thompson; assignment on Applegate’s deed, December 3d 1836, to Thompson.
    Deeds, March 1st and April 1st 1837, Thompson to General John Neel and George Kirkpatrick, and March 16th 1839, Kirkpatrick to General John Neel.
    Deed, March 13th 1845, Jordan Stewart to General John Neel, for Samuel C. Neel’s interest in the premises.
    Lease, March 12th 1849, General John Neel to John and Thomas Neel, heirs of Samuel C. Neel, deceased, witnessed by William Neel and Samuel C. Neel, for the premises for three years and agreement of same date on same-paper, between Samuel C. Neel and his sons John and Thomas Neel, for the personal property and keeping the family of Samuel C. Neel on the premises; this agreement witnessed by William and John Neel.
    The Statute of Limitations.
    The cause was tried March 3d 1869, before Kirkpatrick, J.
    The plaintiffs gave evidence by a number of witnesses tending to show adverse possession of the premises by Samuel C. Neel, deceased, the father of some and grandfather of others of the plaintiffs, for some twenty-three years before his death, which occurred in 1850 or 1851. They also gave in evidence the agreement of March 20th 1810, between the widow and heirs of John Neel (the first), deceased, Samuel 0. and General John Neel being two of them, by which they agreed to part the lands of the decedent into four lots; valued them and allotted them to four of the heirs; the premises in dispute having been allotted to General John; the allottees to pay the other heirs their shares of the valuation as stipulated in the agreement.
    The plaintiffs having rested, the defendants gave in evidence a deed of confirmation of the foregoing partition, dated June 11th 1811, between the heirs; also, release, August 18th 1820, from Samuel C. Neel to General John Neel for the consideration of $350 of Samuel C.’s interest in the premises. They also gave in evidence the sheriff’s deed to Stewart of Samuel’s interest; deed, Stewart to John Neel, for same; sheriff’s deed to Applegate and Thompson for John Neel’s interest and their conveyances and George Kirpatrick’s to John Neel as mentioned in the defendants’ abstract of title. They gave evidence also tending to disprove the adverse possession of Samuel C. Neel and his successors.
    The defendants gave in evidence a paper containing:—

      1. Article of agreement dated March 12th 1849, between Samuel C. Neel of the first part, and John and Thomas Neel “ sons of the said Samuel,” of the other part, by which Samuel gave up and delivered to his sons all his personal property, consisting of farmjng stock and utensils and household furniture, for three years, “ to take charge of and be under their control and management as they may think best,” &c., in consideration of which the sons were “ to take care of and provide for their four brothers * * * during the term above specified,” &c. This agreement was witnessed by General John Neel.
    2. Another agreement, viz.:—
    “And further this Artickel of agreement Maid and agreed a,pon this twelth of March A I) 1849 by and between John Neel of Mifflin Township, &c., of the first part, and John and Thomas Neels sunes of Samuel C. Neel of the other part all of the said Township of Mifflin, Witnesseth that the said John Neel of the first part, agrees to leese or Rent for the full Tarme of three yeares from the Date above all the lease land with the Buildings and improvements there on that the said Samuel C. Neel now occupies at this Time in concideration of the above priveleges of the above Des cribed place as the above agreement shewes the said John and Thomas Neels agrees to pay apurportionabel share of all taxes per yeare During the tarm of three years from this Date in witness, &c.
    John Neel. [l.s.] Thomas Neel, [l.s.] [l.s.]
    Signed sealed and delivered in presents of us Samuel C. Neel Wm. Neel.”
    They gave in evidence a paper containing a notice dated December 25th 1851, from General John Neel, directed to Thomas Neel, W. W. West or John Bonater, and any others as occupying under Thomas Neel, to quit on the 1st of April 1852, the premises leased to Thomas Neel under the agreement of 1849; on which paper was a surrender in writing dated January 1st 1852, by John Bonneter to General John Neel, “under w'hose title and consent said Thomas Neel and W. W. West claims,” &c., containing also a statement that General John Neel gave to Bonater possession of the premises, lease to be executed thereafter.
    The plaintiffs in rebuttal called Thomas Neel, and proposed to prove by him the purpose .for which the article of agreement exhibited on the part of the defendants, as between John Neel and Thomas Neel and others, was got up, and the.reason of its getting up, for the purpose of showing why John Neel’s name was to it at all: to show the condition of Samuel C. Neel at the time, and showing his habits of life, and his want of attention to his family.
    Also to prove a conversation the witness had with General John Neel relating to this property — General John Neel stating that he was simply holding this property in trust for the children of his brother Samuel C. Ndel; for the purpose of showing that the titles exhibited by the defendants in this case were held merely in trust for Samuel C. Neel and his children.
    Also, that he had a conversation with General John Neel, and that he held this property for the benefit of the witness and his brothers.
    These offers were objected to by the defendants, rejected and several bills of exception sealed.
    Samuel C. Neel testified: that he approached his uncle John Neel to purchase this property in question, about six months before the colonel died, which was about August 1867.
    The plaintiffs proposed to prove by the witness, that on this occasion he saw his uncle and proposed to buy the property now in dispute; that he had refused to sell to him on account of the interests that his brothers had, stating that they were all interested alike, and that he could not give it to one any more than to another.
    Witness was also asked to state, “ in the settlement of your uncle Thomas’s real estate, whether or not the title was not in the same condition as between Samuel C. Neel and your uncle John Neel.”
    J. M. Snodgrass having testified that he had had a 'conversation with General Neel relative to the premises, the plaintiffs’ counsel proposed to prove by the witness that at the time he had this conversation with John Neel, he stated to him, if not in these words, in words to the effect, that he was holding this property for the sons of his brother Samuel C. Neel.
    Samuel Gould was called and asked to state “ whether or not you ever heard any declarations on the part of John Neel, relative to the difficulty that he had in securing this property for the children of Samuel C. Neel.”
    These offers were severally objected to by the defendants, rejected and bills of exception sealed.
    The court refused points presented by the plaintiffs. These refusals with parts of the charge and rulings on questions of evidence were excepted to by the plaintiff; but it is not necessary to refer to any of them, except the third point, viz.:—
    “ Twenty-one years’ possession, unmolested, without consideration shown, is to be presumed to be an adverse possession.”
    The verdict was for the defendants.
    The plaintiffs sued out a writ of error and assigned twenty-seven errors.
    The 10th, 11th, 12th, 13th, 15th, 16th and 18th were respectively the bills of exception on the questions of evidence as above given.

