text:
    Milligan’s Appeal. Agnew’s Estate.
    1. In partition of real estate in which a minor ha,s an interest, a guardian who has no funds of the minor is not bound to take real estate charged with an owelty equal to the value of the purpart, even though it be to the minor’s advantage that he should do so.
    2. In proceedings in partition, A., a minor, and her guardian’s wife had equal interests, the minor, as represeriting an older child, having the first right to accept or refuse to take real estate. A purpart was allotted to the wife at what was then a fair valuation, and the minor’s share was charged upon this purpart as owelty. The guardian at that time had no funds to pay the owelty. There was no pretence of fraud in the proceedings. The real estate allotted to the wife increased very greatly in value: Held, that this fact did not in anyway impair the wife’s title to the real estate.
    3. The guardian in settling his account charged himself with the amount of this owelty, with interest, and his account was confirmed: Held,, that the proceedings in partition could not be inquired into in a proceeding for a review of the guardian’s account.
    4. The record in the partition did not'-show in express terms that the guardian declined to take real estate for his ward, but it did show notice to the parties to appear and accept or refuse, that the minor did appear by her guardian, that all the shares were allotted to other heirs, and that the minor’s share was charged as owelty: Held, that this was enough to show that the guardian declined to take real estate; and that there was no evidence to impair the title of the guardian’s wife to the purpart allotted to her.
    5. Where a guardian, who stood in loco parentis to his ward, improperly charged her with her support and education, 'but the account was fully explained to her two years after her majority, and all the facts fully known to her at that time; the minor took a note for the balance due her, on which she received partial payments during several years; the account was duly confirmed by the Orphans’ Court, and the petition for a review did not allege any new evidence to impugn the account: Held, that there was no evidence to support a petition for a review.
    6. In the absence of positive evidence that valuable bank stocks bought by a guardian while he had funds of his ward uninvested in his hands were bought with his ward’s money, the minor, after attaining her majority, is not entitled to elect to take the stocks, instead of money.
    7. Where a guardian, from 1850 to 1857, received $2746 of his ward’s money in small amounts which he mixed with his own money and never invested in her name, and in 1856 and 1857, invested $1900 in valuable bank stocks, he himself being at that time a man of means and his wife having money of her own, and there was no further evidence to trace the ward’s money into these stocks : I7eM,that the finding of an auditor that the ward’s money did not go into these stocks was not unwarranted by the facts in the case, and that the minor could not elect to take the stocks .instead of money.
    October 9th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.

      Appeal from a decree of the Orphans’ Court of Allegheny county: Of October and November Term 1875, No. 277.
    These were proceedings begun in the court below by Mary E. Milligan (formerly Agnew) and her husband, for a review of the account of Dr. James Carothers, her former guardian.
    The grounds upon which the review was asked were these: (1) Because the guardian, in the partition of certain real estate in which his ward and his wife were equally interested, had elected to take real estate for his wife (which afterwards proved to be very valuable) and had taken his ward’s share of the estate in money; (2) because, though standing in loco parentis to his ward, he had charged her in his account with the amount expended for her support and maintenance ; and (3) because he mingled his ward’s money with his own in the purchase of bank stocks, which increased greatly in value and yielded more than six per cent, interest, and had accounted only for the principal of the minor’s estate with legal interest. The original and supplemental petitions filed were referred to an auditor who reported substantially these facts.
    The petitioner was the only child of Mary Agnew (formerly Graham); the latter died in 1843, and soon after her death the ' petitioner, then but a few weeks old, was taken to the home of her mother’s younger sister, Mrs. Carothers, wife of Dr. Carothers, and lived there until some time after she had attained her majority and until she was married; she was brought up by and treated by her aunt and her guardian in all respects as their own child. In 1846 James Graham, the grandfather of the petitioner, died intestate, seised of a farm in Allegheny county, in which Mary Agnew and Mrs. Carothers were each entitled to an eighth interest. Proceedings for the partition of this real estate were begun in 1849 (Dr. Carothers having in the meantime been appointed guardian of the petitioner), and the inquest made a return dividing the estate into four purparts, of which the lowest in value was appraised at $3538. Mary Agnew’s interest was valued at $2169. Dr. 'Carothers and his wife elected to take a purpart valued at $4500, and one was accordingly set apart to them, in October 1849, charged with the payment of $2169 owelty of partition to Mary Agnew as her entire share of the estate. Up to this time no money or property of the ward had come into the hands of her guardian. The purpart set apart to Mrs. Carothers turned out to be coal lands, and became very valuable. There was no evidence that the partition was not fairly conducted. The record of the proceedings in partition did not show in express terms that the guardian declined to take for his ward; it did however show notice to the parties interested to appear on a certain day and accept or refuse the real estate at the valuation; that the guardian was present on that day, that all the shares were allotted to other heirs, and that the petitioner’s share was ordered to be paid in money.

      The petitioner reached her majority in July 1864. The account of her guardian was filed in September 1866; in- it the accountant charged himself, among other things, with $2169 and simple interest thereon, and claimed credit for over $3000, paid for the minor’s support and education during' her entire minority. This account was fully explained to the minor before it was filed, so that she understood clearly that it' charged hpr for her support and education. There was some evidence that her relations to her aunt and guardian made it impolitic for her '[o object to the account as stated, but there was nothing to show that any improper influence was used in any way. The petitioner took a note for the balance due her, and signed a receipt therefor. Payments were made to her on this note at various times as late as 1870. Dr. Carothers died in April 1867. Mary Agnew was married some months later. At the filing of the first petition the purpart allotted to Mrs. Carothers was still in her possession.
    With regard to the third ground for a review, the evidence showed that Dr. Carothers never kept a bank account, except for a short time before 1860, and that he kept-no separate account of his ward’s money. The owelty charged in the partition was never paid in money, but remained a charge upon Mrs. Carothers’s share until the settlement of the account, and was then included in the note given to the petitioner. From January 1st 1850 to January 1st 1857, the guardian received other money of the minor to the amount of $2746. In May 1856, Dr. Carothers, having then in hand $1750 of the trust money, invested $900 in hank stock in his own name, and in June 1857, having in hand $2746 of the trust funds, he invested $1000 in bank stocks in his own name. It appeared, however, that at this time he was the owner of valuable real estate, and was a physician in active practice, and further, that both he and his wife had money of their own sufficient in amount to make these investments. He did not appear ever to have invested any of the trust funds in his ward’s name. Beyond the above facts there was no evidence given to trace the minor’s money into these investments. The auditor was of opinion that there was no evidence to show that any of the minor’s money had been used in the purchase of the stocks claimed by the petitioners.
    The first petition for a review was filed in December 1867. It set forth the proceedings in partition; that the petitioner was entitled to choose or refuse a purpart before Mrs. Carothers, being the only child of an older sister; and that the guardian, in electing to take a purpart for his wife, had committed a fraud upon his ward, and prayed a review of the account on this ground. A supplemental petition, filed in 1868, set forth that Dr. Carothers had been legally disqualified to act for his ward in the proceedings in partition, and therefore she had not been in fact represented; further, that Dr. Carothers had elected to take a purpart for his wife, though the first choice was in his ward, without having first refused a purpart for the latter of record, all of which was a fraud upon the ward, and prayed that the petitioner, not having been represented in the partition, should be allowed to come into court and make choice of or refuse the purpart taken by Mrs. Carothers at its valuation. Neither of these petitions prayed to surcharge the accountant on the ground that his choice of a purpart enured to his ward. A third petition, filed the same day, was based upon the charges for support and maintenance of the ward; and a fourth petition, filed April 1871, prayed a transfer of the above-mentioned stocks and an account of the dividends received from them.
    Upon these facts, the auditor was of opinion that the petitioners were not entitled to a review; the court below confirmed the report, and the petitioners took this appeal.

      Hampton .$• Dalzell, for the appellants. —
    The guardian, in the partition, became personally liable for the owelty, and to that extent became the real owner of the purpart allotted to his wife. He also took a life estate under his wife: Kean v. Ridgway, 16 S. & R. 63; Snevily v. Wagner, 8 Barr 396. He therefore acted for himself and not for his ward, and his account should be surcharged: Hughes’s Appeal, 6 Casey 471; Keech v. Sandford, 1 Lead. Cas. in Eq. 48; Galbraith v. Elder, 8 Watts 93. Dr. Carothers was disabled from acting for his ward; therefore she has never had a day in court; her title has not- been divested: Richards v. Rote, 18 P. F. Smith 248. The auditor found that the guardian stood in loco parentis to his ward; he cannot charge for her support: Lantz v. Fry, 7 Harris 366. It was admitted that the guardian mixed the minor’s funds with his own, and did not invest them in her name. It was his duty to mark her property so that it could be distinguished, and as he did not do so, she may elect to take any investments that could have been bought with her money: Hart v. Ten Eyck, 2 Johns. Ch. 103: Lupton v. White, 15 Vesey 439; Lord Chedworth v. Edwards, 8 Id. 48; Fellows v. Owen, 2 Id. 516; Pennell v. Deffell, 23 E. L. & E. 460; Lukenss’ Appeal, 7 W. & S. 48; Morris v. Wallace, 3 Barr 319; Stanley’s Appeal, 8 Id. 432; Royer’s Appeal, 1 Jones 36; Norris’s Appeal, 21 P. F. Smith 106.
    The petitioner was not estopped by her receipt to her guardian ; for when she gave it ■ she did not have a perfect knowledge of her affairs: Wills’s Appeal, 10 Harris 332; Elliot v. Elliot, 5 Binn. 8; Eberts v. Eberts, 5 P. F. Smith 119 ; Kinter’s Appeal, 12 Id. 318; Stanley’s Appeal, supra. Receiving payments on the note did not raise an estoppel; she was entitled to receive the amount of the note at least: Wills’s Appeal, supra.

