author: hy Thompson, C. J.

text:
    Haak versus Linderman & Skeer.
    1. An agreement was, “H. hath sold and doth agree to deliver to P. a ear, for which P. agrees to pay $600 in manner following, * * * H. reserves the right from said, car until fully paid, but said P. shall have the use of said car from this date, should P. fail to comply with this agreement, II. shall have the right to take the car from P. as his property, and P. will forfeit the amount ppid on said agreement.” Held, to be a conditional sale not a bailment of the ear and being in P.’s possession although most of the purchase-money was unpaid, could be levied on by his creditors.
    2. There can be no valid lien as against creditors for the purchase-money of personal property, when it is delivered on a conditional sale.
    3. Chamberlain v. Smith, 8 Wright 431, distinguished.
    March 22d 1870.
    Before Thompson, C. J., Agnew and Sharswood, JJ. Read, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lehigh county: No. 30, to January Term 1870.
    This was a feigned issue under the Sheriff’s Interpleader Act, in which John Haak was claimant and plaintiff, and 0. B. Linderman and C. O. Skeer, partners as Linderman & Skeer, defendants. The issue was directed July 5th 1869; and tried before Longaker, P. J., September 13th 1869.
    On the 24th of May 1867, Haak, the plaintiff, and one B. F. Palm, entered into the following agreement:—
    “ The said John Haak for the consideration hereinafter mentioned doth covenant and hath sold and by these presents doth agree to deliver to the said B. E. Palm a certain house car, for which the said Eranklin Palm agrees to pay the sum of $600, in the following manner, to wit(Then follow the stipulations for payment, the last being in twelve months from the date of the agreement.) “ The said John Haak reserves the right from said car until fully paid, but the said B. E. Palm shall have the use of said car from this date; should the said B. E. Palm fail to comply with this agreement the said John Haak shall have a right to take the said car from the said B. F. Palm as his property and the said B. F. Palm will forfeit the amount paid on said agreement.”
    The plaintiff proved on the trial that but $150 had been paid by Palm on account of the car.
    The defendants then gave in evidence a judgment recovered by them, April 9 th 1869, against Palm, for $384.27, a fi. fa!, issued April 10th, and levy on the car in possession of Palm. He called Palm, who testified that Haak’s name was on the car when the agreement was entered into and about a year afterwards he had his own name put on it. On cross-examination the plaintiff asked the witness:
    “ Why did you have your name put upon the car; [and if at the time did you not know that you had only a use of the car and that you were not the owner until you had complied with the terms of the agreement?”]
    The defendants objected to that part of the question in brackets, the objection was sustained, and a bill of exceptions sealed. The witness answered that he had his name put on, because it was ( objected in Philadelphia, that it would be mis-sent.
    The court charged the jury: “You are instructed that the agreement between the plaintiff and B. F. Palm is a conditional sale and a fraud upon the creditors of defendant on the execution : it is therefore your duty to render a verdict in favor of the defendants.”
    The verdict was for the defendants.
    The plaintiff took out a writ of error, and assigned for error the charge of the court and ruling as to the evidence.

      JE. Holben and JE. Haney, for plaintiff in error,
    referred to Clark v. Jack, 7 Watts 375; Myers v. Harvey, 2 Penna. R. 481; Rose v. Story, 1 Barr 195; Sargent v. Giles, 8 N. Hamp. 325 ; Henderson v. Lauck, 9 Harris 359; Chamberlain v. Smith, 8 Wright 433; Clemens v. Davis, 7 Barr 264 ; Rowe v. Sharp, 1 P. F. Smith 30.

      R. JE. Wright, for defendants in error,
    cited Jenkins v. Eichelberger, 4 Watts 121; Martin v. Mathiot, 14 S. & R. 214; Clow v. Woods, 5 Id. 277; Rose v. Story, supra; Waldron v. Haupt, 2 P. F. Smith 408; Welsh v. Bell, 8 Casey 12; Becker v. Smith, 9 P. F. Smith 469.
    May 5th 1870,
   The opinion of the court was delivered,

hy Thompson, C. J.

