author: Mr. Justice Gordon

text:
    Cramp’s Appeal.
    1. Administrators sold real estate by order of the Orphans’ Court for the payment of debts; they charged themselves with the proceeds ; an auditor after notice by advertisement reported distribution amongst creditors, which, was confirmed and the administrators paid accordingly. A creditor who had not been before the auditor afterwards made affidavit that he held the first lien, and had not known of the report till after it was filed. The court recommitted the report and allowed the affiant his claim. Held to be error.
    2. A bill of review under the Act of October 13th 1840, is founded on an. error of law appearing on the record, or newly-discovered evidence.
    3. The petition must set forth specifically the error complained of, and that the balance has not been paid by the accountant.
    4. Administrators are not in default in not searching for liens against real estate of the decedent sold by them for paymeut of debts.
    5. Kussell’s Appeal, 10 Casey 258; Yeager’s Appeal, 10 Casey 173, followed.

      February 9th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Appeal from the Orphans’ Court of Philadelphia: Of January Term 1874, No. 331. In the estate of Anna B. Cramp, deceased.
    William G. Cramp and Charles D. Cramp, administrators, &c., of the decedent, filed an account of their administration, which was referred to W. H. Sutton, Esq., to audit, &c., and report distribution. The auditor sat on the 21st of December 1869, to hear the case, after due notice published in a newspaper of the city of Philadelphia. There were present on that day and at four subsequent sittings a number of parties interested as creditors. On the 4th day of February 1870, he made a report distributing the whole fund amongst creditors. No exceptions were filed to his report and it was confirmed absolutely, February 19th 1870. On the 24th of September in the same year, James Holgate presented to the Orphans’ Court his affidavit, setting forth that the “ accountants sold real estate against which deponent had a first-recorded lien, in the sum of $601.19, with accrued interest and costs, and debited themselves with the proceeds ; that said account was referred to W. Henry Sutton, Esq., as auditor, who has filed a report, distributing said fund, without searches and without regard to the lien of deponent; that said sale and account and report of the auditor has recently become known to deponent, and not until the same was filed.”
    The'Orphans’ Court thereupon issued a citation to the administrators, to show caúoe why the confirmation of the auditor’s report should not be set aside and recommitted to the auditor.
    To this citation the administrators answered: “ That the said auditor gave due notice of his appointment, and of the time and place at which he would meet the parties interested in said estate; that at said time and place, and at sundry other meetings before him, the creditors of the estate appeared and proved their claims; that the auditor’s report upon the account of these respondents and of distribution of the balance in their hands was filed on the 4th day of February 1870, and confirmed absolutely on the 1.9th day of February 1870; whereupon these respondents proceeded to and did distribute all of said estate in their hands, in accordance with the auditor’s report of distribution, long before the above-mentioned citation was issued; and that at the time said citation was issued these respondents had none of. said estate in their hands, but the said estate had then been fully administered upon the faith that said report was fully confirmed.”
    In delivering the opinion of the Orphans’ Court in the case, Peirce, J., said: — “ * * * The lien filed was record notice of the petitioner’s claim, and, by force of law, was equivalent to actual notice to them. It was their duty to retain funds to pay it, if not disputed, and at all events to retain sufficient funds to answer the demand if it should be established. If from indifference or a want of knowledge of their duty they did not have the records searched to see what liens were against the property they sold, the lien-creditor is not to suffer; the fault is their own, and if there be loss, the loss should be theirs. They cannot protect themselves by the fact that the distribution was made under direction of the Orphans’ Court. It was their duty to make known to the court, as required by Act of Assembly, this claim and all other claims of which they had either legal or actual notice, and if they had done so, the court would have seen that the rights of the creditor were protected.
    “ By the Act of 29th March 1832, section 19, whenever there shall not be sufficient assets to pay all the debts of a decedent, it shall be the duty of the Orphans’ Court to appoint auditors to adjust the assets among the respective creditors, according to the order established by law, with a proviso that no creditor, who shall neglect or refuse to exhibit his account to the executor or administrator, within twelve months after public notice, as prescribed by the act, shall be entitled to receive any dividend of the remaining assets. But the respondents cannot avail themselves of this act, because they had what the law regards as notice of the claim, and they chose to permit distribution to be made without giving notice to the auditor or court of' the claim, and protecting it as was their duty. Both of the foregoing acts clearly point out that it is the duty of the executor or administrator to make known to the court the claims against the decedent’s estate, it follows, as a consequence, that the accountants cannot protect themselves by the fact that the distribution was made under the direction of the court, after a confirmation of the auditor’s report, when they failed in their duty of having presented to the court or its auditor a statement of the demand, of which they had legal notice. * * *
    “ The order asked for in this case will be made.”
    In his report upon the recommitment, the auditor said :—
    “ * * * That, conceiving the opinion of Judge Peirce to be binding upon him, notwithstanding the fact that petitioner had due notice, in accordance with the rule of court, of the appointment of the auditor and of a meeting to audit, settle, and adjust the account of said administrators and report distribution of balance, and notwithstanding the fact that the report of the auditor had been confirmed and distribution actually made about one year before the petition in this case was filed, he called before him the counsel of the parties, &c.”
    [The auditor then reported the facts as to Holgate’s claim.]
    “ Under the opinion of Judge Peirce the auditor thinks he has no discretion, and conceives it to be his duty, contrary to his own convictions, to redistribute the fund. It was, indeed, suggested that as the accountants had distributed the money before the order to recommit had been made, there could be no distribution of the proceeds other than that which had already taken place; but as such distribution was set forth in the answer to the petition, and not deemed by the court a bar, I must proceed in this case as if no distribution had taken place, leaving the accountants to proceed against the distributees to refund so much as may be required.”
    He then made a distribution, allowing Holgate’s claim as a lien in full, and awarding to the other creditors about fifty-five per cent, of their claims.
    The administrators filed the following exceptions to the supplemental report:—
    1. The reference back to the auditor of his original report was unwarranted in law.
    2. The supplemental report and redistribution of the estate is unwarranted in law.
    8. The auditor has awarded to Holgate the amount of his claim.
    The Orphans’ Court dismissed the exceptions and confirmed the second report.
    The administrators appealed to the Supreme Court and assigned errors as follows :—
    1. Referring the report of the auditor back to him to let in the claim of James Holgate, after said report had been confirmed absolutely and distribution had been made in accordance with its directions.
    2. Ordering a redistribution of the assets of the estate of Anna B. Cramp, deceased, after having previously decreed a distribution, which had been made in pursuance of said decree before redistribution was asked for.
    3. Decreeing that the accountants should pay the claim of James Holgate, after they had'distributed the assets in their hands, in obedience to an absolute decree of said court.

      W. S. Price, for appellants.
    — In a petition for review in the Orphans’ Court, it is indispensably necessary that it be alleged in the petition that the balance found due by the decree sought to be reviewed has not been paid over by the accountant: Russell’s Administrators’ Appeal, 10 Casey 258. Here the balance has been paid out boná, fide. Fie referred also to Stevenson’s Appeal, 8 Casey 318.

      P. W. Sellers, for Holgate, appellee.
    February 21st 1876.
   Mr. Justice Gordon

delivered the opinion of the court,

On the 19th of November 1869, the final account of the appellants, administrators of the estate of Anna B. Cramp, deceased, was referred to William H. Sutton, Esq., for settlement and distribution. The auditor made report, filed February 4th 1870, finding a balance in the hands of the accountants of $1514.41, and distributing the same among certain creditors and others as therein set forth. This report was confirmed finally and distribution ordered Febru'ary 18th 1870, and, in pursuance to this decree, the money in the hands of the administrator was paid over to the persons thereto entitled. On the 16th of September following, James Holgate filed an affidavit, setting forth “that the above-named accountants sold real estate against which deponent had a first recorded lien in the sum of $609.19, with accrued interest and costs, and debited themselves with the proceeds; that said account was referred to W. H. Sutton, Esq., as auditor, who has filed a report distributing said fund without searches, and without regard to the lien of said deponent; that said sale and account and report of the auditor has recently become known to deponent, and not until the same was filed.”

Upon- this paper a citation w’as awarded against the appellants to show cause why the confirmation of the auditor’s report should not be set aside and their account recommitted. To this the administrators made answrer, setting forth the facts substantially as as heretofore stated- After hearing, the court set aside the report and decree and recommitted the account. The auditor then, in obedience to the order of the court, though protesting thalt it was contrary to his own convictions, made his second report, finding that the city of Philadelphia, to the use of Joseph Holgate, had a lien against the property sold, and from which the fund for distribution arose, for paving, entered in the District Court, to March Term 1867, and applying the sum of $601.19 to the extinguishment thereof. Exceptions to this report were duly filed, were dismissed and the report confirmed. From this action of the court the administrators have appealed, and thus the case is now before us.-

Under the Act of October 18th 1840, section 1, Pamph. L. 1, the judges of the Orphans’ Court, at any time within five years after final decree confirming the original or supplemental account of any executor, administrator or guardian, upon petition of review being presented by any -person in interest, “alleging errors in such accounts, which errors shall be specifically set forth in said petition of review, and said petition and errors being verified by oath or affirmation, shall grant a rehearing of so much of said account as is alleged to be error in said petition of review, and give such relief as justice and equity may require.” “Provided, this act shall not extend to any cause where the balance found due shall have been actually paid and discharged by an executor, administrator or guardian.”