    In cases of private settlement with a minor just come of age, and of merely formal settlements in court, liberality ought to be exercised in allowing a review: Kinter’s Appeal, supra. A bill for review is the proper remedy to surcharge the fraudulent omission of assets received: McNeel’s Estate, 18 P. F. Smith 412. The omission to charge himself with the value of the land which he took as his ward’s trustee was a fraud on her, and so averred in the petition. The charge for maintenance was an error in law which is reviewable. The question ofi-Jhe bank stock arose upon after-discovered evidence. Finally,'the case is within Kinter’s Appeal, supra; Russell’s Appeal, 10 Casey 258, and Whelen’s Appeal, 20 P. F. Smith 425.

      Slagle Wiley, for the appellee. —
    If the proceedings in partition were void as to Mrs. Carothers they were void in toto. Mrs. Carothers’s title cannot be impaired in these proceedings, as she is not in court: Herr v. Herr, 5 Barr 428; Snevily v. Wagner, 8 Id. 396. Even if there had been fraud it can only be shown in direct proceedings against her: Dundas’s Appeal, 14 P. F. Smith 331. Besides, there was no prayer for a surcharge in the petitions. There was no evidence of fraud; and the burden of showing fraud was on the petitioner: Yeager’s Appeal, 10 Casey 176. The increase in value of the purpart is not proof of fraud: Bowman’s Appeal, 3 Watts 369. The decree of the court in the partition raises a presumption that every requisite was complied with: Neeld’s Estate, 20 P. F. Smith 113. Dr. Carothers had no funds to pay owelty with and was not bound to advance money: Chorpenning’s Appeal, 8 Casey 316. Again, even if the guardian had committed a fraud, his wife’s title would not be impaired: Totten’s Appeal, 10 Wright 303; Armstrong’s Appeal, 18 P. F. Smith 411. There was evidence to show that the guardian always kept an account of his ward’s maintenance and intended to charge her with it. Norris’s Appeal, supra, has the qualification, that the trust money can fairly be traced into the investment. We are not obliged in these proceedings to show that her money did not go into .the stocks: Yeager’s Appeal, supra; this would be hard to do, after many years and when the accountant is dead. In this court the only question is whether the petitioner is entitled to a review of right; that can only be for. errors in law on the record, and for after-discovered evidence: Kinter’s Appeal, supra; neither ground exists here.
   Mr. Justice Mercur

delivered the opinion of the court, January 2d 1877.

This was an application for the review of a guardianship account duly confirmed by the Orphans’ Court.

In September 1866 - Dr. James Carothers filed his account as guardian of Mary E. Agnew (now Milligan), the appellant. At the next December Term it was ■ duly confirmed. In April of the next year, Dr. Carothers died. Some three months thereafter the appellant married. On the 28th of December following, the appellant presented her first petition, asking for a review of the account. She followed this with three supplemental petitions, the last in April 1871.

The substantial grounds of complaint and prayers for relief may be considered in three parts:—

T. The omission of the guardian to elect to talce for the appellant a purpart of the real estate, at the time of the partition thereof, and therefore she asked to be allowed to come into court and make choice of or refuse said purpart at its valuation.

2. That the guardian had improperly charged for her support, maintenance and education, and that all those items should be stricken from the account.

'3. That the guardian mingled his ward’s money with his own in the purchase of bank stocks, and that the appellant is entitled to receive said stocks and their dividends, and not simply the money used in their purchase.

We will consider them in the order stated:—

1. The whole land partitioned was valued by the inquest at $17,352.15.' The appellant and the wife of Dr. Carothers were each entitled to one-eighth interest therein. It was divided into four purparts. The least valuable was valued at $3538. The appellant’s share was of the value of $2169 only. The guardian had no funds of the appellant with which he could pay owelty. If he had elected to take a purpart for her, he would have been obliged to advance, of his own money, a sum nearly equal to the whole value of the appellant’s share. This he was certainly not required to do. Had he done so, he would have incurred the risk of having the legality of his act questioned by his ward on her arriving at full age. He therefore took no purpart for the appellant. He did, however, in right of his ydfe elect to take a purpart valued at over $4500. This he.had a perfect right to do. The rights of his wife were not to suffer from the fact that her husband was guardian of the appellant. The wife was not thereby compelled to decline taking a purpart, nor was she obliged to take jointly with the appellant or any other heir. There is no averment that the partition was not honestly and fairly made, nor that any purpart-was appraised at less than its then market value. The partition was confirmed and the allotment made to Mrs. Carothers in October 1849. The court then ordered her and her husband to pay to his said ward the said sum of $2169, with interest from that date. He was charged Avith this sum in his final account, which was duly confirmed. A title thus acquired by Mrs. Carothers, in the absence of any fraud, cannot be divested or impaired by the discovery, several years afterwards, that the surface of the land was underlaid Avith coal.

It is further urged, that inasmuch as the record does not aver in express terms, that the guardian declined to take for his ward, it still remains open as to her, and she may noAV come in and elect.

The record, however, does show notice to “ the heirs and others interested in the estate” to be and appear on a day named, and accept or refuse to accept the real estate at the valuation, or sIioav cause why the same should' not be sold. It shows that on the day designated the heirs and representatives appeared, the appellant was there by her guardian. All the purparts were allotted. It shows that all of them were allotted to other heirs, and the share of the appellant was ordered to be paid in money. It does, therefore, substantially and sufficiently appear that the guardian declined to take any purpart for his said ward. There is no evidence in the case to impair the title acquired by Mrs. Carothers, or calculated to show any bad faith or fraudulent conduct of the guardian in the whole transaction.

2. If the question of the charges for the support, maintenance and education of the ward was now open, there is great force in the objection to their allowance. But the question is not now an open one. All the items complained of were distinctly and specifically set forth in the .account filed, and it was duly confirmed by the Orphans’ Court. This is a petition for a review of that account. It is well settled that an account thus settled and confirmed can only be reviewed as a matter of right, for error of law apparent on the face of the record, or for new matter whichfhas arisen since the decree. As a matter of grace a review may, be granted for new proof, discovered after the decree, which proof could not possibly have been used at the time when the decree was made: Story’s Eq., § 404; Riddle’s Estate, 7 Harris 431; Russell’s Administrator’s Appeal, 10 Casey 258; Hartman’s Appeal, 12 Id. 70.

In the case we are now considering it is not claimed that any error of law appears on the face of the record, nor is it shown that new matter has arisen since the decree, or that all the proof now offered to invalidate the decree was not known and accessible to the appellant when it was made.

The answer to the petition, inter alia, avers:—

1. That the accounts containing all these' credits were well known to said ward, having been .examined before and after she attained her majority, and she made no objection thereto.

2. No objection was made to these credits in her first petition, nor has she specified in her supplemental petition her ignorance that the guardian claimed such credits.

3. She does not.aver that they are not correct in amount, nor that they were not duly and properly expended in the. maintenance and education of said ward.

The master, to whom the case was referred to ascertain the facts and give his conclusions, reported, showing that when the guardian’s account was made, the appellant was more than twenty-three years of age; that, she was present when the .items were “ discussed and considered during several evenings; that she was aware of the fact that a charge for boarding and clothing would probably be made, and the only question, if made,, was as to how much the charge •would be.” She was advised that it was a final settlement between herself and her guardian. When the account was fully prepared it was presented to her. He therefore found, “ that the facts relied upon by petitioner for a review of the account were fully known at the time of the filing of the account, and not within that class of eases allowing a review for new matter discovered after the decree.”

It will be observed that the effort is not to surcharge the guardian with money or property withheld or omitted from his final account, but to strike therefrom certain credits distinctly claimed, stated in the account, and confirmed by the court. The evidence was wholly insufficient for that purpose. All the facts on which the appellant relies to attack the decree were as well known to her when the account was filed, as when she petitioned for the review. She received payments to apply on the account after its confirmation, and made no application for a review until after the death of her guardian.

