text:
    LANCASTER COUNTY.
    January Term, 1882,
    No. 26.
    May 17th, 1882.
    Bott versus Stoner.
    1, In a suit against A. and B., as individuals, upon a promissory note made by them individually, commenced more than six years after the maturity of the note, but on which note there were recent payments of interest by A., an answer of B., in an equity suit with a third party, admitting that at the time the note was made, A. and B. were partners and sometimes gave obligations signed by them both as individuals, is inadmissible.
    2. Evidence of an acknowledgment of a debt barred by the statute of limitations, made within six years to an agent of the plaintiff, unaccompanied by evidence to show that the agent communicated to the defendant the fact that he was authorized to speak upon the subject with him, is inadmissible.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, aud Green, JJ.
    Error to the Court of Common Pleas of Lancaster County.

    Assumpsit, by Margaret Bott against Jacob Staman and J. C. Stoner. The defendant Stoner pleaded non-assumpsit, and non-assumpsit infra sex annos, upon which pleas the case was put at issue.
    The suit was brought upon a note in the following form:
    “$1000. Manor, April 1,1868.
    • ' “ One year after date we, or either of us, promise to pay Margaret Bott, or order, one thousand dollars, with interest at five J per cent., without defalcation, for value received.
    {50 Ct. 1 u. s. I Rev’ue f Stamp. )

    “Jacob Staman, “J. C. Stoner.”

      The following were the indorsements on it:
    “Received April 1st, 1869, fifty-five dollars, interest in full on within note to above date.
    “ J. S. M.
    “ $55. For M. B.
    “Received April 2d, 1870, the interest in full to date.
    “ Received May 13th, 1871, the interest in full to April 1st, 1871.
    “ Received May 18th, 1872, the interest in full to April 1st, 1872.
    “Received April 2d, 1873, the interest to April 1st, 1873, fifty-five dollars.
    “|55.
    “April-, 1874, Received interest in full for this year.
    “Received April 1st, 1875, of Jacob Staman, the interest on the within note to April 1st, 1875.
    “Levi IIarnish.
    “ Received May 13th, 1876, of Jacob Staman, the interest on the within note to April 1st, 1876.
    “ Abraham IIarnish.
    “May 19th, 1877, received interest in full on within note to April 1st, 1877.
    “ April 1st, 1878, received interest in full.
    “ Received May 29th, 1879, the interest for one year, fifty-five dollars. Interest by me.
    Her
    “ Margaret x Bott.
    “ Witness present, Mark.
    “Barnheed Mann, Far. $55. I confess it,
    Her
    “ Margaret x Bott. •
    Mark.
    “ Received April 1st, 1880, fifty-five dollars in full for interest to date of within note.
    “ $55.”
    Upon the trial in the Court below, before Livingston, J., the plaintifl' called the defendant Stoner, who testified, inter alia :

    (Being shown note.) “ That is my signature. I drew up the note. It is my writing. I wrote the first indorsement of interest on the note dated April 1st, 1869. None of the rest. . ... I do not know who made them. I don’t know who paid the interest. I did not. 1 didn’ tell Staman to pay the interest.....I was a partner in business when this note was given.' This note was not a partnership note. I was only a security for Mr. Staman on the note.....I was but a surety on the note. I don’t know how the money was obtained. ... I didn’t get any of the money.”
    Plaintiff then offered in evidence defendant’s answer in the equity suit of Miller, assignee of Staman v. Jacob C. Stoner et al., sworn to January 25th, 1881, and filed, for the purpose of showing that defendant, Stoner, and Staman were partners up to 1876, and that defendant, Stoner, and he signed notes, as this one is signed, as partners. The answer offered contained these paragraphs:
    “ All of said firms (Stoner & Staman, Peart, Stoner & Sta-man, Peart, Scofield & Co., and Peart & Scofield) had liabilities, and Stoner & Staman borrowed money for their partnership business and gave obligations therefor, signed sometimes Stoner & Staman, and sometimes Jaeob Staman and Jacob C. Stoner, each signing his own name.”
    “ When the firm of Peart, Stoner & Staman was dissolved, the interest of said parties still continued in the firm of Peart, Scofield & Co., until its dissolution in February, 1876, when Stoner and Staman sold their interests to Peart.” Objected to by counsel for defendant. The offer was disallowed, and plaintiff excepted.

      John S. Mann, for the plaintiff, testified inter alia:

    “ In 1868 I went to Mr. Stoner. He asked me whether I knew of any money. I told him I did; that Mrs. Bott had $1000 she offered to me.....He then told me to go and engage it for the firm — the money. He said they needed a heap of money. She then told me to tell him they could have it — the firm could have it. I told Stoner so.....He referred to the firm of Staman & Stoner.”

      Jacob Staman, for the plaintiff, testified inter alia:

    “ I paid the last and next to the last interest myself. .... If I didn’t pay it, Mr. Stoner did.....I do not know how this money was borrowed from Mrs. Bott, whether for the firm or not. It is too long ago.”
    The plaintiff then offered to prove by the witness:
    “ That in the spring of 1877, or at a time within six years next preceding the bringing of this suit, Mr. Harnish called on him, representing that he was authorized by plaintiff to see the parties to the note, for the purpose of collecting the unpaid interest for that year, and furthermore demanding payment .of the note, or some other satisfactory arrangement. Witness paid him the interest, and said that the note was all right. Witness then told Mr. Harnish that he would see Stoner, as Harnish had requested, and tell him what plaintiff required, to which Harnish acquiesced, requesting witness to report the result of the interview to Mrs. Bott. "Witness did see Stoner, and he acknowledged that plaintiff’s claim on note was right, and would pay it, unless plaintiff would agree to take a new note for it. Witness after that saw plaintiff and told her what Stoner had said, and she was satisfied.
    ' “ This to be followed by the testimony of Mr. Harnish, to the effect-that he had been authorized by plaintiff, in the spring of 1877, he having the note in suit with him, to see the parties to the note, she being physically disabled from attending to her out-door business ; that he saw Staman, who lived nearest, and what occurred and took place appears in the offer of Staman’s testimony; that he did not see Stoner, because Staman agreed to do so for him, Staman paying witness the interest for that year; that plaintiff had authorized witness to request Staman to see Stoner touching the payment of the note in suit; that witness did request Staman to see Stoner about the matter, with the understanding that Staman should report the result of the interview with Stoner to Mrs. Bott.”
    The offer was objected to, and was disallowed. .Counsel for plaintiff excepted.

      J. C. Stoner, recalled:
    “ Q. Did the firm give notes to different persons in the form in which this note was given, signed Jacob Staman, J. C. Stoner ? Did they raise money in that way ?”
    Objected to, and disallowed. The plaintiff excepted.
    The witness continued:
    “ I never paid any interest on that note. I wrote on the first receipt.....I made no entry of interest on the note, except the first payment of interest. I never engaged the money for the firm or for Mr. Staman.”
    The plaintiff then offered the note in evidence. It was not admitted, and plaintiff excepted.
    The Court then entered a judgment of non-suit.
    Plaintiff took a rule to show cause why the judgment of non-suit should not be stricken off, which the Court, April 3d, 1882, discharged.
    The plaintiff then took out a writ of error, assigning as errors the rejection of the offers of evidence, the entering of the judgment of non-suit, and the refusal to take it off.

      William JR.. Wilson, for plaintiff’ in error.
    What a party has stated in his answer in chancery is admissible: Greenleaf on Evidence, sec. 97, p. 136.
    A partnership is liable though only the names of the individuals are used: Bank v. Monteath, 1 Denio, 402 : Tams
      v. Hitner, 9 Barr, 441; Houghery ®. Striekler, 2 W. & S., 411.
    The real question was, whether the money was borrowed by the firm or by individuals. This was a question of fact for the jury, and the manner of the defendants in carrying on their business was material. The offer of the testimony of Staman, as to the acknowledgment of Stoner, should have been admitted: Wesner v. Stein, 1 Outerbridge, 322; Johns ®. Lantz, 13 P. F. Smith, 324; Senseman v. Hershman, 1 Norris, 83 ; Frey v. Holben, 11 W. N. C., 349.

      IP. M. North, for defendant in error.
    The note was apparently barred, and the plaintiff’had the burthen of removing the bar. Proof of the payment of interest by Staman did not prove a promise by Stoner, or create any liability against him: Zent v. Heart, 8 Barr, 337 ; Coleman v. Fobes, 10 Harris, 156; Bush ®. Stowell, 21 Smith, 208 ; Clark v. Burn, 5 Norris, 502; Lazarus v. Fuller, 8 Norris, 331; Wesner-®. Stein, 10 W. N. C., 479; Angelí on Limitations, sec. 260, and note; 2 Parsons on Notes and Bills, 658, note; Byles on Bills, page 282, and notes.
    He offered to show that the firm issued notes in this form, but not that they issued this particular note.
    The narr did not allege a partnership. The probata and allegata did not agree: Lee v. Conard, 1 Wh., 168.
    Any offer of proof which was to have the effect of a new promise, would be limited to such as were made to the plaintiff or her agent: Gillingham v. Gillingham, 5 Harris, 302 ; Emerson v. Miller, 3 Casey, 278-; Morgan®. Walton, 4 Barr, 321; Christy v. Flemington, 10 Barr, 129; Kyle ®. Wells, 5 Harris, 286.
    To bind a man by statements made to an agent he must have some information that the person spoken to is acting for the principal, and has authority to communicate the statements.
    May 29th, 1882.
   — Per Curiam:

This suit was-not against the defendants as partners, and the offer, the rejection of which is complained of in the first assignment, was rightly rejected. There was nothing in the evidence offered to show that Staman communicated to Stoner the fact that he was authorized by the plaintiff to speak with him on the subject, and the evidence offered was therefore rightly rejected.

