author: Mr. Justice Paxson

text:
    Lycoming Fire Insurance Company versus Storrs. Same versus Same.
    . A writ of error taken to the refusal of the court below to set aside the service of a writ of summons on the defendant is premature and will be quashed.
    2. Where after the taking of such writ of error, the plaintiif enters a rule to arbitrate, and the defendant, protesting against proceeding with the case, enters an appearance de bene esse, appears before the arbitrators, agrees to continuance, agrees to the substitution of another arbitrator in the place of one already chosen, contests the ease before the arbitrators, and finally appeals from their award, his conduct will be deemed equivalent to service and a waiver of the protests previously filed, no matter how irregular the service of the original process.
    3. Where an action is brought by a voluntary assignee for the benefit of creditors upon a policy of insuran.ee, issued to his assignor, and the company defends on the ground that the plaintiff’s assignor has failed to pay his premiums in accordance with the terms of the policy, after notice has been duly given him, it is no answer on the part of the assignee, to show that he agreed with the agent of the company, after the assignment, that such notice should be given to him, and that this agreement was not complied with. 'The assignee never stood in any contract relation with the company, and it is, therefore, wholly immaterial what agreement he made with the agent.
    4. Where an insurance company defends against the payment of the amount of a policy of insurance, on the ground of non payment of a premium, the assured can not set up as excuse for non payment, the fact that he has agreed with an agent of the company, that the latter should credit the premium on a debt he owed the assured.
    5. A policy of insurance wherein the application therefor is referred to as part thereof, is inadmissible in evidence, without the application, where the latter is within the control of the assured.
    6. In an action by a voluntary assignee, for the benefit of creditors, a deed reconveying the assigned property to the assignor, which bears date subsequent to the institution of suit, is admissible as cumulative evidence, to show that the assignor is the real party in interest.
    March 8th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Bradford county. Two writs of error: Of July Term 1879, No. 116, and July Term 1880, No. 54.
    Assumpsit upon a policy of fire insurance, by William R. Storrs, assignee for the benefit of creditors of John F. Means, against the Lycoming Fire Insurance Company.
    The record showed the following facts: The writ issued November 27th 1878, and on December 6th 1878, was returned served on O. D. Bartlett, agent. A declaration was filed, and on January 6th 1879, judgment was entered for plaintiff for want of an appearance. The court subsequently, on motion of defendant, made absolute a rule to show cause why judgment should not be stricken off, and service of summons set aside. An alias summons was thereupon issued and was returned served on Walter G. Tracy, agent of the Lycoming Insurance Company ; also on the Lycoming Fire Insurance Company, by personally making known the contents of said writ to Edward P. J. Painter, president of the said company. The defendant took a rule to show cause why service of the alias summons should not be set aside. The affidavit of Painter in support of the rule set forth that the writ was served on him at the principal office of the company at Muncy, Lycoming county, by the sheriff of Bradford county ; that since the original writ of summons had been set aside by the court, and before the service of the alias writ on him, the plaintiff, Storrs, assignee, &c., of Means, had, by order of the Common Pleas of Bradford county, reconveyed unto said Means all the assigned estate, by reason whereof Storrs had no longer any right to or control over the claims sued for. Tracy also filed an affidavit setting forth that he was merely a local agent of the company 'defendant, having limited powers in Towanda and its vicinity.
    The court, Moiutow, P. J., held that Tracy clearly was such an agent who may be served under the 6th section of the Act of April 8th 1851; and that this service being good, it was unnecessary to decide the question whether the service on Painter was good. The court further held, that the setting aside of the former service on Bartlett did not end the suit, and that having been rightly brought in the name of Storrs, assignee, his subsequent assignment to Means did not operate as an abatement. The court therefore entered an order discharging the rule to show cause why the service of the alias should not bo set aside.
    The defendant excepted, and took a writ of error to the Supreme Court, July term 1879, No. 116, and entered bail in error, but the cause was not reached for argument at the January term 1880.
    In the meantime the court below, holding that the writ of error w.as not a supersedeas, the cause was proceeded in as follows :—
    The plaintiff took a rule to arbitrate, which was served oil Tracy as agent of the defendant. Messrs. Williams & Angle, attorneys de lene esse for the defendant, protested against the choosing of arbitrators and proceeding with the case, and moved the court for an order staying further proceedings pending the writ of error. This motion was refused by the court. When the arbitrators were chosen, the defendants’ counsel attended under protest, but participated in choosing the arbitrators, and attended on the trial before them and made defence.
    On September 27th 1879, the arbitrators filed the following report:
    “Now, to wit, August 29th 1879, this action was continued to September 26th 1879, at same place, at 2 o’clock p. M., by agreement of parties, September 29th 1879, Geo. Landon and W. J. Young, two of the above-named arbitrators, met the parties at the place mentioned in the above notice, A. L. Cranmer, the other above-named arbitrator not appearing, II. L. Scott was agreed upon by the parties to act in his stead, and the said arbitrators, to wit, George Landon, W. J. Young and H. L. Scott, having been first duly sworn, do proceed to hear the parties, their proofs and allegations, and continuing to September 27th 1879, do award in favor of the plaintiff, three thousand two hundred and five dollars and fifty cents, and cost.
    $3205.50.” W. G. Young, )

    Geo. Landon, V Arbitrators.
    II. L. Scott, )
    The defendants’ attorney took a rule to show cause why the award should not be set aside, on the ground that the rule to choose arbitrators was improperly served on Tracy, instead of on the “ president, cashier, secretary or chief clerk” of the defendant corporation, as directed by the Act of June 16th 1836, sect. 12.
    The court discharged the rule, saying, in an opinion filed : “ It is true the service of the rule to choose arbitrators and notice of the time and place of the trial, on Tracy, was defective, and if the defendants’ counsel had not attended at either the choosing or arbitration, the award would have been set aside. But I do not understand that entering an appearance de lene esse has any such effect. The service of the alias summons was held good. There was no retraxit of the appearance, and it operated as a full appearance: Bolard v. Mason, 16 P. F. Smith 138; Blair v. Weaver, 11 S. & R. 84. These cases do not conflict with Coleman’s Appeal, 25 P. F. Smith 441. Eor if it be held by the Supreme Court that the service of the alias summons was not good, then all the proceedings in the case subsequent to the taking the writ of error fall. The defendant, therefore, has the full benefit of its conditional appearance. But so far as it relates to this court, the service having been held good, and the conditional appearance not having been withdrawn, it is a full appearance ás to the subsequent proceeding here.”
    The defendant thereupon appealed from the award. A rule to plead having been entered, the defendants, “protesting that the service of summons in this case is illegal and wholly insufficient, and reserving to themselves all exceptions heretofore taken in said case, and further protesting that they are not at this time bound to plead to the plaintiff’s cause of action for the reasons set forth, in the exceptions above set forth, but in pursuance of rule and notice served on them by plaintiff’s counsel, and under protest by their attorneys, Williams & Angle, plead non assumpsit, with leave to give special matter in evidence. Williams & Angle,
    “ Attorneys de lene esse for defendants.”