On this statute it was ruled in Yeager’s Appeal, 10 Casey 173, that the bill of review is in the nature of a new suit founded on some substantial error of law appearing on the record of the former case, or on newly-discovered evidence; that the petition must set forth specifically the error complained of; that a decree settling an account decides every item of it and fixes the balance; that the office of a bill of review, in such case, is to. surcharge and falsify, and in order to be entertained at. all it must specify the erroneous items affecting the final result and must support its averments by evidence. In the same book, Russell’s Appeal, p. 258, the same doctrine is repeated, with the addition, that it is necessary to allege in the bill, that the balance found due by the decree sought to be reviewed, has not been paid over by the accountant. '

Judged by the statute and these decisions, the application of Holgate is found utterly wanting. It is in the form of an affidavit, and concludes without a prayer for anything. It complains of no mistake in the account, but alleged only a default on the part of the auditor in 'not making search for liens ; a default, if one.it be, which surely should not be visited upon the accountants ; neither does it set forth what the act requires, if a review is to be granted, that the balance found due by the decree was not paid.out by those charged with its distribution.

As, then, this application was wanting in the essential features of a bill of review, .the court below should have refused to entertain'it.

And now, February 19th 1876, the decree of the Orphans’ Court of the city and county of Philadelphia, of March 3d 1874, confirming the auditor’s report of November 7th 1873, is reversed and set aside, together with that report, and the report filed February 4th 1870 is now restored and confirmed; the-application of the appellee for a review is dismissed, and it is ordered that he pay all costs accruing under said application, and the costs of this appeal.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    DeHaven versus Kensington National Bank.
    1. A man dressed as a police officer told the cashier in presence of a watchman of the bank, that he had been directed by the lieutenant of the police to warn him. that there were “suspicious characters about;” the cashier told the watchman to admit no one, but he made no inquiry of the lieutenant. After the bank was closed — there then being another watchman there — the first was called from outside by name; he opened the door ; a man dressed as a policeman and two others in ordinary dress came in ; they overpowered the watchmen, took securities, &c., from the vault, including plaintiff’s, deposited for safe-keeping and kept as the bank’s securities. Held, the bank being a voluntary bailee without reward, the evidence was not sufficient to charge them with negligence.
    2. Whether a national bank can take securities on deposit for safe-keeping, not decided.

      February 11th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of January Term 1874, No. 355.
    This was an action on the case by George Dellaven against the Kensington National Bank. The bank had been originally incorporated by the Commonwealth of Pennsylvania, and afterwards, under the Act of Congress of June 3d 1864, and the Pennsjdvania enabling Act of August 22d 1864, became a national bank. The declaration contained three counts:—
    1. That defendants were a banking corporation and “ as such had been used to receive and take into their charge money and securities for the loan thereof of divers customers of and dealing with the defendants, to be safely and securely kept and delivered up to such customers on request,” that the plaintiff had been for a long time a customer, and had dealt with defendants, and on the 2d of February 1871, had delivered to them eight bonds of the United States, altogether of the value of $9000, to be safely kept and delivered to plaintiff on request, and averred that the defendants did not keep the bonds nor deliver them when requested, but “so negligently conducted themselves that by tbeir default of ordinary care the bonds were wholly lost to the defendant.”
    The second count was that in consideration that the plaintiff would deposit money and securities with the bank, they agreed to keep them safely, to be delivered on request; that the plaintiff delivered the bonds béfore mentioned to them; that they were lost to plaintiff by defendants’ negligence.
    The third count was in trover.
    The case was tried January 15th 1874, before Thayer, J.
    The plaintiff testified:—
    “I kept an account for fifteen or twenty years in defendant’s bank; I deposited six $1000 bonds and two $500 bonds in the bank; they were in a tin box, with a lock on it; the key was on the box, tied on outside, under orders of the bank; Mr. Ovington, a clerk of the bank, cut off the coupons for me; sometimes McConnell, the cashier. * * * I went to the bank; they told me the bank was robbed; I had no doubt it was robbed from what I saw; * * * the bank had never loaned me anything on these securities.”
    Being cross-examined, he said: “ I thought the bonds were safer in the bank than in my own house; * * * the box was left there for safe custody; it was my box ; kept in a place six or eight feet square, built of brick; it had iron doors; when I went to get the coupons cut off, the man would go into this place and get the box; I saw my own box there, broken open. * * * ”
    The cashier testified: “ The bank was robbed on the night of 2d February 1871; * * * a man came into the bank, and the watchman sent him back to me; he was dressed in a policeman’s uniform, * * * he said the lieutenant had sent him down $0 say there were suspicious characters about; * * * it was a few minutes before 5 p. M.; I locked up the vault, &c.; and said to the watchman, ‘ You must be very careful; dont’t admit any one into the bank ;’ then I went home; * * * I left the watchman at the bank; he was the only person there at that time; another watchman should have come before 6 o’clock; 1 did not stop to see the lieutenant of police on my way home.”
    Being cross-examined, he said: “ The place in which the box was kept was the vault of the bank ; * * * where the specie used to be kept; I kept the keys of the vault; the vault was carefully locked up on the night of the robbery and carried home; it was opened by cutting off the outer door, and wrenching off the inner door by great violence; two watchman were kept inside the bank at night; everything that night was the same as for years past; there was an iron chest in the vault; there was in the vault another box, walnut box, containing the securities of the bank, notes and securities which the bank held; that lay in the vault in same way as plaintiff’s box; it had not been opened, although the key was in it; there was also about twenty-five tin boxes like plaintiff’s; I had one of my own; all in this vault; my box was robbed at same time, of valuable bonds and money; the bank had no other place in which it could have deposited the boxes which was more secure than the vault; * * * I told the watchman to be careful and not to permit.any one to come in the bank; the watchmen were armed each with a pair of pistols and a revolver besides; and Murphy had also a cutlass, and a rifle, and á large horse pistol; they had ammunition; * * * Murphy had been there over six years; Holmes over two years; * * * inquiry was made by the board, which satisfied them that they were proper persons; we never had any reason to suppose to the contrary. * * * ”
    John Holmes, testified: “I was watchman of the bank on 2d February 1871; I was at bank at 4J p. m., when a rap came at the door; I asked, ‘Who was there?’ the reply was, “Is that you Mr. Holmes?’ I replied, ‘Yes;’ he said, ‘Open the door, I have something important to tell you;’ as some of the bank officers were there, I opened the door and peeped out, and saw a man dressed in police uniform; he said, ‘Mr. Holmes, I came down from the station-house, and was sent by Lieutenant Sharp to tell you that he thinks the bank may be attacked to-night.” There was another man writh him ; he was in citizen’s clothes; the policeman said, ‘Are you alone?’ I said, ‘The cashier is in the back room; I then, let him in, and he went back to the cashier; he remained there a very short time and then went out; * * * the cashier said, ‘If any one tries to break in, shoot them down;” Murphy came about 6 o’clock; * * * Murphy went up stairs; * * * I sat down by the vault door, when a rap came at the door; Murphy ran to the door and hallooed, ‘Who’s there?’ the man outside said, ‘Is that you Mr.“Holmes;’ Murphy said, ‘No; but he’s here,” and then he opened the door; then a man in police uniform came in with two others in citizen’s clothes; Murphy then shut the door; they sat down and asked us questions; how the bank was secured, &c.; and about fire-arms, &c.; we told them we were very well prepared; we always kept two pistols loaded on the table; one of the men said to Murphy, ‘ We saw two men up by the corner as we came along; we think they are two of the men who are going to do this job; will you go out and look at them?’ Murphy went out with the man, and I shut the door; the policeman then asked for water; * * * I started to get it; they both followed me to the back door, and while I was drawing the glass of water, they clasped my arms; they then drew a rope over my head; * * * secured me with hand-cuffs, and tied my limbs, and let me lie on the floor; * * * one of them stood over me and held a pistol to my head; * * * in about twenty minutes Murphy came in, and the policeman gave him a clinch; I heard the tussel at the door; they secured Murphy and carried him back to the cashier’s room; they then carried me there too; Murphy had the key with him and opened'the door himself ;• each of us had a key; I then heard them operating on the vault; a man stood over me with a pistol; there was some hard pounding before they got into the vault; * * * our instructions were to let nobody in, but were ordered to communicate from the up stairs with any one who came. * * * ”
    The other watchman testified substantially in the same manner.
    Plaintiff having closed, the court directed a nonsuit; this was assigned for error on the removal of the record to the Supreme Court, by writ of error.

      D. W. Sellers, for plaintiff in error.
    — The watchman in disregard of the 'instruction of his principal, and being misled by the conduct of the cashier, did admit three persons who stole plaintiff’s securities. If the cashier had called upon the lieutenant of police, the robbery would have been discovered; and if the servant had obeyed instructions, the actual robbery would not have occurred. The bank would not be liable for the felony of its servants; but they are liable for their gross negligence. Whether the evidence submitted proved that, was wholly for the jury : Bank v. Smith, 12 P. F. Smith 54; Scott v. Bank, 22 Id. 471.

