author: Thompson, 0. J.

text:
    Bartholomew’s Appeal.
    1. In partition in the Orphans’ Court at the return of the commissioners, all the heirs but two appeared ; the land was offered to those appearing successively ; one in open court offered $4 above the valuation, that being the highest bid; on a rule granted, those then absent afterwards appeared, and one offered $8 above the valuation; the heir who had offered $4 then offered $8.01, and the land was adjudged to her: Held, that to be error-, it should have been adjudged to the heir offering $8.
    2. In “ all cases of partition in any court,” a party having made one bid is not entitled to another-.
    8. The bid of a party should be made in writing.
    4. It is irregular when part only of the heirs are present at the return of an-inquest to offer the land to them; a rule should be granted on all to come in before offering to any.
    5. IClohs v. Reifsnyder, 11 P. ¶. Smith 240, adopted.
    March 19th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Appeal from the Orphans Court of Northampton county: No. 198, to January Term 1872.
    In the estate of Philip Bartholomew, deceased.
    The decedent died seised of two tracts of land, leaving to survive him eleven children, viz.: Aaron, Franklin, Gideon, Elias, Philip, John, Henry, Levina the, wife of Reuben Crock, Lucy Ann, the wife of Daniel Kostenbader, Sarah the wife of Abraham Henry, and Susanna the wife of William- Miller.
    Commissioners appointed on the application of all the heirs in proceedings in partition, on the 5th of November 1871 reported that they had valued Lot No. 1 of the real estate at $58 per acre, and Lot No. 2 at $57 per acre; all the heirs except John and Sarah appeared. The heirs being called in their order, Aaron the oldest, offered to accept Lot No. 1 at the valuation; the intermediate heirs having refused, Gideon offered $2 per acre beyond the appraisement, the others refused, until Levina, who offered $4 per acre beyond the appraisement.

      The court granted a rule upon John and Sarah to appear on the 24th of November and accept or refuse Lot No. 1, and on all the heirs to accept or refuse Lot No. 2.
    On the 24th of November all the heirs appeared, when John offered $8 per acre beyond the valuation for Lot No. 1; Levina Crock, who had before offered $4, now offered $8.01 per acre in advance of the valuation, and Sarah Henry refused. Lot No. 1 was thereupon adjudged to Levina at that bid; all the heirs refusing Lot No. 2, it was ordered to be sold.
    John Bartholomew appealed to the Supreme Court, and assigned for error that the Orphans’ Court did not adjudge Lot No. 1 to him at his bid.

      A. S. Knecht and F. J. Fox, for appellants, cited Klohs v. Reifsnyder, 11 P. F. Smith 240.

      O. II. Myers, for appellee.
    May 13th 1872,
   The opinion of the court was delivered,

by

Thompson, 0. J.

There was some degree of irregularity in the proceedings in this case in awarding the purparts into which the lands of the decedent had been subdivided by the commissioners, that calls for notice as such, but which does not amount to reversible error. All of the heirs not being present at the time of making the report of partition by the commissioners, instead of offering the purparts, two in number, to those present, a rule should have been granted by the ’court upon all the heirs to come in on a day certain to refuse or accept the purparts at the appraisement. The court, however, allowed those present, in the order of seniority and sex, to make choice, and then granted a rule on those'not present, to wit: John Bartholomew and Sarah Henry, to appear on a day appointed, to refuse or declare their acceptance of the purparts. All the heirs appeared in court on that day, when John Bartholomew offered to take purpart No. 1 at $8 per acre above the appraisement, whereupon Levina, wife of Reuben Crock, who had on the first day offered $4 per acre more than the appraisement, now offered one cent per acre above the offer of John Bartholomew and the court awarded the land to her. We think there was error here. Mrs. Crock had had her bid, and was not entitled to a second. This we held to be the rule in Klohs v. Reifsnyder, 11 P. F. Smith 240, under the Act of April 22d 1856, § 10, Purd. Dig. 774, pl. 28. That act in express terms applies to all cases of partition of real estates in any eowt wherein a valuation shall have been made of the whole or parts thereof.” Of course, partition in the Orphans’ Court is embraced by the act, without interfering with the order of choice provided for in the 37th section of the Act of 29th March 1832. In Klohs v. Reifsnyder our brother Agnew has shown with striking clearness, the impropriety of bidding and overbidding in cases of partition, and that a party entitled to raise the value beyond the appraisement should do so by a proposition in writing. Mrs. Crock did not regard the real value in her first bid, for she went beyond jt $4.01 cent, per acre in her second. She introduced into the proceedings just what we condemned in the case cited, namely, alternate bidding. An heir wishing any certain appraised purpart, ought to make up his or her mind and offer what he or she is willing to give for it above the appraisement, and not depend upon what others may be willing to do. By the rule established in Klohs v. Reifsnyder, this is the only mode by which such a wish may be gratified. As John Bartholomew was the highest bidder according to law, the Orphans’ Court should have awarded purpart No. 1 to him.

The decree of 'the court below is therefore to this extent reversed, and the record is remitted, in order that a decree in accordance herewith shall he entered in the court below, the costs of this appeal to be paid by the appellee.


source: Caselaw Access Project

author: Thompson, C. J. Williams, J.

license: Public Domain

text:
    Moyer versus Pennsylvania Slate Company et al. Keller versus Same. C. Featherman versus Same. Becker et al. versus Same. Young versus Same. J. H. Featherman versus Same.
    1. An act incorporating a slate company, provided that the stockholders should be individually liable ‘‘ for debts, due mechanics, workmen and laborers employed by the company, and for materials furnishedthis did not include hauling, repairing wagons, lumber for erecting machinery, provender for horses used for the company, powder for blasting, tools, &a.

    2. If there be language in an act of incorporation ambiguous or indefinite, it must be interpreted in view of the objects of the law, its purposes and the appropriateness of the language in relation to the supposed object of the legislature.
    3. A provision in an act of incorporation inconsistent with the individual irresponsibility of the members is in derogation of the common law, and to be strictly construed.
    4. “ Materials,” refers to that only which forms part of the 'products of the company.
    March 19th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Ag-new, J., a,t Nisi Prius.
    Writs of error to the Court of Common Pleas- of Northampton county: January Term 1872.

      In the court below a number of suits were brought to August 'Term 1870 against the Pennsylvania Slate Company, August Welle and others, stockholders in the company. The suits were under the 7th section of the Act of June 25th 1864, Pamph. L. 947, incorporating The Pennsylvania Slate Company.
    The section provides : “ That the stockholders of said company shall be jointly and severally liable in their individual capacities for debts due mechanics, workmen and laborers employed by said company, and for materials furnished said company.”
    The object of the suits was to charge the stockholders individually for debts contracted by the corporation.
    The plaintiffs in the several suits and the character of their debts were as follows:—
    H. K. Moyer, for hauling slate with his own team from the company’s quarries, in Northampton county, to the railroad station.
    J. P. Keller, for repairs done at his shop in Monroe county to the wagons used by the slate company in transporting the slate.
    Charles Eeatherman, for lumber furnished in the erection and construction of a derrick, &c., to be used in raising slate from the quarries; also oats, hay and straw for horses and mules of the company.
    Becker, Hilliard & Co., for powder and fuse for blasting slate in the quarries, and also for horse-shoes and nails, grease for wagons, files, shovels and other quarrying tools, &c.
    John K. Young, for powder and fuse.
    Jacob H. Eeatherman, for hay.
    The cases of Moyer and Keller were tried by a jury, January 26th 1872, before Longaker, P. J., who instructed the jury that the debts were not such as under the 7th section of the act of incorporation would create a liability upon individual stockholders, and under the direction of the court the jury found verdicts for the defendants.
    In the other actions a ease was stated, and judgment was rendered for the defendants on the following opinion of Judge Longalcei’j which was approved by the Supreme Court, and directed to be reported:—
    “ The question for decision is, whether or not hay sold by the plaintiff to the defendant corporation to feed the mules, which were used in transporting slate to the railroad depot, is embraced within the legal signification of the phrase, ‘ materials furnished.’ Material, in its ordinary acceptation, is the substance out of which anything is made; and this is the only definition given to the noun by Webster. Material as an adjective has a much larger signification, but it is of its use as a noun that we seek its import.
    “ The ingredients which form a chemical compound are called chemical materials; the substances which enter into the erection of a building are called building materials; cotton and wool used by the manufacturer are tbe materials out ^of which the cloth is made, and thus the comparison might be pursued throughout every description of manufactures.
    “ When the stockholders of a manufacturing company are made individually liable for materials furnished their corporation, it is not pretended that the liability is of greater import than to hold them for the substances which are used in that particular line of manufacture. A cotton or woollen manufactory would be held liable for cotton and wool, but certainly not for pig-iron or powder, nor for provender furnished mules in transporting their goods, because none of these substances are used in the manufacture of woollen or cotton goods.
    “ It is said, if the stockholders are not to be held liable for hay furnished for the mules, it is difficult to know for what materials they are liable. Hay in its ordinary acceptation is not a material but provender, farm produce. If it were the legislative intent to protect the farmer in furnishing food for mules, the word used would have been provender, or farm produce, and not materials. If the intent be to create a liability for wares, goods and commodities, so as to protect the merchant, the word merchandise would be used. In creating the individual liability under the general Manufacturing Act of 27th March 1854, the phraseology is, ‘for machinery, provisions, merchandise, country produce and materials furnished.’
    “ To restrict the legal signification of materials to substances, which are actually used by the defendant corporation in the manufacture of articles, will be to limit it plainly according to the legislative intent; to give it greater scope will afford a greater license of construction than can safely be applied generally to manufacturing companies. It must not be lost sight of that the defendant, amongst other powers, has the right to manufacture slate; one branch of this manufacture may be slate for school purposes, which to be complete for the market, requires frames, and substances thus used will be materials furnished. But as this corporation may be a manufacturer, it is sufficient to know that nothing can be manufactured without material, and therefore the legal signification of the phrase, ‘materials furnished,’ is to be applied to those substances which are used in the manufacture of the articles produced, and is not to be so enlarged as to embrace everything that may fall within the general definition of matter. Hay is not embraced in the phrase, materials furnished.”
    The plaintiffs removed the records to the Supreme Court.
    The errors were respectively, instructing the jury to find for the defendants and entering judgment for the defendants on the case stated.