      When the case was called for trial, February 18th 1880, before Mob,now, P. J., before the jury was sworn, the defendants’ attorneys de lene esse filed a written protest against being compelled to go to trial, except subject to the objections that the service of the writ was illegal, and that the writ of error, then pending, was a supersedeas, and the case beyond the jurisdiction of the court. Thereupon the defendants’ attorneys appeared specially and made defence.
    Upon the trial, the plaintiff offered in evidence a policy of insurance from the company defendant to John F. Means, on the Means House, Towanda, Pennsylvania, for $3000. The defendant produced and tendered to the plaintiff a premium note and the application of J. F. Means on which the policy was issued, and which by the terms of the policy was made a part thereof, and objected to the admission of the policy unless accompanied by the application. Plaintiff’s counsel declined to put the application in evidence, stating that they expected to prove that the signature of John F. Means to the application was obtained by fraud, and that it is not, under the circumstances, a part of the contract. The court overruled the defendants’ objection, and admitted the policy in evidence without the application. Exception. (5th assignment of error.)
    The plaintiff offered deed of assignment of J. F. Means to W. R. Storrs for the benefit of creditors, dated February 3d 1877, recorded, &c.
    It was in evidence that shortly after the assignment, Means and Storrs had a conversation with Russell and Bartlett, Bartlett representing the company defendant; that in pursuance of the purpose of this meeting, Russell prepared a statement to the effect that Means, having assigned all his property to Storrs for the benefit of creditors, the loss, if any, on the property covered by the policies, would be paid to Storrs. Russell endorsed these agreements upon his policies, and testified that Bartlett agreed to do likewise, and also to give notice to Storrs of any assessments. Bartlett denied this agreement, and that he was to give Storrs notice. In the ensuing May, notice of assessment, No. 35, payable under the policy within thirty days, was sent to Means, but not to Storrs, who never knew anything of it until after the fire. Means testified, that upon the receipt of notice, he agreed with Bartlett that it should be paid by crediting the latter with the amount of the assessment on a land contract which he had with Bartlett. (The admission of this testimony constitutes the 8th assignment of error.)
    The notice contained a clause avoiding the policy if the assessment be not paid within thirty days, and also denying the authority of the agent to waive any of its provisions, or receive other than actual payment. Evidence as to how previous assessments had been paid was offered, under objection, for the purpose of'corroborating Means in relation to the alleged indebtedness between himself and Bartlett individually. (7th assignment of error.)
    The defendant offered in evidence a deed from Storrs to Means, dated May 29th 1879, recorded, &c., wherein Storrs reassigned to Means the property assigned to him in 1877, for the purpose of showing that Storrs had no standing in court. Objected to; objection overruled. Exception. (9th assignment of error.)
    The defendant presented the following points:
    2. That according to the evidence of John F. Means, the real plaintiff, he received notice of the assessment more than thirty days prior to the fire which destroyed the property mentioned, and described in the policy, as per notice given in evidence, that he, the said John F. Means, did not pay said assessment, No. 35, as required by the terms of the eighth condition of the policy, and of the notice to pay the same which was served upon him. Ans. “ The facts here stated are undisputed, and if they were the only facts in the case relating to notice and payment of assessment, No. 85, the plaintiff could not recover. The case is, however, being tried in the name of Storrs, assignee of Means, against the defendant.” Refused.
    3. That William R. Storrs, the assignee of John F. Means, never having given his premium note to the company, and no assessment having been charged to him on any note of said Means in connection with the policy upon which suit is brought, did not become a member of the company and was not entitled to notice; and that the notice served on John F. Means was good and sufficient under the terms of the contract of insurance. This point the court did npt specifically answer.
    5. That under all the evidence in the' case the plaintiff is not entitled to recover, and the verdict must be in favor of the company defendant. This point was not answered. (2d, 3d and 4th assignments of error.)
    The court charged the jury, inter alia: “Now if you find from all the evidence in the case that Bartlett was the agent of the company, with power to write policies; that immediately after the assignment to Storrs he agreed to write on this policy that Storrs was the assignee of Means for the benefit of creditors, and that in case of loss the insurance was to be paid to Storrs; and if you farther find that he did not give him notice of assessment No. 35, we think the plaintiff is entitled to recover; because we think that under his power to write policies he could write upon the face of this policy what Judge Russell testified he agreed to write upon it, and we think also that he had the power under his agency to agree to give this notice to Storrs.” (6th assignment of error.)
    Yerdict for plaintiff for $3300, and judgment thereon, whereupon the defendant took this writ, assigning for error the refusal to set aside the writ of summons, the admission of the evidence objected to, the refusal to affirm its points, and the charge, ut supra.

      Both writs of error were argued together.

      H. W. Watson and Williams (Angle with them), for the plaintiff in error.
    The service of the summons on Tracy was illegal. It could not be made on him under the Act of April 8th 1851, as that applies only to foreign corporations. Cochran v. Library Co., 6 Phila. R. 492; Parke v. Com. Ins. Co., 8 Wright 422; Act of April 24th 1857, Pamph. L. 318; Brobst v. Bank of Pennsylvania, 5 W. & S. 379; Liblong v. Kansas Fire Ins. Co., 1 Norris 415. Where the service is irregular, it is not waived by an appearance de bene esse: Winrow v. Raymond, 4 Barr 501; Boland v. Mason, 16 P. F. Smith 138; Blair v. Weaver, 11 S. & R. 85; 2 Tr. & H. Pr. (4th ed.) 70. Nor does the making of a defence, under such an appearance and under protest, estop the defendant from setting up the defence of want of jurisdiction at any subsequent stage of the cause: Coleman’s Appeal, 25 P. F. Smith 460. The evidence showed that Bartlett was a local agent of the company to make surveys and receive applications, with no power to waive any condition in a policy. His powers are defined by the by-laws, of which Means, as a member of the company, had binding notice.
    The assignment of Means to Storrs for creditors did not change his relation to the company, nor make Storrs a member of the company. Storrs was not entitled to notice of assessments, and if Bartlett agreed to give him notice, it was beyond his power, and did not bind the company. Means, in fact, relied on Bartlett to pay his assessments for him and credit the amount to a private account. Assessments cannot be paid in such manner so as to bind the company: Crawford County Mutual Ins. Co. v. Cochran, 7 Norris 230.

      Overton and Davies (Carnochan with them), for defendant in error.
   Mr. Justice Paxson

delivered the opinion of the court, May 2d 1881.

The defendant below has taken two writs of error in this case. The first was to the refusal of the court to set aside the service of the writ. The second was to the final judgment. It is plain the first writ was premature: Coleman’s Appeal, 25 P. F. Smith 441. This writ must be quashed. As the same point is raised by the first assignment of error upon the second writ, the defendant will have the full benefit of it for all it is worth.

We need not discuss the question whether the service of the summons upon W. Gr. Tracy, the local agent, bound the company defendant. The latter appeared de bene esse, and subsequently moved to set aside the service. This the court refused to do. At this point, the defendant was not in court unless the writ had been properly served. It had then but one of two courses to pursue; the one was to come in and defend the suit; the other was to stay out and take the risk of the service. It attempted to do both, and as might have been anticipated, did not succeed. The plaintiff took out a rule of reference. The defendant appeared before the arbitrators, agreed to a continuance, and also agreed to a substitution of another arbitrator in place of one first chosen; contested the cause before the arbitrators, and then appealed from their award. The defendant’s appearance before the arbitrators and its subsequent appeal were equal to service (Evans v. Duncan, 4 Watts 24), and its agreement to continue and to substitute an arbitrator, was a waiver of the protests previously filed. We see no error in the first assignment.

- 2. The second assignment is sustained. The defendant’s second point should have been affirmed. The facts were not disputed that John E. Means, the assured, received notice of the assessment more than thirty days prior to the fire which destroyed the property insured, and that the said Means did not pay his assessment, No. 35, as required by his policy and the notice served upon him to do so. The learned judge, while admitting the facts as above stated, declined the point for the reason that the case was being tried in the name of Storrs, assignee of Means, against the defendant. This was error. Storrs was a voluntary assignee for creditors. The company had nothing to do with him. He held no policy, nor had he any contract relation with the company.. Means still had the beneficial interest in the policy; if paid, the proceeds would go to him or to the payment of his debts, which is the same thing. Hence it is entirely immaterial whether the agent Bartlett made the agreement referred to in the sixth assignment or not. Granted that it was made and by competent authority, and that the company failed to give notice to the assignee of the assessment, what does it matter ? Can the assignee complain ? Certainly not; he was not insured and had no interest. Can Means complain ? His mouth is closed because he had notice and did not pay the assessment. Nor does it help him that he supposed his assessment had been paid to the company by Bartlett the agent. He had not paid Bartlett, and any agreement between them that Bartlett should credit the premium on a debt he owed Means on a land contract, would not avail as against the company. Bartlett had no right to take the company’s money to pay his private debt to Means, and this the latter knew or ought to have known. The 2d, 3d, 4th, 6th, 7th and 8th assignments are substantially covered by the foregoing remarks and are sustained.

5. This assignment is ruled by the Lycoming Mutual Ins. Co. v. Sailer, 17 P. F. Smith 108, where it was held that it was error to admit the policy in evidence without the application, where the latter forms a part of it. In that case the defect was cured by the defendant putting in evidence the application. Such was not the case here. The defendant produced the application in court and tendered it to the plaintiff, who refused to offer it. The court admitted the policy without the application, which was error.

9. The deed from Storrs, assignee, to Means, reconveying the assigned property, was competent evidence to show that Means was the real party in interest. This already appeared; the evidence was cumulative and not very important. Yet I see no good reason why it should not have been recei ved.

The first writ of error is quashed.

The judgment is reversed upon the second writ, and a venire facias de novo awarded.

Mercur, J., dissented.