3. The allegation that the guardian purchased stocks with his ward’s money is not sustained by the evidence. The master states the law correctly. ■ He says : “ If the proofs establish the fact that these stocks were purchased with the money of the ward she would certainly be entitled to make her election to take them in lieu of money,” but he adds, “ the evidence fails to show that any of her money was used for that purpose.” An examination of the testimony does not show his finding to be unwarranted. He therefore concluded, “that under the law such a case had-not been presented as entitles the party to a rehearing of the account.” Exceptions having been filed to the report, they were dismissed, and the report confirmed finally by the court. We see no sufficient cause for disturbing the decree.

Therefore, decree affirmed and appeal dismissed at the costs of the appellant.


source: Caselaw Access Project

author: Mr. Chief Justice Agnew

license: Public Domain

text:
    The Commmonwealth ex rel. The Attorney-General versus Kilgore.
    1. The word “and” in sect. 26 of the schedule to the constitution of 1873 cannot be read “ or.”
    2. It is only one in office at the time the new constitution went into effect and whose term continued till after the first election thereunder, that can hold office till the expiration of his term under sect. 26 of the schedule.
    3. K. was elected county treasurer in 1871, his term of office to expire on the first Monday of March.1874; he was re-elected in October 1873, to hold office from the first Monday in March 1874: Held, that when the. new constitution went into effect, on January 1st 1874, K. was in office as of hisjfo-s¿ term, and therefore he could not hold office under his re-election till the expiration of his second term, by virtue of sect. 26 of the schedule.
    October 10th 1876.
    Before Ágnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.

      Error to the Common Pleas, No. 1, of Allegheny county: Of October and November .Term 1876, No. 146.
    This was a quo warranto against Samuel Kilgore, commanding him to show by what authority he claimed to exercise the office of treasurer of Allegheny county.
    The defendant’s answer set forth that in October' 1871 he was elected county treasurer for a term of two years, to compute from the first Monday of March 1872 (according to the provisions of a special act relating to the office of the treasurer of Allegheny county, approved March 29th 1867); that in October 1873 he was re-elected for another term of two years, to compute from the first Monday of March 1874; that by virtue of his said election and his commission he was entitled to hold his office until his successor had been duly qualified, and that no such successor had been so qualified, &c.; and therefore that he was entitled to hold his office until the first Monday of January. 1877, and until his successor should be duly qualified..
    ■ The Commonwealth filed a replication, setting forth that at the general election held November 1875 James Gr. Murray was elected county treasurer; that he had given bonds, had taken the oath of office and was duly commissioned by the governor to hold the office for three years from the first Monday of January 1876; and that the defendant’s term of office had expired. It also denied that the defendant was entitled to hold the office till the first Monday of January 1877.
    To this replication the defendant filed a rejoinder alleging that the election held in November 1875 was unauthorized by law, and therefore illegal and void, and that Murray was ineligible to the office of county treasurer at the time of that election, because he then held the office of county commissioner,
    To this rejoinder the Commonwealth filed a general demurrer.
    The court below entered judgment on this demurrer for the defendant, on the ground that Murray was ineligible to the office. No written opinion was filed.
    The Commonwealth took this writ of error, assigning for error the judgment of the court in overruling the demurrer.
    The Attorney-General, Gr. Shir as, Jr., and M. W. Acheson, for the Commonwealth. —
    At the time when the new constitution went into effect Kilgore was in office, as of his first term, and sect. 26 of the schedule did not apply to his case. Kilgore cannot raise here the question of Murray’s ineligibility: Commonwealth v. Cluley, 6 P. F. Smith 270.

      Gr. P. Hamilton and A. M. Brown, contra.
   Mr. Chief Justice Agnew

delivered the opinion of the court, October 23d 1876.

The position of the counsel of Samuel Kilgore is, that he was in office, as the treasurer of Allegheny county, at the time of the adoption of the new constitution, and at the first election under it; and was therefore, under the 26th section of the schedule, continued in office from the first Monday of March 1874 for two years ending March 1876, and thereafter until his successor should be duly qualified. This would continue his term of the office until the first Monday of January 1877. To test the correctness of this position we must examine the facts before we can apply the provision of the schedule. Kilgore was first elected at the general election of 1871, and, according to the law relating to Allegheny county, his term of two years began on the first Monday of March 1872, and consequently expired at the same time in 1874. He was, therefore, in office at the time of the adoption of the new constitution, under his election in 1871, and not under the election of 1873. But the new constitution took effect, according to the schedule, on the first day of January 1874, before his second term began, and by the 2d section of the 14th article, county treasurers, as county officers, “ shall be elected at the' general elections and hold their offices for the term of three years, beginning on the first Monday of January next after their election, and until their successors shall be duly quali-, fied; all vacancies not otherwise provided for shall be filled in such manner as may be provided by law.” The term of Kilgore having expired on, the first Monday of March 1874, after the constitution took effect, it is evident the office became open to the operation of the new constitution, before the first general election under it, in 1874, when an election to fill the office under the new constitution could be held, unless we read the word “ and ” or in the 26th section of the schedule. The words of that section are these: “ All persons in office in this Commonwealth at the time of the adoption of this constitution, and at the first election under it, shall hold their respective offices until the term for which they have been elected or appointed shall expire, and until their successors shall be duly qualified, unless otherwise provided in this constitution. ” That and may be read or when it is evident that the intent requires it is admitted; but that it ought not to be so read in this instance is manifest. No necessary intent requires it. The constitution is the primordial act of the people, whose sovereign will must take effect when it can, while the schedule is not intended to supersede or . supplant it, but to adapt it to the new order of things. But for the schedule the new order would take effect on the instant of adoption, and all officers under the old order must give way. The schedule bridges over the intervening chasm between the two orders, so as to make easy the passage from one to the other. If a term of office be not existing when the new constitution is capable of filling it, it is the right of the people, and their sovereign will, as ordained in the new frame of government, to fill it under that new frame. But if the term of office is existing at the time of adoption, and continues until after the first, election, so that it cannot be filled at that election without injustice to thé officer and probably without prejudice to the public interest, it is reasonable that the term should be continued until it would have expired by efflux of its time. Hence the schedule so provides. -But if the term expire before the first election, the office becomes open to the operation of the new constitution, because it is then in the power of the people to fill it without prejudice, and the rights of the people and their will, as expressed in the 2d section of the 14th article, must be enforced. These are that the county treasurer shall be elected at the general election, that his term shall begin on the first Monday of January next after the election, and that it shall continue for a period of three years, instead of beginning in the following March and continuing only two years. There is no reason, therefore, for changing the express language of the 26th section of the schedule, which, as it now stands, enforces the rights and executes the will of the people, and thereby gives the new constitution its proper, early and symmetrical effect. The county treasurer is but one of the numerous class of county officers enumerated in the 1st section of the 14th article, while the 2d section was intended to produce uniformity, so far as possible, by putting them all on the same footing.

It is urged that ICilgore ivas re-elected in 1873, and therefore would have been in office at the first election under the new constitution in 1874. But he was not in office under the election of 1873, on the 1st of January 1874, when the schedule put the constitution into effect; and therefore he did not fall Avithin, the terms of the 26th section of the schedule. He was then in office under a former election; and in order to support his claim to hold the office under the election of 1873, we must say that one not in office at the adoption of the constitution shall afterwards talce office in order to be in office at the time of the first election. But this, we have seen, is unreasonable and without necessity, and postpones the operation of the constitution, contrary to the expressed will of the people that it shall take effect on the first Monday of January 1874, and their express provision that this operation shall be postponed only when there is a term, of office existing at the time of adoption and also at the time of the first election. The postponement of the operation of the new frame of government in this respect would, by the defendant’s interpretation, defer the right of the people to fill the office under this frame until the first Monday of January 1877. The election of 1873 was not under the new constitution, and consequently gave no right to the office contrary to its intent. Its adoption subsequently swept aAvay all right to office unless saved by the schedule. In such a case there can be no appeal to equitable considerations not provided for in the schedule. The sovereign will-of the people, expressed in a primordial act,, cannot be stayed by a mere election under a former frame of government, unless it has been their pleasure to permit it by a temporary provision to save it. Then on what ground of reason or intention shall we change the language of the schedule by reading “ and” or? “And” harmonizes the constitution and the schedule, and gives effect to the rights of the people'; “or” postpones their operation and robs the people of their right.

By a misconception of the effect of the schedule, no election took place in 1874, and a vacancy thereby occurred. But the omission to elect cannot change the meaning of the constitution. Under the Act of 15th May 1874, § 1, the vacancy could have been filled by the governor until another general election; and if not filled, it is worthy of consideration whether the true intent of the schedule would not have continued one in office at the adoption of the constitution until an election in 1875 should take place to fill the office. Such an interpretation would be in aid of the constitution and not hostile to it. But of this we give no opinion.