      W. S. Kirkpatrick and W. W. Schuyler (with whom were J.

      II. Dawes and W. Mitchell), for plaintiffs in error.
    One who hauls slate with his own team is a “laborer or workman so a wagon-maker is a “ mechanic” within the meaning of the act, although he does work for others at his own shop: Seider’s Appeal, 10 Wright 57; Penna. Coal Co. v. Costello, 9 Casey 241; Savoy v. Jones, 2 Rawle 344. “ Materials” in the act covers the articles furnished by the plaintiffs,- although not actually used: Hinchman v. Graham, 2 S. & R. 170; Presbyterian Church v. Allison, 10 Barr 413; White v. Miller, 6 Harris 52; Odd Fellows Hall v. Masser, 12 Id. 508. The statute being remedial, everything was to be done in advancement of the remedy that could be done consistently with any construction that could be put upon it: Weigley v. The Coal Oil Co., 5 Phila. R. 67; Dwarris on Statutes 73; Johns v. Johns, 3 Dow 15; Gillett v. Moody, 3 N. Y. 479; People v. Runkel, 9 Johns. R. 147; Dame’s Appeal, 12 P. F. Smith 417. All acts of incorporation are to be taken most strongly against the companies: Stormfeltz v. The Manor Turnpike Co., 1 Plarris 555; Packer v. Sunbury & Erie Railroad, 7 Id. 211; Hull v. Hull, 2 Strob. Eq. R. 174; Jackson v. Collins, 3 Cowen 89; Wilkinson v. Leland, 2 Pet. 662; People v. Utica Ins. Co., 15 Johns. 358; Mendon v. Worcester, 10 Pick. 235; Whitney v. Whitney, 14 Mass. 88-92; Holbrook v. Holbrook, 1 Pick. 248; 1 Kent’s Com. 462. Every interpretation which leads to an absurdity ought to be rejected: Gore v. Brasier, 3 Mass. 523; Richards v. Dagget, 4 Id. 534; Dwarris on Stat. 132.

      P. J. Pox (with whom were O. II. Meyers and II. (preen), for defendants in error.
    Statutes are to be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operations : 1 Kent’s Com. 462, 463.
    A statute which alters the common law, shall not be strained beyond the words, except in cases of public utility, where the end and design of the act appears to be larger than the words themselves; Vaugh. 179; 6 Jacob’s Law Dic. 122.
    May 12th 1872,
   The opinion of the court in the cases of Moyer and Keller were delivered, by

Thompson, C. J.

These two actions were by agreement tried together below, and were brought against the above-named corporation and stockholders, under the provisions of the Act of incorporation, approved 25th June 1864. The stockholders’ liability clause in the act is as follows : “ The stockholders of said company shall be jointly and severally liable in-their individual capacity, for debts due mechanics, workmen and laborers, employed by said company, and for materials furnished said company.”

The claims embraced by these suits are not of a like nature, but are within the same governing principle on the question of liability of the stockholders. The first is a claim by the plaintiff for himself and team in hauling slate from the quarry of defendant, to a railroad station for shipment. The second was for repairing wagons at plaintiff’s shop in an adjoining county, some five miles distant from defendants’ quarry. It was assumed by the plaintiff, that these claims were good against the stockholders jointly and severally, under the provisions of the Act of Assembly referred to. The court below thought they were not.

Corporations are just what the law of their organization makes them — no more, no less; and when there is anything in the law calling for interpretation on account of ambiguous or indefinite language, we must explain the meaning in view of the objects of the enactment — its purposes — and consider the appropriateness of the language used to the supposed purpose in view by the legislature.

By the common law, the individuality of the members of a corporation was merged in the associated body, so far as liability for debts was concerned. The artificial body represented them in that. Whenever, therefore, there is a change in this particular in the act of incorporation, it is consequently just so far in derogation of the common law, and is to be strictly construed; McMullin v. McCreary, 4 P. F. Smith 230; that is to say, it is not to be extended by implication. Many authorities go to prove this which need not be cited. It is not to be forgotten, however, that this, as a rule, has no place where the intent is manifest from the words of the law.

The common law was certainly changed in regard to the liability of the stockholders of this company, so far as it renders them liable in their private capacity, for “ debts due to mechanics, workmen, and laborers, employed by said company.” It has been contended by the able counsel for the plaintiff in error, that these words are broad enough to cover any claim of any mechanic for work done for the company at his shop anywhere, without regard to any connection as a mechanic of the company, and so of any laborer anywhere, whose services the company may have temporarily availed themselves of.

Undoubtedly the corporation itself is' liable for all manner of claims against it, arising out of its business, whether for money borrowed, territory acquired, teams bought, merchandise, provisions or produce obtained, or professional services; in short, for whatever may be deemed necessary to the life and prosperity of its business. This is an incident of its artificial existence, as fully recognised in law, as it is of natural persons. Employees of every description have the responsibility of the corporation to look to for payment.

Now it is plain, that when the liability to a limited extent was cast upon the stockholders personally, it was with a view to an additional security to the operatives of the establishment, who were the producers — the life of it. It is generally only to such that liens are extended in the mining districts. For them the law provides additional security; so in this case, the additional security of the individual responsibility of the stockholders is added to that of the corporation, in favor of the employees of the corporation, “ its mechanics, workmen and laborers.”

If this be not the meaning of the words “ employed by the company,” we see no possible use of the enumeration of the grounds of liability of the stockholders. Were it intended to hold them liable generally, enumeration, it is reasonable to suppose, would have been omitted. If the words in themselves were general enough to seem to bear the construction contended for, we are admonished by these considerations that they were not so intended. Generality of expression in Acts of Assembly, as in contracts, is often restricted by regard to the subject-matter to which it has been used: Commonwealth v. The Councils of the Borough of Montrose, 2 P. F. Smith 391.

The learned judge of the Common Pleas was right therefore, we think, in holding as he did, that the charge for hauling slate, the party using his own team and contributing his own time, was not embraced by the liability clause quoted. Indeed, I regard it as not within the words at all. The teamster was not strictly either a laborer or workman, but the ruling stands well enough on the general ground suggested. His was labor of the same kind as that performed by the railroad company in transporting the slates to market, and the yardmen who took charge of them on their arrival at their destination. These parties were independent of the corporation altogether, and cannot be regarded as employees at all. All this is true of the wagon-maker’s bill. He was not the mechanic of the corporation. His was an independent business under his own control and option, and he was no more entitled to avail himself of the stockholders’ liability, than the horse-shoer, or the ordinary shoemaker, who might furnish shoes worn by .the workmen and laborers. And so of materials furnished.. That of course has reference only to such as form part or portions of the products of the establishment. Without injustice to the stockholders, we cannot hold to the general liability clause against them, and yet it is to be regretted, if loss ensue to individuals, because the corporation may be unable to pay them their dues. This, however, is the fault of the legislation on the subject. For the reasons given these judgments must be affirmed.

Williams, J.

I concur in the construction given to the act in these cases, except so far as the opinion decides that lumber furnished for the erection and construction of a derrick used in hoisting slate from the quarry, and powder and fuse used in blasting the slate, are not “materials,” within the meaning of the act for which the stockholders are individually liable.

In the other cases judgment was entered November 12th 1872.