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Conmey versus Macfarlane, Administrator of Overton.
    1. In a suit on a promissory note, between the immediate parties, in which the defence is want of consideration and sufficient evidence has been to rebut the prima facie consideration imported by the note itself, the burden remains upon the plaintiff to satisfy the jury, upon all the evidence in the cause, that the note was founded on a valuable consideration.
    2. A distinction exists, with regard to the burden of proof, between the defence of want of consideration, and that of failure of consideration ; the latter being an affirmative proposition, the burden of proving it always rests on the defendant.
    3. The court below instructed the jury, that if they found the note in suit was given by defendant to plaintiff, to secure payment of money stolen by defendant’s son, without any threat or promise by plaintiff to have the son’s sentence made heavier or lighter, the transaction was lawful, and the note, if based upon it, was for a sufficient consideration. Held, to be error. A note given to secure the payment of damages, arising from the tort of a stranger, without other consideration, is nudum pactum.

    March 9th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Bradford county: Of January Term 1881, No. 42.
    Assumpsit, by Edward Overton against John Conmey, on a promissory note given by defendant to plaintiff for $450. The plaintiff died before trial, and his administrator, James Macfarlane, was substituted.
    On the trial, before Morrow, P. J., the plaintiff put the note in evidence and rested. The defendant set up want of consideration, and produced evidence to the following effect: In December 1877, Edward Overton was robbed of between §600 and $800, and some valuable papers, by Richard Conmey, son of John Conmey, the defendant. Richard was arrested, tried and found guilty. After his conviction, and before his sentence, the defendant called on the plaintiff with the view of securing his influence to prevent his son’s sentence, or get it made lighter. He paid Mr. Overton $200 in money and gave him the note in suit for $450, of which $50 was to pay Overton’s attorney’s fee, and the balance to secure repayment of the amount stolen. The defendant immediately after giving the note said, “ I hope you will do all in your power for my boy — it is breaking his mother’s heart,” to which the plaintiff replied, “ Get that out of your head; I have told you several times that I could not do anything with the coui t — that would be impossible — what I would do and could do is through the influence of counsel.” Subsequently the defendant’s daughter called upon Overton, in relation to using his influence in behalf of her brother, when Overton stated that he would do nothing unless he first got the amount of the note in money, and the stolen papers returned. Richard Conmey was afterwards sentenced to imprisonment in the penitentiary.
    The defendant presented the following points:
    1. That if the jury find from the evidence the consideration given for the note upon which suit is brought, was in whole or in part that Edward Overton was to use his influence to have the sentence of Richard Conmey made lighter, the consideration for said note was illegal, and the plaintiff cannot recover.
    “ Affirmed.”
    2. That unless the jury find from the evidence that John Conmey has received a valuable consideration for said note, the plaintiff cannot recover.
    Ans. “ Under the evidence in this case this point is denied, but we say that the note itself purports a consideration, and if you find it was given by the defendant to Mr. Overton to secure part payment of the money which Richard Conmey stole from him, without any threat or promise on Mr. Overton’s part to have Richard’s sentence made heavier or lighter, the transaction was lawful,, and the note, if based upon it, was for a sufficient consideration, and the plaintiff may recover.”
    3. That under all the evidence in the case the jury should find in favor of the defendant.
    “ Refused.”
    In the general charge the court said:
    “ If on the other hand, you find that Mr. Overton had a claim against Richard for money stolen of him by Richard, and in settlement and adjustment of this claim, John Conmey voluntarily paid $200 in money, and gave this note to secure the payment of the remainder, and there were no threats or promise on the part of Mr. Overton as just mentioned, the plaintiff may recover.”

      After the jury had been out several hours they came into court, and inquired if the payment of Mr. Overton’s claim against Richard would extinguish it. They were instructed it would — that if the representative of Mr. Overton were to bring suit against Richard, proof of payment of the debt or claim by John Conmey, would be a complete defence.
    Verdict and judgment for the plaintiff for $500.75.
    The defendant took this writ of error, assigning for error the answers to his second and third points as above.

      L. M. Hall and D. C. De Witt, for the plaintiffs in error.
    The note in suit was simply a promise by John Conmey to pay the pre-existing debt or damages of another, founded on no new consideration, and it was, therefore, void for want of consideration: Bixler v. Ream, 3 P. & W. 282. The court instructed the jury, however, in answer to our second point, that the giving of the note to secure payment of the money stolen by the son, was a sufficient consideration. This was clearly error. There was no evidence of an agreement by Overton to take the note in payment, nor to release his claim against the son. The instruction took the case from the jury on the question of want of consideration, and loft them free to find a verdict for the plaintiff, whereas the court should have directed a verdict for defendant, as requested in our third point.

      John F. Sanderson (with whom were Edward Overton, Jr., and William Maxwell), for the defendant in error.
    The real and sufficient consideration for the note was the adjustment and settlement of Edward Overton’s unliquidated claim for damages in tort against Richard Conmey. The note was not given as security for a pre-existing debt of Richard Conmey; for his civil liability, under the 71st section of the Act of March 31st 1860 (Purd. Dig. 392, pi. 16), was in trespass. In consideration of the cash payment and of the note, Overton fixed his claim at $650, which before was unliquidated because the precise sum stolen was unknown, and the value of the papers was not fixed; moreover, he was entitled to damages for the trespass. The answer to the second point is not error when read in connection with the charge, which covered the same ground. The settlement and adjustment of the claim for damages, by payment of part cash and giving the note, was the question submitted to the jury, and in this there was no error.
   Mr. Justice Trunkey

delivered the opinion of the court, March 28th 1881.

A simple contract, oral or written, without consideration, is void, and no action can be maintained upon it. The law requires that the consideration should be valuable to support an action to enforce an executory contract; but some loss or inconvenience to the promisee upon his entering into the contract, or some benefit to the promisor, is deemed a valuable consideration. Where a benefit is done to a third person, at the request of the promisor, it is sufficient to support his promise. As where a person contemporaneously becomes surety for the debt, or for the performance of a duty, of a third person, he renders himself liable thereupon. The consideration is the favor the surety receives from a compliance with his express or implied request that credit should be given to the principal. But unless the promise be contemporaneous with the original debt and constitute the inducement thereto, it is not binding. A guaranty of a debt already contracted, or of a contract already made, without a new consideration, is void. Where there is a promise to pay the pre-existing debt of another person to his creditor, there must be a new consideration to support it; for the original consideration of the principal’s contract cannot be so extended as to support the new promise. Bills of exchange and promissory notes differ from other simple contracts in this, that in an action on a bill or note a consideration is to be presumed, until the contrary appear by evidence. The defendant may give proof of want of consideration, of failure of consideration, or that the consideration was illegal; and the only difference between a note or bill and any other contract, as between the immediate parties, is, that the burden of proof respecting consideration, in a certain- sense, is shifted. These elementary principles guide to a correct conclusion in the pending case.

The defence is, want of consideration for the note sued upon, and the burden, in the first instance, is on the defendant to rebut the prima facie case the plaintiff made by producing the note. But having given such rebutting testimony, consideration being the only fact in issue, it devolved on the plaintiff to satisfy the jury that it existed. To maintain an action on a simple contract the plaintiff must prove the consideration, and where the contract is a note the note itself is prima facie evidence of a consideration. Where a want of consideration is relied on in defence of an action on a promissory note, and evidence is given on the one side in the affirmative, and on the other side in the negative, the burden of proof is on the plaintiff' to satisfy the jury, upon the whole evidence, of that fact: Delano v. Bartlett et al., 6 Cush. 364. In that case it was said, that it was incumbent on the plaintiff to prove a consideration for the note, which she did by producing it and making a prima facie case. It was competent for the defendants to rebut this evidence, and they offered testimony for that purpose. The evidence on both sides applied to the affirmative or negative of the same issue or proposition of fact, a consideration for the note, and the plaintiff’s case requiring her to establish the fact, the burden of proof was all along on -her to satisfy the jury, upon the whole evidence in the case, of the fact of a consideration for the note. Want of consideration was distinguished from failure of consideration, the latter being a distinct proposition the burden would be on the defendant to make it out against the prima facie case of the plaintiff.

It follows that the defendant’s second point, to wit: “ That unless the jury find from the evidence that John Conmey has received a valuable consideration for said note, the plaintiff cannot recover,” should have been affirmed. '

Not only was said point denied, but the jury were instructed that the note itself purports a consideration, and if they found it was given by defendant to Overton to secure part payment of the money which Richard Conmey stole from him, without any threat or promise by Overton to have Richard’s sentence made heavier or lighter, the transaction was lawful, and'the note, if based upon it, was for a sufficient consideration, and the plaintiff may recover. This, we think, w'as grave error. The note does purport consideration, but not conclusively, and if there was evidence on both sides respecting that fact, the jury would weigh the evidence of the note with the other. It was unquestioned that the note was given by defendant to Mr. Overton to secure part payment of the money which Richard Conmey stole from him. And there is not a scintilla of evidence, outside the note, of any consideration for it. And if the jury found the fact just as stated in the answer to the second point, there was no consideration, and the plaintiff was not entitled to recover.

