text:
    Nixon’s Appeal.
    1. A trust resulting from payment of purchase-money may he established by parol, but the evidence must be clear and unequivocal that the money was paid at the time. A subsequent payment will not answer.
    2. If one setting up a resulting trust paid no money, he cannot show by parol that the purchase was made for his benefit.
    3. A resulting trust will not arise from advance of money to the purchaser after the purchase is complete.1
    4. Such payment would not, by relation, attach a trust to the original purchase. '
    5. A resulting trust is raised only from fraud in obtaining title or from payment of the purchase-money when the title is acquired.
    November 15th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Orphans’ Court of Washington county: No. 232, to October and November Term 1869.
    At August Term 1868, of the Orphans’ Court of Washington county, Sidney Winnett and Frances Nixon, sisters of John J. Nixon, deceased, presented several petitions for an inquest to value and divide the real estate of the decedent; the petitions set forth the seisin of the decedent, his death intestate, unmarried and without issue, leaving a number of brothers and sisters his heirs. An inquest was awarded, which, September 19th 1868, made an inquisition dividing the intestate’s real estate into two parts. On the 17th of December 1868, before the return of the inquisition, Frances Nixon presented a petition setting forth the foregoing facts, and objecting to the confirmation of the inquisition, because the land of which the partition was made was held in common by the decedent and the petitioner, although the deed for it was in the name of the decedent alone; that her petition for partition setting forth that the decedent was sole owner, was drawn and signed by her in mistake of its representations and of her rights; she having signed the petition as it came from her attorney, whom she had not seen, and who had prepared it under instructions from her agent; — that she had supposed the petition set forth the interest of the decedent as an undivided moiety and that she did not know that it was otherwise until the inquest was held; that she requested the inquest to set apart her share in the land, but that they refused to do so because her right was not set out in the writ. She averred that she could prove that the title was held by the decedent in trust for her and himself. She prayed the court “ to set the said proceedings on said writ of partition aside, and permit the record to be amended in such a manner as to disclose her ownership of the undivided half of said land; .and if her title to said land should be disputed, then that your Honors direct an issue to try her title, and that the proceedings in partition be stayed until said issue is determined ; and that your honorable court will grant her other and further relief as equity and justice require.”
    The court granted a rule on the heirs of the decedent to show cause why the petition should not be granted.
    Sarah Winnett filed an answer, averring that the decedent held the title of the land for his own use, and denying that it was encumbered with a trust in favor of the petitioner.
    Testimony was taken under the rule. The property in dispute originally belonged to John Nixon, the father of the parties and of the decedent, and was sold on the 25th of September 1847, by his administrator, Jonathan West, by order of the Orphans’ Court, for the payment of debts: the land was bought by the decedent, and conveyed to him. On the distribution of the father’s estate, the share of each heir was $135.20.
    Frances alleged that her share was applied as part of the purchase-money, and that she had a resulting trust in the land in dispute.

      There was evidence for Frances, by Asa S. Hanely, a tax collector, that the decedent requested him “to call at his house so that Frances might see the amount of tax, as that she was as much concerned in it as he was, as she was to pay the one-half of it, and that she owned as much of the land as he did, as they had bought out the other heirs in partnership, and that she had done as much toward paying for this land as he had.” West, the administrator of John Nixon, Sr., testified that he heard a conversation between the decedent and Frances, on the day of the sale of the land as the father’s estate: “John had his doubts about buying the property. He hadn’t his mind made up whether to buy the property or not. Fanny said if he would buy the farm, she would ■help him pay for it. In reference to her share of the father’s estate, she left it in this farm.” There was evidence by a number of witnesses that the decedent had frequently declared that he held the land in partnership with Frances, and had in other ways acknowledged that she had an interest in the land.
    The court (Acheson, P. J.) held that the evidence did not establish a resulting trust, and dismissed the petition.
    Frances Nixon appealed, and assigned the dismissal of her petition for error.

      W. Montgomery, for appellant. —
    Frances having paid in part for the land a trust resulted in her favor: Beck v. Uhrick, 1 Harris 638; Reed’s Appeal, Id. 476; Harrold v. Lane, 8 P. F. Smith 268; Lynch v. Cox, 11 Harris 268. This is so, although both the legal owner and the cestui que trust contribute and in unequal proportions : Edwards v. Edwards, 3 Wright 384; Collyer on Part. § 135; Bottsford v. Burr, 2 Johns. C. C. 405; Stewart v. Brown, 2 S. & R. 461; Wallace v. Duffield, Id. 521; Kisler v. Kisler, 2 Watts 323; Shoemaker v. Smith, 11 Humph. 81; Purdy v. Purdy, 3 Maryl. Ch. 547; Buch v. Swazey, 35 Maine 41; Jackson v. Moore, 6 Cowen 706; Morey v. Herrick, 6 Harris 129; Bacon v. Virnig, 30 Maine 121; Sayre v. Townsend, 15 N. H. 647; Shoemaker v. Smith, 11 Humph. 81.

      D. S. Wilson, for appellee. —
    If there was a resulting trust, it is barred by the Act of April 22d 1856, § 6, Pamph. L. 522, Purd. 654, pl. 13; Miller v. Franciscus, 4 Wright 835; Clark v. Trindle, 2 P. F. Smith 492; Warfield v. Fox, 3 Id. 382; Kenyon v. Stewart, 8 Wright 180. Trust in land must be in writing: Act of 1856, supra; § 4, Pamph. L. 533, Purd. 497, pi. 3; Barnet v. Dougherty, 8 Casey 372; 3 Sugden on Vendors, ch. 20, § 1, pl. 17; Hill on Trustees, 56; Randall v. Morgan, 12 Vesey 74; Forster v. Hale, 3 Id. 707; Steere v. Steere, 5 Johns. Ch. 12; Bottsford v. Burr, supra. A resulting trust must be contemporaneous with the deed: Rogers v. Murray, 3 Paige 398; Bottsford v. Burr, Barnett v. Dougherty, supra. The proof to sustain a resulting trust must be clear: Bennett v. Fulmer, 13 Wright 163; Hill on Trustees 60; Cowden v. Oyster, 14 Wright 372.
   The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

A trust which arises or results by implication or construction of law from payment of the purchase-money of land may unquestionably be established by parol evidence; but then that evidence must be clear and unequivocal in showing that the money was paid at the time. A subsequent payment, however clearly proved, will not answer the requirements of the law. This is well expressed by Chancellor Kent in Botsford v. Barr, 2 Johns. Ch. Rep. 408: “ If A. purchases an estate with his own money, and takes the deed in the name of B., a trust results to A., because he paid the money. The whole foundation of the trust is the payment of the money, and that must be clearly proved. If, therefore, the party who sets up a resulting trust made no payment, he cannot be permitted to show, by parol proof, that the purchase was made for his benefit or on his account. *

* * * Nor would a subsequent advance of money to the purchaser, after the purchase is complete and ended, alter the case. It might be evidence of a new loan, or be the ground of some new agreement, but it would not attach by relation a trust to the original purchase: for the trust arises out of the circumstance that the money of the real and not of the nominal purchaser formed at the time the consideration of that purchase, and became converted into land.” The American cases which confirm this doctrine may be found collected in Mr. Bispham’s edition of Hill on Trustees 97, note. “A resulting trust,” says Mr. Justice Strong, in Barnet v. Dougherty, 8 Casey 372, “ is raised only from fraud in obtaining the title or from payment of the purchase-money, when the title is acquired. Payment of the purchase-money, subsequently, is not sufficient to raise a legal implication of a trust, as all the authorities show.”

John J. Nixon bought the land in question at a public sale by the administrator of his father’s estate under the order of the Orphans’ Court for the payment of debts. Part of the price was paid in cash, and the balance in the individual obligations of the purchaser. There is no evidence that Frances Nixon contributed any money to the cash payment. It may be, however, that when an original verbal agreement between two persons to make a joint purchase is clearly proved, although no part of the hand-money was actually paid at the time by him whose name is not in the articles or deed, yet the subsequent payment of his share in fulfilment of the bargain will relate back to the original agreement and attach to the land as a resulting trust. It is not necessary to determine that in this case. There was undoubtedly evidence of repeated admissions by John Nixon that he held the land in partnership with the appellant, and particularly to Asa S. Hanly, “ that she owned as much of the land as he did, as they had bought out the other heirs in partnership, and that she had done as much toward paying for this land as he had.” Unfortunately for the appellant, however, there is no evidence whatever of any such agreement originally, that the purchase at the administrator’s sale should be for their joint use or benefit. On the contrary, the only evidence of what occurred at the time is inconsistent with any such agreement. Jonathan West, the administrator, testified that he heard a conversation between John and Frances Nixon on the day of the sale. “ John had his doubts about buying this property. He hadn’t his mind made up whether to buy or not. Fanny said, if he would buy the farm, she would help him pay for it. In reference to her share of her father’s estate, she left it in this farm.” This certainly contradicts any theory of a joint purchase having been in contemplation. Agreeing to help a person buy a farm is something entirely different from agreeing to join him in the purchase. Had such agreement been reduced to writing, it cannot be pretended that it would have given her any interest in the land. So her leaving her share of her father’s estate in this farm had no significancy whatever regarded as evidence of any such agreement. Had there been a joint purchase, her share would have been a credit on the purchase-money — would have been paid and extinguished, and therefore in no sense left in the land. The evident meaning was that, as an accommodation to John, she would not insist upon the payment of her share of the purchase-money immediately, but hold it as a claim upon the land.