— The material inquiry in this case is, whether Palm received the car in question from the plaintiff, under a contract of bailment, or on the foot of a purchase. If the former, plaintiff would be entitled to his property in whosesoever hands it might be found claiming against the bailment. If the latter, the creditors of the vendee could levy on it and sell it as the property of the vendee, whether it was paid for or not, and whether the contract for the sale stipulated for the title remaining in the vendor until paid for or otherwise. No valid lien for purchase-money where the property is delivered on-a contract of sale fe worth anything : 14 S. & R. 214, 1 Barr 190, 8 Wright 431,1 P. F. Smith 28, 2 Id. 408. Any number of cases to the same effect, might be added to the list.

The .contract between the plaintiff Haak and Palm, is in writing, and so plain as to be unsusceptible of any misunderstanding. In the outset it says, “ that John Haak for the consideration hereafter mentioned, doth covenant, and hath sold, and.by these, presents doth agree to deliver, to the said Bi F. Palm, a certain house car, for which the said Franklin Palm agrees to pay the sum of $600 in the following manner.” Then follows the stipulation for the payments to be made at several times during a year, within which the whole was to be paid “with legal interest on $300 until paid.” It would surpass the keenest astuteness to make out of this anything but an actual sale, and it was accompanied with an actual delivery of the car. But then follows the clause in the same agreement that “the said John Haak reserves the right from said car until fully paid, but the said Palm shall have the use of said car from this date; and should the said B. F. Palm fail to comply with this agreement, the said John Haak shall have a right to take the said car from said Palm, as his property, and the said Palm will forfeit the amount paid on said agreement.”

No doubt this might be a valid lien or arrangement as between the parties, and it is likely the parties had nothing else in view. But the policy of the law against secret liens renders it utterly worthless as against creditors, and this the cases cited abundantly show. This last clause was in no sense a bailment, but a remedy to enforce performance on part of the vendee, and on failure of which to provide satisfaction to the vendor. Not one of the cases cited by the plaintiff sustains this as a bailment. The furthest they go is, where the contract is a clear bailment with a super-added condition, that at the end of it, or during its continuance, the bailee should have the option to purchase. Such was the case of Chamberlain v. Smith, 8 Wright 431, supra. The possession was in that case parted with, only on the footing of a bailment. Before the option was exercised the bailee there parted with the property by sale, and it was sold on execution against his vendee. The bailee gave notice of title and sued the parties and sheriff seizing the same, and recovered. That accords with the principle stated in the outset of this opinion, and is supported by all the authorities. The other cases cited by the plaintiff in error stand on the samé footing. The delivery of the property was on a contract of bailment, with a stipulation to purchase. Here the delivery was on a contract of sale, with a reservation of a right of reclamation if not paid for. This right could be exercised only on the grounds of a lien existing in favor of the vendor, which was void as against creditors. These views are very clearly brought out in the case last above cited, and in Rowe v. Sharp, 1 P. F. Smith 26; and Waldron v. Haupt, 2 Id. 408. The argument of the learned counsel for the defendants in error is a very clear demonstration of the accuracy of the charge of the learned judge to the jury, which consisted in a mere direction to find for the defendant, having first stated that the transaction as shown was a conditional sale and a fraud upon creditors.

There was no error committed in the charge or in the assign-' ment of error on the bill of exceptions, and the judgment is affirmed.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Russell versus The First Presbyterian Church of Pottsville.
    1. A church sued their treasurer for funds in his hands; he pleaded specially that they belonged to another church. After the case was on for trial, the Second Church asked to be permitted to interplead in the suit. Held, that the application was properly refused.
    2. The defendant by suggestion that the claimant was in privity with the plaintiff, and that he was willing to pay the money to whom it might be found due, and praying for substitution, might bring in the claimant by rule or scire facias, or the claimant would be permitted to appear and plead gratis.