      A. D. Campbell and R. C. MoMurtrie, for defendants in error.—
    There is a distinction between the liability of a bailee for hire and that of a mere depositary or gratuitous bailee: Bank v. Smith, 12 P. F. Smith 54; Scott v. Bank, 22 Id. 471; Lance v. Greiner, 3 Id. 204. A gratuitous bailee is liable only for gross negligence; the failure to use. that degree of care which would be exercised by any man of ordinary common sense and prudence: Coggs v. Bernard, Ld. Raym. 909; 1 Sm. Lead. Cas., part 1, 369 (*283), and notes; Finucane v. Small, 1 Espinasse 315; Doorman v. Jenkins, 2 Ad. & El. 256; Tracy v. Wood, 3 Mason 132; Knowles v. Railroad Co., 38 Maine 55; Foster v. Essex Bank, 17 Mass. 479; Schmidt v. Blood, 9 Wend. 268 ; Beardslee v. Richardson, 11 Id. 25; Edson v. Weston, 7 Cowen 278; Monteith v. Bissell’s Admr., Wright’s Ohio R. 411; Sodowsky v. McFarland, 3 Dana (Ky.) 204; Wiser v. Chesley, 53 Mo. 547; Stanton v. Bell, 2 Hawks 145; Tompkins v. Saltmarsh, 14 S. & R. 275 ; Lloyd v. The West Branch Bank, 3 Harris 172. The burden of proof is upon the plaintiff to show a loss resulting from such degree of negligence as would render the depositary liable, and mere proof of loss is not evidence of such negligence: Giblin v. McMullen, Law Rep. 2 Privy Council 317; Smith v. Bank, 99 Mass. 611; Pitlock v. Wells, Fargo & Co., 109 Id. 452; Knowles v. Railroad Co., 38 Maine 60. The scintilla doctrine has long since been exploded: Ryder v. Wombwell, Law Rep. 4 Exch. 31; Jewell v. Parr, 13 C. B. 916; Toomey v. London & Brighton Railway Co., 3 C. B. N. S. 150; Wheelton v. Hardisty, 8 E. & B. 262; Improvement Company v. Munson, 14 Wall. 442; Welfare v. Brighton Railway Co., Law Rep. 4 Q. B. 692; Searle v. Laverick, Law Rep. 9 Q. B. 122. The court should give imperative instructions to the jury where the facts are undisputed: Malson v. Fry, 1 Watts 433; Koons v. Steele, 7 Harris 210 ; Kerr v. Wright, 1 Wright 196; Railroad Co. v. Evans, 3 P. F. Smith 250. The question, of negligence is one of mingled law and fact, to be decided as a question of law by the court when the facts are undisputed or conclusively proved: Gagg v. Vetter, 41 Ind. 228; Green v. Hollingsworth, 5 Dana (Ky.) 173 ; Railway Co. v. Butts, 7 Kans. 308; Trow v. Railroad Co., 24 Verm. (1 Deane) 487; Railroad Co. v. Heileman, 13 Wright 60; Railroad Co. v. Beale, 23 P. F. Smith 504; Railroad Co. v. McClurg, 6 Id. 294; Railroad Co. v. Andrews, 14 Am. L. Reg. N. S. 566; Shipley’s Case, 31 Md. 270 ; Leaming v. Wise, 23 P. F. Smith 176; Nunez v. Dautel, 19 Wall. 560 ; Express Co. v. Wile, 14 P. F. Smith 201; Phila. & Reading Railroad Co. v. Yerger, 23 Id. 121; Adams Express Co. v. Sharpless, 27 Id. 516. Gross negligence cannot be predicated of a designed act except where so much skill is contracted for as ought to prevent the mistake: Shiells v. Blackburne, 1 H. Blackst. 158 ; Moore v. Mourgue, Cowp. 480 ; Kohl v. Love, 8 Vroom 5. It is at least a question how far a national bank is liable for the loss of valuable^ deposited with it for safe-keeping: Wiley v. Bank, 14 Am. L. Reg. N. S. 342; Weckler v. Bank, Id. 609; Fowler v. Scully, 22 P. F. Smith 456; Bank v. Bank, 7 Leg. Gaz. 134; Railway Co. v. Turner, Law Rep. 8 Ch. App. 149; In re Bank, Law Rep. 5 Id. 444.

      February 21st 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

— We discover no sufficient evidence in this case to charge a merely voluntary bailee, without reward, for a loss by robbery. Waiving the question of the want of power in a national bank to take bonds, &c., on a deposit for safe-keeping, the officers here took as much care of them as they did of the property of the bank. The robbery was effected by a most ingenious and unexpected device, calculated'to succeed with the most careful of persons, and made successful by its very openness and apparent freedom from design. The cashier had no reason to suspect an attack on his bank, the message of the pseudo police officer being merely that there were suspicious persons about; that is, in the city. Hence his omission to call at the police precinct was no evidence of such carelessness as would charge the bank. He took all proper precautions. The nonsuit was properly granted.

Judgment affirmed.


author: Mr. Justice Sharswood

text:
    Sheetz et al. versus Hanbest’s Executors.
    1. On the distribution of proceeds of a sheriff’s sale a judgment can be attacked by other creditors collaterally only on the ground of collusion.
    2. Creditors may show any matter arising subsequently to the judgment which the defendant could show in a scire facias or action of debt.
    3. Beal estate of a defendant in a judgment was sold at sheriff’s sale; a feigned issue was framed in the distribution of the proceeds, creditors being plaintiffs and the judgment plaintiff defendant; he died before trial and his executors were substituted as defendants. Held that the defendant in the judgment was a competent witness for plaintiffs in the issue.
    4. The Act of April 15th 1869 is an enlarging statute; it rendered no person incompetent as a witness who was competent before its passage.
    5. The defendant in the execution having no interest in the question in the issue, the death of the plaintiff had no effect upon it.
    6. Clark v. Douglass, 12 P. F. Smith 408 ; Ferree v. Thompson, 2 P. F. Smith 353; Thompson’s Appeal, 7 P. F. Smith 175, followed.
    February 14th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Error to the District Court of Philadelphia: Of July Term, 1874, No. 8.
    This was a feigned issue, framed December 6th 1867, in which Peter Sheetz and others, creditors of John D. Lentz, were the plaintiffs, and Thomas P. Hanbest the defendant; on the 19th of August 1873, the death of the defendant was suggested and Isaac Norris and Philip Hanbest, his executors, ivere substituted.
    The case was tried December 30th 1873,.before Briggs, J., when the following circumstances appeared :—
    On the 29th day of July 1861, judgment was entered in the District Court in favor of Hanbest against John D. Lentz; the judgment was afterwards revived by scire'facias. The defendant’s real estate was subsequently sold by the sheriff under a prior lien, the proceeds brought into court and an auditor appointed to report distribution. Some of the creditors appeared before the auditor and contested the validity of Hanbest’s judgment: he demanded an issue which was awarded by the court: the questions of fact in the issue were,
    1. The judgment under which the plaintiff claimed was obtained by fraud.

      2. No such sum was due at the time of the entry of the judgment in favor of the plaintiff, as stated in the note.
    3. The note on which the said judgment is entered was signed by John D. Lentz in blank, when no sum or amount was stated in said judgment note.
    On the trial the plaintiffs called John D. Lentz as a witness. He was objected to by the defendants as incompetent, Hanbest being dead. The court rejected the offer and filed a bill of exceptions ; plaintiff offered no other evidence, and a nonsuit was directed.
    The plaintiff took a writ of error and assigned for error, the rejection of Lentz as a witness and directing a nonsuit.
    A. Thompson and W. S. Price, for 'plaintiff in error.
    — The defendant in an execution was always a competent witness in aeon-test between judgment creditors over a distribution of the proceeds of a sheriff’s sale of his property : Smith v. Wagenseller, 9 Harris 591; Galway’s Appeal, 10 Casey 242. When there is an issue between a prior and subsequent judgment-creditor of the same debtor to try whether the bond upon which the prior judgment was entered was executed by the debtor under a false representation as to the amount of the bond, the debtor is a competent witness for the creditors contesting the bond : Ferree v. Thompson, 2 P. F. Smith 353.
    The Act of April 15th 1869, Pamph. L. 30, 1 Br. Purd. 624, pi. 1, is an enabling statute, and does not apply to a witness competent before its passage : McFerren v. Mont Alto Iron Co., 26 P. F. Smith 181.

      P. 0. Brewster (with whom was A. V. Parsons), for defendants in error.
    — The witness was not competent because Hanbest was dead: Graves v. Griffin, 7 Harris 176; Card v. Card, 39 N. Y. 317 ; Breneman’s Estate, 15 P. F. Smith 298 ; Karns v. Tanner, 16 Id. 297; Allum v. Carroll, 17 Id. 68 ; Eilbert v. Finkbeiner, 18 Id. 243 ; Gyger’s Appeal, 24 Id. 42; McFerren v. Iron Co., 26 Id. 187; Hanna v. Wray, 27 Id. 27; Taylor v. Kelley, 30 Id. 98. The creditors cannot avail themselves of any allegation of a fraud practised upon Lentz. Nothing but fraud against creditors would avail: Dougherty’s Estate, 9 W. & S. 189; Lewis v. Rogers, 4 Harris 18 ; Thompson’s Appeal, 7 P. F. Smith 175.
    March 2d 1876.
   Mr. Justice Sharswood

delivered the opinion of the court,

If there is any point which may be regarded as settled in this state, it is that, upon the distribution of the proceeds of a sheriff’s sale a subsisting judgment can only be attacked by other creditors collaterally on the ground of collusion : Dougherty’s Estate, 9 W. & S. 189 ; Lewis v. Rogers, 4 Harris 18; Thompson’s Appeal, 7 P. F. Smith 175 ; Clark v. Douglass, 12 P. F. Smith 408.

They may show indeed any matter of defence arising subsequent to the judgment, which the defendant himself could do in an action of debt or scire facias upon it. The jury below were empannelled to try three issues, which had been ordered by the court. Neither the learned judge before whom the issues were tried, nor this court upon a writ of error to the judgment, have any right to modify them, or consider what they ought to have been. They may indeed construe them, as was done in Clark v. Douglass, supra. The first of these issues might perhaps be construed so as to present the question, whether the judgment under which the plaintiff claimed, was obtained by fraud on creditors, but the other two issues Avere distinct, that the sum for' which the judgment was entered Avas not due, and that the note Avas signed by Lentz in blank. ■ What bearing the decision of the.se issues would have upon the distribution Avas not for the judge below nor for us.