We concur, therefore, with the learned judge below in the opinion that the evidence in the case was not sufficient to raise a resulting trust, which renders unnecessary the consideration of whether the limitation provided by the sixth section of the Act of April 22d 1866, Pamph. L. 533, barred the right of the appellant.

Decree affirmed and appeal dismissed at the costs of the appellant.


source: Caselaw Access Project

author: Read, J. —

license: Public Domain

text:
    Ammon’s Appeal: Campbell’s Estate.
    1. A legacy was bequeathed to Campbell by his mother; he brought suit against her estate for a claim against her — subsequently he assigned his legacy, it being all his estate, for the benefit of his wife, there were then some debts against him; afterwards judgment in the suit was recovered against him for costs. The administrator, in his administration account, which was confirmed, took credit for the costs paid by him in the suit. Held, that assignment was void as against the costs and the other debts, and that they should be paid from the legacy.
    2. A conveyance which denudes a husband of all or the greater part of his property is more than a reasonable provision for his wife ; a husband’s probable necessities as well as his debts are to be considered.
    3. Under a decree avoiding a voluntary conveyance for a wife, there is no distinction between creditors at the time of the conveyance, and those becoming so afterwards; the former have no priority over the latter.
    November 15th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Orphans’ Court of Beaver county: No. 152, to October and November Term 1868.
    The proceedings in this ease were upon the distribution of the estate of Rebecca Campbell, deceased, in the hands of Hugh B. Anderson, administrator d. b. n. c. t. a.

    The decedent died in October 1862, and, by her will, directed her estate to be divided amongst her six children, Alfred and Charles, two of them, each to receive $100 more than the others. On the 18th of February 1860, C. H. Hays obtained a judgment against Alfred Campbell, on which an attachment execution was issued, Mrs. Campbell’s administrator being garnishee; the judgment against the garnishee was $11.90 and costs $2.93. On the 1st of December 1862 Alfred gave his note to the administrator for a vendue bill amounting to $4.73, payable in nine months: on the 17th of March 1863 Alfred commenced an action of assumpsit against his mother’s administrator, in which there was a judgment for defendant for costs $239.75, which the administrator paid out of the estate, and $42.06 docket costs. The administrator issued an attachment execution for the costs, and laid the attachments on the legacy in his own hands.
    By deed dated 24th of June 1863, and executed in the next October or November, Alfred assigned to James M. Phillis, “in trust for the sole use and benefit of my wife, Elvira Campbell, her heirs and assigns, all and every legacy, or legacies, left to me by the same Rebecca Campbell,” &c.; the assignment was put into the possession of the wife and remained there.
    The administrator’s account was confirmed at November Term 1866; it showed abalance of $2324.04 in his hands, and E. B. Daugherty, Esq., was appointed auditor to make distribution.

      The principal question before the auditor was as to the validity of the assignment of the legacy to Alfred’s wife.
    The auditor found that the above debts were due by Alfred, and reported that there was evidence before him that the wife had received $30 to $35 from her father’s estate, which she had given to her husband; that she had sold a horse for $75, which she gave to him; that she had given him $15, and also that she held against him a note for $100, the consideration of which did not appear. After referring to the sources from which the other money came, the auditor, in a well-considered report (which the reporter regrets that he cannot give in full), proceeded:—
    “ It is clear that the only separate estate which Elvira Campbell had was the $30 to $35 referred to as coming from her father’s estate; and since, in any event, she will receive, under the assignment, a much larger sum than that, which was her own separate property or money, it is a matter of no importance whether that amount was given to her husband or not.
    “ For the purposes, then, of this distribution, it is manifest that the assignment was not founded upon sufficient consideration, but may at least, outside the $30 to $35, be considered as voluntary.

      “ In this view, can it then be sustained ? The rules governing post-nuptial settlements would seem to be:—
    “ 1. That when fairly made by a husband not indebted at the time, the settlement will be sustained.
    “ 2. When the husband is actually indebted, he must retain such amount of his estate as would be sufficient to pay his debts, and answer the reasonable probabilities of the future.
    “ 3. The settlement must not be for more than a reasonable provision for the wife, and the reasonableness thereof is determined by the whole amount of his estate.
    “ 4. In any event, to be good against future creditors, he must retain, at the time of the settlement, sufficient estate to answer the probabilities of the future.
    “ 5. That where a husband gives to his wife all his available means, retaining little or nothing to answer his own, or the demands of future creditors, the provision is unreasonable and void as against such creditors.

      “ 6. When a settlement fairly made, and being in conformity with the foregoing rules, is attacked by creditors whose debts accrued after its making, on the ground of fraud, such fraud must be proved.
    “ 7. Where the debts are contracted after a proper settlement is made, in conformity to above rules, such creditors attacking the same, must show that the intent to defraud future creditors existed at time of making.” * *
    He referred to the testimony on the question of Alfred’s pecuniary condition and found: “ That at the time of the assignment by Campbell to his wife, and ever since, he had not, and has not since had, any property or estate out of which then existing or since contracted debts could be made; that when he. executed said paper, it was not a reasonable provision for his wife, as compared with what he retained, but was in effect, so far as creditors then existing or prospective were concerned, a transfer of his entire available means, and indeed the only fund out of which collection would be possible. The auditor, therefore, is of opinion, that so far as the claims above stated are affected by the assignment, it is void, for the reasons stated.” * * *
    He then reported that the claims referred to should be allowed out of Alfred’s share of his mother’s estate.
    “ The remaining portion of Alfred Campbell’s legacy is awarded to James M. Phillis, trustee, for the use of Elvira Campbell, under the assignment.
    “ In arriving at the conclusion above stated, to wit: That the assignment is invalid as against the claims stated, the auditor does not go into the intent of Campbell at the time it was made, but puts it on the ground, that in view of his circumstances at the time, he had nothing available left; that the Hays judgment was due and payable; that the suit upon which the costs subsequently accrued was then commenced; in view, then, of these, as well as the general facts in the case, as said before, the deduction is made that as a matter of law the paper is void as against the claims referred to.” * *
    The auditor found that Alfred’s share was $478.95
    Prom which he deducted:—
    “ Defendant’s bill of costs in No. 10, June T. 1868,.......$239.75
    Record bill, to be paid to prothonotary, . 42.06
    Costs of attachment, No. 28, March T. 1866, 5.01
    C. H. Hays’ judgment v. Adm’r., Garnishee, 17.16 Note to administrator, . . . . 4.73
    - 308.71
    And awarded the balance, $170.24”
    to J. M. Phillis, trustee of Elvira Campbell.
    Exceptions to the report of the auditor were filed by Phillis, the trustee:—
    1. In holding that the assignment was void as against the costs in the case of Alfred Campbell against the administrator of Rebecca'Campbell.
    2 and 3. In not awarding the whole amount of the legacy without any deduction, except the debts due C. H. Hays and II. B. Anderson, administrator, originally for $4.73.
    Judge Acheson, in delivering the opinion of the court on the exceptions, said: * *

      “ It has been claimed that these costs must be regarded as a subsisting debt prior to the date of the transfer, the suit having been brought, and that the pendency of the litigation is evidence bearing upon the honesty of the assignment.
    - “ We cannot regard these costs as a subsisting liability from the commencement of the action, nor can we look upon the legal controversy as sufficient of itself to warrant the conclusion that a fraud was intended. It is true, that litigation is a somewhat ‘ hazardous business,’ but the inference, that because Alfred Campbell was attempting to collect a claim against the estate, he anticipated defeat, and was placing his property beyond reach for costs, strikes us as unauthorized. Fraud must be proved, and cannot be presumed.” * * *
    “ Notwithstanding the commendable care taken by the auditor, in the examination of the law and facts surrounding this transfer, we are constrained to determine that,, as to subsequent creditors, actual fraud must be proved, and that the evidence falls short of establishing it. If actual fraud was charged, it should have been tried in the attachment proceeding, wherein the administrator attached the money in controversy in his own hands. But instead of this, abandoning his attachment he has settled his administration account, and the question is raised on the distribution of the estate.”
    The court corrected the finding of the auditor by allowing from Alfred’s share the vendue note, $4.73, and the judgment in favtfr of C. H. Hays, $17.16, and awarding the balance of the legacy, $417.12, to J. M. Phillis, trustee, &c.
    The other distributees appealed and assigned the decree of the court for error.

      S. B. Wilson (with whom was JT. Rice), for appellants. —
    A husband cannot make a voluntary settlement on his wife which is not in proportion to his circumstances and not hurtful to his creditors: Coates v. Gerlach, 8 Wright 43; Wilson v. Howser, 2 Jones 109; Larkin v. McMullin, 13 Wright 29; Story’s Eq. J., § 1, 374; Woolston’s Appeal, 1 P. F. Smith 452. The estate of the decedent was not concluded in a question of distribution by the credit for the costs taken in the administration account: Bull’s Appeal, 12 Harris 288.