Per, Curiam. Our views of the liability of stockholders in this corporation have been pretty fully explained in the case of Moyer v. The Pennsylvania Slate Company et, al., besides which, and the opinion of the learned judge below in the case stated, embracing all the foregoing suits, nothing further is needed to show that the judgments entered therein must be

Affirmed.


author: Sharswood, J.

text:
    Holl versus Deshler.
    1. Construction of a statute must be made on the whole; not on disjointed parts.
    2. In order to avoid a preference to a creditor under the Bankrupt Law by one in contemplation of bankruptcy, the preference must be within four months before filing the petition for adjudication.
    3. "Where the transfer is to a stranger the act may be avoided if the petition is within six months.
    4. The provision in the 39th sect, for recovering hack by the assignee, money, &e., paid, &c., by the bankrupt must be construed in consistency with the 35th sect., with reference to a creditor and stranger respectively.
    March 19th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Lehigh county: No. 822, to January Term 1872.
    This action was assumpsit, and was brought September 22d 1868, by H. 0. Longenecker, assignee in bankruptcy of George L. Ruhe, against D. J. E. Deshler. Longenecker having died, B. E. Holl was appointed assignee in his stead, and was substituted as plaintiff in this record.
    On the 2d of April 1867, Ruhe confessed a judgment for $125 to Deshler, who was his creditor, for the purpose of securing a debt of that amount. An execution was issued on the judgment on the same day Ruhe’s goods were sold, the money made and paid to Deshler.
    On the 1st of October 1867, creditors of Ruhe filed a petition in the United States District Court for the Eastern District of Pennsylvania, praying that Ruhe might be adjudged a bankrupt, the confession of the judgment to Deshler being the ground of the adjudication.
    This suit was brought to recover the money received by Deshler under his judgment. The court rejected evidence by the plaintiff that the defendant had reasonable cause to believe that a fraud on the bankrupt law was intended, that he knew Ruhe was then insolvent, and the judgment was confessed for the purpose of procuring the property of Ruhe to be taken on legal process in order to give Deshler a preference; and sealed a bill of exceptions.
    Under these facts the court (Longaker, P. J.), on motion of the defendant, directed a nonsuit, on the ground that the petition to have Ruhe adjudged a bankrupt was filed more than four months after the confession of judgment. This and the rejection of plaintiff’s offer of evidence were assigned for error, on the removal of the record by the plaintiff to the Supreme Court.
    The 35th section of the bankrupt act of March 2d 1867, enacts :—
    “ If any person, being insolvent, or in contemplation of insolvency, within four months before the filing of the petition by or against him, with a view to give a preference to any creditor, or person having a claim against him, or who is under any liability for him, produces any part of his property to be attached, sequestered, or seized in execution, or makes any pledge, assignment, transfer or conveyance of any part of his property, either directly or indirectly, absolutely or conditionally, the person receiving such payment, pledge, assignment, transfer or conveyance, or to be benefited thereby, or by such attachment, having reasonable cause to believe such person is insolvent, and that such attachment, payment, pledge, assignment or conveyance is made in fraud of the provisions of this act, the same shall be void, and the assignor may recover the property, or the value of it, from the person so receiving it, or so to be benefited.”

      “ And if any person being insolvent, or in contemplation of insolvency or bankruptcy, within six months before the filing of the petition by or against him, makes any payment, sale, assignment, transfer, conveyance or other disposition of any part of his property to any person who then has reasonable cause to believe him to be insolvent, or to be acting in contemplation of insolvency, and that such payment, sale, assignment, transfer or other conveyance, is made with a view- to prevent his property from coming to his assignee in bankruptcy, or to prevent the same from being distributed under this act, or to defeat the object of, or in any way impair, hinder, impede or delay the operation and effect of, or to evade any of the provisions of this act, the sale, assignment, transfer or conveyance shall be void, and the assignor may recover the property, or the value thereof, as assets of the bankrupt.”
    Section 39th declares that fraudulent transfers and preferences, such as are described in the 35th section (amongst other acts), shall be acts of bankruptcy, and that the debtor shall be adjudged a bankrupt on the petition of creditors, if filed within six months of the act of bankruptcy, “ and the assignee may recover back the money or other property so paid, &c., contrary to this act, provided the person receiving such payment, &c., had reasonable cause to believe that a fraud on the act was intended, or that the debtor was insolvent, &c.”

      T. B. Metzger and E. Gr. Schwartz, fpr plaintiff in error, referred to 85th and 39th sections of the bankrupt law.

      E. Harvey and E. Albright, for defendants in error.
    The first clause of the 35th section refers exclusively to creditors, or those liable for the debtor: Hood v. Karper, U. S. C. C. East. Dist. Penn., Legal Intelligencer, October 27th 1871; Bean v. Brookmire, U. S. C. C. Missouri, 4 N. B. R. 58. The payment, &c., mentioned in the 39th section must be within four months of the petition: Scammon v. Cole, U. S. C. C. Maine, 5 N. B. R. 259. All parts of a statute must be construed together: 1 Bl. Com. 89; Bonham’s Case, 8 Rep. 232. Although the confession was within six months if not within four, it cannot be impeached: Sawyer v. Turpin, U. S. D. C. Mass., 5 B. B. R. 339; Kohlsaat v. Hoguet, U. S. D. C. N. Y. Id. 159; Harvey v. Crane, U. S. C. C. Ill., Id. 221; Maurer v. Franks, Legal Intell., March 17th 1871; Vogle v. Lathrop, 4 N. B. R. 146.
    May 13th 1872
   The opinion of the court was delivered, by

Sharswood, J.

Ex antecedentibus et consequentibus fit optima interpretatio is one of the most important canons of construction. Every part of a statute should be brought into action in order to collect from the whole one uniform and consistent sense, if that may be done; or, in other words, the construction must be made upon the entire statute, and not merely upon disjointed parts of it: Broom’s Legal Maxims 513. “It is the most natural and genuine exposition of a statute,” says Lord Coke, “to construe one part of the statute by another part of the same statute, for that best expresseth the meaning of the makers:” Co. Litt. 381 a. It is clear by the 35th section of the Bankrupt Law — Act of Congress, approved March 2d 1867 — that in order to avoid a preference by a person being insolvent, or in contemplation of insolvency —the person receiving such preference having reasonable cause to believe that such person is insolvent, and that such preference is in fraud of the provisions of the act — such preference must have been within four months before the filing of the petition by or against the bankrupt. There are two classes of cases referred to in that section — preferences to creditors as to which the limitation is four months — and transfers to strangers as to whom the period is six months: Bean v. Brookmire, U. S. C. C. of Missouri, 4 National Bankruptcy Register, § 8. When, therefore, the 39th section, which enumerates and describes what shall be deemed acts of bankruptcy — after declaring any fraudulent preference or transfer, such as described in the 85th section, to constitute an act of bankruptcy — adds that “ if such person shall be adjudged a bankrupt, the assignee may recover back the money or other property so paid, conveyed, sold, assigned or transferred contrary to this act,” it must be construed so as to be consistent with the 35th section — namely, provided the petition be filed within four months in the case of a preference to a creditor, or within six months in the case of a transfer to a stranger. It is evident that to give any other construction to the 39th section would be to strike out the limitation altogether from the 35th section. The 39th relates to the debtor principally, if not altogether; and when the clause in regard to suit by the assignee is introduced, it was altogether unnecessary to repeat the limitation which had been clearly'expressed in the preceding section. That this limitation exists is assumed in Scammon v. Cole, U. S. C. C. Maine, 5 Nat. Bankr. Reg. 257, where Mr. Justice Clifford, in a case before him involving the validity of a mortgage given by the bankrupt to secure a precedent debt, states that in order that the transaction may fall within the inhibition of the law, it must appear “ that the payment, pledge, assignment, transfer, or conveyance was made within four months before the filing of the petition by or against the bankrupt, and with a view to give a preference to some one of his creditors, or to a person having a claim against him, or who was under some liability on his account.” We are of opinion, therefore, that there was no error in the rulings of the learned judge below.

Judgment affirmed.


author: Agnew, J.

text:
    Fry’s Election Case.
    1. Students at a college living at the place in which it is located, whether supported by themselves and emancipated from their fathers' families, with no intention to return to their home, or supported by their parents, who visit their home, in vacation, and may or may not return after graduating, have not such residence as will entitle them to vote in the district where the college is.
    2. Under the constitution and election laws, state and district residence are the same.
    3. “ Resident ” means one who has a permanent abode; it does not include one sojourning temporarily, or for some special purpose.
    4. Removal without intention permanently to reside elsewhere will not lose residence; nor will intention to remove permanently not followed by actual removal acquire it.
    5. Residence under Art. 3, sect. 1, of the Constitution is, that place where the elector makes his permanent or true home, his principal place of business, and his family residence, where he intends to remain indefinitely and without present intention to depart.
    6. The question of residence and authorities extensively examined and discussed in this case.

      March 19th 1872.
    Before Thompson, C. J., Agnew, Sharswood and Williams, JJ.
    Certiorari to the Court of Quarter Sessions of LeMgh county: No. 86, to January Term 1871.
    This case was argued at Harrisburg May 13th 1872.
    The proceedings in this case were commenced by the petition of citizens of the Second Ward in the city of Allentown, contesting the election of certain persons returned as elected members of the common council of that city.
    The parties afterwards agreed on the following ease stated:—
    It is admitted that at the municipal election in the Second Ward of the city of Allentown, held October 11th 1870, George B. Both received 223 votes for the office of common council; George Pry received 218 votes for said office ; that John Nonnemacher received 208 votes for said office; and Eli J. Saeger received 211 votes for said office; that the election officers returned that the said George B. Both and George Pry were elected; that two petitions were filed in due form of law in the Court of Quarter Sessions — one alleging that said Eli J. Saeger was elected instead of said George Pry to said office, — the other alleging that said John Nonnemacher was elected instead of said George B. Both to said office; that said George Pry and George B. Both filed their respective answers to said petitions, admitting that the persons named in the petition, except one, did vote; that the following named persons did vote for said George Pry and said George B. Both, to wit, J. A. Schaffer, and ll others.
    It is further admitted that the said voters are students at Muhlenberg College, an institution of learning located in said ward; that they áre citizens of the state of Pennsylvania; that they claimed that their residence was in said college, where they have lived from one to three years; that they came to Allentown from other counties for no other purpose than to receive a collegiate education, but intended to leave after graduating; that they were assessed and paid taxes before said election.
    It is further admitted that these students are divided into two classes, as follows:—
    The Pirst Class : Those who support themselves, or are assisted pecuniarily by persons other than their parents, are emancipated from their fathers’ families, have left the home of their parents, and never intend to return and make it a permanent, abode. In this class are S. W. Kuhns, and four others.
    The Second Class: Those who are supported by their parents, visit their parents’ home during vacation, and may or may not return there after graduating.
    It is further admitted that of the votes cast for said John Nonnemacher and Eli J. Saeger there are three, those of J. H. Neiman, and two others, also students at said college, who claimed residence in said ward; that t]iey did not intend to remain here when they came; that they came to receive a collegiate education, and leave after they graduate.
    The legality of said votes is disputed, and the question as to the legal effect thereof is submitted as a matter of law for the court. If the court should be of the opinion that the persons named, or any of them, are legal voters, then their votes are to be allowed and counted in favor of the party for whom they were cast. All of said votes which, in the opinion of the court, are illegal, are to be cast out, and then the court to decree in favor of the parties having the highest number of votes.
    On the 5th of June 1871, the court (Longaker, P. J.) made a decree declaring Eli J. Saeger elected, and the certificate of election theretofore issued to Fry to be void.
    On the removal of the record by Fry to the Supreme Court, this decree was assigned for error.
    The charter of the chy of Allentown, approved March 12th 1867, sect. 4, provides: “ That the citizens of said city who are otherwise qualified voters under the laws of this Commonwealth, who shall have resided within the bounds of said city at least six months immediately preceding the election,.” shall meet, &c.