    3. The plea not containing allegations of privity and willingness to pay, was defective.
    4. The defendant was treasurer of both churches, which were in negotiation for uniting, and he had given a receipt as treasurer of the first. Held, that hejnight show that he had given the receipt in mistake, that the union wouldilbe completed,’ and that the money belonged to the Second Church.
    5. A receipt is open to contradiction, explanation or correction, and may be shown to have been given under a mistake either of fact or law.
    6. The treasurer of a corporation cannot set off his own debt, when sued for money in his hands.
    7. Without an order from the corporation he cannot pay the funds in his hands or appropriate them to himself.
    January 20th 1870.
    Before Thompson, C. J., Read, Sharswood and Williams, JJ. Ag-new, J., at Nisi Prius.
    Error to the Court of Common Pleas of Schuylkill county:Of July Term 1869, No. 17.
    This was an action of assumpsit, brought to December Term 1868, by The First Presbyterian Church and Congregation of Pottsville against Thomas M. Russell, to recover money which it was alleged the plaintiff had received as treasurer of the plaintiffs, and which he declined to pay over.
    The defendant pleaded the general issue, and also a special plea, in which he averred that the money claimed in the suit “ came into his hands at the time he was acting in the double capacity of treasurer for said plaintiff, and also as treasurer for the Second Presbyterian Church of the borough of Pottsville. That the said money belonged to the said the Second Presbyterian Church, and not to said plaintiff, and that this defendant has been notified and required to pay over said money to said last-mentioned corporation, and a bill in equity filed in this court to compel him to do so, and he believes it is his legal and moral duty to do so.”
    The cause was tried, April 18th 1869, at a special court, before Elwell, P. J., of the 26th District.
    At the trial, the Second Presbyterian Church of Pottsville presented a petition entitled of this suit, setting forth “ that the fund demanded by the plaintiff in this case arises from the sale of the property of the Second Presbyterian Church of Pottsville. That said defendant received said funds while he was the treasurer of said Second Presbyterian Church, that in law and in equity the funds belong to the Second Presbyterian Church, and therefore pray this court to be permitted forthwith to interplead with said plaintiff to try the title or right of defendant to said funds in the hands of Thomas M. Russell, and claimed by your petitioners,” &c.
    The court refused the petition, and sealed a bill of exceptions.
    The plaintiff gave in evidence the following receipts:—
    “ Received, Pottsville, October 18th 1867, per Solomon Foster, one thousand dollars of the treasurer of the borough council, it being the first payment for the Second Church property.
    “ T. M. Russell,
    “ Treasurer of 1st P. C.”
    “ Received, Pottsville, February 5th 1868, of S. Foster, one thousand dollars in money, and three bonds of the borough of Pottsville, for two thousand dollars each, being the balance of purchase-money, &c., he received for the sale of the Second Presbyterian Church, corner of Market and William streets.
    “ T. M. Russell.”
    The plaintiffs gave in evidence the election of the defendant as their treasurer, October 7th 1867; his election as trustee, April 6th 1868; his resignation as treasurer and trustee at a meeting of the trustees at which he was present; his report of same date of receipts and expenditures as treasurer of the plaintiffs, from October 1st 1866 to April 6th 1868, to which was appended the following memorandum:—
    “I hold in my hands on the sale of the Second Church property $2000, — less $750 retained for the church, to return to the Church Extension Board, &c. $1250
    Three borough bonds of $2000 each, payable in one, two and three years, to be invested when our church matters are amicably arranged and settled . . . 6000
    $7250”
    It was admitted that before the commencement of this suit, the funds in his hands had been demanded from the defendant. After other testimony, merely formal, the plaintiffs rested.
    The defendant gave evidence that donations to churches from the church extension committee of the Presbyterian Church (Old School), are made on the condition that when a church which has been aided, changes its church connection, the money given is to be refunded. He gave evidence also that the Second Church had received from the church extension committee a donation of $750; also that at a meeting of the trustees of the First Church the defendant, in presenting his account, said that he was morally bound to refund the $750, which was acquiesced in without any formal resolution.
    The defendant offered the charter of Second Presbyterian Church of Pottsville, granted 7th June 1859, to show that there was a church organization .and corporation of that name, and to show the nature of such corporation. To be followed by evidence,
    “ 1. That Thomas M. Russell was the treasurer of said Second Presbyterian Church at the date of the receipts given in evidence by plaintiff and for years prior thereto and ever since.