      B. B. Chamberlin, for appellee. —
    The confirmation of the administration account was conclusive as to the claim of the estate for costs: Bull’s Appeal, supra; Wallace v. Keyser, 1 P. F. Smith 497; McClintock’s Appeal, 5 Casey 361; Thompson’s Appeal, 6 Wright 357, show that the relation of the parties was fixed at the death of the testator. The other debts were small debts, not of the character from which legal fraud is inferred: Thompson v.
      Dougherty, 12 S. & R. 456; Sexton v. Wheaton, 8 Wheaton 229; Chambers v. Spencer, 5 Watts 408. Since the Married Woman’s Act of 1848, an obligation to a wife for money does not imply fraud: Williams’ Appeal, 11 Wright 310. The interest is the controlling element: Larkin v. McMullin, 13 Wright 34; Mullen v. Wilson, 8 Id. 417; Reid v. Gray, 1 Id. 510; Snyder v. Christ, 3 Id. 506.
   The opinion of the court was delivered, January 3d 1870, by

Read, J. —

In this case the auditor appointed by the Orphans’ Court made a very able report, which we have examined with great care and attention. Alfred Campbell, one of the legatees of Rebecca Campbell the decedent, made a voluntary assignment of his legacy to a trustee for the use of his wife, Elvira Campbell. This instrument was dated 24th June 1863, but was not executed until several months afterwards, and was kept at Campbell’s house, and was never in the possession of the trustee. Campbell was indebted upon a note for $4.75, dated December 1st 1862, payable nine months after date, for goods bought at the sale of personal property of decedents. Charles H. Hays had a judgment before Squire Gormly for $9,75, with interest from 18th February 1860, upon which an execution attachment was served on 4th November 1863, on the administrator as garnishee of Alfred Campbell. On the 17th March 1863, Alfred Campbell commenced suit against the administrator to recover an alleged claim coming to him from the estate, which he failed to sustain; and on the 16th March 1865, there was a verdict for defendant, on which judgment was entered on the 25th November 1865. The record costs were $42.06, and the defendant’s bill $239.75, paid out of the estate by the administrator. Upon this judgment, an attachment execution was issued on December 16th 1865, and attached all moneys, &c., in the hands of the administrator, and summoned him as garnishee.

It was also in evidence that the constable who served the execution on Hays’ judgment in 1863, could find no property out of which he could make the money, and it was returned “no goods,” and that he had another execution in favor of W. B. McGaffick, during the same year, and that was also returned “no goods.”

Campbell appears to have been a thriftless man, without property of any kind, except the legacy which he assigned to his wife. This is only a general outline which is filled up by the auditor. He held the assignment void as against these debts, and directed them to be paid, and the balance to be paid to the trustee of the wife. The court below reversed this decision as regards the record, costs and defendant’s bill, and decreed that the same should not be paid out of Alfred Campbell’s legacy, and this is assigned for error.

In Coates v. Gerlach, 8 Wright 43, Judge Strong said (p. 46), “ upon this branch of the case it is conclusive against the wife, that the deed was for all the husband’s real estate, and indeed for all his property, so far as appears, except some farming stock, subsequently sold by him for $500. A conveyance that denudes a husband of all, or the greater part, of his property, is much more than a reasonable provision for a wife; for in considering what is and what is not a reasonable provision, the circumstances of the husband are to be regarded — his probable necessities as well as his debts. Equity will not assist a wife to impoverish her husband — accordingly, it has always been held that a conveyance to a wife of all or the greater part of a husband’s estate, is an unreasonable provision, which, if voluntary, a court of equity will not sustain. See 1 Fonblanque’s Equity, Book 1, Ch. 4, § 12, note (a), where the author remarks that “ if a conveyance be of the whole or the greater part of a grantor’s property, such conveyance or gift would be fraudulent; for no man can voluntarily divest himself of all or the most of what he has without being aware that future creditors will probably suffer by it: 2 Story’s Eq. § 1374, where the principle is clearly stated, with all the authorities.”

The same doctrine is to be found substantially in Larkin v. McMullin, 13 Wright 29, and in Mullen v. Wilson, 8 Id. 413. (See Ware v. Gardner, 38 L. J. N. S. Eq. 348, V. C. James and cases cited; Smith’s Manual of Equity, p. 88, 89.) Peachey, in his, treatise on Marriage Settlements, p. 197, says “ It has, however, never been disputed but that a.subsequent creditor would participate in the benefit of a decree instituted by a prior creditor, and would have the same equity for having the property applied.. Again, no distinction has been drawn in such cases between the-different classes of creditors, that is, between those whose debts existed at the time the deed was executed, and those who became creditors subsequently, or that any priority can be given to those who were creditors at the date of the instrument over the subsequent creditors; all would, in fact, participate pro rata.”

These authorities support the views taken by the auditor, which reach the real justice of the case, for it would be clearly unjust to suffer him, under cover of his wife, to evade the payment of the costs of an unsuccessful suit against his mother’s estate, and to saddle them on his unoffending brothers and sisters.

Decree reversed, and the report of the auditor confirmed, the costs to be paid out of the legacy to-Alfred Campbell.

Record remitted to Orphans’ Court to carry out this-decree.


author: Sharswood, J. —

text:
    The Pennsylvania and Ohio Canal Co. versus Graham.
    1. A canal company by its charter was required to build and keep in repair bridges where the canal should pass a road; as a traveller was passing over one of these bridges, it gave way and he was precipitated, with his wagon, &c., into the canal. Held, that an action lay against the company for the injury.
    2. The requirement was for the benefit of all persons travelling upon the highways.
    3. The charter is a law imposing on the company the burden of performing a duty to the public.
    4. If the duty to the public be not performed, the company is responsible to those who thereby suffer special injury.
    5. If a party has suffered special damage, whether direct or consequential from a public nuisance beyond that which affects the public, an action will lie against the author of the nuisance.
    6. Remedies provided by charter against a canal company, for injuries arising from the construction of their works, do not exclude the common-law remedies for injuries from an abuse of privileges or neglect of duties.
    7. A corporation bound in consideration of the franchise to keep a road or bridge in repair, is liable for injury to a person from want of repair, whether the defect be patent or latent, unless he be in default or the defect was from inevitable accident, tempest or lightning, or the wrongful act of a third person of which they had no notice or knowledge, and this although ordinary care was used in the erection or repair, and the work was done by competent-workmen under contract.
    8. In estimating damages for injuries to the person, the jury may consider the pain suffered, bodily and mental, the expenses and loss of property they occasion, and loss of time.
    November 15th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lawrence county: No. 7, to October and November Term 1869.
    This was an action on the case, brought September 25th 1866, by William Graham against the Pennsylvania and Ohio Canal Company.
    The declaration averred the existence of a highway in New Castle, Lawrence county, which was intersected by the defendants’ canal under the laws of the Commonwealth, and that there was a bridge over the canal where it intersected the highway which the defendants were bound by law to keep in repair: that the bridge was out of repair, and the defendants had neglected to repair it; that the plaintiff, having lawful occasion to pass on the bridge with two horses and wagon laden with grain and merchandise, and believing the bridge to he safe and in good repair, went upon it with his horses, wagon and its load, hut in consequence of the bad condition of the bridge it gave way, and precipitated himself, his horses, wagon, &c., into the canal, and that he sustained great bodily injury, and his horses, wagon and merchandise also were greatly injured.