The defendant urges that the principle that a note, given by one person for a pre-existing debt owing by another is void unless there be a new consideration, has no application, because the note in this case was not given for a debt due or to become due, “but to ascertain, fix, determine and settle an unliquidated claim of damages in tort, and the consideration, so far as John Conmey was concerned, was that very fixing, determination, liquidation and settlement.” If given for damages arising from the tort of another person, the reason for requiring an immediate consideration for the note is quite as strong, if not stronger, than if given for a debt already contracted. John Conmey was under no obligation to pay the stolen money — there was no claim against him to be adjusted and settled. He gave his nude promise to pay a certain sum. There is no pretence that the evidence shows a settlement of Overton’s claim against Richard. He was not released. No time was given him. He could have been sued immediately, and Overton would have been entitled to full damages, deducting only the money actually paid by John Conmey.

If one person have been guilty of a wrongful act which would render him liable in damages to another, and he promise to pay the injured person a sum of money as compensation, this is a mere gratuitous promise, unless made in consideration of the injured person releasing his right of action for such damages: Smart v. Chell, 7 Dowl. 781. That action was against an attorney who had neglected his client’s cause, which neglect resulted in the' client’s compulsion to pay 14¿. for costs. Motion was made in arrest of judgment on the ground that the declaration failed to show a consideration for the alleged promise, and judgment was arrested. Among other things, the court remarked: The declaration goes on to state another promise, that in consideration of' the premises the defendant promised to pay half the amount of those costs, and alleged a breach by non-payment of the 11. Now, no rule is more clear in law than that the consideration for a promise must move from the plaintiff; then I must see what this plaintiff has done or suffered, or what the defendant has gained; the detriment to the plaintiff must be the immediate consideration for the promise alleged. Suppose a.n assault had been committed, and an action of assumpsit was brought for non-payment of a sum agreed to be given for the injury done, and the declaration did not state a release of action for the assault. It is.not, therefore, enough that there be a collateral consideration for the promise, but there must be an immediate consideration.”

Applying that doctrine to this case, it is clear that if the note was given merely to secure part payment of the money which Richard Oonmey stole, the plaintiff is not entitled to recover. If it was based on Richard’s crime, and there was no immediate consideration therefor, it was nudum pactum, as would have been Richard’s promise to pay Overton a sum of money for the injury’ done, without a release by Overton of his right of action for damages.

Judgment reversed, and venire facias de novo awarded.

Mercur, and Sterrett, JJ., dissent, as the facts proved do not justify the application of the law as stated.


author: Mr. Justice Gordon

text:
    Betts versus Towanda Gas and Water Co. et al., Garnishees.
    1. The provisions of the Act of June 16th 1836, sect. 32, Pamph. L. 467, requiring the plaintiff issuing an attachment-execution against stock hold in a name other than that of defendant, to file an affidavit and enter into a recognisance, were intended to apply only to those cases whore there is a claimant disputing the defendant’s title, and not to those cases where the defendant’s title is conceded.
    2. A. issued an attachment-execution against B., defendant, and a company garnishee, but without filing an affidavit or entering a recognisance. The company pleaded that certain shares therein standing in the name of C. wore the property of B., and that C. had handed the certificates of such shares to B., assigned in blank. Judgment was thereupon entered against the garnishee for said shares. Subsequently the court, on the petition of B.’s assignee in bankruptcy under proceedings instituted subsequent to the attachment, opened the judgment, on the ground that plaintiff had not filed an affidavit and recognisance, as required by the terms of the Act of June 16th 1836, sect. 32, Pamph. L. 767. Held, that this was error, there being no adverse claimant of the stock, as cointemplaled by said act.
    March 9th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Bradford county: Of January Term 1881, No. 132.
    This was au attachment-execution, issued April 19th 1878, by N. N. Betts, plaintiff, against Chauncey S. Bussell, defendant, and George Bussell, Lewis S. Bussell and the Towanda Gas and Water Company, garnishees, on a judgment obtained January 8th 1877, by the said N. N. Betts, against Chauncey S. Bussell, for $3055.75. The attachment issued in the usual form., but without the filing of an affidavit and recognisance, as required by the 82d section of the Act of June 16th 1836, Purd. Dig. 639, pi. 29, where stock is held in another name than that of the defendant.
    The Towanda Gas Company, in reply to interrogatories, answered that at the time of the service of the attachment, two shares of the stock of the respondent company were standing on the books in the name of Chauncey S. Bussell; that three hundred shares of stock stood in the name of Lewis S. Bussell, and the company had no other knowledge as to the ownership thereof than was afforded by the books; that on the day the attachment was served, Chauncey S. Bussell stated to the president of said company that he owned one hundred and eighty shares of the stock in addition to the two shares standing in his name on the books. Lewis S. Bussell answered that at the time of the service of the attachment on him, he did not hold in his name any shares of the said stock, in trust or otherwise, for the said Chauncey S. Bussell.
    On May 5th 1879, the Towanda Gas and Water Company pleaded specially that since the filing of the company’s answers to the interrogatories, the defendant Ohauncey S. Russell, has acknowledged and stated to said company that he was the owner of 180 shares of the capital stock of said company, standing on the books of said company in the name of Lewis S. Russell by exhibiting to the president of said company the certificates therefor duly assigned in blank. * * * And the last aforesaid shares, together with the two shares of said stock standing in the name of Ohauncey S. Russell, therefore make 182 shares of said stock owned by the said Ohauncey S. Russell in the said company. And therefore the said company pleads nulla bona, except as to the aforesaid 182 shares of said stock so owned and held as aforesaid by the said defendant, Ohauncey S. Russell.
    Whereupon, on motion of plaintiff, the court on the same day entered judgment upon the above plea in favor of the plaintiff, against the Towanda Gas and Water Company for 182 shares of its stock.
    On Api'il 22d 1878,” a petition in bankruptcy was filed against Ohauncey S. Russell, who was, on May 7th 1878, adjudicated a bankrupt, and on August 9th 1879, ITenry Streeter was elected assignee in bankruptcy. Mr. Streeter was also president of the Towanda Gas and Water Company.
    On September 11th 1880, the plaintiff Betts issued a fi. fa. on his judgment, and by endorsement directed the sheriff to levy upon and sell 182 shares of the Towanda Gas and Water Company.
    On September 27th 1880, upon petition of Henry Streeter, assignee in bankruptcy of Ohauncey S. Russell, the court granted a rule to show cause why the said judgment should not be opened-as to 180 shares of stock held by Ohauncey S. Russell in the name of Lewis S. Russell, and judgment corrected so that it shall stand for two shares only, which Ohauncey S. Russell held in his own name.
    The court, Morrow, P. J., made this rulé absolute, on the ground that the attachment, having been issued without affidavit and recognisance, was void as to the 180 shares standing in the name of Lewis S. Russell. The court further held, that as the assignee in bankruptcy was not appointed until after judgment had been entered on the plea of the garnishee, without rule or argument, the assignee was not barred by lapse of time from the right to have the judgment opened as to him.
    The plaintiff took this writ of error, assigning for error the making absolute of the said rule.

      John T. Sanderson (with him Overton and Elsbree & Son), for plaintiff in error.
    After the lapse of sixteen months and five regular terms, the court had no. power to open and correct the judgment regularly entered: Mathers v. Patterson 9 Casey 485; Ullery
      v. Clark, 6 Harris 148; Railroad Co. v. Evans, 3 P. F. Smith 250. The attachment bound the 180 shares owned by the defendant, as 'well as the two shares standing in his name. The bond required by the Act of 1836, in the case of stock “ held in another name,” is for the indemnity of the real owner, if it appear that the stock does not really belong to the defendant. When Lewis S. Russell delivered the certificates to Chauncey S. Russell, with a blank transfer or power of attorney to transfer endorsed, the former ceased to hold the stock in his own name. If a bond had been given, he could have maintained no action upon it. In his answer he denied that he held any stock, in trust or otherwise, for Chauncey S. Russell. A transfer on the books of the company would have been merely a formal act, for the information or protection of the company, and wmuld not have affected the ownership, which was already vested in Chauncey S. Russell. Stock in a corporation is a chose in action, the title to which is transferred by endoi-sement and delivery of the certificate; as between vendor and vendee, transfer on the books of the company is unnecessary: German Union Assoc. v. Sendmeyer, 14 Wright 67; Finney’s Appeal, 9 P. F. Smith 400; Bank of Union v. Smalley 14 Amer. Dec. 530, and authorities collected in note.