Whatever these issues were, we think it very clear that Lentz Avas a competent witness. It was so held in Ferree v. Thompson, 2 P. F. Smith 353, Avhen the issue Avas expressly as to a fraud upon the debtor, and not upon creditors, and which 'in the subsequent case of Thompson’s Appeal was held by this court to be entirely without any effect upon the distribution. Whether, where an insolvent man gives his creditor a blank note or judgment, which the creditor afterwards fills up Avith a much larger amount than that which is justly due, such an act is not evidence of collusion to defraud creditors, is a question Avhich is not before us upon this record and Ave express no opinion.

The learned judge below considered that the witness, Lentz was rendered imcompetent, under the provisions of the Act of April 5th 1869, Pamph. L. 30, entitled “ An act alloAving parties in interest to be witnesses.” We think that this was an err.or. That act was intended as an enlarging statute. No person competent before the passage of the act was rendered thereafter incompetent, eitherby the words or the spirit of the law. Regarding the issue beloAV as an action by executors, the statute declares that it shall not apply in such an action, in other Avords, that the question of competency or incompetency of witnesses shall remain as if the statute had not been enacted.

This was an issue between creditors, to which Lentz was ho party, and whatever interest he might have in the question, he could neither gain or lose by the verdict, nor would it' be given in evidence in any subsequent proceedings, for or against him. The death of Hanbest could have no effect upon the question.

Judgment reversed, and venire facias de novo awarded.


author: Pee Curiam.

text:
    Delaware River Steamboat Co. versus Burlington and Bristol Steam Ferry Co.
    1. The plaintiffs, a ferry company from Bristol to Burlington, across the Delaware river, had “slips” into which they ran their boats on the side-of wharves in those towns belonging to the defendants, a steamboat company, running on the river from Philadelphia to the same towns. The defendants’ boats when moored at t-heir wharves prevented the plaintiff’s boats from going in and out. Held that the defendants had the same right of navigation in front of the slips as in any part of the river, and to moor their boats in front of their wharf, but had no right wilfully to obstruct the plaintiffs in the use of their slips.
    2. The declaration was that the plaintiffs owned the slips, &c., and the defendants wilfully and wrongfully obstructed their ways, the ferry and the slips, &c.; the plea was “Not guilty.” This pleading raised the questions of the plaintiffs’ right to the slip, and its free use as a place of landing, and the wilful and unlawful obstruction by defendants.
    3. The questions did not concern the right of navigation to the public in general, and to the parties in particular-, but an unlawful privation of the land used, where private rights of property existed.
    February 14th 1876.
    Before A&new, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Certificate from Nisi Prius : Of January Term 1874, No. 60.
    This was an action on the case, brought September 30th 1873, by the Burlington and Bristol Steam Ferry Company against the Delaware River Steamboat Company.
    The declaration contained two counts. The issue tried was on the second count. It set out that the plaintiffs were owners, under charters from the states of Pennsylvania and New Jersey, of a ferry from a wharf and slip in the city of Burlington, New Jersey, and adjoining a wharf belonging to that city, to a wharf or slip in the borough of Bristol, in Pennsylvania; and for the purposes of the ferry the. plaintiffs leased real estate at the slips in Burlington and Bristol, on which they erected wharves, piers, slips and the necessary appendages, and procured steamboats for the use of the ferry, and therefore had the right to free ingress and egress for their steamboats, agents, &c., into and from their wharves and slips, across the Delaware river from Bristol to Burlington and back; and averred that the defendants “wilfully and unlawfully intending to injure” the plaintiffs, &c., stopped up and obstructed tbe ferry, wharves, slips, &c., so that the plaintiffs could not enjoy them, &c.
    The defendants pleaded “Not guilty.”
    The case was tried March 20th 1874, before Mr. Justice Williams.
    The evidence of the plaintiffs was, that they were the owners of the ferry steamboat “Ellwood Doran,” running between Bristol and Burlington. The defendants owned the steamboat “John Warner,” which ran from Philadelphia to Bristol, and across to Burlington and back again to Philadelphia. The defendants lease the wharves at which they land in Bristol and Burlington from the same persons from whom the plaintiffs lease their slips, which are alongside of the wharves. The defendant’s pier at Bristol is from 40 to 60 feet, and at Burlington from 60 to 90 feet. The “Warner” is 226 feet long. When the “Warner” is lying at either wharf she extends beyond the slip, so that whilst she is there the plaintiffs’ steamboat cannot get into the slip, nor, if in, get out. This prevents the “ Doran” from making her regular trips, and her passengers miss the railroad trains with which they design to connect. The plaintiffs’ boat makes the round trip about every forty or sixty minutes. They could get out and in by being “careful and cautious;” the detentions would be for several minutes. Passengers who had missed making connections said they would go by the “Warner,” because the “ Doran” could not get out. The captain of the “Warner” had been spoken to on the subject and requested to remove from the way of the “Doran.” This detention occurred frequently. Plaintiffs suffered damage to the extent of $200 or $300 a year. ,
    The defendants gave evidence that they had been running to and from those piers from the year 1852, except five years. About fifteen years ago they began to give plaintiffs the fares they received for carrying passengers across the river. They do not stay at the wharves longer than is necessary. They would have to give up the landing to avoid the detention of the plaintiffs’ boat. If plaintiffs would run differently as to time, there would be no interference.
    The defendants request the court to charge:—
    1. That defendants are not liable for any injury arising to plaintiffs by reason of mooring to their own piers, unless there was a malicious exercise of the defendants’ right.
    2. If the plaintiffs could arrange their time so that the coming and going of the “Warner” would not conflict with the exercise of their right to come and go to their slips, it is an injury caused by their own neglect of duty for which defendants are not liable.
    3. If the running of plaintiffs’ boat was at such irregular intervals that defendants could make no provision to guard against their detention, then defendants are not liable.
    The court declined to charge as requested, and instructed the jury that the defendants had the same right to navigate the river Delaware in front of the plaintiffs’ slips that they had to navigate any other part of the river; but they had no right to moor their steamboat immediately in front of the plaintiffs’ slips so as to obstruct the plaintiffs’ use thereof, and prevent them from running their ferry boat into and out of the slips for the purpose of receiving and landing passengers'; that the defendants had the undoubted right to tie up and moor their steamboat in front of their own piers, but they had no right to overlap the plaintiffs’ slips with their steamboat and thereby prevent them from running their ferry, boat into and out of the same; and if they did, such obstruction was unlawful, and plaintiffs might recover therefor.
    The verdict was for the plaintiffs for $371.
    The defendants took a writ of error.
    They assigned for error the refusal of their points and the charge of the court.

      D. W. Sellers (with whom was H. 0. Thompson), for plaintiffs in error.
    — The right of navigation includes the right to moor. Delay to another exercising a like right if unavoidable is damnum absque injuria: Commonwealth v. Passmore, 1 S. & R. 217 ; Baker v. Lewis, 9 Casey 301. There was no liability on the defendants unless there had been malice.
    6r. R. Snowden and J. R. Snoivden (with whom was A. H. Jones), for defendants in error.
    — The owner of a wharf or slip must use it in such a manner as not to interfere with the use of the lands or wharves of contiguous proprietors: Bainbridge v. Sherlock, 7 Amer. Law Reg., N. S. 720 ; Irwin v. Dixon, 9 How. 33; Price v. Ruddiman, 10 Mich. 125.
    March 4th 1876,
   Judgment was entered in the Supreme Court,

Pee Curiam.

— The declaration of the plaintiffs charged that the defendants wrongfully, wilfully and injuriously, stopped up and obstructed the ways, passages, wharves, and slips of the plaintiffs. This was the second count, and in it the means of obstruction was not stated. The plea was not guilty, and the issue of course was, whether the defendant did wilfully and wrongfully stop up and obstruct the passage way into the plaintiff’s slips, the plaintiffs having averred the tenancy of the slip, and a right of ferriage across the river from and to their slip. It was only in the evidence that the means of obstruction appeared to be by the defendants permitting the steamboat “John A. Warner” to lie across the entrance of the plaintiffs’ slip, whereby free egress and regress out' of and into the slip were prevented. It is evident, therefore, that the primary questions in this issue were the plaintiffs’ right to the slip as a place of land mooring, and to its free use as a place of landing, and the wilful and unlawful obstruction of this right. The question did not concern the general right of navigation as common to the public, and to these two parties in particular, but concerned an alleged unlawful privation of the land use, where private rights of property existed. Hence it is plain that the judge at Nisi Prius was by this issue called upon to instruct the jury only upon the primary questions raised by the issue, unless the defendants asked instructions upon any qualification which they deemed to arise out of the evidence before the court. In this view of the case ,the judge gave pertinent and proper instructions. He said, the defendants had the same right to navigate the river in front of the plaintiffs’ slip as they had to navigate any other, part of the river, and an undoubted right to tie up and moor their steamboat in front of their own piers. On the other hand, he said, the defendants had no right to moor their steamboat immediately in front of the plaintiffs’ slip, so as to obstruct the plaintiffs’ use thereof, and prevent them from running their ferry boat in and out thereof, and had no right to overlap the plaintiffs’ slip, and thereby to prevent them from running their ferry boat in and out of the same, and if they did, such obstruction was unlawful. Now, clearly there was no error in this instruction. It stated the right of each party, and it was then a question of fact whether the defendants did thus wrongfully and wilfully obstruct the slip and the plaintiffs’ use of it. Now if the defendants thought their obstruction was only partial, and so far only as their own right to the use of their own wharf would justify a mere temporary obstruction, and therefore would be a reasonable and not a wrongful and injurious interference with the plaintiffs’ shore rights, it was .their duty, if the evidence admitted of this view, to ask the proper instruction upon their right thus far to interfere with the plaintiffs’ right of landing and mooring in their slip. The question was one of fact, dependent upon the evidence, and therefore to be decided by the jury. Now the defendants claimed no direction to the jury upon the question of their reasonable exercise of their own right, but demanded an instruction that the defendants’ interference with the plaintiffs’ right was justifiable, unless they maliciously exercised their right to the prejudice of the plaintiffs.. This was properly refused by the court, and left the defendants resting upon the question of a wilful and wrongful obstruction of the plaintiffs’ slip, so that the second and third prayers 'for instruction became immaterial, for if they were guilty of the wrongful act charged, there was no right to demand a re-arrangement of the plaintiffs’ time of running their boat, or of the length of intervals between coming into and going out of the slip. The fact whether the exercise by the defendants of their riparian right and their right of navigation was reasonable towards their neighbors, the plaintiffs, was so clearly dependent on the evidence, and therefore a matter for the jury, and this rea- ■ sonable exercise not being' made a distinct question, it is evident that there is nothing in the case which can make our decision infringe upon the right of navigation in the Delaware, and therefore the apprehended consequence cannot flow from the decision.