      “ 2. That the moneys for which said receipts were given were the proceeds of the sale of the church edifice of the Second Presbyterian Church, made by such church, and belonged to said church, and not to the plaintiff.
    “ 3. That at the time of the receipt of such moneys there was contemplated a consolidation and merger of the two corporations, and the signature of Thomas M. Russell to one of the receipts as treasurer of the First Presbyterian Church was given in view of the consummation of such contemplated consolidation and merger, but that such receipt was not authorized by said Second Church, but was given by defendant under the mistake and belief that the proposed consolidation and merger would take place.
    “ 4. That the First Presbyterian Church failed to comply with and keep the terms that constituted the conditions upon which. said proposed merger and consolidation was to take place, and that none ever did take place.
    “ 5. That the funds received by defendant ás aforesaid have been demanded of him by said Second Presbyterian Church, and a bill in equity filed in this court requiring him to account to said church for the same.
    “ This is offered to show that the funds for which this suit is brought, never belonged to the plaintiff, and that the defendant is bound in law to account for the same to the said Second Presbyterian Church.”
    The offer was rejected and a bill of exceptions sealed.
    He further offered to prove that there existed in Pottsville a separate church organization, known as the Second Presbyterian Church of Pottsville. “ That the First Presbyterian Church claimed that the Second Church became merged into and consolidated with it, and that all the members thereof, and the property of said Second Church, were merged into and consolidated with said First Church.
    “ That the First Church has in pursuance of such claim taken all the personal chattels of said Second Church and appropriated the same to its own use. That the said First Presbyterian Church claims the funds in suit on the ground that all the real estate, including the church edifice of said Second Presbyterian Church, became the property of said' First Church, by virtue of said alleged merger and consolidation. That said fund is part of the proceeds of sale of said church edifice. That said Second Church has no assets or means for the payment of its debts, except the property claimed and appropriated by said First Church as aforesaid.
    “ That said Second Church is indebted to said Thomas M. Russell in the sum of.......$509.50
    And also the further sum of . . . . . 310.55
    Making a total of ....*. . $820.05”
    The offer was rejected and a bill of exceptions sealed.
    The plaintiffs in rebuttal gave evidence for the purpose of showing that the board of trustees had assumed the repayment of the $750 to the church extension committee, but did not acquiesce in the defendant retaining it.
    The court charged:— * * *
    “ Having obtained possession of the fund in controversy from the plaintiff by accepting the ofiice of treasurer, the defendant is estopped from asserting title thereto, either in himself or a stranger. It would be contrary to the. terms of his contract, to sound policy and good faith, to allow the treasurer of a corporation of his own motion, to acknowledge adverse claims to funds in his hands, and thereby compel his principal, whose interest he ought by all means in his power to protect, to establish its title.

      “ He was not appointed to distribute tbe assets of tbe cburcb, but to receive both on trust and pay out upon orders drawn by the proper officers, and at tbe expiration of bis office to band over to bis successor.
    “ It appears by tbe testimony of W. R. Smith and others, that tbe board of trustees informally assented that tbe defendant might retain tbe sum of $750, out of tbe moneys received by him, and pay tbe same into the cburcb extension fund, thereby acknowledging that tbe original donor of that sum, to tbe Second Presbyterian Cburcb of Pottsville, was morally if not legally entitled thereto.
    “ If tbe defendant bad paid over this sum before revocation of tbe authority thus given, such payment would have been to that extent a defence. But it is admitted that before tbe institution of this suit tbe plaintiff demanded, by its attorney, tbe funds in tbe bands of tbe defendant, and there being no evidence of payment at any time of said sum, tbe plaintiff is entitled to recover tbe same in this action.
    “ Tbe right of tbe plaintiff to recover depending upon tbe written documents in evidence, and tbe facts shown by tbe defendant failing to establish a defence, we instruct you, that tbe plaintiff is entitled to recover tbe sum of $2000, less tbe sum of $443.91 paid out by defendant, with interest from tbe commencement of this suit.”
    Tbe jury found a verdict for tbe plaintiffs for $1597.84.
    Tbe defendant took a writ of error, and assigned for error,
    1. Tbe refusal to grant tbe petition of tbe Second Cburcb to be permitted to interplead.
    2 and 3. Tbe rejection of bis offers of evidence.