      The defendants were incorporated April 14th 1827 (Pamph. L. 371.) By the act of incorporation they were authorized to receive tolls for transportation on their canal; they were required “ to build and keep in good repair suitable and convenient bridges over said canal, in all such places where said canal shall pass any existing state or county road which at the time shall be opened and used as such, and where the commissioners appointed to estimate damages as aforesaid shall deem such bridge necessary and expedient,” &c.
    The plaintiff gave evidence that he was crossing the bridge with a wagon drawn by two horses and laden with fifty bushels of wheat, when the bridge gave way, and he, with his horses, wagon, &c., fell into the canal, and that, besides the injury to his horses, wagon and load, he sustained very serious bodily injury. Amongst other witnesses, the plaintiff examined Dr. Kirker and Dr. Woodbridge, who having testified as to the condition of the plaintiff and the character of his injuries, the plaintiff proposed to prove by each “ the nature, extent and necessary consequences of the injury for which suit is brought, for the purpose of enabling the jury to make a just estimate of the damages to which the plaintiff is entitled, if any.” The offers were objected to by the defendants, allowed by the court, and several bills of exceptions sealed.
    There was evidence given by both parties of the condition of' the bridge. The defendants gave evidence that the bridge had been built by contract; that the contractor was an experienced bridge-builder; that the materials were good, and that the bridge had been well built; they gave evidence also of the weight of the plaintiff’s horses, wagon and load.
    The points submitted by the plaintiff, with their answers, are as follows:—
    1. “ The building and keeping in good repair a suitable and convenient bridge at the place where the canal crossed the public road, was a condition of the grant of corporate franchise; defendants having accepted the grant, became absolutely bound to the perfect performance of said condition, and consequently responsible for any injury resulting from defects therein, whether known or unknown by them.”
    Answer : “We affirm this point, and we add thereto an explanation in reference to the duty imposed by the act of incorporation, and in doing so quote from a decision of our Supreme Court, defining what is negligence, and where it may arise, that the jury may understand and apply the principles of law to the facts of-the case. ‘ That what constitutes negligence in a particular case is generally a question for the jury and not for the court, is undoubtedly true; because negligence is a want of ordinary care. To determine whether there has been any negligence involves two inquiries. First. — What would be ordinary care under the circumstances ? And, second, whether the conduct of the person charged with negligence came up to the standard ? In most cases the standard is variable and must be found by the jury. But when the standard is fixed, that is, when the measure of duty is defined by law, entire omission to perform it is negligence. In .such case the jury have but one of these inquiries to make. They have to find whether he upon whom the duty rests has performed it. If he has not, the law fixes the character of his failure and pronounces it negligence.’
    “ Here the charter defines the duty to be to build and keep in good repair suitable and convenient bridges over the company’s canal, in all such places where said canal shall pass over any existing state or county road, which at the time shall be opened and used as such. And if the jury find from the evidence that at the time of this alleged injury to the plaintiff the bridge was not in good repair, but in consequence thereof the injury happened without any fault upon the part of the plaintiff at the time, he is entitled to recover.”
    2. “But if the court should be of opinion that defendants are only responsible for negligence, yet defendants are liable for the least possible degree of it. That the slightest omission of any measure or means to avoid danger against, which human foresight or prudence could guard, will make them liable for any accident which may be the consequence of it.”
    Answer: “We answer that we think our answer to the first covers this point, but we will fully answer it by affirming it as containing correct principles of the law.”
    The defendant’s points, with their answers, are as follows:—
    1. “ The plaintiff must show that the road at the place where this bridge is located was opened and used as a state and county road at the time the canal was constructed, and that such bridge was deemed necessary and expedient by the commissioners appointed to estimate the damages on said canal.”
    Answer: “We answer this point in the affirmative. And upon the question of the proof upon the subject, the law will authorize the jury to presume that the defendants erected the bridge in accordance with the terms of the act of incorporation, and that it was deemed expedient by those authorized to determine where, that the same should so be erected at the place where the proof shows it to have been built.”
    8. “ The township in which this bridge is located is primarily liable for injuries resulting from negligence or want of care in construction of or keeping said bridge in repair, and that no recovery can be had against the company by the plaintiff in this action.”
    Answer: “We answer this in the negative. And unless the evidence satisfies the jury that the company had abandoned the canal and had no further claim to it, or had lost its franchises by forfeiture, the company is primarily liable for the injury to the plaintiff.”
    3. “ The act incorporating the defendants, in making it their duty to erect bridges and to keep them in repair, only imposed upon them the same duty and care as is by law imposed on supervisors in the care and repair of roads and bridges.”
    Answer: “ We answer this in the negative, and say to the jury the duty imposed is well defined in the 10th section of the act of incorporation, which is to erect and keep in repair the bridge over the public highway, suitable and convenient for the public to travel over.”
    4. “ That the basis of any recovery in this action is the negligence of defendants, its officers of servants, and injury resulting from it. And that no recovery can be had unless such negligence is shown.”
    Answer: “ We say the basis of this action as claimed by plaintiff is the alleged failure of the defendant to have kept the bridge in good repair. And we instruct the jury that it must appear that at the time the bridge was in good repair, in order to relieve the defendant from liability for the injury sustained in the manner it was received.”
    5. “ Such negligence must be affirmatively proved like any' other material fact, and is not to be presumed from the fact that the bridge broke down under a heavy load.”
    Answer : “We answer in the negative, with the explanation we made in our answer to the plaintiff’s first point on the subject of negligence. And unless the cause of the breaking down of the bridge be the weight of plaintiff’s horses, wagon and merchandise, or is accounted for in some other way, the presumption would be the bridge was defective, and the law would presume negligence in the company in not keeping it in good repair.”
    6. “ The degree of care which was incumbent on the defendants to exercise was but ordinary care, such as an ordinarily careful and prudent man would exercise under similar circumstances. And if defendants had exercised such ordinary care and caution, they are not liable for any injury resulting to plaintiff from the falling of said bridge or any defect therein.”
    Answer: “We answer in the negative.”
    7. “If the jury find that this bridge was not built by the defendants, but was built by contractors for the defendants, and who built the same by the job, having the control and selection of the men and material employed in its construction, and that defendants did not have such control or selection, then defendants is not liable for any negligence of said contractors or their employees, or for any defect in the construction of said bridge, unless guilty of negligence in not repairing the bridge afterward.”
    Answer: “ The charter of incorporation upon its acceptance required the building and repairing, by the canal company, of the bridge, and it is responsible for the manner in which it was constructed, and for its maintenance by good repair; and therefore we negative this point.”
    8. “Defendants would not be guilty of negligence in not repairing said bridge, after built, unless the defect was known to them or was of such a nature, or under such circumstances as that a man of ordinary care and prudence ought to have known or suspected its existence.”
    Answer: “We cannot affirm this point, for reasons assigned in our answer to the sixth point.”
    9. “ Defendants are not liable for any defect in said bridge, either in its original construction or for not repairing it, unless defect was known to them, or was of such a nature, or under such circumstances, as that a man of ordinary care and prudence ought to have known of its existence.”
    Answer: “ We cannot affirm this point for reasons assigned in our answer to the sixth point.”
    10. “ The company is only required to make repairs when, and such repairs as, the township supervisors give it notice of and require it to make.”
    Answer: “ We answer this in the negative, and say to the jury that no notice is necessary to be given to the defendants, when the bridge needs repair, from the supervisors of the township. The defendants being compelled to repair, must do so without waiting for notice from any stranger to the company.”
    The verdict was for the plaintiff for $8000.
    The defendants removed the case to the Supreme Court. Of their assigments of errors twelve related to the answers of the court to the points: the thirteenth to ruling as to evidence.

      B. B. MaOomb and F. Hutchins, for plaintiffs in error. —
    The obligation of the company was to the Commonwealth, the money, if any, was public and the remedy could not be private: 3 Black. Com. 219; Broom on Common Law 97. The accident was..unavoidable, there was therefore no liability: Brown v. Mallett, 5 C. B. 599. The duty of repair was on the township: 3 Bacon’s Abr. 498, 500; 3 Burns Just. “Highways,” Acts June 13 1836, sect. 6; 31 Pamph. L. 556, 560, April 12 1855, sect. 1; Pamph. L. 220; Purd. 875, 876, 879, pl. 41, 47, 79. The township would have its remedy against the company: 1 Redfield on R. R. 538 et seq.; Painter v. Pittsburg, 10 Wright 213. The declaration should have charged negligence : 1 Hilliard on Torts 109. The requisition of the charter to repair was a limitation of the franchise, not a rule of liability: Monongahela Bridge v. Kirk, 10 Wright 112. Negligence is necessary to create liability : Dunlap v. Knapp, 14 Ohio S. Rep. 64; Oakland R. R. v. Fielding, 12 Wright 320; Angell on Highways, sect. 272; Lancaster Can. Co. v. Parnaby, 11 A. & E. 243; Orcutt v. Kittery Bridge, 53 Maine 500; Baxter v. Winooski Turnpike, 22 Vermont 114; Matthews v. Same, 24 Id. 480. The contractor to build the bridge alone was liable: 1 Parsons on Contr. 86-92; 2 Hilliard on Torts 446-460; Clark v. Try, 8 Ohio S. Rep. 358.

      L. Taylor (with whom were B. B. J2. T. Kortz), for defendant in error. —
    The company took their privileges with the burdens : Penna. R. R. v. Com’th, 3 Grant 131. Whether the neglect was wilful or inadvertent is unimportant: Erie City v. Schwingle, 10 Harris 384; Pittsburgh v. Grier, Id. 64; Dean v. New Milford, 5 W. & S. 545. The company are liable although the defect was latent: Yale v. Hampdon & B. Turnp., 18 Pickering 357. The happening of the injury raises the presumption of want of care: Laing v. Colder, 8 Barr 482; N. Jersey R. R. v. Kennard, 9 Harris 204; Railroad Co. v. Aspell, 11 Id. 149; Sullivan v. Philadelphia & Reading R. R. Co., 6 Casey 239; Tennery v. Pippinger, 1 Phila. Rep. 543; 2 Pars. on Con. 228, note.
   The opinion of the court was delivered, January 3d 1870, by

Sharswood, J. —

The first twelve assignments of error all depend upon one question, whether the defendants below were responsible in damages to the plaintiff for the injury which he sustained in consequence of the admitted insufficiency of the bridge over their canal, without some evidence of actual or wilful negligence on their part.

It has been argued that the defendants are not liable to the plaintiff at all, because they owed him no duty. Their charter, by the terms of which they were “to build and keep in good repair suitable and convenient bridges over the canal,” it is contended, was a contract with the state, who, alone, can take advantage of its violation. There was no privity, therefore, in the plaintiff. But even regarding it in that light, for whose use and benefit did the Commonwealth exact this engagement from the corporation, as one of the terms and conditions upon which the franchise was granted ? This particular clause was evidently for the benefit of all persons travelling upon the public highways. If A. contracts with B. to do a certain thing for the benefit of C., and does it so badly that C. is injured by his misfeasance, C. could not perhaps sue directly on the contract, but non constat that he could not maintain an action on the case, on the principle that it was a breach of duty to him, though springing from a contract with another. If, as the argument seems to admit, the Commonwealth, could sue for the use of the plaintiff, there is no reason why he may not maintain an action in his own name.

But it is not necessary to rely on this line of reasoning. The charter is, indeed, a contract; but it is also a law imposing upon the defendants, as a corporation, the burden of performing a certain duty to the public. If that duty to the public has not been performed, they become thereby responsible to all persons who may suffer any special injury in consequence of it. Upon the same principle, which has been settled law from the Year-Books downward, if a party has sustained any special damage from a public nuisance beyond that which affects the public at large, whether it be direct or consequential, an action will lie against the author of the nuisance, for redress. If the defendants, although under the authority of their charter, built a bridge over their canal, which either originally was rotten and unsafe, or became so subsequently, it was a public nuisance in the highway, and the plaintiff, having suffered a direct, special injury, was entitled to recover of them the damages: Wilkes v. Hungerford Market Company, 2 Bingh. N. C. 281; Hughes v. Heiser, 1 Binn. 463; Pittsburgh v. Scott, 1 Barr 309; Commissioners v. Wood, 10 Id. 93; Baxter v. Winooski Turnpike Company, 22 Verm. 122.