Judgment affirmed.


source: Caselaw Access Project

author: — Per Curiam :

license: Public Domain

text:
    January Term, 1882,
    No. 3.
    May 17th, 1882.
    Carroll versus The Pennsylvania Railroad Co.
    1. In an action against a railroad company for injuries to the person, the plaintiff testified that, at about seven o’clock in the evening, he stood on the platform of the ticket office. A train was going east. He looked down the track eastward and saw no locomotive light and no train coming westward. Immediately after lookidg eastward he faced the other way and walked ten or fifteen feet to a pavement, intending to cross the north track and go around the caboose on the rear end of the train going eastward, on the south track. As he stepped on the north track a train coming west struck him and caused the injuries. He did not look just at this time. There was evidence that the engine of the train going west did not sound any alarm whistle or ring a bell. A witness for plaintiff testified that the west-bound train was standing in the depot, or a little below it, when the plaintiff was on the platform, and that when he got on the track he was in the light of the head-light. The above facts having been given in evidence by plaintiff Held, that the Court below was right in entering a judgment of non-suit.
    2. It is in vain for a man to say that he looked and listened, if, in despite of what his eyes and ears must have told him, he walked directly in front of a moving locomotive, and the injury received was attributable solely to his own gross carelessness.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Tuunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Lancaster County.

    Case by Robert Carroll against the Pennsylvania Railroad Compány to recover damages for injuries to the person of the plaintiff, caused by the alleged negligence of the defendant. On the trial in the court below, before Livinsston, J., the plaintiff testified, inter alia, as follows :
    “ On the evening of October 11th, 1879,1 went to the Pennsylvania Railroad depot, in Lancaster, to get a ticket to go home to Marietta......It was five minutes to 7 o’clock p.m......I came out of the ticket office or waiting-room. As I came out I saw a train passing east on the south track. .....The train was running very fast;.....in my opinion about ten or twelve miles an hour. I stood on the platform, outside of the door, in front of it, some seconds, while it was passing, waiting for it to get so near past that I could get around it; I was going around the caboose; about the time I thought I could get around I looked down the track eastward. I saw nothing ; no locomotive light...... There were lights in the depot. At .least I couldn’t tell that it was a locomotive light. I saw no train coming west when I looked. Right immediately after I looked eastward I faced to the right and walked off the end of the platform. I could have heard a train coming westward, I think, if one had been coming. I heard no train coming when I started off the platform. As I passed the pillar at the west end of the depot there was a gentleman standing there......I was walking very slow at the time, thinking to pass around the train that was going east. I made a step on the track near the water-plug. Some one caught hold of me. I was knocked from the rear from behind. It knocked me senseless..... I didn’t hear anything come that struck me; heard no bell, no whistle. The caboose of the train on the south track had just passed, and I was stepping over to go by. From where I stood on the platform at the door, to the place where I stepped on the north track, is about twelve or fifteen feet; it may be more. It is the width of the pavement and the length of the platform from where I stood to the pavement. .....I walked slowly, but did not stop. I judge it did not take me over a minute. I started up to go around the caboose immediately after I had looked to see if there was a train coming west. The east-going train made a good deal of noise. I could have heard a steam-whistle or a bell if it had been sounded on a west-bound train over that.
    “ My limb was amputated at the depot......Before I started from the door on the platform I looked and listened about a second or two, and could not see or hear any train coming west.”
    Upon cross-examination he said, inter alia:

    “ I then came out, stood on the platform of the gentlemen’s waiting-room a second or two, I suppose......I stood there on account of the train going east. "When I came out of the door the engine of the east-bound train was about the middle of the depot, as near as I can tell. I can’t tell where the engine was when I started from the door. I watched the train agoing by......I was on the pavement, or close to the pavement, as it (the caboose) passed. When I stepped on the track, after the caboose passed, there were no cars in front of me on either track. When I attempted to cross the railroad I was going southward..... I was trying to go straight across from the pavement across the railroad tracks; the crossing, I think; I was off the pavement......It was dusk; it was a level crossing — a grade crossing......I saw no train coming westward on the north track. I didn’t look for a train coming westwai’d just at that time. The south track was occupied by the eastward-bound train. I saw no train on the north track. I looked for a train on the north track when I stood on the platform. I looked eastward; I saw no train. I saw the track; could see it to the lower end of the depot and a little further. If there had been a locomotive on the north track, I don’t think I could have seen it. There is a bend there. I don’t think it could have come westward through the depot from the saloon below the depot without my seeing it, if I looked at that time. Just as I attempted to cross the track I was struck. I was not looking for a locomotive. Just at that moment my attention was drawn to the train going east at that time to get around it. If just at that time I had looked for a locomotive I could have seen it. I was trying to get by one and was struck by the other. When I was on the pavement, and before I stepped on the track, I could have seen the locomotive if I had looked for it. When I passed from the platform till I was struck I think I was in motion all the time, walked slow, didn’t stop. I walked outside the tracks. I stepped on the track right in front of the locomotive. It was not very far off when I stepped on the track. Heard no sound or bell rung at that time. I had looked and listened while on the platform, and I thought I could hear an alarm if there was one.”
    Upon re-examination be said, inter alia:

    “ After I looked at the east -bound train, I looked east and listened for a train, and, as soon as I had done so, I started to go across, around behind the east-bound train. I am not hard of hearing, and think I could have heard if notice had been given......My hearing was good, and my sight was good, and my entire physical condition good ; and if I had looked at the moment I put my foot on the track, I could have seen the approaching locomotive. I was looking to get around the other train though.”

      Conrad Johns, for the plaintiff, testified, inter alia:

    “ He was senseless after the engine struck him. The engine was going westward that struck him; That engine did not sound an alarm whistle or ring a bell while running through the depot. It came up very quietly. I could not hear that train because of the noise made by the train going east. I could see it, but not hear it.”
    Cross-examined:
    “ He stepped on the track right in front of the locomotive having a head-light. He was walking kind of away from it, and could not see it coming on behind. He had his back to the locomotive. He could not see without turning around. He was going a kind of along the track. If he had looked down the track at that time, he could have seen the train coming.”
    Re-examined:
    “ There was no watchman there that I saw that night. There may have been one on the south side. There was none on the north side.”

      Samuel Jones, for the plaintiff, testified, inter alia;

      “ The train that was coming west on the north track gave no alarm that I heard by whistle or bell. I cannot tell whether the engine whistled after Carroll was struck..... Of course I could have heard the alarm if they had rung a bell or whistle......I could not hear the train coming west. The other made too much noise, and it came up pretty quiet.”
    Cross-examined:
    “ When I came there I saw the head-light of the western-bound train. I took it to be standing still, I can’t say whether in the depot or a little below it. This was while Carroll was standing in the depot. I. didn’t see it start; didn’t notice it again until it came pretty close to Carroll. It was there, with head-light burning, when Carroll was on the platform......lie then had his back to the train, not right square. He was looking at the down train. He was not looking east. If he had looked east a body would think he could have seen the approaching train. I cannot tell whether he could have seen the head-light from where he stood or not. He may have stood too far back......I didn’t hear the whistle or the bell......The head-light showed a good deal of light. He was in the light of the head-light before he got on the'track. If he had turned and looked he could have seen the head-light.”

      Jerome Grubb, for the plaintiff, testified, inter alia:

    “ That train did not whistle or ring the bell before it struck Carroll.”
    There was further testimony to the same effect and as to the damages.
    The Court entered judgment of non-suit.
    The plaintiff then took a rule to show cause why the judgment of non-suit should not be stricken off, which the Court, April 3d, 1882, discharged.
    The plaintiff' then took out a writ of error, assigning as error that the Court erred in not setting aside the judgment.

      J. L. Steinmetz and Marriott Brosius, for plaintiff in error.
    If in the summary of facts there is a single one which justifies the non-suit, it must be either that the plaintiff did not look and listen, the instant he stepped on the track, or that the engine was in sight, when he did look from the platform before starting to cross.
    The legal standard is complied with, by stopping, looking, and listening, at a point sufficiently near the road to enable the traveller reasonably to assure himself that he is not in danger: Penna. R. R. Co. v. Ogier, 11 Casey, 60; Penna.R. R. Co. v. Ackerman, 24 P. E. Smith, 265 ; Phila. & Trenton R. R. Co. v. Hagan, 47 Pa. St.,, 244; Penna. R. R. Co. v. Bock, 12 Norris, 427 ; Phila. & Reading R. R. Co., v. Boyer, 1 Outerbridge, 91.
    Whether the engine was in view at the time he looked is left in doubt by the testimony. The fact that plaintiff testified that he did not hear or see it must take the case to the jury unless there is a conclusive presumption that a man must see what is visible. Take the two propositions that he must stop and listen when he puts his foot on the track, and must see what is visible, and there can never be a recovery against a railroad company for injuries.
    The presumption is that he looked and listened, and proof that he could have seen the engine will not take the case from the jury : R. R. Co. v. Weber, 22 P. F. Smith, 27 ; Same v. Same, 26 P. F. Smith, 157; Railroad Co. v. Weiss, 6 Norris, 447 ; Railroad Co. v. Hall, 11 P. F. Smith, 361.
    Having looked plaintiff had a right to expect that an approaching train would give some note of warning: Railroad Co. v. Hagan, 11 Wr., 244; Reeves v. R. R. Co., 6 Casey, 454.

      H. M. North, for defendant in error.
    If he did not see the train he was negligent — he is in the same position as if he saw but took no need.
    In Shaw v. Jewett, 13 Reporter, 23, Folger, C. J., said: “ Was the coming train so plain that he could and would have seen it if he had looked; that his not seeing it was proof that he did not look.”
    He was approaching a place of known danger. Had he stopped for one moment, he would have heard the noise of the approaching train. Had he used his eyes he might have seen it: P. & R. R. R. Co. v. Boyer, 9 W. N. C., 500, 1.
    The testimony on the part of the plaintiff showed contributory negligence on his part, and therefore it was proper for the Court to enter a non-suit.
    When the evidence is insufficient to warrant a finding of negligence, it is the duty of the Court to order a non-suit or to refuse to submit the question, as the case may require: Passenger R. W. Co. v. Boudrou, 11 Nor., 481.
    Where the facts are undisputed, it is not error for the Court to withhold the evidence from the jury: Hoag v. L. S. & M. S. R. R. Co., 4 Nor., 293 ; Catawissa R. R. Co. v. Armstrong, 2 Smith, 282; P. & R. R. Co. v. Yerger, 23 Smith, 121; Goshom v. Smith, 8 W. N. C., 289.
    If on the whole of the plaintiff’s evidence, the jury would not be justified in finding a verdict against the defendant, it is the duty of the Court to order a non-suit: P. & S. R. R.
      v. Gazzam, 8 Casey, 340; Howard Express Co. v. Wile, 14 Smith, 201.
    Carroll was not a passenger, and therefore the duty was his to show negligence on the part of the defendant and that be was free from negligence : Baker v. Eehr, 10 W. N, C., 56 ; McOully v. Clarke, 4 ¥r., 399; P. & R. R. R. Co. v. Hummed, 8 Wr., 375. _
    _ Carroll did not stop, look and listen immediately before attempting to cross, and he admits that if he had done so, or even looked without stopping, he could have seen the coming train. He therefore was guiltj- of negligence per se, and violated an unbending rule and could not recover: P. R. R. Co. v. Beale, 23 Smith, 504.
    May 29, 1882.
   — Per Curiam :

The injury received by the plaintiff was attributable solely to his own gross carelessness. It is in vain for a man to say that he looked and listened, if, in despite of what his eyes and ears must have told him, he walked directly in front of a moving locomotive.