      Henry Streeter, for said Gas Co., and P. P. assignee in bankruptcy.
    The contest in this case is between an attaching creditor and the general creditors of Chauncey S. Russell, represented by his assignee in bankruptcy. The latter had the right to set up the want of jurisdiction in issuing the attachment as to the 180 shares in the name of Lewis S. Russell without complying with the prerequisites required by the Act of 1836. Under the decision in Eby v. Guest, 8 W. N. C. 4.67, the original judgment was clearly void as to the 180 shares, and the court properly opened and corrected it.
   Mr. Justice Gordon

delivered the opinion of the court, March 21st 1881.

By virtue of an attachment-execution issued April 19th 1878, judgment was had against the defendants, who wore garnishees of Chauncey S. Russell, on the 5th of May 1879, upon the following special plea: “And the said Towanda Gas and Water Company, one of the defendant garnishees aforesaid, by II. Streeter, its president, says that since the filing of the company’s answers to the interrogatories exhibited to the said company in this case, the said defendant, Chauncey S. Russell, has acknowledged and stated to said company that he was the owner of one hundred and eighty (180) shares of the capital stock of said company, standing on the books of said company in the name of Lewis S. Russell, by exhibiting to the president of said company, duly assigned in blank, as follows, to wit (here follow the numbers of five certificates, embracing, in all, one hundred and eighty shares of stock). And the last aforesaid shares, together with the two shares of said stock, standing in the name of the said Ohauncey S. Russell, therefore making one hundred and eighty-two shares of said stock owned by said Ohauncey S. Russell in said company. And, therefore, the said company pleads nulla bona, except as to the aforesaid one hundred and eighty-two shares of said stock, so owned and held as aforesaid, by the said defendant, Ohauncey S. Russell.”

All this seems to be very plain and straightforward; and though one hundred and eighty shares of this stock stood in the name of Lewis S. Russell, yet, as the certificates had been duly assigned by him to Ohauncey, Ohauncey was the sole owner and claimant; there was no person, natural or artificial, to dispute his right. Nevertheless, the court, on the motion of Henry Streeter, assignee in bankruptcy of C. S. Russell, on the 27th of September 1880, opened this judgment, struck out the one hundred and eighty shares which formerly -were supposed to belong to L. S. Russell, an<[ re-entered judgment for tw.o shares only. To this action, the court was led, by the impression that the writ, having been issued without the affidavit and bail required by the 32d section of the Act of 1836, was void, and this for the reason that this stock stood on the books of the company in the name of Lewis S. Russell. In support of this conclusion, Eby v. Guest, 8 W. N. C. 467, was relied on. But neither the statute, nor the case cited, will bear any such construction. An examination of the statute will show that the affidavit and recognisance are required only when the stock is held in another name than that of the real owner, and that the recognisance is intended for the protection of the person or corporation claiming adversely to the alleged ownership of the defendant. But if there be no such claimant; if there is no one to dispute the defendant’s right, then, by the 34th section of said act, the writ may issue without either affidavit or recognisance. And an examination of Eby v. Guest, will show that the 32d section was held to apply in that case, because the attached stock was held and claimed as collateral security by the Enterprise, Saving, Loan and Building Association of Pottstown.

But who in this case claims the attached stock but Ohauncey S. Russell ? The garnishee admits that it has no claim, and it is agreed by the parties that at the time the writ was served Lewis S. Russell had assigned the certificates to Ohauncey. Hence he had no claim. Indeed, it is further admitted that he never was the real owner, but held only as trustee for Ohauncey. Certainly, then, if-these stocks did not belong to the defendant — if they were not held in his name, they were held by and belonged to no one. To what purpose, then, would have been an affidavit, since no one was disputing the defendant’s ownership ? and to what purpose a recognisance, seeing there was no adverse claimant ?

It being thus clear that the writ was properly issued under the 84th section of the Act of 1836, and as the court opened and reduced the judgment under a misapprehension of the law, it follows that the case must be restored to its original status."

The judgment of the court below of September 27th 1880 is now reversed and set aside, and the original judgment of. May 5th 1879 restored.


author: Mr. Justice Mercur

text:
    Dampf’s Appeal.
    1. A daughter of a decedent intestate, who was entitled to a distributive share of his estate, gave to the surviving members of a firm in which he had been a partner, a receipt for certain money, which she acknowledged to be in full for all claims by her against her father’s estate real and personal, except such amount as was to be paid to her after the death of his widow, and whereby she further released to said firm and decedent’s administrators all claims by her against them, except as aforesaid. The administrators filed an account, including, inter alia, the proceeds of certain real estate of decedent sold by them, to which account the daughter filed exceptions. Held, that by the terms of said receipt, the said daughter still retained an interest in her father’s real estate, which entitled her to a standing in court to dispute the correctness of the account filed by his administratoi’s.
    2. A married woman, by power of attorney not separately acknowledged, authorized and empowered her husband to do all necessary acts relative to her estate, to sell any part of the same, whether consisting of realty or personalty, to collect all money due her, receipt for the same etc., etc. Her husband, in pursuance of this authority, gave the receipt which has been above described ; it did not appear that any portion of the money receipted for ever reached the married woman’s hands. Held, that the transaction amounting to an assignment of the married woman’s interest in her father’s estate, the precise value of that interest being yet uncertain, the receipt ■was not binding upon the married woman, that it was not such an instrument as was contemplated and authorized by the Act of April 11th 1856, sect. 4, Pamph. L. 315, and that, therefore, upon the administrators of decedent subsequently filing their account, the married woman was not precluded from taking proper steps to test its correctness.
    March 10th and 11th 1881.
    Before Sharswood, C. J., Mercer, Gordon, Paxson, Trunkey, Sterrett and Greek, JJ.
    Appeal from the Orphans’ Court of Bradford county: Of January Term 1881, No. 16.
    This was an appeal by John Henry Dampf and Fanny P. Dampf, his wife, in right of said wife, from a decree of said court, dismissing her exceptions to the account of the administrators of Daniel E. Pomeroy, deceased, on the ground that she had no interest or standing in court, and confirming the said account.

      Daniel E. Pomeroy died in April 1872, intestate, leaving to survive him a widow and two children, of whom the appellant, Fanny P. Dampf, is one. Plis brother, Eleazar Pomeroy, and his father-in-law, Dummer Lilly, were appointed administrators of his estate. They filed their account May 16th 1879, to which Mrs. Dampf and her husband filed exceptions, and asked for the appointment of an auditor. After argument, the court refused to appoint an auditor. Upon the hearing of a rule to show cause why the exceptions should not be dismissed and the account finally confirmed, the following facts appeared: Daniel F. Pomeroy, at the time of his death, was a member of two firms, the one doing business at Troy, Bradford county, under the name of Pomeroy Brothers, and the other at Blossburg, Tioga county, under the name of Pomeroy Brothers & Smith. The surviving partners of the firm of Pomeroy Brothers are Horace Pomeroy and Samuel W. Pomeroy, and the same, with one Frederick E. Smith, are the surviving partners of the firm of Pomeroy Brothers & Smith. The business of both firms was banking; and in addition thereto, Pomeroy Brothers dealt largely in real estate, and were the owners of a considerable amount thereof at the time of his death.
    On the 11th of July 1874, Fanny P. Dampf gave to her husband the following letter of attorney, viz:
    “ Know all men by these presents, that I, Fanny P. Dampf, wife of John Henry Dampf, of Corning, Steuben county, New York, have made, constituted and appointed, and by these presents do maleé, constitute and appoint my husband, John Henry Dampf, my true and lawful attorney, for me and in my name, place and stead, to take charge, care and management of all my property, both real and personal, and to care for, manage and control the same, to collect all dividends, interest or other moneys at any time due or owing to me from any person or corporation, and give proper receipts, releases or discharges for the same, to sell and convey any part of my estate and execute and deliver all necessary papers, to transfer or convey the same under seal or otherwise, to endorse in my name all drafts and notes and in general to do all other acts or things which he may consider useful or necessary connected with my business, property and interests — giving and granting unto my said attorney, full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or would do if personally present, with full power of substitution and revocation, hereby ratifying and' confirming all that my said attorney, or his substitute, shall lawfully do or cause to be done by virtue thereof.