In Manley v. St. Helen’s Canal and Railway Company, 2 Hurls. & Norm. 840, the defendants had, by Act of Parliament, the right to construct a canal and take tolls thereon; and had built the same across an ancient highway, having made a swivel bridge across the canal for the passage of the highway. A boatman having opened the swivel bridge to allow his boat to pass through in the night time, a person walking along the road fell into the canal and was drowned. It was held that the defendants, having a beneficial interest in the tolls, were liable to an action, the same as any owner of private property would be, for a nuisance arising therefrom. . “It has been urged,” said Pollock, C. B., “ that what was done by this Canal Company was done by them under the authority of an Act of Parliament, passed many years ago, and with the same responsibility as attaches to the trustees of a highway, or other persons, acting in the performance of functions intrusted to them by statute. I do not think that argument can prevail. The owners of this canal were to be looked on as a trading company, who, though the legislature permits them to do various acts described in the statute, are to be considered as persons doing them for their own private advantage, and are, therefore, personally responsible if mischief ensues from their not doing all they ought, or doing, in an improper manner, what they are allowed to do.” In The Cumberland Valley Railroad Company v. Hughes, 1 Jones 140, in the case of a railway company, it was held to be their duty to keep the road in sufficient repair. It is a condition attendant upon a grant of the privilege to construct a public road or highway for profit, which from its very nature, enures to the benefit of all who may have occasion to use the thoroughfare. In The Schuylkill Navigation Company v. McDonough, 9 Casey 73, it was decided that the remedies against a canal company, provided by their act of incorporation, for injuries arising from the construction of the works, do not exclude the common-law remedies for injuries arising from an abuse of their privileges, or for the neglect of their duties, and that they are, therefore, liable for injuries sustained by a riparian owner in consequence of an overflow of water, caused by the pool of their dam being filled up by dirt, without regard to the question by whose act such filling up was occasioned. In Pittsburg City v. Grier, 10 Harris 54, it was held that a city, being in possession of a public wharf within its limits, exercising exclusive supervision and control over it, and receiving tolls for its use, is bound to keep it in proper condition and is liable for special injury sustained by an individual in consequence of its neglect to keep the wharf in order. So in Erie City v. Schwingle, 10 Harris 384, the doctrine was laid down expressly that a corporation, which is bound by its charter to keep the streets in repair, is liable for an injury occasioned by its neglect to do so, and it is not material whether the neglect was wilful or otherwise. “Except,” says Black, C. J., “ in cases where the suit is against a public officer in his individual character and not against the corporation which he represents, as in Bartlett v. Crozier, 15 Johns. 250, it makes no difference whether the neglect is wilful or otherwise.” In like manner in Yale v. The Hampden and Berkshire Turnpike Company, 18 Pick. 357, where a statute provided that a turnpike corporation “ shall be liable to pay all damages which may happen to any person from whom toll is demandable, for any damage sustained by a traveller in consequence of a defect in the road,” the Supreme Court of Massachusetts was of opinion, and so ruled, that by this act it was intended to provide that whenever the traveller himself is not chargeable with negligence or rashness, but when from an unforeseen cause, the road is actually defective and in want of repair, and an accident occurs without the default of either party, the company should be held liable. It is founded on the consideration that the toll is an adequate compensation for the risk assumed, and that by throwing the risk upon those who have the best means of taking precautions against it, the public will have the greatest security against actual damage and loss.

From these cases it may be deduced that, where a corporation, in consideration of the franchise granted to it, is bound by its charter to keep a road or bridge in repair, it is liable for any injury to a person, arising from want of repair, whether the defect be patent or latent, unless he be in default, or unless the defect arose from inevitable accident, tempest or lightning, or the wrongful act of some third person, of which they had no notice or knowledge. It matters not that ordinary care was used in the erection or repair of it, and that' such work was done under contract by competent workmen. The principle of Painter v. The Mayor of Pittsburg, 10 Wright 213, has no application. That was an action for an injury sustained by the plaintiff, from the negligence of the contractors of the defendants, while engaged in the actual construction of a sewer. Had the plaintiff, in this case, fallen into the canal in consequence of the negligence of the contractors employed by the defendants, while actually employed either in the construction or repair of this bridge, the case presented would have been entirely different.

It is supposed that Oakland Railway Company v. Fielding, 12 Wright 320, is inconsistent with this view. But it is to be remarked that the injury arose, in that case, from a hole in the road made by third persons. “ If, then,” said the learned judge below, “ the defendants had notice of the hole — if they knew that it rendered the street unfit and dangerous for public travel, and if they knowingly suffered it to remain in that condition without an effort to repair it, they were guilty of negligence.” It is evident, then, that the case was rested upon an entirely distinct and independent ground, which does not touch the principle established in the other cases cited. It may be safely admitted that if a third person had wantonly or maliciously cut away part of the timbers of this bridge, in consequence of which it had fallen, the defendants would not be liable, unless notice or knowledge of the defect and neglect to repair it were brought home to them.

It is proper to notice the case of Monongahela Bridge Company v. Kirk, 10 Wright 112, which has been much relied on as showing that a clause in the charter of a bridge company that the bridge should not be erected “ in such a manner as to injure, stop or interrupt the navigation of the river by boats, rafts or other vessels,” is a limitation of the franchise only, and not a rule of liability to injured navigators. Although this is said in the opinion, it must be considered in its application to that particular case, and not as the statement of a general principle. The injury there arose from the erection of piers, which the company were authorized by their charter to build, and for consequential damages for an act within the authority conferred upon them, they wTere not responsible, as wras held in The Monongahela Navigation Co. v. Coon, 6 Barr 382, and many other cases. “ Surely,” says Read, J., “ it cannot be maintained that the proviso in the company’s charter is a declaration that they shall pay damages to any one injured. It is clear, therefore, that the defendants are not liable in this action unless the bridge be an unauthorized erection, and consequently a nuisance. That it is not has been sufficiently shown.”

On the whole, then, we are of the opinion that the answers of the learned judge to the several points which form the subjects of the first twelve specifications of error were correct.

It remains to consider the 13th assignment, that the court erred in receiving the testimony of Drs. Kirker and Woodbridge relating to the pain and suffering of the plaintiff from the injuries received by his fall. Damages, which necessarily result from the act complained of, are properly termed general damages, and may be shown under the common allegation, ad damnum. Injuries to the person consist in the pain suffered, bodily and mental, and in the expenses and loss of, property they occasion. In estimating damages, the jury may consider not only the direct expenses incurred by the plaintiff, but the loss of his time, the bodily suffering endured, and any incurable hurt inflicted, for these may be classed among necessary results: Laing v. Colder, 8 Barr 479; Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 339. There was no error, therefore, in the admission of this evidence.

Judgment affirmed.


author: Thompson, C. J. —

text:
    Kelly versus Creen.
    ]. In a sheriff’s sale book were these memoranda: “26th April, property sold to David Kelly for §630, with the understanding if the money is not paid on or before the 8th of May, the property shall be sold again.” “ 8th of May, money not being paid, I have this day sold the property to John Mitcheltree for §600.” The sheriff’s deed recited the writs of execution and the purchase at an adjourned sale May 8th, by Mitcheltree. Held, that the sale to Mitcheltree was not invalidated by these entries.
    2. D. Kelly, who had made the first bid and refused to comply, could not object to the sale.
    3. If the sale book were a record, the whole record taken together showed a sale to Mitcheltree.
    4. The memoranda had no characteristic of a record, and Mitcheltree was not affected by it.
    5. A sheriff’s docket is kept to furnish means of proof of things transacted in the sheriff’s office, and possibly for supplying contents of lost papers, but is not esteemed a record.
    6. Kelly v. Green, 3 P. F. Smith 302, approved.
    November 16th 1869.
    Before Thompson, C. J., Read, Agnew and Sharswood, JJ. Williams, J., absent.
    Error to the Court of Common Pleas of Mercer county: of October and November Term 1869, No. 231.
    In the court below this was an action of ejectment commenced December 7th 1867, by John Kelly against Richard Creen, for 116 acres of land. There had been a former ejectment between the same parties for this land in which judgment was rendered for the defendant Creen, which judgment was affirmed by the Supreme Court; the case is reported in 3 P. E. Smith 302.