Judgment affirmed.


author: Gordon, J.:

text:
    January Term, 1882,
    No. 298.
    May 18th, 1882.
    Appeal of Henry Charles et al.

    1. A family settlement made by the widow and children of Henry Charles deceased, provided, inter alia, that “ the separate estate of widow Anna Charles received from her father Michael Kreider’s estate, and which came to the hands of her husband in the year 1852, ... is to be drawn out by her, from estate of-Henry Charles and retained by her sons Henry and Michael Charles, who are to pay to her the annual interest, and in case of sickness or other need apply so much of the principal for her use as they deem right and just, and at her death the remainder of said fund to he paid to her heirs.” The widow died, having made a will in which she bequeathed the fund to two of her children absolutely. Two others of her children cited Henry and Michael Charles, as trustees, to account. Held, that the fund was her own absolute, personal estate, and vested in the legatees under the will, there being nothing from which it appeared that such disposition of it would in any way disturb the settlement.
    2. The word “ heirs ” in the agreement should not be construed to mean “ children.”
    3. Since she received nothing by the settlement that was not already her own’or that she was not by law authorized to take, there was no consideration on which to support the presumption of a gift to the children, and her authorization of two of her sons to take charge of the fund as trustees to her own use, during her life, neither altered her right to or power over it.
    Before Sharswood, C. J.; and Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.

      Appeal of Henry Charles and Michael Charles from the decree of the Court of Common Pleas of Lancaster County requiring them to account, upon the petition of Benjamin Huber and Susan Huber and John M. Warfel and Anna Warfel for a citation.
    Henry Charles died in 1873, leaving a widow Anna Charles, a son Benjamin by his first wife, and the following children by his widow, Henry, Elizabeth, wife of Valentine Warfel, Michael, Jacob, Susan, wife of Benjamin Huber, Anna, wife of John M. Warfel, Barbara, wife of Martin Mylin, Fanny, and Catherine, w'ife of Joseph Miller. In his will he divided his real estate into two parts, and he devised one of these parts to his son Henry and the other to his son Michael. The sons entered into possession, and the widow Anna Charles lived with the son Henry. Subsequently the will was set aside upon an issue of devisavü vel non. Henry Charles then took out letters of administration upon the estate of his father, and under proceedings in partition, the real estate of the decedent was divided into two purparts, of which No. 1 was awarded to Susan Huber at $11,585.35, and No. 2 to Anna Warfel at $10,860.75.
    Anna Charles, the widow, was the daughter of Michael Ereider, from whose estate, in 1852, she received in personalty $167G.01J, and from the sale of his realty $1638.68f, or together $3314.70. Her husband united with her in releases to the administrators of Ereider, which recited “Henry Charles, the husband of Anna Charles, being present at the execution of the release, signs and seals the same as evidence of his full consent of the money therein mentioned having been paid to his wife, Anna Charles, and in consideration of the premises fully sanctioning her act and deed, and releasing to the said administrators of said deceased, their heirs and assigns, any claim or interest which he might or could have in the premises.”
    November 10th, 1875. The widow and children of Henry Charles entered into a sealed agreement of settlement, which provided:
    “ 1st. The said widow is to be charged with the sum of two hundred and seventeen dollars and fifty cents ($217.50), and is to keep all of the household and kitchen furniture, -which said Henry Charles died possessed of, and also the stock appraised to her for $300 claim.
    “ 2d. Said administrator to be charged with the proceeds of about twelve acres out in corn at time of death of Henry Charles. Also with proceeds of wheat put out in purpart No. 1 of real estate in 1873, as well as of crops put out on same in 1874. Also with proceeds of corn crop put out in 1874 on No. 2 (farmed by Michael Charles). Also with the proceeds of wheat crop put out in both farms in 1874. Also the oats crop on both farms in 1875.
    “The crops of corn on both farms for 1875 and hay and straw produce of 1875 to belong to the respective acceptors of the real estate. Commissions of five per cent, to be allowed on all personal property charged against administrator, deducting such commissions as have been already claimed in administrators’ account filed on said estate. The counsel fees allowed by Court for services relative to real estate, $150, and fees and costs of sheriff’s clerk, survey, etc., relative to same, $94.62, are to be .paid by administrator out of the personal property. The advancements against the children are to be taken and accounted for at the amounts stated in the first inventory filed.
    “ The real estate purpart No. 1, accepted by Mrs. Huber, is to be conveyed at the acceptance price, $11,585.31 (the one-third thereof to remain charged during life of widow), to Henry Charles.
    “And purpart No. 2, accepted by Mrs. Anna Warfel, is to be charged at the acceptance price of $10,800.75 (the one-third thereof to remain charged during the life of the widow) to Michael Charles. They, the said Henry Charles and Michael Charles, are to pay out the shares of the heirs of said Henry Charles in the two-thirds of the acceptance prices for said two purparts, including shares of Susan Huber and Anna Warfel, on the 1st of April next, A. D. 1876, with interest from the 11th of September, A. I). 1875, except, should it be deemed necessary by attorneys for estate to retain a share for John Charles (believed to be long since dead), such sum as Court may direct, and,as directed, is to be kept back .until the matter be legally determined.
    “ Purpart No. 3 of real estate, accepted by Mrs. Huber at $80, is to be retained by her, but the widow and heirs of Henry Charles are to receive nothing of the acceptance-money as a dower of $85, with interest from April 1st, 1875, is due heirs of Henry Eshleman, of Martic Township, his widow, Mary Eshleman, having died.
    “ The separate estate of widow Anna Charles, received from her father Michael Kreider’s estate, and which came to the hands of her husband in the year 1852, viz., personal $1676.01J, real $1638.68f == $3314.70 (see releases in record-book Z, vol. vii., pages 354 and 355) is to be drawn out by her from estate of Henry Charles, and retained by her sons Henry and Michael Charles, who are to pay to her the annual interest, and, in ease of sickness or other need, apply so much of the principal for her use as they deem right and just, and at her death, the remainder of said fund to be paid to her heirs.
    “It is agreed also, for the purpose of paying Michael for barn erected on purpart No. 2 of real estate, since death of his father, that he shall receive from¡ the widow his mother $600, and from Benjamin, Henry, Elizabeth, Jacob, Barbara, Fanny and Catharine, his brothers and sisters, each $200, which amounts are to be credited now against their respective shares in the two-thirds of acceptance-moneys for purpart No. 2 of real estate, to be conveyed to said Michael Charles as hereinbefore mentioned.”
    This agreement was acknowledged and recorded. Anna Charles the widow died in October, 1876, leaving.a last will and testament, in which she bequeathed as follows:
    “ It is my will, and I do hereby give and bequeath unto my son Henry Charles and my daughter Fanny Charles all my household goods and furniture, as well as my own separate estate, to wit: The sum of fourteen hundred and thirty-nine dollars and eighty-five cents ($1439.85) held by my son Henry Charles, and the sum of ten hundred and fifty-seven dollars and thirty-five cents ($1057.35) held by my son Michael Charles, the said household goods and moneys are to be divided equally between them, and are to be their separate estates absolutely.”
    The petition asked for an account as to the sum of $3314.70.
    The answer set up the disposition of the separate estate of Anna Charles under her will.
    The Court below, Livingston, J., January 14th, 1882, decreed as follows:
    “ A full and careful examination of the record, the petition, answers, and replication has satisfied us of the propriety and wisdom of this family settlement and arrangement, and that the rule now before us should be made absolute, and that a citation should issue as prayed for, so as to require an account to be filed. Let the citation issue. Rule made absolute.”
    Henry Charles and Miehael Charles then appealed, assigning that the Court erred in making the rule absolute, in issuing a citation, and in ordering an account.

      George Nauman and Philip D. Baker, for the appellants.
    No trust was created by the agreement of November 10th, 1875. The fund was admitted to belong to Anna Charles. The source from which it came and the manner were pointed out. The payment of the interest to her annually during life, and the remainder to her heirs made it hers absolutely: Williams v. Leech, 4 Casejr, 89 ; Doebler’s Appeal, 14 P. E. S., 9 ; Steiner v. Kolb, 7 P. E. S., 123 ; Kepple’s Appeal, 3 P. E. S., 211 ; Biddle’s Appeal, 19 P. E. S., 194; Cox v. Rogers, 27 P. E. S., 165; Potts’s Appeal, 6 Casey, 170 ; Smith’s Appeal, 11 Harris, 9; Nunez v. Fisher, 15 S. & R., 149 ; Ralston v. Wain, 8 Wr., 279; Physick’s Appeal, 14 Wr., 128 ; Nice’s Appeal, 14 Wr., 143 ; Bush’s Appeal, 9 Casey, 85 ; Pratt v. MeCawley, 8 Harris, 264; Kay v. Scates, 1 Wr., 31; Harvey’s Appeal, 11 Casey, 207 ; Mackason’s Appeal, 6 Wr., 330; Turner v. Scott, 1 P. E. S., 126; Frederick’s Appeal, 2 P. E. S., 338.
    It cannot be implied that the word “heirs ” meant “ children:” Doebler’s Appeal, 14 P. E. S., 13.
    She disposed of the fund in a will, under which the petitioners take nothing.