      G. R. Kaercher and F. W. Hughes, for plaintiff in error.
    The defendant, when be gave the receipts, was treasurer of both churches, the president of the trustees who paid the money knew that it came from the property of the Second Cburcb, and there: fore be was dealing illegally with the defendant in taking bis receipt as for the First Church: Story on Agency, § 235; Adams’ Equity 189. As to the interpleader: Brightly’s Eq. Jur., §§ 13, 18; Eddy v. Smith, 13 Wend. 490; Moses v. Macferlan, 2 Burrows 1010; 2 Comyn on Contr. 1. As to the 3d assignment: 2 Redfield on Railways 659, 660.

      S. Foster, Jr., and J. W. Ryon, for defendants in error.
    The defendant received the money as agent of the plaintiffs, and is estopped from denying their right: Story on Agency, § 217; Hill v. Frazier, 10 Harris 320; Turnpike v. Watson, 1 Rawle 330; Galbraith v. Elder, 8 Watts 81; Fowler v. Pittsburgh, F. Wayne and Chicago Railroad Co., 11 Casey 22; Millingar v. Hartupee, 3 P. F. Smith 362. The defendant could not set off a debt due to him by the Second Church against a debt due by him to the First Church: besides, he held the fund for a specific purpose: Cox v. Prentiss, 3 M. & S. 344; Jarvis v. Rogers, 15 Mass. 397; Parkist v. Alexander, 1 J. C. R. 397; Turnpike v. Watson, 1 Rawle 330; Bank of U. States v. Macalester, 9 Barr 475; Bank of N. Liberties v. Jones, 6 Wright 536.
   The opinion of the court was delivered, January 31st 1870, by

Sharswood, J.

The 1st assignment of error is, that the court refused to allow the Second Presbyterian Church of Pottsville to become a party defendant to the action. They applied by petition to that effect on the day of the trial. But it would have been contrary to all our practice on the subject of interpleading to have permitted it. Though admitted as a party to the record, they would not thereby have been made parties to the issue, nor could the jury have been sworn as to them. J[The only personal action in which the right of interpleader existed at common law was detinue: 3 Reeves 449. It was applied to a few other cases, such as quare impedit, and writs of right of ward: 2 Story’s Eq. Juris. 804. The defendant in detinue could plead that the chattel for which suit was brought was held by him as bailee or depositary ; that it was claimed by a third person in privity with the plaintiff, and that he was willing to deliver it to the party who was legally entitled to it. Thereupon a process of garnishment issued to compel such third person to appear and defend, or else disclaim his title. ^This practice has been adopted by the courts of this state, and extended to other forms of action. The want of a court of chancery rendered this necessary to prevent a failure of justice. For although a defendant might protect himself by giving notice of the suit to the claimant, and calling upon him to appear and take defence in his name, yet the latter not being a party' to the record, would not be concluded by the judgment without [proof of the notice. If that proof should fail the defendant would be remediless, and thus might be subjected to two judgments against him for the same cause of action by two different plaintiffs. Hence the practice was early introduced of compelling such third person to become a party by rule or scire facias founded on a suggestion of the defendants, and no doubt he would be admitted to appear and plead gratis without order or process on. such suggestion: Coates v. Roberts, 4 Rawle 109; Wallace v. Clingen, 9 Barr 51; Tritt v. Crotzer, 1 Harris 458; McMann v. Caruthers, 2 Am. L. Jour. 133. It is the defendant, however, who is to be protected. He must, in due time, make the suggestion, show that the claimant is in privity with the plaintiff, state his willingness to pay the money to the one found entitled to recover it, and pray for the substitution. \ Taking the special plea filed in this case to have been intended as a suggestion, it was defective in all these respects. In fact, as it after-wards appeared, the .defendant had a defence personal to himself, which he attempted to set up to the claim of the Second Presbyterian Church. There was no error, therefore, certainly not at that stage of the proceedings, in refusing to allow the Second Presbyterian Church to intervene and become a party to the suit.