      The plaintiff owned the land on the 27th of December 1840, when a judgment was recovered against him by John Mitcheltree, a fieri facias issued and the land condemned. The writ of venditioni exponas could not be found, but a sheriff’s deed to Mitcheltree acknowledged in open court, recited the fieri facias, the condemnation of the land and the venditioni tested December 27th 1845; also “ whereas, the sheriff, having given due and legal notice of the time and place of sale of the said land, and after adjournment, on Thursday, the 8th day of May 1845, exposed the same to sale, by public vendue or out-cry, and sold the same to John Mitcheltree, for the sum of $600.” * * * On the trial these facts with others were given in evidence by the plaintiff. He also gave in evidence the sheriff’s “ Sale Book,” containing a printed notice of the property of Kelly (the plaintiff) to be sold April 26th 1845.
    On the book were these entries:—
    “ 26th April, property sold to David Kelly for $630, with the understanding if the money is not paid on or before the 8th of May, the property shall be sold again.” — “ 8th of May, money not being paid, I have this day sold the property to John Mitchel-tree for $600.”
    The sheriff’s docket contained only the statement of the writ ■but no entry of the property or proceedings of the sale. There was other evidence bearing on the questions considered in the former ejectment. Besides answering the points submitted by the plaintiff, the court (McGroffin, P. J. of 17th District) charged:—
    “ The acknowledgment of the deed by the sheriff in open court covers all irregularities in the proceeding to sell, and the Supreme Court having decided that the sale made on the 8th of May 1845, by the sheriff to Dr. Mitcheltree, although made more than six days after the return-day of the writ on which the sale was made, did not, for that cause, invalidate the sale; we say to the jury if they believe the evidence we received of the fact discovered from the entry of the sale book of the sheriff as proved by Mr. McDermitt, it was but an offer to sell the land in dispute upon condition that the money for the price agreed upon, $630, should be paid on the 8th of May following, and if not paid as agreed upon, the sheriff had the power to put the property up for sale on that day, and the acknowledgment of the deed would confer the title for the same to Dr. Mitcheltree as the highest and best bidder, and invest him with the title of the defendant in the judgment in the land at the time of the entry thereof.”
    The verdict was for the defendant.
    The plaintiff removed the case to the Supreme Court and amongst other errors assigned the charge of the court for error.

      Foster $ McDermitt, for plaintiff in error. —
    When the land was struck down to David Kelly as appears by the sale-book, the right of the purchaser attached: Gibson v. Winslow, 2 Wright 54. The sheriff’s authority was exhausted and he could not sell without a new writ. The presumption of adjournment of the sale, Kelly v. Creen, supra, may be rebutted by proof. The sheriff had no authority for a second sale: Shields v. Miltenberger, 2 Harris 78. The sheriff’s sale-book is part of the record: Jewell v. Commonwealth, 10 Harris 94.

      W. Stewart and Griffith <$• Mason, for defendant in error,
    referred to Kelly v. Creen, 3 P. F. Smith 302.
   The opinion of the court was delivered, January 3d 1870, by

Thompson, C. J. —

When this case was here before, as it will be seen it was, by reference to 3 P. F. Smith 302, the sheriff’s sale to Mitcheltree, under whom the defendant claims title, was held good against the objection that the sale was on a plu. venditioni exponas after its return day. The sale was under the Act of 1836, which it was then shown could be legally after the return day of the venditioni exponas, and before the Act of April 1845 had taken effect. Other objections to the sheriff’s deed were made and examined at the time, and were set aside on solid grounds, as the opinion of Strong, J., abundantly shows.

Now a new objection to the validity of the sheriff’s sale to Mitcheltree, is made, namely, that a book in the sheriff’s office at that time, now lost, it is proved showed that the land in controversy had been up for sale on the 26th of April 1845, and was bid off to David Kelly, one of the defendants in the execution, at the sum of $630, “with the understanding,” says the minute, “if the money is not paid before the 8th of May, the property shall be sold again.” There was an adjournment of the sale, of course, to that day, in order to execute the arrangement. Across the memorandum, in red ink, says the witness, was the following entry: “ 8th of May, money not being paid, I have this day sold the property to John Mitcheltree for $600and so it was returned, as the deed shows. David Kelly, who had made the previous bid, and failed to comply, made, and could have made no objection to the property being again put up and sold. Nor did the defendants in the execution, or anybody else, and the deed was acknowledged to Mitcheltree, and the title passed to him according to our former decision. Even if the minute book referred to, did possess the force of a record, the whole record must be taken together, and that shows no sale to Kelly. It shows a legal reason why there was none, and why the property was put up and sold to Mitcheltree. Kelly’s bid was entertained and was to become good on compliance by payment of the money; it failed, and of course went for nothing. This the record shows, and it does not contradict the return of a sale to Mitcheltree, even if it were possible so to do by the memorandum, which the witness testifies was not even entered on the sheriff’s book, or docket proper. Mitcheltree was not affected by anything in this memorandum. It had no characteristics of a record of which he was bound to take notice. Nor do we see any grounds for holding the sheriff’s docket to be a record. It has never been so held, although directed to be kept as furnishing the means of proof of things transacted in the sheriff’s office, and possibly of supplying contents of lost papers. But we need not enlarge on this point in the view we have taken of the memorandum spoken of. In view of what was determined in the former case, and what we have already said in this, we think further notice of the errors assigned is not necessary. Seeing nothing to correct in the record, the judgment of the court below is affirmed.


author: Williams, J. —

text:
    Weltner’s Appeal.
    _ 1. Weltner, as guardian, leased land of his ward and was discharged from his trust, the tenant being in arrear. Brownfield was appointed guardian and leased to the same tenant. Weltner obtained judgment against the tenant ; the tenant occupied under Brownfield for two years, ana entered on a third year when Brownfield was removed and Iiagan appointed guardian. Weltner, during the third year, issued execution against the tenant on his judgment, the proceeds of sale were brought into court for distribution. On appeal the Supreme Court awarded to Hagan the rent for the pi'oportion of the third year, and the balance of the proceeds to Weltner for rent during his trust, in preference to Brownfield.

      %. The ward as owner of the demised premises was in equity entitled to one year’s rent out of the proceeds of the sheriff’s sale.
    3. Weltner’s judgment without satisfaction, did not take away the ward’s right of distress.
    4. The fund being less than one year’s rent, the ward was entitled to the whole of it.
    5. The landlord is not confined in his claim to the rent for the last year or that immediately preceding the sale, so that no more than one year be claimed.
    6. If there be no equities to interfere, the law would apply the proceeds of sale to the rent first due.
    7. The judgment for the rent to Weltner as guardian, gave the ward no additional right or security; the tenant having no property on which it could be a lien.
    8. Weltner having obtained judgment against the tenant on which the fund had been realized, had a legal right superior to Brownfield’s.
    November 16th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Payette county, in the distribution of the proceeds of the sheriff’s sale of the property of William E. Core: No. 229, to October and November Term 1869.
    Under a fi. fa. issued by John Weltner, guardian, &c., of M. M. B. Core (now Hutchinson) against W. F. Core, there was in court for distribution $423.60 of the proceeds of the defendant’s personal property. GK W. K. Minor, Esq., was appointed auditor to make distribution of the fund. From his report and the evidence it appeared that Weltner had been guardian for Miss Core, and had leased her farm for a number of years to William F. Core, who had fallen into arrears for the rent. In March 1865 Weltner settled his account as guardian, and at his own request was discharged from his trust. Basil Brownfield was, on the 6th of June 1865, appointed guardian of the minor. On the 6th of September 1866 Core gave his judgment note to Weltner for $992.83, the amount of his arrearages of rent which had accrued during Weltner’s guardianship. Judgment on the note was entered January 7th 1867 — of this judgment $500 was assigned to Brownfield as guardian. On the 16th of June 1868, upon cause shown, the court removed Brownfield from his trust, and on the 17th appointed Robert Hagan in his place, and ordered Brownfield to deliver to him all the property, securities, &c., of the ward in his hands. A fi. fa. was issued by Weltner on his judgment, he intending to collect only that part of it not assigned to Brownfield. Under this execution, a levy was made September 1st 1868 and the fund in court was raised. At a hearing before the auditor Brownfield claimed the fund as landlord for rent due for the ward’s farm for the years 1867 and 1868. On a subsequent hearing a notice, dated Japuary 23d 1869, purporting to have been given by Hagan to the sheriff was produced, notifying the sheriff “ that Wm. F. Core at the time of the levy and sale was occupying as a tenant the lands of said M. M. B. Hutchinson for the rent of the year 1867, in the sum of $450, and for the year 1868 in the sum of $500, due and unpaid. I, as her guardian, claim the proceeds arising from said sale, to be applied to the payment of rent due said ward, or me, as guardian of said ward.” Hagan informed the auditor that he never gave or authorized any one to give the notice, that he had not signed it nor did he claim the fund.
    Core was in arrears to Brownfield for rent of the year ending April 1st 1867. He continued to occupy the land under a parol lease until the levy; the rent for the year from April 1st' 1867 being $450, and for the succeeding year $500.
    The auditor concluded his report, saying:—
    “ The question is then presented, who is entitled to the fund, the execution-creditor or the late guardian, Basil Brownfield? The evidence of Wm. F. Core, the lessee, shows there was nothing specified in the contract or lease, hut so much a year rent. At the time the levy and sale were made, Core doubtless owed Brownfield. The rent of 1867 was at least due, and perhaps not paid. That of 1868 was not due. If the right of distress upon the property of Core existed at all in Brownfield, it could only have been exercised for the rent due him on the year 1867. But did said right exist, and could he have a distress at all at that time ? The right to distrain property on the demised premises, subject to distress, belongs to the landlord, and if he neglects to exercise his right until after he has parted with his title to, and interest in, the demised premises, and thereby ceased to be landlord, he cannot exercise it afterwards. In this case he had so neglected and had so ceased to be landlord — his right, title or interest had passed from him at the time of the levy and sale of the goods and property of the defendant.
    “The auditor gives the fund to John Weltner, the execution-creditor.”
    He reported that the costs should be paid out of the fund.
    The report, on exceptions by both parties, was recommitted to the auditor “ to inquire whether Hagan gave notice that he claimed the rent out of the proceeds of sale, and if so, whether he after-wards withdrew it, and when it was given and withdrawn, and whether he persists in the notice or has abandoned it,” &c. On the hearing under this order, Hagan was examined and testified, that he never gave notice to the sheriff that he claimed the fund, nor authorized any one to do so, that Brownfield asked him to sign a paper similar to that before the auditor, that he told Brownfield he thought it was between Weltner and Brownfield, that witness’s counsel advised him that he did right in not signing it. Being asked if he relinquished all claim to the fund, Hagan said:
    •“I am willing to accept the money in the sheriff’s hands, but I expect to hold Brownfield, or hold on to both. If I am entitled to the money coming on this execution, as guardian, I want it and apply for it under that head. I desire to avoid all personal responsibility, and do my duty under the law, as guardian.”
    The auditor having reported this evidence, the court decreed that “ rent not exceeding one year be paid out of the fund, and that the costs of the audit be charged to the fund.”
    Weltner appealed to the Supreme Court and assigned for error, that the court erred:
    1. In decreeing that rent not exceeding one year be paid out of the fund, instead of confirming the report giving the fund to Weltner, the execution-creditor.
    2. In making their decree so vague and uncertain that it cannot be told to whom the rent is payable, what amount is to be paid, nor when the year for which the rent is to be paid began or ended.
    3. In decreeing that the costs of audit be charged to the fund, instead of sustaining the exception of the appellant, and charging Basil Brownfield with the costs of auditing.