      N. Ellmaker and N. M. North, for the appellees.
    The agreement was a family settlement, in which the word “ heirs ” is used as descriptive of the persons signing it, the children of Anna Charles. The fund was placed in the hands of trustees. If this was the intention, there is no rule of law to prevent its being carried out: Doebler’s Appeal, 14 P. E. S., 9.
    In this settlement disputes were compromised, and concessions made, and if the appellees cannot share in this fund, they gave up everything, and got nothing. Such settlements will be enforced upon principles which are not applied to agreements generally: Lies v. Stub, 6 Watts, 48 ; Shartel’s Appeal, 14 P. E. S., 25; Wistar’s Appeal, 30 P. F. S., 484 ; Stockley v. Stockley, 1 Ves. & B., 31 ; Barton v. Wells, 5 Wharton, 226; Jourdan v. Jourdan, 9 S. & R., 276; Perkins v. Gay, 3 S. & R., 331; Huss v. Stephens, 1 P. E. S., 282; Cox v. Ereedley, 9 Casey, 124; Dodson v. Ball, 10 P. E. S., 500.
    When the intention requires it, the word “ heirs ” may be divested of its technical meaning: Chew’s Appeal, 1 Wr., 23 ; Guthrie’s Appeal, 1 Wr., 14.
    The proceeding was interlocutory, and the appeal is premature: Eckfeldt’s Appeal, 1 Harris, 171 ; Cooper v. Van-fleet, 2 W. N. G, 241.
    October 2d, 1882.
   — The opinion of the Court was delivered by

Gordon, J.:

The Court below has given us no reason for treating Henry and Michael Charles as trustees of the children of Anna Charles, except that the paper executed by these parties on the 10th of November, 1875, was a family settlement, and ought not to be disturbed. But non constat that the disposition by the will of Anna Charles of property in said paper recognized as her own absolute personal estate, will in any way disturb such settlement. On what principle the word “ heirs,” ordinarily a word of limitation, can be turned into the word “ children,” through which the appellees are to take as purchasers, or remainder men, we cannot understand. There is certainly nothing in the paper itself which even remotely indicates such an intention; on the other hand, everything therein recited deads toa contrary conclusion. The subject-matter of the alleged trust was some $3314, which the writing acknowledges to have come to the widow. Anna Charles from the estate of her father Michael Kreider. Without doubt, this money, at that time, belonged to her absolutely. But, why should it not continue so to belong to her ? By this settlement with these children, she received nothing that was not already her own, or that she was not by law entitled to take; hence, there was no consideration on which to support the presumption of a gift in their favor, and that she authorized two of her sons to take charge of this money, as trustees to her .own use during her life, neither altered her right to or power over it, nor vested title of any kind in the petitioner’s. It is, therefore, impossible for us to comprehend by what rule of construction the language of the instrument, now before us, can be so changed, we might say perverted, as to deprive the legatees of Mrs. Charles of that which was bequeathed to them by her will.

The decree of the Court below is now reversed and set aside at the costs of the appellees.


author: Sterrett, J.:

text:
    January Term, 1882,
    No. 434.
    May 18th, 1882.
    The Columbia National Bank versus Bletz.
    1. There vas not, between December 4th, 1871, and September 20th, 1872, inclusive, a single bank of issue in this Commonwealth authorized to charge interest at a greater rate than six per cent.
    2. National Banks within this Commonwealth are forbidden by section 5198 of the Devised Statutes of the United States, to contract for, or receive, a higher rate of interest than six per cent.
    3. Bank v. Gruber, 10 Norris, 377, and Bank v. Karmany, 11 W. N. C., 43, followed.
    4. Section 5198 of the Devised Statutes of the United States provides that, “in case a greater rate of interest has been paid, the person or persons paying the same, or their legal representatives, may recover back, in any action of debt, twice the amount of interest thus paid from the association taking or receiving the same.” Held, that the sum to be recovered back is not a debt but a penalty, and does not bear interest.
    5. In a suit for such penalty it is no defence that in a previous action upon the notes by the defendant against the plaintiff, the latter claimed as a set-off and was allowed all of the interest and discount taken upon the said notes.
    6. The Courts of this Commonwealth have jurisdiction.
    Before Sharswood, C. J.; Mercur, Gordon, Paxsqn, Trunkey, Sterkett, and Green. JJ.
    Error to the Court of Common Pleas of Lancaster County.

    Assumpsit, by Frederick Bletz against The Columbia National Bank, to recover penalties imposed by section 6198 of the Revised Statutes of the United States, for taking interest in excess of the legal rate.
    The defendant pleaded to the jurisdiction of the Court, nil debet, and filed certain special pleas as follows:
    1. That it did not take from the plaintiff any loan or discount or interest, upon any note, bill of exchange, or evidence of debt, “ at a rate greater than the rate limited for banks of issue organized under the laws of the State of Pennsylvania, where the said defendant bank is located.”
    2. That by the provisions of its charter it was authorized to take interest at the rate allowed by the laws of Pennsylvania for banks of issue organized under the laws of said Commonwealth, and that banks of issue organized under the laws of said Commonwealth were authorized by their charters to take such rates of interest as might be agreed upon by said banks and the parties contracting with them (naming eighteen such banks, and referring to their acts of incorporation).
    3. That as to certain counts of the narr, being fifteen counts, in a suit previously brought by the present defendant against the present plaintiff to recover the amount of the notes mentioned in said counts, the present plaintiff demanded a set-off of all the interest and discount paid on the notes; and all of the interest and discount, amounting to $614.35, was deducted, and only the balance of the principal sums was paid by the present plaintiff to the present defendant.
    4. That as to the other counts of the narr, being one hundred and fifty-one counts, in a suit previously brought by the present defendant against the present plaintiff to recover moneys duo on the promissory notes mentioned in said counts, the present plaintiff claimed “ a set-off of all the excess of interest and discount above six per cent.” received by the present defendant on the said notes, “ and all of said excess, with interest thereon, said excess amounting to $1412.22, and the interest thereon to $407.47, aggregating $1819.69,” which was allowed as set-off and deducted.
    On the trial before Patterson, J., the plaintiff offered in evidence, without objection, a paper showing the amount of various notes discounted by the defendant for the plaintiff, between December 4th, 1871, and September 20th, 1872, inclusive, to be $202,622.39, upon which the discount charged was $2398.26; the excess over six per cent, was $927.88, and the total of discount and excess was $3322.14. The defendant offered in evidence the charters of all the banks named in his second special plea, to be followed by evidence that these banks were organized and carried on business from December 1st, 1871, to December 1st, 1873, and that defendant took from plaintiff only such rates of interest as were agreed upon between them.
    The Court, on objection, overruled the offer, and exception was taken.
    Defendant then offered in evidence the record of a suit to January Term, 1874, No. 113, by the present defendant against the present plaintiff, to be followed by proof “ That all the interests and discounts, and interest on the same, aggregating $614.35, accepted and received by this defendant from the plaintiff, in the last said suit, on the notes mentioned in the third special plea filed in the case now trying, was claimed as a set-off by this plaintiff, and the same was allowed to him by this defendant, being all the interest and discount ever taken from him on said notes; and further, that all the excess over six per cent., accepted and received from this defendant by this plaintiff, on all the notes mentioned in all the counts, in the plaintiff’s declaration, mentioned in defendant’s last special plea filed in this case, the said excess amounting to $1412.22, and the interest thereon, amounting to $407.47, aggregating $1819.69, was claimed by this plaintiff as a set-off in said suit, No. 113, January Term, 1874, and that this defendant then allowed the same to him ; and this defendant only received from the plaintiff the principal of said notes without any interest, and after deducting all discounts charged on said notes, and interest on said discounts, and all of said excess and interest thereon.”
    The Court, on objection, overruled the offer, and exception was taken.
    Counsel for the defendant asked the Court to charge the jury as follows:
    “1. This Court has no jurisdiction for the recovery by plaintiff' of the penalties claimed in the declaration filed in this suit, and therefore the verdict must be for the defendant.
    “ 2. There having been in Pennsylvania at the several dates of the discounts mentioned in the plaintiff’s declaration, from December 1st, 1871, to December 1st, 1878, banks of issue organized under the laws of said State, authorized to take such rates of interest as might be agreed upon between such banks and the parties contracting with them, the defendant having accepted and received from the plaintiff only such rates of interest or discount as were agreed upon between the plaintiff and the defendant, the plaintiff cannot recover in this action, and the verdict must be for the defendant.
    “ 3. The plaintiff cannot recover any interest on any of the penalties mentioned in the declaration.
    “ 4. The uncontradicted evidence being that all the interest and discounts taken, received, reserved or charged by the defendant from the plaintiff on the notes mentioned and described in counts numbered 45, 67, 80, 105, 120, 125, 131, 140,144, 151, 157, 159, 163 and 164 of the plaintiff’s declaration were claimed by the plaintiff as matters of set-off, and were allowed to him by this defendant as credits in a suit brought by this defendant against this plaintiff to No. 113, January Term, 1874, in this Court, to recover the amounts of the notes'mentioned in said counts, the plaintiff cannot recover any of the- penalties mentioned in said counts, and as to them the verdict must be for the defendant.
    “ 5. The uncontradicted evidence being that all the excess of interest and discounts above 6 per cent, taken, received, reserved or charged by the defendant, from the plaintiff, on all the notes mentioned and described in all the counts of the plaintiff’s declaration, with interest on such excess, was claimed by the plaintiff, and was allowed to him by this defendant as a credit in a suit brought by this defendant against this plaintiff’ to No. 113, January Term, 1874, in this Court, to recover the amounts of the notes mentioned in counts (giving the numbers) of the plaintiff’s declaration, the plaintiff cannot recover any of the penalties mentioned and claimed in his declaration, and theverdict must be for the defendant.”
    The Court negatived these points, and charged the jury :
    “ It seems that the parties here are agreed as to. the correctness of the calculation of interest charged on the several loans and-discounts, and the proof as set forth in paper ‘ No. 1, D. W. P.,’ and not disputed, is that the interest so charged is in excess of the legal rate of interest; we, therefore, are requested to instruct you to render your verdict for the plaintiff for the sum of $9434.87, which we now do.”

      Defendant excepted to the answers to the points and the charge.
    November 22d, 1880. Yerdict for the plaintiff for $943487, upon which judgment was subsequently entered.
    The defendant then took out a writ of error, assigning as errors:
    1 and 2. That the Court erred in overruling the offers of the defendant.
    3, 4, 5, 6 and 7. That the Court erred in its answers to the defendant’s 1st, 2d, 3d, 4th and 5th points.
    8 and 9. That the Court erred in its charge, and in entering judgment on the verdict.