      J. W. Wood and P. J. More, for certiorari,
    referred to art. 3, § 1, Const. of Pennsylvania; Election Law, July 2d 1839, §§ 66, 67, Pamph. L. 532, 1 Br. Purd. 519, pl. 44, 45. The apparent or avowed intention of constant residence, not the manner of it, constitutes the domicil: Guier v. O’Daniel, 1 Binney 349; Graham v. Com’th, 1 P. F. Smith 258; Sears v. Boston, 1 Metcalf 250; Miller’s Estate, 3 Rawle 312; Thorndike v. Boston, 1 Metcalf 242; Putnam v. Johnson, 10 Mass. 487; Granby v. Amherst, 7 Id. 1.

      R. P. Wright, Jr., P. Harvey and J. B. Stiles, contó,
    referred to same article and section in the Constitution, and sections of Act of 1839; also section 63, 1 Br. Purd. 548, pl. 41. Residence is synonymous with domicil: Cooper v. Galbraith, 3 W. C. C. R. 546; Crawford v. Wilson, 4 Barb. S. C. 505; Chase v. Miller, 5 Wright 404; 1 Bl. Com. 59; Opinion of the Judges, 7 Mass. 523; McDaniel’s Case, 3 Penna. L. J. 315; Kneass’s Case, 2 Parsons 581.
    A domicil is where a person has fixed his habitation without any permanent intention of removing therefrom: Crawford v. Wilson, 2 Barb. S. C. 519; Matter of Wrigley, 8 Wend. 142; Phillimore, Law of Dom. 13; Frost v. Brisbin, 19 Wend. 11; Green v. Wyndham, 18 Maine 225. The intention which gives domicil is an unconditional intention to stay always: The Venus, 8 Crunch 290; U. S. v. Penelope, 2 Pet. Adm. 450; White v. Brown, 1 Wall. Jr. 217; Guier v. O’Daniel, 1 Binn. 349, n.; Casey’s Case, 1 Ash. 126; State v. Daniel, 44 N. H. 383; Still v. Woodville, 38 Miss. 646; Jennison v. Hapgood, 10 Pick. 77; Horne v. Horne, 9 Ired. 99; Graham v. Public Adm’r., 4 Bradf. (N. Y.) 127; De Bonnaval v. De Bonnaval, 1 Curteis 856; Vattel, Law of Nations, B. 1, ch. xix., § 218; Phillimore on Dom. 148; Love v. Cherry, 24 Iowa R. 205; Folger v. Slaughter, 19 La. An. 323; Mears v. Sinclair, 1 West Va. 185; Matter of Fitzgerald, 2 Caines 317; Johnstone v. Beattie, 10 Clark & F. 129; Moorhouse v. Lord, 10 H. L. Cas. 285; Webster’s Works, vol. vi., p. 520. If a person accepts an office which requires that he reside at a particular place, that place is his domicil: Munroe v. Douglass, 5 Madd. 379; Code Civil Act 106-107; Abington v. North Bridgewater, 23 Pick. 176; The State v. Ross, 3 Zab. 527: Ihsam v. Gibbons, 1 Bradford 70. A student of a college does not change his domicil by his occasional residence at the college: Granby v. Amherst, 7 Mass. 1; Kilham v. Ward, 2 Id. R. 236; Harvard College v. Gore, 5 Pick. 374; Jennison v. Hapgood, 10 Id. 98. Going to a public institution and residing there solely for the purpose of education, would not, of itself, give a right to vote there, because it would not necessarily change the domicil: Opinion of the Judges, 5 Met. 589; Horne v. Horne, 9 Ind. 99.
    July 3d 1872,
   The opinion of the court was delivered, by

Agnew, J.

This cause comes before us upon a case stated, to determine whether certain students at Muhlenberg College in the Second Ward of the city of Allentown, who voted at a municipal election held in that ward on the 11th of October 1870, were legal voters. The question turns wholly upon their residence, the students being otherwise duly qualified voters. The case states— “ that they claimed that their residence was in said college, where they have lived from one to three years ; that they came to Allentown from other counties, for no other purpose than to receive a collegiate education, but intended to leave after graduating.” They consisted of two classes, to which reference will be made hereafter. The charter of Allentown requires the electors, in addition to prescribed qualifications, to be citizens “ who. are other-, wise qualified, under the laws of this Commonwealth” (Pamph. L. 1867, p. 389). This sends us at the outset to the first section of the third article of the state Constitution. The portion relating to residence is as follows: “ In elections by the citizens, every white freeman of the age of twenty-one years, having resided in this state one year, and in the election district where he offers to vote ten days immediately preceding such election * * * shall enjoy the rights of an elector.” To determine the true residence of these students, we must begin by ascertaining the meaning of the term “ resided,” in the Constitution. The first thing in the section striking the attention is, that the single word “resided,” qualifies, without reiteration, both the one year’s residence in the state and the ten days’ residence in the district. Precisely the samé form of expression is repeated in the proviso as to citizens between twenty-one and twenty-two years of age ; the same words “ resided” again, and without repetition, qualifying the state and district residence. The qualification is evidently of like character in the clause relating to-qualified voters removing out of the state, who have returned and resided therein six months, and who have resided in the election district as aforesaid. It is obvious, therefore, that the state residence and the district residence are of the same nature, and whatever is necessary to constitute the one, is essential to define the other; the only difference being in their time of duration. The language of the section, thus plain in itself, is rendered completely certain by the history of the introduction of the district residence by the Constitutional'Convention of 1837-38. The tax qualification was a subject of extended debate in the committee of the whole on the third article beginning on page 484, vol. 2, of the Debates, and ending on page 133 of the 3d vol. ; some members opposed the tax qualification as restrictive, while others favored it, not only because taxes were a proper contribution by the elector to the support of the state, but were necessary to identify the voters, by means of the registration and assessment of the taxables. Some who opposed a tax qualification, advocated a registry of voters in lieu, and referred to the recent registry law for Philadelphia city and county, which was then a subject of bitter partisan controversy. Its purpose was alleged to be to prevent frauds by <£ colonizing” or bringing voters into the precinct immediately on the eve of an election. Much was said therefore on the subject of fraudulent voting. This it is to be presumed led Mr. Mann when the amendment embracing the tax qualification was adopted, to move further to amend by adding : but no person shall be entitled to vote except in the district in which he shall actually reside at the time of the election.” Ilis amendment was agreed to. Yol. 2, Debates, pp. 560, 561. It did not, however, end the discussion upon the registry law, the tax feature and fraudulent voting. See vol. 3, pp. 30 to 133. But it became evident to the majority that some provision, beside the tax feature, was necessary to identify electors and prevent fraudulent voting, and it led to Mr. Merrill’s proposition requiring a district residence of thirty days: vol. 3, p. 134. It was adopted, fixing the residence at ten days, after voting upon the term of sixty, thirty and twenty days: pp. 134 to 143. This, however, fell along with the other amendments to the report, by a majority of one vote. The ten days’ residence was again proposed on second reading and adopted : Debates, vol. 9, pp. 297 to 320. The whole section as finally amended and adopted will be found at pp. 197-8, vol. 12. Thus an actual fixed residence and home, as the means of identifying the elector, and securing the public against frauds, was the evident purpose of the district residence. The same view of home or domicil is stated by Woodward, J., in Chase v. Miller, 5 Wright 418.