The election of James Gr. Murray being the first that took place under the new constitution, we perceive nothing to prevent his contesting the illegal tenure of Mr. Kilgore, with the consent and intervention of the attorney-general, who himself sued out this writ of quo warranto. If Mr. Murray was ineligible at the time of his election to hold the office when elected, the remedy is not by suffering one illegally in office to continue in it. 'When Murray’s right to it shall be contested by the Commonwealth, through her proper officer, it will be time to inquire into his ineligibility. Judgment of ouster must be given against this defendant.

And now, October 23d 1876, it is ordered and adjudged by the court, that the judgment of the Court of Common Pleas be reversed and set aside, and that the defendant, Samuel Kilgore, be ousted and altogether excluded from the office of treasurer of the county of Allegheny, and that the Commonwealth do recover from the said defendant her costs in this behalf expended and incurred.


author: Per Curiam. —

text:
    Insurance Company versus O’Maley et ux.

    1. One of the conditions of a policy of fire insurance was, “the insurance by this policy shall cease at and from the time that the property hereby insured shall be levied on or taken into possession or custody under any proceeding in law or equity.” A mechanic’s lien was filed against the building insured, judgment obtained thereon, a levari facias issued and was placed in the hands of the sheriff and the property advertised to be sold, when just before the day fixed for the sale the building was destroyed by fire. Held, that this levy did not terminate the risk and that the insurers were liable.
    2. This condition (as declared by the lower and affirmed by this court) has special if not exclusive reference to personal property, which when levied on is usually seized in fact, and remains until sold in the possession of the sheriff, who cannot be expected to guard it with the same degree of care that the owner would, and it was this actual seizure that necessarily increases the risk which the condition was designed to guard against, and not a technical seizure unattended by change of possession or increased risk.
    3. The phrase “levied on,” as employed in the policy, does not mean a technical levy, unaccompanied by actual seizure and change of possession, and has no application, ordinarily, to proceedings by levari facias for the sale of real estate.
    October 11th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1876, No. 36.
    This was an action of covenant, brought by John O’Maley and wife, to the use of Mellon Brothers, against the Manufacturers’ and Merchants’ Insurance Company, on a policy of fire insurance.
    The defendants pleaded covenants performed absque hoc, with leave, &c.
    The facts of the case are sufficiently set forth in the following opinion of Sterrett, P. J.:—

      “ The company defendant took a risk of $1000, for one year from ' the 4th of April 1874, on the house of Mrs. O’Maley, and issued their policy therefor in her name.
    “ On the first day of December 1874, the building was destroyed by fire, of which the company had notice, but they refused to make good the loss, and suit was brought, in the right of Mrs. O’Maley, to recover the insurance money. The only defence presented by the defendant’s affidavit and urged on the trial was, that, after the policy was issued, a mechanic’s lien was filed against the building for $21.68, judgment obtained thereon, levari facias issued and placed in the hands of the sheriff, and, before the fire occurred, the property was advertised to be sold on the 7th day of December 1874; that according to one of the conditions of the policy the insurance ceased at and from the time the levari facias was issued, • and therefore the company was not liable.
    “ The condition referred to is as-follows, viz/: ‘XI. The insurance by this policy shall cease at and from the time that the property hereby insured shall be levied on, or taken into possession or custody under any proceeding in law or equity.’

      “ It was admitted that the company had received the premium, and it was not pretended that there was any want of good faith on the part of the insured, or that the terms and conditions of the policy had been violated in any manner, except in the particular above stated. It was a bald legal defence, grounded on the letter of the condition in the policy, in connection with the, fact that a levari facias had been issued and the property advertised for sale.

      “We were satisfied at the time of the trial that the construction of the policy contended for by the learned counsel for the company was erroneous, and would work great injustice, but he expressed such confidence in his position that we concluded to reserve the question and instruct the jury, pro forma, that the proceedings under the mechanics’ lien did not constitute a valid defence, and a verdict was rendered in favor of the plaintiff for the amount of her claim, subject to the opinion of the court in banc on the question of law reserved, viz.: ‘ Whether, under the 11th condition of the policy, the insurance ceased and the liability of the company was ended before the loss occurred, by reason of the proceedings had on the mechanics’ lien.’
    “ The plaintiffs sought to raise other questions, but they were considered immaterial; and their right hinges entirely on the construction to be given to the condition just quoted. If the defendant’s construction be correct, judgment must be entered for the company, notwithstanding the verdict; otherwise, the plaintiff is entitled to judgment for the amount found by the jury.
    “While the general law of insurance provides necessary safeguards for the protection of underwriters against fraud and impo- ' sition on the part of the insured, it is undoubtedly competent and proper for them to incorporate in their contracts of insurance special terms and conditions calculated to secure the most ample protection against fraud and dishonesty; and all such terms and conditions, designed to guard against increase of risk and every species of fraud to which the insurer may be subjected, should be fairly construed with reference to the object sought to be attained. Beyond this harsh or sharp conditions should not be favored. ‘ Sometimes policies are seen,’ in the language of the learned judge who delivered the opinion of the court in West Branch Ins. Co. v. Helfinstein, 4 Wright 300, ‘bristling all over with sharp conditions,’ on which those who have been so unfortunate as to have their property destroyed by fire may be impaled at the pleasure of the underwriter. Such one-sided policies are not to be commended. They may be used as a snare for the unwary, and are not calculated to accomplish any practical good. Fortunately, they are of very rare occurrence. The policy before us is not one of this class; but to give it the construction contended for would be a decided step in that direction, and in our judgment would work great injustice.
    “The company received the ordinary premium for the risk assumed. The building was occupied by the insured and her family all the time, without any interference with her possession by the sheriff or any one else. No lack of good faith is, in any manner, imputed to her, and nothing whatever was done to increase the risk. Why then should the company, with the plaintiff’s money in their treasury, be absolved from their obligation to make good tbe loss ? We are answered, simply because an execution on tbe mechanics’ lien was issued, and the sheriff advertised the property for sale.
    “ Such a construction, having no practical bearing on or connection with the risk, surely could hot have been intended, and should not be given unless there is no escape from it. If the condition is construed as having in view a loss attended with an actual seizure and interference with the possession of the insured, whereby the risk might be increased, we can at once recognise ‘its wisdom and propriety ; and doubtless it was this that was intended, and nothing more.
    “ The condition in question has special if not exclusive reference to personal property, which when levied on is usually seized in fact and remains in the custody and possession of the sheriff' until it is sold. This works an involuntary change of possession — takes the property out of the owner’s control and leaves it in charge of the sheriff and his employees, who cannot be expected to guard it with the same degree of care that the owner would. Hence a levy and actual seizure necessarily increases the risk, and it is this that the condition is designed to guard against; but it has no applicability in the case of a technical seizure, unattended by change of possession or increased risk.
    “We conclude therefore that the phrase ‘ levied on,’ as employed in the policy, does not mean a technical levy, unaccompanied by actual seizure and change of possession, and has no application, ordinarily, to proceedings by suit of levari facias for the sale of real estate.
    “In The Commonwealth Insurance Co. v. Berger et al., 6 Wright 285, a condition precisely the same as that before us was construed by the Supreme Court. In that case, after the policy was issued and before the fire occurred, an execution was placed in the hands of the sheriff, and a levy was made on the goods of the insured, but they were not taken into the custody of the officers, or left in charge of a watchman, nor was the actual possession of the insured disturbed. While this condition of affairs existed the goods were destroyed by fire, and the insurance company defended against payment of the loss on the ground that the insurance ceased when the levy was made. The court held that the levy did not terminate the risk and that the company was liable.
    “The principles of this case rule the one before us; the fact that the levy was on personal property cannot change the principle of construction. If there is any difference, the reason would be still stronger in the case of a levy on real estate, which is always a mere technical seizure without any interference with the possession —at least until after sale.
    “The plaintiffs are therefore entitled to judgment. ”

      The defendant toolc this writ, and assigned for error the entry of judgment for the plaintiffs on the question of law reserved.

      William L. Ohalfant, for plaintiff in error. —
    A condition, expressed as such in a fire policy, if not complied with defeats the insurance, whether it is material to the risk or not, and whether the non-compliance be with or without the act or privity of the assured: 1 Phillips on Insurance, p. 478, sect. 866; Pennsylvania Insurance Co. v. Gottsman’s Adm’rs, 12 Wright 151; Glendale Woollen Co. v. Protection Insurance Co., 21 Conn. 19; Glens v. Lewis, 20 Eng. Law & Eq. Rep. 364.
    The law of the relation between insurers and the assured is the policy of insurance, with all its clauses, conditions and stipulations, by which their mutual rights and liabilities are to be defined and measured: West Branch Insurance Co. v. Helfinstein, 4 Wright 296; Trask v. State Fire and Marine Insurance Co., 6 Casey 198.
    This condition was'in the nature of a covenant on the part of the assured, that if the insured property should be taken in execution “under any proceedings in law or equity’.’ the insurance should cease and the company should have an opportunity to rescind the policy upon repayment of a proportionate part of the premium. After the policy was issued a mechanic’s lien was filed against the insured property, a judgment was obtained on a scire facias issued on said lien and the property seized in execution by the sheriff by virtue of a writ of levari facias. Was it not the duty of the assured, in good faith to the insurance company, to acquaint them of these facts, in order that they might charge .the assured a higher rate of premium for the increased risk or cancel their policy ? If property is unencumbered when insured, and afterwards becomes encumbered, the policy assumes that the risk is increased, and hence the necessity for an increase of premium: Pennsylvania Insurance Co. v. Gottsman’s Adm’rs, 12 Wright 151. The insurer should know whether any liens have attached that would diminish the owner’s interest in the property, for it is a fair presumption that the insured did not take the same care of her property when she was about to be dispossessed by the sheriff’s vendee as she did before that event, a principle recognised in Brown et al. v. Commonwealth Insurance Co., 5 Wright 187.