      H. M. North, for plaintiff in error.
    Defendant has a right to support his plea, whether the facts are sufficient to constitute a defence or not: Howell v. McCoy, 8 Rawde, 256.
    As to the 2d, 3d and 4th assignments: Brown v. Second National Bank of Erie, 22 P. F. Smith, 209 ; Bletz v. Columbia National Bank, 6 Norris, 87; Bank v. Gruber, 8 W. N. C., 119 ; Bank v. Xarmany, 11 W. N. C., 42.
    Under the 30th section of the National Banking Act of June 3d, 1864, the sum to be recovered is twice the amount of the interest as a penalty, not as a debt-bearing interest.
    It is 'not a debt at all. Where money is recoverable under a statute that makes no provision for interest, none can be recovered: Weir v. Allegheny County, 11 Pittsburgh L. J., N. S., 199 ; see Bank v. Johnson, 25 Albany Law Journal, 6.

      George M. Kline and S. H. Keynolds, for defendant in error.
    The rejection of evidence, the relevancy of which does not appear, is not ground of error.
    A party, from whom a national bank has taken an excess of interest, is entitled to recover the penalty and the excess of interest: Gruber v. The Bank, 6 Norris, 465.
    The claim is not for a penalty. It is a debt due the borrower. As a debt, it carries interest: 1 Binney, 488.
    October 4th, 1882.
   — The opinion of the Court was delivered by

Sterrett, J.:

It is very evident from an inspection of the several acts of Assembly, which the Court refused to receive in evidence, that they are not charters of banks of issue, and were, therefore, irrelevant. During the period covered by the transactions on which this suit is based, it may be safely affirmed that there was not a single bank of issue in this Commonwealth authorized to charge interest at a greater rate than six per cent. The same question was before us, in First National Bank of Clarion v. Gruber, 10 Norris, 377, and Lebanon National Bank v. Karmany, 11 W. N. C., 43. It is there held that there are not and never have been any such banks in this State; and, consequently, national banks are forbidden by the act of Congress to contract for or receive a higher rate of interest than six per cent. All the questions of any importance (with perhaps a single exception), that are presented by the record in this case, are so fully discussed and disposed of in the cases referred to, that it is only necessary to say, we are satisfied that the rulings of the Court below are correct, except in the matter complained of in the fifth and eighth specifications, viz., the refusal of the Court to. charge that the plaintiff cannot l’ecover interest on any of the penalties mentioned in the declaration. In this there was clearly error. The act of Congress provides: “ In case a greater rate of interest has been paid, the person or persons paying the same, or their legal representatives, may recover back, in any action of debt, twice the amount of interest thus paid from the association taking or receiving the same; Provided, That such action is commenced within two years from the time the usurious transaction occurred.” The sum to be recovered is not a debt, which would ordinarily carry interest. . It is a statutory penalty, and the form of action, in which it may be recovered, does not endow it with the interest-bearing property of a debt. Where money is recoverable under a statute that makes no provision for interest, none can be demanded. This principle is distinctly ruled in Weir v. Allegheny County, 10 Pittsburgh L. Jour., N. S., 241. The record before us shows the items, which make up the verdict, viz.:

Penalties,...... $6644.28
Interest thereon, ........ 2790.59
Verdict,.........$9434.87

The learned counsel for defendant in error offered at bar to remit the item of interest, in case we should be of opinion that it is not recoverable. Instead, therefore, of reversing the judgment, and awarding a venire facias de novo, it may be modified by striking out the item of interest, and thus reducing the amount of the verdict to $6644.28.

Counsel for defendant in error having agreed to remit all of the verdict in excess of $6644.28, it is ordered that the record be so amended, and the judgment modified accordingly; and, as thus modified, the judgment is affirmed.


text:
    July Term, 1882,
    No. 10.
    May 16th, 1882.
    Keemer versus Herr.
    A refusal to strike off a mechanics’ claim is not a final judgment for which a writ of error lies.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Lancaster County.

    Mechanics’ lien, filed by Henry S. Herr against Henry Harnish, administrator of Michael S. Harnish, deceased, and James Nee ver.
    The record showed that there had been a jury trial in the Court below, with a verdict for the plaintiff:* for $1724.25, the judgment on which was reversed in the Supreme Court.
    October 29th, 1881, the Court, on motion of attorneys for the plaintiff', ordered the caption of the case to be amended by striking therefrom the name of Henry H. Harnish, administrator of Michael Harnish.
    November 5th, 1881, on motion of attorneys for defendant, the Court granted a rule on the plaintiff to show cause why the lien should not be stricken off.
    December 27th, 1881, the attorneys for the defendant moved to strike off’ the amendment of October 29th. 1881.
    Both of these rules the Court below., Livingston, J.,in an elaborate opinion filed March 27th, 1882, discharged.
    Defendant then took out a writ of error, assigning as errors that the Court erred in allowing plaintiff to amend, in discharging the rule to show cause why the amendment should not be stricken out, and in discharging the rule to show cause why the lien should not be stricken off' after the allowance of the amendment.

      D. G. Eshleman and A. O. Newpher, for plaintiff in error.

      H. M. North and B. F. Groff, for defendant in error.
    This writ of error is premature, and we move to quash it; it does not lie to either ruling of the Court; there is no final judgment entered.
    If the Court below refuses to strike off an appeal, a writ of error does not lie.
    Kendrick v. Overstreet, 8 S. & R., 357; per curiam: “The cause is still pending. If the Court erred in refusing to quash, it cannot be taken advantage of until final judgment is renderedGardner v. Lefevre, 1 P. & W., 73.

      Tlie refusal to set aside an award is not the subject of a writ of error: Bemus v. Clark, 5 Casey, 251.
    Nor the refusal to set aside an execution: Neil v. Tate, 3 Casey, 208.
    May 29th, 1882.
   — Per Curiam :

A refusal to strike off a mechanics’ claim is not a final judgment for which a writ of error lies. It is not distinguishable from a refusal to strike off an appeal or to set aside an award. The case is still pending, and the defendant can have it brought .to a final decision in the Court below.

Writ of error quashed.


text:
    January Term, 1882,
    No. 137.
    May 17th, 1882.
    Levis et ux. versus Brown et ux.

    1. WKere a levy upon real estate is ambiguous, it is open to be explained by parol evidence,
    2. An execution was levied upon the defendant’s real estate, viz.: “All that certain valuable farm or tract of land, . . . containing 276 acres more or less,” adjoining lands of A., B., 0., and others. It appeared in evidence that the defendant had an interest in two adjoining tracts of land, one containing 274 acres, and the other 3 acres and 70 perches. The latter tract did not adjoin lands of either A., B., or O. During the ownership of the defendant, it was not a part of the larger tract. He treated them as separate tracts, and paid taxes on them separately. Held, that the latter tract was not included in the levy and sale.
    Before Sharswood, C. J.; Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    F.rror to the Court of Common Pleas of Lancaster County. tition by Richard J. Levis and Mary T. E. Levis, his wife, in right of said Mary E. Levis, against Kirk Brown and Emmeline H. Brown, his wife, in right of the said Emmeline H. Brown.
    The case was, by agreement, referred to George Nauman as referee, from whose report the following facts appeared:
    On March 11th, 1873, Kirk Brown became the owner, by purchase, of an undivided interest in “ all those two certain messuages and tracts of land situated in the township of Pulton, Lancaster County.” The first tract was described in the deed as containing 274 acres, and the other as the undivided one-half of a tract containing 3 acres and 70 perches. His interest was an undivided four-fifths of the larger tract, and an undivided one-half of the smaller tract. Timothy Haines, trustee, obtained judgment against Kirk Brown, June 23d, 1873, for $5000. Eshelman and Rathvon obtained judgment against him, December 22d, 1877, for $1020.09. Under an execution on the latter judgment, a levy was made and indorsed on the writ as follows:
    “ Levied February 6th, 1878, on Kirk Brown’s real estate, viz.: All that certain valuable farm or tract of land, situated in Fulton Township, Lancaster County, Penna., containing 276 acres, more or less, on which are erected a two-story brick dwelling-house, with a two-story frame and brick kitchen attached, frame bank barn, wagon-shed, with corn-cribs and carriage-house attached, hog-pen, chicken-house, ice-house, one and a half-story frame tenant-house, and other necessary outbuildings; cisterns at the house and barn, with pumps therein, two orchards and other improvements thereon, adjoining lands of Albert M. Brown,. Timothy Haines, Gilpin, Stubbs, and others.”
    Timothy Haines, trustee, issued an execution, February 11th, 1878, under which a levy was made, similar in form to that on the other execution. On the same day the defendant gave to the sheriff a waiver of inquisition upon both writs. The sheriff sold the real estate levied upon to the plaintiff, March 6th, 1878, and executed to her a deed, the description in which followed the levy, on the 15th of April, 1878. At the time of the levy, the owner of the remaining one-fifth interest of the larger tract w'as the defendant, Emmeline H. Brown, and she subsequently became the owmer of the undivided one-half of the other tract.
    The tract of 274 acres was bounded by the Susquehanna River, the lands of those set forth in the levy as owning lands adjoining the lands levied on, and the tract of 3 acres and 70 perches. The tract of 3 acres and 70 perches was bounded by the Susquehanna River, the tract of 274 acres, and the lands of Clarkson Cook. None of the lands of those set forth in the levy as owning lands adjoining the land levied on adjoin the smaller tract.
    These two tracts of 274 acres and 3 acres and 70 perches, respectively, were, dui’ing their ownership by Kirk Brown, treated as separate tracts. He paid taxes on them as separate tracts, and during this time the smaller tract was not part of the larger one.
    April 28th, 1879, the plaintiff brought an action of partition for the larger tract, and in that action a judgment quod partitio fiat was rendered. The same day she brought the present action for the smaller tract.
    The demand of the plaintiff was resisted on the ground, — ■ first, that she had shown no title to the lands in question; and, second, that having had one partition of the lands conveyed by the sheriff’s deed, she had exhausted her remedies, and could proceed no further.
    The referee said:
    “ The uncontradicted evidence shows that Kirk Brown’s real estate consisted of two tracts, bought as two, used as two, and never under his ownership united as one. The referee does not think that their conveyance by one deed, or their subjection to a common charge, converted them into one tract, any more than the mortgaging in one instrument of several distinct parcels of land would make them one. It was argued that the amount of land mentioned in the levy would cover both tracts. Together they contain 277 acres and 70 perches, the levy being o.n 276 acres, more or less. It is true that it appeared that 6 acres had been sold, which were a part of the tract of 274 acres, but there was no evidence showing the exact time of this sale, and as the judgment held by Haines became, on June 2Sd, 1873, a lien on the lands purchased by Brown on April 1st, 1873, it would seem probable that the whole of the tract of 274 acres was bound by it, and was properly sold under an execution issued on it. Again, not a person described in the levy, as owning lands adjoining those seized, owns lands adjoining the smaller tract. It adjoins the larger tract, the Susquehanna Eiver, and the lands of Clarkson Cook, and the Susquehanna Eiver and the lands of Cook do not appear in either the levy or deed. There was no evidence before the referee to show whether or not the two tracts were apparently used as one, whether • they were used in connection with the same buildings or not, whether or not it would have been more advantageous to sell them together ; in fact, there was nothing to show the nature of the tracts, except that the larger one seemed to have been used as a farm, and the smaller one is referred to, in some of the papers, as the 4 saw-mill tract.’ The only positive evidence given showed that there were two tracts of land, which had been bought as two, used as two, and never under Brown’s ownership incorporated into one.”
    The referee found that no title to the land, partition of which is sought in this action, passed to Mrs. Levis by the sheriff’s deed conveying the property of Kirk Brown, and directed judgment to be entered for the defendants.
    The plaintiffs then took out a writ of error, assigning that the referee erred in directing judgment to be so entered.