The state and district residence thus being of the same nature, it is proper now to exhibit that nature more clearly, in order to define it properly. The absence of judicial decision by this court on the point, makes it necessary to examine it in the light of other provisions in the Constitution, and of judicial determinations in analogous cases, as well as in reference to the purpose of the qualification itself. The Constitution provides that senators and representatives shall be inhabitants of the state, the latter three and the former four years; and the last year, inhabitants of the districts from which they are chosen. ■ So the governor must be an inhabitant of the state seven years. Judges of the Supreme Court shall reside within the Commonwealth, and other judges, while in office, within the district or county for which they were elected. It is evident that the term “ inhabitant” or “ resident” in these clauses cannot mean one sojourning temporarily, or for some special purpose, but refers to one who has a permanent abode; the domicil of the senator, representative, governor or judge. “ Inhabitant” (says Webster), “ a dweller; one who dwells or resides permanently in a place.” The judges of this court sitting in Pittsburg for weeks, at the time of general election, though in the prosecution of their business, yet away from home, have never dreamed they had a right to vote there. No one doubts that one domiciled in another state, but resident here for a special purpose of business or pleasure, is ineligible to election as a senator, representative, governor or judge. It is equally clear, that the electors of the state are those who have their Homes within it, and not elsewhere. Their domicil is there, and their home is the place where they permanently reside, and to which they intend to return when away from it. It is also clear, that one domiciled in another state cannot be an elector here, though he be resident here for some temporary purpose, or on some special business, and though his stay may be prolonged upward of a year. Therefore, when the Constitution declares that the elector must be a resident of the state for one year, it refers beyond question, to the state as his home or domicil, and not as the place of a temporary sojourn. This being the character of the state residence, it defines, as we have seen, the district residence; for both are members of the same sentence and are qualified by the same words, “ having resided” without repetition. The elector must, therefore, vote at home, not only in the state, but in the district where his home is. His domicil must be there. He may change his domicil within the state, but in order to vote in another district, he must have made the change at least ten days before the election. If he have a fixed and permanent home in one district, he cannot, because dwelling temporarily in another, in the prosecution of his business, vote in the latter. The purpose of the district residence, as we have seen, is not only to identify the elector; but to prevent frauds in elections. But if because he is engaged in sdme business there, he may vote in the district where he is so employed for ten days, what is to prevent his voting at home and in his proper district? In these days of swift travelling, one voting in the morning one hundred miles away from home, where he is temporarily sojourning, might vote again at home before night. He has not lost his domicil, where his family and chief business are, by his temporary sojourn on some special employment.

And again this idea of home or domicil as conveyed by the word “resided” in the Constitution, is strengthened by the origin and use of the term freemen, the noun with which it is coupled. Thus in the laws agreed upon by William Penn on the 5th of May 1682, the second section provides: That every inhabitant in the said province, that is or shall be a purchaser of one hundred acres of land, or upwards, his heirs or assignees, and every person who shall have paid his passage and taken up one hundred acres of land at one penny per acre, and have cultivated ten acres thereof, and every person that hath been a servant or bondsman, and is free by his service, that shall have taken up his fifty acres of land and cultivated twenty thereof, and every inhabitant, artificer or other resident in the said province, that pays scot and lot to the government, shall be deemed and accounted a freeman of the said province, and every such person shall and may be capable of electing or being elected representatives of the people in Provincial Council, or General Assembly in said province.” A freeman was an allodial proprietor; the opposite of a vassal or feudal tenant ; a free tenant or freeholder as distinguished from a villein. In the Constitution of 1776, he was described as one “ having a sufficient common interest with, and attachment to the community,” and as having a “right to elect officers and to be elected to office.” He was also one who was liable to military service. (See my opinion in the case of McCafferty v. Guyer, 9 P. F. Smith 115 to 119 for an historical account of the freemen of the province and state as electors.) The traditionary freeman as thus portrayed was a stable person, a farmer, a resident artificer or mechanic, or other fixed inhabitant, having a community of interest, where he resided, paying to the support of government, and doing military service. In view of the traditionary character of a freeman, when the Constitution of 1790 was framed, the word “ resided” was introduced into the third article to define his residence as an elector. The provision reads thus : “ In elections by the citizens, every freeman of the age of twenty-one years, having resided in the state two years next before the election, and within that time paid a state or county tax, and which shall have been assessed at least six months before the election, shall enjoy the rights of an elector.” . Two things are noticeable here — first, that the term “ freeman” is not defined, but is used as a well known phrase; and secondly, that the long period of residence and assessment denote permanency of residence.

In the Constitution as amended in 1838, though this section was much discussed and altered, this language was retained without alteration, the term of time only being reduced. The nature of the residence remains the same therefore, and its characteristics being unaltered, it strengthens the interpretation that “ residence” in the Constitution means home, fixed abode, domicil of the elector, as distinguished from a place of temporary sojourning.

In his Conflict of Laws, § 41, Mr. Story says: “By the term ‘ domicil’ in its ordinary acceptation, is meant the place where a person lives or has his home. In a strict legal sense that is properly the domicil of a person where he has his true, fixed, permaneiit home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” “ Two things (he says) must concur to constitute domicil — first, residence ; and, secondly, the intention of making it the home of the pai’ty. There must be the fact and the intent:” Id. §44. See Pfoutz v. Comford, 12 Casey 422. Says Judge Rush: “ The apparent or avowed intention of constant residence, not the manner of it, constitutes the domicil:” note in 1 Binney 351. “It may be defined (he says) to be a residence at a particular place, accompanied with positive or presumptive proof of continuing it in an unlimited time:” Id.

Undoubtedly (says Judge King), residence is a question of intention. In cases involving it, the inquiry is quo animo the party either moved to or from the state. And upon the solution of this question, depends the fact, whether the petitioner has gained or lost a residence. But before this question can arise an actual removal must have taken place. A mere intention to remove not consummated, can neither forfeit the party’s old domicil nor enable him to acquire a new one. Removal out of the state, without an intention permanently to reside elsewhere, will not lose residence, nor will a mere intention to remove permanently, not followed by actual removal, acquire it: Case of James Casey, an insolvent debtor, 1 Ashmead 126.

These extracts will enable us to understand more clearly the term residence, as denoting that home or domicil which the third article of the Constitution applies to the freemen of the Commonwealth. It means that place where the elector makes his permanent or true home, his principal place of business, and his family residence, if he have one; where he intends to remain indefinitely, and without a present intention to depart; when he leaves it he intends to return to it, and after his return he deems himself at home. It remains now to apply these charaoteristics of residence to the case in hand. The stated case expressly declares that the students referred to in it, came to Allentown from other counties, for no other purpose than to receive a collegiate education, but intended to leave after graduating. It is evident that the college was not their true and permanent home ; their stay there was not to be indefinite, as the place of a fixed abode, until future circumstances should induce them to remove. Their purpose was indefinite and temporary, and when accomplished they intended to leave. They retained their original domicil, for the facts stated show that they never lost it. On this point the authorities are in entire accord. “ The third rule I shall extract (said the Master of the Rolls) is, that the original domicil, or as it is called forum originis, or the domicil of origin, is to prevail until the party not only has acquired another, but has manifested and carried into execution an intention of abandoning his former domicil, and taking another as his sole domicil.” Sir Richard Pepher Arden, in Somerville v. Lord Somerville, 5 Vesey 786. See also 2 Kent’s Com. 431, in note; Story’s Conflict of Laws, §§ 46, 47. This language was adopted by Judge Grier in White v. Brown, 1 Wall. Jr., 217, adding: “A man cannot be considered a vagabond or person without any domicil, for the domicil of origin is not abandoned until a. new one has been intentionally and actually acquired:” Id. 264. See also Judge King’s remarks, supra. And in Lyle v. Foreman, 1 Dall. 480, the defendant was on his way to Fort Pitt, in December 1789, intending to proceed to the Spanish settlements below Natchez, on the Mississippi, when a foreign attachment issued against him. Shippen, president, quashed the attachment, observing: “ That while a man remained in the state, though avowing an intention to withdraw from it, he must be considered an inhabitant, and therefore not the object of a foreign attachment.” See also Miller’s Estate, 3 Rawle 312. In Graham v. Commonwealth, 1 P. F. Smith 257, where the question was, whether a soldier who had been two years out of the state as a volunteer in military service, was “ an inhabitant of the state, or usual resident therein,” under the seventy-seventh section of the penal code, the present Chief Justice said, “his usual residence was not changed by the fact that he obeyed the call of- the President and volunteered to fight for his country at her command. To hold the contrary would be against the spirit of all our legislation. A soldier is regarded as a voter because a citizen of the residence he left before entering the service, and he votes there wherever he may be.”

These principles enable us now to dispose of the first of the two classes into which the stated case divides these students, viz.: “ Those who support themselves, or are assisted pecuni arily by persons other than their parents, are emancipated from their father’s families; have left the home of their parents and never intend to return and make it a permanent abode.” Having, as the case states, come to Allentown for no other purpose than to receive a collegiate education, and intending to leave after graduating, they have not lost their home domicil, and could vote there on returning to it though they should not reenter their father’s house.

Emancipation from their father’s family and independent support, and the leaving of the home belonging to their parents, have not forfeited their own domicil. Their father’s house is not necessarily their home, but the place is where it is. Though not in the bosom of that family, the place of their residence is not lost to them until they have voluntarily changed it and found a new home. Upon the terms of the stated case, it cannot be said they have abandoned their original home, and actually obtained another. The second class needs no comment. They are those students who are supported by their parents, visit their parents’ home during vacation, and may or may not return there after graduating.” It is clear as to both classes the college is not their home. They are not members of the community among whom they sojourn. They have no common interest; do not intend to live with, or to cast their lot among them. They have no proper motive to interfere in their local affairs. On no proper principle of a true residence should the student vote to-day and fasten on the community officers whom the majority do not desire, then graduate to-morrow and be gone.