      W. H. Sutton Son, for defendants in error. —
    This court has adopted as a rule of construction that “ if an exception in a policy be capable of two interpretations, equally reasonable, that must be adopted which is most favorable to the assured, for the language is that of the insurers:” The Western Ins. Co. v. Cropper et al., 8 Casey 351. And applied this rule of construction to the identical condition in question: The Commonwealth Ins. Co. v. Berger, 6 Wright 285.
   The judgment of the Supreme Court was entered October 16th 1876’

Per Curiam. —

The judgment of the court below is sufficiently sustained in the opinion of Judge Sterrett.

Judgment affirmed..


author: Mr. Justice Woodward

text:
    Rowand versus The Commonwealth.
    1. R. was held to hail upon two informations upon charges of assault and battery, and the indictments founded thereon were preferred before the grand jury at June sessions 1875, and ignored, and the county ordered to pay the costs. At the September sessions of the same year, the same informations were sent before another grand jury, and true bills found. At the trial, a motion was made to quash these indictments, which the court refused, and the accused was tried and convicted. Held, that the refusal to quash cannot be reviewed by this court, and that this action of the district attorney and court helow could be brought before this court for review only where the abuse of their discretion should be found to have been both manifest and flagrant.
    2. The district attorney of the county has the power under the authority given to deputy attorneys general, by the Act of the 3d of May 1850, to prefer an indictment before a grand jury, without a previous commitment of the accused, and also, as in this case, after a return of ignoramus to a previous indictment of the accused for the same offence, without a fresh hearing ; but this power must be exercised under the supervision of the proper court of criminal jurisdiction, and its employment can only be justified by some pressing and adequate necessity.
    3. "When a defendant has been once discharged on a return of “ignoramus’’ a new bill sent up without a fresh hearing and without the leave of court should be promptly quashed in the absence of affirmative proof that the course taken was required, to meet some grave emergency or provide for some urgent public need, and where, as in this instance, the Quarter Sessions must be assumed to have approved the action of the district attorney, and the defendant has been tried, convicted and sentenced on the bills found, by the second grand jury, if there was wrong, it was one which the Quarter Sessions could alone redress, and this court is powerless to interfere.
    October 11th l876.
    Before Agnew, C. J., Sharswoód, Merour, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Quarter Sessions of Allegheny county, Nos. 53 and 54: To October and November Term 1876.
    The proceeding in the court below was thus:—
    At the June sessions of 1875 of the Court of Quarter Sessions, Allegheny county, A. H. Rowand, Jr., was held to bail upon two informations, upon charges of aggravated assault and battery, and assault and battery, and the grand jury ignored the bills founded upon these informations and ordered the county to pay the costs. At the September sessions of the same year these informations without the permission of the court were sent before another grand jury and true bills found.
    The counsel for defendant moved the court to quash the indictments in these'cases for the following reasons:—

      1. The informations and bills were before the grand jury of June sessions 1875, and the bills were ignored by that grand jury.
    2. No new informations were made, and the ignoring of the bills by the grand jury, as set forth in the first reason, was a final and conclusive determination of said informations.
    8. It is contrary to practice and at variance with the law to subject a defendant to the jurisdiction of two grand juries upon the same informations.
    The court (White, J.) in an opinion said :—
    “ These indictments were found on informations which were before the grand jury at the June sessions, on which bills were returned ignoramus. These are new bills, but precisely like the former ones, and being based on the same informations, are substantially the same as returning the old ignored bills to be reconsidered by a new grand jury. They were not directed to be sent back by the court. I doubt not the power of the court, on cause shown upon affidavits, to direct a bill to be sent back to be reconsidered by the same or a subsequent grand jury. But in the absence of such direction by the court, I doubt the legality, and very much condemn the practice of sending up the same bill (or one just like it, based on the same information) to a subsequent grand jury, after it has been ignored by one grand jury. Ordinarily an ignoramus should be the end of the case. If I were acting on my own judgment I would quash these indictments, but as I have been informed that the course pursued in these cases has been always sustained by this court, I shall conform to that practice, and refuse these motions.”
    The defendant, who was tried and convicted, took this writ and the error assigned was this refusal by the court to quash the indictments.

      Bayne Magee, for plaintiff in error.
    The District Attorney made no argument.
   Mr. Justice Woodward

delivered the opinion of the court, October 23d 1876.

Indictments in these two cases were preferred before the grand jury at the June Term of the Court of Quarter Sessions in 1875, and were returned “ ignoramus,” with a direction that the county should pay the costs. New indictments were sent to the next grand ju\’y at the September sessions 1875, and a “ true bill ” was returned in each case. Before the June Term Rowand, the defendant, had been held to'bail on informations made against him, and he was indicted in September for the offences charged in those informations. Expressing grave doubt of the legality of the proceeding, and emphatically condemning the practice which sustained.it, the Court of Quarter Sessions overruled the motion to quash the indictments.

If the question were an open one, there would be little doubt as to the rule it would be the duty 'of this court to lay down. On principle, the return of “ignoramus ” made on an indictment by a grand jury ought to be the end of the prosecution originating in the information returned by the committing magistrate. The defendant has complied with the conditions of his recognisance. The prosecution has failed with the failure of the bill. The sureties of the defendant are released, and he is entitled to be discharged. In analogy to the rules by which other judicial proceedings are governed, this ought to be the end of the case founded on the complaint he was called on in the first instance to answer. If the public interest should require that further action should be taken against him, it should be by a new warrant on a new information, except in those rare cases (which should be defined as accurately as possible) in which a district attorney is justified in preferring an indictment without a preliminary hearing. Such a rule would not interfere with the power of the judges of the Quarter Sessions, on proper notice, to re-commit to the same or a succeeding grand jury a bill thrown out in consequence of oversight, mistake or fraud. It would only prevent the injustice which the exercise of unlimited discretion by a district attorney is capable of producing. Discharged from his recognisance by the action of. the first grand jury, the defendant is thrown off his guard, and the second presentation of the indictment can be delayed till his witnesses are dead or distant, and his means of defence destroyed.

But principles have been long settled which require that the action of the district attorney in these cases shall be sustained.. The Act of the 3d of May 1850, providing for the election of this officer, makes it his duty to “ sign all bills of indictment, and conduct in court all criminal or other prosecutions in the name of the Commonwealth, or when the state is a party, which arise in the county for which he is elected, and perform all the duties which now-by law are to be performed by deputy attorneys general.” A defendant discharged from custody after the return of “ignoramus” to an indictment against him, remains still subject to prosecution in any of the forms to which the attorney general or his deputy before the Act of 1850 could resort. “ If a man be committed for a crime, and no bill be preferred against him, or it be thrown out by the grand jury, so that he is discharged by proclamation, he is still liable to be indicted. * * * And so, too, a discharge from a former indictment upon payment of costs, in consequence of the refusal of the prosecutor to prosecute further, is no bar: Whart. Cr. Law, sect. 544, referring to 2 Hale 243; Commonwealth v. Miller, 2 Ash. 61, and State v. Blackwell, 9 Ala. 79. The modes of proceeding in the initiation of criminal prosecutions were stated with great fulness and accuracy by Judge King in a charge to a grand jury of Philadelphia in 1845, quoted at length in a note to sect. 458 of Whart. Crim. Law. In the course of the charge, the judge said: “ Anothér instance of extraordinary proceeding is where the attorney general, ex officio, prefers an indictment before a grand . jury without a previous commitment of the accused. That this can be lawfully done is undoubted. And there are occasions where such an exercise of official authority would be just and necessary; such as where the accused has fled the justice of the state, and an indictment found may be required previous to demanding him from a neighboring state, or where a less prompt mode of proceeding might lead to the escape of a public offender. In these, however, and in all other cases where this extraordinary authority is exercised by the attorney general, the citizen affected by it is not without his guarantees. Besides the intelligence, integrity and independence which always must be presumed to accompany high public trust, the accused, unjustly aggrieved by such a procedure, has the official responsibility of the officer to look to. * * * In practice, the law officer of the Commonwealth always exercises this power cautiously —generally under the, direction of the court — and never unless convinced that the general public good demands it.” Doctor Wharton, speaking of the general result of the rules stated by Judge King, says: “ This is the view which may be considered as now adopted in Pennsylvania.” The same general result was reached by the reasoning of the present Chief Justice in McCullough v. The Commonwealth, 17 P. F. Smith 30. He said: “ It has never been thought that the 9th sect, of the 9th art. of the constitution, commonly called the Bill of Rights, prohibits all modes of originating a criminal charge against offenders, except that by a prosecution before a committing magistrate. Had it been so thought, the court, the attorney general and the grand jury would have been stripped of powers universally conceded to them. In that event, the court could give no offence in charge to the grand jury, the attorney general could send up no bill, and the grand jury could make no presentment of their own knowledge, but all prosecutions would have to pass through the hands of inferior magistrates.”