      W. W. Brown and B. F. Fshleman, for plaintiffs in error.

      There is no principle of law better settled in Pennsylvania, than that whatever real estate is levied on passes to a purchaser at sheriff’s sale. The levy controls everything. All subsequent proceedings depend upon it. Why does not the levy, in this case, cover the interest of Kirk Brown, the defendant in the execution, in the whole of the continuous tract of land of which he was seized ? It was not necessary that the sheriff, in describing the property in his levy, should name every adjoining landowner. When he described in his levy the tract of laud, with some of the adjoiners, that levy carried with it the whole of the continuous tract, without regard to the interest of the co-tenants of the defendant in the premises. It was his interest alone that could be affected by the levy. When two tracts of adjoining land vest in one and the same person, they become one tract, and by act of Assembly of June 16th, 1836, § 43, Pamph. Laws, 767, the sheriff cannot levy upon a part of a tract of land. He must levy upon the whole tract. There is nothing in the sheriff’s levy in this case to indicate an intention on1 the part of the sheriff to levy on less than the continuous whole tract of land of which Kirk Brown, the defendant in the executions, was seized: Palmer’s Case, 5 Coke, 126 ; Inman v. Kutz, 10 Watts, 90.

      II. M. North and J. Hay Brown, for defendants in error.
    The referee has found, as a matter of fact, that the levy did not include the smaller tract. It could not, therefore, have been sold on the execution.
    The referee’s findings of fact are conclusive and cannot be reviewed: First National Bank of Allentown v. Sullivan, 11 W. N. C., 362.
    The case is governed by Buckholder v. Sigler, 7 W. & S., 158.
    May 29th, 1882.
   — Per Curiam :

Upon the facts as found by the referee, we are of opinion that the judgment was properly entered for the defendants. The description in the levy was ambiguous, and was open, therefore, to be explained by parol evidence, which showed that the two tracts were separate and distinct tracts.

Judgment affirmed.


author: — Per Curiam:

text:
    January Term, 1882,
    No. 96.
    May 15th, 1882.
    Long et al. versus Long et al.

    1. Where a conveyance is made upon a trust expressed in the deed, it is a conclusive answer to an allegation of a resulting trust supported by parol testimony.
    2. If a man purchase a property and take a deed in the name of one or more of his children, it is prima facie an advancement.
    3. A. bought real estate and had it conveyed in 1842 to a trustee for the use of A.’s wife, and to his heirs and assigns during her life, and to permit A. to enjoy the rents, issues and profits during his life at the discretion of the trustee, and .after the death of the survivor to the children of A. as tenants in common. In 1853 the trustee assigned all his right, title, claim and interest in the said real estate to the parties beneficially interested in it, by a deed reciting the trust. A. survived his wife, and died leaving a will in which he devised the real estate to certain of his children. In a suit in partition by the remaining children against the devisees, the trustee testified that he did not know the deed was put in the name of the wife and children until after the death of A., and that A. said he bought the property for himself. There was testimony that during his life A. claimed ownership, had work done on the property and paid for it, and had the property assessed in his own name and sold some of it.

      Held, That there was no evidence to change the legal effect of the deed, and that the Court below was right in directing a verdict for the plaintiffs.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Lancaster County.

    Partition by John Long, Sarah Long, Mary Shand and Jacob Shand, her husband, Elizabeth Stiffell and Christian Stiiiell, her husband, against Susan Long, Catharine Long, Adaline Long, Eanny Free and John Free, her husband, for a house and lot in the city of Lancaster.
    On the trial in the Court below, before Livingston, J., the following facts appeared:
    March 29th, 1812. The executors of the estate of Jacob Bundel, deceased, conveyed the house and lot in dispute to John B. Hertzler, trustee, “ in trust for the use of Elizabeth Long, wife of Peter Long, and to his heirs and assigns during her life, and in trust also that he the said trustee will allow and permit Peter Long to enjoy the rents, issues, and profits of the same during his life; this to be at the discretion of the trustee, and after the death of the survivor to the children of Peter Long as tenants in common.”
    Hertzler, the trustee, testified for the defendants, inter alia:

    “ I bought this property altogether for Peter Long; I was in town; I told Long if he don’t want this property for his own ; he said yes, I have no money to buy a property; then said I, well, if you want the property I’ll help you to it. . . . That day I came into town and went to Emanuel Reigart, the lawyer, and told him. Then, said I, if a title can be made so that I am safe, I’ll buy it. Then Reigart said a title could be made, that I am safe; if Peter Long don’t pay it, then the property is mine. Then I told him I’ll go and buy it then. lie said yes, I can make a title that you are safe; then I bought it; I said nothing, and he said nothing about making a deed; I had confidence that he would make me safe; I mean Mr. Reigart. 1 told Peter when I went home how I bought the property; he said he bought the property for himself; he bought it for himself but he had no money ; I had no conversation after that with Mr. Reigart about the making of the deed as I recollect; I was young then, and didn’t know how the title ought to be. I paid the purchase-money to Snyder and Bundel, executors, in the first place; then me and Peter agreed that he would give me bonds; he was paying $75 rent; I said to him if you can pay $75 rent you can pay this property. . Then we agreed that he should give me five or six bonds, $75 payable every year; the last bond was more than $75 ; he was to pay me five per cent, interest; he paid me all those bonds. Reigart in the spring gave me the deed and told me to hold it till Peter paid me all the money; I did so, and when h.o paid all the money I gave him the deed and also the deed or release of 1853. Peter moved on the property in the spring after I bought the property ; it took him ten oreleven years to pay the property.”
    Cross-examined:
    “ Before I bought the property I told him to go home and consult his family — his wife and children; he did so ; I told him if him and his wife and children would stick together they could soon pay the property; I can’t tell where he got the whole of the money which he paid me; he earned part of it with me; I can’t tell why the deed was put in the name of the wife and children, in fact I didn’t know it was so till after his death ; I didn’t say the reason it was put in their name was because he was broke up and had creditors; didn’t say in presence of Horsheimer and Brubaker I didn’t know he was broke up when .1 bought it; I don’t recollect that Peter Long and I were at Reigart’s together until I got the deeds; I didn’t know anybody Peter owed money to; the deed was not made as it is to prevent his creditors getting it as I know of.”
    Re-examined.
    “ At the times he paid me the bonds he still said now he had a home; he owns it; he always said this. Peter'Long could not read or write.”

      January 3d, 1853, Hertzler executed an assignment as follows:
    “ Whereas, Jacob Snyder and George Hoover, executors of Jacob Bundel, deceased, by deed dated 29th March, 184:', did grant, bargain and sell unto John B. Hertzler, in trust, for the use of Elizabeth Long, wife of Peter Long, during her life, and in trust also that he, the said trustee, will allow and permit Peter Long to enjoy the rents, issues and profits during life ; and after the death of the survivor to the chil~. dren of the said Peter Long, as tenants in common, a certain house and lot of ground situate at the northwest corner of Orange and Charlotte streets, in the city of Lancaster, as by said deed, duly recorded in the office for recording of deeds in and for the county of Lancaster, in Record Book U, vol. vi., p. 106, etc., reference thereto being had will more fully appear. And whereas, at the time of the purchase of the said premises, the said John B. Hertzler gave to the said executor, seven several bonds of $75 each, for the payment of the balance of the unpaid purchase-money, all of which bonds have been paid by the parties beneficially interested in the premises, and no part of the purchase-money has been paid by the said John B. Hertzler. Now, therefore, in consideration thereof, I, the said John B. Hertzler, trustee as aforesaid, all the said bonds being now delivered to me, do hereby grant, bargain and sell, assign, transfer and set over unto the said parties beneficially interested in said house and lot of ground, and to their heirs and assigns, all my right, title, claim and interest in the same.”
    Elizabeth Long died in 1875. Peter Long died in 1879, leaving a will, in which after giving certain specific legacies he devised and bequeathed as follows:
    “ As touching ail the rest, residue and remainder of my estate, real and personal, of what kind or nature whatsoever, the same may be in the city of Lancaster, aforesaid, or elsewhere. I give and bequeath to my daughters Susan Long, Kate Long, Adaline Long, and Fanny, wife of John Free, share and share alike. . . .
    “ If 'it is the desire of my four daughters, viz., Susan Long, Kate Long, Adaline Long, and Fanny, wife of John Free, that the real estate of which I may be possessed at the time of my decease shall be sold, then I do order and direct that my said executor shall, as soon as conveniently may be, sell and dispose of the property in which I now reside on the northwest corner of West Orange and Charlotte streets, in the city of Lancaster, to such person or persons, and at such price or prices as may be reasonably gotten for the same, and for that purpose I do authorize and empower my said executor to sign, seal, execute and acknowledge all such deed or deeds of conveyance, as may be necessary and requisite for granting and assuring the same to the purchaser or purchasers thereof, and the money arising from such sale or sales to be invested in such manner as my said executor may deem to be to the best interest of my said daughters, viz., the said Susan, Kate, Adaline and Fanny.”