The great underlying principle of a republic is, that men should be permitted to govern themselves, but not to constrain others. Yet this would be the result of such a shifting vote, which, like the Parthian arrow, pierces as he who casts it flees. There are vague notions of liberty and personal rights, which often impress the mind, and lead it to incline against what may seem to be a restraint. A man is a man everywhere, and the thought is apt to rise, a freeman should vote anywhere. But the only true, wise and rational liberty, founded on the golden rule of doing as one would be done by, and upon the maxim sic utere tuo ut alienum non ¡cedas, is that which is regulated by laws made for the common good.

The rights of all men, the peace of society, and the good government of the state, require that the elector should vote at home, in his proper district where he is known, and among those with whom he has cast his lot, until yielding to circumstances, or to a desire of change, he has chosen voluntarily to abandon his former residence, and actually to gain a new one.

Judgment affirmed.


text:
    Hartman versus Shaffer.
    1. A promissory note imports a valuable consideration.
    2. In a suit on a note, the defence being want of consideration, without evidence to cast suspicion on the transaction, the pecuniary circumstances of the parties are irrelevant, and calculated to mislead.
    3. The evidence in this case sufficient to submit to the jury the question of want of consideration of a note.
    March 19th 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. Agnew, J., at Nisi Prius.
    Error to the Court of Common Pleas of Northampton county: No. 194, to January Term 1872.
    On the 20th of May 1869, Francis Har.tman brought an action of assumpsit against Hannah Shaffer, executrix, &c., of Christian Shaffer, deceased.
    The declaration was on a note signed by the decedent for $4300, dated March 24th 1863, and payable two years after date.
    The cause was tried May 3d 1871, before Longaker, P. J.
    The plaintiff called Cecilia Hartman, his daughter, and granddaughter of the decedent, who, on her examination in chief, testified, that she wrote the note at decedent’s house, her brother Peter and her grandfather were by; her father, grandfather, and Peter calculated the old notes, and then the note was written for $4300, and then the decedent signed it in her presence.
    On cross-examination she said that the decedent’s wife and daughter Hannah were living with him; Hannah was not then at home; the wife was in the other room; the door was closed; she was not called to come in when the note was written; witness did not tell Hannah when she came home; did not tell her or the wife before the decedent’s death; nor her own mother. The decedent died about January 1st 1864, and was then between 91 and 92 years old. The plaintiff lived about two miles away. After witness sat down to write the note they laid two notes down for her to copy from; her father also said she should write the note; they said they had given two old notes, one for $1500 and one for $349. Witness did not see what became of the notes; both gave her the amount of the note; she read the note after it was signed so that both understood it; she read it in English because it was written in English; did not explain it in German; the decedent did not speak English; the family conversation was in German; she did not know what they did with the old notes nor with the new one; Peter came in just as .she was finishing the note and saw the note signed; her father it was who called her to come in; she did not see any money paid by her father to her grandfather; the decedent’s wife died after him.
    Plaintiff called Peter Hartman, his son, who testified that he saw the decedent sign the note under the circumstances stated by Cecilia. He told the widow of the decedent after his death that the note had been signed; did not tell the plaintiff, she and he were not good friends.
    The plaintiff then gave the note in evidence, viz :
    “ Hellertown, March 24th 1863.
    “ tow years after date I prommis to pay Francis Hartman the sum for thousad three hundred dolles for value receive with out defalcation. Christian Schaerer.” .
    [Signature in German letters.]
    The defendant called Solomon Hess and offered to prove by him that he had lent the plaintiff $1500 in 1867; to be followed by proof that when the note was given the circumstances, &c., of the decedent were such as not to require him to have the amount of money for which the note was given; that the circumstances of the plaintiff at and before the note was given were not such as to enable him to lend the amount of money in the note or pay it for the decedent; that the plaintiff as son-in-law of the decedent wras dissatisfied with his will, and that notwithstanding he did not present the note to the executrix for payment, nor inform her of its existence until he brought suit, that being his first demand for payment; that the executrix settled her final account of the estate October 3d 1867; that at the date of the note the decedent and plaintiff were on unfriendly terms; that when the will was read after the death of the testator, the plaintiff asked defendant and others who were present whether the decedent had any debts, that defendant said there were none so far as she knew, and the plaintiff made no reply; that both before and after the date of the note the plaintiff was largely indebted and paying interest.
    The plaintiff objected to the offer of the testimony of Hess, it was admitted and a bill of exceptions sealed.
    Hess testified in accordance with the offer.
    The defendant gave much evidence in detail of the matters proposed to be proved in following up the testimony of Hess.
    He also gave evidence that neither the plaintiff nor his wife were at the decedent’s funeral.
    The will of the decedent was dated January 17th 1863, and proved March 28th 1864. It was read to the family in the presence of the plaintiff and his wife about 30 days after decedent’s death. The final account of the executrix was filed October 3d 1867.
    The plaintiff gave evidence in rebuttal tending to show that he had pecuniary ability to lend the amount mentioned in the note; accounting for the delay in not presenting the note and in bringing suit.
    To the notes of testimony was appended the following:

      “ All the foregoing testimony was received by the court under the first bill of exception, with the same effect as if a special bill of exception had been taken and allowed to eadh offer of testimony.
    A. B. Longaker, Presiding Judge, [n. s.] ”
    The plaintiff’s points were:—
    1. Under all the evidence in the case the verdict must be for the plaintiff.
    2. The evidence given on the part of the defendant constitutes no defence to the plaintiff’s claim.
    3. The jury cannot legitimately infer from the evidence given on the part of the defendant that there was no consideration for the note in suit.
    These points were denied.
    4. The execution of the note by Christian Shaffer and its possession by the plaintiff is primá, facie evidence of a consideration, and that there is no evidence in the cause showing want of consideration.
    The answer was: — The first part of this point is true and affirmed, but the question of want of consideration is a fact for the jury.
    The defendant’s 4th point which was affirmed was:—
    If the jury believe that the plaintiff has failed to-prove a consideration for the note in suit, such failure is a circumstance which the jury may consider in determining whether there was an actual consideration.
    The verdict was for the defendant.
    The plaintiff removed the record to the Supreme Court by writ of error.
    He specified 10 errors to the admission of evidence all assigned in the same manner. The 1st was:—
    “ The court erred in permitting the defendant to prove that the plaintiff had given mortgages in 1829 for $1000, in 1835 for $1400, in 1844 for $1200, and in 1864 for $500.”
    Four other assignments were to the answers of the court to the plaintiff’s points.
    The 15th was the answer to the defendant’s 4th point.

      V. Hilburn and B. J. Fox, for plaintiff in error.
    A promissory note is conclusive evidence of a pecuniary consideration: Edwards on Bills 78, 3111; Hughes v. Wheeler, 8 Cowen 77; Goshen Turnpike Co. v. Hurtin, 9 Johns. 217; Bank of Troy v. Topping, 13 Wend. 569. When the execution was proved and the note given in evidence, the plaintiff was not required to make any further proof until the consideration of the note was impeached by the defendant: Knight v. Pugh, 4 W. & S. 447; Swain v. Ettling, 8 Casey 491; Maples v. Browne, 12 Wright 462.

      O. B. Myers and B. Q-reen, for defendant in error.
    The execution of a note raises only a primd facie presumption, liable to be rebutted: Swain v. Ettling, 8 Casey 491; Byles on Bills 92; Stauffer v. Young, 3 Wright 455; United States v. Price, 2 W. C. C. R. 460.
    May 13th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

The eighth of the rules of this court, adopted at Pittsburg, September 6th 1852, 6 Harris 578, provides that “when the error assigned is to the admission or rejection of evidence, the specification must quote the full substance of the bill of exceptions, or copy the bill in immediate connection with the specification. Any assignment of error not according to this rule will be held the same as none.” This rule has been entirely disregarded in the assignment of errors in this case. There are ten errors assigned to the admission of testimony. There are, however, but two bills of exceptions, neither of which are assigned according to the rule. There was in the first instance an offer of testimony to be followed by other evidence, which was admitted and a bill of exceptions sealed. At the close of the evidence the judge gave a sweeping exception to all the evidence which had been produced by the defendant “ with the same effect as if a special bill of exception had been taken and allowed to each offer of testimony.” Without setting out either of these bills in his specifications of error as ground of complaint the defendant picks out from the whole mass of the testimony ten particulars which he declares to have been irrelevant and inadmissible. Such a mode of assigning errors is manifestly contrary both to the letter and spirit of the rule, and must accordingly be held “ the same as none.”