      In witness whereof, I have hereunto set my hand and seal, the 11th day of July, one thousand eight hundred and seventy-four.
    Fanny P. Dampf, [seal.]
    Sealed and delivered in presence of
    Q. W. Wellington.”
    United States of America,)
    State of New York, > ss:

    County of Steuben, y

    {seal of 1 Be it known that on the eleventh day of July, one not. publ. J thousand eight hundred and seventy-four, before me, personally appeared Fanny P. Dampf above named, who is to me known to be the person described in and who executed the above instrument, and she ácknowledged the execution thereof to be her free act and deed.
    In testimony whereof, I have hereunto subscribed my name, the day and year last above written.
    E. D. Mills, Notary Public
    Recorded in Bradford county, October 14th 1874.
    On October 7th 1874, the surviving partners of the firm of Pomeroy Bros., paid to Mr. Dampf, for his wife, the sum of $3855, and obtained the following receipt and release:
    $3855.
    Received, Troy, Pa., October 7th A. D. 1874, from Pomeroy Bros., three thousand eight hundred and fifty-five dollars, being in full settlement of all my claims of whatever kind or nature, against the estate of my deceased father, Daniel F. Pomeroy, both real and personal, with the exception of the amount to be paid me at the death of Mrs. II. B. Pomeroy, widow. And hereby release and discharge the said Pomeroy Bros, from all claim against them as surviving partners, and release and discharge Eleazar Pomeroy and Dummer Lilly, administrators of said D. F. Pomeroy, from any and all claim by me against them, excepting the said sum to be paid me at the death of said H. B. Pomeroy.
    Witness, my hand and- seal, at Troy, this day and year aforesaid.
    F. P. Dampf. [seal.]

      By her attorney in fact, J. II. Dampf.
    The administrators charged themselves in their account with the sum of $122,565.58, consisting of “inventory and appraisement” $94,664.74; excess over appraisement $3383.14; and “amount received from S. W. & H. Pomeroy for interest of D. F. Pomerov in the real estate of Pomeroy Bros., $24,517.70. They credited themselves, inter alia, with a payment to “ Pomeroy Bros., for F. P. Dampf $4411.47.” No objection was made to this credit in the exceptions filed by Mrs. Fanny P. Dampf, which exceptions averred, substantially, that the administrators had not charged themselves with the entire estate of the decedent, and that the debit side of the account should have been particularly itemized. In an affidavit filed with the exceptions, Mrs. Dampf averred “ that one-third of the personal estate of the decedent belongs to her as one of the heirs of said D. F. Pomeroy.” That she had made application, through her husband, to Pomeroy Bros., for the privilege of examining the books of the firm to ascertain the amount of her deceased father’s interest therein, but had been refused permission, and that the administrators have refused to compel the surviving partners of Pomeroy Bros, and Pomeroy Bros. & Smith to state an account of the assets of said partnerships.
    The court held that Mrs. Dampf, by her receipt to Pomeroy Brothers and release to the administrators of D. F. Pomeroy, executed by her husband as her attorney in fact, had settled for and parted with all her interest in her father’s estate, except what was to be paid at the death of the widow, and that she therefore had no standing in court to except to the administrators’ account. The court therefore, without going into the merits of the exceptions, entered a decree dismissing them and confirming the account.
    Mrs. Dampf and her husband took this appeal, assigning for error: (1) The ruling “that the receipt of October 7th 1874 wa-s a binding disposition of all of appellant’s rights and interest in the estate of her deceased father, and excluded her from a standing in court.” (2) The decree dismissing her exceptions without consideration of them and confirming the account.

      A. Ricketts and Rodney A. Mercur, for the appellants.
    The appellant, Mrs. Dampf, was denied a hearing on the matters averred in her exceptions, the court holding the release executed by her husband, under her power of attorney, conclusive. This was error on several grounds. Mrs. Dampf’s interest in that portion of the estate to be distributed at the death of the widow was expressly reserved in the release, and this left in her sufficient interest to except to the account. The receipt was given to the surviving partners of the firm of Pomeroy Brothers, who were trustees for Mrs. Dampf as to the partnership assets, and is not conclusive evidence of a settlement between them and their cestui que trust, a married woman. The release to the administrators, included in the receipt to the partners, expresses no consideration moving from the administrators. The paper is executed by a husband acting as attorney in fact for his wife, under a power of attorney from her, executed in New York, and not acknowledged according to the laws of Pennsylvania. A direct conveyance by her, so acknowledged, would be insufficient to pass her interest in real estate inherited from her father: Glidden v. Strupler, 2 P. F. Smith 400; Quinn’s Appeal, 5 Norris 447. Moreover, her husband is disabled, by the Act of 1848, from so transferring her property. As neither the letter of attorney nor the release were conclusive upon her, the court erred in holding that she had no standing in court.

      Davies and Sanderson (with whom were Carnochan & Hall, E. B. Parsons and Overton), for the appellees.
    The surviving partners of the firm of Pomeroy Brothers are not parties to this proceeding, and cannot be charged here with fraud in their settlement with Mrs. Dampf. The power of attorney, though defectively acknowledged as to realty, was sufficient to transfer personalty; and this administration account concerns only personalty and the proceeds of realty. A married woman may appoint her husband her agent. The Act of 1848 applies to sales and encumbrances, and not to the receipt of money by a husband as his wife’s agent for her use. The Act of April 11th 1856 expressly authorizes a married woman who is entitled to a distributive share of personalty or proceeds of realty of a decedent to sign, seal and deliver, either in person or by attorney, a refunding bond, and to execute all other acts which may lawfully be required by an administrator on payment of such share, with the same effect, for the purpose of binding her separate estate, as if she were sole and unmarried: Hinney v. Phillips, 14 Wright 382; Fryer v. Rishell, 3 Norris 521. Pomeroy Brothers, acting for the administrators, paid Mrs. Dampf, on October 4th 1874, $3855, in full settlement of her share of the estate, and the administrators reimbursed Pomeroy Brothers, May 5th 1877, with interest. Mrs. Dampf admits the regularity of this settlement by omitting to except to the credit of the payment to Pomeroy Brothers, and that stands confirmed and unexcepted to as a judgment of the court below.
   Mr. Justice Mercur

delivered the opinion of the court May 2d 1881.

The appellant is a daughter and heir of D. F. Pomeroy, deceased. The appellees are administrators of his estate. On her petition they were cited to file their account, and filed it. She filed exceptions thereto and applied for the appointment of an auditor. The court, being of opinion she had no interest in her father’s estate, refused her application, dismissed her exceptions without considering the matters therein charged, and confirmed the account. The only contention is whether all her interest in the estate was divested, so that she had no right to be heard. Such divestiture is claimed to result from a receipt given by her husband, and attorney in fact, under authority from her.

The main facts necessary to understand the case are these : At the time of his death, D. F. Pomeroy was associated with Horace Pomeroy and S. W.- Pomeroy, under the name of Pomeroy Brothers, as bankers at Troy. The firm of Pomeroy Brothers was also associated with Frederick E. Smith, under the name of Pomeroy Brothers & Smith, as bankers at Blossburg. The firm of Pomeroy Brothers, in addition to banking, was also engaged in farming and in buying and selling cattle. They owned a large amount of real estate. Whether it was held by them as tenants in common, or a portion as copartners, does not appear.

The estate of D. F. Pomeroy was of considerable magnitude. In the account filed, the administrators charged themselves with proceeds of real and personal estate amounting to $122,565.58 ; but no mention is therein made of decedent’s interest in the firm of Pomeroy Brothers & Smith. _

While the question of appointing an auditor was being held under advisement the appellees filed a receipt, to which the hand and seal of the appellant, by her attorney in fact, J. H. Dampf, was affixed. It is in these words, to wit:

“$3855. Received, Troy, Pa., October 7th, A. D. 1874, from Pomeroy Bros., three thousand eight hundred and fifty-five dollars, being in full settlement of all my claims of whatever kind or nature, against the estate of my deceased father, Daniel F. Pomeroy, both real and personal, with the exception of the amount to be paid me at the death of Mrs. H. B. Pomeroy, widow. And hereby release and discharge the said Pomeroy Bros., from all claim against them as surviving partners, and release and discharge Eleazer Pomeroy and Dummer Lilly, administrators of said D. F. Pomeroy, from any and all claim by me against them, excepting the said sum to be paid me at the death of said H. B. Pomeroy.”

The court thought the effect of this receipt, in connection with the affidavit of the appellant attached to the exceptions filed, showed she had no interest in the estate.