Judgment affirmed.


text:
    Jermon et al. versus Lyon et al.

    1. A sale of land subject to debts not of record, by order of the Orphans’ Court, under the Act of 18th April 1853 (Price Act), discharges the lien of a mortgage.
    2. Land subject to a mortgage of §5000, the mortgagor being dead, was sold under such order for $10,000 ; the sale was so returned and confirmed and security given in $21,000, conditioned for the appropriation of the proceeds ; the consideration in the deed was $5500, subject to the mortgage; the deed was acknowledged in open court. The purchaser sold subject to the mortgage. Judgment was recovered after two “ nihils” on scire facias against the mortgagor and under it the land was sold to the owners of the mortgage. Held they took.a good title.
    3. The terre-tenant, having taken the land expressly subject to the mortgage, and the debt being part of the purchase-money, was estopped from denying its existence and that it was a lien.
    4. In an action against husband and wife some of the counts were against her for indebtedness in improving her separate estate and some for the joint indebtedness of both. Judgment was confessed in the action in open court, and under it her land was sold. Held that although the judgment might have been reversed on error, the sheriff’s sale under it was not destroyed.
    5. There was enough from the sale under the mortgage to pay the judgment also; the purchasers under the judgment being strangers to it, would not be affected by this.
    6. It was the duty of the defendant to have moved in the matter; by permitting the sale to be made and the deed to be acknowledged, &c., she' was estopped from questioning the sale.
    7. Patterson v. Robinson, 1 Casey 81; Ramborger v. Ingraham, 2 Wright 146, recognised.
    February 14th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Certificate from Nisi Prius, No. 130, to July Term 1872.
    This was an action of ejectment, brought July 3d 1872 by J. Wagner'Jermon-and Sarah A. Jermon, his wife, in her right, against Edward Lyon, Thomas Lyon and George W. Taylor, for premises at the south-east corner of Broad and Oxford streets, Philadelphia, being forty-eight feet on Broad street, &c.; at the time of bringing this ejectment the premises had been .divided into three lots.
    The title of the property had been in George W. Roberts; on the 13th of April 1861, he executed a mortgage on the property to the Reliance Mutual Insurance Company, to secure the sum of $5000, payable in one year with interest. He died intestate, December 31st 1862, unmarried and without issue, seised of the premises, leaving to survive him as. his heirs at law, Pratt Roberts, his father, Ann W. Roberts, his mother, and Charles W. Roberts, his brother. On the 18th of December 1863, a'petition signed by all these heirs was presented to the Orphans’ Court of Philadelphia, setting out th.e death of the decedent, seised of the real estate, and that the estate “was subject to the lien of debts not of record if any there be;” the prayer was for a decree that the “ petitioners may make a public sale of the premises clear and discharged of all liens in the hands of the purchaser, and that they may give security, as provided by the Act of April 18th 1853.”
    On the same day the prayer was “granted, and the court awarded an order of sale accordingly, agreeably to the provisions of the Act of Assembly in such ease made and provided.”
    On the 15th of January 1864 the petitioners made return that they had sold the premises to John Rice for $10,500; on.the same day the sale was confirmed and Isaac M. Post approved as surety in addition to the names of Pratt Roberts and Charles W.1 Roberts.
    The bond for tjie security was dated January 15th 1864 and was conditioned that Pratt Roberts and Charles W. Roberts should faithfully execute the power committed to them by the Orphans’ Court, &c., in the sale of the .real estate of the decedent, and truly account for and pay over the proceeds of the same according to law and in such manner as the court should direct.
    The deed made in pursuance of the sale was dated January 30th-1864: it was between “ Pratt Roberts and Ann his wife and Charles W. Roberts, heirs and legal representatives of George W. Roberts, deceased, of the one part, and John Rice of the other' part.” It recited the proceedings in the Orphans’ Court, including the sale to Rice for $10,500, and its confirmation, &c., and “ in consideration of the sum of $5500,” conveyed the premises to Rice in the ordinary form, “ under and subject to the payment of a certain mortgage debt or sum of $5000, with interest, made and executed by the said George W. Roberts to the Reliance Mutual Eire Insurance Company, &c., recorded,” &c., concluding with a clause of special warranty from all the grantors. The deed was acknowledged on the 5th of February 1864, before an alderman, with the separate examination of Mrs. Roberts.
    Endorsed on the deed' is the certificate of the clerk of the Orphans’ Court, that on the same day, on the petition of Pratt Roberts and wife and Charles W. Roberts, praying that the sale of the premises therein mentioned and described might be confirmed unto Rice; the “ court approved and confirmed the sale so made as within conveyed, and the security having been duly given and bond filed, &c., it is accordingly ordered, &c., that the said conveyance of the said lot of ground and within particularly described be and remain firm and stable unto the said John Rice, his heirs and assigns for ever; and at an Orphans’ Court held as aforesaid, the 5th day of February 1864, personally came the said Pratt Roberts and Ann his wife and Charles W. Roberts and acknowledged the within indenture to he,” &c. The whole was recorded in the recorder’s office on the same day.
    On the'llth of February 1865, Rice conveyed the premises to Sarah A. Jermon (plaintiff) for the consideration of $8000, “subject to the payment of a certain mortgage debt of $5000.
    The case was tried at Nisi Prius March 6th 1874, before Mr. Justice Williams, when the plaintiff gave the foregoing in evidence and closed.
    The defendants gave evidence as follows:
    On the 2d of February 1867 an action of assumpit was commenced by W. A. Arnold against J. W. Jermon and S. A. Jermon, his wife. The first count of the declaration set out, that Mrs. Jermon was indebted to the plaintiff for goods, &c., and work and labor found, provided and used about the improvement, &c., of real estate, her separate estate, at her special instance and request; that she had assumed to pay it, &c. The second count was that the “ defendants” were indebted to the plaintiff for goods, &c., work and labor found, applied, &c., about real estate, -being her separate estate, at her special instance, &c., and at the special instance, &c., of J. W. Jermon, and that the “ defendants” assumed to pay ; the remaining counts were the common counts averring indebtedness, and assumption by the “ defendantsthe plea was “non assumpsit on the 21st of May 1867 judgment was confessed in open court in favor of the plaintiff for $321.38, with stay of execution for six months. Assignment of the mortgage, dated June 5th 1867, from the Reliance Insurance Company to Edward Lyon, Thomas Lyon and George W. Taylor. To July Term 1867, the assignees of the mortgage issued a scire facias on it against George W. Roberts, the mortgagor, which was returned “ nihil.” An alias scire facias in the same form was issued returnable to the 1st Monday of August 1867, which was also returned “ nihil;” judgment was taken September 2d 1867 and damages assessed at $5115.83. A number of writs of levari facias wrere issued on this judgment, the first to January Term 1868 and sales made under them, in which either the purchasers neglected to comply with their bids or the sales were set aside.
    The 5th pluries levari facias issued September 18th 1869. To this levari the sheriff returned that he had sold to the defendants in this ejectment lot No. 1 for $10,000, and lot No. 2 for $2000, and had taken their receipt as plaintiffs in the execution for $5748.57, and brought the .remainder of the purchase-money into court. The deed to the purchasers was acknowledged December 4th. 1869. On the 13th of December 1869 a pluries vend. ex. was issued on the Arnold judgment, and lot No. 3, being 16 feet on Broad street, was sold to Edward Lyon (defendant) for $2000, and deed acknowledged January 22d 1870.
    The plaintiffs submitted the following points all which were refused:—
    1. The Orphans’ Court sale of January 13th 1864 divested the lien of the mortgage of the Reliance Mutual Insurance Company, dated April 13th 1861, recorded in mortgage book A. C. H., No. 9, page 71, &c., and substituted the money arising from the sale in the place of the land.
    2. After the Orphans’ Court sale, the Reliance Mutual Insurance Company could only look to the fund in the hands of Pratt Roberts, Ann Roberts and Charles W. Roberts, for satisfaction of the debt secured by the mortgage.
    3. The lien of the mortgage having been divested by the Orphans’ .Court sale, if the jury find from the evidence that it was not revived or continued as a lien by any writing signed by the parties, the making of the conveyance subject to its payment, would not reinstate it as a lien upon the premises, and the plaintiff is entitled to recover.
    4. After the lien of the mortgage of the Reliance Mutual Insurance Company had been divested by the Orphans’ Court sale, a new lien could only have been given to the insurance company by the’ creation of a new mortgage, and the plaintiffs are entitled to recover.
    5. The subsequent issuing of scire facias upon the mortgage, and recovery of judgment, were ineffectual to create any lien, and the judgment was void, and no title passed at a sheriff’s sale under the judgment.
    6. The title of a married woman cannot be divested by a judgment and sheriff’s sale, unless the record shows her liability.
    7. The entry of a judgment against a married woman by her confession in an action in which some counts in the narr. show a good cause of action against her and others, show only a cause of action against her husband for the same claim, does not create a presumption that the judgment is valid against her, and the burden of proof is on the purchaser at a sheriff’s sale, under such a judgment to show her liability.
    8. If the jury find from the evidence that the purchaser at sheriff’s sale acquired the title by any trick or fraud, the verdict must be for the plaintiffs.
    9. If the jury find from the evidence that the judgment of Arnold was paid by the sale of premises No. 1, no title passed by the .sale of premises Nos. 2 and 3, and as to these two lots, the verdict must be for the plaintiffs.
    Judge Williams further charged :—