The real question, however, on the merits of the cause is presented by the remaining assignments — whether there was any evidence given which ought to have been submitted to the jury as tending to make out the defence, that there was no consideration for the note in suit. In every case of a promissory note the prima facies is in this respect in favor of the payee. It imports a valuable consideration. It is also undoubtedly true that without some evidence to cast suspicion upon the transaction — the pecuniary circumstances of the respective parties and their relations to each other would be irrelevant and calculated to mislead the jury: Woods v. Gummert, 17 P. F. Smith 136. But where there is evidence tending to show unfairness, undue influence or fraud, the evidence may take a wide range: Reinhard v. Keenbartz, 6 Watts 93; Kauffman v. Swar, 5 Barr 230; Stevenson v. Stewart, 1 Jones 307. The plaintiff below did not commence his case in the usual way by proof of the signature of the maker of the note but called two witnesses — his son and daughter — to prove its execution. The maker was his father-in-law and a man ninety-one years old. The testimony of the daughter was that her father and grandfather were together, and her father called her in from an adjoining room. They were making calculations — had before them two old notes — whose she does not say — “ they said they had given the old notes one of $1500 and one of $349.” “ She did not recollect to whom they said they had given the old notes.” The father told her to write the note for $4300, which she did and her grandfather signed it. The son Peter testified substantially to the same facts. This was in March 1863. The old man died in January 1864. These witnesses testified and without contradiction by Francis Hartman, who was also examined, that three weeks afterwards when the will of Christian Shaffer was read, he, Francis Hartman, was present and asked Hannah Shaffer, the executrix, whether there were any debts — she replied there were none, and he was silent. The account of the executrix was filed in the Register’s office October 3d 1867, and this suit was brought May 20th, 1869. The note was drawn payable two years after date and was not due therefore until March 27th, 1865. It is true there was no absolute estoppel or bar in all this, but these were circumstances tending strongly to shake the primá facie presumption in favor of the instrument, and therefore enough to allow a wide latitude to be given to the evidence to show from the circumstances and relations of the parties the improbability that any valuable consideration existed for the note. To this is to be added the fact that Christian Shaffer did not speak English; he could understand only a few words; he could not read or write English. The note is written in English but the signature is in German. The granddaughter read it to him in English because as she says it was written in English; but she did not explain it in German. There is here indeed no direct evidence of fraud or undue influence, but it is impossible to say that it was not the question in the cause. No one pretended that Christian Shaffer meant to give this amount of money to his son-in-law Francis Hartman. If the two notes present and upon which they were calculating when the note in suit was signed, were notes of Christian Shaffer held by Francis Hartman and formed the consideration which seems to be the theory of the plaintiff below — for no other consideration was attempted to be shown — they must have been running more than twenty years without payment of interest in order to make the amount of $4300. It can hardly be maintained that it was irrelevant to show that during this period Hartman was borrowing money and mortgaging his farm, and that on the other hand Christian Shaffer was in comfortable circumstances and in no need of borrowing money. His will showed that he had considerable ■real estate which he disposed of among his daughters. We cannot say then that the court below erred in submitting this case to the jury. There was undoubtedly rebutting evidence to all this produced by the plaintiff. It is not our province to weigh this evidence. That was for the jury under the supervision of the court below on a motion for a new trial.

Judgment affirmed.


text:
    Barrett’s Executor’s Appeal.
    1. An assignee for the benefit of creditors, alleging that a judgment of a creditor hid been discharged, obtained an issue to determine the fact; all proceedings to stay, &c. — the jury found for the creditor; a motion for a new trial was made and held under advisement till the assignee’s account should be settled, which being done it was referred to an auditor. The creditor appeared before him claiming the full amount of his judgment, and insisting on his legal rights. The report of the auditor was referred back to him; the creditor appeared again protesting against evidence being heard against the judgment and claiming its allowance. Held, not to be a waiver of his right to have the facts decided in the issue.
    2. The creditor was not bound to demand a new issue, one having been decided in his favor.
    3. It seems that the assignee was precluded from a hearing before an auditor until the issue had been finally determined, and that the court below could not allow him to withdraw the issue without the consent of the creditor.
    March 22d 1872.
    Before Thompson, C. J., Sharswood and Williams, JJ. A&new, J., at Nisi Prius.
    Appeal from the decree of the Court of Common Pleas of Lehigh county: No. 329, to January Term 1872.
    In the distribution of the estate of David A. Smith, in the hands of James Weiler, his assignee, for the benefit of creditors.
    On the 12th of May 1870 two judgments, No. 355 and No. 356, to April Term 1870, for $5000 and $10,000 respectively, were entered in the Court of Common Pleas of Lehigh county, on warrants of attorney in favor of Nathan Barrett against James Smith and David A. Smith.
    On the 16th of May 1870, D. A. Smith assigned all his property for the benefit of his creditors to James Weiler. At the date of the assignment D. A. Smith owned real estate in Lehigh county appraised at $44,055, and jointly with James Smith owned real estate in Lycoming county; D. A. Smith’s interest was appraised at $21,666.67. On the Lycoming county land, subsequent to liens of other parties, Nathan Barrett held mortgages for $5000 and $10,000, being the same debts for which the judgments were entered in Lehigh county. The Lycoming county land was sold by the sheriff for $12,000 on the 25th of August 1870, and after the payment of the preceding liens, $3130.96 were appropriated to Barrett’s $5000 mortgage. Besides these mortgages D. A. Smith was indebted to Barrett on certain notes which were not secured.

      Barrett died in January 1871.
    On the 5th of April 1871, Weiler, the assignee, presented a petition setting forth, amongst other things, that as he believed the whole or a portion of the $5000 and $10,000 judgments had been paid by the purchasers at the sheriff’s sale of the Lycoming county property, by virtue of an agreement made between them and Barrett at or about the time of sale of the said land; the prayer was for an issue to try whether the judgments had been paid, and how much remains due, — all proceedings to stay in the meantime.
    Upon this petition an issue was ordered.
    The allegations of the assignee were, that at the sale of the Lycoming county property, there had been an agreement between the purchasers and Barrett, that if he would not bid against them, and give them time for the payment of their portion of the purchase-money, they would pay him the-amount of his unsecured notes, and also his counsel fees; that these sums amounted to $4000, which should be deducted from the Lehigh county judgments.
    On the trial of the issue the jury found for the plaintiff Barrett, the amount appearing to he due on the judgments, less the money received by him from the proceeds of the sheriff’s sale in Lycoming county, viz: $2213.24 on No. 355, and $10,965 on No. 356. Weiler moved for a new trial, on which the court made the following order:—

      “ June 28th 1871, argued and opinion to be reserved until distribution be made in the assigned estate, if an account shall be filed in a reasonable time.”
    The assignee filed' an account, August 15th 1871, which, on the same day, was referred to John Rupp, Esq., as auditor to “audit and resettle, and if necessary make distribution.”
    The auditor sat under his appointment on the 16th and 28th days of October 1871, and amongst other things reported:—
    “ Messrs. Bridges and Stiles on behalf of the estate of Nathan Barrett claimed the amount of judgment, Nos. 355 and 356, April Term 1870; No. 355 for $2213.24, and No. 356 for $10,965, with interest from June 14th 1871. The accountant’s counsel called on Messrs. Bridges and Stiles, attorneys for said estate of Nathan Barrett, to say whether they would agree to submit to the auditor for decision, the questions raised in the feigned issues by the Court of Common Pleas in said judgments, or whether they would insist that they should be disposed of by the Court of Common Pleas. Messrs. Bridges and Stiles replied that they claimed the full amounts of said judgments out of the fund in the hands of the assignee already having judgments in the Common Pleas, and that they would stand upon their legal rights. Accountant’s counsel then asked to have a certain amount set aside sufficient to cover the amount of said judgments with interest and costs, which is done by the auditor, the same to abide the final disposition of said feigned issues by the court, and the auditor set aside $17,000 to meet the claims of the Barrett estateand reported distribution of the balance.
    Barrett’s executors filed exceptions to the auditor’s report, that he had not awarded to them the amount of the judgments.
    On the 7th of November 1871, the court on the exception's referred the report back to same auditor “ generally.” By the auditor’s minutes it appeared thus :—