We will first consider the effect of the language of the receipt, assuming it to have been executed by authority of the appellant. The administrators were not a party to it. There is no averment that the money came from them or from the estate. It does purport to except out of the settlement made with Pomeroy Bros, so much of the estate as is to be paid to her on the death of Mrs. Pomeroy, the widow of her father. With the exception stated, it acknowledges the money paid to be in full of her claims against the estate of her father, and it releases and discharges the said Pomeroy Bros, from all claim against them as surviving partners. It close's by releasing the administrators from all claim by her against them, except as before excepted.

Thus it is shown the receipt does not profess to divest all her interest in the estate. It expressly reserves a claim against the administrators. It recognises the existence of real estate, and declares that on the death of the -widow the appellant shall be entitled to an additional sum. If a sale of the real estate should be made made by the administrators the appellant would be interested in that sale. The measure of her claim would bo affected by it. The account filed shows a sale of real estate was made, and the sum received therefor is one of the items. This exception in the receipt of itself shows a continuing interest of the appellant in the estate, and gives her a standing in court. Her right to be heard being thus established she may file all proper exceptions to meet the justice and equity of her case. The court thought the affidavit rather equivocal in averring her interest. It may be admitted that it is not drawn with commendable precision; yet we think there is a substantial averment of interest. In fact that she was a daughter and heir of the decedent was not questioned.

Additional reasons may be stated why this receipt shall not be given the conclusive effect claimed. She was a married woman. Her husband assumed to execute it under a power of attorney from her. The certificate of acknowledgment of that power is not made in the form required by the Act of Assembly to pass the real estate of a married woman. It merely certifies to her identity, and that “she acknowledged the execution thereof to be her free act and deed.” It does not declare that she was examined separate and apart from her husband; nor that she executed it without any coercion or compulsion from him; nor that it was either read to her, or that the contents thereof were made known to her. These facts should be substantially stated when the wife unites with her husband in conveying her lands to another. With stronger reason should they be required when the husband attempts to convey his wife’s land under a power of attorney to himself. A married -woman lacks capacity to convey her real estate otherwise than in the manner prescribed by the statute: Rumfelt v. Clemens, 10 Wright 455; Dunham v. Wright, 3 P. F. Smith 167; Brown v. Bennett, 25 Id. 420; Innes v. Templeton, Pitts. Leg. Jour., of October 20th 1880, p. 73. It is true this rule does not apply to a sale or transfer of a wife’s personal estate; nor to her receipt of money. The 4th section of the Act of 11th April 1856, Purd. Dig. 1009, declares, when a married woman shall be entitled to a legacy or to a distributive share of the personal estate, or of the proceeds of the real estate of a deceased person, it shall be competent for her, either in person or by attorney, to sign, seal and deliver a refunding bond, in pursuance of the Act of Assembly in such ca,se made and provided ; and also to execute all such other instruments, and to perform all such other acts as may by law be necessary to be done, or may be lawfully required by the executor or administrator upon the payment to her of the moneys to be distributed as aforesaid, with the same effect in binding her separate estate as if she was a feme sole. The object of this act is not to give a married woman general powers, nor the power to transact business generally, but to bind herself by such acts and instruments as may be necessary, or be lawfully required by the executors or administrators “upon the payment to her, of the money to be distributed.” It is to protect them and give them a legal voucher for what they have actually paid to her. This receipt was not given to the administrators. It does not recite the payment of any money by them. No account had been settled showing her distributive share. It shows no authority for Pomeroy Bros. to act for the administrators. In fact it was not treated as a voucher for money ’paid by them; but it appears to have been treated by them and by the court as an assignment to Pomeroy Bros, of her portion of the estate. This, as is held in Buchanan et al. v. Buchanan, 10 Wright 186, is the assumption of a power not intended to be given by the Act of 1856, cited. It does not appear in the case that any of the money mentioned in the receipt actually reached the hands of the appellant.

Some of the exceptions filed are very general; yet reasons are given therefor, which, if true, in a great measure excuse their generality. The exceptions raise questions of fact to be ascertained by evidence to be taken. Whenever exceptions to the account of an administrator are filed by one interested it is made the duty of the court, by the Act of 14th April 1835, Purd. Dig. 445, to decide whether the matters contested call for a reference to an auditor, and if they do, to appoint one or more. The court did not decide that the contested matters averred in the exceptions did not call for a reference, and it is very clear they did ; but that the appellant had no such standing in the case as to permit her to make the inquiry. In 'this the learned judge erred.

The ability of the appellant to sustain any of her exceptions, or to disprove the correctness of the account filed, are questions not now before us. We think she has a right to make the attempt.

Decree of final confirmation of the account reversed at the costs of the appellees; the exceptions are reinstated, and a procedendo awarded.

Gordon, J., dissented.


text:
    Packer et al. versus Schrader Mining and Manufacturing Co.
    1. An official surveyor, who, in making a survey pursuant to a warrant, adopts the lines of older or contemporaneous surveys, as the lines of the one upon which he is engaged, will not he deemed to have made a chamber survey.
    2. Where a return of survey is made and accepted, without a caveat, a prima facie presumption arises, that the survey was actually made upon the ground, but for twenty-one years after the return such presumption is capable of being rebutted by proof that the survey was but a chamber survey. After the lapse, however, of twenty-one years, the presumption that the survey was properly made on the ground becomes fixed and absolute, and cannot he rebutted by the evidence of any fact, however obvious.
    3. Ormsby v. Ihmsen, 10 Casey 462, followed and approved.
    4. When the regularity of the survey is by this means legally fixed and absolute, the only question remaining for a.jury is to determine whether such lines, adjoinders, or other marks, can be found upon the ground, as will enable them to determine with reasonable certainty the location of the tract of land in dispute.
    5. Where in such case the tract, concerning the location of which the question has been raised, and another tract were located by the same surveyor, the return of survey of the former describing it as having been warranted and surveyed before the latter, but the return of survey of the latter having been made before that of the former, the adoption in the return of survey of the former of the latter tract as an adjoinder can have no other eflfect than to aid in the location of the former tract.
    March 11th 1881.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Bradford county: Of July Term 1880, No. 41.
    Trespass quare clausum fregit by E. A. Packer et al. against The Schrader Mining & Manufacturing Company et al. for timber felled and converted in 1867, 1868 and 1869, upon part of a tract of unseated land in the warrantee name of George Moore. The defendants pleaded not guilty and liberum tenementum.

    On the trial, before Morrow P. J., the plaintiffs showed the following title: April 27th 1792, warrant to George Moore 400 acres of land adjoining or near to lands this day granted to Samuel Temple in the county of Northumberland. Surveyed 21st of November 1792. Returned, endorsed, &c., January 8th 1795. February 24th 1795, patent, Commonwealth of Pennsylvania to George Moore for a certain lot of land called “ Greenfield,” situate on waters of Towanda creek, Luzerne county, 375 acres and allowance of six per cent, for roads; surveyed in pursuance of warrant of April 27th 1792, to Samuel Wallace, in consideration of moneys paid by George Moore. The plaintiffs deduced title to themselves by mesne conveyances, in which the tract was described, in 1839, as follows: “ Situate on the waters of Towanda creek, Luzerne county, beginning at a post, thence by land of Joseph Bets and Henry Bets, north 29° east, 318 perches to a hemlock, thence by vacant .lands, north 61° west, 200 .perches to a post, thence by the same and land of General Bradhead, south 29° west, 318 perches to a post, and thence by land of Samuel Cooley, south 61° east, 200 perches to the place of beginning, containing 375 acres and an allowance of six per cent, for roads.” The plaintiffs proved the payment , of taxes and redemption from tax sales of the George Moore tract.
    The defendants claimed that the land on which the alleged trespass was committed was part of a tract of unseated land in the warrantee name of Andrew Tybout, containing 409 acres, to which, it was admitted the defendants had title. There is an interference of about 250 acres between the Moore and Tybout tracts. The defendants claimed that the George Moore tract was never surveyed on the ground, but was a chamber survey. They put in evidence warrant, February 15th 1794, to Andrew Tybout; certified copy of return of survey, surveyed March 24th 1794, survey returned June 25th 1794. Also, patent, June 27th 1794, to Daniel Brodhead, granted in consideration of moneys paid by Tybout for tract described as follows : “ Beginning at the hemlock sapling, thence by land of Robert Erwin, north 40° west, 100 perches to a post, thence by land of John Barron, Jr., north 29-J° east, 190 perches to a post, thence by land of William Gobett, south 61° east, 320 perches to a hemlock, thence by lands of Drinker & Co., south 29J° west, 220 perches west to a sugar, and thence by old surveys, north 61° west, 225 perches to the beginning, containing 409£ acres and allowance of six per cent, for roads.”
    The following plan ehow~ the interference:

      It was admitted that the taxes were paid upon the Tybout tract by the defendants and their predecessors in title, from the organization of Bradford county to the beginning of this suit. Much evidence was given on both sides on the question whether the George Moore tract was actually surveyed and marked on the ground in 1792, or whether it was a chamber survey. Thp evidence showed that the Tybout tract was actually surveyed on the ground in 1794. It did not appear that any caveat had been filed against the location of the George Moore tract, or that the question of its location, or of its interference with the Tybout tract, had been raised by any legal proceedings prior to the bringing of this suit.
    The court submitted to the jury, as the principal question of title, the question whether the George Moore survey was a chamber survey, and charged, inter alia, as follow’s:

      “ If there was a survey under the Moore warrant before the 24th March 1794, the time the Tybout was surveyed, the title under the Moore patent dates back to the date of the warrant, but if it was not surveyed until after the Tybout was surveyed, then the title to the land was in the defendant. I mean by survey, actual survey on the ground. It was the duty of the deputy surveyor to go upon the ground, run and mark the lines, and establish the corners. In many instances, he neglected his duty and omitted to do this, and made a draft in his office of a pretended survey, and returned it into the land office. These surveys, so returned, but never actually made on the ground, are commonly called ‘ chamber surveys.’ It is claimed on the part of the defendant, that the survey of the Moore warrant was a chamber survey. This allegation presents the principal question as to title; for I think the undisputed evidence shows that the Tybout was located by actual survey in the year 1794. Had the Moore been surveyed before that time ? To determine this question you must consider al'l the evidence bearing upon it. I think there is no dispute but that the line for a long distance, both north and south of the hqmlock corner, was run upon the ground in the year 1792. It is not enough that he was there to survey other warrants that adjoin it. Was he there, and did he survey the Moore warrant ? * * *
    “ The evidence shows that the Joseph Betz and Henry Betz are on the east. Both were warranted in 1793, and surveyed July 4th 1793. This fact may bear upon questions as to the date of the survey of the line south from the hemlock, and of the marks found upon that corner; for it may be difficult to say where a line was surveyed July 4th 1793 — whether it was surveyed in 1792 or 1793. The official copy of the Moore calls for the Betz on its east. This may be the mistake of the draughtsman at the land office; but is it his mistake ? Has it not a tendency to show a chamber survey— one made after the Betz had been surveyed and returned to the land office ? It (George Moore) calls for vacant land on the north. The Gobett tract is there, but it was not warranted until 1794. The call, therefore, is correct, and ought it not to have called for vacant land on the east if it had been actually surveyed November 21st 1792? It was vacant land on its east November 21st 1792. The Betz warrants had not then been issued, and unless the draughtsman at the land office made a mistake, they could not have been put on as calls, because they did not then exist.
    “Again, it is proper for the jury to take in consideration the course of the streams as indicated by the official draft, to determine whether the Moore was surveyed in 1792. (The attention of the jury was called to the water-courses as indicated on the different maps, and also where the Schrader creek crossed the west line of the Moore.) To determine whether the Moore tract was actually surveyed in 1792, the original marks on the ground, if any, are the strongest and best evidence. If it is doubtful whether the marks were made in at that time, then the jury should consider the calls watercourses. If the official drafts show a correct location of the watercourses, it is evidence to show actual survey. If they are not so laid down, it is evidence which may have a tendency to show that there was no actual survey. If, after examining this evidence, there is still doubt, it is proper to consider the old maps in evidence — Broadhead’s map of 1799, and Elower’s map of 1828. It is proper to consider these maps as parts of the evidence. They show where the Tybout was located then, to wit, 1799 and 1828. The Moore tract is not indicated on either map, except as south of the Tybout.
    “ If, after considering all the evidence, you find that the George Moore was not surveyed in 1792, and find that Tybout was surveyed in 1794, and before Moore was surveyed, that ends the case, and your verdict should be for the defendants.”
    Yerdict and judgment for the defendants. The plaintiffs took this writ of error, assigning for error the charge of the court as above quoted.

      D. C. De Witt, for plaintiffs in error.

      Sanderson (with whom was Overton and Davies & Carnachan), for the defendants in error.
   Mr. Justice Gordon

delivered the opinion of the court, May 2d 1881.

The question involved in this case is a very simple one — one of location only. The Moore survey was older than the Tybout. It was regularly returned and accepted, and was also patented. If, therefore, there were any marks found on the ground, or any adjoinders called for by the survey, as returned to the land office, by which the position of the tract coaid bo ascertained, this controversy ought to have been determined by the jury in favor of the owners of this survey.

We repeat, the question was one simply of the location of the Moore warrant. Was there a corner or line found on the ground which was a corner or line of this tract ? If so, the question was resolved; for from either the location of the warrant could be readily and certainly determined by simply following the courses and distances called for by the survey. So, if there were known adjoinders, the location could, in like maimer, easily be established.

But the court below, departing from this simple proposition, erred in two principal points : 1. In submitting to the jury the question whether or not the Moore survey was a chamber survey; 2. In saying to the jury that it was not enough that the surveyor was on the ground to survey adjoining warrants if he was not there to survey the Moore warrant. This, of course, meant that he could not adopt the lines of older or contemporaneous surveys as the .lines of the Moore tract. But in Parshall v. Jones, 5 P. F. Smith 153, it was said, following McRhea v. Plummer, 1 Binn. 227, and Caul v. Spring, 2 Watts 390, that the lines of older surveys may be adopted for a later warrant, without re-running or re-marking them, and that such a survey is not a chamber survey. To us, indeed, it seems strange that a proposition so obvious and reasonable should ever have been doubted; for as it is admittedly improper to re-mark old lines when adopted for a new survey, why should they be re-run ? Certainly, for the purposes of location, this would be an unnecessary labor, and to us no reason occurs for the enforcement of such a work, except to compel the deputy surveyor to earn his fees.

A chamber survey is one that has never been made upon the ground, but where a survey has been returned and accepted without a caveat, the presumption, after twenty-one years, as was held in Ormsby v. Ihmsen, 10 Casey 462, is juris et de jure that it was made on the ground. In other words, this presumption is one that no fact, however obvious, can rebut. In the case just cited the court below, whilst holding that, after the period mentioned, the survey, returned by the proper officer, was by law presumed to have been run upon the ground, nevertheless instructed the jury that this presumption might be rebutted by positive proof. This was held to be error; that such was not the nature of the presumption attending a survey returned without objection for more than twenty-one years; that the presumption was absolute in its character — a legal conclusion. A like result was arrived at in the cases of Lambourn v. Hartswick and Mock v. Astley, 13 S. & R. 113; 382. Justice Duncan, who delivered the opinions in both these cases, in substance said that, prima facie, a survey was made as returned, and that it was the business of the adverse party to disprove it; but that, where time, analogous to the Statute of Limitations, had run, where the owner had continued to pay the public taxes, and where there had been no caveat, a presumption of law ought to arise in favor of the regularity of the survey.

Following these cases, Huston, J., in Norris v. Hamilton, 7 Watts 91, held “that after a survey had been returned more than twenty-one years, the presumption that it had been legally made became a violent presumption, or as is said in the last case, not to be contradicted.” The same idea is repeated in Bellas v. Cleaver, 4 Wright 267, per Thompson, J.

How, then, in view of these authorities, does the case in hand stand ? The Moore warrant purported to have been surveyed on the 21st of November 1792, and was duly returned, accepted and patented; this final act of the land office occurring on the 24th of February 1795. Then, for twenty-one years after the date of this survey, the prima- facie presumption was in favor of its correctness. Nevertheless, within that time, this presumption was prima facie only, and might have been rebutted by those interested in the interfering Tybout survey, by a caveat or in an action of ejectment. Neglecting this, allowing the survey to remain unquestioned for the period above mentioned, the presumption became absolute and was no longer open to attack.

The regularity of the survey being thus legally fixed and absolute, it but remains for a jury to determine whether, upon the ground, such lines, adjoinders or other marks can be found as will, to a reasonable certainty, determine the location of the plaintiff’s claim.

Finally, as the Moore and Betz warrants were located by the same surveyor, and as the former was not returned until after the survey of the latter, the adoption of the junior warrants, as adjoinders of the senior survey, ought to have no other effect than to help in the location of the older warrant.

The judgment of the court below is reversed, and a new venire is ordered.