      “ This is an action of ejectment against landlord and tenants. The evidence shows an application by Roberts’ heirs to the Orphans’ Court to sell this property. It was sold to John Rice for $10,500. Ordinarily, this sale would have discharged any mortgage. But before the sale was completed an agreement was made to take $5500 cash and let an - old mortgage for $5000 remain. The Orphans’ Court approved this, and it was done. There was nothing wrong here, and the only persons affected were Roberts’ heirs, Rice and the mortgagee. The heirs did not object, and the' mortgagee did not object, and Rice certainly did not object. Then the mortgagee assigned the mortgage to defendants. They issued a scire facias and obtained judgment. Many applications were, made by these plaintiffs to stay proceedings, and there were many executions. Finally, there was a sheriff’s sale of two lots to the defendant.
    “ The other lot was sold under a judgment obtained for materials furnished to this very property. The judgment was confessed by the plaintiffs’ attorneys. They most probably had authority, and there has been no evidence offered to impeach the judgment. The sale under it is, therefore, good. The plaintiffs have been fighting the title to this property with unusual pertinacity, and they have had unusual opportunities of being heard. But the time has come when we must cease to hear them.
    “ There is no evidence of trick or fraud in acquiring title.
    “No objection was raised that more property was sold than was sufficient to pay debt.”
    He instructed the jury to find for the defendants; they accordingly so found.
    The plaintiffs took a writ of error, and assigned for er-ror the refusal of their points and the charge of the court.

      JD. Q. Harrington and F. 0. Brewster, for plaintiffs in error.—
    Judgment having been entered against the mortgagor on two nihils, without notice to the terre-tenant, she can, in an ejectment against a purchaser at a sheriff’s sale, make any defence which she might have set up on the trial of the scire facias : Mevey’s Appeal, 4 Barr 80; Menges v. Oyster, 4 W. & S. 20. If by any reason the lien had been divested, no title passed at the sheriff’s sale. As the proceedings are in rem, the foundation of the judgment is the alleged lien of the mortgage of which they are attempting to enforce the collection : Wilson v. McCullough, 7 Harris 77. An Orphans’ Court sale is a judicial sale, and divests liens: Moliere v. Noe, 4 Dall. 450; Gilmore v. Commonwealth, 17 S. & R. 276; Presbyterian Corp. v. Wallace, 3 Rawle 109; McLanahan v. Wyant, 1 Penna. R. 96; Bowers v. Oyster, 3 Id. 239; Cadmus v. Jackson, 2 P. F. Smith 295. After the mortgage was paid by the sale, it had performed its office. An attempt to revive is equivalent to the creation of a new mortgage: Kinley v. Hill, 4 W. & S. 426. A mortgage is but a security for the payment of a debt, and when that is paid or extinguished, it can never be resuscitated: Wentz v. Dehaven, 1 S. & R. 317; Anderson v. Neff, 11 Id. 208; Ayres v. Wattson, 7 P. F. Smith 360. The recital in the deed to Mr. Rice had not the effect to revive the lien which had been discharged, and the subsequent sheriff’s sale conveyed no title. In a deed-poll the grantee makes no covenant: Campbell v. Shrum, 3 Watts 60. If by the deed from Roberts to Rice the grantee covenants to pay the debt, no scire°facias would lie on the mortgage, and the remedy would be in covenant on the deed : Walter v. Physick, 5 Barr 193. The words in the habendum making the conveyance subject to the payment of a mortgage debt are void. There is no covenant on part of Mr. Rice to pay the debt: Lancaster Bank v. Myley, 1 Harris 544; Shoenberger v. Hay, 4 Wright 132; Maule v. Weaver, 7 Barr 329 ; Tyler v. Moore, 6 Wright 386; Miners’ Appeal, 11 P. F. Smith 283. The recital of unpaid purchase-money in the deed does not make it a lien on the premises conveyed: Bear v. Whisler, 7 Watts 144; Neas’s Appeal, 7 Casey 293; Hiester v. Green, 12 Wright 96. If the mortgage was discharged by the Orphans’ Court sale, the assignees acquired no title by the sheriff’s sale: Samms v. Alexander, 3 Yeates 268 ; Hoffman v. Strohecker, 7 Watts 88 ; Gibbs v. Neely, Id. 307; Caldwell v. Walters, 6 Harris 85; Fetterman v. Murphy, 4 Watts 424.
    . As to the judgment of Arnold, the judgment against the wife must be founded upon a narr., which discloses her liability only, and not a joint liability with her husband: Park v. Kleeber, 1 Wright 251, 254. A joint promise by the husband and wife is but the promise of the husband: Cummings v. Miller, 3 Grant 146. The question of lien as against Mrs. Jermon must be determined by inspection of the record: Finley’s Appeal, 17 P. F. Smith 453 ; Swayne v. Lyon, Id. 436. A judgment entered upon the bond of a married woman is a nullity, and a sale of her property on such a judgment conveys no title: Keiper v. Helfricker, 6 Wright 325; Steinman v. Ewing, 7 Id. 63 ; Brunner’s Appeal, 11 Id. 67; Caldwell v. Walters, 6 Harris 79.
    When the proceeds of a sale are sufficient to satisfy a writ, its force is spent, and the plaintiff in a judgment can acquire no title to property of a defendant by a sale after his judgment is paid. He is guilty of actual fraud: Gilbert v. Hoffman, 2 Watts 66; McKennan v. Pry, 6 Id. 137.

      A. T. Freedly and L. Q. Cassidy (with whom was W. H. Bawle), for defendants in error.
    — An agreement by the purchaser to take subject to a lien estops himself or his vendees with notice from denying it: Stackpole v. Glassford, 16 S. & R. 163; Zeigler’s Appeal, 11 Casey 173; Crooks v. Douglass, 6 P. F. Smith 51; Ashmead v. McCarthur, 17 P. F. Smith 326 ; Loomis’s Appeal, 10 Harris 318. The conveyance to Mrs. Jermon under and subject to the_ payment of the mortgage, and her acceptance of the deed, her retention of the purchase-money to that amount, &c., made the mortgage debt her own : Campbell v. Shrum, 3 Watts 60; and was binding upon her, although she was a, feme covert, for not even a married woman can retain both the land and the consideration: Patterson v. Robinson, 1 Casey 81; Ramborger v. Ingraham, 2 Wright 147; Glass v. Warwick, 4 Id. 140; Bortz v. Bortz, 12 Id. 382.
    Mrs. Jermon was liable under the contract set forth in the first count, and a judgment thereon would have been valid; for a married woman’s contract for the improvement and repair of her separate estate is binding upon her as being constructively within the exception introduced-by the Act of 1848; Lippincott v. Hopkins, 7 P. F. Smith 328; Lippincott v. Leeds, 27 Id. 420; Evans v. Meylert, 7 Harris 403; McCullough v. Wilson, 9 Id. 436; Patterson v. Robinson, 1 Casey 81; Ramborger v. Ingraham, 2 Wright 147; Brunner’s Appeal, 11 Id. 67; Hartman v. Ogborn, 4 P. F. Smith 120.
    March 6th 1876,
   Judgment was entered in the Supreme Court,

Per Curiam.

Had there been no arrangement by the parties before the acknowledgment of the deed, the Orphans’ Court sale of the mortgaged premises, under the real estate act of 1863, would have discharged the lien of the mortgage. But when the purchaser agreed to take the deed subject to the payment of the mortgage, and that much of the purchase-money was deducted from the sum bid, at which the premises were sold, and this was sanctioned by the court, by permitting the acknowledgment of the deed, reciting the consideration as $6500 and the subjection to the mortgage for the remainder, the purchaser estopped himself from denying the continued existence and lien of the mortgage. When Rice, the purchaser, sold to Mrs. Jermon, he recognised the mortgage and conveyed to her subject to it. She, therefore, is clearly estopped by her deed from denying the encumbrance subject to which she bought. Clearly she had no defence to the mortgage. It constituted a part of her purchase-money, and was binding upon her on the principles of Patterson v. Robinson, 1 Casey 81, and Ramborger v. Ingraham, 2 Wright 146. As to the premises number three, it may be conceded that the judgment against Mrs. Jermon was erroneous and might have been reversed upon a writ of error, but this would not destroy the sheriffs sale made under the judgment while standing in full force and unreversed. This judgment was obtained by W. A. Arnold, with whom Lyons and Taylor had no connection. Conceding that sufficient real estate had been sold to satisfy the judgment, yet no appropriation had been made to it out of the proceeds of sale, and no satisfaction entered. Lyon and Taylor being strangers to the judgment were not responsible for the act of the plaintiff, supposing that he was aware of the fact that the former sales would have reached and satisfied his judgment. It was the duty of Mrs. Jermon to have moved in the matter, if she thought the judgment was in fact satisfied by the former sales. But permitting the sale to be made and the deed acknowledged, and never having taken out a writ of error upon the judgment, it does not lie in her mouth now to deny the validity of the sale.