      Peter Dorsheimer, for the defendant, testified, inter alia:

    “ I think in 1873 I bought the lot; the deed was made in 1874. I bought from Peter Long. The ground was at the upper end of this lot now in dispute. ... I paid him $1200. . . . This is the deed I got from Peter Long and his wife; she signed it too.”
    “ Question. In the negotiations for the purchase of this land, did or did not Peter Long hold himself out as the absolute owner of this lot; and as such did you not contract With him ?”
    (The question was overruled, and defendant excepted.)

      George D. Spreeler, for the defendant, testified, inter alia:

    “ I sold him slate for the roof of that house . . . November 14th, 1862, for $104.25; Peter Long paid it.
    “ Q. At that time did or did not Peter Long declare the property was his ; speak of it as his property ?”
    (The question was overruled, and defendant excepted.)
    There were other witnesses who testified to having done work for Peter Long on the property, and to having been paid by him. There was also evidence that from 1848 to 1881, inclusive, the property was assessed in the name of Peter Long, and that at one time, about 1850, he offered to sell part of it.

      Mrs. E. Stiffel, one of the plaintiffs, testified, inter alia:

    “ I had a conversation with Hertzler at his house last spring. Mr. Hertzler said then that the deed was put in the name of the mother and the children, so that the creditors couldfnot take it of him.”
    The plaintiffs were children of Peter and Elizabeth Long, and claimed under the deed of March 29th, 1842. The defendants claimed under the will of Peter Long.
    Counsel for plaintiff asked’the Court to charge, inter alia:

    “1st. That even if the purchase-money for the property in suit was furnished by Peter Long, the deed for the same of March 29th, 1842, from Jacob Snyder and others, executors, etc., to John B. Hertzler, trustee, rebuts every implication of a resulting trust in favor of said Peter Long ; otherwise it would be creating a trust different from that expressly declared in that deed, and therefore the verdict must be for the plaintiffs.”

      This point the Court affirmed.
    Counsel for defendant asked the Court to charge,inter alia:

    “ 2. If Peter Long, now deceased, and through whom these four defendants claim title to the real estate in suit, paid the purchase-money of the real estate, conveyed by-deed dated 29th March, 1842, from the executors of Jacob Bundel, deceased, in the manner testified to by Mr. Hertzler, and did so, with the intention of acquiring title thereto, in himself, as absolute owner — and this intention the jury will gather from the whole testimony — then the entire and absolute ownership of said house and lot, etc., in dispute-, was in him, notwithstanding and in the face of the language of the deed referred to, giving an interest to his wife, now deceased, and his children; and this is a question of fact for the jury.
    “ 8. Payment of the purchase-money by Peter Long, upon which he received the deed or paper from John B. Hertzler, dated the 31st January, 1853, and at the same time Hertzler, handing over to him the deed of 29th March, 1842, gave to the said Peter Long the entire and absolute ownership of the real estate in dispute.
    “4. If Peter Long, under whom defendants claim, was the owner of said real estate, then he had a perfect right to devise it by his last will and testament and codicil, proved in register’s office, 21st day of March, 1879, to the defendants therein named, and this action of partition cannot be sustained on the part of the plaintiffs, and your verdict must be for the defendants.”
    The Court answered these points as follows:
    “ 2. This point we refuse. There is an express trust here.
    “ 3. This point is refused. The paper of 1853 could not change the deed of 1842. It follows it.
    “ 4. A man of sound mind has always a right to devise any estate he may own to whom he pleases, but under the deed of 1842, and the paper of 1853, he, Peter Long, had no right to convey or devise this property by will.”
    The Court further charged the jury:
    “The plaintiffs allege and say, that they, together with the defendants, hold and own this property as tenants in common under the deed of trust, made in 1842, and they desire distribution to be made among the whole eight children of Peter Long, deceased. While the defendants allege and say, that the property in dispute belongs to them (four of the eight children of Peter Long), having been devised to them by their father, Peter Long, by his will road before you, and it will be for you to say, by your verdict, whether it belongs to the plaintiff's and defendants as tenants in common, they being all the children of Peter Long, or to the defendants only, they being four of said children, who claim under his will.
    “ The case presents a question of law for the Court, rather than one of fact for the jury, depending upon the construction of the deeds of 1842 and 1853.
    “It appears that on March 29th, 1842, the executors of the will of Jacob Bundel, deceased, sold and conveyed to John B. Hertzler the property in question, in trust.”

      * >{i ífc ;fc %

    “ [Here, then, is an express trust; every part of it complete, and set forth on the face of the deed, and we must take it as expressed, in the absence of duress, fraud or mistake at the time it was made, and there is no evidence of either here.] Mr. Long himself took a beneficiary interest under the trust, which he enjoyed while he lived, and there could be no resulting trust. It is argued that the paper of 1853 gave him a fee simple in the land, and he was therefore fully empowered to devise it by will as he did to defendants. We say to you it does not — the deed or paper of 1853 is made to the same parties as the deed of 1812, and Peter Long’s acceptance of it was a ratification of the deed of 1842, with the express trust therein. ' And it gave him no such title as claimed, nor did it empower him to devise it by will, and under the deed of 1842, the property belongs to all the children of Peter Long, deceased (the plaintiffs as well as defendants), and therefore your verdict should be for plaintiffs. The fact of the possession by Peter Long, and improvements made by him, would show nothing as to his intent in the purchase, as he had a life interest therein, and all he did was for the benefit of his children, to whom on his death it came under the deed of Í842. With the title to that part sold off we have nothing to do here. [We have answered as to the law in disposing of the points presented. We look upon it, as we have said, as a question of law for the Court, and therefore we direct you to find a verdict in favor of plaintiffs. There is no necessity for your leaving the box; the clerk will take your verdict. If we are wrong in the view we take of it, the Supreme Court will place us right.]”
    Defendant excepted to the answer to the points and to the charge.
    Verdict for the plaintiffs, upon which subsequently the Court entered judgment that partition be made.
    The defendants then took out a writ of error, assigning as errors the answer to the points, the overruling of the questions asked Dorsheimer and Sprecher, and those portions of the charge within brackets.

      William R. Wilson, for plaintiffs in error.
    If Ilertzler, the alleged trustee, is believed, and his testimony is borne out by the acts of the parties ever since the deed was made, there never was a trust and none intended. There was no occasion for one.
    The j ury may infer a mistake in the deed: Moore v. Dixon, 18 Norris, 53 ; Hays v. Quay, 18 P. F. Smith, 263 ; McGinity v. McGinity, 13 P. F. Smith, 38 ; Proseus v. Mclntire, 5 Barbour, 432.
    A resulting trust may be shown by parol: Strimpfler v. Roberts, 6 Harris, 283; Lingenfelter v. Richey, 12 P. F. Smith, 123 ; Lloyd v. Farrell, 2 W. N. C., 33; Iiouser v. Lamont, 5 P. F. Smith, 311; Harrold v. Lane, 3 P. F. Smith, 268 ; Farrell v. Lloyd, 19 P. F. Smith, 239 ; Dennison v. Goehring, 7 Barr, 175; Sampson v. Sampson, 4 S. & R., 329; Yanhorne v. Frick, 6 S. & R., 80.

      H. G. Brubaker, for defendants in error.
    Where a trust is set forth in the deed of conveyance, which is complete in every part, as in the deed in question, it cannot be varied by oral testimony other than to show duress, fraud, or clear mistake at the time of its execution. A resulting trust is nothing more than a trust arising by inference or implication. It can only arise in the absence of an express trust in the deed: Perry on Trusts, vol. i., s. 24.
    Mistake as well as fraud when alleged is never to be presumed. It must always be pi’oven, and the evidence ought to be clear, explicit and unequivocal.
    The title of the trustee was irrevocable: Hill on Trustees, 83; Harris v. McElroy, 9 Wright, 220; Ritter’s Appeal, 9 P. F. Smith, 13 ; Fellows’s Appeal, 12 Norris, 471; Dennison v. Goehring, 7 Barr, 182.
    Long, therefore, had no right to devise the property.
    May 29th, 1882.
   — Per Curiam:

The deed to Hertzler being expressly in trust was a conclusive answer to the allegation of a resulting trust. If a man purchase a property and takes a deed in the name of one or more of his children, it is prima facie an advancement, and there was no evidence to change the legal effect of the instrument.

Judgment affirmed.


text:
    January Term, 1882,
    No. 450.
    May 18th, 1882.
    Markley versus Kessering.
    1. The fact that a contract of marriage was entered into on Sunday does not invalidate it if there be subsequent recognition of it by the parties.
    2. Qncere whether a contract of marriage is invalid if made upon Sunday.
    3. In a suit for breach of promise of marriage the jury may fix the damages without knowing the financial means of either plaintiff or defendant.
    4. 'Evidence of coarse and mercenary language used by the plaintiff after the time of the alleged breach, and communicated to the defendant, is inadmissible.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkev, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Lancaster County.