      J. R. Large, for plaintiffs in error,
    cited Cummings v. Cummings, 5 W. & S. 552; Galbraith v. Elder, 8 Watts 103.

      T. Ewing and R. Woods, for defendants in error,
    cited Porter v. Mayfield, 9 Harris 263; Robertson v. Robertson, 9 Watts 36; Barnet v. Dougherty, 8 Casey 371; Kellum v. Smith, 9 Id. 158; Lynch v. Cox, 11 Harris 265.
   The opinion of the court was delivered, October 16th 1871, by

Agnew, J.

In this case but a single error deserves notice. It runs, however, throughout the assignments of error numbered as 11, 12, 13, 15, 16 and 18. Some of these standing alone are rather indefinite, but others can be sustained. The purpose of the offers contained in the bills therein set forth was to show the relation of John Neel as trustee for Samuel C. Neel his brother. It is quite possible the court below rejected the evidence of a trust upon the supposition that it was in violation of the provisions of the Act of 22d April 1856, because there was no writing to evidence it, and because it was barred by the proviso to the 6th section. But the purpose of the offer was not to claim title through the trust. The plaintiffs had rested their claims of title upon a possession of more than twenty-one years, under the Statute of Limitations, and to rebut the adverse character of that possession, the defendants had given in evidence a lease dated 12th March 1849, from Samuel C. and John Neel to John and Thomas Neel, sons of Samuel C. Neel. Though this paper bears date after the twenty-one years were alleged to have run against the title of John Neel, yet the inference to be drawn from it by a jury tended strongly to rebut the adverse character of Samuel C. Neel’s previous possession. The question would very naturally arise, if Samuel claimed title in his own right, why did he join with John in the lease ? But if John Neel were a trustee only of the legal title for Samuel, and admitted his relation, there would be nothing inconsistent in Samuel’s joining with John in the lease; and it would not contradict the fact that Samuel was holding for himself during the previous period of twenty-one years, and, therefore, that his possession was adverse to any claim of title by John Neel for himself. Whatever might have been the power of Samuel to sustain himself under the trust alone, before the statute had closed against John; clearly if John suffered him to hold the land as his own under an alleged trust for the statutory period, the statute closed the door against John’s title, and made perfect the title in Samuel. So far then as the lease had tended to contradict the adverse character of Samuel’s possession, it was Samuel’s right to rebut it by showing, by the admitted trust, that the instrument was not inconsistent with his previous possession in his own right. These offers should therefore have been received as rebutting evidence.

In connection with this, it was the intention of the plaintiffs, in their third point, the refusal of which is assigned as the 23d error, to ask the court to say to the jury that twenty-one years of unmolested possession, unqualified by any circumstances or considerations to the contrary, is to be presumed to be an adverse possession. It is very difficult to understand the point as drawn, and the judge therefore cannot be censured for declining it, especially in view of the rule of the court; but certainly where one holds a possession for himself, taking the profits of the land to himself exclusively for a period of twenty-one years, with nothing in the evidence to stamp upon it a different character, his possession is presumptively adverse to all others (excepting in the case of co-tenants), for he who holds for himself necessarily does not hold for another. The point when properly understood was important to the plaintiffs’ case in furnishing a rule to the jury from which they might infer the adverse character of the possession of Samuel C. Neel. But it was the fault of the plaintiffs that the point was so obscurely drawn. For the reasons already given, however, the judgment is reversed, and a venire facias de novo is awarded.