It is thus ajoparent that upon considerations involving the maintenance of the public security it has been found necessary to lodge this extraordinary and delicate authority somewhere, and it is apparent also that it has been lodged in the prosecuting officer of the Commonwealth. It is to be exercised, in the ordinary case, under the supervision of the proper court of criminal jurisdiction, and in all cases its exercise is subject to their revision and approval. The action of the officer and the court could be brought here for purposes of review only when the abuse of their discretion should be found to have been both manifest and flagrant. Cases can be conceived where the ends of justice would be defeated by the delay and publicity of a motion in open court for leave to send up an indictment, and in such cases it would be the duty of the prosecuting officer to act promptly and upon his own responsibility. Whether the exclusion of. the attorney general from the connection he formerly held with the criminal business of the Commonwealth, and the transfer of his powers to the district attorneys of the several counties, were well or ill advised, is a legislative and not a judicial question. Whatever individual theories may be entertained, and whatever the rule, if it were competent now to establish one, it might, in view of the tendencies of modern systems, be thought wise to adopt, all that can be said is that the questions presented by this record have been settled, and all that can be done is to accept the law as it has been inherited from the able men by whom the foundations of our jurisprudence were laid.

While, however, the possession of .this exceptional power by prosecuting officers cannot be denied, its employment can only be justified by some pressing and adequate necessity. When exercised without such necessity it is -the duty of the Quarter Sessions to set the officer’s act aside. Where a defendant has been once discharged on a return of ignoramus,” a new bill sent up without a fresh hearing, and without the leave of the court,, should be promptly quashed in the absence of affirmative proof that the course taken was required to meet some grave emergency, or to provide for some urgent public need. In the present instance, the Court of Quarter Sessions must be assumed to have approved the action of the district attorney. The defendant has been tried, convicted and sentenced on the bills sent to the second grand jury. If there was wrong it was one which the Quarter Sessions could alone redress. This court is powerless to interpose.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Howard versus McKee.
    The 1st sect, of the Act of 12th July 1842 forbids arrest and imprisonment on any civil process issuing out of any court in any suit founded on contract, and where the parties to an action treated the cause as one of alleged breach of warranty on a contract, and the plaintiff having obtained a verdict and judgment, without proof tff actual or intentional fraud, issued a capias ad satisfaciendum, upon a rule to show cause granted by the court, it was error to refuse to set aside the writ of ca. sa.
    October 12th 1876.
    Before Agnew, 0. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court .of Common Pleas, No. 1, of Alleglieny county: No. 69, of October and November Term 1876.
    This was an action brought by Milton McKee against R. C. Howard, to recover for a breach of warranty in the sale of a horse.
    The. facts appear in the pleadings.
    The action commenced by summons.

      A rule of court provided: that the plaintiff shall file with or before his declaration a specification of the items of his claim and statement of facts necessary to support it, verified by affidavit, to which the defendant shall file an answer, verified by affidavit, and if the specification and statement be filed with the praecipe they shall be treated also as an affidavit of claim and the defendant shall without further notice file his answer thereto within the time required for filing an affidavit’ of defence, which answer shall be treated as an affidavit of defence.
    Under this rule plaintiff filed an affidavit of claim with his praecipe which set forth that- defendant is justly and legally indebted to plaintiff in the sum of $110, with interest from March 13th 1875, which indebtedness arises from the following state of facts : On'the 13th day of March 1875, plaintiff purchased from defendant a black horse on the strength of the following representations and guarantees, which were made at the time of the sale and previous thereto, to wit: the said defendant representing and guaranteeing that said horse was sound in body, eye and limb, that he would pull single, double, and every place that he is put, and also told plaintiff that if said horse did not suit him in his business to return him to the said defendant at his residence in Allegheny city and he would make it right; that the defendant told affiant that the horse belonged to defendant’s son, that his son was not worth anything, and that he, the defendant, would therefore guarantee the horse as above set foi-th and be responsible to affiant if the horse did not suit his business.
    Affiant purchased said horse from the defendant on the strength of the above representations and guarantee and paid $110 for said horse. The said horse was not sound as guaranteed and represented, but was sprung in the right fore leg; and he would not work as represented, but would balk and refuse to pull at every hill or up grade, and that, too, when hitched to an empty wagon; affiant tried said horse on two different days, to wit: the 13th day of March and the 15th, and then on the 15th returned him to the said defendant.
    In an affidavit of defence defendant set forth that he did not sell to plaintiff a black horse on day named, nor did he make any representation or guarantee to plaintiff about any such horse except as follows, viz.: that on the 13th day of March 1875, William Howard, a son of defendant, sold a black horse to plaintiff; that William Howard gave plaintiff a written guarantee that said horse was sound, and that at plaintiff’s request defendant endorsed said guarantee, that said horse was sound as represented and a good worker; that whatever liability there is by defendant to plaintiff is only as surety for his son on his written guarantee and that he did not make any representations or undertake any liability in the premises other than as surety on the written guarantee of William Howard as aforesaid.
    On the 23d of June 1875 plaintiff filed this declaration:—
    “ E. C. Howard, the defendant in this suit, was summoned to answer Milton McKee, the plaintiff, of a plea of trespass on the case, whereupon the said plaintiff complains for that, whereas the said plaintiff heretofore, to wit: on the 1st day of April, A. D. 1875, at Allegheny city, to wit: at the county aforesaid, at the special instance and request of said defendant, bargained with the said defendant, to buy of said defendant a certain horse at and for a certain price or sum of money, to wit: the sum of $115, and the said defendant then and there falsely and fraudulently warranting, guaranteeing and representing said horse to be sound, and that he would work single or double, or any place he was put, then and there sold the said horse to the said plaintiff for the said sum of $115, which was then and there paid by the said plaintiff to the said defendant, whereas, in truth and in fact, the said horse was at the time of said warranty, guarantee and representations and sale thereof, unsound, unsteady, restive, ungovernable in harness, and would not work single or double or any place he was put, and hath from hence hitherto so remained and continued. And the said plaintiff in fact saith that the said defendant by means of the premises, on the day and year aforesaid, at the county aforesaid, falsely , and fraudulently deceived the said plaintiff on the sale of the said horse as aforesaid and thereby the said horse afterwards, to wit: on the day and year aforesaid, became of no use or value to the said plaintiff and thereby also the said plaintiff was then and there put to great expense of his moneys, in the whole amounting to a large sum of money, to wit: the sum of $50, in and about the feeding and taking care of and selling and disposing of the said horse, to wit: at the county aforesaid, day and year aforesaid. Whereupon the said plaintiff saith that he is injured and hath' sustained damage to the amount of $500 and therefore he brings his suit,” &c.
    The defendant the same day pleaded non-assumpsit, set off, payment with leave, &c.
    On the 1st of November a trial was had, and the. verdict-was for plaintiff for $114.15, upon which judgment was entered December 16th 1875.
    On the 2d of February 1876 a praecipe was filed for a fieri facias and capias ad satisfaciendum, and on the same day the writ of ca. sa. issued.
    On the 5th of the same month the court granted a rule to show cause why the writ of ca. sa. should not be vacated and set aside, and on the 31st of March discharged the rule.
    To this action of the court the defendant took this writ, alleging that the court erred in issuing the writ of ca. sa. on the judgment and in discharging the rule. "

      Blakeley $ Bigharn, for plaintiff in error. —
    Before defendant can be lawfully imprisoned he must have knowingly misrepresented the horse, and thus been guilty of deceit. Actual fraud is necessary to maintain an action of deceit: Bokee v. Walker, 2 Harris 139. Under our rules of court the issue is made up of the affidavits of claim and defence, and they become a part of the pleadings. Neither plaintiff’s claim nor his narr. contain allegations that defendant knowingly misrepresented the horse. The whole record shows the action was upon a contract of warranty.

      James W. Over, for defendant in error. —
    There are direct averments in the narr. that defendant knew he was practising a deceit on plaintiff and that his representations were false. In an action upon the case in tort for a breach of warranty of goods, the scienter need not be laid in the declaration, nor if charged need it be proved: 1 Chitty’s Pleading 159.
   Mr. Justice Mercur

delivered the opinion of the court, January 2d 1877.