      W. Parshall, for appellant,
    referred to Grreider’s Appeal, 5 Barr 422; Boyd v. McCombs, 4 Id. 146; Menough’s Appeal, 5 W. & S. 433.

      J. Qollins, for appellee,
    referred to West v. Sink, 2 Yeates 274; Case v. Davis, 3 Harris 80; Wickey v. Eyster, 8 P. F. Smith 501.
   The opinion of the court was delivered, July 7th 1870, by

Williams, J. —

The fund for distribution in this case arises from the sheriff s sale of the personal property of William F. Core, who was the lessee and occupant of the farm belonging to his minor daughter, M. M. B. Core, now Mrs. Hutchinson, of whom John Weltner, the appellant, was a former guardian. Weltner settled an account'of his guardianship on the 14th of March 1865, and the same day, upon his own petition, he was discharged from the trust. On the 5th of June 1865, Basil Brownfield was appointed guardian of the ward, and upon her petition, on the 16th of June 1868, he was removed from the trust; and the next day, June 17th, Robert Hagan was appointed guardian in his place. After Weltner’s discharge he obtained from William F. Core, the tenant of the ward’s land, his judgment note for the arrears of rent which had accrued during his guardianship, upon which judgment was entered in the Common Pleas of Fayette ■ county at March term 1867; and on the 25th of August 1868, an alias execution was issued thereon under which the sheriff levied upon the goods of the defendant Core, on the demised premises, and made by a sale thereof, on the 7th of September 1868, the sum of $423.50, the money in controversy.

At the time of the sale, Core was in the occupancy of the ward’s land, under a verbal lease from Brownfield, at an annual rent of $500; and he was also indebted to Brownfield as guardian of the ward in the sum of $450 for the rent of the previous year.

On the hearing before the auditor appointed to distribute the proceeds of sale, Brownfield claimed the fund, for rent due him, as landlord and guardian, for the years 1867 and 1868. He also caused a written notice to be handed to the auditor, purporting to come from Robert Hagan, his successor in the guardianship, claiming the fund for the rent of the farm due the ward, or himself as her guardian, for the years 1867 and 1868. Hagan disavowed the notice and claim, and the auditor gave the fund to Weltner, the execution creditor. Brownfield excepted to the report of the auditor, and the court referred the report back to him with instructions to inquire whether Hagan, the guardian, gave notice that he claimed for rent out of the proceeds of the sale; and if so, whether he afterwards withdrew the notice, * * * and whether he now persist in said notice, or has abandoned and withdrawn the same, together with the evidence upon which his report is made. The testimony of Hagan annexed to the supplemental report shows that he did not at any time give notice that he claimed the fund as guardian, nor did he sign any paper claiming the fund, though requested by Brownfield to sign it. In answer to the question, whether he relinquished all claim to the funds in the hands of the sheriff, he said: If I am entitled to the money coming on this execution, as guardian, I want it and apply for it under that head. I desire to avoid all personal responsibility, and do my duty, under the law, as guardian. Upon the filing of the supplemental report, the court ordered and decreed that rent, not exceeding one year, be paid out of the fund, and that the costs of the audit be charged to the fund.

Did the court then err, as alleged by the appellant, in decreeing that rent not exceeding one year, be paid out of the fund, instead of confirming the report giving the fund to the execution creditor? Is the decree so vague and uncertain that it cannot be told to whom the rent is payable, what amount is to be paid, nor when the year for which the rent is to be paid, began or ended ? And should the costs of the audit be charged to Brownfield and not to the fund ? Under the facts of this case, Hagan, the present guardian, must be regarded as a party to this proceeding, and as claiming the fund on behalf of his ward. As owner of the demised premises, the ward is, in equity, clearly entitled to the rent; and if the sale of the tenant’s goods had been made on the execution of a stranger for an ordinary debt, there could be no doubt as to the wards right to one year’s rent out of the proceeds of sale, if sufficient for its payment. But the sale was made on the execution of a former guardian for arrears of rent, which he had failed to collect. Does the fact that the sale was so made, affect the right of the ward to claim, as landlord, the proceeds of sale ? Why should it ? The goods of the tenant were liable to distress, and might have been distrained by the present guardian, in right of the ward, for all the arrears of rent which the tenant owed: Moss’ Appeal, 11 Casey 162. If he could distrain for the arrears which accrued during the guardianship of Brownfield, he could distrain for the arrears which accrued during the guardianship of Weltner. The judgment in favor of Weltner, without satisfaction, did not take away the ward’s right of distress: Bantleon v. Smith, 2 Binn. 146; 3 Kent Com. 476, note a. Though the appellant’s execution was for rent to which the ward is equitably entitled, why may we not treat it as the execution of a stranger so far as there is any conflict between their rights ? Thus treating it, it is clear that the ward, or her present guardian in her right, is entitled to the whole fund, inasmuch as it is less than her claim for one year’s rent — and there is no error in the decree of the court below so far as it appropriates the fund to the payment of rent not exceeding one year. But to the rent of what year shall the fund be applied ? Shall it be applied in satisfaction of the rent which first accrued, or to the rent which last accrued? Or shall it be applied in payment of the rent for the expired portion of the current year although it was not due at the time of the levy and sale? The ward is equitably entitled to all the arrears of rent due from the tenant or for which he was liable, without any regard or distinction as to the time in which they accrued. It is well settled that the landlord is not confined in his claim for rent, out of the proceeds of the sale of the tenant’s goods, to the rent for the last year or for the year immediately preceding the sale, so that no more than one year’s rent be demanded and received: Ege v. Ege, 5 Watts 134; Richie v. McCauly, 4 Barr 471; Parker & Keller’s Appeal, 5 Id. 390. And if there were no equities to forbid it, the law, in analogy to the rule in the case of other debts, would doubtless apply the proceeds to the payment of the rent which first accrued. But in this case the equities both of the ward and her present guardian require the proceeds of sale to be applied, in the first instance, to the payment of the apportioned rent of the current year from the 18th of April 1868 to the 1st of September 1868 — the date of the levy — amounting to the sum of $208.33J. As the sale of the tenant’s goods lessened his ability to pay the rent of the current year and to this extent impaired the security which they would otherwise have had for its payment, it is but just that the rent for the expired portion of the year should be paid out of the proceeds of sale. It is true that by the terms of the lease the rent would not have become due and payable until the expiration of the year, but at that time it would have been the duty of the guardian to collect it, and he would have had the right to distrain for it in case of its non-payment. He is therefore entitled, under the provisions of the act relating to executions, to be paid, for the use of his ward, the apportioned rent of the current year, at the time of the levy, out of the proceeds of sale for distribution: Wickey v. Eyster, 8 P. F. Smith 501. But how shall the residue of the fund be applied ? Shall it be applied in payment of the rent which accrued during the guardianship of Weltner, or to the rent which accrued during the guardianship of Brownfield, his successor in the trust? If the rule in the case of other debts is applicable to rent, it must be applied to the arrears first due. Are there any equities between the ward and her guardians, or between the guardians themselves, which demand a different application ? The judgment of Weltner is not a satisfaction of the rent, nor does it take away the ward’s remedy by distress. She has the same right to distrain for the rent which accrued during his guardianship, as to distrain for the rent which accrued during Brownfield’s. The judgment gives her no additional right or security, for the tenant has no property on which it is alien. Both Weltner and Brownfield are responsible for the rent which they neglected to collect, and are bound to account for it and pay it over to the present guardian; and both, so far as appears, are solvent and amply able to pay the amounts for which they are respectively liable. Neither the ward, nor her present guardian has any equity to demand a different application of the residue of the fund than that which the law in other eases would make. Have, then, the former guardians any such equities as should change the result ? At the date of the levy and sale, the tenant was indebted to both as guardians for arrears of rent which they had neglected to collect, and for which they are accountable to the ward. In this respect their equities are equal. But the legal right of Weltner is superior to that of Brownfield, for he has obtained judgment against the tenant for the arrears which accrued during his guardianship, and the fund for distribution was realized on his execution. As against Brownfield he is clearly entitled to have the proceeds of sale applied to the payment of the rent for which he is responsible. While, therefore, the ward is entitled to the money, we are of the opinion that the residue of the fund after deducting the costs of the audit should be applied in satisfaction of the rent which accrued during the guardianship of the appellant, and that he should have credit therefor in his account as guardian. It follows that the tenant will be entitled to a credit for a similar amount on the execution out of which the proceeds of sale in this case were realized. We discover no sufficient reason for modifying or reversing the decree of the court below in regard to the costs of the audit, but we think that the costs of this appeal should be paid by Brownfield.