The 2d error assigned is in the rejéction of an offer made by the defendant. The evidence produced on the part of the plaintiffs showed that the defendant had been elected their treasurer October 7th 1867, followed by a receipt signed by him as such treasurer, acknowledging to have received from the borough of Pottsville $1000, it being the first payment for the Second Church property, and another receipt of a subsequent date, signed by defendant, but not as treasurer, for a further sum of $1000, and three bonds of the borough of Pottsville for $2000 each, being the balance of the purchase-money received for the sale of the Second Church property. This certainly made out a primá facie case for the plaintiffs. The defendant then offered the charter of the Second Church, to be followed by evidence that he was the treasurer of the Second Church at the date of the receipts, that the money for which the said receipts were given belonged to said church, that he had signed the said receipt first named as treasurer of the First Church under the mistake that a merger of the two churches was about to take place, but that such merger never was consummated, and the Second Church held him answerable to them for the money. This offer was rejected. In this we think there was error. Admitting that the signature to the first receipt was evidence, not only that the first but the second payment was made to the defendant, and received by him as treasurer of the First Church, it was primá facie only, certainly not conclusive. There was nothing to work an estoppel in favor of the First Church. They had done nothing on the faith of it. It did not preclude the defendant from showing that in truth he received the money as the treasurer of the Second Church, and. that he signed the receipt as treasurer of the plaintiffs under a mistake of fact, that he supposed that the Second Church was or would be merged in the First Church. A receipt is like any other parol admission by the party, open to contradiction, explanation or correction. It may be shown that it was given under a mistake, either of fact or law: Thompson v. Faussat, Peters’s C. C. R. 172; Moore v. The Commonwealth, 8 Barr 260; Bell v. Bell, 2 Jones 235; Grue v. Kline, 1 Harris 60. It would certainly be very inequitable if, in consequence of such a mistake, the defendant should be compelled to pay the money twice, as the Second Church could not have been prevented by his receipt from recovering the money from him, if the facts stated in his offer were, as we must assume, true."I The learned judge was right in rejecting the evidence contained in the 8d assignment of error. The treasurer of a corporation cannot set off a debt or independent claim when sued for the money in his hands. He received the funds to hold at the order of the corporation as their officer, and without such order he cannot pay or appropriate them either to himself or others. There is fairly to be implied, from the relation he sustains, an undertaking not to plead a set-off, but to account and pay over whatever money came to his hands in that character: Middletown and Harrisburg Turnpike Co. v. Watson, 1 Rawle 330; Henniss v. Page, 3 Whart. 275; Bank of the United States v. Macalester, 9 Barr 475; Reed v. Penrose’s Ex’rs., 12 Casey 214.

Judgment reversed, and venire de novo awarded.