This action was commenced by summons. It was to recover for a breach of warranty on the sale of a horse. The declaration was in the form given in 2 Chitty’s Plead. 680, for deceit in case of a false warranty. No distinct averment is made therein that the vendor knew the guaranty or representations to be false. A rule of the court below requires the plaintiff in all cases to file a specification of the items of his claim and statement of facts necessary to support it, verified by affidavit. Under that rule the plaintiff below filed an affidavit. It contains no averment of fraud or deceit. It does not allege any intentional misrepresentation. It simply declares that he purchased on the strength of certain representations and guarantees, which he specifies. It then charges, that the horse is not sound as guaranteed and represented. The pleas were nonassumpsit, set-off, payment with leave, &c. On these pleas the case was tried. The parties tlnm treated the case as one of alleged breach of warranty on a contract. The defendant in error, having obtained a verdict and judgment, issued a capias ad satisfaciendum. The court granted a rule to show cause why the ca. sa. should not be vacated and set aside, but they discharged the rule. The issuing of the writ and the refusal to set it aside are assigned for error.

The first section of the Act of 12th of July 1842, Purd. Dig. 49, pi. 51, declares: “ No person shall be arrested or imprisoned on any civil process issuing out of any court of this Commonwealth, in any suit or proceeding instituted for the recovery of any money due on any judgment or decree founded on contract, or due on any contract, express or implied, or for the recovery of any damages for the non-performance of any contract, except in proceeding as for contempt to enforce civil remedies, actions for fines or penalties or on promises to marry, or moneys collected by any public officer, or for any misconduct or neglect in office,-or in any professional employment, in which cases the remedies shall remain as heretofore.” This section applies. only to cases founded on contract, but as we have shown this judgment was-founded on a contract, and is not within the exceptions enumerated in the act. This case is therefore brought within those provisions of the section which forbid arrest and imprisonment.

There can be no deceit in the sale of a chattel without a scienter : Staines v. Shore, 4 Harris 200. Whenever a party relies on a fraud it ought to be distinctly and particularly alleged: Groff v. Groff, 14 S. & R. 184. It was said in Clark v. Partridge, 2 Barr 13, the rule is founded on principles of justice which require that the party to be affected should have a full opportunity to meet and disprove the charge.

It is not enough to give notice of the facts intended to be proved, from which a jury may infer fraud. If this be requisite in a notice of special matter, much more will it be required in a declaration in which more precision is expected. Actual or intentional fraud was necessary to sustain the capias: Bokee et al. v. Walker, 2 Harris 139. Neither was averred in the declaration, nor in the affidavit of claim. Under the pleadings, it was not necessary to prove any fraud on the trial. The narr. shows a complete right of action wholly inconsistent with the good faith of the vendor of the horse. We will not assume any other issue was tried than the one found by the pleadings. That was one on contract only. It follows, therefore, the ca. sa. was improperly issued, and the court erred in not setting it aside.

Judgment reversed, and rule made absolute.


author: Chief Justice Agnew

text:
    Liblong versus The Kansas Fire Insurance Co.
    1. By the provisions of the Act of April 4th 1873, regulating the conduct of foreign insurance companies, service on these companies since the passage of that act must be made upon the agent designated by the company to receive service of process, at his office or place of business.
    2. An agent sent out to solicit risks is not such an agent.
    3. The sheriff’s return in this case was not conclusive of the agency, for it set forth neither the character of the agent nor the place or office where service was made.
    October 12th 1876.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1876, No. 91.
    This was an action of assumpsit, brought by W. N. Liblong against the Kansas Fire Insurance Company.

      The original summons in the case was issued July 9th 1875, to which the sheriff’s return was “ non est inventus.”
    On the 8th of December 1875 an1 alias summons issued, which was returned: “ Served by delivering a true and attested copy of the within writ to Joseph P. Fisher, agent for Kansas Insurance Company, and by making known to him the contents thereof.”
    On December 24th 1875, on motion of defendants’ counsel, a rule was granted on plaintiff to show cause why the service should not be set aside, which motion was supported by an affidavit of Charles Tredick, who averred therein that he was the attorney in fact of the defendant company and the only party in Pennsylvania authorized to accept service of writs issued against said company, and the only party in the state upon whom they could be legally served, and that the writ in this action had never been served upon him, nor had he accepted service of the same; that the only authority Joseph P. Fisher had to transact business was derived from deponent, and was limited to effecting insurance and receiving premiums therefor under the direction of deponent, and that deponent’s authority as agent is duly filed with the proper officer of the Commonwealth.
    On March 1st 1876 the court, after argument, made the rule absolute, which was the error assigned in the case.
    The only question involved was whether Joseph P. Fisher was an agent upon whom a service of the original writ would be legal and binding upon the company.
    The provisions of the Act of April 4th 1873, under which it was alleged service must be made upon the company defendant, are set forth at length in the opinion of this court.

      Weir $ Gribson, for plaintiff in error. —
    The service was made under the 6th section of the Act of 8th April 1851, Pamph. L. 354, which is in the following words : “ That in any case when any insurance company or other corporation shall have an agency, or transact any business in any county of this Commonwealth, it shall and may be lawful to institute and commence an action against such insurance company or other corporation in such county, and the original writ may be served upon the president, cashier, agent, chief or any other clerk, or upon any directors or agent of such company or corporation within such county, and such service shall be good and valid in law, to all intents and purposes1 Purd. Dig. 287. Defendants are a foreign corporation doing business in Pennsylvania by agents duly authorized, of whom Fisher, who was served, was one, having an office in Pittsburgh, transacting business for said company, effecting policies of insurance subject to approval of company, and collecting and receiving premiums for the same.
    The sheriff’s return is conclusive of the fact of agency. Having returned that he served the agent of the company, the court will not inquire into the question of his agency: Kennard v. Railroad Co., 1 Rhila. R. 41. Service on any agent of a foreign insurance company any where is enough under the 6th section of Act of 1851, supra; Cochran v. Library Co., 6 Phila. R. 492. The Act of April 4th 1873, Pamph. L. 20, does not repeal the Act of 8th April 1851. It is but cumulative as to the service of original writs upon foreign insurance companies.

      J. A. JSmery, for defendant in error. —
    The only service that would be legal or binding on the company must be in accordance with the provisions of the Act of April 4th 1873 (Pamph. L. 1873, 20), and the writ in this case not having been served as required by that act there was no legal service upon the company.
   Chief Justice Agnew

delivered the opinion of the court, October 30th 1876.

The Act of April 4th 1873 was intended, among other matters, to regulate the conduct of foreign and other extra-territorial insurance companies within this state. The 13th section provides, that no insurance company, not of this state, or its agents, shall do business in this state until it has filed with the insurance commissioner a written stipulation agreeing that any legal process affecting the company may be served on the insurance commissioner, or the party designated by him, or the agent specified by the company to receive service of process, and this stipulation shall not be revoked or modified so as to require or dispense with the service at the office of the company. The 8th section requires every company to file with the insurance commissioner a copy of its charter and a certified statement of the time of its organization, the location of its principal place of business and the names and residence of its officers. No company, by the 9th section, can take risks or do business until it has fully complied with the provisions of the act. By the 10th section no person can act as agent of an insurance company in another state, or of a foreign government, until the provisions of the act are complied with, and a certificate granted by the commissioner to the company of its authority to transact business in this state. These with other provisions of the act show that the intent of the legislature was to bring such companies fully within the power and control of the stafe. Now, as a reasonable conclusion from these provisions, the company must be protected in the proper enjoyment of its privileges. Having an actuary or agent armed with a certificate of authority and an office or place of business, it is but reasonable that a company should be served with process upon its authorized -agent, for whom a stipulation is given, at its place of business; and not that every agent in every county in the state, sent out merely to solicit risks, should be its representative. Such agents have no responsibility in this respect, and their forgetfulness or negligence to inform the company of service on them should not be permitted to result in injury, when the citizen has a full remedy by service on the proper representative. Before the passage of this act and when distant insurance companies weré, by their agents, flitting over the states, leaving no impress of their feet upon its soil, there was a good reason to permit service wherever it could be obtained. The conclusiveness of the sheriff’s return cannot be appealed to, for it sets forth neither the character of the agent nor the place or office where service was made. We think the court below was right in inquiring into and setting aside a service which neither in fact nor in law came up to the service required by the Act of 1873. Order affirmed.


author: Mr. Justice Sharswood

text:
    O’Hara versus Baum.
    1. Judgment under a rule of court was entered by the prothonotary upon counsel’s praecipe, against O’H., in default of notice of affidavit, specification and statement of defence. The affidavit of O’H. was not a specification of set-off and statement of defence, but a total denial of liability upon the mortgage sued upon. On motion, the court refused to strike off the judgment. .Held, to be error.