      “ Messrs. Wright and Erdman, counsel for assignee and creditors, object to the allowance of judgments No. 355 and No. 356 of April Term 1870, Nathan Barrett against James Smith and David A. Smith in the Court of Common Pleas of Lehigh county, for $5000 and $10,000 respectively, and propose to show that plaintiff received from the sheriff of Lycoming county out of the proceeds of sale of real estate of David A. and James Smith in August 187 0, the sum of $3130.96, as well as the further sum of $4000, by an arrangement between Nathan Barrett, John F. Cottrell and Samuel Miller for and on account of the said judgments.
    “ Messrs. Bridges and Stiles appear for the estate of Nathan Barrett, deceased, for the purpose of objecting and protesting against all evidence concerning the judgments mentioned in the offer, and claim the full amount of said judgments with interest, and decline to submit any question to the auditor, except the allowance of said judgments. In an issue in the Court of Common Pleas of Le-high county a verdict was rendered for the following sums on said judgments, to wit: June 14th 1871, verdict for $2213.24, and same day, verdict for $10,965, with interest thereon from date of verdict and costs. The question of new trial is pending in court in said cases, and therefore counsel for Barrett’s estate object to all evidence under the offer of counsel for assignee and creditors ; and further allege that while the question of new trial is yet in the hands of the court and undisposed of, the auditor has no jurisdiction ; and further allege generally that the auditor has no jurisdiction except to allow and report the amount of the verdict on said judgments in full, with interest and costs. A great number of witnesses were called by the accountant — they were objected to severally by the counsel for Barrett’s estate, and cross-examined under protest.
    The evidence all related to the agreement alleged to have been made between Barrett and the purchasers at the sheriff’s sale in Lycoming county. The auditor concluded, saying:—
    “ Taking all the evidence in this case and all the surrounding circumstances of the case together, the auditor finds as a fact that there was an arrangement or understanding between Nathan Barrett and Francis S. Fisher, the agent of Miller & Cottrell, before this sheriff’s sale, that Barrett should not bid on this mill property, but should let Fisher buy it in, and should then let his money stand for one year, in consideration of which Miller & Cottrell were to pay Barrett’s lawyer fees and expenses, and to pay or secure his notes against D. A. Smith and James Smith; that Barrett did not bid on the property, and that after Fisher, as agent for Miller & Cottrell, had become the purchaser of the property ; this arrangement was consummated by Miller & Cottrell ■paying $800 for Barrett’s lawyer fees and expenses, apd giving him their mortgage on this property, accompanied by a bond and warrant for $6500, being his share of the proceeds of the sheriff’s sale, and the $3200 notes with the’ interest due thereon. The next question then is, what is the effect of this ? It is very plain that by this arrangement Barrett made nearly if not quite $4000. The defendants had a -right to have their property sold for the highest price it would bring at a fair and open public sale, and any combination between Barrett and Fisher to prevent bidding on the property, was unlawful and a fraud upon the defendants. Had the facts of this ease been known at the time of the sale, as they are now developed, it would have been good ground to set the sale aside. But that not having been done, can the assignee and creditors of D. A. Smith now take advantage of it, and have the amount thus secured to Nathan Barrett deducted from his judgments ? This case seems to fall within the principle of the case of Young v. Stone, 4 W. & S. 45. In that case the Supreme Court say that the ‘ amount of money realized by the plaintiff in a judgment by means of a sheriff’s sale of land, must be credited to the defendant, whether it be procured by a private contract with the purchaser or bid at the public sale.’ If this be sound law, then whatever sum Barrett actually realized out of this sheriff’s sale, either out of the $12,000 actually bid for the property at the sale, or by means of the private arrangement between him and Fisher, must be credited to the defendants on Barrett’s mortgages on this property, and it is a satisfaction of these judgments for that amount. * * * Hence it will appear that on judgment No. 355 there is now actually nothing due, and on judgment No. 356 there is due the sum of $9,684.88.
    Barrett’s executors filed exceptions to the report of the auditor, and also made the following application January 3d 1872:—
    “ The counsel for the estate of Nathan Barrett, deceased, claim that issues are now pending in this court to ascertain the amount due upon the judgments of Nathan Barrett against David A. Smith, and ask the court to decide the motion for new trials, and we ask that all the questions involved in this controversy as to the amount due on said judgments be tried in said issue, or to grant a new issue upon the report of the auditor to try the same.
    “February 5th 1872, the motion was denied by the court, the exceptions to the auditor’s report dismissed, and the report confirmed.”
    In his opinion confirming the report, Longaker, P. J., said:— * * “ Under the reference back, Messrs. Bridges and Stiles again appear for the estate of Nathan Barrett and protest against the admission of evidence to impeach the judgments of Barrett or to show a satisfaction of them in part, and object to the jurisdiction of the auditor while the issues remain undecided in the Common Pleas, but while thus protesting and objecting they demand a distribution of the fund so as to pay the judgments in full, denying to the auditor all right to inquire how much may be due on their demands. While such a protest presents a most strange anomaly in jurisprudence, it becomes a most convenient device, by which the payment of an unjust demand may be secured; it is an arrogant demand for payment, with a persistent refusal to permit an inquiry as to how much is due upon the claim presented. The law, however, tolerates no such arrogance. The presentation of the claims and a demand for payment, is totally inconsistent with the protest and objection, and the auditor therefore had a clear right to disregard them, and to treat the claim as presented for distribution, and to proceed to admit the testimony of the assignee to show that there was a pro tanto satisfaction. It will be remembered that the issues in the Common Pleas were instituted by the assignee, and I take it, that while it is the right of all parties to have a question of fact tried by a jury, he who does not ask for an issue cannot avail himself of the action taken by his adversary. The assignee had a clear right to insist on a trial of the issues, but he had also as clear a right to waive it; and having assented to a hearing before the auditor of the same subject-matter involved in the issues, he cannot now demand a trial in the Common Pleas. Had the issue of fact before the auditor been found against him, he could not invoke the verdicts found to set aside the finding of the auditor.. The absolute confirmation of the auditor’s report would have operated as a decree to enforce payment of the judgments in full. If the pending motions for a new trial are made absolute, the verdicts on the issues are set aside, and the estate of Nathan Barrett will receive no more than is allowed in this distribution. Again, if a new trial shall be granted, it will be competent for the assignee to ask leave to withdraw the issues framed. Whether that can be done, or not, need not now be decided.
    “ It is undoubtedly well established by many decisions, that it is the plain right of every litigant to have questions of fact tried before a jury, but while such is his right he may waive it by submitting to the decision of an auditor. Had the exceptant refused to submit his claims to the auditor, and demanded in the Common Pleas an issue to try the disputed facts, it would have been the piain duty of the court to have awarded the issue, or else to have granted a new trial and proceeded to a second trial on the issues already framed. As it is, he made his election to submit his judgment to the auditor for allowance, and the auditor having passed upon the disputed facts, it is now too late to ask the Court of Common Pleas to proceed on the issues pending or to grant new issues, as is asked for by the motion of January 30th 1872.” * *
    On the same day the court made the rule for a new trial absolute, saying:—
    “We are satisfied that there was some agreement or understanding prior to or contemporaneous with the sheriff’s sale, tacit though it may have been, that the purchasers were to assume the payment of certain promissory notes, and as that fact has been found subsequently by an auditor, upon testimony more explicit than that which was submitted to the jury, and as the auditor’s report has been confirmed, there is an additional reason why a new trial should be granted.”
    The executors of Barrett appealed to the Supreme Court.
    They assigned for error:—
    1. Deciding that the auditor had jurisdiction in the matter of the judgments, inasmuch as they were liens on Smith’s land before the assignment.
    2. Deciding that the auditor had jurisdiction during the pend-ency of motions for a new trial.
    3. Referring back the first report of the auditor.
    5. Denying the request of the executors to decide the motion for a new trial on the issue, or to grant a new one on the report of the auditor.
    The remaining errors related to the findings of facts by the auditor.

      J. W. ITunsielcer, J. B. Stiles and S. A. Bridges, for appellants.
    The accountant could not withdraw the issue, although granted on his own application: McCredy v. Fey, 7 Watts 496; Bank v. Coryell, 9 W. & S. 153. An auditor cannot go behind a judgment: Edwards’s Appeal, 16 P. F. Smith 89. An issue should have been awarded on the executor’s application, which was not too late: Trimble’s Appeal, 6 Watts 133; Lauman v. Yonng, 7 Casey 310.

      B. B. Wright, Jr., O. J. Erdman and B. E. Wright, for appellees.
    A party cannot take the chances of a favorable finding of facts by an auditor, and when the report was adverse apply for an issue; the application is too late if made after the result of the hearing before the auditor is ascertained: Bradford’s Appeal, 5 Casey 513; Sharp’s Appeal, 3 Grant 260; Barnes’s Appeal, 18 Leg. Int. 156; Seip’s Appeal, 2 Casey 176; Benson’s Appeal, 12 Wright 159. An auditor may hear evidence and determine whether a judgment has been discharged since its entry: Borland’s Appeal, 16 P. F. Smith 470.
    May 13th 1872,
   The opinion of the court was delivered, by

Sharswood, J.

We do not propose to determine the merits of this controversy — the questions of fact and law as discussed and disposed of by the auditor and court below. We fail to see, as the learned judge saw, any waiver by the appellants of their right to have the questions of fact decided in the pending issue in the Common -Pleas by appearing before the auditor. They appeared in the first instance under protest, insisting upon their legal rights. When they appeared again upon a reference back to the auditor, the court had suspended their opinion on the motion in the feigned issue “ until the distribution be made in the assigned estate, if an account shall be filed in a reasonable time.” The issue had been awarded on the petition of the assignee — the present appellee — ■ and when awarded, all proceedings on the judgments were stayed until the feigned issue was decided; so that the hands of the appellants were tied by the orders of the court. Under such circumstances they cannot be held to have waived any legal right by appearing before the auditor. Nor were they bound to demand a new issue when one was already pending, upon which they had succeeded in obtaining a verdict in their favor. It would seem more reasonable to hold that the assignee was precluded from any other course than that which he had himself voluntarily adopted, without at least, with the approbation of the court, having the feigned issue in some way finally disposed of. It seems to us that the court ought not to allow him to withdraw it without the consent of the appellants. The only doubt we have entertained is, whether the appellants had any standing before the auditor, or in this court on appeal. The judgments of the appellants against David A. Smith were entered up in Lehigh county, May 11th 1870. The assignment was dated May 16th 1870. We presume, although the fact is not distinctly stated, that the fund in the hands of the assignee for distribution was the proceeds of real estate in Lehigh county sold by him. The judgments, if they were valid, were and continued to be liens on the lands in the hands of the purchasers. The contest should rather be with them. It is their business to see that these judgments are satisfied or set aside. If Weiler has undertaken to sell for an outside price, clear of all encumbrances, it would be at his risk if the liens were after-wards enforced against the land. Under the circumstances, however, the appellants having appeared before the auditor and claimed payment of the judgments out of this fund, may perhaps be held to have waived their liens as against the purchasers, aad we think therefore they ought not to be precluded from the benefit of this appeal.

Decree reversed, report set aside, and record remitted for further proceeding% when the issue pending in the Common Pleas shall be finally decided.