Judgment affirmed.


author: Mr. Justice Mercur,

text:
    Pratt versus Patterson.
    1. An action was commenced in the District Court; on the trial both parties testified; a verdict was rendered, which was set aside. The plaintiff discontinued the action and commenced another in the Supreme Court .against the defendant for the same cause of action ; the defendant afterwards died, and his executors were substituted. Held, that the plaintiff was not a competent witness, but the notes of his testimony taken on the former trial might be read.
    2. The Act of April 15th 1869 is an enlarging not a restraining statute ; it makes no evidence or witness incompetent that was competent before.
    3. Notes of testimony are substantially a deposition, and evidence competent under the Act of 1869 is admissible as depositions under the Act of March 28th 1814.
    4. Statutes providing for the perpetuation of evidence are in furtherance of justice and a due administration of law, and should receive a liberal construction.
    5. On the trial an agent of a defendant testified that he had received a letter from plaintiff on their business ; that he had searched for it but could not find it; no notice had been given to defendant to produce the letter. Held that a copy was not evidence.
    6. Evans v. Reed, 28 P. F. Smith 415, followed.
    February 15th 1876.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Certificate from Nisi Prius : Of July Term 1870, No. 205.
    This was an action of assumpsit brought July 11th 1870, by Dundas T. Pratt, againt George Patterson. After the case was at issue the death of defendant was suggested, and Lydia Patterson and Frederick Patterson, his executors, were substituted.
    The action was for the recovery of commissions for the sale of real estate by the plaintiff for the decedent.
    The case was tried March 12th 1874, before Mr. Justice Williams at Nisi Pi'ius.
    A suit had been previously brought between the same parties for the same cause of action in the District Court of Philadelphia. On the trial of that suit both parties testified; a verdict was rendered on that trial which was set aside; the suit was then discontinued and this action instituted.

      On the trial of this action the plaintiff was offered as a witness. He was objected to by the defendants as incompetent, was rejected by t'he court and a bill of exceptions sealed.
    Plaintiff then offered in evidence the notes of his testimony taken on that trial; this offer was objected to by the defendants, rejected by the court and a bill of exceptions sealed.
    W. W. Harding testified, that wishing to purchase the property, he ascertained from plaintiff that he could effect a sale; plaintiff told him the price was $140,000 and that it was useless to try to get it for less; he offered the plaintiff $135,000 for it; he said if witness would give $140,000 he could get it; witness agreed to give that sum, the name of one his clerks to he used in the agreement, which was drawn for $140,000 and signed by the clerk. Witness did not wish to be known as the purchaser as he was desirous of purchasing an adjoining property ; he was able and prepared to carry out the contract for $140,000.
    Another witness testified that the plaintiff urged the decedent to take $135,000 ; that he refused and plaintiff then produced the agreement to sell for $140,000 ; decedent declined to sign the agreement, but said when the parties were ready to pay the money he would bring the deeds and papers ; decedent said that plaintiff was to receive $1400 commission. Henry C. Townsend, Esq., had been the counsel of the decedent, but witness did not know whether he had been consulted in this matter; decedent made no objection to the price $140,000, nor to the amount to be secured on the property; nothing was said about Harding being the purchaser.
    II. C. Townsend, Esq., testified that decedent had consulted him frequently about this property; he had prepared a paper containing brief terms of agreement for sale of the property; he had advised decedent to impose those terms on- all purchasers in any contract he might make. Witness had received a letter from Mr. Miller, counsel for the plaintiff, which he could not find, of which he thought a paper shown him was a copy; he had received also a letter to him from plaintiff, of which one shown him was a copy; he had searched for it but could not find it; he said also that a letter shown him was one written by himself to Mr. Miller; he could not recollect whether it had been shown to decedent. Mr. Miller’s letter was to him as counsel for decedent for whom he was then acting; witness told decedent the substance of his reply which decedent thought was right.
    The plaintiff offered in evidence the copy of his letter to Mr. ■Townsend; it was objected to by defendants because no notice had been given to produce the original, rejected by the court and a bill of exceptions sealed.
    The plaintiff offered to show by — Alexander that $500 were tendered to decedent, and what Patterson said about this transaction when he made the tender, and that Mr. Patterson treated the witness roughly and turned him away, saying that Mr. Pratt had lied to him.
    The defendants objected to the offer, it was rejected by the court •a bill of exceptions sealed.
    The “ brief of terms of agreement” and the agreement offered to decedent were' given in evidence; they contain nothing important to the case. There was- other oral evidence also.
    The court directed a nonsuit and afterwards refused a motion to to take it off.
    The plaintiff took a writ of error and assigned for error,
    1. Refusing to permit the plaintiff to testify.
    2. Excluding the notes of the testimony of the plaintiff in a former action between the same parties in the lifetime of the said George Patterson, which suit was about the same subject-matter, and in which said Patterson was also examined.
    3. Refusing in evidence a copy of a letter from plaintiff toH. C. Townsend, who said he had searched for the original and could not find it, for the reason that no notice to produce the original of said letter had been given to the defendants.
    4. Overruling the offer to show by Alexander that $500 were tendered to decedent, and what Patterson-said about the transaction when he made the tender, and that Patterson treated witness roughly, and turned away, saying that Pratt had lied to him.
    5. 6. Entering judgment of nonsuit against the plaintiff and refusing to take it off.

      I. HazleTmrst and JE. S. Miller, for plaintiff in error,
    as to second assignment, cited Evans v. Reed, 28 P. F. Smith 415; 1 Greenl. Evid., sec. 168; Act of March 28th 1814, sec. 1; 6 Sm. Laws 208 ; 1 Br. Purd. 625, pl. 24.

      T. Hart, Jr., for defendants in error. —
    A deposition of a witness disinterested when taken cannot be read if he afterwards becomes interested : Chess v. Chess, 17 S. & R. 409 ; Tilly’s Case, Ld. Raymond 1009. The plaintiff was not offered to prove any fact not in evidence; ordering a nonsuit therefore worked no injury and there should be no reversal even if his rejection was improper : Wright v. Wood, 11 Harris 120; Winsor v. Maddock, 14 P. F. Smith 231. As to the rejection of the copy of plaintiff’s letter he cited Milliken v. Barr, 7 Barr 23 ; Baldney v. Ritchie, 1 Starkie 338 ; Burton v. Payne, 2 Carr. & Payne 520; Taplin v. Atty, 3 Bingh. 164.
    May 8th 1876.
   Mr. Justice Mercur,

delivered the opinion of the court,

The plaintiff brought this suit to recover commissions as a real estate broker. In a former suit between him and the testator, about the same subject-matter each party had testified and the testimony had been reduced to writing. The verdict in that case was set aside and the suit discontinued. This suit was afterwards brought between the same parties. Before the trial the defendant died and his executors were substituted. On the trial the notes of the plaintiff’s testimony taken in the former suit were offered in evidence and rejected by the court. This is assigned for error.

The competency of this kind of evidence under similar circumstances, received a careful consideration in Evans’s Adm’x v. Reed, 28 P. F. Smith 415. That case differed in this. There the notes of testimony of the deceased party were held admissible in the same suit in which they were taken; here the testimony is that of a surviving party, offered in a subsequent suit involving the same subject-matter against the executors of the deceased party. There it was said “if the deposition of a party be duly and regularly taken so as to be admissible in evidence in a pending case it is very clear that it would be admissible in a subsequent suit, between the administrators of the parties involving the same subject-matter.” Here it is a subsequent suit, tried after the death of one of the parties, and involving the same subject-matter. The very case assumed there, substantially exists here. In each case the testimony was not only admissible when taken, but had actually been given in evidence. It must not be overlooked that the Act of 15th April 1869 is an enlarging, not-a restraining act. It makes no witness nor evidence incompetent that was competent before its passage. Sheetz v. Norris, antea, p. 100.

The first section of the Act of 28th March 1814, Purd. Dig. 625, pl. 24, declares: “ Any deposition taken or to be taken in any cause, which by the rules of law may be read in evidence on the trial of the cause in which it is or may be taken, shall be allowed tobe read in evidence in any subsequent cause wherein the same matter shall be in dispute between the said parties or persons, their heirs, executors, administrators or assigns.” The third section of the Act of 15th April 1869 authorizes the testimony of all witnesses made competent by that act to be taken “ by deposition or commission issued as the case may require.” In Evans’s Adm’x v. Reed, supra, the notes of testimony are considered substantially as a deposition duly taken. Hence it was there held, evidence competent under the Act of 1869, when taken, is admissible under the Act of 1814.

This evidence was taken on due notice, with ample opportunity for cross-examination. It was not testimony that could have been fabricated after the death of the party whose interest might be injuriously affected thereby. When taken the parties stood on an equal footing. Each had the right to perpetuate his own testimony. Each availed himself of that right.

All statutes -which provide for the perpetuation of evidence are in furtherance of justice and a due administration of the law. They should receive a liberal construction. This is not the case of the deposition of a person taken when he was not interested, but becomes so before it is offered in evidence. Here he was no more interested when his testimony was offered,than when it was first taken. His interest had remained unchanged. The second assignment is therefore sustained.

The offer to put the plaintiff on the stand to testify in regard to matters which occurred in the lifetime of the defendant, rests on a different basis, and there was no error in rejecting the witness.