text:
    Brennan’s Estate.
    1. Courts are the best exponents of their own rules.
    2. The Supreme Court will reverse when the court below has plainly disregarded or violated its own rules.
    3. A rule of court required auditors to certify with their report that they had given notice of the time of filing. The court confirmed a report without such certificate. The Supreme Court reversed the decree.
    4. An administrator allowed a widow to receive the proceeds of a note which she claimed as her own, the court disallowed commissions because this was a breach of duty. Held, that if the note belonged to the decedent the administrator should have been surcharged with it, and the amount taken as a payment on the widow’s distributive share.
    January 20th 1870.
    Before Thompson, C. J., Read, Sharswood and JJ. Agnew, J., at Nisi Prius.
    Appeal from the decree of the Orphans’ Court of Schuylkill county. In the matter of James Brennan’s Estate: Of January Term 1870.
    The decedent died intestate October 27th 1865, leaving a widow, Catharine Brennan (since intermarried with John Divinney), and four collateral next of kin, but no children. Administration of his estate was granted to William Yerner, who, on the 9th of April 1867, filed an account showing in his hands a balance of $4737.63. The heirs filed exceptions to the account; that the administrator should have charged himself with $500, the value of a leasehold of the decedent; that the commissions, $484.44, were unreasonable and that payments to the widow should not have been introduced into the account, being matters of distribution. On the 1st of July 1867, Thomas H. Walker, Esq., was appointed auditor to restate the account and make distribution. The auditor appointed the 20th of July 1867 for a hearing; the court upon application of exceptors continued the appointment from term to term until March Term 1868, and on application of the administrator and widow continued it until July Term, and again until September Term 1868.
    There was evidence that the purchase of the leasehold had been contracted for by the decedent, but that it had been conveyed to his wife; also, that George Oantner, -who was one of the sureties of the administrator, had borrowed $500 from the decedent, that the money had been produced by the wife, and Oantner gave Brennan a note for it, payable in twelve months with interest, that he had paid the money to Mrs. Brennan after the decedent’s death; Mrs. Brennan had possession of the note; the administrator knew all about the note; there was other evidence for the purpose of showing that the money was Mrs. Brennan’s. The heirs gave evidence that after the decedent’s death, Mrs. Brennan told a witness that there was in a pocket, which witness saw, money amounting to $10,500. Another witness testified that the decedent, a short time before his death, told him that he had accumulated money and bonds to the amount of $10,000, and that decedent showed him money and bonds ; witness also saw money, notes, and bonds in decedent’s possession to the amount of $11,000.
    The auditor sat on the 2d of September 1868 to hear the parties before making distribution, the. several parties in interest being represented. The hearing was at the request of the widow adjourned until the 26th of the same month.
    The auditor sat according to adjournment on the 26th of September, when the widow applied for a continuance for the purpose of taking testimony; the application was resisted by the heirs. The record does not show.that anything further was then done.
    The following is a rule of the Orphans’ Court of Schuylkill county:—
    “ 68. Whenever any matter' in the Orphans’ Court shall be referred to an auditor, his report shall be made on the first day of the next term, unless the court specially extend the time; and such report when made shall be marked by the clerk, filed and confirmed nisi. And unless exceptions be filed within ten days, the clerk shall enter the report confirmed absolutely: Provided that in cases where the court shall especially extend the time for making the report, the auditor shall give notice to the parties.who appeared before him, or their attorneys, of the time of making the report, a certificate of which shall be filed with the report.”
    The auditor reported, charging the administrator with $550, the value of the leasehold; he further reported, that inasmuch as there had been no exception that the administrator had not charged himself with the Oantner note, he could charge him with its amount, but because the administrator had neglected to charge himself with it, he deemed it such a breach of trust under the circumstances as to deprive him of his commissions, he accordingly struck them from his credits. He found that Mrs. Brennan had received the $10,500, said to have been in the pocket; he found also that part of the $10,500 had been included in the inventory, leaving in her hands $6105. Upon a restatement of the administration account, he found that after deducting the expenses of the audit there were in the administrator’s hands $8125.97, which, with the amount ($6105) in the widow’s hands made the whole sum for distribution $14,230.97; of this the widow would be entitled to $7115.48, and having, according to the finding, already received $6105, he reported that there was still payable to her $1010.48; he distributed the remaining one-half amongst the other next of kin of the decedent.
    There was no certificate of the auditor accompanying the report or filed with it, that he had given notice to the parties of the time when he would make the report.
    On the 12th of October 1868, on motion of the attorney for the heirs the court confirmed the report of the auditor nisi.
    The administrator and widow filed exceptions, October 19th. One of the exceptions of the widow wTas, that the auditor had not given notice of the time of filing his report.
    The court recommitted the report to the auditor, directing that the surcharge of $550, the value of the leasehold, should be stricken out; and refused to grant the application made by the widow for a rehearing, which she asked on the ground that she had not had notice of the time of filing the auditor’s report. The auditor made another report in accordance with the instructions of the court.
    This report having been confirmed, the widow and administrator appealed to the Supreme Court, in several specifications assigning the confirmation for error.