And now, July 7th 1870, it is ordered, adjudged and decreed that the decree of the court below distributing the fund in this case be reformed and modified as follows, viz.: It is now ordered and decreed that the said fund, deducting the costs of the audit, &c., in the court below be paid to Robert Hagan, guardian of M. M. B. Hutchinson, (formerly Core) for the rent of the demised premises, belonging to the said ward, in the possession and occupancy of Wm. E. Core, the defendant in the execution, as tenant thereof: and that the sum of $208.33J, part of the said fund, be applied in payment and satisfaction of the apportioned rent of the demised premises of the current year, to wit, from April 1st 1868 to September 1st 1868 — the date of the levy — and that the residue of the said fund, after deducting the costs of the audit, &e., in the court below, be applied in payment of the rent owed by the said tenant and which accrued during the guardianship of John Weltner, the appellant, and that the same be credited on his execution against the said tenant, and that he be allowed a credit therefore in his account as guardian of the said ward; and that the costs of this appeal be paid by the appellee, Basil Brownfield.

And it is further ordered and decreed that the record he remitted to the court below with instructions to carry this decree into effect.


author: SuARSWOOd, J. —

text:
    Weaver’s Appeal.
    1. Advancement is always a question of intention.
    2. When there is no evidence of what occurred at the time of the alleged advancement, the attendant circumstances are to be considered in determining whether it be a loan, gift or advancement.
    3. Among the circumstances, the most important are, the amount as compared with the parents' estate, the number of children and the purpose of the advance.
    4. It is always a presumption that a parent means to treat his children equally.
    5. If his estate is large, a comparatively small sum will raise the presumption of a gift.
    6. If the purpose was education, it will be presumed until rebutted, to have been in discharge of parental duty.
    7. A conveyance to a child either directly or by payment of the purchase-money, and having the deed made to the child, is primfi. facie an advancement.
    November 16th 1869.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Orphans’ Court of Cfreene county: in Isaac Weaver’s estate, No. 56, to October and November Term 1869.
    On the settlement of the estate of Isaac Weaver, deceased, it was ascertained that there was a balance of $5220.41 in the hands of the administrators due the estate. J. A. J. Buchanan, Esq., was appointed auditor to ascertain advancements and make distribution. The only contested question before the auditor was whether a sum of $1000, admitted to have been received from the decedent about fifteen years before his death by Baldwin his oldest son, was an advancement.
    By the report of the auditor and the evidence accompanying it, it appeared that the decedent died October 22d 1866, and that the whole of his estate real and personal amounted to about $25,000; he had thirteen children, three of whom died quite young and without issue. Baldwin remained with his father and worked for him for six years after his arrival at age. About that time, desiring to go into business for himself, he received the $1000 from his father and purchased a farm. Baldwin afterwards said that he had got $1000 from his father which he had put into the farm; that afterwards he wanted more money of his father to stock his farm, when his father said that he had let him have $1000 and he must make the balance himself. Afterwards his father wanted him to give a judgment-note for “ the money he had let him have to put into the land, but Baldwin declined, saying if his father wanted the money he could make it out of the land; nothing further had been said by his father afterwards about the money.” The widow of the decedent testified that if the decedent made a will Baldwin was to be provided for in that, if not it was to be deducted from his share of the estate; the decedent told his wife, about the time Baldwin got the money, that $500 was part of his share of his estate and the other $500 he was to pay to the girls. These declarations to the wife were not in the presence of Baldwin. A daughter got $500 from the decedent, who said when he gave it he was in the habit of taking notes in such cases from his children; no pen and ink were at hand and the note was not taken. Another daughter got $300, and with her husband gave this receipt:—

      “ Received of Isaac Weaver, my wife’s father, the just and lawful sum of $300. It being intended as a part or all of my wife’s share of his estate as he the said Isaac Weaver may determine hereafter, hut if the said Isaac Weaver should die without a will, this receipt is to be considered as a part of my wife’s share of her father’s estate.”
    Baldwin was indebted to his father’s estate on a sealed note dated November 6th 1861, for $80 payable on demand with interest. The decedent had also declared that he had been helping Baldwin considerable and intended to help him more; he had been a good boy and labored on his premises three years before and three years after his marriage; he intended the labor Baldwin had done “to rebut” the money he let him have.
    The auditor found that the $1000 was not an advancement, but a debt to the father, and as such barred by the Statute of Limitations. He distributed the fund accordingly. On exceptions the court, Gilmore, P. J., overruled the finding of the auditor and decided that the $1000 was an advancement.
    Baldwin Weaver appealed to the Supreme Court and assigned the decree for error.

      Furman Ritchie, for appellants. —
    An advancement is an irrevocable gift by a parent in his lifetime on account of the child’s share in his estate: High’s Appeal, 9 Harris 287; Yundt’s Appeal, 1 Id. 580. Declarations of the parent in the absence of the child are not proof of advancement without evidence aliunde: Levering v. Rittenhouse, 4 Whart. 130; Haverstock v. Sarbach, 1 W. & S, 390; Miller’s Appeal, 4 Wright 58. The Act of April 8th 1833, § 16, Pamph. L. 319, Purd. 565, pi. 35, does not declare what shall constitute an advancement. The presumption of advancement may be rebutted by proof: Dutch’s Appeal, 7 P. F. Smith 465; Zeiter v. Zeiter, 4 Watts 214; King’s Estate, 6 Whart. 373.

      R. W. Downey, for appellees,
    cited Hengst’s Estate, 6 Watts 87; Dutch’s Appeal, supra.

   The opinion of the court was delivered, January 3d 1870, by

SuARSWOOd, J. —

Advancement is undoubtedly always a question of intention. When there is no evidence of what occurred at the time the money or other valuable was given and received, the surrounding circumstances are to be considered in determining whether it ought to be considered as a loan, a gift or an advancement. It becomes necessarily a subject of presumption. Among these surrounding circumstances the most important are the amount, as compared with the estate of the parent, and the number of the children, and the purpose for which the advance was made. It is always a natural and reasonable presumption that a parent means to treat his children equally. If his estate is large, a comparatively small sum will raise the presumption of a gift or present. “ If there be no evidence at all on the subject,” said Sergeant, J., in Daniel King’s Estate, 6 Whart. 870, “then whether it was a present or an advancement may be judged of by its amount and character.” So if it be shown that the purpose was the education of the children, it will be presumed- to have been in discharge of the parental duty, until rebutted by other evidence: Riddle’s Estate, 7 Harris 431.

The evidence in the case before us is very scant. No one examined as a witness was present when the money was paid. The amount was large, perhaps equal to the full share of the son in his father’s estate,-as valued at the time. We learn from the evidence given of subsequent declarations by the son that it was advanced to enable him to purchase a farm. No note or other security was taken. Upon this state of the evidence, what is the prima facies ? Certainly, that it was an advancement. “Nothing is better settled,” said Mr. Justice Strong, in Dutch’s Appeal, 7 P. F. Smith 461, “than that a conveyance of land by a father to a child, either directly or by payment of the purchase-money, and having the deed made to the child is, primfi facie, an advanced portion; and the presumption is greatly strengthened when the value of the land bears any considerable proportion to the father’s whole estate.’-’

Is there anything in the evidence to rebut this primfi facie presumption, and to show that it was either a gift or a loan ? Samuel Gore testified to a conversation with Isaac Weaver a short time before his death, in which he said: “ Baldwin had been a good boy and labored on his premises over three years before his marriage and three years after. He said he had let him have some money at one time and intended that the labor Baldwin had done to rebut it.” This evidence is too loose to change the character of the transaction from an advancement to a gift. It does not ascertain the money, and might well refer to some smaller amount, as the note of $80. It becomes still more improbable when we advert to the evidence next to be noticed, which is relied on, by the appellant to show that it was a loan or debt. The appellant’s own declarations prove clearly that it was neither a gift nor the payment of a debt for wages. Hiram Estel testifies that the appellant told him — “ some time after that his father came to him and wanted a judgment-note for the money he had let him have to put into the land. He (Baldwin) said no, that there was the farm, and if he wanted the money he could make it out of it.” The contention is, that this shows that it was originally a loan. Does it not rather evince a desire on the father’s part to convert it into a debt, but declined by the son ? The father possessed no evidence of the original advance. If the son acknowledged it as a debt, and was willing that his father should make it out of the farm, why did he refuse to sign the note ? It does not appear that his objection was to the form of the security. He does not so say. We must remember that all this is the appellant’s own account of what occurred. It still leaves the mind in suspense. The idea of turning the advance into a loan, and then setting up the Statute of Limitations as a bar, is not entitled to much favor. There should be clear and satisfactory evidence to rebut the natural presumption growing out of the circumstances. Nor does the fact that Isaac Weaver, in making an advancement to one of his daughters, took an acknowledgment of it from her and her husband, tend to prove that this was a loan. Men are generally more careful in dealing with their sons-in-law than with their own sons, and it is an argument of little weight when it is agreed on all hands that the advance was made in this instance without taking any writing whatever to show its character.

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