      2. A motion to set aside or strike off a judgment must be on the ground of irregularity appearing on the face of the record; a motion to open it is an appeal to the equitable power of the court, to let the defendant into a defence.
    October 13th 1876.
    Before Agnew, C. J., Sharswood, Mercur,_ Gordon, 'Paxson and Woodward, JJ. Williams, J., absent.
    Error to the Court of Common Pleas, No. 1, of Allegheny county: No. 137, of October and November Term 1876.
    This was a scire facias upon a mortgage issued by A. E. Baum, to the use of S. P. Fulton, against Michael O’Hara and Frances A., his wife.
    Rule 5th of the court below is as follows :—
    “ Sect. 1. The plaintiff shall file, with or before his declaration, a specification of the items of his claim, and a statement of facts necessary to support it, verified by affidavit, to which the defendant shall, within the time hereinafter specified, file an answer, verified by affidavit, and such items of the claim and material ayerment of the fact as are not directly and specifically traversed and denied by the answer shall be taken as admitted.
    . “ Sect. 2. If the specification and statement be filed with the praecipe they shall be treated also as an affidavit of claim, and the defendant shall, without further notice, file his answer thereto within the time required for filing an affidavit of defence, which answer shall be treated as an affidavit of defence. If the specificatipn and statement be not filed with the praecipe, the plaintiff shall, within ten days after filing the same, notify defendant thereof, and the defendant shall,' within ten days after notice, file his answer thereto.
    “ Sect. 3. This rule shall apply to a specification of set-off and statement of defence filed by the defendant, who shall, within ten days after filing the same, notify the plaintiff thereof, and the plaintiff' shall, within ten days after notice, file his reply thereto, verified by affidavit.
    “ Sect. 4. If the plaintiff fails to comply with any of the requirements of this rule, judgment of non pros, shall be entered against him by the prothonotary; and if the defendant fails to comply with any of the requirements thereof, the plaintiff shall be entitled to judgment against him as for default of a plea and affidavit of defence.”
    In pursuance of the foregoing rule, Fulton, the assignee of the mortgage, filed this affidavit of claim;—
    “ Personally came S. P. Fulton, who, being sworn according to law, deposes and says: that the said defendants are justly and legally indebted to him in the sum of $15,000, arising as follows, to wit: the said defendants, M. O’Hara and Frances A. O’Hara, his wife, did on the 20th day of August 1871, execute and deliver to A. F. Baum a certain mortgage upon portions of their real estate for the sum of $15,000, conditioned that the said O’Hara and his wife, and their heirs, &c., should keep the said A. F. Baum harmless, and save him harmless from any loss or damage from or on account of endorsements made by him of certain notes of the said M. O’Hara amounting to $15,000, and the said O’Hara has ■failed to pay and lift said notes, or secure the payment thereof, whereby the said Baum has been compelled to pay large sums of money due upon said notes, and has been repeatedly sued and judgments have been recovered against him upon said notes, and the said O’Hara has utterly failed to protect him against said endorsements, whereby the said Baum has been compelled to pay out money and sustained losses to the amount of $15,000, and the said defendants have thereby become liable to pay him or his assigns the said sum of $15,000 upon said mortgage. And the said Baum did on the 23d day of May 1873 assign said mortgage and all moneys secured thereby to deponent for value received. Deponent is therefore justly and legally entitled to collect from said defendants the full amount of said mortgage, to wit, $15,000, with 5 per cent, attorney’s commission thereon for collection.”
    On the 11th of July 1874 the following affidavit of defence was filed:—

      “ Personally appeared, Frances A. O’Hara, defendant, who being duly sworn, says : That as she believes, is informed and expects to prove, there is nothing due the plaintiff on his mortgage for any purpose whatever, according to the terms thereof, and that the defendants are entitled without any payment to have the same marked satisfied on the records thereof; that as deponent is informed and expects to prove, said S. P. Eulton does not hold said mortgage for value, but as a cover for said A. E. Baum. All of which is true to the best of her knowledge and belief.”
    On the 16th of September 1874, the counsel of Baum directed the prothonotary to enter judgment in accordance with the above rule against Michael O’Hara in default of appearance and affidavit of defence, and against Frances O’Hara, his wife, in default of notice of affidavit, specification and statement of defence for sum due liquidated, to wit: $15,946.87, which was a principal debt of $15,000, interest and 5 per cent, attorney’s commission.
    On the same day judgment was entered against defendants in default for the above amount.
    On the 31st of October 1874, on motion of defendants’ counsel, a rule was granted on plaintiff to show cause why this judgment should not be stricken off, proceedings meantime to stay, which rule after argument the court discharged on the 2d of December 1874.
    The errors assigned in this case were to this order of the court, and that the judgment entered was irregular and void.
    It appeared, however, that afterwards, on the 2d of January 1875, a commissioner was appointed to take testimony, who made a report on the 18th of April 1876, to which exceptions were filed on the 28th of the same month, and on the 6th of May this entry was made upon the record by the court: “ May 6th 1876, on argument list, and exceptions to commissioner’s report dismissed, and rule granted, October 31st 1874, to show cause why judgment should not be stricken off, &c., discharged.”
    These proceedings are thus set forth to make intelligible the observations thereon in the opinion of this court.

      M. A. Woodward, for plaintiffs in error. —
    The only question here is whether the plaintiff was entitled to notice of our affidavit of defence, and therefore to judgment in default of notice. Our defence is intended to be and is a simple denial of the whole of plaintiffs’ claim. It is not a defence by way of set-off or avoidance of the plaintiffs’ claim, and not being such, there is no known rule or authority for entering judgment for want of notice: Gannon et al. v. Fritz, Pittsburgh L. J. (N. S.), vol. 6, No. 25, p. 100. The question of the sufficiency of our affidavit is not raised, and can only be raised under the rules of court upon a rule for judgment for insufficiency, with notice to the other si'de and reasons filed.

      A. M. Brown and S. P. Pulton, for defendant in error. —
    The judgment is regular and authorized by the rules of court. Michael O’Hara made no pretence or attempt to answer or defend. Mrs. O’Hara' did file an answer., but not such.either m form or substance as required by the rules., • Her affidavit does not exhibit- any notice, specification or statement of defence, or denial of any material fact in plaintiffs’ affidavit of claim. . ■ .
   Mr. Justice Sharswood

delivered the opinion of the court, October 23d 1876.

It is impossible, we think, to sustain the judgment below against Frances O’Hara. It was entered by the prothonotary upon the plaintiffs’ praecipe against her “ in default of notice of affidavit, specification and statement of defence.” It is not a judgment for want of a sufficient affidavit of defence, but under sections 3d and 4th of rule 5th of the court below. The affidavit of Mrs. O’Hara was not a specification of set-off and statement of defence, but a total denial of liability upon the mortgage sued upon. It was not a case, therefore, within that rule, as was decided by this court in Gannon et al. v. Fritz, 6 Pittsburgh Law Jour. (N. S.) 100. Concede that the affidavit was insufficient, Mrs, O’Hara was not heard below on that question, and it may be that if she had been she would have put in a supplemental affidavit. It is clear that we cannot hold the judgment valid on that ground.

With the subsequent proceedings in the cause we have nothing to do. They are certainly, to say the least, very anomalous. . On the 31st October 1874 a rule was granted, whether on behalf of Mrs. O’Hara or of both defendants is not stated, to show cause why the judgment should'not be stricken off. It seems by the record that, December 2d 1874, that rule was discharged. No rule was taken to open the judgment and let the defendants into a defence. Yet, on the 2d January 1875, a petition by Michael O’Hara, against whom judgment for want of appearance and affidavit of defence had been taken at the same time with that entered against Mrs. O’Hara, and which stood unimpeaehed, was presented praying an order of the court to enable the .defendants to take testimony to show what was due, if anything. On the same day a commissioner was appointed to take testimony and report the facts to the court. In the order he is said to be appointed to take testimony P in discovery of the amount for which the plaintiffs are entitled to judgment.” His report was afterwards made and exceptions filed. May 6th 1876, the exceptions were dismissed, and the rule, granted October 31st 1874 (which, as we have seen, had been before discharged), was again discharged. It would not be just to charge these.irregularities on the learned court below. They may have been led to believe that the rule of October 31st 1874 was a rule to open the judgment, and had not been disposed of. It is true that in proceedings upon a recorded mortgage there is not much practical difference between striking off and opening a judgment. The judgment in such cases neither creates nor continues the lien. It is nevertheless important to observe the distinction in practice in all cases. A motion to set aside or strike off a judgment must be on the ground of irregularity appearing on the face of the record; a motion to open it is an appeal to the equitable power of the court to let the defendant into a defence. In any aspect of the case, however, we can see no good reason why these proceedings should be regarded as any waiver by Mrs. O’Hara of the irregularity of the judgment against her.

The judgment against Michael O’Hara is affirmed. The judgment against Frances O’Hara is reversed, and-procedendo awarded.