      F. W. Hughes (with whom was G. F. Farquhar), for appellants.
    The court was bound by its own rules: Alexander v. Alexander, 5 Barr 279; Green v. Hallowell, 9 Id. 53; Ankrim v. Sturges, Id. 275. The Supreme Court will reverse for an obvious mistake in interpreting its rules by a lower court: Dailey v. Green, 3 Harris 118; Whitehall Township, 11 Wright 156.

      J. W. Ryon (with whom was J. Ellis), for appellees.
   The opinion of the court was delivered, February 7th 1870, by

Sharswood, J.

These are appeals by the administrator and the widow of James Brennan (Rush), deceased, respectively, from the final decree of the Orphans’ Court of Schuylkill county, confirming the report of an auditor appointed to restate and settle the account of the administrator, and to distribute the balance found to be in his hands. The principal assignment of error is, that the court below confirmed the report in violation of their own written rules. It has been said, indeed, more than once, that, courts are the best exponents of their own rules: Ellmaker v. Franklin Ins. Co., 5 Barr 189; Dailey v. Green, 3 Harris 118, 128; yet it would often work the greatest injustice if they were to be allowed plainly to disregard or violate them. ■ This court has often reversed for such cause. When the rights of parties depend upon the observance of court rules and orders, there is every reason why we should insist on it: Alexander v. Alexander, 5 Barr 277; Green v. Hallowell, 9 Id. 53; Ankrim v. Sturges, Id. 275; In re North Whitehall Township, 11 Wright 156. Without going beyond what is strictly the record in this case, it is clear that the 68th rule of the court below was entirely disregarded. It provides that, where any matter in the Orphans’ Court is referred to an auditor, and the time for making his report is extended by a special order — “ the auditor shall give notice to the parties who appeared before him, or their attorneys, at the time of making the report, a certificate of which shall be filed with the report.” The auditor in the case was appointed July 1st 1867. Two orders were subsequently made continuing his appointment, and of course extending the time for filing the report on March 30th 1868, and June 11th 1868. Whether notice of the filing was given or not, the record shows no such certificate to have been filed with the report as the rule plainly requires. Had the appellants appeared and filed other exceptions only, it might have been considered as a waiver of compliance with the rule. But the widow did except in the court below on this very ground. The record does not show any special reference back to the auditor for a special purpose at June Term, even if that, as the court below appeared to think, would have varied the case. We must reverse the decree on account of this manifest error, and as the record is necessarily to be remitted for further proceedings, we think it proper to say that the widow should have an opportunity, either to produce testimony before the auditor, or to ask for issues upon the questions of the deductions from her distributive share made on account of the Cantner note received by her, and of the alleged abstraction by her of the pocket found by the auditor to have contained $10,500 of the estate of the decedent — questions which, as it appears to us, are peculiarly proper for the decision of a jury, should the widow desire it. We are of opinion that there was also error in the learned court below in disallowing the commissions claimed by the administrator. The ground upon which this was done was, that the accountant had been unfaithful to his trust in giving up to the widow a note of George Cantner for $500, claimed by her to belong to herself, but found by the auditor to be part of the assets of her husband. Instead of surcharging the administrator with tbis amount, the auditor struck out the commissions amounting to $484.44, and the court was of opinion, on exception filed, that this was as favorable as the administrator had a right to expect, because the commissions were less in amount than the sum with which he ought to have been surcharged. But if he had been surcharged with this sum in his account, he would clearly be entitled to claim and receive it from the widow’s distributive share, as money paid and advanced by him to her in part of such share. Nothing is more common than for administrators to make such advances to distributees, and to be credited with them in the distribution account. Admitting that the note did belong to the decedent, and not to his wife, it was but such a payment in advance. The auditor, in point of fact, has charged this sum against the widow, adding to it the $10,500 said to have been in the pocket, and thus making $11,000. The estate then has lost nothing. .Why should this mistake, if mistake it was, be visited upon the administrator by the forfeiture of his commission? We perceive no good reason for it.

Decree reversed, and record remitted for further proceedings ; the costs of these appeals to be paid from the estate of the decedent.