The third assignment has no merit. If Townsend, as agent for the defendant, received and held the letter, notice to produce the original was necessary before a copy was admissible in evidence. If he was not such agent, the defendant could not be affected by the letter, inasmuch as, he had no knowledge of its contents.

The time- when the tender was made, ,and what the defendant said material to the issue are not stated in the offer covered by the fourth assignment. It should be shown affirmatively, that the plaintiff was injured by the rejection of the evidence. We are unable to see any such effect.

We would not disturb the judgment of nonsuit on the evidence before the court; but by reason of the rejection of the notes of testimony the judgment must be reversed.

Judgment reversed and a venire facias de novo awarded.


text:
    Paschall Street.
    1. The 76th section of Act of June 13th 1866, requiring a petition for road viewers in Philadelphia to be presented thirty days before the term, is repealed by sect. 1 of Act of March 16th 1866.
    2. Six viewers were appointed to assess damages; five only were qualified; they viewed and made a report. Held that the report was valid.
    3. The Act of 1836 directs that viewers shall be sworn, &c., “ to perform their duties impartially and to the best of their judgment;” being sworn, &c., “to perform their duties in the premises according to law,” is sufficient.
    4. A report of viewers was set aside and new viewers were appointed on motion, on the original petition. Held to be propel-.
    5. Cambria Street, 25 P. F. Smith 357; Charleston Road, 2 Grant 467; Little Britain Road, 3 Casey 69 ; New Hanover Road, 6 Harris 220, considered.
    February 15th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ.
    Certiorari to the Court of Quarter Sessions of Philadelphia: Of July Term 1874, No. 39.
    .The proceedings in this case were commenced June 5th 1871, by the petition of John Yewdall and Anne J. Yewdall, representing that they were owners of property on Pasehall street, &c., in the Twenty-fourth ward of Philadelphia, which street had been laid out on the plans of the city and, by virtue of Acts of Assembly and city ordinances had been ordered to be 'opened, and that by the opening private property of the petitioners would be taken ; the prayer was for the appointment of persons to view the premises and assess the damages sustained by the petitioners by reason of opening the street, &c.
    Six viewers were on the same day appointed and endorsed on the petition.
    On the 16th of March 1872 the viewers reported, assessing damages to certain of the property owners, amongst- whom were Mary A. Pearson and others, heirs of Robert Chapman, deceased, on the street to be opened. Exceptions were filed to the report; it was set aside.
    On the 80th of May 1872, on motion, six new viewers were appointed without presenting a new petition, and were endorsed on the old petition, and this petition endorsed as filed the same day. Five of the jurors reported that they met on the 12th of June 1872 and “were all duly sworn or affirmed to perform their duties in the premises according to lawthe sixth viewer was absent; an affidavit was made that he had been served with notice, but had afterwards been taken sick, and was sick at the time of the view. They further reported that they had viewed the premises, and held numerous meetings, heard evidence and arguments of counsel, and assessed damages to several of the property owners, amongst whom were the heirs of Robert Chapman — the damages awarded being less than those reported by the former viewers. They reported that the damages to others were compensated by the advantages derived from the opening of the street; that there had been no advantages accrued to property in the vicinity of the street which would justify requiring them to pay the damages, and that the damages should be paid by the city.
    Exceptions were filed to this report by the heirs of Chapman and others.
    On the 12th of November 1873 the exceptions were dismissed and the report confirmed.
    Mary A. Pearson and the other heirs of Chapman took out this certiorari, and assigned for error that the court below erred in dismissing the exceptions to the report of the viewers and confirming their report.
    The assignments of error presented the following points:—
    1. That the petition was not presented thirty days before the commencement of the succeeding term of the court, according to the 76th section of the Act of June 13th 1836.
    2, That but five viewers were qualified or acted.

      3. That the viewers were not sworn, as provided by the Act of Assembly.
    4. That the Act of Assembly authorizing the assessment of damages is unconstitutional as providing for a jury of six instead of twelve.
    5. That the jurors, having been appointed upon the petition of the Yewdalls, had no jurisdiction to assess damages for the appellants.

      J. B. Rhoads and F. 0. Brewster, for certiorari.
    — Petitions for viewers for laying out or widening streets, &c., in Philadelphia, or for assessing damages, must be presented thirty days before the next term, &c.: Act June 13th 1836, sect. 76, Pamph. L. 566; 2 Br. Purd. 1285, pl. 110. No petition here was presented, but the viewers were appointed on motion on an old petition. Even if that were regarded as the presentation of a new petition it was re-filed and the jury appointed the same day: Byberry Road, 6 Phila. R. 143. There were but five viewers sworn or viewing, although six were appointed ; all the viewers appointed must be sworn; those sworn did not take the proper oath: Act of 1836, supra, sect. 53, 2 Br. Purd. 1283, pl. 87 ; Cambria Street, 25 P. F. Smith 357. As to the constitutional question, they cited Vanhorne v. Dorrance, 2 Dallas 308.

      W. W. Wiltbanlc (with whom was O. BJ. T. Collis, City Solicitor), contra.
    — The requirement of the Act of 13th June 1836, sect. 76, was annulled by the Act of 16th March 1866, sect. 1, Pamph. L. 2242, Br. Purd. 1286, pl. 111. The court had authority to appoint a new jury on the original petition : Charleston Road, 2 Grant 467. It need not appear from the report that all the jurors were present, and the presumption is in favor of the regularity of the proceedings : Springbrook Road, 14 P. F. Smith 451; State Road in Lehigh and Bucks Counties, 10 Id. 330 ; Road in Little Britain, 3 Casey 69; New Hanover Road, 6 Harris 220; Case of Greenleaf Court, 4 Wharton 514. The jury were properly sworn or affirmed ; the report shows that they were qualified, according to law, to perform their duties : Road in Lower Macungie Township, 2 Casey 221; Road from Fitzwater Street, 4 S. & R. 106 ; Delaware Avenue, 17 P. F. Smith 309.
    March 13th 1876.
   Mr. Justice Gordon

delivered the opinion of the court,

This was a proceeding in the Quarter Sessions of Philadelphia county, on the petition of John and A. J. Yewdall, to ascertain and assess the damages that might result to the property of the petitioners in consequence of the opening of Paschall street, in its extension from Fifty-second to Haverford street, in the Twenty-fourth, ward of the city of Philadelphia. Some five exceptions were taken to the action of the court in the premises, and are here now submitted to us for examination. We will consider them seriatim.

1. That the requirement of the 76th section of the Act of June 13th 1836, requiring the petition to be presented thirty days before the commencement of the term of court at which the viewers are appointed, wTas not observed. The answer to this is, that the act referred to, which was a special act for Philadelphia, was repealed by that of 16th March 1866, sec. 1, which applied the provisions of the General Road Law to the city. The two acts are evidently inconsistent with each other, and it is apparent that the latter was designed to abrogate and supply the former.

2. That it does not appear that more than five of the viewers were qualified or acted. But as the terms of the statute are complied with, where five of the six are qualified and act, this exception cannot be sustained. If the act itself be not sufficient to convey its own meaning, it is helped out by the cases of the Road in Little Britain, 3 Casey 69, and the New Hanover Road, 6 Harris 220. We have been cited to the case of Cambria street, 25 P. F. Smith 357, as sustaining this exception. But a very cursory examination would have informed the counsel that that case was not in point, for there the sixth juror was sworn after he had made the view; and as he had acted and signed the report, we held that this defect could not be cured by treating the report as that of the five competent viewers.

3. That thé jury was not properly sworn.

As we find nothing on the record beyond the statement that all the jurors present “were duly sworn or affirmed to perform their duties in the premises according to law,” this exception must fall. As we must presume all things to have been rightly done, unless the contrary appear, and as the words, “according to law,” necessarily mean according to the form prescribed by law, we must assume that the statute, in this particular, was complied with. In In re Cambria Street the form of the oath was specifically set forth as follows: “ The other jurors were then each severally sworn or affirmed to the faithful discharge of their duties, the petition having first been read to them;” hence we were obliged to say that a form of oath different from the one prescribed by the Act of Assembly had been adopted. Had the words, “ according to law,” followed the above the statement, the case would have been different, and the decision upon it would also necessarily have been different.

4. That the act is unconstitutional, in that it only provides for six instead of twelve jurors.

As this act has been treated by both bar and bench, for the last forty years, as constitutional, we may be excused if we pass this exception without further consideration.

5. That the jury appointed had no jurisdiction to assess the damages sustained by the appellant, and this, because the assessment was made upon a petition by John and A. J. Yewdall. This exception seems to me to be substantial. The words of the act are, “ any of the owners may petition,” &c. “And it shall be the duty of the jury to ascertain and report to the court, first, what .damages the parties claiming the same are entitled to.” I cannot, for my part, see how, under this act, one may have the right to claim damages for his neighbor; or how, on such claim, the city can be compelled to pay; for it does not follow he will claim such damages at all; and if he chooses not to interpose such claim, who may do it for him ? This view of the case, however, is of no value at present, for, if it be correct, then the appellant has no standing to review these proceedings, because they do not affect her; she is but a stranger to them.

There was another point made in the discussion of this case Avhich we may notice and dispose of as though regularly presented by exception ; that is, that the second set of viewers were appointed under the old petition, after the report on the first view had been set aside. But there is no reason Avhy this should not be done, for it Avould be an idle form first to Avithdraw and then re-present the petition, which would obAÚate the technical difficulty, if any there were; - and besides this, a practice of this kind is approved in the case of the Charleston Road, 2 Grant 476.

Proceedings affirmed.