    Case by Eliza Kessering against Charles Markley to recover damages for an alleged breach of promise of marriage.
    On. the trial in the court below, before Patterson, J , the plaintiff testified that she made the acquaintance of the defendant in the spring of 1879, at his home. He visited her in March, 1879, and called upon her about a dozen times up to July, and after that every evening, and very often in the afternoon. Upon Sunday, the 10th of August, 1879, “as regards getting married, he said he came to the conclusion he would like to get married, and he said he thought I would suit him better than any other woman he ever got acquainted with.....I was agreed, and I told him so, and a day was fixed for the wedding.” She made her dresses and underwear, and told her friends of the engagement. He gave her a silk dress for the wedding, and bought a trunk for the wedding tour.
    January 24th, 1880, he told her he had concluded not to be married. “ He said he was old and lame, and he didn’t think he would get married any more.” He never came back any more. There were other witnesses for the plaintiff, who testified to hearing the defendant say he was engaged to be married to the plaintiff; that he solicited her to name a day for the wedding; that it was postponed until February, 1880, because of the illness of defendant’s father; that she was making preparations, and he visited her frequently.
    The defendant admitted the visits, but denied the promise, the engagement, and the admissions testified to. He testified that he stopped visiting her in January, 1880; that his father was lying very sick then, and died February 14th; that sjie was sending over to the house for him and coming herself, and it was an annoyance to the family.
    The defendant called Elmira Stackhouse, and proposed to ask her whether in January, 1880, the plaintiff said, “ Charlie has quit coming. He leit me abruptly. This is the way with these Charlies. I never knew he had so little brains.” And also said, “ She hoped his father would livelong enough to see what trouble she would make him.”
    The offer was disallowed, the question not being confined to the time preceding or on January 24th, 1880, on which day the alleged breach occurred.
    The defendant excepted.
    The defendant called Augustus Hippie, and proposed to show that shortly after the alleged breaking off in January, plaintiff said to witness, “ Shedid not care a damn for Charlie; she wanted that pile of brick (pointing over to his father’s house), and she said she would make him haul- the rest of his days,” which language was communicated to the defendant.
    The offer was disallowed, and the defendant excepted.
    Counsel for the defendant asked the Court to charge:
    1. If the jury should find that there was a marriage contract, made on the 10th of August, 1879, between plaintiff' and defendant, being on Sunday, plaintiff cannot recover, the nature of such contract being executory, and such contract would be void.
    2. If the jury believe that the defendant entered into a contract of marriage with plaintiff, and stopped his visits by reason of his father’s sickness and death, and she refused to recognize and speak to him after his death, when he had recognized her, the verdict must be for the defendant.
    The Court answered these points as follows:
    1. We refuse that point, under the evidence of the case.
    2. We deny that point, as presented. It is for the jury to determine from all the evidence which party failed and refused to execute the contract by an actual marriage, if the jury find a contract.
    The Court, in its general charge, left it to the jury to ascertain whether or not a contract had been made, and said, inter alia:

    “You, the jury, may consider the pecuniary value of the marriage, when there is any evidence as to their, the parties, financial condition. There is very little evidence on that point. It is testified that the lady — the plaintiff — is about* thirty-five or six years of age, a woman of energy, supporting herself by her own application and industry, amiable in manner, and respectable, so far as you know from the evidence. As to the defendant, it is testified that he is about fifty-one years old, and worked at home for his father, his father being now deceased, but nothing is testified about his wealth. [In fixing the damages, we say that you may consider, without knowing the financial means of either plaintiff' or defendant] thepecuniary value of the marriage, the high or low or moderate station or condition in life that would be gained thereby, and the injury to the feelings, the affections, the self-respect, and the wounded pride of the lady, the plain-
    February 17, 1882. Verdict for the plaintiff for $998.75, upon which judgment was subsequently entered.
    The defendant then took out a writ of error, assigning as errors the refusal to affirm the points, etc., the part of the charge -within brackets, and the exclusion of the testimony of .Elmira Stackhouse and Augustus Hippie as offered.

      Steinmetz and Reinoehl, for the plaintiff in error.
    A promise to marry is a civil contract, differing in no legal aspect from any ordinary contract, and if made on Sunday and not excuted, is, like all other executory contracts made on Sunday, null and void: Shuman v. Shuman, 8 Casey, 90; Kepner v. Keefer, 6 Watts, 231; Fox v. Mensch, 3 W. & S., 444; Gangwere’s Estate, 2 Harris, 429.
    The only exceptions to the Act of 1794 are works of necessity or charity.
    The evidence excluded should have been admitted because if the expressions were made as alleged, no court would hold a .man bound to marry such a virago.

      D. McMullen and 8. H. Reynolds, for defendant in error.
    Even if the contract of marriage made in express terms on Sunday was void, the subsequent acts of the parties, in the absence of an express contract, would constitute an engagement: Moritz v. Melhorn, 1 Harris, 331; Baldy v. Stratton, 1 Jones, 318; McCormick v. Robb, 12 Harris, 44.
    It was not necessary to offer evidence to the financial ability of the defendant: Baldy v. Stratton, ut supra.

    May 29th, 1882.
   — Per Curiam :

There is nothing in any of the assignments of error. The fact that the contract of marriage was entered into on Sunday could not avail in view especially of the evidence of subsequent reqognition. The case was properly submitted to the jury.

Jugment affirmed.


author: Green, J.

text:
    January Term, 1882,
    No. 43.
    May 17th, 1882.
    Steinman et al. versus Miller et al.

    1. It is a fatal defect in a mechanic's lien, filed against nine lots, and-the houses erected on them, that the name of the owner of two of them does not appear in the lien.
    2. This defect is not cured by the fact that the contractor is named in the lien as owner, or reputed owner, and is the owner of seven of the lots.
    3. Houston’s Appeal, 6 W. N. 0., 162; and Barclay’s Appeal, 11 W. N. O. 359, followed.
    Before Sharswood, C. J.; and Mercur, Gordon, Paxson, Trunkey, Sterrett, and Green, JJ.
    Error to the Court of Common Pleas of Lancaster County.

      Scire facias sur mechanic’s lien, by George M. Steinman & Co., against John J. Miller, owner, or reputed owner, and contractor, with notice to Jacob Griel, J. P. Stormfeltz, Thomas Thurlow, and Mrs. Nancy Albert, terre tenants.
    Upon the trial in the Court below, before Livingston, J., the following facts appeared:
    On the 26th of October, 1877, Jacob Griel and John J. Miller entered into a Written agreement, by the terms of which Miller agreed to build on Lemon Street, Lancaster, Pa., nine two-story houses on the ground of Griel, and Griel agreed “ to grant and convey unto said John J. Miller, his heirs and assigns, clear of all incumbrances, except the mortgage hereinafter mentioned, seven of these nine lots of ground above mentioned, including said corner lot on Pine Street, said Miller to have the choice of lots.”
    The plaintiffs, between December 19th, 1877, and March 26th, 1878, inclusive, furnished materials to the amount of $320.85, which were charged to John J. Miller “ for Lemon Street houses.” There was evidence that they were furnished on the credit of the buildings.
    April 23d, 1878, the plaintiffs filed an unapportioned lien for the amount, naming John J. Miller as “ owner, or reputed owner, and contractor,” against the nine houses and lot of ground, setting forth, “ of wLich the said John J. Miller was or is the owner, or reputed owner, and the architect, constructor, and builder thereof, at whose instance and request the said hardware, paints, oils, etc., were done, furnished, and delivered as aforesaid.”
    Upon this lien a scire facias and an alias scire facias were issued. January 24th, 1882, the Court entered a judgment of nonsuit, and subsequently discharged a rule to show cause why the judgment of non-suit should not be stricken off.
    The plaintiff then took a writ of error, assigning as errors that the Court erred in entering the nonsuit and in not striking it off.

      H. M. North, for plaintiff in error.
    If Miller was either owner, or reputed owner, the statute is complied with. Ho was not only reputed owner, but owner. He had an equitable interest under articles of agreement: Gaule v. Bilyeau, 1 Casey, 521; Christine v. Maiiderson, 2 Barr, 863.
    The plaintiffs, in filing their lien, could not make the election for Miller and leave out two houses that Miller after-wards might elect to take. The right way for the plaintiffs to do was as they did, file their lien against Miller as owner, or reputed owner; and the production of the written agreement did not prove that Miller was not the reputed owner, and there was oral proof that he was the reputed owner, and, as he had an interest and an estate, the quantum or extent of it was immaterial: Sullivan v. Johns, 5 Wharton, 366 ; Yan Billiard v. Nace, 1 Grant, 233.

      W. A. Atlee, A. G. Beincehl, W. A. Wilson, and B. G. Kready, for defendants in error.
    Not having exercised due care, and having filed an unapportioned lien against adjoining houses, owned by different persons, one of the owners not being named in the lien, the Court was right in entering a nonsuit: Kerbaugh v. Henderson, 3 Phila., 17; Mersereau v. Kohler, 2 Leg. Opin., 133 ; Barclay’s Appeal, 11 W. N. C., 359 ; Houston’s Appeal, 6 W. N. G, 162.
    October 2d, 1882.
   — The opinion of the Court was delivered by

Green, J.

We think this case is determined by our ruling in the cases of Houston, Smith & Co.’s Appeal, 6 W. N. C., 162; and Barclay’s Appeal, 11 W. N. C., 359.

In both of them we held that the omission of the name of the owner from the claim was a fatal defect, and that this defect was not' cured by filing the lien against one who was a contractor, and naming him also as reputed owner. There is no question in the present case that Miller was the contractor, and also that he was owner of a part of the property in question. But he was never the owner and; had no estate or interest in two of the nine lots, against’ which, with the buildings on them, the lien was filed. The agreement between Griel, the owner, and Miller, the contractor, stipulated for the conveyance to Miller of seven of the lots as the consideration principally for the erection of the houses. The other two lots remained in the ownership of Griel, and, as the lien included them, it was necessary that he should be named as owner, and have notice as such of the proceedings.

In McOay’s Appeal, 1 Wr., 125, we held that the omission of the name of the contractor, when the work was done under a contract with one who was not the owner, was a fatal defect.

The reason given was that the name of the contractor is required by the statute to appear in the claim, and the absence of it is therefore fatal.

The same requirement is contained in the statute as to the name of the owner, and the omission of his name is equally fatal. The case of Christine v. Manderson, 2 Barr, 363, is not applicable, as it was expressly held to arise under the Act of 1806, which does not require the name of either the owner or contractor to appear in the lien. The objection to the sei. fa., under the Act of 1808, that it did not contain the name of the owner, was held unavailing when made by the contractor, who was not the owner: Gaule v. Bilyeau, 1 Cas., 521, has no application, as it only relates to the interest of the tenant in the land under the lease from the owner, and on that subject there is no controversy in the present case. Miller had an undoubted estate in seven of the lots under the agreement between him and Griel; and his description as owner, or reputed owner, is a full satisfaction of the requirement of the statute as to those lots. But, as to the other two lots, he had no estate or interest in them; and his actual or reputed ownership of the seven lots could not embrace them except at the peril of subjecting the property of the owner of the two lots to judicial proceedings and sale without his knowledge.

Judgment affirmed.